author: JOHNSON, J.

text:
    Tramaine EUGENE-ROBINSON v. EAST JEFFERSON GENERAL HOSPITAL
    NO. 17-CA-433
    Court of Appeal of Louisiana, Fifth Circuit.
    December 27, 2017
    COUNSEL FOR PLAINTIFF/APPELLANT, TRAMAINE EUGENE-ROBINSON, Laurie W. Maschek
    COUNSEL FOR DEFENDANT/APPELLEE, EAST JEFFERSON GENERAL HOSPITAL, Meghan E. Ruckman, Adam M. Stumpf
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Hans J. Liljeberg
   JOHNSON, J.

In this claim for workers' compensation, Claimant appeals the judgment of the workers' compensation judge sustaining Defendant's exception of prescription as to indemnity benefits. For the following reasons, we affirm.

FACTS & PROCEDURAL HISTORY

Claimant, Tramaine Eugene-Robinson, filed a 1008 Disputed Claim for Compensation on December 27, 2016, alleging she sustained a work-related injury on November 21, 2014 while employed as an EMT for East Jefferson General Hospital (EJGH). She claimed she injured her back and knees when a stretcher on which she was transporting a patient malfunctioned, causing her to drop the patient. Claimant asserted EJGH had paid no wage benefits, specifically supplemental earnings benefits (SEBs), as a result of the accident. On March 9, 2017, Claimant amended her disputed claim to assert that her injury was a "developmental injury." She also removed specific reference to the non-payment of SEBs, leaving a general claim that no wage benefits had been paid. EJGH answered the disputed claim and admitted Claimant sustained a work-related injury in the course of her employment with EJGH, but denied that her injury was of a developmental nature.

EJGH subsequently filed an exception of prescription on May 5, 2017, asserting Claimant's claim for workers' compensation benefits was prescribed because she failed to file her disputed claim within one year of the date of the accident or within one year of the development of the injury. In support of its exception, EJGH attached various exhibits, including three office visit medical reports pertaining to Claimant's treatment for her injuries and documentation showing that Claimant resigned from her job on August 10, 2015 due to health reasons. The resignation documentation indicates that Claimant gave written notice of her resignation stating that "due to medical reasons, no longer able to perform her full duties."

The office visit medical reports showed that Claimant was examined by Dr. Douglas Swift at the East Jefferson Occupational Medicine Clinic on the date of the accident, November 21, 2014, and placed on light duty work status for a knee contusion, lumbar sprain /strain, and lumbar disc displacement. Claimant was specifically advised to avoid lifting/pushing/pulling more than 10 lbs. Thereafter, on December 5, 2014, Claimant was again seen by Dr. Swift. The office visit medical report on that date indicated Claimant's status was "Out of Work as of: 12/5/2014." She was prescribed medication and given a return appointment for December 8, 2014. On her return appointment, Dr. Swift noted that Claimant was disabled from December 5th through December 8th, and he placed her on light duty work status effective December 9th with instructions she was only to perform desk work. He further referred her to an orthopedist.

Claimant opposed the exception of prescription and attached several medical records as exhibits to her opposition memorandum, including an MRI and arthrogram of her right hip performed on February 17, 2017 that indicated a labral tear of the right hip; a February 24, 2017 medical report from nurse practitioner Rachael Sood at Southern Orthopaedic Specialists stating that Claimant could not work until being treated for the labral tear to her right hip; a March 9, 2017 medical report from Dr. Chad Millet at Southern Orthopaedic Specialists recommending right hip surgery ; and a medical note indicating surgery was scheduled for May 3, 2017.

A hearing on the exception of prescription was held on June 2, 2017, during which no testimony or evidence was offered. The parties simply presented their arguments to the court and relied on the exhibits attached to the exception and opposition memorandum. The workers' compensation judge took the matter under advisement and rendered a judgment on June 13, 2017 sustaining EJGH's exception of prescription, specifically finding that Claimant's claim for indemnity benefits had prescribed. The trial judge issued reasons for judgment explaining that Claimant was first on notice of her disability when she was restricted from work from December 5-9, 2014, and again in August 2105 when she resigned from her employment with EJGH on the basis she was no longer able to perform her full duties. As such, the trial judge reasoned that Claimant's 1008 Disputed Claim for Compensation filed in December 2016 was untimely.

ISSUE

On appeal, Claimant argues the workers' compensation judge erred in finding that her claim for temporary total disability (TTD) benefits had prescribed. She asserts that she suffered a developmental injury that resulted in a disability in March 2017 when she was told that she needed surgery and told she could not work. She contends that because she instituted proceedings more than two years from the date of the accident but within three years from the date of the accident, she is entitled to six months of TTD benefits under La. R.S. 23:1209(4). Claimant also maintains that the trial court erred in failing to allow her to amend her petition to remove the grounds for the exception.

LAW & ANALYSIS

Under La. R.S. 23:1209(A), claims for workers' compensation benefits must be filed within (1) one year from the date of the accident; (2) one year from the last compensation payment for total disability or three years from the last payment of supplemental earnings benefits; or (3) one year from the date the injury develops, if the injury does not result at the time of or immediately after the accident, but no more than three years from the date of the accident. See Roussell v. V.J. Rollo Security Service, Inc. , 10-245 (La. App. 5 Cir. 10/12/10), 50 So.3d 900, 902.

Generally, development of the injury means development of the disability, which is usually identified as the time it becomes clear that the employee is no longer able to perform her employment duties in a satisfactory manner. Swearingen v. Air Products & Chemical, Inc. , 481 So.2d 122, 124 (La. 1986). Thus, an employee who suffers a work-related injury that immediately manifests itself, but only later develops into a disability, has a viable cause of action until one year from the development of the disability, rather than from the first appearance of symptoms or from the first date of treatment. Winford v. Conerly Corp. , 04-1278 (La. 3/11/05), 897 So.2d 560, 564. For purposes of prescription, the jurisprudence has identified two situations that signify the date a developing injury manifests as a disability: (1) the date the employee is forced to discontinue working due to the injury; or (2) the date the employee receives a medical diagnosis which determines that he is disabled. Id. at 565.

