source: Caselaw Access Project

author: CARLSON, Justice,

license: Public Domain

text:
    Nancy NECAISE, Individually and on Behalf of the Wrongful Death Beneficiaries of Charles Freeman, Deceased v. Matthew SACKS, M.D., and the Medical Oncology Group, P.A.
    No. 2002-CA-00140-SCT.
    Supreme Court of Mississippi.
    March 27, 2003.
    Robert w. Smith, Biloxi, for appellant.
    Joe R. Colingo, Kevin C. Bradley, Pas-cagoula, Joe Sam Owen, Gulfport, for ap-pellees.
    Before PITTMAN, C.J., WALLER AND CARLSON, JJ.
   CARLSON, Justice,

FOR THE COURT.

¶ 1. Aggrieved by the Hancock County Circuit Court’s dismissal of her medical malpractice suit against Matthew Sacks, M.D. (Dr. Sacks), and the Medical Oncology Group, P.A., (MOG), Nancy Necaise (Necaise) appeals to this Court. Finding reversible error, we reverse and remand this case to the trial court.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Nancy Necaise’s father, Charles Freeman (Freeman), was diagnosed with cancer in early 1998, and soon thereafter, he started chemotherapy treatment at MOG. For Freeman’s intravenous chemotherapy treatment, the medical personnel used Taxol, a highly toxic drug used in battling systemic cancer. While Freeman’s first treatment on January 22, 1998, was relatively uneventful, during his second treatment on February 12,1998, Freeman began to experience pain, swelling, and discoloration in the arm into which the chemical was being infused. Over the next several days, the skin on Freeman’s arm began to peel off and his arm became swollen to two or three times its normal size. As a result of what was characterized as a third degree chemical burn, Freeman had to undergo extensive treatment causing him to incur medical bills in excess of $170,000. Freeman was of the opinion that his injuries were a result of negligent chemotherapy treatment resulting in a chemical infiltration into the tissue of his arm, while Dr. Sacks and MOG opined that Freeman’s injuries most likely resulted from an adverse drug reaction.

¶ 3. On August 19, 1998, Freeman commenced his medical malpractice suit against Dr. Sacks and an unidentified nurse, Jane Doe I, in the Circuit Court of Hancock County. Over the next few months, responsive pleadings were filed, discovery was commenced, and Freeman’s attorney requested a trial setting.

¶ 4. Regrettably, Charles Freeman died from his cancer on January 9, 1999; however, as will be more fully hereinafter discussed, there was evidently no causal connection between any alleged medical negligence and Freeman’s death. On February 22, 1999, Necaise, through the same attorney who had commenced the lawsuit for Freeman, filed in the same action a Motion to Substitute Party Plaintiff, alleging that Freeman had initially filed the lawsuit; that Freeman died of cancer on January 9, 1999; that Miss. R. Civ. P. 25 allowed for a party to be substituted for a party who died subsequent to commencement of a civil action; and, that Necaise was the natural daughter of Freeman and “a representative and wrongful death beneficiary of [Freeman].” Judge John Whitfield by an agreed order signed on March 3, 1999, and duly entered on March 8, 1999, authorized Ne-caise to be substituted as a party pursuant to Miss. R. Civ. P. 25, and this order further provided, inter alia, that Necaise, “individually and on behalf of the wrongful death beneficiaries of [Freeman] is hereby substituted as the party plaintiff in this [action].” On June 16, 1999, a notice of trial setting was administratively entered by the court administrator; this notice set a trial date of November 1, 1999, before Judge Robert H. Walker. On July 20, 1999, Judge Walker entered a scheduling order which set out various deadlines and confirmed the November 1st trial date.

¶ 5. On September 7, 1999, in cause number 99-0689 on the docket of the Chancery Court of Hancock County, the chancellor entered a Judgment Granting Probate of Will and Letters Testamentary. This chancery court judgment found as a fact that Freeman had died with a will; that Freeman’s estate consisted only of a cause of action for “personal injuries and/or wrongful death;” that Freeman was survived only by Necaise; and, that prior to his death Freeman had entered into an employment contract with a law firm concerning his personal injury claim. This chancery court judgment likewise adjudicated, inter alia, that Freeman’s will be admitted to probate; that Necaise be appointed as executrix of Freeman’s estate; that the employment contract with the law firm be approved; and, that the law firm take all necessary action to preserve Freeman’s claim in behalf of the executrix and the estate, including the initiation of legal proceedings “against all necessary parties for the preservation of [the claim].”

¶ 6. Subsequent to the circuit court order substituting Necaise as a party, and the chancery court judgment appointing Necaise as the executrix of Freeman’s estate, and upon entry of a circuit court order authorizing the filing of an amended complaint, Necaise filed her First Amended Complaint on September 30, 1999. Notwithstanding Freeman’s intervening death since the commencement of the lawsuit, the amended complaint did not contain a wrongful death claim and in fact was remarkably similar to the original complaint. A paragraph-by-paragraph comparison of the original complaint and the first amended complaint reveals the following information: The introductory paragraph in both complaints states, “COMES NOW THE PLAINTIFF, Charles Freeman, and files his complaint.”, again, notwithstanding the fact that Freeman had died by the time of the filing of the first amended complaint; paragraph number one (1) of both complaints states, “Plaintiff is an adult resident citizen of Harrison County, First Judicial District.;” paragraph number two-A (2A) pertaining to Dr. Sacks is the same in both complaints; paragraph number two-B (2B) of the original complaint named Jane Doe as a defendant while paragraph number two-B (2B) of the amended complaint named MOG as a defendant; paragraph number three (3), setting out the alleged negligent actions of the defendants, is the same in both complaints; paragraph number four (4), setting out the causal connection between the alleged negligence and the damages, is the same in both complaints; paragraph number five-A (5A) of the original complaint set outs the alleged negligent acts of Nurse Doe, while paragraph number five-A (5A) of the amended complaint specifically names the nurse and alleges that she is an employee of MOG, but the alleged acts of negligence are the same in both complaints; paragraph number five-B (5B) of the original complaint sets out the alleged negligent acts of Dr. Sacks, while paragraph number five-B (5B) of the amended complaint charges both Dr. Sacks and MOG with negligence, but the alleged acts of negligence are the same in both complaints; paragraph number six (6) in both complaints allege that the nurse was acting under the direction and control of Dr. Sacks, and that Dr. Sacks was responsible for his nurse’s actions under the respondeat superior doctrine, with the only difference in the two paragraphs being that in the amended complaint, the nurse is specifically named and is specifically alleged to be Dr. Sacks’s employee; paragraph number seven (7), setting out Freeman’s injuries, is the same in both complaints; and, the ad damnum clauses in both complaints specifically request the same amount of damages. However, of particular note is one major difference between the two complaints. The original complaint was styled “Charles Freeman v. Matthews Sacks, M.D. and Jane Doe, I.” On the other hand, the first amended complaint was styled “Nancy Necaise, Individually and on Behalf of the Wrongful Death Beneficiaries of Charles Freeman, Deceased v. Matthew Sacks, M.D. and Medical Oncology Group, P.A.” On motion of the defendants, this case was continued from its scheduled trial date of November 1, 1999, and the trial was rescheduled for August 7, 2000.

¶ 7. Evidently, by May 24, 2000, after additional discovery and motion hearings, the defendants had become admittedly confused as to the nature of the litigation they were being called upon to defend. Was it a personal injury suit revived in Freeman’s behalf or was it a personal injury and wrongful death suit, and who were the parties? On that date, the defendants filed their Motion to Strike Wrongful Death Claim or in the Alternative, Motion to Continue. In this motion, the defendants referred to a pre-trial hearing before Judge Walker on August 20, 1999. The defendants set out in their motion a portion of the transcript from this hearing, and a review of not only the motion, but also the record before this Court, reveals that the following colloquy occurred between Judge Walker and counsel (actually we quote from the transcript a little more than what the defendants quote in their motion):

[DEFENSE COUNSEL]: He’s [Freeman’s] dead now. He was being treated for non-small cell lung cancer. He had cancer of the lungs in the past. Actually he had a portion of a lung removed. He developed cancer in his other lung, and was receiving treatment—
THE COURT: Is the plaintiff alleging any causation of the death in this case to this incident, Mr. Smith?
[PLAINTIFF’S COUNSEL]: No, Your Honor.
THE COURT: Okay.
[DEFENSE COUNSEL]: There was some testimony to that by the substituted plaintiff, the daughter of Mr. Freeman. Apparently that is not going to be asserted now, and that was one of the grounds for the motion for continuance.
THE COURT: [Plaintiffs counsel] says that’s not part of the damages requested.

We should remember here that this pretrial hearing occurred on August 20, 1999, more than one month prior to Necaise’s filing of her first amended complaint on September 30,1999. Additionally, on May 18, 2000, just a few days before the defendants’ filing of their motion to strike wrongful death claim, Necaise submitted her answers to the defendants’ third set of interrogatories, which answers included the following:

INTERROGATORY NO. 5: Please state whether the injuries set forth in your Complaint caused or contributed to the death of Charles Freeman. If your answer is yes, please identify what medical or other proof you have that the injuries complained of caused or contributed to Charles Freeman’s death.
ANSWER: My father’s death was caused by cancer. The IV extravasation injuries contributed to his death in that he was despondent, lost his fighting spirit and was unable to care for himself as well, as is documented in Garden Park and Memorial Hospital at Gulfport records.

