author: COBB, J., WALLER, J., McRAE, P.J., DIAZ, J.,

text:
    Leo POINDEXTER v. SOUTHERN UNITED FIRE INSURANCE COMPANY.
    No. 2001-CA-01512-SCT.
    Supreme Court of Mississippi.
    Feb. 27, 2003.

      Gary L. Geeslin, Columbus, attorney for appellant.
    Thomas L. Segrest, Columbus, attorney for appellee.
   COBB, J.,

for the Court.

¶ 1. Leo Poindexter’s pickup truck was damaged in a collision with a vehicle driven by Elby Fields. Fields was insured under an automobile insurance policy issued by Southern United Fire Insurance Company (Southern United). Poindexter filed suit in the Lowndes County Circuit Court, against Fields and Southern United, seeking to recover compensatory damages and punitive damages directly from Southern United. After Southern United filed an answer for Fields, the same attorney filed a separate answer for Southern United. In Southern United’s separate answer, it sought dismissal under Miss. R. Civ. P. 12(b)(6), which the circuit court granted. Poindexter appeals the dismissal, asserting three assignments of error, edited as follows:

I. DISMISSING HIS SUIT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED.
II. DENYING HIS MOTION TO AMEND THE COMPLAINT.
111. HOLDING THAT HIS MOTION TO COMPEL DISCOVERY WAS MOOT.

112. Although we agree with the trial court’s dismissal of Poindexter’s original complaint, we find that the trial court erred in denying Poindexter’s motion to amend the complaint under Rule 15(a). Hence, we reverse on that issue and remand for further proceedings.

FACTS

¶ 3. In June 2000, Poindexter’s 1971 Chevrolet pickup truck (being driven at the time by his son) was involved in a collision with Fields’s vehicle at an intersection in Columbus, Mississippi. Poin-dexter’s truck was towed from the scene of the accident and stored at the premises of the tow truck operator.

¶ 4. Poindexter made demand on Fieldses 'insurance carrier, Southern United, for payment to cover damage to his truck, loss of the use and enjoyment of his truck, and towing and storage fees. Southern United made an offer of settlement to Poindexter, which was rejected because it did not include payment for loss of use or towing and storage fees.

¶ 5. Poindexter filed a complaint in circuit court seeking compensatory damages of more than $7,000, which included $3,000 for damage to the truck, with the remainder being loss of use, towing and storage fees. The complaint further prayed for a declaratory judgment, pursuant to Rule 57(b)(2), that Poindexter’s claims for loss of use, towing and storage, were covered under Fields’s insurance policy with Southern United. Finally, the complaint alleged that Southern United breached its implied covenant of good faith and fair dealing in its settlement offer, and asked for $500,000 in punitive damages.

¶ 6. Southern United answered the complaint as Fields’s insurer, and separately, as to its own liability. In its answer in its separate capacity, Southern United admitted that Fields’s policy was in full force and effect at the time of the accident, and that unspecified “coverage” existed under the policy. Southern United also asserted the following three defenses: (1) the complaint fails to state a claim or cause of action against Southern United upon which relief may be granted; (2) Poindexter may not bring a direct action against Southern United for recovery of money it may be obligated to pay under its insurance contract with Fields; and (3) Poindexter does not have standing to assert a third-party independent tort claim for bad faith against Southern United.

¶ 7. Poindexter served a request for production of documents, which was partially resisted by Southern United on the basis that it was not a proper party to the lawsuit. Poindexter then filed a motion to compel discovery.

¶ 8. Pursuant to Rule 12(d), Southern United moved for a preliminary hearing on its motion to dismiss. Poindexter then filed a motion for leave to file a first amended complaint, to add the additional claim of intentional infliction of emotional distress.

¶ 9. The trial court conducted a hearing on Southern United’s motion to dismiss and Poindexter’s motions to compel discovery and for leave to file a first amended complaint. At the conclusion of the hearing, the trial court granted Southern United’s motion to dismiss and denied Po-indexter’s two motions. The trial court specifically concluded that: Poindexter could not bring a direct action against Southern United for recovery of sums which it may become obligated to pay under its insurance policy with Fields; Poin-dexter could not assert a separate or independent tort claim against Southern United for its alleged failure to settle Po-indexter’s claims against Fields; and because Southern United has admitted coverage for the accident, there existed no grounds for Poindexter to proceed against Southern United under Rule 57.

¶ 10. The trial court also found that Rule 12(b) provides that upon dismissal for failure to state a claim, leave to amend shall be granted in accordance with Rule 15(a), subject to the trial judge’s sound discretion, but because Poindexter would be unable to state a cause of action against Southern United under the facts set forth in the complaint, together with any reasonable inferences to be drawn therefrom, granting leave to amend would be futile. Finally, the trial court dismissed Poindex-ter’s motion to compel discovery as moot.

¶ 11. Only Poindexter’s separate claims against Southern United were dismissed pursuant to Miss. R. Civ. P. 54(b) and are before this Court on appeal. Poindexter’s claims for property damage, loss of use, towing and storage against Fields are not the subject of this appeal.

STANDARD OF REVIEW

¶ 12. This Court’s standard of review for a motion to dismiss for failure to state a claim upon which relief may be granted is well-established, as follows:

A motion to dismiss for failure to state a claim under Mississippi Rule of Civil Procedure 12(b)(6) raises an issue of law. This Court reviews questions of law de novo. When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.

Sennett v. United States Fid. & Guar. Co., 757 So.2d 206, 209 (Miss.2000) (citations omitted).

DISCUSSION

I. DISMISSING THE SUIT FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED.

¶ 13. Poindexter claims Southern United has taken the position that it is not responsible for loss of use, towing or storage costs. By taking this position, Poin-dexter argues that Southern United has denied its claim against Fields, and thus Poindexter is permitted to join Southern United as a defendant, pursuant to Rule 57.

¶ 14. Southern United responds that it has not denied coverage, that it has admitted that Fields’s policy was in fall force and effect at the time of the accident, and that it concedes that coverage existed under the policy. Southern United argues that the position it has taken clearly has nothing to do with coverage; instead, it solely concerns the extent, amount and character of damages which Poindexter is claiming. Southern United states that when Poindexter’s suit against Fields is finally tried, and if Poindexter obtains a final non-appealable judgment for his claims, Southern United, as Fields’ insurer, will pay that judgment up to the limits of its policy with Fields.

¶ 15. Rule 57 was amended in 2000 to modify Mississippi’s traditional rule which barred any type of direct action by an injured party against an insurer. Miss. R. Civ. P. 57(b)(2) & cmt. The amended rule allows an injured party to seek a declaratory judgment establishing coverage, where the insurance company has indicated it may deny coverage of the claim. The amended rule reads in pertinent part:

(2) A contract may be construed either before or after there has been a breach thereof. Where an insurer has denied or indicated that it may deny that a contract covers a party’s claim against an insured, that party may seek a declaratory judgment construing the contract to cover the claim.

Miss. R. Civ. P. 57(b)(2).

¶ 16. Poindexter claims that the amended Rule 57 is merely a codification of Lewis v. Allstate Ins. Co., 730 So.2d 65, 71 (Miss.1998), where this Court held:

We take this opportunity to state that if an insurance company can conduct a declaratory action regarding coverage prior to resolution of an underlying wrongful death trial, then the insureds and third party beneficiaries should be able to raise the coverage question in the underlying lawsuit as well. Pursuant to our rules of civil procedure, a hearing to determine coverage may be conducted if necessary. See Miss. R. Civ. P. 57 cmt. (recognizing that a plaintiff may ask for a declaratory judgment either as his sole relief or in addition or auxiliary to other relief). Such reviews of insurance contracts do not involve the jury and are often cursory. Accordingly, if a question of insurance coverage exists, a party should be able to bring the insurer into a lawsuit and have the coverage question resolved by the judge. It should be noted that this does not mean that a party can mention insurance before a jury, as that rule still holds in this state.

¶ 17. Southern United contends that Poindexter’s truck was rendered a total loss in the accident. Poindexter does not seem to dispute this, admitting in his brief that “Plaintiffs vehicle was later determined to be a total loss.” In its settlement offer, Southern United took the position that Poindexter could not recover damages for loss of use and storage of a vehicle that is not repairable. Southern United, however, reminds this Court that this appeal is not the proper forum in which to litigate this issue, as this issue must be decided when Poindexter’s case against Fields is tried. Southern United correctly states:

In attempting to litigate these issues under the guise of a Rule 57 claim for determination of coverage, Poindexter has gotten the cart before the horse. He either misunderstands the distinction between coverage under the policy and recoverable damages under the law, or is deliberately attempting to create the illusion of a coverage issue.
Since Southern United has not denied coverage under the policy of insurance issued to Fields, there is not basis for an action under Rule 57(b)(2), MRCP, and Poindexter’s reliance on Lewis ... is misplaced. Without a coverage dispute to resolve under Rule 57(b)(2), Southern United is not a proper party to these proceedings.

¶ 18. While the amended Rule 57 permits an injured party to seek a declaratory judgment of coverage, it does not permit an injured party to join an insurance company that has admitted coverage. Southern United has never disputed coverage; the extent of the coverage is an issue that must first be resolved by the trial court in Poindexter’s action against Fields.

