Decisions – Miss.S.Ct. – Sept. 10, 2015

Mississippi Department of Medicaid v. Crossgates River Oaks. – appeal of decision by Medicaid regarding hospital reimbursement  – In Oct. of 2010, Medicaid announced that it was retroactively adjusting downward the hospitals’ outpatient rates for fiscal year 2001.  Some hospitals requested and were granted hearings in which they argued that the downward adjustment (totaling $86,420.49) was unfair and that rates should be adjusted upward (by a total of $2,164,292.58). The Hospitals appealed to the Hinds County Chancery Court.  Medicaid argued that “[b]ecause there is no statutory method for appealing decisions made by the [Director of Medicaid] after hearing in a provider administrative appeal, the issue is whether the Chancery Court has jurisdiction to review the decision of the DOM, or whether the providers must utilize the writ of certiorari procedure in Circuit Court pursuant to Miss. Code Ann. Sections 11-51-93 and 11-51-95.”    In other situations where there is no statutory mechanism for appeal, the Miss.S.Ct. has held that the proper procedure was via writ of cert. in the Circuit Court because those seeking review  were provided a quasi judicial proceeding by the agency itself. The hospitals argue  that Medicaid did not raise this jurisdictional issue until a year after Crossgates filed its initial complaint in Chancery Court. Crossgates’ brief at p. 5.  An, indeed, that Medicaid has participated in at least 12 cases where its decisions were appealed to the Hinds County Chancery Court.  The Mississippi Supreme Court holds that the chancery court has jurisdiction to hear the appeal but the hospitals could also have sought review via a writ of cert. to the circuit court. .

We find that, because DOM acted as a inferior tribunal to the circuit court and because these cases presented questions of law, the hospitals could have sought judicial review by petitioning for writs of certiorari. But certiorari is not an exclusive remedy; the statute allows a party to petition for a writ of certiorari even if other remedies at law exist. Miss. Code Ann. § 11-51-95. And under our common law, relief was available to the hospitals in chancery court if the certiorari procedure did not provide a full, plain, complete, and adequate remedy at law.

Terry Logan and Beverly Logan v. MDOT –  highway  maintenance/MTCA/admisison by employee of party-opponent –  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 COA  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.  The Miss.S.Ct. reverses and writes to correct “the Court of Appeals’ treatment of an affidavit that contained an alleged admission of a party opponent under Mississippi Rule of Evidence 801(d)(2).”

When MDOT moved for summary judgment, the Logans produced an affidavit by Mauri Logan that she spoke with two MDOT  employees  at the scene. One of them told her that MDOT had received a phone call earlier in the day of March 12, 2011, regarding the dangerous metal plates sticking up on the bridge “The MDOT employee advised me to take photographs of the dangerous metal plates. I did. He also recommended that I take pictures of metal plates that were on the bridge but not dislodged. I did. I took the photos attached to this Affidavit as cumulative Exhibit “A” on March 12, 2011. . . . The second employee from MDOT confirmed that MDOT received a telephone call early in the day regarding the dangerous metal plates on the highway.”   The COA held that the affidavit was inadmissible because  “there is nothing to demonstrate that the workers, who allegedly spoke to Mauri [Logan], were authorized to make the statement concerning a matter within the scope of their employment with MDOT.”  The Miss.S.Ct  holds that this was wrong.

We agree with the Logans that the Court of Appeals erred by treating Mauri Logan’s affidavit as inadmissible hearsay. Mississippi Rule of Evidence 801(d)(2)(D) provides that a statement is not hearsay if the statement is offered against a party and is “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship . . . . ” The Logans correctly point out that Rule 801(d)(2) does not require the employees of the defendant to be authorized to make the alleged statements for them to be admissible.

* * * *

The trial court and Court of Appeals erred in concluding that no disputed fact exists regarding the Logan’s failure-to-warn claim. We reverse the judgment and remand the case for the trial court to perform a more detailed summary-judgment immunity analysis of the Logan’s failure-to-warn claim consistent with this opinion.

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