COLEMAN, Justice, for the Court:
¶ 1 The insureds filed suit against their insurers in the Circuit Court for the First Judicial District of Jones County, claiming they were unaware their insurance policy had a $250,000 per-claim deductible and alleging that the insurer breached its insurance contract by refusing to provide a defense until the insureds paid the $250,000 deductible for each of five separate claims. The circuit court granted summary judgment for the insurers and the insureds appeal. We affirm the circuit court's grant of summary judgment.
¶ 2 Daleson Enterprises, LLC ("Daleson") operated Jones County Rest Home in Ellisville. Medforce Management, LLC ("Medforce") operated Willow Creek Retirement Center in Byram. Southern Healthcare Services, Inc. ("Southern Healthcare") managed both Daleson and Medforce. Southern Healthcare purchased professional and general liability insurance from Lloyd's of London ("Lloyd's") to cover Daleson, Medforce, and others. Southern Healthcare was the first named insured on the policy. Southern Healthcare, Daleson, and Medforce will be referred to collectively as the "Insureds."
¶ 3 In 2001, a previous operator of Jones County Rest Home had purchased an insurance policy from Lloyd's with a $25,000 deductible. An agent at Fox-Everett, Inc. facilitated the purchase. Daleson assumed the operation of Jones County Rest Home in 2002, and the Insureds asked the Fox-Everett agent to obtain an insurance policy similar to the one held by the previous operator. The Fox-Everett agent obtained a policy from Lloyd's in October 2002, and the Insureds claim that they thought the policy was nearly identical to the policy the previous owner had in place. The Insureds contend the Fox-Everett agent informed them their new policy had a higher premium and lower policy limit. Otherwise, the Insureds believed their new policy was identical to the previous one.
¶ 4 In 2003 and 2004, various plaintiffs filed five lawsuits against the Insureds. When each civil action arose, the Insureds notified Lloyd's in accordance with the policy terms. Caronia Corporation ("Caronia") acted as the third-party administrator for Lloyd's, and Caronia sent a reservation of rights ("ROR") letter to the Insureds acknowledging receipt of each claim. Via the ROR letters, Caronia informed the Insureds that "Lloyd's would not provide coverage under the policies until the $250,000 deductibles were paid in full."
¶ 5 The ROR letters were standard communications that included claim information, acknowledged receipt of the lawsuit, stated that indemnification and defense would be provided, and set forth any issues that would not be covered under the policy or that would be defended under a reservation of rights. The letters provided the name and contact information of the attorneys Lloyd's had hired to defend the Insureds. Each letter included the following language about the deductible:
The Insureds claim they were "thunderstruck" by the above-quoted language regarding the operation of the deductible.
¶ 6 Caronia sent the ROR letters directly to the nursing homes, rather than to Southern Healthcare. Daleson and Medforce initially paid the attorneys directly until the dispute arose over the deductible. In early 2005, Daleson and Medforce filed for bankruptcy and stopped paying the defense attorneys. They claim they had no choice but to file for bankruptcy because they could not pay the total $1.25 million for the five claims. However, Southern Healthcare did not file for bankruptcy; as the first named insured, Southern Healthcare was the only entity actually responsible for paying the deductible.
¶ 7 In August 2006, the Insureds filed suit against Lloyd's, Caronia, and Fox-Everett (collectively the "Insurers") in the Circuit Court for the First Judicial District of Jones County. Against Lloyd's, the Insureds alleged breach of contract for failure to provide coverage and defense costs. Against both Lloyd's and Caronia, they alleged fraud and breach of the duty of good faith and fair dealing for misrepresenting that the Insureds had to pay the deductibles in full before they were entitled to coverage. Against Fox-Everett, they asserted breach of contract, breach of fiduciary duty, negligent misrepresentation, and gross negligence for allegedly procuring the policy without informing the Insureds of the $250,000 deductible.
