                            IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2001-CA-01512-SCT

LEO POINDEXTER
v.

SOUTHERN UNITED FIRE INSURANCE
COMPANY

DATE OF JUDGMENT:                                8/27/2001
TRIAL JUDGE:                                     HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:                       LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                          GARY L. GEESLIN
ATTORNEY FOR APPELLEE:                           THOMAS L. SEGREST
NATURE OF THE CASE:                              CIVIL - PERSONAL INJURY
DISPOSITION:                                     AFFIRMED IN PART; REVERSED &
                                                 REMANDED IN PART - 02/27/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



        EN BANC.

        COBB, JUSTICE, FOR THE COURT:

¶1.     Leo Poindexter’s pickup truck was damaged in a collision with a vehicle driven by Elby Fields.

Fields was insured under an automobile insurance policy issued by Southern United Fire Insurance

Company (Southern United). Poindexter filed suit in the Lowndes County Circuit Court, against Fields and

Southern United, seeking to recover compensatory damages and punitive damages directly from Southern

United. After Southern United filed an answer for Fields, the same attorney filed a separate answer for

Southern United. In Southern United’s separate answer, it sought dismissal under Miss. R. Civ. P.

12(b)(6), which the circuit court granted. Poindexter appeals the dismissal, asserting three assignments of

error, edited as follows:
        I.      DISMISSING HIS SUIT FOR FAILURE TO STATE A CLAIM
                UPON WHICH RELIEF MAY BE GRANTED.
        II.     DENYING HIS MOTION TO AMEND THE COMPLAINT.
        III.    HOLDING THAT HIS MOTION TO COMPEL DISCOVERY WAS
                MOOT.

¶2.     Although we agree with the trial court’s dismissal of Poindexter’s original complaint, we find that

the trial court erred in denying Poindexter’s motion to amend the complaint under Rule 15(a). Hence, we

reverse on that issue and remand for further proceedings.

                                                 FACTS

¶3.     In June 2000, Poindexter’s 1971 Chevrolet pickup truck (being driven at the time by his son) was

involved in a collision with Fields’s vehicle at an intersection in Columbus, Mississippi. Poindexter’s truck

was towed from the scene of the accident and stored at the premises of the tow truck operator.

¶4.     Poindexter made demand on Fields’s insurance carrier, Southern United, for payment to cover

damage to his truck, loss of the use and enjoyment of his truck, and towing and storage fees. Southern

United made an offer of settlement to Poindexter, which was rejected because it did not include payment

for loss of use or towing and storage fees.

¶5.     Poindexter filed a complaint in circuit court seeking compensatory damages of more than $7,000,

which included $3,000 for damage to the truck, with the remainder being loss of use, towing and storage

fees. The complaint further prayed for a declaratory judgment, pursuant to Rule 57(b)(2), that Poindexter’s

claims for loss of use, towing and storage, were covered under Fields’s insurance policy with Southern

United. Finally, the complaint alleged that Southern United breached its implied covenant of good faith and

fair dealing in its settlement offer, and asked for $500,000 in punitive damages.

¶6.     Southern United answered the complaint as Fields’s insurer, and separately, as to its own liability.

In its answer in its separate capacity, Southern United admitted that Fields’s policy was in full force and


                                                     2
effect at the time of the accident, and that unspecified “coverage” existed under the policy. Southern United

also asserted the following three defenses: (1) the complaint fails to state a claim or cause of action against

Southern United upon which relief may be granted; (2) Poindexter may not bring a direct action against

Southern United for recovery of money it may be obligated to pay under its insurance contract with Fields;

and (3) Poindexter does not have standing to assert a third-party independent tort claim for bad faith

against Southern United.

¶7.     Poindexter served a request for production of documents, which was partially resisted by Southern

United on the basis that it was not a proper party to the lawsuit. Poindexter then filed a motion to compel

discovery.

¶8.     Pursuant to Rule 12(d), Southern United moved for a preliminary hearing on its motion to dismiss.

Poindexter then filed a motion for leave to file a first amended complaint, to add the additional claim of

intentional infliction of emotional distress.

