OF JUDGMENT: 08/21/2017
COUNTY CIRCUIT COURT HON. LEE SORRELS COLEMAN TRIAL JUDGE
ATTORNEYS FOR APPELLANT: CLIFFORD KAVANAUGH BAILEY III GREGG
ATTORNEYS FOR APPELLEE: LANCE L. STEVENS RODERICK D. WARD III
Anthony Lee Tutor filed a complaint against Liberty Insurance
Corporation (Liberty); United Parcel Service Company and
United Parcel Service Inc. (collectively UPS); UPS business
manager April Dallas; and UPS supervisor Bonnie King seeking
extra-contractual compensatory damages and punitive damages
for the alleged bad-faith handling of Tutor's prior
workers' compensation claim.
After a trial on the matter, the jury awarded Tutor
extra-contractual damages in the amount of $100, 000. The
jury also returned a verdict finding in favor of Tutor on his
claim for punitive damages, but the jury did not assess a
monetary award against Liberty for punitive damages. After
the trial, UPS and Tutor reached a confidential settlement of
Tutor's claim against UPS. UPS is not a party in this
Liberty now appeals, arguing that the evidence presented at
trial was insufficient to support the jury's verdict that
Liberty is liable to Tutor for extra-contractual damages and
that the evidence was insufficient to support the punitive
damages award. Liberty also argues that the trial court erred
in admitting Lydia Quarles's expert testimony.
We find that in applying precedent to this case, Tutor failed
to meet his burden to prove extra-contractual damages because
the record reflects that Liberty possessed an arguable
good-faith basis for its delay in paying Tutor's
claim. Accordingly, the evidence presented at
trial was insufficient to support the jury's verdict. We
therefore reverse the jury's verdict and render a verdict
in favor of Liberty.
Tutor worked as a package driver for UPS. At the time,
Liberty was the workers' compensation carrier for UPS. On
September 1, 2011, Tutor injured his back while walking
upstairs to deliver a package.
After the injury occurred, Tutor immediately called his UPS
business manager, April Dallas, and informed her that he
injured his back and would not be able to finish his route.
Dallas advised Tutor that she would bring another UPS
supervisor Gary Bishop to meet Tutor and help him with the
remainder of his route. Dallas also advised Tutor to call her
when he returned to the UPS facility.
When Bishop and Tutor returned to the Columbus facility that
evening, they called Dallas to discuss what happened. During
the phone call, Bishop and Tutor informed Dallas about the
circumstances regarding Tutor's injury-that Tutor was
carrying a box up some stairs to make a delivery when a dog
startled him and he twisted and hurt his back. Dallas advised
Tutor to seek medical treatment and informed him that due to
the late hour, he would need to go to the emergency room
because medical clinics would be closed. Tutor told Dallas
that he would prefer to seek treatment from his personal
physician the next day. Tutor also told Dallas that prior to
this injury, he had been receiving treatment from a
chiropractor. Dallas testified that based on this second
phone conversation with Tutor, she determined that Tutor was
suffering from a previous injury and that the injury he
suffered after the dog startled him was not work related. As
a result, Dallas did not report Tutor's injury to
The record contains extensive medical evidence from various
physicians regarding Tutor's injury as well as evidence
of the medical treatment Tutor received for back pain he
suffered prior to this injury. On September 2, 2011, the day
after his injury, Tutor sought treatment from his
family-medicine doctor, Dr. Brad Crosswhite. At his
appointment, Tutor informed Dr. Crosswhite that he sustained
back pain "when he was walking up a flight of stairs . .
. while he was carrying a box and heard a dog bark and he
twisted his back[, ] immediately feeling pain in his
back." Dr. Crosswhite also noted that Tutor "is
seeing a chiropractor weekly for [a] problem in the same spot
in this thoracic vertebrae." Dr. Crosswhite referred
Tutor to receive an MRI of his thoracic spine and recommended
that Tutor stay off of work from September 15-30, 2011.
