A new ethics opinion for Mississippi lawyers – 266

For the first several years that I practiced law it was common to see settlement releases contain language requiring the plaintiff’s counsel hold harmless and indemnify both the insurance carrier and the defendant from any claim for plaintiff’s medical bills, from medical liens (including Medicare and Medicaid liens) and from workers’ compensation liens.

There was very little risk associated with signing such a release because there were few third parties that had the ability to track and enforce liens or subrogation effectively. There were no online portals for this purpose at the time. Move forward a few years, and it became common for Medicare, Medicaid and subrogation recovery contractors to send letters/injury questionnaires to injured parties even before they hired counsel.

During that evolution of the lien and subrogation process, law firms on the plaintiff’s side began to see the risk involved and the ethical implications with being asked to sign their client’s releases. Could a defendant hold up a plaintiff’s settlement because the plaintiff’s counsel refused to assume liability? Bar associations across the country were asked to provide an answer. Arizona was one of the first to do so and held “A claimant’s attorney may not ethically enter into any settlement that would require the attorney to indemnify or hold the Releasee harmless from any lien claims.” Ariz. State Bar Comm. on the Rules of Prof’l Conduct, Op. 03-05 at 3 (2003).

Almost 20 years later, the Mississippi Bar was asked to offer an opinion on the similar question “When settlement of a case requires a release to be signed by a party (“Releasor”), can the attorney representing the Releasee require the signature of the Releasor’s attorney to “approve” or “agree to” the release?” Making reference to 23 state and local bar associations in the United States that have issued similar ethics opinions, the MS Bar agreed “it is a violation of the Mississippi Rules of Professional Conduct for an attorney to sign a release that in any way “approved” or “agreed to” terms that would obligate them unless they are a party to the matter. We further find that it is a violation of the Mississippi Rules of Professional Conduct for a lawyer to ask another lawyer to sign a release that would require them to “approve” or “agree to” any of the terms of the settlement.”

You can read the entire opinion here. If you don’t care to read the opinion, the take away is simple:

If you are plaintiff’s counsel, don’t sign releases. If you are defense counsel, don’t ask plaintiff’s counsel to sign releases.

2020 – Proposed Wildlife Legislation

In the past few years, Mississippi tinkered with the primitive weapon season, baiting, tagging / reporting, and deer enclosure requirements.  What will be the hot button issues in wildlife for the legislature this year?   So far, nothing of consequence.

There are no wildlife bills introduced in the House Wildlife, Fisheries & Parks Committee as of yet.

In the Senate WFP Committee, only two bills have been filed:

1. SB2002, the “Wildlife Trafficking Prevention Act,”  would prohibit transactions for certain wildlife.  Upon review, it appears to be duplicative of federal laws.  While a laudable goal, Mississippi might as well leave the trade regulations of rhinos, elephants, tigers and such to the feds.
2. SB2003 would require the Mississippi Department of Wildlife Fisheries and Parks (MDWFP) in conjunction with the Department of Environmental Quality (DEQ) and Department of Transportation (DOT) to identify existing and needed “wildlife corridors.”  Mississippi doesn’t have wild populations of elk or other migrating animals with large interstates separating summer and winter grounds.  This legislation has been submitted for years, but never gains any traction in committee.  Expect this year to be no different.

So what proposed legislation can be expected?  Look for mandatory harvest reporting for deer to surface again.  Now that chronic wasting disease has been found here, there may be something on that subject.  Sportsmen hunting along the Mississippi River have experienced reoccurring early season closings due to flooding.  It wouldn’t surprise me to see something proposed to raise the height at which those closures occur.  The perennial loser, requiring the registration and tagging of ATVs, will likely be proposed and die yet again.  In reality, there simply isn’t much work for the legislature to do on wildlife since 2014 when they granted the MDWFP Commission plenary authority to regulate the bag limits and promulgate necessary rules.

Chancellor Primeaux on the GAP Act

All lawyers that handle guardianships and conservatorships in Mississippi need to follow Chancellor Primeaux’s blog.  Beginning next month, he will start a series on the Mississippi Guardianship and Conservatorship Act that takes effect January 1, 2020.  The Act consists of 144 pages and as stated in Section 1, will “replace those statutes in Title 93, Chapter 13, Mississippi Code of 1972, which are repealed in Sections 11 through 19 of this act.”  The title alone is over two pages long.  Make no mistake, this is not a simple name change.  As recommended by Chancellor Primeaux, it would be a good idea to print a copy to make notes and highlight.  I killed a highlighter and used almost a full pad of post-it notes on my first pass reading of the Act.  

Be careful when you select your insurance company

Some insurance companies go out of their way to avoid coverage once a loss occurs.  Post claim underwriting, unreasonable delays, multiple examinations under oath, and onerous document requests are common.  Or, in the case of Cincinnati Insurance Company, an absurd interpretation of policy language.

