Jean J. Blackledge v. Omega Insurance Company ( 1998 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 98-CA-00380-SCT
JEAN J. BLACKLEDGE
v.
OMEGA INSURANCE COMPANY
DATE OF JUDGMENT: 02/06/1998
TRIAL JUDGE: HON. ROBERT LOUIS GOZA, JR.
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: DWIGHT HOOD
CRYMES G. PITTMAN
C. VICTOR WELSH, III
ATTORNEYS FOR APPELLEE: CHARLES GREGORY COPELAND
PATRICIA H. COTTINGHAM
GREGORY L. KENNEDY
NATURE OF THE CASE: CIVIL - INSURANCE
DISPOSITION: AFFIRMED - 08/12/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 09/02/1999
EN BANC.
MILLS, JUSTICE, FOR THE COURT:
STATEMENT OF THE FACTS
¶1. This appeal centers entirely upon the interpretation of certain undefined terms under an insurance
contract between appellee, Omega Insurance Company (Omega), and appellant, Jean J. Blackledge. On
September 21, 1994, Omega issued a dwelling policy for residential rental property to Blackledge for a
house located on 160 Shady Lane Street (later known as Mary Myles Road) in Brandon, Mississippi. Ms.
Blackledge had rented out this property, but was not receiving payment from her tenant. When she visited
the dwelling to speak with the lessee, she found massive damage to the home. On February 3, 1995,
appellant made a report to the Rankin County Sheriff's Office concerning the devastation. The investigator's
report listed the damage to the house:
This investigator observed holes in the Sheetrock walls, two exterior doors removed and the wooden
front porch was torn off and missing. This investigator also observed that defecation was strewn
throughout the house and all the windows were broken out. The exterior corner molding was torn off
and destroyed. The bottom edge of the exterior shingles were broken off and missing. Also noted
missing was the hot water heater. The carpet throughout the house was pulled up, defecated on and
destroyed.
"Destruction of Private Property!"
¶2. The investigation led by Deputy Greg Ecklund yielded no witnesses to the interior damage nor was an
actual date of the destruction established as Blackledge had not inspected her property since before the
previous Christmas. Statements by some of the neighbors indicate:
These people occupied the premises for months. They were selling drugs. They would stand in the
front yard and yell at traffic passing along the street. . . . They were constantly gathered together
disturbing the peace and acting in a loud and boisterous manner. They were causing a lot of trouble.
Residents of the neighborhood could not rest. You could not sleep because of the noise they were
making. . . . When responding to the complaints, law enforcement would drive up, and these people
would scatter to the woods. When the police left, they would immediately come back to the premises.
¶3. By a letter dated February 2, 1995, Blackledge made a claim for damages to Omega. She contends
that her claim falls under the extended coverage of her policy, specifically as a "civil commotion" and under
other applicable provisions. Omega subsequently denied this claim on March 1, 1995.
¶4. On February 3, 1997, Omega filed its complaint for Declaratory Judgment alleging that the insurance
policy owned by Ms. Blackledge did not cover damage done to her property on or about January 31,
1995. Omega contended that the damage to Blackledge's property was the result of burglary, vandalism, or
malicious mischief, which was not covered under the policy. Conversely, Blackledge contended that the
damage was the result of a riot or civil commotion which would be covered by her policy. Omega
subsequently filed its motion for Summary Judgment which was granted on February 11, 1998 after a
finding that there was no issue of material fact as to the language of the coverage under the insurance policy.
Blackledge appeals to this Court, assigning as error,
I. WHETHER THE TRIAL COURT JUDGE PROPERLY GRANTED DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT CONCERNING THE INSURANCE
COVERAGE ISSUE.
¶5. We have continually held that Summary Judgment under Rule 56 M.R.C.P. cannot be proper when a
genuine issue of material fact exists. Brown v. Credit Center, Inc., 444 So. 2d 358 ( Miss. 1983); Owen
v. Pringle, 621 So. 2d 668 (Miss. 1993). However, the rule itself demands diligence upon the part of the
nonmoving party. An "adverse party may not rest upon the mere allegations or denials of his pleadings. . ."
