New website for those injured in Mississippi

This site has been moved to the following address:

Injured in Mississippi Blog

Please check here for new content for those who have been Injured in Mississippi. Specific practice areas in:

– Jackson Wrongful Death Attorneys
– Mississippi Premises Liability Attorneys (Injuries on someone else’s property)
– Mississippi Car Wreck Attorneys
– Mississippi 18-Wheeler Accident Attorneys
– Mississippi Social Security Disability (SSDI)
– Wills and Estate Planning
– Mississippi Products Liability (Injury due to a defective product)

MTCA dismissal affirmed by Court of Appeals

In the recent case of Doe v. Rankin County School District the Mississippi Court of appeals affirmed the decision of the Circuit Court dismissing a case by a minor against the Rankin County School District by a nameless minor based upon the Mississippi Tort Claims Act.

MS Code Section 11-46-9(1)(b) states that a governmental entity is afforded immunity for claims “[a]rising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance[,] or regulation, whether or not the statute, ordinance[,] or regulation be valid[.]” Miss. Code Ann. § 11-46-9(1)(b) (Rev. 2012)

The statute allows for an exception for tortious acts which occur during within the scope and course of employment or during the performance of duties of a government employee.

Section 11-46-9(1)(d) states that a governmental entity will be immune from liability for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion is abused[.]”

“A duty is discretionary when it is not imposed by law and depends upon the judgment or choice of the government entity or its employee.” Montgomery, 80 So. 3d at 795 (¶19) (citing Miss. Dep’t of Mental
Health v. Hall, 936 So. 2d 917, 924-25 (¶17) (Miss. 2006)). “A duty is ministerial if it is positively imposed by law and required to be performed at a specific time and place, removing an officer’s or entity’s choice or judgment.” Id. (citing Covington Cnty. Sch. Dist. v. Magee, 29 So. 3d 1, 5 (¶8) (Miss. 2010)).

The school's negligence was based on their implementation of safety and security on campus. The Court determined that this was within the discretionary function of the school and the case was ripe for dismissal.

http://courts.ms.gov/Images/Opinions/CO87937.pdf

Uninsured Motorist and Underinsured Motorist Coverage in Mississippi

The Fifth Circuit Court of Appeals overturned a summary judgment ruling by Hinds County Circuit Court Judge Wingate. The Plaintiff's bad faith claim was dismissed but the 5th Circuit found that State Farm's denying or delaying payment of an Uninsured Motorists policy was bad faith.

Plaintiff is entitled to attorney time and extra-contractual damages brought on as a result of the denial of uninsured motorist benefits.

State Farm's duty to pay these benefits did not stop as a result of plaintiff's filing of a lawsuit.

Text of the Opinion is attached below:
http://600camp.com/wp-content/uploads/2013/06/James-v.-State-Farm.pdf

Before STEWART, Chief Judge, and GARZA and ELROD, Circuit Judges.

CARL E. STEWART, Chief Judge:

Defendant-Appellee State Farm Mutual Automobile Insurance Co. (“State

Farm”) tendered the policy limit on its uninsured motor vehicle coverage to

Plaintiff-Appellant Faith James nearly thirty months after James was injured

in a car accident. James brought a bad faith claim under Mississippi law, and

the district court granted State Farm’s motion for summary judgment. For the

following reasons, we AFFIRM in part, REVERSE in part, and REMAND.

I. BACKGROUND

A. Facts

On February 3, 2006, James was involved in a car accident with Jarvis

Smith. The parties do not dispute that Smith’s negligence was the sole cause of

United States Court of Appeals

Fifth Circuit

F I L E D

June 21, 2013

Lyle W. Cayce

Clerk

 Case: 11-60458 Document: 00512283135 Page: 1 Date Filed: 06/21/2013No. 11-60458

the accident. James’s vehicle turned over at least once, and she was taken from

the scene in an ambulance to Wayne General Hospital. James received

numerous stitches for a head wound and testified in her deposition that she felt

significant pain in her chest, back, and head immediately after the accident.

At the time of the accident, James and/or her husband owned four State

Farm insurance policies. The policy on the vehicle James was driving at the

time of the accident included $5,000 in medical payments coverage, collision

coverage, and $10,000 per person in uninsured/underinsured motor vehicle

(“UM”) coverage. Each of the other three policies also provided $10,000 per

person UM coverage for a stacked total of $40,000 in UM benefits. The parties

do not dispute that James’s policies were in effect at the time of the accident.

After James promptly notified State Farm of the accident, State Farm quickly

paid out under its medical payments and collision coverage.

