author: DICKINSON, Presiding Justice, COLEMAN, Justice,

text:
    Machon LYONS v. DIRECT GENERAL INSURANCE COMPANY OF MISSISSIPPI.
    No. 2011-CT-00896-SCT.
    Supreme Court of Mississippi.
    Feb. 13, 2014.
    Rehearing Denied June 5, 2014.
    Lance L. Stevens, attorney for appellant.
    Walker Reece Gibson, Michael Wayne Baxter, Andy Lowry, Ridgeland, attorneys for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

¶ 1. An insurance company denied an injured passenger’s personal-injury claim against the driver because its policy excluded any coverage for the person who was driving, and who was also the tortfea-sor. The circuit court granted the insurance company summary judgment. But because — to the extent of statutorily required liability coverage — the policy exclusion violates Mississippi law, we reverse in part.

FACTS AND PROCEDURAL HISTORY

¶ 2. Machón Lyons suffered severe injuries in an single-car automobile accident. The accident occurred when a Chevrolet Lumina operated by Roderick Holliday— in which Lyons was a passenger — left the road and collided with a tree. As a result, Lyons obtained a default judgment of $72,500 against Holliday.

¶ 3. Holliday’s mother, Daisy Lang, insured the Chevrolet Lumina through Direct General Insurance Company of Mississippi. Lang’s policy included a provision specifically excluding Holliday from any coverage under the policy. Accordingly, Direct denied coverage for the judgment.

¶4. Lyons sought a declaratory judgment, asking the Circuit Court of Monroe County to hold that Lang’s policy covered the judgment against Holliday. Lyons acknowledged the policy exclusion, but argued that Lang’s policy covered the judgment against Holliday because Mississippi law requires minimum-liability coverage for all permissive drivers, and because Lang’s insurance card — provided to Lang by Direct General for use as evidence of coverage — failed to mention any permissive-driver exclusions. This, according to Lyons, created an ambiguity that should be resolved in favor of the injured party.

¶ 5. The circuit court granted summary judgment in favor of Direct, finding that the policy clearly and specifically excluded coverage of Holliday. Lyons appealed.

¶ 6. The Mississippi Court of Appeals reversed, finding that Mississippi Code Section 63-15-4(2)(a) requires liability insurance for all vehicles operated in Mississippi and that Mississippi Code Section 63-15-43 requires that the liability insurance policy “[sjhall pay on behalf of the named insured and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured....” Accordingly, the court held that an insured’s policy must cover all permissive drivers, rendering the named-driver exclusion void up to the minimum coverage limits. Although the Court of Appeals reached the right result, it cited as its authority the incorrect statute, so we granted certiorari.

ANALYSIS

¶ 7. In its petition for certiorari Direct argues that the Court of Appeals erred because Section 63-15-43 does not establish the requirements for minimum mandatory liability coverage. Rather, Direct argues that Section 63 — 15—3(j) provides the minimum requirements for mandatory liability insurance and, because that section lacks any requirement for coverage of all permissive drivers, its named-driver exclusion — which unambiguously excludes Holli-day as a covered driver — is valid under Mississippi law.

¶ 8. Mississippi law requires liability insurance for every motor vehicle operated within the state:

Every motor vehicle operated in this state shall have an insurance card maintained in the motor vehicle as proof of liability insurance that is in compliance with the liability limits required by Section 63 — 15—3(j). The insured parties shall be responsible for maintaining the insurance card in each motor vehicle.

But the Court of Appeals erred by finding that “[t]he requirements for these mandatory liability insurance policies are set out in section 63-15-43 of the Mississippi Code.” Section 63-15-4 specifically provides that the insurance policy must comply with the requirements of Section 63-15-3(j), which makes no reference to Section 63-15-43.

It 9. Further, Section 63-15-43 applies by its terms to “an owner’s or an operator’s policy of liability insurance, certified as provided in Section 63-15-39 or Section 63-15-41.” We previously have addressed the precise issue of whether Section 63-15^3 applies “to all automobile liability insurance policies issued in the State, or only to those certified as proof of financial responsibility.”

1110. Prior to 2001, Mississippi law contained no general requirement that the owner or operator of a vehicle carry liability insurance. Instead, Mississippi law required that the Department of Public Safety suspend all automobile registrations of an owner — or the driver’s license of an operator — of any vehicle involved in an accident without liability insurance, unless the owner or operator could produce proof of future financial responsibility by “providing a written certificate of an insurance company ‘certifying that there is in effect a motor vehicle liability policy for the benefit of the person required to furnish proof of financial responsibility.’ ”

¶ 11. When the insured party in Mette-tal voluntarily obtained his liability insurance policy, unrelated to any accident or proof of future financial responsibility, we had to determine whether an exclusion contained in the voluntarily obtained policy — which conflicted with the requirements of Section 63-15-43 — could be enforced. We held that it could because “it is clear from the language of Subsection (1) that the provisions of § 63-15-43 apply only to policies certified as proof of financial responsibility.”

¶ 12. Since the Mettetal decision, the Legislature has repealed the requirement for proof of future financial responsibility following an accident, and has adopted a requirement that all vehicles operated within the State have liability insurance.

¶ 13. Likewise, in the case before us today, Section 63-15-43 is inapplicable by its own language because, by its terms, it applies only to policies certified under Sections 63-15-39 and 63-15-41. Because neither of the parties before us today suggests that the liability policy in the present case is one certified under Sections 63-15-39 and 63-15-41, the Court of Appeals erred by applying the requirements of Section 63-15-43.

¶ 14. But our analysis does not conclude here. Section 63 — 15—4(2)(b) provides that an “insurance company issuing a policy of motor vehicle liability insurance as required by this section shall furnish to the insured an insurance card for each motor vehicle....” Here, the parties stipulated that the insurance card Direct issued to Daisy Lang was her evidence of insurance coverage. Counsel for Direct confirmed at oral argument that this coverage was the coverage required by Mississippi statute.

¶ 15. For automobiles operated in Mississippi, Section 63-15-4(2)(a) requires that an insurance card be “maintained in the motor vehicle,” and that the insurance card serve as “proof of liability insurance that is in compliance with the limits required by Section 63-15-30) This statute — when read together with Section 63-15-4(2)(b), which requires the insurance company to issue the card — leaves no doubt that an insurer may not issue an insurance card for use as proof of coverage unless the policy complies with minimum statutory requirements. And if the policy provides no liability coverage for certain drivers, it does not comply.

¶ 16. Accordingly, we hold that Daisy Lang’s Direct General policy did not comply with the following minimum-liability coverage requirements

_in the amount of Twenty-five Thousand Dollars ($25,000.00) because of bodily injury to or death of one (1) person in any one (1) accident, and subject to said limit for one (1) person, in the amount of Fifty Thousand Dollars ($50,-000.00) because of bodily injury to or death of two (2) or more persons in any one (1) accident, and in the amount of Twenty-five Thousand Dollars ($25,-000.00) because of injury to or destruction of property of others in any one (1) accident.

¶ 17. This mandatory liability insurance requirement pertains to vehicles, not owners or operators. Said differently, every vehicle operated within this State must have the statutorily required minimum-coverage requirements of $25,000 for injury to one person, $50,000 for injury to two or more people, and $25,000 for property damage. A liability policy that purports to exclude that coverage for certain drivers fails to comply with the statutory mandate.

¶ 18. The dissent labels as “mysterious” our belief that exclusions to the statutorily mandated minimum-liability limits must come from — or be authorized by — the Legislature. But we find compelling the fact that the Legislature passed a lawful statute that unequivocally requires automobiles to maintain minimum-liability coverage in the amount of $25,000. Because the statute neither includes nor authorizes exclusions, we must hold that the exclusion at issue in this case does not apply to the first $25,000 of liability. The Legislature possesses the sole power to authorize such exclusions, and automobile insurers are not free to escape the statutorily required minimum-liability coverage simply by inserting an exclusion of their choice — no matter how well-reasoned — into their policies. Arguments for exceptions to clear statutory requirements should be made to the Legislature, not this Court.

