author: GREMILLION, Judge.

text:
    Kerri A. LATOUR, et al. v. ALLSTATE INS. CO., et al.
    18-395
    Court of Appeal of Louisiana, Third Circuit.
    December 28, 2018
    John William Penny, Jr., Christopher Shannon Hardy, Penny & Hardy, 600 Jefferson Street, Suite 601, Lafayette, LA 70502, (337) 231-1955, COUNSEL FOR DEFENDANT/APPLICANT: Allstate Insurance Company
    Christopher Parnell Lawler, Donovan & Lawler, 4640 Rye Street, Suite 100, Metairie, LA 70006, (504) 454-6808, COUNSEL FOR DEFENDANT/RESPONDENT: Debbie Derouen
    Michael A. Rainey, Attorney at Law, P. O. Box 80067, Lafayette, LA 70598, (337) 504-5558, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Stephen E. Latour, Kerri A. Latour, Individually and on behalf of Averi G. Latour
    Court composed of Sylvia R. Cooks, Marc T. Amy, Elizabeth A. Pickett, Shannon J. Gremillion, and Candyce G. Perret, Judges.
   GREMILLION, Judge.

Steven and Kerri Latour filed suit against Debbie Derouen and Allstate Insurance Company, her homeowners' insurer, seeking damages for bruises and bite marks suffered by their fifteen-month-old daughter, Averi Latour, on August 25, 2014, while she was in the care of Ms. Derouen. Ms. Derouen provided daycare services for children in her home in exchange for compensation. On the day Averi was bitten, Ms. Derouen was caring for two of her grandchildren in addition to six other children, including Averi. When the children were napping, Ms. Derouen heard a child crying and went to check on the child. Upon entering the room where the children were napping, she found Averi crying and two other children, one sitting on either side of her. Averi had been bitten on both of her legs and her sides. One of the children sitting by Averi was Ms. Derouen's grandchild; the other child was one she regularly cared for. Ms. Derouen's testimony indicates Averi may have been bitten by either or both of these two children.

Allstate filed a motion for summary judgment, seeking to have the Latours'

claims against it dismissed. Allstate based its motion on a provision of its policy which excludes liability coverage for injuries "arising out of ... business activities of any insured." It argues that because Ms. Derouen was providing daycare services for Averi when Averi was injured by another child in her care, Averi's injuries arose out of her business activities; therefore, the Latours' claims are excluded from the personal liability coverage provision of its policy.

The Latours asserted to the trial court that Averi was bitten by Ms. Derouen's grandchild and that because Allstate's policy definition of "business" excepts daycare services for an insured's relatives from the definition of business activities, the exclusion is inapplicable. Therefore, they urged that a genuine issue of material fact exists as to whether Averi's injuries arose out of Ms. Derouen's daycare business and that this issue precludes summary judgment. They also argued that language contained in Allstate's premises liability exclusion confirms coverage for Averi's injuries or, in the alternative, creates an ambiguity which also precludes summary judgment.

The trial court denied Allstate's motion, finding that the difference between the pertinent language of the personal liability exclusion as compared to the premises liability exclusion of the policy "create[d] an issue." Allstate filed a writ application, seeking reversal of the trial court's judgment and the grant of summary judgment in its favor. We granted writs and ordered briefing. Latour v. Allstate Ins. Co. , 18-395 (La.App. 3 Cir. 8/9/18) (unpublished opinion). For the reasons that follow, we grant Allstate's requested relief.

ANALYSIS

"Since the denial of a motion for summary judgment is an interlocutory ruling from which no appeal may be taken, the only practical remedy available to avoid a possibly useless trial on the merits is to request that the appellate court exercise its supervisory jurisdiction to review the propriety of this ruling." Breaux v. Cozy Cottages, LLC , 14-597, p. 4 (La.App. 3 Cir. 11/12/14), 151 So.3d 183, 187. "Ordinarily, an application for supervisory writs is the appropriate vehicle for the review of an interlocutory judgment." McGinn v. Crescent City Connection Bridge Auth ., 15-165, p. 4 (La.App. 4 Cir. 7/22/15), 174 So.3d 145, 148.

On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La. 7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). This means that judgment must be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party's claim. Id. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.
Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La. 1/16/98), 706 So.2d 979. In deciding whether facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2).

Am. Zurich Ins. Co. v. Caterpillar, Inc. , 12-270, pp. 4-5 (La.App. 3 Cir. 10/3/12), 99 So.3d 739, 742-43. When considering a motion for summary judgment, the judge should not weigh the evidence or determine the truth of the matter; instead, he must determine whether there is a genuine issue of triable fact. Larson v. XYZ Ins. Co. , 16-745 (La. 5/3/17), 226 So.3d 412. "All doubts should be resolved in the non-moving party's favor." Id. at 416.

An insurer seeking to avoid coverage through summary judgment bears the burden of proving that some provision or exclusion applies to preclude coverage. The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved on summary judgment. However, summary judgment declaring a lack of coverage under an insurance policy may only be rendered if there is no reasonable interpretation of the policy when applied to the undisputed material facts shown by the evidence supporting the motion under which coverage could be afforded.

Chenevert v. Allstate Prop. & Cas. Ins. Co. , 17-56, p. 4 (La.App. 3 Cir. 10/11/17), 229 So.3d 937, 940 (citations omitted).

Allstate's motion for summary judgment is premised upon the following pertinent provisions of its policy titled "Coverage X Family Liability Protection":

Allstate will pay damages for which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies, and is covered by this part of the policy.
....
Losses We Do Not Cover Under Coverage X:
....
12. We do not cover bodily injury or property damage arising out of the past or present business activities of an insured person.

Recently, in Green ex rel. Peterson v. Johnson , 14-292, p. 4 (La. 10/15/14), 149 So.3d 766, 770-71 (citation omitted), our supreme court reviewed the principles of insurance contract interpretation and explained:

[C]ertain elementary legal principles apply in analyzing an insurance policy. First and foremost is the rule that an insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. According to those rules, the responsibility of the judiciary in interpreting insurance contracts is to determine the parties' common intent; this analysis is begun by reviewing the words of the insurance contract. When the words of an insurance contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent, and courts must enforce the contract as written. The determination of whether a contract is clear or ambiguous is a question of law.

"Exclusionary provisions in insurance contracts are strictly construed against the insurer, and any ambiguity is construed in favor of the insured." Ledbetter v. Concord Gen. Corp ., 95-809, p. 4 (La. 1/6/96), 665 So.2d 1166, 1169, amended , 95-809 (La. 4/18/96), 671 So.2d 915. Nonetheless, the rule of strict construction does not "authorize a perversion of language, or the exercise of inventive powers for the purpose of creating an ambiguity where none exists[.]" Muse v. Metro. Life Ins. Co ., 193 La. 605, 614, 192 So. 72, 75 (1939). Moreover, insurance companies have the right to limit coverage in any manner they choose, if the limitations imposed do not conflict with statutory provisions or public policy. Reynolds v. Select Props., Ltd ., 93-1480 (La. 4/11/94), 634 So.2d 1180.

The Latours argue that the focus should be on the source of their child's injuries. Because the probable source of the child's bite was not a child for whose care the homeowner was compensated, the Latours argue that the injury did not "arise out of" the operation of a daycare facility in Ms. Derouen's home per the terms of the Allstate policy. We disagree.

Insurance is purchased to protect the insured against exposure from liability. This principle is embodied in the insuring agreement, which, in this case, provides, "Subject to the terms, conditions and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies, and is covered by this part of the policy." Liability insurance payment is always predicated upon the insured's legal liability. In this matter, the allegations against the homeowner involve failure to supervise "the minor child," which, throughout the petition, refers to the injured child. The risk that a minor child would be injured at the operator's home is precisely the risk Allstate avoided in excluding coverage for operating a daycare. The acts or omissions of the homeowner/insured is the proper focus in determining whether the exclusion applies. This approach mirrors those previously used in similar cases, and it provides a more concrete foundation upon which subsequent homeowners and insurers can structure their dealings in the future.

Elorza v. Massey , 00-313 (La.App. 5 Cir. 3/14/01), 783 So.2d 453, involved a child injured at a home-based daycare facility while playing on a trampoline that had been purchased by the homeowner for the use of her children. However, she allowed the daycare charges to play on the trampoline. The business pursuits exclusion was held to exclude coverage:

The accident in question occurred during the course of Massey's [the homeowner's] ordinary working day, while she was performing her customary business tasks. Kayla [the injured child] was present at Massey's house because Massey's business was an "at home" business; Kayla was at Massey's house because it was Massey's business to care for a group of children. Kayla was hurt while she was tussling with another one of the children Massey was paid to watch. And the fact that the accident arose out of Massey's negligence on the job does not negate the fact that it arose out of her business or somehow render inoperable the business exclusion contained in her homeowner's policy.
Massey argues that because the trampoline was purchased "primarily" for family use, it was not part of the equipment used for the day care. This argument is unavailing, however. It is defeated by Massey's own testimony: Massey herself testified that the day care charges were allowed to use the trampoline. Need we hear any more? If the trampoline was not used as part of Massey's business, it was Massey's business to make the trampoline inaccessible to her day care children.

