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noting that Mississippi courts may “consult leading dictionaries” to determine the plain and ordinary meaning of a contract term
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CIVIL ACTION NO. 3:18-CV-634-DPJ-LRA
2020-09-30
Jelissa VIGNE, AS Guardian and NEXT FRIEND OF Christopher BIAS Jr., a Minor, for the Wrongful Death of Christopher Bias Sr., Deceased, and on Behalf of All Wrongful Death Beneficiaries of Christopher Bias Sr., Deceased, Plaintiff v. Peewee S. LEE d/b/a/ Reliable Paving, Entergy Mississippi, Inc., and Ohio Security Insurance Company, Defendants
Joe N. Tatum, Tatum & Wade, PLLC, Jackson, MS, for Plaintiff. Chloe M. Chetta, Pro Hac Vice, Judy Y. Barrasso, Pro Hac Vice, Barrasso, Usdin, Kupperman, Freeman & Sarver, LLC, New Orleans, LA, Gregg A. Caraway, Wells, Marble & Hurst, PLLC, Ridgeland, MS, for Defendants.
Joe N. Tatum, Tatum & Wade, PLLC, Jackson, MS, for Plaintiff.
Chloe M. Chetta, Pro Hac Vice, Judy Y. Barrasso, Pro Hac Vice, Barrasso, Usdin, Kupperman, Freeman & Sarver, LLC, New Orleans, LA, Gregg A. Caraway, Wells, Marble & Hurst, PLLC, Ridgeland, MS, for Defendants.
ORDER
Daniel P. Jordan III, CHIEF UNITED STATES DISTRICT JUDGE This insurance-coverage dispute asks whether a business auto-insurance policy covers wrongful-death damages flowing from an on-the-job electrocution. Defendant Ohio Security Insurance Company seeks summary judgment on Plaintiff Jelissa Vigne's declaratory-judgment action [1-1]. Def.'s Mot. [65] at 1. For the following reasons, Defendant's summary-judgment motion [65] is granted.
I. Facts and Procedural History
On May 10, 2018, Christopher Bias Sr. was operating a dump truck owned and controlled by Peewee S. Lee d/b/a Reliable Paving LLC. Third Am. Compl. [1-1] ¶ 8. Lee insured his truck through a policy with Defendant Ohio Security Insurance Company. Policy [65-3]. Sadly, Bias was electrocuted when he exited the vehicle after the truck bed touched a high-voltage electrical powerline. Third Am. Compl. [1-1] ¶ 8.
The disputed policy covers bodily-injury liability for damages "caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.’ " Policy [65-3] at 17. The dump truck was covered, but the policy excludes coverage for bodily injury to an "employee" with exceptions for "temporary worker[s]." Id. at 19. The parties dispute whether Bias was a temporary worker.
Plaintiff Jelissa Vigne, as mother of Christopher Bias Jr.—Bias's son, heir-at-law, and wrongful-death beneficiary—seeks a declaratory judgment establishing coverage under the Ohio Security policy. Third. Am. Compl. [1-1] ¶ 1, 15. Both personal and subject-matter jurisdiction exist, and the Court is prepared to rule on Ohio Security's fully briefed summary-judgment motion.
II. Standard
Summary judgment is warranted under Federal Rule of Civil Procedure 56(a) when evidence reveals no genuine dispute regarding any material fact and the moving party is entitled to judgment as a matter of law. The rule "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548. The nonmoving party must then "go beyond the pleadings" and "designate ‘specific facts showing that there is a genuine issue for trial.’ " Id. at 324, 106 S.Ct. 2548 (citation omitted). In reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, "but only when ... both parties have submitted evidence of contradictory facts." Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). When such contradictory facts exist, the court may "not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments have never constituted an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash. , 276 F.3d 754, 759 (5th Cir. 2002) ; Little , 37 F.3d at 1075 ; SEC v. Recile , 10 F.3d 1093, 1097 (5th Cir. 1993).
III. Analysis
The parties dispute whether Bias was Lee's "temporary worker," as the policy covers damages for bodily injury to a "temporary worker" but not to an "employee." Policy [65-3] at 19, 27. As a purely practical matter, the work Bias performed looked temporary. But as noted below, the policy defines "temporary worker" to mean someone who is "furnished to" the insured. Therein lies the dispute. The relevant policy provisions are as follows:
SECTION II – LIABILITY COVERAGE
A. Coverage
We will pay all sums an "insured" legally must pay as damages because of "bodily injury" or "property damage" to which this insurance applies, caused by an "accident" and resulting from the ownership, maintenance or use of a covered "auto."