¶ 19. The dissent also states that “parties are free to agree to whatever contractual terms they wish as long as the terms are not prohibited.” We agree. The parties indeed may negotiate — and automobile insurers may include — exclusions from coverage, so long as those exclusions do not emasculate the statutorily required minimum coverage. In other words, our opinion does not invalidate the exclusion at issue today for amounts which exceed the statutorily required minimum.

¶ 20. The dissent’s concern appears focused on other commonplace exclusions that are not at issue here. The essence of the dissent’s position is, if automobile insurers may exclude the minimum statutory coverage for intentional acts, why not for certain drivers? While this issue is not before us, it does showcase a problem that suggests additional analysis.

¶21. The dissent suggests that — so long as automobile insurers provide the minimum statutory coverage — they are free to exclude from that coverage any acts they choose. We find to be a non sequitur the notion that insurance companies are free to insert their own exceptions to minimum requirements. Requirements are just that — requirements—and nothing in the statute suggests that exceptions exist, or that insurance companies are authorized to include them in their policies. Indeed, this unbridled freedom would leave automobile insurers free to exclude coverage for accidents in which their insureds were exceeding the speed limit or under the influence of alcohol.

¶ 22. We have reached a similar conclusion in the context of uninsured-motorist benefits. Pakita Payne obtained an uninsured motorist policy which specifically excluded coverage when her husband Randy drove their car. We held the named-driver exclusion in that case void because it defeated the purposes of the statutory requirement for uninsured-motorist benefits, and it did not meet the statutory requirements for waiver. Here, we have no statutory provision for waiver. Our statutes create an absolute requirement for liability insurance up to the statutory minimum.

CONCLUSION

¶ 23. Accordingly, we find that, even though Holliday was an excluded driver under the Direct General policy issued to Daisy Lang, the exclusion did not operate to eliminate liability coverage in the minimum amounts required by statute, so we affirm the judgment reached by the Court of Appeals, although we disagree with its citation of authority, and reverse the trial court’s grant of summary judgment and remand for proceedings consistent with this opinion.

¶ 24. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT IS REVERSED AND THE CASE IS REMANDED.

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

COLEMAN, Justice,

dissenting:

¶ 25. I agree with the majority that the Court of Appeals erred in relying on the language of Section 63-15-43. However, in my view, the majority opinion misinterprets the interplay between and judicially adds to the statutory language of Mississippi Code Sections 63 — 15—3(j) and 63-15-4. I further believe the majority misapplies the undisputed facts regarding the coverage in place and the insurance contract to the aforementioned statutes. Accordingly, I respectfully dissent.

¶ 26. At issue in the instant case is the coverage — or lack thereof — provided by a policy of automobile liability insurance issued by Direct General and bearing policy number MSPD-111604187. The policy insured the vehicle at issue, a 2000 Ford Contour, and the declarations page establishes that it carried limits of liability of $25,000 per person and $50,000 per accident. “Limit of liability” is defined in the policy as follows:

The limit of liability shown in the Declarations for each “person” for Bodily Injury Liability is our maximum limit of liability for all damages ... due to bodily injury sustained by any one person in any one auto accident. Subject to this limit for each “person”, the limit of liability shown in the Declarations for each “accident” for Bodily Injury Liability is our maximum limit of liability for all damages due to bodily injury to two or more person [sic] resulting from any one auto accident.

The policy also contained exclusions in addition to the driver exclusion at issue today, including, inter alia, exclusions for intentional acts, an employee injured during the course of employment, liability arising out of ownership or operation of a vehicle being used to carry persons or property for hire, and the use of the insured vehicle without a reasonable belief one is entitled to use it.

¶ 27. With the provisions of the policy thus briefly described, I turn to the applicable statutes, of which there are two. First, Mississippi Code Section 63-15-4(2) provides, in pertinent part, as follows:

(a) Every motor vehicle operated in this state shall have an insurance card maintained in the motor vehicle as proof of liability insurance that is in compliance with the liability limits required by Section 63-15-3(j). The insured parties shall be responsible for maintaining the insurance card in each motor vehicle.
(b) An insurance company issuing a policy of motor vehicle liability insurance as required by this section shall furnish to the insured an insurance card for each motor vehicle at the time the insurance policy becomes effective....

Miss.Code Ann. § 63-15-4(2) (Rev.2013) (emphasis added). Second, Mississippi Code Section 63 — 15—3(j) provides as follows:

“Proof of financial responsibility” means proof of ability to respond in damages for liability, on account of accidents occurring subsequent to the effective date of said proof, arising out of the ownership, maintenance or use of a motor vehicle, in the amount of Twenty-five Thousand Dollars ($25,000.00) because of bodily injury to or death of one (1) person in any one (1) accident, and subject to said limit for one (1) person, in the amount of Fifty Thousand Dollars ($50,000.00) because of bodily injury to or death of two (2) or more persons in any one (1) accident, and in the amount of Twenty-five Thousand Dollars ($25,-000.00) because of injury to or destruction of property of others in any one (1) accident.

Miss.Code Ann. § 63 — 15—3(j) (Rev.2013). I agree with the majority that Section 63-15-43 lacks any controlling influence over the issue before the Court today, pursuant to our holding in State Farm Mutual Automobile Insurance Co. v. Mettetal, 534 So.2d 189 (Miss.1988). As the majority points out, Section 63-15^13 harkens back to the system of certificates of financial responsibility, which predates Mississippi’s mandatory liability insurance requirement. However, when the Legislature enacted the new, mandatory liability insurance requirement, it did so while leaving most of the statutes regulating proof of financial responsibility intact. Reading the statutes as a whole, it appears that the Legislature superimposed the new mandatory insurance requirement over the proof of financial responsibility statutes.

¶ 28. The imposition of the mandatory liability insurance requirement over the pre-existing statutes delineating the procedures and requirements of the older proof of financial responsibility serves as the root of my disagreement with the majority. Just as Section 63-15-43 predates the mandatory insurance requirement, so does Section 63-15-3(j), which defines “proof of financial responsibility” and is, therefore, relevant to the requirements of liability insurance coverage only to the extent Section 63 — 15—4(2)(a), quoted above, incorporates it. Accordingly, the question we must ask is to what extent, if any, does Section 63-15-4(2)(a) incorporate Section 63 — 15—3(j)? The plain language of 63-15-4(2)(a) gives us the answer, see Lawson v. Honeywell Int'l Inc., 75 So.3d 1024, 1030 (Miss.2011) (The Court “cannot ... add to the plain meaning of the statute or presume that the legislature failed to state something other than what was plainly stated.”) (quoting His Way Homes, Inc. v. Miss. Gaming Comm’n, 733 So.2d 764, 769 (Miss.1999)), which is that the liability limits given in Section 63-15-30) are incorporated into and required by Section 63-15-4(2)(a).

¶ 29. In other words, the Legislature requires that liability insurance have limits of liability of $25,000 per person and $50,000 per accident. Respectfully, to do as the majority does today and incorporate additional language from Section 63-15-30) in order to limit policy exclusions improperly adds to the plain meaning of Mississippi’s statutory liability insurance requirement. The undisputed policy language at issue in the instant case defines limits of liability as the greatest dollar amount the insurance company will be required to pay. The facts of the case and contract at issue show that policy number MSPD-111604187 carried limits of liability of $25,000 per person and $50,000 per accident.

¶ 30. In reaching more expansively into Section 63-15-30) than the plain language of 63-15-4(a)(2) supports, the majority holds that all cars must be insured at all times while being operated on the roads, and because the driver exclusion at issue rendered the subject car uninsured for purposes of its operation at the time of the underlying accident, the exclusion violates Mississippi law. Under the majority’s analysis, what other policy exclusions are invalid? If a driver uses an otherwise-insured vehicle to cause intentional harm to another, the damage caused would be excluded under the language of the policy in the instant case and under the language of every automobile liability insurance policy I can recall reading. However, under the reasoning of the majority would such an exclusion be illegal because, when the driver was acting with intent, the car would be uninsured? If a car was stolen and then used to injure another, would the exclusion regarding use by one without reason to believe he is entitled to drive the car no longer apply? To quote the majority, in both hypothetical situations, the policy “fails to insure the vehicle to the statutory minimum for a portion of the time it is operated within the state.”

