Bad pleadings

Attorney Carlos Moore filed a lawsuit against Governor Phil Bryant in the United States District Court for the Southern District of Mississippi.  The lawsuit seeks to have the Federal Court declare the government use of the Mississippi flag unconstitutional and requests various other relief.  Regardless of whether you agree with Attorney Moore or what your opinion of the ultimate merits of his claim, his pleadings are well drafted.

The same cannot be said for a group calling itself “We the People of the Great State of Mississippi.”  This Group or person that is not a party to the case, filed documents with the clerk.  The pleadings consisted of an “ANSWER TO COMPLAINT MOTION TO DISMISS” and a copy of the Holy Bible.  Brushing aside the fact that non-parties do not get to file responsive pleadings, this document is one of the most rambling, incoherent things I have viewed in quite some time.  Judge Reeves struck the the non-party filings with a quick text only order.

 

Minor’s settlements vs. ERISA reimbursement

Today Chancellor Primeaux’s blog features a reprise repost regarding minor’s settlements that I commend to your reading.   It contains an outline from Chancellor Ed Patten that hits the high points required of the petition, hearing, approval of the settlement and accountings.

Within the petition section of the outline, reference is made to “any need to join ancillary 3rd parties..”  In most any minor’s settlement there are medical bills related to the minor’s injuries.  Those medical bills are either outstanding or have been paid by someone.  The payment may have come from private payment, private insurance or an insurance plan subject to the Employee Retirement Income Security Act of 1974 (ERISA).  Most insurance plans have a contractual provision providing that they have a right to repayment or subrogation should the insured receive money from a tort settlement or judgment.  In many cases, this language is extended to uninsured motorist claims.

ERISA is codified at 29 U.S.C. §1001 et seq. and has broad application to most every conceivable employer sponsored health insurance plan with certain exceptions for plans described in §410 (c)(1)(A-D) (church plans, government plans, and trade association plans) and those exemption by the “safe harbor” provisions prescribed by the Secretary of Labor.  See 29 C.F.R. § 2510.3-1(j) (1993).

ERISA in and of itself does not have a provision requiring subrogation or giving an insurance company a lien on settlement/judgment proceeds.  Typically the right of recovery for an ERISA plan is governed by the insurance contract.  In  Yerby v. United Healthcare, 846 So.2d 179 (Miss. 2002), the Mississippi Supreme Court held that the made whole rule is not the default rule in an ERISA plan.  The Fifth Circuit has likewise rejected the made whole rule where it was not included in the ERISA plan, and held that a clear and unambiguous subrogation/reimbursement provision entitles an ERISA plan to the full amount of medical benefits paid on the insured’s behalf.   See Sunbeam-Oster Company, Inc. v. Whitehurst, 102 F.3d 1368, 1376 (5th Cir. 1996); AT&T v. Flores, 322 Fed. Appx. 391, 394 (5th Cir. 2009).  As a result, an ERISA plan seeking contractual subrogation in Mississippi against an adult’s injury claim is entitled to subrogation regardless of whether or not the insured has been made whole by the settlement or judgment.

With respect to adults provided coverage by an ERISA plan, Yerby and Sunbeam control.  But what if the injured party is a minor insured by an ERISA health insurance plan?  Chancery Court approval is required in order to validly assign a minor’s right to insurance proceeds. Methodist Hosps. of Memphis v. Marsh, 518 So. 2d 1227, 1228 (Miss. 1988); McCoy v. Preferred Risk Ins. Co., 471 So. 2d 396, 398 (Miss. 1985).

In Cooper Tire v. Striplin, 652 So. 2d 1102 (Miss. 1995), the Mississippi Supreme Court stated “the subject of minor’s estates is a matter within the field of domestic relations not governed by ERISA,” and that the law did not “directly or indirectly relate to pension plans.” Striplin, 652 So. 2d at 1004.  At least one Federal Court considering the issue has found likewise.  See Clardy v. ATS Inc. Employee Welfare Benefit Plan, 921 F. Supp. 394 (N.D. Miss. 1996).  Therefore, if your client is a minor, an ERISA plan must have chancery court approval before a parent can contract away the rights of the minor though a subrogation or reimbursement provision.

