Kendyl K. Smith v. Miranda Ford

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CA-00255-COA

KENDYL K. SMITH APPELLANT

v.

MIRANDA FORD APPELLEE

DATE OF JUDGMENT: 12/30/2021
TRIAL JUDGE: HON. DEWEY KEY ARTHUR
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: EDWARD C. TAYLOR
KATIE RYAN VAN CAMP
ATTORNEYS FOR APPELLEE: MICHAEL SALTAFORMAGGIO
SHARON ALGENA SPENCER
NATURE OF THE CASE: CIVIL - INSURANCE
DISPOSITION: AFFIRMED - 11/07/2023
MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., GREENLEE AND EMFINGER, JJ.

BARNES, C.J., FOR THE COURT:

¶1. After Miranda Ford sustained injuries when the car driven by Kendyl Smith rear-

ended Ford’s vehicle, Ford filed a lawsuit against Smith, alleging negligence and requesting

damages. A Rankin County Circuit Court jury found Smith liable to Ford for $302,968.92.

Smith filed a motion to amend the judgment, seeking credit for uninsured/underinsured

motorist (UM) coverage benefits Ford received from Allstate Property and Casualty

Insurance Company (Allstate), Ford’s automobile insurance carrier. The court denied the

motion, and Smith appeals.

¶2. As an issue of first impression, we conclude that UM benefits paid by an insurer to

an insured plaintiff fall under the collateral-source rule and may not be used to reduce a
judgment entered against a defendant tortfeasor. Accordingly, we find no error in the trial

court’s denial of Smith’s motion to amend the judgment and affirm.

FACTS AND PROCEDURAL HISTORY

¶3. On January 5, 2018, while driving her vehicle on Highway 25 in Rankin County,

Smith rear-ended Ford’s car, causing Ford bodily injury. Smith was insured by United

Services Automobile Association (USAA) with $25,000 in liability coverage. Ford had

automobile insurance through Allstate with $100,000 in UM coverage.

¶4. On January 3, 2019, Ford’s attorney issued a formal demand to USAA for $500,000

or policy limits, whichever was less. The correspondence stated that the demand would

remain open through the close of business on Friday, January 18, 2019. USAA tendered its

policy limits of $25,000 on January 21, 2019, the Monday following the expiration of the

offer. However, on March 14, 2019, Ford’s attorney advised USAA that the offer to settle

Ford’s claims for policy limits under the USAA policy was withdrawn and issued a demand

for $450,000.

¶5. In the meantime, Ford’s attorney also issued a demand letter to Allstate, noting that

Smith’s insurance limits would be “woefully inadequate to compensate” for Ford’s injuries

and requesting “available UM/UIM benefits, with any offset given where appropriate.” The

letter also requested that Allstate “provide written confirmation to settle with the tortfeasor

and confirm that you will waive any subrogation against Mr[s]. Smith.” On February 22,

2019, an Allstate representative responded with a letter stating, “We are waiving Med pay

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and UIM subrogation and consent to the settlement between your client Miranda Ford and

USAA.” Ford executed an agreement with Allstate on February 25, 2019, which provided

in part:

The undersigned hereby assigns, transfers and sets over to the Allstate
Property and Casualty Insurance Company any and all claims or causes of
action or which the undersigned now has, or may hereafter have, to recover
against any person or persons as the result of said accident and loss above
stated to the extent of the payment above made; the undersigned agrees that the
Allstate Property and Casualty Insurance Company may enforce the same in
such manner as shall be necessary or appropriate for the use and benefit of the
Allstate Property and Casualty Insurance Company. . . .

(Emphasis added).

¶6. On March 19, 2019, Ford filed a complaint against Smith in the Rankin County

Circuit Court, alleging negligence and seeking damages for personal injury, medical

expenses, pain and suffering, and mental anguish. A trial was held on December 13-15,

2021, and the jury awarded Ford $302,968.92 in damages.1 The court’s final judgment was

entered on December 30, 2021.

¶7. Smith filed a motion to amend the judgment under Mississippi Rule of Civil

Procedure 59, arguing that she was entitled to an offset for the monies paid to Ford under the

parties’ insurance policies ($25,000 from USAA and $75,000 from Allstate). Smith also

claimed that because Ford had “assigned $75,000.00 of her claim to Allstate, [Ford] cannot

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The breakdown of the damages is economic damages (including medical expenses)
of $100,468.92; non-economic damages (including pain and suffering) of $200,000; and
future medical care cost of $2,500.00.

