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.


How to wreck your injury case

I previous blogged about things NOT to do during your divorce.  It has turned out to be one of the more popular subjects on my blog based on 200K+ page views.  Now that you know how to better survive a divorce, lets talk about things you shouldn’t do if you have an injury case.  These are in no particular order of importance.


1.  Lie to your lawyer or withhold evidence.

2.  Fail to notify your lawyer that you are preparing to file bankruptcy or file bankruptcy without telling your injury lawyer.

3.  Destroy evidence.

4.  Speak with an insurance adjuster before speaking with your lawyer.

5.  Delay medical treatment.

6.  Disregard your attorney’s advice.

7.  Talk to your doctor about your legal case.

8.  Talk to anyone other than your lawyer about your case.

9.  Take actions/perform activities you claim you cant do.

10.  Make a wage loss claim if you don’t want to open up your finances to scrutiny.

11.  Claim any element of damages you cannot back up.

12.  Fail to obtain information about your injury as soon as possible.

13.  Fail to keep a diary about the incident for your attorney.  Write down everything you think is important.

14.  Admit fault.

15.  Post about your injury or case to social media sites.

16.  Enter into a quick settlement agreement with an insurance company over the phone.

17.  Fail to repay Medicare, Medicaid or an ERISA plan for medical care they paid on your behalf resulting from the negligence of a third party.

There are other things for a plaintiff to avoid while pursuing a legal case, but these were fresh on my mind from mistakes made by potential clients in the not too distant past.

Legislation of Interest to Mississippi Hunters – Part 2 – Reporting of Deer and Turkey

Friday, I started a multi-part post about legislation of interest to Mississippi Hunters.  Part 1 discussed proposed legislation related to wildlife enclosures.  Next up is mandatory harvest reporting of deer and/or turkey.

The Committee substitute for Senate Bill 2922 provides in relevant part:

14 SECTION 1. Section 49-7-26, Mississippi Code of 1972, is
15 amended as follows:
16 49-7-26. (1) * * * The * * * commission * * * shall
17 develop, implement and regulate a * * * mandatory harvest
18 reporting program for white-tailed deer and/or turkey to collect
19 and compile harvest data * * * of such quality and quantity as to
20 be able to assist the Legislature and the commission in
21 formulating the wildlife resource conservation policy for the
22 State of Mississippi. The harvest reporting program authorized by
23 this section shall be a system that will be simple and usable by
24 all hunters so as to promote compliance and accurate reporting and
25 may include, but not be limited to, such means as a mobile smart
26 phone application, online web-based reporting, or such other
27 electronic or digital methods that promote ease of use by hunters.
28 (2) Hunters shall report deer and turkey that they harvest
29 within seventy-two (72) hours after the harvest. This subsection
30 shall not apply to deer harvested on private lands that are under
31 the Deer Management Assistance Program (DMAP).

32 ( * * *3) The department shall provide an annual report
33 regarding the harvest reporting program to the Wildlife, Fisheries
34 and Parks Committees of the Senate and the House of
35 Representatives.
36 * * *
37 ( * * *4) Each * * * violation of this section or of any
38 rule or regulation promulgated under this section is a separate
39 offense. A violation of this section is a Class III violation and
40 shall be punished as provided for in Section 49-7-101(1).
41 SECTION 2. No funds appropriated to the Mississippi
42 Department of Wildlife, Fisheries and Parks shall be expended on a
43 tagging program to report the harvesting of wildlife.

Similar legislation is pending in the House as HB1390 and states:

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.

Both bills require the MDWFP to start a mandatory harvest reporting system for deer and/or turkey.  Neither bill requires tagging.  Both bills require the system to be simple to use and outline permissible methods, but leave the method of data collection to the MDWFP.  Both bills prohibit funds appropriated to the MDWFP from being used on a tagging program.

According to a 2016-2017 survey from the MDWFP  released in April of 2017, over 57% of those responding favored a mandatory harvest reporting system.

harvest reporting

The multi question survey was sent to over 300,000 individuals and over 13,000 responses were received. I am told that Mississippi had a tagging requirement many moons ago.  The reasons for its demise are as varied as the reasons I currently hear from people that do not support harvest reporting.

For the last several years I kept hearing rumors that “this will be the year” for harvest reporting or tagging to get passed.  Once again, it will be interesting to see how this legislation turns out.  If the survey is accurate and roughly 57% of Mississippi hunters wish to have a mandatory reporting program, they had best speak up and let their senators and representatives know.  While the hunters that oppose reporting appear to be in the minority, they are a very vocal minority.

Its that time of year again….SuperBowl of Salsa

Patriots are favored by 5 points over the Eagles.  Who will win and who will lose?  Who cares!  It’s all about the snacks.  This super salsa never disappoints.  Mix it up the night before and it is even better.


Legislation of Interest to Mississippi Hunters – Part 1 – Wildlife Enclosures

Every year dozens of bills are introduced in the Mississippi Legislature that could impact hunters.  Most of those bills die in committee without a vote.  A few have survived the committee process this year that you may find of interest.  First up, wildlife enclosures.

The Committee Substitute for Senate Bill 2921 would require the owner of any wildlife enclosure to apply for and obtain a permit from the Mississippi Department of Wildlife Fisheries and Parks (MDWFP).  The permit holder would also have to comply with any testing required by the MDWFP.  Likewise, if chronic wasting disease (CWD) is diagnosed within five miles of the enclosure, the permit holder would be required to allow members of the MDWFP to enter the enclosure to harvest deer to obtain tissue samples.  Further, if those samples contained CWD, the MDWFP would be allowed to enter the enclosure to depopulate the whitetail deer within the enclosure.

