author: CHANDLER, Justice, CARLSON,

text:
    Arvin Phillip JOHNSON v. STATE of Mississippi.
    No. 2009-CT-00552-SCT.
    Supreme Court of Mississippi.
    Nov. 17, 2011.

      Robert B. McDuff, Sibyl C. Byrd, Michael P. Addis, Charles E. Lawrence, Jr., Charles E. Lawrence, III, attorneys for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
   ON WRIT OF CERTIORARI

CHANDLER, Justice,

for the Court:

¶ 1. On February 27, 2009, Arvin Phillip Johnson was convicted of possession of cocaine and sentenced to sixteen years in the custody of the Mississippi Department of Corrections, with nine years suspended, five years of post-release supervision, and a $3,000 fine. The Court of Appeals affirmed Johnson’s conviction and sentence. Johnson v. State, 49 So.3d 130, 138 (Miss.Ct.App.2010). Johnson petitioned this Court for a writ of certiorari concerning two issues: (1) whether the State presented sufficient evidence to sustain Johnson’s conviction of cocaine possession; and (2) whether the agents’ search of a nearby vehicle violated Johnson’s right to be free from unreasonable searches and seizures within the Fourth and Fourteenth Amendments to the United States Constitution and Sections 14 and 23 of the Mississippi Constitution.

¶2. This Court has granted Johnson’s certiorari petition, and we find Johnson’s first issue to be dispositive. The State failed to prove beyond a reasonable doubt that Johnson was in constructive possession of the cocaine found in the nearby vehicle. Therefore, the circuit court erred by denying Johnson’s motion for judgment notwithstanding the verdict (JNOV). Finding that proximity alone is insufficient to show constructive possession, and that the State presented no additional incriminating circumstances, we reverse the Court of Appeals’ judgment and that of the trial court and render judgment in Johnson’s favor.

FACTS

¶ 3. On December 5, 2006, at approximately 6:25 p.m., agents from the Mississippi Bureau of Narcotics (MBN) were in Marion County, Mississippi, conducting a drug buy/bust operation. The target of the operation was “Teddy,” who allegedly was selling drugs out of a small, locally owned convenience store located on Highway 13 South. The MBN agents used a wired, confidential informant to make contact with Teddy to buy some marijuana using marked “buy” money. There were two MBN teams: one located north of the store and one located south of the store. When the informant arrived at the store to purchase drugs from Teddy, Teddy called a man named Walter to bring the marijuana to the store. Walter arrived with the drugs shortly thereafter, and Teddy sold the drugs to the informant. The informant then left the store with the marijuana. After Walter drove away with half of the marked buy money, one of the MBN teams left the scene to arrest him.

¶ 4. When the other MBN agents went to the store to arrest Teddy, they saw a car parked under the store’s awning between the gas pumps and the front door of the convenience store. The car had not been at the station when Teddy had sold the drugs to the informant just a few minutes prior. The agents also saw an unknown individual, later identified as Johnson, near the car, talking to Teddy. To secure the scene, the agents handcuffed Johnson and Teddy and had them lie face down on the ground. Johnson was not under arrest at the time. The agents conducted a pat-down search of both men, but found no incriminating evidence or weapons. After conducting a search of the nearby vehicle, the agents discovered a white, rock-like substance, later confirmed to be .7 gram of cocaine, above the car’s driver-side visor.

¶ 5. Johnson later was indicted for possession of a controlled substance (cocaine) in violation of Mississippi Code Section 41-29-139(c) (Rev.2009). Johnson was charged as a subsequent offender under Section 41-29-147 based on his previous conviction for possession of a controlled substance. During his trial, Johnson filed a motion to suppress the evidence of the cocaine, claiming the search was illegal. The circuit judge denied the motion, and Johnson was found guilty of cocaine possession. Johnson filed a motion for (judgment notwithstanding the verdict) or, in the alternative, a new trial, on the basis that the State had failed to present sufficient evidence to establish the elements of constructive possession. The circuit court denied the motion, and the Court of Appeals affirmed the judgment of the circuit court. Aggrieved, Johnson petitioned this Court for a writ of certiorari, which we granted.

STANDARD OF REVIEW

¶ 6. A motion for JNOV challenges the legal sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (Miss.2005). When examining the sufficiency of evidence in the grant or denial of a motion for directed verdict or for judgment notwithstanding the verdict, it is necessary to determine whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). If any facts or inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.” Bush, 895 So.2d. at 843 (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

DISCUSSION

¶ 7. “[Possession of a controlled substance may be actual or constructive. ...” Berry v. State, 652 So.2d 745, 748 (Miss.1995) (citing Wolf v. State, 260 So.2d 425, 432 (Miss.1972)). In Curry v. State, 249 So.2d 414, 416 (Miss.1971), this Court stated that, in order to establish constructive possession, “there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.”

¶ 8. Because Johnson did not have actual possession of the cocaine, Johnson was found guilty of constructive possession; therefore, he asserts that the State failed to prove both elements for constructive possession. “Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.” Curry, 249 So.2d at 416. “Constructive possession may be shown by establishing that the drug involved was subject to [the defendant’s] dominion or control.” Hudson v. State, 30 So.3d 1199, 1204 (Miss.2010). This Court has held that “absent some competent evidence connecting him with the contraband,” the defendant is entitled to acquittal. Powell v. State, 355 So.2d 1378, 1379 (Miss.1978) (citations omitted).

¶ 9. The Court of Appeals found that the State had presented sufficient incriminating facts to support constructive possession. Johnson, 49 So.3d at 137. We respectfully disagree.

¶ 10. It is undisputed that the car in which the cocaine was found was not at the gas station at the time the informant bought the marijuana from Teddy. Neither was Johnson at the gas station at the time of the drug exchange. Both the vehicle and Johnson arrived at the gas station within the short time between the drug exchange and the MBN agents’ arrival. However, the State presented no evidence showing that Johnson had driven the car to the gas station or that he had been a passenger of the car. The Court of Appeals recognized that investigation had determined that Johnson was not the owner of the vehicle and that no actual evidence existed regarding who owned the car. Johnson, 49 So.3d at 137.

¶ 11. The Court of Appeals found that, because Johnson had raised no objection to the testimony regarding ownership of the car, the jury could have drawn a reasonable inference as to Johnson’s relation to the owner of the vehicle. Id. However, the State has the burden of establishing constructive possession. Sisk v. State, 290 So.2d 608, 610 (Miss.1974). The State solely used Agent Jonathan Harless’s testimony to establish Johnson’s connection to the cocaine in the vehicle. When asked if the vehicle was registered in Johnson’s name, Harless testified that it was not. Harless’s testimony also revealed that no legal documents indicated Johnson was the owner of the car. Further, Harless could not recall exactly who the car belonged to or who actually picked up the car from the scene. When asked about the ownership of the car, he stated, “I believe going from memory, and I could be incorrect, I believe the owner was Mr. Johnson’s mother.” He also stated that he was unsure whether Johnson’s father or another family member took custody of the vehicle.

¶ 12. The dissent relies on Dietz v. Consolidated Oil & Gas, Inc., 643 F.2d 1088, 1094 (5th Cir.1981) and would affirm the trial court. In that case, which concerned a dispute over mineral rights, the plaintiff testified to his lost profits based on his recollection. Also, the record in that case contained information which could have been used to impeach the plaintiffs testimony based on his recollection. Id. at 1093. Dietz is a civil case in which the plaintiff had merely to show, more likely than not, that the defendant was liable. The State in the present case was required to prove guilt beyond a reasonable doubt, and this Court finds that Harless’s testimony does not meet that burden. In the present case, the State did not provide any competent evidence as to the owner of the car or who moved the car from the scene. Black’s Law Dictionary defines speculation as “[t]he act or practice of theorizing about matters over which there is no certain knowledge.” Black’s Law Dictionary 1435 (8th ed. 2004). Harless admitted that his testimony might be incorrect. In fact, whenever he was asked if the police ever discovered the owner of the car, he replied, “I do not recall.” Harless’s testimony also was vague as to who took custody of the car after Teddy’s arrest. He stated, “I’m unsure if it was your client’s father or one of his family members arrived I believe to take custody of the vehicle.” His testimony is not supported by any other evidence found in the record.

¶ 13. It is elementary that the burden of proof is on the State to establish ownership of the automobile. Johnson’s failure to object to Harless’s testimony cannot be used to support an inference that Johnson was affiliated with the car. The State failed to present sufficient evidence as to the ownership of the car or who actually removed the car after Teddy’s arrest.

¶ 14. In addition to proving Johnson had dominion and control over the car, the State also is required to show additional incriminating circumstances. Specifically, the State must prove that Johnson was intentionally and consciously in possession of the cocaine.

¶ 15. This Court has deemed evidence insufficient in cases where the State presented far more evidence than in the present case. In Fultz v. State, 573 So.2d 689 (Miss.1990), the defendant was convicted on the grounds of constructive possession with the intent to sell marijuana. Id. The defendant was pulled over for suspicious driving and was the only occupant of the car. Id. The police later discovered that the car actually belonged to the defendant’s sister. Id. at 690. After the defendant was arrested, the police conducted an inventory search and found marijuana in the trunk of the car. Id. Not only did the defendant have marijuana on him at the time, but at the time of the arrest, he also admitted to having smoked marijuana. Id. This Court ultimately held that the State had failed to present sufficient evidence to establish constructive possession. In reversing Fultz’s conviction, this Court focused on the police’s lack of effort to investigate further:

Evidence of such a questionable quality cannot take the place of good police work. We cannot help but wonder why the police department failed to dust the trunk for fingerprints or for that matter the bags themselves. Also why didn’t they try to determine if the defendant owned the duffel bag or any of the other items in the trunk. This could have bolstered their case considerably. It also would have been helpful to question the owner of the car. In light of this poor police work, and the absence of any evidence connecting the defendant with the trunk or any of its contents, we have no choice but to reverse this conviction and discharge the defendant.

