author: hMAX N. TOBIAS, JR., Judge. hLOVE, J.,

text:
    Herbert RAVY v. BRIDGE TERMINAL TRANSPORT.
    No. 2004-CA-0134.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2004.
    Rehearing Denied Oct. 29, 2004.

      Hollis Shepherd, New Orleans, LA, for Plaintiff/Appellant.
    Philip J. Borne, H. Carter Marshall, Christovich & Kearney, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court Composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   hMAX N. TOBIAS, JR., Judge.

The plaintiff/appellant, Herbert Ravy (“Ravy”), appeals from a summary judgment rendered by the workers’ compensation judge that found that he had violated La. R.S. 23:1208, thereby forfeiting his rights to workers’ compensation benefits. Ravy also appeals from a second summary judgment that concluded that he could not carry his burden of proving that his average weekly wage was not $196.50 per week. For the following reasons, we affirm in part and reverse in part, remanding the matter to the trial court for further proceedings.

Ravy filed a disputed claim for compensation, alleging that on 3 November 2000, he was involved in a work-related accident while working for the defendant/appellee, Bridge Terminal Transport (hereinafter “BTT”) as an independent contractor/truek driver. Ravy maintains that he suffered injuries to his head, neck, back, and legs when the vehicle he was driving collided with a pick-up truck in Texas.

On 4 November 2000, BTT began paying Ravy workers’ compensation indemnity benefits in the amount of $388.00 per week, the maximum provided by the Louisiana Workers’ Compensation Act (hereinafter “the Act”). On 21 November 2001, BTT terminated its payment of indemnity benefits.

laOn 26 March 2003, BTT filed two motions for summary judgment. The first was based on the calculation of Ravy’s average weekly wage. The second motion argued that Ravy had forfeited his compensation benefits due to false statements he allegedly made to his treating physicians about prior injuries and alleged false statements made in his deposition regarding dental and mouth injuries sustained in the 3 November 2000 accident. In opposition, Ravy argued that he has been forthright regarding the existence and extent of his injuries and that any false statements made by him were either inconsequential and/or not willful. Ravy also opposed the motion contesting the BTT’s calculation of his average weekly wage.

The workers’ compensation judge heard the motions for summary judgment on 14 May 2003, and on 20 June 2003, both motions were granted. In the first judgment, the court held that Ravy could not prove that his average weekly wage was not $196.50 per week, with a temporary total disability rate of $131.00. In the second judgment, the court found that Ravy willfully made false statements concerning pri- or injuries and injuries allegedly sustained in the accident of 3 November 2000 for the purpose of obtaining compensation benefits. Thus, the court held that Ravy violated La. R.S. 23:1208 and forfeited all rights to workers’ compensation benefits; the claim for benefits was dismissed with prejudice.

Ravy sets forth three assignments of error. First he argues that the court erroneously granted the summary judgment, finding that he made false statements concerning prior injuries and injuries sustained in the accident in question for the purpose of obtaining workers’ compensation benefits. He also contends that the trial court erroneously held that he violated La. R.S. 23:1208, thereby forfeiting his right to benefits. Finally, he argues that the trial court erred in its calculation of his average weekly wage. We conduct a de novo review of the record. Hernandez v. ESKCO, Inc., 2000-0174 (La.App. 4 Cir. 11/15/00), 773 So.2d 865 writ denied, 2000-3430 (La.2/9/01), 785 So.2d 824.

La. R.S. 23:1208 provides in part:

§ 1208. Misrepresentations concerning benefit payments; penalty
A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
# * * * *
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

The only requirements for forfeiture of benefits under Section 1208 are (1) a false statement or representation (2) that is willfully made (3) for the purpose of obtaining or defeating any benefit or payment under the workers’ compensation law. Resweber v. Haroil Construction Company, 94-2708, 94-3138 (La.9/5/95), 660 So.2d 7, 14. This broadly worded statute encompasses false statements or misrepresentations made to anyone, including the employer, physicians, or insurers, when made willfully or deliberately for the purpose of obtaining benefits. Id. at pp. 1-2, 660 So.2d at 9. Moreover, the statute contains no requirement that an employee be put on notice of the consequences of making such false statements or misrepresentations. Id. at p. 2, 660 So.2d at 9.

Statutory forfeiture is a harsh remedy and must be strictly construed. Hernandez, supra, 2000-0174 at p. 3, 773 So.2d at 867, citing Benoit v. Frank’s Casing Crew, 97-1522 (La.App. 3 Cir. 5/20/98), 713 So.2d 762, writ denied, 98-1697 (La.10/9/98), 726 So.2d 31. False statements that are inadvertent or inconsequential will not result in forfeiture. Id., citing Menard v. Mama’s Fried Chicken, 97-488 (La.App. 3 Cir. 3/6/98), 709 So.2d 303, writ denied, 98-0956 (La.6/5/98); 720 So.2d 681.

Immediately after the accident on 3 November 2000, Ravy was treated at the East Texas Memorial Center. It was documented that his chief complaint was neck pain and that he was dazed. Before receiving treatment, Ravy was asked to provide his medical history. He was instructed to list conditions such as diabetes, seizures, heart disease, hypertension, previous surgeries, and tobacco use, among others. The medical center never sought information about prior conditions such as sprains and strains. In responding to the question about prior surgeries, Ravy listed a torn rotator cuff that was surgically repaired in 1976.

Norman Ott, M.D., in New Orleans, next saw Ravy. When questioned about his past medical history, Ravy reported the left rotator cuff tear that was surgically repaired in 1976. He denied any other accidents, injuries, or prior neck or back problems. Ravy was diagnosed as having a cervical/trapezius strain with spasm, thora-columbar strain and impact, and a left hip strain and impact.

After treating with Dr. Ott for about a year, Ravy was referred to F. Allen Johnston, M.D., an orthopedic surgeon in New Orleans. Dr. Johnston also required that Ravy list his prior medical history. Ravy was instructed to list conditions such as ulcers, excessive bleeding, diabetes, high blood pressure, heart, lung, or kidney disease, cancer, circular disorders, etc. Dr. Johnston also requested Ravy’s past surgical history; Ravy listed his 1976 rotator cuff repair. Dr. Johnston also documented that Ravy remembered hitting his face on the steering wheel and restraints during the accident.

On 29 November 2000, Gordon Nutik, M.D., an orthopedic surgeon, in Metairie, examined Ravy on behalf of the insurer. At the examination, Ravy | ¡¡reported the 1976 rotator cuff tear but denied any prior history of neck pain, mid or low back pain or hip pain. Dr. Nutik diagnosed Ravy with soft tissue strains about the neck, mid back, lower back, as well as a soft tissue contusion about the right hip, and recommended that Ravy attend physical therapy.

Lastly, Roger Smith, M.D., examined Ravy at the request of the insurer. Dr. Smith recommended that Ravy undergo surgery and discontinue physical therapy. Surgery took place on 16 May 2001.

On 24 May 2002, counsel for BTT deposed Ravy. At that time, he denied any prior accidents or injuries. He also denied prior injuries in his discovery responses.

In the course of discovery, medical records were obtained from Pendleton Memorial Methodist Hospital in New Orleans, and George Murphy, M.D., also of New Orleans. These records indicate that while driving for another company, Ravy was involved in a motor vehicle accident on 15 January 1996. While he reported some slight discomfort in his neck, his major complaint was pain in his right shoulder and arm. He was diagnosed with a cervical strain and shoulder strain. As of his visit to Dr. Murphy in March 1996, the sole diagnosis was a shoulder strain. He was allowed to return to work on 27 March 1996.

In addition to Ravy’s alleged failure to disclose the 1996 accident, BTT also contends that Ravy gave false testimony about the injuries he received in the 3 November 2000 accident. The medical records obtained from East Texas Medical Center indicate that Ravy complained only of neck and leg pain on the date of the accident and that there was no evidence of trauma to Ravy’s head and/or dental injury. BTT points out, however, that at his deposition in May 2002, Ravy testified that he suffered mouth and dental damage as a result of the accident.

| fiBased on Ravy’s medical records, his deposition testimony, and discovery responses, BTT filed its Section 1208 motion for summary judgment, arguing that Ravy had forfeited his right to compensation benefits. The trial court agreed.

On appeal, Ravy contends that the summary judgment should not have been granted and that the overwhelming weight of the evidence clearly establishes that Ravy did not violate the spirit or rule of La. R.S. 23:1208. Based on our examination of the record, we find genuine issues of material fact that preclude summary judgment.

A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue of material fact and the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966; Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981). Summary procedure should be used cautiously and sparingly; any reasonable doubt should be resolved against mover in favor of full trial on the merits. Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Co., 427 So.2d 1152 (La.1983); Sanders v. Hercules Sheet Met al, Inc., 385 So.2d 772 (La.1980). Moreover, it is rarely appropriate for a determination based on subjective facts such as intent, motive, malice, knowledge or good faith. Johnson v. Hitchens, 518 So.2d 1154 (La.App. 4 Cir.1987).

