author: IRVING, P.J.,

text:
    Erika L. FELTER, Appellant v. FLOORSERV INC., The Employers’ Fire Insurance Company, and One Beacon Insurance, Appellees.
    No. 2010-WC-01793-COA.
    Court of Appeals of Mississippi.
    June 19, 2012.
    Rehearing Denied Nov. 27, 2012.

      Erika L. Fetter, appellant, pro se.
    Chadwick L. Shook, Louie F. Ruffin, Hattiesburg, attorneys for appellees.
    Before IRVING, P.J., ISHEE and RUSSELL, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. On February 1, 2007, Erika L. Fel-ter filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission) alleging that she had sustained injuries to her neck, upper and lower back, head, right and left knees, left hip, and left arm and hand as a result of a car accident that occurred while she was working as a territory manager for FloorServ Inc. (FloorServ). A hearing was held before an administrative judge (AJ), who found that Fetter had suffered a work-related injury on March 27, 2006, and had reached maximum medical improvement (MMI) from that injury on August 30, 2006. Additionally, the AJ found that Fetter’s medical treatment was reasonable and necessary through August 30, 2006. However, because she did not seek employment after her MMI date, the AJ determined that Fetter had failed to demonstrate a loss of wage-earning capacity and was not entitled to additional indemnity or medical benefits from FloorServ.

¶ 2. Fetter appealed the AJ’s decision to the full Commission, which dismissed her appeal as untimely. Fetter appealed the Commission’s decision to the Adams County Circuit Court. The circuit court affirmed the AJ’s denial of additional benefits and the Commission’s dismissal of Fetter’s appeal as untimely.

¶ 3. Feeling aggrieved, Fetter appeals and argues that: (1) the Commission erred in dismissing her appeal; (2) the AJ’s decision was not based on substantial evidence; and (3) she should have been able to present her case to a jury in circuit court.

¶ 4. Finding no error, we affirm.

FACTS

¶ 5. While working as a territory manager for FloorServ, Fetter sustained injuries in a car accident. Fetter testified that because of the pain that she has experienced since the car accident, she can no longer participate in normal activities without assistance from her husband. Fetter further testified that she had returned to work one week after the accident and had continued to work until the pain from her injuries prevented her from working.

¶6. On the day of the ear accident, Fetter presented to the Natchez Regional Medical Center’s emergency room. She complained of pain “all over,” with specific complaints of neck and abdominal pain. Fetter underwent an abdominal and pelvic CT scan and x-rays of her chest, cervical spine, pelvis, left hip and knee, and lumbar spine. Fetter’s CT scans and and x-rays showed no abnormalities, and the medical center released Fetter to return home.

¶ 7. Following the accident, Fetter saw several other doctors. On April 2, 2006, Fetter presented to Dr. Ibrahim Seki at Riverpark After Hours Clinic, complaining of severe back pain. At this visit, Dr. Seki diagnosed Fetter with acute myofascial strain of the lumbar spine and possible degenerative-disc disease. Fetter returned to Dr. Seki for an MRI of the lumbar spine on April 8, 2006, which showed minimal changes at the L4-5 and L5-S1 areas. Dr. Seki ultimately diagnosed Fetter with low-back pain and possible degenerative-disc disease.

¶ 8. Dr. Seki referred Fetter to Dr. Passman at Passman-Haimson Orthopedic Sports and Rehab. Dr. Passman ordered a second lumbar MRI, which showed no abnormalities. Dr. Passman concluded that Felter’s “nerves might be the source of her problems.” He also indicated that he did not believe that Felter needed treatment from an orthopedist or a neurosurgeon but that she might benefit from treatment from a psychiatrist.

¶ 9. On her own accord, Felter presented to Dr. J.H. Fairbanks. Dr. Fairbanks diagnosed Felter with thoracic strain and possible sciatica. He also recommended that she attend physical therapy sessions and ordered an MRI of her thoracic spine. Ultimately, Dr. Fairbanks concluded that Felter was temporarily totally disabled. However, he noted that Felter’s MRI did not indicate the need for surgical intervention, and he determined that she had reached MMI on June 21, 2006. Dr. Fairbanks also referred Felter to Dr. Joseph Turnipseed, a pain-management specialist.

¶ 10. Dr. Turnipseed first saw Felter on May 81, 2006. She presented to him with complaints of mid-back pain, low-back pain, and left-leg pain with numbness. On June 27, 2006, Dr. Turnipseed released Felter to return to light-duty work. On September 12, 2006, Felter returned to Dr. Turnipseed’s office, complaining of neck pain. However, Dr. Turnipseed could not connect Felter’s neck pain to her on-the-job injury.

¶ 11. At FloorServ’s request, Dr. Anthony Iappolo, a neurosurgeon, examined Felter on August 30, 2006. Dr. Iappolo found that Felter’s MRI results did not support her complaints. During the examination, Dr. Iappolo discovered a spinal L4 protrusion but determined that it was not related to Felter’s back-pain complaints. He also did not find any herniated discs. Further, Dr. Iappolo determined that Fel-ter’s medical treatment up to August 30, 2006, had been reasonable and necessary. However, he saw no need for further treatment except possibly a nerve-conduction study to investigate Felter’s complaints of radiating pain on the left side of her body. Dr. Iappolo diagnosed Felter with chronic cervical and lumbar pain of unknown origin.

¶ 12. FloorServ also referred Felter to Dr. W. Lyn Stringer, a neurosurgeon, for evaluation. Dr. Stringer examined Felter on September 17, 2007. Based on Felter’s medical history, a review of past radiological films, and his examination of Felter, Dr. Stringer diagnosed her with post-traumatic cervical, thoracic, and lumbar-spine pain of uncertain origins. Dr. Stringer noted a degenerative-disc bulge at the T8-T9 area, which was present prior to the accident, and also noted degenerative changes in the lumbar spine during the year following the accident.

¶ 13. On January 1, 2009, the AJ ruled that Felter had reached MMI on August 30, 2006, and that she was not entitled to additional indemnity or medical benefits from FloorServ. The AJ also ruled that Felter had failed to prove that she suffered a loss of wage-earning capacity. On February 19, 2009, the AJ allowed Felter’s attorney to withdraw from the case and gave Felter thirty days “to obtain representation by another attorney or continue prosecution of [the] claim without legal representation.” Felter proceeded pro se and appealed the AJ’s order to the full Commission. The Commission dismissed Felter’s appeal as untimely.

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

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 15. Pro se litigants are “held to the same rules of procedure and substantive law as represented parties.” Buckel v. Chaney, 47 So.3d 148, 153 (¶ 10) (Miss.2010) (quoting Dethlefs v. Beau Maison Dev. Corp., 511 So.2d 112, 118 (Miss.1987)). Additionally, “[i]t is the duty of the appellant to provide authority in support of an assignment of error.” Jones v. Howell, 827 So.2d 691, 702 (¶ 40) (Miss.2002) (citations omitted). Because Felter has failed to provide authority to support her contentions of error, the issues that she presents on appeal are procedurally barred. Id. Notwithstanding the procedural bar, Felter’s arguments lack merit.

1. Commission’s Decision

¶ 16. Felter argues that the Commission erred in dismissing her appeal as untimely. Specifically, Felter contends that because the AJ gave her thirty days from February 19, 2009, to either hire an attorney or proceed pro se, her appeal was timely because it was filed within those thirty days.

¶ 17. Mississippi Code Annotated section 71-3-47 (Rev.2011) states that an AJ’s decision to grant or deny a compensation award “shall be final unless[,] within twenty (20) days[,] a request or petition for review by the full [C]ommission is filed.” Compliance with section 71-3-47 is required for the Commission to have jurisdiction to hear the appeal. Roberson v. LFI Fort Pierce, Inc., 3 So.3d 788, 790 (¶ 6) (Miss.Ct.App.2008). If the claimant fails to file a petition for review within twenty days, the claimant must present a set of “ ‘unique facts that would permit [the] petition to be considered constructively filed’ within the twenty-day time period .... ” Id. at (¶ 7) (quoting Ford v. KLLM, Inc., 909 So.2d 1194, 1196 (¶5) (Miss.Ct.App.2005)).

¶ 18. Neither the Commission’s internal rules nor section 71-3-47 provide a method for calculating time. However, the Mississippi Supreme Court has considered a claimant’s appeal to be constructively filed within the time limit where the Commission’s internal procedures resulted in prejudice to the claimant. Williams v. Furniture Land, 637 So.2d 191, 192 (Miss.1994). In Williams, the AJ entered an amended order on November 20, 1991. Id. at 191. The Commission stamped the claimant’s petition for review as “received” on December 11, 1991. Id. The employer and carrier filed a motion to dismiss the petition as untimely, which the Commission granted. Id. The circuit court affirmed the Commission’s decision and dismissed the claimant’s appeal. Id. In reversing the circuit court’s judgment, the supreme court noted that the Commission’s procedure for collecting mail “resulted in a loss of one day which could not be anticipated by a party mailing in pleadings to be filed with the Commission.” Id. (internal quotations omitted). Thus, “a one day only allowance may be made to compensate for internal procedures so as not to penalize claimants for matters beyond their control.” Id. at 192. Accordingly, the supreme court held that the claimant’s petition was timely filed. Id.

