                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2005-CA-00481-SCT


DARRELL ALLEY

v.

NORTHERN INSURANCE COMPANY


DATE OF JUDGMENT:                           01/31/2005
TRIAL JUDGE:                                HON. STEPHEN B. SIMPSON
ATTORNEYS FOR APPELLANT:                    JOHN R. SANTA CRUZ
                                            PRESTON J. MAUFFRAY
ATTORNEY FOR APPELLEE:                      TRACE D. McRANEY
NATURE OF THE CASE:                         CIVIL - INSURANCE
DISPOSITION:                                AFFIRMED - 04/20/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    This appeal involves issues pertaining to stacking of uninsured/underinsured insurance

benefits. Finding that our precedent has resolved the first two issues raised on appeal

(whether an insurance agent has a duty to explain the legal implications of

uninsured/underinsured benefits and whether an injured employee may stack when the

tortfeasor is not underinsured) and that the third issue (whether the type of insurance policy

is relevant to the question of stacking) is procedurally barred and/or frivolous, we affirm the

circuit court’s grant of summary judgment to the employer’s uninsured benefits carrier.
                                          FACTS

¶2.    After having an automobile accident with Betty H. Meyer, Darrell Alley filed suit

against Meyer and Northern Insurance Company of New York, which had issued an

insurance policy to Hancock County providing uninsured/underinsured motorist coverage.1

Alley was acting in the course and scope of his employment with Hancock County at the time

of the accident and was driving an automobile owned by Hancock County. Meyer had in

effect a $100,000 automobile liability insurance policy.          Alley had no personal

uninsured/underinsured coverage. The Hancock County policy provided $25,000 per vehicle

uninsured/underinsured coverage for each of Hancock County’s 109 covered vehicles. Alley

alleges Meyer’s liability coverage is not sufficient to cover his injuries and damages.

¶3.    Northern Insurance filed a motion for summary judgment, contending that Meyer was

not underinsured because her $100,000 liability coverage exceeded the Hancock County

$25,000 uninsured/underinsured coverage, arguing that, under Mascarella v. U. S. Fidelity &

Guar. Co., 833 So. 2d 575 (Miss. 2002), Meyer could not be considered an underinsured

driver unless her liability coverage was less than Hancock County’s uninsured/underinsured

coverage. Mascarella involved an issue certified to this Court by the United States Court of

Appeals for the Fifth Circuit: “[w]hether an injured insured is entitled to stack the

underinsured motorist coverage of other vehicles covered under his fleet policy thereby




       1
       Alley originally named Zurich North America as a defendant, but later amended the
complaint to name Northern Insurance Company of New York as the proper defendant.

                                             2
making the third-party tortfeasor’s vehicle an underinsured motor vehicle.” Id. at 576. The

circuit court granted Northern Insurance’s motion for summary judgment, finding as follows:

       (1)    To determine whether an insured vehicle is underinsured, a court must
              compare the limits of liability coverage on that vehicle to the uninsured
              limits provided through the injured party’s own coverage.

       (2)    Marscarella controls. Marscarella, just like Alley, was injured while
              driving a vehicle which was part of his employer’s fleet. Also, just like
              Alley, Marscarella did not own or insure the fleet and was “not
              otherwise insured.” Marscarella was not allowed to stack his
              employer’s uninsured/underinsured insurance limits. Therefore, Alley
              is not allowed to do so.

       (3)    Meyers’ liability limits of $100,000 are more than the sum of (1) the
              limit of liability for uninsured/underinsured motorist coverage
              ($25,000) applicable to the vehicle Alley was driving plus any other
              uninsured/underinsured motorist coverage applicable to Alley ($0).
              Therefore Meyers was not an underinsured motorist.

       (4)    The fact that Hancock County had a policy covering 109 vehicles did
              not take the case outside of the Marscarella holding or increase the
              uninsured/underinsured motorist limits available to Alley.

¶4.    From this ruling, Alley appeals.

                                      DISCUSSION

              I.     WHETHER MATERIAL QUESTIONS OF FACT
                     W HICH W OULD PRECLUDE SUM M ARY
                     JUDGMENT EXISTED.

