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Appellant v. Liberty Mutual Fire Insurance Co.

Court of Appeals of Mississippi

November 20, 2018

KIMBERLEE WILLIAMS APPELLANT
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY OR LIBERTY MUTUAL GROUP INC. APPELLEE

          DATE OF JUDGMENT: 12/05/2016

          DESOTO COUNTY CIRCUIT COURT HON. ROBERT P. CHAMBERLIN TRIAL JUDGE

          ATTORNEY FOR APPELLANT: DRAYTON D. BERKLEY

          ATTORNEY FOR APPELLEE: CLIFFORD KAVANAUGH BAILEY III

          BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.

          TINDELL, J.

         ¶1. On appeal, this Court is tasked with the interpretation and use of Tennessee law in a Mississippi court. Tennessee resident Kimberlee Williams seeks in Mississippi what she cannot legally obtain in Tennessee. Although Williams's appeal only concerns her insurer, Liberty Mutual, this controversy began in 2011 with an automobile accident in Tennessee between two Tennessee residents, Williams and Lindsey Stafford.

         ¶2. Williams alleged Stafford caused her damages. Stafford has $25, 000 in liability insurance. Williams, on the other hand, has $100, 000 in uninsured motorists (UM) coverage under her Liberty Mutual policy. Williams filed suit against Stafford and Liberty Mutual in the DeSoto County Circuit Court.

         ¶3. Williams argues that, due to Stafford's status as an underinsured motorist, Liberty Mutual is liable to her for damages under the UM provisions of her Liberty Mutual insurance policy. Liberty Mutual counters Williams's arguments with two points. First, Williams was unable to obtain personal jurisdiction over Stafford in Mississippi and, as such, allowed the statute of limitations in Tennessee to lapse. Thus, Williams no longer has a legal right to recover from Stafford in either Tennessee or Mississippi. Second, to trigger coverage for Williams under her Tennessee UM insurance rider, the policy terms require a legal right to recover against the underinsured[1] driver. Thus, without a right to recover from Stafford, Liberty Mutual has no obligation to pay UM benefits to Williams.

         ¶4. The circuit court granted summary judgment to Liberty Mutual, agreeing with Liberty Mutual that without the legal entitlement to recover from Stafford, Williams is without the right to recover UM benefits from Liberty Mutual. Williams appealed. The overriding issue on appeal is whether under Tennessee law an insured can bring a direct action against one's own UM benefits carrier when the insured no longer has a viable legal claim against an underinsured driver. This Court affirms the circuit court's grant of summary judgment.

         FACTS

         ¶5. Liberty Mutual issued an automobile policy to Williams providing $100, 000 in UM bodily benefits per person. The policy was issued to Williams in Tennessee and included a Tennessee UM insurance rider. On December 15, 2011, Williams and Stafford were involved in an automobile accident in Tennessee. Both Williams and Stafford were Tennessee residents. On December 17, 2012, Williams filed suit against Stafford in the DeSoto County Circuit Court. Williams alleged Stafford negligently caused the accident and claimed that Stafford was a Mississippi resident.

         ¶6. One hundred and twenty days after filing suit, Williams had not yet served Stafford. However, on April 26, 2013, the circuit court granted Williams an additional 120 days to serve Stafford (until August 2013). In May 2013, Williams first served Stafford with the summons and complaint in Tennessee. Stafford appeared in the case and moved to dismiss for lack of personal jurisdiction. Stafford argued that she was a Tennessee resident and that the circuit court lacked personal jurisdiction over her. In September 2013, Williams amended her complaint to add Liberty Mutual, seeking to recover UM benefits, and asserted a bad faith extra-contractual claim. Liberty Mutual responded with a motion to dismiss based on the doctrine of forum non conveniens.

         ¶7. Stafford's motion to dismiss was set for September 9, 2013. Stafford appeared in the circuit court on an unrelated criminal matter on that day. At Stafford's appearance in the criminal matter, Williams served Stafford with process in Mississippi. The hearing on Stafford's motion to dismiss was continued, and both Stafford's and Liberty Mutual's motions were heard on November 18, 2013. The circuit court granted both motions, dismissing the complaint against Stafford for lack of personal jurisdiction, [2] and dismissing the complaint against Liberty Mutual without prejudice. The circuit court based Liberty Mutual's dismissal on forum non conveniens, subject to the stipulation that Liberty Mutual waive its statute-of-limitations defense if Williams refiled her action in another forum. Williams did not refile suit against Liberty Mutual or Stafford in Tennessee or another forum. She appealed the dismissals, and that appeal was determined by this Court.[3]

         ¶8. Upon remand, Liberty Mutual filed a motion for summary judgment arguing that Williams's failure to serve Stafford prior to the running of the applicable one-year Tennessee statute of limitations precluded Williams from receiving UM benefits because, under Tennessee law and pursuant to the terms of the Liberty Mutual UM policy, Williams was no longer "legally entitled to recover" against Stafford. The circuit court granted Liberty Mutual's motion and issued summary judgment in favor of Liberty Mutual. The circuit court based its judgment on the application of the Tennessee UM statute, the Tennessee statute of limitations for personal injuries, and Tennessee case law. Tenn. Code Ann. §§ 28-3-104(a) (Supp. 1993) & 56-7-1201 (Supp. 1993); Winters v. Jones, 932 S.W.2d 464, 465 (Tenn. Ct. App. 1996); Gafford v. Caruthers, 91C-2709, 1994 WL 420917, at *2 (Tenn. Ct. App. Aug. 12, 1994). Williams appeals.

         STANDARD ...


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