Fidelity & Deposit Co. of Maryland
| Docket Number: | 2009-CA-00446-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 02-25-2010 Opinion Author: Waller, C.J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Contract - Specific performance - Performance bond - Section 31-5-41 Judge(s) Concurring: Carlson, P.J., Dickinson, Randolph, Lamar, Kitchens, Chandler and Pierce, JJ. Concurs in Result Only: Graves, P.J. Procedural History: Dismissal Nature of the Case: CIVIL - CONTRACT; Dismissal |
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| Trial Court: |
Date of Trial Judgment: 12-05-2008 Appealed from: Attala County Chancery Court Judge: Cynthia Brewer Disposition: The chancellor dismissed the case on the basis that Mississippi Code Section 31-5-41 prohibits Fidelity from seeking indemnity for its own negligence. Case Number: 2008-96 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | FIDELITY & DEPOSIT COMPANY OF
MARYLAND |
ALEC M. TAYLOR, DAVID J. KREBS, ELLIE B. WORD |
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| Appellee: | RALPH McKNIGHT & SON CONSTRUCTION, INC., TOMMY L. McKNIGHT AND VONDA L. McKNIGHT | R. ADAM KIRK, ANDREW J. KILPATRICK, JR. |
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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: | Contract - Specific performance - Performance bond - Section 31-5-41 |
| Summary of the Facts: | Fidelity and Deposit Company of Maryland filed suit against Ralph McKnight & Son Construction, Inc., Tommy McKnight, and Vonda McKnight. Fidelity sought injunctive relief and specific performance of an indemnity agreement entered with McKnight in conjunction with Fidelity’s issuance of a performance bond. The chancellor dismissed the case on the basis that section 31-5-41 prohibits Fidelity from seeking indemnity for its own negligence. Fidelity appeals. |
| Summary of Opinion Analysis: | Section 31-5-41 states that its provisions do not apply to “construction bonds.” A performance bond is a type of construction bond. Section 31-5-41 then, by its own language, excepts performance bonds. This remains true even if the performance bond incorporates the construction contract by reference. McKnight argues that the Court should not address the issue because the chancellor never ruled on Fidelity’s motion for summary judgment. Although the chancellor twice mentioned Fidelity’s motion for summary judgment at the hearing, she never ruled on that issue. Because the chancellor never decided the merits of Fidelity’s motion for summary judgment, this issue will not be addressed on appeal. |
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