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.

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.

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:

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.

Minors’ settlements in Mississippi

I spent this morning before a chancellor obtaining approval for a minor’s personal injury settlement.  Prior to the hearing, I followed a routine that virtually ensures success. First, I reviewed Chancellor Primeaux’s outline for minor’s settlements.  Second, I reviewed attorney Nick Thompson’s Best Practices for Minors’ Settlements.  Finally, I prepared my clients for what to expect at the hearing and used an outline I prepared several years ago that covers most every question I have heard a chancellor or defense attorney ask during a minor’s settlement.

I won’t guarantee that following this testimony outline will result in no questions from the bench, but it will go a long way toward getting the required testimony before the Court so it can make an informed decision.  If you have any suggested additions or revisions, please send an email to randywallace@boydattorneys.com

Testimony Outline of Parent as Natural Guardian

  1. Please state your name for the record.
  2. What is your relationship to __________________________?
  3. Did you file a lawsuit on behalf of ____________________against _________________ alleging __________________?
  4. Is it correct that the general type of damages you alleged in the Complaint were for _______________________________?
  5. Ms. or Mr. __________________, are you in fact the mother/father of _______________________________?
  6. To the best of your knowledge, does anyone else claim to be the mother/father of ___________________?
  7. In your own words, please describe the incident where _______________ was injured.
  8. Are you aware that the Defendant(s) has denied all liability for the damages you alleged in your Complaint?
  9. Did ______________ receive medical treatment for his/her injury?
  10. Where did you take _________________ for medical treatment related to the injury?
  11. Please describe the medical treatment provided to _______________.
  12. Has ____________ finished all medical treatment related to this incident?
  13. If yes, do you anticipate any future medical treatment related to this condition?
  14. If no, what future medical treatment do you anticipate and what is the anticipated cost?
  15. Does ______________ have any permanent injuries/scarring?
  16. If yes, please describe the injuries/scarring.
  17. If no, please describe ________________’s current medical condition.
  18. Is it correct that the medical expenses claimed as a result of alleged negligence total ______________?
  19. Have these medical bills been paid?  Who paid?
  20. To your knowledge, does anyone assert a lien against the proposed settlement?
  21. After the Complaint was filed and the Defendant(s) filed an Answer, did there come a point in time at which a potential settlement was reached?
  22. Are you familiar with the terms of the proposed settlement?
  23. Is it your understanding that in exchange for a dismissal of the lawsuit, the Defendant has agreed to pay of the sum of $_____________.
  24. Did you sign a legal agreement for us to represent you and _________________in this matter?
  25. Pursuant to that legal agreement, are attorney’s fees calculated as______________________________________?.
  26. Do you understand that attorney’s fees in the amount of $____________ will be deducted from the proposed settlement?
  27. Do you understand that Medicaid (or other lien) will require repayment of $_____________?
  28. Do you understand that after all attorney’s fees and _______________lien is paid, your son/daughter will receive $_________________.
  29. Are you satisfied with this settlement amount?
  30. Are you satisfied with the legal services which our firm has performed for you?
  31. Do you understand that by settling this case, you are giving up ____________________’s right to a trial by a jury of your peers in ____________ County, Mississippi?
  32. Do you understand that if you did not settle and the case were to go to trial, _______________ might potentially recover more than the amount you are agreeing to settle this case for?
  33. Do you understand that if you did not settle and the case were to go to trial, _____________________ might potentially recover less than the amount you are agreeing to settle this case for and in fact you might recover absolutely nothing at all?
  34. Do you understand that after a trial by jury, you would be entitled to appeal to the Mississippi Supreme Court and they could review the jury verdict?
  35. Do you understand that by settling, you are giving up _______________’s right to have a jury decide his/her case and ______________’s right to have the jury verdict reviewed on appeal?
  36. Do you understand that by agreeing to settle this matter, Cause No_______________, currently pending in the Circuit/County Court of             ____________, County Mississippi will be dismissed with prejudice?
  37. Do you understand that when the case is dismissed with prejudice, neither you nor ________________can sue this Defendant again based upon this incident even if you later discover additional facts or circumstances regarding this incident?
  38. Do you understand that when the case is dismissed with prejudice that any action you or ____________ currently have against the Defendant will be forever barred?
  39. Do you understand that the Defendant continues to deny all liability and is paying the settlement to buy his/her peace and to resolve the matter?
  40. Do you understand that the money you receive is not your money, but rather it is ____________________’s money?
  41. Do you understand that the money you receive is to be used for the sole benefit of __________________________?
  42. Do you understand that the settlement money will be held in a restricted guardianship account (if applicable)?
  43. Do you understand that you will be required to petition the court for approval to spend any funds held in the guardianship?
  44. Having considered all of this, do you believe that it is in _____________________’s best interests to settle this case on these terms?

