Tarinika Smith v. Church Mutual Insurance Company

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2016-IA-01060-SCT

TARINIKA SMITH, INDIVIDUALLY AND ON
BEHALF OF KAYDEN JOHNSON, DECEASED,
SHELENA AUSTIN PREWITT, NATURAL
MOTHER AND NEXT FRIEND OF XAVIER
AUSTIN, A MINOR, JAKILA MARTIN, A MINOR,
MARLO WATKINS, A MINOR, AND HELEN
YANCY, A MINOR, LINDA CUNNINGHAM,
GENERAL GUARDIAN AND NEXT FRIEND OF
TREVIN MAYS, A MINOR, AND JERKISHA
MAYS, A MINOR, CHRISTINE MAGEE,
NATURAL MOTHER AND NEXT FRIEND OF
MONSHANNA WESTON, BRENDA WOODARD,
NATURAL MOTHER AND NEXT FRIEND OF
BRENAE WOODARD, A MINOR, ANGELA
CRAFT, NATURAL MOTHER AND NEXT
FRIEND OF DEARYELL CRAFT, A MINOR,
KAYTANA DILLARD, NATURAL MOTHER AND
NEXT FRIEND OF RONISHA DILLARD, A
MINOR, JERMAINE DILLARD, A MINOR, AND
QUASHOUNTA DILLARD, A MINOR

v.

CHURCH MUTUAL INSURANCE COMPANY
AND ADLAI JOHNSON

DATE OF JUDGMENT: 10/24/2016
TRIAL JUDGE: HON. JOHN KELLY LUTHER
TRIAL COURT ATTORNEYS: DRAYTON D. BERKLEY
HARDIN CHASE PITTMAN
MARGARET ZIMMERMAN SMITH
PAUL NORMAN DAVIS
D. REID WAMBLE
MATTHEW RYAN MACAW
COURT FROM WHICH APPEALED: MARSHALL COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: DRAYTON D. BERKLEY
ATTORNEYS FOR APPELLEES: MARGARET ZIMMERMAN SMITH
PAUL NORMAN DAVIS
HARDIN CHASE PITTMAN
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED IN PART; REVERSED IN PART
AND REMANDED - 08/02/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1. The Marshall County Circuit Court entered an order dismissing Adlai Johnson from

the suit for Plaintiffs’ failure to timely serve him.1 Church Mutual Insurance Company

(“Church Mutual”) then moved to have the trial court declare that Tennessee substantive law

controlled the case. After the trial court so declared, Church Mutual moved for summary

judgment based on Tennessee law prohibiting direct actions against insurers for uninsured

motorist (“UM”) claims. The trial court then entered summary judgment in favor of Church

Mutual. Plaintiffs seek interlocutory review of all three rulings. We find no error in the

dismissal of Johnson for Plaintiffs’ failure to serve. We further find no error with the trial

court applying Tennessee law to determine whether the contract provided UM coverage to

Plaintiffs. However, we find that the trial court erred in applying Tennessee substantive law.

We reverse those judgments of the Marshall County Circuit Court and remand for

proceedings consistent with this opinion.

1
Johnson filed a separate suit against Smith and Mt. Vernon, which drew a
counterclaim. That suit also was filed in Marshall County and later was consolidated with
this suit. Neither party has made that suit part of this appeal.

2
 STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. On April 28, 2013, Tarinika Smith and twelve minor children (collectively Plaintiffs)

were involved in an automobile accident with a vehicle driven by Adlai Johnson.2 Smith was

operating a passenger van owned by Mount Vernon Missionary Baptist Church (Mt. Vernon),

located in Rossville, Tennessee, which was transporting the children. The accident occurred

in Marshall County, Mississippi. At the time of the collision, Smith was pregnant. Plaintiffs

and Johnson all are Tennessee residents.

¶3. However, Church Mutual’s principal place of business is in Wisconsin. Church

Mutual issued a Commercial Automobile Policy to Mount Vernon, insuring a fifteen-

passenger church van and a twelve-passenger church van. The agent for the policy was

located in Brentwood, Tennessee. Although the full policy was not provided by either party,

portions of the commercial auto policy, including the Business Automobile Declarations and

the Tennessee Uninsured Motorists Coverage Endorsement, were included. The policy limits

were $1,000,000 in liability, $5,000 in medical payments, $1,000,000 in

uninsured/underinsured motorist coverage, and actual cash value or cost of repair, whichever

is less, for both comprehensive and collision damage. Although the Tennessee Uninsured

Motorists Coverage Endorsement was provided, the named insured, effective date,

authorized representative, and schedule of bodily injury portions were left blank.

¶4. The Tennessee Uninsured Motorists Coverage Endorsement reads in pertinent part:

A. Coverage

2
Johnson was insured by USAA, so claims advanced are underinsured motorist
(UIM) claims.

3
 1. We will pay all sums the “insured” is legally entitled to recover
as compensatory damages from the owner or driver of an
“uninsured motor vehicle.” The damages must result from
“bodily injury” sustained by the “insured” or “property damage”
caused by an “accident.” The owner’s or driver’s liability for
these damages must result from the ownership, maintenance, or
use of the “uninsured motor vehicle.”
2. With respect to damages resulting from an “accident” with a
vehicle described in Paragraph (2) of the definition of
“uninsured motor vehicle,” we will pay under this coverage only
if a. or b. below applies:
a. The limit of any applicable liability bonds or policies
have been exhausted by payments of judgments or
settlements; or
b. A tentative settlement has been made between the
“insured” and the insurer of an owner or operator of a
vehicle described in Paragraph (2) of the definition of
“uninsured motor vehicle” and we have been given
written notice of such tentative settlement as described in
Paragraph E.4.b.

That portion of the policy further declares that an “insured” is “anyone ‘occupying’ a covered

‘auto. . . .’” None of the exclusions listed therein applies.

¶5. On June 15, 2015, Plaintiffs filed suit against Johnson and Church Mutual, alleging

Johnson caused the accident. Plaintiffs sought damages for various injuries. Plaintiff Smith

additionally sought recovery for the wrongful death of her “unborn quick child.” On June 16,

2015, Plaintiffs sent to Johnson, via U.S. certified mail, an envelope with the circuit court’s

process for service on him. It was not until August 11, 2015, however, that Plaintiffs’ counsel

received notice from the U.S. Postal Service that the envelope had been returned undelivered

and marked “unclaimed.” As a result, Plaintiffs again attempted service on Johnson in

September 2015, but learned in February 2016 that service had failed a second time. And so,

on March 14, 2016, Plaintiffs, via a process server, tried to serve Johnson a third time.

4
Plaintiffs’ third attempt ultimately was successful, with Johnson being served on March 28,

2016 – 287 days after the filing of Plaintiffs’ complaint.

¶6. In response to Plaintiffs’ suit, Johnson moved to be dismissed on April 29, 2016,

citing Plaintiffs’ failure to timely serve him within the 120-day period prescribed by Rule

4(h) of the Mississippi Rules of Civil Procedure. Plaintiffs opposed Johnson’s motion and

argued for an extension of time to serve him properly. Plaintiffs offered a variety of reasons

why Johnson was served beyond Rule 4(h)’s 120-day period – specifically, Plaintiffs

allocated fault to both their chosen process server and Johnson. Plaintiffs, however, conceded

that they were not made aware service had failed through their server until February 2016,

which prompted their March 14, 2016, attempt. Following argument on Johnson’s motion,

the circuit court granted the motion under Rule 4(h) and dismissed Johnson without

prejudice.

