IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-01477-COA EMMA BELL AND JOHN BELL APPELLANTS

v. CERTAIN UNDERWRITERS AT LLOYD’S LONDON, SUBSCRIBING TO POLICY NUMBER - TCN034699, SOUTHGROUP INSURANCE AND FINANCIAL SERVICES, LLC AND TAPCO UNDERWRITERS, INC. APPELLEES

DATE OF JUDGMENT: 09/11/2014 TRIAL JUDGE: HON. LAMAR PICKARD COURT FROM W HICH APPEALED: CLAIBORNE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: ALTON EARL PETERSON LARRY STAMPS ATTORNEYS FOR APPELLEES: JASON BROOKS PURVIS DAVID A. BARFIELD LARA A. COLEMAN NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND PROPERTY DAMAGE TRIAL COURT DISPOSITION: GRANTED APPELLEES’ MOTIONS FOR SUMMARY JUDGMENT DISPOSITION: AFFIRMED - 08/23/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ISHEE AND WILSON, JJ. WILSON, J., FOR THE COURT: ¶1. Em m a B ell ( “Em m a”) a nd her husband, John Bell (“John”), f iled s uit against Certain Underwriters at Lloy d ’s London (“Underwriters”), TAPCO Underwriters Inc. (“TAPCO”),

a n d S o u t h G r o u p I n s urance and Financial Services (“SouthGroup”) af ter Underwrit e r s d e n i e d
Em m a’s claim f

or property dam age related t o t h e c o l l apse of a barn on her land in PortGibson. Underwriters denied the claim because it concluded t hat Em m a’s insurance policy

covered o nly a s m aller b uildi n g on the property and not the barn. E m m a d isagrees and alleges t hat Underwriters denied her claim in bad f aith. She also alleges that, if t he barn is

n o t covered, t h en the def e ndants negligently or f

raudulently m isrepresented that it was or negligently f

ailed to obtain c overage f or it. The circuit court ruled t h a t the plain language of the policy c overed only the sm aller building, not the barn, and t hat this would have been apparent to the Bells had they ever read the policy

. A c c ordingly , the court granted sum m ary judgm ent in f

avor of all def

e ndants. F or the reasons e x plained below, we agree and af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. In A pril 2 0 11, Emma p u r c h a s ed a property in Port Gibson on which two buildings

were located: (1) a wood-f ram ed barn that m easured approxim ately 6,000 to 8,0 0 0 s quare f eet, and (2) about t hree f eet a way f

rom the barn, a m etal building t hat m easured approxim a tely 9 00 to 1, 1 0 0 s quare f eet. The barn did not have plum bing or electricity , whereas the m etal b uilding did. John subsequently rented the m etal building to a wom an who used it as a y oga or exercise studio. ¶3. In August 2011, John called L e m M o n t g o me r y a t S o u t h Group about obtaining insurance f

or the property

. Montgom e ry prepared a n application f o r E m m a, and she signed it, although the Bells testif i ed that neither of them read the application. Em m a’s application sought coverage f

o r o ne building, a 900 square f oot “ALL ST E E L ” b u i l d ing. The application r epresented that the b u i l d i n g w o u l d b e u s e d a s a n “ E X E R C I SE C ENTER-YOGA, PILATES, ETC.” The application f urther stated that the building was built in 1966 and that

2plum

bing, wiring, and heating sy stem s were installed at a later date. ¶4. SouthGroup obtained insurance f or the Bells f

rom TAPCO under a policy issued by Underwriters. In relevant part, the policy def ines the “Covered Property ” a s “the bui lding

or structure described in the Declarations.” The D ecla r a t i ons i dentif y a “ONE STORY
STEEL BUILDING” t o be used as a “YOGA/PILATES S TUDIO.” The property was insured at a replacem ent cost of $ 75,000. The Bells testif ied t hat they did not read t he policy

. ¶5. In May

2012, the barn collapsed during high winds, and Em m a m ade a claim under her policy

. Underwriters sent a third-party a djuster t o t h e s i t e within day s. The adjuster docum ented that t he b arn appeared to be a total loss a nd estim a ted that its replacem ent cost would b e in excess of $ 150,000; however, the ad j u ster a lso noted that another b uilding on the prem ises—the y oga s tudio—was still standing, appeared to be around 900 square f eet,

was “not attached to” the barn , a n d appeared to be about f if ty y ears o ld. The adjuster suggested that this seem e d to m atch the description of the insured building. ¶6. Underwriters also re t a i n e d a fo r e n sic engineer, Charles Rutter, t o review the c laim and investigate the cause of the collapse. Rutter visited the site on J u ne 13, 2012. He noted that the barn was b u i l t around 1948. He a lso noted that the m etal building was located thirty

three inches f

rom the barn’s f

oundation. A door on the m etal building lined up with a door

on the collapsed b a rn; however, there was “[ n]o e vidence of f asteners o r f

ram ing

. . . to indicate t hat the m etal building and barn were connected.” Rutter theref ore concluded that the m etal building was “an independ e n t structure” and “was not part o f the collapsed
structure.” O n October 4, 2012, U nderwriters denied Em m a’s claim on the ground that the

