text:
    William H. GREGORY, deceased, by and through his Co-Executors, William H. GREGORY, Jr., and Robert Hood Gregory; and Betty Sue Gregory v. CENTRAL SECURITY LIFE INSURANCE COMPANY, successor in interest to Andrew Jackson Life Insurance Company.
    No. 2005-CA-01825-SCT.
    Supreme Court of Mississippi.
    April 5, 2007.

      William R. Couch, Richard Joseph La-jaunie, and Grant M. Fox, Tupelo, attorneys for appellants.
    Thomas Wicker, Tupelo, attorney for ap-pellee.
    Before SMITH, C.J., CARLSON and RANDOLPH, JJ.
   RANDOLPH, Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. This appeal arises out of a dispute over two insurance policies purchased by William and Betty Sue Gregory (“the Gregorys”). The Gregorys seek to hold liable Central Security Life Insurance Company (“Central Security”), which purchased the assets of an insolvent insurer, Andrew Jackson Life Insurance Company (“Andrew Jackson”), for the alleged tor-tious activities of Andrew Jackson.

¶ 2. On January 5, 1984, the Gregorys were sold two life insurance policies by an agent of Andrew Jackson, Earl Wayne Stevens (“Stevens”). Stevens is not and has never been an employee or agent of Central Security. The policy listed Kathy Etheridge (“Etheridge”), the Gregorys’ daughter, as both the owner and beneficiary of the policies. The Gregorys claim Stevens represented to them that these policies were “vanishing premium” policies. The vanishing premium concept is that after a certain period of time the policy will accumulate value sufficient to pay the premiums. The Gregorys claim this was a strong selling point for them and that when they purchased the policies, they understood they would have to pay premiums of $9,000 a year for five to seven years and then the premium payments would “vanish.” However, the record reflects that on May 10, 1989, Etheridge (at the Gregorys’ home address), received a letter from Andrew Jackson stating interest rates had dropped since the policy was pm-chased, and that in order to sustain the Gregorys’ coverage, additional premiums would have to be paid.

¶ 3. Subsequently, Andrew Jackson became insolvent and was liquidated. Central Security entered into an Agreement for Assumption Reinsurance (“Agreement”) with the National Organization of Life and Health Insurance Guaranty Associations (“NOLHGA”) to perform certain contractual obligations of Andrew Jackson arising on or after January 1,1993. These “Covered Obligations” included: “[T]he obligations of such guaranty association for the performance of the contractual obligations of AJL, which pursuant to its state governing law, as the result of the insolvency of AJL, have arisen in connection with the insurance policies and annuities of AJL.” (emphasis added).

¶ 4. In 2001, the Gregorys received a notice from Central Security that stated that in order to continue their policies, the Gregorys would be required to pay additional premiums as a result of declining interest rates. In 2002, the Gregorys filed a Complaint against Central Security, as successor in interest to Andrew Jackson, and Stevens. In their Complaint, the Gregorys averred that Stevens individually made false and misleading representations to them in a deliberate attempt to induce the Gregorys to purchase the policies. The Gregorys claimed all defendants engaged in false and misleading sales representations. Further, the Gregorys alleged in their Complaint the following:

(1) All Defendants fraudulently misrepresented the performance of their policies; (2) All Defendants fraudulently concealed material facts regarding the vanishing premium concept; (3) Andrew Jackson intentionally failed to properly train and supervise its agents; (4) Central Security knew, or reasonably should have known at the time it assumed the Gregorys’ insurance policy, of the fraudulent and misleading representations, but has continually failed to take any action to correct the misrepresentations or to compensate the Gregorys; (5) Andrew Jackson and Central Security engaged in a deliberate course of conduct which concealed from the Gregorys the nature and extent of the deceptive sales practices; (6) That the actions of Andrew Jackson and Central Security constituted a breach of contract, negligent misrepresentation, fraud, fraudulent representation, fraudulent inducement, unjust enrichment, and/or fraudulent concealment.

¶ 5. The Gregorys also demanded judgment against Central Security and Stevens jointly and severally in a total sum to include punitive damages and all costs of the action. Although they alleged several issues in their Complaint, the only conceivable claim the Gregorys could have against Central Security is for breach of contract.

¶ 6. Stevens filed an Answer, individually, claiming any actions he took in selling the policies were in connection with the representation, solicitation, sale or service of products of Andrew Jackson solely while he was acting in the course and scope of his employment as an agent of Andrew Jackson. Stevens claimed he in good faith relied on information provided to him by-Andrew Jackson and that if any statements he made were incorrect or false, Stevens was not aware of this and reasonably believed them to be true and correct. Stevens asserted various defenses and demanded that the Complaint against him be dismissed. Additionally, Central Security filed an Answer and Defenses. Central Security asserted that upon entering the Agreement to assume the policies of Andrew Jackson, it did not assume any liability based on actions or events prior to the date the policies were assumed or any liability arising out of or relating to any act or omission of Andrew Jackson or its agents.

¶ 7. On November 23, 2004, Central Security filed a Motion to Dismiss or in the alternative, Motion for Summary Judgment. Central Security asserted, inter alia, that its involvement with the policies did not occur until eight years after the issuance of the policies and Central Security had no involvement with the sale or issuance of the policies. Further, Central Security claimed the Complaint should be dismissed pursuant to Mississippi Rules of Civil Procedure 12(b)(6) and 17 for failure to join the real party in interest, Ether-idge, the sole owner and beneficiary of the policy. Stevens joined in Central Security’s Motion. The Gregorys filed a Response to Central Security’s Motion, stating they had standing to bring the action because they purchased the policies and they were the ones to whom the misrepresentations were made.

¶ 8. In 2005, the parties appeared in the Circuit Court of the Second Judicial District of Chickasaw County to argue Central Security’s Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. The trial court issued an Order of Summary Judgment for Central Security, finding that Central Security was not responsible for any misrepresentations or omissions of Andrew Jackson and that the Gregorys failed to demonstrate any genuine issue of material fact. The Order of Summary Judgment stated that the cause against Central Security was fully and finally dismissed. The order does not mention Stevens.

¶ 9. The Gregorys filed a Motion to Reconsider the Order Granting Summary Judgment, to which Central Security filed a Response. The Motion to Reconsider was denied by order of the trial court. It is from the denial of this motion that the Gregorys appeal.

¶ 10. The Gregorys present the following issues for appeal:

I. Whether the lower court erred in finding, as a matter of law, that Cen- ■ tral Security bore no responsibility for any misrepresentations or omissions of Andrew Jackson or its agents.
II. Whether the Gregorys failed to show the existence of any genuine issues of material fact with regard to wrongful conduct including breach of contract, negligent and/or fraudulent misrepresentation, negligence, unjust enrichment and/or fraudulent concealment by Central Security.

¶ 11. However, the issue for this Court to address is whether the lower court erred in finding, as a matter of law, that Central Security bore no responsibility for any misrepresentations or omissions of Andrew Jackson or its agents, as this was the only issue addressed by the trial court in its Order. Therefore, our analysis is restricted to that issue.

FACTS OF THE CASE

¶ 12. On January 5, 1984, the Gregorys purchased two life insurance policies for Betty Sue Gregory. In his deposition, William testified he purchased two, because his wife convinced him the amount of the first policy would not be enough to divide among their children. William stated he was sold these policies by Stevens, who was a long-time friend. William knew Stevens was an agent for Andrew Jackson at the time the policies were sold. William stated that Stevens showed them documents illustrating that they would only be making $9,000 annual payments for five to seven years. William testified he did not have those documents anymore, therefore he was not able to submit them in discovery. The Gregorys designated their daughter, Etheridge, as both the owner and beneficiary of the policies.

¶ 13. The policies stated that premiums were due for life. The first policy issued stated the annual premium would be $3,730. The second policy stated an annual premium rate of $5,582.50. Further, in both policies, the section entitled “Payment of Premiums,” states “Premiums are due annually in advance. They are payable (a) for the number of years shown on page 3; and (b) while the insured is alive....” The number of years shown on page 3 of both policies reveals, “Number of Years Payable: Life.” Nowhere in the policies does it state the premiums will “vanish” or that William will no longer have to make payments after five to seven years.

¶ 14. William testified he received documents and annual reports at his home, which were addressed to Etheridge, from Andrew Jackson and Central Security. William testified he kept the documents in a file for Etheridge, and that at times, William and Etheridge did discuss the policies. However, William testified he did not read the policies, nor any documentation that he received from Andrew Jackson. William testified that at the end of seven years, he no longer heard from Stevens and stopped making payments.

¶ 15. Subsequently, Andrew Jackson became insolvent. In 1992, the Chancery Court for the First Judicial District of Hinds County entered an Order of Rehabilitation, naming the Insurance Commissioner for the State of Mississippi as Reha-bilitator. On March 26, 1993, an Order of Liquidation was entered by the chancery court.

¶ 16. However, prior to the Order of Liquidation, on March 3, 1993, Central Security entered into the Agreement concerning Andrew Jackson. In this Agreement, Central Security assumed responsibility for the “Covered Obligations” of Andrew Jackson.

¶ 17. A Policy Amendment was sent by Central Security to all Andrew Jackson policyholders which was to be attached to and made part of the existing Andrew Jackson policy. The Policy Amendment stated, inter alia, that “[w]henever the name Andrew Jackson Life Insurance Company is used in the policy, it is hereby amended and the name Central Security Life Insurance Company is hereby substituted (subject to the conditions below).” The Policy Amendment listed these conditions: “CSL has not assumed and is therefore not liable for any other risk, obligation, indebtedness, or liability of [Andrew Jackson], [National Organization of Life and Health Insurance Guaranty Associations], or any other party.”