¶7. In June 2016, Church Mutual moved to declare Tennessee substantive law controlled

this action. Church Mutual argued that, aside from the location of the accident, Mississippi

had no contacts with the parties or subject matter of the action. Therefore, choice-of-law

principles required Tennessee law to be applied to the action.3

3
This motion was inconsistent with Church Mutual’s Answer, in which it sought
numerous protections provided by Mississippi law as part of its Affirmative Defenses,
including Mississippi Code Sections 85-5-7, 11-7-15, 11-1-69, 11-1-60, and 11-1-65.

5
¶8. The circuit court granted Church Mutual’s motion and held that Tennessee substantive

law would govern all parties’ claims and defenses, save for Mississippi’s “[R]ules of the

[R]oad.”4 The circuit court specifically held:

This case arises from an automobile accident that occurred in Marshall
County, Mississippi on April 28, 2013. The location of the accident was on
Highway 72, just south of the Tennessee border. All parties to this action are
domiciled or reside in Tennessee, with the exception of Church Mutual
Insurance Company, whose principal place of business is in Wisconsin.
Church Mutual insured the van driven by Plaintiff Smith. The insurance policy
was negotiated in Tennessee and was to be substantially performed in
Tennessee.

This Court finds Tennessee law controls plaintiffs’ contractual claims
against Church Mutual. The place of contracting as well as the place of
negotiating the contract was in Tennessee. The insured automobile was
principally garaged in Tennessee. This Court finds the place of performance
of the contract was substantially in Tennessee. Therefore, under the
Restatement (Second) of Conflict of Laws sections 188 and 193, this Court
finds Tennessee law controlling.

This Court finds Tennessee law controlling as to plaintiffs’ claims of
negligence. Tennessee is the common domicile of the plaintiffs and Defendant
Johnson. No party to this action is domiciled or resides in Mississippi. Based
on the facts presented to the Court, this Court finds Tennessee has the most
substantial relationship with the parties involved. While the Court recognizes
the place of injury is Mississippi, this Court finds that fact alone is not
determinative as to which state’s law governs this dispute. See Mitchell v.
Craft, 211 So. 2d 509 (Miss. 1968); Restatement (Second) of Conflict of Laws
§ 6. This Court finds Tennessee laws controlling as to tort claims and
recovery, and those Tennessee laws are not repugnant to the laws and policies
of Mississippi. Regarding any issues involving Mississippi’s [R]ules of the
[R]oad, this Court finds Mississippi law is controlling. See Fells v. Bowman,
274 So. 2d 109 (Miss. 1979).

4
Whether Mississippi’s Rules of the Road apply is a nonissue, as no party contests
the circuit court’s ruling in that respect.

6
 In conclusion, the Court finds Tennessee law to be the proper choice of
law as to plaintiffs’ claims of negligence and as to any contractual claims
against Church Mutual.

(Emphasis added.)

¶9. Following the trial court’s finding that Tennessee law would apply to Plaintiffs’ suit

and because Johnson previously had been dismissed from the underlying suit, Church Mutual

moved for summary judgment, arguing that Tennessee law did not allow Plaintiffs to bring

a direct action against a UM carrier, absent specific circumstances. The circuit court agreed,

and on October 24, 2016, dismissed all Plaintiffs’ claims against Church Mutual without

prejudice.

¶10. Plaintiffs sought interlocutory relief from this Court. Specifically, Plaintiffs appealed

the circuit court’s orders dismissing Johnson from the suit and finding Tennessee substantive

law controlling, before granting summary judgment to Church Mutual. This Court granted

Plaintiffs interlocutory review and stayed all further proceedings of the circuit court.

STANDARD OF REVIEW

¶11. “The standard of review for a trial court’s grant or denial of a motion to dismiss is de

novo.” Long v. Vitkauskas, 228 So. 3d 302, 304 (Miss. 2017). As to issues of service of

process, this Court reviews the trial court’s findings of fact for an abuse of discretion. Id. at

304. And for questions of law, such as which state’s law applies to issues before this Court,

our standard of review is de novo. McAdams v. Perkins, 204 So. 3d 1257, 1261 (Miss.

2016).

7
 ANALYSIS

I. Dismissal of Adlai Johnson

¶12. Rule 4(h) of the Mississippi Rules of Civil Procedure reads:

If a service of the summons and complaint is not made upon a defendant
within 120 days after the filing of the complaint and the party on whose behalf
such service was required cannot show good cause why such service was not
made within that period, the action shall be dismissed as to that defendant
without prejudice upon the court’s own initiative with notice to such party or
upon motion.

M.R.C.P. 4(h).

Mississippi Rule of Civil Procedure 4(h) mandates that a complaint be
dismissed if service of process is not effected within 120 days of the filing of
the complaint and good cause cannot be shown for failure to do so. The rule
has been interpreted to provide that “a plaintiff must serve a defendant with
process within 120 days or show good cause why service was not made.”
Watters v. Stripling, 675 So. 2d 1242, 1243 (Miss. 1996) (emphasis added).
The rule has also been interpreted to require that, if the defendant is not served
within 120 days, the plaintiff must either refile the complaint before the statute
of limitations ends or show good cause; otherwise, dismissal is proper. Id. at
1244. “To establish ‘good cause’ the plaintiff must demonstrate ‘at least as
much as would be required to show excusable neglect, as to which simple
inadvertence or mistake of counsel or ignorance of the rules usually does not
suffice.’” Peters v. United States, 9 F.3d 344, 345 (5th Cir. 1993) (quoting
Systems Signs Supplies v. U.S. Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir.
1990) (cited favorably in Bang v. Pittman, 749 So. 2d 47, 51 (Miss. 1999),
and Watters, 675 So. 2d at 1243)).

Webster v. Webster, 834 So. 2d 26, 27-28 (Miss. 2002).

¶13. The record reflects that Plaintiffs filed their complaint on June 15, 2015. Under the

rule, the 120-day period to effectuate service on Johnson expired on October 13, 2015.

Because service was not made upon Johnson by October 13, 2015, Plaintiffs failed to satisfy

8
the first prong of the Rule 4(h) inquiry. As a result, Plaintiffs’ only recourse under Rule 4(h)

was to establish “good cause.” See M.R.C.P. 4(h).

¶14. This Court has held that “good cause is likely (but not always) to be found when the

plaintiff’s failure to complete service in timely fashion is a result of the conduct of a third

person, typically the process server.” Holmes v. Coast Transit Auth., 815 So. 2d 1183, 1186

(Miss. 2002) (citations omitted). A plaintiff also may show “good cause” if “the defendant

has evaded service of process or engaged in misleading conduct, the plaintiff has acted

diligently in trying to effect service or there are understandable mitigating circumstances. .

. .” Id.

¶15. In an attempt to establish good cause, Plaintiffs argue that Johnson willfully evaded

service. But Plaintiffs provide no evidence proving his alleged evasion, and the record is

devoid of the same. Moreover, Plaintiffs were not diligent in serving Johnson, for Plaintiffs

concede that they took no action as to the status of their service of process between the first

week of October 2015 and February 2016–approximately four months. This four-month

period extended beyond the original 120-day period. Due to Plaintiffs’ lack of diligence, lack

of proof of Johnson’s willful evasion, and lack of any other mitigating circumstances

warranting relief, we conclude that they failed to establish “good cause.”

