author: I tMICHAEL E. KIRBY, Judge.

text:
    Lois DORDAIN v. ANTHONY SEAFOOD & LOBSTER HOUSE.
    No. 2003-CA-0900.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 5, 2003.
    James M. Taylor, Taylor, Wellons, Politz, & Duhe, APLC, New Orleans, LA, for Plaintiff/Appellee.
    Adam M. Weems, Hailey, McNamara, Hall, Larmann & Papale, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR., Judge LEON A. CANNIZZARO JR.).
   I tMICHAEL E. KIRBY, Judge.

In this workers’ compensation action, the Office of Workers’ Compensation (OWC) awarded claimant, Lois Dordain, permanent partial disability benefits, attorney’s fees and penalties. Defendants, Messina’s Pasta, Inc. d/b/a Anthony’s Seafood and Lobster House, and its insurer, the Louisiana Restaurant Association Self Insurer Fund, appeal that decision. We affirm.

On February 6, 2002, claimant was injured in a slip and fall accident while working as a kitchen manager for defendants. As a result of the fall, claimant lost one lower tooth, immediately and a second lower tooth shortly thereafter.

On March 15, 2002, claimant’s own dentist, Dr. Roscoe Wilks, examined her. Claimant was thereafter seen and treated by defendants’ dentist, Dr. Brian. LeBon, on March 28, 2002. Both dentists determined that claimant had severe periodontal disease and that she already had several teeth missing. Dr. LeBon specified that claimant’s severe periodontal disease predated February 6, 2002. Ultimately, Dr. LeBon pulled all of claimant’s remaining lower teeth and fitted her with a full lower denture. Dr. LeBon testified that due to the fact that claimant’s existing lower teeth were unsound, it was impossible to fit her with a partial denture and that a full denture was the only feasible option.

D.On January 15, 2003, defendants informed claimant by letter that a check was being forwarded to her in the amount of $5,000.25, which represented 15 weeks of benefits at the weekly compensation rate of $333.35.

Trial on the merits was held on January 28, 2003, before OWC Sean Jackson. Judgment was rendered'on March 6, 2003 in favor of claimant,- awarding her perma-' nent partial disability benefits for 60 weeks, exclusive of the 15-week tender already made by defendants. The following findings were made:

1. On February 6, 2002, the claimant was an employee of Messina’s Pasta, Inc., which was insured by the Louisiana Restaurant Association.
2. The claimant was involved in an accident on February 6, 2002, which arose out of and was within the course and scope of her employment.
3. The claimant’s average weekly wage was $500.00, and the weekly compensation rate is $333.35.
4. The claimant was injured as a result of the accident. . ■
5. Pursuant' to La. R.S. 23:1221(4)(p), the claimant is entitled to permanent partial disability benefits for 60 weeks, exclusive of the 15 weeks unconditional tender already made by defendant.
6. The defendant failed to timely pay workers’ compensation benefits pursuant to La. R.S. 23:1201D; and the defendant did not reasonably controvert the claim nor did it occur due to conditions over which defendant had no control; and

For the violation of La. R.S. 23:1201 D, the judge awarded claimant attorney’s fees in the amount of $5,000.00, which were assessed against the defendant insurer, the Louisiana Restaurant Association. The judge also assessed a penalty in the amount of 12% of the unpaid compensation or a total of not more than $50.00 per calendar day, whichever is greater, but with the $50.00 per day penalty not to exceed an aggregate of $2,000.00 against the defendant insurer, the Louisiana Restaurant Association, under La. R.S. 23:1201 F. . .

|sOn appeal, defendants first argue that the OWC judge erred in finding that claimant was disfigured for purposes of La. R.S. 23:1221(4)(p), as the testimony of both dentists established that claimant suffered from severe periodontal disease, and Dr. LeBon specified that the periodontal disease was a pre-existing condition. Specifically, defendants argue that the medical evidence presented at trial demonstrated that claimant was disfigured prior to the accident and not as a result of the accident.

In support. of their argument, defendants rely on Dr. LeBon’s deposition testimony that claimant had several teeth missing before the accident, that she had “broken down roots” in her mouth, and that she had severe periodontal disease. Defendants also point to Dr. LeBon’s statement that due to claimant’s periodontal disease, her teeth “could have fallen out from anything such as eating, brushing her teeth with some force, having someone or something hit her.” Defendants further submit that claimant’s own dentist confirmed claimant’s periodontal disease and missing teeth.

In response, claimant contends that the award of permanent partial disability benefits was supported by the evidence and is consistent with our jurisprudence. Claimant asserts that it was undisputed that she was involved in a work-related accident, and that she suffered the loss of two teeth. Moreover, claimant argues that the Louisiana courts have consistently held that the loss of teeth in a work-related accident is considered a permanent disfigurement and is compensable.

The OWC judge found that pursuant to La. R.S. 23:1221(4)(p), claimant was entitled to permanent partial disability benefits for 60 weeks, exclusive of the 15 weeks unconditional tender already made by defendants. La. R.S. 23:1221(4)(p) provides in pertinent part:

14(4) Permanent partial disability. In the following cases, compensation shall be solely for anatomical loss or use or amputation and shall be as follows:
(p) ... where the employee is seriously and permanently disfigured ... compensation not to exceed sixty-six and two-thirds percent of wages for a period not to exceed one hundred weeks may be awarded.

It is well established in our jurisprudence that the loss of a natural tooth is considered a permanent disfigurement under the workers’ compensation statute. Our Supreme Court in Jenkins v. Orleans Parish School Board, 310 So.2d 831 (La.1975), has stated:

[Cjompensation jurisprudence has consistently allowed disfigurement-impairment awards for loss of natural teeth and, in doing so, has rejected contentions of non-compensability because dentures were claimed to be a cosmetic or functional improvement. Whatever temporary artificial aid dentures might provide, the employee has permanently lost part of his body due to an accident at work. Since without dentures the employee has no teeth, the courts have held that despite dentures, the employee may be considered seriously disfigured and his function of chewing as seriously impaired.

Id. at 832.

The jurisprudence on workers’ compensation has also consistently held that a pre-existing disease or infirmity of the employee does not disqualify a claim if the work-related injury aggravated the condition. Brock v. Morton Goldberg Auction Galleries, Inc., 95-1324 (La.App. 4 Cir. 3/14/96), 671 So.2d 1008. Specifically, the courts have allowed awards for permanent partial disability in the loss of a tooth when a pre-existing dental condition was found. Hanks v. CRC Holston, Inc., 430 So.2d 1340 (La.App. 3 Cir.1983); Daigle v. Biasingame, 162 So.2d 351 (La.App. 3 Cir.1964).

In the present case, we find that the award of permanent partial disability is consistent with the above jurisprudence. The evidence presented, including the | .^opinion of Dr. LeBon, supports a finding that claimant lost two teeth in a work-related accident, and that due to pre-exist-ing periodontal disease, the extraction of claimant’s lower teeth was necessary in order to fit the lower denture and correct her condition. This assignment of error is without merit.

Defendants’ next argument is that the OWC judge erred in assessing attorney’s fees and penalties. Defendants contend that they acted reasonably and had sufficient medical information to controvert claimant’s assertion that she was disfigured as a result of the accident. In particular, defendants relied on the opinion of Dr. LeBon that claimant was not disabled from the accident and that the preexisting periodontal disease was the reason she lost her teeth in the fall.

Defendants also take issue with the judge’s finding that they received the initial medical report from Dr. LeBon on April 3, 2002, but did not tender payment for permanent partial disability until January 15, 2003. With respect to that finding, defendants submit that Dr. LeBon’s statements do not unequivocally indicate that claimant was disfigured as a result of the accident. To the contrary, defendants point out that Dr. LeBon did not find claimant to be disabled as a result of the accident and attributed claimant’s tooth loss to her periodontal disease. As such, defendants contend that the award of attorney’s fees and penalties was manifestly erroneous.

In response, claimant asserts that the actions or lack of action by defendants justify the ruling, particularly in light of the testimony of defendants’ insurance adjuster, Ms. Patricia Monjure. Ms. Mon-jure’s testimony revealed the following: 1) that claimant was not given an appointment with Dr. LeBon for almost two months after the accident; 2) that despite the recommendation from Dr. LeBon that claimant needed an entire lower denture, defendants agreed to pay only a | ^portion of the cost of the procedure; 3) that only after litigation commenced did Ms. Mon-jure agree to pay for claimant’s dentures; 4) that Ms. Monjure was aware that claimant’s claim included a claim for disfigurement, when it was filed on May 9, 2002; however, claimant was offered nothing for that claim until January 15, 2003, less than two weeks before trial; and 5) that Ms. Monjure testified that the only investigation she did in relation to the disfigurement claim was to review the workers’ compensation statute.

We find no error in the award of attorney’s fees and penalties. La. R.S. 23:1201 D provides in pertinent part:

Installment payments payable pursuant to La. R.S. 23:1221(4) shall become due on the thirtieth day after the employer or insurer receives a medical report giving. notice of the permanent partial disability on which date all such compensation then due shall be paid.

The OWC judge correctly found that defendants made the tender of fifteen weeks of compensation benefits well after the thirty days from the time the medical report was received, making it clear that claimant suffered permanent disfigurement from the loss of two teeth. We find that under the recited circumstances, defendants knew that claimant lost two teeth in a work-related accident, but failed to make a reasonable effort to investigate the claim.

It is also apparent from a review of the record that defendants did not have competent medical evidence to reasonably controvert claimant’s claim. The Supreme Court, in Brown v. Texas-LA Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, held that statutory penalties and attorney’s fees shall be awarded if the employer or insurer fails to timely pay benefits due claimant pursuant to La. R.S. 23:1201 unless: (1) the claim is reasonably controverted or (2) such nonpayment [7results from conditions over which the employer or insurer had no control. The Brown case states as follows:

In general, one can surmise from the plain meaning of the words making up the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

Id. at p. 9, 721 So.2d at 890.

As further explained in Brown, quoting Weber v. State, 93-0062, p. 8 (La.4/11/94), 635 So.2d 188, 193, the purpose of an imposition of penalties is to “nudge the employer into making timely payments when there is no reasonable basis for refusing or delaying its obligation.” Id. at p. 13, 721 So.2d at 893.