Since 1995, most attorneys familiar with Striplin have taken it for granted that ERISA plans had no valid subrogation claim to a minor’s injury award.  This continued until Judge Jordan’s opinion in Richardson v. Bankplus, 3:12-cv-248 DPJ-FKB, 2012 U.S. Dist. LEXIS 187690 (S.D. Miss. September 24, 2012).

Whereas Striplin and the handful of cases that followed it analyzed subrogation claims of ERISA plans against minor’s settlements in terms of conflict preemption, Judge Jordon analyzed the subrogation claim in Richardson in terms of complete preemption. The Richardson case was settled shortly after Judge Jordan issued the opinion.

Subsequent to Richardson, but never referencing it is the case of In the Matter of O.D. v. The Ashley Healthcare Plan where a health plan removed a chancery court action for approval of a minor’s claim arguing that the state court claim (1) fell within ERISA’s civil enforcement statutes and (2) preempted plaintiff’s claims.    Judge Aycock referenced Clardy and found “[P]laintiff’s claims for approval of the minor’s settlement are not preempted by ERISA.”  O.D. v. Ashley Healthcare Plan, 2013 U.S. Dist. LEXIS 139266 (N.D. Miss. Sept. 27, 2013).  As a result, the case was remanded to the Chancery Court of Pontotoc County, Mississippi.

Not content with simply a remand, the plaintiff sought sanctions under the Mississippi Litigation Accountability Act (Miss. Code Ann. 11-55-1).  The chancellor found the removal was improper stating “[t]he only purpose for removal of the minor’s settlement . . . was for Defendants to engage in forum shopping and delay the final outcome of this matter.”  Ashley Healthcare Plan v. Dillard (In re O.D.), 2015 Miss. LEXIS 390 (Miss. Aug. 6, 2015).  The Defendant appealed the sanction award of over $18,000.  The Mississippi Supreme Court held that the plaintiffs

had the option of filing such a motion in state court under the Litigation Accountability Act for the plan’s frivolous removal of the case to federal court. Moreover, because the plan pursued a remedy which was not cognizable under the ERISA civil enforcement statute and because there was clearly established precedent that ERISA did not preempt a chancery court’s power to settle the claims of minors, we hold that the chancery court did not err by assessing attorney’s fees against the plan…

Ashley Healthcare Plan v. Dillard (In re O.D.), 2015 Miss. LEXIS 390, 33-34 (Miss. Aug. 6, 2015).  At no point in the O.D. trilogy before the chancellor, federal judge or Mississippi Supreme Court prior to the ruling of August 6, 2015 does it appear that anyone referenced the Richardson v. Bankplus case.  Counsel for Ashley Healthcare did point to Richardson on a motion for rehearing in Ashley, but the Mississippi Supreme Court denied rehearing without comment on November 12, 2015.

So, if you represent a minor in an injury suit that requires approval in Chancery Court, what do you do about claimed ERISA liens or subrogation?  The best practice is to notice anyone claiming any interest in the minor’s settlement including any ERISA plans, doctors, etc. and let the Chancellor decide.

If you represent an ERISA plan seeking reimbursement for medical benefits paid on behalf of a minor beneficiary, what do you do when noticed for a hearing in Chancery?  Clearly, you have the option to show up in the Chancery proceeding and state your claim.  It isn’t likely to go far, but you can try it.  What about removal?  If you remove the case to the Northern District of Mississippi, your case will likely be remanded to state court and you could be looking at sanctions similar to the Ashley Healthcare Plan case.  If you have the ability to remove the case to the Southern District of Mississippi, you might do a bit better if your case is assigned to Judge Jordan and he follows Richardson.  In either event, you better have a long talk with your client, followed up in writing concerning the potential for recovery and the potential for sanctions.  At some point this issue will travel the path to the Fifth Circuit and ultimately the STOTUS.  Until then, the uncertainty creates an environment where all parties may do well to compromise.

 

Can a convicted felon hunt with a bow or crossbow in Mississippi?

Archery season opened in the Delta and Hill Zones of Mississippi today.  Hunters will hit the woods with bows and crossbows in search of backstrap and big racks.  While many Mississippians are prevented from hunting with a gun or muzzleloader due to a prior felony conviction, they can use a bow or crossbow to hunt deer in Mississippi.