¶ 8 Lloyd's counterclaimed, alleging breach of contract against Southern Healthcare and seeking a declaratory judgment that Southern Healthcare must pay the $250,000 deductible for each of the underlying suits. After settling the underlying claims, Lloyd's moved for summary judgment on the Insureds' claims against it and Caronia. Lloyd's also moved for summary judgment on its counterclaim. The trial judge, Judge Robert G. Evans, found no issues of material fact and granted Lloyd's summary judgment. The ruling required the Insureds to reimburse Lloyd's in the amount of $701,153.54 for the costs of defense and settlement that fell within the per-claim deductible. Pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure, the trial judge entered a final judgment as to the Insureds' claims against Lloyd's and Caronia on March 26, 2008. The trial judge entered a final judgment as to Lloyd's counterclaim against Southern Healthcare on July 11, 2008. The Insureds' claims against Fox-Everett were not part of the summary judgment.
¶ 9 The Insureds appealed, and the case was assigned to the Court of Appeals. The Court of Appeals dismissed the appeal as improperly certified because the claims against Fox-Everett had not been disposed of, and it found those claims to be "intertwined" with the claims for damages. S. Healthcare Servs., Inc. v. Lloyd's of London, 20 So.3d 84, 88 (¶ 14) (Miss.Ct. App.2009). The majority did not address the propriety of summary judgment. Four judges dissented, writing that the appeal should not have been dismissed because the claims against Fox-Everett were not relevant to the claims against Lloyd's and Caronia and the appeal was properly before the court. Id. at 92 (¶¶ 33-34). In addition, the dissenting judges would have reversed the trial court's grant of summary judgment and remanded for a trial on the merits. Id. at 99 (¶ 63).
¶ 10 On remand, the Insureds filed a motion to reconsider summary judgment. Judge Evans died before the motion could be considered, and Judge Joe N. Pigott was appointed as Special Judge to preside over the case. Judge Pigott scheduled a hearing on the motion to reconsider summary judgment and for a status conference on March 10, 2011. At the hearing, Judge Pigott vacated the summary judgments granted by Judge Evans, directed the parties to proceed with discovery, and set a trial date.
¶ 11 Following the March 10th hearing, the litigation continued as though all parties were again in the suit and proceeding to trial in September. At a hearing on a motion to compel discovery held on June 16, 2011, Judge Pigott did not remember vacating the summary judgments, and an order had not been entered vacating them. However, an order dated August 16, 2011,
¶ 12 On September 29, 2011, the parties were before Judge Pigott at a hearing on another motion to compel and a motion for leave to amend the complaint. At the hearing, Judge Pigott reinstated the grants of summary judgment in favor of Lloyd's and Caronia, finding that they were never reversed and were still in effect. Judge Pigott said Fox-Everett was the only defendant left in the case, and the Insureds were to proceed to trial against Fox-Everett only. He denied the Insureds' motion to amend the complaint, because the amendments pertained only to Lloyd's. Judge Pigott entered new final judgments dismissing the Insureds' claims against Lloyd's and Caronia and dismissing Lloyd's counterclaim against the Insureds. After entry of the final judgments, the Insureds filed multiple motions indicating they believed Judge Pigott did not allow their arguments into the record. The Insureds also filed a motion for a new trial, which the trial court denied. Meanwhile, the Insureds settled with Fox-Everett. The Insureds then appealed to this Court regarding Judge Pigott's second, or reinstated, grants of summary judgment in favor of Lloyd's and Caronia.
¶ 13 On appeal, the Insureds assert several arguments based on alleged procedural errors by the second trial judge, Judge Pigott. The Insureds' motion to reconsider summary judgment should not have been granted, and because Judge Pigott later reinstated the original grants of summary judgment, the Insureds are in the same place they were when they first appealed in 2008.
