Linda Owens v. Mississippi Farm Bureau Casualty Insurance Company

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-CA-00953-SCT
LINDA OWENS
v.
MISSISSIPPI FARM BUREAU CASUALTY
INSURANCE COMPANY, MISSISSIPPI FARM
BUREAU MUTUAL INSURANCE COMPANY AND
FARMERS INSURANCE EXCHANGE
DATE OF JUDGMENT: 07/10/2002
TRIAL JUDGE: HON. MARGARET CAREY-McCRAY
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: PHILIP B. TERNEY
ATTORNEYS FOR APPELLEES: GERALD H. JACKS
KATHY R. CLARK
STEVEN CAVITT COOKSTON
MARC A. BIGGERS
NATURE OF THE CASE: CIVIL - INSURANCE
DISPOSITION: AFFIRMED - 09/15/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, P.J., DICKINSON AND RANDOLPH, JJ.
DICKINSON, JUSTICE, FOR THE COURT:
¶1. This case involves a Mississippi automobile accident and a guest passenger’s claim for
benefits under the uninsured motorist provisions of two insurance policies, the driver’s
insurance policy written in Tennessee, and the guest passenger’s own policy written in
Mississippi. The issues presented are (1) whether Tennessee or Mississippi law will apply to
the claim under the Tennessee policy, and (2) whether the guest passenger’s insurance agent
provided sufficient information and advice concerning uninsured motorist coverage.
BACKGROUND FACTS AND PROCEDURAL HISTORY
¶2. On May 24, 1998, Linda Owens was injured in an automobile accident in Mississippi
while riding as a guest passenger in a vehicle owned and driven by Tennessee resident Ruth
Saed. The accident was caused by the negligence of Hubert Branch. Mrs. Owens suffered
extensive injuries and incurred medical bills in the range of $90,000.
¶3. At the time of the accident, Branch had $20,071 in liability coverage and therefore was
an under insured/uninsured motorist. Saed.’s automobile insurance policy was written in
Tennessee by Farmers Insurance Exchange, and provided $100,000 of uninsured/under insured
motorists coverage, and $5,000 in medical coverage, for the named insured and guest
passengers.
¶4. Mrs. Owens was an insured under an automobile policy purchased by her husband,
Ralph, from Mississippi Farm Bureau Casualty Insurance Company. The Farm Bureau policy
covered five vehicles, and included $300,000 of bodily injury liability coverage, $50,000 in
UM coverage, and $15,000 in medical coverage, for each of the five insured vehicles. Thus,
under her own policy, Mrs. Owens had $250,000 in UM coverage and $75,000 in medical
coverage. Additionally, Mrs. Owens was covered by a Farm Bureau umbrella policy issued to
Mr. Owens. Although the umbrella policy provided $2 Million in liability coverage, it had no
UM coverage because of a waiver signed by Mr. Owens.
¶5. Branch’s liability carrier paid its policy limits of $20,071. Three months after the
accident, Mrs. Owens notified Farm Bureau of the accident and requested assistance with her
medical bills. Farm Bureau began making medical payments and continued to do so for a year,
at which time the medical bills totaled more than $60,000. Farm Bureau continued to make
2
medical payments under its UM coverage, in addition to $1,288 in disability payments due
under the policy.
¶6. On August 18, 2000, Mrs. Owens’s attorney notified Farm Bureau that Mrs. Owens was
ready to settle her UM claim. Upon determining that Mrs. Owens’s claim would “arguably”
exceed its policy limits, Farm Bureau tendered the balance of its UM coverage in the amount
of $232,088.23. The check was returned to Farm Bureau by Mrs. Owens’s counsel, who
informed Farm Bureau that his “client was not ready to receive those funds. . . .” The funds
were thereafter paid by Farm Bureau and received by Mrs. Owens with agreement of her
counsel.
