                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2006-IA-00005-SCT

EDDIE OAKS, BRENDA OAKS, OAKS
INSURANCE AGENCY, INC. AND DESOTO
INSURANCE, INC.

v.

DONALD E. SELLERS


DATE OF JUDGMENT:                        12/12/2005
TRIAL JUDGE:                             HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED:               DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                LARA A. COLEMAN
                                         DAVID A. BARFIELD
ATTORNEY FOR APPELLEE:                   CHARLES ABBOTT
NATURE OF THE CASE:                      CIVIL - INSURANCE
DISPOSITION:                             REVERSED AND RENDERED - 04/12/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      EN BANC.

      EASLEY, JUSTICE, FOR THE COURT:

                              PROCEDURAL HISTORY

¶1.   This is an interlocutory appeal concerning whether the Circuit Court of DeSoto

County erred by denying a motion for summary judgment. On January 13, 2003, Donald

Sellers (Sellers) filed suit against DeSoto Insurance, Inc. (DeSoto Insurance), Eddie Oaks

(Oaks), Brenda Oaks (Brenda), and Oaks Insurance Company (Oaks Insurance), collectively

“the Defendants” in the Circuit Court of DeSoto County, Mississippi. Sellers alleged that
the Defendants, as his insurance agents, negligently breached the duties owed to him by

failing to procure an umbrella insurance policy, for business and personal liability, in the

amount of $1 million; and by negligently misrepresenting to Sellers that he had complete

coverage including personal, umbrella liability coverage in the amount of $1 million. The

Defendants filed a motion for summary judgment claiming that Sellers’s claim was barred

by the statute of limitations. The trial court conducted a hearing and later denied the

Defendants’ motion for summary judgment. Thereafter, the Defendants filed a petition for

interlocutory appeal with this Court.    On February 24, 2006, this Court granted the

Defendants’petition for interlocutory appeal.

                                         FACTS

¶2.    In July 1993, Sellers sought complete insurance coverage, including coverage for his

unincorporated business, Donnie’s Amoco, located in DeSoto County, Mississippi, from the

Defendant’s. Oaks and Brenda, agents for DeSoto Insurance, obtained a business liability

policy for $1 million and an umbrella insurance policy for up to $1 million. The policies

were issued and underwritten by American States Insurance Company (American States).

The umbrella insurance policy provided coverage for business liability only and not personal

liability. The same policy was renewed by payment of the premiums.

¶3.    On September 28, 1996, Eddie Sellers, Sellers’s son, was involved in a motor vehicle

collision in Tennessee while driving Sellers’s car. Shane Thurman and his minor son,

Dalton, were traveling in the vehicle with Eddie. As a result of this accident, Dalton was

killed and Shane suffered serious injuries. Eddie was not working for his father at the time

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of the accident. Sellers’s insurance policy was in full force and effect on the date of the

accident.

¶4.    Sellers notified the Defendants of the accident. Sellers requested that the Defendants

file a claim with American States under his umbrella policy. The Defendants filed a loss

notice and sent it to American States. On August 26, 1997, American States sent Sellers

written notice denying his claim on the basis that the umbrella policy did not provide

coverage to Sellers’s son since Eddie was not acting in the course and scope of Sellers’s

business at the time of the accident.

¶5.    Thereafter, Sellers and his son, Eddie, were named as party defendants in a Tennessee

lawsuit concerning the collision.       Sellers’s automobile insurance carrier, State Farm

Insurance Company, defended him in the Tennessee action based on theories of imputed

liability. In January 2000, the Tennessee circuit court determined Eddie to be liable for the

wrongful death of Dalton and the injuries suffered by Shane. The Tennessee circuit court

also determined that Sellers had no imputed liability under the business purpose doctrine or

the Tennessee Family Purpose doctrine.

