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Liberty Insurance Corp. v. Tutor

Court of Appeals of Mississippi

October 29, 2019

LIBERTY INSURANCE CORPORATION APPELLANT
v.
ANTHONY LEE TUTOR APPELLEE

          DATE OF JUDGMENT: 08/21/2017

          CLAY COUNTY CIRCUIT COURT HON. LEE SORRELS COLEMAN TRIAL JUDGE

          ATTORNEYS FOR APPELLANT: CLIFFORD KAVANAUGH BAILEY III GREGG A. CARAWAY

          ATTORNEYS FOR APPELLEE: LANCE L. STEVENS RODERICK D. WARD III

         EN BANC.

          CARLTON, P.J.

         ¶1. 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.

         ¶2. 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 appeal.

         ¶3. 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.

         ¶4. 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.[1] 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.

         FACTS

         ¶5. 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.

         ¶6. 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.

         ¶7. 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.[2] 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 Liberty.

         ¶8. 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."[3] 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.

         ¶9. 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."[4] 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 complaints."[5]

         ¶10. 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.

         ¶11. 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.

         ¶12. 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.[6] 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.

         ¶13. 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."

         ¶14. 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.

         ¶15. 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.

         ¶16. 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.

         ¶17. 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.

         ¶18. 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.

         ¶19. 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.

         ¶20. 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.

         ¶21. 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.

         ¶22. 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.

         ¶23. 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 (Commission).[7]

         ¶24. 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.

         ¶25. 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.[8]

         ¶26. 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 documents.

         ¶27. In a letter dated May 31, 2012, Tutor's counsel provided Liberty with a document authorizing the release of Tutor's protected health information.[9] 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 Tutor's treatment.

         ¶28. 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.[10]

         ¶29. 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.[11] 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 periodically.

         ¶30. 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.

         ¶31. 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)[12] and Mississippi Workers' Compensation Commission General Rule 1.9, [13] Liberty possessed a right to seek an EME of Tutor.

         ¶32. 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 EME.

         ¶33. On October 16, 2012, Liberty received a copy of Tutor's prior application for short-term disability benefits.

         ¶34. 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 patient himself.
. . . .
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.

         ¶35. 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.

         ¶36. 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.

         ¶37. 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;[14] 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.

         ¶38. 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.

         ¶39. 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.

         ¶40. After the trial but before a judgment was entered, UPS and Tutor reached a confidential settlement of Tutor's claim against UPS.[15] On August 21, 2017, the trial court entered its final judgment against Liberty for $100, 000 and awarded no punitive damages against Liberty.

         ¶41. 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.

         ¶42. 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 against Liberty?
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 benefits?
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 Mississippi law?
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 from Liberty?
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?

         We find 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.

         DISCUSSION

         ¶43. 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.

         ¶44. "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.).

         ¶45. 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).

         ¶46. 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 ...

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