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Legal Updates from Holcomb Dunbar Attorneys

Do I get my Attorney’s Fees Back?

“Do I get my attorney’s fees back?”  This is often one of the first questions I get from a new client who’s been sued.  And this is understandable.  After all, my new client doesn’t believe she should’ve been sued, and is now having to hire an attorney.

Probably Not

As difficult as the answer is, it is almost always probably not.  Here’s why.  There is a bedrock principle known as the American rule.  This rule provides that each litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise.  The theory is that having a contrary rule – loser pays – would deter and limit access to our courts and ultimtately from receiving justice.  This rule is not without its critics, but remains a deeply rooted concept in the U.S.

As a result, many of the general negligence actions such as car accidents and slip and fall injuries do not allow a party to recover attorney fees from the other side – win or lose. There are however a few exceptions.

The most common exception involves a suit over a contract which specifically provides for recovery of attorney fees.  For example, loan documents from a bank almost always have such language.  If you are sued for failing to repay a loan, the bank will also seek recovery of its attorney’s fees under to the loan contact.

There are statutes that also provide for recovery of attorney fees. Under Mississippi law, some of those include some shareholder derivative actions; open account collections provided certain prerequisites are met; Mississippi Uniform Trade Secrets Act; Unsolicited Residential Telephonic Sales Call Act (a/k/a “The no-call list”). At the federal level there are similar statutes such as those governing antitrust actions, civil rights actions, class actions, copyright and patent infringement matters, Freedom of Information Act suits and Lemon law matters.

Sanctions

In addition, most jurisdictions have statutes and rules allowing for recovery of attorneys’ fees for the filing of frivolous or baseless claims. In my experience, however, the other side never agrees that the action is in fact frivolous.

Under Mississippi’s Litigation Accountability Act a frivolous action is one “without substantial justification,” or “groundless in fact or in law, or vexatious, as determined by the court.”

Similarly, nearly every jurisdiction has procedural rules that may allow sanctions.  These can be imposed when an attorney or party files papers with the court that were submitted solely to harass the other side, unnecessarilly delay the action, or needlessly increase the cost of litigation.

In Mississippi, the primary rule is Rule 11 of the Mississippi Rules of Civil Procedure.  Like the Litigation Accountability Act, the question again arises of what exactly makes a claim frivolous. To determine this Mississippi courts look to see if there was any hope of success.  Again, it’s a bit of a nebulous concept, and certainly the party asserting the claim will argue that there was indeed some hope that he might succeed.

Because of these difficult standards and the court’s inherent dislike of limiting litigants access to courts, sanctions of this type are rare.

Recently, the United States Supreme Court in Goodyear v. Haeger, reviewed sanctions awarded during an action for particularly egregious discovery violations.  The court unanimously ruled that a judge must determine which fees and costs would not have been incurred “but for” the misconduct.  To award more would be a punitive award which requires additional due process similar to a criminal defendant under the Constitution.  Thus, the Court can only assess “fees the innocent party incurred solely because” of that misconduct.

This is yet another example of the Courts timid approach to sanctions and illustrates its general dislike of awarding them.  And even when they may be justified, that should be carefully reviewed and limited to fit the actual costs or harm incurred.

I’ve Been Sued – Now What?

 

You’ve Been Served with a Complaint

Complaint

First, don’t panic.  Complaints are filed every day.  And there are few barriers to filing one.  Anyone can craft a complaint and file it.  What matters now, is how you respond.

A civil action will begin with a Complaint or sometimes a Petition or Declaration.  Those documents are typically served by a process server or deputy sheriff.  The summons will provide a date to respond, or sometimes a specific court date for you to appear in court.  Don’t ignore these dates.

Answer the Complaint

Complaints must be “answered” within a specific time which is governed by the court’s rules.  By answering you can assert your side of the allegations and there may very well be defenses that can cause the lawsuit to be dismissed at this stage. In addition, there may be a related counterclaim that you may be required to assert at this stage or waive that opportunity.

Don’t Default

Failing to timely answer may cause a default judgment to be entered.  This effectively means you lose before ever defending yourself.   For example, you receive a complaint claiming you owe $10,000.  You have undeniable proof that you paid the entire sum.  A default judgment would likely be entered for the entire $10,000 and you could be liable to pay the entire amount again.

Discover the Facts

 After the complaint is served and the answer is filed, in most cases, “discovery” begins.  At this stage, the parties gather as much information about the allegations and defenses as possible. Here, each side serves written questions and requests copies of any supporting documents from the other side.  In addition, the parties may depose one another as well as witnesses.  A deposition is an informal questioning session, somewhat like what you might see in court that is transcribed by a court reporter.  However, the evidentiary rules are usually very lax to allow the parties to fully explore the testimony and allegations that may ultimately be offered at trial.  However, not everything learned in the discovery phase is admissible at trial.

Settlement and Mediation

 Around 95% of civil lawsuits settle before trial.  After the completing discovery, the parties and their attorneys often have a good idea the appropriate result.  Usually the parties will want to discuss settlement.  However, even with the discovery it is common to seek the help of a neutral mediator to assist the parties to reach a resolution. A mediation is a meeting held with all the parties in a single location.  The mediator will shuffle between the parties attempting to broker settlement.

Summary Judgment

At some point between completing discovery and trial, one or more of the parties may seek to dismiss the case by a motion for summary judgment. Such a motion is an effort by a party to show that based on the discovery that that a party does not have enough facts to support one or more of their claims at a trial.  If the court agrees with the motion the case will be dismissed or at least some of the claims or defenses may be dismissed.  This is called a partial summary judgment and when this happens, only the surviving claims will proceed to trial.

Trial

The trial is the part of a lawsuit that most people are familiar with from movies and television.  Though they are rarely as exciting as movies portray.  Trials can be either before single judge or jury.  It depends on the type of case and the court where the case is filed.  In either case, the evidentiary rules will apply and all testimony and evidence must meet these standards before presented at trial. This can be frustrating at times as some evidence may never be admitted at trial that was freely discussed during discovery.  And, of course, at the end of the trial the judge or jury will decide the issues and a judgment will be entered.

Appeal

Once a judgment is entered, the parties may appeal seeking an appellant court’s review.  The typical appeal seeks a review of how a particular law was applied to the facts presented at trial.  However, changing the ruling on appeal is rare.  Moreover, an appeal can take several years before the issues or finally reviewed.

 

If you’ve been served with a complaint, consult with an attorney as soon as you can.  Lawsuits are expensive and taxing on the persons involved.  Addressing the issues directly and early can lead to substantial savings for all involved.

Holcomb Dunbar Remembers 9/11

Holcomb Dunbar Remembers 9-11

Today marks the 16th anniversary of the 9-11 terrorist attacks.    Below are the nearly 3000 names of those who lost their lives that day.

Below are the names as they appear inscribed in bronze on the World Trade Center Memorial.  Every name can be located by the panel on which it is inscribed. A panel address is comprised of the letter N or S (N for north pool, S for south pool) followed by a number 1 through 76

A

Gordon M. Aamoth, Jr. S-49
Edelmiro Abad S-40
Marie Rose Abad S-34
Andrew Anthony Abate N-57
Vincent Paul Abate N-57
Laurence Christopher Abel N-32
Alona Abraham S-4
William F. Abrahamson N-7
Richard Anthony Aceto N-4
Heinrich Bernhard Ackermann S-55
Paul Acquaviva N-37
Christian Adams S-68
Donald LaRoy Adams N-55
Patrick Adams S-45
Shannon Lewis Adams N-49
Stephen George Adams N-70
Ignatius Udo Adanga N-71
Christy A. Addamo N-8
Terence Edward Adderley, Jr. N-58
Sophia B. Addo N-68
Lee Adler N-37
Daniel Thomas Afflitto N-25
Emmanuel Akwasi Afuakwah N-71
Alok Agarwal N-36
Mukul Kumar Agarwala S-43
Joseph Agnello S-11
David Scott Agnes N-47
Joao Alberto da Fonseca Aguiar, Jr. S-34
Brian G. Ahearn S-13
Jeremiah Joseph Ahern S-47
Joanne Marie Ahladiotis N-37
Shabbir Ahmed N-70
Terrance Andre Aiken N-17
Godwin O. Ajala S-65
Trudi M. Alagero N-5
Andrew Alameno N-52
Margaret Ann Alario S-63
Gary M. Albero S-63
Jon Leslie Albert N-7
Peter Craig Alderman N-21
Jacquelyn Delaine Aldridge- Frederick N-10
David D. Alger N-59
Ernest Alikakos S-47
Edward L. Allegretto N-40
Eric Allen S-21
Joseph Ryan Allen N-41
Richard Dennis Allen S-21
Richard L. Allen N-19
Christopher E. Allingham N-42
Anna S. W. Allison N-2
Janet Marie Alonso N-5
Anthony Alvarado N-23
Antonio Javier Alvarez N-70
Victoria Alvarez-Brito N-8
Telmo E. Alvear N-71
Cesar Amoranto Alviar N-16
Tariq Amanullah S-42
Angelo Amaranto N-64
James M. Amato S-7
Joseph Amatuccio S-24
Paul W. Ambrose S-70
Christopher Charles Amoroso S-28
Craig Scott Amundson S-74
Kazuhiro Anai N-63
Calixto Anaya, Jr. S-21
Joseph P. Anchundia S-52
Kermit Charles Anderson N-9
Yvette Constance Anderson S-48
John Jack Andreacchio S-44
Michael Rourke Andrews N-53
Jean Ann Andrucki N-66
Siew-Nya Ang N-5
Joseph Angelini, Sr. S-9
Joseph John Angelini, Jr. S-9
David Lawrence Angell N-1
Mary Lynn Edwards Angell N-1
Laura Angilletta N-32
Doreen J. Angrisani N-15
Lorraine Antigua N-53
Seima David Aoyama N-2
Peter Paul Apollo N-26
Faustino Apostol, Jr. S-6
Frank Thomas Aquilino N-39
Patrick Michael Aranyos S-30
David Gregory Arce S-13
Michael George Arczynski S-54
Louis Arena S-5
Barbara Jean Arestegui N-74
Adam P. Arias S-31
Michael J. Armstrong N-43
Jack Charles Aron N-4
Joshua Todd Aron N-42
Richard Avery Aronow N-66
Myra Joy Aronson N-74
Japhet Jesse Aryee S-48
Carl Francis Asaro S-10
Michael A. Asciak N-63
Michael Edward Asher N-36
Janice Marie Ashley N-58
Thomas J. Ashton N-19
Manuel O. Asitimbay N-68
Gregg A. Atlas S-5
Gerald Thomas Atwood S-11
James Audiffred N-64
Louis F. Aversano, Jr. S-58
Ezra Aviles N-65
Sandy Ayala N-70

B

Arlene T. Babakitis N-66
Eustace R. Bacchus N-71
John J. Badagliacca N-52
Jane Ellen Baeszler N-43
Robert J. Baierwalter S-63
Andrew J. Bailey N-12
Brett T. Bailey S-31
Garnet Ace Bailey S-3
Tatyana Bakalinskaya N-17
Michael S. Baksh N-16
Sharon M. Balkcom N-7
Michael Andrew Bane N-14
Katherine Bantis N-12
Gerard Baptiste S-14
Walter Baran S-40
Gerard A. Barbara S-18
Paul Vincent Barbaro N-36
James William Barbella S-26
Victor Daniel Barbosa S-37
Christine Johnna Barbuto N-1
Colleen Ann Barkow N-32
David Michael Barkway N-42
Matthew Barnes S-21
Melissa Rose Barnes S-72
Sheila Patricia Barnes S-58
Evan Jay Baron N-60
Renee Barrett-Arjune N-48
Arthur Thaddeus Barry S-20
Diane G. Barry S-56
Maurice Vincent Barry S-28
Scott D. Bart N-9
Carlton W. Bartels N-50
Guy Barzvi N-48
Inna B. Basina N-48
Alysia Christine Burton Basmajian N-47
Kenneth William Basnicki N-21
Steven Joseph Bates S-6
Paul James Battaglia N-4
W. David Bauer N-37
Ivhan Luis Carpio Bautista N-69
Marlyn Capito Bautista N-6
Mark Lawrence Bavis S-3
Jasper Baxter S-45
Lorraine G. Bay S-67
Michele Beale N-20
Todd M. Beamer S-68
Paul Frederick Beatini S-63
Jane S. Beatty N-9
Alan Anthony Beaven S-67
Lawrence Ira Beck N-31
Manette Marie Beckles S-42
Carl John Bedigian S-21
Michael Ernest Beekman S-48
Maria A. Behr N-27
Max J. Beilke S-1
Yelena Belilovsky N-61
Nina Patrice Bell N-8
Debbie S. Bellows N-37
Stephen Elliot Belson S-17
Paul M. Benedetti S-62
Denise Lenore Benedetto S-60
Bryan Craig Bennett N-55
Eric L. Bennett N-65
Oliver Bennett N-20
Margaret L. Benson N-66
Dominick J. Berardi N-31
James Patrick Berger S-56
Steven Howard Berger S-48
John P. Bergin S-6
Alvin Bergsohn N-25
Daniel David Bergstein N-66
Graham Andrew Berkeley S-3
Michael J. Berkeley N-67
Donna M. Bernaerts N-16
David W. Bernard S-66
William H. Bernstein N-56
David M. Berray N-20
David Shelby Berry S-36
Joseph John Berry S-36
William Reed Bethke N-10
Yeneneh Betru S-69
Timothy D. Betterly N-41
Carolyn Mayer Beug N-1
Edward Frank Beyea N-65
Paul Michael Beyer S-14
Anil Tahilram Bharvaney N-22
Bella J. Bhukhan N-49
Shimmy D. Biegeleisen S-42
Peter Alexander Bielfeld S-18
William G. Biggart S-66
Brian Eugene Bilcher S-14
Mark Bingham S-67
Carl Vincent Bini S-6
Gary Eugene Bird N-13
Joshua David Birnbaum N-42
George John Bishop S-59
Kris Romeo Bishundat S-72
Jeffrey Donald Bittner S-35
Albert Balewa Blackman, Jr. N-48
Christopher Joseph Blackwell S-15
Carrie Rosetta Blagburn S-1
Susan Leigh Blair S-56
Harry Blanding, Jr. S-62
Janice Lee Blaney N-16
Craig Michael Blass N-28
Rita Blau S-41
Richard Middleton Blood, Jr. S-62
Michael Andrew Boccardi N-59
John Paul Bocchi N-46
Michael L. Bocchino S-19
Susan M. Bochino S-62
Deora Frances Bodley S-68
Bruce Douglas Boehm N-41
Mary Catherine Murphy Boffa N-3
Nicholas Andrew Bogdan N-13
Darren Christopher Bohan S-56
Lawrence Francis Boisseau S-23
Vincent M. Boland, Jr. N-10
Touri Hamzavi Bolourchi S-4
Alan Bondarenko S-65
Andre Bonheur, Jr. N-58
Colin Arthur Bonnett N-14
Frank J. Bonomo S-12
Yvonne Lucia Bonomo N-18
Sean Booker, Sr. N-19
Kelly Ann Booms N-1
Canfield D. Boone S-74
Mary Jane Booth S-69
Sherry Ann Bordeaux S-42
Krystine Bordenabe S-34
Jerry J. Borg S-66
Martin Michael Boryczewski N-26
Richard Edward Bosco N-58
Klaus Bothe S-3
Carol Marie Bouchard N-75
J. Howard Boulton S-31
Francisco Eligio Bourdier S-38
Thomas Harold Bowden, Jr. N-26
Donna M. Bowen S-75
Kimberly S. Bowers N-36
Veronique Nicole Bowers N-70
Larry Bowman S-65
Shawn Edward Bowman, Jr. N-49
Kevin L. Bowser N-16
Gary R. Box S-6
Gennady Boyarsky N-18
Pamela Boyce N-58
Allen P. Boyle S-73
Michael Boyle S-13
Alfred J. Braca N-41
Sandra Conaty Brace N-18
Kevin Hugh Bracken S-15
Sandy Waugh Bradshaw S-67
David Brian Brady N-22
Alexander Braginsky N-22
Nicholas W. Brandemarti S-33
Daniel Raymond Brandhorst S-4
David Reed Gamboa Brandhorst S-4
Michelle Renee Bratton N-34
Patrice Braut N-10
Lydia Estelle Bravo N-11
Ronald Michael Breitweiser S-42
Edward A. Brennan III N-53
Frank H. Brennan N-55
Michael E. Brennan S-10
Peter Brennan S-8
Thomas More Brennan S-52
Daniel J. Brethel S-17
Gary Lee Bright S-64
Jonathan Eric Briley N-68
Mark A. Brisman S-45
Paul Gary Bristow N-20
Marion R. Britton S-67
Mark Francis Broderick N-28
Herman Charles Broghammer S-58
Keith A. Broomfield N-64
Bernard C. Brown II S-70
Janice Juloise Brown N-11
Lloyd Stanford Brown N-29
Patrick John Brown S-8
Bettina B. Browne-Radburn S-61
Mark Bruce S-52
Richard George Bruehert N-5
Andrew Brunn S-6
Vincent Edward Brunton S-20
Ronald Bucca S-14
Brandon J. Buchanan N-29
Greg J. Buck S-12
Dennis Buckley N-43
Nancy Clare Bueche S-61
Patrick Joseph Buhse N-53
John Edward Bulaga, Jr. N-34
Stephen Bruce Bunin N-37
Christopher L. Burford S-71
Matthew J. Burke N-29
Thomas Daniel Burke N-54
William Francis Burke, Jr. S-18
Charles F. Burlingame III S-69
Thomas E. Burnett, Jr. S-68
Donald J. Burns S-18
Kathleen Anne Burns S-43
Keith James Burns N-28
John Patrick Burnside S-12
Irina Buslo S-44
Milton G. Bustillo N-34
Thomas M. Butler S-7
Patrick Dennis Byrne S-8
Timothy G. Byrne S-50

C

Daniel M. Caballero S-72
Jesus Neptali Cabezas N-68
Lillian Caceres N-4
Brian Joseph Cachia N-34
Steven Dennis Cafiero, Jr. S-55
Richard Michael Caggiano N-26
Cecile Marella Caguicla N-7
John Brett Cahill S-3
Michael John Cahill N-11
Scott Walter Cahill N-42
Thomas Joseph Cahill N-40
George C. Cain S-20
Salvatore B. Calabro S-8
Joseph M. Calandrillo N-18
Philip V. Calcagno N-15
Edward Calderon S-26
Jose O. Calderon-Olmedo S-74
Kenneth Marcus Caldwell N-65
Dominick E. Calia N-43
Felix Bobby Calixte N-73
Francis Joseph Callahan S-17
Liam Callahan S-29
Suzanne M. Calley S-71
Gino Luigi Calvi N-51
Roko Camaj S-37
Michael F. Cammarata S-15
David Otey Campbell S-34
Geoffrey Thomas Campbell N-22
Robert Arthur Campbell S-44
Sandra Patricia Campbell N-37
Sean Thomas Canavan S-64
John A. Candela N-26
Vincent A. Cangelosi N-41
Stephen J. Cangialosi N-43
Lisa Bella Cannava N-58
Brian Cannizzaro S-8
Michael R. Canty N-61
Louis Anthony Caporicci N-53
Jonathan Neff Cappello N-52
James Christopher Cappers N-15
Richard Michael Caproni N-10
Jose Manuel Cardona N-62
Dennis M. Carey, Sr. S-7
Edward Carlino N-11
Michael Scott Carlo S-12
David G. Carlone S-63
Rosemarie C. Carlson N-67
Mark Stephen Carney N-65
Joyce Ann Carpeneto N-72
Jeremy Caz Carrington N-45
Michael T. Carroll S-8
Peter J. Carroll S-6
James Joseph Carson, Jr. N-35
Christoffer Mikael Carstanjen S-3
Angelene C. Carter S-76
James Marcel Cartier S-64
Sharon Ann Carver S-1
Vivian Casalduc N-65
John Francis Casazza N-52
Paul Regan Cascio S-30
Neilie Anne Heffernan Casey N-75
William Joseph Cashman S-68
Thomas Anthony Casoria S-18
William Otto Caspar N-13
Alejandro Castaño S-38
Arcelia Castillo N-5
Leonard M. Castrianno N-44
Jose Ramon Castro N-23
William E. Caswell S-70
Richard G. Catarelli N-9
Christopher Sean Caton N-54
Robert John Caufield N-19
Mary Teresa Caulfield N-9
Judson Cavalier S-52
Michael Joseph Cawley S-11
Jason David Cayne N-43
Juan Armando Ceballos S-37
Marcia G. Cecil-Carter N-63
Jason Michael Cefalu N-56
Thomas Joseph Celic N-12
Ana Mercedes Centeno N-14
Joni Cesta S-38
John J. Chada S-1
Jeffrey Marc Chairnoff S-51
Swarna Chalasani S-42
William A. Chalcoff N-16
Eli Chalouh S-48
Charles Lawrence Chan N-44
Mandy Chang S-44
Rosa Maria Chapa S-71
Mark Lawrence Charette N-4
David M. Charlebois S-69
Gregorio Manuel Chavez N-70
Pedro Francisco Checo S-39
Douglas MacMillan Cherry S-60
Stephen Patrick Cherry N-26
Vernon Paul Cherry S-11
Nestor Julio Chevalier, Jr. N-33
Swede Joseph Chevalier N-28
Alexander H. Chiang N-10
Dorothy J. Chiarchiaro N-58
Luis Alfonso Chimbo N-70
Robert Chin S-39
Eddie Wing-Wai Ching N-23
Nicholas Paul Chiofalo S-7
John G. Chipura S-21
Peter A. Chirchirillo N-5
Catherine Ellen Chirls N-55
Kyung Hee Casey Cho N-14
Abul K. Chowdhury N-36
Mohammad Salahuddin Chowdhury N-67
Kirsten Lail Christophe S-54
Pamela Chu N-29
Steven Paul Chucknick S-31
Wai Ching Chung S-53
Christopher Ciafardini N-60
Alex F. Ciccone N-8
Frances Ann Cilente N-37
Elaine Cillo N-6
Patricia Ann Cimaroli Massari and her unborn child N-11
Edna Cintron N-12
Nestor Andre Cintron III N-44
Robert D. Cirri, Sr. S-29
Juan Pablo Cisneros N-52
Benjamin Keefe Clark S-39
Eugene Clark S-56
Gregory Alan Clark N-31
Mannie Leroy Clark N-10
Sara M. Clark S-70
Thomas R. Clark S-51
Christopher Robert Clarke S-50
Donna Marie Clarke N-14
Michael J. Clarke S-16
Suria Rachel Emma Clarke N-34
Kevin Francis Cleary S-32
James D. Cleere N-5
Geoffrey W. Cloud N-47
Susan Marie Clyne N-8
Steven Coakley S-13
Jeffrey Alan Coale N-69
Patricia A. Cody N-8
Daniel Michael Coffey N-5
Jason Matthew Coffey N-5
Florence G. Cohen S-47
Kevin S. Cohen N-33
Anthony Joseph Coladonato N-36
Mark Joseph Colaio N-42
Stephen J. Colaio N-42
Christopher Michael Colasanti N-53
Kevin Nathaniel Colbert S-35
Michel P. Colbert N-52
Keith E. Coleman N-30
Scott Thomas Coleman N-30
Tarel Coleman S-23
Liam Joseph Colhoun N-73
Robert D. Colin S-61
Robert J. Coll S-31
Jean Marie Collin S-63
John Michael Collins S-22
Michael L. Collins N-36
Thomas Joseph Collins S-50
Joseph Kent Collison N-72
Jeffrey Dwayne Collman N-74
Patricia Malia Colodner N-6
Linda M. Colon N-3
Sol E. Colon S-58
Ronald Edward Comer N-11
Jaime Concepcion N-70
Albert Conde S-63
Denease Conley S-65
Susan P. Conlon N-73
Margaret Mary Conner N-31
Cynthia Marie Lise Connolly S-56
John E. Connolly, Jr. S-32
James Lee Connor S-50
Jonathan M. Connors N-25
Kevin Patrick Connors S-30
Kevin F. Conroy N-4
Brenda E. Conway N-12
Dennis Michael Cook N-40
Helen D. Cook N-72
Jeffrey W. Coombs N-2
John A. Cooper S-49
Julian T. Cooper S-73
Joseph John Coppo, Jr. N-43
Gerard J. Coppola N-63
Joseph Albert Corbett N-53
John J. Corcoran III S-4
Alejandro Cordero N-6
Robert Joseph Cordice S-7
Ruben D. Correa S-9
Danny A. Correa-Gutierrez N-7
Georgine Rose Corrigan S-68
James J. Corrigan, Ret. S-5
Carlos Cortés-Rodriguez S-65
Kevin Michael Cosgrove S-60
Dolores Marie Costa N-58
Digna Alexandra Costanza N-13
Charles Gregory Costello, Jr. N-64
Michael S. Costello N-26
Asia S. Cottom S-70
Conrod Kofi Cottoy, Sr. N-62
Martin John Coughlan S-64
John G. Coughlin S-23
Timothy J. Coughlin N-54
James E. Cove S-59
Andre Colin Cox N-23
Frederick John Cox S-50
James Raymond Coyle S-7
Michele Coyle-Eulau N-11
Christopher Seton Cramer S-42
Eric A. Cranford S-72
Denise Elizabeth Crant N-10
James Leslie Crawford, Jr. N-27
Robert James Crawford S-18
Tara Kathleen Creamer N-75
Joanne Mary Cregan N-37
Lucia Crifasi N-18
John A. Crisci S-8
Daniel Hal Crisman N-15
Dennis A. Cross S-6
Kevin R. Crotty S-52
Thomas G. Crotty S-53
John R. Crowe S-55
Welles Remy Crowther S-50
Robert L. Cruikshank N-58
John Robert Cruz N-49
Grace Alegre Cua S-39
Kenneth John Cubas S-43
Francisco Cruz Cubero S-65
Thelma Cuccinello N-1
Richard Joseph Cudina N-51
Neil James Cudmore N-20
Thomas Patrick Cullen III S-13
Joan Cullinan N-31
Joyce Rose Cummings S-39
Brian Thomas Cummins N-27
Michael Joseph Cunningham S-31
Robert Curatolo S-19
Laurence Damian Curia N-41
Paul Dario Curioli S-63
Patrick Joseph Currivan N-74
Beverly L. Curry N-35
Andrew Peter Charles Curry Green N-1
Michael Sean Curtin S-24
Patricia Cushing S-67
Gavin Cushny N-31

D

Caleb Arron Dack N-21
Carlos S. da Costa S-25
Jason M. Dahl S-67
Brian Paul Dale N-76
John D’Allara S-24
Vincent Gerard D’Amadeo N-32
Thomas A. Damaskinos N-32
Jack L. D’Ambrosi, Jr. N-45
Jeannine Damiani-Jones N-42
Manuel João DaMota N-71
Patrick W. Danahy S-40
Mary D’Antonio N-6
Vincent G. Danz S-24
Dwight Donald Darcy N-66
Elizabeth Ann Darling N-12
Annette Andrea Dataram N-69
Edward A. D’Atri S-6
Michael D. D’Auria S-16
Lawrence Davidson S-62
Michael Allen Davidson N-30
Scott Matthew Davidson S-10
Titus Davidson S-46
Niurka Davila N-66
Ada M. Davis S-75
Clinton Davis, Sr. S-28
Wayne Terrial Davis N-21
Anthony Richard Dawson N-22
Calvin Dawson S-32
Edward James Day S-15
William Thomas Dean N-11
Robert J. DeAngelis, Jr. S-64
Thomas Patrick DeAngelis S-16
Dorothy Alma de Araujo S-4
Ana Gloria Pocasangre Debarrera S-2
Tara E. Debek N-9
James D. Debeuneure S-70
Anna M. DeBin N-47
James V. DeBlase, Jr. N-51
Jayceryll Malabuyoc de Chavez S-40
Paul DeCola N-36
Gerald F. DeConto S-72
Simon Marash Dedvukaj N-64
Jason Christopher DeFazio N-40
David A. DeFeo S-49
Jennifer De Jesus S-46
Monique Effie DeJesus N-29
Nereida De Jesus S-60
Emy De La Peña S-40
Donald Arthur Delapenha S-36
Azucena Maria de la Torre N-47
Vito Joseph DeLeo N-63
Danielle Anne Delie N-3
Joseph A. Della Pietra N-40
Andrea DellaBella S-58
Palmina DelliGatti N-4
Colleen Ann Deloughery S-59
Joseph DeLuca S-68
Manuel Del Valle, Jr. S-16
Francis Albert De Martini S-27
Anthony Demas S-55
Martin N. DeMeo S-9
Francis Deming N-17
Carol Keyes Demitz S-42
Kevin Dennis N-44
Thomas Francis Dennis, Sr. N-56
Jean C. DePalma N-12
Jose Nicolas De Pena N-69
Robert John Deraney N-21
Michael DeRienzo N-53
David Paul DeRubbio S-14
Jemal Legesse DeSantis N-58
Christian Louis DeSimone N-4
Edward DeSimone III N-53
Andrew J. Desperito S-18
Michael Jude D’Esposito N-6
Cindy Ann Deuel N-59
Melanie Louise de Vere N-20
Jerry DeVito N-60
Robert P. Devitt, Jr. N-32
Dennis Lawrence Devlin S-15
Gerard P. Dewan S-8
Sulemanali Kassamali Dhanani S-53
Michael Louis DiAgostino N-49
Matthew Diaz N-24
Nancy Diaz N-70
Obdulio Ruiz Diaz N-71
Michael A. Diaz-Piedra III N-72
Judith Berquis Diaz-Sierra S-40
Patricia Florence Di Chiaro N-8
Rodney Dickens S-70
Jerry D. Dickerson S-74
Joseph Dermot Dickey, Jr. N-46
Lawrence Patrick Dickinson N-67
Michael D. Diehl S-40
John Difato N-58
Vincent Francis DiFazio N-55
Carl Anthony DiFranco N-4
Donald Joseph DiFranco N-64
John DiGiovanni N-73
Eddie A. Dillard S-70
Debra Ann Di Martino S-36
David DiMeglio N-2
Stephen Patrick Dimino N-53
William John Dimmling N-12
Christopher More Dincuff N-60
Jeffrey Mark Dingle N-21
Rena Sam Dinnoo N-12
Anthony Dionisio N-33
George DiPasquale S-17
Joseph Di Pilato S-46
Douglas Frank DiStefano N-49
Donald Americo DiTullio N-75
Ramzi A. Doany N-14
Johnnie Doctor, Jr. S-72
John Joseph Doherty S-60
Melissa Cándida Doi S-46
Brendan Dolan N-61
Robert E. Dolan, Jr. S-73
Neil Matthew Dollard N-40
James Domanico S-48
Benilda Pascua Domingo S-37
Alberto Dominguez N-2
Carlos Dominguez N-3
Jerome Mark Patrick Dominguez S-25
Kevin W. Donnelly S-6
Jacqueline Donovan S-33
William H. Donovan S-73
Stephen Scott Dorf S-32
Thomas Dowd N-55
Kevin Christopher Dowdell S-11
Mary Yolanda Dowling S-59
Raymond Matthew Downey, Sr. S-9
Frank Joseph Doyle S-34
Joseph Michael Doyle N-33
Randall L. Drake S-38
Patrick Joseph Driscoll S-68
Stephen Patrick Driscoll S-24
Charles A. Droz III S-70
Mirna A. Duarte N-16
Luke A. Dudek N-70
Christopher Michael Duffy S-35
Gerard J. Duffy S-10
Michael Joseph Duffy S-35
Thomas W. Duffy N-4
Antoinette Duger N-72
Jackie Sayegh Duggan N-69
Sareve Dukat S-48
Patrick Dunn S-72
Felicia Gail Dunn-Jones S-66
Christopher Joseph Dunne N-13
Richard Anthony Dunstan S-59
Patrick Thomas Dwyer N-25

E

Joseph Anthony Eacobacci N-50
John Bruce Eagleson S-66
Edward T. Earhart S-72
Robert Douglas Eaton N-46
Dean Phillip Eberling S-33
Margaret Ruth Echtermann S-48
Paul Robert Eckna N-28
Constantine Economos S-51
Barbara G. Edwards S-70
Dennis Michael Edwards N-54
Michael Hardy Edwards S-50
Christine Egan S-53
Lisa Erin Egan N-49
Martin J. Egan, Jr. S-11
Michael Egan S-53
Samantha Martin Egan N-49
Carole Eggert N-6
Lisa Caren Ehrlich S-62
John Ernst Eichler N-71
Eric Adam Eisenberg S-58
Daphne Ferlinda Elder N-8
Michael J. Elferis S-18
Mark Joseph Ellis S-25
Valerie Silver Ellis N-25
Albert Alfy William Elmarry N-36
Robert R. Elseth S-73
Edgar Hendricks Emery, Jr. S-41
Doris Suk-Yuen Eng N-70
Christopher Epps N-6
Ulf Ramm Ericson S-65
Erwin L. Erker N-5
William John Erwin N-46
Sarah Ali Escarcega N-20
Jose Espinal S-66
Fanny Espinoza N-47
Billy Scoop Esposito N-40
Bridget Ann Esposito N-18
Francis Esposito S-7
Michael A. Esposito S-7
Ruben Esquilin, Jr. S-39
Sadie Ette N-69
Barbara G. Etzold N-59
Eric Brian Evans S-59
Robert Edward Evans S-15
Meredith Emily June Ewart S-54

F

Catherine K. Fagan N-13
Patricia Mary Fagan S-55
Ivan Kyrillos Fairbanks-Barbosa N-43
Keith George Fairben S-26
Sandra Fajardo-Smith N-7
Charles S. Falkenberg S-69
Dana Falkenberg S-69
Zoe Falkenberg S-69
Jamie L. Fallon S-72
William F. Fallon N-65
William Lawrence Fallon, Jr. N-37
Anthony J. Fallone, Jr. N-51
Dolores Brigitte Fanelli N-5
Robert John Fangman S-2
John Joseph Fanning S-11
Kathleen Anne Faragher N-22
Thomas James Farino S-19
Nancy C. Doloszycki Farley N-18
Paige Marie Farley-Hackel N-75
Elizabeth Ann Farmer N-47
Douglas Jon Farnum N-10
John Gerard Farrell N-53
John W. Farrell S-51
Terrence Patrick Farrell S-11
Joseph D. Farrelly S-22
Thomas Patrick Farrelly N-17
Syed Abdul Fatha S-49
Christopher Edward Faughnan N-54
Wendy R. Faulkner S-61
Shannon Marie Fava N-35
Bernard D. Favuzza N-42
Robert Fazio, Jr. S-24
Ronald Carl Fazio, Sr. S-60
William M. Feehan S-18
Francis Jude Feely N-7
Garth Erin Feeney N-21
Sean Bernard Fegan N-60
Lee S. Fehling S-7
Peter Adam Feidelberg S-54
Alan D. Feinberg S-10
Rosa Maria Feliciano N-15
Edward P. Felt S-68
Edward Thomas Fergus, Jr. N-41
George J. Ferguson III S-37
J. Joseph Ferguson S-69
Henry Fernandez N-70
Judy Hazel Santillan Fernandez N-36
Julio Fernandez S-45
Elisa Giselle Ferraina N-20
Anne Marie Sallerin Ferreira N-44
Robert John Ferris S-60
David Francis Ferrugio N-56
Louis V. Fersini, Jr. N-43
Michael David Ferugio S-63
Bradley James Fetchet S-35
Jennifer Louise Fialko S-59
Kristen Nicole Fiedel N-6
Amelia V. Fields S-75
Samuel Fields S-65
Alexander Milan Filipov N-2
Michael Bradley Finnegan N-45
Timothy J. Finnerty N-52
Michael C. Fiore S-5
Stephen J. Fiorelli N-66
Paul M. Fiori N-24
John B. Fiorito N-41
John R. Fischer S-13
Andrew Fisher N-22
Bennett Lawson Fisher S-40
Gerald P. Fisher S-75
John Roger Fisher N-66
Thomas J. Fisher S-41
Lucy A. Fishman S-61
Ryan D. Fitzgerald S-40
Thomas James Fitzpatrick S-52
Richard P. Fitzsimons S-23
Salvatore Fiumefreddo N-24
Darlene E. Flagg S-70
Wilson F. Flagg S-70
Christina Donovan Flannery S-50
Eileen Flecha S-41
Andre G. Fletcher S-7
Carl M. Flickinger N-40
Matthew M. Flocco S-72
John Joseph Florio S-22
Joseph Walkden Flounders S-32
Carol Ann Flyzik N-1
David Fodor S-41
Michael N. Fodor S-11
Stephen Mark Fogel N-47
Thomas J. Foley S-16
Jane C. Folger S-67
David J. Fontana S-6
Chih Min Foo S-44
Delrose E. Forbes Cheatham N-48
Godwin Forde S-46
Donald A. Foreman S-27
Christopher Hugh Forsythe N-44
Claudia Alicia Foster N-56
Noel John Foster S-62
Sandra N. Foster S-71
Ana Fosteris S-61
Robert Joseph Foti S-20
Jeffrey Fox S-35
Virginia Elizabeth Fox N-10
Pauline Francis N-24
Virgin Lucy Francis N-69
Gary Jay Frank S-58
Morton H. Frank N-26
Peter Christopher Frank N-59
Colleen L. Fraser S-68
Richard K. Fraser S-59
Kevin J. Frawley S-33
Clyde Frazier, Jr. S-27
Lillian Inez Frederick S-58
Andrew Fredericks S-21
Tamitha Freeman S-58
Brett Owen Freiman S-46
Peter L. Freund S-7
Arlene Eva Fried N-46
Alan W. Friedlander S-58
Andrew Keith Friedman N-59
Paul J. Friedman N-75
Gregg J. Froehner S-29
Lisa Anne Frost S-3
Peter Christian Fry S-32
Clement A. Fumando N-33
Steven Elliot Furman N-50
Paul James Furmato N-26
Karleton Douglas Beye Fyfe N-1
G Fredric Neal Gabler N-26
Richard Peter Gabriel S-70
Richard S. Gabrielle S-55
James Andrew Gadiel N-31
Pamela Lee Gaff S-55
Ervin Vincent Gailliard S-66
Deanna Lynn Galante and her
unborn child N-37
Grace Catherine Galante N-37
Anthony Edward Gallagher N-50
Daniel James Gallagher N-28
John Patrick Gallagher N-49
Lourdes J. Galletti N-47
Cono E. Gallo N-61
Vincent Gallucci N-5
Thomas E. Galvin N-39
Giovanna Galletta Gambale N-34
Thomas Gambino, Jr. S-15
Giann F. Gamboa S-37
Ronald L. Gamboa S-4
Peter James Ganci, Jr. S-17
Michael Gann N-20
Charles William Garbarini S-12
Andrew Sonny Garcia S-68
Cesar R. Garcia N-5
David Garcia N-17
Jorge Luis Morron Garcia S-65
Juan Garcia N-23
Marlyn Del Carmen Garcia N-3
Christopher Samuel Gardner S-57
Douglas Benjamin Gardner N-38
Harvey Joseph Gardner III N-72
Jeffrey Brian Gardner N-4
Thomas A. Gardner S-8
William Arthur Gardner N-37
Frank Garfi N-25
Rocco Nino Gargano N-28
James M. Gartenberg N-64
Matthew David Garvey S-6
Bruce Gary S-15
Boyd Alan Gatton S-43
Donald Richard Gavagan, Jr. N-42
Peter Alan Gay N-2
Terence D. Gazzani N-51
Gary Paul Geidel S-10
Paul Hamilton Geier N-51
Julie M. Geis S-57
Peter Gerard Gelinas N-56
Steven Paul Geller N-29
Howard G. Gelling, Jr. S-51
Peter Victor Genco, Jr. N-41
Steven Gregory Genovese N-26
Alayne Gentul S-42
Linda M. George N-75
Edward F. Geraghty S-9
Suzanne Geraty N-35
Ralph Gerhardt N-45
Robert Gerlich N-18
Denis P. Germain S-16
Marina Romanovna Gertsberg N-48
Susan M. Getzendanner S-40
Lawrence D. Getzfred S-72
James G. Geyer N-55
Cortez Ghee S-75
Joseph M. Giaccone N-36
Vincent Francis Giammona S-6
Debra Lynn Gibbon S-54
James Andrew Giberson S-16
Brenda C. Gibson S-1
Craig Neil Gibson N-16
Ronnie E. Gies S-8
Andrew Clive Gilbert N-45
Timothy Paul Gilbert N-45
Paul Stuart Gilbey S-32
Paul John Gill S-9
Mark Y. Gilles N-50
Evan Hunter Gillette S-50
Ronald Lawrence Gilligan N-33
Rodney C. Gillis S-24
Laura Gilly N-35
John F. Ginley S-16
Donna Marie Giordano S-55
Jeffrey John Giordano S-8
John Giordano S-18
Steven A. Giorgetti N-13
Martin Giovinazzo N-3
Kum-Kum Girolamo S-54
Salvatore Gitto N-10
Cynthia Giugliano N-64
Mon Gjonbalaj S-37
Dianne Gladstone S-47
Keith Alexander Glascoe S-11
Thomas Irwin Glasser S-49
Edmund Glazer N-75
Harry Glenn N-16
Barry H. Glick N-66
Jeremy Logan Glick S-67
Steven Glick N-21
John T. Gnazzo N-32
William Robert Godshalk S-35
Michael Gogliormella N-35
Brian F. Goldberg S-42
Jeffrey G. Goldflam N-38
Michelle Goldstein S-62
Monica Goldstein N-48
Steven Ian Goldstein N-50
Ronald F. Golinski S-75
Andrew H. Golkin N-46
Dennis James Gomes S-43
Enrique Antonio Gomez N-68
Jose Bienvenido Gomez N-68
Manuel Gomez, Jr. S-44
Wilder Alfredo Gomez N-69
Jenine Nicole Gonzalez S-53
Mauricio Gonzalez S-64
Rosa J. Gonzalez N-66
Lynn Catherine Goodchild S-3
Calvin Joseph Gooding N-39
Peter Morgan Goodrich S-3
Harry Goody S-48
Kiran Kumar Reddy Gopu N-8
Catherine C. Gorayeb N-22
Lisa Fenn Gordenstein N-75
Kerene Gordon N-24
Sebastian Gorki S-38
Kieran Joseph Gorman S-36
Thomas Edward Gorman S-28
Michael Edward Gould N-25
O. Kristin Osterholm White Gould S-68
Douglas Alan Gowell S-4
Yuji Goya S-45
Jon Richard Grabowski N-15
Christopher Michael Grady N-46
Edwin J. Graf III N-41
David Martin Graifman S-34
Gilbert Franco Granados S-58
Lauren Catuzzi Grandcolas and
her unborn child S-68
Elvira Granitto N-64
Winston Arthur Grant N-65
Christopher S. Gray N-44
Ian J. Gray S-71
James Michael Gray S-13
Tara McCloud Gray N-72
John M. Grazioso N-25
Timothy George Grazioso N-25
Derrick Auther Green S-42
Wade B. Green N-23
Wanda Anita Green S-67
Elaine Myra Greenberg N-20
Donald Freeman Greene S-67
Gayle R. Greene N-9
James Arthur Greenleaf, Jr. N-62
Eileen Marsha Greenstein S-56
Elizabeth Martin Gregg N-59
Denise Marie Gregory N-63
Donald H. Gregory N-39
Florence Moran Gregory S-58
Pedro Grehan N-51
John Michael Griffin N-63
Tawanna Sherry Griffin N-23
Joan Donna Griffith S-39
Warren Grifka N-15
Ramon B. Grijalvo N-65
Joseph F. Grillo N-66
David Joseph Grimner N-12
Francis Edward Grogan S-4
Linda Gronlund S-68
Kenneth George Grouzalis S-25
Joseph Grzelak S-19
Matthew James Grzymalski N-54
Robert Joseph Gschaar S-53
Liming Gu N-3
Richard J. Guadagno S-67
Jose A. Guadalupe S-10
Cindy Yan Zhu Guan S-48
Geoffrey E. Guja S-12
Joseph P. Gullickson S-9
Babita Girjamatie Guman S-39
Douglas Brian Gurian N-39
Janet Ruth Gustafson S-61
Philip T. Guza S-53
Barbara Guzzardo S-55
Peter Mark Gyulavary S-65

H

Gary Robert Haag N-5
Andrea Lyn Haberman N-61
Barbara Mary Habib N-9
Philip Haentzler N-73
Nezam A. Hafiz N-6
Karen Elizabeth Hagerty S-54
Steven Michael Hagis N-55
Mary Lou Hague S-35
David Halderman S-21
Maile Rachel Hale N-21
Diane Hale-McKinzy S-1
Richard B. Hall S-54
Stanley R. Hall S-70
Vaswald George Hall N-67
Robert J. Halligan S-54
Vincent Gerard Halloran S-13
Carolyn B. Halmon S-75
James Douglas Halvorson N-0
Mohammad Salman Hamdani S-66
Felicia Hamilton S-41
Robert W. Hamilton S-12
Carl Max Hammond, Jr. S-3
Frederic K. Han N-46
Christopher James Hanley N-22
Sean S. Hanley S-12
Valerie Joan Hanna N-9
Thomas Paul Hannafin S-5
Kevin James Hannaford, Sr. N-50
Michael Lawrence Hannan N-10
Dana Rey Hannon S-19
Christine Lee Hanson S-4
Peter Burton Hanson S-4
Sue Kim Hanson S-4
Vassilios G. Haramis S-65
James A. Haran N-51
Gerald Francis Hardacre S-4
Jeffrey Pike Hardy N-24
T.J. Hargrave N-55
Daniel Edward Harlin S-16
Frances Haros S-35
Harvey L. Harrell S-5
Stephen G. Harrell S-5
Melissa Harrington-Hughes N-22
Aisha Ann Harris N-72
Stewart D. Harris N-47
John Patrick Hart S-39
Eric Hartono S-4
John Clinton Hartz S-43
Emeric Harvey N-67
Peter Paul Hashem N-2
Thomas Theodore Haskell, Jr. S-22
Timothy Shawn Haskell S-22
Joseph John Hasson III N-55
Leonard W. Hatton, Jr. S-26
Terence S. Hatton S-9
Michael Helmut Haub S-10
Timothy Aaron Haviland N-14
Donald G. Havlish, Jr. S-56
Anthony Maurice Hawkins N-31
Nobuhiro Hayatsu S-39
James Edward Hayden S-4
Robert Jay Hayes N-76
Philip T. Hayes, Ret. S-13
W. Ward Haynes N-49
Scott Jordan Hazelcorn N-54
Michael K. Healey S-12
Roberta B. Heber N-7
Charles Francis Xavier Heeran N-29
John F. Heffernan S-15
Michele M. Heidenberger S-69
Sheila M.S. Hein S-75
H. Joseph Heller, Jr. N-62
JoAnn L. Heltibridle N-14
Ronald John Hemenway S-71
Mark F. Hemschoot S-62
Ronnie Lee Henderson S-23
Brian Hennessey N-35
Edward R. Hennessy, Jr. N-76
Michelle Marie Henrique S-41
Joseph Patrick Henry S-10
William L. Henry, Jr. S-10
Catherina Henry-Robinson N-72
John Christopher Henwood N-52
Robert Allan Hepburn N-14
Mary Herencia S-55
Lindsay C. Herkness III S-46
Harvey Robert Hermer N-24
Norberto Hernandez N-68
Raul Hernandez N-31
Gary Herold S-58
Jeffrey Alan Hersch N-47
Thomas J. Hetzel S-17
Leon Bernard Heyward MC
Sundance S-36
Brian Christopher Hickey S-12
Enemencio Dario Hidalgo Cedeño N-69
Timothy Brian Higgins S-22
Robert D. W. Higley II S-59
Todd Russell Hill S-46
Clara Victorine Hinds N-69
Neal O. Hinds S-37
Mark Hindy N-25
Katsuyuki Hirai S-39
Heather Malia Ho N-70
Tara Yvette Hobbs S-59
Thomas Anderson Hobbs N-50
James J. Hobin N-9
Robert Wayne Hobson III N-49
DaJuan Hodges N-8
Ronald G. Hoerner S-65
Patrick A. Hoey N-66
John A. Hofer N-2
Marcia Hoffman N-36
Stephen Gerard Hoffman N-42
Frederick Joseph Hoffmann N-39
Michele L. Hoffmann N-39
Judith Florence Hofmiller N-16
Wallace Cole Hogan, Jr. S-74
Thomas Warren Hohlweck, Jr. S-60
Jonathan R. Hohmann S-8
Cora Hidalgo Holland N-2
John Holland N-70
Joseph F. Holland N-61
Jimmie I. Holley S-75
Elizabeth Holmes S-32
Thomas P. Holohan S-14
Herbert Wilson Homer S-2
LeRoy W. Homer, Jr. S-67
Bradley V. Hoorn N-58
James P. Hopper N-30
Montgomery McCullough Hord N-29
Michael Joseph Horn N-27
Matthew Douglas Horning N-16
Robert L. Horohoe, Jr. N-39
Michael Robert Horrocks S-2
Aaron Horwitz N-42
Charles J. Houston S-32
Uhuru G. Houston S-28
Angela M. Houtz S-73
George Gerard Howard S-28
Brady Kay Howell S-73
Michael C. Howell N-60
Steven Leon Howell N-3
Jennifer L. Howley and her unborn child S-56
Milagros Hromada S-55
Marian R. Hrycak S-48
Stephen Huczko, Jr. S-30
Kris Robert Hughes S-34
Paul Rexford Hughes N-16
Robert T. Hughes, Jr. N-73
Thomas F. Hughes, Jr. N-71
Timothy Robert Hughes N-44
Susan Huie N-20
Lamar Demetrius Hulse N-17
John Nicholas Humber, Jr. N-1
William Christopher Hunt S-33
Kathleen Anne Hunt-Casey S-50
Joseph Gerard Hunter S-8
Peggie M. Hurt S-75
Robert R. Hussa N-62
Stephen N. Hyland, Jr. S-74
Robert J. Hymel S-71
Thomas Edward Hynes S-37
Walter G. Hynes S-17

I

Joseph Anthony Ianelli N-9
Zuhtu Ibis N-36
Jonathan Lee Ielpi S-7
Michael Patrick Iken S-33
Daniel Ilkanayev N-48
Frederick J. Ill, Jr. S-16
Abraham Nethanel Ilowitz N-64
Anthony P. Infante, Jr. S-27
Louis S. Inghilterra S-43
Christopher Noble Ingrassia N-30
Paul Innella N-36
Stephanie Veronica Irby N-7
Douglas Jason Irgang S-50
Kristin Irvine-Ryan S-51
Todd Antione Isaac N-56
Erik Hans Isbrandtsen N-25
Taizo Ishikawa S-45
Waleed Joseph Iskandar N-1
Aram Iskenderian, Jr. N-47
John F. Iskyan N-52
Kazushige Ito S-45
Aleksandr Valeryevich Ivantsov N-27
Lacey Bernard Ivory S-74

J

Virginia May Jablonski N-5
Bryan C. Jack S-70
Brooke Alexandra Jackman N-41
Aaron Jeremy Jacobs N-29
Ariel Louis Jacobs N-21
Jason Kyle Jacobs S-40
Michael G. Jacobs S-42
Steven A. Jacobson N-71
Steven D. Jacoby S-70
Ricknauth Jaggernauth N-71
Jake Denis Jagoda N-34
Yudhvir S. Jain N-37
Maria Jakubiak N-11
Robert Adrien Jalbert S-2
Ernest James N-5
Gricelda E. James N-67
Mark Steven Jardim N-23
Amy Nicole Jarret S-2
Muhammadou Jawara N-70
Francois Jean-Pierre N-71
Maxima Jean-Pierre N-24
Paul Edward Jeffers N-52
John Charles Jenkins N-76
Joseph Jenkins, Jr. S-64
Alan Keith Jensen S-43
Prem Nath Jerath N-67
Farah Jeudy S-60
Hweidar Jian N-27
Eliezer Jimenez, Jr. N-69
Luis Jimenez, Jr. N-13
Charles Gregory John S-45
Nicholas John N-23
Dennis M. Johnson S-74
LaShawna Johnson N-72
Scott Michael Johnson S-33
William R. Johnston S-14
Allison Horstmann Jones S-51
Arthur Joseph Jones III N-59
Brian Leander Jones S-39
Charles Edward Jones N-74
Christopher D. Jones N-41
Donald T. Jones II N-43
Donald W. Jones N-55
Judith Lawter Jones S-73
Linda Jones S-56
Mary S. Jones N-65
Andrew Brian Jordan, Sr. S-22
Robert Thomas Jordan N-42
Albert Gunnis Joseph S-46
Ingeborg Joseph S-46
Karl Henry Joseph S-20
Stephen Joseph S-44
Jane Eileen Josiah S-43
Anthony Jovic S-10
Angel L. Juarbe, Jr. S-16
Karen Sue Juday N-31
Ann C. Judge S-70
Mychal F. Judge S-18
Paul William Jurgens S-30
Thomas Edward Jurgens S-26

K

Shashikiran Lakshmikantha
Kadaba N-18
Gavkharoy Kamardinova S-64
Shari Kandell N-32
Howard Lee Kane N-69
Jennifer Lynn Kane N-4
Vincent D. Kane S-18
Joon Koo Kang N-29
Sheldon Robert Kanter N-36
Deborah H. Kaplan N-66
Robin Lynne Kaplan N-1
Alvin Peter Kappelmann, Jr. S-63
Charles H. Karczewski S-56
William A. Karnes N-9
Douglas Gene Karpiloff S-26
Charles L. Kasper S-11
Andrew K. Kates N-38
John A. Katsimatides N-39
Robert Michael Kaulfers S-28
Don Jerome Kauth, Jr. S-36
Hideya Kawauchi S-44
Edward T. Keane N-66
Richard M. Keane N-15
Lisa Yvonne Kearney-Griffin N-18
Karol Ann Keasler S-34
Barbara A. Keating N-76
Paul Hanlon Keating S-5
Leo Russell Keene III S-33
Brenda Kegler S-1
Chandler Raymond Keller S-69
Joseph John Keller S-46
Peter R. Kellerman N-28
Joseph P. Kellett N-61
Frederick H. Kelley III N-43
James Joseph Kelly N-56
Joseph A. Kelly N-51
Maurice P. Kelly N-24
Richard John Kelly, Jr. S-15
Thomas Michael Kelly S-30
Thomas Richard Kelly S-20
Thomas W. Kelly S-20
Timothy Colin Kelly N-43
William Hill Kelly, Jr. N-21
Robert Clinton Kennedy N-12
Thomas J. Kennedy S-8
Yvonne E. Kennedy S-69
John Richard Keohane S-63
Ralph Francis Kershaw S-3
Ronald T. Kerwin S-8
Howard L. Kestenbaum S-53
Douglas D. Ketcham N-29
Ruth Ellen Ketler S-40
Boris Khalif N-17
Norma Cruz Khan S-71
Sarah Khan N-24
Taimour Firaz Khan N-62
Rajesh Khandelwal N-12
SeiLai Khoo N-59
Michael Vernon Kiefer S-22
Satoshi Kikuchihara S-39
Andrew Jay-Hoon Kim N-60
Lawrence Don Kim N-10
Mary Jo Kimelman N-54
Heinrich Kimmig S-3
Karen Ann Kincaid S-70
Amy R. King S-2
Andrew M. King N-44
Lucille Teresa King S-61
Robert King, Jr. S-14
Lisa King-Johnson S-36
Brian K. Kinney S-3
Takashi Kinoshita S-44
Chris Michael Kirby S-64
Robert Kirkpatrick N-73
Howard Barry Kirschbaum N-8
Glenn Davis Kirwin N-38
Helen Crossin Kittle and her
unborn child N-35
Richard Joseph Klares S-63
Peter Anton Klein N-17
Alan David Kleinberg N-52
Karen Joyce Klitzman N-45
Ronald Philip Kloepfer S-25
Stephen A. Knapp N-73
Eugueni Kniazev N-69
Andrew James Knox N-24
Thomas Patrick Knox N-50
Rebecca Lee Koborie N-4
Deborah A. Kobus S-39
Gary Edward Koecheler S-32
Frank J. Koestner N-28
Ryan Kohart N-27
Vanessa Lynn Przybylo Kolpak S-36
Irina Kolpakova S-45
Suzanne Rose Kondratenko S-63
Abdoulaye Koné N-68
Bon Seok Koo N-73
Dorota Kopiczko N-15
Scott Michael Kopytko S-21
Bojan George Kostic N-27
Danielle Kousoulis N-40
David P. Kovalcin N-2
John J. Kren S-32
William Edward Krukowski S-11
Lyudmila Ksido N-17
Toshiya Kuge S-68
Shekhar Kumar N-35
Kenneth Bruce Kumpel S-22
Frederick Kuo, Jr. S-65
Patricia A. Kuras N-3
Nauka Kushitani S-41
Thomas Joseph Kuveikis S-22
Victor Kwarkye N-68
Raymond Kui Fai Kwok N-33
Angela Reed Kyte N-11

L

Andrew La Corte N-62
Carol Ann La Plante N-15
Jeffrey G. La Touche N-70
Kathryn L. LaBorie S-2
Amarnauth Lachhman N-24
Ganesh K. Ladkat N-34
James Patrick Ladley N-40
Joseph A. Lafalce N-32
Jeanette Louise Lafond-Menichino N-10
David James LaForge S-12
Michael Patrick LaForte N-53
Alan Charles LaFrance N-69
Juan Mendez Lafuente N-71
Neil Kwong-Wah Lai S-47
Vincent Anthony Laieta S-53
William David Lake S-16
Franco Lalama N-66
Chow Kwan Lam S-48
Michael S. Lamana S-72
Stephen LaMantia N-56
Amy Hope Lamonsoff N-20
Robert T. Lane S-7
Brendan Mark Lang N-26
Rosanne P. Lang N-26
Vanessa Lang Langer and her
unborn child S-49
Mary Lou Langley S-53
Peter J. Langone S-23
Thomas Michael Langone S-23
Michele Bernadette Lanza S-40
Ruth Sheila Lapin S-37
Ingeborg A.D. Lariby S-49
Robin Blair Larkey N-44
Judith Camilla Larocque N-2
Christopher Randall Larrabee N-25
Hamidou S. Larry N-9
Scott Larsen S-21
John Adam Larson S-57
Natalie Janis Lasden N-75
Gary Edward Lasko N-7
Nicholas Craig Lassman N-36
Paul Laszczynski S-29
Charles A. Laurencin S-46
Stephen James Lauria N-7
Maria LaVache N-6
Denis Francis Lavelle N-16
Jeannine Mary LaVerde S-36
Anna A. Laverty S-39
Steven Lawn S-54
Robert A. Lawrence, Jr. S-49
Nathaniel Lawson N-23
David W. Laychak S-1
Eugen Gabriel Lazar N-33
James Patrick Leahy S-25
Joseph Gerard Leavey S-21
Neil J. Leavy S-13
Robert G. LeBlanc S-3
Leon Lebor N-64
Kenneth Charles Ledee N-14
Alan J. Lederman S-60
Elena F. Ledesma N-9
Alexis Leduc S-43
Daniel John Lee N-2
David S. Lee S-42
Dong Chul Lee S-70
Gary H. Lee N-35
Hyun Joon Lee S-48
Juanita Lee S-54
Kathryn Blair Lee N-9
Linda C. Lee N-22
Lorraine Mary Greene Lee S-56
Myoung Woo Lee S-47
Richard Y.C. Lee N-29
Stuart Soo-Jin Lee N-21
Yang Der Lee N-70
Stephen Paul Lefkowitz S-48
Adriana Legro N-61
Edward Joseph Lehman S-54
Eric Lehrfeld N-22
David R. Leistman N-39
David Prudencio Lemagne S-29
Joseph Anthony Lenihan S-34
John Joseph Lennon, Jr. S-28
John Robinson Lenoir S-52
Jorge Luis León, Sr. N-35
Matthew G. Leonard N-46
Michael Lepore N-13
Charles A. Lesperance N-71
Jeff LeVeen N-26
John Dennis Levi S-29
Alisha Caren Levin S-44
Neil David Levin N-65
Robert Levine N-39
Robert Michael Levine S-37
Shai Levinhar N-29
Daniel M. Lewin N-75
Adam Jay Lewis S-35
Jennifer Lewis S-69
Kenneth E. Lewis S-69
Margaret Susan Lewis N-66
Ye Wei Liang N-8
Orasri Liangthanasarn N-69
Daniel F. Libretti S-17
Ralph Michael Licciardi S-64
Edward Lichtschein N-36
Samantha L. Lightbourn-Allen S-76
Steven Barry Lillianthal N-56
Carlos R. Lillo S-11
Craig Damian Lilore N-25
Arnold Arboleda Lim S-41
Darya Lin S-63
Wei Rong Lin N-67
Nickie L. Lindo N-58
Thomas V. Linehan, Jr. N-12
Robert Thomas Linnane S-12
Alan Patrick Linton, Jr. S-52
Diane Theresa Lipari N-61
Kenneth P. Lira Arévalo S-45
Francisco Alberto Liriano N-58
Lorraine Lisi S-40
Paul Lisson S-49
Vincent M. Litto N-25
Ming-Hao Liu S-64
Nancy Liz S-56
Harold Lizcano N-59
Martin Lizzul N-36
George A. Llanes N-63
Elizabeth C. Logler N-34
Catherine Lisa Loguidice N-55
Jérôme Robert Lohez N-65
Michael William Lomax S-57
Stephen V. Long S-73
Laura Maria Longing N-8
Salvatore P. Lopes S-53
Daniel Lopez N-62
George Lopez S-41
Luis Manuel Lopez S-37
Maclovio Lopez, Jr. S-3
Manuel L. Lopez N-14
Joseph Lostrangio N-17
Chet Dek Louie N-46
Stuart Seid Louis S-50
Joseph Lovero S-29
Sara Elizabeth Low N-74
Jenny Seu Kueng Low Wong N-14
Michael W. Lowe S-46
Garry W. Lozier S-52
John P. Lozowsky N-17
Charles Peter Lucania S-64
Edward Hobbs Luckett N-55
Mark Gavin Ludvigsen S-36
Lee Charles Ludwig S-42
Sean Thomas Lugano S-35
Daniel Lugo S-65
Marie Lukas N-35
William Lum, Jr. N-18
Michael P. Lunden N-53
Christopher E. Lunder N-42
Anthony Luparello S-37
Gary Frederick Lutnick N-38
Linda Anne Luzzicone N-45
Alexander Lygin N-48
CeeCee Lyles S-67
Farrell Peter Lynch N-57
James Francis Lynch S-28
James T. Lynch, Jr. S-73
Louise A. Lynch N-15
Michael Cameron Lynch N-41
Michael Francis Lynch S-15
Michael Francis Lynch S-9
Richard D. Lynch, Jr. S-31
Robert Henry Lynch, Jr. S-26
Sean P. Lynch N-26
Sean Patrick Lynch N-57
Terence M. Lynch S-75
Michael J. Lyons S-13
Monica Anne Lyons N-0
Nehamon Lyons IV S-72
Patrick John Lyons S-23
M Robert Francis Mace N-47
Marianne MacFarlane S-2
Jan Maciejewski N-69
Susan A. Mackay N-1
William Macko N-73
Catherine Fairfax MacRae N-59
Richard Blaine Madden S-58
Simon Maddison N-31
Noell C. Maerz S-30
Jennieann Maffeo N-73
Joseph Maffeo S-9
Jay Robert Magazine N-71
Brian Magee N-20
Charles W. Magee N-63
Joseph V. Maggitti N-4
Ronald Magnuson N-48
Daniel L. Maher N-13
Thomas A. Mahon N-51
William J. Mahoney S-11
Joseph Daniel Maio N-30
Linda C. Mair-Grayling N-8
Takashi Makimoto S-44
Abdu Ali Malahi S-45
Debora I. Maldonado N-0
Myrna T. Maldonado-Agosto N-66
Alfred Russell Maler N-54
Gregory James Malone S-32
Edward Francis Maloney III N-50
Joseph E. Maloney S-7
Gene Edward Maloy N-3
Christian H. Maltby N-44
Francisco Miguel Mancini N-71
Joseph Mangano N-3
Sara Elizabeth Manley N-59
Debra M. Mannetta N-61
Marion Victoria Manning N-13
Terence John Manning N-21
James Maounis S-40
Alfred Gilles Padre Joseph
Marchand S-2
Joseph Ross Marchbanks, Jr. S-5
Laura A. Marchese N-65
Hilda Marcin S-67
Peter Edward Mardikian N-21
Edward Joseph Mardovich S-33
Charles Joseph Margiotta S-16
Louis Neil Mariani S-4
Kenneth Joseph Marino S-9
Lester V. Marino N-24
Vita Marino S-51
Kevin D. Marlo S-50
Jose Juan Marrero S-32
John Daniel Marshall S-15
Shelley A. Marshall S-71
James Martello N-26
Michael A. Marti N-51
Karen Ann Martin N-74
Peter C. Martin S-18
Teresa M. Martin S-75
William J. Martin, Jr. N-51
Brian E. Martineau S-62
Betsy Martinez N-32
Edward J. Martinez N-35
Jose Angel Martinez, Jr. N-24
Robert Gabriel Martinez S-65
Waleska Martinez S-67
Lizie D. Martinez-Calderon S-55
Paul Richard Martini S-12
Anne Marie Martino-Cramer S-42
Joseph A. Mascali S-6
Bernard Mascarenhas N-7
Stephen Frank Masi N-35
Ada L. Mason-Acker S-1
Nicholas George Massa S-53
Michael Massaroli N-32
Philip William Mastrandrea, Jr. N-30
Rudy Mastrocinque N-5
Joseph Mathai N-21
Charles William Mathers N-4
William A. Mathesen S-32
Marcello Matricciano N-36
Margaret Elaine Mattic N-72
Dean E. Mattson S-74
Robert D. Mattson S-40
Walter A. Matuza, Jr. N-63
Timothy J. Maude S-74
Jill Maurer-Campbell S-37
Charles A. Mauro, Jr. S-56
Charles J. Mauro N-68
Dorothy Mauro N-9
Nancy T. Mauro N-8
Robert J. Maxwell S-1
Renée A. May and her unborn child S-69
Tyrone May S-48
Keithroy Marcellus Maynard S-14
Robert J. Mayo S-23
Kathy N. Mazza S-29
Edward Mazzella, Jr. N-28
Jennifer Lynn Mazzotta N-33
Kaaria Mbaya N-37
James Joseph McAlary, Jr. N-61
Brian Gerard McAleese S-15
Patricia Ann McAneney N-8
Colin R. McArthur S-58
John Kevin McAvoy S-6
Kenneth M. McBrayer S-52
Brendan F. McCabe S-43
Michael McCabe N-28
Thomas Joseph McCann S-14
Justin McCarthy N-30
Kevin M. McCarthy N-40
Michael Desmond McCarthy N-60
Robert G. McCarthy N-27
Stanley McCaskill N-16
Katie Marie McCloskey N-17
Juliana Valentine McCourt S-3
Ruth Magdaline McCourt S-3
Charles Austin McCrann N-12
Tonyell F. McDay N-13
Matthew T. McDermott N-30
Joseph P. McDonald N-45
Brian Grady McDonnell S-24
Michael P. McDonnell S-36
John F. McDowell, Jr. S-51
Eamon J. McEneaney N-57
John Thomas McErlean, Jr. N-39
Daniel Francis McGinley S-35
Mark Ryan McGinly N-60
William E. McGinn S-21
Thomas Henry McGinnis N-61
Michael Gregory McGinty N-4
Ann Walsh McGovern S-55
Scott Martin McGovern S-31
William J. McGovern S-6
Stacey Sennas McGowan S-51
Francis Noel McGuinn N-51
Thomas F. McGuinness, Jr. N-74
Patrick J. McGuire S-30
Thomas M. McHale N-56
Keith David McHeffey N-28
Ann M. McHugh S-30
Denis J. McHugh III S-33
Dennis P. McHugh S-18
Michael Edward McHugh, Jr. N-34
Robert G. McIlvaine N-22
Donald James McIntyre S-30
Stephanie Marie McKenna N-18
Molly L. McKenzie S-75
Barry J. McKeon S-40
Evelyn C. McKinnedy S-37
Darryl Leron McKinney N-29
George Patrick McLaughlin, Jr. N-59
Robert C. McLaughlin, Jr. N-52
Gavin McMahon S-59
Robert D. McMahon S-13
Edmund M. McNally S-43
Daniel Walker McNeal S-51
Walter Arthur McNeil S-28
Christine Sheila McNulty N-19
Sean Peter McNulty N-28
Robert William McPadden S-15
Terence A. McShane S-9
Timothy Patrick McSweeney S-7
Martin E. McWilliams S-17
Rocco A. Medaglia N-71
Abigail Medina N-16
Ana Iris Medina S-54
Damian Meehan N-61
William J. Meehan, Jr. N-27
Alok Kumar Mehta N-34
Raymond Meisenheimer S-14
Manuel Emilio Mejia N-69
Eskedar Melaku N-14
Antonio Melendez N-70
Mary P. Melendez S-43
Christopher D. Mello N-75
Yelena Melnichenko N-10
Stuart Todd Meltzer N-50
Diarelia Jovanah Mena N-27
Dora Marie Menchaca S-69
Charles R. Mendez S-20
Lizette Mendoza S-60
Shevonne Olicia Mentis N-7
Wolfgang Peter Menzel S-3
Steve John Mercado S-16
Wilfredo Mercado N-73
Wesley Mercer S-47
Ralph Joseph Mercurio N-50
Alan Harvey Merdinger N-0
George L. Merino S-42
Yamel Josefina Merino S-26
George Merkouris N-60
Deborah Merrick N-66
Raymond Joseph Metz III S-32
Jill Ann Metzler S-62
David Robert Meyer N-41
Nurul H. Miah N-15
William Edward Micciulli N-29
Martin Paul Michelstein S-63
Patricia E. Mickley S-71
Ronald D. Milam S-73
Peter Teague Milano N-40
Gregory Milanowycz S-58
Lukasz Tomasz Milewski N-23
Sharon Christina Millan S-45
Corey Peter Miller N-31
Craig J. Miller S-27
Douglas C. Miller S-6
Henry Alfred Miller, Jr. S-20
Joel Miller N-16
Michael Matthew Miller N-55
Nicole Carol Miller S-67
Philip D. Miller S-58
Robert Alan Miller S-48
Robert Cromwell Miller, Jr. S-61
Benny Millman S-64
Charles M. Mills, Jr. S-26
Ronald Keith Milstein S-39
Robert J. Minara S-22
William George Minardi N-54
Louis Joseph Minervino N-15
Thomas Mingione S-22
Wilbert Miraille N-31
Domenick N. Mircovich S-31
Rajesh Arjan Mirpuri N-21
Joseph D. Mistrulli N-71
Susan J. Miszkowicz N-66
Paul Thomas Mitchell S-20
Richard P. Miuccio S-47
Jeffrey Peter Mladenik N-1
Frank V. Moccia, Sr. S-65
Louis Joseph Modafferi S-6
Boyie Mohammed N-62
Dennis Mojica S-8
Manuel D. Mojica, Jr. S-21
Kleber Rolando Molina S-43
Manuel De Jesus Molina N-64
Carl Molinaro S-17
Justin John Molisani, Jr. S-30
Brian Patrick Monaghan S-64
Franklyn Monahan N-32
John Gerard Monahan N-33
Kristen Leigh Montanaro N-3
Craig Montano N-42
Michael G. Montesi S-9
Carlos Alberto Montoya N-75
Antonio De Jesus Montoya Valdes N-74
Cheryl Ann Monyak N-9
Thomas Carlo Moody S-18
Sharon Moore S-52
Krishna V. Moorthy S-43
Laura Lee Defazio Morabito N-75
Abner Morales S-41
Carlos Manuel Morales N-31
Paula E. Morales S-59
Sonia Mercedes Morales Puopolo N-76
Gerard P. Moran, Jr. S-73
John Christopher Moran N-20
John Michael Moran S-11
Kathleen Moran S-63
Lindsay Stapleton Morehouse S-36
George William Morell N-54
Steven P. Morello N-3
Vincent S. Morello S-16
Yvette Nicole Moreno N-59
Dorothy Morgan N-15
Richard J. Morgan S-30
Nancy Morgenstern N-31
Sanae Mori N-22
Blanca Robertina Morocho Morocho N-68
Leonel Geronimo Morocho Morocho N-68
Dennis Gerard Moroney N-47
Lynne Irene Morris N-33
Odessa V. Morris S-76
Seth Allan Morris N-54
Steve Morris N-19
Christopher Martel Morrison N-23
Ferdinand V. Morrone S-27
William David Moskal N-3
Brian A. Moss S-71
Marco Motroni N-62
Cynthia Motus-Wilson N-67
Iouri A. Mouchinski N-71
Jude Joseph Moussa N-50
Peter Moutos N-9
Damion O’Neil Mowatt N-23
Teddington H. Moy S-1
Christopher Michael Mozzillo S-7
Stephen Vincent Mulderry S-33
Richard T. Muldowney, Jr. S-21
Michael D. Mullan S-17
Dennis Michael Mulligan S-17
Peter James Mulligan N-29
Michael Joseph Mullin N-26
James Donald Munhall S-52
Nancy Muñiz N-65
Francisco Heladio Munoz N-4
Carlos Mario Muñoz N-70
Theresa Munson S-57
Robert Michael Murach N-47
Cesar Augusto Murillo N-29
Marc A. Murolo N-53
Brian Joseph Murphy N-55
Charles Anthony Murphy N-56
Christopher W. Murphy S-33
Edward Charles Murphy N-50
James F. Murphy IV N-23
James Thomas Murphy N-54
Kevin James Murphy N-5
Patrick Jude Murphy S-73
Patrick Sean Murphy N-5
Raymond E. Murphy S-19
Robert Eddie Murphy, Jr. S-45
John Joseph Murray N-45
John Joseph Murray S-45
Susan D. Murray N-14
Valerie Victoria Murray N-64
Richard Todd Myhre N-33

N

Louis J. Nacke II S-68
Robert B. Nagel S-10
Mildred Rose Naiman N-75
Takuya Nakamura N-63
Alexander John Robert Napier S-54
Frank Joseph Naples III N-45
John Philip Napolitano S-17
Catherine Ann Nardella S-61
Mario Nardone, Jr. S-30
Manika K. Narula N-33
Shawn M. Nassaney S-3
Narender Nath N-11
Karen Susan Navarro N-62
Joseph M. Navas S-28
Francis Joseph Nazario N-32
Glenroy I. Neblett N-18
Rayman Marcus Neblett S-60
Jerome O. Nedd N-71
Laurence F. Nedell S-58
Luke G. Nee N-43
Pete Negron S-0
Laurie Ann Neira N-76
Ann N. Nelson N-42
David William Nelson N-61
Ginger Risco Nelson N-60
James A. Nelson S-30
Michele Ann Nelson N-49
Peter Allen Nelson S-12
Oscar Francis Nesbitt S-47
Gerard Terence Nevins S-8
Renee Tetreault Newell N-74
Christopher C. Newton S-71
Christopher Newton-Carter S-51
Nancy Yuen Ngo N-17
Khang Ngoc Nguyen S-73
Jody Tepedino Nichilo N-47
Kathleen Ann Nicosia N-74
Martin Stewart Niederer N-26
Alfonse Joseph Niedermeyer S-28
Frank John Niestadt, Jr. S-62
Gloria Nieves S-40
Juan Nieves, Jr. N-70
Troy Edward Nilsen N-35
Paul Nimbley N-30
John Ballantine Niven S-61
Katherine McGarry Noack N-22
Curtis Terrance Noel N-72
Michael A. Noeth S-72
Daniel R. Nolan N-3
Robert Walter Noonan N-49
Jacqueline June Norton N-2
Robert Grant Norton N-2
Daniela Rosalia Notaro N-58
Brian Christopher Novotny N-45
Soichi Numata S-44
Brian Nunez N-45
Jose Nunez N-71
Jeffrey Roger Nussbaum N-62