The East Texas Medical Center’s questionnaire asked for conditions such as diabetes, seizures, heart disease, hypertension, previous surgeries, and tobacco use for the medical history. Ravy listed his 1976 rotator cuff surgery. As far as these medical records are concerned, there is no question concerning prior accidents.

] 7With regard to Dr. Johnston, Ravy readily admitted that Dr. Murphy had treated him in the past. Ravy contends that he answered all questions posed to him to the best of his ability. In fact, as reported by Dr. Johnston, Ravy denied “any other accidents or injuries, neck, back or medical condition.” This statement is ambiguous and capable of multiple interpretations. For example, Dr. Johnston could have been asking whether Ravy had ever been involved in any type of prior accident, or one that resulted in injuries to his neck or back. In the 1996 accident, Ravy complained primarily of shoulder pain, although he was also diagnosed with a mild cervical strain, which was resolved quickly and without treatment. In fact, Ravy was specifically quoted as saying “my shoulder hurts.”

The medical records from the instant accident reveal that Ravy has distinguished his present back and neck complaints from the shoulder complaints that he had in 1996. In addition, the record in its entirety evidences material issues of fact as to whether Ravy “willfully” omitted his 1996 injury for the purpose of obtaining compensation benefits.

The penalty of forfeiture will be imposed only when the employer is prejudiced, i.e., when the false statement directly relates to the medical condition on which the claim for benefits is based or affects the employer’s ability to receive reimbursement from the second injury fund. Resweber v. Haroil Construction Co., 94-2708 (La.9/5/95), 660 So.2d 7. For example, in Hernandez, supra, the claimant, who was seeking benefits for head, neck, and back injuries, had prior head, neck, and back pain as the result of two earlier accidents, which he specifically denied in his deposition. There, this court held that the ample evidence submitted by the employer was sufficient to find that Hernandez’s 1 smisrepresentations were willful and that summary judgment in favor of the employer was proper. Hernandez, 2000-0174 at p. 8, 773 So.2d at 870.

The word “willful” has been defined as “proceeding from a conscious motion of the will; voluntary; knowingly; deliberate; intending the result which actually comes to pass; designed; intentional; purposeful; not accidental or involuntary.” Grant v. Natchitoches Manor Nursing Home, 96-1546, p. 4 (La.App. 3rd Cir.5/14/97), 696 So.2d 73, 76, writ denied, 97-1582 (La.10/17/97), 701 So.2d 1330, citing Black’s Laiu Dictionary 1599 (6th ed.1990).

The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. A false statement that is inconsequential to the present claim may indicate that the statement was not willfully made for the purpose of obtaining benefits. Clearly, an inadvertent and inconsequential false statement would not result in forfeiture of benefits. Resweber, 95-2158 at p. 16, 660 So.2d at 16.

Credibility issues have no place in summary judgment procedure. Lexington House v. Gleason, 98-1818, p. 6 (La.App. 3 Cir. 3/31/99), 733 So.2d 123, 126, writ de nied, 99-1290 (La.6/25/99), 746 So.2d 603. “It is not the court’s function on a motion for summary judgment to determine or even inquire into the merits of the issues presented. While deposition testimony may be used to support or oppose a motion for summary judgment, it may not be weighed.” Id. [citation omitted]. Had this case come before us in the posture of an appeal from a judgment on the merits, we might be compelled to affirm. However, because the ultimate conclusion that Ravy willfully made false statements for the purpose of obtaining benefits required the weighing of evidence and the making of credibility | flcaIIs in the context of a motion for summary judgment, we find that the trial court erred in granting summary judgment.

The trial court also concluded that Ravy willfully made false statements concerning dental injuries allegedly sustained in the 3 November 2000 accident. On appeal, Ravy argues that he reported from the beginning that he struck his face on the steering column. In opposition to the motion for summary judgment, Ravy introduced dental records evidencing a thorough dental exam by H.R. Guerra, D.D.S., which states that there was damage to one of Ravjfs teeth, which could be attributable to his accident. The dentist was careful to distinguish between pre-existing conditions and the treatment needed as a result of the accident. Consequently, we find that summary judgment on this issue should not have been granted.

The final assignment of error concerns the calculation of Rav/s average weekly wages. Ravy contends that the lower court’s calculation was based solely on Rav/s yearly income tax returns and that a material issue of fact exists as to the number of days he worked in the twenty-six weeks immediately preceding the accident.

La. R.S. 23:1021(10)(d) provides in pertinent part:

10) “Wages” means average weekly wage at the time of the accident.
The average weekly wage shall be determined as follows:
* * *
(d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week[.]

hflAfter reviewing the evidence in support of the motion for summary judgment, we find no genuine issues of material fact and that the summary judgment was proper. BTT introduced into evidence computerized driver settlement statements demonstrating the actual days worked by Ravy for the first forty-four weeks in 2000 until the date of the accident. In addition, Ravy’s tax returns were used to determine the amount of expenses he had in connection with his job as an independent truck driver. As stated by the court in Edwards v. Delta Timber Co., 94-725, p. 3 (La.App. 3 Cir. 12/7/94), 647 So.2d 548, 550:

While not required by the express language of LSA-R.S. 23:1021(10)(d), an employee’s expenses are deducted from his gross earnings if the employee supplies his own equipment or helpers. See Nesmith v. Reich Bros., 203 La. 928, 14 So.2d 767 (1943); France v. A & M Wood Co., 566 So.2d 106 (La.App. 2d Cir.1990); Herrin v. Georgia Cas. & Sur. Co., 414 So.2d 1323 (La.App. 2d Cir.1982); Burgess v. Southern Cas. Ins. Co., 203 So.2d 434 (La.App. 3d Cir.1967); Thompson v. Cloud, 166 So.2d 28 (La.App. 3d Cir.1964); Webb v. Crosby Lumber and Mfg. Co., 105 So.2d 290 (La.App. 1st Cir.1958); Carter v. Consolidated Underwriters, 62 So.2d 682 (La.App. 2d Cir.1953). The reason for subtracting an employee’s expenses from his gross earnings is to exclude any return on capital in the determination of worker’s [sic] compensation benefits. See Malone & Johnson, U Louisiana Civil Law Treatise: Workers’ Compensation § 327 (3d ed.1994). Simply demonstrated, if it costs an employee $5 to make $10 then that employee only earns $5. Because the employee only earns $5, it would be unfair to use the $10 figure to calculate his worker’s [sic] compensation benefits.

We find that the trial court correctly determined Ravy’s average weekly wage and, therefore, this assignment of error is without merit.

InBased on the foregoing, we reverse the summary judgment granted on the issue of whether Ravy violated La. R.S. 23:1208 and affirm the summary judgment on the issue of Ravy’s average weekly wage. We remand the matter to the trial court for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

hLOVE, J.,

Concurs in part and dissents in part.

I concur with the majority’s opinion in finding that genuine issues of material fact exists which preclude summary judgment in so far as finding that relator made false statements concerning prior injuries and realtor violated La. R.S. 23:1208. However, I respectfully disagree with the majority as it pertains to the calculation of average weekly wages. The trial court erred in utilizing the 2002 yearly income tax returns to determine relator’s average weekly wages, as the tax returns were not a clear indicator of days worked nor expenses incurred in connection with his job as an independent truck driver. Therefore, I find that genuine issues of material fact exist as to the number of days relator worked in the twenty-six weeks immediately preceding the accident.


source: Caselaw Access Project

author: h DAVID S. GORBATY, Judge.

license: Public Domain

text:
    Ursula BULOT, et al v. INTRACOASTAL TUBULAR SERVICES, INC., et al. Frances Craft, Lee Craft, Jr., Kenneth Craft, Catherine Andersan, Delores Lewis, Lee Roy Craft, Jerome Craft and Laquita Spulock, Individually and on Behalf of Lee Craft, Jr. v. Intracoastal Tubular Services, Inc., et al. Kenneth and Fanette Craft v. Intracoastal Tubular Services, Inc., et al.
    Nos. 2004-CA-0398, 2004-CA-0399, 2004-CA-0400.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2004.
    Rehearing Denied Nov. 3, 2004.

      Stuart H. Smith, Michael G. Stag, Smith Stag, L.L.C., and Bernard L. Charbonnet, Jr., Desire’ Charbonnet, Charbonnet and Charbonnet, and Harry T. Lemmon, New Orleans, LA, for Plaintiffs/Appellants.
    Louis C. Woolf, Howard Jarvis, Woolf, McClane, Bright, Allen & Carpenter, PLLC, Knoxville, TN, and Glen M. Pilie’, Robert N. Markle, Martin A. Stern, Adams and Reese LLP, New Orleans, LA, for Exxon Mobil Corporation.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS, SR., Judge DAVID S. GORBATY).
   h DAVID S. GORBATY, Judge.