Despite Tutor's complaint of back pain, the MRI results
revealed no objective injury. Dr. Crosswhite testified that
the MRI results were normal and that "the only thing out
of the normal" on the MRI results were degenerative
changes to Tutor's thoracic spine. Dr. Crosswhite
explained that "degenerative" means "wear or
tear or arthritic changes." Dr. Crosswhite clarified
that "[t]here is no objective finding anatomically on
this MRI that . . . would explain the cause of [Tutor's]
pain or the degree of his pain." Dr. Crosswhite
cautioned, however, that "MRI findings are not always
consistent with a patient's physical
Tutor testified that he attempted to return to work on
September 6, 2011 and September 12, 2011, shortly after his
injury, but he was unable to work due to his back pain. Tutor
testified that on approximately September 15, he received a
call from Dallas. According to Tutor, Dallas informed him
that he was not going to be able to continue working partial
days. Instead, Tutor would either have to come back to work
full time or file for short-term disability. Tutor testified
that he told Dallas that "you and I both know this
should be [workers' compensation]." Tutor said that
Dallas responded, "No, this is previous injury,"
and she again told him that he could return to work full
time, call the union, or file for short-term disability.
Tutor testified that he then called Rhonda Rutherford at the
union hall in Jackson, Mississippi, and informed Rutherford
about his injury. According to Tutor, Rutherford opined that
he should be entitled to workers' compensation benefits,
but she told Tutor that she would instead try to get him
short-term disability. Rutherford then filled out a form on
Tutor's behalf and applied for short-term disability. The
form bears a signature purporting to be Tutor's
signature, but the evidence reflects that Rutherford signed
the form on Tutor's behalf.
The short-term-disability application form also contains Dr.
Crosswhite's signature. The record reflects that
Rutherford completed, signed, and dated the
"Member's Statement" section of the
short-term-disability application form for Tutor prior to
sending the application to Dr. Crosswhite. Dr. Crosswhite
indicated on the form that Tutor's disability was not
work related. Tutor's short-term disability
application was approved, and for the next six months, from
September 22, 2011, until March 21, 2012, he received
short-term disability benefits.
On September 15, 2011, Tutor saw Aaron Ford, a physical
therapist. Ford recommended physical therapy for Tutor
one-to-two times a week for four weeks in order to treat
Tutor's back pain. Tutor's physical therapy records
reflect that Tutor experienced decreased pain in his back in
response to his therapy sessions. The records from
Tutor's September 29, 2011 appointment state that
"physical therapy services are discontinued at this time
secondary to: goals have been met." Ford discharged
Tutor from physical therapy on September 29, 2011. Ford's
discharge summary for Tutor reflects that Tutor "has met
all goals for therapy. [Tutor] states that he has no pain and
if he does, he knows what to do to relieve this pain."
Tutor returned to see Dr. Crosswhite on October 13, 2011,
complaining of back pain. Dr. Crosswhite's records from
this appointment reflect that Tutor had returned to work and
that his back pain "started up again." Dr.
Crosswhite referred Tutor for more physical therapy.
In October 2011, Tutor again received physical therapy, this
time from Mark Bresee. Bresee's notes reflect that during
his treatment of Tutor, Tutor responded well to physical
therapy, though Tutor "consistently" reported pain
associated with driving.
On November 2, 2011, Tutor returned to see Dr. Crosswhite. At
this appointment, Tutor complained that although he had been
going to physical therapy for three weeks, he had not
experienced any relief from his back pain. According to his
notes, Dr. Crosswhite informed Tutor that he now has limited
treatment options. Dr. Crosswhite stated that he had "a
very long discussion" with Tutor about his options. Dr.
Crosswhite also spoke "at length with a radiologist who
has reviewed his films and has reassured that there is no
evidence of soft tissue mass or abnormal vertebrae or
discs." The radiologist also confirmed to Dr. Crosswhite
that Tutor's MRI was normal. Dr. Crosswhite offered to
refer Tutor to a pain clinic.
On November 10, 2011, Tutor received treatment from nurse
practitioner Dawn Frans at North Mississippi Neurosurgical
Services. According to Frans's records, Tutor complained
of "mid-back pain" that he had suffered from
"in a nagging form for over [ten] years."
Frans's records further reflect that Tutor twisted his
back while delivering a package, and a knot appeared in his
back. Frans's record contains a section asking "Is
this [workers'] comp?" and Frans typed
"No" in response. Frans recommended that Tutor
receive a steroid injection. Despite the injection, Tutor did
not experience any relief from his back pain. Frans then
referred Tutor to Dr. Laura Gray.
In the interim, Tutor returned to Dr. Crosswhite on January
16, 2012, complaining of back pain that was too severe for
Tutor to report to work.
Tutor first saw Dr. Laura Gray, a physiatrist specializing in
physical medicine and rehabilitation, on February 1, 2012.