¶ 19. Here, the AJ entered her order on January 9, 2009. According to section 71-3-47, Felter had twenty days from January 9, 2009, to appeal the AJ’s decision to the Commission. Therefore, Fel-ter’s deadline to file her appeal was January 29, 2009. Felter filed her appeal on March 4, 2009 — thirty-four days after the statutory deadline. Felter does not contend that her petition should be considered constructively filed based on some prejudice suffered as a result of the Commission’s internal procedures. Accordingly, the Commission did not err in dismissing Felter’s appeal as untimely. This issue is without merit.

2. AJ’s Decision

¶ 20. Felter asserts that the AJ erred by concluding that she had reached MMI, that she had failed to demonstrate a loss of wage-earning capacity, and that she was not entitled to additional indemnity or medical benefits from FloorServ. An appellate court’s “review of a decision of the ... Commission is limited to determining whether the decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency ..., or violated [the claimant’s] constitutional or statutory rights.” Gregg v. Natchez Trace Elec. Power Ass’n, 64 So.3d 473, 475 (¶ 8) (Miss.2011) (citing Short v. Wilson Meat House, LLC, 36 So.3d 1247, 1250 (¶ 17) (Miss.2010)). As the Commission is the ultimate fact-finder and judge of witness credibility in workers’ compensation cases, an appellate court may not reweigh the evidence that was presented to the Commission. Id.

¶ 21. Felter insists that she has yet to reach MMI. However, the AJ ruled that Felter had reached MMI on August 30, 2006. The AJ’s conclusion was based on her review of the testimony of the physicians who examined Felter. Dr. Fairbanks opined to a reasonable degree of medical probability and certainty that Fel-ter reached MMI on June 21, 2006, and that she suffered no permanent impairment. Dr. Iappolo placed Felter at MMI on August 30, 2006, and noted that there was no need for further treatment. While Felter’s doctors had differing opinions regarding when Felter reached MMI, there is no evidence that Felter has yet to reach MMI as she contends. Thus, we cannot say that the AJ erred in resolving the MMI dispute in favor of the later date.

¶22. There is also no evidence that Felter’s continuing back pain is connected to her work-related injury. Dr. Turnip-seed could not relate Felter’s pain to her work-related injury within a reasonable degree of medical probability and certainty. The other physicians did not offer an opinion regarding a connection between Felter’s on-the-job accident and her alleged back pain. Therefore, the AJ did not err in finding that Felter was not entitled to additional medical benefits.

¶ 23. Felter also presented no evidence to demonstrate a loss of wage-earning capacity. In fact, she admitted during the hearing before the AJ that she had not looked for alternative employment since leaving her position at FloorServ. Based on these facts, we hold that the AJ’s decision is supported by substantial evidence. This issue is without merit.

3. Jury Trial

¶ 24. Felter contends that she should have been granted a jury trial when she appealed her case to the circuit court. Our supreme court has long held that jury trials are not required in standard workers’ compensation cases. See Walters v. Blackledge, 220 Miss. 485, 511, 71 So.2d 433, 442 (1954) (explaining that “[a]s between employee and employer, the [Workers’ Compensation] [A]ct abolishes all right of recovery in ordinary cases ... and[,] therefore[,] leaves nothing to be tried by [a] jury”). Consequently, this issue is without merit.

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

LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, MAXWELL, RUSSELL AND FAIR, JJ., CONCUR. BARNES AND ROBERTS, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . FloorServ Inc. is listed in both the appellant’s and appellees’ briefs as FloorServ Inc. Flowever, we will follow the spelling found in the Clerk’s papers.

      . The record does not contain any of Felter’s medical records. Our explanation of Felter's doctors' diagnoses comes from the summation of medical records found within the AJ's order.

      . Dr. Passman's first name is not found in the record.


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    W.R. BERKLEY CORPORATION, Union Standard Insurance Group, Union Standard Insurance Company, and Great River Insurance Company, Appellants/Cross-Appellees v. REA’S COUNTRY LANE CONSTRUCTION, INC., Appellee/Cross-Appellant.
    No. 2009-CA-01223-COA.
    Court of Appeals of Mississippi.
    July 30, 2013.
    Rehearing Denied Jan. 7, 2014.
    Certiorari Denied May 8, 2014.

      Robert P. Thompson, Ridgeland, Thomas T. Buchanan, Laurel, Caryn Anlage Milner, Ridgeland, attorneys for appellants.
    Clyde H. Gunn III, Christopher C. Van Cleave, Biloxi, attorneys for appellee.

      Before IRVING, P.J., ROBERTS and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. This case involves a dispute between an insured, who had been sued, and its insurance company, which the insured in turn sued for denying it a defense. The controlling issue is whether the underlying lawsuit against the insured triggered the insurance company’s duty to defend. Under the policy, the duty to defend only arose if there were allegations of “property damage” proximately caused by an “occurrence,” which the policy clearly defined as an “accident.” Our review of the complaint against the insured shows the plaintiff alleged the damage to her real property was caused by intentional acts — not by “accident.” Thus, under the policy terms, the insurance company had no duty to defend.

¶2. Because it had no duty to defend, we must reverse the $193,684.95 judgment against the insurance company for breach of contract and bad-faith denial of coverage.

Background

I. Underlying Lawsuit

¶ 3. Margaret Broom owned real property in Wayne County, Mississippi. In 1997, she entered into a $100,000 contract with Kent Excavating for Kent to buy dirt for a Mississippi Department of Transportation (MDOT) project. The contract allowed Kent to dig large pits on Broom’s property. Once the dirt was removed, Kent would create ponds by replacing the topsoil, grading the slopes of the pits, and planting grass. Kent would also grade the access roads to the ponds and cover them with gravel.

¶ 4. Kent never completed the Broom contract. Kent also defaulted on its MDOT contract, so Kent’s bonding company stepped in and assumed Kent’s obligations, including the Broom contract. The bonding company hired a contractor, J.B. Talley & Company, who in turn hired Rea’s Country Lane Construction, Inc., to work on the uncompleted contracts. W.C. Pitts, L & J Construction, Inc., and L & J Trucking were then hired as subcontractors. According to Broom, three pits were dug — but not to the specifications in the Kent contract. Nor was Broom ever properly compensated.

¶ 5. In January 2001, Broom sued Kent, Kent’s bonding company, J.B. Talley & Company, Rea’s, L & J Construction, and L & J Trucking. Broom asserted claims of breach of contract, negligence, gross negligence, conversion, equitable relief (i.e., court-ordered remediation of Broom’s property), unjust enrichment, and fraud.

II. Third-Party Complaint

¶ 6. Rea’s liability insurer, Great River Insurance Company, took the position that, under the commercial general liability (CGL) policy, it had no duty to defend and/or indemnify Rea’s against Broom’s claims. So Rea’s in turn filed a third-party complaint against Great River. It is this third-party claim that is the subject of this appeal.

¶ 7. Rea’s third-party complaint was tried in the Wayne County Chancery Court, without a jury. In his final judgment, Judge Larry Buffington, who had been appointed special chancellor, stated he was “satisfied that [Broom’s] complaint alleged damages that occurred as a result of an ‘occurrence’ pursuant to the policy.” He held Great River had breached its duty to defend and awarded Rea’s $193,684.95. These damages included Rea’s expenses to defend Broom’s lawsuit, Rea’s $60,000 settlement with Broom, and Rea’s attorney’s fees and expenses incurred in suing Great River.

III. Appeal

¶ 8. On appeal, Great River argues Rea’s failed to show Broom’s lawsuit sought “property damages” caused by an “occurrence,” which the CGL policy defines as an “accident.” Without allegations of an accident, Great River argues Rea’s failed to prove its duty to defend was triggered. Alternatively, Great River argues, even if the complaint could be construed to have alleged “property damage” caused by an “occurrence,” certain express policy exclusions applied, meaning there was no coverage.

A Denial of Great River’s Motions

¶ 9. Citing these policy-related defenses, Great River asserts the chancellor erroneously denied three motions: (1) its motion for summary judgment under Mississippi Rule of Civil Procedure 56, (2) its motion for involuntary dismissal under Mississippi Rule of Civil Procedure 41(b), and (3) its motion for a judgment notwithstanding the verdict under Mississippi Rule of Civil Procedure 50(b).