¶ 31. The majority attempts to distance itself from the problems I raise by point-tag out .that the above exclusions are not at issue in the instant litigation, which is true. However, the majority opinion announces a legal principle, that under Section 63-15-4(a), all vehicles must be covered by liability insurance at all times while being operated upon Mississippi’s roads. That principle has consequences that will apply to future litigation and, as I understand it, it will apply to end all exclusions. The majority mysteriously seems to believe that, in order for any exclusion to be valid, the Legislature must mandate it, or at least explicitly allow it, in the wording of the statute itself. However, the better statement of the law is that parties are free to agree to whatever contractual terms they wish as long as the terms are not prohibited. Koch v. H & S Dev. Co., 249 Miss. 590, 629, 163 So.2d 710, 727 (1964) (“Provided it is not illegal or against public policy, persons have and should have the right to contract with reference to their property, their interests therein, and the use thereof with other persons, and to rely upon the terms and conditions of the contract mutually agreed upon.”). The majority accuses my dissent of opening the door to any and all exclusions, but then itself potentially closes the door to all exclusions and fails to explain how, under the principle of law established, the exclusions I cite can remain valid. Because what exclusions to allow, if any, is the province of the Legislature, and the statutes in question are silent, I believe the better course is to allow the Legislature to make the substantive law on the question rather than the Court.

¶ 32. I can find nothing in the Legislature’s enactments requiring liability insurance that prohibits policy exclusions or, to use the majority’s language, requires a vehicle to be insured under every circumstance and at all times it is being operated within the state. What does exist is the requirement that a policy of liability insurance be attached to each vehicle being operated within the state, and that the policy have liability limits of $25,000 per person and $50,000 per accident. The car at issue had such a policy attached to it.

¶33. The majority’s expansion of the phrase “liability limits,” found in Section 63-15-4(a)(2), beyond the dollar amounts of the policy limits lacks support from the undisputed facts of the case before the Court and from the relevant statutes. Liability limits and exclusions are two separate insurance policy items, and while the statutes provide explicit, mandatory dollar-amount requirements for the former, they remain silent as to the latter. Accordingly, I respectfully dissent.

RANDOLPH, P.J., JOINS THIS OPINION.

      . Miss.Code Ann. § 63-15-43 (Rev.2013).

      . Lyons v. Direct Gen. Ins. Co. of Miss., 138 So.3d 930 (Miss.Ct.App.2013).

      .Miss.Code Ann. § 63-15-43(2)(b) (Rev. 2013).

        .Lyons, 138 So.3d at 933.

      . Miss.Code Ann. § 63-15-4(2)(a) (Rev.2013).

      . Lyons, 138 So.3d at 931-32.

      . Miss.Code Ann. § 63-15-4(2)(a) (Rev.2013).

      . Miss.Code Ann. § 63 — 15—3(j) (Rev.2013).

      . Miss.Code Ann. § 63-15-43(1) (Rev.2013).

      . State Farm Mut. Auto. Ins. Co. v. Mettetal, 534 So.2d 189, 190 (Miss.1988).

      . Id. at 192.

      . Id. (citing Miss.Code Ann. § 63-15-11 (repealed March 20, 2013)).

      . Id. (quoting Miss.Code Ann. § 63-15-39).

      . Id. at 190.

      . Id.

      . Id. at 193.

      . Miss.Code Ann. § 63-15-11 (repealed March 20, 2013).

      . Miss.Code Ann. § 63-15-4(2)(a) (Rev. 2013).

      . Miss.Code Ann. § 63-15-43(1) (Rev.2013).

      . Miss.Code Ann. § 63-15-4(2)(b) (Rev. 2013).

      . Miss.Code Ann. § 63-15-4(2)(a) (Rev. 2013) (emphasis added).

      . Miss.Code Ann. § 63-15-4(2)(a) (Rev. 2013)

      . Miss.Code Ann. § 63 — 15—3(j) (Rev.2013)

      . Atlanta Cas. Co. v. Payne, 603 So.2d 343, 344 (Miss. 1992).

      . Id. at 346, 347.


source: Caselaw Access Project

author: PIERCE, Justice, LAMAR, Justice,

license: Public Domain

text:
    Michael CRAWFORD v. CUSTOM SIGN COMPANY a/k/a Custom Sign Company of Batesville, Inc. f/k/a Custom Sign Company of Grenada, Inc.
    Nos. 2011-CA-00120-SCT, 2007-CA-00322-SCT, 2007-CA-00322-SCT.
    Supreme Court of Mississippi.
    March 27, 2014.
    Rehearing Denied June 5, 2014.

      Derek D. Hopson, Sr., attorney for appellant.
    Gerald H. Jacks, Kathy R. Clark, Mary McKay Lasker, Jamie Ferguson Jacks, Cleveland, attorneys for appellee.

      Before RANDOLPH, P.J., PIERCE and KING, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. Michael Crawford initiated legal action in circuit court against Defendants Alex Jordan, Morris Transportation, and Custom Sign Company (Custom) based on a motor vehicle accident. First, Crawford filed a petition to perpetuate testimony in the Circuit Court of Coahoma County, Mississippi, to depose Jordan and Morris Transportation in an attempt to identify any additional defendants. The case was removed to federal court. After removal, Crawford filed a complaint in federal court. Crawford subsequently was granted leave from the federal court to file a complaint in the Circuit Court of Coahoma County against Jordan, Morris, and Custom. The case was later dismissed by the federal court based on premature removal since removal occurred before Crawford had filed a complaint.

¶2. Thereafter, Crawford filed a first amended complaint, styled and numbered as a separate cause of action in circuit court, pursuant to the savings statute. Miss.Code Ann. § 15-1-69 (Rev.2012). Defendants then moved to have both the original complaint and first amended complaint dismissed based on the argument that the federal-court action was dismissed rather than remanded, which would bar Crawford from proceeding on either complaint in circuit court. Alternatively, Defendants asserted that the suit was barred by the general three-year statute of limitations. Miss.Code Ann. § 15-1-49. Defendants also alleged that the one-year savings statute did not apply because the federal court granted Crawford’s voluntary motion to dismiss, which was not a dismissal for a matter of form in accordance with Mississippi Code Section 15-1-69.

¶ 3. The trial court granted Defendants’ motion to dismiss with prejudice, and Crawford appealed to this Court. We reversed the dismissal, finding that the federal court’s dismissal was for a matter of form — lack of subject-matter jurisdiction. This Court also found that the original complaint filed during Crawford’s leave from federal court was a nullity, since the case ultimately was dismissed rather than remanded by the federal court. Nevertheless, the first amended complaint was filed after the federal court’s dismissal; therefore, it was deemed valid and timely filed within one year after the dismissal; thus the savings statute applied. Accordingly, the case was remanded.

¶ 4. On remand, Crawford settled with Jordan and Morris Transportation. Custom filed its answer and motion for summary judgment, submitting that Crawford’s claims were barred by the statute of repose. Miss.Code Ann. § 15-1-41. Crawford filed multiple responses to Custom’s motion for summary judgment, alleging fraudulent concealment, the inapplicability of the statute of repose, and waiver. The trial court granted Custom’s motion for summary judgment based on the statute of repose being applicable, thus barring Crawford’s claims. Crawford filed a motion to reconsider, which was denied by the trial court.

¶5. Crawford now appeals, requesting this Court remand the case for trial because (1) the statute of repose does not apply in this case, or alternatively, (2) Custom waived the right to such defense. Finding this cause of action should be reversed and remanded for further factual determinations regarding the applicability of the statute of repose, we will not address the issue of waiver. Therefore, this opinion will discuss whether the trial court erred in finding that there was no genuine issue of material fact, thus making the statute of repose applicable to Custom, warranting a judgment as a matter of law.

