author: | THIBODEAUX, Judge.

text:
    Terry and Ruth CLELAND v. CITY OF LAKE CHARLES, et al. Terry and Ruth Cleland v. City of Lake Charles, et al.
    Nos. 02-805, 01-1463.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.
    Rehearing Denied April 16, 2003.

      John Bradford, Todd Ammons, Stock-well, Sievert, Viccellio, Clements & Shad-dock, Lake Charles, LA, for City of Lake Charles and Gerard Jones.
    Christopher P. Ieyoub, Plauche, Smith & Nieset, Lake Charles, LA, for Calcasieu Parish School Board and Washington National Insurance Company.
    Thomas Lorenzi, David D. Palay, Jr., Lorenzi, Sanchez & Palay, L.L.P., Lake Charles, LA, Earl G. Pitre, Pitre, Halley & Sikich, Lake Charles, LA, for Terry E. Cleland and Ruth P. Cleland.
    Thomas Justin Miller, Waller & Associates, Mandeville, LA, for Automobile Insurance Company of Hartford, Connecticut.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   | THIBODEAUX, Judge.

In this personal injury case arising out of a motor vehicle accident involving an employee of the City of Lake Charles (the City) and Terry E. Cleland, the plaintiffs, Terry E. Cleland and Ruth P. Cleland, appeal a judgment of the trial court, entered pursuant to a jury verdict, which found Mr. Cleland to be thirty-one percent at fault in the vehicular accident and in awarding them what they consider to be abusively low medical expenses and general damages. They assail the decision of the trial judge to allow a biomechanics expert to testify on the issue of causation. The City’s answer to the Clelands’ appeal asserts that the trial court erred in assessing it with payment of one-hundred percent of the court costs and the jury erred in finding that it and Gerard Jones, the City employee involved in the accident with Mr. Cleland, to be sixty-nine percent at fault in causing the accident.

Mrs. Cleland, an employee of the Calca-sieu Parish School Board (School Board), was covered by a health insurance policy issued to the School Board by Washington National Insurance Company (Washington National). The School Board and Washington National appeal the trial court’s judgment in favor of the Clelands relieving them from reimbursement of medical bills it paid for the injuries suffered by Mr. Cleland in the accident. Further, the School Board asserts that the trial court erred in failing to declare that it no longer owes health insurance coverage to the Cle-lands. Further, it asserts that the amounts awarded by the jury for general damages and medical expenses were abusively low.

For the following reasons, we find that the trial judge erred in admitting the testimony of Dr. Scott Krenrich, the City’s expert on biomechanics. The jury did not err in its apportionment of thirty-one percent fault to Mr. Cleland and sixty-nine percent fault to the City and Mr. Jones. Further, we find that, because the trial judge | ^improperly admitted the testimony of Dr. Krenrich, and we cannot determine the weight the jury accorded his testimony in reaching its decision on the amount of damages, we remand the case to the trial court on the issue of damages. With respect to the School Board and Washington National’s assignments of error, we find that the trial court did not err with regard to the health insurance coverage and reimbursement issues. We also conclude that the trial court correctly assessed court costs.

I.

ISSUES

We shall consider whether:

(1) the trial court erred in the admission of Dr. Krenrich’s testimony;
(2) the allocations of fault to the parties were proper;
(3) the trial court erred in refusing to order the Clelands to reimburse the School Board and Washington National for the medical expenses they paid to the Clelands; and,
(4) the School Board no longer owes health insurance benefits to the Cle-lands.

II.

FACTS

The essential facts of the accident are not in dispute. On October 18, 1991, Mr. Cleland was driving a 1988 Ford Thunderbird automobile. At the same time, Mr. Jones was operating a pick-up truck owned by the City. Mr. Jones was in the course and scope of his employment with the City when he made a wide right turn and sideswiped the Cleland vehicle. Mr. Jones looked down for a few seconds to pick up some papers that had fallen on the floorboard of the truck. Mr. Cleland attempted to avoid the impact by turning his vehicle to the right. The impact occurred [oin Mr. Cleland’s lane of travel. The right tire of the Cleland vehicle came to rest in the yard next to his land of travel. Mr. Jones was ticketed for careless operation by the officer who investigated the accident.

At the time of the accident, Mr. Cleland had been under the care of Dr. Dean Moore, a neurosurgeon, for problems related to his lower back since 1981. Mr. Cleland admitted to a long history of lower back problems. In July 1986, Mr. Cleland underwent a lumbar laminectomy from which he recovered and returned to work in February 1987. However, by March 1987, Mr. Cleland complained of pain in his left buttocks. He continued to complain of pain and resumed care with Dr. Moore. Mr. Cleland did not go back to work until September 1987, when Dr. Moore released him to full duty. During this time Mr. Cleland was also seeing Dr. Harper Willis, a psychiatrist, who was deceased at the time of trial.

On August 23, 1988, Mr. Cleland was involved in a motor vehicle accident where he suffered a lumbar strain and concussion. By September 12, 1988, Mr. Cleland had recovered from his injuries and was again released to return to work at full duty. In January 1989, Mr. Cleland complained about severe headaches and being unsteady on his feet. The next time Mr. Cleland saw Dr. Moore about his low-back problems was on April 3, 1989, when Mr. Cleland informed the doctor that he tripped on some computer cords at work and twisted his back. Mr. Cleland also injured his foot and broke a tooth in the trip-and-fall accident.

Medical diagnostics tests revealed that Mr. Cleland suffered slight bulging of the disks and scar tissue from his previous laminectomy at L5-S1. An MRI revealed mild degenerative changes of the second, third, and fourth disk and annular bulging at the L4 disk. An EMG study, a test that shows the electrical activity of the muscles and nerves in the back and legs, revealed signs of root lesion Ron the right side of Mr. Cleland’s back at the SI level. By January 1990, Mr. Cleland still complained of back pain radiating down his left leg. However, by March 1990, Mr. Cleland’s radiating pain reached his right leg. A myelogram was conducted on July 26, 1990, that revealed a mild to moderate anterior defect at L4-L5. Dr. Moore felt that Mr. Cleland would need more surgery on his back.

On October 4, 1990, Mr. Cleland underwent a second surgery for a laminectomy at the L4-L5 and a three level fusion of the L5-S1 vertebrae. Mr. Cleland saw Dr. Moore again on October 29, 1990, and he complained about some pain and stiffness in his back. Dr. Moore concluded that it was incisional pain and that Mr. Cleland was doing well. Mr. Cleland also told Dr. Moore about being involved in an accident that occurred in June 1990, prior to his surgery in October 1990. Mr. Cle-land explained to Dr. Moore that he did not tell him about the June 1990 accident because he was afraid that workers’ compensation would not pay for his surgery and that he was in pain and wanted the surgery done.

At his February 1991 visit with Dr. Moore, Mr. Cleland told the doctor that he had been doing well until he sneezed and experienced a sudden onset of pain in his low back that radiated to the back of his right leg with associated numbness and tingling. Since it was only four months post-operation, Dr. Moore suggested that some time pass to see if the pain would subside. When he continued to complain about his low back pain in March 1991, Dr. Moore ordered diagnostic tests. An MRI revealed some scar tissue, mild effuse annular bulging, mild bilateral neural forami-nal narrowing at L4-L5 and at L5-S1 it showed some scar tissue. A tomogram, a special type of x-ray conducted by Dr. R. Dale Bernauer, an orthopedic surgeon, showed that the fusion performed six months prior was solid.

|BMr. Cleland continued to complain of pain, but his treating physicians did not think his pain could be relieved by further surgery. Thus, Mr. Cleland was referred to the Touro Clinic in New Orleans for pain management treatment. Mr. Cleland was evaluated at the Touro Clinic on June 5, 1991, and Dr. Moore recommended that he be accepted into the pain clinic. Mr. Cleland, however, was not accepted. Dr. Moore continued to treat Mr. Cleland and saw him in July 1991 and September 1991. During those visits, Mr. Cleland complained of increasing pain in his back and both legs. Dr. Moore was still attempting to get authorization for Mr. Cleland to be treated at the Touro Clinic. During an October 7, 1991 visit, Mr. Cleland continued to complain about his back and leg pain. In addition, he complained that his knee was in pain and that he experienced numbness in his face. The face numbness did not last very long.

Although at his last visit Dr. Moore recommended that Mr. Cleland return in two months, the doctor next saw Mr. Cle-land on October 26, 1991, because he had been involved in the automobile accident that is the subject of this appeal on October 18, 1991. Dr. Moore testified that Mr. Cleland gave him the following history:

He said he didn’t know if he hit his head on anything, but he thinks he was briefly unconscious immediately after the accident, only just a few seconds. He was dazed somewhat. Been having some headaches since then. They were located in the back of the head. Often they became generalized in nature. He also, noted that light would tend to bother his eyes. He had some blurring of his vision. He’s had decreased hearing in the left ear, but he had this before the accident and there seemed to be no change since the accident. Also said he’d been sleeping a lot since the accident. Had some dizziness and some weakness in his legs and numbness and tingling in his arms and hands. He’s been having a frequency of urination but no incontinence of urine. Regarding his neck pain radiating in the back of the head in the interscapular area, there was no radiation of pain into the upper extremities. | fiHe’s not had any weakness in the arms but the numbness and tingling in his arms and hands. Bending and twisting his neck about will tend to aggravate his neck pain.
He’s had chest pain since the accident. Chest pains at times would feel like a tight band around his chest; at times it felt like a deep pain in the front part of his chest.
Regarding low back pain, it would tend to radiate to both legs so it felt it was burning. Pain in his legs, weakness in both legs, but no numbness and tingling in the legs. He had noted that bending and twisting, coughing and sneezing, riding in a car all would aggravate his complaints of pain in his back and legs. He underwent — I reviewed the history of what we’ve already talked about.... Says he continues to have the back and leg pain. He complained of that on his October 7, '91 visit up until the time of the accident, but he said his back and leg pain had been worse since the accident of October 18. Said he had had a concussion, mild neck injury in the past, but none in recent years, and not been having any headaches or neck pain or chest pain prior to this accident.