Plaintiffs/appellants appeal a trial court judgment sustaining exceptions of res ju-dicata and prescription filed on behalf of ExxonMobil Corporation, defendant/appel-lee. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

Plaintiff Kenneth Craft and his father, Lee Dell Craft, Sr., worked at Intracoastal Tubular Services, Inc. (“ITCO”), for many years. According to plaintiffs’ brief, while working for ITCO they were exposed to radioactive materials while cleaning oilfield pipe delivered to ITCO by the various defendant oil and oilfield-related companies.

A. The Kenneth Craft Suit:

Kenneth Craft and his wife, Fanette, filed suit in 1998 against ExxonMobil, claiming that he was exposed to radioactive materials delivered to his employer by ExxonMobil, and that he had recently learned that this exposure was the cause of the lung injury from which he was suffering. Mr. Craft’s wife, Fanette, asserted a | ¡.claim for loss of consortium. Mr. Craft admits that he filed a previous lawsuit against ExxonMobil, but suggests that the cause of action alleged in the first suit was based on his exposure to chemicals, whereas the second suit was premised on an exposure to radioactive materials.

In response to the Kenneth Craft suit, ExxonMobil filed numerous exceptions, including an exception of res judicata. The exception was based on a receipt and release signed by Mr. Craft in 1995, wherein he accepted $5,000 in exchange for releasing ExxonMobil.

The trial court sustained ExxonMobil’s exception of res judicata, dismissing all claims of Kenneth Craft against ExxonMo-bil, with prejudice.

Fanette Craft asserted a claim for loss of consortium, which she alleged arose in 1984 when her husband was diagnosed with an inflammatory lesion of the lung, which was surgically removed. In response, ExxonMobil filed an exception of prescription arguing that Fanette’s claim had prescribed on the face of the petition.

The trial court sustained the exception of prescription, dismissing all of Fanette’s claims against ExxonMobil, with prejudice.

B. The Frances Craft Suit:

In 1997, Frances Craft, the widow of Lee Dell Craft, Sr., filed suit in Civil District Court on behalf of herself and her seven children against ExxonMobil. The petition alleged that Lee Craft had developed lung cancer from his exposure to radiation while cleaning oilfield pipes that ExxonMobil had sent to Lee’s employer |pfor cleaning. Lee Craft died in 1986 from lung cancer. It was alleged that the family had only recently learned of their husband/father’s exposure to radioactive materials while working for ITCO, and that said exposure was the cause of his death.

ExxonMobil responded to the petition by filing an exception of res judicata, based on a lawsuit previously filed in the 24th Judicial District Court by the same parties, which was dismissed on summary judgment in 1989.

The trial court sustained ExxonMobil’s exception of res judicata, dismissing all claims on behalf of Frances Craft and her children against ExxonMobil, with prejudice.

This appeal followed.

DISCUSSION:

In their first assignment of error, appellants argue that the trial court erred in sustaining the exceptions of res judicata because it retroactively applied the 1990 amendment to La. R.S. 13:4231. They claim that the trial court should have applied the pre-1990 law because the previously filed lawsuits, upon which ExxonMo-bil relies as the basis for its exception, were filed in 1985 and 1987. Therefore, the law in effect at the time the first suits were filed is applicable. We agree.

14Former La. Civ.Code art. 2286 set out the elements essential to the exceptions of res judicata. The article was redesignat-ed as La. R.S. 13:4231 by Section 7 of Act 331 of 1984, and amended by Act 521 of 1990. Section 5 of Act 521 provides that “[t]he preclusive affect and authority of a judgment rendered in an action filed before [January 1, 1991] shall be determined by the law in effect prior to January 1, 1991.” Consequently, former La. Civ. Code art. 2286 governs this case. It provides as follows:

The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.

Appellants apparently concede that the demand is between the same parties, and that the thing demanded is the same; however, they argue that because they are asserting a different cause of action than was asserted in the first lawsuit, res judi-cata does not apply. We will thus focus on the “cause/grounds” element.

In support of their position, appellants cite Mitchell v. Bertolla, 340 So.2d 287 (La.1976). In Mitchell, the Supreme Court interpreted the term “cause” to mean “grounds,” so that a second suit was not precluded by res judicata if the “grounds” for recovery stated in the second action were different than those stated in the first.

Applying this principle to the instant lawsuits, appellants argue that they have asserted different “grounds” in each lawsuit. In Kenneth Craft’s first suit, he alleged that Exxon was the manufacturer of certain chemicals, which produced and emitted harmful and irritating fumes and vapors. Kenneth Craft, as an employee of [filTCO, was caused to inhale the chemical vapors and fumes. He alleged that he recently learned through medical examination that he had suffered from a chemical irritation of the lining of his bronchial system, which caused the growth of lesions and fungus. Kenneth Craft alleged that ExxonMobil was at fault both for negligence and strict liability.

In his second suit, Kenneth Craft alleges that he recently learned that a lung condition which was diagnosed in 1984 was caused by exposure to radioactive materials emitted from ExxonMobil’s pipe. He averred that ExxonMobil was liable for his injuries for negligence and strict liability.

Kenneth Craft executed a receipt and release on April 11, 1988, whereby he forever discharged ExxonMobil from “any and all liability, claims, liens, remedies, debts, damages, injuries, or causes of action of whatever nature or kind which he now has or which, he, his heirs, assigns, or legal representatives may hereafter acquire ... whether said claim be based on the claim of negligence, ... or in tort, ... on account of or in any way connected with the injuries sustained as aforesaid, whether now known or hereinafter discovered.” The receipt and release set forth that Kenneth Craft claimed to have been exposed to certain chemicals, and/or substances, including but not limited to Corexit 7674, Corexit 7739-A and Corexit 7741. Kenneth Craft warranted that he discussed his medical condition with his own physicians and was fully aware of his medical and physical condition and of the prognosis for the future. He warranted that he was aware that his condition could worsen, and that future surgery might be required. With this knowledge, he completely gave up any and all rights he had against ExxonMobil, | fieven if his condition worsened in the future. Kenneth Craft accepted $5,000 in consideration of his release of ExxonMobil.

The doctrine of res judicata is ordinarily premised on a final judgment on the merits; however, it also applies where there is a transaction or settlement of a disputed or compromised matter that has been entered into by the parties. Ortego v. State, Dept. of Transp. and Develop., 96-1322 (La.2/25/97), 689 So.2d 1358, 1363.

The Supreme Court defined the civilian concept of cause of action within the context of a claim of res judicata as follows:

It is well-settled that the term “cause of action” as used in La. R.S. 13:4231 is a mistranslation from the French and really refers to the civil law concept of cause. “Cause in this context has been defined as ‘the juridical or material fact which is the basis of the right claimed, or the defense pleaded.’ It is the legal obligation upon which the action is founded.

Preis v. Standard Coffee Service Co., 545 So.2d 1010, 1013 (La.1989) (citations omitted; emphasis added.)

Kenneth Craft’s petition in the first lawsuit alleged negligence and strict liability on the part of ExxonMobil. His second lawsuit alleged negligence and strict liability on the part of ExxonMobil. The receipt and release signed by Kenneth Craft in consideration of $5,000 forever discharged ExxonMobil from any and all liability or claims whether based on negligence connected with the injuries sustained, whether now known or hereinafter discovered. Kenneth Craft warranted |7that he knew his condition could worsen based on discussions with his own physicians.

We find that Kenneth Craft’s second lawsuit stems from the same juridical or material facts as the first lawsuit. The legal obligation of ExxonMobil was to protect Kenneth Craft from harm. Thus, the duty owed by ExxonMobil is the same in both lawsuits. Further, it is undisputed that Kenneth Craft compromised all claims against ExxonMobil by signing the receipt and release in 1988. Accordingly, we find no error in the trial court’s sustaining Exx-onMobil’s exception of res judicata in the Kenneth Craft suit.

Similarly, the first lawsuit filed by plaintiffs Frances Craft and her children alleged that their husband/father’s death was the result of exposure at his workplace to chemicals manufactured by Exx-onMobil. Plaintiffs alleged that decedent’s injuries and death resulted from the fault of ExxonMobil, both for negligence and strict liability. ExxonMobil responded by filing a motion for summary judgment. The statement of undisputed material facts submitted with the motion set forth that:

1. The decedent, Lee Dell Craft, Sr., had a lifelong history of heavy cigarette consumption of greater than two packs per day.
2. On March 23, 1984, Mr. Crafty was diagnosed as having small cell or oat cell carcinoma.
3. The type of cancer that Mr. Craft was diagnosed as suffering from has been associated only with cigarette consumption.
4. Mr. Craft’s diagnosing physician is not aware of any chemical that ■ could have been the cause in fact of Mr. Craft’s cancer.
5. The cancer from which Mr. Craft suffered was a consequence of social habit, not work habit.

|RThe above facts were excerpted from the deposition of Dr. Brooks Emory, Mr. Craft’s treating physician. ExxonMobil argued that because there was no dispute that the cause in fact of Mr. Craft’s lung cancer was the result of his lifelong habit of heavy cigarette smoking, not chemical exposure, no liability could be assessed against ExxonMobil, and it was entitled to judgment as a matter of law. The trial court granted summary judgment, which has since become final.