Six days after the defendants had filed their motion to strike wrongful death claim or alternatively, to continue the trial of the case, Necaise, on May 30, 2000, filed her response to the defendants’ motion and stated the following:

1. There is not and never has been a wrongful death claim asserted herein. Defendant’s motion to strike is moot.
2. Defendant’s motion for continuance is their third motion for continuance and will no doubt be followed by more. The motion is likewise moot as there is no wrongful death claim on which to practice discovery.

The record is silent as to any trial court ruling on the defendants’ motion to strike the wrongful death claim, but the record does reveal that for various reasons, the case did not go to trial on August 7, 2000, as scheduled, but instead, the trial date was later reset for June 11, 2001, and then ultimately for August 27, 2001.

¶ 8. On the morning of trial, with over one hundred prospective jurors present for voir dire and jury selection, Sacks and MOG filed a motion to dismiss pursuant to Miss. R. Civ. P. 12(b)(6), 12(b)(7), & 19. In their motion, Sacks and MOG asserted that Necaise lacked standing to bring the suit for Freeman’s personal injuries because such a suit could only be maintained by Freeman’s estate; and, that even if Freeman’s estate were allowed to maintain a suit for Freeman’s personal injuries, the suit was barred by the applicable statutes of limitations. See Miss.Code Ann. § 15-1-36, as to medical negligence, and Miss. Code Ann. § 15-1-55 (estate savings statute). After hearing arguments in chambers prior to commencement of voir dire, the trial judge decided to dismiss the jurors, continue the trial, take the motion under advisement, and set deadlines for the plaintiffs reply to the defense motion and the defendants’ rebuttal in response to the plaintiffs reply.

¶ 9. On August 31, 2001, Necaise filed her response to the dismissal motion of Dr. Sacks and MOG, alleging inter alia that the defendants’ motion was untimely; that she had been substituted as a party plaintiff by court order after Freeman’s death; that the first amended complaint was filed only after she had been appointed by chancery court order to be the executrix of Freeman’s estate; that the defendants could not claim surprise by Necaise being involved in the litigation in her capacity as executrix of Freeman’s estate because such information was revealed to the defendants in interrogatory responses more than a year prior to the actual trial; that if there were any defect in the pleadings, such was cured by a liberal application of Miss. R. Civ. P. 15 providing for amendments to pleadings and a copy of such motion for leave to amend and proposed second amended complaint were attached as exhibits to the response; and, that a review of the second amended complaint would reveal that it “relates back” to the original pleading pursuant to Miss. R. Civ. P. 15(c), thus saving the case from being time-barred under the statutes of limitations. On September 7, 2001, Dr. Sacks and MOG responded to Necaise’s motion for leave to amend as well as to her response to their motion to dismiss..

¶ 10. By order dated January 2, 2002, and filed on January 3, 2002, the trial judge denied Necaise’s motion to file a second amended complaint and granted the dismissal motion of Dr. Sacks and MOG. Among the reasons for dismissal stated by the trial judge in his order were that (1) Necaise had abandoned her wrongful death claim, thus leaving only Freeman’s original claim for injuries and damages sustained during his lifetime, a claim which only Freeman’s estate, and not Necaise, individually, could pursue, and as such the complaint before the court failed to state a claim upon which relief could be granted [Miss. R. Civ. P. 12(b)(6)]; (2) although Necaise was the duly appointed executrix of Freeman’s estate, her failure to maintain the litigation in the name of the estate rendered the proceedings “a nullity”; (3) Necaise’s “individual pursuit” of Freeman’s personal injury claim would not toll the applicable statutes of limitations concerning any claim which could only properly be brought by the estate; and (4) any effort to then assert a personal injury claim on behalf of the estate would be futile due to the running of the applicable statutes of limitations.

¶ 11. Necaise states the issues to be as follows: (1) Whether the trial court’s dismissal of this action without allowance of reasonable time after objection to substitute the real party in interest violates Rules 15, 17 and 19 of the Mississippi Rules of Civil Procedure; and, (2) Whether the defendants’ motion to dismiss was untimely and waived any real party in interest objection. On the other hand Dr. Sacks and MOG state the issues to be as follows: (1) Wdiether the defendants’ motion to dismiss was timely; (2) Whether Nancy Necaise has standing to pursue an action for Charles Freeman’s personal injuries; (3) Whether the statute of limitations on any estate claim on behalf of Charles Freeman has expired; and, (4) Whether substitution of the estate of Charles Freeman is appropriate. In her rebuttal brief, responding to the brief of Dr. Sacks and MOG, Necaise states the remaining issues to be (3) Whether any statute of limitations bars a civil action for medical malpractice filed within four months of the date of the malpractice; and, (4) Whether any statute of limitations bars an action by an individual person who amends the complaint to plead her representative capacity as executrix.

STANDARD OF REVIEW

¶ 12. We apply the de novo standard when reviewing the granting of a Miss. R. Civ. P. 12(b)(6) motion. Arnona v. Smith, 749 So.2d 63, 65-66 (Miss.1999). As such, we sit in the same position as did the trial court. Furthermore, statutory interpretation is a question of law, and we also review questions of law de novo. Donald v. Amoco Prod. Co., 735 So.2d 161, 165 (Miss.1999).

DISCUSSION

I. WHETHER NANCY NECAISE HAS STANDING TO PURSUE AN ACTION FOR CHARLES FREEMAN’S PERSONAL INJURIES.

¶ 13. The central issue in this case is whether Necaise may maintain her deceased father’s personal injury claim, either in her individual capacity, or in her capacity as executrix of her father’s estate. Necaise claims that she can; Dr. Sacks and MOG claim that she cannot. Necaise chooses to support her position with claims of the applicability of Miss. R. Civ. P. 17(a) as it relates to joinder and substitution of the real party in interest; Miss. R. Civ. P. 19 as it relates to joinder of a party needed for just adjudication; and, Miss. R. Civ. P. 15 as it relates to liberal joinder and the “relation-back” provision, as well as certain case law. Necaise also attacks the lack of timeliness by the defendants in filing what turned out to be the dispositive motion to dismiss on the day of trial. On the other hand, Dr. Sacks and MOG cite certain statutes and case law to support their claims of Necaise’s lack of standing to individually pursue her deceased father’s personal injury claims; the running of the applicable statute of limitations; and, Ne-caise’s late efforts to finally get it right by way of maintaining her deceased father’s personal injury claims in the name of his estate.

¶ 14. Miss.Code Ann. § 91-7-233 (Rev. 1994) states, in pertinent part:

Executors, administrators, and temporary administrators may commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted.

¶ 15. Miss.Code Ann. § 91-7-237 states, in pertinent part:

When either of the parties to any personal action shall die before final judgment, the executor or administrator of such deceased party may prosecute or defend such action, and the court shall render judgment for or against the executor or administrator.

Additionally, Miss.Code Ann. § 15-1-36 (Supp.2002) states that medical malpractice claims must be brought within two (2) years from the date of the alleged negligent act or omission, while the estate savings statute, Miss.Code Ann. § 15-1-55 (Rev.1995), provides that the estate of a person who dies before the expiration of the applicable statute of limitations may sue or be sued after the running of the applicable statute and within one (1) year after the death of the person. Stated succinctly, in citing these four statutes and the cases of Berryhill v. Nichols, 171 Miss. 769, 158 So. 470 (1935), and, Owen v. Abraham, 233 Miss. 558, 102 So.2d 372 (1958), Dr. Sacks and MOG assert that Freeman’s personal injury claims could be maintained after his death only by Necaise as executrix of Freeman’s estate, and since she never did so, the claims are now barred under both the general medical malpractice statute of limitations and the estate savings statute.

¶ 16. In Berryhill, the next of kin of a man who had been accidentally shot and later died brought a medical malpractice suit against the attending physician. This Court held that there was insufficient evidence to show that the death was proximately caused by any negligence on the part of the physician, but this Court went on to state:

And as to any pain and suffering of the deceased endured by him between the injury and death and which may be shown was probably caused by the asserted negligence, that is an item which must be recovered, if at all, under section 1712, Code 1930, at a suit by the personal representative, not by the next of kin or heirs at law.

