author: KITCHENS, Justice, PIERCE, Justice,

text:
    Relious DENSMORE v. STATE of Mississippi.
    No. 2008-KA-00981-SCT.
    Supreme Court of Mississippi.
    Nov. 19, 2009.
    Rehearing Denied Feb. 25, 2010.

      Office of Indigent Appeals by Hunter Nolan Aikens, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Laura H. Tedder, attorneys for appellee.
    Before WALLER, C.J., DICKINSON and KITCHENS, JJ.
   KITCHENS, Justice,

for the Court.

¶ 1. Following a jury trial, Relious Dens-more was found guilty of one count of sale of cocaine and was sentenced to serve thirty years as an habitual offender pursuant to Mississippi Code Section 99-19-81 (Rev.2007). Finding that the State fell short of its duty to disclose evidence, we reverse the conviction and remand for a new trial.

Facts

¶ 2. The State’s main witness was Cecil Spraggins, who worked as a confidential informant for the Meridian Police Department and the Lauderdale County Sheriffs Department (East Mississippi Drug Task Force). On August 15, 2007, Spraggins agreed to try to purchase drugs from a certain woman, under the supervision of four task force agents. According to the agents’ testimony, Spraggins was given seventy dollars to buy drugs from the woman. The agents searched Spraggins and his vehicle before he attempted the undercover buy, and they concealed audio and video surveillance equipment on his person.

¶ 3. With the investigating agents following, Spraggins drove to the suspect’s home. Spraggins testified that, upon entering the residence, he was greeted by a white male and was told that the female suspect was in the shower. Spraggins also testified that a black male, later identified as Densmore, came from the back of the home. According to Spraggins, Spraggins asked Densmore, whether he, Densmore, had the “sixty.” Densmore responded, “[y]es, sir, I do.” Spraggins testified that he bought sixty dollars’ worth of cocaine from Densmore and exited the home with this contraband.

¶4. Spraggins drove back to the task force headquarters to hand over the cocaine he had purchased. Once again, the agents searched his person and vehicle. A field test indicated that the purchased substance was cocaine. Later testing at the Mississippi Crime Laboratory revealed that the substance contained 0.7 grams of cocaine base.

¶5. Upon viewing the video recording, the agents discovered that no sound had been recorded during the transaction. The agents, however, had been able to maintain contemporaneous audio surveillance in their cars during the drug buy. Although the recording was inaudible, the video images were clear, and the agents recognized Densmore as the black male who had made the sale. The agents then showed Spraggins a photographic lineup, and Spraggins identified Densmore’s photograph as that of the person who had sold him the cocaine. While the video showed Densmore pulling the substance out of his pocket, it did not show a money-drug transfer. Because the surveillance equipment was attached to Spraggins’s person, he is not shown in the video.

¶ 6. On January 4, 2008, Densmore entered a plea of not guilty. Although the record does not indicate whether there was a written discovery request, on January 9, 2008, the defense received discovery information and material from the State. Trial was set for February 4, 2008, but a continuance was granted, and the trial was reset for March 19, 2008. It is not clear from the record who, if anyone, moved to continue the trial.

¶ 7. The morning of trial, Densmore announced that he would not accept the State’s plea bargain offers and instead would go to trial. That day, prior to commencement of the trial, the State informed the defense of the confidential informant’s identity and the existence of a taped confession, neither of which had been included in the discovery material. According to the prosecutor, the State withheld Sprag-gins’s identity until the morning of trial because it was his office’s “policy not to reveal the name of the confidential informant until plea negotiations were concluded and it was certain the case was going to trial.”

¶ 8. During the pretrial motion hearing on the day of trial, Densmore moved for a continuance in order to obtain private counsel in place of his court-appointed attorney. In the alternative, he requested that a continuance be granted in light of the newly-disclosed identity of the confidential informant, Spraggins, and the taped confession.

¶ 9. The trial judge ruled that the taped confession could not be used as evidence in Densmore’s trial. He also granted a brief continuance, lasting approximately three and a half hours, to allow the defense an opportunity to view the taped confession and to obtain information about Spraggins from the National Crime Information Center (NCIC). After seeing and hearing the confession tape, the defense filed a written motion for a continuance based on the newly-revealed evidence, but the trial judge overruled the motion as “not meritorious.”

Discussion

¶ 10. Densmore contends that the eleventh-hour disclosure of the State’s confidential informant was manifestly unjust and prejudicial, and that the trial court erred in refusing to grant his motion for a continuance.

¶ 11. “The purpose of pre-trial discovery is to avoid ambush or unfair surprise to either party at trial.” Blanton v. State, 727 So.2d 748, 752 (Miss.App.1998) (citing Frierson v. State, 606 So.2d 604, 607 (Miss.1992)). Rule 9.04(A)(1) of the Uniform Circuit and County Court Rules provides that the prosecution shall disclose the names and addresses of all witnesses in chief, proposed to be offered by the prosecution at trial. Miss. Unif. Cir. & Cty. R. 9.04(A)(1). Rule 9.04(B)(2) provides that the “the informant’s identity must be disclosed if a failure to disclose would infringe upon the constitutional rights of the accused or unless the informant was or depicts himself/herself as an eyewitness to the event or events constituting the charge against the defendant.” Miss. Unif. Cir. & Cty. R. 9.04(B)(2).

¶ 12. In the case at bar, Spraggins was the State’s main witness and the only eyewitness to the events giving rise to the charge against Densmore. In accordance with Rules 9.04(A)(1) and 9.04(B)(2), the prosecution was required to disclose Spraggins’s name and address to Dens-more prior to the day of trial.

¶ 13. In Box v. State, 437 So.2d 19 (Miss.1983), the defendant was charged with armed robbery, and the State did not disclose the identity of the owner of the automobile allegedly used to perpetrate the robbery, a crucial witness, until the evening before the trial began. Id. at 20. This material witness was allowed to testify at trial, over the defense’s timely objection, depriving the defense of adequate time to prepare for trial. Id. at 21. This Court held that reversal was required, reasoning that justice is better served when the accused knows “reasonably well in advance of trial what the prosecution will try to prove and how it will attempt to make its proof which, of course, includes the names of persons the State expects to call as witnesses.” Id.

¶ 14. Similar to Box, the State in the present case did not divulge the identity of the confidential informant, Spraggins, until the day of trial. Although the defense timely asked for a continuance, the trial proceeded in short order, and Spraggins was allowed to testify. The criminal discovery rules of this state were not enforced, and as the Box opinion recognized, “[a] rule which is not enforced is no rule.” Box, 437 So.2d at 21.

¶ 15. We recently reaffirmed our adherence to the rule announced in Box. In Fulks v. State, 18 So.3d 803 (Miss.2009), a unanimous decision, this Court reversed a conviction of armed robbery where the State waited until the day before trial to inform the defense that a key witness had changed his story to implicate the defendant. The Court reiterated the reasons behind the need for a continuance in light of last-minute disclosures of material evidence:

When a prosecutor reveals evidence on the eve of trial that should have been disclosed earlier, and when that evidence completely undercuts the defense’s theory of the case and renders most of its trial preparations worthless, then the only effective remedy is a continuance. Otherwise, the defense attorney is left with inadequate time and opportunity to investigate the newly arisen evidence, evaluate its trustworthiness, discuss its implications with his client, allow time for due consideration thereof, and, if necessary, to develop a new trial strategy-

id at 10.

¶ 16. In some cases, a Box violation may require only a brief continuance. Id. at n. 3. (citing Reuben v. State, 517 So.2d 1383, 1386 (Miss.1987)). In the ease sub judice, the trial judge did grant a brief recess to allow Densmore to examine information about Spraggins from the NCIC report. However, “merely giving defense counsel a recess within which he may interview the newly-found witness or examine the newly-discovered document is not sufficient to prevent prejudice to the defendant.” Box, 437 So.2d at 24 (Robertson, J., concurring) (emphasis in original). As Justice Robertson explained in his concurring opinion, “there may be a dozen other ways to impeach or discredit the witness, if counsel only had time to develop and pursue his leads.” Id. In this case, Densmore’s attorney should have been granted time to pursue all avenues of impeachment, not just the NCIC report.

¶ 17. Finally, the State argues that Densmore has failed to preserve the denial of a continuance for appellate review because he did not reassert the issue in his motion for a new trial. Generally, the failure to grant a continuance must be included in a motion for a new trial to preserve the issue for appellate review. Shelton v. State, 853 So.2d 1171, 1182 (Miss.2003) (citing Crawford v. State, 787 So.2d 1236, 1242 (Miss.2001)). However, in examining the reasoning behind the rule, we conclude that in cases where the motion for a continuance is based upon a last-minute disclosure of a key piece of evidence, the defendant is not required to reassert the error in a motion for new trial.

¶ 18. The purpose of the rule is (1) to “assure an adequate record for considering the issue” and (2) “to give the trial judge, who is so much closer to the scene than we, every opportunity to act prior to the expensive and time-consuming process of appellate review.” Gowdy v. State, 592 So.2d 29, 33 (Miss.1991). See also Colson v. Sims, 220 So.2d 345, 347 n. 1 (Miss.1969). Such reasoning makes sense in light of the statute which governed continuances prior to the adoption of Mississippi’s Uniform Rules of Circuit and County Court Practice, as that statute only contemplated continuances because of an absent witness or a missing document. Miss. Code Ann. § 99-15-29 (Rev.2007). In such instances, the trial judge could not properly pass on the issue without receiving evidence of the witness’s testimony or the contents of the documents, and a post-trial motion was necessary to ensure an adequate record. See King v. State, 251 Miss. 161, 171-172, 168 So.2d 637, 641 (1964); Lamar v. State, 63 Miss. 265 (1885).

