Marsha R. Hinton v. Pekin Insurance Company

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2018-CA-00383-SCT
MARSHA R. HINTON AND THOMAS F. HINTON
v.
PEKIN INSURANCE COMPANY
DATE OF JUDGMENT: 02/09/2018
TRIAL JUDGE: HON. DAL WILLIAMSON
TRIAL COURT ATTORNEYS: LAWRENCE E. ABERNATHY, III
SAMUEL S. McHARD
DORRANCE AULTMAN
RICHARD M. BURGLAND
MARK D. MORRISON
MATTHEW D. MILLER
ANN GRIFFIN
COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: LAWRENCE E. ABERNATHY, III
LESLIE D. ROUSSELL
SAMUEL S. McHARD
ATTORNEY FOR APPELLEE: DORRANCE AULTMAN
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 02/21/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CHAMBERLIN, JUSTICE, FOR THE COURT:
¶1. Timothy Hinton died from injuries sustained in a fall from a tree stand. Timothy’s
parents, Marsha and Thomas Hinton (the “Hintons”), brought a wrongful-death suit against
the manufacturer of the tree stand, C&S Global Imports, Inc. (“C&S”), and against Pekin
Insurance Company (“Pekin”).
¶2. After filing their third amended complaint, the Hintons filed a motion for partial
summary judgment against Pekin. The Hintons claimed that Pekin waived its defenses to
coverage or should be estopped from asserting any coverage defenses. Among other
arguments, the Hintons maintained that Pekin failed to defend C&S, did not file a
declaratory-judgment action and allowed a default judgment against C&S. The Jones County
Circuit Court denied the Hintons’ motion.
¶3. Pekin then moved for summary judgment. It argued that the insurance policy
excluded coverage for tree or deer stands and related equipment. The circuit court granted
Pekin’s motion and entered a final judgment dismissing Pekin from the suit.
¶4. The Hintons now appeal both of the circuit court’s rulings.1 After review, we affirm
the order denying partial summary judgment to the Hintons, the order granting summary
judgment to Pekin and the final judgment dismissing Pekin from the suit.
FACTS AND PROCEDURAL HISTORY
Background
¶5. Timothy Hinton died on November 18, 2012. At the time of his fall, Timothy was
wearing a fall-arrest system which included a full-body harness, tether and tree strap.
Timothy had purchased the tree stand and fall-arrest system from The Sportsman’s Guide,
Inc. (“TSG”), in 2009. C&S had manufactured the items and marketed them to TSG. Pekin
insured C&S at the time of Timothy’s injury and death.
1
The litigation is before the Court for the second time. See Pekin Ins. Co. v. Hinton,
192 So. 3d 966 (Miss. 2016). On interlocutory appeal, the Court determined that Pekin, an
Illinois company, was subject to personal jurisdiction in Mississippi. Id. at 974. The Court
provided a detailed account of the early procedural history of this case. Id.
2
The Initial Insurance Policy
¶6. In January 2011, C&S applied for insurance with Pekin. Comprehensive Insurance
Services, Inc. (“Comprehensive”), an insurance agency, delivered the commercial insurance
application to Pekin. On the application, the box entitled “REMARKS/PROCESSING
INSTRUCTIONS” read:
POLICY EXCLUSION: THIS POLICY SHALL NOT IN ANY WAY
EXTENT [sic] COVERAGE TO DEER/TREE STANDS OR ANY
RELATED EQUIPMENT.
In the box entitled “LOSS HISTORY,” the application referenced an “INJURY FROM USE
OF TREE STAND” in 2010.
¶7. Based on the application, Pekin issued Businessowners Policy No. 00BU51626-O to
C&S for the policy period of January 31, 2011, to January 31, 2012. In the policy, the
“Businessowners Form Schedule” listed the “Forms And Endorsements Attached To This
Policy.” Among these thirty-two entries, the contested exclusion in this appeal was listed:
“481T 1078 Amendment of Policy” (the “481T”). The 481T was attached to the policy as
the second endorsement. In its entirety, it provided:
00-BU51626-0
AMENDMENT OF POLICY
This endorsement. [sic] effective 01/31/11
forms a part of policy No. 00BU51626-0
Issued to C & S Global Imports INC
by PEKIN INSURANCE COMPANY
3
It is agreed that as of the effective date of this endorsement this policy is
amended in the following particulars:
EXCLUSION DESIGNATED PRODUCTS
THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER
THE FOLLOWING:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
PRODUCTS/COMPLETED OPERATIONS LIABILITY COVERAGE PART
SCHEDULE DESIGNATED PRODUCT(S)
DEER/TREE STANDS & RELATED EQUIPMENT
481T (10-78)
HOME OFFICE
¶8. During the course of the litigation, the Hintons deposed Jeff Cole, the president and
chief executive officer of C&S. Cole testified that C&S had stopped selling tree stands and
sought an insurance policy with a lower premium that did not insure tree stands. According
to Cole, C&S had been insured with First Specialty Insurance, but C&S switched to Pekin
and stopped selling tree stands. Cole testified that “when I had insurance with Pekin
Insurance, it was not to cover tree stands.” He further testified that he “understood” that tree
stands were excluded from coverage when C&S switched coverage from First Specialty
Insurance to Pekin.
