             IN THE SUPREME COURT OF MISSISSIPPI

                      NO. 2015-CA-01572-SCT

RICHARD RYLEE AND BETH RYLEE

v.

PROGRESSIVE GULF INSURANCE COMPANY
AND USAA CASUALTY INSURANCE COMPANY


DATE OF JUDGMENT:             09/22/2015
TRIAL JUDGE:                  HON. RICHARD W. McKENZIE
TRIAL COURT ATTORNEYS:        EDWARD C. TAYLOR
                              KRISTI ROGERS BROWN
                              CECIL MAISON HEIDELBERG
                              CHUCK McRAE
                              SETH CLAYTON LITTLE
                              DAWN DAVIS CARSON
                              GRETA LYNETTE KEMP
                              RUSSELL BARTON JORDAN
                              HAL SCOT SPRAGINS, JR.
                              JAMES NELSON SCARFF, II
                              GINNY Y. KENNEDY
COURT FROM WHICH APPEALED:    JONES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:     CHUCK McRAE
                              SETH CLAYTON LITTLE
                              CHRISTOPHER ANTHONY BAMBACH
ATTORNEYS FOR APPELLEES:      CECIL MAISON HEIDELBERG
                              EDWARD C. TAYLOR
                              KRISTI ROGERS BROWN
NATURE OF THE CASE:           CIVIL - INSURANCE
DISPOSITION:                  AFFIRMED- 03/09/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



     BEFORE WALLER, C.J., KITCHENS AND MAXWELL, JJ.

     MAXWELL, JUSTICE, FOR THE COURT:
¶1.    Beth Rylee’s husband, Richard Rylee, was injured in a motorcycle accident. After the

Rylees received the full “each person” policy limit for damages resulting from Richard’s

bodily injury, the Rylees sued their two insurers. They claimed Beth was entitled to her own

each-person policy limit for her “separate and distinct” loss-of-consortium claim. But both

the language of the relevant policies and this Court’s precedent are clear. If there is only one

person who suffers bodily injury in an accident, then all claims based on that person’s bodily

injury are included in the each-person policy limit.

¶2.    Only Richard was injured in the accident—Beth was not even there. So her loss-of-

consortium claim fell under the each-person policy limit for damages arising from Richard’s

bodily injury, which the two defendant insurance companies have already satisfied.

¶3.    We affirm the circuit court’s grant of summary judgment to the two insurers.

                       Background Facts and Procedural History

¶4.    The facts are not disputed. On January 19, 2011, Richard’s motorcycle and Jessica

Brashier’s vehicle crashed in Laurel, Mississippi. Richard was injured. His wife Beth was

not with him during the accident.

       I.     Auto Insurance Policies

¶5.    The collision triggered three insurance policies:

       (1)    Brashier’s policy with State Farm, which provided a liability limit of
              $25,000 per person;

       (2)    Richard’s policy with Progressive Gulf Insurance Company, which
              covered his motorcycle and provided uninsured-motorist coverage with
              a $25,000 per-person and $50,000 per-accident limit; and



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       (3) Richard’s policy with United Services Automobile Association (USAA),
       which covered two other vehicles and provided uninsured-motorist coverage
       for each vehicle with a $25,000 per-person and $50,000 per-accident limit.

¶6.    State Farm tendered Richard the $25,000 per-person policy limit. It was not a party

in the underlying lawsuit and, thus, is not a part of this appeal. USAA also tendered Richard

$50,000 in uninsured-motorist coverage—$25,000 per person for each of the two vehicles

covered. But Progressive, as the primary insurer, tendered no uninsured-motorist coverage.

Instead, because Brashier’s insurer had paid $25,000 in liability coverage, Progressive

claimed the right to offset completely its policy’s $25,000 per-person uninsured-motorist

coverage. See U.S. Fid. & Guar. Co. v. Ferguson, 698 So. 2d 77, 81 (Miss. 1997) (citing

State Farm Mut. Auto. Ins. v. Kuehling, 475 So. 2d 1159 (Miss. 1985)) (recognizing the

insurer’s right to offset uninsured-motorist benefits by the amount paid by the tortfeasor’s

carrier).

