                    IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2005-CA-00303-SCT

                                   CONSOLIDATED WITH

                                   NO. 2003-CA-02457-SCT

BETHANY WOOTEN, A MINOR, BY AND
THROUGH HER PARENTS, NEXT FRIENDS,
AND GUARDIANS, BETTY WOOTEN AND
CHARLES WOOTEN

v.

MISSISSIPPI FARM BUREAU INSURANCE
COMPANY

                             ON MOTION FOR REHEARING

DATE OF JUDGMENT:                          12/1/2004
TRIAL JUDGE:                               HON. SEBE DALE, JR.
COURT FROM WHICH APPEALED:                 MARION COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                    AUSTIN R. NIMOCKS
ATTORNEY FOR APPELLEE:                     PATRICK H. ZACHARY
NATURE OF THE CASE:                        CIVIL - INSURANCE
DISPOSITION:                               AFFIRMED - 03/02/2006
MOTION FOR REHEARING FILED:                11/14/2005
MANDATE ISSUED:




       EN BANC.

       GRAVES, JUSTICE, FOR THE COURT:

¶1.    The motion for rehearing is denied. The original opinion is withdrawn and this

opinion is substituted therefor.
¶2.    On March 31, 2002, Bethany Wooten (“Wooten”) was injured during a two- car

accident. At the time of the accident, Wooten was a permissive driver of the vehicle owned

by her parents and insured under a policy issued by Mississippi Farm Bureau Insurance

Company (“Farm Bureau”). Wooten was covered under the policy, which provided for

$15,000 in medical payments coverage. Farm Bureau advised Wooten that it would not pay

the bills for medical treatment which was not completed on or before March 31, 2003. This

decision was based on language within the policy which stated that payment would be made

on medical expenses incurred within one year from the date of accident.

¶3.    On March 31, 2003, Wooten filed her Complaint for Declaratory Judgment, seeking

a declaration from the Chancery Court of Marion County that the disputed provision of the

medical payments policy be interpreted in a manner contrary to Farm Bureau’s reading of the

policy. Farm Bureau filed its answer and moved for summary judgment.

¶4.    No oral argument or hearing was held, and on October 13, 2003, the chancellor

handed down his opinion which stated that the insurance policy phrase at issue was clear and

unambiguous. Thus, the chancellor granted summary judgment to Farm Bureau. The

chancellor denied Wooten’s request for reconsideration, and Wooten appealed.

¶5.    On appeal, Wooten asserts: (1) the chancellor erred in determining that the phrase at

issue is clear and unambiguous and failed to consider the absence of the word “furnished”

from the phrase in making this determination; and (2) the chancellor erred in failing to




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acknowledge or consider the Mississippi public policy considerations at issue in this matter

as provided by this Court in prior decisions.

                                       ANALYSIS

¶6.    We apply a de novo standard of review when reviewing a trial court’s grant or denial

of summary judgment. Hudson v. Courtesy Motors, Inc., 794 So.2d 999, 1002 (Miss. 2001).

              I.     Whether the chancellor erred in determining the
                     phrase at issue was clear and unambiguous.

¶7.    Wooten maintains the chancery court erred in determining the phrase in Farm

Bureau’s auto insurance policy was clear and unambiguous. Wooten also argues the

chancery court failed to consider the absence of the word “furnished” from the phrase in

making this determination. Farm Bureau counters these arguments by stating that the phrase

at issue in the policy is clear and unambiguous and that this conclusion is supported by

previous rulings of this Court and common sense of the English language.

¶8.    The medical payments provision at issue states:

                      II. MEDICAL PAYMENTS – Coverage C

              To pay all reasonable expenses incurred within one year from
              the date of accident for necessary medical, surgical, and dental
              services, including prosthetic devices, and necessary ambulance,
              hospital, professional, and funeral services….

We have previously held that an insurance agreement should be enforced as written, unless

it is ambiguous. Miss. Farm Bureau Mut. Ins. Co. v. Jones, 754 So.2d 1203,1204 (Miss.

2000). Wooten argues the disputed phrase is ambiguous because it is subject to more than



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one interpretation since there are two differing views on the matter. Specifically, Wooten

relies on a case decided by the Supreme Court of Nevada, United Services Auto Ass’n v.