Id. at 691.

¶ 16. Similar to the defendant in Fultz, Johnson was not the owner of the car. In fact, no one ever saw Johnson in the car or driving the car. However, the State and the Court of Appeals referred to Johnson as the driver of the car, although no evidence was presented to that effect. Johnson, 49 So.3d at 137. The police did not determine who actually owned the car or who had arrived to recover the car from the crime scene. Even if Johnson had been driving the car, like the defendant in Fultz, the white plastic bag that contained the cocaine was above the sun visor, which was in the upright position. The police did not find Johnson’s fingerprints on the bag containing the cocaine. In fact, the police did not even check the bag for fingerprints. When the agents performed a pat-down on Johnson, they found no incriminating evidence or weapons. This Court reversed Fultz’s conviction based on lack of sufficient evidence, and we find that Johnson’s conviction must be reversed for the same reason.

¶ 17. Also, in Ferrell v. State, 649 So.2d 831, 835 (Miss.1995), this Court held the State had failed to prove constructive possession of drugs found in a matchbox next to the driver seat of the defendant’s car. Ferrell, 649 So.2d at 835. The defendant did not own the vehicle, but had been in possession of the vehicle for fifteen hours. Id. This Court reversed Ferrell’s conviction because there were no additional incriminating circumstances. Id. “No drug paraphernalia was found in the car, Ferrell was not on drugs at the time he was arrested, and his fingerprints were not found on the matchbox.” Id. This Court cited Fultz to support its reasoning, stating that:

The contraband was not positioned in such a way that its presence would be reasonably apparent to a person riding in the car. The mere fact that the matchbox was only a matter of inches from where the defendant was sitting, rather than in the trunk, does not overcome the fact that the crack was cloaked.

Id. (citing Cunningham v. State, 583 So.2d 960, 962 (Miss.1991)).

¶ 18. This Court’s decisions in Fultz and Ferrell further support our decision to reverse Johnson’s conviction and sentence based on the State’s failure to prove constructive possession. As in Ferrell, the cocaine found in the vehicle near Johnson would not have been apparent to a person riding in the car. It was found in a white plastic bag above the driver-seat sun visor in the upright position. Agent Harless admitted he was not sure whether Johnson had ever handled the bag. Also, it was never determined whether Johnson had been in the car at any time. Therefore, the State presented no incriminating circumstances to support the inference that Johnson constructively possessed the cocaine found in the nearby vehicle.

¶ 19. The dissent attempts to distinguish Fultz and Ferrell from the present case, based on the fact that the drugs were located above the car’s sun visor. However, as in Fultz and Ferrell, the cocaine would not have been reasonably apparent to someone driving the car, just as contraband located in a matchbox or duffle bag would not have been reasonably apparent. The incident occurred at approximately 6:25 p.m. The sun visor was in the upright position. Based on the evidence before us, we agree with the finding of our Court of Appeals that Johnson was not the owner of the car. Therefore, if Johnson did borrow the car from a relative, the State still has to prove beyond a reasonable doubt that Johnson knew the cocaine was above the sun visor and that he intended to possess the cocaine. The State presented no evidence to show Johnson intentionally and consciously possessed the contraband hidden above the car visor.

¶ 20. Additionally, the Court of Appeals mistakenly used Johnson’s relationship with Teddy to support its finding that the State had presented sufficient evidence for a finding of constructive possession. Johnson, 49 So.3d at 137. “Mere presence does not indicate participation in the purchase. Nor does it support an inference of dominion and control.” Berry v. State, 652 So.2d 745, 748 (Miss.1995). The Court of Appeals’ reliance on Johnson’s relationship with Teddy “is a prime example of a person being held guilty by association. Association will not suffice to satisfy the requirements” for constructive possession. Vickery v. State, 535 So.2d 1371,1379 (Miss.1988).

¶ 21. The State did not present any evidence that Johnson knew Teddy or knew that Teddy was a drug dealer. More importantly, Johnson was charged with constructive possession of cocaine, and Teddy was under investigation for the sale of marijuana. The fact that Johnson had a conversation with Teddy does not prove that they knew each other in advance or planned to engage in a drug transaction. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979).

¶ 22. The State was required to present incriminating circumstances in addition to Johnson’s proximity to the vehicle. The State has the burden to prove the defendant was aware of the cocaine and intentionally possessed it. Hudson, 30 So.3d at 1204. “[V]iewing the evidence in the light most favorable to the prosecution” as required by our standard of review, we do not agree that a rational trier of fact could find that the elements of constructive possession existed based on this evidence alone. Bush, 895 So.2d. at 843. Therefore, we reverse Johnson’s conviction and render a judgment of acquittal.

CONCLUSION

¶ 23. Johnson’s location near the vehicle, absent “additional incriminating circumstances,” is not sufficient to sustain his conviction of constructive possession. Fultz, 573 So.2d at 690. Because the State failed to present sufficient evidence to support a finding of constructive possession, we reverse the Court of Appeals’ and the trial court’s decisions and render judgment in favor of Johnson.

¶ 24. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON, P.J., KITCHENS AND PIERCE, JJ., CONCUR. CARLSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH AND LAMAR, JJ., KING, J„ NOT PARTICIPATING.

CARLSON,

Presiding Justice, dissenting:

¶ 25. The majority reverses and renders, holding that the State failed to present sufficient evidence to sustain Johnson’s conviction of constructive possession of cocaine. I find that sufficient evidence was presented to sustain the jury’s verdict, and therefore I respectfully dissent.

I. Facts

¶ 26. This case arose out of a drug bust conducted by the Mississippi Bureau of Narcotics (MBN) in Marion County at a gas station. The target was a man named “Teddy.” An individual cooperating with the MBN purchased marihuana from Teddy using marked bills; the drug was delivered by a man referred to as “Walter.” Three of the six MBN agents followed Walter, and the other team members returned to the gas station five to seven minutes after the buyer cooperating with the MBN had departed the scene. By the time the agents arrived at the gas station, they discovered Johnson standing near a vehicle, having a conversation with Teddy. Neither Johnson nor the vehicle Johnson was standing next to had been there minutes previously when the buyer was present.

¶ 27. The MBN team had only three members facing two potentially dangerous individuals. They had anticipated having six men facing one, but three agents were pursuing Walter, and the presence of Johnson was unexpected. Securing the scene became a priority. The agents handcuffed Johnson and Teddy and had them lie face-down on the ground.

¶ 28. The agents undertook a pat-down search of the two men but found no incriminating evidence or weapons. The agents next undertook a “wingspan” search of the vehicle — the area which potentially could have been reached by Johnson or Teddy if a fight broke out. The agents checked the driver-side sun visor. The visor was in the upright position at the time, but according to the trial testimony of MBN agent John Harless, the sun visor could have had a compartment large enough to hold a gun, knife, or razor. No weapon was discovered, but the sun visor compartment did contain a piece of a white plastic bag, described as similar to a grocery store bag. The item partially visible inside the semi-transparent bag was a white rock-like substance. Agent Harless testified that, even without opening the bag, “[biased upon experience, training, numerous times encountering the substance, I felt most certain that it was going to be crack cocaine.” The substance was later confirmed to be 0.7 grams of cocaine.

¶ 29. Johnson was indicted for possession of a controlled substance (cocaine) and also was charged as an habitual drug offender under Mississippi Code Section 41-29-147, based on his previous conviction for possession of a controlled substance. During trial, Johnson filed a motion to suppress the cocaine evidence, claiming that the search was illegal. The trial judge denied this motion, and Johnson was found guilty. Johnson filed a motion for JNOV or, in the alternative, a new trial. The motion was denied by the circuit court, and the Court of Appeals affirmed the judgment of conviction and sentence. Johnson v. State, 49 So.3d 130, 138 (Miss. Ct.App.2010). The majority reverses and renders, finding that the State failed to present sufficient evidence to support a finding of constructive possession. Because the majority finds this issue to be dispositive, it does not address Johnson’s allegation of illegal search and seizure.

II. Standard of Review

¶ 30. “[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.’” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). If any facts or inferences “ ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty,’ the proper remedy is ... to reverse and render.” Bush v. State, 895 So.2d 836, 843 (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)). However, this Court will reverse a circuit court’s denial of a motion for a new trial only when the verdict is “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Hearn v. State, 3 So.3d 722, 741 (Miss.2008).

¶ 31. Johnson did not have actual possession of the cocaine, and he thus was found guilty of constructive possession. To establish constructive possession, “there must be sufficient facts to warrant a finding that [the] defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.” Curry v. State, 249 So.2d 414, 416 (Miss.1971). This Court has held that “absent some competent evidence connecting him with the contraband[,]” the defendant is entitled to acquittal. Powell v. State, 355 So.2d 1378, 1379 (Miss.1978) (citations omitted).

¶ 32. The majority finds there was insufficient evidence for a rational trier of fact to find that the elements of constructive possession existed. I disagree. I would hold that the competent evidence was legally sufficient to the extent that the jury could draw reasonable inferences and arrive at a guilty verdict.

