author: DAVID E. CHATELAIN, Judge. COOKS, J.,

text:
    Gerald O. BELL v. Patrick THIBODEAUX and Affiliated Blind of Louisiana, Inc.
    No. 10-174.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Harold D. Register, Jr., Attorney at Law, Lafayette, Louisiana, for Plaintiff/Appellant, Gerald 0. Bell.
    Mark R. Pharr, III, Bobby G. Hawkins, Galloway, Johnson, Tompkins, Burr & Smith, Lafayette, Louisiana, for Defendants/Appellees, Affiliated Blind of Louisiana, Inc., Patrick Thibodeaux.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, J. DAVID PAINTER, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.
   DAVID E. CHATELAIN, Judge.

h Plaintiff appeals a judgment of the trial court granting summary judgment in favor of Defendants and dismissing his tort claims against them with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In December of 2006, Patricia A. Bell, who was legally blind, enrolled as a student at Affiliated Blind of Louisiana, Inc. (Affiliated Blind). Ms. Bell was twenty-nine years of age. Affiliated Blind is a training center that provides particularized instruction to hearing and seeing impaired individuals on how to function in society in light of their impairments. Ms. Bell underwent a two-week initial assessment to determine her strengths and weaknesses. Patrick Thibodeaux (Mr. Thibodeaux), a long-time employee of Affiliated Blind, performed the assessment. Mr. Thibo-deaux is also legally blind. Following the assessment, Ms. Bell began her formal training with Affiliated Blind in January of 2007 and worked with Mr. Thibodeaux four days a week for approximately two hours each day.

On May 6, 2007, Ms. Bell was instructed to independently traverse a stairwell. While attempting to climb the stairs, she fell and injured herself, requiring medical attention. Ms. Bell filed suit on November 19, 2007, against Mr. Thibodeaux and Affiliated Blind (Defendants), alleging that:

As a result of the accident, plaintiff, Patricia Bell sustained serious injuries to her body, necessitating immediate medical treatment. The plaintiff has also experienced multiple seizures and sustained severe headaches as a result of the fall.

Unfortunately, Ms. Bell passed away on July 10, 2008. The death certificate listed “long-standing kidney disease” as the cause of death. As a result of Ms. Bell’s death, 12her former husband, Dr. Gerald O. Bell, on behalf of Ms. Bell’s minor son, Hunter Bell, was substituted as Plaintiff.

After answering Plaintiffs petition, Defendants filed a motion for summary judgment, contending they did not breach any duty owed to Ms. Bell. After conducting a hearing on the motion, the trial court granted summary judgment stating “since the original plaintiff is deceased, I don’t see how he could prevail anyway.” Plaintiff appeals, contending the trial court erred in granting summary judgment.

DISCUSSION

In Dinger v. Shea, 96-448, pp. 4-5 (La.App. 3 Cir. 12/11/96), 685 So.2d 485, 488-89, we set forth the standard of appellate review of summary judgments:

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Potter v. First Federal Sav. and Loan Ass’n, 615 So.2d 318 (La.1993). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any, show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). A fact is “material” if its existence potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the relevant legal dispute. Cormier v. Wise, 93-1434 (La.App. 3 Cir. 6/1/94); 638 So.2d 688. A fact is “at issue” if there exists any reasonable doubt as to its existence. Durrosseau v. Century 21 Flavin Realty, Inc., 594 So.2d 1036 (La.App. 3 Cir.1992).
In the past, any doubt regarding the existence of material facts was to be resolved against granting the summary judgment, even if grave doubts existed as to a party’s ability to establish disputed facts at trial. Penton [v. Clarkson, 93-657 (La.App. 1 Cir. 3/11/94)], 633 So.2d 918 (citations omitted). The amendment does not change the law regarding burdens of proof, as the mover is still required to prove the absence of a genuine issue and his entitlement to judgment. Short v. [Giffin ], 96-0361 (La.App. 4 Cir. 8/21/96); 682 So.2d 249; Walker v. Kroop, 96-0618 (La.App. 4 Cir. 7/24/96); 678 So.2d 580. However, it now appears, based on the new language of section (C), that in order to rebut a showing made by the mover of the non-existence of a genuine issue of material fact, the nonmoving party will be held to a higher standard of proof, i.e. a non-moving party must sufficiently establish the existence of proof of an essential element of his claim on which he is to bear the burden of proving at trial.

See also Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323.

In their motion for summary judgment, Defendants acknowledged that Affiliated Blind, in its role as a school for the hearing and sight impaired, and Mr. Thi-bodeaux, as an instructor, were charged with a duty of exercising reasonable supervision over Ms. Bell, their student. Nevertheless, they maintain the duty to exercise reasonable supervision was not breached in this case. In support of their motion for summary judgment, Defendants presented the affidavit of Mr. Thibo-deaux wherein he stated that: (a) for the past eleven years he has served as a mobility instructor of the seeing impaired and hearing impaired; (b) he performed a two-week assessment of Ms. Bell to determine her strengths and weaknesses; (c) he instructed Ms. Bell between January 2007 and March 2007 approximately four days a week for about two hours each session; (d) during those sessions he instructed Ms. Bell on the proper way to ascend and descend steps and stairwells using her cane and determined she was able to independently navigate the stairwell; and, (e) by March 2007, Ms. Bell had received at least four or five lessons involving traversing steps and stairwells.

Plaintiff maintains that Ms. Bell was only provided with one training session prior to the date of the accident and Ms. Bell told Mr. Thibodeaux on the date of that ^accident that she was afraid to traverse the stairwell on her own. Nevertheless, Mr. Thibodeaux left Ms. Bell unattended, and she fell while attempting to climb the stairs. Thus, Plaintiff maintains these genuine issues of material fact should have precluded summary judgment in this case.

Defendants assert these “attempts to create issues of fact” are “nothing more than fabrications which cannot be supported by any witness.” They point out that because Ms. Bell died before giving a deposition in this matter and because her accident was unwitnessed, Plaintiff will not be able to provide any testimony or evidence to prove the allegation that Affiliated Blind and/or Mr. Thibodeaux failed to adequately exercise reasonable supervision over Ms. Bell.

When a motion for summary judgment is made and supported, as required by La.Code Civ.P. art. 966, “an adverse party may not rest on the mere allegations or denials of his pleading.” La.Code Civ.P. art. 967(B); Douglass v. Easton, 06-1404 (La.App. 3 Cir. 3/7/07), 953 So.2d 157, writ denied, 07-650 (La.5/11/07), 955 So.2d 1282. Rather, “his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial.” La.Code Civ.P. art. 967(B). Otherwise, “summary judgment, if appropriate, shall be rendered against him.” Id.

We acknowledge the difficult position substituted Plaintiff has in the present case because his mother, Ms. Bell, died. Notwithstanding, once Defendants made a properly supported motion for summary judgment, Plaintiff was required “to produce factual support sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial.” La.Code Civ.P. art. 966(C)(2). Plaintiff presented no competent evidence to oppose Defendants’ motion for summary judgment. To the | ¡^contrary, in contravention of La.Code Civ.P. art. 967(B), Plaintiff relied solely upon the fourth paragraph of the petition as evidence of the existence of a genuine issue of material fact. Accordingly, the trial court properly granted summary judgment in favor of Defendants.

DECREE

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Defendants, Affiliated Blind of Louisiana, Inc. and Patrick Thibodeaux. All costs of this proceeding are assessed against Dr. Gerald O. Bell, on behalf of Patricia Bell’s minor son, Hunter Bell.

AFFIRMED.

COOKS, J., dissents and assigns written reasons.

PAINTER, J., dissents for the reasons assigned by Judge COOKS.

COOKS, J.,

dissenting.

U respectfully dissent from the majority’s decision to affirm the trial court’s grant of summary judgment. It is well settled that in reviewing summary judgments, we must construe any factual inferences drawn from the evidence in favor of the plaintiff. Further, in determining whether an issue is genuine, this Court cannot make determinations on the merits of the claim, make credibility determinations, or evaluate the weight of the evidence. See Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

In its argument in favor of summary judgment, Defendants acknowledged Affiliated Blind (in its. role as a school for the hearing and sight impaired) and Mr. Thi-bodeaux (as the instructor) were charged with a duty of exercising reasonable supervision over Ms. Bell, the student. Defendants alleged Ms. Bell was “taught the proper way to ascend and descend steps and stairwells using her cane.” They also contend Ms. Bell completed at least five training sessions with Mr. Thibodeaux pri- or to the date of the accident. It was based upon her prior performances in these training sessions, that led Mr. Thibo-deaux to conclude she was able to independently navigate the stairwell. Thus, they maintain the duty to exercise reasonable supervision was not breached in this case.

However, Plaintiff maintains Ms. Bell was only provided with one training |2session prior to the date of the accident, and specifically told Mr. Thibodeaux on that date she was afraid to traverse the stairwell on her own. Thus, Plaintiff maintains these genuine issues of material fact should have precluded summary judgment in this case. Defendants assert these “attempts to create issues of fact” are “nothing more than fabrications which cannot be supported by any witness.” Clearly, Defendants are relying on the fact that Ms. Bell cannot testify at tidal since she is now deceased. The trial court apparently concluded this unfortunate fact was a death knell for Plaintiff at trial on the merits, specifically stating “since the original plaintiff is deceased, I don’t see how he could prevail anyway.”