158 So. at 471. In Owen, Mitchell Owen’s wife sued him for divorce. After the hearing, the chancellor took the case under advisement for entry of a final decree in vacation. By the time the chancellor rendered his opinion, Owen had died. While the chancellor noted the fact of Owen’s death in his opinion, the chancellor still awarded alimony to Owen’s wife to be assessed against “the defendant and/or the defendant’s estate.” Owen’s counsel attempted an appeal to this Court, claiming that at the time of the chancellor’s entry of the decree against Owen and his estate, there was already a named executor of his estate as duly appointed by the chancery court, and that Owen’s wife had made no effort to properly revive the action against the executor. This Court found that it did not have jurisdiction to hear the appeal because the entry of “the final decree and subsequent proceedings amount[ed] to a nullity.” 233 Miss. at 561, 102 So.2d at 373. In reaching this conclusion, this Court quoted extensively from Griffith’s Mississippi Chancery Practice and stated:

Inasmuch as the defendant died before the chancellor reached a decision, the cause should have been revived against the duly acting executor.
Griffith’s Mississippi Chancery Practice, Section 591 says in part: ‘In order that there may be any decree for the complainant it must be shown in proof that he actually has the interest upon which he sues, and the defendant must be shown, at least by the pleadings, to have some germane litigious concern therein. It follows from this rule, even if there were no other, that litigation is not to be carried on by or against any deceased person. The impossibility of such a thing is apparent however upon its mere mention. There must be revivors in such suits or else further proceedings therein amount to nothing. Thus, if a defendant die during pendency of a suit and there is no revivor or amendment, but only an unwarranted effort to carry on the suit by substituting a new party to the suit, — not one claiming by or under the former defendant, — the proceeding is entirely erroneous.’ Section 620 of the same text says in part: ‘And likewise a decree rendered against a defendant after his death is void, if he was the sole defendant or was an indispensable party to the suit — although the interlocutory decree were rendered while he was alive.’

233 Miss. at 561, 102 So.2d at 373 (citations omitted).

¶ 17. Dr. Sacks and MOG also direct this Court to Wilks v. American Tobacco Co., 680 So.2d 839, 843 (Miss.1996), wherein this Court held in a wrongful death suit that the decedent’s wrongful death heirs were not entitled to recover the decedent’s life-time damages because they failed to alternatively pursue such a claim under Miss.Code Ann. § 91-7-233.

¶ 18. However, this case turns on a case decided by this Court just last year. In Richardson v. Methodist Hospital of Hattiesburg, Inc., 807 So.2d 1244 (Miss.2002), this Court was confronted with the propriety of the circuit judge’s grant of summary judgment in favor of the defendants as to the plaintiffs suit for personal injury and wrongful death. In Richardson, Vivian Wheeless was admitted to the hospital with a diagnosis of an intestinal hemorrhage, and she suffered a fatal stroke. Thereafter, Wheeless’s daughter, Linda Richardson, brought a personal injury and wrongful death action against the hospital. The suit was styled “Linda Richardson, Individually and on Behalf of the Wrongful Death Heirs of Vivian Wheeless, Deceased v. Methodist Hospital of Hattiesburg, Inc., Now Known as Wesley Health Center.” In Richardson, we readily acknowledged our holding in Wilks, and in so doing, stated:

Wesley argues that the claim for the pain and suffering as an element of the wrongful death action should likewise be denied pursuant to Wilks v. American Tobacco Co., 680 So.2d 839 (Miss.1996). In Wilks, the jury found that cigarette smoking did not proximately cause the decedent’s death. The heirs contended on appeal they were at least entitled to the decedent’s lifetime damages that the heirs believed were overwhelmingly proven to be caused by cigarette smoking. The heirs’ cause of action was exclusively under Mississippi’s wrongful death statute. We held the personal injury action could not be maintained where it was not alternatively claimed under Mississippi’s survival statute. Id at 843.

807 So.2d at 1247. We went on to hold in Richardson that the circuit judge appropriately granted summary judgment on Richardson’s wrongful death claim because Richardson’s designated expert was not qualified to testify as to causation relating to Wheeless’s death and any alleged deviations in nursing care; however, we likewise held that the circuit judge inappropriately granted summary judgment on Richardson’s personal injury claim relating to Wheeless’s pain and suffering prior to her death. Accordingly, we reversed the trial court judgment in favor of the hospital on Richardson’s claim for Whee-less’s pain and suffering and remanded that claim to the circuit court for a jury trial. 807 So.2d at 1247-48.

¶ 19. The facts of the case sub judice are similar to the facts in Richardson. In our ease today, Freeman, Necaise’s father, allegedly suffered chemical burns during chemotherapy treatment while under Dr. Sacks’s care at MOG, and commenced, during his lifetime, a personal injury/medical malpractice suit against Dr. Sacks and one of his nurses. While the actions of Necaise, or at least those of her attorneys, were legitimately a cause of some consternation on the part of Dr. Sacks and MOG and their attorneys when amended pleadings started reflecting the phrase “wrongful death beneficiaries,” and while Necaise did equivocate somewhat in deposition and interrogatory responses to the extent that she at least opined that there may have been some connection between the defendants’ alleged negligent actions and her father’s death, for the most part, Necaise, through her attorney, repeatedly informed the trial court and counsel, orally and in writing, basically that “there is not and never has been a wrongful death claim asserted herein.” After Freeman had commenced his medical malpractice suit, and subsequent to his death in January, 1999, the circuit court, in the same cause of action, signed an agreed order on March 3, 1999, directing that “Nancy Necaise, individually and on behalf of the wrongful death beneficiaries of Charles Freeman is hereby substituted as the party plaintiff in this civil action.” In September, 1999, the chancery court found as a fact that Freeman’s estate consisted solely of his cause of action for “personal injuries and/or wrongful death,” and that Necaise was Freeman’s sole survivor; therefore, Freeman’s will was admitted to probate and Necaise was appointed as executrix of her deceased father’s estate. Subsequent to this chancery court action, in the same month, Necaise then filed her first amended complaint in the same circuit court action initially commenced by her father during his lifetime.

¶ 20. Based on our decision in Richardson, admittedly rendered subsequent to the learned trial judge’s dismissal of this action, we find that Necaise is able to maintain this suit which was commenced by her father during his lifetime. Accordingly, we reverse the trial court’s grant of the defendants’ motion to dismiss pursuant to Miss. R. Civ. P. 12(b)(6).

¶ 21. Because our decision as to Issue I is dispositive, we need not discuss the remaining issues.

CONCLUSION

¶ 22. For the reasons herein stated, we find that the learned trial judge erred in granting the defendants’ motion to dismiss. Accordingly, we reverse the trial court’s judgment of dismissal and remand this case to the Circuit Court of Hancock County for proceedings consistent with this opinion.

¶ 23. REVERSED AND REMANDED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, EASLEY AND GRAVES, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. McRAE, P.J., NOT PARTICIPATING.

      . The chancery court judgment entered earlier that same month found as a fact that Ne-caise was residing in Kiln, Mississippi, which is in Hancock County. Again, Freeman was the named plaintiff in the original complaint, while Necaise was the plaintiff in the first amended complaint.

      . In his motion to continue this case from the November 1, 1999, trial date, Dr. Sacks, through counsel, alleged as one of the grounds the fact that Necaise’s deposition testimony revealed that Necaise was attempting to link her father's death to the injuries allegedly received during the chemotherapy treatment. More specifically, the August 2, 1999, motion for continuance alleged that "the deposition of [Necaise] revealed that [she] intends to link the death of [Freeman] to the injury he allegedly suffered during the treatment in question. Inasmuch as this case has become, at least in [Necaise’s] mind, a death case, the Defendant will be in need of a trial date beyond November 1, 1999, to adequately prepare.”

      . Necaise repealed this abandonment of any wrongful death claims in trial briefs submitted on August 23, 2000, and August 20, 2001.

      . We note that the language in Necaise’s proposed second amended complaint, which never was allowed to be filed by the trial court inasmuch as that court in due course granted the defendants' motion to dismiss, was significantly different than the language contained in the first two complaints. Among other things, the proposed second amended complaint named as plaintiff, "Nancy Necaise, Individually and on Behalf of the Wrongful Death Beneficiaries of Charles Freeman, Deceased and as Executrix of the Estate of Charles Freeman.” That language is basically repeated in the introductory paragraph. Paragraph One states that Necaise is an adult resident citizen of Hancock County, and that she is the daughter and sole heir of Freeman and the executrix of his estate. The remaining language in the proposed second amended complaint is identical to the language appearing in the first amended complaint, meaning that there was still no wrongful death claim, but instead a personal injury claim based on the alleged injuries and damages received and incurred by Freeman as a result of the alleged negligent administration of the intravenous chemotherapy treatment.

      . §' 1712 of the 1930 Code was the predecessor statute to § 609 of the 1942 Code and Miss.Code Ann. § 91-7-233 (Rev.1994).


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

text:
    MACK TRUCKS, INC. and Cummins Engine Company, Inc., v. Bobbi TACKETT, wrongful death beneficiary of Tony Joe Murphree.
    No. 98-CA-00419-SCT.
    Supreme Court of Mississippi.
    March 27, 2003.

      H. Mitchell Cowan, Joseph J. Stroble, Jackson, Michael D. Chase, Tupelo, L.F. Sams, William C. Spencer, Flowood, Pope Shannon Mallette, Oxford, attorneys for appellants.
    E. Farish Percy, Oxford, Gary L. Carna-than, Amory, Grady F. Tollison, Oxford, attorneys for appellee.
   ON MOTION FOR REHEARING

COBB, J.,

for the Court.

¶ 1. The motion for rehearing is granted. The original opinions are withdrawn, and this opinion substituted therefor.

