author: KITCHENS, Justice, PIERCE, Justice,

text:
    LeDarius BONDS a/k/a Le’Darius Bonds a/k/a Poo v. STATE of Mississippi.
    No. 2012-CT-00640-SCT.
    Supreme Court of Mississippi.
    May 22, 2014.

      Office of State Public Defender by George T. Holmes, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, John R. Henry, Jr., attorneys for appellee.
   ON WRIT OF CERTIORARI.

KITCHENS, Justice,

for the Court:

¶ 1. LeDarius Bonds was convicted of murder by a jury in the Pike County Circuit Court in April 2012 and sentenced to life in prison. Bonds appeals his conviction, arguing that the trial court erred in admitting Exhibit 39, a gruesome photograph that he contends was more prejudicial than probative, and that the trial court erred in allowing a jury instruction which informed the jury that it could infer malice from the use of a deadly weapon. Finding that Exhibit 39 was far more prejudicial than probative, we reverse the conviction and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2. The facts are taken from the Court of Appeals opinion.

LaJeremy Seabron went missing on August 27, 2010, after giving Bonds, his coworker at the Sanderson Farms plant, a ride after work. After Seabron went missing, the police department received a call from Bonds, who told them that he was being threatened at work by Sea-bron’s friends about Seabron’s disappearance. Bonds initially told police that he did receive a ride home from Seabron, but he had not seen Seabron since then. On September 1, 2010, a burned vehicle registered to Seabron’s mother was discovered. The following day, Seabron’s decomposing body was discovered several miles away from the burned vehicle. An autopsy showed that Seabron died from a single gunshot wound to the back of the head.
On September 3, 2010, investigators interviewed Bonds. During this interview, Bonds told the investigators that Seabron was a member of a local gang. Bonds had repeatedly declined Sea-bron’s invitations to join the gang, which according to Bonds, resulted in Seabron threatening to kill Bonds and calling him a snitch. Bonds further told the investigators that the men had worked out their differences. Bonds admitted that Seabron had given him a ride home after work on August 27, 2010, but Bonds stated that he had not seen him since that time, even though Seabron had planned to return to Bonds’s apartment.
After investigators questioned this version of events, Bonds then told another version involving another car stopping them on the way home from work. The individuals in the other car took Seabron at gunpoint and threatened to kill Bonds or someone in his family. Bonds again changed his story. In this next version, Seabron pulled over on the roadside and told Bonds he wanted him to see something. According to Bonds, Seabron then approached him from behind and cocked a gun. A struggle ensued, and the gun discharged. Bonds was able to gain possession of the gun and shot Sea-bron in the back of the head. He then told investigators that he left Seabron in the automobile, but came back a day or two later to remove Seabron’s body and move and burn the automobile. This portion of the story again changed to Bonds leaving Seabron on the ground after shooting him, driving the automobile away, hiding the gun, and then burning the automobile at another location. Bonds also led investigators to Seabron’s gun, which he claimed he hid in a vacant house after the incident. The gun, with a pearl-like handle, was recovered in the vacant house, and it had one spent shell casing and five live rounds. No fingerprints or ballistic data was able to be obtained from the gun or the bullet fragments recovered from Seabron’s skull.
Several days later, Bonds requested to speak to investigators yet again. He changed his version of the events again. This time, Bonds stated that during the struggle, he was able to force Seabron’s arm behind his back. This position put Seabron’s hand holding the gun facing toward the back of Seabron’s head. The gun discharged, shooting Seabron in the back of the head.
Bonds was indicted by a Pike County grand jury on May 5, 2011, for the murder of Seabron in violation of Mississippi Code Annotated section 97-3-19 (Rev. 2006). His jury trial began on April 3, 2012, and ended on April 5, 2012, with the jury finding him guilty of the murder of Seabron. In addition to Bonds’s statements he made to the investigators, the jury heard testimony from several witnesses, including Bonds’s roommate at the time, Brandon Hall. Hall testified that he usually gave Bonds rides to and from work; however, on August 27, 2010, Bonds told him he did not need a ride home from work that day because Seabron was going to give him a ride home. Hall also testified that when Bonds came home later that day, Bonds asked him to tell people that the last time he saw Bonds and Seabron together was at 4:30 p.m. on August 27, 2010. This was an untrue statement. According to Hall’s testimony, Bonds told him that he had dumped Seabron’s body and burned the car. Lastly, Hall testified that Bonds moved out of their apartment shortly after Seabron went missing. As Bonds was moving out, Hall said he had seen Bonds throw a gun over a fence near their apartment, and he had also seen a gun with a pearl-like handle in Bonds’s room a few days before Seabron went missing.
In addition, the State presented the jury with several crime-scene photographs depicting the decomposing body of Sea-bron. Bonds’s attorney objected to the introduction of the photographs. The circuit court overruled the objection and allowed several pictures into evidence; however, it also sustained the objection as to some pictures prohibiting their introduction into evidence.
After deliberations, the jury found Bonds guilty of the murder of Seabron. The circuit court sentenced Bonds to life in the custody of the MDOC. Bonds timely executed the current appeal.

Bonds v. State, — So.3d —, 2013 WL 2996109, **1-2 (¶¶ 2-8) (Miss.Ct. App. June 18, 2013).

¶ 3. On appeal, Bonds argued that the trial court erred in admitting gruesome photographs of the victim’s decomposing skull and body that were more prejudicial than probative. He also argued that jury instruction S-7, which instructed the jury that it could infer malice from the use of a deadly weapon, was given in error. The Court of Appeals held that the trial court did not abuse its discretion in admitting the photographs, because it carefully considered the potential prejudicial effect of each photograph admitted and found that several had evidentiary value. Id. at-, 2013 WL 2996109, at *3 (IT 13). It also found that the jury instruction was not erroneous, as it merely allowed the jury to infer malice from the use of a deadly weapon, and did not instruct jurors to presume it, which would have shifted the State’s burden of proof. Id. at -, 2013 WL 2996109, at *5 (¶ 17). The Court of Appeals, although noting that the State’s brief was woefully inadequate, sloppy, and unprofessional, affirmed Bonds’s conviction and sentence. Id. at-, 2013 WL 2996109, at *5 (¶¶ 18-19).

¶ 4. In his petition for certiorari, Bonds essentially makes the same arguments, but focuses his claim of erroneous admission of prejudicial photographs on Exhibit 39, which showed a full-color, close-up, frontal view of the victim’s decomposed face. He contends that this photograph had no evi-dentiary value and was used solely to inflame the passions of the jury. He reiterates his argument that jury instruction S-7 was given erroneously. We granted Bonds’s petition for certiorari, and we limit our review to the admission of evidence issue. M.R.A.P. 17(h).

STANDARD OF REVIEW

¶ 5. We review the decision to admit or exclude evidence under an abuse of discretion standard. Grim v. State, 102 So.3d 1073,1078 (¶ 11) (Miss.2012).

ANALYSIS

¶ 6. LaJeremy Seabron died as a result of a gunshot wound to the back of his head. This was not disputed at trial. What was disputed was how he was shot. The State argued that Bonds had shot Seabron in the back of the head. Bonds had told several different versions of his recollection of the events of that night. In one of the versions, he stated that Seabron maintained possession of the pistol, but his arm became pinned behind his back and, while so positioned, he accidentally shot himself in the head.

¶ 7. The State sought to admit several photographs of Seabron’s head, some of which showed the entrance wound to the back of the head. Bonds objected to the admission of the photographs at trial and offered to stipulate that the cause of death was a bullet wound to the back of the head. The trial court carefully examined the photographs and determined whether each one should be admitted based upon its relative probative value and prejudicial effect. It is the admission of one of the photographs, Exhibit 39, that Bonds contends was extremely prejudicial and requires reversal. Bonds argues that Exhibit 39, a full-color, close-up photograph of the front of Seabron’s facial area, showing “decomposing skin falling off, a dislocated mandible, and maggots crawling all around and in the vacant occipital orbits,” was not probative of any material fact and was extremely prejudicial.

¶ 8. This Court has held that a trial court must conduct a two-part test to determine whether a crime victim’s photograph is admissible. “First, the trial court must determine whether the proof is absolute or in doubt as to identity of the guilty party. Secondly, it must be determined whether the photographs are necessary evidence or simply a ploy by the prosecutor to arouse the passion and prejudice of the jury.” Manix v. State, 895 So.2d 167, 178 (¶ 33) (Miss.2005). Such photographs should not be admitted “where the killing is not contradicted or denied, and the corpus delicti and the identity of the deceased have been established.” Le v. State, 913 So.2d 913, 955 (Miss.2005).

¶ 9. This Court specifically has held that the admission of a “full-color, close-up view of the decomposed, maggot-infested skull” of the victim constituted reversible error. McNeal v. State, 551 So.2d 151, 159-60 (Miss.1989). There, the Court reversed a guilty verdict in a murder trial due to the admission of three gruesome photographs showing the victim’s maggot-infested skull. Id. at 160. The Court noted that the photographs were “so graphic as to arouse the passion of the jury[,]” and that, “[wjithout describing every morbid detail, it is sufficient to say that these are some of the most gruesome photographs ever presented to this Court.” Id. at 159. The State argued that the photographs were relevant in proving the corpus delicti; but the Court found that “the probative value of the photographs is outweighed by their tendency to inflame and prejudice the jury.” Id. Importantly, the Court held that “the state could have shown the angle and entry of the bullet wound without the full-color, close-up view of the decomposed, maggot-infested skull.” Id. (emphasis added).

¶ 10. Exhibit 39 is a full-color, close-up, frontal photograph of Seabroris maggot-infested skull and facial area offered into evidence by the State, despite the fact that there was no dispute that Seabron had been shot in the back of the head. However, the State argued that, in one of Bonds’s versions of the incident, Bonds had said that Seabron had shot himself in the back of the head when his arm was pinned behind his back. Therefore, the State contended, the angle of entry was important to disprove that version of events. The trial court admitted the photograph, observing that it showed part of a hairline fracture about which the forensic pathologist testified when describing Seabroris gunshot wound. The fracture ran from the entrance wound in the back of the head to the front of the skull. However, that fracture was plainly evident in Exhibit 36, a photograph of the side and rear of the head, which did not depict decaying flesh and maggot-infested eye sockets. The forensic pathologist testified about the crack when referring to this other, less prejudicial, photograph:

A: ... That fracture is going to extend to those sutures and also to the bone, and then goes to the front of the skull.
Q: Is there anything other' than the actual hole in the skull, is there any fractures or anything, indicated in this photograph?
A: Just the defect [and] the fracture that is coming from the defect.
Q: Okay. Are you saying that that is a natural defect or that — the part that I illuminated is a crack from the gunshot wound?
A: It’s a fracture or a crack from that entry defect.

