Gamble v. Dollar General Corp.

Decision Date07 August 2003
Docket NumberNo. 2000-CA-01545-SCT.,2000-CA-01545-SCT.
Citation852 So.2d 5
PartiesHeather GAMBLE, a Minor, by and through her Mother and Adult Next Friend, Rebecca GAMBLE v. DOLLAR GENERAL CORPORATION, a Tennessee Corporation, and Sheri Thornton.
CourtMississippi Supreme Court

J. Andrew Phelps, Mark Thomas Finch, Hattiesburg, attorneys for appellant.

William E. Ready, Jr., Meridian, Neil A. Morris, attorneys for appellees.



EASLEY, Justice, for the Court.

¶ 1. The motion for rehearing is granted. The original opinions are withdrawn, and these opinions are substituted therefor. Part I of this opinion addresses the issue of compensatory damages and other issues arising in the compensatory stage of trial by Gamble on direct appeal and Dollar General on cross-appeal. Part II of this opinion addresses the issue of punitive damages by Dollar General on cross-appeal.

¶ 2. On April 6, 1999, Heather Gamble filed a complaint against Dollar General Corporation and Sherry Thornton in the Circuit Court of Lamar County, Mississippi, seeking compensatory and punitive damages for assault, negligence, intentional and/or negligent infliction of mental and emotional distress and anguish, wrongful detention and arrest, and outrage and slander. Gamble alleged that Thornton, an employee of Dollar General, followed her from the Dollar General store to the parking area of a Family Dollar store, where she accused Gamble of shoplifting and grabbed Gamble by her underwear.

¶ 3. On April 25, 2000, Gamble filed an amended complaint, adding a claim for fraud, bad faith and breach of fiduciary duties based on Dollar General's failure to disclose in discovery that Dollar General had relevant insurance coverage in the amount of $102,000,000.00. In particular, Gamble claims that Dollar General represented that it was self-insured and concealed the relevant insurance coverage until after mediation had taken place. The amended claim was severed before trial.

¶ 4. The trial began on May 1, 2000. Jury instructions were refused for false arrest, wrongful detention, defamation/slander, and the tort of outrage. The jury was instructed on assault, negligent supervision/training, negligent and intentional infliction of emotional distress, and punitive damages. The jury returned a verdict against Thornton and Dollar General for actual damages in the amount of $75,000, and, after additional instructions, the jury returned a verdict in favor of Gamble against Dollar General in the amount of $100,000 in punitive damages. On August 14, 2000, in response to Dollar General's motion to dismiss the amended claims, the circuit court, Honorable Michael Eubanks presiding, entered an order dismissing the amended claim. Gamble now asks that this Court reverse the trial court's dismissal of her claims for fraud, bad faith, and breach of fiduciary duties. On cross-appeal, Dollar General, based on several allegations of error, asks that this Court reverse the judgment entered on the jury verdict in favor of Gamble and enter a judgment for Dollar General and Thornton, order a new trial on damages, vacate and reverse the award of punitive damages, and/or order a substantial remittitur of Gamble's damages.


¶ 5. The following facts are relevant as to Gamble's appeal. Gamble filed her complaint on April 6, 1999, demanding actual and punitive damages in excess of $2,500 against Dollar General and Sherry Thornton. On August 25, 1999, Dollar General responded to Gamble's first set of interrogatories. Interrogatory Number 8 asked Dollar General to state whether it was a named insured on any insurance policy that might provide coverage as to the allegations in the complaint; also, the interrogatory requested disclosure of the extent of liability coverage provided by that policy on the date of the incident. Dollar General responded by stating that "[t]his [a]nswering defendant is self-insured." The response was stated under oath by the claims manager, Michelle Hughes. For approximately 4 hours on October 15, 1999, the parties attempted mediation but were unsuccessful. Hughes was present at the mediation. ¶ 6. On November 1, 1999, Dollar General filed its Third Supplemental Response to Interrogatory Number 8, again under the oath of Hughes, stating that Dollar General was self-insured up to the combined single limit deductible of $500,000, with a commercial general liability aggregate of $2,000,000, as well as an overlapping punitive damages wrap-around policy. The $2,000,000 policy was attached. The second supplemental response to Interrogatory 8 is not at issue. On the same day, at a deposition, Michelle Hughes stated that on August 25, 1999, the day she answered Gamble's interrogatories, she was aware of an additional or excess policy. Based on these facts, the circuit court permitted Gamble to amend her complaint to include the fraud claims. On August 14, 2000, the trial court dismissed Gamble's claims for fraud.

