author: RANDOLPH, Justice,

text:
    ARCHITEX ASSOCIATION, INC. ("Architex") v. SCOTTSDALE INSURANCE COMPANY ("Scottsdale").
    No. 2008-CA-01353-SCT.
    Supreme Court of Mississippi.
    Feb. 11, 2010.

      Dorsey R. Carson, Jr., Cheri Turnage Gatlin, John Martin Lassiter, Bradley Barron Vance, Eric Foster Hatten, Jackson, attorneys for appellant.
    James W. Shelson, James W. Craig, Justin L. Matheny, Jackson, attorneys for ap-pellee.
    Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   RANDOLPH, Justice,

for the Court.

¶ 1. The parties and amici assert the matter before this Court is a case of first impression. This Court is called upon to determine whether Architex Association, Inc.’s (“Architex”) intentional hiring or utilization of subcontractors to perform work on one of its projects negates coverage included in the Commercial General Liability (“CGL”) coverage part of three separate “Commercial Lines” policies issued by Scottsdale Insurance Company (“Scottsdale”) to Architex. Scottsdale prevailed on its “Motion for Summary Judgment” after the Circuit Court of Rankin County, Mississippi, held that no coverage exists. Architex, a general contractor, appeals that ruling.

FACTS

¶ 2. On April 14, 2000, Architex entered into a contract with Vikram Parshotam and CIS Pearl, Inc. (“CIS”) to construct a Country Inn and Suites hotel (“Inn”). On July 25, 2000, a performance bond with The Hanover Insurance Company (“Hanover”), as surety, and Architex, as principal, was issued for $1.89 million pertaining to work to be performed on the Inn. Architex used multiple subcontractors to build the Inn.

¶ 3. On June 21, 2002, a “Statutory Notice of Construction Lien” was filed by Architex “for construction balance due on Country Inn & Suites ... of $256,075.” Architex had yet to file suit. On July 31, 2002, CIS filed suit against Architex and Hanover. The suit alleged that Architex had breached its contract; “was negligent in the construction of the [Inn] and such negligence is the sole proximate cause or a proximate contributing cause of injuries to [CIS]”; and that the construction lien claimed by Architex constituted slander of title. Regarding breach of contract, CIS’s complaint provided that Architex:

abandoned] the [Inn], refus[ed] to complete the work, performed] work which was contrary to the contract plans and specifications and contrary to applicable codes and building standards, and ... fail[ed] to correct or remedy defective work. Architex has also failed to reimburse [CIS] for monies expended for the [Inn] which were to be paid by Architex.

As to Hanover, CIS asserted a “performance bond claim,” stating that Hanover “has not corrected Architex’s non-conforming, incomplete and defective work on the [Inn].” Architex considered the suit as a mere fee dispute, and did not notify Scottsdale of the suit or otherwise file a claim.

¶ 4. It was not until September 2004 that counsel for CIS communicated to Architex an allegation that testing had revealed serious rebar deficiencies in the foundation of the Inn, inter alia. On October 5, 2004, Architex first notified Scottsdale of that claim. The notice of claim alleged that the “date of occurrence” was September 30, 2004, and described the purported “occurrence,” as follows:

[CIS] filed accusations of faulty work against [Architex] claiming that no rebar was placed in foundation and building is total loss. [Architex] denies this allegation and building is sound.... This accusation was just made by [CIS]. [Archi-tex] has been involved in legal action against [CIS] for failure to pay monies owed on this building.... Please contact [Architex’s] attorney to coordinate defense. [Inn] was built during policy term.

Victor Hamby, the chief financial officer of Architex, testified that notice of the rebar claim “triggerfed] an [‘]occurrence[’] under the policy.”

¶ 5. On October 8, 2004, Scottsdale sent a letter to Hamby confirming receipt of the notice of claim. The letter added that Scottsdale had yet to receive a copy of CIS’s complaint, noted policy exclusions and definitions, and concluded that Scottsdale “is reserving the right to assert all defenses to coverage under the policy.... [Scottsdale] is not waiving any rights nor admitting any obligation under the policy.” On April 21, 2005, at the latest, Scottsdale received a copy of the CIS complaint, which had been filed on July 31, 2002.

¶ 6. On June 29, 2006, Architex filed a “Third Party Complaint” against Scottsdale for failure “to provide Architex with defense and indemnity.” On July 25, 2006, Scottdale filed its answer and defenses seeking dismissal of Architex’s “Third Party Complaint” with prejudice. On September 6, 2006, Scottsdale formally denied Architex’s demand for defense and indemnity, stating, inter alia, that “there has not been any ‘occurrence’ which would trigger” coverage.

¶ 7. Before the controversy erupted between CIS and Architex, Scottsdale had issued three consecutive one-year “Commercial Lines” policies to Architex. Each policy included a CGL part. The policies contained substantially similar language and collectively covered the period from June 29, 1999, to June 29, 2002. An “Extension of Supplemental Declarations” of the CGL part reveals that in exchange for CGL coverage, Architex paid premiums of $6,330 in 1999 and 2000, and $7,250 in 2001. Of these premiums, $3,705 in 1999 and 2000, and $4,233 in 2001, were for “Class Description: Contractors-Subcont Work-In Conn W/ Constr-Bldgs.” The policies, as amended, provided, in pertinent part, that:

SECTION I — COVERAGES

COVERAGE A[-] BODILY INJURY AND PROPERTY DAMAGE LIABILITY

1. INSURING AGREEMENT

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. We may, at our discretion, investigate any “occurrence” and settle any claim or “suit” that may result. But:
(1) The amount we will pay for damages is limited as described in Section III — Limits Of Insurance....
b. This insurance applies to “bodily injury” and “property damage” [ ] only if
(1) The “bodily injury” or “property damage” is caused by an “occurrence” [] that takes place in the “coverage territory”; and
(2) The “bodily injury” or “property damage” occurs during the policy period. ...

2. EXCLUSIONS

This insurance does not apply to[:]

a. Expected or Intended Injury
“Bodily injury” or “property damage” expected or intended from the standpoint of the insured.
j. Damage to Property “Property damage” to:
(5) That particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the “property damage” arises out of those operations; or
(6) That particular part of any property that must be restored, repaired or replaced because “your work”[] was incorrectly performed on it.
Paragraph (6) of this exclusion does not apply to “property damage” included in the “products-completed operations hazard.[]
I.Damage to Your Work
“Property damage” to “your work” arising out of it or any part of it and included in the “products-completed operations hazard.”
This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.
m. Damage to Impaired Property Or Property Not Physically Injured “Property damage” to “impaired property” or property that has not been physically injured, arising out of:
(1) A defect, deficiency, inadequacy or dangerous condition in “your product” or “your work”; or
(2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms.
This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to “your product” or “your work” after it has been put to its intended use.
n. Recall Of Products, Work Or Impaired Property
Damages claimed for any loss, cost or expense incurred by you or others for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of:
(1) “Your product”;
(2) “Your work”; or
(3) “Impaired property”;
if such product, work, or property is withdrawn or recalled from the market or from use by any person or organization because of a known or suspected defect, deficiency, inadequacy or dangerous condition in it.

(Emphasis added.)

,¶ 8. On March 28, 2008, Architex filed a “Motion for Summary Judgment,” asserting that:

[CIS] claims property damage resulting from acts which were not intended by the insured, Architex. Therefore, there is an occurrence and Scottsdale’s policy is triggered. At a minimum, some or all of [CIS’s] allegations are arguably covered by the policy. Scottsdale therefore owes Architex a duty to defend as a matter of law.

Scottsdale responded with its own “Motion for Summary Judgment.” Regarding non-bad-faith claims, Scottsdale maintained that it “does not have a duty to defend because ... [t]he allegations contained in [CIS’s] complaint, as well as those which have claimed to have been asserted outside of the complaint, do not constitute an ‘occurrence’ under the policy or are otherwise excluded from coverage.” (Emphasis added.)

¶ 9. Following a hearing, the circuit court issued a “Bench Opinion Regarding Cross Motions for Summary Judgment.” The circuit court held that “the type of damage, coverage for that damage, whether it was caused by a subcontractor, and all similar issues are moot on account of the meaning of other language in the policy.” Specifically.

this [c]ourt is convinced that this particular case is quite simple and that the controlling law on this policy language revolves around the word “occurrence.” The controlling and/or strongly persuasive case law has defined plainly how that word is to be interpreted and applied. While it may be time for the [c]ourts of this state to expand that language and law so as to bring construction defects under the indemnity and defense obligations included in CGL policy language, this trial court is not at liberty to do so in the face of binding precedent.

(Emphasis added.) According to the circuit court, the:

definition of “occurrence” being parsed by the [Mississippi] Supreme Court in [United States Fidelity & Guaranty Company v. Omnibank, 812 So.2d 196 (Miss.2002)] is verbatim identical to the language in the policy at issue- here. In fact, all of the CGL Coverage Form language quoted in Omnibank and virtually every other case studied appears to be a verbatim recitation of the language at issue here.

(Emphasis in original.)

¶ 10. In the non-construction-defect context of Omnibank, this Court found “that coverage does not apply to ‘bodily injury’ or ‘property damage’ that is expected or intended from the standpoint of the insured.” Omnibank, 812 So.2d at 199-200. In determining whether any “occurrence” exists, “[t]he only relevant consideration is whether, according to the declaration, the chain of events leading to the injuries complained of were set in motion and followed a course consciously devised and controlled by [the insured] without the unexpected intervention of any third person or extrinsic force.” Id. at 200 (quoting Allstate Ins. Co. v. Moulton, 464 So.2d 507, 509 (Miss.1985)) (emphasis added).

