Mosley vs. Norquist Summary Judgment

8/9/2019 Mosley vs. Norquist Summary Judgment

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI

NORTHERN DIVISION

JOHN MOSLEY, Individually and

CLINTON BODY SHOP, INC.; andDANIEL MOSLEY, Individually and

CLINTON BODY SHOP OF RICHLAND, INC. PLAINTIFFS

v. CAUSE NO. 3:13CV161-LG-JCG

GEICO INSURANCE COMPANY;

PROGRESSIVE INSURANCE COMPANY;

DIRECT GENERAL INSURANCE COMPANY;

JOHN DOES 1-5; JOHN DOE

CORPORATIONS 1-5 DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

BEFORE THE COURT are the Motion [198] for Partial Summary Judgment

and Motion [451] for Summary Judgment filed by Defendant Progressive Insurance

Company, the Motion [445] for Summary Judgment filed by Defendant Direct

General Insurance Company, and the Motion [479] for Summary Judgment filed by

Defendant GEICO Insurance Company. Plaintiffs John Mosley, individually, and1

Clinton Body Shop, Inc., and Daniel Mosley, individually, and Clinton Body Shop of

Richland, Inc., have responded in opposition to each of the Motions, and the

defendants have filed replies. The Court has reviewed the applicable law and the

parties’ submissions, including all of the evidence submitted with respect to the

Plaintiffs named “Progressive Insurance Company” and “GEICO Insurance1

Company” as defendants, but those are not entities. The various Progressive and

GEICO entities who are licensed to do business in Mississippi responded to the

Complaint, and the Court will hereafter refer to them simply as “Progressive” and

“GEICO.”

Case 3:13-cv-00161-LG-JCG Document 709 Filed 12/16/14 Page 1 of 47


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Motions for Summary Judgment and corresponding responses by the plaintiffs. It is

the opinion of the Court that the defendants’ Motions for Summary Judgment

should be granted.

B ACKGROUND

Plaintiffs are two automobile repair shops, Clinton Body Shop, Inc. and

Clinton Body Shop of Richland, Inc. (hereinafter “Clinton Body Shop” and “Clinton

Body Shop of Richland” or collectively, the “plaintiff repair shops”); John Mosley;

and Daniel Mosley. John Mosley and Daniel Mosley are the owners, Presidents,

and Chief Executive Officers of Clinton Body Shop and Clinton Body Shop of

Richland, respectively. The plaintiffs are in the business of repairing motor

vehicles that have been damaged in collisions. Defendants are insurance companies

that provide automobile insurance coverage to policyholders. In essence, this action

alleges that the defendant insurance companies have refused to reimburse the

plaintiffs in full for repairs that the plaintiffs completed on their insureds’ vehicles.

According to their Second Amended Complaint (hereinafter “the Complaint”),

during the past several decades, the plaintiffs have provided automobile repair

services to customers who are the defendants’ policyholders. (2d Am. Compl., ECF

No. 25). The facts, as set forth in the Complaint, allege that the defendant

insurance companies have refused to pay the plaintiffs for work that is necessary to

repair policyholders’ automobiles to their pre-collision condition. The Complaint

alleges that since approximately 1980, “the defendants have embarked upon a

scheme and design calculated to breach their obligations and duties . . . to their

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insureds and the plaintiffs to pay ordinary . . . and customary charges for repairs.”

(Id. at 7 (¶14)).

The Complaint states that there are national “collision repair estimating

databases” that provide specifications regarding parts, labor, and costs for the types

of repairs that are performed by automobile repair shops such as the plaintiffs. The

Complaint asserts that these databases are accepted within the automobile repair

industry as standard and authoritative, and that the defendant insurance

companies have acknowledged that those databases are acceptable throughout the

industry. (Id. at 7-8 (¶¶15-21)). However, the plaintiffs contend, the defendants

have nevertheless refused to reimburse the plaintiffs for certain repairs, even

though the plaintiffs based their estimates on those same databases. The

Complaint alleges that the defendants have “failed and/or intentionally refused to

compensate plaintiffs for selected necessary, ordinary and customary repairs and

materials used,” and have done so “despite the fact that all costs and procedures are

standard and necessary pursuant to the industry-accepted estimating systems.”

(Id. at 9 (¶24)).

The plaintiffs further allege that the defendants have “engaged in a course of

conduct designed to harass, annoy, and manipulate the plaintiffs’ business and

business practices;” they have interfered with the plaintiffs’ contracts with their

customers; they have made “defamatory and slanderous statements” about the

plaintiffs’ businesses; and they have otherwise injured the plaintiffs’ good will and

caused loss of economic opportunities. (Id. at 10-11 (¶¶33-36)).

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The Complaint states the following claims for relief:

Count One: “Contracts vs. Agreements” and Defendants’

Various Breaches of Covenants of Good Faith and Fair

Dealing

Count Two: Tortious Interference with Contract and

Business Relationship

Count Three: Interference with Prospective Business

Advantage

Count Four: Violations of Mississippi Code Ann. § 83-11-

501

Count Five: Business Defamation

Count Six: Constructive Trust and Conversion

Count Seven: Unjust Enrichment

Count Eight: Business Oppression

Count Nine: Intentional and Negligent Infliction of

Emotional Distress

Count Ten: Quasi-Estoppel

(Id. at 11-19 (¶¶37-68)). The plaintiffs seek an award of compensatory, statutory,

and punitive damages, interest, attorney’s fees, and litigation expenses. (Id. at 20-

21 (¶69)).

The defendant insurance companies move for summary judgment as to all of

the plaintiffs’ claims. There is no dispute that Mississippi law applies to this

diversity action.2

The Court notes that the Complaint includes a lengthy explanation of a2

Consent Decree between the United States Department of Justice and associations

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LEGAL STANDARD

Summary judgment is appropriate when, viewing the evidence in the light

most favorable to the nonmoving party, no genuine issue of material fact exists, and

the moving party is entitled to judgment as a matter of law. See Celotex Corp. v.

Catrett, 477 U.S. 317, 322-24 (1986); see also Fed. R. Civ. P. 56(c). A party seeking

summary judgment bears the initial burden of identifying those portions of the

pleadings and discovery on file, together with any affidavits, which it believes

demonstrate the absence of a genuine issue of material fact. Celotex , 477 U.S. at

325. Once the movant carries its burden, the burden shifts to the non-movant to

show that summary judgment should not be granted. Id. at 324-25. The

non-moving party may not rest upon mere allegations or denials in its pleadings,

but must set forth specific facts showing the existence of a genuine issue for trial.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986). This requires the

party opposing summary judgment “to identify specific evidence in the record and to

of insurance companies entered in 1963 following antitrust litigation. (See Consent

Decree, 2d Am. Compl. Ex. 1, ECF No. 25-1). It is not clear whether the plaintiffs

include this information as general background, or whether they allege that the

defendants are somehow in violation of the Consent Decree. (For example, in Count

5 of the Complaint, which alleges defamation, the plaintiffs assert that the

defendants’ statements “violate the letter and spirit of the 1963 Consent Decree”

and “public policy standards.”) (2d Am. Compl. at 15-16 (¶52)). If the plaintiffs are

attempting to allege claims under the Consent Decree, those claims are dismissed

because the plaintiffs have not demonstrated how they would have standing toenforce the Consent Decree, or that any of the defendants were parties to that

litigation or are otherwise bound by the Consent Decree. Moreover, the Consent

Decree was entered by the United States District Court for the Southern District of

New York, and this Court would not have jurisdiction to enforce it.

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articulate the precise manner in which that evidence supports his or her claim.”

Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Forsyth v.

Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994)). “Rule

56 does not impose upon the district court a duty to sift through the record in search

of evidence to support a party’s opposition to summary judgment.” Id. (quoting

Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n. 7 (5th Cir. 1992), cert.

denied, 506 U.S. 832 (1992)).

