TARINIKA SMITH, INDIVIDUALLY AND ON BEHALF OF KAYDEN JOHNSON, DECEASED, SHELENA AUSTIN PREWITT, NATURAL MOTHER AND NEXT FRIEND OF XAVIER AUSTIN, A MINOR, JAKILA MARTIN, A MINOR, MARLO WATKINS, A MINOR, AND HELEN YANCY, A MINOR, LINDA CUNNINGHAM, GENERAL GUARDIAN AND NEXT FRIEND OF TREVIN MAYS, A MINOR, AND JERKISHA MAYS, A MINOR, CHRISTINE MAGEE, NATURAL MOTHER AND NEXT FRIEND OF MONSHANNA WESTON, BRENDA WOODARD, NATURAL MOTHER AND NEXT FRIEND OF BRENAE WOODARD, A MINOR, ANGELA CRAFT, NATURAL MOTHER AND NEXT FRIEND OF DEARYELL CRAFT, A MINOR, KAYTANA DILLARD, NATURAL MOTHER AND NEXT FRIEND OF RONISHA DILLARD, A MINOR, JERMAINE DILLARD, A MINOR, AND QUASHOUNTA DILLARD, A MINOR
CHURCH MUTUAL INSURANCE COMPANY AND ADLAI JOHNSON
OF JUDGMENT: 10/24/2016
MARSHALL COUNTY CIRCUIT COURT HON. JOHN KELLY LUTHER JUDGE
COURT ATTORNEYS: DRAYTON D. BERKLEY HARDIN CHASE PITTMAN
MARGARET ZIMMERMAN SMITH PAUL NORMAN DAVIS D. REID WAMBLE
MATTHEW RYAN MACAW
ATTORNEY FOR APPELLANTS: DRAYTON D. BERKLEY
ATTORNEYS FOR APPELLEES: MARGARET ZIMMERMAN SMITH PAUL NORMAN
DAVIS HARDIN CHASE PITTMAN
RANDOLPH, PRESIDING JUSTICE
The Marshall County Circuit Court entered an order dismissing
Adlai Johnson from the suit for Plaintiffs' failure to
timely serve him. Church Mutual Insurance Company
("Church Mutual") then moved to have the trial
court declare that Tennessee substantive law controlled the
case. After the trial court so declared, Church Mutual moved
for summary judgment based on Tennessee law prohibiting
direct actions against insurers for uninsured motorist
("UM") claims. The trial court then entered summary
judgment in favor of Church Mutual. Plaintiffs seek
interlocutory review of all three rulings. We find no error
in the dismissal of Johnson for Plaintiffs' failure to
serve. We further find no error with the trial court applying
Tennessee law to determine whether the contract provided UM
coverage to Plaintiffs. However, we find that the trial court
erred in applying Tennessee substantive law. We reverse those
judgments of the Marshall County Circuit Court and remand for
proceedings consistent with this opinion.
OF FACTS AND PROCEDURAL HISTORY
On April 28, 2013, Tarinika Smith and twelve minor children
(collectively Plaintiffs) were involved in an automobile
accident with a vehicle driven by Adlai
Johnson. Smith was operating a passenger van owned
by Mount Vernon Missionary Baptist Church (Mt. Vernon),
located in Rossville, Tennessee, which was transporting the
children. The accident occurred in Marshall County,
Mississippi. At the time of the collision, Smith was
pregnant. Plaintiffs and Johnson all are Tennessee residents.
However, Church Mutual's principal place of business is
in Wisconsin. Church Mutual issued a Commercial Automobile
Policy to Mount Vernon, insuring a fifteen-passenger church
van and a twelve-passenger church van. The agent for the
policy was located in Brentwood, Tennessee. Although the full
policy was not provided by either party, portions of the
commercial auto policy, including the Business Automobile
Declarations and the Tennessee Uninsured Motorists Coverage
Endorsement, were included. The policy limits were $1, 000,
000 in liability, $5, 000 in medical payments, $1, 000, 000
in uninsured/underinsured motorist coverage, and actual cash
value or cost of repair, whichever is less, for both
comprehensive and collision damage. Although the Tennessee
Uninsured Motorists Coverage Endorsement was provided, the
named insured, effective date, authorized representative, and
schedule of bodily injury portions were left blank.
