                       IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2003-IA-01149-SCT

MS LIFE INSURANCE COMPANY AND MS
CASUALTY INSURANCE COMPANY

v.

JAMES BAKER, JR., ET AL.


DATE OF JUDGMENT:                           04/07/2003
TRIAL JUDGE:                                HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED:                  HUMPHREYS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                   WALTER D. WILLSON
                                            ROY H. LIDDELL
                                            CHARLES E. GRIFFIN
ATTORNEYS FOR APPELLEES:                    CHRISTOPHER WAYNE COFER
                                            HARRY MERRITT McCUMBER
NATURE OF THE CASE:                         CIVIL - INSURANCE
DISPOSITION:                                REVERSED AND REMANDED - 01/13/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       BEFORE WALLER, P.J., GRAVES AND RANDOLPH, JJ.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:


¶1.    James A. Baker, Jr., joined forty-four other plaintiffs in filing suit in Humphreys

County Circuit Court against Mississippi Life Insurance Company, Mississippi Casualty

Company, and fifty John Does (hereinafter referred to as Mississippi Life).      Generally, the

plaintiffs claim that Mississippi Life illegally required credit insurance as part of an offered

loan package and fraudulently inflated the cost of insurance premiums.         Mississippi Life
moved to sever plaintiffs' claims.      The trial court denied the motion as well as Mississippi

Life's subsequent Motion for Interlocutory Appeal.               We then granted the Motion for

Interlocutory Appeal. See M.R.A.P. 5.

                                                 FACTS

¶2.     Over a nine-year period, the forty-five plaintiffs in this action obtained loans from the

Belzoni office of Peoples Financial Services of the Delta.         The plaintiffs signed both the loan

agreement and an agreement to purchase credit life, credit disability, and/or credit property

insurance from Mississippi Life Insurance Company or Mississippi Casualty Insurance

Company.      With the exception of eight plaintiff-couples, each of the plaintiffs signed the

documents in question separately and independently of their co-plaintiffs.

¶3.     The relationship between Mississippi Life and Peoples Financial Services developed

after Mississippi Life executed an agency agreement for Peoples Financial Services to sell

credit insurance when offering loans to customers.             In return, Peoples Financial Services

received a commission for each sale of insurance.            The record contains the deposition of

James J. Jernigan, a General Agent for Mississippi Life who originally worked for Central

Insurance Services.1    He testified that Mississippi Life provided no formal training for Peoples

Financial Services' employees.      He stated that John Mitchell, President of Peoples Financial

Services, provided training for its employees.




        1
         Central Insurance Services was subsumed into Mississippi Life in 1992.

                                                    2
¶4.    In the six plaintiffs' depositions available, very little specific information is provided

about the transactions with Mississippi Life.2   However, four out of the six were consistent in

their testimonies to the extent that they alleged nothing was explained to them about the

transactions. One of the other two plaintiffs was not even aware she was suing Mississippi Life

and could provide almost no details about her experience. The other plaintiff testified that he

was not aware that he had credit disability insurance; and although he was pleased when, by

chance, he discovered he had such insurance, he felt aggrieved that his credit history had been

damaged in the meantime.

¶5.    Mississippi Life moved to sever the joined plaintiffs, citing the differences in the

property secured for each loan, the eleven-year period during which the loans were given, the

various combinations of insurance purchased, and the different employees who processed the

loans. In response to Mississippi Life's Motion to Sever, the plaintiffs alleged that: (1) Proof

of a conspiracy between Mississippi Life and Mississippi Casualty was evidenced by the

deposition of James Jernigan of Central Insurance Services who testified that Mississippi Life

paid an override commission of 10% to Central Insurance Services, "which [Central Insurance

Services] has admitted, through its corporate deposition, that it does not perform any of the

services, nor does it assume any of the responsibilities required under" Mississippi law; and

(2) Proof of a profit sharing scheme between Mississippi Life and Peoples was evidenced by

Jernigan's testimony "that the forms and disclosures were provided by [Mississippi] Life and




       2
        The record also contains a Notice of Depositions of several other plaintiffs by means
of video; however, if those videotapes or the transcripts of these depositions exist, they have
not been included in the record.