Questions commonly directed to the Plaintiff’s attorney by the Court:

  1. How long have you practiced law and do you handle this type of case regularly?
  2. Do you believe that this settlement is in the best interests of ________________________?  Why?
  3. Why do you think the outcome of this case is doubtful?
  4. Do you think your fee is reasonable in this matter?
  5. How many hours have you devoted to this case?
  6. What exactly have you done in this case (discovery, depositions, motions, etc.)?
  7. If approved, where do you intend to deposit the ward’s portion of the settlement funds?
  8. How long do you need to have the ward’s money deposited in the account and have the bank acknowledgement filed in this case?

One last thing…..always bring the minor to the hearing so the Court can verify the condition of the minor.

The Nasty Side of Judicial Elections

Years ago judicial elections in Mississippi consisted of the candidates making stump speeches about their qualifications.  Members of the community would support or oppose judges based on their interactions and experiences with the candidates and recommendations from friends and family.

Those days are gone.  Now, outside groups and political action committees (PACS) come to Mississippi and pour hundreds of thousands of dollars into negative attack ads.  The latest example is the Mississippi Supreme Court race between current Supreme Court Justice Jim Kitchens and Court of Appeals Judge Kenny Griffis.

Both Justice Kitchens and Judge Griffis are good and honorable men.  Prior to the election, Justice Kitchens spoke with Judge Griffis and there was gentleman’s promise that both would run clean campaigns.

That promise of course doesn’t bind these special interest groups seeking to influence the election.  The latest attack ads against Justice Kitchens claim he used “loopholes” to help criminal defendants.  This simply isn’t true.  Justice Kitchens, like any judge, is bound to follow the Mississippi and United States Constitution.  Those Constitutions are not “loopholes” that can be set aside whenever the result is unpleasant.  Those Constitutions are the bedrock established by our founding fathers to help ensure a just government.

One of the groups that is attacking Justice Kitchens is called the Center for Individual Freedom (CIF).  Their stated mission is “to protect and defend individual freedoms and individual rights guaranteed by the U.S. Constitution.”  Little is known about the source of their funding, but records show that between 2010 and 2011 they accepted $2,750,000 from Karl Rove’s Crossroads GPS group and once received financial support from the National Smokers Alliance, a tobacco industry front group.  Rove’s Crossroads GPS doubled down giving another $2,190,000 to CIF between 2012 and 2014.

In 2012, the CIF spent a reported $1.8 million in Arkansas to attack AG candidate Nate Steel.  The advocacy group Southern Progress described CIF as:

The Virginia-based Center for Individual Freedom is a tobacco industry front group founded by a major tobacco industry lobbyist with funds from all of the big tobacco companies. In fact, the group is born directly from the ashes of the National Smokers Alliance whose mission was “dedicated to fighting discrimination against smokers and to supporting business owners” that sold tobacco products. Thomas Humber, founder of the Center for Individual Freedom was also president of the National Smokers Alliance (NSA).

..What does CFIF do? Just like their predecessor the NSA, the Center for Individual Freedom has lobbied to kill common sense smoking restrictions and any tobacco tax no matter what. In recent years, they’ve gotten even more slick trying to do away with state laws that require donors to groups be disclosed. How convenient — now they can spend money to do away with tobacco taxes and smoking restrictions without having to disclose their donors!

