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.
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:
- 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.
- Policyholders shall have the right to receive a written explanation of why a claim is denied, in whole or in part.
- 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.
- 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”.
- Policyholders shall have the right to be treated fairly and honestly when making a claim.
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).
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.
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).
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.
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.
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.
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.