¶5.    Alley contends the circuit court erred by failing to consider an affidavit submitted by

the Hancock County Chancery Clerk and that Northern Insurance never disclosed the limited

availability of uninsured/underinsured motorist coverage to county employees. The Chancery

Clerk averred as follows: (1) he purchased the Northern Insurance policy on behalf of

                                              3
Hancock County; (2) uninsured/underinsured motorist coverage was purchased to provide

equal uninsured/underinsured motorist coverage to the drivers regularly assigned to the

covered vehicles; (3) Northern Insurance never explained: (a) the definition of, or the

limitations implied by, the term “named insured,” as it related to the policy; (b) the

circumstances under which an employee would be entitled to stack uninsured/underinsured

motorist coverage; or (c) the availability of the stacked coverage was dependent upon the

amount of the insurance coverage available on vehicles involved in accidents with county

vehicles. Alley, citing Aetna Cas. & Sur. Co. v. Berry, 669 So. 2d 56, 76 (Miss. 1996),

contends that an insurer has a duty to explain uninsured/underinsured motorist coverage to

an insured so the insured knows he has an option to increase the coverage limits.

¶6.    We have recently partially overruled Berry, holding that an insurance agent has no

absolute, court-created duty to explain an insured’s right to purchase additional uninsured

motorist coverage over and above the amount of coverage required by statute. Owens v.

Miss. Farm Bureau Cas. Ins. Co., 910 So. 2d 1065, 1074 (Miss. 2005). Optional coverage

which exceeds the statutory limit is not required by statute, id. at 1075, and therefore

insurance agents should not be required to inform insureds of optional coverage. Also, as

Northern Insurance suggests, we question an insurance agent’s competence to explain such

esoteric legal issues as stacking when seasoned attorneys find it difficult to do so.

¶7.    Northern Insurance also argues that Alley does not have standing to complain of an

alleged breach of duty owed by Northern Insurance to Hancock County. Because we have



                                              4
held that insurance agents do not have the duty to inform Hancock County of the option of

additional coverage, this issue is moot.

              II.    WHETHER THE CIRCUIT COURT ERRED IN
                     NOT ALLOWING STACKING OF HANCOCK
                     C O U N T Y ’S U N IN SU R E D /U N D E R IN S U R E D
                     COVERAGE.

¶8.    Class II insureds are not entitled to uninsured motorist benefits beyond those for

which the named insured contracted regarding that covered vehicle. Meyers v. American

States Ins. Co., 914 So. 2d 669, 675 (Miss. 2005). Persons included in Class I consist of the

“named insured, and residents of the same household, his spouse and relatives of either,

while in a motor vehicle or otherwise.”    Glennon v. State Farm Mut. Auto. Ins. Co., 812

So. 2d 927, 931 (Miss. 2002) (quoting Miss. Code Ann. § 83-11-103(b) (1999)). A Class II

insured is “any person who uses, with the consent, expressed or implied, of the named

insured, the motor vehicle to which the policy applies. Id. An employee who drives a

vehicle covered under his employer’s business automobile policy is not a Class I insured

because the employee is not a named insured. Harris v. Magee, 573 So. 2d 646, 656 (Miss.

1990). Therefore, Alley was a Class II insured under the Hancock County policy.

¶9.    Under Mascarella, a Class II insured may stack his own uninsured motorist coverage

with that of the vehicle in which he was riding, but a Class II insured does not have the right

to stack an employer’s uninsured motorist coverage. Mascarella, 833 So. 2d at 580. Under

this ruling, Alley may not stack Hancock County’s uninsured motorist coverage.




                                              5
               III.   WHETHER THE TYPE OF POLICY HAS
                      R ELEVANC E TO TH E Q UESTIO N O F
                      STACKING.

¶10.   Alley argues that Mascarella should not be applied to the instant case because

Mascarella involved a commercial fleet policy for a closely-held corporation which covered

only 8 vehicles and the instant case involves a municipal policy covering 109 vehicles. The

relevant cases, Mascarella, Meyers, Harris, and Glennon, only consider whether the injured

party is an employee of the named insured or is the named insured. We find the type of entity

of the named insured – i.e., a corporation or a municipality – is irrelevant. Also, Alley failed

to raise this issue before the circuit court, and it is therefore procedurally barred from review

by this Court. Finally, Alley cites absolutely no case law or statute in support of his

proposition.

                                       CONCLUSION

¶11.   We find the first two issues raised by Alley have been disposed of by previous

precedent, and the third issue is procedurally barred and/or frivolous. We affirm the

judgment of the circuit court.


¶12.   AFFIRMED.

     SMITH, C.J., COBB, P.J., CARLSON AND DICKINSON, JJ., CONCUR.
EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN
OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.




                                               6
