text:
    Doris J. DAVIS, Appellant, v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Delta Regional Medical Center, Appellees.
    No. 2002-CC-00757-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2003.
    Robert E. Buck, Greenville, attorney for appellant.
    Albert B. White, Madison, John Wesley Garrett, Clinton, attorneys for appellees.
    Before McMILLIN, C.J., MYERS and GRIFFIS, JJ.
   GRIFFIS, J.,

for the court.

¶ 1. Doris Davis was terminated from her job as patient service representative at Delta Regional Medical Center. Her claim for unemployment benefits was denied on the grounds that Davis was discharged for misconduct. Davis appealed this decision. The appeals referee, the board of review, and the circuit court affirmed the denial of benefits. Finding the record lacked sufficient evidence to support the Commission’s findings, we reverse and remand.

FACTS

¶ 2. Doris Davis was employed as a patient services representative at Delta Regional Medical Center in Greenville. Her position and job responsibilities required her to register patients for admission to the hospital. She interviewed patients and entered their personal and insurance information into the hospital’s computer system. If the patient had previously received services at the hospital, Davis would access the patient’s file and make any necessary changes. If they were a new patient, Davis would create a new computer file for the patient.

¶3. In November of 1999, the hospital implemented a new computer system. Davis testified that she had some trouble learning the new system. Davis received two written warnings for mistakes she made entering patients’s information. In November of 2000, Davis entered a son’s information under his father’s name. Davis was warned that she needed to be more careful. In March of 2001, Davis incorrectly entered a patient’s admission under her cousin’s name. After this second incident, she was told that if she had any more of the same occurrences, she would be terminated. Following the second incident, Davis asked her supervisor to explain how she was making the errors. After Davis’s supervisor demonstrated the proper procedure to her, Davis made no more mistakes.

¶ 4. Davis was terminated in April of 2001 after the hospital discovered that she had entered a patient’s information under the name of another patient, whose name was similar. The mistake was actually made in February of 2001, prior to her second written warning. The hospital learned of the mistake when the wrong patient received a statement from the hospital showing that her insurance had paid a claim for services not rendered. The person billed had not been to the hospital since 1999. She notified the hospital of the incorrect billing and threatened to report the hospital for insurance fraud. The hospital determined that due to the severity of the error, Davis had to be terminated.

¶ 5. Davis filed a claim with the Mississippi Employment Security Commission for benefits. Her claim was denied on the basis that she was terminated for misconduct. This decision was upheld by the Commission’s appeal’s referee, the review board, and again by the circuit court. Aggrieved, Davis has perfected her appeal asserting the circuit court erred in not reversing the board of review because its decision was not supported by substantial evidence.

STANDARD OF REVIEW

¶ 6. “In any judicial proceedings under this section, the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of said court shall be confined to questions of law.” Miss.Code Ann. § 71-5-581 (Rev. 2002). The Mississippi Supreme Court explained this standard of review in Allen v. Mississippi Employment Security Commission, 639 So.2d 904, 906 (Miss.1994):

This Court’s standard of review of an administrative agency’s findings and decisions is well established. An agency’s conclusions must remain undisturbed unless the agency’s order 1) is not supported by substantial evidence, 2) is arbitrary or capricious, 3) is beyond the scope or power granted to the agency, or 4) violates one’s constitutional rights. A rebuttable presumption exists in favor of the administrative agency, and the challenging party has the burden of proving otherwise. Lastly, this Court must not reweigh the facts of the case or insert its judgment for that of the agency-

ANALYSIS

I. Whether the circuit court erred in not reversing the board of review because its decision was unsupported by substantial evidence.

¶ 7. The applicable standard of review is a rigorous one and requires appellate courts to affirm the decision of the circuit court where there is substantial evidence to support the finding of facts and where the application of law to the facts is neither arbitrary nor capricious. Here, Davis argues that there is no evidence to support the Commission’s findings that she engaged in misconduct in connection with her employment. She claims that she only made “simple errors or mistakes” while entering data into the computer files.

¶ 8. Miss.Code Ann. § 71-5-513A (l)(b) provides the following:

An individual shall be disqualified for benefits:

(b) For the week, or fraction thereof, which immediately follows the day on which he was discharged for misconduct connected with his work, if so found by the commission, and for each week thereafter until he has earned remuneration for personal services performed for an employer, as in this chapter defined, equal to not less than eight (8) times his weekly benefit amount, as determined in each case.

¶ 9. In Wheeler v. Arriola, 408 So.2d 1381, 1383 (Miss.1982), the Mississippi Supreme Court defined the meaning of misconduct:

The term “misconduct,” as used in the unemployment compensation statute, was conduct evincing such willful and wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect from his employee. Also, carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability, wrongful intent or evil design, and showing an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer, came within the term. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, or inadvertences [sic] and ordinary negligence in isolated incidents, and good faith errors in judgment or discretion were not considered “misconduct” within the meaning of the statute.

The question we must now consider is whether Davis’s actions rose to the level of misconduct defined in the statute. We find that her mistakes did not.

¶ 10. To support this conclusion, we examine two Mississippi cases. In Joseph v. Mississippi Employment Security Commission, 771 So.2d 410 (Miss.Ct.App.2000), Phadalia Joseph was fired from her job as a bank teller due to a shortage of $2000 in her cash drawer. Id. at 411(¶ 1). The Commission determined that Joseph should be denied unemployment benefits because she was terminated for misconduct. Id. at 411(¶2). The facts showed that Joseph had been over or under on her drawer balances by one hundred dollars or less on four or five other occasions. Id. at 412(118). Testimony from the bank indicated that Joseph was not fired because of repetitive mistakes, but only for the $2000 shortage. Id.

¶ 11. Following the incident, Joseph was not accused of stealing the missing money, nor were the police asked to investigate. Id. at 412(119). The incident was considered to be an honest mistake by the bank. Id. Furthermore, Joseph was not fired for dishonesty, but rather for negligent actions consistent with an alleged bank policy. Id. The policy was that tellers would be automatically terminated following any occurrence of a teller’s balance being off by more than $1000. Id. The bank policy did not articulate that this type of error would be considered misconduct. Id. In reversing the decision of the Commission, the supreme court found this to be a good faith error that did not rise to this level of misconduct within the meaning of the statute. Id. at 414(¶ 13).

¶ 12. Next, in Allen v. Mississippi Employment Security Commission., 639 So.2d 904 (Miss.1994), Waverly Allen was terminated from his job at Vesuvius USA Corporation for poor job performance. Id. at 905. The Commission found that Allen was terminated for misconduct and denied benefits and the circuit court affirmed. Id. The facts showed that Allen operated a machine that ground the surface of a particular part that Vesuvius manufactured. Id. Allen received one verbal reprimand and one -written reprimand for grinding parts undersize. Id. at 906. The later mistake cost the company $4,000, and Allen was demoted to a lower level job. Id. Allen was again reprimanded in writing for sending parts to the wrong station when he finished with them. Id. And finally, Allen was verbally reprimanded and terminated for placing parts improperly on a rack, causing them to be scratched. Id.

¶ 13. The supreme court found that Allen’s acts could not, as a matter of law, constitute misconduct because the record lacked evidence of wrongful intent or evil design. Id. at 907. Further, the court determined that no indication in the record showed that Allen’s negligence would import a wanton disregard of his employer’s interests in the mind of a reasonable person. Id. The Court found that at worst, Allen’s acts of grinding parts undersize were isolated instances of ordinary negligence. Id. The court held:

As we have stated that “failure in good performance as the result of inability or incapacity, or inadvertences [sic] and ordinary negligence in isolated incidents ... [are] not considered ‘misconduct’ within the meaning of the statute,” Allen should not be denied unemployment benefits. Arriola, 408 So.2d at 1383. The determination by the Commission that Allen’s actions were misconduct, so as to deny him benefits, is not supported by substantial evidence, and, thus, is erroneous.

Id. at 908.

¶ 14. Applying the facts of Joseph and Allen to the case at bar, Davis’s actions may not be classified as misconduct under the statute. Like the claimants in Joseph and Allen, at worst Davis’s acts were mistakes or isolated instances of ordinary negligence. The record shows that the hospital had implemented a new computer system. Davis testified that she had trouble learning the new program. She testified that she did not understand how she was making the errors until it was explained to her after her second warning.

¶ 15. The mistake Davis was discharged for actually occurred before her second warning. When this incident occurred, Davis testified she was still having trouble with the new computer system. Davis was also unaware that she could lose her job if she made any more mistakes. The record shows that after Davis was warned that she would be terminated if she committed any more errors of this type, she made no more mistakes. Her behavior is not that of an employee exhibiting a willful disregard for her employer’s interest. Rather, it is that of an employee consciously making an effort to improve her performance.

¶ 16. Indeed, following the standard of review stated in Allen, we find the record lacked sufficient evidence to support the conclusion that Davis’s actions constituted “carelessness and negligence of such degree, or recurrence thereof, as to manifest culpability” or was a showing of a “substantial disregard of the employer’s interest or of the employee’s duties and obligations to [her] employer.” Wheeler, 408 So.2d at 1383. Accordingly, we find Davis is eligible to receive unemployment benefits. Therefore the lower court’s judgment is reversed and remanded to the Commission for a determination of benefits.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY IS REVERSED AND REMANDED TO THE MISSISSIPPI EMPLOYMENT SECURITY COMMISSION FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND CHANDLER, JJ„ CONCUR.


source: Caselaw Access Project

author: SOUTHWICK, P.J.,

license: Public Domain

text:
    Heather Patrice HOGROBROOKS, Appellant, v. PROGRESSIVE DIRECT, Appellee.
    No. 2002-CP-00663-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2003.