Ordinarily, the burden is on the party raising the exception of prescription to prove it. However, if prescription is evident on the face of the pleadings, the burden shifts to the claimant to show that the claim has not prescribed. Winford , 897 So.2d at 565. Evidence may be introduced to support or controvert the exception of prescription, when the grounds thereof do not appear from the petition. Gay v. Georgia-Pacific , 12-1892 (La. App. 1 Cir. 10/10/13), 184 So.3d 39, 43. In the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, which are accepted as true. Gregoire v. La. Dep't of Wildlife & Fisheries , 11-321 (La. App. 5 Cir. 4/10/12), 92 So.3d 932, 933.

Here, Claimant's initial 1008 disputed claim form filed on December 27, 2016, listed her date of injury and the date of accident as November 21, 2014. In her amended 1008, filed on March 9, 2017, Claimant alleged her injury was developmental. Under La. R.S. 23:1209(A)(3), Claimant's claim for compensation had to be filed within one year from when her injury manifested into a disability and within three years from the date of the accident. Claimant's claim was clearly filed within three years of the date of the accident, but there is no indication in her petition of the date on which her injury developed or manifested as a disability for purposes of workers' compensation benefits. Thus, it is not evident from the face of the pleading that Claimant's claim is prescribed. Accordingly, the burden was on EJGH to prove the claim was prescribed-that it was filed more than one year after the developmental injury manifested itself as a disability.

To meet its burden, EJGH provided evidence that Claimant resigned from her employment in August 2015 because she could no longer perform her job duties. This evidence was undisputed. During the hearing, Claimant's counsel argued that despite resigning from EJGH, Claimant found another job that she could perform and she continued to work until March 2017, when she learned she needed surgery for a labral tear and was told she could not work until she had surgery. Thus, counsel argued that Claimant's injury did not develop into a disability until March 2017. However, there was absolutely no evidence to support the argument of counsel. Specifically, Claimant failed to produce any evidence that she continued to work between August 2015 when she resigned from EJGH because she could no longer perform her full job duties and March 2017 when she was told she needed surgery and could not work. Thus, we find no error in the trial court's determination that August 2015 was the latest date Claimant's disability developed for purposes of prescription.

Finally, Claimant asserts that the workers' compensation judge should have given her an opportunity to amend her petition to cure the defect pursuant to La. C.C.P. art. 934, which provides:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed...the action, claim, demand, issue, or theory shall be dismissed.

Article 934 only requires that a plaintiff be granted an opportunity to amend when such an amendment would cure the objection raised in the exception. In the context of an objection of prescription, Article 934 has been interpreted to mean that where a plaintiff's compensation claim is prescribed on its face, and the plaintiff has the opportunity but fails to offer any evidence at the hearing of a peremptory exception that her claim was filed timely, she has failed to adequately establish that amendment of her petition might remove the grounds of the objection. Mitchell v. Terrebonne Parish Sch. Bd., 02-1021 (La. App. 1 Cir. 4/2/03), 843 So.2d 531, 534, writ denied , 03-2275 (La. 11/26/03), 860 So.2d 1135.

Here, Claimant's petition was not prescribed on its face but rather evidence was offered by the mover at the hearing on the exception to prove the claim was prescribed. Additionally, Claimant had an opportunity to offer evidence to show that her claim was timely filed but failed to do so; therefore, she cannot amend her petition to remove the grounds of objection. Accordingly, we find no error in the trial court's failure to allow Claimant time to amend her claim to remove the grounds for the objection.

DECREE

For the foregoing reasons, we affirm the ruling of the workers' compensation court sustaining EJGH's exception of prescription.

AFFIRMED

      We acknowledge the general rule that evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Denoux v. Vessel Mgmt. Servs., Inc. , 07-2143 (La. 5/21/08), 983 So.2d 84, 88. We also recognize that under La. R.S. 23:1317, the workers' compensation judge "shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence." We are further mindful of the Louisiana Supreme Court's pronouncement that "[w]hile ... the rules of evidence and procedure are relaxed in workers' compensation proceedings, such proceedings are nonetheless lawsuits to be conducted in conformity with the accepted standards of practice and procedure." Taylor v. Tommie's Gaming , 04-2254 (La. 5/24/05), 902 So.2d 380, 383.
      Pursuant to the Louisiana Administrative Code, 40:I.6301, pertaining to the submission of evidence in a workers' compensation proceeding, "[t]he parties shall file into the record all evidence at the time of trial or hearing." In this case, at the time of the hearing on the exception of prescription, the parties had already "filed into the record" various exhibits. During the hearing, neither party objected to the evidence that had been filed into the record despite an opportunity to do so. Additionally, both parties referred to the filed exhibits during their argument, and the trial court relied on the filed exhibits in rendering judgment. Considering that the rules of evidence and procedure are relaxed in a workers' compensation proceeding and LAC 40:I.6301, which governs the practice and procedure before the workers' compensation court, we find that the evidence "filed into the record" through attachments to memoranda in advance of the hearing was sufficiently presented for consideration in this context.

      La. R.S. 23:1209(A)(3) was amended by Acts 2012, No. 783, effective August 1, 2012, to change the prescriptive period from two years to three years. This Act also added Subsection (A)(4), which provides for the payment of no more than six months of TTD benefits when a claim for a developmental injury is filed more than two years from but within three years of the date of the accident.


source: Caselaw Access Project

author: MAXWELL, JUSTICE, FOR THE COURT: KITCHENS, JUSTICE, SPECIALLY CONCURRING:

license: Public Domain

text:
    Laqunn GARY a/k/a Lagunn Gary a/k/a Laqunn Sharod Gary v. STATE of Mississippi
    NO. 2014-KA-01172-SCT
    Supreme Court of Mississippi.
    December 1, 2016
    OFFICE OF THE STATE PUBLIC DEFENDER, BY: BENJAMIN ALLEN SUBER, GEORGE T. HOLMES, ATTORNEYS FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: ALICIA MARIE AINSWORTH, ATTORNEY FOR APPELLEE
    EN BANC.
   MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. Before his capital-murder trial, Laqunn Gary moved to suppress his confession, arguing he had not knowingly, intelligently, and voluntarily waived his Miranda rights. The trial court denied his motion without a hearing. This was error. Because Gary had questioned the voluntariness of his confession, he had a due-process right to a suppression hearing. And the State had the burden to prove his confession was in fact voluntary. We remand this case to the trial court to conduct a hearing to determine the admissibility of Gary's confession.

