author: PAINTER, Judge. PICKETT, J.,

text:
    Michael P. TYLER, et al v. Joseph DEJEAN, et al.
    No. 12-1421.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 7, 2013.
    Rehearing Denied Oct. 2, 2013.

      Thomas R. Edwards, Lafayette, LA, for Plaintiffs-Appellees, Michael Tyler and Ivory Thomas.
    Joshua J. Pitre, Opelousas, LA, for Plaintiff-Appellee, Felicia Guilbeau Rushing.
    Daniel R. Atkinson, Jr., Baton Rouge, LA, for Defendants-Appellants, Peerless Indemnity Insurance Company and America First Insurance Company.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| defendants, Peerless Indemnity Company (Peerless) and America First Insurance Company (AFI), appeal the trial court’s grant of Plaintiffs’ motion for summary judgment and the denial of their motion for summary judgment, finding that Plaintiffs were insured under both the general liability portion of Defendants’ policies and the uninsured/underinsured portions of the policies, and that the umbrella policy provides coverage. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On October 9, 2008, a pickup truck belonging to Bellevue Memorial Park (Belle-vue) and insured by Peerless and AFI, was parked on the western shoulder of the southbound lane of Louisiana Highway 182 in front of Bellevue. Three Bellevue employees, Michael Tyler, Ivory Thomas, and Adrian Rushing (the employees), were standing near the truck. Joseph Dejean was driving his van northbound on Highway 182. He lost control of his vehicle, crossed the southbound lane and the western shoulder of the highway, and went into a ditch hitting the three Bellevue employees. Rushing died at the scene of the accident. Tyler was thrown through the window of the Bellevue truck, and Thomas was thrown down the road. Both of the survivors incurred serious injuries.

Tyler, Thomas, and Rushing’s widow, Felicia Rushing, filed suit, naming as defendants, among others, Peerless and AFI, because Dejean was underinsured. Peerless and AFI had in effect a policy of commercial automobile liability insurance including uninsured/underinsured motorist coverage. AFI also had in effect a commercial umbrella policy. Peerless and AFI originally filed a motion for 12summary judgment which was denied on March 19, 2010. This court denied the application for writs filed in connection with that denial. On December 15, 2011, Defendants again filed a motion for summary judgment regarding coverage under the policies, and Plaintiffs filed a cross motion for partial summary judgment. The trial court denied Defendants’ motion and granted Plaintiffs’ motion. Defendants appeal.

DISCUSSION

Summary Judgment

Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Cutsinger v. Redfern, 08-2607 (La.5/22/09), 12 So.3d 945, 949 (citing Bonin v. Westport Ins. Corp., 05-0886 (La.5/17/06), 980 So.2d 906, 910). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B); Cutsinger, 12 So.3d at 949. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Cutsinger, 12 So.3d at 949. Thus, we ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Cutsinger, 12 So.3d at 949 (citing Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 750).

Interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved by a motion for summary judgment. Id. (citing Bonin, 930 So.2d at 910). An insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Civil Code. Magnon [v. Collins], 739 So.2d [191] at 196 [ (La.1999) ] (citing Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759). An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Id. Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume. Id. If the policy wording at issue is clear and unambiguously expresses the parties’ intent, the insurance contract must be enforced as written. Id. at 197; La. C.C. art. 2046. When the language of an insurance policy is clear, courts | Jack the authority to change or alter its terms under the guise of interpretation. Magnon, 739 So.2d at 197 (citing Louisiana Ins. Guar. Ass’n., 630 So.2d at 764). A court should only grant the motion for summary judgment when the facts are taken into account and it is clear that the provisions of the insurance policy do not afford coverage. Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827 (La.5/22/07), 958 So.2d 634, 638 (citing Reynolds v. Select, 93-1480 (La.4/11/94), 634 So.2d 1180, 1183).

Uninsured motorist coverage embodies a strong public policy, which is to provide full recovery for innocent automobile accident victims who suffer damages caused by a tortfeasor who has no coverage or is not adequately covered by liability insurance. Cutsinger, 12 So.3d at 949 (citing Duncan v. U.S.A.A. Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544, 547). The underlying purpose of uninsured motorist coverage “is to promote and effectuate complete reparation, no more or no less.” Id. (citing Hoefly v. Government Employees Ins. Co., 418 So.2d 575, 579 (La.1982)). To carry out the objective of providing reparation for persons injured through no fault of their own, the statute is liberally construed. Id. at 949-50 (citing Taylor v. Rowell, 98-2865 (La.5/18/99), 736 So.2d 812, 816; Roger v. Estate of Moulton, 513 So.2d 1126, 1130 (La.1987)). Any exclusion in uninsured motorist coverage must be clear and unmistakable. Id. at 950 (citing Duncan, 950 So.2d at 547).

Bernard v. Ellis, 11-2377, pp. 9-10 (La.7/2/12), 111 So.3d 995, 1002-03.

Commercial Automobile Liability Policy

Defendants cite the provisions of the UM portion of the policy as excluding coverage, as follows:

A. Coverage
We (Insurer) will pay all sums the 'insured’ is legally entitled to recover as compensatory damages from the owner or driver of an ‘uninsured motor vehicle’. The damages must result from 'bodily injury’ sustained by the ‘insured’ caused by an ‘accident’. The owner’s or driver’s liability for these damages must result from the ownership, maintenance, or use of the ‘uninsured motorist vehicle’.
B. Who is an Insured
1. You
2. If you are an individual, any ‘family member’.
3. Anyone else ‘occupying’ a covered ‘auto’ or a temporary substitute for a covered ‘.auto’. The covered auto must be out of service because of its breakdown, repair, servicing, loss or destruction.
|44. Anyone for damages because he or she is entitled to recover because of ‘bodily injury”, sustained by another ‘insured’.

The UM portion of the policy defines insured as you or “[ajnyone else ‘occupying’ a covered ‘auto’ or a temporary substitute for a covered ‘auto’.” Occupying is defined as “in, upon, getting in, on, out or off.” However, the Louisiana Uninsured Motorist Statute, La.R.S. 22:1295, requires that UM coverage be extended to anyone insured under the general liability portion of a policy of insurance. Therefore, if the employees are insured under the general liability policy, they are entitled to UM coverage under the Peerless policy.