                                                 3
[Mississippi] Casualty with no input by Peoples [Financial Services]."3 The trial court denied

Mississippi Life's Motion to Sever, simply stating that upon considering the motion it found

joinder to be "proper under MS Rules [sic] Civil Procedure 20 and [t]he Mississippi Supreme

Court decision of American Bankers Insurance Company of Florida v. Alexander, [818 So.

2d 1073 (Miss. 2001)].

                                              ANALYSIS

¶6.     Mississippi Life raises two issues in its appeal.        First, whether severance was proper

under Mississippi Rule of Civil Procedure Rule 20(a).          And second, whether allowing joinder

in this action will result in a waste of judicial resources and a violation of Mississippi Life's

due process rights. Finding the first issue dispositive, we decline to address the second.

        A. Rule 20(a)

¶7.     Mississippi Rule of Civil Procedure 20 gives trial courts broad discretion in

determining when and how to try claims. First Investors Corp. v. Rayner, 738 So. 2d 228, 238

(Miss. 1999). Therefore, we review trial court decisions regarding venue and joinder for abuse

of discretion. Janssen Pharmaceutica Group, Inc. v. Bailey, 878 So. 2d 31, 45 (Miss. 2004);

Janssen Pharmaceutica Group, Inc. v. Armond, 866 So. 2d 1092, 1095 (Miss. 2004). We

also note that "a trial court . . . abuses its discretion by joining parties in cases failing to satisfy

the two requirements of Rule 20."         Armond, 866 So. 2d at 1097. Like federal courts, we


        3
          Further generalized allegations in the plaintiffs’ Response to the Motion to Sever
included, but were not limited to the following: Mississippi Life misrepresented the credit
insurance as being a necessary part of the loan package "with all or some [of] these insurance
products being misrepresented by the agents as a necessary prerequisite for the extension of
credit and receipt of a loan; and " Mississippi Life "failed to properly refund unearned
insurance premiums pursuant to the 'Certificates of Insurance' issued to the [p]laintiffs."

                                                    4
review cases involving a question of the propriety of Rule 20(a) joinder on a case-by-case

basis. See Mosley v. General Motors Corp., 497 F.2d 1330, 1333 (8th Cir. 1974).

¶8.     Under Mississippi Rule of Civil Procedure 20(a), joinder is only proper if both (1) the

different plaintiffs' causes of action arise out of the same transaction, occurrence, or series

of transactions or occurrences; and (2) some question of law or fact common to all the

plaintiffs will arise in the action.   Bailey, 878 So. 2d at 46 (citing Miss. R. Civ. P. 20(a)

(2004)).   The purpose of Rule 20(a) is to establish a "procedure under which several parties'

demands arising out of the same litigable event may be tried together, thereby avoiding the

unnecessary loss of time and money to the court and the parties that the duplicate presentation

of the evidence relating to facts common to more than one demand for relief would entail."

Miss. R. Civ. P. 20(a) cmt. (2004).

¶9.     We recently amended the comment to Rule 20(a) significantly, clarifying that before

an alleged "transaction or occurrence" will pass muster under Rule 20(a), the court must find

a "distinct litigable event linking the parties." Bailey, 878 So. 2d at 46 (citing Miss. R. Civ. P.

20(a) cmt. (as amended 2004)).         The amendment to the rule resulted in the deletion of some

of the language of the comment, including the statement that the "general philosophy of the

joinder provisions of these rules is to allow virtually unlimited joinder at the pleading stage[.]"

Miss. R. Civ. P. 20(a) cmt. (prior to 2004 amendment).          Our language requiring that joined

plaintiffs demonstrate the existence of a "distinct litigable event" semantically distinguishes

Mississippi Rule of Civil Procedure 20(a) from the requirement under Federal Rule 20(a) that

the claims between the different plaintiffs be "logically related."    See Mosley, 497 F.2d at

1333; Jamison v. Purdue Pharma Co., 251 F. Supp. 2d 1315, 1322 (S.D. Miss. 2003); Hanley

                                                  5
v. First Investors Corp., 151 F.R.D. 76, 78-79 (E.D. Tex. 1993); see also 6 Charles Alan

Wright & Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1410 (2d ed.

1990).

         B. Recent Cases Interpreting Pre-amendment Rule 20(a)

¶10.     In American Bankers Insurance Co. v. Alexander, 818 So. 2d 1073, 1075 (Miss.