¶ 33. Juries are not required to view cases in a vacuum. Judge Prichard instructed the jury on its solemn responsibilities in this case. Among Judge Prichard’s instructions to the jury was the following:

As sole judges of the facts in this case, you determine what weight and credibility will be assigned the testimony and supporting evidence of each witness in this case. You are required to use your good common sense and sound, honest judgment in considering and weighing the testimony of each witness.

(Emphasis added.)

III. Johnson’s Connection to the Vehicle

¶ 34. Johnson and the majority correctly note that neither Johnson nor the car that he was found next to was at the scene when the informant was purchasing the marihuana from Teddy. Johnson and the vehicle both arrived in the five-to-seven-minute interval before the agents arrived, but there is no direct evidence that Johnson drove the car or rode in it as a passenger to the gas station.

¶ 35. However, there was evidence as to the vehicle’s ownership. Agent Harless testified that either Johnson’s father or another family member took custody of the vehicle after Johnson’s arrest. As to the owner, Harless stated “I believe going from memory, and I could be incorrect, that the owner was Johnson’s mother.” The majority describes these statements as merely speculative.

¶ 36. I disagree with this characterization. The statements both relied on a faulty memory, but that does not make them speculative. See, ie., Dietz v. Consol. Oil & Gas, Inc., 643 F.2d 1088, 1094 (5th Cir.1981) (“Yancey’s testimony may have been sketchy, it may have been based on poor memory, and it may have been wrong but being based on recollection rather than mere hypothesis and conjecture, it was not speculative.”) Agent Harless testified that the car was collected by, and thus presumably owned by, a member of Johnson’s family. The jury had no reason to doubt this testimony, and the defense offered no contradictory testimony. Coupled with Johnson’s presence next to the vehicle, the shortness of the interval during which the MBN agents were not observing the gas station, and the absence of any other purported driver of the vehicle, the evidence was sufficient for the jury to draw a reasonable inference that Johnson had driven the car to the gas station.

IV. Precedent

¶ 37. The majority cites two prior decisions of this Court in which it characterizes the State as presenting “far more evidence” than in the present case. In Fultz v. State, 573 So.2d 689 (Miss.1990), the defendant was convicted of constructive possession with intent to sell marihuana, where the car he was driving belonged to the defendant’s sister; marihuana was found in a set of plastic bags contained in a duffel bag in the trunk of the car; and the defendant admitted to having smoked marihuana prior to his arrest. This Court held that the State had failed to present sufficient evidence to establish constructive possession. Id. at 691. In Fultz, this Court specifically cited “poor police work” due to the failure of the police to dust the trunk or the bags for fingerprints. Id. at 691.

¶ 38. I would hold that this case is distinguishable from Fultz. The sun visor of a car is unlike the trunk. It is much more accessible to the driver and much less likely to bear long-term cargo.

¶ 39. As far as fingerprinting is concerned, the police in Fultz could have fingerprinted the material of the trunk or the duffel bag; the duffel bag itself contained numerous plastic bags. A plastic bag by nature is far harder to fingerprint than carpet or canvas, and any such evidence here was contained on one piece of one plastic bag. Unlike the situation in Fultz, there is no indication here of “poor police work,” and I consider this case to be distinguishable.

¶ 40. In Ferrell v. State, 649 So.2d 831, 835 (Miss.1995), this Court held that the State had failed to prove constructive possession of drugs found in a matchbox next to the driver seat, where the driver had possessed the car for fifteen hours and there were no additional incriminating circumstances — including no drug paraphernalia found on the car, no fingerprints found on the matchbox, and the defendant was not on drugs when arrested. This Court stated that “the contraband was not positioned in such a way that its presence would be reasonably apparent to a person riding in the car. The mere fact that the matchbox was only a matter of inches from where the defendant was sitting, rather than in the trunk, does not overcome the fact that the crack was cloaked.” Id. (citing Cunningham v. State, 583 So.2d 960, 962 (Miss.1991)).

¶ 41. The present case is unlike Ferrell. In that case, the drug was concealed in a matchbox, positioned so that it would not be reasonably apparent to the driver of the car. Ferrell, 649 So.2d 831, 835.

¶ 42. The majority also argues that the Court of Appeals mistakenly used Johnson’s relationship with Teddy to support its finding that the State had presented sufficient evidence for constructive possession, and notes that “[mjere presence does not indicate participation in the purchase. Nor does it support an inference of dominion and control.” Berry v. State, 652 So.2d 745, 748 (Miss.1995). The majority characterizes this as a “prime example” of holding the defendant guilty by association, and notes that “[ajssociation will not suffice to satisfy the requirements” for constructive possession. Vickery v. State, 535 So.2d 1871,1379 (Miss.1988).

¶ 43. In making this determination about guilt by association in Vicket"y, this Court found that “[t]he only external relationship as required by Curry v. State between Vickery and the marijuana was the relationship between Vickery and Gary Hall.” Vickery, 535 So.2d at 1379 (citing Curry v. State, 249 So.2d 414 (Miss.1971)). Here, Johnson has not been accused or convicted of any participation in Teddy’s crimes. Yet it remains true that Johnson was alone with Teddy, a known drug dealer, immediately after Teddy had committed a drug-related crime and at the exact location of the crime. It was reasonable for the jury to take note of these facts in arriving at its determination involving Johnson’s unrelated crime. The jury also had available much stronger and more indicative evidence of Johnson’s guilt in the form of the vehicle, owned by a family member of Johnson’s, which contained contraband cocaine in a conspicuous compartment.

V. Conclusion

¶ 44. It is within the province of the jury “to resolve matters regarding the weight and credibility of the evidence.” Stevenson v. State, 733 So.2d 177, 186 (Miss.1998) (quoting Hiter v. State, 660 So.2d 961, 964 (Miss.1995)). I would hold that there is sufficient evidence for the jury to have drawn reasonable inferences and to have determined that Johnson was in constructive possession of the cocaine.

¶ 45. Since the majority finds the constructive possession issue dispositive, it does not address the issue of the search and seizure of the cocaine evidence. I would adopt the analysis of the Court of Appeals, which finds that the search was not unreasonable. Johnson, 49 So.3d at 136-37.

¶ 46. Accordingly, I would affirm the judgment of the circuit court and of the Court of Appeals. Because the majority holds otherwise, I respectfully dissent.

RANDOLPH AND LAMAR, JJ„ JOIN THIS OPINION.

      . As part of his sentence, Johnson also was required to participate in alcohol/drug testing and an intensive program within the Mississippi Department of Corrections.

      . An MBN agent also was assigned to follow the confidential informant.

      . Johnson was convicted of possession of a controlled substance in the Circuit Court of Marion County and was sentenced to serve eight years in the Mississippi Department of Corrections.


source: Caselaw Access Project

author: KITCHENS, Justice,

license: Public Domain

text:
    Michael ROBICHAUX, as the Personal Representative of Mary Robichaux, Deceased, and Michael Robichaux, Individually v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY and Jay Fletcher Insurance.
    No. 2010-CA-00109-SCT.
    Supreme Court of Mississippi.
    Dec. 15, 2011.
    Rehearing Denied March 22, 2012.

      Brandon Currie Jones, William Harvey Barton, David Wayne Baria, Marcie Fyke Baria, St. Louis, attorneys for appellants.
    H. Mitchell Cowan, Jackson, Janet D. McMurtray, Daniel F. Attridge, Christopher Landau, Kenneth S. Clark, attorneys for appellees.
    Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court:

¶ 1. Following the destruction of their home in Hurricane Katrina, Michael and Mary Robichaux filed suit on October 26, 2006, in the Circuit Court of Jackson County, Mississippi, against their insurers, Nationwide Mutual Fire Insurance Company (“Nationwide”) and their insurance agent, Jay Fletcher Insurance (“Fletcher Insurance”). The plaintiffs sought declaratory and injunctive relief, including indemnity under the insurance contract, compensatory and punitive damages, specific performance of the insurance contract, attorneys’ fees, and court costs and expenses for what they alleged were uncompensated, covered losses under their homeowners’ policy. Also included in the complaint were claims of fraud and bad faith by the insurer and its agent.

112. The trial court ultimately granted summary judgment in favor of Nationwide and Fletcher Insurance based on the Robi-chauxes’ failure to establish a genuine issue of material fact that the home was damaged by wind, which was covered by the subject policy, rather than its having been destroyed by flood, which the trial court found was excluded under the policy. Alternatively, the trial court found that the Robichauxes had failed to show they had suffered uncompensated losses due to their having received compensation under their flood policy. Aggrieved, the Robichauxes timely filed this appeal.

¶ 3. This Court finds that the trial court erred in granting summary judgment on the issue of whether the Robichauxes suffered uncompensated, wind damage to structures other than their dwelling, and to personal property. Accordingly, we remand for further proceedings consistent with this opinion.

Facts and Procedural History

¶ 4. Mary and Michael Robichaux owned a home at 1907 Washington Avenue, Pascagoula, Mississippi, located a few hundred feet from a canal and one block north of the Gulf of Mexico. The home was destroyed during Hurricane Katrina on or about August 29, 2005. At the time of the loss, the residential property was insured by Nationwide under a policy with the following coverage limits: $131,000 for dwelling, $13,100 for other structures, $97,405 for personal property, and $26,200 for loss of use. In addition to the homeowners’ policy, the Robichauxes had purchased from Nationwide a hurricane rider entitled Hurricane Coverage and Deductible Provision Endorsement (hereinafter “hurricane endorsement”), which covered damage occurring as a result of a “windstorm during a hurricane.” This coverage encompassed damage to the interior and to personal property inside the property “caused by rain, snow, 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.” The hurricane endorsement covered damage to the dwelling and other structures, as well as personal property.