DISCUSSION

As an initial matter, the Court notes that each defendant has moved for

summary judgment on all of the plaintiffs’ claims. The defendants’ arguments in

support of their Motions for Summary Judgment are substantially similar; likewise,

the plaintiffs’ responses to the respective Motions for Summary Judgment are

identical in many respects. Accordingly, the Court will address many of the claims

without distinguishing between the defendants. Where necessary, the Court will

distinguish between the parties’ arguments and the evidence submitted in support

of their pleadings.3

I. Breach of the Covenant of Good Faith and Fair Dealing

Count One of the Complaint alleges that the defendants have breached the

implied covenant of good faith and fair dealing. The plaintiffs assert that the

Additionally, for the sake of brevity, where the briefs are substantially the3

same, the Court will cite only to one defendant’s brief, or one of the plaintiffs’

responses, as representative of the arguments on an issue, instead of listing

citations to multiple briefs that contain the same substantive information.

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defendants are subject to the covenant “by virtue of their special relationship with

the plaintiffs.” (2d Am. Compl. 12 (¶40)). Specifically, they claim that the

defendants have “devised hybrid instruments called ‘agreements’ (and other

nomenclature) which allow them to force upon the plaintiffs all of the indicia of a

contract,” but which do not provide the plaintiffs with the protections of a contract.

(Id. at 11 (¶38)). They claim that “[w]here these ‘agreements’ are deemed by the

court to be ‘contracts,’” they are “ill-gotten and oppressive.” (Id. at 11-12 (¶39)). The

defendants have moved for summary judgment on the basis that there is no

contractual relationship between the plaintiffs and the insurance companies.

“The implied covenant of good faith and fair dealing holds that neither party

will do anything which injures the right of the other to receive the benefits of the

agreement.” Cothern v. Vickers, Inc., 759 So. 2d 1241, 1248 (Miss. 2000). This

covenant is contained in all contracts. See Cenac v. Murry, 609 So. 2d 1257, 1272

(Miss. 1992) (citations omitted). However, under Mississippi law, the implied

covenant “operates only when there is already an existing contract.” James v.

Chase Manhattan Bank, 173 F. Supp. 2d 544, 551 (N.D. Miss. 2001) (citing Cothern,

759 So. 2d at 1248). Thus, to state a claim for a breach of the implied covenant, the

plaintiffs must demonstrate the existence of a contract with the defendants.

The plaintiffs have admitted that there is no express or written contract

between them and the defendant insurance companies. Instead, they argue that4

Plaintiffs do not contend in their briefing that they have a written or4

express contract with any defendant, and admitted during discovery that there are

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their business relationship with the defendants “creates an implied or quasi-

contractual relationship.” (See Pl. Mem. in Supp. of Resp. to Progressive Mot. for

Partial Summ. J. 4, ECF No. 248).

An implied contract is one that arises from the conduct of the parties, and a

quasi-contract “rests on the equitable principle that a person shall not be allowed to

enrich himself at the expense of another.” Franklin v. Franklin ex rel. Phillips, 858

So. 2d 110, 120 (Miss. 2003). In this context, the plaintiffs claim that when they

enter into a repair order contract with a customer, and the insurance company

approves of that repair order contract, an implied or quasi-contract is created

between the plaintiffs and the insurance company. They assert that the insurance

company’s approval creates a relationship that gives rise to the “full rights and

responsibilities” of a contract created by law. (See Pl. Mem. in Supp. of Resp. to

Progressive Mot. for Partial Summ. J. 5, ECF No. 248). However, the plaintiffs

have cited no legal authority in support of this argument. They do not point to any

evidence in the record that would support a finding of an implied or quasi-contract

on the basis of the insurance companies’ approval of the repair contracts. The5

no such contracts. (See Pls.’ Resp. to Progressive’s 1st Set of Requests for

Admissions 3, Affirm. of Brabec in Supp. of Progressive Mot. for Partial Summ. J.

Ex. A,, ECF No. 199-1; Pl. Resp. to Direct General 1st Request for Admissions 3,

Direct General Mot. for Summ. J. Ex. A, ECF No. 445-1; Pl. Resp. to Direct General

1st Set of Interrogatories, Interr. No. 6, Direct General Mot. for Summ. J. Ex. G,

ECF No. 445-7; Rule 30(b)(6) Dep. 151:20–152:6, GEICO Mot. for Summ. J. Ex. 1,

ECF No. 479-1).

The plaintiffs’ arguments on this issue focus on their contention that the5

Mitchell Database System is the accepted standard in the industry. However, the

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It is the plaintiffs’ burden to establish the existence of a contract, if they are

to state a claim for breach of the implied covenant of good faith and fair dealing.

The plaintiffs have failed to point to any legal basis on which the Court could

determine that there is an implied or quasi-contract. Accordingly, the Court will

not hold that the defendants are subject to the implied covenant of good faith and

fair dealing on the theory of an implied or quasi-contract. Moreover, as the

defendant insurance companies are not parties to the express contracts between the

plaintiffs and their customers, they are not subject to the implied covenant with

respect to those contracts. See Cothern, 759 So. 2d at 1249 (“With no existing

contractual obligation, there can be no implied covenant”). Defendants are

therefore entitled to summary judgment on this claim.

Finally, the Complaint does not state a claim of breach of contract, but in

their briefing, the plaintiffs argue the defendants have breached an implied

contract between the defendants and the plaintiffs. (See, e.g. Pl. Mem. in Supp. of

Resp. to Progressive Mot. for Partial Summ. J. 4-7, ECF No. 248). The Mississippi

Supreme Court has held that a plaintiff asserting any breach of contract claim has

the burden to prove, by a preponderance of the evidence, (1) the existence of a valid

and binding contract; and (2) that the defendant has broken or breached it. Bus.

Commc’ns, Inc. v. Banks, 90 So. 3d 1221, 1224 (Miss. 2012) (holding that “monetary

damages are a remedy for breach of contract, not an element of the claim”). As set

defendants and their policyholders.

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forth above, the plaintiffs have admitted that there is no express or written contract

between them and any of the defendant insurance companies, and they have not

provided a legal basis on which the Court may find an implied or quasi-contract.

Thus, the defendants are also entitled to summary judgment on the plaintiffs’

breach of contract claim, to the extent one is alleged.

II. Unjust Enrichment

Count 7 of the plaintiffs’ Complaint alleges unjust enrichment. The plaintiffs

assert that by failing to make full payments for the repairs completed by the

plaintiff repair shops, the defendants have “obtained or retained money that, in

equity and good conscience, rightfully belongs to plaintiffs and wrongfully enriches

the defendants.” (2d Am. Compl. 17 (¶61), ECF No. 25).

The doctrine of unjust enrichment is based on a promise, implied in law,

“that one will pay a person what he is entitled to according to ‘equity and good

conscience.’” 1704 21st Ave., Ltd. v. City of Gulfport, 988 So. 2d 412, 416 (Miss. Ct.

App. 2008). To prevent unjust enrichment, the law creates a quasi-contract based

upon “the equitable principle ‘that a person shall not be allowed to enrich himself

unjustly at the expense of another.’” Id.; Koval v. Koval, 576 So. 2d 134, 137 (Miss.

1991) (citation omitted). Unjust enrichment is only available where there is no

legal contract. Powell v. Campbell, 912 So. 2d 978, 982 (¶14) (Miss. 2005).

Additionally, this Court has recognized that unjust enrichment is considered to be a

remedy, rather than an independent theory of recovery. See Cole v. Chevron USA,

Inc., 554 F. Supp. 2d 655, 671 (S.D. Miss. 2007) (citing Coleman v. Conseco, Inc.,

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238 F. Supp. 2d 804, 813 (S.D. Miss. 2002)); see also Estate of Johnson v. Adkins,

513 So. 2d 922, 926 (Miss. 1987).

The plaintiffs’ allegations regarding unjust enrichment are based on their

theory that they have implied or quasi-contracts with the defendant insurance

companies. In response to the Motions for Summary Judgment, the plaintiffs set

forth the same arguments about implied and quasi-contracts that they assert in

support of their claim of breach of the covenant of good faith and fair dealing. (Pl.

