Holcomb Dunbar - North Mississippi Attorneys

Holcomb Dunbar’s Legal Alliance Recognized as “Elite” in International Rankings

Chambers & Partners ranks TAGLaw among the top legal alliances in the world.

logo5Oxford, Miss (March 24, 2015) – Holcomb Dunbar’s international alliance, TAGLaw®, was recently ranked by Chambers & Partners as an “Elite” legal alliance in the publication’s annual Global rankings guide. As an independent member of TAGLaw, Holcomb Dunbar can provide its clients with access to high quality legal, accounting and financial representation around the world.

The Chambers & Partners’ rankings are based in part on the quality of TAGLaw’s independent law firm members and the service the firms provide to their clients. In addition to quality, Chambers & Partners considers the global reach of a legal alliance. TAGLaw’s international footprint encompasses 155 independent member firms that employ over 9,400 lawyers located in 328 offices throughout 87 countries. These metrics make TAGLaw one of the four largest law firm alliances in the world.

Chambers & Partners Guides have been ranking law firms and lawyers since 1990 and serve as an important resource for international in-house counsel. The guides now cover 185 jurisdictions throughout the world.

“We are honored to be part of TAGLaw, and proud of its “Elite” recognition” said Holcomb Dunbar partner, Jonathan Masters.

“We are very pleased at the recognition by Chambers and Partners as one of the world’s few ‘Elite’ legal alliances,” said Robert Sattin, President of TAGLaw and the TAG Alliances. “It is a testament to the quality of our firms throughout the world. When you combine 155 law firm members in TAGLaw with the affiliation of top accounting firms and services providers in TIAG and TAG-SP, our multidisciplinary strength is unparalleled.”

cyber bullyingTexting and Driving in Mississippi No More!

Mississippi’s Governor signed into law a ban on texting while driving in Mississippi. The new law prohibits drivers from writing, sending or reading a text, email or message or from accessing a social networking site from their hand-held device. There is an exception for messages regarding an emergency, traffic or weather alert, messages regarding the operation or navigation of the vehicle, or using a hands-free setting.

The law does not appear to directly prohibit surfing the web or otherwise using your mobile device while driving.

The law does not criminalize this behavior, instead treating it as a civil violation, imposing a $25 fine during its inaugural year, then $100 after that. There is a sunset provision for the law in 2018.

The new law takes effect July 1, 2015.

Holcomb Dunbar Client Wins Appeal

Mike Watts

Mike Watts

Brad Golmon

Brad Golmon

 

In a nine to zero opinion, the Mississippi Supreme Court reversed and remanded a case in favor of Holcomb Dunbar client, making new law in the process.

Holcomb Dunbar Attorneys Mike Watts and Brad Golmon were retained in an eminent domain action. At trial there was a stark variance between the “quick take” deposit, in the sum of $380,300.00, and the sum of the just compensation position taken by the Mississippi Transportation Commission in the amount of only $289,400.00. The landowner attempted to enter into evidence public records from the Court’s own file showing the sum of the “quick take” deposit and the notation of a fair market value offer in the larger amount. That attempt was denied by the Court. When the landowner subsequently attempted to ask Mississippi Transportations Commission’s expert witness about any prior appraisal or the time frame of the appraisal, MTC objected and the Trial Court sustained the objection, denying the jury the right to hear this potential impeachment.

On appeal, Holcomb Dunbar successfully argued on behalf of its client that the denial to cross examine the valuation expert about the conflicting values was a manifest injustice requiring reversal. The court agreed, “we find Coleman is correct in her assertion that the trial judge’s exclusion of the initial appraisal and cross-examination thereon was reversible error.

In addition, the Court held that pre-suit offers by the condemning party are fully admissable and are not subject to Rule 408’s application for offers of settlement.

Holcomb Dunbar AttorneysMississippi’s uninsured motorists law (UM) mandates coverage be provided in every policy of automobile insurance issued in the state, unless rejected in writing. Miss. Code Ann. § 83-11-101.

Mississippi law does not treat UM claims separately from underinsured motorist (UIM) claims. The statute merely defines an uninsured motorist to include the underinsured motorist.

