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and as stated in Section 1, will “replace those statutes in Title 93, Chapter 13, Mississippi Code of 1972, which are repealed in Sections 11 through 19 of this act.”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.  GAP 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.

1

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

2

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

3

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.

 

 

Mandatory Harvest Reporting Bills – Legislative Update

House bill 1390 has passed the House.  The Senate’s companion bill (SB 2922) was amended, and then tabled subject to call.

http://billstatus.ls.state.ms.us/…/history/HB/HB1390.xml is the House Bill and http://billstatus.ls.state.ms.us/…/history/SB/SB2922.xml is the Senate bill. You can view the bills, amendments and history on those links.

SB 2922 as originally introduced and the Committee substitute required harvests to be reported within 72 hours.  It was subsequently amended to provide a five day reporting period.  The bill was tabled after the amendment.

HB 1390 that has passed the House does not have a time limit for harvest reporting and provides:

8 SECTION 1. Section 49-7-26, Mississippi Code of 1972, is
9 amended as follows:
10 49-7-26. (1) (a) The Mississippi Department of Wildlife,
11 Fisheries and Parks * * * shall develop, implement and regulate
12 a * * * mandatory harvest reporting program for white-tailed deer
13 or wild turkey or both. The purpose of this program is to collect
14 and compile harvest data * * * of such quality and quantity as to
15 be able to assist the Legislature and the commission in
16 formulating the wildlife resource conservation policy for the
17 State of Mississippi.
18 (b) * * * The harvest reporting program shall be simple
19 to use by sportsmen so as to promote compliance and accurate
20 reporting. The program may include, but is not limited to, such

21 means as a mobile smartphone application, online web-based
22 reporting, or such other electronic or digital method(s) as will
23 promote ease of use.
24 (c) The department shall provide an annual report for
25 the harvest reporting program to the Wildlife, Fisheries and Parks
26 Committees of the Senate and the House of Representatives.
27 * * *
28 ( * * *2) Each deer or turkey taken or possessed in
29 violation of the * * * harvest reporting program is a separate
30 offense.
31 SECTION 2. Funds appropriated to the Mississippi Department
32 of Wildlife, Fisheries and Parks shall not be expended on a
33 tagging program.
34 SECTION 3. This act shall take effect and be in force from
35 and after March 1, 2019.

People continue to refer to both of these as “tagging” bills.  Neither provides for tags and specifically prohibit the MDWFP from using appropriated funds on a tagging program.  If you feel strongly one way or the other, now is the time to let your Senators and Representatives know.

Settlement Releases by Phone

With increasing frequency we are hearing from individuals that were injured and then contacted by an insurance adjuster trying to settle their case within a day or two of the injury.

In a recent case, an adjuster contacted a man that was injured in a car wreck on the Monday morning following a Friday evening wreck.  The adjuster offered to pay him $3,500 to settle his claim.  The gentleman called me to ask “is this a good deal?”  Needless to say, it wasn’t a good deal.

The man had been to the hospital, but had absolutely no idea what his medical expenses were.  The man has his own medical insurance that will pay for his medical treatment, but his medical insurance company would have to be repaid from any settlement in the case.  The insurance company didn’t tell him that.  The man had follow up medical visits scheduled.  The insurance company had no intention of paying for those, but didn’t tell the man that.  At the time the insurance adjuster was trying to get the man to agree to a telephone release, the man was taking prescription pain medications that could have impacted his judgment.  Long story short, it was a good decision on the man’s part to contact an attorney before agreeing to a settlement.

There is no rush in settling an injury case.  The insurance company or adjuster for the person that injured you is not your friend.  You aren’t in their “good hands” and they are not there to help you.  They have one goal and that is to settle the case as quick and as cheap as possible.   Do not do it!

Do not speak with an adjuster beyond what is required to obtain their contact information.  If you have an attorney, give the adjuster your attorney’s contact information and terminate the call.  If you don’t have an attorney, tell the adjuster that you do not wish the discuss the case at this time.  Then, go find an attorney to consult on the matter.  Do not give the adjuster a statement (recorded or otherwise) about how the injury occurred.  You are under no legal requirement to do so and may seriously damage your case by speaking with the adjuster.

Do not sign any documents or an authorization for the adjuster to obtain medical records.  While some of your medical records may be relevant to your injury claim, you do not want to give an unlimited authorization for an adjuster to obtain every medical record that has been created for you since birth.

The bottom line – Always consult an attorney before speaking with an insurance adjuster or providing any documents to an insurance adjuster.

 

%d bloggers like this: