author: PIERCE, Justice, KITCHENS, Justice, GRAVES, Presiding Justice,

text:
    John P. MLADINEO and Sherry Mladineo v. Richard Earl SCHMIDT, Michael Felsher Insurance Agency and Nationwide Property & Casualty Insurance Company.
    No. 2008-CA-02011-SCT.
    Supreme Court of Mississippi.
    Oct. 28, 2010.
    Rehearing Denied Feb. 17, 2011.

      Charles R. Wilbanks, Jr., Matthew R. Dowd, Frank T. Moore, Jr., Jackson, attorneys for Appellants.
    H. Mitchell Cowan and Laura L. Hill, Jackson, attorneys for appellees.
   PIERCE, Justice,

for the Court:

¶ 1. John and Sherry Mladineo sued Richard Schmidt, Michael Felsher d/b/a the Felsher Insurance Agency, and Nationwide Property & Casualty Company (collectively referred to as “the defendants”) on multiple counts arising out of noncovered claims made on the Mladineos’ homeowner’s insurance policy after Hurricane Katrina. The trial court granted summary judgment to the defendants as to all issues. The Mladineos appeal the trial court’s grant of summary judgment. After review, this Court reverses the ruling of the trial court in part, affirms in part, and remands the matter to the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 2. The Mladineos purchased a home in Ocean Springs, Mississippi. Prior to closing on the property, John Mladineo discussed obtaining insurance coverage for the home and other structures on the property with Richard Schmidt, a Nationwide insurance salesman employed with the Felsher agency. The Mladineos alleged in their complaint that during those discussions, John Mladineo had requested “full protection” for the dwelling and other structures from all weather conditions. The Mladineos further alleged that Schmidt had responded that John would need to purchase a “hurricane policy” in order to obtain the requested coverage.

¶ 3. The Mladineos averred that John had inquired as to whether such a policy would cover all wind and water damage and was assured by Schmidt that all such damage from any named storm was covered. The Mladineos did not obtain a separate flood insurance policy on the property, although John admits he knew such a policy was available. They alleged this was because Schmidt had advised John that the property was not in a flood zone, such a policy would not be required by a mortgage lender, and because the property would be covered for all wind and water damage from a named storm through the “hurricane policy.” John testified in his deposition that Schmidt never had offered to sell the Mladineos flood insurance. John further alleged he later had learned that the rear portion of the property does, in fact, lie in a flood zone.

¶4. After Schmidt faxed John various quotes for insurance coverage on the Ocean Springs property, John advised Schmidt that he would purchase a “hurricane policy,” and chose a particular deductible and limit. Approximately ten days later — on March 10, 2005, the day the Mladineos closed on the Ocean Springs property — the homeowner’s policy became effective. The policy premium also was paid on that day. The Mladineos allege that neither Schmidt nor the Felsher Agency had provided a copy of the policy for the Mladineos to review prior to this date. The purchased policy was written through Nationwide Property & Casualty Insurance Company.

¶ 5. The Mladineos received their homeowner’s policy approximately six weeks after the closing on their Ocean Springs home. Under the heading of “Hurricane Coverage,” the policy states:

Coverage under this policy includes loss or damage caused by the peril of windstorm during a hurricane. It includes damage to a building’s interior or property inside a building caused directly by rain, snow, sleet, hail, sand or dust if direct force of the windstorm first damages the building causing an opening through which the above enters and causes damage.
Hurricane coverage does not include loss caused by flooding, including but not limited to flooding resulting from high tides or storm surges.

(Emphasis added.) In the “Property Exclusions” section of the policy, it further states:

We do not cover loss to any property resulting directly or indirectly from any of the following. Such a loss is excluded even if another peril or event contributed concurrently or in any sequence to cause the loss....
... Loss resulting from water or water-borne material damage described below is not covered even if other perils contributed directly or indirectly to cause the loss. Water and water-borne material damage means:
1) flood, surface water, waves, tidal waves, overflow of a body of water, spray from these, whether or not driven by wind....

(Emphasis added.) John testified in his deposition that, upon receipt of the policy, he filed it away and did not read it. The Mladineos had no further conversations with Schmidt regarding this policy prior to Hurricane Katrina.

¶ 6. Hurricane Katrina hit the Mississippi Gulf Coast on August 29, 2005. Along with extensive damage throughout the entire Gulf region, Katrina severely damaged the Mladineos’ Ocean Springs home and the other structures on the property. The Mladineos filed a claim with Nationwide on their Ocean Springs property, and it was denied as to damage caused by water. Nationwide also initially denied coverage on the pier and boathouse that were damaged during Hurricane Katrina, but subsequently paid claims on those structures.

¶ 7. Thereafter, Schmidt and John had several conversations in person regarding the coverage. The Mladineos allege that Schmidt admitted to John that he never had indicated during negotiations that an exclusion existed in the policy for water damage. Schmidt filed an errors and omissions claim regarding this matter, which he completed in John’s presence.

¶ 8. The Mladineos filed suit against Schmidt, the Felsher Insurance Agency, and Nationwide on September 29, 2006, making the following claims:

a. failure of Schmidt and the Felsher Agency to procure the requested coverage;
b. negligence by Schmidt, and through him, the Felsher Agency;
c. negligent misrepresentation of material facts by Schmidt, and through him, the Felsher Agency;
d. independent tort against Schmidt and the Felsher Agency for misrepresentations made in an alleged attempt to cover Schmidt’s actions;
e. Nationwide is bound by the representation of its agents and should be required to provide coverage in accordance with such representations;
f. Nationwide breached the implied duty of good faith and fair dealing contained in the contract between itself and the Mladineos;
g. tortuous breach of contract against Nationwide; and
h. Nationwide, Schmidt and the Felsher Agency acted in bad faith.

The Mladineos demanded judgment in their favor and requested the insurance coverage they allegedly had requested originally, compensatory damages, punitive damages, interest and attorney’s fees.

¶ 9. The matter was removed to federal court and subsequently was remanded. Thereafter, the Honorable Billy G. Bridges, Senior Status Judge, was specially appointed to preside over the matter in the Circuit Court of Jackson County. The parties began discovery and entered into an Agreed Scheduling Order.

¶ 10. After extensive discovery, the defendants — Schmidt, the Felsher Agency, and Nationwide — filed a motion for summary judgment. In the motion, the defendants asserted that there is no genuine issue of material fact as to any of the Mladineos’ claims. The defendants claimed the negligence, negligent-misrepresentation, and independent-tort claims fail because Mississippi law imposes on insureds a duty to read their insurance contracts and imputes to them knowledge of the contents of such contracts. Therefore, the defendants asserted that reliance on any misrepresentation which would have been clarified by reading the policy is per se unreasonable. Further, the defendants asserted that the Mladineos’ failure-to-procure claim fails because, once the policy has been delivered, the insured has a duty to read it, is imputed with knowledge of its terms, and has the responsibility to cure any deficiencies regarding what coverage is actually contained in the policy as compared to what coverage was requested.

¶ 11. The defendants’ motion for summary judgment further argued that the Mladineos’ claims for breach of contract and breach of the implied duty of good faith and fair dealing fail because Nationwide enforced its policy as written. Further, the defendants asserted that the Mla-dineos’ bad-faith claim should be dismissed because Nationwide had a legitimate or arguable reason to deny payment of the Mladineos’ insurance claim. For the same reason, the defendants asserted that the Mladineos’s claim for punitive damages should be dismissed.

¶ 12. The Mladineos filed a response to the defendants’ motion for summary judgment. In it, they labeled the “duty-to-read” and “imputed-knowledge” doctrines raised by the defendants an affirmative defense. The Mladineos asserted that the defendants had waived such defense by participating in the litigation for more than two years without raising the defenses. The Mladineos further claimed that the “duty-to-read” and “imputed-knowledge” doctrines do not automatically bar the Mladineos’ claims, but rather, there are factual determinations that must be considered and weighed by a jury to evaluate the applicability of those claims.

¶ 13. The defendants filed a rebuttal in support of their original motion for summary judgment, which asserted that the “duty to read” is a settled principle of Mississippi law, not an affirmative defense. Further, the defendants contended their motion for summary judgment was in compliance with the agreed scheduling order entered in the matter. Finally, the defendants argued that each of the Mladineos’ claims should be dismissed through summary judgment, as no genuine issue of material fact existed as to any of them.

¶ 14. The Mladineos filed their own motion for partial summary judgment as to the defendants’ defenses regarding the “duty-to-read” and “imputed-knowledge” doctrines. The Mladineos requested the court dismiss those claims as waived by the defendants.

¶ 15. After a hearing on the matter, the trial court granted the defendants’ motion for summary judgment as to each of the Mladineos’ claims. The trial court found that the defendants did not waive their right to rely upon the “duty to read,” and that the doctrine is a principle of law and not an affirmative defense. Further, the trial court found Mississippi law imposes a duty on insureds to read their insurance policies, and that the Mladineos’ reliance on Schmidt’s representations that contradicted the plain language of the policy was per se unreasonable. Therefore, the trial court held that the Mladineos’ misrepresentation claim failed as a matter of law.

¶ 16. The trial court further found the Mladineos’ failure-to-procure and negligence claims failed because of the “duty-to-read” and “imputed-knowledge” doctrines, reasoning that four months was ample time for the Mladineos to have read their policy and raise any objections regarding the coverage or lack thereof. Therefore, regardless of whether the Mla-dineos requested coverage they did not receive, the trial court held that they could not establish that any failure on the part of Schmidt or the Felsher Agency was the cause of any damages resulting from the lack of coverage.

