                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2006-CA-00478-SCT

LEALUE “ANNETTE” COUSIN AND RICHIE
COUSIN

v.

ENTERPRISE LEASING CO M PANY-SOUTH
CENTRAL, INC. AND JANA KELLEMS


                           ON MOTION FOR REHEARING

DATE OF JUDGMENT:                       02/16/2006
TRIAL JUDGE:                            HON. HENRY L. LACKEY
COURT FROM WHICH APPEALED:              CHICKASAW COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:               CHYNEE ALLEN BAILEY
                                        ORLANDO RODRIQUEZ RICHMOND, SR.
ATTORNEYS FOR APPELLEES:                LUTHER T. MUNFORD
                                        JAMES GRADY WYLY, III
                                        THEAR JULES LEMOINE
NATURE OF THE CASE:                     CIVIL - PERSONAL INJURY
DISPOSITION:                            AFFIRMED - 02/15/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       CARLSON, JUSTICE, FOR THE COURT:

¶1.    Motion for rehearing is denied. The original opinions are withdrawn and these

opinions are substituted therefor.

¶2.    From the Chickasaw County Circuit Court’s grant of summary judgment in favor of

Enterprise Leasing Company - South Central, Inc., and Jana Kellems, Lealue “Annette”
Cousin and Richie Cousin appeal to us. Finding no error in the trial court’s grant of

summary judgment, we affirm.

                  FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶3.    On March 22, 2002, Schiquita Rogers 1 rented a 2002 Pontiac Grand Am from the

Tupelo, Mississippi, branch of Enterprise Leasing Company - South Central, Inc (Enterprise).

Enterprise employee Jana Kellems rented the car to Rogers. Rogers produced an unexpired

license to Kellems that had been issued by the State of Mississippi. However, unbeknownst

to Kellems, Rogers’s license had been suspended.

¶4.    Enterprise has a standard procedure for renting cars. Kellems’s affidavit states the

following:

       5. The Enterprise rental procedures include a requirement that the employee
       inspect and check a potential customer’s driver’s license, and compare and
       verify the signature of the customer written in the employee’s presence with
       that on the customer’s driver’s license.
       6. Each and every time I rented a vehicle while employed at Enterprise, I
       followed these procedures and required that the potential customer provide me
       with a driver’s license. I then would enter the customer’s vital statistics,
       including his/her name and date of birth, as well as his/her physical address,
       driver’s license number, state of issuance and expiration date, into the
       Enterprise computer. After printing the rental agreement and having the renter
       sign the agreement, I compared the signature thereon with the signature on the
       renter’s driver’s license, and verified that the signatures matched.

Kellems correctly followed Enterprise’s procedure when she leased the car to Rogers.2




       1
           Schiquita Rogers is sometimes referred to in the record as Shaquita Rogers.
       2
       The rental contract that Rogers signed also had a clause where Rogers warranted that
she possessed an unsuspended driver’s license.

                                               2
¶5.    On March 23, 2002, Rogers ran a stop sign in Chickasaw County while driving her

rented car. Rogers collided with a vehicle driven by Lealue “Annette” Cousin, who suffered

leg injuries requiring surgery that cost $40,000.3 The officer who investigated the accident

cited Rogers for driving with a suspended license.4 Due to her injuries and damages suffered

as a result of this accident, Cousin and her husband, Richie Cousin,5 sued Enterprise and

Kellems 6 in the Circuit Court for the Second Judicial District of Chickasaw County, alleging

negligence per se 7 for renting a car to a person who was not then duly licensed according to

Miss. Code Ann. § 63-1-67 (Rev. 2004). In due course, Enterprise filed a motion for

summary judgment. In support of its motion for summary judgment, Enterprise attached to

the motion, inter alia, copies of the complaint; the accident report; the Rogers/Enterprise car-

rental agreement; the sworn affidavit of Jana Kellems (Eakes); a State of Mississippi,

Department of Public Safety, motor vehicle report on Rogers; and, an itemization of

undisputed facts. The plaintiffs responded to Enterprise’s motion for summary judgment


