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McCarver v. Bogan

Court of Appeals of Mississippi

January 14, 2020

RICHARD AND CYNTHIA McCARVER APPELLANTS
v.
RICHARD L. BOGAN AND GOVERNMENT EMPLOYEES INSURANCE COMPANY APPELLEES

          MARSHALL COUNTY CIRCUIT COURT, HON. ANDREW K. HOWORTH, TRIAL JUDGE

          ATTORNEYS FOR APPELLANTS: JOHN THOMAS LAMAR III TAYLOR ALLISON HECK

          ATTORNEYS FOR APPELLEES: WILTON V. BYARS III DAVID EARL ROZIER JR. JENESSA JO CARTER HICKS MARK CHRISTOPHER WOODS

         EN BANC

          GREENLEE, J.

         ¶1. Richard McCarver (McCarver) was injured in an accident when another vehicle driven by Richard Bogan (Bogan) crossed the center line. McCarver and his wife, Cynthia, [1]filed suit in the Marshall County Circuit Court against Bogan. In the complaint, the McCarvers alleged that Bogan was liable for unpaid property damage and bodily injury claims arising out of the accident. The McCarvers later amended their complaint to include their insurer, GEICO, as a defendant under an underinsured-motorist-coverage claim. After three months of discovery, Bogan filed a motion for summary judgment under Rule 56 of the Mississippi Rules of Civil Procedure, stating McCarver had accepted a settlement check from Bogan's insurer that read "full and final settlement" of "any and all" claims "for bodily injury." GEICO joined his motion and supplemented a response. After a hearing on the motion, the circuit court granted Bogan's summary judgment motion and entered judgment, ruling that an accord and satisfaction had occurred. On appeal, the McCarvers argue the circuit court erred in granting summary judgment. Finding error, we reverse and remand this matter for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On August 22, 2014, Bogan was involved in a head-on collision with McCarver when Bogan crossed into McCarver's traffic lane. Bogan was insured by Allstate. McCarver's insurance was with GEICO. Under the GEICO policy, McCarver had uninsured and underinsured motorist coverage. Because of it, GEICO paid McCarver the base value of McCarver's vehicle.[2] McCarver called Allstate, Bogan's insurer, claiming to their adjustor that he had not been reimbursed in full for his property damage. Specifically, McCarver sought payments for loss of rebate, the increased down payment on his new vehicle, and specific items he had added to his vehicle prior to the accident, such as window tint and a toolbox. The Allstate adjustor informed McCarver that Allstate was not responsible for the rebate loss or the additional down payment.

         ¶3. Following their conversation, the adjustor visited McCarver at his body shop on or around October 8, 2014. There, the adjustor issued McCarver a check in the amount of $2, 160.00 that included a notation in the upper left-hand corner that stated "full and final settlement" of "any and all" claims "for bodily injury." A copy of the check is pictured in the appendix below. McCarver cashed the check five days later on October 14, 2014. The parties dispute what was said before and at the time the check was issued to McCarver. The McCarvers claim the $2, 160.00 check was the result of "an agreement regarding the additional items McCarver had purchased for his truck [prior to the accident]." Bogan contests that the check was negotiated "to settle McCarver[']s bodily injury claim[s]."

         ¶4. However, Allstate's financial log evinces six additional checks that Allstate issued to various payees for McCarver's benefit because of the automobile accident. The second, third, fourth, and fifth checks were issued on October 9, 2014. The second check paid McCarver in the amount of $214.00. The parties fail to mention this check in their briefs. According to the financial log, however, the transactional reason for the check was "property damage liability." The third, fourth, and fifth checks were issued to various medical providers to pay for McCarver's immediate medical expenses.[3] Allstate reimbursed GEICO by the sixth check in February 2015 in the amount of $24, 786.00 for damage to McCarver's vehicle. The seventh (and final) check from Allstate was issued on August 12, 2015, to Methodist Hospital for $11, 737.40 to pay for McCarver's additional medical bills.

         ¶5. On April 26, 2017, the McCarvers filed suit in Marshall County Circuit Court against Bogan for unpaid property damage and bodily injury claims. According to the McCarvers' complaint, McCarver was driving north on Highway 309 in Marshall County, and Bogan was driving south. McCarver claimed that without warning "[Bogan] recklessly crossed over into [McCarver's] lane of travel and struck [McCarver's] vehicle head on." The McCarvers alleged that Bogan's negligence caused McCarver property damage, personal injury, and pain and suffering; and Cynthia alleged loss of consortium. On January 5, 2018, the McCarvers amended their complaint to add their insurer, GEICO, due to its underinsured motorist coverage because it was learned during discovery that Bogan's automobile-liability-insurance policy limit was for only $25, 000.00.[4] Bogan answered on January 23, 2018, and GEICO answered on January 29, 2018. Discovery proceeded for the next three months.

         ¶6. On April 26, 2018, Bogan moved for summary judgment, relying on the notation listed on the front of the first check. According to Bogan, the check constituted an accord and satisfaction, thus barring the McCarvers from seeking additional funds from Bogan. On May 16, 2018, GEICO joined and supplemented Bogan's summary judgment motion. The McCarvers responded in opposition on July 6, 2018, and asserted that Bogan and GEICO's proof failed to satisfy the elements of an accord and satisfaction. In support of their argument, McCarver attached an affidavit that read in part:

After the payoff, my wife and I called the adjustor for Allstate and informed him that we had additional property damages that were not reflected in the base value of the truck paid off by GEICO. Specifically, the loss of the rebate, the increased down payment, tinted windows, and a toolbox.
The Allstate adjustor informed me that Allstate was not responsible for the rebate loss and the additional down payment. However, the adjuster did come to my body shop and give me a check for $2, 160.00, which the adjustor represented was for my additional property damage, like the tinted windows, and the toolbox.
I never discussed my claims for bodily injury with the Allstate adjustor. All of our discussions were about my additional property damage only. At no time did we discuss any payment and/or settlement for my bodily injury claims.

         ¶7. On June 25, 2018, the court held a hearing on Bogan and GEICO's joint summary- judgment motion. At the hearing, the circuit court judge expressed reservation in granting Bogan's motion. The parties and the judge noted it was odd that McCarver was not required to sign a release at the time the $2, 160.00 settlement check was given to McCarver. The judge also pointed out that Bogan had failed to locate the Allstate adjustor who dealt with and spoke with McCarver concerning McCarver's claim before and at the body shop. No affidavit on the adjustor's version of the facts was tendered to the court.[5] The judge also struggled with the decision because the parties had not yet taken depositions in the case.

         ¶8. But, without further proceedings, the circuit court granted Bogan and GEICO's joint motion for summary judgment on October 17, 2018. The McCarvers appeal to this Court. The McCarvers claim that summary judgment was in error. We agree. At that stage of the proceedings, the motion should have been denied.

         STANDARD ...


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