Kenney v. Foremost Ins. Co.

• Court: United States State Supreme Court of Mississippi
• Citation: 200 So.3d 1048
• Docket Number: NO. 2015-CA-01051-SCT,2015-CA-01051-SCT
• Parties: Sharel A. Kenney v. Foremost Insurance Company and USAA Casualty Insurance Company
• Decision Date: 22 September 2016

200 So.3d 1048

Sharel A. Kenney
v.
Foremost Insurance Company and USAA Casualty Insurance Company

NO. 2015-CA-01051-SCT

Supreme Court of Mississippi.

September 22, 2016

CHUCK McRAE, SETH CLAYTON LITTLE, ATTORNEYS FOR APPELLANT

DALE GIBSON RUSSELL, MICHAEL CHRISTOPHER GATLING, TIMOTHY JOHN STERLING, CHARLES G. COPELAND, ATTORNEYS FOR APPELLEES

BEFORE RANDOLPH, P.J., LAMAR AND KITCHENS, JJ.

RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. Sharel A. Kenney appeals the trial court's grant of summary judgment in favor of USAA Casualty Insurance Company (USAA-CIC) and Foremost Insurance Company (Foremost). Finding that the trial court erred in granting summary judgment as to Foremost but not as to USAA-CIC, we affirm the trial court in part and reverse and remand in part.

FACTS AND PROCEEDINGS BELOW

¶ 2. In June 2011, Kenney purchased a motorcycle in Slidell, Louisiana. Kenney, a Louisiana resident, completed a Louisiana Motorcycle Insurance Application with Foremost, which included an Uninsured/Underinsured Motorist Bodily Injury Coverage Form (“UMBI Form”). Pursuant to the UMBI Form, Kenney elected not to purchase UMBI coverage. Following receipt of the application and the UMBI Form, Foremost issued Policy No. 276 0072696768 to Kenney. Daniel Steilberg, Kenney's fiancé, was listed as an operator on the insurance policy.

¶ 3. In May 2012, while riding the motorcycle, Kenney and Steilberg were involved in an accident with an uninsured motorist on Highway I-90 in Bay St. Louis, Mississippi. After the accident, Kenney made claims for uninsured-motorist coverage under three separate policies. First, Kenney made a claim from Foremost. She was informed that “the policy in existence at the time of the accident did not include payment of medical expenses or uninsured/underinsured coverage.” Kenney did

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receive payments totaling $18,096.86 from Foremost, representing the actual cash value for property damage to the motorcycle. Kenney also filed a claim with USAA-CIC, the insurer for Kenney's Dodge Charger, but she was denied payment for medical expenses and uninsured/underinsured-motorist coverage.¹

¶ 4. After the denials of coverage, Kenney filed suit in the Circuit Court of Hancock County against the uninsured motorist, Foremost, USAA-CIC, and Steilberg, alleging bad-faith denial of insurance/breach of contract, breach of fiduciary duty/duty of good faith and fair dealing, negligence/gross negligence, and intentional infliction of emotional distress, inter alia . Kenney also prayed for declaratory relief.

¶ 5. Steilberg moved to dismiss Kenney's complaint, as the complaint “merely identifies Defendant Steilberg as a party but nowhere in the Amended Complaint is there any allegation of wrongdoing, breach of duty or any attempt whatsoever to describe a factual or legal basis for Defendant Daniel R. Steilberg to remain a party defendant to this action.” The trial court granted Steilberg's motion to dismiss and granted Kenney sixty days to file an Amended Complaint.

¶ 6. USAA-CIC filed a motion for summary judgment, arguing that Kenney's USAA-CIC policy named Kenney as the named insured and insured only Kenney's 2009 Dodge Charger. USAA-CIC further argued that the policy afforded Kenney no uninsured-motorist coverage for the accident and USAA-CIC had an arguable basis for denying Kenney's claim for such coverage. USAA-CIC averred that, pursuant to Boardman v. USAA , 470 So.2d 1024 (Miss.1985), and O'Rourke v. Colonial Ins. Co. , 624 So.2d 84 (Miss.1993), Louisiana law applied to Kenney's policy dispute.

¶ 7. Foremost also moved for summary judgment, arguing that Kenney had waived uninsured-motorist coverage when she elected not to purchase coverage from Foremost. Foremost argued it was not liable to Kenney and that all claims should be dismissed. Foremost also averred that Louisiana law applied to Kenney's claim for uninsured-motorist benefits pursuant to Boardman and Colonial.

¶ 8. During the hearing on the motions for summary judgment, the trial court ruled that Louisiana law applied to the policy disputes, that Kenney had opted out of uninsured-motorist coverage from Foremost, that Kenney was afforded no uninsured-motorist coverage under USAA-CIC's policy, and that there was no bad faith on Foremost's or USAA-CIC's part in denying uninsured-motorist coverage. The trial court granted both motions for summary judgment.

¶ 9. The trial court entered a final judgment pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure as to USAA-CIC and Foremost. After the sixty-day time period lapsed without Kenney filing an amended complaint, the trial court also dismissed Steilberg's claim with prejudice.² Kenney timely filed notice of her appeal.

ISSUES

¶ 10. Kenney argues the following issues:

I. THE TRIAL COURT ERRED IN ITS CHOICE OF LAW DETERMINATION BY FINDING THAT LOUISIANA LAW AND NOT MISSISSIPPI

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LAW GOVERNED THE UNDERLYING INSURANCE CONTRACT DISPUTES BETWEEN APPELLANT KENNEY, FOREMOST INSURANCE COMPANY AND USAA-CIC.

II. THE TRIAL COURT ERRED IN ITS FINDING THAT APPELLANT KENNEY EXECUTED A VALID WAIVER OF UNINSURED MOTORIST INSURANCE IN HER APPLICATION WITH FOREMOST INSURANCE COMPANY.

ANALYSIS

¶ 11. This Court applies a de novo standard of review for grants of summary judgment. Harris v. Darby , 17 So.3d 1076, 1078 (Miss.2009). For sake of clarity, the issues identified by Kenney have been restated in this opinion.

I. THE PROPER CHOICE OF LAW IN THIS MATTER IS LOUISIANA.

¶ 12. The precedent set by this Court and relied upon by the trial court dictates that Louisiana law should apply to this dispute. See O'Rourke v. Colonial Ins. Co. , 624 So.2d 84 (Miss.1993), and Boardman v. USAA , ...