author: COLEMAN, Justice, KITCHENS, Justice,

text:
    Dr. Charles Ronald BRENT v. Vennit B. MATHIS, II, Individually and as Next Friend of Vennit B. Mathis, III and Alexa Mathis, Minors.
    No. 2013-IA-01074-SCT.
    Supreme Court of Mississippi.
    Nov. 6, 2014.
    Rehearing Denied Jan. 29, 2015.

      William Edward Ballard, Jackson, Michael J. Malouf, attorneys for appellant.
    Chuck McRae, Greta Lynette Kemp, Jackson, attorneys for appellee.
    Before DICKINSON, P.J., PIERCE and COLEMAN, JJ.
   COLEMAN, Justice,

for the Court:

¶ 1. Following his divorce, Vennit Mathis, individually and as next friend of his two minor children, sued Dr. Charles Brent for tortious interference of a marriage contract, alienation of affection, and reckless infliction of emotional distress. Dr. Brent moved for summary judgment on the children’s claims, but the trial coui't denied the motion. The Court granted Dr. Brent’s petition for interlocutory appeal.

Statement of the Facts

¶ 2. Vennit and Nicole Mathis married in October 2005; they had two children, Vennit B. Mathis III and Alexa Mathis. Vennit and Nicole divorced in August 2010, after Nicole had an affair with Dr. Charles Brent. Nicole and Dr. Brent met in December 2008 when Nicole saw Dr. Brent for neck pain. Dr. Brent performed a cervical diskectomy on Nicole in February 2009. Nicole had post-operative appointments with Dr. Brent in February and April, but she cancelled her May appointment. Dr. Brent got Nicole’s cell phone number from her patient records and personally contacted her about the cancelled appointment. Nicole and Dr. Brent began talking on the phone and exchanging text messages; they eventually met in person several times. They engaged in consensual sexual relations on two occasions. After the second encounter in the fall of 2009, they did not see each other again and communicated only sporadically.

¶ 3. In March 2010, Vennit discovered text messages from Dr. Brent in Nicole’s phone. Vennit left immediately after the discovery and pursued a divorce. The divorce was final on August 18, 2010. Ven-nit then sued Dr. Brent individually and as next friend of Vennit III and Alexa, alleging tortious interference with a marriage contract, alienation of affection, and reckless infliction of emotional distress. Dr. Brent moved for summary judgment on

the children’s claims. After a hearing, the trial court denied the motion. The judge let the parties discuss only standing at the hearing. The order denying summary judgment consisted of one sentence, thus, we do not have any insight into the judge’s rationale on any issues. The Court granted Dr. Brent’s petition for interlocutory appeal regarding the trial court’s denial of Dr. Brent’s motion for summary judgment as to the children’s claims.

Standard of Review

¶ 4. The Court reviews the trial court’s grant or denial of a motion for summary judgment de novo. Price v. Clark, 21 So.3d 509, 517 (¶ 10) (Miss.2009). Summary judgment should be granted “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 evidence is viewed “in the light most favorable to the party against whom the motion has been made.” Handy v. Nejam, 111 So.3d 610, 612 (¶ 4) (Miss.2013) (quoting Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 174-75 (¶ 14) (Miss.2009)). However, the party against whom the motion is made “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Miss. R. Civ. P. 56(e).

Discussion

¶ 5. Dr. Brent asserts that the trial court erred in denying his motion for summary judgment as to the children’s claims. He raises four issues: (1) whether the children have standing to bring alienation of affection claims; (2) whether the children failed to meet their burden of production on their alienation of affection claims; (3) whether the children should be allowed to proceed with claims of intentional infliction of emotional distress; and (4) whether the children’s claims of tortious interference with a marriage contract and reckless infliction of emotional distress should be dismissed because the claims do not exist under Mississippi law.

I. Whether the minor children have standing to bring claims of alienation of affection.

¶ 6. Dr. Brent asserts that the minor children’s claim that he alienated the affection of their mother fails as a matter of law because the children lack standing to bring such a claim. Questions .of standing are reviewed ele novo. Hall v. City of Ridgeland, 37 So.3d 25, 33 (¶ 23) (Miss.2010). “Mississippi’s standing requirements are quite liberal.... [P]arties have standing to sue ‘when they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, or as otherwise provided by law.’ ” Id. at 33 (¶ 24) (footnote omitted) (quoting Burgess v. City of Gulfport, 814 So.2d 149, 152-53 (¶ 13) (Miss.2002)). For plaintiffs to establish standing based on an adverse effect from the defendant’s conduct, the adverse effect suffered by the plaintiffs “must be different from the adverse effect experienced by the general public.” Hall, 37 So.3d at 34 (¶24) (citing Burgess, 814 So.2d at 153 (¶ 14)).

¶ 7. Dr. Brent argues that the children do not have standing, because only an aggrieved spouse has standing to bring a claim of alienation of affection. Vennit responds that alienation of affection can be used to protect the family unit, not just spouses. Dr. Brent maintains that the Court has never allowed minor children to recover against a third party for the alienation of their parent’s affections. The Court has never “allowed” minor children to recover because whether minor children have standing to bring alienation of affection claims regarding their parents is a matter of first impression.

¶ 8. Though whether children have standing for alienation of affection claims is an issue of first impression, the Court has enjoyed ample opportunity to develop its jurisprudence on the general tort over the years. The Court has written the following about alienation of affection: “where a husband is wrongfully deprived of his rights to the services and companionship and consortium of his wife, he has a cause of action against one who has interferred [sic] with his domestic relations.” Camp v. Roberts, 462 So.2d 726, 727 (Miss.1985) (internal citations omitted), overruled on other grounds by Saunders v. Alford, 607 So.2d 1214 (Miss.1992) (abolishing the tort of criminal conversation). In 2007, the Court refused to abolish the tort on public policy grounds “in the interest of protecting the marriage relationship and providing a remedy for intentional conduct which causes a loss of consortium.” Fitch v. Valentine, 959 So.2d 1012, 1020 (¶ 16) (Miss.2007).

Alienation of affections is the only available avenue to provide redress for a spouse who has suffered loss and injury to his or her marital relationship against the third party who, through persuasion, enticement, or inducement, cause or contributed to the abandonment of the marriage and/or the loss of affections by active interference.

Id. In every case considered by the Court, a husband or wife has brought the claim for alienation of affection.

¶ 9. However, Vennit argues that “some of the earliest recognitions of alienation of affection involve claims having nothing to do with extra-marital affairs,” but deal with intrusion into the family unit by an outside party. Vennit and the dissent cite the 1896 case of Tucker v. Tucker, in which a wife sued her father-in-law and the Court recognized his potential liability for intruding on his son and daughter-in-law’s marriage. The Court ultimately held that the father-in-law was not liable to his daughter-in-law for the alienation of his son’s affections if that alienation was prompted by parental concern. Tucker v. Tucker, 74 Miss. 93, 19 So. 955, 956 (1896). Vennit and the dissent cite Sivley v. Siv-ley, which dealt with payment of attorneys’ fees, but the underlying case on which the attorneys sought payment was a wife’s suit against her mother-in-law for alienation of her husband’s affection, in which the jury had awarded $30,000 to the daughter-in-law. Sivley v. Sivley, 96 Miss. 134, 50 So. 552, 552 (1909). Vennit and the dissent also cite McRae v. Robinson, in which a husband sued his in-laws for alienation of his wife’s affection. McRae v. Robinson, 145 Miss. 191, 110 So. 504, 505 (1926). Finally, Vennit cites a more recent case, in which a husband sued his wife’s employer for allegedly allowing her to engage in an affair with a coworker. Children’s Med. Group, P.A. v. Phillips, 940 So.2d 931, 932 (Miss.2006). Vennit argues that the above-cited “family intrusion” cases support his position that alienation of affection claims are not limited to spouses. We disagree. Although non-paramours were named as defendants, the party bringing the claim in each case was a spouse.

¶ 10. Vennit asserts that “Mississippi courts have not held that a claim of alienation of affection is specifically limited to a spouse injured through interference by a third party.” While Vennit’s statement is true on its face, the Court’s precedent supports that the tort exists to protect the marital relationship, not the familial relationship as a whole. See Bland v. Hill, 735 So.2d 414, 418 (¶17) (Miss.1999) (‘We believe that the marital relationship is an important element in the foundation of our society. To abolish the tort of " alienation of affections would, in-essence, send the message that we are devaluing the marriage relationship.”); Saunders v. Alford, 607 So.2d 1214, 1215 (Miss.1992) (“The purpose of a cause of action for alienation of affection is the protection of the love, society, companionship, and comfort that form the foundation of a marriage.... The right sought to be protected is that of consortium.”) (citations omitted). The Court has defined “loss of consortium” as follows:

The interest sought to be protected is personal to the wife [husband] and arises out of the marriage relation. She [He] is entitled to society, companionship, love, affection, aid, services, support, sexual relations!,] and the comfort of her husband [his wife] as special rights and duties growing out of the marriage covenant. To these may be added'the right to live together in the same house, to eat at the same table, and to participate together in the activities, duties and responsibilities necessary to make a home. All of these are included in the broad term, “conjugal rights.” The loss of consortium is the loss of any or all of these rights.

Kirk v. Koch, 607 So.2d 1220, 1224 (Miss. 1992) (quoting Tribble v. Gregory, 288 So.2d 13, 16 (Miss.1974)). The loss of consortium described in Kirk is personal to a husband and wife and does not contemplate children.

¶ 11. Vennit advances two arguments to persuade the Court to extend standing for alienation of affection to the children. First, he asserts that Mississippi allows for recovery by minor children for the “loss of affection or society of a family member” due to physical injury or death, and he draws a parallel between a child’s claim for alienation of his or her parent’s affection through the interference of a third party and a child’s claim for the loss of society and companionship under the Mississippi wrongful death statute. See Miss.Code Ann. § 11-7-13 (Rev. 2004). The parallel Vennit draws between a divorce and the death of a parent is misplaced. A minor child loses the affection and society of a deceased parent because that parent is no longer living and is, therefore, not even physically available for affection and society. A parent who has been paralyzed or otherwise significantly injured may be similarly unable to interact with and care for his child in the same manner as before the accident. By contrast, while divorce means that a child must interact with each parent at separate times and in separate homes, the parents are still available for affection, care, and society.

