author: JAMES, J„

text:
    TRI COUNTY CONTRACTORS, INC., Appellant v. BETTER QUALITY BUILDERS, LLC, Appellee.
    No. 2012-CA-00507-COA.
    Court of Appeals of Mississippi.
    April 30, 2013.

      Precious Tyrone Martin, Saundra Maria Thompson, attorneys for appellant.
    Hugh D. Keating, Shannon Adele Lad-ner, Gulfport, attorneys for appellee.
    Before GRIFFIS, P.J., BARNES and JAMES, JJ.
   JAMES, J„

for the Court:

¶ 1. This appeal follows an order from the Circuit Court of Harrison County, affirming the arbitration award of $115,166.57 in favor of Better Quality Builders LLC (Better Quality). Tri County Contractors Inc. (Tri County) challenges the order, alleging the circuit court erred by denying its motion to vacate the award. Finding no error, we affirm the order of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 2. On June 15, 2009, Tri County and Better Quality entered into a construction contract. The agreement provided that Better Quality would perform rehabilitative construction on a project located in Gulfport, Mississippi. The original contract amount was $167,900. Although the contract required that any modification to the agreement be in writing, both parties orally agreed to a $5,000 increase, bringing the contract amount to $172,900. Shortly thereafter, Tri County proposed a second modification, in writing, which added $7,000 for materials and equipment and $11,600 for labor. Though Better Quality never signed a change order to reflect the proposal, it performed approximately seventy-five percent of the labor portion of the proposed modification, which totaled $8,700.

¶ 3. Nearly two weeks after Better Quality began work, Tri County brought in its own personnel to perform construction on a portion of the project. Tri County then ordered Better Quality to perform work that was outside the scope of the contract. After Better Quality refused to perform the work, Tri County ordered Better Quality to cease work and leave the project. The contract, which was drafted by Tri County, contained an alternative-dispute-resolution clause, which required that any dispute between the parties be initially submitted to mediation, and then to arbitration if mediation was unsuccessful.

¶ 4. On November 12, 2009, Better Quality submitted its first request for mediation and demand for arbitration on the grounds that Tri County had breached the contract by unlawfully removing Better Quality from the project and .refusing to pay for the work completed. Mediation was held on January 8, 2010. The parties were unsuccessful in resolving the dispute. Under a provision in parties’ contract, all fees and expenses for arbitration were to be split equally between the parties. In spite of the contractual agreement, Tri County refused to contribute to any portion of the arbitration fees. As a result, arbitration proceedings were suspended until all fees were paid in full. On February 28, 2011, after advancing all costs of arbitration, Better Quality filed a motion to compel arbitration. As of the date of the motion, Better Quality had expended $4,750 in arbitration fees and expenses.

¶ 5. On April 20, 2011, Better Quality filed an application for entry of default due to Tri County’s failure to respond. After default was entered by the circuit court clerk, Tri County filed a letter with the circuit court, denying all claims asserted in Better Quality’s motion to compel arbitration. On May 19, 2011, Better Quality filed a motion for a default judgment. A hearing on the motion was held on August 4, 2011, during which the circuit court issued an order to compel arbitration.

¶ 6. Three separate scheduling hearings were held prior to arbitration. Finally, arbitration was scheduled for January 19, 2012. Five days before the date of arbitration, Tri County retained new counsel and requested a continuance. The arbitrator denied the request, and arbitration proceeded as scheduled. On the day of arbitration, Better Quality moved to exclude any documentary evidence sought to be entered by Tri County on the grounds that Tri County had failed to produce any documents during the discovery period or anytime prior to arbitration.' The arbitrator granted the motion. After hearing testimony from both parties, the arbitrator found that Tri County had breached its contract with Better Quality, and awarded Better Quality a sum of $115,166.57. The award amount included compensation for the work completed by Better Quality under the contract, lost profits suffered by Better Quality as a result of Tri County’s breach, attorney’s fees incurred by Better Quality due to Tri County’s substantial delay throughout the arbitration proceedings, and reimbursement from Tri County for one-half of the costs of arbitration.

¶ 7. On February 14, 2012, Better Quality filed a motion to confirm and enforce the arbitration award. Tri County subsequently filed a motion to vacate the award. A hearing on both motions was held on March 8, 2012. The circuit court affirmed the arbitration award, finding that Tri County failed to establish specific grounds for vacating the award. The judgment of the circuit court was entered in two separate orders. One order denied Tri County’s motion to vacate the arbitration award, and the other order granted Better Quality’s motion to confirm and enforce the award. From these orders, Tri County now appeals.

STANDARD OF REVIEW

¶ 8. “[T]he scope of judicial review of arbitration awards [is] quite narrow ... and every reasonable presumption will be indulged in favor of the validity of the arbitration proceedings.” Craig v. Barber, 524 So.2d 974, 977 (Miss.1988) (internal quotation marks omitted) (quoting Hutto v. Jordan, 204 Miss. 30, 42, 36 So.2d 809, 812 (1948)). We will not disturb the findings of a circuit judge sitting without a jury unless the findings are manifestly wrong or clearly erroneous, or the judge applied an erroneous legal standard. Wilson v. Greyhound Bus Lines, Inc., 830 So.2d 1151, 1155 (¶ 9) (Miss.2002).

