author: CARLSON, Presiding Justice,

text:
    GUIDANT MUTUAL INSURANCE COMPANY v. INDEMNITY INSURANCE COMPANY OF NORTH AMERICA.
    Nos. 2007-CA-01593-SCT, 2006-CA-01472-SCT.
    Supreme Court of Mississippi.
    June 25, 2009.

      Dion Jeffery Shanley, Oxford, H. Scot Spragins, attorneys for appellant.
    Leann W. Nealey, Robert A. Miller, Jackson, attorneys for appellee.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   CARLSON, Presiding Justice,

for the Court.

¶ 1. Today’s case presents issues concerning priority of coverage, costs of defense, and contribution between insurers after a vehicular accident in which two individuals were seriously injured when their vehicle collided with a vehicle owned and operated by a volunteer fireman en route to the scene of a fire. Aggrieved by the trial court’s entry of final judgment on these issues, one insurer has appealed and one insurer has cross-appealed. In the end, we reverse the final judgment entered by the Circuit Court of Marshall County and remand this case for farther proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 22, 1994, James Hin-gle, a volunteer fireman with the Slayden Mt. Pleasant Volunteer Fire Department in Marshall County, was dispatched to the scene of a fire in the county. En route to the fire scene, while driving his personal vehicle, Hingle collided with a vehicle occupied by Sam and Ruby Anderson, causing the Andersons to suffer serious injuries. As a result of this accident, on November 15, 1995, the Andersons filed two separate lawsuits in the Circuit Court of Marshall County. One lawsuit named only Hingle and alleged that his negligence in the operation of his vehicle proximately caused the vehicular accident and the resulting injuries and damages, which the Anderson alleged to be in the amount of $4,150,000 (“Hingle lawsuit”). The other lawsuit sought identical damages and, after amendment, named as defendants Marshall County, the Slayden Mt. Pleasant Fire Department, and the Marshall County Board of Supervisors (“Marshall County lawsuit”). In the Marshall County lawsuit, the Andersons asserted, inter alia, that the defendants were liable for Hingle’s negligence inasmuch as Hingle was their employee, agent, servant, or representative, who was, at the time of the accident, driving his personal vehicle to the scene of a fire in the performance of his duties as a member of a volunteer fire department in Marshall County.

¶ 3. At the time of the accident, the following insurance coverages were in force: (1) Guidant Mutual Insurance Company, f/k/a Preferred Risk Mutual Insurance Company, (Guidant) insured Hingle’s vehicle under a personal automobile liability policy with a $250,000-per-per-son/$500,000-per-accident limit; (2) Gui-dant also had issued to Hingle a personal umbrella protection policy with a $1,000,000 limit; (3) Indemnity Insurance Company of North America (INA) had issued to Marshall County (also covering Slayden Mt. Pleasant Fire Department) a business automobile liability policy with limits of $300,000; and (4) Titan Indemnity Company separately insured the Marshall County Board of Supervisors with a business automobile liability policy with limits of $300,000. Both the INA policy and the Titan policy provided coverage as to non-owned automobiles.

¶ 4. While the two lawsuits were pending, a dispute arose among the insurance companies as to which company should defend the litigation and which policy or policies should be considered as providing primary coverage and excess coverage. On June 19, 1998, INA filed a declaratory judgment action against Guidant and Titan in the Circuit Court of Marshall County. In that action, INA sought to have the circuit court determine that Guidant had a duty to defend all the defendants in the Hingle and Marshall County lawsuits; that INA had no duty to defend any of the defendants; that Titan and INA had coverage on an excess basis only; and that both of Guidant’s policies afforded primary coverage for all defendants.

¶ 5. In due course, INA filed a motion for summary judgment in the declaratory judgment action; however, the trial court held INA’s motion in abeyance pending a final determination on the merits of the underlying lawsuit in the Marshall County case. Following that ruling, INA provided counsel to defend Marshall County and the fire department.

¶ 6. On August 26, 2003, the trial court granted Titan’s Motion for Summary Judgment on the basis that James Hingle was not an employee of Marshall County; thus the trial court found there was no legal or factual basis for Titan, the insurer of the Marshall County Board of Supervisors, to be required to extend any liability coverage, defense, or indemnification for claims arising from the November 1994 automobile accident. Accordingly, the trial court dismissed all claims against Titan in the declaratory judgment action filed by INA.

¶ 7. Guidant eventually entered into settlement negotiations with the Andersons as to all their claims. On February 21, 2003, Guidant sent a letter to INA notifying the company of a settlement offer and providing INA with the opportunity to contribute its $300,000 coverage under INA’s policy toward the proposed settlement offer. INA responded that until Gui-dant was willing to discuss reimbursement of INA’s legal costs, INA was not willing to discuss a settlement contribution. In October 2003, prior to trial in the Hingle and Marshall County lawsuits, Guidant settled with the Andersons as to all their claims for the sum of $750,000. INA refused to participate in the Anderson settlement. Guidant allocated $300,000 from the personal automobile liability policy and $450,000 from the umbrella policy for the total payment of $750,000.

¶ 8. Thereafter, Guidant filed a motion for summary judgment against INA in the declaratory judgment action, seeking contribution or reimbursement from INA in the amount of $450,000, the sum Guidant had paid to the Andersons under its umbrella policy. Guidant argued that the umbrella policy was excess to the INA automobile policy issued to Marshall County-

¶ 9. INA responded and likewise filed its own motion for summary judgment, alleging that Guidant was a voluntary payor; thus, according to INA, it had no duty to defend or to reimburse Guidant. INA also renewed its motion for summary judgment, alleging that Guidant should be required to reimburse INA for attorney’s fees and expenses incurred in defending Marshall County and the fire department in the Anderson litigation.

¶ 10. On July 30, 2006, the trial court dismissed both motions for summary judgment with prejudice. The trial court found that Guidant was the primary insurer under both of its policies, and until the $1.5 million limit was exhausted, INA had no obligation to participate in the settlement. The trial court also found that Marshall County and the fire department were insureds of INA; therefore, INA owed them a duty of defense. The trial court additionally found that INA was not entitled to reimbursement from Guidant, and that Guidant was not entitled to contribution from INA for the settlement costs. In November 2006, the trial court sustained INA’s Motion for Summary Judgment and clarified that the basis of the July 2006 ruling was Guidant’s status as a voluntary payor.

¶ 11. The trial court issued a final judgment in August 2007, which incorporated the 2006 orders, dismissing the declaratory-judgment with prejudice. Guidant filed a notice of appeal and amended notice of appeal. Guidant appealed from the portion of the final judgment denying its request for contribution from INA for settlement costs and the finding that it was a voluntary payor. INA filed a notice of cross-appeal on the issue of the trial court’s denial of its request for reimbursement of defense costs while defending Marshall County and the fire department.

DISCUSSION

¶ 12. In today’s appeal, the parties raise several issues. For the sake of discussion, we restate the issues as follows: Guidant asks us to consider whether the trial court erred in finding that: (1) Gui-dant was the primary insurer under both of the policies issued to James Hingle; (2) Guidant was not entitled to contribution from INA for settlement costs; and (3) Guidant was a voluntary payor. On cross-appeal, INA asks us to consider whether the trial court erred in finding that INA was not entitled to reimbursement for the legal expenses incurred by INA in its defense of Marshall County and the volunteer fire department.

¶ 13. This Court employs a de novo standard in reviewing a trial court’s grant of summary judgment. Wise v. United Servs. Auto. Ass’n, 861 So.2d 308, 311 (Miss.2003).

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Miss. R. Civ. P. 56(c). The trial court must carefully review all evidentiary matters in the light most favorable to the nonmoving party. Wise, 861 So.2d at 311 (citing Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983)). If in this view, the moving party is entitled to judgment as a matter of law, summary judgment should be granted. Id. (citing Brown, 444 So.2d at 362). In today’s ease, both parties assert that there are no disputed issues of material fact. Appellate review of purely legal questions also requires a de novo standard of review. Warwick v. Gautier Util. Dist., 738 So.2d 212, 215 (Miss.1999).

I. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT GUIDANT WAS THE PRIMARY INSURER UNDER BOTH POLICIES ISSUED TO JAMES HINGLE.

A. Guidant’s automobile policy

¶ 14. As issuer of James Hingle’s personal automobile policy number 003888-283, Guidant admits that it was a primary insurer; however, Guidant argues that INA was a coprimary insurer, given that INA insured Marshall County and its employees and volunteers under a business automobile liability policy, and given that at the time of the accident, James Hingle was responding to a call on behalf of the Slayden Mt. Pleasant Volunteer Fire Department. As such, Guidant urges that the trial court erred in finding that Guidant was the only primary insurer for all defendants on the Anderson claims in the Marshall County case.

¶ 15. Guidant’s policy issued to Hingle included the following “other-insurance” clause:

OTHER INSURANCE
If there is other applicable liability insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits....

¶ 16. INA’s business automobile liability policy issued to Marshall County and covering the fire department included the following “other-insurance” clause:

B.5. OTHER INSURANCE
a. For any covered “auto” you own, this Coverage Form provides primary insurance. For any covered “auto” you don’t own, the insurance provided by this Coverage Form is excess over any other collectible insurance ....
b. When this coverage form and any other coverage form or policy covers on the same basis, either excess or primary, we will pay only our share. Our share is the portion that the Limit of the Insurance of our Coverage Form bears to the total of the limits of all the coverage forms and policies covering on the same basis.

¶ 17. INA’s business automobile liability policy included the following definition of an “insured”:

Section II — Liability Coverage is changed by adding the following:
1. WHO IS AN INSURED
d. Any volunteer or employee of yours while using a covered “Auto” you don’t own, hire or borrow in your business or your personal affairs.
Insurance provided by this endorsement is excess over any other insurance available to any volunteer or employee.

¶ 18. Guidant is correct in its assertion that, when there is a conflict in the policies, and the “two policies are indistinguishable in meaning and intent,” they should be found “mutually repugnant and must be disregarded.” Allstate Ins. Co. v. Chicago Ins. Co., 676 So.2d 271, 275 (Miss. 1996) (quoting Travelers Indem. Co. v. Chappell, 246 So.2d 498, 504 (Miss.1971)). ‘Where competing insurance policies each contain conflicting ‘other insurance’ clauses or ‘excessive coverage’ clauses, the clauses shall not be applied and benefits under the policies shall instead be pro rated according to the coverage limits of each policy.” Id. (quoting Chappell, 246 So.2d at 504). Moreover, Guidant contends that coverage disputes of priority of primary and secondary coverage are resolved by determining the relative proximity the risk bears to the loss, and that there can be more than one primary insurer after a loss.