A CAT scan performed on October 30, 1991, revealed a bulging disk at L3-L4 and a cleft — a break — in the fusion at L4-L5. Mr. Cleland was hospitalized on November 19, 1991, for the purpose of having a mye-logram and a CAT scan performed. The myelogram revealed the cleft as well as a herniated disk at the C6-C7 on the left of Mr. Cleland’s neck. Dr. Moore testified that the herniated disk in Mr. Cleland’s neck had not been seen before and that it corresponded with his complaints of tingling, numbness, and pain in his arm. Dr. Moore opined that the herniated disk in Mr. Cleland’s neck occurred because of his motor vehicle accident of October 18, 1991. Dr. Moore further opined that the cleft in Mr. Cleland’s back at the L4-L5 area was aggravated by the accident. Because Mr. Cleland’s back fusion was not intact, Dr. Moore conducted additional back surgery.

On December 10, 1991, Mr. Cleland underwent the first surgery, a partial hemi-laminectomy of the L4-L5 and L5-S1 disks, after the October 1991 accident. During the same surgery, Dr. Bernauer performed another three level 1Jumbar fusion. Removal of the herniated disk in his neck at the C6-C7 level was done on March 3, 1992. Mr; Cleland was still in pain. Tomograms conducted in early June 1992, revealed that Mr. Cleland suffered from a residual cleft on the right side of his spine. Dr. Bernauer explained that the tomography results meant that one side was fixed by the December 1991 surgery and the other side was not. Dr. Bernauer further explained that Mr. Cle-land’s fusion was not stable. At this time, Mr. Cleland complained of severe low back and neck pain. Upon the recommendation of and referral by Dr. Bernauer in September 1992, Dr. Jeffrey Kozak, an orthopedic surgeon in Houston, Texas, performed a four level anterior posterior reconstruction surgery at the L2-L3, L3-L4, and L4-L5 disk spaces. During his recuperation from the September 1992 surgery, Mr. Cleland had to wear a- lower body brace with a leg extension. Mr. Cle-land developed foot problems as a result of walking in the brace. Dr. Kozak testified that this consequence is not unusual.

To correct the problem with his foot, Dr. Kozak referred Mr. Cleland to Dr. John 0. Bishop, an orthopedic surgeon. Dr. Bishop found that Mr. Cleland had debris, arthritis, bone spurs, and scar tissue in the joints of his toes; thus, in April 1993 Dr. Bishop performed surgery. It was Dr. Bishop’s opinion that Mr. Cleland’s foot problems resulted from the October 1991 accident. Mr. Cleland’s foot problems persisted. In October 1994, Dr. Bishop performed another surgery to fuse the joints of his right big toe. In March 1995, Dr. Bishop performed another surgery to remove screws previously placed in Mr. Cle-land’s right foot. The same surgery to the left foot was conducted in April 1995. Because the fusion of the joints in Mr. Cle-land’s big toes did not take, he underwent two more toe joint fusion procedures, the first in September 1995 and the second in November 1995 performed by Dr. Bishop’s colleague, Dr. Grant Braley, also an orthopedic surgeon. Mr. Cleland’s final and |sninth surgical procedure post the October 1991 accident was performed by Dr. Bishop in February 1996 to remove the hardware in his right toe.

Mr. Cleland was treated by Dr. Harper Willis, a psychiatrist, prior to his October 18, 1991 accident. After Dr. Willis’ death, Mr. Cleland continued his psychiatric treatment with Dr. Aretta Rathmell, who first saw him in September 1997 and diagnosed Mr. Cleland as suffering from dys-thymia, chronic depression, chronic pain syndrome, and depression secondary to his physical pain. It was Dr. Rathmell’s opinion that Mr. Cleland is not trying to live his life through his lawsuit.

The defendants presented several witnesses who reviewed Mr. Cleland’s medical records as well as the accident records. Dr. Scott Krenrich was qualified as an expert in the fields of emergency room medicine, physics, and biomechanical engineering. His testimony was essentially that the mechanical forces of the accident were insufficient to cause any of Mr. Cle-land’s injuries. Dr. Lynn Foret, an orthopedic surgeon who reviewed Mr. Cleland’s medical records but did not treat him, opined that none of Mr. Cleland’s medical problems were the result of the car accident. A psychiatrist, Dr. Edward Gripon, concluded that Mr. Cleland’s psychiatric problems were unrelated to the accident. An accident reconstructionist called by the defendants testified that Mr. Cleland could have avoided the accident by stopping before impact.

In connection with Mr. Cleland’s injuries in the accident, the School Board and its insurer, Washington National, sought reimbursement of medical expenses Washington National paid to and on behalf of Mr. Cleland. Mr. Cleland’s wife was employed by the School Board and covered by a policy of health insurance issued by Washington National to the School Board. The health insurance policy contained a reimbursement provision. It is not disputed that the Clelands signed ^[¡¡separate reimbursement provision approximately one month after Mr. Cleland’s October 1991 accident. Washington National paid $360,188.60 for medical expenses in the years after the accident. Through their attorney, the Clelands entered into a settlement agreement with their un/underin-sured motorist carrier, Automobile Insurance Company of Hartford Connecticut, a wholly owned subsidiary of Travelers Property Casualty Corporation (Travelers), for the sum of $600,000.00. Neither the School Board nor Washington National was made a payee on the settlement check. The Clelands kept the money and did not reimburse the School Board or Washington National despite the reimbursement agreement.

The School Board and Washington National filed a “Supplemental and Amending Petition of Intervention and Declaratory Judgment.” The trial court did not rule on the School Board and Washington National’s petition until the conclusion of the Cleland’s main demand. Although the trial court found that the reimbursement agreement entered into by the Clelands, the School Board and Washington National was valid, it ultimately concluded the School Board and Washington National were not entitled to reimbursement under the terms of the agreement. A judgment incorporating the trial court’s finding on this issue was signed on August 3, 2001, and filed on August 7, 2001. The trial court did not address the issue of whether the School Board and Washington National still owed the Clelands health insurance benefits. It is from this judgment that the School Board and Washington National appeal.

JlflUI.

LAW AND DISCUSSION

Expert Testimony/Daubert

The Clelands assert that the trial court erred in admitting the testimony of defense witness Dr. Krenrich. They argue that Dr. Krenrich was not properly qualified as an expert and that his opinions were not based on “demonstrated and acceptable scientific principle.” In other words, the Clelands assert that the trial court failed to adhere to the Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and State v. Foret, 628 So.2d 1116 (La.1993) gatekeeping function. In connection with their assertion that the trial court improperly allowed Dr. Krenrich to testify, the Clelands urge that the probative value of his testimony was substantially outweighed by its unfair prejudicial effect. The defendants assert that the trial court’s admission of Dr. Krenrich’s testimony as an expert was proper under Daubert/Foret and La.Code Evid. arts. 702 regarding expert testimony and 403 regarding exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.

The trial court allowed Dr. Kren-rich to testify as an expert in emergency room medicine, physics, and biomechanical engineering and in particular to testify about mechanical forces of the accident and how those forces were insufficient to cause any of Mr. Cleland’s injuries. The starting point for analyzing the trial court’s actions is La.Code Evid. art. 702 which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In Comment (d) to La.Code Evid. art. 702 states that the trial judge should have “[bjroad discretion ... accorded ... in his determination as to whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert.” With respect to who should be allowed to testify as an expert, well-established case law supports the trial court’s great discretion and no reversal of the trial court’s decision on appeal absent clear error. Mistich v. Volkswagon of Germany, Inc., 95-939 (La.1/29/96); 666 So.2d 1073, on rehearing on other grounds, 95-939 (La.11/25/96); 682 So.2d 239; Massie v. Cenac Towing Co., Inc., 00-1596 (La.App. 3 Cir. 4/25/01); 796 So.2d 14, writ denied, 01-1511 (La.8/31/01); 795 So.2d 1213. Manifest error is only found when the court was clearly wrong in accepting expert’s opinion upon which it relied. Tullis v. Rapides Parish Police Jury, 95-905 (La.App. 3 Cir. 1/17/96); 670 So.2d 245, writ not considered, 96-0444 (La.3/29/96); 670 So.2d 1241. Louisiana has adopted the United States Supreme Court’s interpretation of Federal Rule of Evidence 702, which mirrors La. Code Evid. art. 702. Foret, 628 So.2d 1116; White v. State Farm Mut. Auto. Ins. Co., 95-551 (La.App. 3 Cir. 7/17/96); 680 So.2d 1; Daubert, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469. Daubert calls upon trial courts to perform a gatek-eeping function by deciding whether the expert scientific evidence or testimony is both reliable and relevant. Daubert, 509 U.S. at 588, 113 S.Ct. at 2794.

In Daubert, the Court overruled the well-known case on admissibility of scientific expert testimony, Frye v. United States, 293 F. 1013 (D.C.Cir.1923), that held that such testimony is inadmissible unless it is based on a scientific technique that is “generally accepted” as reliable in the relevant scientific community. Daubert overruled Frye on the ground that Frye’s “general acceptance” test is inconsistent with the more liberal approach of Rule 702 of the much later-adopted Federal Rules Pof Evidence. Daubert also held that, even under Rule 702, “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. at 2795.

The trial court in fulfilling its gatekeeping function with respect to admitting expert testimony should consider the following non-exclusive factors: 1) whether a theory or technique “can be (and has been tested)”; 2) “whether the theory or technique has been subjected to peer review and publication”; 3) “the known [or] potential rate of error” in using a particular scientific technique “and the existence and maintenance of standards controlling the technique’s operation”; 4) whether the theory or technique has been generally accepted in the particular scientific field. Daubert, 509 U.S. at 593-94, 113 S.Ct. 2797. The Daubert court introduced its four “general observations” by stating: “Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test.” Daubert, 509 U.S. at 593, 113 S.Ct. at 2797. The court concluded its list of four general observations by stating: “The inquiry envisioned by Rule 702 is, we emphasize, a flexible one.” Thus, the “general observations” listed in Daubert are not a list of requirements that must be met in each instance of proposed expert testimony or even a list of factors that are necessarily applicable to all types of expert testimony. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Therefore, we read the Foret court’s adoption of Daubert in light of the foregoing.