Mem. in Supp. of Resp. to GEICO Mot. for Summ. J. 22-24, ECF No. 579). As set

forth above, the plaintiffs have not established that they have an implied contract

with the defendants, and do not provide a legal basis on which the Court could

determine that a quasi-contract exists.

Additionally, the plaintiffs assert that “if the defendant[s] have not paid

Plaintiff[s] a reasonable amount for services to the insured, then defendant[s] have

been unjustly enriched.” (Id. at 25). However, they cite no authority for that

conclusion. The plaintiffs do not cite any case in which a court has held that an

insurance company was unjustly enriched because it failed to pay in full the charges

incurred by an insured at a repair shop (or any analogous context), and the Court is

not aware of one.

Finally, the plaintiffs also argue that the determination of “damages under a

contract is a fact question for the jury.” (Id. at 24-25). That may be true, but as set

forth above, the plaintiffs do not have a contract with the defendants, and the Court

will not reach the question of damages where the plaintiffs do not have a legally

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viable claim. The plaintiffs have not demonstrated a legal basis on which the Court

could impose the doctrine of unjust enrichment. Summary judgment will be

granted in favor of the defendants on this claim.

III. Conversion and Constructive Trust

Count 6 of the Complaint states a claim of “constructive trust and

conversion.” (2d Am. Compl. 16 (¶¶53-56), ECF No. 25). The Complaint alleges

that the defendants are wrongfully holding in their possession funds that belong to

the plaintiffs in constructive trust. Plaintiffs assert that, “[o]n information and

belief, a ‘pool’ of funds garnered from premiums paid by plaintiffs’ customers and

the consuming public exists within the possession and control of the defendants.”

(Id. (¶54)). They allege that these funds are held for the purpose of paying

legitimate repair charges incurred by insureds, and because the defendants have

failed to pay for such charges on behalf of the plaintiffs’ customers, those funds

rightfully belong to the plaintiffs. Count 6 further alleges that the defendants’

actions “amount to a conversion of plaintiffs’ monies, which creates a constructive

trust for the benefit of the plaintiffs,” and that therefore they are “entitled to a

judgment in quantum meruit or restitution” for the wrongfully withheld funds. (Id.

(¶56)).

Conversion is an intentional tort recognized by Mississippi law, while a

constructive trust is an equitable remedy imposed where necessary to prevent

unjust enrichment. They are not one and the same claim.

Conversion

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To establish the tort of conversion in Mississippi, “there must be proof of a

wrongful possession, or the exercise of a dominion in exclusion or defiance of the

owner’s right, or of an unauthorized and injurious use, or of a wrongful detention

after demand.” Cmty. Bank, Ellisville, Miss. v. Courtney, 884 So. 2d 767, 772-73

(¶10) (Miss. 2004) (citation omitted) (emphasis in original). A plaintiff alleging

conversion must carry the burden to show that he owned or had a right to possess

property that was the subject of an unauthorized taking or the unauthorized

exercise of control by the defendant. Lyons v. Misskelly, 759 F. Supp. 324, 327 (S.D.

Miss. 1990) (citing LaBarre v. Gold, 520 So. 2d 1327, 1330 (Miss. 1987); Masonite

Corp. v. Williamson, 404 So. 2d 565, 567 (Miss. 1981)).

The Mississippi Supreme Court has held that “[i]t is elementary that

ownership is an essential element of conversion.” Courtney, 884 So. 2d at 772 (¶10).

Federal and state courts in Mississippi have enforced the requirement that the

plaintiff must show that he owns the funds or property at issue. See Evans v. Miss.

Dep’t of Human Servs., 36 So. 3d 463, 477 (Miss. Ct. App. 2010) (“To succeed on a

conversion claim, [the plaintiff] must show he owned the funds at issue.”); Estate of

Martin Luther King Jr., Inc. v. Ballou, 856 F. Supp. 2d 860, 866 (S.D. Miss. 2012),

aff’d sub nom. Estate of King v. Ballou, 544 F. App’x 280 (5th Cir. 2013) (same).

The plaintiffs have not demonstrated that they are the owners of any portion

of the “pool” of funds that is the subject of their conversion claim. According to the

plaintiffs’ own description, those funds were paid by policyholders directly to the

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insurance companies. The plaintiffs do not claim that they were ever in possession7

of the funds. They point to no evidence that they are the true owners of the funds,

which is essential to a claim of conversion under Mississippi law. The only

argument the plaintiffs put forth regarding their ownership or interest in the funds

is that “Plaintiffs have a ‘claim of ownership’ to the funds specifically set aside for

those repairs as much as does the Defendant.” (Pl. Mem. in Supp. of Resp. to

Progressive Mot. for Partial Summ. J., 10-11, ECF No. 248). However, the plaintiffs

offer no legal support for this conclusion. As the plaintiffs have not presented any

evidence of ownership of the allegedly converted funds, or cited any statutory or

case law on which the Court could find that they had an ownership interest, the

defendants are entitled to summary judgment on this claim. See Courtney, 884 So.

2d at 773 (¶10) (dismissing conversion claims with respect to property that plaintiff

did not own, stating, “[T]here is no conversion until the title of the lawful owner

is made known and resisted or the purchaser exercises dominion over the property

by use, sale, or otherwise.”) (citation omitted) (emphasis in original).

Constructive Trust

“A constructive trust is a fiction of equity created for the purpose of

In the first brief the plaintiffs filed in response to a summary judgment7

motion on the conversion claim, before the discovery period had closed, the plaintiffs

noted that they had scheduled the defendants’ deposition under Rule 30(b)(6) “toinquire into specific areas about this policy and procedure is [sic] implemented in

order to pay claims.” (Pl. Mem. in Supp. of Resp. to Progressive Mot. for Partial

Summ. J. 10 n.9, ECF No. 248). However, the plaintiffs’ subsequent briefing does

not reference any evidence obtained during those depositions to support their claim

of conversion.

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preventing unjust enrichment by one who holds legal title to property which, under

principles of justice and fairness, rightfully belongs to another.” McNeil v. Hester,

753 So. 2d 1057, 1064 (Miss. 2000) (citations omitted). The Mississippi Supreme

Court has defined a constructive trust as:

one that arises by operation of law against one who, by

fraud, actual or constructive, by duress or abuse of

confidence, by commission of wrong, or by any form of

unconscionable conduct, artifice, concealment, or

questionable means, or who in any way against equity

and good conscience, either has obtained or holds the

legal right to property which he ought not, in equity and

good conscience, hold and enjoy.

Id. (citing Saulsberry v. Saulsberry, 78 So. 2d 758, 760 (1955) (additional citations

omitted)).

In order for a court to create a constructive trust, the facts must show

“substantial overreaching or fraud,” and the proof must be clear and convincing. Id.

(citing Planters Bank & Trust Co. v. Sklar, 555 So. 2d 1024, 1034 (Miss. 1990)); In

re Estate of Horrigan, 757 So. 2d 165, 170 (Miss. 1999). The Mississippi Supreme

Court has also stated that “[i]t is necessary only to establish such conduct and bad

faith as would shock the conscience of the court.” Griffin v. Armana, 687 So. 2d

1188, 1195 (Miss. 1996) (citation omitted).

Additionally, this Court has recognized that, in order to impose a

constructive trust, the Mississippi Supreme Court “has generally required that a

confidential relationship be present and abuse of that confidence” must have

occurred. Eisenberg v. Grand Bank for Sav., FSB, 207 F. Supp. 2d 553, 557-58 (S.D.

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Code Ann. § 83-11-501. That statute provides:

No insurer may require as a condition of payment of a

claim that repairs to a damaged vehicle, including glass

repairs or replacements, must be made by a particular

contractor or motor vehicle repair shop; provided,however, the most an insurer shall be required to pay for

the repair of the vehicle or repair or replacement of the

glass is the lowest amount that such vehicle or glass could

be properly and fairly repaired or replaced by a contractor

or repair shop within a reasonable geographical or trade

area of the insured.

Miss. Code. Ann. § 83-11-501. The Complaint alleges that the defendants have

violated § 83-11-501 because they have refused to pay for necessary, proper, and

fair repairs. (2d Am. Compl. 14-15 (¶49), ECF No. 25).

