Windmon v. Marshall

926 So. 2d 867, 2006 WL 947840
CourtMississippi Supreme Court
DecidedApril 13, 2006
Docket2004-CA-00528-SCT
StatusPublished
Cited by49 cases

This text of 926 So. 2d 867 (Windmon v. Marshall) 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
Windmon v. Marshall, 926 So. 2d 867, 2006 WL 947840 (Mich. 2006).

Opinion

926 So.2d 867 (2006)

Ollie WINDMON and Robert Joe Windmon
v.
Stephanie Ward MARSHALL and Mississippi Farm Bureau Insurance Company.

No. 2004-CA-00528-SCT.

Supreme Court of Mississippi.

April 13, 2006.

*868 Anita M. Stamps, attorney for appellant.

*869 Justin Strauss Cluck, Batesville, Kent E. Smith, Holly Springs, J. Tucker Mitchell, Andy Lowry, James R. Moore, Ridgeland, attorneys for appellee.

Before SMITH, C.J., CARLSON and DICKINSON, JJ.

SMITH, Chief Justice, for the Court.

¶ 1. Ollie and Robert Windmon filed suit against Stephanie Ward Marshall and Mississippi Farm Bureau Insurance Company (Farm Bureau) after Ollie Windmon was seriously injured when her vehicle ran off of the highway and struck a tree. Ollie Windmon claimed her injuries were due to Marshall's negligent act of failing to properly yield. Also, the Windmons claimed Farm Bureau was liable for committing alleged acts of bad faith in the investigation of their claim. The trial court ordered a bifurcation of this matter. In the first phase, the jury returned a verdict finding Windmon and Marshall equally at fault for the accident. During the second phase of the trial, after all of the evidence was presented, the trial court granted Farm Bureau's motion for a directed verdict. Feeling aggrieved, the Windmons subsequently filed this timely appeal.

FACTS

¶ 2. In June 2000, Stephanie Ward Marshall proceeded down her driveway in Hermanville, Mississippi, and attempted to enter Valley Moon Road. At the same instant Ollie Windmon was traveling toward Marshall on Valley Moon Road in her Ford Explorer. Prior to reaching the Marshall driveway, Windmon's Explorer veered off the road and struck a tree. After witnessing the crash, Marshall immediately rushed to Windmon's aid. At the scene Marshall assisted Windmon in exiting her vehicle. Also, because of the seriousness of the injuries Windmon sustained Marshall telephoned the hospital and requested an ambulance.

¶ 3. The facts are in dispute as to what actually caused the accident. Windmon claimed Marshall was attempting to pull out on the road, and to avoid a collision she swerved off of the road. Conversely, Marshall contended she stopped at the end of her driveway when Windmon ran off of the road in front of her for no apparent reason.

¶ 4. Within days after the accident, Windmon filed a loss notice claim with her insurer, Farm Bureau. Danita Lewis, Farm Bureau's adjuster, promptly paid medical and collision benefits, which she determined to be the only payable benefits allowable under policy. However, Windmon claimed she was also entitled to recover uninsured motorist benefits. Initially, Farm Bureau refused uninsured motorist benefits because the accident appeared to involve only one vehicle. Farm Bureau investigated the matter and was unable to discover Marshall's identity and the role she may have played in the accident. Even Ollie Windmon herself failed to inform Farm Bureau of Marshall's involvement.

¶ 5. Several months after the accident, the Windmons' counsel informed Farm Bureau of Marshall's identity and alleged Marshall's negligence was a cause in fact of the accident. Notwithstanding Windmon's allegations, Farm Bureau adopted Marshall's version of events, which supported that Marshall was not the proximate cause of Windmon's injuries. To avoid a trial on the issue of uninsured motorist benefits, Farm Bureau presented an offer of settlement to the Windmons.

¶ 6. Subsequently, Ollie and Robert Windmon filed suit against both Marshall and Farm Bureau in the Circuit Court of Claiborne County on December 10, 2001. The Windmons alleged that Marshall, as *870 an under or uninsured driver, through her negligent acts was the proximate cause of the automobile accident. Additionally, the complaint alleged that Farm Bureau failed to use good faith in handling the Windmons claim.

¶ 7. In August 2002, the Windmons filed an application for entry of default judgment and supporting affidavit. In December 2002, the Windmons filed an additional application for entry of default and supporting affidavit. Entry of default was subsequently entered and docketed by the circuit court clerk.

¶ 8. In April 2003, Marshall filed a motion to set aside the clerk's entry of default and for leave of court to file responsive pleadings. On May 6, 2003, a hearing was held before the trial court wherein the Windmons attempted to have a default judgment entered against Marshall. However, the trial court set aside the entry of default and, at the Windmons' request, continued a trial on the merits until September 2003. Additionally, the trial court determined it was proper to bifurcate the trial on issues of negligence and bad faith.

¶ 9. On September 3, 2003, opening statements were given regarding Marshall's negligence, thus commencing the first phase of the bifurcated trial. In the first phase of the trial the jury returned a unanimous verdict finding each Ollie Windmon and Stephanie Marshall fifty percent at fault for the accident.

¶ 10. The second phase of the trial dealt with the Windmons allegations of Farm Bureau's bad faith in its investigation of the uninsured motorist claim. During this phase Windmon called several witnesses to prove bad faith on behalf of Farm Bureau. After Windmon presented her case and without presenting any witnesses of its own, Farm Bureau motioned the trial court for a directed verdict. The trial court granted Farm Bureau a directed verdict and dismissed the second phase of the trial.

ANALYSIS

I. ENTRY OF DEFAULT

¶ 11. "The decision to grant or set aside a default judgment is addressed to the sound discretion of the trial court." Tatum v. Barrentine, 797 So.2d 223, 227 (Miss.2001) (citing Williams v. Kilgore, 618 So.2d 51, 55 (Miss.1992)). The trial court's discretion must be exercised in accordance with the M.R.C.P. 55(c) and 60(b). Tatum, 797 So.2d at 227 (citing Guar. Nat'l Ins. Co. v. Pittman, 501 So.2d 377, 388 (Miss.1987)). Further, "absent abuse of discretion, we will not disturb the rulings of the trial court on a default judgment." Id.

¶ 12. The Windmons contend the trial court erred and abused its discretion when it set aside the clerk's entry of default against Marshall without a hearing on the grounds for setting it aside. The Windmons call this Court's attention to the following subsection of Rule 55 of the Mississippi Rules of Civil Procedure:

(b) Judgment. In all cases the party entitled to a judgment by default shall apply to the court therefor. If the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing of such application; however, judgment by default may be entered by the court on the day the case is set for trial without such three days' notice. If in order to enable the court to enter judgment or to carry it into effect it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make *871 an investigation of any other matter, the court may conduct such hearing with or without a jury, in the court's discretion, or order such references as it deems necessary and proper.

(emphasis added).

¶ 13. However, this rule does not support the Windmons' argument.

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Cite This Page — Counsel Stack

Bluebook (online)
926 So. 2d 867, 2006 WL 947840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/windmon-v-marshall-miss-2006.