Petition for Writ of Certiorari — Employers Insurance of Wausau v. Mississippi State Highway Commission

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IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

EMPLOYERS INSURANCE OF WAUSAU, A MUTUAL

COMPANY, AND

HOUSTON GENERAL INSURANCE COMPANY,

Petitioners,

VS.

MISSISSIPPI STATE HIGHWAY COMMISSION AND

DOES I THROUGH XX, INCLUSIVE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

MISSISSIPPI SUPREME COURT

* JACKSON HENDERSON ABLES, III

CURTIS E. COKER

111 East Capitol Street, Suite 600

Post Office Box 1084

Jackson, Mississippi 39215-1084

(601) 969-7607

Counsel for Petitioners

“Counsel of Record

June 3, 1991

QUESTIONS PRESENTED

3 Does a state supreme court deny a

plaintiff his constitutionally guaranteed access to the

courts by rendering a decision on issues not before it

and/or by mischaracterizing the plaintiffs’ complaint?

LIST OF PARTIES

The parties to the proceedings below were the

petitioners, Employers Insurance of Wausau, a Mutual

Company, and Houston General Insurance Company,

and the respondents Mississippi State Highway

Commission. Petitioner Employers Insurance of

Wausau, a Mutual Company, has no parent company

and no subsidiaries. Petitioner Houston General

Insurance Company is wholly owned by Houston

General Company, whose parent company is Tokyo Fire

& Marine, Ltd., of Tokyo, Japan. Petitioner Houston

General Insurance Company is owner of Traders and

General Insurance Company and Traders & Pacific

Insurance Company. Petitioner Houston General

Insurance Company also acts as attorney in fact for

Houston General Lloyds.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED ............

a ss te tt ee

ee ee 6 kha es ee

TABLE OF AUTHORITIES

Cases: Page

Allgood v. Allgood, 473 So. 2d 416

el ee ee en Ae ee oe 8 14

Atkins v. United States, 556 F.2d 1028

ae se Pe ee ere oe 24

Bounds v. Smith, 430 U.S. 817 (1977) ....... 11

Burnside v. Burnside, 228 Miss. 180 (1956) .... 14

California Motor Transport Co. v. Trucking

Unlimited, 404 U.S. 508 (1972) ....... 10

Chambers v. Baltimore and Ohio Railroad,

er eI AES iid An Me ces 9

C.1.G. Contractors v. Mississippi State

Building Commission, 399 So. 2d

eee ee 17, 19

Coastal Sales Marketing, Inc. v. Hunt,

ab caw axes se 8 oe 10

Crews v. Pertrosky, 509 F. Supp. 1199

SS, OSS, 6 Ade a @ 6 dca 10

Harris v. Pate, 440 F.2d 315

TR EA eee ee ee re 10

Hicks v. Thomas, 516 So. 2d 1344 (Miss. 1987) . 21

Johnson v. Black, 469 So. 2d 88

RP, 14

Keyes v. Guy Bailey Homes, Inc. ,

439 So. 2d 670 (Miss. 1983) ........ 21

Mayor and City Council of Columbus,

Mississippi v. Clark-Dietz and

Associate Engineers, Inc..,

550 F. Supp. 610 (N.D. Miss. 1982) .... 16

McCray v. Maryland, 456 F.2d 1 (4th Cir. 1972) 10

Mississippi State Building Commission v.

S & S Moving, Inc., 475 So. 2d

ee 19

Mississippi State Department of Public

Welfare v. Howie, 449 So. 2d

ep 19

Mitchum v. Purvis, 650 F.2d 647

ou le ag er 10, 11

Monroe Division, Litton Business

Systems v. DeBari, 562 F.2d 30

Es ee arr 23

NAACP v. Button, 371 U.S. 415 (1963) ...... 10

Pizzolato v. Perez, 524 F. Supp. 914

I a dy os os 10

PMZ Oil Co. v. Lucroy, 449 So. 2d 201

CE, Te a ae ec tics os 14

Robinson v. Ariyoshi, 441 F. Supp. 559

Rp ea eee 11

Rudolph v. Locke, 594 F.2d 1076

(Si GR Be Rn. oe win teen ss 11

Ryland v. Shapiro, 708 F.2d 967

(Sa GC a re ek eee ee 9, 10, 11

Sigafus v. Brown, 516 F.2d 105

Gi ee oe eee 11

Sims v. Etowah County Board of Education,

337 So. 2B Tone Gs BPP) ow ee 16

Thompson v. Madison County Board of Educ. ,

476 F.2d 676 (Sth Cir. 1973) ........ 23

Trustees of the First Baptist Church,

Corinth, Mississippi v. McElroy,

Zao OE, 17

Vines v. Crescent Transit Co.,

208 FE Se bn WRIe BR wees 16

Wilson v. Thompson, 593 F.2d 1375

CSG) Ge as ak ewes 9

Wolff v. McDonnell, 418 U.S. 539 (1974) ..... 10

Vil

J.F. Donnelly, A Treatise on the Law of

Public Contracts, § 158, 248-49 (1922) .. 19

Miss. Code Ann. § 11-7-20 (as amended 1976) .. 20

IN THE SUPREME COURT OF THE UNITED STATES

Octeher Term, 1991

EMPLOYERS INSURANCE OF WAUSAU, A MUTUAL

COMPANY, AND

HOUSTON GENERAL INSURANCE COMPANY,

Petitioners,

VS.

MISSISSIPPI STATE HIGHWAY COMMISSION AND

DOES I THROUGH XX, INCLUSIVE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

MISSISSIPPI SUPREME COURT

The petitioners Employers Insurance of Wausau

and Houston General Insurance Company respectfully

pray that a writ of certiorari issue to review the

judgment and opinion of the Mississippi Supreme Court,

entered in the above-entitled proceeding on March 6,

1991.

OPINIONS BELOW

The opinion of the Mississippi Supreme Court is

unreported but is reprinted in Appendix "A" hereto, p.

Al infra. The modified opinion of the Mississippi

Supreme Court is reported at 575 So. 2d 999 (Miss.

1990) but is reprinted in Appendix "B" hereto, p. A9,

infra.

The Opinion and Order of the Circuit Court of

Hinds County, Mississippi has not been reported. It is

reprinted in Appendix "C" hereto, p. A16, infra.