¶6.    The ruling of the Tennessee trial court was appealed. On February 16, 2001, the

Tennessee Court of Appeals handed down an opinion which affirmed the trial court ruling

that there was no business purpose. However, the Tennessee Court of Appeals reversed the

trial court’s ruling as to imputed liability. The appellate court held that Sellers was

personally liable for the injuries caused by his son’s negligence pursuant to the Tennessee




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Family Purpose doctrine. On October 8, 2001, the Tennessee Supreme Court denied

certiorari, which made the Tennessee Court of Appeals’s ruling final.

¶7.    On January 13, 2003, following the denial of writ of certiorari, Sellers filed suit

against the Defendants for failure to procure the requested insurance and failure to

adequately explain the coverage. After the trial court denied the Defendants’ motion for

summary judgment on the basis of the statute of limitations, the Defendants filed their

petition for interlocutory appeal. This Court granted interlocutory appeal and the Defendants

now raise the following issue: whether the trial court erred by denying the Defendants’

motion for summary judgment based on the expiration of the statute of limitations pursuant

to Miss. Code Ann. § 15-1-49 (Rev. 2003).

                                       DISCUSSION

¶8.    This Court applies a de novo standard of review on appeal from a grant of summary

judgment by the trial court. Russell v. Orr, 700 So. 2d 619, 622 (Miss. 1997); Richmond v.

Benchmark Constr. Corp., 692 So. 2d 60, 61 (Miss. 1997); Northern Elec. Co. v. Phillips,

660 So. 2d 1278, 1281 (Miss. 1995). Rule 56(c) of the Mississippi Rules of Civil Procedure

provides that summary judgment shall be granted by a court if "the pleadings, depositions,

answers to interrogatories and admissions on file, together with affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law. M.R.C.P. 56 (c) (emphasis added). The moving party has the

burden of demonstrating that there is no genuine issue of material fact, while the non-moving

party should be given the benefit of every reasonable doubt. Tucker v. Hinds County, 558

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So. 2d 869, 872 (Miss. 1990). “Issues of fact sufficient to require denial of a motion for

summary judgment obviously are present where one party swears to one version of the matter

in issue and another says the opposite.” Id. In Simmons v. Thompson Mach. of Miss., Inc.,

631 So. 2d 798, 801 (Miss.1994) (emphasis added)(citing Shaw v. Burchfield, 481 So. 2d

247, 252 (Miss. 1985)), this Court held:

       Of importance here is the language of the rule authorizing summary judgment
       'where there is no genuine issue of material fact.' The presence of fact issues
       in the record does not per se entitle a party to avoid summary judgment. The
       court must be convinced that the factual issue is a material one, one that
       matters in an outcome determinative sense . . . the existence of a hundred
       contested issues of fact will not thwart summary judgment where there is no
       genuine dispute regarding the material issues of fact.

The evidence must be viewed in the light most favorable to the non-moving party. See

Northern Electric Co., 660 So. 2d at 1281; Russell, 700 So. 2d at 622; Richmond, 692 So.

2d at 61; Simmons, 631 So. 2d at 802; Tucker, 558 So. 2d at 872.

¶9.    To avoid summary judgment, the non-moving party must establish a genuine issue of

material fact within the means allowable under the Rule. Richmond, 692 So. 2d at 61 (citing

Lyle v. Mladinich, 584 So. 2d 397, 398 (Miss. 1991)). "If any triable issues of fact exist, the

lower court's decision to grant summary judgment will be reversed. Otherwise the decision

is affirmed.” Richmond, 692 So. 2d at 61.

¶10.   The issue before this Court is whether Sellers is barred by the statue of limitations.

There is no dispute between the parties that Miss. Code Ann. § 15-1-49 is applicable in this

case. Miss. Code Ann. § 15-1-49(1) provides that “[a]ll actions for which no other period



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of limitation is prescribed shall be commenced within three (3) years next after the cause

of such action accrued, and not after.” (Emphasis added).