The defendants have moved for summary judgment on the grounds that there

is no private right of action under this statute, and that, in any event, they have not

violated the statute. The parties’ arguments regarding § 83-11-501 focus on this

Court’s decision in Christmon v. Allstate Insurance Company, 82 F. Supp. 2d 612

(S.D. Miss. 2000). In Christmon, the plaintiff alleged that Allstate Insurance

Company violated § 83-11-501 because it maintained a list of pre-approved

automobile repair shops, which it recommended to its insureds. The Court granted

summary judgment in favor of Allstate, finding that Allstate had not required

insureds to have repairs made at certain repair shops. The Christmon court did not

decide the issue of whether § 83-11-501 provides for a private right of action.8

Rather, the court noted that it assumed, for purposes of the motion, that8

such an action could be maintained.

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Likewise, this Court concludes the defendant insurance companies have not

violated § 83-11-501 because they have not required that their insureds’ repairs be

made at particular shops. As the Christmon court noted, the first principle of

statutory application and interpretation is “that when the language of a statute is

unambiguous, the Court must apply the statute according to its plain meaning.”

Christmon, 82 F. Supp. 2d at 615 (citing Harrison County Sch. Dist. v. Long Beach

Sch. Dist., 700 So. 2d 286, 288-89 (Miss. 1997)). Here, “[t]here is nothing about the

language of § 83-11-501 that is ambiguous.” Id.

The plain meaning of the language of this statute prohibits an insurance

company from conditioning its payment for repairs on the particular repair shop

that performs the work. It provides that “[n]o insurer may require as a condition of

payment of a claim that repairs to a damaged vehicle . . . must be made by a

particular contractor or motor vehicle repair shop.” Miss. Code. Ann. § 83-11-501.

In this case, the plaintiffs allege that the defendant insurance companies have

refused to pay for certain repairs. But they have not presented evidence that the

defendants refused to pay claims because the repairs were performed by the

plaintiff repair shops in particular, instead of by some other repair shop, which is

what is prohibited by § 83-11-501. The plaintiffs point to their depositions, for

example, in which they testified that Progressive refused to pay for necessary

repairs for customers’ vehicles, but this does not prove that Progressive’s refusal to

pay was because it conditioned payment on the repairs being made by a particular

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repair shop. This does not amount to a violation of § 83-11-501. Regardless of 9

whether § 83-11-501 provides for a private right of action – and the Court does not

make any determination as to that issue – the plaintiffs have not presented

sufficient evidence to overcome summary judgment on this claim. The defendants

are entitled to summary judgment on this claim.

V. Tortious Interference with Contract; Tortious Interference with

Business Relations; Interference with Prospective Advantage

Count Two of the Complaint alleges claims of tortious interference with

contracts and business relations. The plaintiffs claim that the defendants have

“negligently, intentionally, tortiously, or maliciously interfered” with the plaintiffs’

business relationships with the defendants’ insureds, and “sought to force plaintiffs

to breach the actual, implied and/or quasi-contracts . . . between plaintiffs and their

customers.” (2d Am. Compl. 12 (¶41), ECF No. 25). They assert that the

The plaintiffs cite portions of Daniel Mosley’s deposition, but it consists of 9

lengthy questioning about what Mosley believed “steering” to be, and does not

include evidence that the defendants required policyholders to have repairs made at

particular body shops. (D. Mosley Dep. 39, 45, 46, Pl. Mem. in Supp. of Resp. to

GEICO Mot. for Summ. J. Ex. K, ECF No. 579-11.) Plaintiffs also cite John

Mosley’s deposition testimony that Progressive refused to pay for repairs for a

particular customer. (J. Mosley Dep. 19:19-21, Pl. Mem. in Supp. of Resp. to

Progressive Mot. for Partial Summ. J. Ex. 1, ECF No. 248-1). However, it is unclear

why Progressive refused to pay for those procedures; for example, he testified that

the customer stated that Progressive wanted the vehicle to go to a “network shop,”

but also that another individual told him that Progressive was not going to pay for

the procedures until this litigation was finished. (Id. at 19:15-17, 20:6-8). Thistestimony is inadmissible hearsay, and the plaintiffs have not submitted an

affidavit or other testimony from the customer. Likewise, the plaintiffs do not

provide evidence of any specific instance in which GEICO or Direct General refused

to make payments because their policyholders were not using a particular body

shop.

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defendants have placed the plaintiffs in the “untenable position” of either (1)

“acquiescing to the defendants’ dictates that the plaintiffs not adhere to the . . .

processes . . . outlined in the databases,” which could cause diminution in value of

those vehicles, or (2) “repairing their customers’ vehicles in accordance to the

industry databases without full compensation by the defendants.” (Id. at 12-13

(¶43)). Therefore, the Complaint alleges, the defendants have “improperly inserted

themselves into the plaintiffs’ business relationships with the insureds,” their

customers. (Id. at 13 (¶44)).

Despite the manner in which these claims are stated in the Complaint, the

tort of interference with a contract is a different cause of action than the tort of

interference with business relations. See Cenac, 609 So. 2d at 1268. Interference

with a contract occurs where a wrongdoer “intentionally and improperly interferes

with the performance of a contract between another and a third person by inducing

or otherwise causing the third person not to perform the contract.” Id. (quoting

Liston v. Home Ins. Co., 659 F. Supp. 276, 280 (S.D. Miss. 1986)). To properly state

a claim of this tort, the plaintiff must prove the existence of a “valid and enforceable

contract” between it and another party. Id. at 1269 (citing Mid-Continent Tel. Corp.

v. Home Tel. Co., 319 F. Supp. 1176, 1199-1200 (N.D. Miss. 1970)). See also Par

Indus., Inc. v. Target Container Co., 708 So. 2d 44, 48 (Miss. 1998) (citation

omitted). The defendant who is alleged to have tortiously interfered with the

contract must be a non-party to that contract. Cenac, 609 So. 2d at 1269 (citing

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Liston, 659 F. Supp. at 280). “In addition, the plaintiff must prove that the contract

would have been performed but for the alleged interference.” Par Indus., 708 So. 2d

at 48.

The tort of interference with business relations is also known as interference

with prospective business advantage, which is alleged as a separate claim in the

plaintiffs’ Complaint. (See Count 3, 2d Am. Compl. 13 (¶¶45-47), ECF No. 25).10

Tortious interference with business relations occurs “when a person unlawfully

diverts prospective customers away from one’s business.” Par Indus., 708 So. 2d at

48 (citing Cenac, 609 So. 2d at 1268-69). A cause of action exists “where one

engages in some act with a malicious intent to interfere and injure the business of

another, and injury does in fact result.” Id. The remedy for this tort is damages,

and the plaintiff must show (1) a loss, and (2) that defendant’s conduct caused the

loss. Id.

Under Mississippi law, the elements that a plaintiff must demonstrate to

prove tortious interference with a contract are the same as tortious interference

with business relations. They are:

(1) that the acts were intentional and willful;

The Complaint alleges the same underlying facts to support the claims of 10

tortious interference with business relations and interference with prospectivebusiness advantage. (See 2d Am. Compl. 13 (¶46), ECF No. 25). The plaintiffs do

not distinguish between these claims in response to the Motions for Summary

Judgment. Because these claims are the same under Mississippi law, and the

parties have treated them as such in their briefing, the Court will address them

together herein as tortious interference with business relations.

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(2) that they were calculated to cause damage to the

plaintiffs in their lawful business;

(3) that they were done with the unlawful purpose of

causing damage and loss, without right or justifiable

cause on the part of the defendant (which constitutesmalice); and

(4) that actual damage and loss resulted.

Par Indus., 708 So. 2d at 48 (citing Cenac, 609 So.2d at 1268-69) (additional citation

omitted).

The parties’ summary judgment arguments with respect to this claim differ

in some respects, and therefore the Court will address each defendant separately.