Background Facts and Procedural History

I. Investigation

¶ 2. On February 11, 2012, the Jackson Police Department (JPD) received a call about a dead body. Someone had found seventeen-year-old Vizavian Trent Darby lying in the grass with a gunshot wound to his head. Darby was last seen leaving home in his mother's rental car. Police found the abandoned car two days later.

¶ 3. On February 14, 2012, JPD took Gary in for questioning. After advising him of his Miranda rights, Detectives Eric Smith and Patricia Wilder interviewed Gary. During this interview, Gary confessed to shooting Darby, abandoning the rental car, and hiding the gun he used to shoot Darby, as well as Darby's 9 mm pistol. After the interview, Gary led Detective Smith and another detective to the guns.

¶ 4. Gary and his friend were indicted for capital murder for unlawfully killing Darby during the course of a robbery. See Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2014).

II. Pretrial

¶ 5. While Gary was awaiting trial, Detective Smith was killed. Detective Smith was interviewing a suspect in an unrelated case when that suspect grabbed Detective Smith's gun and shot him. Detective Wilder was in the interrogation room and witnessed her partner Smith's murder.

¶ 6. Before his trial, Gary moved to suppress his written statement and confession. The thrust of Gary's argument was that he was only seventeen at the time and too immature to appreciate the constitutional rights he purportedly waived before the interview. With Detective Smith's death and unavailability as a witness in Darby's trial, the State subpoenaed Detective Wilder to testify. Specifically, the State intended to call Detective Wilder to testify at Gary's suppression hearing to show his confession was voluntary.

¶ 7. But Detective Wilder did not want to testify. And an attorney she had retained to represent her in another matter moved to quash the State's subpoena. Detective Wilder's attorney argued she suffered from post-traumatic stress disorder (PTSD) from witnessing her partner's murder. And having to either watch and/or testify about Gary's recorded confession-which took place in the same or similar interrogation room where Detective Smith was shot-would damage her mental health. Detective Wilder's resistence to testifying prompted the State to file a pretrial motion to determine her availability as a witness.

¶ 8. On the Thursday before trial was set to begin on Monday, May 12, 2014, both the State's motion as well as Wilder's motion to quash the State's subpoena were brought for a hearing. At this hearing, Detective Wilder's therapist testified about Wilder's supposed PTSD and the potential harmful impact testifying might have on her.

¶ 9. Both the State and Gary informed the court that Detective Wilder's potential unavailability would impact Gary's suppression hearing, since the State intended to call Detective Wilder to prove Gary's confession was voluntary and to authenticate the video-recording of the confession. Gary's counsel reminded the court about Gary's pending suppression motion, urging an age-based challenge to the voluntariness of his Miranda waiver. At this point, a disagreement arose about Gary's true age. While Gary's counsel asserted he was seventeen when he confessed, the State insisted Gary was in fact eighteen, based on his birth date. Though the current hearing was about Wilder's availability to testify-not the admissibility of Gary's confession-Gary's counsel offered to put Gary on the stand for the limited purpose of confirming the year he was born.

¶ 10. From the stand, Gary testified he was born in November 1994, making him seventeen in February 2012. The trial court then permitted the State to cross-examine him about his age. The State showed Gary the Miranda waiver form and written statement, which listed his date of birth. Gary confirmed that he could read and write and that it was his signature on two of the pages. But he insisted the officers never asked him about his birthday. At this point, the State asked to show the video confession, suggesting that within the first thirty seconds of the video statement, Gary told Detective Smith and Detective Wilder he was born in 1993-making him eighteen, not seventeen. Over Gary's objection, the trial court permitted several minutes of the video to be played-up to when Gary was asked about his date of birth. Gary confirmed that he was the person in the video, that the video depicted him being interviewed by the two detectives, and that he had told the detectives he was born in 1993.

¶ 11. After Gary's brief testimony, the hearing shifted back to the issue of Detective Wilder's availability to testify. The hearing ended with the trial court taking the issue of Detective Wilder's availability under advisement.

¶ 12. On the morning of trial, the court announced that it had deemed Detective Wilder an unavailable witness. The court also confirmed it was denying Gary's motion to suppress his written statement and video-recorded confession. Gary's counsel spoke up, arguing she had not been heard on his motion to suppress. And though the court agreed with Gary's counsel that Gary "was not fully heard on his motions" to suppress the written statement and video-recorded confession, the court still ruled his confession was voluntary.

III. Conviction

¶ 13. At trial, the video confession was introduced through Deputy Chief Brent Winstead, the third detective who had witnessed parts of Gary's interview and had been with Gary when he led the police to the murder weapon. After hearing from multiple witnesses called by the State and defense, the jury found Gary guilty of capital murder. He was sentenced to life in prison without parole.

Discussion

¶ 14. Though Gary alleges several errors on appeal, we address only his first-the trial court's denial of Gary's motion to suppress his written statement and video-recorded confession. At a minimum, Gary argues, he was entitled to a suppression hearing, in which the State was required to put on evidence to meet its burden to make a prima facie case that the confession was voluntary. We agree.

¶ 15. "When the voluntariness of a confession is put into question, the defendant has a due process right to a reliable determination that the confession was in fact voluntarily given." Cox v. State , 586 So.2d 761, 763 (Miss. 1991) (citing Stokes v. State , 548 So.2d 118, 121 (Miss. 1989) ). To protect this right, we have held that "[w]hen objection is made to the introduction of the confession, the accused is entitled to a preliminary hearing" outside the presence of the jury "on the question of the admissibility of the confession." Agee v. State , 185 So.2d 671, 673 (Miss. 1966).

¶ 16. But here, as the trial court acknowledged, there was no suppression hearing. And because there was no suppression hearing, the State was never required to meet its burden to make a prima facie showing that Gary voluntarily had waived his Miranda rights and that his confession was voluntary. See Cox , 586 So.2d at 763. In fact, the State was not required to put on any evidence at all or call any witnesses about the voluntariness of his Miranda waiver or his statement. Instead, the trial court relied on evidence introduced through Gary-over his objection-to rule Gary's confession was admissible. This was error, since the State "bears the burden of proving all facts prerequisite to admissibility [of a confession] beyond a reasonable doubt." Id. And only after the State makes its prima facie case does the defendant have to put on evidence of coercion or involuntariness. See Agee , 185 So.2d at 673, as modified by Thorson v. State , 653 So.2d 876, 888 (Miss. 1994).