According to Dr. Gray's notes, Tutor complained of back
pain "to the right of the thoracic spine centered in the
muscles." At that appointment, Dr. Gray noticed "a
raised area to the right of the thoracic T-4 through T-7 area
which appear[ed] to involve muscle." Dr. Gray referred
Tutor to a pain-management physician for steroid injections
and to set up a follow-up visit.
At Tutor's follow-up visit with Dr. Gray on February 21,
2012, Dr. Gray noted that Tutor stated that he received no
benefit from the injection, and he claimed that the
injections made his back pain worse. Dr. Gray discontinued
Tutor's follow up with the pain-management physician, and
she referred Tutor to a physical therapist. Dr. Gray then
referred Tutor to a physical therapist.
Tutor returned for another visit with Dr. Gray on March 6,
2012. Dr. Gray's records from that visit reflect that
Tutor's physical therapist determined that Tutor's
strain on his thoracic spine "had almost completely
resolved." Dr. Gray noted that Tutor "became very
upset when he was informed that we felt he needed to be
released to work." Dr. Gray's records from
Tutor's March 6, 2012 visit also reflect that she
released Tutor for work and recommended that Tutor return to
work on limited duty for two weeks and then resume full duty.
According to Dr. Gray's records, Tutor then stormed out
of her office saying "he had wanted to be off of
work." Dr. Gray advised Tutor that since he had a
strain, she could not keep him out of work.
Tutor's medical records from his appointment with Dr.
Laura Gray on March 22, 2012, reflect that Tutor "became
very upset" and "angry" when Dr. Gray informed
him that based on his progress and her findings, she would
not be able to keep him off of work. Dr. Gray advised that
"working through this type of injury is certainly
appropriate." She further opined that Tutor
"appears focused on long[-]term disability and
retirement. He appears to have a lack of desire to return to
work." At trial, Tutor denied telling Dr. Gray that he
wanted to be retired. Tutor also testified that Dr.
Gray's opinion that Tutor was focused on being long-term
disabled was not correct.
Tutor testified that his short-term disability benefits would
end on March 23, 2012, so that led him to contact an attorney
to help him obtain workers' compensation benefits. On
March 15, 2012, Tutor retained an attorney to represent him
in connection with his September 1, 2011 injury. On May 9,
2012, Tutor's attorney filed a petition to controvert
with the Mississippi Workers' Compensation Commission
On May 14, 2012, Liberty received notice that Tutor had filed
a petition to controvert. The parties do not dispute that
prior to receiving notice of Tutor's petition to
controvert, Liberty had no knowledge of Tutor's injury
and that the petition to controvert was Liberty's first
notice of Tutor's claim. Our review of the record also
confirms this evidence. Liberty assigned Tutor's case to
case-manager Bonnie King.
Liberty received the petition to controvert on May 15, 2012.
That same day, King retained counsel to represent Liberty in
its defense of Tutor's claim. The petition to controvert
set forth that Tutor "received a compensable injury
while in the employ of [UPS]" and claimed that Tutor was
chased by a dog. The petition to controvert listed the
following information as "to be determined":
Tutor's average weekly wage; the period of his alleged
temporary disability; the nature, degree and extent of any
alleged permanent disability; the date of his maximum medical
improvement; the date he will be able to resume employment;
and his alleged loss of wage earning capacity, if any. The
petition did not contain any of Tutor's medical records;
however, the petition did list the names and addresses of the
physicians and hospitals where Tutor received medical
treatment relating to his injury. The petition also did not
identify any witnesses to Tutor's injury.
On May 16, 2012, defense counsel for Liberty filed an answer
denying the material allegations of Tutor's petition to
controvert. Liberty's counsel also served Tutor with a
first set of interrogatories and request for production of
In a letter dated May 31, 2012, Tutor's counsel provided
Liberty with a document authorizing the release of
Tutor's protected health information. On June 21, 2012,
Tutor mailed his discovery responses to Liberty's
attorney. On June 25, 2012, and July 3, 2012, Liberty served
subpoenas on the medical providers identified by Tutor in his
discovery responses. Liberty included an explanatory letter
and "Medical Records Affidavit" form to be
completed and returned with any medical records regarding
Liberty then received the medical records from Tutor's
medical providers, including Dr. Crosswhite, Dr. Gray,
Tutor's physical therapists, and Tutor's
chiropractor, Dr. Darrell Blain. Liberty also received
Tutor's MRI results. The record reflects that Liberty
first began receiving Tutor's medical records through
discovery at the end of June 2012. Liberty continued to
receive these records through August 2012.