      Heather P. Hogrobrooks appellant, pro se.
    Nicholas E. Bragorgos, attorney for ap-pellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Heather Hogrobrooks’ suit against the insurer of her automobile was dismissed by the Circuit Court of Tunica County. We agree with the trial court that there was no personal jurisdiction over the insurance company. Therefore, we affirm.

STATEMENT OF FACTS

¶ 2. Heather Hogrobrooks, a Tennessee resident, brought suit in Tunica County, Mississippi, again Leroy Odom, Jr. He was the driver of an automobile which allegedly collided with her vehicle in the parking lot of a Tunica County casino. She named Progressive Direct as an additional defendant, claiming that this insurance company had in bad faith refused to pay for repairs to her vehicle. Service of process was obtained on both.

¶ 3. Progressive Direct was Hogro-brooks’ automobile insurance company. She had purchased the policy via the Internet. Progressive Direct gave Hogro-brooks a list of repair shops in the Memphis area and a draft covering the estimated repair costs. She returned the draft and said that she wanted to have her Saab automobile repaired in Texas by a dealer in such vehicles. She claimed that it was unreasonable for Progressive Direct to refuse to pay for the cost of towing the vehicle to Texas. The insurance company would only pay for the costs to have the vehicle repaired locally in Memphis. Progressive Direct did not offer further benefits even after a written demand.

¶ 4. In her complaint, Hogrobrooks claimed that Progressive Direct had refused several demands “to return her vehicle to its pre-loss condition and to mitigate other losses to the plaintiff.” More specifically, the claim was that the company had not properly investigated the cost of repairs to the vehicle, and had refused to be responsible for assuring that the repairs were performed “by certified repair specialist” who had experience with Saab automobiles. She also sought payment for a rental car. All the claims dealt with issues of the repair of the plaintiffs vehicle.

¶ 5. Hogrobrooks alleged that Progressive Direct had no listed agent for service of process in Mississippi. She asserted that Progressive Direct writes policies of automobile insurance for Mississippi residents but made no similar assertion about Mountain Laurel. The relationship between the two companies is not explained in the record. The complaint makes no assertion of a connection, but service was requested both on Progressive Direct and on Mountain Laurel, both at post office boxes in Cleveland, Ohio. At the hearing on the insurance company’s motion to dismiss, defense counsel stated that though Progressive Direct was the named defendant, “our correct corporate identity” is Mountain Laurel Assurance Company. The motion to dismiss is not in the record, and perhaps a more detailed assertion appeared in it.

¶ 6. Hogrobrooks in her response to the motion to dismiss and in a statement of “Uncontroverted Material Facts,” alleged that Progressive Direct is a subsidiary of The Progressive Corporation, an Ohio corporation. She alleged that this latter corporation did business in Mississippi as Progressive Adjusting Company, Inc., and had a local agent for service of process. Progressive Corporation and Progressive Adjusting were said to have the same Ohio address, but their relationship to each other and to Progressive Direct was not otherwise shown.

¶ 7. Progressive Direct filed a limited appearance to contest jurisdiction. After a hearing on the motion to dismiss, the court concluded that Hogrobrooks was a resident of Tennessee. The court implicitly accepted that Mountain Laurel Assurance Company was the proper defendant, and that it was an Ohio corporation doing business in Tennessee. The court also found that the insurance policy was negotiated and issued in Tennessee; the place of the performance of the contract was Tennessee; and Mountain Laurel Assurance Company did not make a contract, commit a tort, conduct business or perform work or service in Mississippi. The court also concluded that Tennessee law would apply to this dispute between these parties.

¶ 8. The court held that it had no subject matter jurisdiction over the dispute between these two parties since they were not Mississippi residents, none of the actions creating this dispute occurred in Mississippi, and Mississippi law would not govern the litigation. It also found that it had no personal jurisdiction over Mountain Laurel Assurance Company since it did not have sufficient contacts with Mississippi to permit use of Mississippi’s “long-arm statute.” It further found that even if personal and subject matter jurisdiction were present, the case would still be dismissed because of a violation of an applicable Tennessee statute requiring a demand to be made prior to suit. The court never made any explicit findings as to Progressive Direct, having determined that Mountain Laurel was the company for which findings were needed. Hogrobrooks appeals.

DISCUSSION

¶ 9. Jurisdiction is a question of law which an appellate court is to examine de novo. McDaniel v. Ritter, 556 So.2d 303, 308 (Miss.1989). The trial judge found no subject matter jurisdiction and no personal jurisdiction. If the circuit judge was correct as to either determination, then dismissal was appropriate. Because of our resolution, we do not discuss a possible violation of a Tennessee statute that the court found to be a third basis on which to dismiss.

1. Subject Matter Jurisdiction

¶ 10. Subject matter jurisdiction is a question of the court’s authority “to entertain and proceed with a case.” Bullock v. Roadway Express, Inc., 548 So.2d 1306, 1308 (Miss.1989). Circuit courts have the “original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court ... Miss. Const. art. 6, § 156 (1890). The principal statute on which circuit court jurisdiction is based states that the court “shall have original jurisdiction in all actions when the principal of the amount in controversy exceeds two hundred dollars, and of all other actions and causes, matters and things arising under the constitution and laws of this state which are not exclusively cognizable in some other court....” Miss.Code Ann. § 9-7-81 (Rev.2002).

¶ 11. The statute refers to matters arising under this state’s law. We find no limitation in such words that the action must be founded on rights created by a Mississippi source. Enforcement of the rights of all citizens, no matter where the rights were created, are the obligation of each state’s courts.

[LJawful rights of the citizen, whether arising from a legitimate exercise of state or national power, unless excepted by express constitutional limitation or by valid legislation to that effect, are concurrently subject to be enforced in the courts of the state or nation when such rights come within in the general scope of the jurisdiction conferred upon such courts by the authority, state or nation, creating them. This principle was made the basis of the first Federal judiciary act, and has prevailed in theory and practice ever since as to rights of every character, whether derived from constitutional grant or legislative enactment, state or national. In fact, this theory and practice is but an expression of the principles underlying the Constitution, and which cause the governments and courts of both the nation and the several states not to be strange or foreign to each other in the broad sense of that word, but to be all courts of a common country, all within the orbit of their lawful authority being charged with the duty to safeguard and enforce the right of every citizen without reference to the particular exercise of governmental power from which the right may have arisen, if only the authority to enforce such right comes generally within the scope of the jurisdiction conferred by the government creating them.

Minneapolis & St. Louis R.R. Co. v. Bombolis, 241 U.S. 211, 221-22, 36 S.Ct. 595, 60 L.Ed. 961 (1916), cited in Penrod Drilling Co. v. Bounds, 433 So.2d 916, 930 n. 13 (Miss.1983) (Robertson, J., concurring).

¶ 12. In a broad sense, then, since Mississippi law must recognize the laws of other states, the enforcement of contracts and torts connected primarily with another state are “actions and causes, matters and things arising under the constitution and laws of this state ....” See Penrod, 433 So.2d at 930 n. 13. Were section 9-7-81 to be read only to permit actions founded on Mississippi statutes and common law, that would run afoul of a fundamental understanding of the relationships among the states. “The power of a State to determine the limits of the jurisdiction of its courts and the character of the controversies which shall be heard in them is, of course, subject to the restrictions imposed by the Federal Constitution. The privileges and immunities clause requires a state to accord to citizens of other states substantially the same right of access to its courts as it accords to its own citizens.” Howlett v. Rose, 496 U.S. 356, 382 n. 26, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990), quoting McKnett v. St. Louis & S.F. Ry. Co., 292 U.S. 230, 233, 54 S.Ct. 690, 78 L.Ed. 1227 (1934) (Brandeis, J., concurring). There is authority that the full faith and credit clause of the constitution requires that a state make its courts available for resolving foreign tort and contract disputes. Hughes v. Fetter, 841 U.S. 609, 611, 71 S.Ct. 980, 95 L.Ed. 1212 (1951) (a state “cannot escape this constitutional obligation to enforce the rights and duties validly created under the laws of other states by the simple device of removing jurisdiction from courts otherwise competent,” citing U.S. Const. art. IV, § 1).

¶ 13. Based on these considerations, we reject that either the constitution or the jurisdictional statute limit circuit court subject matter authority to cases having some nexus to Mississippi. However, even if subject matter jurisdiction is then joined by personal jurisdiction over what appears to be a totally foreign concern, a state court might still dismiss the suit on the basis that a much more convenient and appropriate forum exists in some other state. Mo. Pac. R.R. Co. v. Tircuit, 554 So.2d 878, 881-83 (Miss.1989). A Mississippi court should not “exercise jurisdiction if it is a seriously inconvenient forum for the trial of the action provided that a more appropriate forum is available to the plaintiff.” Metro. Life Ins. Co. v. Aetna Cas. & Sur. Co., 728 So.2d 573, 577 (Miss.1999), quoting Shewbrooks v. A.C. & S., Inc., 529 So.2d 557, 561 (Miss.1988). We do not have enough on this record to evaluate the proper forum issue.

