Durr v. AMERICAN NAT. PROPERTY & CAS. CO.

• Decision Date: 15 June 2000
• Docket Number: No. 1999-CA-00482-SCT.,1999-CA-00482-SCT.
• Citation: 796 So.2d 215
• Parties: Derry DURR and Maggie Durr v. AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY.
• Court: Mississippi Supreme Court

796 So.2d 215

Derry DURR and Maggie Durr v. AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY.

No. 1999-CA-00482-SCT.

Supreme Court of Mississippi.

June 15, 2000.

John Hubert Anderson, Hattiesburg, for Appellants.

David M. Ott, Katherine L. Howie, Hattiesburg, for Appellee.

EN BANC.

SMITH, Justice, for the Court:

¶ 1. Derry Durr and Maggie Durr appeal to this Court from a summary judgment entered by the Circuit Court of Lawrence County against them in favor of American National Property and Casualty Company.

¶ 2. On September 22, 1995, American National Property and Casualty Company filed its complaint against Derry Durr and Maggie Durr and Jacqueline Peyton for money damages it sustained as a result of the Durrs' and Peyton's intentional act of arson which caused damage to property insured by American National. The complaint sought judgment against all three defendants, jointly and severally, for all amounts required to be paid to the Farmers' Home Administration and all other costs of the investigation and adjustments of the claim, plus costs, pre-judgment and post-judgment interest and attorneys' fees. Derry Durr and Maggie Durr responded with the defenses that the complaint was barred by the applicable statute of limitation, that the action failed to state a claim upon which relief could be granted and that American National Property & Casualty Insurance Company was estopped from proceeding against Derry Durr because he was in compliance with a judgment from the circuit court delineating his responsibility in this matter. American National Property and Casualty Company filed a Motion for Summary Judgment and itemized material facts which were not disputed by the Durrs. The trial court granted summary judgment.

¶ 3. The only issue is whether the state three-year statute of limitations applies or whether the federal statute of limitations of six years is applicable. We hold that the federal statute applies here.

¶ 4. We find no genuine issues of fact are in dispute; thus the summary judgment is appropriate.

STATEMENT OF THE FACTS

¶ 5. American National Property and Casualty Company ("American National") issued a homeowners policy of insurance to Jacqueline Peyton ("Peyton") on January 21, 1991, providing $65,000.00 in dwelling coverage on her residence located at Route 1 Box 52, Monticello, Mississippi. On March 23, 1991, the residence of Peyton was destroyed by an incendiary fire. Peyton did not file a proof of loss with American National as a result of the fire as required by the terms of the policy. However, immediately after the fire and pursuant to the terms of the policy, American National made an advance payment of $1,000.00 to Peyton. In addition, American National paid $150.00 to the Monticello Fire Department.

¶ 6. On February 7, 1992, Peyton, Derry Durr and Maggie Durr ("Durrs") each pled guilty to arson of insured property in the Circuit Court of Lawrence County, Mississippi, for the fire at Peyton's residence. The circuit court ordered payment of restitution. The Farmers Home Administration ("FmHA") was the beneficiary of the restitution payments up to March 1994 at which time the restitution payments were assigned to American National. Maggie Durr was ordered to pay $1,500.00 to FmHA and all costs of court at the rate of $25.00 per month. Peyton was ordered to pay $180.00 to the witness, $3,000.00 to the FmHA and all costs of court at the rate of $50.00 per month beginning March 2, 1992. Derry Durr was ordered to pay $25,000 to the FmHA and all costs of court with costs to be paid within one year of the date of the order.

¶ 7. FmHA was identified on the declarations page of the policy as a mortgagee on the dwelling, and FmHA filed a proof of loss with American National on October 9, 1992. Under the terms of the policy¹ and Miss.Code Ann. § 83-13-9 (1999), American National was required to pay and did pay FmHA $28,931.16 for the amounts owed by Peyton under the note and deed of trust. This payment was less payments of restitution made by Peyton, Derry Durr and Maggie Durr pursuant to the Order of Restitution of the circuit court. FmHA assigned the deed of trust and note to American National pursuant to Miss.Code Ann. § 83-13-9 (1999). As security for the restitution payments, Derry Durr executed a Deed of Trust in the amount of $21,296.86 in favor of FmHA, and the deed of trust was then assigned to American National.

¶ 8. On September 22, 1995, American National filed suit in the Circuit Court of Lawrence County, Mississippi, against Peyton, Derry Durr and Maggie Durr. Derry Durr and Maggie Durr answered with the defense that the action was barred by the statutes of limitation. American National filed an amended motion for summary judgment. The trial court noted nothing in the appellants' response to the motion for summary judgment disputed any of the foregoing facts.