¶ 2. This products liability case presents issues of liability as well as apportionment of any such liability under our allocation of fault statute, Miss.Code Ann. § 85-5-7 (1999). We dispose of the liability issues summarily and affirm. Plaintiff, on cross-appeal, presses an issue regarding punitive damages with respect to which we also affirm the trial court summarily. As to allocation of fault, we conclude that allocation of fault to immune employers is consistent with § 85-5-7 and required under Estate of Hunter v. General Motors Corp., 729 So.2d 1264 (Miss.1999), provided that they are not held liable for damages. We conclude that the trial court properly found the remaining non-settling defendants liable for half the recoverable damages under § 85-5-7(2). Finally, we reform the judgment to properly reflect the fault assessed by the jury. In accordance with these conclusions, we affirm in part and reverse and remand in part.

I.

¶ 3. This case is an appeal of a wrongful death action arising from the death of an employee of Wilburn Oil Company (‘Wilburn Oil”). The plaintiff is Bobbi Tackett (“Tackett”), only daughter and wrongful death beneficiary of Tony Joe Murphree, the employee who died as a result of an explosion while unloading fuel for his employer. On May 12, 1993, Murphree and Roger Angle, another Wilburn Oil employee, each had truckloads of fuel on two separate trucks, one a Mack powered by a Mack engine, the other a Freightliner powered by a Cummins engine. Murphree was the Mack truck driver. Angle was the Freightliner driver.

¶ 4. Contrary to company policy, but consistent with at least one prior occasion, Murphree and Angle decided to offload both trucks at once. Fuel was unloaded from both trucks using hoses and a “T” connector. The fuel was driven by a pump powered by a power-take-off (PTO) on the Mack truck, necessitating that the Mack engine be left running. The Freightliner engine was also left running, though this was not necessary since only the Mack truck was used to pump the fuel to the above ground storage tanks. The Freight-liner engine should not have been left running under ordinary safety procedures.

¶ 5. Just prior to the explosion Angle was on top of his tanker attached to the Freightliner, looking down into the tanker compartment, checking to see how much fuel was unloaded. Angle said it was at this point that he looked over and saw gas spraying in the air. This was approximately ten to fifteen minutes into the offloading process. The gasoline spray was coming up between the two trucks, toward the Freightliner on which Angle stood. The spray was like a mist from a garden hose when a thumb is held over it. Upon seeing the spraying fuel, Angle shouted to Murphree to cut off the truck or get off the truck as he ran back toward the rear of his tanker. At this point Angle jumped from the tanker, and one of the trucks exploded. Prior to the explosion he last saw Murphree running toward the Freightliner. After the explosion Angle heard Murphree scream, but he could not see him. Angle went around the side of the truck looking for Murphree when a second explosion occurred. Thereafter, Murphree walked out between the two trucks on fire. He received burns to 99 percent of his body and died in a hospital on May 14,1993.

¶ 6. Tackett filed this wrongful death action in the Lee County Circuit Court seeking damages from defendants Mack Trucks, Inc. (“Mack”), which built the Mack truck; Cummins Engine Company, Inc. (“Cummins”), which manufactured the diesel engine in the Freightliner truck; and Freightliner Corporation, which manufactured the Freightliner truck. Tackett claims that the defendants caused her father’s death and are liable to her based on theories of products liability and failure to warn. Tackett claims that the engines in both trucks were defectively designed because they did not contain an automatic shutoff device and that the trucks’ air intake systems should have been fitted with a safety device which would close it off if the engine exceeded a certain speed. Tackett also claims that there were inadequate warnings of the danger concerning (i) the alleged danger posed by the operation of a diesel engine in an environment where there are or can be combustible vapors; (ii) the alleged need for safety shutdown devices, and/or (iii) the appropriate response in the event of an engine overspeed or runaway.

¶ 7. Tackett’s theory is that one or both of the engines caused the fire in which Murphree was severely burned and died. Tackett argued that the engine of either the Mack or the Freightliner, or both, began to run away because of the ingested volatile fumes, and the runaway caused the explosion and fire. “Runaway” or “over-speeding” is a phenomenon whereby a diesel engine sucks in a volatile gas or vapor through its air intake system. In such a situation the engine will continue to run even if there is no diesel going into it. The only way to stop the engine is to stop the air or stop the fuel. In such a situation the idle can increase dramatically.

¶ 8. John Wiss, Tackett’s expert in the fields of mechanical engineering and fire origin or causation, testified that in his opinion both engines “spun up” after ingesting gasoline vapors through the air intakes. Wiss testified that in his opinion the probable cause of the fire was that one of the engines, either one, caused the fire by running away, overheating its exhaust pipe, and probably blowing flames through the exhaust igniting the gasoline. Wiss also testified that in Ms opinion both the Mack diesel engine in the Mack truck and the Cummins diesel engine in the Freight-liner were unreasonably dangerous for the environment that they were in.

¶ 9. During depositions Angle testified he was “99 percent positive” that Mur-phree got the Freightliner shut down. However, Angle testified at trial that he heard one of the trucks blow up, but did not see which one. Angle assumed it was the Mack but only if Murphree had managed to shut down the Freightliner; he could not say for certain which truck started the fire.

¶ 10. The defendants offered other theories regarding how the fire may have been ignited. Dr. Edward Cox, a metallurgy expert retained by Cummins, testified that he did not find any internal damage to either engine or evidence that either engine oversped. Other possible ignition sources suggested by the defendants are either the electrical system or hot engine or exhaust parts. Dr. Cox testified that in his opinion the source of the fire was from a spark originating from a battery cable on the Mack truck. The defendants also argued that the proximate cause of the fire was the leaking fuel, caused by a worn hose or coupling, and the negligence of the employees, but not the trucks or their diesel engines.

¶ 11. Gilbert Rhoades, an expert in accident reconstruction and mechanical engineering retained by Cummins, testified that in his opinion the ignition source was the shorted out battery cables on the Mack truck. Rhoades testified that he found no signs that the Cummins engine ever operated at above normal temperatures or ov-ersped, and that in his opinion the Cum-mins engine was not a factor in causing the fire.

¶ 12. Curtis Mark Siemers, Freightliner’s expert in fuel hauling, handling, and transportation, testified that the connection between the fuel hoses, the two trucks, and the storage tanks was inherently unsafe, because not all hoses, connections and fittings could be monitored at the same time. He also stated that it was dangerous for the two trucks to be parked next to each other while unloading. Siem-ers also testified that one of the couplings at the hose had a shim in it to make a tighter connection, indicating that the coupling was worn, and that to use such a shim was not a safe procedure.

¶ 13. Dr. John Moskwa, Mack’s expert in mechanical engineering and diesel, also testified that there was no evidence of overspeed in the Mack truck and that the Mack was the least likely to overspeed due to its dual air intake design and the fact that it was operating under a load, driving the PTO to pump the fuel. Dr. Moskwa also testified that he found no evidence of overspeeding in the Cummins engine. He testified that in his opinion neither the Mack or the Cummins engines was defective or unreasonably dangerous.

¶ 14. George Casallas, Mack’s expert in electrical engineering, fire reconstruction, and forensic engineering, testified that in his opinion the fire originated in the Freightliner truck, that it was not over-speeding that caused the fire, and that in his experience an overspeeding engine would not cause an instantaneous fire such as the one in this case. Casallas stated that the fire was hotter, longer in duration, and more intense in the Freightliner.

¶ 15. Tackett reached a settlement with Freightliner just before closing arguments. She had earlier settled with other defendants. The case was submitted to the jury against Mack and Cummins, and the jury was instructed to allocate percentages of fault as between Murphree, Wilburn Oil, Mack and Cummins. The jury found from the preponderance of the evidence that both defendants — Cummins and Mack— were guilty of fault on either of Tackett’s claims, which was the proximate cause of Murphree’s death. The jury further found that negligence on the part of Wilburn Oil and Murphree himself were also proximate causes of Murphree’s death. The jury then made an allocation of fault as follows: Murphree, 60%; Wilburn Oil, 39%; Mack, %%; and Cummins,%%.

¶ 16. The jury assessed total damages of $1.8 million. In formulating the judgment the trial court applied the settlement proceeds from the other defendants, totaling $830,000, to reduce the damages assessed to $1,470,000. After deducting 60% of that amount for the fault attributed to Murphree, it arrived at recoverable damages of $588,000. Since the fault attributed to Wilburn Oil was uncollectible due to the employer’s immunity under our workers’ compensation law, Mack and Cummins were determined to be jointly and severally liable to the extent necessary to allow a recovery of 50% of recoverable damages, to wit, $294,000. The trial court then allocated the $294,000 between Mack and Cummins in proportion to their relative percentages of fault, that is, a ratio of 3 to 1, and entered judgment against Mack for $220,500 and against Cummins for $73,500.

¶ 17. On appeal, the defendants argue that their products were not defectively designed, that they had no duty to install an air intake safety device, and that there was no evidence presented which would support the proposition that the use of such a device would have prevented the fire. The defendants further argue that they were improperly held liable for the employer’s share of fault and, in any event, that the method of deducting the settlement was unlawful. Mack further contends, all else failing, that the method of apportionment of the joint and several liability as between Cummins and it Was unlawful.

