Darville v. Mejia

• Decision Date: 05 January 2016
• Docket Number: No. 2014–CA–00832–COA.,2014–CA–00832–COA.
• Citation: 184 So.3d 312
• Parties: Ashley DARVILLE, Individually, and On Behalf of The Estate of Carol Darville, Appellant v. Hector MEJIA, Appellee.
• Court: Mississippi Court of Appeals

184 So.3d 312

Ashley DARVILLE, Individually, and On Behalf of The Estate of Carol Darville, Appellant

v.Hector MEJIA, Appellee.

No. 2014–CA–00832–COA.

Court of Appeals of Mississippi.

Jan. 5, 2016.

Daniel Ellis Morris, Cleveland, Lindsey J. Scott, attorneys for appellant.

Walker Reece Gibson, Bradley Smith Kelly, Ridgeland, attorneys for appellee.

Before IRVING, P.J., BARNES and JAMES, JJ.

BARNES, J., for the Court:

¶ 1. On August 8, 2009, while traveling northbound on Interstate 55 in Holmes County, Mississippi, Hector Mejia's vehicle swerved into the left lane, and then overcorrected, swerving back into the right lane, and colliding with the vehicle driven by Ashley Darville. Her mother, Carol Darville, owned the vehicle and was a passenger in the car. Both women sustained multiple injuries.¹

¶ 2. On April 26, 2012, Darville filed a complaint for negligence against Mejia with the Holmes County Circuit Court. After four attempts to serve notice on Mejia were unsuccessful, Darville moved for an extension of time for service of process on September 14, 2012. See M.R.C.P. 4(h). While nothing in the record indicates the circuit court granted the motion, the circuit court did grant a second motion for an extension on January 2, 2013, allowing Darville an additional 120 days to serve the defendant. The second motion stated a belief that Mejia was evading service of process and noted efforts by Darville to subpoena Mejia's license number and driving records from Tennessee and Mississippi to determine his whereabouts. An investigation revealed that Mejia had approximately eighteen residences, the majority of which were in Tennessee, between 2008 and 2013.

¶ 3. However, even after these inquiries, Darville was unable to locate and serve process on Mejia. A third motion for an extension of time was filed on July 2, 2013. The record reflects that the circuit court entered an order denying the third motion on June 27, 2013. A fourth motion for an extension was filed on December 11, 2013, explaining the multiple efforts to serve Mejia, who was believed to be "an illegal alien and/or a drifter." On February 10, 2014, Darville attempted service of process on Mejia through his insurance company, United Automobile Insurance Company (UAIC).

¶ 4. Eventually, since Mejia was considered a nonresident motorist, Darville submitted service of process to the Mississippi Secretary of State's Office on February 25, 2014, pursuant to Mississippi Code Annotated section 13–3–63 (Rev.2012). Service of process on an out-of-state defendant under section 13–3–63 may be effected by serving Mississippi's Secretary of State, who must forward the summons/process to the defendant at his last known address via certified or registered mail. A defendant's return receipt or evidence of the defendant's refusal to accept delivery must be filed with the court in which the action is pending. Miss.Code Ann. § 13–3–63. The Secretary of State attempted to forward the summons to Mejia, but it was returned unclaimed.

¶ 5. On March 7, 2014, a motion to dismiss with prejudice was filed by attorney Bradley Kelly with Copeland, Cook, Taylor & Bush (Copeland), purportedly on Mejia's behalf, although it was acknowledged that Copeland represented UAIC, Mejia's insurer. The motion alleged Mejia was improperly served through UAIC, who was not his registered agent. It alternatively claimed that even if service of process was proper, the statute of limitations had expired prior to perfection of service.

¶ 6. A hearing on the motion to dismiss was held on April 28, 2014. Kelly asserted that he represented Mejia in the lawsuit and argued that service of process was insufficient and that Darville's claim was barred by the applicable statute of limitations. Darville admitted service of process on UAIC as Mejia's agent was not proper, but argued "the only attorney that [Mejia] has is the Secretary of State" and "[c]ounsel ha[d] no standing" to file the motion on Mejia's behalf.

¶ 7. On May 15, 2014, the circuit court granted the motion and dismissed Darville's complaint with prejudice, concluding that "the statute of limitations ran before service of process was perfected either by service upon Mejia's insurance company, which [the court found] to be unprecedented and unsupported by law, or upon the Secretary of State." The order did not address the standing issue asserted by Darville.

¶ 8. On appeal, we conclude that Darville exhibited good cause for not timely serving process on Mejia, and there was insufficient information to determine that the applicable statute of limitations had run. We reverse the circuit court's dismissal with prejudice on this ground and remand for further proceedings in accordance with this opinion.

