Poindexter v. Southern United Fire Ins. Co.

Decision Date27 February 2003
Docket NumberNo. 2001-CA-01512-SCT.,2001-CA-01512-SCT.
Citation838 So.2d 964
PartiesLeo POINDEXTER v. SOUTHERN UNITED FIRE INSURANCE COMPANY.
CourtMississippi Supreme Court

Gary L. Geeslin, Columbus, attorney for appellant.

Thomas L. Segrest, Columbus, attorney for appellee.

EN BANC.

COBB, J., for the Court.

¶ 1. Leo Poindexter's pickup truck was damaged in a collision with a vehicle driven by Elby Fields. Fields was insured under an automobile insurance policy issued by Southern United Fire Insurance Company (Southern United). Poindexter filed suit in the Lowndes County Circuit Court, against Fields and Southern United, seeking to recover compensatory damages and punitive damages directly from Southern United. After Southern United filed an answer for Fields, the same attorney filed a separate answer for Southern United. In Southern United's separate answer, it sought dismissal under Miss. R. Civ. P. 12(b)(6), which the circuit court granted. Poindexter appeals the dismissal, asserting three assignments of error, edited as follows:

I. DISMISSING HIS SUIT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED.
II. DENYING HIS MOTION TO AMEND THE COMPLAINT.
III. HOLDING THAT HIS MOTION TO COMPEL DISCOVERY WAS MOOT.

¶ 2. Although we agree with the trial court's dismissal of Poindexter's original complaint, we find that the trial court erred in denying Poindexter's motion to amend the complaint under Rule 15(a). Hence, we reverse on that issue and remand for further proceedings.

FACTS

¶ 3. In June 2000, Poindexter's 1971 Chevrolet pickup truck (being driven at the time by his son) was involved in a collision with Fields's vehicle at an intersection in Columbus, Mississippi. Poindexter's truck was towed from the scene of the accident and stored at the premises of the tow truck operator.

¶ 4. Poindexter made demand on Fields's insurance carrier, Southern United, for payment to cover damage to his truck, loss of the use and enjoyment of his truck, and towing and storage fees. Southern United made an offer of settlement to Poindexter, which was rejected because it did not include payment for loss of use or towing and storage fees.

¶ 5. Poindexter filed a complaint in circuit court seeking compensatory damages of more than $7,000, which included $3,000 for damage to the truck, with the remainder being loss of use, towing and storage fees. The complaint further prayed for a declaratory judgment, pursuant to Rule 57(b)(2), that Poindexter's claims for loss of use, towing and storage, were covered under Fields's insurance policy with Southern United. Finally, the complaint alleged that Southern United breached its implied covenant of good faith and fair dealing in its settlement offer, and asked for $500,000 in punitive damages. ¶ 6. Southern United answered the complaint as Fields's insurer, and separately, as to its own liability. In its answer in its separate capacity, Southern United admitted that Fields's policy was in full force and effect at the time of the accident, and that unspecified "coverage" existed under the policy. Southern United also asserted the following three defenses: (1) the complaint fails to state a claim or cause of action against Southern United upon which relief may be granted; (2) Poindexter may not bring a direct action against Southern United for recovery of money it may be obligated to pay under its insurance contract with Fields; and (3) Poindexter does not have standing to assert a third-party independent tort claim for bad faith against Southern United.

¶ 7. Poindexter served a request for production of documents, which was partially resisted by Southern United on the basis that it was not a proper party to the lawsuit. Poindexter then filed a motion to compel discovery.

¶ 8. Pursuant to Rule 12(d), Southern United moved for a preliminary hearing on its motion to dismiss. Poindexter then filed a motion for leave to file a first amended complaint, to add the additional claim of intentional infliction of emotional distress.

¶ 9. The trial court conducted a hearing on Southern United's motion to dismiss and Poindexter's motions to compel discovery and for leave to file a first amended complaint. At the conclusion of the hearing, the trial court granted Southern United's motion to dismiss and denied Poindexter's two motions. The trial court specifically concluded that: Poindexter could not bring a direct action against Southern United for recovery of sums which it may become obligated to pay under its insurance policy with Fields; Poindexter could not assert a separate or independent tort claim against Southern United for its alleged failure to settle Poindexter's claims against Fields; and because Southern United has admitted coverage for the accident, there existed no grounds for Poindexter to proceed against Southern United under Rule 57.

