IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-01603-COA PIERCON, INC. AND DENNIS PIERCE, INC. APPELLANTS/CROSSAPPELLEES

v. BRIERFIELD INSURANCE COMPANY APPELLEE/CROSSAPPELLANT DATE OF JUDGMENT: 10/21/2014 TRIAL JUDGE: HON. PRENTISS GREENE HARRELL COURT FROM W HICH APPEALED: LAMAR COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: RICHARD D. NORTON LAW RENCE CARY GUNN JR. ATTORNEYS FOR APPELLEE: L. CLARK HICKS JR. R. LANE DOSSETT NATURE OF THE CASE: CIVIL - INSURANCE TRIAL COURT DISPOSITION: JUDGMENT IN FAVOR OF THE APPELLEE IN THE AMOUNT OF $5,328 AGAINST DENNIS PIERCE INC. AND $45,362 AGAINST PIERCON INC., FOR A TOTAL JUDGMENT OF $50,690 DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 04/19/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. WILSON, J., FOR THE COURT: ¶1. PierCon Inc. and D ennis Pierce Inc.—both o wned and operated by D ennis Pierce and ref erred to collectively a s “Pierce”—dispute the am ount of insurance prem iu ms that Brierf ield Insurance Com

pany (“Brierf

ield”) charged under two com m ercial general liability policies. Pierce ref

used to pay certain prem i um s because h e disagreed wi t h B r ierf ield’scalculations. Brierf ield eventually f

iled suit to collect the prem ium s in the County Court of
Lam ar County

. Af

ter a trial, the county court f ound that language in the policies s tating that
prem ium s would b e c a l c u l ated i n accordance “ w ith our [ i.e., Brierf ield’s] rules and rates”

was vague and am

biguous and that Brierf ield’s me t h o ds of auditing a nd calculating
prem ium s were arbitrary and capricious. The county court recalcu l a t e d the prem ium s and entered j udgm ent in f

a vor of Brierf

ield f or the recalculated am ount, which was signif icantly less than Brierf

ield had dem anded. ¶2. Brierf

i eld appe a l e d t o L a ma r C o u n t y C i r c u i t Court, a n d Pierce cross-appealed. Brierf ield claim ed t hat the county court erred b y f inding its p olicy l anguage to b e am biguous

a nd b y d eclaring its auditing m ethodologies and c alculations “arbitrary and c a pricious. ” Pierce’s cross-appeal argued that the county court erred by f ailing to give him of

f s e t t i ng credit f or a prem ium overpay

m e nt that Brierf

ield f ailed t o ref

u nd. The circuit c ourt reversed the county court’s decision, f inding t hat the policies were neither vague n or am biguous and that Brierf

ield’s auditing practices were neither arbitrary nor capricious

. Accordingly , the circuit court awarded Brierf ield the prem ium s it s ought. O n cross-appeal, the court granted Pierce the of

f s et he sought. ¶3. Both parties appealed f rom the circuit court’s judgm ent. W ith respect to the policies’ language and proper a

pplication, P ierce basically argues that t he county court was right and the circuit court erred. On cross-appeal, Brierf ield argues that the c ircuit c ourt should have awarded pre-judgm e nt and post-judgm ent interest and erroneously granted P ierce an of f set

2based on the prem ium o verpay m ent. In the m ain appeal, we af f irm because the c ircuit court correctly in t e r preted the p olicies. In the cross-appeal, we af f irm in part and reverse and

rem and in part. W e f

i nd no a buse of discretion in the circuit court’s d enial of pre-judgm ent interest, but Pierce c onf

esses error as t o the other two issues raised in the cross-appeal, and we reverse and rem and on those issues.

