author: CARLSON, Justice, for the Court: McRAE, Presiding Justice,

text:
    Joseph WISE, Charlene C. Wise and Elizabeth Ramsey Wise, Minor, By and Through Her Mother and Next Friend, Charlene C. Wise v. UNITED SERVICES AUTOMOBILE ASSOCIATION.
    No. 2002-CA-01020-SCT.
    Supreme Court of Mississippi.
    Oct. 9, 2003.
    Rehearing Denied Dec. 31, 2003.

      Jennifer Ingram Wilkinson, Carroll H. Ingram, Hattiesburg, Marcus Alfred Treadway, Thomas G. Lilly, Jackson, Attorneys for Appellants.
    Joseph W. McDowell, Jackson, Attorney for Appellee.
    Before SMITH, P.J., WALLER and CARLSON, JJ.
   CARLSON, Justice, for the Court:

¶ 1. United Services Automobile Association (USAA) was granted summary judgment pursuant to Miss.Code Ann. § 83-ll-103(c) (Rev.1999) after the circuit court determined there was no uninsured/under-insured coverage available. Joseph Wise, his wife, Charlene C. Wise, and their daughter, Elizabeth Ramsey Wise, (collectively the ‘Wises”) appeal the ruling of the circuit court. Finding USAA’s motion for summary judgment was properly granted, we affirm the judgment of the Circuit Court of the First Judicial District of Hinds County.

FACTS AND PROCEEDINGS IN THE CIRCUIT COURT

¶ 2. On October 11, 1996, Joseph Wise, his wife, Charlene, and their daughter, Elizabeth, were pedestrians crossing Grey-mont Avenue in Jackson after leaving the State Fair. Joseph and Charlene were struck by a pickup truck driven by Alfred Larry Aswell and owned by Steven Bostic. Joseph and Charlene both allege to have suffered severe physical and emotional injuries, Elizabeth, who was not struck, witnessed the collision. Before the collision, Aswell and Bostic had been patrons at the bar in the former Ramada Inn Coliseum. After allowing Bostic to pay his bar tab of nineteen beers, Aswell left in Bostic’s truck which he had been driving for several months.

¶ 3. At the time of the accident, Joseph Wise had an insurance policy issued by USAA insuring three separate vehicles with uninsured motorist bodily injury limits of $100,000 per person and $200,000 per accident. The parties agree there is “stacked” uninsured/underinsured motorist coverage applicable to each injured party in the amounts of $300,000 per person and $600,000 per accident. Aswell was insured under Bostic’s policy with USF & G, which provided a single liability limit of $300,000.

¶ 4. The Wises filed suit against Aswell, Bostic, Steel Service Corporation (Aswell’s employer), Peoples Security Life Insurance Company, Inc. (owner of the Ramada Coliseum bar), JMH Operating Company, Inc. and American General Hospitality, Inc. (operators of the bar). The Wises settled their claims against Bostic for the full amount of his $300,000 single per accident limit USF & G policy covering his vehicle. After the settlement, the Wises reduced the original demand made upon USAA for the stacked UM/UIM per accident limit of $600,000, since more than one person suffered injuries, to $300,000. The Wises also settled them claims against Steel Service for $4,000, even though both Aswell and Steel Service contended Aswell was not acting in the course and scope of his business. After the Wises settled their claims against the bar defendants, the amount of which has not been disclosed due to a confidentiality agreement, they informed USAA that the amount of the settlement exceeded USAA’s UM coverage of $600,000. However, because they had not been fully compensated for their injuries, the Wises continued to seek $300,000 in uninsured motorist benefits from USAA. Aswell, who had no insurance coverage in his name, still remains a defendant in the case.

¶ 5. USAA was joined as a defendant after the Wises filed their third amended complaint on June 25,1999. On December 19, 2001, USAA filed a motion for summary judgment, arguing that if the Wises received a settlement amount in excess of USAA’s $600,000 per accident limit, then nothing was due or owing from USAA. USAA claimed the non-duplication provision under the policy’s UM coverage would provide USAA with a limits offset regardless of whether the Wises had been fully compensated for their injuries. On April 12, 2002, the trial court granted the motion for summary judgment in favor of USAA, holding there was no UM/UIM coverage claim available to the Wises. Pursuant to Miss. R. Civ. P. 54(b), the trial court entered an order on May 16, 2002, certifying its previous order of summary judgment as a final judgment. On June 14, 2002, the Wises timely appealed to this Court.

DISCUSSION

¶ 6. This Court employs a de novo standard in reviewing a lower court’s grant of summary judgment. Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 65 (Miss.1988). Summary judgment may only be granted where there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law. M.R.C.P. 56(c). The trial court must carefully review all eviden-tiary matters in the light most favorable to the non-moving party. Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983). If in this view, the moving party is entitled to judgment as a matter of law, summary judgment should be granted. Id.

I. WHETHER THE PER PERSON LIMIT OR THE PER ACCIDENT LIMIT APPLIES IN DETERMINING IF THERE IS AN UNINSURED/UNDERINSURED MOTOR VEHICLE, WHERE THE ACCIDENT INVOLVES MULTIPLE CLAIMS UNDER ONE UM POLICY.

¶7. The Wises argue the trial court improperly adopted USAA’s argument that the tortfeasor vehicle was not under-insured by comparing the liability limit of the tortfeasor’s policy with the per person limit of the injured insureds’ UM coverage, and thus committed reversible error. The Wises contend that the proper course of action would have been for the trial court to have used the per accident limit of the injured insureds’ UM coverage because there were two or more injured insureds. The Wises do admit that the trial judge did not expressly state in his order granting summary judgment in favor of USAA that the tortfeasor vehicle was not under-insured; however, the Wises state it is obvious that the trial court came to this conclusion by comparing the $300,000 single liability limit of Bostic’s USF & G policy to the $300,000 per person limit of USAA’s policy. The Wises also contend this was the position advanced by USAA in its brief in support of its motion for summary judgment.

¶ 8. USAA argues this Court must compare each of the injured insured’s available UM7UIM limits to the $300,000 limits available under the tortfeasor’s automobile policy. Because each injured insured has potentially $300,000 in per person limits available under the USAA policy compared to the $300,000 limits available under the tortfeasor’s automobile policy, no injúred insured has a UM/UIM claim because there is no uninsured motor vehicle as defined by law. USAA argues the Wises confuse this issue by comparing the stacked UM limits to the amount “actually available to the insured” by considering the per accident limits. USAA claims this argument has been rejected numerous times by this Court.

¶ 9. In granting summary judgment in favor of USAA, the trial judge stated:

Based upon the definition of “uninsured motor vehicle” in § 83 — 11—101 (c) (iii) Miss.Code Ann. (1999), the “limits versus limits” standard required by the statute and undisputed facts in this case, and applicable law, there is no uninsured/under insured coverage claim available to the Plaintiffs. See Wickline v. United States Fidelity & Guaranty Co., 530 So.2d 708 (Miss.1988), Cossitt v. Federated Guar. Mut. Ins. Co., 541 So.2d 436, 440 (Miss.1989), Dixie Insurance Company v. State Farm Mutual Insurance Co., 614 So.2d 918 (Miss.1992), Guardianship of Lacy v. Allstate Insurance Co., 649 So.2d 195 (Miss.1995), and Fidelity and Guaranty Underwriters, Inc. v. Earnest, 699 So.2d 585 (Miss.1997). .

Because there were no genuine issues of material fact, the trial court found USAA was entitled to judgment as a matter of law. The trial court also found that in light of its ruling, USAA had an arguable reason to deny coverage to the Wises; therefore, the Wises had no valid bad faith claim against USAA.

¶ 10. It is undisputed that the Wises had UM coverage limits of $300,000 per person and $600,000 per accident. It is also undisputed that Bostic’s vehicle was covered by a USF & G single limit liability policy of $300,000. The question this Court must answer is in determining whether a vehicle is an uninsured vehicle pursuant to statute, which amount is used when multiple claimants are involved-the per person or the per accident limit?

¶ 11. It has been well established by this Court that before the UM/UIM provisions of a policy can be invoked, it must first be determined if the tortfeasor vehicle is an “uninsured motor vehicle.” The definition of “uninsured motor vehicle” is set out in Miss.Code Ann. § 83-11-103 (Rev.1999):

(c) The term “uninsured motor vehicle” shall mean:
(iii) An insured motor vehicle, when the liability insurer of such vehicle has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist coverage....

In Wickline v. U.S. Fidelity & Guar. Co., 530 So.2d 708, 713 (Miss.1988), this Court held:

The Mississippi statutory definition of uninsured motor vehicle, as amended to incorporate the underinsured concept, compares the limits of the tortfeasor’s liability coverage to “the limits applicable to the injured person provided under his uninsured motorist coverage.” Miss. Code Ann. § 83 — 11—103(c)(iii) (Supp. 1972) [emphasis added]. Whether the UM coverage of various policies and vehicles is “applicable to the injured person” must be determined in accordance with established Mississippi uninsured motorist law.

Again, this Court must determine what amounts are “applicable to the injured person.”

¶ 12. In Wickline, Stacy Wickline was killed when the car in which she was a passenger collided with another vehicle parked on the side of the road. Id. at 710. Immediately after this accident Stacy’s survivors received $10,000 from USF & G, the insurance carrier for the owner of the car in which Stacy was a passenger, as the limits of its liability per person coverage. Id. However, the survivors filed suit alleging each beneficiary was entitled to the “maximum per person uninsured motorist coverages on the four [ ] vehicles under the USF & G policy, totaling $80,000.” Id. The trial court denied this stacking and further held that the survivors were “ ‘insureds’ under the uninsured motorist provision of the USF & G policy applicable to the [car - in which Stacy was a passenger] and that under the terms of the policy, each was entitled to $10,000, a total of $20,000, which USF & G could not reduce by the $10,000 coverage paid under the liability provision of the same policy.” Id. at 711.

¶ 13. This Court first had to determine whether the vehicle was an uninsured/un-derinsured motor vehicle.

For the uninsured underinsured motorist provisions of the U.S.F. & G. policy [to] come into play, the [vehicle] must be an “uninsured motor vehicle” as defined in the statute. The answer to this question is determined by comparing the amount of uninsured motorist coverage available to the amount of liability insurance available.