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be compensated for the same bodily injuries for which she has been awarded in the Final

Judgment.”

¶8. In her reply, Ford requested that the trial court “deny [Smith’s] motion to the extent

that it calls for the judgment to be offset by the amount of Plaintiff’s [UM] coverage

th[r]ough Allstate.” Because USAA later issued Ford a check for $25,000 (for bodily injury

liability coverage) on January 6, 2022, Ford filed a “Notice of Partial Satisfaction of

Judgment” in April 2022 and agreed that the judgment should be amended to $277,968.92.

¶9. The circuit court denied Smith’s motion to amend the judgment. Smith appeals the

court’s ruling denying her motion, claiming that she is entitled to judgment credit for the

$75,000 in UM benefits that Allstate paid to Ford.

STANDARD OF REVIEW

¶10. A circuit court’s denial of a Rule 59 motion is reviewed for an abuse of discretion.

Miller v. Smith, 229 So. 3d 148, 154 (¶27) (Miss. Ct. App. 2016). “A party may only obtain

relief on a Rule 59 motion upon showing: (1) ‘an intervening change in controlling law,’ (2)

‘availability of new evidence not previously available,’ or (3) the ‘need to correct a clear

error of law or to prevent manifest injustice.’” Id. at 154-55 (¶28) (quoting Brooks v.

Roberts, 882 So. 2d 229, 233 (¶15) (Miss. 2004)). If the circuit court is “convinced that a

mistake of law or fact has been made, or that injustice would attend allowing the judgment

to stand,” then the circuit court has the discretion to “grant a new trial or to amend the

judgment” under Rule 59. McNeese v. McNeese, 119 So. 3d 264, 272 (¶20) (Miss. 2013)

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(citation omitted).

DISCUSSION

I. Collateral-Source Rule

¶11. Smith asserts that Ford “has effectively been placed in a better position, which does

not align with Mississippi [UM] motorist law, and [that] there has been, in effect, a double

recovery that must be corrected by an offset or credit in favor of Ms. Smith.” Ford responds

that “the general rule is that a defendant is not entitled to benefit from collateral sources like

insurance paid to the plaintiff that are unrelated to the tortfeasor.” While conceding that

“[t]he collateral source rule is ever alive in Mississippi,” Smith argues that the rule does not

apply under the circumstances of this case, and the parties acknowledge that there are no

Mississippi cases that have addressed whether the collateral-source rule may encompass UM

benefits.

¶12. The Mississippi Supreme Court has held that under the “collateral-source rule, ‘a

defendant tortfeasor is not entitled to have damages for which he is liable reduced by reason

of the fact that the plaintiff has received compensation for his injury by and through a totally

independent source, separate and apart from the defendant tortfeasor.’” Robinson Prop. Grp.

v. Mitchell, 7 So. 3d 240, 244 (¶12) (Miss. 2009) (quoting Cent. Bank of Miss. v. Butler, 517

So. 2d 507, 511-12 (Miss. 1987)); see also Fos v. Wal-Mart Stores E. LP, No. 3:12-cv-

735-LG-JCG, 2015 WL 11120671, at *2 (S.D. Miss. June 2, 2015) (“In Mississippi, the

collateral source rule provides that compensation or indemnity for the loss received by

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plaintiff from a collateral source, wholly independent of the wrongdoer, as from insurance,

cannot be set up by the latter in mitigation or reduction of damages.” (quoting Chickaway v.

United States, No. 4:11-cv-00022-CWR, 2012 WL 3236518, at *1 (S.D. Miss. Aug. 7,

2012))).

¶13. Smith urges this Court to follow the Connecticut Supreme Court’s decision in Haynes

v. Yale–New Haven Hospital, 699 A.2d 964 (Conn. 1997), which determined that UM

insurance is unlike “those traditional types of insurance” and “operate[s] in part as a liability

insurance surrogate for the [UM] third party tortfeasor.” Id. at 968. The Haynes court

“conclude[d] that, for the particular purpose of characterizing [UM] payments, the

relationship in the present case between the underinsured carrier and the defendant may be

viewed as analogous to that of joint tortfeasors, and thus that the general tort rule precluding

double recovery from joint tortfeasors should apply.” Id. at 969.