Id. at 456.

In the matter of Felder v. Despinasse , 564 So.2d 1331 (La.App. 4 Cir. 1990), the court of appeal employed a far simpler analysis in determining whether the exclusion should apply. In fact, other than particulars of the day-to-day operation of the in-home daycare, the court's only discussion of the facts was that the plaintiffs'

child had broken his arm while in the homeowner's care. The court nevertheless concluded:

While there remains doubt as to how Stephen broke his arm, he would not have broken it inside the Despinasses' home had he not been placed there in the care and control of Mrs. Despinasse because she was operating a day care center on the premises. We find that the operation of a day care center for compensation is a business pursuit excluded from coverage under the language of the Allstate policy.

Id. at 1332.

In MVG v. Lucas , 590 So.2d 1322 (La.App. 1 Cir. 1991), the homeowner operated a daycare from her home. One of her charges was sexually molested by the homeowner's major son, and the parents sued, alleging that the homeowner failed to properly supervise the child entrusted to her care-the same allegations present in the matter at bar. The homeowner's insurer filed a motion for summary judgment, which was, of course, decided under the former standards governing summary judgment. The court held:

It is undisputed that Delores Lucas operated a day care center for compensation in her home. Baby-sitting was her business. Supervising CEG was Delores Lucas' job. The act which Delores Lucas failed to do, properly supervise CEG, was pursuant to the business. The business was run in Delores Lucas' home and injuries arising out of the business were excluded from her homeowner's coverage.
The act of failing to supervise CEG was not a non-business activity and cannot be compared, as argued by MVG, to activities ordinarily incidental to non-business pursuits such as playing a practical joke or preparing coffee for a social guest. The exception to the exclusion does not apply.

Id. at 1324 (footnotes omitted). The agency of injury is irrelevant to the inquiry into coverage in this case. What is relevant are the alleged actions or omissions of the insured upon which liability is asserted and whether those actions further the operation of the daycare. In the context of the present case, the omission for which the Latours seek to impose liability on Ms. Derouen is her negligent supervision of their minor daughter. Regardless of whether the child was bitten by Ms. Derouen's grandchild or another child, it is beyond dispute that if Ms. Derouen were not operating a daycare from her home, the Latours' child would not have been bitten.

The ruling of the trial court denying Allstate Insurance Company's motion for summary judgment is reversed. Judgment in favor of Allstate Insurance Company is rendered, dismissing the demands of Stephen E. Latour and Kerri A. Latour, individually and on behalf of their minor child, Averi G. Latour. All costs of these proceedings are taxed as costs to Stephen E. Latour and Kerri A. Latour, individually and on behalf of their minor child, Averi G. Latour.

REVERSED AND RENDERED.

Cooks, Judge, dissents and assigns reasons.

Pickett, Judge, dissents for the reasons assigned by Judge Cooks.

COOKS, J., dissents.

Steven and Keri Latour (Plaintiffs) sued Debbie Derouen (Defendant) and Allstate Insurance Company (Allstate) as her homeowner's insurer. Plaintiffs allege their child, Averi, was injured while in daycare at Defendant's residence. It is undisputed that Defendant operates a daycare business out of her home and was being paid by Plaintiffs to keep their child daily. It is also undisputed that Defendant was watching over two of her grandchildren on the day of the alleged incident and they were not there as paying customers of her daycare business. Though it is not disputed that Averi had bite marks on her body, it is in dispute as to which child or children inflicted the bites on Averi. Defendant testified in deposition she did not see which child bit Averi but when she came into the room in response to hearing a child crying she observed one of her grandchildren sitting next to Averi and that grandchild was laughing while Averi was crying. She therefore assumed her grandchild bit Averi. She also said another child was near Averi on the opposite side.

Allstate filed a motion for summary judgment asserting its homeowner policy contains a specific business exclusion which states: "We do not cover bodily injury or property damage arising out of the past or present business activities of an insured person." (emphasis added) Allstate asserts this language in the policy applies to the situation at hand regardless of whether the child who bit Averi is one of Defendant's grandchildren, who by definition in the Allstate policy were not part of her day care business, or one of the other daycare customers' children. Allstate maintains Defendant had a duty to protect Averi from harm and she breached that duty, and that such "arises out of" the operation of her daycare business. The trial court denied Allstate's motion for summary judgment because it found there are competing provisions in the insurance policy regarding coverage, the application of which is affected by whether Averi was bitten by one of Defendant's grandchildren or one of the daycare customers or both. This, said the trial judge, "creates an issue" and thereby denied summary judgment. I agree with the trial judge and for the reasons that follow I respectfully dissent from the majority opinion reversing the trial court judgment.

Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La. 5/17/06), 930 So.2d 906, 910. Thus, appellate courts must ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Hood v. Cotter, 08-0215, 08-0237, p. 9 (La. 12/2/08), 5 So.3d 819, 824.

C & C Energy, L.L.C. v. Cody Investments, L.L.C. , 09-2160 (La. 7/6/10), 41 So.3d 1134, 1137.

Additionally, the Louisiana State Supreme Court has also held:

Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Westerfield v. LaFleur, 493 So.2d 600, 605 (la.1986)...
The purpose of liability insurance is to afford the insured protection from damage claims. Policies therefore should be construed to effect, and not to deny, coverage . Thus, a provision which seeks to narrow the insurer's obligation is strictly construed against the insurer , and, if the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied. Garcia v. St. Bernard School Bd., 576 So.2d 975, 976 (La.1991) ; Breland v. Schilling, 550 So.2d 609, 610 (La.1989).

Reynolds v. Select Properties, Ltd. , 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183 (emphasis added).

Reviewing this record de novo I do not believe this court can conclude that Allstate is entitled to judgment as a matter of law . I also believe there are several unresolved genuine issues of fact that cannot be determined on summary judgment. First and foremost, we must understand from the outset that by the very terms of Allstate's policy language ("arising out of") the exclusion on which Allstate relies does not turn on Defendant's duty owed to Averi as a day care customer , as the majority finds, but, rather, turns on the "source of the injury " to Averi. See Lucas v. Deville , 385 So.2d 804, 820 (La.App. 1979), writ refused , 386 So.2d 357 (La.1980), and writ refused , 386 So.2d 359 (La.1980) (emphasis added). As one sister circuit court has noted "[t]he phrase 'arising out of' implies an element of causality..." Elorza v. Massey , 00-313 (La.App. 5 Cir. 3/14/01), 783 So.2d 453, 456. Section X of the policy excludes coverage for any bodily injury or damage to property "arising out of " the business activities of its insured. By definition in Allstate's policy, taking care of a grandchild is not a business activity . The majority acknowledges this fact. As Defendant asserts, the "source" of Averi's injuries was likely Defendant's grandchild, thus the injuries to Averi did not "arise out of" Defendant's business activities. The evidence presented in support of the motion for summary judgment as to who bit Averi is equivocal. But more importantly, there is no evidence in support of Allstate's motion for summary judgment that Averi was only bit by another paying customer's child. Without that evidence Allstate fails to show that Averi's injuries arose out of Defendant's day care business and are thus subject to the policy exclusion. The majority finds it is the breach of Defendant's duty to Averi as her daycare client that determines whether the injury to Averi "arose out of" Defendant's business activities. This finding is incorrect. By use of the phrase "arising out of" Allstate's policy bases liability for Averi's injuries on the source of Averi's injuries , not on the grandmother's duty owed to either child. If the source of Averi's injuries is one of Defendant's grandchildren, who by definition in the Allstate policy are not part of Defendant's business activities, then the Allstate exclusion relied on does not apply. The injuries would not "arise out of" the daycare business. I reiterate that neither the trial court, nor this court on de novo review, can determine from the evidence submitted on summary judgment who bit Averi, or whether Defendant failed to meet any legal duty, without making credibility determinations and resolving competing factual allegations.

Allstate's argument is belied by its own policy provisions.