¶7. In the meantime, Mrs. Owens had pursued a claim for UM benefits from Farmers,
asserting that she was entitled to UM benefits because she was a guest passenger in its
insured’s vehicle at the time of the accident. Mrs. Owens admits that Farmers timely paid its
$5,000 medical benefit, but claims that Farmers ignored her claim for UM benefits for
months, thereby acting in bad faith. Farmers ultimately paid Owens all of its available UM
policy limits of $79,929.00.1
¶8. On November 20, 2000, Linda Owens sued Farmers and Farm Bureau, alleging that both
Farm Bureau and Farmers negligently and in bad faith failed to investigate, evaluate and pay her
claim within a reasonable time and that Farm Bureau’s agent had failed to adequately explain
UM coverage to her husband, which resulted in her economic loss because she was not insured
with the maximum UM coverage available.
1
Farmers paid $79,929.00 in UM coverage after claiming its set-off of $20,071.00 paid by
Branch’s carrier.
3
¶9. Trial commenced, and at the conclusion of Owens’s case, Farmers moved for a directed
verdict, asserting that, under Tennessee law, Owens had not established that she was entitled
to UM coverage. The circuit judge agreed, concluding that Tennessee law applied to Owens’s
claim against Farmers, and that Farmers was entitled to a directed a verdict.
¶10. The case was submitted to the jury on Mrs. Owens’s two claims against Farm Bureau.
The jury returned a verdict in favor of Farm Bureau on both issues, and judgment was entered
accordingly. Mrs. Owens now appeals both the directed verdict and the jury verdict to this
Court.
ANALYSIS
I. Directed Verdict in Favor of Farmers
¶11. This Court reviews directed verdicts de novo. Skrmetta v. Bayview Yacht Club, Inc.
806 So. 2d 1120, 1124 (Miss. 2002) (citing Morgan v. Greenwaldt , 786 So. 2d 1037, 1041
(Miss. 2001)).
¶12. We begin by observing that Mrs. Owens advances no argument or resistence to Farmers’
position that, under Tennessee law, no UM benefits would be payable. Rather, she asserts that
Mississippi law should apply and that she should have been allowed to present her bad faith
claim under Mississippi law to the jury.
¶13. Similarly, Farmers makes no argument and presents no authority which leads us to
believe that it would take the position that should this case be decided under Mississippi law,
Mrs. Owens should have been allowed to present her case to the jury. Thus, we are grateful that
the parties’ respective positions do not require us to analyze the consequences of liability
under the law of each state, but only require us to analyze which law is applicable.
4
¶14. Thus, these respective positions leave us with but one issue to address as to Farmers,
that is, whether Tennessee or Mississippi law applies. If Tennessee law applies, we must
affirm the directed verdict in favor of Farmers. If Mississippi law applies, we must reverse and
remand for a new trial.
Boardman v. U.S.A.A.
¶15. In 1985, this Court responded to a Supreme Court Rule 462 certification from the
United States Court of Appeals for the Fifth Circuit concerning the choice of laws to be
applied in a case involving a UM claim. In Boardman v. United Services Auto. Ass’n, 470 So.
2d 1024 (Miss. 1985), USAA issued an automobile liability insurance policy to Henry
Boardman, a resident of Nebraska. Id. at 1028. The policy covered three automobiles all
principally garaged in Nebraska. Id. Henry’s son, Joseph, who was an insured under the USAA
policy, traveled from Nebraska to Mississippi to attend Mississippi State University, and to
work for his uncle in Gulfport. Id. While in Gulfport, and not in one of the vehicles insured
under Henry’s policy, Joseph was involved in an automobile accident with an uninsured
motorist. Id. at 1029. Henry’s USAA policy contained an exclusion for “bodily injury to an
insured while occupying an automobile (other than an insured automobile) owned by the named
insured or a relative. . . .” Id. Thus, because Joseph was in an owned vehicle not insured by
USAA when he was injured by an uninsured motorist, USAA asserted that its exclusion applied
and no benefits were payable. Id. Joseph, on the other hand, asserted that Mississippi law
2
Supreme Court Rule 46 has been re-codified at Rule 20, Mississippi Rules of Appellate
Procedure.
