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CHARLES L. WESTMORELAND v. LEWANA D. RAPER AND COMMERCIAL UNION INSURANCE COMPANIES

JUNE 03, 1987

CHARLES L. WESTMORELAND
v.
LEWANA D. RAPER AND COMMERCIAL UNION INSURANCE COMPANIES



BEFORE ROY NOBLE LEE, P.J., SULLIVAN & GRIFFIN, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

The Circuit Court of Lee County, Judge Thomas Gardner presiding, entered pursuant to Rule 54 (b) of the Mississippi Rules of Civil Procedure, a final judgment of dismissal in favor of Commercial Union Insurance Companies. That court then stayed any further proceedings in this cause pending Westmoreland's appeal of the dismissal, wherein Westmoreland alleges:

I. Under the Mississippi Rules of Civil Procedure, a liability insurance company may be joined as a defendant with its insured.

 The most persuasive theories argued by Westmoreland are (1) adoption of the Mississippi Rules of Civil Procedure ended the prohibition against direct actions by third parties on insurance policies and the prohibition against the mention of liability insurance in trials; and (2) a third party may maintain a direct action against an insurance company on a theory of contract as the "third party beneficiary" to the agreement between the insured and his insurer.

 We have on numerous occasions had the opportunity to provide for the joinder of the defendant and insurer in a direct action and we have steadfastly refused to do so. That refusal continues.

 The basis of Westmoreland's argument lies in the general language of Rule 1, Rule 20 and Rule 57 of the Mississippi Rules of Civil Procedure, and specifically Westmoreland relies on Rule 18 (b) which provides:

 Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to conclusion, the two claims may be joined in a single action.

 The official comment thereto states:

 Rule 18 (b) permits a party to join two claims even though if they were asserted independently it would be necessary to prosecute one of them successfully before proceeding to the adjudication of the other . . . The basic purpose of the rule is to reinforce the notion that a party should be entitled to obtain in a single action all the relief to which he is entitled.

 Thus, Westmoreland says that the intent of the Rules of Civil Procedure is to terminate the old pleading rules,

 under which an injured party first had to sue the tort-feasor and then had to bring a separate action against the insurance company. Westmoreland argues that only by permitting joinder of the insured and insurer in a single action, can the plaintiff, obtain "all the relief to which he is entitled." Otherwise, there must first be a suit against Raper, to determine her negligence; then, there must a suit against Commercial Union to determine the coverage of its policy.

 This argument is facially persuasive and not without its attractiveness but it is nonetheless without merit under the decisions of this Court.

 In Smith v. City of West Point, 475 So. 2d 816, 819 (Miss. 1985), this Court felt "obliged (though not obligated)" to follow the last sentence of Mississippi Code Annotated, 21-15-6 (1972), which prohibits "mention of insurance" in suits brought against municipalities. However, this Court observed that the question of whether a liability carrier may be joined as a defendant with its insured has not been decided under the Mississippi Rules of Civil Procedure. In so doing this Court said:

 "Our traditional rule is that a liability insurer may not be sued directly, Cook v. State Farm Mut. Ins. Co., 241 Miss. 371, 128 So. 2d 363 (1961), and the fact that the defendant is insured may not even be mentioned. Herrin v. Daly, 80 Miss. 340, 31 So. 790 (1902). To be sure, we confront here a procedural question and the potential for undoing our traditional rule and ...


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