LUMBERMAN'S UNDERWRITING v. Rosedale

• Decision Date: 31 December 1998
• Docket Number: No. 96-CA-01119-SCT.,96-CA-01119-SCT.
• Citation: LUMBERMAN'S UNDERWRITING v. Rosedale, 727 So.2d 710 (Miss. 1998)
• Parties: LUMBERMAN'S UNDERWRITING ALLIANCE and Northbrook Property and Casualty Insurance Company v. CITY OF ROSEDALE, Mississippi.
• Court: Mississippi Supreme Court

727 So.2d 710

LUMBERMAN'S UNDERWRITING ALLIANCE and Northbrook Property and Casualty Insurance Company v. CITY OF ROSEDALE, Mississippi.

No. 96-CA-01119-SCT.

Supreme Court of Mississippi.

December 31, 1998.

Paul L. Goodman, Greenwood, Stephen M. Halbeisen, Dallas, TX, Attorneys for Appellants.

Forrest W. Stringfellow, Arthur S. Johnston, III, Jackson, Attorneys for Appellee.

Before PITTMAN, P.J., and BANKS and WALLER, JJ.

WALLER, Justice, for the Court:

¶ 1. This case is an appeal from the Order of the Circuit Court in Bolivar County, Mississippi, granting summary Judgment in favor of the City of Rosedale. On August 30, 1993, a fire occurred which damaged the Piggly Wiggly supermarket and Bill's Dollar Store located in Rosedale, Mississippi. Northbrook Property and Casualty Insurance Company provided property insurance for Piggly Wiggly. Lumberman's Underwriting Alliance provided property insurance for Bill's Dollar Store. Accordingly, Lumberman's and Northbrook are subrogated to the interests of Bill's Dollar Store and Piggly Wiggly, respectively. Lumberman's and Northbrook separately filed complaints alleging negligence on the part of the City of Rosedale concerning the water supply necessary to fight the fire.

¶ 2. Aggrieved by the judge's grant of summary Judgment in favor of the City of Rosedale, Lumberman's and Northbrook assign the following as error:

I. THE TRIAL COURT ERRED IN FAILING TO EXAMINE WHETHER ZOLA LEE CHERRY HAD APPARENT AUTHORITY TO BIND THE CITY OF ROSEDALE IN TURNING OFF THE WATER SUPPLY TO THE BUILDING'S SPRINKLER SYSTEM.

II. ZOLA LEE CHERRY WAS PERFORMING A PROPRIETARY FUNCTION, WHICH IS NOT SUBJECT TO MUNICIPAL TORT IMMUNITY UNDER MISSISSIPPI LAW, WHEN HE TURNED OFF THE WATER SUPPLY TO THE PIGGLY WIGGLY AND BILL'S SPRINKLER SYSTEM.

III. THE AMENDED COMPLAINTS SUFFICIENTLY SET FORTH CLAIMS THAT CREATE A JURY ISSUE AS TO WHETHER ZOLA LEE CHERRY ACTED IN WANTON OR RECKLESS DISREGARD FOR THE PROPERTY OF BILL'S AND PIGGLY WIGGLY AND AS TO WHETHER CHERRY ACTED WITHIN THE COURSE AND SCOPE OF HIS EMPLOYMENT WITH THE CITY OF ROSEDALE.

After a careful examination and consideration of the record, briefs and oral argument in this matter, this Court finds that Lumberman's and Northbrook have not demonstrated that there exists a genuine issue of fact and, therefore, affirms the trial judge's grant of summary judgment.

I.

¶ 3. On August 30, 1993, a fire of unknown origin occurred at the premises occupied by Bill's Dollar Store ("Bills") located in Rosedale, Mississippi. The fire subsequently spread to the adjacent space occupied by a Piggly Wiggly supermarket ("Piggly Wiggly"). The building structure was owned by Michael's Enterprises ("MEI") and was leased to the two aforementioned tenants. The fire destroyed the building's structure, as well as property of Bill's and Piggly Wiggly.

¶ 4. At some time prior to the fire, a water line was leaking due to a burst pipe and was causing water to back up in the rear of Piggly Wiggly, thereby preventing trucks from making necessary deliveries. At the request of a private individual (either MEI or the Piggly Wiggly manager), Zola Cherry ("Cherry"), City of Rosedale employee, turned off the water line that was leaking. The water line in question supplied water to the stores' sprinkler system.

¶ 5. Northbrook Property and Casualty Company ("Northbrook") insured Piggly Wiggly and paid Piggly Wiggly $1,347,427.56, less the $5,000 deductible applied to Piggly Wiggly's claim. Lumberman's Underwriting Alliance ("Lumberman's") insured Bill's and likewise made certain payments pursuant to its policy with Bill's.

