Horror Stories of the Judicial Kind
as told by Our Mississippi Injury Attorneys
Nowell v. Universal Electric Company, 792 F.2d 1310 (5th Cir. 1986)
The Defendant, Universal Electric Company, appealed the Plaintiff's judgment in the amount of $1 million to the Fifth Circuit Court of Appeals. The Fifth Circuit Court of Appeals allowed the Defendant/Appellant to expand its brief from the 50-page limit to 75 pages. Although the issue of the Court's instruction on comparative negligence was never challenged in any way by the Defendant/Appellant in briefs or oral argument, and even though the issue was not even raissed by the Court on oral argument, the Fifth Circuit Court of Appeals raised the issue on its own and took the plaintiff's verdict and jury award away.
The Court, without having offered the Plaintiffs/Appellees the opportunity to comment or brief the issue, reversed the decision by the United States District Court because it could not be certain that the jury considered the issue of any possible contributory negligence on the part of the deceased. The record reflected that the jury was voir dired specifically on the isse of comparative negligence and told in the opening statement that that would be an issue by the plaintiff's attorney.
Lelia Branning Tucker, et al v. Reliance National Insurance Company, 743 So. 2d 311 (Miss.1999)
A judgment of $2,471,000.00 was awarded to the wrongful death beneficaries of April Tenille Branning on July 17 1997, in the Second Judicial District of Hinds County, Mississippi, against Michael Tomlinson and Tomlinson Avionics, Inc., the actual airport manager and contract airport manager respectively, of Hinds community College District, leaseholder/owner of the airport. Reliance provided insurance converage to the named insured, Hinds. Under an endorsement captioned, "Special Airport Provisions," Reliance extended that coverage to "any airport manager of the named insured." In the body of the general liability policy, there was an exclusion for all damages resulting from the use of an aircraft owned by the named insured.
Reliance refused to voluntarily pay the judgment. The Plaintiffs filed garnishment proceedings in state court. Reliance removed the garnishment action to the United States District Court for the Southern District of Mississippi, Jackson Division. The Plaintiffs filed their Motion for Summary Judgment. After briefing, the matter was set for hearing.
The ensuing opinion held that there was no coverage because of the exclusion in the body of the policy which excluded damages from the use of aircraft owned by the "named insured" by some sort of judicial flat declaring "airport manager" to be a name. The Court's opinion did not try to explain how the use of an aircraft owned by a non-named insured, the airport manager of the named insured, triggered the named insured exclusion.
The Plaintiffs appealed to the fifth Circuit Court of Appeals fully expecting to be successful. After all, the tortfeasor was not a named insured owner of the aircraft, and was the covered airport manager. (How could the unnamed airport manager of the unnamed insured ever be considered a named insured unless defined as such?) The burden is on the drafter of the insurance policy to show the lack of any ambiguity in coverage in general, and each exclusion in particular. The insured, as drafter of the policy, must also exclude every reasonable or even plausible argument in favor of coverage or against exclusion. Nationwide Mutual Insurance Company v. Garriga, 636 So. 2d 658 (Miss.1994). The insurer must clearly show that there is no reasonable or plausible argument for coverage under the policy. If a "plausible argument for coverage can be made, then there is coverage." Universal Underwriters Insurance v. Ford, 734 So. 2d 173, 176.
Contrary to the naive expectations of the plaintiffs, the Fifth Circuit did not reverse the trial court. The Heirs and Wrongful Death Beneficiaries of April Tenille Branning filed a Petition for a Writ of Certiorari in the United States Supreme Court. As expected, the United States Supreme Court failed to take up the case of the aggrieved personal injury diversity plaintiffs; the Petition was denied on November 1, 1999.