Hinton v. Sportsman's Guide, Inc.

• Decision Date: 14 November 2019
• Docket Number: NO. 2018-CA-00043-SCT,2018-CA-00043-SCT
• Parties: Marsha R. HINTON and Thomas F. Hinton v. SPORTSMAN'S GUIDE, INC.
• Court: Mississippi Supreme Court

285 So.3d 142

Marsha R. HINTON and Thomas F. Hinton

v.SPORTSMAN'S GUIDE, INC.

NO. 2018-CA-00043-SCT

Supreme Court of Mississippi.

November 14, 2019

ATTORNEYS FOR APPELLANTS: LAWRENCE E. ABERNATHY, III SAMUEL STEVEN McHARD LESLIE D. ROUSSELL

ATTORNEYS FOR APPELLEE: MATTHEW D. MILLER NICHOLAS KANE THOMPSON

BEFORE KING, P.J., MAXWELL AND GRIFFIS, JJ.

MAXWELL, JUSTICE, FOR THE COURT:

¶1. The underlying facts are tragic. In 2012, Timothy Hinton was deer hunting when he fell from his tree stand. He was using a fall-arrest system (FAS)—a harness that he wore that was tethered to a strap tied to a tree. But the tree strap snapped. And Timothy plunged eighteen feet, eventually dying from his injuries.

¶2. In 2013, Timothy's parents, Marsha and Thomas Hinton, filed a wrongful-death suit based on Mississippi products-liability law. The defendant manufacturer, C&S Global Imports, Inc., defaulted and is apparently not a source of recovery. So the litigation turned its focus on the manufacturer's insurer, Pekin Insurance Company. After this Court ruled Mississippi had personal jurisdiction over the Illinois-based insurer,¹ Pekin successfully moved for summary judgment based on the clear tree-stand exclusion in C&S Global's policy.²

¶3. Retailer Sportsman's Guide, which sold Timothy the tree stand and FAS in 2009, also moved for and was granted summary judgment, giving rise to this appeal.³ The trial court based its judgment on the innocent-seller provision in the Mississippi Products Liability Act (MPLA). Miss. Code Ann. § 11-1-63(h) (Rev. 2019). The provision states, "[i]t is the intent of this section to immunize innocent sellers who are not actively negligent, but instead are mere conduits of a product." Id. And the trial court found no evidence of active negligence by Sportsman's Guide. Instead, the seller was a mere conduit of the tree stand and FAS.

¶4. The Hintons now challenge this ruling. First, they argue innocent-seller immunity is an affirmative defense that Sportsman's Guide waived. But even absent waiver, they argue a material fact dispute exists over whether Sportsman's Guide is an innocent seller. Alternatively, they argue Mississippi's innocent-seller provision should not control. And instead the trial court should have followed Minnesota's approach—the state where Sportsman's Guide is located. Under Minnesota's law, innocent sellers may be liable when manufacturers are judgment proof, like C&S Global is here.

¶5. After review, we affirm the trial court's judgment. First, while the Hintons are correct—the innocent-seller provision appears to be a statutory-immunity provision and thus an affirmative defense—Sportsman's Guide did not waive its right to pursue this defense. Second, there is no record evidence that Sportsman's Guide, based on one of the three statutory exceptions, was not an innocent seller entitled to immunity. Though the Hintons strenuously argue Sportsman's Guide was not an innocent seller because C&S Global was not a "reputable manufacturer," Mississippi's statute does not contain a reputable-manufacturer requirement. Finally, the Hintons' choice-of-law argument lacks merit. In their amended complaints, the Hintons sought to hold Sportsman's Guide liable under Mississippi law. So they cannot now ask the court to change course and ignore controlling Mississippi law—namely, the innocent-seller provision—because Minnesota law is more favorable to them.

¶6. For better or for worse, Mississippi law is very clear that "innocent sellers who are not actively negligent" cannot be liable "in any action for damages caused by a product." Miss. Code Ann. § 11-1-63(h). That is the law the Legislature enacted. And it is the law that the trial court and this Court must apply. Because our review shows the trial court did not err in holding this provision entitled Sportsman's Guide to summary judgment, we affirm.

Discussion⁴

I. Application of the Innocent-Seller Provision

¶7. Central to this appeal is the trial court's application of the MPLA's innocent-seller provision to hold Sportsman's Guide cannot be liable for selling the allegedly defective FAS. See Miss. Code Ann. § 11-1-63(h).

