Smith v. Payne

839 So. 2d 482, 2002 WL 24607
CourtMississippi Supreme Court
DecidedJanuary 10, 2002
Docket2000-CA-00603-SCT
StatusPublished
Cited by15 cases

This text of 839 So. 2d 482 (Smith v. Payne) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Payne, 839 So. 2d 482, 2002 WL 24607 (Mich. 2002).

Opinion

839 So.2d 482 (2002)

Jason Ray SMITH, As Guardian and Next of Friend of April Alvarez, A Minor, and April Alvarez, individually, and the Estate of Antonio Alvarez
v.
John PAYNE and Massengill Trucking Service, Inc.

No. 2000-CA-00603-SCT.

Supreme Court of Mississippi.

January 10, 2002.
Rehearing Denied March 20, 2003.

*483 Jimmy D. Shelton, Jason Lee Shelton, Tupelo, Attorneys for Appellants.

Stuart Robinson, Jr., Charles Stephen Stack, Jr., Jackson, Attorneys for Appellees.

EN BANC.

SMITH, P.J., for the Court.

¶ 1. This case arises as a result of an automobile collision which occurred on or about May 29, 1997, in Lee County, Mississippi. The plaintiffs appeal the Circuit Court of Lee County's denial of their motion *484 for judgment notwithstanding the verdict, or, in the alternative, motion for a new trial. The plaintiffs seek to reverse the decision of the jury and trial court, particularly as to the finding of no liability of the defendants, John Payne and Massengill Trucking.

FACTS

¶ 2. On the afternoon of May 29, 1997, an automobile accident occurred on U.S. Highway 45, just outside of Tupelo, Mississippi. At the time of the accident, Doris Hood ("Hood") was driving in a northerly direction in the inside lane of Highway 45. At the same time, John Long ("Long"), a minor, was operating a vehicle in the outermost lane. As the Long and Hood vehicles approached the Highway 78 Highway 45 alternate junction, a semi-tractor trailer owned by Massengill Trucking, Inc., ("Massengill") and driven by John Payne ("Payne"), began to exit off Highway 78 and merge with Highway 45 traffic. As Payne entered the acceleration lane, the Long and Hood vehicles were both directly approaching from the south. Payne never left the acceleration lane prior to the accident. The posted exit speed for the entrance ramp for Highway 45 was 20 mph, and, by Payne's own testimony, the truck was exceeding the posted speed as it charged down the entrance ramp.

¶ 3. Upon seeing the Payne vehicle coming off the ramp at a high speed, Long abruptly changed lanes to the inside lane without signaling and without looking over his shoulder to see if the lane was clear. At this point, Hood's vehicle was approaching rapidly from the rear of the inside lane, and accordingly she was forced to apply her brakes to avoid a collision with Long's vehicle. Hood subsequently lost control of her vehicle and crossed over the median into the southbound lanes of Highway 45. Thereafter, she struck the vehicle driven by April Alvarez on Highway 45 South.

¶ 4. As a result of the severe impact of Hood's vehicle into Alvarez's vehicle, Alvarez was injured and her husband, Antonio Alvarez, who was a passenger, was killed. Alvarez and Jason Ray Smith, as guardian and next friend, (hereafter collectively referred to as "Smith" or plaintiffs), initially filed suit against Doris Hood, alleging her negligence as a proximate cause of the accident. Later, Smith amended his complaint to include Long, Payne, and Massengill as defendants. Hood and her husband subsequently filed a cross-complaint against Long, Payne, and Massengill.

¶ 5. Prior to trial, settlements were reached between Smith and the Hoods, Smith and Long, and the Hoods and Long.[1] This left only Payne and Massengill as the remaining defendants. The defendants requested that the Hoods produce their settlement agreement with Long. The Hoods, however, refused, and the defendants then filed a Motion to Compel seeking to have the Hoods disclose the amount of settlement with Long and seeking copies of all settlement documentation. Specifically, the defendants wanted to study the settlement documentation to determine whether Long and the Hoods entered into what is commonly referred to as a "Mary Carter" agreement.

¶ 6. A telephonic hearing was held on this motion on Wednesday, September 15, 1999. During the hearing, the trial judge specifically asked counsel for the Hoods whether there was a "Mary Carter" agreement. With the understanding that there was no such agreement, the judge denied the defendants' motion to compel. The judge also ruled that neither the fact of *485 settlement nor its amount would be admissible at trial.

¶ 7. On the Saturday before trial, counsel for the Hoods unexpectedly forwarded a letter to the defendants and the trial judge at his home, indicating that there was a written agreement. After reviewing the agreement produced by the Hoods' counsel, the trial judge reversed his telephonic ruling on the Motion to Compel. The judge stated the following about the recently-produced agreement:

After going through it [the agreement] and reading the document, it appears to the Court that part of it was that the party had settled had agreed in fact to testify as to whatever was necessary according to the agreement. And based upon what that agreement was, the Court is of the opinion that it is a Mary Carter agreement. And because of that agreement, the Court is of the opinion that the amount of the settlement and anything that's related to that, the fact that they were going to testify, is and should be used by the defense in this case, and the Court is accordingly going to rule so.

¶ 8. Counsel for the Hoods revealed to the jury during voir dire the fact that a settlement had occurred as well as the contents of the settlement agreement, namely the amount of the settlement as well as Long's agreement to cooperate with the Hoods and testify at trial.[2] Also, on direct examination of Long, counsel for the Hoods asked Long whether he had agreed to cooperate with the Hoods and testify at trial. On cross-examination of Long, defense counsel asked Long whether her had reached a settlement with the Hoods and the amount of the settlement. At that time, defense counsel sought to admit the settlement agreement into evidence. Defense counsel did not ask Long about his agreement to cooperate and testify. The jury returned a verdict in favor of the Smith and Hood. They assessed percentages of fault as follows: Hood— 70%; Long—30%; Payne—0%. They awarded damages to Smith in the amount of $1.5 million. They awarded no damages to the Hoods. Smith's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was denied. Smith timely filed a notice of appeal.[3]

¶ 9. Smith raises the following issues on appeal:

I. WHETHER THE SETTLEMENT AGREEMENT BETWEEN THE HOODS AND JOHN LONG WAS A "MARY CARTER AGREEMENT" WHICH WAS PROPERLY INTRODUCED TO THE JURY?

II. WHETHER THE INSTRUCTIONS GRANTED TO THE DEFENDANTS WERE PROPER?

ANALYSIS

I.

¶ 10. The parties on appeal spend tremendous effort arguing whether the settlement agreement entered into by the Hoods and Long was a Mary Carter agreement. Regardless of the characterization of the agreement, it is apparent that the admission into evidence of the settlement agreement raises three evidentiary questions before this Court: (a) Was it error to inform the jury of the fact that Long and the Hoods had settled; (b) Was it error to inform the jury of the amount of the settlement; and (c) Was it error to inform the jury that, in the settlement *486 agreement, Long agreed to "cooperate with Plaintiffs to prosecute their claims against Massengill Trucking and will testify at trial as needed."

¶ 11. Counsel for the Hoods informed the jury during voir dire of the settlement, the amount of the settlement, and Long's agreement to cooperate and testify.

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Cite This Page — Counsel Stack

Bluebook (online)
839 So. 2d 482, 2002 WL 24607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-payne-miss-2002.