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

IN THE UNITED STATES DISTRICT COURT


FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JOHN MOSLEY, Individually and
CLINTON BODY SHOP, INC.; and
DANIEL MOSLEY, Individually and
CLINTON BODY SHOP OF RICHLAND, INC.
v.

PLAINTIFFS

CAUSE NO. 3:13CV161-LG-JCG

GEICO INSURANCE COMPANY;


PROGRESSIVE INSURANCE COMPANY;
DIRECT GENERAL INSURANCE COMPANY;
JOHN DOES 1-5; JOHN DOE
CORPORATIONS 1-5

DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING


DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT
BEFORE THE COURT are the Motion [198] for Partial Summary Judgment
and Motion [451] for Summary Judgment filed by Defendant Progressive Insurance
Company, the Motion [445] for Summary Judgment filed by Defendant Direct
General Insurance Company, and the Motion [479] for Summary Judgment filed by
Defendant GEICO Insurance Company.1 Plaintiffs John Mosley, individually, and
Clinton Body Shop, Inc., and Daniel Mosley, individually, and Clinton Body Shop of
Richland, Inc., have responded in opposition to each of the Motions, and the
defendants have filed replies. The Court has reviewed the applicable law and the
parties submissions, including all of the evidence submitted with respect to the

Plaintiffs named Progressive Insurance Company and GEICO Insurance


Company as defendants, but those are not entities. The various Progressive and
GEICO entities who are licensed to do business in Mississippi responded to the
Complaint, and the Court will hereafter refer to them simply as Progressive and
GEICO.

Case 3:13-cv-00161-LG-JCG Document 709 Filed 12/16/14 Page 2 of 47

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


the opinion of the Court that the defendants Motions for Summary Judgment
should be granted.
BACKGROUND
Plaintiffs are two automobile repair shops, Clinton Body Shop, Inc. and
Clinton Body Shop of Richland, Inc. (hereinafter Clinton Body Shop and Clinton
Body Shop of Richland or collectively, the plaintiff repair shops); John Mosley;
and Daniel Mosley. John Mosley and Daniel Mosley are the owners, Presidents,
and Chief Executive Officers of Clinton Body Shop and Clinton Body Shop of
Richland, respectively. The plaintiffs are in the business of repairing motor
vehicles that have been damaged in collisions. Defendants are insurance companies
that provide automobile insurance coverage to policyholders. In essence, this action
alleges that the defendant insurance companies have refused to reimburse the
plaintiffs in full for repairs that the plaintiffs completed on their insureds vehicles.
According to their Second Amended Complaint (hereinafter the Complaint),
during the past several decades, the plaintiffs have provided automobile repair
services to customers who are the defendants policyholders. (2d Am. Compl., ECF
No. 25). The facts, as set forth in the Complaint, allege that the defendant
insurance companies have refused to pay the plaintiffs for work that is necessary to
repair policyholders automobiles to their pre-collision condition. The Complaint
alleges that since approximately 1980, the defendants have embarked upon a
scheme and design calculated to breach their obligations and duties . . . to their
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insureds and the plaintiffs to pay ordinary . . . and customary charges for repairs.
(Id. at 7 (14)).
The Complaint states that there are national collision repair estimating
databases that provide specifications regarding parts, labor, and costs for the types
of repairs that are performed by automobile repair shops such as the plaintiffs. The
Complaint asserts that these databases are accepted within the automobile repair
industry as standard and authoritative, and that the defendant insurance
companies have acknowledged that those databases are acceptable throughout the
industry. (Id. at 7-8 (15-21)). However, the plaintiffs contend, the defendants
have nevertheless refused to reimburse the plaintiffs for certain repairs, even
though the plaintiffs based their estimates on those same databases. The
Complaint alleges that the defendants have failed and/or intentionally refused to
compensate plaintiffs for selected necessary, ordinary and customary repairs and
materials used, and have done so despite the fact that all costs and procedures are
standard and necessary pursuant to the industry-accepted estimating systems.
(Id. at 9 (24)).
The plaintiffs further allege that the defendants have engaged in a course of
conduct designed to harass, annoy, and manipulate the plaintiffs business and
business practices; they have interfered with the plaintiffs contracts with their
customers; they have made defamatory and slanderous statements about the
plaintiffs businesses; and they have otherwise injured the plaintiffs good will and
caused loss of economic opportunities. (Id. at 10-11 (33-36)).
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The Complaint states the following claims for relief:


Count One: Contracts vs. Agreements and Defendants
Various Breaches of Covenants of Good Faith and Fair
Dealing
Count Two: Tortious Interference with Contract and
Business Relationship
Count Three: Interference with Prospective Business
Advantage
Count Four: Violations of Mississippi Code Ann. 83-11501
Count Five: Business Defamation
Count Six: Constructive Trust and Conversion
Count Seven: Unjust Enrichment
Count Eight: Business Oppression
Count Nine: Intentional and Negligent Infliction of
Emotional Distress
Count Ten: Quasi-Estoppel
(Id. at 11-19 (37-68)). The plaintiffs seek an award of compensatory, statutory,
and punitive damages, interest, attorneys fees, and litigation expenses. (Id. at 2021 (69)).
The defendant insurance companies move for summary judgment as to all of
the plaintiffs claims. There is no dispute that Mississippi law applies to this
diversity action.2

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


Consent Decree between the United States Department of Justice and associations
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LEGAL STANDARD
Summary judgment is appropriate when, viewing the evidence in the light
most favorable to the nonmoving party, no genuine issue of material fact exists, and
the moving party is entitled to judgment as a matter of law. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-24 (1986); see also Fed. R. Civ. P. 56(c). A party seeking
summary judgment bears the initial burden of identifying those portions of the
pleadings and discovery on file, together with any affidavits, which it believes
demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at
325. Once the movant carries its burden, the burden shifts to the non-movant to
show that summary judgment should not be granted. Id. at 324-25. The
non-moving party may not rest upon mere allegations or denials in its pleadings,
but must set forth specific facts showing the existence of a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986). This requires the
party opposing summary judgment to identify specific evidence in the record and to

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


Decree, 2d Am. Compl. Ex. 1, ECF No. 25-1). It is not clear whether the plaintiffs
include this information as general background, or whether they allege that the
defendants are somehow in violation of the Consent Decree. (For example, in Count
5 of the Complaint, which alleges defamation, the plaintiffs assert that the
defendants statements violate the letter and spirit of the 1963 Consent Decree
and public policy standards.) (2d Am. Compl. at 15-16 (52)). If the plaintiffs are
attempting to allege claims under the Consent Decree, those claims are dismissed
because the plaintiffs have not demonstrated how they would have standing to
enforce the Consent Decree, or that any of the defendants were parties to that
litigation or are otherwise bound by the Consent Decree. Moreover, the Consent
Decree was entered by the United States District Court for the Southern District of
New York, and this Court would not have jurisdiction to enforce it.
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articulate the precise manner in which that evidence supports his or her claim.
Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Forsyth v.
Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994)). Rule
56 does not impose upon the district court a duty to sift through the record in search
of evidence to support a partys opposition to summary judgment. Id. (quoting
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 & n. 7 (5th Cir. 1992), cert.
denied, 506 U.S. 832 (1992)).
DISCUSSION
As an initial matter, the Court notes that each defendant has moved for
summary judgment on all of the plaintiffs claims. The defendants arguments in
support of their Motions for Summary Judgment are substantially similar; likewise,
the plaintiffs responses to the respective Motions for Summary Judgment are
identical in many respects. Accordingly, the Court will address many of the claims
without distinguishing between the defendants. Where necessary, the Court will
distinguish between the parties arguments and the evidence submitted in support
of their pleadings.3
I. Breach of the Covenant of Good Faith and Fair Dealing
Count One of the Complaint alleges that the defendants have breached the
implied covenant of good faith and fair dealing. The plaintiffs assert that the

Additionally, for the sake of brevity, where the briefs are substantially the
same, the Court will cite only to one defendants brief, or one of the plaintiffs
responses, as representative of the arguments on an issue, instead of listing
citations to multiple briefs that contain the same substantive information.
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defendants are subject to the covenant by virtue of their special relationship with
the plaintiffs. (2d Am. Compl. 12 (40)). Specifically, they claim that the
defendants have devised hybrid instruments called agreements (and other
nomenclature) which allow them to force upon the plaintiffs all of the indicia of a
contract, but which do not provide the plaintiffs with the protections of a contract.
(Id. at 11 (38)). They claim that [w]here these agreements are deemed by the
court to be contracts, they are ill-gotten and oppressive. (Id. at 11-12 (39)). The
defendants have moved for summary judgment on the basis that there is no
contractual relationship between the plaintiffs and the insurance companies.
The implied covenant of good faith and fair dealing holds that neither party
will do anything which injures the right of the other to receive the benefits of the
agreement. Cothern v. Vickers, Inc., 759 So. 2d 1241, 1248 (Miss. 2000). This
covenant is contained in all contracts. See Cenac v. Murry, 609 So. 2d 1257, 1272
(Miss. 1992) (citations omitted). However, under Mississippi law, the implied
covenant operates only when there is already an existing contract. James v.
Chase Manhattan Bank, 173 F. Supp. 2d 544, 551 (N.D. Miss. 2001) (citing Cothern,
759 So. 2d at 1248). Thus, to state a claim for a breach of the implied covenant, the
plaintiffs must demonstrate the existence of a contract with the defendants.
The plaintiffs have admitted that there is no express or written contract
between them and the defendant insurance companies.4 Instead, they argue that