¶ 12. Second, Vennit argues that the courts traditionally have protected the family unit from any intrusion, and he claims that it is the court’s duty to “protect minors from the acts of others.” He asserts that a third party who knowingly interferes with a marriage and family recognizes that children will be damaged in addition to the marriage, and he claims that Dr. Brent knew of the impact that his actions would have on Nicole and her children. The Hawaii Supreme Court summarized the basis of Vennit’s claim in the 1979 case of Hunt v. Chang, where an ex-wife sued her ex-husband’s girlfriend for alienation of affection individually and as next friend of her minor son:

In short, society relies on the family to perpetuate itself, and the relational interests of the child in the family have been considered legally protectable interests. A child has a right to the support, care, training, and love of both of its parents, and these rights may be protected against interference by third parties.

Hunt v. Chang, 60 Haw. 608, 594 P.2d 118, 126 (1979) (citation omitted). Ultimately, however, the Hawaii Supreme Court “join[ed] the majority of jurisdictions in holding that a minor child does not have a cause of action for alienation of affections.” Id. at 127. See, e.g., Hale v. Buckner, 615 S.W.2d 97, 97-98 (Mo.Ct.App.1981); Whitcomb v. Huffington, 180 Kan. 340, 304 P.2d 465, 467-68 (1956); Taylor v. Keefe, 134 Conn. 156, 56 A.2d 768, 768-70 (1947); Morrow v. Yannantuono, 152 Misc. 134, 273 N.Y.S. 912, 914 (N.Y.Sup.Ct.1934).

¶ 13. Even if the Court recognized children as “beneficiaries” of their parents’ marriage, as Vennit seems to imply, the implications would stretch beyond standing to sue an enticing interloper. We find the Supreme Court of Hawaii’s discussion of the implications convincing. The Hunt Court wrote that the majority of courts, which had held that children did not have a cause of action for alienation of affection, had raised “numerous practical objections” about the alternative:

(1) Possibility of a multiplicity of suits ...; (2) Possibility of extortionary litigation, for this action, always susceptible to fraud, would become even more so by virtue of its numerical increase and the relative tenuousness of the child’s relationship; (3) Inability to define the point at which the child’s right would cease, inasmuch as the status itself hypothesizes mutability ...; (4) Inability of a jury adequately to cope with the question of damages, first, because injuries like that now under discussion are hard to measure in money and courts are averse to permitting the more or less conjectural awards based on mental suffering, and second, because damages thus assessed are apt to overlap, the number and ages of children ordinarily being noted in a parent’s action.

Hunt, 594 P.2d 118, 126 (Haw.1979) (quoting Nelson v. Richwagen, 326 Mass. 485, 95 N.E.2d 545, 546 (1950)).

¶ 14. Further, if allowed to bring alienation of affection claims, the children virtually become their parents’ pawns to seek revenge on a former spouse’s paramour. As the Supreme Court of Arkansas wrote with clarity in a similar case, “[c]ommon sense and some knowledge of the practical affairs of life inform us that six-year-old Nick Alvin did not initiate this suit.” Lucas v. Bishop, 224 Ark. 353, 273 S.W.2d 397, 398 (1954). In that case, Nick Alvin (through his father, Kenneth) sued his new stepfather for alienation of affection of his mother, Wilma. Kenneth had testified at his and Wilma’s divorce trial that Wilma was a good mother and, at the time of the suit, Nick Alvin lived with his mother and stepfather. The Court wrote: “The alienation for which compensation is now sought, therefore, is not Nick Alvin’s loss of his mother’s love; rather, it is the father’s loss of Wilma’s affection and their son’s supposed legal right to be reared in an atmosphere of reciprocal concern.” Id. at 398. The Arkansas Supreme Court affirmed the trial court’s grant of the stepfather’s motion to dismiss. Id. at 399.

¶ 15. Reviewing Mississippi’s century-long jurisprudence regarding alienation of affection, we conclude that the Court has always regarded the tort’s cause of action as one that is personal to the aggrieved spouse. Nothing in Vennit’s brief convinces the Court that the alienation of marital affections naturally results in the subsequent alienation of parental affections such that a minor child might have a cause of action against the lover of the straying spouse. Though standing requirements in Mississippi are indeed liberal, we hold that minor children do not have a “colorable interest” in the alienation of one parent’s affections toward the other, nor do they suffer an “adverse effect” from a defendant who is the cause of that alienation of marital affections. Hall, 37 So.3d at 33 (¶ 24) (quoting Burgess, 814 So.2d at 152-53 (¶ 13)). The minor children do not have standing for a claim of alienation of affection against Dr. Brent. Because we hold that the children do not have standing to pursue alienation of affection claims against Dr. Brent, we do not need to address Dr. Brent’s argument about whether they have met their burden of production to survive summary judgment. .

II. Whether the minor children’s claims for tortious interference with a marriage contract must be dismissed.

¶ 16. Dr. Brent contends that the children’s claim for tortious interference with a marriage contract must be dismissed as a matter of law because that claim does not exist in Mississippi. Vennit did not address the point in his brief. Dr. Brent is correct that Mississippi law does not provide for tortious interference with a marriage contract,, because Mississippi does not recognize marriage as a contract. “It was held long ago that ‘marriage itself, as a personal relation between the parties, is not a matter of contract within the meaning of the constitutional provision in reference to the inviolability of contracts.’ ” Germany v. Germany, 123 So.3d 423, 428 (¶ 12) (Miss.2013) (quoting Carson v. Carson, 40 Miss. 349, 351 (1866)). Recently, while considering an appeal from a trial court’s dismissal of a claim for tortious interference with a marriage contract, the Court of Appeals stated that “Mississippi has never recognized a cause of action for tortious interference with a marriage contract.” Carter v. Reddix, 115 So.3d 851, 856 (¶ 10) (Miss.Ct.App.2012). The Court of Appeals went on to say that it refused to “create a common-law cause of action for tortious interference with a marriage contract, because Mississippi already recognizes a cause of action for alienation of affection.” Id. The minor children’s claim for tortious interference with a marriage contract is dismissed because Mississippi does not recognize marriage as a judicially enforceable contract.

III. Whether the trial court erred in denying Dr. Brent’s motion for summary judgment and allowing the minor children to proceed with their claims of intentional infliction of emotional distress.

¶ 17. Like the claim for tortious interference with a marriage contract, Dr. Brent argues that the children’s claim for reckless infliction of emotional distress should be dismissed as matter of law because that claim does not exist in Mississippi. The plaintiff in Carter v. Reddix also asserted a claim for reckless infliction of emotional distress, and the Court of Appeals held that the claim was, in fact, a claim for intentional infliction of emotional distress (IIED), based on the language in the complaint and the elements of IIED. Carter, 115 So.3d at 858-59 (¶¶ 17-18). Still, the Court of Appeals declined to approach the merits of the issue because the claim had been properly dismissed as barred by the statute of limitations. Id. at 859 (¶ 18). In an ironic twist of fate, Ven-nit’s attorney was the plaintiffs lawyer in Carter. Id. at 853. As a result, the “Reckless Infliction of Emotional Distress” section of the complaint in Carter, which was quoted in that case, is identical to the language in Vennit’s complaint. Id. at 858 (¶ 16).

¶ 18. Vennit’s complaint alleged that Dr. Brent’s actions evoked “outrage and disgust in civilized society.” The terms are consistent with an IIED claim, as the Court has held that a plaintiff must prove that the defendant’s actions “evoke outrage or revulsion in civilized society.” J.R. ex rel. R.R. v. Malley, 62 So.3d 902, 906 (¶ 15) (Miss.2011). See also Adams v. U.S. Homecrafters, Inc., 744 So.2d 736, 742 (¶ 17) (Miss.1999) (defendant’s conduct “evokes outrage or revulsion, done intentionally”); Leaf River Forest Prods., Inc. v. Ferguson, 662 So.2d 648, 658 (Miss.1995) (same). Further, though Vennit does not address the issue of whether Mississippi recognizes reckless infliction of emotional distress, he refers to the children’s claim as one for IIED in his brief. The change in title from his complaint to his brief makes sense, given that Vennit’s attorney was also the attorney in Carter, which was handed down after the instant case was filed. Vennit filed his complaint in 2011, and the Court of Appeals handed down Carter in 2012. We consider the claim as one for IIED, as the Court of Appeals did in Carter.

¶ 19. Even viewing the claim as one for IIED, Dr. Brent asserts that the children’s claim cannot survive summary judgment because they have failed to produce sufficient evidence, and because their IIED claims are based on their mother’s consensual relationship with him. The party moving for summary judgment carries the burden of showing that no material fact exists and the non-moving party enjoys the benefit of the doubt regarding the existence vel non of a material fact. Monsanto v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss.2005). However, the non-moving party has his own burden to carry: he must establish the existence of the essential elements of his case. See Karpinsky v. American Nat’l Ins. Co., 109 So.3d 84, 89 (¶ 11) (Miss.2013); Buckel v. Chaney, 47 So.3d 148, 153 (¶ 12) (Miss.2010). Defendants who move for summary judgment “carry the initial burden of persuading the trial judge that no issue of material fact exists[,]” then the plaintiffs have “the burden of producing sufficient evidence of the essential elements” of their claims just as they would be required to “carry the burden of production at trial.” Karpinsky, 109 So.3d at 89 (¶ 13). Thus, the minor children here carry the burden of production on summary judgment, just as they would have carried the burden of production at trial.

¶ 20. At trial, the children would have to prove the following to succeed on their IIED claim: (1) Dr. Brent acted willfully or wantonly toward the children by engaging in an extramarital affair with Nicole; (2) Dr. Brent’s actions evoke outrage or revulsion in civilized society; (3) Dr. Brent directed his actions at or intended to harm the children; (4) the children suffered severe emotional distress as a direct result of Dr. Brent’s actions; and (5) such resulting emotional distress was foreseeable from Dr. Brent’s intentional actions. See J.R. ex rel. R.R. v. Malley, 62 So.3d 902, 906-07 (¶ 15) (Miss. 2011). See also Pierce v. Cook, 992 So.2d 612, 626-27 (¶43) (Miss.2008). The Court has held that “meeting the requisites of a claim for intentional infliction of emotional distress is a tall order in Mississippi.” Speed v. Scott, 787 So.2d 626, 630 (¶ 19) (Miss.2001) (quoting Jenkins v. City of Grenada, 813 F.Supp. 443, 446 (N.D.Miss. 1993)). The defendant’s acts must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Speed, 787 So.2d at 630 (¶ 19) (quoting Pegues v. Emerson Elec. Co., 913 F.Supp. 976, 982 (N.D.Miss.1996)).