DISCUSSION

¶ 9. Section 11-15-133(1) of the Mississippi Code Annotated (Rev.2004). lists the grounds upon which an arbitration award may be vacated. The Mississippi Supreme Court has long held that:

the only bases in our law for refusal to enforce an arbitration award are: (a) [t]he award was procured by corruption, fraud or other undue means; (b) there was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of the parties.

Barber, 524 So.2d at 978 (quoting Miss. Code Ann. § 11-15-133(1) (Supp.1987)).

¶ 10. Tri County argues that it was prejudiced by the arbitrator’s refusal to postpone the arbitration hearing after Tri County obtained new counsel. Rule 29 of the Construction Industry Arbitration Rules and Mediation Procedures, which was incorporated into the parties’ contract, provides that the arbitrator may postpone any hearing for good cause shown upon agreement of the parties. Nothing in the rules requires the arbitrator to grant a continuance simply because a party makes a request. In fact, the record shows that even though the arbitrator had determined that sufficient cause for postponement had not been shown, the arbitrator still offered to grant a continuance if both parties agreed. After Better Quality refused to agree to a postponement, the arbitrator denied the request because Tri County had already caused substantial delay in the proceedings.

¶ 11. The order to compel arbitration was issued by the circuit court on August 4, 2011. Arbitration was held on January 19, 2012, which gave Tri County approximately five months to prepare for the hearing. In addition, three separate scheduling hearings were held prior to arbitration due to Tri County’s failure to cooperate throughout the course of the proceedings. Also, arbitration had previously been delayed due to Tri County’s refusal to pay its half of the costs of arbitration. It appears that obtaining new counsel merely five days before arbitration was scheduled was yet another effort by Tri County to further delay the proceedings. Furthermore, the record reflects that Tri County had a total of four separate attorneys throughout the course of the proceedings.

¶ 12. Tri County also argues that it was prejudiced because it was not allowed to present any documentary evidence during the hearing. Under the arbitration rules incorporated into the contract, the parties were required to submit copies of any exhibits they intended to use at least five days before the hearing. Our review of the record shows that not only did Tri County fail to adhere to the rules by submitting documents for the first time on the day of arbitration, but Tri County had not produced any documents during the discovery period, or at any other time prior to the date of the hearing. Furthermore, Tri County has offered no explanation for its delay in producing the documents, nor has it shown how it was prejudiced by the arbitrator’s exclusion of the evidence. The arbitration rules gave the arbitrator the authority to resolve any disputes concerning the exchange of information between the parties, including the exchange of documentary evidence. Given the circumstances, we find that the arbitrator was well within his authority to exclude the documentary evidence due to Tri County’s failure to present the evidence in a timely manner.

¶ 13. As previously noted, our scope of review of an arbitration award is extremely narrow. We find that Tri County has not established sufficient grounds for vacating the arbitration award under section 11-15-133(1). The circuit court was correct in affirming the arbitration award and in denying Tri County’s motion to vacate. Therefore, we affirm the order of the circuit court.

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

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

      . Incorporated into the contract was the Construction Industry Arbitration Rules and Mediation Procedures. Rule 51 of these rules reads:
      The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the arbitration, including required travel and other expenses of the arbitrator, AAA representatives, and any witness and the cost of any proof produced at the direct request of the arbitrator, shall be borne equally by the parties, unless they agree otherwise or unless the arbitrator in the award assesses such expenses or any part thereof against any specified party or parties.
      (Emphasis added). The record does not reflect any agreement between the parties that is contrary to Rule 51, nor does Tri County allege that any such agreement was made between the parties.

      . The record shows that Tri County had a total of four separate attorneys throughout the course of the proceedings.


source: Caselaw Access Project

author: FAIR, J.,

license: Public Domain

text:
    Xavier D. VAUGHN a/k/a Xavier Vaughn, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-KA-01777-COA.
    Court of Appeals of Mississippi.
    April 30, 2013.

      Joseph A. Fernald Jr., Brookhaven, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before LEE, C.J., FAIR and JAMES, JJ.
   FAIR, J.,

for the Court:

¶ 1. Xavier Vaughn was convicted of manslaughter for the death of Billy Ray Miller. He was sentenced to twenty years’ imprisonment, with fifteen to serve and five years suspended. On appeal, Vaughn raises the following issues: (1) whether the trial court erred by denying his motion for a new trial based upon juror misconduct; and (2) whether the verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS

¶ 2. On March 24, 2007, Vaughn shot and killed Miller. That day, Miller attended a repast, uninvited, with seven or eight friends. Around two hundred other people were present. Miller went in search of Vaughn because, earlier that day, the two had a heated argument at Miller’s home, which had ended with Vaughn allegedly vandalizing Miller’s car. When Miller arrived at the repast, he moved through the large crowd and found Vaughn. The two began another heated argument. As a woman moved between the two men to break up the fight, a gunshot was fired and Miller fell to the ground.

¶ 3. The autopsy revealed that Miller died from a gunshot wound to the head. The bullet entered Miller’s head from behind his right ear, exiting through the left side of his head. Several witnesses testified that when Miller was shot, he was facing away from Vaughn and was pushing the woman who had gotten in between him and Vaughn. There was conflicting testimony on whether Miller was armed at the time of the shooting, but Vaughn’s 9mm handgun was the only weapon found on the premises. After four days of testimony from twenty-nine witnesses, the jury found Vaughn guilty of manslaughter.

