¶ 1. The issue in this appeal is whether a motion to award attorney's fees following entry of judgment constitutes a motion under Rule 59(e) of the Mississippi Rules of Civil Procedure. Finding reversible error, we remand this case for further consideration by the Yazoo County Circuit Court.
¶ 2. On April 21, 2007, Robert Michael Fulton was injured when he was struck by an automobile driven by Lofton Eugene ("Gene") Pigg Jr. Fulton and Pigg were at the Little Yazoo Dirt Race Track. Pigg lost control of his automobile as he drove through the spectator section. Pigg was intoxicated at the time of the accident and had no automobile insurance.
¶ 3. Fulton submitted a claim for uninsured-motorist benefits to his automobile-insurance carrier, Mississippi Farm Bureau Casualty Insurance Company. Farm Bureau did not immediately pay the benefits. After Fulton filed a complaint against Farm Bureau, Farm Bureau paid Fulton $25,502.50 of his $50,500 in total available uninsured-motorist benefits.
¶ 4. Fulton asserted claims against Farm Bureau for breach of contractual duty to pay insurance proceeds; gross negligence in breaching a duty to investigate, process, and pay Fulton's claim; and bad-faith refusal to pay on the grounds that Farm Bureau had no arguable justifiable basis to delay payment. Farm Bureau filed a third-party complaint against Pigg.
¶ 5. After a trial, the jury found Pigg at fault for the collision and found no fault on the part of the race track. The circuit judge entered a final judgment, agreed as to form by the attorneys, that the jury verdict: (a) awarded Fulton compensatory damages in the amount of $24,497.50, which was the remainder of his uninsured-motorist-policy limit; (b) awarded Fulton extra-contractual damages in the amount of $10,000 for Farm Bureau's negligence in failing to investigate and pay Fulton's claim in a timely manner; and (c) found in favor of Farm Bureau on the claim for bad faith and punitive damages.
¶ 6. Post-trial, Fulton filed a motion for an award of attorney's fees, expenses, costs, and prejudgment interest. Fulton titled the motion as, "Plaintiff's Motion to Amend Judgment and to Award Attorneys Fees and Expenses, Costs and Interest." The motion asked the circuit court to award Fulton $120,773 in attorney's fees and expenses. The motion included a detailed itemization of the attorney's fees and expenses incurred. In the motion, Fulton claimed that the award was authorized by Universal Life Insurance Co. v. Veasley, 610 So.2d 290 (Miss.1992).
¶ 7. After a hearing, the circuit court denied the motion, stating:
¶ 8. "Since this Court's standard of review dictates that the discretionary decision of the trial judge to deny attorney's fees be reversed only upon an abuse of discretion, this Court must determine if such an abuse, such as misapplication of the law or an unreasonable decision in light of the alternatives, occurred." Cruse v. Nunley, 699 So.2d 941, 944 (¶ 11) (Miss. 1997) (citation and quotation omitted).
¶ 9. Fulton argues that the circuit court's ruling was in direct conflict with supreme court precedent. Indeed, Mississippi law on this issue is well settled. In Bruce v. Bruce, 587 So.2d 898, 903 (Miss. 1991), the Mississippi Supreme Court held that "motions for reassessment of costs or for attorneys fees lie outside Rule 59(e), because they are `collateral' and do not seek a change in the judgment but `merely what is due because of the judgment.'" In Cruse, 699 So.2d at 946 (¶ 19), the supreme court also held that "[r]egardless of when attorney's fees are requested, the court's decision of entitlement to fees will therefore require an inquiry separate from the decision on the merits — an inquiry that cannot even commence until one party has `prevailed.'" "[T]he fact that [a] fee request was made after the entry of judgment is not a proper basis for denying the fee award." Id. at (¶ 20).