Direct General

Defendant Direct General asserts that the plaintiffs have failed to show that

it forced the plaintiffs to breach any contracts or to lose any potential customers or

business. In response to Direct General’s Motion for Summary Judgment, the

plaintiffs essentially restate, almost verbatim, the general allegations set forth in

Counts 2 and 3 of their Complaint. They do not address the elements of the torts

they allege Direct General committed. Moreover, they do not point to any evidence,

or specify any contract or customer, that relates to these claims. Instead, they

make the unsupported assertion that unspecified “Direct General employees” have

made various statements to the plaintiffs’ customers. (Pl. Mem. in Supp. of Resp. to

Direct General Mot. for Summ. J. 9, ECF No. 580). However, the plaintiffs do not

cite to anything in the record to support this statement. They do not provide any

evidence of any existing or potential customer who went to a different repair shop

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because of some action by Direct General. As the plaintiffs have not presented any

evidence that could be submitted to a jury with respect to these allegations,

summary judgment will be granted in favor of Direct General on the plaintiffs’

claims of tortious interference with a contract, tortious interference with business

relations, and interference with prospective business advantage.

GEICO

Defendant GEICO moves for summary judgment on the grounds that the

plaintiffs have not produced any admissible evidence that it harmed any of

plaintiffs’ existing contracts or interfered with any prospective customers. GEICO

further asserts that the plaintiffs do not have any evidence that it engaged in any

intentional act to cause damage to the plaintiffs’ businesses, or that the plaintiffs

suffered any actual damage or loss as a result of an action by GEICO.

In response to GEICO’s Motion for Summary Judgment, the plaintiffs put

forth the same, near-verbatim recitation of the Complaint that they asserted in

response to Direct General’s Motion for Summary Judgment. The plaintiffs also

make the non-specific statement that “GEICO employees” made various statements

to the plaintiffs’ customers, but cite to nothing in the record as evidence that these

statements were made. They do not point to any contract that GEICO caused not to

be performed, or even any specific customer that GEICO attempted to dissuade

from having repair work completed by the plaintiffs.

The plaintiffs do assert, however, that the GEICO defendants “undertake a

scheme whereby they . . . attempt to get their insureds to take their vehicles to a

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network (or ARX) shop.” (Pl. Mem. in Supp. of Resp. to GEICO Mot. for Summ. J.

14, ECF No. 579). They claim that GEICO attempts to convince its policyholder to11

allow the network or ARx shop to repair his or her vehicle in a “sales pitch” which

“involves mis-information and slander against the insureds’ preferred shop.” (Id. at

14-15). As evidence of this “scheme,” the plaintiffs assert: “This process is adduced

from the testimony of Geico’s 30(b)(6) deponent, Kevin Rustick,” which is attached

as an exhibit to their response. (Id. at 15).

The Court has reviewed Mr. Rustick’s testimony submitted by the plaintiffs,

but it does not establish that GEICO could be liable for tortious interference with

business relations. Mr. Rustick’s testimony consisted largely of the following:

A. [O]ur position is the same. If you go to Clinton Body

Shop . . . sure, we work with them on a regular basis. If

you have an ARX appointment at our shop where it was

already explained to you, we would not explain the

benefits of the ARX program? Of . . . course we would.

But if the customer says, I want to go somewhere else, . . .

we have no issue with that. In fact, we welcome . . .. . .

If the customer says they want to go to another facility,

we welcome that going to another facility, yes.

Q. [ ] But prior to the . . . customer making that election,

do you tell them possible benefits from being at the

network shop?

. . . .

If we’re referring to the ARX setting, then, yes. If prior toa customer explaining to us that they have a preference of

GEICO has explained in briefing that its referral program is called the11

“Auto Repair Xpress Program” (also known as “ARx”).

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a body shop, we . . . do discuss the benefits of the ARX

program.

Q. [ ] You discuss with them the issues of warranties at

those ARX shops?

A. Sure. The benefits of the program, yes.

Q. Do you talk to them about how the agents are more

accessible at the ARX shop?

. . . .

A. That is a benefit of the program, yes ma’am.

Q. Do you tell them that they can get the work done more

quickly at the ARX shop?

. . . .

A. We . . . do mention that cycle time as a priority in . . .

the ARX setting.

. . . .

Q. When you are talking to your insured about the

benefits of . . . an ARX shop, does . . . your adjusters have

at their disposal similar statistics for the independent

shop? . . . . Do you give them information about the

independent shop?

A. No.

(Rustick Dep. 107:4-109:1, 110:21-111:7, Pl. Mem. in Supp. of Resp. to GEICO Mot.

for Summ. J. Ex. J, ECF No. 579-10).

The process described by Mr. Rustick does not amount to evidence that could

establish the tort of interference with business relations. This does not

demonstrate some unlawful purpose or malicious intent on the part GEICO, or that

GEICO’s program is calculated to cause damage and loss to the plaintiffs, which is

what is required under Mississippi law to state such a claim. See Christmon, 82 F.

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Supp. 2d at 615-16 (finding that Allstate’s referral program, under which certain

repair shops were pre-approved and Allstate recommended those shops to its

policyholders, did not amount to tortious interference with business relations

because the plaintiff had no evidence that program was calculated or intended to

cause damage to his business).

Moreover, in order to prove the tort of interference with business relations,

the plaintiffs must show that actual damage and loss resulted from the defendant’s

conduct. The plaintiffs assert that the “Geico defendants knew or should have

known that such representations . . . would lead the hearer to believe the

statements to be true . . . and take actions based on such relation; to wit, taking

their vehicles to other shops.” (Pl. Mem. in Supp. of Resp. to GEICO Mot. for

Summ. J. 15, ECF No. 579). This is merely a repetition of an allegation set forth in

the plaintiffs’ Complaint, and is the type of unsupported conclusion that is

insufficient to overcome summary judgment. The plaintiffs do not point to any

actual evidence that they incurred damage or economic loss as a result of GEICO’s

ARx program.12

The plaintiffs do not point to this particular testimony, but in reviewing the12

evidence submitted by GEICO in support of summary judgment, the Court noted

that Plaintiff Daniel Mosley testified about a customer named “Ms. Suarez” who

was a GEICO policyholder and took her vehicle to a different repair shop. Mr.

Mosley testified that he “believe[d]” that her decision was a result of “what GEICOtold her” regarding a warranty and guarantee of repairs. (D. Mosley Dep. 155:23-

156:5, GEICO Mot. for Summ. J. Ex. 2, ECF No. 479-2). However, Mr. Mosley also

stated that he did not know all of the specifics of Ms. Suarez’s conversation with

GEICO, or whether that was “all of it” in terms of why she opted to take her vehicle

elsewhere. (Id. at 154:18-155:22). There is no evidence that the plaintiffs had a

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The plaintiffs have failed to establish any of the elements of tortious

interference with a contract or tortious interference with business relations with

respect to GEICO. Accordingly, GEICO is entitled to summary judgment on these

claims.

Progressive

Defendant Progressive has moved for summary judgment on the grounds

that the plaintiffs have not met the required elements of the tortious interference

claims. Progressive argues that it preserves its policyholders’ choice of where to

have vehicles repaired, that the plaintiffs have not demonstrated that Progressive

interfered with their customers, and that the plaintiffs have not demonstrated that

they suffered any injury or that Progressive acted with a willful intent to harm the

plaintiffs.13

Progressive points out in its Motion for Summary Judgment that, during the

discovery process, the plaintiffs identified six customers with whom they alleged

Progressive interfered. Progressive asserts that of those individuals, five chose to

contract with Ms. Suarez to support a tortious interference with a contract claim.

Moreover, Mr. Mosley’s testimony regarding what Ms. Suarez may have told him is

inadmissible hearsay, and it does not establish that GEICO took action without

justifiable cause for an unlawful purpose of causing harm to the plaintiffs. See

Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995) (“Evidence on summary judgment

may be considered to the extent not based on hearsay.”) (citations omitted).

Progressive also asserts that it shares a “qualified privilege” with its13

customers that bars the plaintiffs’ claims. Because the Court finds that the

plaintiffs have not established a prima facie claim, there is no need to reach this

issue.