JURISDICTION

The petitioners invoke the jurisdiction of this

Honorable Court pursuant to 28 U.S.C. § 1257(3) and

Supreme Court Rule 10 from a final decision entered by

the Mississippi Supreme Court in which the Court ruled

on issues which had not been briefed to it by either of

the parties.

STATEMENT OF THE CASE

This action arose out of a contract between the

Mississippi State Highway Commission (hereinafter the

"Commission") as owner and Cook Construction

Company (hereinafter "Cook") as contractor to resurface

a portion of Interstate 55 located between Glukstadt,

Mississippi, and Highway 22 in Madison County,

Mississippi. Under the contract, the Commission wrote

and provided Cook with the plans and specifications for

a required pavement mixture to be applied to the

highway, and, in so doing, the Commission impliedly

warranted that a reasonably safe and suitable road

service would be achieved. Cook complied fully with

these plans and specifications; however, the resulting

road surface was unreasonably dangerous and slippery.

Due to this condition, three individuals, Kenneth

Sebren, Ivory Chambers and Alvin Russell Clark

(hereinafter "Assignors"), were injured seriously in

separate automobile accidents. These three men

assigned all of the.. rights of action in warranty against

the Commission to these petitioners, Employers

Insurance of Wausau (hereinafter “Wausau") and

Houston General Insurance Company (hereinafter

"Houston General").

On November 4, 1987, Wausau and Houston

General proceeded to file suit in the Circuit Court of the

First Judicial District of Hinds County, Mississippi,

against the Commission on the basis of the simple

breach of the warranty implied in the contract. On

December 2, 1987, the Commission filed a Motion for

Summary Judgment on two alternative grounds: (1) that

the suit was barred by the doctrine of sovereign

immunity from tort liability, and (2) that the suit was

barred because a provision of the contract had

specifically prevented any action by third-party

beneficiaries. On March 16, 1988, Wausau and

Houston General responded to this motion, contending

that the action was not barred on either prong for: (1)

it was not based upon the failure to perform a duty

created ex delicto but instead on the contractually

derived implied warranty, and (2) the contract provision

expressly permitted an action by a third party so the

extent allowed by law. On December 20, 1988, the trial

court entered an opinion and order granting the motion,

holding that the third-party beneficiary contract

provision did prohibit Wausau and Houston General’s

claims. In rendering this decision, the court specifically

commented that the plaintiffs’ claim of “whether implied

warranties expose state agencies to what would

otherwise be tort liability", an issue "of first impression

in this state", would not be reached.

An appeal was timely made to the Mississippi

Supreme Court from this order. The only issue

available to be briefed by the parties concerned whether

the third-party beneficiary contract provision did

foreclose the possibility of this suit; no mention was or

could be made of the issue of sovereign immunity.

Following submission of briefs and oral argument, a

decision was rendered by the Supreme Court on

December 19, 1990. In this opinion, the Court refused

to address the briefed issue concerning the trial court’s

handiing of the third-party beneficiary provision;

instead, the Court gratuitously construed that the

appellants’ simple warranty claims were "tortious" in

nature and therefore barred by the doctrine of sovereign

immunity. The Court went on to state that this basis

was "so clearcut" that there was no reason to even

remand the case to the trial court; however,

acknowledging that this "tort" immunity issue (which

was never addressed by the trial court sitting as trier of

fact) was never “directly addressed by the parties", the

Court "invited" the filing of a Petition for Rehearing to

discuss the relevance of sovereign immunity, upon

which the Court had already ruled peremptorily and

without benefit of any fact finding process by the trial

court.

On January 7, 1991, Wausau and Houston

General filed a Petition for Rehearing, fully outlining

their simple implied warranty contractual (not tortious

breach of warranty) theory of action and detailing to the

Mississippi Supreme Court why their theory could not

be defeated through a defense of sovereign immunity to

tort claims. In conclusion, Wausau and Houston

General expressed the opinion that it would be

unquestionably unjust to mischaracterize or to re-

characterize their claim in a manner inconsistent with

the pleadings and for the Court to decide the claims on

a basis not then before it. Despite this, on March 6,

1991, the Mississippi Supreme Court summarily denied

this Petition, refusing to either acknowledge the

contractual theory upon which this action was always

expressly based or to remand this action to the Circuit

Court of Hinds County, Mississippi, for a complete

proceedings and a hearing on it. Instead, the Court

merely removed the language inviting Wausau and

Houston General to file a Petition on this issue and re-

instated its previous opinion.

REASONS FOR GRANTING THE WRIT

Beyond doubt there exists a fundamental right of

access to the courts protected by the United States

Constitution. It is basic to our system of government

that the right to sue and defend in the courts must be

maintained. This right rests upon three independent

grounds. First, the United States Supreme Court has

viewed this right of access as "one of the privileges and

immunities accorded citizens under Article 4 of the

Constitution and the Fourteenth Amendment." Ryland

v. Shapiro, 708 F.2d 967, 971 (Sth Cir. 1983), citing

Chambers v. Baltimore and Ohio Railroad, 207 U.S.

142, 28 S.Ct. 34, 52 L.Ed. 143 (1907). The Court has

also recognized that “access to the courts is protected by

the First Amendment right to petition for redress of

grievances." Wilson v. Thompson, 593 F.2d 1375, 1387

(Sth Cir. 1979). See also, California Motor Transport

Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609,

30 L.Ed.2d 642 (1972); NAACP v. Button, 371 U.S.

415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Coastal Sales

Marketing, Inc. v. Hunt, 694 F.2d 1358 (Sth Cir. 1983):

McCray v. Maryland, 456 F.2d 1 (4th Cir. 1972);

Harris v. Pate, 440 F.2d 315 (7th Cir. 1971); Pizzolato

v. Perez, 524 F. Supp. 914 (E.D. La. 1981); Crews v.

Pertrosky, 509 F. Supp. 1199 (W.D. Pa. 1981). The

final basis of this right of access to the Courts is

"founded in the Due Process Clause and assures that no

person will be denied the opportunity to present to the

judiciary allegations concerning violations of

fundamental constitutional rights." Wolff v. McDonnell,

418 U.S. 539, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935

(1974). See also, Ryland, 708 F.2d at 972; Mitchum vy.

Purvis, 650 F.2d 647 (Sth Cir. 1981); Rudolph v.

Locke, 594 F.2d 1076 (Sth Cir. 1979).