¶ 21. The children have not satisfied the burden of production for their IIED claim such that they could survive summary judgment. First, they have not produced any evidence that Dr. Brent acted “toward” the children by maintaining an affair with their mother. Vennit asserts that Dr. Brent’s actions were “directed at the sanctity of the marriage as well as the sacred relationship of the family.” However, that is not the standard. The requirement is that Dr. Brent’s actions must have been directed toward the children, who must have personally suffered injury to bring the claim.

¶ 22. Second, looking at elements two and three of the tort, Vennit makes much of the “destruction” of the Mathis family unit because of the divorce. However, the Court is required to focus its analysis on the defendant’s conduct, not the plaintiffs reaction. “[I]t is the nature of the act itself — as opposed to the seriousness of the consequences — which gives impetus to legal redress.” Adams, 744 So.2d at 742 (¶ 17); Leaf River, 662 So.2d at 658. Ven-nit claims that Dr. Brent’s text messages to Nicole and his comments under oath were “more than outrageous and revolting; they are downright sickening.” True as that may be, the flaw in Vennit’s argument is that the comments were not directed at the children — the comments were directed at attorneys during his deposition, and the text messages were directed at Nicole, who presumably did not find them “outrageous or revolting,” as she chose to engage in the affair.

¶ 23. Third, the children were not deposed, and the record does not contain any information regarding counseling that they may or may not have undergone following their parents’ divorce. The only references in the record to the children’s alleged emotional distress are found in Vennit’s deposition. Vennit’s vague statements about his children being “all tore up” because of the “bad set of circumstances” simply do not reveal the severity of his children’s alleged emotional distress and, therefore, cannot satisfy the children’s burden of production to survive summary judgment. Even where cases of IIED have passed the summary judgment phase and gone on to trial, the Court has held that “two sentences out of the entire transcript offered in support of this claim [for mental anguish] are hardly enough evidence to support a verdict” of more than $3,000 in damages. Morrison v. Means, 680 So.2d 803, 807 (Miss.1996). Where a plaintiff testified about his lack of sleep and general worry at trial due to shoddy construction of his home, the Court similarly held that such “vague testimony ... was insufficient to support an instruction or award of damages for emotional distress.” Adams, 744 So.2d at 744 (¶ 22).

¶24. Finally, as to the last element, Vennit asserts that the children’s emotional distress “was foreseeable, as admitted by [Dr. Brent] in his own deposition.” Vennit cites the following exchange from Dr. Brent’s deposition:

Q: ... [Y]ou have seen how [an affair] can destroy the — and cause grievous mental and emotional distress?
A: Yes.
Q: And you also know that this can cause and have a problem with the kids involved in that marriage too, don’t you?
A: Yes.
Q: Where kids have both parents and live together and support and now the parents and the kids live in two different houses; it can cause that problem too?
A: A divorce can, yes.

Based on the above-quoted statements, Vennit argues that Dr. Brent knowingly caused severe emotional distress to the minor children, and he maintains that the above-quoted exchange from Dr. Brent’s deposition is enough to satisfy the burden of proof on summary judgment. Dr. Brent did acknowledge that an affair, generally, and a divorce may foreseeably result in the children having “problems.” However, at the time of the affair — the affair being the conduct that Vennit argues was outrageous and malicious and directed toward the children — Vennit III was three years old and Alexa was one or two years old. Dr. Brent did concede foreseeability of “problems” following a divorce, but the foreseeability of emotional distress — based strictly on the affair — to the children seems unlikely, given their ages at the time.

¶ 25. We hold that no genuine issue of material fact exists regarding the children’s claims for IIED. Though the summary judgment phase occurs before the start of the trial, non-moving plaintiffs still carry a burden of production for the elements of their claims. Karpinsky, 109 So.3d at 89 (¶ 13). In the instant case, the children have not produced sufficient evidence of the elements of their IIED claims. Therefore, the trial court erred in denying Dr. Brent’s motion for summary judgment on the children’s IIED claim.

Conclusion

¶ 26. We hold that the trial court erred in denying Dr. Brent’s motion for summary judgment on the minor children’s claims. Even though Mississippi’s standing requirements for civil lawsuits are quite broad, children in general simply do not have a colorable interest in alienation of affection litigation. Given that Mississippi does not view marriage as a judicially enforced contract, the children’s claim for tortious interference with a marriage contract is dismissed. Finally, the children have failed to produce sufficient evidence to support a claim of IIED. The trial court’s denial of Dr. Brent’s motion for summary judgment as to all of the minor children’s claims is reversed.

¶ 27. REVERSED AND REMANDED.

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

KITCHENS, Justice,

dissenting:

¶ 28. No law of this State precludes minor children from bringing, claims of alienation of affection against interlopers whose misconduct interferes with familial harmony. I would hold that the minor children in the present case have standing to pursue alienation of affection claims against Dr. Brent, and I respectfully dissent from the majority’s decision to the contrary.

¶ 29. My colleagues in the majority say that “[njothing in Vennit’s brief convinces the Court that the alienation of marital affections naturally results in the subsequent alienation of parental affections such that a minor child might have a cause of action against the lover of the straying spouse.” (Emphasis in original.) But those learned justices assume that the tort of alienation of affection is aimed only at protecting the marital relationship and not the family relationship as a whole. Of course, it is not the parental affection for the child which is lost when familial harmony is disrupted by a third party. It is the family unit, that children of the marriage are entitled to enjoy, which is damaged by the pernicious interloper. And those children, unjustly harmed by the diminution of familial affection, ought to have standing to bring alienation of affection claims against the party whose wrongful conduct proximately caused or contributed to the dissolution of the family.

¶ 30. It is true, as the majority posits, that “[i]n every case considered by [this] Court, a husband or wife has brought the claim for alienation of affection.” But this Court’s not having entertained the question previously does not foreclose our serious and open-minded consideration of the possibility that children also have standing to prosecute such a claim. Our early alienation of affection cases, in which this Court allowed relief where third parties had interfered with familial harmony, lend strong support to Vennit’s argument that children ought to have standing to bring claims against offenders who harm or destroy previously harmonious families.

¶ 31. One case to which Vennit points the Court is that of Tucker v. Tucker, 74 Miss. 93, 19 So. 955 (1896), in which this Court recognized a father-in-law’s potential liability for intrusion into the marriage of his daughter and son-in-law. The 1909 case of Sivley v. Sivley, 96 Miss. 134, 50 So. 552, 552 (1909), involved a jury verdict in favor of a wife for alienation of affection where it was proven that the wife’s mother-in-law had alienated her son’s affection for his spouse. Likewise, in McRae v. Robinson, 145 Miss. 191, 110 So. 504, 505, 507 (1926), a husband successfully sued his parents-in-law and other third parties for alienation of his wife’s affection, though the case was reversed on appeal because the jury had not been instructed that the actions of the third parties had to have been malicious. More recently, a case in which a husband sued his wife’s employer for alienation of affection where it was alleged that the employer “recklessly [had] allowed her and a coworker to engage in an extramarital affair in the workplace” survived the defendant’s motion to dismiss in the trial court. Children’s Medical Group, P.A. v. Phillips, 940 So.2d 931, 932, 936 (Miss.2006). This Court affirmed the trial court’s denial of the motion to dismiss: “We are unable to say, as a matter of law, that there are no possible facts which could result in CMG’s liability for alienation of affections.” Id. at 935.

¶ 32. This Court liberally has permitted spouses alleging alienation of affection to bring claims against third parties other than paramours. It never has limited such causes of action to paramours as defendants, but rather has recognized that any kind of intrusion into the marriage is actionable by the spouse who is alleged to have been robbed of the affection of his or her spouse. Yet today’s majority declines to recognize that children likewise affected by the intrusion of a third party into the family unit ought to have standing to bring suit for the alienation of familial affection. The majority acknowledges that “[a]l-though nonparamours were named as defendants, the party bringing the claim in each case was a spouse.” (Emphasis theirs.) The majority continues: “the Court’s precedent supports that the tort exists to protect the marital relationship, not the familial relationship as a whole.” I respectfully disagree, finding no prior decision of this Court precluding claims by children thus damaged. The majority’s exclusion of children strikes me as oddly harsh, as there is, in my mind, a sound and highly credible argument to be made that children often are the most innocent, the most vulnerable, and the most grievously injured victims of familial wreckage.

¶ 33. The Court, however, squarely has addressed cases in which parents sued to recover for the loss of the society, affection, and services of children, which are analogous to alienation of affection claims. In Ellington v. Ellington, 47 Miss. 329, 344, 1872 WL 6171 (1872), this Court considered “the wrong done the parent in the seduction of his child.” According to the Court, “[t]his form of action, was early accepted — grounded on the [ancient] idea that the daughter bore the relation of a servant to the parent; the declaration alleging, ‘per quod, servitum amisit.’ Id. The Court opined, “[t]he value of the society or services of a daughter consists very much in the innocence and purity of her person and character, and are greatly depreciated in consequence of her defilement, which not unfrequently occasions their total loss.” Id. at 353. Though the claim in Ellington was not one for alienation of affection, the loss of society or services of the daughter and the impact on the family of her defilement clearly were seen as actionable in Nineteenth Century Mississippi. To this day, that case has been neither overruled nor modified.

¶ 34. Similarly, more than fifty years later, in Stone v. Bang, 153 Miss. 892, 122 So. 95, 95, '96 (1929), a father sued a preacher who had seduced the man’s daughter and taken her to New Orleans, and this Court upheld a $2,000 verdict against the wicked vicar. But the majority finds “[t]hat case not relevant to the discussion,” since “[t]he claim was brought under a statute that specifically allowed parents to ‘bring an action for the seduction of a daughter.’” Id. at 95. I respectfully disagree, finding the case highly relevant to the discussion. The statute, consistent with the common law rule articulated in Ellington, made actionable any interference in the familial relationship between parents and a daughter. If parents could sue for the loss of the society or services of a child, then conversely the logic of the common law provides a child a cause of action for the intrusion of a third party into the family relationship.

