Garlic knots

A few weeks back my wife went to Meridian to visit family.  While on the visit, she ate at a place called Mimmo’s in Quitman.  According to my wife, it is the absolute best bread she ever tried (all the other food was really good too).

Last night I decided to have a try at making garlic knots.  I have no doubt Mimmo’s has a complicated family recipe handed down for generations.  However, since they haven’t passed this closely guarded secret around, I opted for a modified internet recipe and the handy dandy Oster bread machine.

  • 1.25 cups of warm water
  • 1.5 tablespoons of olive oil
  • 1 teaspoon of salt
  • 3.5 cups of flour
  • 2.5 teaspoons of sugar
  • 1 tablespoon of dried parsley
  • .5 teaspoon garlic powder
  • .5 teaspoon onion powder
  • .5 teaspoon dried basil flakes
  • 2 teaspoons dry yeast

After the bread machine did the work, I pulled the ball of dough out and cut it into 16 pieces.  Then, each piece was rolled out into a fat pencil shape and tied into a knot.  When the 16 knots were on the pizza plate, each was brushed with with garlic butter before going into the preheated 375 oven.  I cooked them until the edges started browning and then pulled them out for another brushing of garlic butter.  They weren’t browning quite as much as I wanted so, I turned on the broiler to finish them up.  When they came out of the oven, I sprinkled them with a mixture of salt, basil and oregano.

The end result:

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Not bad for a first try.  The interior was slightly overcooked.  My wife liked them, but they aren’t Mimmo’s.  Better luck next time.

 

Think before you send.

Some 10+ years ago a defense lawyer as young as I was filed a motion in limine a few days before trial.  Most of it was baseless and by my estimation designed to either get a few more billable hours in or distract me from trial preparation.  Nevertheless, I had to respond to it.  So on a Friday afternoon, I went item by item and responded in a dignified manner…..until I got to the last item.

Plaintiff should be precluded from arguing that defendant is represented by a powerful big city law firm.

Sure enough, the defendant was represented by a law firm much larger than mine.  Most every defendant is.  They had 50+ lawyers in offices in Jackson and a few other places around the southeast.  However, in the whole scheme of things this defense lawyer was not from a big city and his firm’s power was suspect even then (the firm doesn’t exist today).  Rather than simply agreeing not to bring up the subject, I replied with a Friday afternoon snark.

Plaintiff’s counsel agrees not to comment of the defendant being represented by a powerful big city law firm as same would be untrue.

As is advised by legal writing experts, I have since axed the word “same” from my writing, but this was 10+ years ago.  I mailed off the response and went about my weekend.  After closing arguments and while waiting for the jury verdict, the senior partner defending the case remarked that my response wasn’t very gentlemanlike.  He was correct, and I apologized to him.  Since that day, I have made it a policy to always let a response sit for a day after drafting prior to sending it out.

A similar policy would have well served Mississippi House of Representative member Jeffrey Guice of Ocean Springs this week.  A Richland mother, Nicole Nichols, wrote Guice seeking help with the Medicaid system for her diabetic daughter.  Guice’s response:

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I don’t know Guice.  Maybe he is rude to everyone or maybe Ms. Nichols simply caught him on a bad day at a bad time.  Either way, Guice would do well to follow Seth Godin’s email checklist:

Email checklist

Before you hit send on that next email, perhaps you should run down this list, just to be sure:

