text:
    Helen BABIN v. PLANET BEACH TANNING SALONS, INC. Helen Babin v. Planet Beach Tanning Salons, Inc.
    Nos. 2010-CA-0862, 2010-C-0736.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 15, 2010.

      James E. Moore, Jr., Carlton Dunlap Olinde Moore & Bohman, L.L.C., Baton Rouge, LA, for Sybaritic, Inc.
    Stephen N. Elliott, Caroline D. Elliott, Jeanne M. Mauldin, David M. McDonald, Bernard Cassisa Elliott & Davis, APLC, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|, The third-party plaintiff/appellant, Planet Beach Tanning Salons, Inc. (“Planet Beach”), appeals to this Court a granting of summary judgment in favor of Sybaritic, Inc. (“Sybaritic”), defendant in Planet Beach’s third party claim. Planet Beach also appeals the denial of their motion for summary judgment, which was denied in concert with the granting of Sybaritic, Inc.’s motion for summary judgment. For the reasons provided below, we affirm the judgment of the trial court granting summary judgement to Sybaritic, Inc. and consequently denying Planet Beach’s summary judgment motion.

Factual and Procedural History

On January 26, 2007, Helen Babin, plaintiff in the original demand, was injured while entering a “Hydration Station” tanning machine at the Planet Beach tanning salon located at 5300 Tchoupitoulas Street in uptown New Orleans. Ms. Babin filed suit against Planet Beach on February 26, 2007. Planet Beach was served with the petition on March 2, 2007, and Planet Beach answered Ms. Babin’s petition on May 2, 2007. Following initial discovery and the depositions of Ms. |2Babin and her expert engineer, Mr. Andrew Lawyer, Planet Beach filed a third-party demand against Sybaritic, which manufactured the “Hydration Station” machine in which Ms. Babin had fallen from. Sybaritic filed several exceptions in response to Planet Beach’s third party demand, including an exception of prescription. The exception of prescription was the subject of a prior appeal before this Court in this matter.

Ms. Babin’s primary demand against Planet Beach went to trial before a jury while the Court considered Planet Beach’s appeal of the district court’s granting of an exception of prescription filed by Sybaritic. In this prior appeal, the Court described the jury’s finding of negligence against Planet Beach, and Planet Beach’s third party demand against Sybaritic, as follows:

While this matter was pending on appeal, the main demand was tried. The jury found that Planet Beach was negligent in preparing the equipment for Ba-bin and negligent in the training of its employees to prepare the machine. Planet Beach alleges that it prepared the hydration station and trained its employees to prepare the machine in accordance with the instructions and procedures provided by Sybaritic. Planet Beach contends that its fault is the direct result of Sybaritic failing to warn it that (1) the use of the hydration state bed when wet increases the risk of a person slipping out of the bed; (2) a possibility exists of an ejection of a user by pulling the canopy down that may have more resistance than usual when the surface is moist; and (3) potential problems exist that the user may encounter under conditions similar to the plaintiffs accident. Planet Beach also argues that Sybaritic, or companies representing Sybaritic, performed all repairs on the hydration station.
The sole issue for our consideration is whether the third-party demand filed by Planet Beach against Sybaritic has prescribed. Planet Beach contends that it has not because a claim for indemnification does not accrue until the party seeking indemnity has been cast in judgment.

Babin v. Planet Beach Tanning Salons, Inc., 2008-1350, p. 2 (La.App. 4 Cir. 3/25/09), 8 So.3d 780, 782. The Court agreed with Planet Beach’s assertion, and reversed the granting of Sybaritic’s exception of prescription:

... the third-party demand filed by Planet Beach against Sybaritic alleges that the plaintiffs injuries were caused solely by the negligence of Sybaritic and seeks indemnification for all damages and costs Planet Beach may later have to pay. The underlying action was tried on or about 8 December 2008, wherein Planet Beach was found at fault for the plaintiffs injuries. Therefore, its cause of action for indemnity did not begin to run until the judgment was entered against it. Therefore, the trial court erred in granting Sybaritic’s exception on the issue of indemnity.

Id., p. 7, 8 So.3d at 785. The Court also held that “[t]o the extent that Planet Beach seeks contribution from Sybaritic, that claim is prescribed.” Id.

Following remand of the matter back to the district court, on March 1, 2010, Sybaritic filed a motion for summary judgment, seeking the dismissal of all claims by Planet Beach against it. In turn, Planet Beach filed its own motion for summary judgment on April 7, 2010, asking the district court to find judgment as a matter of law that Sybaritic owes complete indemnification to it as a result of the jury verdict against it from Ms. Babin’s primary demand. The district court heard both contradicting motions on April 23, 2010, and granted Sybaritic’s motion for summary judgment, dismissing Planet Beach’s third-party demand indemnity claim against it. A written judgment granting Sybaritic’s motion for summary judgment and in turn denying Planet Beach’s motion for summary judgment was signed on May 19, 2010. Planet Beach now appeals the district court’s judgment to this Court.

Summary Judgment Standard

14Appellate courts review motions for summary judgment de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Wood v. Del Giorno, WWL AM, et al, 2006-1612, p. 3 (La.App. 4 Cir. 12/19/07), 974 So.2d 95, 98. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966(B). The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La.Code Civ. Proc. art. 966(C)(2).

Because the movant has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. Istre v. Meche, 2005-2508, p. 6 (La.6/16/06), 931 So.2d 361, 364. Summary judgment is favored under our law and shall be construed to secure the just, speedy, and inexpensive determination of every action.

Law and Analysis

In Nassif v. Sunrise Homes, Inc., 98-3193, pp. 2-4, 739 So.2d 183 (La.6/29/99), the Louisiana Supreme Court discussed the action for indemnity:

| ^Indemnity in its most basic sense means reimbursement, and may lie when one party discharges a liability which another rightfully should have assumed. Black’s Law Dictionary 769 (6th ed.1990); 12 C.J.S Indemnity § 2 (1991). It is based on the principle that everyone is responsible for his own wrongdoing, and if another person has been compelled to pay a judgment which ought to have been paid by the wrongdoer, then the loss should be shifted to the party whose negligence or tortious act caused the loss. 42 C.J.S. Indemnity at § 32 ...
... Thus, because the party seeking indemnification must be without fault, a weighing of the relative fault of tortfea-sors has no place in the concept of indemnity.

Hesse v. Champ Service Line, 2002-0284, pp. 3-4 (La.App. 3 Cir. 10/2/02), 828 So.2d 687, 689-90. This Court described indemnity, in the previous appeal of this case, as follows:

In general,
[/Indemnity is due when fairness requires that one person bear the total responsibility for an injury ... One who is himself at fault, however, is not due indemnity because liability for indemnity exists only when the party seeking indemnity, the indemnitee, is free of fault and has discharged a debt that should be paid wholly by the indemnitor.

Babin v. Planet Beach Tanning Salons, Inc., pp. 3-4, 8 So.3d at 783; quoting Diggs v. Hood, 772 F.2d 190, 193 (5th Cir.1985) (citations omitted).

“Indemnity, in its most basic sense, is due when fairness requires that one person bear the total responsibility for an injury or loss.” Hai Nam Chinese Restaurant Partnership v. B & B Construction of New Iberia, 2006-729, p. 13 (La.App. 3 Cir. 11/2/06), 942 So.2d 97, 105-6. “Indemnity shifts the entire loss from a tort-feasor only technically or constructively at fault to one primarily responsible for the act that caused the damage.” Green v. TACA International Airlines, 304 So.2d 357, 359 (La.1974).

In the matter sub judice, Planet Beach, in its position as third-party plaintiff, argues that the district court erred in granting Sybaritic’s motion for summary | ¿judgment, and incorrectly ruled against its favor by also denying its own motion for summary judgment. In its motion for summary judgment, Sybaritic alleged that prior to the trial of Ms. Babin’s main demand before the jury, Planet Beach filed a request for special jury interrogatories asking that the jury consider the possible negligence of Sybaritic, Inc., and at what percentage of fault Sybaritic, Inc. would have proximately caused Ms. Babin’s accident. Planet Beach also asked the district court to consider jury charges concerning manufacturer liability, and in particular the failure to warn. Sybaritic stated that the district court, after seeing no evidence presented at trial that would prove manufacturer fault, refused to provide any jury instructions or jury charges regarding liability against Sybaritic.

Sybaritic primarily argued that under Louisiana law, after having been found personally negligent for Ms. Babin’s accident, Planet Beach cannot be considered free from fault, and thus cannot, as a matter of law, prove its third-party demand claim for indemnification. Sybaritic noted this Court’s prior decision in this very case, confirming that any claim Planet Beach has for contribution has prescribed. Sybaritic also contends that Planet Beach’s argument that alleged excessive resistance of the hydration machine’s canopy hood does not shift the entirety of fault from Planet Beach.

Sybaritic argues that ample testimony existed at trial to show that Planet Beach itself was negligent in the actions of its employees and negligent in its training of employees on administering and managing the hydration station. Sybaritic included in its evidentiary support for summary judgment the completed jury verdict from the trial of the main demand:

1. Do you find that any of defendant Planet Beach Tanning Salons, Inc.’s employees were negligent with regard to this accident? — answered “Yes”
|72. Was the negligence of any Planet Beach employees a legal cause of this accident? — answered “Yes”
3. Do you find that Planet Beach was negligent with regard to the training and/or supervising of any of its employees? — answered “Yes”
4. Was Planet Beach’s negligence in training and/or supervising of any of its employees a legal cause of this accident? — answered “Yes”

Planet Beach argues that the jury was chiefly swayed by the expert testimony of Mr. Andrew Lawyer, Ms. Babin’s expert, who testified at trial that

“[fit was my opinion or the opinion that I reached was the combined forces of her trying to pull the canopy bed down combined with the slipperiness of that surface worked together to cause her to fall out of this unit and it would have been a situation where she possibly could not have seen or foreseen herself.”

Planet Beach further argues that at no time did Sybaritic, when a Sybaritic corporate representative appeared in New Orleans for training on preparation, cleaning, and maintaining of the hydration machine, ever inform or warn Planet Beach that a dangerous condition could exist if the machine bed is wet or moist. Planet Beach argues that their employees implemented the same procedures shown by Sybaritic’s corporate representatives. Planet Beach finally argues that it has the right to pursue a products liability — failure to warn claim against Sybaritic.

Upon de novo review of the complete appellate record, which includes ample testimony from the trial of the main demand, we find that Sybaritic, Inc. is entitled to summary judgment and the dismissal of Planet Beach’s sole remaining indemnity claim against it. There is no genuine of issue of material fact that Planet Beach is at least partially at fault for the underlying accident and damages to Ms. Babin. Essentially, Planet Beach cannot prove a claim for indemnity against |8Sybaritic, which would require Sybaritic, Inc. to be 100% at fault for Ms. Babin’s accident. Therefore, Sybaritic, Inc. is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966(C).