The decision of a trial judge to award penalties and attorney’s fees is a factual determination and should not be disturbed on appeal unless clearly wrong. Harris v. National Gypsum Co., 2002-0674 (La.App. 4 Cir. 10/2/02), 829 So.2d 637. In view of the record and the jurisprudence, we conclude that the defendants unreasonably refused to compensate claimant for her disfigurement. As stated above, the jurisprudence has positively established that the loss of teeth in itself is sufficient to qualify for benefits under La. R.S. 23:1221(4)(p). Jenkins, supra; Berkel v. Aetna Casualty & Surety Co., 462 So.2d 1287 (La.App. 5 Cir.1985). Accordingly, we uphold the award of attorney’s fees and penalties.

| RClaimant has not appealed or answered this appeal and is therefore not entitled to additional attorney’s fees for defending the appeal as requested in her brief. It is well established that this court is precluded from addressing any claim for modification of a judgment by a party who failed to file an appeal or answer the appeal. La. C.C.P. art. 2133; U.S. Fidelity and Guaranty Co. v. Hurley, 96-1421 (La.App. 4 Cir. 8/6/97), 698 So.2d 482; Jones v. Gillen, 564 So.2d 1274 (La.App. 5 Cir.1990).

For the reasons stated above, the judgment of the OWC is hereby affirmed.

AFFIRMED.


source: Caselaw Access Project

author: I,MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    Cedric L. RICHMOND v. USAA CASUALTY INSURANCE COMPANY, et al.
    No. 2003-CA-0708.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 5, 2003.
    Rehearing Denied Dec. 18, 2003.

      James A. Gray, III, The Gray Firm, L.L.C., and James A. Gray II, Gray & Gray, A P.L.C., New Orleans, LA, for PlaintiffAppellee.
    Valerie M. Briggs, Timothy G. Schafer, Schafer & Schafer, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR., Judge LEON A. CANNIZZARO JR.).
   I,MICHAEL E. KIRBY, Judge.

This is an appeal following a trial on the merits from the First City Court of the City of New Orleans involving an automobile accident. Plaintiff was awarded property damages for his vehicle, and the defendant appealed. For the reasons hereinafter stated we reverse.

STATEMENT OF FACTS AND PROCEDURAL HISTORY:

This is an action for property damages arising out of a rear-end collision. Plaintiff, Cedric Richmond (Richmond), filed suit against Joseph Shorter, III, claiming Shorter, III was the driver of the vehicle that rear ended him. Also sued was USAA Casualty Insurance Company (USAA) as Shorter Ill’s insurer.

The matter was tried on January 9, 2002. At the commencement of trial, the attorney for USAA entered a stipulation into the record as follows:

I’m going to go ahead and stipulate to insurance coverage. Specifically, that USAA maintains [sic] at the time of the accident that forms a basis of this matter. — it provided a policy of insurance which extended liability and property damage coverage to Joseph Shorter, III, for an amount in excess of this Honorable Court’s jurisdictional limit of $20,000.

UAt trial, Richmond testified that he was rear-ended by a car driven by a gentleman he identified in the courtroom as Gregory Shorter, not the defendant Shorter, III. He further related that his vehicle sustained extensive damages. Expert witness testimony showed that the repair cost exceeded the value of the vehicle. Richmond also produced a rental car receipt in the amount of $1,542.15, which he charged on his credit card. USAA’s attorney objected to the introduction of the rental car bill, stating that she did not receive a copy of the bill prior to trial. The trial judge overruled the objection, stating that USAA was aware of the rental car expense, and further, that Richmond paid the bill with his credit card.

Gregory Shorter testified that he was driving the vehicle that rear-ended Richmond, and that he was insured by USAA. At the completion of Gregory Shorter’s testimony, USAA’s attorney motioned the court for an involuntary dismissal based on the fact that Richmond sued the wrong person. It was admitted at trial that Joseph Shorter, III, was the owner of the vehicle and that Gregory Shorter was the driver at the time of the accident. The trial court denied the motion to dismiss, and stated the following:

The court is going to go ahead and deny the involuntary dismissal. You stipulated that there was insurance coverage for the vehicle for this accident. No name was mentioned in [sic] anybody. Do you understand? And Mr. Shorter, whoever he might be, relative or son or whatever — stated that he was involved in the accident and he was the driver of the vehicle. There is negligence. So I’m denying it on those grounds.

Judgment was rendered on January 17, 2008. Joseph Shorter, III, was dismissed from the case, and Richmond was awarded damages only from USAA in the amount of $6,542.15 plus interest and costs. Although the judgment does not break down the award between property damage and rental car expense, the written ^reasons for judgment indicate that the court allowed the rental car expense of $1,542.15. This would imply that property damage was awarded in the amount of $5,000.00, but neither party requested a new trial or clarification of judgment from the trial court. USAA filed this appeal.

ASSIGNMENTS OF ERROR:

USAA makes the following assignments of error: 1) the trial court erred in refusing to grant the motion for involuntary dismissal; 2) in the alternative, the trial court erred in awarding property damage on a vehicle that was damaged from a previous accident; and 3) in the alternative, the trial court erred in allowing the introduction of the rental car bill when it was not authenticated and not provided to counsel before trial.

Richmond asserts that the amount of property damages awarded by the trial court was too low, and that the court’s judgment was not in line with the reasons for judgment. Specifically, Richmond submits that the testimony of USAA’s witnesses placed the repair estimate on the vehicle between $7,000 and $8,000. It is therefore asserted that the judgment should be increased to $7500.00 plus the rental car bill.

CONTENTIONS OF THE PARTIES:

In the first assignment of error, USAA argues that Richmond failed to carry his burden of proof that USAA extended coverage to the driver, Gregory Shorter. As such, USAA submits that the trial court erred in rendering a judgment against it. Particularly, USAA submits that Richmond failed to prove that the driver, Gregory Shorter, was insured under the policy, failed to establish the relationship Rbetween Gregory Shorter and Joseph Shorter, III, and failed to establish whether Gregory Shorter had permission to operate the vehicle.

In the alternative, USAA argues that the trial court, in awarding property damage, failed to take into account the preexisting damage on the vehicle. USAA called two witnesses for trial who testified that the underbody structure of the vehicle was weakened as a result of improper repair from a previous accident.

Finally, USAA argues that the trial court improperly allowed the introduction of the rental car bill because the document was not previously produced through discovery requests.

In defense of this appeal, Richmond argues that USAA stipulated to insurance coverage for the accident. Specifically, at the start of the trial, counsel for USAA declared, “I am going to go ahead and stipulate to insurance coverage.” Richmond submits that the stipulation could only have been offered for two reasons: 1) to stipulate insurance coverage, or 2) to mislead the court and opposing party into thinking that insurance coverage was stipulated to.

Richmond further contends that USAA was served with a petition and put on notice that the vehicle owned by it’s insured, Joseph Shorter, III, was involved in an accident. Moreover, it is argued that USAA knew of Gregory Shorter’s involvement in the accident, as they brought him to trial to testify. Richmond suggests that, USAA attempted to sit quietly hoping to evade liability because Richmond named the wrong party, and in doing so, violated La. R.S. 22:1220(B) which states in part: “Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed by Subsection A: (1) Misrepresenting pertinent facts of insurance policy provisions |Krelating to any coverages at issue.” For this alleged violation, Richmond seeks penalties and attorney’s fees.

STANDARD OF REVIEW

The well-established standard of appellate review dictates that this court not overturn a judgment of a lower court absent an error of law or finding of fact that is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993).

DISCUSSION:

After a thorough review of the record, and for the reasons that follow, we find the Court below erred as a matter of law in finding the owner’s insurance company, USAA Casualty Insurance Company, liable for plaintiffs damages.

First, we conclude that the stipulation dictated by defense counsel at the beginning of the trial, supra, must be read in pari materia with the plaintiffs petition. Plaintiff alleged that USAA Casualty Insurance Company was the insurer of Shorter, III and that the policy was in full force and effect at the time of the accident. In their answer the defendants denied this allegation except to admit that USAA Casualty Insurance Company had in effect a policy insuring Shorter III. They specifically pleaded that the policy was the best evidence of its contents and pleaded it by reference. Plaintiff had also asserted in his petition that Shorter, III was driving the offending vehicle that struck him. In response to this specific assertion, defendants denied the allegations “because the facts alleged are not known to defendant.” In light of the pleadings,' therefore, defense counsel at trial |fimerely admitted that USAA Casualty Insurance Company had issued a policy that covered the car involved in the accident if Shorter, III was the driver.

Second, nowhere in the plaintiffs petition is it alleged that Shorter, III was the owner of the vehicle. At trial the policy of insurance, although pleaded in the answer, was not introduced by either party. Therefore, its provisions, if any, regarding permissive users of the car at issue remain unknown. At trial, Shorter, III was never called to testify. Gregory Shorter, who was not subpoenaed by any party, was present at trial, apparently at defense counsel’s request. During the plaintiffs testimony he identified Gregory Shorter, sitting in the back of the courtroom, not Joseph Shorter, III as the driver of the vehicle that struck him. This prompted plaintiffs counsel to call Gregory Shorter as a witness in his case. This Mr. Shorter admitted driving the vehicle at issue and he described the dynamics of the accident. However, he was never asked who owned the car, whether he had permission to use the car, the circumstances or purposes for which he was using the car, his age or his relationship, if any, to Joseph Shorter, III.

Interestingly, on re-direct plaintiffs counsel did ask Gregory for the name of his insurer. He responded simply, “USAA.” That answer is unhelpful as it is ambiguous, at best, since it is unknown whether the response was a reference to automobile insurance. If it was a reference to car insurance, it is likewise unknown if he was referring to the policy covering the car at issue in this case, or a policy covering another vehicle, such as one he himself may have owned. These issues were never clarified at trial.

It is axiomatic that the plaintiff must prove his civil case by a preponderance of the evidence. In other words all evidence, direct and circumstantial, taken as a whole must show that the causation or fact sought to be proved is more probable |7than not. See Rosen v. State ex rel. Dept. of Transp. and Development, 2001-0499, pp. 14-15 (La.App. 4 Cir. 1/30/02), 809 So.2d 498, 509 and cases cited therein.