5
should be applied and that such exclusions are prohibited. Id. See Lowery v. State Farm Mut.
Auto. Ins. Co., 285 So. 2d 767, 777-78 (Miss. 1973).
¶16. This Court analyzed the facts under Sections 6, 188, and 193, Restatement (Second) of
Conflicts of Laws (1971), and held that Nebraska law should be applied. The Section 6
analysis, also called the modified Craig-Mitchell3 center of gravity test, was “superficially
easy.” 470 So. 2d at 1032. The Court pointed out that
The contract in question was made and entered into in the state of Nebraska.
Henry Boardman at the time was a resident of Nebraska and at all times relevant
hereto all insureds under the contract have been residents of Nebraska. The
policy covered three automobiles each of which . . . was “principally garaged in
Nebraska.” The principal location of the risks insured against was in Nebraska.
Mississippi’s contacts with this contract and the parties are fortuitous, arising
from the fact that Joseph Boardman took a summer job in Gulfpot. All of this
suggests that Nebraska law should apply.
Id.
¶17. In discussing Section 188, which the Court found “narrows the focus of §6” in general
contract actions, the Court looked at such factors as the place of contracting, negotiating, and
performing the contract, the location of the subject matter, and the domicile of the parties.
The Section 188 analysis was consistent with the Section 6 analysis. Finally, in discussing
Section 193, which was specifically held to be “applicable in this state,” the Court focused on
the “principal location of the risk.” All of these factors led the Boardman Court to hold that
Nebraska law would apply. Id. at 1033.
3
See Mitchell v. Craft, 211 So. 2d 509, 512 (Miss. 1968); Craig v. Columbus Compress &
Warehouse Co., 210 So. 2d 645, 649 (Miss. 1968).
6
¶18. Mrs. Owens distinguishes Boardman from the facts of her case by pointing out that she
was a Mississippi resident, whereas Joseph Boardman was a resident of Nebraska. She claims
that her residency, together with Mississippi’s “strong public policy in favor of full uninsured
motorist coverage” are the most important factors for us to consider in deciding which state’s
laws to apply in this case.
Public policy
¶19. Mrs. Owens submits that this Court has recognized a strong public policy in Mississippi
favoring full UM coverage in United States Fidelity & Guaranty Co. v. Ferguson, 698 So. 2d
77 (Miss. 1997) and McDaniel v. Shaklee, U.S. Inc., 807 So. 2d 393 (Miss. 2001). However,
contrary to Mrs. Owens’s assertions, this Court’s decisions in Ferguson and Shaklee address
Mississippi’s public policy in favor of stacking UM policies, and this Court’s “intolerance of
the insurance industry . . . rewriting its policies to circumvent the Court’s decisions.” Shaklee,
807 So. 2d at 397 (citation omitted). There is no stacking issue here. Mrs. Owens cites no
language from these decisions which addresses choice of law analysis or principles.
Residency
¶20. As support for her position concerning the importance of residency, Mrs. Owens cites
O’Rourke v. Colonial Insurance Co. of California, 624 So. 2d 84 (Miss. 1993), for the
proposition that the center of gravity test has never been applied where the claimant was a
Mississippi resident. She further points to this Court’s dictum in Boardman, “Had Joseph
Boardman at the time of the accident been a citizen of Mississippi, we might perceive this
matter altogether differently.” Boardman, 470 So. 2d at 1035, n.6. Mrs. Owens misperceives
7
the importance of this statement to her case. Joseph Boardman was a named insured under the
USAA policy. Therefore, if he were a Mississippi resident, that would necessarily mean that
USAA issued a policy, at least in part, to a Mississippi resident. For an insurance company to
intentionally include a resident of Mississippi as a named insured, is a far different issue from
that presented here. Mrs. Owens was unknown to Farmers when the policy was written. Under
the policy, all named insureds are residents of Tennessee. The fact that Mrs. Owens became
a temporary insured because of her status as a guest passenger does not merit the same analysis
as the fact scenario suggested in Boardman.