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


express contract with any defendant, and admitted during discovery that there are
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their business relationship with the defendants creates an implied or quasicontractual relationship. (See Pl. Mem. in Supp. of Resp. to Progressive Mot. for
Partial Summ. J. 4, ECF No. 248).
An implied contract is one that arises from the conduct of the parties, and a
quasi-contract rests on the equitable principle that a person shall not be allowed to
enrich himself at the expense of another. Franklin v. Franklin ex rel. Phillips, 858
So. 2d 110, 120 (Miss. 2003). In this context, the plaintiffs claim that when they
enter into a repair order contract with a customer, and the insurance company
approves of that repair order contract, an implied or quasi-contract is created
between the plaintiffs and the insurance company. They assert that the insurance
companys approval creates a relationship that gives rise to the full rights and
responsibilities of a contract created by law. (See Pl. Mem. in Supp. of Resp. to
Progressive Mot. for Partial Summ. J. 5, ECF No. 248). However, the plaintiffs
have cited no legal authority in support of this argument. They do not point to any
evidence in the record that would support a finding of an implied or quasi-contract
on the basis of the insurance companies approval of the repair contracts.5 The

no such contracts. (See Pls. Resp. to Progressives 1st Set of Requests for
Admissions 3, Affirm. of Brabec in Supp. of Progressive Mot. for Partial Summ. J.
Ex. A,, ECF No. 199-1; Pl. Resp. to Direct General 1st Request for Admissions 3,
Direct General Mot. for Summ. J. Ex. A, ECF No. 445-1; Pl. Resp. to Direct General
1st Set of Interrogatories, Interr. No. 6, Direct General Mot. for Summ. J. Ex. G,
ECF No. 445-7; Rule 30(b)(6) Dep. 151:20152:6, GEICO Mot. for Summ. J. Ex. 1,
ECF No. 479-1).
5

The plaintiffs arguments on this issue focus on their contention that the
Mitchell Database System is the accepted standard in the industry. However, the
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plaintiffs do not cite to any case (and the Court is not aware of any case) in which
an insurance companys approval of an automobile repair contract, or similar
contract, creates a quasi or implied contract between the insurer and the repair
shop, or any other similar insurance context in which a such a contract has been
implied.
Moreover, there are express contracts between the plaintiffs and their
customers that govern the repairs the plaintiffs are to perform. (See Rule 30(b)(6)
Dep. 159:10-19, GEICO Mot. for Summ. J. Ex. 1, ECF No. 479-1; Daniel Mosley
Dep. 178:1-8, GEICO Mot. for Summ. J. Ex. 2, ECF No. 479-2) (confirming that the
plaintiffs contracts for vehicle repairs are between the plaintiffs and their
customers). [N]o quasi-or implied-in-law contract can come into existence with
respect to a given subject matter where there exists an express contract with
respect to that subject matter. Richard Goettle, Inc. v. Tenn. Valley Auth., 600 F.
Supp. 7, 11 (N.D. Miss. 1984) (citation omitted). The plaintiffs have not explained
how the Court may create an implied contract regarding payment for repairs that
were completed pursuant to an existing contract between the plaintiffs and their
customer that expressly governed those repairs.6

information regarding compensation, labor, and materials in the database would go


to a calculation of damages, if anything, and not the question of whether there is a
contract between the parties, which must be the first determination. There is
nothing in the record to suggest that the database could create a contractual
relationship between the plaintiffs and the defendants.
6

Of course, the agreements that obligate the defendant insurance companies


to pay for the repair work are the policies, or express contracts, between the
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It is the plaintiffs burden to establish the existence of a contract, if they are


to state a claim for breach of the implied covenant of good faith and fair dealing.
The plaintiffs have failed to point to any legal basis on which the Court could
determine that there is an implied or quasi-contract. Accordingly, the Court will
not hold that the defendants are subject to the implied covenant of good faith and
fair dealing on the theory of an implied or quasi-contract. Moreover, as the
defendant insurance companies are not parties to the express contracts between the
plaintiffs and their customers, they are not subject to the implied covenant with
respect to those contracts. See Cothern, 759 So. 2d at 1249 (With no existing
contractual obligation, there can be no implied covenant). Defendants are
therefore entitled to summary judgment on this claim.
Finally, the Complaint does not state a claim of breach of contract, but in
their briefing, the plaintiffs argue the defendants have breached an implied
contract between the defendants and the plaintiffs. (See, e.g. Pl. Mem. in Supp. of
Resp. to Progressive Mot. for Partial Summ. J. 4-7, ECF No. 248). The Mississippi
Supreme Court has held that a plaintiff asserting any breach of contract claim has
the burden to prove, by a preponderance of the evidence, (1) the existence of a valid
and binding contract; and (2) that the defendant has broken or breached it. Bus.
Commcns, Inc. v. Banks, 90 So. 3d 1221, 1224 (Miss. 2012) (holding that monetary
damages are a remedy for breach of contract, not an element of the claim). As set

defendants and their policyholders.


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forth above, the plaintiffs have admitted that there is no express or written contract
between them and any of the defendant insurance companies, and they have not
provided a legal basis on which the Court may find an implied or quasi-contract.
Thus, the defendants are also entitled to summary judgment on the plaintiffs
breach of contract claim, to the extent one is alleged.
II. Unjust Enrichment
Count 7 of the plaintiffs Complaint alleges unjust enrichment. The plaintiffs
assert that by failing to make full payments for the repairs completed by the
plaintiff repair shops, the defendants have obtained or retained money that, in
equity and good conscience, rightfully belongs to plaintiffs and wrongfully enriches
the defendants. (2d Am. Compl. 17 (61), ECF No. 25).
The doctrine of unjust enrichment is based on a promise, implied in law,
that one will pay a person what he is entitled to according to equity and good
conscience. 1704 21st Ave., Ltd. v. City of Gulfport, 988 So. 2d 412, 416 (Miss. Ct.
App. 2008). To prevent unjust enrichment, the law creates a quasi-contract based
upon the equitable principle that a person shall not be allowed to enrich himself
unjustly at the expense of another. Id.; Koval v. Koval, 576 So. 2d 134, 137 (Miss.
1991) (citation omitted). Unjust enrichment is only available where there is no
legal contract. Powell v. Campbell, 912 So. 2d 978, 982 (14) (Miss. 2005).
Additionally, this Court has recognized that unjust enrichment is considered to be a
remedy, rather than an independent theory of recovery. See Cole v. Chevron USA,
Inc., 554 F. Supp. 2d 655, 671 (S.D. Miss. 2007) (citing Coleman v. Conseco, Inc.,
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238 F. Supp. 2d 804, 813 (S.D. Miss. 2002)); see also Estate of Johnson v. Adkins,
513 So. 2d 922, 926 (Miss. 1987).
The plaintiffs allegations regarding unjust enrichment are based on their
theory that they have implied or quasi-contracts with the defendant insurance
companies. In response to the Motions for Summary Judgment, the plaintiffs set
forth the same arguments about implied and quasi-contracts that they assert in
support of their claim of breach of the covenant of good faith and fair dealing. (Pl.
Mem. in Supp. of Resp. to GEICO Mot. for Summ. J. 22-24, ECF No. 579). As set
forth above, the plaintiffs have not established that they have an implied contract
with the defendants, and do not provide a legal basis on which the Court could
determine that a quasi-contract exists.
Additionally, the plaintiffs assert that if the defendant[s] have not paid
Plaintiff[s] a reasonable amount for services to the insured, then defendant[s] have
been unjustly enriched. (Id. at 25). However, they cite no authority for that
conclusion. The plaintiffs do not cite any case in which a court has held that an
insurance company was unjustly enriched because it failed to pay in full the charges
incurred by an insured at a repair shop (or any analogous context), and the Court is
not aware of one.
Finally, the plaintiffs also argue that the determination of damages under a
contract is a fact question for the jury. (Id. at 24-25). That may be true, but as set
forth above, the plaintiffs do not have a contract with the defendants, and the Court
will not reach the question of damages where the plaintiffs do not have a legally
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viable claim. The plaintiffs have not demonstrated a legal basis on which the Court
could impose the doctrine of unjust enrichment. Summary judgment will be
granted in favor of the defendants on this claim.
III. Conversion and Constructive Trust
Count 6 of the Complaint states a claim of constructive trust and
conversion. (2d Am. Compl. 16 (53-56), ECF No. 25). The Complaint alleges
that the defendants are wrongfully holding in their possession funds that belong to
the plaintiffs in constructive trust. Plaintiffs assert that, [o]n information and
belief, a pool of funds garnered from premiums paid by plaintiffs customers and
the consuming public exists within the possession and control of the defendants.
(Id. (54)). They allege that these funds are held for the purpose of paying
legitimate repair charges incurred by insureds, and because the defendants have
failed to pay for such charges on behalf of the plaintiffs customers, those funds
rightfully belong to the plaintiffs. Count 6 further alleges that the defendants
actions amount to a conversion of plaintiffs monies, which creates a constructive
trust for the benefit of the plaintiffs, and that therefore they are entitled to a
judgment in quantum meruit or restitution for the wrongfully withheld funds. (Id.
(56)).
Conversion is an intentional tort recognized by Mississippi law, while a
constructive trust is an equitable remedy imposed where necessary to prevent
unjust enrichment. They are not one and the same claim.
Conversion
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To establish the tort of conversion in Mississippi, there must be proof of a