¶ 14. The trial judge determined that since the insurance contract in issue was not to be performed in Mississippi, and that the alleged bad faith refusal to provide coverage also did not occur in this state, that there was no subject matter jurisdiction. Those considerations properly arise only under the “long-arm statute” relating to personal, not subject matter, jurisdiction. Miss.Code Ann. § 13-3-57 (Rev.2002) (nonresident who makes a contract with a resident to be performed at least in part in state, or who commits a tort in the state, becomes subject to state court jurisdiction).

¶ 15. We acknowledge that the twin issues of personal and subject matter jurisdiction are not always clearly distinguished. Nonetheless, there is no subject matter jurisdiction defect in a suit brought in circuit court that alleges that damages are owed for breach of contract or for a tort. That is true even if the parties and the contract have no connection to Mississippi. Pullman Palace-Car v. Lawrence, 74 Miss. 782, 22 So. 53, 55 (1897) (“we had supposed there was, in our own state, no ground left for dispute that in transitory actions, whether in tort or on contract, our courts were wide open to any suitor, resident or nonresident, against his adversary, whether resident or nonresident, whether a natural person or an artificial one, regardless of where the right of action occurred”), cited in S. Pac. Transp. Co. v. Fox, 609 So.2d 357, 362 (Miss.1992).

¶ 16. The issue of subject matter jurisdiction “turns on the type of case at issue. It refers to the authority of the court to address ‘general abstract question[s].’ ” James L. Robertson, Subject Matter Jurisdiction, in 1 Jeffrey Jackson (ed.), Mississippi Civil Procedure § 1:1 (2001), quoting Duvall v. Duvall., 224 Miss. 546, 552, 80 So.2d 752, 754 (1955). To use rather circular phrasing, the subject of the suit controls when determining if there is subject matter jurisdiction:

In reviewing a subject-matter jurisdiction challenge to the Constitution’s grant of authority, the Supreme Court looks at the type of case by examining the nature of the controversy and the relief sought.

Singing River Mall Co. v. Mark Fields, Inc., 599 So.2d 938, 941-42 (Miss.1992) (citations omitted).

¶ 17. Since the circuit court had authority to resolve the types of issues of contract and tort that were brought to it, and since it could in the abstract provide the relief that the plaintiff requested, there was subject matter jurisdiction.

2. Personal Jurisdiction

¶ 18. We now turn to whether the court could assert personal jurisdiction over the appellant. Progressive Direct was the named defendant, while Mountain Laurel Assurance Company was listed in the complaint as an additional entity to serve.

¶ 19. A foreign insurer, as a condition of receiving a license for doing business, must appoint the state Commissioner of Insurance as its agent for service of process. Miss.Code Ann. § 83-21-l(e) (Rev. 1999). In addition, a Mississippi resident must be named as an agent for service of process. Miss.Code Ann. § 83-5-11 (Rev. 1999). A foreign insurance company that has not been licensed in the state can be sued “upon any cause of action arising in this state under any contract” issued by the company, “in a court of competent jurisdiction in any county in which the plaintiff may reside, or in which the cause of action arose.” Miss.Code Ann. § 83-21-29 (Rev.1999).

¶20. Hogrobrooks made allegations in her response to the motion to dismiss about the corporate family of which Progressive Direct is a member. No evidence supports the claims, but these are the statements. Progressive Corporation (not Progressive Direct) is traded on the New York Stock Exchange and does business in all fifty states either directly or through affiliates or subsidiaries. Progressive Direct is a subsidiary of this corporation. Another affiliated company, Progressive Adjusting Company, Inc., is listed as a foreign business with the State of Mississippi.

¶ 21. Hogrobrooks is arguing that even though the contract at issue and the alleged tort involved a corporation that was not registered to do business in Mississippi, it is sufficient that a member of the same family was licensed to do business. We will examine the legal correctness of that position.

¶ 22. On a motion to dismiss for lack of personal jurisdictional, the plaintiff carries the burden of proof. Had an evidentiary hearing been held, the plaintiff would have been required to demonstrate jurisdiction by a preponderance of the evidence. 5A WRIGHT & MilleR, Federal Prac. & Proc. § 1351 (1990). There are no affidavits or other evidence in the appellate record submitted by the defendant to support that the company is not doing business in Mississippi. We adopt the approach utilized by our Mississippi federal cousins that when no pretrial evidentiary hearing is held, the plaintiff must only make a prima facie showing of personal jurisdiction:

The burden of establishing personal jurisdiction over a nonresident defendant under the long-arm statute rests with the plaintiff. The plaintiff must demonstrate both that the long-arm statute applies and that minimum contacts exist with the forum state sufficient to satisfy the constitutional requirement of due process. When a nonresident defendant moves to dismiss for lack of personal jurisdiction, plaintiffs need not make a full showing on the merits that jurisdiction is proper but must make a prima facie showing of the facts upon which in personam jurisdiction is predicated to avoid dismissal for lack of jurisdiction. In this regard, “the allegations of the complaint, except as controverted by the defendants’ affidavits, must be taken as true.”

Strong v. RG Indus., Inc., 691 F.Supp. 1017, 1018 (S.D.Miss.1988).

¶23. Therefore, Progressive Direct’s motion put the appellant to the test of presenting a prima facie case of personal jurisdiction. The allegations in the complaint, as supplemented by other pleadings, conceded that neither Progressive Direct nor Mountain Laurel was authorized to do business in Mississippi. There were assertions of a relationship between Progressive Direct and certain other corporations named Progressive, one of which was licensed to do business in the state. She asserted that Progressive Direct sells insurance to Mississippi residents, but the only alleged proof was that she was aware of one other policy. Hogrobrooks admits that there is no registered agent for the corporation in Mississippi. She served process in Ohio and served no one in Mississippi.

¶ 24. The trial court assumed that Mountain Laurel was the proper corporation, but there is no proof of why that is the case. That is unimportant, however, since no evidence exists that either Progressive Direct or Mountain Laurel carries on any activity in Mississippi beyond what we have set out here. Jurisdiction would have to arise from the presence in the state of one possibly related corporation, and from the fact that an accident occurred here for which coverage is owed by one of these corporations. Progressive Direct and Mountain Laurel each are in the same position as to the possibility of personal jurisdiction. If it existed as to either corporation, we would reverse.

¶25. With this as the evidence, we turn to what must be proved. The existence of personal jurisdiction is determined by examining both whether the defendant is amenable to service of process and whether the defendant “is within the substantive reach of a forum’s jurisdiction under applicable law.” DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1264 (5th Cir.1983), quoted in James v. McMullen, 733 So.2d 358, 359(¶ 3) (Miss.Ct.App.1999). Personal service was obtained over the defendant. Thus the contested issue of personal jurisdiction solely concerns whether this nonresident defendant has in some manner made itself subject to the jurisdiction of Mississippi courts on the cause of action that had been brought against it.

¶ 26. We look to the long-arm statute to determine if jurisdiction is proper.

Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the Constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident or nonresident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi and shall thereby be subjected to the jurisdiction of the courts of this state.

Miss.Code Ann. § 13-3-57 (Rev.2002).

¶ 27. We evaluate each element of the long-arm statute. It is uncontested that Progressive Direct and Mountain Laurel are not qualified under Mississippi law to conduct business in the state. Hogro-brooks’ claim that Progressive Direct nonetheless does business in Mississippi starts with the assertion that it is a subsidiary of The Progressive Corporation of Ohio. This parent company has another subsidiary, Progressive Adjusting Company. Progressive Adjusting Company is listed as a foreign business with the Secretary of State of Mississippi. Though these assertions are present, they are not supported by any evidence. However, since no evidentiary hearing was held and the defendant presented no affidavits, assertions alone might suffice to support a pri-ma facie case since they were not countered.

¶ 28. It is not the form of the assertion that is most problematic, but its substance. The fact that a parent company has a subsidiary which is listed with the Secretary of State is not enough to show that a different subsidiary of the same company is qualified to do business in Mississippi. In order for there to be jurisdiction, related corporations must disregard their separate legal character in the manner that they operate. Gammill v. Lincoln Life and Annuity Distrib., Inc., 200 F.Supp.2d 632, 634 (S.D.Miss.2001). If it can be established that the corporations do not recognize their separation, then the corporate veil may be pierced allowing one corporation to be subject to jurisdiction where it otherwise would not be. Id.

¶ 29. There was no effort in this case to allege or prove any factual basis for considering any other corporation to be the alter ego of Progressive Direct or of Mountain Laurel. See Gammill, 200 F.Supp.2d at 634-35 (ten factors for analyzing issue). We find that Hogrobrooks has not established that Progressive Direct is subject to jurisdiction in Mississippi even if Progressive Adjusting Company may be, and even if the latter is a related entity.

¶ 30. Another element of the long-arm statute is the entering of a contract with a Mississippi resident. Neither Progressive Direct nor Mountain Laurel made such a contract, nor is any part of the insurance contract in question to be performed in the state.

¶ 31. Still another manner by which the long-arm statute would reach a non-resident is if that entity committed a tort in Mississippi. The alleged tort by Progressive Direct was a bad faith refusal to pay to have her vehicle towed to Texas from Tennessee for repairs, and in other respects properly to make the repairs. The demand and the refusal occurred in Tennessee. The vehicle itself was apparently taken to Tennessee after the accident. No tort occurred in Mississippi that is the subject of the claim against Progressive Direct.

