author: DICKINSON, Justice, DIAZ, Justice,

text:
    Kenneth CLEVELAND, M.D., and Central Surgical Associates, PLLC v. John MANN and Mark Mann, his Sons, Beneficiaries of John D. Mann, Deceased.
    No. 2005-CA-00924-SCT.
    Supreme Court of Mississippi.
    Aug. 31, 2006.
    Rehearing Denied Nov. 30, 2006.

      Lorraine Walters Boykin, Whitman B. Johnson, Jackson, attorneys for appellants.
    W.O. Dillard, Jackson, attorney for ap-pellees.
   DICKINSON, Justice,

for the Court.

¶ 1. This is an appeal of a trial court’s order denying a motion to compel arbitration. For the reasons discussed herein, we reverse and remand for entry of an appropriate order consistent with this opinion, compelling arbitration.

BACKGROUND FACTS AND PROCEEDINGS

¶2. On September 17, 2002, John D. Mann underwent a total gastrectomy for stomach cancer. This surgery was performed by Dr. Kenneth Cleveland at Central Mississippi Medical Center (“CMMC”). Approximately nine months later, Mann again sought medical care from Dr. Cleveland for a hernia which developed in relation to Mann’s gastrecto-my.

¶ 3. During this appointment, Mann was presented with a Clinic-Physician-Patient Arbitration Agreement. The terms of the agreement are stated individually, with a space after each term for the patient to initial his understanding of that term. The agreement must be signed by both the patient and an authorized representative for Central Surgical Associates (“CSA”) and initialed by the doctor. Mann signed the agreement on June 18, 2003, which was after his gastrectomy but prior to the surgery to repair his hernia. The surgery to repair his hernia was scheduled for and performed on July 7, 2003, nineteen days after Mann signed the agreement. The next day, Dr. Cleveland performed another surgery to repair Mann’s bowel, which was punctured during the hernia repair. Following this third surgery, complications developed which required Mann to have a CT scan. This scan revealed Mann had liver cancer. On August 27, 2003, Mann died of metastic gastric cancer of the liver.

¶ 4. On April 16, 2004, John and Mark Mann (“plaintiffs”), wrongful death beneficiaries of Mann, brought a medical malpractice action against Dr. Cleveland, CSA, and CMMC. The complaint alleged Dr. Cleveland was negligent in the care and treatment of Mann during the surgical procedure and post-operative care, which took place at CMMC.

¶ 5. On May 19, 2004, Dr. Cleveland and CSA filed a Motion to Compel Arbitration and Stay Proceedings or Dismiss. The basis for this motion was the arbitration agreement executed between Dr. Cleveland, CSA, and Mann prior to Mann’s second surgery. Dr. Cleveland and CSA argued plaintiffs were bound by this agreement, as the agreement stated it was binding on Mann’s “heirs-at-law or personal representatives.”

¶ 6. In their Response to the Motion to Compel Arbitration, plaintiffs asserted that Mann did not enter into the agreement knowingly, voluntarily, and intelligently, and the agreement violated the Mississippi Arbitration Act. The response further claimed that if the agreement was not void, it nevertheless did not bind plaintiffs, as they were beneficiaries under the wrongful death statute, rather than “heirs” because “they did not inherit the cause of action because it did not exist until his wrongful death.”

¶ 7. On February 24, 2005, Hinds County Circuit Court Judge Tomie T. Green issued a Memorandum Opinion and Order Denying Motion to Compel Arbitration. Judge Green held that the agreement fell within the realm of adhesion and was unconscionable. Dr. Cleveland and CSA filed a timely notice of appeal pursuant to Tupelo Auto Sales, Ltd. v. Scott, 844 So.2d 1167, 1170 (Miss.2003) (holding an appeal may be taken from an order denying a motion to compel arbitration). The issues on appeal are as follows:

I. Whether the trial court erred in finding the arbitration agreement to be unenforceable.
II. WTiether the arbitration agreement is binding on Mann’s wrongful death beneficiaries.

STANDARD OF REVIEW

¶ 8. This appeal stems from the denial of a motion to compel arbitration. This Court engages in de novo review of motions to dismiss and motions to compel. Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 513 (Miss.2005). The Federal Arbitration Act provides that “arbitration agreements ‘shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’ ” Norwest Fin. Miss., Inc. v. McDonald, 905 So.2d 1187, 1192 (Miss.2005) (quoting 9 U.S.C. § 2). “Doubts as to the availability of arbitration must be resolved in favor of arbitration.” IP Timberlands Operating Co. v. Demniss Corp., 726 So.2d 96, 107 (Miss.1998) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). Further, this Court has held that “[articles of agreement to arbitrate, and awards thereon are to be liberally construed so as to encourage the settlement of disputes and the presumption will be indulged in favor of the validity of arbitration proceedings.” Russell v. Performance Toyota, Inc., 826 So.2d 719, 722 (Miss.2002).

DISCUSSION

I. Whether the trial court erred in finding the arbitration agreement to be unenforceable.

¶ 9. The Federal Arbitration Act provides a two-pronged inquiry for determining the validity of a motion to compel arbitration. East Ford, Inc. v. Taylor, 826 So.2d 709, 713 (Miss.2002). The first prong requires a threshold finding that the agreement to be arbitrated has a nexus to interstate commerce, followed by a finding that the terms of the arbitration agreement require the parties to arbitrate the kind of dispute involved in the litigation. Id. The second prong addresses whether legal constraints external to the agreement, such as fraud, duress, or unconscion-ability, foreclose arbitration of the claims. Id. (citing Doctor’s Assocs. v. Casarotto, 517 U.S. 681, 686, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996)).

Interstate Commerce

¶ 10. In considering these two prongs, we turn to our decision in Vicksburg Partners, wherein this Court held, “[a] threshold determination which must be considered is whether the parties’ ... agreement falls within the provisions of § 2 of the Federal Arbitration Act.” 911 So.2d at 514. Section 2 of the Federal Arbitration Act states:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2.

¶ 11. The trial court stated the enforceability of an arbitration agreement between a medical provider and a patient was one of first impression for the court. Plaintiffs assert this agreement regarding a medical procedure cannot be construed as affecting interstate commerce. However, Dr. Cleveland and CSA argue the medical treatment provided to Mann affects interstate commerce under Vicksburg Partners, where this Court held, “singular agreements between . care facilities and care patients, when taken in the aggregate, affect interstate commerce.” 911 So.2d at 515. While the Vicksburg Partners opinion was handed down subsequent to the trial court’s ruling in this case, we have held that all judicial decisions apply retroactively unless the Court has specifically stated the ruling is prospective. See Miss. Transp. Comm’n v. Ronald Adams Contractor, Inc., 753 So.2d 1077, 1093 (Miss.2000); Morgan v. State, 703 So.2d 832, 839 (Miss.1997). Therefore, following our opinion in Vicksburg Partners, we conclude the economic activities of Dr. Cleveland and CSA affect interstate commerce, and the Federal Arbitration Act is applicable.

Arbitrability of Dispute

¶ 12. Plaintiffs further argue this dispute is not within the scope of the agreement because it was executed subsequent to Mann’s 2002 gastrectomy, and the 2003 hernia repair — the procedure for which the agreement was signed — was necessitated by the gastrectomy. Plaintiffs assert there was no agreement executed prior to the gastrectomy, so any injury arising therefrom is not subject to arbitration. Plaintiffs contend that if the agreement is found to be valid, this Court would be setting a “dangerous precedent,” as it would “allow the appellant to get a signature nine months after the first surgery to remove the stomach and use it to defend against puncturing the intestines in the second operation.”

IS. However, the agreement at issue states, “[pjatient agrees that in the event of any dispute, claim, or controversy arising out of or relating to the performance of medical services ... such dispute or controversy shall be submitted to JAMS .... ” (Emphasis added). The theory of the plaintiffs’ case is that the initial procedure led to the need for the hernia repair, and the hernia repair was negligently performed, leading to this lawsuit. Thus, the procedures are related by plaintiffs’ own theory of the case, and they are covered by the arbitration agreement.

External Legal Constraints — Uncon-scionability

¶ 14. The FAA’s second prong of analysis requires us to consider whether legal constraints external to the parties’ agreement foreclose arbitration of the claims. Plaintiffs assert this agreement was not signed by Mann knowingly, voluntarily and intelligently, and it is procedurally and substantively unconscionable. The trial court held “the agreement falls well within the realm of adhesion and unconscionability.”

¶ 15. This Court has defined un-conscionability as “ ‘an absence of meaningful choice on the part of one of the parties, together with contract terms which are unreasonably favorable to the other party.’” Taylor, 826 So.2d at 715 (quoting Bank of Ind., Nat’l Ass’n v. Holyfield, 476 F.Supp. 104, 109 (S.D.Miss.1979)). We recognize two types of uncon-seionability — -procedural and substantive:

Procedural unconscionability may be proved by showing a lack of knowledge, lack of voluntariness, inconspicuous print, the use of complex legalistic language, disparity in sophistication or bargaining power of the parties and/or a lack of opportunity to study the contract and inquire about the contract terms. Substantive unconscionability may be proven by showing the terms of the arbitration agreement to be oppressive.

