Ollie Windmon v. Stephanie Ward Marshall ( 2003 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-CA-00528-SCT
OLLIE WINDMON AND ROBERT JOE
WINDMON
v.
STEPHANIE WARD MARSHALL AND
MISSISSIPPI FARM BUREAU INSURANCE
COMPANY
DATE OF JUDGMENT: 10/21/2003
TRIAL JUDGE: HON. LAMAR PICKARD
COURT FROM WHICH APPEALED: CLAIBORNE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: ANITA M. STAMPS
ATTORNEYS FOR APPELLEE: JUSTIN STRAUSS CLUCK
KENT E. SMITH
J. TUCKER MITCHELL
ANDY LOWRY
JAMES R. MOORE
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED -04/13/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE SMITH, C.J., CARLSON AND DICKINSON, JJ.
SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1. Ollie and Robert Windmon filed suit against Stephanie Ward Marshall and Mississippi
Farm Bureau Insurance Company (Farm Bureau) after Ollie Windmon was seriously injured
when her vehicle ran off of the highway and struck a tree. Ollie Windmon claimed her
injuries were due to Marshall’s negligent act of failing to properly yield. Also, the
Windmons claimed Farm Bureau was liable for committing alleged acts of bad faith in the
investigation of their claim. The trial court ordered a bifurcation of this matter. In the first
phase, the jury returned a verdict finding Windmon and Marshall equally at fault for the
accident. During the second phase of the trial, after all of the evidence was presented, the
trial court granted Farm Bureau’s motion for a directed verdict. Feeling aggrieved, the
Windmons subsequently filed this timely appeal.
FACTS
¶2. In June 2000, Stephanie Ward Marshall proceeded down her driveway in Hermanville,
Mississippi, and attempted to enter Valley Moon Road. At the same instant Ollie Windmon
was traveling toward Marshall on Valley Moon Road in her Ford Explorer. Prior to reaching
the Marshall driveway, Windmon’s Explorer veered off the road and struck a tree. After
witnessing the crash, Marshall immediately rushed to Windmon’s aid. At the scene Marshall
assisted Windmon in exiting her vehicle. Also, because of the seriousness of the injuries
Windmon sustained Marshall telephoned the hospital and requested an ambulance.
¶3. The facts are in dispute as to what actually caused the accident. Windmon claimed
Marshall was attempting to pull out on the road, and to avoid a collision she swerved off of
the road. Conversely, Marshall contended she stopped at the end of her driveway when
Windmon ran off of the road in front of her for no apparent reason.
¶4. Within days after the accident, Windmon filed a loss notice claim with her insurer,
Farm Bureau. Danita Lewis, Farm Bureau’s adjuster, promptly paid medical and collision
benefits, which she determined to be the only payable benefits allowable under policy.
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However, Windmon claimed she was also entitled to recover uninsured motorist benefits.
Initially, Farm Bureau refused uninsured motorist benefits because the accident appeared to
involve only one vehicle. Farm Bureau investigated the matter and was unable to discover
Marshall’s identity and the role she may have played in the accident. Even Ollie Windmon
herself failed to inform Farm Bureau of Marshall’s involvement.
¶5. Several months after the accident, the Windmons’ counsel informed Farm Bureau of
Marshall’s identity and alleged Marshall’s negligence was a cause in fact of the accident.
Notwithstanding Windmon’s allegations, Farm Bureau adopted Marshall’s version of events,
which supported that Marshall was not the proximate cause of Windmon’s injuries. To avoid
a trial on the issue of uninsured motorist benefits, Farm Bureau presented an offer of
settlement to the Windmons.
¶6. Subsequently, Ollie and Robert Windmon filed suit against both Marshall and Farm
Bureau in the Circuit Court of Claiborne County on December 10, 2001. The Windmons
alleged that Marshall, as an under or uninsured driver, through her negligent acts was the
proximate cause of the automobile accident. Additionally, the complaint alleged that Farm
Bureau failed to use good faith in handling the Windmons claim.
¶7. In August 2002, the Windmons filed an application for entry of default judgment and
supporting affidavit. In December 2002, the Windmons filed an additional application for
entry of default and supporting affidavit. Entry of default was subsequently entered and
docketed by the circuit court clerk.
