Progressive Gulf Ins. v. We Care Day Care

• Decision Date: 10 October 2006
• Docket Number: No. 2005-CA-00905-COA.,2005-CA-00905-COA.
• Citation: 953 So.2d 250
• Parties: PROGRESSIVE GULF INSURANCE COMPANY, Appellant v. WE CARE DAY CARE CENTER, INC., Nathan A. Bonner, Nancy G. Deese and Jessie Deese, A Minor, Appellees.
• Court: Mississippi Court of Appeals

953 So.2d 250

PROGRESSIVE GULF INSURANCE COMPANY, Appellant v. WE CARE DAY CARE CENTER, INC., Nathan A. Bonner, Nancy G. Deese and Jessie Deese, A Minor, Appellees.

No. 2005-CA-00905-COA.

Court of Appeals of Mississippi.

October 10, 2006.

Rehearing Denied March 20, 2007.

Charles Cameron Auerswald, Richard L. Kimmel, Steven Cavitt Cookston, Greenwood, attorneys for appellant.

Robin L. Roberts, Hattiesburg, Brandon L. Brooks, Charles Martin Leggett, Waynesboro, attorneys for appellees.

Before LEE, P.J., CHANDLER and GRIFFIS, JJ.

CHANDLER, J., for the Court.

¶ 1. In this appeal, we are asked to determine whether an automobile insurance policy issued by Progressive Gulf Insurance Company to Bessie Mullins afforded liability coverage for a vehicular accident that occurred on January 15, 2002. Progressive instigated this declaratory judgment action in the Circuit Court of Wayne County against Mullins, Genevieve Lee, We Care Day Care Center, Inc., Nathan Bonner, Nancy Deese, and Jessie Deese, a minor (collectively, We Care). Progressive moved for summary judgment, arguing that an exclusion in the policy defeated coverage. The circuit court found that the exclusion was ambiguous and that coverage existed. The court entered summary judgment in favor of We Care; Progressive appeals.

¶ 2. We find that the exclusion was ambiguous and that, construing the exclusionary language in favor of the insured, coverage existed under the Mullins policy. Therefore, we affirm the grant of summary judgment in favor of We Care.

FACTS

¶ 3. The parties agree that the material facts in this case are undisputed. Bessie Mullins owned a 1993 GMC van insured by Progressive. Genevieve Lee, Mullins's daughter, was a listed driver on Mullins's policy. The policy included bodily injury and property damage liability coverage with limits of $10,000 each person and $20,000 each accident for bodily injury and $10,000 each accident for property damage.

¶ 4. We Care Day Care Center, Inc. provided day care services for the elderly. As a regular part of its operations, We Care provided transportation for its clients to and from the day care facility located in Richton, Mississippi. On or about January 15, 2002, We Care hired Lee to drive We Care's clients. Lee entered into a contract with We Care. The contract stated that Lee was to be paid hourly at minimum wage by We Care for providing transportation services. The evidence established that no mileage reimbursement was contemplated by We Care. Lee received no payment from We Care based on the number of passengers she transported, nor did Lee receive any payment from the passengers themselves. There is no evidence of if or how the passengers whom Lee transported paid We Care for the driving service.

¶ 5. On January 15, 2002, one of We Care's vehicles was in the auto shop for repair and Oma Hibbler, We Care's program director, asked Lee to use Mullins's 1993 GMC van to transport clients.¹ Accordingly, Lee used the GMC van in the course and scope of her employment to drive one of We Care's clients, Eunice Bonner, from Richton, Mississippi to Waynesboro, Mississippi. En route, the GMC van struck a vehicle driven by Nancy Deese in which Jessie Deese, Nancy's minor son, was a passenger. We Care paid Lee, at her hourly wage rate, a total of twenty-eight dollars for the day's work.

¶ 6. Nathan Bonner commenced an action against Mullins, Lee and We Care for the wrongful death of Eunice Bonner from her injuries sustained in the accident. On July 30, 2003, Progressive filed a "Complaint for Declaratory Judgment" against We Care, Lee, Mullins, Bonner, and Nancy and Jessie Deese. We Care counterclaimed, arguing that, under the Mullins policy, Progressive had a duty to defend and indemnify We Care. Nancy Deese, herself and on behalf of Jessie Deese, asserted a counterclaim against Progressive for damages and a cross-claim against We Care, Lee, and Mullins.

¶ 7. In its complaint, Progressive sought a judgment declaring that there was no coverage under the Mullins policy for any claims arising from the January 15, 2002 accident. Progressive relied upon an exclusion from coverage clause in the Mullins policy, which stated that liability coverage did not apply to:

1. bodily injury or property damage arising out of the ownership, maintenance, or use of a vehicle while being used to carry persons or property for compensation or a fee, including, but not limited to, delivery of magazines, newspapers, food, or any other products. This exclusion does not apply to shared-expense car pools;

On February 7, 2005, Progressive filed a motion for summary judgment arguing that, at the time of the accident, Lee was using the insured vehicle to carry a person for compensation or a fee, an activity excluded from coverage under the above clause.

