author: DAVID S. GORBATY, Judge.

text:
    STATE of Louisiana v. Thedrow BROWN.
    No. 2005-KA-1146.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 2006.

      Sheila C. Myers, Tulane University Criminal Law Clinic, New Orleans, LA, for DefendanVAppellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   DAVID S. GORBATY, Judge.

liThe State appeals a judgment of the trial court granting defendant Brown’s Motion to Quash the bill of information. For the following reasons, we reverse and remand.

STATEMENT OF CASE:

On August 25, 2004, the defendant The-drow Brown was charged in case #451-414 with one count of possession of heroin, a charge to which he pled not guilty at his arraignment on August 27. The court set a hearing on motions for September 24, and on that date continued the matter on joint motion to October 18. On October 18, the court again continued the hearing on joint motion and reset the matter for hearing and trial on November 3. On November 3, 2004, the State nolle prosequied the case, and the court ordered Brown released.

On January 19, 2005, the State reinsti-tuted the heroin charge in the present case. The case was allotted the next day then reallotted to the present section on February 4 to follow case # 451-414. Brown appeared for arraignment on February 15 and again pled not guilty. The court reset the matter to February 22 for determination of counsel, and when Brown failed to appear on that date, the court issued a capias for his arrest. On February 28 Brown appeared and filed a motion to quash the bill of information. The court set the matter for March 14. When | aBrown did not appear on March 14, the court reset the matter for March 18. On March 17 the State filed its opposition to the motion to quash, and on March 18 the court granted the motion. The State now appeals that judgment.

FACTS:

The only known facts of the underlying offense are found in a police report included in case # 451-414. On August 3, 2004, at approximately 11:10 p.m. officers observed the defendant Thedrow Brown and an unknown man loitering in the parking lot of the Newton Discount Market. The officers had warned Brown two times earlier the same evening about loitering in the same parking lot. As the officers approached Brown and his companion, the companion fled the scene by jumping a fence. The officers detained Brown and noticed him trying to conceal a metal object in his right hand. The officers asked Brown what he had in his hand, and in response Brown discarded a metal container to the ground. The officers retrieved the container and found inside six capsules containing a tan colored powdered substance the officers believed to be heroin. The officers then arrested Brown.

DISCUSSION:

By its first assignment of error, the State argues that the trial court erred by granting the motion to quash based upon its finding that the defendant’s rights to a speedy trial were violated. The record does not contain a copy of the defendant’s motion to quash. The transcript of the March 18, 2005 hearing merely notes that the court granted the motion, but the court did not give any reasons for its ruling. On May 10, 2005, six weeks after it granted the motion to quash in the instant case, the trial court issued a per curiam referencing this and twenty-eight other cases, some of which were misdemeanors. In the per curiam, the court confirmed that it | squashed the bills of information in these cases because the State dismissed the charges after the court had denied its motions to continue. The court further stated that none of the State’s motions for continuance conformed to La.Code Crim. Proc. art. 707, which requires a motion to continue to be in writing and filed at least seven days before trial. The minute entry of the November 3, 2004 hearing in case #451^114, when the State nolle prose-quied that case, does not indicate that the State entered a nolle prosequi of the case because it could not obtain a continuance of trial. However, the State appears to concede in its brief that this was the reason for the nolle prosequi.

The State now argues that it had the authority to dismiss the original bill of information and reinstitute the charges in the present bill. It further argues that neither the defendant’s statutory right nor his constitutional right to a speedy trial was violated in this case.

This Court most recently addressed these issues in State v. Brown, 2005-1090, pp. 2-3, (La.App. 4 Cir. 3/22/06), 929 So.2d 182, 184-185:

The State is correct that it has the authority to enter a nolle presequi and reinstate the charge. Both the Louisiana Supreme Court and this court have recognized this authority; however, the jurisprudence has also recognized that this authority may be overborne under the circumstances of any given case by the defendant’s constitutional right to a speedy trial. State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198; State v. Scott, 2004-1142 (La.App. 4 Cir. 7/27/05), 912 So.2d 843.
The State’s authority to dismiss any prosecution without the consent of the court is recognized in La.C.Cr.P. art. 691. Under La.C.Cr.P. art. 576, the State is authorized to reinstitute the charges within six months of the dismissal .... The State, however, is required to show that the dismissal of the original prosecution was not for the purpose of avoiding the time limitations set by Article 578.

1 ¿Louisiana Code of Criminal Procedure art. 578 requires that in a non-capital felony case the State bring a defendant to trial within two years from the date of the bill of information.

This Court further explained in Brown, 2005-1090 at p. 4, 929 So.2d at 185:

It is well settled that the standard for analyzing a defendant’s claim that his constitutional right to a speedy trial was violated is the four factor test enunciated in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182[, 33 L.Ed.2d 101] (1972); to-wit: (1) the length of the delay, .(2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant. The first factor — the length of the delay — is often referred to as the “triggering mechanism” because unless the delay is “presumptively prejudicial,” no further inquiry into the other Barker factors is required. Love, 2000-3347 at p. 16, 847 So.2d at 1210. Furthermore, the circumstances of each individual case determine the weight to be ascribed to the length of the delay and the reason for the delay. [State v.] Reaves, 376 So.2d [136] at 138 [(1979)]. Because the complexity of the particular case must be taken into consideration, a delay that is acceptable in one case may not be acceptable in another. Gray v. King, 724 F.2d 1199, 1202 (5th Cir.1984)(citing Barker, 407 U.S. at 531, 92 S.Ct. 2182). The manner of proof must also be considered, as must the gravity of the alleged crime. Id.

“A defendant challenging the state’s dismissal and reinstitution of charges has the burden of showing a violation of his constitutional right to a speedy trial.” State v. Scott, 2004-1142, p. 12 (La.App. 4 Cir. 7/27/05), 913 So.2d 843, 851; State v. Henderson, 2000-0511, p. 7 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138, 1142.

In another recent case, State v. Batiste, 2004-1200 (La.App. 4 Cir. 5/11/05), 904 So.2d 766, this Court noted the appropriate standard for appellate review:

In State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198, the Louisiana Supreme Court considered whether an appellate court abused its discretion in overturning a trial court’s ■ denial of a motion to quash where the defendant argued that his right to a speedy trial was violated. The court noted the relationship ■ of the courts and stated:
Because of the complementary role of trial courts and appellate courts demands that [fideference be given to a trial court’s discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion.
Id., 847 So.2d at 1206.
In State v. Harris, 2003-0524 (La. App. 4 Cir. 9/10/03), 857 So.2d 16, this Court, considering a similar issue and the Love decision, stated:
Thus, ... the proper approach to the question of whether the defendant’s right to a speedy trial was violated is not merely a review of the dates and circumstances of the hearings, but an examination of the entire record in order to discern whether there was “palpable abuse” on the part of the trial court in granting the motion to quash. Id. at 1209.
Id., 857 So.2d at 18.

Batiste, 2004-3347 at pp. 7-8, 904 So.2d at 770. In Batiste, twenty months elapsed between the filing of the original charge and the quashing of the second bill of information, and this Court found this delay to be presumptively prejudicial. This Court then reviewed the remaining Barker factors and found that most of the delay was caused by consideration of the defendant’s motion to suppress the evidence, as well as by two continuances of trial on joint motion. This Court noted that the defendant had filed no motion for speedy trial, and it further found that the prejudice suffered by the defendant, who was not incarcerated, was limited to his having to travel back and forth from Florida for hearings in his case. Nonetheless, this Court found that under the Love standard the trial court showed no “palpable abuse” by quashing the charge against the defendant, and it affirmed the trial court’s ruling.

|fiBy contrast, in State v. Pham, 97-0459 (La.App. 4 Cir. 3/26/97), 692 So.2d 11, this Court found that a nine-month delay in a case of cheating at gambling did not warrant the quashing of charges, even though the defendant had to travel from Houston to New Orleans four times for trial. See also State v. Keller, 2003-0986 (La.App. 4 Cir. 10/1/03), 859 So.2d 743, where this Court found that the six-and-a-half-month delay between the filing of the initial bill of information and the quashing of the reinst-ituted bill of information was not presumptively prejudicial.

In State v. Santiago, 2003-0693 (La.App. 4 Cir. 7/23/03), 853 So.2d 671, this Court considered all of the Barker factors even though it found that a fifteen-month delay was not presumptively prejudicial. By contrast, in State v. Larce, 2001-1992 (La. App. 4 Cir. 1/23/02), 807 So.2d 1080, this Court did not consider the other Barker factors after finding that a delay of only two and a half months was not presumptively prejudicial. In State v. Leban, 611 So.2d 165 (La.App. 4 Cir.1992), this Court found that a sixteen-month delay was prejudicial, and in State v. Firshing, 624 So.2d 921 (La.App. 4 Cir.1993), it found that a seventeen-month delay was prejudicial.

In State v. Gray, 98-0347 (La.App. 4 Cir. 10/21/98), 766 So.2d 550, this Court suggested that the eleven-month delay might not have been presumptively prejudicial in that most prior cases considered by this Court had involved delays of over one year. Nonetheless, this Court considered the remaining Barker factors based on State v. Reaves, 376 So.2d 136 (La.1979), where the Court had found that a three-and-a-half-month delay violated the defendant’s right to speedy trial in a misdemeanor case.

17Here, the State filed the original bill of information on August 25, 2004. The defendant pled not guilty on August 27. The court reset the motion hearing twice- on joint motion, and on November 3, 2004 the State nolle prosequied the case. Thus, only a little over two months elapsed between the filing of the original bill and the State’s decision to nolle prosequi the case. As per- La.Code Crim. Proc. art. 578(2), the State had two years from the institution of prosecution in which to bring the defendant to trial in that case. As such, the State did not nolle prosequi the original case in order to circumvent the statutory limitation on bringing the defendant to trial. In addition, the State reinst-ituted the prosecution approximately two and a half months after it nolle prosequied the first bill, well within the, six-month time limitation it had to reinstitute the charge as per La.Code Crim. Proc. art. 576. Therefore, the State did not violate the defendant’s statutory right to a speedy trial.