wrongful possession, or the exercise of a dominion in exclusion or defiance of the
owners right, or of an unauthorized and injurious use, or of a wrongful detention
after demand. Cmty. Bank, Ellisville, Miss. v. Courtney, 884 So. 2d 767, 772-73
(10) (Miss. 2004) (citation omitted) (emphasis in original). A plaintiff alleging
conversion must carry the burden to show that he owned or had a right to possess
property that was the subject of an unauthorized taking or the unauthorized
exercise of control by the defendant. Lyons v. Misskelly, 759 F. Supp. 324, 327 (S.D.
Miss. 1990) (citing LaBarre v. Gold, 520 So. 2d 1327, 1330 (Miss. 1987); Masonite
Corp. v. Williamson, 404 So. 2d 565, 567 (Miss. 1981)).
The Mississippi Supreme Court has held that [i]t is elementary that
ownership is an essential element of conversion. Courtney, 884 So. 2d at 772 (10).
Federal and state courts in Mississippi have enforced the requirement that the
plaintiff must show that he owns the funds or property at issue. See Evans v. Miss.
Dept of Human Servs., 36 So. 3d 463, 477 (Miss. Ct. App. 2010) (To succeed on a
conversion claim, [the plaintiff] must show he owned the funds at issue.); Estate of
Martin Luther King Jr., Inc. v. Ballou, 856 F. Supp. 2d 860, 866 (S.D. Miss. 2012),
affd sub nom. Estate of King v. Ballou, 544 F. Appx 280 (5th Cir. 2013) (same).
The plaintiffs have not demonstrated that they are the owners of any portion
of the pool of funds that is the subject of their conversion claim. According to the
plaintiffs own description, those funds were paid by policyholders directly to the

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insurance companies.7 The plaintiffs do not claim that they were ever in possession
of the funds. They point to no evidence that they are the true owners of the funds,
which is essential to a claim of conversion under Mississippi law. The only
argument the plaintiffs put forth regarding their ownership or interest in the funds
is that Plaintiffs have a claim of ownership to the funds specifically set aside for
those repairs as much as does the Defendant. (Pl. Mem. in Supp. of Resp. to
Progressive Mot. for Partial Summ. J., 10-11, ECF No. 248). However, the plaintiffs
offer no legal support for this conclusion. As the plaintiffs have not presented any
evidence of ownership of the allegedly converted funds, or cited any statutory or
case law on which the Court could find that they had an ownership interest, the
defendants are entitled to summary judgment on this claim. See Courtney, 884 So.
2d at 773 (10) (dismissing conversion claims with respect to property that plaintiff
did not own, stating, [T]here is no conversion until the title of the lawful owner
is made known and resisted or the purchaser exercises dominion over the property
by use, sale, or otherwise.) (citation omitted) (emphasis in original).
Constructive Trust
A constructive trust is a fiction of equity created for the purpose of

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


motion on the conversion claim, before the discovery period had closed, the plaintiffs
noted that they had scheduled the defendants deposition under Rule 30(b)(6) to
inquire into specific areas about this policy and procedure is [sic] implemented in
order to pay claims. (Pl. Mem. in Supp. of Resp. to Progressive Mot. for Partial
Summ. J. 10 n.9, ECF No. 248). However, the plaintiffs subsequent briefing does
not reference any evidence obtained during those depositions to support their claim
of conversion.
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preventing unjust enrichment by one who holds legal title to property which, under
principles of justice and fairness, rightfully belongs to another. McNeil v. Hester,
753 So. 2d 1057, 1064 (Miss. 2000) (citations omitted). The Mississippi Supreme
Court has defined a constructive trust as:
one that arises by operation of law against one who, by
fraud, actual or constructive, by duress or abuse of
confidence, by commission of wrong, or by any form of
unconscionable conduct, artifice, concealment, or
questionable means, or who in any way against equity
and good conscience, either has obtained or holds the
legal right to property which he ought not, in equity and
good conscience, hold and enjoy.
Id. (citing Saulsberry v. Saulsberry, 78 So. 2d 758, 760 (1955) (additional citations
omitted)).
In order for a court to create a constructive trust, the facts must show
substantial overreaching or fraud, and the proof must be clear and convincing. Id.
(citing Planters Bank & Trust Co. v. Sklar, 555 So. 2d 1024, 1034 (Miss. 1990)); In
re Estate of Horrigan, 757 So. 2d 165, 170 (Miss. 1999). The Mississippi Supreme
Court has also stated that [i]t is necessary only to establish such conduct and bad
faith as would shock the conscience of the court. Griffin v. Armana, 687 So. 2d
1188, 1195 (Miss. 1996) (citation omitted).
Additionally, this Court has recognized that, in order to impose a
constructive trust, the Mississippi Supreme Court has generally required that a
confidential relationship be present and abuse of that confidence must have
occurred. Eisenberg v. Grand Bank for Sav., FSB, 207 F. Supp. 2d 553, 557-58 (S.D.
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Miss. 2002), affd, 70 F. Appx 765 (5th Cir. 2003); see also Cole, 554 F. Supp. 2d at
672 ([I]n order to impose a constructive trust under Mississippi law, a court must
find abuse of a confidential relationship resulting in unjust enrichment.). While
any transaction may provide an appropriate setting for creating a constructive
trust, a confidential relationship is a necessary element. Cole, 554 F. Supp. 2d at
672 (quoting Alvarez v. Coleman, 642 So.2d 361, 367 (Miss. 1994) and Braddock
Law Firm, PLLC v. Becnel, 949 So. 2d 38, 48 (Miss. Ct. App. 2006) (internal
quotations and punctuation omitted)).
In this case, the plaintiffs claim that they are entitled to a constructive trust
is premised on their conversion claim. Their Complaint alleges: These actions by
defendants amount to a conversion of plaintiffs monies, which creates a
constructive trust for the benefit of the plaintiffs. (2d Am. Compl. 16 (56), ECF
No. 25). As set forth above, the plaintiffs conversion claim fails as a matter of law.
Accordingly, a constructive trust will not be created as a remedy for conversion.
Additionally, the plaintiffs allegations of unjust enrichment are also dismissed, as
discussed above. The plaintiffs have not alleged that they were in a confidential
relationship with the defendants, and they have not set forth clear and convincing
evidence of substantial overreaching or fraud on the part of the defendants.
Accordingly, the defendants are entitled to summary judgment on the plaintiffs
claim that they are entitled to a constructive trust.
IV. Section 83-11-501 of the Mississippi Code
Count 4 of the Complaint alleges that the defendants have violated Miss.
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Code Ann. 83-11-501. That statute provides:


No insurer may require as a condition of payment of a
claim that repairs to a damaged vehicle, including glass
repairs or replacements, must be made by a particular
contractor or motor vehicle repair shop; provided,
however, the most an insurer shall be required to pay for
the repair of the vehicle or repair or replacement of the
glass is the lowest amount that such vehicle or glass could
be properly and fairly repaired or replaced by a contractor
or repair shop within a reasonable geographical or trade
area of the insured.
Miss. Code. Ann. 83-11-501. The Complaint alleges that the defendants have
violated 83-11-501 because they have refused to pay for necessary, proper, and
fair repairs. (2d Am. Compl. 14-15 (49), ECF No. 25).
The defendants have moved for summary judgment on the grounds that there
is no private right of action under this statute, and that, in any event, they have not
violated the statute. The parties arguments regarding 83-11-501 focus on this
Courts decision in Christmon v. Allstate Insurance Company, 82 F. Supp. 2d 612
(S.D. Miss. 2000). In Christmon, the plaintiff alleged that Allstate Insurance
Company violated 83-11-501 because it maintained a list of pre-approved
automobile repair shops, which it recommended to its insureds. The Court granted
summary judgment in favor of Allstate, finding that Allstate had not required
insureds to have repairs made at certain repair shops. The Christmon court did not
decide the issue of whether 83-11-501 provides for a private right of action.8