¶ 19. Yet, in cases involving last-minute disclosure of witnesses, a post-trial motion does nothing to further these goals, because the trial judge has already ruled on the issue, and the error is clear from the record. As this Court has clearly recognized, “it is not necessary to make a motion for a new trial grounded upon errors shown in the official transcript of the record, including the pleadings, transcribed evidence, instructions, verdict and judgment of the court.” Colson, 220 So.2d at 347 n. 1. In the present case, we are in a position to find that Densmore was denied a fair and adequate opportunity to prepare for trial, and a post-trial motion reasserting this error would not have developed the record further. Therefore, Densmore was not required to reassert this issue in a motion for new trial.

¶ 20. Given our clear precedent on such matters, the trial court erred by refusing to grant a continuance when the State did not disclose the identity of its star witness until the morning of trial. Densmore’s conviction is reversed and the case is remanded for a new trial.

¶ 21. REVERSED AND REMANDED.

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

PIERCE, Justice,

Dissenting.

¶ 22. I write separately in dissent because I do not think that the defendant is entitled to a new trial. Uniform Circuit and County Court Rule 9.04 governs what is required to be produced during discovery and regulates the procedure for dealing with discovery violations. The rule states in pertinent part that:

[T]he prosecution must disclose to each defendant or to defendant’s attorney, and permit the defendant or defendant’s attorney to inspect, copy, test, and photograph upon written request and without the necessity of court order the following which is in the possession, custody, or control of the State, the existence of which is known or by the exercise of due diligence may become known to the prosecution:
Names and addresses of all witnesses in chief proposed to be offered by the prosecution at trial, together with a copy of the contents of any statement, written, recorded or otherwise preserved of each such witness and the substance of any oral statement made by any such witness....;

Miss. Unif. Cir. & Cty. R. 9.04(A)(1) (emphasis added). The rule also spells out specifically what must be done when a confidential informant (Cl) is part of the prosecution’s case. The rule reads:

Disclosure of an informant’s identity shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose his/her identity will infringe the constitutional rights of the accused or unless the informant was or depicts himself/herself as an eyewitness to the event or events constituting the charge against the defendant.

Miss. Unif. Cir. & Cty. R. 9.04(B)(2). The rule requires that disclosure must be made when the Cl is an eyewitness to the events giving rise to the prosecution, as was the case here. Id. The rule also requires a written request be made in order to trigger the State’s requirement to provide discovery. Miss. Unif. Cir. & Cty. R. 9.04(A)(1). The record in the case sub judice reveals no such request was ever made until the morning of the trial.

¶ 23. Rule 9.04 and its predecessor, Rule 4.06, maintain that a written request is required to trigger the prosecution’s duty to provide discovery. Miss. Unif. Cir. & Cty. R. 9.04; Swinford v. State, 653 So.2d 912 (Miss.1995); Moore v. State, 536 So.2d 909 (Miss.1988). However, “where the state volunteers discovery in the absence of a discovery order or written request, it may not then withhold discovery it would otherwise be obligated to disclose.” Moore, 536 So.2d at 911. In Stewart v. State, 512 So.2d 889, 892 (Miss.1987), we reversed a conviction because the State withheld discovery until the day before trial,' and we stated, “Discovery, to be sufficient, must be made at a time far enough in advance of trial to give the defense a ‘meaningful opportunity’ to make use of it.” Stewart, 512 So.2d at 892. See also Turner v. State, 501 So.2d 350 (Miss.1987); Gray v. State, 487 So.2d 1304 (Miss.1986); Henry v. State, 484 So.2d 1012 (Miss.1986); McKinney v. State, 482 So.2d 1129 (Miss.1986).

¶ 24. Rule 9.04 and other discovery guidelines were designed to avoid ambush or unfair surprise to either party at trial. Holland v. State, 587 So.2d 848, 866-67 (Miss.1991). Where the State is tardy in furnishing discovery which it was obligated to disclose, the defendant is entitled upon request to a continuance of the proceedings reasonable under the circumstances. Foster, 484 So.2d 1009, 1011 (Miss.1986) (citing Henry v. State, 484 So.2d 1012, 1014 (Miss.1986); McKinney v. State, 482 So.2d 1129, 1131 (Miss.1986); Cabello v. State, 471 So.2d 332, 343 (Miss.1985), cert. denied 476 U.S. 1164, 106 S.Ct. 2291, 90 L.Ed.2d 732 (1986); Box, 437 So.2d at 26 (Robertson, J., concurring)). Despite all of this, a defendant still should show that the lack of discovery prejudiced him or worked to his detriment. Hunt v. State, 687 So.2d 1154, 1164 (Miss.1996).

¶ 25. Despite the clarity of these rules, there may still be discovery violations because the prosecution fails to reveal the identity of a confidential informant. Rule 9.04 applies to situations such as this and requires that:

If at any time prior to trial it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter such other order as it deems just under the circumstances.

Miss. Unif. Cir. & Cty. R. 9.04(1)

¶ 26. This Court has held that “an accused’s remedy for tardy disclosure of that to which he is entitled in pre-trial discovery is a continuance that is reasonable under the circumstances.” Dowbak v. State, 666 So.2d 1377, 1885 (Miss.1996) (citing Middlebrook v. State, 555 So.2d 1009 (Miss.1990)); Moore v. State, 536 So.2d 909, 911 (Miss.1988). We have previously noted that the timing of a continuance may vary, as it does not have to be to the next term of the court, but may be only a matter of hours or even minutes. Foster v. State, 484 So.2d 1009 (Miss.1986). The length of the continuance is governed by what is reasonable under the circumstances. Id. This rule was developed in a case involving the failure to disclose a confidential informant. See id.

¶27. Based on the rules as set out above, in the case sub judice, the State would not have been required to disclose any discovery, as no written request was received until the morning of the trial. Miss. Unif. Cir. & Cty. R. 9.04(A). However, consistent with the holding in Moore, since the State volunteered discovery, it was then bound to produce the remainder of evidence that was discoverable, and the failure to do so was a discovery violation. Moore, 536 So.2d at 911. While I agree with the holding in Moore, it is distinguishable from the facts in this case. The argument in that matter centered around the disclosure of a confession taken by a police officer and logged in his report. Id. The State then produced discovery, which included a statement that the State had no recorded statements by the defendant to any law enforcement officers. Id. The State thereafter supplemented discovery, and again failed to note the existence of a specific inculpatory statement. Id. Finally, shortly before the jury was selected, the State produced this statement. Id. The judge then denied the motion for a continuance, and this Court held that there was a discovery violation, and the denial of the continuance was reversible error. Id. This Court reiterated in Moore that this sort of trial by ambush or surprise is exactly what the rules of discovery were designed to prevent. Id.

¶ 28. In this case, the State provided discovery on January 4, 2008. A continuance was granted, changing the date of the trial from February 4, 2008, to March 19, 2008. Plea negotiations were ongoing throughout this period and culminated with the defendant rejecting the State’s final offers on the morning of the trial. Counsel for the defendant then presented the State with a letter requesting the identity of the informant for the first time. The defendant made no other request for discovery nor did he attempt to find the identity of the Cl until the morning of the trial. The defendant had known since he received the indictment, that the State had alleged Densmore had sold illegal drugs to a confidential informant, yet he never requested the identity of the Cl until the morning of the trial. While I reiterate the holding in Moore, I also believe that a defendant should not simply sit back and wait for the State to provide him with all discovery and then claim error when it does not follow through.

¶ 29. A defendant has an affirmative duty to request discovery even if it is nothing more than a one-sentence request to the State. Miss. Unif. Cir. & Cty. R. 9.04(A). Similarly, the State also has a duty to follow the rules of discovery. It is inconsistent with the rules for the prosecution to maintain a policy that it will not disclose the identity of a confidential informant before plea negotiations end. While I believe this policy is held in good faith and not done to prejudice a defendant, Rule 9.04 does not leave this area open for interpretation, as it states conclusively that the identity of a Cl must be disclosed if he/she is an eyewitness to the alleged crime. Miss. Unif. Cir & Cty. R. 9.04(B)(2). Nonetheless, counsel for the defendant was aware of the existence of a Cl, as he was in possession of the video showing the alleged drug transaction, and the indictment stated the transaction took place using an informant. Therefore, this defendant could not have been surprised by the testimony of the Cl, as was the case in Moore, where a confession was withheld. Moore, 536 So.2d at 911.

¶ 30. As for the granting of the continuance, there is no shortage of cases which involve the failure to disclose the identity of a confidential informant. However, pri- or cases have not presented a situation such as this, where a short continuance was granted in order to review facts and information about the Cl. As previously stated, I believe that defense counsel may not sit back and wait to be endowed with all the discovery available to the State. In this case, the trial court did grant a continuance, but did not rule on the record concerning whether there was a violation. Nonetheless, in this case, any discovery violation was cured by a continuance reasonable under the circumstances.

¶ 31. This Court continually has noted that there are circumstances in which a continuance need be for only a matter of hours or minutes. Foster, 484 So.2d at 1011. This rule was announced in Foster v. State, in which this Court discussed the failure to disclose the identity of a CL Id. While the trial court did not originally grant a continuance in that matter, this rule was nonetheless developed, signaling the Court’s willingness to accept a short continuance where the identity of a Cl was involved. Id. In this case, the trial court did grant a continuance for approximately three and a half hours so the defense could run a National Crime Information Center check on the Cl. Furthermore, the testimony of the Cl was not heard until the second day of trial, which allowed the defendant to further develop his defense. The NCIC check was important in allowing the defense to view the criminal record of the Cl so that defense counsel could properly cross-examine and attempt to impeach his testimony. The defense was given adequate time and properly brought forth the many prior criminal convictions of the Cl and also his motive for being a CL

¶ 32. The facts here show that the defendant had a copy of the video of the confidential informant procuring the illegal drugs from the defendant. It is apparent from this video what the substance of the testimony coming from the Cl would be. The defendant also had the benefit of the actual indictment, which noted that the drug transaction took place with a Cl. It was quite evident what the substance of the testimony from the Cl would concern. This Court has held that, where it is obvious what a witness is going to testify, there is no unfair surprise or trial by ambush. See Lewis v. State, 725 So.2d 183, 187 (Miss.1998); Brown v. State, 690 So.2d 276, 290 (Miss.1996). It cannot be said that the defendant would be surprised by what the Cl would testify, since there was clear visual evidence showing what had occurred. While the audio is unavailable, this is of little consequence, as the video fairly depicted the illegal transaction.