The general liability portion of the policy defines “insured” as follows:

A. Coverage
We will pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto”.
1) Who is an Insured?
The following are ‘insureds’
a. You for any covered ‘auto’.
b. Anyone else while using with your permission a covered ‘auto’ you own, hire or borrow except:
(1) the owner or anyone else from whom you hire or borrow a covered ‘auto’. This exception does not apply if the covered ‘auto’ is a ‘trailer’ connected to a covered ‘auto’ you own.
(2) Your employee if the covered ‘auto’ is owned by that employee or a member of his or her household.
(3) Someone using a covered ‘auto’ while he or she is working in a business of selling, servicing, repairing, parking or storing ‘autos’ unless that business is yours.
(4) Anyone other than your employees, partners, a lessee or borrower or any of their | fiemployees, while moving property to or from a covered ‘auto’.
(5) A partner of yours for a covered ‘auto’ owned by him or her or a member of his or her household.

Defendants assert that the employees were not insureds under the terms of the general liability portion of the policy because of the following language:

B. EXCLUSIONS
This insurance does not apply to any of the following:
3. Workers’ Compensation
Any obligation for which the ‘insured’ or the ‘insureds’ insurer may be held liable under any workers compensation, disability benefits or unemployment compensation law or any similar law.
4. Employee Indemnification and Employers Liability
‘Bodily injury’ to:
a. An employee of the ‘insured’ arising out of and in the course of employment by the ‘insured’, or
b. The spouse, child, parent, brother or sister of that employee as a consequence of paragraph a above

However, this court in Hoey v. Shelter General Ins. Co., 98-178, pp. 4-5 (La.App. 3 Cir. 6/3/98), 715 So.2d 512, 515 considered the case of an employee injured in a rear end collision while test driving an automobile being repaired at his employer’s business. This court, faced with similarly worded exclusions, found as follows:

Shelter contends that its exclusions for liability arising out of injuries to employees in the course and scope of their employment or for which the insured may be liable under workers’ compensation laws disqualify Hoey from recovery under the policy. This court addressed this precise question in Collins v. Angelina Cas. Co., 517 So.2d 990 (La.App. 3 Cir.1987), writ denied, 519 So.2d 106 (La.1987). In Collins, addressing virtually identical exclusions in a business automobile insurance policy, we concluded that not all provisions of a |fipolicy will apply to uninsured motorist coverage. We noted that in some cases courts simply declare such provisions invalid or unenforceable, reasoning that the mandatory requirement of uninsured motorist coverage cannot be undercut or restricted by policy provisions. Collins, 517 So.2d 990. Accordingly, we find that the exclusions relied on by Shelter do not apply to uninsured motorist coverage.

Therefore, the language cited by Defendants does not work to exclude the employees from UM coverage.

The general liability portion of the policy defines “insured”, in pertinent part, as: “You for any covered ‘auto’ ” and as “Anyone else while using with your permission a covered ‘auto’ you own, hire or borrow.”

Defendants contend that questions of fact remain with regard to whether the employees were using the truck when the accident occurred such that they can be considered insured under the policy. Defendants argue that the truck was not in use regardless of whether the employees had loaded the truck or not, because they were not driving or riding in the vehicle.

In support of their motions, the parties offered deposition testimony. Trooper Nicholas Shittone of the Louisiana State Police was the officer who responded to the accident. He stated in deposition that he was informed of the accident at 10:38 in the morning and arrived at the scene at 10:57. His report indicated that there were weedeaters in the truck and trash bags still on the ground. Photos taken of the area in connection with the police investigation of the accident show trash bags on the side of the road. Trooper Shittone stated in deposition that he didn’t know if the bags were in the truck or on the side of the road at the time of the accident. He stated that there was a rake on the side of the road and trash bags that appeared to have been run over. The photographs of the truck do not show the inside of the cargo area of the pickup truck, and the bed of that area is not visible.

|7Joseph Wayne Singleton was an eyewitness to the accident, having been in traffic behind the driver of the van that ran over the employees. He testified that he saw people standing about five feet from the cemetery truck on the side of the road and that he saw the van run over them. He stated that it looked like they were working but that everything happened so fast, he did not have time to see. He stopped his vehicle and got out to see if he could help and saw garbage bags on the ground. He testified that he did not look inside the truck.

Dionne Thomas was also an eyewitness to the accident. She stated that she saw the van hit men who were working on the side of the road. She got out of her vehicle to see if she could help and saw shoes and work gloves on the highway and tools all over the place. She stated that there were trashbags on top of the men and rakes and gloves in the road. She testified that the tailgate of the cemetery truck was down but that she didn’t notice what, if anything, was in the back of the truck.

Joseph Romero was another eyewitness to the accident. He stated that one of the employees could not have been more than a couple of feet from the cemetery truck prior to the accident. He also stopped his vehicle and got out to see if he could help. He stated that the tailgate of the cemetery truck was down and that there was a weedeater and bags of trash in the bed of the truck as well as one bag of trash beside the truck.

Thomas was a groundskeeper for Belle-vue and is one of the Plaintiffs in this suit. He testified that he and the others had been cleaning an area of the cemetery for twenty or thirty minutes. Tyler got the truck from the hill where it had been parked and told them what they would be doing next. He remembered taking wee-deaters and trash to the back of the truck and stated that they put the tools and trash in the truck so that they could go to the next place they were to clean. He [ ^remembered putting his gloves, mask, and glasses in the truck because he always did this. After that he remembered nothing.

Tyler, Plaintiff herein, testified that he and the other employees used the truck in the cemetery to haul equipment such as weedeaters and rakes and that they attached a trailer to it to haul riding mowers. He stated that, on the day of the accident, they had cleaned the ditch area and had only a couple of bags of trash. He went up the hill to move the truck to the side of the road so that they could pick up the bags of trash. He stated that he got out and went around the truck to tell the others what they were going to do next in another part of the cemetery. They had put the rakes and weedeaters in the back of the truck, but he had not finished explaining the next job. However, he remembered nothing after that.