STATEMENT OF THE FACTS

¶ 6. In 2001, Jordan, while employed by Morris Transportation, was driving an eighteen-wheel tractor trailer through Clarksdale, Mississippi. As Jordan approached a railroad viaduct, he noticed a 13' 6" clearance warning while also noticing a “Welcome to Clarksdale” sign that was affixed to the underpass. Jordan believed that the bottom portion of the sign appeared to hang slightly below the underpass. Fearing he would not be able to clear the sign hanging from the underpass, Jordan stopped the tractor-trailer in the inner northbound lane to inspect the sign before attempting to proceed through the underpass. Consequently, Crawford, traveling in the same lane, approached the situation and was unable to avoid crashing into the eighteen-wheeler.

¶ 7. In 1997, Custom was hired to create the “Welcome to Clarksdale” sign to hang from a railroad underpass in Clarksdale. The sign’s placement was to cover damaged concrete on the viaduct. In making the sign, Custom used sign board from a sign originally made for Northwest Regional Medical Center, which was no longer in use. During the deposition of an employee of Custom, the employee stated that the sign was “reworked” to meet the specifications of the new sign. The employee further provided that only the panels from the original sign were used and that Custom had to make the tubing for the backside of the new sign.

¶ 8. Custom’s employee also provided that the order was placed by the City of Clarksdale through James Butler, who was the Director of Public Works for the city at that time. The order reads, “Bill to City of C’dale,” “Buyer James Butler.” The invoice reflecting payment reads, “Sold to City Beautification.” James Butler’s affidavit states that he was a member of the City Beautification Committee at the time the order was placed, and that the order was placed on behalf of the committee and not the city. Custom stated that it did not have the actual checks from the order, but the record does contain one check stub reading “Depository of the City of Clarksdale.” Repairs were made to the sign after its original placement. The repair invoice reads, “Sold to C’dale Flowers and Garden,” “James Butler,” while the repair order reads, “Sold to City of C’dale,” “James Butler.”

¶ 9. Custom’s employee also explained that, in some instances, Custom would obtain permits for signs before they were installed, but in this instance, it was under the belief that the city would obtain its own permit through James Butler. James Butler recounted that, to his knowledge, the sign company was responsible for obtaining the permit, and any permit would have been obtained through the State of Mississippi, because the city did not own the viaduct. The record does not contain any permit being obtained for the installation of the sign or any documentation revealing the owner of the viaduct.

STANDARD OF REVIEW

¶ 10. The trial court’s grant of summary judgment is reviewed de novo. Stuart v. Univ. of Miss. Med. Ctr., 21 So.3d 544, 546 (Miss.2009) (citing U.S. Fid. & Guar. Co. v. Martin, 998 So.2d 956, 962 (Miss.2008) (citations omitted)). This Court will affirm the trial court’s grant of summary judgment if it is clear that no genuine issue of material fact exists and a judgment as a matter of law is warranted. Id. at 547 (citing Miss. R. Civ. P. 56(c); Martin, 998 So.2d at 962).

ANALYSIS

Whether the trial court erred in finding- no genuine issue of material fact as to whether this cause of action is barred by the statute of repose.

¶ 11. A determination of whether a cause of action is barred by the statute of repose may be properly decided by the trial court if it is clear that “reasonable minds” would not disagree on the decision, otherwise; the issue should be presented before a jury for determination. Smith v. Sanders, 485 So.2d 1051, 1053 (Miss.1986) (citing Gulfport Fertilizer Co. v. McMurphy, 114 Miss. 250, 75 So. 113, 114 (1917)). This Court has instructed that the trial court, when deciding on a motion for summary judgment, must consider “... admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” Smith, 485 So.2d at 1054 (quoting Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983)). The evidence before the trial court must be considered in the light most favorable to the nonmov-ing party. Id. The trial court must not try issues of fact; rather, it is to decide whether issues exist that must be determined at trial. Evan Johnson & Sons Constr., Inc. v. State, 877 So.2d 360, 365 (Miss.2004) (citing Brown, 444 So.2d at 362).

¶ 12. After hearing oral argument on the matter, this Court finds that genuine issues of material fact exist concerning the actual ownership of the viaduct from which the sign hangs, and whether Custom’s work involved the design, planning, supervision of construction, or construction to real property as is required by the statute of repose. Mississippi’s statute of repose states:

No action may be brought to recover damages for injury to property, real or personal, or for an injury to the person, arising out of any deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property, and no action may be brought for contribution or indemnity for damages sustained on account of such injury except by prior written agreement providing for such contribution or indemnity, against any person, firm or corporation performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than six (6) years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof. This limitation shall apply to actions against persons, firms and corporations performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property....

Miss.Code Ann. § 15-1-41 (Rev.2012).

¶ 13. The record indicates that an assumption has been made stating that the viaduct is owned by the state rather than by the City of Clarksdale; however, no evidence has been submitted affirming the assumption. Additionally, testimony differs as to who was responsible for obtaining a permit to hang the sign, and even the existence of an actual permit. For the elements of the statute of repose to be satisfied, ownership of the viaduct must be established.

¶ 14. The statute plainly states that there must be written acceptance, occupancy, or use of the improvement by the owner. On a motion for summary judgment, the movant bears the burden of persuading the trial court that there is no genuine issue of material fact. Brown, 444 So.2d at 362. The nonmoving party must present “significant probative evidence” establishing issues of fact that are triable. Brown, 444 So.2d at 364 (citing Union Planters Nat’l Leasing, Inc. v. Woods, 687 F.2d 117, 119, 34 Fed.R.Serv.2d 1490 (5th Cir.1982)). Here, neither party has adequately shown who is the actual owner of the viaduct. At the summary-judgment hearing before the trial court, Custom indicated that actual ownership is not pertinent to the analysis, because the sign was in use and occupying the property from the moment it was installed by Custom. Nevertheless, the occupancy or use elements fail here because it must be shown that the occupancy or use is by the owner.

¶ 15. Further, if a permit actually exists, it will aid in support of written acceptance by whoever issued the permit, but no permit has been provided for the purposes of this appeal. Accordingly, ownership must be established properly before a determination can be made on whether the statute of repose applies to Custom, and the trial court erred by not finding the ownership of the property to be a genuine issue of material fact. See Smith, 485 So.2d at 1055 (trial court did not have evidence before it to establish that no genuine issue of material fact existed proving when plaintiff discovered his injury such that defendant should have been granted a judgment as a matter of law based on the application of the statute of limitations).

¶ 16. Additionally, whether the statute of repose may be asserted by Custom as a defense cannot be decided without establishing that Custom was responsible for the design, planning, supervision of construction, or construction to real property. As previously mentioned, Custom’s employee’s deposition stated that the sign originally made for the hospital was “reworked” to meet the requirements of the Clarksdale sign. The testimony also set forth that only the panels of the original sign were used in the creation of the Clarksdale sign, and the backside of the sign was all newly made. Based on the current contents of the record, reasonable minds could differ as to whether the sign was revamped or newly constructed. As a result, this uncertainty should be clarified by a jury’s determination. Smith, 485 So.2d at 1053 (citing Gulfport Fertilizer Co., 114 Miss. 250, 75 So. at 114).

¶ 17. Therefore, the trial court erred in granting summary judgment when these genuine issues of material fact exist and must be resolved to determine whether Custom meets the required elements of ownership and of design, planning, supervision of construction, or construction to real property, making the statute of repose an applicable defense.

CONCLUSION

¶ 18. Finding genuine issues of material fact exist, we reverse the summary judgment and remand this case to the Circuit Court of Coahoma County for a factual determination in accordance with this opinion.

¶ 19. REVERSED AND REMANDED.

WALLER, C.J., RANDOLPH, P.J., KITCHENS, CHANDLER AND KING, JJ., CONCUR. LAMAR, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND COLEMAN, J.

LAMAR, Justice,

dissenting:

¶20. To say that this case has not proceeded in a straight line to resolution is a huge understatement. In dismissing the federal action, the federal court observed that “... this case has progressed from a procedural conundrum to a procedural quagmire.... ” Unfortunately, I see today’s decision as only adding to the confusion, and I respectfully dissent.