¶ 33. With all of this said, the defendant cannot simply sit back and wait for errors to be made and then complain later when he fails to take proper steps to prevent those errors. Had the defendant timely requested disclosure of the identity of the Cl, and that request was denied until the day of trial, I would concur with the majority. Nonetheless, the defendant has not shown that a lack of discovery worked to his detriment or prejudiced him. Hunt, 687 So.2d at 1164. Moreover, Mississippi Rule of Evidence 103(a) provides that “[ejrror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.” Miss. R. Evid. 103(a). Dens-more has not demonstrated that previously-undisclosed evidence introduced at trial took him by surprise, prejudiced him, or affected one of his substantial rights. Hunt, 687 So.2d at 1164. Therefore, his arguments on this point are without merit.

CARLSON, P.J., RANDOLPH AND LAMAR, JJ., JOIN THIS OPINION.

      . The NCIC is a criminal records database available to law enforcement and prosecutorial authorities, but not to the public.

      . According to the prosecutor, the State withheld Spraggins's identity until the morning of trial because "it was a policy of our office not to reveal the name of a confidential informant until plea negotiations were concluded and it was certain the case was going to trial.” Rule 9.04(B) provides in pertinent part that the "court may limit or deny disclosure authorized by subsection ‘A’ if it finds that there is substantial risk to any person of physical harm, intimidation, bribery ... etc.” Miss. Unif. Cir. & Cty. R. 9.04(B). However, the State did not make any argument in reliance on this provision, and the trial court made no such finding. The language in Rule 9.04(B) does not mention plea negotiations as a limitation to the required disclosure of the names and addresses of witnesses whom the State expects to call at trial.

      . The dissent argues that Densmore was not prejudiced because he was aware of the existence of a confidential informant and should have known the substance of this witness’s testimony based on the previously-disclosed videotape recording of the transaction. Yet, Densmore could not have predicted what Spraggins might say when the bulk of Sprag-gins’s testimony concerned events before and after the recording. This argument also ignores the defendant's need to gather impeachment evidence, which may not be related to the subject matter of the witness’s testimony.
      The dissent would also place the burden to seek discovery upon the defendant once it has been volunteered by the State. This rationale was explicitly rejected in Moore v. State, 536 So.2d 909, 911 (Miss.1988), because it “would allow the prosecutor to volunteer discovery to defense counsel before defense counsel has filed a written request for discovery, and then withhold information that otherwise the state would be obligated to furnish under Rule [9.04], To countenance this result would be to countenance obvious circumvention of Rule [9.04]."
      With respect to the dissent's assertion that Foster v. State, 484 So.2d 1009 (Miss.1986) "signaled] the Court’s willingness to accept a short continuance where the identity of a Cl was involved,” the opinion makes no such implication. Foster simply noted, without specific examples, that a short continuance may be acceptable under certain circumstances. Id. at 1011.

      . The famous dissent of Justice Hawkins characterizes the view of the majority in this matter well. "So let me be quite plain what this Court is saying to defense counsel in these ... cases. It does not matter how experienced a trial lawyer you are, you can sit in the trial and remain totally silent when an error is committed. You need not then object. Furthermore, when you have gone home, had time to study and reflect away from the heat of battle, and thereafter meticulously prepare the reasons to the circuit judge why you believe an error was committed during trial, you still need not raise the question before the trial court. You may supinely relax with the assurance that this Court will nevertheless take care of your client on appeal.” Griffin v. State, 557 So.2d 542, 554 (Miss.1990) (Hawkins, P.J., dissenting).


source: Caselaw Access Project

author: CARLSON, Presiding Justice,

license: Public Domain

text:
    Diane M. GARTRELL, Lisa Leann Gartrell Aversrush and Jodey Jon Gartrell v. M. Kay GARTRELL a/k/a Kay Gartrell Kirschner, Executrix of the Estate of Dorothy Bryan Gartrell Estate of Dorothy Bryan Gartrell, Deceased, Diane M. Gartrell, Jodey Jon Gartrell And Lisa Leann Gartrell Aversrush v. M. Kay Gartrell a/k/a Kay Gartrell Kirschner.
    Nos. 2008-IA-01410-SCT, 2008-CA-01495-SCT.
    Supreme Court of Mississippi.
    Dec. 17, 2009.
    Rehearing Denied Feb. 25, 2010.

      David Mark Slocum, Jr., Senatobia, John Thomas Lamar, Jr., attorneys for appellants.
    Richard C. Roberts, III, Jackson, attorney for appellee.
    Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   CARLSON, Presiding Justice,

for the Court.

¶ 1. Aggrieved by the chancellor’s determination that a 1984 chancery court adoption order was void ab initio, and that, therefore, the adopted children of the decedent’s son, William C. Gartrell, III, were not the decedent’s lawful heirs, Diane M. Gartrell, the natural mother of the children adopted by her late husband, appeals to us. Finding that the Appellee, M. Kay Gartrell, the sister of Diane M. Gartrell’s late husband, lacked standing to attack the 1984 adoption order, we reverse the DeSo-to County Chancery Court order declaring the 1984 adoption order to be void ab initio, and we likewise reverse the order determining heirs at law entered on August 12, 2008. Judgment is thus rendered here in favor of Diane M. Gartrell, Lisa LeAnn Gartrell Aversrush, and Jodey Jon Gartrell.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. For the sake of clarity in today’s discussion, we begin with the identification of various individuals. From the marriage of George Joseph Weiss (George) and Diane Mae Weiss (Diane), two children were born, Jodey Jon Weiss (Jodey), and Lisa LeAnn Weiss Aversrush (Lisa). After George and Diane divorced, Diane married William C. Gartrell, III (William), who had two natural children, William C. Gartrell, IV (Will), and Cynthia Ann Gartrell Finn (Cindy). M. Kay Gartrell (Kay) is William’s sister. Dorothy Bryan Gartrell (Dorothy) was the mother of Kay and William.

¶ 3. On November 15, 1984, the Chancery Court of DeSoto County entered a final decree of adoption wherein Jodey and Lisa were adopted by their stepfather, William. Jodey and Lisa thus assumed William’s surname of Gartrell. At the time of the adoption, the children were eighteen and sixteen, respectively. The children’s natural mother, Diane (William’s wife), joined in the petition for adoption. William died testate on October 10, 2002, survived by Diane, his two natural children (Will and Cindy), and his adopted children, Jodey and Lisa.

¶ 4. Dorothy Gartrell, the mother of William and Kay, died testate on January 12, 2003. Dorothy’s will appointed Kay executrix of her estate. According to the provisions of Dorothy’s will, Kay and William were to receive Dorothy’s real and personal property, in equal shares, per stirpes. Kay, the appellee in this case, filed the Petition for Probate of Will and Letters of Testamentary on January 24, 2003. A subsequent Petition to Determine Heirs filed by Kay listed Dorothy’s heirs-at-law as Kay, Will, Cindy, Jodey, and Lisa. In an attempt to determine the validity of the adoption, Kay sought and obtained the original adoption decree, as well as the divorce decree and custody records between Diane and George Weiss. Based on what she considered inconsistencies in these records, Kay sought to depose George, the natural father of Jodey and Lisa. Since George purportedly lived out-of-state, Kay, as executrix in the probate proceedings, filed her “Petition for Commission to Issue Subpoena Outside the State of Mississippi to George Joseph Weiss.” In this petition, Kay asserted, inter alia, that “[i]n order to make a determination of heirship your Petitioner needs to take the deposition of George Joseph Weiss, the biological father of Jodie Jon Gartrell and Lisa LeAnn (Gartrell) Johnsey for the purpose of determining whether he consented to the adoption of the aforesaid children.” Via this petition, Kay requested the DeSoto County Chancery Court to grant a commission to take the out-of-state deposition of George. The petition likewise included George’s last known address, which was in the state of Arizona. Pursuant to the chancellor’s entry of an order allowing the commission to take George’s out-of-state deposition, the chancery clerk issued a subpoena pursuant to Mississippi Rule of Civil Procedure 45.

¶ 5. Diane, Jodey and Lisa (collectively “the Appellants”) filed a motion to quash the subpoena issued to George. The motion to quash was accompanied by an affidavit, dated March 22, 2005, wherein George stated he had been aware of, and consented to, the adoption of his children, Jodey and Lisa, by William. A subsequent corrected affidavit, however, stated that Weiss had not been aware of the adoption at the time, but did not desire to contest the adoption. Kay likewise filed a motion to dismiss the motion to quash. After hearing arguments on these motions, the chancellor granted Kay’s petition, and a commission was issued for taking George’s out-of-state deposition. The Appellants petitioned this Court for interlocutory appeal of the chancery court’s denial of the motion to quash the subpoena. The interlocutory appeal was granted, but later dismissed as moot when Kay waived the commission and withdrew the subpoena. Gartrell v. Gartrell, 936 So.2d 915, 916 (Miss.2006).