Nor does it appear that the State violated the defendant’s constitutional right to a speedy trial by entering the nolle prosequi in the first case and reinsti-tuting the charge in the present case. As per Barker, the first factor, the length of the delay, is the threshold requirement for any court’s review of a speedy trial claim. The reviewing court need not consider the remaining factors unless the delay is “presumptively prejudicial.” Love, 2000-3347 at p. 16, 847 So.2d at 1210. Moreover, “the peculiar circumstances of the case determine the weight to be ascribed to the length of the delay and the reason for the delay.” Id.

IsHere, a little less than seven months elapsed between the filing of the bill of information in the original case and the quashing of the indictment in the present case. Because this case involves a felony conviction, it does not appear that this delay is presumptively prejudicial. See Pham and Keller, supra. Thus, the court need not consider the other Barker factors.

Moreover, even considering the remaining factors, the State’s actions did not violate the defendant’s constitutional right to a speedy trial. With respect to the second factor, both parties were responsible for the “delays” in this case. The court granted two continuances on joint motion in the original case. The State nolle prosequied that case less than a month later, which was a little over two months after the original bill was filed. Approximately two and a half months later the State reinstituted the charge in the present case. The defendant failed to appear for determination of counsel approximately a month later, and less than one month after that the court quashed the bill. Thus, the delays in this case were attributable to both parties.

As for the remaining Barker factors, there is no indication that the defendant filed a motion for speedy trial in either the original case or the present case. Nor is there any indication that the defendant showed or even alleged any prejudice from the delay. Although the defendant was incarcerated while the original charges were pending, the record indicates he was out on bond during the pendency of the present case. There was no allegation that evidence was lost or that witnesses became unavailable due to the delays.

As per Love, we give deference to a trial court’s ruling on a motion to quash. However, applying the Barker factors to the circumstances of this case, it appears the trial court’s ruling was a “palpable abuse” of its discretion.

|aBy its second assignment of error, the State contends that its failure to adhere to the requirements of La.Code Crim. Proc. art. 707 did not warrant the quashing of the bill of information in this case. Art. 707 provides in pertinent part: “A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based.... It shall be filed at least seven days prior to the commencement of trial.” Although the minute entry of the date the State nolle prosequied the original charge is silent as to any continuance motion, the State acknowledges that it orally moved for a continuance on November 3, 2004, the date of trial, when its witnesses failed to appear. In addition, the trial court included the present case in its May 10, 2005 per cu-riam indicating that it had quashed the bills of information due to the State’s failure to comply with art. 707, by requesting a continuance of trial due to the failure of its witnesses to appear. The State argues, however, that its failure to comply with the mandates of art. 707 did not allow the trial court to quash the bill of information in the present ease. At most, it argues, the trial court’s most drastic remedy for the State’s failure to comply would have been the action it took at the time: denying the continuance. The State is correct that there is no provision for quashing the bill of information for a failure to comply with the mandates of art. 707. Undoubtedly the trial court was frustrated with the State’s failure to have its witnesses appear for trial, if indeed this was the reason for the nolle prosequi However, this frustration cannot serve as a valid basis for quashing the bill of information in this case, where neither the defendant’s statutory or constitutional speedy trial right was violated by the State’s failure to comply with the requirements of art. 707.

Accordingly, for the foregoing reasons, we reverse the judgment of the trial court and remand this matter for further proceedings.

ImREVERSED AND REMANDED

      . Ultimately in Gray, this Court reversed the trial court’s decision granting the motion to quash, finding that the State had not attempted to gain a tactical advantage and that the defendants had failed to show sufficient prejudice. The Supreme Court granted writs and reversed this court's decision on the grounds that the State had failed to timely move for an appeal from the trial court's granting of the motion to quash. State v. Gray, 98-2902 (La.5/7/99), 740 So.2d 1291.


source: Caselaw Access Project

author: CHARLES R. JONES, Judge.

license: Public Domain

text:
    Lonnie FONTENOT, Alan LeBlanc and Wayne Thibodaux v. DIAMOND B MARINE SERVICES, INC., Zurich Insurance Company & National Union Fire Insurance Company of Louisiana.
    No. 2005-CA-0863.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 2006.

      Charles J. Ballay, Adrian A. Colon, Jr., Ballay, Braud & Colon, Belle Chasse, LA, for Plaintiffs/Appellants.
    John B. Peuler, Gregory L. Ernst, Anthony D’Alto II, Peuler & Ernst, New Orleans, LA, for National Union Fire Insurance Company of Louisiana.
    James A. Cobb, Jr., John F. Emmett, Louis G. Spencer, Emmett, Cobb, Waits & Kessenich, New Orleans, LA, for Zurich Insurance Company.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge LEON A. CANNIZZARO JR.).
   CHARLES R. JONES, Judge.

liThe Appellants, Lonnie Fontenot, Alan LeBlanc and Wayne Thibodaux, seek a review of a district court judgment that found that the excess policy of the Appel-lee, National Union Fire Insurance Company of Louisiana (hereinafter “National Union”), did not provide their insured, Diamond B Marine Services, Inc. (hereinafter “Diamond”), with coverage, and granted National Union’s Motion for Summary Judgment. We AFFIRM.

STATEMENT OF FACTS

The Appellants filed a petition for a declaratory judgment in the 25th Judicial District Court for the Parish of Plaque-mines, to collect on a judgment rendered against Diamond in the United States District Court for the Eastern District of Louisiana. The Appellants sought coverage under two insurance policies, primary and excess, for an accident that occurred on March 25, 1999, in which they sustained personal injuries. Diamond was insured by two policies: a primary policy issued by Zurich Insurance Company (hereinafter “Zurich”), which provided coverage of up to $1 million; and an excess policy, (a bumbershoot | {.policy), issued by National Union, which provided excess coverage of up to $4 million in excess of $1 million.

National Union issued to Diamond a renewed bumbershoot policy with effective dates of November 1, 1998 to November 1, 1999. In the policy “Schedule of Vessels” provision was provided excess coverage for the following Diamond vessels: “DIAMOND 7, DIAMOND 8, DIAMOND 101, and DIAMOND 117,” and $14 million excess underlying coverage for “LTL BOB.” The policy also included an “Endorsements” provision, adding/deleting specific Diamond vessels from coverage with a corresponding increase/return of premium. The MISS BERNICE, a vessel owned and operated by Diamond, was neither listed in the “Schedule of Vessels” provision, nor was she added for coverage by the “Endorsement” provision.

On March 25, 1999, the MISS BERNICE collided with the CANE RIVER, a vessel owned and operated by Trico Marine Assets, Inc. (hereinafter “Trico”). Since the Appellants aboard the MISS BERNICE incurred personal injury as a consequence of the collision between the vessels, they sought damages against Diamond in the United States District Court for the Eastern District of Louisiana. The Appellants successfully prosecuted .then-claims against Diamond. The United States Fifth Circuit Court of Appeals also affirmed the judgment. Insurance issues were not raised in the above federal court actions.

Thereafter, the Appellants initiated this lawsuit to collect on the damages rendered against Diamond from both Zurich and National Union. The Appellants and National Union filed cross Motions for Summary Judgment in the district court regarding whether National Union’s excess policy provided coverage to Diamond for the Appellants’ injuries on the MISS BERNICE.

1 ¿PROCEDURAL HISTORY

The Appellants demanded payment of the judgment, which totaled approximately $1.1 million with interest and costs, from Diamond and its insurers. Since Diamond’s insurers refused to pay the judgment, the Appellants filed a state court claim on August 22, 2003, against Diamond and its insurers, to collect on their judgment. After two years of continuous dé-mands, Zurich finally deposited what they alleged was the balance of its insurance policy limit, $727,063.40, into the registry of the federal court. However, there was still a deficit in the judgment in an amount between $400,000.00 and $500,000.00. National Union refused to pay the deficit. The Appellants and National Union each filed cross motions for summary judgment regarding whether National Union’s excess policy provided coverage to Diamond as a result of this accident. The district court granted National Union’s Motion for Summary Judgment holding that the excess policy did not provide coverage to Diamond for liability arising from the MISS BERNICE incident. The Appellants filed this timely appeal.

DISCUSSION

The Appellants’ sole argument is that the district court erred in holding that National Union’s policy issued to Diamond does not provide coverage for the accident involving the Appellants on March 25,1999, on the vessel, the MISS BERNICE.

Because the issue of whether or not National Union’s excess policy applies to the accident on the MISS BERNICE is a question of law, we review this issue de novo. Further, appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Indep. Fire Ins. Co. v. Sunbeam Corp., 1999-2181 (La.29/00), 755 So.2d 226; Schroeder v. Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991). Summary judgment is favored in Louisiana law. La. C.C.P. art. 966(A)(2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, scrutinized equally, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The burden of proof (in motions for summary judgment) remains with the mover. Bd. of Assessors of the City of New Orleans v. City of New Orleans, 2002-0691, p. 8 (La.App. 4 Cir. 9/25/02), 829 So.2d 501, 506. If the moving party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). A fact is material if it is essential to the plaintiffs cause of action under the applicable theory of recovery and if, without the establishment of the fact by a preponderance of the evidence, plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4 Cir.1992).