In Reynolds , our state supreme court explained:

An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Smith v. Matthews, 611 So.2d 1377, 1379 (La.1993). The parties' intent, as reflected by the words of the policy, determine the extent of coverage. La.Civ.Code art. 2045 ; Louisiana Ins. Guar. Ass'n v. Interstate Fire & Casualty Co., 93-0911, p. 5, 630 So.2d 759, 763 (La.1994). Words and phrases used in a policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. Interstate, 630 So.2d at 763 ; La.Civ.Code art. 2047. An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Interstate, 630 So.2d at 763. Where the language in the policy is clear, unambiguous, and expressive of the intent of the parties, the agreement must be enforced as written. Central La. Elec. Co. v. Westinghouse Elec. Corp., 579 So.2d 981, 985 (La.1991). However, if after applying the other rules of construction an ambiguity remains, the ambiguous provision is to be construed against the drafter and in favor of the insured. Interstate, 630 So.2d at 763-64.

Reynolds , 634 So.2d at 1183.

Allstate's policy submitted in evidence in support of its motion for summary judgment provides in pertinent parts (emphasis added):

"Business" means:
a) Any full or part-time activity of any kind engaged in for economic gain including the use of any part of any premises for such purposes. The providing of home day care services to other than an insured person or relative of an insured person for economic gain is also a business.
Section II-Family Liability and Guest Medical Protection
Coverage X
Family Liability Protection
Losses We Cover Under Coverage X:
Subject to the terms, conditions and limitations of this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies, and is covered by this part of the policy.
Losses We Do Not Cover Under Coverage X:
1. We do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of the insured person...
12. We do not cover bodily injury or property damage arising out of the past or present business activities of an insured person.
15. We do not cover any liability an insured person assumes arising out of any contract or agreement.
16. We do not cover bodily injury or property damage caused by war or warlike acts, including, but not limited to insurrection, rebellion or revolution.
Coverage Y
Guest Medical Protection
Losses We Cover Under Coverage Y:
Allstate will pay the reasonable expenses incurred for necessary medical, surgical, x-ray and dental services, ambulance, hospital, licensed nursing and funeral services...
Each person who sustains bodily injury is entitled to this protection when that person is:
1. On the insured premises with the permission of an insured person, or
2. Off the insured premises, if the bodily injury:
a) arises out of a condition on the insured premises;
b) is caused by the activities of an insured person or a residence employee;
c) is caused by an animal owned by or in the care of an insured person; or
d) is sustained by a residence employee.
Losses We Do Not Cover Under Coverage Y:
1. We do not cover any bodily injury intended by or which may reasonably be expected to result from the intentional or criminal acts or omissions of the insured person...
10. We do not cover bodily injury arising out of the past or present business activities of the insured person.
14. We do not cover bodily injury which, in whole or in part, arises out of, is aggravated by or results from mold, fungus, wet rot or dry rot.

The policy language indicates that it is the "providing of home day care services to other than an insured person or relative of an insured person for economic gain" that constitutes a business. Thus, Defendant's taking care of her own grandchildren at her home does not constitute operating a day care business, i.e. it is not a business activity. Allstate does not argue otherwise and the majority agrees. Defendant's grandchild was placed under her care and supervision and she was responsible for that grandchild's actions. Any failure in Defendant's duty to supervise her grandchild (if such failure is factually established) makes her legally responsible for her actions unless otherwise exempted from such responsibility by contract. But the question of Defendant's duty to Averi and/or her grandchild is not determinative of liability for Averi's injuries. It is the source of the injury, i.e. who bit Averi, that determines liability and a fortiori whether such liability is excluded from coverage.

It is alleged that the source of Averi's injury is Defendant's grandchild. If this proves to be true at trial then the business exclusion relied on by Allstate will not apply, otherwise the recited policy provision exempting Defendant's grandchildren from inclusion in her business activity would have no meaning. Such an application would also render meaningless the phrase "arising out of" the business activity as such phrase turns on the source of the injury which would not be related to Defendant's business activities if that source, i.e. the biter, is Defendant's grandchild. The policy provides coverage for Averi's injuries, as recited above, under Coverage Y because she is a person "on the insured premises with the permission of [the] insured person."

I have included certain provisions of Allstate's policy in this discussion even though they have no direct relation to this case because the language in these provisions demonstrate that Allstate knows how to, and could have, written its business exclusion provision differently if it desired to. If Allstate intended for its business exclusion to reach the actions of Defendant's non-business related invitee (like her grandchild) it could have used language like it used elsewhere in the policy such as the phrase "caused by" used in relation to acts of war, or such as "reasonably expected to result from" like it used in the context of intentional or criminal acts. In each instance in the policy where Allstate employs the phrase "arises out of" it is clear this reflects the notion of the source of the "bodily injury or property damage." For example, under Coverage X, item 7, Allstate does not provide coverage for injury or damage "arising out of the negligent supervision by an insured person of any person, or any liability statutorily imposed on any insured person, arising from the ownership, maintenance, use, occupancy, renting, loaning, entrusting, loading or unloading of any aircraft, watercraft..." Thus, the source of such responsibility is the negligent supervision of any person loading or unloading a watercraft. Likewise, another example is found under Coverage X, item 15, in which Allstate's policy does not cover "any liability an insured person assumes arising out of any contract or agreement," clearly making the contract or agreement the source of such liability. If we accept Allstate's argument that the source of Averi's injury is Defendant's failure to perform her duty to supervise Averi implicitly required in her contract with the Latours, this provision would be applicable, yet Allstate does not maintain such an assertion. The only interpretation of this provision and the business exclusion provision that renders both meaningful is that "arising out of" in both instances means causality, i.e. the phrase speaks to the source of the injury. In the one provision the source of the injury must be the business activity to be excluded and in the other example from the policy the source must be the contract or agreement. The reason neither applies to Defendant's grandchild must be because the policy defines Defendant's care of her grandchild as not part of her day care business and the actions of her grandchild in biting Averi would not arise out of any contract or agreement.

Yet another example is found in Item 14 of the policy regarding mold, fungus, wet rot or dry rot. The policy specifically excludes coverage for bodily injury which "arises out of," in whole or in part, or "results from mold, fungus, wet rot or dry rot." But, as all of us in Louisiana are too well aware, hurricanes can cause much interior water damage which results in a great deal of mold, fungus or wet rot. Such damage is covered by the homeowner policy despite this typical mold exclusion because the hurricane is the source of the mold damage, thus the hurricane related mold damage does not arise out of mold caused by other means.

The majority's reliance on Elorza v. Massey , 00-313 (La.App. 5 Cir. 3/14/01), 783 So.2d 453, the trampoline case, is misplaced. In Elorza, the source of the injury was the defendant's day care business activity. In that case, Mrs. Massey testified she allowed her day care children to use her trampoline and was well aware the two children were on the trampoline together at the time of the accident. Clearly, the source of the plaintiff's injury in Elorza was the insured's business activity. Notably, in Elorza , the Louisiana Fifth Circuit found Jackson v. Frisard , 96-547 (La.App. 1 Cir. 12/20/96), 685 So.2d 622 not applicable because "in Jackson , application or not of the business exclusion depended on a determination of whether the insured's horseplay activities were business related." Elorza , 783 So.2d at 456. The majority ignores this discussion in Elorza and ignores the impact of Jackson on this case. In Jackson the court found the business exclusion policy provision not applicable to Defendant's liability for injuries caused by his horseplay with the plaintiff because the horseplay was not business related even though it occurred during a required training session:

We construe the policy language in question to provide coverage for acts which by their nature are not associated with the insured's business pursuits, but which are only casually related to the business activities. See New Jersey Property Liability Guaranty Assoc. [v. Brown ], 174 N.J.Super. [629] at 632, 417 A.2d [117] at 119 [ (1980) ] ; State Farm Fire and Casualty Co. v. National Union Fire Ins. Co., 87 Ill.App.2d 15, 230 N.E.2d 513, 516 (Ill.App.1967). The testimony was undisputed that none of the training maneuvers practiced during the session involved striking the back in any manner. Thus, we find Frisard's action of striking Jackson's back was not an activity associated with the defensive training session, but was in this instance only casually related to the business activity of the training session, and ordinarily incident to non-business pursuits. The trial court properly found the 'business pursuits' exclusion of the State Farm policy did not exclude coverage for Jackson's injuries resulting from the incident. We find no inconsistency in the trial court's findings on the issues of vicarious liability and insurance coverage.

Jackson v. Frisard , 96-0547 p. 18 (La. App. 1 Cir. 12/20/96), 685 So.2d 622, 631, writ denied , 97-0193 (La. 3/14/97), 689 So.2d 1386, and writ denied , 97-0201 (La. 3/14/97), 689 So.2d 1387. There was additional language in the Farm Bureau policy in Jackson that modified the business exclusion which made it clear that the business activities exclusion did not apply to actions "incident to non-business pursuits." Though that provision is not part of the current Allstate policy, it does contain a provision which amounts to the same thing, i.e., it provides that the business activities exclusion does not apply to Defendant and her relatives, which includes her grandchildren. Thus, under the rationale of Jackson , and Elorza when properly applied, Allstate's business activity exclusion does not apply to injuries caused by Defendant's grandchild while in her care because the Allstate policy defines such as a non-business activity.

