Jonathan Masters Appointed DRI State Representative

Jonathan Masters Appointed DRI State Representative

Jonathan Masters has been selected as the Defense Research Institute (DRI) state representative for Mississippi by the Mississippi Defense Lawyers Association (MDLA), of which he is the immediate past president. In his role as state representative, Mr. Masters will facilitate the flow of communication between DRI and MDLA, growing connections between the state and national voice of the defense bar, facilitating in opportunities in both the MDLA and DRI and strengthening the defense bar as a whole.

DRI is the international membership organization of all lawyers involved in the defense of civil litigation.  It is committed to enhancing the skills, effectiveness, and professionalism of defense lawyers; anticipating and addressing issues germane to defense lawyers and the civil justice system; promoting appreciation of the role of defense lawyers; and improving the civil justice system and preserving the civil jury.

Mr. Masters is a member of Holcomb Dunbar, Watts, Best, Masters & Golmon’ s Oxford office. He concentrates his practice on civil litigation across Mississippi and Tennessee assisting businesses to manage commercial litigation, defending auto and premises matters and insurance coverage disputes.

Please join us in congratulating Mr. Masters on this appointment. Learn more about DRI | Lawyers Representing Business and Mississippi Defense Lawyers Association – Home (

For more information, visit

Mississippi Premises Liability

Premises liability is a theory of negligence which establishes the duty owed to someone injured on a landowner’s or occupier’s premises as a result of conditions or activities on the premises.  In Mississippi, premises liability is distinguished by the classification of the complaining party between invitee, licensee, and trespasser in relation to the location of the injury.  Though the Mississippi Supreme Court has been repeatedly asked to abolish these distinctions the Court has declined to do so. See Titus v. Williams, 844 So.2d 459 (Miss. 2003); see also Pinnell v. Bates, 838 So.2d 198 (Miss. 2002).  In Pinnell, the Court stated “[t]here is no compelling reason to change our time-honored law on premises liability now.  The distinctions between licensee and invitee have been developed over many years and have been grounded in reality.” Id. at 199.

Analyzing A Premises Liability Claim

Premises cases are analyzed under the general negligence standard.  Did the premises owner breach a duty owed to the claimant which caused injury or damages — duty, breach, proximate cause and damages.  However, to determine the particular duty and breach in a premises’ liability case, there is a three-step process. 

See, Leffler v. Sharp, 891 So. 2d 152 (Miss. 2004).

Was the Claimant an Invitee, Licensee, or Trespasser

Mississippi maintains the distinction between invitee, licensee, and trespasser.  When determining the status of an injured party, the facts must be examined and in particular the relationship between the injured person and location where the injury occurred. 


A trespasser is “one who enters upon another’s premises without license, invitation or other right.” Hughes v. Star Homes, Inc., 379 So. 2d 301, 303 (Miss. 1980) (citing Kelley v. Sportsmen’s Speedway, Inc., 224 Miss. 632, 80 So. 2d 785 (1955).  The Mississippi Supreme Court added that a trespasser enters another’s property “merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement or express or implied assurance of safety from the owner or person in charge.” Titus v. Williams, 844 So.2d 459 (Miss. 2003) (citing White v. Miss. Power & Light Co., 196 So.2d 343, 349 (Miss. 1967)).

Mississippi codified the definition of a trespasser in the 2016 legislative session.  See, Miss. Code Ann. 95-5-31.  This law defines trespasser as “a person who enters upon the property of another without permission and without an invitation, express or implied, or other legal right.”


A man left the lounge area of the Quarter Inn, a restaurant and lounge in Vicksburg, Mississippi, and climbed through an open window leading to an adjacent rooftop terrace.  It was a small window, three feet off the ground and 24 inches by 32 inches.  Further, a locked glass door with “NOT AN EXIT” stenciled on the glass was only four feet away from the window.  The man fell through the rooftop approximately twenty feet to the ground.  The Court noted that he was an invitee at the time he entered the Quarter Inn, however, he became a trespasser when he climbed onto the rooftop terrace. Leffler v. Sharp, 891 So.2d 152 (Miss. 2004).

The local Parent Teacher Association was holding a Winter Carnival at East Tate Elementary School.  Anthony Gammel planned on attending the Winter Carnival and parked across the street from the school in the school’s bus parking lot.  Anthony was struck by a motorist and killed as he attempted to walk across the roadway to the school.  The Court noted the bus parking lot was limited to bus parking only and not used as parking for the general public.  The Court held that Anthony was a trespasser on the school’s property when he chose to park in the bus parking lot.  Additionally, the Court noted that Anthony lost his status as a trespasser the moment he stepped off the bus parking lot onto the public roadway, and thus was unable to establish any duty owed at the time of the accident by the school. Gammel v. Tate County School District, 995 So.2d 853 (Miss.Ct.App. 2008).


“A licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner…” Little v. Bell, 719 So. 2d 757, 760 (Miss. 1998) (quoting Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978)).