¶ 18. In 2001, the Gregorys received notice from Central Security that, due to declining interest rates, they would need to make additional premium payments. William testified that he contacted Central Security about the need for additional premium payments. The Gregorys began making premium and lump sum payments on their first policy. In 2003, the Grego-rys began doing same for their second policy. After contacting Central Security and being informed interest rates had gone down, and he would need to pay additional premiums, William stated he contacted an attorney. William testified that he continued to pay the premiums so the policy would not lapse, but because of his age, it was very difficult to do so. He also said, had he known the premiums would not vanish, he would not have purchased that policy. William testified he also called the Insurance Commissioner’s office when he received the notice he would have to pay the additional premiums. William stated the Insurance Commissioner’s office told him he would have to fill out a complaint form. William testified he did not fill out the complaint form, but instead went to an attorney.

STANDARD OF REVIEW

¶ 19. “We employ a de novo standard of review of a trial court’s grant or denial of summary judgment and, examine all the evidentiary matters before it, [such as] admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” Hurdle v. Holloway, 848 So.2d 183, 185 (Miss.2003). Furthermore, “[t]he evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party.” Moore ex rel. Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658, 663 (Miss.2002) (citation omitted).

ANALYSIS

I. Whether the lower court erred in finding, as a matter of law, that Central Security bore no responsibility for any misrepresentations or omissions of Andrew Jackson or its agents.

¶20. The Gregorys assert that Central Security assumed responsibility for the misrepresentations of Andrew Jackson when Central Security issued the Policy Amendment stating that the name Central Security was to be substituted for the name Andrew Jackson anywhere it appeared in the policy. The Gregorys argue that Central Security held itself out to policyholders as continuing the same coverage issued by Andrew Jackson.

¶ 21. The Gregorys assert that Central Security meets the requirement of successor liability through the “product-line theory” recognized by this Court in Huff v. Shopsmith, 786 So.2d 383, CCH Prod. Liab. Rep. P 16,099 (Miss.2001).

¶ 22. “The product line theory is a deviation from the traditional rule ‘based largely on the idea that the successor corporation is, like the predecessor, in a position to assume the risk-spreading role assigned to the manufacturer of a product by strict liability theory.’ ” Paradise Corp. v. Amerihost Development, Inc., 848 So.2d 177, 180 (Miss.2003) (quoting Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 174 (5th Cir.1985)).

¶ 23. Central Security asserts it cannot be held liable under the product-line theory as this case is not one of strict liability or personal injury and the product in this case is an insurance contract, governed by contract law. Furthermore, Central Security argues that the insurance contract is not defective. Central Security further argues it does not meet the requirements set out in Huff, as “Central Security is a completely separate entity that assumed certain statutory obligations not of Andrew Jackson, but of the Mississippi [Life and Health Insurance Guaranty] Association.”

¶ 24. The crux of the Gregorys’ argument is that Central Security held itself out to the public as a mere continuation when it sent the Policy Amendment to policyholders stating Central Security’s name should be substituted for the name Andrew Jackson.

¶ 25. Central Security responds by stating it did not assume any liability of Andrew Jackson, but assumed only the limited statutory obligations of the guaranty associations, which will be discussed infra. Further, Central Security states that the Policy Amendment, as well as the Agreement, disclaimed liability for “any other risk, obligation, indebtedness or liability of AJL, NOHLGA, or any other party.”

¶ 26. This Court finds Central Security does not meet any of the four criteria of the product-line theory as enumerated by this Court in Huff. Additionally, the Greg-orys put forth no evidence which showed Central Security knew anything about the policy or the procurement of same other than the language of the contract. The policy, which William testified he did not read, unequivocally stated premiums would be due for life. Nowhere in the policy is there language which states premiums would vanish or that they would be due for only five to seven years. “Our law requires this Court to accept the plain meaning of a contract as the intent of the parties where no ambiguity exists.” A & F Props., LLC v. Madison County Bd. of Supervisors, 933 So.2d 296, 301 (Miss.2006).

¶ 27. Central Security was not liable for the acts or omissions of Andrew Jackson or Stevens, as pursuant to statute, Central Security did not assume any obligations outside of the Covered Obligations. In an amicus curiae brief submitted by the Mississippi Life and Health Insurance and Guaranty Association (“MLHGA”) and NOLHGA, these organizations state the following:

Pursuant to the Agreement for Assumption Reinsurance between NOLHGA and Participating Life and Health Insurance Guaranty Associations and Central Life Insurance Company concerning Andrew Jackson Life Insurance Company in Liquidation, Central Security assumed only the statutory obligations of MLHGA to policyholders of Andrew Jackson Life Insurance under the express terms of the Assumption Agreement. ... [T]he statutory obligations of MLHGA include certain of the policy contract obligations of an insolvent insurer, but do not include any extra-contractual obligations, such as liability for the tortious conduct of the insolvent insurer. Therefore, since MLHGA could not transfer more obligations than it had, neither Central Security nor any insurer could assume liability for the insolvent insurer’s torts.

(emphasis added).

¶ 28. In Title 83, Chapter 23 of Mississippi Code Annotated, the Legislature provided protection for policyholders against insolvent insurers, as well as set forth guidelines for guaranty associations and companies which subsume insolvent insurers. Miss.Code Ann. § 83-23-203(1) (Rev. 1999) states:

The purpose of this article is to protect, subject to certain limitations, the persons specified in Section 83-23-205(1) against failure in the performance of contractual obligations, under life and health insurance policies and annuity contracts specified in Section 83-23-205(2), because of the impairment or insolvency of the member insurer that issued the policies or contracts.

Further, Miss.Code Ann. § 83-23-205(2)(b)(x)(emphasis added) holds,

(b) This article shall not provide coverage for:
(x) An obligation that does not arise under the express written terms of the policy or contract issued by the insurer to the contract owner or policy owner, including without limitation:
1. Claims based on marketing materials;
2. Claims based on side letters, riders or other documents that were issued by the insurer without meeting applicable policy form filing or approval requirements;
3. Misrepresentations of or regarding policy benefits;
4. Extra-contractual claims; or
5. A claim for penalties or consequential or incidental damages; and....

¶ 29. Central Security also asserted that Section 3.2 of the Agreement entitled it to the defenses provided for the guaranty associations pursuant to Miss.Code Ann. § 83-23-231. Miss.Code Ann. § 83-23-231 states:

There shall be no liability on the part of and no cause of action of any nature shall arise against any member insurer or its agents or employees, the association or its agents or employees, members of the board of directors, or the commissioner or his representatives, for any action or omission by them in the performance of their powers and duties under this article. Such immunity shall extend to the participation in any organization of one or more other state associations of similar purposes and to any such organization and its agents or employees.

¶30. “Whatever the Legislature says in the text of the statute is considered the best evidence of the legislative intent.” MDOT v. Allred, 928 So.2d 152,155 (Miss.2006). Further, “[i]t is our duty to interpret the statutes enacted by the Legislature, and to neither broaden [n]or restrict the legislative act.” Id. at 156. The Legislature has clearly provided safeguards for the insured, as well as the guaranty associations and companies which subsume insolvent insurance companies, and we are bound to follow the statute. This Court agrees with NOLHGA and MLHGA that allowing claims such as the Gregorys’

to be maintained against insurers that assume policies from life and health insurance guaranty associations for the purpose of protecting policyholders would have serious practical consequences. The ability of guaranty associations to fulfill their statutory obligations in the most efficient manner and in the best interest of policyholders would become significantly more difficult and expensive if not impossible in certain cases.

CONCLUSION

¶ 31. The Gregorys’ claims fail as Central Security, under the Agreement and pursuant to statute, assumed no liability caused by any alleged fraudulent misrepresentations of Andrew Jackson or its agents. The trial court did not err in granting summary judgment in favor of Central Security.

¶ 32. AFFIRMED.

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

      . A third policy was purchased, but that policy is not at issue in this case.


source: Caselaw Access Project

author: GRIFFIS, J.,

license: Public Domain

text:
    Jerry McGEE, Appellant v. STATE of Mississippi, Appellee.
    No. 2003-KA-01686-COA.
    Court of Appeals of Mississippi.
    Oct. 25, 2005.
    Rehearing Denied Feb. 7, 2006.

      Thomas W. Powell, attorney for appellant.
    Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.
    Before LEE, P.J., GRIFFIS and ISHEE, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Jerry McGee was convicted of two counts of armed robbery. Hinds County Circuit Court Judge James E. Graves, Jr. sentenced McGee, as an habitual offender, to serve a life sentence without parole in the custody of the Mississippi Department of Corrections. McGee filed a motion for a judgment notwithstanding the verdict or, in the alternative a new trial, which was denied.

¶2. On appeal, McGee asserts the following error: (1) ineffective assistance of trial counsel, (2) the trial court erred in denying motion to compel or to dismiss the indictment for prosecution’s failure to produce exculpatory evidence, (3) the trial court erred in not declaring a mistrial after jury viewed a poorly redacted confession that contained other bad acts, which unduly prejudiced defendant, (4) the trial court erred in sentencing McGee as an habitual offender without conducting a hearing to determine McGee’s status as an habitual offender, (5) the habitual offender sentence was contrary to the jury verdict and trial court’s pronouncement of sentence, (6) the trial court erred in allowing the State to seek habitual offender sentencing, (7) McGee’s state and federal rights to a speedy trial were violated, (8) the trial court erred in overruling McGee’s Batson challenges and failed to require race and gender neutral reasons for peremptory challenges by the State, (9) the trial court failed to give jury instructions during the sentencing phase, and (10) the trial court failed to instruct the jury on an element of robbery. We find error due to the prosecutor’s clear gender discrimination in jury selection. Accordingly, we reverse McGee’s conviction and remand for a new trial.

