Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Last week the Mississippi Supreme Court issued decisions in two cases that will allow voters in the November elections to decide issues related to abortions and eminent domain.The Court basically punted on the substantive issues and decided the cases on procedural grounds.

In Hughes v. Hoseman the plaintiffs challenged Measure 26, which asks voters to decide whether life begins at conception. Cliff Johnson and Rob McDuff of North Congress Street in Jackson represented the plaintiffs.

Here is the Court's 7–2 opinion. Justice Pierce wrote the majority opinion. Here is a CNN article on the case.

The Court determined that the dispute is not ripe for adjudication, since the amendment has not passed yet. The decision contradicts a 2000 Miss. Supreme Court decision that ruled that the Court does have the authority to review the constitutionality of proposed initiatives. Neither side raised the ripeness issue.

In Speed v. Hoseman, the plaintiff challenged the State's ability to take and transfer private property through eminent domain. Here is the Court's 7–2 opinion. Justice Lamar wrote the majority opinion. As in the personhood case, the Court dismissed the case on ripeness grounds.

My Take:

I thought David Hampton's analysis in the Clarion-Ledger was good:

It is disappointing that the state Supreme Court is allowing the referendums on eminent domain and the so-called "personhood" amendments to proceed on the Nov. 8 ballot. There clearly are legal issues with both, but the court basically punted and said the election should be held before any further consideration. The court said it was not known if the amendments would be rejected, so it would be premature. News flash.  As flawed and potentially harmful as both of these amendments are, they will be overwhelmingly approved. The move to restrict eminent domain appeals, wrongly so, to property rights beliefs and the personhood amendment is a thinly veiled referendum on abortion. They have strong public support. They, along with the initiative to require voter ID, however, mostly are politically motivated efforts to appeal to voters passionate about those issues and bring voter turnout, which Republicans see as beneficial to the GOP. The Supreme Court will be seeing these again. The fact that we have an elected Supreme Court most likely played a role here. It would have been very politically unpopular for the judges to block the election. That's too bad. These initiatives should not be on the ballot.

In all likelihood, the Court's decision simply delays its having to rule on these politically sensitive issues. I prefer an appointed judiciary so that observers don't view “an elected Supreme Court” as being a factor in decisions.

Finally, these opinions are more evidence that the principle of stare decisis is not strong in Mississippi—at least not currently.

• Email This
• Print
• Comments (7)
• Trackbacks
• Share Link

On Thursday the Mississippi Supreme Court reversed a $2.5 million Hinds County jury verdict against Deviney Construction Company. I reported the verdict two years ago in this post.  Here is the Court's opinion.

Facts:

The plaintiff called two Deviney employees as witnesses early during plaintiff's case in chief. Circuit Judge Tommie Green ruled that the defendants cold not reserve questioning and call the witnesses during defendant's case. Defendants had to question the witnesses then or not question them at all. Defendants could not recall the witnesses to question them about the testimony of the eight plaintiff witnesses that followed.

The Ruling:

A restrained opinion stated that: “a defendant should not be required to present his or her evidence during the plaintiff's case.” The Court ruled that this was a major error and remanded the case for a new trial.

Justice Lamar wrote the unanimous opinion.Wayne Drinkwater with Bradley Arant in Jackson represented Deviney on the appeal.  

My Take:

This was a sensible decision. The trial judge's ruling is a real head scratcher.

I feel bad for the plaintiff and plaintiff's counsel Ashley Ogden. It does not appear from the record that plaintiff's counsel asked for the trial court's ruling. Nothing like getting your verdict reversed over something you didn't ask for.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

One week after reversing a $148,000 verdict against the City of Jackson, the Miss. Supreme Court affirmed a $500,000 verdict against the City in a wrongful death case. Here is the Court's opinion in Harris v. City of Jackson.

Like the case last week, this case involved a wreck caused by a Jackson police officer. Hinds County Circuit Court Judge Swan Yerger was the judge in both cases. But that is where the similarities end.

In the case last week, a police officer caused a wreck while responding to an emergency even though she proceeded through a red light slowly with siren and buzzer blaring. This week, the police officer was not responding to an emergency and was speeding through the red light with no siren or lights. Witnesses estimated that the police cruiser was going over 100 mph when it hit the victim's car.