The courts have maintained that the "mere

formal right of access to the courts does not pass

constitutional muster"; the access must be "adequate,

effective, and meaningful." Ryland, 708 F.2d at 972,

citing Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491,

1495, 52 L.Ed.2d 72 (1977). Interference with this

right of acces would give rise to a basis for relief. See

Ryland, id.; Sigafus v. Brown, 416 F.2d 105 (7th Cir.

1969). In this regard, at least one court has held that a

state supreme court decision could _ interfere

unconstitutionally with this right of access.

In the case of Robinson v. Ariyoshi, 441

F. Supp. 559 (D. Hawaii 1977), the United States

District Court for Hawaii dealt with a group of

individuals and companies who sought to enjoin the

enforcement of a decision of the Hawaii Supreme Court

that determined that all surplus water in the streams of

Hawaii was the property of the state. That decision had

been rendered sua sponte and had not been directly

related to the issues actually raised in the trial

proceedings. The parties had never briefed the issues

nor had they been given the opportunity to argue the

question before the Hawaii Supreme Court; however,

the Court had extended to them the invitation to petition

for a rehearing. After the filing of such a petition, the

Court summarily denied it and affirmed its earlier

opinion. In deciding to grant the injunctive relief sought

by the petitioners, the United States District Court held

that:

. . the effect of the judgment of the

Supreme Court was to deprive the

plaintiffs of their property, water and

water rights, without affording any of

them an opportunity to be heard in their

defense. The state court violated not

13 |

only its own rules, but the state law as

well, by deciding the case on issues that

were never raised or argued.

Thereafter on the almost farcical

"rehearing," although the due process

issues were urged by the plaintiffs, the

court refused to permit argument thereon

or consider the same. Rather, the court

extended a clearly pro forma invitation to

the plaintiffs to "prove to us why we

were wrong" on issues and conclusions

assumed sua sponte and decided sua

sponte by the court.

On this basis alone the judgment of the

court would have to be declared void, for

if permitted to remain in full force and

effect, plaintiffs have been deprived of

property rights without ever having had a

fair and meaningful opportunity to defend

against their being handed over to the

state on a silver platter without even a

request by the state for the gift.

441 F. Supp. at 580.

The facts involved in the Robinson case are

almost on all fours with the case presently before this

Court. Like the Hawaii Supreme Court, the Mississippi

Supreme Court has consistently held that it sits "as an

appellate court, not as triers of the facts ab initio."

Allgood v. Allgood, 473 So. 2d 416, 421 (Miss. 1985),

citing PMZ Oil Co. v. Lucroy, 449 So. 2d 201, 205

(Miss. 1984). See also Johnson v. Black, 469 So. 2d

88, 90 (Miss. 1985). The court has expressly held that

it has "no facilities for hearing proof on factual issues"

and “can determine the rights of the parties only on the

basis of the record." Burnside v. Burnside, 228 Miss.

180, 86 So. 2d 333, 334 (1956). Despite these express

pronouncements, the Mississippi Supreme Court in the

present case has gone beyond the record presented to it

and made findings of fact ab initio. In so doing what it

has held it cannot do, the Mississippi Supreme Court,

like the Hawaii Supreme Court, has violated the

constitutional requirements to provide the petitioners a

full and adequate hearing, even at the trial, level on

their claims.

Additionally, the Mississippi Supreme Court’s

invitation to the plaintiffs in the present case to petition

for a rehearing, like that in Robinson, was nothing more

than a tere formality. The court never allowed the

plaintiffs to reargue those issues and summarily denied

the petition without comment. This too is a clear

violation of the petitioners’ constitutional right of access

to the courts.

The petitioners have conceded throughout this

action that if their claims solely involved a tortious

breach of warranty then that action would be barred by

the doctrine of sovereign immunity. However, this

simply is not and never has been an expression of the

basis of their action; it does not arise out of negligence

or any other tort theory, but from the failure of the

Commission to perform its obligations under the

contract, thereby breaching its implied warranty which

ran with the contract. This is precisely the distinction

which was reached by the Alabama Supreme Court in

the case of Sims v. Etowah County Board of Education,

337 So. 2d 1310 (Ala. 1976), when it held:

It will be observed that a negligent

failure (emphasis added) to perform a

contract express or implied . . . is but a

breach of the contract. But if in

performing it, it is alleged that defendant

negligently caused personal injury or

property damage to plaintiff, the remedy

is in tort, for it is not the breach of a

contract express or implied, but the

breach of an implied duty to exercise due

care not to injure plaintiff . . . which is

the gravamen of the action... .

337 So. 2d at 1313; citing Vines v. Crescent Transit

Co., 264 Ala. 114, 119, 85 So. 2d 436 (1955).

It has been generally accepted in Mississippi that

a political subdivision may be charged with liability over

its defective plans and specifications on a contractual

implied warranty theory. This was clearly set forth in

the case of Mayor and City Council of Columbus,

eee ele

Mississippi v. Clark-Dietz and Associate Engineers,

Inc., 550 F. Supp. 610, 625 (N.D. Miss. 1982), in

which the court, relying on the opinion of Trustees of

the First Baptist Church, Corinth, Mississippi v.

McElroy, 223 Miss. 327, 334, 78 So. 2d 138, 141

(1955), stated:

The majority of the cases base it on an

implied warranty by the owner that the

plans and specifications are suitable for

the particular purpose coupied with an

absence of express warranty by the

contractor in regard at the sufficiency of

the plans and specifications.

It has further been held that "[t]here is no

mutuality or fairness where a state or county can enter

into an advantageous contract and accept its benefits but

refuse to perform its obligations." C./.G. Contractors

v. Mississippi State Building Commission, 399 So. 2d

1352 (Miss. 1981).

The implied warranty existing in_ public

contracts, such as the one which forms the centerpiece

of the present action, has long been acknowledged:

A warranty that ground is of a specially

stable character, or that it is free from

quicksand, or of the character referred to

in the plans and specifications, will, not

be implied in the absence of an express

stipulation that there is a warranty in

favor of the contractor, that the ground

selected should be of a defined character,

or unless an unavoidable implication to

that effect arises.

But positive assertions as to the nature of

the work belong to a different category.