First of all, Planet Beach’s own expert at the trial of the main demand, Mr. Leonard Quick, saw “no defective condition in the unit” (hydration machine) which could have possibly caused the accident. Furthermore, Planet Beach’s reliance on Ms. Babin’s expert testimony is without merit, since Mr. Lawyer testified at length about the “wet slippery surface that was created by the young lady, Ms. Nicole Colon,” who was working for Planet Beach when the accident occurred. Mr. Lawyer also testified that the hydration machine “in and of itself did not cause this accident or her fall.” Furthermore, the statement of Mr. Lawyer relied upon by Planet Beach in this appeal, provided above, itself attributes “the slipperiness of that surface” as a significant contributing factor to Ms. Ba-bin’s fall and injury.

Most tellingly, Ms. Jody Mateu, Planet Beach’s corporate representative, also testified that after a Planet Beach employee is to disinfect the station by applying a sanitizer solution, the next required step is to take bath towels and “wipe it down and drape the towels” over the bed. She testified that if the sanitizing solution used on the hydration machine’s bed was not wiped off, it would certainly be a safety concern.

Ms. Mateu also testified that Ms. Colon, who at age 15 was the youngest employee working at Planet Beach on the day of the accident, did not complete the required Planet Beach University Online certification course or “Smart Tan Certification” course by the time the accident occurred. Ms. Mateu further testified that a second employee, Tiara Peterson, who was 17 at the time of the |flaccident, received a mere run-through on how to operate the hydration station machine. Finally, none of the Planet Beach employees present on the day of Ms. Babin’s accident recalled seeing a “Room Turnover Checklist”, which is a checklist provided by Sybaritic to Planet Beach locations with instructions on preparing and operating the hydration station machine. It was established at trial that this checklist included drying off the sanitizer solution.

Conclusion

In the present appeal, we find that there is ample factual testimony established at trial finding Planet Beach at fault for the negligence of its own employees and for its negligence in failing to properly train its employees in the manner expected by Sybaritic, Inc. Though common sense alone would require Planet Beach employees to wipe the machine dry, it was proved at trial that Sybaritic’s own instructive materials required wiping down the machine. Planet Beach’s own negligence was sufficiently proved at the trial of the main demand, as evidenced by the jury’s clear findings. Sybaritic, who would not bear the burden of proof at trial, has successfully pointed out an absence of factual support for Planet Beach’s claim for indemnity. Because the sole remaining claim in Planet Beach’s third-party action against Sybaritic is for indemnity, there is no error in the district court’s dismissal of Planet Beach’s third party demand. Babin v. Planet Beach Tanning Salons, Inc., supra, p. 7, 8 So.3d at 785.

In the present matter, it is clear that, in the negligent actions of its employees and negligent training of its employees, Planet Beach is not “free of fault.” Diggs v. Hood, 772 F.2d 190, 193 (5th Cir.1985) (citations omitted). The district court, therefore, did not err in finding judgment in favor of Sybaritic, Inc. as a matter of law and in dismissing Planet Beach’s third party claim for indemnity.

| ^Decree

The judgment of the district court in granting the motion for summary judgment filed by Sybaritic, Inc., is affirmed. Consequently, the judgment of the district court denying Planet Beach’s motion for summary judgment is also affirmed.

AFFIRMED.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of B.A. State of Louisiana in the Interest of B.A.
    Nos. 2010-CA-0896, 2010-CA-0897.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 15, 2010.

      Peter Hamilton, III, Hamilton Law Associates, LLC, New Orleans, LA, for B.A., Sr.
    Tony Dooley, Shorty Dooley & Hall, L.L.C., New Orleans, LA, For Jacquelyn Griffin, Randy Griffin, Tina Rauls & Frederick L. Rauls.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

LThe biological father appeals the juvenile court’s judgment granting the intra-family adoption of his two minor children to the petitioners. He asserts that the trial court erred by denying his motion in opposition to the intrafamily adoption and failing to establish that the adoption was in the best interest of the children. We find that the juvenile court judge erred; therefore, we reverse and remand.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

BJA, Sr. was married to AJ, the biological mother of the children, BJA, Jr. and BBA, in February 2004. On November 11, 2004, BJA, Jr. was born. Less than a year later, their second child, BBA, was born on September 17, 2005. The couple separated in May 2007, and obtained a divorce on December 5, 2008. Pursuant to the divorce judgment, BJA, Sr. and AJ were awarded joint custody. AJ was named the domiciliary parent of the two minor children, subject to the exercise of reasonable visitation by BJA, Sr.

Following the parent’s separation in 2007, BJA, Sr. made few attempts to maintain contact with his children and provided little financial support to the children. The last time BJA, Sr. saw his children was in September 2008, during 12Hurricane Gustav whereupon BJA, Sr. picked up his children and kept them for one night. The following month, AJ placed BBA in the physical custody of her first cousins, who resided in Kansas. In November 2008, AJ placed BJA, Jr. in the physical custody of another one of her first cousins, Mr. and Mrs. RG, who resided in Ohio. AJ did not notify BJA, Sr. that the children were being placed in the physical custody of her cousins outside the State of Louisiana. BBA and BJA, Jr. have resided with the Mr. and Mrs. FR and Mr. and Mrs. RG since October and November 2008, respectively.

On January 26, 2010, Mr. and Mrs. FR filed a petition for the intrafamily adoption of BBA while Mr. and Mrs. RG filed a petition for the intrafamily adoption of BJA, Jr. At the time of the filing of the petitions for the intrafamily adoptions, AJ signed an authentic act of consent to the adoption of her two children. BJA, Sr. received notice of the adoptions on February 25, 2010. On April 22, 2010, BJA, Sr. filed a motion and order in opposition to the adoption of BJA, Jr. and BBA.

Following a hearing on May 11, 2010, the juvenile court judge entered a judgment denying the opposition to the adoptions of BJA, Jr. and BBA. The juvenile court judge found that BJA, Sr.’s consent was not required for the adoptions due in part to his failure to provide financial support for the children and the fact that he had not seen the children since September of 2008. The juvenile court judge also questioned BJA, Sr.’s credibility due to impeachment of a portion of his testimony. However, the juvenile court did not evaluate whether the adoption of BJA, Jr. and BBA was in the best interest of the children. BJA, Sr.’s appeal followed.

hINTRAFAMILY ADOPTION

BJA, Sr. contends the juvenile court judge erred by ruling against his motion in opposition to the intrafamily adoption of BBA and BJA, Jr., in finding that the intrafamily adoption was in the best interest of BBA and BJA, Jr., and that the petitioners failed to prove that granting the adoptions would be in the best interests of BBA and BJA, Jr.

STANDARD OF REVIEW

“An appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearing wrong.” In re State ex rel. W.M.O., 04-2025, p. 2 (La.App. 4 Cir. 6/1/05), 905 So.2d 1164, 1166.

“Even upon a decision that a parent has lost his right to consent, the adoption should only be granted when it is also found to be in the best interest of the child.” In re Intrafamily Adoption of L.M.C., 09-885, p. 6 (La.App. 5 Cir. 3/23/10), 39 So.3d 643, 647. “The determination of whether an adoption is in the best interest of the child must be decided on the facts of each case and is subject to the vast discretion of the trial judge.” Id. This discretion is not absolute and upon review, “a determination of the best interest is subject to reversal only if the record reveals manifest error.” Id.

WAIVER OF CONSENT

BJA, Sr. asserts that trial court erred in finding that he did not have just cause for failing to maintain contact with his children and failing to provide financial support.

Under La. Ch.C. art. 1243, a cousin within the twelfth degree is authorized to petition the court for an intrafamily adoption. Thus, the petitioners, as the first cousins of the mother, are proper parties to petition the court. Generally, a parent’s | .¡consent is required for an intrafamily adoption. However, La. Ch.C. art. 1245 B(2) provides that the consent of a parent is not required

[wjhen a petitioner authorized by La. Ch.C. Art. 1243 has been granted custody of the child by a court of competent jurisdiction and any one of the following conditions exists:
(2) The parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

Further, La. Ch.C. art. 1255(A) provides that:

[t]he court, after hearing and after taking into consideration information from all sources concerning the intrafamily adoption, may enter a final decree of adoption, or it may deny the adoption. The basic consideration shall be the best interest of the child.

In intrafamily adoptions, the trial court must first determine whether a parent’s rights should be terminated. Then the juvenile court judge must consider whether the adoption is in the best interest of the child. State ex rel. K.G., 02-2886, p. 5 (La.3/18/03), 841 So.2d 759, 763. In in-trafamily adoptions, the petitioner must prove the grounds for termination by clear and convincing evidence. La. Ch.C. art. 1035.

We find that the record supports by clear and convincing evidence that the father failed to communicate, or attempt to communicate with the children without just cause for a period of at least six months. See La. Ch.C. art. 1245(B). BJA, Sr. testified that he was unable to locate his children because he did not know AJ’s address or telephone number. However, in AJ’s testimony, she stated that BJA, Sr. knew her address and had visited the residence once. She also testified that she has had the same phone number for over a year, that BJA, Sr. had her number, and that | Sshe spoke with him on that phone.

BJA, Sr. testified that he attempted to seek legal aid from a pro bono law agency in order to locate AJ. However, he did not provide the agency with a copy of his divorce judgment nor did he tell the agency he had a divorce proceeding in Orleans Parish.

AJ testified that she had three different addresses in the past three years and failed to provide notice to BJA, Sr. each time she moved. However, BJA, Sr. could have sought legal action as a result of not being able to maintain contact with AJ and his children. He presented no credible evidence to consider his contact with the pro bono law agency a “failed attempt” to locate his children.

“If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” In re D.B.C. Applying for Adoption of D.M.B., 00-2427, p. 5 (La.App. 1 Cir. 2/16/01), 808 So.2d 449, 453. “Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given ‘great deference’ by the appellate court.” Id. quoting Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). “Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel that its own evaluations and inference are reasonable.” In re D.B.C., 00-2427, p. 5, 808 So.2d at 453.

The juvenile court judge’s factual findings in the present case are based largely on credibility determinations. In its reasons for judgment, the juvenile |ficourt judge listed specific instances where BJA, Sr.’s testimony was not credible. We have thoroughly reviewed the record and find that there was no abuse of discretion and a reasonable basis exists for the trial court’s finding that BJA, Sr.’s consent was unnecessary to the adoption proceedings.