¶8. Adopted in 1993, the MPLA governs "any action for damages caused by a product."⁵ Miss. Code Ann. § 11-1-63 (Rev. 2019). Section 11-1-63(a) outlines what a claimant must prove to hold a manufacturer, designer, or seller of a product liable.⁶ And subsection (g) entitles a seller or designer to indemnity from the manufacturer of the defective product unless one of three exceptions applied. Miss. Code Ann. § 11-1-63(g)(i) (Rev. 2019).⁷

¶9. In 2004, the Legislature amended the MPLA, adding what is now codified as subsection (h). The language of subsection (h) is very similar to subsection (g) and includes the exact same three exceptions. But instead of providing indemnity to sellers and designers, subsection (h) provides immunity , unless one of the three exceptions applies. So now under the MPLA

the seller of a product other than the manufacturer shall not be liable unless

[ (1) ] the seller exercised substantial control over that aspect of the design, testing, manufacture, packaging or labeling of the product that caused the harm for which recovery of damages is sought; or

[ (2) ] the seller altered or modified the product, and the alteration or modification was a substantial factor in causing the harm for which recovery of damages is sought; or

[ (3) ] the seller had actual or constructive knowledge of the defective condition of the product at the time he supplied the product.

Miss. Code Ann. § 11-1-63(h) (emphasis added). In adding this provision, the Legislature made its intention clear. It expressly stated in the provision that "[i]t is the intent of this section to immunize innocent sellers who are not actively negligent, but instead are mere conduits of a product." Id. ; see also Land v. Agco Corp. , No. 1:08CV012, 2008 WL 4056224, at *3 (N.D. Miss. 2008) (referring to Section 11-1-63(h) as "innocent seller immunity").

¶10. While many other states have innocent-seller provisions, Mississippi's is one of the few that protects sellers even when the product's manufacturer cannot be served with process, is insolvent, or is otherwise judgment-proof.⁸

A. Substantive Provision versus Affirmative Defense

¶11. While the innocent-seller provision was adopted fifteen years ago, its application in this case raises an issue of first impression for this Court. Is the innocent-seller provision an affirmative defense, as the Hintons argue on appeal? Or is the innocent-seller provision a substantive provision of the MPLA, as the trial court ruled?⁹ Because this issue involves statutory interpretation, it is a question of law, reviewed de novo. Wallace v. Town of Raleigh , 815 So. 2d 1203, 1206 (Miss. 2002). Unlike the trial court, we hold that the innocent-seller provision is an affirmative defense. We base our decision on what the provision is missing and, more important, what the provision includes.

¶12. In contrast to other substantive parts of the MPLA, the innocent-seller provision has no language that explicitly places a burden on the plaintiff to "prove by a preponderance of the evidence." Compare Miss. Code Ann. § 11-1-63(h) with § 11-1-63(a), (c), and (f) (Rev. 2019). The "notabl[e]" absence of this language has led one Mississippi federal court to conclude the innocent-seller provision is not a substantive requirement of the MPLA but instead an affirmative defense. Thomas v. FireRock Prods., LLC , 40 F. Supp. 3d 783, 792 (N.D. Miss. 2014).¹⁰

¶13. But more telling than the absent language is the language that is present—namely the statement of intent. By adopting Section 11-1-63(h), the Legislature expressly intended "to immunize innocent sellers who are not actively negligent, but instead are mere conduits of a product." So Section 11-1-63(h) apparently is a grant of statutory immunity.¹¹ And, as this Court has recognized in other contexts, statutory immunity is an affirmative defense. E.g. , Miss. Dep't of Human Servs. v. D.C. , No. 2018-IA-00592-SCT, ––– So.3d ––––, ––––, 2019 WL 3820779, at *6 (Miss. Aug. 15, 2019) (Mississippi Tort Claims Act immunity); Thomas v. Chevron U.S.A., Inc. , 212 So. 3d 58, 60 (Miss. 2017) (immunity from tort liability under the Mississippi Workers' Compensation Act); Dixon v. Singing River Hosp. Sys. , 632 So. 2d 951, 952 (Miss. 1994) (statutory immunity of community hospitals and boards of trustees); Suddith v. Univ. of S. Miss. , 977 So. 2d 1158, 1168 (Miss. Ct. App. 2007) (federal qualified immunity for state official against § 1983 suits).

¶14. This Court has defined an affirmative defense as one that, "assum[ing] the plaintiff proves everything he alleges and asserts, even so, the defendant wins." Hertz Commercial Leasing Div. v. Morrison , 567 So. 2d 832, 835 (Miss. 1990). That is how Section 11-1-63(h) functions. Even if the plaintiff proves everything under Section 11-1-63(a), the defendant seller still wins by virtue of being a non-manufacturing seller—that is, of course, unless the plaintiff can defeat the seller's immunity by showing one of the three exceptions applies. Miss. Code Ann. § 11-1-63(h). Therefore, the innocent-seller provision is an affirmative defense.

B. Horton Waiver Doctrine

¶15. Since the innocent-seller provision is an affirmative defense, we next ask if Sportsman's Guide waived it. The trial court answered this question in the negative, and we see no abuse of discretion.

¶16. Sportsman's Guide affirmatively pleaded innocent-seller immunity in its answers to the Hintons' original and amended complaints. Still, the Hintons argue the trial court erred by not applying what they call the " Horton Waiver Doctrine."

¶17. In MS Credit Center, Inc. v. Horton , 926 So. 2d 167, 180 (Miss. 2006), this Court held that "[a] defendant's failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to...