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727 So.2d 710 (Miss. 12/31/1998)

December 31, 1998

LUMBERMAN'S UNDERWRITING ALLIANCE AND NORTHBROOK PROPERTY AND CASUALTY INSURANCE COMPANY
v.
CITY OF ROSEDALE, MISSISSIPPI



Before Pittman, P.j., Banks And Waller, JJ.

The opinion of the court was delivered by: Waller, Justice, For The Court:

DATE OF JUDGMENT: 09/04/96

TRIAL JUDGE: HON. ELZY JONATHAN SMITH, JR.

COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - INSURANCE

¶1. This case is an appeal from the Order of the Circuit Court in Bolivar County, Mississippi, granting summary Judgment in favor of the City of Rosedale. On August 30, 1993, a fire occurred which damaged the Piggly Wiggly supermarket and Bill's Dollar Store located in Rosedale, Mississippi. Northbrook Property and Casualty Insurance Company provided property insurance for Piggly Wiggly. Lumberman's Underwriting Alliance provided property insurance for Bill's Dollar Store. Accordingly, Lumberman's and Northbrook are subrogated to the interests of Bill's Dollar Store and Piggly Wiggly, respectively. Lumberman's and Northbrook separately filed complaints alleging negligence on the part of the City of Rosedale concerning the water supply necessary to fight the fire.

¶2. Aggrieved by the Judge's grant of summary Judgment in favor of the City of Rosedale, Lumberman's and Northbrook assign the following as error:

I. THE TRIAL COURT ERRED IN FAILING TO EXAMINE WHETHER ZOLA LEE CHERRY HAD APPARENT AUTHORITY TO BIND THE CITY OF ROSEDALE IN TURNING OFF THE WATER SUPPLY TO THE BUILDING'S SPRINKLER SYSTEM.

II. ZOLA LEE CHERRY WAS PERFORMING A PROPRIETARY FUNCTION, WHICH IS NOT SUBJECT TO MUNICIPAL TORT IMMUNITY UNDER MISSISSIPPI LAW, WHEN HE TURNED OFF THE WATER SUPPLY TO THE PIGGLY WIGGLY AND BILL'S SPRINKLER SYSTEM.

III. THE AMENDED COMPLAINTS SUFFICIENTLY SET FORTH CLAIMS THAT CREATE A JURY ISSUE AS TO WHETHER ZOLA LEE CHERRY ACTED IN WANTON OR RECKLESS DISREGARD FOR THE PROPERTY OF BILL'S AND PIGGLY WIGGLY AND AS TO WHETHER CHERRY ACTED WITHIN THE COURSE AND SCOPE OF HIS EMPLOYMENT WITH THE CITY OF ROSEDALE.

After a careful examination and consideration of the record, briefs and oral argument in this matter, this Court finds that Lumberman's and Northbrook have not demonstrated that there exists a genuine issue of fact and, therefore, affirms the trial Judge's grant of summary judgment.

I.

¶3. On August 30, 1993, a fire of unknown origin occurred at the premises occupied by Bill's Dollar Store ("Bills") located in Rosedale, Mississippi. The fire subsequently spread to the adjacent space occupied by a Piggly Wiggly supermarket ("Piggly Wiggly"). The building structure was owned by Michael's Enterprises ("MEI") and was leased to the two aforementioned tenants. The fire destroyed the building's structure, as well as property of Bill's and Piggly Wiggly.

ΒΆ4. At some time prior to the fire, a water line was leaking due to a burst pipe and was causing water to back up in the rear of Piggly Wiggly, thereby preventing trucks from making necessary deliveries. At the request of a private individual (either MEI or the Piggly Wiggly manager), Zola Cherry ("Cherry"), City of Rosedale employee, turned off the water line ...


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