2001), overruled on other grounds, Capital City Insurance Co. v. G.B. "Boots" Smith Corp.,

2004 WL 2403939, *11 (Miss. 2004), we dealt with a case of approximately 1371 borrower-

plaintiffs who sued a lender, arguing that the lender had used an intricate kickback scheme to

force-place the plaintiffs into a collateral protection insurance policy without their permission

and without regard for their individual need of insurance.           Citing, for the first time in a

Mississippi case, the now-stricken language of Rule 20(a) indicating that we "allow virtually

unlimited joinder at the pleading stage," the majority held that allowing joinder for the 1371

plaintiffs was not an abuse of discretion. Id. at 1075-79. The Court reasoned that joinder was

appropriate since all of the plaintiffs' claims arose "out of the same pattern of conduct, the

same type of insurance, and involv[ed] interpretation of the same master policy." Id.

¶11.     We only decided two cases after American Bankers in which we substantively

addressed the application of Rule 20(a) prior to the amendment to the rule. First, in Prestage

Farms, Inc. v. Norman, 813 So. 2d 732, 734-35 (Miss. 2002), we dealt with a case in which

all of the joined plaintiffs sued a corporation after its contract with local pig farmers allegedly

resulted in a nuisance to those living nearby.     Finding the issues presented in Norman to be

analogous to American Bankers, we held joinder of the plaintiffs to be proper. Id. at 736.



                                                   6
Next, in Illinois Central R.R. v. Travis, 808 So. 2d 928, 935-36 (Miss. 2002), overruled on

other grounds, Capital City Insurance Co. v. G.B. "Boots" Smith Corp., 2004 WL 2403939,

*11 (Miss. 2004), we dealt with a case in which the plaintiffs' claims stemmed from a

company policy of not warning or protecting its workers from the hazards of asbestos

exposure and from the company's alleged breach of its duty to provide a reasonably safe place

to work. Finding that the causes of action arose out of the same transaction or occurrence and

that they also involved common questions of law or fact, we held joinder to be proper. Id. at

935-36.4

¶12.    However, our jurisprudence took on a decidedly more temperate approach to the issue

of joinder when we handed down Janssen Pharmaceutica, Inc. v. Armond, 866 So. 2d 1092

(Miss. 2004), the same month the amendment to Rule 20(a) was announced.5                   Armond dealt

with a case of fifty-six plaintiffs who brought claims against their doctors and the manufacturer

of the drug Propulsid. Id. at 1095. Even under the now-stricken "virtually unlimited" language

of Rule 20(a), we found that joinder was improper in light of the fact that the claimants had

        different medical histories; alleg[ed] different injuries at different times;
        ingested different amounts of Propulsid over different periods of time; received
        different advice from [forty-two] different doctors who, in turn, received
        different information about the risks associated with the medication via six
        different warning labels utilized during the time covered by this lawsuit, and who
        each had his or her own reasons to prescribe Propulsid for the patients.



        4
         We note that Norman and Travis are the only two Mississippi cases other than
American Bankers which have used, among other authority, the now-stricken "virtually
unlimited" language of Rule 20(a) as a justification for allowing joinder.
        5
      Because the amendment to Rule 20(a) went into effect the day after we handed down
Armond, the case was decided under the previous version of the rule.

                                                    7
Id. at 1096. Although the pre-amendment holding appeared to abrogate the American Bankers

decision, we distinguished the facts and holdings of the two cases, rather than altogether

overruling precedent. We stated that the distinguishing factor in the two decisions was that in

American Bankers, "[t]here was no decision to be made on a case-by-case basis, and there was

nothing unique or individual about the defendants' treatment of any of the plaintiffs."   Id. at

1097; see also Bailey, 878 So. 2d at 46-47 (dictum) (discussing lack of uniqueness of

American Bankers plaintiffs in comparison to Propulsid plaintiffs of Armond and Bailey).

        C. Same Transaction or Occurrence Requirement

¶13.    Almost all post-Armond cases discussing Rule 20(a) to any degree have dealt with

analogous fact scenarios to Armond and reaffirmed its holding. See Purdue Pharma, L.P. v.

Estate of Heffner, 2004 WL 2249488 (Miss. 2004); Janssen Pharmaceutica, Inc. v.

Jackson, 883 So. 2d 91 (Miss. 2004); Culbert v. Johnson & Johnson, 883 So. 2d 550 (Miss.

