Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Stroud v. Progressive Gulf Insurance Company

Court of Appeals of Mississippi

September 19, 2017

DEONNA STROUD, INDIVIDUALLY AND FOR AND ON BEHALF OF DAVID STROUD, A NON COMPOS MENTIS APPELLANT
v.
PROGRESSIVE GULF INSURANCE COMPANY, VIRGINIA M. CONN, AND JENNIFER GUZMAN APPELLEES

         DATE OF JUDGMENT: 04/15/2016

         JACKSON COUNTY CIRCUIT COURT HON. ROBERT P. KREBS

          ATTORNEY FOR APPELLANT: WAYNE E. FERRELL JR.

          ATTORNEYS FOR APPELLEES: GINNY Y. KENNEDY WADE G. MANOR CECIL MAISON HEIDELBERG

          BEFORE GRIFFIS, P.J., CARLTON, WILSON AND GREENLEE, JJ.

          WILSON, J.

         ¶1. 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.[1]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, [2] 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 lawsuit.

         ¶2. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶3. 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.

         ¶4. 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.

         ¶5. 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 a defense.

         ¶6. 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), [3] ran 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 motions.

         ¶7. 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.

         ¶8. 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.

         ¶9. 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.

         ¶10. 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.

         ¶11. 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.