The National Union Policy No. H0635 is specifically tailored to Diamond’s needs. For example, the “Schedule of Vessels” provision included only five vessels, and selected vessels were insured up to $4 million (except for the “LTL BOB”). Since the policy period was November 1, 1998 to November 1, 1999, the policy was in effect at the time of the collision between the CANE RIVER and the MISS BERNICE on March 25, 1999. The question is, however, whether National | ¡¡Union's policy provided coverage for Diamond’s use of the MISS BERNICE even if it was not listed in the policy.

The regulation and interpretation of insurance policies are primarily governed by state law. See Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 337, 75 S.Ct. 368, 99 L.Ed. 337 (1955); Ingersoll-Rand Fin. Corp. v. Employers Ins. Co. of Wausau, 771 F.2d 910 (5th Cir.1985). In Louisiana, an insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Cadwallader v. Allstate Ins. Co., 2002-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580. The court’s role in interpreting insurance contracts is to ascertain the common intent of the parties to the contract. Id.; La. C.C. art. 2045.

To ascertain the common intent of the parties, one must look at the language of the insurance policy. See Peterson v. Schimek, 1998-1712, p. 3 (La.3/2/99), 729 So.2d 1024, 1028. The meaning and intent of the parties to the written contract must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence. Highlands Underwriters Ins. Co. v. Foley, 96-1016 (La.App. 1 Cir. 3/27/97), 691 So.2d 1336, 1340, citing La. C.C. art. 1848. Conversely, the use of extrinsic evidence is proper, where an insurance contract is found to be ambiguous after examination of the four corners of the instrument. Id. Thus, where there is uncertainty as to the terms of a written contract, because its provisions are susceptible to more than one interpretation or when the intent of the parties cannot be ascertained from the language employed, parol evidence is admissible to clarify the ambiguity or show the intention of the parties. Id., citing La. C.C. art. 2045.

|fiWhen the language of an insurance policy is clear, courts must enforce the contract as written and may make no further interpretation in search of the parties’ intent. Id.; Adams v. Unione Mediterranea Di Sciorta, 220 F.3d 659, 663 (5th Cir.2000). When policy provisions are ambiguous, they are generally construed against the insurer in favor of coverage. La. C.C. art. 2056; Cadwallader, 848 So.2d at 580; Carrier v. Reliance Ins. Co., 1999-2573, p. 12 (La.4/11/00), 759 So.2d 37, 43; La. Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759, 764.

Words in an insurance contract are to be given their generally prevailing and ordinary meaning, unless they have acquired a technical meaning. La. C.C. art. 2047; Peterson, 729 So.2d at 1029. In addition, an insurance contract is construed as a whole and each provision in the policy must be interpreted in light of the other provisions so that each is given meaning. Id. In other words, one portion of the policy should not be construed separately at the expense of disregarding other provisions. Id.,citing La. C.C. art. 2050.

The Appellants argue that the district court should have recognized that the Appellants’ judgment is against Diamond and not against the MISS BERNICE; in other words, they argue that since Diamond is “legally liable to pay” the judgment and it is enlisted in the “Schedule of Insureds,” National Union should provide coverage for the judgment debtor, Diamond. However, while Diamond is legally bound to pay the judgment, National Union is not obliged to provide coverage for an incident arising from the MISS BERNICE collision, since they were not paid a premium to do so. Conversely, if National Union were paid to provide an excess policy coverage for liability arising from the MISS BERNICE collision, then they would have to do so in accordance with the insuring agreement. Therefore, even |7though the judgment is against Diamond, liability for this incident does not automatically transfer to National Union.

Additionally, the Appellants argue that if the underlying- Zurich policy provides coverage, then the National Union policy is also triggered according to the policy language. They cite the insuring agreement between National Union and Diamond to support their argument. - The agreement states that National Union will indemnify Diamond for all “Protection and Indemnity (marine)” policy claims “of whatever nature including those covered by the underlying insurances.” National Union specifically insured only.those selected.vessels enlisted iu the “Schedule of Vessels” provision and the vessels added by the “Endorsements” provision.

The terms of an insurance contract must be interpreted consistently so as not to render portions of the policy as of no significance, surplusage, or meaningless. Hanover Petroleum Corp. v. Tenneco, Inc., 521 So.2d 1234, 1238 (La.App. 3 Cir.1988); Gulf Enter., Inc. v. Md. Cas. Co., 267 So.2d 733, 735 (La.App. 4 Cir. 1972). Had all liabilities arising from every vessel Diamond owned been covered by National Union, this would render the “Schedule of Vessels” and the “Endorsements” provisions meaningless because these were included to limit their exposure to liability. Thus, the fact that the underlying Zurich policy provided coverage is not an issue in consideration of whether National Union policy was triggered or not.

The Appellants further contend that if only five vessels were to be covered and National Union expected to limit their exposure to liability, they should have clearly stated the vessel “exclusion” somewhere in the policy. They cite Smith v. Reliance Ins. Co. of Ill, 01-888 (La.App. 5 Cir. 1/15/02), 807 So.2d 1010, 1014, |sto support their argument that an insurer seeking to avoid coverage through summary judgment must prove that the exclusion applies to preclude coverage. In Smith, the court addressed the issue of whether the insurer can use an ambiguous exclusion to avoid coverage. Id. However, the facts of the case sub judice are distinguishable from those in Smith because there is no ambiguous exclusion herein. The MISS BERNICE is not listed in “Schedule of Vessels,” nor in any of the “Endorsements” provisions. Thus, the facts are sufficient to show that the parties did not intend the MISS BERNICE to be covered by the excess policy.

Finally, the Appellants argue that it is absurd to consider that Diamond desired to be insured on only five vessels but chose to be vulnerable to personal injuries on all the other owned vessels. An excess policy is an optional coverage. There can be numerous reasons why Diamond did not purchase an excess policy for the MISS BERNICE. For whatever reason, Diamond decided to have less insurance coverage on the MISS BERNICE.

In sum, because the language of the policy is clear and unambiguous, the contract is enforceable as written.

Furthermore, with regards to whether National Union was prejudiced by a late notice of personal injury claim is not ripe for us to review since it was not raised in the district court.

DECREE

For the reasons stated herein, we affirm the judgment of the district court.

AFFIRMED.

      . Zurich Insurance Company also filed an appeal regarding a separate issue which was dismissed by this Court because the plaintiffs and Zurich Insurance Company settled all claims between them.


author: ROLAND L. BELSOME, Judge.

text:
    Dennis SKINNER and Michael Childs v. DERR CONSTRUCTION COMPANY, Manhattan/Gibbs, Manhattan Construction Co., Gibbs Construction Co., Herman Binz & Sons Iron Works, Arthur Davis, Faia & Partners, Billes Manning Architects, Hewitt/Washington & Associates, Charles G. Lewis, et al., Shan Paulk v. Manhattan/Gibbs, Manhattan Construction Company, Gibbs Construction Company, Herman Binz & Sons Iron Works, Inc., Charles Lewis d/b/a Lewis Engineering.
    Nos. 2005-CA-0816, 2005-CA-0817.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 2006.

      See also 850 So.2d 24.
    James E. Cazalot, Jr., New Orleans, LA, for PlaintiffiAppellanL
    Scott G. Jones, Inabnet & Jones, L.L.C., Mandeville, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| Plaintiff-Appellant, , Shan Paulk, appeals the trial court’s grant of Defendant Appellee,. Herman Binz & Sons Iron Works, Inc.’s motion for summary judgment, which dismissed Appellant’s products liability claims against Defendant-Ap-pellee for injuries he sustained during the construction of the New Orleans Arena. Plaintiff-Appellant also appeals the trial court’s subsequent denial of his motion for a new trial.

FACT SUMMARY

This litigation centers on an accident that occurred during the construction of the New Orleans Arena. The general contractor, Manhattan/Gibbs, contracted with Herman Binz & Sons Iron Works, Inc. (“Binz”) to supply fabricated steel for the structure. The general contractor then contracted with the Derr Construction Company (“Derr”) to erect the steel structure of the New Orleans Arena. Appellant Shan Paulk (“Paulk”) was an employee of Derr.

On September 19, 1998, Derr employees were attempting to lift into place the steel framing for the Mezzanine level on one side of the structure. The steel Dwas structural steel that had been fabricated and supplied by Binz. The framing resembled a giant drainage grate made of steel beams, and it had a length of 80 feet. The steel framing hung parallel to the ground, suspended by four cables attached to a crane. Derr had previously bolted the pieces of the steel frame together. After the structure was lifted into place, Appellant and two co-workers, Dennis Skinner and Michael Childs, were working aloft on the steel frame to make permanent connections with bolts to the main structure.

The steel frame suddenly collapsed causing the plaintiff and his coworkers to fall 19 to 30 feet to the concrete below. Specifically, the frame broke at the intersection of two steel beams, A761 and B761. As a result of the fall, all three sustained serious bodily injuries. Paulk remains disabled from working and under medical care today.

PROCEDURAL HISTORY

Paulk filed a Petition for Damages against various defendants including Binz on October 6, 2000. On January 27, 2004, Binz moved for summary judgment against Paulk alleging that no material facts remain in dispute about its liability.

The motion for summary judgment was heard by the trial court on August 27, 2004. A written judgment was entered without written reasons on September 8, 2004. Paulk filed a motion for new trial on September 20, 2004. The motion for new trial was heard on December 3, 2004. A written judgment was entered without written reasons on December 10, 2004 denying the motion for new trial. Paulk filed a notice of appeal covering both judgments on February 7, 2005, which was then signed oh February 14, 2005.

I ¡¡ASSIGNMENTS OF ERROR

Appellant contends that the trial court erred in granting summary judgment when material facts remained in dispute as to the cause of the accident, and in denying Paulk’s motion for new trial.

LAW AND ANALYSIS

The duty of a court of appeal is to review a summary judgment de novo, considering the same standards applied by the trial court in deciding a motion for summary judgment. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. If the court finds that a genuine issue of material fact exists, summary judgment must be rejected.