¶ 11. Exhibit 36 showed the crack from the entry wound, and the pathologist relied on that photograph to testify about the fracture. Although Exhibit 39 displayed the extent of the crack to the front of the skull, the expert did not rely on that picture to testify about the angle of entry of the bullet. When asked about Exhibit 39, the expert stated:

Basically, this is a front view of that skull and the fracture that I mentioned before that comes from the entry. Remember, it’s on the right side. So it just come[s] to the side of the skull and also to the front. And you can see that linear fracture going through here that goes to the back.

¶ 12. The foregoing quotation constitutes the entirety of the prosecution’s use of Exhibit 39. Exhibit 39 was not used to show the angle of entry. Two other photos, Exhibits 37 and 38, actually portrayed the section of the exterior front portion of the skull where the bullet impacted after it had passed through the brain from the entrance wound in the rear of the skull. Exhibit 36 showed the entrance wound. As in McNeal, here, “the state could have shown the angle and entry of the bullet wound without the full-color, close-up view of the decomposed, maggot infested skull.” Id. Further, “the killing [wa]s not contradicted or denied, and the corpus delicti and the identity of the deceased [had] been established.” Le, 913 So.2d at 955.

¶ 13. At this point, we reach a dilemma. In addressing the admission of potentially prejudicial photographs in a criminal trial, this Court in Le stated:

[The abuse of discretion] standard is very difficult to meet. In fact, the “discretion of the trial judge runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Brown v. State, 690 So.2d 276, 289 (Miss.1996); Holly v. State, 671 So.2d 32, 41 (Miss.1996). “At this point in the development of our case law, no meaningful limits exist in the so-called balance of probative/prejudicial effect of photographs test.” Chase v. State, 645 So.2d 829, 849 (Miss.1994) (quoting Williams v. State, 544 So.2d 782, 785 (Miss.1987)).

Le, 913 So.2d at 955-56 (¶ 158) (quoting Stevenson v. State, 733 So.2d 177, 180 (Miss.1998)). If that truly is the law, then we must affirm. However, we find that the language in Le and Stevenson goes too far. Meaningful limits must be placed on a trial judge’s discretion to admit photographs, and those limits must be defined by weighing a photograph’s probative evi-dentiary value against its prejudicial potential to arouse the passions of the jury. See M.R.E. 403. Although trial judges have wide discretion in admitting photographs, our powers of appellate review would mean little if that discretion truly was unlimited. Accordingly, today we overrule that line of cases which holds that trial judges have no meaningful limit on their discretion in admitting photographs at trial. On appeal, this Court will give great deference to trial judges in the sound exercise of their discretion in the admission of photographs, but we are bound as an appellate court to determine whether such discretion has been abused by the admission of a photograph whose prejudicial effect far outweighs its probative value.

¶ 14. This holding also will bring back into line this Court’s criminal Rule 403 photograph jurisprudence with its civil counterpart. In civil cases, which do not involve the deprivation of life or liberty, this Court imposes an abuse of discretion standard on the trial court’s admission of photographic evidence, but it never has held that the discretion “has no meaningful limits” or “runs toward almost unlimited admissibility.” See Eckman v. Moore, 876 So.2d 975, 984-85 (IT 31) (Miss.2004) (“We have held that the admission of evidence is well within the sound discretion of the trial court, subject to reversal on appeal only if there be an abuse of that discretion.”) (citing Ill. Cent. R.R. v. Gandy, 750 So.2d 527, 531 (Miss.1999) (emphasis added)); see also Miss. Transp. Comm’n v. Fires, 693 So.2d 917, 920 (Miss.1997); Terrain Enters., Inc. v. Mockbee, 654 So.2d 1122, 1128 (Miss.1995). In Eckman, the Court reversed the trial court’s decision to admit several photographs and videos of the decedent, as they were cumulative and highly prejudicial, clearly finding that the trial court had abused its discretion in admitting them and that the admission of photographs in civil cases did not run toward unlimited admissibility. Eckman, 876 So.2d at 985-86 (¶¶ 33-37). Both civil and criminal cases follow the same rules of evidence, and the same standard of review and amount of discretion given a trial judge should apply. There is no rational reason for this Court to apply a more stringent application of our evidentiary rules to photographs in civil eases than we do in criminal cases.

¶ 15. Here, we are constrained to reverse. This Court has carefully examined Exhibit 39 and finds that it is gruesome in the extreme in its depiction of a rotting, maggot-infested, disfigured skull and face. The prejudicial effect of the admission of Exhibit 39 far outweighs any evidentiary value it had, in light of the multiple other items of evidence the State could have used — and much of which it did use — to demonstrate the angle of entry and internal path of the bullet. The fact that during voir dire examination each juror indicated that he or she would not be persuaded by disturbing photographs does not ameliorate the photograph’s prejudicial impact’s greatly outweighing its probative value. The dissent finds that the probative value of the photograph outweighs any prejudicial effect. We find the opposite. The photograph was gruesome and cumulative and should not have been admitted. McNeal rightly established that the admission of such evidence is reversible error and infringes upon an accused’s right to a fair trial. Accordingly, the trial court in the instant case abused its discretion when it admitted Exhibit 39.

CONCLUSION

¶ 16. The close-up, full-color photograph of the shooting victim’s rotting head was far more prejudicial than probative, and in light of the evidence at the State’s disposal, had little, if any, evidentiary value. The State could have shown the angle of entry of the bullet without resorting to this graphic and gruesome depiction. In McNeal, this Court held that the introduction of “the full-color, close-up view of the decomposed, maggot infested skull,” in light of alternative ways to display the angle of entry of the bullet, was reversible error. McNeal, 551 So.2d at 159. In that respect, this case is indistinguishable from that exact situation. We also overrule any and all precedent to the effect that trial judges have no meaningful limits on their discretion to admit photographs at trial. While they do have wide discretion, there are meaningful limits, and they are defined by weighing the probative value of the photograph against its prejudicial effect and potential to inflame and arouse the passions of the jury. Accordingly, we reverse the decision of the Court of Appeals, reverse LeDarius Bonds’s conviction and sentence, and remand his case to the Pike County Circuit Court for a new trial consistent with this opinion.

¶ 17. REVERSED AND REMANDED.

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

PIERCE, Justice,

dissenting:

¶ 18. I respectfully dissent from the majority’s decision finding that the probative value of exhibit 39 was outweighed by its prejudicial effect.

¶ 19. In McNeal v. State, although this Court found that the photographs were inadmissible, this Court went on to state the following:

In arriving at the finding above, we do not presume to conclude that every gruesome photograph admitted into evidence constitutes an abuse of discretion; however, when presented with photographs such as the ones in this case, we caution the trial judge to carefully consider all the facts and circumstances surrounding the admission of this particular type of evidence. More specifically, the trial court must consider: (1) whether the proof is absolute or in doubt as to identity of the guilty party, as well as, (2) whether the photographs are necessary evidence or simply a ploy on the part of the prosecutor to arouse the passion and prejudice of the jury.

McNeal v. State, 551 So.2d 151, 159-60 (Miss.1989). This Court also stated, “... it is sufficient to say that these are some of the most gruesome photographs ever presented to this Court.” Id. This Court stated that it would not describe every “morbid detail” of the photographs, but we do know that there were three photographs of a maggot-infested skull. Id. The case before us also involves the admission of a photograph depicting a maggot-infested skull, which is, without a doubt, unpleasant. However, it is not presently one of the most gruesome photographs that this Court has seen, regardless of its seemingly distinct similarities to the photograph in McNeal. Id.

¶ 20. For the sake of brevity, I will not include an exhaustive list of each time this Court has upheld the admissibility of unpleasant, and even gruesome, photographs. McNeal v. State is a rare occasion in which this Court found photographs to be more prejudicial than probative, because this Court has stated that photographs should be admitted if they “... have evidentiary value when they aid in describing the circumstances of the killing, the location of the body, the cause of death, or clarify or supplement a witness’s testimony.” Chamberlin v. State, 989 So.2d 320, 341 (Miss.2008) (citing Simmons v. State, 805 So.2d 452, 485 (Miss.2001)). Here, the State used the photograph to disprove one of Bonds’s stories, in which the victim had accidentally shot himself in the back of the head. It should also be noted that the trial court found two photographs to be inadmissible based on the defenses’s offered stipulation as to the cause of death, which would have rendered their admission more prejudicial than probative.

II21. Further, there is nothing to support that the photograph was a ploy on the part of the State. On the contrary, the record reveals that during voir dire, the State represented to the potential jurors that photographs would be presented that would depict the body after some time had passed, including “... severe decomposition, as well as some insect involvement. ...” The State went on to instruct the potential jurors to raise their card if those photographs would affect their ability to decide the defendant’s guilt or innocence based on all of the evidence or on whether the State proved its case beyond a reasonable doubt. The record reflects that no jurors indicated that they would be persuaded based solely on unpleasant photographs. The United States Court of Appeals for the Fifth Circuit determined that similar questioning to potential jurors, during voir dire, aided in limiting any prejudicial impact on the jury. United States v. Collins, 368 Fed.Appx. 517, 523 (5th Cir.2010) (The court found the probative value of six photographs outweighed the prejudicial effect, even though they were “shocking and gruesome.” The photographs depicted the victim, as found at the crime scene and during autopsy, without a head and without hands).

