author: MOORE, J.

text:
    Bonita DUGAN, Plaintiff-Appellee v. ST. FRANCIS MEDICAL CENTER, Defendant-Appellant.
    No. 45,149-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.

      Hayes, Harkey, Smith & Cascio, LLP, by John B. Saye, Monroe, for Appellant.
    Watson, McMillin & Harrison, LLP, by David C. McMillin, Monroe, for Appellee.
    Before GASKINS, DREW and MOORE, JJ.
   MOORE, J.

| jThe employer, St. Francis Medical Center, appeals a judgment finding that the claimant, Bonita Dugan, sustained a work-related injury and awarding her temporary, total disability (“TTD”) benefits, medical expenses, two penalties and an attorney fee. Ms. Dugan answers the appeal, seeking legal interest on the award and an additional attorney fee. We affirm the finding of a work-related injury and the award of medical and TTD benefits, and amend the judgment to award judicial interest. However, we reverse the imposition of penalties and an attorney fee, and dismiss the claim for an additional attorney fee.

Factual Background

Ms. Dugan began work at St. Francis in January 2008 as a certified nurse assistant on sixth floor medical earning $8.00 an hour (later raised to $8.15). Initially, she worked the graveyard shift, which she described as “easy.” After about two months, St. Francis moved her to the morning shift, which was more fast-paced and demanding. She described bathing patients nonstop, moving and lifting some heavy people; she was 39 years old, only 5'4" and 150 lbs. She testified that at some point, her back began to hurt, a needle-like pain in the lower back.

It transpired that Ms. Dugan had a significant history of back trouble. In 1993, while living in California, she was the victim of a domestic abuse battery resulting in a broken neck; she had a surgical bone graft with the donor tissue coming from her lower back above the pelvis — precisely where she was now hurting. After moving to Louisiana, she worked as a sitter or CNA for various healthcare providers, and sustained three work-related |2back injuries: (1) at Premier Rehabilitation in June 2004, she hurt her back moving a patient; (2) at Care Solutions in September 2004, she again hurt her back moving a patient; (3) at D & D Community Connections in June 2006, she yet again hurt her back moving a patient, and received workers’ comp for this. In addition, in February 2007 she was in an auto accident in Monroe that totaled her car and resulted in back pain and numbness in her legs. However, she insisted that all these prior incidents caused only nagging yet manageable pain; she never missed more than a few days’ work because of them.

Ms. Dugan was very hazy on specific dates and even chronology, but based on St. Francis’s time cards and medical records, the initial incident must have been on April 19, 2008. On that date she went to the St. Francis ER complaining of back pain. She did not, however, tell anyone that it started on the job, only that she may have pulled a muscle. She received a three-day work release. She went to the St. Francis Convenience Clinic on April 21, still complaining of back pain; she received a Medrol Dosepak and Toradol for pain relief, and a work release through April 24.

On April 24, she went to Dr. Douglas Brown, an orthopedic surgeon, reporting that she had to lift and pull patients at work, but not citing any specific incident; she also admitted suffering low back pain off-and-on for years. On the orthopedic history, Ms. Dugan wrote that her present pain started on April 11, 2004 (four years prior). Diagnosing muscular back pain, Dr. Brown gave her steroid and Xylocaine injections. Later, in deposition, he agreed that her condition could be work-related.

JJVTs. Dugan returned to work a short while later (the time card record showed it was on April 29) doing her regular day shift, but was in constant pain that gradually got worse. She testified that on her final day, a Saturday, she was trying to turn a large, 300-lb. patient when she suddenly felt a sharp, disabling pain in her low back and radiating down her left leg. She then tearfully went to her charge nurse, Rutha Taylor, saying she was hurting too bad to work and had to leave. She testified that Ms. Taylor put her on the phone with the house supervisor, Rookh Brothers, who gave her permission to go home. (Ms. Brothers testified this did not happen, as she was on leave that day and took no phone calls.)

The time card record shows that Ms. Dugan’s final day was May 3. Ms. Taylor confirmed that Ms. Dugan had periodically complained of back pain, but she (Ms. Du-gan) always ascribed it to her earlier injuries and never to anything that happened at St. Francis.

Three days later, on May 6, Ms. Dugan went to her family doctor, Dr. J.D. Patterson. She testified that she told him she worked as a CNA and aggravated her back at work. Dr. Patterson ran some x-rays and noted “six lumbar vertebrae with transitional lumbosacral vertebrae.”

Ms. Dugan had health coverage with St. Francis, administered by Gilsbar. On May 19, she applied to Gilsbar to cover her ER visit. She wrote on the form that it was an ongoing condition “from 6/23/06” (almost two years prior) and that the accident occurred “lifting & pulling on pts. 4/26/08, St. Francis Medical (not responsible).”

LMs. Dugan then went to another orthopedic surgeon, Dr. Jose Ferrer, on May 20. She reported that her current pain had started on April 21, 2008, but did not mention getting any prior treatment for it or having any prior back problems. Dr. Ferrer ordered an MRI which showed a herniated disc at L4-5 on the left side, of recent origin. In deposition, he could not estimate when it happened, but stated that nobody could work in that kind of pain for over a week. He also could not surmise how it happened; it could be from trauma or from daily activities, but it was consistent with trying to lift a heavy patient. He referred her to Dr. Vincent Forte at Louisiana Pain Clinic.

Ms. Dugan went to Dr. Forte on June 10. She wrote on his questionnaire that her current pain started on June 23, 2006 (almost two years prior) with exacerbation about two months ago. He scheduled her for a series of three epidural injections along the L4-5 nerve root. She took the first two but then stopped; she testified that she simply could not pay for the last one, and still owed for the first two.

Ms. Dugan admitted that she never told anybody at St. Francis that she hurt herself on the job. Several hospital employees — Ms. Brothers, her nursing supervisor; Kay Downey, manager of the medical floor; Amy Owens, specialty coordinator of the medical floor; Kim Bourne, the workers’ comp manager and risk analyst — all testified that reporting any injury to your supervisor was the required protocol and that Ms. Dugan never did so.

|bMs. Dugan testified that she phoned Ms. Owens sometime in May to ask about filing a comp claim, but Ms. Owens told her it was “too late.” Ms. Owens, however, flatly denied this, and testified that in fact she asked Ms. Dugan point-blank, “Did it happen here?,” to which she replied, “It happened previously.” Ms. Dow-ney similarly testified that Ms. Dugan told her it was an “old injury from an accident.”

Action in the Office of Workers’ Compensation

Ms. Dugan filed the instant disputed claim on July 2, 2008. She alleged that the injury occurred on A-pril 26, 2008, while she was turning a patient. The time card record, however, showed that she was not at work that day. On the second day of trial in April 2009, after much confusion regarding dates, the WCJ allowed her to amend her claim to state the injury was May 3, 2008. Ms. Dugan testified that at first, she did not realize how serious her back injury was, and thus did not make a comp claim early on. She insisted she did not mean to mislead anyone, but that she was simply terrible at remembering dates. She also testified that she is still taking a lot of pain medication and in her current state she cannot work. Her husband corroborated much of this testimony. Dr. Ferrer testified, by deposition, that most people with this kind of disc injury cannot work.

St. Francis’s witnesses agreed that Ms. Dugan never reported a work-related injury; Ms. Owens and Ms. Downey testified that she explicitly denied having one. Ms. Bourne admitted that Gilsbar received Ms. Dugan’s claim form in May 2008, but because this said the injury predated her employment at St. Francis and that St. Francis was “not responsible,” she|fihad no idea there was a comp claim until months later on receipt of Ms. Dugan’s Form 1008.

After taking the case under advisement, the WCJ ruled orally. It recounted Ms. Dugan’s history, but found that her back pain had never previously been unbearable. Citing Drs. Brown and Ferrer, as well as Ms. Dugan’s husband, the WCJ found that she is “disabled and continues to be so without resolution.” Further, it was of no consequence that Ms. Dugan could not identify the precise date of her injury or immediately appreciate how badly she was hurt; she sustained a compen-sable injury while trying to turn a heavy patient. The WCJ awarded TTD until Ms. Dugan is released to return to work, and all medical and incidental expenses not covered by health insurance.