Id. at 712. This Court stated that pursuant to the Mississippi UM statute as amended “stacking of the injured person’s limits is allowed for the purpose of qualifying the tortfeasor as an uninsured motorist.” Id. at 713.

If an injured person is insured under more than one policy of uninsured motorist insurance, the limits of each such policy are “applicable” to him. Harthcock v. State Farm Mutual Automobile Insurance Company, 248 So.2d 456 (Miss.1971). If he is injured while riding as a passenger, the uninsured motorist coverage of the vehicle in which he is riding, in addition to that of his own vehicles, is “applicable to the injured person”. Southern Farm Bureau, Casualty Insurance Company v. Roberts, 323 So.2d 536 (Miss.1975).

Id. Therefore, this Court held the two State Farm policies under which the survivors were insured were applicable in addition to the USF & G policy of the tortfeasor vehicle. Id. Because the bodily injury liability limits for the tortfeasor vehicle were less than the limits applicable to the injured person provided under the uninsured motorist coverage, the tort-feasor vehicle was thus an uninsured motor vehicle as defined by statute. Id.

¶ 14. This Court also held because stacking was so imbedded in Mississippi’s uninsured motorist law, the survivors would be allowed to stack the uninsured motorist coverage of each of the four vehicles covered under the USF & G policy. Id. at 714-15. The final issue this Court addressed was whether USF & G was entitled to an offset of the liability payments already made. Id. at 716. This Court, relying upon a then recent ruling in State Farm Mut. Auto. Ins. Co. v. Kuehling, 475 So.2d 1159 (Miss.1985), which allowed for an offset for uninsured motorist coverage from the tortfeasor’s liability carrier based upon the specific policy and the UM statute, held that USF & G was entitled to offset its uninsured motorist coverage by the payment of the tortfeasor’s liability carrier. Wickline, 530 So.2d at 717.

¶ 15. In Cossitt v. Federated Guar. Mut. Ins. Co., 541 So.2d 436, 438 (Miss.1989), Jan Cossitt along with Odom McDaniel and Joseph White were injured in an automobile accident when their vehicle was struck by Lester Davis. McDaniel subsequently died of his injuries. Id. Suit was filed by McDaniel’s estate and White against Davis. Id. The suits were settled after Davis’s liability insurance carrier paid $10,000 to each party. Id. These payments totally exhausted the available liability coverage under Davis’s insurance policy. Id. However, Cossitt received nothing from the insurance carrier because she did not file suit. Id. Cossitt claimed that because there were no longer any proceeds with which to pay her claims under Davis’s liability policy, he was now an uninsured motorist as to her so that her own insurance carrier, Federated Guaranty, was obligated to her under her policy which provided for uninsured motorist coverage. Id.

¶ 16. At the time of the accident, the tortfeasor had in effect bodily injury liability coverage in the amount of $10,000 per individual and $20,000 per accident. Id. at 439. Cossitt had in effect uninsured motorist coverage for bodily injury in the amount of $10,000 per individual and $20,000 per accident. Id.

Instantly, it can be seen that the focus in determining whether the tortfeasor is uninsured is on the respective “limits” of the policies. “Mississippi law defines an [uninsured vehicle in terms of policy limits, as distinguished from proceeds actually received by a particular claimant,” and furthermore, “the amount of the claimant’s damages is also irrelevant when determining eligibility for uninsured motorists benefits.” Wilson v. Nationwide Mutual Ins. Co., 667 F.Supp. 349, 355 (N.D.Miss.1987); Herrod v. National Indemnity Co., 643 F.Supp. 956, 959 (N.D.Miss.1986); Wickline v. U.S. Fidelity & Guaranty Co., 530 So.2d 708, 712-13 (Miss.1988).

541 So.2d at 440. This Court held because the limit of liability provided by Davis’s insurer was not less than the limit provided by Cossitt’s uninsured motorist coverage, the tortfeasor was not. an uninsured motorist pursuant to statute. Id. This Court also stated:

At first blush, it might appear that the policy of the Uninsured Motorist Act is to assure each injured party the availability of at least the minimum amount provided by the Mississippi Motor Vehicle Safety Responsibility Law. However, a closer inspection proves such a policy unintended, and inconsistent with the uninsured motorist provisions of the Motor Vehicle Safety Responsibility Law.
The applicable section of the Motor Vehicle Safety Responsibility Law referred to in Section 83-11-101'pro-vides as follows:
(2) Such owner’s policy of liability insurance:
(b) shall pay on behalf of the insured named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, all sums which the insured shall become legally obligated to pay as damages arising out of the ownership, maintenance or use of such motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs, with respect to each such motor vehicle, as follows: ten thousand dollars ($10,-000.00) because of bodily injury to or death of one (1) person in any one (1) accident and, subject to said limit for one (1) person, twenty thousand ($20,-000.00) because of bodily injury to or death of two (2) or more persons in any one (1) accident, and five thousand dollars ($5,000.00) because of injury to or destruction of property of others in any one (1) accident.
(Emphasis added). Mississippi Code Annotated, Section 63-15-43(2)(b) (Supp.1988); see also Sections 63-15-3(j), 63-15-11(4), 63-15-31. Thus, this statute sets the minimum amount of uninsured motorist coverage which every automobile liability policy must include, unless rejected by the insured.

Cossitt, 541 So.2d-at 441. This Court also found guidance from the Alabama Supreme Court, which addressed the identical argument based on an analogous statute:

The statute mandates a minimum of $10,000 coverage only in the case of accidents resulting in bodily injury to or the death of one person. Where an accident results in bodily injury to or the death of two or more persons, the statute mandates a minimum coverage of $20,000 for the accident. The statute clearly contemplates situations in which the recovery of each individual might be less than $10,000. It appears, therefore, that the policy behind the statute is to assure the availability of minimum coverage for each accident, not for each injured person. The minimum which the legislature intended to make available was available in the present case under [Davis’] liability policy. For this reason we cannot hold that he was an “uninsured motorist.” (Emphasis added).

Id. (quoting Criterion Ins. Co. v. Anderson, 347 So.2d 384, 386 (Ala.1977)).

¶ 17. In Dixie Ins. Co. v. State Farm Mut. Auto. Ins. Co., 614 So.2d 918 (Miss.1992), Glen Hurst and Donald Cannon were riding in a car when Hurst negligently drove off the highway, thus injuring Cannon. Hurst’s insurer, State Farm, provided liability coverage of $25,000 per person and $50,000 per accident, and UM coverage in the amount of $25,000 per person and $50,000 per accident. Id. at 919. Cannon’s insurer, Dixie, provided UM coverage in the amount of $10,000. Id. State Farm settled with Cannon for $20,193.66. Id. This payment, in addition to the settlements of the other passengers, exhausted State Farm’s per accident limit. Id. After the settlement, Cannon filed suit against State Farm and Dixie demanding additional payment because he had not been fully compensated for his injuries. Id. The trial judge ordered that State Farm was liable to Cannon under its UM coverage provision and ordered State Farm to pay Cannon $25,000 minus the liability payment, leaving State Farm with a balance of $4,806.34. Id. The trial judge also found that Dixie was hable to Cannon under its UM coverage provision and ordered Dixie to pay Cannon $10,000. Id. at 920. This Court affirmed the judgment of the trial judge and held:

Pursuant to the holding of State Farm Mutual Auto. Ins. Co. v. Kuehling, 475 So.2d 1159, 1163 (Miss.1985), a policy may, by its language, “provide [ ] for offsets of the [UM] coverage by amounts paid by the tortfeasor’s carrier....” Applying that rule to this case, one could say that, to the extent of $20,193.66, State Farm provided liability insurance of $25,000 and cannot be considered wholly uninsured. Subtracting or offsetting, $20,193.66 from $25,000, the court correctly arrived at an uninsured liability due from State Farm of $4,806.34.

614 So.2d at 922.

¶ 18. In Guardianship of Lacy v. Allstate Ins. Co., 649 So.2d 195 (Miss.1995), William Rawls’s vehicle collided with three other vehicles, injuring fourteen people and killing one. Rawls’s truck, which was insured by State Farm, had coverage of $500,000 per person and $1,000,000 per accident. Id. at 196. The aggregate amount of the uninsured motorist coverage was $1,000,000. Id. Steven Lacy was covered under his stepfather’s Allstate Insurance policy which provided uninsured motorist coverage in the amount of $50,000 (this included two vehicles). Id. After all parties agreed to enter into binding arbitration, Lacy’s damages were determined to be $85,000. Id. at 197. Because the total amount of damages exceeded Rawls’s liability coverage, each party received a pro rata share of the available funds. Id. Lacy received $65,765.96. Id. Lacy argued his carrier, Allstate, was responsible for the difference between his assessed damages and what he had received from his own uninsured motorist coverage. Id. He also asserted that the uninsured motorist coverage of all the insured parties involved in the accident should be aggregated, so that the aggregated amount would exceed the liability coverage on the tortfeasor vehicle. Id.

¶ 19. This Court first had to determine whether Lacy was an “insured” under either the insurance policy and/or the UM statute. See Gillespie v. Southern Farm Bureau Cas. Ins. Co., 343 So.2d 467, 471 (Miss.1977).

This underinsured motorist claim turns on the phrase “limits of bodily injury liability for its insured which are less than limits applicable to the injured uninsured motorist” found in the uninsured motorist statute, Miss.Code Ann. § 83-11-103 (Supp.1987). This statute provides for “limits,” but this Court has never defined that term. When only one individual claimant is involved, the limit would be that of the particular liability policy. However, when multiple claimants are presented in a scenario such as the case at hand, the determination of the limits of bodily injury liability is much more complex. We consider this proposition under the accepted principles of Miss.Code Ann. § 83-11-103 and the policies issued in accordance with the statute, which are (1) to liberally construe the statute in favor of the insured and (2) to strictly avoid or preclude exceptions or exemptions from coverage. Matthews v. State Farm Mutual Automobile Ins. Co., 471 So.2d 1223, 1225 (Miss.1985).

Lacy, 649 So.2d at 197. Because this Court held the Legislature did not intend all injured persons in an accident to aggregate their uninsured motorist coverage in order to qualify the tortfeasor vehicle as an uninsured motor vehicle, this Court found that Lacy was not an “insured” under the policies of the other injured parties. Id. at 199-01. This Court held:

This Court has not allowed aggregation of uninsured motorist policies where the claimant is not an insured within the coverage he seeks to aggregate, whether as an additional insured, permissive user, or a guest passenger. In each case where we have found aggregation to be applicable, the claiming party necessarily has been an “insured” as defined by the statute on policy.