¶9.     The trial court conducted a hearing on Southern United’s motion to dismiss and Poindexter’s

motions to compel discovery and for leave to file a first amended complaint. At the conclusion of the

hearing, the trial court granted Southern United’s motion to dismiss and denied Poindexter’s two motions.

The trial court specifically concluded that: Poindexter could not bring a direct action against Southern

United for recovery of sums which it may become obligated to pay under its insurance policy with Fields;

Poindexter could not assert a separate or independent tort claim against Southern United for its alleged

failure to settle Poindexter’s claims against Fields; and because Southern United has admitted coverage for

the accident, there existed no grounds for Poindexter to proceed against Southern United under Rule 57.

¶10.    The trial court also found that Rule 12(b) provides that upon dismissal for failure to state a claim,

leave to amend shall be granted in accordance with Rule 15(a), subject to the trial judge’s sound discretion,


                                                      3
but because Poindexter would be unable to state a cause of action against Southern United under the facts

set forth in the complaint, together with any reasonable inferences to be drawn therefrom, granting leave

to amend would be futile. Finally, the trial court dismissed Poindexter’s motion to compel discovery as

moot.

¶11.    Only Poindexter’s separate claims against Southern United were dismissed pursuant to Miss. R.

Civ. P. 54(b) and are before this Court on appeal. Poindexter’s claims for property damage, loss of use,

towing and storage against Fields are not the subject of this appeal.

                                      STANDARD OF REVIEW

¶12.    This Court’s standard of review for a motion to dismiss for failure to state a claim upon which relief

may be granted is well-established, as follows:

        A motion to dismiss for failure to state a claim under Mississippi Rule of Civil Procedure
        12(b)(6) raises an issue of law. This Court reviews questions of law de novo. When
        considering a motion to dismiss, the allegations in the complaint must be taken as true, and
        the motion should not be granted unless it appears beyond doubt that the plaintiff will be
        unable to prove any set of facts in support of his claim.

Sennett v. United States Fid. & Guar. Co., 757 So.2d 206, 209 (Miss. 2000) (citations omitted).

                                             DISCUSSION

        I.      DISMISSING THE SUIT FOR FAILURE TO STATE A CLAIM
                UPON WHICH RELIEF MAY BE GRANTED.

¶13.    Poindexter claims Southern United has taken the position that it is not responsible for loss of use,

towing or storage costs. By taking this position, Poindexter argues that Southern United has denied its

claim against Fields, and thus Poindexter is permitted to join Southern United as a defendant, pursuant to

Rule 57.




                                                     4
¶14.    Southern United responds that it has not denied coverage, that it has admitted that Fields’s policy

was in full force and effect at the time of the accident, and that it concedes that coverage existed under the

policy. Southern United argues that the position it has taken clearly has nothing to do with coverage;

instead, it solely concerns the extent, amount and character of damages which Poindexter is claiming.

Southern United states that when Poindexter’s suit against Fields is finally tried, and if Poindexter obtains

a final non-appealable judgment for his claims, Southern United, as Fields’ insurer, will pay that judgment

up to the limits of its policy with Fields.

¶15.    Rule 57 was amended in 2000 to modify Mississippi’s traditional rule which barred any type of

direct action by an injured party against an insurer. Miss. R. Civ. P. 57(b)(2) & cmt. The amended rule

allows an injured party to seek a declaratory judgment establishing coverage, where the insurance company

has indicated it may deny coverage of the claim. The amended rule reads in pertinent part:

        (2) A contract may be construed either before or after there has been a breach thereof.
        Where an insurer has denied or indicated that it may deny that a contract covers a party’s
        claim against an insured, that party may seek a declaratory judgment construing the
        contract to cover the claim.

Miss. R. Civ. P. 57(b)(2).

¶16.    Poindexter claims that the amended Rule 57 is merely a codification of Lewis v. Allstate Ins.

