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WILLIAM A. SHERROD & BERNETTA SHERROD v. UNITED STATES FIDELITY AND GUARANTY COMPANY AND COLUMBUS ORTHOPEDIC CLINIC

DECEMBER 16, 1987

WILLIAM A. SHERROD & BERNETTA SHERROD
v.
UNITED STATES FIDELITY AND GUARANTY COMPANY AND COLUMBUS ORTHOPEDIC CLINIC, P.A., AND DR. CHARLES RHEA



BEFORE DAN M. LEE, P.J.; ROBERTSON AND GRIFFIN, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I

This is a rather sad suit by an uneducated, injured

 laborer, who made a modest settlement of his workers compensation claim and then sued his treating physician, charging malpractice, and the compensation insurance carrier, alleging a bad faith refusal tort. The laborer's plight evokes sympathy, but he has offered nothing to show a viable claim against any Defendant. We affirm the judgment summarily dismissing all claims.

 II.

 A.

 Today's unfortunate tale is told most fully through the eyes of William H. Sherrod. Sherrod, thirty years old, married and the father of three, lives in Columbus, Mississippi. His education is quite limited. Sherrod suffered back, wrist, and mostly knee injuries when he fell down the stairs while working at Columbus Brick company. The accident occurred on a Friday in April or May of 1983.

 Sherrod ultimately was treated by Dr. Charles Rhea at Columbus Orthopedic Clinic. Dr. Rhea told Sherrod the wrist and back would heal themselves but performed an arthroscopic meniscectomy on Sherrod's knee in September of 1983. About three months after the operation, Sherrod returned to work with Columbus Brick until May of 1984. He then filed a worker's compensation claim against his employer and United States Fidelity and Guaranty Company, its compensation insurance carrier.

 Sherrod returned to work in September, but in December of 1984, Dr. Rhea performed further arthroscopic surgery. Three days later a blood clot was removed. On March 14, 1985, Dr. Rhea informed Sherrod that he was able to return to work. However, two days earlier, Sherrod's attorney had sent him to see another physician, Dr. John McFadden, who told him that he should not return to work.

 Needing money, Sherrod returned to Columbus Brick but was told he couldn't be rehired until he brought a release from his doctor. However, Sherrod did not go back to Dr. Rhea to get such a release. Dr. McFadden would not give him such a release.

 When USF&G received Dr. Rhea's opinion that Sherrod was able to go back to work, it stopped paying temporary benefits. However, Sherrod did not complain of this to his USF&G representative because he didn't know to do that. Two months later, Sherrod tried again to get his job back with Columbus Brick only to be told that he still needed a release.

 Sherrod ultimately settled his compensation claim, with USF&G paying him $10,500.00.

 B

 On August 8, 1985, William H. Sherrod and his wife, Brenetta, filed suit in Circuit Court of Lowndes County, Mississippi. He named Dr. Charles Rhea and the Columbus Orthopedic Clinic, P.A., as Defendants and alleged that Dr. Rhea "wrongfully and intentionally stated that the Plaintiff was able to return to work" on March 14, 1985. Sherrod also sued USF&G and alleged that it "intentionally and wrongfully discontinued temporary total disability benefits due Plaintiff William Sherrod." The complaint continues that the acts committed by USF&G and its agents were "an intention [sic] infliction of mental and emotional distress and furthermore, a breach of the contract of insurance for which the Plaintiff was a third party beneficiary." In the alternative, Sherrod's amended complaint added, if the Clinic and Dr. Rhea were not agents of USF&G, "they are liable in the alternative independently and vicariously for intentional infliction of emotional distress" and Dr. Rhea and Columbus Orthopedic Clinic are separately liable "for their intentional departure from the standard of medical care owed to the Plaintiff." Sherrod asked for $45,000.00 in damages ($20,0000 compensatory and $25,000 punitive).

 On September 6, 1985, Columbus Orthopedic Clinic and Dr. Rhea filed a motion for summary judgment with their answer to the complaint. USF&G filed a similar motion on January 13, 1986. On January 25, 1986, the Circuit Court entered summary judgment, dismissing Sherrod's claim against the Clinic and Dr. Rhea. On February 25, 1986, summary judgment for USF&G followed. From these judgments, Sherrod appeals.

 III.

 On appeal, Sherrod challenges the summary judgments entered in favor of all three Defendants. Although we will consider the claims against Columbus Orthopedic Clinic, P.A., and Dr. Rhea separately from the claims against USF&G, it will be well to recite at the outset the increasingly familiar principles regarding summary judgment. All Defendants proceeded under Rule 56 (c) which provides in relevant part:

 The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if

 any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

 Not all fact issues preclude summary judgment, only those regarding material facts. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L. Ed. 2d 202, 211 (1986) is persuasive.

 . . . The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement ...


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