....
B. Exclusions
This insurance does not apply to any of the following:
....
4. Employee Indemnification And Employer's Liability "Bodily Injury" to:
a. An "employee" of the "insured" arising out of and in the course of:
(1) Employement [sic] by the "insured"; or
(2) Performing the duties related to the conduct of the "insured's" business
....
SECTION V – DEFINITIONS
....
F. "Employee" does not include a "temporary worker".
....
O. "Temporary worker" means a person who is furnished to you to substitute for a permanent "employee" on leave or to meet seasonal or short-term workload conditions.
Policy [65-3] at 17–18, 26–28.
Both parties agree that Mississippi law governs. Under Mississippi law, "questions concerning the construction and interpretation of contracts are questions of law" decided by the court. Royer Homes of Miss., Inc. v. Chandeleur Homes, Inc. , 857 So. 2d 748, 751 (Miss. 2003). And "when the words of an insurance policy are plain and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written." Lewis v. Allstate Ins. Co. , 730 So. 2d 65, 68 (Miss. 1998).
An insurance policy is ambiguous if the policy "can be logically interpreted in two or more ways, where one logical interpretation provides for coverage. However, ambiguities do not exist simply because two parties disagree over the interpretation of a policy." State Farm Mut. Auto. Ins. Co. v. LogistiCare Sols., LLC , 751 F.3d 684, 688 (5th Cir. 2014) (quoting U.S. Fid. & Guar. Co. of Miss. v. Martin , 998 So. 2d 956, 963 (Miss. 2008) ). If a term is undefined, the Court applies the term's "plain, ordinary, and popular meaning, not philosophical or scientific meaning." Id. at 688 (quoting Progressive Gulf Ins. Co. v. We Care Day Care Ctr., Inc. , 953 So. 2d 250, 253 (Miss. Ct. App. 2006) ). Finally, the Court construes provisions that limit or exclude coverage "liberally in favor of the insured and most strongly against the insurer," but it must interpret a policy as written when the language is clear and unambiguous. Id. at 688 (quoting Lewis , 730 So. 2d at 68 ).
Looking to the Ohio Security policy, the key question is whether Bias was Lee's employee or a temporary worker. As noted, there is no coverage for employees, but the policy does allow coverage for a temporary worker, a term the policy defines as "a person who is furnished to you to substitute for a permanent ‘employee’ on leave or to meet seasonal or short-term workload conditions." Policy [65-3] at 28. The policy does not define "furnished."
The parties agree that Bias did not substitute for a permanent employee, but they dispute every other aspect of this provision, including (1) the definition of "furnished to"; (2) whether that term applies to seasonal or short-term work needs; and (3) whether Bias was performing seasonal or short-term work. Because a question of fact exists whether Bias performed seasonal or short-term work, the Court focuses on whether he was "furnished to" Lee.
Although Lee's testimony was inconsistent, he did describe his hiring as "seasonal." Lee Dep. [71-2] at 37; see also id. at 70. He also testified that on the day of the accident, May 10, 2018, he needed Bias's help because Lee "had a little more work, you know, than what I thought I could handle." Id. at 149. This evidence must be viewed in the light most favorable to Plaintiff, and in that light creates questions of fact whether Lee retained Bias to "meet seasonal or short-term workload conditions." Policy [65-3] at 28.
Neither the policy nor Mississippi caselaw defines the term "furnished to." But the Fifth Circuit examined this identical policy provision in Parra v. Markel International Insurance Co. , 300 F. App'x 317 (5th Cir. 2008). There, the injured party "worked intermittently for [the insured] on an as needed basis." Id. at 318. Sometimes the insured would call the worker; other times, the worker would call the insured to ask for work. Id. at 319. "The district court concluded that the clause ‘person who is furnished to you’ required a showing that a third person rather than an agent or employee of the employer referred the temporary worker to the employer for employment." Id. The Fifth Circuit agreed, finding "that the policy's use of the term ‘furnished to’ is unambiguous and clearly requires the involvement of a third party." Id. (quoting Northland Cas. Co. v. Meeks , 540 F.3d 869, 875 (8th Cir. 2008) ); accord Gen. Agents Ins. Co. of Am., Inc. v. Mandrill Corp. , 243 F. App'x 961, 967 (6th Cir. 2007).