While the trial court’s prediction may eventually come to pass, it is not grounds for summary judgment. “[T]he likelihood of success at trial is irrelevant to the question of the propriety of a summary judgment.” Montgomery v. Boh Bros. Const. Co., Inc., 572 So.2d 368, 370 (La.App. 4 Cir.1990). See also Dibartolo v. Stage One-The Hair Schools, 09-511 (La.App. 3 Cir. 11/4/09), 23 So.3d 1038, writ denied, 09-2630 (La.2/12/10), 27 So.3d 849. Therefore, I find the trial court’s granting of summary judgment on these grounds was improper, and would reverse and remand this case for further proceedings.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . Although we affirm the trial court's grant of summary judgment, we are mindful that "the likelihood of success at trial is irrelevant to the question of the propriety of a summary judgment.” Montgomery v. Boh Bros. Const. Co., Inc., 572 So.2d 368, 370 (La.App. 4 Cir.1990). Nevertheless, for reasons more fully expressed below, our affirmation in the present case is not based on the likelihood of success at trial. Rather, our affirmation is premised upon the shifting burden of proof in a summary judgment setting as enunciated in La.Code Civ.P. arts. 966(C)(2) and 967(B).


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Cheryl F. BENOIT v. ACE TRANSPORTATION.
    No. 10-371.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Michael Lee Hebert, Baton Rouge, LA, for Plaintiff/Appellee-Cheryl F. Benoit.
    Michael Edward Parker, Allen & Gooch, Lafayette, LA, for Defendants/Appellants-Liberty Mutual Insurance Company and Ace Transportation.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

| Jn this workers’ compensation case, the defendants appeal the judgment of the Office of Workers’ Compensation (“OWC”). The plaintiff, Cheryl Benoit, worked as a driver for defendant, ACE Transportation (“ACE”). In 2006, while driving for ACE, Ms. Benoit was involved in a vehicular accident in Texas. She returned to Louisiana and sought treatment for injuries to her back. ACE and its insurer, Liberty Mutual Insurance Company (“Liberty”), denied her claims for treatment. Specifically, ACE and Liberty alleged that Ms. Benoit gave false statements about her medical history on her employment application. Because Ms. Benoit failed to report a prior workplace injury and had received social security disability benefits, ACE and Liberty claimed they were deprived of recovering from the Second Injury Fund.

The OWC disagreed and found that Ms. Benoit suffered a compensable accident and was entitled to benefits. The OWC also found that Ms. Benoit did not commit fraud. ACE and Liberty appeal. For the foregoing reasons, we affirm the judgment of the OWC.

I.

ISSUES

We must decide whether:

(1) the OWC manifestly erred in refusing to impose sanctions on Ms. Be-noit for submitting an alleged false claim;
(2) the OWC manifestly erred by finding that Ms. Benoit did not forfeit her benefits under La.R.S. 23:1208.1;
(3) the OWC manifestly erred by finding that Ms. Benoit was entitled to indemnity benefits from the date of her accident and all medical costs associated with Dr. Robles’ treatment; and,
| ¾(4) the OWC manifestly erred by imposing penalties and fees on ACE and Liberty.

II.

FACTS AND PROCEDURAL HISTORY

ACE hired Ms. Benoit as a truck driver in 2003. At that time, she completed an employment questionnaire and denied any prior back injuries. Ms. Benoit failed to disclose that she injured her back thirteen years previously, while working at Wal-Mart. After the Wal-Mart accident, Ms. Benoit was diagnosed with a herniated disc in her back. She received treatment, and in 1992, her injuries appeared to have subsided. From 1995 to 2005, Ms. Benoit collected social security disability benefits for a multitude of problems including diabetes, nervousness, heel spurs, corporal tunnel syndrome, degenerative disc disease, and back problems. Despite these infirmities, Ms. Benoit completed and passed several physical exams and received her commercial driver’s license.

On November 10, 2006, while driving for ACE, Ms. Benoit was involved in an accident which caused injuries to her back. She initially sought treatment from Dr. Hector Robles and has continued receiving treatment from Dr. Robles for her injuries from the ACE accident. Ms. Benoit sought workers’ compensation benefits from ACE. ACE and Liberty denied her claims, and Ms. Benoit initiated the underlying lawsuit. The OWC awarded Ms. Be-noit indemnity and medical benefits and assessed penalties and attorney fees against ACE and Liberty. They appeal. Ms. Benoit answers the appeal and requests additional attorney fees for work done on appeal.

JiH.

LAW AND DISCUSSION

Standard of Review

The supreme court articulated the standard of review in workers’ compensation cases as follows:

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (LaApp. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105[, writ denied, 03-2581 (La.11/26/03), 860 So.2d 1139],

Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.

Section 23:1208 Sanctions

ACE and Liberty assert in their first assignment of error that the OWC erred by not assessing sanctions against Ms. Benoit under La.R.S. 23:1208. Section 1208 provides sanctions against claimants for reporting false workers’ compensation claims. Prior to this appeal, neither ACE nor Liberty ever raised the issue of Section 1208 fraud. Under La.R.S. 23:1208, fraud is an affirmative defense that must be specifically pled. Odom v. Kinder Nursing Home, 06-1442 (La.App. 3 Cir. 4/25/07), 956 So.2d 128. ACE and Liberty failed to plead fraud as an affirmative defense in their Answer. Thus, they are not permitted to do so on appeal.

^Moreover, even if ACE and Liberty had properly pled fraud as an affirmative defense in their Answer, they failed to follow through with the argument on appeal. The preeminent case in Louisiana jurisprudence on this issue is Resweber v. Haroil Constr. Co., 94-2708 (La.9/5/95), 660 So.2d 7. ACE and Liberty, however, mention neither Resweber, nor any other case on the subject, in their brief. In fact, other than in their assignments of error and in a short paragraph on page eight of their brief, ACE and Liberty never mention Section 1208.

Section 1208.1 Forfeiture

ACE and Liberty allege Ms. Benoit has forfeited her right to benefits, pursuant to La.R.S. 23:1208.1. Louisiana Revised. Statutes 23:1208.1 provides for the forfeiture of an employee’s benefits when the employee fails to truthfully answer a medical questionnaire regarding previous injuries, disabilities, or other medical conditions if an answer directly relates to the medical condition for which he seeks benefits or the untruthfulness prejudices the employer’s ability to seek reimbursement of benefits it paid the employee from a statutorily-created fund, known as the Second Injury Fund. See La.R.S. 23:1371. Employers are allowed to ask employees about prior injuries so that they may:

[ejncourage the employment of physically handicapped employees who have a permanent, partial disability by protecting employers ... from excess liability for workers’ compensation for disability when a subsequent injury to such an employee merges with his preexisting permanent physical disability to cause a greater disability than would have resulted from the subsequent injury alone.

La.R.S. 23:1371(A).

Questionnaires may be used to obtain information about an employee’s permanent partial disability (“PPD”). A PPD is “any permanent condition, whether congenital or due to injury or disease, of such seriousness as to constitute a hindrance |sor obstacle to obtaining employment, to retention by an employer, or to obtaining re-employment if the employee becomes unemployed.” La.R.S. 23:1371.1(5). Thirty-four conditions qualify as permanently disabling. La.R.S. 23:1378(F).

Because forfeiture is a harsh remedy, La.R.S. 23:1208.1 must be strictly construed. Nabors Drilling USA v. Davis, 03-136 (La.10/21/03), 857 So.2d 407. A plaintiff forfeits her claims if there is: “(1) an untruthful statement; (2) prejudice to the employer; and (3) compliance with the notice requirements of the statute.” Id. at 414. The employer maintains the burden of proving each of these elements to avoid liability under the statute. Id.

An employer can establish prejudice in one of two ways. First, the employer can show that the employee’s untruthful answer directly relates to the medical condition at issue. Wise v. J.E. Merit Constructors, Inc., 97-684 (La.1/21/98), 707 So.2d 1214. An employer can also establish prejudice by showing that the employee’s answer on the questionnaire affects the employer’s ability to recover from the second injury fund. Id.

(A) Direct Relation Test

“[Djirect relation is established when the subsequent injury was inevitable or very likely to occur because of the presence of the preexisting condition.” Wise, 707 So.2d at 1220. Here, ACE and Liberty argue that because the 1990 accident and the 2006 accident involved the same body parts, Ms. Benoit forfeited her rights under La.R.S. 23:1208.1. Our court and the supreme court have rejected the anatomical identity test. Thus, we must reject ACE and Liberty’s argument that a direct relationship existed on that basis.

Next, we must determine whether the subsequent injury was inevitable or very likely to occur because of the presence of the preexisting condition. Ms. |,¡Benoit’s preexisting condition was an injury to her cervical spine. She was treated for that injury, and two years following the initial accident, Dr. Ricardo Leoni noted that Ms. Benoit had “no nerve root compression, no weakness or reflex asymmetry, no atrophy-chronic strain, no surgical lesions.” She had no injuries related to any herniation or ruptured discs. Moreover, she had no injuries to her lumbar spine. Dr. Leo-ni’s notes leave the impression that any spinal problems Ms. Benoit suffered as a result of the 1990 accident were resolved by 1992. Notably, after 1992, Ms. Benoit did not seek treatment for her neck or back until the time of the ACE accident in 2006. Indeed, before the 2006 accident, Ms. Benoit worked as a truck driver and held a commercial driver’s license. She routinely passed the physical exam required for the license.

Ms. Benoit’s subsequent injury occurred in November 2006. Ms. Benoit was driving an ACE truck when the vehicles in front of her slowed, and she applied the brakes. The truck’s load shifted and pushed the truck forward, causing a collision. Following the accident, Ms. Benoit’s physicians ordered MRI tests of the cervical and lumbar spine. Ms. Benoit was diagnosed with compressive disc disease, bulging discs, osteoarthritis, and disc herniation.