¶21. Farmers argues that the circuit court properly applied Mississippi’s choice of law
principles and properly determined that Tennessee law applied to Mrs. Owens’s claim.
Farmers submits that decisions applying Mississippi choice of law rules consistently place the
greatest emphasis on the principal location of the risk and place of contracting in determining
which state’s law to apply to issues of insurance contract interpretation and construction.
Farmers cites Ford v. State Farm Ins. Co., 625 So. 2d 792 (Miss. 1993); O’Rourke, 624 So.
2d 84; and Baites v. State Farm Mut. Auto. Ins. Co., 733 So. 2d 792 (Miss. Ct. App. 1998),
as support for the trial court’s determination that, under the center of gravity test, the only
factor favoring application of Mississippi law was the fact that Mrs. Owens was a Mississippi
resident, and in determining that no overriding Mississippi public policy existed which (1)
overcame the reasonable expectation of the contracting parties that their respective rights
would be determined with respect to Tennessee law or (2) compelled a finding that Tennessee
law should not apply to the claim of a Mississippi resident under the facts of this case.
8
¶22. Citing Boardman, O’Rourke, and Baites, Farmers argues that application of Tennessee
law to Mrs. Owens’s claim does not violate Mississippi public policy, and that Mississippi’s
public policy in favor of stacking, and against efforts to exclude cases and persons from
coverage of uninsured provisions of policies, is not so strong as to override the reasonable
expectations of parties that coverage questions will be governed by the law of the state where
the contract is made. Farmers points out that its policy was issued in Tennessee to a Tennessee
resident, and the parties had a reasonable expectation that Tennessee contract law would apply
to the interpretation of the policy.
¶23. In discussing its reasons for granting Farmers’ motion for a directed verdict, the trial
court conducted a balancing under the center of gravity test. The trial judge noted that the
contract was made in Tennessee, the negotiations took place in Tennessee, and Sed. was a
Tennessee resident. With respect to the place of performance of the contract , the trial court
stated that “there seems to be no question that substantially the contract was to be performed
in the state of Tennessee where the policy holder resided.” The trial court further noted the
location of subject matter of the contract was Tennessee, and the fact that the accident
occurred in Mississippi should be given little, if any, weight. Finally, the trial court considered
the domicile of the parties, including both the parties to the contract, who were both domiciled
in Tennessee, as well as Mrs. Owens, whose domicile was Mississippi. Upon considering all
of these factors, the trial court held:
[T]he Court still must determine that the factors weigh in favor of Tennessee
law. Let me come back and focus on my determination of the last factor or my
consideration of the last factor, because it appears that this may be a case of
first impression being that it clearly involves a Mississippi resident. The Court,
again, taking guidance from the Supreme Court, that what we are trying to
9
determine is what the reasonable expectation of the parties of the contract
would have been concerning the protection that is offered by the policy realizes
that if this claim was being brought by Ruth Sed., there would be no question.
In fact, this case would be on all fours with the O’Roark [sic] case and would
come pretty close to Bordeman, [sic] and in that case there’s no questions that
Tennessee law would apply. When the Court substitutes a Mississippi insured
instead of Ruth Sed., it cannot find on this issue of whether this policy can be
stacked, which is the issue that we’re looking at, as well as the issue of whether
or not there was an expectation that Mississippi law would be able to be applied,
that that distinction is not significant enough to outweigh the other factors in the
balancing test required for the center of gravity. That then means - - moves the
Court to whether or not there is an overriding Mississippi state policy
concerning the issue involved here so that the Court would be compelled to
ignore Tennessee law and apply the law of this forum.
The Supreme Court has made clear in O’Roark [sic] that the policy under the
uninsured motorist law and in particular the policy - - public policy concerning
stacking of policies is not so strong as to require the use of Mississippi law
when a determination has been made that the center of gravity is in another
jurisdiction.