There was an expert report for lost wages of $345,000. The total verdict was $500,000–-the maximum recoverable against a governmental entity.

On appeal, the City argued that it did not waive immunity under the Tort Claims Act because the police officer committed the crime of culpable-negligence manslaughter. The statute does not waive immunity when the employee's conduct constituted a criminal offense.

The Court rejected the argument, finding that the statute excludes “traffic offenses” from the criminal conduct immunity. The actual language of the statute (Miss. Code Ann. 11–46–5) states “traffic violations.”

The Court found that the officer's traffic violations were running a red light and speeding. Since these are traffic violations, the Court reasoned that the City waived immunity.

Justice Lamar wrote the Court's unanimous opinion. Plaintiff's counsel were Chuck Mullins and Merrida Coxwell. Kimberly Banks, Pieter Teeuiwissen and Claire Hawkins represented the City.

My Take:

This decision was a win for the facts of the case. The cop was an idiot and the victim did not deserve to die. Anyone who reads the facts should agree that it's only fair that the City lost. But the Tort Claims Act and general notions of fairness are often inconsistent.

This decision could be viewed as a result oriented decision that could have gone the other way on the law with different facts. The criminal violation that the City relied on was manslaughter—not a traffic violation.

Under the Court's rationale, a governmental entity is liable for any “reckless disregard” conduct as long as it involves a traffic violation in connection with a more serious crime. For example, the City would be liable if a drunk cop shoots his neighbor who he had been feuding with out of a moving cop car, if the car was traveling 20 mph in a 15 mph zone. But if the car was parked or only going 15 mph, the City would not be liable. 

That would be fine with me, since I hate governmental immunity and believe that it creates a system that unfairly stacks the deck against victims. But I'm not sure that this decision was the legislature's intent.   

• Email This
• Print
• Comments (4)
• Trackbacks
• Share Link

On Thursday in a 7–2 decision the Mississippi Supreme Court affirmed the Grenada County Circuit Court's grant of summary judgment in Angle v. Koppers, Inc. Here is the Court's opinion. Justice Lamar wrote the Court's opinion joined by Chief Justice Waller and Justices Carlson, Dickinson, Randolph, Chandler and Pierce.

The case was a toxic tort case where plaintiff claimed to suffer injuries as a result of exposure to toxic chemicals. The most recent of plaintiff's claimed injuries occurred in 2001. Plaintiff filed suit in 2005.

Plaintiff argued that the statute of limitations began to run when  she discovered that her medical problems were the result of exposure to toxic chemicals. Defendants argued that the statute of limitations began to run when plaintiff was diagnosed with her illnesses. The Court agreed with the defendants.

The Court's decision was based on its interpretation of this provision in Mississippi's general statute of limitations, Miss. Code Ann. 15–1–49:

(2) In actions for which no other period of limitations is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury. 

The Court noted that the statute does not state discovery of the injury and its cause. The Court also pointed out that medical malpractice cases are governed by a different statute and discovery rule.

Justice Kitchens dissented and was joined by Justice Graves. The dissent argued that the statute cannot begin to run until a plaintiff is aware of all four elements of a negligence claim, including causation. Therefore, the dissent argued that the statute did not begin to run until the plaintiff discovered that her illnesses were caused by the exposure to the toxic chemicals.

Chris Shapely and a bunch of other lawyers represented defendants. Elizabeth Carlyle and and bunch of other lawyers represented the plaintiff.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a unanimous opinion rendered on Thursday in J.B. Hunt Transport, Inc. v. Forrest General Hospital, the Mississippi Supreme Court ruled that an actively negligent tortfeasor may not seek indemnity from a subsequent negligent party. 

Facts

In 2006 Melissa Hall was injured in a motor-vehicle accident with a tractor-trailer operated by J.B. Hunt. She was transported to Forrest General Hospital, where she died five days after the accident.

J.B. Hunt settled with Hall's estate and wrongful death beneficiaries and sued Forrest general for medical malpractice under a common law indemnity claim. Hunt claimed that the wrongful death was exclusively caused by Forrest General and not Hunt.

The trial court granted Forrest General's motion for summary judgment.