3policy

covered only

the sm aller m etal building, not the barn. ¶7. Montgom ery subseque n t l y a s k e d U n d erwriters to reconsider its decision deny ing
coverage. In a March 2013 em ail, Montgom e ry stated that John had requested a policy coverin g both the barn a nd t he y o ga studio, which John m aintained were connected and a single building. Montgom e ry sta ted that John told him that the com bined building was “around 9 000 square f

e et” a nd that the 900 square f eet ref lected in the application was a ty po by Montgom ery . Montgom ery also stated that, based o n his prior experience with John, he did not believe that John would have insured the y oga studio alone f or $75,000. ¶8. In response to Montgom ery ’s request, Underwriters reopened its investigation of the claim , a n d on April 5, 2 013, their attorney requested that Em m a subm it to an “exam ination under oath” (“EUO”) in accordance w i t h t h e t e r ms of the policy

. On April 16, 2013, the Bel l s f i l e d suit against Underwriters, TAPCO, and SouthGroup in the Circuit Court of Claiborne County

. T heir com plaint asserted claim s f

or f raud, tortious b reach of contract, bad
f aith, and negligence. Through their attorney , the B ells rejected Underwriters’ request f or an EUO and stated that Em m a would agree to a deposition instead. ¶9. I n h e r deposition, Em m a testif ied that there were “ [ t ]wo separate buildings” on h e r
p r operty —“a big o n e [ (the b arn)] and a little o ne [ (the steel building)]”—and that the t w o buildings were “not connected.” The county tax assessor’s record s a l so identif ied two separate buildings on the property

. Em m a knew l i t t l e else about the buildings or the insuran c e policy

. She testif ied that John called Montgom e r y about c overage and that she signed the application but never read it or her policy

.

4¶10. I n his deposition, J ohn claim ed that the barn a nd y o ga studio constituted a s i n g l e

building and t hat a door of the m etal building was connected by an enclosed, unf i n ished walkway t o a f

acing d oor of the barn. John testif ied that he rem oved all of the debris f rom the walkway a f

ter the barn collapsed, although he lef t t he debris f

rom t he barn where it f

ell. John also testif

ied that h e d id n ot t ell Montgom ery any thing about t he square f

ootage of the buildings because he “didn’t even know.” He testif ied that he d id not m ention 900 square f eet or 9,000 square f

eet or any other num

ber to Montgom e ry . ¶11. On July 1 , 2014, Underwriters and TAPCO f iled a m otion f

o r s u mmary

judgm ent, arguing, inter alia, that the barn was n ot covered by the policy ; that the Bells were charged with knowledge of the c ontents of the application and policy ; that there was no evidence that the def endants f ailed to investigate the c laim properly ; a nd that the Bells’ claim s were barred because o f Em m a ’s r e f

usal t o subm it to a n EUO. Underwriters a nd TAPCO requested that the court enter sum m ary judgm ent in f avor of all def

endants (including SouthGroup) on all claim s or, alternatively , enter sum m ary judgm ent as to the claim s against them

. ¶12. By order entered on August 29, 2014, the c ircuit court ruled that the “[ d ] e f e n d a n t s [ were] entitled to j udgm ent as a m a tter of law” and g ranted Underwriters’/TAPCO’s m otion
f or sum m ary j udgm ent. The c ourt’s o rder did not specif y wh e t h e r i t applied to t he Bells’ claim s against SouthGroup. On Septem ber 8, 2014, the circuit court entered a “Rule 54(b) Final Judgm ent” based on its prior sum m ary judgm ent ruling. The judgm ent stated, “Final Judgm ent pursuant to Rule 54(b) o f the Mississippi Rules of Civil Procedure s hould be and hereby is entered.” The court’s apparent intent was to certif y f inal j udgm ent as to a ll claim s

