Southern Healthcare Services, Inc. v. Lloyd's of London

20 So. 3d 84, 2009 Miss. App. LEXIS 740, 2009 WL 3430325
CourtCourt of Appeals of Mississippi
DecidedOctober 27, 2009
Docket2008-CA-00642-COA, 2008-CA-01351-COA
StatusPublished
Cited by3 cases

This text of 20 So. 3d 84 (Southern Healthcare Services, Inc. v. Lloyd's of London) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Southern Healthcare Services, Inc. v. Lloyd's of London, 20 So. 3d 84, 2009 Miss. App. LEXIS 740, 2009 WL 3430325 (Mich. Ct. App. 2009).

Opinions

CARLTON, J.,

for the Court.

¶ 1. This is a consolidated appeal from two orders of the Jones County Circuit Court granting summary judgment to the Appellees,1 finding no issue of fact as to any of the Appellants’ claims and finding Southern Healthcare Services, Inc. (Southern) responsible for reimbursement of $701,153.54 in defense and settlement costs advanced by the Appellees. On appeal, the Appellants 2 argue that issues of material fact exist as to their claims against the Appellees asserting claims for breach of contract, tortious breach of contract, fraud, and breach of the duty of good faith and fair dealing. The Appellants sought compensation for their damages, punitive damages, and attorneys’ fees. In support of their claims for breach of contract, the Appellants also argue that the contract is ambiguous and should, therefore, be construed in their favor. The Appellants’ complaint also named Fox-Everett as a defendant. The complaint alleged Fox-Everett received a commission for selling the insurance and acted as the exclusive agent for the Appellants. The record reflects that the Appellants asserted that the Appellees should be bound by the contract as represented to the Appellants by Fox-Everett. The claims against Fox-Everett include breach of contract, breach of fiduciary duty, negligent misrepresentation, and gross negligence, all related to the deductible amounts specified in the insurance policy. The complaint alleged Fox-Everett was paid a commission for selling the policy at issue. Fox-Everett was not a party to the motions for summary judgment and is not a part of the present appeals.

¶ 2. When granting summary judgment to the Appellees and granting certification of the judgment under Rule 54(b) of the Mississippi Rules of Civil Procedure, the trial court did not dispose of the Appellants’ claims against Fox-Everett regarding the deductible amount. Therefore, the claims against Fox-Everett are not part of the present appeals. Any award of damages is at least in part predicated upon the deductible amount and the resolution of the claims against Fox-Everett. Therefore, we dismiss the appeal as improperly certified under Rule 54(b).

FACTS

¶ 8. Daleson and Medforce were limited liability companies that operated skilled long-term care facilities in Ellisville, Mississippi and Byram, Mississippi. Southern managed both Daleson and Medforce. The Appellants were insured against tort liability by Underwriters. Caronia is Underwriters’ third-party administrator.

¶ 4. The Appellants purchased a professional and general liability insurance policy from Underwriters in October 2002, and Fox-Everett received a commission for selling the policy. They renewed the policy in October 2003, with a $360,100 premi[86]*86um. The policy provided for a $250,000 per claim deductible for professional liability claims made under the policy. Southern is the First Named Insured under the policy, and the policy states that the First Named Insured is responsible for payment of the deductible. Although the policy consists of a policy for general liability and also a policy for healthcare professional liability, the parties agree that the claims, which led to the present causes of action, pertain only to the healthcare professional liability portion of the policy.

¶ 5. While covered by the policy, the Appellants were the subject of five tort lawsuits,3 of which they promptly informed the Appellees, as required by the terms of the policy. The lawsuits were filed in late 2003 and 2004. Underwriters, through its third-party administrator, Caronia, sent reservation-of-rights letters to the Appellants relative to each of the five tort suits. The letters acknowledged receipt of the claims and reserved Underwriters’ rights under the policy to indemnify the Appellants only for those claims covered by the policy. The reservation-of-rights letters also contained the following language:

As you are aware, Southern Healthcare Services, Inc., d/b/a Jones County Rest Home4 has a $250,000 deductible for each and every Professional Liability claim. Therefore, the first $250,000 of indemnity and/or claims related expenses will be paid directly by Southern Healthcare Services, Inc., d/b/a/ Jones County Rest Home.

Further, each of the reservation-of-rights letters informed the Appellants that Caro-nia had retained the law firm of Currie, Johnson, Griffin, Gaines & Myers to represent the Appellants in the causes of action. Caronia sent the letters directly to the nursing homes, rather than to Southern, the First Named Insured. The reservation-of-rights letters are not part of the insurance policy. The Appellants initially paid them attorneys directly;5 however, when the dispute arose over the deductible amount specified in the policy, the Appellants stopped paying their attorneys’ fees.

¶ 6. The Appellants assert that the Ap-pellees breached their contractual duty to defend by the delay in providing a defense, and the Appellants argue that they were unable to pay the deductible amounts to provide for their defense. According to the Appellants, they could not afford to continue paying Currie, Johnson, Griffin, Gaines & Myers directly, and their attorneys, retained by the Appellees, advised them to file bankruptcy. Daleson and Medforce filed for bankruptcy protection on January 10, 2005. Currie, Johnson, Griffin, Gaines & Myers continued to represent the Appellants until February 2006, when they withdrew from representation because neither the Appellants nor the Appellees had paid their fees.

¶ 7. Then, in August 2006, approximately two years after the lawsuits were filed against the Appellants, the Appellants filed a complaint against the Appellees alleging breach of contract, tortious breach of con[87]*87tract, fraud, and breach of the duty of good faith and fair dealing. After the Appellants filed their complaint, the Appel-lees settled all five tort suits on behalf of the Appellants during the months between December 2006 to August 2007. An affidavit in the record from an attorney for Underwriters indicates that the Appellees used the services of Currie, Johnson, Griffin, Gaines & Myers for resolution of the suits. Importantly, the record indicates no adverse judgment or ruling against the Appellants from the time the underlying tort suits were originally filed until them settlement.

¶ 8. After settling the five tort suits, the Appellees demanded repayment of the settlement amounts that fell within the deductible amounts specified in the insurance policy.6 In furtherance of their effort to collect the deductible amounts, the Appel-lees filed a counterclaim against Southern seeking recovery of the deductibles from the Appellants for the funds expended in settlement of the tort claims.

¶ 9. The Appellees sought summary judgment on both the Appellants’ breach of contract claims and on their own claims to recover the deductible. Finding that the Appellees performed their duties under the contract and no dispute of material fact existed, the circuit court granted the Appellees’ motions for summary judgment, dismissing the Appellants’ breach-of-contract claims and ordering Southern to reimburse the Appellees $701,153.54 in defense costs, expenses, and settlements advanced within the per-claim deductible.

¶ 10.

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Related

Southern Healthcare Services, Inc. v. Lloyd's of London
110 So. 3d 735 (Mississippi Supreme Court, 2013)
Southern Healthcare Services, Inc. v. Lloyd's of London
20 So. 3d 84 (Court of Appeals of Mississippi, 2009)

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Bluebook (online)
20 So. 3d 84, 2009 Miss. App. LEXIS 740, 2009 WL 3430325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-healthcare-services-inc-v-lloyds-of-london-missctapp-2009.