Employers Ins. of Wausau v. Mississippi State Highway Com'n

Citation575 So.2d 999
Decision Date19 December 1990
Docket NumberNo. 89-CA-0667,89-CA-0667
PartiesEMPLOYERS INSURANCE OF WAUSAU, a Mutual Company, and Houston General Insurance Company v. MISSISSIPPI STATE HIGHWAY COMMISSION and Does I through XX, Inclusive.
CourtUnited States State Supreme Court of Mississippi

Jackson H. Ables, III, Daniel Coker Horton & Bell, C. Joyce Hall, Daniel Coker Firm, Jackson, for appellant.

John L. Clay, Jackson, for appellee.

Before HAWKINS, P.J., and SULLIVAN and BLASS, JJ.

HAWKINS, Presiding Justice, for the Court:

Employers Insurance of Wausau, a Wisconsin-based insurance corporation (Wausau), and Houston General Insurance Company, a Texas-based insurance corporation (Houston), appeal from a summary judgment dismissal of their complaint against the Mississippi State Highway Commission (Commission) in which as assignees of injured parties they sued the Commission for breach of its implied warranty that Commission's plans and specifications to a contractor for resurfacing would provide a reasonably safe highway. The circuit judge found there was no contractual liability for such injury. We find that the Commission, as an agency of the sovereign state, is immune from such liability and affirm.

FACTS

The Commission on December 8, 1982, contracted with Cook Construction Company (Cook) to resurface a portion of Interstate 55 from Glukstadt to Highway 22 in Madison County. The contract required Cook to apply a pavement mixture designed and manufactured in accordance with plans and specifications provided by the Commission.

Cook followed the plans and specifications of the Commission in manufacturing the pavement mixture, but the mixture was defective, resulting in an unreasonably slick highway. Due to this condition, three different automobiles on three different occasions had accidents causing severe injuries to three individuals.

On June 11, 1985, Cook filed a suit against the Commission in the chancery court of the First Judicial District of Hinds County for defective plans and specifications furnished it by the Commission. This action was later settled.

Kenneth Sebren was injured on July 13, and thereafter Ivory Chambers was injured August 10, and Alvin Russell Clark injured September 16, 1983, all from automobile accidents on the portion of the highway which had been resurfaced. Each of them either filed a suit against Cook, or made demand on Cook for personal injury damages. Cook's liability insurance carriers reached compromise settlements with these individuals and their wives, and were assigned their respective claims against the Commission.

On April 3, 1986, Kenneth R. Sebren and his wife Harriet in consideration of $55,000 to himself, $75,000 to Harriet, and $20,000 to Lumberman's Underwriting Alliance to reimburse that company for worker's compensation benefits, all paid by Wausau and Houston, executed a complete release of Cook and its carriers, and assigned all rights they had against the Commission to Wausau and Houston. On March 26, 1986, Alvin Russell Clark and his wife executed the same type of document for $20,000. Also, on March 27, 1986, Ivory Chambers and his wife Louella for $188,904.37 being paid to him, and $11,095.63 being paid to New Hampshire Insurance Company as reimbursement for worker's compensation benefits, executed the same type of document to Wausau and Houston.

Wausau and Houston filed a complaint against the Commission in the circuit court of the First Judicial District of Hinds County. The complaint charged that Cook was contractually obligated to apply a mixture for resurfacing designed and manufactured in accordance with the plans and specifications provided Cook by the Commission. The complaint further alleged that there was as a matter of law an implied warranty by the Commission that if Cook followed this recipe a reasonably safe, suitable road surface would result. Cook complied, followed the Commission's recipe, which resulted in a hazardous, dangerous surface. The complaint further alleged that Sebren, Clark and Chambers suffered severe personal injuries as a result of this slick, defective highway, and finally that as assignees of these individuals the plaintiffs were entitled to $600,000 damages for injuries to Chambers, $450,000 damages for injuries to Sebren, and $60,000 damages for injuries to Clark.

On December 2, 1987, the Commission filed a motion for summary judgment and dismissal of the action. The motion first alleged that plaintiffs sought damages as indemnees of Cook, but there was no showing that Cook had paid any sum as a result of the negligence of the Commission. Secondly, the motion raised the defense of sovereign immunity.

The plaintiffs responded that their claim was not one for indemnity but on behalf of persons protected under the implied warranty of the Commission to furnish plans and specifications providing for a reasonably safe surface on the highway.

The circuit judge sustained the motion by order dated December 20, 1988, which provided in pertinent part:

The precise issue of sovereign immunity put by this case, where implied warranties expose state agencies to what would otherwise be tort liability, is one of first impression in this state. That issue need not be reached, however, because this court concludes that this action is barred by the terms of the contract on which it is based. Incorporated into this contract is a provision which provides as follows:

107.15--Third Party Beneficiary Clause:

It is not intended by any of the provisions of any part of the contract to create the public or any member thereof a third party beneficiary hereunder, or to authorize anyone not a party to this contract to maintain a suit for personal injuries or property damage pursuant to the terms or provisions of this contract. The duties, obligations and responsibilities of the parties to this contract with respect to third parties shall remain as imposed by law.

This provision is clear and unambiguous and bars this action. Accordingly, it is hereby,

Ordered, that the Motion for Summary Judgment filed on behalf of the defendant Mississippi State Highway Commission be and the same is hereby GRANTED.

LAW

Wausau and Houston have appealed, alleging the contract was ambiguous, citing another section, and contending that summary judgment was improper. We decline to reach the contract provisions, however, because this suit is not based upon any specific contract provisions, but an implied warranty arising from the...

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6 cases
  • Presley v. Mississippi State Highway Com'n
    • United States
    • United States State Supreme Court of Mississippi
    • August 31, 1992
    ...Vardaman, 580 So.2d 733 (Miss.1991); McKay v. Boyd Construction Co., Inc., 571 So.2d 916 (Miss.1990); Employers Ins. of Wausau v. Mississippi State Highway Comm., 575 So.2d 999 (Miss.1990) cert. denied --- U.S. ----, 112 S.Ct. 72, 116 L.Ed.2d 46 (1991); Richardson v. Rankin County School Di......
  • Gulf Coast Research Lab. v. Amaraneni
    • United States
    • United States State Supreme Court of Mississippi
    • October 8, 1998
    ...of the state may not be sued absent a "clear and unambiguous statute waiving sovereign immunity." Employers Ins. of Wausau v. Mississippi State Highway Comm'n, 575 So.2d 999, 1002 (Miss.1990). ¶ 38. In Count IV of the complaint, however, the plaintiffs charged that GCRL unlawfully breached ......
  • Womble By and Through Havard v. Singing River Hosp., s. 90-CA-40
    • United States
    • United States State Supreme Court of Mississippi
    • March 25, 1993
    ...from prosecution against the State and its agencies by the doctrine of sovereign immunity. Employers Insurance of Wausau v. Mississippi State Highway Commission, 575 So.2d 999, 1002 (Miss.1990); and Strait v. Pat Harrison Waterway District, 523 So.2d 36, 40 (Miss.1988). In Strait v. Pat Har......
  • Southland Enterprises, Inc. v. Newton County, 2001-CA-00838-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • February 20, 2003
    ...nom. Clark-Dietz & Assocs-Engineers, Inc. v. Basic Constr. Co., 702 F.2d 67 (5th Cir.1983). See also Employers Ins. of Wausau v. Miss. State Highway Comm'n, 575 So.2d 999, 1002 (Miss.1990). ¶ 12. Southland contends that the substantial evidence at trial showed that the road work problems oc......
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