FACTS AND PROCEDURAL HISTORY ¶4. De n n is Pierce is owner and operator of t wo construction businesses, Dennis Pierce
Inc. (DPI) and P ierCon I n c . B r ierf ield Insurance Com

pany issued com m ercial general liabi l i t y ( CGL) policies t o the com panies f or policy periods covering Decem ber 2 7, 2005, through January 31, 2 008. Pierce paid a deposit p rem i um f o r each p olicy

. The declaration
page of e ach policy listed a “ total advance prem ium ” and a n ote t hat the p rem ium w a s “subject to audit.” The policies all included the f ollowing provision:
5. Prem ium Audits

a. W e will com

pute all prem ium s f

or this C o v e rage Part in accordance with our rules and rates. b. Prem ium shown in this Coverage Part as advance prem ium i s a deposit prem ium only

. At the close of each audit p eriod we will com pute the earned prem ium f o r that period and send n otice to the f i r s t Nam e d I nsured. The d ue d ate f

or a udit and retrospective prem ium s is the d ate shown as the due date on the bill. I f the sum of the advance and audit prem ium s paid f or the policy period is greater than t he earned prem ium , w e will return the excess to the f

irst Nam ed Insured.

c. The f

i rst Nam ed Insured m

ust keep records o f t h e inf orm ation we need f or prem ium com

putation, and send us copies a t s u c h
3tim es as we m ay request. ¶5. I n 2 0 0 7 a

n d 2 0 0 8 , B r i e r fi e l d c onducted prem ium audits to determ ine e arned prem ium s f or the prior policy y ears. Based on these audits, Brierf ield billed D PI a nd PierCon f or additio n a l e a r n e d prem ium s, but DPI and PierCon ref u sed to pay balances of $11,021 and $45 , 3 7 2, respectively

. Pierce r ef used to pay these am ounts because h e claim ed that Brierf ield had m isclassif

ied s om e of his subcontractors, which resulted in inf l ated prem ium s. The parties w ere unable to resolve the dispute, so in February 2009 Brierf ield sued DPI and PierCon in the County

Court of Lam ar County

. ¶6. The c ase was tried in February 2010. Thom as Quaka, a vice president f or B rierf ield, testif i ed that Brierf

ield m et with Pierce and his representatives in Decem ber 2007 to discuss the prem ium audit, the rates used, and the m ethodology applied. Quaka said that B rierf ield representatives thoroughly explained the auditing process as well as the docu m ents and

m aterials used to calculate the earned prem ium

. ¶7. Q u a k a a l s o d e s c ribed the rules and rates that Brierf ield uses in prem iu m a u d i t s . Quaka testif

ied that the Insurance Services Of f ice (ISO) is a s tatistical bureau that f iles rates, rules, and f

orm s on behalf o f insurance com panies. Because Brierf

ield had f iled notice with the M i s s issippi Insurance Departm ent ( MID) that i t is a n “ISO com pany , ” at all relevant tim es i t f ollowed I SO’s rates a nd rules f or Pierce’s CGL p olicies and all o ther sim ilar CGL policies. ISO’s rates and r u les are f iled with the MID. 1 Quaka testif ied t hat ISO also issues

1 S ee M iss. C o d e A n n . § § 8 3 -2 -9 & 8 3 -2 -1 5 (R e v . 2 0 1 1 ). 4Prem ium Audit Advisory Servi c e ( P A AS) bulletins, which provide interpretations of ISO

f ilings f or use by all ISO com

panies. Brierf

ield f ollows ISO guidelines and P AAS bulletins when conducting prem ium audits. ¶8. The dispute in t his case center s o n t h e c l a s s if ication of Pierce’s subcontractors f or purposes of calculating prem ium s . The classif ication m a tters because it determ ines what portion o f pay

m ents to subcontractors will be treated as “Pay roll” and w hat portion will be treated as “Total Cost.” The a llocation between Pay roll and Total Cost m a tters because Total C o s t i s m ultiplied by f

actors ranging f

rom 1.0 to 2.0 per thousand d ollars to c alculate the
prem ium related to the pay m ent t o the subcontractor, whereas Pay r oll is m ultiplied by f

actors ranging f rom 10 to 100 per thousand dollars to calculate the prem ium related to the pay m ent. Thus, allocations to Pay

roll result in higher prem ium s. ¶9. For insured subcont r a c t o r s , a l l p a y me nts a re allocated to Total Cost. It does not
appear that there is any

dispute in this case regarding insured subcontractors. T he parties’ dispute concerns u ninsured s u bcontractors. As Quaka ex p l a i n e d, Brierf i eld m u st treat an uninsured subcontractor as t hough Pierce’s CGL policy covers it—as t hough i ts e m ploy ees

are Pierce’s—which results in a higher premi u m f o r Pierce. W ith r espect to uninsured subcontractors, Brierf

ield app lies the f

ollowing r

ules, w hich are set out in a January 2004 PAAS Bulletin (and in sim ilar f orm in a 1992 PAAS Bulletin):