DISCUSSION

1. JUROR MISCONDUCT

¶ 4. A juror who has withheld information or misrepresented material facts at voir dire is disqualified from service. Miss.Code Ann. § 13-5-67 (Rev. 2012); Myers v. State, 565 So.2d 554, 558 (Miss.1990). This Court uses the analysis set out in Odom v. State, 355 So.2d 1381, 1383 (Miss.1978), to determine whether to grant a new trial on the basis of a juror’s failure to disclose information during voir dire. Logan v. State, 465 So.2d 339, 340 (Miss.1985). Odom held:

[W]here ... a prospective juror in a criminal ease fails to respond to a relevant, direct, and unambiguous question presented by defense counsel on voir dire, although having knowledge of the information sought to be elicited, the trial court should, upon motion for a new trial, determine whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited. If the trial court’s determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror’s failure to respond. If prejudice reasonably could be inferred, then a new trial should be ordered.

Odom, 355 So.2d at 1383(footnote omitted). Odom further held that the trial court’s judgment on whether the jury could be fair and impartial will not be disturbed unless clearly wrong. Id.

¶ 5. “It is readily evident that no firm, unbending rule can be laid down that would control every situation that might arise on the voir dire of prospective jurors. Therefore, each case must be decided on an ad hoc basis considering the facts then before the court.” Id. Here, Vaughn claims juror 35, Elvreen Martin, did not answer the relevant questions asked during voir dire. Further, Vaughn asserts that Martin had “substantial knowledge of the information sought,” and therefore her failure to disclose that information warrants a new trial. See id. at 1383. During voir dire, the jury panel was asked whether anyone was related by blood or marriage to Vaughn. Martin did not respond to the question. The potential jurors were also asked if they lived “in the areas of Timberlane Road or anywhere near Savannah Lane or close to the Copiah County end of Timberlane Road.” Martin stated that she lived on Timberlane Road and that her house was closer to Sontag than the Copiah County line. Martin was later selected as a juror. At the hearing on Vaughn’s motion for a judgment notwithstanding the verdict, Martin testified she was related to Vaughn by blood through her grandchild. When asked why she did not disclose this information during voir dire, Martin stated that she did not learn of the relationship to Vaughn until after the trial. Martin also testified regarding her residence on Timberlane Road. The transcript reflected the following:

Q. And you remember me asking [during voir dire] do you live closer to Sontag or to Wesson, and you told me that you live closer to Sontag, didn’t you?
A. I think so. I believe I did. I haven’t measured it.

Vaughn claims he should be awarded a new trial because Martin had “substantial knowledge of the information sought to be elicited.” But Martin testified that she did not have any of this information prior to trial or during voir dire. The record before this Court does not contradict her account. We cannot say that the trial court abused its discretion, and we find this argument to be without merit.

2. SUFFICIENCY OF THE EVIDENCE

¶ 6. We review a challenge to the sufficiency of the evidence in the light most favorable to the State. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). We have stated:

Upon reviewing a denial of the motion for judgment notwithstanding the ver-diet, this Court will consider the evidence in the light most favorable to the appellee (the [S]tate), giving that party the benefit of all favorable inference[s] that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant (the defendant) that reasonable [jurors] could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fairminded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standard of review, however, is predicated on the fact that the trial judge applied the correct law.

Woods v. State, 19 So.3d 817, 819 (¶ 6) (Miss.Ct.App.2009) (quoting Moore v. State, 873 So.2d 129, 132 (¶ 13) (Miss.Ct.App.2004)).

¶ 7. Vaughn admitted to shooting Miller, but he claimed it was in self-defense. The trial court submitted the case to the jury with instructions on murder, manslaughter, and self-defense. The jury found Vaughn guilty of manslaughter, as defined by Mississippi Code Annotated section 97-3-35 (Rev.2006): “[t]he killing of a human being without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense[.]” On appeal, Vaughn argues that the verdict of manslaughter was against the weight of the evidence and contrary to the law given in the provided instructions.

¶ 8. On the other hand, Mississippi Code Annotated section 97-3-15(l)(e) (Rev.2006) provides that the killing of a human being is justifiable “[w]hen committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling, in any occupied vehicle, in any place of business, in any place of employment or in the immediate premises” of the person. Subsection (l)(f) also states that the killing of a human being is justifiable “when committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.” Vaughn also received an instruction based on the “castle doctrine,” which states that there is no duty to retreat when defending oneself or others from imminent death or serious bodily harm on one’s property. Miss.Code Ann. § 97 — 3—15(3)—(4) (Rev.2006).

¶ 9. Vaughn argues that there was insufficient evidence for finding him guilty of manslaughter because there was testimony that he was in a place that he had a right to be and that he had a reason to fear for his safety, and there was credible evidence he committed a justifiable homicide. It was established that Miller was significantly larger than Vaughn, standing 6T" and weighing over two-hundred pounds. There was also testimony that Miller came to the repast with an entourage, looking to confront Vaughn after a heated argument earlier that day. An officer also testified that Vaughn admitted he shot Miller and said it was in self-defense.

¶ 10. The State put on evidence tending to show that Vaughn had a deliberate design to kill Miller. There was corroborated testimony that Miller was neither confronting nor threatening Vaughn at the time he was shot. Witnesses testified that when Miller was shot, he was confronting a woman and facing away from Vaughn. The autopsy revealed that the bullet entered the bottom right of Miller’s skull and exited at the top left, indicating he was facing away from Vaughn. Although some witnesses testified Miller was armed, there was no weapon found on his body. In fact, the only weapon found on the premises was Vaughn’s 9mm handgun. Eyewitnesses also stated that Vaughn was making verbal threats to Miller right before the shooting. Considering the evidence in the light most favorable to the State, we find that there was sufficient evidence to convict Vaughn of manslaughter.

