Chevis v. Mississippi Farm Bureau Mut. Ins. Co.

• Decision Date: 13 December 2011
• Docket Number: No. 2010–CA–00861–COA.,2010–CA–00861–COA.
• Citation: 76 So.3d 187
• Parties: Dr. Bertin C. CHEVIS, Appellant v. MISSISSIPPI FARM BUREAU MUTUAL INSURANCE COMPANY, Appellee.
• Court: Mississippi Court of Appeals

76 So.3d 187

Dr. Bertin C. CHEVIS, Appellant
v.
MISSISSIPPI FARM BUREAU MUTUAL INSURANCE COMPANY, Appellee.

No. 2010–CA–00861–COA.

Court of Appeals of Mississippi.

Dec. 13, 2011.

[76 So.3d 188]

John F. Ketcherside, attorney for appellant.

John A. Banahan, Ryan Anthony Frederic, attorneys for appellee.

EN BANC.

MAXWELL, J., for the Court:

¶ 1. This case involves a dispute between Dr. Bertin C. Chevis and his insurance companies. Chevis purchased two separate

[76 So.3d 189]

policies to cover his office building: (1) a named-perils policy from Mississippi Farm Bureau (Farm Bureau) that excluded windstorm damage and (2) a windstorm and hail damage policy from Mississippi Windstorm Underwriting Association (MWUA). Believing he was under-compensated for his building's total loss caused by wind damage from Hurricane Katrina, Chevis sued Farm Bureau and MWUA, along with the agents who sold him the two policies and the companies that adjusted his loss.

¶ 2. The circuit court granted Farm Bureau's motion for summary judgment, finding its policy did not cover Chevis's wind damage. The circuit court then granted Farm Bureau's motion to certify the judgment as final against Farm Bureau under Mississippi Rule of Civil Procedure 54(b). We find the circuit court's dismissal of Farm Bureau under Rule 54(b) made the grant of summary judgment final and appealable. Upon de novo review, we affirm the circuit court's grant of summary judgment because Farm Bureau's policy clearly did not cover Chevis's wind damage.

FACTS AND PROCEDURAL HISTORY

¶ 3. In February 2005, Chevis purchased a “Business Package of Insurance” from Farm Bureau Insurance agents Keath Ladner and Theodore Bilbo. Chevis purchased two separate policies to cover his medical office building: (1) a named-perils policy from Farm Bureau that excluded flood damage and contained an endorsement excluding windstorm and hail damage and (2) a windstorm and hail damage policy from MWUA. Attached to the Farm Bureau endorsement was a notice that the Farm Bureau policy Chevis was purchasing excluded windstorm and hail damage and that MWUA “provides windstorm and hail policies to match with property policies where windstorm and hail perils have been excluded.” Chevis wrote two separate premium checks—one to Farm Bureau for “Hazard Ins.” and one to MWUA for “Wind & Hail Ins.”

¶ 4. On August 29, 2005, Hurricane Katrina's violent winds damaged Chevis's building and its contents. Audubon Insurance Group, a subsidy of AIG Claim Services, Inc., adjusted Chevis's claim of loss. MWUA compensated Chevis for damage to his building and contents but paid less than full policy limits.

¶ 5. Believing the extent of his damages entitled him to full policy limits, Chevis sued Farm Bureau, MWUA, Audubon, AIG Claim Services, and agents Ladner and Bilbo. He alleged both (1) breach of contract and (2) negligent adjustment by AIG Claim Service.

¶ 6. Farm Bureau filed a motion for summary judgment, arguing Chevis's damages were caused by wind, which is clearly excluded under Farm Bureau's policy. The circuit court granted Farm Bureau's motion, finding “the Farm Bureau policy clearly and unambiguously excluded damage caused by wind.” Because Chevis's claims against MWUA, Audubon, and AIG Claim Services were still pending, ¹ Farm Bureau moved to amend the circuit court's judgment and reissue a final judgment under Mississippi Rule of Civil Procedure 54(b). By agreed order, the circuit court granted this motion and entered a final judgment dismissing Chevis's action against Farm Bureau “pursuant to Rule 54(b).”

[76 So.3d 190]

STANDARD OF REVIEW

¶ 7. We employ the familiar de novo standard of review to the circuit court's grant of summary judgment, viewing the facts in the light most favorable to the nonmovant. Fulkerson v. Odom, 53 So.3d 849, 851(7) (Miss.Ct.App.2011) (citing Robinson v. Singing River Hosp. Sys., 732 So.2d 204, 207 (¶ 12) (Miss.1999)). “Summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting M.R.C.P. 56(c)). Summary judgment must be granted when the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to his case and on which he bears the burden of proof at trial.” Borne v. Dunlop Tire Corp., 12 So.3d 565, 570 (¶ 16) (Miss.Ct.App.2009) (citing Grisham v. John Q. Long V.F.W. Post, No. 4057, Inc., 519 So.2d 413, 416 (Miss.1988)).

