Decisions – Miss.S.Ct. – Nov. 20, 2014

Former Board of Trustees of the Mississippi Comp. Choice Self Ins. Fund v. Mississippi Workers Comp. Self Insurance Fundtort claims act – In Jan. 2009, the Bd of Trustees of Miss.Comp. Choice voluntarily surrendered their Certificate of Authority as a group self insurer to the Miss.Workers Comp. Comm. A month later the MWCC declared Comp Choice a self insurer in default and the Miss,Workers Comp. Self Ins. Fund was given responsibility for administering the fund. Comp Choice filed suit in Hinds County against MWC Self Ins. Fund for negligence and bad faith in its administration of the Comp Choice Fund (wasting the Fund’s money, paying AmFed too much to handle existing claims, wrongfully withholding $300,000 in premium deposits belonging to members of the Fund). The complaint was amended and transferred to Madison County. MWC Self Ins. moved to dismiss arguing that it is immune under the Tort Claims Act. The Circuit Court dismissed it on these grounds bit allowed Comp Choice an opportunity to amend its complaint, which it did. But Comp Choice also filed this interlocutory appeal which the Justices granted. The Court reverses on the grounds that “Whether GGA is an instrumentality of the Commission is a fact-driven determination, It cannot be made until all facts are developed and considered, as shown by our caselaw.” “In the case sub judice, facts were and are still undeveloped, precluding the trial court and this Court from determining whether Plaintiff’s claims, as alleged in its complaint, can be pursued only under the MTCA, as ordered by the trial court, and Plaintiff may not pursue a cause of action as contemplated by Section 71-3-151, et seq, or otherwise. Absent factual development, no court at this stage of the proceedings could accurately discern whether GGA
is an instrumentality of the Commission, vel non, as argued by GGA.”

O.R. Garretson v. MDOT tort claims act – “The Mississippi Transportation Commission (“MTC”) procured some land from the Garretsons via eminent domain to construct a bypass in Greene County. The Garretsons later filed a complaint against the Mississippi Department of Transportation (“MDOT”), alleging that the bypass construction had caused silt to flood onto their remaining land, damaging their timber. MDOT filed a motion for summary judgment and argued that it was immune. We agree that MDOT is immune from liability under under Mississippi Code Section 11-46-9(1), subsections (d) (discretionary-function
immunity) and (p) (design immunity). and affirm.”

Southside d/b/a Wines, Etc. v. Miss. Dep’t of Revenue appeal of tax assessment – Wines, Etc. was assessed taxes in June 2011. The taxpayers appealed to the Board of Review, where the assessments were affirmed. The taxpayers then appealed to the Board of Tax Appeals which upheld the additional assessments. After exhausting their administrative remedies, the taxpayers appealed to the Lowndes County Chancery Court which held t hat it was without jurisdiction because the taxpayers did not pay their taxes under protest before filing their appeal or post a surety bond with their appeal. The Miss.S.Ct. affirms.

Richard Palermo v. Lifelink Foundation –  human tissue graft – “Richard Palermo alleged that he was injured by infected tissue surgically placed into his knee. He sued LifeLink Foundation, Inc., under, inter alia, the Mississippi Products Liability Act (“MPLA”), Mississippi Code Section 11-1-63. The trial court and Court of Appeals both found that Mississippi Code Section 41-41-1, which defines the procurement, processing, storage, distribution, and use of human tissue as a “service,” exempted LifeLink from liability under the MPLA. While we clarify the analysis surrounding this issue, we ultimately find no error, and thus affirm the trial court and the Court of Appeals.

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