Finally, the WCJ found that the comparison between Ms. Dugan’s condition before and after the injury eliminated any reasonable basis to fail to pay benefits. It therefore assessed penalties of $2,000 for failure to provide medical benefits and $2,000 for failure to pay TTD benefits, and an attorney fee of $7,000.

St. Francis has appealed, raising two assignments of error.

Discussion: Finding of Work-Related Injury

By its first assignment, St. Francis urges the WCJ erred in finding that Ms. Dugan sustained an on-the-job injury. St. Francis concedes that the comp statute is to be construed liberally in favor of the claimant and that manifest error review applies. However, it contends that Ms. Dugan had a long history of serious back injuries, most of which she recalled in great |7detail and precisely as to date, while the instant one is simply suspicious, given that she could not identify a precise incident or date. It also contends that Ms. Dugan never reported an accident to her supervisors, healthcare providers or insurer, and in fact repeatedly denied any accident, all of which cast grave doubt on her claim. It concludes that Ms. Dugan’s credibility was so impaired that the only reasonable view would be that her present condition is merely a continuation of her numerous prior back injuries.

Ms. Dugan responds that the WCJ’s finding of a work-related injury was reasonable and not plainly wrong. Downplaying her medical history, she urges that nothing seriously discredited her account of an accident, and that the description of her current disability, corroborated by her husband and by Dr. Ferrer, fully supported the finding that whatever happened in the final days of her work at St. Francis was new and disabling. Stevens v. Wal-Mart Stores, 27,977 (La.App. 2 Cir. 11/1/95), 663 So.2d 543. She asks this court to affirm.

A workers’ compensation claimant must prove by a preponderance of the evidence that she received “personal injury by accident arising out of and in the course of’ her employment. La. R.S. 23:1031 A; Buxton v. Iowa Police Dept., 2009-0520 (La.10/20/09), 23 So.3d 275. Although the workers’ compensation law is liberally construed in favor of coverage, the claimant’s burden of proving an accident is not relaxed; she must prove by a preponderance of the evidence that an accident occurred. McLin v. Industrial Specialty Contractors Inc., 2002-1539 (La.7/2/03), 851 So.2d 1135; Sheppard v. Isle of Capri, 40,048 (La.App. 2 Cir. 8/17/05), 909 So.2d 699.

A claimant’s testimony alone may be sufficient to establish an accident provided that “(1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the woi'ker’s testimony is corroborated by the circumstances following the alleged incident.” Bruno v. Harbert Int'l Inc., 593 So.2d 357 (La.1992). In determining whether the Bruno elements are satisfied, the commentators have articulated six pertinent factors the courts have considered: (1) late report, (2) supervisor and coworker testimony, (3) family and friends testimony, (4) medical evidence, (5) continuing to work, and (6) prior injuries. Sheppard v. Isle of Capri, supra; 13 H. Alston Johnson III, Workers’ Compensation Law & Practice (La. Civil Law Treatise) § 253 (4th ed.2002); 1 Denis Paul Juge, Louisiana Workers’ Compensation, § 8:1 (2d ed.2002).

Factual findings in workers’ compensation cases are subject to the manifest error rule. Buxton v. Iowa Police Dept., supra. Under this rule, the reviewing court does not decide whether the factfin-der was right or wrong, but only whether its findings are reasonable. Id. Whether the claimant has carried her burden of proof and whether testimony is credible are questions of fact to be decided by the WCJ. Id. When there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Winford v. Conerly Corp., 2004-1278 (La.3/11/05), 897 So.2d 560; Sheppard v. Isle of Capri, supra.

19Ms. Dugan’s testimony painted an ambiguous picture, as she initially denied suffering a work-related injury, gave inconsistent medical histories and, admittedly, had a serious history of back injuries. Nevertheless, her experience with back pain may have led her to believe that this injury, like the earlier ones, would resolve soon; this would explain her delay in reporting it. Notably, she has not worked since this incident, and her husband confirmed that she is now “bent” and unable to do most things. The decisive evidence was Dr. Ferrer’s reading of the MRI taken on May 26, 2008. He found a herniation at L4-5 which he called “recent” because it showed no calcification, consistent with lifting a heavy patient and likely to produce unbearable pain. These findings all correspond with Ms. Dugan’s testimony. Moreover, the MRI showed degenerative disc disease at L5-S1, consistent with the medical history that Ms. Dugan did not provide to Dr. Ferrer. Despite all the credibility problems, the WCJ was not plainly wrong to find that Ms. Dugan sustained a new and disabling injury while working at St. Francis. The finding of a compensable injury and award of TTD will be affirmed.

This assignment of error lacks merit.

Penalties and Attorney Fees

By its second assignment of error, St. Francis urges the WCJ erred in assessing penalties and attorney fees without any reasonable basis. It contends that when there is a serious defense presented in good faith, the statutory penalty and attorney fee are inappropriate. Johnson v. Fidelity & Cas. Co. of N.Y., 42,714 (La.App. 2 Cir. 5/5/93), 618 So.2d 651. It asserts that Ms. Dugan’s repeated denial that any work-related injury occurred fully justified the failure to begin paying benefits. It requests a complete reversal of these awards.

Ms. Dugan responds that the penalties and attorney fee were proper in that St. Francis merely argued that she failed to state the correct date of her injury, and this did not reasonably controvert her claim, for which the evidence easily proved a new and disabling injury. She submits that these awards should be affirmed. By answer to appeal, she contends that WCJ erred in awarding an attorney fee of only $7,000 instead of the $8,480 reflected in counsel’s statement, and requests an additional $3,000 fee for handling the appeal.

Failure to provide payment of benefits will result in a penalty and attorney fee “unless the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” La. R.S. 23:1201 F(2); McCarroll v. Airport Shuttle Inc., 2000-1123 (La.11/28/00, 773 So.2d 694); J.P. Morgan Chase v. Louis, 44,309 (La.App. 2 Cir. 5/13/09), 12 So.3d 440. The phrase “reasonably controvert” means that the defendant must have “some valid reason or evidence on which to base his denial of benefits.” Brown v. Tex-LA Cartage Inc., 98-1063 (La.12/1/98), 721 So.2d 885; J.P. Morgan Chase v. Louis, supra. Awards of penalties and attorney fees in compensation cases are essentially penal, and are imposed to deter indifference and undesirable conduct by employers and their insurers toward injured workers. Trahan v. Coca Cola Bottling Co., 2004-0100 (La.3/2/05), 894 So.2d 1096; Langley v. Petro Star Corp. of La., 2001-0198 (La.6/29/01), 792 So.2d 721. Although the benefits in the Workers’ Compensation Act are to be liberally construed, penal statutes are strictly construed. Trahan v. Coca Cola Bottling Co., supra; Langley v. Petro Star Corp. of La., supra. Penalties should not be imposed in doubtful cases, where a bona fide dispute exists as to the claimant’s entitlement to benefits; the mere fact that an employer loses a disputed claim is not determinative. J.E. Merit Constructors Inc. v. Hickman, 2000-0943 (La.1/17/01), 776 So.2d 435; J.P. Morgan Chase v. Louis, supra.

In penalizing St. Francis, the WCJ focused on one fact only, the comparison between Ms. Dugan’s condition before and after the incident. The WCJ completely ignored the substantial defenses to the claim. St. Francis investigated and found that Ms. Dugan never reported a work-related injury to any coworker or supervisor, and explicitly denied such to Ms. Owens and Ms. Downey. Then St. Francis found that Ms. Dugan had a catalogue of prior back injuries, most of which produced symptoms strikingly similar to her current complaints. Still further, St. Francis showed that Ms. Dugan was literally “all over the board” in reporting to healthcare providers when her current condition actually began. Most tellingly, Ms. Dugan maintained, in her disputed claim and until the second day of trial, the her injury occurred on a date which time card records conclusively showed she was not even at work If the WCJ had deigned to consult these facts, it would have inevitably concluded that St. Francis’s failure to pay had nothing to do with “indifference and undesirable conduct.”