At issue is State Farm’s delay in paying James benefits under her UM

coverage. As the timeline of events contained in the record underpins our

analysis of James’s claims, we refrain from a lengthy factual recitation here and

instead present critical events in our below discussion. We now continue our

summary of this case’s background with an overview of its procedural history.

B. Procedural History

On October 23, 2007, James and her husband1

filed a complaint against

State Farm in federal district court on diversity grounds. On February 13, 2008,

James filed an amended complaint, which alleged that State Farm was

intentionally engaging in delaying tactics to avoid paying on the policies.

Because of this delay, the complaint alleged that State Farm had, inter alia,

committed the tort of bad faith.2 The complaint requested a jury trial and

1

James’s husband later voluntarily dismissed his complaint.

2

James also asserted that State Farm’s actions were “a breach of Defendant’s duties

of good faith and fair dealings and duty to fairly and promptly adjust claims under the

2

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sought $40,000 due under the policy, compensatory damages, and punitive

damages.

Over the next several months, the magistrate judge granted two motions

to compel against State Farm. On July 29, 2008, State Farm paid its stacked

UM policy limit of $40,000 to James. State Farm then filed a motion for

summary judgment on October 29, 2008. On May 6, 2011, the district court

granted State Farm’s motion for summary judgment, entered final judgment in

favor of State Farm, and dismissed the complaint with prejudice. No. 4:07-CV-

137, 2011 WL 1743421 (S.D. Miss. May 6, 2011). This appeal followed.3

II. DISCUSSION

On appeal, James makes two arguments related to her bad faith claim: (1)

State Farm withheld payment under one policy in order to coerce a lower

settlement for claims under other policies, and (2) State Farm unreasonably

delayed payment on the claim without a legitimate or arguable basis for doing

so.

A. Standard of Review

We review a district court’s grant of summary judgment de novo. Bradley

v. Allstate Ins. Co., 620 F.3d 509, 516 (5th Cir. 2010) (citation omitted).

Summary judgment is appropriate when “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute about a material

Plaintiffs’ policy.” Even if the pleadings indicate James may have asserted these as claims

separate from her bad faith claim, James has pressed only her bad faith claim on appeal.

3 On appeal, James appears to assert a separate breach of contract claim. The district

court apparently interpreted this claim as a sub-issue within James’s bad faith claim. On

appeal, James combines this claim with her argument as to the independent tort of bad faith.

Assuming arguendo that James intended to assert a breach of contract claim separate from

her bad faith claim, we hold this claim to have been waived on appeal because James points

to no policy provisions supporting this claim. See Fed. R. App. P. 28. Accordingly, we affirm

the district court to the extent that it granted summary judgment to State Farm on a breach

of contract claim.

3

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fact exists when the evidence presented on summary judgment is such that a

reasonable jury could find in favor of the non-moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). We view all facts and evidence in the light

most favorable to the non-movant, here James. Bradley, 620 F.3d at 516

(citation omitted). When a defendant moves for summary judgment and

identifies a lack of evidence to support the plaintiff’s claim on an issue for which

the plaintiff would bear the burden of proof at trial, then the defendant is

entitled to summary judgment unless the plaintiff is able to produce “summary

judgment evidence sufficient to sustain a finding in plaintiff’s favor on that

issue.” Kovacic v. Villarreal, 628 F.3d 209, 212 (5th Cir. 2010) (citations

omitted) (quoting Thompson v. Upshur Cnty, Tex., 245 F.3d 447, 456 (5th Cir.

2001). “[T]he propriety of summary judgment [is] bound up in the burdens of

proof at trial . . . .” Steven Alan Childress & Martha S. Davis, 1 Federal

Standards of Review § 5.02, at 5-26 (4th ed. 2010) (citing Anderson, 447 U.S. at

247-48, 254).

We review the district court’s interpretation of state law de novo, and we

“give no deference to its determinations of state law issues.” Bradley, 620 F.3d

at 516 (citation omitted).

B. Applicable Law

Because James brought this case in federal court on diversity grounds,

Mississippi substantive law applies. See Erie R.R. Co. v. Tompkins, 304 U.S. 64

(1938). “To determine issues of state law, we look to final decisions of the state’s

highest court, and when there is no ruling by that court, then we have the duty

to determine as best we can what the state’s highest court would decide.”

Westlake Petrochems., L.L.C. v. United Polychem, Inc., 688 F.3d 232, 238 n.5 (5th

Cir. 2012) (citation omitted). “In making an [Erie] guess in the absence of a

ruling from the state’s highest court, this Court may look to the decisions of

4

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intermediate appellate state courts for guidance.” Howe ex rel. Howe v.

Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir. 2000) (citation omitted).

1. Claim against insurer for bad faith

James asserts that State Farm committed the tort of bad faith when it

delayed payment on her UM claim. “[A] bad faith refusal claim is an

‘independent tort’ separable in both law and fact from the contract claim

asserted by an insured under the terms of the policy.” Spansel v. State Farm

Fire & Cas. Co., 683 F. Supp. 2d 444, 447 (S.D. Miss. 2010) (alteration in

original) (quoting Hartford Underwriters Ins. Co. v. Williams, 936 So. 2d 888,

895 (Miss. 2006)).

The Mississippi Supreme Court has recognized that claimants can bring

bad faith claims against and recover punitive damages from insurers who refuse

to pay out on a valid claim. See Caldwell v. Alfa Ins. Co., 686 So. 2d 1092, 1098

(Miss. 1996) (holding that denial of a valid insurance claim is critical for the

submission of punitive damages to a jury). Additionally, 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.4 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. Ct. 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. Ct. 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.

4 Thus, here, we treat caselaw that refers to a “denial of a claim” as interchangeable

with a “delay of payment on a claim” unless the context indicates that the law pertains

specifically to a denial.

5

 Case: 11-60458 Document: 00512283135 Page: 5 Date Filed: 06/21/2013No. 11-60458

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, 686 So. 2d at 1098 (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).

Our review of the case law illustrates that whether to submit a delay-ofpayment claim to a jury is a highly fact-sensitive analysis.

2. Compensatory and punitive damages

James seeks to recover compensatory and punitive damages for State

Farm’s payment delay. In Mississippi, compensatory5

and punitive damages are

related. To establish a claim for punitive damages in the context of a bad faith

claim, a party must first establish her entitlement to compensatory damages.

See Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618, 628 (5th Cir. 2008)

(“Mississippi law does not permit parties to recover punitive damages unless

they first prove that they are entitled to compensatory damages.” (citations

omitted)). To do so, the trial judge must decide, as a matter of law, that the

insurer lacked ‘a reasonably arguable basis’ for denying the claim.” See id. at

628 (citation omitted) (quoting Andrew Jackson Life Ins. Co. v. Williams, 566 So.

2d 1172, 1186 n.13 (Miss. 1990); U.S. Fid. & Guar. Co. v. Wigginton, 964 F.2d

487, 492 (5th Cir. 1992) (citation omitted);Fulton v. Miss. Farm Bureau Cas. Ins.

Co., 105 So. 3d 284, 288 (Miss. 2012) (“When an insurer denies a claim without

an arguable basis . . . extracontractual damages may provide [a] form of relief.”

5 For purposes of this appeal, we use compensatory damages interchangeably with

consequential and extra-contractual damages.

6

 Case: 11-60458 Document: 00512283135 Page: 6 Date Filed: 06/21/2013

Supreme Court hears oral arguments on Gay Marriage

This last week the Supreme Court heard the cases of Hollingsworth v. Perry and Windsor v. United States. The rulings of these two cases have the potential to either overturn or uphold certain legislation currently restricting same-sex marriage in the United States.

This is the first time the Supreme Court has heard a case involving questions of same sex marriage, but it is easy to see the connection to other civil rights issues. 

While the Supreme Court does have the ability to legalize same-sex marriage across the board, it may also leave the issue in the hands of the individual states.

According to the Tenth Amendment of the U.S. Constitution, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” meaning that any rights not explicitly granted to the federal government rest with the states. The Constitution does not explicitly designate the right to define marriage, leading to the argument that the issue is one best left to the states.

5th Circuit reviews Mississippi Non-economic Damages Cap

Learmouth v. Sears, 631 F.3d 724 (2011) is a 2005 damages cap case has been pulled back up to 5th Circuit arguments. The 5th Circuit seeks further briefing on the issue of the constitutionality of Mississippi's $1 million cap on non-economic damages. The case has been around long enough to warrant a new brief based on any lower court decisions on the matter since the initial briefings.

In 2008 a federal jury found for the Plaintiff Lisa Learmouth for $4 million dollars, but the jury did not note which of these amounts were economic damages and which were noneconomic damages.

Non-economic damages refer to things like pain and suffering, which cannot be put into definite amounts. Currently the cap applies, but the court has heard arguments that damages caps such as this are unconstitutional because American citizens are guaranteed a right to trial by jury where a jury of peers will determine the amount of damages due if an individual or company is found to be at fault for an injury. The argument continues that a limit on damages takes away the power of the jury to truly decide the amount of restitution, the legislature in a way saying that the jury can make a decision just not that decision.