A “social guest” is classified as a licensee, or someone who enters a landowner’s or occupier’s premises for his own benefit, pleasure or convenience and with the implied permission of the owner or occupier. Grammar v. Dollar, 911 So.2d 619 (Miss.Ct.App. 2005).


Nuñez was visiting her family and riding an ATV when she crashed into a barbed-wire fence and thrown from the ATV.  She alleged that the ATV’s steering and brakes failed and that the owner, Spino, was aware of the problems but failed to warn.  In finding that Nuñez was a licensee, the Court noted that she was on Spino’s property riding his ATV for her own pleasure and benefit and was clearly a social guest.  The Court further noted that although Nuñez on occasion does some work for Spino, she was merely visiting her family and was not performing any work on the date of the jury. Nuñez v. Spino, 14 So.3d 82 (Miss.Ct.App. 2009).

Plaintiff fell on a walkway and was injured while viewing a neighborhood outdoor Christmas display at the Millers’ residence.  Every year the Millers decorated their property with lighting displays and other items symbolic of Christmas and allowed visitors to walk about the property and view the displays.  The Millers did not charge admission or receive any form of monetary compensation from visitors to the property.  In finding Daulton to be a licensee, the Court noted that the landowner did not receive any tangible form of consideration or obtain any business advantage from the visitors. Daulton v. Miller, 815 So.2d 1237 (Miss.Ct.App. 2001).


An invitee is a person who goes onto the premises of another at the express or implied invitation of the owner or occupant for their mutual advantage.  Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978); Langford v. Mercurio, 254 Miss. 788, 183 So. 2d 150 (1966); Wright v. Caffey, 239 Miss. 470, 123 So. 2d 841 (1960).  A mutual advantage is needed to create invitee status.

Moreover, the benefit received cannot be psychological but must be tangible.  Rankin v. Matthews, 2015-CA-00553-COA (2016)(citing Daulton v. Miller, 815 So.2d 1237, 1240 (Miss. Ct. App. 2001)).  In Rankin, the Court of Appeals specifically rejected the musician/plaintiff’s assertion that enjoying a free music concert in his garage was a “mutual benefit” such that would convert Rankin into an invitee. ¶13.  See also, K.T. v. Klien Road Church of God, 2015-CA-00880-COA (2016)(Mississippi law does not recognize an intangible benefit as a benefit to the landowner in premises liability cases.) 


A hired housekeeper has been found to be an invitee in determining the homeowner’s duty of care owed toward the housekeeper. Vaughn v. Ambrosino, 881 So.2d 847 (Miss.Ct.App. 2003).

Church members who do not exceed the scope of the church’s invitation are invitees while attending church for church services or other related functions. Clark v. Moore Memorial United Methodist Church, 538 So.2d 760 (Miss. 1989).

A customer who went to a laundromat as a patron and allegedly tripped and fell on a soft drink can in the parking lot would be considered a business invitee for purposes of premises liability. Ballard v. Watkins, 938 So.2d 298 (Miss.Ct.App. 2006).

A drive-thru restaurant patron that never placed an order because the drive-thru line was too long but instead decided to exit the drive-thru line in an effort to leave the restaurant’s premises was found to be an invitee. Magnusen v. Pine Belt Inv. Corp., 963 So.2d 1279 (Miss.Ct.App. 2007).

A teenager who was visiting his uncle at his uncle’s apartment complex and drowned while swimming in complex’s swimming pool was held to be an invitee. Handy v. Nejam, 2010-CA-01513-COA (2012).  The Court noted that the teenager entered the premises as his uncle’s guest and was presumed to be an invitee under the law.

Change in Status

A person’s status can change depending on the circumstances.  If an injured party goes beyond the bounds of their invitation, they may lose the invitee status and rights which accompany such. Dry v. Ford, 238 Miss. 98, 117 So.2d 456 (Miss. 1960).


An injured party who asked a garage owner to fix his truck was an invitee.  However, when the injured party was allowed by the garage owner to use the facilities to fix his own truck, he became a licensee.  Dry v. Ford, 238 Miss. 98, 117 So.2d 456, 458 (Miss. 1960).

A customer enjoyed an invitation to visit a plant nursery during its operating hours and would be an invitee of any of these visits.  However, one evening he went to the nursery while it was closed and was injured by a heating unit.  The Court found that at that particular time he was at best a licensee and at worst a trespasser.  Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 38 (Miss. 1989).

A daily newspaper delivery person was assumed by the court to be an invitee when he entered an office building to deliver and leave the morning newspaper for tenants in that building.  One early morning, the paperboy entered the building, and the lights were off.  He decided to open a closed elevator door and place the newspapers on the elevator floor.  He opened the closed door and attempted to place the newspapers in the elevator, however, he fell in the elevator shaft and injured himself as the elevator was not on that floor.  The Court held that he went beyond his limits of invitation by opening a closed or fastened door and was thus a licensee at the time of his injury. Selby v. McWilliams Realty Corp., 246 Miss. 568, 151 So.2d 596 (Miss. 1963).

