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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 817

## Text

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

i
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?

il
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

aL
a

ee ee 6 kha es ee

iV

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

SN

Vv

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

vi

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

eT

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,

2
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

3

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.

4

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

5

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

6

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

7

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

8

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.

9
REASONS FOR GRANTING THE WRIT

I.

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

10
(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.

11
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

12

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

14

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.

15
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

16

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

17
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).

18
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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26
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

Al

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
v.
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

A2

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

A3

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

A4

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

A5
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

A6

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

al

A7

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

A8

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

A9

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2191%3A1. Public record. Not legal advice.