¶ 19. INA argues that, for automobiles the county did not own (referred to as “nonowned vehicles”), the coverage provided by INA was in “excess over any other collectible insurance available to any volunteer or employee.” Therefore, INA urges this Court to apply the plain language of the policy. INA cites the general rule that where a policy contains language that is unambiguous, the terms of the policy will be enforced. See, e.g., Miss. Farm Bu reau Mut. Ins. Co. v. Walters, 908 So.2d 765, 769 (Miss.2005) (citing State Auto. Mut. Ins. Co. v. Glover, 253 Miss. 477, 176 So.2d 256, 258 (1965)). INA contends that the other available insurance coverages available to Hingle were both the automobile and umbrella polices that Guidant had issued to Hingle.

¶ 20. The long-standing law in Mississippi is that the insurance policy issued to the owner of the vehicle is the primary policy—both parties concede as much. See Chappell, 246 So.2d at 505. In applying this rule to the priority-of-coverage dispute, the other collectible insurance in this case was the Guidant automobile policy issued to the owner of the vehicle, James Hingle. While it is clear that Marshall County’s policy insured Marshall County’s employees and volunteers, that coverage for vehicles not owned by Marshall County or the fire department was “excess over any other insurance” maintained by the county volunteers or employees on their personal vehicles. Therefore, the trial court committed no error in finding that Guidant was the primary insurer.

¶ 21. This holding is in keeping with this Court’s precedent in United States Fidelity & Guaranty Co. v. John Deere Insurance Co., 830 So.2d 1145 (Miss.2002). In John Deere, an insured driver and passenger, both of whom owned car dealerships and were covered under commercial liability policies for their respective businesses, were involved in an accident with an uninsured motorist. Id. at 1146. The driver and passenger sued both insurance companies, John Deere, and USF & G, for uninsured motorist benefits. The trial court granted summary judgment in favor of John Deere on the basis that the two policies’ “other-insurance” clauses were in conflict and mutually repugnant, and that the enforcement of these clauses would result in no coverage for the plaintiff. Id. at 1148. Both policies also contained identical prorata clauses which provided that benefits in such cases involving two policies should be prorated according to the coverage limits of each policy. Id. The ultimate issue before the Court was whether the payment of benefits should be prorated according to the coverage limits of each policy or whether the benefits should be paid out according to priority of coverage. Id. at 1146. This Court held:

We find that the two policies should not be pro-rated because, under Mississippi law, the insurer for the owner of the vehicle involved in the accident is the primary insurer. Even though the “other insurance” clauses in the two policies are identical, they do not conflict. The “other insurance” clause simply establishes the order of priority of payments. The insurer of the vehicle is first in the paying line of uninsured motorist benefits.

Id. This Court thus found that USF & G was liable only for any judgment in excess of John Deere’s limits of coverage; however, the judgment did not exceed the limits of John Deere’s primary policy. Id. at 1148.

¶ 22. Applying this long-held rule that the owner’s policy is primary, we find no conflict in the two polices in this case. Guidant, as the issuer of the liability insurance policy to the owner of the vehicle involved in the accident, is the primary insurer. While the underlying premise of Guidant’s position as to this policy is correct inasmuch as Guidant concedes it is a primary insurer, the notion that INA is a coprimary insurer suggests that INA has pro rata exposure for payments. This argument simply is not supported by Mississippi caselaw. However, it is equally true that INA is next in line for payment beyond the primary limits afforded by the Guidant automobile policy issued to Hin-gle.

B. Guidant’s Umbrella Policy

¶ 23. Guidant argues that the trial court erred in finding that the personal umbrella policy issued by Guidant to Hin-gle was primary over the business automobile liability policy issued by INA. Guidant directs our attention to the section on liability coverage in its umbrella policy:

PART A — LIABILITY COVERAGE
LIABILITY We will pay the ultimate net loss that any covered person becomes legally obligated to pay because of personal injury or property damage to which the insurance applies occurring during the policy period. We will pay only that part Of the ultimate net loss which is in excess of the applicable underlying limit or retained limit.
Any insurance provided in the policy shall be excess over any other collectable insurance which applies to any part of the ultimate net loss. This does not apply to any policy specifically designed to provide coverage after benefits of this policy are used up.

¶ 24. INA urges this Court to adopt the reasoning of the trial court inasmuch as the rule promulgated in John Deere and Chappell that a vehicle owner’s insurer is the primary insurer should also apply to the vehicle owner’s umbrella policy. Likewise, INA points to the above passage of Guidant’s policy in support of INA’s contention that the umbrella policy is tied to the underlying limits of the automobile liability policy, because it states Guidant will pay “that part of the ultimate net loss which is in excess of the applicable underlying limit or retained limit.”

¶ 25. Though this is an issue of first impression for this Court, generally, most courts have held that an umbrella policy is not “other insurance” for purposes of a primary policy. 22 Holmes’ Appleman on Insurance § 140.2, 391 (2003). As explained in Holmes’ Apple-man on Insurance, there are two types of excess clauses:

The first type of excess clause, primary excess coverage, occurs when primary policies become excess by operation of the “other insurance” clause. This type of excess clause precludes an insured from double recovery for the benefit of the insurers. The second type of excess clause, also referred to as a true excess clause, does not act as a primary, but is specifically purchased by the insured to protect against large losses or an accumulation of small losses. The difference in the two types is that the latter has lower premiums and higher limits of liability.

Id. at 386. Moreover, primary excess coverage is typically automobile insurance that provides coverage for a temporary substitute or nonowned automobile that is in excess over any other valid and collectible insurance. Id. at 386-87. An umbrella policy falls into the latter category of true excess insurance. Id. at 389. Thus, by design, an umbrella policy is for the purpose of true excess coverage above and beyond any other applicable primary excess policy, even where the umbrella policy is held by the owner of the vehicle. “Other-insurance” clauses from primary automobile policies should not be compared with “other-insurance” clauses in true excess policies, for example, umbrella policies. Since they do not warrant comparison, they cannot be found to have identical, mutually repugnant clauses. Therefore, Guidant is correct in its assertion that the trial court erred in finding that Guidant’s personal umbrella policy issued to Hingle must be exhausted before INA’s business automobile liability policy (a policy which specifically covered the nonowned automobile involved in the accident) should be applied. Accordingly, we are required to reverse the trial court as to this issue and remand for proceedings consistent with this opinion.

II. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT GUIDANT WAS A VOLUNTARY PAYOR.

¶ 26. On the eve of trial, the injured plaintiffs, the Andersons, sought settlement. As part of the agreed-upon settlement between Guidant and the Andersons, Guidant paid a total of $750,000 to the Andersons. Guidant allocated $300,000 to the personal automobile liability policy, and $450,000 to the personal umbrella policy. Despite Guidant having provided notice to INA of the Andersons’ demand to settle all claims, INA declined to participate in these settlement negotiations with the Andersons because INA conditioned its participation in mediation/settlement negotiations on Gui-dant reimbursing INA’s defense costs, an offer rejected by Guidant. As a result of this settlement, INA was released from the suit, as were its insureds, Marshall County and the fire department.

¶ 27. Guidant argues that it was not a voluntary payor pursuant to this Court’s definition of a “volunteer” in the context of insurance disputes in State Farm Mutual Automobile Insurance Co. v. Allstate Insurance Co., 255 So.2d 667, 668 (Miss. 1971). In State Farm, this Court defined a volunteer as “[a] stranger or intermed-dler who has no interest to protect and is under no legal or moral obligation to pay.” Id. at 669 (quoting Mass. Bonding & Ins. Co. v. Car & Gen. Ins. Corp., 152 F.Supp. 477, 482 (D.C.Pa.1957)). Guidant argues that because it was not a volunteer, it had a legal contractual obligation to protect and defend its insured. Moreover, Gui-dant cites McLean v. Love, 172 Miss. 168, 157 So. 361 (1934), for the premise that one who pays under compulsion to pay is no volunteer. Guidants rests its eom-pelled-settlement argument on Hartford Accident & Indemnity Co. v. Foster, 528 So.2d 255 (Miss.1988):

[W]hen [a] suit covered by a liability insurance policy is for a sum in excess of the policy limits, and an offer of settlement is made within the policy limits, the insurer has a fiduciary duty to look after the insured’s interest at least to the same extent as its own, and also to make a knowledgeable, honest, and intelligent evaluation of the claim commensurate with its ability to do so. If the carrier fails to do this, then it is liable to the insured for all damage occasioned thereby.

Id. at 265 (footnote omitted). In other words, Guidant argues that, because it had a duty to its insured to protect Hingle’s interests by settling, Guidant settled with the Andersons under compulsion.

¶ 28. INA argues that Guidant’s settlement payment fits squarely into Mississippi’s definition of a voluntary payor. In support of this argument, INA asserts the following: (1) Guidant conceded that it did not owe the $450,000 paid from Hin-gle’s personal umbrella policy, (2) Guidant controlled settlement negotiations with the Andersons by means of mediation, at which INA was not present; (3) Guidant’s agreement with the Andersons to pay $750,000 under its policies to effect settlement came about absent any compulsion or legal obligation and with full knowledge of the facts; (4) Guidant did not enter into an agreement with INA to preserve the coverage dispute for a later date. INA further argues that, in an indemnity case, a party may not seek reimbursement following voluntary settlement without proving that “(1) it was legally liable to an injured third party, (2) that it paid under compulsion, and that (3) the amount it paid was reasonable.” Certain Underwriters at Lloyd’s v. Knostman, 783 So.2d 694, 698 (Miss.2001) (citing Keys v. Rehab. Ctrs., Inc., 574 So.2d 579, 584 (Miss.1990)). However, this case concerns the issue of contribution, not indemnity.

¶ 29. Our disposition of this issue is controlled by State Farm Mutual Automobile Insurance Company v. Allstate Insurance Company, 255 So.2d 667 (Miss.1971), wherein State Farm settled with its insured and sought contribution from Allstate. Id. at 668. The trial court granted Allstate’s demurrer, and State Farm appealed. Id. This Court reversed and remanded, finding that State Farm had the right to move forward with its claim of contribution. Id. at 669. In State Farm, this Court stated:

“The majority of cases now recognize the undesirability of rewarding the insurer which refuses to honor its contractual obligations, and hold that payment by an insurer which properly undertakes a burden of settlement or defense does not render it a volunteer, not entitled to recover.”

