IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO.2015-CA-01572

Transcription

1 E-Filed Document Jul :36: CA Pages: 19 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO.2015-CA RICHARD RYLEE AND BETH RYLEE APPELLANTS/PLAINTIFFS vs. VS. PROGRESSIVE GULF INSURANCE COMPANY, et al. APPELLEES/DEFENDANTS APPELLEESIDEFENDANTS APPELLEE PROGRESSIVE GULF INSURANCE COMPANY'S BRIEF ORAL ARGUMENT NOT REQUESTED C. Maison Heidelberg, MB 9559 WATSON HEIDELBERG JONES PLLC 2829 Lakeland Drive, Suite 1502 Flowood, MS tel fax Attorney for Appellee Progressive Gulf Insurance Company

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO CA RICHARD RYLEE AND BETH RYLEE APPELLANTS/PLAINTIFFS vs. PROGRESSIVE GULF INSURANCE COMPANY, et al. APPELLEES/DEFENDANTS CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Dawn Davis Carson, Attorney ofrecord for Appellee, Jessica Brashier. 2. Jason Hollingsworth, Attorney of record for Appellee, Jessica Brashier. 3. Edward C. Taylor, Attorney of record for Appellee, USAA Casualty Insurance Co. 4. Kristi Rogers Brown, Attorney of record for Appellee, USAA Casualty Insurance Co. 5. C. Maison Heidelberg, Attorney ofrecord for Appellee, Progressive Gulflnsurance Company. 6. Chuck R. McRae, Attorney of record for Appellants. 7. Seth C. Little, Attorney of record for Appellants. 8. Christopher Bambach, Attorney ofrecord for Appellants. 9. Richard Rylee and Beth Rylee, Appellants. 10. Progressive Gulflnsurance Co., Appellee.

3 11. USAA Casualty Insurance Co., Appellee. 12. Honorable Richard McKenzie, Special Circuit Court Judge. Isl C. Maison Heidelberg C. Maison Heidelberg, MB 9559 Attorney for Appellee Progressive Gulf Insurance Company ii

4 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS....i TABLE OF CONTENTS....ii TABLE OF AUTHORITIES....iv STATEMENT OF THE ISSUE... 1 STATEMENT OF THE CASE... 2 A. Course of Proceedings and Disposition of the Court Below... 2 B. Statement of Relevant Facts....3 SUMMARY OF THE ARGUMENT....4 ARGUMENT... 5 A. Loss of Consortium Claims are Subject to "Each Person" Limit of Injured Party... 5 B. Progressive's Uninsured Motorist Limit is Reduced by Liability Limit of State Farm Policy CONCLUSION CERTIFICATE OF SERVICE iii

5 TABLE OF AUTHORITIES Choctaw, Inc. v. Wichner 521 So. 2d 878,882 (Miss. 1988)... 8 Coho Resources, Inc. vs. McCarthy So. 2d 1,22 (Miss. 2002)... 7 Dixie Insurance Co. v. State Farm Mut. Auto. Ins. Co. 614 So. 2d 918, (Miss. 1992) Hankins v. Maryland Cas. Co.!Zurich Am. Ins. Co. 101 So. 3d 645,653 (Miss. 2012) Pearthree vs. Hartford cc. & Indemnity Co. 373 So. 2d 267 (Miss. 1979)... 8,9,10 Reid v. State Farm Mut. Auto Ins. Co. 784 F. 2d 577 (5 th Cir. 1986)... 5,7,9 State Farm Mut. Auto Ins. Co. v. Acosta 479 So. 2d 1089 (Miss. 1985)... 5,6,7,8,9 State Farm Mutual Automobile Ins. Co. vs. Kuehling 475 So. 2d 1159 (Miss. 1985) United States Fidelity & Guaranty Co. v. Ferguson 698 So. 2d 77 (Miss. 1997) United States Fidelity & Guaranty Co. v. John Deere Ins. Co. 830 So. 2d 1145, 1148 (Miss. 2002) United States Fidelity & Guaranty Co. v. Pearthtree 389 So. 2d 109 (Miss. 1980)... 9 iv

6 STATEMENT OF THE ISSUE Whether the trial court correctly granted summary judgment to Progressive Gulf Insurance Company because: (1) Beth Rylee's claim is derivative of Richard Rylee's claim such that she cannot recover under separate per person limits and, thus, she has no uninsured motorist coverage additional to or independent of Richard Rylee's coverage; and (2) Progressive's uninsured motorist coverage is offset by State Farm's liability limit, so there is no uninsured motorist coverage available under the Progressive policy. 1