Our brethren on the Second Circuit have had occasion recently to address similar issues regarding insurance coverage for non owner users of an automobile who are not specifically named in the policy:

All motor vehicle liability insurance policies are required to include an omnibus clause which extends coverage to the person named therein and to any other person using such motor vehicle with the express or implied permission of the named insured. LSA-R.S. 82:900(B).
The plaintiff has the burden of proving initial use with the express or implied permission of the insured to make coverage effective under the omnibus clause. Initial permission must be proved by a preponderance of the evidence. [Emphasis added] [citations omitted]

Wells v. Kemper Casualty Insurance Co. 35,305, p. 3-4 (La.App. 2 Cir. 12/28/01), 803 So.2d 450, 452-453.

In Barber v. Best, 394 So.2d 779 (La. App. 4 Cir.1981) this court was confronted with a situation very analogous to the one before us now. There the trial court had awarded plaintiff damages against Best and Dairyland Insurance Company as a result of an accident. The defendant was not present at trial and thus did not testify, although he was represented by counsel. Dairyland Insurance Company appealed claiming plaintiff had not proved Best was driving the vehicle; that he failed to prove Dairyland was the insurer of Best; and, that the trial court incorrectly assessed the amount of damages.

Is As to the issue of driver identity, the appellate court found sufficient evidence in the record to support the lower court’s finding that Best was driving at the time of the accident and it left the judgment undisturbed as to him. The court concluded, though, that plaintiff had not proved his case against Dairyland. Plaintiffs petition had alleged Dairyland had issued a liability policy covering the vehicle driven by Best. Defendants denied this allegation and asserted that the policy, if any, was the best evidence of its contents. The court then stated:

Examination of the record fails to disclose any reference to a policy of insurance, any offer [into' evidence] of the insurance policy or any testimony relating to coverage. Defendants’ answer calls for proof by plaintiff of policy coverage. Plaintiff simply failed to produce that proof and under the circumstances any judgment against Dairyland Insurance Company, as insurer of Best in this case, is error. We cannot conclude that Dairyland’s active participation in the defense of Best at the trial, failure to introduce any evidence denying that it was Best’s insurer and its filing of a request for notice, motion for new trial and a suspensive appeal, together with posting security for that appeal, are proof that Dairyland is the liability insurer of Best. A plaintiff suing on an insurance contract has the burden of establishing the existence of the policy sued on and its terms and provisions. [Citation omitted.] Plaintiff must plead and prove his claim falls within the general policy, whereas the insurer must prove exclusions from coverage. [Citation omitted.] Plaintiff has not met his burden in our case. [Footnote omitted.] [Emphasis added.]

Barber v. Best, supra at 780-81.

In this ease we conclude, after careful examination of the record, that plaintiff failed to prove USAA provided coverage to Gregory Shorter for this accident. The stipulation, as noted supra, only stated that USAA provided coverage for the accident if Shorter, III was proven to be the driver. Defendants’ answer denied that Shorter, III was driving the vehicle that struck plaintiff and | ¡¡admitted only that it had issued a policy to Shorter, III, thus denying it had issued a policy that was in full force and effect at the time of the accident. Plaintiff had the burden of introducing evidence to show that Gregory Shorter was a permissive user of the vehicle who was covered by the omnibus clause. He did not introduce any such evidence. As in Barber v. Best, supra, it was also incumbent on plaintiff to establish the existence of the policy and its terms and conditions to see if it covered Gregory Shorter, who was not sued, at the time of this accident. He did not. Having failed to produce this evidence, plaintiff failed to prove that it was more probable than not that USAA provided coverage for the driver involved in this accident. It was legal error for the court to deny USAA’s motion for involuntary dismissal due to the lack of evidence concerning the right or authority by which Gregory Shorter was using the car at issue. The judgment against USAA must be reversed.

In light of this conclusion, it is unnecessary to consider USAA’s other assignments of error.

CONCLUSION:

For the reasons stated herein, we reverse the judgment of the trial court.

REVERSED.


author: hDAVID S. GORBATY, Judge.

text:
    Louise RACHAL v. TENET HEALTHCARE SYSTEMS, d/b/a Memorial Medical Center a/k/a Mercy Hospital.
    No. 2003-CA-0630.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2003.
    Rehearing Denied Dec. 18, 2003.

      Ammon L. Miller, Jr., Law Office of Ammon L. Miller, Jr., New Orleans, LA, for Plaintiff/Appellee.
    Emile A. Bagneris, III, Matthew J. Un-garino, Ungarino & Eckert, L.L.C., Me-tairie, LA, for DefendanVAppellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   hDAVID S. GORBATY, Judge.

Defendant, Tenet Healthcare System Memorial Medical Center, Inc., appeals a judgment whereby the trial court dismissed the claims of plaintiffs original petition, with prejudice, but preserved plaintiffs rights to go forward with a tort claim asserted in an amended petition. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

Louise Rachal was admitted to Tenet Healthcare System Memorial Medical Center, Inc.’s Mercy Hospital campus (hereinafter Mercy Hospital) on November 25, 2000. The record does not reveal why Ms. Rachal was admitted to the hospital. According to her original petition, on December 1, 2000, Ms. Rachal repeatedly called for assistance to use the bathroom, but no one responded. As she attempted to reach the bathroom without assistance, she slipped and fell, fracturing her right kneecap and injuring her back.

Mercy Hospital filed an Exception of Prematurity arguing that because plaintiff was bringing a malpractice action, the hospital was entitled to the benefits of a medical review panel as required by the Louisiana Medical Malpractice Act. [2Because plaintiff had failed to file a claim with the Patient’s Compensation Fund as required by the Act, her claim was premature.

The trial court maintained Mercy Hospital’s exception, and allowed plaintiff 15 days to amend her petition.

In her amended petition, plaintiff alleged that the sole and proximate cause of her injuries was the negligence of one or more employees of the hospital in the following respects:

A. Creating an unsafe walkling [sic] surface by over-waxing and over-buffing
B. Installing a floor surface that is inherently slippery and dangerous
C. Failure [sic] to maintain the excessive [sic] slippery conditions of the floor

Mercy Hospital responded to the amended petition with a second Exception of Prematurity. Mercy Hospital argued that the amended petition did not cure the prematurity because plaintiff did not make any allegation that her claim had been submitted to a medical review panel.

In a memorandum in opposition to the exception, plaintiff explained that her claims sounded in tort, and, therefore, there was no requirement that a medical review panel be convened. Specifically, the basis of her claim was negligence unrelated to any professional or healthcare services rendered by Mercy Hospital.

After a hearing, the trial court rendered judgment dismissing Ms. Rachal’s claims alleged in her original petition to the extent that those claims fell within the purview of the Medical Malpractice Act. However, the trial court preserved plaintiffs right to proceed with respect to her tort claim.

UMercy Hospital filed an application for supervisory writ with this Court. The Court denied the writ finding that Mercy Hospital had an adequate remedy on appeal. In dicta, the panel commented that a negligence claim based on the defective condition of the floor was not a claim encompassed by the Medical Malpractice Act.

Simultaneously with the filing of the application for writs, Mercy Hospital filed a motion for devolutive appeal, which was granted.

DISCUSSION:

Mercy Hospital argues that plaintiffs claims are all covered by the Medical Malpractice Act, La.Rev.Stat. 40:1299.39, et seq., and, therefore, it was error for the trial court to allow plaintiff to proceed with a separate tort action. Mercy Hospital maintains that because Ms. Rachal was a patient in defendant’s facility, then all claims for negligence must fall under the purview of the Act.

The Medical Malpractice Act applies only to “malpractice,” all other tort liability on the part of a qualified health care provider is governed by general tort law. Harris v. Sternberg, 2001-2170, p. 5 (La.App. 4 Cir. 5/22/02), 819 So.2d 1184, 1137, writ denied, 2002-1617 (La.9/30/02), 825 So.2d 1198. Further, as explained in Harris, supra, to determine whether certain conduct by a qualified health care provider constitutes malpractice, the Supreme Court has delineated six factors to consider:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill,
|4(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached,
(3) whether the pertinent act or omission involved assessment of the patient’s condition,
(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,
(5) whether the injury would have occurred if the patient had not sought treatment, and,
(6) whether the tort alleged was intentional.

Harris, supra at p. 6, 819 So.2d at 1138, citing Coleman v. Deno, 01-1517, 01-1521, pp. 8-9 (La.1/25/02), 813 So.2d 303.

In Harris, the plaintiff, a man who was being treated for morbid obesity, was injured after falling from a platform scale the doctor had obtained specifically to weight his obese patients. Applying the above factors, this Court found that the plaintiffs claims fell within the ambit of the Act.

Applying the same factors to the facts of this case, we cannot say that plaintiffs injuries are covered by the Act. Assistance to the bathroom cannot be considered a part of Ms. Rachal’s treatment, nor would such assistance require the professional skills of a doctor or nurse. It is irrefutable that someone on the hospital’s staff should have responded to Ms. Rachal’s request for assistance, but that negligence is not the type of wrong envisioned by the Medical Malpractice Act.

Accordingly, we find no error in the trial court’s judgment dismissing Ms. Rachal’s claims alleged in her original petition, and preserving Ms. Rachal’s right to proceed with the general tort claim raised in her amended petition.

AFFIRMED.


text:
    Don GRIST v. Steven E. FARESE, Sr. and Anthony L. Farese.
    No. 2003-EC-01216-SCT.
    Supreme Court of Mississippi.
    Sept. 18, 2003.
    W. Terrell Stubbs, Mendenhall, attorney for appellant.
    Steven Ellis Farese, Sr., and Anthony L. Farese, pro se.
    David Lee Robinson, Ashland, attorneys for appellees.
   SMITH, Presiding Justice, for the Court.