¶ 10. The trial court also found that Rule 12(b) provides that upon dismissal for failure to state a claim, leave to amend shall be granted in accordance with Rule 15(a), subject to the trial judge's sound discretion, but because Poindexter would be unable to state a cause of action against Southern United under the facts set forth in the complaint, together with any reasonable inferences to be drawn therefrom, granting leave to amend would be futile. Finally, the trial court dismissed Poindexter's motion to compel discovery as moot.

¶ 11. Only Poindexter's separate claims against Southern United were dismissed pursuant to Miss. R. Civ. P. 54(b) and are before this Court on appeal. Poindexter's claims for property damage, loss of use, towing and storage against Fields are not the subject of this appeal.

STANDARD OF REVIEW

¶ 12. This Court's standard of review for a motion to dismiss for failure to state a claim upon which relief may be granted is well-established, as follows:

A motion to dismiss for failure to state a claim under Mississippi Rule of Civil Procedure 12(b)(6) raises an issue of law. This Court reviews questions of law de novo. When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.
Sennett v. United States Fid. & Guar. Co., 757 So.2d 206, 209 (Miss.2000) (citations omitted).

DISCUSSION

I. DISMISSING THE SUIT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED.

¶ 13. Poindexter claims Southern United has taken the position that it is not responsible for loss of use, towing or storage costs. By taking this position, Poindexter argues that Southern United has denied its claim against Fields, and thus Poindexter is permitted to join Southern United as a defendant, pursuant to Rule 57.

¶ 14. Southern United responds that it has not denied coverage, that it has admitted that Fields's policy was in full force and effect at the time of the accident, and that it concedes that coverage existed under the policy. Southern United argues that the position it has taken clearly has nothing to do with coverage; instead, it solely concerns the extent, amount and character of damages which Poindexter is claiming. Southern United states that when Poindexter's suit against Fields is finally tried, and if Poindexter obtains a final non-appealable judgment for his claims, Southern United, as Fields' insurer, will pay that judgment up to the limits of its policy with Fields.

¶ 15. Rule 57 was amended in 2000 to modify Mississippi's traditional rule which barred any type of direct action by an injured party against an insurer. Miss. R. Civ. P. 57(b)(2) & cmt. The amended rule allows an injured party to seek a declaratory judgment establishing coverage, where the insurance company has indicated it may deny coverage of the claim. The amended rule reads in pertinent part:

(2) A contract may be construed either before or after there has been a breach thereof. Where an insurer has denied or indicated that it may deny that a contract covers a party's claim against an insured, that party may seek a declaratory judgment construing the contract to cover the claim.

Miss. R. Civ. P. 57(b)(2).

¶ 16. Poindexter claims that the amended Rule 57 is merely a codification of Lewis v. Allstate Ins. Co., 730 So.2d 65, 71 (Miss.1998), where this Court held:

We take this opportunity to state that if an insurance company can conduct a declaratory action regarding coverage prior to resolution of an underlying wrongful death trial, then the insureds and third party beneficiaries should be able to raise the coverage question in the underlying lawsuit as well. Pursuant to our rules of civil procedure, a hearing to determine coverage may be conducted if necessary. See Miss. R. Civ. P. 57 cmt. (recognizing that a plaintiff may ask for a declaratory judgment either as his sole relief or in addition or auxiliary to other relief). Such reviews of insurance contracts do not involve the jury and are often cursory. Accordingly, if a question of insurance coverage exists, a party should be able to bring the insurer into a lawsuit and have the coverage question resolved by the judge. It should be noted that this does not mean that a party can mention insurance before a jury, as that rule still holds in this state.

¶ 17. Southern United contends that Poindexter's truck was rendered a total loss in the accident. Poindexter does not seem to dispute this, admitting in his brief that "Plaintiff's vehicle was later determined to be a total loss." In its settlement offer, Southern United took the position that Poindexter could not recover damages for loss of use and storage of a vehicle that is not repairable. Southern United, however, reminds this Court that this appeal is not the proper forum in which to litigate this issue, as this issue must be decided when Poindexter's case against Fields is tried. Southern United correctly states:

In attempting to litigate these issues under the guise of a
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