¶ 17. Furthermore, the trial court found that, because none of Nationwide’s actions contradicted the plain language of the written policy the Mladineos had purchased, there was no genuine issue of material fact as to the Mladineos’ breach-of-contract, tortious-breach-of-contract, and breach-of-the-duty-of-good-faith-and-fair-dealing claims. The trial court found that the Mladineos’ independent-tort and bad-faith claims failed as a matter of law because Nationwide had a legitimate or arguable basis for its coverage decisions. Finally, the trial court found that Nationwide owed no duty to the Mladineos to investigate the errors-and-omissions incident report filed by Schmidt, and a claim for bad faith could not be premised on an alleged failure by Nationwide to investigate the report.

¶ 18. The trial court dismissed all of the Mladineos’ claims with prejudice. The Mladineos now appeal and raise the following issues:

I. Whether the Mladineos are entitled to present evidence of their failure-to-procure, negligent-misrepresentation, and other claims and to have those issues and the issues of comparative fault and causation determined by a jury, rather than have those issues decided on a motion for summary judgment.
II. Whether the Mladineos’ claims of negligence, negligent misrepresentation, and failure to procure are automatically barred by the “duty-to-read” defense.
III. Whether Nationwide had a duty to conduct a fair, prompt and adequate investigation of the claims of agent error and whether failure to do so is actionable in tort.
IV. Whether the defendants waived the “duty-to-read” defense.
V. Whether the “duty to read” automatically bars a claim against an insurance company for the misrepresentations of its agent acting with apparent authority.
VI. Whether considerations of public policy prohibit the application of the “duty to read” as interpreted by the trial court.

DISCUSSION

¶ 19. The well-established standard of review on a trial court’s grant of summary judgment is de novo. Duckworth v. Warren, 10 So.3d 433, 436 (Miss.2009) (citing One South, Inc. v. Hollowell, 963 So.2d 1156, 1160 (Miss.2007)). Where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law” summary judgment is appropriate. Id. (citing Miss. R. Civ. P. 56(c)). See also Johnson v. City of Cleveland, 846 So.2d 1031, 1034-35 (Miss.2003). “The evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Id. (quoting One South, 963 So.2d at 1160). The burden is on the moving party to “demonstrat[e] that [no] genuine issue of material fact exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Id. Where there are undisputed facts which are susceptible to more than one interpretation, summary judgment is inappropriate. Id. (citing Johnson, 846 So.2d at 1036).

I. Whether the Defendants Waived the “Duty to Read.”

¶ 20. We will begin our discussion with the fourth issue the Mladineos raise on appeal: whether the defendants waived their right to rely on the “duty-to-read” and “imputed-knowledge” doctrines. The foundation of this argument is the proposition that the “duty-to-read” and “imputed-knowledge” doctrines constitute an affirmative defense. The Mladineos assert that, because the defendants did not include the “affirmative defense” in their denial letters to the Mladineos prior to litigation, failed to plead the “duty-to-read” and “imputed-knowledge” doctrines as an affirmative defense in any responsive pleading filed in this case prior to filing the motion for summary judgment, and actively participated in the litigation for more than two years before raising the “affirmative defense” in the motion for summary judgment, they waived their right to pursue the “affirmative defense.”

¶21. Because the Mladineos label the “duty to read” as an affirmative defense, they claim this Court’s ruling in MS Credit Center, Inc. v. Horton controls. See MS Credit Center, Inc. v. Horton, 926 So.2d 167 (Miss.2006). In Horton, this Court held that a substantial and unreasonable delay in pursuing the right to compel arbitration, coupled with active participation in the litigation process, waived that right. Id. at 180. We further explained, “a defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver.” Id. (emphasis added).

¶ 22. Here, the trial court held that the the Mladineos’ “waiver argument [was] misplaced.” and explained that the defendants’ motion for summary judgment was “based on well-settled principles of Mississippi law, not an ‘affirmative defense’ as [the Mladineos] suggest.” The trial court further found that the defendants had complied with the agreed scheduling order entered into between the parties in filing the motion for summary judgment, and that Horton was, therefore, inapplicable.

¶23. We agree with the trial court. The “duty-to-read” and “imputed-knowledge” doctrines, as discussed in Section II, infra, are substantive rules of law. The defendant’s defense is simply that the language of the policy the Mladineos purchased excludes the coverage the Miádm-eos are attempting to claim. The defendants asserted this in their Answer, in which they stated “coverage provisions and exclusions of Plaintiffs Nationwide homeowner’s policy speak for themselves.” This language put the Mladineos on notice that the defendants intended to rely on the policy language and its exclusions in the course of this litigation.

¶ 24. Because the motion for summary judgment was filed within the time frame established by the parties in their agreed scheduling order, the trial court did not err in finding the Mladineos’ waiver argument to be misplaced. The “duty-to-read” and “imputed-knowledge” doctrines are substantive rules of law — not affirmative defenses, as the Mladineos contend. Accordingly, we affirm the trial court as to this issue.

II. Negligence, Failure to Procure, and Negligent Misrepresentation

¶25. The first and second issues the Mladineos raise on appeal was whether the “duty-to-read” and “imputed-knowledge” doctrines automatically bar the negligence, negligent-misrepresentation, and failure-to-procure-the-requested-coverage claims against Schmidt and the Felsher agency, and whether the Mladineos are entitled to present evidence of those claims for determination by a jury.

The “Duty-to-Read” and “Imputed-Knowledge” Doctrines

¶ 26. This Court has held as a matter of law that an insured is charged with the knowledge of the terms of the policy upon which he or she relies for protection. Atlas Roofing Mfg. Co., Inc. v. Robinson & Julienne, Inc., 279 So.2d 625, 629 (Miss.1973). Again, we emphasized that “knowledge of an insurance policy is imputed to an insured regardless of whether the insured read the policy.” Oaks v. Sellers, 953 So.2d 1077, 1083-84 (Miss.2007). This Court repeatedly has held this. See Stephens v. Equitable Life Assurance Soc’y of U.S., 850 So.2d 78, 83 (Miss.2003) (“insureds are bound as a matter of law by the knowledge of the contents of a contract in which they entered notwithstanding whether they actually read the policy”); Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 419 (Miss.1987) (“Even if [the insureds] had not [read the subject insurance policy], knowledge of its contents would be imputed to them as a matter of law.”); Zepponi v. Home Ins. Co., 248 Miss. 828, 883-34, 161 So.2d 524 (Miss.1964) (holding as a matter of law that where the insured’s mortgagee required insurance and had possession of the subject insurance policy, the insured is charged with knowledge of the terms of the policy because he relied on the policy for protection). Thus, the “duty-to-read” and “imputed-knowledge” doctrines are firmly rooted in Mississippi precedent.

¶ 27. The Mladineos attempt to distinguish the present matter from many of these cases by pointing out that the insureds in those matters had possession of their policies for far longer than the Mla-dineos did. The Mladineos had possession of their policy for approximately four months prior to Hurricane Katrina, whereas the insureds in many of the above-referenced cases had their policies for much longer-some as long as twenty-nine years. However, the Mladineos did have possession of their policy for four months-enough time to have read the policy-and are imputed with knowledge of the policy’s contents pursuant to our precedent.

Negligence

¶ 28. The elements of a negligence claim are duty, breach of duty, proximate cause, and damages. Holliday v. Pizza Inn, Inc., 659 So.2d 860, 864 (Miss.1995) (quoting Skelton v. Twin County Rural Elec. Ass’n, 611 So.2d 931, 936 (Miss.1992)). In them complaint, the Mladineos claim that Schmidt, and, through him, the Felsher Agency:

... were negligent in not properly and completely inspecting the property; in not seeing the obvious pier and boathouse to the rear of the property; by not taking further precautions about procuring coverage for damage which could bq caused by water, given the fact that the rear portion of the property was in a flood zone; by not ascertaining the exact flood plain status of the subject real property; by not informing John of the exact flood plain status of the subject real property ...

In his deposition, John Mladineo testified that Schmidt had told him, “Since you’re not in the flood plain, the bank would not require a separate flood insurance policy.” John testified that Schmidt told him this in response to John’s question as to whether a “hurricane policy” would cover all wind and water damage.

¶ 29. An insurance agent must use that degree of diligence and care with reference thereto which a reasonably prudent [person] would exercise in the transaction of his own business. McKinnon v. Batte, 485 So.2d 295, 297 (Miss.1986) (quoting Security Ins. Agency, Inc. v. Cox, 299 So.2d 192, 194 (Miss.1974)). See also Taylor Machine Works, Inc. v. Great American Surplus Lines Ins. Co., 635 So.2d 1357, 1362 (Miss.1994); Security Ins. Agency, Inc. v. Cox, 299 So.2d 192, 194 (Miss.1974); and First United Bank of Poplarville v. Reid, 612 So.2d 1131, 1137 (Miss.1992). It is a question of fact whether Schmidt breached this duty by allegedly informing the Mladineos that their property was not in a flood plain and counseling against flood insurance. Further, it is a question of fact whether any such breach proximately caused any damages to the Mladineos, such as uninsured claims resulting from a lack of flood coverage. While the dissent believes our position to be contradictory, it is not. We are not “carving out an exception to the ‘duty to read.’ ” These alleged omissions and misrepresentations are not barred by the “imputed knowledge” of the policy because they are not misrepresentations that would have been disclosed by reading the policy. Ballard v. Commercial Bank of DeKalb, 991 So.2d 1201, 1207 (Miss.2008). The Mladineos are barred from arguing that they did not know what was in the policy. We have not yet said that they are barred from arguing that Schmidt’s alleged negligence caused them to underestimate the coverage they would need, making summary judgment improper.

