Progressive Gulf Ins. Co. v. We Care Day Care Center, Inc., et al.
| Docket Number: | 2005-CA-00905-COA Linked Case(s): 2005-CA-00905-COA |
|
| Court of Appeals: |
Opinion Link Opinion Date: 10-10-2006 Opinion Author: CHANDLER, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Insurance - Exclusion from coverage clause - Carrying persons for compensation or fee Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, GRIFFIS, BARNES AND ISHEE, JJ. Non Participating Judge(s): ROBERTS, J. Procedural History: Summary Judgment Nature of the Case: CIVIL - INSURANCE |
|
| Trial Court: |
Date of Trial Judgment: 04-21-2005 Appealed from: WAYNE COUNTY CIRCUIT COURT Judge: Robert Bailey Disposition: SUMMARY JUDGMENT ENTERED FOR THE DEFENDANTS. Case Number: CV-2003-134(B) |
|
| Party Name: | Attorney Name: | |||
| Appellant: | PROGRESSIVE GULF INSURANCE COMPANY |
CHARLES CAMERON AUERSWALD,
RICHARD L. KIMMEL, STEVEN CAVITT COOKSTON |
||
| Appellee: | WE CARE DAY CARE CENTER, INC., NATHAN A. BONNER, NANCY G. DEESE AND JESSIE DEESE, A MINOR | ROBIN L. ROBERTS, BRANDON L. BROOKS, CHARLES MARTIN LEGGETT |
|
|
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: | Insurance - Exclusion from coverage clause - Carrying persons for compensation or fee |
| Summary of the Facts: | Bessie Mullins owned a 1993 GMC van insured by Progressive Gulf Insurance Company. Genevieve Lee, Mullins' daughter, was a listed driver on the 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. We Care Day Care Center, Inc., a day care for the elderly, provided transportation for its clients to and from the day care facility located in Richton. We Care hired Lee to drive We Care's clients. While one of We Care's vehicles was in the auto shop for repair, Oma Hibbler, We Care's program director, asked Lee to use Mullins' van to transport clients. While using the van to drive one of We Care's clients, Eunice Bonner, from Richton to Waynesboro, Lee struck a vehicle driven by Nancy Deese in which Jessie Deese, Nancy's minor son, was a passenger. 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. 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. Progressive filed a motion for summary judgment. The court entered summary judgment in favor of We Care, and Progressive appeals. |
| Summary of Opinion Analysis: | Progressive relied upon an exclusion from coverage clause in the Mullins policy, which stated that liability coverage did not apply to “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.” 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. Clauses in a policy seeking to limit coverage must be written in clear and unmistakable language and are strictly construed. But, when stated without uncertainty or ambiguity, exclusionary language is binding upon the insured. Progressive argues that the "carrying persons for compensation or a fee" exclusion in the Mullins policy was free from ambiguity and that the 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. No Mississippi court has construed the "used to carry persons or property for compensation or a fee" exclusion. Lee was paid an hourly wage for driving We Care's clients. She did not receive a mileage reimbursement. We Care's clients did not pay anything for the transportation. Nor was Lee paid by We Care on a per-client or a per-trip basis. As Progressive argues, one definition of the word "compensation" is "payment or remuneration." Adopting this definition favoring Progressive arguendo, the exclusion would bar from coverage the use of the vehicle to carry a person for payment or remuneration. However, an ambiguity still exists because it is unclear what acts constitute using a vehicle to carry persons "for" payment or remuneration. If "compensation" signifies payment or remuneration, the question remains whether the exclusion for "use of a vehicle to carry persons or property for compensation or a fee" encompasses any situation where money is paid to the insured in connection with transporting a person, or is intended to capture only those situations where money is paid by the passenger on a per-trip basis. In a case like this one, an employee transporting a person while receiving an hourly wage would have no coverage if the clause were read to exclude the use of the vehicle to transport a person anytime the employee earns wages while making the trip. But, the employee would have coverage if "used to carry persons or property for compensation or a fee" were read more narrowly to exclude only those situations where compensation was paid on a per-trip basis. Both of these meanings of "used to carry persons for compensation or a fee" are equally reasonable from the standpoint of the insured; therefore, the exclusion is ambiguous. Since the exclusion is ambiguous, the exclusion is given the meaning favorable to the insured, We Care. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