Id. at 201. This Court also stated that:

the term “limits” refers to what an insured may or may not receive from the liability carrier, particularly when it involves multiple claims, and if it is less than his UM coverage, he may then aggregate. Unfortunately, this is of little benefit to the appellant in the case at hand since he received $65,765.86 from the liability carrier and only had $50,000.00 in UM coverage. If there had been coverage over the $65,765.86 amount, then he would have availed himself to the UM coverage up to the amount of either his damages or policy limits, whichever was less.

Id. at 198.

¶20. In Fidelity & Guar. Underwriters, Inc. v. Earnest, 699 So.2d 585 (Miss.1997), three passengers, including Tracy Earnest were killed in a single-car accident involving a vehicle negligently driven by Charles Plunkett. Plunkett’s insurance policy, issued by F & G, provided for $50,000 single limits liability coverage and $25,000 uninsured motorist coverage. Id. at 586. Tracy was covered under her father’s insurance policy, issued by State Farm, which provided for $45,000 in uninsured motorist benefits through stacking. Id. Pursuant to statute, Plunkett was an uninsured motorist. F & G offered to pay each passenger one-third of the $50,000 in liability coverage, but it denied any liability for UM benefits. Id. State Farm paid $20,000 in UM benefits. Id. The trial court held that State Farm’s tender of $20,000 relieved it of any additional liability. Id. The trial court also found F & G was liable for $8,333.33 in UM benefits ($25,000-16,666.67). Id.

¶ 21. This Court affirmed the judgment of the trial court finding that State Farm, pursuant to its policy, was entitled to an offset; however F & G was not. This Court found the offset provision in F & G’s policy exceedingly broad, “purporting to grant F & G the right to offset against payments made on behalf of the tortfeasor regardless of which party made the payments and regardless of to whom the payments were made.” Id.

The extent of a UM carrier’s right to offset is to a certain degree dependent upon the provisions providing for the offset in the UM insurance contract. In Dixie Ins. Co. v. State Farm Mut. Auto. Ins. Co., 614 So.2d 918 (Miss.1992), for example, this Court held that, under the provisions of Dixie’s own policy, Dixie only had a right to offset liability payments which it itself had made. Accordingly, this Court held that the policy provision granted Dixie no right to offset liability payments made by State Farm. The holding in Dixie thus indicates that this Court will not infer a broader right of the insurer to offset when the language of the insurer’s own policy provides for a more narrow right of offset than that for which it might legally provide.

699 So.2d at 588.

¶ 22. While the above cases are illustrative of this State’s history of uninsured motorist law, the cases do not provide a clear answer as to whether the per person or the person accident limit should be used to determine if the tortfeasor is an uninsured motorist when there are two or more claimants under the same uninsured motorist policy. This Court may either compare the total amount of uninsured motorist coverage available ($600,000) to the tortfeasor’s single liability limit ($300,-000) and determine the tortfeasor is an underinsured motorist, or this Court may compare the amount available to each insured (in this fact scenario Mr. and Mrs. Wise are each entitled to $300,000) to the tortfeasor’s single liability limit ($300,000) and determine that neither injured insured is entitled to uninsured motorist benefits. Cases from the North Carolina Court of Appeals provide guidance.

¶ 23. In North Carolina Farm Bureau Mut. Ins. Co. v. Gurley, 139 N.C.App. 178, 532 S.E.2d 846 (2000), the court addressed the issue of whether the per person or per accident limit was the applicable underin-sured motorist limit. Kathryn Gurley and her two passengers, Sherry Gurley and Wendy Woolard, were injured in an automobile accident due to the negligence of Charles Fornes. Id. at 847. Fornes was insured by Allstate whose policy provided liability limits of $25,000 per person and $50,000 per accident. Id. Allstate tendered its $50,000 to the injured parties. Id. The Gurleys each received $17,000, and Wendy received $16,000. Id. Sherry had an uninsured motorist policy with Farm Bureau which provided policy limits of $50,000 per person and $100,000 per accident. Id. Therefore, the injured parties sought coverage under this uninsured motorist policy. Id.

¶ 24. The North Carolina and Mississippi uninsured/underinsured motorist statutes and case law are very similar.

The North Carolina UIM statute necessitates a two-step analysis in resolving any UIM claims. First, we must address whether the insured is even eligible for UIM coverage. UIM coverage is available if two conditions are satisfied: (1) the negligent driver’s automobile was an “underinsured highway vehicle”; and (2) the negligent driver’s liability coverage has been exhausted. N.C. Gen.Stat. § 20 279.21(b)(4) (1999). Under our statute, an “underinsured highway vehicle” is:
a highway vehicle with respect to the ownership, maintenance, or use of which, the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of underinsured motorist coverage for the vehicle involved in the accident and insured under the owner’s policy.
Id. The respective liability and UIM limits are thus directly compared to each other.

532 S.E.2d at 848. The court found that because Fornes’s liability policy was less than the underinsured coverage, the automobile was an “underinsured highway ve-hide.” Id. The court also held that because Allstate tendered $50,000, its policy-coverage had been exhausted. Id. Therefore, both conditions had been met. Id.

¶ 25. The court next had to determine how much coverage the insureds were entitled to receive under the UIM policy. Id. North Carolina’s statute outlines the limit as follows:

[T]he limit of underinsured motorist coverage applicable to any claim is determined to be the difference between the amount paid to the claimant under the exhausted liability policy or policies and the limit of underinsured motorist coverage applicable to the motor vehicle involved in the accident. N.C. Gen.Stat. § 20-279.21(b)(4) (emphasis added).

Id. The court determined that the applicable UIM limit would not always be the same in every situation.

Specifically, we conclude that the applicable UIM limit under N.C. Gen.Stat. § 20 — 279.21(b)(4) will depend on two factors: (1) the number of claimants seeking coverage under the UIM policy; and (2) whether the negligent driver’s liability policy was exhausted pursuant to a per-person or per-accident cap.

Id. In Gurley, there were three injured parties compensated under the per accident limit; therefore, the applicable UIM limit was also the per accident limit.

Our interpretation of the applicable UIM limit under the statute makes sense both logically and pragmatically. Logically, our interpretation provides internal consistency with the rest of the UIM statute. For instance, to determine whether UIM coverage even applies, the statute explicitly mandates that the UIM limits be compared directly with the negligent driver’s liability limits. N.C. Gen.Stat. § 20-279.21(b)(4); Harris v. Nationwide Mut. Ins. Co., 332 N.C. 184, 188, 420 S.E.2d 124, 127 (1992). Because our legislature requires a comparison between the liability and UIM limits in determining the availability of UIM coverage, we conclude the legislature intended a similar comparison in determining the limit of that coverage.

Id. at 849 (emphasis in original).

¶ 26. In Nationwide Mut. Ins. Co. v. Haight, 152 N.C.App. 137, 566 S.E.2d 835 (2002), Charles Holleman failed to yield the right-of-way to a vehicle driven by Sondra Haight and her three passengers. Holleman’s vehicle was insured by Aetna with a policy providing liability coverage of $100,000 per person and $300,000 per accident. Id. at 836. Haight’s vehicle was insured by Nationwide under a policy providing UIM coverage with a “combined single limit” of $500,000. Id. Aetna paid $100,000 each to Haight and the Estate of one of the passengers. Id. Haight and the Estate then made claims for UIM coverage pursuant to the Nationwide policy. Id. Nationwide tendered $200,000 to Haight and the Estate.

¶ 27. Following the previous holding in Gurley, the court held:

As we explained in Gurley, when the liability policy is exhausted pursuant to the per-accident limit, then the proper calculation of UIM coverage available is obtained by subtracting the per-accident limit of the tortfeasor’s liability policy from the per-accident limit of the UIM policy. See Id. at 182, 532 S.E.2d at 849. Thus, in such a case, despite the language of the statute, only one calculation is performed for all claimants combined. Here, the liability policy was exhausted pursuant to the per-person limit for these defendants, and we must decide how to offset those payments from the UIM “combined single limit,” which more nearly resembles a per-accident limit.
* * *
We believe that the statute and policy here require that we calculate the difference between the “combined single limit” of $500,000 under the UIM policy and the combined total actually paid to these two defendants by the liability carrier. Thus, the amount of UIM coverage available to defendants is $500,000 less $200,000, resulting in $300,000 to be shared on a pro rata basis.

Haight, 566 S.E.2d at 838.

¶ 28. Using the North Carolina cases as guidance, Bostic’s single liability limit of $300,000 is equivalent to a per accident limit. Comparing that limit to the per accident limit of the Wises’ USAA policy of $600,000, Bostic’s vehicle should be considered an underinsured motor vehicle pursuant to statute. Therefore, the Wises are entitled to uninsured motorists benefits.

¶ 29. The Wises have already settled with Bostic for the full amount of his single liability limit of $300,000. They have also settled with Aswell’s employer, Steel Service Corporation, for $4,000. A confidential settlement was reached between the Wises and the bar defendants; however, the Wises admitted to USAA that this settlement exceeded the total amount of available uninsured motorist benefits. Notwithstanding this admission, the Wises still contend that USAA is liable for $300,000 in uninsured motorist benefits (the difference between the total available UM benefits and the amount paid by the tortfeasor’s liability carrier).

¶ 30. The Wises’ USAA policy provides in pertinent part:

PART C—UNINSURED MOTORISTS COVERAGE
INSURING AGREEMENT
UNINSURED MOTORISTS COVERAGE
We will pay compensatory damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of:
I. BI sustained by a covered person and caused by an accident;
The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle. WE will pay under this coverage only after the limits of liability under any applicable liability bonds or policies, or deposits of cash or securities have been exhausted by payment of judyments or settlements.

(emphasis added). According to the language of the policy, USAA is entitled to offset its UM payments by any judgments and settlements paid to the insureds. Therefore, the trial court was correct in determining that the Wises no longer have any uninsured motorist claims available to them. The Wises have admitted that they have been paid, through settlements, an amount which exceeds their available uninsured motorist benefits; therefore, USAA is no longer hable for any uninsured motorist benefits.