There is nothing in the record to show that the 2006 injuries were inevitable or very likely to occur as a consequence of the 1990 accident. To the contrary, Dr. Leoni’s notes as well as Ms. Benoit’s physical employment as a truck driver and her ability to pass numerous physical exams lead to the conclusion that Ms. Benoit’s previous conditions had resolved by the time of the accident in 2006. ACE and Liberty provided no expert testimony or documentation to rebut this conclusion. Thus, ACE and Liberty failed to prove a direct relation between ACE’s questionnaire and the 2006 injury that forms the basis of this claim.

| rj(B) The Second Injury Fund

We must next determine whether Ms. Benoit’s answer on the questionnaire was prejudicial because it affected ACE and/or Liberty’s ability to be reimbursed from the Second Injury Fund. ACE and Liberty argue that their rights were prejudiced because Ms. Benoit failed to disclose that she had neck and back injuries and that non-disclosure prevented ACE and/or Liberty from reimbursement from the Second Injury Fund.

“Reimbursement occurs when the employee has a PPD, when the employer has knowledge of the PPD, and when the PPD merges with a subsequent injury to result in a greater disability.” Wise, 707 So.2d at 1221 (citing La.R.S. 28:1878(A); La.R.S. 23:1371(A)). Here, ACE and Liberty cannot convincingly argue that Ms. Benoit suffered from a PPD. Her condition is not enumerated in the list of PPD conditions found in La.R.S. 23:1378(F), and the medical evidence in the record does not even hint that Ms. Benoit had any of these conditions. Moreover, Ms. Benoit passed a physical examination for truck driving seven years before the accident in Houston. Her health clearly did not impede her from obtaining employment or performing her duties at ACE.

Similarly, ACE and Liberty cannot prove merger of her previous injury with the injury at issue. In Nabors Drilling, 857 So.2d at 420, the supreme court enunciated a specific definition to the concept of “merger”:

In this connection, we note that under LSA-R.S. 23:1371(0(2), a ‘merger’ occurs not when the disability resulting with a subsequent injury in conjunction with a pre-existing permanent partial is ‘greater’ than that which would have resulted had the pre-existing permanent partial disability not been present, but when the disability is ‘materially and substantially greater.’ Two adverbs ‘materially’ and ‘substantially’ modify the adjective ‘greater.’ Consequently, although two disabling injuries added together will in most instances produce a ‘greater | ^disability,’ it is not enough under the statute simply to ‘add up’ the employee’s injuries.

The record is devoid of any evidence that Ms. Benoit’s first injury merged with her second injury, and ACE and Liberty failed to present any evidence of their own. Specifically, ACE and Liberty submitted no evidence or expert testimony on the issue of merger. Instead, they rely solely on Ms. Benoit’s previous award of social security benefits. ACE and Liberty neglect evidence, however, that explains the complete reason for Ms. Benoit’s social security benefits. Namely, Ms. Benoit requested social security benefits due to a multitude of health problems including diabetes, nervousness, heel spurs, corporal tunnel syndrome, degenerative disc, and a “bad back.” We cannot reasonably conclude that Ms. Benoit’s social security claim was based solely on injuries to her spine, as ACE and Liberty would like us to believe. ACE and Liberty also neglect evidence demonstrating that Ms. Benoit recovered from her 1990 accident. Indeed, before the 2006 accident, Ms. Benoit had not sought treatment for her neck or back since 1992. She passed physical exams to acquire her commercial driver’s license, and she ably performed her job for ACE. Thus, ACE and Liberty’s argument that a merger of Ms. Benoit’s injuries occurred falls short.

In sum, ACE and Liberty have not met their burden of showing forfeiture under 23:1208.1.

Indemnity

ACE and Liberty also argue that they do not owe indemnity benefits to Ms. Benoit because the judgment of the OWC does not indicate a specific starting date for payment of indemnity benefits and does not specify the medical bills to be paid. ACE and Liberty’s arguments are totally meritless. Because Ms. Benoit has not worked since the date of the accident, she is entitled to indemnity benefits retroactive 19to the date of the November 2006 accident. The benefits are calculated based upon her average weekly wage.

Moreover, all of Dr. Robles’ treatments related to Ms. Benoit’s present condition. Thus, she is entitled to reimbursement of all medical bills attributed to his treatment of her injuries. See Scott v. City of Pineville, 08-1410, (La.App. 3 Cir. 4/1/09), 8 So.3d 813, writ denied, 09-981 (La.6/19/05), 10 So.3d 742.

Fees and Penalties

ACE and Liberty next claim that the OWC erred in awarding penalties and attorney fees. The award of penalties and attorney fees is a question of fact, subject to the manifest error standard of review. Scott, 8 So.3d 813. “The purpose of imposition of penalties and attorney fees in workers’ compensation cases is to discourage indifference and undesirable conduct by employers and insurers.” Id. at 818. This court, in Johnson v. Transamerican Waste Co., 99-190, pp. 9-10 (La.App. 3 Cir. 6/2/99), 741 So.2d 764, 770, addressed the issue as follows:

In order to avoid the imposition of penalties, an employer must reasonably controvert the workers’ compensation claimants right to benefits. The test to determine if the employer has fulfilled its duty is whether the employer or his insurer had sufficient factual and medical information to reasonably counter the factual and medical information presented by the claimant. (Citations omitted).

In this case, it is clear that ACE and Liberty made no attempt to gather any additional information about Ms. Be-noit. They failed to conduct a thorough investigation, and they failed to offer any medical or scientific evidence of their own. Instead, ACE and Liberty attempted, time and time again, to delay Ms. Benoit’s claim. Their actions are inexcusable, and we find no error in the OWC’s award of penalties and attorney fees to Ms. Benoit. Moreover, we award an additional $3,500.00 in attorney fees to Ms. Benoit for work on this appeal.

JjgIV.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the OWC and award an additional $3,500.00 in attorney fees to Ms. Benoit for work on this appeal. Costs of this appeal are assessed to ACE and Liberty.

AFFIRMED.


author: SAUNDERS, Judge.

text:
    Martin PETITJEAN II, et al. v. SAMSON CONTOUR ENERGY E & P, LLC, et al.
    No. 10-496.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.
    Don Ray Beard, Attorney at Law, Christopher Everett Janke, Dennis, Bates & Bullen, LLP, Batom Rouge, LA, for Defendant Appellee, Samson Contour Energy E & P, LLC.
    Kenneth O’Neil Privat, Attorney at Law, Crowley, LA, for Plaintiff Appellant, Martin Petitjean II, Martin Petitjean III, Desiree S.T. Petitjean Casey, Yvette S.M. Claire Petitjean, Monique d’Youville Petitj Benoit, Claudette Petitjean Germano.
    William Seay Strain, William S. Strain & Associates, Baton Rouge, LA, for Defendant Appellee, Samson Contour Energy E & P, LLC, CL & F Resources, L.P., G. Exploration, LLC, R. Bohanan & Associates, LLC, Ridge Production II, LLC, Crystal Land Management, Inc.
    Robert Thomas Jorden Jr., Julie Des-hotels Jardell, Gordon, Arata, McCollam, et al., Lafayette, LA, for Defendant Appel-lee, Patricia Lynn Richard.
    Richard Charles Ellis, William S. Strain & Associates, Baton Rouge, LA, for Defendant Appellee Samson Contour Energy E&P, LLC.
    Court composed of JOHN D. SAUNDERS, J., DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   SAUNDERS, Judge.

h Herein, we address whether the trial court erred in granting summary judgment in favor of the Appellee and in finding that prescription had not been interrupted as to the Appellants’ mineral servitude. For the following reasons, the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY:

The case before us addresses a mineral servitude wherein the Appellants claim to be the owners of an undivided 1722/3042 interest in the minerals underlying Tracts 1, 2 and 5 of Sections 20 and 28, Township 10 South, Range 2 East, Acadia Parish, Louisiana (hereinafter referred to as the “subject tracts”).

The subject tracts were initially part of a larger area of land held and administered by W. Petitjean & Company. In 1979, an act of distribution of minerals was executed from the company to its partners. By a judicial compromise in November of 1993 (and corrected by an Act of Correction recorded November 2, 2001), all of the co-owners, including the Appellants, partitioned the surface land of the property that they owned in indivisión, including the subject tracts. The compromise was amended in 2001 to provide the following regarding mineral reservations:

All mineral interests pertaining to any properties partitioned will remain in undivided ownership whether currently under production or not, for the maximum allowable period of time. Each owner of the mineral interest shall retain their executive rights over those mineral interests.
The distributees hereby further amend the document by inserting the foregoing paragraph.

(Emphasis added).

In August of 2000, Prize Energy (hereinafter referred to as “Prize”) entered into a one year lease extension with the Appellants and other mineral and surface owners 12on a 5.78 acre tract of land (comprising tract 8 within the Plattsmier MT RC SUA Unit). In December of 2001, Prize obtained a new mineral lease from the Appellants and other surface and mineral owners over a 3.73 acre tract of land (comprising tract 9 within the Plattsmier MT RC SUA Unit).

In 2006, the Plattsmier-Huilin No. 1 Well was drilled and completed. The subject tracts are located within the exterior boundary of the Plattsmier MT RC SUA Unit, of which Samson Contour Energy E & P, L.L.C. (hereinafter referred to as the “Appellee”) is the operator.

It has been stipulated between the parties that no oil, gas, or other minerals have been produced from a well located on the subject tracts for a period in excess of ten years prior to the conduct of operations on the Plattsmier-Huilin No. 1 Well.

The Appellants made demand on the Appellee to provide reports and drilling costs in accordance with La.R.S. 30:103.1 and La.R.S. 30:103.2. The Appellee responded by denying that the Appellants had any mineral ownership in the subject tracts inasmuch as any mineral servitude that they may have had an interest in had since prescribed. Thereafter, the Appellants filed suit requesting that they be paid their mineral interest on the subject tracts. On cross-motions for summary judgment, the trial court denied the Appellants’ motion and granted summary judgment in favor of the Appellee. It is from this judgment that the Appellants appeal.

APPELLANTS’ ASSIGNMENT OF ERROR:

The Appellants assert that the trial court erred in granting summary judgment in favor of the Appellee and in finding that the requirements of La.R.S. 31:75 were not satisfied by the language of the 1993 judicial compromise.