Caroline Wimberly worked selling plots, mausoleums, and markers for Bellevue. John Rex Edwards, part owner of Belle-vue, called her and told her about the accident. She and another woman from the office went to the scene. She stated that from where she was standing, she could see into the back of the truck and that there were weedeaters, trash, and rakes in the truck. She stated that if the tailgate was up, the items had to be sticking over the back. When confronted with the pictures showing the back of the truck, she said she thought that she had seen the weedeaters and trash. She stated that Thomas told her that he was holding a bag of trash and walking to put in the back when struck.

Edwards testified in deposition that when he arrived at the scene of the accident, there were bags stacked in the back of the truck as well as two or three wee-deaters and a leaf blower. He testified that the employees were constantly working in and out of the truck.

The question of use herein presents a mixed question of law and fact. However, if no question of fact remains as to the activities of the employees on the | aday of the accident, summary judgment is proper. See Bob v. Benoit, 96-04 (La.App. 3 Cir. 5/8/96), 673 So.2d 1321; Palermo v. Audubon Ins. Co., 96-887 (La.App. 3 Cir. 2/5/97), 689 So.2d 589; Simon v. Orange Leader Newspaper, Inc., 94-589 (La.App. 3 Cir. 12/7/94), 647 So.2d 624.

We must determine whether the facts currently before us present two interpretations from which the trial court could chose or whether those facts are sufficient to allow a determination as to whether the employees were using the vehicle. In other words, what the employees were doing is a question of fact; whether those actions constitute use is a question of law.

[Sjummary judgment is appropriate when all the relevant facts are mar-shalled before the court, the marshalled facts are undisputed, and the only issue is the ultimate conclusion to be drawn from those facts. Cates [v. Beauregard Elec. Co-op., Inc.], 328 So.2d [367] at 370 [ (La.1976) ] (reasoning that “[f]rom the uncontroverted facts before us, we can reach no other conclusion under the present state of the law” to resolve contributory negligence issue on summary judgment); Sally Beauty Co. v. Barney, 442 So.2d 820, 822 (La.App. 4th Cir. 1983) (summary judgment granted on intent issue when “no uncertainties that require the trial court to go beyond the evidence”); Johnson v. Edmonston, 383 So.2d 1277, 1281 (La.App. 1st Cir.1980) (summary judgment appropriate when based on review of undisputed facts reasonable men could only conclude movers were not negligent); Hamilton v. State Farm Mutual Automobile Ins. Co., 364 So.2d 215, 218 (La.App. 3d Cir.1978), writ denied, 366 So.2d 915 (La.1979) (insurer’s summary judgment motion granted on residency issue where evidence before court “without dispute and contains every fact material and necessary to a determination of plaintiffs residency at the time of accident”); Bouterie v. Kleinpeter, 289 So.2d 163, 168 (La.App. 1st Cir.1973), writ denied, 293 So.2d 169 (La.1974) (noting that merely because dispute exists as to conclusion to be drawn from facts does not preclude summary judgment); Ocmond v. Eserman, 259 So.2d 600 (La.App. 4th Cir.), writ denied, 261 La. 825, 261 So.2d 230 (1972) (finding summary judgment evidence presented no factual contradictions “only conflicting conclusions based on those facts”).

Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, pp. 29-30 (La.7/5/94), 639 So.2d 730, 752.

1 inThe facts herein have been marshaled, and there is no suggestion that further facts will be adduced at trial. We must determine whether the law supports the conclusion that the employees were using the truck based on the facts in evidence.

The jurisprudence has consistently found that “use” of a vehicle is not limited to “operation” of a vehicle. Louisiana circuit courts have previously found that an occupant of a vehicle is “using” the vehicle. See, e.g., Stunkard v. Langlinais, 97-1006 (La.App. 3 Cir. 2/4/98), 708 So.2d 1117; Cagle v. Playland Amusement Inc., 202 So.2d 396 (La.App. 4th Cir.1967); Garvey v. Great Atlantic & Pacific Tea Co., 125 So.2d 634 (La.App. 4th Cir.1961); Bolton v. North River Ins. Co., 102 So.2d 544 (La.App. 1st Cir.1958). This view is also widely supported by national jurisprudence. See 8 Couch on Insurance 3d, §§ 111.31, 119.37 (2011) (citing a multitude of national jurisprudence). “When ‘use’ is distinguished from ‘operation,’ it has been held that the former denotes the purpose for which the automobile was employed while the latter refers to its actual physical operation or manipulation of controls.” Id. at § 119.37. “The term ‘use’ is a broad catchall designed to include all uses of the vehicle not falling within the terms ‘ownership’ or ‘maintenance,’ and involves simply employment for the purposes of the user.” Id. Therefore, we hold the word “use” has a broader meaning than operation of the vehicle and generally includes any use of a vehicle related to its inherent purpose. The Plaintiffs, who were riding as guest passengers in the vehicle, were clearly using the vehicle in a manner related to the vehicle’s inherent purpose (i.e., as a means of transportation).

Bernard, 111 So.3d at 1003.

We conclude that the employees’ activities constitute a use of the truck related to its inherent purpose. This truck was not used solely as individual transportation, and transportation for human beings is not the only activity which can constitute use of the truck. The truck was integral to the work of cleaning up the cemetery. Although there is conflicting evidence as to the location of the tools and bags of trash, the testimony makes it clear that the employees were in the process of using the truck to take them tools and the trash they had gathered to another part of the cemetery. They had not abandoned that activity to take up another activity unrelated to the task of loading the truck and moving to another location. There is no evidence of record to suggest that the employees were |nundertaking other work at the side of the road. The truck was on the side of the road solely to allow it to be loaded with tools and trash and to take those items and the employees to another location for further work. But for the need to use the truck, the employees would not have been on the side of the road. Had they not been doing this, they would not have been injured.

Therefore, we conclude that no question of fact remains and that the employees are insured as defined by the general liability portion of the policy and, therefore entitled to UM benefits.