• If the actual pay

r oll is available, include only the pay roll f or e m ploy ees while they

were working on y our insured’s project(s).

• If the pay roll records are not available and the subcontractor supplied

5labor and m a terials, not less than 50% and up to 100% o f the total cost should be i ncluded in the audit. If the insured cannot provide this split, include the entire am ount paid to the subcontractor as pay roll.

• If the pay

roll r ecords are not available, and the subcontractor provided labor only , the a

udit would include not less t han 90% o f the am ount paid to the subcontractor as pay roll. Both Quaka and Brierf

ield’s auditor, Jam es Hobson, testif ied that Brierf

ield a p p lies these rules i n t he m anner m o st f a vorable to the insured. That is, if pay roll records are n ot available f or a l a b or-and-m aterials subcontractor, only 50% of the t otal a m ount paid to the subcontractor is allocated to pay roll; and i f p ay

roll records are not available f or a labor-only subcontractor, then only 90% of the total am ount paid is allocated to pay roll. ¶10. P i e r c e d i d n o t b e l ieve that Brierf ield f airly applied these rules to his uninsure d subcontractors. In general, Pierce believed that m any o f his labor-and-m aterials subcontractors were im

properly classif

ied a s labor-only subcontractors, and he b elieved that the 90% rate was inappropriate f or all or alm ost all of his subcontractors. In a com plaint to MID, Pierce c laim ed that, “ [ a]f ter m uch r e s e a rch, [ he had] verif iable p roof that the labor portion of the [ sub]contractors in question is actually seventy f i ve percent less than” shown in Brierf ield’s bills. H owever, a t trial, Pierce adm itted that he h ad n e v e r p r o v ided any verif iable proof to B rierf

ield or MID. In f

act, he adm itted t hat he h ad no v erif iable records showing that a ny of the subcontractors provided labor and m aterials rather than labor only

. Rather, Pierce testif

ied that he knew this based on his extensive experience i n the industry and com m on sense.

6¶11. Quaka a n d P i e r c e also testif ied about t heir correspondence with MID prior to this litigation. Af

ter Pierce m et with Brierf ield in Decem

ber 2007, Pierce wrote to MID to

com plain about Brierf

i eld’s m ethodology

. In Pierce’s letter, he com plained that B rierf

ield ref used to use a 50% rate f

o r his uninsured subcontractors, which was w h a t h i s workers’

com pensation insurers u sed. Q uaka responded to MID on behalf of Brierf i eld a nd provided docum ents explaining their auditing processes. Quaka also e xplained that B rierf ield could

not apply the sam e r ates as Pierce’s workers’ com pensation carriers because workers’

com pensation insurance was very dif f erent f rom CGL insurance. ¶12. Af ter r e c e i v i n g t h e s e l e t t e r s , M I D r e s p o n d ed to P ierce. M ID e xplained their understanding of B rierf

ield’s auditing m ethodology a nd rates and stated t hat they could not “see where Brierf

ield used a n incorrect auditing f actor i n determ ining y our general liability policy .” MID invited Pierce to contact MID’s legal departm ent if he h ad f urther questions, but Pierce did not do so. ¶13. Hobson also testif

ied at trial. He explained that prior to the audit, Brierf i eld contacted the b ookkeeper f

or Pierce’s com

panies, Katrina Delancey , and s h e provided all inf orm ation regarding pay

roll and subcontractors. B rierf i eld used the inf

orm ation provided by Pierce’s bookkeeper to determ ine earned prem ium s under t he policies. Hobson also echoed Quaka’s testim o ny about the rates applicable to uninsured subcontractors. Based o n the inf orm ation provided by Pierce’s bookkeeper, Hobson d eterm ined that f orty -e i g h t o f the f

if ty -three subcontractors were subject to the 90% rate. Hobson testif ied that if he h ad been provided