¶11.   The issue in this case arises from each party’s interpretation of when the statute of

limitations began to run. Sellers filed suit on January 13, 2003. The Defendants argue that

the statute of limitations began to run on August 26, 1997, the date that American States

denied Sellers’s claim. According to the Defendants, Sellers’s claim was filed more than five

years after denial of the claim.

¶12.   On the other hand, Sellers argues that the statute of limitations began to run on the

date of actual injury. Sellers agues that the date of actual injury was February 16, 2001,

when the Tennessee Court of Appeals imputed liability to Sellers. Therefore, Sellers

contends that he filed within the statute of limitation, which was less than three years after

the date of the Tennessee appellate decision.

¶13.   The trial court and Sellers rely heavily on Owens-Illinois, Inc. v. Edwards, 573 So.

2d 704, 706 (Miss. 1990), to support the proposition that Sellers had no actual damages and

had not met the elements of a tort until the Tennessee court imposed liability on Sellers.

Both the trial court and Sellers are correct that Owens-Illinois stands for the legal theory that

“[a] cause of action accrues only when it comes into existence as an enforceable claim; that

is, when the right to sue becomes vested,” and the theory that an injury has to happen before

a tort is considered to complete. Owens-Illinois, 573 So. 2d at 706-707. However, Owens-

Illinois was a personal injury case concerning products liability and negligence involving



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latent disease issues. This Court in Owens-Illinois made clear that the issue of when a cause

of action accrues was considered in the context of latent injury or disease. Id. at 706.

¶14.   The Defendants argue that Young v. Southern Farm Bureau Life Insurance, 592 So.

2d 103 (Miss. 1991), is applicable to this case. In Young, the plaintiff sued Southern Farm

Bureau on a bad faith claim for breach of contract. Young, 592 So. 2d at 107. This Court

considered when the action accrued for the insurance company’s alleged wrongful refusal

to pay life insurance benefits to Young. Id. This Court held that the six-year statute of

limitations pursuant to Miss. Code Ann. § 15-1-49, in effect at the time of the Young case,

did not begin to run until Young received notification from Southern Farm Bureau denying

payment of the accidental death benefits. Id.

¶15.   We find that the trial court erred in its reliance on Owens-Illinois. The trial court and

Sellers couch the issue of the statute of limitations in terms of damage and injury accruing

at the time the Tennessee court imposed liability on Sellers. The Defendants couch the issue

of the statute of limitations in terms of damage and injury actually accruing when American

States denied Sellers claim. As stated above, Owens-Illinois concerned the accrual of latent

disease. In Young, a bad faith case, this Court held that the statute of limitations began

running on an insurance claim from the receipt of written notice denying the claim. Young,

592 So. 2d at 107. This case concerns a misrepresentation of the policy terms and failure to

inform Sellers of the policy terms.

¶16.   In Carter v. Citigroup, Inc., 938 So. 2d 809, 817 (Miss. 2006), this Court held that

“there is a three-year statute of limitations for claims of breach of a fiduciary duty,

                                               7
misrepresentation, and conspiracy.” In Carter, this Court also analyzed Andrus v. Ellis, 887

So. 2d 175 (Miss. 2004), which addressed the issues of negligent misrepresentation and

fraudulent misrepresentation and concealment. (Sellers made no claims for fraudulent

misrepresentation or concealment in this case.) This Court held that the plaintiffs had notice

of the terms of the contract and the credit insurance and the claims accrued at the time of the

execution of the loan agreements. Andrus, 887 So. 2d at 180. This Court held:

               In Andrus, this Court addressed a claim against a lender for fraudulent
       and negligent misrepresentation and fraudulent inducement in the purchase of
       credit life, disability, and property insurance. Andrus, 887 So. 2d at 179. The
       Plaintiffs in Andrus alleged that they were either unaware that they purchased
       insurance, unaware that the insurance was not necessary, and the lender did not
       disclose the commission earned. Id. This Court found that the plaintiffs in
       Andrus were on notice of the terms of the contract and the credit insurance and
       all claims accrued at the time the loan agreements were executed. Id. at 180.
       In so far as the fraudulent concealment claim, the Court held that the Andrus
       plaintiffs had the documents in their possession and no one questioned any
       discrepancy between the document and their understanding of the document
       terms until filing suit. Id. at 181.