¶ 6. On November 22, 2005, Kay filed an Amended Petition to Determine Heirs, in which she sought for the first time to attack the validity of the 1984 adoption and to remove Jodey and Lisa as heirs of Dorothy. Kay filed her Second Amended Petition for Final Determination of Heirs at Law on February 5, 2008, which sought to set aside the adoption based on (1) lack of personal jurisdiction over the natural father (George) by the chancery court in 1984; (2) lack of subject matter jurisdiction; (3) Weiss’s affidavits; and (4) alleged fraud on the part of Diane in her assertions to the court in 1984 that George could not be found or served with process. This Second Amended Petition was accompanied by exhibits in the form of custody orders from a Michigan court. In this amended petition, Kay argued that the last order in any custody proceeding between Diane and George was entered in a Michigan court, and that under the Uniform Child Custody Jurisdiction Act (UCCJA), Michigan retained jurisdiction over the custody of the children. Kay further argued that, since the Michigan court had never relinquished jurisdiction as to the children’s custody, the DeSoto County Chancery Court had never had proper subject matter jurisdiction to issue the 1984 adoption decree. Moreover, according to Kay, Diane knowingly had made fraudulent misrepresentations to the court stating that George could not be located and that, therefore, the chancery court in 1984 did not have personal jurisdiction as to George.

¶ 7. The Appellants responded by filing a Motion to Dismiss and Affirmative Defenses and Answer to the Amended Petition for Determination of Heirs at Law. A hearing on the petition was scheduled, but later continued. Kay filed a motion for summary judgment, to which the Appellants filed a response. The chancery court heard oral arguments from counsel on the motion for summary judgment on June 20, 2008, and summary judgment was granted in favor of Kay via an order entered July 29, 2008. The chancellor entered his Order Determining Heirs At Law of Dorothy Bryan Gartrell, Deceased on August 12, 2008. The order provided, inter alia, that Jodey and Lisa were not heirs of Dorothy, because the 1984 adoption was obtained from a court that lacked jurisdiction.

¶8. In today’s appeal, the Appellants, Lisa, Jodey, and Diane, raise the following assignments of error: (1) whether the De-Soto County Chancery Court had jurisdiction over the adoption in 1984; (2) whether the chancellor erred in allowing Kay to attack collaterally a final decree of adoption entered twenty-five years ago; and (3) whether the principles of equity and judicial estoppel preclude Kay’s attack on the adoption. As to issue three, the Appellants argue that Kay is estopped from collaterally attacking the adoption because Kay obtained a dismissal of the interlocutory appeal on the basis that she was not contesting the adoption of Jodey and Lisa, and yet later renewed her collateral attack on the adoption in an amended petition. They argue that, by changing her position, she cannot now attack the adoption.

¶ 9. We agree with the Appellants that Kay did not have standing to attack the 1984 adoption; thus, we find it unnecessary to address the Appellants’ other issues. We turn now to the dispositive issue in this ease.

WHETHER THE CHANCELLOR ERRED IN ALLOWING KAY GART-RELL TO ATTACK A FINAL DECREE OF ADOPTION ENTERED TWENTY-FIVE YEARS AGO.

¶ 10. Summary judgment should be granted only if the pleadings, discovery materials, depositions, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Miss. R. Civ. P. 56(c). This Court conducts a de novo review of a trial court’s decision on a motion for summary judgment. Mabus v. St. James Episcopal Church, 13 So.3d 260, 263 (Miss.2009) (citing Smith v. Gilmore Mem’l Hosp., Inc., 952 So.2d 177, 180 (Miss.2007)). The question of standing is a question to which this Court applies a de novo standard of review. Dep’t of Human Servs. v. Gaddis, 730 So.2d 1116, 1117 (Miss.1998).

¶ 11. The Appellants argue that Kay lacks standing to have the adoption set aside because she is not one of the natural parents. Mississippi Code Section 93-17-7 reads, in pertinent part: “No infant shall be adopted to any person if either parent, after having been summoned, shall appear and object thereto before the making of a decree for adoption.... ” Miss.Code Ann. § 93-17-7 (Rev.2004). Mississippi Code Section 93-17-5 lists both parents as necessary parties to adoption proceedings. Miss.Code Ann. § 93-17-5 (Rev.2004). The Appellants point out that at no time did George, the children’s natural father, object to, or attempt to set aside, the adoption.

¶ 12. Historically, proceedings for adoption were unknown at common law, and have been purely statutory in nature. Matter of Adoption of A Minor, 558 So.2d 854, 856 (Miss.1990) (citing Brassiell v. Brassiell, 228 Miss. 243, 250, 87 So.2d 699, 700 (1956)). “[Ojnly a natural parent has a statutory right to object to the adoption of a child.” In re Estate of Reid, 825 So.2d 1, 7 (Miss.2002) (citing In re Adoption of J.J.G., 736 So.2d 1037, 1040 (Miss.1999); Miss.Code Ann. § 93-17-7 (Rev.1994)). This Court has affirmed the chancery court’s judgment due to lack of standing in cases in which natural grandparents sought either to object to adoption proceedings or to set aside an adoption. J.J.G., 736 So.2d at 1040. See also Matter of Adoption of A Minor, 558 So.2d at 855.

¶ 13. Both parties bring to our attention that this Court, in In re Estate of Reid, 825 So.2d 1 (Miss.2002), noted one exception to the general rule that only natural parents have standing to object to adoption proceedings. Kay cites this case for the premise that an heir of an estate was recognized by this Court as having standing to attack collaterally a fifteen-year-old adoption decree wherein an adult male was adopted by his elderly benefactor, on the basis that the adoption was obtained by fraud and overreaching. Id. at 7. On the other hand, the Appellants distinguish the facts in today’s case from those in Reid on the basis that this Court allowed the challenge to the adoption in Reid only because the adoptee had committed fraud on the adoption court based on evidence that the adoptee — an adult male who stood to inherit all of his adoptive mother’s property — had used undue influence in securing the adoption and drafting the will of his adoptive mother. Id. at 8.

¶ 14. In Reid, a twenty-four-year-old law student by the name of Michael Cupit developed a close relationship with seventy-eight-year-old Reid. Id. at 3. During the course of this relationship, Cupit had Reid deed her property to him, helped her draft a will that devised all of Reid’s property to him, persuaded Reid to transfer a power of attorney to him, and actively sought out an adoption wherein Reid eventually adopted Cupit. Id. at 3 — 4. The adoption was found by the chancellor to be a “long term plan and scheme” obtained by fraud and overreaching on the part of Cupit. Id. at 7. As a result of the fraud committed upon the adoption court, the adoption decree was set aside by the chancellor in light of the facts not made known to the adoption court at the time of the adoption, including the deed, the circumstances surrounding the drafting of Reid’s will, the previous attempted adoption, and the fact that Cu-pit had acted as an attorney on behalf of Reid. Id. at 7-8. Based on these facts, this Court affirmed the chancery court’s allowing Reid’s potential heir to collaterally attack and set aside the adoption. Id. at 7. In doing so, this Court reasoned:

We recognize that the adoption of children is sacred, and the finality of adoptions is of the utmost necessity. However, we are not dealing with the adoption of a child in this case. We are dealing with an adult man, with a law degree, who gained the trust and dependence of an elderly lady. Other states have recognized this problem and found that the heirs of a deceased person who adopted an adult do have standing to attack the adoption. In re Sewall, 242 Cal.App.2d 208, 51 Cal.Rptr. 367, 378 (1966); Greene v. Fitzpatrick, 220 Ky. 590, 295 S.W. 896 (1927); Raymond v. Cooke, 226 Mass. 326, 115 N.E. 423 (1917).

Id.

¶ 15. We agree with the Appellants that the facts of today’s case are easily distinguishable from those in Reid. The Appellants in today’s case are the stepchildren and wife of William Gartrell, III. Jodey and Lisa were adopted by their stepfather, William, while still teenagers. The record shows that George, the children’s natural father, had terminated support of his natural children five years prior to the 1984 adoption. In Reid, this Court explicitly stated: “Let it be clear that our findings concerning the adoption in this case are specific to the facts of this case.” Id. Therefore, Reid should not be interpreted as giving standing, carte blanche, to persons other than natural parents in attempting to set aside adoptions.

¶ 16. Kay has maintained throughout the proceedings in the trial court, and now makes assertions in her brief, that Diane committed a fraud upon the court when she informed the chancery court in 1984 that the whereabouts of the children’s natural father were unknown after diligent search and inquiry, and that he could not be made a party to the adoption proceedings. The chancery court, however, in its August 12, 2008, Order Determining Heirs At Law of Dorothy Bryan Gartrell, made no such finding that fraud had been committed upon the chancery court issuing the 1984 adoption decree.

¶ 17. For the reasons stated, we hold that Kay Gartrell lacks statutory standing to set aside the 1984 adoption decree because she is not one of the natural parents of Lisa and Jodey, and she was not a necessary party to the original proceedings. We thus find this assignment of error has merit. Since this issue is dispos-itive, we deem it unnecessary to address the remaining issues asserted by the Appellants.

CONCLUSION

¶ 18. Because Kay Gartrell lacked standing to attack collaterally the 1984 adoption of Jodey and Lisa by their stepfather, William Gartrell, the chancellor erred in declaring the 1984 adoption decree to be void ab initio, and in determining that the sole heirs-at-law of Dorothy Bryan Gart-rell were M. Kay Gartrell, William C. Gartrell, IV, and Cynthia Ann Gartrell Finn (Cindy), thus excluding Jodey Jon Gartrell and Lisa LeAnn Gartrell Avers-rush as heirs-at-law of Dorothy Bryan Gartrell. Based on the record before us and the applicable law, we today make the pronouncement that at the time of the death of Dorothy Bryan Gartrell, her heirs-at-law were M. Kay Gartrell, William C. Gartrell, IV, Cynthia Ann Gartrell Finn, Jodey Jon Gartrell, and Lisa LeAnn Gart-rell Aversrush.