Starting a CBD and Hemp Retail Business in Mississippi

As a child of the 80s it’s strange to see CBD and hemp retail businesses on the corner. Indeed, 11 states now have legalized recreational marijuana, and over half of the states have medical marijuana programs. Even stranger for me as a lawyer is the growth of the legal issues surrounding the marketing and sale of these now legalized products. This has been particularly true with rapid growth in individuals opening business to sell approved hemp and CBD products since 2018. 

The President signed The Agriculture Improvement Act of 2018, Pub. L. 115-334, (the 2018 Farm Bill) into law on Dec. 20, 2018. This paved the way for CBD and hemp retail sales. The law changed certain federal authorities relating to the production and marketing of hemp, defined as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” In other words, cannabis plants and derivatives that contain no more than 0.3 percent THC on a dry weight basis are no longer controlled substances under federal law. Of course, the CBD/Hemp must come from licensed growers as Federal law will still consider CBD a narcotic if it was not supplied by a licensed hemp cultivator.

Regardless of the THC concentration, any cannabis-derived product is still subject to the Food and Drug Administration’s (FDA) regulations. The FDA has, however, been slow to issue clear guidance as to that types of CDB that may be sold and specific labeling requirements. Though it is very possible, the FDA will issue these final CBD regulations by the summer of 2021. 

That does not mean CBD and Hemp retail businesses re without guidance. Thus far the guidance has come in the form of existing laws and the FDA’s warning letters it issued since passaging the Farm Bill.

The FDCA prohibits the marketing of food (i.e., conventional food and dietary supplements) that contains substances that were first recognized in the marketplace as drugs—because they have been either approved or studied as drugs. In addition, over the last several years, the FDA has sent multiple warning letters citing “food products to which CBD had been added and CBD products marketed as dietary supplements.” The FDA has explained these warning letters, “allowing drug ingredients in foods can undermine the drug approval process and diminish commercial incentives for further clinical study of the relevant drug substance. It also raises questions about the safety to consumers of exposure from broader consumption of such ingredients.”

In addition, in a March 2020 report, the FDA hinted at how it is enforcing hemp and CBD products:

  • Products that are marketed with claims of therapeutic benefit, such as treating or curing serious diseases;
  • Products that contain contaminants, including THC; and
  • Products marketed with false or misleading claims or directed toward vulnerable populations (e.g., children).

In addition, marketing CDB to cure, treat or prevent diseases without reliable and competent scientific evidence may violate the Federal Trade Commission Act.

As things stand now, the FDA appears to be satisfied if the CBD product is not a food additive, is not marketed as a dietary supplement, and does not make health claims related to treating, preventing, or curing a disease. 

However, these rules and regulations stand to change at any time as this is still very much a developing area. Moreover, nearly every state has amended its state laws to conform with the Farm Bill. However, there are differences from one state to the next on just exactly how that attempt to comport to the Farm Bill. Indeed, some states seem to have laws which appear to conflict with some of the FDA’s limitations.

Mississippi’s CDB and Hemp Law

Mississippi amended its laws in 2019 to align with the Federal Farm Bill. See, Miss. Code Ann. 41-29-113 (as Amended in 2019 by House Bill 1547). This bill removed hemp-derived CBD oil products with a ratio of 20 to 1 (CBD and THC) from the Schedule I controlled substance list. 

In addition, Mississippi passed the Mississippi Hemp Cultivation Action in 2020 (Senate Bill 2725) authorizing the cultivation of hemp in Mississippi. Currently the only legal option for a producer to cultivate hemp in Mississippi is to get a hemp license from the U.S. Department of Agriculture (USDA) under the USDA Domestic Hemp Production Program. An applicant will not receive a USDA hemp production license if the applicant has been convicted of a felony related to a controlled substance in the last 10 years. The USDA hemp production licenses are active for three years. However, I suspect Mississippi will become more active in regulating Hemp production in the coming years . 

The Banking Challenge

Finding a reliable bank and credit card processor can be challenging under the sometimes incongruent laws. Under a technical reading of some applicable laws, money collected from a Hemp or marijuana-based business can be considered laundered and place a bank at risk of seizure by the federal government. Banks also risk losing their Federal Reserve account, besides facing social scrutiny. For these reasons, many banks have been reluctant to accept deposit from CBD and Hemp businesses. The AFE (Secure and Fair Enforcement) Banking Act is slowly inching its way through Congress and if passed should provide clarity to the banks to accept Hemp and marijuana-based business accounts.   

Similar issues surround locating a payment processing company for credit cards.

However, the ability to find companies willing to accept deposits and process charges is rapidly changing. Though there appears to be a general increase in fees over more traditional businesses. 


As a general rule, companies who comply with the Farm Bill (derived from industrial hemp that contains less than 0.3% THC) can ship their products anywhere in the United States. Though a few states may have additional limits.  However, the various shipping companies have taken different position of if they will ship and of any limitations. The USPS recently amended its regulations providing for the shipping of CBD products. 

The regulations and applicable laws continue to develop across the country.  While there is an ongoing effort to bring these laws in line with one another, we are still not quite there.  As a result, before opening any business handling, growing or selling hemp or CBD, a careful review should be taken to ensure compliance with the regulatory maze which currently exists.