¶ 14 "How a court treats a motion for reconsideration turns on the time at which the motion is served." Carlisle v. Allen, 40 So.3d 1252, 1260 (¶ 33) (Miss. 2010) (quoting Cannon v. Cannon, 571 So.2d 976, 978 n. 2 (Miss.1990)). If it is filed within ten days of entry of the judgment, it is considered a Rule 59(e) motion to alter or amend the judgment. Id. If it is filed more than ten days after the judgment is entered, it is considered a motion for relief under Rule 60(b). Id. The motion for reconsideration at issue did not state that it was brought under Rule 59, and it was filed two years after the motions for summary judgment were granted. Thus, it should have been considered a motion for relief under Rule 60(b). Rule 60(b) provides the following:
Miss. R. Civ. P. 60(b). The motion at hand was filed more than six months after the final judgment was entered, so it could not have been based on reasons (1), (2), or (3). Id. The Insureds did not assert that the judgment was void or that it had been satisfied, released, or discharged subject to reasons (4) or (5). Id. Thus, the motion could have been granted only for "any other reason justifying relief" under reason (6). Id. Regarding Rule 60(b)(6), this Court has explained:
Carpenter v. Berry, 58 So.3d 1158, 1162 (¶ 18) (Miss.2011). This Court has also said that "Rule 60(b) motions should be denied where they are merely an attempt to relitigate the case." M.A.S. v. Miss. Dep't of Human Servs., 842 So.2d 527, 530 (¶ 12) (Miss.2003) (quoting Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss. 1984)).
¶ 15 Of the factors relevant to this case, we emphasize that "final judgments should not lightly be disturbed" and that a "Rule 60(b) motion is not to be used as a substitute for appeal." Carpenter, 58 So.3d at 1162 (¶ 18). We also consider the timeliness of the motion. The trial court's original order granting summary judgment was entered on March 19, 2008. The Insureds' motion to reconsider summary judgment was filed on July 13, 2010, more than two years later and after the case had been remanded. The Court of Appeals remanded the case for the sole purpose of adjudicating the claims against Fox-Everett, not to relitigate the summary judgment issues. The Insureds' motion to reconsider summary judgment was procedurally improper, because the summary judgment issues should have been considered on appeal once it was properly before the Court of Appeals. Filing a motion to reconsider while the case was on remand was an attempt to relitigate the issues and circumvent the appeals process.
¶ 16 Taking into account the above-listed factors, as well as this Court's rule that Rule 60(b) motions should not be used to relitigate cases, we find that the motion should not have been granted. Regardless, Judge Pigott later reversed his decision, reinstated the initial grants of summary judgment, and adopted the first judge's findings of fact and conclusions of
¶ 17 This Court has framed the issues as follows: (1) whether the trial court's original grant of summary judgment on the Insureds' claims against Lloyd's was proper; and (2) whether the trial court's original grant of summary judgment on Lloyd's counterclaim was proper. Summary judgment is appropriate if "there is no genuine issue as to any material fact." Miss. R. Civ. P. 56(c). A de novo standard of review is applied to a circuit court's grant or denial of summary judgment. Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 174 (¶ 14) (Miss.2009). This Court views the evidence "in the light most favorable to the party against whom the motion has been made." Id. (quoting Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993)). However, the opposing party "may not rest upon the mere allegations or denials of his pleadings, but his response... must set forth specific facts showing that there is a genuine issue for trial." Miss. R. Civ. P. 56(e).
¶ 18 The trial judge granted summary judgment in favor of Lloyd's and Caronia, finding the two entities had performed their duties under the contract and no dispute of material fact existed. The Insureds were ordered to reimburse Lloyd's in the amount of $701,153.54 for defense costs and settlements that fell within the per-claim deductible. The Insureds claim that summary judgment was not proper because Lloyd's breached its duty of good faith and fair dealing by "conditioning coverage on prepayment of the deductible."
¶ 19 First, the Court must determine if the terms of the deductible were clear and unambiguous, such that the Insureds were subject to the deductible. The law pertaining to interpretation and enforcement of insurance policies is well-established. Interpretation of an insurance policy presents a question of law, which the Court reviews de novo. Farmland Mut. Ins. Co. v. Scruggs, 886 So.2d 714, 717 (¶ 10) (Miss.2004). "[W]hen the words of an insurance policy are plain and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written." Noxubee County Sch. Dist. v. United Nat'l Ins. Co., 883 So.2d 1159,
¶ 20 Insurance policies are contracts, and where the terms of an insurance policy are ambiguous, the rules of contract interpretation and construction will be applied. Krebs v. Strange, 419 So.2d 178, 181 (Miss.1982).