¶ 30. Other jurisdictions have dealt more specifically with pure negligence claims against insurance agents. In Southwest Auto Painting and Body Repair, Inc. v. Binsfeld, the Arizona Court of Appeals reversed summary judgment where store owners were not advised of the availability of fidelity coverage. Southwest Auto Painting and Body Repair, Inc. v. Binsfeld, 183 Ariz. 444, 904 P.2d 1268, 1272 (Ariz.App. Div. 1, 1995). In contrast, the New Hampshire Supreme Court has criticized this rule, saying “[An agent’s] general duty of care [to the insured] excludes an affirmative obligation to give advice regarding the availability or sufficiency of coverage.” Sintros v. Hamon, 148 N.H. 478, 481, 810 A.2d 553, 555 (N.H.2002). A majority of states hold that a special relationship could impose upon an insurance agent an affirmative duty to provide advice regarding the availability or sufficiency of insurance coverage. See, e.g., Harts v. Farmers Ins. Exchange, 461 Mich. 1, 10, 597 N.W.2d 47, 52 (1999); Murphy v. Kuhn, 90 N.Y.2d 266, 269, 660 N.Y.S.2d 371, 682 N.E.2d 972, 974-75 (1997).

¶ 31. While their imputed knowledge prohibits the Mladineos from relying on the characterization of their policy as a “hurricane policy” to get coverage not provided on the face of the policy, they may argue that, but for Schmidt’s misrepresentation of the fact that their property was in a flood plain, they would have bought flood coverage. Even actual knowledge and understanding of every word, phrase, and idea of the policy does not preclude the possibility that they may have bought more extensive coverage absent Schmidt’s alleged negligence.

¶ 32. We go further to clarify that, contrary to a minority of jurisdictions, we do not And that insurance agents in Mississippi have an affirmative duty to advise buyers regarding their coverage needs. The majority of jurisdictions have stated strong policy reasons for finding that an agent does not have an affirmative duty to advise the insured of coverage needs: insureds are in a better position to assess their assets and risk of loss, coverage needs are often personal and subjective, and imposing liability on agents for failing to advise insureds regarding the sufficiency of their coverage would remove any burden from the insured to take care of his or her own financial needs. However, we find that if agents do offer advice to insureds, they have a duty to exercise reasonable care in doing so. A jury should be allowed to decide whether reasonable care was exercised here.

¶ 33. Therefore, summary judgment was improperly granted as to this issue. The Mladineos’ negligence claim against Schmidt, and through him, the Felsher Agency, is remanded to the trial court for further proceedings to determine if Schmidt’s alleged representation regarding the Mladineos’ need, or lack thereof, of flood insurance breached his professional duty and proximately caused any damage to the Mladineos.

Failure to Procure the Requested Coverage

¶ 84. The Mladineos allege that Schmidt and the Felsher Agency breached their duty to procure the insurance coverage the Mladineos requested. The trial court granted summary judgment to the defendants on this issue and found that, “where an insured has such fair notice of the terms of his policy and ample time to reject it if he considers it insufficient, he cannot complain that his agent failed to obtain requested coverage.”

¶ 35. As stated above, the elements of a negligence claim are duty, breach of duty, proximate cause, and damages. Holliday v. Pizza Inn, Inc., 659 So.2d 860, 864 (Miss.1995) (quoting Skelton v. Twin County Rural Elec. Ass’n, 611 So.2d 931, 936 (Miss.1992)). With respect to the element of duty in the present matter, it is well-settled that if an insurance agent or broker with a view to being compensated agrees to procure insurance for another and through fault or neglect fails to do so, he will be liable for any damage that results thereby. McKinnon, 485 So.2d at 297 (quoting Simpson v. M-P Enter., Inc., 252 So.2d 202, 207 (Miss.1971)).

¶ 36. Here, it is disputed whether Schmidt, and through him, the Felsher Agency, breached this duty. The Mladin-eos clearly have damages, as they have incurred uninsured losses caused by Hurricane Katrina. The central inquiry is causation—if Schmidt breached his duty as an insurance agent, did that proximately cause the Mladineos’ injury?

¶ 37. John claims he made a request for insurance coverage, including both wind and water damage for any named storm. However, the rule of this Court for more than a century has been:

The [insurance] policy itself [is] notice to the assured that the company ... assured against loss to [the] extent [of the policy’s language] only; that it expressly excluded every interest from the insurance, unless the assured immediately notified it that there was a different interest, and procured a written consent thereto. The silent acceptance of the policy by the assured closed the contract, and bound the assured to the agreement tendered by the policy ...

Rosenstock v. Miss. Home Ins. Co., 82 Miss. 674, 35 So. 309, 311 (1903) (emphasis added). Mladineo admitted he knew that flood policies can be purchased separately from homeowner’s policies, yet he did not request such a policy at the time of the initial negotiations, or after receipt of the subject policy. As quoted supra, the policy language clearly excludes damage from water—and the Mladineos’ silent acceptance of this policy bound them to its terms.

¶ 38. The trial court was correct: even if Schmidt breached his duty as an insurance agent to procure the requested coverage, the Mladineos’ silence was the proximate cause of their damage. If they had executed their duty to read the policy, they would have noticed that the policy plainly did not cover the things that they assumed “hurricane” policies would cover. Therefore, the trial court is affirmed as to the dismissal of the claim for negligent failure to procure requested coverage.

Negligent Misrepresentation

¶ 39. The Mladineos also claim Schmidt negligently misrepresented the terms of their policy, which caused the Mladineos damage. “In order to establish negligent misrepresentation, the following elements must be proven: ‘(1) a misrepresentation or omission of a fact; (2) that the representation or omission is material or significant; (3) that the person/entity charged with the negligence failed to exercise that degree of diligence and expertise the public is entitled to expect of such persons/entities; (4) that the plaintiff reasonably relied upon the misrepresentation or omission; and (5) that the plaintiff suffered damages as a direct and proximate result of such reasonable reliance.’ ” Hazlehurst Lumber Co., Inc. v. Miss. Forestry Comm’n, 983 So.2d 309, 313 (Miss.2008) (quoting Horace Mann Life Ins. Co. v. Nunaley, 960 So.2d 455, 461 (Miss.2007)).

¶ 40. This issue turns on whether the Mladineos’ reliance on any alleged misrepresentations by Schmidt was reasonable. Schmidt’s alleged misrepresentations regarding the need for flood insurance have been discussed above in the context of simple negligence. We reiterate that we think summary judgment for those claims was improper. Those claims also could be brought under a theory of negligent misrepresentation.

¶ 41. But as for misrepresentations that could have been cleared up by reading the policy, we affirm the trial court. Specifically, the Mladineos allege that Schmidt assured them their property would be covered for all damage from a named storm under the policy they purchased, including damage caused by water. The Mladineos argue that they had no document in their possession at the time Schmidt and the Felsher Agency made the alleged misrepresentations regarding the terms of the policy. They contend that the alleged misrepresentations were material and took place weeks before the policy with the contrary terms was delivered to them. Because the Mladineos had their policy in hand for only four months prior to Hurricane Katrina, they argue that it is a question for the jury whether reliance on Schmidt’s misrepresentations was reasonable.

¶42. We repeatedly have held, “insureds are bound as a matter of law by the knowledge of the contents of a contract in which they entered notwithstanding whether they actually read the policy. Any alleged oral agreement ... does not have any effect on the written insurance contract.” Stephens v. Equitable Life Assurance Soc’y of U.S., 850 So.2d 78, 83 (Miss.2003). This Court further stated that a contracting party “will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.” Id. (quoting Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So.2d 1254, 1257 (Miss.1991)).

¶ 43. The Mladineos rely on this Court’s rulings in United American Insurance Co. v. Merrill, 978 So.2d 613 (Miss.2007), and American Income Life Insurance Co. v. Hollins, 830 So.2d 1230, 1235 (Miss.2002), as support for their position that reliance on the alleged misrepresentations of Schmidt was reasonable. In Merrill, the life insurance policy at issue contained a two-year incontestability clause, in which the insurance company reserved the right to deny the claims on certain bases if the insured died within two years of purchasing the policy. The insurance agent testified that she had been instructed by the insurance company to tell applicants that “someone always pays.” Merrill, 978 So.2d at 622. The agent further testified that she had not been informed of the incontestability clause by the insurance company and did not inform the plaintiff of such a clause while selling the policy. . Id.

¶ 44. The insurance company objected to this testimony on appeal. In analyzing whether the trial court properly admitted the insurance agent’s testimony, this Court said:

[The insurance company] argues that knowledge of the incontestability clause should have been imputed to the [insureds] as it is the law that a person is bound by the ... documents that they sign. However, the [insureds] did not have [the policy] at the time they applied .... This might be true as applied to the [insureds] after they received the policy....

Merrill, 978 So.2d at 632 (internal citations omitted). The Mladineos argue that this Court found that the “duty-to-read” doctrine was inapplicable in Memll, based in the foregoing quote. This is not a correct reading of the Memll case. We said knowledge of the incontestability clause should have been imputed to the insureds “after they received the policy,” as is the case in the present matter. Id. (emphasis added). A duty to read cannot be placed on one who not yet received the policy.

¶ 45. Hollins is a plurality opinion from this Court in which the plaintiff sought a hospital indemnity insurance policy. In response to a specific question from the plaintiff, the insurance agent told her that, as long as she had not undergone surgery for a pre-existing condition, it would be covered by the policy. At the time the agent made this statement to her, the plaintiff had not been notified that the policy specifically excluded pre-existing conditions. The Hollins plaintiff did not receive the policy until sometime after the application was complete and the premium had been paid. The policy stated that “[n]o agent may change this policy or waive any of its provisions.” This Court held that the plaintiff already had relied on the agent’s statement prior to receiving it. The plurality opinion went on to state:

That [the plaintiff] did not read it does not alter the fact that she relied on [the agent’s] statements before the policy was provided to her. The exclusion contained in the policy, while unambiguous, was not made available until after she had purchased the insurance in reliance on [the agent’s] statement. Because [the plaintiff] was not informed otherwise prior to relying on [the agent’s] statement, her reliance on the statement that her [pre-existing] condition would be covered was reasonable.