Rather, the court noted that it assumed, for purposes of the motion, that
such an action could be maintained.
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Likewise, this Court concludes the defendant insurance companies have not
violated 83-11-501 because they have not required that their insureds repairs be
made at particular shops. As the Christmon court noted, the first principle of
statutory application and interpretation is that when the language of a statute is
unambiguous, the Court must apply the statute according to its plain meaning.
Christmon, 82 F. Supp. 2d at 615 (citing Harrison County Sch. Dist. v. Long Beach
Sch. Dist., 700 So. 2d 286, 288-89 (Miss. 1997)). Here, [t]here is nothing about the
language of 83-11-501 that is ambiguous. Id.
The plain meaning of the language of this statute prohibits an insurance
company from conditioning its payment for repairs on the particular repair shop
that performs the work. It provides that [n]o insurer may require as a condition of
payment of a claim that repairs to a damaged vehicle . . . must be made by a
particular contractor or motor vehicle repair shop. Miss. Code. Ann. 83-11-501.
In this case, the plaintiffs allege that the defendant insurance companies have
refused to pay for certain repairs. But they have not presented evidence that the
defendants refused to pay claims because the repairs were performed by the
plaintiff repair shops in particular, instead of by some other repair shop, which is
what is prohibited by 83-11-501. The plaintiffs point to their depositions, for
example, in which they testified that Progressive refused to pay for necessary
repairs for customers vehicles, but this does not prove that Progressives refusal to
pay was because it conditioned payment on the repairs being made by a particular

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


whether 83-11-501 provides for a private right of action and the Court does not
make any determination as to that issue the plaintiffs have not presented
sufficient evidence to overcome summary judgment on this claim. The defendants
are entitled to summary judgment on this claim.
V. Tortious Interference with Contract; Tortious Interference with
Business Relations; Interference with Prospective Advantage
Count Two of the Complaint alleges claims of tortious interference with
contracts and business relations. The plaintiffs claim that the defendants have
negligently, intentionally, tortiously, or maliciously interfered with the plaintiffs
business relationships with the defendants insureds, and sought to force plaintiffs
to breach the actual, implied and/or quasi-contracts . . . between plaintiffs and their
customers. (2d Am. Compl. 12 (41), ECF No. 25). They assert that the

The plaintiffs cite portions of Daniel Mosleys deposition, but it consists of


lengthy questioning about what Mosley believed steering to be, and does not
include evidence that the defendants required policyholders to have repairs made at
particular body shops. (D. Mosley Dep. 39, 45, 46, Pl. Mem. in Supp. of Resp. to
GEICO Mot. for Summ. J. Ex. K, ECF No. 579-11.) Plaintiffs also cite John
Mosleys deposition testimony that Progressive refused to pay for repairs for a
particular customer. (J. Mosley Dep. 19:19-21, Pl. Mem. in Supp. of Resp. to
Progressive Mot. for Partial Summ. J. Ex. 1, ECF No. 248-1). However, it is unclear
why Progressive refused to pay for those procedures; for example, he testified that
the customer stated that Progressive wanted the vehicle to go to a network shop,
but also that another individual told him that Progressive was not going to pay for
the procedures until this litigation was finished. (Id. at 19:15-17, 20:6-8). This
testimony is inadmissible hearsay, and the plaintiffs have not submitted an
affidavit or other testimony from the customer. Likewise, the plaintiffs do not
provide evidence of any specific instance in which GEICO or Direct General refused
to make payments because their policyholders were not using a particular body
shop.
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defendants have placed the plaintiffs in the untenable position of either (1)
acquiescing to the defendants dictates that the plaintiffs not adhere to the . . .
processes . . . outlined in the databases, which could cause diminution in value of
those vehicles, or (2) repairing their customers vehicles in accordance to the
industry databases without full compensation by the defendants. (Id. at 12-13
(43)). Therefore, the Complaint alleges, the defendants have improperly inserted
themselves into the plaintiffs business relationships with the insureds, their
customers. (Id. at 13 (44)).
Despite the manner in which these claims are stated in the Complaint, the
tort of interference with a contract is a different cause of action than the tort of
interference with business relations. See Cenac, 609 So. 2d at 1268. Interference
with a contract occurs where a wrongdoer intentionally and improperly interferes
with the performance of a contract between another and a third person by inducing
or otherwise causing the third person not to perform the contract. Id. (quoting
Liston v. Home Ins. Co., 659 F. Supp. 276, 280 (S.D. Miss. 1986)). To properly state
a claim of this tort, the plaintiff must prove the existence of a valid and enforceable
contract between it and another party. Id. at 1269 (citing Mid-Continent Tel. Corp.
v. Home Tel. Co., 319 F. Supp. 1176, 1199-1200 (N.D. Miss. 1970)). See also Par
Indus., Inc. v. Target Container Co., 708 So. 2d 44, 48 (Miss. 1998) (citation
omitted). The defendant who is alleged to have tortiously interfered with the
contract must be a non-party to that contract. Cenac, 609 So. 2d at 1269 (citing

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Liston, 659 F. Supp. at 280). In addition, the plaintiff must prove that the contract
would have been performed but for the alleged interference. Par Indus., 708 So. 2d
at 48.
The tort of interference with business relations is also known as interference
with prospective business advantage, which is alleged as a separate claim in the
plaintiffs Complaint.10 (See Count 3, 2d Am. Compl. 13 (45-47), ECF No. 25).
Tortious interference with business relations occurs when a person unlawfully
diverts prospective customers away from ones business. Par Indus., 708 So. 2d at
48 (citing Cenac, 609 So. 2d at 1268-69). A cause of action exists where one
engages in some act with a malicious intent to interfere and injure the business of
another, and injury does in fact result. Id. The remedy for this tort is damages,
and the plaintiff must show (1) a loss, and (2) that defendants conduct caused the
loss. Id.
Under Mississippi law, the elements that a plaintiff must demonstrate to
prove tortious interference with a contract are the same as tortious interference
with business relations. They are:
(1) that the acts were intentional and willful;

10

The Complaint alleges the same underlying facts to support the claims of
tortious interference with business relations and interference with prospective
business advantage. (See 2d Am. Compl. 13 (46), ECF No. 25). The plaintiffs do
not distinguish between these claims in response to the Motions for Summary
Judgment. Because these claims are the same under Mississippi law, and the
parties have treated them as such in their briefing, the Court will address them
together herein as tortious interference with business relations.
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(2) that they were calculated to cause damage to the


