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Nationwide Mutual Insurance Co. v. State

Supreme Court of Mississippi

September 17, 2019

NATIONWIDE MUTUAL INSURANCE COMPANY, NATIONWIDE MUTUAL FIRE INSURANCE COMPANY AND NATIONWIDE PROPERTY & CASUALTY INSURANCE COMPANY Petitioners
v.
STATE OF MISSISSIPPI Respondent

          EN BANC ORDER

          MICHAEL K. RANDOLPH, CHIEF JUSTICE

         Now before the Court is Nationwide's petition for interlocutory appeal and the State's answer in opposition. Nationwide seeks leave to appeal the order of the Circuit Court of the First Judicial District of Hinds County, No. 25CI1:18-cv-00215-TTG, dated June 6, 2019, which denied entry of the parties' agreed scheduling order and gave notice of the trial court's intent to appoint a special master. After due consideration, we find that the petition is well taken and should be granted.

         We further find that no further briefing is needed to render a decision. The appointment of a special master in Homeowner Assistance Program (HAP) cases pending before Judge Green in Hinds County has been addressed by this Court in two other cases: Safeco Insurance Co. of America v. State, No. 2017-IA-01554-SCT, 2019 WL 3955084 (Miss. Aug. 22, 2019) and Liberty Mutual Insurance Co. v. State, No. 2017-IA-1558-SCT, 2019 WL 3954808 (Miss. Aug. 22, 2019). Under our rulings in those cases, we vacate the circuit court's June 6, 2019, Notice of Court's Intent appointing the special master and remand this case to the trial court for further proceedings consistent with this order.

         IT IS THEREFORE ORDERED that Nationwide's petition for interlocutory appeal is granted.

         IT IS FURTHER ORDERED that the circuit court's Notice of Court's Intent to Appoint Bobby Harges as special master, No. 25CI1:18-cv-00215-TTG, dated June 6, 2019, is vacated. This case is remanded to the trial court for proceedings consistent with this order. The notice of appeal having been deemed filed, the filing fee is due and payable to the Clerk of this Court.

         IT IS FURTHER ORDERED that the State is taxed with all costs of this appeal.

         SO ORDERED.

          AGREE: RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ.

          KING, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

         ¶1. As I argued in my dissent in Safeco Insurance Co. of America v. State, No. 2017-IA- 01554-SCT, 2019 WL 3955084 (Miss. Aug. 22, 2019), I do not believe that the appointment of a special master was an abuse of discretion; instead of reversing the docket entry notifying the parties of the intent to appoint a special master, I would remand the case to the trial court to file the more specific order regarding the special master's duties mentioned in its docket notification, while cautioning the trial court that it should not in that order allow the ex parte communications and blind billing provisions that were placed in the special master orders in Safeco and Liberty Mutual Insurance Co. v. State, No. 2017-IA-1558-SCT, 2019 WL 3954808 (Miss. Aug. 22, 2019). The majority, however, finds that the trial court abused its discretion without even allowing it the opportunity to file its specific order regarding the special master.

         ¶2. In Safeco, this Court held that Mississippi Rule of Civil Procedure 53 does not allow a judge to appoint a special master because that judge has a crowded docket or is faced with a particular type of complex case. Yet nothing in Rule 53 prohibits a trial judge from doing so. Rule 53 states that, when the parties do not consent to a special master, "a reference shall be made only upon a showing that some exceptional condition requires it." Miss. R. Civ. P. 53(c). This Court has held that "we will not assume that a trial judge of this state would issue an order of reference without some exceptional condition requiring it." Massey v. Massey, 475 So.2d 802, 806 (Miss. 1985). In Safeco and Liberty Mutual, the trial court did point to its heavy docket, and it also justified the appointment of a special master by "the complex issues involved in this case and the numerous pre-trial and discovery disputes filed and anticipated[.]" Indeed, the "complexity of modern civil litigation" is one reason attributed to the increasingly common nature of special master appointments. 2 Jeffrey Jackson et al., Miss. Practice Series: Civil Procedure § 26:1 (updated May 2019), Westlaw. "The rules governing civil practice in Mississippi and elsewhere are bottomed on three values: justice, speed and economy. . . . In some cases, special masters can assist the court by improving the quality of fact finding through more investigation of complex issues and the lending of the master's expertise to the court." Id. (citing Miss. R. Civ. P. 1). Furthermore, the trial court is in the best position to determine whether complexities in a case are sufficiently exceptional to warrant reference to a special master. Miss. Power Co. v. Miss. Pub. Serv. Comm'n, 135 So. 3d 887, 891 (Miss. 2014). Thus, I would find that the trial court's notification of its intent to appoint a special master via docket entry was not an abuse of discretion, particularly because the trial court was not afforded the opportunity to issue an order giving its reasons for appointing a special master and outlining the special master's duties.

         ¶3. Rule 53 allows a court the discretion to grant a special master powers that are either broad or narrow in nature.

The order of reference to the master may specify or limit his powers and may direct him to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearing and for the filing of the master's report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters embraced in the reference . . . .

Miss. R. Civ. P. 53(d) (emphasis added). Rule "53(d) does not require that the order specify or limit the powers of the master, but only provides that the order 'may' do so; otherwise, the powers of the master are broad." Massey, 475 So.2d at 806. Special masters have even conducted the trial on the merits. See, e.g., Loggers, ...


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