Carter, 938 So. 2d at 817.

¶17.   In Stephens v. Equitable Life Assur. Soc'y of the United States, 850 So. 2d 78, 82

(Miss. 2003), this Court addressed the issue of knowledge of the content of insurance policies

by holding:

       Furthermore, this Court has held that whether an insured reads the entire
       insurance policy, the "knowledge of its contents would be imputed to them as
       a matter of law." Cherry v. Anthony, 501 So. 2d 416, 419 (Miss. 1987) (citing
       Atlas Roofing Mfg. Co., v. Robinson & Julienne, Inc., 279 So. 2d 625, 629
       (Miss. 1973)). This Court has held that:

              [A] written contract cannot be varied by prior oral agreements.
              Moreover, as an evidentiary matter, parol evidence to vary the

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              terms of a written contract is inadmissible. Finally, a person is
              under an obligation to read a contract before signing it, and will
              not as a general rule be heard to complain of an oral
              misrepresentation the error of which would have been disclosed
              by reading the contract. Godfrey, Bassett & Kuykendall
              Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So.
              2d 1254, 1257 (Miss. 1991)(citations omitted).

Likewise, in Andrus v. Ellis, 887 So. 2d 175, 180 (Miss. 2004), this Court held:

       In Mississippi, a person is charged with knowing the contents of any document
       that he executes." Russell v. Performance Toyota, Inc., 826 So. 2d 719, 725
       (Miss. 2002) (citing J.R. Watkins Co. v. Runnels, 252 Miss. 87, 172 So. 2d
       567, 571 (1965) ("A person cannot avoid a written contract which he has
       entered into on the ground that he did not read it or have it read to him.")).
       "[A] person is under an obligation to read a contract before signing it, and will
       not as a general rule be heard to complain of an oral misrepresentation the
       error of which would have been disclosed by reading the contract." Godfrey,
       Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co.,
       584 So. 2d 1254, 1257 (Miss. 1991). Accordingly, the Plaintiffs are charged
       with notice and therefore all claims accrued at the time the loan agreements
       were executed.

¶18.   Sellers purchased insurance from the Defendants in 1993. Sellers continued the policy

and prior to the accident renewed the policy with an effective date of July 30, 1996. Sellers’s

insurance policies were clearly for business insurance only and not personal coverage. Oaks

submitted a claim to American States, at Sellers’s request, after the accident. The notice

claim was a general liability notice of occurrence claim to American States. On August 26,

1997, Sellers received written notification from American States that his claim was denied

because the accident did not occur within the course and scope of Sellers’s business. After

initiating suit against the Defendants claiming that the Defendants failed to procure the

requested personal coverage, Sellers contradicted that claim in his response for requests for


                                              9
admission admitting “[t]o the best of my knowledge, information and belief, I do not recall

asking or consulting with any of the Defendants to quote personal lines coverage for me or

my family from 1993 to the present.”

¶19.   Neither party disputes that Sellers purchased insurance for his unincorporated business

and an umbrella insurance policy for $1 million in 1993. The record does not reveal whether

Sellers received a copy of the policies. However, Sellers’s response to the Defendants’

motion for summary judgment revealed that while Oaks did not recall specifically reviewing

the policy with Sellers, citing to the passage of many years, his general practice was to go

over policies with clients. The record also does not contain a complete copy of the umbrella

policy. However, the record does contain a copy of the declaration page of the policy. The

declaration page indicates that it is a renewal declaration and the policy period ran from July

30, 1996 to July 30, 1997. There was no dispute that Sellers’s insurance policy was in effect

on the date of Eddie’s accident. The general liability claim form submitted to American

States also indicated that Sellers had a policy with a July 30, 1996, effective date.

