Bolden v. Murray

• Decision Date: 28 August 2012
• Docket Number: No. 2010–CA–01774–COA.,2010–CA–01774–COA.
• Citation: 97 So.3d 710
• Court: Mississippi Court of Appeals
• Parties: Artis BOLDEN and Marilyn Bolden, Individually and Marilyn Bolden as Executrix of the Estate of Brandon J. Bolden, on behalf of the Estate and all the Wrongful Death Beneficiaries of Brandon Bolden, Deceased, Appellants v. Jamaal L. MURRAY and Mississippi Farm Bureau Insurance Company, a Mississippi Corporation, Appellees.

97 So.3d 710

Artis BOLDEN and Marilyn Bolden, Individually and Marilyn Bolden as Executrix of the Estate of Brandon J. Bolden, on behalf of the Estate and all the Wrongful Death Beneficiaries of Brandon Bolden, Deceased, Appellants

v.Jamaal L. MURRAY and Mississippi Farm Bureau Insurance Company, a Mississippi Corporation, Appellees.

No. 2010–CA–01774–COA.

Court of Appeals of Mississippi.

April 17, 2012.

Rehearing Denied Aug. 28, 2012.

Rick D. Patt, Dennis C. Sweet III, Jackson, attorneys for appellants.

James R. Moore, Jr., Janet G. Arnold, Ridgeland, Sam Starnes Thomas, Madison, Dale Gibson Russell, attorneys for appellees.

EN BANC.

BARNES, J., for the Court:

¶ 1. This case arises out of a June 14, 2007 automobile accident in which Brandon Bolden was killed. His parents, Artis and Marilyn Bolden (the Boldens), filed suit as wrongful death beneficiaries against Jamaal Murray and Mississippi Farm Bureau Casualty Insurance Co. (Farm Bureau), the insurer of the Boldens' vehicle in which the accident occurred. The Boldens contend Murray was driving the Boldens' vehicle at the time of the accident, and/or another vehicle was involved in the accident, thus entitling them to uninsured-motorist coverage under their policy with Farm Bureau. Alternatively, the Boldens contend Murray, as a passenger, “negligently distract[ed]” Brandon; Farm Bureau's attorneys should recuse; and Farm Bureau was guilty of “spoilation of evidence” concerning the vehicle.

¶ 2. The Circuit Court of Hinds County granted summary judgment to Murray and Farm Bureau. We find no error and affirm.

FACTS

¶ 3. Marilyn Bolden, Brandon's mother, owned a two-door convertible 2003 AMG Mercedes SL55 Kompressor automobile. On the night of the crash, June 14, 2007, Brandon was using his mother's vehicle. He and a friend, Murray, went to a Jackson, Mississippi bar and restaurant called Hamp's Place, where they spent part of the evening. After leaving Hamp's Place for a while, they returned and picked up food Murray had ordered. Around 3 a.m., they headed to a different bar in the Mercedes. Murray testified that Brandon was driving the vehicle while Murray was in the passenger seat, eating a chicken plate. Neither was wearing a seat belt. Murray also testified that Brandon was speeding and lost control of the vehicle at the intersection of Medgar Evers Boulevard and Sunset Drive (not far from Hamp's Place), causing the vehicle to leave the road, spin around, and ultimately come to rest against a tree. Murray stated he was thrown from the vehicle and injured. He called to report the accident using a cell phone he had borrowed from someone who came to the accident scene. Murray then fled the scene after police and emergency medical personnel arrived because of an outstanding warrant for his arrest on another matter. Murray claimed no other vehicle was involved in the accident.

¶ 4. The Mercedes was rendered a total loss. Directly following the accident, the vehicle was towed to the City of Jackson's impound lot. Then, in early July 2007, the Boldens had the vehicle moved to ABC Towing because they wanted to have a “specialist” look at it. Also in July 2007, Farm Bureau retained the Copeland, Cook, Taylor & Bush law firm to represent it with regard to the investigation of the accident and any potential uninsured-motorist claim that might arise. On July 10, 2007, Copeland Cook sent a letter to the Boldens informing them of the firm's representation. The Boldens were also instructed to preserve the vehicle's then-condition at ABC Towing pending Farm Bureau's investigation of the accident. They were also requested to move the vehicle to Insurance Auto Auctions (IAA) to avoid further storage fees at ABC Towing.

¶ 5. In a letter dated July 16, 2007, Farm Bureau sent Marilyn Bolden a check for $57,196.25 for settlement of the collision claim for the property damage to the vehicle. As a result, the title to the vehicle was transferred to Farm Bureau. Farm Bureau also advised the Boldens that it would be responsible for storage fees at ABC Towing only through July 31, 2007. The Boldens complied with Farm Bureau's request and agreed to move the vehicle to IAA on July 24, 2007. Barry Kelley, on behalf of Farm Bureau, contacted IAA and placed a “hold” on the vehicle salvage, instructing IAA that the vehicle be preserved. Business records from IAA confirm these instructions by Farm Bureau.