Taylor, 826 So.2d at 714 (citations omitted). “Procedural unconscionability looks beyond the substantive terms which specifically define a contract and focuses on the circumstances surrounding a contract’s formation.” Vicksburg Partners, 911 So.2d at 517. In Entergy Mississippi Inc. v. Burdette Gin Co., 726 So.2d 1202, 1207 (Miss.1998), this Court divided procedural unconscionability into two general categories: lack of knowledge and lack of volun-tariness.

1. Procedural Unconscionability-Lack of Knowledge

¶ 16. “A lack of knowledge is demonstrated by a lack of understanding of the contract terms arising from inconspicuous print or the use of complex, legalistic language, disparity in sophistication of parties, and lack of opportunity to study the contract and inquire about contract terms.” Vicksburg Partners, 911 So.2d at 517 (citations omitted).

¶ 17. First, plaintiffs argue this agreement'was procedurally unconscionable because of a disparity in the sophistication of the parties due to Mann’s lack of education and inability to read or understand the agreement. However, this Court has held the inability to read does not render a person incapable of possessing adequate knowledge of the arbitration agreement he or she signed. See EquiFirst Corp. v. Jackson, 920 So.2d 458, 464 (Miss.2006).

¶ 18. Plaintiffs also assert the agreement was not properly explained to Mann, as the terms would have been difficult for him to understand. The agreement is a two-page document. In a bold, capitalized font larger than that of the rest of the document, the first page of the document states:

NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY CLAIM OF NEGLIGENCE OR MEDICAL MALPRACTICE DECIDED BY NEUTRAL BINDING ARBITRATION AND YOU ARE GIVING UP YOUR STATUTORY AND CONSTITUTIONAL RIGHT TO A JURY OR COURT TRIAL.

This first page is signed and dated by J. Loftin, as an authorized representative of CSA, signed by Mann, and initialed by Dr. Cleveland.

¶ 19. The second page of the agreement contains an explanation of each term found on the first page of the agreement. The top of this page states the patient is to initial next to each term after a member of the medical staff has explained that term to the patient. Mann’s initials appear next to each term. The bottom of the second page states, “I hereby confirm that I have explained the arbitration agreement to the Patient and the Patient has affirmed his or her understanding of that agreement by initialing or signing beside each of the foregoing provisions.” This statement is signed by Jennifer Loftin, an authorized representative for CSA, and is initialed by Dr. Cleveland.

¶ 20. In her affidavit, Barbara Temple-ton, Mann’s sister-in-law, stated she accompanied Mann to his appointment on June 18, 2003. She said Mann was handed a document and told by the receptionist to sign it and to ask Dr. Cleveland any questions he may have. She stated she went to the restroom for three to five minutes, and when she returned, Mann was ready to leave. Templeton testified that on the way home, Mann told her he asked Dr. Cleveland what the agreement meant, and Dr. Cleveland replied, “It’s so you won’t sue me.”

¶ 21. In his affidavit, Dr. Cleveland disputes these claims and maintains that Mann signed the agreement and initialed his understanding on the second page of the agreement before meeting with him. Dr. Cleveland stated that when he met with Mann, he asked Mann if he signed the agreement and understood it, and then he answered Mann’s questions regarding the agreement. Dr. Cleveland asserted in his affidavit that Mann’s signature and his initials “signified that he had read the contract, had its terms explained to him, fully understood its terms, and consented to the surgery.” Dr. Cleveland explained that his initials at the bottom of both pages of the agreement “confirmed that all of [Mann’s] questions regarding the arbitration agreement had been answered.”

¶22. This Court has not been furnished with an affidavit or any testimony from Jennifer Loftin, the authorized representative from CSA who signed the agreement stating she explained its terms to Mann. Plaintiffs argue that it “appears these may not be Mann’s initials” on the second page, and that J. Loftin who signed on the first page is not the same as Jennifer Loftin who signed on the second page. This contention was not asserted at the trial level. Additionally, plaintiffs offer no evidence to support this contention and cite no legal authority for this argument in their brief. Therefore, this argument merits no consideration by this Court. See Ferrell v. River City Roofing, Inc., 912 So.2d 448, 456 (Miss.2005) (failure to cite relevant authority obviates Court’s obligation to review issue); Tate v. State, 912 So.2d 919, 928 (Miss.2005) (appellate court will not review issues raised for the first time on appeal).

¶ 23. The language in this agreement is neither complex nor convoluted. The language stating Mann was giving up his right to a trial is boldly printed in all capital letters in a font larger than the font in the rest of the agreement. The second page of the agreement fully states and explains the individual terms of the agreement. Plaintiffs’ claim that Mann could not have understood the agreement is without merit, as this Court has held, “[a] person cannot avoid a written contract which he has entered into on the ground that he did not read it or have it read to him.... ” Cont’l Jewelry Co. v. Joseph, 140 Miss. 582, 585, 105 So. 639 (1925). Further, Mann signed the first page of the agreement and initialed beside each term on the second page, denoting his understanding of the terms. Mann’s initials on the second page of the agreement also indicate he was provided an opportunity to inquire about the agreement’s terms. Plaintiffs may not escape the agreement by simply stating Mann did not read the agreement or have it read to him or understand its terms.

¶ 24. Plaintiffs further claim the agreement was procedurally unconscionable because Mann did not have the opportunity to study the contract. They assert Mann was not provided with a copy of the contract to take home, and the original agreement was not furnished to the trial court. However, plaintiffs did not present these arguments to the trial court, and they have not provided any evidence or legal authority for support. Therefore, this Court is not obligated to consider the issue of whether Mann was furnished with a copy of the agreement. See Ferrell, 912 So.2d at 456; Tate, 912 So.2d at 928.

2. Procedural Unconscionability-Lack of Voluntariness

¶ 25. A contract of adhesion is an agreement “drafted unilaterally by the dominant party and then presented on a ‘take-it-or-leave-it’ basis to the weaker party who has no real opportunity to bargain about its terms.” Taylor, 826 So.2d at 716 (citations omitted). Such contracts are usually pre-printed and contain provisions in extremely small print. Id.

A lack of voluntariness is demonstrated in contracts of adhesion when there is a great imbalance in the parties’ relative bargaining power, the stronger party’s terms are unnegotiable, and the weaker party is prevented by market factors, timing or other pressures from being able to contract with another party on more favorable terms or to refrain from contracting at all.

Id. at 716 (citations omitted).

¶ 26. This agreement was prepared for Dr. Cleveland and CSA by the Phelps Dunbar, LLP, law firm. The agreement appears on a printed form but does not contain any small print. However, the parties dispute whether the agreement was presented on a “take it or leave it” basis. Plaintiffs assert Mann was in a great deal of pain during the June 18 visit to Dr. Cleveland’s office. Templeton also stated in her affidavit that during the visit, Mann was in pain and under stress because of the hernia. On the other hand, Dr. Cleveland stated Mann was not under a heavy burden of pain or stress at the time of signing.

¶ 27. The claim of a lack of voluntariness fails for several reasons. First, Mann initialed on the second page of the agreement next to the term stating, “[p]atient is not in need of emergency care or under immediate stress.” Second, the agreement provides for rescission within fifteen days of signing the agreement, and Mann had nineteen days before his surgery. Additionally, the agreement states, “[b]efore signing the Agreement the Patient may make written changes in the Arbitration Agreement if they so desire and present these to the Clinic for approval.” While the trial court held it did not seem reasonable or practical for Mann to have secured legal advice in light of his pressing medical condition, Mann’s surgery was not scheduled until nineteen days after he executed the agreement, so Mann did not have “to choose between forever waiving available remedies in a judicial forum, or forgoing necessary medical treatment....” Vicksburg Partners, 911 So.2d at 525. For all of these reasons, we conclude the agreement was not procedurally unconscionable.

3. Substantive Unconscionability

¶ 28. Plaintiffs argue the agreement was substantively unconscionable due to Dr. Cleveland’s and CSA’s right to choose the arbitration association and the patient’s right to appeal only in limited circumstances. At the trial level, plaintiffs did not assert as substantively unconscionable the patient’s limited right to appeal. They also failed to provide any argument or legal authority to support this assertion in their brief to this Court. Therefore, this Court is under no duty to consider this argument. See Ferrell, 912 So.2d at 456; Tate, 912 So.2d at 928.