7with v erif

iable i nf o rm ation that som e of th e s u b c o n tractors were m isclassif ied, B rierf

ield would h ave a djusted its f inal calculation of the p rem i um s owed. However, Pierce never provided any such i nf

orm ation. Hobson and Quaka testif ied that they would have accepted such inf orm ation at or even af

ter their Decem

ber 2007 m eeting with P ierce. Indeed, Quaka testif i ed that Brierf

ield s till would have accepted such i nf orm ation and adju s t e d P i erce’s
prem ium s at the tim e of

the 2010 trial in the county court. ¶14. F o l l o w i n g t r i a l , t h e c o u nty court judge f ound that the policies’ statem ent t h a t Brierf ield woul d “ c o mp u t e a l l prem ium s . . . in a ccordance with our rules and rates” was vague and am

biguous. Thus, the judge stated that he would construe the language in f avor of Pierce, the non-draf

ter. The judge also f

ound that the u se o f t he 90% rate f or labor-only

s u b c o n tractors was “ arbitrary and capricious” and that “[ c]om m on sense dictates t ha t subcontractor pay

m ents are not 90% pay

roll.” The judge then recalculated the p r e mium s using the 50% rate f

or all subcontractors. He f ound t hat DPI a n d PierCon owed Brierf ield $5,274 and $29,426, respectively . He also awarded 3% post-judgm ent interest. Brierf ield appealed to circuit court, and Pierce cross-appealed. ¶15. On appeal, a

pply ing a d e n o v o s t a n d a r d of review, the circuit c ourt reversed the county court’s decision. The circuit judge f ound that the policies’ “rules and rates” language

was not am

biguous. The j udge reasoned that Pierce knew when he p u rchased t he policies that t he prem ium s were subject to adjustm ent b ased on an audit. The judge also e m phasized that Brierf

ield had f iled notice with M ID that i t w o u l d f ollow ISO’s rates and rules. The

8judge a lso f ound that Brierf

ield’s use of t he 90% rate f o r labor-only subcontractors was not arbitrary or capricious. He noted that Brierf i eld based its c l assif

ications on inf

orm ation that Pierce’s com

panies provided; and although Pierce claim e d t o have “verif iable proof

” that Brierf ield’s classif

ications were incorrect, Pierce a dm itted that he never provided that inf orm ation to Brierf

ield, as was his com

panies’ duty under t heir policies. Accordingly , the circuit judge concluded that the county court erred by

im posing the 50% rate. ¶16. In the circuit court, P ierce also argued that B rierf ield o wed him a credit o f $5,693 due

to a prem ium overpay

m ent. During trial, Quaka had acknowledged that Brierf ield had not ref unded t he overpay

m ent. Instead, Brierf

ield applied the o v e rpay

m ent to another policy , albeit w ithout approval f

rom Pierce. The c ircuit judge agreed with Pierce that he w as entitled

to a credit. Thus, the c ircuit court entered judgm ent i n f avor of B rierf

i eld in t he total am ount of $50,690—the total prem ium s claim ed by Brierf ield, less the credit. ¶17. Brierf

i eld f iled a m otion f

or clarif ication of the opinion a n d f o r p r e - j udgm ent and post-judgm ent interest. The court corrected a scrivene r ’ s e r r o r b ut denied Brierf ield’s

r e quest f or pre-judgm ent a nd post-judgm ent interest a s “not w e l l t aken.” Pierce a p p e a l e d f rom the circuit court’s judgm ent, and Brierf ield cross-appealed. DISCUSSION ¶18. Pierce’s a p p e a l t o t his Court raises one issue only : “W hether an i nsurance policy ’s language i s a m

biguous when it provides that t he prem ium can be adjusted retroactively based

on the ‘rules and r ates’ of the insurer and the ‘rules and rates’ are not def ined in the policy .”