Therefore, the Court finds that the provision in the Farmers policy concerning
other insurance specifically which reads, (as read) “however, with respect to
bodily injury sustained by an insured persons while occupying a vehicle not
owned by that person, this coverage shall apply only in the amount by which the
limit of liability for this coverage exceeds the applicable limit of liability of
such other insurance must be given the enforcement that it would be given under
Tennessee law.” And that being a valid provision under Tennessee Law, the
Court finds that it applies in this action. Therefore, on the defendant Farmers’
motion for directed verdict, the Court finding no entitlement under this policy
did not exceed the limits of the policies available through Farm Bureau directed
verdict is granted.
¶24. The record demonstrates that the trial court was particularly careful to allow plaintiff’s
counsel time to read the relevant case law and the brief supporting Farmers’ motion and to
respond in oral arguments before the court. The trial court allowed extensive argument by the
attorneys on the motion, and properly considered the various factors required under the center
of gravity test.
10
Waiver
¶25. Mrs. Owens asserts that the conflict of law question should not have been at issue in the
trial court because it was not well pled by Farmers. However, the record reflects that Farmers’
supplemental responses to Mrs. Owens’ First Set of Interrogatories asserted that Tennessee
law controlled the assessment of her claim. The choice of law issue was again raised by
Farmers at the deposition of Mrs. Owens’s expert John Kornegay, in a motion in limine, and
in the Pretrial Order. We find that Farmers clearly placed the issue of which state’s law would
apply before the trial court.
¶26. We hold that the trial court correctly applied the center of gravity test in holding that
Tennessee law controls the claims of Owens against Farmers.
II. Farm Bureau’s handling of the claim, and the Trial Court’s Denial
of a J.N.O.V. or a New Trial
¶27. At trial, Mrs. Owens claimed that Farm Bureau negligently handled her claim and failed
to adequately explain UM coverage to Mr. Owens, as required by this Court’s holding in Aetna
Casualty & Surety Co. v. Berry, 669 So. 2d 56 (Miss. 1996). These claims were submitted
to the jury which rendered a verdict in favor of Farm Bureau.
¶28. On appeal, Mrs. Owens does not specify what error she alleges the trial court
committed with regard to her claims against Farm Bureau and the jury verdict in its favor. In
her “CONCLUSION” she states, “Farm Bureau’s treatment of Appellant and her husband at trial
is [sic] outrageous and should not be condoned by this Court.” We take this to be a claim that
the jury verdict was the product of bias, passion or prejudice. She also characterizes several
positions taken by Farm Bureau as “ludicrous.” We interpret her language to be a claim that
11
the jury verdict was against the overwhelming weight of the evidence,4 and the trial court
should have granted her JNOV motion. A careful review of Mrs. Owens’s brief unearths no
other language which we are able to interpret as a possible assignment of error.
¶29. The standard of review for a denial of a JNOV and a denial of a directed verdict are the
same. Under this standard, this Court must:
consider the evidence in the light most favorable to the [non-moving party],
giving that party the benefit of all favorable inference that may be reasonably
drawn from the evidence. If the facts so considered point so overwhelmingly in
favor of the [moving party] that reasonable [jurors] could not have arrived at a
contrary verdict, [we are] required to reverse and render. On the other hand if
there is substantial evidence in support of the verdict, that is, evidence of such
quality and weight that reasonable and fair minded jurors in the exercise of
impartial judgment might have reached different conclusions, affirmance is
required.
3M Co. v. Johnson, 895 So. 2d 151, 160 (Miss. 2005) (quoting Munford, Inc. v. Fleming, 597
So. 2d 1282, 1284 (Miss. 1992)). Thus, viewing the evidence in the light most favorable to
Farm Bureau, this Court must determine whether the facts are nevertheless so overwhelmingly
in favor of Mrs. Owens that reasonable jurors could not have found in favor of Farm Bureau.
¶30. Additionally, “[t]his Court will reverse a trial judge's denial of a request for new trial
only when such denial amounts to a abuse of that judge's discretion.” Steele v. Inn of
Vicksburg, Inc., 697 So. 2d 373, 376 (Miss. 1997) (citing Shields v. Easterling, 676 So. 2d
293, 298 (Miss. 1996)).