Commercial Umbrella Policy

The original commercial umbrella policy issued to Bellevue by AFI states in Section 1 — Coverage:

A. INSURING AGREEMENT
1. We will pay on behalf of the insured those sums in excess of the Retained Limit that the insured becomes legally obligated to pay as damages because of Bodily Injury, Property Damage, Personal Injury or Advertising Injury to which this insurance applies. No other obligation or liability to pay sums.
2. This insurance applies only to:
a. Bodily Injury or Property Damage:
(1) Occurring during the Policy Period; and
(2) Caused by an Occurrence that takes place in the Coverage Territory; and
b. Personal Injury:
(1) Caused by an Offense arising out of the conduct of your business excluding advertising, publishing, broadcasting or telecasting done by you or for you; but
(2) Only if the Offense was committed in the Coverage Territory during the Policy Period; and
c.Advertising Injury:
11⅞(1) Caused by an Offense committed in the course of advertising your goods, products or services; but
(2) Only if the Offense was committed in the Coverage Territory during the Policy Period.
3. Damages because of Bodily Injury include damages claimed by any person or organization for care, loss of services or death resulting at any time from the Bodily Injury.
4. The amount we will pay for damages is limited as described in SECTION III — LIMITS OF INSURANCE.
Under Section C. EXCLUSIONS, the policy provides as follows:
1. This insurance does not apply: a. To liability imposed on the insured under any of the following laws:
(4) Automobile no-fault, uninsured motorists or underinsured motorists law[.]

A number of endorsements to the policy were attached to it.

Defendants assert that the umbrella policy specifically excludes 1) umbrella coverage for bodily injury “to an employee of the insured arising out of and in the course of employment by the insureds; or ... the spouse, child, parent, brother or sister of that employee as a consequence of (1) above;” and 2) coverage for liability imposed on the insured under automobile no-fault, uninsured motorist, or underinsured motorist law.

1) “Course of employment” exclusion.

Although Defendant asserts that the endorsement excludes coverage for all injuries to employees in the course and scope of their employment, a | ^reading of the endorsement shows otherwise. Endorsement 14-82 (2/93) reads as follows:

Unless applicable, valid and collectible insurance is provided by Underlying Insurance and then only to the extent of the coverage afforded by that Underlying Insurance and subject to Condition S. — Maintenance of Underlying Insurance, this insurance does not apply to Bodily Injury:
(1) To an employee of the insured arising out of and in the course of employment by the insured; or
(2) The spouse, child, parent, brother or sister of that employee as a consequence of (1) above.

Therefore, this provision applies to exclude coverage for injury arising out of the course and scope of employment only where no underlying coverage exists. Here, we have found that Bellevue’s UM coverage applies. Therefore, the injury to the employees is not subject to this exclusion.

2) UM exclusion.

Defendants further point to the following language in Endorsement 14-139 (9/02) as excluding coverage for liability imposed under UM law:

A. Section l.C Exclusion, subpara-graph l.a.(4) is amended to read:
1. This insurance does not apply: a. To liability imposed on the insured under any of the following laws:
(4) Automobile uninsured or under-insured motorist law other than the compensatory damaged the insured is legally entitled to recover from the owner or driver of an Uninsured Motor Vehicle for which coverage is provided by Section B. of this endorsement.

However, Section B of the Endorsement adds the following language to Section 1.A of the Insuring Agreement:

1. We will pay those sums in excess of the Retained Limit that the insured is legally entitled to recover as compensatory 114damages from the owner or driver of an Uninsured Motor Vehicle resulting from Bodily Injury sustained by the insured caused by an occurrence. The owner’s or driver’s liability for these damages must result from the ownership, maintenance or use of the Uninsured Motor Vehicle.
2. This insurance applies only to the extent of coverage afforded by applicable, valid and collectible Underlying Insurance subject to Condition S., Maintenance of Underlying Insurance.

The policy defines “Retained Limit” as “the total amount of Underlying Insurance applicable to the injury ... whether such Underlying Insurance is collectible or not.”

We have found that the employees are entitled to collect under Bellevue’s underlying UM policy. Further, Section A of this endorsement provides that the insurance excludes liability for UM except as provided in Section B of the endorsement. Therefore, the trial court correctly found that no question of fact remains and that the umbrella policy provides coverage to the extent that the damages imposed are in excess of the underlying UM coverage.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Defendants, Peerless and AFI.

AFFIRMED.

PICKETT, J., dissents and assigns written reasons.

EZELL, J., dissents for reasons assigned by Judge PICKETT.

PICKETT, J.,

dissenting.

I respectfully dissent. Given the facts presented at the hearing on the motion for summary judgment, I find there is a genuine issue as to whether the employees were using the vehicle at the time of the accident. I would reverse the judgment of the trial court finding coverage in the commercial automobile liability policy and the commercial umbrella policy, and remand for a trial.

      . The commercial automobile liability policy states that it was marketed through AFI and that coverage is provided in Peerless.

      . We note that while Defendants refer to endorsement numbers, we find no endorsements designated with those numbers which contain the language quoted by Defendants. Further, Defendants have not referred to the quoted language or the endorsement by record volume and page. "The argument on a specification or assignment of error in a brief shall include a suitable reference by volume and page to the place in the record which contains the basis for the alleged error. The court may disregard the argument on that error in the event suitable reference to the record is not made.” Uniform Rules — Courts of Appeal, Rule 2-12.4. For reasons of judicial economy, we will consider the assignment of error. In spite of the deficiency.


source: Caselaw Access Project

author: WALLER, Chief Justice,

license: Public Domain

text:
    CITY OF BELZONI, Mississippi v. Shirley JOHNSON.
    No. 2012-CA-00950-SCT.
    Supreme Court of Mississippi.
    Sept. 12, 2013.

      Stephanie N. Morris, attorney for appellant.
    S. Craig Panter, Ronald E. Stutzman, Jr., Jackson, attorneys for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. Shirley Johnson sued the City of Belzoni and two city employees for employment discrimination and sexual harassment. A Humphreys County jury rendered a verdict in Johnson’s favor, resulting in monetary judgments against each of the three defendants, severally. The defendants appealed, and this Court affirmed the verdict. The City now appeals from the circuit court’s order granting Johnson’s motion to enforce the defendants’ supersedeas bond against the City alone. Finding that the trial court erred in enforcing a deficient supersedeas bond against the City to satisfy the judgments against the two codefendants, we reverse and render.

