Coleman Powermate, Inc. v. Rheem Mfg. Co.

• Decision Date: 19 August 2004
• Docket Number: No. 2002-IA-02117-SCT.,2002-IA-02117-SCT.
• Citation: 880 So.2d 329
• Court: Mississippi Supreme Court
• Parties: COLEMAN POWERMATE, INC., Briggs & Stratton Corporation and Wal-Mart Stores, Inc. v. RHEEM MANUFACTURING COMPANY as Assignee of the Estate and Wrongful Death Beneficiaries of Sarah Jane King, Deceased.

880 So.2d 329

COLEMAN POWERMATE, INC., Briggs & Stratton Corporation and Wal-Mart Stores, Inc. v. RHEEM MANUFACTURING COMPANY as Assignee of the Estate and Wrongful Death Beneficiaries of Sarah Jane King, Deceased.

No. 2002-IA-02117-SCT.

Supreme Court of Mississippi.

August 19, 2004.

Robert H. Pedersen, James A. Becker, Jr., Jackson, Allen Lamar Burrell, Port Gibson, Roy A. Smith, Jr., Jackson, Kenneth R. Lang, Amy M. Decker, attorneys for appellants.

Gregory K. Davis, Jackson, George E. Cain, Deborah Mcdonald, Natchez, Edward F. Kohnke, attorneys for appellee.

EN BANC.

COBB, Presiding Justice, for the Court.

¶ 1. This case, which is based on an unusual set of facts, raises an issue of first impression for this Court. Specifically, does Mississippi's assignment statute together with Mississippi's wrongful death statute allow a defendant tortfeasor to settle with plaintiffs on a wrongful death claim, then bring an action, as assignee of the plaintiffs' wrongful death claim, against what would have been a joint tortfeasor had the action been brought initially by the plaintiffs against both tortfeasors? Most jurisdictions that have tackled the question of assignability of wrongful death claims have declined to allow the assignment of wrongful death claims, for various reasons. Based on the facts of this case, we do not reach the question today of whether a wrongful death may ever be assigned. However, for such a case as this one, where one tortfeasor attempts to use the Mississippi assignment statute to bring a wrongful death claim as assignee against another tortfeasor, we hold the wrongful death claim is not assignable.

FACTS

¶ 2. In February, 1996, as a result of an ice storm, Mrs. Sarah Jane King's residence was without power. Her son-in-law had purchased a gasoline powered electrical generator at Wal-Mart owned Sam's Club, and brought it to Mrs. King's house. The generator was made by Coleman Powermate and was driven by a Briggs & Stratton engine. The generator was in the utility room of Mrs. King's home and either Mrs. King or one of her family members¹ was filling the generator with gasoline, when gasoline was spilled onto the floor of the utility room. Fumes from the spilled gasoline ignited, and Mrs. King was severely injured. She died eleven days later. There is no agreement as to what source may have ignited the spilled gasoline fumes.

¶ 3. Litigation proceeded in two stages. Initially, in April, 1997, Mrs. King's son and administrator of her estate, Ellis King (King), filed a wrongful death action on behalf of Mrs. King's wrongful death beneficiaries² against Rheem Manufacturing Company, maker of the gas water heater that was also situated in the utility room, alleging that the heater's gas pilot light ignited the gasoline vapors and that the water heater was defective. The water heater had been purchased and installed by Mrs. King's son-in-law. The suit also named as defendants Southern Pipe & Supply Company, the seller of the Rheem water heater, and Syn Inc. and Herring Gas Co, suppliers of natural gas to the King residence. Southern Pipe & Supply, Syn, Inc. and Herring Gas agreed to a settlement totaling $150,000 and were dismissed with prejudice from the suit.

¶ 4. During settlement negotiations, Rheem suggested to King that Coleman Powermate Inc., Briggs & Stratton Corporation, and Wal-Mart Stores, Inc., (collectively "Coleman"), as makers and sellers of the generator, should be joined as additional defendants in the suit because the design of the gas tank may have contributed to the fuel spill. Because King's attorney thought this would weaken the case against Rheem, a decision was made not to join Coleman. However, King's attorney suggested that any additional claims against Coleman might be assigned to Rheem as part of the settlement agreement. In October, 1998, Rheem agreed to settle with King for $7.6 million. As part of the settlement agreement, King and the other wrongful death beneficiaries released Rheem from liability and assigned to Rheem all rights they might have against other parties concerning this incident.