Berry
4
The appropriate assignment of error for Mrs. Owens’s claim would be that the trial court
erroneously denied her motion for judgement notwithstanding the verdict. Although she does not make that
claim in her “STATEMENT OF ISSUES,” the language in her brief marginally meets her obligation to
inform this Court of her assignments of error.
12
¶31. Mrs. Owens claims that Farm Bureau did not adequately explain uninsured motorist
coverage to her husband when he purchased and renewed numerous automobile liability
insurance policies over a nine-year period. Since the Owenses’ automobile liability insurance
policy had lower UM benefits than liability limits, Mrs. Owens claims that each time the policy
was amended or changed to include as an additional named insured a new family member or
new corporate entity, Farm Bureau had the obligation to obtain a new written waiver of UM
benefits. Additionally, Mrs. Owens claims Farm Bureau’s agent, Kelly Smith, failed to
adequately explain UM coverage to Mr. Owens when he purchased the liability policy, and each
time he renewed the coverage.
¶32. To support her claim, Mrs. Owens cites Aetna Casualty & Surety Co. v. Berry, 669 So.
2d 56 (Miss. 1996), where this Court stated,
We hold that in order for an insured to have an option to increase UM limits not
to exceed the limits of the policy, or for the insured to completely reject UM
coverage in writing, an insurance agent has a duty to explain UM coverage as
outlined above. An agent is not necessarily under a duty to recommend that the
insured exercise the option of obtaining UM coverage up to the limits of the
policy; however, before an insured may make an intelligent decision about how
much UM coverage he wants, or make a knowing waiver of UM coverage in
writing (which the agent must obtain if there is to be no UM coverage under the
policy), he must understand what he is entitled to. If an agent fails to uphold this
duty to explain, and is thereby found to be negligent, damages should not be
awarded in an amount less than the statutory minimum for UM coverage,
$10,000.00, nor in an amount more that the limits of the particular policy in
question–i.e., no more than the insured could have opted for under the terms of
the policy.
Id. at 76. The only member of the Berry Court remaining on this Court today is Chief Justice
Smith, who dissented. Thus, it is worthwhile for us to reaffirm the duty of an insurance agent
with regard to explaining UM options.
13
¶33. The agent’s requirement announced in Berry is in two parts. The first requires
explanation of UM coverage prior to obtaining the waiver required by Miss. Code Ann. § 83-
11-101. The second requires explanation of an insured’s right to increase UM benefits from
the statutory limit to the liability limit of the policy.
¶34. Although we question the seemingly absolute requirement of explanation by the
insurance agent, we fully agree and hold that the statutorily required waiver of UM coverage
may be obtained only from a fully-informed insured. That is to say, the waiver must be
knowing and intelligent. This distinction is important since there may be instances where the
insured – separate and apart from any explanation by the agent – is already fully aware of the
intricacies of UM coverage, including the costs and benefits, and being fully informed,
chooses to waive UM coverage. Under such circumstances, no logical reason exists to require
a redundant explanation from the agent. The simple principle announced here is that no
statutorily-required waiver of UM benefits is effective unless the waiver was obtained from
an insured who was reasonably knowledgeable and informed of the costs and benefits of such
UM coverage prior to signing the waiver. To this extent, we reaffirm the holding in Berry.