Mississippi’s UM statute, incorporated into every policy, does not speak to accidents or negligence, but only provides that it covers “all sums which the insured is entitled to recover as damages . . . .” Miss. Code Ann. § 83-11-101. The Automobile Insurance Law and Practice treatise states that the purpose is to protect innocent insureds that are injured “as a result of the negligence of” financially irresponsible drivers. See also, Harthcock v. State Farm Mut. Auto. Ins. Co., 248 So. 2d 456 (Miss. 1971). While the UM statute does not clearly describe what constitutes an insured event, UM endorsements commonly contain a coverage provision which requires that the insured’s injuries or damages be caused by an “accident.”

Further, UM coverage must arise out of the “ownership, maintenance or use” of an uninsured vehicle. Spradlin v. State Farm Mut. Auto. Ins. Co., 650 So. 2d 1383 (Miss. 1995).

The UM statute does not mandate coverage for punitive damages that might be assessed against an uninsured motorist. State Farm Mut. Auto. Ins. Co. v. Daughdrill, 474 So. 2d 1048 (Miss. 1985). Policy language excluding punitive damages is permitted. However, if not excluded, it is covered.

Caveat: The statute does not prevent an insurer from providing greater coverage than required by the statutes. Thus, it is very important to always review both the statute and the policy. The UM statute is only the floor for coverage and the policy may grant additional benefits.

Uninsured Motor Vehicle Definition

Miss Code Ann. § 83-11-103 defines an “uninsured motor vehicle” to mean:

(1) a motor vehicle as to which there is no bodily injury liability insurance; or

(2) a motor vehicle with liability insurance, but the insurance company has legally denied coverage or is unable, because of being insolvent at the time of or becoming insolvent during the 12 months following the accident, to make payment with respect to the legal liability of its insured; or

(3) an insured motor vehicle, when the liability insurer of such vehicle has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist coverage; or

(4) a motor vehicle as to which there is no bond or deposit of cash or securities in lieu of such bodily injury and property damage liability insurance or other compliance with the state financial responsibility law, or where there is such bond or deposit of cash or securities, but such bond or deposit is less than the legal liability of the injuring party; or

(5) a motor vehicle of which the owner or operator is unknown; provided that in order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury to the insured is unknown, actual physical contact must have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured; or

(6) a motor vehicle owned or operated by a person protected by immunity under the Mississippi Tort Claims Act, if the insured has exhausted all administrative remedies.
No vehicle owned by the United States government and against which a claim may be made under the Federal Tort Claims Act, is considered uninsured.

Bodily Injury Definition

Miss. Code Ann. § 83-11-102 defines “bodily injury” simply by saying that it includes death resulting from such injury. This term has received little attention for the Mississippi Supreme Court. See Miss. Ins. Law and Prac. § 16:28 (citing E.E.O.C. v. Southern Pub. Co., Inc., 894 F.2d 785 (5th Cir. 1990) (noting the Mississippi Supreme Court has not defined bodily injury)).

Evaluating UIM Coverage (triggering the UIM claim)

In determining whether a tortfeasor is properly considered to be an underinsured motorist with regard to a particular insured, the limits of the tortfeasor’s liability should be compared to the stacked total of UM benefits applicable to the insured. In short, compare the liability limits to the stacked UM limits. Cossitt v. Federated Guar. Mut. Ins. Co., 541 So. 2d 436 (Miss. 1989). It does not matter that a particular insured does not recover the full liability limits to determine coverage for UM. The statute only requires comparing limits to limits. For a UM claim to be valid, for policies following the Mississippi statute, the UM limits (stacked) must exceed the liability limits. If they are equal or less than then liability limits, there is no UM claim. Again, the fact that an insured may not actually receive the limits does not matter. It is a limits to limits only analysis. If a UM claim is triggered via the limits-to-limits analysis, you then determine how much UM is available under other rules, discussed below. Miss. Code Ann. § 83-11-101 et seq.

Offsets and Exhaustion

Different from determining if UM coverage exits, the UM carrier has the right to offset liability coverage payments. If provided for in its policy, the UM insured’s carrier may only validly offset the amount of UM benefits available to the insured by the amount of liability benefits “actually received” by the UM insured. In this context, “actually received” has been defined as those amounts that are either tendered by the tortfeasor’s liability carrier or otherwise available to the UM insured. Fidelity & Guaranty Underwriters, Inc. v. Earnest, 585, 591-92 (Miss.1997). Therefore, if multiple claimants are involved and an insured does not receive the full limits available to him, the carrier can only offset those amounts received or that he could have actually received.