¶20.   Sellers sued Oaks, Brenda, Oaks Insurance, and DeSoto Insurance, not American

States, in 2003. However, Sellers bought the policy in 1993. While the record is unclear

whether Sellers received a copy of the policy, he renewed the policy in 1996. Even giving

Sellers the benefit of doubt that he never received a copy of his insurance policy, he knew at

the latest on August 26, 1997, that his claim was denied by American States. This notification

made clear that either American States was mistaken in their denial of the claim or Sellers was

mistaken in the type of coverage that the insurance policies provided to him.

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¶21.   Thereafter, American States paid no insurance proceeds on Sellers’s claim. American

States’s denial of coverage deprived Sellers of legal representation paid by American States.

Sellers had to rely upon his automobile insurance company, State Farm, to provide assistance

in the automobile accident lawsuit in Tennessee. Sellers suffered damage when American

States denied coverage that Sellers believed he was entitled to have and paid for via insurance

premiums. In addition, the denial of benefits by American States placed Sellers on notice that

the Defendants did not procure the type of business and personal insurance that he believed

he had purchased. After American States denied coverage on August 26, 1997, Sellers had

to face the wrongful death lawsuit without the possibility of any insurance coverage under the

$1 million umbrella policy issued by American States.

¶22.   Sellers filed suit against the Defendants on January 13, 2003. The filing occurred more

five years after Sellers received the notice of denial of his claim on August 26, 1997. Clearly,

Sellers filed his claim outside the three-year statute of limitations under Miss. Code Ann.

§ 15-1-49, and his claim is barred by the statute of limitations.

¶23.   In addition, Sellers’s claim that the Defendants failed to adequately explain his

coverage terms is also without merit. Sellers made no claim for fraudulent concealment.

Since the record is not clear when Sellers received a copy of the 1993 policy or the 1996

renewal, he was nevertheless placed on notice, at the very latest, by the denial of his claim in

August 1997. He did not claim that he never received the policy. This Court has repeatedly

held that the knowledge of an insurance policy is imputed to an insured regardless of whether




                                              11
the insured read the policy. Stephens, 850 So. 2d at 82, see also Andrus, 887 So. 2d at 180,

Toyota, 826 So. 2d at 725.

¶24.   Accordingly, we find that the trial court erred by denying the Defendants’ motion for

summary judgment. Giving Sellers all benefit of the doubt, he knew in August 1997 that his

claim was denied, which placed him on notice of a possible problem with the procurement and

understanding of the terms of his insurance policy. Sellers did not file his claim until more

than five years later, and well outside the three-year statute of limitations under Miss. Code

Ann. § 15-1-49. We find that Sellers’s claims are barred by the statute of limitations.

                                      CONCLUSION

¶25.   For the above reasons, we find that the three-year statute of limitations, pursuant to

Miss. Code Ann. § 15-1-49, began to run at the latest on August 26, 1997, when Sellers

received written notice that American States denied his insurance claim. Therefore, we find

that the DeSoto County Circuit Court erred by denying the Defendants’ motion for summary

judgment. We now reverse the judgment of the Circuit Court of DeSoto County and render

judgment to dismiss Sellers’s claims against the Defendants, Eddie Oaks, Brenda Oaks, Oaks

Insurance Agency, Inc., and DeSoto Insurance, Inc., as the claims are barred by the statute

of limitations.

¶26.   REVERSED AND RENDERED.

       SMITH, C.J., WALLER, P.J., DIAZ, CARLSON AND GRAVES, JJ., CONCUR.
DICKINSON AND RANDOLPH, JJ., CONCUR IN PART AND IN RESULT. COBB,
P.J., NOT PARTICIPATING.



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