  1. Is it going to just one person? (If yes, jump to #10)
  2. Since it’s going to a group, have I thought about who is on my list?
  3. Are they blind copied?
  4. Did every person on the list really and truly opt in? Not like sort of, but really ask for it?
  5. So that means that if I didn’t send it to them, they’d complain about not getting it?
  6. See #5. If they wouldn’t complain, take them off!
  7. That means, for example, that sending bulk email to a list of bloggers just cause they have blogs is not okay.
  8. Aside: the definition of permission marketing: Anticipated, personal and relevant messages delivered to people who actually want to get them. Nowhere does it say anything about you and your needs as a sender. Probably none of my business, but I’m just letting you know how I feel. (And how your prospects feel).
  9. Is the email from a real person? If it is, will hitting reply get a note back to that person? (if not, change it please).
  10. Have I corresponded with this person before?
  11. Really? They’ve written back? (if no, reconsider email).
  12. If it is a cold-call email, and I’m sure it’s welcome, and I’m sure it’s not spam, then don’t apologize. If I need to apologize, then yes, it’s spam, and I’ll get the brand-hurt I deserve.
  13. Am I angry? (If so, save as draft and come back to the note in one hour).
  14. Could I do this note better with a phone call?
  15. Am I blind-ccing my boss? If so, what will happen if the recipient finds out?
  16. Is there anything in this email I don’t want the attorney general, the media or my boss seeing? (If so, hit delete).
  17. Is any portion of the email in all caps? (If so, consider changing it.)
  18. Is it in black type at a normal size?
  19. Do I have my contact info at the bottom? (If not, consider adding it).
  20. Have I included the line, “Please save the planet. Don’t print this email”? (If so, please delete the line and consider a job as a forest ranger or flight attendant).
  21. Could this email be shorter?
  22. Is there anyone copied on this email who could be left off the list?
  23. Have I attached any files that are very big? (If so, google something like ‘send big files’ and consider your options.)
  24. Have I attached any files that would work better in PDF format?
  25. Are there any:-) or other emoticons involved? (If so, reconsider).
  26. Am I forwarding someone else’s mail? (If so, will they be happy when they find out?)
  27. Am I forwarding something about religion (mine or someone else’s)? (If so, delete).
  28. Am I forwarding something about a virus or worldwide charity effort or other potential hoax? (If so, visit snopes and check to see if it’s ‘actually true).
  29. Did I hit ‘reply all’? If so, am I glad I did? Does every person on the list need to see it?
  30. Am I quoting back the original text in a helpful way? (Sending an email that says, in its entirety, “yes,” is not helpful).
  31. If this email is to someone like Seth, did I check to make sure I know the difference between its and it’s? Just wondering.
  32. If this is a press release, am I really sure that the recipient is going to be delighted to get it? Or am I taking advantage of the asymmetrical nature of email–free to send, expensive investment of time to read or delete?
  33. Are there any little animated creatures in the footer of this email? Adorable kittens? Endangered species of any kind?
  34. Bonus: Is there a long legal disclaimer at the bottom of my email? Why?
  35. Bonus: Does the subject line make it easy to understand what’s to come and likely it will get filed properly?
  36. If I had to pay 42 cents to send this email, would I?

 

Rib time!

Cooking ribs is a constant work in progress for me.  Add this, remove that, more time / less heat, higher heat / less time, foil time, type of wood for smoke, new rubs, types of sugar, etc.  There are so many variables in cooking ribs that unless you only change one at a time, it is quite hard to exactly replicate the taste and texture once you finally get your ribs to a perfect 10.  What works for me may not always work for you, but here is something to try. A word of caution……I really, really like sweet ribs.  If you don’t like sweet ribs, skip this post and go read about something else.

Ingredients:

Fire up your smoker and get the temperate as close to 245 as you can.  Don’t overshoot the temperature if you are using a kamado style egg cooker or it will take a significant amount of time to drop the temperature back down to a reasonable level.  Use a liquid pan in the smoker.  I have used water and apple juice at different times, but can’t tell the difference between the two in the finished product.

Pull the membrane off the back of the ribs and apply a thin layer of yellow mustard to each side.  Apply the Rebel Butcher rub evenly across both sides of the ribs.  I buy this rub in a large box that is roughly 20 pounds if I remember correctly.  Then break the rub down into small zip lock bags for storage in the freezer until ready for use.

Always use fresh rub.  If the rub has been in your cabinet for over a month, toss it out.  At best, the flavor will be weak.  At worst, the old rub will have absorbed something from your cabinet that makes your prized ribs taste like cinnamon, cilantro or ginger.

Once you have the rub on the ribs, let them sit in a refrigerated environment for an hour or so while your smoker is getting up to temp.  Then place the ribs bone side down and cook with a smoker temperature as close to 245 degrees as you can for 2 hours.  While the ribs are sucking up heat and smoke, spray them with pineapple juice every 30 to 40 minutes.

After your ribs have cooked for 2 hours, you begin the wrap process.  Tear off a large section of heavy duty aluminum foil of sufficient size to completely wrap each slab of ribs.  Do not skimp on the heavy duty foil with some cheap store brand.  With the aluminum foil down, evenly spread a thin layer of turbinado sugar.  Then a stripe of the Tiger Pepper Jelly.  Then a stripe of Parkay squeeze butter. Then a layer of Blackburn syrup.  Then a layer of honey.  Lay a slab of ribs meat side down on the ingredients.  Repeat all of the ingredients to the bone side that is now facing up.  Wrap the foil tightly around the slab of ribs and return to the smoker.  Cook the wrapped slabs for somewhere between 45 minutes to an hour.