112This record easily shows that St. Francis had more than reasonable grounds to suspect that Ms. Dugan’s injuries predated her employment at St. Francis, in light of her serious medical history and inconsistent reports to coworkers and healthcare providers. The award of penalties and an attorney fee was an abuse of discretion and will be reversed. A fortiori, the request for additional attorney fees cannot be sustained.

This assignment of error has merit. The award of penalties and attorney fees is reversed, and the request for additional attorney fees is denied.

Legal Interest and Court Costs

By her answer to appeal, Ms. Du-gan also contends the WCJ erred in failing to award legal interest and court costs. In support, she cites La. C.C.P. art. 1921, which provides for legal interest “as prayed for or as provided by law.” She requests an award of legal interest from date of judicial demand, and legal interest on the award of penalties and attorney fees from date of judgment.

Any compensation awarded and all payments thereof “shall bear judicial interest from the date compensation was due until the date of satisfaction.” La. R.S. 23:1201.3 A; Trahan v. Turner Industries, 2008-704 (La.App. 3 Cir. 12/10/08), 999 So.2d 268. The judgment is silent as to legal interest; it will be amended to provide for legal interest from the date compensation was due until the date of satisfaction.

Further, the judgment explicitly states, “St. Francis Medical Center is hereby cast with all costs of these proceedings,” so the contention that the [ ,3WCJ erred in failing to assess costs is plainly without merit. Finally, even though statutory attorney fees are subject to postjudgment interest, Sharbono v. Steve Lang & Son Loggers, 97-0110 (La.7/1/97), 696 So.2d 1382, 79 A.L.R. 5th 733, our previous finding that St. Francis reasonably controverted the claim and is not liable for penalties and attorney fees under R.S. 23:1201 F(2) obviates any consideration of this claim.

Conclusion

For the reasons expressed, the judgment is affirmed insofar as it finds that Ms. Dugan sustained a work-related injury and awarded her TTD, medical benefits and incidental expenses. The judgment is amended to award judicial interest from the date compensation was due until the date of satisfaction. The judgment is reversed insofar as it imposed penalties and an attorney fee, and the request for an additional attorney fee is denied. Each side is to bear its own appellate costs. La. C.C.P. art. 1920.

AFFIRMED IN PART, AMENDED, AND REVERSED IN PART.


source: Caselaw Access Project

author: LAMAR, Justice,

license: Public Domain

text:
    J.B. HUNT TRANSPORT, INC. v. FORREST GENERAL HOSPITAL.
    No. 2008-CA-02111-SCT.
    Supreme Court of Mississippi.
    May 20, 2010.
    Morton W. Smith, David C. Dunbar, Ridgeland, attorneys for appellant.
    R. Mark Hodges, Kimberly N. Howland, Jackson, attorneys for appellee.
   LAMAR, Justice,

for the Court:

¶ 1. J.B. Hunt Transport, Inc. (“J.B. Hunt”) filed suit against George E. McGee, M.D., and Forrest General Hospital (“FGH”) asserting claims of negligence, medical malpractice, and common-law indemnity arising from the treatment of Melissa Hall, who was injured in an automobile accident by a tractor-trailer owned and operated by J.B. Hunt. J.B. Hunt negotiated a settlement with Hall’s estate and wrongful-death beneficiaries before.filing the instant action. The trial court granted FGH’s motion to dismiss, and J.B. Hunt appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On March 8, 2006, Melissa Hall was seriously injured in a motor-vehicle accident involving a tractor-trailer operated by J.B. Hunt. Hall was transported by ambulance to the emergency room at Forrest General Hospital, where she was diagnosed with a closed head injury, as well as other injuries. Hall subsequently was admitted to the intensive-care unit.

¶ 3. On March 11, doctors attempted unsuccessfully to wean Hall from a ventilator. On March 14, a spontaneous breathing trial proved unsuccessful, and Hall remained dependent on sedation and a ventilator.

¶ 4. On the morning of March 16, Hall underwent a tracheostomy to provide long-term access for the breathing tube utilized by the ventilator. However, no order was given that the tracheostomy tube be suctioned periodically. Over the next twelve hours, the tube was suctioned only twice, despite several notations that Hall had developed a severe, productive cough after insertion of the tube. At 10:00 p.m., having gone seven and one-half hours since the tube was last suctioned, Hall began coughing while being bathed by a nurse, dislodging the tube. Attempts to suction and reinsert the tube were unsuccessful, and Hall went into cardiopulmonary arrest. After failed attempts to resuscitate her, she was pronounced dead at 10:22 p.m.

¶ 5. After entering into a settlement agreement with Hall’s estate and wrongful-death beneficiaries, J.B. Hunt filed the action at issue in this case, asserting claims of negligence, medical malpractice, and common-law indemnity, and averring that “the wrongful death of Melissa Hall arose distinctly and exclusively as a result of the conduct of the Defendants and not from any actions or omissions of Hunt.” J.B. Hunt further asserted that it was “forced to pay as a matter of law and under duress a significant sum for the damages caused by the Defendants and did so as a result of formal claims by counsel for [Hall’s] family.” Finally, J.B. Hunt asserted that it had “an implied or common law indemnity claim under Mississippi law against the Defendants and, therefore, [had] standing to bring [the] action.” J.B. Hunt sought damages as follows:

As a direct and proximate result of the Defendants’ conduct, Plaintiff has paid additional consideration and is entitled to recover from the Defendants the value attributable to the following:
a. Melissa’s additional pain and suffering on March 16, 2006, preceding her death;
b. Melissa’s mental anguish on March 16, 2006, preceding her death;
c. Melissa’s resulting medical expenses associated with the code and her death;
d. Melissa’s funeral and burial expenses;
e. Melissa’s life expectancy and loss of enjoyment of life;
f. Melissa’s wrongful death; and
g. All elements of damage permitted by law and available under the Mississippi Code Annotated of 1972, as amended.

¶ 6. FGH moved to dismiss the complaint for failure to state a claim pursuant to Mississippi Rule of Civil Procedure 12(b)(6). The trial court granted the motion, finding that J.B. Hunt did not have standing to bring the action “based solely on its indemnity claim,” as “ ‘a claim for indemnity does not arise until there is legal liability to pay a judgment in favor of [the plaintiff.]’ ” (quoting Mississippi Transp. Comm’n v. Jenkins, 699 So.2d 597 (Miss.1997)). The trial court further held that J.B. Hunt was not a beneficiary under the wrongful-death statute and, as such, “lacked standing to bring the claim upon which any right of indemnification depends .... ”

¶ 7. From this judgment, J.B. Hunt appeals, asserting: (1) that the trial court erred when it found that J.B. Hunt did not have standing to bring a common-law indemnity suit against FGH, and (2) that the trial court erred when it found that J.B. Hunt sought indemnity for severed aspects of a wrongful-death claim. Finding the first issue dispositive, we decline to address the second issue.

ANALYSIS

¶ 8. This Court employs a de novo standard when reviewing a motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure. Rose v. Tullos, 994 So.2d 734, 737 (Miss.2008) (citing Cook v. Brown, 909 So.2d 1075, 1077-78 (Miss.2005)). Such a motion for failure to state a claim challenges the legal sufficiency of the complaint. Id. In order to affirm an order granting dismissal on a Rule 12(b)(6) motion, “[t]he allegations in the complaint must be taken as true, and there must be no set of facts that would allow the plaintiff to prevail.” Wilbourn v. Equitable Life Assurance Soc’y of the U.S., 998 So.2d 430, 435 (Miss.2008) (citing Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 893 (Miss.2006)).

¶ 9. The question presented by this appeal is whether J.B. Hunt, a negligent tortfeasor in a motor-vehicle accident which resulted in serious injuries to Melissa Hall, can seek indemnity from a healthcare provider (FGH) whose subsequent negligent medical treatment of Hall, according to the allegations of the Complaint, caused Hall’s death. We hold that, under the facts before us, an action for indemnity may not be brought and affirm the trial court’s dismissal.