LAW AND DISCUSSION ON THE MERITS:

\zStandard of Review

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966.

Discussion

The issue before this court is whether summary judgment granted in favor of the Appellee was appropriate. More specifically, we are asked by the Appellants to consider whether the language of the 1993 judicial compromise was sufficient to meet the requirements of La.R.S. 31:75, which states that the interruption of prescription resulting from unit operations may extend to the entirety of the tract burdened by a mineral servitude regardless of the location of the well or whether all of the tract is included within the unit.

From this court’s examination of the record, it is apparent that a mineral servitude was created through the 1993 judicial compromise.

It is well-settled law that a mineral servitude is extinguished by prescription resulting from non-use for ten years. La. R.S. 31:27(1). Such prescription against a mineral servitude is interrupted by good faith operations for the discovery and production of minerals. La.R.S. 31:29.

The parties have stipulated that no oil, gas, or other minerals have been produced from a well located on the subject tracts for a period in excess of ten years 14prior to the conduct of operations on the Platts-mier-Huilin No. 1 Well in 2006.

Ten years of non-use alone is not necessarily enough to extinguish the servitude on the subject tracts. If operations were conducted on land other than the subject tracts, but within the boundaries of the well unit encompassing the subject tracts, prescription would be interrupted as to the subject tracts.

Operations conducted on land other than that burdened by a mineral servitude and constituting part of a conventional or compulsory unit that includes only a part of the land burdened by the servitude will, if otherwise sufficient to interrupt prescription according to Articles 29 through 32, interrupt prescription only as to that portion of the tract burdened by the servitude included in the unit provided such operations are for the discovery and production of minerals from the unitized sand or sands.

La.R.S. 31:33.

Going further, La.R.S. 31:75 provides that land located outside of the well unit, but still burdened by the mineral servitude, will have its prescription interrupted by operations conducted within the well unit on land not burdened by the mineral servitude, so long as the parties agree expressly and in writing to invoke the benefits of the statute.

The rules of use regarding interruption of prescription on a mineral servitude may be restricted by agreement but may not be made less burdensome, except that parties may agree expressly and in writing, either in the act creating a servitude or otherwise, that an interruption of prescription resulting from unit operations or production shall extend to the entirety of the tract burdened by the servitude tract regardless of the location of the well or of whether all or only part of the tract is included in the unit.

La.R.S. 31:75.

In the present matter, prescription began to run against the Appellants with the origination of the servitude in 1993. The 2001 amendment to the compromise had no effect on the prescriptive period. If no interruption has occurred, then the servitude |ñshould have extinguished in 2003— three years prior to the conduct of operations on the Plattsmier-Huilin No. 1 Well.

The Appellants contend that their mineral rights with respect to the subject tracts have not prescribed, and they cite La.R.S. 31:75 as the source of the interruption. They urge that the following language of the 1993 judicial compromise invoked, expressly and in writing, the benefits of La.R.S. 31:75: “All mineral interests pertaining to any properties partitioned will remain in undivided ownership whether currently under production or not, for the maximum allowable period of time.”

The Appellants’ argument that La.R.S. 31:75 is applicable to the present matter would suggest that at some point between 1993 and 2003, there were operations conducted on lands outside of the mineral servitude and that some portion of the mineral servitude was encompassed within the well unit inside which the operations were conducted.

We find that even if such operations had occurred, the language used in the 1993 judicial compromise was insufficient to invoke La.R.S. 31:75. The statute requires that the parties agree expressly and in writing that “an interruption of prescription resulting from unit operations or production shall extend to the entirety of the tract burdened by the servitude tract regardless of the location of the well or of whether all or only part of the tract is included in the unit.”

Generally, in interpreting contracts, we look to the intent of the parties. La.Civ. Code art. 2045. Here, however, we find that a stricter analysis is necessitated by the requirement of La.R.S. 31:75 that there be an express writing.

. The Appellants’ written agreement merely states that their mineral interests will remain in undivided ownership for the maximum allowable period of time — making |c,no mention of La.R.S. 31:75 or its intention to have prescription interrupted on the entirety of the tract regardless of well location. While it is the view of this court that “La.R.S. 31:75” need not be specifically mentioned in the writing, the language used must leave no question that the parties intend to invoke the benefit of having the interruption of prescription extended to lands beyond what would occur under the default operation of law. It is not enough that the party’s intent be dis-cernable from a close reading of the contract. The desire to invoke the statute must be clearly driven home. It must be lucent enough to outside parties as to alert them that prescription will be interrupted and mineral rights will be preserved by operations conducted on lands not burdened by the mineral servitude.

We find that the language of the 1993 judicial compromise lacks the sufficient clarity discussed above. Accordingly, we do not find that the language of the 1993 judicial compromise amounts to an expressly written agreement as contemplated by the statute.

While the jurisprudential history on the interpretation of La.R.S. 31:75 is limited, we note the case of White v. Evans, 457 So.2d 159 (La.App. 2 Cir.1984), writ denied, 462 So.2d 207, where the court found the following language to be in compliance with the requirements of La.R.S. 31:75:

It is further agreed that ... production on any part of the pooled premises shall constitute an interruption of prescription liberandi causa then running against the ... mineral rights ... owned by any of the parties constituting SECOND PARTY in and to all of the lands covered by this pooling agreement and as to any and all other lands covered by any and all of said leases and so' long as there may be production of gas from any portion of the premises pooled herein or so long as royalty in lieu of such production shall be paid in accordance with the terms of this agreement, the same shall constitute an interruption of the running of prescription liberandi causa applicable under the law of the State of Louisiana to mineral servitudes

White, 457 So.2d at 161.

For the reasons stated above, this court finds that the language used in the Appellants’ 1993 judicial compromise was insufficient and fails to satisfy the requirements of La.R.S. 31:75.

CONCLUSION:

For the foregoing reasons, we find that the language of the 1993 judicial compromise was insufficient in complying with the requirements of La.R.S. 31:75. Accordingly, the judgment of the trial court is affirmed. All costs of this appeal are to be assessed to the Appellants.

AFFIRMED.


author: WALLER, Chief Justice,

text:
    COPIAH COUNTY, Mississippi v. Nancy OLIVER.
    No. 2009-IA-00809-SCT.
    Supreme Court of Mississippi.
    Jan. 13, 2011.
    Joseph W. Gill, Rebecca B. Cowan, Jackson, attorneys for appellant.
    Curt Crowley, attorney for appellee.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   ON MOTION FOR REHEARING

WALLER, Chief Justice,

for the Court:

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn and this opinion is substituted therefor.

¶2. Nancy Oliver filed for Chapter 7 bankruptcy, which she later converted to Chapter 13. After the bankruptcy court had confirmed her Chapter 13 payment plan, Oliver filed this personal-injury suit against Copiah County. Oliver, however, did not amend her bankruptcy schedule of assets to reflect the existence of this claim. We are asked to decide whether Oliver’s failure to do so requires that she be judicially estopped from pursuing her personal-injury claim. We decline to answer this question until the bankruptcy court has had an opportunity to determine whether Oliver had a duty to amend her schedule of assets. Accordingly, we affirm the trial court’s denial of summary judgment and direct the trial court to stay the proceedings until the bankruptcy court performs its function.

FACTS AND PROCEDURAL HISTORY

¶ 3. On October 15, 2005, Nancy Oliver filed a voluntary petition pursuant to Chapter 7 of the United States Bankruptcy Code, and a case was commenced in the United States Bankruptcy Court for the Southern District of Mississippi. Upon Oliver’s motion, the Chapter 7 proceeding was converted to a Chapter 13 case on December 15, 2005. Oliver filed her proposed Chapter 13 plan with the bankruptcy court on December 20, 2005. The bankruptcy court entered an order confirming the plan on February 14, 2006.

¶ 4. On March 27, 2006, Oliver tripped on a piece of loose carpet on the front steps of the Copiah County courthouse, and was injured as a result of her fall. On July 26, 2007, Oliver filed a complaint against Copiah County in the Circuit Court of Copiah County, alleging that the county was negligent for failing to correct a known, unreasonably dangerous condition on its premises, and that she had suffered injuries as a result of its negligence. Later, in response to interrogatories posed by Copiah County, Oliver disclosed that she previously had commenced the Chapter 13 bankruptcy proceeding, and was in the process of paying on her Chapter 13 plan. She also disclosed to the County the existence of her bankruptcy during her deposition.

¶ 5. On July 11, 2008, Copiah County filed a motion for summary judgment, asserting that Oliver should be judicially es-topped from pursuing her personal-injury claim because she had never amended her bankruptcy schedule of assets to reflect the existence of her claim against the county. On March 30, 2009, the circuit court held a hearing on Copiah County’s motion. During the hearing, Oliver’s counsel admitted that Oliver had not amended her bankruptcy schedule of assets to reflect her cause of action. Rather, Oliver’s counsel argued that Oliver is not required to amend her schedule of assets until her lawsuit against Copiah County is concluded, either by judgment or settlement.

¶ 6. On April 30, 2009, the circuit court denied Copiah County’s summary-judgment motion, finding that the motion should be addressed first in the United States Bankruptcy Court in which Oliver’s bankruptcy is pending. Thereafter, Copi-ah County filed a petition for interlocutory appeal, which this Court granted on June 24, 2009.

DISCUSSION AND ANALYSIS OF LAW

¶ 7. This Court reviews a trial court’s grant or denial of a motion for summary judgment or a motion to dismiss under a de novo standard. Monsanto v. Hall, 912 So.2d 134, 136 (Miss.2005).

¶ 8. The only question presented in this appeal is whether Oliver should be judicially estopped from pursuing her personal-injury claim against Copiah County for failing to amend her schedule of assets in the bankruptcy court to show the existence of the cause of action, even though the claim arose post-petition and post-confirmation.