9On c ross-appeal, Brierf ield argues that the circuit court e r red by not awarding pre-judgm ent

or post-judgm ent interest and by of f setting the a m ount Pierce owed by $5,693. Pierce now concedes that he was not entitled to the of f set and thus conf

e sses error on that issue. ¶19. W e af

f irm the circuit court’s determ ination that the p olicy language is not am biguous.
W e also conclude that the c ircuit court did not abuse its discretion by deny ing pre-judgm ent interest. However, the c ircuit court erred by deny ing Brierf ield’s request f

or post-judgm ent interest. Theref

ore, w e rem and the case f or the circuit c o urt to enter an am ended j udgm ent that includes an award of post-judgm ent interest but not the $5,693 of f set. I. The Policy Language ¶20. Pierce argues that Brierf i eld’s policies are am

biguous b ecause they say that Brierf ield “will com pute all prem i um s . . . i n a c c o r d a n c e w ith o ur rules and rates,” but t hey do not def ine “our rules and rates.” Pierce argues that a lthough Brierf ield utilizes ISO guidelines and P AAS bulletins in i ts prem ium audi t s , t h e p olicy is am b iguous because it does not expressly ref

erence or incorporate those guidelines or bulletins. Pierce argues that because the polic y i s a mbiguous it m ust be “ interpreted against” its draf ter (Brierf

i eld). By this, Pierce m e ans that we should sim ply apply the 50% rate to a l l of his uninsured subcontractors because, a ccording to Pierce’ s testim ony at trial, that is custom ary in h is industry and

com m only

used in audits of workers’ com pensation policies. ¶21. Brierf

i eld counters that the language is not am biguous because the policies say that Brierf ield will use its “rules and rates,” and, according to Brierf ield, that is exactly

what it

1 0did. Q uaka testif ied that Brierf

ield has identif

ied itself as an ISO com

pany through f ilings with MID, thereby a dopting ISO guidelines and PAAS bulletins. Thus, those guidelines and bulletins have been adopted as part of Brierf ield’s own “rules and rates.” ¶22. “[ T]he i nterpretation of an insurance policy is a question of law,” so “we apply a de

novo standard of review” to the circuit court’s i nterpretation. Hayne v. The Doctors Co. , 145 So. 3d 1175, 1180 (¶10) (Miss. 20 1 4 ) ( q u o t ing Hankins v. Maryland Cas. C o ./Zurich Am.
Ins. , 101 So. 3d 645, 652 ( ¶15) (Miss. 2012)). “The language a n d p rovisions o f insurance policies are viewed as contracts and a re subject to the sam e rules of interpretation as other contracts.” Id. at (¶12). “If a policy i s not am biguous, the court gives ef f ect to its clear and

unam biguous m e aning.” Chevis v. Miss. Farm Bureau Mut. Ins. , 76 So. 3d 1 87, 194 (¶23) (Miss. Ct. App. 2011). “There i s a n am biguity in an insurance contract when t he policy can be interpreted as having two or m ore reasonable m eanings.” Miss. Farm Bureau Cas. Ins.

v. Britt , 8 26 So. 2d 1261, 1265 (¶14) (Miss. 2 002). However, “[ t]he m ere f act that the parties disagree about the m eaning of a provision of a contract does not m ake the contract

am biguous a s a m atter o f law.” Epperson v. SOUTHBank , 93 So. 3d 10, 16-17 (¶18) (Miss. 2012) (quoting D elta Pride Catfish Inc. v
. H ome Ins. , 697 So. 2d 400, 404 (Miss. 1997)).
In addition, “[ t]he f

act that a term is not def

ined in the policy itself does not a lone m ake that

term am biguous.” Chevis , 76 So. 3d at 194 (¶23) (quoting In re K a t r i n a C a n al Breaches Litig. , 495 F.3d 191, 207 (5th Cir. 2007)). ¶23. Apply ing these rules t o Pierce’s argum e nts, we m ay f i rst dispense with the notion that