¶9. The Hintons also deposed Jeffery Ott, an agent at Comprehensive. Ott testified that
when Cole first approached him for an insurance policy for C&S in 2010, he had to bring in
another broker on a referral basis in order to insure the tree stands as a specialty item with
First Specialty Insurance. According to Ott, C&S’s high premium payments to cover the tree
stands was a problem financially for C&S, and Cole approached Ott again to seek a policy
that did not cover tree stands. Ott contacted Pekin and set up the policy for C&S. Also, Ott
4
maintained that Cole never asked him to remove the 481T from the Pekin policy.
The Renewal Insurance Policy
¶10. Pekin renewed the businessowners policy for C&S under Policy No. 00BU51626-A
for the policy period January 31, 2012, to January 31, 2013. The “BUSINESSOWNERS
FORM SCHEDULE” of the renewal policy listed “481T 107 Amendment of Policy” among
thirty-three2 entries. Aside from an updated policy number, the language of the 481T
exclusion, which is the second attached endorsement to the renewal policy, is identical to the
481T exclusion in the initial policy.
The Amending Insurance Policy
¶11. Pekin issued an amending policy for the policy period of July 8, 2012, to January 1,
2013, under Policy No. 00BU51626-A. The amending policy was eleven pages long and
reflected an additional premium of $28 on the common declarations page. On the bottom of
the same page, the amending policy read:
Changes Made to Your Policy:
Forms Added
The “BUSINESSOWNERS FORM SCHEDULE” of the amending policy listed “481T 1078
Amendment of Policy” among thirty-four entries of forms and endorsements “Attached To
This Policy.” Only two endorsements were actually attached to the amending policy: a
disclosure concerning terrorism insurance and an amendment to the policy that named an
2
The number of listed forms and endorsements went from thirty-two in the initial
policy to thirty-three in the renewal policy because of a new endorsement included in the
renewal policy: “ILLINOIS CHANGES — CIVIL UNION.”
5
additional insured. The additional-insured amendment read, in part:
This endorsement modifies insurance provided under the following:
BUSINESSOWNERS LIABILITY COVERAGE FORM
SCHEDULE
Name of person or Organization (Additional Insured)
SCHEELS ALL SPORTS INC
SCHEELS CORPORATION OFFICE
The Filing of the Wrongful-Death Suit
¶12. The Hintons filed the wrongful-death suit on behalf of their son in late 2013. The suit
was filed in Jones County Circuit Court.
Pekin’s Claim Review
¶13. Several documents, emails and letters in the record pertain to Pekin’s review of the
Hintons’ claim against C&S. They are summarized below:
Feb. 5, 2014 In a letter, TSG demanded indemnity and defense from C&S and
Hunter’s View, Ltd., a related company to C&S.
Feb. 10 Comprehensive submitted a Notice of Claim to Pekin.
Feb. 11 An email assigned the claim review to Tim Manning, Pekin’s litigation
manager.
6
Feb. 11 Mark Morgan, Pekin’s Regional Claim Manager, emailed Manning and
other Pekin employees. The first email read, “Randy, I am in the process
of correcting the opener for this new claim/new suit, but wanted to make
you aware of this as soon as possible as well.” The second email read:
It turns out this cannot be corrected, rather it will be
necessary to do a Create claim to get this opened, as the
policy did not include liability coverage at the time of
termination, but did at the time of loss. As such, we will
leave this claim pending in the opener screens even
though it shows “error”. [sic] We will delete this claim
once the create is in plain, so we will still have something
for tracking purposes.
Feb. 11 A typed note appeared on a claim coverage document: “Policy in force
on date of loss.” On the document in the “ENDORSEMENTS” section,
“481 1078” was listed, but the document did not specify which 481
endorsement.3
Undated A typed note appeared at the bottom of the Businessowner’s Underwriter
Instruction Sheet: “481T not marked here.”
Feb. 13 A typed note appeared on a copy of the 481T:
ON 1/23/13. AGENT SENT PEKIN A CANCELL [sic]
REQUEST - STATING INSURED WAS GOING OUT
OF BUSINESS. I DO NOT SEE THIS AMENDMENT
OF POLICY CHANGE REQUEST IN THE
UNDERWRITING FILE?? TM 02/13/2014
Feb. 14 Attorney Dorrance Aultman, who was retained by Peking to represent
C&S upon notice of the Hintons’ claim, emailed Manning and told him
that he had contacted the clerk’s office in Laurel, Mississippi and
“discovered that there is no process” filed for C&S.
3
Pekin used variations of the 481 endorsement throughout its policies. A 481T
amended the actual policy manuscript; a 481N added an additional insured to the policy.
7
Feb. 15 A typed note attached to a Common Declarations document read,
From underwriting file
There is no 481T-Amendment to policy in the ImageRight
file. That endorsement excludes tree stands.
Tim Manning
02/15/2014.
Feb. 15 Manning emailed Aultman and informed him of a “[n]ew development”
that the policy was written with a 481T endorsement that excluded
coverage for tree stands and related equipment.