7 STATEMENT OF THE CASE A. Course of Proceedings and Disposition of the Court Below This action arose out of a vehicular accident that occurred on January 19, 2011, between a motorcycle driven by Richard Rylee and an automobile driven by Jessica Brashier ("Brashier"). R. 5. Brashier had an automobile insurance policy through State Farm Insurance Company ("State Farm"), with liability limits of $25,000 per person and $50,000 per accident. R. 80. Richard Rylee made a claim against Brashier's State Fann liability policy. R. 79. State Farm offered Richard Rylee the $25,000 maximum per person coverage limits available under the policy to settle his claim, which Richard Rylee accepted. R On May 22, 2013, Beth Rylee, Richard Rylee's wife, filed a loss of consortium action against Brashier, Progressive Gulf Insurance Company ("Progressive"), the uninsured motorist coverage provider for Rylee's motorcycle, and USAA Casualty Insurance Company ("USAA"), the uninsured motorist provider for two ofrylee's other vehicles. R Progressive filed a motion for summary judgment on two independent grounds: (1) Beth Rylee's claim was derivative of her spouse's claim, and, thus, she could not recover under separate per person limits, such that she had no uninsured motorist coverage additional to, or independent of, her spouse's coverage; and (2) Progressive's $25,000 uninsured motorist coverage was offset by State Farm's $25,000 liability limits, so there was no uninsured motorist coverage under the Progressive policy. R On January 14, 2014, Richard Rylee filed an action against Brashier, Progressive, and USAA. R. 3. Progressive filed a motion for summaty judgment, asserting that Progressive, as the primary uninsured motorist coverage carrier (primary because Progressive insured the accident vehicle, the motorcycle), was entitled to offset State Farm's $25,000 liability limits 2

8 against the $25,000 uninsured motorist limits available under the Progressive motorcycle policy. R The trial court consolidated the Beth Rylee and Richard Rylee matters and, on September 21,2015, entered an order granting both of Progressive's motions for surmnary judgment. R The appellants appeal that ruling but only as it relates to Beth Rylee's claims. The appellants do not assert that the trial court en'ed in recognizing Progressive's right to set-off; instead, the appellants argue the trial court elted in not holding that Beth Rylee was subject to separate per person limits of $25,000 under the Progressive policy. B. Statement of Relevant Facts On January 19, 2011, at the intersection of Old Amy Road and Highway 15 North in Laurel, Mississippi, there was a vehicular collision between a motorcycle driven by Richard Rylee and an automobile driven by Brashier. R 3. Beth Rylee was not present at the time of the accident. R. 3. There are three relevant auto insurance policies. First, Brashier, the alleged tortfeasor, had a liability policy tln-ough State Fatm, with liability limits of $25,000 per person and $50,000 per accident. R. 80. Second, Richat'd Rylee had a motorcycle policy through Progressive, which covered the motorcycle that was involved in the accident. The Progressive policy provided uninsured motorist coverage with uninsured motorist limits of$25,000 per person and $50,000 per accident. R.365. Third, Richat'd and Beth Rylee had an auto policy issued by USAA, which provided coverage for two vehicles that were not involved in the accident - a Chevrolet Blazer and a Chevrolet Avalanche. The USAA policy provided uninsured motorist coverage limits of $25,000 per person and $50,000 per accident. R

9 Richard Rylee and his wife, Beth, brought separnte actions against Brashier, Progressive, and USAA. R. 3, 197. Both State Fann and USAA tendered policy limits. Specifically, State Farm tendered Brashier's per person liability limits of $25,000, R. 135, and USAA tendered the stacked uninsured motorist per person limits of$50,000 to Richard Rylee. R As State Farm had tendered $25,000, the per person coverage limits ofbrashier's liability policy, the State Farm policy limits were exhausted. R Progressive, the primary uninsured motorist coverage carrier, was entitled to offset State Farm's $25,000 against the $25,000 uninsured motorist per person limits available under the Progressive motorcycle policy. R. 81. Accordingly, Richard Rylee has no possibility of recovering under the Progressive policy as a matter oflaw. This is not disputed by the appellants. After offsetting the liability limits paid to Richard Rylee by State Farm, Progressive likewise does not owe any additional coverage for Beth Rylee's derivative claim because her claim is subject to the same per person limits as Richard Rylee's claim. The appellants disagree, arguing that Beth Rylee should be entitled to separate limits of $25,000 under the Progressive policy. Accordingly, the issue in this appeal is whether the Progressive policy provides separate per person limits for Beth Rylee's derivative claim. Because it does not, the sunnnary judgment for Progressive should be affirmed. SUMMARY OF THE ARGUMENT While the contract for insurance between Progressive and Richard Rylee provides uninsured motorist coverage for Beth Rylee's loss of consortium claim, her claim is derivative of, and subject to the same per person limits as, Richard Rylee's claim. After offsetting the liability limits paid to Richard Rylee by the tortfeasor's auto insurance carrier, Progressive does not owe any additional coverage for Beth Rylee's derivative claim. 4

