United Services Auto. Ass'n v. Stewart

919 So. 2d 24, 2005 WL 1384771
CourtMississippi Supreme Court
DecidedJune 9, 2005
Docket2004-CA-01540-SCT
StatusPublished
Cited by14 cases

This text of 919 So. 2d 24 (United Services Auto. Ass'n v. Stewart) 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
United Services Auto. Ass'n v. Stewart, 919 So. 2d 24, 2005 WL 1384771 (Mich. 2005).

Opinion

919 So.2d 24 (2005)

UNITED SERVICES AUTOMOBILE ASSOCIATION
v.
Deborah C. STEWART, Individually and on Behalf of Other Wrongful Death Beneficiaries of Robert Earl Stewart, Jr.

No. 2004-CA-01540-SCT.

Supreme Court of Mississippi.

June 9, 2005.

*25 Gerald Lee Kucia, Jackson, attorney for appellant.

Jay Max Kilpatrick, Jackson, attorney for appellee.

EN BANC.

CARLSON, Justice, for the Court:

¶ 1. United Services Automobile Association (USAA) appeals to us from the Forrest County Chancery Court's grant of summary judgment in favor of its deceased insured's wrongful death beneficiaries, thus denying USAA's request for a set-off based on the liability coverage provided by a third-party tortfeasor's insurance carrier. Finding that the chancellor incorrectly granted summary judgment in favor of the plaintiffs, we reverse the chancellor's judgment and remand this case for further proceedings.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On April 20, 2002, Robert Earl Stewart (Robert) was killed while operating his 1999 BMW motorcycle south on Interstate 59 in Hattiesburg, Forrest County, Mississippi. In a later-filed complaint, Deborah C. Stewart, individually and on behalf of other wrongful death beneficiaries of Robert (hereinafter "Deborah"), alleged that Joseph Rowell's negligent operation of his motor vehicle was the sole proximate cause of the accident and Robert's death.

¶ 3. Prior to his death, Robert had contracted with USAA to provide his automobile insurance. Under automobile policy number XXXXX-XX-XXU-7101-4 ("the policy"), USAA provided insurance coverage[1]*26 for five vehicles for the period from April 14, 2002, to October 14, 2002. Each vehicle had uninsured/underinsured motorists (UM/UIM) coverage in the amount of $10,000. USAA acknowledged that there was stacked UM/UIM coverage in the total amount of $50,000, but asserted that it was entitled to a set-off in the amount of the liability coverage under the Rowell insurance policy. Rowell was a minor who had coverage under a State Farm Insurance Company policy during the relevant time period, based on his parents' automobile policy number XXXX-XXX-XXH. This policy provided for liability coverage in the maximum amount of $25,000.

¶ 4. On November 18, 2003, Deborah filed a Complaint for Declaratory Judgment in the Chancery Court of the First Judicial District of Hinds County pursuant to Miss. R. Civ. P. 57, arguing that USAA was not entitled to any "set-off" amount pursuant to the insurance policy purchased by Robert inasmuch as Deborah would not be "made whole" for Robert's death by the payment of the UM/UIM benefits in the amount of $50,000.[2]

¶ 5. Upon timely motion by USAA, Deborah's case was transferred to the Chancery Court of Forrest County. After USAA answered the complaint, Deborah filed a motion for summary judgment, arguing that USAA was not entitled to offset the amount of liability coverage that Rowell held on April 20, 2002. USAA also filed a motion for summary judgment and claimed that it was entitled to off-set the amount of Rowell's liability coverage.

¶ 6. After a hearing the chancery court granted Deborah's motion for summary judgment and denied USAA's motion for summary judgment. Relying on this Court's decision in Hare v. State, 733 So.2d 277 (Miss.1999), where we adopted the "made whole" rule of subrogation, the chancery court found that USAA was not entitled to a set off in the amount of the liability coverage held by Rowell. The chancellor entered a final judgment pursuant to Miss. R. Civ. P. 54(b), and USAA timely appealed to us.

DISCUSSION

¶ 7. The standard of review for summary judgment is well-established by this Court:

Rule 56(c) of the Mississippi Rules of Civil Procedure allows summary judgment where there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law. To prevent summary judgment, the nonmoving party must establish a genuine issue of material fact by means allowable under the rule. Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997); Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991).
This Court employs a de novo standard in reviewing a lower court's grant of summary judgment. Mississippi Ethics Comm'n v. Aseme, 583 So.2d 955, 957 (Miss.1991); Cossitt v. Federated Guaranty Mut. Ins. Co., 541 So.2d 436, 438 (Miss.1989). Evidentiary matters are viewed in a light most favorable to the nonmoving party. Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1354 (Miss.1990). If any triable issues of material fact exist, the lower court's decision to grant summary judgment will be reversed. Otherwise, the summary judgment is affirmed. Richmond, 692 So.2d at 61; Brown v. *27 Credit Center, Inc., 444 So.2d 358, 362 (Miss.1984).

Hare, 733 So.2d at 279.

¶ 8. Focusing on today's case, the applicable sections of Robert's policy are as follows:

PART C—UNINSURED MOTORIST COVERAGE
INSURING AGREEMENT
A. UMBI Coverage. We will pay compensatory damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of BI (bodily injury) sustained by a covered person and caused by an auto accident.
* * * * *
E. We will pay under these coverages only after the limits of liability under any of the following that are applicable to the uninsured motor vehicle have been exhausted by payment of judgment or settlements:
1. Liability bonds or policies; or
2. Deposits of cash or securities.
LIMIT OF LIABILITY
* * * * *
D. Whether Paragraph A or Paragraph B applies[3]:
2. The limits of liability under UMBI Coverage (each person each accident) and UMPD Coverage shall be reduced by all sums paid because of BI or PD by or on behalf of the owner or operator of the uninsured motor vehicle.
NON-DUPLICATION
No covered person will be entitled to receive duplicate payments under this coverage for the same elements of loss which were:
A. Paid because of the BI or PD by or on behalf of persons or organizations who may be legally responsible.

(Emphasis Added).[4]

¶ 9. Based on the stacked UM/UIM coverage available, USAA, pursuant to the policy provisions, tendered to Deborah the amount of $50,000, minus a "set off" of $25,000 based on the liability coverage provided under Rowell's insurance policy. Deborah refused USAA's tender of payment, arguing that the $50,000 available in UM/UIM benefits from USAA and the $25,000 available from the at-fault driver did not reflect the true present value of Robert's lost income.

¶ 10. The chancellor held that USAA would typically be entitled to a set-off on most of the UM claims made under its policies. The chancellor stated that because this was a "catastrophic situation which involve[d] the death of a gainfully employed 45 year-old male who made approximately $25,000 per year," the set-off asserted by USAA was not enforceable until Deborah, as the insured, was made whole.

¶ 11. The "made whole" rule is "the general principle that an insurer is not entitled to equitable subrogation until the insured has been fully compensated." Hare,

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Cite This Page — Counsel Stack

Bluebook (online)
919 So. 2d 24, 2005 WL 1384771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-services-auto-assn-v-stewart-miss-2005.