BEST INTEREST OF THE CHILD

“The primary consideration in adoption proceedings is whether the adoption is in the best interest of the child.” State v. A.S.K., 00-0636, p. 10 (La.App. 4 Cir. 12/6/00), 775 So.2d 1101, 1106. “Even though a parent may have lost his right for consent to be required for the adoption, the adoption should only be granted if it is in the best interest of the child.” In re Leitch, 32,021, p. 4 (La.App. 2 Cir. 3/31/99), 732 So.2d 632, 635. “The party petitioning the court for adoption carries the burden of proving a parent’s consent is not required under the law and that the adoption is in the best interest of the child.” In re Farrar, 93-1347, p. 3 (La.App. 3 Cir. 4/6/94), 635 So.2d 674, 675-76.

“Louisiana courts have historically been reluctant to sever the parent-child relationship and derogate from the natural rights inherent therein.” In re W.E.B., 07-1395, p. 4 (La.App. 4 Cir. 3/05/08), 980 So.2d 123, 126. “[T]he jurisprudence recognizes the fundamental belief that a child has a right to know and love his parents and such rights should not be denied except when the parent has proven himself unworthy of this love.” Id.

“In determining the best interest, the court needs to take into consideration that the legal consequences of adoption are abrupt, severe, and irrevocable: the relationship between the child and natural parent are severed.” In re Leitch, 32,021, p. 4, 732 So.2d at 635. “In making the determination, it is not enough to look at the love and home environment provided” by the adoptive parents. Id. \ 7“The court should also consider the depth and closeness of the children’s ties with the noncustodial, natural parent and the effect the loss of this relationship would have on the child.” Id.

Furthermore, this court has held that

[i]n the absence of unusual circumstances, established in the record, a court may not award child custody to a grandparent instead of a fit parent and a court may not further break up a family and deprive the children of one another’s comfort and moral support by unnecessarily separating the children from one another.

Larkin v. Larkin, 386 So.2d 376, 377 (La.App. 4th Cir.1980).

The parties in the present case introduced insufficient evidence for the trial court to property consider “(1) the respective fitness of the noncustodial natural parent and the petitioning” adoptive parents, (2) the children’s psychological ties to each other, and (3) the natural father’s “biological tie to the children.” In re C.B., 94-0755, p. 9 (La.10/17/94), 643 So.2d 1251, 1256. The record contains no evidence of the nature of the children’s relationship with their adoptive parents; likewise, there is little evidence pertaining to the relations between the children and their biological father.

“[W]hen severing the natural bond between the parent and the child, the court’s judgment must reflect a careful balancing of the importance of all interests, including the importance of the bond between the natural parent and the child.” In re Leitch, 32,021, p. 5, 732 So.2d at 636.

While the petitioners met their burden of proving that BJA, Sr.’s consent was unnecessary, they failed to meet their burden of showing that the adoption was in the best interest of the children. Based on our review of the record, none of the petitioners offered evidence demonstrating that the adoption was in the best | ^interest of the children. The petitioners made no indication of the type of relationship they shared with the children, what type of schools the children attended, and whether or not the children appear to be happy and stable. Further, we find that the best interest of the children, the paramount consideration in an adoption, was not adequately taken into consideration by the trial court. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

DECREE

For the above mentioned reasons, we reverse and remand the case to the trial court for the parties to present evidence pertaining to the best interest of the children.

REVERSED AND REMANDED

      . In accordance with Uniform Rules-Courts of Appeal, Rule 5-1 and 5-2, initials are used throughout this opinion to protect the identity of the minors.

      . La. Ch.C. art. 1255(B) does not include cousins of the parent. Thus, we do not apply the rebuttable presumption that the adoption is in the best interest of the child.


author: CARLSON, Presiding Justice, PIERCE, Justice, KITCHENS, Justice,

text:
    Marguerite B. HOLDER and Herbert Holder v. ORANGE GROVE MEDICAL SPECIALTIES, P.A., and Boyd Benefield, M.D.
    No. 2008-CT-01442-SCT.
    Supreme Court of Mississippi.
    Dec. 9, 2010.
    Rehearing Denied March 3, 2011.

      L. Christopher Breard, attorney for appellants.
    Stephen Giles Peresich, Biloxi, Johanna Malbrough McMullan, Jackson, Brian Douglas Mayo, attorneys for appellees.
   ON WRIT OF CERTIORARI

CARLSON, Presiding Justice,

for the Court:

¶ 1. Marguerite Holder and her husband, Herbert Holder (the Holders), filed a medical-negligence suit against Orange Grove Medical Specialties, P.A.; Boyd Benefield, M.D.; and John Does One through Five (Orange Grove) on December 7, 2006, in the Circuit Court for the First Judicial District of Harrison County. On July 29, 2008, almost one year and eight months later, the circuit judge dismissed the suit with prejudice, as to each defendant, for want of prosecution in accordance with Mississippi Rule of Civil Procedure 41(b). The Holders appealed the dismissal, and the Court of Appeals reversed the circuit court, holding that the circuit judge should have imposed a lesser sanction. Holder v. Orange Grove Med. Specialties, P.A., 54 So.3d 244 (Miss.Ct.App.2010), reh’g denied (May 18, 2010). Orange Grove petitioned this Court for writ of certiorari, which we granted. Holder v. Orange Grove Med. Specialties, P.A., 39 So.3d 5 (Miss.2010). Finding error in the Court of Appeals’ judgment reversing the trial court’s Rule 41(b) dismissal, we reverse the decision of the Court of Appeals and reinstate and affirm the judgment of the Circuit Court for the First Judicial District of Harrison County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. The following history, in large part, is taken from the facts and trial-court proceedings as set out in the opinion of the Court of Appeals.

¶ 3. On September 21, 2004, Marguerite was admitted to Garden Park Medical Center after having been diagnosed with a new onset of atrial fibrillation. She was discharged from Garden Park on or about September 26, 2004, by Dr. Benefield and placed on the blood-thinning medication, Coumadin.

¶ 4. According to the complaint, blood tests taken on October 6, 2004, indicated that her Coumadin levels were therapeutically too high for her condition and placed her at a greater risk for a stroke. No change in her therapy was ordered, but a follow-up appointment was made for October 13, 2004. Also, an appointment had been scheduled with Dr. Shah, Marguerite’s cardiologist, who apparently had been called in as a consultant by Dr. Benefield when Marguerite was in the hospital.

¶ 5. The plaintiffs alleged that when Marguerite arrived for her appointment at Orange Grove on October 18, she was told by an unnamed employee, who was a nurse at [the] clinic, that additional blood work would not be necessary because it had been performed the week before. Marguerite did not see the doctor that day, and no adjustments were made to her Coumadin dosage. The following day, on October 14, 2004, Marguerite suffered a hemorrhagic stroke.

¶ 6. The plaintiffs filed their complaint on December 7, 2006, more than two years after Marguerite had suffered her stroke. The defendants filed a motion for enlargement of time in which to file an answer, which was granted on January 8, 2007. The defendants timely filed their answer and defenses to the plaintiffs’ complaint on February 12, 2007. Along with that motion, the defendants filed a motion to compel waiver of medical privileges, which included their “First Set of Interrogatories and Requests for Production of Documents to the Plaintiffs.”

¶ 7. On March 8, 2007, plaintiffs’ counsel sent correspondence to defendants’ counsel advising that he was in trial on another matter “for the next couple of days” and would not be able to complete discovery until that trial was concluded.

¶ 8. On May 4, 2007, defendants’ counsel sent correspondence to plaintiffs’ counsel inquiring when responses to the defendants’ discovery requests would be completed. On May 22, 2007, plaintiffs’ counsel provided the defendants with an “Authorization to Disclose, Release and Furnish Protected Health Information.”

¶ 9. On May 24, 2007, defendants’ counsel refaxed his May 4 inquiry about completion of discovery to plaintiffs’ counsel, and did so again on June 4, 2007. According to the defendants, each request was ignored.

¶ 10. Approximately one year later, on May 5, 2008, plaintiffs’ counsel sent a letter to defendants’ counsel requesting to take Dr. Benefield’s deposition. Two days later, while still not having answered the defendants’ discovery, plaintiffs’ counsel filed interrogatories and requests for production of documents. On May 9, 2008, the defendants filed a motion to dismiss for failure to prosecute, citing in part the plaintiffs’ failure to answer discovery.

¶ 11. On May 22, 2008, the plaintiffs filed answers to the interrogatories and requests for production of documents which had been propounded by the defendants on February 12, 2007, more than fifteen months earlier, along with a motion to compel the deposition of defendant, Dr. Benefield. The defendants responded on June 10, 2008, by filing a motion seeking to strike the plaintiffs' motion to compel Dr. Benefield’s deposition. On July 24, 2008, the plaintiffs filed their response to the defendants’ motion to dismiss for failure to prosecute.

¶ 12. The defendants’ motion to dismiss came before the Circuit Court of Harrison County on July 25, 2008. After a hearing on the matter, the trial court ordered the case dismissed with prejudice, holding:

I feel like that the delays in responding to discovery and not pursuing the case as it should have been for this period of time is certainly sufficient for the Court to deem that the case was not pursued properly; that it should be dismissed for failure to prosecute the case.

¶ 13. Upon request from plaintiffs’ counsel that a statement of findings of fact and conclusions of law be made by the court, the trial judge stated: “I’m not going to make a finding of fact and conclusion of law any further than adopting the argument of counsel for the defendant, the cases that he has cited as to the basis for the dismissal [sic]. And the record speaks for itself. That’s it.” Holder, 54 So.3d at 246-48, ¶¶ 2-12.

PROCEEDINGS IN THE COURT OF APPEALS

¶ 14. Before the Court of Appeals, the Holders asserted that the trial court had abused its discretion in dismissing the case for want of prosecution. The Court of Appeals thoroughly addressed the issue and reversed the trial court, finding that there was no actual or presumptive prejudice to the defendants and that no aggravating factors were present. Holder, 54 So.3d at 252, ¶ 41.

DISCUSSION

¶ 15. On July 29, 2010, we granted the defendants’ petition for writ of certiorari. Holder v. Orange Grove Med. Specialties, 39 So.3d 5 (Miss.2010).

¶ 16. We employ an abuse-of-discretion standard when reviewing a trial court’s dismissal for failure to prosecute pursuant to Rule 41(b). Am. Tel. & Tel. v. Days Inn of Winona, 720 So.2d 178, 180 (Miss.1998) (citing Wallace v. Jones, 572 So.2d 371, 375 (Miss.1990)). “Because the law favors a trial of the issues on the merits, a dismissal for lack of prosecution is employed reluctantly.” Miss. Dep’t of Human Servs. v. Guidry, 830 So.2d 628, 632 (Miss.2002) (citing Am. Tel. & Tel., 720 So.2d at 180; Watson v. Lillard, 493 So.2d 1277, 1278 (Miss.1986)).