¶ 29. Notwithstanding the procedural bar, this claim further fails on its merits. “Substantive unconscionability may be found when the terms of the contract are of such an oppressive character as to be unconscionable.” Russell, 826 So.2d at 725. This Court has held, “[substantive unconscionability is present when there is a one-sided agreement whereby one party is deprived of all the benefits of the agreement or left without a remedy for another party’s nonperformance or breach.” Vicksburg Partners, 911 So.2d at 521.

¶ 30. The portion of the agreement regarding CSA’s choice of an arbitration association states, “[a]rbitration will be performed by JAMS. This is a national association of neutral arbitrators. They don’t work for Physician or for the Patient. The Clinic will pay the costs, except for the first $125.00, and each side will pay for their own attorneys and other costs.” Mann initialed next to the explanation of this term of the agreement. However, plaintiffs argue Mann could not have known what JAMS was, and it was unconscionable that Dr. Cleveland and CSA chose the arbitration association who would hear the dispute.

¶ 31. In Vicksburg Partners, this Court looked to examples cited by the Tennessee Supreme Court of “oppressive” arbitration agreements. In Buraczynski v. Eyring, 919 S.W.2d 314, 320-21 (Tenn.1996), the Tennessee Supreme Court cited Beynon v. Garden Grove Medical Group, 100 Cal.App.3d 698, 161 Cal.Rptr. 146, 150 (1980), in which the court found an agreement oppressive where a health care provider required arbitration take place before a panel of three physicians. Vicksburg Partners, 911 So.2d at 521. The Tennessee Court further cited Broemmer v. Abortion Services of Phoenix, Ltd., 173 Ariz. 148, 840 P.2d 1013, 1016 (1992), in which the Arizona Supreme Court held unconscionable an agreement drafted by an abortion services clinic in which arbitration had to take place in front of physicians specializing in obstetrics and gynecology. Vicksburg Partners, 911 So.2d at 521.

¶ 32. This Court has held, “[wjhile unconscionably oppressive terms can be facially invalid, a per se finding of substantive unconscionability is strictly applicable only to a provision that by its very language significantly alters the legal rights of the parties involved and severely abridges the damages which they may obtain.” Id. The agreement at issue provides Mann with a fair opportunity and a proper forum in which to dispute his claims. It does not limit Mann’s damages, Mann’s legal rights, or Dr.. Cleveland’s and CSA’s liability. The agreement further provides for arbitration by a neutral association in the business of providing neutral arbitrators. For these reasons, we conclude the agreement at issue is not substantively unconscionable.

¶ 33. We find the agreement is neither procedurally nor substantively unconscionable. Therefore, the trial court erred in denying the Motion to Compel Arbitration.

II. Whether the arbitration agreement is binding on Mann’s wrongful death beneficiaries.

¶ 34. Plaintiffs assert the agreement is not binding on their claim, as it was not signed by them or by anyone with authority to sign on their behalf. However, the agreement expressly states it applies to “any dispute ... between Patient (whether a minor or an adult) or the heirs-at-law or personal representative of Patient, as the ease may be, and the Clinic, PLLC and each Physician individually....”

¶ 35. In Terminix International, Inc. v. Rice, 904 So.2d 1051, 1058 (Miss.2004), this Court adopted the Fifth Circuit’s holding in Washington Mutual Finance Group, LLC v. Bailey, 364 F.3d 260, 266 (5th Cir.2004), that the plaintiff was bound by an arbitration agreement signed by her husband, although not by her. “ ‘It does not follow ... that under the [Federal Arbitration] Act an obligation to arbitrate attaches only to one who has personally signed the written arbitration provision. [We have made] clear that a nonsignatory party may be bound to an arbitration agreement if so dictated by the ordinary principles of contract and agency.’ ” Terminix, 904 So.2d at 1058 (quoting Washington Mutual, 364 F.3d at 266).

¶ 36. Further, this Court held in Smith Barney, Inc. v. Henry, 775 So.2d 722, 726 (Miss.2001), “[t]he death of a party to an agreement to arbitrate future disputes does not invalidate the agreement.” The agreement in Smith Barney plainly stated it was binding on heirs, successors, and administrators, as does the agreement at issue. Id. at 727. This Court upheld the agreement in Smith Barney, concluding, “[according to the terms of the agreement, [plaintiff] is not required to be a signatory in order to be bound by the arbitration clause. As a successor of [the deceased], [plaintiff] is covered by the arbitration clause of the client agreements.” Id. at 727.

¶ 37. The dissent takes a contrary view, which it rests upon several false premises. First, the dissent says a wrongful death action belongs solely to the heirs of the deceased. This premise, of course, is completely contrary to the express language of our wrongful death statute, which provides that, in a wrongful death suit, the plaintiff must pursue “all the damages of every kind to the decedent and all damages to every kind to any and all parties interested in the suit.” Miss.Code Ann. § 11-7-13 (Rev.2004). The parties “interested in the suit” are not limited to the wrongful death beneficiaries, but could include the estate of the decedent, an insurance company exercising its right of subrogation, and any other parties claiming a right of recovery.

¶ 38. The dissent is also incorrect in stating that wrongful death is different from other torts because it cannot arise until after death. Wrongful death is not a tort, but rather a cause of action based upon an underlying tort that must have been committed against the decedent, resulting in the decedent’s death. Id.

¶ 39. Finally, and perhaps most significantly, the dissent misunderstands what is required under Section 11-7-13 to justify a wrongful death claim. Under the statute, a wrongful death claim is one the decedent must have been able to bring had death not ensued. The statute opens with the following mandate:

Whenever the death of any person ... shall be caused by any real, wrongful or negligent act or omission, ... as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof, ... the person ... that would have been liable if death had not ensued, ... shall be liable for damages....

Miss.Code Ann. § 11-7-13.

¶ 40. Based on the clear language of the statute, a wrongful death beneficiary is only allowed to bring claims that the decedent could have brought if the decedent had survived. Since the beneficiaries may only bring claims the decedent could have brought had the decedent survived, logic requires us to conclude that the converse is true, that is, the decedents may NOT bring claims the decedent could not have brought, had the decedent survived. Thus, plaintiffs in this case may not bring claims Mann could not have brought himself. This same reasoning was applied unanimously by this Court in Jenkins v. Pensacola Health Trust, 933 So.2d 923, 926 (Miss.2006), where we held that the beneficiaries could not bring a claim for wrongful death where the statute of limitations had expired and would have prevented the decedent from bringing the claim herself. Id.

¶41. Because Mann agreed to arbitrate, he could not have brought this claim for medical malpractice even if death had not ensued. He would have been required to submit his claim to arbitration. Therefore, since Mann could not have brought this claim, neither can plaintiffs.

¶ 42. Although the dissent skillfully attempts to support its view by citing cases from other jurisdictions, we are not troubled by the authorities cited. While it is true that a few jurisdictions take a contrary view, our holding today fully comports with Mississippi law and the law of many other jurisdictions. See Briarcliff Nursing Home, Inc. v. Turcotte, 894 So.2d 661, 664 (Ala.2004) (Alabama Supreme Court held that a wrongful death action was covered by the decedent’s agreement to arbitrate); Herbert v. Superior Court, 169 Cal.App.3d 718, 727, 215 Cal.Rptr. 477 (1985) (wrongful death suit by non-signatories of the arbitration agreement was covered by the agreement); Allen v. Pacheco, 71 P.3d 375, 379 (Colo.2003) (Colorado Supreme Court held that an arbitration agreement applied to wrongful death claims). We are presented with no compelling reason to discard our own precedent and adopt the reasoning advanced by a handful of foreign courts of appeals.

¶ 43. In its opinion and order, the trial court held that in light of this Court’s decision in Smith Barney, plaintiffs were bound by the agreement. We agree with this holding of the trial court.

CONCLUSION

¶ 44. As to Issue I, we find the agreement is valid under the two prong test enumerated by this Court in Taylor. The agreement unambiguously provides that the method of dispute resolution is arbitration, and the terms of the agreement are fair and do not impermissibly limit the rights of the patient. Therefore, we hold the trial court erred in denying the Motion to Compel Arbitration.

¶ 45. As to Issue II, this Court made clear in its holdings in Terminix and Smith Barney that heirs-at-law may be bound by arbitration agreements to which they were not signatories. Therefore, the trial court did not err in holding that plaintiffs are bound by the agreement executed by Mann.

¶ 46. For these reasons, we reverse the trial court’s judgment denying the motion to compel arbitration, and we remand this case to the trial court with instructions that it enter an appropriate order, consistent with this opinion, compelling the parties to submit their dispute to arbitration.

¶ 47. REVERSED AND REMANDED.

SMITH, C.J., WALLER AND COBB, P.JJ., AND CARLSON, J., CONCUR. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY EASLEY AND GRAVES, JJ.; RANDOLPH, J., JOINS IN PART.

DIAZ, Justice,

Dissenting.