Exhaustion: An insured has the right to elect to pursue a claim directly against his UM carrier and forego the right to seek damages against the tortfeasor (and liability carrier). In such situations, the UM carrier does not have an offset, and must advance the total UM limits (if otherwise appropriate) and force the UM carrier to seek subrogation from the tortfeasor. In other words, it has been held that a UM insured is not required to exhaust the limits of the tortfeasor’s liability before he can collect against his UM carrier. Harthcock v. State Farm Mut. Auto. Ins. Co., 248 So. 2d 456, 461-62 (Miss. 1971). But see Robinette v. American Liberty Ins. Co., 720 F. Supp. 577 (S.D. Miss. 1989).

Priority: “Primary First” – It has been noted that the primary insurer has the right to offset its UM limits first. Dixie Ins. Co. v. State Farm Auto. Ins. Co., 614 So. 2d 918 (Miss. 1992). Check policy language to determine applicability. See Primary/Excess Issues.

An insurer may not offset MedPay payments to the insured against UM coverage limits. Prudential Prop. & Cas. Ins. Co. v. Mohrman, 828 F. Supp 432, 438 (S.D. Miss. 1993).

An insurer may not offset Workers Compensation payments to the insured against UM coverage limits. Nationwide Mut. Ins. Co. v. Garriga, 636 So. 2d 658 (Miss. 1994).

Workers Compensations liens do not apply to UM proceeds. Miss. Ins. Guaranty Assoc. v. Blakeney, 51 So. 23 208 (Miss. App. 2009). Accordingly, a carrier does not need to seek approval from a court or workers compensation commission in order to pay UM proceeds.

Written Rejection/Minimum Coverage

Unless the insured rejects the coverage in writing, the policy must provide minimum UM coverage of at least 25,000/50,000/25,000. See Miss. Code Ann. §§ 83-11-101(1) and (2); 63-15-3.

The statute explains that “any insured named in the policy” can reject the coverage in writing. Miss. Code Ann. § 83 11 103(2). A statutorily required waiver of UM coverage can be obtained only from a fully informed insured. In other words, the waiver must be knowing and intelligent, meaning that the insured was “reasonably knowledgeable and informed of the costs and benefits of such UM coverage prior to signing the waiver.” Owens v. Mississippi Farm Bureau Cas. Ins. Co., 910 So.2d 1065, 1074 (Miss. 2005). The burden is on the carrier to demonstrate that a waiver was knowingly and intelligently made. Honeycutt v. Coleman, No. 2010-CT-01470-SCT (Miss. May 30, 2013). This can be accomplished by proof that an appropriate explanation of the ramifications of rejecting UM coverage was provided to the insured, or that the insured was a sophisticated purchaser of insurance or was otherwise informed.

Effective July 1, 2014, the UM statute was amended to create a new UM Rejection Form that, if substantially complied with, will be binding on all the insureds and would operate as an effective waiver of coverage.

There is no requirement of a written rejection of UM coverage above the minimum amount, and there is no duty on an agent to provide an explanation of such optional coverages. Owens v. Mississippi Farm Bureau Cas. Ins. Co., 910 So.2d 1065, 1074 (Miss. 2005).

The statute does not require that the written rejection be maintained. In other words, the mere fact that a carrier cannot produce the written rejection does not automatically create a violation of the statute. The carrier is free to provide affidavits or other circumstantial evidence that an insured at one time had signed a written rejection of coverage, and it is up to the insured to present proof to the contrary. Travelers v. Stokes, 838 So. 2d 270 (Miss. 2003).

Election of Remedies

If insured sued another tortfeasor, who was not an uninsured motorist, and obtained judgment for less than he sought, he cannot then claim that a different tortfeasor, who is uninsured, was actually the cause of his injuries. He is precluded from pursuing a UM claim. Carson v. Colonial Ins. Co., 724 F. Supp 1225 (S.D. Miss. 1989).

