The opinion of the court was delivered by: Pittman, Presiding Justice, For The Court
DATE OF JUDGMENT: 04/02/93
TRIAL JUDGE: HON. JAMES E. GRAVES, JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - INSURANCE
DISPOSITION AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 9/10/98
¶1. On February 4, 1986, Federated Guaranty Mutual Insurance Company, now Alfa Insurance Company ("Alfa"), filed a declaratory judgment action to determine its obligations to Cossitt under its policy of automobile insurance, particularly with regard to its obligations concerning the policy's uninsured motorist provisions. On February 27, 1986, Cossitt filed her Answer and Counter-Claim against Alfa alleging she was entitled to the total amount of medical expenses incurred by her, and a sum equal to the uninsured motorist coverage under said policy, and further sought to collect punitive damages alleging that Alfa failed to act in good faith.
¶2. The trial court granted Alfa's Motion for Summary Judgment. The court found that there was no evidence of any acts of bad faith in the handling of Cossitt's claim for both medical and uninsured motorist coverage by Alfa, and further found that Cossitt was not entitled to uninsured motorist benefits.
¶3. Cossitt appealed this order to the Court, and the Court affirmed the trial court's ruling that Cossitt was not entitled to uninsured motorist benefits. The Court further affirmed the dismissal of Cossitt's claim for alleged bad faith for failure to pay uninsured motorist coverage. However, this Court reversed the trial court's findings concerning Cossitt's claim for punitive damages relevant to the medical payments coverage under the policy, and remanded the case to the trial court "for the limited purpose of allowing the additional development of facts surrounding Federated Guaranty's failure to pay medical benefits to [Jan] Cossitt following November 1, 1985." Cossitt v. Federated Guar. Mut. Ins. Co., 541 So. 2d 436, 445 (Miss. 1989) (Cossitt I).
¶4. After remand the parties conducted additional discovery. Alfa moved for a protective order based on Cossitt's requests for discovery. Cossitt filed a motion to amend her answer and counterclaim seeking all medical payments to which she was entitled under the policy of insurance and exemplary and punitive damages for Alfa's alleged wrongful refusal to pay such benefits. Cossitt further claimed that she was entitled to $10,000.00 under the uninsured motorist provisions of Alfa's policy as a result of the coverage of the church's bus policy of insurance. Also, Cossitt demanded exemplary and punitive damages alleging Alfa wrongfully refused to tender the underinsured motorist and medical benefits.
¶5. The Honorable James Graves, Circuit Court Judge, ruled that Cossitt's Motion exceeded the scope of this Court's mandate and further ordered that Cossitt would be "prohibited from conducting discovery, introducing evidence at any hearing and introducing into evidence at the trial any evidence not directly related to the development of facts surrounding Federated Guaranty's failure to pay medical benefits to Cossitt."
¶6. Alfa filed a Supplemental Motion for Summary Judgment. On April 1, 1993, after a hearing held on February 25, 1993, Judge Graves entered an order granting summary judgment in favor of Alfa on the issue of Alfa's alleged bad faith refusal to pay at least $1,000.00 in medical benefits. The court specifically found that Cossitt was entitled to $1,000.00 of medical benefits. Cossitt appeals these two orders.
MOTION PASSED FOR CONSIDERATION
¶7. Between the hearing and ruling on February 25, 1993, and April 1, 1993, the date Judge Graves entered his Order, Cossitt filed a Motion for Reconsideration of Order Granting Plaintiff's Summary Judgment and a document entitled "Second Response to Plaintiff's Motion for Summary Judgment" with exhibits attached. Among the exhibits were the deposition of Harold Cain, district claims manager of Federated Guaranty, deposition of Charles Wilbanks, Cossitt's former attorney, and correspondence between Alfa and Wilbanks. Both depositions were taken in 1991, and the correspondence is between 1985-89.
¶8. Alfa has filed a motion to prohibit any consideration of these issues by the Court, as the record on appeal is devoid of any evidence that a hearing on Cossitt's motion was ever conducted. Alfa argues that, because there is not an order in the record either granting or denying Cossitt's Motion for Reconsideration, the issues raised in the Motion are presumed waived or abandoned. See 60 C.J.S. Motions and Orders § 42 (1969). They also cite in support Miss. Sup. Ct. R *fn1. 10(e) which provides that the parties by stipulation, or the trial court, either before or after the record is transmitted to this court, or this court on proper motion may order that misstatements in the record be corrected. Furthermore, pursuant to 10(f), nothing in Rule 10 shall be construed as empowering the parties to add to or subtract from the record except insofar as may be necessary to convey a fair, accurate and complete account of what transpired in the trial court with respect to those issues that are the basis of appeal. Alfa asserts that because Cossitt's Response and corresponding exhibits were not introduced before or during the hearing before Judge Graves, they violate 10(f) and should be excluded from consideration in the appeal.
¶9. Alfa quotes Rule 56(c) of the M.R.C.P. in pertinent part as follows:
...The [Summary] 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. (emphasis added)
Alfa argues that the depositions of Cain and Wilbanks and the correspondence attached to Cossitt's Response were not "on file" on February 25, 1993, the date of the hearing before Judge Graves, because they were not filed until March 12, 1993. Thus, these documents should be stricken from the record along with all arguments in Cossitt's brief relating thereto.
