Whitaker v. T & M Foods, Ltd.
| Docket Number: | 2006-CT-01365-SCT Linked Case(s): 2006-CA-01365-COA ; 2006-CA-01365-COA ; 2006-CT-01365-SCT ; 2006-CT-01365-SCT |
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| Supreme Court: |
Opinion Date: 10-02-2008 Opinion Author: Randolph, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Personal injury - Employer’s insurance policy - Vicarious liability - Release of employee - Retroactive application of decision Judge(s) Concurring: Smith, C.J., Waller, P.J., Dickinson and Lamar, JJ. Judge(s) Concurring Separately: Dickinson, J. (With Separate Written Opinion) Joined in Part by Waller, P.J., Randolph and Lamar, JJ. Non Participating Judge(s): Easley and Carlson, JJ. Concurs in Result Only: Diaz, P.J., and Graves, J. Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 05-26-2006 Appealed from: Lee County Circuit Court Judge: Paul S. Funderburk Case Number: 01-039(G)L |
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| Note: | This opinion was later substituted on 4/16/2009 by the Supreme Court. See the new opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO50446.pdf | |
| Party Name: | Attorney Name: | |||
| Appellant: | Dimple G. Whitaker and Clyde Whitaker |
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| Appellee: | T & M Foods, Ltd. and Robert Y. Kent |
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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. |
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| Topic: | Personal injury - Employer’s insurance policy - Vicarious liability - Release of employee - Retroactive application of decision |
| Summary of the Facts: | While working in the course and scope of his employment as a delivery driver for T&M Foods, Robert Kent was involved in an automobile accident with the vehicle of Dimple and Clyde Whitaker. Approximately one week after the accident, a representative of Progressive Gulf Insurance, Kent’s liability insurer, contacted the Whitakers regarding settlement. The Whitakers signed a “Full Release of All Claims with Indemnity” providing that in exchange for $1,391.95 from Progressive, they would release and forever discharge Kent and Progressive of any and all claims and causes of actions. Soon thereafter, Mrs. Whitaker was diagnosed with temporomandibular joint pain syndrome. Her physician identified the automobile accident as a contributing factor to the condition. The Whitakers filed a complaint against Progressive, Kent, and Steak-Out Franchising, Inc., seeking a declaratory judgment invalidating the Release by alleging mutual mistake. The complaint also alleged negligent or intentional misrepresentation by the Progressive agent. Thereafter, a separate “Settlement Agreement and Release” was signed. In addition to voiding the earlier Release, Progressive paid an additional $8,608.05 to the Whitakers in consideration for the release and discharge of all claims and causes of action they have against Progressive arising out of the automobile accident. The Whitakers expressly reserved all rights to proceed against any party except Progressive and except personal assets of Kent. The circuit court entered an order dismissing Progressive with prejudice. T&M Foods, Kent’s employer, was the “Named Insured” on a “Non-Owned Automobile Liability Insurance” policy with Evanston Insurance Company covering a total of ten drivers. Kent and T&M Foods filed a motion for summary judgment. The circuit court denied the motion except as to the personal assets of Kent. The circuit court also granted the Whitakers’ motion for default judgment against Kent. On the day of trial, T&M Foods filed a Rule 60(b) Motion for Relief from Judgment or Order. The court granted the motion, finding that the release of Kent under either release bars all claims of vicarious liability by the plaintiff’s against Kent’s employer, T&M Foods. The Whitakers appealed, and the Court of Appeals affirmed the circuit court’s dismissal of T&M Foods and Kent. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Issue 1: Employer’s insurance policy The Court of Appeals found that under the Evanston policy, “Kent is in no way protected as an insured[;]” that “Kent was covered only by the Progressive policy;” and, therefore, “the Whitakers effectively released Kent when they agreed not to execute on his personal assets because there were no other damages to be recovered.” The plain language of the “Settlement Agreement and Release” and the provisions of the Evanston policy contradict such a determination. An employer is generally held to be vicariously legally responsible for its employees’ negligent driving. This principle will only have application when the vehicle is driven during the course of the employee’s employment or within the scope of the permission given by the employer. Here, the accident occurred when Kent was operating his personal motor vehicle in the course and scope of his employment as a food-delivery driver for T&M Foods. The clear and unambiguous language of the Evanston policy provided coverage for Kent’s automobile, as it was “a non-owned motor vehicle, . . . used to deliver food on behalf of the Named Insured.” The policy provided coverage for “damages because of bodily injury . . . caused by an accident and resulting from the use of [Kent’s] covered auto[.]” Therefore, the Court of Appeals erred in concluding that there were no other damages to be recovered. Issue 2: Release of employee The release of a negligent employee, in any capacity, bars all claims of vicarious liability against the employer, despite a reservation of rights. The “Settlement Agreement and Release” in this case released only one very specific party to the litigation, Progressive. It did not release the driver or the driver’s employer. Regarding Kent, the Whitakers agreed only that in making any pursuit of their claim with respect to the automobile accident, they would not seek execution against personal assets of Kent. While the Court of Appeals correctly recognized that the trial court erred in dismissing Kent, it then erred in affirming the dismissal of Kent for other reasons. Issue 3: Retroactive application of decision T&M Foods presented the decision of J&J Timber v. Broome, 932 So. 2d 1 (Miss. 2006) to the trial court on the day of trial, four days after the decision was handed down by the Supreme Court. The Court of Appeals deemed the retroactive application of J&J Timber permissible. As a general rule, all judicial decisions apply retroactively unless the Court has specifically stated the ruling is prospective. Furthermore, newly enunciated rules of law are applied retroactively to cases that are pending trial or that are on appeal, and not final at the time of the enunciation. However, the Contracts Clause of the Mississippi Constitution provides that ex post facto laws, or laws impairing the obligation of contracts, shall not be passed. When the “Settlement Agreement and Release” was executed, W.J. Runyon & Son, Inc. v. Davis, 605 So. 2d 38 (Miss. 1992), was the controlling authority, providing that the release of an agent has no effect on the principal’s vicarious liability. Not until J&J Timber was handed down did the Court conclude that “[t]o the extent that Runyon holds that a vicarious liability claim can be maintained against the employer after the employee is released, without an allegation of independent negligence by the employer, that case is overruled.” The Contracts Clause of the Mississippi Constitution prohibits the retroactive application of J&J Timber to this case. |
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