¶16. Additionally, Plaintiffs did not file their motion for extension of time until May 20,

2016–some 220 days after the expiration of their 120-day period, and 340 days after the filing

of their complaint. Plaintiffs’ motion for an enlargement of time to serve Johnson was made

only after Johnson had filed his motion to dismiss Plaintiffs’ claims against him on April 29,

9
2016. The circuit court analyzed Plaintiffs’ claims under Rule 6(b) and denied their motion

for an extension. Pursuant to Rule 6(b):

When by these rules or by notice given thereunder or by order of court an act
is required or allowed to be done at or within a specified time, the court for
cause shown may at any time in its discretion . . . upon motion made after the
expiration of the specified period permit the act to be done where failure to act
was the result of excusable neglect. . . .

M.R.C.P. 6(b). “This Court has held that the standards for deciding whether a plaintiff has

demonstrated ‘good cause’ under Rule 4(h) and ‘excusable neglect’ under Rule 6(b)(2) are

virtually identical.” Collins v. Westbrook, 184 So. 3d 922, 932 (Miss. 2016) (citing Watters,

675 So. 2d at 1244). Finding no good cause, we likewise find no excusable neglect. We find

no error as to this ruling and affirm the dismissal of Johnson without prejudice.

II. Choice of Law

¶17. The following principles are to be considered in our choice-of-law analysis:

First, the law of a single state does not necessarily control every issue in a
given case. We apply the center of gravity test to each question presented,
recognizing that the answer produced in some instances may be that the law
of this state applies and on other questions in the same case the substantive law
of another state may be enforceable. We note that Fells v. Bowman, 274 So.
2d 109 (Miss. 1973) has recognized that this Court is not necessarily required
“to apply the law of a single state to every facet of the case.” 274 So. 2d at
112. See also Vick v. Cochran, 316 So. 2d 242, 246 (Miss. 1975).

Second, we recognize that there will be cases where, applying the center of
gravity doctrine, we might conclude in the first instances that the law of
another state should be applied. Where that law is contrary to the deeply
ingrained and strongly felt public policy of this state, however, we have
recognized that we may nevertheless apply and enforce this state’s positive
substantive law. McNeal v. Administrator of Estate of McNeal, 254 So. 2d
521, 524 (Miss. 1971).

Boardman v. United Servs. Auto. Ass’n, 470 So. 2d 1024, 1031 (Miss. 1985).

10
¶18. In today’s case, the trial court determined that Tennessee law would apply to UM

coverage, tort claims, and recovery, including “plaintiffs’ claims of negligence.” In contrast,

the trial court also found that any issues involving Mississippi’s Rules of the Road would be

controlled by Mississippi law. The trial court found that Tennessee laws were not repugnant

to the laws and policies of Mississippi and that Tennessee was the proper choice of law for

all but the Mississippi Rules of the Road. The trial court erred in concluding that Tennessee

law would apply to “tort and recovery claims” and Plaintiffs’ negligence claims, for such

negligence would be based on a violation of Mississippi’s Rules of the Road. We reverse and

remand for proceedings consistent with this opinion.

A. Uninsured Motorist Coverage

¶19. The precedent set by this Court dictates that Tennessee law should apply to the UM

insurance coverage under the automobile insurance policy in this dispute. See O’Rourke v.

Colonial Ins. Co., 624 So. 2d 84 (Miss. 1993), and Boardman, 470 So. 2d 1024. Both the

place of contracting and the place of negotiation were in Tennessee. The contract was

performed substantially in Tennessee. The vehicles involved were garaged principally in

Tennessee. And the domicile, residence, and place of business of the parties is Tennessee.

Thus, Tennessee’s law applies as to whether the Plaintiffs are insureds under the policy and,

if so, the limits of liability.5 Church Mutual has raised no coverage issues.

¶20. Nothing in this commercial automobile policy excludes these Plaintiffs from

recovering damages from an uninsured/underinsured motorist, provided they prove their case.

5
See O’Rourke, 624 So. 2d 84, and Boardman, 470 So. 2d 1024.

11
The policy reads that Church Mutual is obligated to pay for an insured’s injuries, and no

exclusions to that obligation to pay were applicable. Moreover, policy exclusions were not

claimed by Church Mutual and were not before the trial court. Church Mutual’s argument

is that Tennessee law should apply to all issues – no direct action against the UM carrier and

no compensable damages as to Smith – not that all Plaintiffs were not insured under the

policy.

¶21. The distinction in substantive tort law does not control recovery under the policy. The

policy language controls recovery if Plaintiffs prove that Johnson violated the rules of the

road and that violation was a cause of the accident and their damages. Nothing in the policy

excludes Plaintiffs from the recovery sought, once violation and causation are proven.

Church Mutual has presented no evidence that the UM policy is invalid when the vehicle is

operated in states other than Tennessee. No matter if an accident occurred in Maine or

Florida, Washington, Southern California, or Mississippi, Plaintiffs are entitled to recover

damages (supra ¶ 4) under the policy, provided they meet the policy requirements. The relief

Church Mutual is seeking is not provided for in the policy. What could prevent recovery is

not the policy, but Tennessee’s substantive law. However, nothing in the policy states that

Tennessee statutory law controls tort claims and recovery.

B. Conflicting Laws

¶22. An actual conflict exists between the substantive tort laws of Mississippi and

Tennessee. Under Mississippi law, a wrongful-death claim may be brought on behalf of a

“quick” fetus, while Tennessee law permits a wrongful-death claim only for fetuses deemed

12
“viable” at the time of injury. Compare Miss. Code Ann. § 11-7-13 (Rev. 2004), with Tenn.

Code § 20-5-106(d) (2009 & Supp. 2017). Additionally, Mississippi applies a pure

comparative-fault scheme, while Tennessee uses a modified comparative-fault scheme.

Compare Miss. Code Ann. § 11-7-15 (Rev. 2004), with McIntyre v. Balentine, 833 S.W.2d

52, 57 (Tenn. 1992) (abrogating contributory-negligence scheme and adopting “a system of

modified comparative fault”).

¶23. A primary consideration in determining the applicable state’s law is the “advancement

of the forum’s governmental interests.” Mitchell v. Craft, 211 So. 2d 509, 514 (Miss. 1968).

We will assume that a case is to be governed by the law of the forum unless it
is expressly shown that a different law applies, and in case of doubt, a court
will naturally prefer the laws of its own state. Moreover, a forum state will not
favor application of a rule of law repugnant6 to its own purposes, and forum
law should presumptively apply unless it appears that non-forum contacts are
of greater significance.

Id. at 512. “Courts of this state will not give effect to the substantive law of another state if

to do so would be ‘offensive to the deeply ingrained or strongly felt public policy of the

state.’” Zurich American Ins. Co. v. Goodwin, 920 So. 2d 427, 437 (Miss. 2006) (quoting

Boardman, 470 So. 2d at 1038).

1. Wrongful-Death Claims

¶24. Mississippi has declared a governmental interest in the dignity and intrinsic worth of

the unborn and has bestowed the status of a person when the unborn shows some evidence

of life within the womb. Separately, Mississippi has declared that the unborn also have

6
Webster’s defines “repugnance” as “the relationship of contradictory terms:
inconsistency.” Repugnance, Webster’s II New College Dictionary 942 (2001).

13
extrinsic, economic value. If Tennessee law is applied, a remedy for a loss of this value is

unavailable in this wrongful-death case.

¶25. This Court has held that a mother is entitled to bring a wrongful-death claim for the

death of a nonviable fetus. 66 Fed. Credit Union v. Tucker, 853 So. 2d 104 (Miss. 2003).