¶ 19. In sum, for the reasons stated, the judgment of the Chancery Court of DeSoto County is reversed, and judgment is entered here in favor of the Appellants, Diane M. Gartrell, Lisa LeAnn Gartrell Av-ersrush, and Jodey Jon Gartrell, consistent with this opinion.

¶ 20. REVERSED AND RENDERED.

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

      . "The term 'per stirpes' denotes a method of distribution where a class of distributees take the share to which their deceased ancestor would have been entitled.” Jeffrey Jackson & Mary Miller, Encyclopedia of Mississippi Law § 75:83, 61 (2002) (citing Matter of Griffin’s Will, 411 So.2d 766 (Miss.1982)).

      . Pursuant to Mississippi Code Section 93-17-13 (Rev.2004), the effect of William's adoption of Jodey and Lisa was that they would inherit from William "to the same extent and under the same conditions as provided for the inheritance between brothers and sisters of the full blood by the laws of descent and distribution of the State of Mississippi.”

      .The record reveals that Lisa is sometimes referred to as Lisa LeAnn Gartrell Johnsey, while at other times, she is referred to as Lisa LeAnn Gartrell Aversrush.

      . See also Gartrell, 936 So.2d at 916.

      . Twice in their brief, the Appellants assert that they are entitled to an award of expenses and attorney’s fees from the Appellee; however, this claim is neither assigned as an issue, nor is there any citation of authority to under-gird this claim. Thus this argument is barred. Grenada Living Ctr., LLC v. Coleman, 961 So.2d 33, 37 (Miss.2007) (citing Grey v. Grey, 638 So.2d 488, 491 (Miss.1994)).


text:
    In re FISCAL YEAR 2010 JUDICIAL BRANCH APPROPRIATIONS.
    No. 2010-AD-00001-SCT.
    Supreme Court of Mississippi.
    Jan. 29, 2010.
   EN BANC ADMINISTRATIVE ORDER

The Constitution of the State of Mississippi provides:

The powers of the government of the State of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive another.

Miss. Const., Art. 1, Sec. 1.

It further provides:

No person or collection of persons, being one or belonging to one of those departments, shall exercise any power properly belonging to either of the others....

Miss. Const., Art. 1, Sec. 2. Thus, Mississippi’s judiciary is a separate, co-equal branch of government.

As part of the separation of powers among, and checks and balances on, these three co-equal branches of government, our Legislature has the duty to fund the judicial branch of government. The total amount appropriated to the judicial branch represents approximately six-tenths of one-percent (.006) of the General Fund appropriations. For Fiscal Year 2010, the judicial appropriation was approximately $8,000,000 below that requested and needed for the effective ongoing operation of our ninety-nine trial courts and two appellate courts. On December 3, 2009, the State Fiscal Officer stated that, acting pursuant to Miss.Code Ann. § 27-104-13, the 2010 appropriations for the judicial branch of government from general funds, budget contingency funds, and federal stimulus funds would be reduced by 5%. Due to the serious financial condition of state government, the Judicial Branch voluntarily allowed cuts in the amount of $950,714. Also, in order to address this crisis, significant reductions in spending at the appellate and trial level have been made.

On January 22, 2010, the State Fiscal Officer announced further reductions in appropriations, including those of the judiciary. The State Fiscal Officer’s authority to make budget cuts pursuant to Section 27-104-13, or otherwise, is limited to “agencies” and “the Mississippi Department of Transportation,” and does not extend to the judiciary, which is constitutionally-established as a separate branch of government, rather than an “agency.” The Constitution applies to every statute, Trainer v. State, 930 So.2d 373, 381 (Miss.2006), and all statutes are presumed to be constitutional. Id. at 377. Thus, the State Fiscal Officer must apply statutes in a constitutional manner. To the extent the State Fiscal Officer interprets Section 27-104-13 to authorize reductions in the judicial branch’s budget, we hold that such interpretation is inconsistent with the Constitution of the State of Mississippi. We therefore hold that any funds duly appropriated for the judicial branch of government are not subject to reduction pursuant to Section 27-104-13.

Nevertheless, the appellate and trial courts of this state are fully aware of the economic difficulties facing our state and its people. This Court, together with its financial administration, has carefully reviewed the budget of the judicial branch, and our courts have voluntarily made, and will continue to make, diligent and reasonable efforts to reduce their expenditures to the extent reasonably possible, without compromising the operation of a judiciary that can carry out its constitutional mandate to administer justice fairly and efficiently. Notwithstanding the cuts and efforts to reduce expenditures, the judiciary will require a deficit appropriation in order to complete the 2010 fiscal year.

IT IS THEREFORE ORDERED:

A. The appellate, chancery, and circuit courts of the state and their support offices, including the Administrative Office of Courts shall remain open, performing the constitutionally-mandated responsibilities of the Judicial Branch of government.

B. Section 27-104-13 is not applicable to the legislative appropriation to the Judicial Branch, and the State Fiscal Officer shall not impose those reductions announced on January 22, 2010 to the judicial appropriations.

C. The Marshal of this Court shall hand deliver a true certified copy of this order to the State Fiscal Officer. Additionally, true copies shall be forthwith transmitted to Governor Haley Barbour, Lieutenant Governor Phil Bryant, Speaker of the House of Representatives Billy McCoy, and Attorney General Jim Hood.

D. This order shall be published in the same manner as published opinions of the Court.

SO ORDERED.

/s/ William L. Waller, Jr., William L. Waller, Jr., Chief Justice

ALL JUSTICES JOIN.

      . Indeed, Section 27-104-13(1) makes it clear that the legislative branch of government is not an “agency.”


author: DICKINSON, Justice, KITCHENS, Justice,

text:
    William J. LEITCH, Jr. v. MISSISSIPPI INSURANCE GUARANTY ASSOCIATION.
    No. 2007-CT-01263-SCT.
    Supreme Court of Mississippi.
    Feb. 8, 2010.

      Sara B. Russo, Clarksdale, attorney for appellant.
    Clifford C. Whitney, III, Vicksburg, attorney for appellee.
   ON WRIT OF CERTIORARI

DICKINSON, Justice,

for the Court.

¶ 1. We are today presented the following issue of first impression: Whether under Mississippi law, the amount payable by the Mississippi Insurance Guaranty Association (“MIGA”) must be reduced by amounts recovered under a claimant’s uninsured motorist coverage. The trial court held in the affirmative. We agree.

BACKGROUND AND PROCEEDINGS

¶ 2. William Leitch was involved in a traffic accident with a truck owned by H-G & F Co., Inc., and driven by Jack L. Dillard, an employee of H-G & F. At the time of the accident, the truck was insured by Reliance Insurance Company, which has since been declared an insolvent insurer within the meaning of Section 83-23-109 of the Mississippi Code. See Miss.Code Ann. § 83-23-109 (Rev.1999).

¶ 3. Leitch initially filed suit against Dillard and H-G & F, and later added his uninsured motorist (“UM”) carrier, State Farm Mutual Automobile Insurance Company. Leitch sought his UM policy’s limit of $300,000 from State Farm. Leitch and State Farm reached a settlement agreement for the amount of $300,000, and Leitch continued to maintain his claims against H-G & F and Dillard.

¶ 4. Leitch filed a declaratory judgment action against the Mississippi Insurance Guaranty Association (“MIGA”), seeking a ruling that any award received from his own uninsured motorist coverage did not reduce MIGA’s obligation.

¶ 5. MIGA moved for summary judgment, arguing that — pursuant to Mississippi Code Section 83-23-123 — MIGA’s obligation must be reduced by State Farm’s payment of UM benefits, and since State Farm’s payment of $300,000 was equal to MIGA’s entire statutory limit of $300,000, MIGA had no further obligation. The trial court agreed, and granted MIGA’s motion for summary judgment. Leitch appealed, and the Court of Appeals affirmed. Leitch filed a petition for writ of certiorari, which we granted in order to address our prior opinion in Mississippi Insurance Guaranty Association v. Cole ex rel. Dillon, 954 So.2d 407 (Miss.2007).

ANALYSIS

¶ 6. On appeal, this Court:

employs a de novo standard of review in reviewing a lower court’s grant of summary judgment motion. Summary judgment is appropriate if the evidence before the Court — admissions in the pleadings, answers to interrogatories, depositions, affidavits, etc. — shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. This Court does not try issues on a Rule 56 motion, but only determines whether there are issues to be tried. In reaching this determination, the Court examines affidavits and other evidence to determine whether a triable issue exists, rather than the purpose of resolving that issue.

Miss. Gaming Comm’n v. Treasured Arts, 699 So.2d 936, 938 (Miss.1997) (internal citations omitted).

¶ 7. According to Mississippi Code Section 83-23-103, “[t]he purpose of [MIGA] is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer....” Miss.Code Ann. § 83-23-103 (Rev.1999). Furthermore, Mississippi Code Section 83-23-107 requires that the MIGA statute “shall be liberally construed to effect the purpose under § 83-23-103.... ” Miss.Code Ann. § 83-23-107 (Rev.1999). Accordingly, this Court has held:

The Mississippi Insurance Guaranty Association Law was enacted to protect policy holders of certain kinds of insurance in the event of their insurer’s insolvency. MIGA is a statutorily-created unincorporated association consisting of insurance companies doing business in Mississippi. Each solvent insurer doing business in this state is assessed a pro rata share of amounts paid on behalf of insolvent insurers. MIGA is prohibited by statute from paying anything other than a covered claim, and the statute further requires that all other sources of insurance must be exhausted before looking to MIGA for any coverage.

Miss. Ins. Guar. Ass’n v. Byars, 614 So.2d 959, 963 (Miss.1993) (internal citations omitted).

¶ 8. The matter before us today is controlled by the following statutory provision:

Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer, which is also a covered claim, shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this article shall be reduced by the amount of any recovery under such insurance policy.