Id. (quoting 8 Appleman on Insurance § 4913, 398).

¶ 30. Here, as in State Farm, Guidant is entitled to move forward with its claim of contribution. However, INA is liable only for contribution up to its stated limits of liability, if Guidant can prove it was legally liable to settle, and that the amount it paid the injured party or parties was reasonable.

III. WHETHER THE TRIAL COURT ERRED IN REFUSING TO AWARD INA REIMBURSEMENT FOR COSTS ATTRIBUTABLE TO THE DEFENSE OF MARSHALL COUNTY AND THE SLAYDEN MT. PLEASANT VOLUNTEER FIRE DEPARTMENT.

¶ 31. In its cross-appeal, INA contends that Guidant had a duty to defend Marshall County and the Slayden Mt. Pleasant Volunteer Fire Department because Guidant’s policy insured Hingle and “any other person or organization legally responsible for acts or omissions of Hingle.” Furthermore, the Guidant policy stated that Guidant “will defend any suit seeking damages for personal injury or property damage.... ” Moreover, INA contends that it properly demanded Guidant provide a defense to the fire department and Marshall County via correspondence as early as February 8, 1996. This demand letter, from an INA liability specialist to a claims supervisor at Guidant, stated: “[W]e believe the Preferred Risk (now Guidant) polices provide primary coverage to all of the defendants in Anderson v. Marshall County, et al. ... and that [Gui-dant] should be defending this lawsuit. We, therefore, demand that [Guidant] immediately assume the defense of the defendants in this lawsuit.” Subsequent correspondence between the two companies and counsel for the two companies reiterated INA’s position that Guidant had a duty to defend both Marshall County and the volunteer fire department.

¶ 32. Guidant counters that INA had a contractual duty to defend its insureds under the policy issued by INA to the volunteer fire department and Marshall County. INA, however, points to the following statement from its policy, “[W]e have no duty to defend ‘suits’ for ‘bodily injury’ or ‘property damage’ ... not covered by this Coverage Form.” INA maintains that, since it was an excess carrier, it had no such duty to defend under the policy.

¶ 33. INA cites two cases applying Mississippi law in support of the reimbursement of defense costs by primary carriers to secondary carriers. In State Farm Mutual Automobile Insurance Company v. Commercial Union Insurance Company, 394 So.2d 890, 894 (Miss.1981), this Court held that the primary insurer had a clear duty to defend, and because it failed to do so, the secondary carrier was entitled to all reasonable and necessary expenses in fulfilling the primary insurer’s obligations. In applying the holding from State Farm, the United States District Court for the Southern District of Mississippi likewise found that the primary insurer for the owner of the vehicle owed reimbursement for reasonable and necessary expenses to the secondary carrier, the insurer of the driver involved in the accident. State Farm Auto. Ins. Co. v. Universal Underwriters Ins. Co., 601 F.Supp. 286, 289-91 (S.D.Miss.1984).

¶ 34. As previously stated, under Mississippi law, “when the words of an insurance policy are plain and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written.” Progressive Gulf Ins. Co. v. Dickerson & Bowen, Inc., 965 So.2d 1050, 1054 (Miss. 2007) (citing Paul Revere Life Ins. Co. v. Prince, 375 So.2d 417, 418 (Miss.1979)). “[T]he obligation of a liability insurance company under a policy provision requiring it to defend an action brought against the insured by a third party is to be determined by the allegations of the complaint in such action.” S. Farm Bureau Cas. Ins. Co. v. Logan, 238 Miss. 580, 589, 119 So.2d 268, 271 (1960). Furthermore, this Court has held that the obligation to defend is a contractual right as set out in the policy, separate and distinct from the issue of coverage. Travelers Indem. Co. v. East, 240 So.2d 277, 279-280 (Miss.1970). In East, this Court stated, “[t]he defense clause in the policy is considered to be a contractual right of the insured, for which he paid a premium, irrespective of other insurance and irrespective of primary or excess coverage.” Id. at 80 (quoting Logan, 238 Miss, at 588, 119 So.2d at 271 (1960)). St. Paul Fire & Marine Ins. Co. v. Thompson, 150 Mont. 182, 433 P.2d 795 (1967); Simmons v. Jeffords, 260 F.Supp. 641 (D.C.Pa.1966); Nat’l Cas. Co. v. Ins. Co. of N. Am., 230 F.Supp. 617 (D.C.Ohio 1964); 7A Appleman Insurance Law and Practice § 4685 (1962); Am. Employers Ins. Co. v. Goble Aircraft Specialties, 205 Mise. 1066, 131 N.Y.S.2d 393 (N.Y.Sup. 1954); Am. Cas. Co. of Reading, Pa. v. Howard, 187 F.2d 322 (4th Cir.1951).

¶ 35. Because Guidant’s policy indicated that it insured any “organization legally responsible for acts or omissions of Hingle” (i.e., the volunteer fire department), and because the theory of the underlying complaint was that the volunteer fire department was legally responsible for the acts or omissions of Hingle in the course of his duties as a fireman, Guidant had a duty to defend the fire department and the county. INA should be entitled to all reasonable, necessary expenses incurred in the course of defending the fire department and Marshall County, but only those expenses incurred after demand was made on Guidant to provide a defense.

¶ 36. The record contains two affidavits from INA’s retained counsel. One affidavit reveals that INA expended $26,764.12 in fees and expenses to John S. Hill of Mitchell, McNutt & Sams. The other affidavit states that INA expended $30,983.74 in fees and expenses to Susan L. Steffey of Watkins & Eager, PLLC. However, we find the record lacking inasmuch as these affidavits do not include any itemization of fees or costs, nor do they include any dates. Thus, this Court’ must remand this issue to the trial court, consistent with this opinion, for a determination of what reasonable, necessary defense costs were incurred in the course of INA’s defense of the volunteer fire department and Marshall County following the February 8, 1996, demand letter.

CONCLUSION

¶ 37. We find that, consistent with Mississippi law, the personal automobile liability policy Guidant issued to Hingle was primary, because it was issued to the owner of the vehicle involved in the accident. INA’s business automobile liability policy issued to the county and fire department provided coverage for all nonowned vehicles, but only in excess of the primary automobile insurance available to the employee, which in this case was Guidant’s personal automobile liability policy. Because the - umbrella policy that Guidant issued to Hingle was true excess coverage, the other-insurance clauses in the INA policy and the Guidant umbrella policy do not conflict. The coverage provided by Guidant’s umbrella policy should have come into play only after the exhaustion of applicable coverage under Guidant’s personal automobile liability policy and INA’s business automobile liability policy. Because the trial court erred as to this issue, on direct appeal, we reverse and remand for further proceedings consistent with this opinion.

¶ 38. As to the voluntary payor issue, this Court finds that the trial court erred in finding that Guidant’s participation in the settlement of all claims with the injured plaintiffs, the Andersons, barred Guidant from seeking contribution from INA.

¶ 39. As to the issue on cross-appeal, we find that the trial court erred in finding that INA was not entitled to reimbursement for certain reasonable and necessary defense costs. Therefore, we remand this issue to the trial court for further proceedings consistent with this opinion, for a factual determination as to which of INA’s costs incurred in the defense of Marshall County and the volunteer fire department in the case brought by the Andersons warrant reimbursement.

¶ 40. Accordingly, for the reasons stated, the final judgment of the Marshall County Circuit Court is reversed and this case is remanded to the Circuit Court of Marshall County for further proceedings consistent with this opinion.

¶ 41. ON DIRECT APPEAL: REVERSED AND REMANDED. ON CROSS-APPEAL: REVERSED AND REMANDED.

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

      . No parties asserted individual protection for Hingle pursuant to the Mississippi Tort Claims Act. See Miss.Code. Ann. §§ 11-46-1 to 11-46-23 (Rev.2002).

      . In actuality, INA initially brought a declaratory judgment action on the same issues in federal court in December 1997; however, in the end, after a dismissal of the federal court action, a removal of the state court action to federal court, and a remand back to stale court, the case finally ended up in the Marshall County Circuit Court.

      . Based on the $250,000-per-per-son/$500,000-per-accident limits under the policy, Guidant paid $250,000 to Sam Anderson and $50,000 to Ruby Anderson.

      .The parties initially sought appellate review of the trial court's orders in Cause No.2006CA-01472; however, this appeal was dismissed pursuant to Mississippi Rule of Appellate Procedure 42(b) inasmuch as an appeal had been taken from a nonappealable order. Thus, in due course the current appeal in No.2007-CA-01593 was consolidated with No.2006-CA-01472.

      . The trial court granted summary judgment in Titan’s favor, finding that Hingle was not an employee of Marshall County at the time of the accident, thus dismissing INA's claims against Titan, and no appeal was taken from this ruling. Therefore, Titan is not a party to this appeal.

      . The limits of the Guidant automobile policy issued to Hingle for bodily injury were $250,-000-per-person and $500,000-per-accident.

      . Citing Aetna Cas. & Sur. Co. v. Chicago Ins. Co., 994 F.2d 1254 (7th Cir.1993); Myers v. Burger King Corp., 618 So.2d 1123 (La.Ct. App.1993); Dalton’s Best Maid Prods. v. Houston Gen. Ins. Co., 855 S.W.2d 272 (Tex. Ct.App.1993); Allstate Ins. Co. v. Am. Hardware Mut. Ins. Co., 865 F.2d 592 (4th Cir. 1989); Dalton’s Best Maid Prods, v. Houston Gen. Ins. Co., 855 S.W.2d 272 (Tex.Ct.App. 1993); Home Ins. Co. v. Liberty Mut. Ins. Co., 678 F.Supp. 1066 (S.D.N.Y.1988); CNA Ins. Co. v. Hartford Ins. Co., 129 N.H. 243, 525 A.2d 722 (1987); State Farm Fire & Cas. Co. v. LiMauro, 103 A.D.2d 514, 481 N.Y.S.2d 90 (1984); Aetna Cas. & Surety Co. v. Beane, 385 So.2d 1087 (Fla.Dist.Ct.App.1980); Liberty Mut. Ins. Co. v. United States Fire Ins. Co., 590 S.W.2d 783 (Tex.Civ.App.1979); Grant v. N. River Ins. Co., 453 F.Supp. 1361 (N.D.Ind. 1978); see Towne Realty v. Safeco Ins. Co., 854 F.2d 1264 (11th Cir.1988). But cf. Liberty Mut. Ins. Co. v. Fireman’s Fund Ins. Co., 479 A.2d 289 (Del.Super.Ct.1983).


source: Caselaw Access Project

author: GRAVES, Presiding Justice,

license: Public Domain

text:
    Lisa EDMONDS and Larry Edmonds v. Edward A. WILLIAMSON, Individually and Edward A. Williamson, P.A., Michael Miller, George W. Healy, IV and George W. Healy, IV and Associates.