O

Dennis Patrick O’Berg S-20
James P. O’Brien, Jr. N-55
Michael P. O’Brien N-43
Scott J. O’Brien N-22
Timothy Michael O’Brien N-57
Daniel O’Callaghan S-10
Dennis James O’Connor, Jr. N-30
Diana J. O’Connor S-49
Keith Kevin O’Connor S-34
Richard J. O’Connor N-12
Amy O’Doherty N-39
Marni Pont O’Doherty S-36
James Andrew O’Grady S-50
Thomas G. O’Hagan S-13
Patrick J. O’Keefe S-10
William O’Keefe S-11
Gerald Thomas O’Leary N-27
Matthew Timothy O’Mahony N-57
John P. O’Neill N-63
Peter J. O’Neill, Jr. S-52
Sean Gordon Corbett O’Neill N-25
Kevin M. O’Rourke S-17
Patrick J. O’Shea N-61
Robert William O’Shea N-60
Timothy Franklin O’Sullivan N-73
James A. Oakley N-9
Douglas E. Oelschlager S-20
Takashi Ogawa N-22
Albert Ogletree N-24
Philip Paul Ognibene S-36
John A. Ogonowski N-74
Joseph J. Ogren S-7
Samuel Oitice S-9
Gerald Michael Olcott N-11
Christine Anne Olender N-68
Linda Mary Oliva N-59
Edward K. Oliver N-61
Leah Elizabeth Oliver N-12
Eric Taube Olsen S-20
Jeffrey James Olsen S-5
Barbara K. Olson S-70
Maureen Lyons Olson N-7
Steven John Olson S-8
Toshihiro Onda S-44
Seamus L. Oneal N-37
Betty Ann Ong N-74
Michael C. Opperman S-61
Christopher T. Orgielewicz S-49
Margaret Quinn Orloske N-8
Virginia Anne Ormiston N-5
Ruben S. Ornedo S-70
Ronald Orsini N-56
Peter Keith Ortale S-33
Juan Ortega-Campos S-38
Jane Marie Orth N-75
Alexander Ortiz N-65
David Ortiz S-27
Emilio Pete Ortiz N-62
Pablo Ortiz N-67
Paul Ortiz, Jr. N-21
Sonia Ortiz N-64
Masaru Ose S-44
Elsy Carolina Osorio Oliva N-72
James R. Ostrowski N-46
Jason Douglas Oswald N-48
Michael John Otten S-16
Isidro D. Ottenwalder N-68
Michael Chung Ou S-48
Todd Joseph Ouida N-44
Jesus Ovalles N-69
Peter J. Owens, Jr. N-42
Adianes Oyola S-45

P

Angel M. Pabon, Jr. N-28
Israel Pabon, Jr. N-24
Roland Pacheco N-65
Michael Benjamin Packer N-22
Diana B. Padro S-76
Deepa Pakkala N-17
Jeffrey Matthew Palazzo S-5
Thomas Palazzo N-54
Richard A. Palazzolo N-54
Orio Joseph Palmer S-17
Frank Anthony Palombo S-21
Alan N. Palumbo N-51
Christopher Matthew Panatier N-45
Dominique Lisa Pandolfo N-14
Jonas Martin Panik S-73
Paul J. Pansini S-5
John M. Paolillo S-11
Edward Joseph Papa N-54
Salvatore T. Papasso S-26
James Nicholas Pappageorge S-14
Marie Pappalardo S-2
Vinod Kumar Parakat N-29
Vijayashanker Paramsothy S-57
Nitin Ramesh Parandkar N-19
Hardai Parbhu S-56
James Wendell Parham S-29
Debra Marie Paris S-53
George Paris N-33
Gye Hyong Park N-64
Philip Lacey Parker S-61
Michael Alaine Parkes N-12
Robert E. Parks, Jr. N-46
Hashmukh C. Parmar N-37
Robert Parro S-16
Diane Marie Parsons S-47
Leobardo Lopez Pascual N-70
Michael J. Pascuma, Jr. N-67
Jerrold Hughes Paskins N-17
Horace Robert Passananti N-11
Suzanne H. Passaro S-53
Avnish Ramanbhai Patel N-59
Dipti Patel N-33
Manish Patel S-30
Steven Bennett Paterson N-51
James Matthew Patrick N-51
Manuel D. Patrocino N-70
Bernard E. Patterson N-43
Clifford L. Patterson, Jr. S-74
Cira Marie Patti S-34
Robert E. Pattison N-63
James Robert Paul N-60
Patrice Paz S-61
Victor Hugo Paz N-69
Stacey Lynn Peak N-50
Richard Allen Pearlman S-27
Durrell V. Pearsall, Jr. S-11
Thomas Nicholas Pecorelli N-74
Thomas Pedicini N-42
Todd Douglas Pelino N-54
Mike Adrian Pelletier N-49
Anthony G. Peluso S-36
Angel R. Pena S-56
Robert Penninger S-69
Richard Al Penny S-49
Salvatore F. Pepe N-3
Carl Allen B. Peralta N-30
Robert David Peraza N-32
Jon A. Perconti, Jr. N-27
Alejo Perez N-67
Angel Perez, Jr. N-33
Angela Susan Perez N-32
Anthony Perez N-37
Ivan Antonio Perez S-41
Nancy E. Perez N-66
Berry Berenson Perkins N-76
Joseph John Perroncino N-32
Edward J. Perrotta N-50
Emelda H. Perry S-64
Glenn C. Perry, Sr. S-22
John William Perry S-24
Franklin Allan Pershep S-56
Danny Pesce N-55
Michael John Pescherine S-34
Davin N. Peterson N-28
Donald Arthur Peterson S-67
Jean Hoadley Peterson S-67
William Russell Peterson N-15
Mark James Petrocelli N-61
Philip Scott Petti S-16
Glen Kerrin Pettit S-25
Dominick A. Pezzulo S-29
Kaleen Elizabeth Pezzuti N-54
Kevin J. Pfeifer S-14
Tu-Anh Pham N-60
Kenneth John Phelan, Sr. S-13
Sneha Anne Philip S-66
Eugenia McCann Piantieri N-13
Ludwig John Picarro S-63
Matthew Picerno N-43
Joseph O. Pick S-41
Christopher J. Pickford S-12
Dennis J. Pierce S-47
Bernard Pietronico N-41
Nicholas P. Pietrunti N-30
Theodoros Pigis S-49
Susan Elizabeth Pinto N-35
Joseph Piskadlo N-63
Christopher Todd Pitman N-45
Joshua Michael Piver N-33
Robert R. Ploger III S-71
Zandra F. Ploger S-71
Joseph Plumitallo N-41
John M. Pocher N-41
William Howard Pohlmann S-47
Laurence Michael Polatsch N-27
Thomas H. Polhemus N-17
Steve Pollicino N-39
Susan M. Pollio S-33
Darin H. Pontell S-73
Joshua Iosua Poptean N-71
Giovanna Porras N-72
Anthony Portillo S-49
James Edward Potorti N-11
Daphne Pouletsos S-55
Richard N. Poulos N-30
Stephen Emanual Poulos S-60
Brandon Jerome Powell N-23
Scott Alan Powell S-75
Shawn Edward Powell S-20
Antonio Dorsey Pratt N-23
Gregory M. Preziose N-53
Wanda Ivelisse Prince S-42
Vincent A. Princiotta S-20
Kevin M. Prior S-22
Everett Martin Proctor III N-48
Carrie Beth Progen S-59
David Lee Pruim S-62
Richard A. Prunty S-5
John Foster Puckett N-68
Robert David Pugliese N-10
Edward F. Pullis S-62
Patricia Ann Puma N-64
Jack D. Punches S-73
Hemanth Kumar Puttur N-17
Joseph J. Pycior, Jr. S-72
Edward R. Pykon N-61

Q

Christopher Quackenbush S-52
Lars Peter Qualben N-15
Lincoln Quappé S-16
Beth Ann Quigley N-27
Patrick J. Quigley IV S-4
Michael T. Quilty S-15
James Francis Quinn N-30
Ricardo J. Quinn S-18

R

Carol Millicent Rabalais S-61
Christopher Peter Anthony
Racaniello N-32
Leonard J. Ragaglia S-10
Eugene J. Raggio S-24
Laura Marie Ragonese-Snik S-54
Michael Paul Ragusa S-23
Peter Frank Raimondi N-59
Harry A. Raines N-36
Lisa J. Raines S-71
Ehtesham Raja S-39
Valsa Raju N-63
Edward J. Rall S-17
Lukas Rambousek N-58
Maria Ramirez S-45
Harry Ramos N-63
Vishnoo Ramsaroop N-64
Deborah A. Ramsaur S-1
Lorenzo E. Ramzey S-55
Alfred Todd Rancke S-50
Adam David Rand S-8
Jonathan C. Randall N-6
Shreyas S. Ranganath N-7
Anne T. Ransom N-18
Faina Rapoport N-17
Rhonda Sue Rasmussen S-76
Robert A. Rasmussen S-37
Amenia Rasool N-11
R. Mark Rasweiler N-9
Marsha D. Ratchford S-72
David Alan James Rathkey S-46
William Ralph Raub N-25
Gerard F. Rauzi S-47
Alexey Razuvaev S-32
Gregory Reda N-6
Sarah Anne Redheffer N-20
Michele Marie Reed S-62
Judith Ann Reese N-67
Donald J. Regan S-14
Robert M. Regan S-10
Thomas Michael Regan S-54
Christian Michael Otto Regenhard S-23
Howard Reich S-49
Gregg Reidy N-28
James Brian Reilly S-34
Kevin O. Reilly S-20
Timothy E. Reilly N-11
Joseph Reina, Jr. N-33
Thomas Barnes Reinig N-55
Frank Bennett Reisman N-28
Joshua Scott Reiss N-51
Karen Renda N-18
John Armand Reo N-40
Richard Cyril Rescorla S-46
John Thomas Resta N-62
Sylvia San Pio Resta and her
unborn child N-62
Martha M. Reszke S-1
David E. Retik N-1
Todd H. Reuben S-69
Luis Clodoaldo Revilla Mier S-65
Eduvigis Reyes, Jr. N-72
Bruce Albert Reynolds S-28
John Frederick Rhodes S-55
Francis Saverio Riccardelli S-25
Rudolph N. Riccio N-34
Ann Marie Riccoboni N-64
David Harlow Rice S-52
Eileen Mary Rice N-6
Kenneth Frederick Rice III N-13
CeCelia E. Richard S-76
Vernon Allan Richard S-20
Claude Daniel Richards S-25
Gregory David Richards N-39
Michael Richards N-63
Venesha Orintia Richards N-6
Jimmy Riches S-21
Alan Jay Richman N-11
John M. Rigo N-10
Frederick Charles Rimmele III S-2
Rose Mary Riso S-47
Moises N. Rivas N-67
Joseph R. Rivelli, Jr. S-22
Carmen Alicia Rivera S-42
Isaias Rivera N-63
Juan William Rivera N-72
Linda Ivelisse Rivera N-15
David E. Rivers N-20
Joseph R. Riverso N-51
Paul V. Rizza S-40
John Frank Rizzo S-64
Stephen Louis Roach N-54
Joseph Roberto S-35
Leo Arthur Roberts N-43
Michael E. Roberts S-21
Michael Edward Roberts S-16
Donald Walter Robertson, Jr. N-45
Jeffrey Robinson N-16
Michell Lee Jean Robotham S-56
Donald Arthur Robson N-39
Antonio A. Rocha N-51
Raymond James Rocha N-44
Laura Rockefeller N-20
John Michael Rodak S-51
Antonio José Rodrigues S-29
Anthony Rodriguez S-22
Carmen Milagros Rodriguez S-58
Gregory E. Rodriguez N-48
Marsha A. Rodriguez N-6
Mayra Valdes Rodriguez S-59
Richard Rodriguez S-29
David Bartolo Rodriguez-Vargas N-69
Matthew Rogan S-14
Jean Destrehan Rogér N-74
Karlie Rogers N-20
Scott William Rohner N-44
Keith Michael Roma S-25
Joseph M. Romagnolo N-24
Efrain Romero, Sr. S-44
Elvin Romero N-28
James A. Romito S-27
Sean Paul Rooney S-57
Eric Thomas Ropiteau N-33
Aida Rosario N-18
Angela Rosario N-29
Mark H. Rosen S-52
Brooke David Rosenbaum N-33
Linda Rosenbaum N-12
Sheryl Lynn Rosenbaum N-47
Lloyd Daniel Rosenberg N-40
Mark Louis Rosenberg N-7
Andrew Ira Rosenblum N-40
Joshua M. Rosenblum N-27
Joshua Alan Rosenthal S-41
Richard David Rosenthal N-48
Philip Martin Rosenzweig N-2
Daniel Rosetti S-64
Richard Barry Ross N-2
Norman S. Rossinow S-61
Nicholas P. Rossomando S-5
Michael Craig Rothberg N-29
Donna Marie Rothenberg S-60
Mark David Rothenberg S-68
James Michael Roux S-2
Nicholas Charles Alexander Rowe N-23
Edward V. Rowenhorst S-76
Judy Rowlett S-1
Timothy Alan Roy, Sr. S-24
Paul G. Ruback S-21
Ronald J. Ruben S-34
Joanne Rubino N-14
David M. Ruddle S-66
Bart Joseph Ruggiere N-49
Susan A. Ruggiero N-13
Adam Keith Ruhalter N-47
Gilbert Ruiz N-69
Robert E. Russell S-1
Stephen P. Russell S-7
Steven Harris Russin N-52
Michael Thomas Russo, Sr. S-7
Wayne Alan Russo N-6
William R. Ruth S-74
Edward Ryan N-61
John Joseph Ryan S-34
Jonathan Stephan Ryan S-30
Matthew L. Ryan S-9
Tatiana Ryjova S-48
Christina Sunga Ryook N-49

S

Thierry Saada N-41
Jason Elazar Sabbag S-42
Thomas E. Sabella S-17
Scott H. Saber N-23
Charles E. Sabin, Sr. S-71
Joseph Francis Sacerdote N-44
Jessica Leigh Sachs N-74
Francis John Sadocha N-24
Jude Elias Safi N-26
Brock Joel Safronoff N-7
Edward Saiya S-45
John Patrick Salamone N-40
Marjorie C. Salamone S-75
Hernando Rafael Salas S-38
Juan G. Salas N-70
Esmerlin Antonio Salcedo S-65
John Pepe Salerno N-30
Rahma Salie and her unborn child N-1
Richard L. Salinardi, Jr. S-37
Wayne John Saloman N-35
Nolbert Salomon S-46
Catherine Patricia Salter S-60
Frank G. Salvaterra S-51
Paul Richard Salvio N-62
Samuel Robert Salvo, Jr. S-59
Carlos Alberto Samaniego N-42
John P. Sammartino S-71
James Kenneth Samuel, Jr. N-60
Michael San Phillip S-51
Hugo M. Sanay S-31
Alva Cynthia Jeffries Sanchez N-16
Jacquelyn Patrice Sanchez N-47
Jesus Sanchez S-2
Raymond Sanchez S-66
Eric M. Sand N-28
Stacey Leigh Sanders N-3
Herman S. Sandler S-52
Jim Sands, Jr. N-36
Ayleen J. Santiago N-65
Kirsten Reese Santiago N-67
Maria Theresa Concepcion
Santillan N-36
Susan Gayle Santo N-9
Christopher A. Santora S-10
John August Santore S-5
Mario L. Santoro S-26
Rafael Humberto Santos N-34
Rufino C.F. Santos III N-17
Victor J. Saracini S-2
Kalyan K. Sarkar N-66
Chapelle Renee Stewart Sarker N-14
Paul F. Sarle N-56
Deepika Kumar Sattaluri N-18
Gregory Thomas Saucedo S-6
Susan M. Sauer N-11
Anthony Savas N-67
Vladimir Savinkin N-48
John Michael Sbarbaro N-56
David M. Scales S-74
Robert Louis Scandole N-52
Michelle Scarpitta S-31
Dennis Scauso S-8
John Albert Schardt S-12
John G. Scharf S-63
Fred C. Scheffold, Jr. S-6
Angela Susan Scheinberg N-64
Scott Mitchell Schertzer N-33
Sean Schielke N-44
Steven Francis Schlag N-51
Robert A. Schlegel S-72
Jon Schlissel S-48
Karen Helene Schmidt S-46
Ian Schneider N-52
Thomas G. Schoales S-21
Marisa Dinardo Schorpp N-49
Frank G. Schott, Jr. N-13
Gerard Patrick Schrang S-14
Jeffrey H. Schreier N-31
John T. Schroeder N-59
Susan Lee Schuler S-53
Edward W. Schunk N-55
Mark Evan Schurmeier N-22
John Burkhart Schwartz N-40
Mark Schwartz S-26
Adriane Victoria Scibetta N-48
Raphael Scorca N-3
Janice M. Scott S-1
Randolph Scott S-31
Christopher Jay Scudder S-37
Arthur Warren Scullin N-14
Michael H. Seaman N-46
Margaret M. Seeliger S-53
Anthony Segarra N-64
Carlos Segarra N-72
Jason M. Sekzer N-31
Matthew Carmen Sellitto N-46
Michael L. Selves S-75
Howard Selwyn S-31
Larry John Senko N-65
Arturo Angelo Sereno N-58
Frankie Serrano S-45
Marian H. Serva S-75
Alena Sesinova N-3
Adele Christine Sessa N-27
Sita Nermalla Sewnarine S-43
Karen Lynn Seymour N-73
Davis Grier Sezna, Jr. S-52
Thomas Joseph Sgroi N-8
Jayesh Shantilal Shah N-37
Khalid M. Shahid N-33
Mohammed Shajahan N-14
Gary Shamay N-31
Earl Richard Shanahan N-5
Dan F. Shanower S-72
Neil G. Shastri N-58
Kathryn Anne Shatzoff N-10
Barbara A. Shaw N-20
Jeffrey James Shaw N-24
Robert John Shay, Jr. N-53
Daniel James Shea N-38
Joseph Patrick Shea N-38
Kathleen Shearer S-3
Robert M. Shearer S-3
Linda June Sheehan S-50
Hagay Shefi N-21
Antionette M. Sherman S-75
John Anthony Sherry S-30
Atsushi Shiratori N-44
Thomas Joseph Shubert N-29
Mark Shulman N-10
See Wong Shum N-71
Allan Abraham Shwartzstein N-30
Clarin Shellie Siegel-Schwartz S-53
Johanna Sigmund N-60
Dianne T. Signer and her unborn child N-60
Gregory Sikorsky S-12
Stephen Gerard Siller S-5
David Silver N-29
Craig A. Silverstein S-50
Nasima H. Simjee S-41
Bruce Edward Simmons S-51
Diane M. Simmons S-69
Donald D. Simmons S-76
George W. Simmons S-69
Arthur Simon N-58
Kenneth Alan Simon N-58
Michael J. Simon N-49
Paul Joseph Simon N-17
Marianne Liquori Simone N-35
Barry Simowitz S-48
Jane Louise Simpkin S-2
Jeff Lyal Simpson S-27
Cheryle D. Sincock S-75
Khamladai Khami Singh N-68
Roshan Ramesh Singh N-68
Thomas E. Sinton III N-55
Peter A. Siracuse N-39
Muriel F. Siskopoulos S-33
Joseph Michael Sisolak N-6
John P. Skala S-27
Francis Joseph Skidmore, Jr. S-32
Toyena Corliss Skinner N-72
Paul Albert Skrzypek N-50
Christopher Paul Slattery N-30
Vincent Robert Slavin N-27
Robert F. Sliwak N-56
Paul Kenneth Sloan S-33
Stanley S. Smagala, Jr. S-15
Wendy L. Small N-54
Gregg H. Smallwood S-72
Catherine T. Smith N-16
Daniel Laurence Smith S-31
Gary F. Smith S-1
George Eric Smith S-39
Heather Lee Smith N-75
James Gregory Smith N-40
Jeffrey R. Smith S-52
Joyce Patricia Smith N-24
Karl T. Smith, Sr. N-43
Kevin Joseph Smith S-9
Leon Smith, Jr. S-11
Moira Ann Smith S-24
Monica Rodriguez Smith and her unborn child N-73
Rosemary A. Smith N-73
Bonnie Shihadeh Smithwick N-61
Rochelle Monique Snell S-49
Christine Ann Snyder S-67
Dianne Bullis Snyder N-74
Leonard J. Snyder, Jr. S-54
Astrid Elizabeth Sohan N-6
Sushil S. Solanki N-34
Rubén Solares N-31
Naomi Leah Solomon N-21
Daniel W. Song N-56
Mari-Rae Sopper S-69
Michael Charles Sorresse N-5
Fabian Soto N-63
Timothy Patrick Soulas N-44
Gregory Thomas Spagnoletti S-35
Donald F. Spampinato, Jr. N-39
Thomas Sparacio S-32
John Anthony Spataro N-10
Robert W. Spear, Jr. S-19
Robert Speisman S-70
Maynard S. Spence, Jr. N-6
George Edward Spencer III S-31
Robert Andrew Spencer N-45
Mary Rubina Sperando N-21
Frank Spinelli N-44
William E. Spitz N-42
Joseph Patrick Spor, Jr. S-15
Klaus Johannes Sprockamp S-47
Saranya Srinuan N-52
Fitzroy St. Rose N-72
Michael F. Stabile S-32
Lawrence T. Stack S-18
Timothy M. Stackpole S-20
Richard James Stadelberger S-40
Eric Adam Stahlman N-46
Gregory Stajk S-17
Alexandru Liviu Stan N-34
Corina Stan N-34
Mary Domenica Stanley N-14
Anthony Starita N-42
Jeffrey Stark S-13
Derek James Statkevicus S-34
Patricia J. Statz S-75
Craig William Staub S-34
William V. Steckman N-67
Eric Thomas Steen S-30
William R. Steiner N-12
Alexander Robbins Steinman N-25
Edna L. Stephens S-1
Andrew Stergiopoulos N-45
Andrew J. Stern N-43
Norma Lang Steuerle S-69
Martha Jane Stevens S-62
Michael James Stewart N-61
Richard H. Stewart, Jr. N-41
Sanford M. Stoller N-17
Douglas Joel Stone N-74
Lonny Jay Stone N-63
Jimmy Nevill Storey N-12
Timothy Stout N-35
Thomas Strada N-40
James J. Straine, Jr. N-52
Edward W. Straub S-55
George J. Strauch, Jr. S-60
Edward Thomas Strauss S-24
Steven R. Strauss S-46
Larry L. Strickland S-74
Steven F. Strobert N-55
Walwyn Wellington Stuart, Jr. S-29
Benjamin Suarez S-11
David Scott Suarez N-17
Ramon Suarez S-25
Dino Xavier Suarez Ramirez N-75
Yoichi Sumiyama Sugiyama S-44
William Christopher Sugra N-34
Daniel Thomas Suhr S-14
David Marc Sullins S-25
Christopher P. Sullivan S-22
Patrick Sullivan N-40
Thomas G. Sullivan N-67
Hilario Soriano Sumaya, Jr. N-8
James Joseph Suozzo N-41
Colleen M. Supinski S-51
Robert Sutcliffe N-67
Seline Sutter N-65
Claudia Suzette Sutton N-48
John Francis Swaine N-39
Kristine M. Swearson N-34
Brian David Sweeney S-2
Brian Edward Sweeney S-9
Madeline Amy Sweeney N-74
Kenneth J. Swenson N-48
Thomas F. Swift S-46
Derek Ogilvie Sword S-35
Kevin Thomas Szocik S-35
Gina Sztejnberg N-15
Norbert P. Szurkowski N-50

T

Harry Taback N-4
Joann C. Tabeek N-35
Norma C. Taddei N-13
Michael Taddonio S-31
Keiichiro Takahashi S-32
Keiji Takahashi S-44
Phyllis Gail Talbot N-11
Robert R. Talhami N-27
John Talignani S-68
Sean Patrick Tallon S-5
Paul Talty S-24
Maurita Tam S-53
Rachel Tamares S-61
Hector Rogan Tamayo S-45
Michael Andrew Tamuccio N-59
Kenichiro Tanaka S-44
Rhondelle Cherie Tankard S-59
Michael Anthony Tanner N-25
Dennis Gerard Taormina, Jr. N-12
Kenneth Joseph Tarantino N-46
Allan Tarasiewicz S-7
Michael C. Tarrou S-2
Ronald Tartaro N-60
Deborah Tavolarella S-2
Darryl Anthony Taylor N-72
Donnie Brooks Taylor S-59
Hilda E. Taylor S-70
Kip P. Taylor S-74
Leonard E. Taylor S-71
Lorisa Ceylon Taylor N-15
Michael Morgan Taylor N-40
Sandra C. Taylor S-1
Sandra Dawn Teague S-69
Karl W. Teepe S-71
Paul A. Tegtmeier S-21
Yeshavant Moreshwar Tembe S-47
Anthony Tempesta N-53
Dorothy Pearl Temple S-47
Stanley L. Temple N-31
David Gustaf Peter Tengelin N-4
Brian John Terrenzi N-47
Lisa Marie Terry N-11
Goumatie Thackurdeen S-41
Harshad Sham Thatte N-17
Michael Theodoridis N-1
Thomas F. Theurkauf, Jr. S-36
Lesley Anne Thomas N-49
Brian Thomas Thompson S-44
Clive Ian Thompson S-32
Glenn Thompson N-43
Nigel Bruce Thompson N-44
Perry A. Thompson S-60
Vanavah Alexei Thompson N-64
William H. Thompson S-26
Eric Raymond Thorpe S-35
Nichola Angela Thorpe S-33
Tamara C. Thurman S-74
Sal Edward Tieri, Jr. N-10
John Patrick Tierney S-13
Mary Ellen Tiesi S-62
William Randolph Tieste N-25
Kenneth Tietjen S-29
Stephen Edward Tighe N-56
Scott Charles Timmes N-62
Michael E. Tinley N-15
Jennifer M. Tino N-11
Robert Frank Tipaldi N-26
John James Tipping II S-10
David Tirado N-23
Hector Luis Tirado, Jr. S-15
Michelle Lee Titolo N-48
Alicia Nicole Titus S-2
John J. Tobin N-8
Richard J. Todisco S-51
Otis V. Tolbert S-73
Vladimir Tomasevic N-22
Stephen Kevin Tompsett N-22
Thomas Tong S-39
Doris Torres S-42
Luis Eduardo Torres N-51
Amy Elizabeth Toyen N-23
Christopher Michael Traina N-63
Daniel Patrick Trant N-43
Abdoul Karim Traore N-68
Glenn J. Travers, Sr. N-32
Walter Philip Travers N-56
Felicia Yvette Traylor-Bass N-65
James Anthony Trentini N-2
Mary Barbara Trentini N-2
Lisa L. Trerotola N-67
Karamo Baba Trerra S-39
Michael Angel Trinidad N-31
Francis Joseph Trombino S-38
Gregory James Trost S-33
Willie Q. Troy S-1
William P. Tselepis, Jr. N-45
Zhanetta Valentinovna Tsoy N-13
Michael Patrick Tucker N-28
Lance Richard Tumulty S-31
Ching Ping Tung S-44
Simon James Turner N-20
Donald Joseph Tuzio S-39
Robert T. Twomey N-67
Jennifer Lynn Tzemis N-58

U

John G. Ueltzhoeffer N-15
Tyler Victor Ugolyn N-59
Michael A. Uliano N-56
Jonathan J. Uman N-38
Anil Shivhari Umarkar N-34
Allen V. Upton N-39
Diane Marie Urban S-47

V

John Damien Vaccacio N-43
Bradley Hodges Vadas S-35
William Valcarcel S-48
Felix Antonio Vale N-32
Ivan Vale N-32
Benito Valentin N-18
Santos Valentin, Jr. S-25
Carlton Francis Valvo II N-46
Pendyala Vamsikrishna N-74
Erica H. Van Acker S-55
Kenneth W. Van Auken N-52
R. Bruce Van Hine S-13
Daniel M. Van Laere S-62
Edward Raymond Vanacore S-41
Jon Charles Vandevander N-62
Frederick T. Varacchi N-38
Gopalakrishnan Varadhan N-46
David Vargas S-49
Scott C. Vasel N-16
Azael Ismael Vasquez N-24
Ronald J. Vauk S-73
Arcangel Vazquez S-41
Santos Vazquez N-31
Peter Vega S-11
Sankara Sastry Velamuri S-47
Jorge Velazquez S-47
Lawrence G. Veling S-7
Anthony Mark Ventura S-41
David Vera S-31
Loretta Ann Vero N-18
Christopher James Vialonga N-62
Matthew Gilbert Vianna N-34
Robert Anthony Vicario N-24
Celeste Torres Victoria N-20
Joanna Vidal N-20
John T. Vigiano II S-23
Joseph Vincent Vigiano S-23
Frank J. Vignola, Jr. N-48
Joseph Barry Vilardo N-28
Claribel Villalobos Hernandez N-23
Sergio Gabriel Villanueva S-23
Chantal Vincelli N-21
Melissa Renée Vincent N-65
Francine Ann Virgilio S-61
Lawrence Virgilio S-20
Joseph Gerard Visciano S-34
Joshua S. Vitale N-26
Maria Percoco Vola S-62
Lynette D. Vosges S-59
Garo H. Voskerijian N-13
Alfred Anton Vukosa N-35

W

Gregory Kamal Bruno Wachtler N-60
Karen J. Wagner S-74
Mary Alice Wahlstrom N-1
Honor Elizabeth Wainio S-67
Gabriela Silvina Waisman N-23
Wendy Alice Rosario Wakeford N-53
Courtney Wainsworth Walcott S-46
Victor Wald N-63
Kenneth E. Waldie N-2
Benjamin James Walker N-16
Glen Wall N-57
Mitchel Scott Wallace S-26
Peter Guyder Wallace N-6
Robert Francis Wallace S-12
Roy Michael Wallace N-44
Jeanmarie Wallendorf S-36
Matthew Blake Wallens N-39
Meta L. Waller S-1
John Wallice, Jr. N-30
Barbara P. Walsh N-9
Jim Walsh N-34
Jeffrey P. Walz S-14
Ching Wang S-44
Weibin Wang N-36
Michael Warchola S-6
Stephen Gordon Ward N-48
Timothy Ray Ward S-2
James A. Waring N-31
Brian G. Warner N-37
Derrick Christopher Washington S-66
Charles Waters N-32
James Thomas Waters, Jr. S-34
Patrick J. Waters S-8
Kenneth Thomas Watson S-21
Michael Henry Waye N-8
Todd Christopher Weaver S-43
Walter Edward Weaver S-25
Nathaniel Webb S-28
Dinah Webster N-20
William Michael Weems S-4
Joanne Flora Weil S-45
Michael T. Weinberg S-17
Steven Weinberg S-37
Scott Jeffrey Weingard N-27
Steven George Weinstein N-13
Simon Weiser N-65
David M. Weiss S-8
David Thomas Weiss N-46
Chin Sun Pak Wells S-74
Vincent Michael Wells N-44
Deborah Jacobs Welsh S-67
Timothy Matthew Welty S-7
Christian Hans Rudolf Wemmers N-21
Ssu-Hui Wen N-34
John Joseph Wenckus N-2
Oleh D. Wengerchuk S-65
Peter M. West N-43
Whitfield West, Jr. N-35
Meredith Lynn Whalen N-60
Eugene Michael Whelan S-12
Adam S. White N-50
Edward James White III S-13
James Patrick White N-39
John Sylvester White N-63
Kenneth Wilburn White, Jr. N-24
Leonard Anthony White S-66
Malissa Y. White N-15
Maudlyn A. White S-74
Sandra L. White S-75
Wayne White N-9
Leanne Marie Whiteside S-59
Mark P. Whitford S-15
Leslie A. Whittington S-69
Michael T. Wholey S-29
Mary Lenz Wieman S-59
Jeffrey David Wiener N-12
William J. Wik S-60
Alison Marie Wildman N-61
Glenn E. Wilkinson S-14
Ernest M. Willcher S-75
John Charles Willett N-50
Brian Patrick Williams N-41
Candace Lee Williams N-75
Crossley Richard Williams, Jr. S-41
David J. Williams N-64
David Lucian Williams S-73
Debbie L. Williams S-54
Dwayne Williams S-74
Kevin Michael Williams S-50
Louie Anthony Williams N-66
Louis Calvin Williams III S-37
John P. Williamson S-8
Donna Ann Wilson S-56
William Eben Wilson S-61
David Harold Winton S-35
Glenn J. Winuk S-27
Thomas Francis Wise N-9
Alan L. Wisniewski S-52
Frank Paul Wisniewski N-53
David Wiswall S-55
Sigrid Charlotte Wiswe N-18
Michael R. Wittenstein N-52
Christopher W. Wodenshek N-49
Martin Phillips Wohlforth S-52
Katherine Susan Wolf N-3
Jennifer Yen Wong N-20
Siucheung Steve Wong N-4
Yin Ping Wong S-60
Yuk Ping Wong S-48
Brent James Woodall S-33
James John Woods N-26
Marvin Roger Woods S-73
Patrick J. Woods S-64
Richard Herron Woodwell S-35
David Terence Wooley S-9
John Bentley Works S-34
Martin Michael Wortley N-46
Rodney James Wotton S-43
William Wren, Ret. S-22
John W. Wright, Jr. S-50
Neil Robin Wright N-46
Sandra Lee Wright S-57

Y

Jupiter Yambem N-69
John D. Yamnicky, Sr. S-71
Suresh Yanamadala N-16
Vicki Yancey S-70
Shuyin Yang S-70
Matthew David Yarnell S-41
Myrna Yaskulka N-60
Shakila Yasmin N-15
Olabisi Shadie Layeni Yee N-67
Kevin W. Yokum S-72
Edward P. York N-49
Kevin Patrick York S-31
Raymond R. York S-20
Suzanne Martha Youmans S-54
Barrington Leroy Young, Jr. S-31
Donald McArthur Young S-72
Edmond G. Young, Jr. S-74
Jacqueline Young N-3
Lisa L. Young S-1
Elkin Yuen N-61

Z

Joseph C. Zaccoli N-43
Adel Agayby Zakhary N-63
Arkady Zaltsman S-63
Edwin J. Zambrana, Jr. S-49
Robert Alan Zampieri N-62
Mark Zangrilli S-63
Christopher R. Zarba, Jr. N-1
Ira Zaslow S-46
Kenneth Albert Zelman N-19
Abraham J. Zelmanowitz N-65
Martin Morales Zempoaltecatl N-68
Zhe Zeng S-37
Marc Scott Zeplin N-27
Jie Yao Justin Zhao S-39
Yuguang Zheng S-70
Ivelin Ziminski N-5
Michael Joseph Zinzi N-14
Charles Alan Zion N-25
Julie Lynne Zipper S-49
Salvatore J. Zisa N-5
Prokopios Paul Zois N-18
Joseph J. Zuccala S-44
Andrew Steven Zucker S-45
Igor Zukelman S-43

“Modest” Overstatements of Amount Due and Interest Rate Actionable Under FDCPA, Ninth Circuit Rules | The National Law Review

“Modest” Overstatements of Amount Due and Interest Rate Actionable Under FDCPA, Ninth Circuit Rules Friday, September 1, 2017 A debt-collection law firm’s overstatements in a state court complaint of $3,000 in the principal amount due and 0.315 percent in the interest rate were actionable under the Fair Debt Collection Practices Act (FDCPA) as material false statements, the U.S. Court of Appeals for the Ninth Circuit has ruled.  In Afewerki v. Anaya Law Group, the creditor that hired the law firm to collec

Source: “Modest” Overstatements of Amount Due and Interest Rate Actionable Under FDCPA, Ninth Circuit Rules | The National Law Review

Business Collection – Before you Hire a Lawyer

Business CollectionBusiness Collection – Before you Hire a Lawyer

One of the most frustrating parts of owning your own business is getting paid. This is, unfortunately part of doing business for many businesses.  In a perfect world, we would be able to peer into a customer’s eyes and immediately see if he will timely pay or on the verge of financial disaster.  Though there are steps we can take to help on the front end, such as financial references and credit checks, the reality is there will always be situations where your customer is either unwilling or unable to make payment.

Inevitably, nearly all businesses will find themselves with an outstanding invoice.  Businesses should have an active system in place to identify those invoices as soon as they become late.  The faster you can identify and contact the customer, the more likely you are to be paid in full, and of course, maintain your necessary cash flow.  The first 90-days are critical in getting paid. To that end, payment reminders should be sent as soon as the late-paying customers are identified.  There is no reason to batch past-due notices and reminders to the end of the month.

The Phone Call

Quick, effective and cooperative communication with the customer is important.  A phone call followed by a polite letter can be very effective.  In your phone calls, even though you’re dealing with someone not paying, try to remember that you are still representing your business and its reputation in the community.  Avoid demeaning or using accusatory language in the call.  Instead, try a collaborative approach to see what options may be available to help your customer ‘do the right thing.’

The Letter

Your collection letters should be clear and concise.  They should clearly state the amount due, the accumulating interest, if any, and in a non-threatening manner the repercussions of not making payment arrangements in some specifically defined time.  And, of course, keep copies of these letters which may be needed should you be forced to file suit.

Of course, you may wish to have an attorney assist.  An attorney can assist at any point in this process, but additional fees will be incurred once that assistance is sought.  However, if your initial efforts do not yield results, an attorney can effectively and quickly seek recovery through moving the matter from letters and phone calls to filing a lawsuit seeking a judgment for the amount due and possibly the additional attorney’s fees and court costs. With a judgment in hand, the attorney can seek to garnish wages, bank accounts as well as other potential collection avenues to satisfy what amount owed.

Business Collection

If you’re business is faced with a non-paying customer, contact Jonathan S. Masters at Holcomb Dunbar Attorneys to discuss and assist in your collection efforts. 662.234.8775

Eclipse Not Delay Trial Says Florida Judge

2017 Eclipse

Florida Judge says the trial must go on, despite celestial events.

Judge Merryday denied the United States Attorney’s motion, that “… boldly moves (where no AUSA has moved before) to postpone a trial because an agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, has pre-paid the cost of visiting the zone of “totality” of a solar eclipse.”  Unimpressed with the motion, and apparently the eclipse itself, the opinion notes, “An eclip

 

se is just another astral event, precisely predictable since the day the Babylonians discovered the governing formula (although some contend for an earlier discovery).

Here’s the full opinion:

 

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

 

UNITED STATES OF AMERICA

v. CASE NO. 8:17-cr-266-T-23JSS

JOSEPH BISHOP
____________________________________/

ORDER

Definitely recurrent, sometimes consequential, and occasionally spectacular,

the solar eclipse understandably occupies a provocative and luminous place in

history and in art. For example, Herodotus reports that a solar eclipse during the

war between the Medes and the Lydians caused the combatants, who interpreted the

eclipse as a divine omen, to suspend hostilities and to negotiate peace. In Borodin’s

magnificent opera, an eclipse portends disaster for Prince Igor’s military campaign

against the Polovtsians. In a popular 1970s song, the splendid Carly Simon

introduced the attendance of a former suitor (reportedly the actor Warren Beatty) at

a solar eclipse as probative evidence of his putatively insufferable vanity:

Well I hear you went to Saratoga
And your horse, naturally, won
Then you flew your Learjet up to Nova Scotia
To see the total eclipse of the sun
Well, you’re where you should be all the time
And when you’re not, you’re with some underworld spy
Or the wife of a close friend,
Wife of a close friend, and
You’re so vain
You probably think this song is about you
On a higher plane, Wordsworth wrote about an eclipse in 1820:

High on her speculative tower
Stood Science waiting for the hour
When Sol was destined to endure
That darkening of his radiant face

The solar eclipse is no longer mysterious, supernatural, foreboding, or

ominous (or even “total”; owing to the solar corona, the darkness of a “total” eclipse

is only partial). An eclipse is just another astral event, precisely predictable since the

day the Babylonians discovered the governing formula (although some contend for

an earlier discovery).

On this occasion, an Assistant United States Attorney boldly moves (where no

AUSA has moved before) to postpone a trial because an agent of the Bureau of

Alcohol, Tobacco, Firearms, and Explosives, has pre-paid the cost of visiting the

zone of “totality” of a solar eclipse that will occur on August 21 (about the eclipse,

the motion oddly uses the phrase “scheduled to occur,” as if someone arbitrarily set

the eclipse, as an impresario sets a performer, to appear at a chosen time and place,

subject always to some unstated exigency).* Cruel fate has dictated that the August

21 eclipse will occur during the trial of an action in which the agent is a principal

participant on behalf of the United States.

In any particular month, about four-hundred actions pend before each active

district judge in the Middle District of Florida; each action typically involves several

lawyers, at least two parties, and an array of witnesses. A trial prompts the clerk to

summon scores of potential jurors. The present motion proposes to subordinate the

time and resources of the court, of the opposing counsel, of the witnesses, and of the

jurors to one person’s aspiration to view a “total” solar eclipse for no more than two

minutes and forty-two seconds. To state the issue distinctly is to resolve the issue

decisively.

When an indispensable participant, knowing that a trial is imminent, pre-pays

for some personal indulgence, that participant, in effect, lays in a bet. This time,

unlike Carly Simon’s former suitor, whose “horse, naturally, won,” this bettor’s

horse has — naturally — lost. The motion (Doc. 31) is DENIED.

ORDERED in Tampa, Florida, on August 18, 2017.

 

  • According to the motion of the United States, a total solar eclipse last occurred in June
    1918. (Doc. 31 at 2) But total eclipses occur far more frequently than the United States claims; the
    National Aeronautics and Space Administration identifies six opportunities in the last decade to
    view a total eclipse. Eclipses and Transits, Nat’l Aeronautics & Space Admin., available at
    http://www.nasa.gov/eclipse.

How to Avoid Credit Card Skimmers

The Oxford Police Department is advising residents to be on the lookout for “skimming” devices at area gas pumps.  This certainly got our attention and particularly got us wondering how do you protect ourselves from theft.  

A credit card skimmer is a portable capture device that is attached in front of or on top of the legitimate scanner. The skimmer passively records the card data as you insert your credit card into the real scanner.

Credit card thieves will often temporarily affix the card skimmer device to gas pumps, ATMs, or other convenient self-service point-of-sale terminals. The bad guys like gas pumps and ATMs because they are easy to retrieve their skimmers from and they generally receive a lot of traffic.

Skimmer technology has become cheaper and more sophisticated over the years. Some skimmers capture the card information using a magnetic reader and use a miniature camera to record you typing in your PIN number. Some skimmers will even go so far as to place a secondary keypad over top of the actual keypad. The secondary keypad captures your PIN number and records it while passing your input to the real keypad.

How can you detect and avoid having your credit card skimmed at the ATM or gas pump?

1. Inspect The Card Reader And The Area Near The PIN Pad

Many banks and merchants realize that skimming is on the rise and will often post a picture of what the real device is supposed to look like so you will see that there is something attached that is not supposed to be there if a skimmer is present.

 Of course, a card skimmer could put a fake picture over the real picture so this isn’t a fail-safe way to spot a skimmer.

To see what some skimmers look like check out these examples of card skimmers so you’ll have an idea of what to look for.

Most skimming devices are designed to be temporarily affixed to the ATM or gas pump so they can be easily retrieved by the bad guys once they’ve collected a batch of cardholder data.

If you think the scanning device doesn’t look like it matches the machine’s color and style, it might be a skimmer.

2. Look At Other Nearby Gas Pumps or ATM Card Readers to See if They Match The One You Are Using.

Unless skimmers are running a large operation, they probably are only skimming at one gas pump at a time at the station you are using. Look at the pump next to yours to see if the card reader and setup look different. If they do then you might have just spotted a skimmer.

3. Trust Your Instincts. If in Doubt, Use Another Pump or ATM Somewhere Else.

Our brains are excellent at recognizing things that seem out of place. If you get a sense that something looks off about the ATM you are about to use, you might be better off using one that you feel more comfortable with.

4. Avoid Using Your PIN Number at the Gas Pump.

When you pay at the pump with your debit/credit card, you usually have the option to use it as a credit or a debit card. It’s best to choose the credit option that allows you to avoid entering your PIN in sight of a Card Skimmer camera. Even if there is not a card skimmer camera in sight someone could be watching you enter your PIN and could subsequently mug you and take your card to the nearest ATM to withdraw some cash.

When you use it as a credit card you usually only have to enter your billing ZIP code as verification which is much safer than putting in your PIN.

5. Keep an Eye on Your Accounts

If you suspect that you might have had your card skimmed. Keep an eye on your account balance and report any suspicious activity immediately.

Source: How to Avoid Credit Card Skimmers

MISSISSIPPI EXPUNGEMENT LAW SUMMARY

MISSISSIPPI EXPUNGEMENT LAW SUMMARY

BY: Geoffrey Calderaro

A criminal record can create many challenges when trying to move forward with your life.  When an arrest is made, a record is also created that others may find – even if the charge is later dismissed.  This most frequently occurs when one applies for a job requiring a background check.  A criminal record or prior arrest can be a barrier to achieving one’s goals in many other instances, such as gaining acceptance to certain schools or universities and in obtaining loans to name a few.  In many instances, these prior arrests or convictions can be “erased” through the expungement process

If you have a prior arrest or conviction, please contact us at (662) 234-8775 to discuss the possibility of expungement with one of our attorneys or you may email Geoffrey Calderaro at gcalderaro@holcombdunbar.com.

 

WHAT IS AN EXPUNGEMENT?

Under Mississippi law, an expungement removes “all records relating to an arrest, indictment, trial, and finding of guilt, in order to restore one to the status occupied prior thereto….” Stallworth v. State, 160 So. 3d 1161, 1163 (Miss. 2015). Thus, at the moment an expungement is granted, the law provides that you are restored to the status you occupied before you were convicted.

Simply put, an expungement is a legal way to “clear your record.”  Only a nonpublic record of the offense or arrest is retained by the Mississippi Criminal Information Center, which is used for determining in subsequent proceedings if you are a first offender.   As a result, after expungement, employers should not be able to find your previous conviction when conducting a background check.

By statute, the expungement is designed to restore you to the same “status” as you had before the arrest and charge.  In addition, under Mississippi law, you may not be found guilty of perjury for failure to recite or acknowledge your arrest or conviction in most circumstances.

SO WHAT CAN BE EXPUNGED?

MISDEMEANOR EXPUNGEMENT

If you have ever been arrested or charged with a misdemeanor offense in Mississippi, contact us at your convenience to discuss your options for obtaining an expungement.  There are several methods to expunge a misdemeanor charge from your record in Mississippi, including the following:

Expungement of First Offense

By statute in Mississippi, “Any person who is convicted of a misdemeanor, excluding a conviction for a traffic violation, and who is a first offender, may petition the justice, county, circuit or municipal court in which the conviction was had for an order to expunge any such conviction from all public records.”  Miss. Code Ann. § 99-19-71.

In some instances a person may seek the expungement of additional misdemeanor convictions obtained in justice court and municipal court.  Miss. Code Ann. § 9-11-15(3) and Miss. Code Ann. § 21-23-7(6) provide that upon prior notice to the prosecuting attorney and upon a showing in open court of (1) rehabilitation, (2) good conduct for a period of 2 years since the last conviction in any court and (3) that the best interest of society would be served, the court may, in its discretion, order the record of conviction of a person of any or all misdemeanors in that court expunged. Once the expungement is granted, the petitioner legally stands as though he had never been convicted of the said misdemeanor(s) and may lawfully so respond to any query of prior convictions.

Expungement after Nonadjudication

When a misdemeanor charge has been nonadjudicated, Mississippi law provides that upon successful completion of court-imposed conditions, the charge is to be dismissed.  Upon dismissal, and in other circumstances, the law directs the Court to expunge the record upon petition to the Court.

Expungement after Dismissal or Case Retired to File

Upon petition to the Court, Mississippi law requires the Court to expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of the case. Miss. Code Ann. § 99-19-71(4); Miss. Code Ann. § 21-23-7(12)

Expungement of Minor in Possession Charge

In addition to expungement under one of the methods discussed above, a minor in possession or “MIP” conviction can be expunged in certain circumstances by separate statute “not sooner than one (1) year after the dismissal of the charge or completion of any sentence and/or payment of any fine.”  Miss. Code Ann. § 67-3-70(6).

DUI EXPUNGEMENT

Any person convicted of a first offense DUI under Miss. Code Ann. § 63-11-30(2) or (3), who was not the holder of a commercial driver’s license or commercial learning permit at the time of the offense, may petition the circuit court of the county of conviction for an order to expunge the record of the conviction, at least five (5) years after the successful completion of all terms and conditions of the sentence imposed, if that person:

(i) has successfully completed all terms and conditions of the sentence imposed for the conviction;

(ii) did not refuse to submit to a test of his blood or breath;

(iii) had a blood alcohol concentration tested below sixteen one-hundredths percent (.16%) if test results are available;

(iv) has not been convicted of and does not have pending any other offense of driving under the influence;

(v) has provided the court with justification as to why the conviction should be expunged; and

(vi) has not previously had a nonadjudication or expunction of a violation of this section.

 

FELONY EXPUNGEMENT

Many felony charges can also be expunged – even after a guilty plea or conviction.  And like misdemeanors, any felony charge that was dismissed, not prosecuted or in which you were found not guilty can be expunged.

If you have had a previous felony arrest or conviction, please contact us at (662) 234-8775 to discuss the possibility of expungement with one of our attorneys or you may email Geoffrey Calderaro at gcalderaro@holcombdunbar.com.

Expungement of Certain Felonies

Mississippi law allows for the expungement of the following felony convictions:

  1. A bad check offense under Miss. Code Ann. § 97-19-55;
  2. Possession of a controlled substance or paraphernalia under Miss. Code Ann. § 41-29-139(c) or (d);
  3. False pretense under Miss. Code Ann. § 97-19-39;
  4. Larceny under Miss. Code Ann. § 97-17-41;
  5. Malicious mischief under Miss. Code Ann. § 97-17-67; or
  6. Shoplifting under Miss. Code Ann. § 97-23-93.

A person is only eligible to expunge one of the above felony convictions.  Further, any person convicted of one of the above felonies must wait 5 years from the successful completion of all terms and conditions of the sentence before expungement is available.  Miss. Code Ann. § 99-19-71(2)(a).

Mississippi allows for the expungement of additional felony convictions if committed while the person was under the age of twenty-one (21).  In these cases, any one felony conviction may be expunged 5 years after the successful completion of all terms and conditions of the sentence for the conviction. However, eligibility for an expungement under Miss. Code Ann. § 99-19-71(2)(b) does not apply to felonies classified as a crime of violence in Miss. Code Ann. §97-3-2 and any felony that, in the determination of the circuit court, is related to the distribution of a controlled substance and in the court’s discretion it should not be expunged.

 

The felonies considered crimes of violence include:

(a) Driving under the influence as provided in Sections 63-11-30(5) and 63-11-30(12)(d);

(b) Murder and attempted murder as provided in Sections 97-1-7(2), 97-3-19, 97-3-23 and 97-3-25;

(c) Aggravated assault as provided in Sections 97-3-7(2)(a) and (b) and 97-3-7(4)(a);

(d) Manslaughter as provided in Sections 97-3-27, 97-3-29, 97-3-31, 97-3-33, 97-3-35, 97-3-39, 97-3-41, 97-3-43, 97-3-45 and 97-3-47;

(e) Killing of an unborn child as provided in Sections 97-3-37(2)(a) and 97-3-37(2)(b);

(f) Kidnapping as provided in Section 97-3-53;

(g) Human trafficking as provided in Section 97-3-54.1;

(h) Poisoning as provided in Section 97-3-61;

(i) Rape as provided in Sections 97-3-65 and 97-3-71;

(j) Robbery as provided in Sections 97-3-73 and 97-3-79;

(k) Sexual battery as provided in Section 97-3-95;

(l) Drive-by shooting or bombing as provided in Section 97-3-109;

(m) Carjacking as provided in Section 97-3-117;

(n) Felonious neglect, abuse or battery of a child as provided in Section 97-5-39;

(o) Burglary of a dwelling as provided in Sections 97-17-23 and 97-17-37;

(p) Use of explosives or weapons of mass destruction as provided in Section 97-37-25;

(q) Statutory rape as provided in Section 97-3-65(1), but this classification is rebuttable on hearing by a judge;

(r) Exploitation of a child as provided in Section 97-5-33;

(s) Gratification of lust as provided in Section 97-5-23; and

(t) Shooting into a dwelling as provided in Section 97-37-29.

 

Expungement after Nonadjudication or Pretrial Intervention

Like misdemeanors, when a felony charge has been nonadjudicated, Mississippi law provides that upon successful completion of court-imposed conditions, the charge is to be dismissed.  Upon dismissal, and in other circumstances, the law directs the Court to expunge the record upon petition to the Court.

Expungement after Dismissal or Case Retired to File

Upon petition to the Court, Mississippi law requires the Court to expunge the record of any case in which an arrest was made, the person arrested was released and the case was dismissed or the charges were dropped or there was no disposition of the case. Miss. Code Ann. § 99-19-71(4).

 

HOW CAN I RESTORE MY RIGHT TO OWN A FIREARM?

Mississippi law provides a mechanism to allow such through a “Judicial Certificate of Rehabilitation.”

A felony conviction brings with it several consequences, one of which is the loss of one’s right to own or possess a firearm. Mississippi law, however, does provide an avenue of relief. The gun ownership rights of an individual convicted of a felony can be restored through a Certificate of Rehabilitation.

Upon completing all court ordered conditions, including any and all probation and fines, a person convicted of a felony may petition the court to issue a Certificate of Rehabilitation. A Certificate of Rehabilitation may also be available to those currently ineligible for an expungement.

 

 

Happy Fourth of July from Holcomb Dunbar Attorneys

Happy Fourth of JulyHappy     Fourth     of     July

John Adams said that Independence Day “ought to be commemorated as the day of deliverance by solemn acts of devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one end of this Continent to the other from this Time forward forever more.” So before you celebrate the Fourth of July and ring the bells and light the bonfires, take a moment to read the document that started it and detailed some of the guiding principles of our country.

 

Declaration of Independence: A Transcription

 

In Congress, July 4, 1776.

The unanimous Declaration of the thirteen United States of America, When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Georgia

Button Gwinnett

Lyman Hall

George Walton

 

North Carolina

William Hooper

Joseph Hewes

John Penn

 

South Carolina

Edward Rutledge

Thomas Heyward, Jr.

Thomas Lynch, Jr.

Arthur Middleton

 

Massachusetts

John Hancock

Maryland

Samuel Chase

William Paca

Thomas Stone

Charles Carroll of Carrollton

 

Virginia

George Wythe

Richard Henry Lee

Thomas Jefferson

Benjamin Harrison

Thomas Nelson, Jr.

Francis Lightfoot Lee

Carter Braxton

 

Pennsylvania

Robert Morris

Benjamin Rush

Benjamin Franklin

John Morton

George Clymer

James Smith

George Taylor

James Wilson

George Ross

Delaware

Caesar Rodney

George Read

Thomas McKean

 

New York

William Floyd

Philip Livingston

Francis Lewis

Lewis Morris

 

New Jersey

Richard Stockton

John Witherspoon

Francis Hopkinson

John Hart

Abraham Clark

 

New Hampshire

Josiah Bartlett

William Whipple

 

Massachusetts

Samuel Adams

John Adams

Robert Treat Paine

Elbridge Gerry

 

Rhode Island

Stephen Hopkins

William Ellery

 

Connecticut

Roger Sherman

Samuel Huntington

William Williams

Oliver Wolcott

 

New Hampshire

Matthew Thornton

 

Happy Fourth of July from Holcomb Dunbar Attorneys!

Holcomb Dunbar’s Top 15 New Mississippi Laws

New Mississippi Laws

New Mississippi Laws DUIA host of new Mississippi laws take effect on July 1.  Below are Holcomb Dunbar’s top 15  new laws which includes new seatbelt requirements, microbrew beer sales, and allowing for the operation of golf carts on public roads.

To see the complete list of new laws, resolutions and appropriates from the 2017 Mississippi Legislative Session.

  1. Mississippi Senate Bill 2685

Summary

An Act To Amend Section 63-11-30, Mississippi Code Of 1972, To Require Secure, Online Access To Nonadjudication Records For Judges, Clerks And Prosecutors; To Require Dui Defendants To Reveal Prior Dui History When Pleading Guilty; To Amend Section 63-11-37, Mississippi Code Of 1972, To Clarify The Duty Of The Trial Court Clerk To Submit Disposition Information In A Timely Fashion; To Amend Section 1, Chapter 457, Laws Of 2016, To Extend The Existence Of The Dui Information-exchange Improvement Advisory Committee For One Year, To Revise The Membership Thereof, And To Require An Additional Annual Report From The Committee; To Amend Section 2, Chapter 457, Laws Of 2016, To Extend The Due Date Of The Report To Be Made By The Mandatory Statewide Offense-reporting System Task Force And To Make Certain Technical Corrections; And For Related Purposes.

  1. Mississippi Senate Bill 2271

Summary

An Act To Amend Section 49-7-5 And 49-7-9, Mississippi Code Of 1972, To Exempt Certain Honorably Discharged Veterans With A Combat-related Disability From Certain Hunting And Fishing License Requirements When Participating In A Special Hunt, Fishing Trip Or Other Outdoor Recreational Event That Is Available Only To Such Persons; And For Related Purposes.

  1. Mississippi Senate Bill 2680

Summary

An Act To Amend Section 43-15-13, Mississippi Code Of 1972, To Clarify That Relative Care Is A Legal Placement Option For Abused And Neglected Children; To Amend Section 43-15-17, Mississippi Code Of 1972, To Conform References To Child Protection Services; To Amend Section 43-21-105, Mississippi Code Of 1972, To Enact Definitions In The Youth Court Act Concerning Fictive Kin, Durable Legal Relative Guardianship, And Reasonable Efforts; To Amend Section 43-21-609, Mississippi Code Of 1972, To Clarify That Giving Custody To A Relative And Waiving Any Requirement For The Relative To Participate In Foster Parent Training Is Within The Discretion Of The Court And To Create A Durable Legal Relative Guardianship Alternative; To Amend Section 43-21-613, Mississippi Code Of 1972, To Conform; To Amend Section 93-5-1, Mississippi Code Of 1972, To Clarify The Status Of Spousal Domestic Abuse As A Fault Ground For Divorce; To Amend Section 93-17-303, Mississippi Code Of 1972, To Clarify The Right Of Adoptive Parents, Under Certain Circumstances, To Proceed Pro Se In The Matter Of Registration Of A Foreign Adoption; And For Related Purposes.

  1. Mississippi Senate Bill 2273

Summary

An Act To Require The State Board Of Education To Ensure Instruction In Cursive Writing As A Part Of The Basic Elementary Education Curriculum; To Exempt The Mississippi School For The Blind And The Mississippi School For The Deaf From The Provisions Of This Act; And For Related Purposes.

  1. Mississippi House Bill 1046

Summary

An Act To Amend Sections 37-173-1, 37-173-3, 37-173-7 And 37-173-9, Mississippi Code Of 1972, To Expand The Eligibility For The Mississippi Dyslexia Therapy Scholarship For Students With Dyslexia Program To Include Students In Grade 1 Through Grade 12; To Amend Section 37-173-15, Mississippi Code Of 1972, To Require Local School Districts To Use A Dyslexia Screener From A List Approval By The State Board Of Education; And For Related Purposes.

  1. Mississippi House Bill 1774

Summary

An Act To Authorize The Governing Authorities Of The City Of Pascagoula, Mississippi, To Allow The Operation Of Golf Carts On Certain Public Roads And Streets Within The City; To Require Individuals Operating A Golf Cart To Have A Valid Driver’s License Or Temporary Driver’s Permit; And For Related Purposes.

  1. Mississippi Senate Bill 2724

Summary

And Act To Create Harlie’s Law; To Amend Section 63-2-1, Mississippi Code Of 1972, To Require All Passengers Of A Motor Vehicle To Wear Seat Belts Except Those Required To Use A Child Passenger Restraint System; To Amend Section 63-2-7, Mississippi Code Of 1972, To Conform The Penalties For Failure To Wear A Properly Fastened Seat Belt; And For Related Purposes.

  1. Mississippi Senate Bill 2017

Summary

An Act To Reenact Sections 73-60-1, 73-60-3, 73-60-7, 73-60-23, 73-60-29 And 73-60-45, Mississippi Code Of 1972, Which Provide For The Licensure Of Home Inspectors By The Mississippi Real Estate Commission; To Amend Section 8, Chapter 442, Laws Of 2013, To Delete The Repealer On Those Sections; And For Related Purposes.

  1. Mississippi Senate Bill 2214

Summary

An Act To Amend Section 73-71-7, Mississippi Code Of 1972, To Provide That An Acupuncture Practitioner May Perform Acupuncture On A Patient Only If The Patient Was Evaluated By A Physician, As Appropriate, For The Condition Being Treated Within Six Months Before The Date That Acupuncture Is Performed; To Require The Practitioner To Obtain A Written Statement Signed By The Patient On A Form Prescribed By The State Board Of Medical Licensure Stating That The Patient Has Been Evaluated By A Physician Within The Prescribed Time; To Authorize A Practitioner To Perform Acupuncture On A Patient For Certain Conditions Without An Evaluation From A Physician; To Repeal Section 73-71-9, Mississippi Code Of 1972, Which Provides For Physician Referral To And Supervision Of Acupuncture Practitioners; To Repeal Section 73-71-53, Mississippi Code Of 1972, Which Provides For The Repeal Of The Acupuncture Practice Act; And For Related Purposes.

  1. Mississippi Senate Bill 2610

Summary

An Act To Amend Section 41-29-136, Mississippi Code Of 1972, To Clarify The Use Of Cannabidiol In Research Of Treatments For Seizures And Other Medical Conditions; To Amend Section 41-29-113, Mississippi Code Of 1972, To Conform Schedule I To The Requirements Of This Act; And For Related Purposes.

  1. Mississippi Senate Bill 2628

Summary

An Act To Amend Section 9-13-32, Mississippi Code Of 1972, To Expand The Authority To Cause A Proceeding To Be Recorded Where An Official Court Reporter Is Not Provided; And For Related Purposes.

  1. Mississippi House Bill 996

Summary

An Act To Amend Section 41-29-319, Mississippi Code Of 1972, To Authorize Health Care Practitioners To Issue A Standing Order To One Or More Individual Pharmacies That Authorizes The Pharmacy To Dispense An Opioid Antagonist To Certain Persons Without The Person To Whom The Opioid Antagonist Is Dispensed Needing To Have An Individual Prescription; To Augment The List Of First Responders Who Are Authorized To Administer Opioid Antagonists Such As Naloxone To Provide That Before A Pharmacist May Dispense An Opioid Antagonist Under The Authority Of Such A Standing Order, The Pharmacist Must Complete A Training Program Approved By The State Board Of Pharmacy On Opioid Antagonists; To Amend Section 73-21-73, Mississippi Code Of 1972, To Provide That The Definition Of The Term “prescription” In The Pharmacy Practice Act Includes Standing Orders Authorized By The Preceding Provision; And For Related Purposes.

  1. Mississippi House Bill 1322

Summary

An Act To Create New Section 67-3-48, Mississippi Code Of 1972, To Authorize Small Craft Breweries Located In Mississippi That Produce Not More Than 60,000 Barrels Of Light Wine Or Beer Annually To Sell On The Premises Of The Brewery Light Wine Or Beer Produced At Such Brewery For Consumption On Or Off The Premises Of The Brewery; To Create New Section 67-3-48.1, Mississippi Code Of 1972, To Authorize A Small Craft Brewery That Is Acquired By An Entity That Manufactures Light Wine Or Beer That Does Not Fall Within The Definition Of The Term “small Craft Brewery” To Continue To Operate As A Small Craft Brewery Under Certain Circumstances; To Authorize A Small Craft Brewery That Acquires An Entity That Manufactures Light Wine Or Beer That Does Not Fall Within The Definition Of The Term “small Craft Brewery” To Continue To Operate As A Small Craft Brewery Under Certain Circumstances; To Amend Section 67-3-22, Mississippi Code Of 1972, To Revise The Beer Production Limits That Apply To Brewpubs And To Authorize Brewpubs To Sell Light Wine Or Beer Produced At The Brewpub For Consumption Off The Premises Of The Brewpub In Certain Containers; To Amend Sections 67-3-3, 67-3-53, 67-3-55 And 67-3-69, Mississippi Code Of 1972, In Conformity Thereto; To Amend Sections 27-71-301, 27-71-307, 27-71-311 And 27-71-331, Mississippi Code Of 1972, To Impose An Excise Or Privilege Tax On Light Wine Or Beer Provided By Small Craft Breweries For Retail Sale By Such Breweries And Upon Beer Provided For Tasting Or Sampling; And For Related Purposes.

  1. Mississippi House Bill 453

Summary

An Act To Amend Section 83-11-551, Mississippi Code Of 1972, To Extend The Date Of The Repealer On The Statute Requiring An Insurer Paying An Automobile Insurance Claim To Add The Business Repairing The Automobile And The Lienholder As Payees On The Check; And For Related Purposes.

 

And as both Ole Miss and golf fans we’re especially proud of this on.

  1. Mississippi Senate Resolution 7

Summary

A Resolution Commending And Congratulating Ole Miss Sophomore Standout Braden Thornberry For Winning The University’s First-ever 2017 Men’s Ncaa Individual Golf National Championship.

You just got a moving violation ticket. Now what? | PropertyCasualty360

A moving violation ticket will leave a bitter taste in any driver’s mouth.They will spike a driver’s auto insurance premium, and many come with hefty financial penalties. But depending on the violation or which state the driver is located, it could be an extremely burdensome on a driver’s wallet. For the fourth consecutive year, insuranceQuotes commissioned a Quadrant Information Services study that found car insurance premiums can climb by as much as 96% after a single moving violation on average nationwide.The study analyzed the average national premium increase for one moving violation in 21 different categories, including careless driving, reckless driving, driving under the influence and speeding. As in years past, the study found the economic impact on one’s insurance premium varies significantly among different types of violations and among different states.Here are some of the study’s key findings along with some advice on what you can do after a moving violation to keep your rates as low as possible:

DUI/DWI produce the highest rate increases over the last four years while speeding 1-15 miles per hour over the limit produce the lowest rate increase.

Your premium increase will depend on the specific violation.Take, for instance, the difference between reckless and careless driving.According to Robert Nevo, a former Georgia police officer and current owner of Nevo Driving Academy, careless driving is usually defined as “a minor lapse in judgment,” such as following too closely to the vehicle in front of you. Reckless driving, however, concerns more “intentional acts,” such as driving in a way that shows no regard for the safety of others. “Moving violations are typically weighted with a point system. This makes an excessive speeding violation much more severe than, say, a broken taillight violation,” said Nevo. “Insurance companies often see more points against a driver’s license as an increased risk. Therefore, you’re going to see higher premiums for that driver.”

Across the country, premium increases are directly affected by where the driver lives.  Your premium increase could be expensive. Whether it’s a minor or major offense, your wallet will feel the toll. According to the National Association of Insurance Commissioners (NAIC), the average annual U.S. auto insurance premium is $866. That means an 88% premium spike for one reckless driving offense will result in an increase of just more than $750 per year. Even relatively “minor” infractions, such as following too close or not yielding to a pedestrian, can mean paying an average of $260 more per year for car insurance. Driving under the influence carries an expensive insurance penalty, with a single infraction resulting in an average premium spike of $1,086.  It all depends on the state. The impact on your auto insurance premium largely depends on where you live. For instance, a first-time DUI conviction in North Carolina will result in an average premium increase of 298% (in Hawaii it’s 209%, 187% in California, and 165% in Michigan). Meanwhile, the same violation in Maryland will only result in an average premium increase of 21%. Perhaps the starkest difference can be seen in a violation for failure to wear a seatbelt. In North Carolina, just one ticket for this infraction will result in an average premium increase of 27% (22% in Oregon and 20% in Utah). Meanwhile, in 32 states this particular violation moves the premium needle by less than 5%, including seven states where it has no impact on the premium price at all. You can still save money.

While your premium will be impacted for quite some time, the moving violation will eventually be erased from your driving record. How long you’ll feel the increased premium’s impact depends on the severity of the violation as well as the individual state laws. Here are some tips for the bumpy times ahead. Seek forgiveness: If this your first moving violation, especially a minor one such as a failure to signal, talk to your auto insurer. They’re typically going to be somewhat forgiving for a small infraction. Take advantage of any driving classes your state might be offering to remove one or two moving violations from your record. Make a deal: If your violation isn’t too severe, look for a plea bargain when your day at traffic court is due. Shop around: Shopping for a new car insurance policy after receiving a traffic moving violation may also be a

See full article and graphics: http://www.propertycasualty360.com/2017/06/14/you-just-got-a-moving-violation-ticket-now-what?page=2&page_all=1

Source: You just got a moving violation ticket. Now what? | PropertyCasualty360

Memorial Day kicks off the most dangerous season of the year on the road | PropertyCasualty360

Long daylight hours and better driving conditions may lull drivers into a false sense of safety during summer months­­­­, according to a new survey conducted by Michelin for National Tire Safety Week (May 28‒June 3).Two in three (67 percent) drivers report feeling safer driving during the summertime, citing better road conditions (83 percent) and nicer weather (81 percent) as reasons.34.6M drivers will hit the road Memorial Day weekendDespite drivers’ self-confidence, Memorial Day commences the most dangerous season of the year on the road, with more auto accidents occurring during summer months than any other time of year, according to National Highway Traffic Safety Administration (NHTSA). More than 34.6 million Americans will hit the road this Memorial Day weekend, the traditional launch of the U.S. summer vacation season, according to AAA.Three-quarters of drivers (74 percent) falsely believe that summer has fewer accidents than other times of the year. Similarly, drivers are three times less likely to be vigilant, (e.g., alert and focused on immediate surroundings) while driving during summer months than during winter. RELATED 10 people die every day during the summer from a crash involving a teen driverThe AAA Foundation for Traffic Safety finds that nearly 60% of teen crashes involve distractions behind the wheel.Summer driving mistakesDrivers report other differences in seasonal driving behaviors that suggest reduced vigilance during summer months:Eight in 10 drivers (81 percent) said they were less likely to drive cautiously (e.g., taking extra care with stopping, turning and attention to speed) in the summertime.Nearly three-quarters (72 percent) said they were less likely to pay close attention to other drivers on the road in the summer compared to winter months.Drivers are nearly three times less likely to check the condition of their tires in the summer.Heat is enemy of tires”Drivers tend to think about their tires in the winter, when slippery, icy roads require maximum traction. But heat is the enemy of tires,” said Sarah Robinson, driving safety expert at Michelin. “Some of the most severe tire-related episodes are due to under-inflated tires in summer months.” All drivers are encouraged to remain vigilant and safe on summer road trips with these summer driving tips:Give your car a checkup: Ahead of summer travel season, conduct a safety check of your vehicle to make sure it is in prime condition. Check oil and fluid levels, windshield wipers, headlights and battery ahead of your trip.Check your tires: Check to ensure your tires have sufficient tread with a simple penny test, and check your tire pressure using the manufacturer’s setting found on the driver’s door jamb. Underinflated tires offer less traction, can reduce fuel efficiency, wear out prematurely and, most importantly, suffer unnoticed and irreparable damage that compromises their performance and safety. Don’t forget to check the air in your spare, too.Practice safe following distance: Always be aware of the cars immediately surrounding you, especially those in front. Give yourself enough room to brake or maneuver in an unexpected situation.Focus fully on the road ahead: While on the road, focus fully on driving. Any activities that could divert your attention should be avoided while at the wheel. This includes things like using your phone, snacking, or reaching into the backseat to attend to a child or pet.Carry an emergency kit: Carry an appropriate emergency kit in your car that includes items such as jumper cables, flashlight with extra batteries, reflective triangles, first aid kit, water and non-perishable food items. Program your cell phone in advance with emergency numbers, including that of your roadside assistance provider.Take breaks during long trips: Pull over and take breaks every couple of hours, even if you don’t feel sleepy. Stretching your legs and taking a quick moment to “reset” can help avoid zoning out behind the wheel and keep passengers from getting cabin fever.Related: Death on U.S. roads reach highest since 2007 amid more drivingORDER REPRINTSMOST POPULAR STORIESPERSONAL LINES5 ways to make festival-style concerts safe and enjoyablePERSONAL LINESMillennials: Reaching a new generation of employees and customersPERSONAL LINESMemorial Day kicks off the most dangerous season of the year on the roadCOMMERCIAL LINESInsurance doesn’t cover restaurant’s refusal to serve customer with service dog

Source: Memorial Day kicks off the most dangerous season of the year on the road | PropertyCasualty360

Mother’s Day and Lawyers

Holcomb Dunbar - North Mississippi Attorneys

Mother’s Day and Lawyers

Origins of Mother’s Day

Origins of Mother’s Day can be traced to17th century England and had more of a religious significance.  The celebration did not immediately cross the Atlantic with the early settlers to America.  There was a brief resurrection of the celebration in the late 1800s by Julia Ward Howe, who you may recognize as writing the “Battle Hymn of the Republic.”  At that time, however, Mother’s Day was a day for women to unite against war.

Modern Mother’s Day

A Mother’s Day which resembles today’s celebration was first held in 1908. Ann Jarvis  held a memorial for her mother at St Andrew’s Methodist Church in Grafton, West Virginia.  Jarvis wanted to celebrate hers and all mothers because they were “the person who has done more for you than anyone in the world”.

And with the help of her lawyer, in 1912, Jarvis trademarked “Mother’s Day”.

Mother's Day and Lawyers seek Patent

Mother’s Day Trademark Publication

In 1914, Woodrow Wilson, also a lawyer, signed a proclamation designating Mother’s Day to be held on the second Sunday in May, as a national holiday to honor mothers.

By the 1920s, however, Jarvis grew unhappy with the ways in which the day was celebrated. The transformation into a profit-driven holiday moved her to boycott the holiday she founded. By that time, Hallmark Cards and other companies were selling Mother’s Day cards and candy.

A printed card means nothing except that you are too lazy to write to the woman who has done more for you than anyone in the world. And candy! You take a box to Mother—and then eat most of it yourself. A pretty sentiment.”