¶ 22. Accordingly, I would find that the probative value of the photograph outweighed any prejudicial effect, as it described the circumstances of the killing and the cause of death, and it also disproved one of Bonds’s many versions of events. Chamberlin, 989 So.2d at 341 (citing Simmons, 805 So.2d at 485). Also, the photograph was referenced by the forensic pathologist, and the trial court sufficiently conducted a Rule 403 balancing test on the record. Chamberlin, 989 So.2d at 341 (citing Simmons, 805 So.2d at 485); Miss. R. Evid. 403. Lastly, I would find that any potential prejudicial effect was overcome by the State specifically addressing the issue during voir dire. Collins, 368 Fed. Appx. at 523.

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

      . We share the Court of Appeals’ disappointment in and disapproval of the State’s brief. The statement of facts was three sentences long. It stated, "Defendant took a gun and shot his victim in the back of the heard [sic ]. Defendant took the body and burned his victim’s car. Defendant gave several statements to police which ultimately led to admitting his involvement in his victim's death.” The conclusion clearly came from a different brief that the State did not bother to change. It states, "Based upon the arguments presented herein as supported by the record on appeal the State would ask this reviewing court to affirm the trial court order denying relief, revoking the post-release supervision and imposing the remainder of the suspended sentences.’’ This is a direct appeal of a murder conviction and sentence and clearly has nothing to do with post-release supervision or suspended sentences. This brief is unprofessional and disrespectful to our state's appellate courts and the victim for whom the State seeks justice. Like the Court of Appeals, we expect much better.

      . We emphasize that this ruling does not overrule the general principle that trial judges have considerable discretion in ruling on the admissibility of photographs. Instead, this ruling clarifies that their considerable discretion is not unlimited. Allowing trial judges unlimited discretion to admit photographs would render appellate review irrelevant. We are simply reconciling our case law with the nature and purpose of the Mississippi Rules of Evidence, particularly Rule 403.


source: Caselaw Access Project

author: WALLER, Chief Justice, KITCHENS, Justice,

license: Public Domain

text:
    HOSPITAL MD, LLC and Hospital MD of Yazoo City, Inc. v. Rickesha LARRY.
    No. 2012-IA-01661-SCT.
    Supreme Court of Mississippi.
    May 22, 2014.

      L. Carl Hagwood, Jackson, Mary Frances Stallings-England, attorneys for appellants.
    Precious Tyrone Martin, Suzanne Grig-gins Keys, Jackson, attorneys for appellee.
   WALLER, Chief Justice,

for the Court:

¶ 1. Rickesha Larry filed suit against Hospital M.D., LLC, and Hospital M.D. of Yazoo City, Inc. (collectively Hospital M.D.), among other defendants, in a medical-malpractice action. Hospital M.D. moved for summary judgment, arguing Larry had failed to provide it with notice pursuant to Mississippi Code Section 15-1-36(15); thus the sixty-day tolling period was not triggered and the statute of limitations had expired prior to Larry filing her initial complaint. The trial court denied Hospital M.D.’s motion for summary judgment and entered two orders. Hospital M.D. filed an interlocutory appeal with this Court, which was granted. See M.R.A.P. 5. This Court finds that the motion should have been granted, because Larry failed to send Hospital M.D. the statutorily required .pre-suit notice and subsequently filed her complaint outside the applicable statute of limitations. Further, the medical-malpractice-discovery rule did not serve to toll the two-year statute of limitations. Accordingly, we reverse the Yazoo County Circuit Court’s orders denying the motion for summary judgment and remand the case to the trial court to grant summary judgment in favor of Hospital M.D., and to conduct further proceedings as to any remaining parties.

FACTS AND PROCEDURAL HISTORY

¶ 2. Larry began to experience complications from a flu vaccine she received at the University of Southern Mississippi. After returning home to Yazoo City, Larry was treated by Dr. David Johnson at the emergency room of King’s Daughters Hospital of Yazoo City (KDH) on December 1, 2009. Dr. Johnson was employed by Hospital M.D., which provided emergency-room physicians for KDH. Larry’s underlying medical-malpractice claim relates to Dr. Johnson’s treatment of her at KDH.

¶ 8. The asserted negligence occurred on December 1, 2009. Larry allegedly requested her medical records in April 2011 and again on June 2, 2011; however, the record does not indicate the exact date she received them. On October 8, 2011, Larry sent pre-suit notice letters to Dr. Johnson and KDH. December 1, 2011, marked two years from the date of the alleged negligence. On December 9, 2011, Larry’s counsel alleged they first learned of the existence of Hospital M.D. and that Dr. Johnson was not an employee of KDH in an email sent by a senior claims consultant for KDH’s insurer. The record also indicates that Hospital M.D. was named as an additional insured on Dr. Johnson’s insurance policy and appeared in the “cc” line of a letter sent by KDH’s insurance adjuster to Larry on October 12, 2011.

¶ 4. On January 3, 2012, Larry filed her initial complaint, naming KDH, Dr. Johnson, Hospital M.D. of Yazoo City, Hospital M.D., LLC, and John Does 1-5, as defendants. On March 13, 2012, Larry filed her first amended complaint to add the University of Southern Mississippi as a defendant. Hospital M.D. moved for summary judgment on May 23, 2012. Larry’s notice-of-claim letters were finally served on Hospital M.D. on June 5, 2012. A hearing was held on Hospital M.D.’s motion for summary judgment on September 18, 2012.

¶ 5. At the hearing, Hospital M.D. argued the motion should be granted because Larry failed to serve Hospital M.D. with pre-suit notice as required by Mississippi Code Section 15-1-36(15), and that subsequently, she filed her complaint after the two-year statute of limitations had run. Further, Hospital M.D. argued it was Larry’s duty to determine Dr. Johnson’s employment status and not the duty of any other party involved. In Hospital M.D.’s opinion, any order allowing Larry to amend her complaint would be futile because her initial complaint was filed without notice and after the limitations period.

¶ 6. Larry argued she performed her due diligence by acquiring her medical records from KDH, and those records made no mention of Hospital M.D. It was only after she had sent out her notice-of-claim letters to defendants known at that time and beyond the initial two-year statute of limitations had ostensibly run that she learned from KDH’s insurance company that Hospital M.D. was Dr. Johnson’s employer. In light of this, Larry argued the medical-malpractice discovery rule applied to toll the applicable statute of limitations until she learned of this relationship. Further, Larry argued the proper remedy was for the trial court to dismiss her amended complaint without prejudice and then allow her leave to file a second amended complaint to bring in Hospital M.D.

¶ 7. The trial court denied Hospital M.D.’s motion for summary judgment, finding Larry “put forth due diligence in ascertaining the status or relationship of Hospital M.D. with the doctor, Dr. Johnson ... once they received sufficient notice that there was an additional defendant.” The trial court subsequently issued an order of dismissal without prejudice, noting this remedy follows the procedural guidance of this Court’s decision in Price v. Clark, 21 So.3d 509 (Miss.2009). The trial court also issued an order granting Larry leave to file a second amended complaint, finding the medical-malpractice-discovery rule applied to “toll the state of the statute of limitations as to Hospital M.D. Defendants until December 9, 2011, when the existence and involvement of the [sic] those Defendant’s was disclosed, see Stringer v. Trapp, 30 So.3d 339 (Miss. 2010).” Hospital M.D. appeals the denial of its motion for summary judgment and the trial court’s subsequent orders, raising two basic issues which are simplified and reorganized for the purposes of this opinion:

I. Whether the trial court erred by applying the medical-malpractice-discovery rule to toll the statute of limitations.
II. Whether the trial court erred in applying the procedural guidance of Price v. Clark, 21 So.3d 509 (Miss.2009).

STANDARD OF REVIEW

¶ 8. A trial court’s grant or denial of a motion for summary judgment is reviewed de novo. Johnson v. Pace, 122 So.3d 66, 68 (Miss.2013). The evidence in the motion is viewed- in the light most favorable to the party opposing the motion. Davis v. Hoss, 869 So.2d 397, 401 (Miss.2004). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

DISCUSSION

I. Whether the trial court erred by applying the medical-malpractice-discovery rule to toll the statute of limitations.

¶ 9. When filing a complaint against a private healthcare provider for professional negligence, Mississippi Code Section 15-1-36(15) requires the defendant be given sixty days’ prior written notice of the intention to begin the action. Miss. Code Ann. § 15-1-36(15) (Rev.2012). Negligence actions against a private medical provider like Hospital M.D. are governed by a two-year statute of limitations from the date of the alleged negligent act or when “with reasonable diligence might have been first known or discovered.” Miss.Code Ann. § 15-1-36(2) (Rev.2012). This Court has stated that the medical-malpractice-discovery rule tolls the statute of limitations until the plaintiff “(1) has knowledge of the injury, (2) has knowledge of the cause of the injury, and (3) knows the relationship between the practitioner and the injury.” Stringer v. Trapp, 30 So.3d 339, 342 (Miss.2010) (emphasis added) (citing Smith v. Sanders, 485 So.2d 1051,1053 (Miss.1986)). Thus, “although a hidden or unseen injury might ... serve to trigger the discovery rule and toll the statute of limitations, it is not because the injury itself is hidden or unknown, but rather because the negligence which caused the injury is unknown.” Sutherland v. Estate of Ritter, 959 So.2d 1004, 1008 (Miss.2007).

¶ 10. Larry argues that, under the “relationship between the practitioner and the injury” prong of the discovery rule, the statute of limitations was tolled until December 9, 2011, the date Larry learned of the of the relationship between Dr. Johnson and Hospital M.D. Further, Larry claims she performed her due diligence in obtaining her medical records; however, the records contained no mention that Dr. Johnson was an employee of Hospital M.D. “Simply put, Larry did not learn of the existence of Hospital M.D ... and their possible connection to her injuries until December 9, 2011, despite her exercise of reasonable diligence.”

¶ 11. Hospital M.D. argues the discovery rule is inapplicable because the issue is the employment relationship between Dr. Johnson, KDH, and Hospital M.D., not the relationship between Dr. Johnson and Larry’s injury. Further, it argues “no medical records will list the employment status of doctors treating patients.” Thus, Hospital M.D. claims Larry’s argument places the burden on it to notify Larry of Dr. Johnson’s employment status.