II. WHETHER THE TRIAL COURT WAS CORRECT IN ITS DETERMINATION THAT THE WISES DID NOT HAVE A VALID BAD FAITH CLAIM.

¶ 31. The preceding discussion under Issue I demonstrates without doubt that USAA had a legitimate and arguable basis in law for denying the Wises’ claim for uninsured motorist benefits. See Cos- sitt, 541 So.2d at 443. Therefore, the trial judge was correct in determining the Wises did not have a valid bad faith claim. This issue is without merit.

CONCLUSION

¶32. The trial judge was correct in finding there were no USAA uninsured motorist benefits available to the- Wises. The Wises exhausted the $600,000 available uninsured motorist benefits through other settlements; therefore, USAA is no longer liable for uninsured motorist benefits. The trial judge was also correct in finding the Wises did not have a valid bad faith claim against USAA. The judgment of the Circuit Court of the First Judicial District of Hinds County is affirmed.

¶ 33. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER AND COBB, JJ., CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY EASLEY, J. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

Dissenting:

¶ 34. Based upon its incorrect reading of the applicable insurance policy language and its misapprehension of the facts and law, the majority erroneously affirms that the trial court’s ruling that there were no uninsured motorist benefits available to the Wises. However, under the applicable language the uninsured motorist provision of the United Services Automobile Association (“USAA”) policy and the statutory and case law of the settlements were apportioned among three injured individuals and only those settlements which resulted from the “owners and operators” of the “uninsured motor vehicle” as defined by the policy and statute may be used for the purposes of determining whether the applicable uninsured motorist maximum liability limits per accident have been exhausted. Since settling defendants Peoples Security Life Insurance Company (“Peoples Security”), JMH Operating Company (“JMH Operating”), American General Hospitality (“American General”), and Steel Service Corp. (“Steel Service”) were never “owners and operators” of “uninsured motor vehicles,” any settlements executed between these four defendants and the Wises cannot be used to offset the uninsured motorist coverage benefits provided by the USAA policy. For these reasons, I dissent.

¶ 35. In order to better understand why coverage has not been exhausted the applicable facts and law must be recited. The facts and applicable law can best be summarized through the following steps of analysis:

(1) The Complaint filed by the Wises alleged injury to three individuals— Joseph Wise (“Joseph”); Charlene C. Wise (“Charlene”); and Elizabeth Ramsey Wise (“Elizabeth”).
(2) All three Plaintiffs were covered under insurance policies issued by USAA. By stacking these three policies, the uninsured motorist coverage amounts applicable to the Wises included $300,000 per person and a $600,000 maximum for the accident. See McDaniel v. Shaklee U.S., Inc., 807 So.2d 393, 396-99 (Miss.2001); Fidelity & Guar. Underwriters, Inc. v. Earnest, 699 So.2d 585, 588 (Miss.1997); Dixie Ins. Co. v. State Farm Mut. Auto. Ins., Co., 614 So.2d 918, 921 (Miss.1992); Cossitt v. Federated Guar. Mut. Ins. Co., 541 So.2d 436, 439-43 (Miss.1989); Washington v. Georgia Am. Ins. Co., 540 So.2d 22, 25 (Miss.1989); Wickline v. U.S. Fid. & Guar. Co., 530 So.2d 708, 712-13 (Miss.1988). USAA has even admitted that these are in fact the policy limits under the uninsured motorist coverage. The policy further provides as to coverage that “we will pay compensatory damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle .... [t]he owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle.” See also Miss.Code Ann. § 83-11-101. The policy defines “uninsured motor vehicle” as “a land motor vehicle or trailer,” and gives several types and descriptions of those which are covered. See also Miss.Code Ann. § 83-ll-103(c).
(3)Defendant Steven Bostic was covered by a United States Fidelity & Guaranty Co. (“USF & G”) policy which specifically provided that maximum liability limits per “EACH ACCIDENT” totaled $300,000. The USF & G policy states in clear language under “LIMIT OF LIABILITY” that despite the substantive law of the State where the accident occurred, “it will not change [its] total limit of liability.” Even USAA admits in its Memorandum Brief in Support of its Motion for Summary Judgment that the USF & G policy had a “single limit of liability coverage of $300,000.” As this is the policy language of the insurance contract, this Court must adhere to the plain meaning of the language and find that the $300,000 liability limits provided were per “EACH ACCIDENT.” McDaniel, 807 So.2d at 396-99; Earnest, 699 So.2d at 588; Dixie Ins., 614 So.2d at 922; Cossitt, 541 So.2d at 439-43; Wickline, 530 So.2d at 717.
(4) Defendant Alfred Aswell (“Aswell”), the intoxicated driver who injured the Wises, had no personal insurance. However, Defendant Steel Services Corp. (“Steel Services”), Aswell’s employer, was also named as a Defendant in the suit. Since Steel Services did not own the auto which Aswell drove, insure the auto in which Aswell drove, or give As-well permission to drive the automobile, it is clear that any liability policy invoked on behalf of Steel Services would be a general liability policy.
(5) Defendants Peoples Security Life Insurance Company (“Peoples Security”), JMH Operating Company (“JMH Operating”), and American General Hospitality (“American General”) were either operators or owners of the Ramada Inn. These three defendants were covered by a general liability policy issued to insure the premises and operations of the Ramada Inn including the Ramada Inn bar. No vehicles were covered by this policy, and certainly the vehicle driven by Aswell was not insured by this policy.
(6) Based upon these facts, the uninsured motorist coverage provided by the USAA policy had been invoked by the fact that the USF & G policy carried $300,000 per accident and the USAA policy carried $300,000 per person and $600,000 per accident ($300,000: $600,000). See McDaniel, 807 So.2d at 396-99; Earnest, 699 So.2d at 588; Dixie Ins., 614 So.2d at 921; Earnest, 699 So.2d at 588; Dixie Ins., 614 So.2d at 921; Cossitt, 541 So.2d at 439-43; Wickline, 530 So.2d at 712-13. Once the uninsured motorist provision is invoked, a determination then must be made as to whether the plaintiffs have exhausted their coverage— meaning received more than $600,000 in compensation from “owners and operators” of the “uninsured motor vehicle” as a result of the accident. See Earnest, 699 So.2d at 588; Wickline, 530 So.2d 708.
(7) The three Plaintiffs, together, settled with USF & G for a total of $300,000 collectively. However, this $300,000 in damages was allocated between the three Plaintiffs. This $300,000 encompassed the maximum liability limits of USF & G per accident, not per person. Joseph’s portion of the settlement totaled $225,000; Charlene’s portion of the settlement totaled $55,000; and Elizabeth’s portion of the settlement totaled $20,000.
(8) The three Plaintiffs, together, also settled with Steel Services, Aswell’s employer, for $4,000, collectively. This $4,000 was allocated between the three Plaintiffs even though the record is silent as to the exact allocation amounts. However, this $4,000 settlement does not apply in assessing the available funds in the USAA uninsured motorist coverage provisions, since Steel Services was in no way an “owner or operator” of the “uninsured motor vehicle” as specifically provided by the USAA policy language. See Miss.Code Ann. § 83-ll-103(c) (Rev.1999); Earnest, 699 So.2d at 589; Miller v. Allstate Ins. Co., 631 So.2d 789, 791 (Miss.1994); Dixie Ins., 614 So.2d at 922; Cossitt, 541 So.2d at 439-43; Wickline, 530 So.2d at 717; State Farm Mut. Auto. Ins. Co. v. Daughdrill, 474 So.2d 1048, 1052-54 (Miss.1985). Since Steel Services, Corp. was not an “owner or operator” of the “uninsured motor vehicle,” the $4,000 settlement may not be used to reduce the available uninsured motorist funds.
(9) The three Plaintiffs, together, settled with Peoples Security, JMH Operating, and American General, the three entities responsible for the Ramada Inn’s ownership and operation. The amount of the settlement and the allocation among the three Plaintiffs was not disclosed in the record. However, the exact amount or allocation of the settlement is not necessary for the analysis. Since Peoples Security, JMH Operating, and American General were not “owners or operators” of the “uninsured motor vehicle,” any settlement executed with the Plaintiffs may not be used to reduce the available uninsured motorist benefits provided for in the USAA policy. See Miss.Code Ann. § 83-11-103(c); Earnest, 699 So.2d at 589; Miller, 631 So.2d at 791; Dixie Ins., 614 So.2d at 922; Cossitt, 541 So.2d at 439—43; Wickline, 530 So.2d at 717; Daughdrill, 474 So.2d at 1052-54.
(10) USAA eventually paid $1,000 to the Wises for medical payments. Although this may have been inadvertent, it still must be considered in reducing the amount of damages available to the Plaintiffs.
(11) In sum, the Plaintiffs have received $301,000 in recovered monies that must be used to reduce the $600,000 maximum per accident limits provided by the USAA policy. The Plaintiffs, collectively, are entitled to recover $299,000 in uninsured motorist benefits from USAA. See Harris v. Magee, 573 So.2d 646 (Miss.1990).

¶ 36. The majority’s analysis went awry once it failed to correctly apply the USAA policy language and the uninsured motorist statute. The majority fails to adhere to the “owner or operator” policy language. Specifically, what the majority misses in its analysis is the following:

PART C — UNINSURED MOTORISTS COVERAGE
INSURING AGREEMENT UNINSURED MOTORISTS COVERAGE
We will pay compensatory damages which a covered person is legally entitled to recover from the owner or operator of an insured motor vehicle ... The owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicles.

(emphasis added). Clearly, Peoples Security, JMH Operating, American General, and Steel Services were never “owners and operators” of the “uninsured motor vehicle.” None of these four settling defendants had any relation to the “uninsured motor vehicle.” By USAA’s very policy language, any settlements executed with these defendants do not operate to reduce the recoverable uninsured benefits available to the Wises.

¶ 37. These four defendants had no connection to the “uninsured motor vehicle” which Aswell was driving when the accident occurred, and all were covered by general liability policies which do not provide for any sort of automobile coverage. The majority’s holding is troubling since it finds that uninsured motorist benefits may be offset by compensation paid to the plaintiffs by general liability .policies. That holding is contrary to the very purpose of the uninsured motorist statute. It is totally absurd and contrary to the law to require offset for benefits received from persons other than “owners and operators” of “uninsured motor vehicles” and who have no connection whatsoever to the ownership, operation, supervision, or maintenance of the “uninsured motor vehicle.” I would reverse the circuit court’s judgment and remand this case for further proceedings.