       3
        The plaintiffs reached a settlement with Rogers’s insurer for the maximum policy
limits of $10,000. Cousin reached a settlement with her insurer for underinsured coverage
benefits in the amount of $30,000.
       4
        Rogers later pled guilty to driving with a suspended license in Chickasaw County
Justice Court.
       5
         Richie Cousin asserted a loss of consortium claim. We will sometimes refer to the
plaintiffs as “Cousin.”
       6
      Cousin sued Kellems as an agent of Enterprise. Thus, we will refer to Enterprise and
Kellems collectively as “Enterprise” for the sake of clarity.
       7
        Cousin also claimed negligent entrustment, but she did not brief this Court on the
issue. Therefore, we will only discuss negligence per se.

                                               3
asserting that summary judgment was inappropriate and attaching to their response copies

of the complaint; the accident report; the rental agreement; Lealue Cousin’s deposition;

Rogers’s motor vehicle report; and a Chickasaw County justice court document entitled

“Uniform Traffic Citation.” The plaintiffs also responded to Enterprise’s itemization of

undisputed facts. On February 22, 2006, the Chickasaw County Circuit Court, Judge Henry

L. Lackey, presiding, entered an order granting summary judgment in favor of Enterprise.

In his order, Judge Lackey stated, inter alia:

       Rogers presented a facially valid, unexpired driver’s license to Kellems at the
       time the vehicle was leased. Kellems properly recorded Rogers’ driver’s
       license information on the Rental Agreement, recorded the required
       information, inspected Rogers’ drivers license, compared Rogers’ signature on
       her driver’s license to her signature on the Rental Agreement and complied
       with Section 63-1-67, MCA, therefore, defendants, Enterprise and KELLEMS
       are entitled to judgment as a matter of law.

It is from Judge Lackey’s grant of summary judgment and entry of a judgment of dismissal,

with prejudice, that the plaintiffs now appeal to us.

                                       DISCUSSION

¶6.    We employ a de novo standard of review of a trial court’s grant or denial of summary

judgment and, pursuant to Miss. R. Civ. P. 56(c), we examine all the evidentiary matters

before us, such as admissions in pleadings, answers to interrogatories, depositions, affidavits,

etc. Stuckey v. Provident Bank, 912 So.2d 859, 864 (Miss. 2005); Davis v. Hoss, 869 So.2d

397, 401 (Miss. 2004) (citing Hurdle v. Holloway, 848 So.2d 183, 185 (Miss. 2003)). The

evidence is viewed in the light most favorable to the party opposing the motion. If there is

no genuine issue of material fact and the moving party is entitled to judgment as a matter of

                                                 4
law, summary judgment should be entered in the movant’s favor.                 The burden of

demonstrating that no genuine issue of material fact exists is on the moving party. Id. (citing

Moore ex rel. Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658, 663 (Miss. 2002)). The

party opposing the motion must be diligent and “may not rest upon the mere allegations or

denials of the pleadings, but instead the response must set forth specific facts showing that

there is a genuine issue for trial.” Harrison v. Chandler-Sampson, Ins., Inc., 891 So.2d 224,

228 (Miss. 2005) (citing Miller v. Meeks, 762 So.2d 302, 304 (Miss. 2000)).

¶7.    There is only one issue for this Court to decide. This case presents a matter of first

impression for this Court.

       WHETHER ENTERPRISE WAS NEGLIGENT PER SE ACCORDING
       TO MISS. CODE ANN. § 63-1-67 WHEN RENTING A CAR TO A
       DRIVER WHOSE LICENSE HAD BEEN SUSPENDED.

¶8.    Cousin argues that, according to Miss. Code Ann. § 63-1-67 (Rev. 2004), Enterprise

was negligent per se by renting a car to a person who was not “then duly licensed.” 8 Cousin

argues that but for Enterprise’s unlawful action, Cousin would not have been injured. Miss.