Conclusion

¶ 17. Because the court did not require the State to make a prima facie showing that Gary's confession was voluntary, we have no option but to remand this case to the trial court to hold a suppression hearing to decide if Gary's confession was indeed admissible. See Jackson v. Denno , 378 U.S. 368, 394, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) (remanding to the state court to conduct a constitutionally adequate suppression hearing); see also Conerly v. State , 760 So.2d 737, 742 (Miss. 2000) (remanding burglary case to the trial court for a probable-cause hearing, because no probable-cause determination had been made before admitting evidence found during the defendant's arrest). If, upon remand, the trial court determines Gary's confession is inadmissible, then the trial court shall vacate his conviction and order a new trial. See Conerly , 760 So.2d at 742. If the trial court finds Gary's confession was in fact admissible, it shall enter an order to that effect. See id. ; see also Jackson , 378 U.S. at 394, 84 S.Ct. at 1790, 12 L.Ed.2d (finding that, if after a proper suppression hearing, the confession is found to be voluntary and admissible, there is "no constitutional necessity at that point for proceeding with a new trial").

¶ 18. REMANDED WITH DIRECTIONS.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, COLEMAN AND BEAM, JJ., CONCUR. KITCHENS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., KING, AND COLEMAN, JJ.

KITCHENS, JUSTICE, SPECIALLY CONCURRING:

¶ 19. I concur with the majority's holding that, because the trial court did not require the State to present a prima facie case that Gary's confession was voluntary and that he knowingly, intelligently, and voluntarily waived his Miranda rights, the trial court erred by admitting the video recording of Gary's confession and his written statements. I write separately to address the clear Fifth Amendment violation that occurred when Gary was compelled to give evidence against himself by authenticating the video recording of his own statement and his own written statements.

¶ 20. "One of the most settled premises in our constitutional jurisprudence is that no individual may be compelled to testify against himself or to offer testimony which might render him liable to a criminal prosecution." Moore v. Moore , 558 So.2d 834, 836 (Miss. 1990). The Fifth Amendment to the United States Constitution provides that no person shall be compelled to be a witness against himself. U.S. Const. Amend. V ; U.S. Const. Amend XIV. And, under Article 3, Section 26, of our state constitution, the accused cannot "be compelled to give evidence against himself." Miss. Const. Art. 3, § 26. Under the Fifth Amendment, "[a] defendant is protected not merely from being placed on the witness stand and compelled to testify to his version of the matters set forth in the indictment; he is protected from authenticating by his oath any documents that are sought to be used against him ...." Haywood v. United States , 268 F. 795, 802 (7th Cir. 1920).

¶ 21. The accused may assert the privilege against self incrimination on a question-by-question basis or refuse to take the witness stand at all. Knapp v. State , 536 So.2d 1330, 1334 (Miss. 1988). A defendant can waive the right against self incrimination by voluntarily and knowingly taking the witness stand and responding to questions. Hentz v. State , 496 So.2d 668, 673 (Miss. 1986). But no waiver occurs if the defendant's counsel timely objects to questions that would elicit incriminating information. Moore , 558 So.2d at 838.

¶ 22. What occurred in this case starkly contravened these basic principles. Gary filed a motion to suppress his statements and a motion to suppress the videotape of his interrogation. The State bears the burden of proving that a confession is voluntary and admissible. According to the procedure for determining the voluntariness of a confession set out in Agee v. State , 185 So.2d 671, 673 (Miss. 1966), the State makes a prima facie case of admissibility by presenting testimony that the confession was voluntary. Id. Once the State makes a prima facie case, the burden shifts to the defendant to make specific allegations of coercion. Id. Then, the State can offer rebuttal testimony. Id.

¶ 23. As discussed in the majority opinion, no formal suppression hearing occurred in this case. Instead, in its ruling, the trial court pieced together facts gleaned from other preliminary proceedings to support the denial of the motions to suppress. The first such preliminary proceeding was the May 8, 2014, hearing on the State's motion to determine the availability of Patricia Wilder, one of the two officers who took Gary's statements; the other officer, Eric Smith, was deceased.

¶ 24. At this hearing, defense counsel argued that, if Wilder was deemed unavailable due to her post-traumatic stress disorder, the trial court should suppress Gary's statements because the State could not make out a prima facie case that the statements were voluntary and that Gary's Miranda waiver was knowing, intelligent, and voluntary. Thus, defense counsel argued, the availability determination was "critical" to the motions to suppress. Defense counsel argued that, if Wilder was declared unavailable, the trial court must categorically grant the motions to suppress.

¶ 25. Defense counsel also asserted that, without testimony from the officers, the State would be unable to authenticate the videotaped confession. The following colloquy occurred:

BY MS. KELLY: .... So there's a suppression of the videotape on the basis of the insufficient warning, but further, without Detective Wilder's testimony, the State cannot possibly authenticate the videotape because the only three people connected to the videotape were Detective Eric Smith, Detective Wilder and Mr. Gary. Mr. Gary is certainly not going to abandon his 5th Amendment right of self-incrimination to authenticate the very tape that would be used against him .
BY THE COURT: Ms. Kelly, what's your client's date of birth? What's his date of birth?
BY MS. KELLY: I'm going to have to ask him, sir. I know it, but I don't have it with me. 11/19/94.
BY THE COURT: 11/19 of '94?
BY MS. KELLY: Yes, sir. I'm sorry. 11/9 of '94. He was 17 at the time. He's no longer 17. He's been locked up for several years now.

(Emphasis added.) The State averred that its records showed Gary's birthday was November 9, 1993, which would have meant that he was eighteen years old at the times of the crime and the interrogation. Defense counsel then stated: "I just clarified with my client. For the very limited purpose of the [c]ourt ascertaining his correct birthday, he will-I will allow him to answer the [c]ourt under oath as to his birth date." The State requested limited cross examination of Gary as to his birth date. Defense counsel agreed, "[s]o long as the limited cross-examination deals with the date of birth only."

¶ 26. Accordingly, Gary, after being sworn, testified that his correct birth date was November 9, 1994. On cross examination, the State asked Gary if, during his interrogation, he had informed the detectives that he was born in 1993. Gary denied that the detectives had asked him about his birthday. The State then asked if Gary had signed and initialed his Miranda rights waiver form and his written statements. At this point, these documents were marked for identification only. Gary agreed that he had signed the waiver form and one of the statements, but he denied having initialed the statement. The State also elicited Gary's testimony that he had an eighth grade education and could read and write. Defense counsel objected that this questioning was beyond the scope of Gary's birth date.