Often, these claim delays and denials go unanswered because policyholders simply fail to hold their insurance company accountable.  Unfortunately for Cincinnati Insurance, Mr. Frederking didn’t let the denial of his claim go unanswered.  Also unfortunate for Cincinnati, it didn’t find any sympathetic ears at the Fifth Circuit Court of Appeals.

Only an insurance company could come up with the policy interpretation
advanced here. Cincinnati Insurance Company theorizes that its automobile
policies do not cover injuries caused by drunk driving collisions, because such
collisions are not “accidents.” Its logic is this: intentional acts are not accidents, and drunk drivers make the intentional choice to drink and then drive. This theory of interpretation conflicts with the plain meaning and common usage of the word “accident”—and defies the understanding and expectation of everyone who drives a car. Not surprisingly, no court has, to our knowledge, endorsed the policy interpretation advanced here, and Cincinnati cites none…

Frederking v. Cincinnati Insurance Company.

When you purchase insurance for yourself or your business, research the companies.  Do they have a history of denying claims?  Don’t let bottom line price dictate your purchase.  That cheap insurance isn’t so cheap if the company routinely denies legitimate claims.

When faced with the denial of any insurance claim, speak to a lawyer that is well versed in insurance law.  If you have a large loss, particularly a large fire loss, speak to an attorney as soon as possible to help prevent a denial.  Your attorney can assist you with assembling documents, completing your proof of loss, the inevitable recorded statement(s) and examination under oath.

Thank you to all who served

No amount of thanks can ever repay the debt owed to the men and women that served to protect the freedoms we enjoy every day.

Take a moment out of your holiday and watch the story of Medal of Honor recipient, Master Sargent Roy Benavidez.  A true American hero.

Your Facebook page reveals otherwise

A few moons ago, I blogged about use of Facebook in civil litigation.  In the following years, the use of Facebook in litigation has grown exponentially with the dynamic growth of active Facebook users now exceeding  2.19 billion.  According to Statistica, 240 million of those users are in the United States as of April 2018.

People post every conceivable thing to social media.  Some good, some bad.   It comes as no surprise that social media posts by parties in civil litigation contradicting the claims made in their lawsuits make fertile grounds for impeachment.  Plaintiff claims in litigation that he can no longer lift anything over 25 pounds, but his Facebook page has posts showing him engaging in a power lifting competition.  Defendant driver claims perfect eyesight, but has Facebook posts asking for prayers as he is going to the eye doctor for a surgery to correct his vision.  Plaintiff wife files a loss of consortium claim alleging her husband’s injury damaged their marriage, but she has Facebook posts for two years leading up to the injury discussing her husband’s infidelity.  Defendant claims his dog that bit someone isn’t vicious, but has Facebook posts referencing having to pay vet bills because his dog killed a neighbor’s cat—-again.  The possibilities are endless.

A recent case from the Mississippi Court of Appeals highlights just how damning this evidence can be.    David McLaughlin contended that while making a left turn he was struck by an 18-wheeler that was attempting to pass him from behind.  McLaughlin claimed he suffered damages in the amount of $591,000, including medical expenses, lost wages, and pain and suffering.  Placing the claims of contributory negligence aside, Mr. McLaughlin had some serious evidentiary issues.

First, the trial court allowed the jury to hear evidence of Mr. McLaughlin’s alcohol use.  McLaughlin v. North Drew Freight, Inc.  NO. 2016-CA-01335-COA (Miss. Ct. App. 2018).  The Court of Appeals found no error given that “evidence of possible alcohol consumption just prior to the accident was highly relevant and probative” on the issue of his credibility, recollection and contributory negligence.  Id. (citing Abrams v. Marlin Firearms Company, 838 So. 2d 975 (Miss. 2003).

Next, McLaughlin claimed “that the admission of a Facebook video, which shows him
doing jumping jacks for his daughter, was irrelevant and damaged his credibility with the jury.”  McLaughlin, at paragraph 27.  Again the Court of Appeals disagreed:

The video showed McLaughlin being physically active contrary to his testimony
describing his alleged injuries. This certainly had the tendency to make the existence of this claim more probable or less probable than it would be absent the video. A reasonable juror could conclude that the Facebook video casts doubt on the severity of McLaughlin’s injuries.

Id. at paragraph 29.  The admission of alcohol use, impeachment by Facebook posts, and the comparative fault of the parties resulted in a jury verdict of $1,400.00 which the Court of Appeals affirmed.  As Mr. McLaughlin is now well aware, parties to litigation must be very careful in what they post to social media.

A new scam email targeting lawyers making the rounds

Not a day goes by that I don’t receive some sort of scam or spoofed email.  Generally the emails read as if they went through google’s translate function and almost always include the word “kindly.”  I am not sure why that term is so prevalent in scams, but if you see the words “kindly respond” or something similar, do not run off to verify your account numbers with them.