FACTS & PROCEDURAL HISTORY

¶ 2. Shirley Johnson began working as a patrol officer for the City of Belzoni in 2004, and she was the only female officer on the force at the time. In 2006, Johnson filed suit against the City, Chief of Police Mickey Foxworth, and police officer David James, claiming she had been subjected to gender discrimination, including sexual harassment, in the workplace. The three defendants were represented by the same attorney. At the conclusion of the trial, the jury returned a verdict in Johnson’s favor, awarding her $50,000 against each of the three defendants, severally. In addition, the trial court awarded attorney’s fees and litigation expenses to Johnson, allocated equally among the defendants. On October 28, 2010, the trial court entered its final judgment of $213,734.88, ordering each defendant to pay $71,244.96 to Johnson.

¶3. On November 18, 2010, the defendants submitted an “Appeal Bond to Supreme Court with Supersedeas” to the circuit clerk. The bond was submitted by “City of Belzoni, et al.,” and signed by Stephanie N. Morris, “Attorney for Appellants.” The specific language of this su-persedeas bond is the focus of the City’s appeal. The bond states, in relevant part:

KNOW ALL BY THIS BOND, that we, the City of Belzoni, as principal and as an Agency of the State of Mississippi, are held and firmly bound unto Plaintiff Shirley Johnson, or her administrators, executors, successors or assigns, in the total penal sum of $213,734.88, payable by three severally by the City of Belzoni, Mickey Foxworth and David James, for which payment to be made, we bind ourselves, our successors and assigns, jointly and severally.

(Emphasis added.) The circuit clerk approved the bond, and the defendants prosecuted their appeal with this Court. This Court affirmed the judgment in favor of Johnson on February 16, 2012. See City of Belzoni v. Johnson, 80 So.3d 99, 102 (Miss.2012).

¶ 4. Once this Court’s decision was final, Johnson served a writ of garnishment on the City’s bank and acquired payment for the City’s one-third portion for the judgment. Johnson then moved the circuit court to enforce the rest of the judgment against the City. In her motion, Johnson claimed that, by posting the supersedeas bond, the City had bound itself to her for the entire judgment, not just the one-third originally allocated to it. In response, the City argued that the language of the bond merely reflected each defendant’s obligation under the initial judgment, with each defendant remaining one-third liable. On May 16, 2012, the Humphreys County Circuit Court ruled that, pursuant to the language of the supersedeas bond, the City had bound itself to Johnson not only for its one-third of the judgment, but also for the two-thirds owed by the other two defendants. Accordingly, the court granted Johnson’s motion to enforce the supersede-as bond against the City.

¶ 5. Aggrieved by the trial court’s order, the City has appealed to this Court, raising the following issues:

I. Whether the City of Belzoni is a surety under the laws of Mississippi.
II. Whether the lower court erred in enforcing a deficient superse-deas bond.
III. Whether an elected or appointed municipal official can bind a municipality to a contract not authorized by the Board of Alderman and not reflected in its minutes.

We limit our review to the first two issues only, finding them to be dispositive. Miss. R.App. P. 17(h).

STANDARD OF REVIEW

¶ 6. A supersedeas bond is a contract. See Shoebridge v. Will C. Hartwell Realty & Ins. Co., 244 Miss. 630, 143 So.2d 432, 434 (1962) (holding that sureties are “bound by their contract” to stand hable for the principal). “Questions concerning the construction of contracts are questions of law that are committed to the court rather than questions of fact committed to the fact finder.” Miss. St. Highway Comm’n. v. Patterson Enters. Ltd., 627 So.2d 261, 263 (Miss.1993) (citing Leach v. Tingle, 586 So.2d 799, 801 (Miss.1991)). We therefore employ the de novo standard of review to the trial court’s construction of the supersedeas bond.

DISCUSSION

I. The City of Belzoni does not qualify as a surety under the Rules of Appellate Procedure.

¶ 7. While a bond is not required to perfect an appeal, Mississippi law has long required unsuccessful litigants to post a bond to stay the judgment of the lower court during an appeal. “The law requiring security by bond for appeals with su-persedeas rests upon the just principle that the successful litigant shall be saved harmless from loss, and secured in the fruits of his victory .... [T]he status quo [should] be maintained until a final decision is rendered in the cause.” Aetna Ins. Co. v. Robertson, 127 Miss. 440, 90 So. 120 (1921). Currently, Rule 8 of the Mississippi Rules of Appellate Procedure governs the procedure by which an appellant can receive a stay of judgment while pursuing an appeal. The rule provides:

The appellant shall be entitled to a stay of execution of a money judgment pending appeal if the appellant gives a super-sedeas bond, payable to the opposite party, with two or more sufficient resident sureties, or one or more guaranty or surety companies authorized to do business in this state, in a penalty of 125 percent of the amount of the judgment appealed from, conditioned that the appellant will satisfy the judgment complained of and also such final judgment as may be made in the case.

Miss. R.App. P. 8(a) (emphasis added). A surety company must be incorporated or organized for the purpose of transacting business as surety on obligations of persons or corporations, (Miss.Code Ann. § 83-27-1 (Rev.2011)), and must have at least $100,000 of its paid-up capital invested in solvent securities created under the laws of the United States or the state in which the company is incorporated. Miss. Code Ann. § 83-27-5 (Rev.2011). A surety company also must present to the court satisfactory evidence of its compliance with the statutory requirements for surety companies. Miss.Code Ann. § 83-27-3 (Rev. 2011). The City does not meet these statutory requirements to qualify as a surety company. Therefore, this Court must determine whether the City can be considered a “resident surety” under Rule 8.

¶ 8. Johnson contends that the City qualifies as a surety within the common meaning of the word. Black’s Law Dictionary defines a surety as “a person who is primarily liable for the payment of another’s debt or the performance of another’s obligation.” Black’s Law Dictionary 1482 (8th ed.2004). Applying this definition, Johnson argues that the City, Foxworth, and James bound themselves “jointly and severally” by the terms of the supersedeas bond, thereby acting as sureties for each other. In other words, Foxworth and James acted as sureties for the City; the City and Foxworth acted as sureties for James; and the City and James acted as sureties for Foxworth.