Exclusions

Any exclusions that limit or reduce the available UM benefits below the minimum statutory amount are likely to be improper.

“Named driver” and “owned vehicle” exclusions have been found to be in conflict with the UM Act and are void and unenforceable. Lowery v. State Farm Mut. Auto. Ins. Co., 285 So. 2d 767 (Miss. 1973) (owned vehicle); Atlanta Cas. Co. v. Payne, 603 So. 2d 343, 348 (Miss. 1992) (named driver).

The exclusivity provision in the Worker’s Compensation statute completely bars an employee from recovering UM benefits from his personal insurer when injured by a co-employee. Wachtler v. State Farm Mut. Auto. Ins. Co., 835 So. 2d 23, 28 (Miss. 2003).

Limiting Stacking – Fleet Policies

Since 2002, Mississippi has allowed a multiple-vehicle policy to limit the stacking available to the vehicles insured therein. It allowed a single fleet policy (which was a policy insuring 10 or more vehicles) to provide for a Non-Stacking, Single Limit policy, as long as that policy provided for at least 10 times the minimum limits. See § 83-11-102. In other words, up until July 1, 2013, Mississippi allowed the non-stacking of UM coverage if a single policy with multiple vehicles provided for coverage at least 250/500/250.

Effective July 1, 2013, the statute was amended to lower the 10 vehicle multiple to 4. See § 83-11-102. Carriers are now allowed to issue a single limit, non-stacking policy covering multiple vehicles as long as it provides coverage of 100/200/100. There is an Insurance Department form carriers can use to disclose the availability of this non-stacking single limit and for an insured to make selections of coverages.

Property Damage Deductible

The UMPD deductible is $200. Miss. Code Ann. § 83-11-101.

Stacking

UM stacking is permitted for “Class I” insureds (named insureds and resident relatives), generally, and more limited for “Class II” (permissive drivers and guest passengers). Meyers v. American States Ins. Co., 914 So. 2d 669, 674 (Miss. 2005). Class II insureds can only stack the accident vehicles’ coverage with any of his or her own personal coverage (i.e. other coverage he or she qualifies as an “insured” on). A Class II insured does not have the right to stack an employer’s uninsured motorist coverage unless policy language provides otherwise. Deaton v. Mississippi Farm Bureau Cas. Ins. Co., 994 So. 164, 167 (Miss. 2008). Anti-stacking provisions in policies are void.

Hit and Run

A UM policy may include the requirement that actual “physical contact” occur between the insured and an unidentified motor vehicle.

An object that is simply thrown or tossed from one vehicle and hits the insured’s vehicle has been held not to meet the physical contact requirement as the insured vehicle was neither hit by the unknown vehicle nor was any object struck by that vehicle propelling it into the insured’s vehicle. See Aetna Cas. & Sur. Co. v. Head, 240 So. 2d 280 (Miss. 1970) (finding no physical contact in case involving a soft drink bottle being tossed by unknown operator into windshield of insured).

In many cases, however, the physical contact requirement can be met by indirect contact; that is, if the unknown vehicle is said to have contacted the insured through a medium of an intervening vehicle or object. For example, in Southern Farm Bureau Cas. Ins. Co. v. Brewer, the requirement was met when the unknown vehicle struck an object in the road thereby causing the object to be propelled into the insured vehicle. Southern Farm Bureau Cas. Ins. Co. v. Brewer, 507 So. 2d 369 (Miss. 1987). There, the Court emphasized that the injury-causing impact must have a “complete, proximate, direct and timely relationship with the first impact between the first hit-and-run vehicle and the intermediate [object]. In effect, the impact must be the result of an unbroken chain of events with a clearly definable beginning and ending, occurring in a continuous sequence.” Southern Farm Bureau Cas. Ins. Co. v. Brewer, 507 So. 2d 369 (Miss. 1987).

