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Date: 03-17-2021
Case Style:
Katrina Jackson Champ, Wrongful Death Beneficiary of James Earl Bernard, III, Deceased v. Mississippi Farm Bureau Casualty Insurance Company
Case Number: 2019-CA-01434-COA
Judge: Jim M. Greenlee
Court: IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
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Description:
Jackson, MS - Personal injury attorney represented Katrina Champ with filing a lawsuit, after her son was hit by a vehicle, against the driver, Anna Perrin; Anna’s parents, Kevin and Angela Perrin; and Mississippi Farm Bureau Casualty Insurance Company (“Farm Bureau”).
Around 10:00 p.m. onSeptember 17, 2018, eighteen-year-old Anna Perrin was drivinga 2012 Acura TL titled in her parents’ names on Kingston Road in Natchez, Mississippi,
when her vehicle collided with a pedestrian, James Bernard III. According to Anna, she did
not know what had hit the vehicle. She pulled over at The Old Kingston Store to observe the
damage. Then she drove home and reported the incident to her father, Kevin Perrin. Anna
and Kevin returned to the collision site and found Bernard lying next to the roadway.
According to Kevin and Anna, they did not call 911 from the collision site because they did
not have cell phone service. Instead, they went to Kevin’s mother’s house and called 911
from there. Ultimately, Bernard was airlifted to the hospital.1
¶3. On November 5, 2018, Bernard’s mother, Katrina Champ, filed a complaint against
Anna and her parents, Kevin and Angela. At the time, Bernard was “physically and mentally
incapable of handling his own affairs . . . .” The complaint alleged negligent operation of a
vehicle against Anna (Count I); negligence and negligent entrustment against Kevin and
Angela (Count II); and negligence against Anna and Kevin (Count III). As to Count III, the
complaint asserted that Anna and Kevin had negligently delayed in rendering aid to Bernard.
¶4. On November 13, 2018, Champ filed an amended complaint, naming Farm Bureau
as a defendant. The amended complaint requested a declaratoryjudgment that Homeowner’s
Insurance Policy Number HOK19650 provided additional coverage in the amount of
$300,000 for the claims asserted in the amended complaint.
¶5. In January 2019, Farm Bureau filed its answer, asserting that the homeowner’s
insurance policy did not provide coverage to the insureds for the claims in the amended
1
According to the crash report, Anna’s intoxilyzer result was 0.000.
2complaint. Specifically, Farm Bureau argued that “nothing alleged in the Complaint . . .
against any insured of Farm Bureau comes within the insuring agreement . . . as no bodily
injury or property damage is . . . the result of an “occurrence” defined by said policy to mean
an ‘accident’ . . . .” Alternatively, Farm Bureau argued that the motor vehicle liability
exclusion applied. Later that month, Farm Bureau filed a motion for summary judgment,
asking the court to declare as a matter of law that it had no duty to defend or indemnify the
Perrins under the policy and that there were no claims against Farm Bureau.
¶6. In February 2019, Champ filed a response in opposition to Farm Bureau’s motion for
summary judgment and a cross-motion for summary judgment. Champ asked the court to
enter an order declaring that the homeowner’s insurance policy provided additional coverage
and that Farm Bureau had a duty to defend and indemnify the Perrins. Alternatively, Champ
asked the court to find that Farm Bureau had a duty to defend the Perrins and hold the
indemnification issue in abeyance.
¶7. At a hearing, the court found that the claims in the amended complaint were not
covered by the homeowner’s insurance policy. Specifically, the court found that the motor
vehicle liability exclusion applied. Subsequently, the court entered its order and final
judgment, granting summary judgment and dismissing the claims with prejudice as to Farm
Bureau.
¶8. After Champ filed a notice of appeal, she filed a suggestion of death and motion for
substitution. The circuit court granted the motion, finding that Bernard died on August 24,
2019, and substituted Champ for Bernard. On appeal, Champ asserts that (1) Anna and
3Kevin breached their duty to render aid or, in the alternative, assumed the duty but did so
negligently; (2) her claim for negligent delay in rendering aid was covered by the terms of
the policy; and (3) her claim for negligent delay in rendering aid was not excluded by the
policy. Alternatively, Champ claims (4) the policy was ambiguous and should have been
construed against Farm Bureau. We combine these issues and address whether the court
erred by granting Farm Bureau’s motion for summary judgment.
STANDARD OF REVIEW
¶9. The grant or denial of summary judgment is reviewed de novo. Wright v. R.M. Smith
Investments L.P., 210 So. 3d 555, 557 (¶6) (Miss. Ct. App. 2016). “Summary judgment is
proper if there is no genuine issue of material fact and the moving party is entitled to a
judgment as a matter of law.” Id. (quoting Thrash v. Deutsch, Kerrigan & Stiles LLP, 183
So. 3d 838, 842 (¶10) (Miss. 2016)). “The moving party bears the burden to show that no
genuine issue of material fact exists, and the evidence must be viewed in the light most
favorable to the nonmovant.” Id.
DISCUSSION
¶10. We must address whether the court erred by granting summary judgment in favor of
Farm Bureau as to Count III, negligent delay in rendering aid.2 Champ concedes that the
2 Mississippi Code Annotated section 63-3-405 (Rev. 2013) provides, in relevant
part:
The driver of any vehicle involved in an accident resulting in injury or death
of any person or damage to any vehicle which is driven or attended by any
person shall . . . render to any person injured in such accident reasonable
assistance, including the carrying, or the making of arrangements for the
carrying, of such person to a physician, surgeon or hospital for medical or
4remaining claims in the amended complaint were not covered by the homeowner’s insurance
policy.