¶ 9. Our precedent does not support Johnson’s contention that codefendants can act as sureties for each other’s obligations on appeal, because a party cannot act as a surety. “[S]ureties are not parties to a cause of action .... [I]t is not necessary to summon them on appeal to the Supreme Court.” Shoebridge, 143 So.2d at 484 (citing Wilson v. City of Lexington, 153 Miss. 209, 119 So. 795 (1928)). This Court has held that a principal in a lawsuit cannot act as surety for other principals on appeal. In Hudson v. Gray, 58 Miss. 591, 592 (1881), the executor of an estate and several of the estate’s heirs appealed from a decree directing the partition of the decedent’s property. This Court found that the appeal bond was defective because it included only one valid surety. Id. The executor had signed the bond as both an appellant and a surety. Id. This Court held that “by uniting in the petition for appeal he has made himself an appellant, and therefore a principal; while not required to give bond, he cannot make himself a surety for those with whom he has already become a co-appellant.” Id. See also Jayne v. W.B. Nash Lumber Co., 108 Miss. 449, 66 So. 813, 814 (1914) (“[B]y executing this bond these parties have simply obtained a supersedeas of the judgment against them, so that, in truth and in fact, all of them are principals and the bond contains no real sureties.”).

¶ 10. Because the City is principally liable on the judgment, it could not act as a “resident surety” within the meaning of Rule 8. Johnson has not presented to this Court any previous ease in which this Court has allowed a party to a judgment to act as a surety on its own appeal of that judgment. The trial court’s initial judgment found the City, Foxworth, and James severally liable on the judgment, with each required to pay one-third of the total amount. By pursuing an appeal with Fox-worth and James, the City made itself a coappellant and cannot also act as a surety on their obligations.

¶ 11. Johnson, citing Copeland v. Robertson, 236 Miss. 95, 108 So.2d 419 (1959), argues that the City is legally prohibited from limiting its liability under the super-sedeas bond to only a portion of the judgment. In Copeland, the appellant appealed a $17,500 judgment and posted two supersedeas bonds. Id. at 420. The first was secured by a surety company “to the extent of $10,000 and no more;” the second was secured by two individual sureties “to the extent of $11,875 and no more.” Id. This Court held that the statute governing supersedeas bonds “contemplates that the sureties will be jointly and severally liable for the entire amount [of the judgment].” Id. at 421. “In a suit on a super-sedeas bond, the judgment will be entered against both individual sureties, jointly and severally, for the total amount of the judgment and costs.” Id. (citing Hemphill v. Hemphill, 199 Miss. 428, 24 So.2d 855 (1946); Williams v. Shivers, 222 Miss. 626, 76 So.2d 838 (Miss.1955)).

¶ 12. The rule in Copeland certainly would be applicable here, if the City could be considered a surety on the bond. However, as previously stated, the City cannot be considered a surety within this Court’s interpretation of the rules governing su-persedeas bonds, because the City was already principally liable for a portion of the judgment. Accordingly, the rule in Copeland is not applicable to this case.

II. Because the City’s supersedeas bond did not contain the required sureties, the circuit clerk lacked authority to accept it.

¶ 13. Johnson instituted this action by moving the circuit court to enforce the supersedeas bond against the City pursuant to Rule 65.1 of the Mississippi Rules of Civil Procedure. Rule 65.1, entitled “Security: Proceedings Against Sureties,” provides:

Whether these rules require or permit the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting the liability on the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an independent action.

Miss. R. Civ. P. 65.1 (emphasis added). The City argues that Johnson could not bring this motion against the City pursuant to Rule 65.1, because the rule provides the procedure to enforce bonds only against sureties.

¶ 14. This Court finds that the trial court was without authority to enforce the supersedeas bond against the city, a principal to the judgment, under Rule 65.1. As previously stated, the City could not be considered a valid surety under Rule 8. “This court has repeatedly held that the statute authorizing clerks of the inferior courts to issue writs of error is imperative in its requisitions that there shall be two or more sureties on the bond. A bond with only one surety is an invalid bond under the statute.” Baskin v. May, 17 Miss. 373, 374 (Miss.Err. & App.1848). Because the bond posted by the City did not include two valid sureties or a surety company, the circuit clerk did not have the authority to receive it or issue supersedeas upon it, and the circuit court had no authority to enforce it under Rule 65.1. See id.

¶ 15. Additionally, as Johnson has conceded, the City was not actually required to post a bond to stay the judgment and pursue its appeal. The City is exempted by statute and procedural rule from the requirement to file a supersedeas bond. Section 11-51-101(1) of the Mississippi Code provides:

The state and any county or municipality of the state, and the officials representing the state, county or municipality, in any suit or action, and any state, county or municipal officer who is a party to any suit or action in his official character, in which suit or action the state, county or municipality is beneficially interested ... shall be entitled to appeal from a judgment, decree, decision or order of any court or judge from which an appeal may be taken without prepayment of costs in the lower court; however, the cost of the preparation of the record of the proceedings in the trial court shall be prepaid. In any such case, if a supersedeas is allowed and desired, a bond for supersedeas shall not be required.

Miss.Code Ann. § 11-51-101(1) (Rev.2012) (emphasis added). In addition, Rule 62(f) of the Mississippi Rules of Civil Procedure provides:

When an appeal is taken by the State of Mississippi or an officer or agency thereof or by direction of any department of the government of same and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security shall be required of the appellant.

Miss. R. Civ. P. 62(f) (emphasis added). The term “agency thereof’ has been interpreted to include municipalities. See Miss. R. Civ. P. 62 cmt. (stating that Rule 62(f) tracks prior practice under Section 11-51-101); Miss. R.App. P. 8 cmt. (stating that, under Section 11-51-101, certain parties, including municipalities, are entitled to an automatic stay without posting bond or any action by the clerk of the trial court under Rule 8). See also Picou v. City of Jackson, 153 F.Supp.2d 891 (S.D.Miss.2001), reversed on other grounds, Picou v. City of Jackson, Miss., 48 Fed.Appx. 102 (5th Cir.2002) (holding that Rule 62(f) and Section 11-51-101 are not in conflict).