¶ 48. With respect to my colleagues in the majority, I am compelled to dissent. The majority defies logic and the basic principles of contract law by holding that parties to a contract can bind the cause of action belonging to a third party — a cause of action that does not yet exist and which does not arise from the contract. A creature of statute, the wrongful death action belongs solely to the heirs of the deceased and those who might stand in place of the decedent.

I. Wrongful Death.

¶ 49. The majority finds that the arbitration agreement is binding on the heirs of John D. Mann. For this proposition, they only cite two cases, neither of which involve wrongful death. The case of Smith Barney, Inc. v. Henry is relied upon heavily; however, that case involved a lawsuit for the breach of fiduciary duty, negligence, and conspiracy, not wrongful death. 775 So.2d 722, 724 (Miss.2001).

¶ 50. Also cited for support is Terminix Intern., Inc. v. Rice, where a plaintiff made the argument that she was not bound by an arbitration agreement signed by her husband; this case also did not involve wrongful death. 904 So.2d 1051, 1057-58 (Miss.2004).

¶ 51. The analysis in the majority opinion simply does not address the most important facet of wrongful death: wrongful death is different from other torts because it cannot arise until after death. “Wrongful death is a separate and distinct cause of action, which can be brought only by the survivors of the deceased.” Gentry v. Wallace, 606 So.2d 1117, 1119 (Miss.1992) (emphasis added), overruled on other grounds by Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923, 925-26 (Miss.2006). For “while a personal injury case enables an injured party to recover damages for the injuries he has sustained, a wrongful death action is intended to compensate the heirs of the deceased for losses stemming from the death of the injured party.” Id. at 1120. See also In re Estate of England, 846 So.2d 1060, 1066 (Miss.Ct.App.2003).

¶ 52. This clear precedent establishes logically that since a wrongful death action cannot arise until after the death of a party to an arbitration agreement, the heirs cannot be bound by an arbitration agreement, which by its nature is only binding for actions that could have been brought by the decedent. If we decide here today that wrongful death actions, which arise after the death of the party to arbitration, are covered by that agreement, what is not covered by this arbitration agreement? See Smith v. Steinkamp, 318 F.3d 775, 777 (7th Cir.2003).

¶ 53. Other courts have also determined that wrongful death actions are separate and distinct causes of action, and have refused to require arbitration by virtue of the common law or state statute. See Goliger v. AMS Props., Inc., 123 Cal.App.4th 374, 377, 19 Cal.Rptr.3d 819 (2004) (arbitration agreement did not bind daughter even when she signed as “responsible party,” as she was not signing away her personal right to a wrongful death action); Dream Maker Constr., Inc. v. Murrell, 268 Ga.App. 721, 603 S.E.2d 72, 72-73 (2004) (“the Georgia Arbitration Code was never intended by the General Assembly to encompass personal injury or wrongful death actions ... because the Act expressly excluded such subject matter from coverage,” examining O.C.G.A. § 9-9-2(e)(10), which prohibits “[a]ny agreement to arbitrate future claims arising out of personal bodily injury or wrongful death based on tort”); Finney v. Nat’l Healthcare Corp., 193 S.W.3d 393, 397 (Mo.Ct.App.2006) (refusing to compel daughter to arbitrate wrongful death claim in nursing home case); Campbell v. Callow, 876 S.W.2d 25, 26 (Mo.Ct.App.1994) (“A wrongful death claim does not belong to the deceased ... The right of action is neither a transmitted right nor a survival right, but is created and vested in the survivors at the moment of death”); In re Kepka, 178 S.W.3d 279, 294-95 (Tex.App.Houston 2005) (representative’s wrongful death action not bound by arbitration).

II. Standard of Review.

¶ 54. An agreement to waive one’s right to a jury trial impacts multiple portions of the Mississippi Constitution. The Bill of Rights of our state constitution guarantees that “[a]ll courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay.” Miss. Const, of 1890, art. 3, § 24 (emphasis added).

¶ 55. Further, “[n]o person shall be debarred from prosecuting or defending any civil cause for or against him or herself, before any tribunal in the state, by him or herself, or counsel, or both.” Miss. Const, of 1890, art. 3, § 25 (emphasis added). In all these matters, “[t]he right of trial by jury shall remain inviolate .... ” Miss. Const, of 1890, art. 3, § 31 (emphasis added).

¶ 56. The repetition of the word “shall” in our Constitution demonstrates that these rights were to remain inviolate under any circumstances. However, these critical facets of our state constitution are all supposedly abridged by the simple act of signing a contract. The judicial power of the state of Mississippi is vested in this Court by that same Constitution, and it is accordingly our duty as a court to safeguard the constitutional rights of the citizens of Mississippi. Miss. Const. of 1890, art. 6, §§ 144, 146.

¶ 57. In deference to the rights of the citizens of Mississippi and the language in our state constitution, I believe that any arbitration agreement, which by its nature purports to abridge constitutional rights, should be reviewed with a high level of scrutiny. Additionally, the circumstances surrounding the decision of the parties to enter into the arbitration agreement should also be examined when determining the validity of the arbitration agreement. These safeguards are needed because arbitration is not simply a choice of forum; it intimately affects a citizen’s constitutional rights.

¶ 58. As the learned trial judge noted, “[t]he average patient is usually not as familiar with arbitration ... as may be the medical provider ... who urges him to sign away his rights.” Out of concerns for the lack of bargaining power the patient might have, and of the fact that the agreement may be one-sided, the trial court “use[d] caution in its scrutiny of ... arbitration agreements, especially since the agreement is offered to the patient as a prerequisite to necessary medical treatment.” This “cautious” approach is warranted by the significance of the legal rights at stake.

¶ 59. The right to a jury of one’s peers and the right of access to the court system of the state of Mississippi is a fundamental right with which arbitration significantly interferes, and it should be reviewed accordingly. See Miss. Comm’n on Judicial Performance v. Wilkerson, 876 So.2d 1006, 1011 (Miss.2004) (restrictions on First Amendment-guaranteed speech are reviewed with strict scrutiny); Associated Press v. Bost, 656 So.2d 113, 117 (Miss.1995) (“Strict scrutiny review has also been applied when a statute infringes upon a fundamental right”); Doe v. Doe, 644 So.2d 1199, 1210 (Miss.1994) (parents’ right to raise children is fundamental and any deprivation is reviewed with strict scrutiny); Miss. H.S. Activities Ass’n, Inc. v. Coleman ex rel. Laymon, 631 So.2d 768, 774 (Miss.1994) (noting that the right to travel is fundamental and restrictions are reviewed with strict scrutiny). Arbitration continues to pose a threat to the constitutional rights of the citizens of Mississippi and must be scrutinized accordingly. I would apply a strict scrutiny standard in reviewing all arbitration agreements, regardless of whether the issues were raised at the trial court or by the parties.

¶ 60. For the foregoing reasons, I respectfully dissent.

EASLEY AND GRAVES, JJ., JOIN THIS OPINION. RANDOLPH, J., JOINS THIS OPINION IN PART.

      . Plaintiffs state in their brief that they, along with CMMC, believe the cause of Mann's death was sepsis due to the infection caused when his bowel was punctured during the hernia repair. Plaintiffs argue this is con-traiy to the cause of death Dr. Cleveland put in his medical records, which was cancer. The conflict regarding the cause of Mann’s death is not an issue for this Court to decide.

      . In determining the scope of transactions "involving commerce” under the Federal Arbitration Act, the United States Supreme Court has "concluded that the phrase 'involving commerce’ is to be interpreted broadly and [is] the functional equivalent of the phrase ‘affecting commerce,’ which signals Congress' intent to exercise its Commerce Clause powers to the fullest extent.” Vicksburg Partners, 911 So.2d at 514-15 (citing Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 273-74, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995)). Interestingly, the agreement provides, "[a]ll parties agree that their relationship affects interstate commerce and that this Agreement shall be governed by the Federal Arbitration Act.”

      3. "JAMS” stands for "Judicial Arbitration and Mediation Services,” and it is a company which provides alternative dispute resolution services.

      . In some states, wrongful death is a "derivative” action pursuant to statute See Ballard v. Southwest Detroit Hosp., 119 Mich.App. 814, 327 N.W.2d 370, 371 (1982). That is not the case in our state.

      . The waiver of a trial by jury via arbitration also collides with other portions of the Constitution of 1890, namely Sections 13 ("in all prosecutions for libel the truth may be given in evidence, and the jury shall determine the law and the facts under the direction of the court and 14 ("No person shall be deprived of life, liberty, or property except by due process of law").


source: Caselaw Access Project

author: CARLSON, Justice, DICKINSON, Justice,

license: Public Domain

text:
    MICROTEK MEDICAL, INC. v. 3M COMPANY.
    No. 2005-CA-01860-SCT.
    Supreme Court of Mississippi.
    Oct. 5, 2006.