¶ 1. This electoral candidate qualification case involves an appeal from the decision of the Hinds County Circuit Court which found that Don Grist was not qualified as a candidate for the office of District Attorney for the Third Circuit Court District. Both Grist and those opposing his candidacy appealed the circuit court’s decision. Because of the August 5, 2003, party primary election we have given this appeal expedited consideration. By order of July 22, 2003, we previously affirmed the circuit court’s judgment and noted that our opinion would issue in due course. After consideration of the matter we find that the judgment of the circuit court should be affirmed, but on a different basis than that determined by the circuit court.

FACTS

¶ 2. In 1998 Don Grist was serving the last year of a term as chancellor for the Eighteenth Chancery Court District. Three complaints were filed against Grist with the Mississippi Commission on Judicial Performance in 1996-97. These complaints were consolidated into one complaint. On September 17, 1998, Grist and the Commission resolved the consolidated complaint by entering into a Memorandum of Understanding. In the Memorandum Grist agreed to withdraw as a candidate in the pending election for chancellor for the Eighteenth Chancery Court District and not to seek state judicial or legislative office, including appointment as a special judge by the Mississippi Supreme Court, at any time in the future. Grist was allowed to serve out the remainder of the term he was serving, which ended on December 31, 1998. Grist also agreed to recuse himself from any action involving Farese, Farese, & Farese, P.A. Steven E. Farese, Sr. and Anthony L. Farese are partners in this firm.

¶ 3. On March 8, 2003, certain attorneys (“Petitioners”) from the Third Circuit Court District filed a Petition Requesting Non-Qualification of Candidate before the State Executive Committee of the Democratic Party of the State of Mississippi. The petition alleged that Don Grist had filed qualifying papers to seek election to the office of District Attorney for the Third Circuit Court District of Mississippi in the Democratic Primary Election in the 2003 Election Year. Petitioners alleged that Grist had not been engaged in the practice of law since December 31, 1998, that he was not an active member of the Mississippi Bar, and therefore did not meet the statutory qualifications for the position of District Attorney, Miss.Code Ann. § 25-31-1 (Rev.2003). The petition further stated Grist had not complied with Rule 3 of the Rules and Regulations for Mandatory Continuing Legal Education. The petition finally asked that the Executive Committee take appropriate action such that Grist’s name not appear on the ballot for the office in question.

¶ 4. On March 15, 2003, the Executive Committee denied the petition and determined that Grist was qualified to serve in the office of District Attorney if elected.

¶5. Pursuant to Miss.Code Ann. § 23-15-961 (Rev.2001), two of the petitioners, Steven E. Farese, Sr., and Anthony L. Farese, filed a Petition for Judicial Review in the Hinds County Circuit Court, First Judicial District on March 21, 2003. The petition alleged that Don Grist was not legally qualified to have his name placed on the ballot for District Attorney. The petition contained the following allegations: (1) that Grist was not a regular licensed and practicing attorney; (2) that Grist was not enrolled as an active member of the Mississippi Bar and had not complied with the Rules and Regulations for Mandatory Continuing Legal Education; and (3) that Grist was not authorized to practice law because he had been suspended from the practice of law and required an order from the Supreme Court before he could be reinstated to active status. The petition asked that Grist be disqualified as a candidate for District Attorney.

¶ 6. This Court appointed Circuit Judge William E. Chapman, III, to preside in this matter pursuant to Miss.Code Ann. § 23-15-961(5) (Rev.2001).

¶ 7. On April 22, 2003, Don Grist filed his Answer to Petition for Judicial Review and Counter Petition for Relief. Grist denied that he was not legally qualified to have his name placed on the ballot for District Attorney for the Third Circuit Court District.

¶ 8. A hearing was held on the matter on May 27, 2003. The Fareses called the following witnesses: William M. Bost, Jr., who had served as member, chairman and special prosecutor for the Commission on Judicial Performance; Luther T. Brantley, III, executive director of the Commission on Judicial Performance; Don Grist, adversely; and Teresa Robinson, membership records administrator for the Mississippi Bar. Don Grist called Perry Tedford, who testified that Grist was representing him on a social security disability case, and Grist testified in his own behalf. The circuit court made the following findings of fact as a result of the hearing:

Regarding the issue of whether Grist is a practicing attorney, [Perry] Tedford testified he had sought Grist out for advice on a social security matter, and that he talked to Grist around September 2002, and again in January 2003. Tedford further testified Grist directed him to an attorney, Gary Parvin of Grenada.
Grist does not have a file regarding Tedford, has not executed any documents claiming to be Tedford’s representative, does not have a fee arrangement with Tedford, has not written any letters to anyone on Tedford’s behalf and has not received any letters from anyone concerning Tedford. Further, neither Grist nor Tedford has executed any appointment of representative form advising the Social Security Administration that Grist was Tedford’s attorney. Tedford did, however, testify that Grist had performed a title search for him in about 1998. Grist was a Chancellor in 1998 and, of course, was prohibited from practicing law then as well as during the times Tedford testified to have talked to Grist around September 2002, and again in January 2003.
Grist’s testimony concerning another purported client was that he had helped the father of an individual by the name of Brenda Cook (“Cook”) when she was incarcerated in the Calhoun County Jail for writing bad checks. Grist further testified he spoke with the public defender, Paul Moore, of Calhoun County and with the County Attorney, Terry James. Grist admitted he was never Cook’s attorney and that he did not receive a fee for any service he provided to her father. He also admitted he does not have a file regarding Cook and that has never sent any correspondence to anyone regarding Cook either.
Grist also testified that he may possibly have another client in the near future. The above-mentioned matters relating to Tedford, Cook and the possible future client were the extent of the proof that Grist had been engaged in the practice of law. On the other hand, from March 15, 2003, until May 27, 2003, the date of trial, Grist had chosen not to and does not intend to order any business cards or any business stationary in the future. He has, however, obtained campaign handbills. Grist does not have a formal office, but claimed to be practicing out of a home office, which does not have a dedicated phone line. Grist also does not have his office designated in any public listing and does not have a legal secretary or any of the usual trappings associated with the practice of law. Finally, Grist admitted that he did not have any open client files.
It is abundantly clear that, presently, Grist is not engaged in the practice of law as defined by statute or under any rational interpretation of the phrase in a legal sense. His involvement with Ted-ford and Cook’s-father was no more than referring individuals to a practicing attorney, something done routinely by members of the public who are not members of the Bar.

¶ 9. The circuit court further found, however, that Grist was required to be a practicing attorney at the time of his election, so that consideration of this question at the time of qualification was premature.

¶ 10. The circuit court entered its judgment granting the Petition for Judicial Review, disqualifying Don Grist as a candidate for District Attorney in the Third Circuit Court District, and ordering that the State Executive Committee of the Democratic Party remove Grist’s name from the ballot. The circuit court based its decision on the finding that Grist had agreed, through a Memorandum of Understanding with the Commission on Judicial Performance, not to run for judicial office in the future. The circuit court found that the office of District Attorney was a quasi-judicial office.

¶ 11. On June 11, 2003, Grist filed his Notice of Appeal and Bill of Exceptions with the circuit court.

¶ 12. On June 12, 2003, the Fareses filed their Notice of Appeal and Bill of Exceptions. Petitioners listed the following exception: Examination now of whether Grist meets the statutory qualifications under Miss.Code Ann. § 25-31-1 with respect to if he is a practicing attorney, or for that matter if he is a licensed attorney, is premature, as he seeks only to move forward with his candidacy and has not yet been elected to the office of District Attorney in any primary or general election. As we find this issue determinative, we will not discuss the other exceptions raised.

STANDARD OF REVIEW

¶ 13. Findings of fact are reviewed under the familiar substantial evidence/manifest error rule. Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1264 (Miss.1987). “In reviewing questions of law, the Court proceeds de novo.” Callahan v. Leake County Democratic Executive Comm., 773 So.2d 938, 940 (Miss.2000). Miss.Code Ann. § 23-15-961(6) adds in part: “The Supreme Court shall have the authority to grant such relief as is appropriate under the circumstances.”

ANALYSIS

I. IS IT PREMATURE TO EXAMINE WHETHER GRIST MEETS THE STATUTORY QUALIFICATIONS FOR DISTRICT ATTORNEY UNDER MISS. CODE ANN. § 25-31-1 WITH RESPECT TO WHETHER GRIST IS A PRACTICING ATTORNEY (OR FOR THAT MATTER WHETHER GRIST IS A LICENSED ATTORNEY) WHEN GRIST HAS NOT YET BEEN ELECTED TO THE OFFICE OF DISTRICT ATTORNEY IN ANY PRIMARY OR GENERAL ELECTION?

¶ 14. The qualifications for the office of district attorney are found in Miss.Code Ann. § 25-31-1 (Rev.2003):

The district attorney shall possess all the qualifications of county officers and, in addition thereto, shall be a regular licensed and practicing attorney and shall have been duly admitted to practice before the supreme court of the State of Mississippi for a period of two years.

¶ 15. The circuit court cited In re Williamson, 838 So.2d 226 (Miss.2002), and Darby v. Mississippi Board of Bar Admissions, 185 So.2d 684 (Miss.1966), in support of its finding that Grist was not presently engaged in the practice of law. However, the circuit court also found that whether Grist was a practicing attorney at the time of election was determinative based on this Court’s decision in State ex rel. Plunkett v. Miller, 162 Miss. 149, 137 So. 737 (1931). Plunkett and Warrington were elected trustees of the Yazoo County school district. They then failed to pay taxes on some of their property, and it was alleged that they were disqualified to hold office. As trustees they were:

public officers, and under section 250 of the Constitution must be, to be eligible, qualified electors at the time of their election or selection. In Roane v. Matthews, 75 Miss. 94, 21 So. 665, this court construed section 250 of the Constitution, and held that the eligibility referred to therein, at which time the qualification must exist, was eligibility at the time of the election. In the course of the opinion, page 99 of the official report (21 So. 665), the court said: “The qualification of an elector, so far as the payment of his taxes is concerned, as prescribed by section 241, Const. 1890, depends upon the fact of the actual payment of such taxes, and not the party’s thought or supposition or belief, however honestly entertained, that the taxes have been paid; nor upon any agreement he may have with any one that one shall pay them for him. The right to vote as an elector rests upon no such shadowy grounds as these. Section 250 of the constitution provides that ‘all qualified electors, and no others, shall be eligible to office, except as otherwise provided in this constitution.’ * * * The ‘eligibility to office’ meant in section 250 is eligibility at the time of election. Unless then eligible by the payment of taxes, a candidate cannot become so by paying the taxes afterwards. This is the manifest meaning of the constitution, and any other construction leads to the most absurd results.”
The Constitution, as construed by Roane v. Matthews, supra, means that the qualification must exist at the time the officer is elected or selected; the status of his qualification to hold office is determinable as of that date.