In the second suit, plaintiffs again argue that defendant ExxonMobil is liable for decedent’s injuries and death on theories of negligence and strict liability. As in the Kenneth Craft suit, the underlying cause of action stems from the same juridical and material facts as the first lawsuit. In both suits plaintiffs aver that ExxonMobil had a duty to warn and protect the decedent from the harm suffered. The only difference in the two suits is that plaintiffs seek to rely on different evidence to support the same legal principles. This does not state a new cause of action. Perkins v. Scaffolding Rental and Erection Serv., Inc., 568 So.2d 549 (La.1990); contra, Mitchell v. Bertolla, 340 So.2d 287 (La.1976). Accordingly, we find no error in the judgment of the trial court sustaining ExxonMobil’s exception of res judicata in the Frances Craft suit.

In their second assignment of error, plaintiffs Kenneth and Fanette Craft, argue that the trial court erred in sustaining ExxonMobil’s exception of prescription on Fanette’s claim of loss of consortium.

Plaintiffs’ argument is based on a theory of contra non valentem. Plaintiffs claim that Fanette Craft did not possess the requisite knowledge to assert a consortium claim until she discovered her husband’s injuries were caused by exposure to radioactive materials. This information was intentionally withheld by | aExxonMobil from workers. However, once possessed of that knowledge, she timely filed suit within one year.

ExxonMobil counters that Fanette’s claim prescribed on the face of the petition. It argues that because a loss of consortium claim is derivative of the primary victim’s injuries, the claim is subject to the one-year liberative prescription for delictual actions. Kenneth first learned of his injuries in 1984, a fact admitted in the petition. Therefore, her claim filed in 1997 is prescribed.

The compensable elements of a claim for loss of consortium of a spouse include loss of love and affection, loss of companionship, loss of material services, loss of support, impairment of sexual relations, loss of aid and assistance, and loss of felicity. Choyce v. Sisters of the Incarnate Word, 25,958 (La.App.2d Cir.8/19/94), 642 So.2d 287. The loss of consortium claim stems from the injuries sustained by the spouse. See, Ferrell v. Fireman’s Fund Ins. Co., 96-3028 (La.7/1/97), 696 So.2d 569, 573.

The 1997 petition states on its face that Kenneth Craft first learned of his injuries in 1984. The flaw in plaintiffs’ position is that they argue they did not discover a possible, additional cause for these injuries until shortly before filing suit in 1997. Prescription begins to run from the date of injury, not from the date additional suspected causes for the injury are discovered. Accordingly, we find no error in the trial court sustaining the exception of prescription as to Fanette Craft’s loss of consortium claim.

Thus, for the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED

      . All plaintiffs sued numerous oil companies. However, for purposes of this appeal, we will refer only to ExxonMobil, the appellee herein.

      . The trial court also sustained ExxonMobil’s exception of no cause of action to a third-party demand filed by OFS, Inc., and a partial exception of no cause of action for plaintiffs’ claims for bailment and breach of contract. Those rulings have not been appealed, and have become final.

      . These are the chemicals specifically named in the petition.

      . We take judicial notice of the fact that Kenneth Craft’s father, with whom Kenneth worked at ITCO, died of lung cancer in 1986, two years before Kenneth signed the subject receipt and release.


author: LOMBARD, J.

text:
    Michael KAUFMAN, IV v. FISHERY PRODUCTS OF LOUISIANA, INC.
    No. 2003-CA-0523.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 3, 2004.
   ON REHEARING GRANTED

LOMBARD, J.

The rehearing is granted for the purpose of deleting the following sentence which appears on page 6 of the opinion: “If the rehabilitation helps him manage his pain and lose weight so that he can have the knee surgery, perhaps in the future he will be able to work.. ”


author: WALLER, Presiding Justice,

text:
    MISSISSIPPI COMMISSION ON JUDICIAL PERFORMANCE v. Albert G. GIBSON, Jr.
    No. 2004-JP-00442-SCT.
    Supreme Court of Mississippi.
    Sept. 16, 2004.

      Luther T. Brantley, III, attorney for appellant.
    Pro se, attorney for appellee.
   WALLER, Presiding Justice,

for the Court.

¶ 1. The Mississippi Commission on Judicial Performance has recommended that Municipal Court Judge Albert G. Gibson, Jr. of Derma, Mississippi be publicly reprimanded and assessed costs of the proceedings against him for dismissing, without notice or hearing, a fine imposed by another municipal court judge in his jurisdiction. We adopt the recommendation of the Commission and Judge Gibson to the extent that they propose public reprimand as well as assessing costs of these proceedings ($100). We further impose a fine against Judge Gibson of $330.00, the amount lost by the City of Derma in fines and court costs as a result of his actions.

FACTS

¶ 2. In August of 1994, Floyd Yates was charged with driving while his license was suspended. Yates failed to appear in court, and Derma Municipal Court Judge Jimmy Vance continued the case until September. Yates again failed to appear in September, and Judge Vance found him guilty and fined him $200 plus $22.50 in court costs.

¶ 3. In June of 1997, Judge Vance cited Yates for contempt of court for failure to pay the fine and imposed an additional fine of $107.50. In April of 1998, a ten-day notice of failure to pay was sent to Yates, and the next month the Derma Municipal Court suspended Yates’ drivers license. In February of 2003, Derma Municipal Court Judge Albert G. Gibson, Jr. set aside the judgments by Judge Vance without any notice or hearing.

ANALYSIS

Standard of Review

¶ 4. We conduct de novo review of judicial misconduct proceedings, giving great deference to the findings, based on clear and convincing evidence, of the recommendations of the Mississippi Commission on Judicial Performance. Miss. Comm’n on Judicial Performance v. Gunn, 614 So.2d 387, 389 (Miss.1993). While we do give great deference to the Commission’s findings, we are also charged to render an independent judgment. Miss. Comm’n on Judicial Performance v. Peyton, 645 So.2d 954, 956 (Miss.1994). We are the trier of fact and have the sole power to impose sanctions in judicial misconduct cases. Id.

Whether Judge Gibson Acted Inappropriately

¶ 5. The Commission found that Judge Gibson’s conduct violated Section 177A of the Mississippi Constitution of 1890 as amended, in that he engaged in “willful misconduct in office” and “conduct prejudicial to the administration of justice which brings the judicial office into disrepute[.]” Miss. Const, art. 6, § 177A (b) & (e). In regard to what actions constitute willful misconduct in the judicial office, we have held:

Willful misconduct in office is the improper or wrongful use of power of his office by a judge acting intentionally, or with gross unconcern for his conduct and generally in bad faith.... A specific intent to use the powers of the judicial office to accomplish a purpose which the judge knew or should have known was beyond the legitimate exercise of his authority constitutes bad faith.... Willful misconduct in office of necessity is conduct prejudicial to the administration of justice that brings the judicial office into disrepute.

In re Quick, 553 So.2d 522, 524-25 (Miss.1989).

¶ 6. Judge Gibson has agreed to the Commission’s recommendation and has joined the Commission’s motion for approval of its recommendations. Accordingly, the judge’s decision acknowledges that his actions constituted willful misconduct prejudicial to the administration of justice which brought the judicial office into disrepute, and we need not make any further findings on this issue.

Appropriate Punishment for Judge Gibson

¶ 7. We have publicly reprimanded, assessed the costs of the proceeding, and fined a judge for acting outside of the scope of her authority when she suspended the sentence of a former client and placed an inmate on probation after his conviction and sentence had been affirmed by the court of appeals. Miss. Comm’n on Judicial Performance v. Sanders, 708 So.2d 866, 877-78 (Miss.1998); see also Miss. Comm’n on Judicial Performance v. Russell, 691 So.2d 929 (Miss.1997). In Sanders, we found that public reprimand and a fine of $1500 were the appropriate punishment for a judge who acted without authority in usurping the judgments of other state courts. Sanders, 708 So.2d at 877-78. In determining whether or what fine to impose, the Sanders Court relied entirely upon the recommendation of the Commission. Id. at 877. However, in determining the propriety of whether to impose a public reprimand, the Sanders Court used the Baker test which considers mitigating factors, along with evidence from the case, that weigh in favor of confidential, private action. Id.

¶ 8. In Mississippi Commission on Judicial Performance v. Bishop, 761 So.2d 195, 198 (Miss.2000), we named Baker’s seven-factor test and inaccurately held those factors were to be used “when determining appropriate judicial sanctions.” In fact, as noted above, the purpose of Baker’s test is to determine “whether a repri mand should be public ... [rather than a] confidential, private action.” Miss. Judicial Performance Comm’n v. Walker, 565 So.2d 1117, 1125 (Miss.1990) (emphasis added), citing In re Baker, 535 So.2d 47 (Miss.1988). However, our mistaken description of the test highlights the need for a generally applicable test to provide greater uniformity in regard to the punishments given in judicial misconduct proceedings.