¶35. However, we reject and overrule the implication in Berry that an insurance agent has
the absolute, court-created duty to explain an insured’s right to purchase additional UM
coverage, over and above the amount of coverage required by statute. Under the statute, the
only coverage required to be written, unless rejected by written waiver, is the “limits which
shall be no less than those set forth in the Mississippi Motor Vehicle Safety Responsibility
14
Law,5 as amended. . . .” Miss. Code Ann. § 83-11-101(1). Thus, according to the statute, every
automobile liability policy written in Mississippi provides UM coverage up to the MVSRL
limit, regardless of what may or may not be written in the policy. The same cannot be said for
optional coverage which exceeds that limit. Such optional coverage is not required by statute,
and the statute contains no requirement of a waiver for an insured to reject the optional
coverage. We reject the notion that this Court should bypass the Legislature and judicially
create an obligation to obtain a knowing and intelligent waiver or rejection of optional
coverage. The Legislature could easily have required every insurance policy to include such
coverage, unless waived. However, it did not. Instead, it chose only to require such waiver of
the MVSRL limit, and further it provided that additional coverage “at the option of the insured
. . . may be increased.” Id.
¶36. In the case before us today, there is no issue of knowing, intelligent waiver, since Mr.
Owens did not waive the statutory minimum UM coverage. Rather, Mrs. Owens claims that her
husband’s Farm Bureau agent, Smith, did not explain the right to purchase UM coverage equal
to the bodily injury liability limits under their policy. The Owenses’ insurance policy carried
$300,000 of bodily injury liability coverage for each person for each vehicle, and $50,000 of
UM coverage for each person for each vehicle. As a result, Mrs. Owens asserts, she was
denied available coverage of the amount of $1.5 Million ($300,000 stacked 5 times). The five
policies owned by the Owens each included UM coverage of $50,000. Mrs. Owens asserts
that, since her damages exceeded the available UM coverage of $250,000, she has suffered
monetary loss. This claim was presented to, and rejected by, the jury.
5
Miss. Code Ann. § 63-15-3 (Supp. 2003).
15
¶37. Because the jury found in favor of Farm Bureau, we must review the record to
determine whether the evidence, viewed in the light most favorable to Farm Bureau, supports
the verdict.
¶38. Mr. Owens’s testimony concerning his knowledge of UM issues and his own coverage
was less than positive. For instance, when asked questions concerning whether UM coverage
had been explained to him, he replied that he did not remember. He admitted that he met with
Farm Bureau’s agent, Kelly Smith, every year to discuss his insurance needs, including the
amount of coverage. Mr. Owens admitted that he was presented a form which provided options
including increasing his UM coverage to the liability limits of his policies. He testified that
he understood he could have raised his limits, but chose not to do so, and he provided
testimony this indicated he understood the purpose of UM coverage. He signed the form
which stated, “I do not want my uninsured motorist limits increased. Please leave them at
50/100/300. I also waive all benefits above these amounts and all benefits of the umbrella
policy.” Finally, Mr. Owens testified that he knew as early as 1989 that he could purchase UM
coverage equal to his liability limits. The bottom line of Mr. Owens’s complaint against Farm
Bureau regarding coverage is his belief that Smith should have recommended an increase in
UM coverage.
¶39. Farm Bureau’s adjuster, Jimmy Sutherland, testified that Mr. Owens understood UM
coverage. In fact, Mrs. Owens’s own expert, John Kornegay, testified that Mr. Owens
understood the amount of his UM limits.
¶40. Based upon this evidence, we cannot find the jury abused its discretion. The jury verdict
in favor of Farm Bureau was supported by sufficient evidence, and it must be upheld.
16
Negligent claim handling
¶41. Mrs. Owens further claims that Farm Bureau negligently, and in bad faith, handled her
claim. Again, we begin by recognizing that this claim was presented to, and rejected by, the
jury. Thus, our task is to determine whether, viewing the evidence in the light most favorable
to Farm Bureau, the facts so overwhelmingly favor Mrs. Owens’s claim that reasonable jurors
could not have found in favor of Farm Bureau.
¶42. The precise claim, according to both Mr. and Mrs. Owens, is that Farm Bureau should
have settled their claim sooner. Specifically, Mrs. Owens says that in May 1999, when Dr.
Gober reported to Farm Bureau that Mrs. Owens’s condition had “plateaued,” Farm Bureau
should have tendered the full available UM benefits under the policy. Instead, it began paying
medical bills 6 from available UM coverage. Mrs. Owens argues that Farm Bureau was not
acting as a “good Samaritan” but rather was “paying medical bills with Appellant’s own money
and earning interest for itself from those funds being wrongfully withheld.”