¶ 19. Justice Diaz rejects as “semantic” our distinction between denial of coverage and admission of coverage, and submits that Southern United’s reluctance to pay until a court has adjudicated exactly what is owing to Poindexter is tantamount to a denial of coverage. For better or worse, semantics, the study of what words mean, is an essential part of the business of this Court, however maligned a science it has become. The meaning of Rule 57(b)(2) is that declaratory judgment may be sought where an insurer “has denied or indicated that it may deny” the existence of coverage. Southern United has stated in its brief to this Court: “If and when Mr. Poindexter obtains a final, non-appealable judgment for these claims, Southern United will pay the judgment, up to the limits of its policy issued to Fields.” What implication is there here that Southern United plans to deny coverage? Judicial estop-pel would presumably serve to quash any belated effort to do so and perhaps open Southern United up to bad-faith liability as well. See Mauck v. Columbus Hotel Co., 741 So.2d 259, 264-65 (Miss.1999) (judicial estoppel applies “where there is multiple litigation between the same parties and one party knowingly assert(s) a position inconsistent with the position in the prior litigation”) (internal quotation marks omitted). Declaratory judgments are meant to “serve a useful purpose in clarifying and settling the legal relations in issue” and “affording] relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.” Miss. R. Civ. P. 57 cmt. No uncertainty or lack of clarity exists with regard to coverage, so declaratory judgment is inappropriate.

¶20. Therefore, this issue is without merit.

II. DENYING HIS MOTION TO AMEND THE COMPLAINT.

¶ 21. In his complaint, Poindexter sought relief from Southern United on account of its alleged “bad faith” refusal to settle his claim against Fields. In his first amended complaint, Poindexter was attempting to add the claim of intentional infliction of emotional distress. Poindex-ter argues that the amended complaint cures the lack of privity problem from which his bad faith claim suffers. Poin-dexter filed his motion for leave to amend twenty-two days prior to the hearing. Po-indexter argues that the trial court’s ruling, denying his motion, was in direct conflict with the mandatory language of Rule 12(b) and 15(a) of the Mississippi Rules of Civil Procedure.

¶ 22. As we stated in Parker v. Mississippi Game & Fish Comm’n, 555 So.2d 725 (Miss.1989), “Our scope of review of an order denying a motion for leave to amend under Rule 15 is addressed to the sound discretion of the trial judge.” Id. at 730. “Unless we are convinced that the trial judge abused his discretion, we are without authority to reverse.” Id.

¶ 23. Southern United admits that Rule 12(b) provides that upon dismissal for failure to state a cause of action, leave to amend shall be granted in accordance with Rule 15(a), and further, leave to amend shall be granted when justice so requires. However, Southern United cites our opinion in Simmons v. Thompson Machinery of Miss., Inc., 631 So.2d 798 (Miss.1994), for the following:

Miss. R. Civ. P. 15(a) provides, inter alia, that “leave [to amend] shall be freely given when justice so requires.” ... [I]f the underlying facts or circumstances relied upon by the plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason— such as ... undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. — the leave should, as the rules require, be “freely given.”

Id. at 800 (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)) (emphasis in Simmons).

¶ 24. In denying the motion for leave to amend, the trial court found that Poindex-ter “cannot state a cause of action against said defendant based upon the facts set forth in the complaint, together with all reasonable inferences to be drawn therefrom, and that allowing amendment would be futile.” (emphasis added). In its Final Judgment of Dismissal, the trial court explained its reasoning. Since the first complaint was defeated on the 12(b)(6) motion, the court considered itself entitled to dismiss Southern United:

Although Rule 12(b), MRCP provides that upon dismissal for failure to state a claim upon which relief can be granted, leave to amend shall be granted in accordance with Rule 15(a), the grant of leave to amend under Rule 12 and Rule 15 is left to the trial judge’s sound discretion and leave to amend may be denied where it appears certain that plaintiff cannot state a claim showing that he is entitled to relief or that any amendment would be futile. [Citation to Simmons.]

¶ 25. In his rejected first amended complaint, Poindexter alleges intentional infliction of emotional distress (IIED) based on the following: (1) “outrageous conduct” in declining to pay his towing and storage charges; (2) “economic coercion” in advising Poindexter he could take the settlement or leave it; and (3) a combination of “outrageous conduct” and “economic coercion” in “making statements to, among others, the towing and storage service” to the effect that Poindexter could sue if he liked but that “since [he] did not have any money, he would not be able to hire an attorney for such a small claim.”

¶ 26. On the merits, Poindexter’s claim appears futile. Rule 57(b)(2), which provides Poindexter with his entire basis for proceeding against Southern United, applies only to issues of coverage, and an IIED claim is not a coverage issue. However, we are not here concerned with the merits of Poindexter’s claim, but with the narrow procedural question of whether the trial court abused its discretion in denying Poindexter leave to amend his complaint. And our answer to that narrow question, based on the plain language of Rule 15(a), must be that it did.

¶ 27. The language of Rule 15(a), incorporating a deliberate addition to the text of the federal rule, states:

On sustaining a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), or for judgment on the pleadings, pursuant to Rule 12(c), thirty days leave to amend shall be granted, provided matters outside the pleadings are not presented at the hearing on the motion.

Miss. R. Civ. P. 15(a) (emphasis added); see also Miss. R. Civ. P. 12(b) (on grant of Rule 12(b)(6) motion, “leave to amend shall be granted in accordance with Rule 15(a)”); Sligh v. First Nat’l Bank of Holmes County, 704 So.2d 1020, 1024 (Miss.1997) (“the court’s dismissal of their complaint for failure to state a claim for which relief can be granted afforded ... an automatic right to amend within thirty days”).

¶ 28. Because leave to amend was mandatory, the trial court erred in determining that it had discretion to evaluate the futility vel non of the amended complaint. Futility and Simmons are not relevant here, because that case did not involve mandatory leave to amend after a Rule 12(b)(6) dismissal, and the language involving futility was pertinent to the U.S. Supreme Court’s interpretation of the federal Rule 15 in Foman, not to our interpretation of the Mississippi-specific language about mandatory allowance of amendment.

¶ 29. This distinction between the federal and state language of Rule 15(a) was considered only briefly by our Court of Appeals in its opinion on whether Rule 15(a), taken with Rule 12(b), “provide[s] an automatic right to amend the complaint.” Jones v. Lovett, 755 So.2d 1243, 1246-47 (Miss.Ct.App.2000). We reproduce its discussion below:

Specifically, Jones argues that the word “shall” in Rule 15 removes this particular type of amendment from the judges discretion in denying leave to amend the complaint. The United States Supreme Court discussed amendments to complaints in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), stating:
Rule 15(a) declares that leave to amend “shall be freely given when justice so requires”; this mandate is to be heeded ... if the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.' — the leave sought should, as the rules require, be “freely given.”
Foman, 371 U.S. at 182, 83 S.Ct. 227, 9 L.Ed.2d 222. Although that case dealt specifically with the Federal Rules of Civil Procedure, the Mississippi Supreme Court cited the language with approval in Red Enter., Inc. v. Peashooter, Inc., 455 So.2d 793, 795 (Miss.1984).

Jones, 755 So.2d at 1247 (emphasis added). This Court did indeed approve Foman’s above-quoted language in Peashooter. However, in Peashooter, we were addressing only Mississippi Rule of Civil Procedure 15(b), which uses the same “when justice so requires” standard as does the federal Rule 15(a). Peashooter, 455 So.2d at 795. Therefore, we were able to rely on the U.S. Supreme Court’s language in Fo-man discussing the federal Rule 15(a). But that language simply does not apply when we turn to the Mississippi-specific language of our Rule 15(a). Therefore, the Court of Appeals should not have applied Foman and Peashooter to Rule 15(a), the plain language of which does indeed provide an “absolute right to amend the complaint.”

¶ 30. For us to hold otherwise would require us to disregard the plain language of Rules 12 and 15 in favor of our own notions of judicial efficiency and expediency. This we are not prepared to do. See Van Meter v. Alford, 774 So.2d 430, 432 (Miss.2000) (Waller, J.) (plain language of Rules should govern); cf. McGriggs v. Montgomery, 710 So.2d 886, 890 (Miss.Ct.App.1998) (holding Rule 41(a)(l)(i) “clear and unambiguous on its face and admit[ting] of no exceptions that call for the exercise of judicial discretion by any court”). A grant of discretion to our trial courts would open up the prospect of future litigation over what amendments are or are not “futile,” a word it may well be futile to define objectively. Unless and until the Mississippi Rules are altered, we prefer to exercise judicial restraint and to hold that “shall” means “shall,” not “shall sometimes.” See, e.g., Ivy v. Harrington, 644 So.2d 1218, 1221 (Miss.1994):

The operative word of § 93-9-21 is “shall.” A basic tenet of statutory construction constrains us to conclude that, unlike the discretionary nature of “may,” the word “shall” is a mandatory directive. As a consequence, in a proceeding to establish paternity, upon motion by either the plaintiff or defendant for an order requiring blood tests, the trial judge must grant the motion; no discretion is afforded the trial judge.

(emphasis added).

¶ 31. We do note that the motion for leave to amend was actually made before the trial court dismissed the first complaint. Whether it would have been proper for the trial court to first deny the motion to amend, and only then to dismiss the original complaint, we need not decide on the facts before us. Here, the trial court dismissed the claim stated in the original complaint, and only then went on to deny the motion to amend. That was an abuse of discretion, and we therefore reverse on this issue.