¶ 35. As the majority notes, alienation of affection actions protect, among other things, “the right to live together in the same house, to eat at the same table, and to participate together in the activities, duties and responsibilities necessary to make a home.” Kirk v. Koch, 607 So.2d 1220, 1224 (Miss.1992) (quoting Tribble v. Gregory, 288 So.2d 13, 16 (Miss.1974)). The majority opines that “[t]he loss of consortium described in Kirk is personal to a husband and wife and does not contemplate children.” I disagree. Entitlement to sexual relations, of course, is a right exclusive to the marriage. But “society, companionship, love, affection, aid, services, support,” additionally constitute the rights to consortium contemplated in Kirk. They are not all, as the majority contended, “personal to a husband and wife.” The marital children share in many valuable familial rights. The loss or reduction of those familial rights, as in Ell ington and Stone, ought to be actionable by marital children.

¶36. While Mississippi has not previously addressed standing of children to bring claims of alienation of affection against a parent’s paramour, other courts have. The Appellate Court of Illinois held that the tort of alienation of affection “involve[s] the rights which all members of the family have a right to protect” and that “the State likewise has an interest in the sacredness of the family relationship.” Johnson v. Luhman, 880 Ill.App. 598, 71 N.E.2d 810, 812-13 (1947) (quoting Heck v. Schupp, 394 Ill. 296, 68 N.E.2d 464 (1946)) (emphasis added). That court continued: “As against the world at large a child has an interest in the relation (with his parents) because of the support he may expect. ... Also, he has an interest in the security and affection of the parent, at least while he remains in the household....” Johnson, 71 N.E.2d at 813 (quoting Roscoe Pound, Individual Interests in the Domestic Relations, 14 Mich. L.Rev. 177, 185 (1916)). Ultimately, the court there held the following:

Defendant’s conduct resulted in the destruction of the children’s family unit— that fortress within which they should find comfort and protection at least until they reach maturity — and deprived them of the unstinting financial support heretofore contributed by their father, as well as of the security afforded by his affection and presence.

Johnson, 71 N.E.2d at 814. See also Daily v. Parker, 152 F.2d 174, 177 (7th Cir. 1945) (“[A] child today has a right enforceable in a court of law, against one who has invaded and taken from said child the support and maintenance of its father, as well as damages for the destruction of other rights which arise out of the family relationship and which have been destroyed or defeated by a wrongdoing third party.”).

¶ 37. Additionally, the Supreme Court of Minnesota considered the question “whether a minor child has a cause of action against one enticing its parent from their family home to recover damages sustained as a result of the enticement.” Miller v. Monsen, 228 Minn. 400, 401, 37 N.W.2d 543 (1949). The court answered in the affirmative, stating that:

It is the foundation of civil society, sanctioned as such by both civil and ecclesiastical authority. It provides not only shelter, food, comfort, family life, happiness, and security for its members, but also instruction in, and example of, virtue, morality, and character. Not only the permanent welfare of the human race, but also the great advances of civilization, such as the elevation of woman to social equality, the education of children, the refinement of manners, the awakening of the finer things and subjugation of the gross in man, may be directly traced to it as, an institution. Human Society could not endure without it.

Id. at 402, 37 N.W.2d 543. The United States District Court for the Western District of Michigan held that “a child has legally protected rights in the maintenance of the family relationship against interference by outsiders, and that enticement by an outsider of the parent from the family home constitutes an invasion of the child’s rights, for which it may maintain an action for damages.” Russick v. Hicks, 85 F.Supp. 281, 285 (W.D.Mich.1949).

¶ 38. The majority, however, argues that “in Minnesota and Michigan, alienation of affection has since been legislatively abolished.” That may be so. But Miller did not involve an alienation of affection claim. • And in Russick, the court noted that the childrens’ suit “is not- the traditional alienation-of-affections suit — it is an action to recover damages for a direct wrong to the infant plaintiffs, that is, the wrongful invasion of their family relationships and the loss of the benefits therefrom.” Russick, 85 F.Supp. at 286. That court continued that it “is convinced that the above statute [abolishing the alienation of affection cause of action] did not abolish, and does not bar, the right of action asserted by the plaintiffs in the present case.” Id. at 287. The cases merely demonstrate situations in which other courts have allowed recovery to children on the basis of intrusion into the family. I find the authority persuasive to the extent that it establishes a sound, albeit minority, precedent for allowing children to bring claims against an interloper whose conduct resulted in familial discord.

¶ 39. The majority further opines that Vennit’s analogy of alienation of affection to the context of wrongful death is misplaced: “[a] minor child loses the affection and society of a deceased parent because that parent is no longer living and is, therefore, not even physically available for affection and society.” (Emphasis in original.) But, again, the majority’s distinction is based on the erroneous assumption that alienation of affection exists solely to protect the marital relationship, and not the familial relationship as a whole. I reject that premise. In the context of an alienation of affection claim, the family unit is dead, much like a deceased parent in the context of a wrongful death claim. The society and companionship of the family as a unit, and not merely that of the enticed parent, forever is lost.

¶ 40. This Court expressly has upheld the claim of alienation of affection: “[I]n the interest of protecting the marriage relationship and providing a remedy for intentional conduct which causes a loss of consortium, this Court declines the invitation to abolish the common law tort of alienation of affections in Mississippi.” Fitch v. Valentine, 959 So.2d 1012, 1020 (Miss.2007). The Court continued:

Alienation of affections is the only available avenue to provide redress for a spouse who has suffered loss and injury to his or her marital relationship against the third party who, through persuasion, enticement, or inducement, caused or contributed to the abandonment of the marriage and/or the loss of affections by active interference.

Id.

¶ 41. Alienation of affection is a common law tort, never enacted by the legislature, but judicially recognized by this Court as early as 1896 in the case of Tucker v. Tucker, 74 Miss. 93, 19 So. 955 (1896). See David Neil McCarty, Love in Vain: The Social Value of Mississippi’s Alienation of Affection in Protecting Marriage, 31 Miss. C.L.Rev. 107, 111 (2012) (“The first reported alienation of affections case rears its head in 1896, although it is clear from the text of the case that the tort was known even before that date.”) Since alienation of affection is a creature of jurisprudence, this Court is at liberty to expand it. See Yazoo & M.V.R. Co. v. Scott, 108 Miss. 871, 67 So. 491, 493 (1915) (quoting Western Union Telegraph Co. v. Allen, 66 Miss. 549, 6 So. 461, 463 (1889)) (“The courts then [that is, in the early history of English law], as the courts now, conscious of the needs of the public, expanded the principles of the law, [and] fitted them to the exigencies of the occasion....”) I advocate for an expansion of the common law tort of alienation of affection to include children and to protect not only the marital relationship, but also the important relationship of the family itself. An interloper’s misconduct adversely affects not only the wronged spouse, but also the children whose right to familial harmony and stability ought to be recognized and protected by the judicial branch of Mississippi’s government.

¶ 42. Because I would affirm the chancellor’s denial of summary judgment to Dr. Brent, I respectfully dissent.

CHANDLER AND KING, JJ., JOIN THIS OPINION.

      . Vennit III was five years old and Alexa was three years old when Vennit filed suit.

      . Dr. Brent’s motion for summary judgment includes only three paragraphs and a list of exhibits. It states that the reasoning for the motion is set out more fully in the memorandum brief, but the memorandum brief is not included in the record. The same is true of Vennit’s response in opposition to the motion.

      . Mississippi is among only six states that still recognize the common law tort of alienation of affection. See Fitch v. Valentine, 959 So.2d 1012, 1036 (¶ 83) (Miss.2007) (Dickinson, J„ specially concurring). The vast majority of states have legislatively or judicially abolished the cause of action. Id. at 1035-36 (¶¶ 78-82).

      . Vennit also cites Stone v. Bang, 153 Miss. 892, 122 So. 95 (1929), in which a father sued a preacher for seducing his teenage daughter and taking her away to New Orleans. The father did not bring a claim for alienation of affection. The claim was brought under a statute that specifically allowed parents to ''bring an action for the seduction of a daughter,” particularly for loss of services. That case is not relevant to the discussion. For the same reason, Ellington v. Ellington, 47 Miss. 329 (Miss. 1872), which is cited by the dissent, is not relevant to today’s discussion.

      . Although the tort of alienation of affection has been abolished entirely in most states, prior to its abolition, many states held that children did not have standing to bring claims of alienation of affection against third parties. See, e.g., Hale v. Buckner, 615 S.W.2d 97, 97-98 (Mo.Ct.App.1981); Hunt v. Chang, 60 Haw. 608, 594 P.2d 118, 127 (1979); Roth v. Parsons, 16 N.C.App. 646, 192 S.E.2d 659, 659 (1972); Whitcomb v. Huffington, 180 Kan. 340, 304 P.2d 465, 467-68 (1956); Henson v. Thomas, 231 N.C. 173, 56 S.E.2d 432, 434 (1949); Taylor v. Keefe, 134 Conn. 156, 56 A.2d 768, 768-70 (1947); Morrow v. Yannantuono, 152 Misc. 134, 273 N.Y.S. 912, 914 (N.Y.Sup.Ct.1934). Of the states cited here, only Hawaii or North Carolina have not abolished alienation of affection. Fitch, 959 So.2d at 1036 (¶ 83). We have located cases from only two states in which the courts held that children could bring claims of alienation of affection: Illinois and Michigan. Rudnick v. Vokaty, 84 IlI.App.3d 1003, 40 Ill.Dec. 404, 406 N.E.2d 105, 107-108 (1980); Russick v. Hicks, 85 F.Supp. 281, 284 (W.D.Mich.1949). In Minnesota, although the claim was not for alienation of affection, the supreme court affirmed a verdict in favor of a six-year-old, who sued to recover damages sustained after her mother was enticed away from the family home. Miller v. Monsen, 228 Minn. 400, 37 N.W.2d 543, 545 (1949). Minnesota and Michigan have legislatively abolished alienation of affection as between spouses. See Mich. Comp. Laws Ann. § 600.2901 (1961) and Minn.Stat. Ann. § 553.01 (1978). Illinois has limited the damages that can be recovered "to the actual damages sustained” from the alleged alienation of affection. 740 Ill. Comp. Stat. Ann. 5/2 (1990). See the discussion in Fitch v. Valentine, 959 So.2d 1012, 1035-36 (¶¶ 78-82) (Miss.2007) (Dickinson, J., specially concurring).