10 ARGUMENT A. Loss of Consortium Claims are Subject to "Each Person" Limit of Injured Party. Beth Rylee is the wife of the person who suffered bodily injuries from the January 19, 2011, auto accident. She was not a passenger in Richard Rylee's vehicle, nor was she even present when the accident occurred. Accordingly, her claim is derivative of Richard Rylee's bodily injury claim. While an injured party's spouse or family member can make a derivative claim under an uninsured motorist policy, that claim is not recognized as separate for purposes of the per person policy limits. This law is clear and well established in both Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577 (5 1 h Cir. 1986), and State Farm Mut. Auto. Ins. Co. v. Acosta, 479 So. 2d 1089 (Miss. 1985). The Mississippi Supreme Court specifically held in Acosta that the "each person" limit applies to all claims arising out of one person's bodily injury. Id. The Acosta court reasoned that because a loss of consortium claim is a derivative action, it should be subject to the same limitations as the claim of the person who actually suffered the bodily injury. Id. The Progressive policy specifically provides that the "each person" limitation applies to derivative claims. Specifically, the uninsured motorist provision reads: If you pay the premium for this coverage, we will pay for damages that an insured person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury: 1) sustained by an insured person; 2) caused by an accident; and 3) arising out of the ownership, maintenance, or use of an uninsured motor vehicle. The "each person" limit of liability includes the total of all claims made for bodily injury to an insured person and all claims of others derived from such bodily injury, including, but not limited to, emotional injmy or mental anguish resulting from the bodily injury of another or from witnessing the bodily injury to another, loss of society, loss of companionship, loss of service, loss of consortium, and wrongful death. 5

11 Progressive policy Part III - Uninsured Motorist Coverage, p. 9; Pait III - Uninsured Motorist Coverage, Limits of Liability, p. 12 ( emphasis added) (R. 95, 98). The Progressive policy clearly and unambiguously limits the total of all claims and all derivative claims arising out of the bodily injury of one person to the "each person" coverage limit. 1 Id. Again, the Progressive policy language is enforceable under Mississippi law. The Mississippi Supreme Court has specifically held that a family member's loss of consortium claim is derived from the claim of the person who suffered bodily injury in an accident and, as such, is subject to the per person limit under an applicable insurance policy. Acosta, 479 So. 2d at In Acosta, Donna Acosta was severely injured when she was hit by an uninsured motorist while driving an insured vehicle. Id. at Donna's mother, Betty Acosta, did not sustain any bodily injury in the accident, but she did make a claim under Donna's uninsured motorist coverage for loss of consortium damages incurred because of Donna's injury. Id. The State Farm uninsured motorist policy at issue in Acosta had language similar to that in the Progressive policy in the instant case. It said that State Farm agreed: Id. at [t]o pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an insured motorist vehicle because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such insured motorist vehicle. The limit of liability stated in the declai ations as applicable to "each person" is the limit of the company's liability for all damages, including damages for care and loss of services, ai ising out of bodily injury sustained by one person in ai1y one accident, and subject to this provision, the limit of liability stated in the declarations as applicable to "each accident" is the total limit of the company's liability for all such damages for bodily injury sustained by two or more persons in any one accident. The declarations page of the Progressive policy lists the motorcycle as the only vehicle covered under the policy, and it specifies that the policy's Uninsured/Underinsured Motorist limits are $25,000 per person and $50,000 per accident. Id at Declarations Page. 6