If you have more questions, please contact Jonathan Masters


The information contained in this article is for general guidance on matters of interest only. The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report or laws may have changed or been reinterpreted. Accordingly, the information here is provided with the understanding that the authors are not providing legal, tax, or other professional advice and services and should not be used as a substitute for consultation with legal or other competent advisers for individual and specific advice.

GrubHub Ruling Draws New Line in Battles Over Driver Arbitration

If local Grubhub Inc. drivers deliver a restaurant’s desserts made from chocolate that traveled all the way from Switzerland, should that be enough to keep their wage claims in court? The Seventh Circuit recently said no, drawing a distinction that could send gig economy employment battles to private arbitration.Although the chocolate may have crossed borders, the delivery drivers themselves didn’t, the U.S. Court of Appeals for the Seventh Circuit said August 4. This means they didn’t engage in “interstate commerce,” which would have allowed them to avoid arbitration agreements they signed with their employer.Whether drivers are transportation workers in interstate commerce—and therefore can escape the reach of a federal law that favors arbitration of legal disputes—is one of several debates surrounding app-based companies like Grubhub, Uber Technologies Inc., and Lyft Inc.

Source: GrubHub Ruling Draws New Line in Battles Over Driver Arbitration

Donate to Feeding America

Feeding America

COVID-19 Response Fund

As the COVID-19 pandemic continues, we are committed to serving communities and individuals facing hunger across America, wherever they are. Every dollar raised from the COVID-19 response fund will be used to get food and funds to local food banks across the U.S.

You can help make sure we can be there for our neighbors in need during this time of uncertainty.

Feeding America



To Holcomb Dunbar’s Clients, Colleagues and Friends:

Along with critical staff, Holcomb Dunbar is “open” and ready to answer your questions and address your legal needs during the COVID-19 outbreak.  To meet Federal and State recommendations and local orders, Holcomb Dunbar attorneys and staff are working remotely with a small rotating group present at our office to address time sensitive client needs.

We are committed to being accessible and responsive to your needs.  Please contact me via email.  I also encourage you to visit Holcomb Dunbar’s webpage for additional updates as we navigate these changing times.

The Mississippi and Tennessee courts and clerk offices are open and are accepting filings for now. As a result, court deadlines remain in place.  While some courts are having in person hearings, others are canceling hearings or addressing them by telephone or video.  Regardless, I am monitoring and remain committed to protecting your interests.

I hope that you, your colleagues, friends, and family are safe and healthy.  Should you have questions, please reach out at any time.

Thank you for your continued trust and for our partnership.  And I know we are all looking forward to a quick end to this crisis.

Jonathan Masters


A Moment of Perspective in the Chaos

Seventy-two years ago, C. S. Lewis wrote to address public concern over nuclear war.  His words provide a bit of perspective as we navigate today’s news about the coronavirus.

In one way we think a great deal too much of the atomic bomb. “How are we to live in an atomic age?” I am tempted to reply: “Why, as you would have lived in the sixteenth century when the plague visited London almost every year, or as you would have lived in a Viking age when raiders from Scandinavia might land and cut your throat any night; or indeed, as you are already living in an age of cancer, an age of syphilis, an age of paralysis, an age of air raids, an age of railway accidents, an age of motor accidents.”

In other words, do not let us begin by exaggerating the novelty of our situation. Believe me, dear sir or madam, you and all whom you love were already sentenced to death before the atomic bomb was invented: and quite a high percentage of us were going to die in unpleasant ways. We had, indeed, one very great advantage over our ancestors—anesthetics; but we have that still. It is perfectly ridiculous to go about whimpering and drawing long faces because the scientists have added one more chance of painful and premature death to a world which already bristled with such chances and in which death itself was not a chance at all, but a certainty.

This is the first point to be made: and the first action to be taken is to pull ourselves together. If we are all going to be destroyed by an atomic bomb, let that bomb when it comes find us doing sensible and human things—praying, working, teaching, reading, listening to music, bathing the children, playing tennis, chatting to our friends over a pint and a game of darts—not huddled together like frightened sheep and thinking about bombs. They may break our bodies (a microbe can do that) but they need not dominate our minds.

— “On Living in an Atomic Age” (1948) in Present Concerns: Journalistic Essays



Masters to Serve as MDLA President

Holcomb Dunbar attorney Jonathan Masters accepts the gavel as Mississippi Defense Lawyer Association’s 2020 President. “I am excited for the opportunity to serve this outstanding organization and continue in the footsteps of a distinguished line of MDLA leaders.”

Jonathan is AV rated and concentrates his practice on civil litigation in Mississippi and Tennessee.  His practice includes civil litigation in all manner of disputes including, commercial litigation, Insurance subrogation and automobile accidents, premises liability, slip and falls, and insurance coverage disputes..

Jonathan received his Juris Doctor from Mississippi College School of Law, cum laude, in 1998. While in law school, he was a member Phi Alpha Delta and recipient of the Wright Family Law Award. Jonathan Masters received his Bachelor of Arts from the University of South Alabama with emphasis in Public Relations and Political Science.