However, the ruling in Brewer was based on Farm Bureau’s policy language at the time. The Court stated that had the insurance company intended that the provision apply only where this is direct, as opposed to indirect physical contact, between the hit-and-run vehicle and the vehicle of the insured, it should have so provided in unmistakably clear language. Since the Farm Bureau policy was cable of two meaning, the construction most favorable to the insured was applied. Southern Farm Bureau Casualty Ins. Co. v. Brewer, 507 So. 2d 369 (Miss. 1987). Thus, in fact scenarios like Brewer, it appears that the policy language controls when deciding whether to exclude damages for indirect contract by debris propelled from a hit and run vehicle.
Mississippi Law Amended to Allow Full Coverage Exclusions

Mississippi’s Legislature Addresses Coverage Exclusion

Holcomb Dunbar AttorneysUPDATE:  Mississippi Governor approved and signed this bill into law earlier this week.  It will go into effect on July 1, 2015.

Last February, the Mississippi Supreme Court held that the named-driver exclusion is invalid for purposes of providing the statutory minimum limits. See that opinion here: LYONS v. DIRECT GENERAL INSURANCE COMPANY OF MISSISSIPPI (Miss. February 13, 2014).

During this year’s legislative session, however, the Mississippi legislature addressed this ruling by amending the Motor Vehicle Safety Responsibility law to clarify that the law was indeed intended to allow exclusions to apply even to the mandatory minimum coverage limits.

Although the named driver exclusion varies from state to state or even policy to policy, it is typically a clause in your automobile policy that excludes all coverage to a specially named driver that has access to the insured vehicle. These are fairly common to today’s policies.

At the same time, however, Mississippi law requires liability insurance at least to certain minimum limits for every motor vehicle operated within the state.

In Lyons, the Court held that because of Mississippi’s mandatory liability insurance statute, which makes no mention of any exclusions, “named-driver” exclusions create a conflict with the statute and are declared invalid up to the minimum limits. Accordingly, the named-driver exclusion has no effect, at least up to the mandatory minimum limits.

The Court held that “[o]ur statutes create an absolute requirement for liability insurance up to the statutory minimum.” Judge Dickinson, writing for the majority, explained that the mandatory liability insurance requirements applies to vehicles, not owners or operators. In other words, no matter who is driving the car, the car must at all times be covered for at least minimum limits. In very broad language, the Court commented that “automobile insurers are not fee to escape the statutorily required minimum-liability coverage simply by inserting an exclusion of their choice–no matter how well-reasoned– into their policies.”

Moreover, the Court recognized that the logic of this ruling could extend to all exclusions that reduce the available coverage below the minimum limits. However, the Court simply said the issue was not before them, while conceding “it does showcase a problem that suggests additional analysis.”

Most recently, both Houses of the Mississippi Legislature passed a bill that permits all such exclusions. The bill adds the following language to the Motor Vehicle Safety-Responsibility Law, “[l]iability insurance required under this paragraph (j) may contain exclusions and limitations on coverage as long as the exclusions and limitations language or form has been filed with and approved by the Commissioner of Insurance.”  It is expected that the Governor will sign the bill and, if so, it would go into effect July 1, 2015.

Here’s the Full Bill:

HOUSE BILL NO. 346
(As Passed the House)

AN ACT TO AMEND SECTION 63-15-3, MISSISSIPPI CODE OF 1972, TO 1 PROVIDE THAT LIABILITY INSURANCE REQUIRED UNDER THE MISSISSIPPI 2 MOTOR VEHICLE SAFETY-RESPONSIBILITY LAW MAY CONTAIN EXCLUSIONS AND 3 LIMITATIONS ON COVERAGE AS LONG AS THE EXCLUSIONS AND LIMITATIONS 4 LANGUAGE OR FORM HAS BEEN FILED WITH AND APPROVED BY THE 5 COMMISSIONER OF INSURANCE; AND FOR RELATED PURPOSES. 6
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI: 7

SECTION 1. Section 63-15-3, Mississippi Code of 1972, is amended as follows:
63-15-3. The following words and phrases, when used in this 10 chapter, shall, for the purposes of this chapter, have the 11 meanings respectively ascribed to them in this section, except in those instances where the context clearly indicates a different meaning:
(a) “Highway” means the entire width between property lines of any road, street, way, thoroughfare or bridge in the State of Mississippi not privately owned or controlled, when any part thereof is open to the public for vehicular traffic and over 18 which the state has legislative jurisdiction under its police 19 power.