The Mississippi Attorney General issued an opinion in 2004 expressly allowing convicted felons to possess bows and crossbows.  See 2004 WL 555121 (Miss.A.G.) Opinion No. 2004-0043, dated February 13, 2004.  The opinion states:

It is the opinion of this office that a muzzle loading rifle or a muzzle loading shotgun is within the meaning of the term “firearm” as used in Mississippi Code Annotated Section 97-37-5. However, the statute does not include weapons such as a traditional bow and arrow or crossbow. Therefore, a convicted felon may possess (and consequently hunt with) a traditional bow and arrow or crossbow.

If you have been convicted of a felony and want to hunt with a firearm rather than a bow or crossbow, check with an attorney in your area to see if your conviction can be expunged.  Our law firm does not handle expungements, but we can often recommend someone in your area if you don’t know anyone.  Even if you have previously consulted with an attorney that told you your conviction couldn’t be expunged, ask again because the Mississippi Legislature revised the expungement laws recently.

Pro Se Party Wins His Divorce Appeal

Chancery Court can be difficult even for lawyers.  Things that appear insignificant can suddenly hit you like a sledge hammer on the pinky toe.  A party without benefit of legal counsel is at a significant disadvantage.  That doesn’t mean that self represented parties never win or the court disfavors them, but it is rare for a pro se party to succeed.

Dwayne Norris, representing himself, recently bucked the odds and prevailed in the appeal of his divorce case.  The facts underlying Norris v. Norris, NO. 2014-CP-00939-COA, are relatively short:

 Dwayne and Jacqueline were married in October 2008. They separated in May 2012. On June 20, 2012, Jacqueline filed her complaint for divorce on the ground of habitual cruel and inhuman treatment. Dwayne was served with the summons and complaint. Dwayne filed two pro se responses on July 17, 2012, and again on July 24, 2012, which the chancery clerk filed. On January 13, 2014, Jacqueline filed her notice of service of discovery to which Dwayne did not respond. Jacqueline filed her motion to set trial on March 11, 2014, and a notice of hearing set for April 9, 2014. On April 9, 2014, the chancellor entered an order that set the trial for June 5, 2014. The chancery clerk filed a certificate of mailing that indicated Dwayne was sent a copy of the order setting trial on April 9, 2014.  A trial was held on June 5, 2014. Dwayne did not appear. The trial was held in Dwayne’s absence. Jacqueline and Quinesha McCurdy, Jacqueline’s stepsister, both testified on Jacqueline’s behalf.. On June 12, 2014, the chancellor entered the final judgment that granted Jacqueline a divorce due to habitual cruel and inhuman treatment, changed her name, and allowed her to retain all property in her possession. The chancellor further awarded Jacqueline “$5,000 . . . as equitable distribution of the parties’ debt.”

Dewayne’s brief on appeal very colorfully challenged the sufficiency of the evidence supporting the $5,000 award with a few zingers:

She got the goldmine, I got the shaft.

The trial transcript reflects the lack of specificity and completely unsubstantiated estimations.

There are no defaults in divorce cases, and the defendant’s failure to appear should note provide a plaintiff with a blank check and abrogate the necessity of having an evidentiary basis for the amount of the judgment.

Because the appellant was not present to give his perspective on the factual circumstances, the wife and her attorney had the courtroom all to themselves, free to make assertions with impunity, representations without fear of contradiction, and to paint the vilest portrait of your appellant uninterrupted by objections.

This is like buying a pig in a poke.  There are no defaults in divorce cases, and the defendant’s failure to appear should not be license for a plaintiff to ring up the cash register without showing some evidentiary basis for the amount of the judgment.

The Court of Appeals sided with Dewayne:

Jacqueline did not introduce any documentary evidence to support her claim. Also, the record before us does not indicate that Jacqueline filed a financial statement, as required by Rule 8.05 of the Uniform Chancery Court Rules….Because we conclude that the chancellor’s findings are not supported by substantial evidence, we must also find that the chancellor’s award of $5,000 to Jacqueline was manifestly wrong.

Norris, at paragraph 12-13.

So what do we learn here?  Even if the other side doesn’t show up, put your proof in the record.  Don’t rely on guestimates.  Prepare a proper 8.05 financial statement and introduce it to support your request for an equitable distribution.

If you need to polish up on how to prepare a proper 8.05, take a look at Chancellor Primeaux’s 10 Tips For More Effective Rule 8.05 Financial Statements and his subsequent Five More Tips for More Effective Rule 8.05 Financial Statements.

More scam email directed to lawyers

The most recent spam to hit my mailbox:

Notice to Appear,

You have to appear in the Court on the August 28.