Plunkett, 137 So. at 738.

¶ 16. Plunkett and Roane v. Matthews, 75 Miss. 94, 21 So. 665 (1897), both cite Article 12, § 250 of the Mississippi Constitution, which states:

All qualified electors and no others shall be eligible to office, except as otherwise provided in this Constitution; provided, however, that as to an office where no other qualification than that of being a qualified elector is provided by this Constitution, the legislature may, by law, fix additional requirements for such office.

The Legislature has fixed additional requirements for the office of District Attorney through § 25-31-1.

¶ 17. The Fareses cite Miss.Code Ann. § 23-15-299(7) (Rev.2001), which states:

(7) Upon receipt of the proper fee and all necessary information, the proper executive committee shall then determine whether each candidate is a qualified elector of the state, state district, county or county district which they seek to serve, and whether each candidate meets all other qualifications to hold the office he is seeking or presents absolute proof that he will, subject to no contingencies, meet all qualifications on or before the date of the general or special election at which he could be elected to office. The committee also shall determine whether any candidate has been convicted of any felony in a court of this state, or has been convicted on or after December 8, 1992, of any offense in another state which is a felony under the laws of this state, or has been convicted of any felony in a federal court on or after December 8, 1992. Excepted from the above are convictions of manslaughter and violations of the United States Internal Revenue Code or any violations of the tax laws of this state unless the offense also involved misuse or abuse of his office or money coming into his hands by virtue of his office. If the proper executive committee finds that a candidate either (a) is not a qualified elector, (b) does not meet all qualifications to hold the office he seeks and fails to provide absolute proof, subject to no contingencies, that he will meet the qualifications on or before the date of the general or special election at which he could be elected, or (c) has been convicted of a felony as described in this subsection, and not pardoned, then the name of such candidate shall not be placed upon the ballot.
Where there is but one (1) candidate for each office contested at the primary election, the proper executive committee when the time has expired within which the names of candidates shall be furnished shall declare such candidates the nominees.

(emphasis added).

¶ 18. The circuit court’s interpretation of Plunkett would negate the statutory process of qualification as provided in § 28-15-299. The Fareses cite Hinds County Election Commission v. Brinston, 671 So.2d 667 (Miss.1996), where the residency requirement in the circuit clerk’s election was considered and decided before the election. We find that the procedure provided in § 23-15-299(7) is controlling in this case. The circuit court’s finding that Grist was not a practicing attorney is supported by the testimony of the hearing, as previously set out in this opinion, as is the finding that Grist did not supply absolute proof that he would meet that qualification of the office of district attorney on or before the date of the general election. The circuit court’s judgment is affirmed on this basis.

CONCLUSION

¶ 19. The judgment of the circuit court is affirmed on the ground that Don Grist failed to meet the statutory requirements of Miss.Code Ann. § 25-31-1.

¶ 20. AFFIRMED.

PITTMAN, C.J., WALLER, COBB AND CARLSON, JJ„ CONCUR. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, EASLEY AND GRAVES, JJ., NOT PARTICIPATING.


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

text:
    Ruby CARTER, Individually, and on Behalf of the Wrongful Death Heirs and Beneficiaries, and Estate of Stacie Carter, Deceased, v. MISSISSIPPI DEPARTMENT OF CORRECTIONS and Fred Childs, in His Official Capacity as Superintendent of the Rankin County, Mississippi Correctional Facility.
    No. 2002-CA-01726-SCT.
    Supreme Court of Mississippi.
    Nov. 13, 2003.

      Carroll Rhodes, Hazlehurst, attorney for appellant.
    Michael Jeffrey Wolf, James D. Holland, Ridgeland, attorneys for appellees.
   EASLEY, Justice, for the court.

PROCEDURAL HISTORY

¶ 1. Individually and on behalf on the wrongful death heirs and the estate of Stacie Carter (Stacie), Ruby Carter (Carter) filed suit against the Mississippi Department of Corrections (MDOC) and Fred Childs (Childs), Superintendent of the Central Mississippi Correctional Center in Rankin County (CMCC), in the Circuit Court of Copiah County, Mississippi. The Circuit Court of Copiah County transferred the case to the Circuit Court of Rankin County. The trial court allowed Carter to amend her original complaint on two occasions.

¶ 2. The trial court conducted a hearing on the MDOC and Childs’ motion to dismiss or alternatively, for summary judgment. The trial court granted the motion to dismiss, or alternatively, for summary judgment and dismissed the second amended complaint with prejudice. The trial court certified the judgment as final as to the MDOC and Childs, in his official capacity as superintendent of the CMCC, pursuant to M.R.C.P. 54(b). Carter timely appealed the decision to this Court.

FACTS

¶ 3. Stacie Carter died at 6:37 p.m., on January 15, 1997, at the Rankin County Medical Center in Brandon, Mississippi. At the time of his death, Stacie was an inmate at the CMCC in Rankin County, Mississippi. Stacie had been convicted for burglary and robbery by the Lincoln County Circuit Court and sentenced on January 30, 1995, to serve two concurrent terms of five years in the custody of the MDOC. Stacie was initially moved from the Lincoln County Sheriffs Department to the MDOC facility at Parchman, Mississippi, and then he was transferred to the CMCC in Rankin County.

¶ 4. Stacie was prescribed and provided the drug, Dilantin, to control his seizures. According to inmate Valentine Lewis (Lewis), Stacie had his first seizure before supper. Lewis reported the seizures to the guard on duty, Catherine Burgess (Officer Burgess), after Stacie suffered his third seizure.

¶ 5. Lewis testified that each time he went to Officer Burgess he observed Officer Burgess “get on the phone and call,” but he did not stay to see if she got anyone. According to Lewis, a S and E Officer came with an army cot. Stacie had seven seizures by the time the S and E Officer arrived. Lewis estimated that 30 minutes passed before the S and E officer arrived. Lewis testified that about 20 minutes passed after the officer arrived before Stacie was moved. Two inmates helped Stacie to an army cot and carried him to the clinic. No one was in the clinic.

¶ 6. At approximately 5:05 p.m., Lt. Kevin Jackson (Lt-Jackson), the third watch commander, informed Capt. Patrick Marion (Capt.Marion), the institution watch commander, that Stacie needed to be transferred by ambulance from the clinic to the University of Mississippi Medical Center (UMMC) for medical treatment.

¶ 7. At approximately 5:20 p.m., the ambulance arrived with EMS operators. At approximately 5:40 p.m., the ambulance left the grounds with Stacie and Officer Kurt Wilson as escort. At approximately 5:43 p.m., Lt. Jackson was notified by Capt. Marion that medical complications arose during transport. Due to complications, Stacie was routed to the closest hospital, Rankin Medical Center. Lt. Jackson was notified that at approximately 6:37 p.m., Stacie had died at Rankin County Medical Center.

¶ 8. On appeal, Carter raises the following issues:

I. Whether the trial court erred in determining that the MDOC and Childs were immune from liability pursuant to Miss.Code Ann. § 11-46-9(l)(m).
II. Whether the trial court erred in determining that Carter had failed to establish any constitutional right violations.

DISCUSSION

I. Miss.Code Ann. § ll-46-9(l)(m)

¶ 9. Carter contends that the trial court erred in granting summary judgment to the MDOC and Childs based on their immunity from liability pursuant to Miss. Code Ann. § ll-46-9(l)(m).

¶ 10. This Court applies a de novo standard of review on appeal from a grant of summary judgment by the trial court. Jenkins v. Ohio Cas. Ins. Co., 794 So.2d 228, 232 (Miss.2001); Russell v. Orr, 700 So.2d 619, 622 (Miss.1997); Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997); Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995). Rule 56(c) of the Mississippi Rules of Civil Procedure provides that summary judgment shall be granted by a court if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact.... ” M.R.C.P. 56(c). The moving party has the burden of demonstrating that there is no genuine issue of material fact in existence, while the non-moving party should be given the benefit of every reasonable doubt. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). See also Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000). “If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied.” Williamson v. Keith, 786 So.2d 390, 393 (Miss.2001). “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Tucker, 558 So.2d at 872.

Of importance here is the language of the rule authorizing summary judgment ‘where there is no genuine issue of material fact.’ The presence of fact issues in the record does not per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense ... the existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.

Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss.1994) (citing Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985)). The evidence must be viewed in the light most favorable to the non-moving party. See Northern Elec. Co., 660 So.2d at 1281; Russell, 700 So.2d at 622; Richmond, 692 So.2d at 61; Simmons, 631 So.2d at 802; Tucker, 558 So.2d at 872.

¶ 11. The MTCA provides the exclusive civil remedy against a governmental entity or its employee for tortious acts or omission which give rise to a suit. Miss.Code Ann. § 11-46-7(1) (Rev.2002); City of Tupelo v. Martin, 747 So.2d 822, 826 (Miss.1999); Pickens v. Donaldson, 748 So.2d 684, 687 (Miss.1999).

¶ 12. Miss.Code Ann. § 11-46-9 provides immunity from liability to the state and its political subdivisions for certain specific enumerated actions or inactions by the state or its employees. Miss.Code Ann. § ll-46-9(l)(m) states:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be hable for any claim:
(m) Of an claimant who at the time the claim arises is an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution, regardless of whether such claimant is or is not an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution when the claim is filed;

¶ 13. In its opinion and order granting summary judgment, the trial court held that section HA16-9(l)(m) barred this action against the MDOC and Superintendent Childs.

¶ 14. Carter concedes that Miss. Code Ann. § ll-46-9(l)(m) bars the claims of a state inmate. However, Carter argues that “the wrongful death claims of [the] wrongful death survivors are distinct torts from the personal injury claims of inmates.” Carter also contends that the denial of the wrongful death heirs of an inmate to bring suit amounts to constitutional violations of the due process clause and the equal protection clause.