Feb. 15 Manning emailed Cole. The email stated, “This confirms our telephone
conversation earlier today.” Manning informed Cole of the claim and
states:
“. . . the Pekin Policy was written with endorsement 481T
(1078) . . . which excludes policy coverage for deer/tree
stands or any related equipment. In the absence of
coverage, the policy has obligation to provide neither a
defense nor indemnity to it’s [sic] policyholder, C&S
Global Imports, Inc. . . . Upon notice of claim, Pekin
under reservation of rights, pre-emptively [sic] assigned a
defense attorney to act in your best interest. . . . Attorney
Aultman has already begun working to defend C&S
Global Imports, Inc. Even though we have no duty to
provide for your defense and/or indemnity, in order to give
you ample time to align defense for this claim, we have
requested he continue the defense, and Pekin has agreed
to continue to fund the defense, thru next week, or thru
Friday, February 21, 2014 . . . . After that time, Pekin will
fund no part of this claim. . . . In summary, there is no
policy coverage for this claim, and Pekin has no duty to
defend and/or indemnify it’s [sic] policyholder, but agrees
to continue to fund the defense for a short time, to allow
you to align your own defense.
Feb. 17 Aultman emailed Cole. He stated that “Manning has advised me of the
coverage situation with Pekin Insurance.” He informed Cole that he
would share his file with whichever attorney C&S chose to continue the
representation.
8
Feb. 18 Manning sent Cole a policy release, but Cole never signed or returned it.
Feb. 18 Manning mailed Cole a letter that was virtually identical to his email to
Cole on February 15.
Procedural History of the Wrongful-Death Suit
¶14. The Hintons served C&S in December of 2013 and filed an application for default on
April 2, 2014. The clerk entered a notice of default the next day.
¶15. On June 9, 2016, the Hintons filed their third amended complaint, which sought
recovery against C&S, Hunter’s View, Ltd., TSG, Pekin, John Doe corporations and
individual John Does.4 In all, the Hintons brought fourteen counts against the defendants.
The majority of the claims sought recovery under theories of negligence, breach of warranty,
products liability or res ipsa loquitor. In essence, the Hintons alleged that the tree strap in
the fall-arrest system was negligently manufactured or defective. Count twelve sought to
have the circuit court adjudicate Pekin’s liability and responsibilities to C&S and TSG under
C&S’s insurance policy with Pekin. Also, count thirteen sought recovery against Pekin for
negligent or intentional misrepresentation, and count fourteen alleged civil conspiracy against
Pekin; the circuit court dismissed counts thirteen and fourteen pursuant to a motion to
dismiss by Pekin.
¶16. Pekin answered the Hintons’ complaint. For the first time in the litigation, C&S
answered the complaint and moved to set the entry of default aside. The circuit court denied
the motion and entered a default judgment against C&S on October 20, 2016.
4
The Court has reviewed the intervening procedural history of this case from the
entry of the notice of default until just before the filing of the third amended complaint. See
Pekin, 192 So. 3d at 967–70.
9
¶17. Following the entry of default judgment, the Hintons moved for partial summary
judgment. They maintained that Pekin waived any defense to coverage or was equitably
estopped from asserting any coverage defenses because Pekin (1) failed to provide a defense
to C&S, (2) failed to obtain a judicial determination that it did not owe C&S a defense and
(3) failed to protect C&S from a default judgment. The circuit court denied the Hintons’
motion. The Hintons sought interlocutory appeal in this Court, but this Court denied their
petition.
¶18. Pekin then moved in the circuit court for summary judgment on count twelve of the
third amended complaint (the declaratory judgment against Pekin). Pekin maintained (1) that
the contested insurance policy did not cover Timothy’s injuries due to an exclusion for tree
stands and related equipment and (2) that TSG was not an additional insured under the
policy. The circuit court granted Pekin’s motion and dismissed Pekin with prejudice in a
final judgment under Mississippi Rule of Civil Procedure 54(b).
¶19. Aggrieved, the Hintons appealed both the denial of their motion for partial summary
judgment and the grant of Pekin’s motion. They raise several issues which we reframe on
appeal. They maintain that the circuit court erred by not applying the doctrines of equitable
estoppel, waiver and judicial estoppel. They also argue that the circuit court erred in its
determination that no genuine issue of material fact existed as to (1) whether the policy
included the tree-stand exclusion and (2) whether TSG was an additional insured under the
policy.
¶20. We address the circuit court’s grant of summary judgment to Pekin first. Our analysis
10
of the insurance policy’s language shapes our subsequent review of the circuit court’s denial
of the Hintons’ motion for partial summary judgment. The parties briefed the contested
issues under Illinois and Mississippi law. We find no conflict of laws between the laws of
either forum and will apply Mississippi law to both issues.
STANDARD OF REVIEW
¶21. Our standard of review for a motion for summary judgment is well established:
We review a trial court’s grant of summary judgment de novo. Mitchell v.
Ridgewood E. Apartments, LLC, 205 So. 3d 1069, 1073 (Miss. 2016) (citing
Borries v. Grand Casino, Inc. [,] 187 So. 3d 1042, 1045 (Miss. 2016)). Under
Rule 56 of the Mississippi Rules of Civil Procedure, “[t]he judgment sought
shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). The
burden of demonstrating that no genuine issue of fact exists is on the moving
party and “the non-moving party should be given the benefit of every
reasonable doubt.” Borries, 187 So. 3d at 1046. “The evidence is to be
viewed in the light most favorable to the nonmoving party.” Mitchell, 205 So.