Hollins, 830 So.2d at 1237-1238.

¶ 46. This holding in Hollins directly contradicts our well-settled precedent regarding an insured’s duty to read his or her policy. See e.g. Gulf Guar. Life Ins. Co. v. Kelley, 389 So.2d 920, 922 (Miss.1980) (“[An insured] may not neglect or purposely omit acquainting himself with the terms and conditions of the insurance policy and then complain of his ignorance of them.”) Where Hollins is contradictory to the “duty-to-read” and “imputed-knowledge” doctrines, it is hereby overruled.

¶ 47. Based on the foregoing analysis, the Mladineos reasonably cannot have relied on the alleged assurances of coverage by Schmidt that directly contradicted the plain language of the policy they had in their possession. Because at least one of the elements required for a negligent-misrepresentation claim is not present, we affirm the trial court’s grant of summai*y judgment as to the claim of negligent misrepresentation.

III. Whether the “Duty to Read” Automatically Bars Claims Against Nationwide.

¶ 48. The fifth issue raised by the Mladineos is whether the “duty-to-read” and “imputed-knowledge” doctrines automatically bar claims against Nationwide for the alleged misrepresentations of its agents, Schmidt and the Felsher Agency, who the Mladineos allege acted with apparent authority. The Mladineos allege that Nationwide is bound by the alleged representation of its agents that the subject policy covered both wind and water damage to the Mladineos’ Ocean Springs home. The trial court granted summary judgment to the defendants on all of the Mladineos’ claims, including whether Nationwide was liable for Schmidt’s alleged misrepresentations.

¶ 49. “Apparent authority exists when a reasonably prudent person, having knowledge of the nature and usages of the business involved, would be justified in supposing, based on the character of the duties entrusted to the agent, that the agent has the power he is assumed to have.” Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172, 1180 (Miss.1990) (quoting Ford v. Lamar Life Ins. Co., 513 So.2d 880, 888 (Miss.1987)). To recover under the theory of apparent authority, the following three factors must be present: (1) acts or conduct on the part of the principal indicating the agent’s authority, (2) reasonable reliance on those acts, and (3) a detrimental change'in position as a result of such reliance. Id.

¶ 50. The Mladineos again look to this Court’s holdings in Merrill and Hollins as support for their argument that Mississippi law supports holding Nationwide responsible for the acts of its agent. However, in making this argument, the Mladineos miss a key factual distinction between those cases and the present case: the agent made misrepresentations to the insurance company in Merrill and Hol-lins, not to the consumer, as alleged in the present matter.

¶ 51. As stated above, Hollins involved a hospital indemnity policy, while Merrill involved a life insurance policy. In both matters, the agent took charge of the policy applications and asked the plaintiffs the questions contained therein. Although both applicants were truthful in their responses, both applications misrepresented prior health history of the applicants. When claims were filed pursuant to these policies, they were denied in both matters due to the misrepresentations on the application, and the Hollins policy was rescinded, while the premiums paid on the Merrill policy were refunded.

¶ 52. This Court has said, “in cases where the agent takes charge of the application or suggests the answers to the question, the company shall not avoid the policy because they are false or untrue, if full disclosures were made by the applicant to him.” Hollins, 830 So.2d at 1235 (citing McCann v. Gulf Nat’l Life Ins. Co., 574 So.2d 654, 657 (Miss.1990)).

¶ 53. The facts in the present matter are not similar to those in Merrill and Hollins. Here, the alleged misrepresentation by the agent was made to the consumer (the Mladineos), not to the insurance company (Nationwide). For four months, the Mladineos had possession of a policy with terms in direct conflict with the alleged misrepresentation, which was enough time to recognize and remedy the deficit in coverage. Further, as discussed in Section II, supra, after receipt of the insurance policy, it was not reasonable for the Mladineos to rely on any oral representations by Schmidt which contradicted the terms of that policy. Nationwide’s denial of claims as to flood damage is in accordance with the terms of that policy. Therefore, the trial court is affirmed as to this issue.

IV. Public Policy

¶ 54. The sixth issue raised by the Mladineos is whether considerations of public policy prohibit the application and interpretation of the “duty-to-read” and “imputed-knowledge” doctrines as interpreted by the trial court. The crux of the Mladineos’ argument is that if the “duty-to-read” and “imputed-knowledge” doctrines are interpreted and applied as the trial court applied them, insurance companies and their agents may induce consumers to purchase policies through misrepresentation and face no liability for such behavior by simply delivering to the consumers a policy with different terms after the transaction is complete. The defendants, on the other hand, argue that prohibiting the “duty-to-read” defense would allow insureds knowingly to underinsure themselves and then complain that they did not get the coverage they requested after sustaining an uncovered loss.

¶ 55. Mississippi law is very clear: insureds are imputed with knowledge of the contents of their insurance policy, whether or not they have read the policy. It is therefore not against the public policy of this state to hold them to have knowledge of their insurance policy’s contents.

¶ 56. Also, Mississippi law requires insurance companies and their agents to adhere to the standard of care for their profession, and they will be liable for any breach of this standard of care which proximately causes damages. Further, principals can be bound by the acts of their agents when the relevant three-part test is met. Accordingly, agents and insurance companies cannot market, sell, and induce consumers to purchase policies through misrepresentations and be absolved of liability simply by delivering the subject policy to the insureds, as the Mladineos contend.

¶ 57. For the foregoing reasons, the “duty-to-read” and “imputed-knowledge” doctrines, as applied by the trial court, are not in conflict with the public policy of this State. This issue is without merit.

V. Nationwide’s Investigation of Schmidt’s Errors-and-Omissions Claim

¶ 58. Finally, we will discuss the third issue raised on appeal by the Mladineos: whether Nationwide owed the Mladineos a duty to conduct a fair, prompt, and adequate investigation of the errors- and-omissions claim filed by Schmidt, and whether violation of such duty is actionable in tort. The Mladineos allege that Nationwide had a legal duty to deal fairly and in good faith with its insured in order to conduct a prompt, reasonable, and adequate investigation into whether Schmidt had committed negligence in the procurement of the specifically requested insurance coverage.

¶ 59. The Mladineos point out that Mississippi law imposes a duty on the insurance company promptly and fully to investigate any claim. Life & Cas. Ins. Co. of Tenn. v. Bristow, 529 So.2d 620, 623 (Miss.1988). The Mladineos complain that the investigation of Schmidt’s errors-and-omissions claim was not adequate and did not meet the standard set forth in Bristow.

¶ 60. However, no duty exists on the part of Nationwide to investigate the errors and omissions of its agents in the present matter. The Mladineos admit that this is “an action by a policyholder against its insuror.” While Bristow requires that insurance companies adequately investigate claims made against the insurance policies they provide, it does not impose a duty on insurance companies to investigate claims against the company itself Therefore, the trial court was correct in granting summary judgment as to this issue.

CONCLUSION

¶ 61. In conclusion, the defendants did not waive their right to rely on the “duty-to-read” and “imputed-knowledge” doctrines. Therefore, the Mladineos’ claims for failure to procure the requested coverage and negligent misrepresentation fail as a matter of law, because the Mladineos had a duty to read their insurance policy, were imputed with knowledge of its contents, and cannot reasonably rely on any oral statements which contradict the unambiguous terms of the contract. Nationwide cannot be held liable through the theory of apparent authority in this matter, nor did Nationwide owe the Mladineos a duty to investigate the errors-and-omissions claims filed by Schmidt. Therefore, summary judgment was proper as to these issues, as well as to public policy. However, the trial court’s grant of summary judgment on the claim of negligence in this matter is reversed and remanded for further proceedings as to that issue. The trial court’s judgment is affirmed in part, reversed in part and remanded.

¶ 62. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR AND CHANDLER, JJ„ CONCUR. KITCHENS, J., DISSENTS, WITH SEPARATE WRITTEN OPINION. GRAVES, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

KITCHENS, Justice,

dissenting:

¶ 68. The majority theorizes that “[t]he ‘duty-to-read’ and ‘imputed-knowledge’ doctrines are substantive rules of law — not affirmative defenses.” Maj. Op. at ¶24. Because I do not agree that substantive rules of law cannot be affirmative defenses, I dissent.

¶ 64. Mississippi Rule of Civil Procedure 8(c) provides in pertinent part:

In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.

M.R.C.P. 8(c) (emphasis added). Every defense specifically mentioned or alluded to in this rule is an established principle of law, and each is subject to waiver if not properly and timely pled. We have interpreted Rule 8(c) of the Mississippi Rules of Civil Procedure “to mean that, generally, if a party fails to raise an affirmative defense in its original answer, the defense will be deemed waived.” Hutzel v. City of Jackson, 38 So.3d 1116, 1119 (Miss.2010) (citing Pass Termite and Pest Control, Inc. v. Walker, 904 So.2d 1030, 1033 (Miss.2004)). Because the defendants failed to raise affirmatively the plaintiffs’ duty to read the insurance policy and their imputed knowledge of the contents of the policy as defenses in any responsive pleading and thereafter participated actively in the litigation process for nearly two years before moving for summary judgment, the defendants have waived the right to raise these defenses, which obviously are affirmative in every sense.

¶ 65. In MS Credit Center, Inc. v. Horton, 926 So.2d 167 (Miss.2006), this Court considered whether a defendant’s failure to pursue actively the right to compel arbitration for eight months amounted to a waiver of that defense. We held that, where a defendant failed “timely and reasonably [to] raise and pursue the enforcement of any affirmative defense or other affirmative matter ..., coupled with active participation in the litigation process,” the defense ordinarily will have been waived. Id. at 180 (emphasis added). However, we declined to set a minimum number of days which will constitute an unreasonable delay, but did hold “that — absent extreme and unusual circumstances — an eight month unjustified delay in the assertion and pursuit of any affirmative defense or other right ... constitutes waiver as a matter of law.” Id.