2004); Janssen Pharmaceutica, Inc. v. Keys, 879 So. 2d 446 (Miss. 2004); Janssen

Pharmaceutica, Inc. v. Scott, 876 So. 2d 306 (Miss. 2004); Janssen Pharmaceutica, Inc. v.

Grant, 873 So. 2d 100 (Miss. 2004); Bailey, 878 So. 2d at 46-49. This case presents us with

another post-amendment opportunity to clarify our joinder jurisprudence in a different context

in which claims of mass fraud and misrepresentation arise.

¶14.    In both Armond and Bailey, we discussed the case of Insolia v. Philip Morris, Inc., 186

F.R.D. 547 (W.D. Wis. 1999).6        Insolia dealt with a case of three former smokers and their


        6
        Although the Insolia court stated that "[u]nder Rule 20, joinder of claims, parties and
remedies is strongly encouraged," Insolia, 186 F.R.D. at 548, we note that Insolia is indeed
a federal case, and "the federal rule interpretation must be considered in light of the class

                                                   8
spouses who alleged they were subject to an industry-wide conspiracy to mislead consumers

regarding the negative effects of smoking.         Id. at 548.    In discussing the general consensus

which has emerged from federal courts dealing with Rule 20(a) in the context of securities

fraud lawsuits, the court rightly noted that the rule "demands more than the bare allegation that

all plaintiffs are victims of a fraudulent scheme perpetrated by one or more defendants[.]" Id.

at 549.     The court added that "there must be some indication that each plaintiff has been

induced to act by the same misrepresentation." Id. (citing Nor-Tex Agencies, Inc. v. Jones,

482 F.2d 1093, 1100 (5th Cir. 1973); McLernon v. Source Int'l, Inc., 701 F. Supp. 1422 (E.D.

Wis. 1988); Papagiannis v. Pontikis, 108 F.R.D. 177, 179 (N.D. Ill. 1985)).

¶15.    Jones dealt with a securities fraud claim against a defendant who made a series of false

statements in regard to the viability of oil production on certain pieces of land.        Jones, 482

F.2d at 1095-96. The defendant, Jones, originally made the statements to Riley, an individual

investor; but upon relying on the same statements, Riley opted, as president of Nor-Tex, to

invest corporate funds in the project.       Id.   Nor-Tex sued Jones, alleging securities fraud and

subsequently joined Riley as plaintiff.    Id. at 1099.     The Fifth Circuit found joinder of the two

plaintiffs appropriate since both Nor-Tex’s and Riley’s claims “were based on a series of false

statements made by Jones . . . [and] the facts concerning Nor-Tex were inextricably woven

together with the facts concerning . . . Riley.” Id. at 1100.




action mechanism available though [Federal Rule of Civil Procedure 23], which has no
counterpart in the Mississippi Rules of Civil Procedure." American Bankers, 818 So. 2d at
1088 (Waller, J., dissenting). This is particularly true in light of the recent amendment to Rule
20.

                                                     9
¶16.    The trial court in McLernon dealt with a case similar to the one before us today. In that

case, over three hundred plaintiffs alleged that they had been fraudulently induced into buying

unregistered securities.    McLernon, 701 F. Supp at 1424.              In ruling that the plaintiffs were

improperly joined under Federal Rule of Civil Procedure 20(a), the court observed

        It is vaguely suggested that all plaintiffs relied upon certain misrepresentations
        and omissions in newspaper advertisements, brochures, television appearances
        and personal correspondence. But it is not clear that these misrepresentations
        are part of all plaintiffs' claims.       Indeed, other portions of the amended
        complaint indicate that some plaintiffs' claims arise out of oral
        misrepresentations not made to other plaintiffs.

Id.    In spite of the plaintiffs' initial failure to properly join, the district court allowed the

plaintiffs to amend their complaint in the interest of judicial economy. Id. at 1426.

¶17.    Both Jones and McLernon provide valuable sources of persuasive authority in the case

at hand.    Though the forty-five plaintiffs in this case have lodged multifarious complaints of

deception by Mississippi Life in their pleadings, motions, and briefs, they have failed to

present any evidence which specifically identifies any common misrepresentation to all

plaintiffs by Mississippi Life, either written or oral.      At best, four of the plaintiffs consistently

testify, without identifying any deception on the part of Mississippi Life, that Mississippi Life

explained nothing to them when it convinced them to purchase the insurance policies. Beyond

that, the record reveals nothing more than bare allegations devoid of any evidence that each

plaintiff has been induced to act by a common misrepresentation.

