Sturkin v. Miss. Ass'n of Supervisors, Inc.

• Decision Date: 24 November 2020
• Docket Number: NO. 2019-CA-01512-COA,2019-CA-01512-COA
• Citation: 315 So.3d 521
• Parties: Donna STURKIN and Vicky Patrick, Appellants v. MISSISSIPPI ASSOCIATION OF SUPERVISORS, INC., Appellee
• Court: Mississippi Court of Appeals

315 So.3d 521

Donna STURKIN and Vicky Patrick, Appellants

v.MISSISSIPPI ASSOCIATION OF SUPERVISORS, INC., Appellee

NO. 2019-CA-01512-COA

Court of Appeals of Mississippi.

November 24, 2020

Rehearing Denied April 20, 2021

ATTORNEYS FOR APPELLANTS: STEVEN CRAIG PANTER, RONALD EARL STUTZMAN JR., Flowood, OTTOWA E. CARTER JR.

ATTORNEYS FOR APPELLEE: WILLIAM ROBERT ALLEN, KATELYN ADELE RILEY, Brookhaven

BEFORE CARLTON, P.J., McDONALD AND McCARTY, JJ.

McDONALD, J., FOR THE COURT:

¶1. Donna Sturkin and Vicky Patrick appeal from the Scott County Circuit Court's summary judgment ruling that their claims for defense and indemnification were not covered under a liability insurance policy that Patrick's employer, Leake County, Mississippi, had purchased from the Mississippi Association of Supervisors Inc. (MAS). That policy, covering not only the county itself, but also county employees, included a duty by MAS to defend them when sued and the duty to indemnify them for any judgment rendered against them. However, MAS withdrew its defense of Patrick in a federal lawsuit brought against her by Sturkin for a violation of Sturkin's civil rights. MAS also refused to pay the $350,000 judgment that Sturkin obtained in that action. Instead, MAS filed a declaratory-judgment action in the Circuit Court of Scott County, Mississippi, and ultimately sought summary judgment on the issues of its duty to defend and indemnify Patrick. The circuit court granted MAS's motion, finding that Sturkin's claim was not covered by the policy. Sturkin and Patrick appealed.

¶2. After reviewing the terms of policy, arguments of counsel, and relevant caselaw, we find that the policy exclusions do not apply to Sturkin's claim, but because there are material facts in dispute as to whether Patrick was acting in the scope of her employment, MAS is not entitled to summary judgment; therefore, the issue is remanded for resolution by a trier of fact. Finally, because Sturkin's federal complaint pleaded claims that were arguably covered by the policy, MAS has a duty to defend Patrick.

Facts and Procedural History

A. Underlying Facts

¶3. On November 15, 2010, Donna Sturkin ("Sturkin"), a resident of Scott County, Mississippi, entered the Eighth Judicial District Drug Court ("Drug Court") program.

¶4. The Drug Court in Leake, Scott, Newton and Neshoba counties was the fourth to be established in the state. In April 2003, legislation was passed creating Drug Courts statewide. See Miss. Code Ann. §§ 9-23-1 to -23 (Rev. 2018 & Supp. 2019). A Drug Court is considered a hybrid specialized or diversion court that handles drug crimes or crimes that are considered "drug driven" (to include DUI and probation violations). Its purpose is "to reduce the incidence of alcohol and drug use, alcohol and drug addiction, and crimes committed as a result of alcohol and drug use and alcohol and drug addiction." Miss. Code Ann. § 9-23-3(1).

¶5. A typical Drug Court participant is placed on probation and must adhere to stringent requirements, including periodic drug and alcohol testing. Miss. Code Ann.§ 9-23-15(3)(a). Participants are monitored by probation officers specifically assigned to the Drug Court. Pursuant to Mississippi Code Annotated section 9-23-23, "[i]f the participant completes all requirements imposed upon him by the [drug] court, including the payment of fines and fees assessed and not waived by the court, the charge and prosecution shall be dismissed." Individuals failing to meet the Drug Court requirements are sentenced to the maximum amount of time for their particular crime and ordered into the custody of the Mississippi Department of Corrections.

¶6. Sturkin's probation officer was Vicky Patrick ("Patrick"), a deputy sheriff, who was hired in 2005. Pursuant to her contract, Patrick was an employee of Leake County, Mississippi.

¶7. While participating in the Drug Court program, Sturkin underwent regular testing for drugs and alcohol and attended periodic court appearances. As Sturkin's probation officer, Patrick conducted home checks, ensured that Sturkin (and the other probationers) maintained gainful employment, collected urine samples for the random drug and alcohol tests, and reported failures to the Drug Court judge.¹

¶8. While serving as her probation officer, Patrick frequently made improper demands of Sturkin. These demands included allowing Patrick to steal goods from the store at which Sturkin worked and providing Patrick, as well as her friends and family, with hotel rooms for free at the hotel where Sturkin was employed. Patrick threatened Sturkin that her failure to meet these demands would result in her incarceration.