For the reasons stated, Allstate is not entitled to summary judgment either as a matter of law or fact. I, therefore, respectfully dissent.

      Although a person who undertakes control and supervision of a child is not an insurer of the safety of the child, he is required to use reasonable care commensurate with the reasonably foreseeable risk of harm to which the child might be subjected while under his control and supervision. Blackledge v. Font, 2006-1092, p. 10 (La.App. 1 Cir. 3/23/07), 960 So.2d 99, 104 ; Freeman v. Wilcox, 303 So.2d 840, 842 (La.App. 1 Cir.1974), writ denied, 307 So.2d 630 (La.1975)...
      The level of supervision "required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances." Wallmuth, 2001-1779, 2001-1780 at p. 8, 813 So.2d at 346; Pierce, 2002-0139 at p. 4, 836 So.2d at 331. "Constant supervision of all [children or] students is not possible nor required ... to discharge [the] duty to provide adequate supervision." Id. To show that a duty to supervise has been breached, the plaintiff must prove that the risk of unreasonable injury was foreseeable, constructively or actually known, and preventable by the exercise of the required level of supervision. Pierce, 2002-0139 at p. 5, 836 So.2d at 332. If the alleged act of negligent supervision was unforeseeable, that is, it occurred suddenly and without prior warning, the "vast majority" of courts have refused to attribute fault to the accused defendant. Wallmuth, 2001-1779, 2001-1780 pp. 9-12, 813 So.2d at 347-49 (and cases cited therein); Blackledge, 2006-1092 at pp. 9-12, 960 So.2d at 104-05.
      Gordon v. Cornerstone Assembly of God Church , 07-1488 pps. 4-5 (La. App. 1 Cir. 3/26/08), 985 So.2d 762, 765.

      I note that a copy of the one-page contractual agreement signed by the Latours for Aviri's care with Mrs. Derouen states: "I will not hold Debbie Derouen legally responsible for any "accidents/injuries" that my child incurs while in her care." Both parents admit in deposition they signed this agreement.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Amethyst Baird RATHORE (AKA) Amethyst S. Baird, Appellant
    No. 52,386-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 16, 2019.
    LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III, Counsel for Appellant
    ROBERT S. TEW, District Attorney, JOHN G. SPIRES, GEARY S. AYCOCK, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, MOORE, and STEPHENS, JJ.
   MOORE, J.

The defendant, Amethyst Baird Rathore, was charged by grand jury indictment with attempted first degree murder of Wildlife Enforcement Officer Tyler Wheeler. The indictment also charged Rathore with obstruction of justice, illegal possession of stolen things, and illegal possession of a stolen firearm. Rathore entered guilty pleas to all four charges pursuant to a plea agreement. In exchange for the plea, the state agreed to dismiss a pending obstruction of justice charge in Ouachita Parish. There was no agreement regarding Rathore's sentence, and the state advised that it would file an habitual offender bill in accord with La. R.S. 15:529.1.

After the habitual offender hearing, Rathore was adjudicated a second-felony habitual offender based on her prior conviction for possession of methamphetamine. Following the sentencing hearing, the court sentenced Rathore to 60 years' imprisonment at hard labor for the attempted first degree murder conviction, 40 years' imprisonment for the obstruction of justice, 10 years' imprisonment for the illegal possession of stolen things, and 10 years' imprisonment for the illegal possession of a stolen firearm. All four sentences were imposed without benefit of parole, probation or suspension of sentence. The court subsequently signed a sentencing commitment order making the sentences concurrent with each other.

Rathore filed this appeal alleging that her sentences are excessive.

After review, we amend three of the sentences to allow for parole eligibility as required by law, and, as amended, we affirm.

FACTS

At the sentencing hearing, the victim, Wildlife and Fisheries Agent Tyler Wheeler, testified that on January 7, 2017, he was working the 2:00 pm to 2:00 am shift with his partner, Agent John Hattaway. After their shift ended, the two agents traveled to their respective homes in separate vehicles. On his way home, at about 2:10 am, Agent Wheeler encountered a white Jeep erratically moving side to side in the outside lane, repeatedly hitting the center line and the outside shoulder line of the roadway. Since this occurred in an area outside of Bastrop where there are several bars, Wheeler suspected that the driver was impaired. He activated his blue emergency lights to initiate a stop. However, instead of stopping, the Jeep switched to the inside lane, turned off the road and looped through a grass field on the south side of a bar located on Gus Pryor Road. The Jeep came to a stop against a grill on the side of the building. Agent Wheeler followed and parked his vehicle some 5 to 7 feet behind the Jeep.

Agent Wheeler approached the driver in the Jeep, whom he identified in court as Amethyst Rathore, and advised her why she had been stopped. She handed him an identification card, but it was for a juvenile, and Rathore was obviously not a juvenile. Agent Wheeler returned to his vehicle and performed a "Think Stream" check on the vehicle's license plate, which revealed the plate did not match a white Jeep. He notified dispatch of his findings. Agent Hattaway informed Agent Wheeler that he was en route to the scene.

Due to Rathore's rapid speech pattern, quick movements, and impaired driving, Agent Wheeler walked up to the Jeep and asked her to exit the vehicle for a field sobriety test.

Rathore did not respond to his request. Instead, she produced a silver revolver with a red laser attachment and shot Agent Wheeler from the outside driver's side window. Although Agent Wheeler testified that he recalled Rathore firing only once, the evidence indicates, and police believe, that she shot him three times. Wheeler ran to the back of the Jeep, but could not get his service weapon out of the holster. He ran behind a tree on the south side of the bar. Still unable to unholster his weapon, Agent Wheeler ran toward his truck to retrieve his rifle or shotgun but fell forward face down. He heard Rathore exit the Jeep and walk toward him. He then heard a gunshot and felt a punch to his upper back. Agent Wheeler heard Rathore's vehicle back up and leave the scene.

Within a minute after Rathore left the scene, Agent Hattaway arrived and called for medical assistance. Agent Wheeler was airlifted to University Health in Shreveport. Although he had been shot four times, Agent Wheeler testified that he did not realize that the first three shots had struck him. One entry wound under his left arm traveled upward and lodged around his collarbone, while two went through the left forearm into his head. The final shot by Rathore while she stood over him struck Agent Wheeler in the back. However, the bullet did not completely penetrate his armored vest, and left Agent Wheeler with a bruise.

Agent Wheeler testified that he remained at University Health for three to four weeks. Doctors removed his left jaw and right skull plate, and noted that a bullet which entered his left temple and ricocheted to the back of his skull still remains.

Rathore testified that she "did not fire any shot," as the gun just went off four times in succession, but that she had not aimed it. She stated that she never exited the vehicle to fire at Agent Wheeler, and he was still standing when she drove away. When asked how a bullet became lodged in the back of Agent Wheeler's vest, Rathore suggested that he might have been wearing it inside out. Rathore alleged that, several days before the shooting, she sustained a concussion during an altercation with her boyfriend; when she woke up the next day, she wasn't herself and was afraid of everything. When Agent Wheeler pulled her over, she was afraid of him as a result of the concussion. She testified that she pulled the gun out because she was afraid, not because she intended to shoot him.

On cross-examination, Rathore admitted that she did not seek medical attention for her alleged concussion, and that she was able to drive herself to Memphis, Tennessee, and back between sustaining the concussion and shooting Agent Wheeler. Rathore is 32 years old and has a nine-year-old daughter who lives with her sister in Charleston, South Carolina. She apologized to Agent Wheeler and his family.

Agent Ron Huey, of the Louisiana State Police, testified that in the course of his investigation of the shooting, he obtained text messages between Rathore and a witness, Ms. Starr. In messages sent in December 2016, Rathore acknowledged that the Jeep she was driving at the time of the offense was stolen, stating that the Jeep needed a new title and VIN. She also stated that she recently acquired a new handgun with a laser sight. Following the shooting, Rathore abandoned the Jeep near an RV park and instructed Ms. Starr to pick her up, saying that she had a life-and-death situation. Rathore told Ms. Starr that she had shot an officer because she had missed court and there was a warrant for her arrest. At Ms. Starr's residence, Rathore wiped down the gun and put it in a cabinet.

DISCUSSION

Excessive Sentence

In her sole assignment of error, Rathore alleges that her sentences of 60 years, 40 years, and two of 10 years, all at hard labor and all without benefit probation, parole or suspension of sentence, make the total sentence cruel and excessive. She asks this court to remand for resentencing.