Co., 730 So.2d 65, 71 (Miss. 1998), where this Court held:

        We take this opportunity to state that if an insurance company can conduct a declaratory
        action regarding coverage prior to resolution of an underlying wrongful death trial, then the
        insureds and third party beneficiaries should be able to raise the coverage question in the
        underlying lawsuit as well. Pursuant to our rules of civil procedure, a hearing to determine
        coverage may be conducted if necessary. See Miss. R. Civ. P. 57 cmt. (recognizing that
        a plaintiff may ask for a declaratory judgment either as his sole relief or in addition or
        auxiliary to other relief). Such reviews of insurance contracts do not involve the jury and
        are often cursory. Accordingly, if a question of insurance coverage exists, a party should
        be able to bring the insurer into a lawsuit and have the coverage question resolved by the



                                                      5
        judge. It should be noted that this does not mean that a party can mention insurance before
        a jury, as that rule still holds in this state.

¶17.    Southern United contends that Poindexter’s truck was rendered a total loss in the accident.

Poindexter does not seem to dispute this, admitting in his brief that “Plaintiff’s vehicle was later determined

to be a total loss.” In its settlement offer, Southern United took the position that Poindexter could not

recover damages for loss of use and storage of a vehicle that is not repairable. Southern United, however,

reminds this Court that this appeal is not the proper forum in which to litigate this issue, as this issue must

be decided when Poindexter’s case against Fields is tried. Southern United correctly states:

                In attempting to litigate these issues under the guise of a Rule 57 claim for
        determination of coverage, Poindexter has gotten the cart before the horse. He either
        misunderstands the distinction between coverage under the policy and recoverable
        damages under the law, or is deliberately attempting to create the illusion of a coverage
        issue.
                Since Southern United has not denied coverage under the policy of insurance
        issued to Fields, there is not basis for an action under Rule 57(b)(2), MRCP, and
        Poindexter’s reliance on Lewis . . . is misplaced. Without a coverage dispute to resolve
        under Rule 57(b)(2), Southern United is not a proper party to these proceedings.

¶18.    While the amended Rule 57 permits an injured party to seek a declaratory judgment of coverage,

it does not permit an injured party to join an insurance company that has admitted coverage. Southern

United has never disputed coverage; the extent of the coverage is an issue that must first be resolved by

the trial court in Poindexter’s action against Fields.

¶19.    Justice Diaz rejects as “semantic” our distinction between denial of coverage and admission of

coverage, and submits that Southern United’s reluctance to pay until a court has adjudicated exactly what

is owing to Poindexter is tantamount to a denial of coverage. For better or worse, semantics, the study of

what words mean, is an essential part of the business of this Court, however maligned a science it has

become. The meaning of Rule 57(b)(2) is that declaratory judgment may be sought where an insurer “has



                                                         6
denied or indicated that it may deny” the existence of coverage. Southern United has stated in its brief to

this Court: “If and when Mr. Poindexter obtains a final, non-appealable judgment for these claims,

Southern United will pay the judgment, up to the limits of its policy issued to Fields.” What

implication is there here that Southern United plans to deny coverage? Judicial estoppel would presumably

serve to quash any belated effort to do so and perhaps open Southern United up to bad-faith liability as

well. See Mauck v. Columbus Hotel Co., 741 So. 2d 259, 264-65 (Miss. 1999) (judicial estoppel

applies “where there is multiple litigation between the same parties and one party knowingly assert(s) a

position inconsistent with the position in the prior litigation”) (internal quotation marks omitted). Declaratory

judgments are meant to “serve a useful purpose in clarifying and settling the legal relations in issue” and

“afford[ing] relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.” Miss. R.

Civ. P. 57 cmt. No uncertainty or lack of clarity exists with regard to coverage, so declaratory judgment

is inappropriate.

¶20.    Therefore, this issue is without merit.

        II.      DENYING HIS MOTION TO AMEND THE COMPLAINT.

¶21.    In his complaint, Poindexter sought relief from Southern United on account of its alleged “bad faith”

refusal to settle his claim against Fields. In his first amended complaint, Poindexter was attempting to add

the claim of intentional infliction of emotional distress. Poindexter argues that the amended complaint cures

the lack of privity problem from which his bad faith claim suffers. Poindexter filed his motion for leave to

amend twenty-two days prior to the hearing. Poindexter argues that the trial court’s ruling, denying his

motion, was in direct conflict with the mandatory language of Rule 12(b) and 15(a) of the Mississippi Rules

of Civil Procedure.




                                                       7
¶22.    As we stated in Parker v. Mississippi Game & Fish Comm’n, 555 So. 2d 725 (Miss.