¶14. We disagree with the Connecticut Supreme Court’s reasoning in Haynes. Instead, we

find the following case more instructive to our analysis. In Hairston v. Harward, 821 S.E.2d

384, 385 (N.C. 2018), the Supreme Court of North Carolina considered whether a “trial court

erred by crediting a payment made to plaintiff . . . under his own [UM] coverage against the

amount of the judgment that plaintiff obtained against defendant . . . arising from a motor

vehicle collision.” In initially appealing the decision, the opposing parties submitted the

same arguments we consider here: the plaintiff asserted that the trial court’s ruling “violated

the collateral source rule”; the defendant-tortfeasor argued that under common law

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principles, a plaintiff “should not be permitted a double recovery for a single injury.” Id. at

387-88. The North Carolina Court of Appeals upheld the trial court’s decision,2 but the

North Carolina Supreme Court reversed the ruling, holding that “treating payments made as

the result of a plaintiff’s decision to purchase optional underinsured motorist coverage as

subject to the collateral source rule is more consistent with the policy justifications

underlying the collateral source rule . . . than is the result contended for by defendant in this

case.” Id. at 393. The Hairston court reasoned,

A decision that a plaintiff must credit the payment that he or she receives as a
result of the decision to purchase such optional coverage against the judgment
entered against the defendant whose negligence caused the plaintiff’s injuries
strikes us as likely to discourage North Carolina citizens from purchasing
[UM] coverage, a result that would have obvious deleterious
consequences. . . . [T]here is no escaping the fact that one party to this case or
the other will receive what could be fairly characterized as a “windfall” as a
result of our decision in this case. In light of that fact, we believe that the
better option is to allow plaintiff to retain the “windfall” that results from his
foresight in voluntarily electing to purchase underinsured motorist coverage
rather than allowing defendant, who failed to purchase enough liability
coverage to adequately compensate plaintiff for his injuries, to be the ultimate
beneficiary of plaintiff’s decision to procure additional insurance coverage.

Id. at 394 (emphasis added); see also Llewellyn v. White, 831 S.E.2d 494, 501 (Va. 2019)

(agreeing with Hairston and affirming trial court’s ruling that tortfeasor was not entitled to

$750,000 credit for UM benefits paid to insured plaintiff); Cutsinger v. Redfern, 12 So. 3d

945, 952 (La. 2009) (“The [collateral source] rule reflects the beliefs that the tortfeasor

should not profit from the victim’s prudence in obtaining insurance, and that by reducing the

2
Hairston v. Harward, 808 S.E.2d 286, 293 (N.C. Ct. App. 2017).

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amount the tortfeasor would have to pay, the deterrent effect of the law would be

hampered.”). Like the insureds in these cases, Ford elected to purchase UM coverage, and

she was entitled to any payment resulting from her prudence in doing so.3

¶15. The Supreme Court of North Carolina’s reasoning in Hairston is consistent with

numerous other jurisdictions deciding this issue. In Ex parte Barnett, 978 So. 2d 729 (Ala.

2007), the plaintiff/insured was awarded a $35,000 judgment following an automobile

accident, and the defendant tortfeasor “moved for a set-off of $20,000 to account for the

[UM] insurance proceeds” the insured had received from her automobile insurer. Id. at 730.

On appeal, the Supreme Court of Alabama held “that UM insurance benefits are a collateral

source that may not be used to diminish an award in favor of the plaintiff.” Id. at 735. See

also Schwartz v. Hasty, 175 S.W.3d 621, 628 (Ky. Ct. App. 2005) (“Allowing tortfeasors a

credit or setoff for UIM payments would provide an unintended benefit to the tortfeasor and

relieve him of some responsibility for his actions, while depriving the injured party/insured

of the benefit of his payments of premiums for the insurance.”); Johnson ex rel. Johnson v.

Gen. Motors Corp., 438 S.E.2d 28, 36 (W. Va. 1993) (holding that “the collateral source rule

operates to preclude the offsetting of uninsured or underinsured benefits since the benefits

are the result of a contractual arrangement which is independent of the tortfeasor”); Est. of

Rattenni v. Grainger, 379 S.E.2d 890, 890 (S.C. 1989) (finding “no persuasive reason to

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Accord McDermott Inc. v. AmClyde, 511 U.S. 202, 219 (1994) (recognizing that
“making tortfeasors pay for the damage they cause can be more important than preventing
overcompensation”).