¶ 27. Then the State informed the trial court that Gary had stated his birth date on the videotaped recording of his confession. The State requested to publish the recorded interview, and defense counsel objected. The trial court overruled the objection and allowed a portion of the videotape to be played. When the recording was played, the State elicited Gary's testimony that he was the person on the videotape, and that the videotape was a recording of his interview. Again, defense counsel objected.

¶ 28. Before the trial began on May 12, 2014, the trial court informed the parties of its finding that Wilder was unavailable and of its denial of the motions to suppress. The trial court stated that, based on its review of Gary's videotaped statement, the State had made out a prima facie case of voluntariness. Defense counsel argued that, because the State had presented no testimony, no prima facie case had been made. Defense counsel argued that the trial court's viewing of the videotape had been for the limited purpose of determining Gary's age, not for the purpose of ruling on the motions to suppress. Defense counsel requested that the trial court either grant the motions to suppress or continue the case until Wilder became well enough to testify, enabling State to establish a prima facie case. The State argued that the trial court had sufficient information to rule on the motion to suppress based on Gary's testimony as to his age and education level, and his authentication of the videotaped confession. Defense counsel responded that "without Detective Wilder, they simply can't authenticate the statement or the tape without Mr. Gary's waiving his Fifth Amendment rights, which he will not do at this point."

¶ 29. The trial court denied the motion for a continuance, finding that "the Miranda waiver was signed and initialed various times by the defendant. The defendant acknowledged signing the waiver during the video statement, and the defendant confirmed during the video statement that he had not been threatened or coerced to give the statement at issue." In an order entered after Gary's sentencing, the trial court expounded on its reasoning for denying the motion to suppress. Concerning the fact that the State had presented no evidence, the trial court stated:

The totality of the circumstances approach supports this [c]ourt's finding that the evidence presented by the parties during the May 8, 2014[,] hearing was sufficient to find that the State made the necessary prima facie case. The defendant verified under oath that he initialed and signed the Miranda waiver. The defendant confirmed under oath that he was [the] interviewee in the videotape. Although the recitation of the defendant's Miranda rights were [sic] not made on the videotape, Detective Smith and the defendant confirmed on at least two different occasions during the tape that the Miranda warnings were given to the defendant, he understood these rights, and that he was not threatened or coerced into giving the statement. Notably, the [c]ourt found very persuasive that throughout the videotape, both the detectives and the defendant were calm, collected, and rational. Due to the aforementioned circumstances, among others, the [c]ourt did not require testimony to establish the prima facie case of voluntariness.

(Emphasis in original.) Having found that the State had made its prima facie case, the trial court went on to find that Gary had not presented any evidence that his confession had been coerced. The trial court found from the "totality of the circumstances" that Gary's Miranda waiver had been knowing, intelligent, and voluntary, and that his confession was not the result of coercion.

¶ 30. The majority correctly holds that, because the State did not make out a prima facie case, the trial court erred by weighing the evidence. But what occurred in this case also implicated Gary's right against self incrimination. After conferring with Gary, defense counsel permitted him to take the stand to testify about his birth date and to answer questions on cross examination limited to his birth date. When the State's questions veered away from the subject of Gary's birth date, defense counsel objected. Defense counsel also contemporaneously objected on Fifth Amendment grounds to the State's elicitation of Gary's authentication of the videotaped recording and written statements. While Gary's waiver did expose him to the State's use of his prior inconsistent statements to impeach his direct testimony about his age, defense counsel's objections make clear that his waiver did not extend to authentication of the videotaped recording and written statements for use as substantive evidence against him. The trial court's overruling of those objections forced Gary to incriminate himself by authenticating the evidence against him, in clear violation of the Fifth Amendment of the United States Constitution and Article 3, Section 26, of the Mississippi Constitution. Simply put, Gary was forced to give evidence against himself, in violation of one of our most basic tenets of constitutional law. Even without the gross mishandling of the suppression motions, this error alone would warrant reversal.

¶ 31. I agree that this case must be remanded for the trial court to hold a suppression hearing to determine whether Gary's confession was admissible. This case is distinguishable from Keller v. State , 138 So.3d 817 (Miss. 2014), in which I dissented. In Keller , I wrote that the majority erroneously entered an order that reopened a suppression hearing to permit the State to put on additional evidence. In my opinion, that order impermissibly gave the State a second opportunity to adduce testimony that the accused's confession was voluntary. Keller , 138 So.3d at 878 (Kitchens, J., dissenting). Unlike Keller , in this case, because no suppression hearing occurred, neither the State nor the defense had an opportunity to present any evidence. Therefore, this Court appropriately remands to the trial court with instructions to hold a suppression hearing. If the trial court finds that confession was admissible, no new trial is required. Jackson v. Denno , 378 U.S. 368, 395, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

DICKINSON, P.J., KING AND COLEMAN, JJ., JOIN THIS OPINION.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (requiring that, prior to a custodial interrogation, the person be warned he has a right to remain silent, that any statement he makes may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed).

      The pair were further charged with using a firearm during the commission of a felony, in violation of Mississippi Code Section 97-37-37 (Rev. 2014).

      For reasons unclear from the record, Gary was tried by himself.

      Apparently, the court had emailed the parties over the weekend, informing them of its decision on the two motions. So the pronouncement from the bench was to place in the record the court's rulings and reasoning.

