Decisions – Miss.S.Ct. Oct. 23, 2014

William Gray v. Arch Specialty Ins. Co. –  insurance coverage –  Gray was in a car wreck in April 2006.  Paramedic from Emergystat and Southland responded.  Gray died and his heirs filed suit against Emergystat and Southland alleging negligence.  Two days before taking a default judgment. the Frays notified the defendants’ insurer, Arch.  Arch investigated and informed the insureds there was no coverage.  In December 2009, the Grays obtained a default judgment.   Thereafter they filed a writ of garnishment against Arch. The trial court granted summary judgment for Arch finding that the policies did not provide coverage for the Grays’ claims.   While there was a professional liability policy, it provided coverage for claims filed between November 9, 2002 and December 1, 2007. The Grays claim that they are entitled to payment under the general liability policy.  While that policy excludes “health care professional services from coverage”, the Grays argue that this does not include negligent hiring, negligent training and failure to implement appropriate protocols.  “Arch maintains that a plaintiff’s legal theory does not determine the applicability of exclusions; if an exclusion applies, then it applies to all theories of liability. We agree. The Court has held that, if the injury would not have resulted “but for” the excluded service, then the exclusion applies to all theories of liability.”

Mitchell Scruggs, et al. v. Greg Bost and Nowell Ins. Agency – patents/ insurance –  Monsanto sued Mitchell Scruggs and his various agricultural entities for patent infringement (replanting roundup seeds like the case on The Good Wife)  in federal court.   Scruggs made a demand on his commercial general  liability insurer, Farmland Mutual Insurance Company which denied coverage based on Scruggs’s alleged intentional conduct. Scruggs then sued Farmland, Greg Bost (the insurance agent), and Nowell Insurance Agency in state court alleging that  Bost and Nowell negligently failed to advise him that he needed to purchase patent infringement insurance.  The trial court granted summary judgment.  “Because we find that Scruggs’s conduct was uninsurable as a matter of law, we affirm.”   “After careful consideration, we find that Scruggs’s actions were both intentional and illegal, and therefore uninsurable as a matter of law.”

Dorothy Glenn v. Andrew Powell – – election contest – Following the May 7, 2013, Democratic primary for the Ward 5 seat on the Greenwood City Council, the Greenwood Municipal Democratic Executive Committee certified Dorothy Ann Glenn as the winner and thus the Democratic nominee for the Ward 5 seat on the City Council. The runner-up, Andrew Powell, challenged the results  contending that Glenn was not a resident of Ward 5 at the time of the election.  The Circuit Court of Leflore County, Special Election Tribunal, found that Glenn was not a resident of Ward 5, held that she was not qualified to hold the position of Greenwood City Council Member for Ward 5, set aside the results of the primary election of May 7, 2013, and ordered a special primary runoff election without Glenn’s name on the ballot.  The Miss.S.Ct. affirms but reverses the judgment of the trial court and render a judgment that the governor shall call a special primary runoff election for the office of Greenwood City Council Member for Ward 5 to take place between the remaining qualified candidates, Andrew Powell and Norman Smith.

Entergy Mississippi v. Mary Bethanne Acey –  bystander claims for emotional distress – One afternoon in Tunica County, Mississippi,  a child  was electrocuted while playing on the farmland of David and Sherry Melton. One of the Melton’s workers had parked a cotton picker under an allegedly sagging power line, which was owned by Entergy Mississippi, Inc. Ultimately, the child  climbed onto the cotton picker, touched the power line, and was electrocuted suffering severe injuries.  The parents (the Aceys)  settled with Entergy, David and Sherry Melton, Melton Farms, Mary Mac, Inc., and Norfleet Investments, LP (“Defendants”) all the claims brought. Defendants settled all claims on behalf of the child. This case involves the mother’s bystander claims for emotional distress.

At the time of the accident, A.A.’s mother, Mary Bethanne Acey, was en route to Moon Lake, in Coahoma County, Mississippi, with her son and Charles Graves. A Tunica County 911 dispatcher called Graves to inform him of the accident. Graves immediately turned the car around to proceed to the Meltons’ home. Acey then spoke with the dispatcher, who explained the gravity of the situation to Acey and informed her that A.A. had been “shocked.” Acey arrived at the accident scene and saw her daughter in Berry’s arms. Acey’s affidavit explains that she observed smoke coming from her daughter’s skin, skin flaking and turning gray, fingers missing and bones exposed, and she could smell the odor of burning flesh.

Entergy moved for summary judgment which the trial court denied..  The Miss. S. Ct. grants an interloc. and reverses.  “Here, the record evidence undisputably shows that Acey did not witness the accident.”

The Entex factors are mandatory requirements that bystander claims for emotional distress must satisfy to be accepted as valid under Mississippi law. Acey is barred from recovery because she was not near or at the scene of the accident, nor did she experience a sensory or contemporaneous observation of the accident. Therefore, summary judgment should be entered in favor of Entergy, and the judgment of the Circuit Court of Tunica County is reversed and remanded for proceedings consistent with this opinion.