Tutor's medical records from his chiropractor, Dr. Blain,
reflect that Tutor had been receiving treatment from him due
to a "frequent moderate grade of burning pain in
[Tutor's] right middle back" since November
2010. Dr. Blain's records from Tutor's
November 29, 2010 visit reflect that Tutor stated,
"[T]here is no change in the pain in his right middle
back. On a visual analog scale of 0 to 10 with 0 being no
pain and 10 being the worst pain possible, he reports his
overall pain is a 7." Tutor continued to see Dr. Blaine
On July 13, 2011, less than two months before Tutor's
injury, Dr. Blain's records show that Tutor's
"chief complaint is an intermittent moderate degree of
dull pain in his right middle back. The patient indicates
that the pain in his right middle back seems to be
worsening." At that time, Tutor described his overall
pain as a "five," on a scale of one to ten.
On August 2, 2012, defense counsel for Liberty first noticed
Tutor's deposition. Liberty deposed Tutor on September
12, 2012. After receiving the above-referenced medical
records from Tutor's physicians, and after deposing
Tutor, Liberty filed an amended answer to the petition to
controvert on September 19, 2012. (In this amended answer,
Liberty admitted that the relationship of employer and
employee existed at the time of the injury, that the parties
were subject to the Mississippi workers' compensation
laws at the time of Tutor's alleged injury, and that
notice of injury complained of in the petition was received.)
That same day, Liberty advised Tutor's attorney that it
was requesting an "Employer's Medical
Examination" (EME) of Tutor to be performed by Dr. John
Davis in Jackson. Liberty maintained that pursuant to
Mississippi Code Annotated section 71-3-15(1) (Rev.
2011) and Mississippi Workers'
Compensation Commission General Rule 1.9,  Liberty
possessed a right to seek an EME of Tutor.
Tutor's attorney objected to the EME, so Liberty filed a
motion to compel the EME with the Commission. In a telephonic
hearing held on October 22, 2012, the administrative judge at
the Commission granted Liberty's motion to compel the
On October 16, 2012, Liberty received a copy of Tutor's
prior application for short-term disability benefits.
On October 31, 2012, Dr. John Davis conducted Tutor's EME
at NewSouth NeuroSpine in Flowood, Mississippi. Dr. Davis
issued a report stating that his examination of Tutor and
Tutor's medical records supported the compensability of
the claim. Dr. Davis found as follows:
ASSESSMENT AND PLAN: This is 48-year old gentleman who
suffered a well-documented work injury on 09/01/2011 that was
reported immediately and led to a supervisor coming and
working with him for the remainder of the day. The patient
has consistently given exactly the same description of his
injury of twisting while he was carrying a box weighing about
60 pounds due to a dog barking at him and perhaps lunging at
him. While it is clear that Tutor did seek and receive
chiropractic care for what was sometimes described as low
back discomfort and sometimes described as mid[-]back
discomfort either on the left or the right hand side, he is
clear in stating today that that was treatment he sought just
because it helped with stress. Furthermore, the testimony of
both of his supervisors was that he never complained of back
or spine problems while working at UPS nor did he ever miss
any work while at UPS due to a back or spine problem.
Furthermore, his treating chiropractor in reevaluating him
noted and wrote in a letter that his problems since
09/01/2011 are completely different from what he was treating
the patient for prior to that date. Additionally according to
the records that l have, Tutor's last visit with the
chiropractor was on 07/13/2011 or greater than six weeks
prior to his reported work injury of 09/01/2011. For all of
the reasons noted above, it is my opinion with a reasonable
degree of medical probability that Tutor did indeed suffer an
injury on the job associated with a twisting injury on
09/01/2011 and that the care that he has obtained since that
point is indeed directly causally related to that injury. My
opinion is based on the history from the medical record as I
have summarized above as well as the history provided by the
. . . .
In my opinion, the next step in this case should be a
determination by either Dr. Gray or Dr. Martinez of when the
patient has reached MMI. Typically this wou1d entail a
functional capacity evaluation followed by a declaration of
MMI and an impairment rating as well as a declaration of
permanent work restrictions.