Prior to Tucker, Mississippi’s Wrongful Death Act created a cause of action for “the

wrongful death of an unborn child where the fetus was viable at the time of death.” Id. at 108

(citing Sweeney v. Preston, 642 So. 2d 332 (Miss. 1994); Terrell v. Rankin, 511 So. 2d 126

(Miss. 1987); Rainey v. Horn, 221 Miss. 269, 72 So. 2d 434 (1954)) (emphasis added). In

Tucker, this Court set forth the difference between “viable” and “quick”:

Along with the right to recover for prenatal injuries came questions about the
required stage of development of the child when injured. Those questions
asked whether the child had to be “quick” in its mother’s womb, or whether
the child had to be viable, or whether the child had to survive birth. A “quick
child” is defined as a child “that has developed so that it moves within the
mother’s womb.” Black’s Law Dictionary 1415 (4th ed.1968). “Viable” is a
“term applied to a newly-born infant, and especially to one prematurely born,
which is not only born alive, but in such a state of organic development as to
make possible the continuments of its life.” Id. at 1737.

Tucker, 853 So. 2d at 107. After examining the criminal statues, which had been amended

in 2000 to add the language “willful killing of an unborn quick child,” see 2000 Miss. Laws

337 (H.B. 923), this Court removed “viability” and adopted “unborn quick child” as the

demarcation line for recovery under Mississippi’s Wrongful Death Act.

The purposes of the wrongful death statute are to prevent the wrongful
termination of life and provide the beneficiary with compensation for the loss
of companionship and society of the deceased, the pain and suffering of the
deceased between injury and death, and punitive damages. See McGowan v.
Estate of Wright, 524 So. 2d 308, 311 (Miss. 1988). We decline to draw a line
at viability. The wrongful death statute creates a general cause of action and

14
 designates its beneficiaries without specifying whether a fetus is considered a
“living” “individual” or “person” whose death could give rise to such an
action. Finding pertinent language in Miss. Code Ann. § 97-3-37, we maintain
consistency with our criminal statute’s express limitation that “the willful
killing of an unborn quick child, by an injury to the mother of such child,
which would be murder if it resulted in the death of the mother, shall be
manslaughter.” Miss. Code Ann. § 97-3-37 (emphasis added).

...

Viability is not the appropriate criterion to determine whether the unborn is a
“person” within the context of the wrongful death statute. . . . In truth, a
viability standard is arbitrary and all too often results in an injustice when a
non-viable fetus would have most likely survived, but for the intervening
wrongful, tortious conduct of another. Then, to make matters worse, the
wrongdoer goes unpunished and totally escapes liability for inflicting fatal
injuries. . . . Following the example of the Supreme Court of Georgia and
looking to our own Legislature’s reasoning in this area, we adopt the standard
as found in our criminal statute, Miss. Code Ann. § 97-3-3, which will permit
recovery for the death of a child that is “quick” in the womb. This standard
will promote the purpose of our wrongful death statute in preventing the
wrongful termination of life. This holding will ensure that all tortfeasors are
held accountable for injuries they inflict. Problems with proof and causation
are no greater in this type of case than in many other tort claims.

Tucker, 853 So. 2d at 109-10, 114.

¶26. Soon after this Court held that a wrongful-death cause of action existed for an unborn,

quick child, the Legislature amended the Wrongful Death Act to reflect its approval of

Tucker. See 2004 Miss. Laws 515 (H.B. 352).7 The Legislature further amended the criminal

7
SECTION 1. Section 11-7-13, Mississippi Code of 1972, is amended as follows:

11-7-13. Whenever the death of any person or of any unborn quick child shall
be caused by any real, wrongful or negligent act or omission, or by such
unsafe machinery, way or appliances as would, if death had not ensued, have
entitled the party injured or damaged thereby to maintain an action and
recover damages in respect thereof, or whenever the death of any person or
of any unborn quick child shall be caused by the breach of any warranty,
express or implied, of the purity or fitness of any foods, drugs, medicines,

15
statutes to define the term “human being” as “an unborn child at every stage of gestation

from conception until live birth and the term ‘unborn child’ means a member of the species

homo sapiens, at any stage of development, who is carried in the womb. . . .” See 2004 Miss.

Laws 521 (S.B. 2869). Mississippi’s public policy and stated governmental interest leave no

doubt that viability is not the demarcation line for an “unborn, quick child.”

¶27. Mississippi’s law designating when the loss of an unborn becomes compensable

conflicts with Tennessee’s law. Tennessee’s law mirrors Mississippi’s prior law. Tennessee

wrongful-death claims allow recovery only for unborn children deemed “viable” at the time

beverages, tobacco or any and all other articles or commodities intended for
human consumption, as would, had the death not ensued, have entitled the
person injured or made ill or damaged thereby, to maintain an action and
recover damages in respect thereof, and such deceased person shall have left
a widow or children or both, or husband or father or mother, or sister, or
brother, the person or corporation, or both that would have been liable if death
had not ensued, and the representatives of such person shall be liable for
damages, notwithstanding the death, and the fact that death was instantaneous
shall in no case affect the right of recovery. The action for such damages may
be brought in the name of the personal representative of the deceased person
or unborn quick child for the benefit of all persons entitled under the law to
recover, or by widow for the death of her husband, or by the husband for the
death of the wife, or by the parent for the death of a child or unborn quick
child, or in the name of a child, or in the name of a child for the death of a
parent, or by a brother for the death of a sister, or by a sister for the death of
a brother, or by a sister for the death of a sister, or a brother for the death of
a brother, or all parties interested may join in the suit, and there shall be but
one (1) suit for the same death which shall ensue for the benefit of all parties
concerned, but the determination of such suit shall not bar another action
unless it be decided on its merits. Except as otherwise provided in Section 11-
1-69, in such action the party or parties suing shall recover such damages
allowable by law as the jury may determine to be just, taking into
consideration all the damages of every kind to the decedent and all damages
of every kind to any and all parties interested in the suit.

2004 Miss. Laws 515 (H.B. 352).

16
of death. See Tenn. Code § 20-5-106(d). Smith’s Complaint seeks damages for the loss of

a quick child. Under Tennessee law, Smith must prove viability. Thus, under Tennessee law,

no recovery can be had absent that proof, which Mississippi does not require. Tennessee’s

law is contrary to Mississippi’s stated public policy and governmental interest. See Zurich,

920 So. 2d at 437.

¶28. When a person steps foot in this State, he not only is bound to abide by, but is also

burdened with Mississippi law, which the trial court recognized in applying Mississippi’s

Rules of the Road. Likewise, persons are entitled to the benefits that come with those

burdens, including any rights provided by Article 3 of our State Constitution. The privileges

afforded by our Bill of Rights include Article 3, Section 24,8 which specifically provides a

remedy for all injuries. Wrongful-death beneficiaries of an unborn, quick child are afforded

a right to a remedy for their injury. Such a deprivation of that right is wholly repugnant to the

laws of this State.

2. Comparative Fault

¶29. Equally important to injured persons is the right to recover damages for their injuries.

Mississippi has had a comparative-negligence statute since 1910, when the Legislature

determined that contributory negligence no longer would be a complete bar for recovery. See

8
Pursuant to Article 3, Section 24 of our Mississippi Constitution:

All courts shall be open; and every person for an injury done him in his lands,
goods, person, or reputation, shall have remedy by due course of law, and right
and justice shall be administered without sale, denial, or delay.

Miss. Const. art 3, § 24.