FACTS

¶ 3. On January 4, 2000, McGee approached two women with an unloaded .12 gauge pistol grip shotgun, which was wrapped up in a yellow cloth. He demanded their money. The women testified they never saw the gun, but they could tell it was a gun under the yellow cloth. The women screamed and ran, and McGee grabbed one of their purses. A nearby security guard heard the screams and saw McGee running toward him with a purse. When the guard gave chase, McGee threw the purse at the guard. The guard tackled McGee, and the shotgun fell to the ground.

¶4. The guard was able to restrain McGee until police arrived. A Jackson police officer testified that he saw the shotgun on the ground with a yellow cloth wrapped around the handle. He retrieved the gun but left the yellow cloth. McGee signed a confession but denied that he ever exhibited the shotgun or pointed it at the victims.

¶ 5. McGee was indicted during the January 2000 term of the grand jury, but was never arraigned. On March 8, 2001, McGee wrote a letter to the trial court administrator requesting a speedy trial. McGee’s trial began on September 6, 2001. A mistrial was declared because of a hung jury. The case went to trial a second time on September 24, 2001 resulting in a conviction.

ANALYSIS

I. Was there a violation of Batson v. Kentucky for race and gender discrimination?

¶ 6. We begin our review with the issue that causes us concern. McGee, who is African-American, argues the trial court should have granted his Batson challenge based on racial discrimination. On appeal, McGee also claims that the trial judge should have sua sponte raised the issue of gender discrimination. The State, argues that there was no error in the denial of the challenge on the basis of race discrimination. The State also claims that McGee failed to object on the basis of gender discrimination, and McGee is now barred from raising gender discrimination on appeal. Chase v. State, 645 So.2d 829, 843-44 (Miss.1994). Because we find there was impermissible gender discrimination, we do not reach the issue of racial discrimination.

¶ 7. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) is a landmark ease in jury selection. Batson established a three-part test for a defendant to make out a prima facie case of purposeful discrimination in jury selection. The defendant must show:

(a) that he is a member of a cognizable racial group;
(b) that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race; and
(c) that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.

Id. at 96, 106 S.Ct. 1712. Once the defendant does so, the prosecutor is then required to provide a non-racial reason for exercising the challenge. The court may accept the reasons given and allow the challenge.

¶ 8. In J.E.B. v. Alabama, 511 U.S. 127, 141, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), Batson was extended to protect against gender discrimination. See Duplantis v. State, 644 So.2d 1235, 1246 (Miss.1994). Accordingly, the State may not keep a person off the jury simply because of that person’s gender. J.E.B., 511 U.S. at 141,114 S.Ct. 1419.

¶ 9. McGee raised a Batson challenge during voir dire. McGee alleged that the State was impermissibly striking African-American jurors. The court asked the prosecutor for race-neutral reasons, one-by-one, for all the African-Americans she struck:

Ms. Wooten: Your Honor, on panel number 5 juror number 4, Mr. Washington. I actually liked him. He has a college education, is well-educated except for the fact that his brother apparently was convicted in a drug trial in Madison County, and that did give me some concern. That was the reason I struck him.
The Court: But Ms. Deandrea’s [another juror] mama was convicted of a drug crime in Hinds County. You didn’t strike her.
Ms. Wooten: I agree, Your Honor.
The Court: Tell me the difference between her and a black man whose [brother was convicted].
Ms. Wooten: Well, Your Honor, it’s difficult to take it on a juror by juror basis. I took these jurors as a whole. There weren’t any specific things other than the way they — like I said with Mr. Washington, it concerned me that his brother was in Madison County.
The Court: But Ms. Deandrea’s mama being convicted didn’t concern you?
Ms. Wooten: And, Your Honor, the reason I don’t like trying to do these Batson challenges piecemeal is because it’s difficult because there are going to be jurors as we go along throughout this panel that I absolutely accept that are African-Americans that have relatives that have convictions. So it’s difficult for me to explain in one case when—
The Court: Right now all I’m asking you is explain why you weren’t concerned about Ms. Deandrea’s mother who has this conviction for a drug offense.
Ms. Wooten: Your Honor, that did concern me. The other reason — and it had nothing to do with Mr. Washington’s race, it’s that he’s a male. And I don’t know if gender is discrimination or something, but Ms. Deandrea is a female, so between the two, a female or a male, I would rather have a female, you know, taking criminal convictions, if that family member have [sic] criminal convictions.

(emphasis added). The prosecutor gave gender as her race-neutral reason for striking a juror.

¶ 10. In its brief, the State makes no argument as to how or why this would not be a clear case of gender discrimination. The State provides an argument on why there was no impermissible race discrimination. However, as to gender discrimination, the State relies on Chase v. State to claim that McGee is barred from addressing this issue on appeal because he failed to object at trial on the basis of gender discrimination.

¶ 11. In Chase, the supreme court held that “[n]o objection was raised by Chase to the challenges based on gender and as a consequence that claim is procedurally barred.” Chase, 645 So.2d at 842. The court concluded:

On the question of gender-based discrimination, Chase argues that no gender-neutral explanations were offered for peremptory challenges against women. However, no objection was raised by the defense and no such explanation was requested. Chase concedes that the holding in Batson has not been applied to gender discrimination. The bigger problem is that Chase did not raise this issue at trial and allow the prosecutor an opportunity to respond or give the trial judge an opportunity to make a ruling or finding of fact. This failure alone insures that this issue cannot be the basis of reversal. Chase’s claim of gender-based discrimination in jury selection is procedurally barred on appeal by our rule requiring contemporaneous objection as a prerequisite to preservation of the issue on appeal.
Alternatively considering this assignment on its merits, Chase also does not make a case for purposeful exclusion of women. The reasons given by the prosecutor for exercising the peremptory challenges on five of the women were not only race neutral, they were also gender neutral. Chase also used seven of his peremptory challenges, more than the prosecution, to exclude women from the jury. Despite the exclusion of women by both sides, the jury panel ultimately consisted of a majority of women. Chase’s assignment fails not only for failure to preserve the issue, but also for failure of any supporting proof.
In addition to the other considerations, it should also be pointed out that the prosecutor only used a total of eight peremptory challenges. This considerably weakens any argument by Chase. If the prosecutor were intent on purposeful discrimination based on either race or gender, then the additional challenges could have been used to exclude blacks or women who ultimately served on the jury.

* * *

This assignment of error is without merit and procedurally barred, in part.

Id. at 843-44.

¶ 12. Interestingly, Chase was decided on February 24, 1994, and J.E.B. was decided on April 19, 1994. On October 27, 1994, the Mississippi Supreme Court recognized J.E.B. “extends Batson protection to gender.” Duplantis, 644 So.2d at 1246. The significance, of course, is that Chase was decided before the United States Supreme Court extended the protections of Batson to gender. Hence, gender-based discrimination was not prohibited when

Chase was decided. Thus, the State’s citation to Chase does not control our decision here.

¶ 13. Our courts have held that the failure of defense counsel to offer an objection, on the basis of Batson, may procedurally bar our consideration of that issue on appeal. Weeks v. State, 804 So.2d 980, 987 (¶ 11) (Miss.2001); Blue v. State, 674 So.2d 1184, 1212 (Miss.1996) (rev’d on other grounds). Nevertheless, in Foster v. State, 639 So.2d 1263, 1289 (Miss.1994), the court held that a “defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal.” Our courts have allowed the review of errors that were not first brought to the attention of the trial court, where the error affected substantial rights of the defendant. Grubb v. State, 584 So.2d 786, 789 (Miss.1991); Mitchell v. State, 788 So.2d 853, 855 (¶ 9) (Miss.Ct. App.2001). The plain error doctrine includes the review of errors that “seriously affect[] the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770,123 L.Ed.2d 508 (1993).

¶ 14. The plain error doctrine guides our decision here. The prosecutor’s race-neutral reason for striking a juror was a blatant admission of gender discrimination. In the prosecutor’s words:

The other reason' — and it had nothing to do with Mr. Washington’s race, it’s that he’s a male. And I don’t know if gender is discrimination or something, but Ms. Deandrea is a female, so between the two, a female or a male, I would rather have a female, you know, taking criminal convictions, if that family member have [sic] criminal convictions.

(emphasis added). Clearly, the State’s preemptory challenges evidence gender discrimination.

¶ 15. When finding a violation under Batson, we often remand for a Batson hearing. Manning v. State, 735 So.2d 323, 341 (¶ 34) (Miss.1999). Since we do not consider the question of discrimination disguised by pretext, there is no need to remand for further hearing on the Batson violation. Id. The State admitted to gender discrimination in open court. This casts doubt on the integrity of the entire process, and we find that it deprived McGee of a fair trial. Accordingly, we reverse and remand this case for a new trial.

¶ 16. As a result of our decision, many of the remaining issues are now moot, and we will not address the issues that may request resentencing or a new trial. We now consider only those remaining issues that may require the indictment to be dismissed.

II. Should the trial court have compelled production of the yellow cloth or have dismissed the indictment for failure to preserve exculpatory evidence?

¶ 17. McGee also argues the State failed to preserve exculpatory evidence, the yellow cloth that was wrapped around the shotgun at the time of the robbery. McGee claims that if the'cloth was such that the witnesses were not aware of nor afraid of the weapon, then he is only guilty of strong-arm robbery. Even though the cloth was wrapped around the handle of the shotgun when police discovered it, the cloth was left behind. The State counters that the exculpatory nature of the cloth was not apparent at the time and comparable evidence was available.

¶ 18. The State may be guilty of a due process violation when it fails to preserve exculpatory evidence. Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). To violate due process:

(1) the evidence ... must possess an exculpatory value that was apparent before [it] was destroyed;
(2) the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means; and
(3) the prosecution’s destruction of the evidence must have been in bad faith.

State v. McGrone, 798 So.2d 519, 523 (¶ 11) (Miss.2001). Generally, a defendant must prove bad faith. Id. at (¶ 12). However, if the police or the State engage in a course of conduct which makes it impossible for a defendant to prove it, bad faith will be found. Id.