¶ 11. The circuit court’s reliance on Omnibank’s definition of “occurrence,” and the Fifth Circuit’s “Erie-gaess” application in ACS Construction Company v. CGU, 332 F.3d 885, 888-892 (5th Cir.2003), concluded that:

whatever work was improper or defective or was not completed, as alleged in the original complaint and via ensuing discovery, was nevertheless the result of intended action by the insured, Architex. Architex had a contract to build [the Inn], It intentionally subcontracted the various portions of the work to others who entered contractual obligations to Architex. Architex undoubtedly did not intend for any of those subcontractors to do defective or improper work. However, the hiring of those subcontractors was not an “accident, including continuous or repeated exposure to substantially the same general harmful conditions” as the definition of “occurrence” sets out plainly in the insurance policy. Additionally, the hiring of the subs, was a “course consciously devised and controlled by [the insured]” which undeniably set in motion the “chain of events leading to the injuries complained of.”

The circuit court ruled that “as coverage was never triggered, the [c]ourt must necessarily find that the duty to defend was likewise never triggered.” In granting summary judgment in favor of Scottsdale, the circuit court “resolve[d] against Archi-tex any claim that it has or had against Scottsdale on account of the CGL policy at issue whether arising as a claim under the policy or a claim for bad faith in any way related to Scottsdale’s decimation to indemnify and/or defend under the policy.”

¶ 12. On May 14, 2008, the circuit court entered its “Final Judgment Dismissing Third Amended Third Party Complaint.” The final judgment specifically stated that “since there is no coverage, and correspondingly no duty to defend, as a matter of law Scottsdale cannot be held liable for its alleged failure to act in good faith and fair dealing, failure to investigate, failure to abide by its own policies and procedures, and failure to abide by nationally-recognized industry standards.” On June 12, 2008, Architex filed notice of appeal.

ISSUE

f 13. This Court will consider only the limited and narrow issue of:

Whether the circuit court erred in concluding, as a matter of law, that the intentional act of hiring subcontractors by the insured general contractor precludes the possibility of coverage.

BACKGROUND

¶ 14. Scottsdale’s “Commercial General Liability Coverage Form,” which contains the policy language quoted in ¶ 7 supra, provides at the bottom of each page “Copyright, Insurance Services Office, Inc. 1997.” “The vast majority of general liability policies sold in this country utilize language drafted by the Insurance Services Office.... ” David Dekker, Douglas Green, Stephen Palley, The Expansion of Insurance Coverage for Defective Construction, 28 Construction Lawyer 19, 19-20 (Fall 2008). These policies:

begin with a broad grant of coverage, which is then limited in scope by exclusions. Exceptions to exclusions narrow the scope of the exclusion and, as a consequence, add back coverage. However, it is the initial broad grant of coverage, not the exception to the exclusion, that ultimately creates (or does not create) the coverage sought.

Id. at 20 (emphasis added). See also Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 10 (Tex.2007) (quoting Weedo v. Stone-E-Brick, Inc., 81 N.J. 233, 405 A.2d 788, 790 (1979)) (“[t]he CGL’s insuring agreement grants the insured broad coverage for property damage and bodily injury liability, which is then narrowed by exclusions that ‘restrict and shape the coverage otherwise afforded’ ”).

¶ 15. Given the nature of these policies, the subject “coverage litigation often boils down to a dispute first over the meaning of the word ‘accident’ within the definition of ‘occurrence’ and then the scope and application of the ‘your work’ exclusion.” Dekker, et al., The Expansion of Insurance Coverage for Defective Construction, 28 Construction Lawyer at 20. In the absence of an “occurrence,” there is no coverage. See U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So.2d 871, 880 (Fla.2007) (“the subcontractor’s exception to the general exclusion for a contractor’s defective work becomes important only if there is coverage under the initial insuring provision”).

¶ 16. There is a clear jurisdictional split regarding whether defective subcontractor construction constitutes an “occurrence” under a CGL policy. See Gen. Sec. Indem. Co. of Ariz. v. Mountain States Mut. Cas. Co., 205 P.3d 529, 535 (Colo.Ct.App.2009) (examples noted); J.S.U.B., 979 So.2d at 885-86 (examples noted); Lamar Homes, 242 S.W.3d at 5-6 n. 2 & 3 (examples noted); Dekker, et al., The Expansion of Insurance Coverage for Defective Construction, 28 Construction Lawyer at 23 nn. 25 & 26 (examples noted). The Supreme Court of Kansas has explained the opposing views, as follows:

one line of cases has held that faulty or improper construction does not constitute an accident; rather, the damage is the natural and ordinary consequence of the insured’s act.[] The other line of cases has held that improper or faulty construction does constitute an accident as long as the resulting damage is an event that occurs without the insured’s expectation or foresights[]

Lee Builders, Inc. v. Farm Bureau Mut. Ins. Co., 281 Kan. 844, 137 P.3d 486, 491 (2006).

ANALYSIS

¶ 17. We find the appropriate analysis should not be driven by policy justifications, but rather should be confined to the policy language. The policy either affords coverage or not, based upon application of the policy language to the facts presented. See Corban v. United Servs. Auto. Ass’n, 20 So.3d 601, 609 (Miss.2009). The second consideration is that neither faulty or improper construction, nor defective workmanship (or gaining knowledge of same) constitutes an “occurrence,” as defined in the policy. The aforementioned are typically the result of either accidental or intentional acts. These CGL policies are designed to provide liability protection for the general contractor and their subcontractors for accidental, inadvertent acts which breach accepted duties and proximately cause damage to a person or property.

¶ 18. This Court has stated that:

[t]he circuit court’s grant [or denial] of a motion for summary judgment is reviewed by this Court de novo. See Wilner v. White, 929 So.2d 315, 318 (Miss.2006).... In this Court’s de novo review, “[t]he evidence must be viewed in the light most favorable to the party against whom the motion has been made.” Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993) (citation omitted).

Kilhullen v. Kan. City S. Ry., 8 So.3d 168, 174 (Miss.2009). See also Corban, 20 So.3d at 609 (the interpretation of an insurance policy is a question of law to which a de novo standard of review applies).

¶ 19. Architex maintains that: [CIS’s] allegations ... include claims of insufficient rebar in the foundation causing structural damage, insufficient water barriers leading to leaks in the walls of the facility, rusted metal in the [Inn’s] pool, and the resulting mold and mildew claims. These allegations, if proven true, are all unexpected from Architex’s standpoint and therefore constitute an occurrence according to the terms of the contract. []

Architex adds that Scottsdale has “accepted premium payments for subcontractor coverage for years,” but “now attempts to deny Architex the benefit of its bargain by claiming that defective subcontractor work is intentional, and contending that a subcontractor’s work becomes the general contractor’s work, i.e. ‘your work,’ which is excluded under the contract.” Therefore, Architex maintains that “[t]he relevant act is not simply subcontracting. Rather, the ‘act’ ... is improperly placing rebar and knocking off a false chimney (which led to water damage to the [Inn]). These acts were accidental, not intentional.” Architex argues the interpretation advocated by Scottsdale and the circuit court “completely negates any incentive for a contractor to purchase insurance.”

¶20. By contrast, Scottsdale contends there is no “occurrence,” as “[flailing to install rebar in a building is not an accident. Defective construction work that causes mold, rust, or water leaks likewise is not an accident.” As to the subcontractor premium referenced by Architex, Scottsdale argues that it “means only that that [pjolicy takes into account that subcontractors will be working on the hotel construction project, and that they have their own insurance. Because the subcontractors had their own insurance, Archi-tex’s premium was reduced.”

¶ 21. Beginning with the premise that Scottsdale’s duties are defined by the terms of the policy, we consider the policy language through the lens of the substantive contract law of this state, which includes the following concepts:

if a contract is clear and unambiguous, then it must be interpreted as written. A policy must be considered as a whole, with all relevant clauses together. If a contract contains ambiguous or unclear language, then ambiguities must be resolved in favor of the non-drafting party. Ambiguities exist when a policy can be logically interpreted in two or more ways, where one logical interpretation provides for coverage. However, ambiguities do not exist simply because two parties disagree over the interpretation of a policy. Exclusions and limitations on coverage are also construed in favor of the insured. Language in exclusionary clauses must be “clear and unmistakable,” as those clauses are strictly interpreted. Nevertheless, “a court must refrain from altering or changing a policy where terms are unambiguous, despite resulting hardship on the insured.”

U.S. Fid. & Guar. Co. v. Martin, 998 So.2d 956, 963 (Miss.2008) (internal citations omitted) (emphasis added). The burden of proving coverage rests with the insured. See So. Life & Health Ins. Co. v. Kemp, 300 So.2d 782, 785 (Miss.1974).

¶ 22. The policies at issue define “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” This Court has previously addressed the meaning of similar and identical definitions of “occurrence” in the factually distinguishable cases of Moulton and Omnibank, respectively.

¶ 23. In Moulton, this Court considered whether, under a comprehensive dwelling policy, an insurer was obligated to defend and indemnify an insured in an action against the insured for malicious prosecution. See Moulton, 464 So.2d at 508. The policy provided, in pertinent part, that “[t]he Company will pay on behalf of the insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence [,]” and defined “occurrence” as “an accident, including injurious exposure to conditions, which results, during the endorsement period, in bodily injury or property damage neither expected nor intended from the standpoint of the Insured....” Id. (emphasis added). Regarding an “accident,” this Court found that “[t]he only relevant consideration is whether, according to the Declaration, the chain of events leading to the injuries complained of was set in motion and followed a course consciously devised and controlled by appellant without the unex pected intervention of any third person or extrinsic force.” Id. at 509 (quoting Ed Winkler & Son, Inc. v. Ohio Cas. Ins. Co., 51 Md.App. 190, 441 A.2d 1129, 1132 (1982)) (emphasis added). As such, this Court determined that:

the contract is sufficiently unambiguous for us to hold that the term accident refers to Mrs. Moulton’s action and not whatever unintended damages flowed from that act.
Mrs. Moulton obviously intended to swear out the complaint against Anthony Walls. Although she may not have intended for him to suffer humiliation or embarrassment, she certainly intended for him to be arrested. By requiring Allstate to defend and indemnify Mrs. Moulton, this Court would have stretched the meaning of accident beyond the bounds of that normally used in the English language and certainly beyond the bounds of the use intended within the policy.