¶ 32. The only connection Mississippi has to this lawsuit is that the car accident occurred in Tunica County. The lawsuit is not about the accident. It concerns the insurance company’s subsequent refusal to enforce the repair obligation in the manner that the plaintiff argues is required. From these allegations, Hogrobrooks has yet to establish facts showing the defendant is subject to personal jurisdiction.

¶ 33. Finally, the issue under the long-arm statute of whether Progressive Direct or Mountain Laurel was “doing business” in the state is resolved by examining the following factors:

(1) the nonresident corporation must purposefully do some act or consummate a transaction in Mississippi; (2) the cause of action must either arise from or be connected with the act or transaction; and (3) the assumption of jurisdiction by Mississippi must not offend traditional notions of fair play and substantial justice.

Gross v. Chevrolet Country, Inc., 655 So.2d 878, 877 (Miss.1995). There was no act or transaction in the state involving Progressive or Mountain Laurel that is connected to the litigation. There was no purposeful act connected with this dispute that the defendant performed in this state.

¶ 34. Even beyond the failure of this claim to fit within the limits of the statute for obtaining personal jurisdiction over nonresidents, the jurisdiction asserted also fails to comport with the requirements of due process. The defendant must have sufficient minimum contacts with the state such that requiring that party to litigate in Mississippi does not “offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Cappaert v. Walker, 680 So.2d 831, 834 (Miss.1996).

¶ 35. When the litigation does not arise out of any actions by the defendant purposefully directed at Mississippi, and this suit does not, there must be evidence that the defendant’s contacts with the state were of a systematic and continuous nature. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). There has been no evidence of any contacts by Mountain Laurel or Progressive with the State of Mississippi, much less “systematic and continuous” ones.

¶36. We find these facts analogous to those in a United States Supreme Court precedent. World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The court found that the occurrence of an accident is not enough to allow the state of the accident to exercise in personam jurisdiction over a defendant who had no meaningful contacts or business in that state. Id. at 295, 100 S.Ct. 559. The suit was for products liability, was filed in Oklahoma, and asserted personal jurisdiction against a New York automobile wholesaler and retailer. The Supreme Court held that personal jurisdiction could not be based “on one, isolated occurrence and whatever inferences can be drawn therefrom: the fortuitous circumstance that a single Audi automobile, sold in New York to New York residents, happened to suffer an accident while passing through Oklahoma.” Id. at 314-15, 100 S.Ct. 559.

¶ 37. Therefore, were personal jurisdiction to be permitted over the company, traditional notions of fair play would be offended. For all these reasons, no personal jurisdiction existed.

2. Order Allowing Leroy Odom, Jr. an Opportunity to Inspect Hogro-brooks’ vehicle

¶ 38. Hogrobrooks finally claims that the circuit court erred when it ordered Hogrobrooks to allow Odom to inspect her automobile. Leroy Odom, Jr. was voluntarily dismissed from this lawsuit by Ho-grobrooks. Since Odom is no longer a party to this lawsuit, this issue is moot.

¶ 39. THE JUDGMENT OF THE CIRCUIT COURT OF TUNICA COUNTY IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ„ CONCUR.

      . "Transitory action” is a phrase that has fallen into disuse. It means an "action that is personal, i.e., brought against the person or the defendant — and brought in any county in which service of process upon the defendant is obtained.” Black's law Dict. 1499 (6th ed.1990). Conversely, a "local action” is one that can be brought only in a particular place. Id.


author: BRIDGES, J., SOUTHWICK, P.J.,

text:
    Thomas GOODMAN, Appellant, v. COAST MATERIALS COMPANY, W.C. Fore and Pat Fore a/k/a Pat Fore, III, Appellees.
    No. 2002-CA-01364-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2003.
    Michael W. Crosby, Gulfport, attorney for appellant.
    Britt R. Singletary, Gary Dale Thrash, Jackson, Glen K. Till, attorneys for appel-lee.
    Before KING, P.J., BRIDGES and IRVING, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. Thomas Goodman filed suit against Coast Materials Company, W.C. Fore and Pat Fore a/k/a Pat Fore, III, in the Circuit Court of Harrison County, Mississippi. The circuit court granted summary judgment in favor of the defendants. The court concluded that there was no genuine issue of material fact, thereby entitling the defendants to judgment as a matter of law. Goodman appeals to this Court from that judgment. We cite verbatim the issue on appeal.

CAN AN EMPLOYEE RECOVER COMMON LAW DAMAGES FROM HIS EMPLOYER OR CO-EMPLOYEE FOR AN INJURY OCCURRING OUT OF A PHYSICAL ATTACK BY THE OWNER/CO-EMPLOYEE IN THE COURSE AND SCOPE OF EMPLOYMENT FOR A COMPENSABLE INJURY, IF THE INJURED EMPLOYEE FILES FOR AND RECEIVES “SOME” COMPENSATION BY THE WORKERS’ COMPENSATION COMMISSION?

FACTS

¶2. While working at Coast Materials Company, Goodman and the owner, W.C. Fore, and Pat Fore, III, an employee and relative of W.C. Fore, got into a dispute over whether Goodman failed to show up for work on a certain day. A fistfight occurred between Goodman and W.C. Fore in which both were injured.

¶ 3. Based on the incident, Goodman filed a report with the Workers’ Compensation Commission on August 26,1992, and received benefits for his injuries. However, after receiving approximately seven thousand dollars of workers’ compensation benefits, Goodman then filed this common law tort suit against Coast Materials, W.C. Fore, and Pat Fore, III.

¶ 4. A summary judgement motion was filed by the defendants asserting that because Goodman has elected to obtain workers’ compensation benefits, an exclusive remedy, Goodman is, therefore, barred from bringing this common law tort. Summary judgment was granted finding no genuine issue of material fact.

STANDARD OF REVIEW

¶ 5. This Court, examining all the evi-dentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc, employs a de novo standard of review of a lower court’s grant or denial of a summary judgment. “The evidence must be viewed in the light most favorable to the party against whom the motion had been made. If, in this view, there is no genuine issue of material fact, and the moving party is entitled to judgement as a matter of law, summary judgment should forthwith be entered in his or her favor. Otherwise, the motion should be denied.” McMillan v. Rodriguez, 823 So.2d 1173, 1176-77 (¶ 9) (Miss.2002).

ANALYSIS

WHETHER THE APPELLANT’S CLAIMS AGAINST THE APPELLEES, ARISING OUT OF AN ALLEGED WORKPLACE ASSAULT AND BATTERY, ARE BARRED AND PREEMPTED BY THE EXCLUSIVE REMEDY PROVISION OF THE MISSISSIPPI WORKERS’ COMPENSATION ACT.

¶ 6. “The Workers’ Compensation Act (the “Act”) was enacted in 1948 in order to provide an assured recovery to injured employees and their dependants.” Mullins v. Biglane Operating Company, 778 F.2d 277, 278 (5th Cir.1985) (citing Stanley v. McLendon, 220 Miss. 192, 70 So.2d 323 (Miss.1954)). With the passage of the Act, “workers gained the right to make a claim for a job-related injury regardless of fault, but lost the right to sue his employer in a civil tort. Recently, however, in response to a perceived need and in accordance with a nationwide trend, the Mississippi Supreme Court has carved out a narrow exception to this exclusiveness of remedy provision.” Id.

¶ 7. In Miller v. McRae’s Inc., 444 So.2d 368, 369 (Miss.1984), the court held that an employee of McRae’s Department Store who was held and questioned by McRae’s security guards on a charge of shoplifting was not barred by the Act from asserting a cause of action against McRae’s for false imprisonment. The court agreed with the employee that the facts indicated a willful act, not an accidental injury, and that she was, therefore, not limited to a workers’ compensation recovery. Id. at 371. “It was never the intention of the Workers’ Compensation Act to bar an employee from pursuing a common law remedy for an injury that is the result of a willful and malicious act.” Id.

¶ 8. Until recently, Miller was said to have two different issues to be resolved:

Where exclusivity of remedy is involved one must ask not only whether the injury arose out of and in the course of employment, but also, whether the injury is compensable under the Workers’ Compensation Act.

Id. at 372. In context, it is clear that the court meant that the “injury” must be of a kind that is compensable. Some injuries such as humiliation, deprivation of personal liberty, and embarrassment were not compensable kind of injuries. Id. at 372 & n. 2.

¶ 9. In 2002, the supreme court abandoned part of Miller and rephrased the rest of the test. The court stated that Miller contained “a misinterpretation of the exclusivity test .... ” Newell v. Southern Jitney Jungle Co., 880 So.2d 621, 624(¶ 12) (Miss.2002). Miller had in one section improperly created a two-part test: “(1) the injury must have been caused by the willful act of another employee acting in the course of employment and in the furtherance of the employee’s business; [and/or] (2) the injury must be one that is not compensable under the act.” Id. at 624(¶ 13). The correct “inquiry set forth in Miller asks whether the injury is com-pensable under the act.” Id. at 625(¶ 14). Compensability is resolved by determining whether the injury is an accidental one as defined in section Tl — 3—3(b). Id. at 624(¶ 15). The statutory definition includes injuries caused by a willful act committed by someone who is a stranger to the employment relationship. From this it is concluded that injuries resulting from willful or intentional acts by fellow employees are not “accidental.” They, therefore, are not claims subject to the exclusive remedy provision of the Act.

