Whitaker v. T & M Foods, Ltd.


<- Return to Search Results


Docket Number: 2006-CA-01365-COA
Linked Case(s): 2006-CA-01365-COA ; 2006-CT-01365-SCT ; 2006-CT-01365-SCT ; 2006-CT-01365-SCT

Court of Appeals: Opinion Link
Opinion Date: 09-25-2007
Opinion Author: KING, C.J.
Holding: Affirmed

Additional Case Information: Topic: Personal injury - M.R.C.P. 60(b) - Applicability of Contracts Clause - Applicability of J&J Timber - Dismissal of defendant - Motion to amend - M.R.C.P. 15(a)
Judge(s) Concurring: LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ.
Non Participating Judge(s): CHANDLER AND BARNES, JJ.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - PERSONAL INJURY

Trial Court: Date of Trial Judgment: 05-26-2006
Appealed from: LEE COUNTY CIRCUIT COURT
Judge: Paul S. Funderburk
Disposition: MOTION FOR SUMMARY JUDGMENT GRANTED.
Case Number: 01-039(G)L

Note: Miss SCT reversed and remanded this COA judgment. See SCT opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO50446.pdf

  Party Name: Attorney Name:  
Appellant: DIMPLE G. WHITAKER AND CLYDE WHITAKER




JIM WAIDE D. KIRK THARP RICHARD SHANE MCLAUGHLIN W. BRENT MCBRIDE



 

Appellee: T & M FOODS, LTD. AND ROBERT Y. KENT JAMES H. HEIDELBERG JESSICA MARIE DUPONT  

Synopsis provided by:

If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals
hand downs please contact Tammy Upton in the MLI Press office.

Topic: Personal injury - M.R.C.P. 60(b) - Applicability of Contracts Clause - Applicability of J&J Timber - Dismissal of defendant - Motion to amend - M.R.C.P. 15(a)

Summary of the Facts: Robert Kent was working as a delivery driver for T&M Foods, which operated a Steak-Out franchise, when he rear-ended the car of Dimple and Clyde Whitaker. As a result of the accident, Mrs. Whitaker sustained some injuries and incurred medical expenses in the amount of $881.06. Kent’s insurer, Progressive, obtained a release from the Whitakers. In exchange for the release, the Whitakers received a payment for $1381.06 for reimbursement of Mrs. Whitaker’s medical expenses. Several months after the accident and after the Whitakers signed the release with Progressive, Mrs. Whitaker began experiencing pain. She was diagnosed with temporalmandibular joint pain syndrome. Her physician cited the automobile accident as the cause of the problem. The Whitakers filed suit against Progressive, Kent, and T&M Foods. Kent and T&M Foods contended that the release operated to release them both from liability. Thereafter, Progressive entered into a second release with the Whitakers. In exchange for an additional payment of $8608.05, which exhausted the $10,000 policy limits on Kent’s insurance policy with Progressive, the Whitakers agreed to release Progressive. The trial court signed an order dismissing Progressive with prejudice. Kent and T&M Foods filed a motion for summary judgment. The trial court denied the motion for summary judgment in part but granted the motion with respect to the agreement not to execute on Kent’s personal assets. The trial court also granted a motion for default judgment against Kent because he failed to appear for his deposition. T&M Foods filed a Rule 60(b) motion for relief, asking the trial court to reconsider its decision to deny summary judgment on the grounds that a new Mississippi Supreme case, J&J Timber Co. v. Broome, 932 So. 2d 1 (Miss. 2006), had changed the law on vicarious liability and the release of the tortfeasor so that the release of the tortfeasor acted to release the employer as well. The judge granted the motion, relieving T&M Foods of the summary judgment order previously entered and stating that T&M Foods and Kent were entitled to Judgment as a matter of law. The Whitakers appeal.