5against Under w r i t e r s a n d T APCO, but the record contains no Rule 54(b) determ ination or

other explanation o f the reas o n f o r doing so. Finally , on Septem ber 17, 2014, the circuit

court entered an order “clarif y ing” its prior order granting sum m ary judgm e nt a nd ruling that all def e ndants, including SouthGroup, were entitled to sum m ary j udgm ent on all claim s. The

court explained that Em m a had an obliga t i o n t o read her policy a nd application; that the policy clearly covered only t he sm aller steel building and n ot the barn; a nd, t heref ore, that it would have been unreasonable to rely on any re p r e sentations to the c ontrary

. The Bells
f iled a notice of appeal on October 14, 2014.
DISCUSSION ¶13. On appeal, the Bells argue t hat genuine issues of f act exist as to whether t he barn was covered b y Em m a ’s p olicy and whether Underwriters c onducted a n adequate investigation, and t hey c ontend that Em m a’s f ailure t o read her application and p olicy does not def eat their claim s. Underwriters and TAPCO respond t hat the Bells f a iled to f i l e a t i m ely notice of appeal, that sum m ary j udgm e nt was proper, and that the Bells’ claim s a l so c ould have been dism issed based on Em m a’s ref usal to subm it to an EUO. 1 SouthGroup a lso a rgues that the Bells’ f ailure to com

ply with the circuit court’s pretrial orders is a n a l ternative g round f or af f irm ance. For the reasons that f ollow, we conclude t hat t he Bells’ appeal was tim ely and that the circuit court correctly e ntered s um m ary judgm ent i n f avor o f all def

endants. Because

we af f irm the circuit court f

or essentially the r easons stated i n its f inal o rder on sum m ary judgm ent, we do not address the def endants’ alternative argum ents f or af f irm ance.

1 S ee T a ylo r v. F irem a n ’s F

u n d In s. , 3 0 6 S o . 2 d 6 3 8 , 6 4 4

- 4 5 (M iss. 1 9 7 4 ); U .S

. F id

. & G u a r
. C o . v. Wig

g in to n , 9 6 4 F .2 d 4 8 7 , 4 9 0 (5 t h C ir. 1 9 9 2 )

.

6I. The Bells Filed a Tim ely Notice of Appeal

¶14. Underwriters’/TAPCO’s argum ent that the Bells’ notice of appeal was not tim ely is twof old. First, with respect to the circuit court’s entry of sum m ary judgm ent on the Bells’ claim s against them , t hey argue that the Bells w ere required to f i le a notice of appeal within thirty day s of the circuit court’s “Rule 54(b) Final Judgm ent.” However, t he circuit court’s purported “Final Judgm ent” did not satisf y the requirem ents of

Rule 54(b) and so was not,
in f act, a f inal and appealable judgm ent. In p articular, the circuit court d i d n o t ma k e “an expressed determ ination t hat there was no just reason f or delay .” M.R.C.P. 54(b); Anderson

v. B ritton & Koontz Bank N.A. , 55 So. 3d 1130, 1132 (¶7) (Miss. C t. App. 2011); Jennings

v. McCelleis , 987 So. 2 d 1041, 1042 (¶7) (Miss. Ct. App. 2008). Nor does the record provide
any other explanation as to t he reasons f or the court’s e ntry of f

inal judgm e nt u nder Rule 54(b). Theref

ore, although the tim e f

or t aking an appeal begins to run o n t he date of a proper certif i cation of a f

inal judgm ent under Rule 5 4(b), s e e C a l vert v. Griggs , 992 So. 2d 627,
631-32 (¶10) (Miss. 2 008), the p urported Rule 54(b) judgm ent in this case was not properly certif i ed and, theref

ore, did not trigger the thirty

- day period f or an appeal. ¶15. Underwriters and TAPCO also argue that the Bells’ notice of a ppeal was f

iled m ore tha n t h i r t y d ay s af

ter the circuit court “ entered” f i nal judgm ent as to all d ef endants. However, Underwriters and TAPCO have c onf used the dat e on which the judgm ent was signed with the d ate on which it was entered

. “Except as [ otherwise] provided

. . . the notice of appeal

. . . shall be f

iled with the trial court clerk w ithin 3 0 day s af ter the date of entry of the judgm ent or order appealed f rom .” M.R.A.P. 4(a) (em phasis a dded). “ The date of entry

7of judgm ent is the date the judgm ent is entered in the general d ocket of the clerk of court.”