¶ 17. Mississippi Rule of Civil Procedure 41(b) permits defendants to move for dismissal of any action “[f]or failure of the plaintiff to prosecute.... ” Miss. R. Civ. P. 41(b). “Rule 41(b) embodies the tenet that ‘any court of law or equity may exercise the power to dismiss for want of prosecution. This power, inherent to the courts, is necessary as a means to the orderly expedition of justice and the court’s control of its own docket.’ ” Hillman v. Weatherly, 14 So.3d 721, 726 (Miss.2009) (citing Cucos, Inc. v. McDaniel, 938 So.2d 238, 240 (Miss.2006)) (citing Walker v. Parnell, 566 So.2d 1213, 1216 (Miss.1990)) (quoting Watson, 493 So.2d at 1278). Motions for failure to prosecute are considered on a case-by-case basis. Id. (citing Am. Tel. & Tel., 720 So.2d at 181 (citing Wallace, 572 So.2d at 376)). “There is no set time limit on the prosecution of an action once it has been filed, and dismissal for failure to prosecute will be upheld only ‘where the record shows the plaintiff has been guilty of dilatory or contumacious conduct.’” Miss. Dep’t of Human Servs., 830 So.2d at 632 (citing Watson, 493 So.2d at 1278). Finally, this Court also must consider whether lesser sanctions would suffice. Id. at 633 (citing Am. Tel. & Tel., 720 So.2d at 181-82). We also are “mindful of the fact that ‘dismissal with prejudice is an extreme and harsh sanction that deprives a litigant of the opportunity to pursue his claim, and any dismissals with prejudice are reserved for the most egregious cases.’ ” Hoffman v. Paracelsus Health Care Corp., 752 So.2d 1030, 1034 (Miss.1999) (citing Wallace, 572 So.2d at 376).

¶ 18. In sum, this Court may uphold a Rule 41(b) dismissal when there is: (1) a record of dilatory or contumacious conduct by the plaintiff; and (2) a finding by this Court that lesser sanctions would not serve the interests of justice. Additional “aggravating factors” or actual prejudice may bolster the case for dismissal, but are not requirements. We address each of these considerations below.

A. Clear Record of Delay

¶ 19. The Court of Appeals correctly found a clear record of delay in today’s case. Holder, 54 So.3d at 250, ¶ 28. The Court of Appeals made the following findings with regard to delay: the Holders did not submit their answers to interrogatories until 435 days past the deadline set by Mississippi Rule of Civil Procedure 33(b)(3); the Holders did not begin their own discovery until almost a year past the deadline set by Uniform Rule of Circuit and County Court Practice 4.04(A); and the Holders failed to reply to the defendants’ motion to dismiss within the ten-day time limit in Rule 4.03(2) of the Uniform Rules of Circuit and County Court Practice. Holder, 54 So.3d at 248-49, ¶¶ 17-20. Based on these findings, the Court of Appeals held that:

the record substantially supports the trial court’s finding of dilatory conduct on the part of the plaintiffs. Whether the plaintiffs’ failure to timely engage in discovery, as claimed by the plaintiffs’ counsel, was unintentional is of no moment to this Court, for the facts here clearly evince inexcusable delay. While there may be instances where delay, under the circumstances, may be excusable, we can say unequivocally that the asserted reason for the delay as stated by counsel for the plaintiffs, which he attributed to staffing difficulties at his law office and his having other trials to contend with, warrants no such consideration. In the ease at bar, counsel’s mistaken belief that someone from his law office had timely answered the defendants’ propounded discovery and filed the plaintiffs’ own discovery requests, constitutes — at the very least— delay by negligent omission.

Holder, 54 So.3d at 249, ¶ 21.

¶ 20. A showing of delay or contumacious conduct is sufficient for a Rule 41(b) dismissal when a lesser sanction would not serve the best interests of justice. Am. Tel. & Tel., 720 So.2d at 181 (citing Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir.1982)). “Delay alone may suffice” for a dismissal under Rule 41(b). Cox, 976 So.2d at 875 (emphasis added). “Factors other than delay are not required. The standard is whether there is ‘a clear record of delay or contumacious conduct by the plaintiff....’” Id. (citing Am. Tel. & Tel., 720 So.2d at 181 (emphasis added)).

¶ 21. We previously have held that repeated failures to comply with discovery requests warrant dismissal with prejudice. Beck v. Sapet, 937 So.2d 945, 950 (Miss.2006) (finding a “pattern of consistent follow-up regarding pending requests”); see also Hillman v. Weatherly, 14 So.3d 721, 723 (Miss.2009) (defendant had sent plaintiff a “good-faith letter requesting answers to discovery” three months after propounding first set of interrogatories). In the present case, counsel for the defendants sent his first set of interrogatories to plaintiffs’ counsel on February 12, 2007. Plaintiffs’ counsel responded to the requests by correspondence stating that he would not be able to complete discovery because he was in trial on another matter. Defendants’ counsel followed up three times with plaintiffs’ counsel, inquiring when the discovery requests would be completed. All of these inquiries were ignored by plaintiffs’ counsel.

¶ 22. We also may consider whether the plaintiffs’ activity was reactionary to the defendants’ motion to dismiss, or whether the activity was an effort to proceed in the litigation. Hillman, 14 So.3d at 727 (citing Hill v. Ramsey, 3 So.3d 120, 122 (Miss.2009)). Plaintiffs’ counsel first attempted discovery in this case when it sent a letter to counsel for the defendants requesting to take the deposition of Dr. Benefield on May 5, 2008. While this attempt was made prior to the defendants’ filing their motion to dismiss, we cannot ignore that counsel for the plaintiffs did not respond to the defendants’ interrogatories and their three subsequent followup inquires until thirteen days after the defendants had filed their motion to dismiss and 435 days past the deadline set by our Rules of Civil Procedure. See Miss. R. Civ. P. 33(b)(3).

¶ 23. This Court also has recognized that a defendant’s own dilatory conduct may be considered when dismissing an action. Salts v. Gulf Nat’l Life Ins. Co., 872 So.2d 667, 670 (Miss.2004) (citing Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1370 (Miss.1990)). In today’s case, there has been no showing of dilatory conduct by the defendants. The defendants timely filed their answer and defenses to the plaintiffs’ complaint.

¶ 24. We also note that plaintiffs’ counsel failed to move for a continuance to allow for additional time to complete the defendants’ discovery requests. In Mississippi Department of Human Services v. Helton, 741 So.2d 240, 243 (Miss.1999), plaintiffs counsel had requested a number of continuances, which defendant’s counsel claimed had caused a delay in the case warranting a Rule 41(b) dismissal. This Court found that “[t]here is nothing contemptuous or contumacious about requesting continuances.” Id. In the present case, plaintiffs’ counsel made no attempt to move for a continuance to allow for more time to answer the defendants’ discovery requests. Rather, he ignored the defendants’ repeated requests to answer interrogatories and allowed the case to languish on the docket without any activity for more than a year.

¶ 25. This case shows a clear record of delay based on the showing of inexcusable delay. When there is a clear record of delay, no showing of contumacious conduct is necessary. Hine v. Anchor Lake Prop. Owners Ass’n, 911 So.2d 1001, 1005 (Miss.Ct.App.2005). The plaintiffs delayed in answering the defendants’ interrogatories for 435 days. The plaintiffs also did not serve discovery requests upon the defendants within the time limit set by Uniform Rule of Civil and County Court Practice 4.04(A), and the plaintiffs were late in responding to the defendants’ motion to dismiss. Thus, the Court of Appeals was correct in holding that the trial court did not abuse its discretion in finding that a clear record of delay existed in the present case.

B. Additional Consideratioris of Prejudice and Aggravating Factors

¶ 26. While the Court of Appeals’ finding of delay is correct, we respectfully find that the court erred when it continued in its analysis and found that the defendants were not prejudiced by the delay and that the absence of an aggravating factor warrants reversal of the trial court’s judgment. Holder, 54 So.3d at 252,¶¶ 38-41. After finding that an aggravating factor is not present in today’s case, the Court of Appeals found that:

When this fact is taken into consideration together with the fact that there is no clear record of actual prejudice caused to the defendant, or even that of presumptive prejudice, we find that the trial court erred in its decision to dismiss the plaintiffs’ case with prejudice.

Holder, 54 So.3d at 252, ¶ 41.

¶ 27. The trial court may consider prejudice or the presence of an aggravating factor, and these considerations may help to bolster or strengthen a defendant’s case in support of dismissal. These considerations, however, are not a prerequisite to dismissal under Rule 41(b). The standard is “whether there is delay or contumacious conduct by the plaintiff....” Cox, 976 So.2d at 875 (citing Am. Tel. & Tel., 720 So.2d at 181). Because “[d]elay alone may suffice” for a dismissal pursuant to Rule 41(b), we disagree with the Court of Appeals’ holding that the absence of both an aggravating factor and prejudice — which we find is present in today’s case — warrants reversal of the trial court’s judgment. We discuss each separately below.

1. Prejudice

¶ 28. Actual prejudice is not a requirement for dismissal under Rule 41(b), however prejudice may be presumed from unreasonable delay. Cox, 976 So.2d at 876-79.

¶ 29. The Court of Appeals found that no presumptive prejudice existed in this case. The issue of whether actual prejudice did exist in this case is of no moment, because the result would be the same. The case had been stale for more than a year, and the plaintiffs had failed to meet multiple discovery and procedural deadlines. This dilatory conduct resulted in an unreasonable delay, and we have held that “prejudice may be presumed from unreasonable delay.” Id. at 879 (citing Rogers, 669 F.2d at 322).

¶ 30. Actual prejudice may arise when, because of the delay, witnesses become unavailable or the memories of witnesses fade. Id. at 877-79. The defendants agree that “[i]t is completely reasonable to expect witnesses to have no independent recollection over three years after the October 2004 patient interaction and care.” However, the defendants failed to present evidence showing that any of the witnesses could not recall the events. Despite the defendant’s failure to present evidence of witnesses’ fading memories, we find that the delay alone may result in presumed prejudice to the defendant. This presumed prejudice strengthens the defendants’ case for dismissal under Rule 41(b).

