IN THE SUPREME COURT OF MISSISSIPPI

NO. 95-CT-00868-SCT

EVELENE COLEMAN

v.

MISSISSIPPI FARM BUREAU INSURANCE

COMPANY, ROGERS MCKINNEY AND JEH

ENTERPRISES, INC.

ON PETITION FOR WRIT OF CERTIORARI

DATE OF JUDGMENT: 08/15/95

TRIAL JUDGE: HON. JOHN LESLIE HATCHER

COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: MICHAEL T. LEWIS

PAULINE S. LEWIS

ATTORNEY FOR APPELLEES: WILLIAM G. WILLARD, JR.

NATURE OF THE CASE: CIVIL - INSURANCE

DISPOSITION: REVERSED AND REMANDED - 1/29/98

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 3/18/98

EN BANC.

BANKS, JUSTICE, FOR THE COURT:

¶1. This case is before the Court on a Petition for Writ of Certiorari. The issue presented is whether a

declaratory judgment favorable to the insurer in an action to determine coverage between an

automobile liability insurer and the insured, as a matter of res judicata, precludes the injured person

who was not a party to the declaratory judgment action from litigating the question of coverage in a

subsequent action or proceeding instituted by her against the insurer. It is an issue of first impression

in this Court. We conclude that there is no res judicata bar.

I.

¶2. Brothers Rogers and Claude McKinney owned JEH Enterprises as equal partners. Their company

had a U.S. Government contract to deliver mail between Greenville and Rena Lara. The company

used a van, titled in Rogers McKinney's name, to deliver the mail. JEH paid the note on the van.

Rogers purchased automobile insurance for the van from Mississippi Farm Bureau Insurance

Company (Farm Bureau). On or about June 23, 1992, Farm Bureau notified Rogers that they would
not renew the insurance policy. After shopping for other insurance, Rogers and his brother Claude

entered into a "handshake deal" whereby Rogers transferred ownership of the van to Claude, and

Claude agreed to insure the van. Rogers never actually transferred the van's title to Claude or JEH

Enterprises.

¶3. On June 24, 1992, Claude applied for insurance with Farm Bureau. On the application for

insurance, Claude listed himself and his wife, Omelia, as those who would drive the van. Farm

Bureau issued an insurance policy to Claude. Claude testified in his deposition that he informed the

Farm Bureau agent that JEH would continue to use the van for the same purposes as when Rogers

had the insurance. Claude further stated that the agent understood that Rogers would continue to

share the driving responsibilities.

¶4. On December 18, 1992, Rogers McKinney, while driving the van, collided with Evelene

Coleman. Shortly thereafter, a claim was filed with Farm Bureau. Following receipt of the claim,

Farm Bureau contacted the McKinneys, and made an investigation of the accident. When Farm

Bureau investigated the accident, it determined that information provided by Claude on the insurance

application was false. On March 26, 1993, Farm Bureau filed an action in chancery court, asking the

court for a declaration that the policy was void ab initio since Claude obtained the insurance by

putting false information on the insurance application. Specifically, Farm Bureau alleged that Claude

McKinney falsely identified himself as the van's owner and failed to identify Rogers McKinney as a

potential driver. Farm Bureau also refunded the insurance premium that Claude had advanced.

¶5. On April 1, 1993, four months after the accident, Coleman requested information from Farm

Bureau regarding the van's insurance. Farm Bureau never answered her request for information, and

did not inform her about the declaratory suit it had filed, although Farm Bureau had actual

knowledge that Coleman was seeking insurance coverage applicable to her automobile collision.

Coleman was not named a party in the declaratory action nor was she served notice that such an

action had been filed. On May 7, 1993, Coleman filed a suit in Bolivar County Circuit Court for

damages against Rogers McKinney and JEH Enterprises alleging $500,000 in compensatory

damages. On June 9, 1993, the chancery court declared the policy in question void ab initio. The

chancery court heard no evidence in reaching its decision; the Chancellor merely signed a judgment

which counsel for Farm Bureau had prepared.