      Brenda B. Bethany, Jackson, C. Michael Ellingburg, attorneys for appellant.
    Melody McAnally, W. Wayne Drinkwa-ter, Jr., Jackson, attorneys for appellee.
   CARLSON, Justice,

for the Court.

¶ 1. The 3M Company sued Microtek Medical, Inc. for indemnification of attorneys’ fees incurred by 3M in defending a personal injury suit in Pennsylvania. The Chancery Court of Lowndes County, Mississippi, granted summary judgment in favor of 3M and awarded 3M in excess of $223,000 in attorneys’ fees; however, the chancellor refused to award prejudgment interest in 3M’s favor. From this chancery court judgment, Microtek appeals the chancellor’s assessment of attorneys’ fees against it, and 3M cross-appeals the chancellor’s refusal to assess prejudgment interest against Microtek. Finding no error, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Microtek and 3M entered into a contract in May, 1997 wherein Microtek agreed to manufacture the ArthroSteri surgical drape for resale by 3M. 3M marketed the product as its own. The contract contained an indemnification clause which provided that Microtek would indemnify 3M for losses incurred due to any accident or injury sustained by a third party as a result of Microtek’s breach of warranty or negligence. Furthermore, the contract provided that Microtek would conduct all of the required safety inspections of the surgical drapes and warrant them for fitness. Microtek also agreed to purchase $5,000,000 in liability insurance to cover indemnification expenses of suits arising worldwide. Additionally, the contract contained a choice of law provision that Minnesota law would govern substantive issues.

¶ 3. Subsequently, Mary Catherine Chapley of Pennsylvania filed a personal injury suit against 3M, her doctor, and her hospital in the Court of Common Pleas of Philadelphia County, Pennsylvania, seeking damages for a nerve injury during her knee surgery that she claimed was caused by a defective surgical drape which Micro-tek manufactured. Microtek was not a party to the suit, which asserted claims of both negligence and strict liability against 3M. Upon being notified of the suit, 3M tendered the defense of the claim to Mi-crotek and Microtek’s insurer, claiming that the contract required Microtek to defend 3M in suits concerning the surgical drapes. Microtek and its insurer refused to defend 3M, so 3M retained counsel at its own expense to defend the Chapley case. The Pennsylvania trial court granted summary judgment in favor of 3M, which thus had the practical effect of a finding that Microtek’s product was not defective.

¶ 4. 3M then filed suit against Microtek in the Chancery Court of Lowndes County, Mississippi, for indemnification according to the contract. Since no damages were paid in Chapley inasmuch as summary judgment was granted in 3M’s favor, 3M demanded only that Microtek reimburse the attorneys’ fees incurred by 3M in its defense of the Chapley case, with the total amount of reimbursement requested being $223,031.09. The chancellor found that 3M was entitled to attorneys’ fees as a matter of law and granted summary judgment in favor of 3M. However, the chancellor declined to award 3M prejudgment interest, and he did not state a reason for his denial in the order. Microtek appeals the chancellor’s grant of summary judgment, and 3M cross-appeals the chancellor’s denial of prejudgment interest.

DISCUSSION

¶ 5. The parties stipulated in the contract that Minnesota law would control substantive issues. However, Mississippi law will control procedural issues. Zurich Am. Ins. Co. v. Goodwin, 920 So.2d 427, 433 (Miss.2006) (citing Ford v. State Farm, Ins. Co., 625 So.2d 792, 793 (Miss.1993)). See also Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954, 960 (Miss.1999). This Court reviews a grant or denial of summary judgment applying a de novo standard. Stuckey v. Provident Bank, 912 So.2d 859, 864 (Miss.2005); Burgess v. BankPlus, 830 So.2d 1223, 1227 (Miss.2002); Richardson v. Methodist Hosp., 807 So.2d 1244, 1246 (Miss.2002).

¶ 6. In considering the language of the contract between Microtek and 3M, we must decide whether 3M is entitled to indemnification from Microtek for attorneys’ fees incurred by 3M in its defense of the Pennsylvania lawsuit. If this Court decides that 3M is entitled to attorneys’ fees, we must then determine whether the amount of attorneys’ fees awarded was reasonable, and we must also decide whether 3M is entitled to prejudgment interest.

MICROTEK’S DIRECT APPEAL

I. WHETHER 3M IS ENTITLED TO INDEMNIFICATION FOR ATTORNEYS’ FEES

¶ 7. We first consider the issue of whether 3M is entitled to Microtek’s indemnification under the contract as a result of the attorneys’ fees incurred by 3M in defending the Pennsylvania lawsuit. The contract clause in question states:

Seller shall be responsible for and shall indemnify Buyer against all losses, claims, expenses, or damages which may result in any way from any accident, injury, or damage to either person or property or from death of any persons by reason of Seller’s breach of warranty described in Article 11 or any negligent act or omission on the part of Seller, its agent, employees, or subcontractors except to the extent that the accident, injury, damage, or death is due to negligence of Buyer.

¶ 8. Microtek argues that the plain language of the contract requires that Micro-tek be held liable for breach of warranty or negligence before it is responsible for indemnification; therefore, summary judgment does not trigger indemnification because there was no finding of wrongdoing on the part of Microtek. Specifically, Mi-crotek states that a judgment or settlement must be “by reason of’ Microtek’s breach of warranty or negligence.

¶ 9. Conversely, 3M argues that the plain language of the contract requires that Microtek is “responsible for” and must indemnify all “losses, claims, expenses, or damages ... by reason of [Mi-crotek’s] breach of warranty” or negligence. In other words, 3M argues that Microtek is required to defend 3M in any claim of breach of warranty or negligence resulting from the products themselves and not 3M’s own negligence. 3M further asserts that Microtek must indemnify 3M for any judgment or settlement and also reimburse 3M for any fees or expenses incurred.

1110. The parties agree that since summary judgment was granted, no damages were awarded in favor of the Pennsylvania plaintiff requiring indemnification by Mi-crotek. Therefore, the true issue on appeal is not whether Microtek had to indemnify damages, but instead, whether 3M is entitled to reimbursement for attorneys fees when the Pennsylvania summary judgment was granted in its favor. Stated differently, based on the language of the contract, this Court must decide whether the phrase “shall be responsible for” is synonymous with “defend.”

¶ 11. In considering Minnesota law, a contract is interpreted according to its plain and ordinary meaning. Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 67 (Minn.1979) (citing Employers Mut. Liab. Ins. Co. v. Eagles Lodge, 282 Minn. 477, 479, 165 N.W.2d 554, 556 (1969); Bass v. Ring, 215 Minn. 11, 15, 9 N.W.2d 234, 236 (1943)). Furthermore, the intent of the parties should be “ascertained ... in accordance with the obvious purpose of the contract ... as a whole.” Republic Nat’l Life Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 354 (Minn.1979) (citing Cement, Sand & Gravel Co. v. Agricultural Ins. Co., 225 Minn. 211, 216, 30 N.W.2d 341, 345 (1947)). When parties enter into contracts, they intend for every provision “to have some effect.” Therefore, “any interpretation which would render a provision meaningless should be avoided.” Indep. Sch. Dist. No. 877 v. Loberg Plumbing & Heating Co., 266 Minn. 426, 123 N.W.2d 793, 799-800 (1963); Casey v. Brotherhood, 197 Minn. 189, 266 N.W. 737 (1936); Commercial Union Assur. Co. Ltd. v. Foley Brothers, 141 Minn. 258, 169 N.W. 793 (1918).

¶ 12. We are not directed by the parties to any case on point in Minnesota or Mississippi which states that an indemnitee is entitled to attorneys fees upon the grant of summary judgment in its favor. The parties cite numerous Minnesota cases which are not wholly applicable to the case sub judice; however, these cases offer valuable guidance as we consider these critical issues.

¶ 13. In his order granting summary judgment, the Lowndes County chancellor made the following conclusions of law:

The rules governing requisites, validity and construction of contracts generally apply to indemnity contracts. Sorenson v. Safety Flate, Inc. 306 Minn. 300, 235 N.W.2d 848 (1975).
The intent of the parties whose contract is to be ascertained so as to give the contract a meaning in accordance with the obvious purpose of the contract. Republic Nat’l Life Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 354 (Minn.1979).
Indemnity language to be given a fair construction and will accomplish its stated purpose. Sorenson v. Safety Flate, Inc. 306 Minn. 300, 235 N.W.2d 848, 852 (1975).
The 1997 contract required Microtek to purchase liability insurance including products liability. An insurer has the duty to defend and a duty to indemnify. St. Paul Fire & Marine Ins. Co. v. Nat’l Chiropractic Mut. Ins. Co., 496 N.W.2d 411, 415 (Minn.Ct.App.1993).

The chancellor concluded:

Although an excellent argument in opposite was made by Microtek, the Court concludes that the 1997 contract was to protect 3M from the cost of expenses arising out of claims such as Ms. Chap-ley’s. Microtek and its insurer were offered the opportunity to defend the Chapley claim.