       II.    Lawsuits

¶7.    On May 22, 2013, Beth filed a loss-of-consortium action against Brashier,

Progressive, and USAA. Both Progressive and USAA filed for summary judgment. They

argued Beth’s derivative loss-of-consortium claim fell under the $25,000 policy limit for

“each person,” which had been offset by the State Farm payment in Progressive’s case and

already tendered in USAA’s case.

¶8.    A year after his wife, Richard also filed suit against Brashier, Progressive, and USAA.

Progressive and USAA filed motions for summary judgment in that action as well.




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¶9.    After consolidating the two suits, the circuit court granted summary judgment to both

Progressive and USAA. The circuit court certified its judgment in favor of the two insurers

as final and appealable. See M.R.C.P. 54(b) (providing that a decision disposing of less than

all defendants is not final, unless certified as final).

¶10.   The Rylees timely appealed, prompting this Court’s de novo review. See Robichaux

v. Nationwide Mut. Fire Ins., 81 So. 3d 1030, 1035 (Miss. 2011) (applying a de novo

standard of review to the decision to grant summary judgment); Corban v. United Servs.

Auto. Ass’n, 20 So. 3d 601, 609 (Miss. 2009) (holding the interpretation of an insurance

policy is a question of law, which is reviewed de novo).

                                           Discussion

¶11.   On appeal, the Rylees do not challenge the circuit court’s finding that Richard has

received full policy limits from Progressive (through setoff) and USAA (through the tender

of the stacked policy limits). Rather, they contest the circuit court’s ruling that Beth is not

entitled to any additional payments from either insurer, because her loss-of-consortium claim

was included in the “each person” policy limit already received. We find this argument cuts

against precedent and lacks merit. Under the policy’s clear language and this Court’s

precedent, Beth simply cannot receive beyond the “each person” limit.

       I.      Clear Policy Language

¶12.   “When the words of an insurance policy are plain and unambiguous, the Court will

afford them their plain, ordinary meaning and will apply them as written.” Robichaux, 81

So. 3d at 1036. Both policies specify that policy limit for “each person” includes any



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person’s claim based on one person’s bodily injury. In fact, the Progressive policy lists “loss

of consortium” as a derivative claim that falls under the each-person policy limit for the

person who was bodily injured.1 And the USAA policy makes clear the maximum limit for

any one person’s bodily injury includes all “derivative or consequential damages recoverable

by any person.”2 In other words, the each-person policy limit is based on the number of

persons who suffer bodily injury in the accident, not the number of insureds making claims.

¶13.   Twice when interpreting similar policy language, this Court has reached the exact

same conclusion—that to recover more than the “each person” limit for one person, there

must be more than one person who sustained bodily injury during the accident. State Farm



       1
           The Progressive policy provided:

       The “each person” limit of liability includes the total of all claims made for
       bodily injury to an insured person and all claims of others derived from such
       bodily injury, including, but not limited to, emotional injury or mental anguish
       resulting from the bodily injury of another or from witnessing the bodily injury
       to another, loss of society, loss of companionship, loss of service, loss of
       consortium, and wrongful death.

(Emphasis added.)
       2
           Similarly, the USAA policy stated:

       A.       If the uninsured motor vehicle is not your covered auto:

       1.       For BI [(i.e., “bodily injury”)] sustained by any one person in any one
                accident, our maximum limit of liability for all resulting damages,
                including but not limited to, all direct, derivative or consequential
                damages recoverable by any persons, is the limit shown in the
                Declarations page under any one vehicle for UMBI Coverage for “each
                person” multiplied by the number of premiums . . . .

(Emphasis added.)

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Mut. Auto. Ins. Co. v. Acosta, 479 So. 2d 1089, 1090-91 (1985); Old Sec. Cas. Ins. v.

Clemmer, 455 So. 2d 781, 782 (Miss. 1984). Beth was not with Richard during the crash.

Richard was the only person who sustained bodily injury in the accident with Brashier. So

Beth’s loss-of-consortium claim falls under the each-person policy limit for Richard’s bodily

injury.

          II.    Inapposite Versus Dispositive Cases

¶14.      Still, the Rylees insist they are entitled to more than one each-person policy limit. To

support their theory, they rely on two cases, Coho Resources v. McCarthy, 829 So. 2d 1

(Miss. 2002), and Pearthree v. Hartford Accident & Indemnity Co., 373 So. 2d 267 (Miss.