Code Ann. § 63-1-67 9 states:




       8
        The plaintiffs also asserted a negligent entrustment claim, but have failed to offer any
argument or citation to authority in support of this claim; therefore, we need not consider this
issue on appeal. In re Adoption of a Minor Child, 931 So.2d 566, 578 (Miss. 2006).
       9
         Miss. Code Ann. § 63-1-69 sets forth the penalty for violating section 63-1-67, which
is “a fine of not less than five dollars ($5.00) and costs and not more than two hundred fifty
dollars ($250.00) and costs, or by imprisonment in the county jail for a period of from one
to six months, or by both the fine and imprisonment at the discretion of the court.”

                                               5
       (1) No person shall rent a motor vehicle to any other person unless the latter
       person is then duly licensed under the provisions of this article, or, in the case
       of a nonresident, then duly licensed under the laws of the state or country of
       his residence except a nonresident whose home state or country does not
       require that an operator be licensed.
       (2) No person shall rent a motor vehicle to another until he has inspected the
       license of the person to whom the vehicle is to be rented and compared and
       verified the signature thereon with the signature of such person written in his
       presence.
       (3) Every person renting a motor vehicle to another shall keep a record of the
       registration number of the motor vehicle so rented, the name and address of the
       person to whom the vehicle is rented, the number of the license of said latter
       person and the date and place when and where said license was issued. Such
       record shall be open to inspection by any police officer or officers or other
       employee of the commissioner.

Id. (emphasis added). However, Enterprise argues that since it complied with the statute by

checking Rogers’s facially valid license according to the procedures set forth in subsections

(2) and (3), Enterprise was not guilty of negligence per se.

¶9.    The parties in essence argue over the meaning of the phrase “then duly licensed.”

Cousin urges this Court to interpret the statute literally and require that rental car companies

request the status of each potential renter’s driver’s license from the Mississippi Department

of Public Safety before renting the car. Cousin states that rental car companies could receive

this information “within a couple of days” after the request.

¶10.   On the other hand, Enterprise urges this Court to interpret the statute as a whole. It

argues that “then duly licensed” means that the potential renter must produce a facially valid,

unexpired driver’s license. Further, Enterprise argues that the statute sets forth the procedure

for checking a facially valid driver’s license. First, the company must check the signatures

of the renter.

                                               6
       (2) No person shall rent a motor vehicle to another until he has inspected the
       license of the person to whom the vehicle is to be rented and compared and
       verified the signature thereon with the signature of such person written in his
       presence.

Miss. Code Ann. § 63-1-67(2). Then, the company must record the data from the license.

       (3) Every person renting a motor vehicle to another shall keep a record of the
       registration number of the motor vehicle so rented, the name and address of the
       person to whom the vehicle is rented, the number of the license of said latter
       person and the date and place when and where said license was issued. Such
       record shall be open to inspection by any police officer or officers or other
       employee of the commissioner.

Miss. Code Ann. § 63-1-67(3). In other words, in order to fulfill their obligations and

responsibilities under section 63-1-67(1), rental car companies must comply with the

provisions of subsections (2) & (3). Enterprise argues that, because the Legislature set out

in such detail the process for checking a potential car renter’s driver’s license, the Legislature

would have included a requirement of a rental car company’s checking with the Department

of Public Safety if it had intended for rental companies to do so as a prerequisite for renting

a car. The Legislature has had numerous opportunities to amend the statute if it wished to

do so, and yet the statute has remained virtually unchanged since 1938.

¶11.   Since this is an issue of first impression for this Court, we find it helpful to look to the

decisions of other states. In U-Haul Co. v. Rutherford, 10 Md. App. 373, 270 A.2d 490

(Md. Ct. Spec. App. 1970), the Maryland Court of Special Appeals held that Maryland’s

statute concerning rental cars, Md. Code Ann. Art. 66 ½ § 114, which contained three

sections similar to Mississippi’s statute, should be interpreted as a whole. Further, that court

held that U-Haul did not violate section (a) of the statute, which stated that one could only

                                                7
rent a vehicle to a person who was then duly licensed, if one complied with the procedure for

checking that license in subsection (b). However, the statute was repealed on July 1, 1977.

¶12.   We also look to Cowan v. Jack, 922 So.2d 559 (La. Ct. App. 4 Cir. 2005) and Dortch

v. Jack, 2005 U.S. Dist. LEXIS 41115 (S.D. Miss. 2005). In these cases, the Court of

Appeal of Louisiana, Fourth Circuit, and the United States District Court for the Southern

District Court of Mississippi, interpreted North Carolina’s statute as placing no duty on the

part of rental car companies to conduct a background check of driver’s licenses. N.C. Gen.