In the present case, the trial judge conducted what he termed a “Daubert hearing” outside of the jury’s presence. As noted above, a Daubert hearing is used to determine if the scientific basis of an expert’s testimony is sound. Stated differently, is the methodology supporting the expert’s conclusions reliable and relevant? At the Daubert hearing, Dr. Kren-rich testified that the basis of his opinion | ^involved biomechanics and Newtonian physics that predict how objects will move or their motion change under specific circumstances. He also testified that biome-chanics and Newtonian physics would allow him to testify as to what happened to Mr. Cleland’s body when he collided with the vehicle operated by Mr. Jones.

Although at the outset the trial judge termed the hearing involving Dr. Krenrich a Daubert hearing, a thorough reading of the transcript of that hearing reveals that in fact it was not a Daubert hearing. In essence, the hearing merely questioned the proposed expert’s qualifications as an expert in his particular fields as opposed to the scientific validity of the methodology underlying his opinion in the case. Moreover, the trial judge admonished plaintiffs counsel that the issue at the hearing was whether Dr. Krenrich “possessed] the qualifications to give opinions.” An expert’s qualifications to give an opinion is not the purpose of a Daubert hearing. It appears, although it is not very clear, that Dr. Krenrich’s expert testimony was to be based on biomechanical and “Newtonian” physics theories. The trial judge failed to consider any of the required factors for assessing the eviden-tiary reliability of biomechanics and/or Newtonian physics in side-impact vehicle collisions to occupants of those vehicles nor was there any focus on the principles and methodology of those theories. The trial court simply focused on Dr. Krenrich’s educational background and experiences. Information about Dr. Krenrich’s qualifications to testify about his findings based on certain tests was insufficient to establish the evidentiary reliability of those tests as required by Daubert/Foret. Thus, because the defendants failed to establish the evi-dentiary reliability of Dr. Krenrich’s methodology in determining the possible injury to a person involved in a side-impact vehicle collision or even to make clear what methodologies and/or theories Dr. Kren-rich relied upon, his testimony should not have been admitted.

| uAllocation of Fault

The Clelands contest the allocation of thirty-one percent of the fault for causing the accident to Mr. Cleland. On the other hand, the City contends that the jury erred in finding Mr. Jones sixty-nine percent at fault in causing the accident. Apportionment of fault is a question of fact, subject to the manifest error/clearly wrong standard of review. Sims v. State Farm Auto Ins. Co., 98-1613 (La.3/2/99); 731 So.2d 197. In reviewing allocation of fault, the Louisiana Supreme Court in Clement v. Frey, 95-1119, p. 7 (La.1/16/96); 666 So.2d 607, 610-11, explained, “there is an analogy between excessive or inadequate quantum determinations and excessive or inadequate fault percentage determinations. In both, the trier of fact, unlike the appellate court has had the benefit of witnessing the entire trial and of reviewing first hand all the evidence.” Thus, we must determine whether the jury in the present case was clearly wrong or manifestly erroneous in the allocation of fault between the parties.

We have examined the record and find no manifest error by the jury in determining that Mr. Jones was sixty-nine percent at fault and Mr. Cleland was thirty-one percent at fault for the accident. There was testimony that Mr. Cleland could have avoided the accident. It is apparent that the jury believed that testimony; thus, there is no merit to this contention.

Quantum

The Clelands contend that the damages awarded to Mr. Cleland by the jury are inadequate. The City asserts that the Clelands were awarded the damage amount directly related to the injuries Mr. Cleland sustained in the accident of October 18, 1991, and that the amount was adequate to compensate the Clelands. The ordinary standard for an appellate court’s review of damages was well established in Reck v. Stevens, 373 So.2d 498 (La.1979) and was confirmed in Youn v. Maritime Overseas, Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Suffice it to say, we will not disturb a trial court’s award of damages unless we find that the award constitutes an abuse of the trial court’s discretion. However, in the present case, we find that the jury verdict is tainted due to a material legal error made by the trial judge. Therefore, the verdict is untrustworthy and must be overturned. However, when an otherwise complete trial record exists, the general rule is that the appellate court should, if it can, conduct a de novo review of the record and render a judgment. Jones v. Black, 95-2530 (La.6/28/96); 676 So.2d 1067.

The Clelands request that this court reverse the judgment of the trial court and remand this case for further proceedings. Only when a view of the witnesses is essential to a fair resolution of conflicting evidence should the case be remanded for a new trial. Jones, 676 So.2d 1067 (citing Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La.1980)). As we noted above, the trial judge qualified Dr. Krenrich as an expert in the fields of emergency room medicine, physics and biomechanics. He testified that the “partial impact collision” or “sideswipe impact” that occurred between the vehicles operated by Mr. Cleland and Mr. Jones on October 18, 1991, was not strong enough to cause the extent of damages suffered by Mr. Cleland. Dr. Krenrich used his expertise to describe how Mr. Cleland’s body would have moved during the accident. He further opined that it was unlikely that Mr. Cleland hit his head on any part of his vehicle; thus, there was no “mechanism for any type of head injury.” Dr. Kren-rich further testified that there was no way Mr. Cleland suffered any type of neck, back, knee, or ankle injury in the accident.

It is clear from the jury’s verdict that it found that Mr. Cleland suffered some type of injury because they awarded him the amount of $5,000.00 in general |1fidamages and the amount of $869.50 for payment of past medical expenses. It is also clear from the record that Mr. Cleland suffered for many years with a myriad of physical problems due to other accidents prior to the October 18, 1991 accident that is the subject of the present appeal. We note that the jury could have found that the October 1991 accident only caused a slight aggravation of his previous problems; thus, it did not award a larger amount in general damages or the entire amount of Mr. Cleland’s medical expenses. However, because this was a jury trial, we do not know the weight the jury attached to Dr. Krenrieh’s testimony in reaching their decision. Faced with only the cold record and conflicting evidence as to whether Mr. Cleland was injured in the accident, we are convinced that this case must be remanded to the trial court for a new trial on the issue of the amount of damages.

Trial Court Assessment of Costs

The City and Mr. Jones contend that the trial court erred in assessing them with one-hundred percent of the court costs. Under La.Code Civ. P. art. 1920, “the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” See, Adams v. Canal Indem. Co., 99-1190 (La.App. 3 Cir. 5/10/00); 760 So.2d 1197, writ denied, 00-1636 (La.9/22/00); 769 So.2d 1212, 00-1637 (La.9/22/00); 769 So.2d 1213. Under this statute, the trial judge has great discretion in awarding costs, and his assessment of costs can be reversed by the appellate court only upon a showing of an abuse of discretion. George v. Reliance Ins. Co., 01-1336 (La.App. 3 Cir. 6/5/02); 819 So.2d 453. As a general rule, a party cast in judgment is taxed with costs of the proceedings. Adams, 760 So.2d 1197.

In light of the fact that Mr. Cleland prevailed on his claim, albeit not in an amount he thought appropriate, and the great discretion allowed the trial court in taxing court costs, we cannot say that the trial court abused this great discretion in li7taxing all costs to the City and Mr. Jones. As such, the decision of the trial court to tax the City and Mr. Jones with all costs was not in error.

Reimbursement of Medical Expenses Paid by the School Board and Washington National

In the years following Mr. Cle-land’s October 18, 1991 accident, the School Board and its health insurance provider, Washington National, paid the Cle-lands $360,188.60 for medical expenses incurred by Mr. Cleland. The School Board and Washington National assert that they are entitled to be reimbursed by the Cle-lands from funds they received in a settlement with their un/underinsured motorist carrier pursuant to a reimbursement agreement found to be valid by the trial court. Although the trial court concluded that the reimbursement agreement was valid, it nevertheless concluded that the School Board and Washington National were not entitled to reimbursement under the terms of that agreement because the “uninsured motorist carrier was not a ‘third party’ as defined by the reimbursement provision of the policy.” The reimbursement provision in question is as follows:

Reimbursement
There shall be no coverage for expenses incurred by an Insured:
1. as a result of an injury or sickness which is claimed by the insured to have been the result of an act or omission of a third party; and
2. for which payment is made to or on behalf of the Insured by such third party.
If a claim is made to the Company for expenses:
1. covered under the policy; and
2. for which, in the opinion of the Company, a third party may be liable;
the Company will pay benefits, provided the Insured agrees, in writing, to reimburse the |1RCompany when payment is made by such third party.
The Company’s right to reimbursement will be limited to the lesser of:
1. the amount of benefits paid by the Company; or
2. the amount paid by the third party which represents reimbursement to the Insured for such expenses.
Any payment for reimbursement of expenses incurred as a result of injury or sickness which is made by a third party’s insurance carrier(s) will be deemed to be payment by the third party ...

The Clelands also signed a separate reimbursement provision agreeing to “reimburse Washington National ... for payments made to [them] by a third party on account of said injury or sickness.”