The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. At that point, the party opposing the motion must “make a showing sufficient to establish existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial.” La. C.C.P. art. 966(C).

This appeal asks us to determine whether the trial court appropriately granted summary judgment to Binz. Paulk alleges that the steel beam | manufactured by Binz was unreasonably dangerous under the Louisiana Products Liability Act (“The LPLA”). The LPLA is the law governing the liability of a manufacturer for a product he produced, designed, or fabricated. La. R.S. 9:2800.54 provides:

A. The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.
B. A product is unreasonably dangerous if and only if:
(1) The product is unreasonably dangerous in construction or composition as provided in R.S. 9:2800.55;
(2) The product is unreasonably dangerous in design as provided in R.S. 9:2800.56;
(3) The product is unreasonably dangerous because an adequate warning about the product has not been provided as provided in R.S. 9:2800.57; or
(4) The product is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product as provided in R.S. 9:2800.58.

Paulk claims that he is entitled to damages from the Binz under the LPLA because Binz’s product was unreasonably dangerous in one of three ways: construction or composition; inadequate warning; or failure to conform to an express warranty. First, Paulk alleges that the steel was unreasonably dangerous in construction or composition, as provided under La. R.S. 9:2800.54(B)(1). La. R.S. 9:2800.55 elaborates:

A product is unreasonably dangerous in construction or composition if, at the time the product left its manufacturer’s control, the product deviated in a material way from the manufacturer’s specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer. La. R.S. 9:2800.55.

|BAt the hearing, Paulk presented evidence from three expert witnesses. The first, William Bonefas, is a registered professional engineer and Vice President of a consulting structural engineering firm located in Fort Worth, Texas. Bonefas testified that the cause of the accident could be placed in one of four categories: (1) lifting forces, (2) material defects, (3) fabrication defects, or (4) modification to the product by the erector. The first and last causes would be attributable to Paulk’s employer, Derr Construction, and categories (2) and (3) would be attributable to Binz.

Through the use of computer generated models, Bonefas eliminated lifting forces as a possible cause, and in a March 23, 1999 letter to Derr, he concluded that the collapse of the steel structure was not the result of overloading or the connection of the beams. Specifically, Bonefas wrote, “[i]t is my professional opinion that failure of this plate is the result of some other phenomenon, possibly a material defect or a pre-existing crack in the plate.”

Paulk’s own testimony eliminated one of these — modifications to the product by the erector — as a potential cause. Paulk was present when the steel arrived, he assisted in unloading the steel, and he was involved in putting the frame together, and Paulk argues that no modifications were made to the product by the erector.

Bonefas believed that the accident likely occurred because of either fabrication defects or material defects. However, he could not say with certainty what the exact cause was. Bonefas testified, “I have no physical or hard evidence of the plate not performing. Merely I concluded that the stress alone was not sufficient to do that, and I think I made mention that that would be something that would be warranted looking at.”

| ,;Paulk also produced the testimony of Edward Cox. Cox is a Ph.D. and works for EPC Engineering Resources, Inc. in Dallas, Texas. In a March 31, 1999 letter to Derr, Cox wrote that he disagreed with an OSHA Citation and Notification of Penalty to Derr. In the citation, OSHA wrote that the platform collapsed due to overloading. Mr. Cox countered that “[n]o evidence of overloading has been found in platform itself, rigging, or lifting equipment. Conversely, the rigging, lifting equipment, and platform sections all exhibited considerable physical evidence of not being overloaded at the time of failure.” In a May 13, 1999 letter to Derr, Dr. Cox noted that an examination of the initial failure site “revealed abnormal fracture feature and unusual deformation patterns.”

Binz relied primarily on the testimony of Courtney Busch, a registered professional engineer in Louisiana and a metallurgical expert. Essentially, Busch found that no fabrication errors occurred, and that the platform collapsed due to loading forces. In his report, Busch concluded that “the plate ... failed due to an overload force. No defects were found in the plate or the welding process that could have caused this type of gross overload failure.”

Busch’s testimony was opposed by Joseph Skaggs, a metallurgical engineer who testified that the analysis performed by Courtney Busch on this connection was insufficient to rule out a material defect, fabrication defect or pre-existing damage to the connection. After reviewing the OSHA review and citations, witness statements, Courtney Busch’s reports and deposition, and other information, Skaggs testified that the accident could have only been caused by |7applied force in the excess of the connector’s design capacity, or a defect in the material, fabrication, or pre-existing damage due to the connection.

In sum, Binz’s witness testified that overloading conclusively caused the accident. Paulk’s witnesses testified that overloading was conclusively not a cause of the accident, and that a fabrication or material defect in the steel was a likely cause of the accident, but they could not testify as to what conclusively caused the accident. We believe that the sum of their testimony presented enough evidence to establish a genuine issue of material fact.

Regarding the standard for summary judgment, the Supreme Court wrote:

A “genuine issue” is a “triable issue.” More precisely, an issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue.

Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94); 639 So.2d 730, 751 (internal citations and quotations omitted).

At issue in this case is Binz’s responsibility for the accident that caused Paulk’s injuries. Considering the conflicting evidence presented by experts Busch, Bone-fas, Cox and Skaggs, reasonable persons could disagree on whether Binz is responsible for Paulk’s injuries.

The Supreme Court has also written that:

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Simply put, a “material” fact is one that would matter on the trial on the merits.

Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94); 639 So.2d 730, 750-51 (internal citations and quotations omitted). Clearly, the cause of the | saccident is essential to Paulk’s claim, would determine the outcome of the legal dispute, and would matter at trial. It is the critical fact at issue in this lawsuit.

Binz points out that opposition to a motion for summary judgment cannot prevail when it is based on pure speculation. Black’s Law Dictionary defines speculation as “(t)he act or practice of theorizing about matters over which there is no certain knowledge.” Black’s Law Dictionary 1435 (Bryan A. Garner ed., 8th ed., West 2004).

The Louisiana Supreme Court recently stated that a witness’s speculation on an issue was of no probative value in determining a motion for summary judgment when there was no sound basis for the speculation. We believe it is appropriate to provide a thorough analysis of the context of this statement. In Jones v. Estate of Santiago, 2003-1424 (La.4/14/04); 870 So.2d 1002, Eliud Santiago shot and killed his girlfriend, Annissa Jones, after she decided to return to her husband, Davy Jones. He also killed two of her and Davy Jones’ daughters. Santiago then shot and killed himself. Davy Jones filed suit to recover damages sustained on behalf of himself and his minor children as a result of the death of Annissa Jones. Named as defendants were the Estate of Santiago and State Farm Insurance Company, the insurer providing homeowner’s insurance coverage to Eliud Santiago.

State Farm filed a motion for summary judgment seeking to have plaintiffs’ claim dismissed on the basis that the killing of Annissa Jones was not a covered occurrence under the insurance policy issued to Eliud Santiago and was specifically excluded by the intentional act exclusion. The trial court denied the motion for summary judgment, reasoning that the plaintiff had produced evidence 19that the shooting was not intentional. Specifically, Annissa Jones’ eight year-old daughter Kaitly testified that she did not think the accident was intentional.

The court of appeal affirmed the judgment, but the Supreme Court reversed, holding that there was no genuine issue of material fact — clearly the shooting was intentional. The Supreme Court was moved by the “fact that more than one individual was shot, the fact that Annissa suffered two gunshot wounds to the head and another to the arm, and the fact that there were no signs of a struggle and no defensive wounds on the body ... Additional physical evidence includes three other deaths, all caused by gunshot wounds to the head.” Jones v. Estate of Santiago, 2003-1424, pp. 10-12 (La.2004); 870 So.2d 1002, at 1009-10.

The Supreme Court’s treatment of Kaitly’s deposition is relevant to the case at hand. The Court wrote:

Following a de novo review of Kaitly’s deposition, one can only conclude that her statement characterizing the shooting as accidental is mere speculation. When her deposition is reviewed in its entirety, it is clear she was not privy to the facts which would enable her to testify the shooting was accidental. She stated many times that she did not actually see what occurred and could not remember anything. Her physical location at the scene at the time of the shooting cannot be determined by her testimony. Her deposition testimony consists of her belief as to what occurred rather than on personal knowledge of the events.

Jones v. Estate of Santiago 2003-1424, p. 10 (La.4/14/04); 870 So.2d 1002, 1008-09. Thus, a motion for summary judgment should not be determined based on testimony that is “mere speculation.”

The Fourth Circuit has also addressed speculative testimony used to oppose motions for summary judgment. In Haney v. Delta Petroleum Company, 2001-0636, p. 5 (La.App. 4 Cir. 3/6/02); 811 So.2d 1200, 1204, this court wrote that |insummary judgment “may be appropriate if the non-moving party rests merely upon concluso-ry allegations, improbable inferences, and unsupported speculation.”

We believe that the evidence produced by Paulk is distinguishable from the speculation produced in Jones and Haney. Paulk presented testimony from three witnesses. Some of the testimony presented by Paulk was speculative. Bonefas had no physical evidence to prove the suspicion that a material defect or a fabrication defect caused the accident. The testimony of each witness viewed individually might be considered mere speculation. However, collectively their testimony rises above the level of unsupported or mere speculation.

Bonefas, Cox, and Skaggs all testified that the accident was likely created by some error in construction or composition. Bonefas theorized on some certain knowledge. All three are engineers who performed extensive investigations into the cause of the accident.

• Bonefas testified the accident was caused by one of four reasons. He eliminated one of these, and witness testimony eliminated another, leaving fabrication defects or material defects as the likely cause, which creates liability for Binz.
• Cox also testified that there was no evidence of overloading, and that the initial failure site “revealed abnormal fracture feature and unusual deformation patterns,” which implies fabrication or material defects.
• Skaggs testified that Busch’s testing methods were insufficient to rule out a material defect, fabrication defect, or pre-existing damage to the connection.