Mississippi Defense Lawyers Association is a statewide association of attorneys who practice primarily in the defense of civil litigation. Founded in 1965, MDLA has grown to an active membership of over 600 attorneys.
The purpose of this association is:

  • To bring together lawyers of Mississippi who devote a substantial amount of their professional time to the handling of litigated cases primarily for the defense.
  • To exchange information, ideas and techniques of procedure and court rulings relating to the handling of litigation to enhance the knowledge and improve the skills of defense lawyers.
  • To promote improvements in the administration of justice and to increase the quality of service which the legal profession renders to the community, state and nation.

Equitable Subrogation

SubrogationLast week the Mississippi Supreme Court reviewed a certified question from the Fifth Circuit Court of Appeals addressing an insurance carrier’s right to seek equitable subrogation and indemnity following a purported “voluntary” settlement.

The First Circuit submitted the following questions:
1) Does an insurer act under “compulsion” if it takes the legal position that an entity purporting to be its insured is not covered by its policy, but nonetheless pays a settlement demand in good faith to avoid potentially greater liability that could arise from a future coverage determination?
2) Does an insurer satisfy the “legal duty” standard if it makes a settlement payment on behalf of a purported insured whose defense it has assumed in good faith, but whose coverage under the policy has not been definitively resolved, even if the insurer maintains that the purported insured is not actually insured under the policy?
Colony Ins. Co. v. First Specialty Ins. Corp., 726 F. App’x 992, 995-96 (5th Cir. 2018).

The underlying subrogation suit arose following a settlement conference where one of the potential liability carriers, Colony, tendered policy limits in exchange for a full release. Colony then sought subrogation reimbursement from First Specialty. Specialty asserted that Colony’s payment was voluntary and refused to reimburse Colony.

The Mississippi Supreme Court took the opportunity to further review elements of a “voluntary payment” that may preclude recovery in a subsequent subrogation action.

Addressing only the first certified question the Court rejected Colony’s claim that it paid the settlement under compulsion because Colony asserted throughout the claim that its coverage was not triggered but defended under a reservation of rights. As such, the Court reasoned that Colony’s payment was not voluntary because it was acting to protect its own interests, not an insured.

The Court concluded, “[w]e find that an insurer does not act under compulsion if it takes the legal position that an entity purporting to be its insured is not covered by its policy but nonetheless pays a settlement demand in good faith to avoid potentially greater liability that could arise from a future coverage determination. Because the first certified question is dispositive, we decline to address the second certified question.”

Here’s the full unpublished opinion:

2019 WL 396894
Only the Westlaw citation is currently available.
Supreme Court of Mississippi.
NO. 2018-FC-00574-SCT


*1 ¶1. Under the provisions of Rule 20 of the Mississippi Rules of Appellate Procedure, the United States Court of Appeals for the Fifth Circuit has certified questions to this Court.1 An incident at Omega Protein Corporation’s (Omega) facility resulted in the death of an employee of Accu-Fab & Construction, Inc. (Accu-Fab). Although Colony Insurance Company (Colony) continually maintained that it did not insure Omega, Colony negotiated and paid a settlement claim under a reservation of rights on Omega’s behalf. Because Colony took the position that it had no duty to defend Omega at all, the district court concluded that Mississippi’s voluntary-payment doctrine precluded Colony’s claims for equitable subrogation and implied indemnity.

¶2. Pursuant to this Court’s precedent, an insurer is barred from seeking indemnity for a voluntary payment. Keys v. Rehab. Ctrs., Inc., 574 So.2d 579, 584 (Miss. 1990); see McDaniel Bros. Const. Co. v. Burk-Hallman Co., 253 Miss. 417, 175 So.2d 603, 605 (1965) (“[A] voluntary payment can not be recovered back….”). In order to recover, the indemnitee must prove that it both paid under compulsion and that it was legally liable to the person injured. Id. The Fifth Circuit certified the following questions to this Court:
1) Does an insurer act under “compulsion” if it takes the legal position that an entity purporting to be its insured is not covered by its policy, but nonetheless pays a settlement demand in good faith to avoid potentially greater liability that could arise from a future coverage determination?
2) Does an insurer satisfy the “legal duty” standard if it makes a settlement payment on behalf of a purported insured whose defense it has assumed in good faith, but whose coverage under the policy has not been definitively resolved, even if the insurer maintains that the purported insured is not actually insured under the policy?
Colony Ins. Co. v. First Specialty Ins. Corp., 726 F. App’x 992, 995-96 (5th Cir. 2018)

¶3. On July 28, 2014, an explosion at Omega’s facility in Moss Point, Mississippi, killed an employee of Accu-Fab, Jerry Lee Taylor II. At the time of the incident, Omega was the named policyholder of two third-party insurance policies. ACE American Insurance Company (AAIC) provided a $1,000,000 primary commercial general liability policy to Omega, subject to a $250,000 deductible. First Specialty Insurance Corporation also provided a $10,000,000 excess liability policy, which provided limits in excess of the underlying AAIC policy. In addition, Accu-Fab was the named policyholder of a third-party insurance policy issued by Colony. Colony issued to Accu-Fab a primary liability policy with a $1,000,000 liability limit. The Colony Policy contained an “Additional Insured” provision, which designated “[a]ll persons or organizations as required by written contract with the Named Insured” as being insureds under the Colony Policy as well, subject to certain limitations and exclusions.