Upon these a contractor has the right to

rely without independent investigations to

prove their falsity. While ordinarily a

contractor assumes subsidence of the soil

in the particular site upon which he is to

erect a structure, and assumes the

adequacy of existing systems of drainage

in such place where he is working, yet if

in the process of constructing a public

work such as a dry dock, the public body

by contract provision directs the

relocation of a sewer in such place and

provides the character, dimensions and

location of the sewer, the articles of the

contract prescribing these import a

warranty that if the specifications are

complied with the sewer will be

adequate, and this implied warranty will

not be overcome by general clauses

requiring the contractor to examine the

site, to check up the plans and to assume

responsibility for the work until

completion and acceptance.

J.F. Donnelly, A Treatise on the Law of Public

Contracts, § 158, 248-49 (1922).

The Mississippi Supreme Court has consistently

held that "when the legislature authorizes the State’s

entry into a contract, the State necessarily waives its

immunity from suit for breach of such a contract."

C.1.G. Contractors v. Mississippi State Building

Commission, 399 So. 2d 1352 (Miss. 1981); see also

Mississippi State Department of Public Welfare v.

Howie, 449 So. 2d 772 (Miss. 1984); Mississippi State

Building Commission v. S & S Moving, Inc., 475 So. 2d

159 (Miss. 1985). Despite this clear authority, the

Pesce

Mississippi Supreme Court in the present case has

chosen to ignore its own precedent in finding that the

petitioners’ breach of contract claims are barred by that

doctrine of sovereign immunity.

In this case an implied warranty derived from the

contract between the Commission and Cook that a

reasonably safe and suitable road surface would be

achieved if Cook followed the Commission’s plans and

specifications. Furthermore, because that warranty was

breached in Mississippi, Cook had (and pursued

successfully) a right of action against the Commission

for its own compensation, likewise founded solely in

contract. But privity of contract as a prerequisite for

filing an action based on the breach of a contract

provision is no longer required. Miss. Code Ann.

§ 11-7-20 (as amended 1976) unambiguously provides:

In all causes of action for personal

injury or property damage or economic

loss brought on account of negligence,

strict liability or breach of warranty,

including all actions brought under the

provisions of the Uniform Commercial

Code, privity shall not be a requirement

to maintain said action.

Use of the disjunctive manifests legislative

acknowledgement that negligence, strict liability and

warranty actions are not synonymous with one another

in any respect, yet they share the common abolition of

privity as a precondition to the bringing of an action for

damages. Further, the Mississippi Supreme Court has

made it abundantly clear that privity is not required in

any breach of warranty case, be that tortious or

contractual. In the case of Keyes v. Guy Bailey Homes,

Inc., 439 So. 2d 670, 673 (Miss. 1983), the court stated

unequivocally that a "plain reading of the statute clearly

suggests that it was the legislative intent to remove the

privity requirement in all cases." See also Hicks v.

Thomas, 516 So. 2d 1344, 1348 (Miss. 1987). If

privity has been abrogated absolutely, as consistently

held by Mississippi’s Court, then Assignors and any

other member of the public may maintain a cause of

action for breach of the implied warranty contained

within this contract. If the Assignors may maintain such

an action, then petitioners’ access to the courts of

Mississippi have been withheld wrongly.

It is unconscionable that the Commission might

evade its contractual liability through its own, let alone

a judicial re-characterization of the petitioners’ claims as

sounding in tort, and a so-called "clear-cut" finding that

this action is barred by the doctrine of sovereign

immunity. This was not the case when the action rested

in the trial court; the undue re-characterization process

did not begin until this case reached the Mississippi

Supreme Court. And that Court’s finding that this

action is barred by sovereign immunity does not rest

upon either law or fact, but footless whimsy.

There has never been a full, adequate, and fair

hearing on the plaintiffs’ claims in this case.

Fundamental due process mandates “that a judicial

proceeding afford the affected parties an opportunity to

be heard on the allegations asserted in the complaint and

to present evidence and argument on the contested facts

and legal issues framed by the answer to the complaint."

Thompson v. Madison County Board of Education, 476

F.2d 676, 678 (Sth Cir. 1973). See also, Monroe

Division, Litton Business Systems v. DeBari, 562 F.2d

30, 33 (10th Cir. 1977). In the present case it is clear

that the petitioners never were afforded that basic

opportunity to be heard and to have their claims

properly litigated on the issued framed by their

complaint. These petitioners have no other route to take

than to appeal to this Honorable Court to correct the

constitutional violations directed against them by the

Mississippi Supreme Court. If the Mississippi courts’

action is allowed to stand unchallenged, it will be at

liberty to open any record or write a new one at its

pleasure. To refuse to hear and decide these claims is

an exercise of power no court can justly claim to hold.

The doors of the courts will be closed to petitioners

forever and due process will be denied them if this

petition is not granted. Arkins v. United States, 556

F.2d 1028, 1040 (Ct. Cl. 1977). Therefore

consideration of this matter by this Court is essential.

CONCLUSION

For these various reasons, this petition for

certiorari should be granted. Petitioners would

emphasize thai this is the only forum and opportunity

open to them to seek redress of the violations of their

constitutional rights by the Mississippi Supreme Court.

If the petitioners are correct in urging that the

Mississippi Supreme Court acted in violation of the

petitioners’ constitutional rights of access to the courts,

the matter should be remanded to the Mississippi

Supreme Court for appropriate disposition in conformity

with any ruling from this Court and in compliance with

the United States Constitution, which may include,

without limitation, ultimate remand to the trial court for

consideration and resolution of any issues not rendered

moot by the Mississippi Supreme Court’s review of the

issue first appealed from the Circuit Court of Hinds

County.

Respectfully submitted,

JACKSON HENDERSON ABLES, III

CURTIS E. COKER

Counsel for Petitioners

OF COUNSEL

DANIEL COKER HORTON AND BELL, P.A.

111 EAST CAPITOL STREET, SUITE 600

POST OFFICE BOX 1084

JACKSON, MISSISSIPPI 39215-1084

(601) 969-7607

June 3, 1991

APPENDIX

APPENDIX "A"

IN THE SUPREME COURT OF MISSISSIPPI

NO. 89-CA-0667

EMPLOYERS INSURANCE OF WAUSAU,

A MUTUAL COMPANY, AND HOUSTON

GENERAL INSURANCE COMPANY

MISSISSIPPI STATE HIGHWAY COMMISSION

AND DOES I THROUGH XX, INCLUSIVE

BEFORE HAWKINS, P.J., SULLIVAN AND

BLASS, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE

COURT:

Employers Insurance of Wausau, a Wisconsin-

based insurance corporation (Wausau), and Houston

General Insurance Company, a Texas-based insurance

corporation (Houston), appeal from a summary

judgment dismissal of their complaint against the

Mississippi State Highway Commission (Commission) in

which as assignees of iniured »arties they sued the

Commission for breach of its implied warranty that

Commission’s plans and specifications to a contract for

resurfacing would provide a reasonably safe highway.