Moulton, 464 So.2d at 510 (emphasis added).

¶ 24. In Omnibank, an individual financed her car purchase through Omni-bank, but failed to obtain car insurance, as required by Omnibank. See Omnibank, 812 So.2d at 197-98. Subsequently, Omni-bank “allegedly ‘force-placed’ insurance coverage on the car and charged and added to the amount of loan the premiums and interest.” Id. at 198. After the individual filed suit in federal court against Omnibank for “wrongfully force-plac[ing] collateral protection insurance,” Omnibank filed a third-party complaint against its insurer, United States Fidelity & Guaranty Company (“USF&G”), for breaching its duty to defend and bad faith. Id. Subsequently, the district court granted USF&G’s motion for summary judgment as to the bad-faith claim, but denied the motion regarding the duty-to-defend claim. See id. After USF&G appealed, the Fifth Circuit certified the following question to this Court, “whether, under Mississippi law, an insurer’s duty to defend under a general commercial liability policy for injuries caused by accidents extends to injuries unintended by the insured but which resulted from intentional actions of the insured if those actions were negligent but not intentionally tortious.” Id. at 197-98 (emphasis added). Addressing policy language with substantively similar coverage provisions, “occurrence” definitions, and “expected or intended injury” exclusions as those in the case sub judice, this Court found such language unambiguous and, applying the “occurrence” interpretation from Moulton, determined that:

Omnibank intended to make a loan to Ramsey, intended to require Ramsey to maintain insurance, intended to place [a] collateral protection insurance provision in the loan agreement, and intended to include the premium in the finance charge. This chain of events was set in motion and followed a course consciously devised and controlled by Omnibank, without the unexpected intervention of any third person or extrinsic force. Clearly, under the rationale of Moulton, USF&G is under no duty to defend....

Id. at 200-01. By virtue of the policy language, “even if an insured acts in a negligent manner, that action must still be accidental and unintended in order to implicate policy coverage.” Id. at 197 (emphasis added). This Court added that “a claim resulting from intentional conduct which causes foreseeable harm is not covered, even where the actual injury or damages are greater than expected or intended.” Id. at 201 (citations omitted). In sum, this Court answered the certified question by stating that “an insurer’s duty to defend under a general commercial lia bility policy does not extend to negligent actions that are intentionally caused by the insured.” Id. at 202 (emphasis added).

¶ 25. Unlike in this case, the insureds in both Moulton and Omnibank were the parties who engaged in intentional and allegedly tortious conduct leading to the injuries complained of. Thus, the insured’s intentional actions did not constitute “accidents,” and the damages resulting therefrom did not amount to “occurrences” under the respective policies. In the present case, by contrast, the only act or conduct considered by the circuit court was the hiring of subcontractors, without consideration of whether the underlying acts or conduct of the insured or the subcontractors proximately causing “property damage” were negligent or intentional or were otherwise excluded by policy language. While the alleged “property damage” may have been “set in motion” by Architex’s intentional hiring of the subcontractors, the “chain of events” may not have “followed a course consciously devised and controlled by [Architex], without the unexpected intervention of any third person or extrinsic force.” Id. at 200-01.

¶26. The Fifth Circuit’s application of Moulton and Omnibank principles in ACS is incongruent with the raison d’etre for procuring liability protection, whether the nature of such coverage be auto, home, or business liability insurance. See ACS, 332 F.3d at 885. In ACS, the United States Army Corp of Engineers entered into a contract -with ACS for the construction of munitions bunkers at an Air Force base. See id. at 887. ACS then hired a subcontractor “to install a waterproofing membrane to the roofs.” Id. Following installation, leaks developed in the roofs, and ACS was unsuccessful in getting the subcontractor to make corrections. See id. “As ACS was still responsible for the project, it was forced to make the repairs thereby suffering a loss in excess of $190,000.” Id. Thereafter, ACS filed a claim with its CGL insurer. See id. The subject policy included nearly identical coverage provisions; “occurrence” and “your work” definitions; and “expected or intended injury,” “damage to property,” and “damage to your work” exclusions as those in the case sub judice. See id. at 887, 892. The CGL insurer denied ACS’s claim on the basis that “no ‘property damage’ caused by an ‘occurrence’ took place....” Id. at 887. After ACS filed suit against its CGL insurer, the district court granted summary judgment in favor of the insurer, “finding that there was no ‘occurrence’ such that ACS was entitled to recovery under the policy.” Id. On appeal, the Fifth Circuit considered “whether, under Mississippi law, an ‘accident’ refers to the unintended consequences of installing the waterproofing membrane or whether an ‘accident’ refers to the underlying acts of the installation itself.” Id. at 888. The Fifth Circuit concluded that the policy language was unambiguous and that “in a CGL insurance policy which defines an ‘occurrence’ as an ‘accident,’ coverage is [not ] triggered if the underlying act was intentional and deliberate [,]” nor does coverage extend to the “unintended consequences ” of such an underlying act. Id. at 890, 892 (emphasis added). Based thereon, the Fifth Circuit found that:

no “occurrence” took place. The negligence in installing the waterproofing membrane in the roofs was the foreseeable cause of the leaks that developed. The act of installing the waterproofing membrane fell outside of the terms of the policy because regardless of whether prompted by negligence (1) ACS’s acts were committed deliberately and the intervention of [the subcontractor] to complete the work was expected; and (2) the likely (and actual) leaking that developed as a result of faulty workmanship was within ACS’s foresight. The faulty workmanship of [the subcontractor] unfortunately amounts to negligence. Hiring the subcontractors and installing the waterproofing membranes were not accidents under the terms of the policy.

Id. at 891 (emphasis added). As to the “subcontractor exception” to the “damage to your work” exclusion, the Fifth Circuit summarily cited Omnibank in concluding that “[t]he exclusionary language in the contract cannot be used to create coverage where none exists.” Id. at 892.

¶ 27. Preliminarily, this Court agrees with ACS that “exclusionary language ... cannot be used to create coverage where none exists.” ACS, 332 F.3d at 892. However, this proposition does not preclude considering the policy “as a whole.” Martin, 998 So.2d at 963. The policy exclusions and exceptions thereto can be (and often are) valuable in determining the parameters of coverage, generally, and the meaning of “accident” within the definition of “occurrence,” specifically. As the Fourth Circuit Court of Appeals has stated:

[t]he import of the “your work” exclusion and its subcontractor exception is not that the exclusion “creates” coverage. Rather, the import is that the exception lends insight into the baseline definition of “occurrence” from which parties and courts interpreting CGL policies should operate. If the definition of “occurrence” cannot be understood to include an insured’s faulty workmanship, an exclusion that exempts from coverage any damage the insured’s faulty workmanship causes to its own work is nugatory. If, on the other hand, the definition of “occurrence” does include an insured’s faulty workmanship, such an exclusion functions as a meaningful “limitation or restriction on the insuring clause.”

Stanley Martin Co. v. Ohio Cas. Group, 313 Fed.Appx. 609, 613 n. 2 (4th Cir.2009) (internal citation omitted) (emphasis added). Similarly, the Supreme Court of Florida has provided that:Insurance

if the insuring provisions do not confer an initial grant of coverage for faulty workmanship, there would be no reason for [the insurer] to exclude damage to “your work[.]”
In addition, a construction of the insuring agreement that precludes recovery for damage caused to the completed project by the subcontractor’s defective work renders the “products-completed operations hazard” exception to exclusion (j)(6) and the subcontractor exception to exclusion (l) meaningless.
Reading these provisions in pari mate-ria with the insuring agreement supports the conclusion that a subcontractor’s defective work that results in damage to the completed project can constitute an “occurrence.”

J.S.U.B., 979 So.2d at 886-87 (emphasis added). In short, if an “occurrence” is a condition precedent to coverage, but “personal injury” or “property damage,” if proximately caused by a negligent act or conduct of a subcontractor, is not covered, then there is no logical explanation for why the policy contains the referenced exclusions and exceptions to exclusions (e.g., the “subcontractor exception”).

¶ 28. It appears that part of the confusion between insurers and insureds, and in conflicting opinions of courts, is caused by branding faulty workmanship, defective work, and other similar phrases as “occurrences” or not. Faulty workmanship, defective work, et al., may be accidental, intentional, or neither. A return to basics leads this Court to conclude that the underlying facts will determine whether the complaint of “property damage” (defective or faulty workmanship) was proximately caused by breach of a recognizable duty and whether that breach was accidental or intentional; or, whether the “property damage” was caused by neither. In two of the three aforementioned scenarios, no coverage would exist. Only when “property damage” is proximately caused by an accident (an inadvertent act) does an “occurrence,” as defined by the policy, trigger coverage. The record before us is insufficiently developed to answer that question with certainty.

¶29. Plainly, an interpretation of the policy which views the term “occurrence” categorically to preclude coverage for the simple negligence of a subcontractor subverts the plain language and purpose of the CGL part of these policies. For example, if a roofing subcontractor negligently causes a roofing tile to fall, injuring a passerby, does such an inadvertent act on the part of the subcontractor automatically defeat coverage simply because the subcontractor was intentionally hired by the insured-general contractor? Could one legitimately argue, as a matter of law, that the “bodily injury” resulting therefrom was “expected or intended from the standpoint of the insured?” We hold it does not. This Court adds that even if there has been “property damage” caused by an “occurrence,” coverage is not automatic. It also must be ascertained, under the facts specific to each case, if any other exclusions and/or exceptions to exclusions apply.