The issue of whether the Cle-lands owe the School Board and Washington National reimbursement for funds paid by the School Board and its health care insurance provider turns on interpretation of the reimbursement agreements. More specifically, the issue turns on the interpretation of “third party” in the reimbursement agreements of the insurance policy. Interpretation of an insurance contract is a question of law. Minor v. Casualty Reciprocal Exchange, 96-2096 (La.App. 1 Cir. 9/19/97); 700 So.2d 951, writ denied, 97-2585 (La.12/19/97); 706 So.2d 463. Further, statutory interpretation is a question of law. Shell v. Wal-Mart Stores, Inc., 00-0997 (La.App. 3 Cir. 3/21/01); 782 So.2d 1155, writ denied, 01-1149 (La.6/15/01); 793 So.2d 1244. Appellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. City of Baker Sch. Bd. v. East Baton Rouge Parish Sch. Bd., 99-2505 (La.App. 1 Cir. 2/18/00); 754 So.2d 291. The parties do not dispute that the agreements are valid. The common intent of the parties guides the interpretation of a contract. La.Civ. Code art.2045. If the words of a contract are clear, explicit, and lead to no absurd results, its interpretation is constrained to the “four corners” of the document. Hebert v. Insurance Ctr. Inc., 97-298 (La.App. 3 Cir. 1/7/98); 706 So.2d 1007, writ denied, 98-353 (La.3/27/98); 716 So.2d 888. The court must determine whether the words of a contract are clear or whether they are ambiguous because this is a question of law, not fact. Id. The intention of the parties is to be determined in accordance with the plain, ordinary, and popular sense of the language used in the agreement and by giving consideration on a practical basis to the instrument in its entirety. Coates v. Northlake Oil Co., Inc., 499 So.2d 252 (La.App. 1 Cir.1986), writ denied, 503 So.2d 476 (La.1987). Additionally, any ambiguity as to the meaning provided in the provisions is to be interpreted against the insurer as drafter of the contract. La.Civ.Code art.2056; Livas v. State Farm Mut. Ins. Co., 99-1169 (La.App. 1 Cir. 7/18/00); 797 So.2d 694.

The term “third party” is not defined in the policy. However, here the reimbursement provisions specifically and clearly state that the third party is the one whose act or omission caused harm to the insured. The agreements further state that if the third-party tortfeasor’s insurer makes payments to the injured insured, Washington National is entitled to reimbursement of the funds it expended from that source. The contract says absolutely nothing about Washington National being reimbursed when its injured insured receives funds for medical expenses from another type of insurance policy — here Mr. Cleland’s un/underinsured motorist provider — not connected to the original tortfeasor. Further, in Washington National Insurance Co. v. Brown, 94-1346 (La.App. 1 Cir. 4/7/95); 654 So.2d 724, writ denied, 95-1699 (La.10/13/95); 661 So.2d 497, although one of the issues in the case was whether the agreement entered into by the parties was one of subrogation or reimbursement, the Igpsame language in the Clelands’ reimbursement agreement was used in Brown. The first circuit stated that the “clause ... requires the insured to pay back the insurer from the amount the insured recovers from the true debt- or.” Id. at 727. Washington National paid Mr. Cleland’s medical bills with the understanding that if it was later determined that a third party was responsible and he recovered medical costs from that third party, he would then reimburse the medical costs paid by Washington National. This interpretation comports with the policy of requiring the actual person responsible for causing damages to repair that damage. La.Civ.Code art. 2315.

Thus, we find no error in the trial court’s conclusion that the School Board and Washington National are not entitled to reimbursement from the settlement funds the Clelands received from Mr. Cle-land’s un/underinsured motorist carrier. In connection with this conclusion, we find that the trial court correctly found that any medical expenses awarded the Cle-lands in their suit against the tortfeasors are reimbursable to the School Board and Washington National. However, due to our decision to reverse the damage portion of jury’s verdict and remand on the issue of damages, there are no medical expense funds from which Washington National can be reimbursed. Likewise, our decision on the damage portion of this case pretermits a discussion regarding the School Board and Washington National’s assignment of error pertaining to the inadequacy of the jury’s damage award.

The School Board and Washington National also contend that the trial court erred in failing to render a judgment declaring that the School Board no longer owes health insurance benefits to the Clelands. The trial court’s failure to address this issue is a rejection of the relief requested on the issue. Livings v. Langston Companies, Inc./Continental Bag Div., 96-636 (La.App. 3 Cir. 12/5/96); 685 So.2d 405. Further, the presumption is that the trial court was correct in rejecting the requested relief. Nyquist v. Jefferson Parish Sheriff’s Office, 01-1378 (La.App. 5 Cir. 5/15/02); 821 So.2d 39, writ not considered, 02-1686 (La.10/4/02); 826 So.2d 1112 (citing Karisny v. Sunshine Biscuits, Inc., 215 So.2d 201 (La.App. 3 Cir.1968)). The burden is on the plaintiff to prove otherwise. Id. The School Board and Washington National argue that the Clelands breached their contractual agreement to reimburse them under both the insurance policy and the separate reimbursement agreement, and therefore, the Clelands are no longer owed any health benefits. It is apparent that the trial court, finding that the Clelands did not owe reimbursement to the School Board and Washington National, concluded that no breach of contract occurred and, therefore, were still owed health insurance benefits. We agree and find no merit to the School Board’s and Washington National’s position.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed insofar as it holds that Terry Cleland was thirty-one percent at fault and Jones was sixty-nine percent at fault in causing the motor vehicle accident on October 18, 1991, and insofar as it assessed one-hundred percent of the court costs to the City of Lake Charles and Gerard Jones. Further, the trial court judgment is affirmed with respect to its holding that Terry and Ruth Cleland do not owe reimbursement to the Calcasieu Parish School Board and its health care insurer, Washington National Insurance Company, from funds paid to them by Terry Cleland’s un/underinsured motorist insurance and in not declaring that the Calcasieu Parish School Board no longer owes the Terry and Ruth Cleland health insurance benefits. The trial court judgment is reversed and set aside insofar as it concludes that the testimony of expert witness, Dr. Scott Krenrich was properly admitted and with respect to the damage amount | ^awarded. The matter is remanded to the trial court for the purpose of conducting a trial solely on the issue of general and special damages. All costs are assessed to defendants, the City of Lake Charles, the Calcasieu Parish School Board, and Washington National Insurance Company in the amount of $11,180.50.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


source: Caselaw Access Project

author: McMILLIN, C.J.,

license: Public Domain

text:
    Bobby Earl GRIFFIN, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00287-COA.
    Court of Appeals of Mississippi.
    Jan. 21, 2003.
    Rehearing Denied March 18, 2003.
    David Clay Vanderburg, attorney for appellant.
    Office of the Attorney General by: Billy L. Gore, attorney for appellee.
    Before McMILLIN, C.J., IRVING and MYERS, JJ.
   McMILLIN, C.J.,

for the Court.

¶ 1. Bobby Earl Griffin was convicted in Panola County Circuit Court of driving under the influence in a negligent manner and thereby causing the death of another person. He appeals that conviction raising only one issue. Griffin asserts that the prosecuting attorney, during cross-examination, violated his Fifth Amendment right against self-incrimination by attempting to put before the jury the fact that Griffin had refused to discuss the incident with investigating officers shortly after the accident. Griffin contends that this line of inquiry was so prejudicial to a fair trial that the circuit court erred in denying his mistrial motion. We disagree and affirm the conviction and judgment of sentence.

I.

Facts

¶ 2. Griffin was involved in a car accident in Panola County that resulted in the death of Becky Melton. Evidence at trial showed that Griffin’s blood alcohol content at the time of the accident was .25%, which was well beyond the legal limit to operate a motor vehicle.

¶ 3. Griffin elected to testify in his own defense at trial. The essence of his testimony was that all of the State’s evidence was false, that he could not possibly have had such a high blood alcohol content on the day of the accident, and that the accident actually occurred when Melton crossed over into his lane of travel.

¶ 4. During cross-examination of Griffin, the prosecutor asked, “Well, before today, have you ever been given a chance to tell your side of this story?” Griffin’s attorney promptly objected. After some discussion outside the jury’s presence regarding the State’s objective in asking that question, the trial court sustained the objection. Griffin’s subsequent motion for a mistrial, however, was denied. The court offered the view that, because the inquiry was promptly objected to and went unanswered, it did not appear that any irreversible prejudice to the defendant’s right to a fundamentally fair trial had occurred. Instead of granting a mistrial, the trial court promptly admonished the jury that the question itself was improper and that jurors should disregard it in their deliberations. Later, in its general instructions, the court also instructed the jury that it “should not speculate as to possible answers to questions the Court did not require to be answered; further, you should not draw any inference from the content of those questions.”

¶ 5. It is not entirely clear what purpose the prosecution intended to accomplish by the inquiry. Outside the jury’s presence, the State’s attorney seemed to indicate that he was not seeking to let the jury know about Griffin’s earlier refusal to give a statement to investigating officers, but was instead attempting to lay a predicate to attack Griffin’s eleventh-hour list of potential defense witnesses. Nevertheless, the trial court interpreted the question as having at least the potential to raise Griffin’s earlier decision to remain silent in the face of questioning by police and treated the matter in that light. Whether eliciting this information was the intended purpose or merely an unintended consequence of the inquiry, it is conceivable that Griffin could have understood the question in that light and responded accordingly. We will consider the issue, therefore, on the assumption that the question was objectionable for the reasons contended by Griffin in this appeal.

¶ 6. We have little trouble in resolving this issue against Griffin. The decision to grant a motion for a mistrial is a matter vested in the sound discretion of the trial court. Blocker v. State, 809 So.2d 640 (¶ 11) (Miss.2002). In King v. State, the supreme court held that “when an isolated prejudicial question or comment by the prosecution is promptly objected to and the objection is sustained, and particularly when the circuit judge instructs the jury to disregard the incident, there is a presumption the action on the part of the trial court cured the error.” King v. State, 580 So.2d 1182, 1189 (Miss.1991). In the case before us, the improper question was met with an immediate objection. There was no preliminary line of inquiry leading up to the question that would have given unwarranted emphasis to the question itself nor led the jury to be overly concerned about what Griffin’s answer might have been had he been allowed to answer. The trial court immediately cautioned the jury that, “[tjhere’s nothing wrong with that [failing to give a statement to investigating officers]. The man has a right to do that. Just disregard the question and my explanation because it doesn’t have anything to do with his innocence or guilt.” Also, as we have already observed, the court further instructed the jury not to speculate about potential responses to unanswered questions. There is a presumption that the jury follows the instructions given it by the trial court. Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988). We find no reason to think the jurors would have any incentive to do otherwise in this instance.