¶ 19. McGee does not argue that the police officer acted in bad faith when he left behind the yellow cloth. McGee has the obligation to prove bad faith unless the State made this proof impossible. For example, in McGrone, the defendant subpoenaed police officers to determine if they had destroyed or lost exculpatory evidence in bad faith. Id. Each officer failed to obey the subpoena. Id. The McGrone court held that “[t]he State may not, through the police officers’ intentional actions, negate the only means the defendant has for proving a due process violation.” Id.

¶ 20. The record here does not reveal a course of conduct on the part of the police or State which impeded McGee’s ability to prove bad faith. In this case, the police officer who failed to retrieve the yellow cloth testified at trial. He testified he was unaware of the cloth’s significance and had no ill motive in not securing it. Since there is no basis for a finding of bad faith, there is no need to continue our inquiry. We need not consider whether the cloth was exculpatory nor whether McGee had access to comparable evidence. We find that this issue has no merit and affirm the trial court on this issue.

III. Was McGee denied his right to a speedy trial?

¶ 21, McGee argues he was denied his state and federal rights to a speedy trial, because over 600 days elapsed between his arrest and trial. He claims prejudice in the delay because of the loss of a witness. The State counters that McGee caused the delay and was not prejudiced.

A. McGee’s state right to a speedy trial

¶22. In Mississippi, criminal defendants must be tried within 270 days of arraignment, unless good cause is shown by the State. Miss.Code Ann. § 99-17-1 (Rev.2000). The problem presented here is that McGee was never arraigned. Explicit waiver of arraignment may also be used to trigger the state right. Felder v. State, 831 So.2d 562, 570 (¶ 22) (Miss.Ct. App.2002). Since McGee neither was arraigned, nor ever explicitly waived arraignment, the statute was never triggered. Perry v. State, 419 So.2d 194, 198 (Miss.1982). Where the state right is not triggered, it is not violated. Id. McGee was not denied his state right to a speedy trial.

B. McGee’s federal right to a speedy trial

¶ 23. McGee’s federal right to a speedy trial is guaranteed by the Sixth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment. Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The federal right attaches when defendant is first accused, either through arrest, indictment, or information. Smith v. State, 550 So.2d 406, 408 (Miss.1989). To assess a violation of the Sixth Amendment, this Court follows the federal test set out in Barker v. Wingo. Fleming v. State, 790 So.2d 888, 890 (¶ 5) (Miss.Ct.App.2001). The Court considers four factors: (1) the length of delay, (2) reasons for the delay, (3) whether defendant asserted his rights, and (4) prejudice to the defendant. Id.

1. Length of delay

¶ 24. First, we examine the length of the delay. Only if the delay is presumptively prejudicial, do we go on to the other Barker factors. Barker, 407 U.S. at 530, 92 S.Ct. 2182. A delay of eight months or longer is presumptively prejudicial. Atterberry v. State, 667 So.2d 622, 626 (Miss.1995).

¶ 25. McGee was first “accused” on the day of his arrest, January 4, 2000. He was not tried until September 6, 2001. A mistrial was declared in his first trial, and he was tried again on September 24, 2001. Since we are dealing with two trials, we must analyze the time periods separately to see if both were constitutionally speedy. Brengettcy v. State, 794 So.2d 987, 992 (¶ 8) (Miss.2001). The total delay between McGee’s arrest and first trial was 611 days. This delay raises a presumption of prejudice and requires us to continue the Barker analysis as to the first trial setting. Id. at (¶ 12). The total delay between the mistrial and the second trial was eighteen days. This second delay is not presumptively prejudicial and, therefore, our inquiry ends as to the second trial. Id. at 992-93(¶ 12).

2. Reasons for delay

¶ 26. Second, we look for the reasons for the delay. The State bears the burden of securing a speedy trial and of justifying any delay. DeLoach v. State, 722 So.2d 512, 517 (¶ 17) (Miss.1998); Turner v. State, 383 So.2d 489, 490 (Miss.1980). A defendant cannot complain of a delay that he caused. Poole v. State, 826 So.2d 1222, 1228 (¶ 17) (Miss.2002) (citing Perry v. State, 419 So.2d 194, 199 (Miss.1982)). Where the State either causes the delay or cannot otherwise justify a delay, this counts against the State. Lee v. State, 759 So.2d 1264, 1268 (¶ 21) (Miss.Ct.App.2000).

¶27. McGee was arrested January 4, 2000, and the first trial was not held until September 6, 2001. The record is silent as to the reason for this delay. The State offers no valid reason for the delay. It accuses McGee of stalling by hiring and firing his attorneys. The record belies this assertion.

¶ 28. While McGee did engage in a series of hiring and firing of attorneys, this did not occur until after he was convicted. He only changed counsel once before trial. He wrote Judge Graves asking that his first attorney be fired from his case. This was granted October 13, 2000, well in advance of any notice of trial setting in the record. The docket entries indicate September 6, 2001, was the first date the case was set for trial. The State has the burden of justifying this 611 day delay. Having failed to do so, this delay weighs against the State.

3.McGee’s assertion of the right

¶ 29. Third, we consider whether McGee asserted his right to a speedy trial. A defendant’s “assertion of his speedy trial right ... is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Barker, 407 U.S. at 531-32, 92 S.Ct. 2182. On March 8, 2001, McGee wrote a letter to Judge Graves’s court administrator requesting a speedy trial.

¶ 30. The State counters that this is not good enough, because it was not a formal motion. All that is required is that McGee request a speedy trial. There is no requirement as to form. The supreme court held that a letter written to the sheriff asking for a speedy trial was good enough to assert the right. Perry, 419 So.2d at 199. A letter to the constable asking for a speedy trial counts as an assertion. Hill v. Wainwright, 617 F.2d 375, 379 (5th Cir.1980). We hold that a letter to the judge’s office asking for a speedy trial setting satisfies the requirement as well.

¶ 31. Although McGee did assert his right, he did not do so until one year, two months and four days after his arrest. The supreme court has weighed this factor against a defendant when he waited one year to assert his Sixth Amendment right, and we find also that McGee’s failure to assert his right until over a year weighs against him. Smith, 550 So.2d at 409. We keep in mind that this is but one factor and is not fatal to McGee’s claim. Id.

Jf. Prejudice to McGee

¶ 32. The final Barker factor considers prejudice to the defendant. “Prejudice is assessed in light of the interests which the speedy trial right was designed to protect.” Barker, 407 U.S. at 532, 92 S.Ct. 2182. These include such interests as “to prevent oppressive pretrial incarceration, to minimize anxiety and concern of the accused and to limit the possibility that the defense will be impaired.” Id. When there is a presumptive prejudice, it is incumbent upon the State to prove there is no prejudice. Anderson v. State, 874 So.2d 1000, 1008 (¶ 34) (Miss.Ct.App.2004). “Nevertheless, if the defendant fails to show actual prejudice to his defense, this prong of the Barker balancing test cannot weigh heavily in his favor.” Id.

¶ 33. McGee argues he was prejudiced by the loss of a witness. This witness was Officer Gray, one of the responding police officers. McGee argues that Gray “could have testified about the size of the yellow cloth” to help prove the victims were not aware of nor afraid of a weapon. McGee offers no basis for concluding that Officer Gray would have supported his defense theory, only that he “could have.”

¶ 34. There is nothing in the record to show that Officer Gray was unavailable to testify. McGee merely asserts that he no longer works for the Jackson Police Department. Nowhere does McGee indicate his efforts to secure Officer Gray’s presence at trial. In fact, no subpoena was ever issued to require Officer Gray to appear at trial. McGee cannot show his defense was impaired by Officer Gray’s absence, if McGee cannot show that he actually wanted Officer Gray to testify.

¶ 35. In addition, the record does show that McGee was in jail from the date of his arrest through the trial. Oppressive incarceration is one of the evils against which the Sixth Amendment was designed to protect. However, McGee was convicted in federal court during this time. He was convicted on September 22, 2000, as a felon in possession of a firearm and was sentenced to serve fifty-one months in federal prison. Therefore, he was not actually prejudiced by oppressive incarceration in this case, since for the great majority of the time, he was imprisoned on another charge. McGee is left only with the presumption of prejudice assessed in the first factor. This factor weighs lightly against the State.

5. Balancing the factors

¶ 36. We balance the Barker factors considering the totality of the circumstances. “[T]hey are related factors and must be considered together with such other circumstances as may be relevant.” Barker, 407 U.S. at 533, 92 S.Ct. 2182. The length and reasons for the delay weigh against the State. The assertion of the right weighs against McGee. Even though he made a valid assertion, it came well beyond one year after his arrest. Finally, McGee has failed to show actual prejudice by the delay in this case. Given the lengthy delay in asserting his right and the complete absence of actual prejudice, we find that McGee was not deprived of his federal right to a speedy trial. We find this assignment of error is without merit.

¶ 37. THE ORDER OF THE HINDS COUNTY CIRCUIT COURT DENYING DISMISSAL OF THE INDICTMENT IS AFFIRMED. THE JUDGMENT OF CONVICTION OF TWO COUNTS OF ARMED ROBBERY AND LIFE SENTENCE WITHOUT THE POSSIBILITY OF PAROLE, PROBATION, REDUCTION, OR SUSPENSION IS REVERSED AND REMANDED FOR A NEW TRIAL. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, BARNES AND ISHEE, JJ„ CONCUR.


author: CHANDLER, J.,

text:
    PROGRESSIVE GULF INSURANCE COMPANY, Appellant v. WE CARE DAY CARE CENTER, INC., Nathan A. Bonner, Nancy G. Deese and Jessie Deese, A Minor, Appellees.
    No. 2005-CA-00905-COA.
    Court of Appeals of Mississippi.
    Oct. 10, 2006.
    Rehearing Denied March 20, 2007.