-Jarvis

Jarvis believed Mother’s should be honored with handwritten letters expressing their thanks, love and gratitude.  As time passed, Jarvis organized boycotts and with the help of her lawyers, threatened lawsuits against card and candy companies.  She protested a 1923 candy makers’ convention.  And by 1925, she became so incensed that the American War Mothers were raising money by selling Mother’s Day carnations that her protest ended with her arrest for disturbing the peace – which certainly caused her to consult lawyers.

This Mother’s Day

So, this Sunday in honor of Ms. Jarvis, the lawyers of Holcomb Dunbar recommend a nice handwritten thank you to your mothers who, as she said, ‘has done more for you than anyone in the world.’  And, yes, even more than your lawyer.

Happy Mother’s Day!

Holcomb Dunbar Attorney Brad Golmon Appeal Win

Brad Golmon

Brad Golmon

Holcomb Dunbar Appeal Win

Holcomb Dunbar Attorney Bradley Golmon successfully navigates appeal to Mississippi Court of Appeals for his client.

The case arose after a pharmacy’s failure to pay its supplier for inventory. After not receiving payment, the inventory supplier filed a replevin action  to recover the inventory.  A replevin action is a possessory action meaning that typically the only available damages are the specifically described property itself. However, a rarely invoked clause in Mississippi replevin law allows for money damages when the items to be repossed are not found.

Because the pharmacy in the replevin trial was unable to produce the inventory and it was no longer at the pharmacy’s place of business, the trial court awarded damages equal to the value of the amount owed on the inventory.

Money Damages in a Replevin Action

On appeal, the Pharmacy argued that it did not have any notice of the assertion of the damages claimed and that no damages may be had in a replevin. The Court of Appeals disagreed, finding in favor of Holcomb Dunbar’s client and affirmed the damages award in favor of the inventory supplier. Read the full opinion from the Court here.

 

An Administrative Professional’s Day Thanks

 

 

 

A Special Thanks to our Staff on this Administrative

Professional’s Day

 

We salute those whose often unheralded contributions make Holcomb Dunbar – Attorneys better and our jobs easier.

Thank you Janet, Marcy, Melinda S., Michelle, Debbie, and Melinda O.

 

 

Golmon Team Successfully Maintains Mother’s Child Support


Brad Golmon

Brad Golmon

Stacey Golmon

Stacey Golmon

Stacey and Brad Golmon, successfully helped a mother maintain her child support in the face of a father’s requests to dramatically lower his obligations.

The father claimed a large decrease in his income from his outside sales position. With the help of a forensic accounting expert, Stacey and Brad proved that the claimed deductions in his tax returns were more personal in nature, and not reasonable and necessary business deductions.

This case pitted Mississippi’s child support law against state and federal tax law definitions of adjusted gross income and deductions. The tax return and the child support standards are not the same. Child support is typically calculated by a parent’s gross adjusted income. If the parent paying child support is self-employed, Mississippi further allows deductions for reasonable and necessary business expenses. However, an allowable deduction on a tax return, does not necessarily equate to a proper deduction in calculating child support amount.

As a result of Stacey and Brad’s hard work, and attention to detail, the child support payments were not lowered. The court found that the father failed to show that his business deductions were reasonable and necessary under the appropriate child support laws.

If you have questions about Family Law, including a complex child support issue revolving around a self employed parent, please contact the Holcomb Dunbar – Attorneys, Family Law Team to answer your questions.

Having Your Bell Rung

Great article from CLM Magazine this month by Patricia J. Tombetta.

Increased focus on brain injuries means all concussion cases are no longer simple.

Having Your Bell Rung

Increased focus on brain injuries means all concussion cases are no longer simple.

By Patricia J. Trombetta

Does traumatic brain injury strike concern in your heart? If it doesn’t, it should. Traumatic brain injuries are not limited to people who are found unconscious at an accident scene or even those with a Glasgow Coma Scale result below 15 points. Today, we are facing a challenge in bodily injury cases that have turned from what we once thought were “just concussions” into sizable claims for damages.

The news for the past 10 years has focused on concussions in the field of sports—mainly football, soccer, baseball, and hockey—and that news has expanded to include combat troops who have encountered improvised explosive devices, or IEDs. Those who formerly seemed only to have had their “bell rung” are now being subjected to concussion protocols. High schools are calling for baseline testing of their athletes and are no longer putting them back on the field, instead keeping players benched to see how the head injury plays out over days, weeks, and even months.

Diagnosing Brain Injuries

As previously mentioned, the most common tool for measuring brain injury severity is the Glasgow Coma Scale. It measures the subject’s consciousness on three criteria: motor response, verbal response, and eye-opening response. As a result, patients are given one of three classifications: mild (13-15 points), moderate (9-12 points), and severe (3-8 points). No longer can the possibility of traumatic brain injury be ignored, even where there is a high scale rating or no loss of consciousness.

Savvy plaintiff’s lawyers are monopolizing the news frenzy and no longer refer to these injuries as concussions. Today, the nomenclature in the medical field and in the courtroom has changed instead to “traumatic brain injuries.” This change in terminology will increase the severity of the injury in the minds of juries.

A coup-contrecoup brain injury (where the brain meets the skull in the front and the back or side to side) is one that can be sustained in an assault, a fall, or even a rear-end auto collision in which a whiplash event is severe enough. There does not even need to be contact with a hard object. The mere force of impact within the skull may be sufficient enough to cause this type of injury.

The diagnosis of a mild traumatic brain injury (i.e., concussion) is made when, within 30 minutes of an event, there is a Glasgow Coma Scale finding between 13 and 15 (15 being normal); an alteration of consciousness (from confusion to actual loss of consciousness) of less than 20 minutes; and a reported period of post-traumatic amnesia of 24 hours or less. To be medically important, there also must be an impairment in one of three categories: somatic, cognitive, or behavioral.

However, there is no consensus on how many types of impairment there must be or to what extent. There is no set number or severity of impairments that are necessary. Almost anything can be determined as out of the ordinary and a sign of impairment due to head trauma coupled with the history of the accident reported by the claimant—depression, anxiety, exacerbation of pre-injury emotional vulnerabilities, concentration problems, insomnia, neck pain, and the list goes on. What is important is to find the baseline for the claimant. Without the baseline, you will not be able to determine if there actually is a difference between pre- and post-injury and, in fact, a significant head injury.

The importance of detecting traumatic brain injury early and minimizing the creation of a claim of damage is because:

 

  • Chances increase the longer the claim is open that any issues in the claimant’s life post-accident are related to the accident through the use of neuropsychological testing and expert testimony.
  • Once a medical provider suggests the possibility of a traumatic brain injury as the reason for the life troubles of the claimant, the more ingrained that claim of damage becomes.
  • The value of the claim increases the longer the claim is pending due to additional testing, loss of work, and claims of intangible losses, such as friends and social life.
  • Traumatic brain injury can be supported by medical providers with the aid of family and friends, even if arising weeks, months, or even years after the accident.

 

Expert Expectations

The claimant’s experts likely will include a neuropsychologist. It is important to note that the educational requirements of this type of expert include a four-year bachelor’s degree in psychology, pre-med, biology, or neuroscience but does not include post-graduate work in a Ph.D. or Psy.D. Professional certification is not an absolute requirement to practice as a neuropsychologist. However, if the neuropsychologist is a member of the American Academy of Clinical Neuropsychologists, then she is required to achieve board certification.

Much like the diagnosis of a mild traumatic brain injury having no required constellation of symptoms, the neuropsychological testing of a claimant has no standard set of tests to diagnose the injury. In fact, each neuropsychologist can select the battery of tests that are to be given based upon the history provided by the claimant of the issues faced since the accident. Then, there are multiple subtests that must be selected within the initial battery of tests. In addition, much of the testing is accomplished by a technician, not the neuropsychologist, and there is a significant subjective factor in analyzing the timing of the responses, suggestions during testing, and the validity of the responses based upon the background of the patient.

You also may see a neurologist presented as an expert on behalf of the plaintiff because, although a neuropsychologist can tell you the strengths and the weaknesses that are found in the neuropsychological testing, she cannot tell you where the weaknesses came from and if it pre-existed the accident. In fact, there is no neuropsychological test result that is unique to a diagnosis of mild traumatic brain injury. The same test results can be found in a tumor or stroke patient. In the end, it is the neurologist who will determine, based on the history given by the claimant (and her family and close friends) that the demonstrated weaknesses and complaints of the claimant had their genesis in the accident.

Investigating Claims

The importance of a full investigation at the outset of the claim cannot be stressed enough. The claims professional needs to fully evaluate the claimed traumatic brain injury to determine if the issues related to the claimant as a result of the accident are really a result of other life forces or conditions, such as the normal aging process, neurodegenerative disorders, Alzheimer’s, Parkinson’s disease, multiple sclerosis, tumors, or even faked cognitive, behavioral, or somatic complaints.

What you are looking for in the investigation of a possible mild traumatic brain injury is the pre-accident baseline for the claimant. When the claimant’s experts see them, they start from the history provided mostly (if not completely) from the claimant. As seen in many bodily injury cases, that history is neither necessarily correct, nor is it complete. Your job is to get the complete history to differentiate a real traumatic brain injury with life-changing consequences from an innocuous injury that does not affect the claimant’s life or ability to work and earn a living.

To be complete, your investigation will include many items that are obvious, but some likely would not be routine when investigating and evaluating a different type of bodily injury claim. As always, start with a recorded statement of the claimant as soon as possible, pinning down the details of the event, the symptoms suffered, and others who witnessed either the event or the aftermath, focusing on loss of consciousness and any alteration of awareness. You also should speak with those witnesses—such as investigating police officers, passengers, the response team, or even the tortfeasor—again focusing on any loss of consciousness or alteration of awareness. Was the claimant out of the car immediately after impact? Did she have any trouble speaking? Did she appear odd in any way? Did she appear to know what she was doing and what happened?

The next step is to get all pre- and post-accident treatment records pertaining to the claimant. The best place to start is with the family doctor records, which likely will reflect other issues—medical and personal—that the plaintiff was having at the time of accident and afterward. Also, check other medical providers that the claimant is seeing for those issues. The records you are looking for include pharmacy, alcohol/substance abuse, psychiatric, cardiovascular, or neurological. Remember, all drugs have potential side effects that may have resulted in the injuries being claimed in the accident.

Medications that the claimant takes both before and after the accident are important, especially if the claimed traumatic brain injury arises days or weeks after the accident. Are the claimed symptoms a result of the drugs being taken or a traumatic brain injury?

Other records to obtain, depending on the severity and value of the potential claim, include:

  • Police report for this and any other accident.
  • Credit reports.
  • Driving records.
  • School records—including elementary school.
  • Employment records.
  • Prior claims/litigation actions.
  • Military records.
  • Licenses (CDL, hunting, fishing, etc.).
  • Social Security income benefits applications.
  • Workers’ compensation records.
  • Criminal records.

What you are looking for in these records is other claimed injuries or symptoms; any history of head trauma, depression, anxiety, or other problems that can mimic traumatic brain injury in diagnostic or neuropsychological testing; stressors and triggers (physical, mental, or financial); alcohol or drug dependence; and secondary gain. You also are looking for a baseline for the individual. Educational and employment records will be key to finding the baseline that is not soundly determined by the claimant’s neuropsychologist.

Taking the time at the outset of a concussion injury to find the claimant’s baseline and other stressors and triggers or medical conditions will be key to determining both the validity and value of the claim.


Patricia J. Trombetta is an attorney with CLM Member Firm Bonezzi Switzer Polito & Hupp. She has been a CLM Member since 2012 and has earned her CLMP designation. She can be reached at ptrombetta@bsphlaw.com.

Source: Having Your Bell Rung

Florida Electronic Wills Act

Is it a threat, opportunity or potential headache for estate planners?

Florida Electronic Wills Act

Is it a threat, opportunity or potential headache for estate planners?
Craig R. Hersch | Apr 03, 2017
It doesn’t seem all that long ago when my firm transformed its estate-planning practice from renting thousands of dollars worth of storage space for paper files into electronic storage of scanned-in, signed documents. As it turns out, we shifted the headache from taking the time to retrieve physical files from the storage rooms to keeping up with technology, including maintaining robust file servers, offsite automatic data storage, backup and retrieval, as well as having the ever-present IT specialists roam our office on a continual basis to ensure the smooth functioning of our network.

Remember the scare of Y2K? For those of you too young to have been practicing law back then, ask your partners about how the media and technology firms scared all of us to death that somehow our systems would all crash and burn while we drank champagne and rang in the new millennium.

Party like it’s 1999, baby!

Well, along comes another wave of technology — this
time in the form of electronic wills legislation. As I write this, there are two bills of legislation in the Florida House (CS/SB 277) and Senate (CS/SB 206) that legalize electronic wills. I understand that there are similar laws and bills pending in a number of states. For more information, here’s a link to the Florida Senate Judiciary Committee Staff Analysis. Before opining on what this means to estate-planning practitioners, allow me to briefly describe key aspects of the legislation:

Definition of an Electronic Will

The Florida bill defines an electronic will as “an instrument, including a codicil, executed in accordance with s. 732.523 by a person in the manner prescribed by [the Florida Electronic Wills Act], which disposes of the person’s property on or after his or her death and includes an instrument that merely appoints a personal representative or revokes or revises another will or electronic will.”

Executing an Electronic Will

For an electronic will to be valid under the bill, it must:

Exist in an electronic record;
Be electronically signed by the testator in the presence of at least two witnesses; and
Be electronically signed by the attesting witnesses in the presence of the testator and in the presence of each other. However, if the will is self proved by a notary public, the notary’s signature must be accompanied by a notary public seal that meets the requirements of F.S. s. 117.021(3).
To be electronically signed, several requirements must be satisfied, including that the person intends to sign it pursuant to Florida law and either: (1) the witnesses and notary must be physically located within Florida at the time of execution, or (2) in the case of a self-proved electronic will, the will designates a qualified custodian who’s domiciled as a resident of Florida or incorporated in Florida. The notes to the Senate version make clear that the witnesses must either be physically present with the testator and in each other’s presence, or they may be in different physical locations but able to communicate by means of live video and audio conference. If video means is used, the video record must record and store a video transcript of the execution ceremony either in or attached to the electronic document record.

The bill also provides that the testator doesn’t need to be present in Florida to execute a Florida electronic will, but will be deemed to have executed the will in Florida if he states an intention to execute and understands that he’s executing the document according to Florida law.

Qualified Custodian

The bill defines a qualified custodian of an electronic will as a person who meets all of the following requirements:

Isn’t an heir or devisee of the testator;

Is domiciled in and a resident of Florida or is incorporated or organized in Florida;
Consistently employs a system for ensuring the safekeeping of electronic records and stores electronic records containing electronic wills under the system; and
Furnishes for any court hearing involving an electronic will that’s currently or was previously stored by the qualified custodian any information requested by the court pertaining to the qualified custodian’s policies and procedures.
The meaning of the last two requirements appears to be ambiguous. Must all electronic wills be stored using the deemed system? The bill doesn’t specifically require such. What policies and procedures would be deemed adequate? The custodial requirements may be circumvented by the deposit of the will prior to the testator’s death with the clerk of court, but I would assume most people wouldn’t want their last wishes made public prior to death, given the fact that one might change his will at some point in the future.

No Limit to Liability

The bill includes several provisions designed to hold qualified custodians accountable. These include liability for the negligent loss or destruction of an electronic record and the inability to limit liability for doing so, a prohibition on suspending or terminating a testator’s access to electronic records and a requirement to keep a testator’s information confidential. A testator may also force a qualified custodian to immediately hand over to the testator the electronic record of an electronic will, the electronic will itself and a paper copy of the will at any time.

Florida Probate of Electronic Will

Venue for a traditional will would also apply to an electronic will, except that the bill provides additional venue options for the probate of an electronic will of a nonresident. For nonresidents, venue is also proper in the county where the qualified custodian or attorney for the petitioner or personal representative has his domicile or registered office.

Who’s Behind the Bill?

News reports indicate that Bequest, Inc., a Miami-based corporation that runs the website Willing.com is behind the push for electronic wills. Bequest hired the national lobbying firm of Ballard Partners in 2016 and the legislation was filed early this year. Mr. Matthew Forrest, a lobbyist at Ballard Partners, gave testimony (see page 149 of the link) in favor of the bill.

Practical Effects on Estate Planning Lawyers

While I suspect that electronic wills may open up a whole plethora of cases for trial attorneys well-versed in probate and trust administration law, it’s likely too early to tell what the practical effects of this legislation will have on Florida’s estate-planning bar. My personal suspicion is that those with larger estates will continue to prepare wills and trusts the traditional way with paper and attorneys, but those with smaller estates may find the ease and cost of electronic wills to be appealing. This speaks to my other posts on this contributing Xpert page as to whether your firm is in the business of doing simple transactions for your estate-planning clients or whether you’re entering into ongoing client value-creation relationships. Attorneys will probably not want to or even be able to compete in a transactional environment where price is the determinative factor. The advantage clearly goes to the large technological companies that can scale electronic will capabilities with programmers and web designers, not to mention having the resources to serve as qualified custodians.

Further, a firm that wants to compete and offer electronic wills will have to consider whether it wants to be in the business of acting as a qualified custodian. A server failure and corresponding back-up malfunction could potentially economically devastate even the largest firm. Malpractice carriers will certainly consider whether a firm is acting as a qualified custodian when quoting premium rates. This could prompt third-party vendors to enter the arena, but that then calls into question various confidentiality and other ethical concerns.

Just as real estate attorneys lost most title business on the sale of most residential property transactions, the microchip continues to eat away at traditional service-based practices, making a will faster and cheaper for those with modest estates or even less. Estate-planning attorneys going forward will have to consider how to educate those with larger estates, or those with complex problems, as to the advantages of having a wise professional guide parties through that process.

Source: Florida Electronic Wills Act

Jonathan Masters has been invited to join the CLM

Jonathan Masters has been invited to join the CLM

 Jonathan Masters

Holcomb, Dunbar, Watts, Best, Masters & Golmon, PA is pleased to announce that Jonathan has been invited to join the prestigious CLM.  The CLM is a nonpartisan alliance comprised of thousands of insurance companies, corporations, Corporate Counsel, Litigation and Risk Managers, claims professionals and attorneys.  Through education and collaboration, the organization’s goals are to create a common interest in the representation by firms of companies, and to promote and further the highest standards of litigation management in pursuit of client defense.  Selected attorneys and law firms are extended membership by invitation only based on nominations from CLM Fellows.

Licensed in both Mississippi and Tennessee, Jonathan is AV rated and concentrates his practice on civil litigation, insurance defense and coverage, premises liability and medical malpractice.  Jonathan received his Juris Doctor from Mississippi College School of Law, cum laude, in 1998. While in law school, he was a member Phi Alpha Delta and recipient of the Wright Family Law Award. He received his Bachelor of Arts from the University of South Alabama with emphasis in Public Relations and Political Science.

Jonathan is a frequent speaker and writer for the National Business Institute presenting continuing legal education courses to other lawyers concerning insurance litigation, including, Litigating the Insurance Claim; Insurance Coverage Litigation Interpreting Coverage Under the Insurance Contract; Insurance Policy Interpretation, Defending UM/UIM Cases; Avoid Ethical Potholes in the insurance litigation context, Settling Uninsured and Underinsured matters.

 

 

 

Mississippi to Allow Abused Spouses Divorce

New Law Allows Abused Spouses to Divorce

Alienation of AffectionAfter more than 40 years without major changes to Mississippi’s divorce laws, the Mississippi legislature recently made it easier for abused spouses to obtain a divorce. Governor Bryant intends to sign the bill.

Until now there have been traditionally twelve “fault” grounds for divorce:

  1. Natural impotency;
  2. Adultery;
  3. Being sentenced to a penitentiary and not being pardoned before being sent there;
  4. Willful, continued, obstinate desertion for the space of one year;
  5. Habitual drunkenness;
  6. Habitual and excessive use of opium, morphine, or like drug;
  7. Habitual cruel and inhuman treatment;
  8. Insanity on the date of the marriage, if the complainant was without knowledge of the insanity;
  9. Marriage to some other person at the time of the purported marriage;
  10. Pregnancy of the wife by another at the time of the marriage, without the husband’s knowledge;
  11. Relation within the prohibited degrees of kindred; and
  12. Incurable insanity.

 

Under these traditional grounds an abused spouse could attempt to file under the habitual cruel inhuman treatment ground. However, if the abuse was isolated or did not occur with some frequency, the abused spouse would find nearly impossible to obtain a divorce.

The new law expands the habitual cruel and inhuman treatment ground to now include “spousal domestic abuse”.  And further provides that the domestic abuse can be:

  • established through the reliable testimony of a single credible witness, who may be the injured party, and includes, but is not limited to:
    • That the injured party’s spouse attempted to cause, or purposely, knowingly or recklessly caused bodily injury to the injured party, or that the injured party’s spouse attempted by physical menace to put the injured party in fear of imminent serious bodily harm; or
    • That the injured party’s spouse engaged in a pattern of behavior against the injured party of threats or intimidation, emotional or verbal abuse, forced isolation, sexual extortion or sexual abuse, or stalking or aggravated stalking as defined in Section 97-3-107, if the pattern of behavior rises above the level of unkindness or rudeness or incompatibility or want of affection.

With this additional language an abused spouse, even in the face of the abuser’s objection to the separation, may obtain a divorce from an abusive spouse after a single event.  The bill further expands and clarifies that emotional and verbal abuse may allow a divorce, though this section maintains the “pattern of behavior” language.

Mississippi, along with South Dakota, remain the only two states in which there is no unilateral no-fault divorce grounds.  This means, that a party may obtain a divorce by agreement of both, or proving one of the fault grounds above.

 

Debt Collector and Attorney Sanctioned for Suing Wrong Person

Debt Collector and Attorney Sanctioned

The Mississippi Court of Appeals issued an opinion affirming sanctions and fees earlier this week against a collection attorney and the creditor in MONAGHAN v. AUTRY, NO. 2015-CA-01772-COA

The collection complaint was served on a “Robert Autry, Jr.” in Kosciusko, MS. However, it was determined that this was the wrong “Robert Autry” and that the correct Autry lived in Walls, MS. The creditor recognized this mistake and moved to dismiss the lawsuit. However, the Kosciusko Autry retained a lawyer who in addition to seeking a dismissal, sought sanctions and reimbursement of attorney’s fees expended in having to defend the suit.

The Court of Appeals affirmed the award of sanctions against the attorney and creditor. Section 11-55-5(2) states, “No attorney’s fees or costs shall be assessed if a voluntary dismissal is filed as to any action, claim[,] or defense within a reasonable time after the attorney or party filing the action, claim[,] or defense knows or reasonably should have known that it would not prevail on the action, claim[,] or defense.”

Of course, this section accepts that mistakes happen and there shouldn’t be repercussions for honest mistakes that are corrected in a reasonable time. However, evidence was uncovered that before the suit was filed, Autry, Jr. advised the creditor’s attorney that he was the wrong one, and provided his social security number, and despite being assured that he would correct the problem, the attorney moved forward with the suit against the wrong Autry.

As a result, the Court awarded and the Mississippi Court of Appeals affirmed the sanctions against both the creditor and the attorney.

Here’s the full opinion.

5 Mistakes Young Insurance Defense Attorneys Make

By Jeff Sistrunk Law360, Los Angeles (May 27, 2016, 6:06 PM EDT) —

Young lawyers thrust into the the high-stakes business of representing insurance companies in coverage disputes can be prone to simple mistakes that prove costly for the client, including misidentifying the correct state law in a case and skimming the policy. Here, seasoned insurer-side attorneys discuss common errors that young practitioners in the field make and how they can be avoided. Giving Directions To The Wrong State Young insur

Source: 5 Mistakes Young Insurance Defense Attorneys Make – Law360

Thank You for Celebrating with Us

Thank You for Celebrating Holcomb Dunbar’s Open House and Ribbon Cutting

Holcomb Dunbar Open House

Photo by Doug Archer

 

Thank you to all who came and celebrated the official opening of our new office at The Park in the Oxford Commons.  A special thank you to the Oxford-Lafayette County Chamber of Commerce for its support in planning the event and helping to have such a great turn out.

 

Open House and Ribbon Cutting Tomorrow!

Open House and Ribbon Cutting Tomorrow

Holcomb Dunbar invites its clients, colleagues and friends to celebrate the opening of its new office on March 7, at 4:30 p.m. located at 400 Enterprise Drive, Oxford, MS in the Oxford Commons office park.

Open House and Ribbon Cutting Announced

Open House and Ribbon Cutting Announced

Holcomb Dunbar invites its clients, colleagues and friends to  celebrate the opening of its new office on March 7, at 4:30 p.m. of its new offices at 400 Enterprise Drive, Oxford, MS in the Oxford Commons office park.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

10 windiest large U.S. cities

Wind can cause significant property damage for both businesses and homeowners. Do you have P&C insurance clients in any of these windy metro areas?

Source: 10 windiest large U.S. cities

How to plan ahead for a safe, claims-free Super Bowl

It’s a good idea for insurance agents to review coverage with their clients before a Super Bowl house party.

Source: How to plan ahead for a safe, claims-free Super Bowl

Register Now for the Mississippi Defense Lawyers Announces 2017 Annual Meeting

Register now to join Holcomb Dunbar Attorneys and the Mississippi Defense Lawyers Association for its annual meeting at the Beau Rivage resort in Biloxi March 23-25.

“We are excited about this year’s event” says Holcomb Dunbar attorney Jonathan Masters, Chairman of this year’s annual meeting.  “We have a great line up that includes Apollo 13 Astronaut Fred Haise, Jr. and retired Walt Disney Imagineer, Jack Blitch”  There’s also a packed continuing education line up, and then lots of fun activities for the family.

Registration is now open:

MDLA


Brad Golmon

Brad Golmon

Holcomb Dunbar attorney, Brad Golmon, successfully resolved a case alleging that legal and real estate professionals improperly sold property of a non-resident, retired client.

Client initially retained a legal and real estate professional to assist her in selling one of two pieces of property.  In preparing the new deed, however, both pieces of property were included.  The professionals forwarded the deed to the client instructing her to sign.  Relying upon them, she signed the deed, without reading and understanding that she was effectively transferring both pieces of land.

Typically, you are bound by what you sign and the law places a duty on us to read and understand before we sign. There are, in extraordinary cases, exceptions to this duty. One of those exceptions involves the scenario in which you hire professionals to handle a task for you. In that case, the professional’s fiduciary duty may outweigh your duty to read a document before you sign that document. Also implicated in this matter was the Vulnerable Adults Act, a piece of Mississippi legislation that provides certain benefits and protections to senior adults.

Holcomb Dunbar was able to resolve this matter in a way that was satisfactory to the client because here, the deeds came from lawyers and real estate professions who had a higher duty to properly draft the deed and explain its meaning.

 

 

 

Attention Mississippi Lawyers


Mississippi Bar Association Bar Election!

The Mississippi Bar election is open through January 31, 2017, 11 a.m.  The Mississippi Bar election ballots were mailed and emailed last week. You may vote with your mail ballot or go to directvote.net/MB/ and vote online.

And while you’re at it, we humbly urge your support for Holcomb Dunbar’s own, Russ McNees who is running for President of the Young Lawyers Division.

Russ McNees

Russ McNees

E. Russell McNees is a partner with Holcomb, Dunbar, Watts, Best, Masters &  Golmon, P.A. in Oxford, Mississippi, where his practice focuses on defense of civil litigation, insurance coverage disputes and criminal matters. Russ graduated summa cum laude from Mississippi State University with a Bachelor of Business Administration.

Russ received his Juris Doctor, magna cum laude, from the University of Mississippi School of Law, where he was a member of the Moot Court Board and Phi Delta Phi.

Since his admission to The Mississippi Bar in 2006, Russ has served in many capacities during his time with the Young Lawyers Division. He currently serves on the Young Lawyers  Division’s Board of Directors as Director of the North West Division. Russ previously served as president of the Oxford Area Young Lawyers Association, which allowed him to participate as a Young Lawyers Division Delegate at the 2015 ABA Annual Meeting in Chicago. Russ currently serves as president of the Rotary Club of Oxford, Mississippi. In addition, he is a commissioner for the Oxford-University Transit Commission.

Russ has previously served on the United Way Community Investment Committee and is a 2014 graduate of Leadership Lafayette. Russ has been named to the Mid South Super Lawyers “Rising Stars” list each year since 2010 and is also a member of the Lafayette County Bar Association, Mississippi Defense Lawyers Association and DRI, among other area organizations.

Mississippi Highway Patrol Urges Stronger Texting Law

Mississippi Highway Patrol urges stronger texting law

Jimmie E. Gates, The Clarion-Ledger 11:13 a.m. CT Jan. 12, 2017

Mississippi Highway Patrol official says the state’s near two year-old texting law is too complicated and most law enforcement will write tickets instead for careless driving. Since the law went into effect July 1, 2015, a total of 148 tickets, 54 in 2015 and 94 in 2016, have been written for texting while driving, an MHP official says.

In comparison, last year, more than 1,000 tickets each were written for reckless driving and careless driving, said Highway Patrol spokesman Capt. Johnny Poulos. Poulos told the Senate Highway and Transportation Committee, that the texting law needs to be strengthened for it to work.

The Mississippi Legislature passed House Bill 389 in 2015 and Gov. Phil Bryant signed it into law. The law bans texting and posting to social media while driving. The bill allows a civil fine of $25 per violation. The civil fine increased to $100 per violation in 2016. Poulos said the problem with the texting bill is that it only carries a civil penalty, not a criminal penalty. He said a law enforcement officer has to go to justice court and file an affidavit for texting while driving. “We got to put some teeth into this,” Poulos said of the law.Often a Highway Patrol officer has to drive as far as 50 miles out of his or her jurisdiction to file a texting citation in justice court, so they likely will write a careless driving citation instead, Poulos said.Poulos and others say municipal police departments aren’t likely going to write texting citations because cities get nothing out of it. Another problem MHP sees with the texting law is it lists only two actions that a person would be in violation of the law and that is for texting and posting to social media. He said a motorist can argue they were on a website or playing game instead of texting or posting to social media. “You need to broaden it or make it hands free period,” Poulos said. “If the goal is to prevent and deter behavior, make it hands free.”Some state senators say they had a tougher texting bill in 2014, but it died in the House.

In 2015, the House bill was passed.Sen. Billy Hudson, R-Hattiesburg, said he tried unsuccessfully nine years ago to get a bill passed that would have limited cellphone use while driving to hands-free use only. Hudson said California recently passed a law that builds upon its distracted driving laws that bans holding or operating  smartphones while driving unless it is mounted to the dashboard or inside windshield. The new law took effect Jan. 1. “We have taught our grandkids not to text while driving,” Hudson said.Sen. Hiob Bryan, D-Armory, said Mississippi’s current texting bill went to “great lengths to do nothing.”When the House Transportation Committee passed the texting bill in 2015, then-committee chairman Robert Johnson III, D-Natchez, said it was a first step. He said they couldn’t get a tougher measure passed at that time.

Poulos said MHP sees crashes everyday where they find a cellphone cursory still flashing, likely meaning the person involved in the crash was on the phone texting. Safe Kids Mississippi says the number one killer of young people, age 16-20, is motor vehicle crashed. In 2015, 78 young drivers were killed in crashes in the state, says SafeKids Mississippi Youth Program Manager Tawni Basden. Basden said the figures should be available soon for 2016.Part of SafeKids Mississippi proposals to lower teen motor vehicle fatalities is for the state to strengthen the texting and driving policy to include no phone use and increased fines for all ages.

Source: Mississippi Highway Patrol urges stronger texting law

Can a carrier decline coverage due to incorrect information on an application?

Failure to disclose material facts can affect coverage.

I had a question in regards to insurance coverage and signed applications. Can a carrier decline coverage due to incorrect information on a company application that was signed by the insured? How much weight does an application carry?

-California Subscriber
Yes, a company can decline coverage and void the policy for incorrect information. Most applications state this just above the signature, that if the insured materially misrepresented a piece of information that the carrier relied on to grant coverage and the carrier discovers it at the time of loss or after the policy is bound, they can void the policy.

Material misrepresentation is the failure to disclose a fact that would change the carrier’s mind about issuing a policy. For example, the insured fails to mention that he has a mean Rottweiler with a history of biting people unprovoked. Most carriers would deny an application if they knew that risk existed on a homeowners’ policy.

The application carries a fair bit of weight; it is the information presented to the carrier in order for the carrier to determine if the risk is eligible for coverage. Incorrect or omitted information can drastically affect a carrier’s acceptance or rejection of the risk.

Analysis brought to you by the experts at FC&S Online, the unquestioned authority on insurance coverage interpretation and analysis for the P&C industry. To find out more—or to have YOUR coverage question answered—visit www.nationalunderwriter.com/FCS.

Source: Can a carrier decline coverage due to incorrect information on an application?

Merry Christmas and Happy New Year

Merry Christmas and Happy New Year from

the Attorneys and staff at Holcomb Dunbar.

Holcomb Dunbar Attorneys

 

 

 

 

2016’s most dangerous toys

While consumers should expect that toys are safe for all ages, the reality is that unsafe toys remain an ongoing problem.

Source: 2016’s most dangerous toys

Judge rejects divorce papers served through Facebook

A Brooklyn woman tried to change her status to single, but a Brooklyn judge said she couldn’t use Facebook to get rid of her husband. Bucking a new legal trend where judges across the United States

Source: Judge rejects divorce papers served through Facebook

Holcomb Dunbar Moves to New Offices

holcomb-dunbar-new-building-completeHolcomb, Dunbar, Watts, Best, Masters & Golmon law firm is pleased to announce the relocation to its new offices to The Park at Oxford Commons located at 400 Enterprise Drive.

Holcomb Dunbar was 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 over 140 law firms located across the United States and in more than 100 countries.

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

For more information, visit www.holcombdunbar.com.

 

Holcomb Dunbar’s Finally in its New Office !

We are finally in our new building at 400 Enterprise Drive, Oxford, MS in the Oxford Commons.  The boxes are unpacked (mostly) and we’re ready to get back to work.holcomb-dunbar-new-building-complete

Beginning November 21 We are Moving to New Offices

Holcomb, Dunbar, Watts, Best, Masters & Golmon, PA

 

Beginning November 21, we are moving to our new offices in the Oxford Commons Office Park,

400 Enterprise Drive, Oxford, Mississippi

Holcomb Dunbar Attorneys

Holcomb Dunbar Attorneys

Tom Suszek Receives AV Attorney Rating

Tom Suzek Holcomb Dunbar AttorneysTom Suszek Receives AV Attorney Rating

Congratulations to Tom Suszek of Holcomb Dunbar Attorneys, recently received AV ratings from Martindale Hubbell. This is the highest rating awarded by Martindale. An AV® Preeminent™ Peer Review Rating is an outstanding achievement and demonstrates that a lawyer has earned the highest rating available for their legal ability and professional ethics. Holcomb Dunbar is very proud of Tom  for his recognition of his outstanding expertise and ethical standards in representing the firm’s clients.

According to Martindale Hubbell, the Martindale-Hubbell® Peer Review Ratings™ are an objective indicator of a lawyer’s high ethical standards and professional ability, generated from evaluations of lawyers by other members of the bar and the judiciary in the United States and Canada. The first review to establish a lawyer’s rating usually occurs three years after his/her first admission to the bar.

Martindale-Hubbell facilitates secure online Martindale-Hubbell Peer Review Ratings surveys of lawyers across multiple jurisdictions and geographic locations, in similar areas of practice as the lawyer being rated. Reviewers are asked to assess their colleagues’ general ethical standards and legal ability in a specific area of practice. The ratings appear in all formats of the Martindale-Hubbell® Law Directory, in the online listings on martindale.com®, Lawyers.comSM, on the Martindale-Hubbell services, on Martindale-Hubbell mobile apps.

Martindale-Hubbell® Peer Review Ratings™ reflect a combination of achieving a Very High General Ethical Standards rating and a Legal Ability numerical rating. A threshold number of responses is required to achieve a rating.

The General Ethical Standards rating denotes adherence to professional standards of conduct and ethics, reliability, diligence and other criteria relevant to the discharge of professional responsibilities. Those lawyers who meet the “Very High” criteria of General Ethical Standards can proceed to the next step in the ratings process – Legal Ability.

Legal Ability ratings are based on performance in five key areas, rated on a scale of 1 to 5 (with 1 being the lowest and 5 being the highest). These areas are:

• Legal Knowledge – Lawyer’s familiarity with the laws governing his/her specific area of practice(s)
• Analytical Capabilities – Lawyer’s creativity in analyzing legal issues and applying technical knowledge
• Judgment – Lawyer’s demonstration of the salient factors that drive the outcome of a given case or issue.
• Communication Ability – Lawyer’s capability to communicate persuasively and credibly
• Legal Experience – Lawyer’s degree of experience in his/her specific area of practice(s)

The numeric ratings range may coincide with the appropriate Certification Mark:

• AV Preeminent® (4.5-5.0) – AV Preeminent® is a significant rating accomplishment – a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.
• BV Distinguished® (3.0-4.4) – BV Distinguished® is an excellent rating for a lawyer with some experience. A widely respected mark of achievement, it differentiates a lawyer from his or her competition.
• Rated (1.0-2.9) – The Peer Review Rated designation demonstrates that the lawyer has met the very high criteria of General Ethical Standing.

Martindale-Hubbell uses a specific practice area list in the review process to help ensure that all lawyers are rated upon equivalent practice areas, regardless of how individual lawyers choose to articulate their area of expertise. This allows users of ratings to compare and contrast lawyers with a specific area of practice. The Martindale-Hubbell® Peer Review Ratings™ area of practice list is based on user behavior, research on emerging areas of law, and other forms of legal research. Martindale-Hubbell updates the list regularly to reflect the changing needs of the legal industry.
Feedback and Comments

Martindale-Hubbell® Peer Review Ratings™ allow reviewers to provide feedback on the lawyer under review. Feedback is displayed anonymously in conjunction with the review results. Lawyers are allowed to place a one-time comment next to any of the feedback. Martindale-Hubbell subscribers are able to highlight two peer feedback comments and position them at the top of their ratings display. Peer Review feedback will be archived after two years.Peer Review feedback/comments are published for all attorneys who are listed on our Martindale-Hubbell database. Martindale-Hubbell publishes lawyer/firm rating information it has gathered about lawyers/firms and provides a forum for other third parties to share what they’d like to share about any particular lawyer(s) on our websites martindale.com and Lawyers.comSM. The site is not law firm advertising and Martindale-Hubbell is not acting as agent for any lawyer or law firm in publishing this information. Each lawyer/law firm must decide for itself how it wishes to use any Martindale-Hubbell Peer Review Ratings information and, as stated in the terms of use, each lawyer/law firm is wholly responsible for ensuring that any use it makes of Martindale-Hubbell Peer Review Ratings or of data is compliant with the ethics rules affecting that lawyer/law firm.

Holcomb Dunbar Named to U.S. News “Best Law Firms”

Holcomb Dunbar Named to U.S. News – Best Lawyers® 2017 “Best Law Firms” List

logo6

Holcomb, Dunbar, Watts, Best, Masters & Golmon named a Tier 1 National “Best Law Firm” in litigation by U.S. News – Best Lawyers® in 2017 edition.

Firms included in the 2017“Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law prac­tice and breadth of legal expertise.   To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America©, which recognizes the top 4 percent of practicing attorneys in the US.  “We are again pleased to be included in this year’s list” says Jonathan Masters, one Holcomb Dunbar’s members.

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers is based on an exhaustive peer-review survey. Over 52,000 leading attorneys cast more than 5.5 million votes on the legal abilities of other lawyers in their practice areas. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity.

Awards were given in 74 national practice areas and 120 metropolitan practice areas. One “Law Firm of the Year” is named in 87 of the ranked practice areas.

The 2017 “Best Law Firms” rankings can be seen in their entirety by visiting Best Lawyers.

Mississippi Insurance Law – Part 10

Mississippi Insurance Law – Part 10

MISSISSIPPI Insurance-Related Law  — An A to Z Guide

This is the last post of us sharing our 2016 update.  If you like a full copy or have any questions, please email or call.

Valued Policy Law

Miss. Code Ann. § 83-13-5, known as the “Valued Policy Law” or “Valued Property Statute,” provides that no insurer may issue fire insurance on property in an amount that exceeds the fair market value of the property.  The statute also provides that when property is totally destroyed by fire, the insurer may not deny that the destroyed property was worth the full amount of insurance, and that full amount of insurance shall be the damages for the insured.

The valued property statute only operates in cases where the insured property is “totally destroyed by fire,” which means there is the lack of a “substantial, usable remnant of the building surviving.”  Home Ins. Co. v. Greene, 229 So. 2d 576, 579 (Miss. 1969).

In addition, “a building insured against fire is a ‘total loss’ where, though only partly burned, it is rendered unfit for the purpose for which it was constructed, and there is an ordinance or law prohibiting reconstruction.”  Palantine Ins. Co. v. Nunn, 55 So. 44 (Miss. 1911).

The statute provides that when the insured property is totally destroyed by fire, the insurer may not deny that the destroyed property was worth the amount of the insurance, which amount is the measure of damages for the insured.  Mississippi Farm Bureau Mut. Ins. Co. v. Todd, 492 So. 2d 919, 932 (Miss. 1986).

This statute is written into all fire insurance contracts as a matter of law and does not depend on specific language in the policy.  Harrison v. American Motorists Ins. Co., 245 So. 2d 577 (Miss. 1971).

The purpose of the statute is to prevent insurers from collecting premiums for an amount of coverage and then denying that the property’s value equals the amount of coverage.  Todd, 492 So. 2d at 932.  The statute will allow the principles of indemnity to be violated to the extent an insured may be allowed to recover in excess of the insured’s actual damages.

The valued property statute applies only to real property and is not available to the insured to establish the value of personal property destroyed by fire.  Home Ins. Co. v. Greene, 229 So. 2d 576, 579 (Miss. 1969).

 

Vicarious Liability

Without some special relationship, an owner of an automobile is not liable for injuries negligently caused by a permissive driver.  Wood v. Nichols, 416 So. 2d 659 (Miss. 1982).

The methods in which liability may be imputed from a permissive user to owner are agency, employment, negligent entrustment, conspiracy, joint enterprise, and ownership liability statutes.  Woods v. Nichols, 416 So. 2d 659, 663-64 (Miss. 1982) (agency); Dukes v. Sanders, 124 So. 2d 122, 128 (Miss. 1960) (negligent entrustment); Buford v. Horne, 300 So. 2d 913 (Miss. 1974) (joint enterprise); See Miss. Code Ann. § 63-1-25 (joint and several liability for the willful or negligent acts of a minor under seventeen while operating motor vehicle between minor and person who signed application for license or permit).

Wrongful Death

Brought by a beneficiary or personal representative, the following damages can be recovered in a wrongful death action: expenses of last illness, any conscious pain and suffering of the deceased, funeral expenses, the present net cash value of the deceased’s work life expectancy (i.e. the total earnings the deceased would have realized throughout his lifetime, based on the average life expectancy) reduced to the present value and further reduced by the amount which the decedent would have spent on himself, and loss of society and companionship of the deceased (does not include ‘grief’).  Miss. Code Ann. § 11-7-13.

The Estate of the deceased person may or may not present a claim for damages in a wrongful death case. Generally, damages that an Estate may have are limited to funeral expenses and medical expenses incurred in treating the final illness or injury.

 

See also Releases.

______________________

A word of caution is necessary whenever legal issues are at stake. The information contained in these posts is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report or laws may have changed or been reinterpreted.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, particularly before denying any first-party claims, you should consult with your counsel or the attorneys at Holcomb Dunbar.

 

 

Mississippi Insurance Law – Part 9

Mississippi Insurance Law – Part 9

MISSISSIPPI Insurance-Related Law  — An A to Z Guide

Here’s the next post sharing our 2016 update.  If you like a full copy or have any questions, please email or call.

Title of Vehicle

Mississippi is a “title” state.  By statute, Mississippi does not regard the sale of a motor vehicle as consummated until the certificate of title is properly transferred and delivered to the purchaser. Until this occurs, the seller is regarded as in possession of legal title to the vehicle.  In this regard, Mississippi Code Annotated § 63-21-31 states in pertinent part:

(1) If an owner transfers his interest in a vehicle, … other than by the creation of a security interest, he shall, at the time of the delivery of the vehicle, … execute an assignment and warranty of title to the transferee in the space provided therefor on the certificate or as the State Tax Commission prescribes, and cause the certificate and assignment to be mailed or delivered to the transferee.

(5) … a transfer by an owner is not effective until the provisions of this section have been complied with.

See also Hicks v. Thomas, 516 So.2d 1344, 1346 (Miss.1987) (this statute “accepts certainty of title as our primary value, and provides a simple method for transferring title to motor vehicles-endorsement and delivery to the transferee of the title certificate”).

 

Owner Liability

Without some special relationship, an owner of an automobile, merely by virtue of his ownership interest, is not liable for injuries negligently caused by a permissive driver.  Wood v. Nichols, 416 So. 2d 659 (Miss. 1982).  See also Vicarious Liability.

 

Towing

A towing company may recover from the insurer if the insurer takes title of the vehicle and doesn’t pay fees.  An insurer may not assume or accede to title without assuming the credit obligations for towing and storage as well.  Once an insurer has succeeded to title they may not abandon the vehicle without consent of the towing or storage service.  Miss. Code Ann. § 83-11-301.

Unfair Claims Settlement Practices

Mississippi has not adopted the Model Unfair Claims Settlement Practices Act, but has analyzed the conformity of the Mississippi statute on mandatory policy provisions, Miss. Code Ann. § 83-9-5, with the Model Act.  Lewis v. Equity Nat. Life Ins. Co., 637 So. 2d 183, 188 (Miss. 1994).

Uninsured/Underinsured Motorist

UM Statute

Mississippi mandates uninsured motorists (UM) 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.

NOTE: 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)).

 

Classes

The UM Statute separates insureds into two categories, or classes.  Case law has identified the insureds as either “Class I” or Class II.”  These categories are derived from the structure of the UM Statute. The statute provides that the named insured, spouse and resident relatives receive UM benefits whether they are in the insured vehicle “or otherwise.”  Thus, UM is personal insurance as to these insureds and follows them wherever they go (in a car, house, walking down the street, or in a bathtub).  The statute further provides that permissive drivers and guest passengers are only insureds while using the insured motor vehicle.  Their benefits are attached to the vehicle they are in.  To summarize: “Class I” insureds are the named insured and resident relatives, while “Class II” insureds are permissive drivers and guest passengers.

 

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.

 

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 limitsCossitt 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 Multiple Claims

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.

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.

Exhaustion

The law regarding exhaustion remains unclear in Mississippi.  An insured may have 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.  Harthcock v. State Farm Mut. Auto. Ins. Co., 248 So. 2d 456, 461-62 (Miss. 1971) (insured not required to exhaust).  But see Robinette v. American Liberty Ins. Co., 720 F. Supp. 577 (S.D. Miss. 1989) (enforcing policy provision requiring insured to exhaust).    Make sure to consult the specific policy language regarding this issue.

If an insured does proceed to obtain the liability or other UM proceeds, he is generally not required to fully exhaust those limits.  The Court in Mississippi Farm Bureau Mut. Ins. Co. v. Garrett, 487 So. 2d 1320 (Miss. 1986) held that in interpreting a requirement that an insured first obtain other “available” insurance, the term essentially implies a substantial exhaustion (i.e. having in mind the nature and extent of injuries, liability, settlement offered, and discounted by the costs and risks of seeking a greater sum).

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).

However, liability offset provisions, which would serve to reduce or eliminate UM coverage, have been held to be valid.   See Offsets and Exhaustion, above.

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).

 

Liability Exclusions Create UM Coverage

It is important to keep in mind that any exclusion or limitation of coverage under the liability coverage will likely trigger uninsured motorist coverage.  The UM Statute defines an “uninsured motor vehicle” to include motor vehicles that have no liability insurance, as well as vehicles that have liability insurance, but the carrier has legally denied coverage.

Mississippi courts have consistently held that UM must be construed from the perspective of the injured insured.  So, from that view, one must look to see if tortfeasor has any liability insurance to compensate the insured’s damages.  The courts have held “it is all the same to him whether there is no insurance at all, or a policy that is incapable of being applied to satisfy his claim because the tortfeasor’s insurer lawfully disclaims liability.”

Therefore, whenever there is an event that renders the tortfeasor without liability coverage (through exclusions, lack of cooperation, etc.), that will trigger an insured’s first party UM benefits.  In other words, once the tortfeasor becomes uninsured for any reason, UM benefits become potentially available.  This will occur even under the same automobile insurance policy, as the coverages apply separately to each insured.

 

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.

Minors

In the case of minor children of the named insured, the Mississippi Supreme Court has held them to be residents of the named insureds household as a matter of law even if they live with the named insured’s spouse under a custody arrangement.  In the case of divorced parents, therefore, minor children are considered to be residents of each parent’s household as a matter of law.  Aetna Cas. & Sur. Co. v. Williams, 623 So. 2d 1005 (Miss. 1993).

 

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.

______________________

A word of caution is necessary whenever legal issues are at stake. The information contained in these posts is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report or laws may have changed or been reinterpreted.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, particularly before denying any first-party claims, you should consult with your counsel or the attorneys at Holcomb Dunbar.

 

 

Mississippi Insurance Law – Part 8

Mississippi Insurance Law – Part 8

MISSISSIPPI Insurance-Related Law  — An A to Z Guide

Here’s the next post sharing our 2016 update.  If you like a full copy or have any questions, please email or call.

Salvage Title Law

Salvage titling is governed by Title 35, Part 7 of the Mississippi Administrative Code.  See also § 83-11-551 (alternative procedure to obtain salvage tile or parts-only certificate).

 

Seat Belt Defense

Evidence that a plaintiff failed to use a seatbelt may not be used to prove contributory negligence.  Miss. Code Ann. § 63-2-3.

However, there are other instances in which the non-usage may be relevant.  For example, the defendant may properly introduce evidence as to whether the plaintiff was using a seatbelt at the time of the accident in order to establish facts concerning the causation, nature, and extent of injury.  In these situations the judge will consider whether:  the evidence of the non-usage has probative value other than proving negligence of the plaintiff; whether the prejudicial effect substantially outweighs the probative value; and whether other evidentiary rules permit the introduction of the evidence. Estate of Hunter v. General Motors Corp., 729 So. 2d 1264, 1269 (Miss. 1999).

See also, Driver Safety Laws.

Settling Claims

See Releases.

Spoliation of Evidence

Spoliation of evidence is not an independent cause of action in Mississippi.  Richardson v. Sara Lee Corp., 847 So. 2d 821, 824 (Miss. 2003).

Mississippi case law holds that the destruction of evidence results in a negative presumption or inference against the party who destroys the evidence.  Thomas v. Isle of Capri Casino, 781 So.2d 125, 133-34 (Miss. 2001).  The Mississippi Supreme Court has held that where a (medical) record required by law to be kept is unavailable due to negligence, an inference arises that the record contained information unfavorable to the defendant, and the jury should be so instructed.  Delaughter v. Lawrence County Hosp., 601 So.2d 818, 822 (Miss. 1992). See also,

Estate of Perry ex rel. Rayburn v. Mariner Health Care, Inc., 927 So.2d 762 (Miss.Ct.App. 2006).

Statutes of Limitation

Negligence

Most negligence actions are governed by a 3 year statute of limitations which runs from date of accident/injury.  Miss. Code Ann. § 15-1-49.

The statute provides for a “discovery rule” but only for latent injuries and diseases.  If a person has such a latent injury or disease, then the statute does not start to run until the person discovers, or by reasonable diligence, should have discovered, the injury.  Miss. Code Ann. § 15-1-49 (2).

UM context

A cause of action against an insurer for uninsured-motorist benefits is subject to a 3 year statute of limitations.  Miss. Code Ann. § 15-1-49.  The limitations period, however, does not always start at the date of the accident or injury.  Instead, it commences when the insured knew or should have known that the tortfeasor was uninsured or underinsured.  Montgomery v. Safeco Ins. Co. of Ill., No. 2011-CA-00225-COA (Miss. App. March 20, 2012).  The statute begins to run when it can be reasonably known that the damages suffered exceed the limits of insurance available to the alleged tortfeasor.  Jackson v. State Farm Mut. Auto. Ins. Co., 880 So. 2d 336 (Miss. 2004).

Receipt by an injured insured of an accident report reflecting that the alleged tortfeasor possesses no insurance provides reasonable knowledge that damages suffered exceed the limits of insurance available for purposes of running the statute of limitations.  Montgomery v. Safeco Ins. Co. of Ill., No. 2011-CA-00225-COA (Miss. App. March 20, 2012).

Tolling/Agreement

The Mississippi Supreme Court has ruled that statute of limitations cannot be lengthened by agreement.  This prohibition against tolling agreements applies to any statute of limitations in Chapter 15 (where most limitation periods are found, including the general negligence statute), but not to limitations in other chapters of the code.  However, the courts will look to determine whether a party is equitably estopped from asserting the statute of limitations under the circumstances.  Miss. Code Ann. § 15-1-5.  Townes v. Rusty Ellis Builder, Inc., No. 2011-CA-164-SCT (Miss. October 4, 2012).

Continued promises of payment can create a situation where the court will find that a carrier waived the statute.  See Douglas v. Parker Elec. v. Mississippi Design and Devel. Corp., 949 So.2d 874 (Miss. 2007).  However, simply continuing to negotiate has been held insufficient to toll or waive statute.

Intentional Torts

Many intentional torts, including intentional infliction of emotional distress, are governed by a 1 year statute of limitations.  Miss. Code Ann. § 15-1-35.

Malpractice

Medical malpractice actions have a 2 year statute of limitations which runs from when the alleged action or omissions occurred, or when with reasonable diligence might have been first discovered.  Notice must be given 60 days prior to filing of the suit which will extend the statute of limitations if it would have expired during the 60 days.  Miss. Code Ann. § 15-1-36.

There is a seven year statute of repose which bars any action not brought within that time period unless it involves a foreign object or fraudulent concealment.  Id.

Minors

Statute does not start running on minors until they turn 21 (even if they are emancipated), then it starts to run for the applicable statute of limitations for that injury.  Miss. Code Ann. § 15-1-59.

Wrongful Death

Statute runs from underlying event that caused injury.  The statute applicable to the particular injury controls (i.e. medical malpractice claims have 2 years from injury, intentional torts have 1 year from injury, general negligence claims have 3 years from injury).  This is a change in the law since 2006.  See Jenkins v. Pensacola Health Trust, Inc., 933 So. 2d 923 (Miss. 2006) (previous law applied a 3 year statute from the date of death).

The wrongful death statute, Miss. Code Ann. 11-7-13, encompasses both survival claims and wrongful death claims.  The Mississippi Supreme Court has recently clarified the confusion in this area and held that the statute begins to run from the underlying tort that caused the death in a survival claim; however, the statute begins to run from the time of death in a wrongful death claim.  Caves v. Yarbrough, M.D., 991 So. 2d 142, 149-50 (Miss. 2008).

Survival claims are claims in which if death had not ensued, the injured party could have maintained an action and recovered damages.  A true wrongful death claim belongs solely to the decedent’s beneficiaries and is a claim brought to recover damages one person’s death causes to another (i.e. loss of love, society and companionship).  Id. at 149.  See also, Wrongful Death.

 

Description  

Time

 

Statute

 

Assault and Battery 1 year Miss. Code § 15-1-35
Automobile Accident 3 years Miss. Code § 15-1-49
Contract (in writing) 3 years Miss. Code § 15-1-49
Contract (oral or not in writing) 1 or 3 years (Depending on the type of contract) Miss. Code § 15-1-29
Fraud 3 years Miss. Code § 15-1-49
Enforcing Court Judgments 7 years Miss. Code §§ 15-1-43 and 15-1-45
Legal Malpractice 3 years Miss. Code § 15-1-49
Libel 1 year Miss. Code § 15-1-35
Medical Malpractice 2 or 7 years (Depending on when the injury is “discovered”) Miss. Code § 15-1-36
Personal Injury 3 years Miss. Code § 15-1-49
Product Liability 3 years Miss. Code § 15-1-49
Property Damage 3 years Miss. Code § 15-1-49
Slander 1 year Miss. Code § 15-1-35
Uninsured Motorists 3 years Miss. Code § 15-1-49
Wrongful Death 3 years Miss. Code § 15-1-49

 

Subrogation

Mississippi has adopted the “made whole” rule in that the insurer is not entitled to subrogation until the insured has been completely compensated.  The made whole rule cannot be overridden by contractual language.  Hare v. State, 733 So. 2d 277, 284 (Miss. 1999).   See also Liens.

The UM Act provides the right of subrogation to the UM carrier against the tortfeasor to the extent any UM benefits have been paid to the insured as a result of the tortfeasor’s negligence. Miss. Code Ann. § 83-11-107.   The insurer also has the right to receive notice in the event the named insured institutes action against the tortfeasor.  Miss. Code Ann. § 83-11-105.  As noted above, the UM carrier’s right to subrogation is secondary to the insured’s right to receive a full recovery.  Dunham v. State Farm Mut. Auto. Ins. Co., 366 So. 2d 668, 672 (Miss. 1979). The “made whole” rule has been held NOT to apply to UM carrier’s right to offset liability limits of the tortfeasor.

UM carriers may be precluded from a subsequent subrogation suit against the tortfeasor when the insured executes a release of the tortfeasor in consummation of a settlement with or without the UM carrier’s knowledge or consent.  St. Paul Property and Liability Ins. Co. v. Nance, 577 So. 2d 1238, 1241 (Miss. 1991).  Releasing the tortfeasor without the carrier’s consent usually triggers an exclusion of coverage in standard policies.

______________________

A word of caution is necessary whenever legal issues are at stake. The information contained in these posts is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report or laws may have changed or been reinterpreted.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, particularly before denying any first-party claims, you should consult with your counsel or the attorneys at Holcomb Dunbar.

 

 

Mississippi Insurance Law – Part 7

Mississippi Insurance Law – Part 7

MISSISSIPPI Insurance-Related Law  — An A to Z Guide

Here’s the next post sharing our 2016 update.  If you like a full copy or have any questions, please email or call.

Negligence

Children

Mississippi applies the common law “rule of sevens.”  A child under the age of seven is irrefutably deemed to be incapable of negligence.  Children between the ages of 7 and 14 are presumed to be incapable of negligence, but the presumption may be rebutted by showing that the child had elevated capacity.  Children above the age of 14 are presumed to be capable of negligence.  Steele v. Holiday Inn, 626 So. 2d 593 (Miss. 1993).

Statutory Standards of Care

Negligence per se, or a presumption of negligence, is the general rule in Mississippi if the plaintiff claims that a defendant violated a particular statute.  In order to determine if the statute provides the necessary standard of care, a plaintiff must prove that he or she is in the class that the statute was designed to protect and the harm was of the type that the statute was designed to prevent.  See Byrd v. McGill, 478 So. 2d 302 (Miss. 1985).

 

Notice of Insurance Claim

The duty to defend presupposes the duty to notify the insurer of any proceedings instituted against them.  Without notice the insurer cannot be expected to provide a defense.  Mimmitt v. Allstate County Mut. Ins. Co., Inc., 928 So. 2d 203, 207 (Miss. App.  2006).

Owner’s Liability

Without some special relationship, an owner of an automobile, merely by virtue of his ownership interest, is not liable for injuries negligently caused by a permissive driver.  Wood v. Nichols, 416 So. 2d 659 (Miss. 1982).  See also, Vicarious Liability.

Parental Liability

Parents may be found liable for property damage up to $5,000 caused by the willful or malicious acts of their minor children between age 10 and 18.  Miss. Code Ann. § 93-13-2.

Parents have a duty to take reasonable measures to supervise their children in order to protect others from acts of their children which are reasonably foreseeable.  Williamson v. Daniel, 748 So. 2d 754, 759 (Miss. 1999).

There is joint and several liability between a minor and the person who signed the minor’s application for a driver’s license for the willful or negligent acts of a minor under 17 while operating motor vehicle. M.C.A. § 63-1-25.

Parents are liable for their minor child who willfully defaces or damages a sign, device, signal, bridge, underpass or overpass up to $200.  Miss. Code Ann. § 97-15-1.

See also, Minors, Parental Liability for Medical Expenses

Premises Liability

Generally

The duty which a landowner owes to another is determined by the common law statuses: trespasser, invitee, and licensee.  Little v Bell, 719 So.2d 757 (Miss. 1998).  A three-step process is applied to determine premises liability:  determining the status of the injured person; the duty that is owed based on the status; and whether the duty was breached by the landowner.  Leffler v. Sharp, 891 So. 2d 152 (Miss. 2004).

Trespasser

A trespasser is someone who enters the property of another without permission.  Hughes v. Star

Homes, Inc., 379 So. 2d 301, 303 (Miss 1980).  A landowner owes the trespasser the duty not to

willfully or wantonly injure him.  Id. at 304.

The Attractive Nuisance Doctrine applies to situations involving child trespassers.  The plaintiff must prove four elements when a child enters another’s property and is injured by a dangerous condition: 1) that the owner knew or should have known of the dangerous artificial condition, 2) that the owner knew or should have known that children frequent the area where the dangerous condition exists, 3) that it is unlikely that the child trespasser could appreciate the risk presented, and 4) that the cost to correct the dangerous condition is minimal compared to the magnitude of the risk.  It should be noted that the plaintiff is NOT required to show that the child was actually attracted by the dangerous condition.  Keith v. Peterson, 922 So. 2d 4 (Miss. Ct. App. 2005), cert. denied, 926 So. 2d 922 (Miss. 2006).

Mississippi codified the definition and duty owed to a trespasser in the 2016 legislative session.  See, Miss. Code Ann. § 95-5-31.  It maintained the common law duty to avoid willful and wanton injury, but established several situations with respect to children or adults who are in a “position of peril.”  The law created a duty of reasonable care to a trespasser if the owner discovers the trespasser in a position of peril on the property.  The law also contains a final paragraph which appears to maintain the common law defenses and immunities.  It is unclear exactly how this statute will be applied and what, if any, effect it will have on the ultimate outcome of a case other than perhaps broadening the “attractive nuisance” doctrine.

Licensee

A licensee is someone who enters the property of another for his own benefit with the express or implied permission of the owner.  Little, 719 So. 2d at 760.  A landowner owes a licensee the duty to refrain from willfully or wantonly injuring him (same as Trespasser).  Hughes, 379 So. 2d at 304.  “Social guests” are considered licensees.

Invitee

An invitee is someone who enters the property of another with the express or implied permission of the owner for the mutual benefit of the invitee and the owner.  Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978).  The duties that the landowner owes to an invitee are to keep the premises reasonably safe and to warn of hidden dangers.  Mayfield v. The Hairbender, 903 So. 2d 733 (Miss. 2005).

Hoffman Exception

The premises owner is liable for injuries proximately caused by his affirmative or active negligence which subjects a person to unusual danger, or increases hazard to him, when his presence is known to the owner.  The standard is of ordinary and reasonable care in these situations.  Hoffman v. Planters Gin Co., Inc., 358 So. 2d 1008, 1013 (Miss. 1978).

Slip and Fall

In order for a plaintiff to recover in a slip and fall case, he must show (1) that some negligent act of the defendant caused his injury; or (2) that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff; or (3) that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known the dangerous condition.  Anderson v. B. H. Acquisitions, Inc., 771 So. 2d 914, 918 (Miss. 2000) (citing Downs v. Choo, 656 So. 2d 84, 86 (Miss. 1995)).

 

Primary/Excess Issues

There is no statute in Mississippi governing “other insurance” provisions.  There is no case law that has invalidated “excess” policy provisions as contrary to public policy or based on the statute mentioned.

Nevertheless, there are some situations that will arise that will create a conflict between a carrier’s attempt at designating its policy as excess, and the “other” insurance company’s attempts to do the same thing.  Under Mississippi case law, when two (or more) policies present competing other insurance clauses (such that, if both literally read, would leave no primary coverage), the courts will disregard both provisions, and deem the policy for the accident vehicle as the primary.  Travelers Indemnity Company v. Chappell, 246 So. 2d 498 (Miss.1971); USF&G  v. John Deere Insurance Co., 830 So. 2d 1145 (Miss. 2002).

In other words, when two “other insurance” clauses conflict such that neither insurer purports to carry the primary policy of coverage, the two “other insurance” clauses cancel each other out.  This common law invention is known as “The Rule of Repugnancy.”  Once the rule is applied, “the policy of the owner of the vehicle involved in the accident is ordinarily considered to be the ‘primary policy.’”  Chappell, at 505.

Where there are two conflicting “other insurance” clauses, a carrier still should examine the language of the policies to see if in fact they conflict.  As it stands right now, however, this basic rule of contract construction comes with a caveat in Mississippi, for even where the policies do not conflict, the appellate courts have shown a tendency to apply the “primary” rule anyway.  As a result, it is becoming more and more “universal” (as one Mississippi opinion put it) to make the “primary” insurer the one with coverage of the automobile involved, conceivably in the face of policy language to the contrary.  Recently, the Mississippi Supreme Court summarily held “[t]he long-standing law in Mississippi is that the insurance policy issued to the owner of the vehicle is the primary policy . . . .”  See Guidant Mut. Ins. Co. v. Indemnity Ins. Co. of North America, 13 So. 3d 1270 (Miss. 2009).  That “primary” insurer will be required to exhaust the limits of the policy before the other, excess policy will be invoked.  Assuming a court can be reminded to look at the policy language first, in a case in which the other policy announces itself to be the primary policy or provides that coverage is to be pro rated between the insurers, the company’s excess provision would not be in conflict, and would in fact be excess.

A similar issue arises when insurance carriers dispute which company will be able to take the offset of other available insurance (such as the tortfeasor’s liability policy).  The only Mississippi case to have addressed the question of priority of a set-off is Dixie Insurance Company v. State Farm Mut. Auto. Ins. Co., 614 So.2d 918 (Miss. 1992).  In Dixie, the court appeared to create the rule that the primary carrier is entitled to the offset.   The court stated, “[t]he trial court correctly held that the primary insurer was entitled to offset first.”  Id.  See also Strickland v. Hill, 2002 WL 31654961(E.D. La.) (unpublished opinion) (noting that the offset doctrine “appears to be tailored based on the ranking of insurance companies”).  However, this “rule” may be an overstatement of Mississippi law as the court strayed from policy interpretation in this decision and the announcement of this rule was unnecessary.

 

Privacy of Insurance Information

As a general rule, financial, health and personally identifiable information contained within an insurance policy, declarations page, or general insured’s file are private.  Both Federal law and Mississippi law obligate an insurance company to protect and withhold the release of this information unless authorized to do so.  See, 15 U.S.C.A. §6801 et seq. (Graham-Leach-Bliley Act) and Miss. Code Ann. §83-1-1 et seq., and Mississippi Insurance Dep’t Regulations 2001-1, 2000-7, 2001-2, et al.

 

Property Damage Adjusting (Auto)

Excerpts from Consumer Alert issued by Mississippi Department of Insurance in 2014 (can be found at www.mid.gov/consumers):

 

Steering

Under Mississippi law, an insurance company may not dictate to you where you must have your repairs made. An insurance company may recommend that repairs be made at a designated repair facility where they have a contractual relationship; however, payment of the claim may not be conditioned on the use of a particular repair facility. Also, an insurance company cannot refuse to pay a claim because the repairs were made at a particular repair facility.

 

Measure of Damage

The damages that may be recovered under an automobile claim is defined in the policy and is often the actual cash value of the property immediately prior to the loss, or the amount necessary to properly repair the damage.

Most policies will provide for two (2) different manners for recovery by the policyholder:

  1. Insurance company pays for the loss; or,
  2. Insurance company repairs the vehicle.

 

Policyholders are encouraged to read the policy to clearly understand what the insurance company will pay under the policy. Any dispute regarding whether the insurance company has paid in accordance with the policy is a question of fact. A question of fact is to be determined by the finder of fact, which is either a jury or a judge.

 

Amounts to be Paid

By law, the most an insurance company shall be required to pay for the repair of the vehicle or repair or replacement of the glass is the lowest amount that such vehicle or glass could be properly repaired or replaced by a contractor or repair shop within a reasonable geographical or trade area of the insured. Most insurance policies actually provide for greater payment than what is statutorily required in Mississippi by providing that the insurance company will pay the median or average amount to properly and reasonably repair or replace within the policyholder’s geographical or trade area.

In preparing an estimate, an insurance company will base the amount it will cost to properly repair the vehicle on the insurance company’s set hourly rate pursuant to policy terms. This estimate will be provided to the policyholder before repairs are made. The insurer’s hourly rate must conform to statutory law.

A policyholder may choose to have the repairs made at a repair facility that charges more than what the insurance company has agreed to pay. Insurance companies do not set repair facility hourly rates so there may be a difference between the two rates. In that instance, either the repair facility will agree to make the repairs for the amount in the insurance company’s estimate or the policyholder will have to pay for the difference.

Policyholders should be aware of and address any potential differences between the insurance company’s and the repair facility’s estimate before allowing the repair facility to begin to repair the vehicle.

If additional damage is discovered in the repair process, the insurer will inspect the vehicle before agreeing to the repairs. After it is determined these repairs are needed and covered under the policy, a supplemental check will be issued to the repair facility to cover these additional costs.

AMP vs. Non-OEM

Mississippi law allows for the use of Aftermarket parts (AMP) and Non-original equipment manufactured aftermarket crash parts. AMP and Non-OEM parts may be authorized for use by the insurer and used by the repair facility in the manner authorized by Mississippi law for making repairs. AMP and Non-OEM parts are allowed to be used if they are used in conformance to statutory law, the provisions of the policy, and the parts properly and safely repair the vehicle.

AMP is commonly referred to as “used” parts. However, AMP may be new or used parts. AMP is defined by law as the replacement for any of the non-mechanical sheet metal or plastic parts which generally constitutes the exterior of a motor vehicle. As these are parts manufactured by the car manufacturer, there is no statutory requirement that the use of these parts be disclosed to the insured.

Non-OEM parts are aftermarket crash parts that are made by any manufacturer other than the original vehicle manufacture or his supplier. Some repair facilities may use the term “Competitive Parts” when referring to these types of parts. As Non-OEM parts are not made by the original manufacturer, there are certain statutory requirements that must be followed when using them.

A policyholder is not required to accept a non-OEM part as part of their repairs but may be required to make up the difference in price.

 

Reasonable Expectation Doctrine

Mississippi has adopted the reasonable expectations doctrine on public policy grounds: “The objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though the painstaking study of the policy provisions would have negated those expectations.”  Brown v. Blue Cross & Blue Shield, 427 So. 2d 139, 141, fn. 2 (Miss. 1983) (citing Keeton, Insurance Law Rights at Variance with Policy Provisions, 83 Harv. L. Rev. 961, 967 (1970)).

 

Recording Conversations

One-Party Consent:  A person has the right to record the contents of an oral, telephonic or other communication if the person is a party to the communication or if one of the parties has given prior consent.  Miss. Code Ann. § 41-29-531(e).

 

Releases

In order to obtain a valid and binding settlement and release, certain situations require court or other governmental agency approval:

Minors (under 18)

Although the age of majority in Mississippi is 21, all persons 18 or older are deemed to be adults for purposes of personal property, which includes the right to settle a claim, and accept money in the settlement of a claim.  Miss. Code Ann. § 93-19-13.  Garret v. Gay, 394 So. 2d 321, 323 (Miss. 1981).

However, for all persons under 18, there are only three ways to bind a minor to a settlement (no matter what the amount is): 1) remove the disability of a minor, 2) appoint a guardian to approve the settlement, and 3) chancery court approval, without a guardianship, for claims less than $25,000.  In re Wilhite, 121 So. 3d 301 (Miss. App. 2013).

Both parents are necessary parties to a minor settlement proceeding.  Miss. Bar Assoc. v. Moyo, 525 So. 2d 1289 (Miss. 1988).

Incompetent Adults

Similar to minors, incompetent adults lack the capacity to enter into legally binding contracts.  Options to settle with an incompetent adult include: 1) obtain a guardianship or conservatorship over the adult and proceed with chancery court approval, or 2) settle with a person that has a durable power of attorney over the adult.

Estates

If a claimant is asserting a claim on behalf of the Estate, the claim must be approved by the Chancery Court for estates valued in excess of $50,000.

For small estates, where the estate assets are less than $50,000 and an estate administration has not been opened, there is a procedure involving the use of affidavits by the “successor” that can be utilized. Miss. Code Ann. § 91-7-322.

 

Wrongful Death

Chancery court jurisdiction in wrongful-death litigation may be invoked in only three instances: (1) for opening the decedent’s estate so that beneficiaries may pursue a wrongful-death claim in the circuit court; (2) for the approval or rejection of a minor’s wrongful-death settlement; and (3) to determine wrongful-death beneficiaries.

 

Wrongful death cases that only involve adult beneficiaries, and do not involve any claim by the Estate of the decedent, do not require chancery court approval of the settlement.  However, chancery court proceedings are required to determine the proper wrongful death beneficiaries.  If an unknown beneficiary were to present himself within the applicable statute of limitations period, he would still be able to assert a claim and file suit and would not be bound by the settlement agreement unless beneficiaries were determined in chancery court.  Chancery Court proceedings include publications that cut off the rights of any unknown beneficiaries and ensure a complete and binding settlement of the case. Thus, it is important to utilize the chancery court process in wrongful death cases.

 

If there is a beneficiary who is a minor, his portion of the wrongful death settlement must proceed like any other minor settlement.

Workers Compensation      

In some situations a claimant is injured while in the course of his employment and receives medical or other benefits as a result of his employer’s workers compensation insurance.  The workers compensation carrier has a statutory right of reimbursement pursuant to Miss. Code Ann. § 71-3-71.

By statute, in order to validly settle a liability claim with a person who has received workers compensation benefits, certain approval must be obtained.   Miss. Code Ann. § 71-3-71.

If no lawsuit has been filed, approval must be obtained by filing a petition with the Mississippi Workers Compensation Commission.

If a lawsuit has been filed, approval must be obtained from the court in which the suit is pending.

NOTE: These requirements only apply to liability insurance settlements.  Payments of UM benefits are exempt from any such requirement and no approval need be obtained.  Cossitt v. Nationwide Mut. Ins. Co., 551 So. 2d 879 (Miss. 1989).

In order for the workers compensation carrier to become entitled to reimbursement it must: 1) intervene or join into the plaintiff-employee third party litigation (at any time before disbursement); 2) enter into a contractual subrogation agreement with the employee, or 3) file its own suit against the at-fault party.  Liberty Mutual Ins. Co. v. Shoemake,  11 So. 3d 1207 (Miss. 2013).

Repair Shop

Insurer cannot condition the payment of a claim on the requirement that repairs be made by a particular repair shop.  In other words, the claimant or insured has the right to select the repair shop of his or her choice.  However, the insurer is only required to pay the lowest possible amount for which the repair could properly and fairly be made within a reasonable geographic area.  Miss. Code Ann. § 83-11-501.

 

Draft/Check

When there is not a total loss, the insurer must add the name of the repair shop or any lienholders as a payee on a check.  In the case of a total loss, the insurer must add the name of any lienholder to the insured as payee on the check.   Miss. Code Ann. § 83-11-551 (currently scheduled to be repealed July 1, 2017).