¶ 5. The Robichauxes reported the loss to Nationwide and made a claim under the policy. After an initial investigation, which included a site visit by a claims adjuster, Nationwide sent a letter to the Robichauxes informing them that a question had arisen as to coverage, namely whether flood or surge damage had caused destruction of their real and/or personal property. Nationwide retained an engineer with HAAG Engineering to inspect the property, review photographs, and prepare a damage assessment report based on the investigation. This report, which included photographs of the remaining concrete slab foundation and neighboring properties, FEMA tidal surge data, and evidence showing the proximity of the property to the Gulf of Mexico, concluded that the Robichaux home and garage were destroyed by the hurricane’s storm surge. On March 24, 2006, in reliance on the claims adjuster’s report and the engineering investigation and reports, as well as the flood exclusion and anti-concurrent language in the subject policy, Nationwide denied the Robichauxes’ claim based on a finding that the loss was caused by water or water-borne material as defined by the policy.

¶ 6. Prior to this determination by Nationwide regarding the homeowners’ policy, the Robichauxes had filed a claim under their flood insurance policy, a policy available through the National Flood Insurance Program. The flood policy paid $136,500 for flood damage to the dwelling and $70,400 for flood damage to the contents of the home, amounts which constituted the policy limits. Subsequently, as part of a newly instituted company policy regarding Katrina slab cases, Nationwide conducted a reassessment of all information pertaining to the Robichauxes’ claims and tendered checks in the amount of $37,266.66 ($30,790.63 in potential dwelling damage and $6,476.03 in potential damage to other structures), which were returned uncashed by the couple eight months later.

¶ 7. On October 26, 2006, the Robichaux-es brought suit' in the Circuit Court of Jackson County against Nationwide and its agent, Fletcher Insurance, in which the plaintiffs sought declaratory and injunctive relief, including damages under the insurance contract, compensatory and punitive damages, specific performance of the insurance contract, attorneys’ fees, and court costs and expenses for what they alleged were uncompensated, covered losses under their homeowners’ policy, as well as fraud on the part of their insurer and its agent. On November 27, 2006, Nationwide filed a Notice of Removal from the circuit court to the United States District Court for the Southern District of Mississippi. The federal district court remanded the case to the Circuit Court of Jackson County on May 21, 2007, after which the Robichauxes filed a First Amended Complaint on September 29, 2008.

¶ 8. Nationwide and Fletcher Insurance filed their Defenses and Answer on October 3, 2008. The Robichauxes designated William Mott, an engineering expert; Rocco Calaci, a meteorology expert; and Donald Dinsmore, an insurance expert. Nationwide and Fletcher Insurance designated three engineering experts with HAAG Engineering Company, an additional engineering expert in the field of structural engineering, building inspection and mechanical engineering, an insurance expert, and two experts in meteorology and storm tide analysis.

¶ 9. The Robichauxes filed a Motion for Partial Summary Judgment, and Nationwide and Fletcher Insurance filed a Motion for Summary Judgment. The motions were set for hearing before Special Circuit Court Judge Billy G. Bridges on September 2, 2009. At the hearing, the trial court initially granted the Robichauxes’ motion, but upon reconsideration withdrew judgment in favor of the plaintiffs and ruled in favor of Nationwide and Fletcher Insurance. The trial court issued its Findings of Fact, Conclusions of Law and Judgment denying the Robichauxes’ Motion for Partial Summary Judgment and granting summary judgment in favor of Nationwide and Fletcher Insurance on October 5, 2009. Aggrieved by the judgment in favor of the defendants, the Robichauxes filed this appeal.

DISCUSSION

¶ 10. The interpretation of insurance policy language is a question of law. Lewis v. Allstate Ins. Co., 730 So.2d 65, 68 (Miss.1998). Questions of law are reviewed de novo. Lowe v. Lowndes County Bldg. Inspection Dep’t, 760 So.2d 711, 712 (Miss.2000).

¶ 11. Summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Miss. R. Civ. P. 56(c). “The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If in this view the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise the motion should be denied.” Brown v. Credit Center, Inc. 444 So.2d 358, 362 (Miss.1983). This Court conducts a de novo review to determine whether the trial court properly granted a motion for summary judgment. Conrod v. Holder, 825 So.2d 16, 18 (Miss.2002) (citation omitted).

¶ 12. For our review, the Robichauxes raise the following issues:

1. Whether the “Hurricane Coverage and Deductible Provision” and the “Anti-Concurrent Causation Provision” or “Weather Conditions” Exclusion create an ambiguity that should be resolved in favor of the insureds.
2. Whether in considering an “All Risk” homeowners’ policy containing an ACC clause, the insurance company bears the burden of establishing causation for that part of the loss that is excluded.
3. Whether the trial court erred in its interpretation of the ACC clause.
4. Whether the insurance company’s adjustment of the claims of its policyholders is relevant to that company’s treatment of policyholders with like policies in the same geographical area.
5. Whether the trial court erred in dismissing Plaintiffs’ claims against Jay Fletcher Insurance.

We decline to address the appellants’ issue four, given that it is not dispositive of the case and because, as the ultimate gatekeeper of admissibility of relevant evidence under Mississippi Rule of Evidence 401, the trial judge should determine its relevance. See Dep’t of Human Sens, on Behalf of Adams v. Rains, 626 So.2d 136, 140 (Miss.1993) (“The admission of relevant evidence is left largely to the discretion of the trial judge.”) (citation omitted).

¶ 13. Nationwide and Fletcher Insurance raise the issue of whether the Robi-chauxes are precluded as a matter of law from double recovery, given that they were compensated for losses caused by flood damage to their dwelling and contents by their federal flood insurance policy.

WHETHER THE HURRICANE ENDORSEMENT AND THE ANTI-CONCURRENT CAUSATION PROVISION IN THE SUBJECT POLICY WHEN READ TOGETHER CREATE AMBIGUITY.

¶ 14. The Robichauxes argue that the policy’s anti-concurrent clause (ACC), when read in conjunction with the hurricane endorsement provision, creates an ambiguity that should be resolved in their favor. Nationwide and Fletcher Insurance contend that the trial court did not base its decision on the language contained in the ACC clause, but rather on the Robichaux-es’ failure to create a genuine issue of material fact that a covered cause or event, namely wind, caused damages that remained uncompensated, as they have received the full value of their property under their flood insurance policy.

¶ 15. Ambiguity exists in an insurance contract when the policy can be interpreted as having two or more reasonable meanings. Mississippi Farm Bureau Cas. Ins. Co. v. Britt, 826 So.2d 1261, 1265 (Miss.2002). When the words of an insurance policy are plain and unambiguous, the Court will afford them their plain, ordinary meaning and will apply them as written. Lewis v. Allstate Ins. Co., 730 So.2d 65, 68 (Miss.1998). Where policy language is ambiguous and unclear, it must be resolved in favor of the insured. Id. “Further, provisions that limit or exclude coverage are to be construed liberally in favor of the insured and most strongly against the insurer.” Id. (citing Nationwide Mut. Ins. Co. v. Garriga, 636 So.2d 658, 662 (Miss.1994)).

¶ 16. The subject policy contains the following ACC or weather conditions exclusion, entitled Property Exclusions:

1. 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.
b) Water or damage caused by waterborne material. 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 damage means:
1) flood, surface water, waves, tidal waves, overflow of a body of water, spray from these, whether or not driven by wind.
2. We do not cover loss to any property resulting directly or indirectly from the following if another excluded peril contributes to the loss:
c) Weather conditions, if contributing in any way with an exclusion listed in paragraph 1 of this Section.

The hurricane endorsement reads, in pertinent part, as follows:

HURRICANE COVERAGE
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, 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.

Under this provision, windstorm is defined as “wind, wind gust, hail, rain, tornadoes or cyclones caused by or resulting from a hurricane.”

¶ 17. The trial court found that “Plaintiffs’ policy only covers damage caused exclusively by wind.” Based on a reading of the plain language of the homeowners’ policy, it is clear that flooding is excluded from the policy. Even in the hurricane endorsement, coverage does not extend to “loss caused by flooding, including but not limited to flooding resulting from high tides or storm surges.” Thus, there is no ambiguity in the policy that could be interpreted in favor of the Robichauxes. Accordingly, the Robichauxes’ first point of error is without merit.

WHETHER THE TRIAL COURT ERRED IN INTERPRETING THE ANTI-CONCURRENT CAUSATION CLAUSE.

¶ 18. The trial court found that there was “no genuine dispute that the damage to Plaintiffs’ home was caused by-excluded flooding.” The trial court based this conclusion on the Robiehauxes’ designated expert’s opinion that the residence was destroyed by flooding, an opinion shared by the defendants’ expert engineer who opined that the residence and other structures were destroyed by storm surge. However, the trial court erred in concluding that no genuine issue of material fact existed as to whether wind damaged the property prior to its destruction by storm surge. Whether Nationwide had a duty of indemnity under the policy for wind damage, if any, occurring prior to the storm surge presents a triable issue of fact. Summary judgment on this issue runs afoul of this Court’s holding in Corban v. United Services Automobile Association, 20 So.3d 601 (Miss.2009).

¶ 19. In Corban, this Court interpreted an ACC clause with language identical to the subject policy. Id. at 612. In that case, this Court stated:

The ACC clause applies only if and when covered and excluded perils contemporaneously converge, operating in conjunction, to cause damage resulting in loss to the insured property. If the insured property is separately damaged by a covered or excluded peril, the ACC clause is inapplicable. If damage is caused by a covered peril, the insured is entitled to indemnification for the covered loss, as the insured’s right to recover for the loss has vested.