¶ 30. Architex incurred specific premium charges for “Class Description: Contractors-Subcont Work-In Conn W/Constr-Bldgs.” The parties dispute the purpose of these premium payments. Hamby’s affidavit states that Charles Roberts, the Vice President of the Underwriting Division at Southern Insurance Underwriters, explained “Scottsdale’s rationale behind collecting premiums was ‘to ensure that adequate premium is collected to provide coverage for the general contractor’s defense should they be named in a lawsuit involving a covered loss resulting from the actions of a subcontractor.’ ” The affidavit of Elizabeth Baxter, Scottsdale’s Regional Underwriting Manager for the Southeast Region, provides that:

[i]t is ... a misinterpretation of the Program Documents to contend that because the work of subcontractors is considered in determining the premium charged for a policy that all work of subcontractors is, therefore, covered by the policy.
Additional premium is charged for a general contractor’s policy if the general contractor has subcontractors on his project because the potential liability of the general contractor is increased by additional persons and entities working on the project.
In this case, Architex’s premium was actually reduced by the fact that the subcontractors had their own coverage.

The fact that subcontractors had their own insurance coverage does not, in itself, determine whether Architex had coverage for this claim.

¶ 31. Given that this appeal was filed after summary judgment was granted for Scottsdale, this evidence must be viewed in the light most favorable to Architex. See Kilhullen, 8 So.3d at 174. Accordingly, this Court finds that the referenced premium payments support coverage for Archi-tex as to unexpected and unintended “property damage” resulting from work “performed on [its] behalf by a subcontractor.” This further comports with a prior ruling of this Court, in the context of uninsured-motorist coverage, that a presumption of equal coverage exists if the insurer charges a separate premium for such coverage over the regular coverage and that “in order to limit this coverage it must be done in such-clear and unambiguous language that it may be readily seen and understood by the insured that the coverage is limited.” Hartford Accident & Indem. Co. v. Bridges, 350 So.2d 1379, 1381 (Miss.1977). This Court finds no such “clear and unambiguous language” limiting coverage for Architex as to unexpected or unintended “property damage” resulting from work “performed on [its] behalf by a subcontractor.” In fact, as discussed in ¶ 27 supra, the policy expressly includes such coverage.

¶ 32. Therefore, by virtue of the clear and unambiguous language of the policy, as well as the subcontractor premiums paid by Architex, this Court finds Omni-bank distinguishable. The Fifth Circuit’s rebanee thereon in ACS is inconsistent with Mississippi law and, therefore, inapplicable. The subject policy unambiguously extends coverage to Architex for unexpected or unintended “property damage” resulting from negligent acts or conduct of a subcontractor, if not excluded by other applicable terms and conditions of the policy not at issue in this appeal. By failing to consider the policy as a whole, the circuit court erred in its “occurrence” analysis. Under Scottsdale’s CGL policy, the term “occurrence” cannot be construed in such a manner as to preclude coverage for unexpected or unintended “property damage” resulting from work “performed on [Architex’s] behalf by a subcontractor.” As the circuit court’s summary judgment rulings on Scottsdale’s duties were premised upon the absence of coverage, this Court reverses and remands this case for further proceedings consistent with this opinion.

CONCLUSION

¶ 33. This Court concludes that under Scottsdale’s CGL policy, the term “occurrence” cannot be construed in such a manner as to preclude coverage for unexpected or unintended “property damage” resulting from negligent acts or conduct of a subcontractor, unless otherwise excluded or the insured breaches its duties after loss. As such, the circuit court erred in granting summary judgment to Scottsdale on the basis that there was no “occurrence” and, thus, no coverage under the subject pobcy. This case is reversed and remanded for further proceedings consistent with this opinion.

¶ 34. REVERSED AND REMANDED.

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

      . Amicus briefs were filed in support of Archi-tex’s position by the Mississippi Department of Finance and Administration, Bureau of Building, Grounds and Real Property Management; Mississippi Insurance Department; Mississippi Department of Transportation; and the State of Mississippi, ex. rel Attorney General Jim Hood; as well as the Associated General Contractors of America and the Asso-dated General Contractors of Mississippi ("Contractors”). Joinder in the briefs of Ar-chitex and/or the Contractors were filed by the Mississippi Asphalt Pavement Association, Inc.; the Associated Builders and Contractors, Inc., the Mississippi Associated Builders and Contractors, Inc.; the American Subcontractors Association; and the American Subcontractors Association of Mississippi.

      . Architex filed three subsequent amended third party complaints. Notably, the "First Amended Third Party Complaint” added certain subcontractors as third-party defendants and sought a declaratory judgment that Scottsdale had a duty to defend and indemnify Architex under the policy. The "Third Amended Third Party Complaint” alleged "five additional counts against [Scottsdale], including: breach of contract, breach of duty to defend, bad faith refusal to indemnify, bad faith failure to investigate, and breach of duty of good faith and fair dealing.”

      . Scottsdale answered the amended third-party complaints in the same manner.

      . The policies also provided liability coverage for non-owned autos, in exchange for separate premiums.

      . The policies also included "Contractors Special Conditions,” which stated that:
      [y]ou will obtain certificates of insurance from all independent contractors providing evidence of:
      1. Limits of [i]nsurance equal to or greater than the limits provided by this policy; and
      2. Coverage equal to or greater than the coverages provided by this policy.
      Failure to comply with this condition does not alter the coverage provided by this policy. However, should you fail to comply, a premium charge will be made.

      . The policy defines “property damage” as:
      a. Physical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or
      b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the "occurrence” that caused it.

      . The policy defines "occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” (Emphasis added.)

      . The policy defines "your work” as:
      a. Work or operations performed by you or on your behalf; and
      b. Materials, parts or equipment furnished in connection with such work or operations.
      "Your work” includes: a. Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of "your work”....

      . Regarding the "products-completed operations hazard,” the policy states, in part, that it:
      a. Includes all "bodily injury” and "property damage " occurring away from premises you own or rent and arising out of "your product” or "your work " except:

      (2) Work that has not yet been completed or abandoned. However, "your work” will be deemed completed at the earliest of the following times:
      (a) When all of the work called for in your contract has been completed.
      (c) When that part of the work done at a job site has been put to its intended use by any person or organization other than another contractor or subcontractor working on the same project.
      Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, will be treated as completed.
      (Emphasis added.)

      . Rankin County Court Judge Kent McDaniel was appointed as Special Judge in the case sub judice by order of the circuit court.

      . Without filing a cross-appeal, Scottsdale raised the following issue in its Appellee’s Brief, "[djoes an insured violate the notice requirements of its policy by failing to notify its insurer of the existence of a lawsuit for more than two years while defending the suit on its own and tactically positioning its defense to the insurer’s prejudice?” The circuit court expressly avoided addressing this issue in granting summary judgment to Scottsdale, stating "[tjhis [cjourt has not addressed a number of issues and bases urged upon the [cjourt, e.g. whether notice of claim was timely made.” As such, and without passing judgment on the merits of the issue, this Court concludes that the issue is not properly before this Court at this time.

      . A policy justification adopting this view was employed in the circuit court’s reasoning that general contractors should bear the responsibility for properly selecting and supervising subcontractors; and that to hold otherwise would both transform the policy into a performance bond and risk creating moral hazard on the part of general contractors, thereby providing an unjustified windfall to said general contractors.

      . The espoused policy justifications for this view include that it comports with the policy language and that "if the insurer decides that this is a risk it does not want to insure, it can clearly amend the policy to exclude coverage, as can be done simply by either eliminating the subcontractor exception or adding a breach of contract exclusion!,]" J.S.U.B., 979 So.2d at 891; that "the fact that the general contractor receives coverage will not relieve the subcontractor of ultimate liability ... [as] an insurer will have subrogation rights against the subcontractor who performed the defective work[,]” O'Shaughnessy v. Smuckler Corp., 543 N.W.2d 99, 102 (Minn.Ct.App.1996), abrogated on other grounds by Gordon v. Microsoft Corp., 645 N.W.2d 393 (Minn. 2002); and that an insurance policy is distinguishable from a performance bond insofar as "an insurance policy spreads the contractor's risk while a bond guarantees its performance[, and] ... [u]nlike insurance, the performance bond offers no indemnity for the contractor; it protects only the owner.” Lamar Homes, 242 S.W.3d at 10 n. 7.

      . There is no evidence in the record that CIS has filed an amended complaint against Ar-chitex including such claims. Generally, "[t]he obligation of the insurer to defend is to be determined by analyzing the allegations of the complaint or declaration in the underlying action.” Omnibank, 812 So.2d at 200. However, if the "insured learns ... that the true facts, if established, present potential liability of insured, [the] insurer must defend until it appears that facts upon which liability is predicated exclude insurance coverage.” Mavar Shrimp & Oyster Co. v. U.S. Fid. & Guar. Co., 187 So.2d 871, 875 (Miss.1966) (quoting Crum v. Anchor Cas. Co., 264 Minn. 378, 119 N.W.2d 703 (1963)). Scottsdale's expert, Jeffrey Jackson, acknowledges situations arise when "there can be circumstances in litigations that would give rise to a duty to defend ... in a case for a claim that wasn't originally required to be defended.”

      . In the record before us, we have not discerned a claim of negligent hiring or entrustment (for example, hiring a plumber for electrical contract work or hiring a thrice-convicted burglar for security services, etc.).

      . As argued by amicus:
      [a] construction contractor’s simple intent to engage a subcontractor, and quite possibly one with special expertise, is quite different from the intent necessary to deprive that contractor of its CGL insurance coverage for accidents taking place when things go awry in the course of its business. Any effort to equate the two would be contrary to the terms of the CGL policy itself.

      . The underwriter for the CGL policies at issue.

      . Depending on other insurance clauses in all policies providing coverage, the order of payment may be affected.

      . In common jargon, “it is what it is.”