To support her argument, Rathore maintains that facts established at the sentencing hearing showed that she had no intent to kill Agent Wheeler. Her actions, she argues, were due to the influence of a concussion that had been sustained several days before the shooting. Rathore expressed remorse for her actions, asserts that she has a nine-year-old daughter who depends upon her, and shows that this is her first conviction for a violent offense.

The state counters that Rathore's criminal history shows an escalation in the severity of offenses over a short period of time. This latest criminal action shows a blatant disregard and lack of respect for human life. Disputing her claim that she did not intend to shoot Agent Wheeler, the state stresses the fact that Rathore got out of the Jeep, walked up to Wheeler lying on the ground and shot him in the back, thereby showing that she had specific intent to kill him. The state urges that Rathore has shown little remorse, and attempted to excuse her criminal behavior by attributing her actions to an alleged concussion; the state concludes that Rathore has not shown that the trial court abused its discretion in sentencing.

This court applies a two-pronged test in determining whether a sentence is excessive. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. However, a trial court is not required to list every aggravating or mitigating circumstance, so long as the record reflects that it has adequately considered the guidelines of the article. State v. Smith , 433 So.2d 688 (La. 1983) ; State v. Watson , 46,572 (La. App. 2 Cir. 9/21/11), 73 So.3d 471. The goal of La. C. Cr. P. art. 894.1 is "articulation of the factual basis for a sentence, not rigid or mechanical compliance with its provisions." State v. Lanclos , 419 So.2d 475 (La. 1982).

Second, the reviewing court determines the issue of constitutional excessiveness. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith , 01-2574 (La. 1/14/03), 839 So.2d 1. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 01-0467 (La. 1/15/02), 805 So.2d 166. The trial court is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of this discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So.2d 7 ; State v. Diaz , 46,750 (La. App. 2 Cir. 12/14/11), 81 So.3d 228. In its review, the appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams , supra .

The habitual offender law has been found constitutional in its entirety, and the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672. The defendant has the burden to rebut the presumption that a mandatory minimum sentence is constitutional. This means she must clearly and convincingly show that her situation is exceptional, that because of unusual circumstances, the defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Johnson , supra ; State v. Henry , 42,416 (La. App. 2 Cir. 9/19/07), 966 So.2d 692, writ denied , 07-2227 (La. 8/29/08), 989 So.2d 95. Critically, a district court may not rely solely on the nonviolent nature of the instant crime or past crimes as evidence to justify rebutting the presumption of constitutionality. The lack of violence cannot be the only reason, or even the major reason, for declaring such a sentence excessive. Johnson , supra ; Henry , supra .

There is no statutory bar to applying the habitual offender law in sentencing for more than one conviction obtained on the same date, whether the convictions result from separate felonies committed at separate times or arise out of a single criminal act or episode. State v. Shaw , 06-2467 (La. 11/27/07), 969 So.2d 1233.

Our habitual offender law is promulgated in La. R.S. 15:529.1(A)(1) and provides in the case of a second-felony offender that, if the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction. The convictions in this case are: attempted first degree murder of a peace officer, which is punishable by 20-50 years' imprisonment at hard labor, without the benefits of parole, probation, or suspension of sentence ( R.S. 14:27 and 14:30 ); obstruction of justice, imprisonment for not more than 20 years at hard labor ( R.S. 14:130.1(B)(2) ); illegal possession of stolen things, when the value is $1,500 or more, imprisonment for not more than 10 years, with or without hard labor ( La. R.S. 14:69(B)(1) ); and, illegal possession of a stolen firearm, imprisonment for one to five years, with or without hard labor ( R.S. 14:69.1(B)(1) ).

In this case, the district court sentenced Rathore as second-felony habitual offender to 60 years' imprisonment at hard labor for the conviction of attempted first degree murder, 40 years' imprisonment for obstruction of justice, 10 years' imprisonment for illegal possession of stolen things, and 10 years' imprisonment for illegal possession of a stolen firearm. By operation of law, the sentences will be served concurrently. La. C. Cr. P. art. 883.

The record shows that after it reviewed the presentence investigation report and held a sentencing hearing in which both Agent Wheeler and Rathore testified, the district court specifically found the victim's testimony to be more credible. The court noted that Rathore testified that she kept four bullets in the gun, and she fired all four bullets at Agent Wheeler, striking him four times. The court found that her attempt to kill an officer by emptying a firearm at him is a serious and egregious offense.

The court stated that Rathore has a history of drug abuse, she was driving a stolen vehicle at the time of the offense, and the offense was committed with a stolen weapon. Rathore attempted to dispose of the vehicle and the weapon, thereby obstructing justice. Despite these circumstances, the court did not impose the statutory maximum for attempted first degree murder or for illegal possession of stolen things, as a second-felony habitual offender. The court did impose the maximum sentence for obstruction of justice and illegal possession of a stolen firearm.

We observe that while Rathore expressed remorse for injuring Agent Wheeler, she did not take responsibility for the shooting. Instead, she attributed her actions to a concussion without offering any evidence of such a condition, and she denied shooting Agent Wheeler in the back, despite evidence to the contrary. Following the shooting, Rathore attempted to conceal the offense by cleaning the weapon and trying to dispose of the Jeep. She denied these activities, leading the court to impose the maximum sentence for obstruction of justice.

Rathore's criminal history revealed that she was arrested four times in 2016, for increasingly serious offenses. On April 28, 2016, she was arrested in Ouachita Parish for simple burglary and illegal possession of stolen things, and charged with illegal possession of stolen things and criminal trespass. On November 4, 2016, while on bond, Rathore was arrested on six charges, including no driver's license in possession, taking contraband to a state-owned hospital, and possession of methamphetamine. Because Rathore missed her arraignment date in that case, the district court revoked her bond in both cases on January 10, 2017. These facts lend credence to Agent Huey's testimony that Ms. Starr reported that Rathore shot Agent Wheeler because there was a warrant for her arrest.

Based on our review of this case, including Rathore's increasing criminal activity in the year prior to this offense, the severity of the injuries sustained by the victim, the egregiousness of the offense, and the unwillingness of Rathore to take full responsibility for her actions, the sentences imposed do not shock the sense of justice, nor are they grossly disproportionate to the offenses. We conclude that the trial court was well within its discretion in imposing these sentences, which are not excessive. This assignment of error is without merit.

Error Patent Review

Our review of the sentences discloses that the sentences for obstruction of justice, illegal possession of stolen things, and illegal possession of a firearm were improperly imposed without the benefit of parole. La. R.S. 15:529.1(G) provides that any sentence imposed under the habitual offender statute "shall be at hard labor without benefit of probation or suspension of sentence." Parole is not included in the prohibition.

In Rathore's case, only attempted first degree murder is punishable by imprisonment without all three benefits. The sentences for obstruction of justice, illegal possession of stolen things, and illegal possession of a firearm were improperly imposed without the benefit of parole.

An appellate court is authorized to correct an illegal sentence pursuant to La. C. Cr. P. art. 882(A), when the sentence does not involve the exercise of sentencing discretion by the trial court. See State v. Haynes , 04-1893 (La. 12/10/04), 889 So.2d 224. The correction of this error does not involve sentencing discretion, as the imposition of the sentence without the benefit of probation or suspension of sentence is mandatory in the habitual offender statute.

Accordingly, we amend Rathore's sentences for obstruction of justice, illegal possession of stolen things, and illegal possession of a firearm to remove the prohibition against parole eligibility, and to reflect that they be served without benefit of probation or suspension of sentence.

CONCLUSION

For the reasons stated in this opinion, we amend the defendant's sentences for obstruction of justice, illegal possession of stolen things, and illegal possession of a firearm by removing the prohibition against parole but must be served without benefit of probation or suspension of sentence. In all other respects, the convictions and sentences are affirmed.

AFFIRMED AS AMENDED.

      Initially, the sentencing judge expressly declined to specify whether the sentences would run concurrently or consecutively, stating that he would leave that to the law.


author: KING, JUSTICE, FOR THE COURT:

text:
    Randy BINNING v. STATE of Mississippi
    NO. 2018-CA-00070-SCT
    Supreme Court of Mississippi.
    January 31, 2019
    ATTORNEY FOR APPELLANT: MARVIN M. VINING
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH, Jackson
    BEFORE KITCHENS, P.J., KING AND BEAM, JJ.
   KING, JUSTICE, FOR THE COURT:

¶1. The State of Arizona and Williams Gaming, Inc. (WMS), a manufacturer of electronic gaming machines, initiated a civil asset forfeiture against money Randy Binning had won, in part, in Tunica, Mississippi, casinos. Binning was indicted in Mississippi for violations of the Mississippi Gaming Control Act. A circuit court in Mississippi, however, dismissed all criminal charges against Binning with prejudice. Despite the dismissal of charges in Mississippi, the State of Arizona continues to prosecute the civil-forfeiture action. Binning now seeks a writ of prohibition clarifying to the state of Arizona that any further collateral attacks upon the dismissed criminal charges under Mississippi law should be barred as res judicata. Because Binning failed to provide sufficient authority that a court in Mississippi may issue a writ of prohibition to a court outside of the state, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

¶2. The general facts of this case are not in dispute. WMS admitted that it produced and sold to Caesars Entertainment Corporation (Caesars) a brand of Keno machines that were defective. When a player selected certain combinations of denominations and units to wager, the Keno games on those defective machines produced greater-than-normal pay tables. WMS admitted that the defect in those machines was due to its own inadvertent coding error and determined that no contact had occurred between any of its software engineers and Binning.