¶ 10. The jury's verdict of $10,000 for extra-contractual damages is not subject to consideration in this appeal. To award extra-contractual damages, the jury had to find that the mental anguish and emotional distress of the plaintiffs was "an independent intentional tort separate from the breach of contract." Veasley, 610 So.2d at 295. In Veasley, the supreme court held that "[s]imple negligence is not such an independent tort that would support extra-contractual damages." Id. Fulton's request for attorney's fees and expenses was based on the following language from Veasley: "Additional inconvenience and expense, attorney['s] fees and the like should be expected in an effort to have the oversight corrected. It is no more than just that the injured party be compensated for these injuries." Id.
¶ 11. In Essinger v. Liberty Mutual Fire Insurance Co., 534 F.3d 450, 451 (5th Cir.2008), the United States Fifth Circuit Court of Appeals discussed Veasley and concluded:
(Emphasis added).
¶ 12. The question presented is whether attorney's fees, under Veasley, are to be submitted to the jury to determine as an element of damages to be awarded or to the court as a collateral or derivative matter. The supreme court answered this in Mississippi Power & Light Co. v. Cook, 832 So.2d 474 (Miss.2002).
¶ 13. In Cook, a former employer of MP & L brought a bad-faith action against MP & L. Id. at 478 (¶ 4). The former employee alleged that MP & L had no arguable basis to stop his workers' compensation benefits. The jury awarded the former employee compensatory damages in the amount of $150,000 and punitive damages in the amount of $5,000,000. Id. Based on the award of punitive damages, the circuit court entered an award of attorneys' fees in the amount of $2,060,000. Id. The supreme court held the following standard of review applied to the award of attorneys' fees:
Cook, 832 So.2d at (¶ 7). The supreme court reversed the award of punitive damages and rendered a remittitur of the award of punitive damages on the condition that if the remittitur is not accepted then the case would be remanded for a new trial on punitive damages. Id. at 485 (¶ 38).
¶ 14. The supreme court also held that "[w]here punitive damages are awarded by the jury, attorneys' fees are justified." Id. at 486 (¶ 40). The supreme court noted that the trial judge, not the jury, ordered the payment of attorneys' fees. Id. at 487 (¶ 41). The supreme court then concluded that the trial court abused its discretion in the award of attorneys' fees by not following the appropriate guidelines. Id. at (¶ 42). The supreme court then held:
Cook, 832 So.2d at 487-88 (¶¶ 42-43) (emphasis added).
¶ 15. Based on Cook, this Court is of the opinion that the same holds true where extra-contractual damages are awarded by the jury. The issue of attorney's fees is to be submitted to the court as a collateral or derivative matter. Thus, the time for such consideration is post-trial, as Fulton attempted to do here.
¶ 16. We find that the circuit court improperly considered Fulton's motion under Rule 59(e). Accordingly, we reverse the judgment of the circuit court and remand this action for the consideration of Fulton's motion for attorney's fees and expenses.
¶ 17.
LEE, C.J., IRVING, P.J., ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY BARNES, J. MYERS, J., NOT PARTICIPATING.
CARLTON, J., dissenting:
¶ 18. I respectfully dissent from the opinion of the majority. Procedural history and facts relevant to this case and my dissent show that Robert Michael Fulton filed suit against Mississippi Farm Bureau Casualty Insurance Company (Farm Bureau) and a third-party tortfeasor, Lofton Eugene Pigg Jr. (Pigg). Fulton received injuries to his back after being struck by an automobile driven by Pigg at the Little Yazoo Dirt Race Track. Pigg, intoxicated at the time of the collision, informed the investigating officer that he lacked automobile insurance. Fulton delayed notifying Farm Bureau about the collision for over six months. When Fulton tendered a claim for uninsured-motorist benefits to Farm Bureau, Farm Bureau paid him $25,502.50 of the total amount available, $50,500.
¶ 19. Fulton's complaint against Farm Bureau alleged the following: breach of contractual duty to pay insurance proceeds; gross negligence in breaching a duty to investigate, process, and pay Fulton's claim; and bad-faith refusal to pay, asserting that Farm Bureau possessed no arguable justifiable basis for delay.