1989), “Our scope of review of an order denying a motion for leave to amend under Rule 15 is addressed

to the sound discretion of the trial judge.” Id. at 730. “Unless we are convinced that the trial judge abused

his discretion, we are without authority to reverse.” Id.

¶23.    Southern United admits that Rule 12(b) provides that upon dismissal for failure to state a cause of

action, leave to amend shall be granted in accordance with Rule 15(a), and further, leave to amend shall

be granted when justice so requires. However, Southern United cites our opinion in Simmons v.

Thompson Machinery of Miss., Inc., 631 So.2d 798 (Miss. 1994), for the following:

        Miss. R. Civ. P. 15(a) provides, inter alia, that “leave [to amend] shall be freely given
        when justice so requires.” . . . [I]f the underlying facts or circumstances relied upon by the
        plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test
        his claim on the merits. In the absence of any apparent or declared
        reason—such as . . . undue prejudice to the opposing party by virtue of
        allowance of the amendment, futility of the amendment, etc.—the leave should, as the
        rules require, be “freely given.”

Id. at 800 (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962))

(emphasis in Simmons).

¶24.    In denying the motion for leave to amend, the trial court found that Poindexter “cannot state a cause

of action against said defendant based upon the facts set forth in the complaint, together with all reasonable

inferences to be drawn therefrom, and that allowing amendment would be futile.” (emphasis added).

In its Final Judgment of Dismissal, the trial court explained its reasoning. Since the first complaint was

defeated on the 12(b)(6) motion, the court considered itself entitled to dismiss Southern United:

        Although Rule 12(b), MRCP provides that upon dismissal for failure to state a claim upon
        which relief can be granted, leave to amend shall be granted in accordance with Rule
        15(a), the grant of leave to amend under Rule 12 and Rule 15 is left to the trial judge’s
        sound discretion and leave to amend may be denied where it appears certain that plaintiff


                                                      8
        cannot state a claim showing that he is entitled to relief or that any amendment would be
        futile. [Citation to Simmons.]

¶25.    In his rejected first amended complaint, Poindexter alleges intentional infliction of emotional distress

(IIED) based on the following: (1) “outrageous conduct” in declining to pay his towing and storage charges;

(2) “economic coercion” in advising Poindexter he could take the settlement or leave it; and (3) a

combination of “outrageous conduct” and “economic coercion” in “making statements to, among others,

the towing and storage service” to the effect that Poindexter could sue if he liked but that “since [he] did

not have any money, he would not be able to hire an attorney for such a small claim.”

¶26.    On the merits, Poindexter’s claim appears futile. Rule 57(b)(2), which provides Poindexter with

his entire basis for proceeding against Southern United, applies only to issues of coverage, and an IIED

claim is not a coverage issue. However, we are not here concerned with the merits of Poindexter’s claim,

but with the narrow procedural question of whether the trial court abused its discretion in denying

Poindexter leave to amend his complaint. And our answer to that narrow question, based on the plain

language of Rule 15(a), must be that it did.

¶27.    The language of Rule 15(a), incorporating a deliberate addition to the text of the federal rule, states:



        On sustaining a motion to dismiss for failure to state a claim upon which relief can be
        granted, pursuant to Rule 12(b)(6), or for judgment on the pleadings, pursuant to Rule
        12(c), thirty days leave to amend shall be granted, provided matters outside the
        pleadings are not presented at the hearing on the motion.

Miss. R. Civ. P. 15(a) (emphasis added); see also Miss. R. Civ. P. 12(b) (on grant of Rule 12(b)(6)

motion, “leave to amend shall be granted in accordance with Rule 15(a)”); Sligh v. First Nat’l Bank

of Holmes County, 704 So. 2d 1020, 1024 (Miss. 1997) (“the court's dismissal of their complaint for




                                                      9
failure to state a claim for which relief can be granted afforded . . . an automatic right to amend within thirty

days”).

¶28.      Because leave to amend was mandatory, the trial court erred in determining that it had discretion

to evaluate the futility vel non of the amended complaint. Futility and Simmons are not relevant here,

because that case did not involve mandatory leave to amend after a Rule 12(b)(6) dismissal, and the

language involving futility was pertinent to the U.S. Supreme Court’s interpretation of the federal Rule 15

in Foman, not to our interpretation of the Mississippi-specific language about mandatory allowance of

amendment.