Id. at 616. The evidence in the present case shows that not all of the damage to the Robichaux residence was caused by the simultaneous convergence of wind and water; accordingly, the ACC clause was inapplicable. In fact, Nationwide’s own engineering expert noted wind damage to the roofs of two neighboring properties and opined that wind damage to the Robi-chaux home “would have been limited to cladding items such as roof shingles.” Moreover, the Robiehauxes’ engineering expert opined that, prior to the storm surge, the property sustained wind damage to the roof before the structure was pushed down by the storm surge. Viewing the evidence in the light most favorable to the Robiehauxes, there is evidence that wind damage occurred prior to the storm surge’s destruction of the property.

¶ 20. Alternatively, the trial court held that the Robiehauxes had failed to establish that their losses were uncompensated, given that they had accepted proceeds under their flood policy. Thus, while a genuine issue of material fact may exist as to whether wind had damaged the dwelling, other structures, and personal property prior to the flood damage, this Court must determine whether the trial court was correct in finding that the Robiehauxes failed to prove that their losses were uncompensated.

WHETHER THE ROBICHAUXES WERE COMPENSATED FOR THE FULL VALUE OF THEIR PROPERTY AND THUS PRECLUDED FROM DOUBLE RECOVERY UNDER THE SUBJECT POLICY.

¶ 21. Finally, Nationwide and Fletcher Insurance argue that the trial court properly concluded that the Robi-chauxes’ acceptance of flood insurance proceeds under the flood insurance policy precluded them from further recovery under the homeowners’ policy. The flood policy paid $136,500 for flood damage to the building and $70,400 for flood damage to the contents of the home (amounts which constituted the policy limits). Michael Ro-bichaux testified that $136, 500 in flood insurance proceeds for the property was far less than the value of his home, which he estimated to be $185,000. This estimate was based on the sale of a neighbor’s property; however, the neighbor’s testimony was that his property had sold for $165,000. In ascertaining a value for the dwelling, the trial court assessed the value of the Robichaux dwelling at $165,000 minus the value of the land, $53,860, which the trial court gleaned from tax records, for a total of $111,140. Thus, the court found that, even if the Robichauxes could have proven that wind had damaged their dwelling, they were precluded from collecting under Coverage A of the homeowners’ policy because they had received the full value of their dwelling from proceeds paid under their flood policy.

¶ 22. In their reply brief, the Ro-bichauxes continue to argue that, just as Michael Robichaux testified in his deposition, the property was worth $185,000. Generally, “[ijndividuals may testify as to the value of their own property.” Regency Nissan, Inc. v. Jenkins, 678 So.2d 95, 101 (Miss.1995). However, even if this Court accepts that value, $185,000 minus the land value of $53,860 is $131,140. As previously stated, the Robichauxes received $136,500 for the loss of their dwelling. Thus, even when viewing the evidence in the light most favorable to the Robichauxes, they still are precluded from again recovering for the loss of the dwelling, as they already have been compensated for the full value of their home. This Court has held “that ‘[t]here can be but one satisfaction of the amount due the plaintiff for his damages’ ... Thus, double recovery for the same harm is not permissible.” City of Jackson v. Estate of Stewart ex rel. Womack, 908 So.2d 703, 711 (Miss.2005) (quoting Medlin v. Hazlehurst Emergency Physicians, 889 So.2d 496, 500 (Miss.2004)).

¶ 23. Because the trial court found the replacement cost opinion was based on estimated square footage costs provided the expert by the Robichauxes’ counsel, the replacement cost estimate by Don Dinsmore in the amount of $240,695 was excluded by the trial court on the basis that it was irrelevant, inadmissible, and failed to meet the requisite standards under Daubert v. Merrell Dow Pharmaceuticals, Inc., 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995). The Robichauxes argue in their reply brief that the trial court erred in excluding Dinsmore’s opinion. Nationwide and Fletcher Insurance argue that, since the Robichauxes failed to raise this issue in their opening brief, they are proeedurally barred from raising this argument in their reply brief. See Paw Paw Island Land Co., Inc. v. Issaquena and Warren Counties Land Co., LLC, 51 So.3d 916, 928 (Miss.2010) (citing Overstreet v. Allstate Ins. Co., 474 So.2d 572, 577 (Miss. 1985) (“As it- is improper to raise new arguments in a reply brief, the Court is under no obligation or duty to consider such argument.”)). Moreover, the Robi-chauxes fail to cite any authority in support of their premise, and they do not address the trial court’s finding that the expert’s estimate was based on information obtained from the Robichauxes’ counsel. Thus, this Court should not address this contention of error. See Smith v. Dorsey, 599 So.2d 529, 532 (Miss.1992) (“The failure to cite any authority can be treated as a procedural bar, and this Court is under no obligation to consider the assignments.”).

¶ 24. As to Coverage B under the homeowners’ policy, “Other Structures,” the trial court found that, since the Robi-chauxes had been compensated above and beyond the value of their dwelling by $23,360, the surplusage effectively served to compensate them for their other structures, which the trial court found to be valued at $5,000. Along with a shed, there was evidence of a detached two-car garage in the back yard, which also was reduced to a slab. However, the record does not show that the payment of $136,500 for flood damage was intended to compensate for losses to other structures. In fact, the estimate prepared by the flood insurance adjuster was described as an “estimate to replace the dwelling,” with no mention of other structures. Due to the policy limits’ having been exceeded, the estimate did not include many of the replacement costs for “the exterior, interior, and ceilings along with the roof structure and detached garage.” The adjuster’s report stated: “Since this has not been included in our estimate should additional evidence come forth that indicates there may have been some wind damage it allows for payment in these areas.” Accordingly, the trial court erred in barring recovery for Coverage B based on compensation received for the Robichaux dwelling. The question of whether wind damaged the other structures on the property prior to the flood damage, given that there is evidence that the Robichauxes remain uncompensated under Coverage B, presents a triable issue of fact. As such, this Court remands this issue to the trial court for a jury determination of whether wind damaged the other structures prior to their destruction by storm surge.

¶ 25. As to Coverage C, personal property, the Robichauxes received $70,400 for the contents of their home under the flood policy. The total amount of damages to personal property, however, was $186,144. As previously discussed, a genuine issue of material fact exists as to whether wind caused damage to the Robichauxes’ property prior to its having been damaged by the storm surge. Since the Robichauxes have not been compensated for the full value of their personal property, we remand this ease to the trial court for a jury trial on the issue of whether wind damaged the Robichauxes’ personal property prior to the flood damage.

WHETHER THE INSURED HAD THE BURDEN OF PROOF IN ESTABLISHING CAUSATION FOR THE PORTION OF THE LOSS THAT IS EXCLUDED UNDER THE SUBJECT POLICY.

¶ 26. As to Coverage A, Dwelling, and Coverage B, Other Structures, the policy states: “We cover accidental direct physical loss to property described in Coverages A and B except for losses excluded under Section 1 — Property Exclusions.” Thus, in drafting the policy, the parties created all-risk coverage for the dwelling and other structures. Conversely, Coverage C, Personal Property, provides coverage for nine enumerated causes of loss, including windstorm or hail, which makes this coverage a named perils, or specific perils, policy.

¶ 27. Nationwide concedes that, once the Robichauxes showed an accidental, direct, physical loss to the dwelling and other structures, Nationwide had the burden of proving that the damage was caused by an excluded peril, namely flooding. However, Nationwide contends that it met its burden of showing that the damage was caused entirely by an exclusion under the policy. The Robichauxes argue that the trial court, contrary to this Court’s holding in Corban, 20 So.3d at 619, erroneously assigned them the burden of proving that the cause of damages to their dwelling and other structures was wind. As recognized by this Court in Corban, 20 So.3d at 618:

Under [All-Risk] coverage, the insured has the initial burden to prove that the loss occurred. Thereafter, the burden shifts to the insurer, as [i]n an all-risk ... policy where an exclusion is specifically pleaded as an affirmative defense the burden of proving such affirmative defense is upon the insurer....

(internal citations omitted).

¶ 28. Given that this case is to be remanded on the issue of whether wind was a proximate cause of damage prior to the destruction of the other structures and personal property by storm surge, we address the Robichauxes’ argument only to reiterate that, upon remand, Nationwide has the burden of proving that the other structures under Coverage B were damaged by an excluded peril. The converse is true with regard to the Robichauxes’ burden of proving that personal property under Coverage C suffered accidental, direct, physical loss as a result of one of the enumerated perils, namely windstorm.

WHETHER PLAINTIFFS’ CLAIMS AGAINST FLETCHER INSURANCE WERE IMPROPERLY DISMISSED.

¶ 29. The Robichauxes assert that “Fletcher Insurance represented to Plaintiffs that they had full and comprehensive insurance coverage under the subject policy and hurricane endorsement for any and all damage that is typically caused by a hurricane, including damage proximately and effectively caused by hurricane wind and damage caused from storm surge proximately caused by hurricanes.” Moreover, the Robichauxes contend that they detrimentally relied on the misrepresentations of Fletcher Insurance by not increasing the amount of coverage under their flood policy based on Fletcher Insurance’s representation that such an increase was not necessary with a hurricane endorsement in place under the subject policy. The trial court found that the Robichauxes failed to show they detrimentally relied on the representations of Fletcher Insurance because the couple maintained that at all times they had purchased as much flood coverage as they could afford.