M.R.C.P. 56 (e), and the nonmover "must establish a genuine issue of material fact by means allowable
under the Rule." Lyle v. Mladinich, 584 So. 2d 397, 398 (Miss. 1991). When this Court is faced with an
appeal of summary judgment, we must review the evidence de novo. Allen v. Mac Tools, Inc., 671
So. 2d 636 (Miss. 1996).
¶6. Appellant asserts that without a legally recognized definition of the terms riot and civil commotion, that a
genuine issue must exist. This premise is a weak defense and is not necessarily true. Courts are often
charged with interpreting enigmatic areas within the law. This is the primary function of the judicial branch.
Though clearly written statutes are preferred, in the absence of such, we, as judges, must apply consistent
legal principles bound by common sense. The trial judge in the case sub judice did not have to define the
elements of a riot. He merely was faced with determining whether or not there had actually been one. In
coming to his conclusion, the judge reviewed the evidence before him and found that Ms. Blackledge had
failed to establish that anything other than malicious mischief or vandalism had taken place. Our task,
however, is not so simple. This Court must determine what exactly a riot or civil commotion is, so that we
then may review the court below and determine if error was indeed committed.
¶7. When terms in an insurance contract are ambiguous, the interpretation of those terms falls to the court.
McFarland v. Utica Fire Ins. Co., 814 F. Supp. 518 (S.D. Miss. 1992). This is so because holders of
insurance policies are not expected to be "word-smiths, schooled in the craft of lexicology," and because
the law disfavors "subtle definitions of common words which but promise to confuse even the educated and
frustrate the unlearned." Id. at 525. When we determine the meaning of these words, we have held that
"terms used in an insurance policy should be understood in their plain, ordinary, and popular sense rather
than in a philosophical or scientific sense." Hart v. North Am. Accident Ins. Co., 154 Miss. 400, 405,
122 So. 471, 472 (1929). In the case sub judice, we have two lay opinions in evidence which should
indicate the ordinary interpretation of the word. Undersheriff Pennington testified that he was very familiar
with the neighborhood in question and knew of no riots. Additionally, Deputy Ecklund testified that his
investigation did not reveal any evidence of a riot or civil commotion. Certainly these members of law
enforcement, whose job it is to quell civil unrest, would recognize a riot if one did in fact occur. It is not
enough for us, however, to say that we know a riot when we see it. We must attempt to define the term to
avoid further confusion.
¶8. Various definitions of riot abound in American jurisprudence and elsewhere. Mississippi, however, has
a dearth of case law in this area. Though certainly not binding upon us, we think it wise to consult the
ultimate authority, English common law, from whence the term originated. Hawkins in his Pleas to the
Crown defines a riot as:
A tumultuous disturbance of the peace by three or more persons assembling together of their own
authority, with an intent mutually to assist one another against any one who shall oppose them in the
execution of some enterprise of a private nature, and afterward actually executing the same in a violent
and turbulent manner, to the terror of the people, whether the act itself was lawful or unlawful.
Id. cited in Walter v. Northern Ins. Co. of New York, 18 N.E.2d 906, 908 (N.Y. 1938). Another
definition from the mother country states:
It is necessary that there be three or more persons tumultuously assembled of their own authority with
intent mutually to assist one another against all who shall oppose them in the doing either of an
unlawful act of a private nature or of a lawful act in a violent and tumultuous manner.
Greenleaf on Evidence, 16th ed., sec. 216, cited in Walter v. Northern Ins. Co. of New York, 18
N.E.2d 906, 908 (N.Y. 1938). To constitute a riot, it is not enough that criminal activity be seen or
overheard. Nor can a stealthy act of destruction escalate to riot, even if the destruction causes a later public
disturbance. Providence Washington Insurance Co. v. Lynn, 492 F.2d 979 (1st Cir. 1974). ¶9. As we
formulate our definition, we acknowledge that riots or civil commotions can vary in size and intensity, and
that it is difficult to devise a meaning that will cover every situation. This being said, we recognize at least
four necessary elements, 1) unlawful assembly of three or more people (or lawful assembly that due to its
violence and tumult becomes unlawful), 2) acts of violence, and 3) intent to mutually assist against lawful
authority. The common law clearly indicates that lawful authority is not limited to official law enforcement,
but extends to those whose rights are or may be injured and who seek to protect those rights. In addition,
there must be some degree of 4) public terror. We include this element to prevent incorrect prosecution
under riot, when a more fitting charge is available, and the crime or violence is of a more limited, private
nature. Without the element of public terror, any minor public disturbance could legally be a riot. Though
not identical, several of these elements have been adopted by our sister state in State of North Carolina
v. Hoffman and elsewhere. 154 S.E. 314, 316 (N.C. 1930).