¶ 20. The final judgment, agreed as to form by the attorneys, reflects that the jury found no breach of contract by Farm Bureau in failing to pay Fulton, but it shows that the jury found Farm Bureau negligent in failing to investigate Fulton's uninsured-motorist claim timely and adequately and in delaying the payment of his claim. The agreed final judgment further reflects that upon finding Farm Bureau negligent, the jury then awarded Fulton $10,000 in extra-contractual damages for that negligence. However, the final judgment does not reflect that the jury found that Farm Bureau acted with gross negligence or reckless disregard. The final judgment does reflect, though, that as to Fulton's claim for bad faith and punitive damages, the jury found in favor of Farm Bureau.
¶ 21. The final judgment also reflects that the jury found Pigg to be 100% at fault and the proximate cause of the accident in question. The jury awarded $24,497.50 to Fulton for compensatory damages due to Pigg's alleged negligence. The final judgment concluded by ordering that Fulton recover from Farm Bureau the total sum of $34,497.50, with post-judgment interest at the rate of 6% per annum. The court also ordered that Farm Bureau was to recover the sum of $65,000, plus post-judgment interest, from Pigg. The final judgment is signed by counsel for both parties as to form, as well as the circuit judge, and is dated April 17, 2009.
¶ 22. Then, on April 28, 2009, Fulton filed a post-trial motion for an award of attorney's fees, expenses, costs, and prejudgment interest. Fulton acknowledged in his post-trial motion that a judgment agreed to as form based on the jury verdict was presented to the circuit court, and then Fulton requested to amend that judgment to add attorney's fees, costs, and prejudgement interest. Fulton asked the trial court for $120,773 in attorney's fees and asserted that these fees represented 484.8 hours of attorney and paralegal time and expenses amounting to $13,749.97.
¶ 23. In Fulton's post-trial motion to amend, he asserts the jury's finding of negligence in the delay in investigation and payment as the basis for his request for attorney's fees to be awarded by the judge as judgment derivative upon post-trial motion. Fulton's counsel acknowledged in the motion that they engaged in a contingent-fee arrangement with Fulton but now wanted an award at a higher rate for the hours spent on the case, or a multiplier of their lodestar time. Farm Bureau filed a brief in opposition to Fulton's request to amend the judgment. After a hearing on Fulton's motion, the circuit court denied the motion on procedural grounds, holding that a post-judgment motion for attorney's fees mandates a showing of the requirements of Mississippi Rule of Civil Procedure 59(e), and Fulton had failed to present any of the three alternative grounds for a Rule 59(e) motion as set forth by Brooks v. Roberts, 882 So.2d 229, 233 (¶¶ 15-16) (Miss.2004). As his sole assignment of error on appeal, Fulton asks this Court to determine whether the circuit court erred in denying his motion to amend the judgment based upon the trial court's judgment that the motion constituted a motion made pursuant to Rule 59(e). Fulton argues that his motion lies outside of Rule 59(e), and he asserts the award is a
¶ 24. Upon review of the issues and record submitted on appeal, I respectfully submit that I find no abuse of discretion in the circuit judge's treatment of Fulton's post-trial motion to amend the judgment to award attorney's fees as a motion under Rule 59(e). After a review of the record before us, I find that the record provides no support in this case to award attorney's fees collaterally as judgment derivative since the jury found Farm Bureau merely negligent in delay and investigation. The circuit judge would have to reconsider the award of extra-contractual damages awarded to Fulton by the jury for negligent delay in investigation and payment in order to award Fulton attorney's fees since no basis exists in our jurisprudence to award attorney's fees as judgment derivative in cases of mere negligence. Compare F.R.C.P. 54(d). Fulton plead actual economic damages, including attorney's fees, as an element of damages resulting from Farm Bureau's delay in payment and investigation. While the jury failed to find gross negligence as pled by Fulton, the jury found only negligence and awarded him $10,000 in extra-contractual damages for that tort. Fulton does not raise on appeal any error as to the award of extra-contractual damages, and the record reflects no request for an additur by Fulton.
