Medders v. U.S. Fidelity and Guar. Co.

• Decision Date: 05 August 1993
• Docket Number: No. 07-CA-59570,07-CA-59570
• Citation: 623 So.2d 979
• Parties: James MEDDERS, Margaret Medders, James Medders, Jr., Melissa Kay Medders, Doris Mitchell Medders, Michael Hugh Medders, Charlotte Bradley Medders, Robert Winon Medders, Myra Lewellyn Medders, Dennis Randall Medders, Deborah Ann Harpole, and Harvey Medders, v. UNITED STATES FIDELITY AND GUARANTY COMPANY.
• Court: Mississippi Supreme Court

Page 979

623 So.2d 979

James MEDDERS, Margaret Medders, James Medders, Jr., Melissa Kay Medders, Doris Mitchell Medders, Michael Hugh Medders Charlotte Bradley Medders, Robert Winon Medders, Myra Lewellyn Medders, Dennis Randall Medders, Deborah Ann Harpole, and Harvey Medders, v. UNITED STATES FIDELITY AND GUARANTY COMPANY.

No. 07-CA-59570.

Supreme Court of Mississippi.

Aug. 5, 1993.

Rehearing Denied Sept. 23, 1993.

Ralph Edwin Chapman, Chapman & Heaton, Dana J. Swan, Chapman Lewis & Swan, Clarksdale, for appellants.

Gerald H. Jacks, Andrew M.W. Westerfield, Jacks Adams & Westerfield, Cleveland, for appellee.

EN BANC.

BANKS, Justice, for the Court:

I

Involved in the dispute presently before the Court is whether the exclusivity of our worker's compensation statutory scheme bars recovery under an employer's uninsured motorist coverage (UM) where the uninsured motorist is uninsured only because he is a fellow employee acting in the course and scope of his employment. Resolution of that question requires us to interpret the words "legally entitled to recover" as used in the statute defining those claims for which uninsured motorist insurance is compelled. The trial court issued an order granting summary judgment denying coverage. We affirm.

II

United States Fidelity & Guaranty Company (USF & G) filed a complaint for interpleader pursuant to Miss.R.Civ.P. 22, listing as defendants, inter alia, the wrongful death beneficiaries of Clarence Medders. In the complaint which was filed March 18, 1988, USF & G alleged that it issued a business automobile liability insurance policy to L.B. Williams, d/b/a as Williams Ambulance Service (Williams). The policy was in effect on February 14, 1987, when an ambulance operated by an employee and agent of Williams, John Oswalt (Oswalt), collided with a truck owned by Georgia-Pacific Corporation and driven by Harold Hunter. At the time of the accident, Oswalt was transporting a patient, Elmer Franklin, Sr., to a hospital in Memphis, Tennessee. Also, riding in the ambulance was Clarence Medders (Clarence). Resulting from the accident were the deaths of all the ambulance passengers, personal injury to Hunter, and property damage to the truck.

Numerous claims were filed against Williams. USF & G then filed an interpleader action and had the claimants assert their rights to the amount due under the terms and provisions of the policy. The liability policy issued to Williams had a single limit coverage for liability for bodily injury and property damage of $300,000 per accident. By the terms of the policy coverage was provided for seven automobiles. Also, USF & G provided that the most it would pay in uninsured motorist benefits was $25,000 per accident.

The Medders filed their "Answer to Complaint for Interpleader and Counterclaim" on April 19, 1988. They alleged affirmatively that the actions of ambulance driver and co-employee, Oswalt, were so grossly negligent as to remove the action from the purview of exclusion found in the Mississippi Workers Compensation Act (Act) so that they were entitled to the policy benefits and damages for the wrongful death of Clarence. The heirs also pled that the policy "contemplated that [Clarence] would be an 'insured' under said policy and further that the Medders family received no personal workers compensation benefits and are not precluded from asserting this claim pursuant to any law or statute." They counter-claimed, asserting alternatively that in the event the court determined that they were not entitled to liability benefits, then the uninsured motorist benefits under the policy should be available to them. The heirs asserted further that if "stacking" were allowed, then they would be entitled to at least the sum of $125,000, since USF & G insured seven vehicles for $25,000 each.

One group of the claimants to the interpled funds, the heirs of Franklin, filed a "Motion for Summary Judgment as to Claims of Defendants, Medders, to the Interpled Funds." They alleged "upon information and belief" that the Medders received no personal worker's compensation benefits because none of them were dependent upon Clarence at the time of death not because of the inapplicability of the worker's compensation act. They claimed further that Williams' liability was limited to workers compensation benefits, as that was their exclusive remedy. Additionally, they argued that the business auto section of the liability policy issued to Williams contained certain exclusions which barred the Medders' claim. The section reads:

WE WILL NOT COVER--EXCLUSIONS.