2. Aggravating Factors

¶ 31. The presence of an aggravating factor may serve to “bolster” or strengthen the case for a dismissal, but is not a requirement. Am. Tel. & Tel., 720 So.2d at 181. The aggravating factors include: (1) the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay; (2) the degree of actual prejudice to the defendant; and (3) whether the delay was the result of intentional conduct. Cox, 976 So.2d at 876 (citing Am. Tel. & Tel., 720 So.2d at 181). We do not find any aggravating factors in this case.

C. Lesser Sanctions

¶ 32. Finally, in determining whether the trial court abused its discretion when dismissing a case pursuant to Rule 41(b), we must consider whether lesser sanctions would better serve the interests of justice. Am. Tel. & Tel., 720 So.2d at 181. Lesser sanctions may include “ ‘fines, costs, or damages against plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings.’ ” Id. (quoting Wallace, 572 So.2d at 377). In the present case, the trial judge asked plaintiffs’ counsel what sanctions would be appropriate. Counsel recognized that it is within the trial court’s discretion to determine an appropriate sanction, but stated that he thought a warning would be appropriate. The trial judge responded by saying: “What’s the purpose of a warning? Everybody is supposed to know the rules.” Based on this exchange, the Court of Appeals found that the trial court considered lesser sanctions in his holding. Holder, 54 So.3d at 250-51, ¶¶ 29-36. We agree.

¶ 33. We now must determine whether the trial court was correct in finding that lesser sanctions would not suffice. Am. Tel. & Tel, 720 So.2d at 181. Plaintiffs’ counsel failed to meet three deadlines set by our Rules of Civil Procedure and Uniform Rules of Circuit and County Court Practice. The plaintiffs were more than a year late in answering the defendants’ interrogatories and beginning their discovery, and were two months late in replying to the defendants’ motion to dismiss. We also must consider that defense counsel attempted to contact plaintiffs’ counsel three times with regard to the late response to interrogatories. Today’s case is not an isolated incident of one missed deadline or a short, delayed response. In light of the multiple, extended delays, we find that lesser sanctions in the present case would not serve the interests of justice. Thus, the trial judge did not abuse his discretion in dismissing this case under Mississippi Rule of Civil Procedure 41(b).

CONCLUSION

¶ 34. This Court may uphold a Rule 41(b) dismissal when there has been a showing of “delay or contumacious conduct” by the plaintiff and a finding that lesser sanctions would not suffice. Delay alone is sufficient to warrant a dismissal; the Court of Appeals erred in reversing the trial court based on the absence of an aggravating factor present in today’s case. Aggravating factors may be considered by the trial court when determining whether dismissal is an appropriate sanction, but they are not requirements; delay alone may be sufficient to warrant a dismissal. Prejudice may be presumed from this delay. Finally, in light of the dilatory conduct present in this case, lesser sanctions would not better serve the interests of justice. Thus, for the reasons discussed today, we find no abuse of discretion on the part of the trial judge in dismissing this case under Mississippi Rule of Civil Procedure 41(b). Accordingly, we reverse the Court of Appeals and reinstate and affirm the judgment of the trial court dismissing the case with prejudice as to each defendant.

¶ 35. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

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

PIERCE, Justice,

specially concurring:

¶ 36. I concur with the Majority’s decision to affirm the trial court’s dismissal for failure to prosecute. I write separately, however, to emphasize our “deferential review” of trial courts in such matters as these.

¶ 37. In Stutts v. Miller, we affirmed a grant of dismissal for failure to serve process within the time prescribed by Mississippi Rule of Civil Procedure 4(h). Earlier, in Jenkins v. Oswald, we affirmed the denial of a grant of dismissal where a plaintiff failed to serve process for more than four years. In both cases, I concurred specially, saying “[i]t cannot be overstated that our trial courts are entitled to ‘deferential review in matters that require a discretionary ruling.”

¶ 38. While dismissal for failing to serve process and dismissal for failing to prosecute, the issue here, are different matters, they both are in the discretion of the trial court. As in Jenkins, I admit that I have some discomfort with the decision of the trial court. However, in agreement or disagreement, our level of deference remains unchanged. The record reflects that the trial court adequately made findings of fact and so came to a decision that is squarely within our precedent. I yield to that ruling.

WALLER, C.J., AND LAMAR, J, JOIN THIS OPINION. CARLSON, P.J., DICKINSON AND RANDOLPH, JJ., JOIN THIS OPINION IN PART.

KITCHENS, Justice,

dissenting:

¶ 39. Because lesser sanctions would better serve the interests of justice, and because the Court of Appeals accurately analyzed the law and reached the correct result, I respectfully dissent.

¶ 40. The Court of Appeals reversed the trial court’s dismissal because, in its view — and in mine — lesser sanctions were warranted under the circumstances. Holder v. Orange Grove Med. Specialties, P.A., 54 So.3d 244, 251-52, 252-53, ¶¶ 37-38, 42 (Miss.Ct.App.2010) (citing Cox v. Cox, 976 So.2d 869, 879 (Miss.2008)). Specifically, the Court of Appeals held:

According to our supreme court, lesser sanctions will not suffice where they cannot cure prejudice suffered by a defendant from a plaintiffs delay in prosecuting his or her case.
Thus, we are left solely with the question of whether the prejudice presumably suffered by the defendants as a result of the plaintiffs’ inexcusable delay in this matter, in and of itself, outweighs the law’s preference for a decision on the merits. Based on the attendant circumstances of this case, we find that it does not.

Id. at 252, ¶¶ 38-39 (citing Cox, 976 So.2d at 876, 879).

¶ 41. “Dismissals with prejudice are reserved for the most egregious cases.” Hillman v. Weatherly, 14 So.3d 721, 726 (Miss.2009) (quoting Wallace v. Jones, 572 So.2d 371, 376 (Miss.1990)). These extraordinary circumstances usually require the presence of plaintiff culpability, actual prejudice to the defendant, and intentional dilatory conduct. AT & T v. Days Inn, 720 So.2d 178, 181 (Miss.1998) (citations omitted). This simply is not that sort of case.

¶ 42. The trial judge’s consideration of lesser sanctions consisted of an abrupt dismissal of the plaintiffs’ attorney’s plea for a warning: “What’s the purposes of a warning? Everybody is supposed to know the rules.” Consideration of lesser sanctions should consist of more than a passing, dismissive reference to a single option. Instead, the trial judge carefully should weigh all viable alternatives, which include, in addition to explicit warnings, “fines, costs, or damages against the plaintiff or his counsel, attorney disciplinary measures, conditional dismissal, [and] dismissal without prejudice.” Id. (quoting Wallace, 572 So.2d at 377).

¶ 43. To support its holding, the majority finds, without explanation, that there was presumed prejudice and that “[t]his presumed prejudice strengthens the defendants’ case for dismissal under Rule 41(b).” Maj. Op. at ¶ 30. While I agree that a significant delay may generate a presumption of prejudice, there is no authority to support a conclusion that prejudice should be presumed in the present case. The majority relies on Cox, 976 So.2d at 879, for support, but the delay in that case was fourteen years, a far cry from the 435-day delay here. See also Jenkins v. Tucker, 18 So.3d 265, 271 (Miss.Ct.App.2009) (five-year history of delay amounted to presumed prejudice). Moreover, even if such a presumption existed, it was rebutted when the plaintiffs demonstrated that there was no actual prejudice to the defendants. See Beckwith v. State, 707 So.2d 547, 567-68 (Miss.1997) (although presumptively prejudicial, twenty-six-year delay in pursuing criminal case did not warrant dismissal of indictment where defendant could not demonstrate actual prejudice). The defendants here argued that dismissal with prejudice was proper because the plaintiffs’ failure to respond to interrogatories left them without knowledge of the nurse’s identity. However, the plaintiffs countered, and the trial judge agreed, that the defendants should have been able to determine the nurse’s identity based on the facts alleged in the complaint. Therefore, despite the majority’s holding to the contrary, the absence of actual prejudice does have a bearing on the outcome of the case. See AT & T, 720 So.2d at 181 (actual prejudice is an aggravating factor that may justify the harshest sanction of dismissal with prejudice).

¶ 44. “[Njegligence or inexcusable conduct on the part of the plaintiff’s counsel does not in itself justify dismissal with prejudice.” Id. at 182 (citing Rogers v. Kroger Co., 669 F.2d 317, 322-23 (5th Cir.1982); McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 558 (5th Cir.1981)). By affirming the trial judge’s decision to dismiss the case with prejudice based solely on the plaintiffs’ attorney’s conduct, today’s opinion strikes a blow against the law’s preference that cases be decided on their merits. Id. at 180 (citing Watson v. Lillard, 493 So.2d 1277, 1278 (Miss.1986)). It also punishes the plaintiffs, who have been deprived of their day in court through no fault of their own. For these reasons, I would affirm the Court of Appeals’ reversal of the dismissal and its remand of the case for consideration of lesser sanctions. Accordingly, I respectfully dissent.

GRAVES, P.J., AND CHANDLER, J., JOIN THIS OPINION.

      . The record does not provide Dr. Shah's full name.

      . In their answer, the defendants admitted that Marguerite had an appointment scheduled with Dr. Shah for October 15, 2004, but they disputed that Marguerite had a follow-up appointment scheduled for blood work to be performed at the Orange Grove clinic on October 13.

      . According to the complaint, the plaintiffs alleged the following acts of negligence:
      (1) Defendants negligently failed to monitor and adjust Marguerite's Coumadin therapy, which resulted in her becoming overly anti-coagulated and caused her to suffer the hemorrhagic stroke;
      (2) Orange Grove is responsible for the negligent acts of its employees, based on the theory of respondeat superior;
      (3) Orange Grove was negligent in failing to have a reasonable protocol in place to prevent over anticoagulation in a patient such as Marguerite;
      (4) The nurse employee/employees of Orange Grove was/were negligent in not performing a follow-up anticoagulation study on October 13, 2004, Marguerite’s return visit, and/or failed to discuss the matter with a physician;
      (5) Orange Grove and Dr. Benefield were negligent in not having an adequate system for monitoring Coumadin therapy and/or having studies performed locally and test results immediately available for the physicians’ review and reaction to increasing anticoagulation, placing a patient at unnecessarily increased risk of stroke;
      (6) Defendants Does One through Five, whose identities are unknown at this time, are guilty of such acts of negligence, which are, at present, unknown to Plaintiffs, but may be discovered during trial preparation of this case;
      (7) Defendants, collectively, are guilty of such other acts of negligence as may be discovered during trial preparation of this case.

      . Rule 33(b)(3) requires plaintiffs to serve their answers, and any objections thereto, within thirty days of receiving the defendant's interrogatories. The Holders received the defendants' interrogatories on February 12, 2007, and answered them on May 22, 2008, 435 days past the deadline.