¶ 10. The three motions challenged the sufficiency of Rea’s proof — the difference being the timing of each motion and the evidence the chancellor had to consider. See PACCAR Fin. Corp. v. Howard, 615 So.2d 583, 587 (Miss.1993). A motion for summary judgment is a pretrial motion that requires the trial judge to consider “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits,” in the light most favorable to the nonmovant and determine whether the plaintiff has presented sufficient evidence to create a fact issue on all the elements of the claims the plaintiff seeks to prove at trial. M.R.C.P. 56(c). A motion for involuntary dismissal applies to cases tried without a jury and may be made by the defendant after the plaintiff presents its evidence. M.R.C.P. 41(b). The trial judge, who is also the trier of fact, then considers the evidence fairly and determines whether or not the unrebutted evidence would entitle the plaintiff to a judgment. Buelow v. Glidewell, 757 So.2d 216, 220 (¶ 12) (Miss.2000). And a motion for a judgment notwithstanding the verdict is made post-judgment, after the trier of fact has considered all the evidence — both the plaintiffs and the defendant’s. See M.R.C.P. 50(b). The trial judge considers the evidence “in the light most favorable to the verdict” and determines whether substantial evidence supports the verdict. Adcock v. Miss. Transp. Comm’n, 981 So.2d 942, 949 (¶ 25) (Miss.2008) (citation omitted).

B. Motion for a Judgment Notwithstanding the Verdict

¶ 11. On appeal, the motion we consider is Great River’s motion for a judgment notwithstanding the verdict. We find that by challenging the sufficiency of Rea’s evidence at every possible stage of the litigation, Great River has certainly-preserved its sufficiency-of-the-evidence argument on appeal. See PACCAR Fin. Corp., 615 So.2d at 587 (citing Clements v. Young, 481 So.2d 263, 268 (Miss.1985)). But by going to trial after the denial of its summary-judgment motion and by offering evidence in defense after the denial of its motion for involuntary dismissal, Great River has “waive[d] the right to assign on appeal error in the failure of the trial judge to grant [these earlier] motion[s].” Clements, 481 So.2d at 268 (explaining distinction between waiver of assigning error to denial of motion versus non-waiver of sufficiency-of-the-evidence argument). So we only consider Great River’s sufficiency argument in the context of its motion for a judgment notwithstanding the verdict, which was denied based on the chancellor’s consideration of all the evidence. Cf. PACCAR Fin. Corp., 615 So.2d at 587 (reviewing sufficiency-of-the-evidence argument in context of the denial of the defendant’s request for peremptory instruction and not the earlier denial of its motion for directed verdict).

C. Cross-Appeal

¶ 12. Rea’s cross-appeals the denial of pre-judgment interest and punitive damages. But we need not address these complaints. Since we find the chancellor erred in denying Great River’s motion for a judgment notwithstanding the verdict, the issues of potentially adding interest and punitive damages to the judgment are moot.

Discussion

¶ 13. Great River’s motion for a judgment notwithstanding the verdict challenged the legal sufficiency of the evidence. See Adcock, 981 So.2d at 948 (¶ 25). We review the denial of this motion de novo. Viewing the evidence in the light most favorable to the verdict, we will affirm “if there is substantial evidence to support the verdict.” Id. Because our review reveals there is no evidence to support the judgment in favor of Rea’s, we find the motion should have been granted, and the judgment must be reversed.

I. Proving Coverage

¶ 14. “The burden of proving coverage rests with the insured.” Architex Ass’n, Inc. v. Scottsdale Ins., 27 So.3d 1148, 1157 (¶ 21) (Miss.2010) (citing S. Life & Health Ins. v. Kemp, 300 So.2d 782, 785 (Miss.1974)). In the specific context of CGL coverage, to prove Great River’s duty to defend was triggered, Rea’s had to show: (1) Broom alleged she suffered “property damage”; (2) Broom alleged the property damage was caused by an “occurrence”; and (3) no valid exclusion applied. See Lafayette Ins. v. Peerboom, 813 F.Supp.2d 823, 826 (S.D.Miss.2011).

¶ 15. This particular proof must be found by looking solely to Broom’s complaint and the CGL policy’s language. Auto. Ins. Co. of Hartford v. Lipscomb, 75 So.3d 557, 559 (¶ 7) (Miss.2011). It is the allegations in the complaint, “and particularly the conduct alleged in the complaint, [that] determine whether an insurer is required to defend an action.” Id.

II. Complaint

¶ 16. Broom’s complaint alleged intentional conduct. In her complaint, she alleged that the pits’ “slopes were not as agreed, the pits were not lined with clay, the topsoil was not stockpiled and placed back afterwards.” Further, “[t]he roads and slopes were not graded and grassed nor was the main road graded and graveled.”

¶ 17. Broom made specific allegations against Rea’s subcontractor, W.C. Pitts. She alleged that W.C. Pitts asked if she wanted “topsoil.” Broom said yes — only to discover after eleven trucks loads had been dumped on her property that what W.C. Pitts was trying to pass off as “topsoil” was really “waste material (i.e., red clay).” Broom told W.C. Pitts to stop. But sixty more truck loads of clay were dumped on her property, in direct contradiction to her wishes.

¶ 18. Broom also alleged that she had “not been compensated as agreed,” that the work had not been completed by the contract’s deadline, and that topsoil had been taken from the property without her consent and without compensating her. Broom did not allege any inadvertent conduct caused further damage to her property-

ill. CGL Policy

¶ 19. Looking at the conduct alleged in Broom’s complaint, together with the policy, we find Great River had no duty to defend.

¶ 20. In section l.A of the CGL policy issued to Rea’s, Great River agreed to “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.” Great River also agreed that it had “the right and duty to defend [Rea’s] against any ‘suit’ seeking those damages.” But Great River expressly stated it had “no duty to defend [Rea’s] against any ‘suit’ seeking damages for ‘bodily injury’ and ‘property damage’ to which this insurance does not apply.”

¶ 21. So based on the policy’s language, Great River had the duty to indemnify (reimburse) Rea’s for any amount it became legally obligated to pay to another party because of covered property damage. It also had the broader duty to defend any lawsuit against Rea’s in which there was a potential of covered damages for which Rea’s would become liable. See Titan Indem. Co. v. Pope, 876 So.2d 1096, 1101 (¶ 14) (Miss.Ct.App.2004) (holding “the duty to defend is broader than the insurer’s duty to indemnify under its policy of insurance: the insurer has a duty to defend when there is any basis for potential liability under the policy”).

¶22. But Great River had no duty to defend against alleged conduct that fell outside the policy’s coverage. See Lipscomb, 75 So.3d at 559 (¶ 7). That is because, “[i]n Mississippi, an insurance company’s duty to defend its insureds derives neither from common law nor statute, but rather from the provisions of ... its insurance contract with its insured.” Baker Donelson Bearman & Caldwell, P.C. v. Muirhead, 920 So.2d 440, 450 (¶ 40) (Miss.2006). Because the duty to defend “is a matter of contractual agreement,” the duty “is neither greater nor broader than the duty to comply with its other contractual obligations.” Id.

¶ 23. Based on the language of the contract between Great River and Rea’s, Great River had a duty to defend against Rea’s potential liability for “property damage,” but only if the “‘property damage’ [wa]s caused by an ‘occurrence,” which the policy defined as an “accident.” And here, there were no allegations of an accident.

A. Property Damage

¶ 24. There were allegations of “property damage.” The policy defined “property damage” as “[p]hysical injury to tangible property, including all resulting loss of use of that property.” Great River asserts that Broom did not allege in her complaint that she suffered “property damage” or physical injury to her real property but instead alleged she suffered “economic damages” because the alterations made to her property did not comply with the agreed-upon specifications, a portion of her property was converted, and she was not sufficiently compensated under the contract. We agree with Great River that “[pjurely pecuniary or economic losses are not ‘property damage,’ ” Audubon Ins. v. Stefancik, 98 F.Supp.2d 751, 756 (S.D.Miss.1999). But we disagree that Broom only alleged economic injury. The policy defines “property damage” as “[pjhysical injury to tangible property, including all resulting loss of use of that property.” Broom alleged her property had been physically injured by pits being dug, topsoil being stripped, and mounds of waste dirt being dumped. Thus, we find her complaint included allegations of “property damage.”

B. Occurrence

¶ 25. Under the policy, however, mere allegations of property damage do not trigger the duty to defend. The CGL policy is clear that only property damage caused by an “occurrence” is covered. The policy defines “occurrence” as an “accident.” And Broom’s complaint contains no allegations that her property damage was accidental.

¶ 26. Rea’s argues that, because an “accident” is something that is not expected or intended and because Broom did not expect or intend her property to be left in such a state, the damages she alleged were caused by an “accident.” Rea’s relies on Georgia Casualty Co. v. Alden Mills, 156 Miss. 853, 862, 127 So. 555, 557 (1930), to argue that an “accident” is determined by asking whether the injury was unexpected or unintended from the viewpoint of the injured. But in more recent — and more factually relevant — precedent, the Mississippi Supreme Court has found that the use of the term “accident” in a CGL policy to define “occurrence” is “sufficiently unambiguous for [the court] to hold that the term accident refers to [the insured’s action] and not whatever unintended damages flowed from that act.” Allstate Ins. v. Moulton, 464 So.2d 507, 510 (Miss.1985).