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have their vehicles repaired at the plaintiffs’ body shop, and the sixth opted not to

have his vehicle repaired at all, but instead chose to trade in his vehicle.

(Progressive Mem. in Supp. of Mot. for Summ. J. 5-6, ECF No. 452). In support of

their Motion, Progressive has submitted information from its claim files with

respect to these individuals, as well as deposition testimony regarding their vehicle

repairs. (See Progressive Stmt. of Undisputed Facts in Supp. of Mot. for Summ. J.

Exs. J, ECF No. 537-4; Ex. K, ECF No. 537-5; Ex. L, ECF No. 463-12; Ex. M, ECF

No. 463-13; Ex. N, ECF No. 463-14; Ex. O, ECF No. 537-6; Ex. P, ECF No. 537-7;

Ex. Q, ECF No. 537-8; Ex. R, ECF No. 537-9).

In response to Progressive’s Motion, the plaintiffs, again, do not address the

specific elements of the alleged torts. Instead, they make a generalized argument

regarding defamation and tortious interference with business relations, and they

assert that the issue of whether Progressive acted with malice, and the question of

damages, are properly submitted to a jury. The plaintiffs do not submit any

contracts that they allege were not performed because of Progressive’s interference.

The plaintiffs do not respond directly to Progressive’s assertions and evidence

regarding the six individuals identified during discovery. However, the plaintiffs

submit deposition testimony of John Mosley and Daniel Mosley in reference to their

defamation claim, which includes some testimony regarding those individuals. For

example, John Mosley testified that customer Keith Hammitt had brought his

vehicle to one of the plaintiff repair shops, but he became “aggravated” when

Progressive tried to get him to take his car to a network shop. (Pl. Mem. in Supp. of

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Resp. to Progressive Mot. for Summ. J. 8, ECF No. 582). Mr. Hammitt eventually

decided to trade in his vehicle instead of having it repaired. (Id.). The plaintiffs do

not submit any documentation with respect to Mr. Hammitt, so it is not clear

whether the plaintiffs had a contract with him. As the plaintiffs have not

demonstrated that an existing contract was not performed, they cannot base a claim

of tortious interference with a contract on this testimony. Moreover, Mr. Mosley’s

testimony regarding what Mr. Hammitt said about his conversations with

Progressive is hearsay. Hearsay evidence is not sufficient to overcome summary

judgment. See Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995) (inadmissible

hearsay evidence may not be considered on summary judgment). Finally, this

testimony does not demonstrate that Progressive acted with an unlawful purpose to

harm the plaintiffs’ business.

Four of the other customers identified in Progressive’s Motion are referenced

in the remaining deposition testimony submitted by the plaintiffs. (See Pl. Mem. in

Supp. of Resp. to Progressive Mot. For Summ J. 8-11, ECF No. 582) (discussing

customers Fred Cessna, Kendrick Ray, Elizabeth Flynn, and Rebecca Webster).

This testimony does not establish that Progressive caused any contracts between

those individuals and the plaintiffs not to be performed; instead, it confirms that

those individuals all had their cars repaired by the plaintiffs. Accordingly, the

plaintiffs’ testimony with respect to those customers does not establish tortious

interference with a contract or tortious interference with business relations. The

last customer identified in Progressive’s Motion for Summary Judgment is Candace

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materials that Progressive has produced regarding its employees’ communications

with policyholders. (Progressive Mem. in Supp. of Mot. for Summ. J. Ex. E, ECF

No. 537-1; Ex. F, ECF No. 537-2; Ex. G, ECF No. 537-3). These materials do not

amount to evidence of tortious interference with business relations. They

demonstrate that Progressive has directed its employees to “[e]xplicitly tell

customers they can have their car repaired anywhere they’d like,” and not to push a

policyholder exclusively to a network shop. (See id. Ex. E, ECF No. 537-1). The

“script” relied on by the plaintiffs is not evidence that Progressive has, for some

unlawful purpose, directed potential customers away from the plaintiffs’ businesses.

It is a rather generic list of instructions to Progressive employees about their

conversations with insureds following automobile accidents. (See id. Ex. F, ECF No.

537-2; Ex. G, ECF No. 537-3). While it does direct Progressive employees to tell

policyholders about network repair shops, that does not amount to evidence that

this document is intended to cause harm to the plaintiffs. See Christmon, 82 F.

Supp. 2d at 615-16 (finding that Allstate’s recommendation of network shops did

not amount to tortious interference with business relations).

The plaintiffs have failed to demonstrate that any of their contracts with

their customers were not performed because of some unlawful action on the part of

Progressive. Nor have they demonstrated that Progressive willfully and

unjustifiably caused potential customers to take their business elsewhere with the

unlawful purpose of causing damage and loss to the plaintiffs. Accordingly,

Progressive is entitled to summary judgment on the plaintiffs’ claims of tortious

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economic or pecuniary value.” Id. at 632 (citation omitted). There are certain

statements considered to be actionable per se under Mississippi law, which do not

require proof of special harm. Such statements include, inter alia, “[w]ords

imputing a want of integrity or capacity, whether mental or pecuniary, in the

conduct of a profession, trade or business.” Id. (citing W.T. Farley, Inc. v. Bufkin,

132 So. 86, 87 (Miss. 1931)).

The defendants have moved for summary judgment on the grounds that the

plaintiffs have failed to establish the requisite elements of this tort. The parties’

arguments with respect to the defamation claim differ in certain respects, and

therefore the Court will address this claim against each defendant individually.

Direct General

Direct General argues that the plaintiffs have not put forth any admissible

evidence that Direct General made false, defamatory statements about the

plaintiffs, and therefore it is entitled to summary judgment on this claim. In

response to Direct General’s Motion, the plaintiffs submit what is basically a

recitation of their defamation claim as it is stated in their Complaint. This includes

the same generalized assertions about unnamed “Direct General employees” who

allegedly made statements to the plaintiffs’ customers regarding the repair time at

the plaintiff repair shops, the lack of a guarantee of their work, and the possibility

of running out of insurance-covered rental time. Again, the plaintiffs do not provide

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specific information about when these statements were made, or by whom.16

The only document plaintiffs submit in response to Direct General’s Motion

for Summary Judgment is a “statement” by Jaleesa Taylor, who the plaintiffs assert

is a Direct General policyholder. The statement provides that she was told by a

Direct General adjuster that “Clinton Body Shop charges outrageous and

unnecessary fees,” and that she may want to “review the charges and have Clinton

Body Shop checked out.” (Pl. Mem. in Supp. of Resp. to Direct General Mot. for

Summ. J. Ex. 1, ECF No. 580-1). However, this statement is unsworn and does not

qualify as an affidavit or other admissible evidence on which the Court could rely in

determining summary judgment. See Fowler, 68 F.3d at 126. As the plaintiffs have

failed to put forth admissible evidence to establish the elements of defamation with

respect to Direct General, Direct General is entitled to summary judgment on this

claim.

GEICO

GEICO moves for summary judgment on the grounds that the plaintiffs have

The plaintiffs do include a general citation stating, “See deposition16

testimony of John Mosley and Daniel Mosley.” (Pl. Mem. in Resp. to Direct General

Mot. for Summ. J. 12, ECF No. 580). The plaintiffs do not attach this deposition

testimony to their response to Direct General’s Motion; nor do they point to an

exhibit number or specific pages of these depositions. There are multiple exhibits in

the record that contain deposition testimony given by John Mosley and DanielMosley, who both testified multiple times in this action, so it is not clear to the

Court what testimony the plaintiffs are referencing. However, the Court has

reviewed the testimony of John Mosley and Daniel Mosley that is attached to other

pleadings related to summary judgment, and does not find evidence that Direct

General made defamatory statements regarding the plaintiffs.

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not proved that it made any false, defamatory statements about the plaintiffs.

