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Supreme Court of Mississippi
December 8, 2011, Decided
NO. 2010-IA-00149-SCT CONSOLIDATED WITH NO. 2010-IA-00153-SCT
[*558] NATURE OF THE CASE: CIVIL - INSURANCE
PIERCE, JUSTICE, FOR THE COURT:
P1. On July 7, 2006, a fire occurred at the apartment building rented by Paul Booker Whittington, Jr., and Westbrook Cooper (Plaintiffs). Whittington died from injuries he sustained in the fire, while Cooper was injured but survived. The building was owned by William Lipscomb, and it was located on the same property as Lipscomb's residence. Plaintiffs sued Lipscomb in tort and amended their complaint to seek declaratory judgment against Lipscomb's insurer, the Automobile Insurance Company of Hartford, Connecticut (AIC), on the issue of coverage. AIC filed a motion to sever and a motion for summary judgment, which the trial court denied. AIC filed two separate petitions [**2] for interlocutory appeal and requested that the Court consolidate the two issues raised in the separate petitions. After reviewing the complaint, together with the insurance policy and the relevant deposition testimony, we have determined there is no genuine issue of material fact as to the issue of coverage, and that AIC's motion for summary judgment should have been granted.
P2. William Lipscomb owned and maintained his personal residence and rental property in Jackson, Mississippi. This property included a two-story building, set apart from the main house, that Lipscomb rented out as apartments. The first-floor apartment was rented by Whittington, the decedent, and the second floor was occupied by Cooper.
P3. On July 7, 2006, the fire started in the garage of the apartment building and spread to both the first and second floors. Cooper was forced to jump from his apartment out of a second-floor window and incurred several injuries. Whittington was unable to escape the fire, as the only door for ingress and egress was engulfed in flames. Whittington later died at a hospital from injuries he sustained in the fire.
P4. AIC insured the dwelling house owned by Lipscomb. The homeowners [**3] policy included personal liability coverage for bodily injury and property damage. After the fire, AIC denied coverage, citing two provisions: the first prevented coverage for bodily injury or property damage "arising out of or in connection with a business engaged in by any insured;" and the second prevented coverage for bodily injury or property damage "arising out of the rental . . . of any premises by any insured." Plaintiffs filed suit against Lipscomb for negligence, wrongful death, breach of building fire codes, breach of contract and implied warranty, and punitive damages. Later, Plaintiffs amended their complaint to include a claim for declaratory judgment against AIC. Lipscomb filed a third-party complaint against his insurance agent, Buddy Oliver, and The Insurance Mart, Inc., for failure to procure insurance coverage that would have protected Lipscomb against the claims asserted by Plaintiffs. The Plaintiffs claim that Oliver bound AIC with statements he made to Lipscomb before and after the fire. Lipscomb denies ever receiving a copy of his policy with AIC prior to the [*559] fire. 1 Oliver's business records show that he mailed a copy of the policy to Lipscomb on November 17, [**4] 2005. Oliver further claims that his company, The Insurance Mart, Inc., had procured an estimate for a general liability policy in January of 2006, after Lipscomb had attained his homeowners policy, but that Lipscomb had chosen not to purchase it.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
75 So. 3d 557 *; 2011 Miss. LEXIS 587 **
THE AUTOMOBILE INSURANCE COMPANY OF HARTFORD v. WILLIAM LIPSCOMB, WESTBROOK COOPER, AND HAROLD E. WHITTINGTON
Prior History: [**1] COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 01/06/2010. TRIAL JUDGE: HON. WINSTON L. KIDD.
Disposition: REVERSED AND REMANDED.
coverage, insured, mailed, rented, notice, summary judgment motion, rental, deposition, apparent authority, property damage, rental property, bodily injury, alleged misrepresentation, presumption of delivery, apartment building, homeowner's policy, material fact, trial court, apartment, genuine
Civil Procedure, Summary Judgment, Supporting Materials, General Overview, Appeals, Summary Judgment Review, Standards of Review, Entitlement as Matter of Law, Genuine Disputes, Materiality of Facts, Insurance Law, Liability & Performance Standards, Good Faith & Fair Dealing, Duty to Defend