3d at 1073 (citing Stribling Inv., LLC v. Mike Rozier Constr. Co., Inc., 189
So. 3d 1216, 1219 (Miss. 2016)).
Daniels v. Crocker, 235 So. 3d 1, 6 (Miss. 2017). The nonmovant, though, “may not rest
upon the mere allegations or denials of his pleadings, but his response, by affidavits or as
otherwise provided in this rule, must set forth specific facts showing that there is a genuine
issue for trial.” M.R.C.P. 56(e).
ANALYSIS
I. Pekin’s Motion for Summary Judgment
¶22. In a thirty-one-page order, the circuit court granted Pekin’s motion for summary
judgment and dismissed Pekin from the suit with prejudice. Pekin had argued that the policy
11
language did not provide coverage for Timothy’s injuries and that TSG was not an additional
insured under the policy. The Hintons responded that genuine issues of fact existed as to
whether the 481T exclusion was created after Timothy’s injury or whether the 481T was not
included in the policy after the issuance of the amending policy in 2012. They also claimed
the existence of genuine issues of material fact about TSG’s status as an additional insured
under the policy.
A. The 481T Exclusion
¶23. Pekin alleges that the policy did not provide coverage pursuant to the 481T,which
excluded coverage of tree stands and related equipment under the policy. It bears the initial
burden under Rule 56(c) to demonstrate that no genuine issue of material fact exists.
M.R.C.P. 56(c).
¶24. The Court proceeds under a de novo standard of review for any interpretation of an
insurance policy. Minn. Life Ins. Co. v. Columbia Cas. Co., 164 So. 3d 954, 967 (Miss.
2014). This is because “[t]he interpretation of an insurance policy is a question of law, not
one of fact.” Id.
¶25. Pekin met its burden to demonstrate that no genuine issue of material fact existed as
to whether the 481T excluded coverage for tree stands and related equipment. The initial
policy and renewal policy both list the 481T. The exclusion is also attached to both policies.
In addition, the amending policy references the 481T exclusion. Further, Cole testified that
C&S sought a cheaper policy that did not provide coverage for tree stands. Ott also testified
that Cole, on behalf of C&S, requested a policy with no coverage for tree stands and related
12
equipment.
¶26. On appeal, no party contests that the 481T exclusion is unambiguous. It lists that the
endorsement is effective upon the date referenced and includes the appropriate policy
number. It mentions the parts of the policy that are amended and excludes tree or deer stands
and related products from policy coverage.
¶27. The Hintons argue that Morgan’s email—alone—is enough evidence to demonstrate
a genuine issue of material fact. Morgan had emailed Manning about a technical issue within
Pekin’s claims-processing system in opening the Hintons’ claim under the policy. In that
email, Morgan stated, “it will be necessary to do a Create claim to get this opened, as the
policy did not include liability coverage at the time of termination, but did at the time of
loss.” While there may be a genuine issue as to the interpretation of Morgan’s opinion on
policy coverage, Morgan’s opinion is not a material issue in this case because “[t]he
interpretation of an insurance policy is a question of law” in Mississippi. Minn. Life Ins.
Co., 164 So. 3d at 967. In other words, Morgan’s opinion on coverage is not relevant to the
resolution of the issue and, therefore, does not create a fact issue for the jury.
¶28. No party contests the meaning of the 481T, and Pekin showed that the policy included
the exclusion from its first issuance. Thus, for the purposes of the initial Rule 56 burden,
Pekin demonstrated that no genuine issue of material fact exists as to whether the 481T
exclusion exempted tree stands and related equipment from coverage.
¶29. As such the burden shifts to the Hintons to demonstrate that a triable issue remains
for the jury. The Hintons maintain that
13
This case involves an insurance company that appears to have created an
exclusion after the accident at issue or deleted an exclusion from its policy
when it added an additional insured. It has always been the position of the
Hintons that the 481T exclusion was not a part of the Pekin policy at the time
of Tim Hinton’s fall. The Hintons do not know whether the exclusion was
created after the fall or whether the exclusion was not included in the policy
when it was amended in July of 2012.
These two propositions sum up the Hintons’ contention that an issue of fact for the jury to
resolve remains: (1) whether the exclusion was not included in the amending policy or (2)
whether the exclusion was created and inserted after Hinton’s injury.
1. Whether the 481T exclusion was not
included in the policy when it was
amended in July 2012.
¶30. The Hintons failed to demonstrate a fact issue for the jury on this point. The
amending policy amended the renewal policy. It was not an “amended policy” in and of
itself. It was an “amending policy.” This is evident from the fact that the amending policy
had the same policy number as the renewal policy—Policy No. 00BU51626-A. The policy
also stated that forms were added to the policy; it did not state that any forms were not
included or that any forms were removed from the policy. In addition, the amending policy
was only eleven pages long—significantly shorter than the initial policy at 106 pages and the
renewal policy at 107 pages.
¶31. Further, no evidence appears in the record that the 481T was not included in amending
policy. The amending policy listed the 481T as attached to the policy in the businessowners
form schedule. While the 481T was not actually attached to the amending policy, neither
were thirty-one of the other forms and endorsements from the renewal policy. These thirty-
14
one other forms, though, were still part of the insurance policy after the amending policy was
issued. The only forms actually attached to the amending policy were an additional insured
and a notice of the rejection of terrorism insurance. If these two forms were the only valid
forms under the amending policy simply because they were actually attached to the amending
policy, then the amending policy would not have offered any coverage at all. For there to be
any coverage under the amending policy, the amending policy simply amended the renewal
policy and did not stand on its own as a separate policy.