¶ 30. As previously discussed, the policy at issue clearly excludes storm surge under the hurricane endorsement provision. Thus, the claim against Fletcher Insurance fails as a matter of law, as “knowledge of an insurance policy is imputed to an insured regardless of whether the insured read the policy.” Mladineo v. Schmidt, 52 So.3d 1154, 1161 (Miss.2010) (quoting Oaks v. Sellers, 953 So.2d 1077, 1083-84 (Miss.2007)). This Court recognized in Mladineo that agents who offer advice to insureds regarding the sufficiency of their coverage have a duty to exercise reasonable care. Mladineo, 52 So.3d at 1162. The plaintiffs in Mladineo were told by their agent that they were not in a flood plain and were advised not to procure flood insurance. Id. That was incorrect, as a portion of the plaintiffs’ property was located in a flood plain and was damaged by storm surge. Id. at 1157. This Court recognized that the plaintiffs could not have known their property was located in a flood plain by reading their policy; thus, even though they were imputed with the knowledge of the policy’s contents, an issue of material fact existed as to whether they detrimentally relied on their agent’s misrepresentation regarding their lack of need of flood insurance. Id. at 1163-64. Ultimately, this Court found that summary judgment was improper on the plaintiffs’ negligent misrepresentation claim against their insurance agent. Id. In doing so, this Court emphasized, “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.” Id. at 1162-63 (citing Ballard v. Commercial Bank of DeKalb, 991 So.2d 1201, 1207 (Miss.2008) (internal quotations omitted)).

¶ 31. The present case is distinguishable from Mladineo in that the Robichaux-es could have ascertained that their hurricane policy and homeowners’ policy did not cover flood damage, including damage caused by storm surge, by simply reading their policy. Plaintiffs concede they have held a homeowners’ policy with Nationwide for thirteen years. As previously discussed, this Court found the language of the policy to be unambiguous as to the exclusion of flood damage. “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.” Id. (citing Atlas Roofing Mfg. Co., Inc. v. Robinson & Julienne, Inc., 279 So.2d 625, 629 (Miss.1973)). The Robiehauxes are imputed with the knowledge that their homeowners’ policy and hurricane endorsement excluded flooding and storm surge. We affirm the trial court’s grant of summary judgment in favor of Fletcher Insurance.

CONCLUSION

¶ 32. As genuine issues of material fact exist as to whether structures under Coverage B of the subject policy and personal property under Coverage C of the subject policy were damaged by wind prior to the destructive force of the storm surge, summary judgment was improperly granted in part. This Court hereby remands these issues to the trial court for a jury trial.

¶ 33. However, summary judgment was properly granted to Fletcher Insurance, as the plaintiffs’ claims against their agent fail as a matter of law, based on their imputed knowledge of the subject policy. Accordingly, we affirm in part. Upon remand, Nationwide is the only remaining defendant.

¶ 34. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ, RANDOLPH, LAMAR, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . Plaintiff Mary Robichaux died on May 8, 2010. A motion was filed with this Court on October 28, 2011, to substitute for Mary Robi-chaux her personal representative, Michael Robichaux. This Court granted that motion on November 14, 2011. Robichaux v. Nationwide Mut. Fire Ins. Co., 2010-CA-00109-SCT (Order, November 14, 2011). Because both appellants participated in the trial court proceedings, for the purposes of this opinion, they are referred to collectively herein as the Robichauxes.

      . To date, Nationwide has paid the Robi-chauxes $2,500 to cover living expenses incurred during its investigation of the claim and $500 for food loss.

      . The trial court found Donald Dinsmore's expert opinion on replacement costs failed to meet the standard for expert opinions under Dazibert v. Merrell Dow Phannaceuticals, Inc., 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995), and was irrelevant and inadmissible. The trial court refused to consider Dinsmore's opinion that the replacement costs of the property totaled $240,695.

      . $5,000 was the amount paid by the couple in 1994 to construct a shed.

      . “ ‘Named perils’ or 'specific perils’ policies provide coverage only for the specific risks enumerated in the policy and exclude all other risks. ‘All-Risk’ policies provide coverage for all risks unless the specific risk is excluded.” 7 Stephen Plitt, Daniel Maldonado, & Joshua D. Rogers, Couch on Insurance § 101:7 (3d ed.2006).


author: RANDOLPH, Justice, DICKINSON, Presiding Justice, WALLER,

text:
    Paul R. COOK v. The HOME DEPOT and American Home Assurance Company
    No. 2009-CT-01551-SCT.
    Supreme Court of Mississippi.
    Feb. 9, 2012.

      John Hubert Anderson, Hattiesburg, attorney for appellant.
    P. Sharkey Burke, Jr., attorney for ap-pellees.
   ON WRIT OF CERTIORARI

RANDOLPH, Justice,

for the Court:

¶ 1. In July 2006, Paul R. Cook’s workers’ compensation claim was dismissed for failure to file a properly completed pre-hearing statement. In December 2006, Cook’s “Motion for an Order Re-Instating Claim” was denied for failure to “attach a properly completed prehearing statement....” In August 2008, Cook’s “Amended Motion to Reinstate” was dismissed as barred under the one-year statute of limitations provided in Mississippi Code Section 71-3-53. See Miss.Code Ann. § 71-3-53 (Rev. 2011) (“the commission may, ... at any time prior to one year after the rejection of a claim, review a compensation case, issue a new compensation order ..., or award compensation.”) (emphasis added). The full Commission affirmed the dismissal, as did the Circuit Court of Rankin County and a unanimous Mississippi Court of Appeals. See Cook v. The Home Depot, 81 So.3d 1126 (Miss.Ct.App.2011). This Court granted Cook’s petition for certiorari. See Cook v. The Home Depot, 69 So.3d 767 (Miss.2011). We now affirm.

FACTS AND PROCEDURAL HISTORY

¶2. The Court of Appeals summarized the underlying facts and procedural history, as follows:

[o]n August 6, 2004, Cook filed his petition to controvert with the Commission alleging a back injury he had sustained [on May 13, 2003] while moving cast-iron bathtubs at The Home Depot, his place of employment. The Home Depot filed a B-31 Final Notice form with the Commission on August 6, 2004, providing Cook disability payments in the amount of $7,153.72.
Cook filed a motion to review the cessation of his benefits and payment of his medical bills on April 29, 2005, alleging further medical treatment was necessary. The Home Depot disputed Cook’s need for further treatment in its response to Cook’s motion, and on June 30, 2005, the [Administrative Judge (“AJ”) ] ordered an independent medical examination with The Home Depot to pay the costs associated with the examination.
On July 27, 2006, the AJ dismissed Cook’s claim for failure to file a completed prehearing statement pursuant to Commission Procedural Rule 5.[] Cook filed a petition to reinstate his claim and a prehearing statement [on October 30, 2006], which the AJ denied on December 6, 2006, due to an improperly completed prehearing statement^] Cook filed an amended prehearing statement on December 13, 2006, and also on January 8, 2007. []
In June 2008, Cook’s attorney sent a letter to the Commission alleging that he had personally delivered a second amended petition to reinstate, which was attached to a prehearing statement, to them on July 21, 2007. Cook’s file with the Commission did not originally contain either of these documents. His file was updated with these documents dated July 21, 2007, but they only bore the official stamp date of June 17, 2008, the day the Commission received them.
[On August 29, 2008,] [t]he AJ dismissed Cook’s claim because the one-year statute of limitations under Mississippi Code Section 71-3-53 (Rev. 2000) ran from December 26, 2006,[] to December 26, 2007, and was not tolled by any action or filing.[] Cook filed an appeal with the full Commission. The full Commission affirmed the AJ’s decision to dismiss Cook’s claim. The Rankin County Circuit Court affirmed the dismissal of Cook’s claim as barred by the statute of limitations.

Cook, 81 So.3d at 1127-28. The Court of Appeals affirmed the dismissal of Cook’s claim, finding that Cook “failed to timely file a petition to reinstate with the Commission and that the actions taken during the statute-of-limitations period were insufficient to toll the one-year period-” Id. at 1130.

STANDARD OF REVIEW

¶ 3. This Court has stated that the:

review of a decision of the Workers’ Compensation Commission is limited to determining whether the decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated one’s constitutional or statutory rights.[] Short v. Wilson Meat House, LLC, 36 So.3d 1247, 1250 (Miss.2010) (quoting Public Employees’ Ret. Sys. v. Dearman, 846 So.2d 1014, 1018 (Miss.2003))_ Because the Commission is the ultimate fact-finder and judge of the credibility of the witnesses, this Court may not reweigh the evidence before the Commission. [Short, 36 So.3d at 1251] (quoting Barber Seafood, Inc. v. Smith, 911 So.2d 454, 461 (Miss.2005)). This Court affords de novo review to the Commission’s application of the law. Natchez Equip. Co., Inc. v. Gibbs, 623 So.2d 270, 273 (Miss.1993). “The legal effect of the evidence, and the ultimate conclusions drawn by [the Commission] from the facts ... are questions of law, especially where the facts are undisputed or the overwhelming evidence reflects them.” Cent. Elec. Power Ass’n v. Hicks, 236 Miss. 378, 388-89, 110 So.2d 351, 356 (1959). “[W]hen the agency has misapprehended a controlling legal principle, no deference is due, and our review is de novo.” ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.1999).

Gregg v. Natchez Trace Elec. Power Ass’n, 64 So.3d 473, 475-76 (Miss.2011).