III. HOLDING THAT HIS MOTION TO COMPEL DISCOVERY WAS MOOT.

¶ 32. Finally, Poindexter argues that because the trial court erred in granting Southern United’s motion to dismiss, and denying his motion for leave to amend, it follows that the trial court erred in holding his motion to compel discovery moot. Neither party has cited authority on this issue. However, it follows from our reversal on issue II that the trial court, upon remand, should reconsider Poindexter’s motion on the merits.

CONCLUSION

¶ 33. The trial court did not err in dismissing Poindexter’s claim in his original complaint. However, it did err in denying Poindexter’s motion for leave to amend and his motion to compel discovery. Therefore, we affirm in part the judgment of the Lowndes County Circuit Court and reverse in part, remanding for proceedings consistent with this opinion.

¶ 34. AFFIRMED IN PART; REVERSED & REMANDED IN PART.

PITTMAN, C.J., WALLER AND CARLSON, JJ., CONCUR. EASLEY AND GRAVES, JJ., CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION. WALLER, J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, P.J., AND CARLSON, J. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, J. EASLEY, J., JOINS IN PART. DIAZ, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J., EASLEY AND GRAVES, JJ.

WALLER, J.,

concurring:

¶ 35. I agree that the dismissal of the claims against Southern United Fire Insurance Company should be affirmed. Furthermore, it is true M.R.C.P. 15(a) mandates that thirty days leave to amend be given if the trial court grants a motion to dismiss for failure to state a claim upon which relief is granted pursuant to M.R.C.P. 12(b)(6). Therefore, under a literal reading of M.R.C.P. 15(a), the denial of Poindexter’s motion to amend must be reversed.

¶ 36. While I concur with the majority, I believe the better course is to temper M.R.C.P. 15(a)’s mandate with the paramount concerns of logic, futility of amendment, and judicial economy. Because we should follow this course, I believe it is now appropriate for this Court to amend M.R.C.P. 15(a) to allow trial courts to use discretion in ruling on motions to amend. See Fed.R.Civ.P. 15(a). Here, Poindexter does not propose an amendment that would allow him to proceed under Mississippi law.

¶ 37. Under our law, an injured third party may not maintain any direct action against a tortfeasor’s insurance company. Westmoreland v. Roper, 511 So.2d 884, 885 (Miss.1987); Smith v. City of West Point, 475 So.2d 816, 819 (Miss.1985). However, we have recognized that this line of cases was modified by the adoption of Rule 57 of the Mississippi Rules of Civil Procedure, which provides that an insurance company may be named as a party to an action for the purpose of seeking declaratory judgment on the question of coverage. Jackson v. Daley, 739 So.2d 1031, 1038 (Miss.1999). In Jackson, we affirmed a circuit court’s ruling which allowed a plaintiff to add the defendant tortfeasor’s insurer as a defendant for declaratory judgment for the limited purpose of determining coverage, but we would not allow the insurer to be named as a real party in interest. Id.

¶ 38. Because there is no statutory authority allowing a third-party direct action against an insurance company, M.R.C.P. 57’s right of filing a declaratory judgment action against an insurer is a narrow exception to the broader prohibition against an injured party maintaining a direct action against a tortfeasor’s insurer. This exception does not permit Poindexter to amend his complaint to add a claim of intentional infliction of mental distress against Southern United. Here, no issue exists as to coverage because Southern United has assumed the defense of Poin-dexter’s claim against Fields, its insured, without asserting any issue as to coverage.

SMITH, P.J., AND CARLSON, J., JOIN THIS OPINION.

McRAE, P.J.,

dissenting:

¶ 39. I agree with Justice Diaz who states that this action should be reversed and remanded for review and a determination of coverage as provided for by Rule 57 of the Mississippi Rules of Civil Procedure, which is a direct codification of this Court’s ruling in Lewis v. Allstate Ins. Co., 730 So.2d 65 (Miss.1998).

¶ 40. After Lewis, M.R.C.P. 57 was amended to take care of situations such as this. It was to provide a quick resolution to the issue of coverage through a declaratory judgment. The only way to expedite determination of coverage in this situation is to follow the procedures of M.R.C.P. 57 and file suit seeking declaratory judgment. Why should one have to go to trial to obtain a determination on the loss of use and depreciation damages, when it can be determined up front?

¶ 41. It is clear that Southern United is “denying] or indicating] that it may deny” coverage within the meaning of M.R.C.P. 57. Southern United, in its brief, states that if and when Leo Poindex-ter obtains a final judgment for these claims, then it will pay the judgment up to the limits of the policy issued to Field. But presently, it is denying that the policy covers the loss of use of a vehicle when the vehicle is a total loss. What is Southern United really doing? It is essentially denying coverage.

¶ 42. Furthermore, it is more appropriate for a determination of coverage to be addressed in a declaratory judgment proceeding rather than through liability litigation on the merits. This is what M.R.C.P. 57 was designed to do.

¶43. For these reasons, I respectfully dissent.

DIAZ, J., JOINS THIS OPINION. EASLEY, J., JOINS IN PART.

DIAZ, J.,

concurring in part and dissenting in part:

¶ 44. I agree that the trial court committed reversible error by refusing to allow Leo Poindexter an opportunity to amend his complaint. However, I disagree with the majority’s affirmance of the trial court’s dismissal of his declaratory judgment action. Accordingly, I respectfully dissent.

¶ 45. Poindexter sustained property damage and economic loss as a result of the negligence of Elby L. Fields. Fields is insured for such negligence by Southern United Fire Insurance Co., which denied coverage for a substantial portion of Poin-dexter’s claim. As a consequence, Poin-dexter was entitled to join Southern United as a defendant pursuant to M.R.C.P. 57(b)(2). According to that rule, Poindex-ter is entitled to seek a declaratory judgment construing whether the insurance contract provides coverage for his loss.

¶ 46. Poindexter suffered a total loss of his vehicle. It has been sitting in storage, with fees accruing, since June 30, 2000. He is unable to use it anymore and is in need of a new vehicle. If Fields is found to have been the cause of Poindexter’s losses, then she will be also liable for these additional expenses. See Vining v. Smith, 213 Miss. 850, 58 So.2d 34 (1952) (holding that the loss of use of a motor vehicle, and amounts necessarily expended in the hire of another vehicle, and the reasonable cost of preserving and repairing injured motor vehicles are elements of damages which may be recovered). As her insurer, Southern United is contractually obligated to indemnify Fields for liabilities incurred which are covered under their insurance agreement.

¶ 47. As is its prerogative, Southern United disputed the amount of actual property damage sustained by Poindexter and took the position that it is not responsible for the towing and storage charges or the loss of use, thus denying coverage for these claims. Consequently, as is his statutorily-prescribed prerogative, Poindexter joined Southern United as a defendant pursuant to M.R.C.P. 57(b)(2), which provides in pertinent part as follows:

Where an insurer has denied or indicated that it may deny that a contract covers a party’s claim against an insured, that party may seek a declaratory judgment construing the contract to cover the claim.

The Comment following Rule 57 states, in pertinent part:

Rule 57(b) was amended in 2000 to authorize an injured party, where an insurer has indicated that it may deny coverage of the injured party’s claim, to seek a declaratory judgment establishing coverage. The traditional rule in Mississippi barred any type of direct action by an injured party against an insurer, (citations omitted). The amendment modifies the traditional rule in the interest of judicial economy by allowing a direct action for the limited purpose of a declaratory judgment.
Allowing the injured party to seek a declaration that the injured party’s claim is covered by the defendant’s policy may reduce litigation costs. First, it may avoid unnecessary litigation when the policy is the only asset that might satisfy the injured party’s claim, because a determination of non-coverage would avoid the need of trial of the claim against the insured. In addition, if the injured party brings the claim for declaratory judgment together with the claim against the insured, the rule may allow all of the issues growing out of an incident to be resolved in a single judgment.

¶ 48. Southern United offered to settle this claim with Poindexter for less than the damages he incurred; thereby essentially asserting that coverage did not exist for his additional damages. Following the procedure outlined in Rule 57(b), Poindex-ter sought a declaratory judgment to determine the coverage issue. In my opinion, this procedure is sound and promotes the economical resolution of cases. Southern United has asserted in its brief that, if its insured is found negligent, and coverage is found to exist for these additional damages, then it will make Poindexter whole up to the limits of its policy with Fields. If it can be determined, prior to a lengthy jury trial, that coverage does in fact exist for these damages, then this determination should be made. It may cause Southern United to revisit settlement and thereby, in conformity with the hopes of the commentators to Rule 57(b), avoid unnecessary litigation and waste of judicial resources.

¶ 49. In my opinion, the semantic argument urged by Southern United and accepted by the trial court and the majority of this Court confuses the issue. It focuses on a distorted linguistic variation of what Southern United is actually asserting. Southern United is not merely arguing over “the extent, amount and character of damages which Poindexter is claiming,” rather, it is asserting that, regardless of how much it cost Poindexter to store his vehicle or how much he was inconvenienced by not having the use of his vehicle, it is not responsible for that damage because it is not a covered loss. In my opinion, that assertion is the very purpose for which Rule 57(b) was amended, and Poindexter’s declaratory judgment action should be allowed to proceed.