1 1t h e t e r

m “rules and rates” is am biguous sim

ply because it is not def ined i n the polic y . Chevis , 7 6 So. 3d at 194 ( ¶23). Furtherm ore, b e c a u s e P i e r c e has not articulated any reasonable alternative i nterpretation of the relevant policy l anguage, we f ail to see how that language “can be interpreted as having two o r m ore reasonable m eanings.” Britt , 826 So. 2d

at 1 265 (¶14); see Chevis , 76 So

. 3d at 194 ( ¶24) (holding that a policy term was not

am biguous where the insured was “cr itical of t he circuit court’s

. . . def inition, [ but he] of f er[ ed] no other reasonable alternative interpretation of the t erm ” ). Indeed, Pierce does not interpret the policy language at all but sim ply asks u s to rewrite the p olicy to m a ndate the use of a rate that Pierce considers custom ary and reasonable. ¶24. However, t estim ony a t trial established tha t B r i e r f i e l d f iled with M ID as an “ISO

com pany ” and, theref

ore, f ollowed ISO rules and rates and PAAS bulletins. Accordingly , when the policies ref

er to “ [ B r ierf

ield’s] rules and rates,” we do not think that they can be interpreted to m ean any

t hing other than the rules and r a t e s t h at Brierf ield has adopted by virtue of its f ilings with MID. No viable alternative interpretation has been suggested. ¶25. Pierce’s testim ony at trial ref lects that his com

panies’ grievance i s not truly with the rules and rates used but with the way in which they w ere applied to Pierce’s subcontractors. Pierce d oes not believe that any t hing approaching 90% of p ay m ents to those subcontractors should have been allocated to pay roll. DPI’s a nd PierCon’s CGL policies required them to “keep records o f t h e i n f

orm ation

. . . need[ ed] f

or prem ium com

p utation,” and the PAAS bulletin at issue expressly perm its consideration of such records. If P ierce had presented

1 2Brierf

ield with such inf

orm ation, and if Brierf

ield had ref

used to consider it, this would have been a very dif

f erent case. But Pierce adm itt e d he had no such “verif i able proof

.” More im p ortant, Pierce’s disagreem ent with the results of Brierf i eld’s audit does not rende r the policy itself am

b iguous. W e agree with the circuit judge t hat the policy is not am biguous and theref ore af f irm with respect to the m ain appeal.
II. Pre-judgm ent Interest ¶26. Br i e r f

i e l d c l a im s that the circuit judge erred by declining to award pre-judgm ent interest because the d am ages owed to B rierf ield were liquidated and P ierce “intentionally avoided” pay ing the prem ium s at issue. The g r a n t o r d e n ial of p re-judgm ent interest is reviewed f

or abuse of discretion. Indemnity Ins. of N. Am. v. Guidant Mut. Ins. , 99 So. 3d 142, 156 (¶39) (Miss. 2012) (citing Aetna Cas. & Sur. Co. v. Doleac Elec. Co. , 471 So. 2d 325, 331 (Miss. 1985)). ¶27. Mississippi Code Annotated section 75-17-7 ( Rev. 2013) provides the rate of interest to be applied to judgm e nts. It reads: All judgm ents or decrees f o unded on any sale or c ontract shall bear interest at the sam e rate as the contract evidencing the debt on which t h e j udgm ent or decree was rendered. All other judgm ents or decrees shall bear i nterest at a per annum rate s et by the judge hearing the com plaint f r om a date determ ined by such judge to be f

air but in no event prior to the f iling of the com plaint. Id. As interpreted b y our S uprem e Court, “[ t]his statute does not requir e j u d g e s t o award prejudgm e nt interest, but allows t he judge to determ ine the d ate f rom which i nterest will be calculated. The judge m ay determ ine that int e r est should be calculated o nly f rom the date

