                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2012-IA-00019-SCT


PAM WOOD, DAVID WOOD, JUSTIN WOOD,
JOSH WOOD AND JACOB WOOD

v.

SAFEWAY INSURANCE COMPANY


DATE OF JUDGMENT:                          12/15/2011
TRIAL JUDGE:                               HON. WILLIAM E. CHAPMAN, III
COURT FROM WHICH APPEALED:                 RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                  MARK K. TULLOS
                                           CRAIG N. ORR
ATTORNEYS FOR APPELLEE:                    CHRISTOPHER DAVID MORRIS
                                           PHILIP W. GAINES
NATURE OF THE CASE:                        CIVIL - INSURANCE
DISPOSITION:                               REVERSED AND REMANDED - 06/06/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    In this interlocutory appeal, we are asked to determine whether the Circuit Court of

Rankin County abused its discretion by denying the defendants’ motion to transfer venue to

the Circuit Court of Smith County. We find that Plaintiff Safeway Insurance Company

(“Safeway”) failed to demonstrate sufficient facts to support a finding that venue is proper

in Rankin County. Therefore, we reverse the order of the circuit court and remand this action

with instruction to transfer the case to a permissible venue.
                                            FACTS

¶2.    Defendant Pam Wood (“Pam”) applied for automobile insurance provided by Safeway

at the office of an independent insurance agent in Covington County, Mississippi. The

application was for a policy to cover two vehicles owned by Pam and her husband, David.

The insurance agent faxed the application from Covington County to Safeway’s Rankin

County office, where Safeway approved the application. Safeway alleges that subsequent

renewal activities also took place at its Rankin County office.

¶3.    During the effective dates of the policy, Pam’s and David’s fourteen-year-old

daughter was killed in an automobile accident while she was a passenger in one of the

covered vehicles. The car was being driven by Pam and David’s sixteen-year-old son, Jacob,

who Safeway alleges did not have a valid driver’s license.

¶4.    Shortly thereafter, Safeway filed suit against Pam, David, Jacob, and their two adult

sons, Josh and Justin, in the Circuit Court of Rankin County. Safeway’s complaint seeks: (1)

declaratory judgment that the insurance contract is void ab initio due to misrepresentations

that were made at the time the contract was entered into,1 or (2) in the alternative, declaratory


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        Safeway alleges that it approved the Woods’ insurance policy “in reliance upon
certain material misrepresentations and warranties made by . . . Pam Wood.” Safeway further
alleges that it has been advised of “factual discrepancies, material misrepresentation(s),
and/or failure to comply with policy conditions with regard to Pam Wood . . .” including the
following:

       a) Residence and/or domicile of the applicant and/or, members of her
       household with substantial variance and/or lack of acceptability and/or
       increase in the risk(s) purportedly affected or insured under the policy;


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judgment that Safeway is not liable under the contract, because the car accident at issue falls

under a contractual exception to coverage for uninsured drivers driving the car with the

owner’s permission. Safeway’s complaint stated that the Rankin County Circuit Court had

jurisdiction over its claims:

       due to the fact that the communication in question was delivered and made to
       Safeway within this judicial district and Application processing for the
       insurance policy contract that is the subject matter of this action was submitted
       by Defendant(s) to and accepted and processed by Safeway’s office in this
       judicial district.

(Emphasis added.)

¶5.    The Woods, all residents of Smith County, filed a motion to transfer venue from

Rankin County to Smith County. The Woods argued that venue was not proper in Rankin

County, because no defendant resided in Rankin County and the allegations contained in

Safeway’s complaint did not establish that a “significant act or omission” or “substantial

event causing injury” occurred in Rankin County, as contemplated by Mississippi’s venue

statute. The circuit court denied the Woods’ motion, and the Woods petitioned this Court for

permission to file an interlocutory appeal, which we granted.




       b) Compliance with specified obligations and/or conditions relevant to and/or
       necessary for valid issuance of the Safeway policy in question and/or potential
       payment obligations under said policy;

       c) Cooperation and provision of necessary relevant information pertaining to
       the vehicle(s) listed on the policy, the driver(s) and/or custodian(s) and/or all
       persons with any type of ownership of use rights(s) to said vehicle.

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                                      DISCUSSION

I. Standard of review

¶6.    We review “a trial court’s grant or denial of a motion for change of venue for an abuse

of discretion, but questions of law, such as interpretation of the general venue statute, are

reviewed de novo.” Laurel Ford Lincoln-Mercury, Inc. v. Blakeney, 81 So. 3d 1123, 1125

(Miss. 2012) (citations omitted).