Today’s scam actually looks somewhat legit at first glance, but I don’t do business with the sender.  A quick and easy way to detect a scam is to simply move your cursor over the hyperlinks in the text of the email. Do not open or click anything.  Simply hover your cursor over the hyperlinks to see if they actually point to a legitimate location.

This email appeared to come from Jeff Parmer, Processor at Blue Ridge Title & Escrow, Inc.

Move the cursor over the “Visit us at our Website” hyperlink and it appears to go to their website.  So far, so good.

However, if you hover over “Open Message” you will see that link would take you to https://taslihan.com/wp-admin/closing/

Taslihan.com is not affiliated with Blue Ridge Title & Escrow and is registered to:

Registrant Contact
Name: Mustafa COBAN
Organization: Mustafa COBAN
Mailing Address: SUtCU imam caddesi 127/B, Istanbul 34400 TR
Phone: 90.5458380222
Email: webmastermustafa@gmail.com

What are the chances that webmaster Mustafa in Istanbul is legit?  I trust him as much as I do the quality of the last burrito in the gas station window at midnight.  If you aren’t expecting an email from someone, don’t click links in the email and don’t open attachments.

Car wrecks involving public employees engaged in police or fire protection

Negligence actions based on the acts or omissions of state governmental employees are generally subject to the Mississippi Tort Claims Act.  Government employees include those employed by the State of Mississippi and its political subdivisions.  Miss. Code 11-46-1, et seq provides a limited waiver the government’s immunity and also provides specific circumstances under which the government’s immunity is not waived.  Miss. Code 11-46-9 (1)(c) contains what has been referred to as the police and fire exception.

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:

…

(c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury;

Therefore, the government and its employees engaged in police and fire protection activities are not liable for simple negligence.  To establish liability under the Tort Claims Act against the government and its employees engaged in police or fire protection a plaintiff must establish the employee acted in reckless disregard for the safety and well-being of the plaintiff and the plaintiff wasn’t engaged in criminal activity at the time of the injury.

For many years the government’s immunity left injured parties with no recourse for their losses from car wrecks where the injured party couldn’t establish the high standard of reckless disregard.  In response, some injured parties attempted to obtain uninsured motorist benefits, but were turned away by the language of the uninsured motorist statute which provides in part:

 No automobile liability insurance policy or contract shall be issued or delivered after January 1, 1967, unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle . . . .
Miss. Code. 83-11-101(1)

The basis for no coverage under 83-11-101(1) is that the injured party was not “legally entitled to recover” from the government so there was no uninsured motorist claim.

In 2009, the Mississippi Legislature amended the definition of “uninsured motor vehicle” to include: “[a] motor vehicle owned or operated by a person protected by immunity under the Mississippi Tort Claims Act, Title 11, Chapter 46, Mississippi Code of 1972, if the insured has exhausted all administrative remedies under that chapter.” Miss. Code 83-11-103(c)(vi).  At first glance, this amendment appears to allow a person injured in a car wreck to collect damages from their own uninsured motorist carrier if a government employee engaged in police or fire protection injured the person through acts of negligence that did not rise to the level of reckless disregard.

However, at least one trial court found the Legislature’s amendment of 83-11-103 futile.  In Williams v. State Farm Ms. Williams was injured in a car wreck caused by an employee of the Mississippi Bureau of Narcotics (MBN).  It was stipulated that the MBN employee was within the course and scope of her employment, engaged in police protection duties at the time of the collision and that her acts did not amount to reckless disregard for the rights of Williams.  Relying on 83-11-103(c)(vi), Williams asserted an uninsured motorist claim against State Farm for her damages. The Circuit Court Judge, in a short two page opinion, found that Williams was not “legally entitled” to recover against the MBN pursuant to 83-11-101(1) and that State Farm was allowed to use all defenses available to MBN.  As a result, the Court granted State Farm’s motion for summary judgment denying uninsured motorist benefits to Williams.

Subsequent to Williams, the same issue surfaced in the case of McGlothin v. State Farm before U.S. District Judge Guirola.  McGlothin’s vehicle was rear ended by a fireman employed by the Biloxi Fire Department.  State Farm again argued  that the claim for uninsured motorist benefits was barred by the “legally entitled to recover” language of
Miss. Code 83-11-101(1). Like Williams, McGlothin argued that she was entitled to coverage, because the Mississippi Legislature amended the definition of “uninsured motor vehicle” in 2009 to include: “[a] motor vehicle owned or operated by a person protected by immunity under the Mississippi Tort Claims Act, Title 11, Chapter 46, Mississippi Code of 1972, if the insured has exhausted all administrative remedies under that chapter.” Miss. Code § 83-11-103(c)(vi).