¶6. On May 7, 1993, Coleman filed a complaint in the Circuit Court of Bolivar County against

Rogers McKinney and JEH. Farm Bureau received notice of Coleman's lawsuit on January 3, 1994

and immediately declined to defend the McKinneys. On November 2, 1994, the Circuit Court of

Bolivar County entered an agreed judgment providing for a $750,000 judgment in favor of Coleman-

-the bodily injury limit under the Farm Bureau policy. On November 18, 1994, Coleman filed a

garnishment action against Farm Bureau to obtain the judgment amount under the Farm Bureau

policy. Farm Bureau moved for summary judgment against Coleman's garnishment writ. Farm

Bureau's motion was based upon res judicata and specifically upon the June 9, 1993 chancery court

finding that declared the McKinneys' insurance policy void ab initio. The circuit court granted

summary judgment based upon garnishment principles, and did not address the issue of res judicata.

Thus, summary judgment was granted in favor of Farm Bureau by the chancery court declaring the

policy in issue void ab initio, without notice given to Coleman or her attorney, and without her

knowledge or presence. This summary judgment was followed by another summary judgment granted
in favor of Farm Bureau by the circuit court based on the prior summary judgment in the chancery

court. The Court of Appeals affirmed the circuit court in a per curiam affirmance memorandum

opinion attaching the order issued by the Circuit Court of Bolivar County, which was based upon

garnishment principles, and did not address the issue of res judicata or notice.

II.

¶7. Coleman initially argues that the chancery court's judgment declaring the insurance policy in issue

void ab initio does not bar her garnishment action under the principles of res judicata and collateral

estoppel. Although Farm Bureau based it motion for summary judgment on the principle of res

judicata, the trial court granted summary judgment on the basis of garnishment principles and

garnishment law; the order entered by the circuit court never uses the terms res judicata or collateral

estoppel. The order cites to Jones v. Southern Marine & Aviation Underwriters, Inc., 739 F. Supp.

315, 318 (S.D. Miss. 1988), aff'd, 888 F. 2d 358 (5th Cir. 1989) ("It is beyond cavil that judgment

creditors. . .seeking to garnish insurance policy proceeds, enjoy no greater rights than the insured

party. Thus, all defenses available to the insurer against its insured are available against third parties

seeking coverage under the policy."). The circuit court held:

If Farm Bureau were Claude McKinney's debtor, there is no doubt that Coleman, as a judgment

creditor, would succeed in the garnishment action. However, the chancery court has already

deemed the insurance contract between Farm Bureau and Claude McKinney void ab initio.

Claude McKinney may not assert a claim against Farm Bureau on a void policy. Since Claude

cannot assert a claim against Farm Bureau, it follows that Coleman, as a judgment creditor

cannot. Coleman's assertion that the underlying chancery decree is defective is best addressed in

the chancery court. Farm Bureau, therefore, is entitled to judgment as a matter of law.

¶8. Although this is a correct statement of law as to garnishment principles, the question raised by

Coleman, and which must first be addressed, is whether Farm Bureau, knowing of an outstanding

claim for which it could be liable, is required to join the claimant in any action seeking to declare its

rights with respect to the policy and that claim. Put another way, the issue is whether the chancery

court's order is binding as to Coleman, who was not named a party to the action and was not noticed

as to the declaratory action.

¶9. The rule of law known as res judicata holds that when a court of competent jurisdiction enters a

final judgment on the merits of an action, the parties or their privies are precluded from relitigating

claims that were decided or could have been raised in that action. Aetna Cas. and Surety Co. v.

Berry, 669 So. 2d 56, 66 (Miss. 1996). In Aetna, we held that:

There are four identities that must be present before a subsequent action may be dismissed on

the grounds of res judicata:

(1) identity of the subject matter of the original action when compared with the action now

sought to be precluded; (2) identity of the underlying facts and circumstances upon which a

claim is asserted and relief sought in the two actions; (3) identity of the parties to the two

actions, an identity met where a party to the one action was in privity with a party to the other;

and (4) identity of the quality or character of a person against whom the claim is made.
Aetna, 669 So. 2d at 67 (citing Dunaway v. W.H. Hopper & Assoc., Inc., 422 So. 2d 749, 751

(Miss. 1992)) (emphasis added).

¶10. "Thus, res judicata applies to bar an action where the parties or their privies have previously

litigated a legal claim to a final judgment." Johnson v. Howell, 592 So. 2d 998, 1002 (Miss. 1991).

Further, where res judicata lies, it bars litigation in the second action "'of all grounds for, or defenses

to, recovery that were available to the parties. . .regardless of whether they were asserted or

determined in the prior proceedings.'" Dunaway, 422 So. 2d at 751 (quoting Brown v. Felsen, 442

U.S. 127, 131 (1979)).

