U.S. Fidelity and Guaranty Co. v. Pearthree, 52125

• Decision Date: 24 September 1980
• Docket Number: No. 52125,52125
• Citation: 389 So.2d 109
• Parties: UNITED STATES FIDELITY AND GUARANTY COMPANY and Hartford Accident and Indemnity Company v. Dianne Simmons PEARTHREE.
• Court: Mississippi Supreme Court

Page 109

389 So.2d 109

UNITED STATES FIDELITY AND GUARANTY COMPANY and Hartford Accident and Indemnity Company v. Dianne Simmons PEARTHREE.

No. 52125.

Supreme Court of Mississippi.

Sept. 24, 1980.

Rehearing Denied Oct. 29, 1980.

B. L. Riddick, Riddick & Carpenter, Jackson, Joe Clay Hamilton, Hamilton & Williamson, Meridian, for appellants.

David A. Stephenson, Sandusky, Bailey, Fortenberry & Stephenson, Meridian, for appellee.

Before PATTERSON, C. J., and BROOM and LEE, JJ.

BROOM, Justice, for the Court:

Stacking uninsured motorist coverage and awarding damages to Dianne Simmons Pearthree on account of the death of her mother who was survived by her husband and by other siblings are the salient features of this case, appealed from the Chancery Court of Lauderdale County. Originally filed in county court, the action was upon motion transferred to chancery court. Appellants USF&G Co. and Hartford Accident & Indemnity Co. contend (1) that appellee cannot be allowed to recover damages except those which she alone is entitled to recover, and (2) that the damages awarded are excessive.

The deceased, Mrs. Patricia Ann Shumate, a passenger in an automobile driven by James Fannin, was killed in an automobile accident on November 14, 1974. Fannin (also killed in the accident) owned the car which had uninsured motorist coverage on two automobiles under his policy with Hartford. Mrs. Shumate's husband, Edwin Earl Shumate, Sr., also had uninsured motorist coverage on two automobiles under his policy with USF&G. The negligent party liable for the accident was Fred M. Lofton, an uninsured motorist. Previously this case was before us, and we held: (1) the two policies may be aggregated and stacked so that the policies would be interpreted to provide coverage on each policy at $20,000 per person or $40,000 per accident even though each policy on its face contained limits of $10,000/20,000; (2) Mrs. Pearthree's recovery is not "limited to 20% of the total amount payable . . . the policies mention no percentage limitation"; and (3) Mrs. Pearthree, under the USF&G and Hartford policies, is an "insured." Pearthree v. Hartford Accident & Indemnity Co. and U.S.F.&G. Co., 373 So.2d 267 (Miss.1979). We remanded, and the lower court then awarded (without either litigant presenting additional testimony) appellee $30,000 damages and ordered Hartford and USF&G each to pay the sum of $15,000 which they contend was error.

By way of cross appeal, appellee Pearthree contends she should have been awarded $40,000 plus 6% interest from date she notified Hartford and USF&G of her claim. In her action, she sought $40,000 ($20,000 against Hartford and a like amount against USF&G). The parties stipulated that $12,000 had already been paid on account of Patricia Simmons Shumate's death, but Pearthree still demands $40,000 as being owed under the two policies. Of the $12,000 previously paid on account of Mrs. Shumate's death under the policies, USF&G had in good faith paid $10,000 in settlement of the claims of Mrs. Shumate's three other children and her husband Edwin Shumate, Sr. ¹ Hartford paid $100 for a covenant binding Edwin Shumate, Sr. and minors Barbara Ellen Shumate and Edwin Earl Shumte, Jr. not to sue as a result of the death of Mrs. Shumate. Pyramid Life Insurance Company (not a party to this suit) settled with the Shumate family for $2,000. Counting $19,900 Hartford paid the Fannin family, and the $100 it paid Edwin Shumate, Sr., Hartford paid out $20,000 on account of the accident. USF&G paid out $10,000. The decree in the present appeal is silent as to whether the $30,000 award was in any way related to or based upon any consideration of the prior settlements. No clear indication appears in the decree as to what damages were personally awarded to Mrs. Pearthree inasmuch as the chancellor stated damages were as if the suit were for:

(C)omplainant's own benefit and for all other wrongful death beneficiaries, leaving the ultimate question as to the disposition of any judgment rendered herein as between complainant and the other beneficiaries under the wrongful death statute as did the decision of the Supreme Court.

Appellee Pearthree is the only party plaintiff to the suit-no other wrongful death beneficiaries are parties.

Argument is made that the special chancellor erred in finding that the appellee was entitled to recover all damages which she would have been entitled to recover as if this action were brought for the complainant's own benefit and for all other wrongful death beneficiaries under the Mississippi Wrongful Death Statute.

In Pearthree, supra, we held that:

Focusing upon the words "damages he (sic) is entitled to recover" in subdivision (3) of the Hartford policy and subdivision (c) of the USF&G policy, it is obvious the reference is to the same right arising under the applicable law of torts. Because the appellant would, under Mississippi Code Annotated Section 11-7-13 (1972) be "entitled" to maintain a wrongful death action for the death of her insured mother, it is beyond cavil, we think, that she too is an "insured" within the meaning of the Hartford and USF&G policies.

(At 271).

When Pearthree, supra, was previously before us, we held that "because" Mrs. Pearthree, under Mississippi Code Annotated § 11-7-13 (1972), was entitled to maintain a wrongful death action for her mother's (Mrs. Shumate's) death, she is an insured "within the meaning of the Hartford and USF&G policies." 373 So.2d at 271. We did not hold that Mrs. Pearthree on the pleadings as cast should be awarded all damages which she would have been entitled to receive as if her suit were not only for her own benefit but also for all other wrongful beneficiaries under § 11-7-13, supra. Our opinion by Patterson, C. J., stated her recovery as an insured under the two policies is limited:

(T)o the extent of the aggregated per person limits, assuming her damages reach those limits.

(At 272).

Mrs. Pearthree's suit (as conceded in her brief) did not present a wrongful death action; her language describes her action as a claim which "arises under the uninsured portion" of the policies. Having made no effort to bring this action for the benefit of the other beneficiaries, under our decisional law her claim cannot include issues not raised by the pleadings. Seymore v. Greater Mississippi Life Insurance Company, 362 So.2d 611 (Miss.1978). From the record, it is unclear why the lower court held that the damages were for the claimant Mrs. Pearthree and "for all other wrongful death beneficiaries."

In Point II of Hartford's appellant brief assertion is made that Mrs. Pearthree's claim is limited by the pleadings and the proof to her claim as one of five beneficiaries, and further limited to the present value of any pecuniary advantages which the evidence shows that she had a reasonable expectation of receiving from the...