_____________________

A word of caution is necessary whenever legal issues are at stake. The information contained in these posts is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report or laws may have changed or been reinterpreted.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, particularly before denying any first-party claims, you should consult with your counsel or the attorneys at Holcomb Dunbar.

 

Mississippi Insurance Law – Part 6

Mississippi Insurance Law – Part 6

MISSISSIPPI Insurance-Related Law  — An A to Z Guide

Here’s the next post sharing our 2016 update.  If you like a full copy or have any questions, please email or call.

Made Whole Rule

The “made whole rule” is a general principle that an insurer is not entitled to equitable subrogation until the insured has been fully compensated.  Hare v.  State, 733 So. 2d 277 (Miss. 1999); United Services Auto. Ass’n v. Stewart, 919 So. 2d 24 (Miss. 2005).  This equitable right to be made whole cannot be superseded by contrary contract language.  5 MS Prac. Encyclopedia MS Law § 40:97.  So far, this rule applies only to insurance carriers and not to actual healthcare providers. Memorial Hospital at Gulfport v. Guardianship of Proulx, No. 2012-CA-01714-SCT (Miss. September 12, 2013).

The made whole rule does not apply to Medicaid’s or Medicare’s lien.

As to ERISA insurance payments, the Mississippi Supreme Court held that the made whole rule is not the default rule in an ERISA plan. Yerby v. United Healthcare, 846 So .2d 179 (Miss. 2002).  Unless the individual insurance plan language provides a limitation on its right of reimbursement, the Court has held that ERISA trumps the made whole rule.

 

Mandatory Minimum Limits

See Financial Responsibility Law

Medical Records Costs

Mississippi limits the amount a medical provider can charge a patient or her representative for providing paper copies of medical records.  Miss. Code Ann. § 11-1-52 provides for a charge of no more than $20.00 for pages 1 through 20, $1.00 per page for the next 80 pages, and $0.50 per page for all pages thereafter.  A provider may also charge 10% for postage and handling and $15 for recovering the records from an off-site location.

The medical ethics rules (applicable to all physicians licensed in Mississippi) similarly limits the costs for providing paper copies of medical records to the patient, his legal representative, or other person holding a written authorization.  The “ethics rules” give a little extra punch to this situation as they say that any refusal to release records “as enumerated above” is “unprofessional conduct, dishonorable or unethical conduct likely to deceive, defraud or harm the public . . .”

Under Federal law, a patient has the “right to obtain from [their health care providers] a copy of [their medical records] in an electronic format,” 42 USC §17935(e)(1), and that health care provider is allowed to bill “only the cost of … [c]opying, including the cost of supplies for and labor of copying,” 45 CFR 164.524(c)(4)(i)See Health Information Technology for Economic and Clinical Health Act (HITECH Act).

If an electronic copy of the records is requested, the medical provider should not charge the cost for creating paper copies.

If an insurance company requests these records, and specifically points out that only an electronic copy was requested and that the charges for paper copies are illegal, the medical provider often tries to claim that the HITECH Act’s medical records billing limits apply only to requests directly from the patient that are going straight to the patient, and so they don’t apply to other, even though it is at the patient’s request.  This contention can be refuted as the Department of Health and Human Services made clear, “The final rule adopts the proposed amendment Sec. 164.524(c)(3) to expressly provide that, if requested by an individual, a covered entity must transmit the copy of protected health information directly to another person designated by the individual.” Federal Register January 25, 2013 Vol 78 No. 17, Page 5634.

Marriage

Common Law

Mississippi does not recognize common law marriages entered into after April 5, 1956.  Miss. Code Ann. § 93-1-15.  However, a common law marriage validly entered into in a state that recognizes common law marriage will be recognized in Mississippi.  George v. George, 389 So. 2d 1389 (Miss. 1980).

Minors

The age of majority in Mississippi is 21.  Miss. Code Ann. § 1-3-27.

However, all persons 18 or older are deemed to be adults for purposes of personal property.  Therefore, anyone 18 or older, if not otherwise disabled, has the capacity to enter into binding contractual relationships affecting such personal property, including the right to settle a claim, and accept money in the settlement of a claim.  Miss. Code Ann. § 93-19-13.  Garret v. Gay, 394 So. 2d 321, 323 (Miss. 1981).

A minor age 15 or older may contract for life, health and accident insurance.  Miss. Code Ann. § 83-7-19.

Negligence

Mississippi applies the common law “rule of sevens.”  A child under the age of seven is irrefutably presumed to be incapable of negligence.  Children between the ages of 7 and 14 are

presumed to be incapable of negligence, but the presumption may be rebutted by showing that the child had elevated capacity.  Children above the age of 14 are presumed to be capable of negligence.  Steele v. Holiday Inn, 626 So. 2d 593 (Miss. 1993).

Minors’ Settlements

The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education, and the care and management of their estates.  Miss. Code Ann. § 93-13-1.  Because of this, when settling a minor’s claim, both parents must petition the Court for authority to settle or one must be a petitioner and the other parent join in the petition for all relief requested.  As the natural parents and guardians of their children, the mother and father can accept settlements of $25,000.00 or less before the Court without being appointed as guardian.  Miss. Code Ann. § 93-13-211.  When a total gross settlement is greater than $25,000.00, or personal property exceeding the value of that sum, a guardian is required to be appointed to accept the settlement.

A minor under guardianship is a ward of the Chancery Court.  Carpenter v. Berry, 58 So. 3d 1158 (Miss. 2011).  As such, it must take all necessary steps to conserve and protect the best interest of these wards of the court.  Id.  And all persons who deal with guardians or with the courts in respect to the rights of minors are charged with this knowledge.  Id.  See also Union Chevrolet Co. v. Arrington, 138 So. 593 (Miss. 1932).

It has generally held that it is ultimately for the Chancery Court to determine the application and validity of subrogation claims, including those from an ERISA plan.  See Cooper Tire v. Striplin, 652 So. 2d 1102 (Miss. 1995).

It is incumbent upon a defendant, in an action seeking to settle a claim of a minor under guardianship, to assure that all of the procedures set out by the Supreme Court are followed or risk a set-aside of the settlement.  Carpenter v. Berry, 58 So. 3d 1158 (Miss. 2011).

Every petition for authority to compromise and settle a minor’s claim shall set forth the facts in relation thereto and the reason for such compromise and settlement and the amount thereof.  See Unif. Chanc. Ct. R. 6.10.  According to the Uniform Rule, the material witnesses concerning the injury and damages shall also be produced before the Chancellor for examination.  Id.  Where counsel representing the minor has investigated the matter and advised settlement, he or she shall give testimony to the Court regarding the result of the investigation.  Id.

It is incumbent upon those paying money to a guardian to make certain that the chancellor’s decree is faithfully executed in every respect.  Joyce v. Brown, 304 So. 2d 634 (Miss. 1974).

In practice, we have found that an increasing number of chancellors are requiring that the minor be represented by an attorney at the settlement hearing.

Parental Liability for Medical Expenses

Mississippi law requires parents to pay for their child’s reasonable medical expenses.  This is a legal duty of both the father and the mother.  The minor child is not legally responsible for these expenses.  McLain v. West Side Bone and Joint Center, 656 So. 2d 119 (Miss. 1995); Lane v. Webb, 220 So. 2d 281 (Miss. 1969); Alexander v. Alexander, 494 So. 2d 365 (Miss. 1986). Haver v. Hinson, 385 So. 2d 605 (Miss. 1980).  Accordingly, the medical, surgical, hospital and nursing expenses incurred by curing or relieving a minor child’s injuries are recoverable, if at all, by his parent, and not by him (unless he is emancipated).   These are separate claims owned by the parents of the minor.   However, if the parents bring suit on behalf of the minor “as next friend” (as provided for under the rules), the courts have held that parents waive their separate claim for such damages in favor of the child and permit all damages to be included in one case.  Lane v. Webb, 220 So. 2d 281 (Miss. 1969).  Double recovery for such expenses is not allowed.  Cook v. Children’s Medical Group, P.A., 756 So. 2d 734 (Miss. 1999).

Misrepresentation

An insurer may cancel or void a policy from its inception and treat as if it never existed upon proof that the misrepresentation of a material fact is in the application.  Casualty Reciprocal Exchange v. Wooley, 217 So. 2d 632, 635-36 (Miss. 1969).

Warranty v. Representations

A distinction is made as to whether the misrepresentations are warranties or representations.  Sanford v. Federated Guaranty Ins. Co., 522 So. 2d 214, 216-18 (Miss. 1988).

The insurer only has to show that the information is literally not true in the case of a warranty because the materiality of the statement will be presumed.  Colonial Life & Acc. Ins. Co. v. Cook, 374 So. 2d 1288, 1291 (Miss. 1979).

In the case of representations, the insurer must show that the information is not substantially true and was material to the risk assumed by the insurer.  National Cas. Co. v. Johnson, 67 So. 2d 865, 867 (Miss. 1953).  Materiality is determined by the probable and reasonable effect which truthful answers would have on the insurer.  Sanford, 522 So. 2d at 217.  If the information helps determine whether or not to accept the risk, then it is material.  Wooley, 217 So. 2d at 635-36.  Intent does not determine misrepresentation, and a policy may be voided even if there is an innocent and good faith belief the statements are true.  Fidelity Mut. Life Ins. Co. v. Miazza, 46 So. 817, 819 (Miss. 1908).

The terms of the application control whether a question is a warranty or a representation.  The terms must clearly indicate that the terms will be treated as warranties, and any ambiguity will favor treating the statements as representations.  Sanford, 522 So. 2d at 216-17.

______________________

A word of caution is necessary whenever legal issues are at stake. The information contained in these posts is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report or laws may have changed or been reinterpreted.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, particularly before denying any first-party claims, you should consult with your counsel or the attorneys at Holcomb Dunbar.

Mississippi Insurance Law – Part 5

Mississippi Insurance Law – Part 5

MISSISSIPPI Insurance-Related Law  — An A to Z Guide

Here’s the next post sharing our 2016 update.  If you like a full copy or have any questions, please email or call.

License Suspension

Upon the request of a plaintiff or his attorney in a case involving an automobile collision, a losing defendant’s license will be suspended if a judgment is not paid within 60 days and the plaintiff’s attorney requests that it be suspended.  Miss. Code Ann. § 63-15-25 through 63-15-35.  The statutes permit the lifting of the suspension for agreed upon installment payments.  The statutes only require the satisfaction of a judgment up to the minimum insurance limits required by law.

Liquor Liability

Mississippi has a statute which provides immunity from liability of those who lawfully sell or supply intoxicating beverages by permit.  However, this liability limitation does not extend to the holder of an alcoholic beverage permit, his agent, or employee who sells to a visibly intoxicated person.  Miss. Code Ann. § 67-3-73.

Social hosts are also immune from liability for serving or furnishing alcoholic beverages to persons who may lawfully consume such beverages.  Further a social host is not liable for those that consume alcohol on his premises and in his absence.   These immunities do not apply if alcohol consumption is forced by the host or he falsely represents that the beverage contains no alcohol.  Miss. Code Ann. § 67-3-73.

An adult is prohibited from permitting a party to take place at their home if they are aware that minors are obtaining or consuming alcohol.  Miss. Code Ann. § 97-5-49

Liens

Medicaid

Medicaid has a statutory right of recovery from the beneficiary and from third persons or entities that a beneficiary has a right to sue.  Miss. Code Ann. § 43-13-125(1) and § 43-13-305.  Effective 2014, the Mississippi Division of Medicaid has contracted with Health Management Systems, Inc. (HMS) to be the primary contact for all casualty recovery inquiries.  Contact information:  HMS Mississippi Casualty Recovery, P.O. Box 1350, Jackson, MS 39201-9820; 855-547-4984; missubro@hms.com.

Medicare

Medicare claims to have a superior right of reimbursement, which may be helpful to think of as a “super lien.”  Medicare is controlled by federal law.  See 42 U.S.C. § 1395y(b).  This means that Medicare is not required to notify anyone of its right to reimbursement, nor is it required to make a request for reimbursement in order to enforce its right to recovery.  Instead, the parties to a liability claim must notify Medicare of the claim, take action to determine the amount of the reimbursement and make payment accordingly.  This includes reimbursement for past treatment as well as protection of Medicare’s interests when future treatment will be necessary. the amount of the reimbursement and

Hospital/Medical

Unlike some other states, Mississippi has no general statutory provision for a “hospital lien,” “physician lien,” or “medical lien,” nor does there appear to be any case law creating a medical provider’s equitable lien on insurance benefits because of medical services rendered.  Memorial Hospital at Gulfport v. Guardianship of Proulx, No. 2012-CA-01714-SCT (Miss. September 12, 2013).   See also Assignments.  Mississippi law only permits a transfer of benefits for medical costs by assignment.

In 2013, Mississippi created a lien in favor of providers of burn care.  See Miss. Code Ann. § 85-7-301, et seq.  There are specific procedures that must be followed regarding notice of such lien.

 

ERISA

In some cases, payment of medical bills or other benefits may have come from an insurance plan subject to the Employee Retirement Income Security Act of 1974 (ERISA).  Although not a “lien,” most insurance plans have a contractual provision providing that they have a right to repayment or subrogation should the insured receive money from a tort settlement or judgment.

ERISA is codified at 29 U.S.C. §1001 et seq. and has broad application to most every conceivable employer sponsored health insurance plan with certain exceptions for plans described in §410 (c)(1)(A-D) (church plans, government plans, and trade association plans) and those exemption by the “safe harbor” provisions prescribed by the Secretary of Labor.  See 29 C.F.R. § 2510.3-1(j) (1993).

ERISA in and of itself does not have a provision requiring subrogation or giving an insurance company a lien on settlement/judgment proceeds.  Typically the right of recovery for an ERISA plan is governed by the insurance contract.  In  Yerby v. United Healthcare, 846 So .2d 179 (Miss. 2002), the Mississippi Supreme Court held that the made whole rule is not the default rule in an ERISA plan.  The Fifth Circuit has likewise rejected the made whole rule where it was not included in the ERISA plan, and held that a clear and unambiguous subrogation/reimbursement provision entitles an ERISA plan to the full amount of medical benefits paid on the insured’s behalf.   See Sunbeam-Oster Company, Inc. v. Whitehurst, 102 F.3d 1368, 1376 (5th Cir. 1996); AT&T v. Flores, 322 Fed. Appx. 391, 394 (5th Cir. 2009).  As a result, an ERISA plan seeking contractual subrogation in Mississippi against an adult’s injury claim is entitled to subrogation regardless of whether or not the insured has been made whole by the settlement or judgment.

Thus, like hospital or other medical providers, insurance payments under ERISA do not amount to a lien (i.e. an actual property interest in the settlement proceeds or judgment).  It will be important to inquire into whether the insurance provider claims it has an assignments of rights.

Chancery Court approval is required in order to assign a minor’s right to insurance proceeds. Methodist Hosps. of Memphis v. Marsh, 518 So. 2d 1227, 1228 (Miss. 1988); McCoy v. Preferred Risk Ins. Co., 471 So. 2d 396, 398 (Miss. 1985).  It has generally held that it is ultimately for the Chancery Court to determine the application and validity of subrogation claims, including those from an ERISA plan.  See Cooper Tire v. Striplin, 652 So. 2d 1102 (Miss. 1995) (“the subject of minor’s estates is a matter within the field of domestic relations not governed by ERISA,” and that the law did not “directly or indirectly relate to pension plans.”). See also, Clardy v. ATS Inc. Employee Welfare Benefit Plan, 921 F. Supp. 394 (N.D. Miss. 1996); O.D. v. Ashley Healthcare Plan, 2013 U.S. Dist. LEXIS 139266 (N.D. Miss. Sept. 27, 2013)(Judge Aycock)( “[P]laintiff’s claims for approval of the minor’s settlement are not preempted by ERISA.”)

Workers Compensation

A workers compensation carrier has a statutory right of reimbursement pursuant to Miss. Code Ann. § 71-3-71, for any benefits paid to an injured employee.  Furthermore, in order to validly settle a liability claim with a person who has received workers compensation benefits, certain approval must be obtained.   Miss. Code Ann. § 71-3-71.

NOTE: These requirements only apply to liability insurance settlements.  Payments of UM benefits are exempt from any such requirement and no approval need be obtained.  Cossitt v. Nationwide Mut. Ins. Co., 551 So. 2d 879 (Miss. 1989).

In order for the workers compensation carrier to become entitled to reimbursement it must: 1) intervene or join into the plaintiff-employee third party litigation (at any time before disbursement); 2) enter into a contractual subrogation agreement with the employee, or 3) file its own suit against the at-fault party.  Liberty Mutual Ins. Co. v. Shoemake,  11 So. 3d 1207 (Miss. 2013).

______________________

A word of caution is necessary whenever legal issues are at stake. The information contained in these posts is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report or laws may have changed or been reinterpreted.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, particularly before denying any first-party claims, you should consult with your counsel or the attorneys at Holcomb Dunbar.

Mississippi Insurance Law – Part 4

Mississippi Insurance Law – Part 4

MISSISSIPPI Insurance-Related Law  — An A to Z Guide

Here’s the next post sharing our 2016 update.  If you like a full copy or have any questions, please email or call.

Governmental Immunity

The State of Mississippi and its political subdivisions have waived their tort immunity in certain circumstances for up to $500,000 in damages, or up to the limit of the governmental entities liability insurance if higher, for any single occurrence.  Miss. Code Ann. § 11-46-5, 15.

Complete governmental tort immunity is retained for certain claims, including: claims arising from a governmental employee’s exercise or failure to exercise a discretionary function or duty; claims arising from an act or omission of a governmental employee engaged in police or fire protection activities unless the employee acted in a reckless disregard for the safety of any person other than those engaged in criminal activity at the time of the injury; claims arising from when the claimant was in prison; and claims arising out of the administration of corporal punishment or actions to maintain control of students unless the teacher acted in bad faith, with a malicious purpose, or in wanton and willful disregard of human rights or safety.  Miss. Code Ann. § 11-46-9.

Notice of Claim Against Government

 A claimant must give written notice of claim to the chief executive officer of the governmental entity being sued 90 days prior to filing suit.  Miss. Code Ann. § 11-46-11.  Notice of claim provisions must be strictly complied with.  University of Mississippi Medical Center v. Easterling, 928 So. 2d 815 (Miss. 2006).

The one-year statute of limitations will be tolled for 95 days against the state or 120 days against a municipality or other political subdivision upon filing the notice of claim.  If the governmental entity denies the claim sooner, the statute will once again begin to run.  Once the claim is denied or the tolling period has expired, the claimant has an additional 90 days tacked on to the original limitations period in which to file suit.  Page v. University of Southern Mississippi, 878 So. 2d 1003 (Miss. 2004)

Homeowners’ Bill of Rights

In 2009, the Mississippi Insurance Department created a Policyholder Bill of Rights regarding personal lines homeowner insurance.  All homeowner policies since 2009 have been required to include the Policyholder Bill of Rights in the issuance and delivery of the policy.  The MID identified 19 rights, including the selected excerpts highlighted below:

 

  1. Policyholders shall have the right to receive in writing from their  insurance company the reason for any cancellation or nonrenewal of coverage.The written statement from the insurance company must provide an adequate explanation for the cancellation or nonrenewal of coverage.
  1. Policyholders shall have the right to receive a written explanation of why a claim is denied, in whole or in part.
  1. Policyholders shall have the right to request and receive from the insurance company any adjuster reports, engineer reports, contractor reports,statements or documents which are not legally privileged documents that the         insurance company prepared, had prepared, or used during its adjustment of the           policyholder’s claim. A company may keep confidential any documents they prepare in conjunction with a fraud investigation.
  1. Policyholders shall have the right to prevent an insurance company, agent, adjuster or financial institution from disclosing their personal financial information to companies or entities that are not affiliated with the insurance company or financial institution. Insurance companies must comply with the     provisions set out in Mississippi Department of Insurance Regulation 2001-1,”Privacy of Consumer Financial and Health Information Regulation”.
  1. Policyholders shall have the right to be treated fairly and honestly when making a claim.

Implied Coinsured

There is no restriction on the ability of a landlord’s insurer to pursue the tenant for subrogation as a result of damages paid by the insurer which were caused by the tenant.  Paramount Ins. Co. v. Parker, 112 So. 2d 560 (Miss. 1959).

Indemnity

The obligation to indemnify may result from a contractual relationship, implied contractual relationship, or liability imposed by law.  Hartford Cas. Ins. Co. v. Halliburton Co., 826 So. 2d 1206, 1216 (Miss. 2001).

The general rule governing implied indemnity (common law indemnity) for tort liability is that a joint tortfeasor, whose liability is secondary as opposed to primary, or is based upon imputed or passive negligence, as opposed to active negligence, may be entitled, upon an equitable consideration, to shift his responsibility to another joint tortfeasor.  Strickland v. Rossini, 589 So.2d 1268, 1276 (Miss. 1991).  This is generally referred to as the “active-passive” indemnification rule.

 

Insurable Interest

Mississippi follows the general rule that in order to be entitled to proceeds from an insurance policy, the purchaser of the policy must have an insurable interest in the property or life insured. See, e.g., Southeastern Fidelity Ins. Co. v. Gann, 340 So.2d 429 (Miss. 1976); National Life & Accident Ins. Co. v. Ball, 157 Miss. 163, 127 So. 268 (1930); see also Am.Jur.2d Automobile Insurance § 41 (1980).  An insurable interest must exist in an insured when the contract is entered for it to be effective.  Mississippi Farm Bureau Mut. Ins. Co. v. Todd, 492 So. 2d 919, 931 (Miss. 1986) (citing Gann, 340 So. 2d 429 (Miss. 1976)).  Obviously, a party who holds legal title has the requisite insurable interest.  However, the Mississippi Supreme Court has found an insurable interest in property even though legal title was elsewhere.  All that Mississippi requires in order to have an insurable interest is that a person derive a benefit from the property’s existence or would suffer loss from its destructionSoutheastern Fidelity Ins. Co. v. Gann, 340 So.2d 429 (Miss. 1976).

Insurance Department

Mississippi Insurance Department, 1001 Woolfolk State Office Building, 501 North West Street, Jackson, MS 39201.  Phone: 601-359-3569.  Web address: http://www.mid.ms.gov.

Interest

There is no “legal rate of interest” in Mississippi for judgments.  Miss. Code Ann. § 75-17-7 allows the recovery of both prejudgment and post-judgment interest.  If there is a contractual rate of interest, the contract rate will be applied.  If not, the judge is given the discretion to determine the appropriate rate of interest.

Miss. Code Ann. § 75-17-7 gives courts the discretion to award simple or compound interest.  In re Guardianship of Duckett, 991 So. 2d 1165, 1182 (Miss. 2008).    The Mississippi Supreme Court has routinely upheld rates of 8% (and higher in some cases).

Subject to certain exceptions, the legal rate for “notes, accounts and contracts” is 8% per annum, calculated according to the actuarial method.  Miss. Code Ann. § 75-17-1. See also § 87-7-3 (1% per month on unpaid construction contracts).

Prejudgment interest is only available if damages are fixed and liquidated.  Falkner v. Stubbs, No. 2010 CT 01664 (Miss. August 22, 2013).  Prejudgment interest must be pleaded in the complaint.

 

Life Insurance

Proceeds of a life insurance policy become due on the date of the death of the insured.  Interest shall be computed from the insured’s death until the date of payment and shall be computed at the rate of interest guaranteed by the policy or at the current rate of interest applicable to death benefits.  Miss. Code Ann. § 83-7-6.

Intoxication Level

 

The legal limit for a person 21 or older is .08 percent BAC and .02 percent BAC for a person under the age of 21.  Miss. Code Ann. § 63-11-30.  See also DUI.

Joint and Several Liability

ince 2004, simple negligence actions apply only several liability.  A party is only responsible for his share/percentage of apportioned fault.

Joint and several liability only exists in Mississippi when individuals knowingly pursue a common plan or design to commit a tortious act.  Fellow defendants acting in concert have a right of contribution between one another.  Miss. Code Ann. § 85-5-7.

All participants to the occurrence, including any absent tortfeasors, must be considered in the apportionment of fault.  Estate of Hunter v. General Motors Corp, 729 So. 2d 1264, 1272-73 (Miss. 1999).  See also Contribution.

______________________

A word of caution is necessary whenever legal issues are at stake. The information contained in these posts is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report or laws may have changed or been reinterpreted.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, particularly before denying any first-party claims, you should consult with your counsel or the attorneys at Holcomb Dunbar.

Mississippi Insurance Law – Part 3

Mississippi Insurance Law – Part 3

MISSISSIPPI Insurance-Related Law  — An A to Z Guide

Here’s the next post sharing our 2016 update.  If you like a full copy or have any questions, please email or call.

Excess Verdicts

See Bad Faith.

Exclusions

In 2015, Mississippi enacted an amendment to the definition of “proof of financial responsibility” and clarified that liability insurance “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.”   Miss. Code Ann. § 63-15-3(j) (as amended 2015).  This amendment became effective July 1, 2015.

This amendment was in reaction to the 2014 case of Lyons v. Direct General Ins. Co. of Mississippi, 138 So. 3d 887 (Miss. 2014), where the Mississippi Supreme Court held the named driver exclusion invalid to the extent it reduced liability coverage below the minimums required by law.

The enactment of the amendment to § 63-15-3(j) statutorily abrogated the Lyons decision for all policies in effect after July 1, 2015, however, it is still controlling for policies pre-dating the amendment.

In 2016, the legislature enacted a similar amendment permitting exclusions for carriers issuing SR-22 policies.  Miss. Code Ann. § 63-15-43.

Named Driver Exclusion

The 2015 amendment to the insurance statutes now permits the Named-Driver exclusion for liability policies in effect after July 1, 2015.  See also, Exclusions.

The “named-driver exclusion” was held invalid by the Mississippi Supreme Court in 2014, except as it applies above the minimum limits (currently 25/50/25).  Lyons v. Direct General Ins. Co. of Mississippi, 138 So. 3d 887 (Miss. 2014).  However, this case has now been abrogated by statute for purposes of policies in effect after July 1, 2015.  The prohibition against this exclusion (for the minimum limits) is still valid for policies that pre-date the amendment.

For UM purposes, however, it is not a valid exclusion for the minimum limits.  See also Uninsured Motorist, Exclusions.

 

Household Exclusion

The household exclusion was likely affected by the Lyons decision referenced above in the Named Driver Exclusion section.  Lyons v. Direct General Ins. Co. of Mississippi, 138 So. 3d 887 (Miss. 2014).  Since the enactment of the amendment to § 63-15-3(j), the case has been abrogated and exclusions and limitations for liability coverage are permitted after July 1, 2015.

The Household Exclusion is not a valid exclusion for UM policies.  Accordingly, an injured passenger may recover under a driver’s uninsured motorist policy where the household exclusion prevents recovery under liability policy.  Allstate Ins. Co. v. Randall, 753 F.2d 441 (5th Cir. 1985).

See also Uninsured Motorist, Exclusions.

 

Family Immunity

Inter-spousal immunity has been abolished in Mississippi.  Burns v. Burns, 518 So. 2d 1205 (Miss. 1998).

Parent-unemancipated child immunity has been abolished in negligent operation of automobile cases.  Smith v. Holmes, 921 So. 2d 283, 285 (Miss. 2005).  Parents may maintain suits against their children and vice versa.  Ales v. Ales, 650 So. 2d 482, 487 (Miss. 1995).

 

Family Purpose Doctrine

The Family Purpose Doctrine by which a family member’s negligence is imputed to another while driving an automobile has been expressly rejected in Mississippi.  Prewitt v. Walker, 97 So. 2d 514, 516 (Miss. 1957); Smith v. Dauber, 125 So. 102, 103 (Miss. 1929).

Financial Responsibility Law

The minimum liability coverages required by Mississippi law are 25,000/50,000/25,000.

Mississippi’s financial responsibility statute, Miss. Code Ann. §63-15-43, provides, in part, that insurers “[s]hall pay on behalf of the insured named therein and any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured, all sums which the insured becomes legally obligated to pay as damages arising out of the ownership, maintenance or use of such motor vehicle . . . .”   This statute, however, does not set the minimum coverage requirements for standard automobile policies.  Instead, the requirement of minimum limits is found by turning to Miss. Code Ann. § 63-15-4 and §63-15-3(j).  In these sections, we find the required minimum limits of 25/50/25.

 

Since 2001, Mississippi has required motorists to carry minimum limits of liability insurance. Miss. Code Ann. §63-15-4 provides that every motor vehicle operated in this state shall have an insurance card maintained in the vehicle as proof of liability insurance that is in compliance with the liability limits required by §63-15-3(j).  Miss. Code Ann. §63-15-3(j) defines “Proof of financial responsibility” as “proof of ability to respond to 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” $25,000 per person/$50,000 per accident because of bodily injury or death and $25,000 because of property damage in any one accident.”

The insured may elect to obtain UM/UIM limits in at least the minimum provided for by the above statute and up to the limits of liability purchased.  All policies are required to contain minimum UM coverage, unless rejected in writing by any named insured.  Miss. Code Ann. § 83-11-101, et seq.

 

Frivolous Lawsuits

 

The court may order a party, his attorney, or both to pay the opposing party’s expenses, including attorney’s fees, if the court determines a motion or pleading is frivolous or filed in order to harass or delay.  Miss. R. Civ. P. 11(b).  See also, Litigation Accountability Act.  Miss. Code Ann. § 11-55-5.

______________________

A word of caution is necessary whenever legal issues are at stake. The information contained in these posts is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report or laws may have changed or been reinterpreted.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, particularly before denying any first-party claims, you should consult with your counsel or the attorneys at Holcomb Dunbar.

 

Mississippi Insurance Law – Part 2

MISSISSIPPI Insurance-Related Law  — An A to Z Guide

Here’s the next post sharing our 2016 update.  If you like a full copy or have any questions, please email or call.

Bad Faith

 

Punitive damages are available to the insured in addition to the amount of the claim in some cases when the insurance company wrongfully refuses to pay a claim.  The jury may consider these damages only when the evidence has established that the insurer acted with (a) malice or (b) gross negligence or reckless disregard for the rights of others.  Scott v Transport Indemnity Co., 513 So. 2d 889 (Miss. 1987).  See also, Miss. Code Ann. § 11-1-65, regarding punitive damages.

 

If the insurer has a “legitimate or arguable reason” for denying the claim, the insurer cannot be liable for bad faith. Jenkins v. Ohio Cas. Ins. Co., 794 So. 2d 228 (Miss. 2001).  It is important to document all support and explanation for denying or delaying a claim.  See also Negligent Investigation.

 

Excess Verdicts – Settlement within Policy Limits

 

When a suit covered by a liability insurer is for an amount in excess of the policy limits, and an offer of settlement is made within the policy limits, the insurer has a fiduciary duty to look after the insured’s interest to the same extent as its own, and also to make a knowledgeable, honest and intelligent evaluation of the claim in consideration with its ability to do so.  A failure to do this may subject the carrier to all damages, even in excess of the policy.  Hartford Acc.& Indem. Co. v. Foster, 528 So. 2d 255, 265 (Miss. 1988).

 

Extra-contractual damages – Mistake or Clerical Errors

 

A carrier can be liable for certain expenses incurred by an insured even if the conduct falls short of bad faith or punitive conduct.  If an insurer’s failure to pay a claim was the result of a mistake or clerical error, the insurer may be liable for extra-contractual damages caused by anxiety resulting from the delay in payment.  Additional expenses including attorney’s fees which are reasonably incurred in an effort to correct the mistake may also be recovered. These kinds of damages are often referred to as “Veasley damages” after the case that created the rule.  Universal Life Ins. Co. v. Veasley, 610 So. 2d 290, 295-96 (Miss. 1992).

 

Negligent Investigation

 

An insurer has a duty to perform an adequate and prompt investigation of an insurance claim.  The denial of a claim without the proper investigation may give rise to punitive damages.  Gilbert v. Infinity Ins. Co., 769 So. 2d 266, 269 (Miss. App. 2000) (citing Bankers Life & Casualty Company v. Crenshaw, 483 So. 2d 254, 276 (Miss. 1985)).

 

“Obviously, some delay in evaluating claims is inevitable, legitimate and socially useful. Insurers are entitled, and in fact legally obligated, to investigate fully the legitimacy of claims, and some skepticism in evaluating claims is appropriate. Since an insurer has an obligation under Mississippi law to investigate claims, discharging that duty is not bad faith. However, an inadequate investigation of a claim may create a jury question on the issue of bad faith.”  Pilate v. American Federated Ins. Co., 865 So. 2d 387 (Miss. App. 2004) (quoting Jeffrey Jackson,  Mississippi Insurance Law § 12:5 (2001)).

 

At a minimum, the insurer must determine whether the policy provision at issue has been voided by state or federal court, interview its agents and employees to see if they have knowledge relevant to the claim, and make a reasonable effort to secure all relevant medical records before denying the claim.  Eichenseer v. Reserve Life Insurance Co., 682 F.Supp 1355, 1366 (N.D. Miss. 1988).

 

See also Delay of Payment of Claim

 

Delay of Payment of Claim

 

Although Mississippi courts are skeptical of such claims, they have permitted claimants to recover damages on bad faith claims when resolution of an insurance claim is merely delayed rather than ultimately denied.  See, e.g., Travelers Indem. Co. v. Wetherbee, 368 So. 2d 829, 834–35 (Miss. 1979) (affirming jury award for punitive damages where insurer withheld payment for eight months); AmFed Cos., LLC v. Jordan, 34 So. 3d 1177, 1191 (Miss. App. 2009) (affirming trial judge’s decision to submit punitive damages issue to the jury in a delay-of-payment case); Pilate v. Am. Federated Ins. Co., 865 So. 2d 387, 400 (Miss. App. 2004) (“[T]here may be cases where a delay [of payment for one month] could possibly be sufficient grounds for a bad faith claim.”); see also Essinger v. Liberty Mut. Fire Ins. Co., 529 F.3d 264, 271 n.1 (5th Cir. 2008) (citation omitted) (“Inordinate delays in processing claims and a failure to make a meaningful investigation have combined to create a jury question on bad faith.”); but see Tutor v. Ranger Ins. Co., 804 F.2d 1395, 1399 (5th Cir. 1986) (per curiam) (reversing jury’s punitive damage award where payment was delayed during an ongoing dispute between insured and insurer); Caldwell v. Alfa Ins. Co., 686 So.2d 1092, 1098 (Miss. 1996)(affirming grant of summary judgment where insurance company delayed payment for three months in complex wrongful death claim, including a six-week delay after it completed its investigation).

 

A recent Federal Court case in the 5th Circuit analyzed a delay in payment of a UM claim by State Farm.  The court found several three to six month periods of delay in the three year claims history that State Farm had no arguable or legitimate basis for.  Accordingly, these gaps of unjustified delay and inactivity created a jury question of bad faith against the carrier.  See James v. State Farm, 743 F.3d 65 (5th Cir. 2014).

 

A delay is not attributable to an insurer where the insured or his counsel refuses to cooperate or provide the necessary information.  If an insured’s lawyer advises the insurer to stop its investigation pending his sending medical records, the resulting delay until the lawyer sends the records is attributable to the insured. However, as the burden is on the insurer to gather all necessary medical records, if the insurer fails to inform the lawyer of critical information necessary to further its investigation, the delay in obtaining that information is not attributable to the lawyer but to the insurer.  See James v. State Farm, 743 F.3d 65 (5th Cir. 2014).

 

Cancellation

 

Cancellation/Auto

 

The statutory cancellation scheme for auto policies applies once the initial policy has remained in effect for 60 days.  Miss. Code Ann. § 83-11-3(2).  Cancellation may be for any reason prior to the 60th day of the initial policy term as long as it is mailed or delivered by the insurer prior to that date.  Id.

 

Once the 60 day time period has passed an insurer may only cancel a policy based on (1) nonpayment of a premium; (2) the suspension or revocation of an insured’s, or regular operator’s, drivers license or motor vehicle registration, or (3) the insured’s failure to make timely payment of dues to an association or organization as required by the policy.  Miss. Code Ann. § 83-11-3(1).

 

Cancellation requires 30 days notice for any reason other than non-payment of premium.  Cancellation for non-payment of premium requires at least 10 days notice.  Miss. Code Ann. § 83-11-5.

 

Cancellation/Homeowners

 

Miss. Code Ann. § 83-5-28 applies the above general guidelines to cancelations, reductions, or non-renewals of liability insurance coverage, fire insurance coverage, or single premium multiperil insurance coverage.

 


Non-Renewal

 

Notice of non-renewal must be given at least thirty (30) days in advance. Miss. Code Ann. § 83-11-7.  Renewal of a policy shall not constitute a waiver or estoppel with respect to grounds for cancellation which existed before the effective date of such renewal.  Miss. Code Ann. § 83-11-7.  Cancellation for non-payment of premium requires at least 10 days notice.  Miss. Code Ann. § 83-11-5.

 

Comparative Negligence

 

Mississippi is a pure comparative fault jurisdiction.  A claimant 99% at fault may recover 1% from a responsible party.  Damages will be diminished by the jury in proportion to the amount of negligence attributable to the person injured.  Miss. Code Ann. § 11-7-15.  See also, Joint and Several Liability.

Consortium

 

Damages for loss of consortium include conjugal rights, and a broad range of services performed by the spouse, in addition to intangible mental and emotional damages.  Coho Resources, Inc. v. McCarthy, 829 So. 2d 1, 20 (Miss. 2002) (citing Tribble v. Gregory, 288 So. 2d 13, 16-17 (Miss. 1974)).

 

In a loss of consortium action, the plaintiff’s recovery is reduced by the relative percentage of the injured spouse’s comparative negligence.  Choctaw, Inc. v. Wichner, 521 So. 2d 878 (Miss. 1988).

 

Losses of consortium claims are not separate occurrences under the terms of a standard insurance policy.   The claim of the injured person as well as the spouse are payable under the same “per person” limit.  Crum v. Johnson, 809 So. 2d 663, 666 (Miss. 2002).

 

Contribution

 

The right of contribution exists between those held jointly liable in a judgment.  A defendant will be liable for contribution to other joint defendants only for the percentage of fault assessed to him.  Miss. Code Ann. § 85-5-7(4).  The right of contribution exists between those held joint and severally liable due to defendants acting in concert.  Miss. Code Ann. § 85-5-7(6).

 

Cooperation and Assistance

 

A breach of the cooperation clause in an insurance contract is considered a material breach if prejudicial to the defense and relieves the insurer of the duty to defend or indemnify its insured under the policy.  State Farm Mut. Auto. Ins. Co. v. Commercial Union Ins. Co., 394 So. 2d 890, 893 (Miss. 1981).  However, non-prejudicial misrepresentations will be considered immaterial.  Id.

 

The insurer bears the burden of showing both attempted diligence in securing the insured’s cooperation, and failure of the insured to cooperate in a material matter.  Nationwide Mut. Ins. Co. v. Tillman, 161 So. 2d 604, 616 (Miss. 1964).

 

The insured may also breach the cooperation clause by misrepresenting facts surrounding the accident or by collusively assuming liability for the accident. Employers Mut. Cas. Co. v. Ainsworth, 164 So. 2d 412, 418 (Miss. 1964).  However, unintentional misrepresentations do not establish a breach of the duty to cooperate, especially if the insured promptly corrects the misrepresentations.  Id.

 

Courts

 

Mississippi has a two-tier appellate court system, the Mississippi Supreme Court and the Mississippi Court of Appeals.  Decisions of the Chancery, Circuit, and Court of Appeals may be appealed to the Supreme Court.  Supreme Court: 9 justices, Court of Appeals: 10 judges.  Circuit Court has a jurisdictional minimum of $200 and no maximum.  Miss. Code Ann. § 9-7-81.  County Court has a jurisdictional limit of $200,000.  Miss. Code Ann. § 9-9-21.  Justice Court has jurisdiction over small claims of $3,500 or less.  Miss. Code Ann. § 9-11-9.

 

______________________

A word of caution is necessary whenever legal issues are at stake. The information contained in these posts is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report or laws may have changed or been reinterpreted.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, particularly before denying any first-party claims, you should consult with your counsel or the attorneys at Holcomb Dunbar.

Mississippi Insurance Law – Part I

Mississippi  Insurance-Related Law  — An A to Z Guide

Animals

Domestic Animals

Mississippi follows what is referred to as the “one free bite” rule.  If you did not know that your dog would bite someone, you are not responsible for that first injury.  Once you know (or should know) that your pet is likely to bite someone, you are responsible for taking reasonable care to prevent injury.  Further, all that is required is actual or constructive knowledge of a dangerous propensity, which can be much less than an actual bite.  The injury can be less than a bite as well, such as scratching or being knocked over.

 

There must be some proof that the domestic animal has exhibited some dangerous propensity or disposition prior to the complained of incident, that the owner knew or should have known of this propensity or disposition, and that the owner should have foreseen that the animal was likely to injure someone.  Poy v. Grayson, 273 So. 2d 491, 494 (Miss. 1973).

 

An aggressively growling dog that also chases people is enough to create a jury question of whether there was notice of its dangerous propensity.  Mongeaon v. A&V Enterprises, Inc., 733 So. 2d 170 (Miss. 1997).  However, barking is not considered a propensity separate from its natural inclinations.  Poy v. Grayson, 273 So. 2d 491 (Miss. 1973), recently discussed in Ringo v. Wilson, 2016WL612093 (Feb. 16, 2016).

 

However, the “one-free bite” rule may not apply when the type of animal involved has inherent characteristics that place the premises owner on notice of a dangerous propensity.  Olier v. Bailey, 2015 WL 1611772 (Miss. 2015).  Olier involved a goose who gave chase to a guest who fell when attempting to flee an attacking goose.  The particular goose had not previously attacked anyone.  The court, however, found that geese in general have such a propensity such that a premises owner should have known there was some likelihood that it might attack guests.  Some breeds of dogs (i.e. pit bulls) may be considered to have inherently dangerous propensities.

 

Livestock (Horses, Cows, etc.)

There is a presumption of negligence against the owner of livestock loose on a federal or state highway or highway rights-of-way which cause damage to property.  This presumption does not apply to county roads.  The burden is on the owner to show that he was not negligent, see Miss. Code Ann. § 69-13-111, for example, by showing that his fence was in good repair and that he regularly and properly maintained it.

 

Strict liability applies to trespassing livestock. See Miss. Code Ann. § 69-13-19.  For example, if a livestock owner’s cow or horse eats or tramples the crops on the property of another, liability will be automatic.

 


Non-Domestic (Wild) Animals

Owners of wild animals are strictly liable for the personal injury caused by them.  Byrnes v. City of Jackson, 140 Miss. 656, 105 So. 861, 863 (1925).  For example, an owner would be strictly liable for the injury caused by their pet black bear even if the bear was not known to have a dangerous propensity.

 

Assignments

Mississippi law allows for the assignment of personal claims, including injury claims.  Miss. Code Ann. § 11-7-3.  Wrongful death claims, however, are not assignable.  Coleman Powermate, Inc. v. Rheem Manufacturing Co., 880 So. 2d 329 (Miss. 2004).  Only those individuals listed in the wrongful death statute can bring a wrongful death cause of action.  Id.

 

There is no hospital or medical lien statute in Mississippi (except as to providers of burn care).  However, a valid assignment of a person’s right to recover for medical expenses to a medical provider is enforceable.

 

NOTE: Pay close attention to the language of the assignment.  Some purported assignments are only agreements by the patient to remit payments from insurance to the medical provider and are not actual assignments of the patient’s right of action.  Keep in mind that parents and guardians cannot assign the rights or benefits due to a minor child, unless the agreement is approved by a Chancery Court.

 

Mississippi recently enacted an amendment to the Health Insurance statutes, §§ 83-9-3, and 83-9-5, to prevent any health insurance policy from containing provisions that restrict an insured from assigning benefits to a health care provider.  In addition, the statute permits an insured to provide the health insurance carrier with a written directive to pay the health care provider all or a portion of the policy benefits that have been so assigned.  These new amendments to the statutes became effective July 1, 2013.  They appear to only be applicable to health insurance policies and not automobile or other insurance policies.

 

In 2014, these Health Insurance statutes were amended again (§§ 83-9-3, and 83-9-5), to insert a provision requiring insurance carriers doing business in Mississippi to honor assignments for a period of 1 year from the dates of the assignment or until the insured revokes the assignment.  This provision became effective July 1, 2014.  Again, these sections apply to health insurance and do not appear applicable to automobile insurance policies.

 

In 2016, the Health Insurance statutes were amended to remove the provision that permitted the patient to revoke the assignment.  This provision is effective July 1, 2016.  These sections continue to apply to health insurance and do not appear applicable to automobile insurance policies at this time.  NOTE: Attempts continue to be made to amend these sections of the code to apply these new laws to automobile insurance.  Please consult the current status of the law in this area.

 

Automobile Guest

There is no “Guest Statute” in Mississippi.  A driver owes passengers a duty of ordinary care.  Hatcher v. Daniel, 87 So. 2d 490, 492 (Miss. 1956).

 

A passenger assumes the risks of obvious danger not created by the driver.  Griffin v. Holliday, 233 So. 2d 820, 822 (Miss. 1970).

 

Contributory negligence rules may apply when passenger fails to exercise reasonable care for his own safety, i.e. riding with an obviously intoxicated driver.  Hill v. Dunaway, 487 So. 2d 807, 811 (Miss. 1986).

______________________

A word of caution is necessary whenever legal issues are at stake. The information contained in these posts is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report or laws may have changed or been reinterpreted.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, particularly before denying any first-party claims, you should consult with your counsel or the attorneys at Holcomb Dunbar.

MISSISSIPPI INSURANCE LAW

Mississippi  Insurance-Related Law  — An A to Z Guide

Over the next few posts, Holcomb Dunbar will share its 2016 update of  its summary of Mississippi Insurance law and related topics.  If you would like a full copy or have any questions, please feel free to email or call.

However, a word of caution is necessary whenever legal issues are at stake. The information contained in these posts is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report or laws may have changed or been reinterpreted.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, particularly before denying any first-party claims, you should consult with your counsel or the attorneys at Holcomb Dunbar.

 

20 most helpful state insurance websites | PropertyCasualty360

How helpful is your state’s insurance department website? Most fall short.

Source: 20 most helpful state insurance websites | PropertyCasualty360

15 fascinating characteristics and habits of American drivers

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Dunbar and Watts Named to The Best Lawyers in America®

Jack Dunbar

Jack F. Dunbar

Mike Watts

Michael N. Watts

Holcomb Dunbar attorneys Jack Dunbar and Mike Watts were recently selected for inclusion in The Best Lawyers in America®

 Selection for Best Lawyers is based on an exhaustive peer-review survey of over 4 million confidential evaluations by the top attorneys in the country.  The Best Lawyers® publication has been described by The American Lawyer as “the most respected referral list of attorneys in practice.”

Dunbar was recognized in the areas of Arbitration, Litigation and Personal Injury Litigation- Defendants.  This marks the 34th consecutive year for Dunbar’s selection.  Dunbar is a past president of the Mississippi Bar Association and was a member of the American Bar Association’s (ABA) Board of Governors from 1994 to 1997, serving as a member of the Board’s Executive Committee in 1997.  He also served as a member of the ABA’s House of Delegates.  Dunbar is the 2010 recipient of Mississippi Bar Foundation’s 2010 Professionalism,   A/V rated by Martindale Hubbell, a Fellow of both the Mississippi and American Bar Associations.

Watts was recognized in the area of Insurance Law.  Watts served on the Mississippi Board of Bar Commissions for 1995 to 1998, is A/V rated by Martindale Hubbell, and a Fellow of the Mississippi Bar Association.

Holcomb Dunbar is an Oxford, MS law firm representing local, regional, and national clients. The firm specializes in litigation, including insurance defense, product liability, medical malpractice, complex bankruptcies, and white collar crime.  Holcomb Dunbar is the Mississippi member of TAGLaw, an invitation-only network of 140 law firms located in more than 100 countries and has earned recognition as a “Go-To” law firm in the area of litigation from Corporate Counsel magazine.  The current firm was organized in 1970, but traces its roots to 1885 through its predecessor firms.  For more information, visit www.holcombdunbar.com.

 

6 things you need to know about insuring a condo — before buying one

Here’s some good information to consider when insuring your condo.

Source: 6 things you need to know about insuring a condo — before buying one

Appeals Court Rules Against NYC Cabbie Challenging GPS Tracking of Drivers – Law Blog – WSJ

A New York City taxi driver challenging the constitutionality of mandated GPS-tracking of cabs has gotten a red light from a federal appeals court.

Source: Appeals Court Rules Against NYC Cabbie Challenging GPS Tracking of Drivers – Law Blog – WSJ

Mississippi Premises Liability – Part V

This is Part V, the final installment, of our 2016 Mississippi Premises Liability publication. We hope this information is helpful. But keep in mind that the application and impact of laws can vary widely based on the specific facts involved. This information it should not be used as a substitute for consultation with legal or other competent advisers.

SPECIFIC CIRCUMSTANCES

ANIMALS

Mississippi follows the “one free bite” rule. The first bite effectively provides the land owner with notice of the dangerous propensity of the animal.

There must be proof that the domestic animal exhibited some dangerous propensity or disposition prior to the alleged injury, that the owner knew or should have known of the propensity or disposition, and that the owner should have foreseen that the animal was likely to attack someone. Poy v. Grayson, 273 So.2d 491 (Miss. 1997).

An aggressively growling dog that also chases people is enough to create a jury question of whether there was notice of its dangerous propensity. Mongeaon v. A&V Enterprises, Inc., 733 So.2d 170 (Miss. 1997). However, barking is not considered a propensity separate from its natural inclinations. Poy v. Grayson, 273 So.2d 491 (Miss. 1973), recently discussed in Ringo v. Wilson, 2016WL612093 (Feb. 16, 2016).

However, the “one-free bite” rule may not apply when the type of animal involved has inherent characteristics that place the premises owner on notice of a dangerous propensity. Olier v. Bailey, 2015WL1611772 (Miss. S. Ct). Olier involved a goose who gave chase to a guest who fell when attempting to flee an attacking goose. The particular goose had not previously attacked anyone. The court, however, found that geese in general have such a propensity that a premises owner should have known there was some likelihood that it might attack guests.

APARTMENT COMPLEX MATCHING ROOMMATES

An apartment complex that matches roommates through screenings and background checks does not have a heightened duty to tenants. Galanis v. CMA Management Co., 175 So.3d 1213 (Miss. 2015). However, the Court reversed the summary judgment because the apartment failed to disclose the roommate’s previous criminal conviction under the standard premises owner’s duty of reasonable care.

COMMON AREAS

If the injury occurs in a “common area” the court will look to who had control of the area. For example, in Howell v Holiday, 2011 CA 01789-COA (Miss. Ct. App. 2013), the court found that plaintiff’s status as an invitee or licensee was a jury question. There the plaintiff tripped over an extension cord in front of defendant’s hair salon. The plaintiff was not a customer of the hair salon, but parked in the parking lot after hours to attend an event unrelated to the hair salon. Here the jury must determine who had control over the common area of the premises and responsibility for the alleged dangerous condition of the property.

THRESHOLDS

Raised thresholds are generally not considered unreasonably dangerous. In McGovern v. Scarborough, 566 So.2d 1225 (Miss. 1990), the Mississippi Supreme Court found that “a raised threshold was not unreasonably dangerous as a matter of law because the floor itself was at least two inches higher than the exterior walkway. See, Dickinson v. Vanderburg, 141 So.3d 455 (Miss. Ct. App. 2014)(affirming that undamaged thresholds, curbs and steps which are common architectural features are not unreasonably dangerous).

CRACKS IN PARKING LOTS AND SIDEWALKS

Imperfections to a parking lot are generally not considered unreasonably dangerous conditions. First Nat’l Bank of Vicksburg v. Cutrer, 214 So.2d 265 (Miss. 1968). Normally occurring dangers do not become hazardous simply because they contain minor imperfections.

Some examples of where Mississippi Courts have found such conditions to not be unreasonably dangerous:

Differential between sidewalk sections of three to 4 inches are not unreasonably dangerous. City of Biloxi v. Schamback, 157 So.2d 386 (Miss. 1963).

Cracks on the edge of a concrete riser are not unreasonably dangerous conditions. First Nat’l Bank of Vicksburg v. Cutrer, 214 So.2d 465 (Miss. 1968)

One-inch elevation of a sidewalk did not create a dangerous condition. Bond v. City of Long Beach, 908 So.2d 879 (Miss. Ct. App. 2005).

A crevice in the street stretching a half-inch to 3 inches by 18 inches to 2 feet was not enough to make a street unsafe. City of Greenville v. Laury, 159 So. 121 (Miss. 1936)(Cited with approval in Knight v. Picayune Tire Svcs. Inc., 78 So.2d 356 (Miss. Ct. App. 2011)).

Hole between sidewalk sections covered by grass not unreasonably dangerous. City of Meridian v. Raley, 118 So.2d 342 (Miss. 1960).

Threshold 3/4 of an inch, not unreasonably dangerous. McGovern v. Scarborough, 566 So.2d 1225 (Miss. 1990).

Three-inch depression in a sidewalk not unreasonably dangerous. City of Meridian v. Crook, 69 So. 182 (Miss. 1915)(To hold otherwise “would be equivalent to holding that sidewalks in the residence portion of our cities must not deviate three inches from a perfectly smooth surface… The practical result rendering municipalities insurers of the safety of pedestrians.” Id. at 184).

Crack in sidewalk large enough to catch the heel of a pedestrian’s shoe was not unreasonably dangerous. Rowe v. City of Winona, 159 So.2d 282 (Miss. 1964), aff’g directed verdict.

Seven and one-half inch high side walk not unreasonably dangerous. Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473 (Miss. 1967).

Six-inch high curb did not create jury question following a fall. Kroger v. Ware, 512 So.2d 1 281 (Miss. 1987).

An uneven concrete gap in parking a lot was not unreasonably dangerous. Penton v. Boss Hogg Catfish Cabin, LLC, 42 So.3d 1208 (Miss. Ct. App. 2010), Aff’g summary judgment.

Pothole/crack in store’s parking lot did not create an unreasonably dangerous condition because it was of the sort that customers of a business may normally expect to encounter in a parking lot. Jones v. Wal-Mart Stores East, LP, 2016WL1314531 (April 5, 2016), Aff’g summary judgment.

TEST DRIVING A BIKE INSIDE STORE

Leaving its bicycles unlocked and readily available to customers was not an unreasonably dangerous condition in a store. Wilson ex rel. Purser v. Wal-Mart Stores, Inc., 161 So.3d 1128 (Miss. 2015).

And the retail store was not liable for injury resulting from minors who removed the bikes from the rack and rode them around the store.

TRIP OVER PARKING BUMPER

In Jones v. Imperial Palace of Mississippi, LLC, 147 So.3d 318 (Miss. 2014), the Supreme Court affirmed dismissal for the premises owners. Plaintiff alleged that a parking bumper was misaligned and jutted into his path. A casino employee testified that he had reported to his superiors that generally the parking bumpers sometimes became misaligned. However, this testimony was not specific to the particular parking bumper and there was no testimony of how long the particular bumper had been out of place. The Court specifically rejected any effort to use the general knowledge of occasional misalignment of the bumpers. The evidence must be specific to the particular dangerous condition.

CONCRETE BOLLARDS

The Mississippi Supreme Court has provided that as a matter of law, there is no duty owed by a convenience store owner to persons inside the store to erect barriers in order to prevent vehicles from driving through the store’s plate glass window. Carpenter v. Stop-N-Go Markets of Georgia, Inc., 512 So.2d 708 (Miss. 1987).

This rule has consistently been applied to injuries occurring outside the store as well. See, Heard v. Intervest Corp., 856 So.2d 708 (Miss. 1987); Blount v. The Pantry Inc., 936 So.2d 967 (Miss. Ct. App. 2006), and Stanley v. Scott Petroleum Corp., 2015 WL 148915 (Miss. Ct. App. Jan. 13, 2015)(not released for publication)(patrons at a gas station walk-up window hit by out of control vehicle).

However, in Cheeks v. AutoZone, Inc. 2014 WL 4748099 (Miss. 2014), the Mississippi Supreme Court found that AutoZone recognized the hazard by constructing and placing bollards around its entrance. The court noted that certain factual circumstances give rise to the possibility for a duty to arise, such as where the store had assumed the duty by the initial construction of the bollards.

LIABILITY TO INDEPENDENT CONTRACTOR

An independent contractor while on the premises performing work is generally deemed a business invitee. As such, the premises owner has a duty to provide him a reasonably safe place to work or give warnings about any dangers. See, Nelson v. Sanderson Farms, Inc. 969 So.2d 45, 50 (Miss. Ct. App. 2006). Additionally, the premises owner has a duty to conduct reasonable inspections to discovery dangerous conditions on the subject premises. Pigg v. Express Hotel Partners, 991 So.2d 1197, 1199 (Miss. 2008). There is however an exception to the general rules with respect to an independent contractor. A homeowner cannot be held liable for injuries to an independent contractor that “result [] from dangers of which the contractor knew or reasonably should have known. Miss. Code Ann. ¶11-1-66. See, Wilbanks v. Hickman, 2014-CA-01354-COA (Feb. 16, 2016) and Tanner v. Roseburg Forest Products of South, Limited Partnership, 185 So.3d 1062 (Miss. Ct. App. 2016) (holding that that Hoffman exception does not usurp the statutory immunity).

Miss. Code Ann. ¶11-1-66 provides:

No owner, occupant, lessee or managing agent of property shall be liable for the death or injury of an independent contractor or the independent contractor’s employees resulting from dangers of which the contractor knew or reasonably should have known.

DUTY TO RENDER AID

A property owner who holds its property open to the public is in a special relationship with those who accept the invitation to come onto their property and owes an affirmative duty to aid the injured once learning of the injury. Spotlight Skating Rink, Inc. v. Barnes ex rel. Barnes, 988 So.2d 364 (Miss. 2008). This duty includes the duty to take reasonable action to give invitees first aide and to care for them until they can be cared for by others, such as emergency medical technicians.

In 2014, the Mississippi Court of Appeals affirmed this standard and further provided that the duty to render aid does not include performing EMT-level medical rescue efforts such as CPR or using at automated external defibrillator when so trained or available. O’Gwin v. Isle of Capri-Natchez, Inc., 139 So.3d 783 (Miss. Ct. App. 2014).

Recent legislation has created a duty to a trespasser if the owner discovers the trespasser in a position of peril on the property and fails to use reasonable care to prevent injury. It is unclear exactly what effect, if any, this new legislation may have on this line of cases. See Trespasser- Standard of Care.
AUTOMATIC DOORS

Automatic doors are analyzed under the general premises liability standard. The premises owner must have actual or constructive knowledge of the particular hazard, and fail to remedy to warn its invitees. Davis v. Office Max, 131 So.3d 588 (Miss. Ct. App. 2013).

Courts have applied the res ipsa loquitur doctrine to automatic door accidents. This doctrine provides that negligence can be inferred from the particular factual circumstances. However, courts are reluctant to infer negligence and hazard that this doctrine must be applied cautiously. The elements that an injured party must carry to establish this doctrine are:

1. The premises owner had control or management of the automatic doors;
2. The type of injury was in the ordinary course of things that would not have happened if the premises owner had used proper care; and
3. The injury was not the result of the claimant’s own voluntary act.

Gray v. BellSouth Telecomm, Inc., 11 So.3d 1269, 1272 (Miss. Ct. App. 2009).

Some automatic door cases allege both premises liability and product liability claims. The concepts are distinct and apply different standards. This type of case usually arises in allegations against the door manufacturer or seller when the claimant believes the sensors were negligently manufactured or designed. See, Wolf v. The Stanley Works, 757 So.2d 316 (Miss. Ct. App. 2000).
FALLING MERCHANDISE

An owner has a duty to exercise reasonable care in displaying its products so that they will not fall and injure customers. This includes a duty to display merchandise so that it will not fall as a result of the foreseeable acts of other customers. An owner may be liable for injuries sustained when improperly displayed merchandise falls on a customer, falls into an aisle where a customer stumbles over it or falls toward a customer who is injured while attempting to avoid it.

Like the general premises liability analysis, an owner is not liable for a customer’s injuries in a falling-display case unless the owner either created the condition which caused the accident or had actual or constructive notice of the condition. If merchandise is properly displayed, the storekeeper is not liable when another person knocks over the display and injures a customer. See, 293 Premises Liability 3d § 49:17 (2014 ed.)

Res ipsa loquitur can apply to falling merchandise cases where the merchandise was within the owner’s exclusive control, such as where the merchandise was not readily accessible to customers and there was no evidence that customers moved the merchandise, or the product was heavy and there was no evidence of customer abuse or other unforeseeable or uncontrollable event.

Res ipsa loquitur does not apply in falling merchandise cases where the merchandise could have been disarranged by the customer or third persons, such as where the general public had unfettered access to the display or the article in question had actually been moved, thereby eliminating the owner’s exclusive control. Res ipsa loquitur is also inapplicable where there is direct evidence of the cause of the display fall or where the customer, without relying on res ipsa loquitur, has the available means of establishing the storekeeper’s negligence. See, 293 Premises Liability 3d § 49:17 (2014 ed.)

LIQUOR LIABILITY

Mississippi statutory law provides immunity from liability of those who lawfully sell or supply intoxicating beverages by permit. However, this liability limitation does not extend to the holder of an alcoholic beverage permit, his agent, or employee who sells to a visibly intoxicated person. Miss. Code Ann. § 67-3-73.

Social hosts are also immune from liability for serving or furnishing alcoholic beverages to persons who may lawfully consume such beverages. Further, a social host is not liable for those that consume alcohol on his premises and in his absence. These immunities do not apply if the alcohol consumption is forced by the host or he falsely represents that the beverage contains no alcohol. Miss. Code Ann. § 67-3-73.

An adult is prohibited from permitting a party to take place at their home if they are aware that minors are obtaining or consuming alcohol. Miss. Code Ann. § 97-5-49

CIRCUMSTANTIAL EVIDENCE OF DANGEROUS CONDITION

Plaintiff has a duty to show that a dangerous condition was present. That may be demonstrated with circumstantial evidence from which a jury may draw reasonable inferences of defendant’s negligence.

While inferences of negligence may be drawn from circumstantial evidence, those inferences must be the only ones that reasonably could be drawn from the evidence presented, and if the circumstantial evidence presented lends itself equally to several conflicting inferences, the trier of fact is not permitted to select the inference it prefers, since to do so would be the equivalent of engaging in pure speculation about the facts. …

Walz v. HWCC-Tunica, Inc., 2014-CA-00620-COA (Feb. 2, 2016)¶12. The Walz court affirmed summary judgment for a hotel following a fall over a box spring which was off kilter from the bed frame. The court found that there were several explanations of how the bed was moved from its frame, including by the plaintiff on one of his many returns to the room after checking in.

CRIMINAL CONDUCT

Generally criminal acts “break” the causation chain thus alleviating the premises owner from liability. However, such acts may be deemed reasonably foreseeable if the premises owner had cause to anticipate the acts.

Foreseeability for criminal acts can be established by:

1. Actual or constructive knowledge of the parties’ violent nature, or
2. Actual or constructive knowledge that an atmosphere of violence existing on the
premises.

Evidence of the existence of an atmosphere of violence may include “the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises as well as the frequency of criminal activity on the premises.” Lyle v. Mladninich, 584 So.2d 397, 399 (Miss. 1991).

The other crimes in the area or on the premises, must be similar in nature. In Ellis v. Gresham Service Stations, Inc., plaintiff produced numerous incidents of general criminal activity near the store. However, none involved unprovoked assaults. Most were crimes against the store itself. 55 So.3d 1123 (Miss. Ct. App. 2011).

Moreover, you can compare the similar crimes with the overall customer traffic. The Kroger Co. v. Knox, 2009-CA-01008-SCT (June 28, 2012). As a matter of law, in the context of Kroger’s more than three million customer visits over the course of three years; four incidents of criminal activity are wholly insufficient to establish as atmosphere of violence.

Importantly, even if the premises owner has such knowledge, a claimant must still prove that some security measure would have in fact prevented the incident. See, Davis v. Christian Brotherhood, 957 So.2d 390 (Miss. Ct. App. 2007).

In Christian Brotherhood, Lucius Davis was shot at Christian Brotherhood Apartments. Davis was living with this mother at the time. The complex was in a “high” crime area. Davis’ heirs claimed the apartment’s owners were aware of the high crime rate, and the shooting would not have occurred had it maintained security guards, lights, guarded entry, and other such security measures.

Despite the owner’s knowledge, the court noted that the apartment owner’s had previously hired security guards. And importantly, there was no evidence that any suggested security measure – gated access, security cameras, security guard, or lights – would have prevented the particular shooting from actually occurring.

Not only must the premises owner have knowledge of the criminal conduct, but also must be a cause in fact – some corrective action from a security standpoint would have prevented the incident. See Double Quick v. Lymas, 50 So.3d 292 (Miss. 2010).

ABSENT LANDLORD

Absent a specific clause within a lease, a landlord has no responsibility in keeping a leased premises in a safe condition. Titus v. Williams, 844 So.2d 459 (Miss. 2003). The Mississippi Supreme court recently reaffirmed this point and further explained that having a “right of entry” provision or even a lease tied to a percentage of gross profits are not enough to create such a duty on the landlord. Adams v. Hughes, 2015-IA-00167-SCT (May 19, 2016)(reversing and rendering in favor of landlord in an interlocutory appeal from Hinds County, Mississippi).

MULTIPLE OWNERS

An individual may be an invitee as to one owner, but a trespasser to another owner. The injured party’s status as an invitee, licensee or trespasser should be analyzed separately as to each defendant. Thus, a different standard may apply within the same set of facts. In Corley v. Evans, 835 So.2d 30 (Miss. 2003), Stacy Evans Hamrick and her father, James, owned 1000 acres of land. Stacy owned “20%” of the land, but no specific parcel was delineated. Scott Corley was shot during a crawfish boil hosted and planned by Stacy. James knew the event was occurring but took no part in the planning or hosting.

The opinion makes note that the victim was a licensee as to James Evans because, “James derived no benefit from the crawfish boil and was not involved in its promotion or staging.”

See also Elliott v. First Security Bank, 151 So.3d 1059 (Miss. Ct. App. 2014)(finding that plaintiff was an invitee to City, but a licensee as to the Bank for a fall on city sidewalk in front of the bank).

SWIMMING POOLS

Swimming pool owners have a duty to keep the premises reasonably safe and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view. Handy v. Nejam d/b/a Belleview Place Apartments, 2010-CA-01513-COA (Feb. 28, 2012).

Moreover, the risk of drowning in a pool is open and obvious. Howze v. Garner, 928 So.2d 900, 904 (Miss. Ct. App. 2005). In Howze, the Court noted that the pool owner’s “failure to provide flotation devices, hire certified lifeguards, install a life-line, or [provide] brochures pertaining to pool safety does not constitute a breach of the owners’ duty to warn of hidden perils.”

MALICIOUS PROSECUTION

The required elements of malicious prosecution are:

1) the institution of a proceeding;
2) by, or at the insistence of the defendant;
3) the termination of such proceedings in the plaintiff’s favor;
4) malice in instituting the proceedings;
5) lack of probable cause for the proceedings; and
6) the suffering of injury or damage as a result of the prosecution.

All six elements must be proven by a preponderance of evidence. See, Lee v. MGM Resorts of Mississippi, 2016WL487038 (Feb. 9. 2016).

EXAMPLE:

Carl Williams and Willie Reed were shopping at Winn-Dixie when an employee for Winn-Dixie noticed Reed place meats in her purse. Williams and Reed were confronted by employees and were asked to allow the purse to be searched. However, Williams directed Reed to leave the store and he escorted her from the premises. The employees were able to obtain the license plate number of the vehicle in which they left. An affidavit was signed against Williams and he was subsequently arrested. Williams was later acquitted of the shoplifting charges, and he thereafter filed suit against Winn-Dixie for malicious prosecution. Williams v. Jitney Jungle, 910 So.2d 39 (Miss.Ct.App. 2005). The Court found that Winn-Dixie did not lack probable cause in pursuing the criminal proceedings since an employee witnessed Williams assisting Reed in stealing meat from the store. Additionally, Williams failed to produce any evidence that Winn-Dixie maliciously brought the charges against him. Malice “connotes a prosecution instituted primarily for a purpose other than that of bringing an offender to justice.” Nassar v. Concordia Rod & Gun Club, Inc., 682 So.2d 1035, 1038 (Miss. 1996). The Court affirmed the grant of summary judgment in favor of Winn-Dixie.

In addition, under Mississippi law, dismissal of the proceedings as a result of a voluntary settlement or compromise does not constitute termination in the accused’s favor. Buzz v. Moak, No. 2011-CA-00407-COA (Miss.Ct.App. Sept. 18, 2012) (citing Van v. Grand Casinos of Miss., Inc., 724 So.2d 889, 892 (Miss. 1998)).

USE OF EXPERTS

Generally, the use of an expert to theorize as to the cause or source of hazard, such a spill is insufficient to survive summary judgment. See, Cofield v. Imperial Palace of Mississippi, 147 So.3d 364 (Miss. Ct App. 20014). Cofield lacked any evidence to support the source or length of the time the spill has been on the floor. The expert’s attempt to testify to such was “mere speculation and not based on any evidence in the record.” The Mississippi Supreme Court granted further review of this opinion, but the case was settled before a new opinion was issued. See also, Alqasim v. Capitol City Hotel Investors, 989 So.2d 488 (Miss. Ct. App. 2008).

The Mississippi Court of Appeals has weighed in on the speculative nature to deciding between conflicting inferences:

while inference of negligence may be drawn from circumstantial evidence, those inferences may be the only ones which reasonably could be drawn from the evidence presented, and if the circumstantial evidence presented lends itself equally to several conflicting inference, the trier of fact is not permitted to select the inference it prefers, since to do so would be the equivalent of engaging in pure speculation about the facts.

McCullar v. Boyd Tunica, Inc., 50 So.3d 1009 (Miss. Ct. App. 2010).

 

Mississippi Premises Liability – Part IV

This is Part IV of our 2016 Mississippi Premises Liability publication. We hope this information is helpful. But keep in mind that the application and impact of laws can vary widely based on the specific facts involved. This information it should not be used as a substitute for consultation with legal or other competent advisers.
SLIP AND FALLS

STANDARD

In order for an injured “invitee” to recover in a slip and fall case, he must show some negligent act of the landowner or occupier caused his injury. This may be shown by proof:

-That the landowner or occupier had actual knowledge of a dangerous condition
and failed to warn the injured party;

-That the dangerous condition existed for a sufficient amount of time to impute
constructive knowledge to the landowner or occupier, in that the landowner or
occupier should have know of the dangerous condition.

Anderson v. B.H. Acquisition, Inc., 771 So.2d 914, 918 (Miss. 2000) (citing Downs v. Choo, 656 So.2d 84, 86 (Miss. 1995)).

EXAMPLES:

Proof of the liquid’s presence on the floor for a sufficient amount of time to give reasonable notice to the owner is required in order to establish a negligence claim in a slip and fall case. Douglas v. Great Atlantic & Pacific Tea Co., 405 So.2d 107, 111 (Miss. 1981).

Gas station manager routinely inspected area around pumps approximately once every 30 minutes on evening the alleged slip and fall occurred, and he did not witness a spill or see any kind of slippery substance. Further, no one reported a spill or slippery substance. The gas station did not breach its duty of care owed to a customer who allegedly slipped and fell in a slippery substance around the gas pumps. Almond v. Flying J Gas Co., 957 So.2d 437 (Miss.Ct.App. 2007).

Court held that it was an issue of fact whether the business created an unreasonably dangerous condition by not having non-skid matting in its self-service drink area. Merritt v. Wal-Mart Stores, Inc., 911 F.Supp. 242 (S.D.Miss. 1995).

Man slipped on a banana in the produce section of the grocery store with an employee standing nearby. There was conflicting testimony regarding the appearance of the banana and thus its age. It was a jury question as to whether the store had actual or constructive knowledge that the banana peel was on the floor. Downs v. Choo, 656 So.2d 84 (Miss. 1995).

An on-duty casino employee fell into a patron who was facing a slot machine causing the patron to fall to the floor and sustain injuries. In order to maintain a claim, the injured patron had to show that the employee was conscious when he fell into her. The employee testified that he fainted, and other evidence showed that he did not have a history of fainting and he did not have a medical condition that would have caused him to faint. Court upheld summary judgment in favor of casino. Webb v. Imperial Palace of Mississippi, LLC, 76 So.3d 759 (Miss.Ct.App. 2011).

OPEN AND OBVIOUS

In Tharp v. Bunge, 641 So.2d 20, (Miss. 1994), the Mississippi Supreme Court abolished the open and obvious defense in negligence actions and initiated the comparative negligence concept. However, the Court announced a few black letter conclusions as a result of the open and obvious nature of certain dangerous conditions and the abolishment of the defense:

1) if an invitee is injured by a natural condition on a part of the business that is immediately adjacent to its major entrance and exit, then there is a jury question as to the openness and the obviousness of the danger. Goodwin v. Derryberry Co., 553 So.2d 40 (Miss. 1989).

2) if an invitee is injured by a natural condition on a remote part of the business premises, and the danger was known and appreciated by the injured party, then there is no jury question. Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So.2d 646 (Miss. 1988).

3) if an invitee is injured by an artificial/man-made condition on an adjacent or internal part of the business premises, then there is a jury question as to the openness and obviousness of the danger. Tharp v. Bunge, 641 So.2d 20, (Miss. 1994); Tate v. Southern Jitney Jungle, 650 So.2d 1347 (Miss. 1995); Baptiste v. Jitney Jungle, 651 So.2d 1063 (Miss. 1995); Downs v. Choo, 656 So.2d 84 (Miss. 1995); Fulton v. Robinson, 664 So.2d 170, 175 (Miss. 1995).

“Just how open and obvious a condition may have been is a question for the jury, in all except for the clearest of cases.” Bell v. City of Bay St. Louis, 467 So.2d 657, 664 (Miss. 1985). The Mississippi Supreme Court found that Fulton was one of those clearest of cases, where the injured party fell while walking across a snow covered parking lot, and affirmed a directed verdict for the landowner. 664 So.2d at 176.

OWNER CREATES CONDITION

Perhaps the most difficult type of fall to defend occurs when the evidence demonstrates that the owner or occupier of the premises created the dangerous condition which caused the injury. Where an injured party who slipped and fell on a business’ premises demonstrates that the dangerous condition was created by negligence of the business or its employees, the injured party need not prove notice to the business. Miller v. R.B. Wall Oil Co., Inc., 970 So.2d 127 (Miss. 2007) (citing Drennan v. Kroger, Co., 672 So.2d 1168, 1170 (Miss. 1996)). However, if the dangerous condition was created by someone who is not associated with the business, the injured party must demonstrate that the owner or occupier had actual or constructive knowledge of the dangerous condition as well as sufficient opportunity to correct the condition. Id.

Proof of a business owner’s knowledge of a dangerous condition is unnecessary where the condition is created by his negligence or the negligence of someone under his authority. Elston v. Circus Circus Mississippi, Inc., 908 So.2d 771 (Miss.Ct.App. 2005), cert. denied, 920 So.2d 1008 (Miss. 2005). The Court in Elston reversed the grant of summary judgment for the business where the injured party slipped and fell in a puddle of water in the vicinity where plants were watered by the business’ agents. The Court noted that a jury may conclude that the business was negligent because it created the dangerous condition and/or because it had constructive notice of the puddle. Id. at 776.