¶ 15. In support of her position, Carter cites Gentry v. Wallace, 606 So.2d 1117 (Miss.1992), out of context. In Gentry, this Court was actually addressing when the statute of limitations began to run in a wrongful death claim. This Court reasoned that:

Had Mary Gentry lived to bring a medical negligence action for the personal injuries she sustained, the clock would have begun to tick on March 1, the date she might have reasonably discovered the negligence of her physicians. However, this is a wrongful death action brought by John Billy Gentry in his capacity as his mother’s sole surviving heir. Wrongful death is a separate distinct cause of action, which can be brought only by the survivors of the deceased. Miss.Code Ann. § 11-7-13 (1972 and Supp.1991). Without and until the death of Mary Gentry, there was no cause of action under the wrongful death statute to trigger the two year statute of limitations. Further, under the statute, the limitations period does not begin to run until the heir knows or should reasonably know about the medical negligence which caused the death.

Gentry, 606 So.2d at 1119 (emphasis added).

¶-16. Contrary to Carter’s position that the wrongful death survivors have a separate tort from that of the deceased inmate, Miss.Code Ann. § 11-7-13 (Supp.2003) clearly states that wrongful death beneficiaries are entitled to maintain an action and recover damages as would the decedent if death had not ensued:

Whenever the death of any person shall be caused by any real, wrongful or negligent act or omission, or by such unsafe machinery, way or appliances as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, or whenever the death of any person shall be caused by the breach of any warranty, express or implied, of the purity or fitness of any foods, drugs, medicines, beverages, tobacco or any and all other articles or commodities intended for human consumption, as would, had the death not ensued, have entitled the person injured or made ill or damaged thereby, to maintain an action and recover damages in respect thereof, and such deceased person shall have left a widow or children or both, or husband or father or mother, or sister, or brother, the person or corporation, or both that would have been liable if death had not ensued, and the representatives of such person shall be liable for damages, notwithstanding the death, and the fact that death was instantaneous shall in no case affect the right of recovery. The action for such damages may be brought in the name of the personal representative of the deceased person for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of his wife, or by the parent for the death of a child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother from the death of a brother, or all parties interested may join in the suit

Miss.Code Ann. § 11-7-13 (emphasis added).

¶ 17. In Webb v. DeSoto County, 843 So.2d 682 (Miss.2003), this Court recently addressed a similar situation. Michael Chambers was found dead in his cell while incarcerated at the DeSoto County Detention Center. Chambers’s parents, Donna Webb and Robert Chambers, filed a wrongful death suit against DeSoto County and others. This Court upheld the trial court’s dismissal of the claim finding that Miss.Code Ann. § ll-46-9(l)(m) barred suits by inmates or their wrongful death beneficiaries. Id. at 684-85. In Webb, we stated:

Webb and Chambers attempt to circumvent Miss.Code Ann. § 11 — 46— 9(l)(m) by alleging that an action for wrongful death is an independent cause of action; therefore, placing them in a position different from the decedent. However, this Court has found that a wrongful death suit is a derivative action by the beneficiaries, and those beneficiaries, therefore, stand in the position of their decedent. See Wickline v. U.S. Fid. & Guar. Co., 530 So.2d 708, 715 (Miss.1988).
Webb and Chambers stand in the position of Michael Chambers. Therefore, Webb and Chambers are only entitled to the remedy afforded to Michael Chambers if he had survived. Since § 11-46-9(l)(m) provides him with no remedy, so it also prevents a suit by his heirs. Webb and Chambers are unable to bring a wrongful death suit on behalf of a prisoner who dies while incarcerated. For the aforementioned reasons, we find no reversible error.
Webb and Chambers argue that the waive of immunity contained in § 11-46-5 supercedes the specific types of immunity set forth in § 11-46-9. Miss.Code Ann. § 11-16-5 provides in pertinent part:
(1) Notwithstanding the immunity granted in § 11-46-3, or the provisions of any other law to the contrary, the immunity of the state and its political subdivisions from claims for money damages arising out of the torts of such governmental entities and the torts of their employees while acting within the course and scope of their employment is hereby waived from and after July 1,1993, as to the state, and from and after October 1, 1993, as to political subdivisions; provided, however, immunity of a governmental entity is any such case shall be waived only to the extent of the maximum amount of liability provided for in § 11-46-15.
This contention by Webb and Chambers is not supported by any applicable case law. Failure to cite legal authority in support of an issue is a procedural bar on appeal. McClain v. State, 625 So.2d 774, 781 (Miss.1993).

843 So.2d at 684-85.

¶ 18. This Court finds that the trial court did not err in finding that MDOC and Childs, acting within the course and scope of his employment and duties, were immune from liability by virtue of Miss. Code Ann. § ll-46-9(l)(m) since Stacie was an inmate at the time. Likewise, Stacie’s wrongful death survivors are not entitled to maintain an action against the MDOC and Childs.

II. Carter’s Constitutional Claim

¶ 19. State courts have concurrent subject matter jurisdiction with federal courts over 42 U.S.C. § 1983 claims. Martinez v. California, 444 U.S. 277, 284, 100 S.Ct. 553, 558, 62 L.Ed.2d 481 (1980). In Martinez, the Court further stated:

[A]s we recently held in Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433, “[t]he first inquiry in any § 1983 suit ... is whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws of the United States.’ ” The answer to that inquiry disposes of this case.

444 U.S. at 284.

¶ 20. Summary judgment on claims raised pursuant to § 1983 is reviewed de novo as any other summary judgment to inquire if the trial court properly granted the motion for summary judgment. See Mallery v. Taylor, 805 So.2d 613, 620 (Miss.Ct.App.2002). See also Jenkins v. Ohio Cas. Ins. Co., 794 So.2d at 232 (this Court applies a de novo standard of review on appeal from a grant of summary judgment.).

¶ 21. Carter contends that the facts establish an Eighth Amendment claim, a Due Process Clause and an Equal Protection Clause violation. Carter argues that Childs and the MDOC are liable due to their deliberate indifference to the serious medical needs of the prisoners proscribed in the Eighth Amendment.

¶ 22. In Will v. Michigan Department of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989), the United States Supreme Court stated that:

Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. Brandon v. Holt, 469 U.S. 464, 471, 105 S.Ct. 873, 877, 83 L.Ed.2d 878 (1985). As such, it is no different from a suit against the State itself. See, e.g. Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 3104-3105, 87 L.Ed.2d 114 (1985).

¶ 23. In Monell v. Department of Social Services, 436 U.S. 658, 690-91, 694, 701, 98 S.Ct. 2018, 2085-37, 2041, 56 L.Ed.2d 611 (1978), the United States Supreme Court held that local governmental bodies were subject to § 1983 liability where a violation of federal rights results from the enforcement of a governmental policy or custom. However, Monell refused to extend governmental liability based upon the doctrine of respondeat superior merely because it employed a tortfeasor. 436 U.S. at 691-92, 98 S.Ct. 2018.

¶ 24. In order to establish liability for a § 1983 violation, either on the part of the individual official or a governmental body, the plaintiffs harm must have been caused by a constitutional violation. See Collins v. City of Harker Heights, 503 U.S. 115, 120, 112 S.Ct. 1061, 1066, 117 L.Ed.2d 261 (1992). In City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1573, 89 L.Ed.2d 806 (1986), the United States Supreme Court stated that if “no constitutional injury [was inflicted] on [the] respondent, it is inconceivable that [the] petitioners could be liable to [the] respondent.”

¶ 25. In the case sub judice, the trial court found that Carter failed to meet her burden in order to establish that the MDOC acted or failed to act within the requisite deliberate indifference to medical treatment for Stacie. The trial court stated:

Plaintiff [Carter] claims defendants violated Carter’s [Stacie’s] constitutional rights through their deliberate, intentional, malicious and reckless disregard for his rights, and by having an arbitrary and capricious policy of not providing physicians, medical staff, medical treatment, medical facilities and ambulances to inmates.
After the plaintiff in Wallace argued a violation of the Remedy, Due Process and Equal Protection Clauses of the Mississippi and United States Constitutions, the Mississippi Supreme Court recognized in Wallace that in Robinson v. Stewart, 655 So.2d 866 (Miss.1995), it had held the remedy clause, Miss. Const, art. 3, § 24, does not conflict with sovereign immunity, does not require exceptions to sovereign immunity and does not grant an absolute guarantee of a trial. Wallace at ¶ 10 (citing Robinson at 868-869 citing Grimes v. Pearl River Valley Water Supply Dist., 930 F.2d 441 (5th Cir.)). The Supreme Court has further stated that:
[i]n Robinson, this Court also held sovereign immunity did not violate due process. 655 So.2d at 869. “A due process violation requires the infringement of a liberty or property right.” Id. at 869 (citing Tucker v. Hinds County, 558 So.2d 869, 873 (Miss.1990)). Because the right to sue the State has been withheld through the statutes by the Legislature, there is no property right to sue the State or other governmental entities and, therefore, no due process violation of the Mississippi Constitution. Robinson, 655 So.2d at 869. The same analysis applies to the United States Constitution because state law defines property interests, and the Mississippi Legislature has continuously denied any exceptions to overcome sovereign immunity. Grimes, 930 F.2d at 444.

Wallace at ¶ 11.

The Supreme Court continued to state that:

[i]f the statute is found to be rationally related to a legitimate purpose, “equal protection is not violated by conferring benefits on some and not all of the people of the state.” Mosby v. Moore, 716 So.2d 551, 556 (Miss.1998). The Legislature had a legitimate purpose in protecting governmental entities from claims brought by inmates, thus there is not equal protection violation in denying prison inmates certain rights granted to law-abiding citizens. The court in Grimes also held the sovereign immunity statute did not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. 930 F.2d at 444.

Wallace ¶ 12.

The United State Court of Appeals for the Fifth Circuit has declared:

(1) that the state owes the' same duty under the Due Process Clause and the Eighth Amendment to provide both pretrial detainees and convicted inmates with basic human needs, including medical care and protection from harm, during their confinement; and (2) a state jail official’s liability for episodic acts or omissions cannot attach unless the official had subjective knowledge of a substantial risk of serious harm to a pretrial detainee, but responded with deliberate indifference to that risk.