You are kindly asked to prepare and bring the documents relating to the case to Court on the specified date.

Note: The case will be heard by the judge in your absence if you do not come.

You can review complete details of the Court Notice in the attachment.

Yours faithfully,

Seth Moon,

Clerk of Court.

There are several problems here

  1. I don’t know of any clerk named Seth Moon in Mississippi
  2. The email didn’t originate from anyone in Mississippi
  3. The email doesn’t contain any court specific information
  4. The email doesn’t contain any case specific information
  5. Clerks in Mississippi do not use the scammer’s preferred closing of “Yours faithfully”
  6. Hearings don’t just pop out of thin air
  7. The email contains an attachment in zip file

Why is the .zip file of any significance?  Files that use the .zip extension are favored by hackers for a number of reasons according to computer technology expert Leo Notenboom in his blog entry “Why Spammers Love ZIP Files and How You Need to Stay Safe”.

Never open an attachment from anyone unless you are expecting the email and if you see a .zip file, double check with the sender to make sure they actually sent the file.

Will the AshleyMadison.com data dump lead to divorces in Mississippi?

AshleyMadison

AshleyMadison.com is a website designed for married people to find a person with which to have an affair. Their slogan is “Life is short.  Have an affair.”  The bottom of their site contains what appear to be little awards claiming “Trusted Security Award” and “100% Discrete Service.”  Not so.

By now you have probably heard about the AshleyMadison.com (AM) data dump.  This story began back on July 15 when online security expert Brian Krebs reported that a group of hackers named the Impact Team had compromised the databases and proprietary electronic information of AM, its parent company Avid Life media and related sites Cougar Life and Established Men.

A little over a month later on August 18 the data dump started showing up around the web.  Various sites have popped up where you can search the database by email address including this one.  According to Joseph Cox at Motherboard, the Impact Group as now dumped another set of data that is roughly twice the size of the first dump.

The two AM data dumps come on the heals of yet another data dump at adult hookup site AdultFriendFinder.com a few months back.  Cheaters beware.

So how long will it be before the first client walks into a lawyer’s office in Mississippi asking for a divorce based on the AshleyMadison or AdultFriendFinder data dumps?  If it hasn’t already happened, it won’t be long.

3 years to file for alienation of affection in MS, but when does the 3 years start?

As the above letter from a reditt user shows, there are a number of ways to seek revenge with a cheating spouse.  If you are in Mississippi, you can add the filing of an alienation of affection lawsuit against the paramour to the list.

Mississippi is one of only a handful of states that allows a legal claim for alienation of affection.To prevail, a plaintiff must show  the legal elements for the claim which are wrongful conduct of the defendant, loss of affection or consortium and a causal connection between the conduct and the loss.  Fitch v. Valentine, 959 So.2d 1012, 1015 (Miss. 2007).  In addition, the plaintiff must file the lawsuit within the statute of limitations.  “Thought alienation of affection is an intentional tort, it does not have a specifically prescribed statute of limitations.  Therefore, we apply the general three-year statute of limitation..” Fulkerson v. Odom, 53 So.3d 849, 851 (Miss. Ct. App. 2011).

Under Mississippi law, a claim of alienation of affection accrues when the alienation of affection or loss of affection is finally accomplished.  The accrual of the claim, then, occurs when the affections of the spouse involved in the extramarital relationship are alienated.  The affections of the spouse wronged by the affair are irrelevant to a determination of when the cause of action accrued.

Carter v. Reddix, et al, 115 So.3d 851, 857 (Miss. Ct. App. 2012)(internal citations omitted).  The discovery rule does not toll the three year statute of limitations. Fulkerson v. Odom, 53 So.3d 849 (Miss. Ct. App. 2011).

With those general principles in mind, the Mississippi Court of Appeals is set to her oral argument in the case of Shane Anderson v. James B. Ladner in cause no. 2014-CA-00730 on Wednesday at 10:30 a.m.

Webcast link.

Brief of Shane Anderson

Response of James B. Ladner

Reply of Shane Anderson

Anderson brought claims against Ladner for alienation of affection (AA), reckless infliction of emotional distress and punitive damages.  The statute of limitations for an intentional infliction of emotional distress claim is one year and a claim for punitive damages is not a stand alone claim, so lets focus on the AA claim.