Court's Decision

The Court agreed with Forrest General's argument that Hunt was a joint tortfeasor and that there is no right to indemnity between joint tortfeasors. Hunt's argument was that while it was a joint tortfeasor in the original injuries, it was not a joint tortfeasor in the death. The Court disagreed and ruled that because Hunt was a joint tortfeasor, it could not recover under an indemnity theory. As a result, the Court affirmed the grant of summary judgment.  

Justice Lamar wrote the Court's opinion. Mark Hodges with Wise Carter represented Forrest General and David Dunbar represented Hunt.

My Take

This was an interesting case involving an unusual fact pattern. I watched the oral argument in the case back in January and both sides and the Court did a good job of exploring the issue. Although the Court's opinion was only eight pages, this is the kind of decision that could end up as a bar exam question.   

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On Thursday the Mississippi Supreme Court affirmed the Adams County Circuit Court’s Order refusing to enforce an arbitration clause in a nursing home admissions agreement. Here is the Court’s opinion in Adams Community Care Center, LLC v. Reed. The trial judge was Judge Lillie Blackmon Sanders.

There were two admissions agreements in the case that were signed by the resident’s adult sons. Neither son had power of attorney. In addition, the resident’s primary physician had not made a determination that the resident lacked capacity pursuant to the Mississippi Uniform Health-Care Decisions Act. Therefore, neither son had authority to act as a health-care surrogate. The Court also found that an arbitration clause was not a health-care decision under the Act. 

The Court rejected the nursing home’s apparent authority argument because there was no evidence that the resident indicated that her sons were her agents for making health-care decisions. Finally, the Court rejected the nursing home’s third-party beneficiary argument because there was not a valid contract. 

Justice Lamar wrote the Court’s unanimous opinion. Justice Graves concurred in result only without a separate opinion. Skipper Samson of Gulfport represented the nursing home. Robert Cooper and Trae Sims represented the plaintiff.

Incidentally, I believe that nursing homes get family members of residents to sign admission agreements because they want to be able to go after the family members for the nursing home’s bills. It’s a business decision. I have defended a case that a nursing home filed against a resident’s family member who signed the admission agreement. 

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

On Thursday the Mississippi Supreme Court vacated two Jones County jury verdicts rendered in one trial in Gallagher Bassett Services, Inc. v. Malone and remanded the case for further proceedings. Here is the Court's opinion. Justice Lamar wrote for the Court.

 The case stemmed from Gary Malone's right leg amputation two years after he suffered a work-related injury. Malone sued Gallagher and his employer Nabors Drilling. Malone alleged that defendants committed a bad-faith delay in paying his workers comp. claim, causing a delay in medical treatment that led to the amputation of his leg.

Nabors filed a cross-claim against Gallagher and entered into a Mary Carter agreement with Malone under which Nabors admitted to bad-faith (by Gallagher) and paid Malone $1.5 million in exchange for the first $250,000 of any sums that Malone recovered from Gallagher and half of any additional sums recovered.

Malone’s claim and Nabors’s cross-claim were tried together. The jury rendered a verdict for Malone on his claim and awarded $250,000 in damages with fault apportioned among Gallagher (42.5%), Nabors (42.5%) and Malone (15%). The trial court entered final judgments against Nabors and Gallagher in the amounts of $106,250 each.

In a separate verdict the jury found for Nabors on its cross-claim against Gallagher and awarded damages in the amount of $1.25 million. The trial court did not submit the issue of punitive damages to the jury.

The Court found that the two verdicts were inconsistent and, therefore, the jury had to be confused. One jury instruction stated that in order to find for Nabors on its cross-claim the jury must find that nothing Nabors did contributed to Malone’s damages. But the jury both assessed fault to Nabors (42.5%) and found for Nabors on its cross-claim. The Court could not reconcile these inconsistent verdicts and vacated both verdicts and remanded the case.

The Court “strongly urge[d]” the trial court to sever Nabors’s cross-claim so that Malone’s claim and Nabors’s cross-claim are not tried in the same proceeding. You have to feel for the trial judge on this point [Judge Billy Joe Landrum], since no party asked for separate trials.

Notwithstanding the loss of his leg, you don't have to feel particularly sorry for the plaintiff and his attorneys, since they get to keep the $1.5 million that Nabors already paid to plaintiff.

 All participating justices concurred except for Justice Chandler, who argued in a dissent that the judgment against Gallagher should be reversed and rendered due to a lack of evidence of gross negligence, malice or reckless disregard.