Id. , cm t.; see M.R.C.P. 58 & 79(a); Smith v. Parkerson Lumber Inc. , 890 So. 2 d 832, 834-36 (¶¶12-19) (Miss. 2003). Here, the f inal judgm ent was s igned on Septem b er 11, 2014, but it

was not entered o n t he d ocket until Septem ber 17, and the Bells t hen f iled a tim ely notice of appeal on October 14. Accordingly , we have jurisdiction of the appeal.
II. The Circuit Court Properly Granted Sum m ary Judgm ent ¶16. W e review t he circuit c ourt’s g r a n t o f s um m ary judgm ent de novo. Hayne v. The
Doctors Co. , 1 45 So. 3d 1175, 1180 (¶10) (Miss. 2014). Sum m ary “judgm ent . . . shall be rendered f

orthwith i f the pleadings, depositions, answers to interrogatories and adm issions

on f ile, together w i t h t h e af

f i davits, if any , show that there i s no g enuine i ssue as to any

ma t erial f

act and t hat the m oving party is entitled to a judgm e n t as a m atter o f l a w . ”
M.R.C.P. 56(c). The evidence m ust be viewed in the light m ost f avorable to the non-m oving party , Forbes v. Gen. Motors Corp. , 99 3 S o . 2 d 8 2 2 , 8 24 (¶7) (Miss. 2008), b ut a nonmo v i n g “ p a r t y m ay not rest upon the m ere allegations or denials of his pleadings, but his
response, b y af

f idavits or as otherwise provided in this r ule, m ust set f orth specif

ic f acts showing that there is a genuine issue f or trial.” M.R.C.P. 56(e). This case prim arily involves the p roper interpretation of an insurance policy , which is a question of law also subject to de novo review. Hayne , 145 So. 3d at 1180 (¶10). ¶17. “The language and provisions of i nsurance policies are viewed as c ontracts and are subject to the sam e rules of interpretation as o ther co n t r a cts.” Id. at (¶12). “The analy sis

m ust begin with the language of the policy , w hich ‘either af f o rds coverage or not, based upon

8application of the policy language to t he f acts presented.’” I

d. (quoting H

ankins v. Md. Cas. Co./Zurich Am. I

ns. , 101 So. 3d 645, 653 (¶18) (Miss. 2 012)). “Because insurance policies

are creatures of contract, if the language is clear and unam biguous, then the language of the policy m ust be interpreted as written.” Id. ¶18. In this case, the circuit court correctly concluded that the plain language of t he policy covered only the sm aller steel buil d i n g , n o t the barn. The Bells point t o nothing in their policy that suggests ot h e rwise. T he policy and application 2 consistently describe a 900
square f oot a ll steel building, with electricity and plum b ing, to be used as a y o ga or exercise studio. The barn w as several tim es that size , h a d a w ood f ram e, l acked electricity and plum bing, and indisputably w as never used as a y oga or exercise s tudio. The application and policy both perm itted the listing of m ultiple buildings, but neither identif i ed the b arn. Even
Em m a, the owner of the property and the policy , recognized that the sm aller steel building and the b arn were separate buildings, as did the county tax assessor. John insists that these

two very d if

f e rent s tructures w ere actually a s i ngle, integrated building because t h e y w e r e connected by a covered w alkway

. But the m ere f act t hat t here is a w alkway between two b u i l d i n g s does not m a ke them one building. Nor can John’s s ubjective belief in t h e buildings’ oneness o v ercom e the p lain language o f t he policy , which inescapably describes the s m aller steel building, not t he barn. The circuit court correctly c oncluded that there was

2 U n d er M ississip p i law , “th e a p p licatio n a t t a c h e d to o r g iv in g rise to an in su ran ce p o licy is a p art o f th e in su r an ce co n tract, an d th e p o l icy sh o u l d b e co n s tru e d to g eth er w ith t h e a p p l icatio n .” P ro vid

en t L ife & A cc. In s. v
. G o el , 2 7 4 F

. 3 d 9 8 4 , 9 9 3 (5 th C ir. 2 0 0 1 ) (alteratio n o m itted ) ( q u o tin g K eith A

. R o w ley , C o n tra ct C o n stru ctio n a n d In terp reta tio n : F r o m th e “ F o u r C o rn ers” to P a r o l E v id en ce ( A n d E ver y t h i n g i n B e tw een

) , 6 9 M iss. L .J. 7 3 , 1 8 1 (1 9 9 9 )). 9no coverage under the policy

.