¶ 21 Pursuant to the policy, the Insureds bore responsibility for a $250,000 deductible on any general or professional liability claim, and defense costs were to be included in that amount. Specific terms pertaining to the deductible were found throughout the policy. The following policy provisions relate to the duties of the insurer and the insured in the event of a claim:
(Underline added; other emphasis in original.)
¶ 22 The Declarations Page provided that the limit of insurance for a general or professional liability claim was $500,000 per claim. Item 3 on the Declarations Page was titled "
The Insured shall:
(Emphasis in original.) Endorsement Number 1 was attached to the front of the policy, and it provided:
(Underline added; other emphasis in original.)
¶ 23 The Deductible Liability Insurance Endorsement included a schedule of the applicable deductibles, showing a $250,000 per-claim deductible for medical incidents. It included the following provision:
(Underline added.) According to the terms set forth here, taken together and read as a whole, we find that the Insureds were subject to the deductible, and the Insurers' duty to provide coverage for damages applied after the deductible was met. According to the Declarations, the deductible included defense costs. The Insurers had a duty to retain counsel and participate in the defense, but the Insurers' duty to pay defense expenses did not arise until the deductible had been met.
¶ 24 The Insureds claim that, when they obtained the first policy from Lloyd's, the Fox-Everett agent failed to tell them about the deductible. They also claim that they did not receive a copy of the policy until eleven months after purchasing it. They did, however, receive that copy prior to renewing the policy in 2003, and the 2003 policy is the one at issue. Therefore, even if the Insureds did not know about the deductible the first year, by the time they renewed the policy in 2003, they had a copy of it, and they should have known about the deductible before they renewed. In light of the numerous references to the deductible throughout the policy, with several pages referencing the deductible signed by the Insureds, the Insureds cannot argue that they were unaware of the deductible when they renewed the policy in 2003.
¶ 25 The Insureds may have signed the policy and endorsements without reading them, but failure to read the policy is not a valid reason for not knowing its contents. Under Mississippi law, "a contracting party is under a legal obligation to read a contract before signing it," and "a person is charged with knowing the contents of any document that he executes." Terminix Int'l, Inc. v. Rice, 904 So.2d 1051, 1056 (¶ 18) (Miss.2004) (internal citations omitted). Further, where one has a duty to read a contract before signing it, he will not "be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract." Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., Inc., 584 So.2d 1254, 1257 (Miss.1991) (internal citations omitted). As a matter of law, we presume that the Insureds read the policy and saw the terms setting forth the $250,000 deductible. Therefore, the Insureds' claim that they did not know of the deductible cannot stand. This Court will not reject or refuse to enforce certain policy terms simply because one party claims not to know of the terms. See Terminix, 904 So.2d at 1056 (¶ 18).
¶ 27 The Insureds argue that the trial court's grant of summary judgment was improper because Lloyd's breached its contractual duties under the policy, as well as its fiduciary duties of good faith, fair dealing, and reasonable care by conditioning coverage on payment of the deductible.
¶ 28 An insurer has an absolute duty to defend those claims against the insured covered by the insurance policy. Moeller v. Am. Guar. & Liab. Ins. Co., 707 So.2d 1062, 1069 (Miss.1996). This Court has said the following about an insurer's duty to defend:
Baker Donelson Bearman & Caldwell, P.C. v. Muirhead, 920 So.2d 440, 450-51 (¶¶ 40-41) (Miss.2006) (internal citations omitted) (emphasis added). This Court recently summarized an insurer's fiduciary duties as follows:
Indem. Ins. Co. of N. Am. v. Guidant Mut. Ins. Co., 99 So.3d 142, 150-51 (¶¶ 23-24) (Miss.2012).
¶ 29 The Insureds rely on Baker Donelson, Moeller, and similar cases to claim that the Insurers had an absolute duty to defend. First, the cases cannot be read in a vacuum. There is no indication that the policies in Baker Donelson or Moeller included a deductible, so the principles therein cannot be strictly applied without taking into account the terms of the specific policies at issue. Second, Baker Donelson specifically says that the insurer's duty to defend derives from the insurance policy. Baker Donelson, 920 So.2d at 450. According to the terms of the instant policy, the Insurers had a duty to retain counsel and participate in the defense, but the Insurers' duty to pay for the defense did not arise until the Insureds exhausted the deductible.