¶11. In the section of the homeowner’s insurance policy pertaining to coverages for
personal liability, Farm Bureau agreed to “[p]ay up to our limit of liability for the damages
for which an ‘insured’ is legally liable” if a claim was made or a suit was brought “for
damages because of ‘bodily injury’ or ‘property damage’ caused by an ‘occurrence’ to which
this coverage applies.” Farm Bureau also agreed to “provide a defense.” However, it
expressly stated that it had “no duty to defend any suit seeking damages for ‘bodily injury’
or ‘property damage’ to which this insurance does not apply.”
¶12. Based on the policy’s language, Farm Bureau had the duty to indemnify the Perrins
for any amount up to the policy’s limit that it became legally obligated to pay to another party
because of covered bodily injury. It also had the broader duty to defend any lawsuit against
the Perrins in which there was a potential of covered damages for which the Perrins would
become liable. See W.R. Berkley Corp. v. Rea’s Country Lane Const. Inc., 140 So. 3d 437
(¶21) (Miss. Ct. App. 2013).
¶13. But Farm Bureau had no duty to defend against alleged conduct that fell outside the
surgical treatment if it is apparent that such treatment is necessary. . . . No
such driver who, in good faith and in the exercise of reasonable care, renders
emergency care to any injured person at the scene of an accident or in
transporting said injured person to a point where medical assistance can be
reasonably expected, shall be liable for any civil damages to said injured
person as a result of any acts committed in good faith and in the exercise of
reasonable care or omission in good faith and in the exercise of reasonable
care by such driver in rendering the emergency care to said injured person.
Miss. Code Ann. § 63-3-405.
5policy’s coverage. That is because “in Mississippi, an insurance company’s duty to defend
its insureds derives neither from common law nor statute, but rather from the provisions of
its insurance contract with its insured.” Id. at (¶22) (quoting Baker Donelson Bearman &
Caldwell P.C. v. Muirhead, 920 So. 2d 440, 450 (¶40) (Miss. 2006)).
¶14. Based on the language of the policy, Farm Bureau had a duty to defend against the
Perrins’ potential liability for “bodily injury” but only if the “bodily injury” was caused by
an “occurrence,” which the policy defined as an “accident,” and no exclusion applied. See
Lafayette Ins. Co. v. Peerboom, 813 F. Supp. 2d 823, 826 (S.D. Miss. 2011).
¶15. The Perrins’ policy defines “occurrence” as “an accident, including continuous or
repeated exposure to substantially the same general harmful conditions.” While the policy
defines “occurrence” as an “accident,” the policy does not define “accident.” However, our
supreme court has provided guidance as to the meaning of the term. For example, the
supreme court has explained that an “insured’s intentional acts do not constitute ‘accidents,’
and the damages resulting therefrom do not amount to ‘occurrences,’ even if the insured acts
in a negligent manner.” Id. (quoting Architex Association Inc. v. Scottsdale Ins. Co., 27 So.
3d 1148, 1159 (¶25) (Miss. 2010)). That is, “even if an insured acts in a negligent manner,
that action must still be accidental and unintended to implicate the policy language.” Id.
(quoting Architex, 27 So. 3d at 1158 (¶24)).
¶16. The circuit court found that Bernard’s injuries arose out of the use of a motor vehicle.
We agree. However, even if a bodily injury was caused by an “occurrence,” coverage is not
automatic. “It also must be ascertained, under the facts specific to each case, if any other
6exclusions and/or exceptions to exclusions apply.” Berkley, 140 So. 3d at 445 (¶32) (quoting
Architex, 27 So. 3d at 1161 (¶29)).
¶17. The homeowner’s insurance policy in this case contains an exclusion for motor
vehicle liability. The policy states that “personal liability” does “not apply to any ‘motor
vehicle liability’ if at the time and place of an ‘occurrence’ the involved ‘motor vehicle’ is
registered for use on public roads or property . . . .” The policy defines “Motor Vehicle
Liability” as “[l]iability for ‘bodily injury’ . . . arising out of the: (1) Ownership of such
vehicle or craft by an ‘insured’; (2) Maintenance, occupancy, operation, use, loading or
unloading of such vehicle or craft by any person; (3) Entrustment of such vehicle or craft by
an ‘insured’ to any person; (4) Failure to supervise or negligent supervision of any person
involving such vehicle or craft by an ‘insured’; or (5) Vicarious liability, whether or not
imposed by law, for the actions of a child or minor involving such vehicle or craft.”
¶18. Champ acknowledges that liability arising out of the use or operation of a vehicle is
excluded from coverage. However, Champ argues that “post-accident claims” are not
excluded. According to Champ, Anna and Kevin’s delay in rendering aid was unrelated to
the use or operation of the vehicle and that the delay proximately caused Bernard’s injuries.
We disagree. Bernard’s injuries would not have occurred but for the use or operation of the
motor vehicle. And such use proximately caused Bernard’s injuries. The motor vehicle
liability exclusion excludes coverage for injuries that would not have occurred but for the use
of a motor vehicle, regardless of the theory of liability asserted. See Titan Indem. Co. v.
Estes, 825 So. 2d 651, 657 (¶22) (Miss. 2002).
Outcome: Therefore, we find that the circuit court did not err by granting Farm Bureau’s motion for summary judgment.
AFFIRMED.
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