ANALYSIS

¶4. Mississippi Code Section 71-3-47 provides, in pertinent part, that “[e]xcept as otherwise provided by this chapter, the details of practice and procedure in the settlement and adjudication of claims shall be determined by rules of the commission, the text of which shall be published and be readily available to interested parties.” Miss.Code Ann. § 71-3-47 (Rev. 2011) (emphasis added). See also Miss. Workers’ Comp. Comm’n Gen. R. 2, http:// www.mwcc. state.ms. us/LAW-CLMSH rules, asp (last viewed Feb. 8, 2012) (“These Rules shall be in effect and shall apply to all claims or matters pending before the Commission as of the effective date of the Rules [April 1, 2001], and to all matters or claims thereafter filed.”). Mississippi Workers’ Compensation Commission Procedural Rule 5 provides that pre-hearing statements “shall follow the form prescribed by the Commission” and that the “[f]ailure of the claimant to timely file the prehearing statement may result in the dismissal of the case or other sanctions.” Miss. Workers’ Comp. Comm’n Proc. R. 5, http://www. mwcc. state, ms. us/LAW-CLMS/-rules.asp (last viewed Feb. 8, 2012) (emphasis added). On January 31, 2006, the Commission issued a memo which stated that:

[i]n December 2005, the Commission approved changes to the prehearing statement form. The revised prehearing statement form became effective January 2, 2006, and the revised form, as well as general instructions and a sample completed form, are available in the “Forms” section of the Commission’s official website....
Beginning February 21, 2006, the Commission will require the exclusive use of the revised prehearing statement form. On and after that date, any prehearing statement filed using the old form will be considered incomplete under Procedural Rule 5. Any party who files a prehearing statement using the old form will be required to resubmit a complete prehearing statement using the revised form.

(Emphasis added.) The Commission’s “General Instructions Regarding Prehear-ing Statement” provided that “PRE-HEARING STATEMENTS, INCLUDING ATTACHMENTS, THAT DO NOT COMPLY WITH THE ABOVE REQUIREMENTS WILL BE CONSIDERED INCOMPLETE AND RETURNED TO THE SENDER.” (Emphasis in original.)

¶ 5. Based upon Cook’s failure to comply with Mississippi Workers’ Compensation Commission Procedural Rule 5, the AJ entered an “Order Dismissing Claim for Claimant’s Failure to File a Completed Prehearing Statement.” (Emphasis added.) That July 27, 2006, order added that Cook “must attach” a “properly completed prehearing statement” to any subsequently filed “Motion to Reinstate the Claim.” Yet Cook failed to correct the prehearing statement error in his “Motion for an Order Re-Instating Claim.” The AJ’s December 6, 2006, “Order Denying Motion to Reinstate Claim” expressly noted Cook’s failure to “attach a properly completed prehearing statement to” his “Motion for an Order Re-Instating Claim[,]” such that Cook’s claim would not be reinstated to the Commission’s “active docket....” The order became final twenty days later, on December 26, 2006, at which point Cook had no claim pending before the Commission. See Miss.Code Ann. § 71-3-47 (Rev. 2011). Furthermore, the one-year statute of limitations began to run at that time. See Miss.Code Ann. § 71-3-53 (Rev. 2011). Throughout 2007, while Cook “submitted] several notices of depositions and amended prehear-ing statements,” he never “petition[ed] to have his claim reinstated.” Cook, 81 So.3d at 1129. Not until June 17, 2008, did Cook file an “Amended Motion to Reinstate” along with a properly completed prehearing statement. In dismissing Cook’s motion as proeedurally barred by the statute of limitations, the AJ noted that Cook had not complied with her earlier order in filing only “Amended Pretrial Statements” and deposition notices, without any accompanying “Motion to Reinstate the Claim.”

¶ 6. Under these circumstances, this Court is not presented with an “even question” or a “[d]oubtful case” which would be controlled by the “beneficial purposes” of the Mississippi Workers’ Compensation Act. Metal Trims Indus., Inc. v. Stovall, 562 So.2d 1293, 1297 (Miss.1990); Guthrie, 554 So.2d at 918. To jettison the Commission’s established procedural rules and rulings on how a claimant shall pursue his case, as advocated by the dissent, would contravene this Court’s position that “[i]t is a rare day when we will reverse the Commission for an action taken in the implementation and enforcement of its own procedural rules.” Delta Drilling Co. v. Cannette, 489 So.2d 1378, 1380-81 (Miss.1986). See also Miss. State Tax Comm’n v. Mask, 667 So.2d 1313, 1314 (Miss.1995) (“The Court has generally accorded great deference to an administrative agency’s construction of its own rules and regulations and the statutes under which it operates.”). Furthermore, to reject the Commission’s sound rule and ruling creates an expansive void regarding the applicable rule. In the event of such displacement, what becomes the new rule: File at your leisure? File when/as convenient? File when moved by the Spirit? Such an approach invites chaos and disorder. Regardless of Cook’s subjective intent in filing the “Amended Pretrial Statements” and deposition notices, those filings wholly failed to comply with the AJ’s July 27, 2006, Order regarding reinstatement of his claims, i.e., they were not accompanied by a “Motion to Reinstate the Claim.” Rather, Cook’s actions were analogous to a civil litigant filing pretrial motions or deposition notices following dismissal of the case. Such filings do not resurrect the case. In the absence of a pending case, such filings are a nullity, insufficient to toll the statute of limitations.

¶ 7. Many putative suitors intend to file lawsuits; and many lawsuits evidencing an intent to pursue a remedy are dismissed for failure to follow the rules. Intent to proceed does not excuse Cook’s failure to follow established procedural rules and court orders providing repeated instruction on his need for, and the means to, cure. A suitor’s intent does not toll the statute of limitations. It is his action, or failure to act, that decides the issue. Cook did not file an “Amended Motion to Reinstate” with the proper prehearing statement attached until June 17, 2008, nearly six months after the statute of limitations had expired on December 26, 2007. Therefore, Cook’s claim was properly dismissed. To hold otherwise would eviscerate the Commission’s rules and rulings of their statutorily intended effect, since “[a] rule which is not enforced is no rule at all.” Allen v. Nat’l R.R. Passenger Corp., 934 So.2d 1006, 1011 (Miss.2006) (quoting Salts v. Gulf Nat’l Life Ins. Co., 872 So.2d 667, 674 (Miss.2004)).

CONCLUSION

¶ 8. Cook’s claim is time-barred. Accordingly, the judgments of the Mississippi Court of Appeals, the Circuit Court of Rankin County, and the Mississippi Workers’ Compensation Commission are affirmed.

¶ 9. AFFIRMED.

CARLSON AND DICKINSON, P.JJ., LAMAR, AND PIERCE, JJ., CONCUR. DICKINSON, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND CHANDLER, JJ. KING, J., NOT PARTICIPATING.

DICKINSON, Presiding Justice,

specially concurring:

¶ 10. While I agree with the majority that workers’ compensation applicants must follow the law, I am surprised to read this Court’s doctrinaire view that the Commission’s rules — which, in terms of authority, hardly rise to the level of statutes — should be so strictly applied. Were all members of this Court to apply the same level of commitment to the strict application of statutes (say, for instance, the State’s statutory obligation to bring the accused to trial within 270 days), some of this Court’s decisions would certainly have been different.

¶ 11. I am of the opinion that the law should be strictly applied — whether doing so serves to benefit the accused or the State in a criminal prosecution; or to grant or deny benefits to an injured worker. And I respectfully suggest that prosecutors and judges are no less obligated to follow the law than are applicants for workers’ compensation benefits or the accused in criminal proceedings. Lady Justice, I am told, is supposed to be blind. I therefore specially concur in the majority opinion, and take this opportunity to record my notice of this Court’s troubling inconsistency.

WALLER,

Chief Justice, dissenting:

¶ 12. Because I would hold that Cook took sufficient action to toll the statute of limitations on his workers’ compensation claim, I would reverse the Court of Appeals and the Rankin County Circuit Court and remand to the Commission for further proceedings. Accordingly, I respectfully dissent.

¶ 18. Vardaman Dunn, in his oft-cited treatise on workers’ compensation law, said, “The humanitarian objectives of compensation laws should not be defeated by over-emphasis on technicalities or by putting form above substance.” Dunn, Vardaman S., Mississippi Workmen’s Compensation § 32 (3d ed. 1990). Long ago, this Court expounded on the beneficent purpose of workers’ compensation law:

[T]he worker’s compensation acts should, must, or will be accorded a broad or liberal construction or interpretation, on the various grounds that the acts are remedial in their nature, and that the acts are remedial in their purposes, objects, or operation, that they constitute commendable legislation, or humane, humanitarian, paternal, or social legislation, that they have a beneficent or beneficial purpose, that they are enacted for worthy, public, humane, or humanitarian purposes, that they are grounded in justice, and economically sound, affect the public welfare or interest, establish or are founded on a public policy, and are authorized by the police power.
... [T]he acts are not to be given a strict construction or application, nor are they to be given a narrow, strained, forced, harsh, rigid, unrealistic, fanciful, or technical construction or interpretation.

L.B. Priester & Son, Inc. v. Bynum’s Dependents, 244 Miss. 185, 197, 142 So.2d 30, 31 (Miss.1962) (quoting 99 C.J.S. Workmen’s Compensation § 20b). The Court repeatedly has affirmed the principle that the Mississippi Workers’ Compensation Act is to be construed liberally in favor of claimants. See, e.g., ABC Mfg. Co. v. Doyle, 749 So.2d 43, 47 (Miss.1999); Harper v. N. Miss. Med. Ctr., 601 So.2d 395, 398 (Miss.1992); Stuart’s, Inc. v. Brown, 543 So.2d 649, 652 (Miss.1989); Big “2” Engine Rebuilders v. Freeman, 379 So.2d 888, 889 (Miss.1980). With this in mind, this Court has “allowed the reopening of Worker’s Compensation claims if justice so required.” Stovall, 562 So.2d at 1296. The Court’s liberal construction of the Act, including the application of the statute of limitations, is evident in two cases factually analogous to the case at hand.