¶ 50. I agree that the trial court committed reversible error by refusing to allow Poindexter an opportunity to amend his complaint. However, I would also reverse the trial court’s decision to dismiss Southern United from this action. Because it has denied responsibility/coverage for his claim, I would require Southern United to defend Poindexter’s declaratory judgment action in accordance with the strictures of M.R.C.P. 57(b)(2).

McRAE, P.J., EASLEY AND GRAVES, JJ., JOIN THIS OPINION.

      . The federal courts have equated “futile” with the Rule 12(b)(6) standard. See, e.g., Stripling v. Jordan Prod. Co., 234 F.3d 863, 872-73 (5th Cir.2000). Were we to do likewise, the consequence would be to transform every post-12(b)(6) motion to amend under Rule 15(a) into a 12(b)(6) hearing on the proposed amendment. The wisdom of this approach is not for us to decide today, given our plain-language reading of our Rule 15(a).

      . It would be strange, admittedly, if a motion to amend could be denied five minutes before dismissal, but was required to be granted five minutes after; parties would then be penalized for expediting their pleadings. In the former instance, the trial court would be bound by the rule that leave to amend shall be granted freely as justice requires. “In practice, an amendment should be denied only if the amendment would cause actual prejudice to the opposite party.” Miss. R. Civ. P. 15 cmt. The mere fact that the opposite party would be put to the trouble of moving to dismiss the amended complaint probably does not rise to the level of "actual prejudice.” As we have stated, the language of Rule 15(a) is explicitly mandatory and does not suggest any room for prudential considerations.

      . Fed.R.Civ.P. 15(a) provides as follows:
      (a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the-action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

      . Actually, the Court at one point recognized that this line of cases was overruled, but this finding was withdrawn after a motion for rehearing was filed. See State Farm Mut. Auto. Ins. Co. v. Eakins, No. 96-CT-00034-SCT, 1998 WL 852920, *3 (Miss. Dec. 10, 1998), superceded on rehearing, 748 So.2d 765 (Miss. 1999).


source: Caselaw Access Project

author: WALLER, J., McRAE, P.J.,

license: Public Domain

text:
    Jimmy ABRAMS and Mary Abrams v. The MARLIN FIREARMS COMPANY and Gary Dedeaux d/b/a Gary’s Pawn & Gunshop.
    No. 2001-CA-01613-SCT.
    Supreme Court of Mississippi.
    Feb. 27, 2003.

      Charles M. Merkel, Jack R. Dodson, Clarksdale, attorneys for appellants.
    James A. Becker, Jr., Jackson, attorney for appellees.
    Before PITTMAN, C.J., WALLER and CARLSON, JJ.
   WALLER, J.,

for the Court:

¶ 1. Jimmy Abrams and his wife, Mary Abrams, appeal from a Clay County Circuit Court judgment entered in accordance with a unanimous jury verdict in favor of defendants Marlin Firearms Company and Gary Dedeaux d/b/a Gary’s Pawn and Gun-shop. The Abrams claim that the trial court erred in admitting certain evidence and that the verdict was against the overwhelming weight of the evidence. We affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On October 21,1994, Jimmy Abrams purchased a new Marlin model 336 lever action 30-30 caliber hunting rifle from Gary’s Pawn and Gunshop in West Point, Mississippi. On December 30, 1994, Abrams sustained a self-inflicted gunshot wound to his right leg while inside his extended cab Toyota pick-up. The bullet entered Abrams’ knee and traveled through Ms calf.

¶ 3. Robin Minyard, a passer-by, found Abrams lying in the middle of Waverly-Ferry Road in Lowndes County. At 7:50 p.m., approximately two hours after Abrams said he shot himself, a call for assistance was placed to 911. In the meantime, Dallas Slatton, a part-time volunteer paramedic who happened to be in the area, attended to Abrams and noted he was quite coherent given Ms condition. He testified as to the presence of alcohol on Abrams’ breath and tire tracks leading from nearby property to Abrams’ pick-up. Upon questioning by Slatton, Abrams confirmed that he had been spotlighting deer. Inside the pick-up, Slatton noticed beer bottles both empty and full, a fresh pool of blood in the floorboard, rifles on the passenger side, and a Q-Beam handheld spotlight plugged into the dash. Paramedics transported Abrams to Baptist Hospital in Columbus where, despite all efforts, his leg became necrotic and gangrenous and had to be amputated above the knee eleven days later.

Abrams’ Theory of the Case

¶ 4. According to Abrams, on December 30, 1994, he traveled to his mother’s house to target practice and sight the scope for the new Marlin. When he finished shooting the Marlin, he cycled a live round into the chamber and uncocked the hammer. At approximately 5:30 p.m. he attempted to place the Marlin across the backseat of his pick-up when, as he sat on the driver’s seat and swung the Marlin between the front seats, the rifle struck the chromed headrest post on the passenger seat hitting the closed hammer and causing the rifle to fire. He alleged the bump firing was due to the defective design of the Model 336 rifle.

¶ 5. Abrams testified that he tied a piece of wire around his leg to slow the bleeding. He started his manual transmission truck by pressing a clutch release button and drove to his mother’s house nearby. He testified that he did not stop at his mother’s house for help since no one was home but instead attempted to drive himself to the hospital.

Marlin’s Theory of the Case

¶ 6. Marlin’s theory of the case was that the rifle was not defective and that Abrams’ own negligence, inattention, and misuse of the rifle were the causes of his injuries. It contended the cause of the accident was a full-cocked discharge of the rifle.

¶ 7. Marlin further asserted that Abrams could not have possibly shot himself at the time and place he said he did and expect to survive over two hours in that condition. Abrams testified that he shot himself at approximately 5:30 p.m. near his mother’s house in New Hope in Lowndes County. This is approximately fifteen miles and a twenty-minute drive to the spot where he was found and which is on the other side of the hospital from his mother’s house. Rather, Marlin submitted that Abrams shot himself in the woods near Waverly-Ferry Road less than half an hour before he was found.

Course of Proceedings Below

¶ 8. Abrams filed this products liability action against Marlin and Gary’s Pawn and Gunshop alleging the Marlin 30-30 was defective, unreasonably dangerous, and discharged without a trigger pull. The trial court granted Abrams’ motion in li-mine to exclude evidence of prior misdemeanor convictions for spotlighting deer, driving under the influence, and assault and battery; evidence of Abrams’ possible consumption of alcohol prior to the accident; and evidence that Abrams was hunting deer illegally at the time. After reconsideration prior to trial, the trial court allowed Marlin to inquire into the possible alcohol consumption and illegal hunting.

¶ 9. At trial, Abrams presented expert testimony that the Marlin rifle was defective because it lacked a passive safety device to prevent the rifle from accidentally discharging when the hammer is uncocked and placed against a live round. However, neither expert could rule out the possibility of a full-cocked discharge. Determining exactly how the rifle fired was hindered greatly by the loss of the spent shell casing, since a bump-fire would leave a different firing pin indentation than would a normal firing.

¶ 10. Evidence of proper gun handling techniques as it related to Abrams’ handling of the rifle was also presented. Lome Smith, Jr., a former hunter education instructor, testified as follows about Abrams’ violation of various “commandments” of firearms safety:

The first would be — the first commandment says to treat every firearm with the same respect due a loaded gun. So any firearm that you’re handling you treat it as if it is loaded so if an accident happens then you’ve got it pointed in a direction where no one gets hurt. The second commandment says to control the direction of the firearm’s muzzle. If he would have controlled the direction of the muzzle even if it had gone off, then he would not have shot himself. The third commandment that he violated was unload firearms when not in use. Leave the actions open. Firearms should be carried empty in cases to and from shooting areas so they should be unloaded and carried in cases from one area to the other or from the shooting range back to the house or wherever. The fourth one says never point a firearm at anything you don’t intend to shoot. If you don’t intend to shoot something, then you don’t point the gun at it. The fifth one says store firearms and ammunition separately beyond the reach of children and careless adults. And the sixth one says to avoid alcoholic beverages and other mood — altering drugs while or during shooting.

¶ 11. After hearing evidence on theories of negligence and strict products liability, a jury returned a unanimous verdict in favor of Marlin and Gary’s. Abrams’ motion for a new trial was denied, and he appeals asserting as error that the verdict was against the overwhelming weight of the evidence and the admission of the evidence of alcohol consumption and illegal hunting.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF ALCOHOL CONSUMPTION AND ILLEGAL DEER HUNTING.

Standard of Review

¶ 12. Determining the relevancy and admissibility of evidence is within the discretion of the trial judge, and we will reverse only in the event that discretion has been abused. Rials v. Duckworth, 822 So.2d 283, 287 (Miss.2002); Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611, 618 (Miss.2001); Buel v. Sims, 798 So.2d 425, 429 (Miss.2001); Herring v. Poirrier, 797 So.2d 797, 804 (Miss.2000).

A. Evidence of Possible Alcohol Consumption

¶ 18. Abrams contends that the trial court erred in admitting evidence of his possible alcohol consumption. Dallas Slatton testified that he smelled alcohol on Abrams’ breath as he attended to Abrams and noted the presence of beer in the truck. Ben Kilgore, a game warden with the Department of Wildlife, Fisheries and Parks, also testified as to the presence of alcohol in Abrams’ pick-up. His report of the incident stated as much in pertinent part:

In the vehicle there was a very large pool of blood in the floor board of the driver’s side. On the seat was a Q-Beam which was plugged into the fighter outlet. There were two rifles on the seat. One was a bolt action 30-30 with a scope. The other was a twenty two rifle. There was a sack on the seat of the passenger side. It contained two unopened Natural Lite beers [and] one empty Natural Lite beer bottle. These were in the Natural Lite six-pack carton. The two unopened beer bottles were very cold when I felt of them. There was also a Natural Lite beer bottle in the drink holder on the dash. It was about 1/4 full.