¶32. Besides the evidence that the amending policy amended the renewal policy and still
included the 481T exclusion, the initial insurance application indicated that the policy would
not cover deer or tree stands and related equipment. Further, Cole testified that he wanted
a policy that did not insure tree stands, because the policy would be cheaper. He also
testified that he never instructed Ott to remove the exclusion from the policy. Ott supported
this testimony. He claimed that Cole approached him about switching to an insurance policy
that did not cover tree stands. He testified that he secured the Pekin policy for that purpose
and never instructed anyone to take the exclusion out of the policy.
¶33. The Hintons point to several pieces of evidence in the record as proof of a genuine
issue that the 481T exclusion was not included in the amending policy. They maintain that
Morgan’s email is some evidence that the exclusion was not in the amending policy.
Viewing Morgan’s email in the light most favorable to the Hintons, the email expresses
Morgan’s opinion that there was “liability coverage . . . at the time of loss.” It does not
address the relevant issue of whether the exclusion was not included in the policy as a result
15
of its not being attached to the amending policy or its being somehow removed from the
policy. See Minn. Life Ins. Co., 164 So. 3d at 967 (“The interpretation of an insurance
policy is a question of law, not one of fact.”).
¶34. The Hintons also argue that several documents create a fact issue for the jury.
Manning wrote that he did not see the 481T in the underwriting file and that there was no
481T in the ImageRight file. Neither of these statements support the Hintons’ claim that the
481T was not included in the policy after the 2012 amendment. There is no genuine issue
of material fact for the jury to resolve simply because Manning did not see the 481T in the
underwriting file. The underwriting file does not control the language of the actual policy.
Pekin demonstrated that the 481T was part of the policy from its inception. See Noxubee
Cty. Sch. Dist. v. United Nat. Ins. Co., 883 So. 2d 1159, 1166 (Miss. 2004) (“Insurance
policies are contracts, and as such, they are to be enforced according to their provisions.”).
Further, Manning’s not seeing the 481T in the underwriting file or the 481T’s absence from
the ImageRight file does not support the argument that the 481T was not included in the
policy itself.
¶35. The same goes for the underwriting documents that either did not have the 481T listed
or did not have the 481T marked. Looking at this evidence in the light most favorable to the
Hintons does not change the fact that no evidence supports the claim that the 481T was not
included in the policy after the amendment.
¶36. The Hintons did not provide any evidence of a genuine issue of material fact as to
whether the 481T was left out of the policy or removed from the policy after the 2012
16
amendment. The fact that the 481T was not marked in certain portions of the underwriting
file and that a claims adjuster did not see the 481T during his review of the file is not
sufficient evidence to defeat the award of summary judgment in Pekin’s favor. While the
evidence alone is insufficient to create a fact issue for the jury, its insufficiency is more
blatant in the context of this record. Here, the initial application for insurance stated that the
policy would not cover tree stands; the 481T was consistently listed and attached to the
policies; Cole testified that he did not want coverage for tree stands; and Ott testified to the
same effect. The Hintons have not met their burden to defeat summary judgment on this
issue.
2. Whether the 481T exclusion was created
and inserted into the policy after
Timothy’s fall.
¶37. The Hintons have not demonstrated an issue of fact for the jury on this issue either.
In this more than fifteen-hundred-page record, no evidence appears that the 481T exclusion
was created and inserted into the policy after Timothy’s fall.
¶38. The Hintons argue that Manning was an experienced claims adjuster and would not
have missed the 481T during his review of the file had it been in the file. From this
argument, the Hintons want us to conclude that the 481T must have either been removed
from the policy or created after Timothy’s fall and inserted into the policy. This argument
is simply unsupported.
¶39. To show that the 481T was created after Timothy’s fall, the Hintons point to a
coverage document in a separate but similar claim to their claim. The coverage document
17
generated by Pekin for the separate claim is a document similar to the claim-coverage
document generated on February 11, 2014, for the Hintons’ claim. On the coverage
document in the separate claim, “481 1078” is listed but is struck through with a red line.
Above the “ENDORSEMENTS” section, in blue type, ten endorsements are listed, including
two 481 endorsements—a “481N 1078” and a “481T 1078.” The Hintons maintain that
because this claim document had “481 1078” marked through and “481T 1078” listed above
the endorsements section, a genuine issue of material fact existed as to whether Pekin had
created the 481T endorsement—in the Hintons’ claim—and had inserted it into C&S’s policy
after Timothy’s fall. This is an unsupported leap in logic. The only evidence presented about
this separate claim is the coverage document itself. The Hintons offer no evidence of fraud
or deception by Pekin. In fact, no explanation appears at all for the marked-through portion
of the document, and the Hintons offer no evidentiary support that Pekin did anything wrong
in this separate claim. Further, the claim-coverage document in the Hintons’ claim does not
have any marked-through portions or any added “481 1078” endorsements.
¶40. In contrast to the Hintons’ lack of proof that the 481T was created after the fact, an
overwhelming amount of evidence exists that the 481T exclusion was written into both the
initial policy and the renewal policy and that it was referenced in the amending policy.