17
Miss. Code Ann. § 11-7-15 (Rev. 2004).9 “Comparative negligence represents a

long-established, salutary and worthwhile policy of this State.” Mitchell, 211 So. 2d at 513.

The first comparative negligence statute of general applicability in this country
was enacted in Mississippi in 1910. . . . The statute creates what might be
called true comparative negligence in that it rejects the requirement . . . that
the plaintiff’s negligence be less than that of the defendant. . . . [T]he
Mississippi rule presents comparative negligence in its purest and most
comprehensive form. . . .

Peck, C.J., Comparative Negligence and Automobile Liability Insurance, 58 Mich. L. Rev.

689, 702-703 (1960).

¶30. Since 1910, forty-six states have adopted some form of comparative negligence.

Fifteen states, beginning with Mississippi, adopted pure comparative fault, which allows an

injured person to recover damages, reduced by the percentage of fault attributed to that

person. Twenty states permit injured persons to recover damages reduced by their percentage

of fault only if their negligence does not exceed that of the defendant (the fifty-percent rule).

Nine permit recovery only if plaintiff’s negligence is less than that of the defendant (the

forty-nine-percent rule), which has been adopted by Tennessee. The remaining two states

have “slight/gross” negligence systems under which, only if the plaintiff’s fault is greater

than slight, is it barred from recovery. See McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.

1992).

9
Church Mutual specifically pleaded for application of Mississippi’s pure-
comparative negligence statute in its affirmative defenses.

18
¶31. Tennessee law on this subject is a century behind Mississippi in certain accidents, and

could significantly affect the parties before us.10 Tennessee’s modified comparative-

negligence statute rejects Mississippi’s deeply ingrained public policy and allows recovery

only if an injured party’s negligence is less than that of the defendant. The percentage of

negligence, if any, of either is unknown to us. This is a jury question to be determined by

proof of a violation(s) of Mississippi’s Rules of the Road. In a number of cases, applying

Tennessee’s modified comparative-negligence law could result in no recovery to a severely

injured person.

¶32. To prefer and apply Tennessee laws, which are repugnant to the laws of this State, is

“offensive to the deeply ingrained or strongly felt public policy of the state.” Zurich, 920 So.

2d at 437. The trial court erred when it concluded Tennessee’s laws did not violate the public

policy or governmental interest of this State. Given the specific facts of this case, Mississippi

substantive tort law provides Tarinika Smith and the wrongful-death beneficiaries of Kayden

Johnson a remedy. Applying Tennessee law to the same facts, they are without remedy for

the death of an unborn quick child. Furthermore, dependent upon the jury’s allocation of fault

determined by Mississippi’s pure comparative negligence and Rules of the Road, not only

may Plaintiffs be deprived of a remedy for their personal injuries, but Adlai Johnson as well.

C. Direct Action Against UM Carrier

10
In a separate action, Johnson sued Smith, and Smith counterclaimed. Under
Tennessee law, a jury could find each to be equally at fault, which would prevent recovery
for either.

19
¶33. Mississippi allows a direct action suit against a UM carrier, and a suit against the

uninsured motorist is not required. See Vaughn v. State Farm Mut. Auto. Ins. Co., 445 So.

2d 224, 226 (Miss. 1984); Harthcock v. State Farm Mutual Auto. Ins. Co., 248 So. 2d 456

(Miss. 1971); Farned v. Aetna Cas. & Surety Co., 263 So. 2d 790 (Miss. 1972); Hodges v.

Canal Ins. Co., 223 So. 2d 630 (Miss. 1969). Tennessee’s UM statutes, unlike Mississippi’s,

generally bar direct actions against insurers for UM benefits. See Griffin v. Shelter Mut. Ins.

Co., 18 S.W.3d 195, 199 (Tenn. 2000).

¶34. Tennessee’s exception to its general bar, Section 56-7-1206(d) of the Tennessee Code,

provides:

In the event that service of process against the uninsured motorist, which was
issued to the motorist’s last known address, is returned by the sheriff or other
process server marked, “Not to be found in my county,” or words to that effect,
. . . the service of process against the uninsured motorist carrier, pursuant to
this section, shall be sufficient for the court to require the insurer to proceed
as if it is the only defendant in the case.

Tenn. Code § 56-7-1206(d) (emphasis added). Although Johnson was dismissed properly

from the matter for Plaintiffs’ failure to timely serve him under Rule 4(h), Plaintiffs’

summons was returned as “unclaimed.”

¶35. Given today’s holdings and the similarity between Mississippi’s basic direct action

law and Tennessee’s exception, Church Mutual’s claim of conflict of law is tenuous, at best.

As the Mitchell Court held, we always look first to the law of the forum state, which is

Mississippi. Mitchell, 211 So. 2d at 514. Additionally, if there is doubt, we prefer the laws

of our own State. Id. It is hard to find error with the trial court, for the words “unclaimed”

and “not found in my county” are different, but those distinctions grow much dimmer

20
because we already have held that Mississippi substantive law applies. Such a minimal

distinction should not destroy Plaintiffs’ action. Since there is doubt, that benefit lies with

the forum state. Since this suit remains in Mississippi with the substantive law of Mississippi

applying, Mississippi’s direct-action law also applies.

¶36. Tennessee’s general bar on direct actions does not preclude this suit. We reverse the

circuit court’s order granting Church Mutual summary judgment and dismissing without

prejudice Plaintiffs’ claims.

CONCLUSION

¶37. We hold that the circuit court did not err in dismissing Adlai Johnson pursuant to

Mississippi Rule of Civil Procedure 4(h). However, the trial court erred in finding that

Tennessee substantive law controlled Plaintiffs’ claims of negligence and Plaintiffs’ contract

claims against Church Mutual. We reverse the trial court’s order granting Church Mutual’s

Motion to Declare Tennessee Substantive Law Controlling and its order granting Church

Mutual’s Motion for Summary Judgment. We remand this case for proceedings consistent

with this opinion.

¶38. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.
ISHEE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE
WRITTEN OPINION JOINED BY WALLER, C.J., AND KITCHENS, P.J.

ISHEE, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶39. While I agree that Johnson was properly dismissed from the underlying suit, I disagree

with much of the majority’s analysis regarding the conflict-of-laws issues. Specifically, I

21
find the majority’s invocation of the public-policy “escape device” unwarranted. Put simply,

Tennessee has the superior interest in this case—not Mississippi. Therefore, I respectfully

concur in part and dissent in part with today’s judgment.

I. Choice of Law and Conflict of Laws

¶40. Plaintiffs argue that the circuit court erred in determining that Tennessee substantive

law governed as to the parties’ claims and defenses. Instead, Plaintiffs assert that

Mississippi’s choice-of-law principles mandate that Mississippi’s substantive laws govern.

I disagree and thus would affirm the circuit court’s judgment as to this issue.

¶41. “A choice[-]of[-]law analysis arises only when there is a true conflict between the

laws of two states, each having an interest in the litigation.” Zurich Am. Ins. Co. v.

Goodwin, 920 So. 2d 427, 432 (Miss. 2006). In this case, a true conflict exists between the

laws of Mississippi and Tennessee. Under Mississippi law, a wrongful-death claim may be

brought on behalf of a “quick” fetus, whereas Tennessee law permits a wrongful-death claim

only for fetuses deemed “viable” at the time of injury. Compare Miss. Code Ann. § 11-7-13

(Rev. 2004), with Tenn. Code § 20-5-106(d) (2009 & Supp. 2017). Additionally, Mississippi

applies a pure comparative-fault scheme, while Tennessee utilizes a modified comparative-

fault scheme. Compare Miss. Code Ann. § 11-7-15 (Rev. 2004), with McIntyre v.