II. Venue does not lie in Rankin County, because a substantial act or omission did not
occur there.

¶7.    Mississippi’s general venue statute, Mississippi Code Section 11-11-3, reads in

pertinent part as follows:

       Civil actions of which the circuit court has original jurisdiction shall be
       commenced [1] in the county where the defendant resides, . . . or [2] in the
       county where a substantial alleged act or omission occurred or [3] where a
       substantial event that caused the injury occurred.

Miss. Code Ann. § 11-11-3(1)(a)(i) (Rev. 2004). All agree that the defendants reside in Smith

County. Thus, under [1], Smith County is a permissible venue. The county where a

substantial event (car accident) that caused injury occurred also is Smith. Thus, under [3],

Smith County is a permissible venue. Since all defendants reside in Smith County, and the

accident occurred in Smith County, venue would be proper in Rankin County only if that

county is “where a substantial alleged act or omission occurred[,]” under [2].

¶8.    In its “Complaint for Declaratory Relief and Determination of Insurance Policy as

Void,” Safeway requested judicial determination of the invalidity of an insurance contract



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or, in the alternative, construction of its terms (specifically, its exception to coverage for

uninsured drivers driving the car with the owner’s permission).2

¶9.    Safeway’s complaint fails to allege sufficient facts that a substantial act or omission

by any of the defendants occurred in Rankin County. In its complaint, Safeway, a non-

resident corporation,3 averred that the Rankin County Circuit Court had jurisdiction, because:

“the communication in question was delivered and made to Safeway within [Rankin County]

and Application processing for the insurance policy contract . . . was submitted by

Defendant(s) to and accepted and processed by Safeway’s office in [Rankin County].”

Safeway’s attempt to establish venue by stating that Pam’s communications were delivered

and submitted and accepted and processed in Rankin County is unavailing, for “[t]he venue

statute does not allow the ‘piling’ of acts or events to establish venue. It specifically requires

a substantial alleged act, omission, or injury-causing event to have happened in a particular




       2
       Rule 57 specifically provides for declaratory judgment to determine questions of
contractual validity and interpretation, as follows:

       Any person interested under a deed, will, written contract, or other writings
       constituting a contract, or whose rights, status, or other legal relations are
       affected by a statute, municipal ordinance, contract or franchise, may have
       determined any question of construction or validity arising under the
       instrument, statute, ordinance, contract, or franchise, and obtain a declaration
       of rights, status or other legal relations thereunder.

Miss. R. Civ. P. 57(b)(1).
       3
     The insurance policy reveals that Safeway’s principal place of business is in
Westmont, Illinois.

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jurisdiction in order for venue to be proper there.” Medical Assurance Co. of Miss. v. Myers,

956 So. 2d 213, 219 (Miss. 2007).

¶10.   Moreover, no support can be found in the record that Pam delivered, submitted,

communicated, or made alleged misrepresentations in Rankin County, and no similar claim

is made against any other defendant. The record reveals that Pam submitted an application

for insurance to an agent in Covington County and conducted her business at the agent’s

office in Covington County. It was the agent who faxed documents to Safeway’s office. The

complaint does not allege that Pam conducted any business at Safeway’s Rankin County

office or sought to avail herself of the jurisdiction of Rankin County in any other way. We

conclude that Safeway has failed to establish that its receipt of the application was a

substantial act to establish venue in Rankin County.

¶11.   While it is true that, “[o]f right, the plaintiff selects among the permissible venues, and

his choice must be sustained unless in the end there is no credible evidence supporting the

factual basis for the claim of venue[,]” Rankin County is not among the permissible venues

that Safeway could select for this action. Hedgepeth v. Johnson, 975 So. 2d 235, 238 (Miss.

2008) (emphasis added) (citation omitted).

¶12.   In Hedgepeth, we declared that the “two venue options [of where a substantial alleged

act or omission occurred and where a substantial event causing the injury occurred] focus on

the alleged acts or omissions of the defendants.” Id. (emphasis added). We specifically have

provided that “where the . . . basis of the suit is an act or omission by a party, venue may lie

in the county in which that party’s act or omission took place, not the county in which the

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plaintiff acted.” Holmes v. McMillan, 21 So. 3d 614, 619 n.5 (Miss. 2009) (emphasis added)

(citation omitted). “[S]imply experiencing the effects of an act or omission in a county is

insufficient to establish venue.” AFLAC v. Ellison, 4 So. 3d 1049, 1051 (Miss. 2009)

(citation omitted).