      Gary also claims the evidence was insufficient to convict him of capital murder and that his guilty verdict is contrary to the overwhelming weight of the evidence. He also broadly asserts "cumulative errors" require a new trial.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      The trial court already had provided the parties with informal notice of these rulings by email.


text:
    Cyndy HOWARTH, individually, Wife, Wrongful Death Beneficiary, and as Executrix of the Estate of Richard Howarth, Jr., Deceased, Juliet Howarth McDonald, individually, Daughter, and as Wrongful Death Beneficiary of Richard Howarth, Jr., Deceased, and Cyndy Howarth, as Guardian, Natural Mother and Next Friend of Cynthia Howarth, a Minor and Wrongful Death Beneficiary of Richard Howarth, Jr., Deceased v. M & H VENTURES, LLC
    NO. 2016-CA-00742-SCT
    Supreme Court of Mississippi.
    November 2, 2017 Rehearing Denied March 1, 2018
    ATTORNEYS FOR APPELLANT: WAYNE E. FERRELL, JR., BRADLEY S. CLANTON, WILLIAM WYATT SIMMONS
    ATTORNEYS FOR APPELLEE: GLENN F. BECKHAM, RICHARD L. KIMMEL
    BEFORE WALLER, C.J., KITCHENS, P.J., AND BEAM, J.
   KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. Richard H. Howarth, Jr., died in an airplane crash on January 16, 2012. Howarth was piloting the plane, which was the property of M & H Ventures, LLC ("M & H Ventures" or "the LLC"). The sole member of M & H Ventures was Howarth. On December 6, 2013, Howarth's widow, Cyndy Howarth, as executrix of Howarth's estate, wrongful death beneficiary of Howarth, and next friend of minor daughter Cynthia Howarth, along with adult daughter Juliet Howarth McDonald (the wrongful death beneficiaries), filed suit against the LLC in the Circuit Court of Neshoba County, alleging that Howarth's death had been caused by the negligence, gross negligence, and recklessness of M & H Ventures and others.

¶ 2. M & H Ventures filed a motion to dismiss, and, subsequently, a motion for summary judgment, arguing that the wrongful death beneficiaries could not recover because the success of their claims depended on proving that Howarth's own negligence had caused his death. In response, the wrongful death beneficiaries argued that, because M & H Ventures, an LLC, had owned the aircraft and all of Howarth's negligent actions had been performed as a member of this LLC, they could recover from M & H Ventures for Howarth's negligence. The trial court granted summary judgment in favor of M & H Ventures. Because the comparative negligence statute, Mississippi Code Section 11-7-15, prevents a plaintiff from recovering for negligence attributable to the injured person, and here Howarth's wrongful death beneficiaries were seeking recovery for Howarth's own negligence, we affirm.

FACTS

¶ 3. On January 16, 2012, Howarth was taking off from the Philadelphia Municipal Airport in Philadelphia, Mississippi, when his airplane crashed, causing his death. Howarth was the sole occupant of the plane. Approximately six years before the crash, Howarth had created M & H Ventures, a Montana limited liability company. According to M & H Ventures' Operating Agreement, the LLC's purpose was investment in real and personal property. The Operating Agreement provided that the "Member (Owner)" of M & H Ventures was Howarth. In October 2011, M & H Ventures purchased the plane that later was involved in the crash.

¶ 4. The wrongful death beneficiaries sued M & H Ventures; Tracey Easom, an airplane mechanic; Ted Smith Aerostar Aircraft Corporation, the manufacturer of the airplane; and fictitious defendants A-M. The trial court granted the wrongful death beneficiaries' request to file an amended complaint on January 14, 2015, substituting Aerostar Aircraft Corporation, Piper Aircraft Corporation, Piper Aircraft Corporation Irrevocable Trust, New Piper Aircraft, Inc., and Piper Aircraft, Inc. for fictitious defendants A through E. The plaintiffs alleged that the plane piloted by Howarth had experienced a loss in directional control on takeoff that had resulted in the deadly crash. While the plaintiffs' claims in the complaint were somewhat repetitive, their basic allegations were that the defendants had been negligent, grossly negligent, and reckless in the maintenance, repair, and inspection of the aircraft, fuel system, fuel selector switches, exhaust system, and their component parts. They alleged that M & H Ventures and Easom negligently and recklessly had performed engine modifications, repairs, maintenance, and inspection, and also that they had certified, serviced, repaired, tested, inspected, overhauled, rebuilt, owned, and operated the plane and its parts. Further, they alleged that M & H Ventures and Easom falsely had certified in engine logs that the plane was airworthy and not unreasonably dangerous. They also made claims of defective condition and failure to warn against the manufacturers. The plaintiffs alleged that "[o]n the occasion in question the negligence of the Defendants, M & H Ventures, Tracey Easom, and Aircraft Manufacturer[s], was the proximate cause of the accident in question ...."

¶ 5. M & H Ventures' defense was provided pursuant to the terms of a liability insurance policy from which the wrongful death beneficiaries sought to collect in this lawsuit. M & H Ventures filed a motion to dismiss on grounds including failure to state a claim, followed by a motion for summary judgment. The wrongful death beneficiaries responded and requested a continuance to allow them to obtain discovery under Mississippi Rule of Civil Procedure 56(f). The trial court denied the motion for a continuance and granted summary judgment to M & H Ventures.

The trial court found that, under the comparative negligence statute, Mississippi Code Section 11-7-15, the wrongful death beneficiaries could not recover for the negligence of M & H Ventures, because M & H Ventures only could have acted through its sole member, Howarth, and a wrongful death beneficiary cannot recover for the decedent's own negligence. The trial court further denied the wrongful death beneficiaries' request for a continuance for further discovery because there was no possibility of unearthing any evidence that would have created a genuine issue of material fact. Finding that there was no just reason for delay, the trial court directed the entry of a final judgment as to M & H Ventures pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED BY FINDING THERE WAS NO GENUINE ISSUE OF MATERIAL FACT AND M & H VENTURES WAS ENTITLED TO A JUDGMENT AS A MATTER OF LAW.

A. Standard of Review

¶ 6. The moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). The movant has the burden to show that no genuine issue of material fact exists. Price v. Purdue Pharma Co. , 920 So.2d 479, 483 (Miss. 2006). In determining whether the movant is entitled to summary judgment, the trial court must view all of the evidence in the light most favorable to the nonmoving party. Id. This Court applies de novo review to the trial court's ruling on summary judgment. Ready v. RWI Transp. , LLC , 203 So.3d 590, 593 (Miss. 2016).

B. Because the wrongful death beneficiaries' claims depended on their proving Howarth was negligent, no genuine issue of material fact exists .

¶ 7. It was undisputed that Howarth was the sole member of M & H Ventures, and that M & H Ventures had no employees. Thus, as the trial court found, all of the allegations of negligence made by the wrongful death beneficiaries against M & H Ventures necessarily rested upon the actions or inactions of Howarth himself. The comparative negligence statute, Mississippi Code Section 11-7-15, provides:

In all actions hereafter brought for personal injuries, or where such injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property, or person having control over the property may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured , or the owner of the property, or the person having control over the property.