Miss.Code Ann. § 83-23-123(1) (Rev.1999). In applying the statute, we first must determine whether Leitch had “a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer....” If so, we then must determine whether that claim was also “a covered claim,” that is to say, a claim covered by the MIGA statutes.

¶ 9. As already stated, Leitch was covered by a State Farm insurance policy which included uninsured motorist coverage. There is no assertion that State Farm is “an insolvent insurer.” Thus, we see no logical argument distinguishing Leitch’s claim against State Farm from the statutory language: “a claim against an insurer under any provision in an insur-anee policy other than a policy of an insolvent insurer....” Id.

¶ 10. We next must determine whether Leitch’s claim against State Farm was also a “covered claim,” a term defined by statute as follows:

an unpaid claim, including one of unearned premiums, which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this article applies issued by an insurer, if such insurer becomes an insolvent insurer and (1) the claimant or insured is a resident of this state at the time of the insured event, provided that for entities other than an individual, the residence of a claimant or insured is the state in which its principal place of business is located at the time of the insured event; or (2) the property from which the claim arises is permanently located in this state. “Covered claim” shall not include any amount awarded as punitive or exemplary damages; or sought as a return of premium under any retrospective rating plan; or due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise and shall preclude recovery thereof from the insured of any insolvent carrier to the extent of the policy limits.

Miss.Code Ann. § 83-23-109(f) (Rev.1999).

¶ 11. The very basis of Leitch’s suit against MIGA is his assertion that his claim is a “covered claim,” that is, that it is covered by the MIGA statutes. As recited in the facts above, at the time of the accident, the H-G & F truck was insured by Reliance Insurance Company, which has since been declared an insolvent insurer within the meaning of Section 83-23-109 of the Mississippi Code. Thus, we find Leitch’s claim is unquestionably a “covered claim,” that is, a claim against MIGA.

¶ 12. Because Leitch has a claim against his uninsured motorist carrier, State Farm, and a “covered claim” — as that term is defined in the MIGA statutes — we must apply the following mandatory statutory language: “Any amount payable on a covered claim under this article shall be reduced by the amount of any recovery under such insurance policy.” Miss.Code Ann. § 83-23-123(1) (Rev.1999). In restating the statutory language and inserting the appropriate nomenclature, the statute reads: “Any amount payable [by MIGA] shall be reduced by the amount of any recovery [from State Farm].” Miss. Code Ann. § 83-23-123(1) (Rev.1999).

¶ 13. Leitch cites our decision in Mississippi Insurance Guaranty Association v. Cole ex rel. Dillon, 954 So.2d 407, 414 (Miss.2007), for the proposition that his settlement with State Farm should not diminish MIGA’s coverage or obligation to pay. In Cole, the plaintiff brought a medical-malpractice action against her treating physician, her physician’s practice group, and the community hospital where she was treated. Id. The plaintiff settled with the physician and the practice group. After the suit had been filed, the hospital’s insurer became insolvent. Id. MIGA defended the hospital and filed a motion for summary judgment arguing that a joint tort-feasor’s solvent insurance coverage had to be exhausted before it had any responsibility to pay. Id. Thus, under MIGA’s analysis of the statute, the settlement between the plaintiff, the physician, and the practice group — which was in excess of MIGA’s $300,000 statutory maximum obligation— relieved MIGA of any responsibility to pay. Id.

¶ 14. We held that the plaintiff’s claims against the doctor and the practice group were not “covered claims” as contemplated by the statute, because their insurance carrier remained solvent. Therefore, “these defendants never had an insolvent insurer and thus failed to satisfy the definition of ‘covered claim.’ ” Id at 413. The Court then reasoned that, because these were not “covered claims,” the plaintiff was not required to exhaust her remedies through these policies pursuant to Mississippi Code Section 83-23-123(1), nor would any recovery from those policies reduce MIGA’s obligation. Id. at 413-414.

¶ 15. Although our result in Cole was correct, our reasoning requires clarification. Our analysis should have focused on determining whether the plaintiffs “covered claim” (as defined in the MIGA statutes) was the same claim as the plaintiffs claim against each of the other insured defendants. For MIGA to have a statutory obligation and authority to pay, any “claim” against a solvent insurer that is the same as the “covered claim” against MIGA must first be exhausted. Miss. Code Ann. § 83-23-123(1) (Rev.1999). We here repeat the language of the statute for clarity: “Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer, which is also a covered claim_” Id. (emphasis added). Although the defendants in Cole were joint tortfeasors, they were not “insurers,” and the respective claims against them were not the same. For the statute to have application, the covered claim against MIGA must also be “a claim against an insurer....” Miss Code Ann. § 83-23-123(1) (Rev.1999). Although the plaintiff in Cole had claims against other defendants, she had no claim against a solvent insurer “which [was] also a covered claim.... ” Id. (emphasis added). Thus, our holding in Cole was properly based on the fact that the plaintiffs “covered claim” (inherited by MIGA from the hospital’s insolvent insurer) was not also a claim the plaintiff had against a solvent insurer.

¶ 16. The case before us today presents a plaintiff who made a claim against State Farm (a solvent insurer) which is the same as the “covered claim” he now pursues against MIGA. The maximum amount payable on a “covered claim” is $300,000. Miss.Code Ann. § 83 — 23—115(l)(a)(iii). According to the statute, “[a]ny amount payable on a covered claim ... shall be reduced by the amount of any recovery under [the State Farm] policy.” Miss.Code Ann. § 83-23-123(1). Accordingly, MIGA is statutorily required to reduce the “amount payable on [Leitch’s] covered claim ... by the amount of any recovery under [the State Farm] insurance policy.”

¶ 17. When we are required to interpret a constitutional statute, our duty is to give full effect and unfettered deference to the statutory language chosen by the Legislature. Although our interpretations are not controlled by the decisions of other jurisdictions, they aid us in our determination of what is a reasonable interpretation — particularly where those other jurisdictions have interpreted the same or substantially similar language. Our decision today is in accord with numerous other state court decisions.

¶ 18. Assuming Leitch’s damages amount to be $300,000 or more, the “amount payable on a covered claim” by MIGA would be $300,000, because the maximum amount payable by MIGA is $300,000; and that full amount has been discharged by the $300,000 payment to Leitch from State Farm. See Miss.Code Ann. § 83-23-123(1). Accordingly, the trial court was correct in granting summary judgment, as was the Court of Appeals in affirming the trial court’s ruling.

CONCLUSION

¶ 19. Because Mississippi Code Section 83-23-123(1) specifically provides that “[a]ny amount payable [by MIGA] on a covered claim ... shall be reduced by the amount of any recovery” from “an insurance policy other than a policy of an insolvent insurer [State Farm],” MIGA is required to reduce the amount payable to Leitch by the amount of State Farm’s uninsured motorist payment. Since the $300,000 payment by State Farm requires a reduction of $300,000 in MIGA’s obligation — and since MIGA’s statutory cap is $300,000 — the judgment of the Court of Appeals and the trial court’s grant of summary judgment must be, and hereby are, affirmed.

¶ 20. AFFIRMED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY GRAVES, P.J.

KITCHENS, Justice,

Dissenting:

¶ 21. Though at first blush the majority’s opinion seems logical, and is exceedingly well-written, in my view its reasoning is fundamentally flawed.

¶ 22. Leitch filed two civil actions in the Circuit Court of DeSoto County, both of which arose from the vehicular crash in which he avers that he was seriously injured. The first is a typical personal injury action against a truck driver and his employer. Leitch claimed in that action that these parties negligently caused the accident and that they were liable to him for his resulting damages. Upon determining that the liability insurance carrier for these parties, Reliance Insurance Company, was insolvent, Leitch joined his own automobile liability insurance carrier, State Farm Mutual Automobile Insurance Company, as a named defendant, invoking the uninsured motorist coverage, in the amount of $300,000, that was part and parcel of his State Farm policy. The second civil action, which is the one now before this Court, is a declaratory judgment suit against Mississippi Insurance Guaranty Association in which Leitch sought a circuit court ruling that the payment he had received from his uninsured motorist carrier did not offset funds that were potentially available to him from the guaranty association (MIGA).

¶ 23. The circuit court decided that an offset applies, and that the full amount that would have been available from MIGA is offset by the payment Leitch received from State Farm. Coincidentally, the maximum statutory coverage from MIGA is $300,000, the same amount as Leitch’s uninsured motorist coverage through State Farm. Miss.Code Ann. § 83-23-115(l)(a)(iii) (Rev.1999). The Court of Appeals agreed with the circuit court, as do my esteemed colleagues in the majority. With respect, I do not.

¶ 24. A correct determination of this issue requires, in my judgment, a different interpretation of Mississippi Code Section 83-23-123(1) than that made by the majority. A comprehensive analysis, with benefit of all relevant facts in this case, is not possible because of insufficient information in the record before us. Of greatest importance in this regard is the fact that there has been neither a judicial determination nor a stipulation by the parties of the total amount of compensatory damages, if any, due Leitch from the alleged tortfeasors. Of course, such a determination can, and may eventually, be made by a DeSoto County jury in the first civil action filed by Leitch. This Court is hampered in its analysis by our not knowing the total amount of compensation for damages, if any, to which Leitch is entitled.

¶ 25. State Farm, standing in the shoes of Reliance as a liability insurance carrier for the alleged tortfeasors, bought its peace by settling with Leitch for its policy limits of $300,000. This Court is further hindered in its analysis by not knowing how much liability insurance the alleged tortfeasors would have had through Reliance, had Reliance been solvent at times relevant to Leitch’s accident.

¶ 26. If Reliance’s applicable policy limits exceeded $300,000, then the uninsured motorist coverage available to Leitch through State Farm filled Reliance’s empty shoes, but only partially. If the compensation due to Leitch from the tortfea-sors exceeds $300,000, then it falls upon MIGA to complete the filling of Reliance’s shoes in an amount sufficient to pay Leitch’s remaining, unpaid damages, but not to exceed MIGA’s statutory cap of $300,000.