The Tennessee Uninsured Motorists Coverage Endorsement reads
in pertinent part:
1. We will pay all sums the "insured" is legally
entitled to recover as compensatory damages from the owner or
driver of an "uninsured motor vehicle." The damages
must result from "bodily injury" sustained by the
"insured" or "property damage" caused by
an "accident." The owner's or driver's
liability for these damages must result from the ownership,
maintenance, or use of the "uninsured motor
2. With respect to damages resulting from an
"accident" with a vehicle described in Paragraph
(2) of the definition of "uninsured
motor vehicle," we will pay under this coverage only if
a. or b. below applies:
a. The limit of any applicable liability bonds or policies
have been exhausted by payments of judgments or settlements;
b. A tentative settlement has been made between the
"insured" and the insurer of an owner or operator
of a vehicle described in Paragraph (2) of
the definition of "uninsured motor vehicle" and we
have been given written notice of such tentative settlement
as described in Paragraph E.4.b.
portion of the policy further declares that an
"insured" is "anyone 'occupying' a
covered 'auto. . . .'" None of the exclusions
listed therein applies.
On June 15, 2015, Plaintiffs filed suit against Johnson and
Church Mutual, alleging Johnson caused the accident.
Plaintiffs sought damages for various injuries. Plaintiff
Smith additionally sought recovery for the wrongful death of
her "unborn quick child." On June 16, 2015,
Plaintiffs sent to Johnson, via U.S. certified mail, an
envelope with the circuit court's process for service on
him. It was not until August 11, 2015, however, that
Plaintiffs' counsel received notice from the U.S. Postal
Service that the envelope had been returned undelivered and
marked "unclaimed." As a result, Plaintiffs again
attempted service on Johnson in September 2015, but learned
in February 2016 that service had failed a second time. And
so, on March 14, 2016, Plaintiffs, via a process server,
tried to serve Johnson a third time. Plaintiffs' third
attempt ultimately was successful, with Johnson being served
on March 28, 2016 - 287 days after the filing of
In response to Plaintiffs' suit, Johnson moved to be
dismissed on April 29, 2016, citing Plaintiffs' failure
to timely serve him within the 120-day period prescribed by
Rule 4(h) of the Mississippi Rules of Civil Procedure.
Plaintiffs opposed Johnson's motion and argued for an
extension of time to serve him properly. Plaintiffs offered a
variety of reasons why Johnson was served beyond Rule
4(h)'s 120-day period - specifically, Plaintiffs
allocated fault to both their chosen process server and
Johnson. Plaintiffs, however, conceded that they were not
made aware service had failed through their server until
February 2016, which prompted their March 14, 2016, attempt.
Following argument on Johnson's motion, the circuit court
granted the motion under Rule 4(h) and dismissed Johnson
In June 2016, Church Mutual moved to declare Tennessee
substantive law controlled this action. Church Mutual argued
that, aside from the location of the accident, Mississippi
had no contacts with the parties or subject matter of the
action. Therefore, choice-of-law principles required
Tennessee law to be applied to the action.
The circuit court granted Church Mutual's motion and held
that Tennessee substantive law would govern all parties'
claims and defenses, save for Mississippi's "[R]ules
of the [R]oad." The circuit court specifically held:
This case arises from an automobile accident that occurred in
Marshall County, Mississippi on April 28, 2013. The location
of the accident was on Highway 72, just south of the
Tennessee border. All parties to this action are domiciled or
reside in Tennessee, with the exception of Church Mutual
Insurance Company, whose principal place of business is in
Wisconsin. Church Mutual insured the van driven by Plaintiff
Smith. The insurance policy was negotiated in Tennessee and
was to be substantially performed in Tennessee.