¶10. Cossitt argues that under Miss. Sup. Ct. R. 10(b)(5), Alfa had an opportunity to and did review the record in October, 1993 and make the corrections which it deemed appropriate. That rule provides that the appellee is allowed seven days to review the record and at that time may append corrections, which if disputed shall be determined by the trial court to be proper or not. Miss. Sup. Ct. R. 10 (1994). This is Alfa's third attempt to modify the record. Cossitt argues that an excessive amount of time has passed since this appeal was filed and briefing is still incomplete due to Alfa's continuous filings to modify the record which it should have addressed long ago.
¶11. Cossitt also argues that the issues raised in her Second Response to Plaintiff's Motion for Summary Judgment were raised by counsel for Cossitt in the hearing on the Motion, and the documents attached were a part of the pleadings on file at said hearing and/or considered by the court prior to the entry of the Orders granting summary judgment in favor of Alfa.
¶12. Alfa makes a great deal out of the fact that the attachments to Cossitt's Response were not "on file" with the court and thus not before judge Graves at the time of his ruling. Therefore, they should not be a part of the record. The emphasis by Alfa on the words "on file" in Rule 56(c) is misplaced. The Rule separates the different documents to be considered by commas and "on file" refers only to admissions. See II James W. Moore, Moore's Federal Practice, § 56.11 (3d ed. 1998) (discussing why admissions must be "on file" under F.R.C.P. 56(c)). However, the record reflects that Judge Graves did not consider any of those documents attached to the Response in his ruling. Furthermore, there was no Disposition of the Motion by Judge Graves. "[T]he affirmative duty rests upon the party filing the motion to follow up his action by bringing it to the attention of the trial court." Cossitt I, 541 So. 2d at 446. A motion that is not ruled upon is presumed abandoned. See 60 C.J.S. Motions & Orders § 42 (1969); Prather v. McGrady, 634 N.E.2d 299, 303 (Ill. App. Ct. 1994).
¶13. Alfa's Motion is well taken. There is no reference at the hearing to Cain's or Wilbanks's deposition or the correspondence nor are they among the exhibits introduced at the hearing. Nor did Cossitt submit affidavits in response. Cossitt did submit supplemental responses to interrogatories at the hearing. However, these are nowhere to be found in the record on appeal. Alfa asserts that the interrogatories referred to at the hearing are improper as they are not signed by Cossitt as required by M.R.C.P. 33 and are signed only by Cossitt's attorney. They further assert that these interrogatories were not under oath. The interrogatories are not in the record, and thus the Court cannot review them. Cossitt is appealing the order of the trial court, and so, she has the burden of seeing that the record before the Court contains all data essential to matters relied upon for reversal. Shelton v. Kindred, 279 So. 2d 642, 644 (Miss. 1973)(Smith, J.).
¶14. The documents in Cossitt's Response were not considered at the hearing. Judge Graves did not rule on the Response and it was not addressed in the entered Order on April 1, 1993. In fact the entered Order was identical to Judge Graves's ruling at trial. Therefore, the addition of Cossitt's Response in the Motion is not a fair, accurate and complete account of what transpired in the trial court with respect to those issues. Alfa's Second Motion to Correct or Modify the Record is granted and all arguments referring to the documents contained in Cossitt's Response are stricken.
STATEMENT OF THE ISSUES I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF FEDERATED GUARANTY.
A. The Trial Court Erred in Granting Summary Judgment in Favor of Federated Guaranty on the Issue of Bad Faith in Light of Evidence that the Tender of The Undisputed Amount of Medical Pay Benefits was Unreasonably Delayed
B. The Trial Court Erred in Granting Summary Judgment on the Issue of the Limit of Medical Payments Coverage Under the Policy.
II. THE TRIAL COURT ERRED IN REJECTING COSSITT'S CLAIM FOR PREJUDGMENT INTEREST.
III. THE TRIAL COURT ERRED IN DENYING COSSITT'S MOTION FOR LEAVE TO AMEND ANSWER AND COUNTERCLAIM TO ASSERT AN ADDITIONAL BASIS FOR INVOKING UNINSURED MOTORIST COVERAGE AND TO ASSERT THAT FEDERATED GUARANTY MAINTAINED AN ILLEGAL PROVISION IN ITS POLICY, AND IN PRECLUDING COSSITT FROM CONDUCTING DISCOVERY ON THIS ISSUE.
¶15. This is the second time this case has been before the Court. Cossitt, Odom McDaniel, and Joseph Q. White were struck by a vehicle owned and operated by Lester Davis. Cossitt sustained in excess of $10,000.00 in bodily injury. The other two claimants exhausted the tortfeasor's liability, and this action arose from Cossitt's claim against her own uninsured motorist policy with Alfa. The Court affirmed in Cossitt I the trial court's grant of summary judgment to Alfa on all issues except one: Alfa's failure to make medical payments under the policy. The Court reversed and remanded for a more complete development of facts surrounding Alfa's failure to pay at least $1,000.00 in medical benefits. Cossitt I, 541 So. 2d at 446.
¶16. The policy issued to Cossitt in pertinent part provides:
Coverage C--Medical Payments.
To pay the reasonable expense of necessary medical. .. services... incurred within one year from date of accident to or for:
Limits of Liability (1) Coverages A, B and C.
The limits of bodily injury liability stated in the declarations as applicable to "each person" is the limit of the ...