¶ 27. In applying Section 83-23-123(1) to the available facts, it is necessary to understand that Leitch never had a claim, and does not now have a claim, against the insurance company in whose shoes State Farm and MIGA stand, namely, Reliance. Under the circumstance in which Leitch found himself after his accident, the only insurance company that he had a right to sue was State Farm, and his right to sue that company would not have come to fruition if Reliance had been solvent, or if a solvent Reliance’s applicable coverage had proven insufficient to compensate Leitch for all damages for which the alleged tort-feasors were found to be liable.

¶ 28. The majority correctly finds that, “the Mississippi Insurance Guaranty Association Law was enacted to protect policy holders of certain kinds of insurance in the event of their insurer’s insolvency.” Miss. Ins. Guar. Ass’n v. Byars, 614 So.2d 959, 963 (Miss.1993) (Emphasis added.) The benefits that Leitch may receive through the guaranty association will come to him indirectly, inasmuch as the guaranty association exists for the protection of the person and company who Leitch claims are responsible for his injuries. Although they would have relied on Reliance if it had been solvent, they must now rely, at least in part, on the guaranty association.

¶ 29. Since we do not know the amount of Leitch’s damages attributable to the alleged tortfeasors, it may be helpful to assume, for the purposes of analysis, an amount that exceeds all of the coverage afforded by State Farm and MIGA in order to understand Code Section 83-23-123(1) correctly. Thus, assume that Leitch’s total damages due from the alleged tortfeasors amount to $1,000,000.

¶ 30. State Farm, through its uninsured motorist coverage in Leitch’s policy, has paid $300,000 of the $1,000,000 on behalf of the alleged tortfeasors. Therefore, in this scenario, $700,000 remains due and payable to Leitch from the parties responsible for the accident and resulting injuries; $700,000 is the “amount payable” mentioned in the second sentence of Section 83-23-123(1).

¶ 31. Leitch has followed the dictates of the statute by first exhausting his rights under his State Farm policy. Therefore, the guaranty association is entitled to have its obligation reduced by the $300,000 amount received by Leitch from State Farm. Accordingly, the remaining, unpaid amount due to Leitch from the alleged tortfeasors is $400,000. However, the guaranty association is limited to paying an amount no greater than the statutory cap of $300,000. Under this hypothetical scenario in which Leitch’s total adjudicated or stipulated damages are $1,000,000, the guaranty association must pay Leitch $300,000, leaving an unpaid amount of $100,000 still due and owing to Leitch from the alleged tortfeasors.

¶ 32. The word offset is nowhere to be found in the cited statute. In his declaratory judgment action, Leitch asks the courts of this state to tell him and the guaranty association whether an offset applies. While it is true that there is an applicable reduction, or credit, that applies to the totality of Leitch’s damages, that reduction does not “cancel out” MIGA’s obligation to take up where State Farm left off in paying whatever damages are ultimately attributed to the alleged tortfea-sors. In this case, the uninsured motorist coverage comes first under the statute, and is paid in addition to, not instead of, MIGA’s obligation, within its statutorily-defined limits.

¶ 33. Because I believe the foregoing to be the correct analysis, I respectfully dissent from the contrary conclusion of the majority, and I would reverse the trial court’s grant of summary judgment in favor of MIGA and the Court of Appeals’s affirmance thereof.

GRAVES, P.J., JOINS THIS OPINION IN PART.

      . See e.g. Colo. Ins. Guar. Assoc. v. Menor, 166 P.3d 205 (Colo.App.2007); Robinson v. Gailno, 275 Conn. 290, 880 A.2d 127 (Conn.2005); Bird v. Norpac Foods, Inc. 325 Or. 55, 934 P.2d 382 (Or.1997); Zhou v. Jennifer Mall Rest., Inc. 699 A.2d 348 (D.C.1997); Pinkham v. Morrill, 622 A.2d 90 (Me.1993); Burke v. Valley Lines, Inc., 421 Pa.Super. 362, 617 A.2d 1335 (Pa.Super.Ct.1992); Hawkins v. Ky. Ins. Guar. Assoc., 838 S.W.2d 410 (Ky.Ct.App.1992); Stecher v. Iowa Ins. Guar. Assoc., 465 N.W.2d 887 (Iowa 1991); McMahon v. Caravan Refrigerated Cargo, Inc., 406 Pa.Super. 303, 594 A.2d 349 (Pa.Super.Ct.1991); Northland Ins. Co. v. Va. Prop. and Cas. Ins. Guar. Assoc., 240 Va. 115, 392 S.E.2d 682 (Va.1990); Witkowski v. Brown, 576 A.2d 669 (Del.Super.Ct.1989); Blackwell v. Pa. Ins.

        Guar. Assoc., 390 Pa.Super. 31, 567 A.2d 1103 (Pa.Super.Ct.1989); Rinehart v. Hartford Cas. Ins. Co., 91 N.C.App. 368, 371 S.E.2d 788 (N.C.Ct.App.1988); Ins. Comm’r of the State of Md. v. Prop, and Cas. Ins. Guar. Corp., 313 Md. 518, 546 A.2d 458 (1987); Vokey v. Mass. Ins. Insolvency Fund, 381 Mass. 386, 409 N.E.2d 783 (1980); Prutzman v. Armstrong, 90 Wash.2d 118, 579 P.2d 359 (Wash.1978); Lucas v. Ill. Ins. Guar. Fund, 52 Ill.App.3d 237, 367 N.E.2d 469, 10 Ill.Dec. 81 (1977).

      . See Miss.Code Ann. § 83 — 23—115(l)(a)(iii) (Rev. 1999).


author: ISHEE, J.,

text:
    William J. LEITCH, Jr., Appellant, v. MISSISSIPPI INSURANCE GUARANTY ASSOCIATION, Appellee.
    No. 2007-CA-01263-COA.
    Court of Appeals of Mississippi.
    Feb. 24, 2009.
    Rehearing Denied June 9, 2009.
    Sara Bailey Russo, Clarksdale, attorney for appellant.
    Clifford C. Whitney, Vicksburg, attorney for appellee.
    Before LEE, P.J, IRVING and ISHEE, JJ.
   ISHEE, J.,

for the Court.

¶ 1. The Circuit Court of Desoto County granted a motion for summary judgment filed by Mississippi Insurance Guaranty Association (MIGA), finding that the statutory exhaustion provision precluded the claim of William J. Leitch, Jr. Aggrieved by the circuit court’s grant of summary judgment, Leitch appeals. He argues that summary judgment was improper because he presented factual issues that should have been resolved by a jury. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On January 19, 1998, Leitch was traveling through Desoto County on Highway 78 when he rear ended an eighteen-wheeler owned by H-G & F Co., Inc. (H-G & F), and driven by its employee, Jack Dillard. Leitch claimed that the eighteen-wheeler driven by Dillard was pulled over on the side of the road when suddenly and without warning, it pulled out in front of Leitch. Leitch alleged that Dillard’s act of suddenly pulling out in front of him caused the accident and his resulting injuries. At the time, H-G & F had liability insurance on the eighteen-wheeler through Reliance Insurance Co., which later became insolvent.

¶ 3. The following year, Leitch filed a complaint against Dillard and H-G & F, seeking to recover for his injuries. Leitch later filed an amended complaint to add his auto insurance carrier, State Farm Mutual Automobile Insurance Co. (State Farm) as a defendant. In the complaint, Leitch sought to recover $300,000 from State Farm, which was the policy limit of his uninsured motorist coverage, and more than $3,000,000 from the remaining defendants. State Farm opted to settle with Leitch, agreeing to pay him the policy limit of $300,000 in uninsured motorist coverage.

¶ 4. Following the settlement with State Farm, Leitch filed suit in the circuit court, seeking a declaratory judgment against MIGA. Leitch sought the circuit court to declare that because of Reliance’s insolvency, MIGA was obligated to pay the full amount of its $300,000 statutory liability limit. In response, MIGA made a motion for summary judgment arguing that under Mississippi Code Annotated section 83-23-123 (Rev.1999), it was entitled to credit Leitch’s settlement with State Farm against its liability. Accordingly, MIGA concluded that Leitch had exhausted his remedy and that MIGA was absolved of any liability.

¶ 5. The circuit court granted MIGA’s motion for summary judgment. The circuit court found that Leitch’s claim for uninsured motorist coverage was a “covered claim”; therefore, MIGA was entitled to an offset of any amount recovered from that claim. The circuit court entered final judgment in favor of MIGA on July 17, 2007. From that judgment, Leitch timely filed the present appeal.

STANDARD OF REVIEW

¶ 6. This Court’s standard of review regarding a circuit court’s grant of a motion for summary judgment is as follows:

The Court employs a de novo standard of review in reviewing a lower court’s grant of summary judgment motion. Roussel v. Hutton, 638 So.2d 1305, 1314 (Miss.1994). Summary judgment is appropriate if the evidence before the Court — admissions in the pleadings, answers to interrogatories, depositions, affidavits, etc. — shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Newell v. Hinton, 556 So.2d 1037, 1041 (Miss.1990). This Court does not try issues on a Rule 56 motion, but only determines whether there are issues to be tried. [Miss.] Ins. Guar. [Ass’n] v. Byars, 614 So.2d 959, 963 (Miss.1993). In reaching this determination, the Court examines affidavits and other evidence to determine whether a triable issue exists, rather than the purpose of resolving that issue. Comment, Miss. R. Civ. P. 56.

Miss. Gaming Comm’n v. Treasured, Arts, 699 So.2d 936, 938(¶ 11) (Miss.1997).