¶ 66. In compliance with the rule announced in Horton, “this Court consistently has held that, absent a reasonable explanation, failure to plead an affirmative defense according to Rule 8(c) will result in a waiver of that defense.” Hutzel, 33 So.3d at 1120. In Hutzel, we held that a defendant’s failure to assert and pursue actively the affirmative defense of accord and satisfaction for twenty-six months while actively participating in the litigation, with no reasonable explanation for such delay, amounted to a waiver. Hutzel, 33 So.3d at 1121-1122.

¶ 67. In this case, the plaintiffs filed their original complaint on September 26, 2006. The defendants participated actively in the litigation process by engaging in written discovery, deposing witnesses, and designating an expert witness. It was not until September 18, 2008, that the defendants filed their motion for summary judgment, based on duty-to-read and imputed-knowledge defenses. The defendants participated in the litigation actively for almost two full years before asserting the duty-to-read and imputed-knowledge defenses. The failure of the defendants to plead these defenses in a timely manner, coupled with their active participation in the litigation process, bars the defendants from belatedly asserting them, and it was error for the trial judge to dismiss this case on summary judgment on the basis of such untimely defenses.

¶ 68. Accordingly, I would reverse the trial court’s grant of summary judgment and remand the case for further proceedings.

GRAVES, Presiding Justice,

concurring in part and dissenting in part:

¶ 69. I disagree with the majority’s holding that summary judgment was improperly granted as to the issue of whether Schmidt breached his duty as an insurance agent and proximately caused any damages to the Mladineos. Because I would explicitly affirm the trial court in toto, I respectfully concur in part and dissent in part.

¶ 70. As stated by the majority, this Court repeatedly has held that knowledge of an insurance policy is imputed to an insured regardless of whether he has read the policy. See Stephens v. Equitable Life Assurance Soc’y of U.S., 850 So.2d 78, 83 (Miss.2003); Oaks v. Sellers, 953 So.2d 1077, 1083-84 (Miss.2007); Cherry v. Anthony, 501 So.2d 416, 419 (Miss.1987); and Atlas Roofing Mfg. Co. v. Robinson & Julienne, Inc., 279 So.2d 625, 629 (Miss.1973).

¶ 71. The majority finds that the “Mla-dineos did have possession of their policy for four months — enough time to have read the policy — -and are imputed with knowledge of the policy’s contents pursuant to our precedent.” (Maj. Op. at ¶ 27). The majority then offers an analysis of the negligence claim, correctly pointing out that the elements of a negligence claim are duty, breach of duty, proximate cause and damages. (Maj. Op. at ¶ 28). The majority finds that it is a question of fact whether Schmidt breached his duty or proximately caused any damages to the Mladineos. The majority holds that summary judgment was improperly granted, and remands the negligence claim against Schmidt to the trial court for proceedings to determine whether Schmidt breached his duty and proximately caused any damages. However, in the same opinion, the majority also holds:

The trial court was correct: even if Schmidt breached his duty as an insurance agent to procure the requested coverage, the Mladineos’ silence was the proximate cause of their damage. If they had executed their duty to read the policy, they would have noticed that the policy plainly did not cover the things that they assumed “hurricane” policies would cover. Therefore, the trial court is affirmed as to the dismissal of the claim for negligent failure to procure requested coverage.

(Maj. Op. at ¶ 38) (emphasis original).

¶ 72. The majority’s analysis is contradictory. The proximate cause of the Mla-dineos’ damages would remain the same under a negligence theory or a negligent-failure-to-procure theory. Likewise, the duty to read and the imputed-knowledge provisions would apply under both theories. Further, the majority also applies those provisions to the negligent-misrepresentation theory. The majority holds:

Based on the foregoing analysis, the Mladineos reasonably cannot have relied on the alleged assurances of coverage by Schmidt that directly contradicted the plain language of the policy they had in their possession. Because at least one of the elements required for a negligent-misrepresentation claim is not present, we affirm the trial court’s grant of summary judgment as to the claim of negligent misrepresentation.

(Maj. Op. at ¶ 47).

¶ 73. The majority contradicts itself once again in the last paragraph when it holds that summary judgment was improper as to the issue of Schmidt’s negligence, but was proper as to all other issues, “as well as to public policy.” (Maj. Op. at ¶ 61).

¶ 74. The majority fails to adequately explain how it carves out an exception to the duty to read and the imputed-knowledge provisions under only the negligence theory. The majority also fails to adequately explain how Schmidt possibly could have proximately caused the damages under the negligence theory but not under the negligent-failure-to-procure or negligent-misrepresentation theories, when all three theories are intertwined.

¶ 75. In the second amended complaint, the Mladineos asserted three counts: failure of an agent to procure requested coverage, negligence, and negligent misrepresentation. With regard to the negligence count, the Mladineos reasserted the allegations of their failure-to-procure count and also alleged:

Said defendants were negligent in not properly and completely inspecting the property; in not seeing the obvious pier and boathouse to the rear of the property; by not taking further precautions about procuring coverage for damage which could be caused by water, given the fact that the rear portion of the property was in a flood zone; by not ascertaining the exact flood plain status of the subject real property; by not informing John of the exact flood plain status of the subject real property; by being unfamiliar with the terms of the policies being marketed; by not informing John of the exclusions under the policy; by not offering flood insurance; by not maintaining proper notes and other documents, including a properly completed and signed application; and by other similar sloppy and negligent acts.

With regard to the negligent-misrepresentation count, the Mladineos also reasserted the allegations in the two prior counts. It is impossible to separate these counts.

¶ 76. Dr. John Mladineo testified during his deposition that he never had requested a separate flood insurance policy from Schmidt on the unoccupied, two-story home in Ocean Springs. Mladineo further testified that he never had asked Schmidt to investigate and determine the exact flood-plain status of the entire property and that he never read his policy once he received it. Further, Mladineo testified that Schmidt “also indicated ‘Since you were not in the flood plain, the bank would not require a flood pol — a separate flood policy.’ ” Later, Mladineo again testified: “I think his wording was, ‘Since you’re not in the flood plain, the bank would not require a separate flood insurance policy.’” This testimony does not indicate that Schmidt told Mladineo he did not need flood insurance, but merely says that the bank was not going to require it. Further, the claims for the pier and the boathouse ultimately were paid.

¶ 77. The majority cites McKinnon v. Batte, 485 So.2d 295, 297 (Miss.1986), for the duty of an insurance agent. However, McKinnon involved a jury verdict for the defendants, as opposed to summary judgment. Also, the McKinnon opinion opens with a statement that the “primary issue of this appeal is the duty owed by a licensed surveyor to those with whom he has contracted to perform a survey.” Id. at 296. More importantly, the portion of McKinnon on which the majority relies specifically says:

“It seems to be a well-settled rule that if an agent or broker with a view of being compensated agrees to procure insurance for another and through fault or neglect fails to do so, he will be liable for any damage that results thereby.” Simpson v. M-P Enterprises, Inc., 252 So.2d 202, 207 (Miss.1971). The standard of care of an insurance agent is “to use that degree of diligence and care with reference thereto which a reasonably prudent [person] would exercise in the transaction of his own business.” Security Insurance Agency, Inc. v. Cox, 299 So.2d 192, 194 (Miss.1974). The Court holds the jury was properly instructed as to the applicable standard of care for the defendant Batte.

McKinnon, 485 So.2d at 297.

¶ 78. Again, the instant case involves summary judgment, not jury instructions. Further, there is no evidence that Schmidt agreed to procure flood insurance for Mla-dineo and then failed to do so. Finally, there is no basis to find, under the applicable authority, that Schmidt somehow had a duty to sell the Mladineos more insurance than they actually sought to procure or to convince them to purchase additional policies which were not required.

¶ 79. As acknowledged by the majority, the Mladineos had a duty to read the policy, were imputed with knowledge of its terms and had the responsibility to cure any deficiencies in coverage. As also acknowledged by the majority, Schmidt was not the proximate cause of the Mladineos’ damages. The claims for negligence, negligent failure to procure, and negligent misrepresentation are intertwined and must be analyzed consistently. Because I would hold that the trial court must be affirmed in toto, I respectfully concur in part and dissent in part.

      . The issues will not be discussed in the order in which the Mladineos raised them. However, each issue will be addressed.

      . The Mladineos allege they later learned the rear portion of their property was, in fact, in a flood plain.

      . Peter v. Schumacher Enters., Inc., 22 P.3d 481, 486 (Alaska 2001).

      . Sadler v. Loomis, 139 Md.App. 374, 776 A.2d 25, 40 (2001).

        .Nelson v. Davidson, 155 Wis.2d 674, 456 N.W.2d 343, 346 (1990).

      . See e.g., Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172 (Miss.1990) (holding Andrew Jackson Life Insurance Company to be bound by the contract formed by its apparently authorized agents.)

      . Security Insurance Agency, Inc. v. Cox, 299 So.2d 192, 194 (Miss.1974), was a case involving an agency's duty to inform an insured that his policy on a rental house would not be renewed. Such is not the case here.


source: Caselaw Access Project

author: LAMAR, Justice, KITCHENS, Justice,

license: Public Domain

text:
    Jeremy WINTERS v. STATE of Mississippi.
    No. 2009-KM-00178-SCT.
    Supreme Court of Mississippi.
    Nov. 4, 2010.
    Rehearing Denied Feb. 17, 2011.