¶ 12. The alleged negligence by Dr. Johnson occurred on December 1, 2009. Larry filed her initial complaint naming Hospital M.D. on January 3, 2012. Larry admits she did not send Hospital M.D. the notice required by statute, which would have tolled the statute of limitations; thus, unless the discovery rule applied, any claim against Hospital M.D. expired on December 1, 2011. We hold that the medical-malpractice-discovery rule is inapplicable to this case. The statute of limitations was not tolled as to Hospital M.D.; therefore, Larry’s complaint was filed beyond the statute of limitations as to them.

¶ 13. In the trial court’s order granting Larry leave to amend, it found that the discovery rule applied to toll the statute of limitations until December 9, 2011, as to Hospital M.D., citing Stringer v. Trapp, 30 So.3d 339 (Miss.2010). In Stringer, this Court found the trial court erred in dismissing the action against Dr. Trapp because he never met with the plaintiff and made no assertion that the plaintiff was made aware of his involvement in the plaintiffs treatment until she received her medical records. Stringer, 30 So.3d at 343. This Court noted that, although the injury was known to the plaintiff, ‘if the patient has no reason to know that the doctor’s negligence in performing the procedure caused the complications, the discovery rule will apply....’” Id. at 342 (quoting Sutherland, 959 So.2d at 1009) (emphasis omitted).

¶ 14. The facts of the case before us are distinguishable from Trapp and this Court’s prior precedent regarding the discovery rule. Here, Larry knew of Dr. Johnson’s relationship to her injury from the start and, in fact, sued him individually. Thus, it was not the relationship between Dr. Johnson and her injury that Larry was unaware of before the statute of limitations ran on her claim. Rather, it was Dr. Johnson’s employment status with Hospital M.D. Because the issue in this case involves Dr. Johnson’s relationship with Hospital M.D. and not his relationship to Larry’s injury, the discovery rule does not apply to toll the statute of limitations. See Huss v. Gayden, 991 So.2d 162, 165 (Miss.2008) (quoting Smith, 485 So.2d at 1052) (“The operative time is when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner.”) (emphasis added).

¶ 15. While the medical-malpractice discovery rule does not apply to determining the identity of Dr. Johnson’s employer, we must note Larry’s lack of diligence to investigate this claim. There is no evidence showing Larry did anything more than request her medical records in investigating her claim. Nothing indicates that Larry made any inquiry into the employment status of Dr. Johnson, seeming to proceed under the assumption that Dr. Johnson was an employee of KDH. Further, Larry does not allege, nor is there any evidence, that KDH or Dr. Johnson intentionally delayed or attempted to mislead Larry about Dr. Johnson’s employment status with Hospital M.D. See Gorton v. Rance, 52 So.3d 351, 357 (Miss.2011) (“We observe that [the Plaintiff] had a legal duty to conduct a due-diligence inquiry into the true employment status of potential defendants.”). We find Larry simply failed to timely investigate Dr. Johnson’s employment status.

II. Whether the trial court erred in applying the procedural guidance of Price v. Clark, 21 So.3d 509 (Miss.2009).

¶ 16. The trial court found that the proper remedy was dismissal of Larry’s complaint without prejudice and then allowing her leave to amend to properly provide Hospital M.D. notice and file a second amended complaint, pursuant to this Court’s procedural guidance in Price v. Clark, 21 So.3d 509 (Miss.2009). Larry admits in her brief that she improperly named Hospital M.D. in her complaint because she did not provide it with pre-suit notice pursuant to Mississippi Code Section 15-1-36. However, she argues that, in a medical-malpractice action, filing a suit without providing pre-suit notice has no legal effect if the statute of limitations has not expired. Then, dismissal without prejudice is the proper course of action. Hospital M.D. argues that this case is controlled by Arceo v. Tolliver, 19 So.3d 67 (Miss.2009), which was handed down a month after Price. It argues that, because Larry did not comply with Mississippi Code Section 15-l-36(15)’s notice requirement, the sixty-day tolling period did not apply and the statute of limitations expired before Larry filed her complaint.

¶ 17. In Price, this Court found that “a properly served complaint — albeit a complaint that is wanting of proper pre-suit notice — should still serve to toll the statute of limitations until there is a ruling from the trial court.” Price, 21 So.3d at 522. Applying this logic to the facts, this Court then found that the initial complaint was filed and served within the statute of limitations period, but the plaintiff failed to provide the proper notice. Id. This Court held that dismissal of the complaint without prejudice was the proper remedy, because the properly filed complaint served to toll the statute of limitations until the trial court had a chance to rule on the complaint. Id. In Arceo, this Court noted that, ordinarily, dismissal without prejudice is the remedy where a plaintiff fails to comply with statutory pre-suit notice; “[hjowever ... where a suit is dismissed for any reason and the statute of limitation has expired, dismissal with prejudice is warranted.” Arceo, 19 So.3d at 75.

¶ 18. We find that the trial court erred in applying the procedural guidance in Price because Larry’s complaint was filed without notice and after the statute of limitations had run. Unlike Price, where the plaintiff filed the initial complaint within the limitations period, Larry’s complaint missed the December 1, 2011, deadline. Further, Larry admittedly failed to meet the notice requirements of Section 15 — 1— 36(15). Thus, the proper remedy was dismissal with prejudice of Larry’s claim against Hospital M.D. See Arceo, 19 So.3d at 75-76.

CONCLUSION

¶ 19. We hold that the trial court’s application of the medical-malpractiee-discov-ery rule to toll the statute of limitations in determining employer/employee status was error. The two-year statute of limitations deadline ran on Larry’s claim against Hospital M.D. on December 1, 2011, because it was not served with any pre-suit notice.

¶ 20. Therefore, we reverse the Yazoo County Circuit Court’s orders and remand the case for the trial court to grant Hospital M.D.’s motion for summary judgment and for further proceedings as to any remaining parties.

¶ 21. REVERSED AND REMANDED.

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

KITCHENS, Justice,

dissenting:

¶ 22. Because I disagree with my learned colleagues that reasonable diligence could have led to the discovery of Dr. Johnson’s employment status, I find that the trial court was not in error in denying summary judgment to Hospital MD. I, therefore, respectfully dissent.

¶ 23. The majority is correct that the medical malpractice discovery rule tolls the statute of limitations until the plaintiff “(1) has knowledge of the injury, (2) has knowledge of the cause of the injury, and (3) knows the relationship between the practitioner and the injury.” Stringer v. Trapp, 30 So.3d 339, 342 (Miss.2010) (citing Smith v. Sanders, 485 So.2d 1051,1053 (Miss.1986)). The majority also correctly recognizes that “although a hidden or unseen injury might ... serve to trigger the discovery rule and toll the statute of limitations, it is not because the injury itself is hidden or unknown, but rather because the negligence which caused the injury is unknown.” Sutherland v. Estate of Ritter, 959 So.2d 1004, 1008 (Miss.2007). I agree with the majority that “Larry knew of Dr. Johnson’s relationship to her injury from the start and in fact, sued him individually.” But the majority continues, “it was not the relationship between Dr. Johnson and [Larry’s] injury that Larry was unaware of befoi-e the statute of limitations ran on her claim. Rather, it was Dr. Johnson’s employment status with Hospital M.D.”

¶24. The majority too narrowly restricts the meaning of Stringer’s “relationship between the practitioner and the injury” prong. Larry did not know of Hospital MD’s relationship to her injury until she, with reasonable diligence, learned of Hospital MD’s relationship to Dr. Johnson. Hospital MD, as employer of Dr. Johnson, potentially shared a collective relationship with Dr. Johnson to Larry’s injuries under the doctrine of re-spondeat superior. According to this Court, “an action against an employer based on the doctrine of respondeat superior is a derivative claim arising solely out of the negligent conduct of its employee within the scope of his or her employment.” J & J Timber Co. v. Broome, 932 So.2d 1, 6 (Miss.2006). Additionally, “a suit barred by a statute of limitation against an agent will likewise bar the same claim against the principal whose liability is based solely on the principal and agent relationship.” Lowery v. Statewide Healthcare Serv., Inc., 585 So.2d 778, 779 (Miss.1991).

¶ 25. This Court further has held that “[a]bsent proof of an employment relationship,” the employer, a provider of emergency room physicians, could not be held vicariously liable under the doctrine of re-spondeat superior for alleged medical malpractice of the employee-physician; thus the trial court did not err by granting a directed verdict to the employer. Hartel v. Pruett, 998 So.2d 979, 990 (Miss.2008). Even though, in that ease, insufficient proof was adduced as to the relationship between the employer and the employee-physician, here it is uncontested that Hospital MD employed Dr. Johnson. Hospital MD has not denied employing Dr. Johnson. Because of Hospital MD’s 'potential vicarious liability as employer of Dr. Johnson under the doctrine of respondeat superior, the plaintiffs knowledge of “the relationship between the practitioner and the injury” necessarily includes the relationship of the practitioner’s employer and the injury alleged to have been caused by the practitioner. As such, I agree with Larry that the medical malpractice discovery rule tolled the statute of limitations as to Hospital MD until such time as Larry learned of Dr. Johnson’s employment status with Hospital MD.

¶ 26. The majority finds no evidence in the record “showing Larry did anything more than request her medical records in investigating her claim,” or that “Larry made any inquiry into the employment status of Dr. Johnson.” According to the majority, Larry seemed “simply [to] proceed under the assumption that Dr. Johnson was an employee of KDH.” It is true, as the majority recognizes, that a Plaintiff has “a legal duty to conduct a due-diligence inquiry into the true employment status of potential defendants.” Gorton v. Rance, 52 So.3d 351, 357 (Miss.2011) (citing Ray v. Keith, 859 So.2d 995, 999 (Miss. 2003)). But, in Ray, an accident report clearly revealed the defendant’s employer, and the Court found that “there is no evidence in the record that suggests [plaintiff] made any attempt to determine the employment status of [defendant].” Ray, 859 So.2d at 999 (emphasis added).