*2 ¶4. The Fifth Circuit summarized the subsequent events as follows:
On March 4, 2015, Omega informed Colony that it expected to receive “claims for personal injury and/or wrongful death” arising out of the July 2014 explosion. Asserting that it qualified as an “additional insured” under the Colony Policy, Omega demanded that Accu-Fab and Colony “defend and fully indemnify [it] from any [such] claims.”
On March 13, 2015, Colony notified Omega that it was conducting an investigation into the explosion “under a full and complete reservation of rights … including the right to disclaim coverage in whole or in part should it consider such denial warranted.” Colony contended that the Colony Policy’s “Total Pollution Exclusion may apply to preclude coverage in this matter” and expressed doubt that Omega qualified as an “additional insured.”
On April 17, 2015, Colony filed a complaint for declaratory judgment in the Circuit Court of Jackson County, Mississippi. The complaint, which named Accu-Fab and Omega as defendants, sought a court order “declaring that the [Colony Policy] does not provide any coverage for any and all damages or injuries sustained as a result of the [July 2014] explosion.”
On September 2, 2015, Taylor’s estate and survivors filed a wrongful death action against Omega in federal district court.2 Colony subsequently agreed to fund Omega’s defense, subject to a “full and complete” reservation of rights, “including the right to seek recovery of all defense costs it incurs on behalf of Omega should a court determine that Colony does not in fact owe a defense to [Omega].” In a letter dated December 9, 2015, Colony informed Omega’s attorney that:
Colony’s position is that it does not believe the policy of insurance it issued to Accu-Fab provides any coverage whatsoever for the unfortunate incident which occurred at the Omega Protein facility on July 28, 2014. Nevertheless, at your request Colony has agreed to fund the defense of Omega Protein, and is pursuing a declaratory judgment action in order to have the court determine whether its coverage position is or is not correct. Colony is providing a good-faith defense to Omega through the services of your law firm and yourself. If the court ultimately determines that the policy issued by Colony to Accu-Fab does not require that it fund Omega’s defense, Omega will have been unjustly enriched to the extent Colony paid its defense costs when it had no obligation to do so.
Colony also wrote that, “[w]ith regard to Taylor’s settlement demand, Colony will of course consider any reasonable demand sent to it,” but “any demands for settlement made on behalf of the estate and survivors of Mr. Taylor will be reviewed in light of the insurance coverage issue which is currently the subject of Colony’s declaratory judgment action.”
Colony Ins. Co., 726 F. App’x at 992-93.

¶5. The court scheduled a settlement conference in the Taylor lawsuit for January 14, 2016. Two days before the settlement conference, First Specialty wrote to Colony and requested that Colony settle the lawsuit. The letter stated in relevant part,
*3 The Colony Additional Insured endorsement amends its Other Insurance clause, stating that the Colony coverage “is primary insurance and [Colony] will not seek contribution from any other insurance available to [Colony] additional insured.” Colony, therefore, is primary to [AAIC]. The Taylor claim will certainly not settle for $1 million. As noted, failure to take advantage of the opportunity on January 14 to settle the Taylor claim for $2 million or less may not come again and may result in substantial unnecessary losses for Omega and its excess insurers, potentially including [First Specialty]. Accordingly, [First Specialty] respectfully requests Colony to be prepared to tender its limits to settle the Taylor claim during the January 14 settlement conference….
At the settlement conference, Colony excluded First Specialty’s representative from the conference and agreed to pay its $1,000,000 policy limit in exchange for Omega’s “full and complete release” from the lawsuit. Colony subsequently dismissed its declaratory-judgment action against Omega.

¶6. Colony then demanded that First Specialty reimburse the full amount Colony contributed to the Taylor settlement. When First Specialty refused, Colony filed an action against it seeking reimbursement of the amount it had contributed to the settlement of Taylor’s wrongful-death lawsuit against Omega. Colony asserted claims of equitable subrogation and implied indemnity.

¶7. In response, First Specialty filed a Motion for Summary Judgment, and Colony filed a Cross Motion for Summary Judgment. The district court found that Mississippi’s voluntary payment doctrine precluded Colony from recovery for payments made on behalf of a defendant that it did not insure and granted First Specialty’s motion. The district court then entered a final judgment dismissing Colony’s suit with prejudice. Colony appealed to the Fifth Circuit. The Fifth Circuit then certified the above-stated questions to this Court.

