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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.

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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.

 

 

2018