¶ 10. After Newell there is still a recognized right to bring a civil suit against an employer for some intentional torts committed by co-employees. Newell did not reject the concept but only deleted part of the Miller explanation. The focus is now to be on whether there was an accidental injury under the Act. Miller and subsequent cases have held that intentional acts by those who are not strangers to the employment relationship may be the basis for such tort suits. Goodman has brought suit for what he alleges was an intentional assault by his co-employee. We find no argument under the present state of the law to dismiss this suit.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEES.

KING P.J., LEE, IRVING, MYERS, AND CHANDLER, JJ., CONCUR. SOUTHWICK, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY McMILLIN, C.J., AND GRIFFIS,. J. THOMAS, J., NOT PARTICIPATING.

SOUTHWICK, P.J.,

concurring:

¶ 12. The majority reverses because it finds that the Mississippi Workers’ Compensation Act was not the exclusive remedy for the plaintiff Goodman. I agree with this conclusion, but the caselaw that is being applied appears askew. There are difficulties that need to be addressed.

¶ 13. Almost twenty years ago, the Supreme Court held that when a co-employee commits an intentional tort resulting in injuries that are not compensable under the Workers’ Compensation Act, a civil suit may be brought. Miller v. McRae’s, Inc., 444 So.2d 368, 372 (Miss.1984). The law has since changed as I will discuss. In Miller, the injuries were claimed to have resulted from false imprisonment after the employee was detained by a company security officer. The Act defines “accidental injury” as including willful acts committed by a “stranger to the employer-employee relationship or fellow employee acting outside the scope and course of his employment.” Id. at 371.

[Accidental injury ... includes an injury caused by the willful act of a third person directed against an employee because of his employment while so employed and working on the job....

Miss.Code Ann. § 71-3-3(b) (Rev.2000). The court concluded from this that a willful act by a fellow employee, i.e., not a “third person,” was not an accidental injury. Miller, 444 So.2d at 371.

¶ 14. The majority reviews the alterations in Miller that arose as a result of Newell v. Southern Jitney Jungle Co., 830 So.2d 621, 624 (Miss.2002). The only exception to exclusivity, which the Newell Court then says is not an exception at all but just a matter of applying the definition of “injury,” is “an injury caused by a willful act of another employee acting in the course of employment.” Id. In the only Supreme Court decision to cite Newell, the Court again applied the two-part Miller test that Newell summarized but rejected. Hurdle v. Holloway, 848 So.2d 183, 185 (Miss.2003). This failure to apply Newell’s revisions was pointed out in the dissent, so it was not overlooked. Id. at 186, 187-88 (McRae, P.J., dissenting). However, the differences between Newell and Miller were not outcome-determinative in this most recent case. I find that Newell remains the present version of workers’ compensation exclusivity.

¶ 15. If the nature of the injuries is deleted as a consideration because of New-ell and despite Hurdle, we need to look at the caselaw to see what must be changed in our understanding of the law of exclusive remedy. Under Newell’s correction, the justification for Miller is still in the definition of “accidental injury.” What is implicit in the Miller approach is that the definition is a pregnant one. The premise for Miller is that the negative of the definition is implied, namely, that since willful acts of strangers to the employment relationship are covered, that must mean that intentional acts of individuals who are not strangers are free of the Act’s exclusivity.

¶ 16. Once the Court accepts that the negative is implied in the definition, another problem arises. By finding that an intentional act of someone who is not a stranger to the employment relationship takes the injury out of the workers’ compensation system, the Court may have unconsciously but unavoidably overruled the theory of the co-employee assault cases that were found to permit coverage under the Act. The court early in the workers’ compensation regime concluded that employee fights were inevitable, regrettable but compensable aspects of the workplace:

To the above stated contrasts in human nature we may add that some men are quarrelsome, contentious, bellicose and inclined to fight, while others are peaceful and not easily provoked to anger, and the very contact between employees who are required to work together subjects them to the hazards resulting from the pugnacious dispositions of their fellow employees in the same manner and to the same extent that they are exposed to the hazards of machines about which they are required to work.

Mutual Implement & Hardware Ins. Co. v. Pittman, 214 Miss. 823, 59 So.2d 547, 549-50 (1952). Citing numerous precedents from jurisdictions that had adopted workers’ compensation laws much earlier than had this state, the Court held that “under our compensation law the injured employee is entitled to compensation for injury resulting from such a hazard the same as he would be if he had been injured by the machine in proximity to which he was required to work, and that the injury from this hazard arose out of and in the course of [ ] employment.” Id., 59 So.2d at 556.

¶ 17. One dissent pointed out the inconsistency between Miller and such cases as Pittman. Blailock v. O’Bannon, 795 So.2d 533, 536, 537 (Miss.2001) (Smith, P.J., dissenting). Even so, the Supreme Court has never questioned the continuing validity of the Pittman approach.

¶ 18. One reason that this Pittman-line of cases has remained in place may be a policy one. If Pittman were overruled, then unless a plaintiff is able to show that the employer failed in some duty to prevent the assault, the employer would not be liable. The plaintiff would be left to rely as a source of recovery on the defendant employee’s personal assets or insurance. The Supreme Court found early in the compensation regime that if employment brought the plaintiff and defendant together, one of the hazards of that contact was an assault. Pittman, 59 So.2d at 556. The dissent aptly stated that the Court had “crossed the Rubicon.” Id. at 556 (Roberds, J., dissenting). The employer “is liable for every injury inflicted by one employee on a co-employee while working together at the place of work, even though the injury results from the personal malice on the part of the wrongdoer towards the injured employee.” Id.

¶ 19. One means to avoid finding that Miller overruled Pittman and its sister eases is to rely on the Miller Court’s reference to the fact that the damages from false imprisonment in Miller were not the kind recoverable under the Workers’ Compensation Act. The nature of injury has occasionally been a reason to permit a separate suit. See Blailock v. O’Bannon, 795 So.2d 533, 535-36 (Miss.2001); Davis v. Pioneer, 834 So.2d 739, 742-43 (Miss.Ct. App.2003). The injuries caused by a co-employee’s intentional acts are covered by the workers’ compensation system if they are the “right” kind of injuries and can be the subject of separate civil suits if they are the “wrong” kind of injuries. If New-ell is controlling, though, that is no longer a possible approach. If the nature of injury element of Miller is deleted from the permissible analysis, there is an even more pronounced conflict with precedents that have held that assaults between employees are compensable under the Act.

¶20. Dissenting Justice Roberds in Pittman found that the Rubicon had been crossed by requiring employer compensation for employee assaults on each other. What is unclear is whether Miller and its legitimate and other descendants have remained across the river or are attempting to return to the opposing ground. Allowing assaults to be included within the meaning of “accident” has been said to arise from viewing the event from the perspective of the claimant. Bradley & Thompson, Workers’ Compensation Law, 9 ENCYCLOPEDIA of Miss. Law § 76:36 (2002); KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss.1991). It is an untoward, unexpected, and perhaps “accidental” result of employment from the viewpoint of the injured employee whether the negligence or the intent of a co-employee was the cause of injury.

¶ 21. The Miller opinion is a challenging one. The Court explained its holding and swept too broadly in doing so when it concluded that the Workers’ Compensation Act was never intended “to bar an employee from pursuing a common law remedy for an injury that is the result of a willful and malicious act.” Id. at 371. To the contrary, the Court had just finished stating that a willful (and potentially malicious) act committed by a stranger to the employment relationship was subject to the exclusive remedy provision insofar as the employer’s liability was concerned. The issue for us is what other intentional acts may be.

¶22. What is obvious in the current state of the law is that there is still a recognized right to bring a civil suit against an employer for some intentional torts committed by co-employees. Newell did not reject the concept but only deleted part of the Miller explanation. Since the focus now is only on whether there was an accidental injury under the Act, and since Miller and subsequent cases have held that intentional acts by those who are not strangers to the employment relationship may be the basis for such tort suits, I find no argument under the present state of the law to dismiss this suit.

¶ 23. However, I suggest the need for continued review of these issues in light of Newell — which exposed some of the Miller fallacies — and of the complications that result in trying to piece together what is left. Perhaps the most fruitful approach, which would read the co-employee assault cases like Pittman as still being in effect, is to abandon the remnants of Miller outright. That would mean that the statutory reference to willful acts of strangers to the employment relationship is not the negative pregnant that Miller implicitly used to justify its holding. Accidents are viewed from the perspective of the employee. What is accidental depends not on the intent of the actor but on the impact on the claimant employee. The nature of the injury does not matter as Newell concluded. The Workers’ Compensation Act occupies the field for employee injuries that occur in the scope of employment, and compensation is found, or not, under the Act’s terms.

¶ 24. The source of Miller’s logical difficulties is that it depends entirely on the Act’s applicability to willful acts of strangers to create an exclusion for willful acts of co-employees. However, it is more reasonable to conclude that the statutory definition of injury needed to include willful acts of strangers because otherwise the employer might not be liable for medical costs and lost wages of employees who while in the scope of their employment were injured by strangers. The store clerk assaulted by a robber or the worker injured by a disgruntled former employee arguably would have no recourse against the employer under the workers’ compensation scheme absent this part of the statutory definition of “injury.” At the time that this language appeared in the original Act (1948 Miss. Laws, ch. 354, § 2(2)), the problems of independent intervening cause by those outside the employment relation assaulting a worker may have led to this clarifying of the employer’s liability. Without the statutory definition, the employee’s recovery for injury might have depended on the resources of the criminal and the worker’s personal insurance. Though the statutory language regarding willful acts of third persons was therefore useful, no additional language is needed to provide coverage for willful acts of fellow employees. Injuries from them would be subject to the exclusive remedy of the Act because of principles that were discussed in Pittman and which were understood, as I will detail, at the time that the Workers’ Compensation Act was adopted in 1948.

