Jackson v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 19 August 2004
• Docket Number: No. 2001-CT-01683-SCT.,2001-CT-01683-SCT.
• Citation: 880 So.2d 336
• Parties: Rebecca L. JACKSON and Gary Jackson v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
• Court: Mississippi Supreme Court

880 So.2d 336

Rebecca L. JACKSON and Gary Jackson v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

No. 2001-CT-01683-SCT.

Supreme Court of Mississippi.

August 19, 2004.

Lampton O. Williams, Jr., Poplarville, attorney for appellants.

Billy W. Hood, Jeffrey G. Pierce, Gulfport, attorneys for appellee.

EN BANC.

ON WRIT OF CERTIORARI

SMITH, Chief Justice, for the Court.

¶ 1. This insurance coverage case is before this Court on writ of certiorari to review the judgment of the Court of Appeals which reversed the summary judgment of the Circuit Court of Pearl River County dismissing the insureds' suit against the insurer as untimely.

¶ 2. Finding that the circuit court's grant of summary judgment was eminently correct, we reverse the judgment of the Court of Appeals and affirm the judgment of the circuit court.

FACTS & PROCEDURAL HISTORY

¶ 3. On February 10, 1995, while stopped in her car at an intersection, Rebecca L. Jackson was "bumped" from behind by the vehicle driven by John Bordelon. Bordelon had insurance coverage at the time of the accident.¹ The car Rebecca was driving was insured with State Farm Mutual Automobile Insurance Co. in the name of her husband, Gary Jackson. The damage to the Jacksons' vehicle was described as two scratches, and Bordelon's insurance carrier ultimately paid $181.00 to repair the vehicle. The Jacksons did not notify State Farm about the accident.

¶ 4. Rebecca went to the emergency room that evening complaining of neck pain and Xrays and a CAT scan were taken of her cervical spine. She was given prescriptions and referred to a neurosurgeon if she had additional problems. Approximately two weeks later Rebecca saw the neurosurgeon and complained of neck pain and lower back pain. More Xrays were taken, and she was prescribed a few weeks of physical therapy and was to return when that was complete. On May 4, 1995, Rebecca returned to the emergency room complaining of increased pain in her lower back. An MRI revealed "[d]egenerative disc disease at L3-4, L4-5, and L5-S1 with central disc herniation and marginal spurs." On May 10, 1995, Rebecca saw the neurosurgeon again. The records from that visit reveal that Rebecca postponed the prescribed physical therapy so that she could visit her husband in California, but that once she began therapy that it helped the neck pain. The medical records also discuss that her lower back pain had increased and that she went to the emergency room. Specifically, the medical records state,

She was seen in the Emergency Room by Dr. Floyd with these complaints. He obtained an MRI scan of the lumbosacral spine which shows considerable degenerative disc disease at L3-4, L4-5 and L5-S1. In fact, at the L4-5 level there is a probable central disc herniation which effaces the sac and the L5 roots.

The neurosurgeon further stated that he and Rebecca discussed the "focal disc rupture centrally at L4-5," that he recommended additional conservative measures of treatment for her lower back, and "[s]he is in complete agreement with this approach." (emphasis added). Rebecca continued with physical therapy treatments, home exercises, and visited with the neurosurgeon again on June 7, 1995. He noted that she showed significant improvement even though she had missed several physical therapy sessions. On August 14, 1995, Rebecca and Gary saw the neurosurgeon together. Even though she failed to do her home exercises as prescribed, her neck and back pain had diminished considerably and she had "virtually no neck discomfort." The doctor declared that she had reached "maximum medical improvement" and released her from his care. All of the medical records indicate that the neurosurgeon fully discussed the prognosis with Rebecca and that she understood and agreed with him.

¶ 5. Some time before December 22, 1995, Rebecca and Gary hired an attorney to represent them against Bordelon. On November 10, 1997, two years and nine months after the accident and two years and four months after reaching maximum medical improvement, Rebecca returned to the neurosurgeon for reassessment. The medical records from that visit reveal that Rebecca called his office during the previous year "complaining of neck, back and/or leg pain" and had failed to show up for several visits. The neurosurgeon also states that he "reviewed the patient's lumbar MRI scan with findings as outlined previously. I discussed the situation with Ms. Jackson." Rebecca was again prescribed a course of physical therapy and home exercise. Rebecca saw the neurosurgeon again on December 10, 1997, and January 28, 1998, both times reporting that her condition was improving with physical therapy and home exercise. On January 28, 1998, she reported that she was pregnant and the neurosurgeon advised her to discuss her treatment with her other physician.

