Lisa Stephens v. Holcomb Logging, L.L.C., e

Case: 15-60792 Document: 00513664726 Page: 1 Date Filed: 09/06/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 6, 2016
No. 15-60792
Lyle W. Cayce
Clerk
LISA BEAM STEPHENS, Wrongful Death Beneficiary of Truman Edward
Beam; PAMELA BEAM DRAKE, Wrongful Death Beneficiary of Truman
Edward Beam,
Plaintiffs - Counter Defendants - Appellants
v.
HOLCOMB LOGGING, L.L.C.,
Defendant
PROGRESSIVE GULF INSURANCE COMPANY,
Counter Claimant - Appellee
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:13-CV-244
Before JOLLY, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
The plaintiffs initiated a garnishment action against Progressive Gulf
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-60792 Document: 00513664726 Page: 2 Date Filed: 09/06/2016
No. 15-60792
Insurance Company to collect on a Mississippi state court judgment. The
plaintiffs appeal the district court’s grant of summary judgment to Progressive.
We briefly explain our reasons to affirm as to each issue.
The district court did not abuse its discretion in refusing to consider the
plaintiffs’ untimely motion for entry of default. See S&W Enters., L.L.C. v.
SouthTrust Bank of Ala., NA, 315 F.3d 533, 535–37 (5th Cir. 2003). The
plaintiffs never requested an extension of the relevant deadline or explained
the cause for delay. See id. at 536.
As correctly analyzed in the district court’s opinion, the state court
judgments against Darryl Holcomb, James Holcomb, and IC Trucking are void.
The plaintiffs had the burden to obtain an order on their motion to substitute
Crystal Holcomb for the deceased Darryl Holcomb. See Ridgway Lane &
Assocs., Inc. v. Watson, 189 So. 3d 626, 630 n.4 (Miss.), reh’g denied (May 12,
2016). They failed to do so. The final judgment against the deceased Darryl
Holcomb is void under Mississippi law. See Wells v. Roberson, 209 So. 2d 919,
922 (Miss. 1968).
The state court granted, with prejudice, the plaintiffs’ motion to
voluntarily dismiss their claims against James Holcomb. See Hogrobrooks v.
Progressive Direct, 858 So. 2d 913, 922 (Miss. Ct. App. 2003). The district court
properly held the judgment was therefore void as to him.
The district court correctly held that the judgment was also void as to IC
Trucking either because it was never served or because of Darryl Holcomb’s
death. See Canal Ins. Co. v. Herrington, 846 F. Supp. 2d 654, 659 (S.D. Miss.
2012); Tucker v. Williams, 7 So. 3d 961, 964–65 (Miss. Ct. App. 2009).
The state court judgment is only valid as to Holcomb Logging, L.L.C.
The district court did not err in concluding that Progressive’s policy does not
cover the judgment against Holcomb Logging. For the reasons discussed by
the district court, Holcomb Logging does not fit within the definition of
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Case: 15-60792 Document: 00513664726 Page: 3 Date Filed: 09/06/2016
No. 15-60792
“insured” in Part I of the policy. The district court also correctly analyzed the
mobile equipment and the MCS-90 endorsements.
The plaintiffs re-urge the argument made in the district court that
uninsured motorist coverage existed under the policy to cover the state court
judgment. Such insurance typically protects insured individuals from
damages caused by others who are uninsured. See Jones v. S. United Fire Ins.,
935 So. 2d 1127, 1129–30 (Miss. Ct. App. 2006). Regardless of whether such
coverage existed, the plaintiffs cite no case where uninsured motorist coverage
applied in these circumstances. They also offer no argument explaining how
such coverage would apply.
AFFIRMED.
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