¶ 10. This Court has set forth the basis for a claim of indemnity as follows:

An obligation to indemnify may arise from a contractual relation, from an implied contractual relation or out of liability imposed by law. When one person is required to pay money which another person in all fairness should pay, then the former may recover indemnity from the latter in the amount which he paid, provided the person making the payment has not conducted himself in a wrongful manner so as to bar his recovery.

Bush v. City of Laurel, 215 So.2d 256, 259-60 (Miss.1968) (emphasis added).

¶ 11. Further, this Court has said that:

Two critical prerequisites are generally necessary for the invocation of noncon-traetual implied indemnity in Mississippi: (1) The damages which the claimant seeks to shift are imposed upon him as a result of some legal obligation to the injured person; and (2) it must appear that the claimant did not actively or affirmatively participate in the wrong.

Home Ins. Co. v. Atlas Tank Mfg. Co., 230 So.2d 549, 551 (Miss.1970) (emphasis added).

¶ 12. American Jurisprudence states the rule succinctly:

It should be noted that as a general rule, in the absence of an express contractual or statutory right to indemnity, a party may bring an action for common-law indemnification only if he or she is without fault. Common-law indemnity is not a fault-sharing mechanism.... One who is him or herself at fault is not due indemnity, because liability for indemnity exists only when the party seeking indemnity, the indemnitee, is free of fault and has discharged a debt that should be paid wholly by the indemnitor.

41 Am.Jur.2d Indemnity § 21 (2005) (emphasis added).

¶ 13. FGH argues that J.B. Hunt is a joint tortfeasor, and as such is not entitled to indemnity as there is “no right of indemnity between joint tortfeasors.... The implied common law indemnity cause of action provides a narrow exception to this rule, allowing a joint tortfeasor to recover from another joint tortfeasor if the tortfeasor asserting indemnity was not guilty of any active negligence ...”

¶ 14. J.B. Hunt responds by admitting its original negligence, but argues:

It is admitted that Hunt was actively negligent at the time of the accident, in that Hunt’s driver caused the accident and injured Ms. Hall. However, Hunt’s negligence was too far removed in time from the death of Ms. Hall, to have still been actively negligent at the time Ms. Hall died. Further, Hall had continually improved medically and was making a recovery. The medical evidence, as submitted at the trial court level and which must be taken as true, shows clearly that Ms. Hall would have survived with only mild to moderate disability, but for the separate negligent acts of FGH causing Hall’s sudden death. These facts ... show that Hunt’s negligence was remote enough to have become passive negligence at the time of FGH’s negligent actions.

¶ 15. J.B. Hunt’s liability stems from its admitted negligent acts, which resulted in serious injuries to Hall, forcing her to seek medical care and hospitalization. Obviously Hunt did not participate in the medical care and treatment of Hall, but it was responsible for the event which caused her to seek medical treatment at FGH. We reject Hunt’s argument that it was guilty of only “passive negligence” in the death of Hall. In our opinion, the facts of this case could not support a finding that J.B. Hunt was “free of fault” or that it did not “actively or affirmatively participate in the wrong.”

¶ 16. We find no authority in this state, nor does J.B. Hunt provide us with any, which would provide rights of indemnity in favor of an actively negligent tortfeasor. To the contrary, the cases in this state that have considered indemnity between tort-feasors have allowed recovery only when one party is liable merely “because of passive negligence in failing to remedy the defect or because of a non-delegable statutory duty.” Bush v. City of Laurel, 215 So.2d 256, 260 (Miss.1968) (allowed indemnity because the City was liable only for passive negligence); Long Term Care, Inc. v. Jesco, Inc., 560 So.2d 717 (Miss.1990) (denied indemnity because Long Term Care was actively negligent).

¶ 17. Moreover, while J.B. Hunt maintains that its cause of action is for indemnity, this is in fact an effort to recover contribution from a successive or subsequent tortfeasor. “It must be remembered that indemnity is an all or nothing proposition damage-wise, and hence should be an all or nothing proposition fault-wise. Apportionment of damages is not contemplated by it. That is the function of contribution.” Transom Lines v. Barnes, 17 ArizApp. 428, 498 P.2d 502, 509 (1972). Recovery under these circumstances has not been adopted in this state either by statute or by decision of this Court. See. Miss Code Ann. § 85-5-7(4) (Rev.1999) (providing for contribution only among joint tortfeasors who act in concert, not among successive and distinct tortfeasors).

CONCLUSION

¶ 18. Based on the foregoing analysis, we find that the trial court did not err in granting Forrest General’s motion to dismiss. Therefore, we affirm dismissal of the complaint by the trial court.

¶ 19. AFFIRMED.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR.

      . Dr. McGee was subsequently dismissed.


author: ROBERTS, J.,

text:
    AMFED COMPANIES, LLC and American Federated Insurance Company, Appellants, v. Jennifer Brown JORDAN, Appellee.
    No. 2007-CA-01422-COA.
    Court of Appeals of Mississippi.
    Aug. 25, 2009.
    Rehearing Denied Dec. 15, 2009.
    Certiorari Granted March 31, 2010.
    Certiorari Dismissed as Improvidently Granted May 20, 2010.

      Robert P. Thompson, Caryn Lynne An-lage, Lori Jordan Graham, Ridgeland, for Appellants.
    William H. Jones, for Appellee.
    Before MYERS, P.J., IRVING and ROBERTS, JJ.
   ROBERTS, J.,

for the Court.

¶ 1. This is an appeal of a jury’s determination that a workers’ compensation insurance carrier acted in bad faith when it delayed paying on a claim. Jennifer Brown Jordan filed a bad-faith claim based on the failure of the carrier to timely pay benefits. A jury sitting before the Jones County Circuit Court found AmFed Companies, LLC, the workers’ compensation carrier, liable for bad faith and awarded compensatory damages which were later set off against money AmFed tendered to Jennifer after she filed her lawsuit, but prior to trial, for a final compensatory damages award of approximately $34,000. The jury also awarded Jennifer $200,000 in punitive damages. Additionally, the circuit court awarded Jennifer $32,500 in attorney’s fees. Aggrieved, AmFed appeals. After careful consideration, we find that the circuit court improperly instructed the jury during the punitive-damages portion of the bifurcated proceedings. However, we do not disturb the jury’s decision regarding compensatory damages. Accordingly, we affirm in part and reverse and remand in part.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 4, 2001, James H. Brown III died in a work-related electrocution incident during his employment with A & B Electric Company in Jones County, Mississippi. James’s widow, Jennifer, and his dependent children filed a claim for workers’ compensation benefits. A & B’s workers’ compensation carrier, AmFed, assigned the claim to adjuster Stacy Stuart.

¶ 3. In May 2001, Stuart mailed the first benefit payments to James’s widow, Jennifer. Those payments were payable to Jennifer as James’s widow and James’s three dependent children. Stuart set up Jennifer’s claim in AmFed’s deferred payment system. That system was to issue biweekly checks to Jennifer as well as James’s three children. However, when Stuart set up Jennifer’s payments, Stuart inadvertently directed the program to pay Jennifer approximately $170 every two weeks, instead of $340. In other words, Jennifer and the children would receive one-half of the benefits that they were due.

¶ 4. In June 2001, Jennifer, acting on her own, obtained a lump-sum order from the Mississippi Workers’ Compensation Commission (the Commission). Jennifer did not file the lump-sum order, so AmFed was unaware of it. Meanwhile, Jennifer had hired attorney Glenn White to file a wrongful death action based on James’s electrocution.

¶ 5. In February 2002, Stuart’s replacement, adjuster Daron Perkins, called Jennifer. Perkins contacted Jennifer to ask how the children were doing. Perkins was not aware that Jennifer had filed a wrongful death claim. Jennifer did not mention her lump-sum order. On February 7, 2002, White sent Perkins a letter. White informed Perkins that he was representing Jennifer and the estate. White also informed Perkins that “[a]ll future communications concerning this matter should be directed to [his] office.” Consequently, AmFed did not again attempt to contact Jennifer directly.