plaintiffs in their lawful business;
(3) that they were done with the unlawful purpose of
causing damage and loss, without right or justifiable
cause on the part of the defendant (which constitutes
malice); and
(4) that actual damage and loss resulted.
Par Indus., 708 So. 2d at 48 (citing Cenac, 609 So.2d at 1268-69) (additional citation
omitted).
The parties summary judgment arguments with respect to this claim differ
in some respects, and therefore the Court will address each defendant separately.
Direct General
Defendant Direct General asserts that the plaintiffs have failed to show that
it forced the plaintiffs to breach any contracts or to lose any potential customers or
business. In response to Direct Generals Motion for Summary Judgment, the
plaintiffs essentially restate, almost verbatim, the general allegations set forth in
Counts 2 and 3 of their Complaint. They do not address the elements of the torts
they allege Direct General committed. Moreover, they do not point to any evidence,
or specify any contract or customer, that relates to these claims. Instead, they
make the unsupported assertion that unspecified Direct General employees have
made various statements to the plaintiffs customers. (Pl. Mem. in Supp. of Resp. to
Direct General Mot. for Summ. J. 9, ECF No. 580). However, the plaintiffs do not
cite to anything in the record to support this statement. They do not provide any
evidence of any existing or potential customer who went to a different repair shop
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because of some action by Direct General. As the plaintiffs have not presented any
evidence that could be submitted to a jury with respect to these allegations,
summary judgment will be granted in favor of Direct General on the plaintiffs
claims of tortious interference with a contract, tortious interference with business
relations, and interference with prospective business advantage.
GEICO
Defendant GEICO moves for summary judgment on the grounds that the
plaintiffs have not produced any admissible evidence that it harmed any of
plaintiffs existing contracts or interfered with any prospective customers. GEICO
further asserts that the plaintiffs do not have any evidence that it engaged in any
intentional act to cause damage to the plaintiffs businesses, or that the plaintiffs
suffered any actual damage or loss as a result of an action by GEICO.
In response to GEICOs Motion for Summary Judgment, the plaintiffs put
forth the same, near-verbatim recitation of the Complaint that they asserted in
response to Direct Generals Motion for Summary Judgment. The plaintiffs also
make the non-specific statement that GEICO employees made various statements
to the plaintiffs customers, but cite to nothing in the record as evidence that these
statements were made. They do not point to any contract that GEICO caused not to
be performed, or even any specific customer that GEICO attempted to dissuade
from having repair work completed by the plaintiffs.
The plaintiffs do assert, however, that the GEICO defendants undertake a
scheme whereby they . . . attempt to get their insureds to take their vehicles to a
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network (or ARX) shop. (Pl. Mem. in Supp. of Resp. to GEICO Mot. for Summ. J.
14, ECF No. 579).11 They claim that GEICO attempts to convince its policyholder to
allow the network or ARx shop to repair his or her vehicle in a sales pitch which
involves mis-information and slander against the insureds preferred shop. (Id. at
14-15). As evidence of this scheme, the plaintiffs assert: This process is adduced
from the testimony of Geicos 30(b)(6) deponent, Kevin Rustick, which is attached
as an exhibit to their response. (Id. at 15).
The Court has reviewed Mr. Rusticks testimony submitted by the plaintiffs,
but it does not establish that GEICO could be liable for tortious interference with
business relations. Mr. Rusticks testimony consisted largely of the following:
A. [O]ur position is the same. If you go to Clinton Body
Shop . . . sure, we work with them on a regular basis. If
you have an ARX appointment at our shop where it was
already explained to you, we would not explain the
benefits of the ARX program? Of . . . course we would.
But if the customer says, I want to go somewhere else, . . .
we have no issue with that. In fact, we welcome . . .
...
If the customer says they want to go to another facility,
we welcome that going to another facility, yes.
Q. [ ] But prior to the . . . customer making that election,
do you tell them possible benefits from being at the
network shop?
....
If were referring to the ARX setting, then, yes. If prior to
a customer explaining to us that they have a preference of

11

GEICO has explained in briefing that its referral program is called the
Auto Repair Xpress Program (also known as ARx).
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a body shop, we . . . do discuss the benefits of the ARX


program.
Q. [ ] You discuss with them the issues of warranties at
those ARX shops?
A. Sure. The benefits of the program, yes.
Q. Do you talk to them about how the agents are more
accessible at the ARX shop?
....
A. That is a benefit of the program, yes maam.
Q. Do you tell them that they can get the work done more
quickly at the ARX shop?
....
A. We . . . do mention that cycle time as a priority in . . .
the ARX setting.
....
Q. When you are talking to your insured about the
benefits of . . . an ARX shop, does . . . your adjusters have
at their disposal similar statistics for the independent
shop? . . . . Do you give them information about the
independent shop?
A. No.
(Rustick Dep. 107:4-109:1, 110:21-111:7, Pl. Mem. in Supp. of Resp. to GEICO Mot.
for Summ. J. Ex. J, ECF No. 579-10).
The process described by Mr. Rustick does not amount to evidence that could
establish the tort of interference with business relations. This does not
demonstrate some unlawful purpose or malicious intent on the part GEICO, or that
GEICOs program is calculated to cause damage and loss to the plaintiffs, which is
what is required under Mississippi law to state such a claim. See Christmon, 82 F.
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Supp. 2d at 615-16 (finding that Allstates referral program, under which certain
repair shops were pre-approved and Allstate recommended those shops to its
policyholders, did not amount to tortious interference with business relations
because the plaintiff had no evidence that program was calculated or intended to
cause damage to his business).
Moreover, in order to prove the tort of interference with business relations,
the plaintiffs must show that actual damage and loss resulted from the defendants
conduct. The plaintiffs assert that the Geico defendants knew or should have
known that such representations . . . would lead the hearer to believe the
statements to be true . . . and take actions based on such relation; to wit, taking
their vehicles to other shops. (Pl. Mem. in Supp. of Resp. to GEICO Mot. for
Summ. J. 15, ECF No. 579). This is merely a repetition of an allegation set forth in
the plaintiffs Complaint, and is the type of unsupported conclusion that is
insufficient to overcome summary judgment. The plaintiffs do not point to any
actual evidence that they incurred damage or economic loss as a result of GEICOs
ARx program.12

12

The plaintiffs do not point to this particular testimony, but in reviewing the
evidence submitted by GEICO in support of summary judgment, the Court noted
that Plaintiff Daniel Mosley testified about a customer named Ms. Suarez who
was a GEICO policyholder and took her vehicle to a different repair shop. Mr.
Mosley testified that he believe[d] that her decision was a result of what GEICO
told her regarding a warranty and guarantee of repairs. (D. Mosley Dep. 155:23156:5, GEICO Mot. for Summ. J. Ex. 2, ECF No. 479-2). However, Mr. Mosley also
stated that he did not know all of the specifics of Ms. Suarezs conversation with
GEICO, or whether that was all of it in terms of why she opted to take her vehicle
elsewhere. (Id. at 154:18-155:22). There is no evidence that the plaintiffs had a
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The plaintiffs have failed to establish any of the elements of tortious


interference with a contract or tortious interference with business relations with
respect to GEICO. Accordingly, GEICO is entitled to summary judgment on these
claims.
Progressive
Defendant Progressive has moved for summary judgment on the grounds
that the plaintiffs have not met the required elements of the tortious interference
claims. Progressive argues that it preserves its policyholders choice of where to
have vehicles repaired, that the plaintiffs have not demonstrated that Progressive
interfered with their customers, and that the plaintiffs have not demonstrated that
they suffered any injury or that Progressive acted with a willful intent to harm the
plaintiffs.13
Progressive points out in its Motion for Summary Judgment that, during the
discovery process, the plaintiffs identified six customers with whom they alleged
Progressive interfered. Progressive asserts that of those individuals, five chose to

contract with Ms. Suarez to support a tortious interference with a contract claim.
Moreover, Mr. Mosleys testimony regarding what Ms. Suarez may have told him is
inadmissible hearsay, and it does not establish that GEICO took action without
justifiable cause for an unlawful purpose of causing harm to the plaintiffs. See
Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995) (Evidence on summary judgment
may be considered to the extent not based on hearsay.) (citations omitted).
13

Progressive also asserts that it shares a qualified privilege with its


customers that bars the plaintiffs claims. Because the Court finds that the
plaintiffs have not established a prima facie claim, there is no need to reach this
issue.
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have their vehicles repaired at the plaintiffs body shop, and the sixth opted not to
have his vehicle repaired at all, but instead chose to trade in his vehicle.
(Progressive Mem. in Supp. of Mot. for Summ. J. 5-6, ECF No. 452). In support of
their Motion, Progressive has submitted information from its claim files with
respect to these individuals, as well as deposition testimony regarding their vehicle
repairs. (See Progressive Stmt. of Undisputed Facts in Supp. of Mot. for Summ. J.
Exs. J, ECF No. 537-4; Ex. K, ECF No. 537-5; Ex. L, ECF No. 463-12; Ex. M, ECF
No. 463-13; Ex. N, ECF No. 463-14; Ex. O, ECF No. 537-6; Ex. P, ECF No. 537-7;
Ex. Q, ECF No. 537-8; Ex. R, ECF No. 537-9).
In response to Progressives Motion, the plaintiffs, again, do not address the
specific elements of the alleged torts. Instead, they make a generalized argument
regarding defamation and tortious interference with business relations, and they
assert that the issue of whether Progressive acted with malice, and the question of
damages, are properly submitted to a jury. The plaintiffs do not submit any
contracts that they allege were not performed because of Progressives interference.
The plaintiffs do not respond directly to Progressives assertions and evidence
regarding the six individuals identified during discovery. However, the plaintiffs
submit deposition testimony of John Mosley and Daniel Mosley in reference to their
defamation claim, which includes some testimony regarding those individuals. For
example, John Mosley testified that customer Keith Hammitt had brought his
vehicle to one of the plaintiff repair shops, but he became aggravated when
Progressive tried to get him to take his car to a network shop. (Pl. Mem. in Supp. of
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Resp. to Progressive Mot. for Summ. J. 8, ECF No. 582). Mr. Hammitt eventually
decided to trade in his vehicle instead of having it repaired. (Id.). The plaintiffs do
not submit any documentation with respect to Mr. Hammitt, so it is not clear
whether the plaintiffs had a contract with him. As the plaintiffs have not
demonstrated that an existing contract was not performed, they cannot base a claim
of tortious interference with a contract on this testimony. Moreover, Mr. Mosleys
testimony regarding what Mr. Hammitt said about his conversations with
Progressive is hearsay. Hearsay evidence is not sufficient to overcome summary
judgment. See Fowler v. Smith, 68 F.3d 124, 126 (5th Cir. 1995) (inadmissible
hearsay evidence may not be considered on summary judgment). Finally, this
testimony does not demonstrate that Progressive acted with an unlawful purpose to
harm the plaintiffs business.
Four of the other customers identified in Progressives Motion are referenced
in the remaining deposition testimony submitted by the plaintiffs. (See Pl. Mem. in
Supp. of Resp. to Progressive Mot. For Summ J. 8-11, ECF No. 582) (discussing
customers Fred Cessna, Kendrick Ray, Elizabeth Flynn, and Rebecca Webster).
This testimony does not establish that Progressive caused any contracts between
those individuals and the plaintiffs not to be performed; instead, it confirms that
those individuals all had their cars repaired by the plaintiffs. Accordingly, the
plaintiffs testimony with respect to those customers does not establish tortious
interference with a contract or tortious interference with business relations. The
last customer identified in Progressives Motion for Summary Judgment is Candace
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Walton. The plaintiffs do not reference Ms. Walton in their response, and they do
not refute Progressives evidence that they repaired Ms. Waltons vehicle.
Accordingly, to the extent the plaintiffs claims are based on Progessives alleged
interference with Ms. Walton, they are unsupported.14
Finally, the plaintiffs point to the script that Progressive representatives
are instructed to use in communications with policyholders regarding auto repairs.
They assert that this script raises a fact question for the jury on the issue
whether Progressives statements to potential customers is an interference. (Pl.
Mem. in Supp. of Resp. to Progressive Mot. For Summ at 12).15 The Court has
reviewed what appears to be the script the plaintiffs reference, as well as other

