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USF&G Insurance Co. of Mississippi v. Walls9/15/2005
ON MOTION FOR REHEARING
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND REMANDED TO THE CIRCUIT COURT OF PANOLA COUNTY-09/15/2005
MOTION FOR REHEARING FILED: 06/17/2005
EN BANC.
. The motion for rehearing is granted. The prior opinion is withdrawn, and this opinion is substituted therefor.
. Roxie Ann Wells and George K. Walls were in a car wreck. Roxie sued George, whose insurer was USF&G Insurance Company of Mississippi. USF&G paid Roxie $22,632.50 for the loss of her 1995 Chrysler Concorde, since George had rear-ended her with his 1991 GMC pickup. This claim was paid before any personal injury claim of Roxie was examined.
. Then Roxie attempted to recover from USF&G for her injuries. She was informed that George's policy had a single limit coverage of only $25,000 per accident--or just a little over two thousand dollars coverage left for that one accident. Roxie argued that the coverage was deficient under Mississippi statutory levels, and in a novel move, George agreed with her. Roxie dismissed her complaint against George, and together the two filed suit in chancery court against USF&G. However, we do not have before us today a complicated question of policy limits and insurance law. Instead, in their suit Roxie and George invoked an ancient Mississippi doctrine that has long been disfavored.
. Roxie and George filed suit in the Chancery Court of Panola County not just on behalf of themselves, but also "on behalf of a clearly ascertainable class of others similarly situated." This "class" allegedly consisted of USF&G insureds and those who were injured by USF&G insureds. The title of the complaint called it a "Class Action Complaint for Equitable and Injunctive Relief and Actual and Punitive Damages."
. USF&G objected to the complaint and moved to dismiss, arguing that class actions could not exist under Mississippi law. Despite its objections, the chancellor denied the motion and certified the plaintiff class. We granted USF&G's petition for interlocutory appeal, see M.R.A.P. 5, which asks one question: does Mississippi recognize "equitable class actions" in chancery, despite an omission of Rule 23 from our Rules of Civil Procedure? After a review of the history of the law, we answer that question in the negative.
DISCUSSION
. "Mississippi is one of only three states that never adopted Rule 23 as a part of their state rules of civil procedure." Richard T. Phillips, Class Action & Joinder in Mississippi, 71 Miss. L.J. 447, 453 (2001) ("Phillips"). "The other states which have no Rule 23 state court class actions, Virginia and New Hampshire, both expressly recognize 'equitable class actions' . . . in consumer litigation." Id. at 453 n.14. It has been theorized that Mississippi coped with the absence of a codified Rule 23 in three ways: "(1) the mass aggregation of individual claims under Rules 20 and 42 of the Rules of Civil Procedure, (2) the 'ancient equitable remedy' of the 'equitable class action' and (3) where all else fails, the prosecution of select individual cases for punitive damages." Phillips, at 455.
. It sounds a bit irrational to speak of Mississippi's "adoption" of Rule 23 after remarking how Mississippi does not have class actions. Yet a rule was adopted-after a fashion. When the Rules of Civil Procedure went into effect on January 1, 1982, they read (and still read):
Rule 23. Class actions. [Omitted].
Rule 23.1. Derivative actions by shareholders. [Omitted].
Rule 23.2. Actions relating to unincorporated associations. [Omitted]
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