      Charles Cameron Auerswald, Richard L. Kimmel, Steven Cavitt Cookston, Greenwood, attorneys for appellant.
    Robin L. Roberts, Hattiesburg, Brandon L. Brooks, Charles Martin Leggett, Waynesboro, attorneys for appellees.
    Before LEE, P.J., CHANDLER and GRIFFIS, JJ.
   CHANDLER, J.,

for the Court.

¶ 1. In this appeal, we are asked to determine whether an automobile insurance policy issued by Progressive Gulf Insurance Company to Bessie Mullins afforded liability coverage for a vehicular accident that occurred on January 15, 2002. Progressive instigated this declaratory judgment action in the Circuit Court of Wayne County against Mullins, Genevieve Lee, We Care Day Care Center, Inc., Nathan Bonner, Nancy Deese, and Jessie Deese, a minor (collectively, We Care). Progressive moved for summary judgment, arguing that an exclusion in the policy defeated coverage. The circuit court found that the exclusion was ambiguous and that coverage existed. The court entered summary judgment in favor of We Care; Progressive appeals.

¶ 2. We find that the exclusion was ambiguous and that, construing the exclusionary language in favor of the insured, coverage existed under the Mullins policy. Therefore, we affirm the grant of summary judgment in favor of We Care.

FACTS

¶ 3. The parties agree that the material facts in this case are undisputed. Bessie Mullins owned a 1993 GMC van insured by Progressive. Genevieve Lee, Mullins’s daughter, was a listed driver on Mullins’s policy. The policy included bodily injury and property damage liability coverage with limits of $10,000 each person and $20,000 each accident for bodily injury and $10,000 each accident for property damage.

¶ 4. We Care Day Care Center, Inc. provided day care services for the elderly. As a regular part of its operations, We Care provided transportation for its clients to and from the day care facility located in Richton, Mississippi. On or about January 15, 2002, We Care hired Lee to drive We Care’s clients. Lee entered into a contract with We Care. The contract stated that Lee was to be paid hourly at minimum wage by We Care for providing transportation services. The evidence established that no mileage reimbursement was contemplated by We Care. Lee received no payment from We Care based on the number of passengers she transported, nor did Lee receive any payment from the passengers themselves. There is no evidence of if or how the passengers whom Lee transported paid We Care for the driving service.

¶ 5. On January 15, 2002, one of We Care’s vehicles was in the auto shop for repair and Orna Hibbler, We Care’s program director, asked Lee to use Mullins’s 1993 GMC van to transport clients. Accordingly, Lee used the GMC van in the course and scope of her employment to drive one of We Care’s - clients, Eunice Bonner, from Richton, Mississippi to Waynesboro, Mississippi. En route, the GMC van struck a vehicle driven by Nancy Deese in which Jessie Deese, Nancy’s minor son, was a passenger. We Care paid Lee, at her hourly wage rate, a total of twenty-eight dollars for the day’s work.

¶ 6. Nathan Bonner commenced an action against Mullins, Lee and We Care for the wrongful death of Eunice Bonner from her injuries sustained in the accident. On July 30, 2003, Progressive filed a “Complaint for Declaratory Judgment” against We Care, Lee, Mullins, Bonner, and Nancy and Jessie Deese. We Care counterclaimed, arguing that, under the Mullins policy, Progressive had a duty to defend and indemnify We Care. Nancy Deese, herself and on behalf of Jessie Deese, asserted a counterclaim against Progressive for damages and a cross-claim against We Care, Lee, and Mullins.

¶ 7. In its complaint, Progressive sought a judgment declaring that there was no coverage under the Mullins policy for any claims arising from the January 15, 2002 accident. Progressive relied upon an exclusion from coverage clause in the Mullins policy, which stated that liability coverage did not apply to:

1. bodily injury or property damage arising out of the ownership, maintenance, or use of a vehicle while being used to carry persons or property for compensation or a fee, including, but not limited to, delivery of magazines, newspapers, food, or any other products. This exclusion does not apply to shared-expense car pools;

On February 7, 2005, Progressive filed a motion for summary judgment arguing that, at the time of the accident, Lee was using the insured vehicle to carry a person for compensation or a fee, an activity excluded from coverage under the above clause.

¶ 8. The trial court observed that no Mississippi court has construed the exclusionary clause at issue in this case. After examining two cases construing similar exclusionary language, the trial court found that the language was ambiguous as applied to the facts of this case. The court stated:

There was no fee per person per trip charged to this court’s knowledge. There is no real definition of compensation or fee to this court’s knowledge. Who is compensating the driver and who is compensating the owner of the day care for the service of the transportation[?] Is the fee for the service included in the day care fee? The court is of the opinion that if the court cannot determine what the terminology of the contract means, then it must be ambiguous. As the court has found that the terminology is ambiguous, then it will be construed in favor of the insured. State Farm Mutual Automobile Ins. Co. v. Scitzs, 394 So.2d 1371, 1372 (Miss.1981).

¶ 9. Progressive appeals, arguing that the exclusionary clause was unambiguous as applied to this case. For the reasons articulated below, we affirm.

STANDARD OF REVIEW

¶ 10. Under Rule 56(c) of the Mississippi Rules of Civil Procedure, a party is entitled to summary judgment if the evi-dentiary matters before the court, including pleadings, depositions, answers to interrogatories, admissions on file, affidavits, etc., demonstrate that.there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. This Court reviews the grant or denial of a summary judgment motion de novo. Mass. Bay Ins. Co. v. Joyner, 763 So.2d 877, 878(¶ 5) (Miss.2002).

LAW AND ANALYSIS

I. DID THE TRIAL COURT ERR IN DETERMINING THAT THE EXCLUSIONARY LANGUAGE WAS AMBIGUOUS WHEN APPLIED TO THE UNDISPUTED FACTS OF THIS CASE?

¶ 11. The interpretation of insurance policy language presents a question of law. Lewis v. Allstate Ins. Co., 730 So.2d 65, 68(¶ 12) (Miss.1998). This Court adheres to well-established rules of construction of insurance contracts. State Farm, 394 So.2d at 1372. We read the policy as a whole, considering all the relevant portions together and, “whenever possible, should give operable effect to every provision in order to reach a reasonable overall result.” J & W Foods Corp. v. State Farm Mut. Auto. Ins. Co., 723 So.2d 550, 552(¶ 8) (Miss.1998). The policy is construed most strongly against the insurer as the drafter of the policy. State Farm, 394 So.2d at 1372; J & W Foods, 723 So.2d at 552(¶ 8). Like other contracts, when an insurance contract is plain and unambiguous, it will be enforced as written. State Farm, 394 So.2d at 1372. Ambiguity is present when policy language is susceptible of two or more reasonable interpretations. Miss. Farm Bureau Cas. Ins. v. Britt, 826 So.2d 1261, 1265(¶ 14) (Miss.2002). In the case of ambiguity, this Court will apply the interpretation favoring the insured, and will determine the intent of the parties to the insurance contract with reference to what a reasonable person in the insured’s position would have understood the terms to mean. J & W Foods, 723 So.2d at 552(¶ 9). When interpreting ambiguous policy language, we will give the words their plain, ordinary, and popular meaning, not a philosophical or scientific meaning. Blackledge v. Omega Ins. Co., 740 So.2d 295, 298(¶7) (Miss.1999). When “there is no practical difficulty in making the language of an insurance contract free from doubt, any doubtful provision in the policy should be construed against the insurer.” State Farm, 394 So.2d at 1372. Nonetheless, where the policy is free from ambiguity, this Court will not adopt a strained interpretation of the policy for the purpose of preventing hardship to the insured. Titan Indem. Co. v. Estes, 825 So.2d 651, 656 (¶¶ 17-18) (Miss.2002).

¶ 12. Additional considerations are implicated when we are confronted with exclusions and limitations to coverage. Our supreme court has pronounced that, while clear and unambiguous policy language will be enforced according to its terms, “recovery cannot be limited by an insurer for benefits for which a premium is paid by an insured, notwithstanding clear and unambiguous language of attempted limitation by the insurer.” Gov’t Employees Ins. Co. v. Brown, 446 So.2d 1002, 1006 (Miss.1984). Clauses in a policy seeking to limit coverage “must be written in clear and unmistakable language” and are strictly construed. Miss. Farm Bureau Mut. Ins. Co. v. Jones, 754 So.2d 1203, 1204(¶ 8) (Miss.2000). But, when stated without uncertainty or ambiguity, exclusionary language is binding upon the insured. Lewis v. Allstate Ins. Co., 730 So.2d 65, 70(¶ 25) (Miss.1998).

¶ 13. Progressive contends that the “carrying persons for compensation or a fee” exclusion in the Mullins policy was free from ambiguity. Progressive argues that the January 15, 2002 accident was specifically excluded from liability coverage because the accident occurred while Lee was using the van to carry a person, Bonner, “for compensation or a fee” in the form of Lee’s wages from We Care. We Care argues that the exclusion was ambiguous because it could signify that there is no coverage anytime payment is received by the insured, or it could signify that there is no coverage only when the passenger provides compensation or a fee in exchange for transportation. Both parties also discuss the meaning and clarity of the words “fee” and “compensation.” As no Mississippi court has construed the “used to carry persons or property for compensation or a fee” exclusion, we have turned to other jurisdictions for guidance. We conclude that the exclusion is capable of two equally reasonable interpretations. Consequently, we give the clause the reading most favorable to the insured and affirm the grant of summary judgment in favor of We Care.