      . Rule 4.04(A) states in part: "All discovery must be completed within ninety days from service of an answer by the applicable defendant.” The defendants answered on February 12, 2007, and tlie Holders did not begin their discovery until May 5, 2008, almost a year past the May 12, 2007, deadline.

      .Rule 4.03 of the Uniform Rules of Circuit and County Court Practice requires plaintiffs to reply to a motion to dismiss within ten days. The defendants’ motion to dismiss was filed on May 9, 2008. The Holders responded on July 24, 2008, more than two months after the deadline set by Rule 4.03.

      . Followup inquires were sent on May 4, May 24, and June 4, 2007.

      . See Stutts v. Miller, 37 So.3d 1, 7 (Miss.2010) (Pierce, J., concurring) (citing Rains v. Gardner, 731 So.2d 1192, 1197-98 (Miss.1999)).

      . Stutts, 37 So.3d at 7.

      . Jenkins v. Oswald, 3 So.3d 746, 750-51 (Miss.2009).

      . Stutts, 37 So.3d at 7 (Pierce, J., concurring) (citing Jenkins, 3 So.3d at 751).

      . Jenkins, 3 So.3d at 751.


author: DICKINSON, Justice, WALLER, Chief Justice,

text:
    MISSISSIPPI INSURANCE GUARANTY ASSOCIATION v. Bridgette BLAKENEY.
    No. 2008-CT-01840-SCT.
    Supreme Court of Mississippi.
    Jan. 3, 2011.

      Clifford C. Whitney, III, Vicksburg, attorney for appellant.
    S.Wayne Easterling, Hattiesburg, John Raymond Tullos, Raleigh, attorneys for Appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Justice,

for the Court:

¶ 1. When the workers’ compensation carrier making payments to Bridgette Blakeney was declared insolvent, its claims were transferred to the Mississippi Insurance Guaranty Association (MIGA), which, upon discovering Blakeney had received a settlement of $60,000 from her employer’s uninsured motorist (UM) carrier, petitioned the Workers’ Compensation Commission (“Commission”) for an offset of $100,000 — the full UM policy limits. The workers’ compensation administrative law judge (ALJ) found MIGA’s credit was limited to the $60,000 actually paid, but the full Commission noted that MIGA stood in the shoes of a compensation carrier, relied on caselaw that exempts UM benefits from a compensation carrier’s subrogation rights, and held that MIGA was entitled to no credit. The circuit court and the Court of Appeals affirmed the Commission, but we reverse, finding that MIGA must comply with a statute that requires it to offset the $60,000 actually paid.

BACKGROUND

¶ 2. After she was injured in an automobile accident, Blakeney collected the $10,000 policy limits of the other driver’s liability policy, settled for $60,000 of the $100,000 policy limits of her employer’s UM policy, and because the accident was work-related, began receiving workers’ compensation (“comp”) benefits from her employer’s comp carrier, Coregis Insurance Company. After Coregis was declared insolvent, its claims, including Blakeney’s, were assumed by MIGA.

¶ 3. After it started paying Blakeney’s comp benefits, MIGA learned of the $70,000 she had collected from the two insurance companies, prompting it to petition the Commission to allow it to suspend paying her benefits until her accrued claims exceeded the $70,000 she already had collected. Upon reflection, MIGA amended its petition, claiming that, rather than the $70,000 the two insurance companies had paid, it actually was entitled to a credit of $110,000 — -their combined policy limits.

¶ 4. The ALJ held that, rather than a credit for the full policy limits, MIGA was entitled to offset the $70,000 actually paid, but the full Commission reversed, holding that MIGA was entitled to full credit for the $10,000 paid by the liability policy (less $4,000 in collection costs), but it was not entitled to any credit for the UM policy. Both the circuit court and Court of Appeals affirmed the Commission’s order, and we granted MIGA’s petition for certio-rari.

ANALYSIS

¶ 5. Because most Commission decisions are fact-based, the appellate standard of review for those decisions is deferential. But when the essential facts are undisputed and the issues presented turn on legal questions, we must apply our own interpretation of the law.

I. MIGA was created by the Legislature, and its responsibilities are controlled by statute.

¶ 6. An insurance policy is a contract with an insurance company, whose duty to pay claims ordinarily is contractual. But when the insurance company becomes insolvent, its policyholders face a substantial risk that their legitimate claims will be delayed or not paid at all. To address this problem, the Legislature enacted the Mississippi Insurance Guaranty Association Law (the “MIGA Act”), creating MIGA.

¶ 7. MIGA’s statutory purpose is to “cover claimants who would otherwise not be fully compensated as a result of the insolvency of an insurer.” As noted by the Commission and the Court of Appeals, the MIGA Act provides that MIGA shall be

deemed the insurer to the extent of the 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.

¶ 8. This “deemed the insurer” language has produced the aphorism: “MIGA stands in the shoes of an insolvent insurer.” But an insolvent insurer’s shoes are not always a perfect fit. Just as surely as the insolvent insurer’s “duties and obligations” pass to MIGA under one subsection of the statute, they are limited under another subsection that says MIGA may pay covered claims only “to the extent of the association’s obligation.”

¶ 9. The “association’s obligation” often does not equal the insolvent insurer’s obligations under the policy. For instance, MIGA is statutorily prohibited from paying punitive damages, and its authority to pay claims is limited to claims of Mississippi residents, or concerning Mississippi property. And regardless of the limits of the underlying policy, MIGA’s liability for most claims is capped at $300,000.

¶ 10. MIGA’s duty and authority to pay claims — including Blakeney’s — must be filtered through these, and all other MIGA Act limitations, and we must respect and apply those limitations, even where they would not have applied to the insurance company. We now turn to the statutory limitation most pertinent to this case.

II. The MIGA Act’s exhaustion provision requires MIGA to offset Blake-ney’s UM benefits.

¶ 11. The MIGA Act states:

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.

¶ 12. This statute — often called MIGA’s “exhaustion provision” — seems clear enough: “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” defines the policyholders to whom the statute applies; “shall be required to exhaust first his right under such policy” defines the policyholder’s duty; and “Any amount payable on a covered claim under this article shall be reduced by the amount of any recovery under such insurance policy” establishes MIGA’s duty when the statute applies.

¶ 13. Applying the statute to the facts of this case: Blakeney had a claim against her employer’s solvent UM carrier for the same loss (the damages she suffered from the automobile accident) being paid by MIGA; she was required to “exhaust” her right under the UM policy — which she did by settling for $60,000 and signing a release; and MIGA was required to reduce its “amount payable” on Blakeney’s claim “by the amount of [Blakeney’s] recovery” under the UM policy which, as correctly concluded by the ALJ, was the $60,000 actually recovered, not the $100,000 policy limits demanded by MIGA.

¶ 14. The dissent proposes an interesting interpretation of the statute, one which would require the claim against the solvent insurer to meet the statutory definition of “covered claim” — a requirement that would be difficult to meet, since MIGA’s “covered claims” come only from insolvent insurers. We decline to adopt such a reading, because it is plainly contradicted by the statute. By definition, a “covered claim” can be only a claim against an “insolvent insurer.” It is therefore impossible for the claim against the solvent insurer to meet the statutory definition of “covered claim,” which requires that the insurer be insolvent. The statute’s clear meaning is that MIGA may reduce its obligation to pay a “covered claim” (which must have come from an insolvent insurer) where the beneficiary recovers on the same claim from a solvent insurer. Here, the “claim” is for injuries and lost wages caused by an accident; so the claim against the workers’ compensation carrier (for reimbursement of those losses) was the same legal claim as the one against the UM carrier. Our reading and conclusion today is in complete harmony with our prior holding in Leitch v. Mississippi Insurance Guaranty Association.

III. The MIGA Act has no exceptions for UM policies, workers’ compensation policies, or the Workers’ Compensation Law.

¶ 15. The question of whether UM benefits are off limits to MIGA was answered in Leitch, decided in 2010, in which MIGA assumed the claims of Reliance Insurance Company, the tortfeasor’s insolvent liability carrier. MIGA paid Leitch under the liability policy, and then asserted it was entitled to an offset for Leitch’s UM benefits. Leitch argued that his UM benefits did not reduce MIGA’s obligation to pay Reliance’s claims. We held that MIGA was entitled to the offset because the MIGA Act included no exemption for UM coverage.

¶ 16. In appealing the ALJ’s decision to the full Commission, Blakeney successfully argued that Leitch was distinguishable because, in her case, MIGA stood in the shoes of a comp carrier, bringing into play the Workers’ Compensation Law’s subro-gation provision, which says:

The commencement of 'an action by an employee ... against a third party for damages by reason of the injury ... shall not affect the right of the employee ... to recover compensation, but any amount recovered by the injured employee ... from a third party shall be applied as follows: reasonable costs of collection as approved and allowed ... by the commission ... shall be deducted; the remainder ... shall be used to discharge the legal liability of the ... insurer....

¶ 17. The Commission found that MIGA was not entitled to any credit under the UM policy, citing as its authority our decision in Cossitt v. Nationwide Mutual Insurance Co., in which we held that, although Section 71-3-71 does allow comp carriers to subrogate against liable third parties, it does not allow them to subro-gate against UM carriers, who are not liable “third parties” within the meaning of the subrogation provision. We find no connection between a comp carrier’s Section 71-3-71 subrogation rights and the MIGA Act’s exhaustion provision.

¶ 18. Section 71-3-71 allows comp carriers to pursue and recover from liable third parties and, as acknowledged by the Commission, UM carriers are not “third parties” under that statute (thus, our holding in Cossitt). So while we agree that MIGA has no authority under Section 71-3-71 to take an offset for UM benefits, we cannot agree that the Legislature is precluded from granting that authority under another statute — which we find it clearly did under Section 83-23-123(1).

¶ 19. In its order, the Commission stated:

We do not for a second deny that MIGA, under § 83-23-123(1) is entitled to have “any amount payable [by it to Blakeney] on a covered claim under this article ... reduced by the amount of any recovery” which Blakeney obtains from a liable third party.

(Emphasis added.) It appears the Commission reached its mistaken conclusion by ending its quote too quickly, and completing the sentence using its own language. The statute actually says — and the Commission’s order should have said: “any amount payable [by it to Blakeney] on a covered claim under this article ... reduced by the amount of any recovery under such insurance policy.”

¶ 20. The Commission’s redraft of the statute changed its meaning in several important ways:

• By removing the phrase “insurance policy,” the Commission effectively removed UM policies, which, according to Leitch, are fair game for MIGA.
• By writing in the phrase “a liable third party,” the Commission brought into play Cossitt’s exclusion of UM carriers and their policies from workers’ comp subrogation.