14

The Court also notes that the plaintiffs have attached an exhibit to their
response to Progressives Motion for Summary Judgment that is titled in the record
simply as depo excerpts. (Pl. Mem. in Supp. of Resp. to Progressive Mot. for
Summ. J. Ex. 4, ECF No. 582-4). This is a 53-page document that consists of
various pages taken from what appear to be multiple depositions. There is no cover
page or anything in the document that identifies or distinguishes between
depositions. It is not referenced in the plaintiffs arguments regarding tortious
interference with business relations, but it does include some testimony regarding
an individual named Mike Strahan, who told one of the plaintiffs that they would
prefer to keep the cars away from Clinton Body Shop. (See id. at 12). The Court
has not found that the plaintiffs brief identifies Mike Strahan, and no other
evidence is presented with respect to his statements. Thus, it appears that this
testimony is inadmissible hearsay, and as the plaintiffs make no reference to it, the
Court will not address it further.
15

The plaintiffs do not attach the script to their response; nor do they point
to an exhibit number where it is located in the record. The plaintiffs assert that
Progressives Rule 30(b)(6) designee outlined the script in his deposition
testimony, but they do not attach the deposition to their response. The Court has
reviewed the portions of Progressives 30(b)(6) deposition that are in the record, but
does not find that the testimony could support the plaintiffs claims of tortious
interference. (See Excerpts from Andreoli Dep., ECF No. 537).
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materials that Progressive has produced regarding its employees communications


with policyholders. (Progressive Mem. in Supp. of Mot. for Summ. J. Ex. E, ECF
No. 537-1; Ex. F, ECF No. 537-2; Ex. G, ECF No. 537-3). These materials do not
amount to evidence of tortious interference with business relations. They
demonstrate that Progressive has directed its employees to [e]xplicitly tell
customers they can have their car repaired anywhere theyd like, and not to push a
policyholder exclusively to a network shop. (See id. Ex. E, ECF No. 537-1). The
script relied on by the plaintiffs is not evidence that Progressive has, for some
unlawful purpose, directed potential customers away from the plaintiffs businesses.
It is a rather generic list of instructions to Progressive employees about their
conversations with insureds following automobile accidents. (See id. Ex. F, ECF No.
537-2; Ex. G, ECF No. 537-3). While it does direct Progressive employees to tell
policyholders about network repair shops, that does not amount to evidence that
this document is intended to cause harm to the plaintiffs. See Christmon, 82 F.
Supp. 2d at 615-16 (finding that Allstates recommendation of network shops did
not amount to tortious interference with business relations).
The plaintiffs have failed to demonstrate that any of their contracts with
their customers were not performed because of some unlawful action on the part of
Progressive. Nor have they demonstrated that Progressive willfully and
unjustifiably caused potential customers to take their business elsewhere with the
unlawful purpose of causing damage and loss to the plaintiffs. Accordingly,
Progressive is entitled to summary judgment on the plaintiffs claims of tortious
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interference with a contract, tortious interference with business relations, and


interference with prospective business advantage.
VI. Defamation
Count 5 of the Complaint alleges a claim of business defamation based on
the same statements the defendants allegedly made to the plaintiffs customers
referenced above. The plaintiffs assert that the defendants knew or should have
known that such statements would lead the hearer to believe the statements to be
true. (2d Am. Compl. 15 (52), ECF No. 25). They claim that such fraudulent,
slanderous, and defamatory statements have caused irreparable injury to the
plaintiffs business, business reputation, and great humiliation, anguish and
emotional distress to the plaintiffs individually. (Id.).
The Court is not aware of a claim for business defamation that is
recognized under Mississippi law. Rather, the appropriate claim is one of
defamation. To establish defamation under Mississippi law, a plaintiff must prove:
(1) a false statement that has the capacity to injure the
plaintiffs reputation;
(2) an unprivileged publication, i.e., communication to a
third party;
(3) negligence or greater fault on part of publisher; and
(4) either actionability of statement irrespective of special
harm or existence of special harm caused by publication.
Speed v. Scott, 787 So. 2d 626, 631 (Miss. 2001) (citing Franklin v. Thompson, 722
So. 2d 688, 692 (Miss. 1998)). Special harm is the loss of something having

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economic or pecuniary value. Id. at 632 (citation omitted). There are certain
statements considered to be actionable per se under Mississippi law, which do not
require proof of special harm. Such statements include, inter alia, [w]ords
imputing a want of integrity or capacity, whether mental or pecuniary, in the
conduct of a profession, trade or business. Id. (citing W.T. Farley, Inc. v. Bufkin,
132 So. 86, 87 (Miss. 1931)).
The defendants have moved for summary judgment on the grounds that the
plaintiffs have failed to establish the requisite elements of this tort. The parties
arguments with respect to the defamation claim differ in certain respects, and
therefore the Court will address this claim against each defendant individually.
Direct General
Direct General argues that the plaintiffs have not put forth any admissible
evidence that Direct General made false, defamatory statements about the
plaintiffs, and therefore it is entitled to summary judgment on this claim. In
response to Direct Generals Motion, the plaintiffs submit what is basically a
recitation of their defamation claim as it is stated in their Complaint. This includes
the same generalized assertions about unnamed Direct General employees who
allegedly made statements to the plaintiffs customers regarding the repair time at
the plaintiff repair shops, the lack of a guarantee of their work, and the possibility
of running out of insurance-covered rental time. Again, the plaintiffs do not provide

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


The only document plaintiffs submit in response to Direct Generals Motion
for Summary Judgment is a statement by Jaleesa Taylor, who the plaintiffs assert
is a Direct General policyholder. The statement provides that she was told by a
Direct General adjuster that Clinton Body Shop charges outrageous and
unnecessary fees, and that she may want to review the charges and have Clinton
Body Shop checked out. (Pl. Mem. in Supp. of Resp. to Direct General Mot. for
Summ. J. Ex. 1, ECF No. 580-1). However, this statement is unsworn and does not
qualify as an affidavit or other admissible evidence on which the Court could rely in
determining summary judgment. See Fowler, 68 F.3d at 126. As the plaintiffs have
failed to put forth admissible evidence to establish the elements of defamation with
respect to Direct General, Direct General is entitled to summary judgment on this
claim.
GEICO
GEICO moves for summary judgment on the grounds that the plaintiffs have