¶ 21. Crawford appeals the grant of summary judgment arguing two issues:

1) the applicability of the statute of repose to signs on a highway; and
2) waiver of the statute-of-repose defense by Custom Signs.

Without addressing either issue presented, the majority finds that summary judgment was improper because two questions of material fact exist:

1) ownership of the viaduct and
2) questions as to whether Custom Signs was responsible for the design, planning, supervision of construction, or construction to real property.

¶ 22. Section 15-1-41 of the Mississippi Code, commonly known as a statute of repose, bars actions after a period of “six years after the written acceptance or actual occupancy or use, whichever occurs first, of such improvement by the owner thereof.” I agree with Custom Signs that actual ownership of the viaduct is irrelevant to this analysis because the date the sign was put into use is known.

¶ 23. I would find that the circuit court properly granted summary judgment in this case. The six-year period of prescription set out in Section 15-1-41 began to run at the latest when the sign was put into use. The record reflects that the sign was installed on the viaduct and put into use in June 1997 — a fact that apparently is not disputed. Therefore, the deadline for any action to be brought “for injury ... arising out of deficiency in the design, planning, supervision or observation of construction, or construction of an improvement to real property ...” was six years later, in June 2003. The first complaint was filed in federal court in November 2003. Without regard to who owns the viaduct or who issued the permit, the statute of repose has run. I would affirm the trial court.

DICKINSON, P.J., AND COLEMAN, J., JOIN THIS OPINION.

      . Crawford’s complaint alleges that:
      53. Custom Sign Co. is strictly liable for the improper design of the sign....
      55. The sign was at the time it left the control of Custom Sign Co. designed in a defective manner....
      56.... As a result of the design defect, the sign failed to function as expected....


author: LAMAR, Justice, COLEMAN, Justice,

text:
    Lonnie SMITH v. TIPPAH ELECTRIC POWER ASSOCIATION and Electric Power Associations of Mississippi Workers’ Compensation Group, Inc.
    No. 2012-CT-00502-SCT.
    Supreme Court of Mississippi.
    April 3, 2014.
    Rehearing Denied June 5, 2014.

      John S. Farese, Anthony L. Farese, Ashland, attorneys for appellant.
    Amy K. Taylor, attorney for appellees.
   LAMAR, Justice,

for the Court:

¶ 1. After suffering extensive electrical shock while working as a lineman for Tip-pah Electric Power Association (“Tippah”), Lonnie Smith filed a petition to controvert with the Mississippi Workers’ Compensation Commission (“Commission”). Tippah denied that Smith’s claim was compensable and raised the affirmative defense that Smith had intentionally injured himself. The administrative judge (“AJ”) found that Smith had intentionally injured himself and that his injury was not compensable; the Commission affirmed the AJ’s denial of the claim. The Mississippi Court of Appeals affirmed the Commission’s decision. We granted certiorari because we find that the Commission’s decision is not supported by substantial evidence. We reverse and remand this case to the Commission for a determination of benefits.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 29, 2010, Smith was working as a lineman installing underground electrical service to a residential trailer. Smith was working as the bucket man as part of a crew that included foreman Freddy Crawford, Michael Braddock, and Ronald Stroupe. Part of Smith’s duties included disconnecting the clamp on the primary or “hot” electrical line, which he did. After he disconnected the clamp, Smith waited in the bucket for the crew below to finish some work so he could continue with his job. Stroupe and Crawford testified that Smith had been quieter than usual that day and was not joking around as much.

¶ 8. As Smith was waiting in the bucket, Tippah engineer Danny Capíes drove up to the job site. Capíes had been sent by Tippah management to bring Smith in for a drug test. Capíes testified that he told Crawford that he needed Smith to come with him and that Crawford told Smith to come down. Capíes turned and began to walk away at that point, and does not remember if Smith responded. Crawford also testified that he told Smith to come down. Braddock testified that Crawford told Smith to come down and that Smith responded, “Okay. Let me take the clamp off the transformer.” Smith does not remember being told to come down. It is undisputed that Smith was not informed why Capíes was there.

¶4. A few seconds after he turned to walk away, Capíes heard the bucket moving, followed by a buzzing sound. When he turned around, he observed Smith lying in the power lines, with one hand on the neutral line and one hand on the primary. Capíes did not see how Smith came to touch the lines. Likewise, the other crew members present did not see the actual accident, although they all testified that they heard an “arch,” or the distinctive sound that an electrical line makes when it discharges current. Crawford testified that, when he looked up, he saw Smith in the lines, with one hand on the neutral and one hand on the primary. Braddock similarly testified that, when he heard the arch, he turned and saw Smith’s right hand on the neutral and left hand on the primary, smoke coming out of Smith’s left hand, and then saw Smith fall into the bucket. Stroupe testified that, after he heard the noise, he turned and saw Smith lying in the primary wire.

¶ 5. Smith testified that his memory of what happened is not clear. However, Smith testified that, before the accident, he dropped something, perhaps his knife, inside the bucket. He testified that he bent down to pick up the object, stood up, and came into contact with the primary line. Smith acknowledged that, to be severely injured, a person must be grounded when he contacts the primary line, but he does not know what his ground was, or why his injuries were so severe if he bumped into only the primary line.

¶ 6. After the accident, the crew brought the bucket and Smith down to the ground. Capíes testified that Smith was wearing leather gloves that were burned on the palms. Smith acknowledged that workers were required to wear rubber gloves if they were going to be within two feet and one inch of the primary line, but that he routinely wore leather gloves if the job did not require him to come within that distance. Smith survived the accident, but both of his arms were lost below the elbow.

¶ 7. After the accident, Michael Welt-zheimer, Tippah’s vice president of Safety and Loss Control, conducted an investigation. Weltzheimer testified that the distance between the primary and neutral lines was measured to be around three feet and seven inches. Weltzheimer testified that a perfect distance between the lines would be four feet, but that a difference of three feet and seven inches was not uncommon. Additionally, Capíes testified that the distance between the lines might have been around two feet.

¶ 8. Smith filed a petition to controvert with the Commission. Tippah denied com-pensability, arguing that Smith intentionally injured himself. Tippah’s theory was that Smith, who was under a criminal investigation and had been acting depressed, panicked when Capíes came to bring him in and intentionally grabbed the neutral and primary lines in an attempt to commit suicide. Following a hearing, the AJ found that Smith had intentionally injured himself and determined that his injury was not compensable.

¶ 9. Specifically, the AJ found that Smith’s version of what happened was not credible, in part because he did not remember how the accident occurred. The AJ noted that Smith testified that he recalled coming into contact with only the primary, which was directly contradicted by the testimony of three other witnesses who saw Smith with one hand on the primary and one hand on the neutral. The AJ also noted that Smith testified he was not told to come down, which contradicted the other testimony that Crawford instructed him to come down. The AJ further noted that Smith was an experienced lineman who knew that he should have been wearing rubber gloves if he was going to be within two feet one inch of the primary line, instead of the leather gloves he was wearing, and that there was testimony that Smith was not acting like his usual self that day. The AJ also noted that there were four feet between the primary and neutral line. The AJ found that, based on the testimony presented, Smith had one hand on the primary line and one hand on the neutral line at the time of the incident and, given the four feet between the lines, that Smith intentionally placed his hands on the neutral and primary lines with full awareness of the potential consequences.

¶ 10. Smith appealed the AJ’s decision to the Commission, which affirmed, with Commissioner Debra Gibbs dissenting. Commissioner Gibbs would have found that the injury was compensable because Tippah failed to meet its burden of proof in establishing that Smith had intentionally injured himself. Specifically, Commissioner Gibbs noted that there was sufficient evidence to contradict Tippah’s position that Smith attempted suicide the day of the accident and that no witness actually saw the moment of injury. Commissioner Gibbs further noted that there was conflicting testimony regarding whether Smith heard Crawford call for him to come down, Smith’s mood the day of the accident, and the distance between the neutral and primary lines.

¶ 11. The Court of Appeals found that the Commission’s decision was supported by substantial evidence and affirmed. We granted certiorari.