Miss. Code Ann. § 11-7-15 (Rev. 2004) (emphasis added). The trial court found that, because Howarth was the sole member of M & H Ventures, the LLC could act or fail to act only through him. Therefore, the trial court found, the assertions in the amended complaint of negligence by M &

H Ventures could only be the negligence of Howarth. Because, under Section 11-7-15, damages are reduced in proportion to the decedent's own negligence, the wrongful death beneficiaries' damages for Howarth's negligence would have to be reduced to nothing. Therefore, the trial court found that the wrongful death beneficiaries had failed to show a genuine issue of material fact for trial.

¶ 8. On appeal, the wrongful death beneficiaries argue that genuine issues of material fact exist on whether Howarth was totally responsible for his own death. First, they argue that the trial court's holding essentially pierced the veil of M & H Ventures by focusing on the acts of Howarth rather than on the acts of the LLC. An LLC member cannot be individually liable for the LLC's debts solely by virtue of his being a member. However, under extraordinary circumstances a court may "pierce the corporate veil" and disregard limited liability when certain facts are proven. Restaurant of Hattiesburg, LLC v. Hotel & Restaurant Supply, Inc. , 84 So.3d 32, 39 (Miss. Ct. App. 2012) (applying to LLCs the three-prong test for piercing the corporate veil, established in Gray v. Edgewater Landing, Inc. , 541 So.2d 1044, 1047 (Miss. 1989) ). The wrongful death beneficiaries do not seek to shield Howarth from individual liability for the debts of M & H Ventures. Thus, whether to pierce M & H Ventures' corporate veil is not at issue. Rather, the wrongful death beneficiaries seek to impose liability upon M & H Ventures based upon Howarth's negligent acts. And that endeavor implicates Section 11-7-15, which must reduce the wrongful death beneficiaries' damages by the amount attributable to Howarth's negligence. The wrongful death beneficiaries cannot use a piercing-the-veil argument to evade the application of Section 11-7-15.

¶ 9. Second, they aver that, under Malone v. Capital Correctional Resources, Inc. , 808 So.2d 963 (Miss. 2002), the corporate owner of an aircraft shares responsibility for negligence of the pilot. In Malone , an airplane's pilot negligently failed to lower the landing gear after the plane was cleared to land. Id. at 964. The injured passengers sued both the plane's pilot and its corporate owner. The owner's only involvement with the crash was having lent the plane to the pilot to transport the passengers to a football game. Id. The trial court granted the owner's motion for summary judgment. Id.

¶ 10. In determining whether the owner could be held liable, this Court reviewed two Mississippi statutes governing the operation of aircraft, Mississippi Code Section 61-1-3(j) and Section 61-11-1(1). Id. at 965-66. Section 61-1-3(j) provides that:

(j) "Operation of aircraft" or "operate aircraft" means the use of aircraft for the purpose of air navigation, and includes the navigation or piloting of aircraft. Any person who causes or authorizes the operation of aircraft, whether with or without the right of legal control (in the capacity of owner, lessee, or otherwise) of the aircraft, shall be deemed to be engaged in the operation of aircraft within the meaning of the statutes of this state ....

Miss. Code Ann. § 61-1-3(j) (Rev. 2013). "Person" is defined as "any individual, firm, partnership, corporation, company, association, joint stock association, or body politic, and includes any trustee, receiver, assignee or other similar representative thereof." Miss. Code Ann. § 61-1-3(k) (Rev. 2013). Section 61-11-1(1) provides that:

It shall be unlawful for any person to operate an aircraft in the air or on the ground or water, while under the influence of intoxicating liquor, narcotics or other habit-forming drug, or to operate an aircraft in the air or on the ground or water, in a careless or reckless manner so as to endanger the life or property of another. In any proceeding charging careless or reckless operation of aircraft in violation of this section, the court in determining whether the operation was careless or reckless shall consider the standards for safe operation of aircraft prescribed by federal statutes or regulations governing aeronautics.

Miss. Code Ann. § 61-11-1(1) (Rev. 2013).

¶ 11. The Court in Malone interpreted these statutes to mean that the owner of an aircraft is also an operator and is vicariously liable for all acts of the pilot. Malone , 808 So.2d at 966. The Court recognized that, under Section 61-1-3(j), "the owner of a plane will be treated as an operator just like the pilot actually operating the plane." Id. at 966. The Court held that, if an airplane owner authorizes a pilot to use the plane, the owner is vicariously liable for the pilot's negligence in operating the plane. Id. Because the passengers had presented evidence that the corporate owner had authorized the negligent pilot to use the plane, the Court found genuine issues of material fact existed as to the owner's liability and reversed the grant of summary judgment. Id. at 966-67.

¶ 12. The wrongful death beneficiaries argue that, under Malone , Howarth could not be deemed totally responsible for his own death. They contend that the import of Malone is that acts of negligence by the pilot, Howarth, mean that M & H Ventures, the airplane's owner, also was negligent. Because this argument confuses the distinct concepts of negligence and liability, we disagree. Malone did not hold that the pilot's negligence establishes that the airplane owner committed negligent acts or omissions. Rather, Malone established that an airplane owner is vicariously liable for the pilot's negligent acts or omissions, meaning that an airplane owner can be held legally responsible to pay damages for negligent acts or omissions committed by the pilot. Malone does not stand for the proposition that, when an airplane's pilot is negligent, the airplane's owner also has committed acts of negligence.

¶ 13. In this case, the wrongful death beneficiaries seek to recover from M & H Ventures based on the negligent acts or omissions of the pilot, Howarth. But because Howarth was the sole member of M & H Ventures and it had no employees, M & H Ventures could act or fail to act only through Howarth. Under Section 11-7-15, damages must be reduced in proportion to the negligence of the person injured. Miss. Code Ann. § 11-7-15 (Rev. 2004). We note that, if Howarth had survived the crash, he would have been unable to recover from M & H Ventures for his own negligence. Howarth's wrongful death beneficiaries stand in his shoes and also cannot recover for his negligence. Because M & H Ventures could act only through Howarth, and the wrongful death beneficiaries are barred from recovering for Howarth's negligence, the trial court properly granted summary judgment to M & H Ventures.