¶ 27. In Moulton, the insured swore in a complaint that a man named Walls stole her dog. After the alleged dog snatcher was acquitted, he sued the insured for malicious prosecution. Id. at 508. The insured claimed she was entitled to a defense by her insurer because the injuries Walls sought damages for — the embarrassment and humiliation of being arrested and tried — were unintended consequences of her actions. Id. at 510. But the supreme court held there was no duty to defend because Walls’s injuries were not caused by an accident. The insured had intentionally sworn a complaint against Walls, and regardless of whether she intended or expected to be sued for doing so, there was no “accident.” Id. Here, like Moulton, the lawsuit by Broom may have been an unintended consequence of the defendants’ collective actions related to the dirt work on Broom’s property. But that does not mean Broom’s perceived damages to her property were accidental.

¶ 28. Further, just because Broom sued Rea’s for negligence — in addition to breach of contract, conversion, unjust enrichment, and fraud — does not mean Broom’s suit is based on damages caused by an “accident.” In United States Fidelity & Guaranty Co. v. Omnibank, 812 So.2d 196, 198 (¶ 2), 200 (¶¶ 10-16) (Miss.2002), the insured, a bank that had financed a ear, was also sued for negligence by the car’s owner, after it “forced-placed” insurance on the car. One of the car owner’s allegations was the that bank “engaged in a course of conduct which constituted a negligent disregard for the right[s] of the [ear owner].” Id. at (¶ 13). Despite the use of the word “negligent,” the supreme court held that there was no allegation of an “occurrence” because the car owner did not allege damages caused by an accident. The bank intended to make a loan to the car owner, intended to require the car owner to have insurance on the car, intended to force-place insurance on the car, and intended the car owner to pay for the insurance premium. Though the bank did not intend to cause the car owner harm, the actions that led to the claim for damages were not accidental. Id. at (¶ 16). The same is true here. Though Broom alleged the defendants breached certain duties that proximately caused her damages, she does not allege the breaches were accidental.

¶ 29. Rea’s tries to distinguish this case from Moulton and Omnibank. Rea’s argues that because it was not its actions that caused any of the alleged damage to Broom’s property — but rather those of the other defendants and subcontractors— there was no intentional action on its part. But the supreme court recently held, in a factually similar case, that “accident” refers to the nature of the act that caused the damages, regardless of whether the insured was the actor. Architex, 27 So.3d at 1161 (¶ 28).

¶ 30. In Architex, the insured was a contractor for a hotel building who had been sued for faulty foundation work performed by its subcontractor and who, in turn, sued its insurer arguing there was a duty to defend under a similarly worded CGL policy. Id. at 1150 (¶¶ 3-6). Like Rea’s, the contractor argued the damage to the building was caused by an “occurrence” or “accident” because the insured had not done anything intentional that caused the building’s foundation to be severely compromised. Id. at 1156 (¶ 19). Though acknowledging a jurisdictional split on the issue of whether faulty workmanship by a subcontractor was or was not an “occurrence” under a CGL policy, our supreme court found no reason why allegations of faulty workmanship should change how Mississippi courts approach the question of “occurrence”:

It appears that part of the confusion between insurers and insureds, and in conflicting opinions of courts, is caused by branding faulty workmanship, defective work, and other similar phrases as “occurrences” or not. Faulty workmanship, defective work, et al., may be accidental, intentional, or neither. A return to basics leads this Court to conclude that the underlying facts will determine whether the complaint of “property damage” (defective or faulty workmanship) was proximately caused by breach of a recognizable duty and whether that breach was accidental or intentional; or, whether the “property damage” was caused by neither. In two of the three aforementioned scenarios, no coverage would exist. Only when “property damage” is proximately caused by an accident (an inadvertent act) does an “occurrence,” as defined by the policy, trigger coverage.

Id. at 1160-61 (¶ 28).

¶ 31. Here, Broom alleged that the various defendants acted intentionally — by digging pits, removing topsoil, dumping clay, disobeying her requests, and failing to plant grass and lay gravel — and that it was these intentional acts or refusals to act that damaged her real property. Nowhere in her complaint does she allege there was an inadvertent act or accident that damaged her property. And without an accident, there was no “occurrence,” and without an occurrence, there was no duty to defend.

C. Applicable Exclusions

¶ 32. Further, Rea’s failed to show coverage based on the applicable policy exclusions. “[E]ven if there has been ‘property damage’ caused by an ‘occurrence,’ coverage is not automatic. It also must be ascertained, under the facts specific to each case, if any other exclusions and/or exceptions to exclusions apply.” Id. at 1161 (¶29). So even if Broom had alleged property damage caused by an occurrence — which she did not — Great River’s duty to defend still would not have been triggered because Broom’s alleged property damage fell within the CGL policy’s “business-risk” exclusions, j(5) and j(6).

¶ 33. “These exclusions, j(5) and j(6) in the CGL policy, are designed to exclude coverage for faulty workmanship or defective work performed by the insured, as that is the business risk that should be borne by the insured and not the insurer.” Jeffrey Jackson, Miss. Ins. Law & Prac. § 16:27 (2012 ed.); see also Lafayette Ins., 813 F.Supp.2d at 829 (holding exclusions j(5) and j(6) “operate together to exclude coverage for an insured’s faulty workmanship, the rationale for the exclusions being that ‘faulty workmanship is not an insurable “fortuitous event,” but a “business risk” to be borne by the insured and not the insurer’ ” (quoting Acadia Ins. v. Peerless Ins., 679 F.Supp.2d 229, 234 (D.Mass.2010))). “[UJnless that shoddy work results in accidental property damages or personal injury to one other than the insured!,][t]he CGL insurer does not intend to indemnify the insured contractor for economic consequences of the insured’s bad work.” Jackson, Miss. Ins. Law & Prac. § 16:27; see also Wilshire Ins. v. RJT Constr., LLC, 581 F.3d 222, 226 (5th Cir.2009) (“The ‘your work’ exclusion prevents a CGL policy from morphing into a performance bond covering an insured’s own work.”).

¶ 34. Here, Broom did not allege the defendant contractors’ and subcontractors’ work led to an accident that caused additional property damage. Instead, her allegations of property damage only concerned the parts of her real property where the defendant contractors and subcontractors had performed work. And she alleged the damage was caused directly by this work. Further, Broom sued for the restoration of her property in the areas where the contractors and subcontractors “incorrectly performed” work that was to be done under the Kent contract.

¶ 35. Exclusion j(5) excludes property damage to “[t]hat particular part of real property on which [Rea’s] or any contractors or subcontractors working directly or indirectly on [Rea’s] behalf are performing operations, if the ‘property damage’ arises out of those operationsf.]” And exclusion j(6) excluded property damage to “[t]hat particular part of [Broom’s] property that must be restored, repaired, or replaced because ‘your work’ ” — i.e., “[w]ork or operations performed ... on [Rea’s] behalf’ — “was incorrectly performed on it.” Because Broom sought compensation for damage done only to those parts of her real property where the defendants were working and sought compensation to restore her property to the condition it would have been in had the dirt work been performed according to the Kent contract, her alleged property damage fell under these business-risk' exclusions. Thus, Rea’s failed to prove no policy exclusions applied, which was another essential element of its duty-to-defend and bad-faith claims that was not supported by substantial evidence.

IV. Conclusion

¶ 36. Because there was no duty to defend, the $193,684.95 judgment — premised on the chancellor’s finding that Rea’s had presented sufficient evidence of Great River’s breach of the contractual duty to defend and bad-faith denial of coverage— cannot stand. We reverse the judgment in favor of Rea’s and render judgment in favor of Great River and the other named defendants.

¶ 37. THE JUDGMENT OF THE WAYNE COUNTY CHANCERY COURT IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE/CROSS-APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR.

      . In addition to Great River, Rea’s also sued several entities related to Great River: W.R. Berkley Corporation, Union Standard Insurance Company, and Union Standard Insurance Group. On appeal, Great River argues that the chancellor left unclear whether the final judgment was. against these other entities as well. Further, it argues it is the only entity that could have breached a duty owed to Rea's and acted in bad faith, as it was the only entity that contracted with Rea’s. We do not have to reach this issue. To the extent the chancellor’s judgment was against these other defendants, we reverse and render judgment in favor of all the named defendants.

      . In cases tried before a jury, Rule 50(a) applies, allowing for a motion for "directed ver-diet” at the close of the plaintiffs case-in-chief. M.R.C.P. 50(a).

      . " ‘Substantial evidence’ is information of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different con-elusions.” Adcock, 981 So.2d at 948-49 (¶ 25) (quoting Natchez Elec. & Supply Co. v. Johnson, 968 So.2d 358, 362 (¶ 12) (Miss.2007)).