Three engineers testified that loading forces did not cause the accident, which leaves fabrication or material defect in the steel as the likely cause of the accident. Steel platforms do not normally collapse. We find that Plaintiff-Paulk’s Inopposition to the motion for summary judgment rests on more than “mere speculation” or “unsupported speculation.” In sum, we find that Paulk presented enough evidence at trial to create a genuine issue of material fact.

Because this issue has been disposed of on the first assignment of error, we pre-termit discussion of Paulk’s other assignment of error regarding the motion for new trial, as well as his additional arguments regarding the first assignment of error.

CONCLUSION

For the reasons above, we find that the trial court improperly granted Binz’s motion for summary judgment.

REVERSED AND REMANDED.'

        . Reynolds v. Select Properties, Ltd., 93-1480, p. 2 (La.4/11/94); 634 So.2d 1180, 1183; Bank One, Nat'l Ass’n v. Velten, 2004-2001, p. 4 (La.App. 4 Cir. 8/17/01); 917 So.2d 454, 457.

      . Two Feathers Enterprises, Inc. v. First Nat’l Bank of Commerce, 98-2004-0467 p. 3 (La. App. 4 Cir. 10/14/98), 720 So.2d 398, 400.

      . La. C.C.P. art. 966.

      . Oakley v. Thebault, 96-0937, p. 3 (La.App. 4 Cir. 11/13/96); 684 So.2d 488, 490.

      . Id.

      . He also found that "The plate designated as A746 failed due to a torsional overload. "The plate designated C758 failed due to an overload twisting moment. No defects were found in the plate or the welding process that could have resulted in this type of failure.” "The web of F757 was sheared by the bolts due to an overload tensile force. No defects were found in the web.”


text:
    SUCCESSION OF Jack BERMAN.
    No. 2005-CA-0641.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 2006.
    John Henry Gniady, Metairie, LA, for Viola Berman.
    Morris B. Phillips, New Orleans, LA, for Samuel Berman.
    Steven E. Bain, Steven E. Bain, L.L.C., New Orleans, LA, for Benjamin Berman.

      Donald L. Hyatt II, Donald L. Hyatt, II APLC, New Orleans, LA, for Saul Ber-man.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   REVERSED

DAVID S. GORBATY, Judge.

11Appellants Viola Berman and Samuel Berman appeal a judgment wherein the last will and testament executed by their father, Jack Berman, was found to be invalid. The sole issue on appeal is whether the trial court erred in finding that Viola unduly influenced her father to change his will. For the following reasons, we reverse.

FACTS:

Jack Berman died testate on August 21, 2001. His wife, Violet, predeceased him by one year, thus leaving his six children as sole legatees. Jack’s estate consisted primarily of a family home on Dela-chaise Street, a business, and a building at 226 Decatur Street from which the business operated.

In 1983, Jack asked Rene Lehmann, an attorney with whom he had consulted previously, to prepare partnership papers for his business, Jack’s Metal Arts, making two of his sons, Saul and Benjamin, partners with him. Saul and Benjamin had worked with their father in the shop since they were | ¡.young, and unlike their brothers, continued to work in and learn the business into adulthood. Jack also asked Mr. Lehmann to prepare wills for him and his wife, Violet.

The will eventually executed by Jack on September 15, 1983, left the family home to his wife, Violet, the business to Saul and Benjamin, and the residual estate to all six children in equal shares. The will recognized the usufruct in favor of Violet, and named Viola as executrix. The building at 226 Decatur was not named in any special bequest and, therefore, formed a part of the residual estate.

In 1991, Jack again contacted Mr. Leh-mann to prepare new wills for Jack and Violet. According to Mr. Lehmann, he had had no professional contact with Jack from 1983 until that time. After meeting with Jack, Mr. Lehmann prepared a draft will for him wherein Jack bequeathed the family home to Violet, his partnership interest to Saul and Benjamin, the Decatur building in a trust entitled “The Jack Ber-man Testamentary Trust,” and his residual estate to Samuel, Viola, Saul, Bernard and Benjamin. Viola and Saul were named as co-trustees of the trust, and Viola was named as executrix, with Saul to serve in her stead. Jack disinherited his son, Nathan, for non-communication with his father. However, that will was never executed. Instead, Jack executed a new will on September 30, 1991. Mr. Lehmann also prepared a document giving Saul power-of-attorney, which was executed on September 26,1991.

[aThe 1991 will again left the family home to Violet, Jack’s partnership interest in the business to Saul and Benjamin, the Decatur building to Saul and Benjamin in equal shares, and his residual estate to Samuel, Viola, Saul, Bernard and Benjamin. The will made no provisions for a testamentary trust. Saul was named as executor, with Viola to serve in his stead. Nathan was disinherited.

According to Mr. Lehmann, he had no further professional contact with Jack after the execution of the will on September 30,1991.

On April 24, 2000, Mr. Lehmann received an e-mail from Viola requesting a copy of her father’s will. She was specifically interested in provisions concerning the Decatur building. Mr. Lehmann replied that he could not comply without written consent from her father. On May 15, 2000, Paula George sent a release signed by Jack for a copy of his 1991 will. Mr. Lehmann complied with the request.

One year later on April 26, 2001, Mr. Lehmann again was contacted by e-mail from Viola in which she reported that her father believed his will to be wrong because he intended to leave the Decatur building to all six of his children. Further, her father wanted her to have power-of-attorney. Mr. Lehmann requested Viola have her father and mother make an appointment to discuss these matters. Viola replied that her mother was now deceased, and had left her half interest in the Decatur building to Saul and Benjamin. Mr. Lehmann suggested that perhaps Saul and Benjamin could renounce their legacy; otherwise, there was nothing that could be done. Viola then told Mr. Lehmann that attorney Paula George had drawn up a new will for |4Jack, and that Jack had already signed it. Viola asked Mr. Leh-mann if he thought the new will was valid. Mr. Lehmann responded that he believed it was, and told Viola that Paula George was a good attorney.

According to Viola, she first asked Ms. George, an acquaintance from synagogue, about her father’s desire to change his will. She testified that many times over the years, she had discussed her parents’ wishes with them. After her mother’s death, she asked Ms. George to help get a copy of her father’s will. Ms. George prepared a release for Jack to sign, which was forwarded to Mr’ Lehmann. After receiving the will, Viola explained to her father that his will left the Decatur building to Saul and Benjamin. Jack said that was wrong because he intended to leave the Decatur building to all six children. In reference to an e-mail Viola had sent to Mr. Lehmann, she was asked if she believed her father loved her more than his sons. Viola responded no, because her father’s intention was to leave his estate to his children equally.

Benjamin Berman testified that his father told him after a meeting with Mr. Lehmann that he was leaving the building to him and Saul. During the last year of his father’s life, Jack never mentioned changing his mind. Benjamin claimed that Viola had always treated their father badly, often yelling at him and calling him stupid. Benjamin testified that he had lived with his parents until he was 33 years old. Saul continued to live with them a few years beyond the time he moved out; Viola always lived with her parents.

|BSaul Berman worked with his father since his teens, and by 1980 was participating fully in the business. He had discussed the contents of Jack’s 1991 will with him. He also was aware of a letter sent by Mr. Lehmann to Jack in 2001 explaining changes in. the heirship laws. Saul stated that his father was superstitious about death, and did not want to discuss his own demise, so he did not respond to Mr. Lehmann’s letter. Saul admitted that he requested his father inform him about any decisions made that affected the business. Saul also claimed that Viola badgered their father.

Following Jack’s death, Ms. George filed a petition to probate the 2001 will, and to have Viola appointed executrix in accordance with the will’s provisions. One of Viola’s first actions was to sell the family home, which had been left to Samuel, Nathan, Bernard and Viola in equal shares. Viola obtained an appraisal of $125,000, and sought to buy the house herself. Benjamin and Samuel opposed the sale claiming that the house had been drastically undervalued. After several court hearings, and additional appraisals and negotiations, the heirs finally agreed to allow Viola to buy the house for $153,000 “as is.”

Viola filed additional tableaus of distribution, which were also opposed by at least one of her brothers. Finally, on June 14, 2002, Benjamin filed a Petition to Annul Probated Testament, claiming that the will was not in proper form and that Viola had unduly influenced her father into changing his will. Saul eventually joined Benjamin as a plaintiff.

| fiFollowing a trial, the court invalidated Jack’s 2001 will agreeing with Benjamin and. Saul that Viola had indeed exerted undue influence on her father causing him to change his previously executed will.

DISCUSSION:

The only issue oh appeal is whether Viola Berman unduly influenced her father into changing his will.

Louisiana Civil Code art. 1479 provides: A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the doñee or other person for the volition of the donor.

The revision comments explain that the first step in determining undue influence is to ascertain whether the donor had capacity to donate. La. Civ.Code art. 1479, Revision Comments-1991(b). There is nothing in the record before us to indicate that Jack Berman lacked the capacity to make a will. Although there was testimony that Jack was a “people pleaser” and that his physical health began to decline after his wife’s death, there was no testimony to indicate his mental capacity was impaired. Indeed, Paula George was of the opinion that “no one could influence Jack Berman. He had a mind of his own, and he knew what he wanted to do, ... he was going to say what was on his mind and what he wanted to do.”