David Minyard, whose wife initially found Abrams lying in the street and called him for assistance, testified to the same effect.

¶ 14. Specifically, Abrams claims reversible error and asserts there was no evidence that alcohol had anything to do with the accident and the proof never established that he was actually intoxicated. Marlin responds that the evidence was relevant to show negligence, credibility and causation.

¶ 15. Abrams relies heavily on our decision in Donald v. Triple S Well Service, Inc., 708 So.2d 1318 (Miss.1998). In Donald, a case in which the plaintiff slipped and fell while working on a gas well, the defense elicited testimony that Donald’s breath smelled of alcohol on prior occasions while on the job. 708 So.2d at 1322. However, Triple S did not produce a witness that actually observed Donald drinking. Id. at 1324. We held that the evidence never established that Donald had a habit of drinking on the job. Id. at 1323. We also noted that while possibly admissible under Miss. R. Evid. 406, it was unfairly prejudicial under Miss. R. Evid. 403. Id. at 1324. Regarding admissibility of such evidence, we held, “Testimony of alleged alcohol consumption should not be allowed before the jury without a minimal showing of admissibility or causal connection between the alleged consumption of alcohol and the accidents involving Donald.” Id. (emphasis added).

¶ 16. Donald dealt with the admissibility of evidence of alcohol consumption to establish a habit of drinking. The Court of Appeals’ decision in Hageney v. Jackson Furniture of Danville, Inc., 746 So.2d 912 (Miss.Ct.App.1999), is more on point in that it deals with evidence of drinking just prior to the event in question in the context of a products liability action. The Hageneys brought a products liability action for injuries Tim Hageney sustained when a bar stool collapsed under his weight. 746 So.2d at 915. The trial court admitted evidence over a motion in limine that the Hageneys were drinking at the time of the accident. Id. at 920. Specifically, “the trial court found that the Hage-neys’s state of sobriety was relevant in the jury’s assessment of their credibility in relating the events surrounding the incident, and Tim’s consumption of alcohol was relevant to the issue of whether Tim was contributorily negligent.” Id. (citing Miss. Power & Light Co. v. Lumpkin, 725 So.2d 721 (Miss.1998)). The Court of Appeals concluded the trial court did not abuse its discretion when allowing the evidence. Id.

¶ 17. Though not cited by either party in their briefs, our decisions in Accu-Fab & Const., Inc. v. Ladner, 778 So.2d 766 (Miss.2001), and Pope v. McGee, 403 So.2d 1269 (Miss.1981), warrant discussion and distinction. In Accu-Fab, a case where the decedent fell through a hole in a roof at a construction site, evidence of a marijuana cigarette found in Ladner’s pocket and evidence of marijuana use were found to be irrelevant because there was no showing that the marijuana impaired Lad-ner. 778 So.2d at 772. In Pope, a case involving an automobile accident, we held that evidence of two six-packs of warm beer and some unidentified white powder were inadmissible because there was no proof of the driver’s being intoxicated or impaired. 403 So.2d at 1271. In this case, however, there is proof of alcohol use— namely, Slatton’s testimony of smelling alcohol on Abrams’ breath while administering aid to him.

¶ 18. In the instant case, there was evidence of cold beer in Abrams’ pick-up and the smell of alcohol on his breath. In our opinion, evidence of possible alcohol consumption just prior to the accident was highly relevant and probative as to Abrams’ credibility, his recollection of the accident since there were no other witnesses, and his contributory negligence.

B. Evidence of Possible Illegal Deer Hunting

¶ 19. Abrams also argues that evidence of possible illegal spotlighting of deer was completely irrelevant because the accident occurred inside the pick-up. Marlin counters arguing that the evidence was not probative that Abrams was participating in illegal activity but that the evidence was probative on the issue of his negligence. Marlin’s position is that “the jury may have reasonably concluded that Abrams’[s] spotlighting activity explained why he had a loaded rifle with the safety off in the confined space of his pick-up truck.”

¶ 20. Abrams’ only support of his argument is Shields v. Carnahan, 744 P.2d 1115 (Wyo.1987). Shields was a medical malpractice case in which the doctor elicited evidence that the plaintiff “was on a late night trip with a man other than her husband.” Id. at 1116. The Supreme Court of Wyoming reversed and remanded, holding that “[ujnder the circumstances, whether appellant was on a late night trip with a man other than her husband, or whether that man had been drinking before he drove the accident vehicle had nothing to do with the malpractice issues involved in this case.” Id. at 1116— 17.

¶21. We disagree with Abrams’ reliance on Shields. Shields dealt with pre-accident conduct completely irrelevant to the underlying issue of medical malpractice — an issue totally unrelated and unconnected to the pre-accident conduct. In the instant case, however, the evidence supports Marlin’s theory and established a causal connection that Abrams may have been spotlighting at the time and that the accident was a result of a full-cocked discharge, for he was in the cab of a compact pick-up pointing a loaded deer rifle at himself with its safety disengaged in violation of countless gun-handling principles. Slat-ton testified that he saw mud on Abrams’ pick-up and a Q-Beam spotlight plugged into the dash and tracks leading to the pick-up from the property near the spot where he was found. Slatton also testified that, as he was administering first-aid to Abrams and talking to him to keep him alive, Abrams admitted he was out spotlighting. Such evidence is very relevant under Miss. R. Evid. 401, and its probative value is not outweighed by unfair prejudice. Miss. R. Evid. 403.

¶ 22. It is inherent that nearly all evidence is prejudicial to a party in one way or another. The inquiry as it regards admissibility is whether that prejudice is unfair. Miss. R. Evid. 403. “Unfair prejudice,” according the Advisory Committee Note to Fed.R.Evid. 403, “means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” The possibility of illegal spotlighting was supported by the evidence and was meant to explain Marlin’s theory of the accident, Abrams’ credibility as a witness, and his recollection of how the accident occurred, not to evoke rancor against Abrams within the jury. The activity of spotlighting was contemporaneous to the accident, and it surely cannot be said that the only manner in which the accident occurred was the manner to which Abrams testified, which was a hammer-down bump fire while entering his pick-up after target shooting. Given the testimony of tire tracks leading from the nearby property and the fact that Abrams was found approximately fifteen miles from his mother’s house when the hospital was not even remotely close to where he was found, we hold that admission of this evidence was not an abuse of the trial court’s discretion.

II. WHETHER THE JURY’S VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 23. Abrams argues that the jury’s verdict is against the overwhelming weight of the evidence on two bases. First, there is no credible evidence that the accident occurred in any manner different than how he described it. Second, all witnesses agreed that the Marlin 30-30 would fire if the hammer was struck and that this problem could have been eliminated by a passive safety device.

¶24. It is the province of the jury to determine weight and worth of testimony and the credibility of witnesses at trial. Upchurch ex rel. Upchurch v. Rotenberry, 761 So.2d 199, 205 (Miss.2000); Wilmoth v. Peaster Tractor Co. of Lexington, Inc., 544 So.2d 1384, 1386 (Miss.1989); Burnham v. Tabb, 508 So.2d 1072, 1077 (Miss.1987); Travelers Indem. Co. v. Rawson, 222 So.2d 131, 134 (Miss.1969). We will, however, reverse if the verdict is against the overwhelming weight of the evidence and credible testimony pre sented. Ducker v. Moore, 680 So.2d 808, 811 (Miss.1996); Parker v. Thornton, 596 So.2d 854, 858 (Miss.1992); Roberts v. State Farm Mut. Auto. Ins. Co., 567 So.2d 1193, 1196 (Miss.1990).

¶ 25. Contrary to Abrams’ contentions, there is credible evidence supporting the jury’s unanimous verdict. Abrams cites little persuasive authority in support of his argument. The evidence supports a reasonable inference that Abrams was in fact not at his mother’s house when he shot himself and that the accident occurred contrary to his recollection of events. Furthermore, the timing of the accident according to Abrams in relation to when help arrived (approximately two hours), the location where he was found in relation to the location of his mother’s house and the hospital, the fact that Dallas Slatton smelled alcohol on Abrams’ breath, and the fact that Ben Kilgore noted the beer in Abrams’ truck was very cold all allowed the jury to infer and conclude that the accident occurred other than as Abrams recalled and/or was a result of his contributory negligence. The evidence simply does not reasonably preclude a conclusion of a full-cocked discharge as Marlin asserts. See Shields v. Sturm, Ruger & Co., 864 F.2d 379 (5th Cir.1989) (applying Mississippi law) (affirming jury verdict in favor of defendant gun manufacturer in products liability action where plaintiff alleged a .357 Magnum revolver was defective when bump-fired inside vehicle into plaintiffs leg and defendant alleging plaintiffs negligence caused accident).

CONCLUSION

¶26. While we certainly sympathize with Abrams for the great loss he sustained, the fact remains that he was unable to convince a jury that the accident occurred as he described due to a defective Marlin rifle. The evidence about which he complains is relevant and probative, and we cannot say that the trial court abused its discretion in admitting it. We affirm the judgment entered in accordance with the unanimous jury verdict in favor of the defendants Marlin Firearms Company and Gary Dedeaux d/b/a Gary’s Pawn and Gun-shop.