¶ 18. Tackett argues that the engine overspeeding phenomenon was known to the industry and that the defendants had a duty to warn of the danger and to install a safety shut-off device. Tackett cross-appeals asserting that she should have been allowed to argue punitive damages to the jury.

II.

¶ 19. After careful consideration of the briefs and the record, we treat the liability issues summarily.

a.

¶ 20. This case involved a battle of experts regarding whether either or both engines in question were defectively designed for failure to include an automatic air intake shutdown device to prevent “overspeeding,” whether there was a failure to adequately warn of the danger from overspeeding and whether either or both of these failures proximately caused the accident. We conclude that there was sufficient evidence to present a jury question as to each issue.

Once the jury has returned a verdict in a civil case, we are not at liberty to direct that judgment be entered contrary to that verdict short of a conclusion on our part that, given the evidence as a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found.

Bell v. City of Bay St. Louis, 467 So.2d 657, 660 (Miss.1985).

¶ 21. The defendants argue that Hall v. Mississippi Chemical Express, Inc., 528 So.2d 796 (Miss.1988), is controlling Mississippi precedent for the proposition that both the truck and the diesel engine were not defective as a matter of law. That case, however, turned on the level of proof before the Court at that time. The conclusion reached in that case is not binding upon this Court in its review of a different record.

¶ 22. Accordingly, we affirm the action of the trial court in accepting the verdict and refusing to set aside the verdict of the jury.

b.

¶ 23. Tackett contends that she should have been allowed to present the issue of punitive damages to the jury. Our review convinces us that the trial court did not err in refusing to submit this issue to the jury in that there was no clear and convincing evidence of malice or gross negligence. Miss.Code Ann. § 11-1-65(1) (Rev.2002.)

III.

¶ 24. The defendants claim that the court erred in allocating liability by attributing that portion of the fault allocated to Wilburn Oil to them collectively and, in any event, by improperly deducting the settlement proceeds from the entire assessment of damages. Mack also contends that there was an improper allocation as between it and Cummins.

a.

¶ 25. Tackett suggests that Wilburn Oil should never have been included in the allocation of fault and, therefore, that the trial court properly re-allocated the jury’s assessment against Wilburn Oil to the defendants. She argues that employers, immune by virtue of our workers’ compensation law, are not parties or potential parties subject to historical joint and several liability in tort for injuries to their employees and, as such, should not be included in an equation designed to apportion fault only for purposes of imposing joint and several liability. We agree with Tackett’s overall result, though not with her theory.

¶ 26. In Estate of Hunter v. General Motors Corp., 729 So.2d 1264 (Miss.1999), this Court held that “party” in § 85-5-7(7) “refers to any participant to an occurrence which gives rise to a lawsuit, and not merely the parties to a particular lawsuit or trial.” Id. at 1276 (emphasis added). That ruling was “based on sound considerations of judicial fairness,” id. at 1275 (referring to Florida holding adopted in Estate of Hunter). We held that “part/’ in the statute swept broadly enough to bring in entities which would not or could not have been “parties to a lawsuit,” thus including immune parties along with everybody else under the sun. Id. at 1273. Indeed, this Court declared:

This State’s system of civil justice is based upon the premise that all parties to a lawsuit should be given an opportunity to present their versions of a case to a jury, and the interpretation of § 85-5-7 urged by the plaintiffs [i.e., excluding those parties not in the suit] would seriously infringe upon a defendant’s rights in this regard in many cases.

Id. at 1274 (emphasis added). Nor does the fact that § 85-5-7 preserves all preexisting immunities speak to the present issue: even where fault is allocated for purposes of determining a third party’s fault, the employer is just as immune as before. Indeed, the language protecting immune parties may be interpreted as being motivated by the statute’s extremely broad phrase “each party alleged to be at fault.” Fault and liability are not synonyms. “Fault” is defined by § 85-5-7 as “an act or omission.” Immunity from liability does not prevent an immune party from acting or omitting to act. Rather, immunity shields that party from any liability stemming from that act or omission. There is nothing logically or legally inconsistent about allocating fault but shielding immune parties from liability for that fault. And there is no reason to imagine that the Legislature did not intend fault to be allocated against immune parties, insofar as that allocation can be of no detriment to those parties.

¶ 27. We must acknowledge our opinion in Accu-Fab & Construction, Inc. v. Ladner, 778 So.2d 766 (Miss.2001), in which this Court (in dicta) reached the conclusion that Tackett urges with regard to allocation of fault to immune employers. Having noted Estate of Hunter’s relevance to the issue, we went on to distinguish it as follows:

¶ 16. Our decision in Estate of Hunter relied in part on a law review article, Jonathan Cardi, Apportioning Responsibility to Immune Nonparties: An Argument Based on Comparative Responsibility and the Proposed Restatement (Third) of Torts, 82 Iowa L.Rev. 1293 (1997). In this article, Cardi discussed two approaches to handling the problem. He concluded that the better of the two approaches is to exclude the immune party from apportionment. Id. at 1331-36.
¶ 17. When the Connecticut Supreme Court addressed the issue, it also found that exclusion of the immune party from apportionment was the best approach. The Court further found that its decision was consistent with the majority of other jurisdictions which have decided the issue. See Durniak v. August Winter & Sons, Inc., 222 Conn. 775, 610 A.2d 1277 (1992). We agree with the foregoing authorities that exclusion of the immune party from the apportionment process is the best approach.

Ladner, 778 So.2d at 771. Our reliance on Cardi and Dumiak has been rightly criticized: (1) Cardi’s article specifically ex-eluded workers’ compensation immunity from its analysis and (2) Dumiak specifically reserved the question before this Court in Ladner, i.e., the situation where “the defendant, having filed a general denial, sought to make an evidentiary showing that it was the employer’s conduct rather than the defendant’s conduct that had proximately caused the employee’s injuries”; in such a case, the Dumiak court noted, “a different result might follow.” Durniak, 610 A.2d at 1280-81 n. 5 (citing Williams v. Union Carbide Corp., 734 S.W.2d 699, 703 (Tex.Ct.App.1987)). See Robert B. Ireland, III, Comment, Modified Joint and Several Liability in Mississippi: The Absent Settling Tortfeasor and the Immune Employer, 70 Miss. L.J. 821, 839 & nn. 74-7 (2000) (making the above criticisms in the course of critiquing Lad-ner and the original opinion in this case). The result of immunizing employers from fault as well as from liability is that third parties pick up the tab for the employer’s fault, potentially paying more than their share in order to make up for the excluded employer. The dissenting opinion in the Court of Appeals’ opinion in Ladner bears attentive reading:

The question becomes whether the injured plaintiff must see his potential recovery diminished by an assignment of fault to his immune employer or whether a third party defendant may be made to respond in damages in an amount that exceeds that defendant’s proportionate share of fault in causing the injury. In my view, the more equitable result is to permit allocation of fault to the exempt employer. While this diminishes the injured party’s ultimate recovery in the tort action, the injured party has already obtained or may, post verdict, seek recovery under the compensation law from his employer. This right of recovery under workers’ compensation law is specifically intended to replace the previously-existing common law right of recovery against the employer in tort.

Accu-Fab & Constr., Inc. v. Ladner, No. 96 CA 00692 COA, at ¶ 51, — So.2d —, —, 2000 WL 274291 (Miss.Ct.App. Mar. 14, 2000) (McMillin, C.J., dissenting) (all emphasis added).

¶ 28. To immunize employers from fault allocation in third-party tort suits would go against the spirit of the bargain between employers and employees that underlies workers’ compensation; instead, the third party would pay the employer’s cost of compensation, and the employee would have the possibility of recovering in tort for his employer’s fault, since that would then be allocated to the third party. This certainly would benefit employers, and to some extent plaintiffs — but third parties should not be assessed to supplement our system of workers’ compensation. To the extent that Accu-Fab may be construed as stating that immune parties may not be assessed fault (as opposed to liability) under § 85-5-7, therefore, that opinion is overruled. We note, however, that the allocation of fault to Wilburn Oil does not directly change the result in this case, which is why we said we agree with Tackett’s result. Although Mack and Cummins were assessed only a single percent of fault between them, they remain jointly and severally liable for fault up to 50% under § 85-5-7. Whatever the equity or inequity of this result (and we notice that under the amended § 85-5-7, supra n. 1, their fault would be confined to the 1% assessed by the jury), that was the law at the time of the accident, and that is the result we are bound to impose.

b.

¶ 29. The defendants claim that even if they are deemed liable for the portion of fault attributed to Wilburn Oil, the trial court erred in computing their level of liability by deducting the settlement amount from the assessment of damages before reducing that assessment for the allocation of fault as between the plaintiffs decedent and defendants. They would have applied the fault attributed to plaintiffs decedent to reduce the damages to $720,000 and then applied the statutory 50% joint and several rule to that amount. From the resulting $360,000, they would deduct the $330,000 paid by the other defendants to leave $30,000 for them to pay.