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Willie George KNIGHT, Appellant, v. COVINGTON COUNTY, Mississippi, The Estate of Harold Gene Jones, Deceased, Richard Collins and Sennett Dickens, Administrator, Appellees.
    No. 2007-CA-02179-COA.
    Court of Appeals of Mississippi.
    April 21, 2009.
    Rehearing Denied Aug. 4, 2009.
    Certiorari Granted Oct. 15, 2009.
    Certiorari Dismissed as Improvidently Granted Feb. 18, 2010.

      David Shoemake, attorney for appellant.
    Tommy Bott Rogers, Collins, T. Jackson Lyons, Jackson, attorneys for appellee.

      Before MYERS, P.J., ISHEE and CARLTON, JJ.
   ISHEE, J.,

for the Court.

¶ 1. Following a trial in the Chancery Court of Covington County, the chancellor entered a judgment finding a disputed road to be a private road and, thereby, rejecting the claim of Covington County that the road was a public road. Joined in the suit with the County were Richard Collins, Sennett Dickens — administrator for the Estate of Harold Gene Jones (the Estate), deceased, and Ralph M. Vaughn — trustee of the Ralph Murphy Vaughn Revocable Trust. Additionally, the chancellor awarded prescriptive easements to the parties whose lands bordered G.K. Lane to allow them to use the road. Aggrieved by the judgment, Willie George Knight (Knight) appeals, asserting that the chancellor erred by (1) failing to find that Knight had acquired title to the property by adverse possession, (2) awarding prescriptive easements over G.K. Lane to the parties, and (3) failing to award Knight damages and attorney’s fees from Coving-ton County.

¶2. Finding no error, we affirm the chancellor’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 3. The road at issue in the present case is G.K. Lane, which is located in Covington County, Mississippi. G.K. Lane runs east-west across the property of Harold Jones, who was represented in this case by Dickens. The road begins at a point on Salem School Public Road and ends on the property of Collins. Knight’s property is located to the north of G.K. Lane, and the Estate’s property is located to the south of G.K. Lane. Vaughn’s property is located at the northeastern end of G.K. Lane, at the point where it intersects Salem School Public Road. The driveways to Vaughn’s home and Knight’s home are located on G.K. Lane.

¶ 4. Sometime in early 2000, Knight placed a gate across G.K. Lane, which obstructed access to the road for the other parties who had previously used the road for ingress to and egress from their properties. Thereafter, on February 9, 2001, the County filed suit to have G.K. Lane declared a public road, which would require the gate to be removed. Trial began in this matter in May 2001, but the matter was delayed until February 2002, so the necessary parties could be brought into the action.

¶ 5. The former supervisor for the County, Allison Moody, testified that G.K. Lane had been in existence since the Civil War era. He said that he had been familiar with the road since the 1930s or 1940s when a cousin of his lived there. During his term as supervisor, from 1984 through 2000, he maintained the road as a county road. Maintenance included graveling and grading the road. The County also named the road and placed a street sign at the end of the road. Moody never requested permission from anyone to do work on the road, and he never received any objections from Knight’s father. There was neither a gate at the end of the road nor any obstruction to block public traffic from using the road. According to Moody, the county maps naming public roads labeled G.K. Lane as a public road in 1997, 1999, and 2000.

¶6. Lilan Norris, who worked for the supervisor who preceded Moody, also testified that G.K. Lane was maintained as a public road.

¶ 7. From approximately 1950 until 1957, William Harvey owned the property at the end of G.K. Lane that Collins owned at the time of trial. He always considered G.K. Lane to be a public road, and he said there was never a gate across it. He testified that the County maintained the road by graveling and grading it and installing a culvert. Harvey said that Knight’s father never interfered with his use of the road.

¶ 8. Harvey transferred title of the property to Stanley Jones and William Padgett in 1957. It was during Stanley’s ownership of the back property that Knight’s father acquired the property to the north of G.K. Lane. Stanley said that he did not have any agreement with Knight’s father concerning the use of the road; he just considered it to be public. According to Stanley, the school bus and the mail carrier would drive all the way down the road to his property, and the County would maintain the road. It was Stanley’s understanding that the party who owned land to the south of the road, Maston Jones— predecessor-in-title to the Estate — erected a fence along the southern border of the road to fence in his cows.

¶ 9. Collins purchased the property from Stanley in 1993, and Collins said that at that time, there were fences along the northern borders of G.K. Lane. He said that Knight removed the northern fence about three months after Knight’s father died. Collins testified that the only way to access the main portion of his property is via G.K. Lane. He also testified that the mail carrier would use the road, as well as people such as hunters and timber cutters, who Collins allowed to use his property.

¶ 10. Knight testified that G.K. Lane was not a public road, but he believed the land was described in the deed to Maston Jones. Nevertheless, he said that he and his father had used the road since his father purchased the land to the north of the road in the 1950s. Knight said that he placed a gate on the road to prevent power company workers from entering his land. Initially, the gate was partially down the road, near his driveway. He gave his stepmother a key to the gate, who gave Collins a key. After his stepmother died, he moved the gate to the end of the road, near the point where it joins Salem School Public Road.

¶ 11. Additionally, Knight offered the testimony of a number of his relatives. They testified that they did not see anyone from the County maintaining the road and that it was not a public road. Robert Johnson, a county employee, recounted one instance when Knight’s father told him not to do any work on the work. After that, he did not bushhog the road anymore.

¶ 12. Jerry Miller surveyed the area around G.K. Lane on February 4, 2002, and he proved the points from a survey conducted by David Dunn for Knight in 2001. Miller testified that the old fence line to the north of the road was pretty close to Knight’s property line. He had also previously conducted a survey in 2000 for Collins. At the time that Miller surveyed the land in 2000, the fence to the north of G.K. Lane was still in place. During that survey, Knight told Miller and Collins not to cross the fence to the north of the road, or somebody would be leaving in a body bag.

¶ 13. In the final judgment, the chancellor found that G.K. Lane was at one time a public road. However, after the County allowed a fence to be placed on the road, which was the fence at the entrance to Collins’s property, the road lost its status as a public road. Thereafter, the chancellor found that the various travel on the road did not reestablish it as a public road. It was the chancellor’s conclusion that the road is located partially on the Estate’s land and partially on Knight’s land. Nevertheless, the chancellor found that the adjacent landowners’ use was sufficient to constitute a prescriptive easement. The chancellor issued a second final judgment in response to a motion for clarification. In it, the chancellor denied the motion for a new trial. The chancellor provided more detailed findings of fact and clarified that the use by the Joneses, the Knights, the Collinses, and their predecessors-in-title was sufficient to award a prescriptive easement to the parties whose land bordered G.K. Lane. Therefore, the chancellor awarded a prescriptive easement in favor of those parties. From that judgment, Knight filed the present appeal.

STANDARD OF REVIEW

¶ 14. This Court will not disturb the findings of a chancellor unless those findings were manifestly in error, clearly erroneous, or were the result of the application of an erroneous legal standard. Keener Props., L.L.C. v. Wilson, 912 So.2d 954, 956(113) (Miss.2005) (citing Nichols v. Funderburk, 883 So.2d 554, 556(117) (Miss.2004)). If there is substantial evidence in support of a chancellor’s findings, this Court may not disturb a chancellor’s conclusions. Id. Of course, we will review an issue of law under a de novo standard. Id. (citing Weissinger v. Simpson, 861 So.2d 984, 987(¶ 11) (Miss.2003)).

DISCUSSION

I. Whether the chancellor erred by refusing to find that Knight had acquired title to the property by adverse possession.

¶ 15. First, Knight argues that the chancellor erred in failing to award him title of G.K. Lane by adverse possession. Knight claims that he and his father continuously occupied and maintained G.K. Lane for more than the ten years required to constitute adverse possession. According to Knight, there was no evidence to rebut his claim of adverse possession. He argues such even though the central issue of the trial was actually whether G.K. Lane was a public or private road and even though he offered little evidence to support a finding of adverse possession.

¶ 16. “[F]or possession to be adverse it must be (1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Blackburn v. Wong, 904 So.2d 134, 136(¶ 15) (Miss.2004) (citing Thornhill v. Caroline Hunt Trust Estate, 594 So.2d 1150, 1152-53 (Miss.1992)). The party claiming adverse possession must prove each element by clear and convincing evidence. Id. (citing Thornhill, 594 So.2d at 1153).

1. Under Claim of Ownership

¶ 17. Aside from Knight’s own testimony, there is little to no evidence that Knight’s father occupied G.K. Lane under a claim of ownership. To the contrary, the attorney for the guardian of Jones, elicited the following testimony from Knight on cross-examination:

Q: Mr. Knight, you’re not saying that your father or you neither one ever had a deed to this G.K. Lane, did you?
A: I don’t really understand your question, Mr. Keys.
Q: You don’t claim to have a deed to that G.K. Lane, do you?
A: No, sir. We’ve used it for 50 years without any problems.
Q: Just answer my question. You don’t claim to have a deed to it, do you?
A: No, sir.
Q: And neither did your father have a deed to it?
A: No, sir.
Q: Because that land is describe[d] in the deeds to Maston Jones, is it not?
A: Yes, sir, the road comes in through the Maston Jones place just like it goes over to Mr. Johnson’s place. But the County hasn’t seen fit to make that a public road.
Q: Just answer my question if you will. That G.K. Lane as it exists today is described in the Maston Jones deed, is it not?
A: Probably.

Based on the lack of supporting evidence, as well as Knight’s own testimony to the contrary, we find that Knight did not prove by clear and convincing evidence that he or his father occupied G.K. Lane under a claim of ownership.