3. WEIGHT OF THE EVIDENCE

¶ 11. “When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18) (citation omitted).

¶ 12. Viewed in the light most favorable to the verdict, we cannot say that the evidence weighs heavily against the jury’s decision to find Vaughn guilty of manslaughter. Therefore, we find this argument is without merit.

¶ 13. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIFTEEN YEARS TO SERVE, FIVE YEARS SUSPENDED, AND FIVE YEARS OF PROBATION, AND TO PAY A $3,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED THE APPELLANT.

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

      . A large meal, usually in conjunction with a funeral.


author: GRIFFIS, P.J., IRVING, P.J.,

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant v. Richard SHOEMAKE, Appellee.
    No. 2011-CA-00179-COA.
    Court of Appeals of Mississippi.
    May 29, 2012.
    Rehearing Denied Oct. 30, 2012.

      Tara S. Clifford, Jackson, attorney for appellant.
    David C. Dunbar, Ridgeland, Lindsey T. Simmons, attorneys for appellee.
   GRIFFIS, P.J.,

for the Court:

¶ 1. On April 14, 2009, Liberty Mutual Insurance Company filed a complaint against Richard Shoemake seeking reimbursement for workers’ compensation benefits paid on his behalf. Shoemake filed a motion for summary judgment, and Liberty Mutual filed a response and a cross-motion for summary judgment. The Newton County Circuit Court granted Shoe-make’s motion for summary judgment and denied Liberty Mutual’s motion for summary judgment. Liberty Mutual appeals.

¶ 2. We find that the circuit court erred in applying Alabama law to Liberty Mutual’s subrogation rights. Thus, we find that the circuit court erred in granting Shoe-make’s motion for summary judgment and in denying Liberty Mutual’s motion for summary judgment. The judgment of the circuit court is reversed, and this case is remanded for the circuit court to determine the exact amount of Liberty Mutual’s subrogation interest for the workers’ compensation benefits paid.

FACTS

¶ 3. On September 18, 2003, Shoemake was injured when his truck collided with a CSX train in Tuskegee, Alabama. At the time of the accident, Shoemake, a Mississippi resident, was employed by Simmons Wrecker Service (Simmons), a Mississippi company. The accident occurred in the course and scope of Shoemake’s employment.

¶ 4. Simmons maintained a workers’ compensation policy with Liberty Mutual. Following his accident, Liberty Mutual paid Shoemake $132,402.65 in workers’ compensation benefits. Shoemake also filed a personal-injury lawsuit in Alabama against CSX and its engineer. Shoemake settled his claim against CSX and received $315,000 in settlement proceeds. Following the settlement, Shoemake reimbursed Liberty Mutual $82,226.84. Liberty Mutual then filed suit against Shoemake in Mississippi seeking reimbursement for the remaining $50,175.81 in workers’ compensation benefits paid on Shoemake’s behalf.

¶ 5. The circuit court reasoned that because Liberty Mutual’s subrogation claim was derived from Shoemake’s personal-injury claim in Alabama, Alabama law should also govern Liberty Mutual’s sub-rogation rights. Applying Alabama’s “common fund doctrine,” the circuit court found that Liberty Mutual was only entitled to reimbursement for $82,226.84. Alternatively, the circuit court reasoned that Liberty Mutual had waived its right to subrogation by failing to intervene in Shoemake’s personal-injury lawsuit.

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

ANALYSIS AND DISCUSSION OF THE ISSUE

¶ 7. Liberty Mutual argues that the circuit court erred in granting Shoemake’s motion for summary judgment and in denying its motion for summary judgment. Specifically, Liberty Mutual takes issue with the circuit court’s application of Alabama law to Liberty Mutual’s subrogation rights. Shoemake contends that even if Mississippi law applies, Liberty Mutual waived its right to subrogation by failing to intervene in Shoemake’s personal-injury lawsuit.

¶ 8. An appellate court reviews a circuit court’s decision to grant or deny summary judgment de novo. Patterson v. Tibbs, 60 So.3d 742, 753 (¶ 41) (Miss.2011). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). Such evidence is reviewed “in the light most favorable to the nonmoving party.” Patterson, 60 So.3d at 753 (¶ 41) (citing Chisolm v. Miss. Dep’t of Transp., 942 So.2d 136, 140 (¶ 60) (Miss.2006)).

1. Conflict of Laws

¶ 9. Shoemake contends that Alabama law governs Liberty Mutual’s subro-gation rights and that under Alabama’s “common fund doctrine,” Liberty Mutual is only entitled to reimbursement for $82,226.84. “The general rule in Alabama is that attorney fees can be awarded only when ‘authorized by statute, when provided in a contract, or by special equity, such as in a proceeding where the efforts of an attorney created a fund out of which fees may be paid.’ ” Int'l Underwriters/Brokers, Inc. v. Liao, 548 So.2d 163, 166 (Ala.1989) (quoting Shelby County Comm’n v. Smith, 372 So.2d 1092, 1096-97 (Ala.1979)).