¶11. In United Farm Bureau Mut. Ins. Co. v. Wampler v. Stephens, 406 N.E. 2d 1195, 1197 (Ind.

Ct. App. 1980) (citing Smith v. Midwest Mut. Ins. Co., 289 N.E. 2d 788, 793 (Ind. Ct. App. 1972)),

the Indiana Court of Appeals remarked that "[t]he fundamental principle of res judicata is that one is

not bound by a prior judgment unless he was a party to such action or stands in privity with one who

was a party." Id. (emphasis added). Additional authority holds that:

A judgment determining, as between an automobile liability insurer and the insured or a person

claiming to be insured, a question of coverage in favor of the insurer does not, as a matter of res

judicata, preclude the injured person from litigating the question of coverage in a subsequent

action or proceeding instituted by him against the insurer, since the injured person is not in

privity with any of the parties in the former proceeding.

Id. (quoting 7 Am. Jur. 2d Automobile Insurance § 229 (1963).

¶12. "'Privity implies a relationship by succession or representation between the party to the second

action and the party to the prior action in respect to the right adjudicated in the first action.'"

Hickman v. Southwest Dairy Suppliers, Inc., 230 N.W. 2d 99, 104 (Neb. 1975) (quoting Stamp v.

Franklin, 39 N.E. 634 (N.Y. 1895)). Coleman cites to Krohn v. Gardner, 471 N.W. 2d 391 (Neb.

1991).(1) In Krohn, the insurance company denied coverage to its insured, Gardner, following an

automobile accident. Gardner then brought a declaratory judgment action against his insurance

company, Farm Bureau. The trial court dismissed Gardner's action and found that no coverage

existed. The injured parties, the Krohns, obtained judgment against Gardner and filed a garnishment

proceeding against Farm Bureau. Farm Bureau moved for summary judgment on the ground of res

judicata, which the trial court granted. The Nebraska Supreme Court reversed and remanded holding

that an individual is not estopped or barred by res judicata if he was not a party to a prior

adjudication and does not stand in privity to one who was a party.

¶13. In Constant v. Pacific Nat'l Ins. Co., 201 A. 2d 405 (N.J. Super. Ct. Law Div. 1964), the

Superior Court of New Jersey held that the federal court's declaratory judgment that the liability

insurer was not liable with respect to a particular accident because of the insured's failure to submit

written notice was not binding on judgment creditors of the insured, who were not parties to the

federal court action and who sought to recover from the liability insurer. Constant, 201 A.2d at 412.

The Court stated:

Because of his purely derivative status, the judgment creditor or any person injured by the

assured obviously is an interested party in any and all proceedings which are held to determine

or construe the validity of the insurer's liability under the policy.
Constant, 201 A. 2d at 408.

¶14. In Southern Farm Bureau Cas. Ins. Co. v. Robinson, 365 S.W. 2d 454 (Ark. 1963), the

Arkansas Supreme Court held that a federal court's declaratory judgment relating to the insured's

compliance with policy provisions was not binding on the injured person, who had not been a party to

the declaratory judgment proceeding, and that there was substantial evidence that the insurer had

received notice of an Illinois action which the injured person had brought against the insured. The

Arkansas Court held:

On the specific point here in question, Professor Appleman in his comprehensive works,

Insurance Law and Practice, vol. 20, § 11371, states what appears to be the general rule as

follows:

Persons who have been injured in an automobile accident are certainly proper parties to a suit

by the liability insurer to determine coverage of its policy. . . . Hence, it would be error to

dismiss such person from the declaratory judgment suit. . . However, if the court does not or

cannot secure jurisdiction over them their rights cannot be destroyed by their non-appearance;

nor can such rights be determined where they are not made parties to the suit.

Robinson, 365 S.W. 2d at 457 (emphasis added).

¶15. Arkansas has a statute similar to that of Nebraska, and the Supreme Court of Arkansas further

held that:

Applying the rule as adopted to our consistent literal construction of the Arkansas Declaratory

Judgment Act (Ark. Stats. § 34-2501 et seq.), 'When the declaratory relief is sought, all persons

shall be made parties who have or claim any interest which would be affected by the

declaration, and no declaration shall prejudice the rights of persons not parties to the

proceeding. (citations omitted). [W]e conclude that the U.S. District Court's declaratory

judgment was not res judicata as to appellee who was not a party to the action.

Id. at 456. (emphasis added).