¶ 14. There are numerous cases from other jurisdictions considering similar exclusionary language, especially the more pervasive “used to carry persons or property for a fee” and “used to carry persons or property for a charge” exclusions. See Pizza Hut of America, Inc. v. West Gen. Ins. Co., 36 ArkApp. 16, 816 S.W.2d 638, 639 (1991) (for a fee); U.S. v. Milwaukee Guardian Ins. Co., 966 F.2d 1246, 1247 (8th Cir.1992) (for a charge). We begin our discussion with the two cases relied upon by the trial court. The earlier of these, Travelers Insurance Co. v. State Farm Mutual Automobile Insurance Co., 175 F.Supp. 673 (E.D.La.1959), affd, 274 F.2d 208 (5th Cir.1960), is the sole case that has applied Mississippi law to this type of exclusion. In Travelers, the exclusion provided that State Farm’s policy did not apply while the insured vehicle was being “ ‘used for carrying persons for a charge’ ... ‘but the transportation on a share expense basis in a private passenger automobile of friends, neighbors, fellow employees or school children shall not be deemed carrying persons for a charge.’” Id. at 675. State Farm argued that there was no coverage for an accident that had occurred while the insured was using the vehicle to transport co-employees to a job site. Id. The employer was paying the insured a mileage allowance of $15 for the first seventy-five miles and ten cents per mile thereafter, and State Farm argued that the mileage allowance constituted a “charge” for carrying the passengers. Id. at 674, 675. State Farm argued that the exclusion applied because the mileage allowance was paid by the employer, not by the insured’s co-employees on a shared expense basis. Id. at 675.

¶ 15. The district court disagreed. The court reasoned that the “carrying persons for a charge” and similar exclusions had no application where a car owner was being reimbursed for the use from the employer on a mileage basis; therefore, the fact that the car owner was carrying co-employees while being reimbursed from the employer for mileage should not trigger the exclusion. Id. at 676 (citing Johnson v. Cont’l Cas. Co., 167 So. 114 (La.Ct.App.1936)). In so holding, the district court observed that the “carrying persons for a charge” exclusion was intended to apply to situations where the insured vehicle was being used as a temporary taxi, since several courts had found the “public livery or conveyance” exclusion inapplicable to the vehicle’s use as a temporary taxi. Id. The court further stated:

It is true that there are some other cases interpreting provisions similar to the one here, which exclude coverage where passengers are carried on a casual or informal basis for a charge. But in each of those cases, each passenger paid a specific amount for his carriage. Moreover, even in those cases the authorities are by no means uniform. If the courts cannot with any degree of assurance, or unanimity, interpret exclusion provisions of this kind, that fact alone weighs heavily against the insurer because the fine print of the policy, where ambiguous, is construed in favor of the assured.

Id. (citations omitted).

¶ 16. In the second case, Johnson v. Allstate Ins. Co., 505 So.2d 362 (Ala.1987), Alabama’s supreme court construed similar exclusions contained in the personal automobile insurance policy issued to a day care center operator, Johnson. The day care center, Kiddie Kollege, provided a daily pick-up service to transport children between their homes and the day care center. Id. at 363. Parents desiring to use the service signed a form and paid one dollar each way for the transportation. Id. Johnson provided the use of his van, insured under the personal automobile policy, for the transportation service. Id. During its rounds, the van was involved in an accident and several children were injured. Id. The policy contained an exclusion from liability coverage stating: “ ‘This coverage does not apply to liability for (1) your insured auto while used to carry persons or property for a charge, or any auto you are driving while available for hire by the public. This exclusion does not apply to shared expense car pools. ’ ” Id. at 363-64. The policy also had an exclusion from collision and other coverage stating the coverage did not apply to “ ‘any auto used for the transportation of people or property for a fee’ ” and that “ ‘[t]his exclusion does not apply to shared expense car pools.’ ” Id. at 364.

¶ 17. Johnson argued that the van was not used to carry persons for a charge or for a fee because the one dollar per child each way was used to defray the expenses of operating the van. Id. at 367. The court found that it was irrelevant how the money collected from the passengers was used. Id. The court found four factors to be of central importance: (1) whether the amount charged was definite; (2) whether the amount charged was proportionate to the actual expenses of the trip; (3) whether the amount charged was voluntary as opposed to being paid as consideration to the driver; and (4) whether the driver and passengers were engaged in a common enterprise. Id. The court found that the one dollar per child each way was paid as consideration to Johnson, was unrelated to Johnson’s actual expenses, and that the payment was not made to further any common enterprise between Johnson and the students. Id. Therefore, the court concluded, Johnson was transporting paying passengers for a set fee, an activity within the scope of the policy exclusions. Id.

¶ 18. We Care distinguishes Johnson from this case because, in Johnson, the passengers paid a set fee for transportation to and from the day care center and here there is no evidence that We Care’s elderly clients paid anything for the transportation service. We Care argues that this case is more like Travelers, where the “for a charge” exclusion was held ambiguous when the employer paid an employee for using his own car to drive himself and others. Progressive contends that Travelers is distinguishable from this case because, in Travelers, the policy excluded from coverage carrying persons “for a charge,” while the Mullins policy excluded from coverage carrying “persons for compensation or a fee.” Progressive argues that the “compensation or a fee” language unambiguously excludes from coverage the insured’s transportation of persons while being paid any money, including an hourly wage.

¶ 19. The facts before us are that Lee was paid an hourly wage for driving We Care’s clients. She did not receive a mileage reimbursement. We Care’s clients did not pay anything for the transportation. Nor was Lee paid by We Care on a per-client or a per-trip basis. These facts parallel neither Travelers, where the insured was paid a mileage reimbursement from the employer to transport co-employees to a job site, nor Johnson, where the insured received one dollar per trip from each passenger. Here, Lee’s employer paid her an hourly wage to transport We Care’s non-paying clients. To resolve the quandary presented by the “used to carry persons or property for compensation or a fee” exclusion as applied to this case, we find helpful the precedent construing this type of exclusion in the context of pizza delivery, which sometimes involves an hourly wage earned by the deliverer and no set delivery charge.

¶ 20. In the typical pizza delivery case, an employee of a pizza seller is involved in an automobile accident while delivering pizzas and the question presented is whether the accident was covered under the employee’s personal automobile insurance policy, or whether an exclusion similar to the one sub judice applies. In some cases, the delivery driver or the pizza seller receives a per-delivery charge; in some cases, the delivery driver receives an hourly wage and no per-delivery charge is levied. Several courts have considered the exclusion as applied to the employee’s receipt of wages and/or a mileage reimbursement during pizza delivery, with conflicting results. These cases provide perspective on the exclusion as applied to the hourly wage driver.

¶ 21. In Amerisure Ins. Co. v. Graff Chevrolet, Inc., 257 Mich.App. 585, 669 N.W.2d 304, 309-10 (2003), rev’d on other grounds, 469 Mich. 1003, 674 N.W.2d 379 (2004), the court found that an exclusion in a car rental contract for “carrying people or property for consideration, express or implied” applied to an accident that occurred while a pizza delivery driver received hourly wages from the employer and tips from customers for delivering pizzas. The court recognized that other courts had found similar exclusions to be ambiguous as to whether the exclusions were intended to apply to hourly wages. Id. at 810 n. 8 (citing Randy J. Sutton, Annotation, What Constitutes Use of Automobile “To Carry Persons or Property for Fee” Within Exclusion of Automobile Insurance Policy, 57 A.L.R. 5th 591, 603 (1998)). The court rejected this contention, stating:

Threehouse was employed by Hungry Howie’s to make and deliver pizzas. He was paid the minimum wage and was not reimbursed for his mileage, although he did receive tips. In our view, because Threehouse was hired for the purpose of delivering pizzas, his transportation of those pizzas was for consideration. When he borrowed his fiancee’s car, he did so with the intent to use the car to deliver pizzas so that he could fulfill the conditions of his employment and receive payment in return — if he refused to deliver the pizzas, he would not be paid. He did not simply intend to use the car to drive to work and back.

Id. at 310.

¶ 22. A different result was reached in Progressive Casualty Ins. Co. v. Metcalf, 501 N.W.2d 690, 692 (Minn.Ct.App.1993). In Metcalf, a pizza delivery driver had an accident during his rounds. Id. at 691. The delivery driver was paid an hourly wage, eighteen cents per mile, and received customer tips seventy to seventy-five percent of the time. Id. The hourly wage compensated the delivery driver for his duties at the restaurant as well as for making deliveries. Id. The pizza seller did not charge for delivery. Id. The delivery driver’s personal automobile insurance policy excluded coverage for “the ownership or operation of a vehicle while it is being used to carry persons or property for a fee.” Id. The court’s analysis focused on the ambiguous meaning of the word “fee.” The court observed that “fee” could refer to a per-trip charge. Id. at 692. The court rejected the proposition that “fee” could refer to the wages paid to the employee for driving because the employee received wages for duties in addition to driving. Id. Therefore, the court found that the word “fee” was ambiguous and that coverage existed. Id.

¶ 23. In RPM Pizza, Inc. v. Automotive Casualty Insurance Co., 601 So.2d 1366, 1367 (La.1992), two pizza delivery drivers were involved in separate accidents. They were compensated by wages. Id. No per-delivery charge was levied on customers by the pizza seller or by the delivery drivers. Id. The drivers’ automobile insurance policies excluded liability coverage when the insured used a vehicle “to carry persons or property for a fee.” Id. at 1368. The court discussed the meaning of the word, “fee,” which was undefined by the policies. Id. at 1368-69. The court stated that “fee” could “encompass only specific contracts of carriage such as when a person makes a definite payment to another to carry a specific piece of property, such as hauling trash or moving furniture, or when a passenger pays a taxi fare to carry him from one point to another.” Id. at 1368. Or, “fee” could signify compensation for labor. Id. The policy also had a business-use exclusion with a savings provision for an automobile owned by the insured. Id. Because the broader interpretation of “fee” conflicted with the savings provision, the court concluded that “carrying property for a fee” signified a fixed charge and not wages or compensation generally. Id. at 1369.