1979). But neither of these cases considered the “each person” policy limit.

¶15.      McCarthy dealt with the burden of proof for a loss-of-consortium claim. McCarthy,

829 So. 2d at 20-23. There, the wife presented no evidence about how her husband’s injuries

affected her relationship with him. Instead, she merely relied on evidence of her husband’s

pain and suffering to make her loss-of-consortium claim. We held such evidence was

insufficient because “[a] cause of action accruing to a party for loss of consortium is separate

and distinct from that party’s spouse suffering personal injury.” Id. at 22.

¶16.      The Rylees latch onto the phrase “separate and distinct.” They argue a loss-of-

consortium claim cannot be both “separate and distinct” and “derivative.” As they see it,

McCarthy is inconsistent with Acosta. But a quick review shows these two cases are not

inconsistent. In McCarthy, we held that, to prove his or her “separate and distinct” cause of

action, “[t]he spouse seeking compensation for loss of consortium must show that he or she



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suffered damages arising out of the other’s injuries.” McCarthy, 829 So. 2d at 22 (emphasis

added). So according to McCarthy, a loss-of-consortium claim is both “separate and

distinct” and derivative. It requires the claimant prove separate and distinct damages that

derive from, or arise out of, the nonclaimant’s bodily injuries.

¶17.   Put another way, McCarthy actually confirms—rather than rejects—that Beth has no

loss-of-consortium claim without her husband Richard’s bodily injury. Thus, her claim is

derivative. So it fell under the each-person policy limit for Richard’s bodily injury.

¶18.   The other case the Rylees cite, Pearthree, dealt with who is an “insured.” Pearthree,

373 So. 2d at 271. There, the policy in question defined an “insured” to include “[a]ny

person with respect to damages he is entitled to recover because of bodily injury . . .

sustained by an insured.” Id. Based on this broad language, we held that the daughter of

the deceased insured was an “insured” because she was entitled by statute to maintain a

wrongful-death action. Id.

¶19.   Relying on Pearthree, the Rylees argue, because Beth was an “insured” on the USAA

policy, she is entitled to her own separate each-person policy limit for her loss-of-consortium

claim. But in Acosta, the wife of the man injured in the wreck was also a named insured.

Still, we found it was error to give the wife her own each-person limit “because she sustained

no bodily injury.” Acosta, 479 So. 2d at 1090 (emphasis added). Again, the controlling

question is not the number of insureds making claims but rather the number of persons on

whose bodily injury the claims are based. And we have held that if that number is one, then

recovery is limited to one “each person” policy limit. Id.



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¶20.   The Fifth Circuit relied on Acosta’s holding to reject an argument just like the

Rylees’. Reid v. State Farm Mut. Ins., 784 F.2d 577 (5th Cir. 1986). There, a husband

argued, because under Pearthree he was an “insured,” he was entitled to his own separate

policy limit for his loss-of-consortium claim. Reid, 784 F.2d at 578-79. But the Fifth Circuit

found Pearthree did not control—Acosta and Clemmer did. Applying Acosta and Clemmer,

the court held the husband’s loss-of-consortium claim was included in the policy limit for

damages resulting from the wife’s bodily injury. Reid, 784 F.2d at 579-80. Thus, the Fifth

Circuit affirmed the dismissal of the husband’s claim he was entitled to a separate “each

person” policy limit. Id. at 580.

¶21.   The same is true here. Acosta and Clemmer—not Pearthree or McCarthy—control.

And just like the policies in those cases, the policies in this case clearly state that Beth’s loss-

of-consortium claim fell under the policy limit for damages resulting from Richard’s bodily

injury. Because the Rylees have already received full policy limits for damages resulting

from Richard’s bodily injury, the circuit court properly dismissed both insurers on summary

judgment.

¶22.   AFFIRMED.

     WALLER, C.J., RANDOLPH, P.J., KITCHENS, KING, COLEMAN, BEAM
AND CHAMBERLIN, JJ., CONCUR. DICKINSON, P.J., NOT PARTICIPATING.




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