Equipped with all this revealing information, we now want to know what exactly Leslie Rutledge has promised Big Tobacco? What do they expect from her? Why is CFIF so concerned with the Arkansas Attorney General race?
Consider this:

The Arkansas Attorney General oversees the administration of the tobacco master settlement agreement of 1998, which means $7 billion per year to the states – and $60 million a year to Arkansas. The tobacco companies hate the regulatory compliance for the tobacco settlement. They hate when AGs band together to stop the glamorization of smoking on movie screens that sets a bad example for children, and Big Tobacco doesn’t like it when there is pushback on child-friendly advertising images like Joe Camel and candy-flavored tobacco that entices young people to smoke. And they don’t like the push by state AGs to include the new vapor cigarettes and all their fun and youth-enticing flavors to be included in the overall tobacco settlement.

The Center for Individual Freedom isn’t concerned with your individual freedom or Constitutional rights.  It gathers money from big business and other PACS.  Those millions in dark money are then funneled into elections around the country to influence elections with dirty attack ads.

There are no judicial candidates in Mississippi running for Supreme Court that seek out legal loopholes to help criminals. I have known Justice Jim Kitchens professionally for 20+ years.  My father was a career law enforcement officer.  Even before I had ever met Jim Kitchens, I remember my father speaking well of then attorney Jim Kitchens.  That made an impression on me as speaking well of attorneys was not something my father did often.

Long story short……….Don’t be deceived on election day.

Another First

Firsts of anything have always been memorable to me whether it was my first dog, girlfriend, school, gun, whitetail deer, 10 pound bass or whatever.

Practicing law is no different.  I remember back to my first divorce trial, first injury trial, first win and unfortunately, my first loss.  The older I get, the occurrence of firsts is significantly less frequent, but they do still occur.

This morning I experienced another first.  It was the first time in 16 plus years and several hundred attempts that I have walked into the Hinds County Chancery Courthouse in Jackson and passed through the metal detector without hearing a beep.

I was so accustomed to the beep that I had already walked forward and lifted my arms for the deputy with the handheld metal detector.  I am not certain who was more surprised, me not hearing the beep or the deputy looking at my outstretched hands which probably appeared to him like I wanted a hug.  When I told him it was the first time in 16 years that the metal detector hadn’t beeped, he laughed and checked to make sure it was still functioning.  It was.  Here’s to another first.  Good Lord willing, hopefully I will experience a few  more.1st

Private landowners lose dog lawsuit against MDWF&P

Back in February of last year, I mentioned that a group of landowners filed a lawsuit in Hinds County Chancery Court against the Mississippi Department of Wildlife, Fisheries and Parks, the Mississippi Commission on Wildlife, Fisheries and Parks, and Sam Polles, in his official capacity as Executive Director of the Mississippi Department of Wildlife Fisheries and Parks.

The plaintiffs claimed that dog hunters caused free ranging hunting dogs to cross their land and the MDWFP failed to take any action to prevent these dogs from intruding on the property of the plaintiffs.  Plaintiffs also alleged that the MDWFP has failed to implement a system of permitting and fines.  The plaintiffs’ legal theories were based on public nuisance, an unconstitutional taking of their property, civil trespass, and private nuisance.

On September 1, the Court entered an opinion denying plaintiffs’ claims.  The Court held:

  • “the inaction of creating a permitting system for the particular use of free-running dogs has not injured a public right of the Plaintiffs, as the power to regulate hunters is within the discretion of MDWFP”
  • “property has not been taken by government action, as the individuals who have allegedly harassed and injured the Plaintiffs’ property are not acting on behalf of the state nor in an official capacity for the state”
  • “a per se taking has not occurred”
  • “no private nuisance has occurred”
  • “the inaction of regulation does not result in a civil trespass on Plaintiffs’ land.”

As I originally wrote back in August of last year, this case is a dog that won’t hunt.  If these landowners want to change the laws on hunting with dogs in Mississippi, the legislature is the place to do it rather than the courts.



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.


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