Hare v. City of Corinth, 135 F.3d 320 (5th Cir.1998) quoting Hare v. City of Corinth, 74 F.3d 633 (5th Cir.1996).

The standard the Court has applied in reviewing the alleged Eight Amendment rights violations, specifically involving denial or interference with the medical needs of Carter, is the above “deliberate indifference” standard. In all of the testimony of plaintiff and her children, the known wrongful death beneficiaries of Carter, and the testimony of MDOC personnel, the Court does not find any evidence of “deliberate indifference” on the part of defendants in respect to their treatment of Carter. Pursuant to Hare, plaintiff has the burden of showing that the MDOC acted or failed to act with “deliberate indifference” to the “basic human needs” of Carter. Plaintiff has failed to make such a showing.

¶ 26. We find that the trial court did not err by granting summary judgment as to Carter’s constitutional claims in favor of the MDOC. As the trial court determined, Carter did not establish that Stacie suffered any constitutional violation. Therefore, this Court finds that since Carter does not clearly establish a constitutional violation this issue is without merit.

CONCLUSION

¶27. For the foregoing reasons, the judgment of the Circuit Court of Rankin County is affirmed.

¶ 28. AFFIRMED.

SMITH, P.J., COBB AND CARLSON, JJ., CONCUR. PITTMAN, C.J., CONCURS IN RESULT ONLY. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, J. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

dissenting:

¶ 29. The majority’s holding today all but eliminates an inmate’s constitutional right to receive medical treatment while incarcerated. It is contrary to the very constitutional principles which have been laid down by the United States Supreme Court. For this reason, I dissent.

¶ 30. Under the Eighth Amendment of the United States Constitution, Carter, as a detained inmate, was guaranteed reasonable and adequate medical care. See Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In order for an inmate to prevail on an Eighth Amendment claim, he must prove that prison officials exercised “deliberate indifference to a serious medical condition.” Id. at 104, 97 S.Ct. at 290-91. Such “deliberate indifference” can be evidenced by a prison official's intentional denial or delay in providing medical treatment. Id. Furthermore, both the federal and state governments have a constitutional obligation to provide “minimally adequate” medical care to those whom they incarcerate. Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir.1991) (citing Estelle, 429 U.S. at 104, 97 S.Ct. at 291). See also Wellman v. Faulkner, 715 F.2d 269, 271 (7th Cir.1983); Morgan v. Sproat, 432 F.Supp. 1130, 1143 (S.D.Miss.1977). Grossly inadequate medical care will suffice to prove an Eighth Amendment violation with regards to minimal medical care provided to inmates. Harris, 941 F.2d at 1505 (citing Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir.1986)).

¶ 31. Here, Carter was not only wholly denied adequate and minimal medical care, but the prison guards and officials acted with deliberate indifference in failing to provide him medical care at all until it was too late. It is undisputed that the Central Mississippi Correctional Center did not provide medical care adequate to treat Carter’s seizure condition. In fact, the evidence reflects that no medical staff was on hand the night of him death. To make matters even worse, before an ambulance was even called, Carter had suffered seven seizures, and the guard on duty had been informed of the seizures several times. Even after being informed that Carter had suffered seven seizures, the prison officials still chose to place him on a cot then transfer him to an empty CMCC clinic where no nurse or doctor was present or on call. It was only after Carter had repeatedly seized for over an hour that an ambulance was called for his transport. Under these facts, one can clearly see that not only did the CMCC fail to provide adequate medical personnel, but the prison officials also exhibited “deliberate indifference” for the serious medical condition for which Carter suffered. On this record summary judgment and/or dismissal was not appropriate as Carter’s complaint clearly stated a claim for which relief may be granted and genuine issues of material fact exist with regard to the issues just discussed.

¶ 32. “[W]hen the State takes a person into its custody and holds him against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 206, 109 S.Ct. 998, 1005, 103 L.Ed.2d 249 (1989) (citing Youngberg v. Romeo, 457 U.S. 307, 317, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28 (1982)). Because this record does not establish that the State discharged its duty here, I would reverse the trial court’s judgment and remand for further proceedings. For these reasons, I dissent.

WALLER, J., JOINS THIS OPINION.

      . Lewis testified that supper was normally at approximately 5:00 p.m. everyday.

      . The record did not identify the meaning of the initials, S and E.


author: EASLEY, Justice, for the Court.

text:
    CRANE CO. d/b/a Crane Defense Systems v. Lynda I. KITZINGER, Individually, and as Mother and Next Friend of Robert Jayce Kitzinger, and as Executrix of The Estate of Robert L. Kitzinger, Jr., Deceased.
    No. 2001-CA-00909-SCT.
    Supreme Court of Mississippi.
    Nov. 20, 2003.

      J. Collins Wohner, Jr., William F. Goodman, Jr., Mark D. Jicka, Mark A. Dom-broff, Mark E. McKinnon, Suzanne N. Saunders, Jackson, attorneys for appellant.
    Vincent J. Castigliola, John A. Banahan, Pascagoula attorneys for appellee.
   ON MOTION FOR REHEARING

EASLEY, Justice, for the Court.

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

¶ 2. This case involves the unfortunate death of Robert L. Kitzinger (Bob). On August 25, 1998, Bob fell down a drill rig elevator hoistway to his death. In May 1999, Lynda Kitzinger (Kitzinger) filed suit for the wrongful death of her husband against Noble Drilling Corporation (the owner of the Paul Romano), Noble (US) Inc. (Bob’s employer), Friede Goldman Offshore, Inc. (formerly Ham Marine and the shipyard hired by Noble to convert the Paul Romano to a drill rig) and Crane Unidynamics/St. Louis, Inc. (Unidynam-ics, a division of Crane Co.) Prior to trial, Kitzinger settled with Noble Drilling Corporation, Noble (US) Inc. and Friede Goldman Offshore, Inc. Kitzinger, also amended the complaint prior to trial to name Crane Co.(Crane) as a defendant.

¶ 3. On January 31, 2001, a trial was conducted in Jackson County Circuit Court, Judge Dale Harkey presiding. The jury returned a verdict of 2.5 million in compensatory damages and apportioned liability as follows: 15% to Noble, 35% to Bob and 50% to Crane. The issue of punitive damages was submitted to the jury. After the jury heard evidence, a verdict was returned against Crane in the amount of 15 million dollars in punitive damages. The trial court denied Crane’s subsequent motions for JNOV and new trial. Judgment was entered against Crane for 1.25 million (50% of the 2.5 million compensatory damages) and 15 million in punitive damages. From these rulings, Crane now appeals to this Court.

FACTS

¶ 4. Bob was a former U.S. Navy Master Chief Petty Officer. In 1997, Bob retired from the Navy and pursued a job in the private sector. In November 1997, Bob started work at Noble as an electronics technician (ET).

¶5. An elevator was installed on the Paul Romano. A safety feature was installed in the elevator which prevented it from moving when the door of the elevator was open. Prior to Bob’s accident, the elevator had not worked on a few occasions because the door was either not properly closed or vibrations caused the door to open.

¶ 6. On August 25, 1998, Bob was working with Ed Seger (Seger)on the drilling rig’s ballast control system. During the course of the night the elevator became stuck and was not available for use. Robert Wallis (Wallis), an electrician, did not look at the elevator before he went to sleep at 3:30 a.m. on August 25. Bob called Seger at 8:00 a.m. from the pump room that same morning. Bob asked Seger to see if Wallis could get the elevator to operate. On August 24, Wallis had worked his 6 a.m. to 6 p.m. shift, then continued to work until 9 p.m. after which time Wallis briefly slept and was awakened at midnight to work on a crane until 3:30 a.m. on August 25. Once Seger learned of Wallis’ work schedule, Seger declined to wake Wallis for the elevator repair.

¶ 7. Eventually, Bob and Seger went to the elevator hoistway together. Bob descended the hoistway. When Bob was approximately half way down the shaft, he stated that he would need help. Shortly thereafter, Bob fell from the hoistway to the bottom of the shaft and called for help. Bob later died from the injuries that he sustained from the fall.

STATEMENT OF ISSUES

I. Whether the trial court erred by excluding Noble’s Policy and Procedures Manual, Safety Handbook, and related testimony.

II. Whether the trial court erred by excluding the testimony of O’Neil Mendoza.

III. Whether punitive damages were properly assessed.

IV. Whether, in the alternative, punitive damages should be remanded or remitted.

V. Whether the trial court erred by refusing to order disclosure of settlements or to consider a credit.

VI. Whether the Mississippi statutory appeal penalty is unconstitutional as applied to punitive damages.

LEGAL ANALYSIS

¶ 8. After careful review, we find that the first and second issues are dispositive of the case. The exclusion of the Noble Policy and Procedures Manual, the Safety Handbook and accompanying testimony was an abuse of discretion and prejudiced Crane. However, the trial court did not abuse its discretion by excluding the testimony of O’Neil Mendoza. Accordingly, we find that the case is reversed and remanded for a new trial not inconsistent with this opinion.

I. Whether the trial court erred by excluding Noble’s Policy and Procedures Manual, Safety Handbook, and related testimony.

¶ 9. This Court has held that the standard of review for either the admission or exclusion of evidence is abuse of discretion. Whitten v. Cox, 799 So.2d 1, 13 (Miss.2000); Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss.1999). The court will not reverse the admission or exclusion of evidence unless the error adversely affects a substantial right of a party. Floyd, 749 So.2d at 113. “[F]or a case to be reversed on the admission or exclusion of evidence, it must result in prejudice and harm or adversely affect a substantial right of a party.” Terrain Enter., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995).

¶ 10. Kitzinger filed a motion in limine to exclude Noble’s safety handbook and policy and procedure manual. The trial court granted Kitzinger’s motion. Thus, Crane was prohibited from admitting the handbook and manual into evidence. The trial judge based his decision on Catholic Diocese of Natchez-Jackson v. Jaquith, 224 So.2d 216 (Miss.1969) and Sumrall v. Miss. Power Co., 693 So.2d 359 (Miss 1997). In addition, the judge determined that the jury may be confused about the issue of the standard of care.