¶ 9. Today, in line with the spirit of Bishop, we modify Baker to apply generally to the determination of all sanctions in judicial misconduct proceedings (rather than merely applying to the question of public reprimand) and examine the appropriateness of such sanctions based on the following factors: (1) The length and character of the judge’s public service; (2) Whether there is any prior ease law on point; (3) The magnitude of the offense and the harm suffered; (4) Whether the misconduct is an isolated incident or evidences a pattern of conduct; (5) Whether moral turpitude was involved; and (6) The presence or absence of mitigating or aggravating circumstances.

¶ 10. First, there is no evidence on the record of the length or character of Judge Gibson’s public service. Second, as noted above, in Sanders we found that judicial usurpation of the authority of other state courts deserved public reprimand and a fine of $1500. However, we note that Sanders is different in that Judge Sanders was cited for two violations while Judge Gibson’s conduct occurred only once. In cases where judges have dismissed fines or tickets, we have previously held that the appropriate punishment for such conduct is payment of the amount of fines inappropriately dismissed. See Miss. Comm’n on Judicial Performance v. Boy-kin, 763 So.2d 872 (Miss.2000). In this case, the amount of lost fines and court costs to the City of Derma was $330.00. Third, the nature of the conduct was a gross abuse of Judge Gibson’s power to act in his official capacity as a municipal court judge. Fourth, the record does not show any other incidents that demonstrate that this type of behavior evidences a pattern of conduct by Judge Gibson. Fifth, there was no moral turpitude involved in the offense. Finally, aggravating circumstances are present in that, along with dismissing a ticket, Judge Gibson dismissed another judge’s order and did so without notice or hearing. Mitigating circumstances are also present in light of the fact that Judge Gibson has publicly acknowledged the inappropriateness of his conduct and agrees with the findings of the Commission.

CONCLUSION

¶ 11. Judge Gibson’s actions constituted willful misconduct prejudicial to the administration of justice which brought the judicial office into disrepute. Accordingly, we adopt the recommendation of the Commission and Judge Gibson to the extent that they have proposed public reprimand and the cost of these proceedings ($100). The public reprimand shall be administered in the Calhoun County Circuit Court by the presiding circuit court judge, in open court with Judge Gibson present on the first day of the next court term after this decision becomes final. We also fine Judge Gibson $330.00, the amount lost by the City of Derma in fines and court costs as a result of his actions, and further add that such deplorable conduct which brings the Mississippi judiciary into disrepute will not be tolerated as it is an affront to the dignity of all courts.

¶ 12. CITY OF DERMA MUNICIPAL COURT JUDGE ALBERT G. GIBSON, JR. SHALL BE PUBLICLY REPRIMANDED IN OPEN COURT BY THE PRESIDING JUDGE OF THE CALHOUN COUNTY CIRCUIT COURT ON THE FIRST DAY OF THE NEXT TERM OF THAT COURT AFTER THIS DECISION BECOMES FINAL, SHALL PAY THE COSTS OF THIS PROCEEDING OF $100.00 AND SHALL PAY TO THE CITY OF DERMA A FINE OF $330.00.

SMITH, C.J., COBB, P.J., CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ„ CONCUR. DIAZ AND EASLEY, JJ., NOT PARTICIPATING.

      . Those factors are: (1) The length and character of the judge's public service; (2) Positive contributions made by the judge to the courts and the community; (3) The lack of prior judicial precedent on the incident in issue; (4) Commitment to fairness and innovative procedural form on the part of the judge; (5) The magnitude of the offense; (6) The number of persons affected; and (7) Whether moral turpitude was involved. Miss. Judicial Performance Comm’n v. Walker, 565 So.2d 1117, 1125 (Miss.1990), citing In re Baker, 535 So.2d 47, 54 (Miss.1988).

      . Moral turpitude includes, but is not limited to, actions which involve interference with the administration of justice, misrepresentation, fraud, deceit, bribery, extortion, or other such actions which bring the judiciary into disrepute.


author: GRAVES, Justice,

text:
    NOXUBEE COUNTY SCHOOL DISTRICT v. UNITED NATIONAL INSURANCE CO. and Murdock Claims Management Company.
    No. 2003-CA-00936-SCT.
    Supreme Court of Mississippi.
    Sept. 30, 2004.

      Kenneth Mayfield, Tupelo, Bennie L. Turner, West Point, William E. Catledge, Tupelo, attorneys for appellant.
    Rebecca Suzanne Blunden, Charles G. Copeland, Ridgeland, J. Wade Sweat, attorneys for appellees.
   GRAVES, Justice,

for the Court.

¶ 1. This case involves an insurance dispute between an insurer and an insured with the central issue bearing on coverage and the applicability of an exclusionary clause. The trial court granted summary judgment in favor of defendants United National Insurance Company and Mur-dock Claims Management Company. We are called upon to consider whether the trial court’s grant of summary judgment was proper in this case. Finding no reversible error, we affirm the trial court’s judgment.

FACTS AND PROCEEDINGS BELOW

¶2. On November 11, 1999, United National Insurance Company (“United”) issued and Noxubee County School District (“Noxubee County”) purchased a School Board Legal Liability policy. The policy contained the following relevant language:

The Company will pay on behalf of the INSURED all sums which the INSURED shall become legally obligated to pay as DAMAGES to which this insurance applies, not exceeding the limit of liability, as a result of CLAIMS first made against any INSURED during the POLICY PERIOD or, if applicable, the Basic Extended Discovery Period and/or the Supplemental Extended Discovery Period, as provided for in ARTICLE III, below, by reason of WRONGFUL ACTS OR WRONGFUL EMPLOYMENT ACTS in the performance of duties on behalf of the EDUCATIONAL ENTITY. This insurance does not apply to WRONGFUL ACTS or WRONGFUL EMPLOYMENT ACTS which occurred before the Retroactive Date, if any, shown in the Declarations or which occur after the end of the POLICY PERIOD.

The policy also contained the following exclusionary clause (“Exclusion 12”) which is applicable:

The Company shall not make any payment relative to, nor defend any suit in connection with, any CLAIMS made against an INSURED: . (12) For back wages, overtime, or future wages (even if designated as liquidated damages); or arising from collective bargaining agreements.

¶ 3. On July 12, 2000, more than 100 of its employees and former employees (“Plaintiffs”) brought suit against Noxubee County in federal district court alleging that Noxubee County failed to compensate them for overtime work pursuant to § 216(b) of the Fair Labor Standards Act (“FLSA”)(hereinafter “overtime suit”). The Plaintiffs sought compensation for their overtime pay, statutory penalties permitted by the FLSA, and an award of attorneys’ fees as mandated by the FLSA. Shortly thereafter, Noxubee County forwarded a demand letter along with the Plaintiffs’ complaint to Chandler-Sampson Insurance Agency (“Chandler-Sampson”), the local agent for United. In its letter to Chandler-Sampson, Noxubee County stated it had been made a defendant in a lawsuit by employees asserting that they were entitled to overtime compensation. During the claims process, Noxubee County also notified Southern Cross Underwriters, Inc. (“Southern Cross”), the underwriter of this particular policy, concerning the overtime suit and the possible exposure to liability. Shortly thereafter, Mur-dock Claims Management Company (“Murdock”), the claims adjuster for United, informed Noxubee County that United was denying Noxubee County’s request for coverage. United identified the basis for this denial was Exclusion 12 of the policy, which provided that Noxubee County was not entitled to a defense to or indemnification for a claim against it for overtime.

¶ 4. Seven months later, Noxubee County stated its disagreement with United’s response and memorialized its position in a letter dated May 11, 2001. Upon receipt of this letter, Murdock reopened the file and sought an outside legal opinion as to the coverage issues presented by Noxubee County. Murdock hired an independent law firm to review the merits of the overtime suit, the applicable provisions of the school board policy, and any controlling case law. Its findings revealed that the prior denial of coverage was “both appropriate and correct.” Murdock communicated its continuing denial of Noxubee County’s request for coverage in the overtime suit.

¶ 5. As a result, on August 27, 2001, Noxubee County filed this suit in the Circuit Court of Noxubee County, Mississippi, against United, Murdock, Southern Cross, and Chandler-Sampson. Noxubee County filed an Amended Complaint against Wellington & Associates as an additional defendant, but Wellington & Associates was never served. On January 17, 2003, United and Murdock filed a joint motion for summary judgment. On January 29, 2003, Noxubee County moved for partial summary judgment. On March 12, 2003, the trial court, from the bench, granted summary judgment in favor of United and Murdock. Noxubee County appeals the ruling of the trial court, citing three errors. Finding none, we affirm the trial court’s grant of summary judgment in favor defendants, United and Murdock.