Balentine, 833 S.W.2d 52, 57 (Tenn. 1992) (abrogating contributory-negligence scheme and

adopting “a system of modified comparative fault”).

¶42. Because this suit was brought in Mississippi, we apply Mississippi’s choice-of-law

principles. And in Mississippi, a “[c]hoice[-]of[-]law analysis involves a multi-step process.”

22
Zurich, 920 So. 2d at 432. “First[,] it must be determined whether the conflicting laws are

substantive or procedural.” Id. at 433. “Regardless of the substantive law to be applied,

Mississippi courts will apply their own procedural law.” Id. “The second step in [our]

choice[-]of[-]law analysis is to classify the substantive area of law” (i.e., tort, contract, or

property). Id. Once determined, Mississippi resolves true conflicts by applying the “center

of gravity” doctrine, found in the Restatement (Second) Conflict of Laws. This is done by

applying enumerated contacts from the Restatement (Second)’s relevant, substantive

provisions. Hancock v. Watson, 962 So. 2d 627, 629 (Miss. 2007); see also Mitchell v.

Craft, 211 So. 2d 509, 510 (Miss. 1968); Restatement (Second) Conflict of Laws § 145 (Am.

Law Inst. 1971).

¶43. As this Court in Mitchell v. Craft stated:

The doctrine is a rule whereby the court trying the action applies the law of the
place which has the most significant relationship to the event and parties or
which, because of the relationship or contact with the event and parties, has the
greatest concern with the specific issues with respect to liabilities and rights
of the parties to the litigation.

Mitchell, 211 So. 2d at 515 (citing 15A C.J.S. Conflict of Laws 8(2) (1967)) (emphasis

added).

¶44. Applying the first two steps here, the Plaintiffs’ claims and Johnson’s defenses are

substantive in nature, and sound in the area of tort.11 Thus, we now must apply the “center

of gravity” test to determine whether Mississippi or Tennessee has the superior interest in

11
Whether Tennessee’s substantive law governs Plaintiffs’ contractual claims against
Church Mutual will be addressed separately.

23
this case, which, in turn, will determine which state’s law shall apply. Mitchell, 211 So. 2d

at 515.

A. Application of the Most-Significant-Relationship Test to
Plaintiffs’ Tort-Based Issues

¶45. To ascertain which state has the “most significant relationship,” we look to the

language of Restatement (Second)’s Section 145, which provides:

(1) The rights and liabilities of the parties with respect to an issue in tort are
determined by the local law of the state which, with respect to that issue, has
the most significant relationship to the occurrence and the parties under the
principles stated in § 6.12

(2) Contacts to be taken into account in applying the principles of § 6 to
determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicile, residence, nationality, place of incorporation
and place of business of the parties, and

(d) the place where the relationship, if any, between the parties
is centered.

Restatement (Second) Conflict of Laws § 145. And “rather than looking at minimum

contacts, [we focus] where the contacts are maximized.” Church v. Massey, 697 So. 2d 407,

410 (Miss. 1997) (internal quotations omitted) (emphasis added).

12
“Restatement (Second) Conflict of Laws § 6 sets forth the general principles and
factors to be considered in a choice[-]of[-]law analysis, including policy considerations,
uniformity of results in the application of the analysis, and ease in application of the
analysis.” Hancock, 962 So. 2d at 630 n.3 (emphasis added); see also Restatement (Second)
Conflict of Laws § 6(2).

24
¶46. So, looking to the first two factors, the injury and the conduct causing the injury

occurred in Mississippi.13 And though the first two factors initially weigh in favor of

Mississippi, this Court has made clear that the place where the injury occurred often “bears

little relationship to any relevant considerations for choosing one law against another in a

particular tort case.” Mitchell, 211 So. 2d at 513. This is so especially in cases such as this

one, where the collision and the conduct causing the collision are the sole relationship to

Mississippi. That is, it was a “purely adventitious circumstance that the collision happened

in [Mississippi].” Id.

¶47. Next, the third factor—the domicile and residence of the parties—reveals that

Tennessee has the dominant interest. This is because all the parties, except for Church

Mutual, are Tennessee residents. In addition, the sole witness to the collision is a Tennessee

resident, and the vehicle utilized by Plaintiffs was owned by Mt. Vernon (a Tennessee church

and the named insured under the Church Mutual policy at issue, which was issued and

delivered in Tennessee). Referring to the Comment on Section 145(2)(c), it provides that,

“[t]he state where these contacts are grouped is particularly likely to be the state of the

applicable law . . . [and] [t]his state may also be the state of the applicable law when conduct

and injury occurred in a place that is fortuitous and bears little relation to the occurrence and

13
Though the conduct causing the alleged wrongful death of Smith’s fetus occurred
in Mississippi, the actual injury (Smith’s miscarriage) occurred in Tennessee. But under
Restatement (Second)’s Section 175, the place of the injury for a wrongful-death claim is the
place of the initial injury that causes death (which here, is Mississippi), and not the place
where the death occurs (Tennessee). See Restatement (Second) Conflict of Laws § 175.

25
the parties.” Restatement (Second) Conflict of Laws § 145(2)(c) cmt. e. Therefore, these

contacts, taken together with the Comment’s guidance, weigh entirely in favor of Tennessee.

¶48. As for the last factor, however, I find that it does not apply in this case. That is, the

parties agree that they did not have a relationship prior to the collision. Though Plaintiffs

argue that the parties’ relationship became “centered” in Marshall County, as that is where

the collision occurred, I find this assertion unpersuasive. As the Restatement (Second)

provides, we are to review “the place where the relationship, if any, between the parties is

centered.” Restatement (Second) Conflict of Laws § 145(2)(d) (emphasis added). But going

further, the Comment to Section 145(2)(d) states that “[w]hen there is a relationship between

the plaintiff and the defendant and when the injury was caused by an act done in the course

of the relationship,” then where the relationship is “centered” becomes a relevant contact.

Id. cmt. e (emphasis added). Thus, the plain language of, and official comment to, Section

145(2)(d) both provide that this particular contact will not apply in all cases—such as the

case here.

¶49. And so, I would conclude that Mississippi’s choice-of-law principles require that the

laws of Tennessee apply to the parties’ tort-based claims and defenses in this case—absent,

of course, a finding that the relevant Tennessee laws are repugnant to Mississippi’s public

policies. And for clarity’s sake, my conclusion that Tennessee law applies does not abrogate

the circuit court’s finding (and the parties’ concession) that Mississippi’s Rules of the Road

will determine negligence—rather, Tennessee’s laws should govern as to the degree of

26
recovery (if any) and as to Smith’s wrongful-death claim, which is discussed in further detail

below.

B. Repugnance, if any, of Tennessee Laws

¶50. As the majority articulates, “[c]ourts of this state will not give effect to the substantive

law of another state if to do so would be ‘offensive to the deeply ingrained or strongly felt

public policy of the state.’” Zurich, 920 So. 2d at 437 (quoting Boardman v. United Servs.