A patron at Fred’s Discount Store slipped on a plastic grocery sack on the floor near the checkout stand and suffered injuries. A Fred’s representative testified that the shopping bags are required to be kept in a bag well by the cashier and that only Fred’s employees handled the plastic bags. However, the patron did not know how the plastic bag came to be on the floor, nor did she know how long it had been there. The Court found that a reasonable inference could be drawn that Fred’s caused the shopping bags to be on the floor, and thus, the bag was on the floor due to Fred’s negligence. Fred’s Stores of Tennessee, Inc. v. Pratt, 67 So.3d 820 (Miss.Ct.App. 2011).

UNKNOWN PERSON CREATES THE CONDITION – CONSTRUCTIVE KNOWLEDGE

In contrast to a dangerous condition created by the owner or occupier of a premises, the most difficult way for an injured party to prove negligence on the part of an owner or occupier is when he must establish liability by showing constructive knowledge of the dangerous condition.

Constructive knowledge is established when the dangerous condition is shown to have existed for such a length of time that, in the exercise of reasonable care, the business operator should have known of the condition. Almond v. Flying J Gas Co., 957 So.2d 437 (Miss.Ct.App. 2007). Courts will not indulge presumptions of an injured party’s deficient evidence as to the length of time the hazard existed, but instead, an injured party must present admissible evidence as to the relevant actual length of time in order to establish the owner’s or occupier’s constructive knowledge. Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 286 (1986); see also Dickens v. Wal-Mart Stores, 841 F.Supp. 768, 771 (S.D.Miss. 1994).

A gas station’s manager inspected the area around gas pumps approximately once every thirty minutes on the evening that injured party alleged she slipped and fell on slippery liquid substance near pumps. The manager did not witness a spill or see any kind of slippery substance on the ground around the pumps, and no one reported a spill or a slippery substance during the manager’s shift. The Court noted that the injured party did not offer any admissible evidence as to the length of time the alleged slippery substance was present. The Court found that the gas station did not breach its duty of care to the injured party. Almond, 957 So.2d at 440.

Injured party did not present any evidence as to how long a soft-drink can, which she alleged to have tripped on and fallen, was in the parking lot of the laundromat. Thus, the owner did not have constructive knowledge of the dangerous condition and was not liable for injuries. Ballard v. Watkins, 938 So.2d 298 (Miss.Ct.App. 2006).

In Evans v. Aydha, 2015-CA-00028-COA, (April 19, 2016), the Mississippi Court of Appeals overturned a summary judgment ruling in favor of the premises owner. In plaintiff’s deposition she was unable to identify exactly how the “black spot” got on the ground or how long it had been there. In response to the summary judgment motion, Plaintiff offered an affidavit of her daughter. The daughter returned to the scene after the accident. There she saw a black spot that was “mostly black, dirty, and it was obvious to me that the oily residue had been on the pavement for an extended period of time, at least several dates . . . [the spot] looked slippery.” ¶11. This, the Court found, was enough to create a jury question and thus defeat summary judgment.

Mississippi Premises Liability – Part III

This is Part III of our 2016 Mississippi Premises Liability publication. We hope this information is helpful. But keep in mind that the application and impact of laws can vary widely based on the specific facts involved. This information it should not be used as a substitute for consultation with legal or other competent advisers.
WAS THE CAUSE OF THE ACCIDENT FORESEEABLE?

ACTS BY THIRD PARTIES

An apartment complex was renovating a unit and it deposited debris and tile in a nearby wooded area. A group of children subsequently entered the area and began throwing the tile. Undoubtedly, one young boy’s eye was “put out” by a flying piece of tile. The question was raised whether the apartment complex breached a duty not to create a dangerous condition. However, the Court found that the action of plaintiff’s companion was an intervening cause between the apartment complex’s placement of debris and Plaintiff’s injury. It further noted, however, that under the principles of foreseeability a defendant may be held liable for his failure to anticipate an easily-predicted intervening cause and to properly guard against it. But, a defendant may be shielded from liability if the intervening force was a superseding cause. The Court declined to impose a duty upon the complex to reasonably foresee that the discarded scrap tile pieces would be propelled by children at a high rate of speed at the plaintiff. Southland Management Co. v. Brown, 730 So.2d 43 (Miss. 1999).

ASSAULT/CRIMINAL ACTS

A business owner has a duty to protect an invitee from acts of third parties where such acts are reasonably foreseeable. Newell v. Jitney Jungle Co., 830 So.2d 621, 623 (Miss. 2002).

Foreseeability of criminal acts can be proved in two ways:

1) that the owner or occupier had actual or constructive knowledge of the assailant’s violent nature, or
2) actual or constructive knowledge that an atmosphere of violence existed on the premises. Gatewood v. Sampson, 812 So.2d 212, 220 (Miss. 2002). See Criminal Conduct section below.

CHILDREN AS TRESPASSERS – ATTRACTIVE NUISANCE DOCTRINE

The Attractive Nuisance Doctrine applies to situations involving child trespassers who may be especially attracted to the items on the premises. Traditionally, the theory of attractive nuisance is that a landowner or occupier is subject to liability for injuries to children trespassing on the landowner or occupier’s premises. Keith v. Peterson, 922 So.2d 4 (Miss.Ct.App. 2005), cert. denied, 926 So.2d 922 (Miss. 2006). However, effective in July of 2016, pursuant to House Bill 767, the duties owned to a trespasser have been codified. This new law maintains the common law duty to avoid willful and wanton injury to adults. However, it establishes several situations with respect to children:


(2) A possessor of real property owes no duty of care to a trespasser, except a duty to refrain from willfully or wantonly injuring such a person.
(3) Notwithstanding subsection (2) of this section, a possessor of real property may be subject to liability for injury to a trespasser if:
(a) The possessor discovers the trespasser in a position of peril on the property and fails to exercise reasonable care to prevent injury to that trespasser; or
(b) The trespasser is a child injured by an artificial condition on the possessor’s property and all of the following apply:
(i) The place where the condition existed was one upon which the possessor knew or had reason to know that a child would be likely to trespass;
(ii) The condition is one of which the possessor knew or had reason to know and which the possessor realized or should have realized would involve an unreasonable risk of death or serious bodily harm to a child;
(iii) The injured child because of his or her youth did not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it;
(iv) The utility to the possessor of maintaining the condition and the burden of eliminating the danger was slight as compared with the risk to the child; and
(v) The possessor failed to exercise reasonable care to eliminate the danger or otherwise to protect the child.

Codified at Miss. Code Ann. § 95-5-31. The new law, maintains the common law defenses and immunities with respect to trespassers:

(4) This section does not create or increase the liability of any possessor of real property and does not affect any immunities from or defenses to civil liability established by another section of the Mississippi Code of 1972 or available at common law to which a possessor of real property may be entitled.

It is unclear exactly what effect this law will have on traditional Mississippi common law in this arena. But it appears to be an attempt to broaden or at least clarify the duties owed to children, even if deemed trespassers.
Traditionally, however, the attractive nuisance doctrine balances two competing interests: first, it considers the interest in protecting children and recognizes that most children will trespass on occasion and are sometimes injured, and second, it weighs the landowner’s interest in not being unreasonably burdened to ensure his property is safe to trespassing children. Harkins v. City of Carthage, 284 So.2d 530 (Miss. 1973).

The traditional doctrine is stated as:

“One who maintains dangerous instrumentalities or appliances on his premises easily accessible to children and of a character likely to attract them in play, or permits dangerous conditions to remain thereon with the knowledge that children are in the habit of resorting thereto for amusement and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child . . . who is injured thereby, and who did not know and appreciate the danger incurred by him in playing with the instrumentality or in the vicinity of the dangerous condition, or was too young to be charged with such knowledge.”

Hughes v. Star Homes, Inc., 379 So.2d 301, 304-05 (Miss. 1980) (quoting Lucas v. Hammond, 150 Miss. 369, 381, 116 So. 536, 537 (Miss. 1928).

The plaintiff must prove four elements when a child enters another’s property and is injured by a dangerous condition:

1) that the owner knew or should have known of the dangerous artificial condition,
2) that the owner knew or should have known that children frequent the area
where the dangerous condition exists,
3) that it is unlikely that the child trespasser could appreciate the risk presented, and
4) that the cost to correct the dangerous condition is minimal compared to the
magnitude of the risk.

Again, traditionally, an attractive nuisance must involve an inherently dangerous instrumentality maintained on the premises which is easily accessible to children. Hughes, 379 So.2d 304-05. The Mississippi Supreme Court has held that a railroad turntable, unexploded anti-aircraft shells, dynamite or dynamite caps, or other explosives were inherently dangerous instrumentalities. Keith v. Peterson, 922 So.2d 4, 11 (Miss.Ct.App. 2005) (citing Shemper v. Cleveland, 212 Miss. 213, 54 So.2d 215 (1951); Hercules Powder Co. v. Wolf, 145 Miss. 388, 110 So. 842 (1927); McTighe, Hughey & McTighe v. Johnson, 114 Miss. 862, 75 So. 600 (1917)).

Mississippi Premises Liability – Part II

This is Part II of our 2016 Mississippi Premises Liability publication. We hope this information is helpful. But keep in mind that the application and impact of laws can vary widely based on the specific facts involved. This information it should not be used as a substitute for consultation with legal or other competent advisers.

 

WHAT IS THE STANDARD OF CARE ONCE STATUS IS DETERMINED?

TRESPASSER – STANDARD OF CARE

The duty owed to trespassers is merely to refrain from willfully or wantonly injuring them. Little v. Bell, 719 So.2d 757 (Miss. 1998) (citing Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097 (Miss. 1986)). An owner or occupier has no duty to protect a trespasser from conditions on the premises.

Traditionally, a homeowner may not be held liable for injuries which result from passive negligence, which is defined as “the failure to do something that should have been done.” Titus v. Williams, 844 So.2d 459 (Miss. 2003).

However, Governor Bryant signed into House Bill 767 in 2016 which codifies the duties owed to a trespasser. It maintains the common law duty to avoid willful and wanton injury, but also establishes several situations with respect to children or an adult who is in a “position of peril”:


(2) A possessor of real property owes no duty of care to a trespasser, except a duty to refrain from willfully or wantonly injuring such a person.
(3) Notwithstanding subsection (2) of this section, a possessor of real property may be subject to liability for injury to a trespasser if:
(a) The possessor discovers the trespasser in a position of peril on the property and fails to exercise reasonable care to prevent injury to that trespasser; or
(b) The trespasser is a child injured by an artificial condition on the possessor’s property and all of the following apply:
(i) The place where the condition existed was one upon which the possessor knew or had reason to know that a child would be likely to trespass;
(ii) The condition is one of which the possessor knew or had reason to know and which the possessor realized or should have realized would involve an unreasonable risk of death or serious bodily harm to a child;
(iii) The injured child because of his or her youth did not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it;
(iv) The utility to the possessor of maintaining the condition and the burden of eliminating the danger was slight as compared with the risk to the child; and
(v) The possessor failed to exercise reasonable care to eliminate the danger or otherwise to protect the child.

Codified at Miss. Code Ann. § 95-5-31.

The law also contains a final paragraph which appears to maintain the common law defenses and immunities. It is unclear exactly how this statute will be applied and what, if any effect it will have on the ultimate outcome of a case other than perhaps broadening the “attractive nuisance” doctrine and extending a duty to a trespasser in peril. Nevertheless, subsection (4) specifically reserves the common law immunities and defenses:

(4) This section does not create or increase the liability of any possessor of real property and does not affect any immunities from or defenses to civil liability established by another section of the Mississippi Code of 1972 or available at common law to which a possessor of real property may be entitled.

EXAMPLES

Injured party, Bracknell, failed to present any evidence that the private property owner’s association wantonly or willfully injured him. Bracknell was the guest of a resident, however, his guest pass expired. The association did not enforce its rules and regulations to remove guests whose guest pass had expired and it did not enforce its restriction prohibiting guest boats on the private lake. Subsequently, another guest of one of the property owners whose pass had also expired was driving his personal boat, which was prohibited, and crashed into Bracknell causing injury. The Court found that the owner’s association’s lack of attention did not differ from ordinary negligence and did not rise to wanton or willful. Green v. Dalewood, 919 So.2d 1000 (Miss.Ct.App. 2005).

A septic tank had just been installed on a lot when a young child who lived adjacent to the lot climbed into the tank. As the child climbed from tank the a 100-pound concrete cover fell on his head, killing him. The boy was found to be a trespasser and the development company was found not to have violated the standard of care owed to him, since it did not wantonly or willfully injure him. Hughes v. Star Homes, Inc., 379 So.2d 301 (Miss. 1980). The Court then turned to the attractive nuisance doctrine and held that the defendants were entitled to a peremptory instruction because there was nothing inherently dangerous about the septic tank and thus the attractive nuisance doctrine did not apply. Id. at 305.

LICENSEE – STANDARD OF CARE

As with a trespasser, a landowner or occupier owes a licensee a duty to refrain from willfully or wantonly injuring him. Adams, 497 So.2d at 1100.

EXAMPLES

In Doe v. Jameson Inn, Inc., a minor female who was the guest of a guest of a registered guest entered the hotel for the express purpose of the illegal activity of smoking marijuana. 56 So.3d 549 (Miss. 2011). She was subsequently raped in the hotel room. In finding that the minor child was not an invitee, the Court noted that the element of mutual benefit was lacking because the hotel received no benefit by virtue of the minor child’s presence on the premises. Id. at 555.

In Turnipseed v. McGee, the Court held that it is the landlord’s duty to exercise reasonable care to keep safe the areas of the premises over which he retains control. 236 Miss. 159, 109 So.2d 551, 554 (Miss. 1959).

In relying on the holding in Turnipseed, the Court in Lucas v. Miss Housing Authority No. 8 held that an invited guest of an apartment tenant was an invitee to the apartment complex when he was on the premises to use the swimming pool in the common area. 441 So.2d 101 (Miss. 1983). The Court stated that “[i]t would be unconscionable to establish a principle of law that [the apartment complex] owed to the six-year-old child of a tenant the duty to use reasonable care not to injure him and, yet, owed to his six-year-old invited guest, swimming in the same pool, only the duty not to willfully or wantonly injure him.” Id. at 103. See also Doe v. Mississippi State Fed’n of Colored Women’s Club Housing for the Elderly in Clinton, Inc. 941 So.2d 820 (Miss.Ct.App. 2006). Again, in relying on the language expressed in Turnipseed and restated in Lucas, a minor was held to be an invitee by virtue of her occasional weekend visits with her father, who was a tenant of the subject apartment complex.

However, compare the above cases with Price v. Park Management, Inc., where the tenant of an apartment complex and his guest were attacked in the tenant’s apartment. 831 So.2d 550 (Miss.Ct.App. 2002). The Court held that the duty owed to the tenant was to keep the premises in a reasonably safe condition, but the duty owed to the guest of the tenant was that of a trespasser, to refrain from wantonly or willfully injuring him. Id. at 551. The Court noted that it is “well settled that social guests of the tenant are owed no special duty by the landlord, but merely the duty owed by the landlord to trespassers that the landlord not wantonly or willfully injure the guest.” Id. (citing Lucas v. Buddy Jones Ford Lincoln Mercury, 518 So.2d 646, 647 (Miss. 1988)).

HOFFMAN EXCEPTION – DUTY TO A LICENSEE WHEN INCREASED HAZARD PRESENT

The Hoffman exception applies the standard of ordinary and reasonable care to licensees when the owner operates an activity which causes an unusual danger or increases the hazards to known licensees. Hoffman v. Planters Gin Co., Inc., 358 So.2d 1008 (Miss. 1978). In Hoffman, the Court changed the standard of care owed to a licensee, but it limited the new standard of care to cases involving injury resulting from active conduct as opposed to conditions of the premises, or passive negligence. In Hoffman, it was held that the owner or occupier is liable for injury proximately caused by the owner or occupier’s “affirmative or active negligence in the operating or control of activities which subjects a licensee to unusual danger or increases the hazard to the licensee when the presence of the licensee is known.” Little by Little v. Bell, 719 So.2d 757, 761 (Miss. 1998). However, the Hoffman exception only applies to cases involving the operation or control of a business. Hughes v. Star Homes, Inc., 379 So.2d 301 (Miss. 1980). “In order to fall within the Hoffman exception, the landowner must be aware of the licensee’s presence upon the premises, the landowner must engage in affirmative or active negligence in the operation or control of a business, the landowners’ conduct in regards thereto must subject the licensee or invitee to unusual danger, or increase the hazard to him, and the landowner’s active or affirmative negligence must have proximately caused the plaintiff’s injury.” Little by Little, 719 So.2d at 762.

The Mississippi Supreme Court, in Little by Little, declined to extend the Hoffman exception to situations where there is no operation or control of a business. Id. Andrea was a guest at the Bells’ home and was allowed to play on their trampoline. While either mounting or dismounting the trampoline, Andrea stepped on a milk crate below the trampoline, fell and suffered an injury. The Court found her to be a licensee since there was no mutual benefit, that is, there was no benefit flowing to the landowners by Andrea’s presence on the premises. The Court noted there was no evidence that the Bells knowingly or intentionally placed the milk crate in such a manner as to constitute a hazard. Further, the Court expressly declined to abolish the traditional classifications of injured parties and it rejected the plaintiffs’ invitation to extend the Hoffman exception outside of businesses. Id.
TRAPS AND HIDDEN OBJECTS

A premises owner or occupier may be liable when he sets traps or exposes licensees to hidden perils. Marlon Inv. Co. v. Conner, 246 Miss. 343, 149 So.2d 312 (1963). In Marlon Inv. Co., the jury found that the landowner had placed the injured party in a trap when she fell in an unlit abandoned stairwell that was not marked or sealed off and that the landowner knew of the danger and could reasonably foresee an injury to someone else. The owner had a lighted sign with an arrow that pointed downward towards the stairwell indicating his business. The Court affirmed the jury verdict for the injured party and held that the premises owner must disclose to the licensee any concealed, dangerous condition on the premises for which the owner had knowledge in order that the licensee could exercise reasonable care. Id.

It was a fact question for the jury to determine whether a homeowner had a duty to warn a roofing contractor of a rotten spot in the roof which was concealed by pine needles. Hearn v. Brown, 876 So.2d 380 (Miss.Ct.App. 2003) (overruled on other grounds by White v. Stewman, 932 So.2d 27 (Miss. 2006)). See, Liability of Independent Contractors.

A landowner did not owe her eight-year-old great grandson, a licensee, a duty to specifically warn him of potential danger posed by a debris pile, as the debris pile in her yard was not a trap or hidden peril. Vaughn ex rel. Vaughn v. Estate of Worrell, 828 So.2d 780 (Miss. 2002). The Court noted that the child frequently rode his bicycle in the landowner’s yard, that he was aware of the debris pile and was able to describe it. Id.

INVITEE – STANDARD OF CARE

An invitee is owed the highest duty of care. A landowner or occupier must provide property that is reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not plain and open view. A premises owner is not absolved from his duty to use reasonable care in keeping his premises in a reasonably safe condition just because he warns of a dangerous condition. See Mayfield v. Hairbender, 903 So.2d 733 (Miss. 2005). In Mayfield, the Court noted there is a two-part test requiring separate inquiries: (1) whether the owner kept the premises reasonably safe, and (2) whether the owner warned of hidden dangers of which the owner knew or, in the exercise of reasonable care, should have known. Id. at 738. Breaching either duty supports a claim of negligence. Id.

EXAMPLES

Injured party, an invitee, fell in Home Depot. However, she did not know what caused her to fall. She could only speculate that a pallet or wood piece may have caused her to slip and/or trip, and such speculation contradicted her deposition testimony that she did not know what caused her fall. The Court found that no proof was presented that the injury was the result of negligence by Home Depot and that Home Depot had no knowledge of a dangerous condition. Rod v. Home Depot USA, Inc., 931 So.2d 692 (Miss.Ct.App. 2006).

The Court held it was a question of fact for a jury whether or not Holiday Inn knew or should have known of a loose mirror in its bathroom that subsequently fell and injured the Pigg’s minor son, who was a hotel guest and thus an invitee, when he closed the bathroom door on which the mirror hung. Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197 (Miss. 2008).

A hotel guest slipped on a rubber shower mat when exiting the shower. He claimed the mat twisted or slipped causing him to fall. The Court found there was no evidence of a dangerous condition or that the defendant had any knowledge of a dangerous condition. Stanley v. Boyd Tunica, Inc., 29 So.3d 95 (Miss.Ct.App. 2010). A “property owner cannot be found liable for the plaintiff’s injury where no dangerous condition exists.” Id. at 97-98 (citing Delmont v. Harrison County Sch. Dist., 944 So.2d 131, 133 (Miss.Ct.App. 2006)).

Skating rink did not breach a duty owed to its patron that allegedly tripped and fell over a toy while skating. She claimed the toy was thrown onto the floor from the adjacent arcade. However, no evidence was presented that the skating rink or its employees threw the toy or had any knowledge of the toy being on the skating rink floor. Sullivan v. Skate Zone, Inc., 946 So.2d 828, 832 (Miss.Ct.App. 2007). The Court rejected the argument for “mode of operation” theory of premises liability, which holds that “when an owner of a self-service establishment has actual notice that his mode of operation creates certain risks of harm to customers, and those risks are foreseeable, it is not necessary for the plaintiff to prove notice of the hazard that caused the injury.” Id. (quoting Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 466-67 (Miss.Ct.App. 2003)).

 

Mississippi Premises Liability – Part I

Over the next few post we’ll be sharing portions of our 2016 Mississippi Premises Liability publication. We hope this information is helpful,  But keep in mind that the application and impact of laws can vary widely based on the specific facts involved an this information it should not be used as a substitute for consultation with legal or other competent advisers. Before making any decision or taking any action, you should consult with an attorney at Holcomb Dunbar

Mississippi Premises Liability – Part I

Premises liability is a theory of negligence which establishes the duty owed to someone injured on a landowner’s or occupier’s premises as a result of conditions or activities on the premises. In Mississippi, premises liability is distinguished by the classification of the complaining party between invitee, licensee and trespasser. Though the Mississippi Supreme Court has repeatedly been asked to abolish these distinctions the Court has declined to do so and continues to follow the practice of classifying a person who enters the land of another as an invitee, a licensee, or a trespasser. See Titus v. Williams, 844 So.2d 459 (Miss. 2003); see also Pinnell v. Bates, 838 So.2d 198 (Miss. 2002). In Pinnell, the Court stated “[t]here is no compelling reason to change our time-honored law on premises liability now. The distinctions between licensee and invitee have been developed over many years and have been grounded in reality.” Id. at 199.

ANALYZING A PREMISES LIABILITY CLAIM

Premises cases are analyzed under the general negligence standard. Did the premises owner breach a duty owed to the claimant which caused injury or damages — duty, breach, proximate cause and damages. However, to determine the particular duty and breach in a premises liability case, there is a three-step process.

See, Leffler v. Sharp, 891 So. 2d 152 (Miss. 2004).

WAS THE CLAIMANT AN INVITEE, LICENSEE, OR TRESPASSER

Mississippi maintains the distinction between invitee, licensee, and trespasser. When determining the status of an injured party, the facts must be examined and in particular the relationship between the injured person and landowner or occupier. The determination of whether an injured party is an invitee, licensee or trespasser can be a fact question for the jury, but if the facts are not in dispute then it becomes a question of law which may allow early resolution by summary judgment. Id. at 156.

TRESPASSER

A trespasser is “one who enters upon another’s premises without license, invitation or other right.” Hughes v. Star Homes, Inc., 379 So. 2d 301, 303 (Miss. 1980) (citing Kelley v. Sportsmen’s Speedway, Inc., 224 Miss. 632, 80 So. 2d 785 (1955). The Mississippi Supreme Court added that a trespasser enters another’s property “merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement or express or implied assurance of safety from the owner or person in charge.” Titus v. Williams, 844 So.2d 459 (Miss. 2003) (citing White v. Miss. Power & Light Co., 196 So.2d 343, 349 (Miss. 1967)).

Mississippi codified the definition and duty owed to a trespasser in the 2016 legislative session. See, Miss. Code Ann. § 95-5-31. The new law defines trespasser as “a person who enters upon the property of another without permission and without an invitation, express or implied, or other legal right.”

EXAMPLES

A man left the lounge area of the Quarter Inn, a restaurant and lounge in Vicksburg, Mississippi, and climbed through an open window leading to an adjacent rooftop terrace. It was a small window, three feet off the ground and 24 inches by 32 inches. Further, a locked glass door with “NOT AN EXIT” stenciled on the glass was only four feet away from the window. The man fell through the rooftop approximately twenty feet to the ground. The Court noted that he was an invitee at the time he entered the Quarter Inn, however, he became a trespasser when he climbed onto the rooftop terrace. Leffler v. Sharp, 891 So.2d 152 (Miss. 2004).

The local Parent Teacher Association was holding a Winter Carnival at East Tate Elementary School in Tate County. Anthony Gammel planned on attending the Winter Carnival and parked across the street from the school in the school’s bus parking lot. Anthony was struck by a motorist and killed as he attempted to walk across the roadway to the school. The Court noted the bus parking lot was limited to bus parking only and the lot was not used as parking for the general public. The Court held that Anthony was a trespasser on the school’s property when he chose to park in the bus parking lot. Additionally, the Court noted that Anthony lost his status as a trespasser the moment he stepped off the bus parking lot onto the public roadway, and thus was unable to establish any duty owed at the time of the accident by the school. Gammel v. Tate County School District, 995 So.2d 853 (Miss.Ct.App. 2008).

LICENSEE

“A licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner…” Little v. Bell, 719 So. 2d 757, 760 (Miss. 1998) (quoting Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978)).

A “social guest” is classified as a licensee, or someone who enters a landowner’s or occupier’s premises for his own benefit, pleasure or convenience and with the implied permission of the owner or occupier. Grammar v. Dollar, 911 So.2d 619 (Miss.Ct.App. 2005).

EXAMPLES

Nunez was visiting her family and riding an ATV when she crashed into a barbed-wire fence and thrown from the ATV. She alleged that the ATV’s steering and brakes failed and that Spino was aware of the problems but failed to warn her. In finding that Nunez was a licensee, the Court noted that she was on Spino’s property riding his ATV for her own pleasure and benefit and she was clearly a social guest. The Court further noted that although Nunez on occasion does some work for Spino, she was merely visiting her family and was not performing any work on that particular day. Nuñez v. Spino, 14 So.3d 82 (Miss.Ct.App. 2009).

Plaintiff fell on a walkway and was injured while viewing a neighborhood outdoor Christmas display at the Millers’ residence. Every year the Millers decorated their property with lighting displays and other items symbolic of Christmas and allowed visitors to walk about the property and view the displays. The Millers did not charge admission or receive any form of monetary compensation from visitors to the property. In finding Daulton to be a licensee, the Court noted that the landowner did not receive any tangible form of consideration or obtain any business advantage from the visitors. Daulton v. Miller, 815 So.2d 1237 (Miss.Ct.App. 2001).

INVITEE

An invitee is a person who goes onto the premises of another at the express or implied invitation of the owner or occupant for their mutual advantage. Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978); Langford v. Mercurio, 254 Miss. 788, 183 So. 2d 150 (1966); Wright v. Caffey, 239 Miss. 470, 123 So. 2d 841 (1960). Mutual advantage is needed to create invitee status.

EXAMPLES

A hired housekeeper has been found to be an invitee in determining the homeowner’s duty of care owed toward the housekeeper. Vaughn v. Ambrosino, 881 So.2d 847 (Miss.Ct.App. 2003).

Church members who do not exceed the scope of the church’s invitation are invitees while attending church for church services or other related functions. Clark v. Moore Memorial United Methodist Church, 538 So.2d 760 (Miss. 1989).

A customer who went to a laundromat as a patron and allegedly tripped and fell on a soft drink can in the parking lot would be considered a business invitee for purposes of premises liability. Ballard v. Watkins, 938 So.2d 298 (Miss.Ct.App. 2006).

A drive-thru restaurant patron that never placed an order because the drive-thru line was too long but instead decided to exit the drive-thru line and proceed to leave the restaurant’s premises was found to be an invitee. Magnusen v. Pine Belt Inv. Corp., 963 So.2d 1279 (Miss.Ct.App. 2007).

A teenager who was visiting his uncle at his uncle’s apartment complex and drowned while swimming in complex’s swimming pool was held to be an invitee. Handy v. Nejam, No. 2010-CA-01513-COA (Miss.Ct.App. Feb. 28, 2012). The Court noted that the teenager entered the premises as his uncle’s guest and was presumed to be an invitee under the law.

CHANGE IN STATUS

A person’s status can change depending on the circumstances. If an injured party goes beyond the bounds of their invitation, they may lose the invitee status and rights which accompany such. Dry v. Ford, 238 Miss. 98, 117 So.2d 456 (Miss. 1960).

EXAMPLES

An injured party who asked a garage owner to fix his truck was an invitee; however, when the injured party was allowed by the garage owner to use the facilities to fix his own truck he became a licensee. Id. at 458.

A customer enjoyed an invitation to visit a plant nursery during its operating hours and could thus be considered an invitee. However, one evening he went to the nursery while it was closed and was injured by a heating unit. The Court found that at that particular time he was at best a licensee and at worst a trespasser. Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 38 (Miss. 1989).

A daily newspaper delivery person was assumed by the Court to be an invitee when he entered an office building to deliver and leave the morning newspaper for tenants in that building. One early morning, the newspaper deliverer entered the building, the lights were off and he decided to open a closed elevator door and place the newspapers on the elevator floor. He opened the closed door and attempted to place the newspapers in the elevator, however, he fell in the elevator shaft and injured himself as the elevator was not on that floor. The Court held that he went beyond his limits of invitation by opening a closed or fastened door and was thus a licensee at the time of his injury. Selby v. McWilliams Realty Corp., 246 Miss. 568, 151 So.2d 596 (Miss. 1963).

Receptionist Position Open at Holcomb Dunbar

Holcomb Dunbar Attorneys

Receptionist Position Open at Holcomb Dunbar

Holcomb Dunbar is seeking a receptionist. Knowledge of law firm processes and procedures a plus. A Holcomb Dunbar receptionist is expected to be professional, proactive team player who welcomes the opportunity to provide exceptional service to our clients. Full benefits offered.

Please Email Resume

Marjorie Matlock featured on Mississippi Public Broadcasting

Marjorie T. MatlockHolcomb Dunbar Attorney Marjorie Matlock was featured on MPB’s radio show “In Legal Terms” today.  She discussed her extensive workers’ compensation defense experience helping insurance carriers and self insured companies

Listen to the entire broadcast here.

About Holcomb Dunbar:

Holcomb Dunbar is a full service law firm offering services in litigation, insurance defense, product liability, medical malpractice, divorce, complex bankruptcies, white collar crime, and workers’ compensation. 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, criminal defense, complex litigation, real estate transactions, contract, mass-tort defense, mediation, debtor-creditor matters, and divorce.

For more information, visit www.holcombdunbar.com.

Holcomb Dunbar Attorney Tom Suszek to Speak on Real Estate

Tom SuszekHolcomb Dunbar attorney Tom Suszek to present two papers addressing “Real Problems in Real Estate” and “Ethical Concerns in Real Estate” on May 13th in Ridgeland, Mississippi.  This “Tool Box” series is sponsored by the University of Mississippi’s Center for Continuing Legal Education.

Real Problems In Real Estate: When To Proceed With Caution focuses on the many exceptions to the “normal” property situations. Suszek’s Ethical Concerns In Real Estate Transactions addresses those difficult and sometimes awkward issues often faced by attorneys, realtors, bankers and other real estate professionals.

Tom has been a member of Holcomb Dunbar Attorneys since his graduation from the University of Mississippi Law Center in 1982. Tom’s primary areas of practice are commercial law, real estate, wills and estates and litigation. He was recently selected as one of the top Mississippi Leaders in Law.

About Holcomb Dunbar:

Holcomb Dunbar is a full service law firm offering services in litigation, insurance defense, product liability, medical malpractice, divorce, complex bankruptcies, white collar crime, and workers’ compensation. 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, criminal defense, complex litigation, real estate transactions, contract, mass-tort defense, mediation, debtor-creditor matters, and divorce.

For more information, visit www.holcombdunbar.com.

Calderaro Admitted to Alabama Bar

Holcomb Dunbar Attorney Calderaro Admitted to Alabama Bar

Geoffrey F. CalderaroGeoffrey Calderaro successfully passed the Alabama Bar examination and is now admitted to practice in the Alabama State Courts.  Mr. Calderaro is admitted to practice in both Mississippi and Alabama.

Geoffrey’s primary areas of practice are in civil litigation, insurance defense and criminal defense. He is admitted to practice in all Alabama and Mississippi Courts, the U.S. District Court for the Northern and Southern Districts of Mississippi, and the U.S. Court of Appeals for the Fifth Circuit.

Geoffrey was born in Livingston, New Jersey in June of 1988 and he grew up in Forsyth County, Georgia located in the Atlanta Metro area. He received the Georgia HOPE Scholarship to attend the University of Georgia where he earned a B.B.A. in Management summa cum laude in 2011.

In 2014 Geoffrey earned his J.D. from The University of Mississippi School of Law summa cum laude. He earned outstanding Student Awards for Property Law, Criminal Law, Legal Profession, and Employment Discrimination. While in law school, Geoffrey authored Promoting Democracy While Preserving Federalism: The Electoral College, The National Popular Vote, and the Federal District Popular Vote Allocation Alternative, 82 Miss. L.J. Supra 287 (2013) for the Mississippi Law Journal.

Geoffrey enjoys spending time with family and friends, and is an avid Boston Red Sox and Georgia Bulldogs fan.

Mississippi Business Journal Interview

Jonathan MastersHolcomb Dunbar Attorney Interviewed By Mississippi Business Journal

Jonathan Masters of Holcomb Dunbar was recently interviewed by the Mississippi Business Journal.  The article features mid-sized law firms discussing client services and marketing strategies.

Read the full article here.

 

Client Success At Holcomb Dunbar

Stacey Golmon

Stacey Golmon

Brad Golmon

Brad Golmon

Holcomb Dunbar attorneys Brad and Stacey Golmon successfully resolved a dispute between a mother and her adult daughter.

The mother previously granted the daughter a power of attorney.  The mother suffered from dementia that had been progressing for several years. With that power of attorney the daughter arranged for her mother to sign away to her several hundred thousand dollars of real property. The daughter also made herself the beneficiary of her mother’s investments. She obtained several credit cards in her mother’s name and used those cards for her own purposes. Finally, she used her mother’s bank account to arrange for thousands of dollars of “gifts” to herself.

We attempted to resolve the matter without litigation, but when that failed we filed suit for the mother. The daughter denied her liability but after lengthy documentary production and proof she agreed to repay her mother the thousands of dollar she had taken in “gifts” and she agreed to be responsible for the credit cards that she had taken out. She returned the real property and removed her name for the investments when the court ordered her to do that.

All that then remained was the mothers claim for attorney fees. After a hearing into the merits of the claim for attorney fees, the court agreed with the mother that the daughter should reimburse her mother for the fees and expenses related to bringing the lawsuit.

This case involved principles of elder care, powers of attorney and the Vulnerable Adults Act. Anytime anyone acts under the terms of a power of attorney, or a guardianship, or a conservatorship, that person must remember that the funds of the other person do not belong to them. Just because they can spend it does not mean it is theirs. Those funds must be spent for the benefit of the person who granted the power of attorney or the ward of the conservatorship or guardianship. Doing otherwise can create civil, and criminal, liability.

For more on the duties and responsibility of guardians and conservators, visit here.

Construction Underway for New Office

New Holcomb Dunbar Home

HD New Bulding

Holcomb Dunbar is pleased to announce that construction will soon be underway of its new building. The new office will be located at ‘The Park at Oxford Commons’ off Sisk Avenue.

Holcomb Dunbar is excited to join The Park and looks forward to building its new office and continuing to grow with Oxford and Lafayette County.

 

Marjorie Matlock Joins Holcomb Dunbar

Marjorie T. MatlockHolcomb Dunbar – Attorneys is pleased to announce the addition of Marjorie T. Matlock. Ms. Matlock will join the firm as a partner and lead its Workers’ Compensation Defense Group. Matlock will concentrate her practice on providing workers compensation defense to businesses and insurers throughout Mississippi, as well as general insurance defense, and mediation and alternative dispute resolution services.

Matlock brings 31-years of legal knowledge and a wealth of experience in assisting self-insured companies and insurers navigate workers’ compensation matters.

Marjorie received her Juris Doctor from University of Mississippi School of Law in 1985 and a Bachelor of Arts in 1982 from the University of Mississippi. Marjorie has also served as Adjunct Professor of Trial Practice for the University of Mississippi School of Law.

Marjorie is admitted to practice in the United States District Court, Northern and Southern Districts of Mississippi, and the U.S. Court of Appeals for the Fifth Circuit. Marjorie has served as President of the Mississippi Bar Association’s Workers’ Compensation Section, a member of the Mississippi Board of Bar Admissions, and is a Fellow of the Mississippi Bar Foundation.

About Holcomb Dunbar:

Holcomb Dunbar is a full service law firm offering services in litigation, insurance defense, product liability, medical malpractice, divorce, complex bankruptcies, white collar crime, and workers’ compensation. 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, criminal defense, complex litigation, real estate transactions, contract, mass-tort defense, mediation, debtor-creditor matters, and divorce.

Russ McNees Elected Director of Young Lawyers Division

Russ McNees

Russ McNees

Russ McNees of Holcomb Dunbar Attorneys was recently elected as a Director of the The Mississippi Bar Young Lawyers Division.  Russ will serve as Director for a one-year term  for the North West District of Mississippi beginning in August of 2016.

Congratulations, Russ!

Suszek Named One of States Top 40 Attorneys For 2015

Suszek Named One of States Top 40 Attorneys For 2015

Tom Suszek

Oxford, MS (January 20, 2016) – Holcomb Dunbar Attorney Tom Suszek has been selected by the Mississippi Business Journal as one of this year’s Mississippi Leaders in Law.

The selection is made after nominations from among the Mississippi State Bar Association’s 9,048 active members. The nomination criteria requires considerations of legal professionals who:

• are astute, wise, knowledgeable and successful
• exemplify the noble tradition of the legal profession
• win cases and solve problems with the utmost integrity
• inspire and lead others with their skills and character
• are role models and mentors
• are passionate and aggressive on behalf of clients and the community.

Tom’s primary areas of practice are commercial law, real estate, wills and estates and litigation. He has been with Holcomb Dunbar Attorneys since his graduation from the University of Mississippi Law Center in 1982.

 
More About Holcomb Dunbar Attorneys:

Holcomb Dunbar is an Oxford, MS law firm representing local, regional, and national clients. The firm specializes in litigation, including insurance defense, product liability, medical malpractice, complex bankruptcies, and white collar crime. Holcomb Dunbar is the Mississippi member of TAGLaw, an invitation-only network of 140 law firms located in more than 100 countries and has earned recognition as a “Go-To” law firm in the area of litigation from Corporate Counsel magazine. The current firm was organized in 1970, but traces its roots to 1885 through its predecessor firms. For more information, visit www.holcombdunbar.com.

Governor Phil Bryant Appoints Holcomb Dunbar Attorney Jim M. Greenlee to Mississippi Court of Appeals

Jim Greenlee

Jim Greenlee

JACKSON, Miss. – Gov. Phil Bryant announced today that he has appointed Jim M. Greenlee to the Mississippi Court of Appeals.

The appointment is effective Wednesday, Jan. 20. Greenlee replaces James D. Maxwell, who Gov. Bryant recently appointed to the Mississippi Supreme Court. Greenlee will represent Northeast Mississippi’s District 1.

“To be considered for this position is an honor,” Greenlee said. “To be actually appointed by Governor Bryant as a judge of the Court of Appeals is a humbling experience for which I am truly grateful. My prayer is that I may serve diligently, seeking justice and truth, always mindful that compassion and humility are virtuous. I would hope that others would help me live up to that prayer.”

Greenlee is the former United States Attorney for the Northern District of Mississippi. He currently is in private practice with Holcomb Dunbar in Oxford, having joined the firm in 2010. He practices white collar and criminal law, governmental enforcement defense and litigates in federal and state courts.

Greenlee served in the U.S Attorney’s office in Oxford for 22 years. He started as an assistant United States attorney in 1987, working in the Civil Division, where he became the lead civil fraud attorney trying bankruptcy, tort, employment rights, eminent domain and white collar criminal cases.

He was appointed by President George W. Bush and confirmed by the U.S. Senate in 2001 as U.S. Attorney. In that capacity, Greenlee’s office prosecuted white collar crimes, public corruption, drug and gun trafficking, and identity theft cases while also representing the United States in civil cases.

“Jim’s background in private practice and experience as a former federal prosecutor make him uniquely qualified for this position,” Gov. Phil Bryant said. “He has served his country with honor and integrity as a member of the United States Navy, and I’m certain he will do the same for his home state on the Court of Appeals. I’m delighted he has accepted this appointment.”

Greenlee received his bachelor’s of engineering degree from the University of Mississippi in 1974. Afterward, he served active duty in the United States Navy until 1978, and in the United States Navy Reserve until 1997. He retired as a captain. During his reserve service, he served as commanding officer of a Reserve Naval Criminal Investigative Service Unit.

Greenlee graduated from the University of Mississippi School of Law in 1981 and entered private practice in North Mississippi. He served on the Mississippi Bar Special Task Force on the Attorney-Client Privilege. Greenlee has made presentations to the Federal Bar Association, Federal Judicial Center on Charging Decisions and the Sentencing Guidelines, and the International Leadership Conference on Social Justice and Public Policy at the University of Mississippi. He was the keynote speaker at the 2009 convention of The Council on Litigation Management.

Greenlee is a member of the Mississippi State Bar, the Lafayette County Bar Association and is a former member of the Federal Bar Association, having served the Federal Bar as Northern District vice president. A bencher in the William C. Keady Chapter of American Inns of Court, he is also a fellow of The Litigation Counsel of America, an honorary of attorneys in trial practice. Greenlee was inducted as a fellow of the Mississippi Bar Foundation in 2010.

Greenlee is the son of the late Tom and Bill (Margaret) Greenlee of Batesville. He has been married to the former Ann Veazey for over 41 years. They have two married daughters, Veazey Hillmer and Taylor Kilgore.

Holcomb Dunbar Celebrates Homecoming

Holcomb Dunbar and LHS Homecoming 2 Front 2 Right window left windowHolcomb Dunbar is a proud supporter of Lafayette County Schools, the Oxford-Lafayette Chamber of Commerce, and the Oxford Square Alliance’s “Paint the Town Red and Gold”  as we celebrate the 50th anniversary of Lafayette County Schools and Lafayette High Schools’ 2015 Homecoming.

Mississippi Premises Liability 2015 Update Now Available

Jonathan Masters and Brad BestHolcomb Dunbar is pleased to announce the printing of the 2015 update to the Mississippi Premises Liability summary.

If you would like a PDF version emailed please let us know here.

 

Mississippi Premises Liability

2015

Introduction**

Premises liability is a theory of negligence which establishes the duty owed to someone injured on a landowner’s or occupier’s premises as a result of conditions or activities on the premises. In Mississippi, premises liability is distinguished by the classification of the complaining party between invitee, licensee and trespasser. Though the Mississippi Supreme Court has repeatedly been asked to abolish these distinctions when deciding a premises liability action and use a reasonable person standard, the Court has declined to do so and continues to follow the practice of classifying a person who enters the land of another as an invitee, a licensee, or a trespasser. See Titus v. Williams, 844 So.2d 459 (Miss. 2003); see also Pinnell v. Bates, 838 So.2d 198 (Miss. 2002). In Pinnell, the Court stated “[t]here is no compelling reason to change our time-honored law on premises liability now. The distinctions between licensee and invitee have been developed over many years and have been grounded in reality.” Id. at 199.

 

Mississippi Maintains the Distinctions Between Status
Invitee, Licensee and Trespasser

Slip and fall cases are analyzed under the general negligence standard of duty, breach, proximate cause and damages. However, to determine the particular duty and any breach, in a premises liability case, there is a three-step process.

Step one: Determine if injured person as an invitee, licensee, or a trespasser.
Step two: What is the duty owed to the injuries person
Step three: Was the duty breached by the landowner or occupier of the premises.

See, Leffler v. Sharp, 891 So. 2d 152 (Miss. 2004).

When determining the status of an injured party, the facts must be examined and in particular the relationship between the injured person and landowner or occupier. The determination of whether an injured party is an invitee, licensee or trespasser can be a fact question for the jury, but if the facts are not in dispute then it becomes a question of law which may allow early resolution by summary judgment. Id. at 156.

Trespasser:

A trespasser is “one who enters upon another’s premises without license, invitation or other right.” Hughes v. Star Homes, Inc., 379 So. 2d 301, 303 (Miss. 1980) (citing Kelley v. Sportsmen’s Speedway, Inc., 224 Miss. 632, 80 So. 2d 785 (1955). The Mississippi Supreme Court has added that a trespasser enters another’s property “merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement or express or implied assurance of safety from the owner or person in charge.” Titus v. Williams, 844 So.2d 459 (Miss. 2003) (citing White v. Miss. Power & Light Co., 196 So.2d 343, 349 (Miss. 1967)).

EXAMPLES

A man left the lounge area of the Quarter Inn, a restaurant/lounge in Vicksburg, Mississippi, and climbed through an open window leading to an adjacent rooftop terrace. It was a small window, three feet off the ground and 24 inches by 32 inches. Further, a locked glass door with “NOT AN EXIT” stenciled on the glass was only four feet away from the window. The man fell through the rooftop approximately twenty feet to the ground. The Court noted that he was an invitee at the time he entered the Quarter Inn, however, he became a trespasser when he climbed onto the rooftop terrace. Leffler v. Sharp, 891 So.2d 152 (Miss. 2004).

The local Parent Teacher Association was holding a Winter Carnival at East Tate Elementary School in Tate County. Anthony Gammel planned on attending the Winter Carnival and parked across the street from the school in the school’s bus parking lot. Anthony was struck by a motorist and killed as he attempted to walk across the roadway to the school. The Court noted the bus parking lot was limited to bus parking only and the lot was not used as parking for the general public. The Court held that Anthony was a trespasser on the school’s property when he chose to park in the bus parking lot. Additionally, the Court noted that Anthony lost his status as a trespasser the moment he stepped off the bus parking lot onto the public roadway, and thus was unable to establish a duty owed at the time of the accident by the school. Gammel v. Tate County School District, 995 So.2d 853 (Miss.Ct.App. 2008).
Licensee:

“A licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner…” Little v. Bell, 719 So. 2d 757, 760 (Miss. 1998) (quoting Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978)).

EXAMPLES

Nunez was visiting her family and riding an ATV when she crashed into a barbed wire fence and was thrown from the ATV. She alleged that the ATV’s steering and brakes failed and that Spino was aware of the problems and failed to warn her. In finding that Nunez was a licensee, the Court noted that she was on Spino’s property riding his ATV for her own pleasure and benefit and she was clearly a social guest. The Court further noted that although Nunez on occasion does some work for Spino, she was merely visiting her family and was not performing any work on that particular day. Nunez v. Spino, 14 So.3d 82 (Miss.Ct.App. 2009).

A “social guest” is classified as a licensee, or someone who enters a landowner’s or occupier’s premises for his own benefit, pleasure or convenience and with the implied permission of the owner or occupier. Grammar v. Dollar, 911 So.2d 619 (Miss.Ct.App. 2005).

Daulton fell on a walkway and was injured while viewing a neighborhood outdoor Christmas display at the Millers’ residence. Every year the Millers decorated their property with lighting displays and other items symbolic of Christmas and allowed visitors to walk about the property and view the displays. The Millers did not charge admission or receive any form of monetary compensation from visitors to the property. In finding Daulton to be a licensee, the Court noted that the landowner did not receive any tangible form of consideration or obtain any business advantage from the visitors. Daulton v. Miller, 815 So.2d 1237 (Miss.Ct.App. 2001).
Invitee:

An invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage. Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978); Langford v. Mercurio, 254 Miss. 788, 183 So. 2d 150 (1966); Wright v. Caffey, 239 Miss. 470, 123 So. 2d 841 (1960). Mutual advantage is needed to create invitee status.

EXAMPLES

A hired housekeeper has been found to be an invitee in determining the homeowner’s duty of care owed toward the housekeeper. Vaughn v. Ambrosino, 881 So.2d 847 (Miss.Ct.App. 2003).

Church members who do not exceed the scope of the church’s invitation are invitees while attending church for church services or other related functions. Clark v. Moore Memorial United Methodist Church, 538 So.2d 760 (Miss. 1989).

A customer who went to a laundromat as a patron and allegedly tripped and fell on a soft drink can in the parking lot would be considered a business invitee for purposes of premises liability. Ballard v. Watkins, 938 So.2d 298 (Miss.Ct.App. 2006).

A drive-thru restaurant patron that never placed an order because the drive-thru line was too long but instead decided to exit the drive-thru line and proceed to leave the restaurant’s premises was found to be an invitee. Magnusen v. Pine Belt Inv. Corp., 963 So.2d 1279 (Miss.Ct.App. 2007).

A teenager who was visiting his uncle at his uncle’s apartment complex and drowned while swimming in complex’s swimming pool was held to be an invitee. Handy v. Nejam, No. 2010-CA-01513-COA (Miss.Ct.App. Feb. 28, 2012). The Court noted that the teenager entered the premises as his uncle’s guest and was presumed to be an invitee under the law.
Change in Status

A person’s status can change depending on the circumstances. If an injured party goes beyond the bounds of their invitation, they may lose the invitee status and rights which accompany such. Dry v. Ford, 238 Miss. 98, 117 So.2d 456 (Miss. 1960).

EXAMPLES

An injured party who asked a garage owner to fix his truck was an invitee; however, when the injured party was allowed by the garage owner to use the facilities to fix his own truck he became a licensee. Id. at 458.

A customer enjoyed an invitation to visit a plant nursery during its operating hours and could thus be considered an invitee. However, one evening he went to the nursery while it was closed and was injured by a heating unit. The Court found that at that particular time he was at best a licensee and at worst a trespasser. Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 38 (Miss. 1989).

A daily newspaper delivery person was assumed by the Court to be an invitee when he entered an office building to deliver and leave the morning newspaper for tenants in that building. One early morning, the newspaper deliverer entered the building, the lights were off and he decided to open a closed elevator door and place the newspapers on the elevator floor. He opened the closed door and attempted to place the newspapers in the elevator, however, he fell in the elevator shaft and injured himself as the elevator was not on that floor. The Court held that he went beyond his limits of invitation by opening a closed or fastened door and was thus a licensee at the time of his injury. Selby v. McWilliams Realty Corp., 246 Miss. 568, 151 So.2d 596 (Miss. 1963).
What is the Standard of Care Once
Status is Determined?

Trespasser – Standard of Care:

The duty owed to trespassers is merely to refrain from willfully or wantonly injuring them. Little v. Bell, 719 So.2d 757 (Miss. 1998) (citing Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097 (Miss. 1986)). An owner or occupier has no duty to protect a trespasser from conditions on the premises; thus, he may not be held liable for injuries which result from passive negligence, which is defined as “the failure to do something that should have been done.” Titus v. Williams, 844 So.2d 459 (Miss. 2003)

EXAMPLE

Injured party, Bracknell, failed to present any evidence that the private property owner’s association wantonly or willfully injured him. Bracknell was the guest of a resident, however, his guest pass had expired. The association did not enforce its rules and regulations to remove guests whose guest pass had expired and it did not enforce its restriction prohibiting guest boats on the private lake. Subsequently, another guest of one of the property owners whose pass had also expired was driving his personal boat, which was prohibited, and crashed into Bracknell causing injury. The Court found that the owner’s association’s lack of attention did not differ from ordinary negligence and did not rise to wanton or willful. Green v. Dalewood, 919 So.2d 1000 (Miss.Ct.App. 2005).

Under Mississippi law, no matter how negligent a landowner or occupier is, he will not be liable to a trespasser provided that it did not amount to willful or wanton negligence. Westmoreland v. Mississippi Power & Light Co., 172 F.2d 643 (5th Cir. 1949).

A septic tank had just been installed on a lot when a young child who lived adjacent to the lot climbed into the tank. As the child was climbing out of the tank he pulled on a 100 pound concrete cover causing it to fall on his head, killing him. The boy was found to be a trespasser and the development company was found not to have violated the standard of care owed to him, to wantonly or willfully injure him. Hughes v. Star Homes, Inc., 379 So.2d 301 (Miss. 1980). The Court then turned to the attractive nuisance doctrine and held that the defendants were entitled to a peremptory instruction because there was nothing inherently dangerous about the septic tank and thus the attractive nuisance doctrine did not apply. Id. at 305.

Licensee – Standard of Care:

As with a trespasser, a landowner or occupier owes a licensee a duty to refrain from willfully or wantonly injuring him. Adams, 497 So.2d at 1100.

EXAMPLE

In Doe v. Jameson Inn, Inc., a minor female who was the guest of a guest of a registered guest entered the hotel for the express purpose of the illegal activity of smoking marijuana. 56 So.3d 549 (Miss. 2011). She was subsequently raped in the hotel room. In finding that the minor child was not an invitee, the Court noted that the element of mutual benefit was lacking because the hotel received no benefit by virtue of the minor child’s presence on the premises. Id. at 555.

In Turnipseed v. McGee, the Court held that it is the landlord’s duty to exercise reasonable care to keep safe the areas of the premises over which he retains control, and if negligent, and “injury results to a tenant or to a person there in right of the tenant, he is liable in tort.” 236 Miss. 159, 109 So.2d 551, 554 (Miss. 1959).

In relying on the holding in Turnipseed, the Court in Lucas v. Miss Housing Authority No. 8 held that an invited guest of an apartment tenant was an invitee to the apartment complex when he was on the premises to use the swimming pool in the common area. 441 So.2d 101 (Miss. 1983). The Court stated that “[i]t would be unconscionable to establish a principle of law that [the apartment complex] owed to the six-year-old child of a tenant the duty to use reasonable care not to injure him and, yet, owed to his six-year-old invited guest, swimming in the same pool, only the duty not to willfully or wantonly injure him.” Id. at 103. See also Doe v. Mississippi State Fed’n of Colered Women’s Club Housing for the Elderly in Clinton, Inc. 941 So.2d 820 (Miss.Ct.App. 2006). Again, in relying on the language expressed in Turnipseed and restated in Lucas, a minor was held to be an invitee by virtue of her occasional weekend visits with her father, who was a tenant of the subject apartment complex.
However, compare the above cases with Price v. Park Management, Inc., where the tenant of an apartment complex and his guest were attacked in the tenant’s apartment. 831 So.2d 550 (Miss.Ct.App. 2002). The Court held that the duty owed to the tenant was to keep the premises in a reasonably safe condition, but the duty owed to the guest of the tenant was that of a trespasser, to refrain from wantonly or willfully injuring him. Id. at 551. The Court noted that it is “well settled that social guests of the tenant are owed no special duty by the landlord, but merely the duty owed by the landlord to trespassers that the landlord not wantonly or willfully injure the guest.” Id. (citing Lucas v. Buddy Jones Ford Lincoln Mercury, 518 So.2d 646, 647 (Miss. 1988)).

Hoffman Exception – Duty to a Licensee when Increased Hazard Present:

The Hoffman exception applies the standard of ordinary and reasonable care to licensees when the owner operates an activity which causes an unusual danger or increases the hazards to known licensees. Hoffman v. Planters Gin Co., Inc., 358 So.2d 1008 (Miss. 1978). In Hoffman, the Court changed the standard of care owed to a licensee, but it limited the new standard of care to cases involving injury resulting from active conduct as opposed to conditions of the premises, or passive negligence. In Hoffman, it was held that the owner or occupier is liable for injury proximately caused by the owner or occupier’s “affirmative or active negligence in the operating or control of activities which subjects a licensee to unusual danger or increases the hazard to the licensee when the presence of the licensee is known.” Little by Little v. Bell, 719 So.2d 757, 761 (Miss. 1998). However, the Hoffman exception only applies to cases involving the operation or control of a business. Hughes v. Star Homes, Inc., 379 So.2d 301 (Miss. 1980). “In order to fall within the Hoffman exception, the landowner must be aware of the licensee’s presence upon the premises, the landowner must engage in affirmative or active negligence in the operation or control of a business, the landowners’ conduct in regards thereto must subject the licensee or invitee to unusual danger, or increase the hazard to him, and the landowner’s active or affirmative negligence must have proximately caused the plaintiff’s injury.” Little by Little, 719 So.2d at 762.

The Mississippi Supreme Court, in Little by Little, declined to extend the Hoffman exception to situations where there is no operation or control of a business. Id. Andrea was a guest at the Bells’ home and was allowed to play on their trampoline. While either mounting or dismounting the trampoline, Andrea stepped on a milk crate below the trampoline, fell and suffered an injury. The Court found her to be a licensee since there was no mutual benefit, that is, there was no benefit flowing to the landowners by Andrea’s presence on the premises. The Court noted there was no evidence that the Bells knowingly or intentionally placed the milk crate in such a manner as to constitute a hazard. Further, the Court expressly declined to abolish the traditional classifications of injured parties and it rejected the plaintiffs’ invitation to extend the Hoffman exception outside of businesses. Id.
Traps and Hidden Objects:

A premises owner or occupier may be liable when he sets traps or exposes licensees to hidden perils. Marlon Inv. Co. v. Conner, 246 Miss. 343, 149 So.2d 312 (1963). In Marlon Inv. Co., the jury found that the landowner had placed the injured party in a trap when she fell in an unlit abandoned stairwell that was not marked or sealed off and that the landowner knew of the danger and could reasonably foresee an injury to someone else. The owner had a lighted sign with an arrow that pointed downward towards the stairwell indicating his business. The Court affirmed the jury verdict for the injured party and held that the premises owner must disclose to the licensee any concealed, dangerous condition on the premises for which the owner had knowledge in order that the licensee could exercise reasonable care. Id.

It was a fact question for the jury to determine whether a homeowner had a duty to warn a roofing contractor of a rotten spot in the roof which was concealed by pine needles. Hearn v. Brown, 876 So.2d 380 (Miss.Ct.App. 2003) (overruled on other grounds by White v. Stewman, 932 So.2d 27 (Miss. 2006)).

A landowner did not owe her eight-year-old great grandson, a licensee, a duty to specifically warn him of potential danger posed by a debris pile, as the debris pile in her yard was not a trap or hidden peril. Vaughn ex rel. Vaughn v. Estate of Worrell, 828 So.2d 780 (Miss. 2002). The Court noted that the child frequently rode his bicycle in the landowner’s yard, that he was aware of the debris pile and was able to describe it. Id.

Invitee – Standard of Care:

An invitee is owed the highest duty of care. A landowner or occupier must provide property that is reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that is not plain and open view. A premises owner is not absolved from his duty to use reasonable care in keeping his premises in a reasonably safe condition just because he warns of a dangerous condition. See Mayfield v. Hairbender, 903 So.2d 733 (Miss. 2005). In Mayfield, the Court noted there is a two-part test requiring separate inquiries: (1) whether the owner kept the premises reasonably safe, and (2) whether the owner warned of hidden dangers of which the owner knew or, in the exercise of reasonable care, should have known. Id. at 738. Breaching either duty supports a claim of negligence. Id.

EXAMPLE CASES

Injured party, an invitee, fell in Home Depot. However, she did not know what caused her to fall. She could only speculate that a pallet or wood piece may have caused her to slip and/or trip, and such speculation contradicted her deposition testimony that she did not know what caused her fall. The Court found that no proof was presented that the injury was the result of negligence by Home Depot and that Home Depot had no knowledge of a dangerous condition. Rod v. Home Depot USA, Inc., 931 So.2d 692 (Miss.Ct.App. 2006).

The Court held it was a question of fact for a jury whether or not Holiday Inn knew or should have known of a loose mirror in its bathroom that subsequently fell and injured the Pigg’s minor son, who was a hotel guest and thus an invitee, when he closed the bathroom door on which the mirror hung. Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197 (Miss. 2008).

A hotel guest slipped on a rubber shower mat when exiting the shower. He claimed the mat twisted or slipped causing him to fall. The Court found there was no evidence of a dangerous condition or that the defendant had any knowledge of a dangerous condition. Stanley v. Boyd Tunica, Inc., 29 So.3d 95 (Miss.Ct.App. 2010). A “property owner cannot be found liable for the plaintiff’s injury where no dangerous condition exists.” Id. at 97-98 (citing Delmont v. Harrison County Sch. Dist., 944 So.2d 131, 133 (Miss.Ct.App. 2006)).

Skating rink did not breach a duty owed to its patron that allegedly tripped and fell over a toy while skating. She claimed the toy was thrown onto the floor from the adjacent arcade. However, no evidence was presented that the skating rink or its employees threw the toy or had any knowledge of the toy being on the skating rink floor. Sullivan v. Skate Zone, Inc., 946 So.2d 828, 832 (Miss.Ct.App. 2007). The Court rejected the argument for “mode of operation” theory of premises liability, which holds that “when an owner of a self-service establishment has actual notice that his mode of operation creates certain risks of harm to customers, and those risks are foreseeable, it is not necessary for the plaintiff to prove notice of the hazard that caused the injury.” Id. (quoting Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 466-67 (Miss.Ct.App. 2003)).
Foreseeability – Was the Particular Act Foreseeable?

Acts by Third Parties:

An apartment complex was renovating a unit and it deposited debris and tile in a nearby wooded area. A group of children subsequently entered the wooded area and began throwing the tile. Undoubtedly, one young boy’s eye was “put out” by a flying piece of tile. The question was raised whether the apartment complex breached a duty not to create a dangerous condition. However, the Court found that the action of plaintiff’s companion was an intervening cause between the apartment complex’s placement of debris and Plaintiff’s injury. It further noted, however, that under the principles of foreseeability a defendant may be held liable for his failure to anticipate an easily-predicted intervening cause and to properly guard against it. But, a defendant may be shielded from liability if the intervening force was a superseding cause. The Court declined to impose a duty upon the complex to reasonably foresee that the discarded scrap tile pieces would be propelled by children at a high rate of speed at the plaintiff. Southland Management Co. v. Brown, 730 So.2d 43 (Miss. 1999).

Assault/Criminal Acts:

A business owner has a duty to protect an invitee from acts of third parties where such acts are reasonably foreseeable. Newell v. S. Jitney Jungle Co., 830 So.2d 621, 623 (Miss. 2002). The Mississippi Supreme Court has stated two ways an injured party can prove foreseeability for the purposes of establishing a duty in premises liability cases:

1) that the owner or occupier had actual or constructive knowledge of the assailant’s violent nature, or
2) actual or constructive knowledge an atmosphere of violence existed on the premises. Gatewood v. Sampson, 812 So.2d 212, 220 (Miss. 2002). See Criminal Conduct section below for further discussion at page 19.

Children as Trespassers – Attractive Nuisance Doctrine:

The Attractive Nuisance Doctrine applies to situations involving child trespassers who may be especially attracted to the items on the premises. The theory of attractive nuisance is that a landowner or occupier is subject to liability for injuries to children trespassing on the landowner or occupier’s premises. Keith v. Peterson, 922 So.2d 4 (Miss.Ct.App. 2005), cert. denied, 926 So.2d 922 (Miss. 2006).

The attractive nuisance doctrine balances two competing interests: first, it considers the interest in protecting children and recognizes that most children will trespass on occasion and are sometimes injured, and second, it weighs the landowner’s interest in not being unreasonably burdened to ensure his property is safe to trespassing children. Harkins v. City of Carthage, 284 So.2d 530 (Miss. 1973).

The doctrine is stated as:

“One who maintains dangerous instrumentalities or appliances on his premises easily accessible to children and of a character likely to attract them in play, or permits dangerous conditions to remain thereon with the knowledge that children are in the habit of resorting thereto for amusement and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child . . . who is injured thereby, and who did not know and appreciate the danger incurred by him in playing with the instrumentality or in the vicinity of the dangerous condition, or was too young to be charged with such knowledge.” Hughes v. Star Homes, Inc., 379 So.2d 301, 304-05 (Miss. 1980) (quoting Lucas v. Hammond, 150 Miss. 369, 381, 116 So. 536, 537 (Miss. 1928).

The plaintiff must prove four elements when a child enters another’s property and is injured by a dangerous condition:

1) that the owner knew or should have known of the dangerous artificial condition,
2) that the owner knew or should have known that children frequent the area where the
dangerous condition exists,
3) that it is unlikely that the child trespasser could appreciate the risk presented, and
4) that the cost to correct the dangerous condition is minimal compared to the magnitude
of the risk.

In order for a condition on a premises to be an attractive nuisance there must be an inherently dangerous instrumentality maintained on the premises which is easily accessible to children. Hughes, 379 So.2d 304-05. The Mississippi Supreme Court has held that a railroad turntable, unexploded anti-aircraft shells, dynamite or dynamite caps, or other explosives were inherently dangerous instrumentalities. Keith v. Peterson, 922 So.2d 4, 11 (Miss.Ct.App. 2005) (citing Shemper v. Cleveland, 212 Miss. 213, 54 So.2d 215 (1951); Hercules Powder Co. v. Wolf, 145 Miss. 388, 110 So. 842 (1927); McTighe, Hughey & McTighe v. Johnson, 114 Miss. 862, 75 So. 600 (1917)).
Slip and Falls

Standard

In order for an injured “invitee” to recover in a slip and fall case, he must show:

1) some negligent act of the landowner or occupier caused his injury;
2) that the landowner or occupier had actual knowledge of a dangerous condition and failed to warn the injured party; or
3) that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the landowner or occupier, in that the landowner or occupier should have known of the dangerous condition.

Anderson v. B.H. Acquisition, Inc., 771 So.2d 914, 918 (Miss. 2000) (citing Downs v. Choo, 656 So.2d 84, 86 (Miss. 1995)).

EXAMPLES:

Proof that the liquid’s presence on the floor for a sufficient amount of time to give reasonable notice to the owner is required in order to establish a negligence claim in a slip and fall case. Douglas v. Great Atlantic & Pacific Tea Co., 405 So.2d 107, 111 (Miss. 1981).

Gas station manager routinely inspected area around pumps approximately once every 30 minutes on evening the alleged slip and fall occurred, and he did not witness a spill or see any kind of slippery substance. Further, no one reported a spill or slippery substance. The gas station did not breach its duty of care owed to a customer who allegedly slipped and fell in a slippery substance around the gas pumps. Almond v. Flying J Gas Co., 957 So.2d 437 (Miss.Ct.App. 2007).

Court held that it was an issue of fact whether the business created an unreasonably dangerous condition by not having non-skid matting in its self-service drink area. Merritt v. Wal-Mart Stores, Inc., 911 F.Supp. 242 (S.D.Miss. 1995).

Man slipped on a banana in the produce section of the grocery store with an employee standing nearby. There was conflicting testimony regarding the appearance of the banana and thus its age. It was a jury question as to whether the store had actual or constructive knowledge that the banana peel was on the floor. Downs v. Choo, 656 So.2d 84 (1995).

An on-duty casino employee fell into a patron who was facing a slot machine causing the patron to fall to the floor and sustain injuries. In order to maintain a claim, the injured patron had to show that the employee was conscious when he fell into her. The employee testified that he fainted, and other evidence showed that he did not have a history of fainting and he did not have a medical condition that would have caused him to faint. Court upheld summary judgment in favor of casino. Webb v. Imperial Palace of Mississippi, LLC, 76 So.3d 759 (Miss.Ct.App. 2011).

Open and Obvious

In Tharp v. Bunge, 641 So.2d 20, (Miss. 1994), the Mississippi Supreme Court abolished the open and obvious defense in negligence actions and initiated the comparative negligence concept. However, the Court announced a few black letter conclusions as a result of the open and obvious nature of certain dangerous conditions and the abolishment of the defense:

1) if an invitee is injured by a natural condition on a part of the business that is immediately adjacent to its major entrance and exit, then there is a jury question as to the openness and the obviousness of the danger. Goodwin v. Derryberry Co., 553 So.2d 40 (Miss. 1989).

2) if an invitee is injured by a natural condition on a remote part of the business premises, and the danger was known and appreciated by the injured party, then there is no jury question. Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So.2d 646 (Miss. 1988).

3) if an invitee is injured by an artificial/man-made condition on an adjacent or internal part of the business premises, then there is a jury question as to the openness and obviousness of the danger. Tharp v. Bunge, 641 So.2d 20, (Miss. 1994); Tate v. Southern Jitney Jungle, 650 So.2d 1347 (Miss. 1995); Baptiste v. Jitney Jungle, 651 So.2d 1063 (Miss. 1995); Downs v. Choo, 656 So.2d 84 (Miss. 1995); Fulton v. Robinson, 664 So.2d 170, 175 (Miss. 1995).

“Just how open and obvious a condition may have been is a question for the jury, in all except for the clearest of cases.” Bell v. City of Bay St. Louis, 467 So.2d 657, 664 (Miss. 1985). The Mississippi Supreme Court found that Fulton was one of those clearest of cases, where the injured party fell while walking across a snow covered parking lot, and affirmed a directed verdict for the landowner. 664 So.2d at 176.

Owner Creates Condition

Perhaps the most difficult type of falls to defend occur when the evidence demonstrates a finding that the owner or occupier of the premises created the dangerous condition which caused the injury. Where an injured party who slipped and fell on a business’ premises demonstrates that the dangerous condition was created by negligence of the business or its employees, the injured party need not prove notice to the business. Miller v. R.B. Wall Oil Co., Inc., 970 So.2d 127 (Miss. 2007) (citing Drennan v. Kroger, Co., 672 So.2d 1168, 1170 (Miss. 1996)). However, if the dangerous condition was created by someone who is not associated with the business, the injured party must demonstrate that the owner or occupier had actual or constructive knowledge of the dangerous condition as well as sufficient opportunity to correct the condition. Id.

Proof of a business owner’s knowledge of a dangerous condition is unnecessary where the condition is created by his negligence or the negligence of someone under his authority. Elston v. Circus Circus Mississippi, Inc., 908 So.2d 771 (Miss.Ct.App. 2005), cert. denied, 920 So.2d 1008 (Miss. 2005). The Court in Elston reversed the grant of summary judgment for the business where the injured party slipped and fell in a puddle of water in the vicinity where plants were watered by the business’ agents. The Court noted that a jury may conclude that the business was negligent because it created the dangerous condition and/or because it had constructive notice of the puddle. Id. at 776.

A patron at Fred’s Discount Store slipped on a plastic grocery sack on the floor near the checkout stand and she suffered injuries. A Fred’s representative testified that the shopping bags are required to be kept in a bag well by the cashier and that only Fred’s employees handled the plastic bags. However, the patron did not know how the plastic bag came to be on the floor, nor did she know how long it had been there. The Court found that a reasonable inference could be drawn that Fred’s caused the shopping bags to be on the floor, and thus, the bag was on the floor due to Fred’s negligence. Fred’s Stores of Tennessee, Inc. v. Pratt, 67 So.3d 820 (Miss.Ct.App. 2011).
Unknown Person Creates the Condition – Constructive Knowledge

In contrast to a dangerous condition created by the owner or occupier of a premises, the most difficult way for an injured party to prove negligence on the part of an owner or occupier is when he must establish liability by showing constructive knowledge of the dangerous condition.

Constructive knowledge is established when the dangerous condition is shown to have existed for such a length of time that, in the exercise of reasonable care, the business operator should have known of the condition. Almond v. Flying J Gas Co., 957 So.2d 437 (Miss.Ct.App. 2007). Courts will not indulge presumptions of an injured party’s deficient evidence as to the length of time the hazard existed, but instead, an injured party must present admissible evidence as to the relevant actual length of time in order to establish the owner’s or occupier’s constructive knowledge. Waller v. Dixieland Food Stores, Inc., 492 So.2d 283, 286 (1986); see also Dickens v. Wal-Mart Stores, 841 F.Supp. 768, 771 (S.D.Miss. 1994).

A gas station’s manager inspected the area around gas pumps approximately once every thirty minutes on the evening that injured party alleged she slipped and fell on slippery liquid substance near pumps. The manager did not witness a spill or see any kind of slippery substance on the ground around the pumps, and no one reported a spill or a slippery substance during the manager’s shift. The Court noted that the injured party did not offer any admissible evidence as to the length of time the alleged slippery substance was present. The Court found that the gas station did not breach its duty of care to the injured party. Almond, 957 So.2d at 440.

Injured party did not present any evidence as to how long a soft drink can, which she alleged to have tripped on and fallen, was in the parking lot of the laundromat. Thus, the owner did not have constructive knowledge of the dangerous condition and was not liable for injuries. Ballard v. Watkins, 938 So.2d 298 (Miss.Ct.App. 2006).
Specific Circumstances
Animals

Mississippi follows the “one free bite” rule. The first bite effectively provides the land owner with notice of the dangerous propensity of the animal.

There must be proof that the domestic animal exhibited some dangerous propensity or disposition prior to the alleged injury, that the owner knew or should have known of the propensity or disposition, and that the owner should have foreseen that the animal was likely to attack someone. Poy v. Grayson, 273 So.2d 491 (Miss. 1997).

An aggressively growling dog that also chases people is enough to create a jury question of whether there was notice of its dangerous propensity. Mongeaon v. A&V Enterprises, Inc., 733 So.2d 170 (Miss. 1997).

However, the “one-free bite” rule may not apply when the type of animal involved has inherent characteristics that place the premises owner on notice of a dangerous propensity. Olier v. Bailey, 2015WL1611772 (Miss. S. Ct). Olier involved a goose who gave chase to a guest who fell when attempting to flee at attacking goose. The particular goose had not previously attacked anyone. The court, however, found that that geese in general have such a propensity such that a premises owner should have known there was some likelihood that it might attack guests.

Common Areas

If the injury occurs in a “common area” the court will look to who had control of the area. For example, Howell v Holiday, 2011 CA 01789-COA (Miss. Ct. App. 2013), the court found that plaintiff’s status as an invitee or licensee was jury questions. There the plaintiff tripped over an extension cord in front of defendant’s hair salon. The plaintiff was not customer of the hair salon, but parked in the parking lot after hours to attend and event unrelated to the hair salon. Here the jury must determine who had control over the common area of the premises and responsibility for the alleged dangerous condition of the property.

Thresholds

Raised thresholds are generally not considered unreasonably dangerous. In McGovern v. Scarborough, 566 So.2d 1225 (Miss. 1990), the Mississippi Supreme Court found that “a raised threshold was not unreasonably dangerous as a matter of law because the floor itself was at least two inches higher than the exterior walkway. See, Dickinson v. Vanderburg, 141 So.3d 455 (Miss. Ct. App, 2014)(affirming that undamaged thresholds, curbs and steps which are common architectural features are not unreasonably dangerous).
Cracks in Parking Lots and Sidewalks

Imperfections to a parking lot are generally not considered unreasonably dangerous conditions. First Nat’l Bank of Vicksburg v. Cutrer, 214 So.2d 265 (Miss. 1968). Normally occurring dangers do not become hazardous simply because they contain minor imperfections. Some examples of where Mississippi Courts have found such conditions to not be unreasonably dangerous:

Differential between sidewalk sections of three to 4 inches are not unreasonably dangerous. City of Biloxi v. Schamback, 157 So.2d 386 (Miss. 1963).