¶ 5. At this point, rather than dismissing the action against Rheem, King, along with Rheem as assignee, filed an amended complaint in January, 1999, against Rheem and Coleman, raising negligence and strict liability claims, and requesting all damages that could have been awarded to the estate of Mrs King and to the wrongful death beneficiaries of Mrs. King, including compensatory and punitive damages. Rheem then answered its own complaint, admitting all the substantive allegations made against it and Coleman. Included in Rheem's answer was a cross-claim for indemnity, contribution and reimbursement against Coleman. ¶ 6. After intervening delays,³ in August, 2002, Coleman moved for and was granted partial summary judgment dismissing King because he had no real interest in the claims in the amended complaint, and realigning Rheem as the plaintiff and real party in interest. In September, 2002, Coleman moved for summary judgment on all claims. The circuit court denied this motion and also denied a motion for reconsideration and a petition for certification for interlocutory appeal. Coleman then filed a petition to this Court for interlocutory appeal, which we granted. See M.R.A.P. 5.

¶ 7. Coleman's primary issue on appeal is whether the wrongful death beneficiaries' assignment of their rights to Rheem authorizes Rheem to prosecute a wrongful death action for Mrs. King's death under Mississippi's wrongful death statute. Coleman also raises issues regarding Rheem's cross claim for indemnity, contribution and reimbursement, but according to Rheem, it no longer brings these claims because of its realignment as plaintiff in this suit. Rheem states that Miss.Code Ann. § 85-5-7 (1999),⁴ confers a right of contribution in tort to a defendant that is jointly liable with other parties, but concedes that because there has been no legal judgment against it, contribution, indemnity, and reimbursement are not available to it under Mississippi law. Therefore, this opinion deals only with the wrongful death claim. We hold that Rheem's cross claims for contribution, indemnity, and reimbursement are to be dismissed with prejudice.

¶ 8. We are persuaded that Mississippi's wrongful death statute is not the appropriate avenue for a claim such as this between parties that are, in reality, both adverse to the original plaintiffs. We hold that the trial court erred as a matter of law when it denied Coleman's motion for summary judgment. A wrongful death claim is not assignable by a wrongful death beneficiary to one tortfeasor to be asserted against another joint tortfeasor.

ANALYSIS

¶ 9. The standard for granting summary judgment is set forth in Miss. R. Civ. P. 56. We review de novo the granting or denying of summary judgment and examine all the evidentiary matters before us—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant is given the benefit of the doubt. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996). If, in this view, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party's favor. The party opposing the motion must be diligent and may not rest upon allegations or denials in the pleadings but must set forth specific facts showing that there are indeed genuine issues for trial. Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997). A motion for summary judgment is not a substitute for trial of disputed fact issues. Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried. Dennis v. Searle, 457 So.2d 941, 944 (Miss.1984).

¶ 10. Coleman claims that the trial court should have granted summary judgment to them on the wrongful death claim because (1) Rheem is not an individual authorized by Mississippi's wrongful death statute to bring an action, thus it is statutorily prevented from bringing the action, (2) Rheem's attempt to take assignment in a wrongful death action is against the prevailing law of other jurisdictions, and (3) although Rheem calls its claim a wrongful death action, it is in reality a suit seeking contribution and/or indemnity, which it cannot do under Mississippi law.

¶ 11. Rheem counters that there is nothing in the laws of Mississippi which would prohibit the assignment of a legal right; that the original plaintiffs have the legal right to settle with some parties and reserve their rights against others; and that Rheem, as assignee of the rights received from the original plaintiffs, now occupies the position of the plaintiffs, pursuing a remedy legally vested in them.

Mississippi's Wrongful Death Statute

¶ 12. Contrary to some jurisdictions, Mississippi law generally allows assignment of personal injury claims through either the assignment statute, Miss.Code Ann. § 11-3-7 or the survival statute, Miss Code Ann. § 91-7-233 (Rev.1994). However, the assignability of personal injury claims does not automatically extend to wrongful death claims, which are governed by the Mississippi wrongful death statute, Miss.Code Ann. § 11-7-13. "Claims for death exist solely by virtue of statute, and most commonly, such statutes vest the cause of action in a specified individual ... while the right to the proceeds is given to separately specified persons..." R.D. Hursh, Annotation, Assignability of Claim for Personal Injury or Death, 40 A.L.R.2d 500, § 9[a], at 514, 1955 WL 10256 (1955). Mississippi's wrongful death statute specifies certain individuals who may bring an action for wrongful death and certain other individuals who may benefit from the proceeds of the claim:

The action for such damages may be brought in the name of the personal

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