¶ 7. In summary, we find nothing remarkable or unduly prejudicial in the question itself to suggest that the prospect of a fundamentally fair trial was destroyed by the mere act of framing the question in the jury’s presence. Rather, we conclude that the rule announced in King v. State properly dictates the answer in this case, and that there was no abuse of discretion in the trial court’s refusal to grant a mistrial.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY OF CONVICTION OF DRIVING UNDER THE INFLUENCE IN A NEGLIGENT MANNER CAUSING DEATH AND SENTENCE OF TWENTY-TWO YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH ELEVEN YEARS SUSPENDED IS AFFIRMED. THE COSTS OF THIS APPEAL ARE ASSESSED TO PANOLA COUNTY.

KING AND SOUTHWICK, P. JJ„ BRIDGES, THOMAS, LEE, IRVING, MYERS, AND CHANDLER, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.


author: WALLER, Justice,

text:
    In the Matter of the ESTATE OF Byron Keith MILLER, Deceased, Kenneth Miller, Administrator: Jeanette Page, Administratrix of The Estate of Martha Jeanette Page Miller v. Ann H. Miller, Guardian of the Estate of Hunter Keith Miller.
    No. 2002-CA-00231-SCT.
    Supreme Court of Mississippi.
    March 20, 2003.

      Sheila Havard Smallwood; Glenn Louis White, Petal, for appellant.
    Leigh Kennington Berry, Columbia, for appellee.
    Before SMITH, P.J., and WALLER and COBB, JJ.
   WALLER, Justice,

for the Court:

¶ 1. This appeal involves the tragic murder/suieide of a husband and wife where the order of death cannot be determined. On October 30, 1999, Byron Keith Miller shot his wife Martha Jeanette Page Miller. Byron then shot himself shortly thereafter. Byron and Martha died from their gunshot wounds, but the order of their deaths could not be determined. They had no children together, but Byron had a six-year-old son, Hunter Keith Miller, by his ex-wife Ann Miller.

¶ 2. On December 1, 1999, Kenneth Miller, Byron’s father, was appointed administrator of Byron’s estate. Jeanette Page, Martha’s mother and administratrix of her estate, filed a petition on April 26, 2000, to determine heirship of Byron. Jeanette asserted that Martha’s estate should be recognized as an heir at law to Byron’s estate thereby entitling it to a child’s share. See Miss.Code Ann. § 91-1-7 (1994). Jeanette reasoned that since Byron killed Martha, Byron was deemed to have predeceased Martha by virtue of Mississippi’s slayer statute, Miss.Code Ann. § 91-1-25 (1994), which would allow Martha’s estate to inherit from Byron’s estate. Finding that Miss.Code Ann. § 91-1-25 was inapplicable, the learned chancellor entered judgment holding that Hunter Keith Miller was Byron’s sole heir at law.

STANDARD OF REVIEW

¶ 3. We will not disturb a chancellor’s findings unless manifestly wrong, clearly erroneous, or an erroneous legal standard was applied. In re Estate of Smith, 827 So.2d 673, 675 (Miss.2002); Miller v. Parnell, 815 So.2d 1117, 1119 (Miss.2002); Morris v. Morris, 804 So.2d 1025, 1027 (Miss.2002).

DISCUSSION

I. WHETHER THE CHANCELLOR ERRED IN FINDING THAT THE SLAYER’S STATUTE, MISS. CODE ANN. § 91-1-25, DID NOT PROVIDE THAT THE ESTATE OF MARTHA JEANETTE PAGE MILLER COULD BE RECOGNIZED AS AN HEIR OF BYRON KEITH MILLER.

¶ 4. Under the Mississippi slayer’s statute, a slayer cannot inherit from the victim and is deemed to have predeceased his victim for succession purposes:

If any person wilfully cause or procure the death of another in any way, he shall not inherit the property, real or personal, of each other; but the same shall descend as if the person so causing or procuring the death had predeceased the person whose death he perpetrated.

Miss.Code Ann. § 91-1-25. Jeanette argues that since Byron is deemed to have predeceased Martha under Miss.Code Ann. § 91-1-25, the order of death was established for purposes of distributing Byron’s estate by intestate succession. As a result, Martha’s estate would be entitled to a child’s share allowed to a widow under Miss.Code Ann. § 91-1-7 (1994).

¶ 5. We have held that one who wilfully causes the death of another is barred from participating in the victim’s estate. Genna v. Harrington, 254 So.2d 525, 527 (Miss.1971). We have not, however, addressed the question of whether a victim’s estate can participate in his slayer’s estate. Slayer’s statutes are strictly construed and narrow in purpose:

Many states have enacted “slayer statutes” intended to prevent a person who has feloniously caused the death of a decedent from inheriting or receiving any part of the estate of that decedent. These statutes intend to govern the inheritance rights of a claimant who has caused the death of a decedent by a specific statute, rather than by general equitable principles. The sole purpose of a “slayer statute” is to prevent the slayer from benefiting from the death of the victim or profiting from the wrongdoing.

26B C.J.S. Descent and Distribution § 57, at 362-63 (2001) (footnotes omitted & emphasis added).

¶ 6. For example, this strict construction was applied in Mothershed v. Schrimsher, 105 N.C.App. 209, 412 S.E.2d 123 (1992), a murder/suicide ease involving a similar slayer’s statute where a son killed his mother and each was the other’s sole heir. The North Carolina Court of Appeals held that the victim was not entitled to participate in the slayer’s estate:

The Statute’s plain language clearly bars the slayer from participating in the victim’s estate. Nowhere does the Statute authorize the victim to participate in the slayer’s estate. That may or may not occur. The Statute does not indulge in the fiction that the slayer’s date of death is other than the actual date of death, but merely establishes a presumption to exclude the slayer. Had the Statute been enacted for the dual purpose of adjudicating slayer status and for altering the intestate succession of both the slayer and victim, it would have so stated.
Our reading of the Slayer Statute does not work an injustice in the case at bar. Plaintiff argues that the coroner’s report indicates that the order of death is uncertain and survivorship will, therefore, be difficult to prove. Survivorship is often difficult to prove but the Slayer Statute was not enacted to ease this burden. The Statute is one of exclusion, not of inclusion. When applicable, it acts to exclude a slayer from participation in the victim’s estate. It does not act to include the victim in the slayer’s estate due to the slayer’s crime. This would contradict the Statute’s stated purpose.

412 S.E.2d at 125-26 (emphasis added & citations omitted). We find this resolution persuasive and adopt the same in Mississippi. Martha’s estate cannot be declared an heir to Byron’s estate by virtue of Section 91-1-25.

II. WHETHER THE CHANCELLOR ERRED IN FAILING TO APPLY THE UNIFORM SIMULTANEOUS DEATH LAW, MISS. CODE ANN. §§ 91-3-1 TO -15 (1994).

¶ 7. Jeanette next argues that the chancellor erred in failing to apply the provisions of the Uniform Simultaneous Death Law (USDL), Miss.Code Ann. §§ 91-3-1 to -15 (1994), because the death certificates of Martha and Byron both indicate a time of death of 9:45 a.m. on October 30, 1999. However, at approximately 10:00 a.m., Byron called his ex-wife Ann stating that he had shot Martha. At approximately 10:03 a.m., Ann contacted the Lamar County Sheriffs Department, deputies of which arrived at 10:12 a.m. to find both Martha and Byron dead. As will be explained, Jeanette is correct in her assertion that the USDL applies; however, her interpretation that Miss.Code Ann. § 91-3-5 deems Martha an heir to Byron’s estate is incorrect.

¶ 8. Though it was enacted in 1956, this is our first opportunity to apply and interpret the dictates of the USDL. In adopting the USDL, the Mississippi Legislature recognized the need for consistent application and stated that the statute “shall be so construed and interpreted as to effectuate its general purpose to make uniform the law in those states which enact the Uniform Simultaneous Death Law.” Miss. Code Ann. § 91-3-3. As such, we will rely on the jurisprudence of our sister states that have addressed the application of the USDL. See Elizabeth T. Tsai, Annotation, Construction, Application, and Effect of Uniform Simultaneous Death Act, 39 A.L.R.3d 1332 (1971).

¶ 9. The main provision of the USDL states, “Where the title to property or the devolution thereof depends on priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this chapter.” Miss.Code Ann. § 91-3-5. Our analysis requires first a determination of whether there is “sufficient evidence” Byron and Martha “died otherwise than simultaneously” and, if not, the proper disposition under the USDL.

Sufficiency of Evidence of Order of Death

¶ 10. Courts have consistently held that the burden of proof for “sufficient evidence” of survivorship is a preponderance of the evidence. Fiumefreddo v. Scudder, 252 Ga. 279, 313 S.E.2d 683, 686 (1984); In re Estate of Moran, 77 Ill.2d 147, 32 Ill.Dec. 349, 395 N.E.2d 579, 581 (1979); In re Estates of Perry, 40 P.3d 492, 493 (Okla.Civ.App.2001). For the USDL to apply, there must be a lack of sufficient evidence to prove that Martha predeceased Byron, or vice-versa.

¶ 11. In the instant case, there is insufficient proof to establish an order of death. While Ann testified that Byron called her at approximately 10:00 a.m. and told her he had shot Martha, there is no evidence confirming that she died before him. The fact that Byron shot Martha before he shot himself might lead one to presume that she succumbed to her injuries prior to Byron succumbed to his; however, the USDL does not allow presumptions of survivorship:

No presumptions as to survivorship as between persons killed in a common disaster arise under the act, except possibly in the case of death of a beneficiary and donor in a common disaster or in case of beneficiaries in life or accident policies. Also, there is no presumption that the deaths were simultaneous, although it has been stated that the act creates a presumption that the persons died simultaneously. The burden of proof is on the party whose claim depends on survivorship to establish the fact.

25A C.J.S. Death § 16, at 179 (2002). There being no presumption in which we can indulge as to order of death and no sufficient evidence indicating survivorship, the USDL governs the distribution of Byron’s estate.