Cole’s testimony is uncontradicted that C&S sought an insurance policy that would not cover
tree stands because C&S was no longer selling tree stands. Ott’s testimony supported the
proposition that the 481T exclusion was included in the original policy. Ott testified that
initially he had been forced to associate another broker in order to secure a specialty policy
18
to cover the tree stands but that he found the Pekin policy on his own as it did not cover the
tree stands. In addition to this testimony, the insurance application also had provided that the
policy would not cover tree stands and related equipment. The Hintons simply have not
presented any evidence that the 481T endorsement was created by Pekin after Timothy’s fall
and inserted into C&S’s policy.
¶41. Thus, in sum, Pekin prevailed in its summary-judgment motion and demonstrated that
no genuine issue of material fact existed as to whether the policy covered the loss due to the
tree stand. The policy did not. In response, the Hintons failed to show a genuine issue of
material fact.
B. TSG as an Additional Insured
¶42. After granting summary judgment to Pekin under the policy, the circuit court found
that “the issue of whether The Sportsman’s Guide is an additional insured under the Pekin
policies is now a moot issue as between the Plaintiffs and Pekin Insurance Company.” We
agree and refrain from rendering an advisory opinion on the issue. See Hughes v.
Hosemann, 68 So. 3d 1260, 1263 (Miss. 2011) (“It is not within the province of this Court
to render advisory opinions.”).
II. The Hintons’ Motion for Partial Summary Judgment
¶43. We now turn to the Hintons’ raised errors concerning the denial of their motion for
partial summary judgment. Our analysis of this issue is framed within the context of the
language of the policy discussed above. No genuine issue of material fact exists as to
whether the policy provided coverage for tree stands and related equipment. It did not. With
19
this resolved, it becomes clear that the circuit court correctly denied the Hintons’ motion for
partial summary judgment.
A. Estoppel
¶44. The Hintons argue that the circuit erred by not granting its motion on the basis of
estoppel. They argue that Pekin’s failure to provide a defense to C&S or to obtain a judicial
determination that it did not owe a defense should estop Pekin from raising any coverage
defenses.
¶45. “An insurance company’s duty to defend its insured is triggered when it becomes
aware that a complaint has been filed which contains reasonable, plausible allegations of
conduct covered by the policy. However, no duty to defend arises when the claims fall
outside the policy’s coverage.” Baker Donelson Bearman & Caldwell, P.C. v. Muirhead,
920 So. 2d 440, 451 (Miss. 2006). “Unquestionably, the insurance carrier has a right to offer
the insured a defense, while at the same time reserving the right to deny coverage in
[the]event a judgment is rendered against the insured.” Moeller v. Am. Guar. & Liab. Ins.
Co., 707 So. 2d 1062, 1069 (Miss. 1996). Within this context, “an insurer who withdraws
from the defense of an action is estopped to deny liability under the policy if its conduct
results in prejudice to the insured; but it is not estopped to do so if its action does not result
in any prejudice to the insured.” S. Farm Bureau Cas. Ins. Co. v. Logan, 238 Miss. 580,
590, 119 So. 2d 268, 272 (1960).
¶46. Here, the Hintons argue that Pekin assumed coverage of C&S’s defense only to
abandon C&S eight days later. They further argue that this action resulted in prejudice to
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C&S as an entry of default was noticed against C&S on April 2, 2014.
¶47. The Hintons, though, failed to demonstrate a genuine issue of material fact on this
issue. Pekin did retain an attorney to investigate the claims on behalf of its insured, C&S
three to four days after Pekin received notice of the claim. Pekin denied coverage to C&S
in an email from Manning on February 15 and a letter on February 18. Manning wrote C&S,
“the Pekin Policy was written with endorsement 481T (1078) . . . which excludes coverage
for deer/tree stands or any related equipment. In the absence of coverage, the policy has
obligation to provide neither a defense nor indemnity to it’s [sic] policyholder, C&S Global
Imports, Inc.” Manning’s email to C&S stated that Pekin would continue to fund C&S’s
defense through February 21 so that C&S could properly align its defense. Thus, Pekin
denied coverage to C&S under the policy and defined the scope of the remaining
representation.
¶48. Because Manning’s email stated that Pekin retained an attorney for C&S “under
reservation of rights,” the Hintons maintain that Pekin assumed the defense of C&S’s claim.
The full context of Manning’s email, though, shows that Pekin assigned an attorney “under
reservation of rights” as soon as it received notice of the claims against C&S. Five days
later, Pekin denied coverage to C&S. We find that an insurance company should not be
estopped from raising coverage defenses when it assigns its insured an attorney upon receipt
of a notice of claim, investigates the claim and promptly denies coverage.
¶49. The Hintons’ reliance on Maryland Casualty Company v. Nestle is misplaced. Md.
Cas. Co. v. Nestle, 2010 WL 3735756, at *1 (S.D. Miss. Sept. 17, 2010). There, the insurer
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defended its insured for two years under a potentially defective reservation-of-rights letter.
Id. at *2. The insurer then brought a declaratory-judgment action against its insured and
sought to deny coverage. Id. The district court denied the insurer’s motion for summary
judgment, since a genuine issue of material fact existed as to whether the reservation-of-
rights letter was effective, and it was too early to tell whether the insured was prejudiced.