DISCUSSION

I. Standard of Review

¶ 12. “The standard of review in a workers’ compensation appeal is limited to whether the Commission’s decision is supported by substantial evidence.” This Court has defined “substantial evidence” as follows:

[substantial evidence ... means something more than a “mere scintilla” of evidence, and that it does not rise to the level of “a preponderance of the evidence.” It may be said that it “means such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Substantial evidence means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred.”

“This Court will reverse an order of the Workers’ Compensation Commission only where such order is clearly erroneous and contrary to the overwhelming weight of the evidence.”

II. The Commission’s decision was not supported by substantial evidence.

¶ 13. The Mississippi Worker’s Compensation Act defines a compensable injury as “an accidental injury ... arising out of and in the course of employment without regard to fault ....” The Act specifically excludes from compensation injuries due to the “willful intention of the employee to injure or kill himself .... ” When a party raises an affirmative defense, such as Tippah’s argument that Smith intentionally injured himself, the burden of proof “rests squarely on the shoulders of the one who expects to avoid liability by that defense.” In this case, the AJ and Commission found that Tippah had met its burden by presenting evidence that Smith was under investigation for murder, that Smith was not acting as jovial as usual on the day of the accident, that Smith had been asked to come down from the bucket after Capíes arrived, that several witnesses had seen Smith with his hands on the primary and neutral lines after the accident occurred, and that Smith could not remember how the accident occurred. However, neither Crawford, Ca-píes, Braddock, nór Stroupe actually witnessed the accident itself, and, thus, there was no direct evidence regarding how Smith came to touch the neutral and primary lines. Furthermore, the fact that Smith cannot remember exactly what happened leading up to his injuries is not evidence that he intentionally grabbed the power lines.

¶ 14. We find that the AJ’s and Commission’s decisions are not based on substantial evidence, but rather are based on assumptions and speculation regarding how the accident occurred. These include assumptions that Smith was depressed or suicidal and that Smith believed Capíes was at the work site to cause trouble for Smith. These assumptions are not supported by any of the testimony presented. There was simply insufficient evidence to support a finding that Smith intentionally grabbed both the primary and neutral lines in an attempt to commit suicide. The burden of proof was on Tippah to show that Smith intentionally injured himself. Tippah failed to do so. Therefore, we find that the Commission erred in finding that Smith intentionally and willfully injured himself and that his injuries were not com-pensable.

CONCLUSION

¶ 15. For the foregoing reasons, we reverse the decisions of the Workers’ Compensation Commission and the Court of Appeals and remand this case to the Commission for a determination of benefits.

¶ 16. REVERSED AND REMANDED.

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

COLEMAN, Justice,

dissenting:

¶ 17. Based on the evidence and testimony presented, it is my opinion that the Commission’s decision was supported by substantial evidence; therefore, I respectfully dissent.

¶ 18. Under the Mississippi Workers’ Compensation Act, an employee may be entitled to compensation for disability from an injury “arising out of and in the course of employment.” Miss.Code Ann. § 71-3-7(1) (Supp.2013). However, “[n]o compensation shall be payable ... if it was the willful intention of the employee to injure or kill himself or another.” Miss.Code Ann. § 71-3-7(4) (Supp.2013). In the instant case, Smith was injured on the job while working for Tippah Electric Power Association, and he filed a petition to controvert with the Mississippi Workers’ Compensation Commission. Tippah responded that Smith was not entitled to compensation, claiming he had injured himself intentionally in an attempt to commit suicide. The administrative judge found sufficient evidence to support Tip-pah’s position and held that Smith’s injuries were not compensable. The Commission affirmed, as did the Court of Appeals.

¶ 19. The majority correctly cited the standard of review for appeals from the Workers’ Compensation Commission but, because the instant case turns on whether the Commission’s decision was supported by substantial evidence, it is worth repeating the standard.

The standard of review in a workers’ compensation appeal is limited to whether the Commission’s decision is supported by substantial evidence. Walker Mfg. Co. v. Cantrell, 577 So.2d 1243, 1245-47 (Miss.1991). “The Workers’ Compensation Commission is the trier and finder of facts in a compensation claim, the findings of the Administrative Law Judge to the contrary notwithstanding.” Smith v. Container Gen. Corp., 559 So.2d 1019, 1021 (Miss.1990). This Court will reverse an order of the Workers’ Compensation Commission only where such order is clearly erroneous and contrary to the overwhelming weight of the evidence. Vance v. Twin River Homes, Inc., 641 So.2d 1176, 1180 (Miss.1994).

Lott v. Hudspeth Ctr., 26 So.3d 1044, 1048 (¶ 12) (Miss.2010). The Court has provided the following definition of substantial evidence:

Substantial evidence, though not easily defined, means something more than a mere scintilla of evidence, [and] it does not rise to the level of a preponderance of the evidence. It may be said that it means such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Substantial evidence means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred.

Miss. Dep’t of Human Servs. v. McNeel, 869 So.2d 1013, 1018 (¶ 19) (Miss.2004) (quoting Delta CMI v. Speck, 586 So.2d 768, 773 (Miss.1991) (internal citations omitted)). Because no one witnessed the incident, the majority maintains that “there was no direct evidence” of how Smith came in contact with the lines and concludes that the Commission’s decision was “based on assumptions and speculation regarding how the accident occurred.” (Maj.Op.13-14.) It is undisputed that no one saw Smith in the seconds preceding the accident, and no one could testify as to how Smith came in contact with both the primary and neutral lines, which are several feet apart. However, based on the testimony and evidence" presented, it is my opinion that there is substantial evidence in the record from which it could be “reasonably inferred” that Smith intentionally grabbed the lines.

¶ 20. Smith had worked for Tippah for approximately sixteen years at the time of the accident. He had been trained on the job, he had attended lineman training classes, and he attended safety classes every other month. Smith considered himself to be an experienced lineman, and he was considered by his coworkers and employers to be a good lineman. Smith testified that “he knew what would result if one were to touch a hot phase and a neutral phase at the same time.” Although Smith claims that he did not touch the neutral line, the evidence indicates that he unquestionably did. Several witnesses testified that they saw Smith with one hand on the neutral line and one hand on the primary line immediately after the accident. The palms of Smith’s gloves were burned, indicating that he was holding both lines, contrary to Smith’s testimony that he raised up and bumped into the line. Smith was wearing leather gloves, but he admitted he should have been wearing rubber gloves, which is required when coming within two feet and one inch of the primary line.

¶ 21. The distance between the primary line and neutral line was approximately three feet and seven inches, making it unlikely that Smith would be accidentally in contact with both lines simultaneously. Michael Glen Weltzheimer, assistant to the vice president of safety and loss control for the Electric Power Association of Mississippi, investigated the scene and took the measurements after the incident. He testified at the hearing. The administrative judge wrote:

[Weltzheimer] also took measurements at the scene. This was to see if the line met code which he opined that it did. He said that the distance between the primary and the neutral at the sag was 3 feet 7 inches. He said a perfect sag would be 4 feet. Closer to the pole the distance between the line was 3 feet 9 inches, closer to 4 feet. He testified that he had not heard of other situations where someone had come in contact with both wires with [his] hands or arms. He has heard of instances where one body part came in contact with one and some piece of equipment came in contact with the other.

See Smith, 138 So.3d at 940.

¶ 22. Finally, Smith was under investigation for murder, and law enforcement officials had obtained a DNA sample from him days prior to the incident. Several coworkers testified that Smith’s demeanor was different on the day of the incident, and he was not joking around as he usually did. Another said there had been tension among the crew for the past two weeks. Danny Capíes arrived at the site to take Smith in for a drug test, because his employer suspected Smith was using drugs. The fact that Smith’s employer, who had known him for sixteen years, was suspicious that he had been using drugs is further indication that Smith had been acting differently.