    No. 2007-CA-00751-SCT.
    Supreme Court of Mississippi.
    June 25, 2009.

      John J. Mueller, Joseph Wood Hutchinson, III, attorneys for appellants.
    John Benton Clark, Brandi N. Smith, Jackson, William T. May, Newton, William B. Carter, attorneys for appellees.
    Before GRAVES, P.J., LAMAR and KITCHENS, JJ.

      . George W. Healy, IV and George W. Healy, IV and Associates are not in fact parties to this action as they were never joined and no separate cause of action was ever pursued against them. However, the parties have designated them as parties on appeal and George W. Healy, IV has filed an appellate brief with this Court.

   GRAVES, Presiding Justice,

for the Court.

¶ 1. This case involves a dispute between the plaintiffs, Lisa Edmonds (“Edmonds”) and Larry Edmonds (together, the “Ed-mondses”), and the defendants, all of whom are attorneys, Edward Williamson (“Williamson”), Michael Miller (“Miller”), and George W. Healy, IV (“Healy”). The plaintiffs filed suit in Kemper County Circuit Court, asserting claims of legal malpractice against Williamson and Miller. The trial court granted summary judgment in favor of Williamson and Miller. Thereafter, the plaintiffs appealed to this Court. The plaintiffs also appeal from an order entered by the trial court regarding the plaintiffs’ dispute with Healy about their case file.

FACTS

¶ 2. The underlying dispute in this case arises out of the Phen-Fen products liability litigation in Williams v. American Home Products Corporation, Civil Action No.2000-207, in Holmes County Circuit Court. Lisa Edmonds was one of the claimants from Mississippi who was involved in this litigation. She retained Williamson to represent her in connection with the Phen-Fen litigation, entering into a representation agreement (the “Representation Agreement”) with Williamson and his firm, Edward A. Williamson, P.A., on November 17, 2000. The Representation Agreement set out the attorneys’ fees for the litigation, which increased as the litigation progressed through various stages. The Representation Agreement states, in relevant part:

COMPENSATION: In the event of any recovery had by, settlement obtained for, or payment made to the client(s) in connection with the above referred to claim or right of action, EDWARD A. WILLIAMSON, shall be entitled to and shall be paid a percentage of the gross proceeds in accord with the following schedule:
a. In the event of settlement prior to filing suit, the completion of mediation, or the initiation of arbitration ... 33 1/3%
b. In the event settlement is obtained after suit is filed, mediation is successfully completed, or arbitration is initiated, but before the time allowed for discovery, final pre-trial hearing or commencement of trial preparation, whichever is earlier ... 40%
c. In the event settlement is obtained after suit is filed, and after time permitted for discovery, final pretrial hearing or the commencement of trial preparation, whichever is earlier ... 45%
d. In the event that an appeal is taken by or on behalf of Client or any Defendant ... 50%

¶ 3. After a series of mediations and negotiations, Williamson, Miller, and Edward Blackmon (“Blackmon”), a Mississippi attorney, were able to reach a settlement agreement with American Home Products (“AHP”) after trial proceedings had begun for the Phen-Fen matter. The agreement is memorialized in a letter, dated April 24, 2001, from Helene Madonick, counsel for AHP, to Williamson, Miller, and Blackmon. The letter agreement stated in part that AHP would pay $55,000,000 to the Mississippi claimants to settle all their claims and that, in exchange, Williamson, Miller, and Blackmon would provide AHP with signed releases from each claimant. Thereafter, by order of the Holmes County Circuit Court, a Qualified Settlement Fund (“QSF”) was established on May 15, 2001. SunTrust Bank was designated to manage the QSF.

¶ 4. During the course of the negotiations between AHP and Williamson, Miller, and Blackmon, there developed a dispute between Edmonds and Williamson over whether Edmonds had authorized Williamson to settle her claims for $1,500,000 gross or $1,500,000 net. The dispute was resolved and, ultimately, the Edmondses received $1,504,319.77 net. In order to receive the settlement proceeds, the Edmondses signed a Confidential Release, Indemnity and Assignment with AHP on May 5, 2001.

¶ 5. On May 9, 2001, Edmonds and Williamson entered into an agreement (the “Agreement”) stating that Edmonds would pay Williamson attorneys’ fees in the amount of 45% of the gross settlement proceeds. This Agreement was signed by both Williamson and Edmonds and witnessed by Glinda “Kookie” Bowles, Donna Herrington, and Linda Holley. Also on May 9, 2001, Edmonds signed an acknowledgment (the “Acknowledgment”) stating that there would be “very substantial” expenses resulting from the Phen-Fen litigation. The Acknowledgment further stated that “[t]hree percent of the gross recovery for expenses ordered to be deducted from each settlement by the multi-district litigation authority” (the “MDL fee”) would be deducted from her settlement proceeds.

¶ 6. Sometime after signing the Agreement and the Acknowledgment, Edmonds became unhappy with the fact that Williamson was charging her attorneys’ fees in the amount of 45% and that the MDL fee had been deducted from her settlement proceeds. The record includes correspondence between Edmonds and Williamson illustrating Edmonds’ position regarding fees and expenses. On July 15, 2002, the Edmondses filed a complaint in Kemper County Circuit Court against Williamson and Edward A. Williamson, P.A. (together, the “Williamson Defendants”). In their complaint, the Edmondses alleged, in relevant part, that Williamson wrongly charged Edmonds attorneys’ fees in the amount of 45% and that Williamson wrongly allowed the MDL fee to be deducted. The Edmondses claimed that Williamson wrongly charged her the attorneys’ fees because she was not a named plaintiff in the Williams matter. They also asserted that Williamson wrongly allowed the MDL fee to be deducted because “[t]here is nothing in Ms. Edmonds’ contract with Mr. Williamson which authorizes deducting this 3% ... Ms. Edmonds has not seen any court order which authorizes deducting this 3% ... and it is not clear how the 3% was calculated or why Mr. Williamson feels that the 3% should be deducted from Ms. Edmonds’ share of the gross recovery.” The Edmondses argued that by, inter alia, charging Edmonds excessive fees, Williamson “breached his duty of care, breached his contractual obligations, or breached his duty of loyalty (fiduciary duty).”

¶ 7. Williamson subsequently filed an answer, and the parties proceeded to engage in extensive discovery. The Edmondses subsequently amended their complaint twice to specify a damages amount and to assert Larry Edmonds’ claims against the Williamson Defendants and to add Miller as a defendant. The Edmondses also filed a separate complaint against Miller on March 11, 2004. On February 26, 2003, Williamson filed a motion to dismiss or transfer, which the trial court denied on April 11, 2003. An interlocutory appeal was taken, and this Court affirmed the trial court’s decision on August 12, 2004. Williamson v. Edmonds, 880 So.2d 310 (Miss.2004). Following this Court’s decision, the parties continued to engage in discovery. On October 7, 2004, the Ed-mondses filed a motion to consolidate the cases against Williamson and Miller, which the trial court granted on October 13, 2004.

¶ 8. On August 16, 2005, the Williamson Defendants filed a motion for summary judgment arguing that Edmonds was contractually bound to pay the attorneys’ fees and to allow the MDL fee to be deducted and that her claims were barred by waiver and estoppel and accord and satisfaction. The Williamson Defendants also asserted that Larry Edmonds’ claims were merit-less because Larry was not Williamson’s client. Miller joined the motion for summary judgment on August 17, 2005. The Edmondses filed a response in opposition to summary judgment on August 26, 2005, claiming that the documents Edmonds signed do not constitute an enforceable contract and that, even if they do, they do not bar the Edmondses’ claims.

¶ 9. Meanwhile, on September 26, 2005, the Edmondses’ attorney, Healy, filed a motion to withdraw, which the trial court granted on October 6, 2005, following a hearing on the matter. The trial court granted the Edmondses 120 days to retain substitute counsel. The Edmondses were unable to retain substitute counsel within 120 days and sought and were granted additional time to do so. On March 30, 2006, the Edmondses’ new counsel filed a notice of substitution. In the meantime, on January 30, 2006, the Edmondses filed a motion to stay proceedings in this matter because of a dispute with Healy over their case file. The Edmondses claimed that Healy was required to give them their case file in its entirety, without charging the Edmondses for copying costs. Healy responded by filing a motion to determine file production and a response to the Ed-mondses’ motion to stay. Healy argued that the Edmondses had been given full access to their case file and to the copy machine at Healy’s law office. He further contended that the Edmondses had “most if not the entire file.” He added that the Edmondses had come to his law office on numerous times, sometimes spending eight to ten hours per day at his office reviewing and copying documents, and that on many occasions, they stayed overnight at a hotel or on Healy’s personal boat. On March 30, 2006, the Edmondses filed a motion to compel delivery of the case file. On July 31, 2006, the trial court entered an order addressing the dispute over the Edmonds-es’ case file, stating:

The Court does not believe that [Mississippi Rule of Professional Conduct 1.16(d) ] requires the former attorney to copy a client file for the client, nor does it require the attorney to totally turn over the file in which other clients have an interest. Therefore, this Court finds that the entire client file shall be made available to the Edmonds’ [sic] for inspection. Thereafter, the Edmunds’ [sic] or their representative may copy as much or as little of the file as they wish at their expense. Further, the Ed-monds [sic] are entitled to the return of any original papers and property they delivered to Mr. Healy and he may copy these items at his expense if he wishes to retain a copy.