¶ 38. For the above-stated reasons, I dissent.

EASLEY, J., JOINS THIS OPINION IN PART.


source: Caselaw Access Project

author: EASLEY, Justice, for the Court. McRAE, Presiding Justice,

license: Public Domain

text:
    CITY OF CLINTON, Mississippi v. Ernest SMITH.
    No. 2002-CA-01670-SCT.
    Supreme Court of Mississippi.
    Oct. 23, 2003.
    Rehearing Denied Dec. 31, 2003.

      Kenneth R. Dreher, Ridgeland attorney for appellant.
    Joel W. Howell, III, Jackson, attorney for appellee.
   EASLEY, Justice, for the Court.

¶ 1. On February 5, 1996, Ernest Smith (Smith) fell while exiting the municipal court building in Clinton, Mississippi. Smith left the building by way of the handicap ramp. Due to the ice and snow on the ramp, Smith slipped and fell. Smith received medical treatment for his injuries from the fall.

¶ 2. Smith filed suit against the City of Clinton in the Circuit Court of the First Judicial District of Hinds County, Mississippi, on May 5, 1997. On January 31, 1997, written notice was given to Rosemary Aultman, as Mayor of Clinton, Mississippi, prior to filing suit regarding Smith’s February 5, 1996, accident and the injuries which resulted. Circuit Judge Winston L. Kidd conducted a bench trial pursuant to Miss.Code Ann. § 11-46-13(1) (Rev.2002). The trial court rendered a final judgment in the amount of $150,000 for Smith. From this decision, the City filed its appeal to this Court.

FACTS

¶ 3. On February 5, 1996, Smith went to the municipal court building in Clinton, Mississippi to pay a fine for a DUI offense. The City concedes that the City of Clinton had been struck by a severe ice storm. Smith entered the building by the steps into the building. He observed ice and snow on the steps. Smith observed no warning or flags regarding the ice and snow accumulation. When Smith exited the building, he left by way of the wheelchair ramp. The City concedes that Smith slipped and fell exiting the building sustaining some injury.

¶ 4. Paramedics took Smith to the Mississippi Methodist Hospital where he was treated and released on medication. A week or two later, Smith went to see Dr. Bill Spell at the University Hospital. Dr. Spell took x-rays. Smith was referred to Dr. Robert Smith (Dr. Smith), a neurosurgeon, for treatment by another doctor also named Dr. Robert Smith.

¶ 5. Dr. Smith initially saw Smith on April 25,1996. Dr. Smith saw Smith again on June 20, 1996, for his complaints of arm tingling, uncomfortable feeling in his right hand, trouble using his hands, weakness of his right wrist and absence of triceps and brachioradialis reflex on the right. Dr. Smith ordered further x-rays. The scan revealed a tight canal. The intervertebral foramen at C6-7 was severely comprised bilaterally. Dr. Smith stated that Smith must have contused a nerve root during his fall.

¶ 6. Dr. Smith saw Smith again in September of 1996. A review of the MRI indicated a herniated disk at C7 and Tl. Dr. Smith stated that based on Smith’s medical history he “would have to assume there’s a causation” between the fall and the herniated disk.

¶ 7. During a visit in May of 1999, Dr. Smith referred Smith for a nerve conduction test. Reviewing the results of the nerve conduction test, Dr. Smith discovered C8 radiculopathy. To a reasonable degree of medical certainty, Dr. Smith attributed the injury to the fall. Dr. Smith last saw Smith on February 6, 2001.

¶ 8. Dr. Smith determined that Smith had some permanent injuries proximately caused by the fall. Dr. Smith testified that Smith would probably require future medical care amounting to several thousand dollars a year. Dr. Smith felt that Smith would require treatment for four or five years after the injury. Since the accident occurred in 1996, Dr. Smith felt that by the time this deposition was taken on September 11, 2001, Smith should be getting to the stage where he would not need much future medical treatment. However, Dr. Smith stated that Smith will have some continued permanent pain. Dr. Smith’s medical charges amounted to $553.50.

¶ 9. Smith was also treated by Dr. Leonard Edwards, a chiropractor. Dr. Edwards initially saw Smith on March 19, 1997, for arm, neck and head pain related to a fall on February 5, 1996. Based on his examination, Dr. Edwards determined that Smith exhibited weakness and a loss of agility in his right hand. Dr. Edwards stated that within a reasonable degree of medical certainty, the fall caused the difficulty Smith was experiencing. The course of treatment that Dr. Edwards provided consisted of “working with the cervical spine as well as the extremity to increase the range of motion to the extremity to increase usage of the hand.” Dr. Edwards also used cryotherapy on Smith. After Smith’s adjustment, Dr. Edwards placed Smith in cervical traction with ice applied to the neck to increase the natural lordosis or curvature of the neck and also to the extremity. Smith was told to continue ice therapy at home on a daily basis. Dr. Edwards continued treatment until the visit on May 5, 2000.

¶ 10. Dr. Edwards determined that within a reasonable degree of medical probability that Smith would have permanent limitations as to any twisting motion of his hand as a result of the fall. Dr. Edwards’s charges for chiropractic care amounted to $14,291.00. Dr. Edwards stated that none of his charges had been paid.

¶ 11. Dr. Edwards stated that within a reasonable degree of probability, Smith would need future chiropractic care. Dr. Edwards testified the cost of chiropractic treatment would be $6,240.00 a year.

¶ 12. Smith introduced Medicaid’s statement of payments made in connection with medical services provided and pharmacy payments made as a result of the accident dated February 5, 1996. The statement indicated payment of $8,077.26 by Medicaid.

¶ 13. After a bench trial on December 18, 2001, briefs were submitted, and Judge Kidd rendered his opinion in favor of Smith, awarding damages of $150,000. Judgment was entered from that sum. From that judgment, the City appealed to this Court, raising the following issues:

I. Whether the City is entitled to absolute immunity under Miss.Code Ann. § ll-46-9(l)(v).

II. Whether the trial court failed to apply the doctrine of comparative negligence.

DISCUSSION

¶ 14. On appeal, the City contends that it is entitled to immunity from liability to Smith pursuant to Miss.Code Ann. § 11-46-9(l)(v) (Rev.2002). However, Miss. Code Ann. § ll-46-9(l)(v) provides that governmental entity shall not be liable for any claim:

Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee if the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due caret.]

(emphasis added).

¶ 15. In awarding damages of $150,000 against the City, the trial court stated:

The City of Clinton claims absolute immunity from suit in this case based upon Mississippi Torts Claim Act exemption found in § ll-46-9(l)(v) which states in pertinent part:
(1) A governmental entity and its employees action within the course and scope of their employment or duties shall not be liable for any claim:
(v) Arising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care.
Miss.Code Ann. § ll-46-9(l)(v).
Applying the foregoing to the facts in this case, the court finds that the City of Clinton is responsible for Ernest Smith’s injury. The evidence is clear that officials of the City of Clinton had either actual or constructive knowledge of the dangerous condition surrounding the entrance to the municipal building. It is equally clear that no precautionary measures were taken until after Mr. Smith fell and sustained his injury. Consequently, the shield of absolute immunity is not available to the City of Clinton and it is liable to Smith for damages for the injuries he sustained in the February 5, 1996, fall in front of the City of Clinton Municipal Building.

¶ 16. This Court’s standard of review of a judgment from a bench trial is well settled. “ ‘A circuit judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor,’ and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence.” Maldonado v. Kelly, 768 So.2d 906, 908 (Miss.2000) (quoting City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000)) (citing Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993); Sweet Home Water & Sewer Ass’n v. Lexington Estates, Ltd., 613 So.2d 864, 872 (Miss.1993); Allied Steel Corp. v. Cooper, 607 So.2d 113, 119 (Miss.1992)).

¶ 17. Based on Smith’s testimony during cross-examination, the trial court erred in its analysis by ignoring the entire language of Miss.Code Ann. § ll-46-9(l)(v), that “a governmental entity shall not be liable for failure to warn of a dangerous condition which is obvious to one exercising due care.” At trial and in his deposition, Smith admitted that the steps and ramp were covered with enough snow and ice for any human eye to see and that he wasn’t paying attention as he left the building holding his money and a receipt.

¶ 18. As an example of the application of Miss.Code Ann. § 11^46-9(1)(v), the Mississippi Court of Appeals recently addressed this issue in City of Newton v. Lofton, 840 So.2d 833, 836 (Miss.Ct.App.2003). The City of Newton contended that “the trial court misapplied the law to the facts of this case erroneously determining that the City of Newton was not immune from liability under Miss.Code Ann. § 11-46-9(1)(v).” 840 So.2d at 835. In an effort to attend a junior-senior prom held in the Newton Middle School gymnasium, Lofton had parked her vehicle in a parking lot to the rear of the gymnasium and walk a path across a grassy area and through a construction site. Id. at 834-35. The City was doing construction in order to improve drivers’ visibility in the area. Id. at 835. Witnesses testified that there was an absence of warning signs and that construction' was not completed. Id. “Lofton sustained a compound fracture to her leg and incurred medical expenses totaling $18,135.00.” Id. Lofton “endured three hospital stays and years of rehabilitation to retain use of her leg.” Id. The trial court conducting a bench trial awarded Lofton $155,054.25. Id. In upholding the trial court’s award, the court held that:

The trial court used the statute to determine, based on the facts of the case, if the statute provided immunity for the City of Newton. After weighing all the evidence, the trial court determined that Lofton’s injury was caused by the negligence of the City of Newton, by failing to warn and protect Lofton, who was an invitee, against the dangers present on said construction site. The trial court, sitting as the jury, determined that the condition was not open and obvious which is required for immunity to apply. The City of Newton failed to have present warning devices surrounding said construction site, which, if present, could have alerted Lofton to the danger.

Id. at 836.

¶ 19. Unlike the facts in Lofton, Smith by his own testimony, during his deposition and during cross-examination, admitted that the ice and snow on the ramp was obvious for anyone to see. Based on Smith’s admission, the facts present a situation of an open and obvious condition which is required for immunity pursuant to Miss.Code Ann. § 11-46-9(l)(v). Therefore, we find that the trial court erred in not granting the City immunity pursuant to Miss.Code Ann. § 11-46-9(l)(v). As this issue is dispositive of the case, we will not address comparative negligence raised on appeal by the City in its second issue.