¶9. During the time Patrick made these demands, Sturkin reported Patrick's behavior to Marcus Ellis Jr. ("Ellis"), the coordinator of the Drug Court and Patrick's supervisor. Sturkin said that Ellis told her to take up any problems she had with Patrick herself. In a later affidavit, Ellis stated that he did not have a specific recollection of the conversation with Sturkin; however, he candidly stated that what Sturkin said was exactly how he would have responded at that point in time.

¶10. On several occasions, after Sturkin failed to comply with Patrick's demands, Patrick reported to the circuit court judge that Sturkin had tested positive for alcohol consumption. As a result, Sturkin was incarcerated.

¶11. Sturkin's sister, Kathy Marler, also called the Drug Court in an attempt to tell Ellis what Patrick was demanding of Sturkin. However, Marler was not allowed to speak with Ellis. Shortly thereafter, Patrick called Sturkin at the jail and told her that if her family continued to call the Drug Court, Sturkin's sentence would be extended for every phone call that was received.

¶12. Patrick was fired from the Drug Court on September 30, 2013, for misconduct apparently unrelated to the incidents in dispute in this action. When Sturkin learned of Patrick's termination, she again went to speak to Ellis to discuss her experience with Patrick. After investigating her claims, Ellis found that Sturkin's allegations regarding Patrick's inappropriate demands were true. Ellis also informed Sturkin that she had not failed any of her alcohol consumption tests.

¶13. On August 1, 2014, Sturkin completed the Drug Court program.

B. Sturkin's Federal Lawsuit

¶14. On June 9, 2016, Sturkin sued Patrick, Ellis, Leake County, and others² in the United States District Court for the Southern District of Mississippi, Cause Number 3:16-CV-434-CWR-FKB. In her complaint, Sturkin alleged that Patrick had subjected her to regular and repeated harassment, coercion, punishment, and incarceration as a result of false reporting. Sturkin alleged that her civil rights under the Fourth and Fifth Amendments to the United States Constitution were violated by Patrick and Ellis, who had acted under color of law and in the scope of their employment.³

¶15. At the time of the alleged incidents, the parties agree that Patrick was insured under a general liability policy ("the Coverage Document"), which Leake County had purchased from MAS. The Coverage Document contained numerous provisions that detailed its general liability coverage and the exclusions to coverage.

¶16. On April 13, 2017, MAS notified Patrick that it would defend her in Sturkin's federal lawsuit, but it was reserving the right to later decline to defend or deny coverage under the Coverage Document. Later, on January 31, 2018, MAS notified Patrick's attorney that it was denying payment of her defense or any indemnity based on the fact that the allegations against Patrick asserted intentional wrongdoing on Patrick's part.⁴ Thereafter, Patrick was compelled to hire her own attorney at her own expense.

C. State Court Declaratory Judgment Action

¶17. While Sturkin's federal suit against Patrick was pending, on January 22, 2018, MAS filed a declaratory judgment action against Patrick in the Circuit Court of Scott County, Mississippi, which is the subject of this appeal. MAS requested the circuit court to rule that Sturkin's claim was not covered under the policy and that MAS owed Patrick no defense. Patrick denied MAS's allegations. Sturkin was granted intervention pursuant to Rule 24(a)(2) of the Mississippi Rules of Civil Procedure. Sturkin filed a counterclaim seeking an order finding that her claim was covered by the policy and that MAS should pay any damages awarded because of it. Sturkin also demanded a jury trial on the issues. Patrick later amended her answer to include a counter-claim against MAS for, among other things, tortious breach of contract. She too asked for trial by jury.

¶18. On January 8, 2019, MAS filed a motion for summary judgment in the state court declaratory judgment action. MAS argued that it did not have a duty to indemnify nor defend Patrick because her alleged acts were intentional and undertaken outside the course and scope of her employment. MAS also argued that even if Patrick's acts were within the scope of her employment, any damages she may have caused were excluded from coverage by way of several policy exclusions. MAS conceded in its motion for summary judgment that Patrick was in fact a covered employee in general, but it contested coverage for her actions in this case.

¶19. Sturkin replied to MAS's motion for summary judgment and argued that her claim of a civil rights violation was covered by the policy. Further, she argued that Patrick's actions were in fact committed within the scope of her employment or, in the alternative, that there were facts in dispute concerning this issue that a jury should resolve. Further, even if the court found that Patrick's actions were not within the scope of her employment, Sturkin argued they were incidental or of a similar kind to the acts Patrick routinely performed in her employment or that Ellis had ratified them. Patrick also responded to MAS's motion, presenting arguments similar to Sturkin's but also pointing out that the duty to defend is broader than the...