¶ 6. On April 11, 2003, White informed his client, Jennifer, that the wrongful-death suit was futile and that it should be dismissed. That same day, Jennifer called adjuster Nita Cox, Perkins’s replacement, and asked why she had not received her lump-sum payment. According to Am-Fed, that was the first time it had any notice that Jennifer had obtained a lump-sum order. During that conversation, Jennifer also notified Cox that she had remarried in August 2002. As a result, AmFed terminated Jennifer’s widow’s benefits.

¶ 7. Three days later, Jennifer called Cox again. Cox reported that she had been unable to obtain the lump-sum order. On April 16, 2003, attorney T.G. Bolen, representing AmFed, wrote a letter to Cox and attached a copy of the lump-sum order to that letter. However, Cox was on her honeymoon and was out of the office at that time. Cox did not return to the office until April 30, 2003.

¶ 8. When Cox returned from her honeymoon, she discussed the order with her supervisor, Bob Blaekledge, and then asked Bolen to contact the Commission to obtain a calculation of benefits that Jennifer was due. Cox followed up with Bolen on May 5th and May 12th, but there was no new information. On May 16, 2008, Bolen told Cox that he had written a draft of a letter to the Commission regarding Jennifer’s calculation, but he wanted to discuss it with her before he sent it. Bo-len then revealed that he had discovered Stuart’s initial error in setting up Jennifer and the children’s bi-weekly deferred payments and that, as a result, Jennifer and the children had been receiving one-half of the benefits to which they had been entitled.

¶ 9. On May 27, 2003, Bolen wrote a letter to the Commission. Bolen requested a calculation of benefits. He also reported that AmFed became aware of the order only when Jennifer called and asked about it. Finally, Bolen stated that Am-Fed was prepared to forward the value of the order immediately after receiving the Commission’s calculation of benefits.

¶ 10. On May 29, 2003, attorney William H. Jones filed Jennifer’s complaint for bad faith. Jennifer claimed that AmFed acted in bad faith regarding payment of her benefits. Incidentally, on the same day, the Commission issued its calculation of benefits, including interest, owed to Jennifer and the children. The Commission calculated that AmFed owed Jennifer approximately $72,000. As for James’s three children, the Commission calculated that AmFed owed each of the two minor children approximately $3,500. On May 30, 2003, the Commission mailed its calculation to Bolen.

¶ 11. On June 10, 2003, Bolen faxed the Commission’s calculation to AmFed. On June 26, 2003, seventy-six days after Jennifer first notified AmFed of her order, Bolen sent Jones a letter and three checks. One check represented the amount due to Jennifer. The other two checks represented the amounts that were owed to the children. In his letter, Bolen explained the error in setting up the bi-weekly payments. Bolen also explained that the checks to the children were intended to correct the mistake. Until then, Jennifer was unaware of the under payments.

¶ 12. On July 7, 2003, Jones wrote back to Bolen. Jones requested that AmFed pay Jennifer and the children a 10% penalty for late payment as set forth in Mississippi Code Annotated section 71-3-37(5) (Rev.2000). Having received no response, Jones sent a second later to Bolen on July 21, 2003, and a third letter on August 1, 2003.

¶ 13. On August 4, 2003, Bolen responded to Jones. Bolen reported that he had been and was continuing to locate an order from the Commission regarding whether penalties were allowed. Bolen also noted that “the calculation by the Commission’s statistician did not include the penalty.” According to Bolen, the Commission’s failure to include a penalty “raises the question as to whether [penalties] were due.”

¶ 14. Bolen wrote another letter to Jones on August 8, 2003. Bolen reported that AmFed agreed to pay a penalty, but due to an error in listing the payee’s name, Bolen had requested that AmFed reissue the cheek. Bolen finally sent Jones the penalty payment on August 13, 2003. Bo-len sent Jones a check for approximately $17,808.35. That figure represented a 20% penalty pursuant to Mississippi Code Annotated section 71-3-37(6) (Rev.2000), as opposed to the 10% penalty Jones had requested. Bolen stated that, unless Jones took issue with his analysis of the penalty, he would “consider this aspect of the claim closed and[,] of coursef,] the ongoing weekly benefits will continue to the minor children as required by the statute.”

¶ 15. Over two months later, Jennifer amended her initial complaint. Jennifer raised additional claims on behalf of the children. She also claimed AmFed acted in bad faith regarding the mistake involved with setting up the deferred bi-weekly benefits paid between May 4, 2001, and August 8, 2008.

¶ 16. On March 5, 2007, the parties went to trial. The proceedings were bifurcated as follows: (1) compensatory-damages phase and (2) punitive-damages phase. AmFed unsuccessfully requested a directed verdict after Jennifer presented her case-in-chief. After the compensatory-damages phase of the bifurcated proceedings, the jury returned a verdict for Jennifer and awarded Jennifer $130,568 in compensatory damages.

¶ 17. Jennifer then moved to submit the punitive damages issue to the jury. Over AmFed’s objection, the circuit court granted Jennifer’s motion. After deliberating, the jury awarded Jennifer $200,000 in punitive damages. In total, the jury awarded Jennifer $330,568 in damages.

¶ 18. Post-trial, AmFed moved to set off the jury’s awards by the amounts Am-Fed paid when it tendered the award and the 20% penalty. Additionally, Jennifer filed a post-trial motion for attorney’s fees. The circuit court granted both motions, set off the amounts previously paid by Am-Fed, and ordered AmFed to pay Jennifer $32,500 in attorney’s fees.

¶ 19. On July 30, 2007, the circuit court entered a final judgment of approximately $266,500 for Jennifer. AmFed filed unsuccessful post-trial motions for a judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial. Aggrieved, AmFed appeals. AmFed claims that the evidence was insufficient to find that it acted in bad faith at any point in resolving Jennifer’s claims. AmFed also claims that the circuit court erred when it submitted the punitive damages issue to the jury.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

¶ 20. AmFed argues that the jury’s verdict was not supported by sufficient evidence. Stated differently, AmFed claims that there was insufficient evidence that Jennifer was entitled to recover any damages based on its conduct. “The standard of review for the denial of a motion for directed verdict and a motion for judgment notwithstanding the verdict are identical.” Miss. Power and Light Co. v. Cook, 832 So.2d 474, 478(¶ 6) (Miss.2002). The Mississippi Supreme Court has described the standard as follows:

This Court will consider the evidence in [the] light most favorable to the appel-lee, giving the appellee the benefit of all favorable inferences that may be reasonably drawn from the evidence. If the facts are so overwhelmingly in favor of the appellant that reasonable jurors could not have arrived at a contrary verdict, this Court must reverse and render. On the other hand, if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, this Court must affirm.

Id., (internal citations omitted).

We address the jury’s award of punitive damages in issue II. For brevity’s sake, our analysis will first focus on the jury’s award of compensatory damages.

¶ 21. The Mississippi Workers’ Compensation Law sets forth that workers’ compensation benefits are the exclusive remedy available to an employee who suffers an injury that arises out of and in the course of employment. Miss.Code Ann. § 71-3-9 (Rev.2000). However, the exclusive remedy provision does not bar a common law tort action against an insurance carrier if the carrier commits an intentional tort independent of the compen-sable accident. Pilate v. Am. Federated Ins. Co., 865 So.2d 387, 391(¶ 22) (Miss.Ct.App.2004) (citing Southern Farm Bureau Cas. Ins. Co. v. Holland, 469 So.2d 55, 58-59 (Miss.1984)).

¶ 22. To demonstrate bad faith, Jennifer was obligated to prove three essential elements: “(1) a contract of workers’ compensation insurance existed between the defendant and the plaintiffs employer; (2) the earner denied the plaintiffs compensa-ble workers’ compensation claim without a legitimate or arguable reason; and (3) the denial of benefits constitutes a willful and intentional or malicious wrong.” Rogers v. Hartford Accident & Indem,. Co., 133 F.3d 309, 312 (5th Cir.1998) (citations omitted). The parties stipulate that there was a contract of workers’ compensation insurance between James and AmFed through James’s employer at the time James was electrocuted and died during the course and scope of his employment. Consequently, there is no dispute that there was sufficient evidence of the first element.