¶16. In Indiana Lumbermens Mut. Ins. Co. v. Passalacqua, 208 N.Y.S. 2d 1006 (N.Y. App. Div.

1960), the plaintiff brought a suit to determine the rights and obligations of itself and the defendants

under an automobile liability insurance policy issued by it to one of the defendants, who was involved

in an accident while driving a vehicle owned by another of the defendants. The owner of the vehicle

moved to dismiss the complaint on the ground that he was not a necessary party and that the suit

should await the outcome of the separate negligence action which would determine whether his own

insurance coverage would be adequate to compensate the injured person. In holding that the owner

was a necessary party, the court reasoned that "the plaintiff cannot obtain a complete adjudication of

its rights and obligations under its policy without [the owner's] presence. Any determination without

him before the court would not be res adjudicata as to him." Id., 208 N.Y.S. 2d at 1007. See also

Glandon v. Searle, 412 P. 2d 116, 118 (Wash. 1966) (holding that an injured person is not bound by

declaratory judgment as to automobile insurance coverage rendered in action in which the injured

person was not made a party); Shapiro v. Republic Indemnity Co. of America, 341 P. 2d 289, 291

(Cal. 1959) (holding that a judgment against an insured commenced by insurance company after the
collision was not binding on persons injured in collision who were not made parties to such action);

American Automobile Ins. Co. v. English, 94 So. 2d 397, 399 (Ala. 1957) (holding that where an

insurance company seeks to escape responsibility and to be relieved of the duty of defending, the

injured party is a necessary party to the insurance company's declaratory action).

¶17. Thus it appears that Coleman is correct in asserting that the declaratory judgment issued by the

chancery court to which she was not made a party, and for which she did not receive notice, does not

act as res judicata in her garnishment suit against Farm Bureau. Coleman is entitled to have the

liability issue adjudicated as part of her garnishment suit. Rogers McKinney stated in depositions that

the insurance company was well aware that he would continue to drive the van for purposes of mail

delivery, as he had previously done. The insurance company states that Claude McKinney said that he

and his wife, Omelia, were to be the only drivers of the van. As the court in Krohn held,

If the action of the district court is allowed to stand, the Krohns will leave emptyhanded, even

though another court found that they were entitled to $25,000 each as damages for the injuries

sustained in the auto accident. To say it simply, that is not fair. We agree with the Illinois

Appeals Court, which held that "[a]n accident victim must be given a chance to litigate the

question of the validity of a liability insurance policy before his interest in the insurance can

be terminated."

Krohn, 471 N.W. 2d at 395 (emphasis added) (quoting M.F.A. Mut. Ins. Co. v. Cheek, 340 N.E. 2d

331, 334 (Ill. 1977).

III.

¶18. The circuit court was correct in asserting that judgment creditors seeking to garnish insurance

policy proceeds enjoy no greater rights than the insured party. We hold, however, that a judgment

favorable to the insurer in an action to determine coverage between an automobile liability insurer and

the insured does not, as a matter of res judicata, preclude the injured person from litigating the

question of coverage in a subsequent action or proceeding instituted by him against the insurer, when

the injured party was not a party to the original proceeding.

¶19. This cause is remanded to the circuit court for a trial in the garnishment action and a

determination of whether Farm Bureau has liability notwithstanding the prior declaratory judgment.

¶20. REVERSED AND REMANDED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., ROBERTS, SMITH AND MILLS, JJ.,

CONCUR. McRAE, J., CONCURS IN RESULT ONLY. WALLER, J., NOT

PARTICIPATING.

1. We note that Nebraska has a specific statute which states that "[w]hen declaratory relief is sought,

all persons shall be made parties who have or claim any interest which would be affected by the
declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding."

Neb. Rev. Stat. § 25-21, 159 (Reissue 1989). Although we do not have such a statute, the comment

to Miss. R.Civ. P. 57 states in pertinent part: "Thus, the requirements of pleading and practice in

actions for declaratory relief are exactly the same as in the other civil actions. . .and the requirements

of compulsory joinder of those needed for just adjudication set out in Rule 19 are fully applicable."

Miss. R. Civ. P. 19 states in pertinent part that a person who is subject to the jurisdiction of the court

shall be joined as a party in the action if "(2) he claims an interest relating to the subject of the action

and is so situated that the disposition of the action in his absence may (i) as a practical matter impair

or impede his ability to protect that interest ."