STANDARD OF REVIEW

¶ 9. A circuit court's grant or denial of a motion to dismiss is reviewed de novo. Shaver v. Blackwell, 43 So.3d 1155, 1157 (¶ 6) (Miss.Ct.App.2010) (citing City of Jackson v. Perry, 764 So.2d 373, 375 (¶ 9) (Miss.2000) ).

DISCUSSION

I. Whether counsel had standing to bring the motion to dismiss on Mejia's behalf.

¶ 10. Darville contends the circuit court erred in granting the motion to dismiss, "as the motion was not brought by Appellee, but by his insurance company, UAIC, who lacked standing to bring the motion." The Appellee responds that the motion "was clearly brought by counsel on behalf of Hector Mejia, not [UAIC]." At the hearing on the motion to dismiss, Kelly stated that he was there "on behalf of the Defendant," making a "special appearance."² He noted that another member of his law firm was the registered agent for UAIC. However, Darville's counsel argued:

And we really shouldn't be arguing this motion anyway, because [c]ounsel has no standing and the motion itself[ ] is moot, because he has no standing, because he has no relationship with Mr. Mejia, he hasn't been hired by Mr. Mejia, he hasn't been contracted by Mr. Mejia. The only person counsel represents is the insurance company.

¶ 11. We find Darville's claim is not wholly supported by the circumstances. Kelly, who was evidently appointed by UAIC to assist in the litigation brought against Mejia, claimed he represented Mejia, not UAIC. There is no dispute that UAIC was not a party to the proceeding or an agent for the defendant. Although the insurance contract is not contained in the record, Kelly asserted at the hearing that Mejia was "afforded representation under his insurance policy." "In Mississippi, an insurance company's duty to defend its insureds derives ... from the provisions of its policy, that is, its insurance contract with its insured. It is a matter of contractual agreement." Baker Donelson Bearman & Caldwell P.C. v. Muirhead, 920 So.2d 440, 450 (¶ 40) (Miss.2006) ; see also Minn. Life Ins. Co. v. Columbia Cas. Co., 164 So.3d 954, 970 (¶ 57) (Miss.2014) ("Under Mississippi law, the determination of whether an insurance company has a duty to defend depends upon the language of the policy as compared to the allegations of the complaint in the underlying action.").

¶ 12. Furthermore, "[a]n insurance company's duty to defend its insured is triggered when it becomes aware that a complaint has been filed which contains reasonable, plausible allegations of conduct covered by the policy." Baker Donelson, 920 So.2d at 451 (¶ 41). Darville acknowledged UAIC's duty to defend by attempting to serve Mejia through the insurance company. After UAIC was notified of the complaint through Darville's attempt to serve process, it filed a motion to dismiss on Mejia's behalf, presumably under its duty to defend. Thus, we cannot conclusively state that counsel had no standing to file a motion on Mejia's behalf.

II. Whether the circuit court's denial of Darville's third motion for an extension for service of process was an abuse of discretion.

¶ 13. Darville claims her third motion to extend time for service of process should have been granted by the circuit court, as there was "good cause" shown for not being able to serve Mejia. Mississippi Rule of Civil Procedure Rule 4(h) states:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.³

Once a party has been granted an initial extension of time under Rule 4(h) in which to serve process, "a second or subsequent extension of time to effectuate service of process may be granted by the trial court only upon a showing of ‘good cause.’ In other words, once the initial, 120–day period after filing the complaint has elapsed, good cause is required to avoid dismissal." Johnson v. Thomas ex rel. Polatsidis, 982 So.2d 405, 413 (¶ 24) (Miss.2008). This Court has noted:

To establish good cause, the plaintiff must demonstrate that she made diligent efforts to effect service upon the defendant. Foss v. Williams, 993 So.2d 378, 379 (¶ 6) (Miss.2008). Examples of good cause include: "when the failure is a result of the conduct of a third person; when the defendant has evaded service of process or engaged in misleading conduct; when the plaintiff has acted diligently; when there are understandable mitigating circumstances; or when the plaintiff is proceeding pro se or in forma pauperis." Id.

Shaver, 43 So.3d at 1157–58 (¶ 8) (emphasis added). Determining whether good cause exists is "a discretionary ruling on the part of the trial court and entitled to deferential review of whether the trial court abused its discretion and whether there was substantial evidence supporting the determination." Rains v. Gardner, 731 So.2d 1192, 1197 (¶ 18) (Miss.1999).

¶ 14. According to the record, Mejia had multiple listed addresses. The steps utilized to serve process on Mejia are as follows:

• A summons was issued to a listed Memphis address on

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