¶ 23. As for the second element, whether AmFed denied Jennifer’s claim without a legitimate or arguable reason, it is undisputed that AmFed never denied any of Jennifer’s claims. Jennifer’s claims are based on the concept that AmFed’s delay in resolving her claims constituted bad faith. An unreasonable delay in resolving a claim can qualify as recoverable bad faith. See, e.g., Travelers Indem. Co. v. Wetherbee, 368 So.2d 829, 835 (Miss.1979). Mississippi Code Annotated section 71-3-37(1) (Rev.2000) sets forth that “[cjompensation ... shall be paid ... promptly.” Additionally, “Mississippi law imposes a duty upon insurers to ‘conduct a reasonably prompt investigation of all relevant facts.’ ” Pilate, 865 So.2d at 393(¶ 31) (quoting Bankers Life and Cas. Co. v. Crenshaw, 483 So.2d 254, 276 (Miss.1985)). Accordingly, the issue that follows is whether there was sufficient evidence that AmFed delayed payment of Jennifer’s claims without a legitimate or arguable reason.

¶ 24. James died at work. On June 5, 2001, Jennifer personally filed an “application for payment” form with the Commission. That same day, Commissioners Ben Barrett Smith and Barney Schoby executed an order authorizing that “a full payment be paid immediately” to Jennifer. JoAnn McDonald, former Commission Secretary, testified that it was common practice to forward an executed lump-sum order to an insurer. However, McDonald could not testify that the Commission specifically forwarded Jennifer’s lump-sum order to AmFed. There is no evidence that AmFed actually received Jennifer’s lump-sum order at that time.

¶ 25. On September 11, 2002, AmFed received a letter from the Commission indicating that AmFed had previously been asked to advise the Commission regarding the status of Jennifer’s claim. The Commission also indicated that the letter was the Commission’s second and final request that AmFed file a form designated as B-31 regarding Jennifer’s claim. While that letter likely should have aroused AmFed’s curiosity, the Commission’s September 2002 letter did not directly put AmFed on notice that Jennifer had obtained a lump-sum order.

¶ 26. Jennifer personally notified Am-Fed that she had obtained a lump-sum order when she called Cox on April 11, 2003. Cox did not attempt to obtain a copy of Jennifer’s lump-sum order. Cox did not call the Commission to verify the existence of the lump-sum order. Instead, Cox asked Bolen to investigate the matter. Five days later, Bolen notified AmFed that he had confirmed that Jennifer had indeed obtained a lump-sum order. Cox was out of the office, so she did not receive Bolen’s confirmation. Even so, Cox’s supervisor, Blackledge, testified that he was aware of Bolen’s confirmation. Rather than move Jennifer’s claim along, Blackledge did nothing; opting instead to wait for Cox to handle it when she returned from her two-week honeymoon.

¶ 27. When Cox returned to work two weeks later, Cox again handed over an administrative task to Bolen. That is, rather than personally requesting that the Commission issue a calculation of benefits due to Jennifer per her lump-sum order, Cox asked Bolen to request a calculation. It took approximately one month for Bolen to make that request. The Commission fulfilled Bolen’s request and mailed the calculation to Bolen two days after Bolen requested it. Bolen forwarded the calculation to AmFed on June 10, 2003. Bolen later testified that he did not forward it as soon as he received it. Instead, he waited until after he returned from his vacation. On June 26, 2003, an additional sixteen days after AmFed received the Commission’s calculation, Bolen finally mailed Jennifer the balance of the lump-sum order.

¶ 28. To summarize, AmFed had verification that the lump-sum order existed five days after Jennifer’s notification. For two weeks, nothing happened because Black-ledge was content to let Cox handle matters upon her return. AmFed then asked Bolen to request a calculation. Approximately one month later, Bolen mailed the request. The Commission returned the calculation two days after Bolen requested it. Bolen did not forward the calculation to AmFed at that time. Instead, he went on vacation. He finally forwarded the calculation approximately ten days later. It took more than two weeks for AmFed to prepare checks based on the calculation, get them to Bolen, and for Bolen to mail them to Jennifer’s attorney. From the time Jennifer notified AmFed of her lump-sum order, it took seventy-six days — approximately eleven weeks — for AmFed to pay her the benefits she was due.

¶ 29. There is evidence that could have served as a form of mitigation of AmFed’s investigation. While investigating Jennifer’s claim that she had a lump-sum order, Bolen discovered that AmFed had been paying one-half of the weekly benefits that Jennifer and the children were due. Am-Fed processed that error at the same time that it processed Jennifer’s lump-sum order. While that is commendable, the jury could have found that it was not necessary to delay Jennifer’s lump-sum order to investigate the error in weekly deferred compensation.

¶ 30. AmFed argues that it was entitled to rely on Bolen’s advice. “Generally, a client’s reliance upon advice of his attorney prevents a finding of bad faith.” Liberty Mut. Ins. Co. v. McKneely, 862 So.2d 530, 536(¶ 18) (Miss.2003). Here, there was no evidence that AmFed’s delay was based upon Bolen’s advice. Instead, AmFed abdicated its investigation to Bolen and relied on him solely to perform the administrative functions of verifying that a lump-sum order existed and requesting a calculation of benefits. AmFed’s own written policy stated that “file abandonment to defense counsel is unacceptable.”

¶ 31. The jury did not specify what part of AmFed’s conduct necessitated compensating Jennifer. However, there was sufficient evidence that, based on the totality of circumstances involved in processing Jennifer’s lump-sum order, AmFed’s conduct was the equivalent of an unreasonably delayed investigation with no legitimate or arguable reason for the delays.

¶ 32. That is not the end of our analysis, however. As stated above, the third element of a bad-faith claim is that the denial or delay of benefits constitutes a willful and intentional or malicious wrong. Rogers, 133 F.3d at 312. The Mississippi Supreme Court has held that a plaintiff may prevail in a bad-faith claim against an insurer by demonstrating that the insurer “acted with gross and reckless disregard for the insured’s rights.” McKneely, 862 So.2d at 533(¶ 9) (citations omitted). “Reckless is defined as ... careless, heedless, inattentive; indifferent to consequences.” Turner v. City of Ruleville, 735 So.2d 226, 229(¶ 15) (Miss.1999) (internal quotations omitted). “For conduct to be ‘reckless’ it must be such as to evince disregard of, or indifference to, consequences.” Id.

¶ 33. Cox handed off the administrative task of verifying the existence of the lump-sum order to Bolen, rather than simply calling the Commission herself. Black-ledge knew about the lump-sum order after Bolen verified that it existed. Black-ledge did nothing. He waited for Cox to handle it after she returned from her two-week honeymoon. When Cox returned, once again she simply delegated an administrative task to Bolen instead of personally requesting a calculation. One month later, Bolen requested the calculation. The Commission returned the calculation two days later, but Bolen did not forward it to AmFed. Instead, Bolen went on vacation. After he returned, he finally forwarded the Commission’s calculation to AmFed. Sixteen days later, Bolen had obtained checks from AmFed and could finally mail Jennifer’s lump-sum payment to Jennifer’s attorney.

¶ 34. Through Jennifer, AmFed was aware that Jennifer’s family was suffering financially. Jennifer informed AmFed that her new husband was not working because his ex-wife had been killed in a car wreck and one of her husband’s children suffered two broken legs and a head injury. That injured child required constant care. While none of those tribulations were the fault of AmFed, the jury could have found that AmFed’s habitually delayed “investigation” involving intentional choices to pass along duties was in reckless disregard of the consequences that Jennifer faced based on AmFed’s failure to resolve her lump-sum order.

¶ 35. The jury could have reasonably found that Jennifer presented sufficient evidence that AmFed acted in bad faith. Though the jury might have been justified in reaching an alternative verdict, resolution of such close factual questions is within the province of the jury. Accordingly, we find that the circuit court did not commit reversible error when it overruled Am-Fed’s challenges to the sufficiency of the evidence.