2. Actual or Hostile

¶ 18. Knight argues that the element of hostility was satisfied by (1) Johnson’s testimony that Knight’s father stopped him from working on G.K. Lane, and (2) the fact that Knight placed gates across the road. Johnson’s testimony does speak to this element of adverse possession, but it did not prove hostility by clear and convincing evidence. To the contrary, there was ample testimony that the County maintained G.K. Lane, and Miller, the surveyor, testified that Knight’s father only excluded him from crossing the fence to the north of the road. Knight did place a gate across the road, but it was the act of placing the gate and moving it to the end of the road that instigated the present lawsuit.

3. Open, Notorious, and Visible

¶ 19. There was testimony from Knight’s relatives that his father openly used and maintained G.K. Lane. However, there was also ample testimony from the County’s witnesses that others openly used the road and that the County undertook some of the maintenance.

U. Continuous and Uninterrupted for a Period of Ten Years

¶ 20. There did not seem to be any dispute that Knight’s father and Knight used G.K. Lane ever since Knight’s father purchased the property to the north of the road in 1956. However, their use coincided with use by the adjacent landowners.

5. Exclusive

¶21. In Keener, the supreme court quoted the following language regarding the exclusivity requirement as it applies to a claim of adverse possession:

The question in the end is whether the possessory acts relied upon by the would be adverse possessor are sufficient to fly his flag over the lands and to put the record title holder upon notice that the lands are held under an adverse claim of ownership. It was not necessary for Buford or Soterra to exclude others from the use of the road, but only that there was “an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant’s conduct must afford an unequivocal indication that he is exercising dominion of a sole owner.”

Keener, 912 So.2d at 956-57(¶ 6) (quoting Lynn v. Soterra, Inc., 802 So.2d 162, 167-68(¶ 17) (Miss.Ct.App.2001)) (internal citations omitted).

¶ 22. In Soterra, this Court went on to note that the parties had proved exclusive use and that “someone with perfect title does not endanger it by giving permission to others to enjoy the property as well. The other users are not hostile to the owner, since they are using with implied or explicit permission.” Soterra, 802 So.2d at 168(¶ 17). A key factor in finding that the claimant in Soterra met the exclusivity requirement was that others would ask for permission from the claimant to use the land claimed to be adverse. Id.

¶ 28. In the present case, the chancellor determined that there was not clear evidence to establish Knight’s exclusive use of the road. Specifically, the chancellor noted that G.K. Lane had been used by “all owners and predecessors in title to the lands adjoining the lane for their use and their visitorsf] use.” After considering Knight’s argument and reviewing the record before us, we see no error in the chancellor’s determination on this element of adverse possession. Knight put on one witness who testified that his father refused to allow county employees to perform maintenance work on G.K. Lane. Some of Knight’s family members also testified that some people using the road would stop at Knight’s father’s house when they came down the road.

¶ 24. Nevertheless, Knight was required to prove his claim by clear and convincing evidence. The County presented a number of witnesses who testified that anyone was free to use G.K. Lane at any time. The County also called witnesses — including a former supervisor, a highway department employee, and prior owners of the adjacent lands — who testified that G.K. Lane had always been maintained as a county road. We find no error with the chancellor’s determination that the evidence before him fell short of establishing exclusive use by Knight and his father.

6. Peaceful

¶ 25. There was no evidence of any disputes or hostility among the various parties who owned land adjoining G.K. Lane.

7. Conclusion

¶26. In refusing to find that Knight had acquired title to G.K. Lane by adverse possession, the chancellor’s sole finding was that the road was used by all the adjacent landowners, their predecessors-in-title, and their visitors. Such a finding speaks to the exclusivity requirement, and we find that there was substantial evidence to support the chancellor’s finding that the evidence regarding this element was lacking. Additionally, we note that it is unclear whether the Knights occupied the road under a claim of title. Regardless of their claim of title, absent exclusive use, Knight could not prove adverse possession. Accordingly, we affirm the chancellor’s decision to deny Knight’s claim of adverse possession.

II. Whether the chancellor erred in awarding a prescriptive easement to the parties whose lands bordered G.K. Lane.

¶27. Next, Knight argues that the chancellor erred in finding that the use of G.K. Lane by the parties adjacent to it, along with their predecessors-in-title, was sufficient to award them prescriptive easements. Despite Knight’s argument that he should have been awarded title to G.K. Lane by adverse possession, he reaches the conclusion in the present issue that “[t]he overwhelming weight of the evidence presented contradicted any finding of a prescriptive easement to Collins or any other persons.” Knight also makes the present argument notwithstanding the fact that the chancellor also awarded him a prescriptive easement to use G.K. Lane in addition to the adjacent landowners.

¶ 28. The burden of proving a prescriptive easement is the same burden required to prove adverse possession. Keener, 912 So.2d at 956(¶ 4) (citing Thornhill, 594 So.2d at 1152). “In order to establish adverse possession or a prescriptive easement the evidence must show that possession is: (1) under claim of ownership; (2) actual or hostile; (8) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Id. Each of the elements of a prescriptive easement must be proven by clear and convincing evidence. Id. A successful claim of adverse possession results in the claimant receiving ownership of the property while a successful claim for a prescriptive easement results in the claimant receiving an easement to use the property.

1. Under Claim of Ownership

¶ 29. All of the parties testified that they believed they had a right to use G.K. Lane to access their properties.

2. Actual or Hostile

¶ 30. There was actual use of G.K. Lane by the concerned parties. Knight, and later his stepmother, drove down the G.K. Lane to reach the house on the road. Collins and his predecessor-in-title used the road to access the property at the end of the road.

3.Open, Notorious, and Visible

¶ 31. The record reveals that all parties involved were aware of each other’s use of G.K. Lane.

k. Continuous and Uninterrupted for a Period of Ten Years

¶ 32. The present parties and their predecessors-in-title used G.K. Lane continuously since at least the 1950s. The record indicates that at the time of the Civil War, when the road first began to see use, it passed even farther onto the property that was owned by Collins’s predecessors-in-title. Since that time, the parties have used G.K. Lane continuously, if intermittently, to access their respective properties located on the road.

5. Exclusive

¶ 33. In contrast to the exclusivity requirement for adverse possession, the supreme court has recognized a subtle distinction between the use of the term “exclusive” as applied to adverse possession and a prescriptive easement. Keener, 912 So.2d at 957(¶ 8). In reaching this conclusion, the supreme court noted this Court’s analysis in Moran v. Sims, 873 So.2d 1067, 1069(¶ 10) (Miss.Ct.App.2004), in which we stated that “[ejxclu-sivity here means that the use was consistent with an exclusive elaim to the right to use.” In Keener, the court concluded “that the distinction to be made when using the term ‘exclusive’ as it relates to a prescriptive easement does not mean to keep all others out, but to show a right to use the land above other members of the general public.” Keener, 912 So.2d at 957(¶ 8).

¶ 34. The parties to this suit and their predecessors-in-title asserted a right to use G.K. Lane to access their property. This included Knight, who would not have been able to reach the driveway to the house he owned on the property without access to G.K. Lane. We see no error with the chancellor’s finding that the parties satisfied the exclusivity requirement for a prescriptive easement.

6. Peaceful

¶ 35. There was no evidence that the various parties who owned land adjoining G.K. Lane used the road in anything but a peaceful manner. There were no disputes concerning their use of the road until Knight placed a gate across it, which resulted in the present lawsuit.

7. Conclusion

¶ 36. After finding that G.K. Lane was not a public road, a finding that none of the parties have contested on appeal, the chancellor found that the use of the road by Collins, Knight, and the Estate — and their predecessors-in-title — was sufficient to award them prescriptive easements for ingress and egress over the road. The chancellor made this award in light of the parties’ continued use of the road under the impression that they had a right to do so.

¶ 37. The present case involved a road with an origin that predated any of the witnesses who could testify as to how the road came into existence — some of the witnesses having been born as early as the 1920s. In such a situation, the following rule of law is relevant to the issue of whether it was proper to grant a prescriptive easement to present parties:

We hold that where, as in this present case, a use of the lands of another for roadway purposes has been open, visible, continuous, and unmolested since some point in time anterior to the memory of aged inhabitants of the community, such use will be presumed to have originated adversely.

Wilson v. McElyea, 815 So.2d 462, 465(¶ 11) (Miss.Ct.App.2002) (quoting McCain v. Tumage, 238 Miss. 44, 46, 117 So.2d 454, 455 (1960)).

¶ 38. In this case, the uncontradicted testimony was that the predecessors-in-title to the present parties began using G.K. Lane at a time before any living witnesses had any recollection. There was no testimony that there were any disputes among the individuals who owned land adjacent to G.K. Lane until Knight placed a fence across the road and later moved it to the end of the road. Additionally, the Estate had no objection to the possibility of the chancellor granting a prescriptive easement over any portion of G.K. Lane in which it held title.

¶ 39. The chancellor found that G.K. Lane was not a public road; however, the chancellor found that the parties to this suit presented sufficient evidence to support an award of prescriptive easements. We see no error with the chancellor’s award of prescriptive easements to those parties, and we find that this issue is without merit.

III. Whether the chancellor erred in refusing to award Knight attorney’s fees from the County.

¶ 40. Last, Knight argues that the chancellor erred in failing to require the County to pay his attorney’s fees. According to Knight, the chancellor should have awarded him attorney’s fees because the County failed to prove its case, which he argues was essentially a frivolous suit that it knew it could not win.

¶ 41. To support his argument that the chancellor should have awarded him attorney’s fees, Knight cites to Rule 11(b) of the Mississippi Rules of Civil Procedure, which provides that a court may order a party to pay for reasonable expenses incurred as a result of a frivolous pleading. Knight also cites to the Litigation Accountability Act in arguing that attorney’s fees were appropriate because the County filed suit “without substantial justification.” Miss.Code Ann. § 11-55-5(1) (Rev.2002). “The Act defines ‘without substantial justification’ as ‘frivolous, groundless in fact or in law, or vexatious, as determined by the court.’” Foster v. Ross, 804 So.2d 1018, 1022(¶ 13) (Miss.2002) (quoting Miss.Code Ann. § 11-55-3(a)).