There are plenty of people out there advocating what is known as the 3-2-1 method of 3 hours on the grill, followed by 2 hours in foil and then finished with 1 hour back on the grill.  In my experience, a 3-2-1 cook results in ribs that are well overdone.  Ribs should have some slight degree of resistance.  Ribs aren’t pulled pork.  If you disagree and want your ribs to fall completely off the bone, go with the 3-2-1 method or just toss them into a crockpot you rib hating communist.

After the ribs have been in the foil cooking for their 45 minutes to an hour, use gloves to remove them from the cooking area.  They will be incredibly hot……close to napalm.  If, contrary to my advice above, you skimped on the heavy duty foil it will now fail.  The liquid will fall on your feet causing burns and you will probably drop your ribs on the ground.  Good news for the dog, but not so good for you.  Go with the heavy duty foil!

Open the foil and return the ribs to the smoker with the meat side up.  Retain the liquid from the foil and mix it half and half with Sweet Baby Ray’s.  Brush on a layer of your retained liquid/Baby Ray’s to the ribs and then dust them very lightly with turbinado sugar and the Rebel Rub.  Wait 30 minutes and apply another layer of flavor by repeating the process.  Given them another 30 minutes on the smoker and you will have finger licking ribs.

That’s all.  It isn’t hard, but the process is time consuming.  About the only way to ruin ribs with this recipe is to get distracted during the cook and overshoot the times or temp.

Can I have a pit bull where I live in Mississippi?

Yes, I realize that after yesterday’s Dog Bite Laws in Mississippi post, this is the second post in two days about dogs.  I had this information from previous dog bite cases our firm has handled and intended to update it for last last week’s National Dog Bite Prevention Week, but got tied up with other commitments until this week.

Often created in response to high profile dog bite events that make the evening news, many areas in Mississippi have breed specific laws (BSLs) which regulate or outright ban the ownership or possession of specific breeds of dogs.  The City of Clinton, where my office is located, has such a ban.  The City of Clinton’s ordinance bans the following:

  • American pit bull terrier
  • Staffordshire bull terrier
  • American Staffordshire Terrier
  • Rottweiler
  • Any dog whose sire or dame is a dog of the above breeds
  • Any dog whose owner registers, defines, admits or identifies the dog as one of the above breeds
  • Any dog substantially conforming to the above breeds
  • Any dog which is of a breed commonly referred to as a pit bull of rottweiler
  • Any vicious dog which is found at large in violation of the ordinance.

Hinds County, where my home is located, has an ordinance which bans “wild animals” anywhere in the incorporated and unincorporated areas of Hinds County and defines them in part as “hybrid wolf-dogs, pit bull breeds (purebred or any amount) and/or fighting dogs.”  The Ordinance provides that an owner of wild animals may apply for a variance from the Hinds County Sheriffs Department, Animal Control Division.  Because the ordinance applies in both incorporated and unincorporated areas of Hinds County, it includes all cities within Hinds County.  Therefore, in cities such as Jackson, Clinton, Byram, Terry, Bolton, Edwards and Utica, the Hinds County ban is in addition to any city dog or dangerous animal ordinances.

The City of Jackson does not have breed specific legislation but does have a dangerous and potentially dangerous dogs ordinance.  Scroll down to page 183 for Article IV, Section 18-101.  A dangerous dog is defined to include those that have caused injury to a person or domestic animal and those that have been designated as a potentially dangerous dog and that has engaged in behavior that poses a threat to public safety.

The City of Byram includes wolf hybrids, pit bulls and fighting dogs as wild animals that are a “menace to the public” and prohibits allowing them to run at large.

Rankin County’s Ordinance defines hybrid wolf dogs, pit bull breeds and fighting dogs as wild animals that could be a menace to the public and prohibits their ownership without a Board of Supervisors approved variance.  The variance requires an inspection of the property, proof of $100,000 in homeowners liability insurance and proof that the homewoner’s insurance company is aware of the dog on the premises.

Madison County’s Ordinance does not prohibit any specific breeds but does regulate dogs running at large and nuisance animals.

City of Ridgeland Ordinance 14-171 bans: American pit bull terriers, Staffordshire bull terriers, American Staffordshire Terrier, wold hybrids, Rottweilers, any dog whose sire or dame is a dog of the above breeds, any dog whose owner registers, defines, admits or identifies the dog as one of the above breeds, any dog substantially conforming to the above breeds, any dog which is of a breed commonly referred to as a pit bull, wolf, wolf hybrid and any dog declared vicious.