¶ 27. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., COBB, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, J.

McRAE, P.J.,

dissenting:

¶ 28. The admission of evidence of possible illegal deer hunting had no probity whatsoever and was unfairly prejudicial. This case should therefore be reversed and remanded for a new trial. Whether Abrams was illegally hunting deer, or even legally hunting deer, is of no probative value as to whether a loaded gun, regardless of why, where, or when it was loaded, had a manufacturing defect or whether Abrams was negligent.

¶ 29. In this case, the only relevant fact concerning Abrams and the issue of defect or negligence, is how the gun was loaded and fired. Deer hunting has nothing to do with how a gun is loaded or fired. Moreover, even if a strained case of relevance can be made, as was done here, the prejudicial effect of illegal hunting far outweighs such an attenuation. Admission of evidence of illegal activity, when not relevant or even remotely relevant, serves only one purpose: it prejudices and sways the jury by destroying a party’s character and integrity.

¶ 30. The majority, however, justifies the admission of possible illegal deer hunting on the notion that “it is inherent that nearly all evidence is prejudicial to a party one way or another;” and it further elaborates that evidence of illegal hunting was “not to evoke rancor against the plaintiff with the jury.” This catch-all, “oh-it’s-no-big-deal” type of justification is far too slender a reed upon which to hang admission of irrelevant and prejudicial evidence in a product defect case. Abrams was prejudiced when this information was put before the jury. I would reverse and remand for a new trial. Accordingly, I dissent.

DIAZ, J., JOINS THIS OPINION.

      . Slatton testified that the reason he questioned Abrams was to keep him alert and talking to keep him alive.

      . In addition to the Marlin, Abrams also had with him a Winchester rifle, a .22 caliber Browning semi-automatic rifle, and an SKS military-type rifle.

      . The Model 336 rifle is equipped with a cross-bolt safety mechanism; however, Abrams never engaged it or knew the rifle was equipped with it.

      . A full-cocked discharge is a normal firing by pulling the trigger.

      . Following the injury, game warden Ben Kil-gore confiscated all of the rifles in Abrams’ track and the rounds in them. The rifles and live rounds were subsequently returned to Abrams; however, the spent hull and projectile from the Marlin were turned over to Lowndes County Sheriffs deputies working the case, and no one can account for their whereabouts.


author: SOUTHWICK, P.J.,

text:
    Betty VAUGHN, Administratrix of the Estate of Cassalena WILLIAMS and Cassalena Williams (Deceased), Appellants, v. MONTICELLO INSURANCE COMPANY, Appellee.
    No. 2000-CA-01758-COA.
    Court of Appeals of Mississippi.
    Oct. 23, 2001.
    Rehearing Denied Jan. 8, 2002.

      Cynthia Mitchell, Clarksdale, Attorney for Appellants.
    Gerald H. Jacks, Kathy R. Clark, Attorneys for Appellee.
    Before SOUTHWICK, P.J., LEE, and MYERS, JJ.
   SOUTHWICK, P.J.,

for the court:

¶ 1. Cassalena Williams brought suit against Monticello Insurance Company for bad faith filing of an interpleader action. She asserts that the company should have paid her all the proceeds of a policy. Monticello was granted summary judgment. On appeal, Williams argues that issues of material fact existed as to the good faith of the interpleader. We find no error and affirm.

FACTS

¶ 2. Cassalena Williams and her children lived in a home that she and her three brothers had inherited as equal cotenants. Williams obtained insurance from Monticello Insurance Company on the home in her name. The home was destroyed by fire on May 8, 1990. An attorney for her brothers contacted Monticello and asserted an interest in the property. He said that a suit would immediately be brought if Monticello paid only Williams. On July 26, 1990, he demanded that the funds be made payable to all the heirs. At some point during the dispute, Williams agreed to a joint check. By a letter from her attorney dated August 6, 1990, that agreement was rescinded.

¶ S. Monticello filed an interpleader on August 17, 1990, in chancery court, depositing the full amount of the policy into the court’s registry. Monticello was later dismissed, but the order reserved Williams’s bad faith claim against the company. In 1991, an agreement was reached among the siblings on sharing the insurance proceeds. The agreement was incorporated into a court order.

¶ 4. Williams filed this action in 1993 alleging that Monticello acted in bad faith by failing to pay her all of the proceeds from the insurance policy and for filing the interpleader. In 1994 Williams died, and her administratrix was substituted. Monticello’s motion for summary judgment was granted in 2000. Williams’s appeal has been deflected here.

DISCUSSION

1. Validity of summary judgment order.

¶5. Before addressing Williams’s complaint about the merits of the summary judgment, we first examine a procedural issue that she raises. A hearing was held on the motion for summary judgment by Circuit Court Judge Jack Hatcher. Judge Hatcher died before ruling on the motion. Howard Q. Davis was appointed for a two month term which ended on June 30, 2000. Judge Davis issued an order granting summary judgment which he signed and dated June 8, 2000. For reasons unknown, the order was not filed until August 8, 2000 after the expiration of Judge Davis’s term. Albert B. Smith was appointed to serve beginning at the end of Judge Davis’s term.

¶ 6. As a result of the late filing, Williams filed a motion to have the order set aside. Judge Smith denied the motion, finding Judge Davis’s order to be valid. In the same order he adopted the findings of fact and conclusions of law that are found in the June 8, 2000 order.

¶ 7. The function of the judgment itself and its filing and entry are explained under the comments to Mississippi Rules of Civil Procedure.

A judgment is the final determination of an action, and thus has the effect of terminating the litigation; it is “the act of the court.” “Filing” simply refers to the delivery of the judgment to the clerk for entry and preservation. The “entry” of the judgment is the ministerial notation of the judgment by the clerk of the court pursuant to Rule 58; however it is crucial for the effectiveness of the judgment and for measuring the time periods for appeal and the filing of various motions.

M.R.C.P. 54, cmt. Although the entry by the clerk is a ministerial act, this comment states that it is necessary for the effectiveness of the judgment. What is not discussed is whether entry by the clerk after the issuing judge’s authority has expired can give effect as of the earlier date of issuance.

¶ 8. For purposes of argument only, we accept that since Judge Davis’s order was not filed and then entered until after the judge’s term expired, it was not effective. We start with that concession arguendo only because the clearer point is that a succeeding judge has the authority to adopt the findings of a prior judge. Milam v. Young, 203 Miss. 387, 391, 35 So.2d 67, 68 (1948). In Milam, a chancellor died before an order was entered but after he had written out and sent to the parties copies of the opinion and ruling. Id. at 390, 35 So.2d 67. The successor chancellor entered the order exactly as the previous chancellor had directed. The Supreme Court held that to be a valid order. Id. at 391, 35 So.2d at 68. In the order denying the motion to set aside summary judgment, Judge Smith specifically adopted Judge Davis’s findings of fact and conclusions of law as stated in his June 8, 1990 order. By doing so, the order was as valid as if it had been entered by Judge Davis before his temporary term ended.

¶ 9. Whether it was valid on the merits is our next issue.

2. Res Judicata.

¶ 10. The summary judgment found that Williams’s agreement in the inter-pleader suit to share the insurance benefits with her brothers was res judicata on the legal issues in this present suit. The judge made other dispositive findings as well, but we consider this one first.

¶ 11. There are two separate claims that Williams makes in this suit. One is a continuing insistence, despite the inter-pleader, that she is entitled to all of the insurance proceeds. The other claim is for punitive damages for the bad faith refusal to pay her initially. We look at each.

a. Contractual damages.

¶ 12. Monticello was granted summary judgment and dismissed in the interpleader action before a settlement agreement was reached between the siblings. The order dismissed Monticello without prejudice except on the claims for the policy proceeds paid into the court. Williams in the present suit requests compensatory damages in the amount of $35,000, the limit of the insurance policy.

¶ 13. Res judicata and its companion doctrine of collateral estoppel are similar but distinguishable. Each give finality to prior judgments when new suits seek to relitigate what has been settled.

¶ 14. Res judicata requires four identities: (1) subject matter; (2) cause of action; (3) parties; and (4) quality or character of person against whom the claim is made. Marcum v. Mississippi Valley Gas Co., 672 So.2d 730, 732-33 (Miss.1996).

¶ 15. The identities are fewer under collateral estoppel: “parties will be precluded from relitigating a specific issue actually litigated, determined by, and essential to the judgment in a former action, even though a different cause of action is the subject of the subsequent action.” Hollis v. Hollis, 650 So.2d 1371, 1377 (Miss.1995), quoting Dunaway v. W.H. Hopper & Assoc., Inc., 422 So.2d 749, 751 (Miss.1982). Whether identity of parties is always needed for collateral estoppel has been questioned, but need not be resolved here. Jeffrey Jackson and Mary Miller, Collateral Estoppel and Res Judicata^ 2 Encyclopedia of Mississippi Law § 14.4 (2001).