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¶8. In April 2003, Marshall filed a motion to set aside the clerk’s entry of default and for
leave of court to file responsive pleadings. On May 6, 2003, a hearing was held before the
trial court wherein the Windmons attempted to have a default judgment entered against
Marshall. However, the trial court set aside the entry of default and, at the Windmons’
request, continued a trial on the merits until September 2003. Additionally, the trial court
determined it was proper to bifurcate the trial on issues of negligence and bad faith.
¶9. On September 3, 2003, opening statements were given regarding Marshall’s
negligence, thus commencing the first phase of the bifurcated trial. In the first phase of the
trial the jury returned a unanimous verdict finding each Ollie Windmon and Stephanie
Marshall fifty percent at fault for the accident.
¶10. The second phase of the trial dealt with the Windmons allegations of Farm Bureau’s
bad faith in its investigation of the uninsured motorist claim. During this phase Windmon
called several witnesses to prove bad faith on behalf of Farm Bureau. After Windmon
presented her case and without presenting any witnesses of its own, Farm Bureau motioned
the trial court for a directed verdict. The trial court granted Farm Bureau a directed verdict
and dismissed the second phase of the trial.
ANALYSIS
I. ENTRY OF DEFAULT
¶11. “The decision to grant or set aside a default judgment is addressed to the sound
discretion of the trial court.” Tatum v. Barrentine, 797 So. 2d 223, 227 (Miss. 2001) (citing
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Will. v. Kilgore, 618 So. 2d 51, 55 (Miss. 1992)). The trial court’s discretion must be
exercised in accordance with the M.R.C.P. 55(c) and 60(b). Tatum, 797 So. 2d at 227(citing
Guar. Nat’l Ins. Co. v. Pittman, 501 So. 2d 377, 388 (Miss. 1987)). Further, “absent abuse
of discretion, we will not disturb the rulings of the trial court on a default judgment.” Id.
¶12. The Windmons contend the trial court erred and abused its discretion when it set aside
the clerk’s entry of default against Marshall without a hearing on the grounds for setting it
aside. The Windmons call this Court’s attention to the following subsection of Rule 55 of
the Mississippi Rules of Civil Procedure:
(b) Judgment. In all cases the party entitled to a judgment by default shall
apply to the court therefor. If the party against whom judgment by default is
sought has appeared in the action, he (or if appearing by representative, his
representative) shall be served with written notice of the application for
judgment at least three days prior to the hearing of such application; however,
judgment by default may be entered by the court on the day the case is set for
trial without such three days’ notice. If in order to enable the court to enter
judgment or to carry it into effect it is necessary to take an account or to
determine the amount of damages or to establish the truth of any averment by
evidence or to make an investigation of any other matter, the court may
conduct such hearing with or without a jury, in the court’s discretion, or order
such references as it deems necessary and proper.
(emphasis added).
¶13. However, this rule does not support the Windmons’ argument. Moreover, the
Windmons’ argument effectively fails to distinguish between an entry of default and a default
judgment. In the matter at hand, it is undisputed that the Windmons obtained an entry of
default against Marshall prior to the hearing on May 6, 2003; however, the Windmons had
not obtained a final judgment of default at that juncture. The trial court determined that its
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discretion would best be served by setting aside the entry of default. M.R.C.P. 55(b) clearly
enables that discretion and states “judgment by default may be entered by the court on the
day the case is set for trial. . . .”
¶14. Notwithstanding the Windmons’ asseverations, we find M.R.C.P. 55(c) sets forth the
appropriate rule for setting aside an entry of default.
(c) Setting Aside Default. For good cause shown, the court may set aside an
entry of default and, if a judgment by default has been entered , may likewise
set it aside in accordance with Rule 60(b).
M.R.C.P. 55(c) draws a clear distinction between setting aside an entry of default and setting
aside a judgment of default. This Court has previously held “there is a more liberal standard
for setting aside a default than the standard for setting aside a default judgment.” King v.
Sigrest, 641 So. 2d 1158, 1162 (Miss. 1994). Therefore, in accordance with M.R.C.P. 55(c)
the trial court was permitted to set aside the entry of default for good cause shown. See
Tatum, 797 So. 2d at 226.