Distribution Under the USDL

¶ 12. Jeanette’s interpretation of the Section 91-3-5 would deem Martha an heir at law of Byron’s estate and not exclude her. She cites no authority in support of such an interpretation. However, the chancellor was correct in his finding that the USDL would eliminate both Byron and Martha as heirs to each other’s estate. As quoted above, if the USDL applies, “the property of each person shall be disposed of as if he had survived.... ” Miss.Code Ann. § 91-3-5.

¶ 13. The Kansas Court of Appeals’ decision in Estate of Schweizer v. Estate of Schweizer, 7 Kan.App.2d 128, 638 P.2d 378 (1981), is illuminating as an example of the practical application of a simultaneous death statute. In Schweizer, Roland and Nancy Schweizer were killed in an accident in which it was impossible to determine the order of death. 638 P.2d at 379. The administratrix of Nancy’s estate filed a claim in Roland’s estate for a spouse’s share. Id. Affirming the trial court’s conclusion that neither Nancy nor her distrib-utees had an interest in Roland’s estate, the Court gave the following explanation of Kansas’s simultaneous death statute in action:

In this case, the estate of Mrs. Schweizer, because she is presumed to have died before Mr. Schweizer, is not entitled to a share. Likewise, Mr. Schweizer’s estate is not entitled to any share of Mrs. Schweizer’s estate, because in her probate case she is presumed to have survived him.

Id. See In re Estate of Parisi, 328 Ill.App.3d 75, 262 Ill.Dec. 297, 765 N.E.2d 123, 127-28 (2002) (stating “[e]ach individual’s property passes to that individual’s relatives and not to the other person’s relatives ... Thus, neither decedent inherits from the other.”). See also In re Spatafora’s Estate, 35 Misc.2d 128, 229 N.Y.S.2d 601 (N.Y.Surr.Ct.1962). Byron’s property was properly distributed as if he had survived Martha, meaning in effect that, for purposes of distribution under the USDL, she predeceased him, thereby leaving Hunter Keith Miller as Byron’s sole heir at law.

III. WHETHER THE CHANCELLOR ERRED IN FAILING TO DETERMINE THAT EQUITY SHOULD DECLARE MARTHA JEANETTE PAGE MILLER TO BE BYRON KEITH MILLER’S SURVIVOR THEREBY ENTITLING HER ESTATE TO AN INTESTATE SHARE UNDER HIS ESTATE.

¶ 14. Jeanette finally argues that the chancellor failed to determine that equity should declare Martha to be Byron’s survivor for succession purposes. However, she cites no authority in support of this position. That aside, courts have consistently held that under the equitable doctrine that “equity follows the law,” courts of equity cannot modify or ignore an unambiguous statutory principle in an effort to shape relief. See, e.g., Dep’t of Transp. v. Am. Ins. Co., 268 Ga. 505, 491 S.E.2d 328, 331 (1997); Kuehl v. Eckhart, 608 N.W.2d 475, 477 (Iowa 2000); Guy Dean’s Lake Shore Marina, Inc. v. Ramey, 246 Neb. 258, 518 N.W.2d 129, 133 (1994); Mello v. Woodhouse, 110 Nev. 366, 872 P.2d 337, 341 (1994); In re Estate of Voeller, 534 N.W.2d 24, 26 (N.D.1995). The slayer’s statute does not allow a victim’s estate to inherit from the slayer’s estate, and the USDL does not deem Martha an heir. This argument is without merit.

CONCLUSION

¶ 15. We hold that the slayer’s statute, Miss.Code Ann. § 91-1-25, does not authorize Martha’s estate to participate in Byron’s estate. We further hold the Uniform Simultaneous Death Law, Miss.Code Ann. §§ 91-3-1 to -15, is applicable in this case given the lack of sufficient evidence to establish the order of death. As such, the learned chancellor was correct in his conclusion that Hunter Keith Miller is the sole heir at law of Byron Keith Miller, and the chancellor’s judgment is affirmed.

¶ 16. AFFIRMED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., COBB, DIAZ, CARLSON AND GRAVES, JJ., CONCUR. EASLEY, J„ DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: DIAZ, Justice, WALLER, Justice,

text:
    RE/MAX REAL ESTATE PARTNERS, INC., Re-Max Real Estate Partners, and Judith H. Corts v. Pamela LINDSLEY.
    No. 2001-IA-00639-SCT.
    Supreme Court of Mississippi.
    March 20, 2003.

      Kristen A. Horton, Ridgeland, G. Todd Burwell, Jackson, for appellants.
    Jack W. Land, Michael K. Randolph, Joe D. Stevens, Hattiesburg, for appellee.
   DIAZ, Justice,

for the Court:

¶ 1. At issue here is whether a chancellor abused his discretion in refusing to transfer this case to circuit court. Pamela Lindsley (Lindsley) sued Re/Max Real Estate Partners, Inc., Re-Max Real Estate Partners, and Judith H. Corts (defendants) in chancery court seeking damages for breach of contract, cancellation of contract, accounting of funds, and other relief. Lindsley alleged that the defendants breached a duty to her by failing to instruct and supervise their agent in such a way as to prevent a breach of fiduciary responsibilities. Defendants filed a motion to transfer to circuit court, alleging the chancery court lacked subject matter jurisdiction. The chancellor denied that motion. This Court granted the defendants’ petition for interlocutory appeal by permission. See M.R.A.P. 5. Finding the chancellor’s retention of this matter proper, we now affirm and remand.

FACTS

¶ 2. In February 1998, Lindsley entered into a listing agreement with Re-Max Real Estate Partners (Re-Max) for sale of Lot 39 in the Fieldstone Subdivision in Lamar County, Mississippi. Debbie Wheat (Wheat) was listed as salesperson. Linds-ley had previously purchased Lot 39 for $19,000.00.

¶ 3. During the period of the sales contract for Lot 39, Lindsley and Wheat were involved in other joint real estate ventures. Lindsley alleges that she loaned Wheat $15,000 and that Wheat used the money for personal reasons. In her petition, Lindsley seeks to recover this money, inter alia, from Re-Max.

¶ 4. In May 1998, Lindsley needed money to finish building a house on the lot for sale. Lindsley alleges that Wheat represented to her that Wheat could obtain funds to complete the construction if Lindsley would transfer title to Lot 39 to Wheat. Lindsley alleges that she complied and then Wheat, without her consent, borrowed $100,000.00 against the title to the property, paid $19,000.00 to Lindsley, and, without Lindsley’s knowledge, retained $81,000.00 for her own personal use.

¶ 5. Some time later, Lindsley demanded that Wheat reconvey title of the lot to her and learned of the additional $81,000 in-cumbrance. Wheat has failed to repay the $15,000 loan, the $81,000 loan, or to pay the bank the interest on the $81,000 loan. The bank has foreclosed on the property.

¶ 6. Lindsley allegedly hired an accountant to trace the money Wheat borrowed, but the accountant could not complete his investigation because certain information was not available to him.

¶ 7. In February 2001, Lindsley filed suit against the defendants in Lamar County Chancery Court seeking damages for breach of contract, cancellation of contract, accounting of funds, and other relief. Lindsley specifically alleges that defendants breached their duty to Lindsley to “instruct and supervise Wheat in such a way as to prevent a breach of the fiduciary responsibilities” owed to Lindsley by Wheat and defendants.

¶ 8. In March 2001, defendants filed their motion to transfer to circuit court alleging the chancery court does not have subject matter jurisdiction. The chancery court denied that motion, and defendants sought permission to file an interlocutory appeal. In April 2001, the chancery court denied this request. In November 2001, this Court granted defendants’ petition for interlocutory appeal by permission.

DISCUSSION

¶ 9. Defendants cite the following issue on interlocutory appeal:

I. WHETHER THE CHANCERY COURT ERRED IN DENYING DEFENDANTS’ MOTION TO TRANSFER TO CIRCUIT COURT.

¶ 10. Whether a trial court has jurisdiction over the subject matter of a claim is a question of law and subject to de novo review by this Court. Burch v. Land Partners, L.P., 784 So.2d 925, 927 (Miss.2001).

¶ 11. Lindsley’s chancery court complaint alleges (1) that defendants breached their duty to Lindsley by failing to instruct and supervise a third party; (2) that defendants’ failure to instruct and supervise constitutes gross negligence and/or intentional conduct entitling Lindsley to punitive damages; (3) that defendants breached a listing agreement entered into by the parties; and (4) that Lindsley is entitled to an accounting. Defendants argue that, with the exception of (4), these claims are legal in nature, not equitable. Therefore, they insist that circuit court, rather than chancery, is the proper forum for this dispute.

¶ 12. The chancery court has “full jurisdiction in all the matters and cases expressly conferred upon it by the constitution.” Miss.Code Ann. § 9-5-81 (Rev. 2002). The Mississippi Constitution grants the chancery court concurrent jurisdiction with the circuit court over

suits on bonds of fiduciaries and public officers for failure to account for money or property received, or wasted or lost by neglect or failure to collect, and of suits involving inquiry into matters of mutual accounts; but if the plaintiff brings suit in the circuit court, that the court may, on application of the defendant, transfer the cause to the chancery court, if it appear that the accounts to be investigated are mutual and complicated.

Miss. Const, art. 6, § 161.

¶ 13. Chancery courts have historically had jurisdiction over suits for accounting. Tillotson v. Anders, 551 So.2d 212, 213 (Miss.1989). It is well established that, where there is in a case one issue of exclusive equity cognizance, such an issue can bring the entire case within subject matter jurisdiction of the chancery court and that court may proceed to adjudicate all legal issues as well. Thompson v. First Miss. Nat'l. Bank, 427 So.2d 973, 975 (Miss.1983). Furthermore, chancery courts have the discretion to award legal and even punitive damages as long as the chancery court’s jurisdiction has attached. Southern Leisure Homes, Inc. v. Hardin, 742 So.2d 1088, 1090 (Miss.1999).