¶19. The circuit c ourt a lso correctly concluded t hat t h e Bells’ claim s f or negligence and
f raud w ere precluded by their f ailure to read the p olicy . “[ The Suprem e] Court has held as

a m atter of law that an insured is charged with the knowledge of the term s of the policy upon which h e or she relies f

or protection.” Robichaux v. Nationwide Mut. Fire In s
. , 8 1 S o . 3 d
103 0 , 1 0 41 (¶31) (Miss. 2011) (quoting Mladineo v. Schmidt , 52 So. 3d 1154, 1161 (¶26) (Miss. 2010)). This is k n o w n as the “duty to read” o r “im puted knowledge” doctrine, and it is “ f irm ly rooted in Mississippi precedent.” Mladineo , 52 S o. 3d a t 1162 (¶26). Here, as discussed above, “the [ Bells] could have ascertained that [ the] p olicy did not c over [ the barn] by sim ply reading their policy .” Robichaux , 81 So. 3d at 1041 (¶31). A ccordingly , the Bells
“are im puted with knowledge” that Em m a’s policy did n ot cover t he barn. Id. It f ollows that their n e gligence claim f

ails as a m a tter of law because “the proxim ate cause of their dam age”

was their own f

ailure to “execute[ ] their duty to read the policy ,” not Montgom e ry ’s alleged negligence i n procuring it. Mladineo , 52 So. 3d a t 116 4 ( ¶ 3 8 ). L ikewise, any claim f or f raudulent or negligent m isrepresentation f ails as a m atter of law because the Bells could not have reasonably relied on an assurance o f c o v e r a g e “that d irectly contradicted the plain language of

the policy

they had in their possession.” Id. at 1166 (¶47). 3

3 In arg u in g th at th ey sh o u ld n o t b e b o u n d b y th e p lain lan g u ag e o f E m m a ’s p o licy , th e B e lls rely o n cases su ch as H o m e In s. C o
. o

f N ew Y o rk v. T h o rn h i ll , 1 6 5 M iss. 7 8 7 , 1 4 4 S o . 8 6 1 , 8 6 2 (1 9 3 2 ), an d P o n g e tti v. F irst C o n t’l L ife & A ccid

en ta l C o
. , 6 8 8 F

. S u p p . 2 4 5 , 2 4 7 ( N

. D

. M iss. 1 9 8 8 ). H o w ev er, th e issu e ad d ressed in th o s e cases w as w h e th er th e in su rer co u ld v o id th e p o licy b e cau se o f m a t e r i a l m i srep r esen t atio n s in th e p o licy ap p l icatio n . Wh en th e in su rer raises su ch a d ef en s e, th e in su red m ay attem p t to p ro v e th at s h e p ro v id ed th e in su r er w ith accu r ate in f

o rm atio n , w h i ch th e in su rer’s ag en t tran scrib ed in co rrectly

. In th is case, U n d erw riters d o es n o t seek to v o id th e p o licy b ased o n a n y alleg ed m isrep resen tatio n ; 1 0¶20. Finally , we note that t he def endants were entitled to sum m ary judgm ent as to any bad
f aith claim because “ [ a]n insured seeking to recover on a claim of bad f aith m us t f irst establish the existence of coverage on the underly ing claim .” Stubbs v
. M iss. Farm Bureau Cas. Ins. , 825 So. 2d 8, 13 ( ¶18) (Miss. 2002); s ee Essinger v. Liber t y Mut. Fire Ins. , 529 F.3d 264, 271 (5th Cir. 2 008); J ef f rey Jackson & Jason Childress, Mississippi Insurance Law and Practice § § 13:2 & 13:3 (2015). 4 Because n o claim w as o w e d under the policy , there can be no bad-f

aith denial of

the claim

. CONCLUSION ¶21. The c ircuit court properly g ranted sum m ary judgm ent t o all def endants because the plain language of Em m a’s p o licy did n o t p rovide coverage f or the barn. Theref

ore, we af f irm

. ¶22. THE JUDGMENT OF T HE CIRCUIT COURT OF CLAIBORNE COUNTY IS AFFIRMED. A LL C O STS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS. LEE, C . J . , I R

V I NG AND GRIFFIS, P .JJ., BARNES, ISHEE, C ARLTON, FAIR AND GREENLEE, JJ., CONCUR. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

rath er, i t s eek s to e n f

o r c e t h e p o licy acco rd in g t o its p lain l an g u ag e. T h is situ atio n is g o v ern e d b y

th e d u ty -to

- read cases d iscu ssed in th e tex t.

4 T h e treatise n o tes a p o ssib le e x cep tio n to th is ru le if an in su rer d en ies a c l a i m w i th o u t a r

ticu latin g an arg u ab le b asis f o r th e d e n i al b u t s u b seq u en t in v e stig a t io n rev eals f acts th at n eg ate co v erag e. S ee Jack so n & C h ild ress, su p r a , § § 1 3 : 3 n . 4 & 1 3 :7

. H ere, h o w e v e r, th e claim w as p r o p erly d en i ed b ecau se o f in f o rm ati o n a p p aren t w h en th e claim w a s d e n ied , i.e., th e p lain lan g u ag e o f th e p o l icy

d id n o t co v er th e b arn . 1 1