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McGee v. Swarek

December 08, 1998

MICHAEL L. MCGEE AND SHERRY B. MCGEE APPELLANTS
v.
THOMAS L. SWAREK APPELLEE



Before McMILLIN, P.j., Coleman, And Southwick, JJ.

The opinion of the court was delivered by: McMILLIN, P.j.

DATE OF JUDGMENT: May 20, 1997

TRIAL JUDGE: HON. JOHN H. WHITFIELD

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - OTHER

TRIAL COURT DISPOSITION:

GRANTED SUMMARY JUDGMENT IN FAVOR OF THOMAS L. SWAREK

DISPOSITION: AFFIRMED

¶1. This case comes before the Court as an appeal from a grant of summary judgment in favor of the defendant in an action sounding in fraud. The appeal suggests that summary judgment was inappropriate because there are disputed issues of fact that, if resolved favorably to the plaintiffs, would establish their right to recover in this case. We conclude that the judgment of the trial court was correct and we, therefore, affirm.

I. Facts

¶2. The facts of this case follow a somewhat tortured course to bring us to the claim now advanced by the plaintiffs. We will attempt to relate them as succinctly and clearly as possible. It might prove helpful to resist the urge to anticipate the path of the narrative that follows since it takes some unexpected turns.

¶3. The plaintiffs in the trial court in this case were Michael McGee and his wife, Sherry McGee. Hereafter, Michael McGee will be referred to simply as "McGee" since he, and not Sherry McGee, is the principal player in the drama. This case had its origins in a personal injury suffered by McGee at work, but it is important to keep in mind that the case now before this Court is not a personal injury action. As will appear more fully hereafter, McGee's claim for personal injury has been finally resolved in another proceeding.

¶4. McGee was employed by the defendant, Thomas Swarek, as a farm laborer. In the fall of 1992, McGee suffered a devastating injury while at work that resulted in the loss of one leg and a portion of his lower torso. McGee was not a covered employee under Mississippi Workers' Compensation laws. Rather, his sole remedy was an action in negligence. He asserted a claim for recovery against Swarek, his employer, asserting that his injury was due to the negligence of a fellow employee, thus rendering Swarek vicariously liable under the doctrine of respondeat superior. Swarek was covered under a liability insurance policy issued by State Farm Fire and Casualty Company (hereafter "State Farm") with policy limits of $1,000,000.

ΒΆ5. The McGees retained the services of Roy O. Parker, an attorney, to represent them in pursuit of their damage claims arising out of McGee's injury. (Mrs. McGee's role in this case arises out of her belief that she had a separate loss of consortium claim based on her husband's personal injuries.) In March 1993, Parker had a telephone conversation with Swarek. The call was initiated by Parker, but was apparently in response to an earlier unsuccessful attempt by Swarek to contact Parker. Parker, without Swarek's knowledge, made a recording of the telephone conversation. A written transcript of the conversation was filed as an exhibit to the complaint in this case. A review of that conversation indicates that Swarek's principal concern was that the claim asserted by Parker exceeded the limits of the State Farm policy and he feared that State Farm might be unwilling to settle the claim at or below the policy limits, thus exposing Swarek to potential personal liability. Parker's principal concern, on the other hand, appeared to be whether there were means that could be employed to secure payment of the entire $1,000,000 policy limits since State Farm was suggesting that McGee's damages were subject to substantial reduction because of evidence that McGee's own negligence contributed to his injury. Parker and Swarek discussed possible strategies to bring pressure to bear on State Farm to settle the case within policy limits. In the course of the conversation, Swarek made certain statements that indicated to Parker his desire to put McGee back to work but that State Farm representatives were ...


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