Judge Guirola analyzed the conflict between Miss. Code § 83-11-103(c)(vi) and Miss. Code § 83-11-101(1) looking to the legislative intent behind each statute.  His analysis concluded:

the two statutes are repugnant, and the only way to carry out the Mississippi Legislature’s intent in enacting Miss. Code Ann. § 83-11-103(c)(vi) is to view it as an exception to Miss. Code. Ann. § 83-11-101(1). Furthermore, Miss. Code Ann. § 83-11-103(c)(vi) should control in this circumstance, because it is a more specific statute than Miss. Code. Ann. § 83-11-101(1).  As a result, McGlothin is entitled to uninsured motorist coverage under the State Farm policy.

There are tens of thousands of police officers and firemen on the roads each day in Mississippi.  The vast majority of them are diligent and careful public servants.  However, they are human and they do make mistakes.  Purchase adequate uninsured motorist coverage to ensure you and your family are protected in the event of injury through no fault of your own in a car wreck with an police officer or fireman.

 

 

Chronic Wasting Disease in Mississippi – Where to Find Current Information

On February 9, 2018, the Mississippi Department of Wildlife Fisheries and Parks issued a press release stating that chronic wasting disease had been found in Mississippi.  The positive test came from a 4 1/2 year old buck that was collected on January 25, 2018, in Issaquena County.  Since that time much information and unfortunately, misinformation has come out.  If you are interested in reading the facts rather than the rumors, take a look at the following:

1. You can find regular updates on the MDWFP website:
https://www.mdwfp.com/wildlife-hunti…sting-disease/

2. Officials from the MDWFP regularly appear on the MS Outdoors Radio which airs on the JT Show.  You can find the archives of these shows at http://www.supertalk.fm/audio-archives/j-t-archives/ The MDWFP also posts the videos from the MS Outdoors Radio programs on the news section of the MDWFP website which you can view at: https://www.mdwfp.com/media/news/

3. You can find regular updates on the MDWFP facebook page: https://www.facebook.com/mdwfp%20/

4. You can find updates on the MDWFP twitter account which is @MDWFPonline.

5. The MDWFP held a meeting at the Natural Sciences Museum on February 26 and invited members of the public to participate. Over 100 sportmen attended the even and another couple hundred watched it live on facebook.   The MDWFP broadcasted the event live and then posted the video to their webpage, facebook and twitter. You can view that at https://www.mdwfp.com/media/news/wil…ublic-meeting/

6. MDWFP provided a video update yesterday on their facebook page regarding the progress with sampling and said they intend to schedule another public meeting (possibly in Vicksburg) in the near future.

7.  The MDWFP’s Response Plan for Chronic Wasting Disease.

8.  You can find national news updates regarding chronic wasting disease at the Chronic Wasting Disease Alliance’s website.

The sky isn’t falling, but this is a serious disease that will impact deer hunting in Mississippi for years to come.  Read the facts from the experts and keep a skeptical eye out for the misinformation that appears to be coming from the commercial high fence deer industry.

The Inevitable Happened – CWD in Mississippi

On February 2, I wrote about  proposed legislation affecting hunters in Mississippi.  Senate Bill 2921 would have required the owner of any wildlife enclosure to apply for and obtain a permit from the Mississippi Department of Wildlife Fisheries and Parks (MDWFP) and provided other related regulations.  The bill was virtually identical to HB1389.  Senate Bill 2921 died in Committee.  HB1389 passed the House and is currently pending in the Wildlife, Fisheries and Parks Committee of the Senate.

My February 2 blog post ended with “It is good to see the MDWFP and the Legislature doing what it can to protect that economy from the unfortunate and probably inevitable day CWD reaches Mississippi.”  A week later, the inevitable occurred and reports surfaced that CWD was confirmed in a free range whitetail deer in Issaquena County, Mississippi.  According the the Mississippi Department of Wildlife Fisheries and Parks the deer was collected on collected on January 25, 2018 and was a 4.5-year-old male that died of natural causes.

Since the MDWFP confirmed CWD, a considerable amount of information and unfortunately, misinformation has occurred on social media and internet message forums.  I won’t bother to repeat any of what has come from the chicken littles.  If you would like to read the actual plan the MDWFP has prepared, you can read it here.  The immediate change for sportsmen is a ban on supplemental feeding in the counties  within the 25 mile buffer zone surrounding the first confirmed CWD deer (Claiborne, Hinds, Issaquena, Sharkey, Warren, and Yazoo).  Suffice it to say, there will be modifications to the plan as they move forward with testing and additional information becomes available.  The MDWFP chronic wasting disease website will be updated as any developments occur.  If you want to read more about CWD, the Chronic Wasting Disease Alliance has a very informative website that is updated frequently.