Then, having transformed the meaning of the statute, the Commission used it to reach three erroneous conclusions:

• “[T]he amount by which MIGA may effectively reduce the amount it has paid in workers’ compensation benefits necessarily must be determined by reference to Section 71-3-71.... ”
• “MIGA may, under Section 83-23-123(1), effectively reduce the amount of workers’ compensation benefits payable to Blakeney by the ‘net proceeds,’ under Section 71-3-71, recovered by Blakeney in her third party claim.”
• “[U]nquestionably, under Section 71-3-71, MIGA has no claim to the uninsured motorist benefits ... since the Employer’s own uninsured motorist carrier is not a ‘third party’ within the meaning of the statute.”

¶ 21. While we agree that a UM carrier “is not a ‘third party5 within the meaning of the [workers’ compensation] statute,” it unquestionably is an “insurer” within the meaning of the MIGA statute. In essence, by changing the statute’s language to label UM carriers as “third parties,” the Commission brought MIGA’s exhaustion provision under the purview of Section 71-3-71-a statute that allows comp carriers to recover their payments from third parties. Then, the Commission cited Cossitt for the proposition that UM carriers are not third parties for purposes of workers’ comp subrogation, thereby insulating from MIGA Coregis’ $60,000 payment to Blake-ney.

¶ 22. We find that the Commission’s interpretation and application of Section 83-23-123(1) was clearly erroneous; Section 71-3-71 is not applicable to the calculation of MIGA’s credit under Section 83-23-123(1); and when MIGA assumes the claims of a comp carrier, Section 71-3-71 does not deprive it of credit for payments made by UM carriers.

IV. MIGA is not entitled to credit for the full $100,000 policy limits, but is entitled to credit for the $60,000 actually paid.

¶ 23. MIGA argues that, even though Blakeney settled with the UM carrier for $60,000, it nevertheless is entitled to credit for the entire $100,000 policy limits. MIGA concedes there is no Mississippi authority on point, but cites the decisions of other states interpreting guaranty association statutes similar to Mississippi’s. We decline to follow the guidance of other state’s decisions because our statute is clear and unambiguous.

¶24. Blakeney settled with the UM carrier for $60,000, and we find no evidence or suggestion that the settlement involved fraud or bad faith. Applying Section 83-23-123(1) to these undisputed facts, our resolution of this issue is clear:

[Blakeney,] having a claim against [the UM policy] which [was] also [a claim covered by MIGA], [was required to, and did] exhaust first [her] right under [the UM] policy. Any amount payable [by MIGA] ... shall be reduced by the amount of any recovery [$60,000] under [the UM policy].

¶ 25. In crafting this statute, the Legislature selected the word “recovery” — a word bristling with clarity, void of ambiguity, and, for our purposes, easily applied. Recovery, in the context of the statute and this case, means Blakeney’s recovery. We find no merit in MIGA’s argument on this issue.

V. When MIGA applies credit under Section 83-23-123(1) to its amount payable, it may not deduct collection costs under Section 71-3-71.

¶ 26. The Commission held that MIGA was entitled to credit for the $10,000 liability policy under Section 83-23-123(1), filtered through Section 71-3-71’s cost-deduction provision, resulting in “net proceeds” to MIGA of $6,000. Although MIGA does contest the Commission’s use of Section 71-3-71 to deduct costs, neither MIGA nor Blakeney challenges or briefs the Commission’s determination that Section 83-23-123(1) is the source of MIGA’s claim and entitlement to the liability policy proceeds. Without analyzing the correctness of the Commission’s conclusion on this point, we shall accept it as true.

¶ 27. When a comp carrier exercises its subrogation rights under the workers’ comp statutes, the following language from that statute comes into play: “any amount recovered by the injured employee ... from a third party shall be applied as follows: reasonable costs of collection as approved and allowed ... by the commission ... shall be deducted_” This subrogation statute clearly allows the Commission to award costs.

¶ 28. Had MIGA pursued the liability policy proceeds under the subrogation statute, the Commission would have been justified in deducting costs under the provision. But as noted earlier, the Commission, MIGA, and Blakeney agree that MIGA’s claim is properly analyzed under Section 83-23-123(1), which has no cost-reduction provision. And other than the cost-reduction provision of the workers’ comp subrogation statute, Blakeney advanced no theory or argument that she was entitled to recover her attorney fees.

¶ 29. The determination of this issue rests on MIGA’s authority for the credit. When it takes credit under Section 83-23-123(1), it is not, as we have said, subject to the provisions of Section 71-3-71, including its cost-reduction provision. In this case, Section 83-23-123(1) controls, and we find no authority for the Commission’s reduction of costs.

CONCLUSION

¶ 30. MIGA is entitled to a $70,000 reduction in the amount it is obligated under the MIGA Act to pay on Blakeney’s claim. We therefore reverse the decisions of the Court of Appeals and the trial court, and render judgement for MIGA.

¶ 31. REVERSED AND RENDERED.

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

WALLER, Chief Justice,

dissenting:

¶ 32. Before applying MIGA’s exhaustion provision, the Court should determine whether Blakeney’s claim for UM benefits is also a “covered claim.” Blakeney’s claim for UM benefits differs from her MIGA-assumed claim for workers’ compensation benefits. Because her UM-benefit claim is not also covered claim, the MIGA Act does not require a reduction. Therefore, I respectfully dissent.

¶ 33. The MIGA Act’s exhaustion provision must be read in conjunction with Mississippi Code Section 83 — 23—109(f), which defines “covered claim.” Miss.Code Ann. § 83 — 23—109(f) (Rev.1999); Miss.Code Ann. § 83-23-123(1) (Rev.2009). Section 83-23-109(f) explains that a covered claim is “an unpaid claim, ... which arises out of and is within the coverage ... of the applicable limits of an insurance policy ... issued by an insurer, if such insurer becomes an insolvent insurer....” Miss. Code Ann. § 83 — 23—109(f) (emphasis added). The relevant MIGA statutes and this Court’s opinion in Leitch v. Mississippi Insurance Guaranty Association, 27 So.3d 396, 400 (Miss.2010) do not state that a party’s claim against a solvent insurer becomes a covered claim subject to MIGA’s exhaustion provision simply because both claims originated from the same injurious event. See Maj. Op. ¶ 13 (“Blakeney had a claim against her employer’s solvent UM carrier for the same loss[,] the damages she suffered from the automobile acci-dente,] being paid by MIGA.”).

¶ 34. MIGA may reduce its obligation to pay when a party collects benefits on a claim that is also a covered claim. See Miss.Code Ann. § 83-23-123(1) (Rev.1999). A covered claim is a claim that “arises” from an insolvent insurer’s coverage. Miss.Code Ann. § 83 — 23—109(f) (Rev.1999). In other words, when the insured recovers on a claim that is the same type of claim assumed by MIGA, MIGA must reduce its payment by the amount of that recovery. Thus, the exhaustion provision prevents duplicate recovery for identical claims.

¶ 35. The Court explained this concept in Leitch. After an automobile accident, Leitch filed suit against Reliance, the negligent driver’s insurance company. Leitch, 27 So.3d at 397. After Reliance later was declared insolvent and MIGA assumed its obligations, Leitch joined in the suit State Farm, his own insurance company, which initiated the UM coverage on his policy. See id. See also Leitch v. Miss. Ins. Guar. Ass’n, 27 So.3d 405, 409 (Miss.Ct.App.2010). Eventually, State Farm, the solvent company, settled with Leitch, and MIGA attempted to reduce its obligation to Leitch by the settlement amount. Leitch, 27 So.3d at 398. This Court determined that Leitch’s claim against State Farm (the solvent insurer) was the same as the covered claim he had against MIGA. Id. at 400. Because Leitch would have recovered twice on the same type of claim, MIGA could reduce its obligation by the amount of Leitch’s recovery under the State Farm policy. See id. In other words, Leitch did not authorize MIGA automatically to reduce its obligation when the insured had received UM benefits. See id. at 401.

¶ 36. Here, Blakeney’s claim against Coregis and Progressive is wholly unrelated to her covered claim, which precludes application of the exhaustion provision. See Miss.Code Ann. § 83-23-123(1) (Rev. 2009); Leitch, 27 So.3d at 400. Blakeney’s claim against Coregis and Progressive involved UM benefits, while her claim against MIGA involved workers’ compensation benefits. Because her claim for UM benefits is not the same as her covered claim for workers’ compensation benefits, MIGA cannot suspend its obligation to pay. See Leitch, 27 So.3d at 400. Further, unlike Leitch’s claim, Blakeney’s claim for UM benefits from the solvent insurance companies did not arise from another insurer’s insolvency.

¶ 37. In sum, under the MIGA statutes and Leitch, Blakeney’s claim against Core-gis and Progressive for UM benefits is not the same as her covered claim for workers’ compensation benefits. Any amount payable by MIGA on her covered claim for workers’ compensation benefits cannot be reduced by her recovery from Coregis and Progressive. Because the exhaustion provision does not apply, MIGA must pay Blakeney’s claim pursuant to Mississippi Code Section 83 — 23—115(1)(a)(i), which provides that MIGA shall satisfy its obligation to a claimant by paying “[t]he full amount of a covered claim for benefits under a workers’ compensation insurance coverage .... ” Miss.Code Ann. § 83-23-115(l)(a)(i) (Rev.2009).

¶ 38. Therefore, I would hold that MIGA is not entitled to a $70,000 reduction in the amount it is obligated to pay on Blakeney’s claim.

GRAVES, P.J., KITCHENS AND PIERCE, JJ„ JOIN THIS OPINION.

      . MIGA was established by the Legislature to assume limited claim responsibility for the claims of insolvent insurance companies. See generally Miss.Code Ann. §§ 83-23-1 to 83-25-235 (Rev. 1999).

      . A UM carrier is an insurance company providing coverage for the negligence of an uninsured motorist. See generally Miss.Code Ann. §§ 83-11-101 to 83-11-111 (Rev. 1999).

      . Miss. Ins. Guar. Ass’n v. Blakeney, 51 So.3d 208, 210 (Miss.Ct.App.2009).

      . Total Transp., Inc. of Miss. v. Shores, 968 So.2d 400, 404 (Miss.2007) (citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992); Georgia Pac. Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991)) (internal citations omitted).

      . KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss.1991).

      . Miss.Code Ann. § 83-23-103 (Rev.1999) ("The purpose of [MIGA] is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer....").

      . Nat'l Union Fire Ins. Co. v. Miss. Ins. Guar. Ass’n, 990 So.2d 174, 181 (Miss.2008).

      . Bobby Kitchens, Inc. v. Miss. Ins. Guar. Ass’n, 560 So.2d 129, 135 (Miss.1989).