¶ 6. Both Northbrook and Lumberman's (collectively "insurers") became subrogated to the rights of Piggly Wiggly and Bill's respectively, and each filed a complaint against the City of Rosedale ("City") on November 22, 1994. Northbrook's complaint primarily alleges negligence with respect to the City's supply, maintenance, inspection, and repair of its fire hydrants and its supply of water for fire fighting purposes. Lumberman's complaint similarly focused upon the water supply and pressure to the water hydrants. In addition to its allegations concerning the City's negligence, Lumberman's also sued MEI, asserting that an agent of MEI, or someone acting at MEI direction, caused the water supply to be cut off to a water line which supplied the water sprinklers for both Piggly Wiggly and Bill's. ¶ 7. The City answered both lawsuits, asserting the affirmative defense of sovereign immunity afforded under Miss.Code Ann. 11-46-1 et seq. On January 16, 1996, after written discovery had been propounded and responded to, the City filed a motion to dismiss, or alternatively, for partial summary judgments. In support of its motion, the City filed the affidavit of Zola Cherry in which he testified that his actions in turning off the line supplying water to Bill's and Piggly Wiggly, which he asserted was not owned by the City, was done at the request of the Piggly Wiggly manager and was not at the direction of the City; and, that in so doing, he was not acting as a city employee. Northbrook and Lumberman's filed responses in opposition to the motion to dismiss or for summary Judgment on February 20, 1996.

¶ 8. Also on February 20, 1996, Northbrook and Lumberman's filed motions to amend their complaints, along with a motion to consolidate. The proposed amended complaints were made a part of this record for appeal. The amended complaints alleged that the City shut off the water line which supplied water to the sprinkler system to the building occupied by Piggly Wiggly. The complaints asserted that the City shut off this line pursuant to the request of MEI, owner of said building, and the insurers claim that the City was aware or should have been aware that shutting off the water line to the premises kept the building's fire sprinkler system from operating. The City filed its response in opposition to the insurers' motions to amend their complaints on March 6, 1996.

¶ 9. In response to the judge's order (dated June 6, 1996 and filed on June 10), and in support of its motion to dismiss or for summary judgment, the City filed its itemization of facts on June 17, 1996. The insurers filed their response to the City's itemization of facts on June 26, 1996, and, at the same time, filed the affidavit of Roger Derrick Simpson, the manager of Piggly Wiggly, in which, in direct contrast to Cherry, he testified that he did not instruct Cherry to turn off the line supplying the sprinkler system and that his impression was that Cherry presented himself as an employee of the City.

¶ 10. On September 24, 1996, the trial judge entered an order granting the City's motion for summary Judgment. The trial judge stated that "[t]hough the court has not issued an order granting the plaintiffs motion to amend, the court will consider the defendant's motion for summary judgment as if such amendments were allowed." The trial judge, in his grant of summary judgment in favor of the City, stated that

the City has complete immunity for its actions concerning the water supply of the fire hydrant's under § 11-46-3 and § 11-46-9. Another allegation involves the City's responsibility for its employee's turning off the sprinkler water system line. The City has provided an affidavit showing that the employee acted on his own time at the request of a private citizen and turned off a private water line supplying the water line supplying the sprinkler system. The affidavit also provides that the water line is connected to a Port water line, not a City water line. This means that the City's only connection is that an off-duty employee did the work, and this is not enough to make the City liable. The plaintiff's while denying that these statements are true, offer no evidence or affidavits relating specific facts in order to make this a genuine issue for trial as Rule 56 requires. Rule 56(e) provides that summary judgment shall be entered if a party responds to a motion with mere allegations or denials. That is the situation in this case.

II.

¶ 11. This Court recently set forth the standard of review for summary judgment in Aetna Casualty & Surety Co. v. Berry, 669 So.2d 56 (Miss.1996). In Berry, this Court stated:

The standard for reviewing the granting or the denying of summary judgment is the same standard as is employed by the trial court under Rule 56(c). This Court conducts de novo review of orders granting or denying summary judgment and looks at all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to a judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt.

Id. (quoting Mantachie Natural Gas v. Mississippi Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992); see alsoCaldwell v. Alfa Ins. Co., 686 So.2d 1092, 1095 (Miss.1996)).

¶ 12. Moreover, a motion for summary judgment should be denied unless the trial court finds beyond any reasonable doubt that the plaintiff would be unable to prove any facts to support his/her claim. Yowell v. James Harkins Builder, Inc., 645 So.2d 1340, 1343 (Miss.1994); Fadden v. State, 580 So.2d 1210 (Miss.1991). The trial court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried. Yowell, 645 So.2d at 1343-44; Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983...