¶ 14. We agree with the chancellor. The plain language of the contract stated that Microtek was “responsible for ... all losses, claims, expenses, or damages ... by reason of [Microtek’s] breach of warranty ... or ... negligent act.” Based upon the plain language of the contract, and giving every part meaning as required by Minnesota law, we are firmly convinced that the phrase “responsible for” is synonymous with “defend” in order to avoid an interpretation that would render part of ■the contract meaningless. The chancellor ruled that the purpose of the contract, as a whole, was to hold 3M harmless in all claims of negligence and strict liability concerning the surgical drapes. We agree.

¶ 15. Microtek also requests this Court to reverse the chancellor’s grant of summary judgment because, as it cites in its brief, the chancellor confused an insurer’s duty to defend and indemnify with regular contractual principles. In other words, Microtek argues that the chancellor wrongly ruled that Microtek should act like an insurance company because it had entered into an indemnification agreement. It is obvious that Microtek misinterprets the chancellor’s order. Pursuant to the contract, Microtek was required to purchase liability insurance to cover any claims worldwide. 3M tendered defense of the claim in Chapley to both Microtek and its insurer. In his ruling the chancellor was obviously referring to his belief that Microtek’s insurer’s had a duty to defend 3M in Chapley.

¶ 16. Microtek also argues that 3M is equitably estopped from seeking indemnity in this case because 3M received summary judgment in its favor in Chapley, and thus there was no finding of liability for which Microtek was responsible. In relying on Koyot v. Cont. Ins. Co., 1980 U.S. Dist. LEXIS 15105 (D.Minn.1980), Microtek argues that it is entitled to the benefit of the Pennsylvania summary judgment in 3M’s favor and that this issue cannot be reliti-gated. However, the doctrine of equitable estoppel is wholly inapplicable to today’s case. See B.C. Rogers Poultry, Inc. v. Wedgeworth, 911 So.2d 483, 492-93 (Miss.2005); Rawls Springs Utility Dist. v. Novak, 765 So.2d 1288, 1292 (Miss.2000); Trosclair v. Miss. Dep’t of Transp., 757 So.2d 178, 181 (Miss.2000). The issue in today’s case is whether Microtek is liable for attorneys fees based on the language of the contract between Microtek and 3M. The issues in Chapley were negligence and strict liability.

¶ 17. Finally, Microtek argues that 3M was sued for its own negligence; therefore, under the specific contract language, Microtek cannot be held liable for 3M’s own negligence. The parties cite in their briefs Sorenson v. Safety Flate, Inc., 306 Minn. 300, 235 N.W.2d 848 (1975) and Farr v. Armstrong, 288 Minn. 83, 179 N.W.2d 64 (1970); however, both of these cases have been overruled where formerly applicable to the case sub judice. Where there is an indemnification agreement, “it is the parties’ intent which controls the propriety of attorney fees.” Mortgage Guar. Ins. Corp. v. Forsythe Appraisers, Inc., 1992 WL 77523 at *3, 1992 Minn.App. LEXIS 408, at *7 (Minn.Ct.App. Apr. 21, 1992); see also Tolbert v. Gerber Indus., Inc., 255 N.W.2d 362 (Minn.1977).

¶ 18. Microtek agreed to be responsible for the warranty and inspection of the ArthroSteri surgical drapes. The warranty clause of the contract between Microtek and 3M states in pertinent part:

In addition to any warranty implied by fact or law, [Microtek] expressly warrants all Product(s) are free from defects in design, materials, and workmanship; conform strictly to specifications and approved samples, if any; are fit and sufficient for the purpose intended; and are merchantable.

Furthermore, the inspection clause states in part:

[Microtek] acknowledges [3M] will not perform any regular inspection of Produces) upon receipt, but will rely on [Mi-crotek] to specifically meet the Product(s) specifications.

Thus, it is clear that the parties intended for Microtek to have sole control of and responsibility for the safety of the surgical drapes.

¶ 19. The plaintiff in Chapley asserted a myriad of allegations in her complaint. It is Microtek’s contention that if the plaintiff asserted even one allegation from which 3M might be independently responsible, then 3M had the duty to defend itself in the suit. However, a review of the allegations in the complaint causes us to conclude that all of the allegations would have been attributed to Microtek had it been a joint tortfeasor in Chapley.

¶ 20. Chapley’s negligence claims were:

1. Failing to properly design, manufacture, assemble, inspect and/or distribute the ArthroSteri surgical drape;
2. Failing to include with the surgical drape the appropriate warnings and/or instructions regarding the correct use of the drape, including, but not limited to, the proper placement of the drape to avoid neurovascular compromise and damages;
3. Failing to advise the operating room staff about the proper placement of the drape to avoid neurovascular compromise and damage;
4. Failing to disclose information it knew or should have known about problems with and/or defects in the Arth-roSteri surgical drape.
5. Failing to warn the Plaintiffs of the risk imposed by the use of the ArthroSt-eri surgical drape;
6. Negligence per se;
7. Res ipsa loquitur; and
8. Such other acts of negligence and carelessness as shall appear during the course of discovery.

¶ 21. Chapley’s strict liability claim includes the following:

1. The ArthroSteri surgical drape was defectively designed;
2. The ArthroSteri surgical drape was defectively manufactured;
3. The ArthroSteri surgical drape lacked an element to make it safe;
4. The ArthroSteri surgical drape lacked an adequate and appropriate warning;
5. The ArthroSteri surgical drape was manufactured and sold in an unreasonably dangerous condition; and
6. Such other defects as shall appear during the course of discovery.

¶ 22. The allegations are based on negligence and strict liability for the design, manufacture, assembly, inspection, and distribution of the ArthroSteri surgical drapes. 3M simply marketed the product using its name. 3M was the named party in Chapley because its name, not Micro-tek’s name, appears on the surgical drapes. Therefore, it is apparent that the allegations are not based on 3M’s own negligence, even though 3M was the party named in the suit rather than Microtek. Because the parties intended Microtek to be responsible for warranties and inspections of the surgical drapes, 3M should not be held liable because the allegations do not stem from 3M’s own negligence. Therefore, 3M did not have a duty to defend itself in this suit.

¶ 23. After applying Minnesota case law to the facts of today’s case, we find that the chancellor properly granted summary judgment in favor of 3M. This issue is thus without merit.

II. WHETHER THE AMOUNT OF ATTORNEYS’ FEES WAS REASONABLE

¶ 24. Although, pursuant to the contract between Microtek and 3M, we applied Minnesota law on the indemnification issue, we are not so bound by Minnesota law on the issue of the reasonableness of the attorneys’ fees awarded by the chancellor to 3M.

Regardless of the substantive law to be applied, Mississippi courts will apply their own procedural law. Ford v. State Farm Ins. Co., 625 So.2d 792, 793 (Miss.1993). However, few laws are classified as procedural. In addition to the Mississippi Rules of Civil Procedure, and Rules of Evidence, we have only found the definition of “procedural” to include statutes of limitations, awards of attorney’s fees and awards of prejudgment interest. Sentinel Indus. Contracting Corp. v. Kimmins Indus. Serv. Corp., 743 So.2d 954, 960 (Miss.1999) (finding awards of attorney’s fees and prejudgment interest procedural); Ford, 625 So.2d at 793-794 (finding statutes of limitations procedural).

Zurich, 920 So.2d at 433. Thus, finding this issue to be procedural, we will apply Mississippi law in determining the issue of the reasonableness of the amount of attorneys fees assessed against Microtek in favor of 3M. In this state, we review the issue of the reasonableness of the trial court’s award of attorneys fees applying an abuse of discretion standard. This Court will not disturb the finding of the trial court on such an issue unless it is manifestly wrong or exhibits a manifest abuse of discretion. Mabus v. Mabus, 910 So.2d 486, 488 (Miss.2005) (citing Mauck v. Columbus Hotel Co., 741 So.2d 259, 269 (Miss.1999); Bredemeier v. Jackson, 689 So.2d 770, 778 (Miss.1997)). In this context, the word “manifest” has been defined to mean “unmistakable, clear, plain, or indisputable.” Mosley v. Mosley, 784 So.2d 901, 904 (Miss.2001) (citing Black’s Law Dictionary 963 (6th ed.1990)); Turpin v. Turpin, 699 So.2d 560, 564 (Miss.1997) (quoting Magee v. Magee, 661 So.2d 1117, 1122 (Miss.1995)).

¶25. Microtek urges this Court to consider Rule 1.5(a) of the Mississippi Rules of Professional Conduct. The factors of Rule 1.5(a) are also known as the McKee factors. McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). Rule 1.5(a) states:

A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the location for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

Miss. R. Profl Conduct 1.5(a). In Bell-South v. Board of Supervisors, 912 So.2d 436 (Miss.2005), we stated that the trial judge could not make a “blanket endorsement” of attorneys fees. Id. at 447. On the other hand, we will not hesitate to affirm the chancellor’s award of attorneys’ fees, and its amount, when based on substantial credible evidence. Mabus, 910 So.2d at 492.