      . Great River also asks us to “explore" the position of other jurisdictions that have held that alleged damage to an insured’s work does not constitute “property damage” as contemplated under CGL policies. But we find such an expedition unnecessary. Instead of tinkering with the unambiguous definition of “property damage,” we think the question whether allegations of damage to an insured's work is covered is better resolved by asking whether the property damage was caused by an "occurrence” and, if so, whether the alleged damage falls within a valid exclusion. See Architex, 27 So.3d at 1161 (¶¶ 28-29).

      . See note 1, supra.


author: ROBERTS, J.,

text:
    Sandra COBB and Cobb Bail Bonding Company, Appellants v. STATE of Mississippi, Appellee.
    No. 2013-CA-00512-COA.
    Court of Appeals of Mississippi.
    May 20, 2014.
    Azki Shah, attorney for appellants.

      Office of the Attorney General by Samson Mabry IV, Leyser Q. Hayes, attorneys for appellee.
    Before LEE, C.J., ROBERTS and JAMES, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Sandra Cobb and Cobb Bail Bonding Company appeal the DeSoto County Circuit Court’s decision to deny Cobb’s motion to set aside a judgment nisi. One of Cobb’s employees attempted to surrender a principal on an appearance bond to a bailiff and a court administrator, but the principal absconded from the courthouse. The circuit court held that Cobb’s employee had failed to legally surrender the principal, so it found Cobb liable for the value of the appearance bond. Cobb appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Christopher Earl Reid was arrested and charged with felony possession of a controlled substance. Through Sandra Cobb’s bonding company, Reid signed an appearance bond. Cobb agreed to pay the State of Mississippi $10,000 if Reid did not appear for court when ordered. On January 11, 2012, the circuit court sent Cobb a letter informing her that Reid was scheduled to appear on February 1, 2012.

¶ 3. On February 1, 2012, Reid and his attorney, Joe Morgan Wilson, went to the courthouse. Mary Millon was there on Cobb’s behalf. Millon told the court administrator, Suzanne Lowrie, and the bailiff, Deputy Andrew Miller, that Cobb intended to surrender Reid’s bond. Deputy Miller told Millon that he could not accept Reid’s surrender at the courthouse because it was contrary to the DeSoto County Sheriffs Department’s policy.

¶ 4. Reid received word that Millon intended to surrender his bond. He asked to make a phone call, and he went into the jury room. He then went into a bathroom adjacent to the jury room, and escaped through a second-story window.

¶ 5. Two days later, the circuit court entered a judgment nisi against Reed, Sandra Cobb, and Cobb Bail Bonding. The circuit court also issued a bench warrant for Reid’s arrest, and a writ of scire facias summoning Reid and Cobb to appear on May 3, 2012. Neither Reid nor Cobb appeared for the hearing on the writ of scire facias. Consequently, the circuit court entered a final judgment against Reid and Cobb for $10,000.

¶ 6. Cobb filed a motion to set aside the judgment nisi. During the hearing on Cobb’s motion, Millon, Deputy Miller, and Cobb testified. Ultimately, the circuit court denied Cobb’s motion. Cobb appeals.

ANALYSIS

SURRENDER

¶ 7. Cobb argues that the circuit court erred when it denied her motion to set aside the judgment nisi. According to Cobb, when Millon told the court administrator that Cobb Bonding was surrendering Reid, that was sufficient to satisfy the statutory requirement of surrendering Reid in open court. Cobb also claims that Millon sufficiently surrendered Reid when she informed the bailiff of her intent.

¶ 8. Mississippi Code Annotated section 99-5-27(l)(a) (Supp.2013) defines “surrender” as “delivery of the defendant, principal on bond, physically to the sheriff ... or[,] in his absence, his jailer....” Millon did not surrender Reid to the DeSoto County Sheriff or his jailer. She attempted to surrender Reid to Deputy Miller, the bailiff. Deputy Miller expressly told Mil-lon that he could not accept Reid’s surrender because it was contrary to the policy of the DeSoto County Sheriffs Department. Millon did not legally “surrender” Reid to Deputy Miller.

¶ 9. Furthermore, there is no merit to Cobb’s claim that Millon legally surrendered Reid to the court administrator. Mississippi Code Annotated section 99-5-27(2)(a) (Supp.2013) provides:

A bail agent, at any time, may surrender the principal to any law enforcement agency or in open court in discharge of the bail agent’s liability on the principal’s bond if the law enforcement agency that was involved in setting the original bond approves of such surrender, to the State of Mississippi and any of its courts....

Millon simply told the court administrator that she intended to surrender Reid. There is no evidence that Millon surrendered Reid in “open court.” Reid was only present for arraignment. The circuit court judge was not on the bench, and he had not called court into session when Millon told the court administrator that she intended to surrender Reid. There is no merit to this issue.

¶ 10. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . We refer to the Appellants collectively as "Cobb” unless the context 1 requires otherwise.


text:
    Richard PALMER a/k/a Richard Donald Palmer, Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00422-COA.
    Court of Appeals of Mississippi.
    June 3, 2014.

      Richard Palmer, appellant, pro se.
    Office of the Attorney General by Lisa L. Blount, attorney for appellee.
    Before IRVING, P.J., ROBERTS and FAIR, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. During February 2012, Richard Palmer went before the Jackson County Circuit Court and pled guilty to twelve counts of an eighteen-count indictment. Specifically, Palmer pled guilty to three counts of touching a child for lustful purposes, four counts of sexual battery of a child, and five counts of exploitation of a child. In exchange for his guilty plea, the prosecution dismissed the remaining six counts of sexual battery that Palmer faced. The circuit court sentenced Palmer to concurrent sentences that, when taken collectively, operate as thirty years in the custody of the Mississippi Department of Corrections (MDOC), with eighteen years to serve followed by twelve years of post-release supervision.

¶ 2. Eight months after Palmer’s guilty-plea hearing, he filed a motion for post-conviction relief (PCR). Palmer claimed that he was deprived of his right to a speedy trial; he received ineffective assistance of counsel; there was no factual basis for his guilty pleas; and the sexual-battery charges were fatally defective because they did not allege that the victim did not consent to sexual penetration. The circuit court denied Palmer’s PCR motion. Palmer appeals.

STANDARD OF REVIEW

¶ 3. We will not disturb the circuit court’s denial of a PCR motion unless the circuit court’s factual findings are clearly erroneous. Smith v. State, 29 So.3d 126, 128 (¶ 8) (Miss.Ct.App.2010). However, we review questions of law de novo. Id.

ANALYSIS

I. INDICTMENT

¶ 4. Palmer claims that all of the sexual-battery charges in the indictment were fatally defective because they did not allege that the victim did not consent to sexual penetration. Palmer’s claim is based on a misunderstanding of the nature of the charges that he faced.

¶ 5. Palmer is correct that under certain circumstances, to convict an accused of sexual battery, it is necessary to prove that the victim did not consent to sexual penetration. Mississippi Code Annotated section 97-3-95(l)(a) (Rev.2006) provides that “[a] person is guilty of sexual battery if he or she engages in sexual penetration with ... [ajnother person without [the other person’s] consent.” But Palmer was not charged with sexual battery under section 97-3-95(l)(a). Palmer was charged with ten counts of sexual battery under Mississippi Code Annotated section 97 — 3—95(l)(c) (Rev.2006).

¶ 6. Section 97-3~95(l)(c) states that “[a] person is guilty of sexual battery if he or she engages in sexual penetration with ... [a] child at least fourteen ... but under sixteen ... years of age, if the person is thirty-six ... or more months older than the child[.]” Section 97-3-95(l)(c) does not require that the sexual penetration occur without the child’s consent. Accordingly, an indictment that alleges sexual battery under section 97-3-95(l)(c) is not required to claim that the sexual penetration occurred without the victim’s consent. See Bryant v. State, 879 So.2d 530, 531 (¶4) (Miss.Ct.App.2004). It follows that the sexual-battery charges in the indictment against Palmer were not fatally defective. There is no merit to this issue.

II. ASSISTANCE OF COUNSEL

¶ 7. Next, Palmer claims he received ineffective assistance of counsel. He alleges that his lawyer coerced him to plead guilty by telling him that he had no defenses, and he could receive a life sentence if he refused to accept the prosecution’s recommendation of a thirty-year sentence in exchange for his guilty plea. Palmer also claims that his lawyer did not adequately explain the plea agreement. Finally, Palmer asserts that his lawyer failed to investigate the evidence against him, and she failed to explore all possible defenses to the charges against him.

¶ 8. To successfully prove ineffective assistance of counsel, Palmer bears the burden of demonstrating that (1) his lawyer’s performance was deficient, and (2) he suffered prejudice as a result of his lawyer’s deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “In the context of guilty pleas, ... the defendant must show that, were it not for counsel’s errors, he would not have [pled] guilty and would have insisted on going to trial.” Burrough v. State, 9 So.3d 368, 375 (¶ 22) (Miss.2009).