¶15. “‘[G]ood cause shown . . . requires the moving party to provide an explanation for the
default or give reasons why vacation of the default entry would serve the interests of justice.”
Allstate Ins. Co. v. Green, 794 So. 2d 170, 179 (Miss. 2001) (Waller, J., concurring) (citing
10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2696 at 141-42; 143-49 (3d ed. 1998) (footnotes omitted)).
¶16. Although the trial court does not expressly enumerate good cause for setting aside the
entry of default, the record reflects that good cause existed. On the scheduled trial date, May
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6, 2003, Marshall and Farm Bureau appeared before the trial court and announced they were
ready to proceed with trial. At the hearing, the Windmons urged the trial court to enter a
judgment of default against Marshall on the issue of liability. The trial court noted that “the
entry of default is no admission of liability. As a matter of fact, until a judgment is entered
in court, there has not been an adjudication.” Further, the trial stated “the very thing that’s
going to have to be established is liability on the part of Ms. Marshall before Farm Bureau
will be responsible.”
¶17. Therefore, even if the trial court had granted the default judgment, for the Windmons
to proceed on their claim against Farm Bureau, the issue of Marshall’s liability would still
have had to be tried. It is apparent that in order to preserve the sanctity of justice, the trial
court judiciously allowed Marshall the opportunity to defend herself in court. The
Windmons were not prejudiced by undue delay, as Marshall was present and ready to
proceed at the initial hearing on May 6, 2003. Therefore, we find the trial court’s decision
setting aside the entry of default was supported by good cause because it erred on the side
of caution and served the interests of justice.
¶18. The Windmons assert that the trial court did not have a legal basis for setting aside the
entry of default. For support the Windmons cite this Court’s prior precedent in an attempt
to formulate an analogy with the present set of facts. However, in each of the cases cited by
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the Windmons, a default judgment had been already entered, not a mere entry of default as
in the case at hand.1 Thus, these cases are factually distinguished from the case at bar.
¶19. This Court finds the trial court did not abuse its discretion in setting aside the entry
of default. Thus, this issue is without merit.
II. DIRECTED VERDICT
¶20. This Court has repeatedly stated the standard of review for determining whether a
motion for a directed verdict should be granted. The standard of review for both a
peremptory instruction and directed verdict is as follows:
[T]his Court conducts a de novo review of motions for directed verdict . . . .
If the Court finds that the evidence favorable to the non-moving party and the
reasonable inferences drawn therefrom present a question for the jury, the
motion should not be granted. Additionally, this Court has held that a trial
court should submit an issue to the jury only if the evidence creates a question
of fact concerning which reasonable jurors could disagree.
Entergy Mississippi, Inc. v. Bolden, 854 So. 2d 1051, 1055 (Miss. 2003) (internal citations
omitted). The Windmons argue that the trial court erred by not adhering to the correct legal
standard of review in this case because the evidence presented did in fact create a question
upon which reasonable jurors could disagree.
1
See Pointer v. Huffman, 509 So. 2d 870 (Miss. 1987); Vining v. Mississippi State
Bar Ass’n., 508 So. 2d 1047 (Miss. 1987); Bryant v. Walters, 493 So. 2d 933 (Miss. 1986);
Donaldson v. Pontotoc County Welfare Dept., 445 So. 2d 1377 (Miss. 1984); Guar. Nat’l,
501 So. 2d at 377.
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A. Failure to Investigate
¶21. The Windmons argue they established bad faith due to Farm Bureau’s failure to
investigate the accident. Thus, the Windmons maintain the trial court erred in granting a
directed verdict and not submitting this matter to the jury.
¶22. In Murphree v. Federal Ins. Co., 707 So. 2d 523, 529 (Miss. 1997), this Court stated
that “[i]f there is a finding that there was a reasonable arguable basis to deny the claim then
the [appellant] is not entitled to have the jury consider any bad faith award against the
insurance company.” Further, the plaintiff bears a heavy burden in demonstrating to the trial
court that there was no reasonably arguable basis for denying the claim. Blue Cross & Blue
Shield v. Campbell, 466 So. 2d 833, 844 (Miss. 1984).
¶23. Danita Lewis testified that some accidents require more investigation than others.