(b) “Judgment” means any judgment which shall have become final by expiration, without appeal, of the time within which an appeal might have been perfected, or by final affirmation on appeal, rendered by a court of competent jurisdiction of any state or of the United States, upon a cause of action arising out of the ownership, maintenance or use of any motor vehicle, for damages, including damages for care and loss of services, because of bodily injury to or death of any person, or for damages because of injury to or destruction of property, including the loss of use thereof, or upon a cause of action on an agreement of settlement 30 for such damages.
(c) “Motor vehicle” means every self-propelled vehicle (other than traction engines, road rollers and graders, tractor cranes, power shovels, well drillers, implements of husbandry and electric personal assistive mobility device as defined in Section 63-3-103) which is designed for use upon a highway, including trailers and semitrailers designed for use with such vehicles, and every vehicle which is propelled by electric power obtained from overhead wires but not operated upon rails.

For purposes of this definition, “implements of husbandry” shall not include trucks, pickup trucks, trailers and semitrailers 41 designed for use with such trucks and pickup trucks.
(d) “License” means any driver’s, operator’s, commercial operator’s, or chauffeur’s license, temporary instruction permit or temporary license, or restricted license, issued under the laws of the State of Mississippi pertaining to 46 the licensing of persons to operate motor vehicles.
(e) “Nonresident” means every person who is not a resident of the State of Mississippi.

(f) “Nonresident’s operating privilege” means the privilege conferred upon a nonresident by the laws of Mississippi pertaining to the operation by him of a motor vehicle, or the use of a motor vehicle owned by him, in the State of Mississippi.

(g) “Operator” means every person who is in actual physical control of a motor vehicle.

(h) “Owner” means a person who holds the legal title of a motor vehicle; in the event a motor vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner for the purpose of this chapter.

(i) “Person” means every natural person, firm, copartnership, association or corporation.

(j) “Proof of financial responsibility” means proof of ability to respond in damages for liability, on account of accidents occurring subsequent to the effective date of said proof, arising out of the ownership, maintenance or use of a motor vehicle, in the amount of Twenty-five Thousand Dollars ($25,000.00) because of bodily injury to or death of one (1) 72 person in any one (1) accident, and subject to said limit for one (1) person, in the amount of Fifty Thousand Dollars ($50,000.00) because of bodily injury to or death of two (2) or more persons in any one (1) accident, and in the amount of Twenty-five Thousand Dollars ($25,000.00) because of injury to or destruction of property of others in any one (1) accident. Liability insurance required under this paragraph (j) may contain exclusions and limitations on coverage as long as the exclusions and limitations language or form has been filed with and approved by the 81 Commissioner of Insurance.

(k) “Registration” means a certificate or certificates and registration plates issued under the laws of this state 84 pertaining to the registration of motor vehicles.

(l) “Department” means the Department of Public Safety of the State of Mississippi, acting directly or through its authorized officers and agents, except in such sections of this chapter in which some other state department is specifically named.

(m) “State” means any state, territory or possession of the United States, the District of Columbia, or any province of the Dominion of Canada.

SECTION 2. This act shall take effect and be in force from 94 and after July 1, 2015.

Russ McNees Named Partner

Russ McNees

Russ McNees

Edward “Russ” McNees named Partner in the Holcomb Dunbar law firm. Mr. McNees has been named to the to Mid-South Super Lawyers “Rising Stars” list for 3 consecutive years, and named to The National Trial Lawyers Top 40 Under 40. He is a member of Mississippi Defense Lawyers Association, Defense Research Institute, Lafayette County Bar Association, and the Tri-County Bar Association. Prior to joining the firm, McNees served as law clerk to Judge W. Swan Yerger, Hinds County Circuit Court. Mr. McNees focuses his practice on insurance defense servicing clients across Mississippi.

Holcomb Dunbar specializes in litigation, including insurance defense, product liability, medical malpractice, divorce, complex bankruptcies, and white collar crime. The firm was also named as a “Go-To” Law Firm in litigation by Corporate Counsel magazine. Over the years, the firm’s attorneys have served as officers and board members in the American Bar Association, Mississippi Defense Lawyers’ Association, and the Lafayette County Bar Association. More recently, several of its attorneys have been recognized as Fellows in the Mississippi Bar Foundation, American Bar Association, and the American College of Trial Attorneys, and named in the Mid South Super Lawyers publication as “Super Lawyers” and “Rising Stars” rolls. In addition, the firm’s attorneys are frequently asked to speak and write on a number of topics to other attorneys and industry leaders. Holcomb Dunbar is the Mississippi member of TAGLaw, an invitation-only network of 140 law firms located in more than 100 countries.