¶ 30 As with any deductible, the insured is required to expend the amount of the deductible before coverage becomes available. An insurer's duty to indemnify is not triggered until the deductible has been paid. And where the policy specifies that defense costs are included in the deductible, the insurer is not responsible for defense costs until the deductible has been paid. One treatise has explained insurance deductibles and self-insured retentions as follows:
Allan D. Windt, 3 Ins. Claims & Disputes § 11:31 (5th ed.2012). A deductible is, by definition, "the portion of the loss to be borne by the insured before the insurer becomes liable for payment." Black's Law Dictionary 185 (3d pocket ed.2006). The Fifth Circuit, applying Mississippi law, gave the following "common understanding of how deductibles operate in insurance policies":
¶ 31 Although deductibles and self-insured retentions ("SIR") generally serve the same purpose — to shift a portion of the risk from the insurer to the insured — they are different creatures. Boston Gas Co. v. Century Indem. Co., 454 Mass. 337, 910 N.E.2d 290, 294 n. 8 (2009). A SIR is just what its name implies, a form of self insurance. With a SIR, the insured is usually responsible for its own defense until the SIR is exhausted. Id. (quoting A.D. Windt, 2 Ins. Claims & Disputes § 11:31, 11-495 (5th ed.2007)). Where a policy is subject to a SIR, the insurer is more like an excess insurer, and the insurer's duty to defend and indemnify is not triggered until the SIR is exhausted. With a deductible, on the other hand, the insurer usually has a duty to defend upon receipt of notice of the claim. (However, in this case, the policy states that defense costs are included in the deductible. So the deductible here operates more like a SIR, and the Insurers have no duty to pay for the defense until the deductible is exhausted. Still, the Insurers have the option to pay for the defense and/or settle the claim, and then seek reimbursement from the insureds.)
¶ 32 The Insureds base much of their argument on appeal on the dissenting opinion from the Court of Appeals. The dissenting judges opined that the policy did not require "prepayment" of the deductible as a condition to providing a defense; they quoted the following policy terms in support of their position:
(Underline added.) The dissent wrote, "This endorsement contains no provision requiring prepayment of the deductible as a condition for providing a defense to the Appellants, as required by the contract." S. Healthcare, 20 So.3d at 95 (¶ 44) (Griffis, J., dissenting).
¶ 33 The dissenting judges and the Insureds may have misunderstood the ROR letters and thought the Insurers required "prepayment" of the entire deductible amount before the Insurers would do anything regarding the claims. If such were the case, then the dissent was correct. However, the Insureds were not required to pay the entire deductible amount up front. That is not required under the policy, and it was not required by the Insurers. However, the Insureds were required to pay costs and expenses on an ongoing basis, up to the point that the deductible was exhausted. The policy clearly says that the supplementary payments listed above, including defense
¶ 34 The Deductible Liability Insurance Endorsement, under the "Application of Endorsement" section, provides that the Insurers' obligation "applies only to the amount of damages in excess of any deductible amounts." It also provides that the terms of the insurance with respect to the Insurers' "right and duty to defend ... apply irrespective of the application of the deductible amount." In its defense of a claim, the Insurer can "pay any part or all of the deductible amount" to settle a claim, but the Insureds must reimburse the Insurer for any part of the deductible amount the Insurer pays. The Insurer does have a duty to defend — according to Mississippi law and the policy at issue — but the Insureds must still pay attorneys' fees up to the amount of the deductible.
¶ 35 Regarding the Deductible Liability Insurance Endorsement (set forth, supra, ¶ 23), the dissent implied that defense costs were not included in the deductible because the endorsement did not "define defense expenses as damages." S. Healthcare, 20 So.3d at 95 (¶ 46) (Griffis, J., dissenting). The policy repeatedly states that defense costs are included in the deductible and that the amount the Insurers will pay for defense costs is subject to the deductible. The Insurers have a duty to be involved in the defense upon notice of the claim, but the Insurers are not required to pay defense costs until the deductible has been exhausted.