This Court finds Tennessee law controls plaintiffs'
contractual claims against Church Mutual. The place of
contracting as well as the place of negotiating the contract
was in Tennessee. The insured automobile was principally
garaged in Tennessee. This Court finds the place of
performance of the contract was substantially in Tennessee.
Therefore, under the Restatement (Second) of Conflict of Laws
sections 188 and 193, this Court finds Tennessee law
This Court finds Tennessee law controlling as to
plaintiffs' claims of negligence. Tennessee is
the common domicile of the plaintiffs and Defendant Johnson.
No party to this action is domiciled or resides in
Mississippi. Based on the facts presented to the Court, this
Court finds Tennessee has the most substantial relationship
with the parties involved. While the Court recognizes the
place of injury is Mississippi, this Court finds that fact
alone is not determinative as to which state's law
governs this dispute. See Mitchell v. Craft, 211
So.2d 509 (Miss. 1968); Restatement (Second) of Conflict of
Laws § 6. This Court finds Tennessee laws controlling as
to tort claims and recovery, and those Tennessee
laws are not repugnant to the laws and policies of
Mississippi. Regarding any issues involving Mississippi's
[R]ules of the [R]oad, this Court finds Mississippi law is
controlling. See Fells v. Bowman, 274 So.2d 109
In conclusion, the Court finds Tennessee law to be the proper
choice of law as to plaintiffs' claims of
negligence and as to any contractual claims
against Church Mutual.
Following the trial court's finding that Tennessee law
would apply to Plaintiffs' suit and because Johnson
previously had been dismissed from the underlying suit,
Church Mutual moved for summary judgment, arguing that
Tennessee law did not allow Plaintiffs to bring a direct
action against a UM carrier, absent specific circumstances.
The circuit court agreed, and on October 24, 2016, dismissed
all Plaintiffs' claims against Church Mutual without
Plaintiffs sought interlocutory relief from this Court.
Specifically, Plaintiffs appealed the circuit court's
orders dismissing Johnson from the suit and finding Tennessee
substantive law controlling, before granting summary judgment
to Church Mutual. This Court granted Plaintiffs interlocutory
review and stayed all further proceedings of the circuit
"The standard of review for a trial court's grant or
denial of a motion to dismiss is de novo." Long v.
Vitkauskas, 228 So.3d 302, 304 (Miss. 2017). As to
issues of service of process, this Court reviews the trial
court's findings of fact for an abuse of discretion.
Id. at 304. And for questions of law, such as which
state's law applies to issues before this Court, our
standard of review is de novo. McAdams v. Perkins,
204 So.3d 1257, 1261 (Miss. 2016).
Dismissal of Adlai Johnson
Rule 4(h) of the Mississippi Rules of Civil Procedure reads:
If a service of the summons and complaint is not made upon a
defendant within 120 days after the filing of the complaint
and the party on whose behalf such service was required
cannot show good cause why such service was not made within
that period, the action shall be dismissed as to that
defendant without prejudice upon the court's own
initiative with notice to such party or upon motion.
Mississippi Rule of Civil Procedure 4(h) mandates that a
complaint be dismissed if service of process is not effected
within 120 days of the filing of the complaint and good cause
cannot be shown for failure to do so. The rule has been
interpreted to provide that "a plaintiff must serve a
defendant with process within 120 days or show good
cause why service was not made." Watters v.
Stripling, 675 So.2d 1242, 1243 (Miss. 1996) (emphasis
added). The rule has also been interpreted to require that,
if the defendant is not served within 120 days, the plaintiff
must either refile the complaint before the statute of
limitations ends or show good cause; otherwise, dismissal is
proper. Id. at 1244. "To establish 'good
cause' the plaintiff must demonstrate 'at least as
much as would be required to show excusable neglect, as to
which simple inadvertence or mistake of counsel or ignorance
of the rules usually does not suffice.'" Peters
v. United States, 9 F.3d 344, 345 (5th Cir. 1993)
(quoting Systems Signs Supplies v. U.S. Dep't of
Justice, 903 F.2d 1011, 1013 (5th Cir. 1990) (cited
favorably in Bang v. Pittman, 749 So.2d 47, 51
(Miss. 1999), and Watters, 675 So.2d at 1243)).