¶ 9. The doctrine of judicial es-toppel should be applied to prevent a party from achieving unfair advantage by taking inconsistent positions in litigation.

Judicial estoppel is designed to protect the judicial system and applies where “intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.” In order to protect the integrity of the judiciary, judicial estoppel “must be invoked in the Court in which the apparent self-serving contradiction occurred and in which the defense is first asserted.”
[There are] three requirements for judicial estoppel: “(1) the party is judicially estopped only if its position is clearly inconsistent with the previous one; (2) the court must have accepted the previous position; and (3) the non-disclosure must not have been inadvertent.”

Kirk v. Pope, 973 So.2d 981, 991 (Miss.2007) (internal citations omitted).

¶ 10. In Kirk, this Court applied judicial estoppel against the plaintiff after he failed to disclose a breach-of-contract action to the bankruptcy court. Kirk, 973 So.2d at 991-92. The situation in this case, however, is distinguishable from that in Kirk. First, this case involves Chapter 13 of the bankruptcy code, whereas Kirk involved Chapter 7. Each bankruptcy mechanism has unique provisions regarding the status of the estate’s property and the duty to report. More significantly, it is undisputed that Oliver’s personal-injury claim, unlike Kirk’s breach-of-contract action, accrued and arose after she had filed her bankruptcy petition and after her Chapter 13 repayment plan was approved by the bankruptcy court, and she had begun making payments on the plan.

¶ 11. To decide if judicial estoppel applies to Oliver’s suit against Copiah County, it must be determined whether she had a duty to disclose to the bankruptcy court her post-petition, post-confirmation claim. We believe our most prudent course is to allow the bankruptcy court to decide this question and to stay further proceedings until it has had an opportunity to do so. This course ensures that the present action is prosecuted in the name of the real party in interest.

CONCLUSION

¶ 12. We affirm the trial court’s denial of summary judgment and direct the trial court to stay the proceedings until the bankruptcy court has had an opportunity to consider whether Oliver had a duty to disclose her post-petition, post-confirmation claim.

¶ 13. AFFIRMED AND REMANDED.

CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY.

      . The bankruptcy action is styled In Re: Nancy Jean Roberts; No. 05-07095-ee.

      . The plan required Oliver to make biweekly payments of $113.00 for thirty-six months, or until her debts under the plan were paid, but not to exceed sixty months.


author: IRVING, J.,

text:
    MISSISSIPPI INSURANCE GUARANTY ASSOCIATION, Appellant, v. Bridgette BLAKENEY, Appellee.
    No. 2008-WC-01840-COA.
    Court of Appeals of Mississippi.
    Dec. 8, 2009.
    Rehearing Denied June 8, 2010.

      Clifford C. Whitney III, Vicksburg, attorney for appellant.
    John Raymond Tullos, Raleigh, S. Wayne Easterling, Hattiesburg, attorneys for appellee.
    Before KING, C.J., IRVING and CARLTON, JJ.
   IRVING, J.,

for the Court.

¶ 1. Bridgett Blakeney was employed by the Laurel Housing Authority (LHA) when she was injured in a work-related car accident. Blakeney initially received workers’ compensation payments for her injuries. After the LHA’s workers’ compensation insurance company went bankrupt, Blake-ne/s workers’ compensation payments became the responsibility of the Mississippi Insurance Guaranty Association (MIGA). Thereafter, MIGA filed a motion with the Mississippi Workers’ Compensation Commission (Commission) requesting permission to suspend benefit payments to Blake-ney. MIGA sought suspension of benefits until it had received credit for a total of seventy thousand dollars which was the amount that Blakeney had received from solvent insurance companies: ten thousand dollars from the insurance company covering the third party driver at fault and sixty thousand dollars from the insurance company providing liability and uninsured motorist coverage for the LGA.

¶ 2. The motion was heard by an administrative law judge, who found that MIGA was entitled to the full setoff of seventy thousand dollars minus Blakene/s costs and expenses incurred in recovering the seventy thousand dollars. Both Blakeney and the LGA appealed to the Commission. The Commission, applying the provisions of Mississippi Code Annotated section 71-3-71 (Rev.2000), determined that MIGA was only entitled to credit for the ten thousand dollars, minus costs and expenses incurred by Blakeney, paid by the third party tortfeasor’s insurance company. MIGA appealed the Commission’s decision to the Jones County Circuit Court, which affirmed the decision of the Commission without further comment.

¶ 3. Feeling aggrieved, MIGA appeals and asserts: (1) that the exhaustion provision of the Mississippi Insurance Guaranty Association Law (MIGAL), found in Mississippi Code Annotated section 83-23-123 (Rev.1999), requires a claimant to exhaust solvent uninsured motorist coverage before collecting from MIGA on an insolvent worker’s compensation claim; (2) that Cossitt v. Nationwide Mutual Insurance Co., 551 So.2d 879 (Miss.1989) does not preclude MIGA from receiving a statutory credit under section 83-23-123; (3) that MIGA is entitled to a one-hundred-thousand-dollar credit, which MIGA alleges is the “net face amount of the available solvent insurance”; and (4) that MIGA’s credit should not be reduced by the amount of attorney’s fees and expenses incurred by Blakeney.

¶ 4. Finding no reversible error, we affirm.

FACTS

¶ 5. Blakeney was a passenger in a vehicle driven by a coworker on June 3, 2002, when the vehicle was involved in an accident with a vehicle driven by Ray Arring-ton. It is undisputed that the accident was Arrington’s fault. As a result of the accident, Blakeney suffered serious injuries.

¶ 6. Arrington was insured by a policy through Progressive Gulf Insurance Company. Blakeney ultimately received ten thousand dollars from Progressive, which was the full value of Arrington’s policy. Blakeney was covered by the LHA’s insurance. The LHA had uninsured motorist coverage through Coregis Insurance Company. When a demand was made to Core-gis, Coregis refused to cover Blakeney’s injuries, arguing that the LHA had rejected uninsured motorist coverage in writing. As a result of Coregis’s refusal to pay, Blakeney filed suit against Coregis in the Jones County Circuit Court. Coregis moved for summary judgment, but the circuit court denied the motion. Thereafter, Coregis sought an interlocutory appeal to the Mississippi Supreme Court, and while the appeal was pending, Coregis and Blakeney entered into settlement negotiations, the result of which was that Coregis paid Blakeney sixty thousand dollars to settle her claims.

¶ 7. Beyond the payments from Progressive and Coregis, Blakeney was also receiving workers’ compensation benefits from Legion Insurance Company, the LHA’s workers’ compensation carrier. On July 25, 2003, Legion was declared insolvent by the Commonwealth Court of Pennsylvania. As a result, Legion’s obligations were taken over by MIGA, which was created by the Mississippi Legislature as a non-profit association to pay covered insurance claims after a carrier has become insolvent. On November 20, 2007, MIGA filed a motion with the Commission, requesting permission to suspend benefit payments to Blakeney. In the motion, MIGA alleged that Blakeney had received or would receive seventy thousand dollars in benefits from the Progressive and Core-gis policies. MIGA further alleged that it was entitled to credit for the seventy thousand dollars because of the MIGAL’s exhaustion provision. In so arguing, MIGA acknowledged that the Mississippi Supreme Court had not yet ruled on “whether the exhaustion statute applies to solvent uninsured motorist policies such as the Coregis policy.” MIGA also acknowledged that the subrogation rights found in Mississippi Code Annotated section 71-3-71 “do not extend to the recovery of uninsured motorist benefits.” Nevertheless, MIGA argued that MIGAL should apply instead of the workers’ compensation provisions found in section 71-3-71. Ultimately, MIGA requested a suspension of its obligation to pay Blakeney “until such time as seventy thousand dollars in indemnity and medical benefits have accrued .... ” MIGA filed a petition to controvert with the Commission on November 26, 2007, which also essentially sought credit for the seventy thousand dollars in coverage that Blakeney had received from the other insurance companies.

¶ 8. MIGA’s motion was first heard by an administrative law judge, who ruled that MIGA was entitled to a credit of seventy thousand dollars due to the amounts that Blakeney had received from the other insurance companies. Both Blakeney and MIGA appealed the judge’s decision to the Commission. On July 10, 2008, after a March 17, 2008, hearing, the Commission issued an order, wherein it found: (1) that MIGA was bound by the provisions of section 71-3-71, rather than by MIGAL alone; (2) that “MIGA has stepped into the shoes of Legion, and not only has all the same rights as Legion would have, but the same ‘obligations’ as well”; (3) that MIGA was entitled to an offset for the ten thousand dollars from Progressive “after first deducting the reasonable costs of collection,” which the Commission found was four thousand dollars in attorney’s fees; and (4) that MIGA was not entitled to any offset from the sixty thousand dollars that Blakeney received from Coregis. MIGA then appealed the Commission’s ruling to the Jones County Circuit Court, which affirmed the Commission’s decision and found that “the decision of the Mississippi Workers’ Compensation Commission was supported by substantial evidence and ... properly applied the law to the facts.... ”

¶ 9. Additional facts will be related, as necessary, during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 10. Because this is a workers’ compensation case, our standard of review is limited and highly deferential:

The substantial evidence test is used. See Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1245-47 (Miss.1991). The Workers’ Compensation Commission is the trier and finder of facts in a compensation claim. [We] will overturn the Workers’ Compensation Commissionfs] decision only for an error of law or an unsupported finding of fact. Ga. Pac. Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991). Reversal is proper only when a Commission order is not based on substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law. Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992).

Total Transp., Inc. of Miss. v. Shores, 968 So.2d 400, 403-04(¶ 15) (Miss.2007) (quoting Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778(¶ 6) (Miss.2003)). Furthermore, as the Total Transportation court explained:

The function of the circuit court (and of [an appellate court]) on appeal from rulings of the Workers’ Compensation Commission is to determine whether there exists a quantum of credible evidence which supports the decision of the Commission. It is not the role of the circuit courts to determine where the preponderance of the evidence lies when the evidence is conflicting, given that it is presumed that the Commission, as trier of fact, has previously determined which evidence is credible and which is not. Metal Trims Indu[s.], Inc. v. Stovall, 562 So.2d 1293 (Miss.1990).