¶ 30. They argue that this result would still cause them to pay more than the collective 1% allocated’ to them, that is, $18,000. They suggest that for this reason our decision in McBride v. Chevron U.S.A., 673 So.2d 372 (Miss.1996) is distinguishable. In McBride we upheld the settlement-first method used by the trial court here, where the issue put to the jury involved only an allocation of fault as between the plaintiff and non-settling defendants. That is in fact what happened here, with the additional factor of the allocation to the immune employer, which does not affect the analysis. Since the jury did not have the option of assessing fault against the settling defendants, the trial court deducted the total amount of the settlements from the award, as dictated in McBride:

This opinion is limited, however, to cases in which, as here, the trial court instructed the jury to consider only the relative culpabilities of the plaintiff and the non-settling defendant(s) in apportioning fault under comparative negligence principles.

Id. at 380.

¶ 31. However, the trial court did not have available to it this Court’s decision in Estate of Hunter, in which we stated:

§ 85-5-7(7) provides that the trier of fact should allocate fault to each party “alleged to be at fault.” There is no indication that the Legislature intended to reserve for plaintiffs the sole and exclusive right to make allegations of fault before a jury and to deprive defendants of the opportunity to persuade a jury that fault for a given accident lies elsewhere.

729 So.2d at 1273-74. It is evident from the facts recounted above that Mack’s expert Casallas opined that Freightliner’s truck was at fault. But in their briefs before this Court, neither defendant assigns any error, even though Mack had objected at trial to the exclusion of Freightliner from allocation. It is well established that an appellant must brief an issue for it to be reviewed on appeal. Smith v. Dorsey, 599 So.2d 529, 532 (Miss.1992). The issue thus is not before this Court, unless we choose to invoke plain error. Taking into account judicial economy, the expense to all parties of remounting a new trial, and the length of time that the wrongful death beneficiary has waited for her relief, we do not choose to invoke that exception to our normal rules. No question of fundamental fairness appears to arise. This Court will not be more diligent in protection of the defendants’ rights than they themselves choose to be. On the facts of this case, the trial court’s use of the settlement-first method of McBride was not reversible error.

c.

¶ 32. Finally, it is contended that the trial court erred as between Mack and Cummins by allocating their liability for the fault attributed to Wilburn Oil as well as their joint and several liability to reach the 50% goal proportionately in accordance with the jury allocation of fault to them respectively. We agree. Allocation of liability (as opposed to fault) is governed by § 85-5-7.

¶ 33. The judgment should be reformed to find that Mack is individually liable for $11,025 (its %% of $1,470,000) and Cum-mins for $3,675 (its %% of $1,470,000). Because they are jointly and severally liable for the entirety of the $294,000 (50% of recoverable damages), assuming each pays its individual percentage, their total payments should be $150,675 for Mack ($139,-650 + $11,025) and $143,325 for Cummins ($139,650 + $3,675).

IV.

¶ 34. For the foregoing reasons, the judgment of the circuit court is hereby affirmed in all respects except as to the allocation of liability as between Mack and Cummins. The judgment is reversed and remanded to the trial court for reformation as indicated herein.

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

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

McRAE, P.J.,

Dissenting:

¶ 36. I dissent to the majority’s finding that the $830,000 settlement between Tackett and Freightliner should be deducted from the total verdict of $1.8 million and to the majority’s allocation of apportionment between Mack and Cummins.

¶ 37. The majority finds that Tackett’s $330,000 settlement with Freightliner should be deducted from the total verdict of $1.8 million. Freightliner was not apportioned any fault; therefore the settlement between Freightliner and Tackett should not be a relevant factor in computing apportionment of damages. Nowhere in Miss.Code Ann. § 85-5-7 (1999) does the Legislature address the deduction of settlements from jury verdicts when a defendant has not been apportioned fault by a jury. By deducting the settlement from the judgment, the majority is essentially holding Freightliner at fault with no justification or jury finding of apportionment.

¶ 38. As the majority correctly found, Wilburn Oil, an immune tortfeasor, cannot be apportioned liability for the purposes of joint and several liability. With that being said, the majority seems to throw to the wind the jury’s 39% finding of fault of Wilburn Oil. Where did this figure disappear to in the majority’s equations? Either this case needs to be remanded for a jury determination without the apportionment of fault of Wilburn Oil or this Court needs to allocate the 39% to Mack and Cummins according to their 3 to 1 fault ratio, as found by the jury. The math would look like this:

¶ 39. For these reasons, I respectfully dissent.

DIAZ AND EASLEY, JJ., JOIN THIS OPINION.

      . We note that the Legislature has recently amended § 85-5-7 to include the following language:
      Except as provided in subsection (6) of this section, in any action involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each joint tort-fea-sor, including named parties and absent tort-feasors, without regard to whether the joint tort-feasor is immune from damages. For noneconomic damages, a defendant’s liability shall be several only. For economic damages, for any defendant whose fault is determined to be less than thirty percent (30%), liability shall be several only and for any defendant whose fault is determined to be thirty percent (30%) or more, liability shall be joint and several only to the extent necessary for the person suffering injury, death or loss to recover fifty percent (50%) of his recoverable damages. Fault allocated under this subsection to an immune tort-feasor or a tort-feasor whose liability is limited by law shall not be reallocated to any other tort-feasor.
      2002 Miss. Laws 3d ex. sess. ch. 4, § 3 (H.B.19) (to be codified as Miss.Code Ann. § 85-5-7(8)) (emphasis added). While one could argue that the Legislature’s amendment demonstrates that the previous law did permit reallocation and forbid assessing fault to an immune employer, we consider that the statutory provision’s already cited with regard to fault assessment, together with the elementary difference between fault and liability, support the counter-argument that the Legislature acted only to emphasize its original intent. See also USPCI of Miss., Inc. v. State ex rel. McGowan, 688 So.2d 783, 787 (Miss.1997) (“When cases are in the bosom of this Court and there is involved a statute that is modified prior to a final decision of this Court, we take that modification into consideration.”) (quoting Bell v. Mitchell, 592 So.2d 528 (Miss.1991)).

      . The holding in Accu-Fab was predicated on the controlling precedents of federal case law, since Ladner was. a beneficiary under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. Accu-Fab, 778 So.2d at 769-70. Estate of Hunter was therefore not applicable; nevertheless, we went on to state: "Furthermore, we would reach the same conclusion even if the Longshoremen’s and Harbor Workers' Compensation Act was not implicated.” Id. at 770. Thus, the remarks about Estate of Hunter were dicta, and the present opinion does not impugn the correctness of the holding in Accu-Fab.

      . Cummins argues that joint and several liability is imposed only up to 50% of the "recoverable damages” under § 85-5-7(2), and that since damages are not recoverable against Wilburn Oil, 39% of the damages should be subtracted before the 50% that Mack and Cummins must meet can be calculated. But "[rjecoverable damages are the total damages minus any damages allocated to other parties.” Classic Coach, Inc. v. Johnson, 823 So.2d 517, 520 (Miss.2002). Fault, not damages, was allocated to the immune employer. Hence there are no damages allocated to Wilburn Oil that must be subtracted from the total damages awarded.
      The fact that the defendants cannot seek contribution against Wilburn Oil leaves them in no worse condition than any other tortfea-sors whose fellow tortfeasors turn out to be judgment-proof.

      . Freightliner participated in drafting jury instructions and settled on the morning of the day that the trial court instructed the jury. The discussion then went as follows:
      THE COURT: The form of the verdict.
      [CUMMINS]: It probably should be to take Freightliner out, because I think the appropriate result would be either allocation or credit and ...
      [TACKETT]: I think — I think this is covered in a Mississippi Supreme Court decision. I can remember the justices — I think it has to be out for consistency, and they would be entitled to credit, of course.
      THE COURT: You all have a form of the verdict?
      [CUMMINS]: Just have to strike Freight-liner out of it, don’t we?
      [TACKETT]: Yes, sir. That complicated form, Your Honor, we’ll have to take Freightliner out.
      (OFF RECORD.)
      [MACK:] Your Honor, I’d like the record to reflect that Mack stands by its position on allocation that we previously expressed with regard to absent and settling defendants. We do not withdraw our verdict form.
      This "previously expressed” position appears to be where Mack’s counsel asks “for the record to be clear that Mack has requested allocation to [two other settling defendants], and I want the record to be clear that I’m not withdrawing my request for allocation.”
      Mack in its brief complains about Wilburn Oil’s fault being "allocated” to Mack (which it was not). It does not challenge the trial court's non-allocation to Freightliner or the other settling defendants.


author: COBB, JUSTICE,

text:
    Thomas Lee ROBISON v. Carol Denise Robison LANFORD.
    No. 1999-CT-01836-SCT.
    Supreme Court of Mississippi.
    April 3, 2003.

      Jefferson Davis Gilder, Southaven, for appellant.
    Kinney M. Swain, Greenville, for appel-lee.
   COBB, JUSTICE,

FOR THE COURT:

¶ 1. At issue in this appeal is whether a record of in-chambers discussions with children must be made by the trial judge. We grant certiorari because this is an issue of first impression and one of broad public importance, as children are often interviewed by judges off-the-record, and frequently these in-chambers discussions weigh heavily in the trial court’s decision. We affirm the Court of Appeals’ reversal of the chancellor’s decision and remand with instructions regarding the conduct of additional proceedings.