DISCUSSION

¶ 7. Leitch only alleges one point of error on appeal — that the circuit erred in granting summary judgment in favor of MIGA. He argues that he presented issues of fact to the circuit court that should have been resolved by a jury and that summary judgment was not proper.

¶ 8. Leitch’s argument rests on the recent decision of Mississippi Insurance Guaranty Association v. Cole ex rel. Dillon, 954 So.2d 407, 414(¶ 26) (Miss.2007), in which the supreme court found that: (1) section 83-23-123(1) did not require a claimant to first exhaust his claims against the solvent insurance providers of joint tortfeasors, and (2) section 83-23-123(1) also did not permit MIGA to offset any potential claims against it as a result of payments made by such a solvent insurance company of a joint tortfeasor. Leitch argues that according to the ruling in Cole, MIGA should not be allowed to offset any amount owed to Leitch from the uninsured motorist settlement with State Farm. MIGA responds that Cole merely stands for the proposition that MIGA may not offset its liability with a payment by a solvent insurance company of a joint tort-feasor, and it has no bearing on whether MIGA may offset its liability with a payment made by an uninsured motorist provider. According to MIGA, Cole is inapplicable and distinguishable from the present issue relating to uninsured motorist coverage, which MIGA argues is a “covered claim.”

¶ 9. The purpose of MIGA is to protect the insured from an insolvent insurance company through involuntary contributions from financially healthy insurance companies. Bobby Kitchens, Inc. v. Miss. Ins. Guar. Ass’n, 560 So.2d 129, 135 (Miss.1989); see also Miss.Code Ann. § 83-23-103 (Rev.1999). “The guaranty law statutes are to be liberally construed in order to achieve the purpose of protecting the public or claimants against financial loss because of the insolvency of insurers.” Byars, 614 So.2d at 963; see also Miss.Code Ann. § 83-23-107 (Rev.1999).

¶ 10. First, we must determine whether Leitch’s uninsured motorist claim against State Farm was a “covered claim” as defined by Mississippi Code Annotated section 83-23-109® (Rev.1999). “‘Covered claim’ means an unpaid claim, including one of unearned premiums, which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this article applies issued by an insurer, if such insurer becomes an insolvent insurer....” Miss. Code Ann. § 83-23-109®.

¶ 11. If we find that Leitch’s claim against State Farm was a “covered claim,” then we must look to the section 83-23-123(1), which requires Leitch to exhaust any “covered claims” while also allowing MIGA to offset its liability by a payment made pursuant to any such claims. Section 83-23-123(1) provides as follows:

Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer, which is also a covered claim, shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this article shall be reduced by the amount of any recovery under such insurance policy.

¶ 12. The parties agree that Cole is the relevant case to apply to the present issue. According to Leitch, Cole requires us to find that his claim against State Farm was not a covered claim because State Farm remained solvent. Leitch would further interpret Cole to find that because the claim was not a “covered claim,” MIGA should not be allowed to offset its liability by the amount of the State Farm settlement. Of course, MIGA argues that the decision in Cole is distinguishable from the present case because Leitch’s claim against MIGA and his claim against State Farm were essentially the same claim, unlike the joint tortfeasor situation in Cole. The circuit court found MIGA’s argument to be convincing, which is evidenced by the following passage from its order granting the motion for summary judgment:

The Court finds that Leitch’s claim for uninsured motorist benefits against State Farm is a “covered claim” as defined by 83 — 28—109(f) as his claim arose out of the insolvency of Jack Dillard and H-G & F Co., Inc.’s insurance carrier pursuant to Miss.Code Ann. But for the insolvency, the defendant would not have been uninsured and Leitch would not have qualified for uninsured motorist benefits.

¶ 13. The specific issue of whether MIGA may offset its liability with a payment made pursuant to an uninsured motorist provision has not been addressed in Mississippi. As such, MIGA cites ample out-of-state authority in support of its position that it should be allowed to offset its liability by Leitch’s $300,000 uninsured motorist settlement. In addressing this very issue, the District of Columbia Court of Appeals stated the following:

Our interpretation [of what is a “covered claim”] is also consistent with the contrary result, applying statutory provisions equivalent to D.C.Code § 35-1910(a) in cases involving claims made under an individual’s uninsured motorist policy. This situation typically arises in the following circumstances: driver A, who has uninsured motorists insurance, is involved in an accident with driver B, the tortfeasor. When driver B’s insurance is declared insolvent, driver A recovers from his or her own uninsured motorists policy. Driver A then attempts to recover from the state insurance guaranty association which has stepped into the shoes of the tortfeasor’s insolvent insurer. Because the claim against driver A’s uninsured motorists policy is the same claim as the one brought against driver B’s insolvent insurer, the insurance association can deduct the amount recovered from the injured party’s uninsured motorists policy from the amount it is statutorily obligated to pay to the injured party. See Stecher v. Iowa Ins. Guar. Ass’n, 465 N.W.2d 887[, 890] (Iowa 1991) (holding that Iowa Insurance Guaranty Association was entitled to offset its liability on behalf of a driver’s insolvent insurer by the amount received from the claimant’s uninsured motorist benefits); Hawkins v. Kentucky Ins. Guar. Ass’n, 838 S.W.2d 410[, 412] (Ky. Ct. App.1992) (same); McMahon v. Caravan Refrigerated Cargo, Inc., ... 406 Pa.Super. 303, 594 A.2d 349, 352 (1991) (holding that the Pennsylvania Insurance Guaranty Association was entitled to deduct any amount of uninsured motorist benefits received by claimant from his own insurer); Blackwell v.[Pa.] Ins. Guar. Ass’n, ... 567 A.2d 1103[, 1106-07] (Pa.Super.1989) (same). These cases stand for the proposition that where an injured plaintiff has alternative sources of insurance covering the same claim as the claim against the insolvent insurer, the courts interpret the nonduplication provision as requiring the plaintiff to exhaust the solvent policy and deduct the amount recovered from the obligation due by the state insurance guaranty association. See Insurance [Comm’r] v. [Prop.] & Cas. Ins. Guar. Corp., ... 546 A.2d 458, [464] (Md.1988) (recovery from a solvent insurer of a claim different than the one against the insolvent insurer is not a “windfall” prohibited by the nonduplication provision).

Zhou v. Jennifer Mall Rest., Inc., 699 A.2d 348, 354-55 (D.C.1997). While an opinion from a foreign jurisdiction is clearly not binding on this Court, the District of Columbia Court of Appeals succinctly explains what is essentially MIGA’s argument concerning this issue.

¶ 14. We find MIGA’s argument convincing, and we find that the scenario in Cole is distinguishable from the present case. We first note that in Cole, the supreme court found that section 83-23-109(f) was unambiguous, and it stated that a ‘“covered claim’ arises from an insurance policy issued from a later insolvent insurance carrier.” Cole, 954 So.2d at 413(¶ 24). Our analysis of the present issue is, therefore, limited by the unambiguous definition of a “covered claim.”

¶ 15. Even though the supreme court in Cole ultimately found that MIGA had no right to offset its liability by an amount recovered from a joint tortfeasor, we see no conflict between that ruling and circuit court’s finding in this case — that Leitch fully exhausted his claim against MIGA when he settled with State Farm for $300,000 in uninsured motorist coverage. In Cole, the joint tortfeasor’s insurance carrier remained solvent at all times; therefore, the supreme court found that it was not a “covered claim.” Id. In the present case, State Farm also remained solvent. However, the present situation is distinguishable because while State Farm remained solvent at all times, H-G & F’s insurance carrier, Reliance, became insolvent, thereby triggering State Farm’s uninsured motorist coverage.

¶ 16. The present situation fits the supreme court’s description of a “covered claim” as “aris[ing] from an insurance policy issued from a later insolvent insurance carrier.” Cole, 954 So.2d at 413(¶24). Unlike Cole, Leitch’s claim was not a separate claim against a separate tortfeasor, but it was a claim against an insurance company that became liable only after HG & F’s insurance carrier became insolvent. Therefore, Leitch’s claim arose from an insurance policy issued by a later insolvent insurance carrier, which is how the supreme court defined a covered claim in Cole. Just as with the hypothetical from Zhou, State Farm stepped into the shoes of H-G & F’s insolvent insurance carrier. Ultimately, Leitch’s uninsured motorist claim against State Farm arose from H-G & F’s insurance policy issued by Reliance, which later became insolvent.

¶ 17. Based on the above reasoning, we find that the Leitch’s claim for uninsured motorist coverage against State Farm was a covered claim. Accordingly, we find no error with the circuit court’s ruling as such.

¶ 18. Being that Leitch’s claim for uninsured motorist coverage was a “covered claim” as provided by section 83 — 23—109(f), MIGA was entitled to offset any amount Leitch recovered under that claim against its liability resulting from Reliance’s insolvency. Not only was MIGA entitled to reduce its liability pursuant to section 83-23-123(1), but the statute further required Leitch to exhaust any claim such as his claim against State Farm.

¶ 19. Leitch’s claim against State Farm was a “covered claim”; therefore, MIGA was entitled to offset its liability -with any amount paid by State Farm. State Farm settled its claim with Leitch for the policy limit of $300,000, which is also the maximum amount for which MIGA may be held liable. Therefore, pursuant to section 83-23-123(1), MIGA was entitled to offset the entire amount of its $300,000 liability with the $300,000 State Farm settlement.

¶ 20. We find that the circuit court did not err in finding Leitch’s claim against State Farm to be a covered claim and, thereby, allowing MIGA to offset its liability by the amount recovered from State Farm. Seeing as Leitch settled for $300,000, and the most that he could recover from MIGA would have been $300,000, the circuit court properly allowed MIGA to offset its entire liability with the State Farm settlement. We find no error with the judgment of the circuit court, and we affirm the entry of summary judgment in favor of MIGA.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ., CONCUR.