CONCLUSION

¶ 20. For the foregoing reasons, we find that the trial court erred in not finding the City immune under Miss.Code Ann. § 11-46-9(l)(v). Therefore, we reverse the judgment of the Circuit Court of Hinds County awarding Smith $150,000, and we render judgment here in favor of the City finally dismissing Ernest Smith’s complaint and this action with prejudice.

¶ 21. REVERSED AND RENDERED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB, CARLSON AND GRAVES, JJ., CONCUR. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

Dissenting:

¶ 22. The majority erroneously finds that the circuit court erred in rendering judgment in favor of Ernest Smith for personal injuries he received as a result of a fall he sustained on the handicap ramp of the City of Clinton municipal court building. The majority fails to give deference to the circuit court judge who presided in a bench trial and both viewed the evidence and the witness testimony. After reviewing the evidence and applying Miss.Code Ann. § ll-46-9(l)(v) (Rev.2002), the circuit court judge correctly found the City of Clinton liable for Smith’s injuries. His findings were based on substantial credible evidence and should not be overturned. The circuit court correctly found and the evidence clearly established that Smith exercised ordinary care in descending the handicap ramp, the City of Clinton had either actual or constructive knowledge of the hazards created by the ice on the handicap ramp, the City of Clinton took absolutely no precautionary measures to ensure the safety of individuals entering and exiting the building, and the conditions created by the ice were not obvious. For these reasons, I dissent.

¶ 23. Actions brought under the Mississippi Tort Claims Act (“MTCA”) are conducted by bench trial where the trial judge sits as trier of fact. Miss.Code Ann. § 11-46-13(1) (Rev.2002); Simpson v. City of Pickens, 761 So.2d 855, 860 (Miss.2000); City of Newton v. Lofton, 840 So.2d 833, 835 (Miss.Ct.App.2003). The trial court’s findings will not be disturbed unless the judge “abused his discretion, was manifestly wrong, clearly erroneous or an erroneous legal standard was applied.” Id. at 836. Furthermore, the trial judge’s findings of fact are safe on appeal if “supported by substantial, credible, and reasonable evidence.” City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000). However, errors of law are reviewed de novo. Id.

¶ 24. With the above standards in mind, the applicable statute at issue is Section ll-46-9(l)(v) of the MTCA, Miss.Code Ann. § ll-46-9(l)(v), which specifically provides:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
Arising out of an injury caused by a dangerous on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for failure to warn of a dangerous condition which is obvious to one exercising due care.

Miss.Code Ann. § ll^b^GXv). Under this section, the governmental entity and its employees may not be liable for premises conditions under any of the following:

1. A dangerous condition on the property of the governmental entity which was not caused by the negligence or other wrongful conduct of an employee of the governmental entity;
2. A dangerous condition on the property of the governmental entity for which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; and/or
3. An open and obvious condition which is obvious to one exercising ordinary care despite the governmental entity’s failure to warn.

The specific requirements for each are separate and distinct as each of the three have been laid out by statute. Each of the three will be addressed individually below, and the requirements for each will be discussed.

1. A dangerous condition on the property of the governmental entity which was not caused by the negligence or other wrongful conduct of an employee of the governmental entity.

¶ 25. Obviously, under this condition for absolute immunity, the City of Clinton is not liable to Smith. The dangerous condition, that being the ice on the handicap ramp, was not caused' at all by the governmental entity or any of its employees. The ice as a dangerous condition was caused by an act of God, the weather.

2. A dangerous condition on the property of the governmental entity for which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against.

¶ 26. This condition for absolute immunity requires further inquiry than the one discussed above. The condition turns upon whether the City of Clinton had (1) actual or constructive knowledge (also referred to as “notice”); and (2) whether it took proper precautions to warn if it had such notice.

¶ 27. Actual knowledge requires a finding that the City of Clinton through its employees knew of the dangerous condition, that being the ice on the handicap ramp. Munford, Inc. v. Fleming, 597 So.2d 1282, 1284 (Miss.1992). Constructive knowledge is established “by proof that the condition existed for such a length of time that, in the exercise of reasonable care, the proprietor should have known of it.” Id. (quoting Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 285 (Miss.1986)). A proprietor or governmental entity is said to have constructive knowledge when in the exercise of ordinary care it “should have known of the condition.” Id. See also Lindsey v. Sears Roebuck & Co., 16.F.3d 616, 618 (5th Cir.1994); Anderson v. B.H. Acquisition, Inc., 771 So.2d 914, 918 (Miss.2000).

¶ 28. ' Based on the evidence presented, the circuit court found that the City of Clinton had actual and/or constructive knowledge of the ice on the handicap ramp and that no precautions were taken to warn its citizens using the building. Even based on the majority’s facts, the circuit court’s findings are justified. The City of Clinton had been struck by a severe ice storm. There is no possible way the City and its employees could argue that they were unaware that ice was on the ground, sidewalks, steps, and handicap ramps located outside the municipal court building. The City maintained no warnings or flags regarding the ice present outside of the buildings entrance. Since the circuit court judge presiding in a bench trial was the trier of fact, his findings are to be given great deference. Miss. Dep’t of Transp. v. Cargile, 847 So.2d 258, 263 (Miss.2003) (collecting authorities). This deference recognizes that conflicting evidence and testimony, even as to actual or constructive knowledge, must also be upheld unless “substantial credible evidence” does not support his findings. Id. We must review the “entire record and must accept that ‘evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact.’ ” Id. (quoting K-Mart Corp. v. Hardy ex rel. Hardy, 735 So.2d 975, 980 (Miss.1999) (citations omitted)). As the evidence clearly supports the circuit court judge’s findings, this Court should not second guess his good judgment, especially in light of the fact that he viewed the evidence and heard the testimony of the witnesses.

3. An open and obvious condition which is obvious to one exercising ordinary care despite the governmental entity’s failure to warn.

¶29. The last condition for absolute immunity requires an “obvious condition” to one “exercising ordinary care.” Under this condition, the City of Clinton is not required to warn its residents of the dangerous condition.

¶ 30. Whether a condition is “obvious” is a question of fact. Huffman v. Walker Jones Equip. Co., 658 So.2d 871, 873 (Miss.1995); City of Newton, 840 So.2d at 836. A determination of just how “obvious” a condition is turns upon the fact finder’s analysis of the evidence presented. Tate v. Southern Jitney Jungle Co., 650 So.2d 1347, 1350 (Miss.1995) (collecting authorities).

¶ 31. Under the circumstances, the circuit court, as the fact finder, determined that based on the evidence presented the dangerous condition was not “obvious” and that Smith used “ordinary care.” His findings are supported by “substantial credible evidence” and should not be disturbed. City of Newton, 840 So.2d at 836. Despite the majority’s attempt to misconstrue Smith’s testimony, his testimony does not reveal that he was on “notice” of the dangerous condition on the handicap ramp or that such condition was “obvious.” The segment of his testimony cited by the majority only proves that Smith was aware of ice on the steps of the municipal court building and not on the handicap ramp of the municipal court building. In fact, Smith’s testimony reveals that he was using “ordinary care” by choosing to descend by way of the handicap ramp instead of the steps after having noticed the ice on the steps on his way into the building.

¶ 32. The trial court heard the testimony of the witnesses and evaluated Smith’s claim on a first-hand basis. His findings should be given respect and deference. Accordingly, I would affirm the circuit court’s judgment. For the above-stated reasons, I dissent.

      . Despite this Court's abandonment of the "open and obvious” defense as a total bar to the maintaining of a tort claim in Tharp v. Bunge Corp., 641 So.2d 20 (Miss.1994), the Legislature has chosen to adopt that standard to be applied to the State, its governmental entities, and employees.


author: WALLER, Justice, for the Court. McRAE, Presiding Justice,

text:
    RAYTHEON AEROSPACE SUPPORT SERVICES and Liberty Mutual Insurance Company v. Ora MILLER.
    No. 2001-CT-01025-SCT.
    Supreme Court of Mississippi.
    Oct. 30, 2003.
    Rehearing Denied Dec. 31, 2003.

      J. Keith Pearson, Gulfport, George E. Read, Jackson, attorneys for appellants.

      David C. Owen, Jeffrey Carter Smith, Columbus, attorneys for appellee.
   ON WRIT OF CERTIORARI

WALLER, Justice, for the Court.

¶ 1. Ora Miller, an employee of Ray-theon Aerospace Support Services, and while in the course and scope of her employment, tripped and hurt her right hand, left knee and back. She returned to work a few months later, and the next day, she claims that she sustained a second back injury. Miller claims that she reported this injury to her supervisor; however, Raytheon denied receipt of any notice of the injury, sent Miller a letter of suspension, and then terminated her employment for failure to report to work. Raytheon does not dispute the occurrence of the first injury, but it does dispute that a second injury occurred and/or that Miller informed it of the injury.

¶ 2. The Workers’ Compensation Commission administrative judge awarded Miller permanent total disability benefits for 450 weeks. Raytheon appealed, and the Commission affirmed in part and vacated in part. Miller appealed to the Circuit Court of Lowndes County, which reversed the Commission and reinstated the order of the administrative judge. Raytheon appealed arguing that the decision of the circuit court was not supported by substantial evidence. A divided Court of Appeals found no error and affirmed the circuit court’s decision. Raytheon Aerospace Support Servs. v. Miller, 850 So.2d 1159 (Miss.Ct.App.2002). We granted Raytheon’s petition for writ of certiorari, which asserts that the Court of Appeals and the circuit court stepped outside the limited scope of review under the substantial evidence standard and impermissibly reweighed the evidence and made independent determinations regarding the credibility of witnesses.

¶ 3. We conclude that the circuit court and the Court of Appeals impermissibly substituted their opinions for that of the Commission. Accordingly, we reverse the judgments of the Court of Appeals and the circuit court and reinstate the Commission’s decision.

FACTS

¶ 4. Miller had a history of custodial type, minimum wage jobs. She began working for Raytheon as a custodian and normally worked the third shift. She cleaned various buildings and carried loads of trash weighing up to fifty pounds. On May 8, 1996, in the course of her employment, Miller sustained injuries to her right hand, her left knee and back when she tripped while attempting to get a floor buffer. She reported the injury to her supervisor, and he drove her to the Baptist Memorial Hospital in Columbus, Mississippi, where she received treatment and was subsequently seen by Scott Jones, M.D. Dr. Jones referred her to John Gassaway, M.D. Miller returned to her employer after being released by Dr. Jones to return to restricted duty work. She was informed that Raytheon did not have any “restricted duty” work and sent home.