¶ 10. On November 16, 2006, Miller’s counsel sent a letter to one of the Ed-mondses’ new attorneys, John J. Mueller (“Mueller”), suggesting six potential dates for the hearing on the motion for summary judgment. Mueller responded by letter on November 27, 2006, objecting to the setting of a hearing on the motion for summary judgment, but stating that January 26, 2007 would be the best date for the hearing, which the Edmondses’ new local counsel, Joseph W. Hutchinson, III (“Hutchinson”), would attend. The hearing for the motion for summary judgment was then set for January 26, 2007. On the morning of the hearing, Mueller faxed to the trial court a motion to continue the hearing because Mueller and the Ed-mondses were unable to reach Hutchinson to confirm his attendance at the hearing and because, as he stated in his letter of November 27, 2006, to Miller’s counsel, Mueller had a conflict. At the hearing, Williamson and Miller were present with counsel and the Edmondses and their counsel were absent. The trial court denied the Edmondses’ motion to continue the hearing as untimely filed. The Williamson Defendants then presented arguments regarding their motion for summary judgment. At the conclusion of the arguments, the trial court took the matter under advisement and, on March 19, 2007, the trial court granted summary judgment and entered a final judgment of dismissal on March 29, 2007. Thereafter, the Ed-mondses timely filed a notice of appeal.

ANALYSIS

¶ 11. The Edmondses appeal from both the trial court’s grant of summary judgment and its order regarding the motion to compel.

I. Whether the Trial Court Erred in Granting Summary Judgment.

¶ 12. This Court reviews a trial court’s grant of summary judgment de novo. See, e.g., United States Fid. & Guar. Co. v. Martin, 998 So.2d 956, 962 (Miss.2008) (citing Germany v. Denbury Onshore, LLG, 984 So.2d 270, 275 (Miss.2008)). When deciding to grant or deny summary judgment, a court must review the record before it and take all the evidence in the light most favorable to the non-moving party. Martin, 998 So.2d at 962 (citing Denbury Onshore, LLC, 984 So.2d at 275). The trial court’s decision to grant summary judgment will be affirmed if the record before, the court shows that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. Martin, 998 So.2d at 962 (citing Denbury Onshore, LLC, 984 So.2d at 275).

A. The Edmondses’ Claims Regarding Waiver, Estoppel, Release, and Accord and Satisfaction

¶ 13. The Edmondses argue that the trial court erred in granting summary judgment because their claims were not barred by waiver, estoppel, release, or accord and satisfaction. The first four issues raised on appeal are set out as follows:

Issue No. 1: Did the Edmondses waive the claims of lawyer malpractice, breach of contract, and breach of fiduciary duty they have asserted against Williamson?
Issue No. 2: Are the Edmondses es-topped from prosecuting the claims of lawyer malpractice, breach of contract, and breach of fiduciary duty they have asserted against Williamson?
issue No. 3: By signing the acknowledgment and separate agreement, did the Edmondses release the claims of lawyer malpractice, breach of contract, and breach of fiduciary duty they have asserted against Williamson?
Issue No. 4: By signing the acknowledgment and separate agreement, did the Edmondses enter into an accord and satisfaction with Williamson?

¶ 14. The Edmondses argue that the trial court erred in finding that they waived their claims against Williamson by accepting the settlement proceeds from AHP. They also contend that the trial court erred in finding that they were es-topped from asserting their claims against Williamson “[i]n the same circumstances as the trial court found that the Edmonds-es waived [their] claims.” They further assert that the trial court erred in finding that, by signing the Agreement and the Acknowledgment, the Edmondses had signed a release. Lastly, they argue that the trial court erred in finding that, by signing the Agreement and the Acknowledgment, the Edmondses had entered into an accord and satisfaction with Williamson.

¶ 15. The trial court granted summary judgment on several grounds. First, the trial court found that the Agreement and the Acknowledgment that Edmonds signed were enforceable contracts and that Ed-monds was, therefore, bound to the terms of those agreements. As stated above, after agreeing to settle with AHP and signing a Confidential Release, Indemnity and Assignment with AHP on May 5, 2001, Edmonds entered into two agreements with Williamson on May 9, 2001. She signed the Agreement, which explicitly states, in relevant part: “The Williamson Law Firm will see to it that LISA ED-MONDS receives $1,500,000.00 after applicable expenses as per the acknowledgment and attorneys’ fees in the amount of FORTY-FIVE PERCENT (45%).” Edmonds also signed the Acknowledgment, which explicitly states, in relevant part, that “[tjhree percent of the gross recovery for expenses ordered to be deducted from each settlement by the multi-district litigation authority” would be deducted from the settlement proceeds.

¶ 16. Second, the trial court granted summary judgment on the ground that Edmonds’ claims were barred because of waiver and equitable estoppel because she signed the Agreement and the Acknowledgment, which set out the terms of her acceptance of the settlement proceeds and then accepted the settlement proceeds. Third, the trial court granted summary judgment on the ground that the Agreement and the Acknowledgment satisfied the elements of accord and satisfaction, thus barring Edmonds’ claims against Williamson.

¶ 17. Although the Edmondses raise arguments regarding waiver, estoppel, release, and accord and satisfaction on appeal, they never challenge the trial court’s first ground for granting summary judgment. The Edmondses do not contest the fact that “the Acknowledgment and Agreement are valid and enforceable contracts, and ... the Plaintiff must abide by the terms contained in the agreements.” The Edmondses also do not dispute the fact that Edmonds signed these documents and do not otherwise question the trial court’s conclusion that Edmonds is, therefore, bound by these documents. Thus, even if the Edmondses were to prevail on their waiver, estoppel, release, and accord and satisfaction claims, the trial court’s decision to grant summary judgment would still stand on the ground that Edmonds is bound by the terms of the Agreement and the Acknowledgment, both of which the trial court found to be enforceable. Because the Edmondses do not raise the issue of the validity of these agreements for appellate review, this Court need not address it on the merits. See Trinity Mission Health & Rehab of Holly Springs, LLC v. Lawrence, No. 2008-CA-00027-SCT, — So.3d -, -, 2009 Miss. LEXIS 67, at * 13 (Miss. Feb. 12, 2009) (citing In re Hood ex rel. State Tobacco Litigation, 958 So.2d 790, 815 n. 17 (Miss. 2007); Collins v. Tallahatchie County, 876 So.2d 284, 286 n. 5 (Miss.2004)). Therefore, this Court finds that, regardless of the merits of the Edmondses’ first four claims, the trial court’s grant of summary judgment must be affirmed on the basis of its analysis of the enforceability of the agreements, which is not challenged by the Edmondses.

B. Larry Edmonds’ Claims Against Defendants

¶ 18. The Edmondses also claim that Larry Edmonds may pursue claims for malpractice and breach of fiduciary duty against the Defendants. They argue that Larry “may be able to establish” a lawyer-client relationship with Williamson despite never signing a representation agreement, that Larry “may also be able to establish ... breach of a duty” because the record is unclear as to whether Williamson advised Larry concerning a loss-of-consortium claim, and that Larry “may be able to prove that he suffered damages.” Williamson argues that Larry has no right to recover against him because he never entered into a representation agreement with Williamson and never asserted a claim against AHP.

¶ 19. This Court has held that claims of breach of fiduciary duty fall under claims of legal malpractice. See, e.g., Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1215 (Miss.1996) (citing Hartford Accident & Indem. Co. v. Foster, 528 So.2d 255, 285 (Miss.1988)) (“[L]egal malpractice may be a violation of the standard of care of exercising the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession similarly situated, or the breach of a fiduciary duty”). This Court has stated that, to recover in a legal malpractice action, the plaintiff must prove by a preponderance of the evidence: 1) the existence of a lawyer-client relationship; 2) negligence on the part of the lawyer in handling the client’s affairs; and 3) proximate cause of the injury. See, e.g., Lane v. Oustalet, 873 So.2d 92, 98-99 (Miss.2004) (citations omitted); Wilbourn, 687 So.2d at 1215 (citations omitted); Hickox v. Holleman, 502 So.2d 626, 633 (Miss.1987).

¶ 20. This Court finds that the record supports the trial court’s conclusion that Larry Edmonds cannot establish legal malpractice claims against Williamson or Miller. First, we address the issue of whether a lawyer-client relationship existed. In Williamson’s answer to the Ed-mondses’ first amended complaint, Williamson stated:

Larry Edmonds accepted and used the services of defendants and associated attorneys knowing that compensation was expected, so that a contract was implied for the payment of attorneys [sic] fees. It is admitted that defendants undertook to and did represent both Mrs. Ed-monds and Mr. Edmonds and undertook to settle Mr. Edmonds’ claim in connection with the underlying case as well [as] Mrs. Edmonds’ claim, both with the knowledge and consent of Mrs. Ed-monds and Mr. Edmonds.

Williamson further stated:

It is denied that the written contract of representation does not govern the relationship of Mr. Williamson and Mr. Ed-monds. A contract was implied for the payment of attorneys’ fees by Mr. Williamson [sic]. Under the circumstances, since the claim of Mr. Edmonds was derived from the claim of Mrs. Ed-monds, the implied contract was identical to the written contract of representation for the claim of Mrs. Edmonds, from which it was derivative. Further, Mr. Edmonds on or about May 5, 2001 or shortly thereafter, for a valuable consideration, executed a “Confidential Release, Indemnity and Assignment,” in which he affirmed that “No attorneys have a pecuniary interest in the settlement proceeds allocated to Claimant, other than the Claimant’s counsel, (emphasis added),” and further acknowledged that he had had the opportunity to confer with counsel about the sum to be allocated to him in settlement and related matters.

Therefore, based solely on this admission by Williamson, this Court finds that there was a lawyer-client relationship between Larry Edmonds and Williamson.

¶ 21. Nevertheless, Larry Ed-monds’ claims must fail because, even though a lawyer-client relationship may have existed and even if Larry Edmonds can prove that Williamson breached a duty owed to him, he cannot prove that he suffered any damages. On appeal, the Edmondses argue that “[i]f Larry Ed-monds establishes this [sic] his loss-of-consortium claim had a value, because Larry Edmonds received nothing on his claim, and the bar of the statute-of-limitations has now attached to this claim, Larry Edmonds may be able to establish that Williamson’s breach of duty proximately damaged Larry Edmonds.” Thus, Larry Edmonds alleges that he suffered damages because he did not receive any money for his loss-of-eonsortium claim. However, the record clearly reflects that SunTrust sent a check to the Edmondses, made out to both Lisa and Larry Ed-monds, in the amount of $1,504,319.77. The record also reflects that both Lisa and Larry Edmonds endorsed the back of the check. In consideration for this settlement amount, Larry Edmonds signed the Confidential Release, Indemnity, and Assignment with AHP.

