                      IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2003-CA-00809-SCT

TERESA FERGUSON, INDIVIDUALLY AND ON
BEHALF OF RUSTY FERGUSON, A MINOR

v.

BOBBY SNELL AND GUIDEONE MUTUAL
INSURANCE COMPANY

DATE OF JUDGMENT:                          02/13/2002
TRIAL JUDGE:                               HON. LAMAR PICKARD
COURT FROM WHICH APPEALED:                 COPIAH COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   MICHAEL S. ALLRED
                                           KATHLEEN H. EILER
ATTORNEYS FOR APPELLEES:                   WILLIAM W. McKINLEY, JR.
                                           PHILLIP W. GAINES
                                           TIMOTHY D. MOORE
                                           WADE G. MANOR
                                           KENNETH TREY O’CAIN
                                           BRIAN DOUGLAS MAYO
NATURE OF THE CASE:                        CIVIL - INSURANCE
DISPOSITION:                               AFFIRMED – 12/16/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       GRAVES, JUSTICE, FOR THE COURT:


¶1.    This appeal is from an action for negligence resulting from an automobile accident

between Teresa Ferguson and Bobby Snell. The jury returned a verdict in favor of defendants,

Snell and GuideOne Mutual Insurance Company.          However, the jury specifically found
GuideOne included language in its policy which was unauthorized by Mississippi law, and

awarded Ferguson $25,000 in actual, extracontractual damages and $1,000,000 in punitive

damages. Ferguson’s motion for judgment notwithstanding the verdict as to the verdict in favor

of Snell was subsequently denied.            GuideOne’s motion for judgment notwithstanding the

verdict was granted, and the trial court entered a judgment in favor of GuideOne. We are called

upon to consider whether the trial court erred in admitting certain documents into evidence and

whether the denial of Ferguson’s motion for judgment notwithstanding the verdict as to Snell

was proper. Finding no reversible error, we affirm the trial court’s judgment.

                               FACTS AND PROCEEDINGS BELOW

¶2.         This suits stems from an accident between Teresa Ferguson and Bobby Snell. Ferguson

was traveling north on Highway 51, and Snell was driving south in a pickup truck with a cattle

trailer hitched to it. As the two vehicles passed each other, two tires spun off Snell’s cattle

trailer; one of the tires hit Ferguson=s car. She suffered spine, wrist, arm, and shoulder injuries

as a result of that collision. Ferguson’s son, Rusty, suffered minor injuries.

¶3.          Ferguson contended that Snell was negligent in maintaining the wheels on the trailer,

urging      that the wheels on the cattle trailer were not sufficiently tightened and that the center

holes of the tires were “wallowed out.”           Most importantly, Ferguson further contended that

Snell had actual knowledge of the condition of the tires but failed to keep them adequately

inflated.

¶4.         In response, Snell offered that he performed a walk-around inspection to ascertain if

any of the tires were low on air before he started his trip.           After commencing his trip, upon

discovering that one of the tires needed air, Snell inflated it. The tire separation did not occur


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until three hours into Snell’s trip with a fully-loaded trailer.     This testimony was presented at

trial, and the jury concluded that Snell acted with reasonable care under the circumstances and

did not cause or contribute to the alleged injuries of Ferguson.

¶5.     At the time of the accident, Snell had insurance coverage with liability limits of

$25,000 for medical injuries. Ferguson=s vehicle was insured with GuideOne Mutual Insurance

Company, and after the accident, she filed a claim for underinsured motorist benefits in the

event that her damages were greater than the amount covered by Snell=s liability insurance.

Ferguson knew that such coverage would compensate her for any difference between her actual

bills and Snell’s coverage.       After GuideOne reviewed Snell=s insurance policy, it determined

that he was not underinsured. GuideOne concluded that the liability insurance coverage amount

was equal to the coverage Ferguson had under her underinsured motorist benefits.           Ferguson

then filed a claim against GuideOne alleging bad faith denial of her claim, stating that she had

two vehicles insured by her GuideOne policy with uninsured/underinsured coverage.                She

alleged that the limits were $100,000 per person/$200,000 per occurrence.

¶6.     At trial, the jury was given 12 special interrogatories. It returned a verdict that Snell had

not been negligent.     The jury also found that Ferguson had uninsured motorist liability in the

amount of $25,000 per person/$50,000 per accident and that the coverage applied only to one

vehicle. The jury also specifically found that GuideOne was not liable for bad faith or for the

breach of any implied covenants or express contracts.              However, the jury did find that

GuideOne had included language in its insurance policy which was unauthorized by Mississippi

law, although such an action did not amount to fraud. The jury awarded Ferguson $25,000 in

actual, extracontractual damages and $1,000,000 in punitive damages.