Id. at *6–7. Pekin, though, denied coverage promptly. Even if we were to find that Pekin
had assumed C&S’s defense by assigning it an attorney, it quickly withdrew, leaving forty-
one days until the entry of default. Thus, Nestle does not establish that a genuine issue of
material fact existed in this case.
¶50. Further, Logan is factually distinguishable. Logan, 119 So. 2d at 268. In Logan, the
insurer had been negotiating a settlement on behalf of its insured. Id. at 269–70. When the
settlement negotiations fell through, the insurer notified its insured of its withdrawal from
the matter and its denial of coverage under the policy. Id. at 270. The same day, a default
judgment was entered against the insured. Id. On appeal, the Court estopped the insured
from raising coverage defenses. Id. at 269–72. Here, though, Pekin denied coverage to C&S
on February 15. The entry of default was not entered until April 2—forty-seven days later.
It is undisputed that C&S did nothing in the interim to defend itself or to prevent the default.
Logan, though, required C&S to act: “[I]n a case of estoppel for untimely withdrawal or
damages resulting from the injustified [sic] refusal to defend, in either case the insured must
act in good faith and do what is reasonably required under the circumstances to diminish the
damages.” Id. at 272.
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¶51. Also, we focus our analysis on the actions of C&S as the insured, not what the
Hintons would have done had they been in C&S’s position. While the Hintons have standing
to bring C&S’s legal claims against Pekin in order to establish coverage, they are still bound
by the actions of C&S. See Titan Indem. Co. v. Williams, 743 So. 2d 1020, 1022–23 (Miss.
Ct. App. 1999). Again, C&S did nothing to avoid the entry of default between the denial of
coverage and April 2. In fact, Cole never executed the release sent to C&S by Pekin, and the
record reveals that the parties struggled during the litigation to locate and depose Cole. Cole
testified that he had only appeared at a later hearing in the case to “get my head out of the
sand and try to get this stuff resolved.”
¶52. Last, the Hintons maintain that the circuit court erred in denying their motion for
partial summary judgment since Pekin’s counsel admitted in a hearing that Manning’s letter
was not a proper reservation-of-rights letter. This argument is without merit. While Pekin’s
counsel did state that the email and letter were not proper reservations-of-rights letters, he
claimed that this was because Pekin denied coverage. Pekin’s counsel stated:
Now, when Tim Manning reached out to Jeff Cole in February of 2014, was
that up to speed and up to snuff as far as the reservation of rights letter goes?
No. But what he did during that communication, unlike all of these other cases
that you’ll look at, especially the Nestle one, is that he said there’s no coverage
and we’re only providing you with a defense for six days after which point in
time you’re on your own.
¶53. The Hintons failed to meet their burden in seeking partial summary judgment against
Pekin. Pekin denied coverage to C&S and withdrew any representation without prejudice
to its insured. Thus the circuit court did not err in denying partial summary judgment to the
Hintons on this issue.
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B. Waiver
¶54. Under three separate headings in their brief, the Hintons argue that the circuit court
erred by not granting summary judgment against Pekin under a theory of waiver. The
essence of their argument is that Pekin waived its coverage defenses by failing either to
defend the suit under a reservation of rights or to seek a declaratory judgment that it owed
no duty to defend C&S. The Hintons offer a number of different theories in support of these
claims. In the end, though, the Hintons’ arguments are without merit, given the resolution
of the first issue (the policy included the 481T) and the fact that Pekin denied coverage to
C&S.
¶55. “Waiver is defined as ‘an intentional relinquishment or abandonment of a known right
or privilege.’” Wilson v. Gen. Motors Acceptance Corp., 883 So. 2d 56, 68 (Miss. 2004)
(quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466
(1938)). “Moreover, the fact of waiver typically must be proved by clear and convincing
evidence.” Moorman v. Tower Mgmt. Co., 451 F. Supp. 2d 846, 853 (S.D. Miss. 2006)
(citing Swift v. Aberdeen Lumber Co., 172 Miss. 697, 159 So. 301, 305 (Miss.1935)).
¶56. In short, the Hintons did not meet their burden to demonstrate that no genuine issue
of material fact existed as to whether Pekin waived its coverage defenses. No evidence
appears in the record that Pekin waived its right to assert coverage defenses. Instead, it
denied coverage to C&S.
¶57. Without showing a conflict of laws between Illinois and Mississippi law, the Hintons
rely on Employers Insurance of Wausau v. Ehlco Liquidating Trust, 708 N.E.2d 1122,
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1134 (1999). They argue that under Ehlco, Pekin was required either to defend C&S under
a reservation of rights or to seek a declaratory judgment. While the Hintons cite a number
of Illinois decisions, distinguishing and explaining the Ehlco court’s analysis is sufficient to
address the Hintons’ waiver arguments.
¶58. The Ehlco court’s analysis does not support either the Hintons’ waiver or estoppel
arguments:
The general rule of estoppel provides that an insurer which takes the position
that a complaint potentially alleging coverage is not covered under a policy
that includes a duty to defend may not simply refuse to defend the insured.