16

The plaintiffs do include a general citation stating, See deposition


testimony of John Mosley and Daniel Mosley. (Pl. Mem. in Resp. to Direct General
Mot. for Summ. J. 12, ECF No. 580). The plaintiffs do not attach this deposition
testimony to their response to Direct Generals Motion; nor do they point to an
exhibit number or specific pages of these depositions. There are multiple exhibits in
the record that contain deposition testimony given by John Mosley and Daniel
Mosley, who both testified multiple times in this action, so it is not clear to the
Court what testimony the plaintiffs are referencing. However, the Court has
reviewed the testimony of John Mosley and Daniel Mosley that is attached to other
pleadings related to summary judgment, and does not find evidence that Direct
General made defamatory statements regarding the plaintiffs.
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not proved that it made any false, defamatory statements about the plaintiffs.
GEICO points out that the plaintiffs have not put forth any evidence regarding any
statements made by GEICO prior to the filing of their Complaint. (GEICO Mem. in
Supp. of Mot. for Summ. J. 15, ECF No. 480). GEICO submits John Mosleys
deposition testimony, in which he admitted as much. (J. Mosley Dep. 16:10-16,
GEICO Mot. For Summ. J. Ex. 3, ECF No. 479-3). GEICO also asserts that the only
evidence the plaintiffs have submitted with respect to this claim are statements
made well after this lawsuit was filed by an individual named Dicky Robertson.
GEICO maintains that Mr. Robertson is not a GEICO employee, and that his
statements are not attributable to GEICO.
In response to GEICOs Motion for Summary Judgment, the plaintiffs argue
that GEICOs defamatory statements against the Plaintiffs business are
actionable per se, and that the [a]ssessment of damages is a fact question for the
jury. (Pl. Mem. in Supp. of Resp. to GEICO Mot. for Summ. J. 18, ECF No. 579).
As evidence of GEICOs alleged defamation, the plaintiffs submit statements from
Geicos employee Dicky Robertson. (Id.). These statements consist of what
appears to be a printed page from a social media website (e.g., Facebook)
maintained by Dicky Robertson. The page includes the following statements, which
are attributed to Mr. Robertson:
Clinton Body Shop uses their personal relationships with
our Savior to advertise for business. NEVER TRUST THE
MAN THAT USES GOD TO GET MONEY BECAUSE
MOST OF THE TIME MONEY IS HIS GOD.

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CLINTON BODY SHOP has been bashing the insurance


industry in MS for decades and thus potentially
alienating insurance personnel of all fields. DO YOU
REALLY WANT TO DO BUSINESS WITH A BUSINESS
THAT ALIENATES AN ENTIRE INDUSTRY AND IS
TOO DUMB TO KNOW IT?
(Id. Ex. M, ECF No. 579-13). The plaintiffs do not respond to GEICOs assertion
that Mr. Robertson is not a GEICO employee; nor do they explain who Mr.
Robertson is, or why his statements could be attributable to GEICO. In any event,
this page from a social networking site, which contains what amount to opinions of
an individual not proven to be speaking on behalf of GEICO, is insufficient to
establish that GEICO has committed defamation.
The plaintiffs also cite to a portion of John Mosleys testimony in the Rule
30(b)(6) deposition of the plaintiffs businesses. (Id. Ex. N, ECF No. 579-14).
However, the document that the plaintiffs reference consists of Mr. Mosleys
testimony regarding the materials he reviewed to prepare for the deposition, and
confirming that he was the appropriate designee. It does not contain information
that has any bearing on the defamation claim. The plaintiffs have submitted
additional testimony by John Mosley in a separate exhibit, in which he stated:
In my opinion, its defamatory to me when when I had
customers tell me that an appraiser for Geico told them
that its going to cost more at Clinton Body Shop or that,
you know, if you take it there, its going to take longer, we
may not guarantee the work. Its putting something in
that customers mind that makes them think that Clinton
Body Shop does substandard work.
(J. Mosley Dep. 19:14-22, Pl. Mem. in Supp. of Resp. to GEICO Mot. for Summ. J.,

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Ex. I, ECF No. 579-9). This testimony does not identify any specific statement by
GEICO, and is at most general hearsay regarding what the plaintiffs customers
said, and is not admissible. Finally, the plaintiffs also point to the deposition
testimony of GEICOs Rule 30(b)(6) designee, Kevin Rustick, to argue that GEICO
cannot demonstrate that the plaintiff repair shops take longer to repair vehicles
than GEICOs network shops. However, GEICOs ability to demonstrate a
difference in the repair times is irrelevant because the plaintiffs have not proven
that GEICO made any statements regarding the length of time that the plaintiffs
take to repair vehicles.
The plaintiffs have not established the elements of defamation with respect
to GEICO. Accordingly, GEICO is entitled to summary judgment on this claim.
Progressive
Progressive has moved for summary judgment on the basis that the plaintiffs
have failed to establish the elements of defamation under Mississippi law.
Progressive points out that while the plaintiffs have testified in their depositions
about statements they allege were made by Progressive, this testimony is not
admissible to prove defamation.
In response, the plaintiffs argue that Progressives defamatory statements
are actionable per se, and that the question of damages is for a jury to determine.
They assert that John Mosley and Daniel Mosley . . . testified exhaustively about
defamatory statements made about their businesses by employees of Defendant
Progressive. (Pl. Mem. in Supp. of Resp. to Progressive Mot. for Summ. J. 7, ECF
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No. 582). The plaintiffs include several pages of quoted deposition testimony in
their brief, but the Court finds that none of this testimony establishes the tort of
defamation. The testimony consists of John Mosleys and Daniel Mosleys
statements about what their customers told them about statements made by
Progressive. For example, John Mosley testified that customer Keith Hammitt was
told by a Progressive employee that the plaintiffs would take too long to repair his
car; that customer Fred Cessna told Mosley that Progressive told Mr. Cessna that
the plaintiff repair shops were not in Progressives network; and that other
unnamed customers have told Mosley that Progressive told them that Clinton Body
Shop may take longer or may charge you more, and that We dont guarantee
their work. (Id. at 8-9).
These statements, and the other testimony submitted by the plaintiffs about
what their customers told them, are hearsay. The plaintiffs have not submitted any
affidavit or deposition testimony by these (or other) customers, who could have
provided sworn, admissible evidence regarding what Progressive may have stated
to them about the plaintiffs. Again, the Court cannot rely on hearsay testimony to
determine that the plaintiffs have established that Progressive has made false,
defamatory statements, or to defeat a summary judgment motion under Rule 56.
Finally, the plaintiffs also assert that Progressive has no evidence that the plaintiff
repair shops take longer to complete repairs than Progressives network shops. This
is irrelevant because the plaintiffs have not proven that Progressive made any
statements about the length of repair time at the plaintiff repair shops.
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The plaintiffs have not put forth admissible evidence to establish the tort of
defamation. Accordingly, Progressive is entitled to summary judgment on this
claim. See Hardy Bros. Body Shop v. State Farm Mut. Auto. Ins. Co., 848 F. Supp.
1276, 1289 (S.D. Miss. 1994) (where affidavits submitted by the plaintiffs showed
that State Farms customers were not dissuaded from dealing with the plaintiffs
repair shop, evidence did not establish that the plaintiffs were injured in their
trade, business or profession, and defamation claim failed).
VII. Business Oppression
Count 8 of the Complaint alleges a claim of business oppression. The
plaintiffs assert that the defendants have willfully and maliciously caused
irreparable financial, emotional, and other damages to the plaintiffs . . .
individually and as a business. (2d Am. Compl. 17-18 (62), ECF No. 25). As the
defendants point out in their summary judgment motions, there is no cause of
action for business oppression under Mississippi law. The plaintiffs have failed to
point to any authority to show that this claim is legally cognizable. Accordingly,
summary judgment will be granted on this claim.
VIII. Emotional Distress Claims
Count 9 of the Complaint alleges claims of intentional and negligent
infliction of emotional distress. The Complaint states that the defendants extreme
and outrageous acts have emotionally harmed the plaintiffs. (2d Am. Compl. 18
(63), ECF No. 25). The parties briefing has confirmed that these claims were
brought by the individual plaintiffs, not the repair shops, and the plaintiffs have
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submitted that Daniel Mosleys individual claim of emotional distress should be


dismissed. (Pl. Mem. in Supp. of Resp. to Progressive Mot. for Partial Summ. J. 3,
ECF No. 248). Accordingly, the Court need only address John Mosleys claims of
emotional distress.
The defendants move for summary judgment on the grounds that John
Mosley has failed to establish the requisite elements of either claim. The plaintiffs
briefs in response to the Motions for Summary Judgment do not distinguish
between intentional infliction of emotional distress and negligent infliction of
emotional distress. These claims are distinct under Mississippi law.
Intentional Infliction of Emotional Distress
Meeting the requisite elements of a claim for intentional infliction of
emotional distress is a tall order in Mississippi. Jenkins v. City of Grenada, Miss.,
813 F. Supp. 443, 446 (N.D. Miss. 1993). Such a claim requires the defendant's
conduct to be so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Raiola v. Chevron U.S.A., Inc., 872 So. 2d 79,
85 (23) (Miss. Ct. App. 2004) (citation omitted). For example, the Mississippi
Supreme Court has pointed out that [a]mong the kind of actions that have been
found to evoke such outrage were a plot by a girlfriend and her parents to hide the
child of an unwed father, arranging for the baby to be adopted by strangers while
the father pursued a custody suit. Speed v. Scott, 787 So. 2d at 630 (discussing
Smith v. Malouf, 722 So. 2d 490, 498 (Miss. 1998), and finding that plaintiff had
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failed to show intentional infliction of emotional distress where defendant had