¶ 42. The decision of whether to award attorney’s fees to a party is left to the discretion of the chancellor. Markofski v. Holzhauer, 799 So.2d 162, 168(¶ 33) (Miss.Ct.App.2001) (citing Gray v. Gray, 745 So.2d 234, 239(¶ 26) (Miss.1999)).

¶43. Knight attempts to depict the case before the chancellor as completely one-sided, arguing that the County knew that G.K. Lane was a private road and that the County only took action because of pressure from Collins. Despite these claims, the case was not so simple, and the County presented ample evidence to support its claim that G.K. Lane was a public road. Previous supervisors and county employees testified that the County maintained the road and that it was open for anyone to use. The individuals who previously owned property near or adjacent to G.K. Lane testified that the lane was unobstructed and that it was their understanding that anyone was free to use the road. The County also introduced three official county maps, from 1997, 1999, and 2000, which depicted G.K. Lane as a county road.

¶44. Ultimately, we see no merit to Knight’s claims that the County’s case was frivolous or that it was filed without substantial justification. There was no evidence that the County filed the claim in bad faith or without justification. To the contrary, the County presented ample evidence to support its claim. Accordingly, we affirm the chancellor’s decision not to award attorney’s fees to Knight.

¶ 45. THE JUDGMENT OF THE CHANCERY COURT OF COVINGTON 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, CARLTON AND MAXWELL, JJ„ CONCUR.

      . Sennett Dickens, guardian for Harold Gene Jones, non compos mentis, was the original party to the suit, but Harold Gene Jones died intestate in 2003, after which Dickens became administrator for the intestate estate.

      . Vaughan was served with a summons and the pleadings, but he never answered or took part in any of the proceedings. The chancellor instructed the attorneys to prepare an order concerning Vaughan’s part of the property in question, but there is nothing in the record reflecting any judgment against Vaughan.

      .The County did not appeal the chancellor’s finding that the G.K. Lane was not a public road.


text:
    Gregory Deon JONES, Appellant, v. STATE of Mississippi, Appellee.
    No. 2007-KA-01426-COA.
    Court of Appeals of Mississippi.
    Aug. 25, 2009.
    Rehearing Denied Dec. 8, 2009.
    Certiorari Denied Feb. 18, 2010.

      William R. Labarre, Frank L. McWil-liams, Virginia Lynn Watkins, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before LEE, P.J., ISHEE and ROBERTS, JJ.
   ISHEE, J.,

for the COURT.

¶ 1. Gregory Deon Jones was found guilty of armed robbery on July 26, 2006, and was sentenced as a habitual offender to life in the custody of the Mississippi Department of Corrections without eligibility for parole or probation. Jones now appeals that conviction, arguing on appeal that the trial court erred in failing to grant his motion to dismiss for failure to grant a speedy trial. Jones claims that he suffered prejudice because he was unable to locate a critical witness who could have established his innocence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the morning of February 5, 2005, Betty Thomas, a store clerk, was working alone at the Super Saver convenience store on East McDowell Road in Jackson, Mississippi. According to her trial testimony, Thomas observed a man enter the store, grab a drink, and then approach her at the counter for a Swisher Sweets Cigar. As Thomas turned from the counter to retrieve the cigar, the unidentified male approached her from the side, holding a knife, and told her to open the register and sit down. The man took between forty and sixty dollars in cash from the register. According to Thomas, the customer then retrieved Newport cigarettes and again told her to open the register. Thomas complied and the customer looked in the register for more money. Thomas then locked the door after the man left and called the police. She testified at trial that although the robber was only in the store for around five minutes, she was able to get a good look at his face and provided the police with a physical description. Thomas described the suspect as a male with a medium brown complexion with facial hair, being between 160 and 200 pounds and between five-feet-six-inches and six-feet tall. The same day of the robbery, Thomas viewed a photographic lineup containing six pictures and identified Jones as the robber. It was noted at trial that Jones was the only suspect in the lineup that was wearing a jacket with a collar. Photographs taken from the security camera videotape on the day of the robbery were also introduced into evidence, with Thomas identifying the robber in the photographs as Jones.

¶ 3. Officer Jackie Watson, with the Jackson Police Department, was called to the scene of the robbery, took a statement from Thomas, and observed the store surveillance tape during his visit to the store. According to Officer Watson’s trial testimony, Thomas described the suspect’s clothing as a blue-hooded sweatshirt and blue, white, and red pajama bottoms. Officer Watson logged the statement into evidence and informed the arriving detectives of the information he gathered from Thomas. Detective Reginald Cooper was involved in the robbery investigation and testified at trial. Detective Cooper testified that he was informed during the investigation that the suspect was described as wearing a dark pullover top with a “G” emblem or logo on the left side. As a result, Detective Cooper went to various gas stations throughout Jackson searching for the suspect. Detective Cooper and another detective approached an Exxon at the intersection of Ridgewood Road and County Line Road after spotting a person fitting the description of the suspect wearing an identical or similar pullover top to the one described by the clerk in the Super Saver robbery. Detective Cooper testified that he had observed a picture of the sweatshirt from the still photographs taken from the store security camera and had read the description of the sweatshirt. Detective Cooper further testified that he, wearing a police hat and vest, and the other detective approached the person fitting the description at the gas station and attempted to talk to him. At that point, Detective Cooper indicated that the person began running and dropped a knife in the process. Detective Cooper gave chase on foot and followed the man into the Hilton Hotel on County Line Road, where he found him inside a small room. Detective Cooper then placed the suspect under arrest, and at that time the suspect identified himself as Jones.

114. Detective David Domino participated in the investigation and also testified at trial. Detective Domino testified that he identified Jones as a suspect in the robbery and determined that Jones was staying in a room registered to Laverne Williams at the Parkside Inn Hotel on Interstate 55 in Jackson. Detective Domino testified that he spoke with Williams at the hotel and she allowed him to search the room on February 7, 2005. Detective Domino testified that he found clothing similar to the pants worn during the robbery in the room. He also testified that he found three packs of Newport cigarettes in the room.

¶ 5. At the close of the State’s case, Jones made a motion to dismiss, which the trial court denied. The jury returned a guilty verdict, and the trial court sentenced him to serve life as a habitual offender in the custody of the MDOC. It is from this conviction and sentence that Jones now appeals.

STANDARD OF REVIEW

¶ 6. “The standard of review for a speedy trial claim focuses on the fact question of whether the trial delay arose from good cause.” Flora v. State, 925 So.2d 797, 814(¶ 58) (Miss.2006) (citing DeLoach v. State, 722 So.2d 512, 516(¶ 12) (Miss.1998)). “If substantial credible evidence exists from which a finding of good cause may fairly have been made, we will leave the finding undisturbed.” Id. (citing Folk v. State, 576 So.2d 1243, 1247 (Miss.1991)).

DISCUSSION

Motion to Dismiss for Failure to Grant a Speedy Trial

¶ 7. Jones argues on appeal that he was denied his fundamental right to a speedy trial. Jones contends that the trial delay resulted in his inability to locate his girlfriend, Laverne Williams. Jones maintains that Williams remained in the area for several months following his arrest, but she later moved, which made all of his efforts to contact her regarding his defense futile. Jones claims that his right to a speedy trial has been violated, and the only remedy is dismissal of the charges. Jones points out he was arrested on February 6, 2005. He was indicted on April 12, 2005, and arraigned on May 13, 2005. Jones’s original public defender, Thomas Fortner, retired; thus, the original trial date was moved from August 25, 2005, to February 6, 2006. Jones points out he agreed to this order of continuance because of the impending retirement of his original public defender. Jones notes that the date of trial was moved again on two subsequent occasions, first on February 6, 2006, for a case that arose prior to his case, and a second time on May 8, 2006, for a case that arose after his own. Jones filed a motion to dismiss for failure to grant a speedy trial on March 24, 2006. Jones contends that 506 days passed from the date of his arrest, February 6, 2005, to the date of trial, July 24, 2006. Jones also argues that the delay caused him prejudice, as he was unable to secure Williams as a witness. Jones claims that Williams, his companion at the time of the robbery, could corroborate his defense that he was not at the scene of the crime on the morning of February 5, 2005. To support his argument, Jones claims that Williams left the Jackson area in March 2006 to move to Florida. After Williams’s move, Jones claims that efforts to reach her were unsuccessful.

¶ 8. The State argues in turn that the trial court correctly overruled Jones’s motion to dismiss for failure to grant a speedy trial. In support of this position, the State points out that most of the delay was attributable to an agreed continuance by Jones’s counsel and also to unavoidable delays due to crowded dockets. The State also alleges that Jones failed to assert his right to a speedy trial and failed to establish prejudice suffered by the delay.

¶ 9. “Defendants in criminal cases are guaranteed the right to a speedy trial by the sixth and fourteenth amendments to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution of 1890.” Flora, 925 So.2d at 814(¶ 58). Jones claims that his constitutional right to a speedy trial was violated and that the delay prejudiced his case.

¶ 10. In addition, Mississippi Code Annotated section 99-17-1 (Rev.2007) provides a defendant the right to a speedy trial. Unlike the constitutional right, the statutory right provides that an accused shall be tried within 270 days of his arraignment. Miss.Code Ann. § 99-17-1. Jones does not argue that his statutory right to a speedy trial was violated, presumably because the requirements of Mississippi Code Annotated section 99-17-1 would not be met when considering that Jones agreed to a 164-day continuance from August 5, 2005, to February 6, 2006, and also subtracting more than ninety days for the time period between his arrest and arraignment.