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¶7.     Ferguson filed a motion for judgment notwithstanding the verdict or, in the alternative,

for a new trial as to the verdict in favor of Snell. The trial court denied her motion. GuideOne

also filed a motion seeking a j.n.o.v. regarding the verdict against it. The trial court granted this

motion and entered judgment for GuideOne. Ferguson appeals, arguing there were two flaws

in the trial below. Because there was no error, we affirm the decision of the trial court.

                                             DISCUSSION

        I.    Did the trial court abuse its discretion in admitting certain computer-
             generated documents into evidence?

¶8.     The admission or exclusion of evidence is within the discretion of the trial judge and

will not be reversed absent an abuse of that discretion. Gaines v. K-Mart Corp., 860 So.2d

1214, 1219 (Miss. 2003); Barrett v. Parker, 757 So.2d 182, 183 (Miss. 2000); Broadhead

v. Bonita Lakes Mall, Ltd., 702 So.2d 92, 102 (Miss. 1997); Sumrall v. Miss. Power Co., 693

So.2d 359, 365 (Miss. 1997).           Ferguson claims the jury=s        finding that GuideOne=s policy

afforded only $25,000 in uninsured motorist coverage to Ferguson was based upon

unauthenticated hearsay which should never have been admitted into evidence.                  Ferguson

further argues that she established at trial that the only insurance policy and declarations sheet

which had been issued to her by GuideOne showed that two vehicles were insured. Therefore,

because two vehicles were insured, Ferguson claims that the uninsured motorist limit of

$25,000 per vehicle should have been stacked, thereby affording $50,000 in uninsured

motorist coverage.

¶9.     However, GuideOne did not pay uninsured motorist benefits to Ferguson based on the

assertion that there was only one vehicle covered under the policy. GuideOne determined that



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the applicable uninsured motorist liability limit was $25,000.          Consequently, GuideOne found

that its uninsured motorist limits did not exceed the liability of Snell and that Snell=s vehicle

was not underinsured.      Therefore, according to GuideOne, no benefits were due to Ferguson.




¶10.   The evidence offered by GuideOne in support of its assertion that only one vehicle was

insured under the policy was made in the form of previously “purged” computer generated

documents. The evidence was admitted under the business records exception of Miss. R. Evid.

803(6), which provides that such records are admissible upon a showing of the following

foundation requirements:

       (1) the statement is in written or recorded form;
       (2) the record concerns acts, events, conditions, opinions or diagnoses;
       (3) the record was made at or near the time of the matter recorded;
       (4) the source of the information had personal knowledge of the matter;
       (5) the record was kept in the course of regular business activity; and
       (6) it was the regular practice of the business activity to make the record.

¶11.   Ferguson argues that the purged computer generated documents showing that only one

car was insured by GuideOne failed to meet the business records exception for a number of

reasons. First, Ferguson asserts that the document was not prepared at or near the relevant

dates of the policy period for which it purports to provide a record. Ferguson=s policy from

1997 through 1999 was actually prepared on October 25, 2001. Second, Ferguson asserts that

the sponsoring witness, Sue Anderson, did not have personal knowledge of the matter because

she did not actually input the information into the computer and was not a custodian of the

records for GuideOne. Additionally, Ferguson argues that the documents were not kept in the

course of regularly conducted business because Anderson testified that GuideOne did not



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regularly prepare any record of policy activity following a purge of such records.                These

arguments are misplaced.

¶12.    Under Rule 803(6), the focus is properly placed on the time period when the documents

were created, the trustworthiness of the documents,           and whether their creation was in the

regular course of business.       The record reveals that these documents were created in the

regular course of business by an employee of GuideOne, although Anderson was not the exact

employee that entered the data into the computer system.          Yet “it is not necessary to call or

to account for all participants who made the record.” Miss. Gaming Comm'n v. Freeman, 747

So.2d 231, 242 (Miss. 1999); Miss. R. Evid 803(6) cmt. It is only necessary that testimony

concerning the source of these documents is offered by an individual “with knowledge who is

acting in the course and scope of the regularly conducted activity.” Id.