12 The Acosta comt interpreted this limiting language to mean that Betty Accosta, who did not sustain a bodily injury in the accident, was subject to the same $10,000 "each person" limits as her daughter. Id. Since the daughter had already been paid $10,000 under the policy, the Mississippi Supreme Cou1t held that Betty could not separately recover under the uninsured motorist policy. Id. The comt established the general rule that, where a policy specifically makes such a limitation, a person who is making a claim under the uninsured motorist coverage section of an auto policy, but who did not sustain bodily injury in the accident, is subject to the same "each person" limit as the person who actually sustained bodily injury. Id.; see Reid, 784 F. 2d at 578 (holding that husband's loss of consortium claim was subject to same per person limitation applicable to his wife's claim). The Progressive policy in the instant matter contains the same substantive language as the Acosta policy. The Progressive policy specifically provides for coverage of"loss of consortium" and similar derivative claims under the uninsured motorist coverage part, but it also limits recovery for such claims to the "each person" limit of the person who sustained the bodily injury. Therefore, the maximum amount under the policy that could be collectively recovered by Richard and Beth Rylee for claims arising out of Richard's bodily injuries is $25,000, and Beth Rylee cannot recover independently under the "per accident" limit. The appellants do not address the Acosta decision but instead argue that Beth Rylee's loss of consortium claim is not derivative but "separate and distinct" such that it is subject to its own separate limit ofliability. While it may be true that a loss of consortium claim is distinct in the sense that "[t]he spouse seeking compensation for loss of consortium must show that he or she suffered damages arising out of the other's injuries," see Coho Resources, Inc. v. McCarthy, 829 So. 2d 1, 22 (Miss. 2002), a loss of consortium claim is by definition a "derivative" action. See, 7

13 e.g., Choctmv, Inc. v. Wichner, 521 So. 2d 878, 882 (Miss. 1988) (holding that loss of consortium claims are derivative actions "subject to all defenses that would have been available against the injured person"). The policy itself specifically lists "loss of consortium" as a "claim[] of others derived from such bodily injury." See Progressive policy Part III- Uninsured Motorist Coverage, p. 9; Part III - Uninsured Motorist Coverage, Limits of Liability, p. 12 ("all claims of others derived from such bodily injury, including, but not limited to, emotional injury or mental anguish resulting from the bodily injury of another or from witnessing the bodily injury to another, loss of society, loss of companionship, loss of service, loss of consortium, and wrongful death." (emphasis added)) (R. 98). Under both Mississippi case law and the Progressive policy language, Beth Rylee's claim is derivative of Richard Rylee's bodily injury claim, and is, thus, subject to Richard Rylee's per person coverage limits. CitingPearthree v. Hartford Acc. & Indemnity Co., 373 So. 2d 267 (Miss. 1979), the appellants alternatively argue that if Beth Rylee's claim is derivative, the Mississippi Supreme Court has recognized the ability of an insured to pursue a derivative claim subject to separate "per person" limits in wrongful death actions. This action, however, is not a wrongful death action, and, thus, Pearthree is distinguishable. More importantly, Acosta is indistinguishable and controlling; again, in Acosta, the Mississippi Supreme Court held that where, as here, a policy specifically limits recovery for derivative claims to the "each person" limit of the person who sustained the bodily injury, a person, such as Beth Rylee, who is making a claim under the uninsured motorist coverage section of the auto policy, but who did not sustain bodily injury in the accident, is subject to the same "each person" limit as the person who actually sustained bodily injmy. Acosta, 479 So. 2d at