II. JURY INSTRUCTIONS ON COMPENSATORY DAMAGES

¶ 36. AmFed claims the circuit court erred in instructing the jury. The Mississippi Supreme Court has stated the appropriate standard of review as follows:

There are several standards of review that must be used in analyzing the issues in this appeal. First, when reviewing jury instructions on appeal, we must read them as a whole. While a party is entitled to have jury instructions submitted that represent his or her theory of the case, an instruction that incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence need not be submitted to the jury. This Court will not find reversible error where the instructions actually given, when read together as a whole, fairly announce the law of the ease and create no injustice.

Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1054(¶ 6) (Miss.2003) (internal citations and quotations omitted). AmFed raises claims regarding six instructions that were accepted during the compensatory-damages phase of the bifurcated proceedings. We analyze each instruction in turn.

A. Instructions P-1 and P-12

¶ 37. AmFed claims instructions P-1 and P-12 peremptorily instructed the jury to return a verdict for Jennifer for Jennifer’s “lump-sum plus the penalty and the deficiency in the payment of the children’s benefits plus the penalties, even though these claims were unquestionably paid some four years prior to the trial.” AmFed submits that instruction P-1 appears on page 390 of the court record. However, we have reviewed the record and have been unable to locate instruction P-1 on page 390 or any other place in the record. AmFed was obligated to present a record sufficient to demonstrate its allegations. Clayton v. State, 822 So.2d 1141, 1145(¶ 16) (Miss.Ct.App.2002). Having failed to do so, AmFed’s argument is procedurally barred.

¶ 38. Instruction P-12 states:

The Court instructs the jury that Jennifer ... sought and requested declaratory judgment that her minor children were entitled to the unpaid weekly installments together with the ten percent (10%) penalty as provided by law and the Court does hereby grant and award unto Jennifer ... such declaratory judgment. The Court therefore instructs you to find for the minor children in this proceeding in the amount of $3,493.06 for each child respectively, together with the ten percent (10%) penalty of $349.31 for each child.

¶ 39. We find no error in the circuit court’s decision to grant instruction P-12. Although there was evidence that AmFed had paid each of the children $3,493.06 prior to trial, AmFed experienced no prejudice as a result of this instruction. The jury was aware that AmFed had paid those amounts, and the circuit court reduced the final judgment by those amounts. Additionally, AmFed had not paid the 10% penalties to each of the children. Accordingly, we find no merit to AmFed’s complaints regarding jury instructions P-1 and P-12.

B. Instruction P-2

¶ 40. Instruction P-2 states:

The Court instructs the jury that the purpose of the Mississippi Workers’ Compensation Act is to facilitate payment of compensation to an injured worker, or in the event of the death of the worker to his widow and children without delay and without unnecessary costs.
The purpose of this Act is to relieve society and the public of the burden of having to support children and widows who have been left without means of support because of the death of the worker in an industrial accident.

According to AmFed, instruction P-2 “is an abstract statement, not related to the issues and the facts of the case, which was likely to and did confuse and mislead the jury by leaving the impression that Amfed in some way [had] violated the Act.”

¶ 41. However, AmFed does not state specifically how the jury was misled into believing that AmFed violated the Workers’ Compensation Law. Additionally, there is legal support for the statements contained in instruction P-2. “[T]he purpose of the Act is to facilitate the payment of compensation without delay and without unnecessary cost.” H.C. Moody & Sons v. Dedeaux, 223 Miss. 832, 842-43, 79 So.2d 225, 228 (1955). “One of the primary purposes of the Workmen’s Compensation Act is to relieve society of the burden of supporting in orphanages or public almshouses helpless children, who have been left without means of support because of the death of the wage earners who have lost their lives in industrial accidents.” Stanley v. McLendon, 220 Miss. 192, 199, 70 So.2d 323, 326 (1954). It follows that we find no merit to AmFed’s claims regarding instruction P-2.

C. Instruction P-3

¶ 42. Instruction P-3 reads:

The Court instructs the jury that in this case, AmFed Companies, LLC and its employees were the agent of American Federated Insurance Company. That these employees were acting within the scope of their employment and as agents for American Federated Insurance Company during their handling of the claim for workers’ compensation benefits in this proceeding.
The Court further instructs the jury that AmFed Companies, LLC and American Federated Insurance Company are jointly and severally liable for any damages you may determine are appropriate to be awarded unto Plaintiffs consistent with the other jury instructions given to you in this case.

¶ 43. AmFed laments that instruction P-3 “is erroneous because it purports to impute the acts of Amfed Companies LLC to American Federated Insurance Company on the theory that Amfed Companies LLC acted as its agent and is an incorrect statement of law applicable to cases alleging bad faith.” AmFed cites no authority for its argument that instruction P-3 is an incorrect statement of law or that the substantive portion of the instruction is somehow incorrect. Arguments advanced on appeal must “contain the contentions of the appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.” M.R.A.P. 28(a)(6). Failure to comply with M.R.A.P. 28(a)(6) renders an argument procedurally barred. Consequently, we find that this issue is procedurally barred.

D. Instruction P-6

¶ 44. Instruction P-6 states:

The Court instructs the jury that if you believe from a preponderance of the evidence that Jennifer ... is entitled to a verdict against the Defendants for compensatory damages, it will be your duty to award her such damages as will completely compensate her reasonably for all detriment suffered by her, and of which the Defendants conduct was the proximate cause. In arriving at the amount of the award, you shall compensate her reasonably for any fears, anxiety, or other mental or emotional distress, including economic distress or loses [sic] resulting therefrom, if any, suffered by her, and proximately resulting from the conduct of the Defendants in this case consistent with the other instructions of the Court.

¶ 45. AmFed raises two complaints regarding jury instruction P-6. First, Am-Fed claims it is an incorrect statement of law because it states that, upon returning a verdict for Jennifer, the jury was to award damages “which will completely compensate her reasonably for all detriment suffered by her.” AmFed does not specify why that statement is an incorrect statement of law. Additionally, AmFed omits the fact that the instruction stated that the jury was to award damages that were proximately caused by AmFed’s conduct. Instruction P-6 also qualified the particular types of damages that the jury could assess against AmFed.

¶ 46. Second, AmFed complains that instruction P-6 peremptorily instructs the jury to award damages for “fears,” “anxiety,” and “economic distress or losses” “without informing the jury what these terms mean and what facts are necessary to support them.” Be that as it may, jury instruction D-8a reads as follows:

Under the laws of this state, the terms mental anguish and emotional distress are synonymous and used interchangeably to describe the same condition. A Defendant is not liable for compensatory damages on a claim for mental anguish or emotional distress without proof of physical or emotional injury for acts resulting from or caused by a mistake, clerical error or negligence. However, a plaintiff may recover compensatory damages without proof of an actual injury if the defendant’s conduct or behavior is malicious, intentional, willful, wanton, grossly careless, indifferent or reckless, evokes outrage and revulsion and is committed for the purpose of causing harm to the plaintiff. Furthermore, the damages resulting from the conduct or behavior must have been reasonably foreseeable by the defendant at the time the acts were committed. Otherwise, a plaintiff is not entitled to recover compensatory damages for mental anguish or emotional distress without proof of an actual physical or emotional injury.

“This Court will not find reversible error where the instructions actually given, when read together as a whole, fairly announce the law of the case and create no injustice.” Entergy Miss., Inc., 854 So.2d at 1054(¶ 6). Accordingly, we find no merit to this issue.

E. Instruction P-8

¶ 47. Instruction P-8 states:

The Court instructs the jury that damages is the word which express in dollars and cents the injuries sustained by the Plaintiffs. You are the sole judges as to the measure of damages to be assessed; there is no fixed rule. You may consider the full measure of all damages reasonably foreseeable by the failure of the Defendants to pay the workers’ compensation benefits, including that amount owed under the Lump-sum Order of the Workers’ Compensation Commission.
Reasonably foreseeable damages include anxiety and emotional distress, especially in the area of insurance where the loss of a loved one is exacerbated by the attendant financial effects of that loss. Also to be considered is the additional inconvenience and expense incurred in the effort to have the nonpayment or underpayment corrected.
In determining the amount of damages to be awarded as may be shown by a preponderance of the evidence, you may award damages for the following: the type of injuries to the Plaintiffs, if any; past mental anguish, if any; anxiety or emotional distress caused to the Plaintiff, if any, and additional inconvenience and expense, if any.