¶ 25. At the dawn of workers’ compensation in Mississippi, a legal expert explained that an assault by a co-employee was an “accident” that permitted coverage; when an “intentional violent assault perpetrated by another [who was not an employee] ... arose out of some incident of the employment, recovery is generally allowed.” Wex S. Malone, “Mississippi Act in Prospect,” XX Miss. L.J. 137,149 (1949). Pittman in 1952 made official what was only in prospect in this law journal article.

¶26. This interpretation removes the Miller conundrums. It abandons what is called a narrow exception to the exclusivity principle, Lewallen v. Slawson, 822 So.2d 236, 238 (Miss.2002), but one that has proven to be the source of broad confusion. Basically, if an injury occurred at the workplace or otherwise as a result of the worker’s employment, it is compensable under the Act. There would not be any exceptions, but there would be situations that would fall outside that description. For example, workers’ compensation coverage would not be available for assaults that occur at the workplace but are the result of causes unrelated to employment, such as a personal grievance between two people that begins outside the workplace but is continued while the employee is at work. Hawkins v. Treasure Bay Hotel & Casino, 813 So.2d 757, 759 (Miss.Ct.App.2002).

¶ 27. Miller is not the most carefully reasoned of precedents, distorts other caselaw with a better analytical pedigree such as Pittman, and will continue to sow confusion as long as it remains at work in this legal field. Still, I agree with the majority that Goodman sufficiently described grounds for a separate suit under the Miller understanding of workers’ compensation exclusivity.

Election of remedies

¶ 28. Until some additional clarification is brought to these issues, civil suits such as Goodman’s must be allowed to proceed unless something has occurred to forfeit the right to bring a separate action. Goodman already has been compensated by his employer for his medical expenses. He also received benefits based on about three months of lost wages while he was recuperating from his injuries. Goodman filed the required form reporting the injury. Miss.Code Ann. § 71-3-67 (Rev.2000). This “First Report of Injury” set out the same claim as in Goodman’s suit, namely, that he was assaulted by one of his co-employees. He never filed a “petition to controvert,” which is a filing on a disputed claim. Miss. WorkeRs’ Comp. Comm. Proc. R. 2 & 3, B 5,11 Form.

¶ 29. Whether a claimant would succeed in a separate civil suit under the Miller principles will usually be open to doubt. Does an employee who enters the workers’ compensation system forfeit any right to pursue the separate and contradictory remedy of a civil suit? Had the employee decided to pursue the civil suit first, would he still have the right to workers’ compensation benefits?

¶ 30. The Supreme Court has addressed the second scenario. When an employee receives a settlement to end a civil suit against his employer, that amount is a credit against the amount owed by the employer and carrier in a workers’ compensation proceeding. Sawyer v. Head Dependents of, 510 So.2d 472, 480 (Miss.1987). The Court said that there was no defect in a claimant’s seeking worker’s compensation benefits or a civil suit recovery when the employer has denied liability both under the Act and in tort. Sawyer concerned the appeal from a workers’ compensation judgment. The earlier settled tort suit, at least by the time of the Supreme Court opinion, appeared to have no basis in law. A tort suit should be dismissed “if the evidence shows that [the plaintiff] is entitled to worker’s compensation benefits arising out of the same occurrence.” Id. at 476. But the settlement of the tort suit did not prevent a claim for workers’ compensation benefits, primarily because of a statute that “[n]o agreement by an employee to waive his right to compensation under this law shall be valid.” Id. at 477, quoting Miss.Code Ann. § 71-3-43 (1972).

¶ 31. We have the reverse. There was no attempt to get the employee to waive his workers’ compensation rights. There also was no denial by the employer of the employee’s entitlements to benefits. Does the agreement to pay and then the actual payment of statutory benefits prevent a later civil suit? The Supreme Court implied but did not hold that estoppel from pursuing a civil suit would exist only if the employee had filed a petition to controvert at the Commission. Blailock, 795 So.2d at 536. What is necessary is that the employee seek to have the Commission resolve a contested claim. It is not sufficient that notice of injury is filed and benefits are paid. The record here reveals no petition to controvert but only a notice of injury, from which the employer without disputing the matter paid benefits. The right to bring this suit has not been forfeited.

McMILLIN, C.J., AND GRIFFIS, J., JOIN THIS SEPARATE WRITTEN OPINION.

      . The Supreme Court has at times made a distinction in this area of the law between willful and intentional acts. Stevens v. FMC Corp., 515 So.2d 928, 930 (Miss.1987). Other times the Court has combined the two and said that the statute provides an exception for “willful and intentional” acts. Blailock v. O’Bannon, 795 So.2d 533, 535 (Miss.2001). The distinction is not relevant here, and its nuances therefore need not be explored.


author: KING, P.J.,

text:
    Donna Duncan BROOKS, Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-01058-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2003.
    Gus Grable Sermos, Summit, attorney for appellant.
    Office of the Attorney General by John R. Henry, attorney for appellee.
    Before KING, P.J., BRIDGES and LEE, JJ.
   KING, P.J.,

for the Court.

¶ 1. A Walthall County Circuit Court jury convicted Donna Duncan Brooks on two counts of unlawful sale of a controlled substance within fifteen hundred feet of a church. One count was for the unlawful sale of oxycodone and the other was for the unlawful sale of hydromorphone. Brooks was sentenced to concurrent sixty year sentences on each count, enhanced pursuant to Mississippi Code Annotated Section 41-29-142 (Rev.2001). She was ordered to serve the first thirty years- on each count and to spend the remaining thirty years on each count on post-release supervision. The first five years of her post-release supervision was to be on reporting status and the remaining twenty-five years was to be on non-reporting status. Brooks was also ordered to pay restitution in the amount of $100 to the Walt-hall Tylertown Drug Task Force, $343 to Walthall County Justice Court, $187.47 for medical bills incurred while she was incarcerated, a $25,000 fine, court costs and attorney fees. Following the denial of her motion for JNOV, or in the alternative a new trial, Brooks perfected this appeal asserting as her only issue the claim that the trial court erred in failing to grant her motion for JNOV.

¶ 2. Finding no reversible error in the matter of her conviction this Court affirms; however, finding error in the matter of sentencing this Court reverses and remands on that issue.

FACTS

¶ 3. At trial, Brooks rested without putting on a defense. The facts as presented by the State indicate that Brooks’ arrest and indictment were the result of a “controlled buy” operation conducted by the Walthall Tylertown Drug Task Force. Confidential informant Kevin Goldman had agreed to assist local drug enforcement officials in exchange for leniency with regard to a criminal charge of conspiracy to sell oxycodone pending against him.

114. On the day of the buy, Brooks, a Louisiana resident, was lured to a location near a church in Walthall County, Mississippi, just inside the Mississippi/Louisiana state lines to conduct the sale transaction. Brooks was not acquainted with the confidential informant, Goldman; however, she was acquainted with an associate of Goldman’s named Brian Spears who owed Brooks money at the time of the buy. Goldman contacted Brooks pretending to be Brian Spears’ brother, Bradley Spears (who was also unknown to Brooks), and enticed Brooks to the location with a promise to pay Brian’s debt as well as purchase drugs.

¶5. At the pre-buy meeting, Goldman was searched for money and drugs then wired with a body transmitter and a digital cassette recorder. He was also provided with two one-hundred-dollar bills from the task force’s funds with which to purchase the drugs. The serial numbers from the bills were recorded by the task force agents who worked with Goldman on the buy. Goldman was driven to the buy location by one of the agents while two other agents followed in another vehicle equipped with a listening and recording devise. Brooks arrived shortly thereafter.

¶ 6. Goldman exited the vehicle he was in and approached Brooks who remained seated in her vehicle, a small pickup truck. She had brought along her young son who was also seated in the truck. Goldman asked about the amount of Spears’ debt. Brooks told him the debt was $55. He then asked to purchase three hydromor-phone pills at $30 each for a total of $90 and one oxycodone pill at $50 each, bringing the total amount owed to $195. Goldman gave Brooks the two one-hundred-dollar bills he had been given by the task force and in return received from Brooks a five dollar bill as change with the four pills wrapped inside the bill.

¶ 7. The controlled buy had originally called for the surveillance team to move in and make the arrest immediately following the sale; however, Brooks prepared to leave the scene before the team could arrive so the agent accompanying Goldman made the arrest.

¶ 8. At trial, the tape from the buy was played, all of the agents and Goldman testified as to what transpired, the money was identified, and a state crime lab analyst testified as to the chemical composition of the pills. Also, each of, the State’s witnesses, except the crime lab witness, testified that the buy took place in Walt-hall County within a few feet of the church. One of the agents who participated in the buy and another State’s witness who was employed by the 911 Commission to measure roads and assign addresses both testified to having taken measurements to verify that the buy took place within fifteen hundred feet of the church in Walthall County. All of the State’s witnesses and physical evidence stand uncon-tradicted in the record.

ANALYSIS

Did the Trial Court Err in Failing to Grant The Motion For Judgment Notwithstanding The Verdict?