¶3. Binning, a professional gambler, learned of the particular combinations of denominations and units to wager in order to increase his odds of winning. In April 2013, Binning won money on defective Keno machines in both Tunica, Mississippi, and Joliet, Illinois. On April 29, 2013, during a traffic stop, law-enforcement officers in Coconino County, Arizona, seized more than $ 400,000 from Binning, a large portion of which Binning had won at Mississippi casinos.

¶4. A Tunica County grand jury indicted Binning on two counts of violating the Mississippi Gaming Control Act, Mississippi Code Sections 75-76-301(c) (Rev. 2016) and 75-76-311(2) (Rev. 2016). Binning also was indicted in Illinois. Following a bench trial in Illinois, all charges against Binning were dismissed. On June 30, 2015, the Mississippi circuit court also entered a pretrial order dismissing all charges against Binning with prejudice.

¶5. Although the charges against Binning were dismissed in Mississippi and Illinois, the State of Arizona and WMS continue to pursue civil forfeiture in Arizona. Binning faces forfeiture of the seized cash under Arizona Revised Statutes § 13-2301(D)(4), which provides in relevant part,

4. "Racketeering" means any act, including any preparatory or completed offense, that is chargeable or indictable under the laws of the state or country in which the act occurred and, if the act occurred in a state or country other than this state, that would be chargeable or indictable under the laws of this state if the act had occurred in this state, and that would be punishable by imprisonment for more than one year under the laws of this state and, if the act occurred in a state or country other than this state, under the laws of the state or country in which the act occurred, regardless of whether the act is charged or indicted, and the act involves either:
....
(b) Any of the following acts if committed for financial gain:
....
(v) Theft ....

Ariz. Rev. Stat. Ann. § 13-2301.

¶6. Binning filed an ex parte motion for extraordinary writ in the Circuit Court of Tunica County based on the Full Faith and Credit Clause of the United States Constitution. Binning asked the circuit court to issue an extraordinary writ "explaining to the Superior Court of Arizona, Coconino County, that the Mississippi Gaming Act provides the sole jurisdiction and remedies in this matter." Binning asked the court to direct the Arizona court to dismiss the pending civil-forfeiture proceeding against Binning's money because any controversy about the rightful owner of that money had been fully adjudicated as a matter of res judicata when all criminal charges against Binning were dismissed with prejudice.

¶7. The circuit court denied Binning's motion for extraordinary writ. The circuit judge found that, although he agreed with the substance of Binning's arguments, Binning had failed to cite sufficient authority to convince the court that it had the authority to issue a writ that would be binding on an Arizona court. Binning now appeals and seeks an extraordinary writ of prohibition clarifying to the State of Arizona or to any other third party that any further collateral attacks upon his dismissed criminal charges under Mississippi law are erroneous and should be barred as res judicata.

ANALYSIS

¶8. Binning contends that by continuing to pursue civil forfeiture after the charges against him have been dismissed in Mississippi, the State of Arizona is violating the Full Faith and Credit Clause of the United State Constitution. The Full Faith and Credit Clause provides that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." U.S. Const. art. IV, § 1.

¶9. Pursuant to the Mississippi Gaming Control Act (Act), the Mississippi Gaming Commission has exclusive jurisdiction over disputes between patrons and casinos arising from gambling debts. Ameristar Casino Vicksburg, Inc. v. Duckworth , 990 So.2d 758, 760 (Miss. 2008) ; Miss. Code Ann. § 75-76-5(k) (Rev. 2009). The circuit court found as a matter of Mississippi law that Binning did nothing unlawful in his having played Keno machines and dismissed all charges against him with prejudice. Binning argues that he played licensed and regulated gambling games in licensed and regulated casinos subject to the exclusive jurisdiction and remedies of the Gaming Commission and won money lawfully. Thus, because the action pending in Arizona for civil forfeiture is based on "theft," Binning argues that whether he committed theft according to Mississippi law was determined when the trial court dismissed all charges against him with prejudice. Binning contends that the question of theft should be considered settled as res judicata. See Harrison v. Chandler-Sampson Ins., Inc. , 891 So.2d 224, 232 (Miss. 2005) ("Under the principle known as "bar," res judicata precludes claims which were actually litigated in a previous action.").

¶10. Although Binning argues that the issue of theft is barred as res judicata, this Court finds that the relief Binning requests is unavailable. Binning argues that this Court has authority pursuant to Mississippi Code Section 9-1-19 to issue a remedial writ directing the Arizona court to dismiss the pending forfeiture action. Section 9-1-19 provides,

The judges of the Supreme and circuit courts and chancellors and judges of the Court of Appeals, in termtime and in vacation, may severally order the issuance of writs of habeas corpus, mandamus, certiorari, supersedeas and attachments, and grant injunctions and all other remedial writs, in all cases where the same may properly be granted according to right and justice, returnable to any court, whether the suit or proceedings be pending in the district of the judge or chancellor granting the same or not. The fiat of such judge or chancellor shall authorize the issuance of the process for a writ returnable to the proper court or before the proper officer; and all such process or writs may be granted, issued and executed on Sunday.

Miss. Code Ann. § 9-1-19 (Rev. 2014). Binning contends that, because the statute states that the Supreme Court may order the issuance of writs "returnable to any court," this Court has the authority to issue the requested writ to Arizona courts if justice requires doing so. However, an extraordinary writ of prohibition is not proper in this case.

¶11. "The writ of prohibition is of ancient origin, and as the name imports, is one which prohibits a judge or court from taking some action the judge or court is about to do in a legal action." State v. Maples , 402 So.2d 350 (Miss. 1981). This Court consistently has held that writs of prohibition are only to be issued "by a superior court to an inferior court." Id. at 352 ; see also 72A C.J.S. Prohibition § 1 (2018) ("Prohibition, or a 'writ of prohibition,' is a process by which a superior court prevents inferior courts, tribunals, officers, or persons from usurping or exercising a jurisdiction which they have not been vested by law."); Crittenden v. Town of Booneville , 92 Miss. 277, 45 So. 723, 726 (1908) ("The object of the writ is to restrain an inferior court from acting without authority of law in cases where wrong, damage, and injustice will follow such action.").

¶12. Binning provides no authority that a Mississippi trial court or this Court is superior to any Arizona court. Binning cites Fauntleroy v. Lum , 210 U.S. 230, 28 S.Ct. 641, 52 L.Ed.1039 (1908), to support his argument. There, the plaintiff entered into an illegal contract with the defendant in violation of both civil and criminal statutes of Mississippi. Id. at 233-34, 28 S.Ct. 641. When the defendant refused to pay, the plaintiff initiated an arbitration proceeding in Mississippi and won. Id. at 234, 28 S.Ct. 641. Because the defendant temporarily was located in Missouri, the plaintiff brought suit in Missouri to enforce the judgment. Id. The Missouri court refused to allow the defendant to show the nature of the transaction and to argue that the transaction was illegal in Mississippi. Id. The Missouri court then entered a directed verdict in favor of the plaintiff. Id. The plaintiff then brought suit in Warren County upon the Missouri judgment, and the defendant appealed the decision to the Mississippi Supreme Court. Id. The Mississippi Supreme Court found in the defendant's favor. Id. Aggrieved, the plaintiff appealed the case to the United States Supreme Court, which held that when the jurisdiction of the Missouri court is not open to dispute, the Mississippi Supreme Court was obligated to enforce the Missouri judgment, even if the Missouri judgment was based on a misapprehension of Mississippi law. Id. at 237, 28 S.Ct. 641.

¶13. In Fauntleroy , however, a writ of prohibition was not at issue and provides no authority that a court in Mississippi may issue a writ of prohibition to a court outside of the state. Because Binning failed to provide authority that a court in Mississippi is superior to a court in Arizona or that a court in Mississippi may issue a writ of prohibition to a foreign court, we affirm the judgment of the trial court.

¶14. The State additionally argues that the trial court lacked jurisdiction to rule on Binning's motion because Binning had not filed the motion properly. According to the State, the motion was not listed on the circuit clerk's docket and was not included in the appellate record. However, because Binning's appeal is without merit, determination of this issue is unnecessary.