¶43. On the other hand, Farm Bureau directs us to the following testimony of Mr. Owens:
Q. Okay. Mr. Owens, Jimmy Sutherland took over this claim right after you
told Kelly Smith it looked like you all were going to need some help;
right?
A. That’s correct.
Q. And within just a matter of a few days, Jimmy Sutherland was in contact
with you; correct?
A. Yes sir. That’s correct.
***
6
The Farm Bureau policy’s one-year time limit for payment of medical bills under its medical
coverage expired around the same time Farm Bureau received Dr. Gober’s report.
17
Q. And to this day, you don’t think that Jimmy Sutherland or anybody at
Farm Bureau had any malice or ill will toward either you or Mrs. Owens;
do you?
A. They did not.
Q. And you don’t think that either Jimmy Sutherland or anybody else at
Farm Bureau had any motivation to do anything other than to try to help
you and Mrs. Owens; right?
A. That’s right.
***
Q. And Jimmy Sutherland, on more than one occasion, said, “When you all
get ready to sit down and settle your claim, let me know;” right?
A. I can’t recall that I – it may have been said.
Q. If Jimmy says that he did that, you would not disagree with that; would
you?
A. That’s correct.
***
Q. Okay. So you never told and Mrs. Owens never told Jimmy Sutherland
“I’m ready to sit down and see if we can get the rest of this uninsured
motorist money;” did you?
A. No.
¶44. Mr. Owens went on to testify that he was unaware that when Farm Bureau tendered a
check for the balance of UM benefits ($232,888.23), Mrs. Owens’s attorney returned the
check to Farm Bureau with a letter of rebuke, stating that he was “stunned” to receive the
check, and that ”I told you on August 28, 2000 that my client was not ready to receive those
funds.” Upon learning of the letter (at trial on the witness stand), Mr. Owens agreed that the
attorney was speaking for him and Mrs. Owens.
18
¶45. Mrs. Owens provided similar testimony, stating that soon after she initiated her claim,
Farm Bureau contacted her and explained her available coverage. She also agreed that she
thought Sutherland always had her best interest at heart.
¶46. Additionally, Mrs. Owens’s expert, John Kornegay, testified that he was not implying
in any way that Farm Bureau handled Owens’s claim in an inappropriate way.
¶47. This evidence, though conflicting with evidence presented by Mrs. Owens, is sufficient
to support a jury verdict in favor of Farm Bureau.
III. Bias, passion and prejudice.
¶48. Finally, Mrs. Owens asserts that she is entitled to a new trial because this verdict was
the result of bias, passion and prejudice. Mrs. Owens asserts that Farm Bureau’s attorney made
personal attacks on her and her husband at the trial. She further states that the attorney
questioned them about irrelevant and immaterial aspects of their lives, and made repeated
references to their economic status in an attempt to prejudice the jury.
¶49. We have reviewed the entire transcript, and we find that, at times during the trial, both
Farm Bureau’s counsel and counsel for Mrs. Owens were verbally warned or reprimanded by
the trial court for inappropriate remarks to the court and/or a witness. At times, hostile
attitudes were exhibited on the part of attorneys and witnesses. Through the questioning of
jurors in voir dire, defense counsel was able to make the jury aware that the Owenses were
members of a country club, traveled to Europe and other destinations, and had supported
Republican politicians. Although a carefully crafted motion in limine could have resulted in
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the information coming before the jury in a more benign manner, we find the questions were
reasonably calculated to learn information about jurors, and possible contacts, affiliations and
beliefs which might bear on the decision to exercise peremptory strikes of jurors. We also
find that the remarks and information complained of, taken individually or as a whole, do not
justify a new trial.
CONCLUSION
¶50. For these reasons, we affirm the circuit court’s judgment.
¶51. AFFIRMED.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND
RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ, J.,
NOT PARTICIPATING.
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