NATIONWIDE MUTUAL INSURANCE COMPANY, NATIONWIDE MUTUAL FIRE INSURANCE COMPANY AND NATIONWIDE PROPERTY & CASUALTY INSURANCE COMPANY Petitioners
STATE OF MISSISSIPPI Respondent
EN BANC ORDER
MICHAEL K. RANDOLPH, CHIEF JUSTICE
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.
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
THEREFORE ORDERED that Nationwide's petition for
interlocutory appeal is granted.
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.
FURTHER ORDERED that the State is taxed with all costs of
RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND
PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE
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.
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
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.,