Summary of Opinion Analysis: Issue 1: Applicability of Contracts Clause The Whitakers argue that J&J Timber should not be applied retroactively because a retroactive application would interfere with the release contract between Progressive and the Whitakers and would, therefore, violate the Contracts Clause of the Mississippi Constitution. In order for a party to invoke this provision of the Mississippi Constitution, the contract at issue must have been made under the authority of a statute that affects the ability of the parties to enforce the contract, either because the statute has been amended or repealed. In other words, the Mississippi Constitution prohibits the states from passing laws which impair the obligations of contracts. In this case, the Whitakers did not rely on any statutory authority when they entered into the contract with Progressive. Accordingly, the contracts clause of the Mississippi Constitution is not applicable. Issue 2: Applicability of J&J Timber In J&J Timber, the Court held that an action against an employer based on the doctrine of respondeat superior is a derivative claim arising solely out of the negligent conduct of its employee within the scope of his or her employment. Once the claim against the sole tortfeasor is settled, the vicarious liability claim becomes barred because the vicarious liability claim itself is extinguished when the solely negligent employee is released. There can be no assessment of damages against the employer when no action can be brought against the only negligent party – the employee. The Whitakers argue that they did not release Kent but simply agreed not to seek execution for a judgment against Kent’s personal assets. While the third and fourth paragraphs of the release purport to release Progressive only, and not Robert Kent, the language of the fifth paragraph clearly indicates that, for all intents and purposes, the Whitakers did not intend to pursue any claims against Kent personally. The language of the release clearly indicates that Kent is intended to remain in the litigation for the sole purpose of the Whitakers’ pursuit of T&M Foods. Kent was covered only by the Progressive policy; therefore, the Whitakers could not collect damages from any other source in order to satisfy a judgment against Kent. Accordingly, the Whitakers effectively released Kent when they agreed not to execute on his personal assets because there were no other damages to be recovered. T&M Foods argues that, in the event the Whitakers successfully obtained a judgment against T&M Foods, T&M Foods would exercise its common law right of indemnity against Kent, which would include a judgment against Kent’s personal assets. Kent would then seek to enforce the clause in the release in which the Whitakers agreed to hold Progressive and the personal assets of Robert Kent harmless from any claim that may be asserted against them by way of subrogation, assignment, lien or otherwise. The Whitakers would be obligated to reimburse Kent, who would, in turn, reimburse T&M Foods. As in J&J Timber, the plaintiffs would pay their own judgment. Given these reasons, the trial court acted properly in granting T&M Foods’ Rule 60(b) motion for relief from the denial of summary judgment. Issue 3: Dismissal of defendant The Whitakers argue that the court erred in dismissing Kent in the order granting T&M Foods’ Rule 60(b) motion for relief from the denial of summary judgment, because the trial court already had entered a default judgment against Kent and could not enter an order granting Kent judgment as a matter of law unless Kent requested that relief pursuant to Rule 60(b). Although the trial court erred procedurally in noting Kent’s dismissal from the case via the order granting T&M Foods’ Rule 60(b) motion, the reality of the case is that Kent was dismissed from the case by the Whitakers’ own actions. Accordingly, the trial court did not err in dismissing Kent as a matter of law. Issue 4: Motion to amend The Whitakers argue that the court erred in failing to permit them to amend their complaint. Following the court’s decision on the Rule 60(b) motion, which applied the recent J&J Timber decision, the Whitakers sought to set aside the second release in their proposed second amended complaint, citing a mutual mistake of the law. Under M.R.C.P. 15(a), a key factor to be considered in granting leave to amend in the interests of justice is prejudice to the opposing party and the court will ordinarily refuse to grant such permission where the motion comes so late and in such circumstances that the right of the adverse party will necessarily be prejudicially affected. In this case, had the trial court granted the Whitakers leave to amend, the rights of all the defendants would be prejudicially affected. In particular, Progressive, who had been dismissed as a result of the settlement agreement, would have been most prejudicially affected.


Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court