Decisions – Miss.Ct. of App. – Sept. 9, 2014 – part 3

Ferguson v. Miss. Farm Bureau Casualty Ins. Co. – SOL/insurance claim –  In 2008, Ferguson was working on a farm owned by Robert Wilson.  He was roping calves with a four wheeler when it overturned and left him paralyzed for fifteen  months.  Wilson had  a general liability policy with MFBCI Co. It had $50,000 limit.   MFBCI Co. quickly offered the $50,000 and wrote a letter to Ferguson telling him he should get a waiver from the hospital waiving their lien.  In 2009, Ferguson claimed he went to Farm Bureau to pick up his check but that claims rep. James Corley explained to him that the hospital had assigned its rights to MedPay and MedPay was asserting a lien. In 2010, Ferguson filed bankruptcy listing $250,000 in medical bills.  He also listed the insurance policy as an asset.  A year later, Ferguson’s counsel wrote to MFBCI that the medical lien should apply only to the med pay under the policy ($10,000) and not the $50,000 and pay the $50,000 to Ferguson. At this point the insurer replied that the sol had run.  In 2012, Ferguson sued for breach of contract and bad faith. MFBCI defended based on the sol and the prohibition against direct actions against insurers where there is no privity of contract.   The trial court granted summary judgment for MFBCI finding that the claim was based on his injury suffered in 2008 and the three year sol had run.  ”  The Miss. Court of Appeals affirms. “Even if Ferguson’s complaint was not based on his injuries, but breach of contract, as Ferguson argues, there was no written or oral contract formed between Ferguson and Farm Bureau that could have been breached on or after October or November 2009.”

Nevels v. WalMart Transportation LLC –  rearend auto accident – Nevels sued WalMart after she rear-ended a WalMart tractor trailer.   In 2012, Claude Smith was driving a WalMart rig west on I-20 through Vicksburg. It was rainy and there were multiple accidents ahead.  Over a hill, traffif had come to a complete stop.  Smith crested the hill and immediately applied his brakes.  Nevels was a passenger in a car behind Smith.  Her driver could not stop in time and rearended the WalMart rig.  Nevels sued WalMart and Smith.  The trial court granted summary judgment.  Nevels appeals arguing that Smith should have used his CB radio to learn of the traffic ahead.  The Miss. Court of Appeals doesn’t buy it and affirms.  

Logan v. Miss. Dept. of Transportation –   highway  maintenance/MTCA –  The Logans were traveling along Highway 49 in Tallahatchie County when, while passing over a bridge,  their car got caught on a large metal plate bolted onto the roadway causing a one-car accident.  Plates had been put onto the surface of the bridge during repairs to replace rotten wood pylons.  The Logans sued MDOT.  The trial court granted summary judgment for MDOT finding that maintenance of bridges is a discretionary function.   On appeal, the Court of Appeals notes that prior to 2012, the courts had consistently held that road maintenance was a discretionary function.   But in Miss. Transp. Commission v. Montgomery, the Miss. S.Ct held that maintenance of state highways is not discretionary under MCA sect. 65-1-65. In this case, MDOT could not prove that the repair was performed properly.  The Court reverses the trial court’s grant of summary judgment on the negligent repair claim but upholds the lower court of a failure to warn claim since there was no evidence that MDOT knew about the dangerous condition.

Ramer v. State –  burglary/expert v. lay testimony – Ramer was convicted of burglarizing Greg Isom’s tire shop in Ripley.  He was sentenced to seven years without parole as an habitual.  On appeal Ramer claims that the court erred when it allowed the shop owner, his employee and Ramer’s employee testified that the distinctive pattern on Ramer’s shoes looked the same as a footprint found outside the tire shop.  The court finds this was not error. “There was a distinctive and identifiable large four-circle pattern on the bottom of Ramer’s shoes. The circuit court could have reasonably concluded that Isom was able to recognize the distinctive pattern without having any scientific, technical, or specialized knowledge.”  Ramer also complains about the sufficiency and the weight  of the evidence.  The court affirms the conviction and sentence. 

 

Gladney v. Miss. Dept of Employment Security –  unemployment benefits –    Gladney was employed as a full-time teacher’s assistant with the Aberdeen School District. In May 2012, the school principal told all the teacher’s assistants she needed to lay off two people and  asked for volunteers. Gladney was the first to volunteer.  The principal told
Gladney and the second volunteer to write a letter by lunchtime stating they would not return the following year due to lack of funds in the school district. The following day, the principal announced that because “so much drama” had ensued after she asked for volunteers, she would choose the two employees to lay off. Gladney was not one of the two employees
chosen, but Gladney was not asked or told to withdraw her letter.  Gladney applied for unemployment and the school insisted she had quit without a good reason.  Teh Commission denied benefits. The Miss. Court of Appeals reverses.

 We find that once Gladney’s letter was accepted, it was too late for the principal to change her mind without informing Gladney that her letter would thereafter be considered a voluntarily departure if it were not withdrawn. Gladney remained under the impression she was part of the RIF. This understanding was confirmed by the school’s payroll clerk after Gladney filed for unemployment benefits. Gladney’s last day of work was May 25, 2012, and she filed for unemployment benefits on June 8, 2012. On June 13, 2012, the payroll clerk responded to a MDES “Request for Information” form, in which the clerk stated the reason for Gladney’s separation was a “RIF”/“lack of work.” The ALJ recognized this in her findings, which state: “The employer’s first response to the request for separation information was that the reason for the job separation was a reduction in force due to a lack of funds. Later the employer asserted that the claimant voluntarily resigned.” Thus, even based on the school’s own understanding at the time Gladney filed for unemployment benefits, Gladney was part of the RIF. It was not until the claim was before the claims examiner that the school asserted Gladney voluntarily quit. The MDES’s finding that Gladney was not part of the RIF is not supported by the evidence.

 

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