Rather, the insurer has two options: (1) defend the suit under a reservation of
rights or (2) seek a declaratory judgment that there is no coverage. If the
insurer fails to take either of these steps and is later found to have wrongfully
denied coverage, the insurer is estopped from raising policy defenses to
coverage.
Id. at 1134–35 (emphasis added). Aside from this principle of law relating to estoppel and
not waiver, the Ehlco court’s discussion of estoppel is inapplicable here, given the 481T
exclusion. The insurance policy did not provide any coverage. Further, the insurer is only
estopped (or waives its rights according to the Hintons) when the denial of coverage was
wrongful. Here, it was not. Moreover, as discussed below, Pekin did actually file a
declaratory-judgment action against C&S and the Hintons.
¶59. Also, the Hintons maintain that Pekin’s later reservation-of-rights letter to C&S in
July 2016 and its provision of a defense to C&S is an admission by Pekin that it had earlier
abandoned C&S or wrongfully denied coverage. In the end, though, this argument does not
prevail, given that there is no genuine issue of material fact as to the original denial of
coverage, which we have found was proper. The fact that Pekin reconsidered its coverage
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position does not support either the Hintons’ estoppel or waiver arguments. A number of
legitimate reasons could have supported Pekin’s decision to defend C&S in 2016 other than
admission of fault.
¶60. The Hintons did not demonstrate a genuine issue of material fact as to Pekin waiving
its coverage defenses under the policy. Their interpretation of the doctrine of waiver is not
supported by Mississippi (or Illinois) law. Pekin denied coverage to C&S and did not waive
its policy defenses.
C. Judicial Estoppel
¶61. Throughout their brief, the Hintons claim that the circuit court erred by not granting
summary judgment against Pekin on the issue of judicial estoppel. They maintain that Pekin
should be judicially estopped from offering any evidence that C&S did not tender its defense
to Pekin or that C&S contends that there was no coverage under the policy. We find no merit
in the Hintons’ argument.
¶62. “Judicial estoppel is designed to protect the judicial system and applies where
intentional self-contradiction is being used as a means of obtaining unfair advantage in a
forum provided for suitors seeking justice.” Kirk v. Pope, 973 So. 2d 981, 991 (Miss. 2007)
(internal quotation omitted). “Judicial estoppel precludes a party from asserting a position,
benefitting from that position, and then, when it becomes more convenient or profitable,
retreating from that position later in the litigation.” Clark v. Neese, 131 So. 3d 556, 560
(Miss. 2013) (internal quotation omitted). Judicial estoppel has three elements: “A party will
be judicially estopped from taking a subsequent position if (1) the position is inconsistent
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with one previously taken during litigation, (2) a court accepted the previous position, and
(3) the party did not inadvertently take the inconsistent positions.” Id. (citing Kirk, 973 So.
2d at 991).
¶63. The Hintons maintain that Pekin should be estopped from relying on Cole’s testimony
that he does not remember tendering C&S’s defense to Pekin and that C&S did not believe
it had coverage under the policy. The Hintons argue that these two pieces of evidence are
at odds with Pekin’s representations in an Illinois declaratory-judgment action. On March
25, 2014, Pekin filed a declaratory judgment against TSG, C&S and the Hintons. Pekin
represented that “C&S tendered its defense to Pekin for the Hinton action” and that “[t]he
above contentions of Pekin are, on information and belief, denied by C&S which, in turn,
contends that it is covered under the Pekin policy.” (Emphasis added.) From a review of the
record, the last ruling in the declaratory-judgment action was an entry of default against
C&S:
This Court finds that the default against C&Global [sic] Imports, Inc.[,]
entered on June 22, 2014[,] stands and further Orders that the Court has never
made any findings on the insurance coverage for C&S Global Imports, Inc.[,]
or any Defendant and this Court leaves all issue of coverage to another Court
in another jurisdiction. No Judgments have been entered against C&S Global
Imports, Inc.
¶64. Pekin’s representations in the declaratory-judgment action, though, were not an
intentional self-contradiction to obtain an unfair advantage. Kirk, 973 So. 2d at 991. Cole’s
failure to communicate with Pekin forced Pekin to represent to the Illinois court that “upon
information and belief” C&S “contend[ed] that it [wa]s covered under the Pekin policy.”
Cole never executed the policy release that Pekin had sent him. He also stopped returning
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Manning’s phone calls and was difficult to locate. Further, are representations in the record
demonstrate that process servers were unable to serve Cole with subpoenas to compel his
deposition. By his own admission, Cole only voluntarily appeared at a later court hearing to
“get my head out of the sand and try to get this stuff resolved.” Also, the record is clear that
no adverse ruling or judgment on the issue of insurance coverage was entered. The entry of
default clearly stated that the court never made any findings on coverage and left those issues
to other courts. Thus, we find that Pekin should not be judicially estopped from relying on
Cole’s testimony.
CONCLUSION
¶65. For the foregoing reasons, we affirm the circuit court’s rulings. The circuit court did
not err in denying the Hintons’ motion for partial summary judgment or in granting Pekin’s
motion for summary judgment and in dismissing Pekin from the suit.
¶66. AFFIRMED.
KING, P.J., COLEMAN, MAXWELL, BEAM, ISHEE AND GRIFFIS, JJ.,
CONCUR. RANDOLPH, C.J., AND KITCHENS, P.J., NOT PARTICIPATING.
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