¶29.      This distinction between the federal and state language of Rule 15(a) was considered only briefly

by our Court of Appeals in its opinion on whether Rule 15(a), taken with Rule 12(b), “provide[s] an

automatic right to amend the complaint.” Jones v. Lovett, 755 So. 2d 1243, 1246-47 (Miss. Ct. App.

2000). We reproduce its discussion below:

          Specifically, Jones argues that the word “shall” in Rule 15 removes this particular type of
          amendment from the judges discretion in denying leave to amend the complaint. The United
          States Supreme Court discussed amendments to complaints in Foman v. Davis, 371
          U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962), stating:

                  Rule 15(a) declares that leave to amend “shall be freely given when justice
                  so requires”; this mandate is to be heeded . . . if the underlying facts or
                  circumstances relied upon by a plaintiff may be a proper subject of relief,
                  he ought to be afforded an opportunity to test his claim on the merits. In
                  the absence of any apparent or declared reason—such as undue delay,
                  bad faith or dilatory motive on the part of the movant, repeated failure to
                  cure deficiencies by amendments previously allowed, undue prejudice to
                  the opposing party by virtue of allowance of the amendment, futility of
                  the amendment, etc.—the leave sought should, as the rules require, be
                  “freely given.”

          Foman, 371 U.S. at 182, 83 S. Ct. 227. Although that case dealt specifically with the
          Federal Rules of Civil Procedure, the Mississippi Supreme Court cited the language with
          approval in Red Enter., Inc. v. Peashooter, Inc., 455 So. 2d 793, 795 (Miss. 1984).

                                                      10
Jones, 755 So. 2d at 1247 (emphasis added). This Court did indeed approve Foman’s above-quoted

language in Peashooter. However, in Peashooter, we were addressing only Mississippi Rule of Civil

Procedure 15(b), which uses the same “when justice so requires” standard as does the federal Rule 15(a).

Peashooter, 455 So. 2d at 795. Therefore, we were able to rely on the U.S. Supreme Court’s language

in Foman discussing the federal Rule 15(a). But that language simply does not apply when we turn to the

Mississippi-specific language of our Rule 15(a). Therefore, the Court of Appeals should not have applied

Foman and Peashooter to Rule 15(a), the plain language of which does indeed provide an “absolute

right to amend the complaint.”

¶30.    For us to hold otherwise would require us to disregard the plain language of Rules 12 and 15 in

favor of our own notions of judicial efficiency and expediency. This we are not prepared to do. See Van

Meter v. Alford, 774 So. 2d 430, 432 (Miss. 2000) (Waller, J.) (plain language of Rules should govern);

cf. McGriggs v. Montgomery, 710 So. 2d 886, 890 (Miss. Ct. App. 1998) (holding Rule 41(a)(1)(i)

“clear and unambiguous on its face and admit[ting] of no exceptions that call for the exercise of judicial

discretion by any court”). A grant of discretion to our trial courts would open up the prospect of future

litigation over what amendments are or are not “futile,” a word it may well be futile to define objectively.1

Unless and until the Mississippi Rules are altered, we prefer to exercise judicial restraint and to hold that

“shall” means “shall,” not “shall sometimes.” See, e.g., Ivy v. Harrington, 644 So. 2d 1218, 1221

(Miss. 1994):



        1
        The federal courts have equated “futile” with the Rule 12(b)(6) standard. See, e.g., Stripling
v. Jordan Prod. Co., 234 F.3d 863, 872-73 (5th Cir. 2000). Were we to do likewise, the consequence
would be to transform every post-12(b)(6) motion to amend under Rule 15(a) into a 12(b)(6) hearing on
the proposed amendment. The wisdom of this approach is not for us to decide today, given our plain-
language reading of our Rule 15(a).

                                                     11
          The operative word of § 93-9-21 is “shall.” A basic tenet of statutory construction
          constrains us to conclude that, unlike the discretionary nature of “may,” the word
          “shall” is a mandatory directive. As a consequence, in a proceeding to establish
          paternity, upon motion by either the plaintiff or defendant for an order requiring blood tests,
          the trial judge must grant the motion; no discretion is afforded the trial judge.