FACTS

¶ 2. Carol and Thomas Robison divorced in 1993 and agreed to joint legal custody of their daughter, Brittany, who was to live with Thomas nine months of the year and with Carol the remaining three months. In 1997 Thomas filed a motion to modify custody in order to obtain sole custody of Brittany. Carol answered and filed a cross-motion seeking sole custody. The dispute was settled by a consent modification decree in December 1998, which left custody unchanged but clarified visitation.

¶ 3. Soon thereafter, Carol filed a new petition to modify custody, citing the finding of two small bruises on Brittany’s buttocks. The bruises were the result of a spanking given by Thomas. The matter was referred to Department of Human Services (DHS) for an investigation into possible child abuse. DHS conducted a detailed study of the living environments of both Carol and Thomas and concluded that both parents would provide a stable environment for the child.

¶ 4. A hearing was conducted by the chancellor in July 1999. She reviewed the DHS home studies’ results and heard testimony from all parties, including an in-chambers, off-the-record interview with Brittany. The chancellor found it would be in the best interest of the child for Carol to have physical custody. Thomas appealed.

¶ 5. The Court of Appeals remanded for additional development of the record, asking that the chancellor:

make such findings of fact as she finds appropriate to explain the evidence that she found to justify a change in custody. If weight was given to what Brittany stated in chambers, then that became evidence that the parties and this appellate court cannot review since it is not in the record. A new and transcribed interview with Brittany would be necessary, held under such restrictions as are acceptable to the chancellor and the parties that still would allow us to review a record of what Brittany says.

Robison v. Lanford, No.1999-CA-01836-COA, 2001 WL 714794 at ¶24 (Miss. Ct. App. June 26, 2001) (“Robison I”). The chancellor did not conduct any further hearing or interview, and in her Findings on Remand stated that she “weighted] the testimony and evidence presented and the Court’s conversation in chambers with the minor child” and “found without a doubt that the child’s custody should be awarded to the mother.” She went on to add that “[a]ll this Court will disclose regarding the off-the-record conversation with [Brittany] is that it was relevant.” She refused to provide any information gathered in the conversation or to take any additional steps to provide any evidence of that conversation or to hold a new. transcribed interview as suggested by the Court of Appeals.

¶ 6. The chancellor also erroneously stated that Thomas had objected to another interview with Brittany. Based on that statement, the Court of Appeals found the issue had been waived by Thomas, the party alleging error, and affirmed the chancellor’s decision. Robison v. Lanford, No.1999-CA-01836-COA (Miss.Ct.App. Dec. 4, 2001) (“Robison II”).

¶ 7. Thomas filed a motion for rehearing and submitted a letter from his attorney to the chancellor, written after the COA opinion but before her findings on remand, which clearly stated that Thomas did not object to another in-camera interview with Brittany, but rather that he objected only if the interview was to be off the record. The Court of Appeals granted Thomas’s motion for rehearing, withdrew its former opinion and, on March 19, 2002, entered its opinion reversing the judgment of the chancellor and remanding the matter for additional proceedings regarding custody. Robison v. Lanford, 822 So.2d 1034 (Miss.Ct.App.2002) (“Robison III”). The Court of Appeals stated that “[t]aking an unduly independent approach to protecting [Brittany’s] best interest, the chancellor has not allowed a record to be made of the basis of [her] decision. We do not want this tug and pull between the two courts to distract either court from the issues of the child’s welfare. Therefore, taking into account the long passage of time since the initial modification decision, and factoring in our reluctance to make a final decision here on appeal that would be so centrally affected by this institutional disagreement, we remand for further proceedings,” at ¶ 24, at which “[a] record of all evidence acquired must be made.” Id. at ¶ 33.

¶ 8. From that decision, Carol filed a petition for certiorari and we granted her petition, although we agree with the reasoning of the Court of Appeals, in order to include proper procedures for conducting the in-chambers conference.

STANDARD OF REVIEW

¶ 9. The standard of review in child custody cases is narrow. Reversal of a chancellor’s judgment requires that the chancellor be manifestly wrong or have “applied an erroneous legal standard.” Lee v. Lee, 798 So.2d 1284, 1288 (Miss.2001) (citing Williams v. Williams, 656 So.2d 325, 330 (Miss.1995)). An appellate court is to affirm findings of fact by chancellors in domestic cases when they are “supported by substantial evidence unless the chancellor abused [her] discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Holloman v. Holloman, 691 So.2d 897, 898 (Miss.1996). It is the role of the chancellor to ascertain whether witnesses and evidence are credible and the weight to give each. Chamblee v. Chamblee, 637 So.2d 850, 860 (Miss.1994). Let us remember, it is the responsibility of this Court, like the chancellor, to make the best interest of the child our “polestar” consideration. Hensarling v. Hensarling, 824 So.2d 583, 587 (Miss.2002).

DISCUSSION

I. WHETHER, BY CONSENTING TO THE IN-CHAMBERS INTERVIEW BY THE COURT, THE PARTIES WAIVED ANY OBJECTIONS TO THE COURT’S RULINGS OR FINDINGS OF FACT BASED UPON THE IN-CHAMBERS INTERVIEW WITH THE CHILD.

A. Whether waiver prevents appellate review.

¶ 10. The agreement of counsel and chancellor to the in-chambers interview with Brittany does not waive the issue for appellate review. It is essential that appellate courts have a complete and accurate record when reviewing child custody judgments.

¶ 11. In Dykes v. Dykes, 488 So.2d 368, 371 (La.Ct.App.1986), a Louisiana appellate court stated that “even though the presence of counsel was waived ... with no record having been made of the proceeding we are without means [to] review ... the reliability of any stated preferences as to custody [by the children].” In Dykes the counsel invited the trial court to interview in-chamber the children and waived any objection to said interview. The court acknowledged that such in-chambers interviews are important in “custody proceedings to relieve the child of the possibly intimidating presence of the mother and father”; however, the court went on to say “such an interview must be conducted with a reporter present and a record made of the questioning by the court and the answers of the [children].” Id.

¶ 12. In an Arkansas case, the transcript of two minor children’s testimony, in keeping with an agreement by the parties and representations made by the trial judge to these children at the time they were interviewed in chambers, was sealed. The appellate court ordered unsealing of the record, finding that Ark.Code Ann. § 16-64-129(a)(2) and Administrative Order Number 4:

appear to countenance a waiver of the record by the parties. However, for the following reason this would not appear to be a satisfactory solution to the problem of allowing children to testify with confidentiality. If the parties agree to waive a record and permit the child or children to be interviewed privately by the trial judge, and the aggrieved parent desires to appeal, the absence of a record virtually renders the judge’s decision irreversible.

McNair v. Johnson, 75 Ark.App. 261, 57 S.W.3d 742, 744 (2001).

¶ 13. Here, there is no dispute that Thomas, Carol and respective counsel agreed to the off-the-record interview of Brittany. Ordinarily a waiver between two parties would preclude that issue from appellate review, but when the waiver concerns the best interest of a child, we will not allow it to prevent appellate review, especially where no guardian ad litem was appointed to protect the child’s best interest. The concern of this Court is that, although the chancellor admittedly relied on the in-chambers interview to make her decision she made no findings on the record concerning that interview, even after the Court of Appeals instructed her to do so. She stated: “[a]ll this Court will disclose regarding the off-the-record conversation with [Brittany] is that it was relevant.” While the stipulation would ordinarily waive any objection to the lack of a record, we find that the need for a record to enable meaningful appellate review outweighs any need to find waiver here.

¶ 14. The chancellor first notes in her Findings on Remand, that Thomas’s remarriage was a substantial change in circumstances. This Court has long held that remarriage itself does not constitute a material change in circumstances that would justify a change of custody. Allen v. Allen, 243 Miss. 23, 33, 136 So.2d 627, 632 (1962). At the time of the hearing, Thomas had been remarried almost five years. Thomas’s wife testified that she is very close to Brittany and is her cheer-leading coach. At the time of the December 1998 Consent Modification Decree Thomas was remarried. Custody should not be changed unless there has been a material change which “adversely affects the child’s welfare occurring since the original decree.” Kavanaugh v. Carraway, 435 So.2d 697, 699 (Miss.1983).

¶ 15. The chancellor also noted that Thomas’s “drinking, temper and inappropriate discipline were red flags to the Court that the child’s custody should be changed.” Carol, Sonia (one of Carol’s friends), and Carol’s mother provided testimony to support Carol’s motion for modification; each testifying that Thomas was a heavy drinker or had a drinking problem. However, none of them had ever seen him drink excessively and none had actually seen him drink in years. The chancellor must weigh the credibility of witnesses and take into account any bias motives a witness may have. Chamblee, 637 So.2d at 860. Taking the testimony as the chancellor did, as believable, it only shows that at some time Thomas drank excessively but does not indicate any danger to himself or the children. As for the “inappropriate discipline” that was a reference to the bruises that Carol discovered on Brittany. Carol and her witnesses testified that the bruising was more extensive than just on her buttocks. This testimony-contradicted that of the examining physician Dr. Wheelis. There was no other evidence presented that indicated previous abuse by Thomas. “[A]n isolated incident, e.g., an unwarranted striking of a child, does not in and of itself justify a change in custody.” Tucker v. Tucker, 453 So.2d 1294, 1297 (Miss.1984). Even taking all these things together, there is little to indicate a material change in circumstances that adversely affected Brittany’s welfare.