¶ 8. The trial court observed that no Mississippi court has construed the exclusionary clause at issue in this case. After examining two cases construing similar exclusionary language, the trial court found that the language was ambiguous as applied to the facts of this case. The court stated:

There was no fee per person per trip charged to this court's knowledge. There is no real definition of compensation or fee to this court's knowledge. Who is compensating the driver and who is compensating the owner of the day care for the service of the transportation[?] Is the fee for the service included in the day care fee? The court is of the opinion that if the court cannot determine what the terminology of the contract means, then it must be ambiguous. As the court has found that the terminology is ambiguous, then it will be construed in favor of the insured. State Farm Mutual Automobile Ins. Co. v. Scitzs, 394 So.2d 1371, 1372 (Miss.1981).

¶ 9. Progressive appeals, arguing that the exclusionary clause was unambiguous as applied to this case. For the reasons articulated below, we affirm.

STANDARD OF REVIEW

¶ 10. Under Rule 56(c) of the Mississippi Rules of Civil Procedure, a party is entitled to summary judgment if the evidentiary matters before the court, including pleadings, depositions, answers to interrogatories, admissions on file, affidavits, etc., demonstrate that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. This Court reviews the grant or denial of a summary judgment motion de novo. Mass. Bay Ins. Co. v. Joyner, 763 So.2d 877, 878(¶ 5) (Miss.2002).

LAW AND ANALYSIS

I. DID THE TRIAL COURT ERR IN DETERMINING THAT THE EXCLUSIONARY LANGUAGE WAS AMBIGUOUS WHEN APPLIED TO THE UNDISPUTED FACTS OF THIS CASE?

¶ 11. The interpretation of insurance policy language presents a question of law. Lewis v. Allstate Ins. Co., 730 So.2d 65, 68(¶ 12) (Miss.1998). This Court adheres to well-established rules of construction of insurance contracts. State Farm, 394 So.2d at 1372. We read the policy as a whole, considering all the relevant portions together and, "whenever possible, should give operable effect to every provision in order to reach a reasonable overall result." J & W Foods Corp. v. State Farm Mut. Auto. Ins. Co., 723 So.2d 550, 552(¶ 8) (Miss.1998). The policy is construed most strongly against the insurer as the drafter of the policy. State Farm, 394 So.2d at 1372; J & W Foods, 723 So.2d at 552(¶ 8). Like other contracts, when an insurance contract is plain and unambiguous, it will be enforced as written. State Farm, 394 So.2d at 1372. Ambiguity is present when policy language is susceptible of two or more reasonable interpretations. Miss. Farm Bureau Cas. Ins. v. Britt, 826 So.2d 1261, 1265(¶ 14) (Miss.2002). In the case of ambiguity, this Court will apply the interpretation favoring the insured, and will determine the intent of the parties to the insurance contract with reference to what a reasonable person in the insured's position would have understood the terms to mean. J & W Foods, 723 So.2d at 552(¶ 9). When interpreting ambiguous policy language, we will give the words their plain, ordinary, and popular meaning, not a philosophical or scientific meaning. Blackledge v. Omega Ins. Co., 740 So.2d 295, 298(¶ 7) (Miss.1999). When "there is no practical difficulty in making the language of an insurance contract free from doubt, any doubtful provision in the policy should be construed against the insurer." State Farm, 394 So.2d at 1372. Nonetheless, where the policy is free from ambiguity, this Court will not adopt a strained interpretation of the policy for the purpose of preventing hardship to the insured. Titan Indem. Co. v. Estes, 825 So.2d 651, 656 (¶¶ 17-18) (Miss.2002).

¶ 12. Additional considerations are implicated when we are confronted with exclusions and limitations to coverage. Our supreme court has pronounced that, while clear and unambiguous policy language will be enforced according to its terms, "recovery cannot be limited by an insurer for benefits for which a premium is paid by an insured, notwithstanding clear and unambiguous language of attempted limitation by the insurer." Gov't Employees Ins. Co. v. Brown, 446 So.2d 1002, 1006 (Miss.1984). Clauses in a policy seeking to limit coverage "must be written in clear and unmistakable language" and are strictly construed. Miss. Farm Bureau Mut. Ins. Co. v. Jones, 754 So.2d 1203, 1204(¶ 8) (Miss.2000). But, when stated without uncertainty or ambiguity, exclusionary language is binding upon the insured. Lewis v. Allstate Ins. Co., 730 So.2d 65, 70(¶ 25) (Miss.1998).

¶ 13. Progressive contends that the "carrying persons for compensation or a fee" exclusion in the Mullins policy was free from ambiguity. Progressive argues that the January 15, 2002 accident was specifically excluded from liability coverage because the accident occurred while Lee was using the van to carry a person, Bonner, "for compensation or a fee" in the form of Lee's wages from We Care. We Care argues that the exclusion was ambiguous because it could signify that there is no...