¶13.   In Holmes, we found that, in determining venue for a claim that an insurer breached

a contract by denying coverage, “the relevant acts . . . are those associated with the denial of

the claim. The record clearly establishes that the decision to reject the plaintiff’s settlement

demand was made in Alabama, and . . . [n]othing in the record . . . suggests that the rejection

of the settlement demand was connected to [the plaintiff’s home county].” Id. at 619. The

relevant acts for purposes of Safeway’s lawsuit are those associated with Pam Wood’s

alleged misrepresentations in an insurance application, which occurred in Covington County,

and her allegedly allowing an unlicensed driver to drive the insured vehicle in Smith County.

¶14.   Similarly, in Myers, the relevant actions for venue purposes were the defendant-

insurer’s actions related to its decision not to renew an insurance policy, and actions by the

plaintiff, including receipt of mail, were an “insufficient basis for establishing venue.”

Myers, 956 So. 2d at 218-19. The Myers Court found that the plaintiff’s receipt of

communications in its home county was “a passive function of [its] presence there” and that

the plaintiff was “suing [the defendant] based on [the defendant’s] own acts or omissions, all

of which occurred in Madison County.” Id. at 219. The Myers Court further discussed

whether subsequent acts or effects of a defendant’s alleged wrong were “substantial” so as

to establish venue, as follows:

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       The venue statute . . . specifically requires a substantial alleged act, omission,
       or injury-causing event to have happened in a particular jurisdiction in order
       for venue to be proper there. In American Home Products Corp. v. Sumlin,
       942 So. 2d 766 (Miss. 2006), the plaintiff filed suit against a pharmaceutical
       company for injuries sustained from taking Redux. The plaintiff obtained the
       prescription, filled it, and ingested the pills in Wayne County. Id. at 771.
       However, she filed suit in Smith County because the echocardiogram revealing
       her injuries was performed there. Id. Whether the test was properly performed
       was a major point of contention between the parties. Id. at 769. Nevertheless,
       this Court held that venue was only proper in Wayne County, saying “the
       performance and interpretation of an echocardiogram, alone, is not sufficient
       so as to constitute a ‘substantial component’ of this claim. Likewise, any
       emotional distress or psychological pain resulting from the findings of an
       echocardiogram does not constitute a substantial component of the claim.” Id.
       at 771 (internal citations omitted). Thus, the performance of an
       echocardiogram or the place where the plaintiff experienced her injuries was
       not “substantial” enough to establish venue in a particular county. The same
       is true of the receipt of correspondence, the location of a single clinic in a
       multi-clinic operation, or the place where Dr. Myers “experienced” being
       uninsured.

Id. at 219-20 (emphasis added). As in Myers, Safeway’s receipt and reliance of

communications in Rankin County was a passive function of its presence there, for Safeway

is suing the defendants based on the acts or omissions of Pam and/or David Wood, all of

which occurred either in Covington County or Smith County. Safeway’s receipt of and

claimed reliance in Rankin County – i.e., where the plaintiff “experienced” the

misrepresentations – is not a substantial alleged act to establish venue.

¶15.   In Hedgepeth, the plaintiff’s county of residence was a permissible venue, but only

because the plaintiff’s claim was based in part on actions by the defendants at the plaintiff’s

residence (i.e., not because the plaintiff resided or had received mail there). Hedgepeth, 975

So. 2d at 240. Safeway has not demonstrated that Pam or David Wood substantially acted


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or failed to act in Rankin County. Rather, Safeway’s complaint seeks a declaration that the

contract is void ab initio for wrongful acts originally committed in Covington County or that

it is not liable for wrongful acts occurring in Smith County.

                                     CONCLUSION

¶16.   Safeway did not establish sufficient facts to support its claim of venue in Rankin

County. Accordingly, we reverse the Rankin County Circuit Court’s order denying the

defendants’ motion to transfer venue, and remand this action with instruction to transfer the

case to a permissible venue, consistent with this opinion.

¶17.   REVERSED AND REMANDED.

     WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER,
PIERCE AND KING, JJ., CONCUR. COLEMAN, J., NOT PARTICIPATING.




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