¶ 9. Beyond mere assertions, Palmer has failed to present any evidence that he would have insisted on going to trial. He does not elaborate regarding what his lawyer allegedly failed to explain about the plea agreement. Although Palmer claims his lawyer failed to investigate the evidence against him, he does not claim that his lawyer should have investigated any particular evidence; nor does he suggest that his lawyer would have discovered anything helpful to his case if his lawyer had done so. And Palmer does not claim that his lawyer should have explored any particular defense. In other words, Palmer merely claims that his lawyer should have done something else for him, but he does not explain what his lawyer should have done differently. Such bald assertions are not enough to meet his burden of proving that his lawyer’s performance was deficient.

¶ 10. Additionally, during his guilty-plea hearing, Palmer said that he was satisfied with his lawyer’s services. A defendant’s “declarations during the plea colloquy that he was satisfied with the services of his lawyer are presumptively true. ‘Solemn declarations in open court carry a strong presumption of verity.’” Fair v. State, 102 So.3d 1165, 1168-69 (¶ 11) (Miss.Ct.App.2012) (quoting Bell v. State, 754 So.2d 492, 495 (¶7) (Miss.Ct.App.1999)).

¶ 11. And finally, Palmer did not support his PCR motion with affidavits other than his own. In PCR cases, “where a party offers only his affidavit, then his ineffective[-]assistance[-]of[-]counsel claim is without merit.” Brooks v. State, 89 So.3d 626, 628 (¶6) (Miss.Ct.App.2011) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). For the numerous reasons discussed above, there is no merit to Palmer’s claims that he received ineffective assistance of counsel.

III. SPEEDY TRIAL

¶ 12. Palmer argues that he did not receive his constitutional right to a speedy trial. However, a valid guilty plea waives all non-jurisdictional rights or defects, including the right to a speedy trial. Fulton v. State, 844 So.2d 1171, 1172 (¶ 4) (Miss.Ct.App.2003) (citing Anderson v. State, 577 So.2d 390, 391 (Miss.1991)). Therefore, Palmer waived his right to raise this issue.

IV. VOLUNTARY GUILTY PLEAS

¶ 13. Palmer claims that all four of his guilty pleas to sexual battery were involuntary. A guilty plea must be knowingly and voluntarily entered, or the plea violates due process. Boykin v. Alabama, 395 U.S. 238, 243 n. 5, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). “Ignorance, incomprehension, coercion, terror or other inducements, both subtle and blatant, threaten the constitutionality of a guilty plea.” Hannah v. State, 943 So.2d 20, 25 (¶ 12) (Miss.2006) (citing Boykin, 395 U.S. at 242-43, 89 S.Ct. 1709). For a guilty plea to be voluntary, the defendant must be advised of the charges against him and the consequences of his guilty plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). “Specifically, the defendant must be told that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self-incrimination.” Id. (citing Boykin, 395 U.S. at 243 n. 5, 89 S.Ct. 1709). Additionally, the circuit court must address the defendant personally to inquire and determine that the defendant is competent to understand the nature of the charge, and that the defendant understands the maximum and minimum sentences for the crime. URCCC 8.04(A)(4). Palmer bears the burden of proving that his guilty pleas were involuntary. Hill v. State, 60 So.3d 824, 828 (¶ 11) (Miss.Ct.App.2011).

¶ 14. According to Palmer, his guilty pleas were involuntary because he did not know that the sexual-battery charges in the indictment were defective in that they did not accuse him of sexual penetration without the victim’s consent. However, as discussed above, it was unnecessary for the sexual-battery charges to allege that the victim had not consented to sexual battery, because of the victim’s age. There is no merit to this issue.

V. FACTUAL BASES FOR GUILTY PLEAS

¶ 15. Finally, Palmer claims there was an insufficient factual basis for his guilty pleas. Palmer does not relate his claim to any particular guilty pleas. He simply states that this Court should “compare the conduct to which [he] admitted] with the elements of the offense charged in the indictment.”

¶ 16. “Before the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea.” URCCC 8.04(A)(3). A defendant can establish a factual basis for his guilty plea simply by pleading guilty; however, his plea “must contain factual statements constituting a crime or be accompanied by independent evidence of guilt.” Hannah, 943 So.2d at 26-27 (¶ 16). In other words, “a factual basis is not established by the mere fact that a defendant enters a plea of guilty.” Id. Rather, the record must contain facts that are “sufficiently specific to allow the court to determine that the defendant’s conduct was within the ambit of that defined as criminal.” Lott v. State, 597 So.2d 627, 628 (Miss.1992) (quoting United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir.1984) (disapproved of on other grounds)). Finally, this Court is not limited to review of a defendant’s plea transcript when determining if a factual basis existed for his guilty plea. Boddie v. State, 875 So.2d 180, 183 (¶ 8) (Miss.2004). We may review the record as a whole for evidence of a factual basis for a guilty plea. Id.

¶ 17. During the guilty-plea hearing, Palmer said that he had been served with a copy of the indictment, and the following exchange occurred:

Q. Are ... you pleading guilty to these charges because you are guilty and no other reason?
A. Yes, ma’am.
Q. Mr. Palmer, tell me what you did that makes you think [that] you’re guilty of these charges.
A. I did what they said, ma’am.
Q. You’re going to have to give me more than that. Who was the child?
A. [Victim’s name redacted]
Q. And how did you know [her]?
A. I’ve been friends with her mom for a few years.
Q. You’ve been what?
A. Friends with her mom for some years. And when I came [to Mississippi] from California[,] I stayed with them for awhile.
Q. You stayed with them for awhile?
A. Yeah, about six months.
Q. And? How old was the child when this started?
A. Around ten.
Q. And you did the fondling charges, the sexual batteries — and what was the exploitation about?
A. Pictures.
Q. Pictures. You took pictures of all this. And how did you get caught? [Palmer’s lawyer]: Judge, the mother of the child — [Palmer] had given the child a cell phone and the mother picked up the cell phone and saw text messages between [him] and the child, and it led to her questioning the child.
THE COURT: And how old was the child when all this came out?
[The prosecutor]: Your Honor, the child was [fourteen years old] at the time. On the cell phone were like 911 text messages between [Palmer] and the child in an eight[-]day period. The mother found some of the texts inappropriate. When they questioned the child, the child also told them that pictures had been taken of her. And they went and found the pictures and, sure enough, it was [Palmer] and the child.
The allegations on the sexual battery, Your Honor, are penis to vagina, tongue to vagina[,] and penis to mouth penetrations. And the pictures depict the victim being penetrated and ... the victim’s genital area.
Q. Is that true?
A. Yes, ma’am.
Q. How many pictures did you have total?
A. Maybe three.
Q. Three?
[The prosecutor]: There were more. We picked five in the indictment, Your Honor. But it’s also important for the Court to know that [Palmer] was the child’s godfather and that was the relationship between [him] and the child.
Q. Did you hear anything you don’t agree with?
A. No, ma’am.
Q. You did all these things?
A. Yes, ma’am.

¶ 18. There are many ways to establish a sufficient factual basis for a guilty plea. A factual basis for a guilty plea has been found when third parties discuss the evidence against a defendant. For example, there may be a sufficient factual basis to support a defendant’s guilty plea when both a defendant and an investigator for the prosecution testify to factual matters during a guilty-plea hearing. Brown v. State, 533 So.2d 1118, 1124 (Miss.1988). Similarly, a prosecutor’s “concise statement of facts to establish the crime, the investigation, and the apprehension of’ a defendant during a guilty-plea hearing has been found to aid in establishing a sufficient factual basis to support a guilty plea. Reynolds v. State, 521 So.2d 914, 917 (Miss.1988). A defense attorney’s “lengthy recitation of the evidence against” a defendant during a guilty plea may also establish a sufficient factual basis to support a guilty plea. Jones v. State, 970 So.2d 1316, 1322 (¶20) (Miss.Ct.App.2007). Here, the prosecutor and Palmer’s lawyer both discussed the evidence against Palmer. Palmer conceded that the recitation of the evidence was accurate, and that he was guilty of the conduct that the prosecutor and his lawyer described. There is no merit to this issue.

¶ 19. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.


author: PARKER, Justice. STUART, Justice

text:
    Ex parte TOWER INSURANCE COMPANY OF NEW YORK INC. et al. (In re Cullman Bowling Center, LLC v. Tower Insurance Company of New York Inc. et al.).
    1120228.
    Supreme Court of Alabama.
    Aug. 23, 2013.
    David M. Wilson and P. Ted Colquett of Wilson & Berryhill, P.C., Birmingham, for petitioners.
    Gary V. Conchin of Wolfe Jones Conchin Wolfe Hancock & Daniel, LLC, Huntsville, for respondent.
   PARKER, Justice.

PETITION DENIED. NO OPINION.

MOORE, C.J., and SHAW and WISE, JJ., concur.

STUART, J., concurs specially.

STUART, Justice

(concurring specially).