This insurance does not apply to:

2. Any obligation for which the insured or his or her insurer may be held liable under any workers' compensation or disability benefits law or under any similar law.

3. Any obligation of the insured to indemnify another for damages resulting from bodily injury to the insured's employee.

4. Bodily injury to any fellow employee of the insured arising out of and in the course of his or her employment.

5. Bodily injury to any employee of the insured arising out of and in the course of his or her employment by the insured. However, this exclusion does not apply to bodily injury to domestic employees not entitled to workers' compensation benefits.

USF & G filed an "Answer to Affirmative Matter and Counterclaim" alleging that pursuant to Mississippi law, uninsured motorist benefits were not available to Clarence, if he had lived, nor to his heirs. Following the filing of this answer, it filed a "Motion for Summary Judgment as to the Claims of Defendants and Counter-claimants Medders to Uninsured Motorist Benefits." In this motion, the insurer argued that because the Medders were limited to workers compensation benefits pursuant to Miss.Code Ann. Sec. 71-3-9 (1972), its motion requesting dismissal of the complaint should be granted.

The Medders responded to the motion for summary judgment. In answer to USF & G's denial of liability coverage, they stated that the actions of the driver of the ambulance were of such a nature as to fall within the exception to the exclusivity rule. In the alternative, they asserted that if the actions did not fall within the exception to the rule, then the statute was unconstitutional, violative of due process and public policy. They also claimed that they were entitled to uninsured motorist benefits. Included in the answer was a cross-motion for summary judgment in which the Medders requested that the court determine that they were entitled to uninsured motorist benefits, as a matter of law, pursuant to the terms of the policy.

USF & G responded to Medders cross-motion for summary judgment by claiming that worker's compensation benefits had been paid to the heirs and that the worker's compensation remedy was exclusive and prohibited action by them to reach uninsured motorist benefits. Requested the court to deny the cross-motion for summary disposition.

A hearing was held on USF & G's motion for summary judgment, after which the circuit court found that there were no genuine issues of material fact and that the motion should be granted. The court also dismissed the counter-claim filed by the Medders. The Medders perfected an appeal to this court.

III

The facts about this tragic occurrence are gleaned from the deposition testimony of Earl Lake (Lake) who was deposed on November 7, 1986. His testimony was taken in connection with a suit brought by the Medders in federal court and was submitted in support of their answer and cross-claim for summary judgment.

Lake testified that during the late morning on February 14, 1986, he was conducting business. He recalled that the weather was inclement. "It was raining, light rain, but rain. The highway had water in it like it does, 61, the two sets where the tires go. And it was real foggy, just a fog rain ... The visibility was real bad." He testified that one could not see more than a quarter of a mile in any direction. The weather made the time of day seem later than it actually was. Just before the accident, he noticed that an ambulance was behind him travelling very fast. He stated that the ambulance seemed to emerge from the fog. Lake noticed that the headlights were illuminated and the emergency equipment activated. The siren was not on, however. He noticed that it was close to him and he thought that it was going to hit him given the speed it was going. He continued,

There was no way that I thought then that he could keep from hitting me. And I looked in the southbound lane, the eighteen-wheeler that was coming and I said: 'There is no way this guy is going to try to pass me right now, he just can't do it and if he will just hold on, I am going to get out of his way.'

So I started to pull off the road as much as I could because I was going between fifty and fifty-five and I couldn't yank off the right, there was a low shoulder out there, just a few feet from the blacktop there, the edge of the road and I just couldn't yank off the highway but I was going to try to give him as much room as I could so when I saw him the first thing I did was take my foot off the gas and start pulling to my right. But when I did that I looked back in my mirror and he almost touched me then. So when I started to slow up here is somebody that is driving seventy-five or eighty miles an hour you know he gets real close to me then and I take my foot off the brake and start putting it back on the gas and started easing away from him.

Well, when I pulled off the road he starts pulling off the road right behind me to my right. I looked in my right view mirror on the right side of the truck and I saw the ambulance on the grass behind me with his nose down because he had gone off that low shoulder and he was back there just behind me like I was driving, you know.

And I said: 'oh, God, what am I going to do?'

And I was just saying to myself, no matter what, I said: 'He is going to hit me, but I don't want him to...