¶ 27. Here, the record reflects that the only information regarding Dr. Johnson’s employment with Hospital MD came to Larry in the form of an e-mail from a senior claims consultant for King’s Daughters Hospital’s (KDH) insurer. This email, received on December 9, 2011, provided Larry knowledge that Dr. Johnson was employed by Hospital MD. Larry argues that December 9, 2011, was the date she learned of the relationship of Hospital MD and Dr. Johnson. It is true that a “cc” line of an October 12, 2011, letter from an insurance adjuster named Hospital MD as an additional insured on Dr. Johnson’s insurance policy. But Larry argued in the trial court that the October 12, 2011, communication did not put her on notice of Dr. Johnson’s employment with Hospital MD. She wrote, “this could have been an additional insurer” and “the Mississippi Secretary of State’s Office has no listing for Hospital MD, LLC.” Indeed, even if the statute was tolled only until October 12, 2011, Larry’s suit, filed initially on January 3, 2012, was well within the two-year statute of limitations.

¶ 28. Absent the sudden onset of some irresistible impulse of charity, neither Dr. Johnson nor KDH, who were themselves being sued by Larry at the time, would have been likely to reveal voluntarily Hospital MD as Dr. Johnson’s employer. Further, the record reflects that Hospital MD was not even licensed to do business in the State of Mississippi, and that the listings with the Office of the Secretary of State termed Hospital MD “dissolved.” Thus, even with the exercise of reasonable diligence, Larry’s task of identifying Dr. Johnson’s employer amid an uncountable multitude of healthcare providers in this State, potential employers of Dr. Johnson, remained a practical impossibility. Reasonable diligence certainly could not have connected an out-of-state entity, dissolved in Mississippi, with a physician who, from all outward appearances, worked for the Mississippi hospital at which the plaintiff encountered him. Under the circumstances, therefore, it was reasonable for Larry to pursue her suit under the logical assumption that the hospital where she received treatment from Dr. Johnson was the hospital that employed Dr. Johnson. I deem it patently unfair for this Court to charge Larry with knowledge of information she could not possibly have obtained in the absence of a fortuitous stroke of good luck, and I disagree that the trial judge erred in denying summary judgment to Hospital MD.

¶ 29. No amount of reasonable diligence on the part of Larry would have been likely to reveal the employment relationship between Dr. Johnson and Hospital MD, and thus Hospital MD’s relationship to Larry’s injury. The statute of limitations applicable to her claim against Hospital MD did not begin to run until she learned of its identity and its relationship to Dr. Johnson. I would affirm the trial court’s denial of summary judgment to Hospital MD.

CHANDLER AND KING, JJ., JOIN THIS OPINION.

      . The University of Southern Mississippi was later dismissed from the case with prejudice.

      . Dr. Trapp was a radiologist who read the plaintiff's abdominal scan (allegedly in a negligent manner) but never actually saw the plaintiff. Stringer, 30 So.3d at 340. Thus, the plaintiff did not know about Dr. Trapp's relationship to her injury prior to obtaining her records. Id.


author: FAIR, J.,

text:
    Machon LYONS, Appellant v. DIRECT GENERAL INSURANCE COMPANY OF MISSISSIPPI, Appellee.
    No. 2011-CA-00896-COA.
    Court of Appeals of Mississippi.
    Dec. 11, 2012.
    Rehearing Denied June 4, 2013.

      Lance L. Stevens, attorney for appellant.
    Justin Strauss Cluck, Kent E. Smith, Holly Springs, attorneys for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   FAIR, J.,

for the Court:

¶ 1. Machón Lyons sought a declaratory judgment against Direct General Insurance Company, asserting that an insured and his insurance carrier could not contractually exclude a family member from liability coverage under Mississippi’s mandatory liability insurance statutes. The Monroe County Circuit Court granted summary judgment in favor of Direct. Lyons now appeals. Finding that Mississippi Code Annotated section 63-15-4S(2)(b) requires policy coverage for all permissive drivers, we reverse the judgment of the trial court.

FACTS

112. Lyons was in the passenger seat of Roderick Holliday’s car when it left the road and ran into a tree. Lyons was severely injured in the single-car accident and won a judgment against Holliday for $72,500. Direct was notified of Lyons’s suit prior to its filing.

¶ 3. Holliday was operating a Chevrolet Lumina, which his mother, Daisy Lang, had insured through Direct. Direct denied coverage because the policy specifically excluded Holliday from coverage. It is undisputed that Holliday lived with his mother and operated the Lumina with her permission.

¶ 4. Lyons then sued Direct seeking a declaration that the judgment against Hol-liday, which Direct had declined to defend, was covered under Lang’s policy. After a hearing, the circuit court granted Direct’s motion for summary judgment finding that the policy exclusion was clear, unambiguous, and enforceable.

¶ 5. Lyons now appeals asserting that circuit court erred in enforcing an exclusionary clause that circumvents Mississippi’s mandatory liability insurance coverage. Specifically, Lyons argues that an insured cannot exclude from coverage a member of her household or anyone else who drives a covered vehicle with the permission of the insured.

STANDARD OF REVIEW

¶ 6. We review a grant of summary judgment de novo. Tallahatchie Gen. Hosp. v. Howe, 49 So.3d 86, 91 (¶ 14) (Miss.2010) (citation omitted). Summary judgment should only be granted where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). The interpretation of an insurance policy is a question of law, not fact. Noxubee Cnty. Sch. Dist. v. United Nat’l Ins. Co., 883 So.2d 1159,1165 (¶ 13) (Miss.2004).

DISCUSSION

1. Named-Driver Exclusions

¶7. Under section 63-15-4(2)(a) of the Mississippi Code Annotated (Supp.2012), liability insurance is mandatory for vehicles operated in Mississippi. The requirements for these mandatory liability insurance policies are set out in section 68-15-43 of the Mississippi Code Annotated (Supp.2012). However, our statute is silent regarding named-driver exclusions.

¶ 8. Named-driver exclusions allow the insured to specifically exclude a designated person from liability coverage. This exclusion allows insureds to lower premiums by removing from their insurance teenagers or spouses who may have poor driving records. Ideally, after executing such an exclusion, the insured would not allow the designated person to operate the insured vehicle.

¶ 9. Some states’ statutes specifically approve named-driver exclusions. But in those states without such clear guidance, three trends have emerged. California and Texas have upheld named-driver exclusions reasoning that their respective statutes were not designed to protect insureds from claims that arise from the negligent use of their vehicles by excluded drivers. Utah and West Virginia have upheld such exclusions, but only for amounts above the statutory minimum coverage. Thus, if one is injured by an excluded driver, he is still entitled to the statutory minimum coverage. Finally, New Hampshire has invalidated the named-driver exclusion altogether reasoning that the paramount purpose of the statute was to provide compensation to persons harmed by negligent motor-vehicle operation.

2. The Omnibus Clause

¶ 10. A motor vehicle liability policy for a Mississippi resident:

[sjhall pay on behalf of the insured named therein and any other person, as insured, using any such motor vehicle ... with the express or implied permission of such named insured, all sums which the insured shall become legally obligated to pay as damages arising out of the ... use of such motor vehicle ... subject to limits exclusive of interests and costs .... [t]wenty-five [tjhousand [djollars ($25,000.00) because of bodily injury to or death of one (1) person in any one (1) accident....

Miss.Code Ann. § 63-15-43(2)(b).

¶ 11. Under a plain reading of the statute, it would appear that an insurer must pay damages if anyone operating a covered vehicle with the insured’s permission is found liable. The Mississippi Supreme Court has stated: “Whatever the Legislature says in the text of the statute is considered the best evidence of the legislative intent.... It is the task of the Legislature and not this Court to make the laws of this state.” Miss. Dep’t of Transp. v. Allred, 928 So.2d 152,155 (¶¶ 14,17) (Miss. 2006).

¶ 12. Direct argues that its named-driver exclusion is clear and unambiguous and must be enforced under settled principles of contract law. - But “[i]t is well settled in Mississippi that in the event of a conflict between the language of an automobile liability insurance policy and the statutory requirement, the statutory provisions are incorporated into and become a part of the policy.” State Farm Mut. Auto. Ins. Co. v. Universal Underwriters Ins. Co., 601 F.Supp. 286, 289 (S.D.Miss.1984) (citing Vaughn v. State Farm Mut. Auto. Ins. Co., 359 So.2d 339, 341 (Miss.1978), overruled on other grounds by State Farm Mut. Auto. Ins. Co. v. Mettetal, 534 So.2d 189 (Miss.1988)). Therefore, the endorsement excluding coverage for Holliday is in conflict with the statutory provisions of section 63-15-43(2)(b) and is invalid.

¶ 13. In ease law decided before our mandatory liability coverage, the omnibus clause was found to extend liability coverage to permittees and even second permit-tees through implied consent. See State Farm Mut. Auto. Ins. v. Moore, 289 So.2d 909, 912 (Miss.1974), overruled on other grounds by State Farm Mut. Auto. Ins. Co. v. Mettetal, 534 So.2d 189 (Miss.1988). In Moore, a son had unfettered control over the automobile his parents insured, and an accident occurred while the son’s friend was driving the vehicle. Id. at 912. The supreme court found that the friend had the son’s express consent and the parent’s implied consent to operate the automobile and therefore was insured under the omnibus clause. Id.

¶ 14. We believe the Legislature intended to provide a minimum level of financial security to third parties who might suffer bodily injury or property damage from negligent drivers. That is the mandatory coverage requirements of a minimum of $25,000 for bodily injury to one person, $50,000 for bodily injury to two or more persons, and $25,000 for property damage. But above our statutory minimum coverage, an insurer and insured may agree to a named-driver exclusion.

3. The Hasselle Decision

¶ 15. Direct urges this Court to follow the ruling in Alfa Ins. Corp. v. Hasselle, 74 So.3d 371, 375-76 (¶¶ 14-16) (Miss.Ct.App. 2011), where we upheld an exclusionary provision for family members and named insureds regarding liability coverage. In this case, however, the context is completely different.

¶ 16. In Hasselle, a husband struck and injured his wife with their vehicle. Id. at 372 (¶ 1). They were both named insureds under their policy, which excluded liability coverage for any injury to a covered person. Id. at 372-73 (¶¶ 1-3). We explained that an insurance company should have the right, by contract, “to avoid coverage for those in the family circle, who, on account of their close intimacy, may be expected to be riding at frequent intervals in the insured car.” Id. at 375-76 (¶ 14). In essence, family members cannot injure each other and then recover from their insurance company.