DISCUSSION

¶ 6. The standard for summary judgment is governed by Rule 56 of the Mississippi Rules of Civil Procedure. Miss. R. Civ. P. 56. Under Rule 56(c), “judgment shall be rendered ... if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. In reviewing a trial court’s grant of summary judgment, the standard of review is well settled in Mississippi. This Court employs a de novo standard in reviewing a trial court’s grant of summary judgment. O’Neal Steel, Inc. v. Millette, 797 So.2d 869, 872 (Miss.2001). In conducting the de novo review, this Court looks at all eviden-tiary matters, including admissions in pleadings, answers to interrogatories, depositions, and affidavits. Lee v. Golden Triangle Planning &. Dev. Dist., Inc., 797 So.2d 845, 847 (Miss.2001). This evidence must be viewed in the light most favorable to the party against whom the motion for summary judgment has been made. See Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1209 (Miss.2001); Leslie v. City of Biloxi, 758 So.2d 430, 431 (Miss.2000); Brown v. Credit Ctr., Inc., 444 So.2d 358, 362-65 (Miss.1983).

I. Did the trial court prematurely and incorrectly grant summary judgment in favor of United and Murdock?

¶ 7. Noxubee County argues that the trial court failed to examine all the evidence as well as the briefs before granting summary judgment in favor of United and Murdock. Also, Noxubee County alleges that the grant of summary judgment was a premature approach to dispose of this litigation considering that the impending trial date was but a few weeks away from the summary judgment hearing. Thus, Nox-ubee County believes that the trial court’s grant of summary judgment improper, and too hasty. We hold that both these contentions, lack legal substance and are without merit.

¶ 8.' In reaching its decision on summary judgment, the trial court referred to and relied upon Oktibbeha County Sch. Dist. v. Coregis Ins. Co., 173 F.Supp.2d 541, 543 (N.D.Miss.2001), for the proposition that a school district’s failure to comply with FLSA in a manner which makes the school district liable for overtime compensation is not a “loss” within the meaning of a district’s legal liability policy. • We note that Coregis is factually similar to this case. In Coregis, Plaintiffs brought suit against the Oktibbeha County School District alleging that the school district failed to pay them overtime compensation in violation of FLSA. Id. at 542. The Oktibbeha County School District had a school board policy with .Coregis Insurance Company which provided coverage for damages resulting from a “wrongful act.” Id. at 543. The school board argued that insurance policy issued to the school district indemnified the district for damages paid as a result of the overtime suit. Id. In Coregis, the trial court disagreed with the school district and. held that the school district’s failure to comply with FLSA in a manner which makes the school district liable for overtime compensation is not within the scope of coverage of the district’s legal liability policy. Id.

¶ 9. In comparing the instant action with Coregis-, we note that the policy language presented in this case is actually clearer than the policy language in Core-gis. For instance, the policy in Coregis defined a wrongful act as “any act, error or omission of an Insured constituting a breach of a duty imposed by law or a breach of an Employment Contract.” Id. The policy here “wrongful act” as follows:

[A]ny actual or alleged errors, misstatements, misleading statements, acts or omissions, neglect or breach of duty, individually or collectively including actual or alleged violations of civil rights protected under 42 U.S.C. § 1981 et. seq., or any similar federal, state or local laws, or any matter claimed against an INSURED solely by reason of their being or having been INSUREDS which were committed solely in the performance of duties for the EDUCATIONAL ENTITY.

Likewise, the United policy defines a “wrongful employment act” as either the “refusal to employ,” the “termination of employment,” or “coercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation, discrimination or other employment-related practices, policies, acts or omission.” It is clear to this Court that Noxubee County’s deliberate decision not to compensate its employees for overtime pay is neither a “wrongful act” nor a “wrongful employment act” within the definitions under this policy. Such a deliberate decision would certainly not give rise to coverage under these facts before this Court.

¶ 10. Further, the trial court in Coregis held that even if the Oktibbeha County overtime suit was within the meaning of a “wrongful act,” the policy contained two provisions which; nevertheless, excluded coverage. Id. The exclusionary provisions in Coregis are set forth below:

Exclusion A: [A]ny Claim or Loss Arising Out of any Insured gaining profit, remuneration or advantage to which the Insured is not entitled is specifically excluded from coverage. Exclusion B: [A]ny claim or Loss Arising Out of any criminal, dishonest, malicious, fraudulent or knowingly wrongful act or omission.

Id. Here, Noxubee County’s policy contained Exclusion 12 which expressly excludes any claim for “back wages, overtime, or future wages (even if designated as liquidated damages); or arising from collective bargaining agreements.

¶ 11. We hold that Noxubee County’s failure to comply with FLSA in a manner which makes the school district liable for overtime compensation is neither a “wrongful act” nor a “wrongful employment act” within the meaning of a district’s legal liability policy, sufficient to bar coverage. It follows that even if Noxubee County’s failure to comply with FLSA would constitute a “wrongful act” or a “wrongful employment act” under the language of the policy, coverage would nevertheless be denied due to the specific exclusion of claims for back wages, overtime, or future wages as set forth in Exclusion 12. Thus, the trial court properly relied upon Coregis, and the grant of summary judgment in favor of United and Murdock was properly based upon this precedent.

¶ 12. Secondly, Noxubee County contends that the trial court reached its decision on summary judgment too quickly. After several hours of oral arguments and after reviewing Noxubee County’s motion, responses, and brief, the trial judge issued a bench ruling, wherein he adopted the rationale of Coregis. We find this argument is not supported by any case law and is completely without merit. This Court has upheld a trial court’s grant of summary judgment from the bench where the threshold requirements of Miss. R Civ. P. 56(c) have been satisfied. See Peden v. City of Gautier, 870 So.2d 1185, 1187 (Miss.2004) (chancellor took judicial notice of a court file in an annexation proceeding and thereafter issued a ruling from the bench granting the city’s motion for summary judgment). It appears that Judge Kitchens’s decision to rule on the parties’ summary judgment motions was reasonable and well within his discretion. Nox-ubee County cites no authority from this Court which would suggest error in a trial court granting summary judgment from the bench where the familiar threshold of Rule 56(c) has been satisfied.

II. Did the trial court err in not granting summary judgment in favor of Noxubee County on the issue of coverage under the school board policy?

¶ 13. The interpretation of an insurance policy is a question of law, not one of fact. Lewis v. Allstate Ins. Co., 730 So.2d 65, 68 (Miss.1998) (citing Johnson v. Preferred Risk Auto. Ins. Co., 659 So.2d 866, 871 (Miss.1995)). Generally, under Mississippi law, when the words of an insurance policy are plain and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written. Paul Revere Life Ins. Co. v. Prince, 375 So.2d 417, 418 (Miss.1979). Under Mississippi law, ambiguous and unclear policy language must be resolved in favor of the non-drafting party — the insured. Harrison v. Allstate Ins. Co., 662 So.2d 1092, 1094 (Miss.1995). Further, provisions that limit or exclude coverage are to be construed liberally in favor of the insured and most strongly against the insurer. Nationwide Mut. Ins. Co. v. Garriga, 636 So.2d 658, 662 (Miss.1994).

¶ 14. Noxubee County argues that the trial court erred in its interpretation of the contractual language, specifically Exclusion 12. Noxubee County contends that the trial court gave Exclusion 12 the broadest interpretation possible, thus running afoul of the above standard. We disagree. Only when the policy language is ambiguous and unclear will the trial court resolve any differing interpretations in favor of the non-drafting party, usually the insured. Harrison, 662 So.2d at 1094. But here, a fair reading of Exclusion 12 communicates its perfect clarity. It states that United would not make any payments nor defend any suit in connection with any claims for back pay, overtime and future wages. The trial court properly observed that Exclusion 12 was unambiguously clear and concluded that the provision excluded suits involving overtime compensation, as well as, damages likely to flow from such suits. To the dismay of Noxubee County, Exclusion 12 is unmis-takenly clear in form as well as substance.

¶ 15. Noxubee County argues that in the overtime suit, the Plaintiffs sought compensation for their overtime pay, the statutory penalties permitted by the FLSA, and an award of attorneys’ fees as mandated by the FLSA. While the contract excludes compensation for overtime pay, Noxubee County contends that United should be forced to indemnify it for statutory penalties and attorneys’ fees which are not specifically excluded. The umbrella paragraph preceding the listed exclusions contains: “The Company shall not make any payment relative to, nor defend any suit in connection with, any CLAIMS made against an INSURED: .... ” (emphasis added). The parties devote a great bit of attention in their briefs to the language “connected with” or “relative to.” The school board policy does not define either phrase, and in such instances where the insurance policy does not provide the definition for a term or phrase, those words are afforded their ordinary and popular meaning. Blackledge v. Omega Ins. Co., 740 So.2d 295, 298 (Miss.1999). Thus, when these phrases are afforded their ordinary meanings, the policy must be construed in such a fashion that Exclusion 12 completely disallows coverage for overtime claims, as well as, payments made relative to, or in connection with overtime claims. Because Exclusion 12 prohibits overtime claims, it also bars statutory penalties and attorneys’ fees arising from such overtime claims. Thus, we hold that the trial court correctly concluded that Exclusion 12 prohibited coverage for overtime compensation claims, as well as, damages relative to or in connection with such claims.