After receiving Dr. Davis's report, Liberty filed an
amended answer on November 6, 2012, and accepted
compensability of Tutor's claim. The record shows that
Liberty accepted compensability of Tutor's claim without
conducting a functional-capacity evaluation as suggested by
Dr. Davis. Liberty subsequently paid all indemnity benefits
and medical expenses owed to Tutor or his medical providers.
Liberty ultimately paid Tutor for his total loss of
wage-earning capacity in the amount of $160, 000.
On October 22, 2013, Tutor filed a complaint in the Clay
County Circuit Court against Liberty, UPS, Dallas, and King
in this instant action. In the complaint, Tutor asserted that
he was entitled to extra-contractual compensatory damages and
punitive damages from the defendants for the alleged
bad-faith handling of his prior workers' compensation
claim. Just prior to the trial, Tutor voluntarily dismissed
the individual defendants King and Dallas. The trial was then
limited to Tutor's claims against UPS and Liberty.
A jury trial was held on July 17-22, 2017. At trial, the jury
heard testimony from Tutor and his wife, Kim, as well as
Dallas; King; Gary Bishop, a supervisor at UPS; Rupert
Cornwall, a supervisor at UPS; Quarles, an expert in the
field of workers' compensation procedure and claims
handling adjusting; Dr. Crosswhite, Tutor's general
practitioner; and Jim Higginbotham, Liberty's expert
witness in the field of Mississippi workers' compensation
law, practice, and standards, as well as the standards
applicable to insurance companies and adjustors.
At the close of Tutor's case-in-chief, Liberty moved for
a directed verdict on the ground that Liberty possessed an
arguable basis to initially deny Tutor's claim and then
investigate the claim. The trial court denied the motion. The
trial court again denied the motion after all parties rested.
The jury returned a verdict awarding Tutor $500, 000 in
extra-contractual damages against UPS and $100, 000 against
Liberty. On Tutor's claim for punitive damages, the jury
returned a verdict ruling in favor of Tutor but awarding no
damages against UPS or Liberty.
After the trial but before a judgment was entered, UPS and
Tutor reached a confidential settlement of Tutor's claim
against UPS. On August 21, 2017, the trial court
entered its final judgment against Liberty for $100, 000 and
awarded no punitive damages against Liberty.
On August 31, 2017, Liberty filed a motion for judgment
notwithstanding the verdict (JNOV) asserting, among other
things, that Liberty possessed an arguable, good-faith basis
for its initial denial of Tutor's claim and that Liberty
possessed the right to fully investigate Tutor's claim.
The trial court heard arguments on the motion, and on
December 14, 2017, the trial court entered an order denying
Liberty's motion. On January 11, 2018, Liberty filed its
notice of appeal.
In its appellate brief, Liberty sets twelve assignments of
error, which we quote in full:
1. Liberty was the worker's compensation carrier for
Tutor's employer, [UPS]. Liberty received its first
notice of Tutor's injury when it received the [p]etition
to [c]ontrovert he filed in the [Commission] approximately
eight and a half . . . months after his alleged injury and
approximately two months after he retained counsel. Can
Liberty be subjected to extra-contractual damages for
exercising its rights under the Mississippi Workers'
Compensation Law. . . and the Rules of the [Commission] in
its investigation and handling of Tutor's claim?
2. Is the evidence sufficient to support the elements
necessary to establish a claim for extra-contractual damages
against Liberty, including the evidence necessary to
establish liability and the evidence necessary to support the
specific damages allegedly caused by Liberty?
3. Is the evidence sufficient to prove the absence of a
legitimate or arguable reason for Liberty's handling of
Tutor's claim for worker's compensation benefits?
4. Is the evidence sufficient to support the damage award
against Liberty, including the award of damages for mental or
emotional distress and the penalty Tutor allegedly incurred
from withdrawing funds from his retirement account?
5. Did the trial court erred in denying Liberty's
Daubert [m]otion and allowing [Tutor] to offer the
opinions of his expert, Lydia Quarles?
6. May the opinions of [Tutor's] expert, Lydia Quarles,
be considered, in whole or in part, in determining the
sufficiency of the evidence to support Tutor's claims for
extra[-]contractual and punitive damages?