¶8. Mississippi law provides that a voluntary payment cannot be recovered back. McLean v. Love, 172 Miss. 168, 157 So. 361, 362 (1934). A voluntary payment is one which is made “[w]ithout compulsion or fraud, and without any mistake of fact, of a demand which the payor does not owe, and which is not enforceable against him….” Id. A “voluntary payor” is a “stranger or intermeddler who has no interest to protect and is under no legal or moral obligation to pay.” Indem. Ins. Co. of N. Am. v. Guidant Mut. Ins. Co., 99 So.3d 142, 150 (Miss. 2012)(“Guidant II ”).

¶9. A payment may not be considered voluntary unless the payor had “full knowledge of all the facts which would render the payment voluntary.” Glantz Contracting Co. v. Gen. Elec. Co., 379 So.2d 912, 917 (Miss. 1980). To determine whether payments are made on a voluntary basis, this Court looks at the facts of each particular case. Id. at 917-18.

I. Compulsion
¶10. In Mississippi, “[t]o recover indemnity it is necessary for the plaintiff to allege and prove that he was legally liable to the person injured, and consequently, paid under compulsion. Otherwise, the payment is a voluntary one for which there can be no recovery.” Sw. Miss. Elec. Power Ass’n v. Harragill, 254 Miss. 460, 182 So.2d 220, 223 (1966). The first question certified to this Court asks whether an insurer acts under “compulsion” if it takes the legal position that an entity purporting to be its insured is not covered by its policy, but nonetheless pays a settlement demand in good faith to avoid potentially greater liability that could arise from a future coverage determination.

¶11. Colony argues that, because it had an interest to protect when it made the settlement payment, it paid under compulsion no matter the extent or quantity of its interest. In contrast, First Specialty contends that “compulsion” requires more than a potential lawsuit against the payor or the payor’s perception of potential liability if it does not make the subject payment. It argues that compulsion requires “urgent and immediate circumstances” in which the failure to pay risks severe consequences to the payor or threatens the payor’s financial viability.

*4 ¶12. We answer the first certified question in the negative. As First Specialty argued, Colony maintained from the beginning that it did not insure Omega. Colony argued that its policy did not cover Omega for two reasons. First, Colony argued that a provision in its policy excluded the injuries suffered by Taylor from coverage. Colony’s policy included a “Total Pollution Exclusion” which stated,
This insurance does not apply to:
f. Pollution
(1) ‘Bodily injury’ or ‘property damage’ which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’ at any time …
Its policy defined “pollutants” as “any solid, liquid, gaseous or thermal irritant or contaminant[.]” Colony argued that it was not obligated to defend Omega because Taylor’s death was caused by “the ignition of several combustible gases” contained within a tank that had an approximately twenty thousand pound lid. Colony argued that for the lid to have blown off the tank, seepage or release of the contained gasses, which constituted pollutants had to have occurred.

¶13. Second, Colony argued that Omega was not considered an “additional insured” under its policy. Pursuant to the policy, an “additional insured” was defined as
the person(s) or organization(s) shown in the Schedule, but only with respect to liability for ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ caused, in whole or in part, by:
1. Your acts or omissions; or
2. The acts or omissions of those acting on your behalf in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above.
Accordingly, Colony contended that a person or entity may only be an additional insured for bodily injury caused in whole or in part by Accu-Fab’s acts or omissions or by acts or omissions of someone acting on behalf of Accu-Fab. Colony argued that because the policy specifically stated “liability … caused, in whole or in part, by,” it required that the underlying complaint allege that the named insured (Accu-Fab) or someone acting on behalf of Accu-Fab was negligent and proximately caused the injury. Because Taylor did not include Accu-Fab as a party or allege any negligence or fault on its part, Colony argued that Omega was not an additional insured. Therefore, when Colony negotiated the settlement payment, Colony did not merely dispute that its policy excluded coverage for the injuries Taylor suffered, but it maintained that it did not insure Omega at all. Colony’s fear that Omega might be an additional insured under its policy does not amount to compulsion.

¶14. Black’s Law Dictionary provides two definitions of the word “compel”: 1) “to cause or bring about by force, threats, or overwhelming pressure” or 2) “to convince (a court) that there is only one possible resolution of a legal dispute.” Compel, Black’s Law Dictionary (10th ed. 2014). Previously, this Court has found that a threat to sue is not considered compulsion. McLean, 157 So. at 362. In McLean, a milling company was indebted to a bank in the total amount of $79,540.40. Ten stockholders guaranteed the notes and secured the notes with collateral. Id. at 361. When the milling company was thrown into bankruptcy, the bank demanded that the ten guarantors pay the entire balance without applying the collateral to the reduction of the stated balance. Id. The ten stockholders paid the full balance. When the collateral was sold, the stockholders sought to be reimbursed. Id. at 362. This Court found that payment of the full balance had been voluntary, holding that “the only compulsion suggested was a threat to sue, which is not compulsion.” Id. The Court reasoned,
*5 It is axiomatic in equity jurisprudence that a court of equity makes no exertion to extend relief to those who, being able to take care of their interests, have neglected to do so, and thereupon find themselves in predicaments which ordinary care would have avoided. And for the stronger reason, where an unjust demand has been made upon a party, a demand for a debt which he does not owe, or for more than he owes, he must, when he knows or ought to know the facts, avail of the means which the law affords him to resist the demand, and if he do not, and make the payment demanded, he has not taken due care.