¶ 10. The common-fund doctrine rests on the reasoning that “where one litigant has borne the burden of expense of the litigation that has inured to the benefit of others as well as himself, those who have shared in the benefits should contribute to the expense.” Id. (quoting Kimbrough v. Dickinson, 251 Ala. 677, 39 So.2d 241, 246 (1949)). Shoemake contends that Alabama’s common-fund doctrine applies to his case; therefore, Liberty Mutual’s subrogation interest should be reduced by its proportionate share of attorney’s fees, which equal $50,175.81.

¶ 11. Under the Mississippi’s Workers’ Compensation Act, an employee who obtains a judgment against a third-party tortfeasor may recover the “reasonable costs of collection.” Miss.Code Ann. § 71-3-71 (Rev. 2011). Attorney’s fees are considered a cost of collection. Owen & Galloway v. Travelers Ins. Co., 499 So.2d 776, 778 (Miss.1986). However, the Mississippi Supreme Court has consistently held that “the compensation insurance carrier cannot be charged with a portion of the employee’s cost of recovery.” Id. at 780. Therefore, under Mississippi law, the “compensation insurance carrier [is] entitled to full reimbursement out of the proceeds of the employee’s third[-]party recovery for the compensation benefits paid to the employee with no deduction for a share of the employee’s cost of the recovery.” Id.

¶ 12. Because a conflict exists between the substantive laws of Alabama and Mississippi, we must first determine which state’s law governs this case. Mississippi resolves eonfliet-of-laws questions using the “significant relationship” test found in the Restatement (Second) of Conflict of Laws (1971). Ellis v. Tmstmark Builders, Inc., 625 F.3d 222, 226 (5th Cir.2010). The Restatement sets forth seven general factors for courts to consider when analyzing choice-of-law questions:

(a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws § 6(2).

¶ 13. Courts are instructed to consider the following additional factors where the action involved sounds in tort: “(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.” Restatement (Second) of Conflict of Laws § 145(2). “These [factors] are to be evaluated according to their relative importance with respect to the particular issue.” Id.

¶ 14. Shoemake relies on O’Neal v. Kennamer, 958 F.2d 1044 (11th Cir.1992), to argue Alabama law should apply to Liberty Mutual’s subrogation rights. Kevin O’Neal, a Tennessee resident, worked for Clopay Corp., a Tennessee employer. Id. at 1045. While working in Alabama, O’Neal sustained injuries from a collision with a truck. Id. He received both disability and medical benefits under Tennessee’s workers’ compensation laws. Id. O’Neal later filed suit in an Alabama federal court against the other truck driver involved in the collision and the driver’s employer. Id. Clopay and Liberty Mutual, its workers’ compensation carrier/plan administrator, intervened in the suit. Id. O’Neal ultimately settled his personal-injury lawsuit. Id. Clopay and Liberty Mutual sought to exercise their subrogation rights according to Tennessee’s workers’ compensation law, under which they “would be subrogated for both compensation payments and medical benefits.” Id. The defendants in O’Neal’s personal-injury lawsuit argued that Alabama law controlled and that, under Alabama law, Liberty Mutual and Clopay were entitled to recover “compensation payments but not medical benefits paid.” Id. at 1046.

¶ 15. Applying Alabama’s conflict-of-laws rules, the O’Neal court determined that Alabama law controlled because “the substantive rights of an injured party in a tort case are determined according to the law of the state in which the accident occurred.” Id. Consequently, Alabama’s workers’ compensation law applied to an employer or insurer claim for workers’ compensation benefits paid on behalf of an injured employee. Id. This was true even though the employee invoked the law of a different state, Tennessee, to obtain workers’ compensation benefits. Id. at 1047. Because the court determined that Alabama’s workers’ compensation law applied, Clopay and Liberty Mutual were entitled to subrogation for compensation paid but not medical benefits. Id.

¶ 16. In support of its argument that Mississippi law controls, Liberty Mutual points to McDonald v. E.J. Lavino Co., 430 F.2d 1065 (5th Cir.1970). In McDonald, Curtis McDonald, an employee of a Mississippi company, sustained injuries in Alabama during the course of his employment. Id. at 1066. McDonald received benefits under Mississippi’s workers’ compensation law. Id. McDonald later filed a personal-injury suit in Alabama against the owner of the premises where he sustained his injuries. Id. McDonald ultimately settled his claim. Id. at 1067. The workers’ compensation insurance carrier did not seek to intervene in the third-party suit until after the settlement. Id.

¶ 17. On appeal, the United States Court of Appeals for the Fifth Circuit considered only the issue of whether the district court erred in denying the carrier’s motion to intervene. Id. at 1068. However, the court made a point of noting its “agreement with the trial court’s conclusion that the applicable substantive law determinative of [the carrier’s] subrogation rights is the Mississippi law under which compensation was paid.” Id. at 1069.

¶ 18. While the Fifth Circuit’s statement in McDonald was arguably dictum, the court continued to emphasize the importance of where workers’ compensation benefits were paid in analyzing conflict-of-laws questions. In Ellis, the Fifth Circuit applied Mississippi’s significant-relationship test in determining whether Mississippi’s or Alabama’s workers’ compensation law applied. Ellis, 625 F.3d at 225. Robert Ellis sustained injuries in Mississippi while working on a construction site for an Alabama employer who was a sub-subcontractor for Trustmark Builders, Inc. (Trustmark), an Alabama company. Id. at 223. Ellis recovered workers’ compensation benefits under Alabama’s workers’ compensation law. Id. Ellis then filed a personal-injury action against Trustmark. Id. Under Mississippi’s workers’ compensation law, injured employees were precluded from filing suit against co-employees or the general contractor. Id. at 225. However, Alabama’s workers’ compensation law permits a subcontractor’s injured employee to sue co-employees or the general contractor. Id. The distinct court determined that Mississippi law applied, thus barring Ellis’s personal-injury claim. Id. at 223.