Holcomb Dunbar is A/V rated by Martindale Hubbell, offering services in general and commercial litigation, insurance defense and coverage, white collar criminal, complex litigation, real estate transactions, contract, mass-tort defense, mediation, debtor-creditor matters, and divorce.

Mississippi’s Use of the Intoxilyzer 8000 Breath Test and Driving Under the Influence (DUI)

Practicing DUI law, we receive all kinds of questions regarding the evidence that could potentially be used against someone in a court of law. Many people’s questions tend to focus on the accuracy and the vulnerabilities of the Intoxilyzer 8000- the device used in Mississippi to read blood alcohol content (BAC). The Intoxilyzer 8000 is not to be confused with the portable breath test given roadside. Instead, this $8,000.00 machine is typically used once someone arrives at the station, and the accuracy, or inaccuracy, of this machine could greatly influence the outcome of a DUI case. The Intoxilyzer 8000 is not used in every state, and has come under serious scrutiny in Ohio and Florida for insufficient accuracy. Many people believe such devices to be infallible, and this misplaced belief could lead to much too great a weight being placed on the readings.

To better understand the breath test, it is important to first understand what processes are underway. The indigestible alcohol we drink is known as ethyl alcohol or ethanol, which is a central nervous system depressant, meaning it does not affect a person until it has entered the central nervous system through the blood (the brain, brain stem, and spinal cord). In order to get into the blood from the stomach, alcohol must undergo the process of absorption, which can be influenced by various factors. Perhaps the greatest influence on absorption is the presence of food contents in the stomach, and drinking on an empty stomach can lead to extremely rapid absorption rates. In fact, studies have shown that the absorptive stage can last anywhere from 12-166 minutes. Since most drivers take a breath test within 120 minutes of their last drink, their actual BAC will likely be overestimated by a breath test.
Once the alcohol moves from the stomach into the blood, it will be distributed throughout the body. Alcohol has an affinity for water, and the blood will carry the alcohol to the various tissues and organs of the body, depositing the alcohol in them in proportion to their water content. Our brains have a high water content, so the brain tissue receives a substantial share of the distributed alcohol. Also of note, the typical female’s body contains much less water than the typical male’s. A Swedish alcohol researcher determined that the typical male body is about 68% water, while the typical female body is only about 55%. This note is important, because if a woman and a man who weighed exactly the same drank exactly the same amount of alcohol, her BAC would climb significantly higher than his.

As soon as alcohol enters the body, the body system starts trying to get rid of it. Some of the alcohol will be directly expelled from the body chemically unchanged. For example, some alcohol will leave the body in the breath, in the urine, in sweat, and in tears. However, only about 2-10% will be directly eliminated. Most of the alcohol a person drinks is eliminated by metabolism in the liver through an enzyme known as alcohol dehydrogenase. On average, a person’s BAC will drop by about 0.015% per hour. Put differently, if someone drank to the BAC equivalent of 0.08%, it would take 6 hours to return to a BAC of 0.00%.

A person with a BAC greater than 0.08% is considered impaired for the purposes of driving under the influence. The Intoxilyzer 8000 only requires a precision of two readings within 0.02% of one another, which means for a reading of 0.08%, an acceptable error is 25% of the total! Reports have also begun surfacing that call into question the programming of the software, which can at times provide a BAC with a report that no air was blown into the machine (0.0L) or, conversely, provide a BAC with a report under the required (1.1L) without providing the programmed “volume not met” warning.

Breath testing further presumes that all people have an expired breath temperature of 34 degrees C, and for each degree above this number, the results will register higher than normal. Someone suffering from fever or hot flashes will record an inappropriately high BAC reading on a breath test. Along with expired breath temperature, the Intoxilyzer 8000 and similar breath tests can provide incorrect readings for various other factors, including the above mentioned alcohol absorption rates, residual mouth alcohol, low-carb diets, diabetic reactions, radio interference, acid reflux, regurgitation or burping, and dentures, to name a few.