The revision comments further explain that the term “undue influence” is difficult to define. Physical coercion and duress fall within the article’s attempted description; however, more subtle influences, such as creating resentment toward a natural object of a testator’s bounty by false |7statements, may constitute the kind of influence that is prohibited. The comments indicate that “[m]ere advice, or persuasion, or kindness and assistance, should not constitute influence that would destroy the free agency of a donor and substitute someone else’s volition for his own.” Id. The influence is defined “as being that of the donee or some other person in order to avoid a challenge based solely on the workings of the donor’s own mind without pressure from someone else. It seems obvious that the influence has to be exercised with the object of procuring a particular gift or bequest.” La. Civ.Code art. 1479, Revision Comments — 1991(c).

Louisiana Civil Code art. 1483- provides in pertinent part: “A person who challenges a donation because of fraud, duress, or undue influence, must prove it by clear and convincing evidence.” Further, the factual findings of the trial court, in will contest cases, are afforded great weight and will not be upset on appeal absent manifest error. Succession of Fellman, 96-1738 (La.App. 4 Cir. 8/6/97), 698 So.2d 477, 480; Succession of Armstrong, 93-2385 (La.App. 4 Cir. 4/28/94), 636 So.2d 1109, 1111.

The trial court herein issued reasons for judgment in which it considered the following facts to be clear and convincing evidence of undue influence upon Jack Ber-man by his daughter, Viola:

1. Prior to the execution of the contested will, Jack had signed two other wills prepared for him by his “regular attorney” Rene Lehmann;
2. Viola attempted to obtain a copy of her father’s will from Mr. Lehmann, and eventually engaged the help of Paula George to do so;
|¾3. Viola requested Ms. George draft a new will for her father, and Viola was present at all meetings between Jack and Ms. George;
4. Jack discussed with Ms. George changing the provision of his will regarding ownership of the Decatur Street building; however, Ms. George also changed the provision by which Jack disinherited his son Nathan;
5. The witnesses to the will were procured several weeks prior to signing by someone other than Jack. Further, the witnesses to the will signing saw Ms. George discussing the will with Jack, but did not hear the actual reading of the will prior to signing;
6. Viola requested that Ms. George correct typographical errors contained in the first will prepared by Ms. George and executed by Jack; and
7. There was no dispute that Jack wanted his sons, Benjamin and Saul, to own the business.

“When seeking to annul a donation on the basis of undue influence, it is not sufficient to merely show that the do-nee exercised some degree of influence over the donor; instead, the challenger must show that the donee’s influence was so substantial that the donee substituted his or her volition for that of the donor.” Emphasis added. Succession of Gilbert, 37,047 (La.App. 2 Cir. 6/5/03), 850 So.2d 733, 736. “To annul a testamentary disposition based on undue influence, the influence must be operative at the time the testament is executed.” Succession of Gilbert, supra; Succession of Deshotels, 98-1467 (La.App. 4 Cir. 5/12/99), 735 So.2d 826.

IflAfter a thorough reading of the record, we find that the trial court committed manifest error when it found that Viola exerted undue influence upon Jack, thereby causing him to change his previous testament. The trial court’s reasons for its finding simply do not rise to the level required for such a finding, particularly in light of the fact that the evidence in this situation must be clear and convincing.

The trial court found that Viola had influenced her father to change his will because Jack had previously executed two other wills, both prepared by his “regular” attorney, Rene Lehmann. First, it is not unusual for people to change their wills, particularly over a twenty-year period. Second, according to Mr. Lehmann, he was not Jack’s “regular” attorney, considering that from approximately 1975 until 1991, they only had business together on three or four occasions. Additionally, the changes Jack made from the 1983 will to the 1991 will were significant, and are indicative of Jack’s volition to dispose of his estate as he desired. For example, in 1983 Jack wished to leave the family home to his wife, business only to Saul and Ben, expressly stating that the legacy did not include the building, and his residual estate to all six children in equal shares. He named Viola as his executrix. In August of 1991, Jack had a will prepared for him whereby he bequeathed the family home to his wife, the business to Saul and Benjamin, the building in trust, with Viola and Saul as co-trustees, and the remainder of his estate to five of his children, disinheriting Nathan. However, for some reason not of record, Jack never did execute that will, but, rather, one month later executed a will leaving the family home to his wife, the business to ImSaul and Benjamin, the building to Saul and Benjamin in equal shares, and his residual estate to five of his children. He again disinherited Nathan, but changed his executor to Saul, then Viola. These changes indicate that Jack had significant issues with his children and that he exercised his right to change his mind about his estate.

The trial court also relied on the fact that Viola enlisted the help of another attorney to get a copy of her father’s 1991 will. Clearly, the fact that Viola first contacted Mr. Lehmann on her own assuming that she had some right to see her father’s will, indicates her ignorance of the law and attorney/client relationships. The fact that she sought the help of another attorney to get a copy of her father’s will is not unusual, nor does it indicate some sinister plot to shut out her siblings. In fact, a whole year passed from Violet’s first contact with Mr. Lehmann and the sécond, suggesting there was no rush to get Jack’s will changed.

The trial court also reasoned that because Viola was present at all meetings between Jack and Ms. George and that Ms. George changed provisions in the will regarding Jack’s previous disinhersion of his son, Nathan, this was further proof that Violet unduly influenced her father. The record contains ample testimony that Jack was no longer driving himself during the period in question. Additionally, it is clear from the record that Viola drove her father to and attended synagogue with him every weekend. It was at synagogue that the meetings with Ms. George would take place. Further, in the opinion of this Court, the fact that the contested will revoked Jack’s previous disinhersion of Nathan bolsters Viola’s contention that her Infather wished to make things equal among his children. There is no testimony of record one way or another concerning why Jack at one point disinherited Nathan, nor is there any testimony to suggest that the father and son did not reconcile at some point. Lastly, jurisprudence suggests that the undue influence must be operative at the time the testament is executed. Succession of Gilbert, supra. There is no evidence that Viola was present when Ms. George was discussing the will with Jack prior to his signing.

The trial court’s reliance on the fact that witnesses were procured weeks before the signing and that Jack had no participation in their procurement is misguided. It is not unusual for attorneys such as sole practitioners to arrange for additional persons to be present for will signings, or to arrange for witnesses to attend signings at hospitals, nursing homes, etc. The fact that the testator does not know the witness or did not ask the witness himself to sign is of no moment.

In its reasons for judgment, the trial court pointed out that the witnesses to the will did not hear an actual reading of the will, but they did see Ms. George discussing it with Jack. Louisiana Civil Code art. 1577 does not require that the will be read to the testator, or that the will be read in the presence of the witnesses. The revision comments indicate that the testator himself does not have to read the testament prior to signing. Louisiana courts have frequently observed that “... signatures to obligations are not mere ornaments. If a party can read, it behooves him to examine an | ^instrument before signing it;.... ” La. Civil Code art. 1577, Revision Comments — 1997(f), citing Snell v. Union Sawmill Company 159 La. 604, 105 So. 728 (1925). Although there is testimony that Jack had never mastered the English language and that he had a grade school education at best, there is no evidence that Jack was illiterate and thereby incapable of reading the will. The trial court noted that the witnesses indicated Ms. George at least explained the provisions of the will to Jack prior to his signing.

Viola’s request that Ms. George correct typographical errors contained in the will was considered by the trial court as evidence of undue influence. There is no evidence that anything of substance was changed. Saul and Benjamin argue that Ms. George did not discuss with Jack his previous disinhersion of Nathan, yet in the contested will Nathan was not excluded, suggesting that this change was made at Viola’s request. Ms. George explained that she knew Saul and Benjamin had received their mother’s half of the community-owned partnership interest following her death. Under the terms of Jack’s previous will, Saul and Benjamin were to receive Jack’s half interest also. Therefore, with instructions from Jack to equalize the distribution of his estate, she prepared the will as it was eventually executed, not as Viola instructed.

The last factor relied on by the trial court was that there was no dispute that Jack wanted his sons, Benjamin and Saul, to own the business. This factor does not determine that Viola unduly influenced Jack. The finding by the trial court indicates that it considered the business and the |1sbuilding from which the business operated to be one entity. To the contrary, in Jack’s 1983 will he specifically noted that the business which he left to Saul and Benjamin did not include the building in which the business was housed. Jack changed his mind about the building from his 1983 will to the August 1983 draft will to the 1991 will. Ten years later he changed his mind again.

Accordingly, we find that the trial court was manifestly erroneous in its finding that Viola unduly influenced her father’s decision to change his last will and testament. The record is void of any evidence that Viola attempted to gain a particular gift or bequest for herself; rather, it is more likely based on the evidence that she helped to facilitate her father’s true wishes, i.e., to distribute his estate in an equitable manner to all six of his children.

For the foregoing reasons, we reverse the judgment of the trial court and reinstate the last will and testament of Jack Berman dated May 13, 2001.

REVERSED.

      . Because all of the parties bear the surname Berman, we shall heretofore refer to the parties by their first names.

      . It is unclear whether this was a general power-of-attomey for personal matters, or if it was business related.

      . There is some discrepancy in Viola’s testimony, to-wit: she first requested a copy of her father's will in April of 2000; her mother did not die until August of 2000.

      . The article does require that the notary and witnesses execute a declaration indicating that the testator declared or signified that the instrument is his testament, and that the testator signed the document on each page. The contested will does not contain such a declaration, however, that issue was not raised in the trial court and is, therefore, not before this Court.


author: SMITH, Chief Justice, DIAZ, Justice,

text:
    Dewey W. SMITH and Sylvia G. Smith v. Hattie CRAWFORD.
    No. 2004-CT-00257-SCT.
    Supreme Court of Mississippi.
    July 20, 2006.
    Rehearing Denied Sept. 21, 2006.
    Thomas Henry Freeland, III, Oxford, Thomas A. Coleman, Jackson, attorneys for appellants.
    Timothy D. Moore, Jackson, attorney for appellee.
   ON WRIT OF CERTIORARI

SMITH, Chief Justice,

for the Court.