¶ 16. In addition, the chancellor failed to use the correct standard of review for a child custody modification. The chancellor stated, “[sjince the original custody agreement between the parties, Mr. Robison has remarried and has also undertaken the responsibility of raising two step-children. Therefore there is a substantial change in circumstances if in fact this is the right legal standard to be applied in a child custody situation.” (emphasis added). In proceedings to modify custody, “the prerequisites [are] (1) proving a material change in circumstances which adversely affects the welfare of the child and (2) finding that the best interest of the child requires the change of custody.” Brocato v. Brocato, 731 So.2d 1138, 1141 (Miss.1999) (citing Smith v. Jones, 654 So.2d 480, 486 (Miss.1995)). The burden of proof is on the movant. Id. The Court of Appeals was correct when it stated “[t]he evidence in the record is sparse to support that there was a material change in circumstances adverse to the interest of the child, or that the mother’s receiving custody was in the child’s best interest.” Robison III, 822 So.2d at 1037.

¶ 17. We cannot properly review a chancellor’s judgment without full knowledge of all the evidence the chancellor considered when making the judgment. The in-chambers interview, and the chancellor’s continuing refusal to reveal any of the content of that interview, prevents this Court from having a full review of the evidence the chancellor used in making her decision. However, from the record as it exists before us, it appears that there was no material change adversely affecting Brittany. A “substantial change in circumstances” is not enough for a modification of custody lacking some adverse result for the child, and the record shows nothing warranting a change in custody.

B. Whether the in-chambers interview should be made part of the record.

¶ 18. The lack of supporting evidence in the record leads to the real issue, whether courts must make a record of in-chambers conversations with children. Because this Court has not previously addressed the necessity for making a record of in-chambers conversations with minor children, we look to our sister states for guidance. The best analysis is found in Watermeier v. Watermeier, 462 So.2d 1272, 1274 (La.Ct.App.1985), in which the Louisiana Court of Appeals, Fifth Circuit, addressing the question of whether a record should be made of a judge’s in-chambers interview, opined as follows:

We have given this matter grave consideration and, whereas we are impressed by the very plausible argument of counsel for respondent that an interview by the judge alone (without a record being made and without the ominous presence of parents and counsel), would relieve the child of fear and tension so that he would be more inclined to talk freely and truthfully, we cannot agree. To do so would do violence to the basic concerns of our adversary system because the attorneys and parties, as well as the appellate court, would be forced to trust completely and without reservation the discretion of the trial judge as to the propriety of Ms questions, his assessment of the veracity of the answers, and his entire judgment without ever knowing what was told to him. Such answers could well be the basis of his ruling. In addition, there would be no way for a party to ever contest, disapprove, or argue on appeal about any statement or accusation, no matter how wild or false, that the child may have made (perhaps in his fancy) — unless he knows what the child said to the judge.

See also Weaver v. Weaver, 824 So.2d 438 (La.Ct.App.2002); Hicks v. Hicks, 733 So.2d 1261 (La.Ct.App.1999); Dykes v. Dykes, 488 So.2d 368 (La.Ct.App.1986). The absence of a record of the conversation “makes impossible our ability to thoroughly and properly review the record of the trial between the parties.” Hicks, 733 So.2d at 1267.

¶ 19. In Georgia, not only has this problem been addressed in the Uniform Superior Court Rules, but the Court of Appeals of Georgia has also commented on and affirmed the importance of making a finding on the record regarding such in-chambers conversations. See Uniform Superior Court Rules 24.1 et seq., 24.5(B); Williams v. Stepler, 221 Ga.App. 338, 471 S.E.2d 284 (1996). A trial court’s refusal to make a record of a “private conversation” between the court and the child “left the father with no means of knowing the basis for any findings the court might make.” Williams, 471 S.E.2d at 286 (Beasley, C.J., specially concurring). The court held “the trial court erred in issuing an order containing findings based in part on an interview with a child which was not recorded ... [such] proceedings were fatally flawed....” Id. Of great importance to the court was the purpose of the recor-dation, which was to “preserve the court’s interview with the child, and the child’s statements to the court.” Id.

¶20. Likewise, the Illinois Marriage and Dissolution of Marriage Act sets out guidelines for in-chambers interviews of children in custody proceedings. 750 Ill. Comp. Stat. 5/640(a) (West 1996). “The court shall cause a court reporter to be present who shall make a complete record of the interview instantaneously to be part of the record in the case.” Id. In an Illinois case, one party was prevented from being present during the in-chambers interview because said party was a pro se litigant. However, because the interview was recorded by the court reporter and made a part of the record, the court was able to properly determine that there was no prejudice to the party. In re Marriage of Knoche 322 Ill.App.3d 297, 255 Ill.Dec. 716, 750 N.E.2d 297, 302-03 (2001).

¶ 21. We agree with our sister states that a record of in-chambers interviews with children must be made and become a part of the record. We set forth the following procedure to be employed by courts dealing with in-chambers interviews of children. A record must be made by a court reporter physically present during the in-chambers interview. We are mindful that a child may be uncomfortable in an in-chambers interview with even one adult, and that discomfort might be exacerbated by the presence of a second adult with the attendant equipment of a court reporter. However, we are confident that the chancellors in our state will be able provide an atmosphere in which the child is able to converse freely with the chancellor, without attention being drawn to the reporter. It will be at the court’s discretion whether to seal the interview, which may by order of the trial court or an appellate court be unsealed for review.

II. WHETHER A GUARDIAN AD LITEM WAS REQUIRED.

¶ 22. Because the child’s best interest is our “polestar” consideration, the importance of guardian ad litem appointments in child custody proceedings cannot be overemphasized. In any proceeding regarding a change of custody or visitation we must be mindful of the child’s best interest. Miss.Code Ann. § 9-5-89 (Rev. 2002) provides in pertinent part:

The court may appoint a guardian ad litem to any infant or defendant of unsound mind, and allow him suitable compensation payable out of the estate of such party, but the appointment shall not be made except when the court shall consider it necessary for the protection of the interest of such defendant; and a decree or judgment of any court shall not be void or erroneous because of the failure to have a guardian ad litem.

The appointment of a guardian ad litem allows for the child to be represented and for the child’s voice to be heard by the court through an independent party.

¶ 23. In child custody cases where allegations of abuse are at issue, it is mandatory that a guardian ad litem be appointed. Miss.Code Ann. § 93-5-23 (Supp.2002) provides in pertinent part:

The court may investigate, hear and make a determination in a custody action when a charge of abuse and/or neglect arises in the course of a custody action as provided in Section 43-21-151, and in such cases the court shall appoint a guardian ad litem for the child as provided under Section 43-21-121, who shall be an attorney.

¶ 24. Carol alleged physical abuse by Thomas in her petition for a change of custody. The Chancellor ordered the Department of Human Services to investigate these allegations, but did not appoint a guardian ad litem for Brittany. Unless the allegation of child abuse is withdrawn, the chancellor should appoint a guardian ad litem prior to the hearing which we order today.

CONCLUSION

¶ 25. The Court of Appeals is affirmed in its reversal of the chancery court. On remand, the chancellor shall conduct additional proceedings in accord with this opinion, to determine whether custody should be modified. A record of all evidence acquired must be made. Any in-chambers conversations with Brittany or any other witnesses must be held with a court reporter present to record the in-chambers proceedings. The chancellor may, in her discretion, seal the transcribed record of the in-chambers conversations in accord with existing court procedures. The sealed record may be unsealed only upon order of the trial court or an appellate court.

¶ 26. COURT OF APPEALS’ JUDGMENT AFFIRMED, AND CHANCERY COURT’S JUDGMENT REVERSED AND REMANDED.

PITTMAN, C.J., SMITH, P.J., WALLER, DIAZ, EASLEY, CARLSON AND GRAVES, JJ, CONCUR. McRAE, P.J., CONCURS IN RESULT ONLY.

      . Dr. Micheál Wheelis examined Brittany, on March 27, 1999, in the Emergency Department of North Mississippi Medical Center, in Tupelo, Mississippi. In deposition testimony, he stated that Brittany was brought in at 1:00 a.m. by her mother to be examined. Dr. Wheelis found 2 bruises on Brittany’s buttocks, measuring approximately 6 centimeters in diameter. He also testified that the bruises were most likely made by a hand or paddle. Dr. Wheelis stated “[i]t looked like it was a pretty good spanking.” He continued that since the spanking took place a few days earlier and left bruises it warranted someone looking into the situation. Dr. Wheelis found no other signs of abuse or neglect on Brittany.

      . The chancellor stated "[in weighing the testimony and evidence presented and the Court’s conversation in chambers with the minor child, this court found without a doubt that the child’s custody should be awarded to the mother.]”

      . The Illinois rule also provides that counsel for the parties shall be present. We, however, do not adopt that provision as a part of our procedures adopted herein.