¶ 16. We find that, because the City was not required to file a supersedeas bond to stay the judgment against it during its initial appeal, nullifying the bond also will maintain the “status quo” of the initial judgment, one of the primary purposes of the supersedeas bond requirement. See Aetna Ins. Co., 90 So. at 122. First, the filing of the bond had no effect on the City’s ability to stay the judgment against it during its appeal. Johnson would have been unable to enforce her judgment against the City while the appeal was pending, even in the absence of the bond. Second, nullifying the bond will preserve each defendant’s liability for separate offenses under the jury’s verdict. Allowing Johnson to enforce the entire judgment against the City would force the City to pay an amount greater than the jury’s verdict against it, for a claim not brought against it, and it would absolve the other two defendants of their individual liability.

¶ 17. In sum, we find that the circuit clerk did not have the power to approve the deficient supersedeas bond in this case; and thus, the trial court erred in enforcing the bond against the City as a surety pursuant to Rule 65.1.

CONCLUSION

¶ 18. By pursuing an appeal of the trial court’s judgment, the City could not also act as a surety for the obligations of its coappellants. Because the supersedeas bond posted by the defendants lacked any valid sureties, the circuit clerk did not have the power to approve it. The trial court erred in enforcing a deficient bond against the City, a principal, pursuant to a procedural rule that applies only to sureties. Accordingly, we reverse and render the trial court’s order granting Johnson’s motion to enforce the supersedeas bond against the City alone.

¶ 19. REVERSED AND RENDERED.

DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

      . Johnson sued the City under "Title VII," 42 U.S.C. § 2000e et seq., for creating a hostile work environment. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (holding that, while sexual harassment generally is viewed as an act outside the scope of employment, an employer still can be held vicariously liable where its own negligence is the cause of the harassment). Her claims against Foxworth and James, on the other hand, were brought under 42 U.S.C. § 1983. See E. Miss. State Hosp. v. Callens, 892 So.2d 800, 812 (Miss.2004) (holding that state officials can be sued in their personal or individual capacities under Section 1983)).

      . See Miss.Code Ann. § 25-1-47 (Rev.2010) (authorizing municipalities to provide legal counsel for the defense of claims, whether civil or criminal, made against municipal employees as a result of the employee's actions while acting in the capacity of such employee).

      . Because the procedure employed by Johnson to enforce the supersedeas bond against the City governs actions only against sureties, we decline to address Johnson’s arguments regarding the application of estoppel principles to nonsureties.

      . If die executor had appealed on his own, he would have been statutorily exempted from posting a supersedeas bond, since he was a party to the proceeding solely in his fiduciary character. Id. (citing Miss.Code § 2334 (1880)).

      . The requirements for a supersedeas bond were once governed by statute. See Miss. Code 1942, 1163. As mentioned earlier, Rule 8 of the Rules of Appellate Procedure now governs these requirements. A review of the prior statutes has revealed no material differences between the prior statutes and Rule 8.


author: CHANDLER, Justice,

text:
    MEMORIAL HOSPITAL AT GULFPORT v. In the Matter of the Guardianship of Nicholas PROULX, a Minor by and through his Father, Timothy PROULX and Hope Proulx Roche, his Mother.
    No. 2012-CA-01714-SCT.
    Supreme Court of Mississippi.
    Sept. 12, 2013.

      Brad Michael Williams, Brandon, attorney for appellant.
    Graham P. Carner, Brehm T. Bell, Bay St. Louis, attorneys for appellee.
    Before WALLER, C.J., CHANDLER and KING, JJ.
   CHANDLER, Justice,

for the Court:

¶ 1. A minor, Nicholas Proulx, was injured in a car accident and treated for his injuries at Memorial Hospital at Gulfport. Nicholas’s parents, Timothy Proulx and Hope Proulx Roche (the guardians), obtained letters of guardianship and petitioned the chancery court for authority to compromise and settle his personal-injury claim for $50,000, provided by liability insurance coverage. The guardians also asked the chancery court to dismiss claims against the settlement proceeds made by several medical providers, including Memorial. Memorial appeals from the chancellor’s dismissal of its claim. Because Memorial had no assignment, lien, or other legal right to payment from the settlement proceeds, we affirm.

FACTS

¶2. On November 26, 2011, Nicholas was a passenger in a vehicle' driven by Christopher Murray that was struck by another vehicle driven by Olena B. Johnson. Nicholas sustained a right distal radius fracture, left metacarpal fracture and phalanx fracture, and a pulmonary contusion. Nicholas made a full recovery from his injuries. His total medical expenses incurred from the accident were $84,417.69.

¶ 3. Nicholas’s parents obtained letters of guardianship and petitioned for the authority to compromise and settle Nicholas’s claim. The petition stated that, pursuant to its policy with Jennifer Hope Roche, Geico General Insurance Company had agreed to settle Nicholas’s claim for $25,000, the policy limits. Additionally, Johnson’s insurer, Safeco Insurance Company of Illinois, had agreed to pay $25,000, its per-person liability policy limits, to settle the claim. The petition stated that, because Nicholas was a Medicaid beneficiary, Medicaid had paid $2,543.80 on his behalf and agreed to accept the reduced amount of $1,907.85 from the settlement in full satisfaction of its lien. The petition further asserted that Memorial, through MedPay Assurance, asserted a lien for unpaid medical expenses totaling $71,025.14. The guardians requested that the chancery court approve the settlement. They also requested that the chancery court waive any requirement of payment of the hens claimed by Memorial and other medical providers.

¶4. Memorial appeared at the hearing on the petition to settle the claim, arguing that it was entitled to a pro rata share of the settlement funds on the ground that a medical provider cannot bill Medicaid until all available third-party sources of payment have been exhausted. The guardians argued that, because Memorial’s claim exceeded the settlement funds and Nicholas would not be made whole, the claim should be denied. The chancery court agreed and dismissed Memorial’s claim because it exceeded the amount of the settlement and Nicholas would not be made whole if Memorial’s claim were paid from the settlement funds. Memorial appeals.