publicly accused plaintiff of stealing and called him a liar and a thief).
[T]he standard is whether the defendants behavior is malicious, intentional,
willful, wanton, grossly careless, indifferent or reckless. Sumler v. E. Ford, Inc.,
915 So. 2d 1081, 1089 (Miss. Ct. App. 2005) (citing Courtney, 884 So. 2d at 775
(28)). It is not enough that a plaintiff dislike a defendants acts, a plaintiff must
show that a defendant intentionally and maliciously sought to do the plaintiff
harm. Id. (citing Morgan v. Greenwaldt, 786 So. 2d 1037, 1044 (24) (Miss. 2001)).
Additionally, [t]he inquiry focuses on the conduct of the defendant rather than the
physiological condition of the plaintiff. It is the nature of the act itselfnot the
seriousness of its consequencesthat gives impetus to legal redress. Jenkins, 813
F. Supp. at 446 (citations omitted).
In response to the defendants Motions for Summary Judgment, the plaintiffs
argue that the insurance company defendants have caused customer delays in
writing estimates, caused customer frustration by writing incomplete estimates,
refused to make timely payments and to pay market rates, threatened to remove
(and actually removed) the plaintiffs from reference lists and made negative
comments about the repair shops. (Pl. Mem. in Supp. of Resp. to GEICO Mot. for
Summ. J. 30, ECF No. 579). These allegations, even if proven to be true, do not
constitute the type of extreme and outrageous conduct that would rise to the level of
intentional infliction of emotional distress. Mosley has not pointed to any action by
the defendants that would show they intentionally and maliciously sought to do
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harm to him personally. The plaintiffs allegations in this lawsuit are based on the
defendants refusal to pay claims related to automobile repairs, in what is
essentially an extended business dispute. This is not the type of conduct that would
permit a jury to conclude that the defendants actions are so outrageous and
extreme as to be intolerable in a civilized society. Accordingly, summary
judgment will be granted on this claim.
Negligent Infliction of Emotional Distress
In order to succeed on a claim of negligent infliction of emotional distress,
Plaintiff John Mosley must prove the usual elements of duty, breach, causation
and damages, as well as some sort of physical manifestation of injury or
demonstrable harm, whether it be physical or mental, and that harm must have
been reasonably foreseeable to the defendant. Stewart v. GMAC Mortgage, LLC,
No. 2:10-CV-00149-DCB, 2011 WL 1296887, at *10 (S.D. Miss. Mar. 31, 2011)
(quoting Fouche v. Shapiro & Massey LLP, 575 F. Supp. 2d 776, 788-89 (S.D. Miss.
2008); Am. Bankers Ins. Co. of Fla. v. Wells, 819 So. 2d 1196, 1208 (Miss. 2001)).
Defendants argue that they do not owe a duty to Mosley, and that Mosley has not
demonstrated the type of harm required to succeed on this claim.
In response, Plaintiff Mosley does not address the issue of duty, or any of the
remaining required elements of a negligence claim. He simply argues that he has
established through medical expert records of Dr. Wheat, his personal physician
named as an expert herein, that the actions of the Defendants have elevated his
blood pressure. (Pl. Mem. in Supp. of Resp. to GEICO Mot. for Summ. J. 29, ECF
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No. 579).17 He cites his own deposition testimony that he has had problems with
[his] blood pressure and he does not sleep much at night for worrying about all
this mess. (Id.)
Given that Mosley has not addressed the issue at all, he has failed to
demonstrate that any of the defendants owed him any duty, which is the first
element of a negligence claim. Of course, it follows that Mosley has also failed to
demonstrate a breach of any duty.18 Mosley has failed to establish the elements of
negligent infliction of emotional distress, and summary judgment will be granted on
this claim.
IX. Quasi-Estoppel
Finally, Count 10 of the Complaint asserts a claim of quasi-estoppel. The

17

However, Mosley does not submit Dr. Wheats records or expert report as
evidence in response to the summary judgment motions. The Court has considered
Dr. Wheats report, deposition testimony, and records that were submitted by the
defendants, and those that were filed in connection with the defendants motions to
exclude Dr. Wheats testimony. (See, e.g., ECF No. 434, ECF No. 436-1, ECF No.
445-4, ECF No. 445-5, ECF No. 465-3).
18

Moreover, even if Mosley had established that the elements of duty, breach,
and causation, it is doubtful that he could put forth substantial proof of emotional
harm, which is required to recover for negligent infliction of emotional distress.
Evans, 36 So. 3d at 476 (53). Mosleys physician noted he has had some elevation
in his blood pressure, but Mosley was never medicated or treated for elevated blood
pressure. (Wheat Dep. 63:9-10, 83:3-9, Progressive Aff. in Supp. of Mot. to Exclude,
ECF No. 436-1). Other than that, the only harm Mosley has alleged is that he does
not sleep much. Mississippi courts have consistently held that sleeplessness is
insufficient to support a claim for emotional distress. See Evans, 36 So. 3d at 476
(53) (citing Ill. Cent. R.R. Co. v. Hawkins, 830 So. 2d 1162, 1175 (27) (Miss.
2002); Wilson v. General Motors Acceptance Corp., 883 So. 2d 56, 65 (28) (Miss.
2004)).
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plaintiffs allege that when it has been to their advantage to do so, the defendants
have relied on the national databases, but at other times have refused to
compensate the plaintiffs according to those same databases. The Complaint seeks
to have the defendants estopped from denying the applicability and reasonableness
of the procedures and costs set forth in the industry databases. (2d Am. Compl. 19
(68), ECF No. 25).
The defendants have moved for summary judgment on this claim on the
grounds that quasi-estoppel is an affirmative defense, and not a cause of action,
under Mississippi law. In response, the plaintiffs simply argue that the defendants
arguments are based on improper analysis, but offer no authority for their
argument that quasi-estoppel is an affirmative claim. (See Pl. Mem. in Supp. of
Resp. to Progressive Mot. for Partial Summ. J. 13-14, ECF No. 248).
Quasi-estoppel is not recognized as an independent, affirmative claim under
Mississippi law. See T.C.B. Constr. Co., Inc. v. W.C. Fore Trucking, Inc., 134 So. 3d
752, 764 (Miss. Ct. App. 2012) (Quasi-estoppel is not an independent claim that
must be pled . . . Rather, quasi-estoppel is an affirmative defense.) (citations
omitted). While [t]ypically, it is the defendant who affirmatively pleads
quasi-estoppel to show the plaintiffs claim is based on an inconsistent position, the
Mississippi Court of Appeals has noted that a plaintiff . . . may also assert
quasi-estoppel in response to the defendants answer. Id. (citation omitted). This
Court has noted that the Mississippi Supreme Court has described equitable
estoppel as a shield and not a sword. Evergreen Lumber & Truss, Inc. v.
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CertainTeed Corp., No. 1:12CV264-HSO-RHW, 2013 WL 5817587, at *5 (S.D. Miss.


Oct. 29, 2013) (quoting Long Meadow Homeowners Assn, Inc. v. Harland, 89 So.3d
573, 577 (Miss. 2012)).
The plaintiffs have not cited any authority or case under which equitable
estoppel has been considered to be an affirmative cause of action, or where a
plaintiff has been entitled to relief under such a claim. The defendants are entitled
to summary judgment on this claim.
X. Standing
The defendants have made arguments regarding the individual plaintiffs
standing to bring several of the claims stated in the Complaint. (See, e.g.,
Progressive Mem. in Supp. Mot. for Partial Summ. J. 17-19, ECF No. 200). As the
plaintiffs claims are dismissed on other grounds, the Court need not address the
parties standing arguments.
CONCLUSION
For the reasons set forth above, the Court finds that the plaintiffs have not
met their summary judgment burden to support the claims stated in their Second
Amended Complaint. Accordingly, the defendants are entitled to summary
judgment.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion [198]
for Partial Summary Judgment filed by Defendant Progressive Insurance Company,
the Motion [451] for Summary Judgment filed by Defendant Progressive Insurance
Company, the Motion [445] for Summary Judgment filed by Defendant Direct
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General Insurance Company, and the Motion [479] for Summary Judgment filed by
Defendant GEICO Insurance Company are GRANTED.
SO ORDERED AND ADJUDGED this the 16th day of December, 2014.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.


CHIEF U.S. DISTRICT JUDGE

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