Garrett Prestenbach v. J Gerald Collins –  options contract – this case is on cert from the Court of Appeals.  In Sept. 2011, Collins granted Prestenbach a one year option to purchase 150 acres of Collins’ farm for $500,000. “The option contract included the following details: (1) a recital of $100 consideration; (2) a township-and-range description of the property; (3) a reference to the buyer’s intent to  obtain a USDA loan; (4) the total purchase price; and (5) a recital that the option was irrevocable for the first three months and, after three months, the option could be revoked by giving ten days’ written notice. The parties also agreed that Collins would allow the USDA to inspect the property before closing.”   About a month later,  another buyer offered to buy the property immediately.  Collins tried to get Prestenbach to give up his option.   On Dec. 8, 2011, Collins sent Prestenbach a letter attempting to terminate the option.   By this time, the USDA loan was nearly complete but when Prestenbach tried to set a closing date, Collins refused and filed a quiet title action.  Prestenbach filed a counterclaim for specific performance.  The chancellor granted summary judgment for Collins finding that at the time he exercised his option, he could not pay the $500,000 purchase proce.  The Court of Appeals affirmed.  The Miss.S.Ct. reverses and orders specific performance.

In this case, Collins and Prestenbach created a valid and enforceable option to purchase real property and Prestenbach timely exercised this option. When Prestenbach exercised his option to purchase, the option contract became an enforceable contract to sell and Prestenbach had the right to specifically enforce that contract. In the absence of a definite closing date in the option contract, it must be presumed that the parties intended that the sale would take place within a reasonable time after Prestenbach exercised his option to purchase. And Prestenbach was required to present himself at the closing with the purchase price as specified in the contract.
Absent language in the contract to the contrary, an option holder has no obligation or duty to show an ability to pay the entire sales price before the closing.

Crowell v. Anne Butts and Magnolia Wrecker and Towing Service landlord self help/replevin  – Crowell rented a metal building on an acre of land owned by Fani Atkinson to use as an auto repair shop.   When he fell behind on the rent by $2,250, on August 18, 2010, Atkinson issued a notice of default telling him to remove his thinks before September 18, 2010 or his stuff would be towed.   Crowell claims he came to Atkinson on Sept. 17 with $2800 in cash but she declined to take it (Atkinson denied this). Atkinson contacted Anne Butts of Magnolia Wrecker to two everything off the property which she did on Sept. 19. Crowell claims there were 37 vehicles on the property.   On Oct. 12, 2010, Crowell filed a replevin action against Atkinson and Butts. He then filed a complaint to enforce right of possession alleging the Atkinson wrongfully entered the property and removed the vehicles.   At the replevin trial, Atkinson claimed her reentry was lawful because Crowell was behind on his rent.  Butts claimed that she rightfully possessed the vehicles because she was owed a towing and storage fees.  When Crowell attempted to testify about Atkinson’s entry on his property, the defense objected and the court ruled that Atkinson had the right to reenter the property so the line of questioning was irrelevant.   The trial court directed a verdict for Atkinson and Butts.  On appeal, the circuit court affirmed.  And on appeal from circuit, the Court fo APpeals found that Crowell had presented sufficient evidence to maintain his replevin action and reversed and remanded for a a trial de novo between Crowell and Butts.   The Court also found that Atkinson’s use of self help was unlawful and reversed and rendered on that issue.

Butts and Atkinson filed for cert and the  Miss.S.Ct. granted Atkinson’s.  It ends up affirming the Court of Appeals on the replevin but finds that there was no claim in this case regarding Atkinson’s use of self-help so no judgment should have been rendered in this issue.

EDW Investments v. Michelle Barnett, Spectrum Wireless, et al. –  fraudulent transfers – EDW obtained a judgment against Techtronics in 2007.  In 2011, EDW sued Michelle Barnett, the wife of Techtronics president, Spetrum Wireless and some other companies claiming that they were all alter egos formed solely to conceal assets of Techtronics. Defendants filed a motion to dismiss based on the statute of limitations and that the common law fraud was not sufficiently pled.  The trial court granted the motion.  The Miss.S.Ct. affirms.

Columbus Cheer Company v. City of Columbus et al. –  dissolved corporation cannot sue –  Columbus Cheer Co. entered into a rental contract to use school facilities.   Thereafter Cheer was informed that the school district would not honor the contract.  Cheer filed a complaint against the school district, the mayor and others.  The defendants sought to dismiss the case on the grounds  that Cheer had been administratively dissolved.  The trial court granted summary judgment.  The Miss. S.Ct. affirms finding that a dissolved corporation may not pursue a legal action (at least one that is not related to winding up the affairs of the corporation)  and the shareholders cannot pursue the same action in its name.

Thus Blogged Anderson’s take on today’s list.

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