Auto. Ass’n, 470 So. 2d 1024, 1038 (Miss. 1985)). Being such, “[t]his Court recognizes that

the laws of other states sometimes conflict with Mississippi law[, but] [c]onflict between the

law of our state and another state does not itself mean that the foreign law is so offensive that

it must be set aside.” Zurich, 920 So. 2d at 437 (emphasis added). And thus, as this Court

reiterated in Zurich:

We have found only two examples of another state’s law which were offensive
to Mississippi’s deeply ingrained public policy. The first involved application
of Louisiana’s contributory negligence statute as opposed to Mississippi’s
comparative negligence statute when it would have barred recovery to a
Mississippi plaintiff. The second involved application of Louisiana law to
allow a widow and child to sue a deceased in tort.

Id. (internal citations omitted).

¶51. Here, Plaintiffs assert that, because true conflicts exist between the laws of

Mississippi and Tennessee, it follows that Tennessee’s laws are repugnant to the laws of

Mississippi. Specifically, Plaintiffs assert as repugnant both Tennessee’s wrongful-death

statute and its comparative-fault scheme. Plaintiffs, however, cite no authority supporting

these specific propositions. But even so, in light of our caselaw on these issues, I would not

27
find the Tennessee laws repugnant to Mississippi’s and, therefore, Tennessee law should

govern a majority of the issues in this case.

¶52. To reiterate, Mississippi allows a wrongful-death claim be brought on behalf of a

“quick” fetus, whereas Tennessee law permits wrongful-death claims for fetuses only

deemed “viable” at the time of injury. Compare Miss. Code Ann. § 11-7-13, with Tenn.

Code § 20-5-106(d). And as outlined by the majority, Mississippi’s use of the term “unborn

quick child” in Section 11-7-13 has been interpreted and defined by this Court as “one that

has developed so that it moves within the mother’s womb,” but is not yet “viable.” See 66

Fed. Credit Union v. Tucker, 853 So. 2d 104, 110 (Miss. 2003) (adopting definition of

“quick child” from criminal statute, Mississippi Code Section 97-3-37 (1972), as discussed

in Willis v. State, 518 So. 2d 667 (Miss. 1988)).

¶53. Tennessee, however, sets the threshold at viability—which, under its wrongful-death

statute, is defined as a fetus “[having] achieved a stage of development wherein it could

reasonably be expected to be capable of living outside the uterus.” Tenn. Code § 20-5-

106(d). Thus, while Tennessee maintains a heightened standard for wrongful-death claims

brought on behalf of fetuses, it does not altogether bar such claims for relief. I find this to

be an important distinction. Because Mississippi and Tennessee both allow such claims

(albeit, under different standards), we should not hold that Tennessee’s wrongful-death

statute is repugnant, so as to violate our deeply ingrained public policies. See Zurich, 920

So. 2d at 437.

28
¶54. The majority, however, does just that. But “repugnance,” as defined within the

conflict-of-laws context, differs from the version articulated by the majority. (See Maj. Op.

¶ 23) (defining repugnance as “the relationship of contradictory terms: inconsistency.”).

Indeed, repugnance requires more than mere inconsistencies. Rather, in this context,

repugnance has been defined as violating “some fundamental principle of justice, some

prevalent conception of morals, some deep-seated tradition of the common weal.” Loucks

v. Standard Oil Co. New York, 224 N.Y. 99, 111, 120 N.E. 198 (N.Y. 1918). So, while the

majority spends much time discussing the policies supporting Mississippi’s wrongful-death

statute, it entirely ignores Tennessee’s policies—despite Tennessee’s dominant interest in

this case.

¶55. At bottom, Tennessee’s wrongful-death statute should apply to its citizens, however

unfortunate that result may be on these facts. Doing such would further the Restatement

(Second)’s goal of fostering interstate comity, while also curbing forum shopping. Today’s

result, however, undermines these goals. And in doing so, the majority doubles the few,

articulated policy exceptions we have long held to be so fundamental that rejection of a

foreign law was justified. See Zurich, 920 So. 2d at 437. But given Mississippi’s weak

interests in this case (no Mississippi citizens or decedents), our law simply should not apply.

¶56. As to whether Tennessee’s comparative-fault scheme is repugnant to Mississippi’s,

I likewise cannot find such. Again, Mississippi applies a pure comparative-fault scheme,

while Tennessee utilizes a modified comparative-fault scheme. Compare Miss. Code Ann.

§ 11-7-15, with McIntyre, 833 S.W.2d at 57. Thus, in Mississippi, an injured party’s

29
“damages shall be diminished by the jury in proportion to the amount of negligence

attributable to the person injured,” if any. Miss. Code Ann. § 11-7-15. But under

Tennessee’s modified comparative-fault rules, an injured party may recover “so long as [an

injured party’s] negligence remains less than the defendant’s negligence.” McIntyre, 833

S.W.2d at 57. So, under each state’s scheme, an injured party may recover—up to a certain

level—even when that injured party contributed to the negligent action. Comparative-

negligence schemes, however, are in stark contrast to the doctrine of contributory negligence,

which bars an injured party’s right to recover should the party be even one percent at fault.

See generally Mitchell, 211 So. 2d at 510.

¶57. In that vein, Plaintiffs (and the majority to an extent) rely on Mitchell to argue the

repugnance of Tennessee’s fault scheme, but such reliance is misguided. That is, while the

Mitchell Court rejected application of the contributory-negligence doctrine, thus finding it

repugnant to Mississippi’s deeply ingrained public policy, it did so in light of Mississippi’s

superior interests in that case and the effect the doctrine would have upon Mississippi

residents. Id. at 510 (emphasis added). Mitchell, like this case, involved a vehicular

collision in a state other than the parties’ state of domicile—that is, the collision occurred in

Louisiana, while all parties were from Mississippi. Id. Finding that Mississippi residents

would be denied recovery due to Louisiana’s doctrine of contributory negligence, this Court

rejected application of Louisiana’s law. Id.

¶58. But the rationale justifying the Mitchell Court’s rejection of a foreign law is not

present here, because here, Tennessee has the most significant relationship to the parties,

30
claims, and defenses. In fact, Mississippi has but a fortuitous interest in this case. And so,

while Plaintiffs would be entitled greater leeway under Mississippi’s pure comparative-fault

scheme, that alone is not enough to reject Tennessee’s superior interests in applying its own

modified comparative-fault rules to its own citizens, and to those doing business in its

state—which includes all the parties here. To that end, Tennessee expressly has outlined its

policy stance on this issue, stating:

[W]e nevertheless decline to abandon totally our fault-based tort system. We
do not agree that a party should necessarily be able to recover in tort even
though he may be 80, 90, or 95 percent at fault. We therefore reject the pure
form of comparative fault . . . . [T]he “49 percent rule” ameliorates the
harshness of the common[-]law rule while remaining compatible with a fault-
based tort system.

McIntyre, 833 S.W.2d at 57. Thus, Tennessee’s fault scheme can and should be applied,

notwithstanding the application of Mississippi’s Rules of the Road. See Fells v. Bowman,

274 So. 2d 109, 112-13 (Miss. 1973) (holding that, while one state’s interest in a case may

require application of its rules of the road to determine negligence, another state’s interest

may require application of its fault-based scheme).

¶59. So, having found that Tennessee has the superior interest as to the issues raised in this

appeal, I would hold that Tennessee’s substantive laws should govern—and because the

respective laws are not repugnant, so as to require their rejection, I would affirm the circuit

court’s judgment as to the issues outlined above.

C. Application of the Most-Significant-Relationship Test to
Plaintiffs’ Contract-Based Issues

31
¶60. Plaintiffs’ claims against Church Mutual are contractual in nature, as they sought UIM

benefits under the policy issued by Church Mutual to Mt. Vernon. And so, in its same order

holding that Tennessee substantive law would govern as to Plaintiffs’ negligence claims, the

circuit court also held that Tennessee law would control Plaintiffs’ contractual claims. The

circuit court held such by applying Sections 6, 188, and 193 of the Restatement (Second).