¶10. Turning once again to the case at hand, the alleged rioters satisfy the elements of unlawful assembly
and violent action due to their trespass in and destruction of the home. Appellant argues that there was also
public terror, yet those neighbors who were allegedly terrorized continued to live in their homes while this
activity continued for months. Their main complaint was that they had trouble sleeping, not from fear, but
due to the noise. This Court will never apply legal logic that is totally devoid of reason. Obviously, the terror
to the neighborhood was not enough for the area residents to flee or substantially fear for their lives or
property, which would be a likely response to a true riot. Rather, it seems to be more of an inconvenience
than anything. As to the final, yet most important, element, there is no evidence of mutual assistance against
lawful authority. Quite to the contrary, the witnesses upon which appellant relies indicated that when law
enforcement would respond to their complaints, these trespassers would scatter to the woods at first
glimpse of the police. This action is not indicative of coordinated resistance. In a similar case, Adamson v.
City of New York, 80 N.E. 937 (N.Y. 1907), a crowd virtually demolished a building, and upon the
approach of police, the assembly immediately dispersed. The trial court found this to be trespass and
larceny rather than a riot. In light of our test, the riot which Blackledge alleges to have occurred cannot be
recognized as such when it fails these last two elements.
¶11. As for the term "commotion," Black's Law Dictionary, defines it as an "infraction of civil order not
attaining the status of war or an armed insurrection." Id. 5th Ed. at 253. This is a less involved definition but
is essentially the same as for riot. We find that the terms riot and (civil) commotion are legally synonymous
and the same standard should be used to determine both.
¶12. We are not unsympathetic to Ms. Blackledge's loss. Yet we may not ignore the fact that she chose the
types of perils she wanted to insure her property against. Even the most cursory glance at the policy
statement reveals the classifications of coverage she had opportunity to obtain. She elected "Fire" and
"Extended Coverage," but decided to save money in premiums by opting against "Vandalism or Malicious
Mischief." Unfortunately for her, this claim falls squarely under the one type of coverage she chose to
forego. For her lack of foresight, we cannot punish her insurer.
CONCLUSION
¶13. Despite the lack of an accepted definition for the terms riot and civil commotion, the trial court used
sound judgment in construing the terms according to common parlance. Hence, the trial court's finding that
no genuine issue as to a material fact existed was proper. As a result, we affirm the grant of summary
judgment in favor of Omega.
¶14. AFFIRMED.
PRATHER, C.J., BANKS, SMITH, WALLER AND COBB, JJ., CONCUR. McRAE, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN, P.J.
PITTMAN, P.J., NOT PARTICIPATING.
McRAE, JUSTICE, DISSENTING:
¶15. This case stems from the insurance claim of Jean J. Blackledge for damages to her property resulting
from an alleged riot on her property. Blackledge's insurance policy provided coverage for a "riot" or "civil
commotion" (neither term was defined in the policy) but not for malicious mischief or vandalism. The trial
court granted summary judgment for her insurer, Omega, on the grounds that the undisputed facts did not
rise to the level of a riot or civil commotion. Because I believe there were facts sufficient to make out a jury
question as to whether there was a riot or civil commotion, I dissent from the majority's opinion upholding
summary judgment for Omega.
¶16. Blackledge's claim arose when she discovered that a house she owned but rented out had been
extensively damaged; the porches were torn off, wood was torn out, holes were knocked in the walls, and
the back bedroom had been used as an outdoor toilet. Upon discovering the damage, Blackledge made a
report to the Rankin County Sheriff's Department. The report states:
Complainant stated that she owns a dwelling house at 160 Mary Myles Road in Brandon, MS.