City of Greenville Ordinance 8-117 requires registration of all pit bulls and provides in part:

Because of the pit bull dog’s inbred propensity to attack other animals, and because of the danger posed to humans and animals alike by a pit bull dog when running loose or while running together in a pack, pit bull dogs must at all times be securely confined indoors, or confined in a securely and totally enclosed and locked pen with a top, all four (4) sides at least six (6) feet high, and with concrete flooring to prevent escape by tunneling; pen shall have a five (5) foot minimum set back from property lot line; and such enclosure shall likewise have a conspicuous sign affixed thereto displaying the words “Dangerous Dog.”

At any time that a pit bull dog is not confined as required in subsection (1) above, the dog shall be muzzled in such a manner as to prevent it from biting or injuring any person or animal, and kept on a leash with the owner or custodian in attendance; provided, however, that no pit bull dog may be walked within one hundred fifty (150) feet of any school ground, play ground or park, nor enter into such school ground, play ground or park.

City of Greenwood Ordinance 4-44 and City of Clarksdale Ordinance 4-37 are substantially similar to the City of Greenville’s pit bull ordinance.

The City of Natchez does not have breed specific laws, but does does have Ordinance Section 10-4 stating “No dog or other animal of dangerous, vicious, fierce or mischievous propensities or tendencies may be at large at any time within the limits of the city” and if any animal running at large attacks or attempts to attack a person or animal, the dog or animal is “conclusively presumed” to be a dog of vicious or dangerous propensities.  The City of Natchez also requires:

Whenever any vicious dog or one that has previously bitten any person is kept upon any premises, it shall be the duty of the keeper and of the owner of the dog to post a notice conspicuous to the public at each entrance to such premises reading in large letters, “BAD DOG HERE.”

Chances are, anywhere you live in the state of Mississippi has either a city or county ordinance regarding ownership of dogs and potentially outlawing the ownership of specific dog breeds.  If you own or intend to buy a pit bull, rottweiler, wolf hybrid, or any large dog for that matter, make sure you can legally possess it where you live.  Failure to do so can result in criminal penalties for the mere possession of certain breeds and civil liability should the prohibited dog injure a person or another animal.

If you, a family member or loved one are injured by a third party’s animal (whether it be a dog, goose, monkey or whatever), contact us and we will consult with you about the claim at no cost to you.

Dog Bite Laws in Mississippi

According to The American Veterinary Medical Association (AVMA), over 4.5 million people are bitten by dogs each year, over 800,000 of those bites require medical attention and roughly half of the dog bites that require medical attention are to children.  Any dog can, and under the right conditions, will bite.  However, most of the cases we see involve Pit Bulls, Rottweilers, or some mix breed that looks like one of the two.

Statistically, the Molosser breeds, including Pit Bulls, Rottweilers, Presa Canarios, Cane Corsos, mastiffs, Dogo Argentinos, Fila Brasieros, Sharpeis, boxers, and their mixes accounted for 86% of the reported fatal and disfiguring dog bites for the years 1982-2014. See Merritt Clifton study available at http://www.dogsbite.org/pdf/dog-attack-deaths-maimings-merritt-clifton-2014.pdf  According to K-9 Journal, other significant contributing factors are the sex of the dog (92% of bites are from male dogs) and dogs that are kept on chains (approximately 25% of bites are from dogs kept on chains).

“Rules imposing liability for harm caused by domestic animals find their origin in authority no less ancient than the Pentateuch.”  Wilson v. Simmons, 103 S.W.3d 211, 217, 2003 Mo. App. LEXIS 184, *11 (Mo. Ct. App. 2003).  Traditionally, animal attack laws have been categorized as following either the “one bite rule” or strict liability.  In simple terms, the one bite rule requires a dog to have actually bitten someone or thing prior to the bite for which a plaintiff seeks to attach liability.  A strict liability rule imposes liability to animal owners for all injuries caused by their animals regardless of whether or not the animal has previously injured anyone.  The one bite rule and strict liability approaches are not uniform from state to state.

Texas – An owner of a vicious animal can be strictly liable for harm, while an owner of a non-vicious animal can be “subject to liability for his negligent handling of such an animal.”  Bushnell v. Mott, 254 S.W.3d 451, 452, 2008 Tex. LEXIS 217, *3, 51 Tex. Sup. J. 681 (Tex. 2008).

Louisiana – Pursuant to Louisiana Civil Code Article 2321:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person’s provocation of the dog. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Also see Coburn v. Dixon, 2016 La. App. LEXIS 815, *7-8, 15-1095 (La.App. 3 Cir. 04/27/16); (La.App. 3 Cir. Apr. 27, 2016).