Cracks on the edge of a concrete riser are not unreasonably dangerous condition. First Nat’l Bank of Vicksburg v. Cutrer, 214 So.2d 465 (Miss. 1968)

One inch elevation of a sidewalk did not create a dangerous condition. Bond v. City of Long Beach, 908 So.2d 879 (Miss. Ct. App. 2005).

A crevice in the street stretching a half-inch to 3 inches by 18 inches to 2 feet was not enough to make a street unsafe. City of Greenville v. Laury, 159 So. 121 (Miss. 1936)(Cited with approval in Knight v. Picayune Tire Svcs. Inc., 78 So.2d 356 (Miss. App. 2011)).

Hole between sidewalk sections covered by grass not unreasonably dangerous. City of Meridian v. Raley, 118 So.2d 342 (Miss. 1960).

Threshold 3/4 of an inch, not unreasonably dangerous. McGovern v. Scarborough, 566 So.2d 1225 (Miss. 1990).

Three-inch depression in a sidewalk not unreasonably dangerous. City of Meridian v. Crook, 69 So. 182 (Miss. 1915)(To hold otherwise “would be equivalent to holding that sidewalks in the residence portion of our cities must not deviate three inches from a perfectly smooth surface… The practical result rendering municipalities insurers of the safety of pedestrians.” Id. at 184).

Crack in sidewalk large enough to catch the heel of a pedestrian’s shoe was not unreasonably dangerous. Rowe v. City of Winona, 159 So.2d 282 (Miss. 1964), aff’g directed verdict.

Seven and One-half inch high side walk not unreasonably dangerous. Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473 (Miss. 1967).

Six inch high curb did not create jury question following a fall. Kroger v. Ware, 512 So.2d 1 281 (Miss. 1987).

An uneven concrete gap in parking a lot was not unreasonably dangerous. Penton v. Boss Hogg Catfish Cabin, LLC, 42 So.3d 1208 (Miss. Ct. App. 2010), Aff’g summary judgment.

Trip Over Parking Bumper

In Jones v. Imperial Palace of Mississippi, LLC, 147 So.3d 318 (Miss. 2014), the Supreme Court affirmed dismissal for the premises owners. Plaintiff alleged that a parking bumper was misaligned and jutted into his path. A casino employee testified that he had reported to his superiors that generally the parking bumpers sometimes became misaligned. However, this testimony was not specific to the particular parking bumper and there was no testimony of how long the particular bumper had been out of place. The Court specifically rejected any effort to use the general knowledge of occasional misalignment of the bumpers. The evidence must be specific to the particular dangerous condition.
Concrete Bollards

The Mississippi Supreme Court has provided that as a matter of law, there is no duty owed by a convenience store owner to persons inside the store to erect barriers in order to prevent vehicles from driving through the store’s plate glass window. Carpenter v. Stop-N-Go Markets of Georgia, Inc., 512 So.2d 708 (Miss. 1987).

This rule has consistently been applied to injuries occurring outside the store as well. See, Heard v. Intervest Corp., 856 So.2d 708 (Miss. 1987); Blount v. The Pantry Inc., 936 So.2d 967 (Miss. Ct. App. 2006), and Stanley v. Scott Petroleum Corp., 2015 WL 148915 (Miss. Ct. App. Jan. 13, 2015)(not released for publication)(patrons at a gas station walk-up window hit by out of control vehicle).

However, in Cheeks v. AutoZone, Inc. 2014 WL 4748099 (Miss. 2014), the Mississippi Supreme Court found that AutoZone recognized the hazard by constructing and placing bollards around its entrance. The court noted that certain factual circumstances give rise to the possibility for a duty to arise, such as where the store had assumed the duty by the initial construction of the bollards.

Duty to Render Aid

A property owner who holds its property open to the public is in a special relationship with those who accept the invitation to come onto their property and owes an affirmative duty to aid the injured once learning of the injury. Spotlight Skating Rink, Inc. v. Barnes ex rel. Barnes, 988 So.2d 364 (Miss. 2008). This duty includes the duty to take reasonable action to give invitees first aide and to care for them until they can be cared for by others, such as emergency medical technicians.

In 2014, the Mississippi Court of Appeals affirmed this standard and further provided that the duty to render aid does not include performing EMT-level medical rescue efforts such as CPR or using at automated external defibrillator when so trained or available. O’Gwin v. Isle of Capri-Natchez, Inc., 139 So.3d 783 (Miss. Ct. App. 2014).

Automatic Doors

Automatic doors are analyzed under the general premises liability standard. The premises owner must have actual or constructive knowledge of the particular hazard, and failed to remedy to warn its invitees. Davis v. Office Max, 131 So.3d 588 (Miss. Ct. App. 2013).

Courts have applied the res ipsa loquitur doctrine to automatic doors accidents. This doctrine provides that negligence can be inferred from the particular factual circumstances. However, courts are reluctant to infer negligence and hazard that this doctrine must be applied cautiously. The elements that an injured party must carry to establish this doctrine are:

1. The premises owner had control or management of the automatic doors;
2. The type of injury was in the ordinary course of things that would not have happened if the premises owner had used proper care; and
3. The injury was not the result of the claimant’s own voluntary act.

Gray v. BellSouth Telecomm, Inc., 11 So.3d 1269, 1272 (Miss. Ct. App. 2009).

Some automatic door cases allege both premises liability negligence claims and product liability claims. The concepts are distinct and apply different standards. This type of case usually arises in allegations against the door manufacturer or seller when the claimant believes the sensor’s were negligently manufactured or designed. See, Wolf v. The Stanley Works, 757 So.2d 316 (Miss. Ct. App. 2000).

Falling Merchandise

An owner has a duty to exercise reasonable care in displaying its products so that they will not fall and injure customers. This includes a duty to display merchandise so that it will not fall as a result of the foreseeable acts of other customers. An owner may be liable for injuries sustained when improperly displayed merchandise falls on a customer, falls into an aisle where a customer stumbles over it or falls toward a customer who is injured in attempting to avoid it.

Like the general premises liability analysis, an owner is not liable for a customer’s injuries in a falling-display case unless the owner either created the condition which caused the accident or had actual or constructive notice of the condition. If merchandise is properly displayed, the storekeeper is not liable when another person knocks over the display and injures a customer. See, 293 Premises Liability 3d § 49:17 (2014 ed.)

Res ipsa loquitur

Res ipsa loquitur can apply to falling merchandise cases where the merchandise was within the owner’s exclusive control, such as where the merchandise was not readily accessible to customers and there was no evidence that customers moved the merchandise, or the product was heavy and there was no evidence of customer abuse or other unforeseeable or uncontrollable event.

Res ipsa loquitur does not apply in falling merchandise cases where the merchandise could have been disarranged by the customer or third persons, such as where the general public had unfettered access to the display or the article in question had actually been moved, thereby eliminating the owner’s exclusive control. Res ipsa loquitur is also inapplicable where there is direct evidence of the cause of the display fall or where the customer, without relying on res ipsa loquitur, has the available means of establishing the storekeeper’s negligence. See, 293 Premises Liability 3d § 49:17 (2014 ed.)
Criminal Conduct

Generally criminal acts “break” the causation chain thus alleviating the premises owner from liability. However, such acts may be deemed reasonably foreseeable if the premises owner had cause to anticipate the acts.

Foreseeability for such can be established by:

1. Actual or constructive knowledge of the parties’ violent nature, or
2. Actual or constructive knowledge that an atmosphere of violence existing on the
premises.

Evidence of the existence of an atmosphere of violence may include “the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises as well as the frequency of criminal activity on the premises.” Lyle v. Mladninich, 584 So.2d 397, 399 (Miss. 1991).

The other crimes in the area or on the premises, must be similar in nature. In Ellis v. Gresham Service Stations, Inc., plaintiff produced numerous incidents of general criminal activity near the store. However, none involved unprovoked assaults. Most were crimes against the store itself. 55 So.3d 1123 (Miss. App. 2011).

Moreover, you can compare the similar crimes with the overall customer traffic. The Kroger Co. v. Knox, 2009-CA-01008-SCT (June 28, 2012). As a matter of law, in the context of Kroger’s more than three million customer visits over the course of three years; four incidents of criminal activity are wholly insufficient to establish as atmosphere of violence.

Importantly, even if the premises owner has such knowledge, a claimant must still prove that some security measure would have in fact prevented the incident. See, Davis v. Christian Brotherhood, 957 So.2d 390 (Miss. App. 2007).

In Christian Brotherhood, Lucius Davis was shot at Christian Brotherhood Apartments. Davis was living with this mother at the time. The complex was in a “high” crime area. Davis’ heirs claimed the apartment’s owners were aware of the high crime rate, and that the incident would not have occurred had it maintained security guards, lights, guarded entry, and other such security measures.

Despite the owner’s knowledge, the court noted that the apartment owner’s had previously hired security guards. And importantly, there was no evidence that any suggested security measure – gated access, security cameras, security guard, or lights– would have prevented the particular shooting from actually occurring.

Thus, not only must the premises owner have knowledge of the criminal conduct, but also must be a cause in fact – some corrective action from a security standpoint would have prevented the incident. See Double Quick v. Lymas, 50 So.3d 292 (Miss. 2010).
Multiple Owners

An individual may be an invitee as to one owner, but a trespasser to another owner. The injured party’s status as an invitee, licensee or trespasser should be analyzed separately as to each defendant. Thus, a different standard may apply within the same set of facts. In Corley v. Evans, 835 So.2d 30 (Miss. 2003), Stacy Evans Hamrick and her father, James, owned 1000 acres of land. Stacy owned “20%” of the land, but no specific parcel was delineated. Scott Corley was shot during a crawfish boil hosted and planned by Stacy. James knew the event was occurring but took no part in the planning or hosting.

The opinion makes note that the victim was a licensee as to James Evans because, “James derived no benefit from the crawfish boil and was not involved in its promotion or staging.”

See also Elliott v. First Security Bank, 151 So.3d 1059 (Miss. Ct. App. 2014)(finding that plaintiff was an invitee to City, but a licensee as to the Bank for a fall on city sidewalk in front of the bank).

Swimming Pools

Swimming pool owners have a duty to keep the premises reasonably safe and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view. Handy v. Nejam d/b/a Belleview Place Apartments, 2010-CA-01513-COA (Feb. 28, 2012).

Moreover, the risk of drowning in a pool is open and obvious. Howze v. Garner, 928 So.2d 900, 904 (Miss. Ct. App. 2005). Moreover, in Howze, the Court noted that the pool owner’s “failure to provide flotation devices, hire certified lifeguards, install a life-line, or [provide] brochures pertaining to pool safety does not constitute a breach of the owners’ duty to warn of hidden perils.”
Malicious Prosecution

The required elements of malicious prosecution are:

1) the institution of a proceeding;
2) by, or at the insistence of the defendant;
3) the termination of such proceedings in the plaintiff’s favor;
4) malice in instituting the proceedings;
5) want of probable cause for the proceedings; and
6) the suffering of injury or damage as a result of the prosecution.

All six elements must be proven by a preponderance of evidence.

EXAMPLE:

Carl Williams and Willie Reed were shopping at Winn-Dixie when an employee for Winn-Dixie noticed Reed place meats in her purse. Williams and Reed were confronted by employees and were asked to allow the purse to be searched. However, Williams directed Reed to leave the store and he escorted her from the premises. The employees were able to obtain the license plate number of the vehicle in which they left. An affidavit was signed against Williams and he was subsequently arrested. Williams was later acquitted of the shoplifting charges, and he thereafter filed suit against Winn-Dixie for malicious prosecution. Williams v. Jitney Jungle, 910 So.2d 39 (Miss.Ct.App. 2005). The Court found that Winn-Dixie did not lack probable cause in pursuing the criminal proceedings since an employee witnessed Williams assisting Reed in stealing meat from the store. Additionally, Williams failed to produce any subjective evidence that Winn-Dixie maliciously brought the charges against him. Malice “connotes a prosecution instituted primarily for a purpose other than that of bringing an offender to justice.” Nassar v. Concordia Rod & Gun Club, Inc., 682 So.2d 1035, 1038 (Miss. 1996). The Court affirmed the grant of summary judgment in favor of Winn-Dixie.

In addition, under Mississippi law, dismissal of the proceedings as a result of a voluntary settlement or compromise does not constitute termination in the accused’s favor. Buzz v. Moak, No. 2011-CA-00407-COA (Miss.Ct.App. Sept. 18, 2012) (citing Van v. Grand Casinos of Miss., Inc., 724 So.2d 889, 892 (Miss. 1998)).

Use of Experts

Generally, the use of an expert to theorize as to the cause or source of hazard, such a spill is insufficient to survive summary judgment. See, Cofield v. Imperial Palace of Mississippi, No. 2013-CA-00037-COA (April 8, 20014). Cofield lacked any evidence to support the source or length of the time the spill has been on the floor. The expert attempt to testify to such was “mere speculation and not based on any evidence in the record.” The Mississippi Supreme Court granted further review so this area is subject to further review. See also, Alqasim v. Capitol City Hotel Investors, 989 So.2d 488 (Miss. Ct. App. 2008).

The Mississippi Supreme court has weighed in on the speculative nature to deciding between conflicting inferences:

while inference of negligence may be drawn from circumstantial evidence, those inferences may be the only ones which reasonably could be drawn from the evidence presented, and if the circumstantial evidence presented lends itself equally to several conflicting inference, the trier of fact is not permitted to select the inference it prefers, since to do so would be the equivalent of engaging in pure speculation about the facts.

McCullar v. Boyd Tunica, Inc., 50 So.3d 1009 (Miss. Ct. App. 2010).
VII. Investigation Tips

Interviews

All witnesses need to be interviewed as soon as possible. Recording the interview is preferable. In these interviews all details should be obtained: details of the area, caused the fall, weather, types of shoes, clothes, what carrying, warnings, visibility. Any existing medical condition or physical limitations that may have caused the incident should be obtained. Attempt to determine the exact location of the incident. The ownership of the area or it may change the person’s status from an invitee.

Find out the names and contact information of other witnesses.

It is also helpful to obtain alternate contact information with the witness, such as their relatives who may be contacted should the witness not be found at the given address and phone number at a later time.

Documents

Obtain copies of all employment personnel files of the persons involved.

Get copies of deeds, plats, and leases, concerning the premises.

If a corporation is a party, determine if they company is properly registered and in good standing with the state.

Gather all incident reports (premises owners, policy, ambulance, security personnel).

Collect all sweep logs, bathroom inspection documents, repair records, store reports or other such -documents which may indicate timely inspections of the area.

Gather employee policy, procedures or training manuals that may be relevant.

Ask about maintenance records which may apply to the type of incident – refrigeration repair, automatic doors, and floor cleaning or waxing schedules. If a third-party vendor may some connection to the claims, obtain those records and contact information.

Photographs

Collect any photographs (specifically ask if there are and images which may be saved on someone’s smart phone.)

If photos are not sufficient, request additional photographs of the area noting if any changes have occurred since the incident.

Secure surveillance video.

Crimes

If case involves criminal activity gather information for criminal history of the area. Ask employees, managers or owner about crime in the area.

Local police or sheriff’s office usually have list of calls to a location and statistics. These statistics can then be mapped through software which make a compelling trial or mediation exhibit.

Identify what security measures the premises may have used in the past, and gather any documentation and names of potential witnesses to support those measures.

Weather

Obtain an official weather report for the area for the relevant date or time period. Governmental agencies are helpful in this regard, or a local TV meteorologist can be employed to prepare an expert report as to the conditions at the time.

Expert

An expert may be helpful to determine if building code or material deficiencies that are present that may not necessarily be apparent. Of course, this could work against your defense, but knowing the “bad” may be useful in deciding to be more aggressive in early settlement negotiations. At the same time, it could be beneficial to your defense. For example, you learn that the flooring meets or exceeds the National Standards Institute (ANSI) and the American Society of Safety Engineers (ASSE) (A1264.2-2001) slip resistant standards.
General Mississippi Law

Assignments

Generally, Mississippi law allows for the assignment of personal claims, including injury claims. Miss. Code Ann. § 11-7-3. Wrongful death claims, however, are not assignable. Coleman Powermate, Inc. v. Rheem Manufacturing Co., 880 So. 2d 329 (Miss. 2004). Only those individuals listed in the wrongful death statute can bring a wrongful death cause of action. Id.

Hospital and Medical Liens

There is no hospital or medical lien statute in Mississippi. However, a valid assignment of a person’s right to recover for medical expenses to a medical provider is enforceable.

Mississippi enacted an amendment to the Health Insurance statutes, §§ 83-9-3, and 83-9-5, to prevent any health insurance policy from containing provisions that restrict an insured from assigning benefits to a health care provider. In addition, the statute permits an insured to provide the health insurance carrier with a written directive to pay the health care provider all or a portion of the policy benefits that have been so assigned. They appear to only be applicable to health insurance policies and not automobile or other insurance policies.

In 2014 these Health Insurance statutes were amended again (§§ 83-9-3, and 83-9-5), to insert a provision requiring insurance carriers doing business in Mississippi to honor assignments for a period of 1 year from the dates of the assignment or until the insured revokes the assignment. Again, these sections apply to health insurance and do not appear applicable to automobile insurance policies.

Bad Faith

Punitive damages are available to the insured in addition to the amount of the claim in some cases when the insurance company wrongfully refuses to pay a claim. The jury may consider these damages only when the evidence has established that the insurer acted with (a) malice or (b) gross negligence or reckless disregard for the rights of others. Scott v Transport Indemnity Co., 513 So. 2d 889 (Miss. 1987). See also, Miss. Code Ann. § 11-1-65, regarding punitive damages.

If the insurer has a reasonable factual or legal basis (sometimes referred to as an arguable reason) for denying a claim, the insurer cannot be liable for bad faith in denying it. Jenkins v. Ohio Cas. Ins. Co., 794 So. 2d 228 (Miss. 2001). See also Negligent Investigation

Excess Verdicts

When a suit covered by a liability insurer is for an amount in excess of the policy limits, and an offer of settlement is made within the policy limits, the insurer has a fiduciary duty to look after the insured’s interest to the same extent as its own, and also to make a knowledgeable, honest and intelligent evaluation of the claim in consideration with its ability to do so. A failure to do this may subject the carrier to all damages, even in excess of the policy. Hartford Acc.& Indem. Co. v. Foster, 528 So. 2d 255, 265 (Miss. 1988).

Extra-contractual damages – Mistake or Clerical Errors

A carrier can be liable for certain expenses incurred by an insured even if the conduct falls short of bad faith or punitive conduct. If an insurer’s failure to pay a claim was the result of a mistake or clerical error, the insurer may be liable for extra-contractual damages caused by anxiety resulting from the delay in payment. Additional expenses including attorney’s fees which are reasonably incurred in an effort to correct the mistake may also be recovered. These kind of damages are often referred to as “Veasley damages” after the case that created the rule. Universal Life Ins. Co. v. Veasley, 610 So. 2d 290, 295-96 (Miss. 1992).

Negligent Investigation

An insurer has a duty to perform an adequate and prompt investigation of an insurance claim. The denial of a claim without the proper investigation may give rise to punitive damages. Gilbert v. Infinity Ins. Co., 769 So. 2d 266, 269 (Miss. App. 2000) (citing Bankers Life & Casualty Company v. Crenshaw, 483 So. 2d 254, 276 (Miss. 1985)).

“Obviously, some delay in evaluating claims is inevitable, legitimate and socially useful. Insurers are entitled, and in fact legally obligated to investigate fully the legitimacy of claims, and some skepticism in evaluating claims is appropriate. Since an insurer has an obligation under Mississippi law to investigate claims, discharging that duty is not bad faith. However, an inadequate investigation of a claim may create a jury question on the issue of bad faith.” Pilate v. American Federated Ins. Co., 865 So. 2d 387 (Miss. App. 2004) (quoting Jeffrey Jackson, Mississippi Insurance Law § 12:5 (2001)).

At a minimum, the insurer must determine whether the policy provision at issue has been voided by state or federal court, interview its agents and employees to see if they have knowledge relevant to the claim, and make a reasonable effort to secure all relevant medical records before denying the claim. Eichenseer v. Reserve Life Insurance Co., 682 F.Supp 1355, 1366 (N.D. Miss. 1988).

See also Delay of Payment of Claim
Delay of Payment of Claim

Although Mississippi courts are skeptical of such claims, they have permitted claimants to recover damages on bad faith claims when resolution of an insurance claim is merely delayed rather than ultimately denied. See, e.g., Travelers Indem. Co. v. Wetherbee, 368 So. 2d 829, 834–35 (Miss.1979) (affirming jury award for punitive damages where insurer withheld payment for eight months); AmFed Cos., LLC v. Jordan, 34 So.3d 1177, 1191 (Miss. App.2009) (affirming trial judge’s decision to submit punitive damages issue to the jury in a delay-of-payment case); Pilate v. Am. Federated Ins. Co., 865 So.2d 387, 400 (Miss. App.2004) (“[T]here may be cases where a delay [of payment for one month] could possibly be sufficient grounds for a bad faith claim.”); see also Essinger v. Liberty Mut. Fire Ins. Co., 529 F.3d 264, 271 n.1 (5th Cir. 2008) (citation omitted) (“Inordinate delays in processing claims and a failure to make a meaningful investigation have combined to create a jury question on bad faith.”); but see Tutor v. Ranger Ins. Co., 804 F.2d 1395, 1399 (5th Cir. 1986) (per curiam) (reversing jury’s punitive damage award where payment was delayed during an ongoing dispute between insured and insurer); Caldwell v. Alfa Ins. Co., 686 So.2d 1092, 1098 (Miss. 1996)(affirming grant of summary judgment where insurance company delayed payment for three months in complex wrongful death claim, including a six-week delay after it completed its investigation).

A recent Federal Court case in the 5th Circuit analyzed a delay in payment of an uninsured motorists claim by State Farm. The court found several 3 to 6 month periods of delay in the 3 year claims history that State Farm had no arguable or legitimate basis for. Accordingly, these gaps of unjustified delay and inactivity created a jury question of bad faith against the carrier. See James v. State Farm, 743 F.3d 65 (5th Cir. 2014).

A delay is not attributable to an insurer where the insured or his counsel refuses to cooperate or provide the necessary information. If an insured’s lawyer advises the insurer to stop its investigation pending his sending medical records, the resulting delay until the lawyer sends the records is attributable to the insured. However, as the burden is on the insurer to gather all necessary medical records, if the insurer fails to inform the lawyer of critical information necessary to further its investigation, the delay in obtaining that information is not attributable to the lawyer but to the insurer. See James v. State Farm, 743 F.3d 65 (5th Cir. 2014).
Comparative Negligence

Mississippi is a pure comparative fault jurisdiction. A claimant 99% at fault may recover 1% from a responsible party. Damages will be diminished by the jury in proportion to the amount of negligence attributable to the person injured. Miss. Code Ann. § 11-7-15. See also, Joint and Several Liability.

Consortium

Damages for loss of consortium include conjugal rights, and a broad range of services performed by the spouse, in addition to intangible mental and emotional damages. Coho Resources, Inc. v. McCarthy, 829 So. 2d 1, 20 (Miss. 2002) (citing Tribble v. Gregory, 288 So. 2d 13, 16-17 (Miss. 1974)).

In a loss of consortium action, the plaintiff’s recovery is reduced by the relative percentage of the injured spouse’s comparative negligence. Choctaw, Inc. v. Wichner, 521 So. 2d 878 (Miss. 1988).

Losses of consortium claims are not separate occurrences under the terms of an insurance policy. The claim of the injured person as well as the spouse are payable under the same “per person” limit. Crum v. Johnson, 809 So. 2d 663, 666 (Miss. 2002).

Contribution

The right of contribution exists between those held jointly liable in a judgment. A defendant will be liable for contribution to other joint defendants only for the percentage of fault assessed to him. Miss. Code Ann. § 85-5-7(4). The right of contribution exists between those held joint and severally liable due to defendants acting in concert. Miss. Code Ann. § 85-5-7(6).

Cooperation and Assistance

A breach of the cooperation clause in an insurance contract is considered a material breach if prejudicial to the defense and relieves the insurer of the duty to defend or indemnify its insured under the policy. State Farm Mut. Auto. Ins. Co. v. Commercial Union Ins. Co., 394 So. 2d 890, 893 (Miss. 1981). However, non-prejudicial misrepresentations will be considered immaterial. Id.

The insurer bears the burden of showing both attempted diligence in securing the insured’s cooperation, and failure of the insured to cooperate in a material matter. Nationwide Mut. Ins. Co. v. Tillman, 161 So. 2d 604, 616 (Miss. 1964).

The insured may also breach the cooperation clause by misrepresenting facts surrounding the accident or by collusively assuming liability for the accident. Employers Mut. Cas. Co. v. Ainsworth, 164 So. 2d 412, 418 (Miss. 1964). However, unintentional misrepresentations do not establish a breach of the duty to cooperate, especially if the insured promptly corrects the misrepresentations. Id.

Courts

Mississippi has a two-tier appellate court system, the Mississippi Supreme Court and the Mississippi Court of Appeals. Decisions of the Chancery, Circuit, and Court of Appeals may be appealed to the Supreme Court. Supreme Court: 9 judges, Court of Appeals: 10 judges. Circuit Court has a jurisdictional minimum of $200 and no maximum. Miss. Code Ann. § 9-7-81. County Court has a jurisdictional limit of $200,000. Miss. Code Ann. § 9-9-21. Justice Court has jurisdiction over small claims of $3,500 or less. Miss. Code Ann. § 9-11-9.

Damages

Caps

Mississippi has a cap on non-economic damages (i.e. pain and suffering, etc.) of $1,000,000 for all actions other than medical malpractice. Miss. Code Ann. § 11-1-60.

Medical malpractice claims have a non-economic damage cap of $500,000. Miss. Code Ann. § 11-1-60.

There are no limits to economic damages (past, present or future medicals, lost wages, etc).

There are punitive damage caps based on the defendant’s net worth, as follows:

Net Worth Cap
Over $1 Billion $20,000,000
$750 M – $1 Billion $15,000,000
$500 M – $750 M $5,000,000
$100 M – $500 M $3,750,000
$50 M – $100 M $2,500,000
$50 M or Less 2% of Net Worth

Miss. Code Ann. § 11-1-65.

Collateral Source Rule

The Collateral Source Rule is a general rule that prohibits the admission of evidence that the claimant received compensation for a source other than the damages sought against the defendant. Thus, a defendant may not show that a portion of the medical bills claimant seeks to recover have been paid by others. Eaton v. Gilliland, 537 So. 2d 405 (Miss. 1989).

However, if a claimant has assigned the right of recovery to certain payments (i.e. medical bills, insurance payments, etc.) he may not attempt to collect them or claim them as part of his damages. They are no longer his claim and the assignee “own[s] absolutely the right to recover for damages.” In other words, if a claimant has legally transferred his right to collect portions of his damages, then he can no longer claim them as damages. McDonald v. Southeastern Fidelity Insurance Co., 606 So. 2d 1061 (Miss. 1992).

Punitive Damages

The plaintiff must show by clear and convincing evidence that the defendant acted with actual malice; acted with gross negligence that shows willful, wanton, or reckless disregard for the safety of others; or committed actual fraud in order to recover punitive damages. Miss. Code Ann. § 11-1-65.

The obligation to pay punitive damages may be excluded by appropriate language in the policy. Shelter Mut. Ins. Co. v. Dale, 914 So. 2d 698 (Miss. 2005). If the policy does not exclude punitive damages, Mississippi courts have held that it is not against public policy to insure against such damages, and a policy will be held to cover them.

The United States Supreme Court has placed some additional restrictions on the size of punitive damage awards as they relate to actual damages. The Court has held that rarely will anything more than a 1:1 ratio be reasonable and almost certainly nothing more than 9 times the actual damages will be held constitutional. There are exceptions to exceptionally egregious conduct or cases with extremely minimal actual damages. State Farm Mut. Auto . Ins. Co. v. Campbell, 538 U.S. 1513, 1524 (2003).

See also Bad Faith.

Emotional Distress

The emotional distress must always be a reasonably foreseeable result of the defendant’s conduct. Adams v. U.S. Homecrafters, Inc., 744 So. 2d 736 (Miss. 1999).

Mississippi law is unclear as to whether a physical manifestation of harm is required for negligent infliction of emotional distress. The court has applied a permissive view which permits recovery solely based on evidence of mental injury and a restrictive view requiring some sort of physical manifestation or demonstrable harm. See Edmonds v. Beneficial Mississippi, Inc., 212 Fed.Appx. 334, 337-38 (5th Cir. 2007) for a discussion of Mississippi law on this topic.

What is clear is that a claimant must offer “substantial proof” of emotional harm, Ill. Cent. R.R. Co. v. Hawkins, 830 So. 2d 1162, 1174 (Miss. 2002), and the emotional injuries must be reasonably foreseeable from the defendant’s actions. Adams, 744 So. 2d at 742-43.

The Mississippi Supreme Court has held that vague complaints of sleeplessness, nightmares, worry and multiple visits to a doctor were insufficient to prove emotional harm. Ill. Cent. R.R. Co., 830 So. 2d at 1174.
Direct Action

There is no direct action allowed by third parties in Mississippi, except to contest a coverage issue. Kaplan v. Harco Nat. Ins. Co., 716 So. 2d 673, 677 (Miss. Ct. App. 1998).

Duty to Defend

The obligation of a liability insurer to defend is determined by the allegations of the complaint or declaration. Farmland Mut. Ins. Co. v. Scruggs, 866 So. 2d 714, 719 (Miss. 2004). If the allegations made against the insured bring the action within the coverage of the policy he is entitled to a defense, even though the actual facts later reveal that the claims as presented were not within coverage. Cullop v. Sphere Drake Ins. Co., 129 F. Supp 2d 981, 982 (S.D. Miss. 2001).

An insurer also has a duty to defend where a complaint fails to state a cause of action covered by the policy but the insurer is informed that the true facts are inconsistent with the complaint, or where the insurer learns from an independent investigation that the true facts present the potential liability of the insured. Farmland, 866 So. 2d at fn. 2. (citing Mavar Shrimp & Oyster Co. v. U.S. Fidelity & Guar. Co., 187 So.2d 871, 875 (Miss. 1966).

An insurer has a duty to defend only claims within coverage. An insurer that defends claims under a reservation of rights is required to permit the insured to select counsel of his choice, paid for by the carrier. Moeller v. American Guar. And Liability Ins. Co., 707 So. 2d 1062, 1069 (Miss. 1996).
Family Immunity

Inter-spousal immunity has been abolished in Mississippi. Burns v. Burns, 518 So. 2d 1205 (Miss. 1998).

Parent-unemancipated child immunity has been abolished in negligent operation of automobile cases. Smith v. Holmes, 921 So. 2d 283, 285 (Miss. 2005). Parents may maintain suits against their children and vice versa. Ales v. Ales, 650 So. 2d 482, 487 (Miss. 1995).
Frivolous Lawsuits

The court may order a party, his attorney, or both to pay the opposing party’s expenses, including attorney’s fees, if the court determines a motion or pleading is frivolous or filed in order to harass or delay. Miss. R. Civ. P. 11(b). See also, Litigation Accountability Act. Miss. Code Ann. § 11-55-5.
Homeowners’ Bill of Rights

In 2009, the Mississippi Insurance Department (MID) created a Policyholder Bill of Rights regarding personal lines homeowner insurance. All homeowner policies since 2009 have been required to include the Policyholder Bill of Rights in the issuance and delivery of the policy. The MID identified 19 rights, including the selected excerpts highlighted below:

9. Policyholders shall have the right to receive in writing from their
insurance company the reason for any cancellation or nonrenewal of coverage.
The written statement from the insurance company must provide an adequate
explanation for the cancellation or nonrenewal of coverage.

12. Policyholders shall have the right to receive a written explanation of why a
claim is denied, in whole or in part.

13. Policyholders shall have the right to request and receive from the
insurance company any adjuster reports, engineer reports, contractor reports,
statements or documents which are not legally privileged documents that the
insurance company prepared, had prepared, or used during its adjustment of the
policyholder’s claim. A company may keep confidential any documents they
prepare in conjunction with a fraud investigation.

15. Policyholders shall have the right to prevent an insurance company, agent,
adjuster or financial institution from disclosing their personal financial
information to companies or entities that are not affiliated with the insurance
company or financial institution. Insurance companies must comply with the
provisions set out in Mississippi Department of Insurance Regulation 2001-1,
“Privacy of Consumer Financial and Health Information Regulation”.

17. Policyholders shall have the right to be treated fairly and honestly when
making a claim.

Implied Coinsured

There is no restriction on the ability of a landlord’s insurer to pursue the tenant for subrogation as a result of damages paid by the insurer that were caused by the tenant. Paramount Ins. Co. v. Parker, 112 So. 2d 560 (Miss. 1959).

Indemnity

The obligation to indemnify may result from a contractual relationship, implied contractual relationship, or liability imposed by law. Hartford Cas. Ins. Co. v. Halliburton Co., 826 So. 2d 1206, 1216 (Miss. 2001).

The general rule governing implied indemnity (common law indemnity) for tort liability is that a joint tortfeasor, whose liability is secondary as opposed to primary, or is based upon imputed or passive negligence, as opposed to active negligence, may be entitled, upon an equitable consideration, to shift his responsibility to another joint tortfeasor. Strickland v. Rossini, 589 So.2d 1268, 1276 (Miss. 1991).

Insurable Interest

Mississippi follows the general rule that in order to be entitled to proceeds from an insurance policy, the purchaser of the policy must have an insurable interest in the property or life insured. See, e.g., Southeastern Fidelity Ins. Co. v. Gann, 340 So.2d 429 (Miss. 1976); National Life & Accident Ins. Co. v. Ball, 157 Miss. 163, 127 So. 268 (1930); see also Am.Jur.2d Automobile Insurance § 41 (1980). An insurable interest must exist in an insured when the contract is entered for it to be effective. Mississippi Farm Bureau Mut. Ins. Co. v. Todd, 492 So. 2d 919, 931 (Miss. 1986) (citing Gann, 340 So. 2d 429 (Miss. 1976)). Obviously, a party who holds legal title has the requisite insurable interest. However, the Mississippi Supreme Court has found an insurable interest in property even though legal title was elsewhere. All that Mississippi requires in order to have an insurable interest is that a person derive a benefit from the property’s existence or would suffer loss from its destruction. Southeastern Fidelity Ins. Co. v. Gann, 340 So.2d 429 (Miss. 1976).

Interest

There is no “legal rate of interest” in Mississippi for judgments. Miss. Code Ann. § 75-17-7 allows the recovery of both prejudgment and post-judgment interest. If there is a contractual rate of interest, the contract rate will be applied. If not, the judge is given the discretion to determine the appropriate rate of interest.

Miss. Code Ann. § 75-17-7 gives courts the discretion to award simple or compound interest. In re Guardianship of Duckett, 991 So. 2d 1165, 1182 (Miss. 2008). The Mississippi Supreme Court has held that awarding post-judgment interest at the rate of one percent above the prime rate was within the chancellor’s discretion in tort suit against as underinsured motorist carrier. U.S. Fidelity & Guar. Co. v. Estate of Francis ex rel. Francis, 825 So. 2d 38, 50 (Miss. 2002).

Subject to certain exceptions, the legal rate for “notes, accounts and contracts” is 8% per annum, calculated according to the actuarial method. Miss. Code Ann. § 75-17-1. See also § 87-7-3 (1% per month on unpaid construction contracts).

Prejudgment interest is only available if damages are fixed and liquidated. Falkner v. Stubbs, No. 2010 CT 01664 (Miss. August 22, 2013).
Joint and Several Liability

Since 2004, simple negligence actions apply only several liability. A party is only responsible for his share/percentage of apportioned fault.

Joint and several liability only exists in Mississippi when individuals knowingly pursue a common plan or design to commit a tortious act. Fellow defendants acting in concert have a right of contribution between one another. Miss. Code Ann. § 85-5-7.

All participants to the occurrence, including any absent tortfeasors, must be considered in the apportionment of fault. Estate of Hunter v. General Motors Corp, 729 So. 2d 1264, 1272-73 (Miss. 1999). See also Contribution.
Liquor Liability

Mississippi has a statute that provides immunity from liability of those who lawfully sell or supply intoxicating beverages by permit. However, this liability limitation does not extend to the holder of an alcoholic beverage permit, his agent, or employee who sells to a visibly intoxicated person. Miss. Code Ann. § 67-3-73.

Social hosts are also immune from liability for serving or furnishing alcoholic beverages to persons who may lawfully consume such beverages. Further a social host is not liable for those that consume alcohol on his premises and in his absence. These immunities do not apply if the alcohol consumption is forced by the host or he falsely represents that the beverage contains no alcohol. Miss. Code Ann. § 67-3-73.

Liens

Medicaid

Medicaid has a statutory right of recovery from the beneficiary and from third persons or entities that a beneficiary has a right to sue. Miss. Code Ann. § 43-13-125(1) and § 43-13-305. Effective 2014, the Mississippi Division of Medicaid has contracted with Health Management Systems, Inc. (HMS) to be the primary contact for all casualty recovery inquiries. Contact information: HMS Mississippi Casualty Recovery, P.O. Box 1350, Jackson, MS 39201-9820; 855-547-4984; missubro@hms.com.

New legislations effecting in July of 2015, requires that HMS receive notice of representation by an attorney of a Medicaid recipient, and if a complaint is filed of a recipient, HMS is to receive a copy. Failure to cooperate may result in a loss of benefits and/or fines.

Medicare

Federal law controls Medicare. See 42 U.S.C. § 1395y(b). Medicare claims to have a superior right of reimbursement, which may be helpful to think of as a “super lien.” This means that Medicare is not required to notify anyone of its right to reimbursement, nor is it required to make a request for reimbursement in order to enforce its right to recovery. Instead, the parties to a liability claim must notify Medicare of the claim, take action to determine the amount of the reimbursement and make payment accordingly. This includes reimbursement for past treatment as well as protection of Medicare’s interests when future treatment will be necessary. the amount of the reimbursement and
Hospital

Mississippi law allows only for a transfer of benefits for medical costs by assignment. Unlike some other states, Mississippi has no statutory provision for a “hospital’s lien,” “physician’s lien” or anything synonymous, nor does there appear to be any case law creating a medical provider’s equitable lien on insurance benefits because of medical services rendered. Memorial Hospital at Gulfport v. Guardianship of Proulx, No. 2012-CA-01714-SCT (Miss. September 12, 2013). See also Assignments.

Made Whole Rule

The “made whole rule” is a general principle that an insurer is not entitled to equitable subrogation until the insured has been fully compensated. Hare v. State, 733 So. 2d 277 (Miss. 1999); United Services Auto. Ass’n v. Stewart, 919 So. 2d 24 (Miss. 2005). This equitable right to be made whole cannot be superseded by contrary contract language. 5 MS Prac. Encyclopedia MS Law § 40:97. So far, this rule applies only to insurance carriers and not to actual healthcare providers. Memorial Hospital at Gulfport v. Guardianship of Proulx, No. 2012-CA-01714-SCT (Miss. September 12, 2013).
Minors

The age of majority in Mississippi is 21. Miss. Code Ann. § 1-3-27.

All persons 18 or older, if not otherwise disabled, have the capacity to enter into binding contractual relationships affecting personal property. Miss. Code Ann. § 93-19-13. Accordingly, this section removes the disability of minority of all persons 18 years of age or older for the purpose of entering into contracts affecting personal property, including the right to settle a claim, and accept money in the settlement of a claim. Garret v. Gay, 394 So. 2d 321, 323 (Miss. 1981).

A minor age 15 or older may contract for life, health and accident insurance. Miss. Code Ann. § 83-7-19.

Negligence

Mississippi applies the common law “rule of sevens.” A child under the age of seven is irrefutably presumed to be incapable of negligence. Children between the ages of 7 and 14 are
presumed incapable of negligence, but the presumption may be rebutted by showing that the child had elevated capacity. Children above the age of 14 are presumed to be capable of negligence. Steele v. Holiday Inn, 626 So. 2d 593 (Miss. 1993).

Minors’ Settlements

The father and mother are the joint natural guardians of their minor children and are equally charged with their care, nurture, welfare and education, and the care and management of their estates. Miss. Code Ann. § 93-13-1. Because of this, when settling a minor’s claim, both parents must petition the Court for authority to settle or one must be a petitioner and the other parent join in the petition for all relief requested. As the natural parents and guardians of their children, the mother and father can accept settlements of $25,000.00 or less before the Court without being appointed as guardian. Miss. Code Ann. § 93-13-211. When a total settlement is greater than $25,000.00, or personal property exceeding the value of that sum, a guardian is required to be appointed to accept the settlement.

A minor under guardianship is a ward of the Chancery Court. Carpenter v. Berry, 58 So. 3d 1158 (Miss. 2011). As such, it must take all necessary steps to conserve and protect the best interest of these wards of the court. Id. And all persons who deal with guardians or with the courts in respect to the rights of minors are charged with this knowledge. Id. See also Union Chevrolet Co. v. Arrington, 138 So. 593 (Miss. 1932).

It is incumbent upon a defendant, in an action seeking to settle a claim of a minor under guardianship, to assure that all of the procedures set out by the Supreme Court are followed or risk a set-aside of the settlement. Carpenter v. Berry, 58 So. 3d 1158 (Miss. 2011).

Every petition for authority to compromise and settle a minor’s claim shall set forth the facts in relation thereto and the reason for such compromise and settlement and the amount thereof. See Unif. Chanc. Ct. R. 6.10. According to the Uniform Rule, the material witnesses concerning the injury and damages shall also be produced before the Chancellor for examination. Id. Where counsel representing the minor has investigated the matter and advised settlement, he or she shall give testimony to the Court regarding the result of the investigation. Id.

It is incumbent upon those paying money to a guardian to make certain that the chancellor’s decree is faithfully executed in every respect. Joyce v. Brown, 304 So. 2d 634 (Miss. 1974).

In practice, we have found that an increasing number of chancellors are requiring the minor be represented by an attorney at the settlement hearing.

Parental Liability for Medical Expenses

Mississippi law requires parents to pay for their child’s reasonable medical expenses. This is a legal duty of both the father and the mother. The minor child is not legally responsible for these expenses. McLain v. West Side Bone and Joint Center, 656 So. 2d 119 (Miss. 1995); Lane v. Webb, 220 So. 2d 281 (Miss. 1969); Alexander v. Alexander, 494 So. 2d 365 (Miss. 1986). Haver v. Hinson, 385 So. 2d 605 (Miss. 1980). Accordingly, the medical, surgical, hospital and nursing expenses incurred by curing or relieving a minor child’s injuries are recoverable, if at all, by his parent, and not by him (unless he is emancipated). These are separate claims owned by the parents of the minor. However, if the parents bring suit on behalf of the minor “as next friend” (as provided for under the rules), the courts have held that parents waives their separate claim for such damages in favor of the child and permits all damages to be included in one case. Lane v. Webb, 220 So. 2d 281 (Miss. 1969). Double recovery for such expenses is not allowed. Cook v. Children’s Medical Group, P.A., 756 So. 2d 734 (Miss. 1999).

Misrepresentation

An insurer may cancel or void a policy from its inception and treat as if it never existed upon proof that the misrepresentation of a material fact is in the application. Casualty Reciprocal Exchange v. Wooley, 217 So. 2d 632, 635-36 (Miss. 1969).

Warranty v. Representations

A distinction is made as to whether the misrepresentations are warranties or representations. Sanford v. Federated Guaranty Ins. Co., 522 So. 2d 214, 216-18 (Miss. 1988).

The insurer only has to show that the information is literally not true in the case of a warranty because the materiality of the statement will be presumed. Colonial Life & Acc. Ins. Co. v. Cook, 374 So. 2d 1288, 1291 (Miss. 1979).

In the case of representations, the insurer must show that the information is not substantially true and was a material to the risk assumed by the insurer. National Cas. Co. v. Johnson, 67 So. 2d 865, 867 (Miss. 1953). Materiality is determined by the probable and reasonable effect which truthful answers would have on the insurer. Sanford, 522 So. 2d at 217. If the information helps determine whether or not to accept the risk then it is material. Wooley, 217 So. 2d at 635-36. Intent does not determine misrepresentation, and a policy may be voided even if there is an innocent and good faith belief the statements are true. Fidelity Mut. Life Ins. Co. v. Miazza, 46 So. 817, 819 (Miss. 1908).

The terms of the application control whether a question is a warranty or a representation. The terms must clearly indicate that the terms will be treated as warranties, and any ambiguity will favor treating the statements as representations. Sanford, 522 So. 2d at 216-17.

Negligence

Children

Mississippi applies the common law “rule of sevens.” A child under the age of seven is irrefutably deemed to be incapable of negligence. Children between the ages of 7 and 14 are presumed to be incapable of negligence, but the presumption may be rebutted by showing that the child had elevated capacity. Children above the age of 14 are presumed to be capable of negligence. Steele v. Holiday Inn, 626 So. 2d 593 (Miss. 1993).

Statutory Standards of Care

Negligence per se, or a presumption of negligence, is the general rule in Mississippi if the plaintiff was in the class that the statute was designed to protect and the harm was of the type that the statute was designed to prevent. See Byrd v. McGill, 478 So. 2d 302 (Miss. 1985).

Notice

The duty to defend presupposes the duty to notify the insurer of any proceedings instituted against them. Without notice the insurer cannot be expected to provide a defense. Mimmitt v. Allstate County Mut. Ins. Co., Inc., 928 So. 2d 203, 207 (Miss. Ct. App. 2006).
Parental Liability

Parents may be found liable for property damage up to $5,000 caused by the willful or malicious acts of their minor children between age 10 and 18. Miss. Code Ann. § 93-13-2.

Parents have a duty to take reasonable measures to supervise their children in order to protect others from acts of their children which are reasonably foreseeable. Williamson v. Daniel, 748 So. 2d 754, 759 (Miss. 1999).

There is joint and severally liability for the willful or negligent acts of a minor under 17 while operating motor vehicle between minor and person who signed application for license or permit. M.C.A. § 63-1-25.

Primary/Excess Issues

There is no statute in Mississippi governing “other insurance” provisions, other than a provision which states that “any motor vehicle liability policy may provide for the prorating of the insurance thereunder with other valid and collectible insurance.” See Miss. Code Ann. 63-15-43(9). There is no case law that has invalidated “excess” policy provisions as contrary to public policy or based on the statute mentioned.

Nevertheless, there are some situations that will arise that will create a conflict between a carrier’s attempt at designating its policy as excess, and the “other” insurance company’s attempts to do the same. Under Mississippi case law, when two (or more) policies present competing ‘other insurance clauses’ (such that, if both literally read, would leave no primary coverage), the courts will disregard both provisions, and deem the policy for the accident vehicle as the primary. Travelers Indemnity Company v. Chappell, 246 So. 2d 498 (Miss.1971); USF&G v. John Deere Insurance Co., 830 So. 2d 1145 (Miss. 2002).

In other words, when two ‘other insurance’ clauses conflict such that neither insurer purports to carry the primary policy of coverage, the two ‘other insurance’ clauses cancel each other out. This common law invention is known as “The Rule of Repugnancy.” Once the rule is applied, “the policy of the owner of the vehicle involved in the accident is ordinarily considered to be the ‘primary policy.’” Chappell, at 505.

Where there are two conflicting ‘other insurance’ clauses, a carrier still should examine the language of the policies to see if in fact they conflict. As it stands right now, however, this basic rule of contract construction comes with a caveat in Mississippi, for even where the policies do not conflict, the appellate courts have shown a tendency to apply the “primary” rule anyway. As a result, it is becoming more and more “universal” (as one Mississippi opinion put it) to make the “primary” insurer the one with coverage of the automobile involved, conceivably in the face of policy language to the contrary. Recently, the Mississippi Supreme Court summarily held “[t]he long-standing law in Mississippi is that the insurance policy issued to the owner of the vehicle is the primary policy . . . .” See Guidant Mut. Ins. Co. v. Indemnity Ins. Co. of North America, 13 So. 3d 1270 (Miss. 2009). That “primary” insurer will be required to exhaust the limits of the policy before the other, excess policy will be invoked. Assuming a court can be reminded to look at the policy language first, in a case in which the other policy announces itself to be the primary policy or provides that coverage is to be pro rated between the insurers, the company’s excess provision would not be in conflict, and would in fact be excess.

A similar issue arises when insurance carriers dispute which company will be able to take the offset of other available insurance (such as the tortfeasor’s liability policy). The only Mississippi case to have addressed the question of priority of a set-off is Dixie Insurance Company v. State Farm Mut. Auto. Ins. Co., 614 So.2d 918 (Miss. 1992). In Dixie, the court appeared to create the rule that the primary carrier is entitled to the offset. The court stated, “[t]he trial court correctly held that the primary insurer was entitled to offset first.” Id. See also Strickland v. Hill, 2002 WL 31654961(E.D. La.) (unpublished opinion) (noting that the offset doctrine “appears to be tailored based on the ranking of insurance companies”). However, this “rule” may be an overstatement of Mississippi law as the court strayed from policy interpretation in this decision and the announcement of this rule was unnecessary.
Releases

In order to obtain a valid and binding release, certain situations call for court or other government agency approval:

1) Minors (under 18) – need Chancery Court approval
2) Incompetent Adults – need Chancery Court approval
3) Estates/Wrongful Death Claims – need Chancery or Circuit Court approval
– optional method for Estates less than $50,000 via affidavit by heir (§ 91-7-322)
4) Workers Compensation claimants – need Circuit Court or Workers Comp
Commission approval for liability payments, however, UM payments are exempt.

Spoliation of Evidence

Spoliation of evidence is not an independent cause of action in Mississippi. Richardson v. Sara Lee Corp., 847 So. 2d 821, 824 (Miss. 2003).

Mississippi case law holds that the destruction of evidence results in a negative presumption or inference against the party who destroys the evidence. Thomas v. Isle of Capri Casino, 781 So.2d 125, 133-34 (Miss. 2001). The Mississippi Supreme Court has held that where a (medical) record required by law to be kept is unavailable due to negligence, an inference arises that the record contained information unfavorable to the defendant, and the jury should be so instructed. Delaughter v. Lawrence County Hosp., 601 So.2d 818, 822 (Miss. 1992). See also, Estate of Perry ex rel. Rayburn v. Mariner Health Care, Inc., 927 So.2d 762 (Miss.Ct.App. 2006).

Statutes of Limitation

Negligence

Most negligence actions are governed by a 3 year statutes of limitations which runs from date of accident/injury. Miss. Code Ann. § 15-1-49.

The statute provides for a “discovery rule” but only for latent injuries and diseases. If a person has such a latent injury or disease, then the statute does not start to run until the person discovers, or by reasonable diligence, should have discovered, the injury. Miss. Code Ann. § 15-1-49 (2).

Tolling/Agreement

The Mississippi Supreme Court recently ruled that statute of limitations cannot be lengthened by agreement. This prohibition against tolling agreements applies to any statute of limitations in Chapter 15, but not to limitations in other chapters of the code. However, the courts will look to determine whether a party is equitably estopped from asserting the statute of limitations under the circumstances. Miss. Code Ann. § 15-1-5. Townes v. Rusty Ellis Builder, Inc., No. 2011-CA-164-SCT (Miss. October 4, 2012).

Continued promises of payment can create a situation where the court will find that a carrier waived the statute. See Douglas v. Parker Elec. v. Mississippi Design and Devel. Corp., 949 So.2d 874 (Miss. 2007). However, simply continuing to negotiate has been held insufficient to toll or waive statute.

Intentional Torts

Many intentional torts, including intentional infliction of emotional distress, are governed by a 1-year statute of limitations. Miss. Code Ann. § 15-1-35.

Minors

Statute does not start running on minors until they turn 21 (even if they are emancipated), then it starts to run for the applicable statute of limitations for that injury. Miss. Code Ann. § 15-1-59.

Wrongful Death

Statute runs from underlying event that caused injury. The statute applicable to the particular injury controls (i.e. medical malpractice claims have 2 years from injury, intentional torts have 1 year from injury, general negligence claims have 3 years from injury). This is a change in the law since 2006. See Jenkins v. Pensacola Health Trust, Inc., 933 So. 2d 923 (Miss. 2006) (previous law applied a 3-year statute from the date of death).

The wrongful death statute, Miss. Code Ann. 11-7-13, encompasses both survival claims and wrongful death claims. The Mississippi Supreme Court has recently clarified the confusion in this area and held that the statute begins to run from the underlying tort that caused the death in a survival claim; however, the statute begins to run from the time of death in a wrongful death claim. Caves v. Yarbrough, M.D., 991 So. 2d 142, 149-50 (Miss. 2008).

Survival claims are claims in which if death had not ensued, the injured party could have maintained an action and recovered damages. A true wrongful death claim belongs solely to the decedent’s beneficiaries and is a claim brought to recover damages one person’s death causes to another (i.e. loss of love, society and companionship). Id. at 149. See also, Wrongful Death.

Subrogation

Mississippi has adopted the “made whole” rule in that the insurer is not entitled to subrogation until the insured has been completely compensated. The made whole rule cannot be overridden by contractual language. Hare v. State, 733 So. 2d 277, 284 (Miss. 1999).

Vicarious Liability

An employer is vicariously liable for intentional torts committed in the course and scope of employment, or for those it authorized, or for those it ratified. Jones v. B.L. Development Corp., 940 So.2d 961 (Miss. Ct. App. 2006).
EXAMPLE:

Kerri Parmenter and her cousin, Dana Churchill, ordered food at the drive-thru window of McDonald’s in Holly Springs, Mississippi. Because their order was taking longer than they expected, Parmenter and Churchill entered the establishment to inquire about the status of their food. At some point, a verbal altercation occurred in the lobby between Parmenter and Kesha Jones, a cashier. After this verbal altercation occurred, Jones left the lobby and returned to the kitchen, where she retrieved a spatula. Jones then returned to the lobby and proceeded to beat Parmenter with the spatula. Parmenter v. J & B Enterprises, Inc., 99 So. 3d 207, 210 (Miss. Ct. App. 2012)

In affirming summary judgment the court noted that Byrd Management, Inc. is a franchise of the McDonald’s Corp. And that McDonald’s has no right to hire or fire; to direct the franchise how to conduct its day-to-day business; to direct the hours the employees work; to direct who should be or should not be hired; to prescribed the details of the kind and character of the work to be completed by the individual employees, nor to direct the details of the manner in which the day-to-day work of each employee was completed. Id. at 211-12. In short, McDonald’s had no control over Jones and thus could not be variously liable for her actions.

To determine control, the courts use the following non-exclusive list for determining whether a party is a master of another:

(1) Whether the principal master has the power to terminate the contract at will;

(2) whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment;

(3) whether he furnishes the means and appliances for the work;

(4) whether he has control of the premises;

(5) whether he furnishes the material upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output;

(6) whether he has the right to prescribe and furnish the details of the kind and character of work to be done;

(7) whether he has the right to supervise and inspect the work during the course of the employment;

(8) whether he has the right to direct the details of the manner in which the work is to be done;

(9) whether he has the right to employ and discharge the sub-employees and to fix their compensation; and

(10) whether he is obliged to pay the wages of said employees.

Allen v. Choice Hotels Int’l, 942 So.2d 817, 821 (¶ 6) (Miss.Ct.App.2006)(quoting Kisner v. Jackson, 159 Miss. 424, 428–29, 132 So. 90, 91 (1931)).
Parmenter v. J & B Enterprises, Inc., 99 So. 3d 207, 214 (Miss. Ct. App. 2012)
Wrongful Death

Brought by a beneficiary or personal representative, the following damages can be recovered in a wrongful death action: expenses of last illness, any conscious pain and suffering of the deceased, funeral expenses, the present net cash value of the deceased’s work life expectancy (i.e. the total earnings the deceased would have realized throughout his lifetime, based on the average life expectancy) reduced to the present value and further reduced by the amount which the decedent would have spent on himself, and loss of society and companionship of the deceased (does not include ‘grief’). Miss. Code Ann. § 11-7-13.

 

 

 

 

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Caution:

The information contained in publication is for general guidance on matters of interest only. The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report. Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services. As such, it should not be used as a substitute for consultation with legal or other competent advisers. Before making any decision or taking any action, particularly before denying any first-party claims, you should consult with your in-house counsel or the attorneys at Holcomb Dunbar.

Dunbar and Watts Included in The Best Lawyers in America

Mike Watts

Mike Watts

Jack Dunbar

Jack Dunbar

Holcomb Dunbar attorneys Jack Dunbar and Mike Watts were recently selected for inclusion in The Best Lawyers in America®.

Selection for Best Lawyers is based on an exhaustive peer-review survey of over 4 million confidential evaluations by the top attorneys in the country. The Best Lawyers® publication has been described by The American Lawyer as “the most respected referral list of attorneys in practice.”

Dunbar was recognized in the areas of Arbitration, Litigation and Personal Injury Litigation- Defendants. This marks the 33rd consecutive year for Dunbar’s selection. Dunbar is a past president of the Mississippi Bar Association and was a member of the American Bar Association’s (ABA) Board of Governors from 1994 to 1997, serving as a member of the Board’s Executive Committee in 1997. He also served as a member of the ABA’s House of Delegates. Dunbar is the 2010 recipient of Mississippi Bar Foundation’s 2010 Professionalism, A/V rated by Martindale Hubbell, a Fellow of both the Mississippi and American Bar Associations.

Watts was recognized in the area of Insurance Law. Watts served on the Mississippi Board of Bar Commissions for 1995 to 1998, is A/V rated by Martindale Hubbell, and a Fellow of the Mississippi Bar Association.

Holcomb Dunbar is an Oxford, MS law firm representing local, regional, and national clients. The firm specializes in litigation, including insurance defense, product liability, medical malpractice, complex bankruptcies, and white collar crime. Holcomb Dunbar is the Mississippi member of TAGLaw, an invitation-only network of 140 law firms located in more than 100 countries and has earned recognition as a “Go-To” law firm in the area of litigation from Corporate Counsel magazine. The current firm was organized in 1970, but traces its roots to 1885 through its predecessor firms. For more information, visit www.holcombdunbar.com.

Holcomb Dunbar Attorney Interviewed on Mississippi Public Broadcasting.

Jonathan MastersListen to Holcomb Dunbar attorney, Jonathan Masters interviewed in a Q&A on Mississippi Public Broadcasting show, In Legal Terms.

United States Fifth Circuit Appeals Court Win for Holcomb Dunbar Client

Holcomb Dunbar AttorneysUnited States Court of Appeals for the Fifth Circuit affirms a case in favor of Holcomb Dunbar client.  Congrats to Jack Dunbar and Russ McNees for successfully arguing this matter.

Here, a full copy of the opinion.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

FILED

August 4, 2015

Lyle W. Cayce Clerk

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 3:14-CV-105

Before DAVIS, CLEMENT, and COSTA, Circuit Judges. PER CURIAM:*

Plaintiffs-appellants Elizabeth Fortune and Bob Fortune (collectively, “the Fortunes”) appeal the district court’s denial of their Rule 59(e) motion to alter judgment. For the reasons explained below, we AFFIRM. We also DENY defendant-appellee Taylor Fortune Group, L.L.C.’s (“Fortune Louisiana’s”) motion for sanctions.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

FACTS AND PROCEEDINGS

In 2006 the Fortunes sold their business, Fortune Equipment, to their son, Chris Fortune (“Chris”), for $771,690. Chris signed a promissory note, providing that he would repay that amount in ninety-six monthly installments. Chris purchased the company under the name Fortune Equipment Company of Nashville, Inc. (“Fortune Tennessee”). In 2009 Chris negotiated the sale of Fortune Tennessee to Fortune Louisiana.1 The Fortunes, Chris, and Fortune Louisiana’s owners (“the Owners”) met in Metairie, Louisiana to finalize the sale and to discuss Chris’s outstanding debt to the Fortunes. At the time, Chris still owed the Fortunes about $525,000. The Fortunes allege that Chris and Fortune Louisiana reached an oral agreement for Fortune Louisiana to pay the Fortunes a percentage of Fortune Louisiana’s sales proceeds from a sales region encompassing Tennessee and northern Mississippi until Chris’s remaining debt was satisfied. Fortune Louisiana made payments to the Fortunes from 2010 until 2012 totaling between $75,000.00 and $100,000.00. Fortunes Louisiana stopped payments after this time.

The Fortunes brought suit as third-party beneficiaries for breach of the alleged oral contract between Chris and Fortune Louisiana.2 Fortune Louisiana filed a motion to dismiss under Federal Rule of Civil Procedure

2 The original complaint failed to satisfy the requirements for pleading diversity jurisdiction, stating only that Fortune Louisiana was a Louisiana Corporation with its principle place of business in Metairie, Louisiana, and that the Fortunes resided in Olive Branch, Mississippi. The district court issued a sua sponte order requiring the Fortunes to file an amended complaint that properly alleged the citizenship of each of Fortune Louisiana’s members. The Fortunes amended their complaint, the district court found that diversity jurisdiction existed, and the suit continued. On appeal, we noted sua sponte that the Fortunes had not properly alleged their own citizenship, alleging only their residency. Finding that the record disclosed a substantial likelihood that diversity jurisdiction existed, we granted the Fortunes’ motion to amend their complaint to properly allege their citizenship.

FN 1 -Another of the Fortunes’ sons founded Fortune Louisiana. He sold it to the present owners before the events underlying this lawsuit took place.

FN2 – 12(b)(6), contending that Louisiana law governed the dispute and that under Louisiana law, the Fortunes had no legal claim. The district court applied Mississippi choice-of-law rules and agreed with Fortune Louisiana. Because the Fortunes did not have a valid claim under Louisiana law, the district court granted Fortune Louisiana’s motion. The district court allowed the Fortunes to file an amended complaint. The Fortunes re-alleged the breach of contract claim in their amended complaint.3 The district dismissed the breach of contract claim in the amended complaint for the same reasons as before. The Fortunes then filed a Rule 59(e) motion to alter judgment, alleging that the district court failed to explain why Louisiana law applied, and that the court erred in refusing to apply Mississippi law. The district court denied the Rule 59(e) motion. The Fortunes appeal from the denial of that motion.

STANDARD OF REVIEW

We review a district court’s dismissal of a claim under Rule 12(b)(6) de novo. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).4 “To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

DISCUSSION

I.

We consider whether the district court erred when it held that Louisiana law governs this dispute.

3 They also asserted a claim for detrimental reliance. The district court dismissed that claim. The Fortunes have not appealed that aspect of the district court’s ruling.

4 Because it makes no difference to the outcome of this appeal, we proceed as if the Fortunes appealed from the district court’s order dismissing their complaint under Rule 12(b)(6). See N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 884 (5th Cir. 1998) (“A mistake in designating orders to be appealed does not bar review if the intent to appeal a particular judgment can be fairly inferred and if the appellee is not prejudiced or misled by the mistake.”).

District courts sitting in diversity apply the choice-of-law rules of the forum statehere, Mississippito determine which state’s substantive law should apply. Ellis v. Trustmark Builders, Inc., 625 F.3d 222, 225 (5th Cir. 2010). “Mississippi’s choice-of-law test consists of three steps: “(1) determine whether the laws at issue are substantive or procedural; (2) if substantive, classify the laws as either tort, property, or contract; and (3) look to the relevant section of the Restatement (Second) of Conflict of Laws.” Id. at 225-26 (quoting Hartford Underwriters Ins. Co. v. Found. Health Servs., 524 F.3d 588, 593 (5th Cir. 2008)). The laws at issue here are substantive and contractual in nature. Section 188 is the relevant section of the Restatement (Second) of Conflict Laws. Section 188 provides that courts should consider specified contacts when determining which state’s laws apply, including: “(a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and place of business of the parties.” Restatement (Second) of Conflict of Laws § 188(2) (1971). “The Mississippi Supreme Court has not applied this test in a mathematical or mechanical fashion, and uses the factors as a ‘practical’ way to determine the center of gravity of a contract issue.” Hartford Underwriters, 524 F.3d at 595 (quoting Zurich Am. Ins. Co. v. Goodwin, 920 So. 2d 427, 435 (Miss. 2006)).

Applying Mississippi’s choice-of-law rules, we agree with the district court that Louisiana substantive law applies here. The alleged oral agreement was negotiated and consummated in Louisiana. Any performance would also take place in Louisiana because Fortune Louisiana would pay the alleged obligation from its offices in that state. Though the Fortunes, who are Mississippi citizens, allege that they are third-party beneficiaries of the alleged oral contract, neither of the actual parties to the contract is a citizen of that state. And the alleged oral contract involved the sale of a Tennessee company’s assets to a Louisiana company. At most, some of the sales revenue generated in northern Mississippi would have been paid to the Fortunes. This activity is not sufficient to make Mississippi law controlling.

The Fortunes admitted before the district court that, if Louisiana law applied, the Louisiana statute of frauds would presumptively bar their breach of contract claim. See Fortune v. Taylor Fortune Grp., LLC, No. 3:14-CV-105-

JMV, 2014 WL 4914393, at *3 (N.D. Miss. Sept. 30, 2014). Because the Fortunes failed to allege sufficient facts to support a plausible inference that Fortune Louisiana waived their statute of frauds defense, we hold that the Fortunes’ breach of contract claim is barred by the Louisiana statute of frauds. See La. Civ. Code art. 1821.

II.
We next consider Fortune Louisiana’s motion for sanctions.

“[F]ederal courts possess inherent power to assess attorney’s fees and litigation costs when the losing party has ‘acted in bad faith, vexatiously, wantonly or for oppressive reasons.’” Batson v. Neal Spelce Assocs., Inc., 805 F.2d 546, 550 (5th Cir. 1986) (quoting F.D. Rich Co. v. United States ex rel. Indus. Lumber, 417 U.S. 116, 129 (1974)). “The essential element in triggering the award of fees is . . . the existence of ‘bad faith’ on the part of the unsuccessful litigant.” Id. (quoting Hall v. Cole, 412 U.S. 1, 6 (1973)). “The standards for bad faith are necessarily stringent,” and “[a] party should not be penalized for maintaining an aggressive litigation posture.” Id.

While we agree that the Fortunes’ choice-of-law argument lacks merit, it is not so frivolous as to suggest the presence of bad faith. Accordingly, we deny Fortune Louisiana’s motion for sanctions.

CONCLUSION

For the reasons explained, we AFFIRM the district court’s order dismissing the Fortunes’ amended complaint under Rule 12(b)(6) and DENY Fortune Louisiana’s motion for sanctions.

Brad Best Named Fellow of the American Bar Foundation

Brad BestBrad Best Named Fellow of the American Bar Foundation

Brad Best, managing partner of Holcomb Dunbar, Attorneys, was elected as a Fellow of the American Bar Foundation. The Fellows is an honorary organization of attorneys, judges, law faculty, and legal scholars who have been elected by their peers to become members of The Fellows. They have demonstrated outstanding achievements and dedication to the welfare of their communities and to the highest principles of the legal profession.

Established in 1955, the Fellows support the research of the American Bar Foundation. Membership in the Fellows is limited to one percent of lawyers licensed to practice in each jurisdiction. Members are nominated by Fellows in their jurisdiction and elected by the Board of the American Bar Foundation.

Mr. Best is recognized as a leading insurance and general litigation attorney in Mississippi and recently recognized as the “Civil Trial Attorney of the Year in Mississippi” by Corporate INTL magazine.

About Holcomb Dunbar:

Holcomb Dunbar is a full service law firm offering services in litigation, 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 over a 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, criminal defense, complex litigation, real estate transactions, contract, mass-tort defense, mediation, debtor-creditor matters, and divorce.

For more information, explore our web site.

Happy 4th of July

Happy Fourth of JulyHappy 4th of July from Holcomb Dunbar !

IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.
Georgia:
Button Gwinnett
Lyman Hall
George Walton
North Carolina:
William Hooper
Joseph Hewes
John Penn

South Carolina:
Edward Rutledge
Thomas Heyward, Jr.
Thomas Lynch, Jr.
Arthur Middleton
Massachusetts:
John Hancock

Maryland:
Samuel Chase
William Paca
Thomas Stone
Charles Carroll of Carrollton

Virginia:
George Wythe
Richard Henry Lee
Thomas Jefferson
Benjamin Harrison
Thomas Nelson, Jr.
Francis Lightfoot Lee
Carter Braxton
Pennsylvania:
Robert Morris
Benjamin Rush
Benjamin Franklin
John Morton
George Clymer
James Smith
George Taylor
James Wilson
George Ross

Delaware:
Caesar Rodney
George Read
Thomas McKean
New York:
William Floyd
Philip Livingston
Francis Lewis
Lewis Morris

New Jersey:
Richard Stockton
John Witherspoon
Francis Hopkinson
John Hart
Abraham Clark
New Hampshire:
Josiah Bartlett
William Whipple
Massachusetts:
Samuel Adams
John Adams
Robert Treat Paine
Elbridge Gerry
Rhode Island:
Stephen Hopkins
William Ellery
Connecticut:
Roger Sherman
Samuel Huntington
William Williams
Oliver Wolcott
New Hampshire:
Matthew Thornton

No Texting and Driving in Mississippi Starts Tomorrow

texting-while-driving-mississippiBy Geoffrey Calderaro

Mississippi is now the 45th state to ban texting while driving. Tomorrow marks the official effective date of the new law which prohibits drivers from the writing, sending or reading of a text, email or message or 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 criminalize this behavior, instead treating it as a civil violation, imposing a $25 fine during its inaugural year, then a $100 after July 1, 2016. There is a sunset provision for the law in 2018.

However, the law does provide for 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.

Interestingly, the law does not appear to directly prohibit surfing the web or otherwise using your mobile device while driving. It prohibits only writing, sending or reading of a text, email or message or accessing a social networking site from their hand-held device.

Here’s the full language of the new law:

AN ACT TO PROHIBIT ANY PERSON FROM OPERATING A MOTOR VEHICLE ON A HIGHWAY WHILE USING A HAND-HELD WIRELESS COMMUNICATION DEVICE; TO PROVIDE THAT A VIOLATION IS A CIVIL VIOLATION WITH A CIVIL PENALTY; TO REPEAL SECTION 63-1-73, MISSISSIPPI CODE OF 1972, WHICH PROHIBITS TEXTING WHILE DRIVING UNDER CERTAIN LICENSES; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  (1)  For purposes of this section, the following terms shall have the meanings ascribed in this subsection, unless the context clearly indicates otherwise:

(a)  “Hand-held mobile telephone” means a mobile telephone or other portable electronic communication device with which a user engages in a call or writes, sends or reads a text message using at least one hand.  The term “hand-held mobile telephone” shall not include a voice-operated or hands-free device;

(b)  “Motor vehicle” means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public highways;

(c)  “Social networking site” means any web-based service that allows individuals to construct a profile within a founded system, articulate a list of other users with whom they share a connection, and communicate with other users of the site;

(d)  “Text message” includes a text-based message, instant message, electronic message, and email, but shall not include an emergency, traffic or weather alert or a message related to the operation or navigation of the motor vehicle;

(e)  “Voice operated or hands-free device” means a device that allows the user to write, send, or read a text message without the use of either hand except to activate, deactivate, or initiate a feature or function; and

(f)  “Writing,” “sending” and “reading,” with respect to a text message, means the manual entry, sending, or retrieval of a text message, respectively, to communicate with any person or device.

(2)  An operator of a moving motor vehicle is prohibited from writing, sending, or reading a text message and from accessing, reading or posting to a social networking site using a hand-held mobile telephone while driving said motor vehicle.

(3)  A violation of this section is a civil violation, and upon being found in violation, is punishable by a civil penalty of Twenty-five Dollars ($25.00) for violations committed until July 1, 2016, and One Hundred Dollars ($100.00) for violations committed from and after July 1, 2016.  No state assessments shall be imposed or collected for a violation under this section.

(4)  The Department of Public Safety shall keep and maintain records of citations issued under this statute, including the age and race of the vehicle operator, whether there was an additional traffic violation by the vehicle operator, and whether there was a crash or any damage to a vehicle or passenger at the time of the citation.

(5)  This section shall stand repealed on July 1, 2018.

     SECTION 2.  Section 63-1-73, Mississippi Code of 1972, which prohibits texting while driving under certain licenses, is repealed.

     SECTION 3.  This act shall take effect and be in force from and after July 1, 2015.

 

 

 

 

Mississippi DUI Law Update

Geoffrey F. Calderaro

By Geoffrey Calderaro

On May 26, 2015 the Mississippi Court of Appeals affirmed the conviction of Kimberly Sellers. Ms. Sellers was convicted of first-offense DUI after she was stopped at a driver’s license checkpoint in Starkville. An Intoxilizer test revealed her blood-alcohol content to be .088, in excess of the legal limit.

On appeal, Ms. Sellers argued that the Oktibbeha County Circuit Court erred in failing to suppress evidence stemming from the stop, because the officer who screened Sellers at the checkpoint did not testify at trial.

The Court of Appeals found that the issue on appeal was waived, but even if it had not been, there was sufficient evidence for the circuit court to have found the extended detention was justified by reasonable suspicion. The Court’s decision discussed three issues: 1) suppression of evidence stemming from the stop; 2) cause to order the breath test; and 3) the sufficiency of the evidence.

First, the Court addressed Sellers’ allegation that the apparent diversion and extended detention of her vehicle for further examination was improper. However, the Court’s analysis of the issue was complicated by Sellers’ failure to properly raise the issue in the trial court. The Court held that despite Sellers’ failure to preserve the issue, her argument that extending her detention required probable cause was without merit. Instead, since it was an investigatory stop, only a reasonable articulable suspicion that the person has committed or is about to commit a crime was required.

Next, the Court addressed Sellers’ argument that the officers lacked sufficient cause to demand that she submit to a breath test, which was ultimately administered and produced an incriminating result. The Court relied upon the evidence that the DUI officer testified that he smelled alcohol and Sellers took and failed three field sobriety tests. The Court found the trial court did not err.

Finally, the Court of Appeals addressed Sellers’ argument that the evidence was insufficient to support her conviction, based on the testimony of her expert. The expert argued that Sellers was not intoxicated based on “retrograde extrapolation.” The trial court rejected the “retrograde extrapolation” defense since the expert did not independently verify the underlying data upon which he based his opinion.

Full Opinion Below:

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-KM-00432-COA

KIMBERLY C. SELLERS A/K/A KIMBERLY CHENILLE SELLERS

v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
CITY ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:

DISPOSITION:
MOTION FOR REHEARING FILED: MANDATE ISSUED:

APPELLANT

APPELLEE

04/22/2013
HON. LEE J. HOWARD
OKTIBBEHA COUNTY CIRCUIT COURT CHARLES BRUCE BROWN
CAROLINE MOORE
ROY E. CARPENTER JR.
CRIMINAL – MISDEMEANOR CONVICTED OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCED TO PAY A FINE OF $600 AFFIRMED: 05/26/2015

BEFORE IRVING, P.J., BARNES AND FAIR, JJ.