FACTS AND PROCEDURAL HISTORY

¶ 1. This case on certiorari arises from a personal injury action filed by Dewey and Sylvia Smith against Hattie Crawford. Dewey Smith and Hattie Crawford were involved in a motor vehicle accident. Because Crawford admitted fault, there was no issue as to responsibility for the accident. The only issue at trial was the amount of damages owed.

¶2. During trial, Crawford’s attorney stated during his closing argument that “while Mrs. Crawford wanted the Smiths to be compensated for any damages that were caused by her admitted negligence, she did not want to pay for or be responsible for any damage which her negligence did not cause.” The Smiths’ attorney did not object to this statement when it was made. Instead, the Smiths’ attorney responded in kind during his own closing argument by saying: “I covenant with the jury that not a dime of any sum the jury might award the Smiths would come from the pocket of Mrs. Crawford.”

¶ 3. Crawford objected to the statement made by the Smiths’ counsel and asked for a mistrial, which the circuit judge denied. Instead, the circuit judge instructed the jury to disregard the statement made by the Smiths’ counsel. At the close of trial, the jury awarded the Smiths $3,213 in damages. The Smiths appealed, arguing that the trial court’s instruction to the jury to disregard the statement constituted reversible error and that their motion for a new trial should have been granted.

¶4. The Court of Appeals, in a 5-3-1 decision, reversed and remanded for a new trial, stating because Crawford’s statement was an impermissible reference to liability insurance, the Smiths’ statement was a justified response, and thus the trial judge erred when he told the jury to disregard Smith’s statement. Smith v. Crawford, 937 So.2d 451, 452-54, 2005 WL 2140858, 2005 Miss.App. LEXIS 601 at *6-10. Aggrieved, Crawford timely filed a petition for certiorari, which this Court granted.

STANDARD OF REVIEW

¶ 5. The issue on appeal is whether the Court of Appeals properly reversed the circuit judge’s order denying the Smiths’ motion for a new trial. The standard of review for considering a trial court’s decision denying a motion for a new trial is whether the trial court abused it discretion. Pool ex rel. Poole v. Avara, 908 So.2d 716, 726 (Miss.2005); Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31, 55 (Miss.2004).

ANALYSIS

I. WHETHER THE COURT OF APPEALS ERRED WHEN IT CLASSIFIED A STATEMENT MADE BY DEFENSE COUNSEL AS AN IMPERMISSIBLE REFERENCE TO INSURANCE COVERAGE.

¶ 6. As the Court of Appeals correctly pointed out, there are numerous Mississippi cases which stand for the proposition that references to liability insurance are generally impermissible and constitute reversible error. See Jackson v. Daley, 739 So.2d 1031, 1039 (Miss.1999); Morris v. Huff, 238 Miss. 111, 117-20, 117 So.2d 800, 802-03 (1960); Snowden v. Skipper, 230 Miss. 684, 697, 93 So.2d 834, 840 (1957); Avent v. Tucker, 188 Miss. 207, 225-26, 194 So. 596, 602 (1940); Herrin v. Daly, 80 Miss. 340, 341-42, 31 So. 790, 791 (1902).

¶ 7. However, this Court has made one exception to this general prohibition. Where a defendant makes an impermissible statement intimating that he does not have insurance, the plaintiff is justified to inform the jury just the opposite. Snowden v. Webb, 217 Miss. 664, 674-76, 64 So.2d 745, 750-51 (1953). In Snowden, the defense counsel told the jury that any verdict returned would have to be paid out of his client’s wages. Id. at 674, 64 So.2d at 750. Plaintiffs counsel then informed the jury that “not one cent of this would come out ,of Mr. Snowden’s pocket or wages.” Id. at 674, 64 So.2d at 749. The trial court sustained the defense’s objection and instructed the jury to disregard the remark. Id. at 676, 64 So.2d at 751. On appeal, this Court held that the response by plaintiffs counsel was justified and did not constitute reversible error, especially since the circuit judge instructed the jury to disregard the statement. Id.

¶ 8. Contrary to the Court of Appeals’ finding, we find the statement by Crawford’s attorney did not rise to the level of language used by the defendant’s attorney in Snowden. The statement made by Crawford’s attorney did not intimate that Crawford lacked insurance, but instead simply suggested that “Crawford, like any defendant, did not want to be held responsible for damages which she did not cause.” Smith, 937 So.2d at 455, 2005 WL 2140858, at *4 (Lee, P.J., dissenting). But see Morris, 238 Miss, at 119-120, 117 So.2d at 802-03 (question by plaintiffs counsel as to whether the owner of an automobile would have to pay a judgment, as well as a statement by plaintiffs counsel that “the [owners] will not have to pay one penny even though they own the truck” was improper and constituted reversible error.) Furthermore, the Court of Appeals’ holding has an unintended effect of preventing a defendant from arguing that she should not be held responsible for preexisting damage or damage she did not cause. Smith, 937 So.2d at 455, 2005 WL 2140858, at *4 (Lee, P.J., dissenting).

¶ 9. The decision in Snowden was based on the finding that the defendant’s statement was an impermissible reference to liability insurance. Snowden, 217 Miss. 664 at 676, 64 So.2d at 750. Here, we find Crawford’s attorney did not reference liability insurance. Thus, the comment by Crawford’s defense counsel did not open the door to discussing the issue of insurance. As such, the remark by the Smiths’ counsel was improper, contrary to the Smiths’ assertion based on Snowden. Because the facts in the case at bar are distinguishable, the holding in Snowden is not applicable to this case.

¶ 10. The next question becomes whether the response by the Smiths’ attorney, “I covenant with the jury that not a dime of any sum the jury might award the Smiths would come from the pocket of Mrs. Crawford,” constituted reversible error. Normally, a party’s reference to or intimation that the other party carries or is without liability insurance is improper and constitutes reversible error. However, because we find the comment made by Crawford’s attorney was not a reference to insurance, the Smiths’ argument, that the trial judge erred when he instructed the jury to disregard the Smiths’ statement of their counsel, is without merit. Moreover, if this Court were to find that the remark by the Smiths’ attorney constitutes reversible error, this Court would effectively allow the Smiths to benefit from their own mistake, as the Smiths originally appealed the circuit judge’s ruling.

CONCLUSION

¶ 11. This Court finds that the Snow-den case is not applicable to the ease at bar. Unlike Snowden, the comment made by defense counsel in the case at bar did not constitute a reference or insinuation that the defendant either carried or lacked insurance. Therefore, the remark made by plaintiffs’ counsel was improper. Finding no abuse of discretion on the part of the circuit judge, we reverse the judgment of the Court of Appeals and reinstate and affirm the trial court’s judgment.

¶ 12. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED, AND THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

WALLER AND COBB, P.JJ., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J.

DIAZ, Justice,

Dissenting:

¶ 13. Because I agree with the Court of Appeals that defense counsel’s statement constituted an impermissible reference to liability insurance, I respectfully dissent. As noted by this Court, when a defendant implies that she lacks liability insurance, the plaintiff is entitled to correct the statement. Snowden v. Webb, 217 Miss. 664, 675-76, 64 So.2d 745, 750-51 (1953). In this case, the statement by Crawford’s counsel clearly indicated that she was without insurance. Any reasonable juror would have interpreted the words “pay for or be responsible for” to mean that Crawford would be personally liable for any damages. As such, the plaintiff should have been permitted to “remove the sting and effect of such an argument.” Id. at 676, 64 So.2d at 751. The trial court committed reversible error by instructing the jury to disregard the reply of counsel for the plaintiffs. For these reasons, I would uphold the decision of the Court of Appeals to reverse and remand.

GRAVES, J., JOINS THIS OPINION.

      . The facts presented here come largely from those noted by the Mississippi Court of Appeals. See Smith v. Crawford, 937 So.2d 451, 452, 2005 Miss.App. LEXIS 601, at *1-3 (Miss.Ct.App. Sept. 6, 2005).

      . The court reporter was not present for closing arguments, so there is no transcript of exactly what each attorney said. However, both parties agree that those statements were substantially similar to what appears here and in the Court of Appeals’ opinion.


author: IRVING, J., LEE, P.J.,

text:
    Dewey W. SMITH and Sylvia G. Smith, Appellant v. Hattie CRAWFORD, Appellee.
    No. 2004-CA-00257-COA.
    Court of Appeals of Mississippi.
    Sept. 6, 2005.
    Rehearing Denied Jan. 17, 2006.
    Thomas Henry Freeland, Thomas A. Coleman, Jackson, attorneys for appellant.
    Timothy D. Moore, Jackson, attorney for appellee.
    Before KING, C.J., IRVING and BARNES, JJ.
   IRVING, J.,

for the Court.

¶ 1. This appeal arises from a personal injury action by Dewey and Sylvia Smith against Hattie Crawford. At the trial below, Crawford’s.attorney suggested during his closing argument that Crawford did not have liability insurance in that she would be personably responsible for paying whatever amount the jury determined that she owed. The Smiths’ attorney then told the jury during his closing argument that Crawford would not personally pay for any judgment against her. The trial judge instructed the jury to disregard this statement. Feeling aggrieved, the Smiths now appeal, asserting that the judge’s instruction to the jury to disregard the statement constituted reversible error. We agree and reverse and remand for a new trial consistent with this opinion.