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distinguish underinsurance proceeds from other insurance proceeds that are subject to the

collateral source rule” and agreeing with trial court’s ruling “that the collateral source rule

applied because the benefits received were from the injured party’s own underinsurance

policy for which she paid the premiums”).

¶16. Finding these cases persuasive authority,4 we conclude that the UM benefits paid to

Ford constituted a collateral source for the purposes of the rule. Therefore, Smith was not

entitled to a credit for the amount of those benefits. See generally 22 Am. Jur. 2d Damages

§ 421 (2019) (“The amount recoverable for personal injuries is not decreased by the fact that

the injured party has been wholly or partly indemnified for the loss by proceeds from

accident insurance if the tortfeasor did not contribute to the payment of the premiums.”).

II. Assignment and Subrogation Waiver/Judicial Estoppel

¶17. Citing the assignment language from Ford’s release agreement with Allstate,5 Smith

also contends that Ford “could no longer personally recover the $75,000.00 she received in

UM benefits” and that “only Allstate has grounds to seek subrogation for the monies it paid

to [Ford].” Smith relies on our supreme court’s decision in Preferred Risk Mutual Insurance

Co. v. Courtney, 393 So. 2d 1328, 1332-33 (Miss. 1981), stating, “Absent an assignment,

4
See Griffith v. Gulf Ref. Co., 215 Miss. 15, 36, 61 So. 2d 306, 307 (1952) (noting
that although our appellate courts “are not bound by the decisions of courts of other
jurisdictions on similar questions, . . . it is proper for us to consider them and that we may
follow them only if we are satisfied of the soundness of the reasoning by which they are
supported”).
5
See supra ¶5.

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defendants in the circuit court cases remained liable for all damages because of the collateral

source rule.” (Emphasis added).

¶18. However, as Ford points out, Allstate expressly agreed (in the letter from an Allstate

representative to Ford’s attorney), to waive “UIM subrogation[.]” Anticipating this

argument, Smith contends that Allstate’s waiver was induced through Ford’s

misrepresentation that there had been a settlement with USAA; so Ford should be judicially

estopped from asserting that there was no assignment because Allstate had waived

subrogation. “The doctrine of judicial estoppel should be applied to prevent a party from

achieving unfair advantage by taking inconsistent positions in litigation.” Copiah County

v. Oliver, 51 So. 3d 205, 207 (¶9) (Miss. 2011) (emphasis added).

¶19. There is no evidence in the record to support Smith’s argument for judicial estoppel

because Ford’s demand letters for insurance benefits do not constitute judicial proceedings

or litigation; so the doctrine of judicial estoppel would not apply. See Jackson v. Harris, 303

So. 3d 454, 457 (¶9) (Miss. Ct. App. 2020) (“A party will be judicially estopped from taking

a subsequent position if (1) the position is inconsistent with one previously taken during

litigation, (2) a court accepted the previous position, and (3) the party did not inadvertently

take the inconsistent positions.” (emphasis added)).

¶20. We further find Hairston instructive in addressing this issue of waiver. The insurer

in Hairston also waived subrogation, which factored into the trial court’s ruling that the

“defendant was entitled to a credit for the amount that [the insurer] had paid to plaintiff.”

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Hairston, 821 S.E.2d at 386-87. The Supreme Court of North Carolina disagreed with the

trial court’s reasoning, holding:

Had [the insurer] refrained from waiving its subrogation rights and attempted
to assert those rights against defendant, the same protection against a windfall
recovery would exist in this case. We see no reason why [the] defendant
should be entitled to different treatment simply because [the insurer] elected
to waive its statutory subrogation rights rather than attempting to enforce them.

Id. at 395. “[T]his is a situation where a double recovery is appropriate because plaintiff

bargained for such a double recovery when he purchased his [UM] policy[, and t]he fact that

[the UM insurer] has claimed no subrogation lien against plaintiff is irrelevant.” Stanford

v. City of Flora, 112 N.E.3d 136, 145 (Ill. App. Ct. 2018). Similarly, we find that Allstate’s

decision to waive subrogation rights should have no effect on Smith’s liability under these

circumstances.

¶21. Finding no error in the trial court’s denial of Smith’s motion to amend the judgment,

we affirm.

¶22. AFFIRMED.

CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD,
LAWRENCE, SMITH AND EMFINGER, JJ., CONCUR. McCARTY, J., CONCURS
IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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