¶24. Another approach was taken by the court in U.S. Fidelity & Guaranty Co. v. Lightning Rod Mutual Insurance Co., 80 Ohio St.3d 584, 687 N.E.2d 717 (1997). Again, a pizza delivery driver had an accident while being paid an hourly wage plus mileage for delivering pizza; no per-delivery charge was levied. Id. at 718. The operation of a vehicle carrying property for a fee was excluded from coverage under the delivery driver’s automobile insurance policy. Id. The court cited various definitions of the word “fee,” and found that coverage would depend on whether “fee” signified any compensation or wage for the performance of services or had to be for a particular act or service. Id. at 719. The court then stated:

Thus, Lightning Rod’s policy can be read two ways: first, as excluding from coverage use of a vehicle to transport property when there is any kind of payment to the insured, and second, as excluding coverage only when a fee is paid specifically for the particular act of transporting property. Under the first reading, Spurlock’s use of her car to deliver pizza would be excluded from coverage because Domino’s was paying her an hourly wage. Under the second reading, however, this use would not be excluded by the Lightning Rod policy, since neither Domino’s nor its customers paid Spurlock a fee specifically for delivering the pizza. Under either reading, the policy excludes taxicabs transporting people specifically for a fee or moving vans transporting property specifically for a fee. Only the first reading, however, excludes Spurlock’s errands on behalf of her employer.

Id. The court pointed out that the broader reading would include any incidental transport of items by an insured while “on the clock.” Id. Having found that the exclusion was susceptible of two readings, one favorable to the insured, the court found that the exclusion was ambiguous and that coverage existed. Id.

¶ 25. A recent case from the Supreme Court of Pennsylvania provides further illumination. Prudential Property and Cas. Ins. Co. v. Sartno, 903 A.2d 1170 (Pa.2006). In that case, the court considered the following exclusion:

Cars for Hire:
We will not pay for bodily injury or property damage caused by anyone using a car covered under this part to carry people or property for a fee.
This does include a car pool.
But you and a resident relative are covered if either of you cause [sic] an accident while a passenger in a non-owned car for hire.

Id. at 1172. Sartno, the insured, had an accident while delivering pizzas for his employer, the Pizzeria. Id. Sartno received a per-delivery wage and tips; there was no per-delivery charge. Id. Prudential filed a declaratory judgment action, arguing that because Sartno earned an hourly wage, his car was a “car for hire” used to “carry property for a fee” within the scope of the exclusion. Id. at 1172. The question before the supreme court on appeal from the superior court was “whether or not Sartno carried ‘property for a fee’ when he delivered pizza for free as a paid employee of the Pizzeria.” Id. at 1175.

¶ 26. The court found the exclusion to be ambiguous and reversed the contrary holding of the superior court. Id. at 1178. The superior court, relying on Brosovic v. Nationwide Mut. Ins. Co., 841 A.2d 1071 (Pa.Super.2004), had reasoned that “[t]he focus of our inquiry should not be on what a customer paid for the pizza or what the [Pizzeria] charged or did not charge for the delivery. Rather, our focus should be on the benefit that accrued to [Sartno], who is the insured, for delivering the pizzas.” Id. at 1173. In Brosovic, the insured drove a delivery van owned by a delivery service that charged its customers per delivery. Id. at 1176. The insured was paid a wage for making the deliveries. Id. Brosovic held that the exclusion applied because “ ‘[a] delivery van is certainly a vehicle used to carry property for a fee. It is of no consequence that the fee was paid to [the driver’s] employer rather than to [the driver] himself.’ ” Id. (quoting Brosovic, 841 A.2d at 1074).

¶ 27. The Pennsylvania supreme court found that Brosovic was “inapposite because the holding in that case that the property was being carried for a fee arose from the fact that the company imposed a charge for delivery.” Id. at 1177. The court held that the superior court had improperly focused on the benefit that accrued to Sartno from delivering the pizzas. Id. That analysis had sanctioned Prudential’s own broad reading of its exclusionary clause. Citing Lightning Rod, the supreme court rejected that this broad reading was the only reasonable one, holding that

at least two perspectives ... are reasonable: (1) using a broad interpretation, Sartno did carry property for a fee because his deliveries occurred during the course of his employment, for which he received wages; or (2) under a narrower interpretation, Sartno did not carry property for a fee because there was no delivery charge. The instant matter is a prime example of language in a policy that can be understood in more than one way.

Id. at 1177. The court concluded the exclusion was ambiguous and construed it against the insurer and in favor of coverage. Id. at 1177.

¶ 28. Lightning Rod’s analysis began with the various definitions of the word “fee.” Prudential also involved a “for a fee” exclusion. Progressive admits that the word “fee” may be ambiguous. Arguing that the disjunctive use of the term “compensation” cures any ambiguity inherent in the word “fee,” Progressive contends that none of the cases that have found the “for a fee” exclusion to be ambiguous are applicable here. Progressive argues that the word “compensation” has a broader meaning than “fee” and clearly signifies any payment of money from any source whatsoever.

¶ 29. After careful consideration of the policy language, we disagree. The alternate readings of the “for a fee” exclusion articulated in Lightning Rod and the similar alternate readings in Prudential are analytically relevant to determining the meaning of the “compensation or a fee” exclusion sub judice. As Progressive argues, one definition of the word “compensation” is “payment or remuneration.” Webster’s Ninth New Collegiate Dictionary (1991). Adopting this definition favoring Progressive arguendo, the exclusion would bar from coverage the use of the vehicle to carry a person for payment or remuneration. However, the ambiguity identified in Lightning Rod still exists because it is unclear what acts constitute using a vehicle to carry persons “for” payment or remuneration. If “compensation” signifies payment or remuneration, the question remains whether the exclusion for “use of a vehicle to carry persons or property for compensation or a fee” encompasses (1) any situation where money is paid to the insured in connection with transporting a person, or (2) is intended to capture only those situations where money is paid by the passenger on a per-trip basis. In a case like this one, an employee transporting a person while receiving an hourly wage would have no coverage if the clause were read to exclude the use of the vehicle to transport a person anytime the employee earns wages while making the trip. But, the employee would have coverage if “used to carry persons or property for compensation or a fee” were read more narrowly to exclude only those situations where compensation was paid on a per-trip basis, in other words, where the passenger or someone on the passenger’s behalf paid the employee, the employer, or an interested third party specifically in exchange for the passenger’s transportation. Both of these meanings of “used to carry persons for compensation or a fee” are equally reasonable from the standpoint of the insured; therefore, the exclusion is ambiguous. Having identified two equally reasonable meanings of the exclusion, one favorable to the insured, we cease our analysis without discussing any other possible interpretations of the exclusionary language.

¶ 30. There is no evidence that Bonner or anyone on her behalf paid Lee, We Care, or anyone else for Lee’s transportation of Bonner to Waynesboro. Rather, Lee was paid an hourly wage representing payment for all of her driving duties for We Care. Thus, Lee’s activities were not encompassed by the narrower reading of the exclusion. Because we have found the exclusion to be ambiguous, we give the exclusion the meaning favorable to the insured, We Care. Certainly, Progressive could have drafted “clear and unmistakable” language that would have unambiguously excluded Lee’s conduct from coverage; yet, it did not do so. We affirm the grant of summary judgment in favor of We Care.

¶ 31. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.

      . This fact was included in the trial court’s opinion but was not apparent from those portions of the lower court record designated on appeal. Neither party disputes the lower court’s statement of the facts. For the purposes of this appeal, we assume that this fact was apparent from the evidence properly before the trial court. M.R.C.P. 56(c).

      . A wealth of caselaw on the "carrying persons or property for a fee” and similarly worded exclusions is to be found at Randy J. Sutton, Annotation, What Constitutes Use of Automobile “To Cany Persons or Property for Fee" Within Exclusion of Automobile Insurance Policy, 57 A.L.R. 5th 591 (1998).


author: ISHEE, J.,

text:
    Jermaine WILLIAMS, a/k/a Crap, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-KA-01674-COA.
    Court of Appeals of Mississippi.
    Nov. 7, 2006.
    Rehearing Denied April 3, 2007.

      Phillip Broadhead, Oxford, Raymond L. Wong, Cleveland, attorneys for Appellant.
    Office of the Attorney General by Scott Stuart, attorney for Appellee.
    Before MYERS, P.J., BARNES and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Jermaine Williams, also known as “Crap,” was convicted in the Circuit Court of Bolivar County of possession of a firearm by a convicted felon. Williams was sentenced to serve three years in the custody of the Mississippi Department of Corrections and to pay a fine in the amount of $5,000. Aggrieved, Williams appeals. Finding no error, we affirm.

FACTS

¶ 2. On April 4, 2004, near midnight, Williams was in front of his house in Cleveland, Mississippi working on his car when he was approached by Tyrone Pay-ton. An argument between the two men quickly ensued, and people in the neighborhood began to congregate in the area. As the argument intensified, Payton backed Williams out of the street and into his yard. Shortly thereafter, Williams pulled out a gun and fatally shot Payton in the neck.

¶ 3. On September 21, 2004, Williams was indicted by a Bolivar County grand jury for Count I, manslaughter, and Count II, possession of a firearm by a convicted felon. The jury trial began on May 2, 2005. Williams testified that he was carrying a gun the night of the shooting because of an altercation with Payton the day before. According to Williams, Payton came over to his house on April 3, 2004, and they sat down for a while and talked. When Williams took out some change, Payton “struck [him] in the face with a pistol, snatched [his] money and took off running.” Williams further testified that he had a gun because he “didn’t know whether [Payton] was going to do something else to [him] or kill [him] or whatever.” Williams admitted, however, that he did not go to the police to report the assault.