      Julie Ann Epps, Canton, attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
   LAMAR, Justice,

for the Court:

¶ 1. Twenty-year-old Jeremy Winters was convicted of felony driving under the influence (DUI), after his third DUI offense within five years and the trial judge’s determination that his blood-alcohol content (BAC) registered higher than .08%. He was sentenced to one year in the Mississippi Department of Corrections (MDOC) Intensive Supervision Program, followed by four years of probation. He appeals, claiming that the indictment was insufficient to charge him with felony DUI.

FACTS AND PROCEDURAL HISTORY

¶2. Jeremy Winters was arrested by Cleveland authorities for driving under the influence of intoxicants on November 11, 2006, at 1:56 a.m. This arrest followed at least two prior DUI convictions. Officer Charles Morris administered a breathalyzer test on the Intoxilyzer 8000, and Winters registered a BAC of .09%.

¶ 3. The indictment stated that Jeremy Winters “did unlawfully, wilfully and felo-niously drive or otherwise operate a vehicle while under the influence of an intoxicating liquor, while having two one-hundredths percent (.02%) or more by weight volume of alcohol in his blood.... ” The heading of the indictment read: “Felony DUI MCA Section 63 — 11— 30(l)(c).”

¶ 4. Winters waived his right to a jury trial and proceeded to a bench trial. At trial, Winters admitted to consuming one beer prior to driving and half a beer during the drive. He also admitted to consuming three beers earlier that evening around 7:00 p.m. The defense’s expert, Dr. Henry Outlaw, testified that Winters’s BAC was most likely between .068% and .076% at the time of arrest, based on information given by Winters himself. Under Dr. Outlaw’s findings, Winters would be guilty of a misdemeanor under the “Zero Tolerance for Minors” law (applicable to minors with a BAC of more than .02%, but less than .08%).

¶ 5. The State’s expert, Maury Phillips, rebutted Dr. Outlaw’s opinion and explained the process of the Intoxilyzer 8000. The Intoxilyzer tests itself for accuracy before and after registering a BAC. Phillips testified that Winters’s BAC at the time of the arrest was accurate on the Intoxilyzer 8000 at .09%. Under Phillips’s findings, Winters’s BAC would be too high to apply the “Zero Tolerance for Minors” law, and he would be guilty of felony DUI under Mississippi Code Section 63-11-30(2)(e) for his third offense.

¶ 6. Defense counsel previously had filed several motions regarding the indictment, including a motion to dismiss and a motion to quash based on insufficient notice. The defense argued that the indictment was ambiguous as to whether Winters was being charged under the felony DUI statute or under the “Zero Tolerance for Minors” law. The State argued that the indictment put Winters on notice that he was being charged with a DUI, and any sentence would be based on Winters’s BAC at the time of arrest. Further, the State argued that Winters’s BAC was a question of fact for the trial court to determine. The trial court denied both motions without explanation. The trial court ultimately found Winters guilty and sentenced him according to the felony DUI statute to one year in the Intensive Supervision Program and four years probation. Winters argues on appeal that the indictment does not charge felony DUI.

ANALYSIS

¶ 7. The question of whether the indictment was sufficient to notify Winters of the charge against him is a question of law, which this Court will review de novo. Generally, an indictment should be a “plain, concise and definite written statement of the essential facts constituting the offense charged” and should “fully notify the defendant of the nature and cause of the accusations against him.” An indictment is considered sufficient if it tracks the language of the statute under which it is drawn. However, it is not a requirement that the indictment use the exact words of the statute if the crime can be substantially described without using them. In most instances, it is not necessary to recite the code section under which the indictment is being drawn; however, it is recommended.

¶ 8. Winters’s indictment specifically references Section 63 — 11—30(l)(c), which states:

(1) It is unlawful for any person to drive or otherwise operate a vehicle within this state who ... (c) has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons who are above the legal age to purchase alcoholic beverages under state law, or two one-hundredths percent (.02%) or more for persons who are below the legal age to purchase alcoholic beverages under state law[.]

This provision of the DUI statute defines the crime and is the starting point for subsequent sections which provide the sentencing guidelines. Contained within the DUI statute is the “Zero Tolerance for Minors” law, which establishes less severe penalties for persons under the age of twenty-one. But, the “Minors” law applies only to underage persons with a BAC of more than .02%, but less than .08%. Specifically, the statute states:

The provisions of this subsection shall apply only when a person under the age of twenty-one (21) years has a blood alcohol concentration two one-hundredths percent (.02%) or more, but lower than eight one-hundredths percent (.08%). If such person’s blood alcohol concentration is eight one-hundredths percent (.08%) or more, the provisions of subsection (2) shall apply.

Although Winters was under twenty-one at the time of his arrest, the “Zero Tolerance for Minors” law does not apply, because the trial judge, as the trier of fact, found Winters’s BAC to be higher than .08%. So Winters’s conviction falls under Section 63-11-30(2), which applies to all individuals with a BAC of more than .08%. Further, Winters falls under Section 63 — 11— 30(2)(c), as this DUI charge is at least his third offense within five years. Thus, the trial judge sentenced him appropriately.

It 9. We disagree with Winters’s argument that the language in the indictment does not charge him with felony DUI. While it is true that the indictment does not specifically state “.08%,” it does state that Winters operated a vehicle while having two one-hundredths percent (.02%) or more by weight volume of alcohol in his blood. And the indictment states that Winters feloniously drove or otherwise operated a vehicle while under the influence of an intoxicating liquor, and is headed “FELONY DUI MCA Section 63-11-30(l)(c).” Finally, the indictment clearly lists Winters’s previous convictions for DUI, which should have put him on notice that the State was seeking an enhanced penalty. We find that the indictment “fully notified” Winters of the “nature and cause of the accusations against him.”

¶ 10. We also disagree with Winters’s argument that Broadus v. State should control the outcome of today’s case. In Broadus, the indictment charged the defendant with the sale of marijuana, but it did not specify the amount of marijuana. Broadus filed a demurrer to the indictment, arguing that the failure to state an amount meant that his offense potentially could have fallen under two different statutes. The trial court overruled the demurrer, holding that the indictment properly charged Broadus with the crime of unlawful sale of marijuana. But because no amount was stated in the indictment, the trial judge sentenced Broadus under the statute prescribing the lesser penalty. On appeal, this Court held that the trial judge acted properly, reiterating the rule that when there is substantial doubt as to which statute should be applied, the court will apply the one with the lesser penalty.

¶ 11. We find Broadus distinguishable from the case at hand. First, Winters’s indictment is not completely silent as to the amount of alcohol in his blood. The indictment specifies a BAC of .02% or more. The addition of the words “or more” could be read to include a BAC of up to .08%, or even higher. Second, the indictment lists all of Winters’s prior convictions for DUI, which should have put him on notice that the State intended to pursue a conviction for a third or subsequent DUI. Finally, the indictment charges Winters with “feloniously” operating a vehicle while under the influence, and it is headed “FELONY DUI MCA Section 68 — 11—30(1) (c)We find that there was no “substantial doubt” as to which statute should be applied in this case, and Winters therefore was properly sentenced.

CONCLUSION

¶ 12. Based on the foregoing, we find that the indictment charged Winters with felony DUI. We therefore affirm the judgment and sentence of the Bolivar County Circuit Court.

¶ 18. CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE AND SENTENCE OF ONE (I) YEAR IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, INTENSIVE SUPERVISION PROGRAM, FOLLOWED BY FOUR (4) YEARS PROBATION, WITH CONDITIONS, AFFIRMED.

WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J.

KITCHENS, Justice,

Dissenting:

¶ 14. I respectfully disagree with today’s decision that the indictment sufficiently charged Jeremy Winters with felony DUI. Because the indictment was incurably ambiguous as to whether Winters was charged 'with a felony or a misdemeanor, the trial court should not have sentenced him for a felony, only for a misdemeanor. Clubb v. State, 672 So.2d 1201, 1206 (Miss.1996). Therefore, I would reverse the judgment and remand the case for resentencing under Mississippi Code Section 63-11-30(3)(d) (Rev.2004).

¶ 15. Winters was indicted for violating Mississippi Code Section 63 — 11—30(l)(c), and an essential element under subsection (l)(c) is blood-alcohol content: .02% or more for minors and .08% or more for adults. Sentencing, and hence whether the crime is classified as a misdemeanor or felony, is determined by subsections (2) or (3) and is dependent upon age, blood alcohol content (BAC), and the number of the defendant’s prior DUI convictions, if any. Miss.Code Ann. § 63-11-30(2), (3) (Rev. 2004). Subsection (3), the so-called “Zero Tolerance for Minors” law, sets out lesser penalties for persons who are under the age of twenty-one years and have a BAC of more than .02% but less than .08%.

¶ 16. Winters’s indictment did not indicate whether the State was seeking penalties under subsection (2) or (3). Being under the age of twenty-one years at the time, Winters could have been sentenced under subsection (2) for a felony only if his BAC was .08% or higher. However, the Winters indictment alleged that the accused’s BAC was “.02% or more,” thus implicating subsection (3), the Zero Tolerance for Minors law. Winters’s indictment also alleged that he “feloniously” operated a vehicle while under the influence, thus implicating subsection (2), which provides for a greater penalty.

¶ 17. Given the inherent conflict, in this context, between the language .02% or more and feloniously, our law mandates that Winters be given the lesser sentence. “[I]f the indictment is ambiguous, the accused can only be punished under the statute with the lesser penalty.” Clubb, 672 So.2d at 1206 (quoting Beckham v. State, 556 So.2d 342, 343 (Miss.1990)). Therefore, in cases involving controlled substances where the amount was not specified in the indictment, this Court consistently has held that the defendant must receive the lesser sentence. Clubb, 672 So.2d at 1206; Ivy v. State, 589 So.2d 1263, 1264 (Miss.1991); Burns v. State, 438 So.2d 1347, 1353 (Miss.1983); Broadus v. State, 392 So.2d 203, 205 (Miss.1980). As with violations of our controlled substances laws, driving under the influence under Section 63 — 11—30(1)(c) requires proof of quantity. That the essential element in the present case is blood-alcohol content, rather than the weight or the number of dosage units of a controlled substance, is immaterial to our analysis, and there is no relevant distinction between the legal principles governing drug cases and the case before us.