14 Moreover, the appellants misconstrue Pearthree. In Pearthree, the Mississippi Supreme Court interpreted an insurance policy's definition of"insured" to determine whether a decedent's daughter, who was entitled to maintain a wrongful death action for the death of her mother, was an "insured" under the mother's insurance policy. The policy defined "insured" as: (a) The named insured and any relative; (b) Any other person while occupying an insured automobile; ( c) Any person with respect to damages he is entitled to recover because of bodily injury to which this Patt applies sustained by an insured under (a) or (b) above. The insurance afforded under Patt IV applies separately to each insured, but the inclusion herein of more than one insured shall not operate to increase the limits of the Company's liability. Pearthree, 373 So. 2d at 271. Focusing on the words "damages he is entitled to recover," which the court held was a reference to the rights arising under tmt law, the court concluded that the decedent's daughter was an "insured" because she was "entitled" to maintain a wrongful death action for her mother's death. Id. Notably, the court did not consider the issue in this case, whether the insurance policy provided separate per person limits for an insured's derivative claim. To the contrary, the Pearthree court held that the insured could recover under the two insurance policies but only to the extent of the per person limits. Id. at 270, 272. The court did not, as the appellants assert, hold that the insured's claim was subject to a separate "per person" limit; the court held that the limits of the two policies could be aggregated or stacked.2 Id. 2 In United States Fidelity & Guaranty Co. v. Pearthree, 389 So. 2d 109 (Miss. 1980) [Pearthree II], which was not cited by the appellants, "the conrt equated 'insured' with 'person."' Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 579 (5 1 1, Cir. 1986). However, that reference has been "markedly restricted, or more probably implicitly overruled." Id ("[Pearthree] may not be viewed in a legal vacuum but must be placed appropriately in the mosaic of the continually evolving substantive law of Mississippi."). Again, the Acosta decision is dispositive; it held that where, as here, a policy specifically limits recovery for derivative claims to the "each person" limit of the person who sustained the bodily injury, a person, such as Beth Rylee, who is making a claim under the uninsured motorist coverage section of the auto policy, but who did not sustain bodily injmy in the accident, is subject to the same "each person" limit as the person who actually sustained bodily injury. Acosta, 479 So. 2d at 1091; see 9

15 The Pearthree court looked to the insurance policy's language to determine coverage. Id. at 271 ("Focusing upon the words 'damages he is entitled to recover'... "). "[I]nsurance policies are viewed as conh acts, and as such, they are to be enforced according to their provisions." Hankins v. Maryland Cas. Co./Zurich Am. Ins. Co., 101 So. 3d 645, 653 (Miss. 2012). "Accordingly, the appropriate analysis should... be driven by... the policy language." Id. (internal quotation marks omitted). "The policy either affords coverage or not, based upon application of the policy language to the facts presented." Id. The appellants point to no language in the policy which supports their argument because there is none. The unambiguous language of the Progressive policy specifically provides: The "each person" limit of liability includes the total of all claims made for bodily injury to an insured person and all claims of others derived from such bodily injury, including, but not limited to, emotional injmy or mental anguish resulting from the bodily injury of another or from witnessing the bodily injury to another, loss of society, loss of companionship, loss of service, loss of consortium, and wrongful death. Progressive policy Part III - Uninsured Motorist Coverage, p. 9; Part III - Uninsured Motorist Coverage, Limits of Liability, p. 12 (emphasis added) (R. 98). Clearly, the Progressive policy limits the total of all claims and all derivative claims arising out of the bodily injury of one person to the "each person" coverage limit. Thus, Progressive's summary judgment should be affinned. B. Progressive's Uninsured Motorist Limit is Reduced by Liability Limit of State Farm Policy. Where, as here, the tortfeasor has a liability policy, the amount owed by Progressive under the uninsured motorist coverage is reduced by the amount of the liability policy. The also Progressive policy Part Ill- Uninsured Motorist Coverage, Limits of Liability, p. 12 (R. 98) ("The 'each person' limit of liability includes the total of all claims made for bodily injury to an insured person and all claims of others derived from such bodily injury... " ( emphasis added)). 10

16 policy states that the limits of liability under the uninsured motorist coverage (Part III) will be reduced by all sums: 1. paid because of bodily injury by or on behalf of any persons or organizations that may be legally responsible; and 2. paid under Part I - Liability to Others. See Exhibit "D," Part III - Uninsured Motorist Coverage, p. 12. This "offset" is recognized and authorized by Mississippi law. The Mississippi Supreme Court held in State Farm Mutual Automobile Insurance Co. v. Kuehling that an uninsured motorist can offset, or reduce, its liability for uninsured motorist benefits by the amount of the tortfeasor's liability limits. 475 So. 2d 1159 (Miss. 1985). InKuehling, the uninsured motorist policy had a Limit of Liability provision similar to the Progressive policy. Id The comt held that where an uninsured motorist policy provides for it, offsetting the to1tfeasor' s liability payments is permitted. Id In the instant matter, the tortfeasor, Jessica Brashier, had an auto policy through State Farm, which had liability limits of $25,000 per person. See R. 80. State Farm tendered the policy's $25,000 limits to Richard Rylee for bodily injuries he sustained in the subject accident. Progressive is permitted to offset its uninsured motorist benefits by the $25,000 liability limit of State Farm. 3 After offsetting State Farm's $25,000 liability limit against Progressive's $25,000 uninsured motorist limit, the uninsured motorist coverage is reduced to $0. Therefore, there is no possibility that Beth Rylee could recover any amount under the Progressive policy for her derivative claim. The appellants concede Progressive's right to set-off, yet they suggest that they are entitled to recover from Progressive because the $25,000 State Farm policy did not sufficiently 3 The Ry lees' excess uninsured motorist carrier, USAA, has tendered the stacked per person limits of $50,000 under that policy. Since the coverage was excess, USAA did not apply the State Farm liability coverage offset. Id. 11