Stat. § 20-34 states:

       No person shall authorize or knowingly permit a motor vehicle owned by him
       or under his control to be driven by any person who has no legal right to do so
       or in violation of any of the provisions of this Article.

Id. (emphasis added).

¶13.   We turn to Massachusetts. In Nunez v. A & M Rentals, 822 N.E.2d 743 (Mass. App.

Ct. 2005). John Patten presented A & M with a facially valid driver’s license that had in fact

been suspended. Patten rented a 1999 Chevrolet Corvette. While driving 100 miles per hour,

Patten collided with Jose Valentin’s 1998 Ford Escort, killing Valentin and seriously injuring

his companion. Valentin’s estate sued on a theory of negligent entrustment based on Mass.

Gen. Laws ch. 90, § 32C,10 which states in relevant part:

       No lessor shall lease any motor vehicle until the lessee shows that he or his
       authorized operator is the holder of a duly issued license to operate the type of
       motor vehicle or trailer which is being leased.


       10
       Mass. Gen. Laws ch. 90, § 12 sets forth the penalty for knowingly violating Mass.
Gen. Laws ch. 90, § 32C.

                                              8
Id. (emphasis added). The Nunez court held that A & M had no duty to verify the status of

Patten’s driver’s license because Patten presented a duly issued license. Further, the court

held that since the Massachusetts legislature was silent on the issue, the court would not

impose a further duty on A & M.

¶14.   Cousin argues that “duly issued license” is not the same as “then duly licensed,” and

further argues that the language of Mississippi’s statute, unlike Massachusetts’s statute,

places a much higher burden on rental car companies to only rent cars to drivers with

currently valid driver’s licenses. Cousin also argues that, unlike North Carolina’s statute, a

knowledge requirement is absent from Mississippi’s statute; therefore, Enterprise should be

held liable.

¶15.   We find Cousin’s argument to be wholly unpersuasive and thus hold that Enterprise

was not negligent per se because the statute only places a burden on rental car companies to

accept facially valid, unexpired driver’s licenses. We are satisfied that the intent of the

statute was that rental car companies were to comply with section 63-1-67(1) by fulfilling

their responsibilities as mandated under subsections (2) and (3). The Mississippi Legislature

set forth its required procedure in the statute, and Enterprise complied with that procedure.

We thus find this issue to be without merit.

                                      CONCLUSION

¶16.   Because Enterprise complied with the procedures set forth by statute, the trial judge

did not err in granting summary judgment in favor of Enterprise. We thus affirm the final

judgment of the Circuit Court for the Second Judicial District of Chickasaw County.

                                               9
¶17.   AFFIRMED.

     SMITH, C.J., WALLER AND COBB, P.JJ., AND EASLEY, J., CONCUR.
DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
DIAZ, GRAVES AND RANDOLPH, JJ.


       DICKINSON, JUSTICE, DISSENTING:

¶18.   Mississippi law clearly and unambiguously prohibits the rental of a motor vehicle to

any person who is not “then duly licensed.” This case requires the Court to decide whether

a vehicle rental company may escape the consequences of renting an automobile to a person

with an invalid driver’s license by demonstrating that the invalid license was “facially valid.”

Because the statute neither contains nor implies any such exception, I respectfully dissent.

¶19.   Prior to casting my dissenting vote, I carefully searched the Mississippi Code for any

provision of law suggesting that a “facially valid” license could qualify a person as being

“then duly licensed.” I found no such exception. The majority, on the other hand, holds that

Enterprise did not violate Miss. Code Ann. Section 63-1-67 since the statute “only places a

burden on rental car companies to accept facially valid, unexpired driver’s licenses.” The

majority reaches this conclusion despite the following clear, precise language employed by

the Legislature: “No person shall rent a motor vehicle to any other person unless the latter

person is then duly licensed under the provisions of this article . . . .” Miss. Code Ann. § 63-

1-67(1) (Rev. 2004) (emphasis added). Thus, the majority ipso facto considers a person who

possesses an invalid driver’s licence that appears valid to be “then duly licensed.”