CONCLUSION

¶15. Because Binning failed to provide sufficient authority supporting his claim that a court in the state of Mississippi has authority to issue a writ of prohibition to a foreign court, we affirm the decision of the trial court.

¶16. AFFIRMED.

RANDOLPH AND KITCHENS, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. WALLER, C.J., NOT PARTICIPATING.

      Also referred to in the record as "Bally's."


author: COLEMAN, JUSTICE, FOR THE COURT:

text:
    In the MATTER OF the Determination of Wrongful Death Heirs of Jeff UNDERHILL, Deceased:
    Joe Alexander v. Matthew Bryan DeForest
    NO. 2017-CA-00356-SCT
    Supreme Court of Mississippi.
    January 31, 2019
    ATTORNEY FOR APPELLANT: REGINALD PAUL HARRION, JACKSON
    ATTORNEYS FOR APPELLEE: KEN R. ADCOCK, WILLIAM C. IVISON, RIDGELAND
    BEFORE KITCHENS, P.J., KING AND COLEMAN, JJ.
   COLEMAN, JUSTICE, FOR THE COURT:

¶1. The instant appeal stems from Matthew Ryan DeForest's Petition for Determination of Heirs-At-Law and Wrongful Death Beneficiaries following the death of his natural father, Jeff Underhill. Joe Alexander, Underhill's brother, filed a responsive pleading to DeForest's petition raising numerous affirmative defenses; however, the Greene County Chancery Court held in favor of DeForest. The chancery court entered a judgment declaring DeForest to be sole heir at law for the purpose of the pending wrongful death action. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On July 20, 1977, Matthew Ryan Underhill was born to parents Jeff and Jenny Lee Underhill; soon thereafter Jeff and Jenny Lee divorced. Then, on October 25, 1983, Underhill voluntarily terminated his parental rights to allow Jenny Lee's then-husband, Steven Wayne DeForest, to adopt six-year-old Matthew. As a result, Matthew became Matthew Ryan DeForest. At the time of DeForest's adoption, he was a Michigan resident, and the termination of parental rights and adoption occurred in Michigan courts.

¶3. On November 3, 2015, Underhill was involved in a trucking accident in Greene County, Mississippi; Underhill died as a result. At the time of his death Underhill was unmarried, and he was a resident of Florida. Underhill owned no property in Mississippi and had no other connection to Mississippi apart from the fact that the accident and death had occurred here. DeForest filed a wrongful death complaint in the Greene County Circuit Court, and he then filed the instant petition in the chancery court to determine Underhill's heirs at law and wrongful death beneficiaries. In his petition, DeForest named Jeanne Elizabeth Tyler, Underhill's mother; Joe Alexander, Underhill's brother; Sam Underhill, Underhill's brother; Tyler Alexander, Underhill's brother; Luke Underhill, Underhill's brother; and other unknown heirs and wrongful death beneficiaries of Underhill. Of the persons listed, only Joe Alexander responded.

¶4. Alexander raised several affirmative defenses in his response, titled Affirmative Defense of Joe Alexander to the Petition for Determination of Heirs-At-Law And Wrongful Death Beneficiaries; Alternatively, Answer. He argued that DeForest's petition should be dismissed pursuant to Mississippi Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted; under Mississippi Rule of Civil Procedure 12(b)(4) for insufficient process and service of process; and under Mississippi Rule of Civil Procedure 12(b)(2) for lack of jurisdiction. He also claimed a lack of due process, a lack of standing, full faith and credit, and Mississippi Rule of Civil Procedure 8(c).

¶5. After a hearing, the chancery court ruled in favor of DeForest and declared him to be Underhill's sole heir at law and wrongful death beneficiary. Alexander filed a motion for rehearing, which the chancery court denied following a hearing. Aggrieved, Alexander raises the following issues on appeal:

I. Whether the [trial c]ourt properly determined that it had personal jurisdiction over the named Respondents?
II. Whether the [trial c]ourt properly denied full faith and credit to a foreign adoption order and its underlying statutory law and common law?
III. Whether the [trial c]ourt properly determined that a non-resident, adopted adult qualifies as an heir-at-law or wrongful death beneficiary?
IV. Alternatively, whether the [trial c]ourt had subject matter jurisdiction to determine heirs-at-law or wrongful death beneficiaries of a non-resident decedent who owned no real property within the State of Mississippi?

STANDARD OF REVIEW

¶6. It is settled that in reviewing appeals from chancery court, the "chancellor's findings of fact should not be interfered with unless they were 'manifestly wrong, clearly erroneous or an erroneous legal standard was applied.' However, the chancery court's interpretation and application of the law is reviewed under a de novo standard." Isom v. Jernigan , 840 So.2d 104, 106 (¶ 6) (Miss. 2003) (internal citations omitted). Jurisdiction is a question of law, which receives a de novo review on appeal. Entergy Miss., Inc. v. Burdette Gin Co. , 726 So.2d 1202, 1204-1205 (¶ 5) (Miss. 1998).

ANALYSIS

I. Personal Jurisdiction

¶7. In his first issue, Alexander argues that DeForest's petition should have been dismissed pursuant to Rule 12(b)(4) for lack of personal jurisdiction because process was insufficient. According to Alexander, he should have been served process consistent with Mississippi Rule of Civil Procedure 81(d)(1) as opposed to Mississippi Rule of Civil Procedure 4(b).

¶8. Alexander argues that the chancery court's judgment is void because it never had personal jurisdiction over him due to DeForest's failure to serve him with a Rule 81 summons. Alexander explains that "An action to determine heirship is governed by Rule 81(d)(1) for which a summons substantially conforming with Mississippi Rule of Civil Procedure Form 1(D) should issue to known and unknown respondents."

¶9. DeForest caused Alexander to be personally served with a summons via certified mail. The summons stated that a response must be mailed or delivered within thirty days from the date of the delivery. However, the record also contains another summons. The second summons is a summons by publication addressed to "The Unknown Wrongful Death Heirs, Executors, Administrators, Devisees, Legatees, or Statutory Beneficiaries ... of Jeff Underhill, Deceased, and Any and All Persons Claiming to be a Wrongful Death Beneficiary of Jeff Underhill, Deceased." The body of the summons contained the following statement: "The only other respondents other than you in this action are Jeanne Elizabeth Tyler, Joe Alexander, Sam Underhill, Tyler Alexander, and Luke Underhill." Additionally, the summons required anyone claiming to be a wrongful death beneficiary "to appear and defend against the Petition filed by Matthew Bryan DeForest against you in this action 9:30 A.M. on the 21st day of October, 2016, ...." DeForest's position is that, cumulatively, the personal summons and summons by publication gave Alexander sufficient notice as required by law.

¶10. We hold that in the instant case, the Rule 4 summons was sufficient, as the instant matter to determine wrongful death beneficiaries is not one of a determination of heirship as contemplated by Rule 81. In Long v. McKinney , 897 So.2d 160, 175-76 (¶ 67) (Miss. 2004), we explained, "Although there is no specific mandated procedure for the identification of wrongful death beneficiaries, a chancery court may make such determinations; those persons bringing the wrongful death action, together with their counsel, have a duty to identify the beneficiaries, and they should do so early in the proceedings." Further, the Court has explained on several occasions that a "wrongful death action is not part of the estate of the deceased, and only those individuals listed in the wrongful death statute may bring this independent cause of action." Pannell v. Guess , 671 So.2d 1310, 1313 (Miss. 1996) (citing Partyka v. Yazoo Dev. Corp. , 376 So.2d 646, 650 (Miss. 1979) ).

¶11. Though there is much terminology overlap and mirroring of language between a determination of heirs for the purpose of an estate and a determination of wrongful death beneficiaries, the only possible issue before the chancery court at the time was a determination of wrongful death beneficiaries, which is a different animal than a determination of heirship as governed by Mississippi Code Section 91-1-29. A determination of wrongful death beneficiaries does not require a Rule 81 summons; therefore, the Rule 4 summons DeForst caused to be served on Alexander was sufficient for the chancery court to obtain jurisdiction.

II. Full Faith and Credit

¶12. The meat of Alexander's appeal is that the chancery court erred in naming DeForest as sole wrongful death beneficiary when Underhill's parental rights had been terminated by a Michigan court order and DeForest had been adopted. Key to Alexander's argument is Michigan's adoption statute, which provides,

After entry of the order of adoption, except as provided in section 2114(2) of the estates and protected individuals code, 1998 PA 386, MCL 700.2114, an adopted child is no longer an heir at law of a parent whose rights have been terminated under this chapter ... or collateral kindred of that parent, nor is an adopted adult an heir at law of a person who was his or her parent at the time the order of adoption was entered or the lineal or collateral kindred of that person, except that a right, title, or interest that has vested before entry of the final order of adoption is not divested by that order.