¶ 9. The entirety of Brooks’ argument on appeal is that the State failed to prove beyond a reasonable doubt that Brooks knowingly or intentionally sold controlled substances to the informant, Kevin Goldman, while they were physically located in Walthall County,. Mississippi; therefore, the circuit court erred in failing to grant her motion for JNOV. The facts, as related previously, resoundingly reflect otherwise.

¶ 10. This Court’s standard of review on a claim of erroneous denial of a motion for JNOV is set forth in McClain v. State, 625 So.2d 774, 778 (Miss.1993) (citations omitted):

In appeals from an overruled motion for JNOV the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with ... guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence.... We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

f 11. On the basis of the undisputed evidence presented at trial, this Court finds that reasonable and fair-minded jurors could only have found Brooks guilty as charged; accordingly, the Court also finds that this assignment of error has no merit.

¶ 12. On the issue of Brooks’ sentencing; however, this Court must, on the basis of plain error, reverse and remand. Brooks was sentenced to thirty years of supervised probation which is in clear violation of Mississippi Code Annotated Section 47-7-34 (Rev.2000), which establishes that the maximum amount of time that the Mississippi Department of Corrections may supervise an offender on post-release supervision is five years. This Court remands this case to the trial court with instructions to correct that portion of the sentencing order providing for supervised probation of thirty years, to provide for a period of supervised probation not to exceed five years.

¶ 13. THE JUDGMENT OF THE WALTHALL COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF THE UNLAWFUL SALE OF A CONTROLLED SUBSTANCE WITHIN FIFTEEN HUNDRED FEET OF A CHURCH IS AFFIRMED. THE JUDGMENT OF SENTENCE IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WALTHALL COUNTY.

McMILLIN, C.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ„ CONCUR. SOUTHWICK, P.J., CONCURS IN RESULT ONLY.


text:
    Tami SAUCIER, Appellant, v. CITY OF POPLARVILLE, Appellee.
    No. 2002-KM-01873-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2003.

      Thomas M. Matthews, attorney for appellant.
    Nova A. Carroll, Picayune, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Tami Saucier was convicted of driving under the influence. She appeals arguing that there was no probable cause for the traffic stop nor for the administration of a breath test. She also argues that the evidence did not support that she was under the influence of alcohol. We find no error.

STATEMENT OF FACTS

¶ 2. On the night of November 80, 2001, Saucier was driving on Highway 58 near Poplarville, Mississippi. While on patrol, a Pearl River County sheriffs deputy began to follow her. He observed Saucier increase and decrease her speed and “bump” the centerline. She was driving between fifteen and twenty miles per hour in a thirty-five mile per hour zone. He followed her for about eight miles. As they entered Poplarville, Saucier went into the center lane and jerked her vehicle back into the right lane. The officer contacted the Poplarville Police Department for assistance.

¶ 3. A police officer responded and pulled his vehicle in between the sheriff deputy’s vehicle and that of Saucier. He followed her for perhaps three hundred yards. He observed Saucier cross the yellow line into the turn lane and then back into her lane. She was also driving rather slowly. The police officer then stopped Saucier. As he approached Saucier’s vehicle, he smelled alcohol coming from inside her vehicle. He then noticed that Saucier’s eyes were bloodshot and glassy. He asked her to exit her vehicle. The sheriffs deputy was also present and he saw Saucier sway. Saucier stated that she had been drinking wine earlier at a casino on the Gulf Coast.

¶ 4. Two field sobriety tests were conducted. Saucier did not successfully complete either, so she was asked to submit to an Intoxilizer exam for breath alcohol content. Saucier was transported to the Pearl River County Sheriffs Department for the test. She was unable to complete it. She was arrested and charged with careless driving and driving under the influence of intoxicating liquor. In the Poplarville Municipal Court, Saucier entered a nolo con-tendré plea. She then appealed her conviction to the Circuit Court of Pearl River County for a trial de novo. Both parties requested a trial without a jury. Saucier was found guilty of driving under the influence, first offense.

DISCUSSION

1. Probable cause for a traffic stop and for administering field sobriety test

¶ 5. Saucier claims that there was no probable cause for the police officer to conduct a traffic stop. The United States Supreme Court has stated that, as a general rule, “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). To know whether there was evidence of the offense of careless driving, we examine the statute on that crime:

Any person who drives any vehicle in a careless or imprudent manner, without due regard for the width, grade, curves, corner, traffic and use of the streets and highways and all other attendant circumstances is guilty of careless driving.

Miss.Code Ann. § 63-3-1213 (Rev.1996).

¶ 6. Repeatedly, the vehicle that Saucier was driving crossed over the center line. This is careless driving under the statute. She was driving without due regard for the width and use of the street. This was observed by two law enforcement officers. The officer’s observations were sufficient for him to conclude that the traffic violation of careless driving had occurred.

¶ 7. Saucier relies on a precedent that states that a driver allowing his vehicle one time to drift slightly across a lane marker was not an offense under Texas law. Hernandez v. State of Texas, 983 S.W.2d 867, 870 (Tex.Ct.App.1998). The driver was on a five lane highway, and he did not cross over into the lane for oncoming traffic. The court discussed the legislative history of the relevant Texas statute, and found that there was a violation only when a driver “fails to stay within its lane and such movement is not safe or is not made safely.” Id. at 871. The failure to prove the unsafe nature of the lane violation is what caused the court to find that no traffic offense had occurred.

¶ 8. We note factual distinctions. First, there was not a one-time and brief drifting across the painted stripe separating lanes as in Hernandez, but a multiple intrusion across the dividing stripe on the highway. The frequency of the failure to maintain the proper lane suggests a greater degree of risk and carelessness. Secondly, Hernandez drifted across the stripe dividing his lane from others going the same direction; Saucier crossed over the center-line into the lane for traffic going the opposite direction. A witness specifically stated that Saucier was drifting into the lane used by oncoming traffic. We do not find Hernandez persuasive as to the resolution of this appeal.

¶ 9. In a factually similar decision, this Court found that a driver who was seen several times permitting his vehicle to cross over into a turning lane (apparently a center lane usable by traffic in each direction) could be found guilty of careless driving. Guerrero v. State, 746 So.2d 940, 943 (Miss.Ct.App.1999).

¶ 10. There was probable cause to believe a traffic offense had been committed. Saucier was properly stopped for further police action.

¶ 11. Saucier also argues that even though she might properly have been stopped, there was not sufficient basis to believe that she was intoxicated. Consequently, she argues that the results of the field sobriety test should be suppressed.

¶ 12. Probable cause to administer a field sobriety test can be the basis of probable cause to arrest and administer a breath test. Young v. City of Brookhaven, 693 So.2d 1355, 1361 (Miss.1997). The record reflects that the officers smelled alcohol, that Saucier’s eyes were glassy and bloodshot, that she swayed, and that she could not adequately perform two field sobriety tests. Saucier admitted to drinking at a casino that night. From this, the officer concluded that Saucier was intoxicated. It was not clearly erroneous for the circuit court to conclude there was probable cause to administer the Intoxilizer exam. Saucier was unable to complete this test.

2. Proof of intoxication

¶ 13. Saucier asserts that there is no evidence indicating she was intoxicated. This is the statute that Saucier was found to have violated:

(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who
(a) is under the influence of intoxicating liquor.

Miss.Code Ann. § 63-11-30(l)(a) (Rev. 1996).

¶ 14. The circuit judge concluded Saucier was intoxicated based on the testimony of the police officer and the sheriffs deputy. This evidence demonstrated that Saucier was driving carelessly, smelled of alcohol, had glassy eyes, swayed, and could not complete two field sobriety tests.

¶ 15. Saucier states that the evidence should be found to be inadequate because of a precedent that rejected the sufficiency of the Horizontal Gaze Nystagmus test as proof of intoxication. Richbourg v. State, 744 So.2d 352, 354 (Miss.Ct.App.1999). That specific test, involving the ability of a person suspected of being intoxicated to follow with his eyes the movement of the officer’s hand or finger, is not what was used in this case.

An HGN test is conducted by asking the driver to “cover one eye and focus the other on an object — usually a pen — held by the officer at the driver’s eye level. As the officer moves the object gradually out of the driver’s field of vision he watches the driver’s eyeball to detect involuntary jerking. The officer then observes: “(1) the inability of each eye to track movement smoothly; (2) pronounced nystagmus at maximum deviation; and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point.”

Young v. City of Brookhaven, 693 So.2d 1355, 1359 (Miss.1997).

¶ 16. Saucier received a different test, commonly called a field sobriety test. Saucier was asked to put her feet together. She then was asked to close her eyes and tilt her head back, extending her arms. With her eyes still closed, Saucier was asked to touch the tip of her nose with the index finger, first of one hand and then of the other. She was then given what the officer called a “finger-count” test. It is unclear from the testimony whether other requests were made. The officer stated that she was unable to pass these tests of coordination. Such field sobriety tests have been distinguished from the HGN test. Edwards v. State, 795 So.2d 554, 562-63 (Miss.Ct.App.2001).

¶ 17. Besides just these tests, the officers testified about slurred speech, smell of alcohol, and glazed eyes. The absence of evidence from a successfully administered Intoxilizer test does not prevent proof of intoxication. The evidence available was sufficient for the circuit judge to conclude in fact that Saucier was intoxicated.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY OF CONVICTION OF DUI FIRST OFFENSE AND SENTENCE OF TWO DAYS IN THE PEARL RIVER COUNTY JAIL, SUSPENDED, AND FINE OF $500 IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ„ CONCUR.


text:
    Timothy LATTIMORE, Appellant, v. Emmitt SPARKMAN, Appellee.
    No. 2002-CA-01544-COA.
    Court of Appeals of Mississippi.
    Nov. 4, 2003.