Id. at 404(¶ 15) (quoting Hale v. Ruleville Health Care Ctr., 687 So.2d 1221, 1224-25 (Miss.1997)). We note that this standard of review has also been applied in at least one workers’ compensation case involving MIGA. See Miss. Ins. Guar. Ass’n v. Brewer, 922 So.2d 807, 811(¶ 13) (Miss.Ct.App.2005). We also remain cognizant of the fact that “[d]ue to the beneficent purposes of the Mississippi Workers’ Compensation Act, we construe the statutes liberally in favor of injured workers.” ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 47(¶ 17) (Miss.1999) (citing Metal Trims Indus., Inc., 562 So.2d at 1297; Big “2” Engine Rebuilders v. Freeman, 379 So.2d 888, 889 (Miss.1980)).

¶ 11. In Mississippi Insurance Guaranty Association v. Goldin Properties, Inc., 893 So.2d 1062, 1063(¶3) (Miss.Ct.App.2004), this Court briefly discussed the history of MIGA and its creation:

MIGA administers a fund created to partially pay the claims against those insurers declared insolvent. This organization was created by the Mississippi [Legislature and is governed by the numerous [... ] sections contained in Mississippi Code Annotated volume 83, chapter 23. This fund is funded through assessments of its members based on “net direct written premiums” as a portion of their business generated in Mississippi. All insurance companies licensed to do business in Mississippi are members of MIGA. MIGA cannot assess collections of premiums made by non-MIGA members. Therefore, MIGA does not cover the claims against insolvent non-MIGA members.

1. Uninsured Motorist Coverage and MIGA

¶ 12. We And that issues one and two essentially require us to answer two questions: (1) which code section, section 83-23-123 or section 71-3-71, governs the amount of credit that MIGA is entitled to receive from the proceeds paid by solvent insurance companies on behalf of the third party tortfeasor and on behalf of the employer under the uninsured motorist provision of the employer’s policy, and (2) if section 71-3-71 applies, is the LGA or its uninsured motorist insurance carrier a third party within the meaning of the statute? Therefore, we discuss issues one and two as a single issue.

¶ 13. MIGA asserts that the exhaustion provision found in section 83-23-123 should control over section 71-3-71 of the Workers’ Compensation Act. Section 83-23-123(1) reads:

Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer, which is also a covered claim, shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this article shall be reduced by the amount of any recovery under such insurance policy.

Section 71-3-71 reads, in pertinent part:

The commencement of an action by an employee or his dependents (or legal representative) against a third party for damages by reason of the injury, or the adjustment of any such claim, shall not affect the right of the injured employee or his dependents (or legal representative) to recover compensation.... The employee or his dependents bringing suit against the third party must notify the employer or carrier within fifteen days of the filing of such suit.
An employer or compensation insurer who shall have paid compensation benefits under this chapter for the injury or death of the employee shall have the right to maintain an action at law against any other party responsible for such injury or death, in the name of such injured employee or his beneficiaries, or in the name of such employer or insurer, or any or all of them. If reasonable notice and opportunity to be represented in such action by counsel shall have been given to the compensation beneficiary, all claims of such compensation beneficiary shall be determined in such action, as well as the claim of the employer or insurer. If recovery shall be had against such other party, by suit or otherwise, the compensation beneficiary shall be entitled to any amount recovered over and above the amount that the employer and insurer shall have paid or are liable for in compensation or other benefits, after deducting the reasonable costs of collection.

Essentially, section 71-3-71 gives a carrier the right to intervene in a related lawsuit and also prevents a covered employee from gaining a “double” recovery if the employee receives benefits from a third party.

¶ 14. However, the ability of a workers’ compensation carrier to recover insurance proceeds has been limited by case law. Relevant to this case is the Mississippi Supreme Court’s holding in Cossitt, wherein the court found, in pertinent part, as follows:

Appellant Cossitt, who was an employee of Morrison Heights Baptist Church, contends that Shelby Mutual Insurance Company, the church’s workers’ compensation carrier, had no right to uninsured motorist benefits provided by Nationwide on the church bus, and, therefore, had no right to intervene in the interpleader suit and seek recovery from the uninsured motorist claim.
Cossitt argues that [section] 71-3-71 giving the employer a right of recovery against “any other party responsible for such injuries or death” is limited to the third party tortfeasor and does not extend to give a right of recovery against the employer’s uninsured motorist coverage carrier, and that Nationwide did not take the place of ... the actual tortfeasor....
The record does not reflect that either Cossitt or her employer’s carrier[,] Shelby[,] filed suit against tortfeasor Lester Davis or received anything from him and his carrier. Therefore, we must assume that no recovery was sought. Instead, Cossitt filed a direct action, i.e., third party claim, in the interpleader party suit against Nationwide. We are of the opinion that Shelby had no claim to the insured motorist benefits provided by the Nationwide policy, and that the lower court committed error in allowing Shelby to intervene and to permit its recovery of workers’ compensation benefits paid by it to Cossitt.

Cossitt, 551 So.2d at 885-87 (emphasis added) (overruled on other grounds). The explicit holding of Cossitt is that a workers’ compensation carrier has no claim to uninsured motorist benefits received by an injured employee.

¶ 15. Mississippi Code Annotated section 83 — 23—115(l)(b) (Rev.1999) states that: “[MIGA] shall ... [b]e deemed the insurer to the extent of its obligation on the covered claims and to such extent shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent.” (Emphasis added). As our supreme court has stated, MIGA “step[s] into the shoes” of an insolvent carrier. Miss. Ins. Guar. Ass’n v. MS Cas. Ins. Co., 947 So.2d 865, 869(¶ 7) (Miss.2006).

¶ 16. Because MIGA steps into the shoes of an insolvent carrier and is bound by the “rights, duties, and obligations of the insolvent insurer,” we find no error with the Commission’s finding that MIGA is not entitled to the sixty thousand dollars that Blakeney has received from the LHA’s uninsured motorist coverage. Under Cossitt, such recovery is explicitly forbidden. MIGA’s contentions that it should be bound only by the exhaustion provision of MIGAL are without merit. Nothing in the language of section 83-23-123(1) indicates that the exhaustion provision super-cedes any other law regarding a carrier’s right to recovery.

¶ 17. MIGA claims that section 83-23-123(1) and section 71-3-71 are “entirely different” statutes with “entirely different remedial purposes.” As such, MIGA claims that the two statutes should not be construed together. Essentially, MIGA claims that the broad language of section 83-23-123(1) should apply in every case in which MIGA becomes involved, regardless of what sort of claims are at issue and regardless of whether the insolvent carrier would have been entitled to a similar offset had it not become insolvent. MIGA claims that the doctrine of in pari materia, which means that “each section of the Code dealing with the same or similar subject matter must be read together so that the legislative intent can be determined,” does not apply in this case. James v. State, 731 So.2d 1135, 1138(¶ 11) (Miss.1999) (citing Miss. Pub. Serv. Comm’n v. Mun. Energy Agency of Miss., 463 So.2d 1056, 1058 (Miss.1985)). We disagree. In the context of workers’ compensation claims handled by MIGA, section 83-23-123(1) and section 71-3-71 deal with “similar subject matter” such that they must be considered together. We note that MIGA itself has argued before this Court that the provisions of section 71-3-71 should apply to MIGA’s benefit. Brewer, 922 So.2d at 810(¶ 7). MIGA provides no compelling reason for why the provisions of section 71-3-71 should apply to MIGA only when the section is to MIGA’s benefit, rather than its detriment.

¶ 18. MIGA also claims that section 83-23-123(1) should apply because “[t]he Guaranty Act and its exhaustion provisions are more specific and narrow than the broader Worker’s [sic] Compensation Law and its [section] 71-3-71.” MIGA claims that this is so because section 83-23-123(1) deals only with the “obligations of MIGA....” We decline to find that section 83-23-123(1) is any narrower or more specific than section 71-3-71. Section 83-23-123(1) contains a very broad exhaustion provision, which would apply in every case involving MIGA if we were to accept MIGA’s arguments. By contrast, section 71-3-71 discusses the specific rights of a workers’ compensation carrier to intervene in and receive the proceeds of an employee’s recovery from third party tortfeasors. MIGA’s contentions to the contrary are without merit.

¶ 19. MIGA submits multiple other arguments as to why it should receive a credit for the amount of uninsured motorist benefits that Blakeney has received. In addition to alleging that the workers’ compensation statutes should not apply to MIGA because of the provisions found in MIGAL, MIGA contends that it “has never sought to recover directly from Coregis the UM proceeds under the subrogation rights conferred by Miss. Code Ann. § 71-3-71. Instead, MIGA is seeking a credit against future benefits due to the claimant, by virtue of MIGA’s statutory rights under Miss.Code Ann. § 83-23-123(1).” We find no merit to this argument. Regardless of MIGA’s failure to seek recovery directly from Coregis, the ultimate question is whether MIGA is entitled to the amount that Blakeney received from solvent uninsured motorist coverage, provided by Coregis, as setoff against MIGA’s workers’ compensation obligations to Blakeney.