At the trial court level, Ladner argued that the filing of the joint filed divorce triggered the running of the statute of limitations on the AA claim.  The trial court agreed and dismissed the case.

On appeal, Anderson primarily argues for a bright line rule that accrual of an alienation of affection case begins at the finalization of the divorce and that such a rule “would be more consistent with the irreconcilable differences divorce statute because the statute itself provides for an opportunity for reconciliation.”  Anderson’s Brief at p. 10.

Ladner counters that Anderson didn’t request a bright line rule before the trial court and that Anderson’s claim accrued at the time the complaint for divorce was filed.  Ladner also argues that Anderson is prohibited from arguing a different accrual date due to res judicata and collateral estoppel.

So when exactly does the three years start?  The positions advocated by both parties have positives and negative attributes.  A bright line rule provides clarity.  However, consider the situation where a married couple files for divorce, but subsequently reconcile in spite of an earlier alienation of affection by a third party.  Anderson’s position would be that an AA claim never accrued because there was no divorce.  Ladner’s position is in and of itself a form of bright line rule.  Any time a divorce was filed (regardless of whether the parties completed the divorce), the statute of limitations would begin to run on an AA claim.

Tune in tomorrow at 10:30 for the argument.

New email scam involving DHL going around

b58

My wife is a fan of all things involving the Minions.  When McDonalds paired with the makers of Despicable Me2 for Minion Happy Meal toys, I bought her the entire set from ebay rather than trying to kill ourselves via Happy Meals.  McDonalds again paired with the producers of the Minions movie so there is now yet another set of Minions headed out in Happy Meals to the delight of little children everywhere.  Once again, I ordered them from ebay.

I relay my Minion history to get to a point…..I am expecting a very important package of Minions in the mail.  This morning, rather than a package, I receive an email that appears to be from DHL.  Maybe the email is to inform me my Minions have been delayed or even worse, lost.

Scam1

Or, it has nothing to do with my Minions.  The email didn’t come from DHL.  I pulled up the email header info and looked for the originating IP address.  41.71.189.141  Guess where that is?  Nigeria.  If there was a way to block emails from an entire country, I would. Maybe you folks out there in internet land are different, but nothing productive comes to me by way of Nigerian email.

Scam2

Writ denied in alienation of affection case involving golfer John Daly

The United States Supreme Court refused to take up the alienation of affection case involving John Daly’s ex-wife and his alleged mistress.  The docket reflects that the petition for a writ of certiorari was denied today.

No. 14-1253
Title:
Anna Cladakis, Petitioner
v.
Sherrie Allison Miller
Docketed: April 17, 2015
Lower Ct: Court of Appeals of Mississippi
  Case Nos.: (2012-CA-01198-COA)
  Decision Date: June 17, 2014
  Rehearing Denied: October 14, 2014
Discretionary Court
  Decision Date: January 15, 2015
~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~
Apr 15 2015 Petition for a writ of certiorari filed. (Response due May 18, 2015)
May 4 2015 Waiver of right of respondent Hooters of America, LLC to respond filed.
May 4 2015 Waiver of right of respondents Provident Advertising and Marketing, Inc., et al. to respond filed.
May 18 2015 Waiver of right of respondent Sherrie Allison Miller to respond filed.
Jun 2 2015 DISTRIBUTED for Conference of June 18, 2015.
Jun 22 2015 Petition DENIED.

I previously discussed the Cladakis case here.  It is time to either set this one for trial or settlement talks.  Either way, John Daly better start making some big bucks to finance the lawyers, settlement and/or verdict that are headed toward his fiancee, Ms. Cladakis.  As for now, Ms. Miller has Daly and the future Mrs. Daly by the Titleist.

Funny quotes this Week

I don’t usually pay attention to my husband much of the time.

Juror number 872 in the Aurora Theater trial explaining why she didn’t inform the trial judge about a tweet concerning the case she read from her husband.  Full story at Denver Post.

I had to smoke one, you know?

Rapper Rick Ross explaining what lead to his arrest for a traffic violation and possession of marijuana.  For some reason, he thought it would be a good idea to squirt something at the reporter covering the story as well.

For their own good, vegetarians should never be allowed near fine beers and ales. It will only make them loud and belligerent, and they lack the physical strength and aggressive nature to back up any drunken assertions.

Anthony Bourdain.  Eleven more great quotes from the man with a job I envy.

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