BEFORE DAN LEE, P. J., PRATHER AND ZUCCARO, JJ.
PRATHER, JUSTICE, FOR THE COURT:
Dennis W. and Betty G. Mink, owners of a cabin located in Holmes County, brought this action in the Circuit Court of Humphreys County, for the alleged wrongful failure to pay by the defendant, Andrew Jackson Casualty Insurance Co., under the terms of an insurance policy. The claim arose when the plaintiffs' cabin burned to the ground. Both parties filed motions for summary judgment, and the trial court granted the defendant's motion. The plaintiffs now perfect their appeal to this Court and assign as error the following:
(1) The trial court erred in denying the motion for summary judgment as to liability on behalf of the appellants and likewise erred in granting the motion for summary judgment by the appellee.
On or about September 15, 1984, the appellant Dennis Mink purchased an insurance policy from the Belzoni Insurance Company Agency in Belzoni, Mississippi, covering a dwelling located on Bee Lake in Holmes County, Mississippi. The policy allegedly provided coverage in the amount of $20,000 on the dwelling and $10,000 on the contents. This transaction was handled by Thomas Russell, the general agent and owner of Belzoni Insurance Agency. Russell was a licensed general insurance agent for several companies, including but not limited to Audubon Insurance Company and the appellee, Andrew Jackson Casualty Insurance Company.
On or about October 15, 1984, Russell placed the appellants' insurance policy covering the cabin with the Audubon Insurance Company as a rider added to the appellants' homeowners' policy. Also, on or about October 15, Russell purchased a one-half interest in the dwelling located at Bee
Lake from the appellants and paid them $10,000 for his one-half interest. On or about October 26, 1984, Russell received notice from the Audubon Insurance Company that it was cancelling the coverage on the dwelling at Bee Lake which had been added to the appellant's homeowner policy, because the dwelling was located outside the three mile limit of a Class 8 town.
After the cancellation of the rider attached to the Audubon Insurance Company policy, Russell, in his capacity as general agent for the appellee, instructed his secretary and/or his wife to type an insurance policy covering the cabin and to place the coverage with the appellee. Through an error or misunderstanding, the policy was not immediately issued. The policy was to have been for $10,000 on the residence and $5,000 on the contents, which represented the appellant's fifty percent interest in the cabin.
At the same time Russell purchased the fifty percent interest in the cabin, he placed $10,000 worth of coverage on the cabin and $5,000 on the contents, thereby covering his fifty percent interest. This policy was with Lumbermens Mutual Insurance Company. On or about January 31, 1985, Russell became aware that the policy with the appellee covering the cabin was not actually in effect. Allegedly on that same day, Russell typed out a policy with the appellee covering the cabin on Bee Lake.
On or about February 4, 1985, the cabin was totally destroyed by fire. Russell and the appellee's adjuster Byrd Sorrells, Jr. inspected the dwelling and found it to be a total loss. Sorrells filed a report which was sent to both the appellee and Lumbermens Mutual. In his report he stated that there were no suspicious circumstances surrounding the fire.
Russell claims that Lumbermens Mutual paid him for his fifty percent interest in the dwelling, but there is also a memorandum contained in the record from Sorrells to Mary Lee Smith of the Andrew Jackson Insurance Company which details possible problems with paying off Russell's claim. In a letter dated June 7, 1985 the appellee informed the appellants that they were denying coverage for a variety of reasons. Among the reasons given were (1) that the property attempted to be covered was encompassed within classifications of prohibited dwellings as per the company's underwriting guidelines, and (2) that the proposed coverage was not submitted to the company until after the date of loss although the policy was dated January 31, 1985, and was signed by Agent Russell.
On November 5, 1985 the appellants filed suit in the Circuit Court of Humphreys County, demanding payment of their claim and seeking punitive damages. After numerous motions, forms of discovery, interrogatories and depositions had been taken, the appellants filed a motion for summary judgment as to liability, which was refused. The appellee then filed a motion for summary judgment, which was granted. The appellants then perfected their appeal to this Court.
DID THE TRIAL COURT ERR IN DENYING THE MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY ON BEHALF OF THE APPELLANTS AND LIKEWISE ERR IN GRANTING THE ...