Webster v. Webster, 834 So.2d 26, 27-28 (Miss.
The record reflects that Plaintiffs filed their complaint on
June 15, 2015. Under the rule, the 120-day period to
effectuate service on Johnson expired on October 13, 2015.
Because service was not made upon Johnson by October 13,
2015, Plaintiffs failed to satisfy the first prong of the
Rule 4(h) inquiry. As a result, Plaintiffs' only recourse
under Rule 4(h) was to establish "good cause."
See M.R.C.P. 4(h).
This Court has held that "good cause is likely (but not
always) to be found when the plaintiff's failure to
complete service in timely fashion is a result of the conduct
of a third person, typically the process server."
Holmes v. Coast Transit Auth., 815 So.2d 1183, 1186
(Miss. 2002) (citations omitted). A plaintiff also may show
"good cause" if "the defendant has evaded
service of process or engaged in misleading conduct, the
plaintiff has acted diligently in trying to effect service or
there are understandable mitigating circumstances. . .
In an attempt to establish good cause, Plaintiffs argue that
Johnson willfully evaded service. But Plaintiffs provide no
evidence proving his alleged evasion, and the record is
devoid of the same. Moreover, Plaintiffs were not diligent in
serving Johnson, for Plaintiffs concede that they took no
action as to the status of their service of process between
the first week of October 2015 and February
2016-approximately four months. This four-month period
extended beyond the original 120-day period. Due to
Plaintiffs' lack of diligence, lack of proof of
Johnson's willful evasion, and lack of any other
mitigating circumstances warranting relief, we conclude that
they failed to establish "good cause."
Additionally, Plaintiffs did not file their motion for
extension of time until May 20, 2016-some 220 days after the
expiration of their 120-day period, and 340 days after the
filing of their complaint. Plaintiffs' motion for an
enlargement of time to serve Johnson was made only
after Johnson had filed his motion to dismiss
Plaintiffs' claims against him on April 29, 2016. The
circuit court analyzed Plaintiffs' claims under Rule 6(b)
and denied their motion for an extension. Pursuant to Rule
When by these rules or by notice given thereunder or by order
of court an act is required or allowed to be done at or
within a specified time, the court for cause shown may at any
time in its discretion . . . upon motion made after the
expiration of the specified period permit the act to be done
where failure to act was the result of excusable neglect. . .
M.R.C.P. 6(b). "This Court has held that the standards
for deciding whether a plaintiff has demonstrated 'good
cause' under Rule 4(h) and 'excusable neglect'
under Rule 6(b)(2) are virtually identical." Collins
v. Westbrook, 184 So.3d 922, 932 (Miss. 2016) (citing
Watters, 675 So.2d at 1244). Finding no good cause,
we likewise find no excusable neglect. We find no error as to
this ruling and affirm the dismissal of Johnson without
Choice of Law
The following principles are to be considered in our
First, the law of a single state does not necessarily control
every issue in a given case. We apply the center of gravity
test to each question presented, recognizing that the answer
produced in some instances may be that the law of this state
applies and on other questions in the same case the
substantive law of another state may be enforceable. We note
that Fells v. Bowman, 274 So.2d 109 (Miss. 1973) has
recognized that this Court is not necessarily required
"to apply the law of a single state to every facet of
the case." 274 So.2d at 112. See also Vick v.
Cochran, 316 So.2d 242, 246 (Miss. 1975).
Second, we recognize that there will be cases where, applying
the center of gravity doctrine, we might conclude in the
first instances that the law of another state should be
applied. Where that law is contrary to the deeply ingrained
and strongly felt public policy of this state, however, we
have recognized that we may nevertheless apply and enforce
this state's positive ...