¶ 16. Both doctrines also require that the former litigation result in a final judgment on the merits. Little v. Clodfel-ter, 782 So.2d 175, 179 (Miss.App.2001). Summary judgment was granted in the interpleader to Monticello in February 1991, reserving the bad faith issue to Williams. That was a judgment on the merits that resolved Monticello’s liability for the insurance proceeds. Then in December 1991, the remaining parties— Williams and her three brothers — reached a settlement agreement. There is authority that a consent judgment has res judica-ta effect. Dunn v. BL Dev. Corp., 747 So.2d 284, 285 (Miss.Ct.App.1999), citing Guthrie v. Guthrie, 283 Miss. 550, 553, 102 So.2d 381, 383 (1958). However, there is also authority that a settlement does not satisfy the “actually litigated” standard for collateral estoppel, the reasoning being that what parties are willing to agree as a matter of balancing litigating risks and costs should not have the same effect as a court-entered judgment after a vigorous contest of the issues. Restatement (Second) of Judgments § 27 cmt. e (1982).

¶ 17. If the settlement includes specific disavowals of liability on all parties, the Restatement position may have greater cogency. Here, the final judgment in the interpleader action revealed an agreement by the four siblings to divide the insurance proceeds equally. The court order does not disclose whether there were denials of liability by the parties.

¶ 18. If the prerequisites are met, res judicata will bar litigating in a subsequent action all claims that were or might have been brought in a prior suit. Little v. V & G Welding Supply, Inc., 704 So.2d 1336, 1337 (Miss.1997). Collateral estop-pel only bars relitigation of issues that were actually decided and essential in the prior action. Hollis v. Hollis, 650 So.2d 1371, 1377 (Miss.1995).

¶ 19. We analyze the four identities for the present case and the earlier inter-pleader. The subject matter is the same: a claim for the proceeds of the insurance policy. In both actions, Williams claims that she as the named beneficiary was contractually entitled to the full amount of the proceeds, thereby making the cause of action the same. As to the character of the entity against whom the claim is brought, Monticello in both suits has been sued as the insurance company that issued the relevant policy and was obligated to pay benefits under it.

¶ 20. The one identity issue about which some dispute exists is whether both parties in the present suit were parties in the interpleader. Monticello was no longer a party at the conclusion of the suit, that is, in December 1991, but it was the interpleader plaintiff under Mississippi Rule of Civil Procedure 22. It was Monti-eello who joined Williams and her brothers as defendants. Monticello then moved to have the funds accepted and itself dismissed from further liability on the proceeds. Williams contested the motion, and sought to counterclaim for bad faith in initiating the interpleader and failing to pay all proceeds to her. The February 1991 judgment entered on the motion was therefore contested and resulted in the company’s dismissal with prejudice “to the extent of the policy proceeds which Monticello paid into court.” Williams did not appeal from that judgment. Monticello and Williams thus were both parties in the interpleader for purposes of determining whether that suit would resolve how the insurance proceeds should be distributed. Res judicata bars Williams’s continuing insistence that she is entitled to all the proceeds.

b. Punitive damages.

¶ 21. The interpleader judgment explicitly preserved Williams’s bad faith claim. Therefore res judicata does not bar the bad faith claim now. In fact, in the present suit claiming bad faith, Monticello’s motion for summary judgment alleged res judicata only as to the actual damage claim. The punitive damage claim was alleged to fail because there was no conduct by Monticello that could support the claim. That will now be examined.

S. Bad Faith

¶ 22. We review whether there was bad faith by Monticello when it filed an inter-pleader instead of paying all the proceeds to Williams. Monticello claims that they had multiple parties claiming the funds and made use of the action created for situations just as this.

¶ 23. Under Mississippi law, in order for a punitive damages claim against an insurer to go to a jury, a judge must find (1) that the insurance company did not have a “legitimate or arguable reason to deny payment of the claim” and (2) that the plaintiff made a “showing of malice, gross negligence, or wanton disregard of the rights of the insured.” Life & Cas. Ins. Co. of Tenn. v. Bristow, 529 So.2d 620, 624 (Miss.1988), cert. denied, 488 U.S. 1009, 109 S.Ct. 794, 102 L.Ed.2d 785 (1989). The Supreme Court has allowed punitive damages when a company withheld funds for eight months without reason. Travelers Indemnity Co. v. Wetherbee, 368 So.2d 829, 835 (Miss.1979). In addition, punitive damages were permitted when a claim was erroneously denied due to a known computer programming error that went uneorrected. Mutual Life Ins. Co. of New York v. Estate of Wesson, 517 So.2d 521, 528-29 (Miss.1987).

¶ 24. What does not support punitive damages is an insurance company’s reaching a good faith though incorrect decision in denying a claim. State Farm Mut. Auto. Ins. Co. v. Grimes, 722 So.2d 637, 641 (Miss.1998). In addition, when a legitimate dispute exists between the parties as to the amount due under the policy, the court has denied punitive damages. Cossitt v. Alfa Ins. Corp., 726 So.2d 132, 138-39 (Miss.1998). Where an insurance carrier denies or delays payment of a valid claim, punitive damages will not lie if the carrier has a reasonable cause for such denial or delay. Mutual Life Ins. Co., 517 So.2d at 528. The question here is whether Monticello’s actions and delay were reasonable.

¶ 25. Williams relies on a Supreme Court case that reversed summary judgment in favor of an insurance company that had earlier filed an interpleader action. Necaise v. U.S.AA. Cas. Co., 644 So.2d 253, 258 (Miss.1992). In Necaise, a man’s current wife had purchased insurance for approximately one half the value of the home of her husband. 644 So.2d at 255. The home was jointly owned by the husband and his former wife. Id. at 254. After a fire destroyed the home, the insurance company issued a check in the name of the husband, wife and former wife. Id. at 255. The currently married couple refused the check, demanding that the company issue a new check in their names only. Id. A suit was filed by the couple for bad faith. Id. at 254. The company counterclaimed in interpleader by depositing the funds with the clerk. Necaise, 644 So.2d at 254. By agreed order the former wife joined the action. Id. The chancellor found that the former wife was entitled to one half the proceeds due to her one half interest in the home. Id. at 257. From this ruling and a ruling in a separate action, the couple appealed. Id. at 254.

¶ 26. The Supreme Court found that the insurance company erred by including the former wife’s name on the check; the Court disagreed with the chancellor that the former wife was entitled to the proceeds; and most importantly here, the Court held that the interpleader did not insulate the insurance company from potential bad faith liability. Id. at 257. As part of its analysis, the Court concluded that insurance is not due to a person merely because he or she has an ownership interest in property. Id. That conclusion was derived from Sullivan v. Estate of Eason, 558 So.2d 830 (Miss.1990). In Sullivan, five siblings inherited property through intestate succession. Sullivan, 558 So.2d at 831. One sibling had purchased insurance for the property in her name. Id. After a fire destroyed the property, the company issued the check in all the heirs’ names, resulting in litigation. Id. at 831-32. There was evidence that the insured had purchased the policy with estate money with an agreement among the heirs as to the beneficiaries of the insurance. Id.

¶ 27. The Supreme Court adopted a test to find whether insurance proceeds should be shared by ones other than the named insured. The fact intensive test has these factors:

(1) whether the insurance was obtained for the sole benefit of the person who procured it; (2) whether by express or implied agreement the person who took out the insurance did so for the benefit of the owners of the other interests in the property; and (3) whether the owners of the other interests contributed to the cost of the insurance.

Id. at 844, quoting Summerlin v. Bowden, 353 So.2d 1175, 1179 (Ala.Civ.App.1978).

¶ 28. The Necaise court held that these Sullivan factors did not favor the former wife’s claim for a share of the proceeds. Necaise, 644 So.2d at 257. Among the reasons were that the current wife had purchased the policy for the couple’s benefit with her own money for approximately the value of the husband’s one-half interest in the property. Id. If a third party "wishes to claim a portion of the benefits under a policy issued to another, it is incumbent upon her to stake her claim, not on the insurance company” to stake it for her. Id. On rehearing, the court found that the company did not have a “reasonable basis” to fear liability from the former wife. Id. at 259.

¶ 29. In order to determine whether a bad faith issue exists here, we review the Sullivan factors as they appeared to Monticello immediately prior to the interpleader action. The policy had only one named insured, Williams. It was for almost the full value of the home, as an insurance adjuster found the value of the home to be $30,000; the insurance policy provided coverage of $25,000 for the dwelling and $10,000 for the contents. Thus, the policy was not insuring just Williams’s fractional interest as was the situation in Necaise. One month after the fire, Williams’s three brothers asserted their claim through an attorney who demanded the check be made payable to all the heirs. In Necaise, the insurance company itself raised the potential claim of the former wife. In addition it is undisputed that the company was informed that the brothers paid the first premium, though that assertion was contradicted by Williams. That too distinguishes Monticello’s situation from that facing the insurer in Necaise in which the named insured clearly paid the premium.

¶ 30. Under these circumstances, a reasonable claim by the brothers existed to share in the proceeds. Williams herself at some stage agreed to a joint check, only to rescind the offer on August 6, 1990. Then in a letter dated August 15,1990, Monticello’s attorney confirmed that he was informed that the brother’s had paid the initial premium. Two days later, Monticello filed an interpleader and deposited the funds for a determination of its distribution. Only three months passed between the date of the fire and the date the inter-pleader action was filed.

¶ 31. In these several ways, this suit is readily distinguishable from Necaise. We cannot find that Monticello’s actions exposed them to the possibility of punitive damages for bad faith in failing to pay Williams only. Under Sullivan, it was clear to Monticello that just who was entitled to the proceeds was a matter of legitimate dispute. That is exactly what inter-pleader is for.