Complainant stated that unknown individuals had torn the house up and complainant is currently in the
process of attempting to sale the house. This investigator and complainant went to the address of 160
Mary Myles Road and viewed the damage. This investigator observed a yellow shingled house with
white wooden framed windows. This investigator observed holes in the sheetrock walls, two exterior
doors removed and the wooden front porch was torn off and missing. This investigator also observed
that defecation was strewn throughout the house and all the windows were broken out. The exterior
corner molding was torn off and destroyed. The bottom edge of the exterior shingles were broken off
and missing. Also noted missing was the hot water heater. The carpet throughout the house was
pulled up, defecated on and destroyed.
"Destruction of Private Property"!
¶17. The Under-Sheriff of Rankin County, Ronnie Pennington explained that the area in which the house
was located was well known for drug deals and that some of the drug dealers used lumber from the home
to burn fires to keep warm at night.
¶18. Two neighbors provided affidavits to the effect that the house had been inhabited by drug dealers
whose homemaking abilities were far less than Martha Stewart's:
[They] would stand in the front yard and yell at traffic passing along the street. They would stop cars
driving down the street. They would tear wood off the dwelling and burn it in the front yard to keep
warm. When it rained they would carry their activities in to the house until it quit raining. They built a
fire once in the stove in the house trying to cook in it. They would break out windows in the house
with rocks and bricks.
¶19. As the majority indicates, there are no Mississippi opinions defining the terms "riot" or "civil
commotion." The Random House Webster's College Dictionary defines a riot as "a disturbance of the
public peace by three or more persons acting together in a violent or tumultuous manner." See Random
House Webster's College Dictionary 1161 (1991). The majority opinion defines the word so as to
include four elements: 1) unlawful assembly of three or more people (or lawful assembly that due to its
violence and tumult becomes unlawful), 2) acts of violence, and 3) intent to mutually assist against unlawful
authority, and 4) some degree of public terror. I believe that under either definition of riot, reasonable jurors
presented the sworn statements provided by Blackledge could find that the damage to Blackledge's
property was caused by a riot and, thus, that the trial acted erred in granting summary judgment for Omega.
¶20. The majority acts precipitously in upholding summary judgment for the insurer in this case. Remember,
Rule 56 motions should be used sparingly lest we violate the right to trial by jury as guaranteed by both the
Mississippi and the United States Constitutions. Russell v. Orr, 700 So. 2d 619, 624 (Miss. 1997)
(summary judgment must be carefully imposed); Hurst v. Southwest Miss. Legal Servs. Corp., 610
So. 2d 374, 384 (Miss.1992) ("Trial judges must be sensitive to the notion that summary judgment may
never be granted in derogation of a party's constitutional right to trial by jury"), overruled on other
grounds, Rains v. Gardner, 731 So. 2d 1192 (Miss. 1999); Martin v. Simmons, 571 So. 2d 254, 258
(Miss.1990) (summary judgment is a tool which "should be used wisely and sparingly"); Pope v.
Schroeder, 512 So. 2d 905, 908 (Miss.1987) ("[S]ummary judgment should not be used to snuff out a
litigant's right to a trial unless it is appropriate under the rule.").
¶21. "Before summary judgment is granted, it must be determined whether reasonable jurors could not
differ on the factual questions in issue." Carpenter v. Nobile, 620 So. 2d 961, 965 (Miss.1993); Sanford
v. Federated Guar. Ins. Co., 522 So. 2d 214, 217 (Miss.1988). The majority admits that the evidence
provided by Blackledge was sufficient to show the elements of both unlawful assembly and violent action
but failed to prove either public terror or mutual assistance against lawful authority. I disagree. The
statements were enough to make out a jury issue as to these elements. At the very least, what is meant by
"public terror" and "mutual assistance against lawful authority" is sufficiently ambiguous that a jury should
decide whether these elements were present in this case. See e.g., Merrimack Mut. Fire Ins. Co. v.
McDill, 674 So. 2d 4, 9 (Miss. 1996) (since the term "household" was capable of multiple interpretations, it
was up to the jury to determine whether plaintiff was member of insured's household).
¶22. I would find the grant of summary judgment in this case to be premature. Therefore, I dissent.
SULLIVAN, P.J., JOINS THIS OPINION.