¶ 19. The Fifth Circuit reversed the district court and determined that Alabama law applied. Id. at 229. The court noted that while the negligent conduct that resulted in Ellis’s injuries occurred in Mississippi, “[t]he Restatement makes clear that for personal injury actions ‘the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless some other state has a more significant relationship Id. at 226 (emphasis added).

¶ 20. In support of its conclusion that Alabama had a more significant relationship to the action, the court considered the fact that Ellis’s relationship with his employer was centered in Alabama. Id. at 227. Additionally, aside from Ellis, all other parties were Alabama corporations and residents. Id. Finally, the court concluded that “Alabama has a more significant relationship to this case than does Mississippi, in large part because the parties have already engaged Alabama’s workers[’] compensation scheme.” Id.

¶ 21. We find the Fifth Circuit’s more recent decision in Ellis persuasive and decline to follow O’Neal. In this case, both the injury and the negligent conduct causing the injury occurred in Alabama. Thus, the first two factors under section 145(2) favor Alabama. See Restatement (Second) of Conflict of Laws § 145(2). However, “the site of the injury does not ‘invariably’ determine choice of law when ‘the most substantial relationships of the parties and the dominant interest of the forum require application of another state’s law.’ ” Ellis, 625 F.3d at n. 17 (quoting Mitchell v. Craft, 211 So.2d 509, 510 (Miss.1968)).

¶ 22. Given that Shoemake is a Mississippi resident, and his employer, Simmons, is a Mississippi company, the next two factors under section 145(2) favor Mississippi. Furthermore, under Ellis, the fact that Shoemake received benefits in accordance with Mississippi’s workers’ compensation law also strongly favors Mississippi. Finally, applying Alabama law to an insurer’s subrogation rights even though the insurer paid benefits under Mississippi’s workers’ compensation law would not protect “justified expectations” or provide a predictable and unified result. Based on these facts, Mississippi has a more significant relationship to the case than Alabama.

¶ 23. Accordingly, we find that the circuit court erred in applying Alabama law to Liberty Mutual’s subrogation rights.

2. Intervention

¶ 24. Under Mississippi law, Liberty Mutual is entitled to reimbursement for benefits paid on Shoemake’s behalf. However, Shoemake contends that Liberty Mutual waived its subrogation rights because it never sought to intervene in Shoemake’s third-party lawsuit. But Mississippi case law “has never required the insurance carrier to join or intervene in an employee’s third-party litigation to validate or enforce its subrogated claim to the proceeds recovered in that litigation.” Federated Mut. Ins. Co. v. McNeal, 943 So.2d 658, 662 (¶ 17) (Miss.2006) (citations omitted).

¶ 25. Kevin McNeal was injured while he was on the job. Id. at 659 (¶ 2). His employer had a workers’ compensation insurance policy with Federated. Id. at (¶ 3). Federated paid McNeal workers’ compensation benefits. Id. McNeal then sued a third party for negligence and sought to recover damages for his injuries. Id. at (¶ 4). After a jury trial, McNeal obtained a judgment of $1.6 million dollars. Id. The case was eventually settled. Federated asserted its subrogation rights to the settlement funds, which McNeal disputed. The judge “directed the parties to deposit the disputed portion of the settlement funds in an interest bearing account maintained by McNeal’s attorney.” Id. at (¶5).

¶ 26. At that point, Federated filed a “Motion to Compel Compliance with [s]ection 71-3-71 requesting the circuit court order McNeal to reimburse it for all workers’ compensation benefits paid to him.” Id. at (¶ 6). The circuit court denied the motion. The court held that McNeal had not been “made whole” by the settlement, and Federated was not entitled to the reimbursement under its subrogation lien. Federated appealed this decision. Id. at 660 (¶ 6).

¶ 27. The supreme court considered section 71-3-71. McNeal, 943 So.2d at 660 (¶ 8). The court held:

[T]he statute unambiguously provides that, after deducting the costs of collection and attorneys’ fees, any recovery from a third party (whether by award or through settlement) must be applied first to repay the workers’ compensation insurer for benefits it paid the claimant. This Court, stating the statute must be strictly interpreted according to its mandatory language, has uniformly and consistently applied the statute and required reimbursement.

Id. at (¶ 9). The court concluded that McNeal was required to reimburse Federated. Id. The court then noted that Federated’s subrogation rights were statutory, not contractual, and the “made whole” doctrine was not applicable. See id. at 661 (¶13).

¶ 28. The court then considered the fact that Federated did not intervene in the underlying lawsuit against a third party tortfeasor. Id. at 662 (¶ 17). The court then stated the law applicable to this case:

Federated pointed out in oral argument that' out case law has not required a workers’ compensation insurer to intervene or join in an employee’s third-party suit in order to assert its statutory lien. Indeed, Federated is correct, as this Court has never required the insurance carrier to join or intervene in an employee’s third-party litigation to validate or enforce its subrogated claim to the proceeds recovered in that litigation.

Id. (emphasis added and citations omitted). As the supreme court said, there is absolutely no requirement that the workers’ compensation carrier intervene to enforce its statutory subrogation claim.