FACTS

¶ 2. Dewey Smith and Hattie Crawford were involved in a motor vehicle accident. There is no issue as to responsibility for the accident because Crawford admits the accident was her fault. Therefore, the only issue below was as to damages. During closing argument, Crawford’s attorney stated that “while Mrs. Crawford wanted the Smiths to be compensated for any damages that were caused by her admitted negligence, she did not want to pay for or be responsible for any damage which her negligence did not cause.” The Smiths’ counsel did not object to this statement when it was made, but chose instead to respond in kind during his own closing argument by saying: “I covenant with the jury that not a dime of any sum the jury might award the Smiths would come from the pocket of Mrs. Crawford.” Crawford objected to this statement and asked for a mistrial. The trial court did not grant a mistrial, but did instruct the jury to disregard the statement. At the close of the trial, the jury awarded Smith $3,213 in damages. Smith’s wife also alleged damages due to loss of consortium, but the jury awarded her nothing. The Smiths appeal, contending that the court’s instruction to the jury to disregard the statement constitutes reversible error and that their motion for a new trial should have been granted.

STANDARD OF REVIEW

¶ 3. Since the Smiths are appealing from an order denying their motion for a new trial, the standard of review is whether or not there was an abuse of discretion in failing to grant a new trial. Sports Page, Inc. v. Punzo, 900 So.2d 1193(¶ 10) (Miss.Ct.App.2004) (citing Redhead v. Entergy Miss., Inc., 828 So.2d 801(¶ 11) (Miss.Ct.App.2001)).

ANALYSIS AND DISCUSSION OF THE ISSUES

¶4. Although there are numerous cases addressing the impermissibility of references to liability insurance in Mississippi, there is no case directly on point with the issue now before us. Under well-established Mississippi law, references to liability insurance are generally impermissible and constitute reversible error. See Jackson v. Daley, 739 So.2d 1031(¶ 27) (Miss.1999); Morris v. Huff, 238 Miss. 111, 117-20, 117 So.2d 800, 802-03 (1960); Snowden v. Skipper, 230 Miss. 684, 697, 93 So.2d 834, 840 (1957); Herrin v. Daly, 80 Miss. 340, 341-42, 31 So. 790, 791 (1902); Toche v. Killebrew, 734 So.2d 276(¶21) (Miss.Ct.App.1999). This prohibition includes not only references or intimations to the jury by a plaintiff that a defendant carries liability insurance (and thus the jury should feel free to return a large judgment for the plaintiff), but also references or intimations by a defendant that he lacks insurance (and thus will have to pay out of his own pocket any judgment returned by the jury). Avent v. Tucker, 188 Miss. 207, 225-26, 194 So. 596, 602 (Miss.1940).

¶ 5. Mississippi case law has also established that when an impermissible reference is made by the defendant intimating that he has no insurance, the plaintiff is justified in responding in kind by informing the jury that the defendant will not personally pay the judgment rendered. Snowden v. Webb, 217 Miss. 664, 674-76, 64 So.2d 745, 750-51 (1953). In Snowden, the defendant’s counsel told the jury that any verdict returned would come out of his client’s wages. Plaintiffs counsel did not object when this statement was made, but instead told the jury: “And [defendant’s counsel] said to you that any verdict would come out of Mr. Snowden’s wages. I covenant with you gentlemen that not one cent of this would come out of Mr. Snowden’s pocket or wages.” Id. at 674, 64 So.2d 745, 64 So.2d at 749. At that time, the defendant objected. The trial court sustained the objection and instructed the jury to disregard the remarks by plaintiffs counsel. Id., 64 So.2d at 749-50. After trial, the defendant appealed the judgment on the grounds that a mistrial should have been granted due to the remark by plaintiffs counsel. The Mississippi Supreme Court held that the remarks by plaintiffs counsel were justified and thus did not constitute reversible error, especially since the judge instructed the jury to disregard the remarks. Id. at 675-76, 64 So.2d at 750-51. Thus, Snowden established that plaintiffs counsel is justified in responding in kind when a defendant improperly tells the jury that he has no insurance, but did not reach the question now before this court: does a trial court’s instruction to a jury to disregard a justified remark • by plaintiffs counsel constitute reversible error?

¶ 6. The statement by Crawford’s counsel that she “did not want to pay for or be responsible for any damage which her negligence did not cause” constituted an impermissible reference to liability insurance. Counsel for the Smiths then made a tactical decision by choosing not to object to this statement. The Smiths’ counsel instead waited until his own closing argument, when he told the jury that Crawford would not personally have to pay for any portion of any judgment returned against her. Under Snoivden, the Smiths’ counsel was justified in making this remark: Crawford’s counsel had opened the door to such an attack during his own closing argument by making an impermissible intimation to the jury that his client would be personally paying for any judgment returned against her. The trial judge was therefore clearly incorrect when he told the jury to disregard the remark made by the Smiths’ counsel. The question that remains is whether this error constitutes reversible error.

¶ 7. “It would be manifestly unfair to permit a defendant in a damage suit to show that he carried no insurance and whatever verdict was rendered would be enforced upon him personally.” Avent, 188 Miss. 207, 194 So. at 602. Any intimation that a defendant will have to personally pay creates a serious risk that a jury will diminish whatever damages it renders because of sympathy for the defendant. The court in Snowden found that “[counsel for plaintiff had to do something to remove the sting and effect of such an argument and his reply was invited by the remarks of counsel for defendant. We think he was justified in saying to the jury just what he did say....” Snowden, 217 Miss, at 676, 64 So.2d at 751. Counsel for the Smiths was similarly justified in making the statement that he did during the case sub judice. Therefore, the court should not have told the jury to exclude the statement. Doing so constituted an abuse of the trial court’s discretion and reversible error, as it allowed Crawford’s intimation that she possessed no liability insurance to stand before the jury alone without any response from the Smiths.

¶ 8. Crawford asks us to find that the jury’s award is most likely based on other evidence in the record. While this may be true, it is not the place of this court to attempt to reach inside the minds of the jurors and guess what they were thinking as' they chose their judgment. On the record before us, reversible error was committed when the Smiths’ response to Crawford’s impermissible argument was excluded.

¶ 9. The dissent argues that we misinterpret the meaning of Crawford’s attorney’s statement. In the view of the dissent, the statement “does not intimate that Crawford lacked insurance.” The dissent views the statement as nothing more than an indication “that Crawford, like any defendant, did not want to be held responsible for damages which she did not cause.” Apparently, the dissent overlooks the fact that Crawford admitted liability, as well as the undisputed fact that the Smiths suffered some damages as a result of Crawford’s negligence. If Crawford’s attorney really was arguing that the damages claimed by the Smiths were caused by someone else, then surely he would not have admitted liability, or if he was trying to make the argument that only a part of the Smiths’s damages was caused by Crawford, then surely he would have restricted his argument accordingly. The language — while Mrs. Crawford wants the Smiths to be compensated for any damages that were caused by her admitted negligence, she does not want to pay for or be responsible for any damage which her negligence did not cause — is, in our opinion, clear and unambiguous: Would a reasonable interpretation of the statement lead an ordinary and reasonable person to believe that Crawford would personally pay for the damayes that her negligence did cause, thus indicating that she did not have liability insurance to cover the damages? We think so.

¶ 10. For the foregoing reasons, this case is reversed and remanded for a new trial on damages only.

¶ 11. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS HEREBY REVERSED AND REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., CHANDLER, BARNES AND ISHEE, JJ., CONCUR. LEE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES, P.J., AND MYERS, J. GRIFFIS, J., NOT PARTICIPATING.

LEE, P.J.,

Dissenting.

¶ 12. While I agree with the majority that under Mississippi law it is reversible error to insinuate that a party either possesses or lacks insurance, I do not agree that the actions of Crawford’s attorney rise to the level of the actions of the attorneys in the cases relied upon by the majority, and I must respectfully dissent.

¶ 13. The majority relies upon Snowden v. Webb, 217 Miss. 664, 674-76, 64 So.2d 745, 750-51 (1953), wherein the defendant’s attorney told the jury in closing arguments that any verdict would have to be paid out of the defendant’s wages. The plaintiffs attorney rebutted this statement with a promise that “not one cent of this would come out of Snowden’s pocket.” As the majority correctly notes, the Mississippi Supreme Court opined that the plaintiffs attorney did not err in retaliating with his promise that Snowden would not personally have to pay the damages.

¶ 14. Nevertheless, I do not agree that the statement by Crawford’s attorney that Crawford “did, not want to pay for or be responsible for any damage which her negligence did not cause” rises to the level of the language used by the defendant’s attorney in Snowden. This statement does not intimate that Crawford lacked insurance; the statement clearly indicates that Crawford, like any defendant, did not want to be held responsible for damages which she did not cause. The majority argues that I overlook the fact that Crawford admitted liability, as well as the fact that Smith suffered some damage as a result of Crawford’s negligence. Regardless of the fact, that Crawford admitted liability and that it is clear that Smith suffered injury, do these facts preclude Crawford from arguing that she only wants to be held responsible for the damage she caused? The logical extension of the majority’s holding is that a defendant may not argue to the jury that she should not -be held responsible for pre-existing damage or even damage she did not cause.

¶ 15. I disagree that this statement presented an impermissible inference which would necessitate action by Smith’s attorney to “remove the sting and effect” of the argument. Quite simply, there was no sting.

¶ 16. It logically follows that because Crawford’s attorney did not open the door to discussing the issue of insurance, the comment by Smith’s attorney was improper, and the trial court correctly instructed the jury to disregard the statement.

¶ 17. I am reminded of our standard of review as succinctly stated by the majority: we review to determine whether there was an abuse of discretion in failing to grant a new trial. Sports Page, Inc. v. Punzo, 900 So.2d 1193(¶ 10) (Miss.Ct.App.2004). However, I am also reminded that we are to give great deference to the trial court’s ruling on a motion for new trial, and “we will only reverse if the verdict shocks the conscience of the court or represents a miscarriage of justice.” Id. Such is not presented in the case sub judice.

¶ 18. Accordingly, I must respectfully dissent.

BRIDGES, P.J., AND MYERS, J., JOIN THIS SEPARATE WRITTEN OPINION.

      . Crawford later withdrew her motion for a mistrial.