Lewis revealed that an accident involving two or more vehicles is a disputed accident usually
requiring a scene investigation. However, Lewis stated that this was an apparent one-car
accident and even though the police report mentioned someone may have pulled out in front
of Ollie Windmon it failed to identify another driver. Also, the report’s diagram supported
the notion that only a one-car accident occurred. Farm Bureau apparently was unaware that
Marshall was the driver of the other vehicle until seven months post accident when the
Windmons revealed her identity. One month after the accident Lewis took a statement from
Ollie Windmon. During that statement Lewis inquired if Windmon knew the name of the
driver of the other vehicle, and Windmon responded in the negative. Also, Lewis stated that
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in her attempts to locate the identity of the supposed second driver, she knocked on the door
of the mobile home across the street from where the accident occurred to no avail. Further,
Lewis explained that additional door-to-door canvassing would not have been a reasonable
investigatory tactic due to the rural nature of and limited number of houses in the area.
¶24. “[I]f the insurance company cannot give its insured a valid reason for denying the
claim, it has a final duty to promptly honor it.” Bankers Life & Cas. Co. v. Crenshaw, 483
So. 2d at 254, 276 (Miss. 1985). We find Farm Bureau’s conduct was not bad faith because
there was a valid and arguable reason to deny the uninsured motorist claim. An arguable
reason has been defined by this Court as “nothing more than an expression indicating the act
or acts of the alleged tortfeasor do not rise to [the] heightened level of an independent tort.”
Universal Life Ins. Co. v. Veasley, 610 So. 2d 290, 293 (Miss. 1992)(quoting Pioneer Life
Ins. Co. of Illinois v. Moss, 513 So. 2d So. 2d 927, 930 (Miss. 1987)). Farm Bureau’s
actions in the case at bar certainly do not rise to the level of an independent tort. Thus, Farm
Bureau’s reason for denying the Windmons’ uninsured motorist claim was arguable at a
minimum.
¶25. The facts demonstrate Farm Bureau initially denied the uninsured motorist claim
because after reasonable efforts Marshall’s identity had not been discovered. This is an
arguable reason. Further, this Court has held:
[T]he plaintiff’s burden in proving a claim for bad faith refusal goes beyond
proving mere negligence in performing the investigation. The level of
negligence in conducting the investigation must be such that a proper
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investigation by the insurer would easily adduce evidence showing its defenses
to be without merit.
Liberty Mut. Ins. Co. v. McKneely, 862 So. 2d 530, 534 (Miss. 2003)(citing Murphree, 707
So. 2d at 531). Lewis may not have performed her adjusting duties in the ideal fashion.
However, the record demonstrates at most mere negligence on Lewis’ part. Thus, the
Windmons did not meet their burden of proving their claim.
¶26. In addition, Farm Bureau correctly points out that even had they been able to quickly
identify Marshall after the accident, they would have adopted Marshall’s account of disputed
liability, which still justifies denial of the uninsured motorist claim. This contention was
strengthened when the jury returned a verdict apportioning fault equally between Marshall
and Windmon. This is also an arguable reason for denying the claim. Therefore, this Court
finds that a more aggressive investigation by Farm Bureau would not have yielded evidence
showing its defenses to be without merit.
B. Delay
¶27. Next, the Windmons argue that Farm Bureau was guilty of bad faith delay. However,
we are unclear as to the exact delay of which the Windmons are complaining. The
Windmons apparently attempt a continuing garbled argument regarding Farm Bureau’s
negligent investigation. However, it is abundantly clear the Windmons are in disagreement
with the trial court’s grant of a directed verdict.
¶28. The Windmons assert this matter should have been submitted to the jury for a
determination of punitive damages. They allege that in Caldwell v. Alfa Ins. Co., 686 So.
112d 1092, 1097 (Miss. 1996), this Court allowed a punitive damage instruction to the jury as
the result of a delay in payment of a claim. However, after reviewing Caldwell, this Court
disagrees. In Caldwell, this Court affirmed the trial court’s grant of summary judgment in
favor of Alfa Insurance Company on the issue of bad faith. Caldwell held that Alfa
Insurance Company’s explanation of delaying payment to Caldwell was reasonable, not
egregious. Id. at 1093. Further, this Court found that Alfa ’s conduct was at most simple
negligence, and punitive damages were not proper. Id. Thus, Caldwell actually favors
dismissal of bad faith claims and punitive damages when just simple negligence is at hand.