(emphasis added).

¶31.      We do note that the motion for leave to amend was actually made before the trial court dismissed

the first complaint. Whether it would have been proper for the trial court to first deny the motion to amend,

and only then to dismiss the original complaint, we need not decide on the facts before us.2 Here, the trial

court dismissed the claim stated in the original complaint, and only then went on to deny the motion to

amend. That was an abuse of discretion, and we therefore reverse on this issue.

          III.    HOLDING THAT HIS MOTION TO COMPEL DISCOVERY WAS
                  MOOT.

¶32.      Finally, Poindexter argues that because the trial court erred in granting Southern United’s motion

to dismiss, and denying his motion for leave to amend, it follows that the trial court erred in holding his

motion to compel discovery moot. Neither party has cited authority on this issue. However, it follows from

our reversal on issue II that the trial court, upon remand, should reconsider Poindexter’s motion on the

merits.

                                               CONCLUSION



          2
          It would be strange, admittedly, if a motion to amend could be denied five minutes before
dismissal, but was required to be granted five minutes after; parties would then be penalized for expediting
their pleadings. In the former instance, the trial court would be bound by the rule that leave to amend shall
be granted freely as justice requires. “In practice, an amendment should be denied only if the amendment
would cause actual prejudice to the opposite party.” Miss. R. Civ. P. 15 cmt. The mere fact that the
opposite party would be put to the trouble of moving to dismiss the amended complaint probably does not
rise to the level of “actual prejudice.” As we have stated, the language of Rule 15(a) is explicitly mandatory
and does not suggest any room for prudential considerations.


                                                       12
¶33.    The trial court did not err in dismissing Poindexter’s claim in his original complaint. However, it

did err in denying Poindexter’s motion for leave to amend and his motion to compel discovery. Therefore,

we affirm in part the judgment of the Lowndes County Circuit Court and reverse in part, remanding for

proceedings consistent with this opinion.

¶34.    AFFIRMED IN PART; REVERSED & REMANDED IN PART.

      PITTMAN, C.J., WALLER AND CARLSON, JJ., CONCUR. EASLEY AND
GRAVES, JJ., CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE
WRITTEN OPINION. WALLER, J., CONCURS WITH SEPARATE WRITTEN OPINION
JOINED BY SMITH, P.J., AND CARLSON, J. McRAE, P.J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY DIAZ, J. EASLEY, J., JOINS IN PART.
DIAZ, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION JOINED BY McRAE, P.J., EASLEY AND GRAVES, JJ.




        WALLER, JUSTICE, CONCURRING:

¶35.    I agree that the dismissal of the claims against Southern United Fire Insurance Company should be

affirmed. Furthermore, it is true M.R.C.P. 15(a) mandates that thirty days leave to amend be given if the

trial court grants a motion to dismiss for failure to state a claim upon which relief is granted pursuant to

M.R.C.P. 12(b)(6). Therefore, under a literal reading of M.R.C.P. 15(a), the denial of Poindexter's motion

to amend must be reversed.

¶36.    While I concur with the majority, I believe the better course is to temper M.R.C.P. 15(a)'s mandate

with the paramount concerns of logic, futility of amendment, and judicial economy. Because we should

follow this course, I believe it is now appropriate for this Court to amend M.R.C.P. 15(a) to allow trial




                                                    13
courts to use discretion in ruling on motions to amend. See Fed. R. Civ. P. 15(a).3 Here, Poindexter does

not propose an amendment that would allow him to proceed under Mississippi law.

¶37.    Under our law, an injured third party may not maintain any direct action against a tortfeasor's

insurance company. Westmoreland v. Raper, 511 So. 2d 884, 885 (Miss. 1987); Smith v. City of

West Point, 475 So. 2d 816, 819 (Miss. 1985). However, we have recognized that this line of cases was

modified4 by the adoption of Rule 57 of the Mississippi Rules of Civil Procedure, which provides that an

insurance company may be named as a party to an action for the purpose of seeking declaratory judgment

on the question of coverage. Jackson v. Daley, 739 So. 2d 1031, 1038 (Miss. 1999). In Jackson,

we affirmed a circuit court's ruling which allowed a plaintiff to add the defendant tortfeasor's insurer as a

defendant for declaratory judgment for the limited purpose of determining coverage, but we would not

allow the insurer to be named as a real party in interest. Id.