The circuit judge found there was no contractual liability

for such injury. We find that the Commission, as an

agency of the sovereign state, is immune from such

liability and affirm.

FACTS

The Commission on December 8, 1982,

contracted with Cook Construction Company (Cook) to

resurface a portion of Interstate 55 from Glukstadt to

Highway 22 in Madison County. The contract required

Cook to apply a pavement mixture designed and

manufactured in accordance with plans and

specifications provided by the Commission.

Cook followed the plans and specifications of the

Commission in manufacturing the pavement mixture, but

the mixture was defective, resulting in an unreasonably

slick highway. Due to this condition, three different

automobiles on three different occasions had accidents

Causing severe injuries to three individuals.

On June 11, 1985, Cook filed a suit against the

Commission in the use court of the First Judicial

District of Hinds County for defective plans and

specifications furnished it by the Commission. This

action was later settled.

Kenneth Sebren was injured on July 13, and

thereafter Ivory Chambers was injured August 10, and

Alvin Russell Clark injured September 16, 1983, all

from automobile accidents on the portion of the highway

etl

which had been resurfaced. Each of them either filed a

suit against Cook, or made demand on Cook for

personal injury damages. Cook’s liability insurance

carriers reached compromise settlements with these

individuals and their wives, and were assigned their

respective claims against the Commission.

On April 3, i986, Kenneth R. Sebren and his

wife Harriet in consideration of $55,000 to himself,

$75,000 to Harriet, and $20,000 to Lumberman’s

Underwriting Alliance to reimburse that company for

worker’s compensation benefits, all paid by Wausau and

Houston, executed a complete release of Cook and its

carriers, and assigned all rights they had against the

Commission to Wausau and Houston. On March 26,

1986, Alvin Russell Clark and his wife executed the

same type of document for $20,000. Also, on

March 27, 1986, Ivory Chambers and his wife Louella

for $188,904.37 being paid to him, and $11,095.63

being paid to New Hampshire Insurance Company as

reimbursement for worker’s compensation benefits,

executed the same type of document to Wausau and

Houston.

Wausau and Houston filed a complaint against

the Commission in the circuit court of the First Judicial

District of Hinds County. The complaint charged that

Cook was contractually obligated to apply a mixture for

resurfacing designed and manufactured in accordance

with the plans and specifications provided Cook by the

Commission. The complaint further alleged that there

was aS a matter of law an implied warranty by the

Commission that if Cook followed this recipe a

reasonably safe, suitable road surface would result.

Cook complied, followed the Commission’s recipe,

which resulted in a hazardous, dangerous surface. The

complaint further alleged that Sebren, Clark and

Chambers suffered severe personal injuries as a result of

this slick, defective highway, and finally that as

assignees of these individuals the plaintiffs were entitled

to $600,000 damages for injuries to Chambers,

$450,000 damages for injuries to Sebren, and $60,000

damages for injuries to Clark.

On December 2, 1987, the Commission filed a

motion for summary judgment and dismissal of the

action. The motion first alleged that plaintiffs sought

damages as indemnees of Cook, but there was no

showing that Cook had paid any sum as a result of the

negligence of the Commission. Secondly, the motion

raised the defense of sovereign immunity.

The plaintiffs responded that their claim was not

one for indemnity but on behalf of the persons protected

under the implied warranty of the Commission to

furnish plans and specifications providing for a

reasonably safe surface on the highway.

The circuit judge sustained the motion by order

dated December 20, 1988, which provided in pertinent

part:

The precise issue of sovereign

immunity put by this case, where implied

warranties expose state agencies to what

would otherwise be tort liability, is one

of first impression in this state. That

issue need not be reached, however,

because this court concludes that this

action is barred by the terms of the

contract on which it is _ based.

Incorporated into this contract is a

provision which provides as follows:

107.15 - Third Party

Beneficiary Clause:

It is not intended by any

of the provisions of any

part of the contract to

create the public or any

member thereof a third

party beneficiary

hereunder, or to authorize

anyone not a party to this

contract to maintain a suit

for personal injuries or

property damage pursuant

to the terms or provisions

of this contract. The

duties, obligations and

responsibilities of the

parties to this contract

with respect to third

parties shall remain as

imposed by law.

This provision is clear and

unambiguous and bars this action.

Accordingly, it is hereby,

Ordered, that the Motion for Summary

Judgment filed on behalf of the defendant

Mississippi State Highway Commission

be and the same is hereby GRANTED.

LAW

Wausau and Houston have appealed, alleging the

contract was ambiguous, citing another section, and

contending that summary judgment was improper. We

decline to reach the contract provisions, however,

because this suit is not based upon any specific contract

provisions, but an implied warranty arising from the

contract to furnish plans and specifications to Cook

providing for a reasonably safe and suitable highway.

Under that theory, any claim for damages by Wausau

and Houston as assignees of these individuals must be in

tort, and for this reason the doctrine of sovereign

immunity applies.

We first note that Wausau and Houston make no

claim that the Commission, as an agency of the State of

Mississippi, does not possess all the attributes of state

sovereign immunity. They simply argue that sovereign

immunity does not apply to the Commission’s implied

warranty to furnish reliable plans and specifications to

Cook. We also note that they make no claim as

indemnees of Cook. We therefore have no occasion to

address whether there would be liability on the part of

the Commission if it did not enjoy sovereign immunity

but were instead a private person, or what rights Cook

Al0

might have asserted, or perhaps did assert in its cause

against the Commission.

In Engle Acoustic & Tile, Inc. v. Grenfell, 223

So. 2d 613 (Miss. 1969), a subcontractor sued the

project architect for damages caused by his faiiure to

carry out his contractual duties. We noted that the

coniract was between the architect and owner, and "that

one not a party to a contract can sue for a breach

thereof only when the condition which is alleged to have

been broken was placed in the contract for his direct

benefit. A mere incidental beneficiary acquires by

virtue of the contractual obligation no right against the

promisor or the promisee." /d. at 620.