Section 188 governs contractual issues generally, while Section 193 addresses more

specifically “the uninsured[-]motorist feature of a liability insurance contract[.]” Boardman,

470 So. 2d at 1033; see generally Restatement (Second) Conflict of Laws §§ 188, 193.

¶61. Because of the circuit court’s holding, Tennessee’s UIM motorist statute, Tennessee

Code Section 56-7-1201 (2017), applied. And so, Section 56-7-1201, by effect, incorporated

Tennessee Code Section 56-7-1206(d) (2017), which pertains to service of process by injured

parties on uninsured motorists and its effect on whether a direct action may be maintained.

¶62. To begin, I find it noteworthy that Plaintiffs concede Tennessee’s substantive UIM

principles govern Church Mutual’s policy at issue here, including Tennessee’s statutes,

regulations, and caselaw. See Fleming v. Yi, 982 S.W. 2d 868, 870 (Tenn. App. 1998)

(holding that, as a matter of law, all of Tennessee’s UIM statutes become provisions of all

automobile insurance policies issued for delivery in Tennessee). So it would appear the

circuit court’s holding as to Plaintiffs’ contractual claims against Church Mutual is a

nonissue—however, Plaintiffs and the majority later claim that Plaintiffs can maintain a

direct action against Church Mutual, which refutes directly the plain language of Section 56-

32
7-1206(d). While the majority agrees with the Plaintiffs, I do not. As such, I address first

the circuit court’s conclusion that Tennessee law governed Plaintiffs’ contractual claims.

D. Restatement (Second) Section 188

¶63. Under Section 188(2), this Court looks to contacts such as “(a) the place of

contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the

location of the subject matter of the contract, and (e) the domicile, residence, nationality,

place of incorporation, and place of business of the parties.” Restatement (Second) Conflict

of Laws § 188. And, more specifically, Section 193 provides:

The validity of a contract of fire, surety or casualty insurance and the rights
created thereby are determined by the local law of the state which the parties
understood was to be the principal location of the insured risk during the term
of the policy, unless with respect to the particular issue, some other state has
a more significant relationship under the principles stated in § 6 to the
transaction and the parties, in which event the local law of the other state will
be applied.

Restatement (Second) Conflict of Laws § 193 (emphasis added). As this Court in Boardman

held, “[t]he central thrust of Restatement § 193 is that the law applicable in actions on

insurance contracts (other than those providing life insurance) should [be] the law of the state

the parties understood was to be the principal location of the risk.” Boardman, 470 So. 2d

at 1033.

¶64. In applying these provisions, I find that the circuit court correctly concluded that

Tennessee law governed Plaintiffs’ contractual claims. As articulated by the circuit court

regarding the contacts under Section 188, both the place of contracting and the place of

negotiation were in Tennessee; the contract was substantially performed in Tennessee; the

33
subject matter of the contract (Mt. Vernon’s vehicle) was principally garaged in Tennessee;

and lastly, we know that the domicile, residence, and place of business of the parties is

Tennessee. Thus, Section 188 weighs entirely in favor of Tennessee.

¶65. As for Section 193, the “principal location of the insured risk” in this case must be

Tennessee—as the policy before us was issued and delivered in Tennessee, to a citizen of

Tennessee, for the coverage of a vehicle principally garaged in Tennessee. See Boardman,

470 So. 2d at 1033. Therefore, I would affirm the circuit court’s holding and find that

Tennessee law governs the parties’ contractual claims and defenses. That being so, I now

address the effect of Tennessee’s UIM statutes on Plaintiffs’ claims against Church Mutual.

E. Tennessee Code Section 56-7-1206(d)

¶66. As a general matter, Tennessee’s UIM statutes bar direct actions against insurers for

UIM benefits. See Griffin v. Shelter Mut. Ins. Co., 18 S.W.3d 195, 199 (Tenn. 2000)

(holding “a plaintiff generally may not institute a direct action against an uninsured motorist

carrier”). Thus, “[a]bsent a specific policy provision authorizing a direct action, the

uninsured motorist statute does not permit a plaintiff to bring suit directly against an

uninsured motorist carrier.” Id. at 198. But one exception to Tennessee’s general bar on

direct actions is found under Section 56-7-1206(d).

¶67. Section 56-7-1206(d) provides:

In the event that service of process against the uninsured motorist, which was
issued to the motorist’s last known address, is returned by the sheriff or other
process server marked, “Not to be found in my county,” or words to that effect,
. . . the service of process against the uninsured motorist carrier, pursuant to
this section, shall be sufficient for the court to require the insurer to proceed
as if it is the only defendant in the case.

34
Tenn. Code § 56-7-1206(d) (emphasis added). And so, the statute’s plain language

articulates that the summons must be “returned . . . ‘[n]ot to be found in my county,’ or words

to that effect[.]” See id. Otherwise, the statute’s exception cannot be triggered. See Liput

v. Grinder, 405 S.W. 3d 664, 675 (Tenn. Ct. App. 2013).

¶68. Applied here, Section 56-7-1206(d)’s exception has not been triggered. Johnson was

the alleged at-fault driver. But, as held above, Johnson properly was dismissed from the

matter for Plaintiffs’ failure to serve him timely under Rule 4(h). And as the record

demonstrates, the Plaintiffs’ summons was returned as “unclaimed.” So, because the

returned summons failed to state “‘[n]ot to be found in my county,’ or words to that effect,”

Plaintiffs cannot circumvent Tennessee’s general bar on direct actions. And in light of this

Court’s articulation in Zurich, I cannot find such a result repugnant to Mississippi’s deeply

ingrained public policies—considering especially Mississippi’s inferior interest in this case.

See Zurich, 920 So. 2d at 437.

¶69. The majority, however, finds otherwise. Instead, it holds that, because Mississippi’s

general rule allowing direct actions against UIM carriers is similar to Tennessee’s exception,

Plaintiffs’ direct action is permitted. (Maj. Op. ¶¶ 33-36) (emphasis added). I find this

conclusion untenable, as it ignores the plain language of Section 56-7-1206(d). Section 56-7-

1206(d) is clear and should be applied as written. Again, Johnson properly was dismissed

because Plaintiffs failed to serve him timely under Rule 4(h). The Plaintiffs’ summons was

returned as “unclaimed.” Therefore, Plaintiffs cannot pursue a direct action against Church

Mutual because the returned summons failed to state “‘[n]ot to be found in my county,’ or

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words to that effect[.]” See Liput, 405 S.W. 3d at 675. As such, I would affirm the circuit

court’s order granting Church Mutual summary judgment and dismissing without prejudice

Plaintiffs’ contractual claims.

CONCLUSION

¶70. In sum, this interlocutory appeal stemmed from two orders issued by the circuit

court—one dismissing Johnson under Rule 4(h), the other holding that Tennessee substantive

law governed as to a majority of the parties’ claims and defenses. Upon review, I would

affirm the circuit court’s orders in both respects, including its application of Mississippi’s

Rules of the Road to determine fault. Moreover, I would affirm the circuit court’s grant of

summary judgment to Church Mutual, as that judgment was premised upon the circuit court’s

previous orders, which are the crux of this appeal. As a result, I respectfully concur in part

and dissent in part with the judgment.

WALLER, C.J., AND KITCHENS, P.J., JOIN THIS OPINION.

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