¶ 4. During a jury instruction conference, Williams objected to jury instruction S-l as it applied to Count II of the indictment. Jury instruction S-l stated in relevant part:

[I]f you believe from the evidence in this case beyond a reasonable doubt that:
1. On or about April 4, 2004, [Williams] did unlawfully, wilfully and feloniously possess a pistol, and
2. At the time of the possession of said firearm, [Williams] had been convicted of a felony crime under the law of the State of Mississippi,
then you shall find [Williams] guilty of the crime of possession of a firearm by a convicted felon in Count II.
If the State has failed to prove any one or more of the above elements beyond a reasonable doubt, then you shall find the defendant not guilty in Count II.

Williams asserted that, although the jury instruction did follow Mississippi Code Annotated section 97-37-5 (Rev.2000), it did not make an exception for possession of a firearm by a convicted felon in self-defense. The court declined to amend jury instruction S-l finding that “there were no circumstance [sic] existing at the time the alleged self defense occurred to show an immanent [sic] threat to the defendant.” The court further found that, because Williams provided no legal authority to support his objection, it was inappropriate to amend the jury instruction to include an exception for self-defense.

¶ 5. The jury found Williams not guilty of manslaughter, but found him guilty of possession of a firearm by a convicted felon. The trial court denied Williams’s motion for JNOV or, in the alternative, a motion for a new trial. Aggrieved by his conviction and sentence, Williams appeals. He asserts the following issue for our review, which we list verbatim:

I. Whether the trial court abused its discretion when it granted jury instruction S-l without modification, which prevented the jury from considering [Williams’s] entire theory of defense when the evidence supported the defense of necessity, which is recognized by the law, and necessity was not covered by any other jury instruction as to the charge of possession of a firearm by a felon.

STANDARD OF REVIEW

¶ 6. “In determining whether error lies in the manner in which the jury was instructed, the various requested instructions are not considered in isolation. Rather, the instructions actually given must be read as a whole.” Sheffield v. State, 844 So.2d 519, 524(¶ 12) (Miss.Ct. App.2003) (citing Turner v. State, 721 So.2d 642, 648(¶21) (Miss.1998)). No reversible error will be found if the instructions fairly announce the law of the case and create no injustice. Johnson v. State, 908 So.2d 758, 764(¶ 20) (Miss.2005) (citing Williams v. State, 863 So.2d 63, 65(¶ 5) (Miss.Ct.App.2003)). “A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Byrom v. State, 863 So.2d 836, 874 (¶129) (Miss.2003) (quoting Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). Jury instructions are within the sound discretion of the trial court. Goodin v. State, 787 So.2d 639, 657(¶ 60) (Miss.2001).

ISSUE AND ANALYSIS

I. Whether the trial court abused its discretion when it granted jury instruction S-l without modification, which prevented the jury from considering [Williams’s] entire theory of defense when the evidence supported the defense of necessity, which is recognized by the law, and necessity was not covered by any other jury instruction as to the charge of possession of a firearm by a felon.

¶ 7. Williams asserts that he was entitled to a jury instruction that presented his entire theory of the case, i.e., that it was “reasonably necessary to arm himself in violation of the law in order to prevent Payton from killing him.” He further asserts that, without mention of a necessity defense, jury instruction S-l was tantamount to a directed verdict in favor of the State because it did not include an exception for “necessary self-defense and necessity.” Williams also notes that “[i]t is indeed odd that the trial judge recognized that an instruction to the jury as to necessary self defense in Count I was proper ... but then went on to deny the defense’s request to modify the jury instruction ... as to Count II.”

¶ 8. Regarding Williams’s allegation that the trial court should have allowed a self-defense exception for possession of a firearm by a convicted felon because it allowed a self-defense instruction for manslaughter, we note that Mississippi Code Annotated section 97-3-35 (Rev.2000) defines manslaughter, or “killing without malice in the heat of passion,” as an act done “not in self-defense.” Thus, “not in self-defense” is an element of the crime of manslaughter and was properly included in the jury instructions for Count I. In contrast, we find that self-defense is not a viable defense to possession of a firearm by a convicted felon. Possession of a firearm by a convicted felon is a criminal act void of a third party to defend against. Williams was guilty of possessing a firearm even if Pay-ton had never approached him that night. Consequently, we find that the trial court did not err in refusing to grant a self-defense exception to possession of a firearm by a convicted felon.

¶ 9. Regarding the trial court’s refusal to grant Williams’s request for a necessity instruction, we note that necessity is a valid defense to possession of a firearm by a convicted felon. See Lenard v. State, 828 So.2d 232(¶ 25) (Miss.Ct.App.2002). In order to be entitled to a defense of necessity, the defendant must prove the following: (1) the act charged was done to prevent a significant evil, (2) there was no adequate alternative, and (3) the harm caused was not disproportionate to the harm avoided. Stodghill v. State, 892 So.2d 236, 238 (Miss.2005).

¶ 10. We find that the evidence in the case at bar does not justify a necessity instruction, as Williams failed to prove that there was no adequate alternative. Although Payton had assaulted Williams the day before, Williams did not press charges or otherwise inform the police of the perceived threat Payton made against him. Furthermore, Williams armed himself with the gun before Payton confronted him on the night of April 4, 2004. Thus, Williams possessed the firearm before it was absolutely necessary. As previously stated, a trial court may refuse an instruction which is without foundation in the evidence. Consequently, we find that the trial court did not err in refusing to amend jury instruction S-l to include an exception for necessity. This issue is without merit.

¶ 11. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND PAYMENT OF A FINE IN THE AMOUNT OF $5,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, AND ROBERTS, JJ., CONCUR.

      . Williams testified that Payton had been trying to collect a debt from him in the amount of $300. ■

      . Williams was previously convicted of the sale of cocaine and/or marijuana, a felony, in the Circuit Court of Sunflower County.


text:
    Louis CLAY, Jr., Appellant v. Christopher EPPS, Ronald King, James Brewer, Darlester Foster, Letitia Roach, Bobby King, David Guess, Brenda Sims, Daniel Paff, and Lynn Moody, in Their Official Capacities with the Mississippi Department of Corrections, and John Smith, Individually, Appellees.
    No. 2005-CP-01855-COA.
    Court of Appeals of Mississippi.
    Jan. 30, 2007.

      Louis Clay, Jr., Appellant, pro se.
    Office of the Attorney General, by Jane L. Mapp, attorney for appellees.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Louis Clay, Jr., filed a grievance with the Administrative Remedy Program of the Mississippi Department of Corrections (“ARP”). After receiving an adverse decision, he filed a complaint in the Greene County Circuit Court. The judge dismissed his complaint as untimely. Clay appeals and argues that his complaint was timely filed in accordance with the prison mailbox rule. We reverse and remand.

¶ 2. Clay is an inmate incarcerated with the Mississippi Department of Corrections. He was hit in the head by a fellow inmate. Clay filed a grievance with the ARP alleging that prison officials failed to protect him from the assault and failed to provide adequate medical care. On March 24, 2005, Clay acknowledged receipt of the Third Step Response, which gave notice that under the ARP his claim was denied. He mailed a complaint to the circuit court on April 20, 2005. The circuit court dismissed the complaint finding that it was untimely filed.

¶ 3. Findings of fact are given deferential treatment and are subject to the manifest error/substantial evidence standard. Russell v. Performance Toyota, Inc., 826 So.2d 719, 721(¶5) (Miss.2002). We review legal questions de novo. Id.

¶4. Clay argues that the circuit court erred in dismissing his complaint, because he did not receive notice of the adverse decision until March 24, and he mailed his complaint within thirty days of this notice. The State concedes that the trial court was in error.

¶ 5. The ARP provides, “administrative remedies available to offenders for the purpose of preserving any cause of action [they] may claim to have against the State of Mississippi, the Department of Corrections or its officials or employees.” Miss. Code Ann. § 47-5-803(1) (Rev.2004).

“Any offender who is aggrieved by an adverse decision rendered pursuant to any administrative review procedure under Sections 47-5-801 through 47-5-807 may, within thirty (30) days after receipt of the agency’s final decisions, seek judicial review of the decision.” Miss.Code Ann. § 47-5-807 (Rev.2004). A prisoner satisfies this rule if he submits his complaint for mailing with the prison officials within this time period. Maze v. Miss. Dep’t of Corrections, 854 So.2d 1090, 1092(¶ 8) (Miss.Ct.App.2003).

¶ 6. For example in Maze, the plaintiff prisoner acknowledged receipt of the final adverse decision from the ARP on June 7, 2001. Id. at 1091(¶ 2). He signed and mailed a motion to show cause on July 5. Id. at (¶¶ 2-5). This was not filed stamped by the Greene County Circuit Clerk until July 11. Id. at (¶ 2). Applying the prison mailbox rule, this Court held that Maze’s motion was timely, because it was considered filed once it was submitted for mailing with prison officials. Id. at 1092(¶ 8). This Court reversed and remanded for a full hearing on the merits. Id. at 1093(¶ 11).

¶ 7. Here, Clay timely sought judicial review in this case. He acknowledged receipt of the Third Step Response denial of his claim, March 24, 2005. The prison mail log indicates Clay mailed “legal mail” to the Greene County Circuit Clerk’s office on April 20. This is the only mailing he sent to the circuit clerk. Therefore, Clay’s complaint was filed within thirty days of receiving notice of the adverse decision.

¶ 8. We note that, even absent the prison mailbox rule, Clay’s complaint was timely filed on April 25. The thirtieth day to seek judicial review was April 23, which fell on a Saturday. If the deadline for filing a pleading is on a Saturday, the party has until the next day that the court is open to file the pleading. M.R.C.P. 6. Therefore, Clay would have had until the following Monday, April 25, to file his complaint. His complaint was stamped filed April 25.

¶ 9. Because the circuit court erred in dismissing Clay’s complaint, we reverse and remand.

1Í10. THE JUDGMENT OF THE CIRCUIT COURT OF GREENE COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GREENE COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.