¶18.    Unlike Jones, no plaintiff has alleged fraudulent statements which are “inextricably

woven together with the facts concerning” a statement made to any other plaintiff.               Instead,




                                                    10
more like the plaintiffs in McLernon, these plaintiffs have “vaguely suggested that all plaintiffs

relied upon certain misrepresentations and omissions” on the part of Mississippi Life.

¶19.    We quote the language of McLernon to provide future courts and plaintiffs with

specific guidance as to the evidentiary burden of proof borne by joined plaintiffs who wish to

meet the demands of Rule 20(a) in regard to their allegations of fraud or misrepresentation:

        In order to satisfy Rule 20(a), [plaintiffs] must allege that their claims arise
        from one or more uniform misrepresentations. To do so, they must specifically
        identify which representations and/or omissions, if any, were made to all
        plaintiffs. If the representation was written, the writing in which the
        representation appeared and the date of publication must be set forth. That
        plaintiffs' claims may be premised on oral misrepresentations does not preclude
        joinder, provided plaintiffs allege that the substance of the oral representations
        was standardized . . . Those plaintiffs whose claims arise out of representations
        not made to other plaintiffs must be specifically identified and will be subject
        to severance.

Id. at 1425-26 (emphasis in original).

¶20.    Because the plaintiffs in the case at hand have exclusively relied upon general

allegations as the basis for their claim of joinder under Rule 20(a), rather than supplementing

their allegations with substantive evidence, they consequently do not meet the prerequisite that

the claims be based upon the "same transaction or occurrence."7 Neither has Mississippi Life

presented sufficient evidence to show that the plaintiffs have not met the “same transaction and

occurrence” requirement of Rule 20.              Instead, Mississippi Life merely relies on the




        7
         This holding also applies to the couple-plaintiffs in this action. Nowhere in the record
does any one couple allege an action arising out of the same misrepresentation, and we will not
imply one absent evidence on the record that such a misrepresentation was made to one or
more plaintiffs. We also note that since plaintiffs’ claims must meet both prongs of the test
in order to establish a joinable claim under Rule 20(a), their failure to satisfy the first prong
is dispositive of the case.

                                                   11
multiplicity of loan transactions, the time span during which the loans were made, and the

different employees with whom each plaintiff dealt as a basis for arguing that the causes of

action do not arise from the same transaction or occurrence.8

¶21.    Since the plaintiffs did not satisfy the first prong of Rule 20(a), they consequently did

not present a joinable claim under the rule. See Miss. R. Civ. P. 20(a) cmt. (2004) (“Both of

these requirements must be satisfied in order to sustain party joinder under Rule 20(a)”). We

reverse the trial court’s decision denying Mississippi Life’s Motion to Sever and remand to

the trial court for the purpose of requiring that both the plaintiffs and Mississippi Life present

substantive evidence demonstrating the propriety or impropriety of joinder.      We further add

that trial courts, in deciding whether to grant a motion to sever, must specifically state on the

record the reasons for granting or denying the motion under Rule 20(a).

                                            CONCLUSION

¶22.    We find that the trial court abused its discretion in ruling on Mississippi Life's Motion

to Sever with such scant proof offered for, or in opposition to, joinder.   We reverse the trial

court’s decision denying Mississippi Life’s Motion to Sever and remand to the trial court to

require both the plaintiffs and Mississippi Life to present substantive evidence demonstrating

that propriety or impropriety of joinder, and then to rule on the motion.

¶23.    REVERSED AND REMANDED.


        8
         Though Mississippi Life may argue that the plaintiffs’ dealings with separate loan
officers serves as sufficient evidence for severance, analogous to the doctors in Armond,
nothing in the record supports this contention. The only evidence even hinting that different
employees handled the various loans are the loan documents which contain the signatures of
different employees. We will not take this sparse evidence and automatically presume this
means the facts of the transactions or occurrences on which each plaintiff’s claim are based
are so distinctive as to warrant severance.

                                                   12
      SMITH, C.J., COBB, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH,
JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ, J., NOT
PARTICIPATING.




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