¶ 9. A judgment was entered jointly and severally against Derry Durr, Maggie Durr and Jacqueline Peyton in the amount of $17,731.80. This amount is the amount of the payment to FmHA plus the amount of the payment to the Monticello Fire Department less the restitution payments of Derry Durr and Maggie Durr since March of 1994. A judgment was also entered separately against Peyton in the amount of $880.00 in addition to the joint and several judgment, representing the $1,000.00 less the $120.00 paid to American National by restitution. Aggrieved by the circuit court's judgment, the Durrs appeal to this Court and assign the following issue as error:

STATEMENT OF THE ISSUES

I. WHETHER THE LOWER COURT ERRED IN GRANTING AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY'S MOTION FOR SUMMARY JUDGMENT.

STANDARD OF REVIEW

¶ 10. Rule 56(c) of the Mississippi Rules of Civil Procedure allows summary judgment where there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law. To prevent summary judgment, the nonmoving party must establish a genuine issue of material fact by means allowable under the rule. Hare v. State, 733 So.2d 277, 279 (Miss.1999)(citing Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997); Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991)).

¶ 11. This Court employs a de novo standard in reviewing a lower court's grant of summary judgment. Id. Evidentiary maters are viewed in a light most favorable to the nonmoving party. Id. If any triable issues of material fact exist, the lower court's decision to grant summary judgment will be reversed. Id. Otherwise, the summary judgment is affirmed.

DISCUSSION OF LAW

I. WHETHER THE LOWER COURT ERRED IN GRANTING AMERICAN NATIONAL AND CASUALTY COMPANY'S MOTION FOR SUMMARY JUDGMENT.

¶ 12. The Durrs contend that this action, which was filed on September 22, 1995, is time barred because Mississippi prescribes a three-year limitation period. Miss.Code Ann. § 15-1-49(1)(1995) provides, in pertinent part, as follows: "(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after."

¶ 13. In support of its motion, American National counters that the applicable statute is federal so that the limitation period is six years. Thus, the action was timely brought pursuant to the six-year statute of limitations codified at 28 U.S.C. § 2415(a) (Supp.1985). The parties also disagree about the date on which the cause of action accrued,² but our disposition of the choice of law question makes unnecessary determination of the exact date. The pertinent provision of 28 U.S.C. § 2415(a) (Supp. 1985), entitled "Time for Commencing Actions Brought by the United States," provides that "every action for money damages brought by the United States ... which is founded upon any contact express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues...." 28 U.S.C. § 2415(a) (Supp. 1985).

¶ 14. Further, though recognizing that state law may be utilized where federal law controls an issue but does not address that issue, the courts have concluded, almost without exception, that state law will not be resorted to in order to provide the rule of decision on this limitations issue. United States v. Muirhead, Civ. A. No. J91-0585(L)(C), 1993 WL 763504 (S.D.Miss.1993), aff'd sub nom: Farmers Home Admin. v. Muirhead, 42 F.3d 964 (5th Cir.1995).

The general rule is that the rights of the United States under ... federal ... program[s] are governed by federal law. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 726[, 99 S.Ct. 1448, 59 L.Ed.2d 711] (1979). Where federal statutes or laws do not delineate these rights, the federal courts must "fill the interstices of federal legislation `according' to their own standards.'" (quoting Clearfield Trust Co. v. United States, 318 U.S. 363, 367[, 63 S.Ct. 573, 87 L.Ed. 838] (1943).)

1993 WL 763504 at 3.

¶ 15. Congress used embracive language in § 2415, because it intended to establish a single limitation period for all contract actions brought by the United States. United States v. McReynolds, 809 F.2d 1047,1049 (5th Cir.1986). In this case, there is no vacuum to fill because the ancient rule that the United States is not subject to a limitations period clearly addresses the issue presented. Accordingly, the action sub judice is controlled by the federal six-year limitations period and not Mississippi's three-year proscriptive period.

¶ 16. This result is consistent with the long-settled rule that the United States is not subject to local statutes of limitations in enforcing its rights unless it has consented to the application of those statutes. United States v. McReynolds, 628 F.Supp. 76, 78 (N.D.Miss.1986). See United States v. John Hancock Mut. Ins. Co., 364 U.S. 301, 308, 81 S.Ct. 1, 5, 5 L.Ed.2d 1 (1960); United States v. Kellum, 523 F.2d 1284, 1286 (5th Cir.1975). Congressional intent to waive governmental...