¶ 26. Microtek asks this Court to reverse the chancellor’s grant of attorneys’ fees because it believes that the amount is unreasonable. Further, Microtek believes that the chancellor made a “blanket endorsement” regarding the amount of attorneys fees requested. We disagree.

¶ 27. The chancellor applied Minnesota law in his grant of summary judgment, and the chancellor likewise applied Minnesota law in considering the award of attorneys’ fees. The chancellor stated in his order:

In determining the size of an attorney’s fee, this Court must consider the time and effort required, novelty or difficulty of the issues, skill and standing of the attorney, value of the interest involved, results secured at trial, loss of opportunity for other employment, taxed party’s ability to pay, customary charges for similar services, and certainty of payment. Jadwin v. Kasal, 318 N.W.2d 844 (Minn.1982).

Microtek argues that Mississippi law should apply to procedural issues, such as attorneys’ fees, and we agree. However, the factors relied upon by the chancellor, in citing Jadwin, a Minnesota case, are virtually identical to the McKee factors. Thus, the chancellor committed no error in relying upon the above enumerated factors in arriving at the appropriate amount of attorneys’ fees to be assessed against Mi-crotek and in favor of 3M.

¶ 28. Microtek claims that 3M produced no evidence to support the reasonableness of the attorney’s fees. However, the chancellor found otherwise in his order:

Offered in support of the claim for attorneys’ fees is the affidavit of Debra Dunne, the Pennsylvania attorney who successfully defended 3M. The affidavit includes as an Exhibit an itemization of the fees and expenses. The Exhibit is approximately an inch thick and is Exhibit 10 to Plaintiffs Motion for Summary Judgment.
Ms. Dunne’s time and effort are included as an exhibit. Ms. Dunne’s Motion for Summary Judgment and the exhibits in this case show the novelty and difficulty of the issues. The success of Ms. Dunne obviously shows her skill and standing as an attorney. Ms. Chapley’s alleged serious injuries show the value of the interest involved. Ms. Dunne was successful and as shown by the time spent on the case, she lost the opportunity for other employment. Her hourly rate is $240.00 per hour which is reasonable. She certainly would have been and was paid by 3M.

3M clearly provided evidence to the Chancery Court on the issue of the appropriate amount of attorneys fees to be awarded. It is thus obvious that, as opposed to making a “blanket endorsement” of any proposal as to the amount of attorneys fees to be awarded, the chancellor painstakingly addressed the relevant factors. Accordingly, for these reasons, we find the amount of the chancellor’s award of attorneys fees was based on substantial evidence and this action by the chancellor was not a manifest abuse of discretion. We find this issue to be without merit.

3M’S CROSS-APPEAL

III. WHETHER THE CHANCELLOR ABUSED HIS DISCRETION BY NOT AWARDING 3M PREJUDGMENT INTEREST

¶ 29. In its cross-appeal 3M asserts that the chancellor abused his discretion by not awarding 3M prejudgment interest on the award of attorneys’ fees. Likewise, on this issue, we apply Mississippi law inasmuch as the issue of prejudgment interest is procedural and not substantive. Zurich, 920 So.2d at 433. See also Sentinel, 743 So.2d at 960. A judge’s decision on the issue of whether to grant prejudgment interest is discretionary and is thus reviewed by applying an abuse of discretion standard. Pub. Employees’ Ret. Sys. v. Freeman, 868 So.2d 327, 329 (Miss.2004). In Preferred Risk Mutual Ins. Co. v. Johnson, 730 So.2d 574 (Miss.1999), we held that “prejudgment interest may be allowed in cases where the amount due is liquidated when the claim is originally made or when the denial of a claim is frivolous or in bad faith.” Id. at 577 (citing Aetna Cas. & Sur. Co. v. Doleac Electric Co., 471 So.2d at 331) (emphasis added). “Prejudgment interest has been denied where there is a bona fide dispute as to the amount of damages as well as the responsibility for the liability therefor.” Grace v. Lititz Mut. Ins. Co., 257 So.2d 217, 225 (Miss.1972). “For prejudgment interest to be awarded, the party must make a proper demand for the interest in the pleadings, including the date that it was allegedly due.” Id.; see also Simpson v. State Farm Fire & Cas. Co., 564 So.2d 1374, 1380 (Miss.1990).

¶ 30. The trial judge no doubt has discretion to award prejudgment interest if (1) the amount of damages is fixed and (2) liability is undisputed. However, 3M directs us to a ease decided by the Court of Appeals, Estate of Baxter v. Shaw Associates, 797 So.2d 396, 403 (Miss.Ct.App.2001), and argues that prejudgment interest may be granted when damages are liquidated, even if they are disputed. The Court of Appeals in Baxter cited Simpson v. State Farm Fire & Casualty Co., 564 So.2d 1374 (Miss.1990). In Simpson, this Court quoted from a “Hurricane Camille” case, which stated:

We are of the opinion that where as in this ease there is a justifiable dispute as to the amount of the loss, the insured is not entitled to interest until the amount of the claim has been made certain or liquidated. However, we can envision cases where, in the discretion of the trial court interest should be allowed although the amount of the loss is in dispute and for this reason we do not foreclose the allowance of interest in every case where the claim is unliquidat-ed.

Id. at 1381 (quoting Commercial Union Ins. Co. v. Byrne, 248 So.2d 777, 783 (Miss.1971)). In Simpson, this Court found that the trial court erred in not awarding prejudgment interest because the insured premises was admittedly “a total loss” and there was no dispute as to the amount of insurance coverage available. 564 So.2d at 1381. In Byrne, a case involving a suit by the insureds against their insurer for damage sustained to their home as a result of Hurricane Camille, this Court held that since there was “a justifiable dispute” concerning the amount of the damages sustained, the trial court correctly denied prejudgment interest. 248 So.2d at 783. Admittedly, in Byrne, this Court did not “foreclose” the possibility of a trial court, in the exercise of discretion, properly allowing prejudgment interest even when the “amount of the loss is in dispute.” Id.

¶ 31. In Grace v. Lititz Mutual Ins. Co., 257 So.2d 217 (Miss.1972), this Court had before it another “Hurricane Camille” case involving damage sustained to an office building owned by two architects. The architects were insured under a policy of insurance which excluded loss due to “flood, surface water, waves, tidal water, or tidal wave, overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by wind or not.” Id. at 219. At issue was whether the destruction of the architects’ building “was caused by the wind forces of Hurricane Camille or whether tidal water contributed to or aggravated the loss.” Id. In Grace, this Court affirmed the trial court’s denial of prejudgment interest and specifically distinguished the Byrne exception, finding that, unlike the possible exception envisioned in Byrne, “there was a bona fide dispute as to the amount of damages as well as the responsibility for the liability therefor.” Id. at 225.

¶32. In the end, we find that since Microtek hotly disputed not only the amount of attorneys’ awarded, but also whether 3M was even entitled to an award of attorneys’ fees, and since the award of prejudgment interest, even where otherwise appropriate, is in the sound discretion of the trial judge, the chancellor did not abuse his discretion in denying 3M’s request for prejudgment interest on his award of attorneys’ fees.

¶ 33. However, our discussion concerning prejudgment interest does not end here, because 3M claims that the chancellor abused his discretion by not stating a reason in the order for denial of prejudgment interest. The order simply states, that “[t]he Court exercises its discretion not to award prejudgment interest.” In its brief, 3M directs us to Pace v. Owens, 511 So.2d 489, 491-92 (Miss.1987), in which we held:

When a trial court makes no specific finding of fact, this Court often assumes that it resolved the fact issues in favor of Appellee. Bryant v. Cameron, 473 So.2d 174 (Miss.1985); Smith v. Todd, 464 So.2d 1155, 1157 (Miss.1985); Marascalco v. Marascalco, 445 So.2d at 1380, 1382 (Miss.1984); Cotton v. McConnell, 435 So.2d 683 (Miss.1983); Cheek v. Ricker, 431 So.2d 1139, 1143 (Miss.1983); Blakeney v. Blakeney, 244 So.2d 3, 4 (Miss.1971). Further, when there are no specific findings of fact, we sometimes assume the trial judge made determinations of fact sufficient to support the judgment. Rives v. Peterson, 493 So.2d 316, 317 (Miss.1986). In such circumstances this Court must look to the evidence and see what state of facts, if any, will justify the decree. Boatright v. Horton, 233 Miss. 444, 447, 102 So.2d 373, 374 (1958).