¶ 11. In Jaquith, a high school student was injured when he ran into a gymnasium wall. Jaquith, 224 So.2d at 219. The student subsequently died from the head injury following surgery. Id. The plaintiffs in the case claimed that the gym should have had padded walls and attempted to introduce a book and pamphlet which recommended the use of padded walls. Id. at 220. This Court held that “[t]he general rule in this state, as elsewhere, is that books, pamphlets and treatise are not admissible into evidence to prove facts contained therein since they are generally considered hearsay evidence.” Id. The Court held that the admission of the evidence in Jaquith was erroneous, but amounted to harmless error in that instance. Id. at 221.

¶ 12. In Sumrall, the trial court prohibited evidence of Occupational Safety and Health Act (OSHA) regulations. Sumrall, 693 So.2d at 366. This Court found that the trial court did not abuse its discretion by refusing to allow the evidence. Id. at 367. Mississippi has de-dined to give compulsory force to OSHA regulations. Id. at 366. “We are persuaded by the district court’s reasoning and hold that, in light both of it and of this Court’s clearly stated rule that governmental codes and regulations are not admissible unless given compulsory force by the state legislature, evidence of OSHA regulations is not admissible to show negligence.” Id. at 367. Consequently, the regulations were not admissible to show negligence on the part of the company. See Accu-Fab & Construction, Inc. v. Ladner, 778 So.2d 766, 771 (Miss.2001)(OSHA regulations were admitted for other purposes such as a measure of reasonable care consistent with industry standards).

¶ 13. Crane argues that the trial court’s reliance on Jaquith and Sumrall does not justify the exclusion of the handbook and manual evidence. Crane asserts that the evidence in Jaquith had no factual connection to the case, and the evidence in Sum-rail dealt with policy and statutory considerations unique to OSHA. In this case, Crane claims that the handbook and manual are directly and factually relevant to the ease. The evidence would establish the type of safety information available to Bob and allow the jury to determine the reasonableness of his actions. Crane, also, argues that it had to redact the deposition testimony of Jack Frost pertaining to safety information and training available to Bob. This testimony included information that Noble employees receive a copy of the handbook; are required to read the handbook; sign a form acknowledging that the employee has received, read and are familiar with its contents; and that a written test is administered to employees. Furthermore, redactions from Frost and other witness depositions testimony concerning fall protection also was excluded by the trial court.

¶ 14. Kitzinger argues that the manual and handbook were prepared by a third-party organization and are hearsay. In addition, she claims that there were no claims in issue between Noble and Crane. Kitzinger asserts that Bob’s duty to Crane was to act as a reasonable man and that he had no duty to Crane to follow Noble’s handbook or manual.

¶ 15. When Kitzinger first filed her wrongful death lawsuit, Noble was included among the listed defendants. Subsequent to the filing, Kitzinger made an undisclosed settlement with Noble and other party defendants. A joint motion for dismissal was filed. The trial court then granted a judgment of dismissal with prejudice. Furthermore, in Unidynamics’ answer and defense, contributory negligence on the part of Bob was asserted in both the answer and the affirmative defenses. The trial court granted Kitzinger’s motion to file an amended complaint. The amended complaint, among other things, includes the named defendant Crane Co. d/b/a/ Crane Defense Systems. Again, contributory negligence was asserted in the amended answer and affirmative defenses.

¶ 16. It is not contested that Bob received a copy of the Noble handbook. Bob was employed by Noble. The handbook was furnished to each Noble employee. The handbook referenced the manual and both addressed fall protection. The handbook and manual would show Bob’s state of mind and the extent of his exercise of reasonable care at and prior to the time of the incident. This in turn could assist the jury in its determination of the reasonableness of Bob’s actions and of the allocation of comparative fault under the facts of this case.

¶ 17. The record reflects that the handbook was proffered by Crane for identification before the trial judge. The record also reflects that the safety manual was not proffered at trial. Despite the lack of this proffer, the trial court did conduct a hearing on the motion in limine.

¶ 18. The Court of Appeals in Sims v. Collins, 762 So.2d 785, 788 (Miss.Ct.App. 2000), held that the trial court erred by not allowing the jury to hear evidence that Collins wielded a weapon at the Simes after a car collision. The appeals court determined that the jury should be able to hear the “entire series of events connected with the accident” and that a grant of a motion in limine should not “unduly restrict the opposing party’s presentation of its case.” Id. In addition, the appellate court held that even though Collins argued that the Simes failed to make a proffer of evidence, “the pleadings in this case provide an adequate record of what evidence the Simes would have offered had the court not sustained the motion in limine. Id. at 789. Based upon the Sims case, the hearing and motion and response to the motion discussed the manual, gave an adequate record of the evidence and suffices as a proffer to the trial court.

¶ 19. Accordingly, the trial court abused its discretion by excluding the handbook, manual and accompanying deposition testimony. The evidence concerns the reasonableness of Bob’s actions.

II. Whether the trial court erred by excluding the testimony of O’Neil Mendoza.

¶ 20. The standard of review for the admission or exclusion of testimony is abuse of discretion. Whitten, 799 So.2d at 13. “The admission of expert testimony is addressed to the sound discretion of the trial judge. Unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion, that decision will stand.” Roberts v. Grafe Auto Co., 701 So.2d 1093, 1098 (Miss.1997).

¶ 21. Crane next complains that the trial court erred by excluding specific testimony of O’Neil Mendoza, a project manager for the Paul Romano. This exclusion, Crane asserts, severely prejudiced Crane. Kitzinger called Mendoza to testify concerning pay scales for Noble Drilling ET employees, conversion costs for the Paul Romano and Noble’s general experience with elevators.

¶ 22. On cross-examination, Mendoza testified that Noble chose to have a non-ABS class elevator. Crane wanted Mendoza to testify to certain facts on cross-examination. Specifically, Crane attempted to question Mendoza concerning whether Noble intended to have the elevators certified under ABS rules; how Noble intended to service the hoistway in the absence of a ladder; and whether the ABS class designation applied to the elevator. After listening to testimony provided to the jury and proffered testimony, the trial court sustained Kitzinger objection. The judge determined that Mendoza was not an expert, the questions posed were not fact questions, and he was not designated as an expert. During the proffer, the trial judge asked Mendoza a number of questions to determine the extent of his knowledge. The questions were, in part, as follows:

By the Court: Mr. Mendoza, I think you said earlier that this was the first elevator system installed on a Noble rig?
By the Witness: That I know of. That is correct.
By the Court: Have you worked on other rigs with elevators?
By the Witness: No, I have not.
By the Court: Okay. Are you familiar with ABS standards for shipboard elevators?
By Mr. Castigliola: Specifically the ABS Guide to Shipboard Elevators.
By the Court: Are you familiar with the ABS Guide for Shipboard Elevators?
By the Witness: I know the guide exists, and I am not familiar with the details of the rules. I have read them in the past during a deposition last summer, and that’s the first and only time that I have read the rules.
By the Court: You read them in connection — the first time you ever read those rules was in connection with this litigation?
By the Witness: That is correct. And the reason for that is I have never been on a rig that had an elevator. I had no knowledge.
By the Court: I can understand that, and I can see why you wouldn’t bother with something you are not associated with. You have never had to — in your work history experience have you ever certified elevators as in compliance or not in compliance with ABS Guide to Shipboard Elevators?
By the Witness: No, I have not.
By the Court: Have you ever had any involvement with such a process, or procedure or protocols involved in that at all?
By the Witness: No, I have not.
By the Court: I had another one, and I can’t — With respect to your response that I heard from an earlier deposition that you read just a few minutes ago, am I to understand that when you observed this particular hoistway, this particular elevator hoistway, you assumed based upon your other experience in dealing with the — what did you call them?
By the Witness: The elevator shaft.
By the Court: The elevator shaft. You never had to deal with an elevator shaft?
By the Witness: No, I have not, Your Honor.
By the Court: But you have dealt with structural supports, the big tubes that the rig sits on. Right?
By the Witness: Yes I have.
By the Court: That supports the main platform?
By the Witness: Yes, I have.
By the Court: And your experience in servicing those structures had been to hook a line on to somebody and lower them down maybe?
By the Witness: That’s correct.
By the Court: And you just assumed without any reference to any guidelines, safety features or anything else, that that’s how y’all would service this hoistway?
By the Witness: That’s correct. * * * *
By the Court: Do you know whether the ABS Guide applies to an elevator, to this elevator?
By the Witness: I know the ABS Guide does not apply to this elevator because the elevator was not a classed system on the rig.
By the Court: And what’s the basis for that opinion that you have?
By the Witness: The basis for that opinion is based on what I saw go on in the certification process of the elevator. The ABS surveyor on the rig, which we had one full time, did not certify or issue any class paperwork on the elevator.
By the Court: So, based on your observation of that process that’s your conclusion?
By the Witness: That is my conclusion.
By the Court: I don’t see that either. I don’t see him to be an expert. I don’t see these to be fact questions to the extent that you are going to inquire into them based upon your earlier questions. I don’t see a designation as an expert. I will sustain the objection.

(emphasis added). The trial court, also, instructed the jury to disregard any questions or responses of Mendoza “with respect to the application or non-application of the ABS Guidelines for Shipboard Elevators with respect to compliance or noncompliance of the elevator system here at issue.” Mendoza was determined to not be an expert nor designated as an expert and the questions were not fact questions. Crane’s argument concerning personal knowledge is without merit. Based on the trial judge’s examination of the witness, we cannot say that the judge abused his discretion by excluding the testimony of Mendoza. Accordingly, this issue is without merit.

CONCLUSION

¶ 23. For the foregoing reasons, the trial court did not abuse his discretion by excluding the testimony of Mendoza. The trial court did abuse its discretion and erroneously excluded the handbook, manual and accompanying testimony, thus, severely prejudicing Crane. This case is reversed and remanded for a new trial not inconsistent with this opinion.

¶ 24. REVERSED AND REMANDED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND CARLSON, JJ„ CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. McRAE, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.