¶29. The Windmons also attempt to draw a comparison between Travelers Indem. Co. v.
Wetherbee, 368 So. 2d 829 (Miss. 1979), and the case at bar. “In Travelers, this Court
affirmed a punitive damage instruction where the insurer withheld payment for a period of
eight months, despite being warned that the insured was suffering economically.” Caldwell,
686 So. 2d at 1098. Further, in Travelers, Travelers Indemnity withheld payment from the
Wetherbee’s attempting to force settlement at a lower price. This Court concluded that
Traveler’s intentional withholding of coverage was a gross breach, equivalent to an
independent tort. Travelers, 368 So. 2d at 835. Hence Travelers was not an instance of
mere delay. Rather Travelers was an instance of an egregious attempt by an insurance
company to bully an insured into a cheap settlement. Nevertheless, the factors in Travelers
are not present in the case at bar. Moreover, Farm Bureau’s conduct does not rise to the level
of an independent tort.
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¶30. There is no evidence in the record suggesting that Farm Bureau delayed any of the
Windmons’ claims in bad faith. Farm Bureau’s adjuster, Danita Lewis, was at most simply
negligent in her handling of certain aspects of the Windmons’ claims. The Windmons call
this Court’s attention to Lewis being reprimanded in a memorandum by her supervisor for
poor claims handling. However, Lewis’ supervisor testified that the memorandum regarding
Lewis’ efforts to garner the Windmons additional money on their collision claim. In
response, Farm Bureau insists the Windmons are presenting evidence which demonstrates
Lewis actually acted in good faith by “going the extra mile” during the claim process.
¶31. This Court has failed to ascertain a single instance of bad faith on behalf of Farm
Bureau in this case. The Windmons did not prove by a preponderance of the evidence that
Farm Bureau acted with malice or gross or reckless disregard for the rights of others. See
Caldwell, 686 So. 2d at 1095. We find Farm Bureau’s conduct was at most simple
negligence. Therefore, Farm Bureau’s conduct does not rise to a level requiring punitive
damages to be considered. Id. at 1093.
C. Consequential/Extra-Contractual Damages
¶32. Finally, the Windmons assert that even if they cannot show bad faith on behalf of
Farm Bureau for an award of punitive damages, they may still be entitled to consequential
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or extra-contractual damages2 for lack of a reasonably arguable basis. However, as we
previously noted, Farm Bureau had a reasonably arguable basis for denying the claim.
¶33. In support of their assertion, the Windmons call attention this Court’s opinion in Blue
Cross & Blue Shield of Mississippi, Inc. v. Maas, 516 So. 2d 495 (Miss. 1987). In Maas,
Blue Cross insisted they committed an error due to a mere oversight, and punitive damages
were not proper. This Court disagreed and upheld the award of punitive damages after
weighing facts such as:
(6) Maas never received an answer from Blue Cross, following his claim’s
denial, though assured of an investigation and response, (7) Blue Cross denied
a doctor's claim on Maas, related to the surgery, approximately three weeks
after he had filed suit; significantly, the denial occurred after Blue Cross’
investigation had determined that the insurer wrongfully terminated coverage,
and (8) Blue Cross failed to remit payment until March 11, 1985,
approximately six weeks after the investigation had found that the insurer
improperly denied the original claim.
Id. at 497-98.
¶34. The facts in this case bear no relation to the conduct of the insurer in Maas. Farm
Bureau remained in contact with the Windmons and never mistakenly denied their uninsured
motorist claim. Once Marshall’s identity was revealed, Farm Bureau adopted her account
of the accident. Moreover, because Farm Bureau then contended the accident was due to
Ollie Windmon’s negligence, denial of the claim was proper. Thus, Maas is factually
distinguished from the case at hand.
2
Extra-contractual damages include reasonable attorney fees, court costs, and other
economic losses.