¶ 23. Certainly, it would be preferable to have more eyewitness testimony, but I cannot say that the Commission’s decision was “clearly erroneous and contrary to the overwhelming weight of the evidence.” See Lott, 26 So.3d at 1048 (¶ 12) (quoting Vance, 641 So.2d at 1180). In my opinion, the evidence presented in support of Tip-pah’s position that Smith intentionally grabbed the lines is certainly more than a “mere scintilla” and provides “a substantial basis of fact from which the fact in issue can be reasonably inferred.” McNeel, 869 So.2d at 1018 (¶ 19) (quoting Delta CMI, 586 So.2d at 773). Because the standard of review is limited to whether the Commission’s decision is supported by substantial evidence, and I believe it was, I would affirm.

RANDOLPH, P.J.,.AND PIERCE, J., JOIN THIS OPINION.

      . Smith v. Tippah Elec. Power Ass’n, 138 So.3d 934 (Miss.Ct.App.2013).

        . Lott v. Hudspeth Center, 26 So.3d 1044, 1048 (Miss.2010) (citation omitted).

      . Short v. Wilson Meat House, LLC, 36 So.3d 1247, 1251 (Miss.2010) (citations omitted).

      . Lott, 26 So.3d at 1048 (citation omitted).

      . Miss.Code Ann. § 71 — 3—3(b) (Rev.2011).

      . Miss.Code Ann. § 71-3-7(4) (Supp.2013).

        .Marshall Durbin Cos. v. Warren, 633 So.2d 1006, 1009 (Miss.1994) (citation omitted).

      . The administrative judge and the Court of Appeals outlined the testimony presented in detail. See Smith v. Tippah Elec. Power Ass'n, 138 So.3d 934 (Miss.Ct.App.2013).


text:
    Eduardo A. FLECHAS v. Alyce Pearl PITTS.
    No. 2013-IA-00839-SCT.
    Supreme Court of Mississippi.
    May 8, 2014.
   ORDER

The motion for reconsideration is denied. The en banc Court’s order filed herein on December 20, 2013, is vacated and withdrawn, and this order is substituted in lieu thereof.

This matter is before the Court en banc on the Motion for Immediate, Extraordinary Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence and Related Legal Issues filed by Petitioner; the Motion to Dismiss and to Strike the Motion for Immediate, Extraordinary Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence and Related Legal Issues, or to Partially Strike filed by Respondent; Respondent’s Rule 48A(d) Mississippi Rules of Appellate Procedure Motion for Access to Sealed Document, and all responses and rebuttals.

By orders dated March 27, 2013, and June 5, 2013, separate panels of this Court denied Petitioner’s requests for interlocutory appeal or writ of prohibition as to orders entered by the Lincoln County Chancery Court in Cause No.2011-0478. Petitioner then asked for reconsideration of these decisions. By order dated June 20, 2013, this Court stayed all proceedings in Cause No.2011-0478, and ordered responses from Respondent and the Lincoln County Chancery Court. After consideration, this Court entered an order on August 29, 2013, which allowed the Lincoln County Chancery Court to enter an order resulting from a hearing held in the chan-eery court on June 20, 2013. This order was entered by the chancery court on September 13, 2013.

After consideration of the pleadings, the transcript of the June 20, 2013, hearing, and the September 13, 2013, order, the Court finds that the Motion for Immediate, Extraordinary Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence and Related Legal Issues should be granted; that, pursuant to Mississippi Rule of Appellate Procedure 21(d), this Court should dispose of this motion for extraordinary relief in an expedited manner under Mississippi Rule of Appellate Procedure 5(e), and that the Court further finds as follows:

1.With respect to the Order of September 13, 2013, the chancery court stated “[t]his Order does not supersede or vacate, in whole or in part, any of the court’s previous orders,” requiring this Court to address the subpoena duces tecum of May 30, 2012 (“Subpoena”); the chancery court’s Order of February 1, 2013 (“Order 1”); the chancery court’s Order of May 23, 2013 (“Order 2”); and the chancery court’s order of September 13, 2013 (“Order 3”).

2. The subpoena is at the core of this dispute. The subpoena was served on an attorney for a party and not the party or a witness. The subject matter of the subpoena includes all of Flechas’s personal files and records regarding all aspects of his representation of Troy Pitts. These include “all files, records, electronic communications, written or any documents ... including ... all divorce files, personal injury defense files, estate files, Will or trust files, [and] deed preparation files.” See Subpoena. At the time the subpoena was served, the only proceeding pending was a will contest between competing wills advanced by Alyee Pitts and Todd Pitts.

3. Flechas sought to withdraw as attorney for Todd Pitts by Motion of April 4, 2012, which motion was denied by the chancery court. While this issue is not before the Court, it is self-evident that Flechas’s ability to represent Todd Pitts has been compromised by the ongoing subpoena litigation, or a trial within a trial, and the chancery court should revisit this. See Mississippi Rule of Professional Conduct 3.7 (Lawyer as a Witness). See also Graves v. Maples, 950 So.2d 1017 (Miss.2007).

4. In response to the subpoena, Fle-chas consistently has raised issues of relevance and privilege, both work-product and attorney-client. See Flechas’s “Motion Quash, or in the Alternative, for Protective Order,” and his “Answer and Defense to the Petition for Citation of Contempt, Renewed Motion to Quash or, in the Alternative, for a Prohibitive Order, and Motion to Stay.” Flechas arguably did not sufficiently set out in detail which documents were privileged and why; however, as explained below, Fle-chas was placed in an almost impossible situation.

5. In Order 1, the chancery court denied Flechas’s motion to quash. The chancery court found that no privilege attached to any of the documents because the information subpoenaed under Rule 45 of the Mississippi Rules of Civil Procedure was not subject to Mississippi Rules of Civil Procedure 26(b)(3), 37(a), and Uniform Circuit and County Court Rule 1.10(C), as the chancery court found the protections in these rules apply only to “discoverable information.” See Order 1. In addition, the chancery court found none of Flechas’s personal files and documents were privileged. Id. Instead, the chancery court found the files and documents were subject to an exception to the privilege rules under Rule 502(d)(2) of the Mississippi Rules of Evidence, which provides an exception to the rules of privilege when parties claim through the same deceased client. See Order 1. Thus, this order put Flechas in a position where he would have to turn over every single document in his possession relating to his representation of Troy Pitts, without regard to the relevance of the information or whether the subpoenaed documents contained discoverable or other protected work-product information. Indeed, Flechas was in the almost-impossible situation of having to produce a privilege log that included nearly every document in his personal files relating to his representation of Troy Pitts in multiple matters.

6. A subpoena duces tecum is subject to the Mississippi Rules of Civil Procedure. Because the Mississippi Rules of Civil Procedure are modeled on the Federal Rules of Civil Procedure, this Court has “looked to the federal interpretations of our state counterparts as persuasive authority.” Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1216 (Miss.2001) (citations omitted). Discussing the relation of Federal Rule of Civil Procedure 45 to the federal rules related to discovery, Wright and Miller state “[t]he federal courts, in a great multitude of cases, announced that the discovery rules constituted an integrated mechanism and that [the discovery rules and Rule 45] must be read in pari materia.’ ” 9A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2452 (3d ed.2013) (citing Hickman v. Taylor, 329 U.S. 495, 505, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (“It matters little at this later stage whether Fortenbaugh fads to answer interrogatories filed under Rule 26 or under Rule 33 or whether he refuses to produce the memoranda and statements pursuant to a subpoena under Rule 45 or a court order under Rule 34. The deposition-discovery rules create integrated procedural devices.”)). Indeed, this view is consistent with prior decisions from this Court. See, e.g., West v. West, 891 So.2d 203, 216 (Miss.2004) (“We reverse the chancellor’s decision to quash Debbie’s subpoenas duces tecum and remand to the trial court ... [to rule] as to each of twenty-nine categories of financial information [requested for productions in the subpoena].... We note Debbie is still bound by the rules of relevance in regard to discovery ....”) (footnote omitted).