      . "Whereby he lost the services (of his servant).” Black's Law Dictionary 1323 (10th ed. 2014).

      . According to Stone, that statute was "section 720, Code of 1906 (Section 514,' Hemingway's 1927 Code).” Stone, 122 So. at 95. The current version of this statute is Mississippi Code Section 11-7-11 (Rev. 2004) ("A parent may bring an action for the seduction of a child, although such child be not living with nor in the service of the plaintiff, and though there be no loss of service....")


source: Caselaw Access Project

author: DICKINSON, Presiding Justice, KING, Justice,

license: Public Domain

text:
    Cheri W. HEFLIN v. Stephen MERRILL and/or the Estate of Stephen Merrill and Nationwide Insurance Company.
    No. 2012-CT-00663-SCT.
    Supreme Court of Mississippi.
    Nov. 6, 2014.
    Rehearing Denied Jan. 29, 2015.

      Nicholas Van Wiser, Biloxi, Matthew G. Mestayer, attorneys for appellant.
    Jeremy Dale Hawk, James Leroy Banks, IV, Jackson, William L. McDon-ough, Jr., Biloxi, Nicholas Kane Thompson, Hattiesburg, attorneys for appellees.
   ON WRIT OF CERTIORARI

DICKINSON, Presiding Justice,

for the Court:

¶ 1. The plaintiff in this automobile-accident lawsuit sued her underinsured-motorist insurance carrier. Even though the UM carrier admitted liability and agreed to pay any damages awarded at trial that exceeded available liability coverage, the plaintiff insisted on informing the jury of the insurance company’s status as a defendant. The trial judge refused to allow it. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Stephen Merrill crashed into the back of Cheri and Mike Heflin’s automobile. Cheri sued Merrill’s estate and her underinsured-motorist carrier, Nationwide Insurance Company. Before trial, Nationwide admitted liability and offered to stipulate in writing that Cheri was an insured under its policy, and that it would be responsible for payment of a final judgment in .excess of Merrill’s liability coverage. Nationwide then moved to exclude any reference before the jury to its role, and to exclude any evidence that Cheri’s car had underinsured motorist coverage. The trial granted the motion, finding that

[wjhether or not UM coverage exists is not relevant. And it’s the court’s opinion that introducing- that issue along with the existence of Nationwide Insur-anee Company to the jury would potentially prejudice that jury as to a determination of damages.

¶3. During the trial, the judge sustained two defense evidentiary objections to Merrill’s statement about being sorry for the accident and Mike’s opinion about how fast Merrill’s car was going.

¶ 4. Mike was prepared to testify that after the accident Merrill said, “God, I’m sorry, it was my fault.” The defense made a hearsay objection and the trial judge ultimately sustained the objection. The trial judge acknowledged that the statement was not hearsay but still excluded it, because “the person who made the statement is now deceased and [ ] the defendant has admitted liability, I feel the statement, if introduced to the jury, will serve only to inflame and confuse as to the issues.”

¶ 5. Mike also was prepared to give his opinion of Merrill’s speed before the accident. The plaintiff argued that Mike was uniquely qualified to give this lay opinion based on his “experience in [ ] dealing with wrecks in the past in the process of pursing claims in his role as a Nationwide auto insurance agent,” and as a result of the “many wrecks he’s been involved in and how many claims he’s filed.” The trial judge also excluded this testimony.

¶ 6. After the jury awarded Cheri $32,-500 — well under Merrill’s liability policy limits — Cheri filed a motion for a new trial or additur. The trial court denied the motions.

¶ 7. Cheri appealed, arguing that the trial court erred by not disclosing Nationwide’s identity, sustaining the two eviden-tiary objections, and not granting the post-trial motions. The Court of Appeals affirmed, finding that “there was no reason for the jury to consider the Nationwide UM policy,” and “[ajdmitting such evidence could only serve to possibly inflate or deflate a verdict or confuse the jury.” Because the issue of revealing a UM carrier’s role as a defendant and involvement in a case has been the subject of debate among the bench and bar, we granted certiorari to address the issue along with the other evidentiary rulings and denial of the post-trial motions.

ANALYSIS

¶ 8. The main issue presented is one of first impression in Mississippi. There is debate among members of our Bar as to whether informing the jury of an uninsured-or underinsured-motorist carrier’s role as a party is required, and whether the fact of that role is evidence, or simply a matter within the purview of a trial judge in controlling the courtroom and trial. We hold that it is both.

I. The trial court properly excluded Nationwide’s identity and role in the trial.

¶ 9. This Court reviews a trial court’s exclusion of evidence under an abuse-of-discretion standard, and where we find a trial court has erred, we will not reverse unless the error adversely affects a party’s substantial right.

A. Purpose and Relevance of Nationwide’s Role

¶ 10. To be admissible in its role as evidence, the fact of Nationwide’s role in this case required some demonstration of relevance. Evidence is relevant only where it has a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be ■without the evidence.”

¶ 11. The admissibility of all evidence begins with an examination of its purpose. We are unable to discern the purpose or relevance of Nationwide’s role, and it is noteworthy that Cheri suggests no purpose or theory of relevance for us to analyze. Indeed, where insurance is concerned, our rules of evidence provide that “[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully.” And it is “well established in this state that evidence of insurance or lack thereof may not be presented at a trial to show who would have to pay the judgment.” For example, we have held that an uninsured defendant is prohibited from telling the jury that he or she lacks insurance and would have to pay any judgment.

¶ 12. We agree with the view of the Supreme Court of New Jersey that, “in the context of a [underinsured motorist] trial, in which the circumstances of the underlying accident are the focus, ... the insurer’s identity is ordinarily irrelevant,” and “[w]hether the jury knows the under-insured motorist insurer’s identity should have no impact on its evaluation of the extent of the plaintiffs injuries.” This reasoning is highly persuasive. Other courts, including those in Virginia, have followed New Jersey’s approach under similar circumstances.

¶ 13. The only issue in this case was the amount of Cheri’s damages. We see no reason for the jury to be informed of Nationwide’s role as Cheri’s underinsured motorist insurer. This information would have been of no help in deciding the issues before the jury; indeed, the trial judge would have risked a mistrial by allowing the plaintiff to use insurance to prove the defendant’s negligence.

¶ 14. We find Nationwide’s role in this case — insofar as the jury was concerned — was irrelevant. And, although irrelevant evidence occasionally finds its way into the record, it is never admissible under the Mississippi Rules of Evidence.

B. Application of the Rule 403 Balancing Test to Nationwide’s Role

¶ 15. Even if Nationwide’s role had some minimal theory of relevance, it nevertheless properly would have been excluded under Rule 403, which requires exclusion of relevant evidence

if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

f 16. We agree with the New Jersey court’s finding that informing the jury that a party provides underinsured motorist coverage on the plaintiffs car actually “increase[s] the risk of jury confusion[,] because the jury would first be told that the defendant is an insurer, but would then be advised that this is irrelevant and should play no role in their evaluation of the claim.”

C. Judges’ Control Over the Trial

¶ 17. The plaintiff also argues that it was “inherently unfair” for the jury not to know of Nationwide’s role in the litigation. The trial judge found nothing unfair about it. This Court has “unflagging support” for a trial judge’s power to control the progress of a trial. The trial judge was well within his discretion in finding that identifying Nationwide as party would disrupt the trial on Cheri’s damages and create confusion for the jury. As stated, trial judges have the authority, power, and responsibility to prevent confusion and undue prejudice.

¶ 18. The plaintiff correctly points out that our views are in disagreement with those of the Supreme Court of Florida, which holds that full disclosure of a under-insured motorist company’s identity at trial “protects the integrity of the jury system and prevents charades at trial.” But having made this bold statement, the Florida court fails to explain how or why the jury system’s integrity depends to any degree on informing the jury of information it is prohibited from using in its deliberations. And as a dissenting justice on that same court noted, “such disclosures creates a substantial risk of unnecessarily shifting the jury’s attention to insurance details where there are no insurance issues to be decided by the jury.”

¶ 19. In short, the Florida approach creates the very real danger that juries will return “insurance verdicts,” and this danger is exactly what Mississippi Rule of Evidence 411 was designed to guard against. Identifying Nationwide as a party at trial would have been a backdoor attempt to use insurance to inflate the jury’s verdict; not decide the issue of Cheri’s damages.

¶ 20. Contrary to the dissent’s view, the trial court was not compelled by Mississippi Rule of Civil Procedure 10(a) to disclose Nationwide’s identity in the case. That rule, which does no more than to govern the style of a pleading, says nothing about informing the jury of anything. Indeed, rare is the case in which a complaint is presented to a jury as an exhibit.

¶ 21. The plaintiff suffered no prejudice here. Her right to bring claims against her underinsured motorist carrier and name the underinsured motorist carrier as a party under Mississippi Rules of Civil Procedure 18, 19, and 20, and Mississippi Code Section 83-11-105 were protected; but those rights do not amount to carte balance license to use the insurer’s identity to increase the jury’s verdict. The issue in this case is about relevance; and here, Nationwide’s identity lacked any.

II. The trial judge committed no other reversible error in sustaining the two evidentiary objections and denying the post-trial motions.

¶ 22. Finally, we will briefly address Heflin’s other three issues. First, as to Merrill’s statement about being sorry for causing the accident, we are unable to find that the trial judge abused his discretion by excluding this evidence under Mississippi Rule of Evidence 403. The trial court correctly recognized that the statement was not hearsay under Mississippi Rule of Evidence 801(d)(2) because it was a statement offered against a party opponent. But, because the only issue at trial was Cheri’s damages, the trial judge was well within his discretion to exclude the statement as being unduly prejudicial.

¶ 23. Second, as to Mike’s opinion about the speed of Merrill’s vehicle, the trial judge again was well within his discretion to exclude this testimony. Mississippi Rule of Evidence 701 provides in essence that “lay witness opinion [is limited] to those opinions or inferences which are rationally based on the perception of the witness and helpful to the clear understanding of his testimony or the determination of a fact in issue.”

¶ 24. When Mike was asked about seeing Merrill’s car before the accident, he testified he “glanced back and glanced in [his] rearview mirror ... [a]nd it was just a glance just before it happened.” Given this testimony, he appropriately was allowed to give his lay opinion that Merrill’s car “was barreling ■ down on top of us.” But allowing him to give the jury his opinion about the exact speed at which Merrill’s vehicle was traveling would have elevated his role from lay witness to that of an expert.