¶ 17. Here, Holliday was permitted to operate his mother’s car and caused injury to a third party. This is not a family-member-exclusion issue. In fact, this is exactly the situation our statute addresses, injury to a third party by a negligent driver.

CONCLUSION

¶ 18. We conclude that named-driver exclusions cannot defeat mandatory liability coverage for persons operating a covered vehicle with the permission of the insured, at least up to the statutorily required minimum coverage. The grant of summary judgment by the Monroe County Circuit Court is reversed, and we remand this case for further proceedings consistent with this opinion.

¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

LEE, C.J., IRVING AND GRIFFIS, P.JJ, BARNES, ISHEE, ROBERTS, MAXWELL AND RUSSELL, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . “Every motor vehicle operated in this state shall have an insurance card maintained in the vehicle as proof of liability insurance....” Miss.Code Ann. § 65-15-4(2)(a).

      . In this case, there is a contractual penalty for allowing an excluded driver to operate the insured vehicle: "In the event the Company is obligated to pay for any accident ... while a covered auto or insured vehicle is in the possession or control of or is being used or operated by any of the above excluded person[s], the Named Insured agrees to reimburse the Company for any and all claim payments and expenses of any kind.”

      . See Beacon Ins. Co. v. State Farm Mut. Ins. Co., 795 S.W.2d 62, 64 (Ky.1990); League Gen. Ins. Co., v. Budget Rent-A-Car, 432 N.W.2d 751, 753 (Mich.Ct.App.I988), overruled on other grounds by Titan Ins. Co. v. Hyten, 491 Mich. 547, 817 N.W.2d 562, 569-70 (Mich.2012).

      . See Associated Indem. Corp. v. King, 33 Cal. App.3d 470, 474, 109 Cal.Rptr. 190 (Cal.Ct. App.I973); Wright v. Rodney D. Young Ins. Agency, 905 S.W.2d 293, 295-96 (Tex.Ct.App. 1995).

      . See Allstate Ins. Co. v. Fid. & Guar. Co., 619 P.2d 329, 333 (Utah 1980); Jones v. Motorists Mut. Ins. Co., 177 W.Va. 763, 356 S.E.2d 634, 637 (1987).

      . See Peerless Ins. Co. v. Vigue, 115 N.H. 492, 345 A.2d 399, 400-01 (1975).


author: CARLTON, J., IRVING, P.J.,

text:
    Lonnie SMITH, Appellant v. TIPPAH ELECTRIC POWER ASSOCIATION and Electric Power Associations of Mississippi Workers’ Compensation Group, Inc., Appellees
    No. 2012-WC-00502-COA.
    Court of Appeals of Mississippi.
    May 28, 2013.
    Rehearing Denied Sept. 10, 2013.

      Robert Q. Whitwell, Ashland, attorney for appellant.
    Amy K. Taylor, attorney for appellees.
   CARLTON, J.,

for the Court:

¶ 1. On June 1, 2010, Lonnie Smith filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission) alleging that he had suffered a compensable injury while working as a lineman for Tippah Electric Power Association (Tippah). Tippah denied the com-pensability of Smith’s injury by raising the affirmative defense that the injury resulted from Smith’s own intentional misconduct. Following a hearing where Smith and several other people that he worked with on the day of the accident provided testimony and evidence, the administrative judge (AJ) found that Smith had intentionally injured himself and suffered no com-pensable injury. Smith appealed the AJ’s decision to the Commission, which affirmed the AJ’s denial of benefits. Smith appeals to this Court, arguing that the AJ’s findings are not based on substantial evidence.

¶ 2. Since we find substantial evidence to support the Commission’s decision, we affirm in accordance with our applicable standard of review.

FACTS

¶ 3. On April 29, 2010, while working as a lineman for Tippah, Smith received extensive electric shock, which resulted in severe injury.

¶ 4. In his order, the AJ provided a summary of the relevant evidence from which he concluded that Smith suffered a noncompensable injury. The record reflects the AJ provided an accurate statement of the facts and evidence, stating the following:

Lonnie Smith
The claimant testified both live and by deposition. Mr. Smith is 47 years old and lives in Ripley, Mississippi. He is married with two children. He did graduate from high school and went to Northeast Mississippi Community College for two years on a football scholarship. He did not get a degree. Prior to going to work for this employer[,] he had worked in factories. He had worked for this employer for some 15 to 16 years as of April 29, 2010. He was hired as a lineman and has worked in clearing. In 1994[,] he began working for them and learned his job through on[-]the[-]job training. He also attended a week of training in Alabama. He felt he had a good performance record at work. Also, he said that he had psychological testing and never suffered from depression prior to the incident on April 29, 2010.
With regard to the incident, he said they were working on changing an underground service for a trailer. He was working in the bucket. He took a shotgun stick with him in the bucket to disconnect the hot line clamp. He did this and hung the shotgun stick on the neutral wire. He stated that he also put in an I nut and hung a dolly on the pole, on the backside of the neutral wire. He said he had finished with what he could do and was waiting for them to finish on the ground when he dropped something in the bucket and bent over to pick it up. He said that while he was waiting, the bucket was about level with the neutral wire and he was about even with the hot wire.
When he took the clamp loose he said that only Todd Braddock, Freddy Crawford, Ronald Stroupe and Willie Prather were on[-]site. According to the claimant, Danny Capíes drove up while he was waiting for them to finish on the ground. According to the claimant, Ca-píes did not say anything to him when he drove up. The claimant denied that he was told to come down while he was waiting in the bucket. He also denied that he moved the bucket while he was waiting. These two key statements were contradicted by more than one witness. The claimant also stated that he was not aware as to why Capíes was there but found out later that he was there to take the claimant for a drug screen. The claimant said that he was not depressed or unhappy that day. However, as will be seen in later testimony, there were those that described the claimant as not being his usual self that day.
The claimant specifically denied intentionally grabbing the wire to electrocute himself. He also specifically denied grabbing the hot wire with one hand and the neutral wire with the other.
On cross-examination[,] he was questioned about his training [which] included on[-]the[-]job training, one week in Scottsboro, AL[,] and another class at Tippah Electric which he referred to as an advanced lineman class. He also said that they had safety classes every month or two. He considered himself to be an experienced lineman and knew what would result if one were to touch a hot phase and a neutral phase at the same time. He also stated that he knew that if you were going to get within two feet, one inch of a primary wire[,] you were supposed to wear rubber gloves as opposed to the leather gloves he was wearing.
The claimant’s version of what happened is somewhat confusing and inconsistent with the testimony of others at the scene. According to the claimant, he did not move the bucket after tightening the guide wire. He said that he dropped something in the bucket and when he came back up[,] he came in contact with the hot phase. Essentially, he only admits to coming in contact with the hot phase and not the neutral. He had no explanation how accidentally bumping the hot phase with one hand would cause such severe injuries. He admitted that there would have to be a ground for a complete circuit and asserts he does not know what the ground was in this instance.
Sam Buchanan
Buchanan was employed at [Tippah] in April of 2010. He had been there some 32 years. He has known [Smith] since the claimant began working for [Tippah] and considered him a good employee. On the day in question he was requested to have a drug screen performed on [Smith]. To his knowledge, the claimant did not know about the proposed drug screen. Buchanan instructed [Capíes] to go have the drug screen performed on the claimant.
Buchanan was not on the scene at the time of the incident. He did perform an investigation afterward. He talked with the other employees at the scene. None of them told him they actually saw it occur. He did not report to the board that he thought [Smith] had done it on purpose. He did not give an opinion then or at the hearing as to whether he thought it was an accident or not.
He did not remember giving Smith’s wallet and knife back to his wife after the incident.
Buchanan was terminated by [Tippah] some two weeks after this incident. He did not testify that his termination had anything to do with the [Smith] incident. He attributed it to his age and personal animosity.
Ronald Stroupe
Stroupe has worked at [Tippah] for some 13 years. He knows the claimant. He has worked with him on the same crew. He considered Smith to be a good worker and a good employee. He was at the scene in April of 2010. Other employees there were [Prather, Capíes, Crawford, Smith, and Braddock], The homeowners were also there and others doing unrelated work.
He stepped off of the truck and was walking back when he heard the noise of the arc and had to walk out a little to see Smithy but he then had a good view from about 35 to 40 feet away. When he looked up he saw Smith with his arm and head on the primary wire and his other arm hanging down beside him outside the bucket. He also remembered seeing smoke. He did not actually see it happen and had to walk out a little from where he was to view the claimant in the bucket. He did help with the bucket rescue of Smith. He also said that the claimant received a phone call about 15 minutes before the incident.
He did not notice the claimant acting irrational that day or like he had been on drugs or anything like that. However, he did notice that the claimant had not been joking around like usual.
Todd Braddock
Braddock has been a lineman for 17 years with [Tippah.] He was hired the same day as Smith. In addition to on[-]the[-]job training, he and Smith went to apprentice lineman training in Alabama for a week. They also had safety training at least six times a year. They also brought someone in to give them some advanced lineman training.
He was also present on the day of the incident. A customer had brought a new trailer and they were in the process of providing underground service to the trailer. He had been working inside the trailer when he received a call from his union steward that [Capíes] would be coming to the site to pick up Smith. He then realized that he would have to go replace Smith in the bucket so he went outside when he saw Capíes arrive. He walked up and observed Capíes tell Smith that he needed Smith to go with him. Smith said [“0]kay[.”][“L]et me [take the] clamp off the transformer.[”] The bucket was right around the transformer when this occurred. The lip of the bucket was underneath the neutral wire. One uses an 8 foot stick to take the clamp off. He said it would be difficult to do it if the bucket was up between the neutral and primary lines. The controls on the stick are at the bottom of the stick. He did observe the claimant hook into the clamp to break it free but at some pointy Braddock turned and started back to his truck. On the way back to the truck he heard an arc[,] which he recognized from the distinctive sound. He then turned around and looked up. Upon turning around[,] he observed the claimant’s right hand on the neutral with it pulled up and his left hand on the primary with smoke coming from his left hand. He described the wires as being generally 4 [feet] apart. He called 911 since he knew this would be very traumatic. He said that according to his training, very few people have lived with primary and neutral contact.
Upon further questioning of what he observed, he stated that he saw the palms of both hands on the wires. He next saw him slumped over the wire similar to the description given by Stroupe once he had walked out from the trailer and looked up. Braddock was then on the phone making the 911 call and the next time he looked up[,] the claimant had fallen into the bucket. Braddock also helped with the bucket rescue.
He did not notice Smith acting unusual that day, but did make reference to tension on the crew during the last two weeks. He also testified that the bucket had been moved by Smith between the time he turned to head back to his truck and when he heard the arc. He did not know why Smith would have moved the bucket after unhooking the clamp.
Freddy Crawford
Crawford was the line foreman on the crew on which Smith was working on the day of the incident. He had been a line foreman for [Tippah] for 10 years or longer and had worked for them for thirty-nine years. He was not working at the time of the hearing. He was on the site on the day of the incident where they were pulling an underground service to a new trailer. He remembers Capíes coming to the site asking for Smith to come down. Smith was taking a clamp off at the time. He observed him take the clamp off, but did not look back up after that until he heard the arc. Smith used the shotgun stick to unhook the transformer. He thought the claimant would then be coming down since Capíes had asked him to come down. He next heard the bucket moving because of the sound of the motor.
When he heard the are[,] he looked back up. The bucket was not in the same position as when the claimant unhooked the transformer. It was higher. He said it was above the transformer at that time. He was not aware of any work to be done above the transformer that day after the transformer was unhooked. With regard to the pulley, he said it was already there before the claimant unhooked the transformer. When he looked up he saw one of the claimant’s hands on the primary wire and one on the neutral wire. He could not recall which hand was on which wire. When the claimant fell down in the bucket[,] he went and lowered him down.
With regard to the way Smith was acting that day[,] he said he was quieter than normal. He described him as not normally being a quiet person.
He was asked if he saw a loose bolt on a guide wire whether he would go up and try to tighten it up. He said he probably would not. He said some other lineman might do it. He said he would not do it because it was above the safety zone, only about 6 inches below the primary wire.
He described Smith as being a good worker with whom he never really had any trouble, he also considered him to be a good lineman. He did not know why Capíes had come out there that day to get Smith. He said it was unusual for Capíes to come out to a job site to get one of the crew members.
Danny Capíes
Capíes is an engineer with [Tippah]. He has worked there for 7 years. He was present at the site at the time of the incident. He had been sent out there to pick up Smith to take him for a drug test. He also said it was an uncommon occurrence for him to be sent out to a job site to pick up an employee. Upon arriving!,] he walked up to the foreman, Crawford, and told him that he needed Smith to go with him. Smith was then told to come down. He did not recall hearing Smith respond.
He looked up at Smith and observed him using the stick to disconnect the clamp. He recalled seeing Smith hang the stick on the neutral line when he finished unhooking the clamp. He recalled the bucket being located just underneath the transformer when this was occurring. When the claimant began to move the bucket he moved a couple of steps away, waiting for him to come down. He did not see the bucket moving but heard the motor rev up. He was looking away when he heard a buzzing sound and then looked back up at the bucket. He saw Smith in contact with the primary and neutral lines. The only time that had passed was just long enough for him to take a couple of steps. When he looked up, the bucket was not in the same place as before!;] it had been moved up and to the left, further away from the pole.
In describing what he saw, he said that Smith was gripping the lines with his hands. He believes the left hand was on the primary and the right hand was on the neutral. He said that the claimant fell down in the bucket!,] and they began to get the bucket down. He did recall seeing the claimant’s leather gloves when he came down. He said that they were both burned in the palm area. Ca-píes did not have the gloves. He said they were not removed at the site. He said they would have been removed at the hospital as far as he was aware.
He said that Smith did not know why he was out there to get him. He said the company was suspicious that Smith had been using drugs and that is why they wanted him drug tested. He has never seen the result of the drug test but would not disagree if told the test was negative. He has never been told by the company that Smith was using drugs out there that day. It is noted that in claimant’s exhibit 1, the drug screen was negative except for the opiates given him at the hospital.
He did recall giving the claimant’s wife his knife and wallet. He did not know where they came from or if they were found in the bottom of the bucket.
Michael Glen Weltzheimer
Weltzheimer is assistant to the vice president of safety and loss control for the Electric Power Association of Mississippi. He has been with them for 19 months. Prior to that he was a manager of safety and loss control for an electric co-op out in Texas for five years. He investigated this incident in response to a call from his boss, Stan Rutger. He was in Laurel when he received the call, went back to Canton to get some clothes and went straight up to Ripley, arriving around 9 that night. He first went to the scene around 11:00 the next day. He testified that the pictures ([p]ut into evidence as E/C 3) were taken by him. He explained why there were no pictures identified as pictures 1, 2, and 11. He said that the pictures accurately represent what he saw at the scene and explained what was in the pictures. He said that the only difference between what was in the pictures and the time of the incident is that the jumper had been put back to the transformer so that the power was restored.
He 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 8 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.
He said that he did take statements from the witnesses. He met with them as a group first but only to see how they were doing. When he interviewed them about what happened, he met with each of them separately. He then got them to write out their statements and sign them. He said that in speaking with them and- taking their statements, none of them actually saw the incident as it occurred.