This case involves a petition for a writ of mandamus filed by an insurance company, an independent adjusting firm, and an adjuster employed by that firm (collectively “the petitioners”), asking this Court to issue a writ of mandamus directing the Cull-man Circuit Court to set aside its order appointing an umpire to resolve a dispute between the insurance company and its insured concerning a claim for damage to the roof of the insured’s commercial property. The insured had moved the trial court to appoint an umpire pursuant to an appraisal clause in its insurance policy designed to resolve disputes in the event the insurer and insured “disagree on the value of the property or the amount of loss.” The insurance company had previously declined to follow the procedure set forth in the appraisal clause because, it argued, its dispute with the insured was not over “the amount of the loss” but whether the alleged loss was, in fact, a covered loss.

This Court considered a similar issue in Rogers v. State Farm Fire & Casualty Co., 984 So.2d 382 (Ala.2007); however, in that case it was the insureds that argued that the trial court had improperly ordered the parties to submit to the appraisal process set forth in their insurance policy. When the trial court subsequently entered a judgment in accordance with its appointed umpire’s findings, the insureds appealed to this Court, arguing that the trial court had erred in ordering them to submit to the appraisal process because, they argued, the gravamen of their dispute was whether the alleged loss was a covered loss. 984 So.2d at 388. In reversing the trial court’s judgment, we stated:

“Having considered the holding of other jurisdictions regarding the scope of an appraiser’s rights and duties under an appraisal clause in an insurance policy, we conclude that the more persuasive authority is the authority holding that an appraiser’s duty is limited to determining the ‘amount of loss’ — the monetary value of the property damage — and that appraisers are not vested with the authority to decide questions of coverage and liability; we thus adopt that holding as our rule of law. Questions of coverage and liability should be decided only by the courts, not appraisers. This holding is consistent with the longstanding principle that ‘[t]he court must enforce the insurance policy as written if the terms are unambiguous.’
Safeway Ins. Co. of Alabama v. Herrera, 912 So.2d 1140, 1143 (Ala.2005). We find no ambiguity in the term ‘the amount of loss’ as used in the appraisal clause in the Rogerses’ homeowner’s policy that would permit an appraisal to include questions of coverage and liability. Such a conclusion is also consistent with the principle that ‘[t]he contract shall be construed liberally in favor of the insured and strictly against the insurer.’ Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996).
“Therefore, we hold that the trial court erred in ordering the parties to submit to the appraisal process. Although the parties agreed as to the causation of the damage to the roof, they were not in agreement as to the cause of the damage to the brick veneer or to the foundation. The determination of the causation of these matters is within the exclusive purview of the courts, not the appraisers.”

984 So.2d at 392. Thus, Rogers supports the general argument madé by the petitioners in this case that disputes regarding the scope of insurance coverage should not be decided by appraisers or umpires in proceedings conducted pursuant to an appraisal clause in an insurance policy; rather, those proceedings should be used only to establish the amount of loss when both the insurer and the insured agree on what constitutes the covered loss.

However, in this case it is unnecessary to examine the alleged facts to determine whether the dispute is truly one of coverage or one of value because the petitioners have not established that they are entitled to mandamus relief. As we have stated before, mandamus is a drastic and extraordinary writ that will be issued only when, among other things, the petitioner has no other adequate remedy. Ex parte United Serv. Stations, 628 So.2d 501, 503 (Ala.1993). The petitioners have cited no authority and have made no argument establishing that mandamus relief is appropriate in this case, and, for all that appears, they may obtain relief, if they are ultimately entitled to it, via the normal appellate process — not unlike the appellants in Rogers, the case upon which the petitioners primarily rely. See also Ex parte Dillard Dep’t Stores, Inc., 879 So.2d 1134, 1137 (Ala.2003) (“The burden rests on the petitioner to demonstrate that its petition presents such an exceptional case — that is, one in which an appeal is not an adequate remedy.”). For these reasons, I concur in the judgment to deny the petitioners’ petition for a writ of mandamus.


author: STUART, Justice. MOORE, Chief Justice

text:
    Ex parte J.W. and M.W. (In re J.W. and M.W. v. Colbert County Department of Human Resources).
    1120782.
    Supreme Court of Alabama.
    Aug. 30, 2013.
    M. Chad Smith, Tuscumbia, for petitioners.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for respondent.
   STUART, Justice.

WRIT QUASHED. NO OPINION.

BOLIN, MURDOCK, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MOORE, C.J., and PARKER, J., dissent.

MOORE, Chief Justice

(dissenting).

By quashing the writ, this Court leaves in place the decision of the Court of Civil Appeals affirming the juvenile court’s judgment terminating the parental rights of J.W., the mother, and M.W., the father. Because I believe that clear and convincing evidence did not support termination of the parental rights of M.W. and that the juvenile court relied on an improper factor in deciding to terminate M.W.’s parental rights, I respectfully dissent.

I. Factual Background

A caseworker for the Alabama Department of Human Resources (“DHR”) discovered that eight-year-old D.W. was living in “deplorable conditions” and removed him from the parents’ home. As the juvenile court explained:

“The residence was found to be unsuitable for habitation and unsafe for a child because of the filth, clutter, unsafe conditions, and bad state of repair of the structure. A worker witnessed the floors to be littered with mud. The furniture was in poor condition. Dirty dishes were piled in the kitchen. [The DHR caseworker] witnessed a cat jump up on the dishes in the sink with a mouse in its mouth. Exposed wiring hung from the ceiling and several windows had been busted out and improperly patched. Electricity was furnished to the home via an extension cord which ran from another building on the property.
“The DHR worker found that [D.W.] was dirty. His clothes were filthy and smelled, [D.W.’s] teeth were decaying and he had failed the first grade. [D.W.’s] Medicaid had been allowed to lapse. He was not taking his ADHD [attention deficit/hyperactivity disorder] prescription and was exposed to adults in the home who abused illegal drugs.”

M.W. took steps to remedy the situation. In particular, he moved out of the home into an apartment, which DHR found to be a suitable habitat for D.W. At DHR’s request, M.W. submitted to psychological testing; the psychologist “noted no problems” and did not recommend counseling. Although J.W. tested positive for drugs, including cocaine, M.W. “tested negative for all drugs.” M.W.’s counsel questioned a DHR caseworker regarding M.W.’s drug tests:

“Q. You’re aware that [M.W.] has never failed a drug test. Correct?
“A. I am aware of that. Yes.”

The foster-care worker gave the same answer: “[M.W.] never tested positive for substance abuse.”

Affection between father and son was strong. The DHR service plan noted that “[D.W.] is very attached to his father” and that “[M.W.] is very bonded and dedicated to [D.W.].” D.W.’s elementary-school principal stated that “D.W. was really upset when he was taken away from [his parents] the very first time. And we were all crushed. We felt bad for him because we realize that he loves, you know, [M.W.].” Asked about D.W.’s weekend visits with his father, the foster parent explained that “[D.W.] enjoyed going to visit his daddy. You know, he looked forward to it .... ” After the first couple of visits, the foster mother complained that D.W. had not bathed before being returned to her. “But after that was addressed,” she stated, M.W. sent D.W. back to her in clean clothes. Thus the cleanliness situation “got better.”

The parenting-assessment counselor asked M.W. if he would put D.W. back into an environment where he would be exposed to J.W.’s drug use. The counselor testified that “[M.W.] said that he would tell her she had to leave, but that if she didn’t, then they would just have to, kind of, deal with that when they got to it.” Although the counselor stated that MW. “minimizes the dangers presented by family drug use,” she also related that “[M.W.] specifically said he wished that he had been aware of the drug issues and had done something about it.” The foster-care worker admitted that M.W. had repeatedly told her that he would not expose D.W. to drug users. Yet she recommended termination of M.W.’s parental rights out of fear that M.W. did not appreciate the danger of such contact. When asked if rehabilitative services could ameliorate the concern, she answered: “I can’t say one way or the other.”

Responding to his attorney’s questions, M.W. testified as follows:

“Q. Did you keep your apartment on Moore Street clean?
“A. Yes.
“Q. And when [D.W.] would come to see you on Moore Street, would you give him a bath before he went back home?
“A. Yes.
“Q. And did you wash his clothes?
“A. Yes.
“Q. Did you ever allow [D.W.] to be around any drug use when he came to see you?
“A. No.
“Q. If the Court gave you back custody of [D.W.], would you keep him away from anybody who does drugs?
“A. Yes.
“Q. And do you believe that one day your wife and daughter will get off drugs?
“A. Yes.
“Q. And only when they get off drugs, is that when you’ll allow him to be back around your wife and daughter?
“A. Yes.
“Q. Until you’re sure that your wife and your daughter are no longer doing drugs, are you willing to keep them away from [D.W.]?
“A. Yes.
“Q. Do you fully appreciate the dangers to your child that are caused by drug use?
“A. Aware of the dangers, yes.”