¶ 5. She was off work for about 3 months, during which time she continued to see Dr. Jones and began seeing Manuel Carro, M.D., for treatment and physical therapy exercises. She was released to return to work on or about August 1,1996, and did return to work on August 5. While performing her job duties in the early morning hours of August 6, Miller allegedly sustained a second back injury when she attempted to retrieve a floor buffer from an overhead locker. She testified that she went to the custodial office and remained there until her supervisor, John Gerhardt, arrived for work. At that time, she allegedly informed Gerhardt of the injury and went home. Her daughter took her to see her family physician, Charles Stanback, M.D.

¶ 6. Miller did not return to work that evening (August 6) or the next day, and on August 8 she received a letter of suspension from Raytheon. On August 18, she received a telephone call informing her that her employment had been terminated.

¶ 7. Much of the dispute involves Ray-theon’s denial that a second injury occurred and its denial that it was informed of a second injury. The Court of Appeals found that the testimony offered by Miller’s treating physicians (Dr. Carro and Dr. Stanback) corroborated the occurrence of a second injury. The Court of Appeals also found that the testimony of Miller’s adult children, who lived with her at the time of the injury, corroborated the occurrence of a second injury. Raytheon’s position that it was never informed of a second injury was declared in the form of deposition testimony from John Gerhardt, Miller’s supervisor, that he was never informed of the second injury. Raytheon’s personnel supervisor, Deborah Junkin, testified that she worked on Miller’s workers’ compensation claim. She stated that she received a fax from Miller’s attorney on August 6, 1996, informing her that Miller would be off work through August 18, 1996, but, that no one informed her that it was because of a second injury. She also testified that she received records from Dr. Stanback’s office but that these records were not marked “Workers’ Compensation” and that she assumed that Miller was seeing Dr. Stanback for a condition unrelated to work. Raytheon also offered the testimony of a former maintenance control technician, an aircraft technician and two other custodial workers who testified that they had observed and spoken with Miller on the night that the second injury allegedly occurred, as well as in the days following her return to work from the first injury, and that they did not observe Miller to be injured or incapable of performing her duties. Raytheon also presented the testimony of Ruthie Williams. Williams and Miller were reportedly friends until some point subsequent to the injuries when they had a “falling out.” Williams’s testimony was that Miller was unhappy with the way she was being treated by her employer and that she vowed to find a way to get out of working for the company.

¶ 8. The administrative judge awarded Miller permanent total disability benefits for 450 weeks. Raytheon appealed, and the Commission found in favor of Ray-theon. Miller appealed to the Circuit Court of Lowndes County which reversed the Commission and reinstated the administrative judge’s order. Raytheon appealed, arguing that the circuit court applied the incorrect standard of review and that the decision was not supported by substantial evidence. The Court of Appeals found no error and affirmed the circuit court’s decision. Raytheon’s petition for writ of certiorari followed.

DISCUSSION

I. WHETHER THE COURT OF APPEALS WENT BEYOND THE APPLICABLE STANDARD OF REVIEW, IMPERMISSIBLY WEIGHED THE EVIDENCE, AND MADE INDEPENDENT FACTUAL DETERMINATIONS.

II. WHETHER THE DECISION OF THE COURT OF APPEALS TO AFFIRM THE CIRCUIT COURT’S ORDER OVERTURNING THE COMMISSION’S ORDER AND REINSTATING THE ADMINISTRATIVE JUDGE’S ORDER WAS ERROR.

¶ 9. We find that the circuit court and the Court of Appeals did overstep the very limited scope of review under the substantial evidence and/or arbitrary and capricious standard. The “substantial evidence” scope of judicial review of administrative agency decisions is that the courts may interfere only where the agency action is arbitrary and capricious. Arbitrariness and caprice are in substantial part a function of the presence vel non of credible evidence supporting the agency decision. Where there is such evidence, a reviewing court has no authority to interfere with the decision of the Commission. Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1247 (Miss.1991).

¶ 10. The Court of Appeals found that the treating physicians were more knowledgeable than were Raytheon’s independent physicians who examined Miller solely .for the purpose of the workers’ compensation evaluation. It determined that John Gerhardt’s testimony as to whether Miller informed the company that she had sustained a second injury was not credible coming from someone who, allegedly, once threw Miller’s crutches into the trash. The Court of Appeals ruled that Raytheon’s witnesses had no personal knowledge of Miller’s second injury and that, because she and Miller were no longer friends, Ruthie Williams’s testimony had no credibility. Finally, it found that the overwhelming evidence supported an award of total disability to Miller.

¶ 11. Under statutory law, the Commission sits as the finder of fact. Inman v. CocaCola/Dr. Pepper Bottling Co. of Memphis, Tennessee, 678 So.2d 992, 993 (Miss.1996). The Commission’s findings of fact are entitled to substantial deference when challenged on appeal to the judiciary. Vance v. Twin River Homes, Inc. 641 So.2d 1176, 1180 (Miss.1994). A reviewing court’s function is as follows:

When the decision of the commission is before the circuit court on intermediate appeal, that circuit court may not tamper with the findings of fact, where the findings are supported by substantial evidence .... Where the circuit court reverses the Commission by simply [substituting] its judgment for that of the Commission without regard to whether the Commission’s findings were substantiated by the weight of evidence, the circuit court commits error.

Natchez Equip. Co. v. Gibbs, 623 So.2d 270, 274 (Miss.1993) (citing Roberts v. Junior Food Mart, 308 So.2d 232, 234-35 (Miss.1975)). See also, e.g., Lanterman v. Roadway Exp., Inc., 608 So.2d 1340, 1345 (Miss.1992) (appeals court applies “deferential standard of review” to findings and decisions of Commission). Also,

[i]t is not the role of the circuit court to determine where the preponderance of evidence lies, when the evidence is conflicting, given that it is presumed that the Commission as trier of fact has previously determined which evidence is credible and which evidence is not. This highly deferential standard of review essentially means that this Court and circuit courts will not overturn a Commission -decision unless said decision was arbitrary and capricious.... [C]aselaw from this Court indicates that it is only in rather extraordinary cases that a circuit court should reverse the findings of the Commission.

Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1224-25 (Miss.1997) (citing Metal Trims Indus., Inc. v. Stovall, 562 So.2d 1293 (Miss.1990)).

¶ 12. An examination of the language of the circuit court order leads to the conclusion that what the circuit court ultimately did was simply to state a preference for the administrative judge’s order over the Commission’s order. There are many inconsistencies between Miller and her witnesses. McMinn, a co-worker testified regarding Miller’s activities the night of the alleged second injury. That testimony cannot be reconciled with Miller’s version of that night. Miller’s former supervisor, Ruthie Williams, disputes Miller’s story regarding the motivation for the claim. As to Miller’s allegation that Ray-theon was given proper notice, her supervisor and several former coworkers have different versions. Based on those factual findings, the Commission obviously found the defense witnesses to be more credible than Miller.

¶ 13. The Commission also serves as the ultimate fact finder in addressing conflicts in medical testimony and opinion. “Where medical expert testimony is concerned, this Court has held that whenever the expert evidence is conflicting, the Court will affirm the Commission whether the award is for or against the claimant.” Kersh v. Greenville Sheet Metal Works, 192 So.2d 266, 268 (Miss.1966). The Commission properly considered treating and examining specialists versus a general practitioner and chose to accept the version of the treating and examining specialists who did not see any of Miller’s disabilities as “total” or “permanent” disabilities.

¶ 14. The Commission found that Miller failed to prove an on the job injury to her back on August 6, 1996, and that she failed to prove any temporary or permanent disability for which she has not received compensation are not clearly erroneous nor contrary to the overwhelming weight of the evidence. The evidence presented in favor of the Commission’s decision is clearly more than the “scintilla of evidence” or lack of evidence required for reversal of the Commission’s decision.

¶ 15. The Court of Appeals majority repeatedly expressed its opinion regarding the credibility of witnesses, without giving any credence to which witnesses the Commission found credible. Pursuant to the substantial evidence standard, an appellate court’s belief as to the credibility of witnesses is irrelevant. The Commission, in its order, made a specific factual finding, on the record, that Ora Miller was not a credible witness: “Ms. Miller’s story strikes us as contrived or unbelievable.” The Commission further made a specific finding that the testimony of Eva McMinn, Jerry Don Burns and John Gerhardt was credible. The Court of Appeals was bound by the Commission’s factual findings and the Commission’s determinations as to which witnesses were credible. However, the Court of Appeals never discussed the Commission’s findings on the credibility of witnesses and improperly substituted its opinion regarding the credibility of witnesses for the findings of the Commission.

¶ 16. The record reveals that, despite having been released to return to work on August 1, 1996, Miller did not return until August 5, 1996. When Dr. Riley Jones examined Miller in June of 1998, she did not mention the alleged injury in August of 1996 or an automobile accident which occurred in August of 1997. When a patient gives a history to a physician which is inconsistent with allegations in a workers’ compensation case, this is a significant factor in support of denial of a claim. Hudson v. Keystone Seneca Wire Cloth Co., 482 So.2d 226, 227-28 (Miss.1986). Incredibly, Miller visited Dr. Stan-back on August 6, 1996, the day of the alleged second injury, but only told Dr. Stanback about the May 7, 1996, injury.

¶ 17. Miller’s credibility is further undermined because of testimony regarding her employment search. Answering interrogatories, she did not identify any employer with whom she applied for a job. Yet she testified at the hearing she had searched for employment at numerous places. Cox, Raytheon’s vocational rehabilitation expert, identified 17 possible job openings for which Miller would be qualified and could work even with medical restrictions given to her (by only one doctor, Dr. Stanback). Amazingly, Miller testified that on the day after receiving Cox’s report in September, 1998, she went to all 17 places to inquire or apply for a job. It is also more than incredible that Miller maintains that she is permanently disabled because of a backstrain, even though she was able to visit 17 potential employers in two different towns in one day.

