USF&G CO. v. John Deere Ins. Co.

830 So. 2d 1145, 2002 WL 1980402
CourtMississippi Supreme Court
DecidedAugust 29, 2002
Docket1999-CA-02032-SCT
StatusPublished
Cited by11 cases

This text of 830 So. 2d 1145 (USF&G CO. v. John Deere Ins. Co.) 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
USF&G CO. v. John Deere Ins. Co., 830 So. 2d 1145, 2002 WL 1980402 (Mich. 2002).

Opinion

830 So.2d 1145 (2002)

UNITED STATES FIDELITY & GUARANTY COMPANY
v.
JOHN DEERE INSURANCE COMPANY, Albert L. East, IV, Albert L. East, III and Ella May East.

No. 1999-CA-02032-SCT.

Supreme Court of Mississippi.

August 29, 2002.
Rehearing Denied December 5, 2002.

Michael Wayne Baxter, Charles G. Copeland, Janet G. Arnold, Ridgeland, attorneys for appellant.

Jan F. Gadow, Ridgeland, Ken R. Adcock, Jackson, Mark D. Morrison, Grenada, Brenda B. Bethany, C. Michael Ellingburg, Sr., Jackson, attorneys for appellees.

EN BANC.

*1146 WALLER, J., for the Court.

¶ 1. This appeal involves the issue of whether the two commercial automobile liability insurance policies should be prorated according to the coverage limits of each policy or whether they should be paid out according to the priority of coverage. We find that the two policies should not be pro-rated because, under Mississippi law, the insurer for the owner of the vehicle involved in the accident is the primary insurer. Even though the "other insurance" clauses in the two policies are identical, they do not conflict. The "other insurance" clause simply establishes the order of priority of payments. The insurer of the vehicle is first in the paying line of uninsured motorist benefits.

FACTS

¶ 2. This appeal from the Circuit Court of the First Judicial District of Hinds County arises out of an automobile accident between Albert L. East, IV ("Bert") and Thomas Blalack, an uninsured motorist. The accident was solely caused by Blalack's negligence. Bert suffered minor physical injuries. Albert L. East, III ("Al"), who was riding as a passenger in the vehicle driven by Bert, sustained injuries which required plastic surgery, reconstructive surgery of the left hip, reconstructive surgery of the left rotator cuff and prostate surgery to allow urination.

¶ 3. Al and Bert owned car dealerships in Natchez and Jackson. The Natchez dealership was insured by John Deere Insurance Company, and the Jackson dealership was insured by United States Fidelity and Guaranty Company ("USF & G"). Al and Bert were both listed as insureds on each policy. The vehicle involved in the accident was owned by the Natchez dealership and was insured by John Deere. The John Deere policy covered 98 vehicles with $20,000.00 in uninsured motorist coverage per vehicle, totaling $1,960,000.00 in available UM coverage. The USF & G policy was purchased by the Jackson dealership to cover 583 vehicles with $25,000.00 in UM coverage per vehicle, totaling $14,575,000.00 in available UM coverage. The total available UM coverage under both policies was $16,535,000.00.

¶ 4. Each of the policies contains the following identical "other insurance" clause:

5. OTHER INSURANCE

a. For any covered "auto" you own, this Coverage Form provides primary insurance. For any covered "auto" you don't own, the insurance provided by this Coverage Form is excess over any other collectible insurance.

¶ 5. Bert and Al filed separate lawsuits against Blalack alleging that his negligence caused the accident. Bert and Al also sued John Deere and USF & G, asserting claims for uninsured motorists benefits. Al's wife, Ella May, joined in Al's complaint and asserted a claim for loss of consortium.

¶ 6. USF & G answered the separate complaints and asserted that, while its insurance policy did apply to the accident, the UM benefits under the USF & G policy were excess over and above the John Deere UM coverage, which was primary.