¶38.    Because there is no statutory authority allowing a third-party direct action against an insurance

company, M.R.C.P. 57's right of filing a declaratory judgment action against an insurer is a narrow


        3
         Fed. R. Civ. P. 15(a) provides as follows:

                (a) Amendments. A party may amend the party's pleading once as a matter of
        course at any time before a responsive pleading is served or, if the pleading is one to which
        no responsive pleading is permitted and the action has not been placed upon the trial
        calendar, the party may so amend it at any time within 20 days after it is served.
        Otherwise a party may amend the party's pleading only by leave of court or by written
        consent of the adverse party; and leave shall be freely given when justice so requires. A
        party shall plead in response to an amended pleading within the time remaining for
        response to the original pleading or within 10 days after service of the amended pleading,
        whichever period may be the longer, unless the court otherwise orders.
        4
        Actually, the Court at one point recognized that this line of cases was overruled, but this finding
was withdrawn after a motion for rehearing was filed. See State Farm Mut. Auto. Ins. Co. v. Eakins,
No. 96-CT-00034-SCT, 1998 WL 852920, *3 (Miss. Dec. 10, 1998), superceded on rehearing,
748 So. 2d 765 (Miss. 1999).

                                                     14
exception to the broader prohibition against an injured party maintaining a direct action against a tortfeasor's

insurer. This exception does not permit Poindexter to amend his complaint to add a claim of intentional

infliction of mental distress against Southern United. Here, no issue exists as to coverage because Southern

United has assumed the defense of Poindexter's claim against Fields, its insured, without asserting any issue

as to coverage.

         SMITH, P.J., AND CARLSON, J., JOIN THIS OPINION.



         McRAE, PRESIDING JUSTICE, DISSENTING:

¶39.     I agree with Justice Diaz who states that this action should be reversed and remanded for review

and a determination of coverage as provided for by Rule 57 of the Mississippi Rules of Civil Procedure,

which is a direct codification of this Court's ruling in Lewis v. Allstate Ins. Co., 730 So.2d 65 (Miss.

1998).

¶40.     After Lewis, M.R.C.P. 57 was amended to take care of situations such as this. It was to provide

a quick resolution to the issue of coverage through a declaratory judgment. The only way to expedite

determination of coverage in this situation is to follow the procedures of M.R.C.P. 57 and file suit seeking

declaratory judgment. Why should one have to go to trial to obtain a determination on the loss of use and

depreciation damages, when it can be determined up front?

¶41.     It is clear that Southern United is "deny[ing] or indicat[ing] that it may deny " coverage within the

meaning of M.R.C.P. 57. Southern United, in its brief, states that if and when Leo Poindexter obtains a final

judgment for these claims, then it will pay the judgment up to the limits of the policy issued to Field. But

presently, it is denying that the policy covers the loss of use of a vehicle when the vehicle is a total loss.

What is Southern United really doing? It is essentially denying coverage.



                                                      15
¶42.        Furthermore, it is more appropriate for a determination of coverage to be addressed in a

declaratory judgment proceeding rather than through liability litigation on the merits. This is what M.R.C.P.

57 was designed to do.

¶43.        For these reasons, I respectfully dissent.

            DIAZ, J., JOINS THIS OPINION. EASLEY, J., JOINS IN PART.



            DIAZ, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶44.        I agree that the trial court committed reversible error by refusing to allow Leo Poindexter an

opportunity to amend his complaint. However, I disagree with the majority’s affirmance of the trial court’s

dismissal of his declaratory judgment action. Accordingly, I respectfully dissent.

¶45.        Poindexter sustained property damage and economic loss as a result of the negligence of Elby L.

Fields. Fields is insured for such negligence by Southern United Fire Insurance Co., which denied

coverage for a substantial portion of Poindexter’s claim. As a consequence, Poindexter was entitled to join

Southern United as a defendant pursuant to M.R.C.P. 57(b)(2). According to that rule, Poindexter is

entitled to seek a declaratory judgment construing whether the insurance contract provides coverage for

his loss.