¶ 18. Miller’s credibility is also questionable concerning the end of her friendship with Ruthie Williams. At a hearing on the merits, Miller testified the friendship ended because Miller’s husband refused to buy Williams’s cigarettes at the Air Base Commissary. All three of Miller’s children corroborated this testimony. Williams testified that it ended because Miller accused Williams of spying on her for Raytheon. Williams was never confronted with the cigarette story. Instead Miller’s counsel explicitly accused Williams of spying.

¶ 19. Raytheon presented many witnesses to counter Miller’s allegations of the second injury. Eva McMinn met Miller during the work shifts of August 5, 1996, and August 6, 1996, the date of the alleged injury, and testified that she saw Miller performing normal duties between 5:00 a.m. and 6:00 a.m. McMinn was a fellow custodian who was picking up trash bags from buildings which were being cleaned by Miller. However, Miller testified that she hurt her back pulling a buffer around 2:30 a.m. She also stated that she went to an office to lie down until after 6:00 a.m.

¶ 20. Ruthie Williams also testified that Miller was a disgruntled worker unhappy with the way she was being treated by Raytheon. Miller told Williams several times she was going to do something to get off the night shift. She also made numerous statements to Williams that she was not.going to work but was going to get paid and that she was not coming back to work to put up with the “BS.” Williams also saw Miller on several occasions when Miller was not limping or showing any signs of injury.

¶ 21. Strangely enough, in her order, the administrative judge noted that she did not find Williams to be credible as a witness. However, Williams testified by her deposition. Thus, the administrative judge did not have an opportunity to observe Williams’s demeanor during her testimony and was in no better position to determine Williams’s credibility than the Commission.

¶ 22. Three of Miller’s former coworkers testified that she reported only one on the job accident. Gerhardt, her supervisor, did not have a conversation with Miller and saw no report concerning Miller on August 6,1996.

¶ 23. Riley Jones, M.D., an orthopedic specialist, testified that at the time of his evaluation, Miller suffered from no injury and had no impairment rating or restriction. Dr. Carro, a physical medicine and rehabilitation specialist, testified he returned Miller to work on July 31, 1996, with no impairment rating and no restrictions, and that her back condition in May, 1997, was unchanged from her condition of July 31, 1996. Scott Jones, M.D., of the Columbus Orthopaedic Clinic released Miller to go back to work twice before she stopped seeing him. Dr.' Glassaway, an orthopedic surgeon, indicated in his records that Miller suffered from a strained back and knee and further that she exerted a submaximal effort on testing. Only-Dr. Stanbaek testified that Miller was permanently and totally disabled based on his diagnosis of a back strain.

¶ 24. Miller alleges that notice of the injury of August 6, 1996, was provided to the employer in the form of off-work slips which were faxed by her lawyer to Raytheon. The only off-work slips introduced into evidence made no reference to any work-related injury. Instead, the two slips, dated August 6, 1997(sie) and August 14, 1996, contain absolutely no reference to a work-related injury. They state that Miller was under a doctor’s care for an unspecified medical problem. Also included in the record is a September 9, 1996, letter from Dr. Stanbaek addressed “To Whom it May Concern” and a similar March 13, 1997, letter. The September letter makes no reference to any work-related injury. The March letter refers to the May injury but no other work-related injuries, including the alleged August injury. These slips and letters clearly constitute Miller’s proof that a work-related injury occurred on August 6, 1996. Yet neither mentions such an injury. The Commission ruling that Miller did not sustain a work-related injury on or about August 6, 1996, is clearly supported by substantial evidence including the testimony of Miller’s coworkers, McMahon and Williams. The- Court of Appeals exceeded its limited scope of review in upholding the ruling of the circuit court which overturned the decision of the Commission.

¶ 25. We find that the Commission’s findings were neither arbitrary nor capricious and that they were supported by substantial evidence. While the administrative judge credited certain testimony, the Commission rejected the testimony because it was subjective and not corroborated by any objective evidence. The only persons testifying as to Miller’s alleged second injury were Miller and her family and her treating physician, Dr. Stanbaek. No Raytheon supervisors or employees witnessed the alleged second accident or saw Miller behaving in a way which would indicate that she had'been injured. Even though Dr. Stanbaek opined that Miller was totally disabled from the alleged second injury, there are absolutely no objective medical findings in his records. Dr. Stanbaek never recommended that Miller see a specialist or consult with a surgeon, yet he stated that Miller could not perform work activities. On the other hand, Dr. Carro performed medical tests, including an MRI, which were completely negative for any objective findings. His recommendation was for ■ Miller to go to physical therapy and then return to work. Several months after the alleged second injury, Dr. Carro found no neurological deficits. He stated that there were no changes in Miller’s left knee or back from his examination of her in July of 1996, at which time he told Miller to go back to work. These findings do not support a finding of total disability.

¶ 26. The circuit court and the Court of Appeals,'therefore, erred when they substituted their judgment for the Commission’s findings.

CONCLUSION

¶ 27. For these reasons, we reverse the judgments of the Court of Appeals and the circuit court and reinstate the decision of the Mississippi Workers’ Compensation Commission.

¶ 28. REVERSED AND RENDERED.

PITTMAN, C.J., SMITH, P.J., COBB AND CARLSON, JJ., CONCUR.

McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN JOINED BY EASLEY AND GRAVES, JJ. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

Dissenting.

¶29. The majority erroneously finds that the Court of Appeals substituted its opinion for that of the Commission. Applying the applicable standard of review, the Court of Appeals correctly found that the Commission’s findings were against the overwhelming weight of the evidence and therefore affirmed the circuit court’s order, denying reinstatement of the Commission’s findings. The Court of Appeals’ holding should be affirmed as the applicable law and evidence presented support its findings. For this reason, I dissent.

¶30. The Court of Appeals correctly stated the applicable standard of review:

Appellate review of compensation cases has been clearly stated. The Mississippi Supreme Court has stated “[t]hat the findings and order of the Workers’ Compensation Commission are binding on the court so long as they are ‘supported by substantial evidence.’ ” Liberty Mutual Ins. Co. v. Holliman, 765 So.2d 564, (¶6) (Miss.Ct.App.2000) (quoting Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994)). The Commission’s order will be reversed only if the court finds that the order was clearly erroneous and contrary to the overwhelming weight of the evidence. Liberty Mutual Ins. Co., 765 So.2d at (¶ 6). “A finding is clearly erroneous when, although there is some slight evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made by the Commission in its findings of fact and in its application of the Act.” J.R. Logging v. Hal-ford, 765 So.2d 580, (¶ 12) (Miss.Ct.App.2000). “Where no evidence or only a scintilla of evidence supports a Workers’ Compensation Commission decision, this Court does not hesitate to reverse.” Metal Trims Industries, Inc. v. Stovall, 562 So.2d 1293 (Miss.1990) (citing Universal Mfg. Co. v. Barlow, 260 So.2d 827 (Miss.1972)).

Raytheon Aerospace Support Servs. v. Miller, 850 So.2d 1159, 1172-73 (¶56) (Miss.Ct.App.2002).

¶ 31. The majority finds that the Court of Appeals was “bound by the Commission’s factual findings and the Commission’s determinations” as to which witnesses were credible and which witnesses were not credible. The majority fails to see the full picture regarding the applicable standard of review.

¶ 32. In order to apply the “substantial evidence” standard of review, it is implicit a court review the record and evidence presented to the Commission. Only such a review would permit a court to make a determination whether the Commission’s “order was clearly erroneous and contrary to the overwhelming weight of the evidence.” Liberty Mutual Ins. Co. v. Holliman, 765 So.2d 564, 568(¶ 4) (Miss.Ct.App.2000). Without looking at the record and reviewing the evidence, the court would not really be reviewing the Commission’s findings. The majority’s holding in effect all but eliminates our authority to review the record, evidence, and Commission’s findings. The majority would hold this Court unequivocally “bound” by the Commission’s decision regarding evidence. If this is the case, then what really is the purpose of reviewing the Commission’s findings? Such a holding in effect negates the need for judicial review of the Commission’s findings.

¶33. In analyzing the Commission’s findings regarding Miller, the Court of Appeals reviewed the record, looked at all the evidence and testimony and determined that the Commission’s ruling was indeed “not supported by substantial evidence” and “contrary to the overwhelming weight of the evidence.” Raytheon, at ¶ ¶ 56, 68-74 (citing Liberty Mutual Ins., 765 So.2d at (¶ 6) (quoting Vance v. Twin River Homes, Inc., 641 So.2d 1176-1180 (Miss.1994))). Although the Court of Appeals applied the applicable standard of review, it cannot be said, however, that such a broad and in-depth process of fact finding and weighing of evidence is subscribed by the “substantial evidence” standard of review. However, to a degree a certain amount of fact finding and weighing of evidence is necessary to determine whether substantial evidence was presented to support the Commission’s findings and to determine whether the Commission’s findings are against the overwhelming weight of the evidence. With that being said, the Court of Appeals applied the correct standard of review and did not overstep its authority in reviewing the Commission’s findings.

¶ 34. The majority finds that Court of Appeals overstepped its boundaries of review, its ruling should be overturned, and the Commission’s findings should be reinstated. Such a holding ignores the true weight of the evidence.

¶ 35. Although the Court of Appeals may have gone too far in its fact finding and rendition of the evidence, it cannot be said that after reviewing the facts, the Court of Appeals decision to affirm the circuit court order was error. As found by the Court of Appeals, there was only minimal evidence that Miller was not totally disabled. Raytheon, 850 So.2d at 1175 (¶ 69). In fact, the evidence and medical testimony relied upon in the Commission’s factual determinations was that of a physician who had only seen Miller once, despite the testimony, records, and affidavits of four other physicians who had treated Miller on a regular basis for her injuries. Id.

¶ 36. The overwhelming weight of the evidence established that Miller is in fact totally disabled. There was minimal and only scant evidence to support the Commission’s findings.

¶ 37. After reviewing the evidence, the Court of Appeals correctly found that there is a lack of substantial evidence to support the Commission’s findings and that the Commission’s findings are against the overwhelming weight of the evidence. Thus, the Court of Appeals properly affirmed the circuit court’s order. Accordingly, I would affirm the judgment of the Court of Appeals. For the above-stated reasons, I dissent.

EASLEY AND GRAVES, JJ., JOIN THIS OPINION.

      . Liberty Mutual Insurance Co. is Raytheon's workers’ compensation insurance carrier.