¶ 16. Insurance policies are contracts, and as such, they are to be enforced according to their provisions. United States Fidelity & Guar. Co. v. Knight, 882 So.2d 85, 92 (Miss.2004). When parties to a contract make mutual promises (barring some defense or condition which excuses performance), they are entitled to the benefit of their bargain. Thus, insurance companies must be able to rely on their statements of coverage, exclusions, disclaimers, definitions, and other provisions, in order to receive the benefit of their bargain and to ensure that rates have been properly calculated. Id. Thus, United must be able to rely on the exclusions set forth in this policy to receive the benefit of its bargain with Noxubee County. Thus, the trial court did not err in denying Noxubee County’s motion for summary judgment.

III. Did Noxubee County present sufficient evidence of bad faith on the part of United to create a jury question?

¶ 17. Lastly, Noxubee County avers that United’s denial of coverage constituted bad faith so as to give rise to a jury question. Noxubee County contends that United and Murdock acted in bad faith in summarily denying coverage without making a proper investigation in the underlying basis for the claim. However, the record contains ample evidence that United and Murdock acted in good faith and thoroughly considered the merits of the overtime suit before denying coverage.

¶ 18. The record reflects that United and Murdock considered the merits of Noxubee County’s overtime suit and denied coverage based upon Exclusion 12. Also, some seven months later, Noxubee County disagreed with the position taken by United and requested that United reexamine the claim. To this end, Murdock reopened the file and sought an outside legal opinion as to the coverage issues presented by Noxubee County. Its findings revealed that the prior denial of coverage was “both appropriate and correct.” Murdock communicated its continuing denial of Noxubee County’s request for coverage in the overtime suit. We find that there is absolutely no evidence in the record to suggest a mishandling of the claim for coverage of the overtime suit nor a breach of the implied covenant of good faith and fair dealings which United owed to Noxubee County. Clearly the actions of United and Murdock in this suit did not constitute bad faith.

CONCLUSION

¶ 19. Because Noxubee County’s failure to comply with the FLSA in a manner which exposes the district to liability for overtime compensation is neither a “wrongful act” nor a “wrongful employment act” within the meaning of the school board policy, the trial court did not err in granting summary judgment in favor of United and Murdock. Further, Exclusion 12 of the school board policy specifically excludes claims brought against Noxubee County regarding back wages, overtime, or future wages. Exclusion 12 is clear and unambiguous and should be enforced according to its terms. A thorough review of the record reveals absolutely no evidence of bad faith by United and Murdock in denying Noxubee County’s request for coverage. Therefore, the trial court’s grant of summary judgment in favor of United and Murdock was completely proper. The trial court’s judgment is affirmed.

¶ 20. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P JJ., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

      . Policy LSB 0000595 was effective from October 1, 1999, to October 1, 2000. The school board policy provided $1,000,000.00 in liability coverage per claim subject to an annual aggregate limit of $1,000,000.00. The policy was subject to a $2,500.00 deductible.

      .29 U.S.C. § 216(b) (2001) is the enforcement provision of the Fair Labor Standards Act of 1938, as amended. In addition to employee compensation, the statute allows for statutory penalties and attorneys' fees. The United States Supreme Court has held that § 216(b) is unconstitutional to the extent that it allows for suits against states in state courts which have not waived sovereign immunity. See Alden v. Maine, 527 U.S. 706, 707, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999).

      . The demand for attorneys' fees made by the Plaintiffs was only viable because of the language of 29 U.S.C. § 216(b). Generally, Mississippi does not allow for attorneys’ fees when such an award is “not authorized by the contract [in dispute] or by statute.” Hamilton v. Hopkins, 834 So.2d 695, 700 (Miss.2003); Miller v. Allstate Ins. Co., 631 So.2d 789, 795 (Miss.1994).

      . Southern Cross and Chandler-Sampson were later dismissed by an agreed order filed on March 21, 2003.


author: DICKINSON, Justice,

text:
    Rece VAUGHN v. Richard AMBROSINO and Ellen Ambrosino.
    No. 2002-CT-00927-SCT.
    Supreme Court of Mississippi.
    Oct. 14, 2004.

      James L. Powell, Richard A. Courtney, Jackson, Matthew Ivan Hetzel, attorneys for appellant.
    James William Manuel, Margaret Oer-tling Cupples, Stephen L. Thomas, Danielle Daigle Ireland, Jackson, attorneys for appellees.
   ON WRIT OF CERTIORARI

DICKINSON, Justice,

for the Court.

¶ 1. This is a suit brought against Richard and Ellen Ambrosino by their former live-in housekeeper, Rece Vaughn, who claims the Ambrosinos’ dog, Anabelle, ran into a ladder, causing her to fall and sustain serious injuries. Vaughn claims the Ambrosinos should have either restrained Annabelle or warned her that the dog might run into the ladder.

¶2. At the conclusion of a three-day trial, the jury returned a verdict for the Ambrosinos, and the circuit court entered judgment in accordance with that verdict. Vaughn’s subsequent appeal was assigned to the Court of Appeals, which affirmed. Vaughn v. Ambrosino, 881 So.2d 847 (Miss.Ct.App.2003) Unhappy with the decision of the Court of Appeals, Vaughn filed her petition to this Court for a writ of certiorari. Finding the Court of Appeals reached the correct conclusion, but for the wrong reason, we granted the writ.

¶ 3. A proper evaluation of the case requires a brief review of the facts, which we borrow from the opinion rendered by the Court of Appeals:

Vaughn was a full-time housekeeper at the Ambrosinos’ residence. As part of her employment, she lived in a furnished apartment above the garage. She was also paid $125 a week salary. The Ambrosinos were not required to have workers’ compensation coverage because they did not employ the requisite number of employees.
On June 26, 1999, Vaughn was seriously injured when she fell from a ladder while cleaning the twelve foot high kitchen cabinets. She was using the ladder to reach the upper cabinets. She was standing midway up the ladder, when the Ambrosinos’ dog ran under the ladder. Vaughn did not see the dog hit the ladder, she felt the dog impact the ladder. The ladder and Vaughn fell. Vaughn suffered a wound to her head and crushed heel bone in her foot, which required surgery. There was conflicting testimony whether the Ambrosinos instructed Vaughn to clean the cabinets that day and whether or not they allowed her to block off any area of the house from the dog. Vaughn alleged that the Ambrosinos specifically instructed her to clean the cabinets that day, that they told her that she would just need to be careful when cleaning the cabinets, and that she was not to shut the dog out of any part of the house. The Ambrosinos alleged that they did not tell Vaughn to clean the cabinets on her own and that it was her prerogative to close off the dog.

Id. at (¶¶ 2-3).

¶ 4. The case is now before us for final disposition of two assignments of error asserted by Vaughn which relate to jury instruction numbers 15, and 16. Because the arguments regarding the two instructions are interrelated, we shall consider them together.

Jury instruction number 16

¶ 5. At the conclusion of the evidence, the trial judge met with counsel to discuss jury instructions. Much time was spent debating whether Vaughn’s relationship to the Ambrosinos was that of “master/servant,” or “invitee.” Still more time was invested in evaluating the “open and obvious” defense in premises liability law. The trial judge, dissatisfied with the instructions submitted by counsel, attempted to fashion its own instruction setting forth the necessary elements for a finding of liability. This instruction — which ultimately found its way into the record as Jury Instruction 16 — provided:

If you find from a preponderance of the evidence in this case that
1. The plaintiff was an invitee of the defendants and
2. the defendants owned the property or premises and
3. the defendants not restraining their dog while plaintiff was working created a dangerous condition which was not readily apparent upon the defendants’ property, and
4. the defendants failed to keep their property or premises in a reasonably safe condition or warn the plaintiff of a dangerous condition, not readily apparent, of which the defendant had knowledge and
5. the defendants’ failure to keep their property or premises in a reasonably safe condition or warn the plaintiff of a dangerous condition, not readily apparent, was a proximate contributing cause of plaintiffs injuries.
then you shall find for the plaintiff and against the defendants.
However, if you believe that the plaintiff has failed to show any of these elements by a preponderance of the evidence in this case, then your verdict shall be for the defendants.

¶ 6. The court’s instruction was prepared during a break in the jury instruction conference. When counsel returned from the break, the trial judge apparently provided them with a copy of the court’s instruction. Although the instruction was mentioned, it was never discussed during the remainder of the conference. No objection to it was raised, and it was ultimately read to the jury. Vaughn could be said to have waived objection. However, because the trial court refused Vaughn’s proposed instruction 15, which raised the same issues, we will address them.