¶ 22. Because the record clearly demonstrates that Larry Edmonds received money for his loss-of-consortium claim— the only claim he could have had, under the circumstances — taking the evidence in the light most favorable to the Edmondses, this Court finds that he cannot prove that he suffered damages. Since he cannot prove that he suffered damages, there is no genuine issue of material fact as to his claims against Williamson or Miller for legal malpractice, which must, as a matter of law, fail. After a de novo review of the record, this Court finds that the trial court properly found that Larry may not maintain legal malpractice claims against Williamson and Miller.

II. The Dispute Over the Case File

¶ 23. The Edmondses also raise four issues related to their dispute with Healy over their case file. The issues raised on appeal related to the Edmonds-es’ case file are set out as follows:

Issue No. 6: Do the Edmondses own the “case file” Healy created concerning Edmonds v. Williamson, or does Healy, the lawyer, own the “case file?”
Issue No. 7: If the Edmondses own the “case file” and if Healy wants to retain a copy of the file, do the Edmonds [sic] have to pay for the copy for Healy’s benefit or does Healy have to pay for the copy?
Issue No. 8: If the Edmondses own the “case file,” does Healy have a duty to provide all of the contents of the “case file” to the Edmondses or may Healy withhold “work product” or other documents?
Issue No. 9: During the course of representing the Edmondses in Ed-monds v. Williamson, Healy provided to the Edmondses copies of documents that form a part of the “case file.” If the Edmondses own the “case file,” does Healy have a duty to provide the Edmondses with a document if, in the course of the representation of the Ed-mondses, Healy previously provided the Edmondses with a copy of the document?

¶24. As stated above, in deciding the Edmondses’ motion to compel delivery of the case file, the trial court ordered Healy to make the Edmondses’ case file available to them in its entirety for copying at the Edmondses’ expense, to return any original papers or property that the Edmonds-es delivered to Healy, and to pay costs associated with copying any of the Ed-mondses’ original papers or property if he wished to retain a copy.

¶ 25. On appeal, the Edmondses argue that the trial court erred by entering this order because, as clients, their case file is their property. They further argue that the trial court erred by requiring them to bear the copying costs. They also maintain that Healy may not withhold any part of their case file, such as attorney work product. Lastly, they argue that Healy must produce their entire case file even if he previously gave them copies of portions of the documents in their case file.

¶ 26. Healy argues that the trial court’s order should be affirmed and that it was a reasonable, ethical, and practical solution to the dispute between himself and the Edmondses. Healy states that he does not have a separate client file for the Ed-mondses and that there is a single, unified case file for multiple clients. He therefore argues that he cannot practically or ethically turn over this entire unified file to the Edmondses. Healy claims that the duty of a withdrawing attorney to return the entire case file to the client is not absolute. He further maintains that it is ethical for an attorney to charge his client for copying costs.

¶ 27. The last two arguments raised by the Edmondses (issues eight and nine) are not properly before this Court at this time. While issues six and seven challenge the propriety of the trial court’s order, which this Court may review, issues eight and nine do not identify errors made by the trial court in its decision regarding the case file. Furthermore, there is no evidence in the record, and the Edmondses do not allege on appeal, that Healy has attempted to violate the trial court’s order by preventing them from accessing all of the documents in their case file, including attorney work product and documents previously copied and given to the Edmonds-es. Thus, these issues are premature and preemptive in nature, and thus not ripe for review. Cf. Thoms v. Thoms, 928 So.2d 852, 855 (Miss.2006) (finding that appellant’s claim that requiring him to submit to genetic testing violated his constitutional rights was premature and not ripe for review because appellant had not yet been required to undergo genetic testing); Tin-non v. Martin, 716 So.2d 604, 613 (Miss. 1998) (finding that defendants’ claim that Mississippi Rule of Evidence 503(f) is unconstitutional was not ripe for review because no trial level proceedings in the case had yet been held pursuant to Rule 503(f), but addressing the issue for reasons of judicial economy). Therefore, this Court does not address issues eight and nine.

¶ 28. We now turn to issues six and seven, which assert that the trial court erred in its order regarding the Edmonds-es’ case file. “The trial court’s grant or denial of a motion to compel is subject to an abuse of discretion standard of review on appeal.” Elec. Data Sys. Corp. v. Miss. Div. of Medicaid, 853 So.2d 1192, 1209 (Miss.2003) (citing Taylor Mach. Works, Inc. v. Great Am. Surplus Lines Ins. Co., 635 So.2d 1357, 1363 (Miss.1994)). Mississippi Rule of Professional Conduct 1.16(d) clearly states:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

Miss. Rules of Prof'l Conduct R. 1.16(d) (emphasis added).

¶ 29. In this case, the record indicates that the Edmondses have copies of a large portion, if not all, of their case file. Healy represents that, following his withdrawal, the Edmondses made as many as ten trips to his law office to review their file and to make copies of documents at Healy’s expense. At times the Edmondses stayed overnight in a hotel and, on some occasions, on Healy’s personal boat. Healy represents that the Edmondses also kept copies of all file materials that they considered important during the course of the litigation, that Healy provided the Ed-mondses copies of all of the depositions taken in their case, and that the Edmonds-es were in attendance at most of these depositions. The Edmondses do not dispute the fact that they copied the documents they wanted at Healy’s office on various occasions at his expense, that they are in possession of much of their case file already, or that they attended most of the depositions taken in their case. Also, Ed-monds admitted at the hearing for Healy’s motion to withdraw that most of the documents in the case file were duplicates.

¶ 30. Given the facts of this case, this Court finds that the trial court acted within its discretion when ordering Healy to provide the Edmondses access to the entire file for them to copy at their expense and when ordering Healy to return the original papers and property belonging to the Edmondses and to pay for the copying costs if he wished to retain a copy of their original papers or property. Under the circumstances, the trial court’s order comports with Rule 1.16(d) in that it requires Healy to do what is “reasonably practicable” in order to protect the Edmondses’ interest. See Miss. Rules of Profl Conduct R. 1.16(d). Therefore, the trial court’s order regarding the case file will be affirmed.

CONCLUSION

¶ 31. In their appeal, the Edmondses do not challenge the trial court’s conclusion that Edmonds is bound by the terms of the Agreement and the Acknowledgment. In addition, this Court finds that the trial court properly determined that Larry Edmonds could not maintain his claims against Williamson and Miller. Therefore, the trial court’s summary judgment is affirmed. Based on the facts of this case and Mississippi Rule of Professional Conduct 1.16(d), this Court finds that the trial court did not abuse its discretion in deciding the Edmondses’ motion to compel delivery of the case file. Therefore, the trial court’s order deciding the Edmondses’ motion to compel is also affirmed.

¶ 32. AFFIRMED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER, AND PIERCE, JJ., CONCUR. DICKINSON, J., NOT PARTICIPATING.

      . The Edmondses also received a check from SunTrust Bank for $14,242.96 in interest.

      . Although the Edmondses make this argument on appeal, the trial court did not find that the Edmondses waived their claims against Williamson by accepting the settlement proceeds. The trial court found that, by signing the Agreement and the Acknowledgment and thereby agreeing to pay the attorneys’ fees in exchange for her settlement, Edmonds had waived her right to her claims against Williamson.

      . Although the Edmondses make this argument on appeal, the trial court did not make a separate finding that Edmonds signed a release when she signed the Agreement and the Acknowledgment.

      .Although the Edmondses assert these claims on behalf of both Lisa and Larry Edmonds and argue that the trial court made findings as to both Lisa and Lariy Edmonds, the trial court made findings only as to Edmonds based on waiver, estoppel, and accord and satisfaction. The trial court made a separate finding as to Larry Edmonds' ability to assert claims against Williamson.

      . The following exchange took place at the hearing on the motion to withdraw:
      BY THE COURT: [Healy] has — in general language, he has an ethical obligation to turn over to you your entire, quote, file, whatever that may consist of. And I know George knows what his obligations are to a client from whom he withdraws from representation. And I’m sure he will do that, furnish your new attorney all of his file material. I would assume that is no problem.
      BY MR. HEALY: It will take a little while, I think, Your Honor. And Ms. Edmonds knows that I think we have well over 20,-000 documents.
      BY MRS. EDMONDS: But most of them are duplicates.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. William JONES.
    No. 13-395.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.
    John F. DeRosier, District Attorney— Fourteenth Judicial District, Christy Rhoades, Karen C. McLellan, Carla S. Si-gler, Assistant District Attorneys, Lake Charles, Louisiana, for State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, for William Jones.

      Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION and JOHN E. CONERY, Judges.
   GENOVESE, Judge.

Lin this domestic abuse battery case, the State appeals the trial court’s grant of Defendant’s Motion to Quash on the basis of double jeopardy. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On January 14, 2012, at 8:43 p.m., Defendant, William Jones, was arrested and jailed for domestic abuse battery by strangulation stemming from an altercation between him and his girlfriend in Sulphur, Calcasieu Parish, Louisiana. On January 16, 2012, at 2:30 p.m., some fifty-four hours later, the arrest warrant and bond was signed by District Court Judge David Rit-chie.

The arrest warrant and bond provided as follows:

WARRANT
STATE OF LOUISIANA
PARISH OF CALCASIEU
SPD COMPLAINT # C411200148
TO THE SHERIFF OR ANY OTHER PEACE OFFICER
WHEREAS, complaint has been made by sworn affidavit of: PO G. MARTIN THAT
WILLIAM JONES 192 N. CITIES SERVICE HWY # 14 SULPHUR, LA, B/M DOB: 05/12/1971, SSN: OLN: LA 10639749 on or about JANUARY 14, 2012 in the Parish and State aforementioned did unlawfully:
COMMIT LA RS 14:35.3B3 — DOMESTIC ABUSE BATTERY BY STRANGULATION — 10,000
Bond will be effective 48 hours after booking.
Conditions of Bond:[]
(1) No contact with victim. (2) No other criminal activity.
Now THEREFORE, you are hereby commanded in the name of the State of Louisiana to apprehend, arrest and bring the said accused to before the Court of competent jurisdiction to be dealt with according to law and let this be your warrant of arrest.
|2LET THE ACCUSED BE ADMITTED TO BAIL IN THE SUM OF $10,000 with good and solvent security to be approved by the Sheriff of said Parish.
YOU ARE COMMANDED TO NOTIFY THE DISTRICT ATTORNEY IN WRITING UPON ARREST.
Given under my official signature this 16th day of January, 2012, at 2:30 p.m.