Tennessee –    Tenn. Code Ann. § 44-8-413 (2007), pertaining to injuries caused by dogs, provides in pertinent part:

(a)(1) The owner of a dog has a duty to keep that dog under reasonable control at all times, and to keep that dog from running at large. A person who breaches that duty is subject to civil liability for any damages suffered by a person who is injured by the dog while in a public place or lawfully in or on the private property of another. 

(2) The owner may be held liable regardless of whether the dog has shown any dangerous propensities or whether the dog’s owner knew or should have known of the dog’s dangerous propensities.

Also see Moore v. Gaut, 2015 Tenn. App. LEXIS 995, *11-12 (Tenn. Ct. App. Dec. 30, 2015).

Mississippi – Mississippi follows what is known as the dangerous propensity rule.  There must be “some proof that the animal has exhibited some dangerous propensity or disposition prior to the attack complained of” and “it must be shown that the owner knew or reasonably should have known of this propensity or disposition and reasonably should have foreseen that the animal was likely to attack someone.” Poy v. Grayson, 273 So.2d 491, 494 (Miss. 1973).

The dangerous propensity rule falls between a one bite rule and strict liability.  An injured person does not have to show that the dog or animal has previously bitten, but the animal owner does not incur liability for any and every bite.  The injured person must demonstrate that the animal exhibited some dangerous propensity or disposition of which the owner knew or should have known for liability to attach to the animal owner.

In addition to imposing liability on dog owners, Mississippi has also applied a hybrid dangerous propensity /premises liability rule  to lessors of property where the lessor has actual or constructive knowledge of a dangerous animal owned by others in an area of the lessor’s property designated by the lessor for common use.  See Mongeon v. A & V Enterprises, 733 So.2d 170, 171 (Miss. 1997).  In Mongeon,  evidence that a resident manager and a shareholder of the property were notified of the dogs in question growling at a person near the washateria prior to attacking the plaintiff in the same area was sufficient “credible evidence from which the jury may have drawn a reasonable inference supporting its verdict.”  Mongeon, at 172.

As recently made clear by the Mississippi Supreme Court in Olier v. Bailey, 164 So.3d 982 (Miss. 2015) the dangerous propensity rule and premises liability can be separate legal theories and are not mutually exclusive.  In Olier, the plaintiff sued Bailey for a broken arm sustained by Olier while fleeing from a goose attack on Bailey’s property.  The trial court and the Mississippi Supreme Court found that Olier was a licensee as a matter of law because she “came to Bailey’s home at Bailey’s invitation entirely for her own benefit.”  Olier, at 988.  As a licensee, the only duty Bailey owed Olier pursuant to premises liability law was “to refrain from willfully or wantonly injuring her.”  Id., at 988.  The Mississippi Supreme Court found Olier could not “proceed under a theory of premises liability as a matter of law.  However…whether Bailey breached her duty of care toward Olier as an animal owner is a different question.” Id., at 990.

With respect to the dangerous propensity rule portion of Olier’s claim, the Court reiterated the familiar standard that “an actual physical attack was not necessary to put an owner on notice of his or her animal’s dangerous propensities, but instead held that evidence of barking, growling, and chasing can be sufficient to put an animal’s owner on notice of the animal’s dangerous propensity.”  Id., at 993.  It was alleged that Bailey’s geese squawked, hissed and bit Olier.  Id., at 992.  It was further alleged that Bailey had given a bamboo pole to Olier to fend off the geese.  At some point Olier dropped the pole and a young goose bit Olier in the crotch.  Id.  Olier then tripped and broke her arm trying to retreat from the geese.  Id., at 992.

In applying the dangerous propensity rule to the facts, the Court reversed Bailey’s summary judgment holding “there remains a dispute of fact whether Olier’s injury was reasonably foreseeable under the totality of the circumstances….Under the totality of the circumstances, if the injury by an animal is reasonably foreseeable, the animal’s owner may be held liable. Id., at 994.  As a result, Olier’s case will go back for trial where she will have an opportunity to convince a jury that her injury should have been reasonably foreseeable to Bailey.

If you, a family member or loved one are injured by a third party’s animal (whether it be a dog, goose, monkey or whatever), consult with an attorney about the situation immediately.  While dog attacks to children are usually the most serious of these claims, we have successfully handled claims where our adult clients suffered broken ankles and various injuries other than dog bites as a result of the negligence of animal owners.

In investigating these claims on behalf of our clients, there are often items of evidence which need to be immediately preserved such as veterinary records, witness statements, police or animal control reports, neighborhood association minutes and homeowner’s insurance documents.  These items can be lost, misplaced or destroyed if you do not promptly pursue your claim.  Contact us to discuss your injury claim at no cost.

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.

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