¶ 18. My colleagues in the majority attempt to distinguish Broadus on several grounds. First, the majority finds it noteworthy that the indictment in the Broadus case was completely silent about the amount of marihuana, while Winters’s indictment specifies a BAC of .02% or more. This is a distinction without a difference, and we have said clearly that an indictment is flawed when it is “vague, ambiguous, or silent as to the amount.” Clubb, 672 So.2d at 1206 (emphasis added). Here, there can be no reasonable disagreement that “.02% or more” and “feloniously” render the indictment ambiguous regarding the grade (misdemeanor or felony) of the offense with which Winters was charged.

¶ 19. Second, the majority declares that “the indictment listed all of Winters’s prior convictions for DUI, which should have put him on notice that the State intended to pursue a conviction for a third or subsequent DUI.” Again, this does not justify the trial judge’s imposition of a felony sentence, because the Zero Tolerance for Minors law also provides a greater sentence for subsequent convictions. Specifically, subsection (3)(d) provides:

For any third or subsequent conviction of any person under the age of twenty-one (21) years violating subsection (1) of this section, the offenses being committed within a period of five (5) years, such person shall be fined not more than One Thousand Dollars ($1,000.00) and shall have his driver’s license suspended until he reaches the age of twenty-one (21) or for two (2) years, whichever is longer.

Miss.Code Ann. § 63 — 11—30(3)(d). Indeed, Winters has not denied his prior convictions; he simply argues that he should have been sentenced under subsection (3)(d).

¶ 20. Third, the majority finds that the word “feloniously” and the heading “Felony DUI MCA Section 63-ll-30(l)(c)” somehow cure the ambiguity. But, as explained above, it is exactly these words, when coupled with an allegation of blood-alcohol content of “.02% or more,” that create the ambiguity. Listing “Section 63 — 11—30(1) (c)” in the heading likewise is of no help, because one who violates subsection (l)(c) may be guilty of either a misdemeanor or a felony. Moreover, to say that language in the heading or caption of an indictment, which in reality is editorial in nature, or citation to the statute, can heal the ills found in the formal, charging language, is to elevate form over substance, a practice this Court historically has repudiated. See e.g., Golden v. State, 968 So.2d 378, 386 (Miss.2007) (where there is a conflict between. the heading of an indictment and the substance of the charging document, the language of the indictment controls); Pearson v. State, 248 Miss. 353, 358-59, 158 So.2d 710, 712 (1963) (“[I]t is not ordinarily necessary to designate the statute under which an indictment is drawn, and an indictment which properly charges the commission of a crime, in the language of the statute, or in words aptly describing or charging the offense, is sufficient.” (citations omitted)); Dendy v. State, 224 Miss. 208, 213, 79 So.2d 827, 829 (1955) (“[R]ef-erence to the code section in the indictment was surplusage and unnecessary to the charge of the crime for which appellant was tried.”).

¶ 21. Finally, the majority reasons that “[t]he addition of the words ‘or more’ could be read to include a BAC of up to .08% or even higher.” (Emphasis added.) Yet, it is equally likely that the words “.02% or more” could be read to mean something less than .08%. The majority’s speculation that the indictment might have charged a felony is in direct contradiction to the longstanding and well-established requirement that an indictment be “a plain, concise and definite written statement of the essential facts constituting the offense chai*ged and shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06 (emphasis added). See also Nguyen v. State, 761 So.2d 873, 875 (Miss.2000); State v. Hoffman, 508 So.2d 669, 671 (Miss.1987). “Could be” is not “definite,” and it certainly cannot satisfy our constitutions’ guarantees of due process of law and notice of criminal accusations. U.S. Const, amends. VI, XIV; Miss. Const. art. 3, §§ 14, 26.

¶ 22. While we have numerous cases, statutes, and a uniform rule that speak to the importance of a properly drafted indictment, we must not forget that these laws serve to protect greater constitutional guarantees. U.S. Const, amends. VI, XIV; Miss. Const. art. 3, §§ 14, 26. “It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948) (citing De Jonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278 (1937)). Hence, due process of law requires that when the facts alleged in the indictment could fall under either of two statutes, the statute which imposes the lesser punishment must apply. Grillis v. State, 196 Miss. 576, 17 So.2d 525 (1944). Because the majority fails to honor this venerable rule, I respectfully dissent.

GRAVES, P.J., JOINS THIS OPINION.

      . It is not clear from the record whether Winters had been convicted of DUI two or three times before. Although the text of the indictment states that Winters "has been previously convicted twice before,” it goes on to list three separate offenses. But, whether Winters’s current conviction is his third or fourth is immaterial, because the punishment is the same for any "third or subsequent” conviction. See Miss.Code Ann. § 63 — 11— 30(2)(c) (Rev.2004).

      . See Miss.Code Ann. § 63-11-30(3)(a) (Rev. 2004). .

      . Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 893 (Miss.2006).

      . URCCC 7.06; State v. Hoffman, 508 So.2d 669, 671 (Miss.1987); see Williams v. State, 445 So.2d 798 (Miss. 1984).

      . Cantrell v. State, 507 So.2d 325, 329 (Miss.1987); see Ward v. State, 479 So.2d 713, 715 (Miss.1985); Hines v. State, 472 So.2d 386, 390 (Miss.1985); see also Hickombottom v. State, 409 So.2d 1337 (Miss.1982).

      . Reining v. State, 606 So.2d 1098, 1103 (Miss.1992).

      . Martin v. State, 501 So.2d 1124, 1126 (Miss.1987).

      . Miss.Code Ann. § 63-11-30(3)(a) (Rev. 2004).

      . Miss.Code Ann. § 63-11-30(3)(a) (Rev. 2004) (emphasis added).

      . "Except as otherwise provided in subsection (3) ["Zero Tolerance for Minors" law], for any third or subsequent conviction of any person violating subsection (1) [general DUI statute] of this section, the offenses being committed within a period of five years, such person shall be guilty of a felony....”

      .We also note that, in several pretrial motions, Winters’s counsel stated that "the Defendant is charged with felony DUI.” It is clear from the record that Winters was aware that the State was seeking a felony DUI conviction.

      . State v. Hoffman, 508 So.2d 669, 671 (Miss.1987).

      . Broadus v. State, 392 So.2d 203 (Miss.1980).

      . Winters actually argues that Ivy v. State, 589 So.2d 1263 (Miss.1991), should be dispos-itive. However, after reading Ivy, it is clear that the defense is actually arguing the facts of Broadus v. State, 392 So.2d 203 (Miss.1980), a case cited within.

      . Broadus, 392 So.2d at 204.

      . Id.; see Miss.Code Ann. § 41-29-139(b) (Rev.2009) (current statute setting out the various penalties for the sale of marijuana).

      . Id. at 205.

      . Id.; see also White v. State, 374 So.2d 225, 227 (Miss.1979) ("We are therefore compelled to apply the rule that, when the facts which constitute a criminal offense may fall under either of two statutes, or when there is substantial doubt as to which of the two is to be applied, the case will be referred to the statute which imposes the lesser punishment.”).

      . Broadus, 392 So.2d at 205 (citing White v. State, 374 So.2d 225 (Miss.1979)).

      . White, 374 So.2d at 227.


author: WALLER, Chief Justice,

text:
    COMMUNITY BANK OF MISSISSIPPI and Raymon McAlpin a/k/a Raymond McAlpin v. Donna STUCKEY.
    No. 2008-CT-01521-SCT.
    Supreme Court of Mississippi.
    Dec. 9, 2010.
    Rehearing Denied Feb. 10, 2011.

      Mandie B. Robinson, Alan W. Perry, Jackson, J. Chase Bryan, Clay W. Slay, G. David Garner, Raleigh, for Appellant.
    David Shoemake, A. Regnal Blackledge, for Appellee.
   ON WRIT OF CERTIORARI

WALLER, Chief Justice,

for the Court:

¶ 1. Community Bank filed suit against Donna Stuckey, alleging that she had defaulted on a loan for a cattle operation run by Donna and her husband, Mike. Donna alleged that her signature was forged on this cattle-business loan and on documents related to several other cattle-business loans as well. As a separate matter, Donna alleged that the Bank had made certain misrepresentations concerning an eleven-acre parcel for which the Stuckeys had executed a deed of trust. When the Bank sought to compel arbitration, Donna alleged that her signatures on the arbitration agreements accompanying the cattle-business loans and the eleven-acre deed of trust were forgeries. The trial court found no convincing evidence that Donna had signed any of the pertinent arbitration agreements; therefore, it refused to compel arbitration. We find that the trial court’s findings are not clearly erroneous. Furthermore, because of the Bank’s impropriety, we refuse even to consider binding Donna to arbitration as a third-party beneficiary or based on the principle of equitable estoppel. We thus reverse the Court of Appeals and reinstate and affirm the trial court’s judgment.

FACTS & PROCEDURAL HISTORY

¶ 2. Mike and Donna Stuckey operated a cattle business named Stuckey Farms. According to Donna, Mike befriended Raymond McAlpin, a loan officer at the Community Bank in Raleigh, Mississippi, and made McAlpin a business partner.

