Decisions – Miss.S.Ct. – Jan. 15, 2015

Richard Bowlin v. State –  Lindsey brief –  Bowlin was convicted of three counts of sale or transfer of a controlled  substance (hydromorphone (Dilaudid), meperidine (Demerol), and oxycodone) in a controlled buy that was set up by his own daughter.  He was  sentenced as an habitual offender to three concurrent thirty-year sentences without the possibility of parole and fined $1 million for each count. Bowlin’s appellate counsel filed a brief pursuant to Lindsey v. State, 939 So. 2d 743 (Miss. 2005), that he has found no issues to raise.  Bowlin filed a brief alleging various ineffective assistance claims.  “We also have scoured the record, and, finding no meritorious arguments to be made for Bowlin on appeal, we affirm his convictions and sentences. Bowlin’s ineffective assistance-of-counsel claims are better deferred for an application for post-conviction relief, so we dismiss those points of error without prejudice, to be raised in a petition for postconviction relief, should Bowlin choose to file such within the time allowed.”

Bertram Hill et al v. CIty of Horn Lake –  tort claims act – Betram Hill was injured and David Mooneyham was killed while working on a sewer project for the City of Horn Lake.  Both were employees of  Phillips Construction Company which was hired by the City  to do the work.  They were near the bottom of a 17 foot deep trench when the walls of the trench collapsed.  Hill and the relatives of Mooneyham sued the City for Phillips’s negligence under respondeat superior and under a theory that the City was negligent to hire Phillips. For one thing, Phillips did not have general liability insurance and MCA Sect. 31-5-51(7) which requires any person entering into a formal contract for over $25,000 with the city to show proof of general liability ins. (The work ended up being billed at just under $10,000).  The circuit court granted the City’s motion for summary judgment on all issues, holding that Plaintiffs had not established the City had more than a supervisory role over the project, that the City’s maintenance of a sewer system is a discretionary function, and that the burden under Mississippi Code Section 31-5-51(7) is placed on the contractor, not the City.”

On appeal the Court asked for additional briefing on the following: “1)whether the contract, if any, between Horn Lake and Phillips was void and unenforceable as a matter of public policy because it was formed in violation of Mississippi Code Section 31-7-13; (2) whether the existence of an enforceable contract is a prerequisite for the existence of independent-contractor status for the purposes of determining whether Horn Lake is vicariously liable for the negligence, if any, of Phillips; and (3) whether the Court’s opinion in Little v. Mississippi Department of Transportation, 129 So. 3d 132 (Miss. 2013), has any
effect on whether Horn Lake enjoyed discretionary immunity.”  The Court ends up affirming the trial court’s grant of summary judgment. “Plaintiffs have not produced evidence sufficient to create an issue of material fact as to whether the City is vicariously liable for Phillips.”   As for the negligent hiring based on the fact that Phillips lacked general liability insurance,  the project ended up being for less than the $25,000 specified in the statute.  Moreover, the statute places the burden on the contractor to furnish the insurance  and not the City.

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