¶15. Even the possibility of foreclosure on a deed of trust for land has been found to lack compulsion for purposes of the voluntary-payment doctrine. Rowe v. Union Cent. Life Ins. Co., 194 Miss. 328, 12 So.2d 431, 434 (1943). In Rowe, the appellant sought recovery for a portion of the purchase price paid for farm land. Id. at 432. After executing a special warranty deed for more than one thousand acres of farm land, the appellant discovered that the appellee did not own all of the land specifically described in the deed of conveyance. Id. The appellee declined to adjust the purchase price, and the appellant continued to pay the monthly sum agreed upon in the deed of conveyance, eventually paying off the full purchase price. Id. at 433. The appellant wrote that the payments were “being paid under protest and without waiving any rights that the grantee may have to recover the same….” This Court found that
The mere fact, however, that she may have been compelled to resort to equity to obtain a surrender of the notes and a cancellation of the lien of the deed of trust securing the same, upon a tender of the correct amount admitted to be due, does not render her payment of the full amount an involuntary payment, and this is especially true where it was made at a time when payment of the full balance was not being demanded under penalty of immediate foreclosure, and at a time when no coercion, duress or compulsion was being employed to exact such payment, and where no fraud or concealment was being practiced by the payee in connection with the receipt, acceptance, and collection of any part of the sum so paid.
Id. at 434–35.

¶16. We decline to adopt Colony’s argument that a payment is not voluntary if the payor is acting under compulsion to protect its own interests. The above cases each contain payments that the payors made to protect their own interests; and yet were not considered to be made under compulsion. Additionally, Colony was not under an immediate and urgent necessity to pay the settlement demand. The explosion occurred on July 28, 2014. On April 17, 2015, Colony filed its declaratory judgment action, seeking a court order “declaring that the [Colony Policy] does not provide any coverage for any and all damages or injuries sustained as a result of the [July 2014] explosion.” Taylor’s estate did not file its wrongful-death action until September 2, 2015. Colony then settled the action on January 14, 2016. Thus, at the time Colony negotiated the settlement, the Taylor action had been filed only for approximately four months, and Colony’s declaratory-judgment action against Omega remained pending. In civil cases, the purpose of courts is to “extend aid to those who have not been able by lawful means to aid themselves, and relief is not available to those who have neglected to take care of their interests.” Harragill, 182 So.2d at 223. Here, Colony had the option to pursue its declaratory-judgment action before it paid the Taylor settlement. Instead, approximately four months after the Taylor actions was filed, Colony negotiated and agreed to pay the settlement. Thus, pursuant to this Court’s precedent, the Colony settlement lacked compulsion.

*6 ¶17. Colony argues that it made “an uncommon decision in our modern litigious society” to protect and defend Omega under a reservation of rights, quoting the Court of Appeals in Gray Properties, LLC v. Utility Constructors, Inc., 168 So.3d 1164 (Miss. Ct. App. 2014). In Gray Properties, however, the issue of compulsion was not discussed. And although Colony argues that it was under a “solemn obligation to defend its insured,” as discussed above, Colony continually maintained that Omega was not its insured. “An insurance company’s duty to defend its insured is triggered when it becomes aware that a complaint has been filed which contains reasonable, plausible allegations of conduct covered by the policy. However, no duty to defend arises when the claims fall outside the policy’s coverage.” Minn. Life Ins. Co. v. Columbia Cas. Co., 164 So.3d 954, 970 (Miss. 2014) (emphasis added) (quoting Baker Donelson Bearman & Caldwell, P.C. v. Muirhead, 920 So.2d 440, 450-51 (Miss. 2006) ).

¶18. The critical distinction in this case is that if Colony continually maintained that it was not Omega’s insured, Colony did not act out of compulsion when it negotiated the settlement. Because Colony failed to pursue its legal remedies, we answer the first certified question in the negative.

II. Legally Liable
¶19. Because the first question is dispositive for purposes of the voluntary-payment doctrine, we find it unnecessary to answer the second certified question.

¶20. We find that an insurer does not act under compulsion if it takes the legal position that an entity purporting to be its insured is not covered by its policy but nonetheless pays a settlement demand in good faith to avoid potentially greater liability that could arise from a future coverage determination. Because the first certified question is dispositive, we decline to address the second certified question.


All Citations
— So.3d —-, 2019 WL 396894


Mississippi Rule of Appellate Procedure 20 provides,
[W]hen it shall appear to the Supreme Court of the United States or to any United States Court of Appeals that there may be involved in any proceeding before it questions or propositions of law of this state which are determinative of all or part of that cause and there are no clear controlling precedents in the decisions of the Mississippi Supreme Court, the federal court may certify such questions or propositions of law of this state to the Mississippi Supreme Court for rendition of a written opinion concerning such questions or propositions of Mississippi law. The Supreme Court may, in its discretion, decline to answer the questions certified to it.
M.R.A.P. 20(a).

Taylor’s estate did not name Accu-Fab as a p