¶ 11. In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 38 L.Ed.2d 101 (1972), the United States Supreme Court created a four-part test which Mississippi courts later adopted to determine whether a defendant’s constitutional right to a speedy trial had been violated. Smith v. State, 977 So.2d 1227, 1235(¶ 25) (Miss.Ct.App.2008). “An appellate court must consider: ‘[the] [IJength of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’ ” Id. at 1235(¶ 25) (quoting Barker, 407 U.S. at 530, 92 S.Ct. 2182).

1. Length of Delay

¶ 12. In this appeal, Jones argues that the delay of 342 days from the date of arrest to the date of trial clearly exceeded the eight-month period and was presumptively prejudicial. In Mississippi, when considering a constitutional speedy-trial claim, a delay of eight months or more is presumed to be prejudicial. Brunson v. State, 944 So.2d 922, 926(¶ 12) (Miss.Ct.App.2006) (citing Spencer v. State, 592 So.2d 1382, 1387 (Miss.1991)).

¶ 13. The computation of time begins by looking first at Jones’s date of arrest, that date being February 6, 2005. Jones was indicted on April 12, 2005, and arraigned on May 13, 2005. Jones was first represented by Fortner, a Hinds County Public Defender, until Fortner retired on September 30, 2005. As a result of the retirement, Fortner filed an agreed order of continuance on September 20, 2005, and the trial was moved to February 6, 2006. Jones points out that the trial was again continued to May 8, 2006, and continued again to July 24, 2006, which was the actual trial date. Jones also contends that he did not agree to the second two continuances. Jones argues in his reply brief that contrary to the State’s interpretation, the continuances granted due to overcrowded dockets still weigh against the State. Further, Jones argues that when the record is silent as to the reason for the continuances, the delay should be counted against the State under Barker. Jones points out that there is only one agreed continuance in the file which covers the period from August 25, 2005 to February 6, 2006, totaling 164 days. While Jones acknowledges that one continuance was granted in favor of trying an older murder case, Jones argues that the second continuance, granted in favor of a case that arose after his own case, was improper. Jones argues that the more recent case was given a special trial date merely because the complaining witness was a prominent Jackson business owner.

¶ 14. The State argues that the delay does not meet the presumptively prejudicial 270-day time mark, but it was instead only a delay of 199 days. However, in making this argument, the State ignores the fact that a delay of eight months is presumed to be prejudicial in a constitutional speedy trial analysis. Further, the State argues that Jones’s trial was continued on May 8, 2006, because of a crowded docket and because of a special setting of an older case that was scheduled that date. The State argues that since the record is silent as to whether the other two of the three continuances granted were agreed continuances, these continuances should not be counted against the State. The State further argues that the continuances granted due to a crowded docket and settings of older cases should not be attributable to delay by the State and should not be weighed against the State in the Barker analysis. These are arguments to consider when weighing the reason for the delay.

¶ 15. Here, while there is some disagreement as to whether the delay clearly exceeded the eight-month mark, further inquiry and analysis of the three other Barker factors is prudent. Therefore, we find that the length of the overall delay weights slightly in Jones’s favor.

2. Reason for Delay

¶ 16. While Jones concedes that the first agreed continuance should not count against the State, Jones argues that the other continuances should count against the State. The record is silent as to whether Jones agreed to the two subsequent continuances. Jones argues that the continuances were granted in order to give priority to the newer case of Jackson and was done solely for the convenience of the complaining witness. Jones does acknowledge that some of the delay was attributable to the crowded docket.

¶ 17. The State argues that there is no indication in the record as to whether the second two continuances were agreed to by Jones, but there is also no indication that Jones objected to the continuances. The State also argues that the continuances were granted due to the crowded docket and settings of older cases should not be weighed against the State under Barker.

¶ 18. “Delays caused by overcrowded dockets are not to be weighed heavily against the State.” State v. Magnusen, 646 So.2d 1275, 1282 (Miss.1994). The United States Supreme Court addressed this issue in Barker, stating that:

Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.

Barker, 407 U.S. at 581, 92 S.Ct. 2182. From the record before this Court, it does not appear that the delay was done for the purposes of hampering or delaying the defense. From this Court’s review of the record, much of the delay can be attributed to an overcrowded docket. Additionally, it appears that in the case that was moved ahead of Jones’s case, the judgment was rendered less than three months before the judgment in this case was handed down. That case was tried as a special setting and was not held so far in advance of this trial to raise the suspicion of impropriety in the delay. Additionally, Jones agreed to at least one of the granted continuances. This factor weighs slightly in Jones’s favor.

3. Jones’s Assertion of His Right

¶ 19. Jones argues that he asserted his right to a speedy trial by filing his motion to dismiss for failure to provide a fast and speedy trial and supporting memorandum on March 26, 2006. Jones concedes that he failed to mention in the motion the prejudice that resulted in his inability to find Williams, a crucial witness to his case. However, Jones contends that by filing this motion, he properly asserted his right to a speedy trial.

¶ 20. The State argues that Jones failed to properly assert his right to a speedy trial. The State contends that Jones did not demand a speedy trial; rather, he demanded a dismissal for failure to grant a speedy trial. Therefore, the State argues that this factor weighs in its favor.

¶ 21. The supreme court has previously held that “a defendant’s failure to assert his right to a speedy trial must be weighed against him.” Stark v. State, 911 So.2d 447, 452(¶ 26) (Miss.2005) (citing State v. Woodall, 801 So.2d 678, 684(¶ 21) (Miss.2001)). The Mississippi Supreme Court has also recognized in Woodall that “[t]he Supreme Court in Barker emphasized that ‘the defendant’s assertion of his speedy trial right ... is entitled to strong eviden-tiary weight in determining whether the defendant is being deprived of the right’ and that ‘failure to assert that right will make it difficult for a defendant to prove that he was denied a speedy trial.’ ” Woodall, 801 So.2d at 684(¶ 22) (quoting Barker, 407 U.S. at 581-32, 92 S.Ct. 2182). Further, the Mississippi Supreme Court “has previously held that ‘a demand for dismissal for violation of the right to speedy trial is not the equivalent of a demand for speedy trial. Such a motion seeks discharge not trial.’” Stark, 911 So.2d at 452(¶ 27) (quoting Perry v. State, 637 So.2d 871, 875 (Miss.1994)).

¶ 22. Jones filed a memorandum in support of the motion to dismiss the charges for failure to provide a fast and speedy trial on March 6, 2006. He filed a motion to dismiss for failure to provide a speedy trial on March 24, 2006. The circuit court overruled his motion to dismiss on July 25, 2006. In the present case, as was the case in Stark, the defendant filed a motion to dismiss for failure to grant a speedy trial, he did not move for or request a speedy trial itself. The supreme court in Stark found that this factor weighed in favor of the State. Stark, 911 So.2d at 452(¶ 27). Therefore, this factor weighs against Jones.

A Prejudice to Jones

¶ 23. Jones argues on appeal that his failure to receive a speedy trial prejudiced his defense because he was unable to locate his alibi witness, Williams. Jones contends that Williams moved to Florida in March 2006. Jones points out that after her move, he filed the motion to dismiss for failure to provide a speedy trial on March 26, 2006. Jones contends that he was unable to reach her after her move, which thereby severely prejudiced his defense at trial. Jones argues that this factor should weigh heavily against the State because he was unable to mount a complete defense at trial, and despite issuing a subpoena, he was unable to procure Williams for trial.

¶24. The State argues that Jones is unable to establish prejudice. The State contends that Williams’s earlier statement to police attributed the robbery to Jones and that he was unable to offer any exculpatory information that Williams might provide. The State also points out that Jones’s counsel did not attempt to contact Williams until five days prior to trial. Further, the State argues that Jones did not mention the loss of Williams as a witness in his motion to dismiss, but merely raised that issue ore tenus on the date of trial.

¶ 25. The Mississippi Supreme Court has acknowledged that “the Barker Court identified three interests protected by the right to a speedy trial to be considered when determining whether the defendant has been prejudiced by the delay in bringing him or her to trial.” Flora, 925 So.2d at 818. An appellate court must consider the following three interests: “(I) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532, 92 S.Ct. 2182. “Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id. An appellate court will consider “whether witnesses have died or become unavailable ... so that the accused is at a disadvantage which would not have attended him at a prompt trial.” Flora, 925 So.2d at 818(¶ 68) (citing Jaco v. State, 574 So.2d 625, 632 (Miss.1990)). While Jones contends that Williams would serve as an alibi witness at trial, very few attempts were made by Jones in order to procure a statement from Williams that would exonerate him. At trial, the State pointed out that the police obtained a statement from Williams which implicated Jones in the armed robbery. The State was also willing to stipulate as to Williams’s earlier statement to the police. Since Williams made an earlier statement to police which implicated Jones rather than exonerated him, it is hard to see how her unavailability for trial caused Jones actual prejudice. Therefore, we find this factor weighs against Jones.

¶26. In summary, the length of the delay required this Court to look at all four factors involving a speedy trial violation. The length of the delay and reasons for the delay weigh slightly in Jones’s favor, in that, much of the delay was due to an overcrowded docket. Weighed against the delay is the fact that Jones failed to request a speedy trial; therefore, he did not assert his right. Finally, Jones failed to establish that he was prejudiced because he was unable to locate Williams to testify at trial. Her earlier statement to police served to implicate Jones rather than exonerate him as Jones claimed. Upon examining the four factors, we find no error with the circuit court’s decision to deny Jones’s motion to dismiss for failure to grant a speedy trial. Accordingly, this issue is without merit.

¶ 27. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF ARMED ROBBERY AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.

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

      . Jackson v. State, 5 So.3d 1144 (Miss.Ct.App.2008). Jaclcson involved an armed robbery that occurred on March 14, 2005, after the armed robbery occurred in this case, and judgment was rendered on May 5, 2006.

      . The State's brief does not specify which older case was heard in a special setting on that date, but it is likely that the State is actually referring to the more recent Jackson case with which Jones takes issue.