¶ 7. The remaining facts are relevant as to Dollar General's cross-appeal. On March 19, 1999, at about noon, Gamble, a nineteen-year-old college student, stopped by the Dollar General store in Purvis, Mississippi, to purchase a shirt to wear to work. She stated that she needed a new shirt because she had soiled her shirt with oil pastels while in art class at Pearl River Community College. Gamble did not find anything at the Dollar General and proceeded to the Family Dollar store to look for a shirt. Upon leaving the Dollar General store, Gamble observed that a Dollar General employee had rushed up behind her car to write something down, as if she were writing down her license tag number.

¶ 8. After Gamble arrived at the Family Dollar store, she noticed that the same individual who wrote down her tag number had followed her to the Family Dollar store and parked directly behind her, blocking her vehicle. At this point, Gamble asked the "angry-looking" individual, Thornton, why she was following her and why she had taken down her tag number. Thornton approached Gamble and asked her what she had in her pants. Gamble thought she may have had an outline from class in her back pocket, so she reached in her back pocket but had nothing. Thornton then grabbed at Gamble's panties from the back of her pants and tugged on them. At this point, it became obvious to Gamble that Thornton was accusing her of shoplifting. The two exchanged a few words, and Thornton left, satisfied that Gamble had not shoplifted.

¶ 9. Gamble went to the police station to report the incident. The police officers told Gamble that they would investigate the incident and speak with Thornton. The officers testified that Gamble was extremely upset and crying because of the incident. Testimony from Gamble's parents and a friend of Gamble's was also presented to the jury. Gamble testified that she felt like she had been assaulted and humiliated by Thornton. She stated that no one from Dollar General had ever apologized to her for the incident. She testified that the incident has upset her emotionally, has affected her grades, has caused her to suffer from insomnia about four nights a week and has caused her embarrassment.


¶ 10. In regards to Gamble's amended claim, "the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim." Butler v. Board of Supervisors, 659 So.2d 578, 581 (Miss. 1995). When considering a motion to dismiss for failure to state a claim, this Court reviews the claim de novo. Sennett v. United States Fid. & Guar. Co., 757 So.2d 206, 209 (Miss.2000).

PART I: Compensatory Damages


¶ 11. This Court has not addressed this issue in any previous cases. Gamble argues that when parties are involved in mediation, the opposing party has a duty to act in good faith in seeking and participating in mediation. The opposing party, according to Gamble, must not use mediation as a tactic to delay trial or to determine the strengths and weaknesses of the opposition.

¶ 12. The elements of fraud are: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) the speakers intent that the representation be acted upon by the hearer and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on the representation's truth; (8) the hearer's right to rely thereon; and, (9) the hearer's consequent and proximate damages. Allen v. Mac Tools, Inc., 671 So.2d 636, 642 (Miss.1996). Gamble argues that Dollar General's concealment of relevant insurance coverage rises to the level of misrepresentation and concealment that would entitle Gamble to a cause of action based on fraud. Gamble alleges that the misrepresentation by Dollar General has caused detriment to Gamble in the form of four hours of wasted time, the loss of an opportunity for a successful mediation, additional stress and an unfair opportunity for Dollar General to measure the strengths and weaknesses of Gamble's case at mediation. Gamble also argues that because Dollar General did not file a response to her amended complaint, by rule, Gamble's amended allegation should have been recognized as admitted.

¶ 13. On the other hand, Dollar General argues that under M.R.C.P. 12(b), Dollar General had the option of either filing an answer to the amended claims or filing a motion to dismiss. Dollar General argues that Gamble's cause of action lacks any reasonable basis in law and is entirely without merit. Dollar General filed a motion for Rule 11 sanctions against Gamble for filing a frivolous cause of action. M.R.C.P. 11. The circuit court denied Dollar General's motion for sanctions. Dollar General instead asks that this...

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