      . See, e.g., Nat’l Union Fire, 990 So.2d at 177; Miss. Ins. Guar. Ass’n v. Byars, 614 So.2d 959, 964 (Miss.1993); Bobby Kitchens, 560 So.2d 129, 135 (Miss.1989).

      . Miss.Code Ann. § 83 — 23—115(l)(d) (Rev. 1999).

      . Miss.Code Ann. § 83-23-109(f) (Rev.1999).

      . Id.

      . Miss.Code Ann. § 83 — 23—115(l)(a)(iii) (Rev.1999).

      . Byars, 614 So.2d at 963 (internal citations omitted).

      . Miss.Code Ann. § 83-23-123(1) (Rev. 1999).

      . Diss. Op. ¶ 32.

      . Miss.Code Ann. § 83-23-109®.

      . Leitch v. Miss. Ins. Guar. Assn, 27 So.3d 396 (Miss.2010).

      . Id.

      . Id.

      . Id.

      . Id. at 401.

      . Miss.Code Ann. § 71-3-71 (Rev.2000) (emphasis added).

      . Cossitt v. Nationwide Mut. Ins. Co., 551 So.2d 879, 887 (Miss.1989).

      .Miss.Code Ann. § 83-23-123(1) (Rev. 1999).

      . Miss.Code Ann. § 71-3-71 (Rev.2000).

      . Miss.Code Ann. § 83-23-123 (Rev.1999).

      . Miss.Code Ann. § 71-3-71 (Rev.2000).

      . Miss.Code Ann. § 83-23-123(1) (Rev. 1999).


author: PIERCE, Justice,

text:
    Harvey WILLIAMS, Jr. a/k/a Smokie v. STATE of Mississippi.
    No. 2008-CT-00844-SCT.
    Supreme Court of Mississippi.
    Feb. 3, 2011.

      Merrida Coxwell, Charles Richard Mullins, Jane E. Tucker, Jackson, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   ON WRIT OF CERTIORARI

PIERCE, Justice,

for the Court:

¶ 1. Harvey “Smokie” Williams, Jr., shot and killed Calvin Younger in the parking lot at Jay’s Lounge in Jackson, allegedly in self-defense. At trial, he called a bouncer, Anthony Herrington, to testify that Younger had possessed a firearm earlier that night. That testimony was excluded because it was not disclosed in discovery. Williams was convicted, and the Court of Appeals affirmed the conviction. Because no evidence indicates that this discovery violation was willful, the evidence should not have been excluded. Thus, the conviction is reversed, and the ease is remanded for a new trial.

STATEMENT OF FACTS

¶ 2. Early in the morning of June 22, 2003, Williams parked his vehicle in the turn lane in the middle of Medgar Evers Drive in front of Jay’s Lounge, a nightclub in Jackson. According to his testimony at trial he exited his car saw Younger pull a gun from behind his back. Williams fired off five shots and fled the scene. Williams produced no other witnesses who would testify that Younger had pulled a gun on Williams. He did, however, produce Anthony Herrington, a bouncer at the club, who would have testified that he personally had denied entry to Calvin Younger earlier that night because Younger had a gun on his person.

¶ 3. While Herrington was allowed to testify that he had heard Younger cursing at Williams before the shooting and that he had seen Younger reach toward his back before Williams fired, he was not allowed to testify that Younger had possessed a gun earlier because the defense’s discovery responses had not mentioned this fact.

¶ 4. On the second day of the trial, Williams’s attorney told the judge that Herrington’s story about the gun had been discovered by the defense only that day. Nevertheless, the evidence was excluded, and Williams was convicted. His appeal was heard by the Court of Appeals, which affirmed the conviction. We granted cer-tiorari.

ANALYSIS

¶ 5. Pursuant to Mississippi Rule of Appellate Procedure 17(h), we limit our review to whether the trial court should have excluded portions of Anthony Her-rington’s testimony. The standard of review for the admission or exclusion of evidence is abuse of discretion. The trial court’s decision will stand unless the reviewing court concludes that the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion. Here, evidence was excluded based on an alleged discovery violation. We must determine (1) whether such a violation occurred and, if so, (2) whether the exclusion of this evidence was an appropriate remedy.

I. WHETHER THERE WAS A VIOLATION OP DISCOVERY PROCEDURES.

¶ 6. The process by which a defendant complies with discovery requirements is outlined in Uniform Rule of Circuit and County Court Practice 9.04:

C. ... the defendant shall, subject to constitutional limitations, promptly disclose to the prosecutor ... the following information and material which corresponds to that which the defendant sought and which is in the possession, custody, or control of the defendant or the defendant’s attorney, or the existence of which is known, or by the exercise of due diligence may become known, to the defendant or defendant’s counsel:
1. Names and addresses of all witnesses in chief which the defendant may offer at trial, together with a copy of the contents of any statement, written, recorded or otherwise preserved of each such witness and the substance of any oral statements made by any such witness ....

If after complying with the rules, a party discovers new evidence, it must be promptly disclosed. Here, Williams complied with pretrial discovery requirements, disclosing Herrington’s name and a summary of his testimony, but purportedly discovered new information from Herring-ton during the trial. The trial court allowed Herrington to testify, but excluded the statements purportedly discovered recently by the defense and not included in the discovery provided to the State.

¶ 7. Either side may use newly discovered information subject to the requirements of Rule 9.04. The plain language of the rule requires only disclosure of information and materials known or that would have become known by the exercise of due diligence and prompt disclosure of newly discovered information. The trial court did not specifically find that the information regarding Younger’s possession of a gun actually was known by the defense, that it would have been known by due diligence, or that it was not promptly disclosed to the State once it was known. If none of these elements was present, then there was no discovery violation at all.

¶ 8. However, the trial court did have information at its disposal to determine within its discretion that due diligence may not have been exercised in discovery. Williams’s attorney admitted that he did not begin preparing for the case until March 3, 2007, when the April 3, 2007, trial date was set, after having been appointed to take on the case more than a year before. And it appears that Herrington was not interviewed at all by the defense until the week before the trial.

¶ 9. In Morris v. State, we found that a trial court did not abuse discretion when it determined that a discovery violation was “willful and motivated by a desire to obtain a tactical advantage,” even though the judge gave no specific reason for the ruling. Considering our holding in Morris, we would exhibit a lack of deference to the trial court if we found that it had erred in determining that a discovery violation had occurred. However, even though that determination stands, we must settle whether the exclusion of important testimony was the appropriate remedy.

II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN EXCLUDING HERRINGTON’S TESTIMONY BASED ON THE FINDING OF A DISCOVERY VIOLATION.

¶ 10. In the context of discovery violations, exclusion of evidence is a radical sanction that should rarely be used. If a trial court is made aware of a party’s failure to comply with discovery requirements, it may admit the evidence, grant a continuance, or “enter such an order as it deems just under the circumstances.” However, the general rule is that the evidence cannot be excluded. In Darby v. State, we carved out an exception to this rule: If the trial court determines that the defendant’s discovery violation is “willful and motivated by a desire to obtain a tactical advantage,” the newly discovered evidence or witnesses may be excluded.

¶ 11. In Morris, we affirmed a finding that a discovery violation was willful where the defendant gave the State a list of witnesses the morning that the trial began. On the other hand, in Skaggs v. State, we reversed where the trial court struck the testimony of a defense witness who offered additional details that were not in reciprocal discovery. There, the defense counsel admitted to the court that he had learned of the additional testimony only that morning and had not even notified the State that the witness’s testimony might be different.

¶ 12. In this case, similarly to Skaggs and in contrast to Morris, the defense provided discovery to the State, including summaries of witness testimony. The defense attorney told the judge that Herring-ton later had provided him with an additional fact, which was quickly disclosed to the State, and nothing in the record indicates otherwise. The Court of Appeals reasoned that failure to disclose the entire substance of Herrington’s testimony was, per se, reason to find that the same failure was wilful. We disagree.

¶ 13. While avoiding unfair surprise to either the defense or prosecution is a fundamental policy of criminal procedure, nothing is more fundamental than an accused’s right to present witnesses in his own defense. It would be a mistake to adopt a posture in which we assume that recently discovered evidence is part of some scheme to defraud justice and require the defendant to prove otherwise. Here, the only indication in the record that the discovery violation was willful or motivated by a desire to obtain a tactical advantage is that the evidence was recently discovered. Coupled with the fact that the defense had disclosed the identity of the witness, had provided a partial summary of his testimony, and had disclosed the new information to the State before the witness took the stand, we do not think that the suspicious timing is enough. Further, exclusion was especially sharp considering the importance of this testimony to Williams’s case. Therefore, a sanction less harsh than exclusion of defense testimony, if any, should have been imposed.

¶ 14. Finally, contrary to the reasoning of the Court of Appeals, we do not think that this error was harmless. The admission or exclusion of evidence constitutes reversible error only where a party can show prejudice or harm. Herrington would have corroborated Williams’s testimony by verifying that Younger had possessed a gun shortly before the shooting. From the excluded testimony, the jury might have inferred that Younger, who had approached Williams, still had possessed the gun when Williams shot him. Without Herrington’s testimony, the evidence overwhelmingly indicates that Younger was unarmed.

¶ 15. Therefore, we find that the trial court’s exclusion of the full testimony of Anthony Herrington was an abuse of discretion, as the error seriously prejudiced the defendant. The opinion of the Court of Appeals and the conviction by the Hinds County Circuit Court are reversed, and the case is remanded to the trial court for a new trial.

¶ 16. REVERSED AND REMANDED.

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

      . Williams v. State, 54 So.3d 253, 269-70 (Miss.Ct.App.2010).

      . Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34 (¶4) (Miss.2003).

        .Id.

      . URCCC 9.04(C) (emphasis added).

      . Morris v. State, 927 So.2d 744, 747 (Miss.2006).

      . Houston v. State, 531 So.2d 598, 612 (Miss.1988).

      . Morris v. State, 927 So.2d 744, 747 (Miss.2006).

      . Morris, 927 So.2d at 747.

      . Darby v. State, 538 So.2d 1168, 1176 (Miss.1989).

      . Morris, 927 So.2d at 747.

      . Skaggs v. State, 676 So.2d 897, 903-04 (Miss.1996).

      . Skaggs, 676 So.2d at 902.

      . See Williams v. State, 54 So.3d 253, 259 (¶ 8) (Miss.Ct.App.2010)

      . Ray v. State, 503 So.2d 222, 225 (Miss.1986).

      . Williams, 54 So.3d at 259-60.

      . Ross v. State, 954 So.2d 968, 1001 (Miss.2007).