Mich. Comp. Laws Ann. § 710.60 (Rev. 2006) (emphasis added). Thus, according to Alexander, the chancery court should have given full faith and credit to "the Michigan court orders and that state's underlying statutory and common law." By giving full faith and credit to the Michigan orders terminating Underhill's parental rights and the subsequent order granting DeForest's adoption, and taking into consideration Michigan's adoption statute prohibiting an adopted child from being an heir at law of a natural parent, Alexander argues that DeForest cannot be a wrongful death beneficiary in the instant case because he is no longer an heir of Underhill.

¶13. DeForest argues that, "In Mississippi, when an alleged wrongful death occurs in Mississippi, then Mississippi law and the Mississippi wrongful death statute applies to determine the statutory wrongful death beneficiaries." The chancery court agreed, citing Estate of Jones v. Howell , 687 So.2d 1171 (Miss. 1996).

¶14. In Howell , the Court was faced with a similar scenario wherein Warren County Chancery Court held that the decedent's natural son, who had been adopted by another man, was a wrongful death beneficiary. Howell , 687 So.2d at 1173. The Court explained that it had

previously addressed the issues now before this Court in Alack v. Phelps , 230 So.2d 789, 793 (Miss. 1970), and Warren v. Foster , 450 So.2d 786 (Miss. 1984). In [both cases], this Court held that an adopted child could inherit from his natural parent or parents. Moreover, in Alack , this Court held than an adopted child could bring a wrongful death action for his natural father's death.

Id. The decedent's natural son, Samuel Howell, had been adopted by the natural mother's new husband; the adoption had occurred in Louisiana. Id. at 1174. The Court summarized the appellant's arguments as follows:

The Estate argues that when we read [ Mississippi Code Annotated Section] 11-7-13 (Mississippi's wrongful death statute) in pari materia with[ Mississippi Code Annotated Section] 93-17-13 (Mississippi's adoption decree statute), we must conclude that the legislature intended that Samuel Howell Clinton's rights to bring a wrongful death action for his natural father's death be terminated at the time of adoption. Further, the Estate argues that this Court is obligated under the Full Faith and Credit Clause, Article I, Section 4, of the United States Constitution to apply Louisiana's adoption law to the case sub judice. Specifically, the Estate argues that because Samuel Clinton Howell was adopted in Louisiana, we must look to Louisiana law to determine whether or not an adopted child can inherit from his natural parent. Under Louisiana decisional law, the Estate contends, a child who has been given up for adoption cannot inherit from his natural parent or parents. See Simmons v. Brooks , 342 So.2d 236 (La. App. 4th Cir. 1977).

Id. The Court then thoroughly addressed the issue and argument presented. Relevant to the instant case is the following:

When dealing with the issue of adopted children bringing wrongful death actions for the death(s) of their natural parent(s), this Court has looked to Mississippi case law which holds that an adopted child can inherit from his natural parent(s). See , e.g., Sledge v. Floyd , 139 Miss. 398, 104 So. 163 (1925). This Court, by analogy, has cited our law allowing adopted children to inherit from their natural parents and applied the inheritance rule to wrongful death situations and, thus, allowed an adopted child to bring a wrongful death action for the death of his or her natural parent. See , e.g., Alack . We also note that none of the statutes in question, i.e., Section 11-7-13 or Section 93-17-13, specifically prohibits an adopted child from bringing a wrongful death action for his natural parent's death. In fact, Section 93-17-13 only goes so far as to take away the natural parent's and sibling's right to inherit from, and bring a wrongful death action for the death of, a child given up for adoption. McLemore [v. Gammon ], 468 So.2d [84] at 84 [ (Miss. 1985) ]. Section 93-17-13 does not expressly take away the adopted child's rights to inherit from the natural parent or to bring a wrongful death action for the natural parent's death.
Moreover, Section 11-7-13 does not distinguish between the types of children entitled to bring a wrongful death action for the death of a parent, i.e., natural or adoptive. The statute provides that the suit may be brought "in the name of a child for the death of a parent." Miss. Code Ann. § 11-7-13 (1972). While Samuel Clinton Howell was not Jones' legal child, he certainly was his biological and natural child. Mississippi's wrongful death statute allows an illegitimate child to bring a wrongful death action for the death of his parent provided the child complies with Section 91-1-15 of the Mississippi Code of 1972. It would be illogical to conclude that the legislature would allow an illegitimate child, who might have never had any interaction at all with his parent or have ever been recognized by the parent, to bring an action for that parent's wrongful death, and yet conclude that the legislature would then prohibit a child who had lived with the natural parent and was later given up for adoption from bringing a wrongful death action for the natural parent's death.
The Estate also argues that the Louisiana adoption of Samuel Clinton Howell took the form of a termination of parental rights as to Jones. The Estate offers Miss. Code Ann. § 93-15-109 for the proposition that the chancery court can terminate an adopted child's right to inherit from his or her natural parents. The Estate's reliance upon Section 93-15-109 is misplaced because the cited statute, although not factually applicable in this case, does not specifically divest an adopted child of his right to bring a wrongful death action for a natural parent's death.

Id. at 1176-77. The Court has squarely addressed a nearly identical issue, and in that case held that the natural son was a wrongful death beneficiary, despite the fact that the state where the adoption and termination of parental rights occurred prohibited him being considered a wrongful death beneficiary.

¶15. Alexander attempts to distinguish Howell by saying that the natural son in Howell was still a minor at the time of the wrongful death action and that the chancery court's decision to include him as a wrongful death beneficiary was an exercise of the chancery court's charge to protect the interest of minors. Alexander also argues that "the Louisiana law considered in Howell was decisional, common law and not statutory law, which is an important distinction in this case." Alexander pulls from the Court's opinion the language that "[u]nder Louisiana decisional law, the Estate contends, a child who has been given up for adoption cannot inherit from his natural parent or parents." Id. at 1174. In Howell , the Court discussed and relied on Alack v. Phelps , 230 So.2d 789, 793 (Miss. 1970) (emphasis added) (quoting 2 C.J.S. Adoption of Children § 63(c) (1936) ), where the Court held,

In the absence of a statute to the contrary , although the child inherits from the adoptive parent, he still inherits from or through his blood relatives, or his natural parents. In view of the tendency of the courts to construe adoption statutes so as to benefit the child, as pointed out above in § 6 of this Title, and also, in in [sic] view of the fact that a statute severing the relation between parent and child is in derogation of common law and should for that reason be strictly construed, it has been held that an adoption statute providing that the natural parents shall be divested of all legal rights and obligations with respect to such child should not be construed so as to deprive the child of it [sic] right to inherit from or through its natural parents. Under such a statute it cannot be assumed that the adopted child cannot inherit from its natural parent unless there is an express legislative declaration to that effect.

It appears that Alexander is arguing that the Michigan adoption statute is such a statute as contemplated by Alack . We are not persuaded by Alexander's attempt to distinguish Howell , and we hold that the trial court did not err in relying on Howell and in determining that DeForest was Underhill's sole wrongful death beneficiary.

III. Subject Matter Jurisdiction

¶16. In his final issue, Alexander argues that the chancery court did not have subject matter jurisdiction to determine Underhill's heirs at law. Underhill was not a resident of Mississippi nor did he have any real or personal property located within Mississippi. He has no estate open or pending in a Mississippi chancery court. The only action in Mississippi is the pending wrongful death action in Greene County Circuit Court. We agree that the chancery court did not have subject matter jurisdiction to determine Underhill's heirs at law; however, the chancery court did not determine Underhill's heirs at law. Because of the pending wrongful death action, the chancery court did have subject matter jurisdiction to determine Underhill's statutory wrongful death beneficiaries, and chancery court did exactly that. The chancery court found "that Matthew Bryan DeForest is the sole and only heir-at-law of the decedent for the purposes of the wrongful death action ." Although the chancery court's wording illustrates the potentially pernicious overlap in terminology, the chancery court's finding is narrowly tailored to the wrongful death action. Any reading of the chancery court's judgment to imply that the heirs at law for the purpose of his estate have been determined by the chancery court is mistaken.

CONCLUSION

¶17. The chancery court had personal jurisdiction over Alexander and subject matter jurisdiction to determine the proper wrongful death beneficiaries in the instant case. Finding no error, we affirm the chancery court's determination that DeForest is Underhill's sole wrongful death beneficiary.

¶18. AFFIRMED.

RANDOLPH AND KITCHENS, P.JJ., KING, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. WALLER, C.J., NOT PARTICIPATING.

      We address Alexander's second and third issues in one section.