DEONNA STROUD, INDIVIDUALLY AND FOR AND ON BEHALF OF DAVID STROUD, A NON COMPOS MENTIS APPELLANT
PROGRESSIVE GULF INSURANCE COMPANY, VIRGINIA M. CONN, AND JENNIFER GUZMAN APPELLEES
COUNTY CIRCUIT COURT HON. ROBERT P. KREBS
ATTORNEY FOR APPELLANT: WAYNE E. FERRELL JR.
ATTORNEYS FOR APPELLEES: GINNY Y. KENNEDY WADE G. MANOR CECIL
GRIFFIS, P.J., CARLTON, WILSON AND GREENLEE, JJ.
David Stroud was engaged in the business of hauling
miscellaneous items and towing vehicles. In April 2010,
either David or his wife, Deonna, contacted the Conn
Insurance Agency, owned by Virginia Conn, to obtain
"cargo coverage" required for David's
business.The Conn Agency sells Allstate insurance
and has an Allstate sign, and the Strouds had a policy with
Allstate; however, Allstate did not offer "cargo
coverage" of the type they requested, so an employee of
the Conn Agency, Jennifer Guzman,  obtained a policy through
Progressive Gulf Insurance Company instead. In June 2010,
David picked up a trailer in Ohio to deliver to a customer in
Montana. Somewhere between Ohio and Montana, the trailer
collided with a tree limb, and David's cargo was damaged.
David submitted a claim to Progressive, but on July 15, 2010,
Progressive notified David and his attorney that it had
denied his claim, which eventually gave rise to the instant
Although the applicable statute of limitations is three
years, Deonna filed suit, purportedly on behalf of David,
three years and seventeen days after Progressive
denied coverage. Deonna alleges that the statute of
limitations was tolled because David has been non compos
mentis since 2003 as a result of a fall and injuries
that he sustained that year. The circuit court granted
summary judgment for all defendants because it concluded that
there was no genuine issue of material fact and that the
statute of limitations had run. We likewise conclude that the
defendants were entitled to judgment as a matter of law based
on the statute of limitations. Therefore, we affirm.
AND PROCEDURAL HISTORY
In April 2010, David or Deonna (see supra n.1)
contacted the Conn Agency to obtain "mandatory cargo
coverage" for David's "hauling business."
David was engaged in the business of hauling
"miscellaneous items" and towing vehicles in a
truck and trailer. David or Deonna spoke to Guzman. David had
Allstate insurance, but Guzman stated that Allstate did not
offer the requested coverage. Guzman sent the Strouds
applications for insurance and later told them that she had
obtained the requested coverage through Progressive. A
Progressive policy was issued to David as the named insured.
In June 2010, David was hauling cargo of some sort from Ohio
to a customer in Montana. As he was driving, the trailer he
was hauling came into contact with a tree branch, and its
cargo was damaged. He reported the collision to Conn/Guzman
and Progressive, and Progressive investigated David's
claim. On July 15, 2010, Progressive informed David that his
claim was denied based on an exclusion in the policy.
On August 1, 2013, Deonna, purportedly on behalf of David,
filed suit in the Jackson County Circuit Court against
Progressive, Allstate, Conn, and Guzman. Deonna alleged that
she filed the suit on behalf of David because he was a person
non compos mentis, i.e., of unsound mind. The complaint
demanded actual damages of $500, 000 and punitive damages of
$2, 000, 000 based on allegations that the defendants
negligently or willfully failed to obtain the requested
coverage and denied the claim in bad faith. Each
defendant's answer asserted the statute of limitations as
On February 14, 2014, Progressive filed a motion for summary
judgment arguing that the applicable three-year statute of
limitations, Miss. Code Ann. § 15-1-49 (Rev. 2012),
on July 15, 2013, before the Strouds filed their complaint.
Allstate subsequently filed a motion for summary judgment
based on the same statute of limitations. Allstate also
argued that it was entitled to summary judgment because it
did not issue the policy and had no connection to it. Conn
and Guzman joined Progressive's and Allstate's
In response, the Strouds did not dispute that section 15-1-49
provides the applicable statute of limitations. Nor did they
dispute that their complaint was filed more than three years
after Progressive denied their claim. Rather, they argued
that Mississippi Code Annotated section 15-1-59 (Rev. 2012)
tolled the statute of limitations because David was a person
"under the disability of . . . unsoundness of mind"
(i.e., non compos mentis) at all times relevant to his claim.
They alleged that David's non compos mentis status arose
from head and brain injuries that he suffered in 2003 when he
fell approximately thirty feet from the roof of a house.
At a hearing on May 29, 2014, the circuit judge sua sponte
raised the issue of Deonna's standing to file suit on
David's behalf given that she had never been appointed as
his conservator. Following the hearing, the judge entered an
order staying the case to allow Deonna to initiate
proceedings to be appointed as David's conservator.
Deonna petitioned the Walthall County Chancery Court to be
appointed as David's conservator. Her petition attached
affidavits from two physicians, and at a brief hearing on the
petition, she and David both testified that she should be
appointed as his conservator. On October 6, 2014, the
chancery court entered an order appointing Deonna as
conservator of David's person and estate. The Strouds
then filed a motion in circuit court for partial summary
judgment on the statute of limitations issue.
On March 3, 2016, the circuit court held a hearing on the
motions for summary judgment and partial summary judgment.
The Strouds relied on the affidavits of Deonna and two
physicians and the petition, order, and transcript in the
conservatorship proceeding. The defendants argued that the
Strouds failed to present competent evidence that David was
non compos mentis at any time between July 15, 2010, and
August 1, 2013.
At the conclusion of the hearing, the circuit judge announced
from the bench that he would grant all defendants'
motions for summary judgment, and he subsequently entered
orders to that effect. The court ruled that the statute of
limitations had run as to all defendants because the Strouds
could not establish David's lack of capacity so as to
toll the statute of limitations. The court also ruled that
Allstate was entitled to summary judgment because the
relevant insurance ...