/s/ DAVID A. RITCHIE JUDGE’S PRINTED NAME

JUDGE’S SIGNATURE

The State filed a bill of information charging Defendant with domestic abuse by strangulation. Thereafter, Defendant filed a Motion to Quash, alleging:

2.
Defendant, hereby files this Motion to Quash, pursuant to La.C.Cr.P.[ ]532(6) seeking an order of this Honorable Court dismissing the Bill of Information pending against the Defendant, with prejudice.
3.
The Fifth Amendment to the Constitution of the United States reads in pertinent part, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”.
4.
The Defendant’s Motion to Quash must be granted and the charges against him dismissed because he is facing double punishment for the same act, after being forced to serve two (2) days in jail without the possibility of bond by order of a sitting judge of the 14th Judicial District Court. (See Exhibit “A”).
5.
Any potential conviction and implication of sentence against defendant would be a second penalty for the alleged offense and thus unconstitutional and therefore the Court must grant the Defendant’s motion.

A hearing on the Motion to Quash was held before District Court Judge Ronald F. Ware on October 12, 2012. Defendant’s attorney argued that the “written designation” by Judge Ritchie on the bond, stating that the bond would be ^effective forty-eight hours after booking, was punishment by the government, and any other punishment by the government would constitute double jeopardy.

The State argued that, at the time Judge Ritchie set the condition of bond that bond would be effective forty-eight hours after booking, the forty-eight hours from booking had almost elapsed. Defendant did not spend any more time in jail than was allowable under La.Code Crim.P. art. 230.2(A); he did not suffer any harm or prejudice; and, no jeopardy had attached to this pretrial proceeding. The State further asserted that even if there was a statutory or constitutional violation, the remedy imposed, i.e., quashing of the bill of information, was legally impermissible. We note that Defendant’s remedy for a violation of La.Code Crim.P. art. 230.2(A) would simply be a release on recognizance and not a quashal of the bill of information.

The trial court granted the motion stating in pertinent part:

Well, this is what’s troubling me; well, a couple of things. Bond was set within 48 hours. Nobody denies that. And the condition of bail was that he not be allowed to be booked out 48 hours, and the 48 hours had expired.
Another thing is, I guess[,] it goes to the core of your argument, Mr. Dorsey — is has he been [sic] — is this a punishment, pretrial or based on a set of facts or a particular incident? I don’t know. Seems like it is to me. But for the 48 hours having been expired at the time he impose [sic] it, I guess, you know, we get back to the moot point. I mean—
Mr. Dorsey, what do you think about that? The 48 hours had passed. When this warrant was signed and bail fixed, he was eligible for release upon posting bail. Do you agree with that?
14And I was troubled by the fact that could Mr. Jones, could he have bonded out at the time that Judge Ritchie signed this paperwork? The answer is no.
2:30 p.m[.]? 6 hours and 13 minutes that he had to wait after this was signed before he’d be eligible for bail — well, not eligible for bail. He was set bail, but would be permitted or admitted to bail. That’s another 6 hours. And jail is not time out. Jail is jail.
He was denied bail without a hearing based on a particular set of circumstances, an incident that caused him to be arrested. It’s not something — it’s not anything else. It was the event that caused him to be arrested. And it was the event that was the basis, that same event, that was the basis for his detention past the 48 hours; not past the 48 hours but caused him to spend an additional six hours in jail. Had jeopardy attached, Mr. Dorsey?
No, but there is my concern that the State seeks to punish him twice. That was penal, in nature, to hold him for an additional six hours past the time that he should have been; and by law, bailable at 2:30 Monday....
8:43. [p.m.] At the time this was signed at 2[:]30 [p.m.], he should have been bailable immediately. But[,] he was not. I’m going to quash the information.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ASSIGNMENT OF ERROR

In its sole assignment of error, the State contends that the trial court erred in granting Defendant’s Motion to Quash on the basis of double jeopardy. We agree.

J¿LAW AND DISCUSSION

The State contends that it was permissible for the trial court to impose as a bail restriction a forty-eight hour “cooling[-]off” period, citing La.Code Crim.P. art. 335.1, and points out that this “cooling[-]off” period did not exceed the forty-eight hour period from the time of arrest, the statutory period in which a bond must be set under La.Code Crim.P. art. 230.2; therefore, Defendant did not suffer any injury or prejudice. The State further argues that even if the time to allow Defendant to bond out was unlawful, the remedy would not be a quashal of the charge. The proper remedy would have been for Defendant to file a supervisory writ contesting the bail restriction and/or denial, citing La.Code Crim.P. art. 343. Finally, the State asserts that Defendant being detained in jail “6 hours and 13 minutes” after his arrest warrant was signed before he could bond out did not constitute punishment; thus, there was no double jeopardy violation. The State contends, in pertinent part:

Instead of relying on the traditional double jeopardy element analysis, the defendant’s argument is that his pretrial detention for a period when bail was not available to him was punitive, such that punishment after a conviction would constitute double jeopardy. Under the defendant’s theory, any pretrial period of incarceration for an offense would bar subsequent prosecution, conviction, and imprisonment for the underlying crime. Such a result is absurd. It also flies in the face of two fundamental principles of double jeopardy illustrated supra: (1) for jeopardy to be implicated, the proceeding at issue must occur in a court; and (2) jeopardy attaches at a trial. Thus, in this case involving an out-of-court pretrial determination of probable cause to hold the defendant and a bail issue, there is no valid jeopardy claim which can be made.
The purpose of bail, and any conditions placed on it, is to ensure the defendant’s appearance at trial, and in some cases to protect the public or victim from the threat the defendant poses to them. LSA-C.Cr.P. Arts. 311, 334, & 335. Bail is not punitive in nature. Incarceration imposed after a criminal conviction is punitive, with its goals as retribution and deterrence. State v. Trosclair, 2011-2302 (La.5/8/12), 89 So.3d 340, 351 (internal citation omitted).

| (¡Defendant counters that the “cooling-off’ period ordered as part of bail is not authorized as a condition of bail and that it does not fall under La.Code Crim.P. art. 335, which allows a trial court to impose “any additional condition of release that is reasonably related to assuring the appearance of the defendant before the court.” Defendant contends that the “cooling-off’ period was not reasonably related to assuring the defendant’s appearance at a subsequent court proceeding.

Defendant further claims that this is not a case of denial of bail, but an imposition of an unauthorized bail restriction that violated Defendant’s constitutional right, that it exposed him to double jeopardy, and that the “cooling-off’ period constituted punishment. Defendant asserts, in pertinent part:

The State argues bail is not punitive in nature; therefore, the imposition of a mandatory forty-eight hours before bail could be posted was not punitive[] either. It is not disputed that bail is not punitive in nature. The condition imposed in this case, however, was punitive. Any jail sentence, of whatever length, imposed by a court, constitutes a punishment. In North Carolina v. Thompson, 349 N.C. 483, 508 S.E.2d 277 (N.C.1998), the North Carolina Supreme Court, in discussing the forty-eight hour pre-trial detention of a defendant accused of domestic violence, pointed out the statute permitting detention of up to forty-eight hours prior to appearance before a magistrate or judge
[did] not require pretrial detention or prescribe any minimum period of detention. Individuals charged with domestic violence might not be detained at all under the statute; they might be brought before a judge for a pretrial release hearing immediately following arrest. In such instances, no double-jeopardy concern arises because the arrestee, who has not been punished or detained under [the statute] suffers no “multiple punishment” upon subsequent criminal prosecution.
Thompson, 50[8] S.E.2d at 285. (Emphasis in original). The implication of the North Carolina Supreme Court, in that case, was that, if the statute had required a minimum period of pretrial detention, an arrestee would have been punished pretrial, and would suffer “multiple punishment” if subsequently prosecuted.
In this case, William Jones was required to serve at least forty-eight hours before he could become “bailable.” Thus, that 17forty-eight hours constituted punishment; and, as such, exposure to subsequent prosecution constituted double jeopardy.

In State v. Archield, 09-1116, p. 4 (La.App. 3 Cir. 4/7/10), 34 So.3d 434, 438, writ denied, 10-1146 (La.5/20/11), 63 So.3d 972, this court explained that “[b]oth the United States and Louisiana Constitutions prohibit double jeopardy; the imposition of multiple punishments for a single criminal act. See U.S. Const. amend. V; La. Const. art. 1, § 15. See also, La.Code Crim.P. art. 591.”

We have been unable to find any Louisiana cases addressing this particular issue. Consequently, we look to federal law and other states’ jurisprudence for guidance.

In Thompson, 508 S.E.2d 277, which is cited by Defendant in support of his position, the defendant was arrested for misdemeanor assault of his former domestic partner. He was brought before a magistrate. Because it involved domestic violence, the magistrate ordered that the defendant, following his arrest, be detained in jail for forty-eight hours before he was brought before a judge or magistrate to set his bond, pursuant to N.C.G.S. § 15A-534.1. The applicable version of N.C.G.S. § 15A-534.1 provided as follows:

(a) In all cases in which the defendant is charged with assault on or communicating a threat to a spouse or former spouse or a person with whom the defendant lives or has lived as if married, with domestic criminal trespass, or with violation of an order entered pursuant to Chapter 50B, Domestic Violence, of the General Statutes, the judicial official who determines the conditions of pretrial release shall be a judge, and the following provisions shall apply in addition to the provisions of G.S. 15A-534:
(1) Upon a determination by the judge that the immediate release of the defendant will pose a danger of injury to the alleged victim or to any other person or is likely to result in intimidation of the alleged victim and upon a determination that the execution of an appearance bond as required by G.S. 15A-534 will not reasonably assure that such injury or intimidation will not occur, a judge may retain the defendant in custody for a reasonable period of time while determining the conditions of pretrial release.
|s(2) A judge may impose the following conditions on pretrial release:
a. That the defendant stay away from the home, school, business or place of employment of the alleged victim;
b. That the defendant refrain from assaulting, beating, molesting, or wounding the alleged victim;
c. That the defendant refrain from removing, damaging or injuring specifically identified property;
d. That the defendant may visit his or her child or children at times and places provided by the terms of any existing order entered by a judge.
The conditions set forth above may be imposed in addition to requiring that the defendant execute a secured appearance bond.
(3) Should the defendant be mentally ill and dangerous to himself or others or a substance abuser and dangerous to himself or others, the provisions of Article 5 of Chapter 122C of the Gen-ei'al Statutes shall apply.
(b) A defendant may be retained in custody not more than 48 hours from the time of arrest without a determination being made under this section by a judge. If a judge has not acted pursuant to this section within 48 hours of arrest, the magistrate shall act under the provisions of this section.