Parra is persuasive but not binding authority because the court did not select it for publication. See Fed. R. App. P. 32.1. Regardless, the reasoning is sound. When "determining the ordinary meaning [of a policy term, the Mississippi Supreme Court] will often consult leading dictionaries." Anglin v. Gulf Guar. Life Ins. Co. , 956 So. 2d 853, 860 (Miss. 2007). And requiring third-party involvement squares with the dictionary definition of "to furnish," which is "to provide with what is needed" and "supply, give." Furnish, Merriam–Webster.com , www.merriam-webster.com/dictionary/furnish (last visited September 22, 2020).
Finally, construing "furnished to you" as not requiring third-party involvement renders the term meaningless. See Cont'l Cas. Co. v. Hester , 360 So. 2d 695, 697 (Miss. 1978) (declining to construe policy language in way that renders some terms meaningless). The policy could have defined "temporary worker" to merely mean someone hired "to substitute for a permanent ‘employee’ on leave or to meet seasonal or short-term workload conditions." It didn't. The policy requires that such workers be "furnished to you [i.e., the insured]." Policy [65-3] at 28 (emphasis added). Again, this unambiguously requires "involvement of a third party" who furnishes the worker to the insured. Parra , 300 F. App'x at 319. So even if Parra is non-binding, the Fifth Circuit got it right.
Vigne hopes to distinguish Parra because it applied Texas law. Pl.'s Resp. [71] at 7. But Parra assessed whether "furnished to" was ambiguous under ordinary-meaning analysis, an analysis that applies equally in Mississippi and Texas. See Nautilus Ins. Co. v. Country Oaks Apartments Ltd. , 566 F.3d 452, 456 (5th Cir. 2009). Parra is applicable.
Vigne assumed the Court might reach that conclusion. She therefore offered an alternative construction of the provision as a whole, arguing that "furnished to" modifies only the phrase that immediately follows it. Again, the policy defines "temporary worker" to "mean[ ] a person who is furnished to you to substitute for a permanent ‘employee’ on leave or to meet seasonal or short-term workload conditions." Policy [65-3] at 28. So, the argument goes, "furnished to" does not modify those filling seasonal or short-term needs. The Eighth Circuit rejected this same construction in Meeks , holding: "The phrases ‘to substitute for a permanent employee on leave’ and ‘to meet seasonal or short-term workload conditions’ are parallel infinitive phrases that equally modify the verb "is furnished[.]" 540 F.3d at 875. The Court agrees that this is the plain meaning of the provision; Vigne must show that Bias was furnished to Lee by a third party.
Vigne addresses that point as well, arguing that her own deposition testimony creates a question of fact. Vigne knew little about Bias's employment, but she did drop him off in the mornings at Teddy Lee's house. Vigne Dep. [71-1] at 40. Teddy Lee is the insured's (Peewee Lee's) father, and he too had a paving company. Lee Dep. [71-2] 124–25. The day before the fatal accident, Vigne allegedly heard Teddy Lee tell Bias: "The truck is down. The truck is gonna be in the shop. So go and see if Peewee got something for you." Vigne Dep. [71-1] at 53. Bias did not work that day, and Vigne offers no record evidence explaining how Bias came to work for Peewee Lee the next day.
As an initial point, Ohio Security claims that the evidence is inadmissible hearsay. If so, it may not be considered at the summary-judgment stage. Fed R. Civ. P. 56(e) ; Fowler v. Smith , 68 F.3d 124, 126 (5th Cir. 1995) ("Evidence on summary judgement may be considered to the extent not based on hearsay or other information excludable at trial"). The hearsay question must be considered separately as to the two components of Teddy Lee's statement. First, "[t]he truck is down," would not be hearsay because it would not be offered for its truth. Lee Dep. [71-2] at 53. But that statement also fails to advance Vigne's position.
The second part of Teddy Lee's statement is different. Vigne testified that Teddy told Bias, "go and see if Peewee got something for you." Pl.'s Mem. [71] at 7. She says this demonstrates that Teddy Lee "furnished [Bias] to" Peewee. Id. Vigne offers no analysis showing why the statement is not hearsay, but she anticipates Ohio Security's objection in her memorandum and cites United States v. Reed , 908 F.3d 102 (5th Cir. 2018). See Pl.'s Mem. [71] at 4. Vigne parenthetically describes Reed as "holding statements not hearsay when used to show effect on the listener." Id. (citing 908 F.3d at 120 ). As a legal point, Vigne is correct; a statement offered for that purpose would not "[o]rdinarily" constitute inadmissible hearsay. Reed , 908 F.3d at 120. But there were only two listeners that day—Vigne and Bias—and Vigne never explains the purported effect on them or how it demonstrates that Teddy Lee furnished Bias to Peewee Lee. Thus, it appears that the real purpose for offering the evidence is to prove its truth rather than its effect on Vigne or Bias. See id. (affirming district court's decision to exclude hearsay statement that might have shown effect on listener but was otherwise inadmissible hearsay). Absent some other argument, the statement is not admissible.