¶ 14. Another issue requires brief mention. In its order granting M & H Ventures'

motion for summary judgment, the trial court found that, due to the operation of the comparative negligence statute, the wrongful death beneficiaries would be unable to prevail against M & H Ventures whether or not the LLC had been dissolved upon Howarth's death. But the trial court also examined the question of whether, upon Howarth's death, M & H Ventures had dissolved or had become the property of the estate. Noting the presence of a conflict in the operating agreement concerning the fate of M & H Ventures upon Howarth's death, the trial court made alternative findings that the wrongful death beneficiaries could not recover from M & H Ventures (1) if M & H Ventures had been dissolved upon Howarth's death, due to the comparative negligence statute, or (2) if M & H Ventures had become the property of the estate upon Howarth's death, because a party cannot sue itself. On appeal, the wrongful death beneficiaries devote a substantial portion of their brief to arguing that they were able recover from M & H Ventures regardless of whether the LLC had been dissolved. Because our holding that there is no genuine issue of material fact due to the application of the comparative negligence statute obviates the question of whether the estate owns the LLC or whether it, in fact, dissolved upon Howarth's death, we provide no analysis of this issue.

II. WHETHER THE TRIAL COURT ERRED BY DENYING THE WRONGFUL DEATH BENEFICIARIES' REQUEST FOR DISCOVERY UNDER MISSISSIPPI RULE OF CIVIL PROCEDURE 56(f).

¶ 15. The wrongful death beneficiaries moved for a continuance to obtain discovery for the purpose of opposing M & H Ventures' motion for summary judgment. The trial court denied the motion. Mississippi Rule of Civil Procedure 56(f) provides:

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order as is just.

M.R.C.P. 56(f). When a party requests a continuance under Rule 56(f) to obtain additional discovery, the party "must present specific facts why he cannot oppose the motion and must specifically demonstrate 'how postponement of a ruling on the motion will enable him, by discovery or other means, to rebut the movant's showing of the absence of a genuine issue of fact.' " Stanley v. Scott Petroleum Corp. , 184 So.3d 940, 942 (Miss. 2016) (quoting Prescott v. Leaf River Forest Prods., Inc. , 740 So.2d 301, 308 (Miss. 1999) ). This Court reviews the trial court's denial of a Rule 56(f) motion for abuse of discretion. Stanley , 184 So.3d at 942.

¶ 16. The wrongful death beneficiaries argue that further discovery was necessary for them to oppose summary judgment and that the trial court should have ordered a continuance under Rule 56(f). They contend that, when M & H Ventures filed its motion to dismiss, it had made a mere special appearance for the purposes of determining jurisdiction, and it had not submitted to the jurisdiction of the court. M & H Ventures eventually submitted to the trial court's jurisdiction by filing an answer, but then it filed the motion for summary judgment seven days later. The wrongful death beneficiaries filed a summary judgment response in which they responded to the arguments in the motion, but also argued that seven days had been insufficient time for them to conduct discovery to craft an effective response. However, in their response, they did admit that M & H Ventures had no employees and that it could have acted or failed to act only through Howarth.

¶ 17. The trial court denied the motion on the basis that further discovery would have availed nothing to the wrongful death beneficiaries. They asserted that they requested discovery to show the history of M & H Ventures' ownership and maintenance of the airplane and to investigate the relationship between M & H Ventures and Easom. The trial court found that the discovery the wrongful death beneficiaries wished to conduct would not have assisted them in resisting summary judgment. The trial court found that, regarding the history of M & H Ventures and the airplane, Cyndy Howarth, as the executrix of the estate, had access to all records of M & H Ventures' existence as an LLC. Because M & H Ventures could have acted only through Richard Howarth, the trial court found that maintenance records would not have assisted the wrongful death beneficiaries. As for the relationship between M & H Ventures and Easom, the trial court found that, because the wrongful death beneficiaries had admitted that the LLC had no employees and that it could have acted or failed to act only through Richard Howarth, any discoverable evidence showing Easom had been negligent in the maintenance of the aircraft would not have supported the case against M & H Ventures.

¶ 18. M & H Ventures argues that, because the wrongful death beneficiaries failed to submit affidavits stating why they could not present facts to oppose summary judgment, the trial court properly denied a continuance. But as the wrongful death beneficiaries argue, this Court has held that "[n]either written requests nor affidavits are required" to obtain relief under Rule 56(f). Id. The wrongful death beneficiaries sufficiently explained their discovery needs to the trial court at the summary judgment hearing.

¶ 19. Nonetheless, the trial court's denial of the motion for a continuance to obtain further discovery was not an abuse of discretion. On appeal, the wrongful death beneficiaries provide no argument explaining why the trial court's reasoning was incorrect. The wrongful death beneficiaries admitted that M & H Ventures only could have acted or failed to act through Richard Howarth, and they point to no additional evidence they could have discovered that could have assisted them in pursuing their claim against M & H Ventures. Therefore, we hold that the trial court's denial of the Rule 56(f) motion for a continuance was not an abuse of discretion.

CONCLUSION

¶ 20. Because the comparative negligence statute, Mississippi Code Section 11-7-15, prevents a plaintiff from recovering for the negligence of the injured person, and here the wrongful death beneficiaries seek to recover for Howarth's own negligence, this Court affirms the grant of summary judgment in favor of M & H Ventures. We also affirm the trial court's denial of the wrongful death beneficiaries' motion to obtain further discovery under Rule 56(f).

¶ 21. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

      At the hearing on the motion to dismiss, M & H Ventures asserted that the liability policy's purpose was to protect M & H Ventures and Howarth from liability to third persons incurred during aeronautical activities.

      The wrongful death beneficiaries admitted in their summary judgment response that M & H had no employees; at the summary judgment hearing, they admitted that Easom, the airplane's mechanic, probably was an independent contractor.

      We recognize that in Malone , the Court said that "[s]ince the owner also stands as the operator of the plane, then logically if the pilot is found negligent then the owner of the plane will also be determined to be negligent as a co-operator of the plane." Malone , 808 So.2d at 966 (emphasis added). As discussed below, Malone clearly held that Section 61-1-3(j) makes an airplane owner vicariously liable for pilot negligence. Id. at 966. We do not read Malone to mean that pilot negligence automatically means that the owner also has committed negligent acts, a conclusion that would be nonsensical. Rather, Malone signifies that the aircraft owner is vicariously liable for negligence of the pilot.