¶ 7. Vaughn asserts the instructions were flawed because they prevented recovery unless the jury found (1) that she was an “invitee,” and (2) that the alleged dangerous condition was not open and obvious. We begin by analyzing Vaughn’s somewhat puzzling argument concerning “invitee” status, as opposed to “master/servant” status.

Invitee status

¶ 8. Vaughn attempts to classify this case as a “master/servant matter,” rather than a premises liability case involving an “invitee.” Citing Cherry v. Hawkins, 243 Miss. 392, 137 So.2d 815 (1962), for the proposition that a master has the duty to provide his or her servant a reasonably safe workplace, Vaughn concludes that a master will be liable for the “failure to exercise due, ordinary, reasonable care.” In this, we agree. However, we fail to discern any difference in the master’s duty, and that of an owner or occupier of a premises to an invitee (as will be discussed infra). Accordingly, we find no merit to this assignment of error.

¶ 9. It appears that Vaughn urges us to decide this case under “master/servant” law, because she fears if she is classified as an “invitee,” she will not be allowed to recover damages caused by open and obvious dangers. Vaughn is incorrect, and she is not alone.

Open and obvious

¶ 10. This same position taken by Vaughn was passionately argued by defense counsel, accepted by the trial court, and affirmed by the Court of Appeals.

¶ 11. We find clear, controlling authority in Tharp v. Bunge Corp., 641 So.2d 20 (Miss.1994), wherein this Court stated: Mississippi ... until today, still employs the complete defense of a danger being open and obvious. Previously, this Court has found that:

(t)he owner or occupant then is not an insurer against all injuries, (citations omitted). In fact, there is not liability for injuries, where the condition is not dangerous, or where the condition is, or should be, known or obvious to the invitee. King v. Dudley, 286 So.2d 814, 816 (Miss.1973); General Tire & Rubber Co. v. Darnell, 221 So.2d 104, 107 (Miss.1969).

641 So.2d at 24. Tharp went further to hold that “[t]he ‘open and obvious’ standard is simply a comparative negligence defense used to compare the negligence of the plaintiff to the negligence of the defendant.” Id. Finally, in order to make its position crystal clear, this Court concluded:

We now abolish the so-called “open and obvious” defense and apply our true comparative negligence doctrine.

Id. at 25.

¶ 12. It would be useful to pause here and distinguish a claim of a dangerous condition, from a claim that the defendant failed to warn of a dangerous condition. Tharp applies to the former. With respect to the latter, however, it would be strange logic that found it reasonable to allow a plaintiff to pursue a claim against a defendant for failure to warn of an open and obvious danger. One would struggle, indeed, to justify the need to warn a plaintiff of that which was open and obvious. Stated differently, a warning of an open and obvious danger would provide no new information to the plaintiff. Stated still another way, a thing warned of is either already known to the plaintiff, or it’s not. If it’s already known to the plaintiff, then the warning serves no purpose. If it is not already known to the plaintiff, then the thing warned of was not open and obvious in the first instance. Thus, an invitee may not recover for failure to warn of an open and obvious danger.

¶ 13. Returning to jury instruction 16, we note that elements 4, and 5, speak in terms of “defendants’ failure to keep their property or premises in a reasonably safe condition or warn the plaintiff of a dangerous condition, not readily apparent.” Both elements prevent recovery for open and obvious dangers only in “failure to warn” cases. These elements correctly state the law. However, the third element (“Element 3”) prevents recovery for “a dangerous condition which was not readily apparent upon the defendants’ property.” That is to say, if the jury believed the dangerous condition was “readily apparent,” or open and obvious, then Element 3 of the instruction, standing alone, prevented a verdict for the plaintiff. This was an incorrect and improper instruction.

¶ 14. If the jury found that the defendants were negligent in creating a dangerous condition which was open and obvious, the instruction, standing alone, prevented the jury from applying the comparative negligence standard required by Tharp.

¶ 15. The Court of Appeals in the case sub judice incorrectly concluded that jury instruction 16 “accurately conveys the law.” The majority based its conclusion on Nolan v. Brantley, 767 So.2d 234 (Miss.Ct.App.2000), and Little ex rel. Little v. Bell, 719 So.2d 757 (Miss.1998).

¶ 16. Nolan is a “failure to warn” case, and does not support the proposition assigned to it by the Court of Appeals. Little holds that a landowner’s duty to an invitee is to keep the property in a “reasonably safe” condition, and to warn of “hidden dangers” that are not “open and plain.” 719 So.2d. at 760. Thus, citing Nolan and Little as authority for the proposition in Element 3, of jury instruction 16, is a non sequitur.

¶ 17. As stated, jury instruction 16, standing alone, was an improper instruction. However, this Court does “not review jury instructions in isolation.” Adkins v. Sanders, 871 So.2d 732, 736 (Miss.2004). “Rather, we read the instructions as a whole” and “we will not find reversible error “where the instructions actually given, when read together as a whole, fairly announce the law of the case and create no injustice.’ ” Id.

¶ 18. After reviewing all of the jury instructions given by the trial court, we conclude that the flaw in jury instruction 16 does not constitute reversible error. Jury instruction 18 stated:

If you find from a preponderance of the evidence in this case that:
1. The Defendants, Richard and Ellen Ambrosino, were negligent, and
2. The Plaintiff, Rece Vaughn, was negligent, and
3. The negligence of the Ambrosinos and Rece Vaughn were proximate contributing causes of the accident in this case; and
4. Rece Vaughn sustained injuries and damages caused by the combined causal negligence of the Ambrosinos and Rece Vaughn,
then you will, in arriving at your verdict, determine that sum of money which will fairly and adequately compensate Rece Vaughn for said injuries and damages caused by this accident, and reduce this sum in proportion to the causal negligence attributed to Rece Vaughn.

¶ 19. Jury instruction 1 stated, inter alia: “You are not to single out one instruction alone as stating the law, but must consider the instructions as a whole.” (emphasis added).

¶ 20. Jury instruction 3 stated:
Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like or similar circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like or similar circumstances or in failing to do something that a reasonably careful person would do under like or similar circumstances.
¶ 21. Jury instruction 17 stated:
You are instructed by the Court that in applying the doctrine of comparative negligence to this case, you must treat the negligence of the Defendant as a unit, so that you must compare the degree of the Plaintiffs negligence to the sum of the degrees of the Defendants’ negligence, not the degree of each individual Defendant’s negligence.
¶ 22. Jury instruction 20 stated:
If you find from a preponderance of the evidence in this case that the Plaintiff has sustained actual damage as a proximate result of the negligence of the Defendants, then the Plaintiff is entitled to a verdict in an amount which will reasonably compensate her for her losses....

¶ 23. Notwithstanding the singular flaw in Element 3, of jury instruction 16, these additional instructions clearly, correctly and adequately defined “negligence,” and they instructed the jury that, should they find negligence on the part of the defendants, they should return a verdict for the plaintiff. They further instructed the jury with clarity that, should they find negligence on the part of both plaintiff and defendants, they should still return a verdict for the plaintiff, applying a proper comparative negligence reduction.

¶ 24. Vaughn had served as the Ambro-sino’s housekeeper for two years, and was familiar with both the house and Annabelle. Testimony revealed that Vaughn weighed 220 pounds, and was on the first, second or third step — (“I know I was close to the floor”) — -of the ladder. Annabelle weighed between 42 and 45 pounds, and was 23 inches tall. According to the Am-brosino’s version of the facts, Vaughn was not forced to use the ladder. In fact, she had available to her extension poles for cleaning the cabinets. The Ambrosinos denied ever telling Vaughn she could not confine Annabelle, if she wished.

¶ 25. In light of the facts available to the jury, and applying the instructions as a whole, it is entirely reasonable that the jury could have returned a verdict for the Ambrosinos in accord with the instructions, as a whole.

¶ 26. Since the jury instructions, as a whole, properly instructed the jury; and since the facts before the jury could certainly, in concert with those instructions, support a verdict for the Ambrosinos, we affirm the judgment of the Court of Appeals and the circuit court’s judgment entered in accordance with the jury verdict for the Ambrosinos.

¶ 27. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., AND EASLEY, J. CONCUR. CARLSON AND RANDOLPH, JJ., CONCUR IN RESULT ONLY. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.

      . Vaughn consumes most of her brief in apparent concession of this point. However, she mentions, almost as an afterthought, late in the brief: "In addition, even in premises liability cases, an open and obvious or assumption of the risk defense is no longer an absolute bar to recovery.”

      . So muddled has this area of our law apparently become, that both lawyers at trial, the trial court, and the Court of Appeals, all took different positions — all of which were incorrect — as will be discussed infra.

      . An "open and obvious” danger — in the legal sense — is known to the plaintiff; either actually, or constructively.