Capital City Ins. v. GB" Boots" Smith, No. 2002-CA-01896-SCT.

• Decision Date: 28 October 2004
• Docket Number: No. 2002-CA-01896-SCT.
• Parties: CAPITAL CITY INSURANCE COMPANY and W.L. Wicker d/b/a Wicker Logging v. G.B. "BOOTS" SMITH CORPORATION.
• Court: Mississippi Supreme Court

889 So.2d 505

CAPITAL CITY INSURANCE COMPANY and W.L. Wicker d/b/a Wicker Logging v. G.B. "BOOTS" SMITH CORPORATION.

No. 2002-CA-01896-SCT.

Supreme Court of Mississippi.

October 28, 2004.

Rehearing Denied January 6, 2005.

Brent E. Southern, Patrick M. Tatum, Ridgeland, William T. May, Newton, attorneys for appellants.

Brett Woods Robinson, Laurel, Christopher Brian McDaniel, attorneys for appellee.

EN BANC.

EASLEY, Justice, for the Court.

PROCEDURAL HISTORY

¶ 1. G.B. "Boots" Smith Corporation (Boots Smith) was awarded a contract with the Mississippi Department of Transportation (MDOT) for improvements being made to a right of way along Interstate 20 in Scott and Newton Counties. Boots Smith hired a subcontractor, W.L. Wicker d/b/a Wicker Logging (Wicker Logging), to clear some timber on the right-of-way. Capital City Insurance Company (Capital City) insured Wicker Logging and as part of the terms of the sub-contract with Boots Smith, Wicker Logging had Capital City add Boots Smith as an insured on its general liability policy.

¶ 2. Boots Smith filed suit against Wicker Logging and Capital City in the Circuit Court of the Second Judicial District of Jones County, Mississippi, for damages arising out of the cost of repairs to the ditches. Wicker Logging filed a counter-claim against Boots Smith for services rendered, claiming payment of money owed, and delay costs. Capital City filed a counter-claim and a cross-claim for declaratory judgment regarding the coverage under the insurance policy.

¶ 3. The Jones County Circuit Court, Judge Billy Joe Landrum presiding, found that Capital City's insurance policy provided coverage to both Boots Smith and Wicker Logging. In addition, the trial court ruled on two directed verdicts. The first directed verdict was in favor of Boots Smith and determined that Wicker Logging was responsible for the damage to the ditches on the right-of-way. Therefore, Wicker Logging and Capital City were liable to Boots Smith for costs associated with the repair of the ditches by Boots Smith. The second directed verdict was in favor of Wicker Logging and determined that Boots Smith owed Wicker Logging the balance of payment pursuant to the contract.¹ The trial court submitted to the jury the issues of the actual damage amount owed to Boots Smith for the repairs and whether Wicker Logging was entitled to damages for the delays. The jury awarded Boots Smith $167,280.63 for the costs of repairs to the ditches and awarded Wicker Logging $86,747 ($54,000 for 9 days of delays, $28,476 for the unpaid portion of the contract and $4,271 as 15% of the unpaid contract). The trial court subsequently reduced Wicker Logging's damage award by $4,271.

¶ 4. Boots Smith and Wicker Logging both filed post-trial motions seeking attorneys fees and interest. The trial court granted the motion as to Boots Smith and denied the motion as to Wicker Logging. In addition, Wicker Logging filed a post-trial motion for new trial and judgment as a matter of law, and Capital City filed a post trial motion for reconsideration, new trial or in the alternative a JNOV. The trial court denied both Wicker Logging and Capital City's post-trial motions.

FACTS

¶ 5. Boots Smith was awarded a contract with MDOT to perform some improvements on Interstate 20 in Scott and Newton Counties. Boots Smith hired Wicker Logging to clear timber from the right-of-way areas. Wicker Logging was to received $60,000 and the timber as payment for the project. A "fell-a-buncher" which is a large piece of equipment was used by Wicker Logging to clear the right-of-ways. In order to gain access to some of the trees, the equipment had to pass over concrete culverts or ditches located between the interstate and the right-of-way. When they were crossed by the fell-a-buncher, some of the ditches were damaged. MDOT gave Boots Smith a list of damaged ditches and sought repair of the damage to the ditches by Boots Smith. MDOT owed Boots Smith money for work performed on the road project and withheld payment of the funds until Boots Smith repaired the ditches. Once it completed the repairs, Boots Smith requested payment from Wicker Logging for the repairs to the ditches.