¶ 32. We need not address the good faith reliance on advice of counsel issue, as the foregoing makes that issue immaterial.

¶ 33. Summary judgment was appropriate.

¶ 34. THE JUDGMENT OF COAHO-MA COUNTY CIRCUIT COURT IS AFFIRMED. APPELLANTS ARE TAXED WITH ALL COSTS OF THIS APPEAL.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, and CHANDLER, JJ, Concur.

BRANTLEY, J., Not Participating.


author: CHANDLER, J.,

text:
    Sheron EDWARDS a/k/a Sheron Bushea Edwards, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00858-COA.
    Court of Appeals of Mississippi.
    July 30, 2002.
    Rehearing Denied Nov. 19, 2002.
    Certiorari Denied Feb. 27, 2003.

      Stephanie L. Mallette, Greenville, attorney for appellant.
    Office of the Attorney General, by W. Glenn Watts, attorney for appellee.
    Before McMILLIN, C.J., MYERS, and CHANDLER, JJ.
   CHANDLER, J.,

for the court.

¶ 1. Sheron Edwards was tried for armed robbery and grand larceny before an Oktibbeha County Circuit Court jury. He was found guilty on both counts. Edwards was sentenced to twenty years for the armed robbery charge and five years for the grand larceny charge to be served consecutively both in the custody of the Mississippi Department of Corrections. Feeling aggrieved, Edwards appeals to this Court and makes two assignments of error. First, Edwards alleges that the trial court erred in denying his motion for a directed verdict or judgment notwithstanding the verdict. He also argues that the trial court erred in allowing a defense witness to mention a previous trial in which charges were prosecuted against Edwards.

FACTS

¶ 2. In the early morning hours of March 13, 1999, Kenneth Burns was returning to his home after a night spent watching a boxing match with Mends. Burns noticed a young man approaching him as he exited his vehicle. The man stepped close to Burns and asked him for directions. The man then pulled out a handgun and pressed it into Burns’s chest. Burns was told to empty his pockets. He handed the man his wallet, car keys, and a money clip. Burns was then instructed to kneel on the ground. While on his knees he was violently struck on the back of the head and fell face forward onto the concrete. Burns then heard a gun shot which made him think he had been shot. Burns saw the man who robbed him exit the parking lot in his vehicle. He then went to a neighbor’s house and asked them to call 911.

¶ 3. Mr. Vincent Forside, who lived on West Main Street in Starkville, testified to hearing screeching tires and seeing a vehicle traveling at an excessive rate of speed on his street. Forside saw the vehicle enter a ninety degree turn, lose control, and strike a light pole just off the road. Forside called 911 to report the accident and then ran to the vehicle to see if the driver or any occupants had been harmed. He found a young man in the driver’s seat who at first appeared to be dazed. For-side stated that the man became more aware and began searching the vehicle “as if he was looking for something in the backseat.” Forside then stated that the man “threw stuff in the wooded area along the road.”

¶ 4. Detective Lott with the Starkville Police Department responded to the scene of the accident. Officer Gandy arrived soon after Detective Lott. When the two approached the vehicle, they noticed a young man standing near the driver’s door. While there, police dispatch issued a call describing a man matching Edwards’s appearance as a suspect in a recent armed robbery. The burgundy and gold GMC matched the description of the vehicle reported stolen during the robbery. Lott and Gandy agreed that Edwards matched the description given of the suspect. Edwards was then arrested and placed in the backseat of Lott’s car.

¶5. Officer Edmonds of the Starkville Police Department responded to the call at Burns’s apartment. Edmonds told Burns that a vehicle matching the description he had given to the 911 operator was found wrecked just a few minutes after Burns notified the police of the robbery. Ed-monds took Burns to the scene of the wreck. At that time Burns identified the burgundy and gold GMC vehicle as the one stolen from him just a few minutes earlier. Edwards was removed from Lott’s vehicle and Burns identified him as the man who had robbed him and stolen his vehicle. When Lott removed Edwards from his car, he noticed a wallet on the floor board. A search of the wallet revealed Burns’s identification. Burns identified the wallet as the one taken from him during the robbery.

¶ 6. Officer Edmond returned to the scene of the crime when he transported Burns back to his home. At that time, Edmond searched the bushes surrounding the area where Burns indicated that the robbery took place. Edmond found a bullet casing which was later matched to the firearm found in Edwards’s possession at the time he was arrested.

¶ 7. Edwards was transported to the Starkville Police Department. The police found a set of keys on Edwards which Burns later identified as his car keys. Edwards was indicted for armed robbery and grand larceny. He was found guilty of both crimes.

LAW AND ANALYSIS

I. DID THE TRIAL COURT ERR IN DENYING EDWARDS’S MOTION FOR A DIRECTED VERDICT OR HIS MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT?

¶ 8. Edwards argues on appeal that the trial court erred in denying his motion for a directed verdict at the close of the State’s evidence and for denying his motion for judgment notwithstanding the verdict. He argues that the State failed to produce sufficient evidence to support a conviction against him.

¶ 9. Whether the evidence is legally sufficient is an argument that is raised by a motion for a directed verdict or a JNOV. McClain v. State, 625 So.2d 774, 781 (Miss.1993). In deciding whether the prosecution has presented sufficient evidence to sustain the verdict, the court should accept as true all credible evidence consistent with the defendant’s guilt and the State must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id. A reviewing court should only reverse where, with respect to one or more of the elements of the offense charged, the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty. Wetz v. State, 503 So.2d 803, 812 (Miss.1987).

¶ 10. Applying the legal standard recited above and considering the testimony given, the evidence presented at trial was sufficient to support the jury’s verdict. Burns testified that he was within arms length of Edwards at the time of the robbery and “looked him directly in the eye.” There were two streetlights near the crime scene. An eyewitness, Forside, testified that he observed the vehicle from the time it crashed into the light pole until the police arrived. He stated that at no time did he see anyone other than Edwards in or near the vehicle. Burns’s keys and wallet were both found in Edwards’s possession as was the gun that was used to rob Burns. This evidence is sufficient to support the jury’s verdict; as such, this assignment of error is without merit.

II. DID THE TRIAL COURT ERR IN ALLOWING A WITNESS TO MENTION A PREVIOUS TRIAL IN WHICH CHARGES WERE PROSECUTED AGAINST EDWARDS?

¶ 11. On appeal, Edwards argues that the trial court erred in allowing the State to impeach a witness, Cleveland Carlisle, with a transcript from a previous hearing in which Carlisle was also a witness. He maintains that the court should have applied a balancing test under Mississippi Rules of Evidence 403 and determined that mention of the previous trial was more prejudicial than probative. Edwards further argues that his counsel at trial was not allowed to state the grounds for her objection or make a record of the objection. Both of these statements are contradicted by the record.

¶ 12. At trial, counsel for Edwards objected to mention of the transcript from the previous hearing as a discovery violation. The trial court ruled that the transcript was used to impeach a defense witness concerning a prior inconsistent statement and overruled the objection.

¶ 13. This issue is subject to a procedural bar. An objection on one or more specific grounds at trial constitutes a waiver of all other grounds for objection on appeal. Gray v. State, 728 So.2d 36 (¶ 110) (Miss.1998). At trial, Edwards argued the State had committed a discovery violation; on appeal he alleges that impeachment of the witness by means of the transcript from a previous trial was prejudicial and should have been excluded pursuant to M.R.E. 403.

¶ 14. Notwithstanding the procedural bar, this issue is without merit. Mississippi Rules of Evidence 403 states in pertinent part “[ajlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury-” To decide whether evidence should be admitted, the trial court must conduct a balancing test to determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Sykes v. State, 749 So.2d 239(¶ 24) (Miss. Ct.App.1999). This balancing test is left to the trial court’s broad discretion. Id. This Court will not reverse the trial court’s decision unless there was an abuse of discretion. Id.

¶ 15. Cleveland Carlisle was asked on cross-examination by the State concerning a prior hearing because his testimony on direct differed greatly from his previous testimony at a trial in federal court in Oxford concerning the same matter. The State asked if he remembered testifying at “another hearing involving this matter in August of 1999.” To which, Carlisle replied, “[i]n Oxford?”

¶ 16. The State used the transcript from that previous trial to impeach Car-lisle’s testimony at the ongoing trial in state court. The State did not mention that the “hearing” was a trial in federal court in which Edwards was prosecuted for related charges. Edwards argues that because the federal courthouse is in Oxford, members of the jury could have deduced that Edwards had been previously tried in federal court on these charges.

¶ 17. The trial court did not abuse its discretion in allowing the State to use the transcript to impeach the witness. The transcript was a prior inconsistent statement given under oath at a trial or hearing. As such, it was properly used to impeach the witness pursuant to M.R.E. 801(d)(1).

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF COUNT ONE, ARMED ROBBERY, AND SENTENCE OF TWENTY YEARS TO RUN CONSECUTIVELY TO ANY PREVIOUSLY IMPOSED SENTENCE WITHOUT THE POSSIBILITY OF PAROLE; COUNT THREE, TAKING OF A MOTOR VEHICLE AND SENTENCE OF FIVE YEARS TO RUN CONCURRENTLY WITH THE SENTENCE IMPOSED IN COUNT ONE, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO OKTIB-BEHA COUNTY.

McMILLIN, C.J., KING AND SOUTH-WICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND BRANTLEY, JJ„ CONCUR.