GEICO points out that the plaintiffs have not put forth any evidence regarding any

statements made by GEICO prior to the filing of their Complaint. (GEICO Mem. in

Supp. of Mot. for Summ. J. 15, ECF No. 480). GEICO submits John Mosley’s

deposition testimony, in which he admitted as much. (J. Mosley Dep. 16:10-16,

GEICO Mot. For Summ. J. Ex. 3, ECF No. 479-3). GEICO also asserts that the only

evidence the plaintiffs have submitted with respect to this claim are statements

made well after this lawsuit was filed by an individual named Dicky Robertson.

GEICO maintains that Mr. Robertson is not a GEICO employee, and that his

statements are not attributable to GEICO.

In response to GEICO’s Motion for Summary Judgment, the plaintiffs argue

that GEICO’s “defamatory statements against the Plaintiffs’ business are

actionable per se,” and that the “[a]ssessment of damages is a fact question for the

jury.” (Pl. Mem. in Supp. of Resp. to GEICO Mot. for Summ. J. 18, ECF No. 579).

As evidence of GEICO’s alleged defamation, the plaintiffs submit “statements from

Geico’s employee Dicky Robertson.” (Id.). These “statements” consist of what

appears to be a printed page from a social media website (e.g., Facebook)

maintained by Dicky Robertson. The page includes the following statements, which

are attributed to Mr. Robertson:

“Clinton Body Shop uses their personal relationships with

our Savior to advertise for business. NEVER TRUST THE

MAN THAT USES GOD TO GET MONEY BECAUSE

MOST OF THE TIME MONEY IS HIS GOD.”

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“CLINTON BODY SHOP has been bashing the insurance

industry in MS for decades and thus potentially

alienating insurance personnel of all fields. DO YOU

REALLY WANT TO DO BUSINESS WITH A BUSINESS

THAT ALIENATES AN ENTIRE INDUSTRY AND IS

TOO DUMB TO KNOW IT?”

(Id. Ex. M, ECF No. 579-13). The plaintiffs do not respond to GEICO’s assertion

that Mr. Robertson is not a GEICO employee; nor do they explain who Mr.

Robertson is, or why his statements could be attributable to GEICO. In any event,

this page from a social networking site, which contains what amount to opinions of

an individual not proven to be speaking on behalf of GEICO, is insufficient to

establish that GEICO has committed defamation.

The plaintiffs also cite to a portion of John Mosley’s testimony in the Rule

30(b)(6) deposition of the plaintiffs’ businesses. (Id. Ex. N, ECF No. 579-14).

However, the document that the plaintiffs reference consists of Mr. Mosley’s

testimony regarding the materials he reviewed to prepare for the deposition, and

confirming that he was the appropriate designee. It does not contain information

that has any bearing on the defamation claim. The plaintiffs have submitted

additional testimony by John Mosley in a separate exhibit, in which he stated:

In my opinion, it’s defamatory to me when – when I had

customers tell me that an appraiser for Geico told them

that it’s going to cost more at Clinton Body Shop or that,

you know, if you take it there, it’s going to take longer, we

may not guarantee the work. It’s putting something inthat customers’ mind that makes them think that Clinton

Body Shop does substandard work.

(J. Mosley Dep. 19:14-22, Pl. Mem. in Supp. of Resp. to GEICO Mot. for Summ. J.,

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Ex. I, ECF No. 579-9). This testimony does not identify any specific statement by

GEICO, and is at most general hearsay regarding what the plaintiffs’ “customers”

said, and is not admissible. Finally, the plaintiffs also point to the deposition

testimony of GEICO’s Rule 30(b)(6) designee, Kevin Rustick, to argue that GEICO

cannot demonstrate that the plaintiff repair shops take longer to repair vehicles

than GEICO’s network shops. However, GEICO’s ability to demonstrate a

difference in the repair times is irrelevant because the plaintiffs have not proven

that GEICO made any statements regarding the length of time that the plaintiffs

take to repair vehicles.

The plaintiffs have not established the elements of defamation with respect

to GEICO. Accordingly, GEICO is entitled to summary judgment on this claim.

Progressive

Progressive has moved for summary judgment on the basis that the plaintiffs

have failed to establish the elements of defamation under Mississippi law.

Progressive points out that while the plaintiffs have testified in their depositions

about statements they allege were made by Progressive, this testimony is not

admissible to prove defamation.

In response, the plaintiffs argue that Progressive’s defamatory statements

are actionable per se, and that the question of damages is for a jury to determine.

They assert that “John Mosley and Daniel Mosley . . . testified exhaustively about

defamatory statements made about their businesses by employees of Defendant

Progressive.” (Pl. Mem. in Supp. of Resp. to Progressive Mot. for Summ. J. 7, ECF

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No. 582). The plaintiffs include several pages of quoted deposition testimony in

their brief, but the Court finds that none of this testimony establishes the tort of

defamation. The testimony consists of John Mosley’s and Daniel Mosley’s

statements about what their customers told them about statements made by

Progressive. For example, John Mosley testified that customer Keith Hammitt was

told by a Progressive employee that the plaintiffs would “take too long” to repair his

car; that customer Fred Cessna told Mosley that Progressive told Mr. Cessna that

the plaintiff repair shops were not in Progressive’s network; and that other

unnamed customers have told Mosley that Progressive told them that “Clinton Body

Shop may take longer” or “may charge you more,” and that “We don’t guarantee

their work.” (Id. at 8-9).

These statements, and the other testimony submitted by the plaintiffs about

what their customers told them, are hearsay. The plaintiffs have not submitted any

affidavit or deposition testimony by these (or other) customers, who could have

provided sworn, admissible evidence regarding what Progressive may have stated

to them about the plaintiffs. Again, the Court cannot rely on hearsay testimony to

determine that the plaintiffs have established that Progressive has made false,

defamatory statements, or to defeat a summary judgment motion under Rule 56.

Finally, the plaintiffs also assert that Progressive has no evidence that the plaintiff

repair shops take longer to complete repairs than Progressive’s network shops. This

is irrelevant because the plaintiffs have not proven that Progressive made any

statements about the length of repair time at the plaintiff repair shops.

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The plaintiffs have not put forth admissible evidence to establish the tort of

defamation. Accordingly, Progressive is entitled to summary judgment on this

claim. See Hardy Bros. Body Shop v. State Farm Mut. Auto. Ins. Co., 848 F. Supp.

1276, 1289 (S.D. Miss. 1994) (where affidavits submitted by the plaintiffs showed

that State Farm’s customers were not dissuaded from dealing with the plaintiffs’

repair shop, evidence did not establish that the plaintiffs were injured in their

trade, business or profession, and defamation claim failed).

VII. Business Oppression

Count 8 of the Complaint alleges a claim of “business oppression.” The

plaintiffs assert that the defendants have willfully and maliciously “caused

irreparable financial, emotional, and other damages to the plaintiffs . . .

individually and as a business.” (2d Am. Compl. 17-18 (¶62), ECF No. 25). As the

defendants point out in their summary judgment motions, there is no cause of

action for “business oppression” under Mississippi law. The plaintiffs have failed to

point to any authority to show that this claim is legally cognizable. Accordingly,

summary judgment will be granted on this claim.

VIII. Emotional Distress Claims

Count 9 of the Complaint alleges claims of intentional and negligent

infliction of emotional distress. The Complaint states that the defendants’ “extreme

and outrageous acts” have “emotionally harmed the plaintiffs.” (2d Am. Compl. 18

(¶63), ECF No. 25). The parties’ briefing has confirmed that these claims were

brought by the individual plaintiffs, not the repair shops, and the plaintiffs have

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submitted that Daniel Mosley’s individual claim of emotional distress should be

dismissed. (Pl. Mem. in Supp. of Resp. to Progressive Mot. for Partial Summ. J. 3,

ECF No. 248). Accordingly, the Court need only address John Mosley’s claims of

emotional distress.

The defendants move for summary judgment on the grounds that John

Mosley has failed to establish the requisite elements of either claim. The plaintiffs’

briefs in response to the Motions for Summary Judgment do not distinguish

between intentional infliction of emotional distress and negligent infliction of

emotional distress. These claims are distinct under Mississippi law.