In Thompson, the court noted that the “defendant spent almost forty-eight hours, including two nights, in jail without bond on three misdemeanor charges.” Id. at 280. The defendant challenged the North Carolina law as unconstitutional on its face and as applied to him on the basis of due process and double jeopardy violations. As to the argument that the statute violated double jeopardy on its face, the court held in pertinent part:

In his final facial challenge to N.C.G.S. § 15A-534.1(b), defendant contends that the statute violates the Double Jeopardy Clause of the Fifth Amendment because it permits individuals to be punished twice for the same offense. The Double Jeopardy Clause states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The clause protects against three distinct abuses: a second prosecution for the same offense after acquittal, a second prosecution for the same |9offense after conviction, and multiple punishments for the same offense. North Carolina v. Pearce, 895 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). Defendant asserts that he has been subjected to the third of these abuses here. He contends that when an individual is arrested on a charge of domestic violence and detained without a hearing under N.C.G.S. § 15A-534.1(b), he has been “punished” for purposes of double-jeopardy analysis. Thus, a subsequent criminal prosecution based upon the same conduct amounts to a “multiple punishment” for the same offense.
Contrary to defendant’s position, there are a number of circumstances under which the detention N.C.G.S. § 15A-534.1(b) authorizes does not raise double-jeopardy concerns. As discussed above, “the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment.” Salerno, 481 U.S. at 746, 107 S.Ct. at 2101, 95 L.Ed.2d at 708. When N.C.G.S. § 15A-534.1 is administered as intended, detentions thereunder are regulatory. See id. Thus, when an individual arrested upon an allegation of domestic violence undergoes regulatory detention under N.C.G.S. § 15A-534.1(b) for a brief period of time while awaiting the first available judge to hold a pretrial release hearing under N.C.G.S. § 15A-534.1(a), no double-jeopardy concern arises. Subsequent criminal prosecution of an arrestee who has been regulated, but not punished, does not expose the arrestee to “multiple punishments” for the same offense under established double-jeopardy principles.
Further, N.C.G.S. § 15A-534.1(b) does not require pretrial detention or prescribe any minimum period of detention. Individuals charged with domestic violence might not be detained at all under the statute; they might be brought before a judge for a pretrial-release hearing immediately following arrest. In such instances, no double-jeopardy concern arises because the ar-restee, who has not been punished or detained under N.C.G.S. § 15A-534.1(b), suffers no “multiple punishment” upon subsequent criminal prosecution.
We conclude that defendant has not satisfied his burden of “establishing] that no set of circumstances exists under which the [a]ct would be valid.” Salerno, 481 U.S. at 745, 107 S.Ct. at 2100, 95 L.Ed.2d at 707. N.C.G.S. § 15A-534.1(b) thus survives defendant’s facial constitutional challenge on double-jeopardy grounds.

Id. at 284-85 (emphasis added). The court did not address whether the defendant suffered a double jeopardy violation because it found that the defendant was denied due process.

| inHowever, following Thompson, the appellate court in North Carolina addressed a double jeopardy violation as applied to a defendant in a similar factual scenario as the present case. In State v. Gilbert, 139 N.C.App. 657, 535 S.E.2d 94 (2000), the defendant was arrested for the second degree kidnapping of his ex-girlfriend. When the defendant was arrested, the magistrate who initially processed the defendant mistakenly thought it was related to domestic violence and noted that the defendant was being held pursuant to N.C.G.S. § 15:A-534.1. Defendant appeared before the judge the next morning to have his bond set. The judge set the bond and ordered that the defendant not be released until 2:00 p.m. that afternoon. The opinion indicates that the panel on the court was under the impression the judge also thought N.C.G.S. § 15:A-534.1 applied. On appeal of his conviction, the defendant argued that he was illegally held without bond after his arrest, and he was denied his constitutional right to due process and his protection against double jeopardy. Quoting Thompson, the court found that N.C.G.S. “section 15:A-534.1 ‘survives defendant’s facial constitutional challenge on double-jeopardy grounds.’ Thompson, 349 N.C. at 496, 508 S.E.2d at 285.” Gilbert, 535 S.E.2d at 99. Additionally, the court addressed the double jeopardy claim as applied to the defendant, stating in pertinent part:

[Bjecause the detention was only to await hearing before the “first available judge,” defendant was not exposed to double jeopardy for the kidnapping charge. Similarly, we hold that the judge’s order requiring defendant to remain in custody until 2:00 p.m. as a condition of defendant’s release pursuant to section 15A-534.1(a) does not give rise to double jeopardy.

Id. at 101.

In U.S. v. Warneke, 199 F.3d 906 (7th Cir.1999), the defendants were indicted on racketeering charges. They were ordered into detention when arrested soon after the indictment was returned. No trial was held. The indictment was [^dismissed seventeen months later. Because the bill was dismissed on technical grounds that were easily curable, the judge ordered the defendants to remain in custody for a short time, not to exceed thirty days, pending return of a new indictment. When the new indictment was returned, the defendants had been in custody for seventeen months. The defendants moved to dismiss the indictment, claiming that their constitutional rights against double jeopardy were violated. They argued that the time spent in custody before the return of the second indictment was punishment; therefore, the double jeopardy clause prevented the government from punishing .them again. The defendants contended that the double jeopardy clause’s prohibition against multiple punishment applied even if a defendant has not been prosecuted.

The court held, in pertinent part:

In [Department of Revenue of Montana v.] Kurth Range [Ranch] [,511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) ], the defendants were convicted and sentenced after pleading guilty to drug charges. Later, the State of Montana sought to impose a drug tax on the defendants based on the same criminal conduct. The Supreme Court held that Montana’s drug tax was “the functional equivalent of a successive criminal prosecution,” 511 U.S. at 784, 114 S.Ct. 1987, and so the Court concluded that the double jeopardy clause precluded the imposition of the tax penalty after the underlying drug prosecutions were wrapped up.
The analytical approach employed in Kurth Ranch, which actually came from United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), was jettisoned in Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), but that’s the least of the defendants’ problems. The bigger problem is that Kurth Ranch did nothing to alter the “fundamental principle that an accused must suffer jeopardy before he can suffer double jeopardy.” Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). In Kurth Ranch the Supreme Court held that the imposition of a drug tax against a convicted defendant constituted a second punishment, but the Court never suggested that the tax would be prohibited absent the prior “attachment” of jeopardy. Similarly, if the tax had been levied prior to the drug prosecution, the Supreme Court would then have had to determine whether the taxing procedure resulted in the attachment of jeopardy.
| 12Pretrial detention does not trigger the attachment of “jeopardy” so as to invoke the protection of the Double Jeopardy Clause. See United States v. Grisanti, 4 F.3d 173 (2d Cir.1993). And, the statute authorizing pretrial detention, 18 U.S.C. § 3142, is remedial, not punitive. In United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), the Supreme Court held that detention pursuant to 18 U.S.C. § 3142(e) did not, on its face, even violate the Due Process Clause because it was not punishment. The focus of a pretrial detention hearing is to determine whether there are conditions of release that can reasonably assure the appearance of a defendant at trial and, at the same time, preserve the safety of the community. See 18 U.S.C. § 3142(g). The factors considered by the court in making these determinations center on risk of flight and danger, and not on the determination of guilt and punishment. “The legislative history of the Bail Reform Act clearly indicates that Congress did not formulate the pretrial detention provisions as punishment for dangerous individuals [but instead] perceived pretrial detention as a potential solution to a pressing societal problem.” Salerno, 481 U.S. at 747, 107 S.Ct. 2095.
The government agrees that pretrial detention may not be punitive. If an excessively long period of pretrial confinement exceeds due process limits, the defendants’ remedy is not a motion to dismiss, particularly not a motion to dismiss on double jeopardy grounds. It is to seek review of the detention order. The Bail Reform Act, 18 U.S.C. § 3141 et seq., allows a defendant to request reconsideration of his detention at any time. 18 U.S.C. § 3142(f) and 3145(b). This decision is in turn subject to review on appeal. 18 U.S.C. § 3145(c). See United States v. Infelise, 934 F.2d 103 (7th Cir.1991).

Id. at 907-08.

After reviewing Thompson and Gilbert, we find that Thompson does not support Defendant’s double jeopardy violation. Moreover, Gilbert is very similar to the facts in the present case in that the defendant was held in jail after his bond was set and the court found no double jeopardy violation. Additionally, as in Warneke, we find that pretrial detention does not trigger the attachment of jeopardy to invoke the protection of the double jeopardy clause. Furthermore, we find that the trial court’s action of holding Defendant six hours and thirteen minutes after 113bond was set, but within the forty-eight hour period set forth in La.Code Crim.P. art. 230.2, was not punishment, and we note that Defendant has offered no authority to support his assertion that it was punishment.

Defendant also argues in brief that the forty-eight hour “cooling-off’ period violates La.Code Crim.P. art. 335 in that it is not “reasonably related to assuring the appearance of the defendant before the court.” Even assuming, arguendo, that the “cooling-off’ period violates a defendant’s right to bail, the legal remedy for such a violation is set forth in La.Code Crim.P. art. 343, which states: “A person held may invoke the supervisory jurisdiction of the court of appeal on a claim that the trial court has improperly refused bail or a reduction of bail in a bailable case.” In the instant case, Defendant’s legal remedy was to apply for supervisory writs with the appellate court, not a dismissal of the charges by the trial court pursuant to its grant of Defendant’s Motion to Quash. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings.

DISPOSITION

The judgment of the trial court granting Defendant’s Motion to Quash is reversed, and the case is remanded to the trial court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

      . The "Conditions of Bond” were hand written by Judge Ritchie.

      . Louisiana Code of Criminal Procedure Article 230.2(A) provides, in pertinent part, that if a person is arrested without a warrant, the person cannot be held more than forty-eight hours from booking without a probable cause determination being made by a magistrate or judge.

      . Louisiana Code of Criminal Procedure Article 230.2(B) provides: "If a probable cause determination is not timely made ..., the arrested person shall be released on his own recognizance.”

      . In United States v. Simpson, 3:09-CR-249-D(06), 2011 WL 2880885 (N.D.Tx.7/15/11) (unpublished), the court cited Wameke to support its finding that jeopardy did not attach to pre-trial detention. The court also cites several federal cases to support its holding.