¶ 20. MIGA further cites this Court’s recent opinion in Leitch v. Mississippi Insurance Guaranty Ass’n, 2007-CA-01263-COA, 15 So.3d 426 (Miss.Ct.App. Feb. 24, 2009) as support for its position that it is entitled to an offset in the amount of Blakeney’s uninsured motorist insurance proceeds. However, we find that our holding in Leitch is distinguishable from the present case. Here, MIGA’s obligations to Blakeney arise from a workers’ compensation claim, which implicates workers’ compensation statutes and other law. In Leitch, however, MIGA’s obligation to the claimant arose in the context of automobile liability insurance. Id. at (2). It is the particular nature of workers’ compensation insurance that led to the Commission’s decision. If MIGA’s obligations to Blake-ney arose outside the context of a workers’ compensation commission, the result in this case would almost certainly be different. Furthermore, we note that the Mississippi Supreme Court has granted William Leitch’s request for certiorari. Leitch v. Miss. Ins. Guar. Ass’n, 15 So.3d 426 (Miss.2009). Therefore, we would be reluctant to treat Leitch as settled law carrying authoritative weight.

¶ 21. MIGA also cites and discusses a number of cases from other jurisdictions. We find that these cases are inapplicable, as there is sufficient Mississippi law, which we have already discussed, to support the Commission’s decision.

¶22. We find that the Commission’s decision is also consistent with the principle that workers’ compensation statutes should be construed liberally in favor of injured employees.

¶ 23. This contention of error is wholly without merit.

2. The Correct Amount of MIGA’s Credit

¶ 24. In this issue, MIGA contends that “it is in fact entitled to suspend benefits until the entire face amount of the one hundred thousand dollars in available benefits have accrued. One hundred thousand dollars is the total amount of solvent insurance benefits available to Ms. Blakeney (ten thousand dollars in benefits from the driver’s policy, plus ninety thousand dollars in UM benefits).”

¶ 25. This issue is moot, as MIGA is not entitled to a setoff for the uninsured motorist proceeds received by Blakeney. We affirm the Commission’s decision that MIGA is entitled to the ten thousand dollars from the Progressive policy, minus the attorney’s fees and costs that Blakeney expended in recovering that amount.

3. Reduction for Costs of Collection

¶ 26. In its final issue, MIGA contends that Blakeney is not entitled to reduce MIGA’s credit by the costs of collection. MIGA’s reasoning for this issue is the same as that discussed in issue one; that is, MIGA argues that the reduction provisions are found only in section 71-3-71 and not in section 83-23-123(1). As we have already stated, MIGA stepped into the shoes of Legion, the insolvent insurer. As such, it is bound by section 71-3-71. Therefore, we find no error with the Commission’s decision to reduce the amount of MIGA’s setoff by Blakeney’s collection expenses.

¶ 27. MIGA also briefly challenges the factual basis for the four thousand dollars in expenses claimed by Blakeney. We defer to the Commission’s factual findings on this issue, in the absence of more compelling evidence to the contrary in the record.

¶ 28. This contention of error is also without merit.

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

KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


author: BARNES, J.,

text:
    Charlotte MOORE, Appellant v. M & M LOGGING, INC., Appellee.
    No. 2008-CA-01519-COA.
    Court of Appeals of Mississippi.
    April 27, 2010.
    Rehearing Denied Sept. 14, 2010.
    Certiorari Denied Jan. 13, 2011.

      James C. Patton, Jr., Kosciusko, attorney for appellant.
    William Matthew Vines, attorney for ap-pellee.
    Before LEE, P.J., IRVING and BARNES, JJ.
   BARNES, J.,

for the Court:

¶ 1. Charlotte Moore appeals the circuit court’s grant of summary judgment in favor of M & M Logging, Inc. (M & M). Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. M & M is a logging company located in Weir, Mississippi. John Moore, Charlotte’s husband, is the co-owner and president of M & M. The company occasionally conducts some of its business in a garage located behind the Moores’ residence, which is also located in Weir. On December 29, 2003, John and two other M & M employees had been in the garage for approximately two hours attempting to mount and inflate a truck tire, a normal part of M & M’s business. Charlotte came into the garage to store Christmas decorations from the Moores’ personal residence. Searching for a storage box, Charlotte began to walk to the other side of the garage. She observed that a bubble was forming on the tire; however, before she could warn John, the tire burst and expelled a rush of air, causing Charlotte to fall backwards and sustain injuries.

¶ 3. On February 2, 2005, Charlotte filed a premises liability claim against M & M seeking damages. M & M, in its answer, denied any negligence on the part of the M & M employees. M & M filed a motion for summary judgment on February 1, 2007, claiming that Charlotte was a licensee; therefore, M & M’s only duty to her was to refrain from willfully or wantonly injuring her. To support its motion, M & M attached an affidavit by John, stating that he and the M & M employees had “followed standard and customary procedures for mounting and inflating tires” and that the M & M employees did not contribute to Charlotte’s accident. Charlotte filed a response to M & M’s motion, attaching a copy of her complaint. The motion for summary judgment was granted by the circuit court on February 27, 2008. Charlotte filed a motion to set aside the summary judgment on March 10, 2008, which the circuit court denied. Charlotte now appeals claiming that the circuit court erred in granting summary judgment for M&M.

I. Whether the circuit court erred in granting summary judgment based upon premises liability.

¶ 4. This Court conducts a de novo review of a circuit court’s grant of summary judgment. Riley v. F.A. Richard & Assocs., Inc., 16 So.3d 708, 715 (¶ 16) (Miss.Ct.App.2009) (citations omitted). If there exists no “genuine issue of material fact,” and the movant “is entitled to judgment as a matter of law,” then summary judgment should be granted in the party’s favor. Id. Under Mississippi Rule of Civil Procedure 56(e), the nonmovant “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [the] rule, must set forth specific facts showing that there is a genuine issue for trial.” Therefore, in order “[t]o withstand summary judgment, the party opposing the motion must present sufficient proof to establish each element of each claim ‘on which he would bear the burden of proof at trial.’ ” Riley, 16 So.3d at 716 (¶ 17) (quoting Galloway v. Travelers Ins. Co., 515 So.2d 678, 684 (Miss.1987)).

¶ 5. In a premises liability claim, “the duty owed ... by a property owner/occupier is dependent upon the status of the injured person at the time of the accident.” Gammel v. Tate County Sch. Dist., 995 So.2d 853, 858 (¶ 15) (Miss.Ct.App.2008) (citing Albert v. Scott’s Truck Plaza, Inc., 978 So.2d 1264, 1266 (¶7) (Miss.2008)). There is no factual dispute between the parties that Charlotte was a licensee. “A licensee is a person who ‘enters the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner[.]’” Nunez v. Spino, 14 So.3d 82, 84 (¶ 12) (Miss.Ct.App.2009) (quoting Thomas v. The Columbia Group, LLC., 969 So.2d 849, 852 (¶ 12) (Miss.2007)). The duty owed to a licensee by a landowner is “to refrain from willfully or wantonly injuring [him].” Otts v. Lynn, 955 So.2d 934, 940 (¶ 20) (Miss.Ct.App.2007) (quoting Massey v. Tingle, 867 So.2d 235, 239 (¶ 14) (Miss.2004)). However, there is an exception to the duty owed to a licensee in “that ordinary reasonable care is required where the landowner engages in active conduct and the plaintiffs presence is known to him.” Gibson v. Wright, 870 So.2d 1250, 1255 (¶ 13) (Miss.Ct.App.2004) (citation omitted).

¶ 6. The circuit court, in its granting of summary judgment, held that Charlotte failed to present “any significant probative evidence” that M & M was negligent. However, Charlotte claims on appeal that she showed through her complaint, M & M’s pleadings, her deposition, and John’s affidavit, that there was active conduct on the part of M & M. We find upon our de novo review of the record that the circuit court was correct in its holding. In her response to M & M’s motion for summary judgment, Charlotte neither included any sworn affidavit nor any other evidence to support her allegations. She merely provided a copy of her complaint. As we have already stated, once the party moving for summary judgment has made out a “prima facie case that it is entitled to judgment as a matter of law” by the production of “supporting depositions, answers to interrogatories, admissions on file, and affidavits .... the non-movant must respond if it is to defeat the motion and, thus, assumes its own burden of production.” Thomas v. Jones, 23 So.3d 575, 581 (¶ 25) (Miss.Ct.App.2009) (citations omitted). The non-movant “may not simply rest upon ‘mere allegations or denials’ raised in the pleadings.” Id. (citing Webster v. City of D’Iberville City Council, 6 So.3d 448, 450 (¶ 7) (Miss.Ct.App.2009)). Rather, “[t]he nonmovant ... bears the burden by affidavit or otherwise of setting forth ‘specific facts showing that there are indeed genuine issues for trial.’ ” Pride Oil Co. v. Tommy Brooks Oil Co., 761 So.2d 187, 191 (¶ 10) (Miss.2000) (quoting Fruchter v. Lynch Oil Co., 522 So.2d 195, 199 (Miss.1988)). Therefore, we find that Charlotte failed to support her allegations with any evidence that would raise a genuine issue of material fact.

1Í 7. In MST, Inc. v. Mississippi Chemical Corp., 610 So.2d 299, 304 (Miss.1992), the Mississippi Supreme Court held that, since the non-movant, MST, “presented no sworn evidence in opposition to the motion for summary judgment, the trial court correctly took as true the allegations in the affidavits provided by [Mississippi Chemical Corp.], as shown by its findings of fact and conclusions of law.” Similarly, in the present case, M & M supported its motion for summary judgment with sworn evidence demonstrating that there was no genuine issue of material fact that any of the M & M employees willfully or wantonly injured Charlotte, or that the M & M employees were actively negligent in their duties. Like MST, Charlotte did not present any evidence to support her opposition to M & M’s motion for summary judgment. Accordingly, as M & M showed that it was entitled to judgment as a matter of law, we find no error in the circuit court’s granting of the motion for summary judgment.