FAIR, J., FOR THE COURT:

¶1. Kimberly Sellers was convicted of first-offense DUI after she was stopped at a driver’s license checkpoint in Starkville. A subsequent Intoxilizer test revealed her blood- alcohol content to be .088, in excess of the legal limit. On appeal, Sellers argues that the circuit court erred in failing to suppress any evidence stemming from the stop, because the officer who screened Sellers at the checkpoint did not testify at trial. We find that this issue was waived, but even if it was not, there was sufficient evidence for the court to have found extended detention was justified by reasonable suspicion.

DISCUSSION
1. Suppression of Evidence Stemming from Stop

¶2. Sellers does not challenge the initial stop at the safety checkpoint, but, rather, the apparent diversion and extended detention of her vehicle for further examination. Our analysis of this issue is complicated by Sellers’s failure to properly raise it in the trial court. Sellers did not move to suppress the evidence stemming from the stop prior to trial. When the prosecution presented its primary witness, the DUI officer to whom Sellers had apparently been directed by an initial screening officer, Sellers objected on the basis that there was no “probable cause” to stop her vehicle. The objection was overruled. Sellers’s attorney never asked for a suppression hearing, and he only ever said the word “suppress” when arguing for a directed verdict after the prosecution had presented its entire case.

¶3. Sellers erroneously contended (and, indeed, continues to argue) that extending her detention required probable cause. Instead, an investigatory stop requires only reasonable, articulable suspicion that the person has committed or is about to commit a crime. Eaddy v. State, 63 So. 3d 1209, 1213-14 (¶¶13-16) (Miss. 2011). It is well established that “[o]objection on one ground at trial waives all other grounds for objection on appeal.” Carter v. State, 722 So. 2d 1258, 1261 (¶13) (Miss. 1998) (citation omitted). Sellers waived this issue by failing to present a coherent, timely motion to suppress.

¶4. Also, because Sellers failed to move to suppress the evidence, there was no suppression hearing, and the exact circumstances surrounding the stop were not thoroughly explored at trial. It does appear that Sellers was subjected to a lengthier detention than others at the checkpoint, prior to the second officer obtaining reasonable suspicion to hold her, but this was never directly shown.

¶5. Notwithstanding Sellers’s failure to preserve the issue, her argument appears to be without merit. Whether reasonable suspicion exists is reviewed de novo, but the factual determinations that underlay that question are subject to the more deferential substantial evidence standard. Eaddy, 63 So. 3d at 1212 (¶11). The DUI officer testified that he immediately noticed the smell of an intoxicating beverage that was “emitting” from the vehicle, and that Sellers was wearing a paper bracelet like the ones required by local establishments that serve alcohol. The odor of an alcoholic beverage is sufficient to establish reasonable suspicion for an investigatory stop. Watts v. State, 78 So. 3d 901, 904 (¶13) (Miss. 2012). These things were in plain sight (or smell, as it were), and the circuit court could have reasonably inferred that the first officer had also observed them moments before, giving him reasonable suspicion to detain Sellers for further investigation.

¶6. We conclude that the issue of the legality of the extended detention, assuming it occurred, was not properly preserved in the trial court. In the alternative, it appears to be without merit.

2. Cause to Order Breath Test

¶7. Sellers next argues that officers lacked sufficient cause to demand that she submit to a breath test, which was ultimately administered and produced an incriminating result. The DUI officer testified that, in addition to smelling of alcohol, Sellers took and failed three field sobriety tests: Sellers demonstrated six of six clues on the horizontal gaze nystagmus test, four of eight clues on the walk-and-turn test, and two of four clues on the one-leg-stand test. Sellers attacks the way the tests were administered, the officers’ recollection of one of the clues, and the like; but she presents only a single authority in support of her argument: Holmes v. State, 740 So. 2d 952 (Miss. Ct. App. 1999), which she erroneously argues entirely prohibits the use of horizontal gaze nystagmus test. This Court actually stated: “[T]he HGN test can still be used to prove probable cause to arrest and administer the intoxilizer or blood test.” Id. at 956 (¶10) (quoting Young v. City of Brookhaven, 693 So. 2d 1355, 1360-61 (Miss. 1997)).

¶8. As Sellers has failed to support her other arguments with authority, the remaining contentions have been waived. Corrothers v. State, 148 So. 3d 278, 323 (¶130) (Miss. 2014).

3. Sufficiency of the Evidence

¶9. Finally, Sellers (apparently) contends that the evidence was insufficient to support her conviction, based on the testimony of her expert that she had not been intoxicated at the time she was driving. The expert employed “retrograde extrapolation” to explain that Sellers’s blood-alcohol level had increased after she was stopped.

¶10. This issue has also been waived because it is entirely unsupported by authority. Corrothers, 148 So. 3d at 323 (¶130).

¶11. In the alternative, the circuit court, acting as the finder of fact, had “the prerogative to accept or reject, in whole or part, the testimony of any witness, expert or lay.” Smith v. State, 925 So. 2d 825, 839 (¶33) (Miss. 2006). It could have rejected the expert’s opinion for any number of reasons; but the most obvious would be the expert’s admission that he reached his conclusion based on data provided to him by Sellers’s attorney, and that he did not know its source. The expert did not independently verify the underlying data (i.e., how much alcohol Sellers consumed and when, how much she weighed, etc.), nor were these facts established by irrefutable proof at trial.

¶12. The circuit court did not err in rejecting the retrograde extrapolation defense. This issue was waived and, in the alternative, is without merit.

¶13. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF CONVICTION OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND FINE OF $600 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND JAMES, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.

Expungement Update

Expungement Update

Geoffrey F. CalderaroBy: Geoffrey Calderero
Last week, the Mississippi Supreme Court handed down its decision in Stallworth v. The State of Mississippi, holding that a person convicted of a sexual assault, that has had that conviction expunged, is no longer required to register as a sex offender in the State of Mississippi.
In 2001, Stallworth pled guilty in Maryland to one misdemeanor count of sexual offense in the fourth degree, for which he received a suspended sentence and probation. When Stallworth returned to Mississippi, he was required to register as a sex offender. In February 2010, the court in Maryland expunged Stallworth’s misdemeanor conviction. Two years later, Stallworth petitioned the Circuit Court of Hinds County for relief from the duty to register as a sex offender. The trial judge denied his petition.

In a 6-3 decision, the Supreme Court reversed the trial judge and held that at the moment Stallworth’s Maryland conviction was expunged, his duty to register as a sex offender ended. Under Mississippi law, an expungement removes “all records relating to an arrest, indictment, trial, and finding of guilt, in order to restore one to the status occupied prior thereto….” Therefore, his expungement in Maryland restored Stallworth to the status he had occupied before he was convicted “and before Stallworth was convicted, he had no duty to register as a sex offender.”
As the Court summed it up: “if we are to follow the law and recognize that Stallworth has been returned to that status, then we must find that he has no present duty to register as a sex offender.”

 

Here’s the Full Opinion:

Supreme Court of Mississippi.

Jeffery A. STALLWORTH v. STATE of Mississippi.

No. 2013–CA–01643–SCT.

Decided: April 16, 2015

Before DICKINSON, P.J., LAMAR and CHANDLER, JJ. John M. Colette, Sherwood Alexander Colette, attorneys for appellant. Office of the Attorney General by: Jeffrey A. Klingfuss, attorney for appellee.¶ 1. The narrow question presented is whether the expungement of a misdemeanor, fourth-degree, sexual-offense conviction in another state by the court that entered the conviction entitles the petitioner to relief from his duty to register as a sex offender in Mississippi. The Hinds County Circuit Court denied the requested relief. But, because expungement of a conviction requires the courts to “restore one to the status occupied prior thereto,”1 we reverse.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2001, Stallworth was indicted in Prince George County, Maryland, for several sexual offenses. In March 2002, Stallworth pleaded guilty to one misdemeanor count of sexual offense in the fourth degree, for which he received a suspended sentence and probation. When Stallworth returned to Mississippi, he was required to register as a sex offender.

¶ 3. On February 4, 2010, the Prince George County District Court expunged Stallworth’s misdemeanor conviction. In December 2012, Stallworth petitioned the Hinds County Circuit Court for relief from the duty to register as a sex offender under Mississippi Code Section 45–33–47. Stallworth attached a certified copy of a “Certificate of Compliance” from the Maryland court with his petition, which “indicate[d] that the above referenced case ha[d] been expunged from the office of the sheriff’s files.”

¶ 4. After filing his petition, counsel for Stallworth met in chambers with the Hinds County district attorney and the circuit judge. The district attorney conceded that Stallworth had no conviction requiring him to continue to register as a sex offender. Despite Stallworth’s petition being unopposed, the trial judge denied the petition, so Stallworth appealed.

ANALYSIS

¶ 5. Stallworth raises two issues on appeal. First, he argues that the trial judge erred in denying his petition for relief from the duty to register as a sex offender because, after his expungement, he no longer stands convicted of any sex offense. And second, Stallworth argues that the trial court’s order violated the Full Faith and Credit Clause of the United States Constitution. Because we find that the effect of the expungement relieves Stallworth of his duty to register under the statute, we need not consider the Full Faith and Credit Clause issue.

¶ 6. Under Mississippi law, an expungement removes “all records relating to an arrest, indictment, trial, and finding of guilt, in order to restore one to the status occupied prior thereto․”2 At the moment Stallworth’s Maryland conviction was expunged, the law provides that he was restored to the status he had occupied before he was convicted, which means that—in the eyes of the law—he had no conviction. And before Stallworth was convicted, he had no duty to register as a sex offender.3 So if we are to follow the law and recognize that Stallworth has been returned to that status, then we must find that he has no present duty to register as a sex offender.

¶ 7. We find no merit in Justice Randolph’s view that Stallworth’s appeal is barred by res judicata. In Stallworth v. Mississippi Department of Public Safety, this Court held that Stallworth’s guilty plea was a conviction requiring him to register as a sex offender and that Maryland’s misdemeanor sexual offense in the fourth degree was a registerable offense under our registry statute.4

¶ 8. In Stallworth I, we were not asked to decide what effect Stallworth’s expungement had on his duty to register. At that time, his guilty plea had not yet been expunged. This is an entirely new issue and, as such, is not procedurally barred. In fact, Stallworth’s claim assumes that Stallworth I was correctly decided. At the time we decided Stallworth I, Stallworth had a duty to register. But, after he obtained the expungement, that duty disappeared, and he was within his rights to petition the court for relief.

¶ 9. Justice Randolph also argues that “[w]e are not bound by the laws of another state when interpreting the laws of this state.”5 While this very well may be true, our decision today does not rest on the law of another state. Instead, we find that Mississippi law on the effect of an expungement, as skillfully articulated by Justice Pierce in Polk, relieves Stallworth from the duty to register that he had before the expungement. Justice Randolph would have us recognize Maryland’s laws for purposes of finding a conviction but ignore them for purposes of the expungement.

¶ 10. And although we agree with Justice Pierce’s excellent analysis of the effect of expungements, we do not agree that Stallworth’s expungement has no effect on his continuing duty to register. As stated above, the expungement returned Stallworth to his status before he was convicted, not his status before the conduct occurred. Engaging in criminal conduct does not require one to register as a sex offender. That duty arises only after a conviction.6 So returning Stallworth to the status he occupied prior to the conviction must eliminate his duty to register.

¶ 11. Finally, we find no merit in the dissents’ reliance on Mississippi Code Section 45–33–55,7 which provides that:

Except for juvenile criminal history information that has been sealed by order of the court, this chapter exempts sex offenses from laws of this state or court orders authorizing the destroying, expunging, purging or sealing of criminal history records to the extent such information is authorized for dissemination under this chapter.

¶ 12. This statute says nothing about an order that expunges a conviction. Rather, it speaks to laws and orders affecting the maintenance of criminal history records. We decline to stretch this document-management, record-keeping statute beyond its provisions. It simply has no application in this case.

CONCLUSION

¶ 13. When Stallworth’s conviction was expunged, he was returned to the status he occupied before his conviction. And because he had no duty register as a sex offender before he was convicted, the expungement relieved him of any further duty to register. We reverse the trial court’s denial of Stallworth’s petition and we remand this matter to the trial court for entry of judgment consistent with this opinion.

¶ 14. REVERSED AND REMANDED.

¶ 15. But for the added circumstance of a Maryland expungement, post Stallworth I, this appeal would be barred by res judicata . It is settled law and the law of this case that Petitioner was required to register because of his guilty plea. See Stallworth v. Miss. Dep’t of Public Safety, 986 So.2d 259, 264–65 (Miss.2009) (Stallworth I ) (“Requiring Jeffery Stallworth to register fulfills the spirit and intent of the Legislature in creating the Mississippi Sex Offender Registration Laws. To do otherwise would be an affront to and an intrusion upon the rights of the general public, whom the law seeks to protect.”). In Stallworth I, this Court considered and rejected Petitioner’s argument that he was relieved of a duty to register after his guilty finding and sentence were struck by a Maryland Court. As noted in that opinion, this Court, relying on Maryland Code, Criminal Procedure Article 6–220, and the transcript from the November 4, 2005, hearing, determined his guilty plea remained intact. Stallworth I, 986 So.2d at 261.

¶ 16. In his prior appeal, Petitioner argued that “Mississippi wants to take this guilty plea and require Stallworth to register as a sex offender.” We found that Mississippi law requires registration for a conviction which is defined as “a determination or judgment of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere regardless of whether adjudication is withheld.” Miss.Code Ann. § 45–33–23(a) (Supp.2014). The majority makes multiple references to Section 45–33–23(h)(xx) (Supp.2014), which addresses only other sexual offenses not otherwise defined in the statute. Reliance on Section 45–33–23(h)(xx) is misplaced. We held that it was “the entry of the plea which satisfies conviction under the Mississippi Act.” Stallworth I, 986 So.2d at 262. Repeated references to before and after his Maryland conviction are of no event. Whether the Maryland conviction was set aside was not an issue then, nor is it now. Although his records in Maryland may have been destroyed, the fact that he admitted guilt for a sex offense is known to the State of Mississippi, for it can be found abundantly in the trial and appellate court records and probation records of this State.

¶ 17. The one fact that has remained constant in all of these proceedings, whether in Mississippi or Maryland, is that Petitioner entered a plea of guilty to committing a sex offense. The only new issue Petitioner brings to this Court is whether a Maryland expunction order relieves Petitioner of a duty to register as a sex offender. No Mississippi records of Stallworth’s status as a sex offender have been expunged. Following a plain reading of our statutes and this Court’s decision in Stallworth v. Miss. Dep’t of Pub. Safety, 986 So.2d 259 (Miss.2008) (Stallworth I ), the circuit court did not err in denying Stallworth’s petition. Save for records of juvenile offenders, our laws do not allow the records of sex offenders to be expunged. Thus, Petitioner is not entitled to relief from the legislatively mandated duty.

Background and Procedural History

¶ 18. As admitted by Petitioner in his Stallworth I brief, he was “indicted on five counts of sexual misconduct by the State of Maryland. The charges ranged from second degree rape to fourth degree sexual offense, the lowest charge of sexual offense in Maryland. In negotiating a guilty plea, the State of Maryland agreed to drop four felony sexual misconduct charges and allowed Stallworth to plead guilty to fourth degree sexual offense․” (Petitioner’s Brief at 3, Stallworth I ). Petitioner was sentenced to serve one year in the Maryland Department of Corrections, which was suspended, and he was sentenced to two years of supervised probation. His probation was served and completed in Mississippi. Stallworth I, 986 So.2d at 260. The State of Mississippi required him to register with the Mississippi Department of Public Safety pursuant to the Mississippi Sex Offender Registration Laws. Id. See Miss.Code Ann. §§ 45–33–21 to 45–33–59 (Supp.2014).

¶ 19. Only after completion of his probation did Petitioner first attempt to avoid registration by filing a Complaint for Declaratory Judgment, arguing that the sexual offense in Maryland was not a registerable offense in Mississippi. Stallworth I, 986 So.2d at 260.

¶ 20. Even though his sentence had been completed, and while the declaratory judgment was pending in Mississippi, Petitioner filed a Motion for Reconsideration of Sentence in Maryland. At the hearing on the motion referred to in Paragraph 2, the Petitioner testified that “the issue I’m trying to find a solution for is how not to be on that sex offender list in Mississippi.” No claims of trial court error, actual innocence, illegal sentence, newly discovered evidence, or a constitutional violation (state or federal) were advanced. The Petitioner offered no pleadings or argument that his guilty plea was entered in error or that the Maryland court had erred in its sentencing. The Maryland court stated, “․ I’m going to effect the finding of guilt and enter probation before judgment and it will be unsupervised probation. This is supervised probation. This is probation before the judgment.”8 The Maryland docket entry further states that “[t]he guilty finding and sentence dated 5–3–02 is hereby stricken. Further proceedings are deferred. Entry of Judgment is stayed pursuant to Criminal Procedure Article 6–220 and placed on unsupervised unpapered probation for a period of 1 year.” Stallworth I, 986 So.2d 261. The Maryland court sentenced Petitioner a second time, imposing an additional year of unsupervised probation, which it could not do if the guilty plea had been withdrawn. See Md.Code Crim. P., Art. 6–220.9

¶ 21. After the guilty finding, but not the guilty plea, was struck by the Maryland Court, Petitioner argued that there was no longer a conviction upon which Mississippi could base a registration requirement. Id. Petitioner and the State filed cross summary judgment motions. Petitioner’s was denied by the circuit court. Id. at 262.

¶ 22. On appeal before this Court in Stallworth I, Petitioner specifically argued that the circuit court erred in determining that he had a “conviction from Maryland.” (Petitioner’s Brief at 10, Stallworth I ). In Stallworth I, the Court determined that the “conviction,” for purposes of the Mississippi Sex Offender Registry, was based on Petitioner’s guilty plea, a fact which remains unchanged to this day. Stallworth I, 986 So.2d at 262. The majority repeatedly states that petitioner no longer stands convicted. However, Petitioner’s conviction was not erased by the Maryland expunction, for it was set aside five years earlier. See Stallworth I. The lack-of-conviction argument was advanced and was ruled upon in Stallworth I. The holding in Stallworth I, verbatim, was, “It is the entry of the plea which satisfies ‘conviction’ under the Mississippi Act.” Stallworth I, 986 So.2d at 262.10 Thus, “no longer stands convicted” is not the issue before us. Expunction is the issue.

¶ 23. This Court found that Petitioner committed a registerable offense and should not be relieved of his duty to register. Id. at 265. This Court determined that Petitioner had been convicted of what would be labeled a Tier Three sexual offense which “requires lifetime registration, the registrant not being eligible to be relieved of the duty to register except as otherwise provided in this section․” Miss.Code Ann. § 45–33–47(2)(d) (Rev.2011) (emphasis added). The fact that the Maryland court had struck its guilty finding and sentence did not affect Petitioner’s duty to register because of his guilty plea.

¶ 24. Following Stallworth I ‘s opinion, Petitioner continued to try and “find a solution for ․ how to not be on that sex offender list in Mississippi.” Supra ¶ 15. Petitioner returned to Maryland again and filed a new petition in the Maryland Court, this time to expunge his Maryland records. An expungement order from a Maryland Court is not in the record before us. Petitioner did offer a copy of a Certificate of Expungement from a Maryland clerk’s office, which “indicate[d] that the above referenced case ha[d] been expunged from the office of the sheriff’s files.” (Maj.Op.¶ 3). According to that document, Maryland expunged Petitioner’s conviction on February 4, 2010.11

¶ 25. Based on the claim of expungement, Petitioner filed the petition we consider today, a Petition for Relief from Duty to Register, which was denied by the circuit court.12

Analysis

¶ 26. The Legislature has devoted an entire chapter to the registration of sex offenders. Chapter 33, the Registration of Sex Offenders, found in Title 45, Public Safety and Good Order, begins with Section 21, which sets forth in pertinent part the legislative findings and declaration of its purpose: “Persons found to have committed a sex offense have a reduced expectation of privacy because of the public’s interest in safety and in the effective operation of government.” Miss.Code Ann. § 45–33–21 (Rev.2011).

¶ 27. Petitioner was and is obligated to follow the legislative directives to register and may only be relieved of the duty to register or reregister as provided for in the same statutes. Petitioner conceded in his brief that Section 45–33–47 failed to provide relief for expunction. The majority fails to address this section at all. Petitioner argued that “Mississippi’s sex offender registration statute likely does not refer to an expungement” because of a distinction between misdemeanor and felony sex offenses. See Petitioner’s Brief at 7, Stallworth II. Also, Petitioner did not raise or argue the position opined by the majority today, i.e., Section 45–33–55 does not apply, for it is only a “document-management, record-keeping statute,” language not found in that section or elsewhere in the chapter.

¶ 28. Contrastingly, it is quite clear that the Legislature was not silent regarding expungement of criminal offender records related to sex offenses, for it grants an exception for juveniles, without distinction of felonies or misdemeanors. See Miss.Code Ann. § 45–33–55 (Rev.2011). Section 45–33–55, entitled Exemption for Expunction, reads:

Except for juvenile criminal history information that has been sealed by order of the court, this chapter exempts sex offenses from laws of this state 13 or court orders authorizing the destroying, expunging, purging or sealing of criminal history records to the extent such information is authorized for dissemination under this chapter.

Id.

¶ 29. Often we are faced with discerning the intent of the Legislature as to the enactment of certain laws. That is not the case today. The Legislature has declared a strong public policy in favor of protecting the public’s safety and security regarding persons who commit sex offenses. An order of expungement from a Maryland Court obtained after this Court affirmed Petitioner’s duty to register does not dictate Petitioner’s duty in Mississippi. A Maryland court is powerless to blot out Mississippi proceedings and records of his guilty plea. While Maryland’s legislature may allow Maryland’s courts to expunge the records of sex offenders, Mississippi does not, save for juveniles. We are not bound by the laws of another state when interpreting the laws of this State. See Witten v. State ex rel. Miss. Dep’t of Pub. Safety & Criminal Info. Ctr., Sex Offenders Registry, 145 So.3d 625, 628 (Miss.2014) (citing Stallworth I, 986 So.2d at 265). Our courts “may endeavor only to interpret the laws of the State of Mississippi.” Witten, 145 So.3d at 628.

¶ 30. Our statues make clear that sex offenses are not eligible for expunction. See Miss.Code Ann. § 45–33–55 (Rev.2011). Expunction is not a condition listed by statute which would provide petitioner relief from continuing registration as a sex offender. See Miss.Code Ann. § 45–33–47 (Rev.2011). Therefore, I would affirm the judgment of the circuit court.

¶ 31. Expungement is a creature of statute. Hentz v. State, 152 So.3d 1139 (Miss.2014); Polk v. State, 150 So.3d 967 (Miss.2014); Caldwell v. State, 564 So.2d 1371, 1372 (Miss.1990). The effect of an expunction order is “to restore the person, in the contemplation of the law, to the status occupied before any arrest or indictment for which convicted.” Miss.Code Ann. § 99–19–71(3) (Rev.2007); Miss.Code Ann. § 41–29–150(d)(2) (Rev.2008); Stewart v. The Mississippi Bar, 84 So.3d 9, 14 (Miss.2011) (quoting Sections 99–19–71(3) and 41–29–150(d)(2)). “It does not however, expunge the underlying facts leading to the legal actions ․ [and] ‘does not erase the underlying conduct or behavior.’ “ In re Jarman, 860 N.W.2d 1, 2015 WL 474640, at *4 (S.D. February 4, 2015) (quoting Wright v. Tenn. Peace Officer Standards & Training Comm’n, 277 S.W.3d 1, 13 (Tenn.Ct.App.2008); State v. Lane, 3 S.W.3d 456, 462 (Tenn.1999)). As the Tennessee Court of Appeals recognized in Wright, while an expungement returns the person to the position “occupied before such arrest or indictment[,]” it “does not return a person to the position occupied prior to committing the offense.” Wright, 277 S.W.3d at 12.

¶ 32. Mississippi law contemplates the same. “The existence of an order of expunction shall not preclude an employer from asking a prospective employee if the employee has had an order of expunction entered on his behalf.” Stewart, 84 So.3d at 15 (quoting Section 99–19–71(3)). “The expunged conviction may be used for purposes of determining habitual offender status and for use of the Mississippi Law Enforcement Standards and Training Board in giving or retaining law enforcement certification, and to ensure that a person is only eligible for first-offender status one (1) time.” Id. (citing Section 45–27–21). Prospective jurors, if requested, must disclose an expunction order to the court in camera. Id. (citing Sections 99–19–71(3) and 41–29–150(d)(2)).

¶ 33. Here, Mississippi Code Section 45–33–55 makes clear that, aside from juvenile criminal history records, Mississippi’s Sex Offender Registration Law does not except from the Act expunged records pertaining to sex offenses, as defined by Mississippi Code Section 45–33–23.

¶ 34. Jeffrey Stallworth’s “conduct and [guilty] plea” in Maryland constituted a registrable offense in Mississippi. Stallworth v. Miss. Dep’t. of Pub. Safety, 986 So.2d 259, 264 (Miss.2008); see also Miss.Code Ann. § 45–33–23(g)(xviii) (Rev.2011) (“Any other offense resulting in a conviction in another jurisdiction which, if committed in this state, would be deemed to be such a crime without regard to its designation elsewhere”). Whether Stallworth obtained an expunction order in Maryland is of no matter given Section 45–33–55. Stallworth must still comply with the registration requirements set forth under Mississippi’s Sex Offender Registration Law.

¶ 35. For these reasons, I dissent from the majority’s decision finding otherwise.

DICKINSON, Presiding Justice, for the Court:

LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR.RANDOLPH, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J.; PIERCE, J., JOINS THIS OPINION IN PART.PIERCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND RANDOLPH, P.J.WALLER, C.J., JOINS THIS OPINION.PIERCE, J., JOINS THIS OPINION IN PART.WALLER, C.J., AND RANDOLPH, P.J., JOIN THIS OPINION.

Geoffrey Calderaro Joins Holcomb Dunbar Attorneys

Geoffrey F. Calderaro

Geoffrey F. Calderaro

Holcomb Dunbar – Attorneys is pleased to announce that Geoffrey Calderaro has joined the law firm in its Litigation and Insurance Defense team. Calderaro’s primary areas of practice are in civil litigation, insurance defense and criminal defense. He is admitted to practice in all Mississippi Courts, the U.S. District Court for the Northern and Southern Districts of Mississippi, and the U.S. Court of Appeals for the Fifth Circuit.

Geoffrey received the Georgia HOPE Scholarship to attend the University of Georgia where he earned a B.B.A. in Management summa cum laude in 2011. In 2014 Geoffrey earned his J.D. from The University of Mississippi School of Law summa cum laude. He earned outstanding Student Awards for Property Law, Criminal Law, Legal Profession, and Employment Discrimination. While in law school, Geoffrey authored Promoting Democracy While Preserving Federalism: The Electoral College, The National Popular Vote, and the Federal District Popular Vote Allocation Alternative, 82 Miss. L.J. Supra 287 (2013) for the Mississippi Law Journal.

Holcomb Dunbar is a full service law firm offering services in litigation, 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, criminal defense, complex litigation, real estate transactions, contract, mass-tort defense, mediation, debtor-creditor matters, and divorce.

Josh Moore Joins Holcomb Dunbar – Attorneys

Joshua P. Moore

Josh Moore

Josh Moore Joins Holcomb Dunbar – Attorneys

Holcomb Dunbar – Attorneys is pleased to announce that Josh Moore has joined the law firm as a partner with its Litigation and Insurance Defense team. Moore will concentrate his practice on providing general litigation representation with an emphasis on insurance related matters.
Moore has practiced law across Mississippi for the past eleven years in insurance defense including Mississippi Tort Claims Act matters. Josh received his Juris Doctor from Mississippi College School of Law in 2004 and received a Bachelor of Arts in1997 from the University of Mississippi.

Josh is admitted to practice in the U.S. district court, the Northern and Southern Districts of Mississippi, and the U.S. Court of Appeal Appeals for the Fifth Circuit. While in law school, Josh worked as an assistant to the Public Defender at the Rankin County Youth Court.

Josh was born in Atlanta, Georgia in July of 1975. Josh received a performance scholarship to attend the University of Mississippi where he was awarded a B.A. in Theater in 1997. He received his Juris Doctor from the Mississippi College School of law in 2004.

Holcomb Dunbar is a full service law firm offering services in litigation, 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, criminal defense, complex litigation, real estate transactions, contract, mass-tort defense, mediation, debtor-creditor matters, and divorce.

 

Holcomb Dunbar’s Legal Alliance Recognized as “Elite”

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.”

Texting and Driving In Mississippi

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

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.

Mississippi Uninsured Motorist Law

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 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.” Justice 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]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 Commissioner of Insurance.”  The bill 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 in Holcomb Dunbar

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.

Intoxilyzer 8000

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.

Mississippi’s Common Law DUI Evidence

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.

Thanks to Our Veterans

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!

Holcomb Dunbar’s Russ McNees Named “Rising Stars”

Russ McNees

Russ McNees

Edward “Russ” McNees has been named to Mid-South Super Lawyer magazine’s “Rising Star” list. This marks the third consecutive year for Mr. McNees. The “Rising Stars” list is comprised of the top 2½ percent of attorneys 40 years old or younger and practicing in the three-state region of Mississippi, Arkansas, and Tennessee.

The selections for Super Lawyers are made by the research team, which is a service of the Thomson Reuters, Legal division based in Eagan, Minn. Each year, the research team at Super Lawyers undertakes a rigorous multiphase section process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, and a good-standing and disciplinary check. The Super Lawyers staff searches for lawyers who have attained honors, results or credentials, which indicated a high degree of peer recognition or professional competence. The staff identifies these by reviewing proprietary listings of more than 150 database and online sources, as well as national and local trade publications.

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.

For more information, visit www.holcombdunbar.com.

Holcomb Dunbar Named Tier 1 National “Best Law Firm” in U.S. News – Best Lawyers®

Holcomb Dunbar AttorneysHolcomb, Dunbar, Watts, Best, Masters & Golmon named a Tier 1 National “Best Law Firm” in litigation by U.S. News – Best Lawyers® in the 2015 edition.

Firms included in the 2015“Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law prac¬tice and breadth of legal expertise. To be eligible for a ranking, a firm must have a lawyer listed in The Best Lawyers in America©, which recognizes the top 4 percent of practicing attorneys in the US. “We are pleased to be included in this year’s list” says Jonathan Masters, one Holcomb Dunbar’s members.

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers is based on an exhaustive peer-review survey. Over 52,000 leading attorneys cast more than 5.5 million votes on the legal abilities of other lawyers in their practice areas. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity.

Awards were given in 74 national practice areas and 120 metropolitan practice areas. One “Law Firm of the Year” is named in 87 of the ranked practice areas.

The 2014 “Best Law Firms” rankings can be seen in their entirety by visiting bestlawfirms.usnews.com.

Holcomb Dunbar’s Ghosts are Back

Holcomb Dunbar Halloween  Holcomb Dunbar’s ghosts are back!

Stop by Halloween night for a treat.

Happy Halloween!

Child Custody & Extramarital Conduct

Alienation of Affection .1By Stacey Golmon

How does inappropriate extramarital conduct effect child custody in a Divorce?

A common thought among people I meet with is that if one parent in a child custody case is caught doing or participating in extramarital activities that show a lack of moral fitness, then that parent will likely be unsuccessful in gaining primary physical custody of their children. While that is certainly a consideration by the court, it is not the sole determination of who should have custody of children. Take the recent opinion by the Mississippi Supreme Court in Borden v. Borden, No. 2012-CT-01258-SCT, decided on October 9, 2014.

In Borden, father and mother were both seeking primary physical custody of their two (2) children. The lower court gave custody to the father, after hearing testimony that the mother had engaged in what the court called “inappropriate extramarital contacts” before the couple filed for divorce. The testimony showed that the mother had reconnected with several high school boyfriends via Facebook and then proceeded to have numerous sexually explicit conversations with one of them online. This led to mother meeting these men at a bar and even accompanying one of them back to his hotel room where that man’s wife confronted the couple. While the court did not find enough evidence in the case to show adultery on the part of the mother, the court stated the mother “should have been home taking care of children…instead of out partying in Memphis or where ever she was at the nightspots and going out on the town and meeting with another man at a motel.” Needless to say, the court was not pleased with mother’s behavior. In awarding custody to the father, the lower court went through the Albright factors (the thirteen factors the courts use to determine custody) and used the mother’s inappropriate behavior mentioned above to favor father on three (3) of those factors, resulting in the father being awarded custody.

The Mississippi Supreme Court reversed the lower court’s decision and said that while moral fitness is an important factor for the court to consider in custody matters, it is only one of the Albright factors and the court cannot use the immoral conduct of one parent as the sole basis in awarding custody of children. To do so, they said, would give undue weight to the mother’s misconduct and was a “sanction” or punishment to mother for her behavior. The Court stated again that the polestar consideration in all child custody cases should be the best interests of the child and cautioned lower courts about “punishing” a parent for inappropriate conduct.

Best and Masters Receive A/V Preeminent Ratings

Jonathan Masters and Brad BestHolcomb Dunbar congratulates firm members Brad Best and Jonathan Masters who recently received A/V ratings from Martindale Hubbell.

According to Martindale Hubbell:

The Martindale-Hubbell® Peer Review Ratings™ are an objective indicator of a lawyer’s high ethical standards and professional ability, generated from evaluations of lawyers by other members of the bar and the judiciary in the United States and Canada. The first review to establish a lawyer’s rating usually occurs three years after his/her first admission to the bar.
Martindale-Hubbell facilitates secure online Martindale-Hubbell Peer Review Ratings surveys of lawyers across multiple jurisdictions and geographic locations, in similar areas of practice as the lawyer being rated. Reviewers are asked to assess their colleagues’ general ethical standards and legal ability in a specific area of practice. The ratings appear in all formats of the Martindale-Hubbell® Law Directory, in the online listings on martindale.com®, Lawyers.comSM, on the Martindale-Hubbell services, on Martindale-Hubbell mobile apps.
The Ratings Explanation
Martindale-Hubbell® Peer Review Ratings™ reflect a combination of achieving a Very High General Ethical Standards rating and a Legal Ability numerical rating. A threshold number of responses is required to achieve a rating.
The General Ethical Standards rating denotes adherence to professional standards of conduct and ethics, reliability, diligence and other criteria relevant to the discharge of professional responsibilities. Those lawyers who meet the “Very High” criteria of General Ethical Standards can proceed to the next step in the ratings process – Legal Ability.
Legal Ability ratings are based on performance in five key areas, rated on a scale of 1 to 5 (with 1 being the lowest and 5 being the highest). These areas are:

  • Legal Knowledge – Lawyer’s familiarity with the laws governing his/her specific area of practice(s)
  • Analytical Capabilities – Lawyer’s creativity in analyzing legal issues and applying technical knowledge
  • Judgment – Lawyer’s demonstration of the salient factors that drive the outcome of a given case or issue.
  • Communication Ability – Lawyer’s capability to communicate persuasively and credibly
  • Legal Experience – Lawyer’s degree of experience in his/her specific area of practice(s)
The numeric ratings range may coincide with the appropriate Certification Mark:

  • AV Preeminent® (4.5-5.0) – AV Preeminent® is a significant rating accomplishment – a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.
  • BV Distinguished® (3.0-4.4) – BV Distinguished® is an excellent rating for a lawyer with some experience. A widely respected mark of achievement, it differentiates a lawyer from his or her competition.
  • Rated (1.0-2.9) – The Peer Review Rated designation demonstrates that the lawyer has met the very high criteria of General Ethical Standing.
Areas of Practice
Martindale-Hubbell uses a specific practice area list in the review process to help ensure that all lawyers are rated upon equivalent practice areas, regardless of how individual lawyers choose to articulate their area of expertise. This allows users of ratings to compare and contrast lawyers with a specific area of practice. The Martindale-Hubbell® Peer Review Ratings™ area of practice list is based on user behavior, research on emerging areas of law, and other forms of legal research. Martindale-Hubbell updates the list regularly to reflect the changing needs of the legal industry.
Feedback and Comments
Martindale-Hubbell® Peer Review Ratings™ allow reviewers to provide feedback on the lawyer under review. Feedback is displayed anonymously in conjunction with the review results. Lawyers are allowed to place a one-time comment next to any of the feedback. Martindale-Hubbell subscribers are able to highlight two peer feedback comments and position them at the top of their ratings display. Peer Review feedback will be archived after two years.Peer Review feedback/comments are published for all attorneys who are listed on our Martindale-Hubbell database. Martindale-Hubbell publishes lawyer/firm rating information it has gathered about lawyers/firms and provides a forum for other third parties to share what they’d like to share about any particular lawyer(s) on our websites martindale.com and Lawyers.comSM. The site is not law firm advertising and Martindale-Hubbell is not acting as agent for any lawyer or law firm in publishing this information. Each lawyer/law firm must decide for itself how it wishes to use any Martindale-Hubbell Peer Review Ratings information and, as stated in the terms of use, each lawyer/law firm is wholly responsible for ensuring that any use it makes of Martindale-Hubbell Peer Review Ratings or of data is compliant with the ethics rules affecting that lawyer/law firm.

Cyber Bullying

cyber bullyingBy Doug Hollowell

With the influx of cyber bullying and electronic harassment through social media posting, and with text messages all but consuming modern communication, the court system has been challenged to stay on top of unlawful behavior in the digital medium.  Mississippi law specifically addresses what digital media activities may be criminal (Mississippi Code Annotated § 97-29-45 ):

(a) To make any comment, request, suggestion or proposal by means of telecommunication or electronic communication which is obscene, lewd or lascivious with intent to abuse, threaten or harass any party to a telephone conversation, telecommunication or electronic communication;

(b) To make a telecommunication or electronic communication with intent to terrify, intimidate or harass, and threaten to inflict injury or physical harm to any person or to his property;

(c) To make a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at the called number;

(d) To make or cause the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number;

(e) To make repeated telephone calls, during which conversation ensues, solely to harass any person at the called number; or

(f) Knowingly to permit a computer or a telephone of any type under his control to be used for any purpose prohibited by this section.

The law defines “telecommunication” and “electronic communication” to mean and include any type of telephonic, electronic or radio communications, or transmission of signs, signals, data, writings, images and sounds or intelligence of any nature by telephone, including cellular telephones, wire, cable, radio, electromagnetic, photoelectronic or photo-optical system or the creation, display, management, storage, processing, transmission or distribution of images, text, voice, video or data by wire, cable or wireless means, including the Internet.

And if you’re convicted, a first time offender can receive a fine of up to $500 and/or up to  6 months in jail.   A second time offender, within a period of five years, can be fined up to $1000, and/or up to a year in jail.

 

Mississippi New DUI Laws

Mississippi New DUI Laws

By: Doug Hollowell

DUI AttorneyIt’s a big weekend here in Oxford. The Ole Miss Rebels take on Alabama’s Crimson Tide and ESPN’s Game Day will be here to kick of an exciting weekend.  However, with a big win, will come a big celebration.  But don’t let that celebration end badly.

Mississippi’s New DUI laws went into effect earlier this week so take a minute and keep these in mind.  The new provisions are controversial to say the least, as many believe the new fines and requirements drastically punish first time offenders. In a sort of balancing act, however, the law provides opportunities to those who are eligible. The major changes involve the ability to non-adjudicate and/or expunge a first DUI that meets certain criteria, and the newly required ignition-interlock system, which will completely reshape the DUI landscape of Mississippi enforcement.
The Oxford Police Department has long implemented a two-man special task force who patrol the roads for the specific purpose of DUI enforcement. Safety is the chief concern in most any university town. Under Mississippi Code Annotated § 63-11-30, it is unlawful for a person to drive or otherwise operate a vehicle within this state if the person:

(a) Is under the influence of intoxicating liquor;
(b) Is under the influence of any other substance that has impaired the person’s ability to operate a motor vehicle;
(c) Is under the influence of any drug or controlled substance, the possession of which is unlawful under the Mississippi Controlled Substances Law; or
(d) Has an alcohol concentration in the person’s blood, based upon grams of alcohol per 100ml of blood, or grams of alcohol per 200L of breath, as shown by a chemical analysis of the person’s breath, blood or urine administered as authorized by this chapter; of:
(i) .08% or more for a person who is above the legal age to purchase alcoholic beverages;
(ii) .02% or more for a person who is below the legal age to purchase alcoholic beverages;
(iii) .04% or more for a person operating a commercial motor vehicle.

Under the new law, after a person is convicted of a first offense DUI, the Court will order him or her to:

1) Pay a fine not less than $250.00 but not more than $1,000.00, or imprisoned for not more than 48 hours in jail, or both (the Court may substitute attendance at a victim impact panel instead of 48 hours in jail);
2) Attend and complete an alcohol safety education program within 1 year;
3) Surrender his or her driver’s license and obtain a new driver’s license that is restricted to the operation of vehicles equipped with an ignition interlock device.

This ignition interlock system must be used for a period of 90 days. Failure to obtain an ignition interlock system and restricted license will result in a license suspension for 90 days. The person convicted of the first offense DUI bears the cost of the ignition interlock and its installation, and must also pay monthly fees for monitoring and calibration. The law will have a penalty for anyone caught blowing into the device for another person, and devices will contain further anti-circumvention features.
As mentioned above, the new law introduces more than just harsher punishments and mandatory ignition-interlock use. The ability to non-adjudicate a first offense DUI has also been expanded. Nonadjudication refers to a process first-time offenders can use to avoid a conviction. During nonadjudication, a judge will accept a plea of guilty, but will not enter the plea, allowing the offender to complete court-ordered conditions. Upon completion of the conditions, the earlier guilty plea is put aside, and the judge will order the case non-adjudicated.
A person is eligible for nonadjudication only once. A qualifying first offense is one where the breath test was not refused unless the court provides written findings on why nonadjudication is being allowed where a breath test was refused. A court will order a person seeking nonadjudication to:

1) Pay the nonadjudication fee;
2) Pay all fines, penalties, and assessments that would have been imposed for conviction;
3) Attend and complete an alcohol safety education program as provided in Section 63-11-32;
4) Install an ignition interlock device on every motor vehicle driven by the person, obtain an interlock restricted license, and maintain that license for 120 days; failure to obtain an interlock restricted license will result in a 90 day driver’s license suspension;
5) Obtain from the interlock vendor proof that the person has not had violations of an ignition interlock device.

Other conditions to be imposed by the court may include, but are not limited to, alcohol or drug screening, or both, proof that the person has not committed any other traffic violations while under court supervision, proof of immobilization or impoundment of vehicles owned by the offender if required, and attendance at a victim-impact panel. The court may enter an order of nonadjudication only if the court finds, after a hearing, that the offender completed all conditions imposed by law and the court.
Finally, the new law allows eligible minors and first offense DUI offenders the ability to expunge their record of the conviction (though it eliminates the eligibility for holders of a commercial driver’s license). Any eligible person must wait at least 5 years after the successful completion of all terms and conditions of the sentence imposed for the conviction before petitioning the court for expungement. Expunction is further eligible only to those:

1) Who did not refuse to submit to a test of his or her blood or breath;
2) Whose blood alcohol concentration tested below (0.16%) if results are available;
3) Who has not been convicted of and does not have pending any other offense of driver under the influence; and
4) Who has provided the court with justification as to why the conviction should be expunged.

If you have been charged with driving under the influence, or if you have any further questions regarding Mississippi’s new DUI laws, please contact Doug Hollowell and Holcomb Dunbar Law Firm at 662-234-8775.

Homestead in Mississippi

Homestead in Mississippi

By Brad Golmon
Homestead-in-MississippiWe all understand that your homestead is where you and your family live, and that a man’s home is his castle and it’s where the heart is, too. But did you know that there are at least four different ways that Mississippi law protects your homestead? It’s easy to lump all of these four together, but keeping them separate in your thinking can aid in making good decisions and might keep you from some bad ones.

First, and most common, is the homestead tax exemption. This is the filing that homeowners can make that reduces their ad valorem property taxes. That election is made with a filing with the tax assessor for your county under the authority of Mississippi Code Annotated Section 27-33-3. You must file for homestead tax exemption by April 1 to claim the exemption for that tax year. Once on file, it renews from year to year until record title changes, such as when you sell your home.

Second, there is an exemption, or protection, from the claims of creditors that relates to the homestead of persons living in Mississippi. This protection is contained in Section 85-3-21of Mississippi’s Code and protects your home from creditors up to $75,000 worth of equity in the home or 160 acres of land, which ever is the lesser value. You do not have to make the homestead tax exemption filing to have this protection. In fact, Section 85-3-35 says that if for whatever reason you have not made the tax exemption filing you still get the protection.  However, if you own more than 160 acres of land it will be necessary to decide which part of your property obtains the protection.  The law provides that the sheriff nominate a committee of local landowners to make the decision. Still, it seems better to make that choice yourself and make sure to have the tax exempt filing before it ever comes to this, even though the protection from the claims of creditors is not contingent upon making that filing.

Third, one spouse cannot sell or mortgage the homestead property without the signature and consent of the other spouse, regardless of title. Even if a husband or wife owns the family home outright, he or she cannot sell it or borrow against it without the consent of the other. This protection for non-title owning spouses is found in Section 89-1-29. It goes as far as prohibiting the use of a power-of-attorney by one spouse to circumvent the statute.  This law is designed to prevent one spouse (the owner) from selling or giving away the marital home and leaving the other spouse destitute.

Finally, if a spouse dies, the surviving spouse has a right to remain in the family home, regardless of title or inheritance. Section 91-2-23 provides this “widow’s/widower’s right” and ties this into the other concepts by making reference to “exempt property.” If there is “exempt property,” that is, if there is a family home, regardless of a tax exemption filing, then a surviving spouse, even in the absence of a title right, has the right to remain in the home for the rest of his or her life, so long as she occupies the property.

Mississippi law has taken these steps to protect families and family members because we believe that families are important. Knowing how these elements of the protection fit together is important, too.

Insurance Law from A to Z Series – Wrongful Death

Summary Mississippi Insurance Law CoverIt’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”  This was put together by our litigation group who practice in the insurance law arena.  Of course, if you have questions about these or any other topics please do not hesitate to contact us.

This week’s installment – Wrongful Death

Brought by a beneficiary or personal representative, the following damages can be recovered in a wrongful death action: expenses of last illness, any conscious pain and suffering of the deceased, funeral expenses, the present net cash value of the deceased’s work life expectancy (i.e. the total earnings the deceased would have realized throughout his lifetime, based on the average life expectancy) reduced to the present value and further reduced by the amount which the decedent would have spent on himself, and loss of society and companionship of the deceased (does not include ‘grief’).  Miss. Code Ann. § 11-7-13.

 

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The information contained in this post is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Dunbar.

Insurance Law From A to Z Series – Vicarious Liability

Summary Mississippi Insurance Law CoverIt’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”  This was put together by our litigation group  who practice in the insurance law arena.  Of course, if you have questions about these or any other topics please do not hesitate to contact us.

This week’s installment – Vicarious Liability

Without some special relationship, an owner of an automobile is not liable for injuries negligently caused by a permissive driver.  Wood v. Nichols, 416 So. 2d 659 (Miss. 1982).

The methods in which liability may be imputed from a permissive user to owner are agency, employment, negligent entrustment, conspiracy, joint enterprise, and ownership liability statutes.  Woods v. Nichols, 416 So. 2d 659, 663-64 (Miss. 1982) (agency); Dukes v. Sanders, 124 So. 2d 122, 128 (Miss. 1960) (negligent entrustment); Buford v. Horne, 300 So. 2d 913 (Miss. 1974) (joint enterprise); See Miss. Code Ann. § 63-1-25 (joint and severally liability for the willful or negligent acts of a minor under seventeen while operating motor vehicle between minor and person who signed application for license or permit).

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The information contained in this post is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, particularly before denying any first-party claims, you should consult with your in-house counsel or the attorneys at Holcomb Dunbar.

Grandparent Visitation

Bear on a pumpkinGrandparent Visitation

By:  Stacey Golmon

A common misconception in family law concerns the rights of grandparents to see their grandchildren. In most cases, parents are exceedingly pleased to have the physical, emotional and financial help of grandparents with their children. However, when divorce occurs and feelings are hurt on both sides, sometimes a parent may no longer allow one set of grandparents to participate and spend time with the grandchildren.

Do grandparents have visitation rights in these circumstances? The Mississippi courts have said that depends. In the case of Aydelott v. Quartaro, 124 So.3d 97 (Miss. Ct. App. 2013), the Court says there is “no inherent right to grandparent visitation.” However, visitation can be granted if there is proof of a narrow, statutory criteria designed to help protect the rights of the parents to make decisions about their children’s lives. That criteria is that the grandparents must show they have established a “viable relationship” with the children by either financially supporting the children or through regular physical visits with the children. The court said it was not enough that the grandparents had a “desire” to have a viable relationship with the child but the relationship must be established prior to their filing a complaint.

So, grandparents who regularly see their grandchildren, have the children spend the night with them frequently, and regularly buy them things are in much better shape that the grandparents who have only seen the children occasionally. Again, hopefully the emotions of a divorce will fade and parents will seek out grandparents for help in raising their children, but if not, there is the possibility, if the grandparents were very involved prior to the divorce, for them to seek help from the courts and have some visitation granted.

Insurance Law From A to Z Series – Reasonable Expectation Doctrine

Summary Mississippi Insurance Law CoverIt’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”  This was put together by our litigation group  who practice in the insurance law arena.  Of course, if you have questions about these or any other topics please do not hesitate to contact us.

This week’s installment – Reasonable Expectation Doctrine

Mississippi has adopted the reasonable expectations doctrine on public policy grounds: “The objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though the painstaking study of the policy provisions would have negated those expectations.”  Brown v. Blue Cross & Blue Shield, 427 So. 2d 139, 141, fn. 2 (Miss. 1983) (citing Keeton, Insurance Law Rights at Variance with Policy Provisions, 83 Harv. L. Rev. 961, 967 (1970)).

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The information contained in this post is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Dunbar.

Mississippi Creates Mini-MDLs (Really, MCLs)

thYB4KD5VWMississippi created mini-MDLs or more appropriately, mini-MCLs.  The Mississippi Supreme Court amended Rule 42 of the Rules of Civil Procedure on September 25, 2014. The Court added a new section designed to permit the consolidation of similar cases with similar facts that are pending in counties that are within a single judicial district (either chancery or circuit). Those of you familiar with traditional Multi-District Litigation (MDL) practice know this is a special federal procedure that combines cases filed in many different federal court districts, generally throughout the country, and consolidates all pre-trial proceedings under one federal judge in order to coordinate and efficiently manage cases that share common issues.  The Mississippi Supreme Court has essentially adopted this approach as it relates to cases pending in multiple counties within a single Circuit or Chancery district.  It will be interesting to see how this new “Multi-County Litigation” platform is utilized by the bench and bar.

Here is the Rule:  42(c) Counties Within a Single Circuit or Chancery Court District: When civil actions involving common questions of fact or law are pending in different counties of a single Circuit or Chancery Court district, such actions may be consolidated for coordinated or consolidated pretrial proceedings and, if the actions do not involve trials by jury, may be consolidated for all purposes.  All judges presiding over the cases to be consolidated must agree to the consolidation and to the judge who will preside over the cases for the purposes stated herein.  For the purposes of this rule, “pretrial proceedings” means all matters presented to the judge prior to trial except dispositive motions.

Child Support and Childcare Expenses

Stacey Golmon

Stacey Golmon

By Stacey Golmon

What if childcare expenses for my minor children eat up most, if not the entire amount of my child support payments from my ex-spouse? Do the statutory child support guidelines factor in paying for the daycare expenses of the minor children?

As a family lawyer, I am often presented with primary physical custodians who are receiving the statutory required child support payments from the noncustodial parent, but that amount, which is supposed to be for the “basic” needs of the children, is eaten up almost completely when the parent pays the monthly daycare bill.

Child support guidelines in Mississippi are presumptively correct and are found in Miss. Code Annotated 43-19-101. These guidelines require a percentage of the noncustodial parent’s adjusted gross income be paid to the custodial parent to support a certain number of children. However, there are ways a chancellor may deviate, either up or down, from those guidelines if he determines that the application of the guidelines is inappropriate. Those deviation criteria are found in Miss. Code Annotated 43-19-103.

One deviation criteria given under the statute involves the payment of daycare expenses. Under 43-19-103 (I) (Supp. 2012), “Payment by the obligee of child care expenses in order that the obligee may seek or retain employment…” is one such factor that the chancellor can use to increase the child support payment due a custodial parent.

Realistically, sometimes it takes just about all of a custodial parent’s income just to pay for daycare and groceries. The courts do have a way to require the noncustodial parent to step up and bear some of these costs.

So, yes, there is statutory authority to seek more child support than the statutory guidelines provide for if the custodial parent can show the payment of the statutory guideline would either not even pay for daycare or leave very little to buy the necessities, like rent and food, and that the noncustodial parent has some available income to share in this necessary cost of parenting.

Insurance Law From A to Z Series – Uninsured and Underinsured Motorists

Summary Mississippi Insurance Law CoverIt’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”  This was put together by our litigation group  who practice in the insurance law arena.  Of course, if you have questions about these or any other topics please do not hesitate to contact us.

This week’s installment – Uninsured/Underinsured Motorist

UM Statute

Mississippi law does not treat uninsured motorists (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.

Caveat: The statute does not prevent an insurer from providing greater coverage than required.  Thus, it is very important to always review both the statute and the policy.

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 limitsCossitt 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.  The Mississippi Supreme Court recently explained that in most cases if an insured denies he was fully informed of his UM rights, it will create a jury question.

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

“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).

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.

 

__________________

The information contained in this post is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Dunbar.

Indictment Must be Specific

image Indictment Must be Specific Says the Mississippi Supreme Court in a recent Opinion.

By: Doug Hollowell

Dexter Fulton was indicted and convicted under section 97-17-70 which prohibits a person from intentionally receiving stolen property. In his original indictment, the stolen property he allegedly received was described only by class- “tractor batteries, battery cables, mack truck batteries, and aluminum wheels.” Shortly before Mr. Fulton’s trial, his indictment was amended to read “tractor battery box covers and mack truck battery box covers.”

The Supreme Court found that these indictments did not describe with sufficient particularity the essential facts constituting the offense charged. The Court found the indictment should contain limiting modifiers or list the quantity of each item received, rather than simply describing the stolen property as a single class. Accordingly, the Supreme Court reversed the Circuit Court and the Court of Appeals, and vacated the holding.

 

Here’s the Full Opinion:

 

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2011-CT-01819-SCT

DEXTER FULTON a/k/a DEXTER CALVIN
FULTON
v.
STATE OF MISSISSIPPI

ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 03/01/2011

NATURE OF THE CASE: CRIMINAL – FELONY
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED. THE JUDGMENT
OF THE LOWNDES COUNTY CIRCUIT
COURT IS REVERSED AND THE
CONVICTION IS VACATED – 09/11/2014
MOTION FOR REHEARING FILED:

MANDATE ISSUED:
EN BANC.

WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1. Dexter Fulton was convicted in the Lowndes County Circuit Court for receiving stolen
property. The Court of Appeals affirmed Fulton’s conviction and sentence on direct appeal.
We granted Fulton’s petition for writ of certiorari to determine whether Fulton’s indictment
was fatally defective and whether the trial court erroneously allowed an amendment of
substance to Fulton’s indictment. Finding error as to both issues, we reverse the judgments
of the Court of Appeals and the circuit court and vacate Fulton’s conviction.

STATEMENT OF THE CASE

¶2. Dexter Fulton was arrested by officers of the Columbus Police Department after he
attempted to sell allegedly stolen truck-battery box covers1 to Columbus Scrap in Columbus,
Mississippi. These battery boxes previously had been reported missing after a break-in at
Sobley Excavating in Columbus.

¶3. Fulton’s indictment, which charged him with receiving stolen property in violation
of Section 97-17-70 of the Mississippi Code, provided:

[O]n or about the 20th day of October, 2008, [Fulton] did unlawfully, wilfully,
and feloniously, receive, possess or dispose of the personal property of Sobley
Excavating, to-wit: tractor batteries, battery cables, mack truck batteries, and
aluminum wheels, said property having a total value in excess of $500.00, and
having been feloniously taken away from the said Sobley Excavating and
further that the said Dexter Fulton [] had reasonable grounds to believe at the
time of the receiving, possessing, or disposing of said property that said
property had been so feloniously taken.
(Emphasis added.)

¶4. On August 10, 2010, the State moved to amend Fulton’s indictment, asking that the
words “tractor batteries, battery cables, mack truck batteries, and aluminum wheels” be
3
struck from the indictment and replaced with “tractor battery box covers and mack truck
battery box covers.” The trial court granted the State’s motion to amend Fulton’s indictment
on February 18, 2011, ten days before trial. At the conclusion of Fulton’s trial, the jury
found Fulton guilty of receiving stolen property. Fulton was sentenced as a habitual offender
to ten years’ imprisonment without the possibility of parole or reduction in sentence. On
appeal, Fulton argued that the trial court had erred when it allowed a substantive amendment
to his indictment. The Court of Appeals affirmed his conviction, finding no error in the
amendment of the indictment.  Fulton v. State, No. 2011-KP-01819-COA, 2013 WL
3886021, *3 (Miss. Ct. App. July 30, 2013). Fulton now seeks certiorari review from this
Court. We limit our review to whether Fulton’s indictment was fatally defective for failing
to inform him sufficiently of the charges against him and whether the Court of Appeals erred
in holding that the amendment of the indictment was one of mere form. Miss. R. App. P.
17(h).

STANDARD OF REVIEW
¶5. Because the question of whether an indictment is fatally defective is an issue of law,
the standard of review is de novo. Peterson v. State, 671 So. 2d 647 (Miss. 1996). The
standard of review for an amendment of an indictment also is de novo. Spears v. State, 942
So. 2d 772, 773 (Miss. 2006).

DISCUSSION
I. Whether Fulton’s indictment was fatally defective for failing to
sufficiently describe the stolen property he allegedly received.

¶6. The purpose of the indictment is “to furnish the accused such a description of the
charges against him as will enable him to adequately prepare his defense.” Williams v. State,
445 So. 2d 798, 804 (Miss. 1984). Rule 7.06 of the Uniform Rules of Circuit and County
Court Practice governs our consideration of the sufficiency of an indictment, including that
the indictment must contain “a plain, concise and definite written statement of the essential
facts constituting the offense charged and shall fully notify the defendant of the nature and
cause of the accusation.” URCCC 7.06. “An additional test [for the sufficiency of the
indictment] is whether, in case other criminal proceedings are taken against the defendant
based on the same matters, the record shows with accuracy to what extent he may plead a
former acquittal or conviction in bar of the later proceedings.” Hamilton v. State, 197 So.
2d 469, 474 (Miss. 1967) (citation omitted).

¶7. Fulton was indicted under Section 97-17-70 of the Mississippi Code, which prohibits
a person from “intentionally possess[ing], receive[ing], retain[ing] or dispos[ing] of stolen
property knowing that it has been stolen or having reasonable grounds to believe it has been
stolen[.]” Miss. Code Ann. § 97-17-70 (Rev. 2006). The question presented here is whether
Fulton’s indictment sufficiently described the stolen property that he allegedly received, an
essential fact at issue.

¶8. “It is essential, in an indictment for receiving stolen property, to describe the property
with the same particularity as is required in an indictment for larceny.” Wells v. State, 43 So.
610, 611 (Miss. 1907). The common-law rule regarding the sufficiency of the description
of stolen property required in an indictment for larceny has been stated as follows: “A
statement of number or quantity of articles taken being a necessary part of the description,
‘a load of cord wood,’ or a ‘certain load of lumber’ is not sufficiently definite. It is
insufficient to allege the defendant stole ‘cattle.’” Rutherford v. State, 17 So. 2d 803, 804
(Miss. 1944) (quoting 36 C.J. 815, § 271). In Rutherford, the defendant’s indictment
charged him with larceny of “a quantity of clover seed.” Id. This Court reasoned that “[t]he
word ‘quantity’ is so vague, uncertain and indefinite as to give the defendant no intimation
regarding the amount of clover seed which he was accused of stealing.” Id. This Court
recognized that, where a sufficient description of the stolen property is not known, “such
fact, if alleged in the indictment or information, will generally cure the otherwise
insufficiency, for the reason that the law does not require a greater certainty than the nature
of the case affords.” Id. (citation omitted). However, because the stolen clover seed readily
could have been described by specific weight or quantity, this Court found that the
defendant’s indictment was fatally defective for failing to include that information. Id. at
805.

¶9. This Court has adhered to the rule in Rutherford when determining the sufficiency
of the description of property in an indictment for receiving stolen property. For example,
in Nguyen v. State, 761 So. 2d 873, 876-77 (Miss. 2000), this Court held that an indictment
for receiving stolen property, which described the property as “114 items, including
televisions, C.D. players, VCR’s, cameras, tools and microwaves,” was fatally defective.
Because “[t]he indictment does not describe how many individual TV’s, VCR’s, cameras,
tools or microwaves were received,” this Court found that the defendants were not
sufficiently notified of the “essential facts constituting the offense charged.” Id. at 877
(citing URCCC 7.06). Notably, this Court rejected the State’s argument that the discovery
process eliminated the need for exhaustive descriptions in the indictment, finding that
“[d]discovery is not a substitute for the requirements of URCCC 7.06 . . . . [T]he appellants
should not be forced to engage in discovery in order to find out the essential facts
constituting the offense charged[.]” Id. Again, in Tucker v. State, 47 So. 3d 135, 139 (Miss.
2010), this Court found a defendant’s indictment for receiving stolen property to be fatally
defective, where the stolen property was described merely as “athletic apparel.” In Tucker,
this Court, citing Nguyen, found that the defendant’s indictment should have contained
“limiting modifiers” or listed the quantity of each item received rather than simply describing
the stolen property as a single class. Id. at 138 (citing Nguyen, 761 So. 2d at 877)).
Accordingly, this Court held that the property description of “athletic apparel, said property
having a total value in excess of $500,” did not describe the stolen property with sufficient
particularity to inform the defendant of the nature of the charges against him. Tucker, 47 So.
3d at 139.

¶10. In the instant case, Fulton’s indictments, both originally and as amended, clearly
suffer from the same inadequacies as those recognized by this Court in Nguyen and Tucker.
In Fulton’s original indictment, the stolen property he was alleged to have received was
described only by class – “tractor batteries, battery cables, mack truck batteries, and
aluminum wheels.” When Fulton’s indictment was amended shortly before trial, this class
of items was merely substituted for another – “tractor battery box covers and mack truck
battery box covers.”

¶11. We hold that Fulton’s indictments did not describe with sufficient particularity the
essential facts constituting the offense charged. Accordingly, the trial court erred in denying
Fulton’s motion to quash the indictment.

II. Whether the amendment of Fulton’s indictment was one of
substance or form.

¶12. Fulton argues that the State could not amend his indictment to change the description
of the stolen property he allegedly received, because such an amendment would be one of
substance rather than form. “All indictments may be amended as to form but not as to the
substance of the offense charged[.]” URCCC 7.06. “[A] change in the indictment is
permissible if it does not materially alter facts which are the essence of the offense on the
face of the indictment as it originally stood or materially alter a defense to the indictment as
it originally stood so as to prejudice the defendant’s case.” Miller v. State, 740 So. 2d 858,
862 (Miss. 1999) (quoting Greenlee v. State, 725 So. 2d 816, 821 (Miss. 1998)) (quotations
omitted). An amendment to the substance of a charge must be made by a grand jury. Eakes
v. State, 665 So. 2d 852, 860 (Miss. 1995). The Court of Appeals found that the change in
the description of the stolen property in Fulton’s indictment was one of form rather than
substance, because the amendment did not change the offense charged and did not remove
any defenses available under the original indictment. Fulton, 2013 WL 3886021, at *3. The
Court of Appeals also found that Fulton was given a fair opportunity to present a defense to
the amended indictment. Id.

¶13. We find that the Court of Appeals’ analysis of Fulton’s argument is incomplete, as the
court did not analyze whether the amendment of Fulton’s indictment “materially alter[ed]
facts which are the essence of the offense on the face of the indictment as it originally stood,”
another mark of a substantive amendment. Miller, 740 So. 2d at 862. This Court previously
has held that the description of an item in an indictment may be changed by amendment if
the change supplements, but does not vary, the description of the property. Davis v. State,
181 Miss. 239, 179 So. 740 (1938). In Davis, the defendant was charged with grand larceny2
for the theft of three horses and a cow. Id. The State later amended the defendant’s
indictment to provide more specific descriptions of two of the stolen animals. Id. On appeal,
this Court affirmed the amendment of the indictment, rejecting the defendant’s argument that
the amendment was one of substance. Id. This Court provided the following reasoning:
We are of the opinion that the court properly allowed this indictment; that it
did not vary the description, but merely supplemented it, and that the original
indictment probably would have been sufficient; and that such amendment did
not constitute a new case or a new description which would prevent the
appellant from understanding the offense with which he was charged.
Id. at 741 (emphasis added).

¶14. In this case, unlike in Davis, the amendment to Fulton’s indictment did not
supplement the description of the stolen property he was alleged to have received. On the
contrary, “tractor battery box covers and mack truck battery box covers,” the stolen items
allegedly received, were not included in Fulton’s original indictment at all. And a battery box
cover is part of a vehicle, while batteries and battery cables clearly are not. We find that
completely changing the stolen property alleged to have been received by the defendant, an
essential element of the crime of receiving stolen property, “materially alter[s] facts which
are the essence of the offense on the face of the indictment as it originally stood.” Miller,
740 So. 2d at 862. Thus, we cannot say that the amendment to Fulton’s indictment was one
of form. Because the State’s proposed amendment to Fulton’s indictment was one of
substance rather than form, only the grand jury had the authority to approve such an
amendment. Accordingly, we must reverse the holding of the Court of Appeals on this issue,
as well as the judgment of the trial court, and vacate Fulton’s conviction. See, e.g., Hall v.
State, 127 So. 3d 202, 207 (Miss. 2013) (holding that, upon conviction of a crime for which
the defendant was not properly indicted, the judgment of conviction must be set aside,
dismissed, or vacated and remanded, and finding “no legal authority to acquit [the defendant]
by reversing and rendering judgment”).

CONCLUSION

¶15. For the foregoing reasons, we reverse the Court of Appeals’ judgment that the
indictment was sufficient, as well as the judgment of the Lowndes County Circuit Court, and
vacate Fulton’s conviction.

¶16. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE
JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS REVERSED AND
THE CONVICTION IS VACATED.
DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR.

Dunbar Named to The Best Lawyers in America®

Jack Dunbar

Jack Dunbar

Holcomb Dunbar attorney Jack Dunbar recently selected for inclusion in The Best Lawyers in America®. This marks the 32nd year of Mr. Dunbar’s selection. Selection for Best Lawyers is based on an exhaustive peer-review survey of over 4 million confidential evaluations by the top attorneys in the country. The Best Lawyers® publication has been described by The American Lawyer as “the most respected referral list of attorneys in practice.”

Dunbar is a past president of the Mississippi Bar Association and was a member of the American Bar Association’s (ABA) Board of Governors from 1994 to 1997, serving as a member of the Board’s Executive Committee in 1997. He also served as a member of the ABA’s House of Delegates. Dunbar is the 2010 recipient of Mississippi Bar Foundation’s 2010 Professionalism, A/V rated by Martindale Hubbell, a Fellow of both the Mississippi and American Bar Associations.

Holcomb Dunbar is an Oxford, MS law firm representing local, regional, and national clients. The firm specializes in litigation, including insurance defense, product liability, medical malpractice, complex bankruptcies, and white collar crime. Holcomb Dunbar is the Mississippi member of TAGLaw, an invitation-only network of 140 law firms located in more than 100 countries and has earned recognition as a “Go-To” law firm in the area of litigation from Corporate Counsel magazine. The current firm was organized in 1970, but traces its roots to 1885 through its predecessor firms. For more information, visit www.holcombdunbar.com.

 

Insurance Law From A to Z Series – Subrogation

Summary Mississippi Insurance Law CoverIt’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”  This was put together by our litigation group  who practice in the insurance law arena.  Of course, if you have questions about these or any other topics please do not hesitate to contact us.

This week’s installment – Subrogation

Mississippi has adopted the “made whole” rule in that the insurer is not entitled to subrogation until the insured has been completely compensated.  The made whole rule cannot be overridden by contractual language.  Hare v. State, 733 So. 2d 277, 284 (Miss. 1999).

The UM Act provides the right of subrogation to the UM carrier against the tortfeasor to the extent any UM benefits have been paid to the insured as a result of the tortfeasor’s negligence. Miss. Code Ann. § 83-11-107.   The insurer also has the right to receive notice in the event the named insured institutes action against the tortfeasor.  Miss. Code Ann. § 83-11-105.  As noted above, the UM carrier’s right to subrogation is secondary to the insured’s right to receive a full recovery.  Dunham v. State Farm Mut. Auto. Ins. Co., 366 So. 2d 668, 672 (Miss. 1979). The “made whole” rule has been held NOT to apply to UM carrier’s right to offset liability limits of the tortfeasor.

UM carriers may be precluded from a subsequent subrogation suit against the tortfeasor when the insured executes a release of the tortfeasor in consummation of a settlement with or without the UM carrier’s knowledge or consent.  St. Paul Property and Liability Ins. Co. v. Nance, 577 So. 2d 1238, 1241 (Miss. 1991).  Releasing the tortfeasor without the carrier’s consent usually triggers an exclusion of coverage in standard policies.

__________________

The information contained in this post is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Dunbar.

Mississippi New DUI Law

Doug Hollowell Attorney

Doug Hollowell

Mississippi New DUI Law: Nonadjudication, Expunction, and the Ignition-Interlock

By: Doug Hollowell

As school and football season begin in Oxford, residents, students, and visitors alike should inform themselves on Mississippi’s New DUI laws. Pursuant to House Bill 412, these changes to Mississippi Code Annotated § 63-11-30 will go into effect on October 1, 2014. The new provisions are controversial to say the least, as many believe the new fines and requirements drastically punish first time offenders. In a sort of balancing act, however, the law provides opportunities to those who are eligible. The major changes involve the ability to non-adjudicate and/or expunge a first DUI that meets certain criteria, and the newly required ignition-interlock system, which will completely reshape the DUI landscape of Mississippi enforcement.
The Oxford Police Department has long implemented a two-man special task force who patrol the roads for the specific purpose of DUI enforcement. Safety is the chief concern in most any university town. Under Mississippi Code Annotated § 63-11-30, it is unlawful for a person to drive or otherwise operate a vehicle within this state if the person:

(a) Is under the influence of intoxicating liquor;
(b) Is under the influence of any other substance that has impaired the person’s ability to operate a motor vehicle;
(c) Is under the influence of any drug or controlled substance, the possession of which is unlawful under the Mississippi Controlled Substances Law; or
(d) Has an alcohol concentration in the person’s blood, based upon grams of alcohol per 100ml of blood, or grams of alcohol per 200L of breath, as shown by a chemical analysis of the person’s breath, blood or urine administered as authorized by this chapter; of:
(i) .08% or more for a person who is above the legal age to purchase alcoholic beverages;
(ii) .02% or more for a person who is below the legal age to purchase alcoholic beverages;
(iii) .04% or more for a person operating a commercial motor vehicle.

Under the new law, after a person is convicted of a first offense DUI, the Court will order him or her to:

1) Pay a fine not less than $250.00 but not more than $1,000.00, or imprisoned for not more than 48 hours in jail, or both (the Court may substitute attendance at a victim impact panel instead of 48 hours in jail);
2) Attend and complete an alcohol safety education program within 1 year;
3) Surrender his or her driver’s license and obtain a new driver’s license that is restricted to the operation of vehicles equipped with an ignition interlock device.

This ignition interlock system must be used for a period of 90 days. Failure to obtain an ignition interlock system and restricted license will result in a license suspension for 90 days. The person convicted of the first offense DUI bears the cost of the ignition interlock and its installation, and must also pay monthly fees for monitoring and calibration. The law will have a penalty for anyone caught blowing into the device for another person, and devices will contain further anti-circumvention features.
As mentioned above, the new law introduces more than just harsher punishments and mandatory ignition-interlock use. The ability to non-adjudicate a first offense DUI has also been expanded. Nonadjudication refers to a process first-time offenders can use to avoid a conviction. During nonadjudication, a judge will accept a plea of guilty, but will not enter the plea, allowing the offender to complete court-ordered conditions. Upon completion of the conditions, the earlier guilty plea is put aside, and the judge will order the case non-adjudicated.
A person is eligible for nonadjudication only once. A qualifying first offense is one where the breath test was not refused unless the court provides written findings on why nonadjudication is being allowed where a breath test was refused. A court will order a person seeking nonadjudication to:

1) Pay the nonadjudication fee;
2) Pay all fines, penalties, and assessments that would have been imposed for conviction;
3) Attend and complete an alcohol safety education program as provided in Section 63-11-32;
4) Install an ignition interlock device on every motor vehicle driven by the person, obtain an interlock restricted license, and maintain that license for 120 days; failure to obtain an interlock restricted license will result in a 90 day driver’s license suspension;
5) Obtain from the interlock vendor proof that the person has not had violations of an ignition interlock device.

Other conditions to be imposed by the court may include, but are not limited to, alcohol or drug screening, or both, proof that the person has not committed any other traffic violations while under court supervision, proof of immobilization or impoundment of vehicles owned by the offender if required, and attendance at a victim-impact panel. The court may enter an order of nonadjudication only if the court finds, after a hearing, that the offender completed all conditions imposed by law and the court.
Finally, the new law allows eligible minors and first offense DUI offenders the ability to expunge their record of the conviction (though it eliminates the eligibility for holders of a commercial driver’s license). Any eligible person must wait at least 5 years after the successful completion of all terms and conditions of the sentence imposed for the conviction before petitioning the court for expungement. Expunction is further eligible only to those:

1) Who did not refuse to submit to a test of his or her blood or breath;
2) Whose blood alcohol concentration tested below (0.16%) if results are available;
3) Who has not been convicted of and does not have pending any other offense of driver under the influence; and
4) Who has provided the court with justification as to why the conviction should be expunged.

If you have been charged with driving under the influence, or if you have any further questions regarding Mississippi’s new DUI laws, please contact Doug Hollowell and Holcomb Dunbar Law Firm at 662-234-8775.

First D.U.I Arrest is History

Bad parking lot markingsEver wondered when the first arrest was made for driving under the influence?

And the answer is:

London taxi driver, George Smith, became the world’s first person ever arrested for D.U.I. following an accident in which he slammed his cab into a building. Smith confessed and quietly paid his 25 shilling fine. The year was 1897.

It took another 13 years before the first D.U.I laws appeared in the United States, beginning in New York and then in California shortly thereafter.