¶13.    In the case at bar, Anderson testified to the contents and identification of the computer

generated documents. She was an employee of GuideOne with the knowledge of the contents

of the computer-generated document, its preparation, and how to access the documents from

storage on her computer.        Anderson testified to the contents of the document in question,

which recorded every transaction on the insurance policy, and to exactly how each number on

the page came to be.       She further testified as to how the computer system functioned and

explained that the computer makes some entries automatically.              The record reflects that each

of the entries were done in the course of regular business with GuideOne.

¶14.    This amount of knowledge fully conforms to the requirements of our Rules of

Evidence. GuideOne=s sponsoring witness was well-versed with the knowledge required under




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the rule, provided testimony that authenticated the documents under Miss. R. Evid. 901(b), and

also demonstrated to the trial court that the records were trustworthy and reliable.

¶15.    Additionally, Ferguson=s counsel had ample opportunity to cross-examine Anderson as

to the trustworthiness and the reliability of these documents, and did so.             Counsel also used

an expert witness for the sole purpose of impeaching Anderson’s testimony and the documents.

The expert witness testified that there were no documents to support the information of the

purged computer-generated document and that the computer-records lacked credibility.                The

trial court afforded Ferguson every opportunity to call into question the validity of the

document; the jury apparently weighed the impeachment evidence in reaching its verdict.             We

hold that there was no abuse of discretion in allowing the computer-generated documents into

evidence.

        II. Did the trial court err by denying Ferguson’s motion for
           judgment notwithstanding the verdict?

¶16.    When a trial judge denies a motion for a judgment notwithstanding the verdict, we will

review all of the evidence in the light most favorable to the party opposed to the motion.          See

Upchurch ex rel. Upchurch v. Rotenberry, 761 So.2d 199, 204 (Miss. 2000). If the facts and

inferences from this evidence point so overwhelmingly in favor of the movant that reasonable

jurors could not have arrived at a contrary verdict, the motion would be properly granted. Id.

On the other hand, if there is evidence of such quality and weight that reasonable and

fairminded jurors in the exercise of impartial judgment might reach different conclusions, the

jury verdict should be allowed to stand, and the motion would be properly denied. Id.




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¶17.     While it is undisputed that the tires actually came off the trailer, the parties have hotly

contested whether negligence was the culprit. On the morning of the accident, Snell borrowed

the cattle trailer from Michael Lewis         and performed a walk-around inspection of the trailer

and checked the tires. One tire was low, so he added air. This was at approximately 9:00 a.m.

Snell had been towing the trailer for a little more than three hours when the two tires came off

the trailer.

¶18.     At trial, Snell testified that the tire was low after the trailer was loaded with cattle, but

that he did not know whether it had a leak. He further testified that the trailer was “tracking”

properly while being towed and nothing was out of the ordinary until the accident occurred. He

was driving within the speed limit and did not lose control of his truck at the time of the

accident.

¶19.     Ferguson argued that Snell was negligent in failing to stop within those three hours of

travel and in failing to check the air in the tire. The jury rejected such a burden and concluded

that his actions and inspection were reasonably diligent and did not rise to the level of

negligence.

¶20.     In City of Jackson v. Locklar, 431 So.2d 475, 478-79 (Miss. 1983), we affirmed a trial

court=s denial of j.n.o.v. and related that “[o]ur institutional role mandates substantial deference

to the jury=s finding of fact and to the trial judge=s determination whether a jury issue was

tendered.” We may look at the cold black and white of the transcribed record, but we do not

have the benefit of “observ[ing] the manner and demeanor of the witnesses.” Id. at 479.

Therefore “[t]he trial judge's determination whether . . . a jury issue has been presented, must

per force be given great respect here.” Id.


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¶21.    In the case at bar, the jury was presented with all of the facts pertaining to the case, and

it found sufficient evidence to exonerate Snell of all negligence.         While reasonable and

fairminded jurors may have reached a different conclusion, there was sufficient evidence

introduced at trial to reasonably conclude that Snell was not negligent. Accordingly, there was

no error in the trial court’s refusal to grant the motion.

                                              CONCLUSION

¶22.    Because the trial court did not abuse its discretion in allowing the purged computer-

generated documents into evidence and because the denial of Ferguson’s motion for j.n.o.v.

was not in error, the judgment of the trial court is affirmed.

¶23.    AFFIRMED.

       SMITH, C.J., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. WALLER,
P.J., AND RANDOLPH, J., CONCUR IN RESULT ONLY. COBB, P.J., AND DIAZ,
J., NOT PARTICIPATING.




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