7. Is the evidence sufficient to create a jury issue on the
elements necessary to establish a claim for punitive damages
8. Is the evidence sufficient to prove that Liberty committed
an intentional, willful or malicious wrong or acted with
gross negligence or a reckless disregard for Tutor in its
handling of his claim for worker[s'] compensation
9. Is the evidence sufficient to prove by clear and
convincing evidence that Liberty acted with actual malice,
gross negligence which evidenced a willful, wanton or
reckless disregard for the safety of others, or that it
committed actual fraud, as required by Miss[issippi] Code
Ann[otated] [section] 11-1-65 [(Supp. 2004)]?
10. Is the evidence sufficient to prove that Liberty's
handling of Tutor's claim rose to the level of an
independent tort or constitutes "bad faith" under
11. Under Mississippi law, the duty of good faith and fair
dealing applies to both parties. Did Tutor breach his duty of
good faith and fair dealing by failing to give Liberty an
opportunity to consider his claim before commencing
litigation in the [Commission]? If so, what effect does his
breach have on his right to recover extra-contractual damages
12. Is the evidence sufficient to support the jury's
answer to question no. 1 of its response to the [s]econd
[s]et of [i]nterrogatories as to Liberty regarding the
punitive damages issue?
the issue of whether the evidence presented at trial was
insufficient to support the jury's verdict dispositive,
and we therefore decline to address the remaining issues.
Liberty argues that the evidence presented at trial was
insufficient to support the jury's verdict that Liberty
was liable to Tutor for extra-contractual damages.
Accordingly, Liberty maintains that the trial court erred by
failing to grant its motion for a directed verdict at the
close of Tutor's case-in-chief and in failing to grant
Liberty's posttrial motion for a JNOV. As we will
discuss, Tutor bore the burden of proving that Liberty either
lacked a legitimate or arguable basis for denying his
workers' compensation claim or that Liberty committed a
willful or malicious wrong or acted with gross and reckless
disregard for his rights. After reviewing the evidence in the
light most favorable to Tutor, the nonmoving party, we find
that Tutor failed to meet his burden of proving bad-faith
handling of his workers' compensation claim by Liberty.
"A motion for a directed verdict made at the end of the
plaintiff's case-in-chief, a renewed motion for a
directed verdict at the end of all evidence, a request for a
peremptory instruction, and a motion for a JNOV are all
procedural vehicles for challenging the sufficiency of the
evidence." Latham v. Johnson, 262 So.3d 569,
581 (¶69) (Miss. Ct. App. 2018). We review a trial
court's denial of a motion for a directed verdict and a
motion for a JNOV de novo. McGee v. River Region Med.
Ctr., 59 So.3d 575, 578 (¶8) (Miss. 2011); see
also Latham, 262 So.3d at 581 (¶68) (We apply the
same standard when reviewing a trial court's denial of a
directed verdict and a JNOV.).
When reviewing a trial court's ruling on a motion for a
directed verdict, we "must look solely to the testimony
provided by the nonmoving party, reviewing the evidence in
the light most favorable to the nonmoving party and giving
that party the benefit of all favorable inferences that
reasonably may be drawn from the evidence." Univ. of
Miss. Med. Ctr. v. Lanier, 97 So.3d 1197, 1200
(¶12) (Miss. 2012). "If the evidence presented
creates a question of fact upon which reasonable minds could
differ, then the motion for [a] directed verdict should be
denied." Id. This Court will reverse a trial
court's denial of a motion for a directed verdict
"if the evidence, as applied to the elements of a
party's case, is either so indisputable, or so deficient,
that the necessity of a trier of fact has been
obviated." Am. Optical Corp. v. Estate of
Rankin, 227 So.3d 1062, 1068 (¶20) (Miss. 2017).
It is important to clarify that "[o]n appeal, when the
sufficiency of the evidence is challenged, 'this Court
properly should review the [trial court's] ruling on the
last occasion when the sufficiency of the evidence was
challenged before the trial court.'" Jernigan
v. Humphrey, 815 So.2d 1149, 1152 (¶12)
(Miss. 2002). In the present case, the last occasion on which
the trial court made a ruling on the sufficiency of the
evidence was the denial of Liberty's JNOV motion. The
supreme court explained that
[a] motion for JNOV tests the legal sufficiency of the
evidence supporting the verdict, not the weight of the
evidence. Where a motion for JNOV has been made, the
trial court must consider all of the evidence-not just
evidence which supports the non-movant's case-in the
light most favorable to the party opposed to the motion.
The non-movant must also be given the benefit of all
favorable inferences that may reasonably be drawn from the
evidence. If the facts and inferences so considered point so