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¶35. Further, the Windmons apparently rely on Justice Roberston’s concurring opinion in
Maas. Id. at 498. In his concurrence, Justice Robertson opines that the parties and trial court
should have litigated the matter for ordinary tort damages. Nonetheless, Justice Robertson’s
rationale would not apply in the case at bar because Farm Bureau’s conduct does not rise to
the level of an independent tort. Therefore, a trial on ordinary damages would be improper
on this occasion.
¶36. In conclusion, the trial court allowed the Windmons the opportunity to present their
case to the jury during this second phase of the bifurcated trial. At the close of the
Windmons’ case in chief Farm Bureau did not call a single witness, but instead motioned the
trial for a directed verdict in their favor.3 The trial court subsequently granted Farm Bureau’s
motion and stated “the court is just convinced beyond any doubt that there simply cannot be
any fair-minded juror who could come to any conclusion but the fact that there has been no
bad faith exercised in this particular case.”
¶37. We find the trial court was well versed on the applicable standard of review.
Moreover, for the reasons stated above, the trial court was correct in finding that no
3
Windmon avers in her brief that Farm Bureau’s motion for a directed verdict was
actually a motion for peremptory instruction. We admit there is little or no difference
between a peremptory instruction and a directed verdict in this case. Moreover, both are
governed by the same standard of review, see supra. However, Farm Bureau presented the
motion at trial as a motion for a directed verdict, and the trial court granted what it deemed
a directed verdict. Thus, this Court will address whether or not a directed verdict was proper
in this instance.
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reasonable juror could have found Farm Bureau in bad faith. Therefore, the directed verdict
was proper. Thus, this issue is without merit.
III. PLAINTIFFS’ EXPERTS
¶38. “The admission of expert testimony is addressed to the sound discretion of the trial
judge. Unless we conclude that the discretion was arbitrary and clearly erroneous, amounting
to an abuse of discretion, that decision will stand.” Roberts v. Grafe Auto Co., Inc., 701 So.
2d 1093, 1098 (Miss. 1997). “For a case to be reversed on the erroneous admission or
exclusion of evidence, the error must result in prejudice and harm or adversely affect a
substantial right of a party.” Busick v. St. John, 856 So. 2d 304, 319 (Miss. 2003)(citing
Terrain Enter., Inc. v. Mockbee, 654 So. 2d 1122, 1131 (Miss. 1995); Hansen v. State, 592
So. 2d 114 (Miss. 1991)).
¶39. The Windmons insist they were prejudiced by the trial court’s dismissal of their
witnesses regarding insurance and hedonic damages. At the May 6, 2003 hearing the
following pertinent communications took place:
COUNSEL FOR WINDMONS: I think we would be prejudiced by the fact
that we haven’t been able to do full discovery as it pertains to Ms. Marshall.
TRIAL COURT: So you want me to continue the Ms. Marshall portion of the
case and try the Farm Bureau portion of the case?
COUNSEL FOR WINDMONS: Well, we could do that if the Court - - but
seems like that might be out of order.
....
TRIAL COURT: [I]t doesn’t make any difference whether you continue Ms.
Marshall’s portion of the case or not as to Farm Bureau. So you’re ready to go
with Farm Bureau?
COUNSEL FOR WINDMONS: We’re ready to go, Your Honor, based on the
Court’s ruling.
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TRIAL COURT: Well, I mean, I don’t want to prejudice you.
COUNSEL FOR WINDMONS: But if you make us try the case in this posture,
Your Honor, we’ll be prejudiced, but we’re prepared to do whatever the Court
wants us to do.
TRIAL COURT: What do you suggest? How would you not be prejudiced?
COUNSEL FOR WINDMONS: If we have a continuance while we develop
the liability aspects of the case, Your Honor. But I think the Court has made
its ruling and I’m ready to proceed.
....
TRIAL COURT: . . . [I]t seems like we’re continuing the case based on
something that just don’t make any difference, and I do not see any prejudice,
but if you do, I’m inclined to grant your continuance just because you feel like
you’re prejudiced. I don’t want to do that to you.
COUNSEL FOR WINDMONS: In light of the - -
TRIAL COURT: I want to be fair to everybody in this courtroom, I want to be
fair to you, I want to be fair to [Farm Bureau’s counsel], I want to be fair to
Farm Bureau, I want to be fair to everybody, and I don’t see how anybody is
prejudiced, but if you think you are, I’m inclined to grant your request.