A Florida case, A. R. Moyer, Inc. v. Graham,

285 So. 2d 397, 400-401 (Fla. 1973), extended the

liability of an architect beyond the owner for negligently

defective plans and specifications, based, however, upon

All

tort liability, thereby abolishing privity in a negligence

claim. Mac Pherson v. Buick Motor Co., 217 N.Y.

382, 111 N.E. 1050 (1916).

To like effect is Shoffner Industries, Inc. v. W.

B. Lloyd Construction Co., 42 N.C. App. 259, 257

S.E.2d 50, (1979), where the North Carolina Court of

Ae nes ahee fa Le

Appeals in rejecting an architect’s defense of privity in

a suit by a contract for negligently defective plans,

Stated:

| We think, however, that the expansion of

liability to third parties now establishes

the proposition that a contractor hired by

the client to construct a_ building,

although not in privity with the architect,

may recover from the architect any extra

costs resulting from the architect’s

negligence. To hold otherwise would

require that we ignore the modern

concepts of tort liability, first established

by Mac Pherson v. Buick Motor Co. , 217

N.Y. 382, 111 N.E. 1050 (1916). We

cannot ignore the half century of

development in_ negligence law

originating in Mac Pherson ...

ell

Al2

42 N.C. App. at 265-266, 254 S.E.2d at 55.

In Mayor & City Council, etc. v. Clark-Dietz,

etc., 550 F. Supp. 610, 624 (N.D. Miss. 1982), a case

cited as authority by Wausau and Houston in their brief,

the United States District Court cited the above

authorities, and quoted from W. Prosser, Handbook of

the Law of Torts, § 93, p. 622 (4th ed. 1971):

By entering into a contract with A, the

defendant may place himself in such a

relationship toward B that the law will

impose upon him an obligation, sounding

in tort and not in contract, to act in such

a way that B will not be injured. The

incidental fact of the existence of the

contract with A does not negative the

responsibility of the actor when he enters

a course of affirmative conduct which

may be expected to affect the interests of

another person. (Emphasis added)

In addition, as Mayor & City Council, supra,

notes, the owner as a matter of law has an implied

warranty with the contractor with whom he contracts

that the plans and specifications furnished the contractor

Nea SR hte Ls ACA IF dae Tears a lg OS pa

aii sins Te eal

Al3

- not defective. 55 F. Supp. at 625. The owner and

contractor are in privity, however, and any failure by

the owner to furnish adequate plans and specifications to

the contractor imposes a contractual as well as tort

liability in favor of the contractor upon the owner.

Trustees of First Baptist Church v. McElroy, 223 Miss.

327, 334, 78 So. 2d 138, 141 (1955).

It is thus clear that if any liability were to be

imposed upon the Commission for injuries to these

parties, it would have to be premised upon a tort

liability arising from negligently defective plans and

specifications, but not upon any contractual obligation to

them. Wausau and Houston ignore this distinction.

The Commission is immune from all suits for

negligence on the part of its employees unless by

legislative enactment sovereign immunity has been

waived. Pruett v. City of Rosedale, 421 So. 2d 1046

Al4

(Miss. 1982); Miss. Code Ann. § 11-46-1, et. seq.

(Supp. 1990).

In Strait v. Pat Harrison Waterway Dist., 523

So. 2d 36 (Miss. 1988), we held that no political

subdivision or agency of the state can be sued in the

absence of a clear and unambiguous statute waiving

sovereign immunity. In that case a district waterway,

pursuant to a statute authorizing it to do so, Miss. Code

Ann. § 51-15-120 (Supp. 1990), procured liability

insurance, the premium for which was paid by public

funds. Thereafter, an injured patron sued to recover to

the extent of the policy coverage. We held, in what

must surely have appeared somewhat anomalous to the

injured plaintiff and his counsel, that the Legislature, by

the language of § 51-15-120 without more, had not

intended to waive sovereign immunity. Thus has this

Court jealously, if not indeed zealously, thrown the

Al5

protective blanket of sovereign immunity to all activities

of the state, its agencies and political subdivisions in the

absence of a clearcut unequivocal statute waiving it.

Because this is a claim against the Commission

in tort, the dismissal must be affirmed.

In fairness to Wausau and Houston, it should be

noted that because the dismissal by the circuit judge was

based upon an interpretation of the Commission’s and

Cook’s contract, the issue of sovereign immunity on

appeal has not been directly addressed by the parties.

We find the answer so clearcut, however, that we see no

reason to remand for the circuit judge to consider this

question. The appellants will not be deprived of the

opportunity to convince us otherwise in a petition for

rehearing.

Al6

AFFIRMED.

ROY NOBLE LEE, C.J., DAN LEE,

P.J., PRATHER, ROBERTSON, SULLIVAN,

ANDERSON AND BLASS, JJ., CONCUR.

PITTMAN, J., NOT PARTICIPATING.

sities

Al7

APPENDIX

APPENDIX "B"

IN THE SUPREME COURT OF MISSISSIPPI

NO. 89-CA-0667

EMPLOYERS INSURANCE OF WAUSAU,

A MUTUAL COMPANY, AND HOUSTON

GENERAL INSURANCE COMPANY

Vv.

MISSISSIPPI STATE HIGHWAY COMMISSION

AND DOES I THROUGH XX, INCLUSIVE

BEFORE HAWKINS, P.J., SULLIVAN AND

BLASS, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE

COURT:

Employers Insurance of Wausau, a Wisconsin-

based insurance corporation (Wausau), and Houston

General Insurance Company, a Texas-based insurance

Al8

corporation (Houston), appeal from a summary

judgment dismissal of their complaint against the

Mississippi State Highway Commission (Commission) in

which as assignees of injured parties they sued the

Commission for breach of its implied warranty that

Commission’s plans and specifications to a contract for

resurfacing would provide a reasonably safe highway.

The circuit joes found there was no contractual liability

for such injury. We find that the Commission, as an

agency of the sovereign state, is immune from such

liability and affirm.

FACTS

The Commission on December 8, 1982,

contracted with Cook Construction Company (Cook) to

resurface a portion of Interstate 55 from Glukstadt to

Highway 22 in Madison County. The contract required

Cook to apply a pavement mixture designed and

Al9

manufactured in accordance with plans and

specifications provided by the Commission.