511 So.2d at 491-92. By 3M’s own admission in its brief, a trial court does not abuse its discretion per se by not stating reasons for decisions that are within its discretion. Rather, this Court will look at the evidence to see if that evidence justifies the trial court’s decision. In the case sub judice, we find that the chancellor did not abuse his discretion in denying prejudgment interest. Liability over attorneys’ fees was in dispute, and this Court’s precedent is to disallow prejudgment interest in that event. This Court can assume that the chancellor made determinations of fact sufficient to support the court’s judgment entered in favor of 3M. Thus, we find that the chancellor’s denial of prejudgment was not manifest error, and accordingly, we find 3M’s issue raised on cross-appeal to be without merit.

CONCLUSION

¶34. Pursuant to the indemnification clause in the contract voluntarily entered into by both Microtek and 3M, the chancellor did not err in granting summary judgment in favor of 3M for attorneys fees incurred by 3M in defending a Pennsylvania personal injury lawsuit commenced by a person who claimed to have been injured by a defective surgical drape manufactured by Microtek and marketed by 3M, inasmuch as Microtek refused to provide a defense; that the amount of attorneys’ fees assessed against Microtek and in favor of 3M by the chancellor was not a manifest abuse of discretion; and, that the chancellor likewise did not abuse his discretion in denying 3M’s request for prejudgment interest. We thus affirm the final judgment of the Lowndes County Chancery Court both on the direct appeal of Microtek Medical, Inc., and the cross-appeal of 3M Company.

¶ 35. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: AFFIRMED.

SMITH, C.J., WALLER, P.J., DIAZ, GRAVES AND RANDOLPH, JJ., CONCUR. DICKINSON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. COBB, P.J., AND EASLEY, J., NOT PARTICIPATING.

DICKINSON, Justice,

concurring in part and dissenting in part:

¶ 36. I agree with the majority that Microtek is not responsible for prejudgment interest. However, I dissent to so much of the majority opinion as finds Mi-crotek could be liable for attorney fees under the indemnification language of the contract. The indemnification provision very clearly and specifically limits Micro-tek’s indemnity obligation to cases where 3M’s losses (in this case, attorney fees) occurred “by reason of Seller’s breach of warranty ... or any negligent act or omission on the part of [Microtek].” The lawsuit against 3M made claims that Micro-tek’s product was defective. 3M was awarded summary judgment. Thus, there was no finding that Microtek breached any warranty or was negligent. Absent such a finding, the indemnity clause does not apply. Therefore, 3M is not entitled to recover anything from Microtek.

¶ 37. In support of its argument, 3M tells this Court that its “interpretation of the 1997 Contract is faithful to settled law. Courts throughout the United States recognize that proof of actual liability against an indemnitee is not a prerequisite to the indemnitee’s ability to seek indemnity from an indemnitor.”

¶ 38. The majority apparently accepted 3M’s argument without checking the accuracy of the authorities cited. The cited cases all involve distinctly different indemnity contract language, and each case is easily distinguishable.

¶ 39. In Burlington Northern, Inc. v. Hughes Bros., Inc., 671 F.2d 279, 281 (8th Cir.1982), Burlington Northern and Hughes Brothers entered into an industrial track agreement which stated, “[Hughes] also agrees to indemnify and hold harmless [Burlington] for loss, damage, or injury from any act or omission of [Hughes].... ” When a Burlington employee was injured and sued the railroad under the Federal Employers Liability Act (“FELA”), Burlington notified Hughes of the claim and asserted that it was obligated to indemnify Burlington pursuant to the contract. Id. at 282. Hughes denied responsibility, and Burlington settled with the injured employee and then sued Hughes for indemnification. Id. In order to establish that the settlement was reasonable, the trial judge required proof that Burlington was hable for the employee’s injury. Id. The court found the settlement reasonable because Burlington’s liability under FELA was established as matter of law. Id. at 283. Thus, 3M improperly cites this case for the proposition that proof of actual legal liability to the injured party is not a requirement when liability under an indemnity contract has been denied by the indemnitor.

¶ 40. In Bainville v. Hess Oil V.I. Corp., 837 F.2d 128, 129 (3d Cir.1988), the indemnity provision required the general contractor to “indemnify, exonerate, and hold harmless [the company] against loss, damage, liability or expense by reason of any suits, claims, demands, judgments or causes of action for personal injury (including death) ... arising out of or in any way in consequence of the performance hereunder by [the general contractor].... ” When an employee hired by the general contractor was injured while working for the company, he brought a lawsuit against the company. Id. at 130. The general contractor refused to defend the suit, so the company filed a third-party indemnity action against the general contractor. Id. Before trial, the company settled the claim with the plaintiff. Id.

¶ 41. In requiring the general contractor to provide indemnity, the court focused on the contract language, stating:

We have no trouble concluding that here the intent of the parties was not to require a determination of actual liability as a precondition of the duty to indemnify. The indemnity agreement applies to ‘any suits, claim, demands, judgments or causes of action for personal injury.’ There is no question that [the company] was faced with a demand from the original plaintiff.

Id. at 131.

¶ 42. The indemnity language in the case before us today includes an additional provision which requires the claim arise “by reason of Seller’s breach of warranty ... or any negligent act or omission on the part of [Microtek].” There was no language in the Bainville contract which conditioned the general contractor’s duty to indemnify on a finding of the general contractor’s fault.

¶ 43. The contract in Missouri Pacific Railroad v. Kansas Gas & Electric Co., 862 F.2d 796, 797 (10th Cir.1988), provided that

[KG & E] assumes full responsibility for, and shall defend, indemnify and save harmless the [railroad] from and against, any and all liability, suits, claims, damages, costs (including attorneys’ fees), losses, outlays and expenses in any manner caused by, arising out of or connected with the failure or refusal of [KG & E] to comply with, observe or perform any of the provisions of this Paragraph....

An employee of the railroad was injured while attempting to re-rail an engine that derailed due to KG & E’s violation of a provision of the agreement between the parties. Id. at 798. KG & E refused to participate in the settlement negotiations with the plaintiff, and the railroad settled with the plaintiff. Id. The railroad then sued KG & E for indemnity. Id.

¶ 44. The court discussed the reasonableness of the settlement between the railroad and the injured plaintiff, stating:

[wjhere an indemnitor denies liability and refuses to assume the defense of a claim under a contract of indemnity, the indemnitee, without waiving its rights, may enter into a good faith, reasonable and prudent settlement with the claimant. Proof of absolute legal liability or the actual amount of damages is not necessary in a subsequent action for recovery against the indemnitor. Rather, the indemnitee ‘need only prove its potential liability, a relatively simple showing under the strict FELA standards, and that the settlement amount was reasonably related to its employee’s injuries.’

Id. at 800 (emphasis in original; internal citations omitted). In the case before us today, there is no possibility that Microtek had any legal liability because it was awarded summary judgement.

¶ 45. In Altermatt v. Arlan’s Department Store, Inc., 284 Minn. 537, 169 N.W.2d 231, 232 (1969), the plaintiff was injured in the parking lot and sued Arlan’s. Arlan’s initiated a third-party action for indemnity against a construction company. Id. Before trial, Arlan’s settled Altermatt’s claim and proceeded with the trial to establish its right to indemnity from the construction company, which was under a contractual duty to maintain the parking lot. Id. The court held that a settlement with a claimant will not prevent the indem-nitee from recovering from the indemnitor where the indemnitee has incurred liability because of a breach of duty owed to him by the indemnitor. Id.

¶ 46. In summary, none of the cases cited by 3M or the majority stand for the proposition that “proof of actual liability against an indemnitee is not a prerequisite to the indemnitee’s ability to seek indemnity from an indemnitor.” The fact is, each indemnity agreement stands upon its own language. The very specific language in this case requires proof that Microtek either breached a warranty or was guilty of negligent conduct. Microtek was awarded summary judgement on all claims against it; and therefore, no such proof is possible. I therefore respectfully dissent in part.

      . Microtek was responsible for the design, manufacture, assembly, and inspection of the ArthroSteri surgical drape. Another company, Owens & Minor, Inc., was responsible for distribution of the ArthroSteri surgical drape. 3M simply marketed the drapes in the chain of commerce under its brand name.

      . The Pennsylvania trial court granted summary judgment in favor of 3M because Chap-ley’s expert witness report stated that the drape was not defective. In fact, the report stated that Chapley's doctor’s failure to apply the drape appropriately and failure to monitor the use of the drape during the surgery caused Chapley’s injury.

      . Microtek designed, manufactured, assembled, and inspected the ArthroSteri surgical drape. Owens & Minor, Inc., distributed the ArthroSteri surgical drape. There is no mention in the record of any allegations at any time against Owens & Minor, Inc.

      . Microtek argues that 3M did not demand prejudgment interest in its complaint and therefore is not entitled to it. However, based on our disposition of this issue in Mi-crotek's favor, we deem it unnecessary to discuss this issue further.