STANDARD OF REVIEW

¶ 5. “This Court’s scope of review in workers’ compensation cases is limited to a determination of whether the decision of the Commission is supported by substantial evidence.” Whirlpool Corp. v. Wilson, 952 So.2d 267, 271 (¶ 15) (Miss.Ct. App.2006). We recognize that the “Commission sits as the ultimate finder of fact; its findings are subject to normal[ ] deferential standards upon review.” Id. Reversal is only proper “where findings of fact are unsupported by substantial evidence, matters of law are clearly erroneous, or the decision was arbitrary and capricious.” Id.

¶ 6. Additionally, we note that Tippah raised an affirmative defense asserting that Smith had suffered an injury as a result of his own intentional misconduct. This Court has stated that “[i]t is fundamental that the burden of proof of affirmative defenses rests squarely on the shoulders of the one who expects to avoid liability by that defense.” A.F. Leis Co. v. Harrell, 743 So.2d 1059, 1061 (¶9) (Miss. Ct.App.1999). Tippah, the employer, was required to prove by a preponderance of the evidence Smith’s own intentional misconduct. Id.

DISCUSSION

¶ 7. Smith argues that the AJ’s decision to deny workers’ compensation benefits was not based on substantial evidence. We disagree.

¶ 8. A compensable injury under the Mississippi Workers’ Compensation Act is defined as an

accidental injury or accidental death arising out of and in the course of employment without regard to fault which results from an untoward event or events, if contributed to or aggravated or accelerated by the employment in a significant manner.

Miss.Code Ann. § 71-3-3(b) (Rev.2011) (emphasis added). The Mississippi Workers’ Compensation Act specifically excludes liability, however, for injuries due to the “willful intention of the employee to injure or kill himself.” Miss.Code Ann. § 71-3-7(4) (Supp.2012). See L.B. Priester & Son v. McGee, 234 Miss. 471, 479, 106 So.2d 394, 397 (1958) (“Where there is a wilful intention of the employee to injure himself, compensation is not payable under the Workers’] Compensation Law.”).

¶ 9. The record contains the opinion of the AJ identifying the following substantial evidence to support the Commission’s decision that Smith acted in such a way as to intentionally injure himself. The AJ found as follows:

In evaluating the evidence it is hard to find the claimant’s testimony to have much credibility. First of all[,] he seems to have no clear recollection of exactly what happens upon supposedly dropping something in the bucket and raising back up. According to the claimant he only recalls coming in contact with the primary and not the neutral. No less than three witnesses saw the claimant’s hands in contact with both the primary and neutral lines. One witness, [Stroupe,] testified that he had to walk away from the truck and when he looked up[,] he saw the claimant with his arm and head on the primary with the other arm hanging down. It seems clear that he simply did not see the claimant as quickly as the other witnesses. This is consistent with the second position that the claimant was observed to be in by [Braddock], who said he first observed the claimant with the primary in one hand and the neutral in the other and then saw him slump down on the primary, similar to the description given by Stroupe. [Crawford] and [Capíes] also saw the claimant with one hand on the primary and one hand on the neutral lines. Capíes recalled observing the claimant’s leather gloves after the incident and that there were burn marks on the palms of both gloves. The testimony of the witnesses at the scene all seems consistent with each other and inconsistent with the testimony of the claimant.
There are also other inconsistencies between the claimant’s testimony and that of the witnesses. The claimant said he had already disconnected the clamp before Capíes arrived at the scene and had already moved the bucket to a higher level. However, Capíes, Braddock, and Crawford all testified that the clamp was removed after Capíes arrived and the bucket had been moved between the unhooking of the clamp and the ... incident. Crawford said that it was higher. Capíes said that it was higher and further away from the pole.
Smith even denies that he was ever told to come down upon the arrival of Capíes. Braddock, Crawford, and Capíes all testified that the claimant was told to come down.
The one thing that is clear from the testimony of the claimant is that he was an experienced lineman and was fully aware of the potential consequences of coming in contact with the primary and neutral lines at the same time. He also acknowledged that he knew that if he was going to get within two feet one inch of the primary wire he was supposed to wear rubber gloves, which he was not wearing.
The Administrative Judge also takes note of the almost 4 feet in distance between the primary line and the neutral line.
Based on the above inconsistencies between the testimony of the claimant and other witnesses at the scene, the Administrative Judge finds that the claimant’s testimony as to the incident itself and the events leading up to the incident is not credible. Based on the testimony of the other witnesses at the scene[,] the Administrative Judge finds that the claimant had one hand on the primary line and one on the neutral line at the time of the incident. Given the almost 4 feet between the lines[,] it is found that he intentionally placed his hands on the lines being fully aware of the potential harmful consequences of such an act.

¶ 10. This Court recognizes the limited standard of review that appellate courts must utilize when considering the Commission’s findings. We acknowledge that this Court is not the trier of fact, and, absent any error of law, we only reverse where the decision of the Commission lacks the requisite evidentiary support of substantial evidence. See Whirlpool, 952 So.2d at 271 (¶ 15). In the case at bar, the record demonstrates that substantial evidence exists to support the decision of the AJ, and also of the Commission, that Tippah and its carrier, Electric Power Associations of Mississippi Workers’ Compensation Group Inc., proved that Smith intentionally injured himself. Therefore, we find no abuse of discretion in the Commission’s decision, which affirmed the AJ’s denial of workers’ compensation benefits to Smith.