¶ 6. Wicker Logging refused to pay Boots Smith for the repair work, and Capital City denied coverage to both Boots Smith and Wicker Logging. Thus, Boots Smith filed suit against Wicker Logging and Capital City. Wicker Logging filed a counter-claim against Boots Smith and Capital City filed a counter-claim, cross-claim and a declaratory judgment pursuant to the coverage under the insurance policy. Following a jury verdict and an order granting attorney fees in favor of Boots Smith and the denial of post-trial motions by Wicker Logging and Capital City, the following issues were raised on appeal:

STATEMENT OF THE ISSUES

A. Wicker Logging

I. Whether the Court erred in granting Boots Smith's motion for directed verdict and further erred in denying Wicker Logging's motion for directed verdict.

II. Whether the court erred in failing to grant Wicker Logging's motion in limine precluding Boots Smith's timber expert from testifying as to profits made by Wicker Logging from the sale of the cut timber.

III. Whether the court erred by denying the motion to bifurcate seeking to preclude testimony that Wicker Logging maintained insurance.

IV. Whether the trial court erred in granting Boots Smith attorney's fees and interest.

V. Whether the trial court erred in granting an offset of judgments.

VI. Whether the trial court erred by denying Wicker Logging's motion to transfer venue.

B. Capital City Insurance

I. Whether the trial court was biased toward Boots Smith throughout the proceedings, warranting reversal.

II. Whether Boots Smith put on sufficient proof to establish liability on the part of Wicker Logging.

III. Whether Boots Smith put on sufficient proof to establish damages.

IV. Whether the trial court erred by denying the motion to bifurcate the trial.

V. Whether the trial court erred by denying Capital City's declaratory judgment action.

LEGAL ANALYSIS

¶ 7. Wicker Logging and Capital City raise a number of issues on appeal. Two of the combined eleven issues are dispositive of this appeal. Accordingly, the first issue will addressed concerns whether the trial court erred by refusing to bifurcate the trial. Both Wicker Logging in its issue III and Capital City in its issue IV raise bifurcation on appeal. The second issue that will be addressed is venue.

I. Whether the trial court erred by denying the motion to bifurcate the trial.

¶ 8. Both Wicker Logging and Capital City argue that the trial court erred by denying a motion to bifurcate the trial. On the morning of the trial, the trial judge heard arguments on this motion.

[Capital City]: We have another matter we need to bring up then. Your Honor, in light of the complicated issue involved here and the fact that we are going to have to present matters of law and fact to the jury and call witnesses, the issue regarding coverage is premature at this point because there has been no determination as who would be the, "Covered party" under the policy. For that reason we think in an attempt to avoid confusing issues to the jury, to avoid prejudice to any party in the lawsuit, we should bifurcate these issues and let the liability issue be decided first as between Boots Smith and Wicker by mention of the fact that there is an existence of an insurance company or policy may or may not be available to satisfy the judgment. As to that point —

The Court: What is your response Mr. Melvin?

Mr. Melvin²: Court, please, again this matter has been filed for some length of time. The Lewis case provided that that could be — the declaratory judgment could be joined in this type of suit. It also stated that it could be called up and disposed of prior to the hearing. This was not done. There has been more than an abundant length of time. There are the problems in bifurcating the trial. It is that the testimony in — I have not been replying to the issues in the declaratory judgments because there are issues that are also complicated. And the same issues involved. And not having a position, the only thing I know to do is put a jury in the box and try all the issues in front of the jury.

The Court: Motion overruled.

¶ 9. The court papers do not reflect that a motion to bifurcate was filed with the Jones County Circuit Court by either Wicker Logging or Capital City. Both Wicker Logging and Capital City claim to have joined in a motion to bifurcate. Capital City's counsel argued this motion before the trial judge on the morning of the trial.³ We cannot find where Wicker Logging allegedly joined in this motion with Capital City. However, it is clear from the record that Capital City argued the motion; and therefore, the issue is properly before this Court. Capital City argues that the trial court should have been bifurcated to first determine whether Wicker Logging had any liability before reaching the issues of coverage and damages.

¶ 10. Capital City relied upon M.R.C.P. 42(b) and M.R.E. 411 for authority. M.R.C.P. 42(b) states:

The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim, or third party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by Section 31 of the Mississippi Constitution of 1890.

The Comment to M.R.C.P. 42(b) states in part:

The provision for separate trials in Rule 42(b) is intended to further convenience, avoid delay and prejudice, and serve the ends of justice. It is the interest of efficient judicial administration that is to be controlling, rather than the wishes of the parties. The piecemeal trial of separate issues in a single suit is not to be the

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