      George T. Kelly, Greenville, attorney for appellant.
    Office of the Attorney General by Jane L. Mapp, attorney for appellee.
    Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Timothy Lattimore filed a petition in the Circuit Court of Sunflower County to have made what he considered to be a correction to his parole eligibility date. The circuit judge denied any relief. We find that the court properly interpreted the statute on parole. We affirm.

STATEMENT OF FACTS

¶ 2. In September 1991, Lattimore was convicted of armed robbery when he was sixteen years old. He was given a fifteen year sentence, which was suspended conditioned upon his successful completion of the Regimented Inmate Discipline program. Lattimore completed the program. A few months later while on supervised probation, Lattimore was charged and convicted of the sale of cocaine. His probation was revoked and his fifteen year sentence for armed robbery was imposed. On the new charges, Lattimore was sentenced to thirty years’ imprisonment for the sale of cocaine and five years for conspiracy. The sentences were to run concurrently with each other. However, these sentences were consecutive to the earlier fifteen year sentence.

¶ 3. While in prison, Lattimore received sentence computation sheets that indicated a parole eligibility date of April 15, 2002. He was later notified that this date had been changed to October 2004. Lattimore first contested this change within the prison system through the administrative remedies program. His request to change his parole eligibility date back to 2002 was denied. Lattimore then filed what he called a “Petition for Writ of Habeas Corpus and/or Other Relief’ in the Sunflower County Circuit Court.

¶ 4. A hearing was held on the petition. The assistant director of records at the Parchman Prison testified that there had been an error concerning the actual date of Lattimore’s imprisonment. She testified that Lattimore had mistakenly been given more credit for time served on probation than he should have received. She stated that this error was discovered when the prison updated its records and an audit was performed. The court denied any relief, and Lattimore appealed.

DISCUSSION

1. Jurisdiction

¶ 5. The State argues that this case should have been dismissed on the basis that the circuit court lacked jurisdiction. Lattimore first pursued relief under the internal prison grievance procedure, but then did not timely appeal. Miss.Code Ann. § 47-5-801-807 (Rev.2000). If the final result of the grievance procedure is unsatisfactory to the inmate, he has thirty days to seek judicial review. Miss.Code Ann. § 47-5-807 (Rev.2000). More than thirty days passed after the resolution of his administrative grievance before Latti-more filed his petition in the circuit court. The circuit court refused to dismiss, saying only that Lattimore “will not be held” to the time limit.

¶ 6. The appellate courts have previously been confronted with inmates who have sought judicial review of the length of their sentence and the proper date for parole. See, e.g., Hill v. State, 888 So.2d 994, 997-98 (¶ 11) (Miss.Ct.App.2002). In Hill we noted that there were precedents that allowed inmates to have judicial review of whether their sentences contained proper credits for earned time that would cause reductions in their sentences. Wilson v. Puckett, 721 So.2d 1110, 1111-12 (Miss. 1998); Williams v. Puckett, 624 So.2d 496, 497 (Miss.1993). These were brought as habeas corpus suits directly in circuit court. The Supreme Court did not discuss whether the administrative remedy program should have been utilized.

¶ 7. An administrative remedy is available for situations “arising from policies, conditions, or events within the Department of Corrections” that affect an inmate personally. Miss. Dep’t. CoRR. Admin. Remedy Program Procedures 1. Listed in the Department’s explanation of the program is the right to seek review of such matters as lost property claims, staff conduct, conditions of confinement, policy and procedure, incidents, reprisals for using this process, mail and packages; and classification (to include discipline). Id. Parole eligibility is not listed, but we do not suggest that it would be improper for an inmate to pursue a change to his parole eligibility date by using the internal grievance procedure. We find though, in light of the case law that we have briefly discussed and which was more thoroughly reviewed in Hill, that an inmate may contest matters such as this as an original action in circuit court.

2. Interpretation of statute on date of parole eligibility

¶ 8. Lattimore argues that the statute concerning parole eligibility has been incorrectly interpreted. The principal ambiguity is whether the statute requires that a person with a thirty year sentence such as Lattimore to serve at least ten years of that sentence before he is eligible for parole, or need only serve one-fourth of the sentence, which is seven and a half years. Here is the statute:

Every prisoner who has been convicted of any offense against the State of Mississippi, and is confined in the execution of a judgment of such conviction in the Mississippi State Penitentiary for a definite term or terms of one (1) year or over, or for the term of his or her natural life, whose record of conduct shows that such prisoner has observed the rules of the Penitentiary, and who has served not less than one-fourth (1/4) of the total of such term or terms for which such prisoner was sentenced, or, if sentenced to serve a term or terms of thirty (30) years or more, or, if sentenced for the term of the natural life of such prisoner, has served not less than ten (10) years of such life sentence, may be released on parole as hereinafter provided....

Miss.Code Ann. § 47-7-3(1) (Rev.2000).

¶ 9. The problem is obvious enough. In the tradition of statutes, this contains one long sentence with many dependent and independent clauses. The statute provides as the usual rule that an inmate serve one fourth of the sentence before parole eligibility. Then the statute provides two caveats: “or, if sentenced” to thirty years or more, “or, if sentenced” to a life term, and “has served not less than ten (10) years of such life term,” the inmate may be considered for parole. Both of these situations— a sentence of at least thirty years or a life sentence — are written as alternatives to what has been stated earlier in the statute Yet oddly, when the ten year minimum is stated, it literally applies only to “such fife term” -without any stated application to sentences of thirty years or more. From this, Lattimore argues that the one-fourth rule must apply.

¶ 10. The statute has the feel of one that has been amended and the pieced-together new version does not fit together seamlessly. We examined the early amendment history of the parole statute.

¶ 11. The earliest version of this statute was adopted in 1944. It provided that any inmate sentenced to a year or more in the state penitentiary, “who has served not less than one-third of the total of such term or terms for which such prisoner was sentenced, or, if sentenced for the term of the natural life of such prisoner, has served not less than ten years of such life sentence,” may be released on parole. 1944 Miss. Laws ch. 334, § 2. Therefore, the 1944 statute only provided two categories — an inmate had to serve one-third of a sentence of a specific term of years, and had to serve ten years of a life sentence.

¶ 12. Just two years later, the legislature decided that certain longer sentences needed to be treated differently. As in the present statute, three categories of sentences were discussed:

Every prisoner who ... is confined ... in the Mississippi state penitentiary, for a definite term, or terms, of one year or over ..., who has served not less than one-third of the total of such term ..., or, if sentenced for the term of the natural life of such prisoner, or if sentenced for a period of thirty years or more, and has served not less than ten years of such life sentence or ten years of such sentence of thirty years or more, may be released on parole....

1946 Miss. Laws ch. 486, § 2 (emphasis added). Here the legislature was clear even if wordy. An inmate was required to serve ten years of a life sentence or ten years of a sentence of thirty years or more before becoming eligible for parole.

¶ 13. Today’s ambiguity crept into the statute with the next amendment, which was in 1950. The statute withdrew parole eligibility from anyone who had been convicted three times of a felony and added a requirement that any sex offender first be examined by a psychiatrist to determine if he was “of a normal and sound mind.” 1950 Miss. Laws ch. 524, § 4. The language that concerns us was essentially unchanged, except it was shortened into the present confusion: a prisoner “who has served not less than one-third of the total of such term or terms ..., or, if sentenced to serve a term or terms of thirty years or more, or, if sentenced for the term of the natural life of such prisoner, has served not less than ten years of such life sentence, may be released on parole....” Id. Why the phrase “or ten years of such sentence of thirty years or more” was dropped is a mystery. It could have been an oversight as this cumbersome language was revised to include the new considerations about multiple felonies and sex crimes. It could have been a draftsman’s belief that the language was redundant, though it was not. However, if an effort was being made to make the one-third rule apply to those serving long sentences of a specific number of years when previously and conclusively the ten year minimum had applied, there was no language adopted to reflect such a change.

¶ 14. Before the 1950 amendment, someone with a sentence of thirty years or more clearly had to serve ten years before being eligible for parole. After the amendment, we find no reasonable manner to interpret the statute differently. The present statute requires serving one-fourth of sentences of less than thirty years, but the operative language otherwise is the same.

¶ 15. The statute is ambiguous. There are two categories of exceptions to the requirement of serving one-fourth of a sentence, but the statute explicitly gives a minimum length sentence prior to parole eligibility for only one of the two categories. Nonetheless, this review of the history of the statute is convincing evidence that ambiguity but not change occurred in 1950.

¶ 16. In addition, Parchman’s assistant director of records stated that during her lengthy career at the prison, serving ten years has been the minimum for sentences greater than thirty years. This is a sufficiently settled interpretation at the agency entrusted with applying this statute as to allow deference to be given to it. Miss. Gaming Comm’n v. Six Elec. Video Gambling Devices, 792 So.2d 321, 328-29 (Miss.Ct.App.2001).

¶ 17. The statute requires Lattimore to serve at least ten years of his thirty year sentence prior to being eligible for parole. We affirm the denial of any relief.

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.