¶ 25. In an attempt to bolster Mike’s qualification to give a lay opinion about speed, the plaintiff cited Mike’s experience as an insurance agent. But Rule 701 prohibits lay opinions that are based on special training and knowledge. A lay witness’s unique qualifications have no bearing on the witness’s ability give a lay opinion. Ultimately, the speed of Merrill’s vehicle was a fact for the jury to determine.

¶ 26. Because we find no error in the trial court’s rulings on any of the eviden-tiary issues in this case, we find there was no cumulative error warranting a new trial or an additur; and that the trial judge did not abuse his discretion in denying the plaintiffs post-trial motions.

CONCLUSION

¶ 27. We hold as a matter of first impression that, in Mississippi, the proponent of evidence of the role of an uninsured-or underinsured-motorist carrier’s role in litigation over benefits due under the policy as a result of a tortfeasor’s negligence must demonstrate the relevance of the evidence and that it passes Rule 403’s balancing test. Because the plaintiff in this case' has failed to do so, we affirm the judgments of the trial court and the Court of Appeals. The trial judge committed no error in this case by excluding any reference to Nationwide and the other evidentiary rulings.

¶ 28. AFFIRMED.

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

KING, Justice,

dissenting:

¶ 29. Because I disagree that the mere identity of a party who participates in a trial is “evidence” subject to exclusion, and because I believe that the trial court in this case erred by excluding the identity of a defendant who participated in the trial, I respectfully dissent.

¶ 30. This appeal stems from a motion in limine filed by Nationwide, requesting that the court exclude “any reference or comment before the venire or jury related to the insurance policy issued by Nationwide Insurance Company made the subject of this matter, and to exclude any evidence of the same.” (Emphasis added.) Nationwide maintained that it had “offered to stipulate that the policy ... was in full force and effect at the time of the subject accident and that [Nationwide] will be responsible for payment of any final judgment in excess of the liability coverage limit” of Merrill. It argued that the existence of the policy had no relevance to any issue decided by the jury. At the hearing on the motion, Nationwide argued that, in order to implement its motion, no mention of Nationwide whatsoever could be made at trial. According to Nationwide, it “would simply come off the pleadings. It would not be there. Then it would be a suit reflecting the true dispute, that being the amount of damages that the plaintiff is entitled to.... [T]he jury would not need to know why Nationwide is here because there would be no appearance that Nationwide was in fact here.” Nationwide argued that its participation at trial could be explained as Merrill simply having two lawyers, and stated that counsel for Nationwide would examine two of the expert witnesses on behalf of the defense. The court granted Nationwide’s motion in li-mine, preventing any mention of the “existence” of Nationwide during trial. It found that, in light of the facts that liability was admitted and Nationwide had admitted that the Heflins were covered by their UM policy, only the extent of Heflin’s injuries was relevant at trial and that making Nationwide’s existence in the lawsuit known to the jury would prejudice it.

¶ 31. At trial, counsel for Nationwide participated in a videotaped deposition of the defense expert that was played for the jury. Counsel for Nationwide also conducted the voir dire of one of Heflin’s expert witnesses, and also conducted the cross-examination of that expert. The cross-examination by counsel for Nationwide filled approximately sixteen pages of the transcript of the trial.

¶ 32. At trial, Heflin introduced evidence that her out-of-pocket medical bills were approximately $40,000 and that she anticipated approximately $100,000 in future medical bills. She also claimed damages for pain and suffering. She ultimately requested that the jury award her damages totaling approximately $200,000. The jury returned a verdict in favor of Heflin in the amount of $32,500, and the trial court entered a judgment on the jury’s verdict. Heflin filed a motion for judgment notwithstanding the verdict (JNOV), or in the alternative, for additur, or new trial. The trial court denied the motion, and Heflin appealed.

¶ 33. A divided Court of Appeals affirmed the trial court. The Court of Appeals held that the trial court was within its discretion “to exclude Nationwide’s policy because the parties stipulated that Nationwide would be responsible for any amount not covered by Allstate up to Hef-lin’s policy limits. Additionally, liability was not an issue in the case.... Admitting such evidence could only serve to possibly inflate or deflate a verdict or confuse the jury.” Heflin v. Merrill, 154 So.3d 887, 891, 2013 WL 5614290 at *3 (Miss.Ct.App. Oct. 15, 2013). It concluded, then, that “the Nationwide policy was properly excluded.” Id. (emphasis added). In his dissent, Judge Griffis, joined by three other judges, argued that the issue of excluding any mention of Nationwide, despite its status as a party to the lawsuit, was not an evidentiary issue, but a procedural issue. The dissent concluded that the trial court erred by excluding all references to Nationwide, yet allowing Nationwide to participate in the trial. It found that

Heflin’s complaint asserted ... a contractual claim against Nationwide. Nationwide has defended its interests and fully participated throughout the litigation. Nationwide, even after this ruling, participated at trial by cross-examining a witness and making objections. The interests of justice require that the identity and role of Nationwide be revealed to the jury.

Id. at -, 2013 WL 5614290 at *14 (Griffis, J., dissenting).

¶ 34. Nationwide filed its motion in li-mine to exclude evidence of or reference to the UM policy issued by it to Heflin. To effectuate this motion, Nationwide argued that any and all mention of Nationwide should be prevented; to whit, that the jury should not be made aware of Nationwide’s existence in this particular lawsuit. Heflin objected, arguing that the exclusion of Nationwide, while it actively participated in the litigation, would mislead the jury and prejudice Heflin because the jury would think her claim was simply against a dead man’s estate, rather than including a contractual claim against her own insurance company. The circuit court agreed to conceal from the jury the existence of Nationwide in the lawsuit, while allowing Nationwide to actively participate in the trial. Nationwide had also actively participated in the case during the time leading up to trial.

¶ 35. The majority mischaracterizes the mere identity of Nationwide as a participating party as “evidence.” It is certainly the case that insurance policies themselves are often excluded at trial. The Mississippi Rules of Evidence provide that irrelevant evidence, as well as relevant evidence in which the “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence” may be excluded. M.R.E. 402, 403. Further, Rule 411 provides that

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

M.R.E. 411. However, merely identifying Nationwide as a defendant is not “evidence that a person was ... insured against liability,” and is thus not an evidentiary issue. Rather, the issue regards simply referencing the proper procedural posture of the case. The issue that was placed before the trial court, and which is before this Court, is whether a party defendant may actively participate in a case and not be identified as a party defendant in the case. Thus, the majority mistakenly analyzes a purely procedural issue as if it were an evidentiary issue. The identifying by name of a party defendant, who actively participates in the trial of a case, is not an effort to place an item of evidence into the trial record. Nor is the identifying by name of a party defendant, who actively participates in the trial of a case, an effort to offer “evidence that a person was or was not insured against liability” or that “he acted negligently or otherwise wrongfully.” M.R.E. 411. If Nationwide, a party defendant actively participating in the trial of this case, did not wish to be identified by name, its remedy was simple and straightforward. That remedy was to cease all active participation in the trial of this case, or to move to sever the cases.

¶36. The majority’s view — that the mere identity of a party is “evidence,” rather than an issue involving the openness of judicial proceedings — subjects the identity of every single party in every single case to scrutiny under Rule of Evidence 403, an extremely slippery slope. The ramifications are far-reaching and absurd. Is the identity of a criminal defendant “evidence” and must the trial court be compelled to conduct a Rule 403 analysis of it? What about the identity of the State in a criminal prosecution? What relevance does the identity of the State have to the case? A criminal defendant could argue that the identity of the State carries prejudicial effect on his case, as the weight and authority of the State harm his presumption of innocence and minimize the State’s burden of proof. What relevance could its identity possibly have other than to lend clout to the prosecution? Must any mention of the State be thus eliminated from criminal defendants’ cases? The possibilities are endless, the slope is slippery, and the majority would subject a trial court to needless analysis, when the identity of the parties is simply information the jury and public have a right to know, absent exceptional circumstances.

¶ 37. In analyzing the issue of whether the identity of a party who actively participates in a case should be revealed to the jury, this Court looks to the United States Constitution, rules of procedure, and case-law. The Mississippi Rules of Civil Procedure require that complaints contain the names of all parties. M.R.C.P. 10(a). Generally, “the identity of the parties to a lawsuit should not be concealed.” Southern Methodist Univ. Ass’n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir.1979) (internal quotations omitted). Indeed, juries are entitled to know who the defendant in a trial is. Wig-more on Evidence, § 282a, at 168-69 (Chadbourn Rev. 1979). Public access to the names of parties “is more than a customary procedural formality; First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings.” Doe v. Stegall, 653 F.2d 180, 185 (5th Cir.1981). While the public “right to scrutinize governmental functioning,” which includes an assurance of fairness that is preserved by open trials, is not as compromised by party anonymity as it is by closure of a trial itself, “there [nevertheless] remains a clear and strong First Amendment interest in ensuring that ‘(w)hat transpires in the courtroom is public property.’ ” Id. (quoting Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947)). The “almost universal practice of disclosure” due to the “customary and constitutionally-embedded presumption of openness in judicial proceedings” may be overcome only when the need for party anonymity due to privacy concerns “overwhelms the presumption of disclosure mandated by procedural custom.” Stegall, 653 F.2d at 185-86.