7. This Court has held that, in order to obtain a subpoena duces tecum, “ ‘[t]he petition must state sufficient facts to show that the papers and books sought are material as evidence in the case, and to show their purpose and materiality, that a judge may protect the witness against unnecessary or irrelevant production.’ ” Griffin v. State, 494 So.2d 376, 380 (Miss. 1986) (quoting Williams v. State, 239 Miss. 839, 125 So.2d 535, 535 (I960)); Bd. of Review v. Williams, 195 Miss. 618, 15 So.2d 48, 50 (1943) (“The order will not issue unless the books and papers are pertinent, relevant and material to the issues then being tried, and the application or petition must show these facts.”). Though Williams cites “pre-rules” cases, the underlying legal parameters for subpoenas are carried forward in the Mississippi Rules of Civil Procedure. See Mitcham v. III. Cent. Gulf R. Co., 515 So.2d 852, 857 (Miss.1987) (noting the protections of Rule 26(b)(3) still apply to documents subpoenaed under Rule 45); Miss. R. Civ. P. 45 cmt. (“The force of a subpoena for production of documentary evidence generally reaches all documents under the control of the person ordered to produce, saving questions of privilege or unreasonableness.”) (emphasis added).

8. Rule 45(d)(1)(A) deals with situations when a motion to quash a subpoena should be granted and states, “[o]n timely motion, the court from which a subpoena was issued shall quash or modify the subpoena if it (i) fails to allow reasonable time for compliance; (ii) requires disclosure of privileged or other protected matter and no exception or waiver applies, (iii) designates an improper place for examination, or (iv) subjects a person to undue burden or expense.” (Emphasis added.) Again, the chancery court’s Order 1 found all of Fle-chas’s personal files and documents related to his representation of Troy Pitts were excepted under Rule 502(d)(2), and none of the protections of Rule 26(b) applied.

9. The chancery court was required to find whether the subpoena at issue sought irrelevant or privileged information under the same standards as set forth in Rule 26(b) and other discovery rules. Again, the will contest is the only issue before the chancery court. No showing has been made that the documents subpoenaed have anything to do with the only issue ultimately before the chancery court: “devisavit vel non ” or “will or no will.” See Subpoena.

10. With regard to Flechas’s privilege argument, the chancery court found all of the information subject to the subpoena was excepted from any privilege under Mississippi Rule of Evidence 502(d)(2), which provides an exception to the rules of privilege when parties claim through the same deceased client. In Mississippi United Methodist Conference v. Brown, this Court held blanket statements regarding whether or not documents may or may not be compelled in discovery procedures were not sufficient and “[o]nly an in-camera inspection and subsequent document-by-document analysis, accompanied by the corresponding rule or exception, will meet the requirements for such a determination.” Mississippi United Methodist Conference v. Brown, 911 So.2d 478, 481-82 (Miss.2005). Further, Rule 502(d)(2) still restricts disclosures to relevant communications. See M.R.E. 502(d)(2). All this Court has before it is the chancery court’s blanket statement that all of the subpoenaed documents are excepted from privilege because of Rule 502(d)(2). Facially, it does not appear that every single document subject to the subpoena would be excepted from privilege because of Rule 502(d)(2). Further, the privilege analysis also must take into account the work product and client communications of an attorney.

11. This Court has stated the work-product doctrine “protects an attorney’s thoughts, mental impressions, strategies, and analysis from discovery by opposing counsel.” Hewes v. Langston, 853 So.2d 1237, 1245 (Miss.2003) (citing Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393, 91 L.Ed. 451 (1947)). “ ‘Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and mental impressions of an attorney.’ ” Hewes 853 So.2d at 1245 (quoting Hickman, 329 U.S. at 510, 67 S.Ct. 385). The work-product doctrine still does not shield all documents from discovery. Mississippi Rule of Civil Procedure 26(b)(3) explains the work-product doctrine as follows:

(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indem-nitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

Hewes, 853 So.2d at 1245. Thus, to obtain discovery of an attorney’s work product, the moving party has the burden to show it has a substantial need for the information and it would be an undue hardship to obtain the information by other means. See Roman Catholic Diocese of Jackson v. Morrison, 905 So.2d 1213, 1247 (Miss.2005). Rule 26 “also places responsibility on the trial court when making such determinations to ‘protect against disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney or other representatives of a party concerning the litigation.’ ” Hewes, 853 So.2d at 1266. See also Mitcham v. Ill. Cent. Gulf R. Co., 515 So.2d 852, 857 (Miss.1987) (noting the protections of Rule 26(b)(3) still apply to documents subpoenaed under Rule 45). Because the subpoena at issue sought all Flechas’s files and records regarding his representation of Troy Pitts, his work product certainly was subject to the subpoena,

12. The chancery court, in its Response to the Supreme Court, dated July 1, 2013, first presented the “crime-fraud” exception as a basis for ruling against Flechas’s privilege argument. This has not been raised by Alyee, nor was it raised in Order 1. A party seeking documents under the crime-fraud exception must first make a prima facie case “for getting an in camera review of [the] disputed documents.” Hewes, 853 So.2d at 1247. Hewes further instructs that mental impressions contained in the attorney work product are obtainable only in “rare” situations. Id.

13. In her response to the Supreme Court’s Order of June 20, 2013, Alyce, for the first time disclosed the filing of a Petition for Discovery and Recovery of Estate Assets, for Disgorgement of Fees, to Disqualify Attorney and for Other Relief (“Disgorgement Petition”), filed on March 4, 2013. The subpoena filed May 30, 2012, appears to be related to this subsequent filing; however, it should be noted this was not filed as a separate action. Further, it makes claims on behalf of the estate of Troy Pitts. As a threshold, the will contest must first conclude and the executor of the estate must be determined. After this determination, the executor may then decide whether to pursue the allegations contained in the Disgorgement Petition on behalf of the estate.

14. In Order 3, the chancery court set out a procedure for recovering privileged documents of Flechas in the chancery clerk’s office. The procedures for recovering privileged documents are limited to mental impressions/memoranda, yet the chancery court still has not determined whether the subpoenaed documents are relevant to the will contest. Additionally, communications by and between Flechas and Troy should have been included.

15. Following the denial of the Motion to Quash, Alyce filed a Petition for Citation of Contempt against Flechas for failure to respond to the subpoena. As stated above, Flechas was facing an almost impossible situation; nonetheless, he made no effort to comply, thus, the chancellor’s award of attorney fees was appropriate in Order 2.

IT IS THEREFORE ORDERED:

a. That Flechas’s Motion for Immediate, Extraordinary Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence and Related Legal Issues is hereby granted;

b. That the chancery court’s Order 1 of February 1, 2013, is hereby reversed and rendered, and that the chancery court’s Order 3 of September 13, 2013, is hereby vacated;

c. That the chancery court’s Order 2 of May 23, 2013, is hereby affirmed as to finding Flechas to be in contempt of court and requiring him to pay attorney fees of $692.50, but is otherwise reversed and vacated;

d. That the chancery court shall first review whether the request contained in the subpoena seeks documents relevant under Rule 26 to the only issue before the chancery court at this time, devisavit vel non;

e. That Flechas shall produce all documents deemed relevant to the will contests by the chancery court and create a new privilege log, listing which of the relevant documents he believes are privileged;

f. That the chancery court shall then conduct an in camera, document-by-document review of the documents claimed privileged, explaining the corresponding rule or exception which may compel the production of the subpoenaed documents;

g. The chancery court shall conduct further hearings as are required to carry out the directions of this Order; and

h. That the chancery court defer consideration of further sanctions until the discovery issues are fully resolved.

IT IS FURTHER ORDERED:

a. That the stay entered by this Court on June 20, 2013, and continued on August 29, 2013, is vacated effective upon the issuance of this Court’s mandate;

b. That the Motion to Dismiss and to Strike the Motion for Immediate, Extraordinary Relief, and Petition for Reconsideration and/or Rehearing of Previous Ruling Based on Newly Discovered Evidence and Related Legal Issues, or to Partially Strike is hereby denied;

c. That the Respondent’s Rule 48A(d) Mississippi Rules of Appellate Procedure Motion for Access to Sealed Document is hereby denied; and

d. That the Respondent is taxed with all costs of this appeal.

SO ORDERED.

/s/ William L. Waller, Jr. WILLIAM L. WALLER, JR., CHIEF JUSTICE FOR THE COURT