¶ 36 The Insurers did not breach any contractual or fiduciary duties to the Insureds. The Insurers did not deny coverage as the Insureds contend. The Insurers exercised their right to provide a defense while reserving their right to deny coverage for claims that may not be covered under the policy. The Insurers certainly have the right to provide a defense under a reservation of rights. See Moeller, 707 So.2d at 1069. They also exercised their right under the policy to advance part of the deductible amount to settle the claims. In fact, all of the claims were settled or dismissed between December 2006 and August 2007. Of the four claims that were settled, three were settled for less than the deductible amount.
¶ 37 The Insureds operated subject to the $250,000 per-claim deductible, and the Insureds were required to pay defense costs and expenses as they came due until they exhausted the deductible. The Insurers retained counsel and participated in the defense, ultimately settling all of the claims and advancing the settlement amounts. The Insurers did not breach any contractual or fiduciary duties, and the Insureds failed to show the existence of any genuine issues of material fact that should have precluded summary judgment.
¶ 38 The Insureds take specific exception to the Insurers' handling of the Huffmaster claim. The Insurers argue that this claim was waived because the Insureds did not raise it in their original Complaint. The specific claim regarding the Huffmaster lawsuit was not in the original Complaint, and this Court will not
¶ 39 Regardless, the issue is without merit. As discussed above, when a settlement offer is made within the policy limits, an insurer has a duty to "make a knowledgeable, honest[,] and intelligent evaluation of the claim." Hartford, 528 So.2d at 265. However, if the insurer honestly believes the claim has no merit or that its insured is not liable, the insurer is not required to accept a settlement offer simply because it is within the policy limits. The following was said in the Hartford case:
Hartford, 528 So.2d at 266 (emphasis in original).
¶ 40 The Huffmaster claim arose in 2003. In mid to late 2004, defense counsel had an indication that Huffmaster's attorneys were "motivated to settle," and she recommended making a settlement offer. The Insurers asked what "a good opening offer" would be, and counsel recommended that the Insurers offer $150,000 in addition to the $250,000 deductible, which the Insureds were willing to contribute. No evidence exists that Huffmaster made a settlement demand, or that talks of settlement went beyond these discussions at that time. Likewise, no evidence exists that the Insurers did anything less than required in regard to an honest, knowledgeable, and intelligent evaluation of the claim. Although the Insurers acknowledged the defense attorney's venue concerns, they apparently found the Huffmaster case to have very little merit. The case ultimately settled for $172,640.64, which was below the discussed settlement amount of $400,000. There is no evidence that the Insurers breached any duty in failing to settle that claim at an earlier time.
¶ 41 The Insureds have failed to show the existence of genuine issues of material fact that should be reserved for a jury. First, the policy was unambiguous, and the Insureds were subject to the $250,000 per-claim deductible, which included defense costs. Second, the Insurers did not breach any contractual or fiduciary duties; they retained counsel, participated in the defense, settled all of the claims after the Insureds stopped paying defense costs, and advanced the settlement amounts. The trial court did not err in granting summary judgment in favor or Lloyd's and
¶ 42 The Insureds claim that summary judgment in favor of Lloyd's on Lloyd's counterclaim was not proper because the Insureds were discharged from liability by Lloyd's breach of contract, and/or the counterclaim was barred by Lloyd's fraud, bad faith, and gross negligence.
¶ 43 The language in the insurance policy pertaining to the $250,000 per-claim deductible was clear and unambiguous. The Insurers did not deny a defense or coverage to the Insureds. Rather, the Insurers required the Insureds to pay the $250,000 deductible amount, which included defense costs, as required by the policy. The Insurers fulfilled their duties under the policy. We find no genuine issue of material fact that should have precluded summary judgment. We affirm the trial court's grant of summary judgment in the Insurers' favor on both the Insureds' claims and Lloyd's counterclaim.
¶ 44
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, AND KING, JJ., CONCUR.