¶ 6. In September 2007, Murray's statement was taken. In October 2007, Farm Bureau wrote the Boldens concluding that its investigation showed Brandon was the individual driving the Mercedes, and also that no other vehicle had been involved in the accident or made contact with the Mercedes. Therefore, under the Boldens' insurance policy, uninsured-motorist coverage would not cover the accident. In response, the Boldens wrote Farm Bureau requesting various information or reports on the accident and asking how long the vehicle would be stored at IAA. In early November 2007, Farm Bureau learned that on September 6, 2007, against its instructions, IAA sold the vehicle salvage to a third party in Florida, which had sold the salvage to yet another buyer. Farm Bureau was unsuccessful in retrieving any portion of the vehicle wreckage. Also in November 2007, Murray's claim for damages arising from the accident was settled.

¶ 7. On February 20, 2009, the Boldens filed a complaint against Farm Bureau and Murray. Farm Bureau's motion for summary judgment was filed in November 2009, claiming the Boldens are not entitled to uninsured-motorist benefits because it was undisputed Brandon was the driver of the Mercedes, and there was not a second vehicle involved.¹ Further, there was only one eyewitness to the accident—codefendant Murray. Additionally, Farm Bureau argued against the Boldens' claim that Farm Bureau is guilty of spoliation of evidence because the salvage of the vehicle was lost or destroyed. Murray's motion for summary judgment was filed in December 2009, arguing the Boldens' negligence claims against him for contributing to the accident were contrary to the evidence.

¶ 8. The Boldens claimed that due to the driver's seat being in a “locked, forward position, which was not the usual position of the car when driven by Brandon,” the issue of the driver's identity was a factual issue for the jury. The trial court found no support for this contention. Murray testified Brandon was driving at the time of the accident. Murray also stated Brandon never let Murray drive this car. Finally, Murray stated that no other car was involved in the accident.

¶ 9. On June 11, 2010, the trial court entered an order staying consideration of the motions for summary judgment and limiting discovery to the sole issue of the identity of the driver at the time of the accident. Additionally, on this same date, the trial court entered an order denying the Boldens' motion to recuse Farm Bureau's counsel of record, Copeland Cook. The Boldens alleged a conflict of interest relating to the firm's role in having the vehicle moved and in settling Murray's claims from the wreck on behalf of Brandon and the Boldens.

¶ 10. After discovery was limited to the identity of the driver, the Boldens deposed the three police officers who arrived at the scene. None was able to identify the driver, but Officer Perry Tate stated several other people “that were gathering around the scene [were] saying that [when] Brandon left the club ... he was driving the vehicle.” These people were not identified in the officer's report because they “didn't really want to get involved.” These people were not separately identified or deposed. Farm Bureau had provided the Bolden's a list of potential witnesses and their telephone numbers before the Boldens filed their complaint.

¶ 11. Officer Joseph Cotton testified that the only evidence that Brandon was driving came from interviews with Murray and Caleb Hampton, the nightclub owner, weeks after the accident. Officer Cotton, who stated that he was an accident reconstructionist, testified that his investigation of the accident showed no physical or other evidence that anyone other than Brandon was operating the accident vehicle. Additionally, during the course of the lawsuit, over 800 photographs of the accident scene and vehicle were produced, some of which are part of the record on appeal.

¶ 12. The trial court entered its order granting Murray's and Farm Bureau's motions for summary judgment on September 28, 2010. The Boldens timely appealed.

STANDARD OF REVIEW

¶ 13. The standard of review of a trial court's grant of a motion for summary judgment is de novo. Buckel v. Chaney, 47 So.3d 148, 152–53 (¶ 9) (Miss.2010) (citing Whitaker v. Limeco Corp., 32 So.3d 429, 433–34 (¶ 10) (Miss.2010)). Therefore, this Court must use “a factual review tantamount to that of the trial court when considering evidentiary matters in the record.” Id. at 153 (quoting Moss v. Batesville Casket Co., 935 So.2d 393, 398 (¶ 15) (Miss.2006)).

¶ 14. In conducting its review, the appellate court looks “at all evidentiary matters before [it], including admissions in pleadings, answers to interrogatories, depositions, and affidavits.” Brown ex rel. Ford v. J.J. Ferguson Sand & Gravel Co., 858 So.2d 129, 130 (¶ 5) (Miss.2003) (citing Lee v. Golden Triangle Planning & Dev. Dist., Inc., 797 So.2d 845, 847 (¶ 5) (Miss.2001)). This evidence will be viewed in the light most favorable to the nonmoving party. Id. (citing Leslie v. City of Biloxi, 758 So.2d 430, 431 (¶ 5) (Miss.2000)).

¶ 15. “The party requesting summary judgment bears the burden of demonstrating that no genuine issue of material fact exists.” Buckel, 47 So.3d at 153 (¶ 10) (citing Watson Quality Ford, Inc. v. Casanova, 999 So.2d 830, 833 (¶ 7) (Miss.2008)). “When the moving party has supported its motion in accordance with Mississippi Rule of Civil Procedure 56, ‘an adverse party may not rest upon the mere allegations or denials of his pleadings; his...