Schlang, 894 P.2d 967 (Nev. 1995). There, the Nevada Supreme Court stated that a majority

of the courts considering the issue have concluded that expenses are “incurred” when one has

paid or become legally obligated to pay them. Id. at 969. However, the Nevada Supreme

Court also noted a “minority position” which generally accepts the phrase at issue “must be

deemed to include any liability undertaken within a year of the accident for reasonable

medical services necessitated as a result of the accident, irrespective of the time within which

such services are completed.” Id. at 972 (quoting Whittle v. Gov’t Employees Ins. Co., 273

N.Y.S.2d 442, 443 (N.Y. App. Term 1966)). Wooten also informs this Court that the

“minority position” has been adopted by Tennessee 1 , New York 2 , and Louisiana.

¶9.    Farm Bureau contends the mere fact that different courts from different states have

reached differing opinions on the question presently before this Court, does not (and should

not) allow Wooten to “bootstrap” herself into the conclusion that the phrase at issue is

ambiguous.

¶10.   Therefore, we must initially decide if the disputed phrase is truly ambiguous because

of varying interpretations or if the chancellor was correct in giving the words used their plain

and ordinary meaning. Wooten cites Schlang in order to persuade this Court to adopt the

“minority position” when interpreting the term “incurred” in an insurance contract. While it

       1
           Atchley v. Travelers Ins. Co., 489 S.W.2d 836 (Tenn. 1972).
       2
           Farr v. Travelers Indem. Co., 375 N.Y.S.2d 229 (N.Y. Sup. Ct. 1975).

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is true that the Nevada Supreme Court discussed the majority and minority positions in

Schlang, when reaching its disposition, the court stated:

                  We conclude that the majority position as illustrated by Virginia
                  Farm Bureau 3 and similar cases is the better reasoned
                  approach, and elect to adopt the reasoning of those cases. In our
                  view, a contrary position would do violence to the language of
                  the insurance contract and would be inconsistent with sound
                  principles of contract law. Although we understand the hardship
                  our ruling may impose upon Schlang, that fact does not give us
                  license to rewrite the contract of insurance to provide coverage
                  where it does not exist…. For the reasons discussed above we
                  conclude that Schlang’s contested expenses were not incurred
                  within the limitation period of his policy.

Schlang, 894 P.2d at 973.

The court in Schlang did not adopt the minority position, but reversed the decision of the

district court in favor of the insurance company. Wooten also cites the 4-pronged test

developed by the Louisiana Court of Appeals in Valladares v. Monarch Ins. Co., 282 So.2d

569 (La. Ct. App. 1973). Specifically, the court stated that when:

                  [T]he injury manifests itself within one year of the accident, the
                  insurer is aware of the nature of the injury, the insured
                  approaches a physician and obtains a diagnosis and
                  recommended course of treatment prior to the expiration of one
                  year from the date of the accident, and the treatment cannot
                  successfully be completed within the one year period, that the
                  insured has nevertheless ‘incurred’ an expense within the terms
                  of the policy.




       3
           Va. Farm Bureau M ut. Ins. Co. v. Hodges, 385 S.E.2d 612 (Va. 1989).

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Valladares, 282 So.2d at 572. Wooten then asserts that the Valladares test has been

validated by this Court in Interstate Life & Accident Co. v. Waters, 213 Miss. 265, 56 So.2d

493 (1952). In Waters, the Court stated:

              According to the doctor’s testimony in the case that we have
              before us, the loss of appellee’s leg followed as the immediate
              result of the accident. The actual amputation was delayed, not
              because the appellee or the doctor entertained any hope that the
              leg might be saved, but because of the weakened condition of
              the appellee who was suffering from the severe infection and
              fever directly resulting from the accident and who would
              probably not have been able to survive the shock incident to a
              major operation. The operation was delayed not because of any
              hope that the leg might be saved, but for the purposes of
              avoiding the risk of killing the patient. Accident policies, like all
              other insurance policies, must be given a reasonable and
              sensible interpretation. The loss of the member occurred within
              thirty days from the date of the accident. The fact that the actual
              amputation has to be delayed for more than thirty days to avoid
              killing the patient whose extreme condition was due to the
              injuries received in the accident did not relieve the appellant
              from liability on the policy.


Waters, 56 So.2d at 273. Waters is distinguished from the present case because in Waters,

the amputation needed by the injured party was delayed not by choice of the injured party or

because the injured party had other treatment options, but to avoid killing him. Wooten had

the initial choice of surgery, but declined this option and chose to receive pain management

care. Unlike the injured party in Waters, Wooten’s life was not immediately in jeopardy.