¶ 14. However, “[t]he circuit court should be wary of attempts to camouflage as a complicated accounting what is in essence an action at law for breach of contract.” Thompson, 427 So.2d at 976, citing Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). This Court has indicated that, in cases in which some doubt exists as to whether a complaint is legal or equitable in nature, the better practice is to try the case in circuit court. Southern Leisure Homes, 742 So.2d at 1090. Southern Leisure Homes also noted that “[i]t is more appropriate for a circuit court to hear equity claims than it is for a chancery court to hear actions at law since circuit courts have general jurisdiction but chancery courts enjoy only limited jurisdiction.” Id.

¶ 15. In light of the foregoing, this Court’s duty in this case is to determine whether there is an actual need for an equitable accounting in this case. If there is, the chancery court is within its authority to retain the entire case, including the legal claims for damages.

¶ 16. There are three factors to consider when deciding whether a court of equity has jurisdiction over matters of account, (1) the need of discovery, (2) the complicated character of the accounts, and (3) the existence of a fiduciary or trust relation. Henry v. Donovan, 148 Miss. 278, 114 So. 482, 484 (1927).

¶ 17. Defendants argue that Lindsley has “disclosed no facts that would establish that the accounts relating to the financial activity of Lot 39 is in any way complicated” and that there is no evidence left “undiscovered” by interrogatories, depositions, and requests for production of documents. They also point out that Lindsley is quite capable of determining how much money she alleges she is owed, as she has enumerated her damages in her complaint against them and her complaint against Debbie Wheat individually. They argue that Lindsley has made an accounting claim for the sole purpose of attempting to have chancery court jurisdiction attach and deprive them of their right to a jury trial.

¶ 18. Lindsley, however, claims that she “has not been able to ascertain how much interest has accrued on the money that was borrowed by Wheat using Lot 39 as collateral. An accounting is sought by Lindsley to determine where the loaned money is, how it has been used or distributed, whether any of the misappropriated money is in the form of proceeds as cash or otherwise.” Lindsley also asserts that the accounting is “the basis by which the other claims pursued by Lindsley may be measured.”

¶ 19. Lindsley further argues that defendants owed her a fiduciary duty under the Real Estate License Law and Rules and Regulations, which hold that:

It shall be the duty of the responsible broker to instruct the licensees licensed under that broker in the fundamentals of real estate practice, ethics of the profession and in Mississippi Real Estate License Law and to exercise supervision of their real estate activities for which a license is required.

Code Miss. R., Real Estate Commission, Rule IV A. 1 (2002) (enacted pursuant to Miss.Code Ann. § 73-35-15). Also, according to Code Miss. R., Real Estate Commission, Rule IV E.2(g), the agent must “provide a full accounting of any money or goods coming into the agent’s possession which belong to the principal or other parties.”

¶ 20. Though it is true, as defendants assert, that the right to a jury trial shall remain inviolate, this right is not absolute. Our Constitution vests concurrent jurisdiction between chancery and circuit courts in matters regarding accounts; however, chancery is the preferred court to hear this type of matter. See Crowe v. Smith, 603 So.2d 301, 307-08 (Miss.1992) (Chancery court holds authority to hear case for an accounting). Moreover, the rules pertaining to jury trial have no effect in chancery court unless a particular statute requires a jury. Poole v. Gwin, Lewis & Punches, LLP, 792 So.2d 987 (Miss.2001) (There is no right to trial by jury in chancery court). See City of Durant v. Laws Constr. Co., 721 So.2d 598 (Miss.1998) (The right to jury trial guaranteed by Miss. Const, art. 3, § 31 applies only to those cases in which a jury trial was necessary at common law.)

¶21. In addition, the right to a jury trial is balanced against the right of the plaintiff to choose her forum. This right is limited only by rules of procedure and fair play. Presumably with the knowledge that concurrent jurisdiction between chancery and circuit court existed for this matter, Lindsley chose to bring her suit for redress in the chancery court. This was her choice and, if proper and fair, must be respected here. See generally New Orleans & N. E.R. Co. v. Gable, 252 Miss. 605, 611, 172 So.2d 421, 423 (1965) (We said in the recent case of Johnson v. Bagby, Miss., [252 Miss. 125,] 171 So.2d 327, decided February 1, 1965, that ‘[a]s yet, litigants have the right not only to choose their forum but frequently the right to choose their adversaries.’). We find that it was indeed proper for Lindsley to bring this suit in chancery court and not unduly prejudicial to require the defendants to defend this suit therein.

¶ 22. Though it is true that much information can be gained through discovery, this case may be more thoroughly investigated through an accounting in chancery court. Cases involving an accounting should be heard in chancery court rather than circuit court. Delta Constr. Co. of Jackson v. City of Jackson, 198 So.2d 592, 601 (Miss.1967). Chancellors will necessarily be more adept at handling this sort of matter, as chancery courts have historically had jurisdiction over claims for accounting. Tillotson v. Anders, 551 So.2d at 213. Moreover, Lindsley has satisfied the test set out in Henry for deciding whether a court of equity has jurisdiction over matters of account. She has sufficiently alleged the necessity of discovery, the complicated nature of the accounts, and the existence of a fiduciary or trust relation.

¶ 23. According to Henry, it must be shown that “ ‘an accounting is necessary to determine the amount due’ by the defendant.” 114 So. at 484 (quoting 1 C.J. 623). Lindsley has alleged that she has not been able to ascertain how much interest has accrued on the money that was borrowed by Wheat using Lot 39 as collateral. An accounting will help determine how the money has been used or distributed and whether defendants benefitted from Wheat’s alleged misappropriation. There is a need for an accounting to determine where the money is and what form it now assumes so that the court may decide the best way for Lindsley to recover the money, if any, that she is due.

¶ 24. Though defendants argue that Lindsley’s specificity in pleading her damages illustrates that the precise amount of her damages are known, an accounting may prove that she is entitled to more (or less) than she has pled. Chancery courts are courts of equity, and in her petition Lindsley has requested general/equitable relief. The accounting may reveal that some of the funds have been used to purchase assets for the benefit of the defendants or assets over which the defendants now exert ownership. Leaving the case in chancery court will better allow her prayer for relief to be modified according to the results of the accounting. The chancery court should retain jurisdiction because it is in the best position to award appropriate relief in the form of a constructive trust or an equitable lien, should one of those should be required.

¶ 25. Lindsley has also alleged facts and cited appropriate authority that tends to prove the existence of a fiduciary relationship between defendants and her. See Code Miss. R., Real Estate Commission, Rule IV A. 1 (2002) (enacted pursuant to Miss.Code Ann. § 73-35-15); Code Miss. R., Real Estate Commission, Rule TV E.2 (g).

¶ 26. This Court is also persuaded that the accounting claim is the pivotal claim by which the other claims will be measured and by which proper relief may be granted. Discovery of the location and form of the misappropriated funds may define the extent of the breach, if any, of the Listing Agreement, and of the defendants’ failure, if any, to instruct and supervise Wheat. As such, an accounting may be dispositive of the other issues in this case.

¶ 27. Because the chancery court has original jurisdiction of the accounting, it has pendent jurisdiction to hear Lindsley’s remaining legal claims. A claim invokes the court’s pendent jurisdiction if it “arise[s] out of the same transaction or occurrence as the principal claim or, as others put it, out of a common nucleus of operative fact.” McDonald’s Corp. v. Robinson Indus., Inc., 592 So.2d 927, 934 (Miss.1991) (quoting Hall v. Corbin, 478 So.2d 253, 255 (Miss.1985)). Because her claims for failure to instruct and supervise, negligence, and breach of contract arose out of the same transaction that necessitates the accounting, to wit, misappropriation of Lindsley’s funds by the defendants’ agent, the chancery court properly assumed pendent jurisdiction over them. Thus, the chancellor did not err in denying the defendants’ motion to transfer this case to circuit court.

CONCLUSION

¶ 28. Because this case will turn on the outcome of the accounting and because chancery courts have historically had jurisdiction over claims for accounting, we affirm the chancellor’s denial of the defendants’ motion to transfer, and we remand this case to the chancery court for further proceedings consistent with this opinion.

¶ 29. AFFIRMED AND REMANDED.

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

WALLER, Justice,

DISSENTING:

¶ 30. Because the chancellor committed error by denying the defendants’ motion to transfer to circuit court, I respectfully dissent.

¶ 31. The allegations in the complaint pertain to Wheat’s alleged breach of contract with Lindsley, ReMax’s alleged failure to supervise Wheat, and Wheat’s alleged conversion of Lindsley’s money, civil causes of action which are historically filed in circuit, not chancery, court. See Southern Leisure Homes, Inc. v. Hardin, 742 So.2d 1088, 1090 (Miss.1999) (breach of contract claims properly heard in circuit courts); Robertson v. Evans, 400 So.2d 1214, 1215 (Miss.1981) (Courts of equity should not assume jurisdiction over claims for personal injury). A mere request for accounting does not confer jurisdiction on the chancery court; indeed, any needed accounting is easily developed during discovery in circuit court.

¶ 32. Under the Mississippi Constitution, chancery courts are courts of limited jurisdiction and may hear all matters in equity, divorce and alimony, matters testamentary and of administration, minors; business, cases of idiocy, lunacy, and persons of unsound mind, and all cases under the laws in force at the time of the adoption of Constitution. Miss. Const, art. 6 § 159(a)-(f) (1890). Circuit courts, on the other hand, are courts of general jurisdiction, having ‘original jurisdiction in all matters civil and criminal in this state not vested in another court.’ Id. § 156. Lawrence County Sch. Dist. v. Brister, 823 So.2d 459, 460 (Miss.2001).

¶ 33. Because this matter should have been brought in the circuit court, I would reverse and remand for a transfer to the appropriate circuit court.

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

      . Even though the complaint does not allege that Wheat converted Lindsley’s money, Lindsley does allege that Wheat wrongfully took Lindsley's money for her own personal use. Conversion, which is an intentional tort, West v. Combs, 642 So.2d 917, 921 (Miss.1994), requires an intent to exercise dominion or control over goods which is inconsistent with the true owner’s rights. Walker v. Brown, 501 So.2d 358, 361 (Miss.1987).


author: MYERS, J., McMILLIN, C.J.,

text:
    Taras Lataj SAVANNAH, Appellant, v. STATE of Mississippi, Appellee.
    No. 2001-KA-00553-COA.
    Court of Appeals of Mississippi.
    Sept. 17, 2002.
    Rehearing Denied Nov. 26, 2002.
    Certiorari Denied March 20, 2003.