Cook followed the plans and specifications of the

Commission in manufacturing the pavement mixture, but

the mixture was defective, resulting in an unreasonably

slick highway. Due to this condition, three different

automobiles on three different occasions had accidents

causing severe injuries to three individuals.

On June 11, 1985, Cook filed a suit against the

Commission in the chancery court of the First Judicial

District of Hinds County for defective plans and

specifications furnished it by the Commission. This

action was later settled.

Kenneth Sebren was injured on July 13, and

thereafter Ivory Chambers was injured August 10, and

Alvin Russell Clark injured September 16, 1983, all

from automobile accidents on the portion of the highway

A20

which had been resurfaced. Each of them either filed a

suit against Cook, or made demand on Cook for

personal injury damages. Cook’s liability insurance

carriers reached compromise settlements with these

individuals and their wives, and were assigned their

respective claims against the Commission.

On April 3, 1986, Kenneth R. Sebren and his

wife Harriet in consideration of $55,000 to himself,

$75,000 to Harriet, and $20,000 to Lumberman’s

Underwriting Alliance to reimburse that company for

worker’s compensation benefits, all paid by Wausau and

Houston, executed a complete release of Cook and its

carriers, and assigned all rights they had against the

Commission to Wausau and Houston. On March 26,

1986, Alvin Russell Clark and his wife executed the

same type of document for $20,000. Also, on

March 27, 1986, Ivory Chambers and his wife Louella

A21

for $188,904.37 being paid to him, and $11,095.63

being paid to New Hampshire Insurance Company as

reimbursement for worker’s compensation benefits,

executed the same type of document to Wausau and

Houston.

Wausau and Houston filed a complaint against

the Commission in the circuit court of the First Judicial

District of Hinds County. The complaint charged that

Cook was contractually obligated to apply a mixture for

resurfacing designed and manufactured in accordance

with the plans and specifications provided Cook by the

Commission. The complaint further alleged that there

was aS a matter of law an implied warrant, by the

Commission that if Cook followed this recipe a

reasonably safe, suitable road surface would result.

Cook complied, followed the Commission’s recipe,

which resulted in a hazardous, dangerous surface. The

A22

complaint further alleged that Sebren, Clark and

Chambers suffered severe personal injuries as a result of

this slick, defective highway, and finally that as

assignees of these individuals the plaintiffs were entitled

to $600,000 damages for injuries to Chambers,

$450,000 damages for injuries to Sebren, and $60,000

damages for injuries to Clark.

On December 2, 1987, the Commission filed a

motion for summary judgment and dismissal of the

action. The motion first alleged that plaintiffs sought

damages as indemnees of Cook, but there was no

showing that Cook had paid any sum as a result of the

negligence of the Commission. Secondly, the motion

raised the defense of sovereign immunity.

The plaintiffs responded that their claim was not

one for indemnity but on behalf of the persons protected

under the implied warranty of the Commission to

A23

furnish plans and specifications providing for a

reasonably safe surface on the highway.

The circuit judge sustained the motion by order

dated December 20, 1988, which provided in pertinent

~ part:

The precise issue of sovereign

immunity put by this case, where implied

warranties expose state agencies to what

would otherwise be tort liability, is one

of first impression in this state. That

issue need not be reached, however,

because this court concludes that this

action is barred by the terms of the

contract on which it is _ based.

Incorporated into this contract is a

provision which provides as follows:

107.15 - Third Party

Beneficiary Clause:

It is not intended by any

of the provisions of any

part of the contract to

create the public or any

member thereof a third

party beneficiary

hereunder, or to authorize

anyone not a party to this

contract to maintain a suit

A24

for personal injuries or

property damage pursuant

to the terms or provisions

of this contract. The

duties, obligations and

responsibilities of the

parties to this contract

with respect to third

parties shall remain as

imposed by law.

This provision is clear and

unambiguous and bars this action.

Accordingly, it is hereby,

Ordered, that the Motion for Summary

Judgment filed on behalf of the defendant

Mississippi State Highway Commission

be and the same is hereby GRANTED.

LAW

Wausau and Houston have appealed, alleging the

contract was ambiguous, citing another section, and

contending that summary judgment was improper. We

decline to reach the contract provisions, however,

because this suit is not based upon any specific contract

provisions, but an implied warranty arising from the

A25

contract to furnish plans and specifications to Cook

providing for a reasonably safe and suitable highway.

Under that theory, any claim for damages by Wausau

and Houston as assignees of these individuals must be in

tort, and for this reason the doctrine of sovereign

immunity applies.

We first note that Wausau and Houston make no

claim that the Commission, as an agency of the State of

Mississippi, does not possess all the attributes of state

sovereign immunity. They simply argue that sovereign

immunity does not apply to the Commission’s implied

warranty to furnish reliable plans and specifications to

Cook. We also note that they make no claim as

indemnees of Cook. We therefore have no occasion to

address whether there would be liability on the part of

the Commission if it did not enjoy sovereign immunity

but were instead a private person, or what rights Cook

} A26

might have asserted, or perhaps did assert in its cause

against the Commission.

In Engle Acoustic & Tile, Inc. v. Grenfell, 223

So. 2d 613 (Miss. 1969), a subcontractor sued the

project architect for damages caused by his failure to

carry out his contractual duties. We noted that the

contract was between the architect and owner, and "that

one not a party to a contract can sue for a breach

thereof only when the condition which is alleged to have

been broken was placed in the contract for his direct

benefit. A mere incidental beneficiary acquires by

virtue of the contractual obligation no right against the

promisor or the promisee." Id. at 620.

A Florida case, A. R. Moyer, Inc. v. Graham,

285 So. 2d 397, 400-401 (Fla. 1973), extended the

liability of an architect beyond the owner for negligently

defective plans and specifications, based, however, upon

in we Rete

A27

tort liability, thereby abolishing privity in a negligence

claim. Mac Pherson v. Buick Motor Co., 217 N.Y.

382, 111 N.E. 1050 (1916).

To like effect is Shoffner Industries, Inc. v. W.