¶ 29. In McNeal, the question considered by the court was “not whether Federated is entitled to subrogation without intervention, but rather whether Federated may appeal the circuit court’s decision without intervention.” Id. On this question, the court held: “However, we stress that the better practice for insurers who anticipate the possible need for judicial assistance in enforcing their liens is to file a formal intervention in accordance with the provisions of Rule 24 of the Mississippi Rules of Civil Procedure.” McNeal, 943 So.2d at 663 (¶ 20).

¶ 30. Liberty Mutual is entitled to statutory reimbursement. The supreme court “has never required the insurance carrier to join or intervene in an employee’s third-party litigation to validate or enforce its subrogated claim to the proceeds recovered in that litigation.” Id. at 662 (¶ 17).

¶ 81. Accordingly, we find that the circuit court erred in granting Shoemake’s motion for summary judgment and in denying Liberty Mutual’s motion for summary judgment. The judgment of the circuit court is reversed, and this case is remanded for the circuit court to determine the exact amount of Liberty Mutual’s subrogation interest for the workers’ compensation benefits paid.

¶ 32. THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY IS REVERSED, AND THIS CASE IS REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

LEE, C.J., BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY RUSSELL, J. MAXWELL, J., NOT PARTICIPATING.

IRVING, P.J.,

concurring in part and dissenting in part:

¶33. I agree with the majority that Mississippi’s workers’ compensation law governs this case. However, I disagree with the majority that Liberty Mutual should be reimbursed the full amount of the workers’ compensation benefits that it paid Shoemake. I believe that Liberty Mutual should be reimbursed the amount that it paid minus a pro rata share of the costs of the prosecution of the civil case against the third-party tortfeasor. Therefore, I dissent. In my judgment, the circuit court reached the right result, even though it erred in finding that Alabama’s workers’ compensation law applied.

¶ 34. Mississippi Code Annotated section 71-3-71 (Rev. 2011) provides in pertinent part:

The acceptance of compensation benefits from or the making of a claim for compensation against an employer or insurer for the injury or death of an employee shall not affect the right of the employee or his dependents to sue any other party at law for such injury or death, but the employer or his insurer shall be entitled to reasonable notice and opportunity to join in any such action or may intervene therein. If such employer or insurer join [sic] in such action, they [sic] shall be entitled to repayment of the amount paid by them [sic] as compensation and medical expenses from the net proceeds of such action (after deducting the reasonable costs of collection)....

¶ 35. The question presented here is whether Liberty Mutual, which paid workers’ compensation benefits to Shoemake, is entitled to full reimbursement, without a deduction for a pro rata share of the costs of collection, from the proceeds recovered by Shoemake in a civil action against the third-party tortfeasor, since Liberty Mutual did not exercise its statutory right of intervention in the civil action. Stated another way, does section 71-3-71 require the injured worker, who has successfully sued the third-party tortfeasor, to bear all the costs of collection? I do not believe that the Mississippi Supreme Court has ever spoken directly to this issue. However, I readily admit that there is dictum in McNeal suggesting that an employer or insurer that has paid benefits to an injured worker may recoup those benefits even where the employer or insurer has failed to intervene in the injured worker’s third-party civil action. However, McNeal does not even speak indirectly to the question of shared costs.

¶ 36. In McNeal, the issue on appeal was not whether the insurer was entitled to be reimbursed for workers’ compensation benefits paid to an injured worker without intervention in the injured worker’s third-party civil action, but whether it could appeal, without intervention, the judgment of the circuit court denying sub-rogation because the injured employee had not been made whole. McNeal, 943 So.2d at 662 (¶ 17). In answering that question affirmatively, the supreme court observed: “Indeed, Federated is correct, as this Court has never required the insurance carrier to join or intervene in an employee’s third-party litigation to validate or enforce its subrogated claim to the proceeds recovered in that litigation.” Id. As stated, this statement is clear dictum, and the McNeal court recognized it as such, noting: “The dissent correctly points out that Federated failed to strictly comply with the mandates of Rule 24 [of Mississippi Rules of Civil Procedure], If this case involved Federated’s failure to comply with statutory requirements, the dissent’s arguments would be well-taken.” Id. at 662 n. 5 (¶ 17).

¶ 37. Unlike McNeal, today’s case involves compliance with statutory requirements. Section 71-3-71 is clear that joining in the employee’s third-party civil action is a prerequisite to the employer’s or insurer’s right to repayment of the amounts paid by them. As noted, section 71-3-71 states: “If such employer or insurer join in such action, they shall be entitled to repayment of the amount paid by them .... ” It seems to me that a proper reading and analysis of this language requires the employer or insurer to intervene in the third-party action to be absolutely entitled to repayment. This conclusion is compelled by the statute’s use of the words “if’ and “shall.” My view that intervention is required is supported by a leading authority on workers’ compensation law who argues that Rule 17(b) of the Mississippi Rules of Civil Procedure makes intervention mandatory for “the employer or carrier claiming statutory reimbursement rights in a civil action in state court.” John R. Bradley & Linda R. Thompson, Mississippi Workers’ Compensation § 10:2 (Thompson-West 2008).