      Phillip Broadhead, Thomas M. Fortner, Robert M. Ryan, Jackson, Brenda Gale Jackson, Tallulah, LA, attorneys for appellant.
    Office of the Attorney General, by John R. Henry Jr., attorney for appellee.
    Before McMILLIN, C.J., MYERS, and CHANDLER, JJ.
   MYERS, J.,

for the court.

¶ 1. Taras Lataj Savannah was tried and convicted of the crime of manslaughter in the Circuit Court of Hinds County, First Judicial District. Savannah was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. After being convicted, Savannah filed a motion for judgment notwithstanding the verdict or, alternatively, new trial which was denied by the trial court. From the denial of that motion, Savannah appeals raising the following issues:

1.WHETHER THE TRIAL COURT ERRED WHEN IT REFUSED TO ADMIT THE VICTIM’S BLOOD ALCOHOL CONTENT INTO EVIDENCE;
2. WHETHER THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE TO ELICIT TESTIMONY FROM THE DEFENDANT ABOUT AN “OTHER CRIME” THE DEFENDANT COMMITTED; AND
3. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED SAVANNAH’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, ALTERNATIVELY, NEW TRIAL.

STATEMENT OF FACTS

¶ 2. On May 9, 2000, Taras Lataj Savannah was arrested for the wrongful death of Linda Gilmore. Savannah and Gilmore lived in the same neighborhood. The two became involved in an argument concerning whether Gilmore was going to go riding with Savannah and his friend. Gilmore became highly agitated and began calling Savannah various crude epithets. During the course of the argument, Gilmore’s six-year-old son handed his mother a cane. Gilmore continued spouting a stream of profanities at Savannah and began to swing the stick back and forth while standing approximately eight feet from Savannah. Savannah contends that Gilmore struck him with the cane at least once. Savannah pulled a pistol from his pocket and, as Gilmore taunted him, shot Gilmore. Savannah was indicted for manslaughter as a result of his actions.

¶ 3. At trial, Savannah attempted to introduce Gilmore’s blood alcohol level into evidence. The trial judge refused to allow the evidence to be admitted finding it not relevant to the case. During the course of the trial, Savannah testified on his own behalf. The State, while cross-examining Savannah, inquired whether he had a permit to carry a concealed firearm. Savannah was allowed to respond to the question and the State continued asking questions along the same line until Savannah’s attorney objected on the basis of relevancy and that the questions inquired into other wrongs committed by Savannah. The trial judge overruled Savannah’s objection but instructed the State to move on in its cross-examination. Savannah was convicted and sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. Savannah presented a motion for judgment notwithstanding the verdict or, alternatively, new trial to the trial court for consideration which was summarily denied. From the denial of that motion, Savannah perfected this appeal.

LEGAL ANALYSIS

1. WHETHER THE TRIAL COURT ERRED WHEN IT REFUSED TO ADMIT THE VICTIM’S BLOOD ALCOHOL CONTENT INTO EVIDENCE.

¶ 4. Savannah first contends that the trial court erred when it refused to admit the victim’s blood alcohol content into evidence. The trial court determines in its discretion what evidence is admissible. Muscolino v. State, 803 So.2d 1240, 1244 (¶ 16) (Miss.Ct.App.2002). This Court will reverse the trial court’s decision to not admit or admit evidence only where the trial court abused its discretion. Id. Savannah testified that Gilmore would become uncontrollable when she was drinking. A witness testifying on Savannah’s behalf stated that she observed Gilmore drinking a beer the day of the shooting. The trial judge found that the victim’s blood alcohol content was not relevant and inadmissible.

¶ 5. Evidence of a victim’s character is ordinarily irrelevant. M.R.E. 404(a). The victim’s character becomes relevant in cases where the defendant asserts an arguable claim of self-defense. McGilberry v. State, 797 So.2d 940, 941 (¶ 7) (Miss.2001). Evidence of a victim’s bad character is relevant where it is unclear which party was the initial aggressor. Id. Testimony given at trial indicated that Savannah was standing eight feet away from Gilmore when he shot her. Self-defense was not an arguable defense at that point. We find that the trial court did not abuse its discretion in finding that the victim’s blood alcohol content was inadmissible. This issue is without merit.

2. WHETHER THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE TO ELICIT TESTIMONY FROM THE DEFENDANT ABOUT AN “OTHER CRIME” THE DEFENDANT COMMITTED.

¶ 6. Savannah next contends that the trial court erred when it allowed the State to elicit testimony from Savannah concerning an alleged “other crime.” During the course of cross-examining Savannah, the State asked several questions concerning whether Savannah had a concealed carrier permit for the weapon he was carrying on the day of the shooting. Savannah objected to the line of questioning and the trial court overruled the objection but instructed the State to terminate that line of questioning.

¶ 7. The admission of evidence is governed by the trial court and its decision will not be reversed unless an abuse of discretion occurred. Muscolino, 803 So.2d at 1244(¶ 16). Savannah contends that the questions asked by the State represent evidence of an “other crime” committed by Savannah which is generally considered inadmissible character evidence pursuant to M.R.E. 404. The State argues that Savannah’s direct testimony indicated that he contended that the shooting was an accident and, therefore, that the evidence of the “other crime” was admissible to prove an absence of accident pursuant to M.R.E. 404(b). The trial court found this contention to be meritorious. We cannot say that the trial court abused its discretion in admitting this evidence as Savannah’s direct testimony clearly indicated that he was asserting that the shooting was an accident. This point of error is without merit.

¶ 8. Savannah also contends that the trial court erred on this point as it failed to conduct an on-the-record weighing of probative value versus prejudicial effect. Savannah did not object at trial to the prejudicial effect of the evidence. Failure to make an objection as to the prejudicial effect of evidence at trial is a procedural bar to raising the issue on appeal. Fair v. State, 766 So.2d 787, 792 (¶ 18) (Miss.Ct.App.2000). Savannah is procedurally barred from raising this issue on appeal for the first túne.

3. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED SAVANNAH’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, ALTERNATIVELY, NEW TRIAL.

¶ 9. Savannah first contends in this point of error that the trial court erred when it denied his motion for judgment notwithstanding the verdict. Motions for judgment notwithstanding the verdict challenge the legal sufficiency of the evidence. Brown v. State, 763 So.2d 189, 192 (¶ 6) (Miss.Ct.App.2000). The evidence is viewed in the light most favorable to the jury’s verdict and the State is given the benefit of all favorable inferences reasonably drawn from the evidence. Id. This Court will reverse only where “reasonable and fair-minded jurors could only find the accused not guilty.” Id. The evidence presented at trial showed that Savannah shot Gilmore while they were standing approximately eight feet apart. There was sufficient evidence to support the jury’s verdict.

¶ 10. Savannah next contends in this point of error that the trial court erred when it denied his motion for new trial. Motions for new trial challenge the weight of the evidence and should only be granted where the verdict is “so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice.” Brown, 763 So.2d at 192 (¶ 6). The trial court in its discretion may grant or deny motions for new trial and this Court will reverse only where the trial court abused its discretion. Id. The evidence is viewed in the light most favorable to the State. Id. The jury determines the credibility of the witnesses and what weight to give to the evidence presented. Id. The jury clearly chose to believe the testimony of the witnesses for the State. When viewed in the light most favorable to the State, the jury’s verdict was clearly not against the overwhelming weight of the evidence. The trial court did not abuse its discretion in denying Savannah’s motion for new trial. This issue is without merit.

CONCLUSION

¶ 11. The trial court did not abuse its discretion in refusing to allow the victim’s blood alcohol content into evidence. The trial court did not abuse its discretion in allowing evidence of Savannah’s “other crime” to be admitted into evidence to show that the shooting was not an accident. There was sufficient evidence presented by the State to find Savannah guilty of the crime charged. The verdict returned against Savannah was not against the overwhelming weight of the evidence. The trial court did not err in denying Savannah’s motion for judgment notwithstanding the verdict or, alternatively, new trial.

¶ 12. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, P.J., BRIDGES, LEE, IRVING, CHANDLER AND BRANTLEY, JJ„ CONCUR. MCMILLIN, C.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J. AND THOMAS, J.

McMILLIN, C.J.,

CONCURRING:

¶ 13. I concur in the result reached by the majority. However, as to the admissibility of evidence of the victim’s blood alcohol content at the time of the incident, I respectfully differ with the majority’s reasoning. The majority holds that self defense was not an issue because the distance of approximately eight feet separating Savannah from his victim removed self defense as an “arguable defense.” Wdiile this distance of separation might affect the issue of the reasonableness of Savannah’s fear of imminent injury, I do not think it necessarily rendered self defense considerations irrelevant as a matter of law. In fact, the record indicates that self defense was a central theme in the trial and the issue was submitted to the jury for consideration. It must be remembered that a defendant is entitled to have the jury instructed to consider a potential defense even when there is only the slightest evidence in the record to support it. Hester v. State, 602 So.2d 869, 872 (Miss.1992).

¶ 14. In the situation before us, I think the victim’s possible intoxication could have relevance if the proper predicate is laid (a) that the defendant was aware, at the time of the incident, of the victim’s alcoholically-impaired state and (b) that, either through prior knowledge or contemporaneous observation, the defendant had a reasonable basis to believe that the ingestion of alcohol had increased the victim’s propensity to use violent force against him.

¶ 15. Thus, in my view, it is not the fact that self defense had no relevance in this trial that renders the evidence inadmissible. It is, rather, the fact that the defense did not lay a proper predicate to show how evidence of the victim’s blood alcohol content could have reasonably heightened Savannah’s fear that he was in danger of imminent bodily harm at the hands of the victim.

SOUTHWICK, P.J., AND THOMAS, J., JOIN THIS SEPARATE WRITTEN OPINION.