¶ 7. The lawsuits filed by the Easts were consolidated for all purposes. The Easts filed a motion for partial summary judgment requesting the circuit court to hold that the Easts were entitled to stack the uninsured motorists coverage limits for every automobile covered under both the John Deere and USF & G policies. The circuit court granted the motion.

¶ 8. John Deere filed a cross-motion for summary judgment seeking a ruling that *1147 uninsured motorist benefits under its policy and USF & G's policy should be prorated on a co-primary basis to cover damages the Easts sustained in the accident. USF & G responded to John Deere's crossmotion and filed its own motion for summary judgment, seeking a judgment that the John Deere policy provided primary coverage and the USF & G policy provided excess coverage for any damages recovered by the Easts.

¶ 9. The circuit court granted John Deere's motion for summary judgment and denied USF & G's motion for summary judgment, holding that coverage under the John Deere and USF & G insurance policies should be prorated on a co-primary basis to satisfy any judgment obtained by the Easts.

¶ 10. After a trial, the jury returned a verdict in favor of Bert East in the amount of $5,000.00, and in favor of Al East in the amount of $500,000.00. Ella May East was awarded $0 damages on her claim of loss of consortium. Judgments against John Deere and USF & G were entered, along with a default judgment against Blalack, the uninsured motorist.

¶ 11. USF & G filed a motion for judgment notwithstanding the verdict, which was denied. The Easts also filed a motion for JNOV, or, in the alternative, for new trial or additur, which was also denied.

¶ 12. The circuit court granted John Deere's motion for entry of an amended judgment. The amended judgment provided for a pro rata sharing by John Deere and USF & G of the jury verdicts entered in favor of Al and Bert in proportion to the UM limits each insurance policy bore to the total coverage available, as follows:

1. Judgment is hereby granted in favor of A.L. East, III against United States Fidelity & Guaranty Company in the amount of $440,750.00 and in favor of A.L. East, III against John Deere Insurance Company in the amount of $59,250.00.

2. Judgment is hereby rendered in favor of A.L. East, IV against United States Fidelity & Guaranty Company in the amount of $4,407.50 and judgment is hereby entered in favor of A.L. East, IV against John Deere Insurance Company in the amount of $592.50.

Furthermore, the Easts were awarded post-judgment interest at a rate of 8% per annum.

¶ 13. USF & G appealed from the circuit court's denial of USF & G's motion for JNOV.[1] The Easts have asked that they be granted post-judgment interest on the amount of the judgment, at a rate of 8% per annum and an award of the 15% statutory penalty under Miss.Code Ann. § 11-3-23 (1991). On cross-appeal, John Deere requests that we set aside post-judgment interest and require that USF & G pay all post-judgment interest. If USF & G is unsuccessful in its appeal, John Deere and the Easts also ask for an award of the 15% statutory penalty.

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN GRANTING JOHN DEERE'S COUNTER MOTION FOR SUMMARY JUDGMENT.

II. WHETHER THE TRIAL COURT ERRED IN PRO-RATING THE DAMAGES BETWEEN *1148 USF & G AND JOHN DEERE.

¶ 14. We employ a de novo standard of review when reviewing a trial court's grant of summary judgment. Leslie v. City of Biloxi, 758 So.2d 430, 431 (Miss.2000).

¶ 15.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Guidant Mutual Insurance v. Indemnity Insurance Co. of North America
13 So. 3d 1270 (Mississippi Supreme Court, 2009)
Universal Underwriters Group v. State Farm
931 So. 2d 617 (Court of Appeals of Mississippi, 2005)
Allred v. Yarborough
843 So. 2d 727 (Mississippi Supreme Court, 2003)
Lori Allred v. Stephen M. Yarborough
Mississippi Supreme Court, 2000

Cite This Page — Counsel Stack

Bluebook (online)
830 So. 2d 1145, 2002 WL 1980402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/usfg-co-v-john-deere-ins-co-miss-2002.