¶46.        Poindexter suffered a total loss of his vehicle. It has been sitting in storage, with fees accruing, since

June 30, 2000. He is unable to use it anymore and is in need of a new vehicle. If Fields is found to have

been the cause of Poindexter’s losses, then she will be also liable for these additional expenses. See

Vining v. Smith, 213 Miss. 850, 58 So. 2d 34 (1952) (holding that the loss of use of a motor vehicle,

and amounts necessarily expended in the hire of another vehicle, and the reasonable cost of preserving and

repairing injured motor vehicles are elements of damages which may be recovered). As her insurer,


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Southern United is contractually obligated to indemnify Fields for liabilities incurred which are covered

under their insurance agreement.

¶47.    As is its prerogative, Southern United disputed the amount of actual property damage sustained

by Poindexter and took the position that it is not responsible for the towing and storage charges or the loss

of use, thus denying coverage for these claims. Consequently, as is his statutorily-prescribed prerogative,

Poindexter joined Southern United as a defendant pursuant to M.R.C.P. 57(b)(2), which provides in

pertinent part as follows:

        Where an insurer has denied or indicated that it may deny that a contract covers a party’s
        claim against an insured, that party may seek a declaratory judgment construing the
        contract to cover the claim.

The Comment following Rule 57 states, in pertinent part:

                 Rule 57 (b) was amended in 2000 to authorize an injured party, where an insurer
        has indicated that it may deny coverage of the injured party’s claim, to seek a declaratory
        judgment establishing coverage. The traditional rule in Mississippi barred any type of
        direct action by an injured party against an insurer. (citations omitted). The amendment
        modifies the traditional rule in the interest of judicial economy by allowing a direct action
        for the limited purpose of a declaratory judgment.
                 Allowing the injured party to seek a declaration that the injured party’s claim is
        covered by the defendant’s policy may reduce litigation costs. First, it may avoid
        unnecessary litigation when the policy is the only asset that might satisfy the injured party’s
        claim, because a determination of non-coverage would avoid the need of trial of the claim
        against the insured. In addition, if the injured party brings the claim for declaratory
        judgment together with the claim against the insured, the rule may allow all of the issues
        growing out of an incident to be resolved in a single judgment.

¶48.    Southern United offered to settle this claim with Poindexter for less than the damages he incurred;

thereby essentially asserting that coverage did not exist for his additional damages. Following the

procedure outlined in Rule 57(b), Poindexter sought a declaratory judgment to determine the coverage

issue. In my opinion, this procedure is sound and promotes the economical resolution of cases. Southern

United has asserted in its brief that, if its insured is found negligent, and coverage is found to exist for these


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additional damages, then it will make Poindexter whole up to the limits of its policy with Fields. If it can

be determined, prior to a lengthy jury trial, that coverage does in fact exist for these damages, then this

determination should be made. It may cause Southern United to revisit settlement and thereby, in

conformity with the hopes of the commentators to Rule 57(b), avoid unnecessary litigation and waste of

judicial resources.

¶49.    In my opinion, the semantic argument urged by Southern United and accepted by the trial court and

the majority of this Court confuses the issue. It focuses on a distorted linguistic variation of what Southern

United is actually asserting. Southern United is not merely arguing over “the extent, amount and character

of damages which Poindexter is claiming,” rather, it is asserting that, regardless of how much it cost

Poindexter to store his vehicle or how much he was inconvenienced by not having the use of his vehicle,

it is not responsible for that damage because it is not a covered loss. In my opinion, that assertion is the

very purpose for which Rule 57(b) was amended, and Poindexter’s declaratory judgment action should

be allowed to proceed.

¶50.    I agree that the trial court committed reversible error by refusing to allow Poindexter an opportunity

to amend his complaint. However, I would also reverse the trial court’s decision to dismiss Southern

United from this action. Because it has denied responsibility/coverage for his claim, I would require

Southern United to defend Poindexter’s declaratory judgment action in accordance with the strictures of

M.R.C.P. 57(b)(2).

        McRAE, P.J., EASLEY AND GRAVES, JJ., JOIN THIS OPINION.




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