II. Whether the circuit court’s grant of summary judgment was warranted based solely upon John’s affidavit.

¶ 8. Charlotte argues that John’s affidavit in support of M & M’s motion for summary judgment was not sufficient as it was conclusory and self-serving. M & M claims that Charlotte waived her right to challenge the sufficiency of John’s affidavit as she neglected to file a motion to strike. If a nonmoving party in a summary judgment action “wishes to attack one or more of the affidavits upon which the motion is based, he must file in the trial court a motion to strike the affidavit.” Hare v. State, 733 So.2d 277, 285 (1130) (Miss.1999). The failure to do so “constitutes waiver of any objection to the affidavit.” Continental Ins. Co. v. Transamerica Rental Fin. Corp., 748 So.2d 725, 731 (¶ 26) (Miss.1999). Although Charlotte addressed the issue of the insufficiency of John’s affidavit in her response to the motion for summary judgment, at no time did she file a motion to strike John’s affidavit. Therefore, we agree that Charlotte waived her right to object on this basis.

¶ 9. Notwithstanding, we find John’s affidavit to be sufficient to support summary judgment for M & M. Under Rule 56(e), “supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matter stated therein.” Matthews v. Horseshoe Casino, 919 So.2d 278, 280 (¶ 8) (Miss.Ct.App.2005). However, “[a] conclusory, self-serving affidavit, unsupported by material facts relevant to the proposition at issue, is insufficient as a basis to grant summary judgment.” Dalton v. Cellular S., Inc., 20 So.3d 1227, 1233-34 (¶ 14) (Miss.2009).

¶ 10. John’s affidavit states specific and pertinent facts based upon his personal knowledge of the events that occurred surrounding Charlotte’s injury. His affidavit, states in pertinent part, that:

2. One of [M & M’s] standard business practices is to work on tires and rims in the shop on days where the weather will not permit logging operations.
6. Just prior to the incident in question, we had just gotten a tire properly sealed on its rim. At that point, I began to inflate the tire to the appropriate pressure.
9. On the day in question, each employee of M & M Logging followed standard and customary procedures for mounting and inflating tires.
10. In my experience working with tires, I have seen bubbles form in the sidewall of a tire. However, I have never seen a bubble in a tire cause an injury.
12. No employee of M & M Logging caused the bubble to form in the sidewall of the tire on the day in question or contributed in any way to the Plaintiffs accident.
13. No employee intended this accident. No employee of M & M Logging was guilty of willful or wanton conduct toward Charlotte Moore.

Although Charlotte attempts to argue that John was not in the garage for the entire two hours, the record shows that John was present in the garage prior to and during the occurrence of the injury. Further, while the affidavit does contain certain “eonclusory” or “self-serving” statements, it also supports these statements with facts, such as the tire was properly sealed on the rim, the tire was being inflated to the appropriate pressure, and that, while bubbles had been known to form in a sidewall of a tire, John had never seen such a bubble injure anyone. This latter point would be pertinent with respect to whether the actions John took, if he had noticed the bubble, were reasonable under the circumstances. Charlotte has offered no evidence to refute any of these facts. Accordingly, we find no error in the circuit court’s grant of M & M’s motion for summary judgment based upon John’s affidavit.

III. Whether the circuit court abused its discretion by not considering Charlotte’s affidavit attached to her motion to set aside the summary judgment.

¶ 11. Following the entry of summary judgment, Charlotte filed a motion to set aside the summary judgment pursuant to Mississippi Rule of Civil Procedure 59. We review the denial of a Rule 59 motion “under an abuse of discretion standard.” Brooks v. Roberts, 882 So.2d 229, 233 (¶ 15) (Miss.2004) (citation omitted).

¶ 12. The motion included a sworn affidavit by Charlotte, which described alleged admissions that John had made to her regarding the events surrounding her injury. Charlotte contends, on appeal, that the circuit court abused its discretion in failing to consider her affidavit in ruling on her motion. However, the record reflects that M & M contacted Charlotte, alleging that paragraph 6 of her sworn affidavit was patently false. Paragraph 6 stated: “Finally, John Moore has admitted to me that he added information to the affidavit which he sent to a representative of M & M Logging, and the affidavit filed by M & M Logging in support of its Motion for Summary Judgment does not contain such added information.” Charlotte agreed to withdraw paragraph 6 and filed a motion to withdraw the affidavit and to substitute another affidavit that did not contain the paragraph in question. The circuit court granted Charlotte’s motion to withdraw.

¶ 13. However, Charlotte failed to submit another sworn affidavit; rather, she merely attached an unsigned copy of the substitute affidavit that had been attached to her motion to withdraw. This Court has stated that “[a]n affidavit is ‘a voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths.’ ” Thomas v. Greenwood Leflore Hosp., 970 So.2d 273, 277 (¶ 19) (Miss.Ct.App.2007) (quoting Blacks Law Dictionary 58 (7th Edition 1999)). Thus, an affidavit which is not sworn “is merely a piece of paper with the word ‘affidavit’ as its title.” Id. Consequently, we find that the circuit court’s failure to consider Charlotte’s affidavit was not an abuse of discretion as the unsworn substitute affidavit was insufficient.

¶ 14. In her motion to set aside, Charlotte also contended that the summary judgment should be set aside pursuant to Mississippi Rule of Civil Procedure 60(b)(6) in order “to prevent manifest injustice.” “Rule 60(b)(6) states that relief may be granted from a final judgment for ‘any other reason justifying relief from judgment,’ which serves as a catch-all exception for relief when equity demands.” Pratt v. Pratt, 977 So.2d 386, 392 (¶ 17) (Miss.Ct.App.2007) (quoting M.R.C.P. 60(b)(6)). However, there must exist “exceptional or compelling reason to set aside a default judgment in the absence of the other enumerated reasons.” Am. States Ins. Co. v. Rogillio, 10 So.3d 463, 474 (¶ 29) (Miss.2009) (quoting Stanford v. Parker, 822 So.2d 886, 891 (¶ 22) (Miss.2002)). This Court has cautioned that “Rule 60(b) should not be used by litigants as ‘an escape hatch’ in cases where the movant has had ‘procedural opportunities afforded under other rules’ yet has failed to pursue said procedural remedies.” Welch v. Bank One Nat’l. Ass’n, 6 So.3d 435, 438 (¶ 11) (Miss.Ct.App.2009) (quoting City of Jackson v. Jackson Oaks Ltd. P’ship, 792 So.2d 983, 986 (¶ 5) (Miss.2001)).

¶ 15. Charlotte, in her response to M & M’s motion for summary judgment, failed to submit an affidavit in support of her claims. Further, Charlotte admitted that the sworn affidavit attached to her motion to set aside summary judgment contained alleged admissions made to her by John on the day of the accident; thus, this information was available and known to Charlotte when M & M’s motion for summary judgment was filed. As we have already noted, that affidavit was later withdrawn by Charlotte, and since her substitute affidavit was not sworn testimony, it was not admissible as evidence. Therefore, we find no abuse of discretion in the circuit court’s failure to consider Charlotte’s affidavit in its denial of the motion to set aside the summary judgment.

IV. Whether the circuit court’s denial of Charlotte’s motion to set aside the summary judgment resulted in manifest injustice.

¶ 16. In its order granting summary judgment, the circuit court ruled that Charlotte’s request was untimely filed according to Rule 3(b) of the Local Rules for the Fifth Circuit Court District. Rule 3(b) states that, if there is no scheduling order filed with the court, all discovery should be completed within ninety days of filing of the answer to the complaint. In her motion to set aside the summary judgment, Charlotte claims that the circuit court’s denial of her request for an order of continuance, pursuant Mississippi Rule of Civil Procedure 56(f), was an abuse of discretion; thus, she argues that the denial of her motion to set aside the judgment resulted in manifest injustice.

¶ 17. Rule 56(f) of the Mississippi Rules of Civil Procedure states that:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

“The grant or denial of a continuance under Rule 56(f) is a matter within the trial court’s sound discretion, and the court will only be reversed for an abuse of discretion.” Maxwell v. Baptist Mem’l Hosp.- DeSoto, Inc., 15 So.3d 427, 435 (¶ 20) (Miss.Ct.App.2008) (citing Stallworth v. Sanford, 921 So.2d 340, 342-43 (¶ 9) (Miss.2006)). A circuit court’s denial of a motion for continuance will only be reversed by this Court if it appears that the denial “resulted in manifest injustice.” APAC Miss., Inc. v. Johnson, 15 So.3d 465, 475 (¶ 21) (Miss.Ct.App.2009) (citing Jacobs v. State, 870 So.2d 1202, 1205 (¶ 7) (Miss.2004)).

¶ 18. However, “Rule 56(f) is not designed to protect litigants who are lazy or dilatory.” Stallworth, 921 So.2d at 343 (¶ 11). Charlotte attempts to argue that it was unjust for the circuit court to invoke Rule 3(b) as a penalty since M & M was equally “lazy or dilatory” in the filing of its motion for summary judgment. Thus, she claims that M & M’s motion for summary judgment, which was filed almost two years after the filing of her complaint, should have been denied. Yet, the record shows that there was discovery conducted by M & M, such as requests for Charlotte’s medical records; further, M & M submitted responses to Charlotte’s interrogatories months prior to filing its motion for summary judgment. We recognize that it was necessary for discovery to be conducted cautiously due to the relationship between Charlotte and her husband’s company in order to avoid the appearance of collusion. Nevertheless, we cannot ignore the fact that almost two years passed between the filing of Charlotte’s complaint and the filing of M & M’s motion for summary judgment, affording both parties ample time in which to conduct discovery in this case. Also, any information that Charlotte sought to “discover” was largely available to her immediately after the injury occurred.

¶ 19. Accordingly, we find no abuse of discretion in the circuit court’s denial of Charlotte’s motion to set aside the summary judgment.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS AND MAXWELL, JJ„ CONCUR.

      . Mississippi Rule of Civil Procedure 59(b) states that all post-trial motions must be filed ten days after the entry of judgment. We note that, in the present case, the tenth day after the entry of summary judgment occurred on a weekend; thus, March 10 was the first business day after this deadline.