B. Lloyd Construction Co., 42 N.C. App. 259, 257

S.E.2d 50, (1979), where the North Carolina Court of

Appeals in rejecting an architect’s defense of privity in

a suit by a contract for negligently defective plans,

Stated:

We think, however, that the expansion of

liability to third parties now establishes

the proposition that a contractor hired by

the client to construct a_ building,

although not in privity with the architect,

may recover from the architect any extra

costs resulting from the architect’s

negligence. To hold otherwise would

require that we ignore the modern

concepts of tort liability, first established

by Mac Pherson v. Buick Motor Co., 217

N.Y. 382, 111 N.E. 1050 (1916). We

cannot ignore the half century of

development in negligence law

Originating in Mac Pherson .. .

A28

42 N.C. App. at 265-266, 254 S.E.2d at 55.

In Mayor & City Council, etc. v. Clark-Dietz,

etc., 550 F. Supp. 610, 624 (N.D. Miss. 1982), a case

cited as authority by Wausau and Houston in their brief,

the United States District Court cited the above

authorities, and quoted from W. Prosser, Handbook of

the Law of Torts, § 93, p. 622 (4th ed. 1971):

By entering into a contract with A, the

defendant may place himself in such a

relationship toward B that the law will

impose upon him an obligation, sounding

in tort and not in contract, to act in such

a way that B will not be injured. The

incidental fact of the existence of the

contract with A does not negative the

responsibility of the actor when he enters

a course of affirmative conduct which

may be expected to affect the interests of

another person. (Emphasis added)

In addition, as Mayor & City Council, supra,

notes, the owner as a matter of law has an implied

warranty with the contractor with whom he contracts

that the plans and specifications furnished the contractor

A29

are not defective. 55 F. Supp. at 625. The owner and

contractor are in privity, however, and any failure by

the owner to furnish adequate plans and specifications to

the contractor imposes a contractual as well as tort

liability in favor of the contractor upon the owner.

Trustees of First Baptist Church v. McElroy, 223 Miss.

327, 334, 78 So. 2d 138, 141 (1955).

It is thus clear that if any liability were to be

imposed upon the Commission for injuries to these

parties, it would have to be premised upon a tort

liability arising from negligently defective plans and

specifications, but not upon any contractual obligation to |

them. Wausau and Houston ignore this distinction.

The Commission is immune from all suits for

negligence on the part of its employees unless by

legislative enactment sovereign immunity has been

waived. Pruett v. City of Rosedale, 421 So. 2d 1046

A30

(Miss. 1982); Miss. Code Ann. § 11-46-1, et. seq.

(Supp. 1990).

In Strait v. Pat Harrison Waterway Dist., 523

So. 2d 36 (Miss. 1988), we held that no political

subdivision or agency of the state can be sued in the

absence of a clear and unambiguous statute waiving

sovereign immunity. In that case a district waterway,

pursuant to a statute authorizing it to do so, Miss. Code

Ann. § 51-15-120 (Supp. 1990), procured liability

insurance, the premium for which was paid by public

funds. Thereafter, an injured patron sued to recover to

the extent of the policy coverage. We held, in what

must surely have appeared somewhat anomalous to the

injured plaintiff and his counsel, that the Legislature, by

the language of § 51-15-120 without more, had not

intended to waive sovereign immunity. Thus has this

Court jealously, if not indeed zealously, thrown the

ere es

A31

protective blanket of sovereign immunity to all activities

of the state, its agencies and political subdivisions in the

absence of a clearcut unequivocal statute waiving it.

Because this is a claim against the Commission

in tort, the dismissal must be affirmed.

AFFIRMED.

ROY NOBLE LEE, C.J., DAN LEE,

P.J., PRATHER, ROBERTSON, SULLIVAN,

ANDERSON AND BLASS, JJ., CONCUR.

PITTMAN, J., NOT PARTICIPATING.

A32

APPENDIX

APPENDIX "C"

IN THE CIRCUIT COURT

OF THE FIRST JUDICIAL DISTRICT

OF HINDS COUNTY, MISSISSIPPI

EMPLOYERS INSURANCE OF WAUSAU,

A MUTUAL COMPANY; AND HOUSTON

GENERAL INSURANCE COMPANY PLAINTIFFS

VS. NO. 35,589

MISSISSIPPI STATE HIGHWAY

COMMISSION, AND DOES I

THROUGH XX, INCLUSIVE DEFENDANTS

OPINION AND ORDER

This matter is before the court on defendant

Mississippi State Highway Commission’s (the

"Commission") Motion for Summary Judgment and

Dismissal. The Commission contends that this action is

A33

barred by the doctrine of sovereign immunity and res

adjudicata, that plaintiffs lack standing and that the

terms of the contract upon which plaintiffs base their

action bars recovery.

Plaintiffs in this case are insurance companies

and assignees of claims brought against their insured, a

construction company which contracted with the

Commission to construct a highway. Plaintiffs assignors

were all injured as a result of accidents caused by what

plaintiffs allege to be faulty asphalt specifications

supplied by defendants to plaintiffs’ insured. The

injured parties brought actions against plaintiffs’ insured

in the Chancery Court of Hinds County and, pursuant to

a compromise settlement, plaintiffs were assigned the

rights of the injured parties. Plaintiffs, as assignees,

now bring this action alleging a breach of implied

warranty, contending that defendant Commission

A34

impliedly warranted, as a matter of law, that a

reasonably safe, suitable road surface would be achieved

by following the specifications supplied by it.

The precise issue of sovereign immunity put by

this case, istics implied warranties expose state

agencies to what would otherwise be tort liability, is one

of first impression in this state. That issue need not be

reached, however, because this court concluded that this

action is barred by the terms of the contract on which it

is based. Incorporated into this contract is a provision

which provides as tuilows:

107.15 - Third Party Beneficiary

Clause:

It is not intended by any of the provisions

of any part of the contract to create the

public or any member thereof a third

party beneficiary hereunder, or to

authorize anyone not a party to this

contract to maintain a suit for personal

injuries or property damage pursuant to

the terms or provisions of this contract.

The duties, obligations and

‘

ee ee Oa, ea ee me

A35

responsibilities of the parties to this

contract with respect to third parties shall

remain as imposed by law.

This provision is clear and unambiguous and bars

this action. Accordingly, it is hereby,

Ordered, that the Motion for Summary Judgment

filed on behalf of the defendant Mississippi State

Highway Commission be and the same is hereby

GRANTED.

Ordered this 20th day of December, 1988.

/s/ Fred L. Banks, Jr.

Circuit Judge

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