¶ 48. AmFed’s first complaint is that instruction P-8 instructed the jury that it could consider AmFed’s failure to pay the amount pursuant to the lump-sum order. We addressed a similar complaint under the analysis of instruction P-12. Suffice it to say, we find no error to this complaint.

¶ 49. AmFed’s second complaint is that portions of instruction P-8 “serve[d] no other purpose other than to inflame and prejudice the jury against the [sic] Amfed by further suggesting that the contractual claims had not been paid ... and completely disregards the fact that Amfed had been paying biweekly benefits since [James’s] death.” AmFed did not raise this issue at trial. When the circuit court first considered instruction P-8, counsel for AmFed stated that he had “a problem with the last sentence of that, past, present and future mental anguish.” The circuit court instructed Jennifer’s attorney to revise instruction P-8. The next morning, Jennifer’s attorney presented the instruction in the form that appears above. AmFed’s attorney stated that “in all the cases I’ve read I’ve never seen financial effects of a loss. I don’t think this is the law on damages in this case. And we think it is, as a matter of law, incorrect.” AmFed’s attorneys never claimed that instruction P-8 inflamed and prejudiced the jury. “Appellate courts may not rule upon material matters which the trial judge did not have the opportunity to judge.” Johnson v. Alcorn State Univ., 929 So.2d 398, 407(¶ 31) (Miss.Ct.App.2006). Accordingly, AmFed is procedurally barred from raising is allegation on appeal.

¶ 50. Finally, AmFed argues that instruction P-8 did not “define what additional inconvenience and expense means and [did] not give the jury any guidelines for making an award for [them] even if they are valid elements of damage.” Again, AmFed did not raise this objection at trial, and it is procedurally barred from raising it on appeal. Id.

III. PUNITIVE DAMAGES

¶ 51. After the jury awarded Jennifer compensatory damages, Jennifer moved to submit the issue of punitive damages to the jury. The circuit court granted Jennifer’s motion. Jennifer did not present any additional evidence during the punitive-damages portion of the bifurcated proceedings. After some discussion regarding jury instructions, the circuit court announced that it was “not going to even look at any more instructions from [defense counsel].” The circuit court then had the jury brought back into the courtroom and stated the following:

Members of the jury, you’re back here at this time. The Court is going to make a statement as clear as I can to you as to why you are here.
You found in favor of the plaintiff this morning. There is [sic] some questions as to whether or not, even though you have made a finding that these people are entitled to a compensatory award, you’ve made that finding.
There should be an instruction here, I don’t have one and they’ve not submitted one, whereby the instruction would say to you this — I haven’t had one prepared and I don’t — do /all have an instruction on that anywhere on why the jury is entitled to consider punitive damages or you want me to give them an oral instruction? I don’t have one, and I don’t have anyone here that can type one up.
[DEFENSE COUNSEL]: If it please the Court, an oral instruction would be fine.
[PLAINTIFF’S COUNSEL]: Judge, we have one, but oral — ■
THE COURT: Let me see it. I’ll go ahead and be explaining to you what it’s for. In a case like this there’s been some testimony about the conduct of these people, how they handled this case. You’re very familiar with that. I’m sure you have considered that.
Where you have conduct where it’s questionable as to whether or not it was done in a way that would be satisfactory to the community or to the general public, you have a right to consider whether or not in their handling, the way they handled the case and the way this case came about and the question came up as to whether or not it was sufficiently handled, in accordance with what you’ve already found in a compensatory manner, as to whether or not the way the case was handled that the people should be punished, not for the sake of giving these people a lot of money or whatever, but for the purpose of protecting the public so that if they have done something wrong this would deter them from doing the same thing in the future to other people in the community, other people in society that might be having a problem like this.
Do you understand what I’m saying? You all heard about what punitive damages [are]. You can’t put a corporation or an insurance company in jail. The only way you can affect the outcome or control their conduct, if that’s what you should decide you should do, is by penalizing their pocketbook.
Does that sound simple enough? They say they have an instruction. I thought they did. I’m not going to try to delay this trial and go try to type one up now. It’s the Court’s responsibility to instruct you, but the lawyers usually bring that law for me to do that.[]
All right. Here it is. I’ll read it to you.
The Court instructs the jury that punitive damages are added damages awarded to the plaintiff, such as Jennifer Brown Jordan, for public service in bringing a wrongdoer into account or an example to warn and deter others from repeating the same act. They are never awarded to benefit the injured party as a matter of right, but rather to punish and compel the wrongdoer to have due and proper regard for the rights of the public. In an action for breach of contract, such as the one here, punitive damages are appropriate only when the breach is intended [sic] by intentional wrong, insult, abuse, gross negligence or wanton disregard for the rights of the injured.
Punitive damages are only appropriate when the insurer has acted with malice or gross negligence or reckless disregard for the insured’s right. A clerical error, [sic] honest mistake does not give the [sic] rise to punitive damage.
If you find from a preponderance of the evidence in this case that the acts of the defendants were grossly negligent, attended by intentional wrong, insult, abuse or evidenced a wrong or wanton, willful disregard for the rights of the public, then you shall find for the plaintiff on the issue of punitive damages.

(Footnote added).

According to AmFed, the circuit court erred when it instructed the jury that it could award punitive damages based on a preponderance of the evidence standard of proof. We agree.

¶ 52. Pursuant to Mississippi Code Annotated section 11 — 1—65(l)(a) (Rev.2002), “[pjunitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant ... acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.” By instructing the jury that it could award punitive damages pursuant to a preponderance-of-evidence standard, the circuit court’s instruction relaxed the necessary burden of proof. Accordingly, the circuit court committed a clear error of law.

¶ 53. Consequently, we must reverse the jury’s award of punitive damages and remand this matter to the circuit court for a new trial on punitive damages. We are aware that neither party presented evidence at the original hearing on punitive damages and that such presentation of evidence will likely be necessary on remand. To be clear, we do not disturb the circuit court’s decision to submit the issue of punitive damages to the jury. Additionally, this opinion should not be construed as a finding that Jennifer’s request for punitive damages must be based singularly on the facts and allegations discussed in Issue I. Issue I pertained only to whether the jury heard sufficient evidence to find that Am-Fed acted in bad faith. This opinion should not be interpreted as holding that Jennifer could have only demonstrated bad faith through a presentation of those facts discussed in Issue I. Accordingly, to attempt to demonstrate entitlement to punitive damages, Jennifer may offer proof of all facts that were offered in the first portion of the bifurcated proceedings. We merely find that the circuit court improperly instructed the jury on the correct burden of proof necessary to return an award of punitive damages.

¶ 54. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANTS AND APPELLEE.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND MAXWELL, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . Although it was not named in the suit, in July 2002, A & B Electric and AmFed hired attorney T.G. Bolen to pursue their potential subrogation rights in Jennifer’s wrongful-death suit.

      . Jennifer testified that "the way [shej understood it was [she] was not going to get [the lump-sum payment] until the third-party lawsuit was over.”

      . The Commission concluded that one of James’s children was not entitled to any benefits because, due to his age, he was ineligible to receive benefits.

      . According to McDonald’s testimony:
      [t]he B-31 is a notice of final payment. And that is a form where the — if a judge dismisses a case, then the attorney representing — well, the insurance company will send in this form, which is the B-31 indi-eating that payments have been paid or not paid, but that form usually closes a file. And a B-31 is also filed for lump-sum settlements and for compromise settlements.

      . "At least twenty-four hours prior to trial each of the attorneys must number and file the attorney’s jury instructions with the clerk, serving all other attorneys with copies of the instructions.” URCCC 3.07. "The court’s instructions must be in writing.” Id. "All instructions will be read by the court in whatever order the court chooses, will be available for the attorneys during their arguments, and will be carried by the jury into the jury room when they retire to consider their verdict.” Id. (emphasis added).