                   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.



                                               2
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.



                                            3
¶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



                                               4
Williams 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

                                              5
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



                                               6
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




                                               7
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.

                                                 8
       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



                                              9
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



                                              10
       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.

                                               11
2d 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.



                                             12
¶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




                                            13
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.

                                             14
¶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.

                                                15
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.

                                             16
       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,

                                               17
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).

                                               18
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.




                                                 19
                                     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.




                                            20