¶ 38. Furthermore, Nationwide was properly joined as a party to the lawsuit. M.R.C.P. 19, 20; Vaughn v. State Farm Mut. Auto. Ins. Co., 445 So.2d 224, 226 (Miss.1984). As a party to the lawsuit, if Nationwide did not want to tie its defense to Merrill’s, it could have filed a motion to sever the lawsuit, and, if granted, ceased participation in the lawsuit regarding Merrill and litigated only the contractual claim against it. M.R.C.P. 21; see also Caldwell v. Alfa Ins. Co., 686 So.2d 1092, 1094 (Miss.1996) (claims against UM carrier were severed from claims against underlying tortfeasor). The motion in limine, as granted by the trial court, essentially severs the claims while allowing Nationwide to participate in the suit against Merrill and hide its identity from the jury, simply to avoid any prejudice a vague knowledge of insurance coverage might cause. While Mississippi law does not address whether such procedure is an acceptable departure from the general rule that the identity of the parties should not be concealed, other jurisdictions have addressed this issue. The Court of Appeals dissent and the parties deem the two lines of cases as the “Florida” approach and the “Virginia” approach, although other states have also addressed this issue.

a. The Florida Approach

¶ 39. Florida law requires that when a UM insurer is a proper party to an action against the tortfeasor, “it is appropriate for a jury to be aware of the presence of’ the UM insurer. Gov’t Employees Ins. Co. v. Krawzak, 675 So.2d 115, 117 (Fla. 1996); see also Lamz v. Geico Gen. Ins. Co., 803 So.2d 593, 595 (FIa.2001) (“[T]he principle that the jury should be made aware of the precise identity of an uninsured or underinsured insurance carrier if it is a party at trial” is clearly established. “The policy behind such a requirement is that full disclosure of the identity of the parties protects the integrity of the jury system and prevents charades at trial.”); Medina v. Peralta, 724 So.2d 1188, 1189-90 (Fla.1999) (exclusion of the identity of a necessary party for or against whom a judgment will be entered is not subject to a harmless error analysis; it is a “miscarriage of justice” which constitutes reversible error). Florida takes “a strong stand against charades in trials.” Krawzak, 675 So.2d at 118. “To have the UM insurer ... not be so named to the jury is a pure fiction in violation of this policy. The unknown consequences of such a fiction could adversely affect the rights of the insured who contracted and paid for this insurance.” Id.

¶ 40. Other courts have followed Florida’s line of reasoning. In King v. State Farm Mutual Automobile Insurance Co., the insured filed suit against his UM insurer subsequent to an automobile accident. King v. State Farm Mut. Auto. Ins. Co., 157 Md.App. 287, 850 A.2d 428, 429 (2003). Prior to trial, the parties stipulated that the other driver was liable and that the insurer was responsible for any judgment in excess of the other driver’s insurance coverage. Id. at 289-90, 850 A.2d 428. The only thing in dispute was the extent of the insured’s injuries. Id. at 290, 850 A.2d 428. The insurer filed a motion in limine asking that its identification as the defendant be prohibited, referencing the Maryland Rule of Evidence regarding the exclusion of references to liability insurance, and the trial court granted the motion. Id. The appeals court noted that UM coverage is a promise to pay its own insured rather than a promise to its insured to pay a third party, and thus is not typical liability insurance. Id. at 294, 850 A.2d 428. It looked to federal authority regarding Federal Rule of Procedure 10(a), requiring all parties be identified in the complaint, and emphasized the concept that the rule “is more than a statement of customary procedure,” but relates to First Amendment concerns and the policies regarding the openness of the courts. Id. It determined that the insurers were concerned “that they will suffer adverse economic consequences unless permitted to proceed anonymously.” Id. at 296, 850 A.2d 428. It found that the insurer, a corporation, had “no personal right of privacy,” and moreover, that “the unsubstantiated belief by [the insurer] that its disclosure as the defendant would adversely affect the jury’s verdict furnishes insufficient justification for withholding from the jury, and from the general public, [the insurer’s] identity as the defendant at a public trial.” Id. at 298, 850 A.2d 428. It concluded that

The lack of per se prejudice to the UM/ UIM carrier in being identified at trial at which the insured’s damages, under the policy, are determined by rules applicable to tort cases is shown by the permissibility of joining, as defendants in an action brought by the insured, the tortfeasor and the UM/UIM carrier. Indeed, [the insurer’s] position here is no different from that of any insurer that is sued directly for breach of its policy or from that of any apparently “deep pocket” corporation that is sued for breach of contract by its promisee. We hold that the circuit court abused its discretion in imposing this partial blackout on public information.

Id. at 298-99, 850 A.2d 428 (internal citations omitted).

¶41. Other courts likewise have held that the jury has a right to be aware of the identity of an UM carrier defendant. In Tucker v. McQuery, the court found that the jury may be informed that the UM carrier is the real party in interest. Tucker v. McQuery, 107 Ohio Misc.2d 38, 40, 736 N.E.2d 574, 575 (Ohio Ct. Common Pleas 1999). It noted the basic public policy for excluding evidence of insurance under Rule 411, stating that “we do not want juries to ‘be reckless in awarding damages’ as they will be paid ‘not by the defendant, but by a supposedly well-pursed and heartless insurance company that has already been paid for taking the risk.’ ” Id. at 41, 736 N.E.2d 574 (quoting Wigmore on Evidence, § 282a, 148 (Chardbourn Rev. 1979)). The court then found that the disclosure of the insurance company as the real defendant “does not require exclusion, as this is ‘another purpose’ as contemplated by” Rule 411. Id. It concluded that “jurors have the right to know who the real party in interest is.” Id. at 42, 736 N.E.2d 574; see also Wheeler v. Creekmore, 469 S.W.2d 559 (Ky.1971) (“It is our opinion that the considerations which have prompted the rule against mention of ordinary liability insurance in an automobile negligence case must yield in uninsured-motorist cases to the procedural desirability of letting the jury know who are the parties to the litigation where the uninsured motorist carrier elects to participate actively in the trial.”).

b. The Virginia Approach

¶ 42. In Travelers Insurance Co. v. Lo-bello, the Virginia Supreme Court determined that it was prejudicial error to inject insurance into the case. Travelers Ins. Co. v. Lobello, 212 Va. 534, 186 S.E.2d 80 (1972). In Lobello, the plaintiff sued three tortfeasors (drivers of three other cars) subsequent to an automobile accident. Id. at 81. One of the three code-fendants was uninsured; therefore, the plaintiff “served a copy of the motion for judgment on ... his uninsured motorist carrier.” Id. The UM carrier “filed grounds of defense in its own name and participated in trial of the case.” Id. The insurer’s counsel “obtained the permission of the trial court to tell the jury he represented [the plaintiffs] uninsured motorist carrier.” Id. at 82. One of the codefen-dants, as well as the plaintiff, objected. Id. The jury was then informed that the uninsured defendant “was an uninsured motorist and that [the insurer’s] attorney was assisting him in his defense.” Id. The Supreme Court of Virginia found that it was prejudicial error to the insured code-fendant to inject insurance into the case. Id. “To tell the jury that [the uninsured codefendant] was uninsured was to permit it to infer that [the other codefendant] was insured. And where two or more defendants may be jointly and severally liable, to say that one defendant has ‘insurance backing’ is to create a situation permitting the return of a possibly inflated verdict binding upon on defendants so liable.” Id.; see also Allstate Ins. Co. v. Wade, 265 Va. 383, 579 S.E.2d 180 (2003) (UM insurer in an automobile accident case involving intoxicated defendants wanted to inform jury that insurance company, not the defendants who engaged in reprehensible conduct, would be paying punitive damages award; court held that the injection of insurance was an improper attempt to deflate the award, prejudicing plaintiffs).

c. Analysis

¶ 43. I find the reasoning followed by Florida and like courts compelling. Hef-lin was within her rights to join Nationwide as a party to the action. Absent compelling circumstances, the jury and the public have a right to know the identity of the parties to a case. The Mississippi Rules of Civil Procedure and constitutional notions regarding the openness of court proceedings dictate such a result. Such concerns clearly outweigh any unsubstantiated prejudice to the verdict that the mere identity , of a party may cause. Jurors likely already assume that insurance is involved, and modern notions indicate that the presence of insurance is unlikely to affect a jury verdict; thus, Nationwide’s unsubstantiated economic concerns are not sufficient to outweigh the importance of identifying the parties in a case to the jury. This is especially true where, as in this case, that party actively participates in the litigation to defend or protect its interests. The jury was entitled to understand Nationwide’s identity and motivation for defending the lawsuit.

¶ 44. ' Additionally, the Virginia cases are distinguishable from the case at hand. In Lobello, the injection of insurance by a nonparty potentially prejudiced codefen-dants, a situation not present in this case. In Wade, the admitted purpose of injecting insurance into the case, when the insurer was not a party to the lawsuit, was to influence the award of damages. Moreover, Virginia law, unlike Mississippi law, does not allow a direct action in contract against an uninsured motorist carrier until judgment in tort has already been entered against the tortfeasor. Willard v. Aetna Cas. & Sur. Co., 218 Va. 481, 193 S.E.2d 776, 778 (1973); see Vaughn, 445 So.2d at 226. Thus, in the cases decided in Virginia, the plaintiff had no right to join the insurer as a party to the lawsuit, and the procedural concerns at issue here were nonexistent.

¶ 45. Furthermore, it stretches credulity to argue that the mere knowledge that an insurance company is a defendant in a lawsuit prejudices that insurance company. See Reed v. Wimmer, 195 W.Va. 199, 465 S.E.2d 199, 208 (1995) (“Apart from the fairly obvious conclusion that most jurors are aware of the law mandating insurance in West Virginia, there is no consensus among jurists as to which party evidence of insurance adversely affects.”) (“Today with widespread insurance coverage and mandatory insurance laws in many states, most courts are reluctant to grant a mistrial or reverse a verdict merely because the issue of insurance was raised.... The prevailing view among the commentators is that evidence of insurance is rarely prejudicial[.]”). Jurors are likely to assume that insurance is involved in litigation involving automobile accidents. See Bingham v. Poswistilo, 14 Pa. D. & C. 5th 17, 2011 WL 8809426, *10 (Pa.Ct. of Common Pleas 2011) (“As a practical matter, it is difficult to conceive how 21st century jurors are unaware of the existence of insurance in motor vehicle litigation.”). Indeed, given that “liability insurance is made compulsory in many states ... in such eases the fact of insurance is notorious under the law.” Wigmore, supra, § 282a, at 169. Automobile liability insurance is compulsory under Mississippi law, so it is difficult to conceive that most jurors would be unaware of insurance presence in litigation regarding automobile accidents. Miss. Code Ann. §§ 68-15-30"), 63-15-4(2)(a) (Rev. 2013). Additionally, “apart from compulsory insurance, the general prevalence of liability insurance for automobile injuries is known to the jurors; hence, for the law to forbid any disclosure of it in the course of the trial seems to be merely a piece of hypocritical futility.” Wigmore, supra, § 282a, at 169.