Therefore, Wooten is incorrect in asserting that a construction using the test in Valladares

is consistent with Mississippi law as interpreted by this Court in Waters. This Court in



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Waters found that the injured party was dealing with a life or death situation and that the

insurance company should not be allowed to sever coverage prior to the amputation of the

injured party’s leg. Wooten’s situation is not as immediate or drastic because she had a

choice of treatment after reviewing her options. Subsequently, Wooten has not presented a

strong, persuasive argument that this Court has previously embraced the minority

interpretation of the disputed phrase.

¶11.   However, this Court has followed the plain meaning and common sense approach

when interpreting insurance clauses. Noxubee County School Dist. v. United Nat. Ins. Co.,

883 So.2d 1159 (Miss. 2004); Blackledge v. Omega Ins. Co., 740 So.2d 295 (Miss. 1999);

Allstate Ins. Co. v. Chicago Ins. Co., 676 So.2d 271 (Miss. 1996). The chancery court relied

on this Court’s definition of the word “incurred” in Reserve Life Co. v. Coke:

       As used in the policy and suit the word “incurred” emphasizes the idea of
       liability and the definition of “incur” is to have liabilities (or a liability) thrust
       upon one by act or operation of law; a thing for which there exists no
       obligation to pay, either express or implied, cannot in law constitute an
       “incurred expense”; a debt or expense has been incurred only when liability
       attaches.

24 Miss. 936, 183 So.2d 490 (1966). Also, according to Webster’s New Collegiate

Dictionary 1337 (1980), the word “within” may function as an adverb, preposition, noun, or

adjective. In the context in which it is used in the disputed phrase, “within” functions as a

preposition - meaning not beyond the quantity, degree, or limitations. So, the plain, common

sense meaning of the phrase “incurred within one year from the date of accident” may

sensibly be interpreted to mean that the liability or duty of the insurance company to pay

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medical expenses may not extend beyond the limitation of one year from the date of the

accident.

¶12.   Wooten also argues that the chancellor failed to consider the absence of the words

“and furnished” from the phrase under consideration. In essence, Wooten asks to have this

Court revise the disputed phrase in order to change the meaning as it is currently written.

However, Wooten is precluded from making this argument because initially in her Brief in

Support of the Motion for Summary Judgment, Wooten stated that “other jurisdictions and

courts have addressed this issue, but these cases should not be considered by this court

because the policy language at issue in those cases is different from the policy language here.

Specifically, these cases involve policy language which require that the costs at issue be

“incurred for services furnished”, or other similar language involving the words “furnish”

or “furnished”. Clearly the use of the term “furnish” places a different meaning on the

subject phrase. Thus, in addressing this issue this court should only employ those cases

which address which address identical policy language....” Farm Bureau is correct when it

suggests that Wooten should not be allowed to assert as error that which she requested the

chancery court ignore in her original motion and brief.

¶13.   Furthermore, this Court traditionally applies the ordinary and plain meaning of words

and concludes that the disputed phrase must be construed as written. Therefore, the

chancellor did not err in his interpretation of the phrase.




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       II.    Whether the chancellor erred in failing to acknowledge or consider
              Mississippi public policy considerations at issue in this matter.

¶14.   After careful examination of Wooten’s brief, we conclude that Wooten failed to

provide any statutory provision or case law in support of a public policy argument. Also, this

Court has stated that a public policy or statutory directive is not present in the medical

payments context. Miss. Farm Bureau Cas. Ins. Co. v. Britt, 826 So.2d 1261 (Miss. 2002).

This Court reasoned: “because there are no equivalent statutory provisions in Mississippi

that affect medical payment coverage contained in automobile insurance policies, we hold

such coverage as governed by the terms of each insurance policy in which it is afforded,

including terms of limitation….” Id. at 1265 (quoting Szumigala v. Nationwide Mut. Ins.

Co., 853 F.2d 274, 279 (5th Cir. 1988)). Absent any relevant statutory provisions or case law

to support a public policy argument, this is an issue better suited for the Legislature to

address rather than this Court.

                                      CONCLUSION

¶15.   We agree that the chancellor did not err in his interpretation of the medical payments

provision and that Wooten failed to make a valid public policy argument before this Court.

Therefore, we affirm the judgment of the chancery court.

¶16.   AFFIRMED.

    SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ AND EASLEY, JJ., NOT PARTICIPATING.




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