 

 

 

Mississippi Supreme Court Win Holcomb Dunbar Client

Mississippi Supreme Court win for Holcomb Dunbar Attorneys Brad Best and Brad Golmon, and their client in a disputed boundary line case which arose in Lafayette County, Mississippi.  The full opinion is below:

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2012-CT-00610-SCT

JERRY P. MIZE
v.
WESTBROOK CONSTRUCTION COMPANY OF
OXFORD, LLC, JIMMY ALVIS LEWIS, JR., KAY
W. LEWIS AND JIMMIE WALLER

ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 03/20/2012
TRIAL JUDGE: HON. GLENN ALDERSON
TRIAL COURT ATTORNEYS: BRADLEY T. GOLMON
BELA J. CHAIN, III

COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CHANCERY
COURT

ATTORNEYS FOR APPELLANT: R. BRADLEY BEST

ATTORNEYS FOR APPELLEES: WILLIAM TROY SLOAN
BELA J. CHAIN, III
NATURE OF THE CASE: CIVIL – REAL PROPERTY
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED IN PART. THE
JUDGMENT OF THE CHANCERY COURT OF
LAFAYETTE COUNTY IS REVERSED IN
PART AND THE CASE IS REMANDED –
09/04/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:
¶1. This case arises from a property-line dispute between neighboring landowners in
Lafayette County, Mississippi. Jerry Mize filed suit to confirm title to property described
in a recorded corrected warranty deed. Westbrook Construction Company of Oxford, LLC,
Jimmy A. Lewis, Jr., Kay W. Lewis, and Jimmie Waller, hereinafter referred to as
Defendants, answered the complaint, counterclaimed to quiet and confirm their titles, and
sought damages for slander of their respective titles. The chancellor found for Defendants
and awarded damages and attorneys’ fees on their slander-of-title claims. The Court of
Appeals affirmed. In his petition for certiorari, Mize raises multiple issues. We granted
certiorari to consider whether all the elements of a slander-of-title claim were met. Our
review is limited to whether there was sufficient evidence to support a slander-of-title action.1
FACTS AND PROCEDURAL HISTORY
¶2. Mize purchased fifty-six acres in Lafayette County. Without dispute, the vast
majority of this property lies north of County Road 206. However, in reliance upon what the
prior landowner (Estelle Kiger) communicated to him prior to the conveyance, Mize was led
to believe that a small portion of the tract lay to the south of the road. Defendants, owners
of properties south of County Road 206, claimed that their properties extended to the center
line of the road, as described in their deeds.
¶3. To resolve the issue, Mize commissioned W.L. Burle Engineering of Oxford to survey
his property. Jim Cannatella performed the survey. Cannatella has a B.S. in civil engineering.
He maintains licenses as a professional engineer and professional surveyor in multiple states,
including Mississippi. He is affiliated with multiple professional surveying and engineering
associations. He has more than twenty years of experience in this field. His survey opined
that Mize’s property crossed County Road 206 and included a portion on the southern side
of the road that was claimed by Defendants. Cannatella prepared a property description based
on his findings and provided this description to Mize’s attorney, who drafted a corrected
deed for Mize that closed the property.2 Subsequently, Kiger executed the corrected deed,
and Mize filed the deed.
¶4. Westbrook declined to recognize Cannatella’s survey and Mize’s corrected deed.
Westbrook relied on its warranty deed that included a property description drawn from a
survey conducted in 2004 by Robert Karl Sealy, who is also a professionally licensed
surveyor with more than twenty years of experience. Sealy’s survey set the northern
boundary of Westbrook’s property as the center line of County Road 206.
¶5. Unable to resolve the boundary dispute, Mize filed an action in the Chancery Court
of Lafayette County to quiet and confirm title to the property described in his Corrected
Deed. Defendants answered and filed counterclaims. Their counterclaims sought to quiet and
confirm their own titles and alleged that Mize had slandered their respective titles. After a
two-day trial, the chancellor accepted Sealy’s survey3 and established the center line of
County Road 206 as the boundary between the properties. The chancellor also found that,
even if Mize’s property extended slightly south of the road, Defendants had gained title
4 Even though Westbrook had owned the property only since 2005, the court ruled
that its predecessors in title made use of the property for agricultural purposes in an open and
notorious manner for the statutory period, thereby satisfying adverse possession.
5 This amount was calculated based on the amount of interest that Westbrook paid on
its mortgage from the date of a scheduled sale of the property. The court determined that, but
for Mize’s suit, Westbrook would have sold the property and used the proceeds to pay off
the mortgage.
STANDARD OF REVIEW
¶6. This Court will reverse a chancellor only if he or she commits manifest error. Ferrara
v. Walters, 919 So. 2d 876, 880 (Miss. 2005). The chancellor’s decision must be upheld
unless it is found to be contrary to the weight of evidence or is manifestly wrong. Id. We
will accept findings made by the chancellor regarding questions of fact and credibility of
witnesses, so long as the evidence in the record tends to reflect the chancellor’s findings.
Dunn v. Dunn, 786 So. 2d 1045, 1049 (Miss. 2001). However, this Court may overrule the
chancellor if the chancellor’s findings are clearly wrong or are reflective of an erroneous
legal standard. Id.
DISCUSSION
I.
Said the chancellor i 6 n his Final Decree, “The claim of Plaintiff Jerry P. Mize to the
lands South of Lafayette County Road No. 206 was made with malice, as defined and
contemplated in Walley v. Hunt, 212 Miss. 294, 54 So. 2d 393 (Miss. 1951), and the later
reported decisions relying thereon for authority, as evidenced by the removal of the culvert
from the road ditch on the South side of Lafayette County Road No. 206 during the
pendency of litigation, and the maintaining of this action after it should have been apparent
that neither Estelle Kiger nor her father ever claimed any land South of Lafayette County
Road No. 206 and intended for said road to be a public road.”
¶7. To succeed in an action for slander of title, a claimant must show that another has
falsely and maliciously published statements that disparage or bring into question the
claimant’s right of title to the property, thereby causing special damage to the claimant.
Walley v. Hunt, 212 Miss. 294, 304, 54 So. 2d 393, 396 (1951). The slander may consist of
a writing, a printing, or words of mouth, but they will provide grounds for a cause of action
only if the statements have been made falsely and maliciously. Id. Whatever the statement,
however, in order for it to form the basis of a right of action, it must have been made not only
falsely but maliciously. Id. (citations omitted).
¶8. Malice, however, may be inferred from one’s actions. Phelps v. Clinkscales, 247 So.
2d 819, 821 (Miss. 1971). “The law determines malice by external standards; a process of
drawing inferences by applying common knowledge and human experience to a person’s
statements, acts, and the surrounding circumstances.” Id. As such, the chancellor’s finding
of malice should be given great deference and can be reversed only if it is clearly erroneous.
Mason v. Southern Mortgage Co., 828 So. 2d 735, 739 (Miss. 2002). Here, the chancellor
found malice in Mize’s actions; however the record is silent as to whether Mize knowingly
made a false publication.6
A. The Corrected Deed
¶9. This Court has held that the mere filing of a corrected deed is not sufficient to show
malicious intent. Wise v. Scott, 495 So. 2d 16, 21 (Miss. 1986). Wise involved a dispute of
mineral rights between parties following a conveyance of a mineral deed. Id. at 20. After
realizing that there had been a drafting error in the original deed that had a material effect on
the parties’ property rights, the defendant sought to correct the error through a corrected
deed. Id. at 21. The plaintiffs successfully sued the defendant for slander of title in chancery
court. Id. On appeal, this Court reversed the chancery court, finding that malice cannot be
shown by the mere filing of a corrected deed, if the party who filed the corrected deed had
a bona fide belief of ownership. Id.
¶10. Mize testified that the prior owner, Kiger, had told him that the property extended
slightly south of County Road 206. To confirm or refute this claim, Mize commissioned a
survey of his property by Cannatella. Cannatella’s survey revealed that the property did
extend south of County Road 206, and the property description under the original warranty
deed did not close. Cannatella then prepared a written description of the property that closed.
No evidence was presented, nor does the record reflect, that Mize and Cannatella engaged
in a collusive or fraudulent effort in obtaining the survey or preparing the property
description.
¶11. Next, Mize retained an attorney to draft a corrected deed using Cannatella’s
description that closed and assisted Mize with the filing of the corrected warranty deed after
the previous owners of his property, the Kigers, executed the corrected deed. Given Mrs.
Kiger’s recollection of the property and the results of the survey, Mize was entitled to rely
on the Kigers’ execution of the corrected warranty deed, absent any collusive or fraudulent
behavior between Mize and the Kigers. Just as no such evidence exists that suggests
Cannatella conducted a fraudulent survey, likewise, no evidence exists that Mize obtained
the Kigers’ signatures through guise, chicanery, or any otherwise invidious method.
¶12. Finally, in reliance of Cannatella’s survey and Kiger’s prior representations and
execution of a corrected deed, Mize filed the corrected deed with the assistance of his
attorney. Here again, nothing in the record suggests that Mize’s attorney acted improperly.
No evidence was presented that implies that Mize falsely or maliciously published the
corrected deed. The filing of the corrected deed, which was based on an independent
professional survey and the statements of the grantors of the property, without proof of
falsity, guile, or trickery, does not satisfy the elements of false publication or malice. Absent
both, no slander-of-title action can succeed.
B. The Filing of Suit
¶13. Communications published in due course of a judicial proceeding are absolutely
privileged and will not sustain an action for slander of title. Dethlefs v. Beau Maison Dev.
Corp., 511 So. 2d 112, 117 (Miss. 1987) (citing Krebs v. McNeal, 222 Miss. 560, 76 So. 2d
693 (Miss. 1955)). For example, the filing of a lis pendens notice in the due course of a
judicial proceeding will not give rise to slander of title. Dethlefs, 511 So. 2d at 117.
Dethlefs involved a dispute over the existence of an easement and whether filing suit to
determine the existence of that easement constituted slander of title. Id. On appeal, this
Court held that such a filing constitutes an effort to protect one’s title and invokes one’s right
to have his or her case decided by the court. Id. Said the Court, “Since Dethlefs had a valid
right to have her case decided, the filing of a lis pendens notice cannot be slander of title.”
Id.
¶14. All citizens have the constitutional right to petition our courts to adjudicate honest
disputes. When Defendants rejected the findings of the Cannatella survey and the corrected
deed executed by Kiger, Mize exercised his right to petition a court to confirm and quiet title
to the disputed property. If an honest dispute arises as to the ownership of property, such
action is akin to the same privilege accorded to the filing of a lis pendens notice. Like
Dethlefs, Mize had a legal right to have his case decided, regardless of the claims of
ownership by Westbrook or any of the other Defendants. See Sellars v. Grant, 196 F. 2d 677,
680 (5th Cir. 1952) (finding that parties in litigation are not required to “accept as true” their
opponents’ “version of the facts of a case”). Mize’s claim was based on Cannatella’s survey,
oral statements, and the executed corrected deed by Kiger. Without doubt, these competing
claims created an valid dispute. However, Mize’s action in filing suit, standing alone, does
not satisfy the false-publication or malice elements to support an action for slander of title.
Mize had a right to pursue his bona fide belief of ownership. All concerned had a right to
have the facts of the case examined by the court for a determination of ownership. Id. Thus,
no slander-of-title action arose from the filing of the suit.
C. Continuation of the Suit
¶15. Malice requires a showing of evil intent or ill will toward another, either through
conduct or statements, without just cause or excuse. Black’s Law Dictionary 1109 (4th ed.
1970). The chancellor focused on two events to find that Mize had acted with malice: 1) the
continuation of the suit following Estelle Kiger’s testimony in her deposition that she never
7 Kiger’s testimony by deposition was submitted into evidence without objection.
meant to sell any of the property owned by the Lewises or Waller and 2) the removal of a
culvert on the south side of County Road 206 during the course of the litigation.
¶16. The chancellor interpreted Kiger’s deposition testimony as an unequivocal denial of
her prior ownership of the property in dispute. Although she did not know the exact location
of the property line, Kiger also testified that the formerly owned property extended south of
County Road 206. Kiger based her testimony on what her father had told her when she was
a girl. She testified that when her father first built the road as a private road, he built it
entirely within their property lines. Kiger’s execution of the corrected deed served as an
affirmation of this belief. Although the chancellor and Court of Appeals correctly found that
Kiger never intended to convey to Mize any of the property owned by Waller or the Lewises,
Kiger explicitly intended to convey to Mize all of the property that she believed she owned,
including property south of County Road 206. The deposition7 simply confirmed that the
property that she intended to convey was that which she thought belonged to her, and not
property owned by Waller or the Lewises.
¶17. Kiger’s testimony was not an unequivocal denial of former ownership to the property
in dispute. The chancellor’s characterization that Mize “blindly” pursued his claim is dubious
given that Mize pursued the claim on the results of the survey, the corrected deed executed
by Kiger, and no direct evidence to support a finding of mala fides by Mize in continuing his
suit. However, the chancellor’s finding of malice is fairly debatable and could support an
inference of malice. Thus we defer to this finding.
¶18. The same deference is not afforded the chancellor in ruling that the removal of the
culvert was a malicious act. This Court has held that a party who commits an act under
reasonable belief of title will not be said to have acted maliciously when committing the act.
Butler v. City of Eupora, 725 So. 2d 158, 161 (Miss. 1998). In Butler, a city maintenance
crew installed a water line on property that was authorized by a digging permit from
Mississippi Department of Transportation (MDOT), even though MDOT’s title had not
officially vested at the time the installation commenced. Id. at 159. Butler, who was the
vested owner at the time of installation, filed suit for slander of title, among other claims.
Id. The chancellor denied recovery to Butler, and we affirmed. We found such damages
were not appropriate for the plaintiff’s claim of slander of title because the city acted with
reasonable reliance on the authorized digging permit and not out of malice. Id. at 161.
¶19. Mize testified that the culvert had become rusted and clogged, causing the diversion
of water across the road. To alleviate this problem, Mize removed the culvert based on his
belief of ownership under the corrected deed and survey.
¶20. Whether we accept or reject the chancellor’s finding of malice does not end our
inquiry. There remains no evidence of a false publication or a finding by the chancellor of
false publication, and absent that element, a slander-of-title claim must fail.
II.
¶21. This Court will reverse a chancellor’s award of damages only if he commits manifest
error. Mason, 828 So. 2d at 739. A claimant who has a bona fide belief of ownership in
disputed property will not be found liable for special damages in an action for slander of title.
Perrien v. Mapp, 374 So. 2d 794, 798 (Miss. 1979). Even if the party seeking damages can
show that he or she endured special damages from the opposing party’s claim of title, such
damages are inappropriate if the claimant asserts ownership in good faith. Id. Similarly,
damages arising from the lost sale of disputed property will not be imposed on a party who,
in good faith, seeks a determination of ownership of the disputed property. Dethlefs, 511 So.
2d at 118.
¶22. Turning again to Dethlefs, this Court held that a claimant in a quiet-title action does
not have to pay any actual or punitive damages to the opposing party for a lost sale of the
property that was halted due to the action. Id. In making that conclusion, we relied on the
same reasoning as to why Dethlefs was not liable for slander of title. Id. One who petitions
the court with a bona fide belief of ownership has every right to have his or her case decided,
therefore, he or she should not be liable to an opposing party for damages incurred from a
lost potential sale of the disputed property due to the pending suit. Id.
¶23. Mize asserted his claim, pursued his action, and presented evidence to support a bona
fide belief of ownership. Having already established that one finding of malice was dubious,
no evidence was presented that Mize falsely published his claim, an essential element. A
successful defense of Mize’s claim does not entitle Defendants to damages from Mize. As
the chancellor committed manifest error in ordering Mize to pay damages to Defendants, we
reverse in part.
CONCLUSION
¶24. No evidence of record supports a finding that all of the elements of a slander-of-title
action were met. Consequently, we reverse the judgment against Mize for slander of title and
the award of damages to Defendants as well as the judgment of the Court of Appeals
affirming it. We do not otherwise disturb the findings and judgment of the Court of Appeals
or chancery court. We remand the case to the Lafayette County Chancery Court for the entry
of a judgment consistent with this opinion.
¶25. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED IN PART.
THE JUDGMENT OF THE CHANCERY COURT OF LAFAYETTE COUNTY IS
REVERSED IN PART AND THE CASE IS REMANDED.
WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER,
PIERCE, KING AND COLEMAN, JJ., CONCUR.

Insurance Law From A to Z Series – Statutes of Limitations

Summary Mississippi Insurance Law CoverIt’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”  This was put together by our litigation group  who practice in the insurance law arena.  Of course, if you have questions about these or any other topics please do not hesitate to contact us.

This week’s installment – Statutes of Limitation

Negligence

Most negligence actions are governed by a 3 year statutes of limitations which runs from date of accident/injury.  Miss. Code Ann. § 15-1-49.

The statute provides for a “discovery rule” but only for latent injuries and diseases.  If a person has such a latent injury or disease, then the statute does not start to run until the person discovers, or by reasonable diligence, should have discovered, the injury.  Miss. Code Ann. § 15-1-49 (2).

UM context

A cause of action against an insurer for uninsured-motorist benefits is subject to a 3 year statute of limitations.  Miss. Code Ann. § 15-1-49.  The limitations period, however, does not always start at the date of the accident or injury.  Instead, it commences when the insured knew or should have known that the tortfeasor was uninsured or underinsured.  Montgomery v. Safeco Ins. Co. of Ill., No. 2011-CA-00225-COA (Miss. Ct. App. March 20, 2012).  The statute begins to run when it can be reasonably known that the damages suffered exceed the limits of insurance available to the alleged tortfeasor.  Jackson v. State Farm Mut. Auto. Ins. Co., 880 So. 2d 336 (Miss. 2004).

Receipt by an injured insured of an accident report reflecting that the alleged tortfeasor possesses no insurance provides reasonable knowledge that damages suffered exceed the limits of insurance available for purposes of running the statute of limitations.  Montgomery v. Safeco Ins. Co. of Ill., No. 2011-CA-00225-COA (Miss. Ct. App. March 20, 2012).

Tolling/Agreement

The Mississippi Supreme Court recently ruled that statute of limitations cannot be lengthened by agreement.  This prohibition against tolling agreements applies to any statute of limitations in Chapter 15, but not to limitations in other chapters of the code.  However, the courts will look to determine whether a party is equitably estopped from asserting the statute of limitations under the circumstances.  Miss. Code Ann. § 15-1-5.  Townes v. Rusty Ellis Builder, Inc., No. 2011-CA-164-SCT (Miss. October 4, 2012).

Continued promises of payment can create a situation where the court will find that a carrier waived the statute.  See Douglas v. Parker Elec. v. Mississippi Design and Devel. Corp., 949 So.2d 874 (Miss. 2007).  However, simply continuing to negotiate has been held insufficient to toll or waive statute.

Intentional Torts

Many intentional torts, including intentional infliction of emotional distress, are governed by a 1-year statute of limitations.  Miss. Code Ann. § 15-1-35.

Malpractice

Medical malpractice actions have a 2 year statute of limitations which runs from when the alleged action or omissions occurred, or when with reasonable diligence might have been first discovered.  Notice must be given 60 days prior to filing of the suit which will extend the statute of limitations if it would have expired during the 60 days.  Miss. Code Ann. § 15-1-36.

There is a seven year statute of repose which bars any action not brought within that time period unless it involves a foreign object or fraudulent concealment.  Id.

Minors

Statute does not start running on minors until they turn 21 (even if they are emancipated), then it starts to run for the applicable statute of limitations for that injury.  Miss. Code Ann. § 15-1-59.

Wrongful Death

Statute runs from underlying event that caused injury.  The statute applicable to the particular injury controls (i.e. medical malpractice claims have 2 years from injury, intentional torts have 1 year from injury, general negligence claims have 3 years from injury).  This is a change in the law since 2006.  See Jenkins v. Pensacola Health Trust, Inc., 933 So. 2d 923 (Miss. 2006) (previous law applied a 3-year statute from the date of death).

The wrongful death statute, Miss. Code Ann. 11-7-13, encompasses both survival claims and wrongful death claims.  The Mississippi Supreme Court has recently clarified the confusion in this area and held that the statute begins to run from the underlying tort that caused the death in a survival claim; however, the statute begins to run from the time of death in a wrongful death claim.  Caves v. Yarbrough, M.D., 991 So. 2d 142, 149-50 (Miss. 2008).

Survival claims are claims in which if death had not ensued, the injured party could have maintained an action and recovered damages.  A true wrongful death claim belongs solely to the decedent’s beneficiaries and is a claim brought to recover damages one person’s death causes to another (i.e. loss of love, society and companionship).  Id. at 149.  See also, Wrongful Death.

__________________

The information contained in this post is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Dunbar.

DUI checkpoints

 

Doug Hollowell

Doug Hollowell

By Doug Hollowell:

This Friday, September 5th, the Oxford Police Department will be conducting 12-hour, no-refusal DUI checkpoints.

In Mississippi, all drivers are considered to have given “implied consent” to provide a blood or breath sample if an officer is lawfully requesting it. Generally, Mississippi officers will offer an individual suspected of DUI the ability to refuse to submit to these chemical tests. If the tests are refused, an officer must obtain a search warrant to obtain a sample. At a “no refusal” checkpoint, this process is streamlined.

If an arrestee refuses to submit to a chemical test, a judge will be on call to approve or deny a warrant which would allow an officer to obtain a sample- even over the objection or refusal of the motorist. Licensed nurses will then draw the blood of an arrestee to determine blood alcohol content. The entire process is usually videotaped to provide evidence for a later court date, if necessary.

The fourth amendment of the U.S. constitution prohibits unreasonable search and seizure (unless law enforcement authorities have probable cause to believe that a crime has been committed). The U.S. Supreme Court, however, found DUI checkpoints met the Fourth Amendment standard of “reasonable search and seizure.” The Supreme Court cited a “substantial government interest” to reduce drunk driving, and believed the DUI checkpoints were rationally related to achieving that goal.

In 2013 the Supreme Court ruled, “…in drunk driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.” The exigency in this case, noted the Court, must be determined on an individual basis dependent on the totality of the circumstances.

These Supreme Court rulings set forth the minimum privacy rights guaranteed by the United States Constitution. The State of Mississippi, and the “no refusal” DUI checkpoints, must comply with the these decisions.

W. Doug Hollowell, III

Insurance Law From A to Z Series – Spoliation of Evidence

Summary Mississippi Insurance Law CoverIt’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”  This was put together by our litigation group  who practice in the insurance law arena.  Of course, if you have questions about these or any other topics please do not hesitate to contact us.

This week’s installment – Spoliation of Evidence

Spoliation of evidence is not an independent cause of action in Mississippi.  Richardson v. Sara Lee Corp., 847 So. 2d 821, 824 (Miss. 2003).

Mississippi case law holds that the destruction of evidence results in a negative presumption or inference against the party who destroys the evidence.  Thomas v. Isle of Capri Casino, 781 So.2d 125, 133-34 (Miss. 2001).  The Mississippi Supreme Court has held that where a (medical) record required by law to be kept is unavailable due to negligence, an inference arises that the record contained information unfavorable to the defendant, and the jury should be so instructed.  Delaughter v. Lawrence County Hosp., 601 So.2d 818, 822 (Miss. 1992). See also,

Estate of Perry ex rel. Rayburn v. Mariner Health Care, Inc., 927 So.2d 762 (Miss.Ct.App. 2006).

 

__________________

The information contained in this post is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Dunbar.

Insurance Law From A to Z Series – Seat Belt Defense

Summary Mississippi Insurance Law CoverIt’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”  This was put together by our litigation group  who practice in the insurance law arena.  Of course, if you have questions about these or any other topics please do not hesitate to contact us.

This week’s installment – Seat Belt Defense

Evidence that a plaintiff failed to use a seatbelt may not be used to prove contributory negligence.  Miss. Code Ann. § 63-2-3.

However, there are other instances in which the non-usage may be relevant.  For example, the defendant may properly introduce evidence as to whether the plaintiff was using a seatbelt at the time of the accident in order to establish facts concerning the causation, nature, and extent of injury.  In these situations the judge will consider whether:  the evidence of the non-usage has probative value other than proving negligence of the plaintiff; whether the prejudicial effect substantially outweighs the probative value; and whether other evidentiary rules permit the introduction of the evidence. Estate of Hunter v. General Motors Corp., 729 So. 2d 1264, 1269 (Miss. 1999).

 

__________________

The information contained in this post is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Dunbar.

Walk Don’t Run from the Police

Brad Best

By: Brad Best

Earlier this week, the Mississippi Supreme Court reminded us of the warnings we all used to hear as kids- –

“Walk, Don’t Run.”

In this new case, our State Supreme Court ruled that it is okay to walk away from the police, but there will be no running.  After receiving an anonymous tip that a group of “young black men” were selling drugs on a corner, a Greenville police officer drove to the scene and tried to stop the first young black male he encountered.  He flashed his blue lights and commanded that the young man come talk to him.  The MSSC held that neither the anonymous tip nor the observed activity was sufficient to create probable cause for a Terry Stop (a brief detention of a person officers are permitted to make if they have a reasonable suspicion that a crime has been or is about to be committed).

The Mississippi Court noted that the United States Supreme Court has previously held that where an officer lacks reasonable suspicion or probable cause and approaches an individual, that “individual has the right to ignore the police and go about his business.”  As the Court noted “any refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” However, “going about your business” apparently does not extend to rapidly moving in a direction that generally takes you away from the officer.  If you run away from the officer, rather than simply ignoring him, that is evidence of evasion and therefore provides the required suspicion to detain.  “Headlong flight – wherever it occurs – is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Since the suspect in this case ran rather than walked away from the officer, the subsequent arrest for possession of drugs was valid, even though the officer had no right to detain him initially.

Maybe all those constant warnings we received from our parents, teachers and lifeguards were more helpful that we ever appreciated at the time.

Here’s the Full Opinion:

IN THE SUPREME COURT OF MISSISSIPPI NO. 2012-CT-00460-SCT TAZARIUS COOPER a/k/a T.C.

v.

STATE OF MISSISSIPPI

 

ON WRIT OF CERTIORARI

EN BANC. 02/17/2012

AFFIRMED – 08/28/2014 DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1. Based on a citizen’s complaint that “young men . . . young black men . . . are standing out on the sidewalks, corners, selling drugs” at the 500 block of Union Street in Greenville, Mississippi, police proceeded to that area, where they spotted Tazarius Cooper, a young, black male. The police officer turned on his blue lights, exited his vehicle, and attempted to conduct an investigatory stop by ordering Cooper to “come here and let me talk to you.” Before the officers could restrain him in any way, Cooper ran. The officers gave chase, following Cooper into a home, where Cooper abandoned a bag containing a blue substance that tested positive for the drug known as ecstasy. The trial court denied Cooper’s motion to suppress the evidence, and Cooper was convicted. We find that the citizen’s complaint was insufficient to establish a reasonable suspicion of Cooper, or to conduct a Terry stop.1 But because Cooper was not stopped, and because Cooper lacked standing to challenge the search of a home which did not belong to him, we affirm the trial court’s decision. FACTS AND PROCEDURAL HISTORY

¶2. Joe Edney, an investigator for the Special Operations Unit of the Greenville Police Department, testified that Lieutenant Redmond2 received a complaint from an anonymous caller that “young men, young black men, are standing out on the sidewalks, corners, selling drugs” at the 500 block of Union Street in Greenville, Mississippi. Edney was not informed of the anonymous caller’s identity, merely that it was a call from a “concerned citizen.” At Redmond’s direction, Edney and Investigator Charlton Smith3 proceeded to Union Street in the unit’s unmarked, black Ford F-250 truck.

¶3. Upon arrival at Union Street, Edney and Smith found two men standing “in the sidewalk area” in front of a house located on the 500 block. Edney recognized Cooper from prior narcotics calls. The officers activated the truck’s blue lights and exited the vehicle, and Edney commanded Cooper to “come here and let me talk to you.” Cooper, however, began 1See Terry v. Ohio, 392 U.S. 1, 88 S. Ct.1868, 20 L. Ed. 2d 889 (1969). 
2Lt. Redmond did not testify at the hearing on the motion to suppress or at trial. 3Smith was also a member of the Special Operations unit. 2 running toward the house, forced the door open, and continued inside. Edney chased Cooper. The other man – Cooper’s friend, Dennis Wright – immediately dropped to his knees and was detained by Smith.

¶4. Edney testified that many of the structures on this block were rundown and dilapidated. In fact, he described this particular house as “very decrepit, [with] holes in the walls, holes in the floor, unlivable.” As Edney went up the stairs to enter the house in pursuit of Cooper, he saw Cooper throw a plastic baggie containing a blue substance into a hole in the wall inside the house. According to Edney, “you could see into the living room to where the drywall had either fallen off the wall or that somebody had intentionally took it down, but at that time I saw him throwing something in there.”

¶5. Edney entered the house and detained Cooper. He then retrieved the discarded bag from the hole in the wall and discovered that it contained twenty-one blue pills with dolphin imprints, which field-tested positive for ecstasy.

¶6. Edney arrested Cooper and charged him with possession with intent to distribute. Based upon Edney’s hearing testimony and argument from counsel, the trial court denied Cooper’s motion to suppress and ordered that “all evidence discovered during the search is admissible at trial.” The trial court did not support its conclusion with analysis on the record or in the written order.

¶7. Cooper was convicted, and the Court of Appeals affirmed on appeal, finding that the anonymous tip was sufficient for Edney to make the initial investigatory stop.4 Analyzing 4Cooper v. State, 2012-KA-00460-COA,____ So. 3d ____, 2013 WL 5614321, *4 (¶ 20) (Miss. Ct. App. Oct. 15, 2013). 3 the tip’s reliability, the court found that the “anonymous tip contained sufficient evidence to warrant further investigation” because it “was based on fresh, first-hand information witnessed by the anonymous caller, who gave details about the race and sex of the suspects along with the criminal activity going on at the particular location on Union Street” and because the block was known for heavy drug-trafficking activity.5 According to the Court of Appeals, these facts, together with Edney’s recognition of Cooper from prior drug-related complaints after arriving to investigate the tip, “corroborated the anonymous tip and gave the officers reasonable suspicion to make an investigatory stop.”6 Further, the court found both exigent circumstances and probable cause to make the warrantless entry into the home, arrest Cooper, and seize the bag of ecstasy.7

¶8. Cooper filed a petition for writ of certiorari with this Court, arguing that the Court of Appeals “incorrectly applied the law concerning ‘reasonable suspicion’ based on an anonymous tip sufficient to warrant an investigatory stop.” Because the Court of Appeals reached the correct result, but for the wrong reasons, we granted Cooper’s petition. STANDARD OF REVIEW

¶9. We employ a mixed standard of review for Fourth Amendment claims.8 Determinations of reasonable suspicion and probable cause are subject to de novo review, 5Id. at *5 (¶23) (citing Baker v. State, 991 So. 2d 185, 186 (Miss. Ct. App. 2008)). 6Cooper, 2013 WL 5614321, at *4.
7Id. at *6 (¶ 28).
8Dies v. State, 926 So. 2d 910, 917 (Miss. 2006). 4 while determinations of “historical facts [are] reviewed under the substantial evidence and clearly erroneous standards.”9 ANALYSIS Edney’s Attempted Stop of Cooper

¶10. The Fourth Amendment of the U.S. Constitution and Article 3, Section 23 of the Mississippi Constitution guarantee a person’s right to be free from unreasonable searches and seizures.10 This Court previously has found: Police activity in preventing crime, detecting violations, making identifications, and in apprehending criminals may be divided into three types of action: (1) Voluntary conversation: An officer may approach a person for the purpose of engaging in a voluntary conversation no matter what facts are known to the officer since it involves no force and no detention of the person interviewed; (2) Investigative stop and temporary detention: To stop and temporarily detain is not an arrest, and the cases hold that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest; (3) Arrest: An arrest may be made only when the officer has probable cause.11

¶11. So it is clear that before conducting an investigatory, or Terry stop, officers are required to have “reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in a felony. . . or ‘some objective manifestation that the 9 Id. 10See U.S. Const. amend IV; Miss. Const. art 3, §23. 11Williamson v. State, 876 So. 2d 353, 355 (Miss. 2004) (quoting Singletary v. State, 318 So. 2d 873, 876 (Miss. 1975)). 5 person stopped is or is about to be engaged in criminal activity.’”12 Reasonable suspicion can arise from an officer’s personal observations, a tip by a trusted police informant, or by anonymous tip.13 And an anonymous tipster’s “veracity,” “reliability,” and “basis of knowledge” are relevant considerations in establishing reasonable suspicion.14

¶12. Although the U.S. Supreme Court previously has opined that “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity,”15 it also has held that “there are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.’”16 We have held that “[r]reasonable suspicion is dependent upon the content of the information possessed by the detaining officer as well as its degree of reliability. Both factors – quantity and quality – are considered in the ‘totality of the circumstances.’”17 ¶13. So we are left to determine whether an anonymous tip – “young men, young black men, are standing out on the sidewalks, corners, selling drugs” at the 500 block of Union 12Id. (emphasis added) (quoting Floyd v. State, 500 So. 2d 989, 992 (Miss. 1986)); see also Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). 13Florida v. J.L., 529 U.S. 266, 270-271, 120 S. Ct. 1375, 1378-1379, 146 L. Ed. 2d 254 (2000). 14Alabama v. White, 496 U.S. 325, 328-329, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). 15Id.
16J.L., 529 U.S. at 270 (quoting White, 496 U.S. at 329). 17Williamson, 876 So. 2d at 355 (quoting Floyd, 749 So. 2d at 118). 6 Street – demonstrates the tipster’s veracity, reliability, and basis of knowledge to support a finding of reasonable suspicion before Edney stopped Cooper. We find that it does not.

¶14. This Court previously has found anonymous tips providing police with much more detailed information than the tip in the instant case to be “vague” at the outset, but the officer’s independent investigation and corroboration of the details – before stopping the suspect – established reasonable suspicion for an investigatory stop.18

¶15. For instance, in McClellan v. State, the Columbus police department received a tip that a white male and white female had purchased large quantities of pseudoephedrine (a main ingredient for methamphetamine) at the local Fred’s Dollar Store.19 Officers further investigated the tip and gained a description of the vehicle, “an older-model blue Mustang with an Alabama tag . . . traveling east on the Highway 82 bypass,” which then allowed them to locate and maintain surveillance on the suspects as they made additional purchases at other pharmacies.20 This Court observed that the initial description of the car “may have been somewhat vague,” but we held the stop was proper because the police accumulated many more details about the suspects and their activities before making the stop.21

¶16. Similarly, in Linson v. State, a case with facts similar to this case, police received a tip from a confidential informant that “three black males were selling drugs at the intersection of Kingsway Drive and Brooksdale Drive in Picayune,” an area known for illegal 18Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). 19McClellan v. State, 34 So. 3d 548, 550 (Miss. 2010).
20Id.
21Id. at 552. 7 drug activity.22 Investigating the tip, a police officer found the three black men standing at the intersection as described.23 He then watched the men approach two different vehicles for brief meetings, after which the vehicles would drive away, consistent with drug-trafficking activity.24 Officers detained Linson, and a patdown revealed a .22 caliber revolver in Linson’s pants pocket, which led to his conviction for possession of a firearm by a convicted felon. The Court of Appeals found that Linson’s investigatory stop and frisk were justified because the tip was received from a confidential informant who had been reliable in the past and because of the suspicious activity witnessed when investigating the facts of the tip.25

¶17. The U.S. Supreme Court also determined that an anonymous tip that a “young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun” did not show sufficient indicia of reliability to find reasonable suspicion for an investigatory stop.26 Officers investigated the tip and found three black males at the bus stop, and one of them – J.L. – was wearing a plaid shirt.27 Officers frisked J.L and found a gun; he was then charged for carrying a concealed firearm without a license and possessing a firearm while under the age of 18.28 The Court concluded, “[a]ll the police had to go on in this case was 22Linson v. State, 799 So. 2d 890, 892 (Miss. Ct. App. 2001). 23Id.
24Id.
25Id. at 896. 26J.L., 529 U.S. at 268. 27Id.
28Id. at 268-269. 8 the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.”29 Accordingly, the Court found that police lacked reasonable suspicion to make the initial stop and the fruit of the unlawful search – the gun – was properly suppressed.30

¶18. An anonymous tip that accurately predicts the suspect’s future behavior,as determined after corroboration of the facts by independent police investigation, can provide reasonable suspicion to conduct an investigatory stop.31 For instance, in Alabama v. White, police received an anonymous tip that White would be leaving from “235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lense broken, that she would be going to Dobey’s Motel, and that she would be in possession of about an ounce of cocaine inside a brown attaché case.”32 Investigators observed a woman in the brown vehicle as described, leaving building 235 of Lynwood Terrace Apartments and driving the most direct route to the motel.33 Officers conducted an investigatory stop just before she reached the motel and discovered marijuana in the attaché case and cocaine in her purse.34 The Supreme Court specifically noted that this tip, standing 29Id. at 274.
30Id.
31White, 496 U.S. at 332. 32Id. at 327.
33Id.
34Id. 9 alone, would not have justified a Terry stop.35 But, because the tip – after corroboration by police – accurately predicted White’s future behavior, it demonstrated a “special familiarity with [the suspect’s] affairs” which in turn implied that the tipster had “access to reliable information about that individual’s illegal activities.”36 As such, the Court held that there was sufficient indicia of reliability to justify an investigatory stop.37

¶19. Considering the “totality of the circumstances” in the case before us today, we find that the anonymous tip lacked sufficient “indicia of reliability” to form reasonable suspicion before stopping Cooper. The tip was significantly less detailed than those in White and McClellan, with just a general description of the race and gender of the suspect(s), a generic allegation of illegal drug activity, and the general area in which the activity was occurring. Unlike Linson, the caller did not identify the number of men engaging in illegal drug activity or a specific location where these events occurred. And, unlike J.L., there was no identification of the suspects by physical attributes, such as clothing, or other distinguishing features.

¶20. Because the tipster was vague in his or her description, there were no details suggesting that the tipster possessed “inside information” about Cooper’s identity or his involvement in alleged drug trafficking on Union Street. Likewise, the tip contained no predictive information to test the tipster’s basis of knowledge or veracity. 35Id. at 329 (emphasis added). 36Id. at 332.
37Id. 10

¶21. Of equal importance is the fact that Edney conducted no independent investigation to corroborate the few details provided in the tip or to accumulate more information about the alleged drug trafficking activity before stopping Cooper. Edney and Smith merely proceeded to the 500 block and attempted to stop Cooper and Wright, the first black males they observed in the vicinity. While Edney’s knowledge of Cooper’s identity from prior narcotics-related complaints may only slightly bolster the tip’s credibility, this fact alone does not elevate an otherwise unreliable tip to the level of creating reasonable suspicion. Even the most detailed of tips, as in White, did not give rise to reasonable suspicion to conduct a Terry stop until after investigation of the details.

¶22. Rather than solely relying on the area’s reputation for drug trafficking and his familiarity with Cooper’s identity, which says little as to what Cooper was doing on the 500 block of Union street that morning, Edney should have accumulated additional “specific and articulable facts” to determine if a reasonable basis existed to believe Cooper was engaged in the illegal sale or possession of narcotics, similar to the course of action officers took in Linson.

¶23. Having established that Edney lacked reasonable suspicion to conduct a Terry stop, we must now analyze the facts of the stop to determine if Edney’s initial interaction with Cooper was an actual Terry stop. Whether the stop implicates the Fourth Amendment. 11

¶24. The constitutional prohibition against unreasonable searches and seizures applies equally to “seizures of the person, including brief investigatory stops”38 involving the “temporary detention”39 of a suspect.40 So, Cooper must have been “seized” or “temporarily detain[ed]” by Edney before his flight from questioning to trigger Fourth Amendment protection. As the Supreme Court explained in Terry: Obviously, not all personal intercourse between policemen and citizens involves “seizures” of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.”41

¶25. Further, a suspect is “seized . . . only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”42 So long as a person feels free to “to disregard the police and go about his business,” the encounter would be considered consensual, with no reasonable suspicion required.43

¶26. We find that the initial encounter between Edney and Cooper was neither voluntary nor consensual. Edney attempted to detain Cooper with a show of authority by flashing his blue lights and commanding Cooper to “come here and let me talk to you for a minute.” A 38Floyd v. City of Crystal Springs, 749 So. 2d 110, 114 (Miss. 1999); 39Singletary, 318 So. 2d at 876.
40Terry, 392 U.S. at 15.
41Id. at 19, n.16. 42U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980); Goff v. State, 14 So. 3d 625, 641 (Miss. 2009). 43Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389 (1991) (quoting California v. Hodari, 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L. Ed. 2d 690 (1991)). 12 reasonable person in the same situation would not be given the impression that he was free to “disregard the police and go about his business.”44 But our inquiry does not end here.

¶27. In California v. Hodari, the U.S. Supreme Court held that, absent the use of physical force, a “seizure” requires submission to an officer’s show of authority.45 In Hodari, a group of youths who had gathered on the street dispersed and took flight when an unmarked police car began to approach.46 Before he was physically detained by officers, Hodari abandoned a small rock of crack cocaine.47 The Supreme Court found that the defendant was not “seized” at the time he abandoned the drugs because Hodari did not comply with the detaining officer’s show of authority – an order to halt.48 Rather, Hodari was “seized” at the time he was tackled by police, which occurred after he abandoned the drugs.49 So the 44Although we have not squarely addressed the issue of whether the use of blue lights is a show of authority amounting to a “seizure” for Fourth Amendment purposes, other jurisdictions have and have answered this question in the affirmative. See State v. Garcia- Cantu, 253 S.W.3d 236, 245 n.43 (Tex. Crim. App. 2008) (“use of ‘blue flashers’ or police emergency lights are frequently held sufficient to constitute a detention” while use of “a patrol car spotlight” does not alone suffice to establish a “seizure” but is a contributing factor); Commonwealth v. Smigliano, 694 N.E.2d 341, 343-344 (Mass. 1998) (where an officer activated his blue lights behind defendant’s stopped car and got out of his cruiser to approach determined by the court to be a “seizure” because “a reasonable person, on the activation of a police car’s blue lights, would believe that he or she is not free to leave”); State v. Yeargan, 958 S.W. 2d 626, 629-630 (Tenn. 1997) (defendant “seized” when officer followed him into a parking lot and activated the cruiser’s blue lights). 45Hodari, 499 U.S. at 626 (emphasis in original). 46Id. at 622-623.
47Id. at 623.
48Id. at 626-628. 49Id. at 629. 13 evidence of the crack cocaine was not the fruit of an illegal seizure, and was properly admitted at trial.50

¶28. Like Hodari, Cooper did not yield to Edney’s show of authority – a command to “come here and let me talk to you.” Instead, he immediately began to flee after hearing Edney’s command. Thus, we find that – even though the officers lacked reasonable suspicion to conduct a Terry stop – Cooper was not “seized” until after he ran, discarded the drugs, and was detained by Edney. So we affirm the trial court’s denial of Cooper’s motion to suppress – not because the officers had reasonable suspicion sufficient for a Terry stop – but because the Terry stop never took place. Edney’s Pursuit and Arrest of Cooper

¶29. Although Edney lacked reasonable suspicion to conduct a Terry stop before his initial interaction with Cooper, based upon the totality of the circumstances, we find that Cooper’s flight gave rise to reasonable suspicion sufficient for Edney to follow in pursuit. On this issue, the Supreme Court has determined that “[h]eadlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”51 Furthermore, “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.”52 On the other hand, the Supreme Court also has found that where an officer, lacking reasonable suspicion or probable cause, “approaches an 50Id.
51Illinois v. Wardlow, 528 U.S. 119, 124, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). 52Id. 14 individual, the individual has a right to ignore the police and go about his business.”53 And “‘any refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.’”54

¶30. But this was not a situation where Cooper was merely exercising his right to disregard the police and go about his business. In fact, at trial, Edney testified that, as he exited the vehicle to approach Cooper, “Mr. Cooper was already starting to back off a little bit.” Clearly, this was an act of evasion upon approach of police, which, combined with Edney’s prior knowledge of the area’s reputation for drug trafficking and criminal activity55 and history associated with Cooper, gave rise to a suspicion that Cooper was somehow associated with illegal activity. So, even before seeing Cooper throw the bag of ecstasy into the wall, Edney was justified in his pursuit of Cooper for the purpose of completing his Terry stop. Warrantless Entry into the Home

¶31. After determining that the Terry stop was supported by reasonable suspicion, the Court of Appeals concluded that Cooper’s flight and abandonment of the ecstasy gave rise to exigent circumstances56 – hot pursuit – which justified the warrantless entry into the 53Id. (citing Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983)). 54Id. (quoting Florida v. Bostick, 501 U.S. at 437). 55That a stop occurred in a “high crime area” is a “permissible contextual consideration[] in a Terry analysis.” Wardlow, 528 U.S. at 124 (citing Adams, 407 U.S. at 144, 147-148). 56See Elkins v. McKenzie, 865 So. 2d 1065, 1083-1084 (Miss. 2003) (warrantless entry into a home justified if the state can prove the presence of “exigent circumstances,” including hot pursuit of a suspected felon, the possibility that evidence in the residence may be destroyed or removed, and danger to the lives of officers or others in the residence.) 15 residence and the arrest of Cooper.57 And, because officers were in the residence under the exigent circumstance of hot pursuit, they were permitted to “seize evidence in plain view during the course of their search.”58 Additionally, the court found that the concern for the destruction of drugs was an exigency supporting the warrantless search. And the court concluded that there was probable cause for his arrest, since Edney witnessed Cooper throw the bag of ecstasy in the wall, thus giving rise to a reasonable belief that the offense of possessing drugs had occurred in his presence.59

¶32. We need not address the question of whether exigent circumstances or probable cause justified Edney’s entry into the home to arrest Cooper. The issue presented in Cooper’s motion to suppress and in his brief to the Court of Appeals was whether the ecstasy was the “fruit of an illegal search of the residence wherein the defendant was located.” In his motion to suppress, Cooper alleged that the “officers did not have a search warrant to search the residence that the defendant was in, nor did any of the circumstances exist that fall within the enumerated exception[s] to the warrant requirement.” So, according to Cooper, Edney violated the prohibition of unreasonable searches and seizures. Such an argument and assignment of error is logical, because Edney saw Cooper abandon the drugs in the house before he was detained, and therefore, the drugs were not the fruit of his arrest. However, Cooper lacked standing to challenge the warrantless search of the home because he lacked a legitimate and reasonable expectation of privacy there. 57Cooper, 2013 WL 5614321, at **5-6 (¶¶25, 27).
58Id.
59Id.; see also Miss. Code Ann. § 99-3-7(1) (Rev. 2007). 16

¶33. The Fourth Amendment of the U.S. Constitution and Article 3, Section 23 of the Mississippi Constitution protects occupants of a home from warrantless and nonconsensual entry by police.60 But to claim protection under the Fourth Amendment, a defendant must have a “legitimate expectation of privacy in the invaded place,”61 typically restricted to those who rent, own, or otherwise reside in the dwelling. The Supreme Court extended this protection to “overnight guests” as “[s]taying overnight in another’s home is a longstanding social custom that serves functions recognized as valuable by society.”62

¶34. This Court also has identified situations where suspects, present on the property of another (presumably with permission), lacked a reasonable expectation of privacy.63 For instance, in Hopson v. State, this Court found that the defendant lacked an expectation of privacy for drugs seized during the search of his sister’s house.64 The search was the product of a sting operation, which revealed Hopson’s drug-trafficking activity within his sister’s home.65 In finding that Hopson lacked a legitimate expectation of privacy in his sister’s home, the Court relied on the fact that the defendant did not have a key to the house; he did 60 Minnesota v. Olson, 495 U.S. 91, 95, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (emphasis added) (“‘[A]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his home and the be free from unreasonable governmental intrusion.’”); Payton v. New York, 445 U.S. 573, 589-590, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) (quoting Silverman v. U.S., 365 U.S. 505, 511, 81 S. Ct. 679, 683, 5 L. Ed. 2d 734 (1961). 61Olson, 495 U.S. at 95.
62Id.
63See Hopson v. State, 625 So. 2d 395, 401 (Miss. 1993). 64Id.
65Id. 17 not have the freedom to come and go as he pleased or to exercise “control” over the premises; and that he maintained a permanent residence elsewhere.66 Thus, he was a “guest” with no “control over the premises to such a degree that he would have an expectation of privacy that would invoke his right to object to the search and subsequent seizure of contraband pursuant to the Fourth Amendment.”67

¶35. Here, it is clear that Cooper did not have a reasonable expectation of privacy when he entered the house in question. Cooper admitted that he did not live there, and Edney testified at the hearing on the motion to suppress that he knew the actual occupant of the home. Further, Cooper provided a home address on a different street in Greenville at the time of his arrest. Edney also testified that Cooper had to force open the door to enter, which also suggests that he did not have a right to be inside the dwelling. Because Cooper discarded the ecstasy before being seized or detained by Edney, in a home in which he did not have a reasonable expectation of privacy, we find that the search of the home and seizure of the evidence were proper. CONCLUSION

¶36. The officers lacked reasonable suspicion to conduct a Terry stop of Cooper. But when the officers initially approached Cooper and ordered him to “come here and let me talk to you,” Cooper failed to obey. Instead, he ran before the officers exercised any physical restraint. Therefore, no Terry stop took place. And because Cooper lacked standing to challenge the search of the home that did not belong to him and seizure of the drugs he 66Id. 67Id. 18 discarded therein, the trial court correctly denied Cooper’s motion to suppress evidence obtained in the search. We affirm the judgments of the Court of Appeals and the Washington County Circuit Court.

¶37. CONVICTION OF POSSESSION OF ECSTASY WITH INTENTTO DISTRIBUTE AND SENTENCE OF SEVEN (7) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO (2) YEARS TO SERVE FOLLOWED BY FIVE (5) YEARS POST RELEASE SUPERVISION, WITH CONDITIONS, AFFIRMED. SENTENCE SHALL RUN CONSECUTIVELY TO ANY OTHER SENTENCE CURRENTLY BEING SERVED. WALLER, C.J., LAMAR, KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR. PIERCE, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.

Insurance Law From A to Z Series – Repair Shop

Summary Mississippi Insurance Law CoverIt’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”  This was put together by our litigation group  who practice in the insurance law arena.  Of course, if you have questions about these or any other topics please do not hesitate to contact us.

This week’s installment – Repair Shop

Insurer cannot require a specific repair shop.  However, the insurer is only required to pay the lowest possible amount for which the repair could properly and fairly be made within a reasonable geographic area.  Miss. Code Ann. § 83-11-501.

Draft/Check

When there is not a total loss, the insurer must add the name of the repair shop or any lien holders as a payee on a check.  In the case of a total loss, the insurer must add the name of any lien holder to the insured as payee on the check.   Miss. Code Ann. § 83-11-551.

Salvage Title Law

Salvage titling is governed by Title 35, Part 7 of the Mississippi Administrative Code.

 

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The information contained in this post is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Dunbar.

Insurance Law From A to Z Series – Releases

Summary Mississippi Insurance Law CoverIt’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”  This was put together by our litigation group  who practice in the insurance law arena.  Of course, if you have questions about these or any other topics please do not hesitate to contact us.

This week’s installment – Releases

In order to obtain a valid and binding release, certain situations call for court or other government agency approval:

1) Minors (under 18) – need Chancery Court approval

2) Incompetent Adults – need Chancery Court approval

3) Estates/Wrongful Death Claims – need Chancery or Circuit Court approval – there is an optional method for Estates less than $50,000 via affidavit by heir (§ 91-7-322)

4) Workers Compensation claimants – need Circuit Court or Workers Comp Commission approval UM benefits are exempt

 

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The information contained in this post is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Dunbar.

Watts Named in 2014 Best Lawyers in America

Mike Watts

Mike Watts

Holcomb Dunbar attorney Mike Watts was recently selected for inclusion in The Best Lawyers in America. Selection for Best Lawyers is based on an exhaustive peer-review survey of over 5.5 million confidential evaluations by the top attorneys in the country. The Best Lawyers publication has been described by The American Lawyer as “the most respected referral list of attorneys in practice.”

Watts served on the Mississippi Board of Bar Commissions for 1995 to 1998, is A/V rated by Martindale Hubbell, and a Fellow of the Mississippi Bar Association.

Holcomb Dunbar is an Oxford, MS law firm representing local, regional, and national clients. The firm specializes in litigation, including insurance defense, product liability, medical malpractice, complex bankruptcies, and white collar crime. Holcomb Dunbar is the Mississippi member of TAGLaw, an invitation-only network of 140 law firms located in more than 100 countries and has earned recognition as a “Go-To” law firm in the area of litigation from Corporate Counsel magazine. The current firm was organized in 1970, but traces its roots to 1885 through its predecessor firms.

For more information, visit www.holcombdunbar.com.

Insurance Law From A to Z Series – Primary vs. Excess Coverage

Summary Mississippi Insurance Law CoverIt’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”  This was put together by our litigation group  who practice in the insurance law arena.  Of course, if you have questions about these or any other topics please do not hesitate to contact us.

This week’s installment –

Primary vs. Excess Issues

There is no statute in Mississippi governing “other insurance” provisions, other than a provision which states that “any motor vehicle liability policy may provide for the prorating of the insurance thereunder with other valid and collectible insurance.”  See Miss. Code Ann. 63-15-43(9).  There is no case law that has invalidated “excess” policy provisions as contrary to public policy or based on the statute mentioned.

Nevertheless, there are some situations that will arise that will create a conflict between a carrier’s attempt at designating its policy as excess, and the “other” insurance company’s attempts to do the same thing.  Under Mississippi case law, when two (or more) policies present competing other insurance clauses (such that, if both literally read, would leave no primary coverage), the courts will disregard both provisions, and deem the policy for the accident vehicle as the primary.  Travelers Indemnity Company v. Chappell, 246 So. 2d 498 (Miss.1971); USF&G  v. John Deere Insurance Co., 830 So. 2d 1145 (Miss. 2002).

In other words, when two “other insurance” clauses conflict such that neither insurer purports to carry the primary policy of coverage, the two “other insurance” clauses cancel each other out.  This common law invention is known as “The Rule of Repugnancy.”  Once the rule is applied, “the policy of the owner of the vehicle involved in the accident is ordinarily considered to be the ‘primary policy.’”  Chappell, at 505.

Where there are two conflicting “other insurance” clauses, a carrier still should examine the language of the policies to see if in fact they conflict.  As it stands right now, however, this basic rule of contract construction comes with a caveat in Mississippi, for even where the policies do not conflict, the appellate courts have shown a tendency to apply the “primary” rule anyway.  As a result, it is becoming more and more “universal” (as one Mississippi opinion put it) to make the “primary” insurer the one with coverage of the automobile involved, conceivably in the face of policy language to the contrary.  Recently, the Mississippi Supreme Court summarily held “[t]he long-standing law in Mississippi is that the insurance policy issued to the owner of the vehicle is the primary policy . . . .”  See Guidant Mut. Ins. Co. v. Indemnity Ins. Co. of North America, 13 So. 3d 1270 (Miss. 2009).  That “primary” insurer will be required to exhaust the limits of the policy before the other, excess policy will be invoked.  Assuming a court can be reminded to look at the policy language first, in a case in which the other policy announces itself to be the primary policy or provides that coverage is to be pro rated between the insurers, the company’s excess provision would not be in conflict, and would in fact be excess.

A similar issue arises when insurance carriers dispute which company will be able to take the offset of other available insurance (such as the tortfeasor’s liability policy).  The only Mississippi case to have addressed the question of priority of a set-off is Dixie Insurance Company v. State Farm Mut. Auto. Ins. Co., 614 So.2d 918 (Miss. 1992).  In Dixie, the court appeared to create the rule that the primary carrier is entitled to the offset.   The court stated, “[t]he trial court correctly held that the primary insurer was entitled to offset first.”  Id.  See also Strickland v. Hill, 2002 WL 31654961(E.D. La.) (unpublished opinion) (noting that the offset doctrine “appears to be tailored based on the ranking of insurance companies”).  However, this “rule” may be an overstatement of Mississippi law as the court strayed from policy interpretation in this decision and the announcement of this rule was unnecessary.

 

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The information contained in this post is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Dunbar.

Insurance Law From A to Z Series – Premises Liability

Summary Mississippi Insurance Law CoverIt’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”  This was put together by our litigation group  who practice in the insurance law arena.  Of course, if you have questions about these or any other topics please do not hesitate to contact us.

This week’s installment – Premises Liability

Generally, the duty which a landowner owes to another is determined by the common law statuses: trespasser, invitee, and licensee.  Little v Bell, 719 So.2d 757 (Miss. 1998).  A three-step process is applied to determine premises liability:  determining the status of the injured person; the duty that is owed based on the status; and whether the duty was breached by the landowner.  Leffler v. Sharp, 891 So. 2d 152 (Miss. 2004).

Trespasser

A trespasser is someone who enters the property of another without permission.  Hughes v. Star

Homes, Inc., 379 So. 2d 301, 303 (Miss 1980).  A landowner owes the trespasser the duty not to willfully or wantonly injure him.  Id. at 304.

The Attractive Nuisance Doctrine applies to situations involving child trespassers.  The plaintiff must prove four elements when a child enters another’s property and is injured by a dangerous condition: 1) that the owner knew or should have known of the dangerous artificial condition, 2) that the owner knew or should have known that children frequent the area where the dangerous condition exists, 3) that it is unlikely that the child trespasser could appreciate the risk presented, and 4) that the cost to correct the dangerous condition is minimal compared to the magnitude of the risk.  It should be noted that the plaintiff is NOT required to show that the child was actually attracted by the dangerous condition.  Keith v. Peterson, 922 So. 2d 4 (Miss. Ct. App. 2005), cert. denied, 926 So. 2d 922 (Miss. 2006).

Licensee

A licensee is someone who enters the property of another for his own benefit with the express or implied permission of the owner.  Little, 719 So. 2d at 760.  A landowner owes a licensee the duty to refrain from willfully or wantonly injuring him (same as Trespasser).  Hughes, 379 So. 2d at 304.  “Social guests” are considered licensees.

Invitee

An invitee is someone who enters the property of another with the express or implied permission of the owner for the mutual benefit of the invitee and the owner.  Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978).  The duties that the landowner owes to an invitee are to keep the premises reasonably safe and to warn of hidden dangers.  Mayfield v. The Hairbender, 903 So. 2d 733 (Miss. 2005).

Hoffman Exception

The premises owner is liable for injuries proximately caused by his affirmative or active negligence which subjects a person to unusual danger, or increases hazard to him, when his presence is known to the owner.  The standard is of ordinary and reasonable care in these situations.  Hoffman v. Planters Gin Co., Inc., 358 So. 2d 1008, 1013 (Miss. 1978).

Slip and Fall

In order for a plaintiff to recover in a slip and fall case, he must show (1) that some negligent act of the defendant caused his injury; or (2) that the defendant had actual knowledge of a dangerous condition and failed to warn the plaintiff; or (3) that the dangerous condition existed for a sufficient amount of time to impute constructive knowledge to the defendant, in that the defendant should have known the dangerous condition.  Anderson v. B. H. Acquisitions, Inc., 771 So. 2d 914, 918 (Miss. 2000) (citing Downs v. Choo, 656 So. 2d 84, 86 (Miss. 1995)).

 

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The information contained in this post is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Dunbar.

How Can I Restore My Right to Own a Firearm?

 

Doug Hollowell Attorney

Doug Hollowell

How can I restore my right to own a firearm?

Mississippi law provides a mechanism to allow such through a “Judicial Certificate of Rehabilitation.”

A felony conviction brings with it several consequences, one of which is the loss of one’s right to own or possess a firearm. Mississippi law, however, does provide an avenue of relief. The gun ownership rights of an individual convicted of a felony can be restored through a Certificate of Rehabilitation.

Upon completing all court ordered conditions, including any and all probation and fines, a person convicted of a felony may petition the court to issue a Certificate of Rehabilitation. A Certificate of Rehabilitation may also be available to those currently ineligible for an expungement.

Have more question, call Doug Hollowell at 662-238-7559 to learn more or to discuss eligibility.

Insurance Law From A to Z Series – Parental Liability

Summary Mississippi Insurance Law CoverIt’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”  This was put together by our litigation group  who practice in the insurance law arena.  Of course, if you have questions about these or any other topics please do not hesitate to contact us.

This week’s installment – Parental Liability

Parents may be found liable for property damage up to $5,000 caused by the willful or malicious acts of their minor children between age 10 and 18.  Miss. Code Ann. § 93-13-2.

Parents have a duty to take reasonable measures to supervise their children in order to protect others from acts of their children which are reasonably foreseeable.  Williamson v. Daniel, 748 So. 2d 754, 759 (Miss. 1999).

There is joint and severally liability for the willful or negligent acts of a minor under 17 while operating motor vehicle between minor and person who signed application for license or permit. M.C.A. § 63-1-25.

 

__________________

The information contained in this post is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Dunbar.

Marital Property

Jonathan Masters Divorce and Child CustodyMarital Property – Comingling

When handling property in a divorce the Court will look very closely the couple’s assets to determine what is “marital property.” Marital property will be included in the marital estate and is subject to division in the divorce while separate property, usually property who acquired before the marriage is separate, is not included. This past week, the Mississippi Court of Appeals addressed this issue and how a home was converted from separate property to marital property through certain actions taken by the couple during the marriage, or sometimes called “comingling.”

At the divorce hearing the wife, Constance, testified that she lived in the home nearly thirty years. Husband, Stephen, moved into the home after they married in 1998. Constance testified that, prior to 1997, the deed to the home listed both of her parents’ names with a right of survivorship. In 1997, Constance’s father transferred his half of the deed to her. Constance’s mother died in 2001, which resulted in her part of the deed transferring back to Constance’s father based on the right of survivorship. Later that year, Constance’s father and Stephen signed a deed quitclaiming their interest in the home to Constance. Around this time, the couple used the home as collateral to obtain a loan from Central Sunbelt Federal Union. Both Constance and Stephen were listed as the loan borrowers.

With respect to this home, the Chancery Court Judge found:

The Court finds that the plaintiff owns real property, conveyed from her
parents, which serves as the marital domicile of the parties and the parties’
minor child . . . Said property is titled solely in the name of CONSTANCE JO
SIMS[,] and Defendant, STEPHEN SIMS, quitclaimed his interest therein to
[Constance] in 2001. However, because the parties jointly borrowed money
with the home as collateral, which loan benefitted both parties, and because
[Stephen] continued to reside at the home as the spouse of [Constance] for
[ten] years after executing a quitclaim deed to [Constance] and made payments
of $558.99 each month thereafter until his incarceration in satisfaction toward
the mortgage taken against the property, the Court finds the marital home to
be a marital asset.

On appeal, Constance sought to have the home deemed separate property and not counted as part of the marital estate. Constance argued that even if the parties commingled their nonmarital
assets, the quitclaim deed Stephen signed constituted an “agreement to the contrary” that preserved the home as a non-marital asset. The Court of appeals was unconvinced. The court sided with the lower court’s decision. It too was believed Stephen’s contribution to satisfy the mortgage debt on home, and the long period of time in which the family resided there were enough to classify the marital home as a marital asset and subject to equitable division of marital property. This despite the husband signing a deed which would indicate to the contrary.

The opinion appears to broaden the interpretation of marital property and the ease in which “non marital” property can be converted. Couples should be well aware that certain ways of handling property through the course of a marriage may very well effect who ultimately receives the property in the event of a divorce.
Here is the full Opinion:

 

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CA-00885-COA

CONSTANCE JO SIMS                                        APPELLANT
v.
STEPHEN SIMS                                                   APPELLEE

The Covington County Chancery Court granted Constance Sims a divorce from
Stephen Sims on the ground of felony incarceration. The court also awarded physical
custody of the couple’s minor child to Constance and divided the marital property.
Constance appeals and argues that the chancery court erred: (1) in classifying the marital
home as a marital asset, and (2) in failing address Constance’s alternative request for alimony
in her motion to amend the final judgment. Finding no error, we affirm.

FACTS

¶2. Constance and Stephen married on August 15, 1998. The couple had one child
together, Devin Sims, born on August 28, 1998. The family resided together in Collins,
Mississippi, until Constance and Stephen separated in January 2011. Around the time of
separation, Stephen pled guilty to six counts of embezzlement. He served eighteen months
in the custody of the Mississippi Department of Corrections (MDOC) before being paroled
to the Hinds County Restitution Center. Constance and Devin continued to live in the home.

¶3. Constance filed for divorce on February 7, 2012, on the grounds of felony
incarceration and desertion. Miss. Code Ann. § 93-5-1 (Supp. 2013). Constance also
requested physical custody of Devin, child support, exclusive ownership of the home,
equitable distribution of the marital assets, and alimony.

¶4. The court held a hearing on September 17, 2012. Constance testified that she had
lived in the home nearly thirty years. Stephen moved into the home after they married in
1998. Constance stated that, prior to 1997, the deed to the home listed both of her parents’
names with a right of survivorship. In 1997, Constance’s father transferred his half of the
deed to her. Constance’s mother died in 2001, which resulted in her part of the deed
transferring back to Constance’s father based on the right of survivorship. Later that year,
Constance’s father and Stephen signed a deed quitclaiming their interest in the home to
Constance. This was the only deed admitted into evidence at the hearing.

¶5. Constance testified that the home was paid for when the quitclaim deed was signed.
Near the time Constance obtained the deed, she and Stephen used the home as collateral to
obtain a loan from Central Sunbelt Federal Union. Both Constance and Stephen were listed
as the loan borrowers. Stephen testified that he paid the monthly mortgage of $558.99 from
the time the loan was obtained to the time he was incarcerated.

¶6. Stephen was a resident at the Hinds County Restitution Center at the time of the
hearing. He testified that the MDOC prohibited him from seeking employment for the time
being, due to his poor health conditions. Constance testified that she had been doing several
different part-time jobs, but was struggling to find work. She also stated that she filed for
disability six weeks before the hearing.

¶7. In the judgement of divorce, the chancellor stated that Constance was entitled to a
divorce on the ground of felony incarceration. Miss. Code Ann. § 95-3-1 (Rev. 2013). In
regard to the marital home, the chancellor stated the following:
The Court finds that the plaintiff owns real property, conveyed from her
parents, which serves as the marital domicile of the parties and the parties’
minor child . . . Said property is titled solely in the name of CONSTANCE JO
SIMS[,] and Defendant, STEPHEN SIMS, quitclaimed his interest therein to
[Constance] in 2001. However, because the parties jointly borrowed money
with the home as collateral, which loan benefitted both parties, and because
[Stephen] continued to reside at the home as the spouse of [Constance] for
[ten] years after executing a quitclaim deed to [Constance] and made payments
of $558.99 each month thereafter until his incarceration in satisfaction toward
the mortgage taken against the property, the Court finds the marital home to
be a marital asset.

¶8. The chancellor granted Constance exclusive use and possession of the home and her
personal property within the home. In addition, the chancellor granted Constance ownership
of the home, subject to an $18,000 lien in favor of Stephen no sooner than when Devin
reaches twenty-one years of age. Constance was also held responsible for satisfying the
remainder of the debt secured by the home. The chancellor awarded Constance physical
custody of Devin, and Stephen was ordered to pay $125 per month in child support.
Constance was also awarded sole use and possession of the automobile she had shared with
Stephen.

¶9. Constance filed a motion to amend the judgment of divorce on October 29, 2012.
Constance requested the following pursuant to Mississippi Rule of Civil Procedure 52: (1)
the chancellor amend the findings of fact to state that the marital home is part of Constance’s
separate estate, as opposed to a marital asset; (2) in the alternative, the chancellor amend the
findings of fact to address alimony; and (3) the chancellor address the assignment of the
remainder of the marital debts. The chancellor issued an amended judgment of divorce,
upholding his decision to classify the marital home as a marital asset. Additionally, the
chancellor assigned responsibility for the listed marital debts. The chancellor did not address
Constance’s alternative request for alimony.

STANDARD OF REVIEW

¶10. “This Court employs a limited standard of review of property division and distribution
in divorce cases.” Bowen v. Bowen, 982 So. 2d 385, 393 (¶32) (Miss. 2008) (quoting Owen
v. Owen, 928 So. 2d 156, 160 (¶10) (Miss. 2006)). The chancellor’s distribution of the
marital assets will be affirmed as long as “it is supported by substantial credible evidence.”
Id. at 394 (¶32). In addition, “[a]limony awards are within the chancellor’s discretion and
will not be reversed by the Court on appeal absent manifest error or an abuse of discretion.”
Cosentino v. Cosentino, 912 So. 2d 1130, 1132 (¶8) (Miss. Ct. App. 2005) (citing Baker v.
Baker, 861 So. 2d 351, 353 (¶10) (Miss. Ct. App. 2003)).

DISCUSSION
1. Marital Home

¶11. Marital property is defined as “any and all property acquired or accumulated during
the marriage.” Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994). Such assets are
subject to equitable distribution by the chancellor. Id. Nonmarital assets may be converted
into marital assets if they are commingled with marital property or utilized for domestic or
familial purposes, absent an agreement to the contrary. Heigle v. Heigle, 654 So. 2d 895, 897
(Miss. 1995); Johnson v. Johnson, 650 So. 2d 1281, 1286 (Miss. 1994); see also Maslowski
v. Maslowski, 655 So. 2d 18, 20 (Miss. 1995). Further, commingled property, which has
become marital property, is subject to equitable distribution. See Maslowski, 655 So. 2d at
20; Heigle, 654 So. 2d at 897; Johnson, 650 So. 2d at 1286.

¶12. “An inheritance or gift made to one spouse during the marriage remains the separate
property of that spouse.” Allgood v. Allgood, 62 So. 3d 443, 447 (¶13) (Miss. Ct. App. 2011)
(citing Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994)). However, “[s]spouses
possessing separate ownership convert the property into marital property through the
following actions: conversion by implied gift, family use, or commingling.” Id. (footnote
omitted) (citing Yancey v. Yancey, 752 So. 2d 1006, 1011 (¶20) (Miss. 1999)).
¶13. The burden of proof is on the person claiming the assets to be nonmarital to
demonstrate their nonmarital character. A & L Inc. v. Grantham, 747 So. 2d 832, 839 (¶23)
(Miss. 1999). Constance contends that even if the parties commingled their nonmarital
assets, the quitclaim deed constituted an “agreement to the contrary” that preserved the home
as a nonmarital asset. Our supreme court has declared that the formal state of a title is “no
longer determinative in deciding a spouse’s rights to the property.” Maslowski, 655 So. 2d
at 21(citing Hemsley, 639 So. 2d at 914). In addition, Constance and Stephen lived in home
together for nearly ten years after the quitclaim deed was signed, using the home as collateral
for a joint loan. The chancellor stated in his bench ruling that these actions resulted in the
commingling of nonmarital and marital assets. After careful review of the record, we agree
with the chancellor’s finding.

¶14. “A chancery court has authority, where equity so demands, to order a fair division of
property accumulated through the joint contributions and efforts of the parties.” Brown v.
Brown, 797 So. 2d 253, 257 (¶9) (Miss. Ct. App. 2001) (citing Hemsley, 639 So. 2d at 915).
In explaining his equitable division of the marital property, the chancellor considered
Stephen’s contribution to satisfy the mortgage debt on the family home, and determined that
the equitable division of the parties’ property credited Stephen for that contribution. Finding
that the evidence presented in the record is consistent with the chancellor’s judgment, we
affirm both the chancellor’s classification of the marital home as a marital asset and the
equitable division of marital property.

2. Alimony

¶15. Constance also argues that the court erred by failing to address the issue of alimony
in the amended judgment of divorce. Specifically, she claims that the court was required to
make specific findings of fact and conclusions of law on her alternative request for alimony.
¶16. “Alimony and equitable distribution are distinct concepts, but together they command
the entire field of financial settlement of divorce. Therefore, where one expands, the other
must recede.” Ferguson, 639 So. 2d at 929. “If the equitable division of property leaves
neither spouse with a deficit with respect to having sufficient resources and assets to meet
his or her needs and living expenses, then no alimony award is appropriate.” Jackson v.
Jackson, 114 So. 3d 768, 777 (¶22) (Miss. Ct. App. 2013) (citations omitted). Constance
was awarded exclusive use and ownership of the marital home, as well as a majority of the
marital assets. The chancellor’s equitable division did not leave Constance with a deficit.
We agree with the chancellor that alimony was inappropriate. The question remains whether
the chancellor was required to address alimony based on Constance’s request under Rule
52(a).

¶17. 52(a) provides:
In all actions tried upon the facts without a jury the court may, and shall upon
the request of any party to the suit or when required by these rules, find the
facts specifically and state separately its conclusions of law thereon[,] and
judgment shall be entered accordingly.

Our supreme court has held that “where a trial court makes general findings of fact and
conclusions of law, it has complied with [Rule] 52.” Ill. Cent. R.R. Co. v. Acuff, 950 So. 2d
947, 957 (¶35) (Miss. 2006) (citing Century 21 Deep S. Props. Ltd. v. Corson, 612 So. 2d
359, 367 (Miss. 1992)). Here, the chancellor made general findings of fact and conclusions
of law for equitable distribution. The chancellor found alimony inappropriate. As a result,
specific findings of fact and conclusions of law regarding alimony were not necessary. We
find that the chancellor complied with the requirements of Rule 52. This argument is without
merit.

Insurance Law From A to Z Series – Owner’s Liability

Summary Mississippi Insurance Law CoverIt’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”

This week’s installment -Owner’s Liability –

Is the owner of a car responsible for accident?

Without some special relationship, an owner of an automobile, merely by virtue of his ownership interest, is not liable for injuries negligently caused by a permissive driver.  Wood v. Nichols, 416 So. 2d 659 (Miss. 1982).

 

This was put together by our litigation group  who practice in the insurance law arena.  Of course, if you have questions about these or any other topics please do not hesitate to contact us.

__________________

The information contained in this post is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Dunbar.

Insurance Law From A to Z Series – Misrepresentation

Summary Mississippi Insurance Law CoverIt’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”  This was put together by our litigation group  who practice in the insurance law arena.  Of course, if you have questions about these or any other topics please do not hesitate to contact us.

This week’s installment – Misrepresentation

An insurer may cancel or void a policy from its inception and treat as if it never existed upon proof that the misrepresentation of a material fact is in the application.  Casualty Reciprocal Exchange v. Wooley, 217 So. 2d 632, 635-36 (Miss. 1969).

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The information contained in this post is for general guidance on matters of interest only.  The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report.  Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services.  As such, it should not be used as a substitute for consultation with legal or other competent advisers.  Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Dunbar.

Happy Fourth of July from Holcomb Dunbar

Happy Fourth of JulyHappy Fourth of July

IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

New Laws in Mississippi

Holcomb Dunbar AttorneysNew Laws In Mississippi

Today marks the effective date of several new laws in Mississippi signed into law earlier this year.

The Mississippi Religious Freedom Restoration Act, restricts the government from placing burdens on religious practices. This comes a day after the U.S. Supreme Court upheld a virtually identical federal statute to uphold Hobby Lobby’s opposition to providing contraception coverage through its company health insurance plans.

Another new law bans abortions at 20 weeks. There are however exceptions which may apply. Those include severe abnormality to the baby, and death or permanent injury to the mother due to the pregnancy.

And Mississippi teachers will be receive $1,500 pay raise this year, with an additional $1,000 increase next year. And there is the addition of merit pay raises for high achieving districts which will begin in the 2016-2017 school year.

These laws take effect today, July 1, 2014, pursuant to the effective date passed by the Mississippi legislature and signed by Governor Bryant.

 

 

Insurance Law From A to Z Series – Minor’s Legal Rights

Summary Mississippi Insurance Law CoverMinor’s Legal Rights

It’s time for the next installment of Holcomb Dunbar law series “Insurance Law from A to Z.”  This was put together by our litigation group  who practice in the insurance law arena.