17 compensate them for their injuries. However, Mississippi case law is clear that Progressive is entitled to its right to set-off even if the appellants will not be "made whole." In United States Fidelity and Guaranty.Company v. Ferguson, 698 So. 2d 77 (Miss. 1997), the Mississippi Supreme Court held that an uninsured motorist carrier is permitted to offset liability payments tendered to its insured under the tortfeasor' s liability policy even if doing so would prevent the insured from being made whole, or totally compensated for damages. Id. at 81. In Ferguson, the insured argued that her damages exceeded the tortfeasor's total liability limits as well as her uninsured motorist carrier's limits, and that even if she received the full limits of both coverages, she would still not be made whole and fully compensated for her damages. Id. Thus, she argued that USF & G should not be allowed to offset the tortfeasor' s liability limits and reduce its uninsured motorist coverage by the amount of liability payments. 4 The Mississippi Supreme Court disagreed. Id. The Mississippi Supreme Court ruled that an uninsured motorist carrier is still allowed to offset the tortfeasor' s liability payments to the insured, even if doing so would prevent the insured from being made whole and fully compensated. Id. at Accordingly, to the extent the appellants claim that they are entitled to recover against Progressive because their injuries were not fully compensated by the available uninsured motorist coverages, that argument is not relevant to the legal analysis. 4 The entire offset is due to Progressive because Progressive insured the accident vehicle. US. Fid & Guar. Co. v. John Deere Ins. Co., 830 So. 2d 1145, 1148 (Miss. 2002)("The longstanding rule in Mississippi is that the insurer for the owner of the vehicle involved in the accident is the primary insurer."); Dixie Ins. Co. v. State FarmMut. Auto. Ins. Co., 614 So. 2d 918, (Miss. 1992) ( concluding that "[t]he trial court correctly held that the primary insurer was entitled to offset first" and "acted properly in denying pro-ration of the offset provision of the primary insurer's policy of insurance"). 12

18 CONCLUSION Through this appeal, the appellants attempt to rewrite the subject insurance contract to provide coverage that simply does not exist. Analyzing the subject policy language, the policy clearly and unambiguously limits the total of all claims and all derivative claims arising out of the bodily injury of one person to the "each person" coverage limit. The policy does not provide a separate limit ofliability for Beth Rylee's derivative claim. After offsetting the liability limits paid to Richard Rylee by State Fatm, Progressive does not owe any additional coverage for either Richard Rylee's claim or Beth Rylee's derivative claim, and, thus, the sunnnaty judgment should be affirmed. DATED: July 20, Respectfully submitted, PROGRESSIVE GULF INSURANCE COMPANY OF COUNSEL: WATSON HEIDELBERG JONES PLLC 2829 Lakeland Drive, Suite 1502 Flowood, Mississippi P.O. Box Jackson, Mississippi (direct) (general) (fax) mheidelberg@whipllc.com BY: Isl C. Maison Heidelberg C. MAISON HEIDELBERG, MB#

19 CERTIFICATE OF SERVICE I, C. Maison Heidelberg, of counsel for Progressive Gulf Insurance Company, do hereby certify that I have this day served via the comi' s electronic filing system a copy of the above and foregoing to: Chuck McRae Seth Little Christopher A. Babach MCRAE LAW FIRM 416 East Amite Street Jackson, MS Edward C. Taylor Kristi Brown DANIEL COKER HORTON & BELL, P.A. P.O. Box416 Gulfp01i, MS Dawn Davis Carson Jason Hollingsworth HICKMAN, GOZA & SPRAGINS, PLLC Post Office Box Memphis, TN VIA US MAIL Honorable Richard McKenzie P.O. Box 1403 Hattiesburg, MS THIS, the 20th day of July, Isl C. Maison Heidelberg C. MAISON HEIDELBERG 14