¶40. At the May 6 hearing the Windmons were anticipating the trial court would grant a
default judgment in their favor against Marshall. However, they were ready to proceed on
the bad faith claim against Farm Bureau. When the trial court attempted to proceed to trial
on the issue of Marshall’s liability, the Windmons asserted they would be prejudiced in that
aspect. Hence, the trial court judiciously granted a continuance solely on the issue of liability
in an attempt to appease the Windmons’ concerns.
¶41. On July 3, 2003, before the trial was continued, the Windmons designated Stan Smith,
Ph.D., as an economist expert, and Donald Dinsmore, J.D., as an insurance expert. Farm
Bureau filed a motion in limine to exclude the testimony of these experts. Subsequently, the
trial court disallowed these witnesses based on the premise that the continuance was granted
to allow the Windmons the opportunity to further prepare a case on the liability aspect only,
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not to strengthen their case against Farm Bureau. Because the Windmons were ready to
proceed against Farm Bureau before the continuance, allowing them additional time to
prepare would have prejudiced Farm Bureau. The trial court stated:
This Court, relying on plaintiffs’ adamant statements on May 6, that they were
ready and willing to try the damages issues, ruled not to allow testimony from
these two witnesses. Since the trial was continued due to plaintiffs being
unprepared to try the issue of liability on May 6, this Court felt that to have
allowed them additional time to prepare for the phases of the case which they
represented were ready to be tried on May 6, would have been a miscarriage
of justice. Accordingly, this Court ruled not to allow the testimony of these
two witnesses.
¶42. The Windmons maintain that Farm Bureau was afforded more than ample time to
prepare, thus Farm Bureau would have suffered no prejudice by admittance of the testimony
of their experts. In support of this contention the Windmons cite this Court’s precedent.4
Nevertheless, Farm Bureau correctly notes the entirety of the Windmons’ supporting
authority, contrary to the case at bar, are instances where the trial court chose to allow expert
testimony.
¶43. It is clear to us the trial court did not allow a continuance for the purpose of bestowing
an unfair advantage upon the Windmons. Further, the trial court was very insistent in its
quest to be fair. This Court will accept no less; “[o]ur trial judges also have a right to expect
compliance with their orders, and when parties and/or attorneys fail to adhere to the
4
Mississippi Valley Gas Co. v. Estate of Walker, 725 So. 2d 139 (Miss. 1998);
Eastover Bank for Sav. v. Hall, 587 So. 2d 266 (Miss. 1991); Motorola Commc’ns & Elec.
v. Wilkerson, 555 So. 2d 713 (Miss. 1989).
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provisions of these orders, they should be prepared to do so at their own peril.” Bowie v.
Montfort Jones Mem’l Hosp., 861 So. 2d 1037, 1042 (Miss. 2003).
¶44. Prejudice certainly would have occurred had the trial court allowed the experts at issue
to testify. It is apparent the trial court barred the experts’ testimony in the interests of justice.
Therefore, this Court finds the trial court did not abuse its discretion. Thus, this issue is
without merit.
IV. J.N.O.V.
¶45. A judgment notwithstanding the verdict is subject the same standard of review as a
peremptory instruction or directed verdict, see supra. That standard is “[i]f the facts so
considered point so overwhelmingly in favor of the appellant that reasonable men could not
have arrived at a contrary verdict, we are required to reverse and render.” Illinois Cent. R.R.
Co. v. Hawkins, 830 So. 2d 1162, 1169 (Miss. 2002).
¶46. The Windmons simply fail to set forth a new argument or any precedent for this issue.
Instead, the Windmons aver that they are “re-adopting” the foregoing arguments submitted
on appeal. This Court has already determined the trial court’s grant of a directed verdict was
proper because no reasonable juror could have reached a contrary verdict, see supra.
Because the same standard governs a J.N.O.V., we find the trial court properly denied the
Windmons’ motion for J.N.O.V. Thus, this issue is without merit.
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CONCLUSION
¶47. For these reasons, we affirm the judgment of the trial court.
¶48. AFFIRMED.
WALLER AND COBB, P.JJ., CARLSON AND DICKINSON, JJ., CONCUR.
EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN
OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.
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