Intentional Infliction of Emotional Distress

“Meeting the requisite elements of a claim for intentional infliction of

emotional distress is a tall order in Mississippi.” Jenkins v. City of Grenada, Miss.,

813 F. Supp. 443, 446 (N.D. Miss. 1993). Such a claim requires the defendant's

“conduct to be so outrageous in character, and so extreme in degree, as to go beyond

all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Raiola v. Chevron U.S.A., Inc., 872 So. 2d 79,

85 (¶23) (Miss. Ct. App. 2004) (citation omitted). For example, the Mississippi

Supreme Court has pointed out that “[a]mong the kind of actions that have been

found to evoke such outrage were a plot by a girlfriend and her parents to hide the

child of an unwed father, arranging for the baby to be adopted by strangers while

the father pursued a custody suit.” Speed v. Scott, 787 So. 2d at 630 (discussing

Smith v. Malouf , 722 So. 2d 490, 498 (Miss. 1998), and finding that plaintiff had

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harm to him personally. The plaintiffs’ allegations in this lawsuit are based on the

defendants’ refusal to pay claims related to automobile repairs, in what is

essentially an extended business dispute. This is not the type of conduct that would

permit a jury to conclude that the defendants’ actions are so outrageous and

extreme as to be “intolerable in a civilized society.” Accordingly, summary

judgment will be granted on this claim.

Negligent Infliction of Emotional Distress

In order to succeed on a claim of negligent infliction of emotional distress,

Plaintiff John Mosley must prove “the usual elements of duty, breach, causation

and damages,” as well as “some sort of physical manifestation of injury or

demonstrable harm, whether it be physical or mental, and that harm must have

been reasonably foreseeable to the defendant.” Stewart v. GMAC Mortgage, LLC ,

No. 2:10-CV-00149-DCB, 2011 WL 1296887, at *10 (S.D. Miss. Mar. 31, 2011)

(quoting Fouche v. Shapiro & Massey LLP , 575 F. Supp. 2d 776, 788-89 (S.D. Miss.

2008); Am. Bankers’ Ins. Co. of Fla. v. Wells, 819 So. 2d 1196, 1208 (Miss. 2001)).

Defendants argue that they do not owe a duty to Mosley, and that Mosley has not

demonstrated the type of harm required to succeed on this claim.

In response, Plaintiff Mosley does not address the issue of duty, or any of the

remaining required elements of a negligence claim. He simply argues that he “has

established through medical expert records of Dr. Wheat, his personal physician

named as an expert herein, that the actions of the Defendants have elevated his

blood pressure.” (Pl. Mem. in Supp. of Resp. to GEICO Mot. for Summ. J. 29, ECF

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No. 579). He cites his own deposition testimony that he has “had problems with17

[his] blood pressure” and he does not “sleep much at night for worrying about all

this mess.” (Id.)

Given that Mosley has not addressed the issue at all, he has failed to

demonstrate that any of the defendants owed him any duty, which is the first

element of a negligence claim. Of course, it follows that Mosley has also failed to

demonstrate a breach of any duty. Mosley has failed to establish the elements of 18

negligent infliction of emotional distress, and summary judgment will be granted on

this claim.

IX. Quasi-Estoppel

Finally, Count 10 of the Complaint asserts a claim of “quasi-estoppel.” The

However, Mosley does not submit Dr. Wheat’s records or expert report as17

evidence in response to the summary judgment motions. The Court has considered

Dr. Wheat’s report, deposition testimony, and records that were submitted by thedefendants, and those that were filed in connection with the defendants’ motions to

exclude Dr. Wheat’s testimony. (See, e.g., ECF No. 434, ECF No. 436-1, ECF No.

445-4, ECF No. 445-5, ECF No. 465-3).

Moreover, even if Mosley had established that the elements of duty, breach,18

and causation, it is doubtful that he could put forth “substantial proof of emotional

harm,” which is required to recover for negligent infliction of emotional distress.

Evans, 36 So. 3d at 476 (¶53). Mosley’s physician noted he has had “some elevation

in his blood pressure,” but Mosley was never medicated or treated for elevated blood

pressure. (Wheat Dep. 63:9-10, 83:3-9, Progressive Aff. in Supp. of Mot. to Exclude,

ECF No. 436-1). Other than that, the only harm Mosley has alleged is that he doesnot “sleep much.” Mississippi courts have consistently held that sleeplessness is

insufficient to support a claim for emotional distress. See Evans, 36 So. 3d at 476

(¶53) (citing Ill. Cent. R.R. Co. v. Hawkins, 830 So. 2d 1162, 1175 (¶27) (Miss.

2002); Wilson v. General Motors Acceptance Corp., 883 So. 2d 56, 65 (¶28) (Miss.

2004)).

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plaintiffs allege that when it has been to their advantage to do so, the defendants

have relied on the national databases, but at other times have refused to

compensate the plaintiffs according to those same databases. The Complaint seeks

“to have the defendants estopped from denying the applicability and reasonableness

of the procedures and costs set forth in the industry databases.” (2d Am. Compl. 19

(¶68), ECF No. 25).

The defendants have moved for summary judgment on this claim on the

grounds that quasi-estoppel is an affirmative defense, and not a cause of action,

under Mississippi law. In response, the plaintiffs simply argue that the defendants’

arguments are based on “improper analysis,” but offer no authority for their

argument that quasi-estoppel is an affirmative claim. (See Pl. Mem. in Supp. of

Resp. to Progressive Mot. for Partial Summ. J. 13-14, ECF No. 248).

Quasi-estoppel is not recognized as an independent, affirmative claim under

Mississippi law. See T.C.B. Constr. Co., Inc. v. W.C. Fore Trucking, Inc., 134 So. 3d

752, 764 (Miss. Ct. App. 2012) (“Quasi-estoppel is not an independent claim that

must be pled . . . Rather, quasi-estoppel is an affirmative defense.”) (citations

omitted). While “[t]ypically, it is the defendant who affirmatively pleads

quasi-estoppel to show the plaintiff’s claim is based on an inconsistent position,” the

Mississippi Court of Appeals has noted that “a plaintiff . . . may also assert

quasi-estoppel in response to the defendant’s answer.” Id. (citation omitted). This

Court has noted that the Mississippi Supreme Court “has described equitable

estoppel as a ‘shield and not a sword.’” Evergreen Lumber & Truss, Inc. v.

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CertainTeed Corp., No. 1:12CV264-HSO-RHW, 2013 WL 5817587, at *5 (S.D. Miss.

Oct. 29, 2013) (quoting Long Meadow Homeowners’ Ass’n, Inc. v. Harland, 89 So.3d

573, 577 (Miss. 2012)).

The plaintiffs have not cited any authority or case under which equitable

estoppel has been considered to be an affirmative cause of action, or where a

plaintiff has been entitled to relief under such a claim. The defendants are entitled

to summary judgment on this claim.

X. Standing

The defendants have made arguments regarding the individual plaintiffs’

standing to bring several of the claims stated in the Complaint. (See, e.g.,

Progressive Mem. in Supp. Mot. for Partial Summ. J. 17-19, ECF No. 200). As the

plaintiffs’ claims are dismissed on other grounds, the Court need not address the

parties’ standing arguments.

CONCLUSION

For the reasons set forth above, the Court finds that the plaintiffs have not

met their summary judgment burden to support the claims stated in their Second

Amended Complaint. Accordingly, the defendants are entitled to summary

judgment.

IT IS THEREFORE ORDERED AND ADJUDGED that the Motion [198]

for Partial Summary Judgment filed by Defendant Progressive Insurance Company,

the Motion [451] for Summary Judgment filed by Defendant Progressive Insurance

Company, the Motion [445] for Summary Judgment filed by Defendant Direct

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General Insurance Company, and the Motion [479] for Summary Judgment filed by

Defendant GEICO Insurance Company are GRANTED.

SO ORDERED AND ADJUDGED this the 16 day of December, 2014.th

s/ Louis Guirola, Jr.LOUIS GUIROLA, JR.

CHIEF U.S. DISTRICT JUDGE


Mosley vs. Norquist Summary Judgment

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