LAW AND ANALYSIS

I. WHETHER THE CHANCERY COURT ERRED BY DISMISSING MEMORIAL’S CLAIM AGAINST THE SETTLEMENT FUNDS.

¶ 5. Memorial argues that the chancery court erred by applying the made-whole rule in this case. This Court adopted the made-whole rule in Hare v. State, 733 So.2d 277, 285 (Miss.1999). Hare was injured in a car accident and received health insurance benefits of $6,056.44 from the State Health Plan. Id. at 279. His medical expenses were $8,667.50, and expert witnesses estimated that he could recover between $50,000 and $175,000 in a lawsuit. Id. at 279, 284. When Hare recovered $10,000 from an uninsured motorist policy, the State filed a subrogation claim against his uninsured-motorist benefits pursuant to a subrogation provision in the State Health Plan. Id. at 279. Hare argued that, because he had not been fully compensated, or made whole, for the accident, he had received no double recovery for which the State was entitled to subrogation. Id. at 281.

¶ 6. The Court observed that a majority of states adhere to the made-whole rule, which is “the general principle that an insurer is not entitled to equitable subro-gation until the insured has been fully compensated.” Id. at 283. However, in some states, a contractual right to subro-gation will override the application of the made-whole rule. Id. at 282. This Court rejected that approach, adopted the made-whole rule, and held that, because “the equitable nature of subrogation requires that no distinction need be made between equitable and conventional rights of subrogation,” the made-whole rule “is not to be overridden by contract language.” Id. at 283-84 (quoting Franklin v. Healthsource of Arkansas, 328 Ark. 163, 942 S.W.2d 837 (1997)). The Court held that there is no double recovery until the insured has been fully compensated. Hare, 733 So.2d at 284. The court applied the made-whole rule and held that, because Hare’s uninsured motorist benefits had not fully compensated him for the accident, he had not received a double recovery, and the State was not entitled to subrogation. Id. at 285.

¶ 7. Memorial argues that the made-whole rule applies only in the context of insurance subrogation. It contends that it had a debtor-creditor relationship with Nicholas to which the made-whole doctrine does not apply. We need not address whether the made-whole rule defeats Memorial’s claim to settlement proceeds. This is because, regardless of the applicability of the made-whole rule, Memorial has no legal right to any recovery from the settlement proceeds. Memorial has no lien against the funds. Unlike some other states, Mississippi has no statutory hospital lien, nor has this Court recognized a common-law lien under these facts. Indeed, Memorial does not argue that it has a lien, or does it assert a right to recovery through a contract or under an implied-contract theory. It does not assert that it is the beneficiary of an assignment of the settlement proceeds. Memorial cited no authority for its argument at the hearing that it has a right to a pro rata share of the settlement proceeds.

¶8. Memorial’s position in this case is comparable to that of the hospitals that sought payment of medical bills in McCoy v. Preferred Risk Ins. Co., 471 So.2d 396 (Miss.1985), and Methodist Hospitals of Memphis v. Guardianship of Marsh, 518 So.2d 1227 (Miss.1988). In McCoy, a minor, David James McCoy, was hospitalized after a car accident, and his parents executed an assignment of all liability insurance benefits in favor of the hospital. Id. at 397. Later, the parents disputed the validity of the assignment, and the insurer interpleaded the benefits, which consisted of $20,000 in uninsured-motorist liability benefits and $4,000 in medical benefits. Id. The Court held that the parents had lacked authority to assign the uninsured-motorist benefits due to David. Id. at 397-98. However, because the medical-expense benefits under the policy authorized Preferred to pay all reasonable medical expenses to the entity rendering medical services, the Court permitted the hospital’s recovery of the $4,000 in medical benefits. Id. at 397.

¶ 9. In Methodist, another minor, Stephen B. Marsh, was injured in a car accident. Methodist, 518 So.2d at 1228. At the hospital, his mother signed a document entitled “Hospital Lien” in which she agreed to pay Stephen’s medical expenses from any insurance settlement or judgment she recovered. Id. The insurer settled for the policy limits of $25,000 in liability coverage and $2,000 in medical-payments coverage, and the hospital claimed a lien on those funds. Id. This Court rejected the claimed lien on the liability coverage because the mother had no legal authority to execute any document binding Stephen’s estate without prior chancery court approval. Id. (citing McCoy, 471 So.2d at 396). The Court remanded for a determination of whether the hospital was a direct beneficiary under the medical-payments coverage and “due these benefits irrespective of any lien or assignment.” Methodist, 518 So.2d at 1228.

¶ 10. In McCoy and Methodist, once the assignment or lien was found to be invalid, the hospitals had no further rights against the liability insurance proceeds due the minor, and the claims were denied. McCoy, 471 So.2d at 399; Methodist, 518 So.2d at 1228. Memorial does not claim that it has a right to recovery under a lien, an assignment, or a contractual theory. Memorial’s sole argument supporting its claim of a right to the settlement proceeds is that it has a legal duty to seek recovery from any legally liable third party prior to billing Medicaid. This argument does not avail Memorial. The third-party insurers were not legally liable to pay Memorial for the medical bills. McCoy, 471 So.2d at 397-98; Methodist, 518 So.2d at 1228. The third-party coverage at issue here was general liability coverage, not medical-pay coverage that reimburses the hospital for medical bills. See McCoy, 471 So.2d at 397; Methodist, 518 So.2d at 1228. Memorial does not dispute this basic fact. Because no law entitled Memorial to payment from the settlement proceeds, we affirm the chancery court’s dismissal of Memorial’s claim.

CONCLUSION

¶ 11. Because Memorial had no assignment, lien, or other legal right to payment from the settlement proceeds, we affirm the chancery court’s judgment dismissing Memorial’s claim.

¶ 12. AFFIRMED.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, PIERCE, KING AND COLEMAN, JJ„ CONCUR.

      . Mississippi Code Section 43-13-125(1) provides for a Medicaid lien as follows:
      If Medicaid is provided to a recipient under this article for injuries, disease or sickness caused under circumstances creating a cause of action in favor of the recipient against any person, firm or corporation, then the division shall be entitled to recover the proceeds that may result from the exercise of any rights of recovery that the recipient may have against any such person, firm or corporation to the extent of the Division of Medicaid’s interest on behalf of the recipient.
      Miss.Code Ann. § 43-13-125(1) (Rev.2009). Additionally, "[t]he division, with the approval of the Governor, may compromise or settle any such claim and execute a release of any claim it has by virtue of this section.” Id.