¶ 14. In Harper v. North Mississippi Medical Center, 601 So.2d 395 (Miss.1992), this Court held the claimant had tolled the one-year statute of limitations, despite having failed to file a formal petition to reopen the claim. Harper, the claimant, filed a petition to controvert more than one year after the filing of a Form B-31 Final Report. Id. at 396. However, prior to the expiration of the statute of limitations, Harper had sent a letter to the Commission stating that she was still having problems with her back and needed help. Id. at 395-96. She also sought additional medical treatment and filed a Form B-9 Medical Report with the Commission. Id. at 396. This Court held that Harper’s letter, combined with the filing of her medical report, served as a “sufficient request and enforcement of payment so as to serve as a substitute for a formal petition to reopen.” Id. at 398. Accordingly, the Court held the statute of limitations had been tolled. Id. at 397.

¶ 15. In Doyle, this Court again found that actions other than a formal petition to reopen were sufficient to toll the statute of limitations on a claim. Doyle, 749 So.2d at 47. Doyle, the claimant, failed to file a Form B-5, 11 Petition to Controvert within one year after his employer filed a Form B-31 Final Report, notifying Doyle of the cessation of his benefits. Id. at 45. The Commission’s Procedural Rules required a claimant to file such a petition in order for his claim to be controverted. Id. at 46. Within the one-year period following the last date of payment, Doyle’s newly retained attorneys did file an entry of appearance, referencing Doyle’s interest in continued benefits and attaching a notice of controversy, stating that Doyle remained injured and unable to work. Id. When Doyle finally filed a petition to controvert nearly eighteen months after the date of last payment, the Commission held the claim barred by the statute of limitations. Id. at 45. This Court reversed, holding that the entry of appearance constituted a “sufficient request for payment,” since it contained Doyle’s allegation that she continued to be due medical payments and disability benefits. Id. at 47. The Court held that this informal request for payment was sufficient to toll the statute of limitations, despite the fact that Doyle had not filed a proper petition to controvert within one year following the last date of payment. Id.

¶ 16. In today’s case, Cook filed two amended pretrial statements following the AJ’s December 6, 2006, order of dismissal. These statements noted that Cook’s disability status and the amount of benefits he was due were contested. Furthermore, the statements alleged that Cook and Home Depot did not agree on his date of maximum medical recovery. It is apparent that these statements were intended to show that Cook was continuing to seek disability benefits. Cook also filed several notices of deposition, and took the deposition of Dr. David Lee on December 28, 2007.

¶ 17. As with the claimants in Doyle and Harper, Cook’s actions subsequent to the AJ’s order constituted a “sufficient request for payment” to toll the statute of limitations. See Doyle, 749 So.2d at 47. While recognizing that “doubtful cases” or “even questions” are to be decided in favor of compensation, the majority gives no credit to Cook’s actions taken in an effort to pursue compensation.

¶ 18. The majority points out that Harper and Doyle predate the effective date of the current version of the Mississippi Workers’ Compensation Commission’s General and Procedural Rules. (Maj. Op. ¶ 4, n. 8). I fail to see how this is significant. First, in Doyle, the Court recognized that the claimant’s actions were not in compliance with the Commission’s Procedural Rules, as the Rules existed at that time. Doyle, 749 So.2d at 46. Despite this, the Court held that Doyle had taken sufficient action to toll the statute of limitations on his claim. Furthermore, Procedural Rule 5 of the Mississippi Workers’ Compensation Commission, cited by the majority, exists in nearly identical form today as it did in 1999, when Doyle was decided. See Miss. Workers’ Comp. Comm’n, Workers’ Comp. Law of Miss, and Rules of the Comm’n 53 (1994). Also, the Court in Harper and Doyle was addressing the same statute of limitations at issue today. See Harper, 601 So.2d at 395; Doyle, 749 So.2d at 46 (each addressing Section 71-3-53). Finally, the majority points out that Harper is distinguishable from today’s case since the Court in Harper was affirming the Commission’s ruling on a statute-of-limitations issue. (Maj. Op. ¶ 4, n. 8). However, in Doyle, the more recent case, this Court reversed the Commission’s ruling that the claimant had not tolled the statute of limitations. Doyle, 749 So.2d at 45, 47.

¶ 19. The majority also takes issue with my reliance on Cook taking Dr. Lee’s deposition as one of the actions sufficient to toll the statute of limitations. The majority believes that because this took place on December 28, 2007, it occurred “after the statute of limitations had expired.” (Maj. Op. ¶ 5, n. 9). However, Cook had taken significant actions prior to this date, including filing multiple amended pretrial statements and several notices of deposition. Based on this, I would find that Cook had taken actions sufficient to toll the limitations period prior to the date of the deposition.

¶ 20. I agree with the majority that “[a] suitor’s intent does not toll the statute of limitations. It is his actions, or failure to act, that decides the issue.” (Maj. Op. ¶ 7). However, Cook did take action. Cook’s amended pretrial statements, combined with Cook’s notices of deposition and eventual taking of Dr. Lee’s deposition, were more than sufficient to put Home Depot on notice that Cook continued to request and seek enforcement of payment. In barring Cook’s claim for his failure to file a formal petition to controvert with a proper prehearing statement attached, the majority incorrectly focuses on “form above substance,” and ignores the beneficent purpose of the worker’s compensation acts. See Dunn, Mississippi Workmen’s Compensation § 32; Prentice v. Schindler Elevator Co., 13 So.3d 1258, 1260-61 (Miss.2009); Freeman, 379 So.2d at 889.

¶ 21. Based on this Court’s precedent, and considering the beneficent purpose of the worker’s compensation acts, I would reverse the Court of Appeals and the trial court and hold that Cook took sufficient action to toll the statute of limitations on his claim. Accordingly, I respectfully dissent.

KITCHENS AND CHANDLER, JJ„ JOIN THIS OPINION.

      . The bracketed portions of this quote, including bracketed footnotes, have been added by this Court.

      . The "Order Dismissing Claim for Claimant's Failure to File a Completed Prehearing Statement” specifically stated that "if [Cook] desires to file a motion to reinstate the claim, he/she must attach to the motion a properly completed prehearing statement and a proposed order or the motion will be denied.” (Emphasis added.)

      . The "Order Denying Motion to Reinstate Claim” provided that "because [Cook] did not attach a properly completed prehearing statement to the motion or did not notice the motion[,]” his claim would not be reinstated to the Commission's “active docket....” (Emphasis added.)

      . These "Amended Pretrial Statements,” along with subsequent deposition notices, did not accompany a "Motion to Reinstate the Claim.”

      . See Miss.Code Ann. § 71-3-47 (Rev. 2011) (a "decision shall be final unless within twenty (20) days a request or petition for review by the full commission is filed.”).

      . The "Order of Dismissal” stated that "[n]either the notices of ... deposition nor the Amended Prehearing Statements ... was effective to erase the one-year statute of limitations.”

      . Cook has raised no constitutional or statutory violation, and the procedural rule at issue comports with due process and equal protection.

      . The effective date of these rales followed this Court's decisions in Harper v. North Mississippi Medical Center, 601 So.2d 395 (Miss.1992) and Doyle, upon which Cook and the dissent rely. (Waller Op. at ¶¶ 13, 14, 15, 17, 18). Furthermore, the Mississippi Workers’ Compensation Commission Procedural Rules at issue in the case sub judice were not addressed in Harper and Doyle. Finally, this Court notes that the Harper Court affirmed the Commission's decision upon concluding "that there was substantial evidence in the record to support the Commission's decision that Harper’s November 14, 1984, letter acted as a petition to reopen her claim, thus tolling the statute of limitations.” Harper, 601 So.2d at 397 (emphasis added).

      . The dissent additionally relies, erroneously, upon the "eventual taking of Dr. David Lee's deposition,” which occurred on December 28, 2007, after the statute of limitations had expired. (Waller Op. at ¶ 20).

      . As grounds for reversing the Commission, the "beneficial purposes” of the Act should come into play only on close calls. Miller Transporters, Inc. v. Guthrie, 554 So.2d 917, 918 (Miss.1989). By analogy, as the tie goes to the runner in baseball, the close call goes to the employee in workers’ compensation matters. But the present case is more akin to a baserunner out by multiple steps, for whom the Act’s "beneficial purposes” are simply not implicated. Id. In claiming that this Court "has moved the bag back several feet[,]” the dissent disregards both the clear procedural rule on prehearing statements and, more importantly, the beneficent leniency extended by the AJ in the "Order Dismissing Claim for Claimant's Failure to File a Completed Pre-hearing Statement,” wherein she instructed Cook on the proper procedure to reinstate his claim, which Cook inexplicably failed to follow. (Waller Op. at ¶ 17 n. 13).

      . Miss.Code Ann. § 99-17-1 (Rev. 2007).

      . McBride v. State, 61 So.3d 138 (Miss.2011); Murray v. State, 967 So.2d 1222 (Miss.2007).

      . In keeping with the majority’s baseball analogy, based on this Court’s precedent, if Cook is "out by multiple steps," it is only because the majority has moved the bag back several feet. (See Maj. Op. ¶ 6, n. 10).

      . The only difference between the prior version of this rule, with an effective date of September 1, 1993, and the version quoted by the majority is that the current version refers to a "prehearing statement” where the prior version labeled it a "pretrial statement.” Otherwise, the rule is unchanged.