¶ 6. On February 3, 1998, just a few days before the statute of limitations would run, Rebecca and Gary filed their complaint against Bordelon and Ratcliff in the Circuit Court of Pearl River County. The Jacksons alleged that Bordelon was negligent and caused the February 10, 1995, collision and that Rebecca "was caused to suffer serious, permanent, painful and disabling injuries." (emphasis added). Gary and Rebecca sought damages, which included compensation for Rebecca's "personal injuries and personal disability," her past, present and future medical expenses, lost wages, and Gary's loss of consortium.

¶ 7. Rebecca returned to the neurosurgeon again on October 8, 1998. The medical records for the visit reveal that Rebecca delivered her baby about a month earlier and that she was experiencing back pain. The medical records state "any lifting will aggravate that pain" and that the neurosurgeon "discussed the situation with Ms. Jackson in some detail." Rebecca was again prescribed a course of physical therapy and home exercise and agreed that her non-compliance with the exercise program was a problem.

¶ 8. On January 4, 1999, counsel for Bordelon and Ratcliff served their responses to the Jacksons' first set of interrogatories. In those responses Bordelon and Ratcliff stated that they had insurance coverage for the accident with Mississippi Farm Bureau Insurance Company with coverage limits of $20,000 per person and $50,000 per accident.

¶ 9. Rebecca returned to the neurosurgeon again on September 1, 1999. The medical records for the visit state that when Rebecca called for the appointment she was having "tremendous problems with her lower back" because she had stopped doing her home exercises, but that she started doing them again and on the date of the visit was not having any pain.

¶ 10. On November 18, 1999, the Jacksons' attorney sent a letter to the neurosurgeon asking for his opinion to assist the Jacksons in their claim for personal injuries. The letter asked a total of five questions and provided two blanks under each question for the doctor to mark "yes" or "no." The doctor's responses restated his diagnosis and treatment discussed above. He signed his fill-in-the-blank responses before a notary public on November 23, 1999, and returned them to the Jacksons' attorney.

¶ 11. On January 10, 2000, counsel for Bordelon and Ratcliff sent a letter to the Jacksons' attorney advising him that the coverage amount stated in the response to interrogatory number 10 erroneously stated that the limit was $20,000 per person, when the limit was actually $25,000 per person. On that same day, the Jacksons contacted their local State Farm agent and reported their underinsured motorist claim arising from the February 1995 accident. On January 27, 2000, the Jacksons' attorney gave State Farm notice of the lawsuit filed in February 1998 and provided State Farm with a copy of the complaint. On April 18, 2000, as part of its investigation of the claim, State Farm took Rebecca's sworn statement. In response to questions, Rebecca stated approximately 20 times that she could not remember facts and details relevant to the case. Following its investigation, State Farm concluded that the claim was time-barred pursuant to the Mississippi statute of limitations and that the Jacksons had failed to meet policy and statutory requirements concerning timely notice of claims and actions against the owner or operator of an underinsured vehicle and denied the Jacksons' claim.

¶ 12. On July 12, 2000, five years and five months after the accident, the Jacksons filed their amended complaint adding State Farm as a defendant. State Farm filed a motion for summary judgment, the Jacksons filed a response in opposition, and both parties submitted briefs. On September 21, 2001, the circuit court entered a twelve-page opinion and order, in which the trial court made findings of fact and conclusions of law and granted State Farm's motion for summary judgment.

¶ 13. The circuit court found that the policy entered into between State Farm and Gary Jackson, an independent insurance adjuster, required that the insured "give State Farm notice of an accident or loss `as soon as reasonably possible,' and, if suing an uninsured motorist, provide State Farm with `a copy of all suit paper.'" The circuit court noted that the Jacksons filed suit in February 1998 for Rebecca's "severe, permanent and disabling injuries" and that, "at the time of filing suit, the Jackson's were under the belief that Defendant Ratcliff's automobile insurance had policy limits of 20/50/20." In a footnote, the trial court noted that the Jacksons later learned that the coverage was actually $5,000 higher per person. The circuit court noted that the Jacksons admit that they did not give State Farm any notice until January 10, 2000. The circuit court also stated,

The Jackson's claim they were unaware of the extent of R. Jackson's injuries until her doctor, Dr. Kerry L. Bernardo checked the "Yes" box to five "yes or no" questions submitted to him in a letter dated November 18, 1999 ostensibly sent from Jackson's counsel. The

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