¶11. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. GRIFFIS, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES AND JAMES, JJ.

IRVING, P.J.,

dissenting:

¶ 12. This Court has the authority to reverse the Commission’s decision if the decision is not supported by substantial evidence. Unfortunately for Smith, however, the majority agrees with the AJ’s decision that Smith acted intentionally to injure himself. Because I believe that the AJ’s decision is based on assumptions rather than substantial evidence, I dissent. I would reverse the Commission’s judgment and remand this case to the Commission for a determination of benefits.

¶ 13. The burden rested with Tippah to prove that Smith’s injuries were the result of intentional conduct. I submit that Tip-pah failed to meet its burden. Even with all of the testimony received by the AJ and summarized by the majority, the fact remains that there were no eyewitnesses to this incident. The testimony from Tip-pah’s witnesses offered only snapshots of the aftermath of the incident, and some of that testimony corroborated Smith’s version of events. For example, Smith testified that he had dropped his knife in the bucket that he was standing in while working on the power lines. Capíes subsequently testified that, although he did not know where the knife had been recovered, he had returned Smith’s knife to Smith’s wife after the incident. This lends credence to Smith’s contention that he had, indeed, dropped the knife prior to the incident.

¶ 14. The inconsistencies that the AJ identified as the basis for denying benefits to Smith do not make an accidental touching of the power lines improbable. Smith may not remember how it happened, but, more importantly, no other witness can say how it happened either. Each of Tip-pah’s witnesses admitted that he did not see the incident as it occurred. And while Smith was an experienced lineman with training regarding the consequences of simultaneously touching the primary and neutral wires, this fact fails to suggest that this incident was intentional and not accidental.

¶ 15. It is clear to me that, prior to denying benefits to Smith, the AJ made several assumptions that are completely unsupported by the testimony — those assumptions being that Smith knew the reason for Caples’s presence at the worksite on the day of the incident; that Caples’s presence at the worksite suggested trouble to Smith; that Smith’s quiet demeanor signified a depressed or unhappy mental state; and that if Smith was depressed or unhappy, he was also suicidal. It cannot be reasonably argued that these assumptions are supported by any of the testimony given at the hearing, and, in my opinion, the testimony given at the hearing was insufficient to prove that Smith acted to intentionally injure himself.

¶ 16. For the reasons presented, I dissent.

BARNES AND JAMES, JJ., JOIN THIS OPINION.

      . See Whirlpool Corp. v. Wilson, 952 So.2d 267, 271 (¶ 15) (Miss.Ct.App.2006); see also Miss.Code Ann. § 71-3-7(4) (Supp.2012); see generally Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 76:142 (2002) (discussing affirmative defenses and requisite proof).

      . See also Marshall Durbin Co. v. Warren, 633 So.2d 1006, 1009 (Miss. 1994); see also Miss. Code Ann. § 71-3-7(4).

      . While this Court is limited to a determination of whether the findings of the Commission are supported by substantial evidence, the Commission in this case did not provide its own findings of fact; rather, it affirmed those of the AJ. As such, we will examine the findings of fact of the AJ. See McDowell v. Smith, 856 So.2d 581, 585 (¶ 10) (Miss.Ct. App.2003).

      . See Petroleum Equip. Co. v. Lancaster, 197 So.2d 485, 487 (Miss. 1967) (explaining that unexpected injuries fall within the category of accidents occurring within the course and scope of employment but that no compensation is payable for injuries resulting from employee’s willful misconduct to kill or injure himself or another); Whirlpool, 952 So.2d at 271 (¶ 15); A.F. Leis, 743 So.2d at 1061 (¶ 9); See also Miss.Code Ann. § 71-3-7(4).


author: LEE, C.J.,

text:
    Patricia A. HERBERT, Appellant v. CITY OF HORN LAKE, Mississippi and MS Public Entity WC Trust, Appellee.
    No. 2013-WC-00197-COA.
    Court of Appeals of Mississippi.
    Oct. 1, 2013.
    Rehearing Denied May 6, 2014.

      David L. Walker, for attorney appellant.
    Joshua Paul Moore, Oxford, for attorney appellee.
    Before LEE, C.J., ROBERTS and CARLTON, JJ.
   LEE, C.J.,

for the Court:

FACTS AND PROCEDURAL HISTORY

¶ 1. On December 11, 2006, Patricia A. Herbert injured her back while pulling a fire hose during training as a firefighter in Horn Lake, Mississippi. Herbert filed a petition to controvert with the Mississippi Workers’ Compensation Commission (the Commission) on June 2, 2008. The City of Horn Lake (the City) admitted compensa-bility and began paying Herbert temporary total disability payments. After a hearing, the administrative judge (AJ) determined that Herbert was not due additional temporary disability benefits. The AJ further found Herbert failed to prove she suffered any permanent disability and/or any loss of wage-earning capacity. Herbert appealed to the Commission, which affirmed the decision of the AJ.

¶ 2. Herbert now appeals, asserting the Commission’s decision was not supported by substantial evidence.

FACTS

¶ 3. Herbert was initially hired by the City as an EMT but was transferred to the fire department in April 2006. Her job required her to wear heavy equipment and engage in frequent bending and lifting. Herbert injured her back while pulling a heavy fire hose. Herbert was diagnosed with a ruptured disc and eventually referred to Dr. Glenn Crosby, a neurosurgeon. Dr. Crosby first saw Herbert on, and diagnosed her with lumbar disc problems. On July 31, 2007, Dr. Crosby performed a spinal fusion on Herbert.

¶ 4. Herbert returned to Dr. Crosby for several post-operative visits. Since she was still experiencing pain, Herbert underwent a functional capacity exam (FCE) on April 28, 2008. Dr. Crosby noted the therapist conducting the FCE was unable to assess restrictions due to Herbert’s self-limiting behavior. Dr. Crosby determined Herbert had reached maximum medical improvement (MMI) as of May 12, 2008, and assessed a 25% impairment rating of her lumbar spine. Dr. Crosby released Herbert to return to work with a thirty-pound weight-lifting restriction.

¶ 5. Following her release by Dr. Crosby, Herbert was instructed to report to work at City Hall on May 27, 2008, where she acted as general receptionist on a full-time basis at the same salary as her firefighter position. Herbert reported to work that day, left at noon, returned to work for one hour, then left again. Herbert stated she was in pain and went to her doctor’s office. According to Herbert, the nurse practitioner told her not to return to work. Herbert never returned to work and was ultimately terminated from her position as receptionist.

¶ 6. Herbert testified she attempted to find employment at several places located by the vocational rehabilitation expert, but was ultimately unsuccessful. Herbert admittedly suffered a back injury as a result of a car accident approximately six months prior to her work-related injury. Herbert had also suffered an on-the-job injury to her back in the mid-1990s, which caused her to miss work for three months.

¶ 7. Due to her continuing pain, Herbert began to see Dr. Crosby again. Between June and November 2010, Herbert underwent several tests, both at the request of Dr. Crosby and another neurosurgeon who had assisted Dr. Crosby with Herbert’s surgery. In a deposition dated March 23, 2011, Dr. Crosby stated he had considered Herbert unable to work due to her complaints of back pain, but the tests conducted indicated Herbert’s spinal fusion was solid. Unable to help Herbert from a surgical standpoint, Dr. Crosby referred Herbert to a pain-management clinic.

STANDARD OF REVIEW

¶ 8. “This Court’s scope of review in workers’ compensation cases is limited to a determination of whether the decision of the Commission is supported by substantial evidence.” Whirlpool Corp. v. Wilson, 952 So.2d 267, 271 (¶ 15) (Miss.Ct. App.2006). “The Commission sits as the ultimate finder of fact; its findings are subject to normal[] deferential standards upon review.” Id. We will only reverse the Commission’s ruling when its “findings of fact are unsupported by substantial evidence ... or the decision was arbitrary and capricious.” Id. “Matters of law are reviewed under the de novo standard of review.” Westmoreland v. Landmark Furniture, Inc., 752 So.2d 444, 448 (¶ 8) (Miss.Ct.App.1999).

DISCUSSION

¶ 9. In her only issue on appeal, Herbert contends the Commission’s decision was not supported by substantial evidence. Specifically, Herbert argues the evidence proved she suffered a loss of wage-earning capacity; thus, she was entitled to permanent partial disability benefits.

¶ 10. “In order to be deemed permanently totally disabled under [Mississippi Code Annotated s]ection 71-3-17(a) (Rev.2000), a claimant must show something more than an inability to return to the job existing at the time of injury.” Adolphe Lafont USA Inc. v. Ayers, 958 So.2d 833, 839 (¶ 18) (Miss.Ct.App.2007) (citing McCray v. Key Constructors, Inc., 803 So.2d 1199, 1203 (¶ 17) (Miss.Ct.App. 2000)). In order to determine that an employee is disabled, there must be “a finding that the claimant could not obtain work in similar or other jobs and that the claimant’s unemployability was due to the injury in question.” Georgia Pacific Corp. v. Taplin, 586 So.2d 823, 828 (Miss.1991) (emphasis added). “To demonstrate total disability, the claimant must show that [s]he has made a diligent effort, but without success, to obtain other gainful employment.” Adolphe, 958 So.2d at 839 (¶ 18). “[0]nce the claimant has made a prima facie case of total disability, the burden shifts to the employer to show that the employee’s efforts were not reasonable or constituted a mere sham.” Id.

¶ 11. Herbert was offered a job by the City within her' lifting restrictions. According to Arianne Linville, the City’s human resources director, Herbert’s total salary was equal to her salary as a firefighter. Herbert reported to her job, but ultimately failed to return. The AJ determined the City did what was required of it. The AJ further noted Herbert did attempt to find employment at several places but was unsuccessful. The Commission agreed with the AJ’s findings, and we find this decision was supported by substantial evidence. This issue is without merit.

¶ 12. THE JUDGMENT OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART.

      . We note that Herbert’s last name is also spelled "Hebert” throughout the record and exhibits.