DISCUSSION I. Finality of the Judgment Under Rule 54(b)

¶ 8. Before delving into why we find the circuit court correctly granted summary judgment in favor of Farm Bureau, we address the dissent's concern that Farm Bureau did not receive a final judgment.²

¶ 9. The circuit court's grant of summary judgment only affected Farm Bureau and was not directed at the other remaining defendants—MWUA, Audubon, and AIG Claim Services. Under Rule 54(b), a judgment affecting less than all the defendants in a multi-defendant lawsuit is not final except “upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment.” M.R.C.P. 54(b). Here, the dissent would take a purely mechanical approach to find the circuit court did not expressly determine there was no just reason for delay. But taking a common-sense, substance-over-form approach, we find the circuit court, by granting Farm Bureau's Rule 54(b) motion and entering an agreed order finally dismissing Farm Bureau “pursuant to Rule 54(b),” entered a final judgment in a “definite, unmistakable manner.” M.R.C.P. 54(b) cmt.

¶ 10. In Cox v. Howard, Weil, Labouisse, Friedrichs, Inc., 512 So.2d 897, 900–01 (Miss.1987), the Mississippi Supreme Court—guided by the interpretation by the United States Court of Appeals for the Fifth Circuit of the federal version of Rule 54(b)—rejected a Rule 54(b) certification that satisfied the “purely mechanical test of Rule 54(b) ... by a statement in the judgment that there is no just reason for delay and the expressed direction that final judgment be entered[.]” While the supreme court declared it best practice for the trial court to explain its reason for certification, it did not make an explicit statement necessary, so long as the reason for finalizing the partial summary judgment was clear from the record. Id. at 901.

¶ 11. In Cox, the supreme court could not readily discern from the record why the circuit court finalized the dismissal of one claim against a defendant when the plaintiff still had other pending claims against the same defendant with intertwining

[76 So.3d 191]

facts. Id. at 900. Thus, it vacated the appeal. Id. at 901. See also Reeves Constr. & Supply v. Corrigan, 24 So.3d 1077, 1083–84 (¶¶ 14–19) (Miss.Ct.App.2010) (finding it “unclear how the circuit court's final judgment serves the interests of efficient judicial administration ... [and] unclear why there is no just reason for delay in approving the final judgment” when other factually related claims were still pending against the same defendant); Myatt v. Peco Foods of Miss., Inc., 22 So.3d 334, 338–40 (¶¶ 9–12) (Miss.Ct.App.2009) (rejecting Rule 54(b) certification despite use of rule's language because addressing the merits of appeal “would result in piecemeal litigation”); Walters v. Walters, 956 So.2d 1050, 1053–54 (¶¶ 9–12) (Miss.Ct.App.2007) (rejecting appeal of divorce judgment because unsettled property issues remained and because there was no determination by the chancellor why no just reason to delay appeal until divorce became final). Citing Cox, this court in Walters noted: “If there is nothing about a case that merits a Rule 54(b) judgment, this Court will dismiss the appeal despite a trial court's mechanical use of the ‘no just reason for delay’ language.” Walters, 956 So.2d at 1054(13).

¶ 12. Here, we are faced with the other side of the coin. If our appellate courts do not rely on the mechanical satisfaction of Rule 54(b)'s requirements when there is no apparent reason to grant a final partial summary judgment, the converse must also be true—that we do not require the mechanical satisfaction of Rule 54(b) when the reason for granting the final partial summary judgment is unmistakably evident from the record.

¶ 13. This is the exact approach taken by the Fifth Circuit, which our supreme court has looked to when interpreting Rule 54(b). E.g., Cox, 512 So.2d at 900–01. In Kelly v. Lee's Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1219–21 (5th Cir.1990), the Fifth Circuit applied a “practical, common sense interpretation of Rule 54(b)” to determine that a district court had entered a final partial judgment under Federal Rule 54(b), even though its order failed to state explicitly “no just reason for delay” existed for its entry. Id. After granting partial summary judgment to the defendant, the district court asked the defendant to draft a “54(b) judgment.” Id. at 1219. The judgment was captioned “F.R.C.P. 54(b) JUDGMENT” and directed “that there be final judgment entered pursuant to Federal Rule of Civil Procedure 54(b).” Id. The Fifth Circuit found the order satisfied Rule 54(b)'s requirements and conferred appellate jurisdiction. “When the court recites Rule 54(b) in the order or grants a motion requesting entry of judgment under Rule 54(b), the court expressly incorporates the entire rule by reference and signals its conclusion that the requirements of the rule have been met and entry of partial final judgment is proper.” Id. at 1220. See also id. (discussing Crowley Maritime Corp. v. Panama Canal Comm'n, 849 F.2d 951, 953 (5th Cir.1988), which rejected a “form-over-substance” approach and found sufficient 54(b) certification despite the district court's failure to “expressly include the magical language”); EEOC v. Delta Air Lines, 578 F.2d 115, 116...