This legislation simply expands on the authority of the MDWFP contained in Miss. Code 49-7-58 (c) which provides “The Commission on Wildlife, Fisheries and Parks and the Department of Wildlife, Fisheries and Parks shall have plenary authority in matters related to the importation of white-tailed deer, white-tailed deer in enclosures, and prevention of the introduction of chronic wasting disease into the native wildlife population.”

According to the Chronic Wasting Disease Alliance, CWD is a “contagious neurological disease affecting deer, elk and moose. It causes a characteristic spongy degeneration of the brains of infected animals resulting in emaciation, abnormal behavior, loss of bodily functions and death.”

The Chronic Wasting Disease Alliance has documented CWD in Arkansas, Colorado, Illinois, Iowa, Kansas, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, New Mexico, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas, Utah, Virginia, West Virginia, Wisconsin, Wyoming and the Canadian provinces of Alberta and Saskatchewan. 

This legislation follows previous legislation and administrative rules of the MDWFP which:

  1.   Prevent the importation of live cervids (including whitetail deer and elk) from other states (Miss Code 49-7-58); and
  2.   Impose regulations regarding importing cervid carcasses from areas where CWD has been found (40 Miss. Admin Code, Part 2, Rule 2.7).

Hunting has a multi-billion dollar impact on Mississippi’s economy.  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.


Defense Expert’s Attack on the Collateral Source Rule Falling Short

The collateral source rule can be summarized by stating “[c]ompensation or indemnity for the loss received by plaintiff from a collateral source, wholly independent of the wrongdoer, as from insurance, cannot be set up by the [defendant] in mitigation or reduction of damages….” Coker v. Five-Two Taxi Serv., 211 Miss. 820, 826, 52 So.2d 356, 357 (1951). “[A] tortfeasor cannot use the moneys of others (insurance companies, gratuitous gifts, etc.) to reduce the cost of its own wrongdoing.” Brandon HMA v. Bradshaw, 809 So. 2d 611, 618 (Miss. 2001).

The Mississippi Supreme Court has applied the collateral source rule to:

  • Payments by Medicare.  Wal-Mart Stores, Inc. v. Frierson, 818 So. 2d 1135 (Miss. 2002).
  • Payments by Medicaid.  Brandon HMA v. Bradshaw, 809 So. 2d 611 (Miss. 2001).
  • Amounts “written off” by a non related medical provider.  Purdon v. Locke, 807 So. 2d 373 (Miss. 2001)

However, the collateral source rule does not apply to amounts written off by the tortfeasor.  McGee v. River Region Medical Center, 59 So. 3d 575 (Miss. 2011).  A plaintiff can open the door to collateral source evidence by testifying to a lack of funds to pay for treatment. Geske v. Williamson, 945 So. 2d 429, 435 (Miss. Ct. App. 2006). Likewise “when a witness falsely swears that he or she paid, as opposed to incurred, medical expenses when, in fact, the medical expenses were paid by a third party” the court may allow a defendant to cross examine a plaintiff regarding collateral sources. Robinson Prop. Group, L.P. v. Mitchell, 7 So. 3d 240, 245 (Miss. 2009).

Despite the fact that Mississippi has uniformly followed the collateral source rule, defendants and their expert witnesses continue in their attempts to circumvent the rule.  The most recent attempt involves expert witness John Schneider, Ph.D.

Dr. Schneider claims to apply a health economics methodology to determine a weighted average of healthcare prices actually transacted in the market.  Sartin v. Wal-Mart Stores East, L.P., 1:14-cv-00003-HSO-RHW at page 17 (S.D. Miss. June 5, 2015).  In Sartin, use of Dr. Schneider’s “reasonable value” calculation reduced plaintiff’s life care plan from over $2.1 million in charges down to $590,588.

Although Dr. Schneider artfully avoids referencing insurance or any other collateral source in his Report, his methodology for determining the reasonable value of Plaintiff’s medical care would violate Mississippi’s collateral source rule.  Dr. Schneider’s methodology differentiates between expected charges for services as opposed to reasonable value or actual cost to a patient.

Sartin v. Wal-Mart Stores East, L.P., 1:14-cv-00003-HSO-RHW at page 23 (S.D. Miss. June 5, 2015).  The Court went on to state that “Dr. Schneider’s opinions on the reasonable value or medical care are therefore unreliable and irrelevant.”  Id.  

Judge Ozerden was again confronted with Dr. Schneider in the case of Williams v. Manitowoc Cranes, LLC, 2016 U.S. Dist. Lexis 3553, (S.D. Miss. January 12, 2016).  The result was the same.  “Dr. Schneider’s methodology as applied to this particular case represents a backdoor attempt to give Defendant the benefit of any type of write-off from the actual hospital charges…”  Id. at pages 11-12.  “Dr. Schneider seeks to confer the benefit of any payment or write-off from a third party on the Defendant instead of the Plaintiff.  The collateral source rule as it has been interpreted by the Mississippi Supreme Court prohibits this result.”  Id. a 12.

While Dr. Schneider and defendants disagree on principle, the public policy behind the collateral source rule is quite simple.  “If there is a windfall from which one is to benefit, the injured plaintiff and not the tortfeasor should receive that windfall.”  Chickaway v. United States, 2012 U.S. Dist. LEXIS 110602, *7, 2012 WL 3236518 (S.D. Miss. Aug. 7, 2012).


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

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.



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