1 3of the judgm ent, r ather than bef ore.” Indemnity Ins. , 99 So. 3d at 157 (¶39). Pre-judgm ent interest m a y n o t b e a w a rded unless (1) “the am ount due [ was] l iquidated w hen the claim [ was] originally m ade or . . . t h e denial of [ the] claim [ was] f rivolous or in bad f

aith,” and (2) the com

plaint includes a d e ma n d f o r pre-judgm ent interest. Id. at (¶40) (quoting Upchurch Plumbing Inc. v. G reenwood Util. Comm’n , 964 So. 2d 1100, 1117 (¶43) (Miss. 2007)). H owever, “[ e]ven a f inding of a ll the required f actors d oes not m ake an award of prejudgm e nt i n terest m andatory .” Id. at 158 (¶43). Ra t h e r , even when such an award is
perm issible, “[ w]hether t o a w a r d prejudgm ent interest r ests in the sound d iscretion of the trial court.” Id. ; accord, e.g. , Estate of McLemore v. McLemore , 63 So. 3d 468, 492 (¶75) (Miss. 2011). ¶28. The circuit judge denied Brierf ield’s m otion f

o r p r e - judgm ent interest a s “not well taken,” without f

urther elaboration, but we m ay af f irm if the r ecord discloses any ground on which the judge m ight have exercised his discretion to deny p re-judgm ent i nterest. See, e.g. , Gates v. G ates , 616 So. 2d 888, 890 (Miss. 1 993). W e conclude that the circuit judge did not abuse h is discr e t i o n in deny ing pre-judgm ent interest. B rierf ield did n ot a sk f

or prejudgm ent interest in its original com plaints in t h e c o unty court. In f act, it appears that Brierf ield f i rst m entioned the issue in the proposed f indings o f f

act and c onclusions of law that it f iled a f t e r t r i a l in the county court. By itself , Brierf i eld’s f ailure t o dem and prejudgm ent interest in its c om plaints was a suf

f icient r eason t o d e n y pre-judgm e nt interest. Indemnity Ins. , 99 So. 3d at 157 (¶40).

1 4III. Post-Judgm ent Interest

¶29. Brierf

i eld claim s the circuit judge erred b y n ot granting post-judgm ent interest, which is m andated by section 75-17-7 (quote d i n f ull above). Unlike pre-judgm e nt i nterest, the Mis s i s s i p p i S u prem e Court has held that post-judgm ent interest is a statutory r ight and an award is m andatory

. Miss. Dep’t of Human S ervs. v. McNeel , 1 0 S o. 3d 444, 460 (¶34) (Miss. 2009) (citing Miss. Dep’t of Mental Health v. Hall , 9 36 So. 2d 9 17, 929-30 (¶¶40-41) (Miss. 2006)). A dditionally , Pierce concedes that the circuit judge should have awarded post-judgm ent interest. ¶30. The c ircuit judge erred by declining to a ward post-judgm ent interest to Brierf ield. W e theref ore rem and f

or the judge to award “f air and r easonable” post-judgm e nt interest. Bluewater Logistics LLC v. W illiford , 55 So. 3d 148, 164 (¶74) (Miss. 2011). CONCLUSION ¶31. W e af

f irm the circuit court’s determ i nation that t he ph r a s e “ r u l e s a n d r a tes” as contained in Brierf

i eld’s CGL policy is n ot am biguous. W e also a f

f irm as to the denial of pre-judgm ent interest. However, we rem and f or the circuit court t o am end the judgm ent to include an award o f post-judgm e nt interest p ursuant to M ississippi Code Annotated section 75-17-7 and to elim inate the $5,693 of f set erroneously

credited to Pierce. ¶32. T H E J U D G MENT O F T HE CIRCUIT COURT OF LAMA R C O U N T Y I S AFFIRMED IN PART AND REVERSED A ND REMANDED IN PART. A LL COSTS O F T HIS APPEAL SHALL BE DIVIDED EQUALLY BETWEEN T H E APPELLANTS/CROSS-APPELLEES AND APPELLEE/CROSS-APPELLANT. LEE, C.J., G R I F F IS, P.J., BARNES, ISHEE, CARLTON, F AIR AND
1 5GREENLEE, JJ., CONCUR. JAMES, J., C ONCURS IN PART WITHOUT

SEPARATE WRITTEN OPINION. IRVING, P.J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.

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