Hearsay issues can be tricky. For example, had Vigne argued that the statement constituted a verbal act, she would need to show that it "actually affect[ed] the legal rights of the parties, or [that] legal consequences flow[ed] from the fact that the words were said." Arce v. La. State , No. 16-14003, 2017 WL 5896154, at *3 (E.D. La. Nov. 29, 2017) (quoting Echo Acceptance Corp. v. Household Retail Servs., Inc. , 267 F.3d 1068, 1088 (10th Cir. 2001) ). Teddy Lee's statement does not appear to be that direct. In any event, Vigne relied solely on her effect-on-the-listener argument, and the Court will not address theories that were never raised.
What remains is Peewee Lee's testimony describing his working relationship with Bias. Lee knew Bias before Lee hired him. Lee Dep. [71-2] at 84–87. And at some point, Bias called Lee looking for employment because he "got slow on work." Id. From there, Lee explained that "at times, if I needed him, I'd tell him yeah. And then if not, I'd tell him I didn't need him." Id. at 85. These communications flowed "both ways": "He'd call me. I'd call him." Id. at 92–93. The two worked off and on this way for about a month and a half before the accident. Id. at 88. Notably, Lee cannot recall who called whom about the job on May 10. Id. at 102. But he does remember that it happened "like the other days, that he would call or I would call." Id. at 103. Thus, either Lee or Bias initiated that day's employment. Lee never suggests that his father played a role in having Bias work for Lee that day.
For these same reasons, the excluded hearsay statement would not change the outcome even if considered. At most, the statement shows that Teddy Lee had no work for Bias on May 9 and told him to see whether Peewee Lee needed help. Bias did not work for either Lee on May 9, Vigne Dep. [71-1] at 53, and Lee never suggests that he in any way communicated with his dad about needing Bias May 10. So, at most, the evidence just supports Lee's testimony that this was one of those instances when Bias needed work and Lee hired him. Again though, the statement is inadmissible.
These facts are like those in Parra , where the injured party "worked intermittently for [the insured] on an as needed basis." 300 F. App'x at 318. Sometimes the insured would call Parra, other times Parra would call the insured seeking work. Id. at 319. These facts also distinguish Mendenhall v. Property & Casualty Insurance Co. of Hartford , a Missouri decision upon which Vigne relies. 375 S.W. 3d 90 (Mo. 2012). In Mendenhall , the court concluded that the injured worker had been "furnished to" the insured because the insured hired the worker based on another entity's recommendation. 375 S.W.3d at 93. Critically, the court found that absent the referral, the insured "would not have hired Mr. Mendenhall." Id. Here, Lee knew Bias before he ever hired him and had worked with him before hiring him on May 10. Moreover, Bias was the one who made the initial overture seeking work.
Vigne also mentions Greg Carter as a potential furnisher. Carter was Lee and Bias's mutual friend who apparently gave Bias Lee's number when Bias first needed work. But that is not the same as "furnishing"—i.e., "supplying" Bias to Lee. And once Bias approached Lee about work, it does not appear that Carter was in the picture, much less on May 10. At that point, Bias was an intermittent employee like in Parra. Id. at 319,.
In sum, "furnished"—as used in this policy—requires "involvement of a third party." Parra , 300 F. App'x at 319. And Vigne has not created a fact question whether anyone furnished Bias to Lee. Bias was not, therefore, a temporary worker whose injuries would be covered. Ohio Security's motion for summary judgment should be granted.
IV. Conclusion
The court has considered all arguments raised by the parties. Those not addressed in this Order would not have changed the result. For the reasons stated, Defendant Ohio Security's motion for summary judgment [65] is granted. This order closes Vigne's declaratory-judgement action [1-1] brought against Ohio Security. A separate judgment will therefore be entered under Federal Rule of Civil Procedure 58. Claims against the other defendants named in Vigne's Complaint were previously severed and remanded to the Circuit Court for Hinds County, Mississippi. See Sept. 6, 2019 Order [24] at 6.
SO ORDERED AND ADJUDGED this the 30th day of September, 2020.