¶ 38. Granted, it is less clear whether the employer or insurer may, as opposed to shall, be entitled to repayment if the employer or insurer does not join in the third-party action. What is clear, however, is that section 71-3-71’s intent is to provide a procedure that will guarantee to an employer or insurer the opportunity to be repaid — by the third party or from the recovery obtained against the third party by the injured worker — the amount that the employer or insurer has paid to the injured worker. That procedure allows either the injured worker, employer, or insurer to pursue recovery against the third party. However, if suit is brought by the employer or insurer and reasonable notice is given to the injured worker to be represented in the lawsuit, the injured worker cannot bring a separate action against the third party, as all claims that he may have had will be settled in the employer or insurer’s lawsuit. Conversely, it also seems that the right of the employer or insurer to bring a separate lawsuit against the third party would be foreclosed where a lawsuit is brought by the injured worker and reasonable notice is given by the injured worker to the employer or insurer.

¶ 39. So what useful principles can be derived from the statutory scheme discussed in the preceding paragraph? First, an employer or insurer that pays workers’ compensation benefits to an injured employee is entitled to full reimbursement from the third-party tortfeasor for the benefits paid if the employer or insurer sues the third-party tortfeasor and recovers an amount, minus the costs of collection, that is greater than or equal to the benefits paid by the employer or insurer. Second, if the employer or insurer joins in the injured worker’s lawsuit against the third-party tortfeasor after being given the statutory notice by the injured worker, the employer or insurer is also entitled to full repayment for the amount of benefits paid if the amount of recovery, minus the costs of collection, is greater than or equal to the amount of benefits paid. Third, if the employer or insurer neither files a lawsuit against the third-party tortfeasor nor joins in the injured worker’s lawsuit against the third party, the employer or insurer’s claim for repayment may be barred or waived, or the employer or insurer may be entitled to some repayment, the exact amount to be determined by principles of equity since the employer or insurer did not share in the costs of collection of the recovery against the third party. The statute, by its plain wording, does not adjudicate or address the employer or insurer’s entitlement to repayment of benefits if the employer or insurer does not join in the injured worker’s lawsuit against the third-party tortfeasor.

¶ 40. Although the majority reverses the circuit court’s judgment and remands this case to the circuit court “to determine the exact amount of Liberty Mutual’s sub-rogation interest for the workers’ compensation benefits paid,” it fails to give any further guidance. Maj. Op. (¶ 31). I can only assume that the “subrogation interest” that the circuit court is to determine is the full amount of benefits paid, which Liberty Mutual claims is $132,402.65.

¶ 41. I cannot agree that Liberty Mutual should be reimbursed the full amount that it paid to Shoemake without being charged anything for the cost of collection. While section 71-3-71 does not define costs of collection, our supreme court has stated that costs of collection includes attorney’s fees. Owen v. Travelers Ins. Co., 499 So.2d 776, 777 (Miss.1986). It is grossly unfair and inequitable for Liberty Mutual to reap the benefits of Shoemake’s hard work in obtaining a judgment against the third-party tortfeasor without having to share in the costs of collection. For sure, it is not the purpose of section 71-3-71 to give a free ride to the employer or insurer, or impose on the injured worker the burden of bearing the entire cost of recovery against the third-party tortfea-sor. Rather, the purpose is to allow the employer or insurer to be fully compensated if they take the necessary steps and bear the necessary costs, whether alone or in conjunction with the injured worker, of obtaining a judgment against the third-party tortfeasor.

¶ 42. For the reasons discussed, I dissent from that portion of the majority opinion that apparently directs the circuit court to enter judgment for Liberty Mutual in the full amount of the benefits paid without a pro rata deduction for the costs of collection.

RUSSELL, J., JOINS THIS OPINION.

      . Alabama applies the lex loci delicti rule when deciding conflict-of-laws questions arising under tort actions and actions arising under its workers’ compensation law. Powell v. Sappington, 495 So.2d 569, 569-70 (Ala.1986). Under this rule, "an Alabama court will determine the substantive rights of an injured party according to the law of the state where the injury occurred.” Id. at 570 (quoting Norris v. Taylor, 460 So.2d 151, 152 (Ala.1984)). However, Mississippi does not follow the lex loci delicti rule in resolving conflict-of-laws questions. See McDaniel v. Ritter, 556 So.2d 303, 315 (Miss.1989). Instead, the state where the injury occurred is one of several factors considered in determining which state has a more significant relationship to the action. Id. at n. 11.

      . This Court unanimously cited and applied this language in St. Paul Travelers Insurance Co. v. Burt, 982 So.2d 992, 994 (¶ 14) (Miss.Ct.App.2008).

      . Rule 17(b) provides:
      In subrogation cases, regardless of whether subrogation has occurred by operation of law, assignment, loan receipt, or otherwise, if the subrogor no longer has a pecuniary interest in the claim the action shall be brought in the name of the subrogee. If the subrogor still has a pecuniary interest in the claim the action shall be brought in the names of the subrogor and the subrogee. (Emphasis added).

      . The first paragraph of section 71-3-71, which I quoted earlier in this dissent, allows the injured worker to pursue an action against the third-party tortfeasor. The third paragraph of the section permits suit against the third-party tortfeasor by the employer or insurer, and provides in pertinent part:
      An employer or compensation insurer who shall have paid compensation benefits under this chapter for the injury or death of the employee shall have the right to maintain an action at law against any other party responsible for such injury or death, in the name of such injured employee or his beneficiaries, or in the name of such employer or insurer, or any or all of them. If reasonable notice and opportunity to be represented in such action by counsel shall have been given to the compensation beneficiary (injured worker), all claims of such compensation beneficiary (injured worker) shall be determined in such action as well as the claim of the employer or insurer.