Titan Indemnity Co. v. Pope


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Docket Number: 2002-CA-01112-COA
Oral Argument: 02-03-2004
 

 

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Court of Appeals: Opinion Date: 06-29-2004
Opinion Author: BRIDGES, P.J.
Holding: Affirmed in part; Reversed and Rendered in part

Additional Case Information: Topic: Personal injury - Insurance policy - Non-cumulation clause - Severable policies - Reservation of rights
Judge(s) Concurring: KING, C.J., SOUTHWICK, P.J., LEE, MYERS, CHANDLER AND GRIFFIS, JJ.
Non Participating Judge(s): THOMAS, J.
Concurs in Result Only: IRVING, J.
Procedural History: Bench Trial
Nature of the Case: Negligence

Trial Court: Date of Trial Judgment: 04-29-2002
Appealed from: Attala County Circuit Court
Judge: Clarence E. Morgan, III
Disposition: VERDICT IN FAVOR OF POPE AGAINST ATTALA COUNTY AND ITS INSURER FOR $1,000,000.

  Party Name: Attorney Name:  
Appellant: TITAN INDEMNITY COMPANY, ATTALA COUNTY, MISSISSIPPI, THE BOARD OF SUPERVISORS OF ATTALA COUNTY, MISSISSIPPI, TROY HODGES, EDDIE WOMBLE, CHARLES P. FANCHER, DEWITT ADCOCK, H. WADE SHUMAKER, AND BOBBY LEWIS, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES WITH ATTALA COUNTY, MISSISSIPPI




KATHERINE S. KERBY BENJAMIN E. GRIFFITH TOMMIE SULLIVAN CARDIN DANIEL JUDSON GRIFFITH



 

Appellee: ERIC SCOTT POPE, INDIVIDUALLY AND BY VIVIAN RASPBERRY, HIS NATURAL MOTHER AND ADULT NEXT FRIEND MICHAEL S. ALLRED OTTOWA E. CARTER KATHLEEN H. EILER  

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Topic: Personal injury - Insurance policy - Non-cumulation clause - Severable policies - Reservation of rights

Summary of the Facts: Eric Pope filed an action for negligence against Attala County and Titan Indemnity Company for injuries he sustained when the car in which he was a passenger hit a trailer carrying a backhoe used and parked by an Attala County road crew. The County waived its sovereign immunity to the extent it had liability coverage through Titan. Titian was denied a motion for summary judgment and Pope was allowed to enforce his claims under two separate sections of Attala County's policy both which had a limit of $500,000. After a bench trial, Pope was found to have $2,848,000 in compensatory damages and was granted $1,000,000 in recoverable damages. Titian and Attala County appeal, and Pope cross-appeals.

Summary of Opinion Analysis: Issue 1: Non-cumulation clause Pope requested in his motion for summary judgment that the court find the sub-parts of the policy issued to the County severable, which the court did. The court also ruled that the commercial auto policy and the commercial general liability policy were the only sub-parts applicable to Pope’s claim. Titan asserted potential liability under the commercial general liability policy but argues that the non-cumulation clause prevented Pope from recovering under both sub-parts. In Titan Indemnity Company v. Estes, 825 So.2d 651, 656 (Miss. 2002), the Mississippi Supreme Court held that the non-cumulation clause of the auto policy and the auto exclusion in the CGL policy were not ambiguous and did not allow a strained interpretation. After the Mississippi Supreme Court found the policy sub-parts unambiguous, it interpreted them together with the following findings: the CGL policy sub-part’s auto exclusion prohibited coverage; and the bodily injury exclusion prohibits coverage under the public official’s sub-part, since coverage under the CGL policy and public official’s sub-parts were categorically excluded and could not be considered excess. Therefore, the anti-cumulation clause of the auto sub-part applied and did not allow recovery under either the public official sub-part or the CGL policy sub-part. Titan, based on Pope's allegations, determined it had a duty to defend Attala County under both the auto policy and CGL policy. However, the record does not reveal that Titan acknowledged that it had a duty to indemnify Attala County under the CGL policy. Titan therefore acknowledged potential liability under the CGL policy but did not acknowledge coverage. The language of the auto exclusion is clear and unambiguous and forecloses coverage under the CGL policy. Since the auto exclusion precludes coverage under the CGL policy, the CGL policy is not excess insurance and no recovery should have been allowed under the CGL policy. The decision of the court allowing coverage under both sub-parts for a total recovery of $1,000,000 was erroneous. Issue 2: Severable policies The court ruled in summary judgment that the sub-parts of the policy Attala County had with Titan were severable rather than entire, and Pope argues that this was error. A schedule policy insuring various items and fixing the amount of insurance to be paid on each, is separable, although the premium is fixed as an entirety. Here, the sub-parts had individually calculated premiums which all fell under the same policy number for a total amount of premiums due to Titan by Attala County. These itemized premiums created consideration for separate contracts, and thus each is a severable policy. Issue 3: Reservation of rights Pope argues that Titan lacked the right to object to coverage under the multiple sub-parts since it defended Attala County without a reservation of rights. Titan consistently acknowledged that potential coverage and a duty to defend exists under the Commercial Auto policy and the Commercial General Liability policy issued to Attala County Defendants. Therefore, it is clear that Titan intended to defend without a reservation of rights on only those two sub-parts of the policy and was later found obligated to pay under those policies. Titan never waived its rights regarding the other policy sub-parts and, therefore, is not prohibited from asserting a defense against coverage under those policies.


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