¶46. Because Nationwide’s identity as a proper party to the lawsuit was erroneously concealed from the jury, I would reverse the trial court’s judgment and remand for further proceedings. Further, I believe that a harmless error analysis is inapplicable in such a case in which the entire proceeding was irreparably tainted by the improper exclusion of the identity of a party. Medina, 724 So.2d at 1190 (“[W]e find that examination of the record would be pointless because the entire proceeding was tainted by the pretrial exclusion of the insurer’s identity, which constitutes a miscarriage of justice.”).

¶ 47. I also disagree with the majority’s analysis of Heflin’s other points of error. While I believe that these issues are not reversible error, I write because the majority’s view upends settled evidentiary law and is in error.

¶ 48. The trial court excluded Mike’s testimony regarding his opinion as to the speed at which Merrill was traveling when the accident occurred. Lay opinion testimony is admissible so long as it is “rationally based on the perception of the witness,” “helpful to the clear understanding of the testimony or the determination of a fact in issue,” and “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” M.R.E. 701. Generally, lay witnesses may testify as to their opinion on the speed of a moving vehicle if the witness observed the vehicle in question. Howard v. State, 346 So.2d 918, 920 (Miss.1977) (“The general rule is that ‘a witness who observed the moving object in question will be permitted to estimate its speed if he possesses some knowledge or experience, however slight, which will enable him to form an opinion.’ ”) (quoting 32 C.J.S. Evidence § 546(53) (1964)) (noting that “most people ha[ve] at least some prior experience in judging speed”). The “testimony must pertain to the speed of the offending vehicle at the time, or just prior to the collision.” Moore v. State, 816 So.2d 1022, 1028 (Miss.Ct.App.2002). Mike’s testimony was that he looked in his rearview mirror just prior to the collision and observed Merrill’s vehicle about to hit his vehicle, thus his opinion on speed was based upon his perception, because he observed the vehicle in question. Excluding Mike’s testimony regarding speed because he was not qualified as an expert was error, as lay opinion on speed based on the witness’s observation is permissible under Mississippi law.

¶ 49. The trial court also excluded Mike’s testimony regarding Merrill’s statements to Mike after the accident, despite the statements constituting admissions by a party opponent. The trial court did so, at least in part, because Merrill was not available for cross-examination because he was deceased. Part of the reason for excluding the statement was that the judge feared it would “inflame and confuse the jury” because the statement was made by someone now deceased. I find no basis under Mississippi law to exclude an admission by a party opponent merely because that party is deceased. See Savarese v. Agriss, 883 F.2d 1194, 1199-1202 (Sd Cir.1989) (admission by a deceased party-opponent admissible; “We believe the better view is that the fact of the declarant’s death impacts on the weight of the evidence rather than its admissibility.”); White v. Honeywell, Inc., 141 F.3d 1270, 1277 (8th Cir.1998) (unavailability does not render an admission by a party opponent unfairly prejudicial; although such a statement “remains subject to the Rule 403 balancing of probative value and unfair prejudicial effect, unavailability itself is not a factor adding to unfair prejudicial effect”); Fischer v. Forestwood Co., Inc., 525 F.3d 972, 984-85 (10th Cir.2008) (“[Cjourts have consistently rejected the argument that for an admission by a party opponent to be admissible, the declarant must be available for cross-examination.”). Thus, while I agree that the statements made by Merrill to Mike after the accident are subject to a Rule 403 analysis and may ultimately be inadmissible, the fact that Merrill is deceased is not a proper consideration under that analysis.

¶ 50. Because I believe that Nationwide’s identity as a participating party in the litigation was improperly concealed from the jury, and because I disagree with the majority’s analysis of the evidentiary issues raised, I would reverse the trail court’s judgment and remand for a new trial.

KITCHENS, J., JOINS THIS OPINION.

      . After the accident, Merrill passed away due to causes unrelated to the accident.

      . See Miss. R. Evid. 801(d)(2)(a) (statements offered against opposing party are not hearsay).

      . Heflin v. Merrill, No.2012-CA-00663-COA, 154 So.3d 887, 891, 2013 WL 5614290, at *3 (Miss.Ct.App. Oct. 15, 2013).

        .James v. Carawan, 995 So.2d 69, 75 (Miss. 2008) (citing Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (Miss. 1999)).

      . Miss. R. Evid. 402.

      . Miss. R. Evid. 401.

      . Miss. R. Evid. 411.

      . Capital City Ins. Co. v. G.B. "Boots” Smith Corp., 889 So.2d 505, 510 (Miss.2004) (citing Morris v. Huff, 238 Miss. 111, 118-19, 117 So.2d 800, 802-03 (1960); Snowden v. Webb, 217 Miss. 664, 675-76, 64 So.2d 745, 750 (1953)).

      . Capital City Ins. Co., 889 So.2d at 510 (quoting Snowden, 64 So.2d at 750).

      . Bardis v. First Trenton Ins. Co., 199 N.J. 265, 971 A.2d 1062, 1069 (2009).

      . See Mattingly v. Stinson, 281 S.W.3d 796, 798 (Ky.2009) (prohibiting the disclosure of an underinsured motorist carrier’s identity where the tortfeasor remained a real party to the action); Wineinger v. Ellis, 855 N.E.2d 614, 620 (Ind.Ct.App.2006) (upholding a trial court's order that an underinsured motorist carrier’s identity not be disclosed at trial, because the only issue at trial was the extent and nature of injuries); Allstate Ins. Co. v. Wade, 265 Va. 383, 579 S.E.2d 180, 183-84 (2003) (recognizing that sometimes the knowledge that a party is uninsured can actually prejudice the plaintiff and deflate the jury’s verdict against the uninsured defendant); Travelers Ins. Co. v. Lobello, 212 Va. 534, 186 S.E.2d 80, 82 (1972) (holding that it was error to inject the issue of uninsured motorist coverage at trial).

        .See Miss. R. Evid. 411.

      . Miss. R. Evid. 402.

      . Miss. R. Evid. 403.

      . Bardis, 971 A.2d at 1069.

      . Jackson v. State, 684 So.2d 1213, 1225 (Miss. 1996) (quoting Douglas v. State, 525 So.2d 1312, 1318 (Miss. 1988)).

      . Lamz v. Geico Gen. Ins. Co., 803 So.2d 593, 595 (Fla.2001).

      . Id. at 597 (Wells, C J., dissenting).

      . Roberts v. Grafe Auto. Co., Inc., 701 So.2d 1093, 1099 (Miss.1997) (citing Couch v. City of D’Iberville, 656 So.2d 146, 153 (Miss. 1995)).

      . Miss. R. Evid. 702.

      . Miss. R. Evid. 701(c) (providing that lay opinion may not be based on "scientific, technical, or other specialized knowledge" within the scope of Rule 702).

      . See Maddox v. Muirhead, 738 So.2d 742, 743 (Miss. 1999) (noting that a trial court reviews a denial of a motion for new trial or additur for abuse of discretion).

      . The trial court stated that "it’s the court’s opinion that introducing [UM coverage] along with the existence of Nationwide Insurance Company to the jury would potentially prejudice that jury as to a determination of damages.”

      . Nationwide and the majority both rely on the proposition that the mere identity of a party is somehow “evidence.” “Evidence" is defined as "something (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact.” Black’s Law Dictionary 595 (8th ed. 2004). Nationwide and the majority both fail to explain how merely identifying a party as a party "tends to prove or disprove the existence of an alleged fact.” Such an interpretation that the identity of a party alone is “evidence” could have widespread ramifications on our legal system. For example, in a criminal case for manslaughter, in which the defendant concedes that he killed the victim (and thus concedes identity and admits to the actions that led to a death), but asserts that he did so in self-defense, the rule articulated by the majority indicates that such a defendant would be able to have his identity hidden at trial as irrelevant "evidence.”

      . Federal Rule of Civil Procedure 10(a) is substantially the same as Mississippi Rule of Civil Procedure 10(a). When interpreting the Mississippi Rules of Civil Procedure, this Court views federal interpretations of the federal counterpart to the state rule as persuasive authority. Veal v. J.P. Morgan Trust Co., N.A., 955 So.2d 843, 847 (Miss.2007).

      . The majority not only discounts the plaintiff’s right to have the jury informed of Nationwide’s role, it completely ignores the public’s constitutional stake in the openness of judicial proceedings.

      . The insured had settled with the other driver prior to trial for the limit of her insur-anee policy. King, 850 A.2d at 430.

      . Indeed, Mississippi provides statutorily for extenuating circumstances in which the identity of a party may be concealed, for example, in youth court cases or adoption cases. See Miss.Code Ann. §§ 43-21-251(2) (Rev. 2009), 93-17-25 (Rev. 2013). This indicates that Mississippi law favors disclosure of the parties, absent some compelling circumstance necessitating the identity of a party be concealed. The majority's view, doing what the Legislature has not done, appears to invade the province of the Legislature. Had the Legislature wanted to include insurance defendants in the category of parties whose identity may be concealed, it would have so provided, as it has done for minors in youth court and adoption cases. The purpose of keeping minors’ identities confidential is to protect the best interests of minor children, and to prevent injury that might occur from the dissemination of private and potentially damaging information. In re R.J.M.B., 133 So.3d 335, 346 (Miss.2013) (King, J., concurring in part and dissenting in part). In the case of youth courts, youth courts are specially tasked with protecting and nurturing minors. See id.; Miss.Code Ann. § 43-21-103 (Rev. 2009). Moreover, children are under the disability of minority, and because they cannot act for themselves, equity courts are specially tasked with protecting the rights of minors. Alack v. Phelps, 230 So.2d 789, 792-93 (Miss. 1970). "From the earliest times, infants were regarded as entitled to the special protection of the state.” Wheeler v. Shoemake, 213 Miss. 374, 57 So.2d 267, 285 (Miss. 1952). Chancery courts, which have jurisdiction over infants, therefore have the duty to protect minors’ interests and welfare. Id. at 286. The Legislature has not determined that insurance companies have a similar need for protection and confidentiality from the courts, nor are insurance companies under any similar disability that would garner a need for the court’s special protection.

      . Indeed, the hearsay rules, which are not directly applicable to this analysis because this case involves an admission by a party opponent, allow for statements made by witnesses unavailable due to death. M.R.E. 804. Thus, the rules certainly contemplate allowing into evidence statements made by deceased persons, which undermines the idea that the jury would be "inflamed and confused” by the person's status as deceased.