¶ 8. While McAlpin made numerous loans to the Stuckeys during the time of his partnership, this dispute concerns only four loans. Three of the loans concerned the Stuckeys’ cattle business. The fourth involved a deed of trust on an eleven-acre parcel. The Stuckeys executed the deed of trust in the name of Appleridge Estates, LLC, and hoped to develop the property for residential use. All four loans included an arbitration agreement.

¶ 4. In June 2006, Community Bank filed a replevin suit to obtain possession of personal property offered by the Stuckeys as collateral for several of the cattle-business loans. The Bank alleged that Mike had defaulted on six cattle-business loans, and that Donna had defaulted on a June 16, 2003, cattle-business loan, numbered 6803148.

¶ 5. Mike and Donna each filed separate answers and counterclaims. In her counterclaim, Donna alleged forgery, conversion, misrepresentation, breach of fiduciary duties, breach of the duty of good faith and fair dealing, breach of warranty, intentional or negligent infliction of emotional distress, damage to credit reputation, and gross negligence.

¶ 6. Donna’s counterclaim made two separate allegations. First, she contended that McAlpin and the Bank had forged her signature on the June 2003 cattle-business loan, and that her signature had been forged on two other cattle-business loans as well, one dated April 2004 and another dated February 2003. Second, Donna asserted that McAlpin had made misrepresentations to induce the Stuckeys to execute the Appleridge Estates deed of trust.

¶ 7. The Bank responded with a motion to compel arbitration. Donna opposed this motion, insisting that she had never signed any arbitration agreement. Donna maintained that she went to the Bank only once, on May 12, 2003, to sign the Appler-idge Estates deed of trust. She freely admitted signing the deed of trust, but she adamantly denied signing any arbitration agreement attached to that deed of trust.

¶ 8. The Bank and Donna each obtained a handwriting expert. Their experts’ divergent opinions are discussed later in the opinion.

¶ 9. The trial court ordered Mike’s claims to arbitration, but refused to compel arbitration as to Donna. The trial court concluded “[t]hat there does not exist convincing evidence that Donna ... executed any of the subject arbitration agreements .... ” It further found that Donna had no interest in the Stuckey Farms cattle operation, and therefore, she was not a third-party beneficiary of the cattle-business loans.

¶ 10. The Court of Appeals reversed and remanded the judgment of the trial court. It found that Donna was bound to arbitration as a third-party beneficiary; hence, it was unnecessary to determine whether she actually had signed any of the arbitration agreements. The Court of Appeals further found that Donna was equitably estopped from asserting claims based on the loan documents while simultaneously claiming that she was not bound by the arbitration provisions in those same documents.

¶ 11. Donna, aggrieved by the Court of Appeals’ decision, filed this petition for writ of certiorari, which we granted.

DISCUSSION

¶ 12. We review the denial of a motion to compel arbitration de novo. United Credit Corp. v. Hubbard, 905 So.2d 1176, 1177 (Miss.2004).

I. Whether Donna signed an arbitration agreement attached to the Ap-pleridge Estates deed of trust or the June 2003 cattle-business loan.

¶ 13. By alleging that she never signed any arbitration agreement, Donna challenges the existence of a valid agreement to arbitrate. The trial court made a factual finding “[tjhat there does not exist convincing evidence that Donna ... executed any of the subject arbitration agreements .... ” We must accept a trial court’s factual findings unless they are “clearly erroneous,” i.e., evidence exists to support the findings, but after reviewing the entire evidence, we are left with a “definite and firm conviction that a mistake has been made.” UHS-Qualicare, Inc. v. Gulf Coast Cmty. Hosp., Inc., 525 So.2d 746, 753-54 (Miss.1987) (citations omitted).

A. The Appleridge Estates deed of trust

¶ 14. Though some evidence suggests that Donna signed a version of an arbitration agreement for the Appleridge Estates deed of trust, we are not firmly convinced that the trial court made a mistake in concluding that she had not signed any arbitration agreement.

¶ 15. As it turns out, thei'e are two different arbitration agreements for the Appleridge Estates deed of trust, both dated May 12, 2003. Each agreement refers to the same loan number, bears the same date, and obligates the same amount of money to the borrowers. Yet there are glaring differences between the two documents. To add to the confusion, the two experts based them opinions on different versions.

¶ 16. The Bank’s expert, Grant Sperry, referenced an arbitration agreement Bates-stamped ORG-000098 and ORG-000099. This particular agreement was signed by Mike, Donna, and McAlpin. The signature line lists Donna as “Vice President” and “Member” of Appleridge Estates, LLC. The title “Vice President,” however, is manually crossed out with Donna’s initials alongside. Sperry concluded to a reasonable degree of certainty that Donna had signed this particular document, referred to here as the “Sperry agreement.”

¶ 17. In contrast to the “Sperry agreement,” the agreement to which Donna’s expert, Robert Foley, referred is Bates-stamped ORG-0000101 and ORG-0000102. It was signed by Mike, Donna, and an individual apparently named Dennis, whose last name is undiscernible. One signature line merely lists Donna’s name, while the other line lists her as “Member” of Appleridge Estates, LLC. Foley found a “strong probability” that Donna had not signed this document, referred to here as the “Foley agreement.”

¶ 18. Sperry and Foley thus rendered opinions based on two different, May 12, 2003, arbitration agreements. It is unclear whether either expert examined the version referenced by the other.

¶ 19. In her sworn affidavit and in her deposition testimony, Donna denied signing any arbitration agreement on May 12, 2003. The Bank confronted Donna in her deposition about the striking similarities between her actual signature and the signature on page ORG-000099 of the Sperry agreement. She answered, “I did not sign that. If a handwriting expert says I did, then I’m wrong, but I did not sign that.... [F]or all I know, they traced it.”

¶ 20. Because of the evidentiary morass of different versions of the same document together with conflicting expert and deposition testimony, we cannot say that the trial court clearly erred in finding no convincing evidence that Donna had signed any arbitration agreement pertaining to the Appleridge Estates deed of trust.

B. The June 2003 cattle-business loan

¶ 21. As with the arbitration agreements for the Appleridge Estates deed of trust, it appears once again that Donna’s and the Bank’s respective experts did not review the same document and that they based their opinions on two different documents.

¶ 22. Donna’s expert, Foley, concluded that the arbitration agreement for the June 2003 cattle-business loan, numbered 6803148, was forged by Donna’s husband, Mike. The Bank’s expert, Sperry, countered that Donna had signed an arbitration agreement dated June 16, 2003. But the agreement that Sperry referenced pertained to a different loan — loan number 6803091. He provided no opinion as to any arbitration agreement associated with the June 2003 cattle-business loan, numbered 6803148, which is the loan that is relevant to this case.

¶ 23. We cannot say that the trial court clearly erred in finding that Donna did not sign any arbitration agreement for the June 2003 cattle-business loan.

II. Whether Donna should be bound to arbitration as a third-party beneficiary or based on the principle of equitable estoppel.

¶ 24. Though the Bank contends that Donna actually signed an arbitration agreement for the Appleridge Estates deed of trust and for the June 2003 cattle-business loan, it argues, alternatively, that Donna is bound to arbitration as a third-party beneficiary or based on the principle of equitable estoppel. Moreover, the Bank does not seem to challenge Donna’s allegations that her signature was forged to the arbitration agreements for the April 2004 and February 2003 loans. The Bank instead maintains that Donna is bound to arbitrate any claims with respect to these particular loans because of her third-party-beneficiary status or based on the principle of equitable estoppel.

¶ 25. We have recognized that “a signatory may enforce an arbitration agreement against a non-signatory if the non-signatory is a third-party beneficiary....” Qualcomm v. American Wireless Group, 980 So.2d 261, 269 (Miss.2007) (citing Adams v. Greenpoint Credit, LLC, 943 So.2d 703, 708 (Miss.2006)). Equitable estoppel, on the other hand, prevents a party from embracing the benefits of a contract while simultaneously trying to avoid its burdens. See Terminix Int’l, Inc. v. Rice, 904 So.2d 1051, 1058 (Miss.2004) (quoting Washington Mut. Fin. Group, LLC v. Bailey, 364 F.3d 260, 268 (5th Cir.2004)). We elect not to address or apply either theory in this case, however, because of the impropriety involved in this case.

¶ 26. The Bank’s motion to compel arbitration is, in essence, a request for specific performance. E.g., Cost Bros., Inc. v. Travelers Indem. Co., 760 F.2d 58, 59 n. 1 (3d Cir.1985). It is a fundamental principle of law that he who seeks equitable relief, such as specific performance, must do so with clean hands. E.g., Pickett v. Boutwell, 240 Miss. 18, 22, 125 So.2d 822, 823 (Miss.1961).

¶ 27. The Bank’s hands are tainted here due to several apparently uncontested forgeries. Donna alleges that on several occasions, Mike forged her signature at the behest of McAlpin, an employee of the Bank. It appears that others forged Donna’s signature as well. Regardless of who the forger might have been, we will not compel arbitration based on third-party-beneficiary status or equitable estoppel where the movant has encouraged or engaged in forging the nonmovant’s signature. Accordingly, we find that Donna is not bound to arbitrate her claims as a third-party beneficiary or based on the principle of equitable estoppel.

CONCLUSION

¶ 28. We find that the trial court did not clearly err in finding no convincing evidence that Donna had signed any of the subject arbitration agreements. And because the Bank comes before us with unclean hands, we refuse to consider binding her to arbitration as a third-party beneficiary or based on the principle of equitable estoppel. We thus reverse the Court of Appeals and reinstate and affirm the trial court’s refusal to compel arbitration.

¶ 29. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE COVING-TON COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

CARLSON AND GRAVES, P.JJ., DICKINSON, LAMAR, KITCHENS AND CHANDLER, JJ., CONCUR. RANDOLPH AND PIERCE, JJ., NOT PARTICIPATING.