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Thompson v. A & Z, Inc.

Court of Appeals of Mississippi

June 17, 2014

KEVIN THOMPSON, APPELLANT
v.
A & Z, INC. A/K/A A& Z PAINTING, APPELLEE

DATE OF JUDGMENT: 11/14/2012

COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. DAVID H. STRONG JR. TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED IN FAVOR OF APPELLEE.

FOR APPELLANT: RONALD EARL STUTZMAN JR., EDUARDO ALBERTO FLECHAS.

FOR APPELLEE: CECIL MAISON HEIDELBERG.

BEFORE IRVING, P.J., BARNES AND FAIR, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

OPINION

Page 745

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

BARNES, J.

¶1. Kevin Thompson was involved in an automobile accident with Vickie Cunningham, an employee of A& Z Inc. (A& Z). After concluding that the employee was not acting in the course and scope of her employment at the time of the accident, the Lincoln County Circuit Court granted summary judgment in favor of A& Z. On appeal, we affirm the circuit court's judgment.

FACTS AND PROCEDURAL HISTORY

¶2. On the morning of October 5, 2010, Thompson was driving his motorcycle on Highway 51 in Brookhaven, Mississippi, when he was struck by a car driven by Cunningham, who was on her way to work. Thompson suffered several bodily injuries and property damage as a result of the accident. Thompson filed a complaint against Cunningham, on October 20, 2010, alleging " negligent, careless, and/or wanton conduct," and requested damages exceeding one million dollars.

¶3. After a $25,000 settlement was reached with Cunningham, Thompson filed an amended complaint on May 20, 2011, seeking to dismiss her from the action and to add her employer, A& Z, as a defendant. In the amended complaint, Thompson claimed that Cunningham was acting in the course and scope of her employment, and A& Z was liable " by virtue of vicarious liability." He further contended that Cunningham " was engaged in an ultra-hazardous activity" ; specifically, that she was transporting open containers of paint thinner in her trunk that were emitting " noxious fumes." Another amended complaint filed on August 19, 2011, alleged that A& Z acted negligently in its hiring of Cunningham and that it " negligently entrusted the vehicle in question to Cunningham." Thompson also moved that Cunningham be voluntarily dismissed from the action. The circuit court granted the amendments to the complaint and dismissed Cunningham as a defendant.

¶4. On September 21, 2011, A& Z filed an answer, denying any liability and claiming that Cunningham was not in the course and scope of her employment at the time of the accident. Then, on April 19, 2012, A& Z filed a motion for summary judgment, contending that Thompson had signed a release that barred all claims of liability against A& Z and that Cunningham was driving her personal vehicle when the accident occurred. Thompson responded, arguing he had not released A& Z from liability, and the motion for summary judgment was premature because A& Z had not yet answered ...


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