As you can see, the Intoxilyzer 8000 and similar breath tests are complex and rely on various factors for their reliability. Many jurisdictions are beginning to call into doubt the precision of such machines, and no one should accept the results as conclusory.

If you have been charged with driving under the influence, or have further questions about anything discussed above, do not hesitate to contact us at 662-234-8775.

Santa Card

Doug Hollowell Attorney

Doug Hollowell

Mississippi DUI and the Sufficiency of Evidence

By Doug Hollowell:

The Forrest County Circuit Court recently touched on an interesting area of Mississippi DUI law- the common law DUI. In the case of Moore v. State, No. 2013-KA-00787-SCT, the Court found sufficient evidence to convict Charles Moore of felony driving under the influence (DUI), third offense, even though there was neither: a) a record of Moore’s blood alcohol content, nor b)proof that the breath intoxilyzer machine at the police station was working properly.

To many this may seem inappropriate. Mississippi’s common law DUI, however, allows evidence of slurred speech, bloodshot eyes, or erratic driving as sufficient means to convict a defendant under section 63-11-30. The Court further noted the State’s unrefuted evidence that the defendant drank a “swallow” of vodka and one-fourth a beer. This last note is perhaps the most important to those who are pulled over during a DUI investigation. Your admission of prior drinks can and likely will be used against you during your trial as evidence of driving under the influence.

If you have questions about Mississippi’s DUI laws, or if you have been charged with a DUI, do not hesitate to contact Doug Hollowell and Holcomb Dunbar at 662-234-8775 and dhollowell@holcombdunbar.com.

Jim Greenlee

Holcomb Dunbar Attorney Jim Greenlee

In November 1919, President Wilson proclaimed November 11 as the first commemoration of Armistice Day with the following words: “To us in America, the reflections of Armistice Day will be filled with solemn pride in the heroism of those who died in the country’s service and with gratitude for the victory, both because of the thing from which it has freed us and because of the opportunity it has given America to show her sympathy with peace and justice in the councils of the nations…”

The original concept for the celebration was for a day observed with parades and public meetings and a brief suspension of business beginning at 11:00 a.m.

The United States Congress officially recognized the end of World War I when it passed a concurrent resolution on June 4, 1926, with these words:

Whereas the 11th of November 1918, marked the cessation of the most destructive, sanguinary, and far reaching war in human annals and the resumption by the people of the United States of peaceful relations with other nations, which we hope may never again be severed, and

Whereas it is fitting that the recurring anniversary of this date should be commemorated with thanksgiving and prayer and exercises designed to perpetuate peace through good will and mutual understanding between nations; and

Whereas the legislatures of twenty-seven of our States have already declared November 11 to be a legal holiday: Therefore be it Resolved by the Senate (the House of Representatives concurring), that the President of the United States is requested to issue a proclamation calling upon the officials to display the flag of the United States on all Government buildings on November 11 and inviting the people of the United States to observe the day in schools and churches, or other suitable places, with appropriate ceremonies of friendly relations with all other peoples.

An Act (52 Stat. 351; 5 U. S. Code, Sec. 87a) approved May 13, 1938, made the 11th of November in each year a legal holiday—a day to be dedicated to the cause of world peace and to be thereafter celebrated and known as “Armistice Day.” Armistice Day was primarily a day set aside to honor veterans of World War I, but in 1954, after World War II had required the greatest mobilization of soldiers, sailors, Marines and airmen in the Nation’s history; after American forces had fought aggression in Korea, the 83rd Congress, at the urging of the veterans service organizations, amended the Act of 1938 by striking out the word “Armistice” and inserting in its place the word “Veterans.” With the approval of this legislation (Public Law 380) on June 1, 1954, November 11th became a day to honor American veterans of all wars.

Later that same year, on October 8th, President Dwight D. Eisenhower issued the first Veterans Day Proclamation which stated: “In order to insure proper and widespread observance of this anniversary, all veterans, all veterans’ organizations, and the entire citizenry will wish to join hands in the common purpose.”  So,  join hands and thank a veteran!