For more on this topic:
http://scholar.google.com/scholar_case?case=1589765558034230217&hl=en&as_sdt=2&as_vis=1&oi=scholarr

A jury found Sears, Roebuck and Company liable for causing Lisa Learmonth's injuries in an automobile accident and awarded her $4 million in compensatory damages. The district court denied Sears' motion for a new trial, but remitted the non-economic damages portion of the award to $1 million pursuant to Mississippi's statutory cap on non-economic damages. Sears appeals the district court's denial of its motion for new trial; Learmonth cross-appeals the constitutionality of the Mississippi statutory cap. We affirm the district court's judgment insofar as it denied a new trial and certify the state constitutional question to the Supreme Court of Mississippi.

I. BACKGROUND

Plaintiff Lisa Learmonth was seriously injured in a car accident at the intersection of Mississippi State Highways 15 and 485. The collision involved Learmonth's car, which she was driving, and a Sears, Roebuck and Company ("Sears") van driven by James McClelland, a Sears employee. Sears contested both liability and damages at trial.

The primary factual dispute as to liability was which driver was traveling on Highway 15, which runs north and south, and which driver was traveling on Highway 485, which runs east and west at that juncture. The question was a critical one, 729*729 as there is a stop sign on Highway 485— but no stop sign on Highway 15—at the intersection where the accident took place. Therefore, whoever was driving on Highway 15 had the right-of-way. Both drivers claimed that the other had been traveling east on Highway 485 and had run the stop sign at the intersection, causing the collision.

Eight fact witnesses testified in connection with the liability issue, including Learmonth and McClelland. Learmonth, who suffered head trauma from the collision, testified that she did not remember the accident itself, but that she had been heading north on Highway 15 to pick up her mother that day and had called her mother from a town south of the intersection on Highway 15. Phone records verified that Learmonth called her mother about fifteen minutes before the accident occurred. McClelland testified that he completed a service call at the home of Bud Dees, a quarter-mile north of the intersection on Highway 15, and was driving south on Highway 15 when Learmonth's car entered his path. At trial, he testified that he could not remember what time he left Dees' home, but in earlier depositions he testified that he left around 11:30 a.m. The accident occurred around 1:30 p.m. Sears submitted an affidavit stating that it was unable to locate any information or records, electronic or otherwise, regarding the service calls, deliveries, or repairs made by McClelland on the day of the accident, and it was thus unable to confirm McClelland's whereabouts on the day of the accident.

Day v. Hart - Jurisdiction in the County of Death - Crucial Mississippi Supreme Court Decisions

In Day v. Hart, 232 Miss. 516, 517, 99 So.2d 656, 657 (1958), the Mississippi Supreme Court addressed whether the Lincoln County Chancery Court had jurisdiction to grant administration under the "county where the intestate died" pursuant to Section 525 of the Code of 1942. Miss. Code Ann § 91-7-63(1) is derived from Section 525 of the Code of 1942.  Day, a Louisiana resident, and Hall, a Mississippi resident, were killed in a traffic collision caused by Day in Lincoln County. Id. at 657. Hart's family petitioned the Lincoln County Chancery Court seeking the appointment of an administrator for the Estate of Day in order to bring suit in Mississippi based on his Mississippi insurance policy. Id. at 658. The Supreme Court held that the Lincoln County Chancery Court had jurisdiction to grant administration on the estate of Day. Id. at 660. The Mississippi Supreme Court held:

Under said Section 525 of the Code of 1942 jurisdiction to grant administration is conferred upon the chancery court of the county in which the decedent died. The statute is clear and unambiguous and must be construed to mean what it says. A similar statute is not unknown to other jurisdictions.

Id. at 660. (Emphasis in the original). "Section 91-7-63(1) authorizes three possible places to open an estate, those being (1) the chancery court of the county where the intestate had a fixed place of residence at the time of death; (2) if there was no fixed place of residence, then the chancery court of the county where (a) the intestate died, or (b) where his personal property or some part may be."  Nat'l Heritage Realty, Inc. v. Estate of Boles, 947 So. 2d 238, 248-249 (Miss. 2006) (citing favorably Day v. Hart).  

Discovery Deadlines

The passing of discovery deadlines or the end of the Discovery period under a Scheduling order does not relieve parties of the duty to supplement or amend their discovery responses. The recent Mississippi Supreme Court case of Knapp and Knapp v. St. Dominic-Jackson Memorial Hospital. Parties that shirk their responsibility to adequately respond to discovery may be sanctioned under the Mississippi rules.

Knapp v. St. Dominic