When asked about the condition of the home, M.W., a carpenter, stated: “I’m, right now, remodeling the house. I’ve bought sheet rock. I’ve already tore out— gutted the inside. And ready to put new rafters up and put a new wall up. I’m in that process now.” Although M.W. stated that his ultimate goal was to return to the home, those statements did not mean that he intended to return to it in its former condition. Instead he testified that he was remodeling the home and that J.W. had moved to her mother’s residence while the work was occurring. Furthermore, he stated numerous times that he did not intend to allow D.W. to be around drug users. By moving to an apartment, M.W. demonstrated his seriousness about protecting his parental rights and being reunited with D.W.

II. Analysis

A. Clear-and-convincing evidence standard

“Inasmuch as the termination of parental rights strikes at the heart of the family unit, a court should terminate parental rights only in the most egregious of circumstances.” Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). Evidence that “the parents of a child are unable or unwilling to discharge their responsibilities” has to be “clear and convincing.” § 12-15-319(a), Ala.Code 1975. Clear and convincing evidence is “[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion.” § 6 — 11— 20(b)(4), Ala.Code 1975. Section 12 — 15— 319(a) provides a list of 12 factors for a trial court to consider in deciding whether to terminate parental rights. Very few of these factors seem to apply to M.W. For example, M.W. has not abandoned his child; does not have mental, emotional, or substance-abuse problems; has not physically abused his child; and has not been convicted of a felony. § 12-15-319(a)(l)-(6). M.W.’s inability or unwillingness to parent has not been demonstrated to a high degree' of probability. The foster-care worker’s statement that she “can’t say one way or the other” whether M.W. would benefit from rehabilitative services is further proof that the evidence for termination of his parental rights is unclear and unconvincing.

Because the court has to find that “the conduct or condition of the parents ... is unlikely to change in the foreseeable future,” § 12-15-319(a), “the existence of evidence of current conditions ... is implicit in the requirement that termination of parental rights be based on clear and convincing evidence.” D.O. v. Calhoun Cnty. Dep’t of Human Res., 859 So.2d 439, 444 (Ala.Civ.App.2003). By focusing on the conditions present in the house at the time of the initial removal of D.W., the court failed to consider that conditions at the time of trial control in a termination proceeding. At that time M.W. was living in an apartment, everyone had moved out of the house, remodeling was underway, and M.W. had frequently stated that he would not allow D.W. to live in a home with drug users. By focusing on the state of the house in March 2011, the juvenile court failed to apply this necessary branch of the termination analysis.

Even if a court finds that a child is “dependent,” see § 12-15-102(8), Ala.Code 1975, it must also determine before ordering termination of parental rights “whether all viable alternatives to termination have been considered.” Muffoletto v. State Dep’t of Human Res., 537 So.2d 939, 940 (AIa.Civ.App.1988). The court rejected the alternative of giving custody to C.W., a family member. D.W. had resided with C.W. for a month and a half when DHR removed him from C.W.’s custody.' The court’s order stated: “The other relative [C.W.] allowed [D.W.] to be around yet another relative with whom [DHR] had an ongoing case.” Based on this vague statement, the court found that C.W. was not a viable alternative to termination of parental rights. Yet D.W.’s elementary-school principal testified that D.W. did better at school after being in the custody of C.W., that C.W. was a good parent, and that C.W.’s own child did well at school. The stated grounds in the court’s order for rejecting placement with C.W. are neither clear nor convincing.

B. Failure to divorce

Apart from not applying the correct analysis under the relevant evidentiary standard, the court and DHR applied an astonishing factor as a ground for termination: the failure of M.W. to divorce J.W.

The development of this “ground” began with a question from the guardian ad litem to a DHR employee.

“Q. Okay. And at all times, to the best of your knowledge, at all times during the progression of this case, [M.W.] and [J.W.] have been legally married and have not filed for a divorce or any other sort of action to dissolve their marriage, have they?
“A. Not to my knowledge.”

The guardian ad litem then questioned D.W.’s foster-care worker as follows:

“Q. Okay. Have [M.W. and J.W.] at any point during the pendency of this case ever expressed to you that they will legally separate or legally divorce or do anything so that [M.W.] would be completely separate and apart from [J.W.]?
“A. No. Actually, they’ve stated the opposite.
“Q. Okay.”

Further questioning the foster-care worker, the guardian ad litem asked if M.W.’s refusal to divorce was a factor in the termination decision.

“Q. [I]t is safe to say that one of the biggest barriers to [M.W.’s] being reunified with [D.W.] was him maintaining his marriage to [J.W.] and to his expressed desire to return to the residence.... ?
“A. Yes. But not only [J.W.] but also his daughter....”

During closing argument, the guardian ad litem said that M.W. “continued to state throughout the pendency of this ease that as soon as we were all basically out of his life, that he was moving right back [to the home].” MW.’s attorney corrected her: ‘Your Honor, that’s a mischaracterization of the testimony you heard today. You heard [the foster-care worker] testify that [M.W.] said that as soon as everybody was off drugs, that he wanted to move back.” The guardian ad litem then recanted and pivoted to the divorce theme.

“I apologize if I misquoted. But regardless, he continued to maintain that he intended to stay married to [J.W.] ...
“... And due to the fact that they were still legally married and she wasn’t complying at all, I think that was grounds.”

MW.’s refusal to divorce J.W. at the behest of DHR was a crucial consideration in DHR’s decision to seek termination of his right to parent D.W. In its brief to this Court, DHR states: “One of the biggest barriers to reunification is MW.’s desire and intent to remain with J.W....” DHR’s brief, at 12. DHR later derides M.W.’s lawful marriage commitment as “his voluntary continued cohabitation with J.W.” Id. at 23. DHR seems to have presented M.W. with an ultimatum: divorce your wife or lose your son. Unfortunately, the trial judge repeated this apparent requirement in his termination judgment: “[D.W.’s] current caseworker testified and confirmed DHR’s efforts to get [M.W.] to acknowledge the problems in the family and the problems with the residence. During the pendency of this case, the [parents] have never offered to separate or divorce.” (Emphasis added.)

“Parental rights are indeed cherished and deserve the law’s utmost protection against unwarranted interference.” Ex parte Beasley, 564 So.2d at 954. What greater interference with parental rights could occur than to make the destruction of the marital bond a condition for a father to retain his relationship with his son? “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). No statute, court decision, or practice of the common law grants the State power to demand that a husband divorce his wife on penalty of losing his child. A California court, faced with a similar demand, noted:

“One of the most disturbing ... aspects of this case is ... the attempt of social workers to get Blanca to separate from her husband Rogelio. ‘Mr. P[J resented the attempts of the Social Services to break up his marriage. “They” have told his wife that if she leaves him, she might have a chance to get her children back.’ We are mindful that the Legislature has declared a prime purpose of California’s juvenile dependency statutes is the reunification of families, not their breakup.”

Blanca P. v. Superior Court of Orange Cnty., 45 Cal.App.4th 1738, 1755 n. 13, 53 Cal.Rptr.2d 687, 698 n. 13 (1996). See § 12-15-312(b), Ala.Code 1975 (setting out DHR’s obligation to make reasonable efforts to preserve and reunify families under most circumstances); L.M. v. Shelby Cnty. Dep’t of Human Res., 86 So.3d 377 (Ala.Civ.App.2011) (finding that DHR presented insufficient evidence to justify its demand that common-law parents separate as a condition for father to retain his parental rights); H.H. v. Baldwin Cnty. Dep’t of Human Res., 989 So.2d 1094, 1105 (Ala.Civ.App.2007) (noting “the overarching goal of family reunification”).

III. Conclusion

According to the United States Supreme Court, the right of parents to custody of their children “is perhaps the oldest of the fundamental liberty interests.... ” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). This fundamental liberty interest “does not evaporate simply because [parents] have not been model parents or have lost temporary custody of their child to the State.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The juvenile court failed to base its analysis on current conditions. The findings that M.W. was an unfit parent who could not be rehabilitated and that custody with C.W. was not a viable alternative are not supported by clear and convincing evidence. Furthermore, the court relied on the nonstatutory and highly questionable factor of M.W.’s refusal to divorce J.W. as a ground for termination of his parental rights.

Because I would reverse the Court of Civil Appeals’ judgment affirming the juvenile court’s decision to terminate M.W.’s parental rights and remand the case for the juvenile court to reconsider its findings, I respectfully dissent from the majority’s decision to quash the writ.

      . The parenting assessment did not occur until 10 months after D.W.’s removal from the home and only 2 months before DHR recommended termination of M.W.’s parental rights. The foster-care worker conceded that the assessment "was done for corroboration” and not for the purpose of rehabilitation. No services, such as parenting classes, were ever offered to M.W.

      . What if J.W. dies, thus undercutting a significant part of the juvenile court’s rationale for terminating M.W.’s parental rights? Could M.W. then seek reconsideration of the judgment under Rule 60(b), Ala. R. Civ. P.?