Mississippi Insurance Law – Part 7MISSISSIPPI Insurance-Related Law — An A to Z GuideHere’s the next post sharing our 2016 update. If you like a full copy or have any questions, please email or call.NegligenceChildrenMississippi 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 ClaimThe 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 LiabilityWithout 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 LiabilityParents 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 ExpensesPremises LiabilityGenerallyThe 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).TrespasserA 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 towillfully 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.LicenseeA 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.InviteeAn 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 FallIn 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 IssuesThere 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 InformationAs 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): SteeringUnder 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 DamageThe 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:
- Insurance company pays for the loss; or,
- Insurance company repairs the vehicle.
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