¶ 25. The Mississippi Supreme Court has established that if a party seeks to alter or amend a final judgment, the proceedings fall under the purview of Rule 59(e), requiring the movant to show the following: (i) an intervening change in controlling law, (ii) availability of new evidence not previously available, or (iii) need to correct a clear error of law or to prevent manifest injustice. Brooks, 882 So.2d at 233 (¶¶ 15-16); Bang v. Pittman, 749 So.2d 47, 52-53 (¶ 29) (Miss.1999) (overruled on other grounds). This Court reviews a trial court's denial of a Rule 59 motion under an abuse-of-discretion standard. Bang, 749 So.2d at 52 (¶ 28).
¶ 26. Fulton argues that the circuit court should not have applied the requirements of Rule 59(e) to his motion to amend the judgment, claiming that an award of attorney's fees is judgment derivative and based upon the jury verdict and thus fails to require the court to reconsider a judgment. Fulton claims that attorney's fees are not for a jury to determine. Fulton cites numerous cases
¶ 27. I agree that cases exist wherein attorney's fees are indeed judgment derivative,
¶ 28. When attorney's fees are awarded as an element of damages for reasonably foreseeable actual economic extra-contractual damages resulting from a tort,
¶ 29. The recent precedent of United Services Automobile Association v. Lisanby, 47 So.3d 1172, 1178 (¶ 18) (Miss.2010), finds that:
Id. (quoting Liberty Mut. Ins. Co. v. McKneely, 862 So.2d 530, 534 (Miss.2003)).
¶ 30. The Mississippi Supreme Court has determined that in the absence of statutory authority or a contractual provision, attorney's fees cannot be recovered unless the facts rise to such gross or willful wrong as to justify the infliction of punitive damages. See Cook, 832 So.2d at 486 (¶ 40); Simpson, 477 So.2d at 253; see also Bank of Miss., 850 So.2d at 137 (¶ 39) (generally, absent a statute allowing such an award, attorney's fees and costs are not awarded unless punitive damages are awarded). Ascertaining whether statutory authority exists for a collateral award of attorney's fees herein, the Mississippi Code provides no statutory authority for an award of attorney's fees in uninsured-motorist-insurance cases absent punitive damages. See Miss.Code Ann. § 83-11-103 (Supp.2010).
¶ 31. The agreed judgment reflects that the jury found Farm Bureau was negligent in that respect. Then, this interrogatory inquired: "If you answer `YES' to the this question, what amount of extra-contractual damages do you award Fulton against Farm Bureau?" Underneath this question, the jury awarded Fulton $10,000 in extra-contractual damages.
¶ 32. Fulton cites Veasley, 610 So.2d at 295, arguing that a narrow exception to this rule exists in limited circumstances to allow for an award of attorney's fees even where the jury failed to award punitive damages. As clarified in Wise v. Kansas City Life Insurance Co., 433 F.Supp.2d 743, 753 (N.D.Miss.2006), "[t]he Veasley exception applies in bad[-]faith insurance cases where the defendant insurer lacked an arguable basis for denying a claim and failed to pay the claim; in such cases, an award of attorneys' fees to a prevailing plaintiff may be appropriate even if the fact-finder did not award punitive damages." See Veasley, 610 So.2d at 295.
¶ 33. Veasley provides specifically that mere negligence is not such an independent, intentional tort that would support such extra-contractual damages. Veasley, 610 So.2d at 295. In this case, as previously discussed, the jury determined Farm Bureau's actions constituted only negligence, and the judgment reflects no finding of any intentional or malicious act or any act of reckless disregard rising above mere negligence;
¶ 35. In addition to acknowledging Farm Bureau's factual arguable basis, I submit that precedent clearly requires more than simple negligence for attorney's fees to be awarded as judgment derivative. Veasley, 610 So.2d at 295. The agreed judgment herein reflects that Fulton failed to prove that Farm Bureau's actions constituted more than simple negligence, and as a result, Fulton failed to establish a legal basis for an award of attorney's fees as judgment derivative in this case. The appellant bears the responsibility to designate the portions of the record necessary to the understanding of his issues on appeal,
BARNES, J., JOINS THIS OPINION IN PART.
1 Robert L. Rossi, Attorneys' Fees § 8:1 (3d ed.)