                                              10
¶20.   It seems to me this Court should simply look at the words of the statute and apply the

meaning of those words in deciding this case. The statute’s key three-word phrase, “then

duly licensed,” is not overly complicated.

       “Then”

¶21.   The only time period or event referred to by, or associated with, the statute is the time

a person rents a motor vehicle to another person. Thus, the word “then,” as used in the

statute, refers to – and can only modify – the time of the rental. In other words, the

requirement of the statute must be met at the time of the rental.

       “Duly”

¶22.   The word “duly” is in every dictionary and thesaurus I was able to locate. The

definitions include inter alia “in a proper manner,” The American Heritage Dictionary of the

English Language (4th ed. 2004); “in a due manner or time,” Merriam-Webster's Dictionary

of Law (2006); and “in accordance with legal requirements,” Black’s Law Dictionary 407

(7th ed. 2000). Synonyms of “duly” include “appropriately,” “fitly,” “properly,” and

“suitably.” Roget's New Millennium Thesaurus (1st ed. 2006). I found no reference in any

dictionary or thesaurus that remotely relates the word “duly” with anything appearing to be

what it is not. Given these definitions and synonyms, I fail to follow the majority’s logic in

finding that a person who does not hold a valid driver’s license is nonetheless “duly licensed”

simply because that person presented an invalid license that was “facially valid.”

¶23.   The distinction is important in this case because by renting a motor vehicle to a person

who was not “then duly licensed,” Enterprise violated the statute and thus might be found

                                              11
liable for Cousin’s damages under the doctrine of negligence per se. “Mississippi recognizes

the doctrine of negligence per se, which in essence provides that breach of a statute or

ordinance renders the offender liable in tort without proof of a lack of due care.” Palmer v.

Anderson Infirmary Benevolent Ass’n, 656 So. 2d 790, 796 (Miss. 1995). “To prevail in

an action for negligence per se, a party must prove that he [or she] was a member of the class

sought to be protected under the statute, that his [or her] injuries were of a type sought to be

avoided, and that violation of the statute proximately caused his [or her] injuries.” Snapp

v. Harrison, 699 So. 2d 567, 571 (Miss. 1997) (citing Thomas v. McDonald, 667 So. 2d 594,

597 (Miss. 1995)). “When a statute is violated, the injured party is entitled to an instruction

that the party violating is guilty of negligence, and if that negligence proximately caused or

contributed to the injury, then the injured party is entitled to recover.” Gallagher Bassett

Servs. v. Jeffcoat, 887 So. 2d 777, 787 (Miss. 2004).

¶24.   In my view, Cousin should be allowed to proceed with her action. She is certainly

within the class of persons sought to be protected by Section 63-1-67 (persons who share the

road with people who rent cars and might suffer injury due to the careless driving of an

unlicensed person). Also, Cousin suffered injuries of the type sought to be avoided by the

section’s requirement that only duly licensed drivers be allowed to rent cars (injuries

sustained in a car crash with a renter who had a suspended license.) Whether she can prove

that Enterprise’s negligence proximately caused or contributed to her injuries is for a jury to

decide.



                                              12
¶25.   With all due respect to the majority, its decision today injects an exception into

Section 63-1-67(1), and thus represents an amendment to, rather than an interpretation of, the

statute. I acknowledge the difficulty visited upon rental car companies by the language of

the statute and the consequences of its application. However, the decision of whether to

alleviate that difficulty rests with the Legislature, not us. We must respect the wording

selected by the Legislature, even though we might believe the statute to be impractical,

unworkable, or unwise. Our privilege and duty to amend or invalidate statutes ends at the

line which separates constitutional statutes from those which are not. There being no

suggestion in this case that Enterprise has a constitutional right to rent a motor vehicle to a

person with a license which is invalid, but appears to be valid, I must respectfully dissent.

¶26.   For these reasons, I would reverse and remand.

       DIAZ, GRAVES AND RANDOLPH, JJ., JOIN THIS OPINION.




                                              13
