Decisions -Miss.S.Ct. – Dec. 10, 2015

Safeway Insurance Company v. Tiffany Dukes –  automobile insurance –   another case refusing to extend Lyons to cases wherein the insured failed to list her boyfriend as a regular driver on the policy.  The boyfriend was driving the car and got into an accident.

First, after Lyons handed down, the Legislature amended the statute at issue, effective July 1, 2015. Section 63-15-3(j) now provides that “[l]iability insurance required under this paragraph (j) may contain exclusions and limitations on coverage as long as the exclusions 5 and limitations language or form has been filed with and approved by the Commissioner of Insurance.” Miss. Code Ann. § 63-15-3(j) (Supp. 2015). Thus, Lyons has been overruled by statute.

Second, we very recently and thoroughly addressed the same issue in our opinion in Katrice Jones-Smith v. Safeway Insurance Company, 174 So. 3d 240 (Miss. 2015). In the majority, Justice Dickinson wrote that, in Lyons, the Court held that “the named-driver exclusion violated Mississippi’s statutorily imposed minimum-liability-insurance law” because Section 63-15-4(2)(a) required the insurance to issue an insurance card as proof that the policy provided the vehicle with the statutory minimum coverage. Id. at 242 (¶6).

Chris Spencer Different v. Statesexual battery –  Different was convicted of gratification of lust and sexual battery of his former  stepdaughter.  The girl, who was fourteen at the time of the alleged abuse, testified and gave details of the abuse.  On appeal Different argues sufficiency of the evidence.  The Court affirms.

Demario Ferguson v. UMMC –  sanction of dismissal – The Shelbys sued UMMC, AMR and University Physicians, PLLC after the death of their son  Terrance Shelby. Shelby was taken by ambulance to UMMC after complaining of  having no feeling in his legs. After waiting for hours at UMMC’s ER without getting any treatment, they took Terrance to Baptist Medical Center’s ER where he got immediate medical treatment but died two days later from kidney failure. The trial court dismissed the Shelbys as plaintiffs as a sanction for lying during discovery but allowed their son Demario Ferguson to be substituted.  When it was discovered that he also  lied, the court dismissed the case.  The Shelbys had testified they had been married for 28 years.  They claimed the license was lost in a fire.  It turns out that they never married.  The father admitted to one arrest of conviction but his record showed numerous arrests and convictions.  He had also used multiple aliases.  The mother admitted to an arrest for carrying a concealed weapon but she had also pleaded guilty to two forgery charges.  Lisa also lied about having another child, Demario Ferguson.   AMR alleged she lied to avoid sharing any proceeds from the wrongful death suit.    The Shelbys argued that they considered themselves married and that they forgot their criminal records.  As for Demario, his mother claimed that custody of Demario was given to her mother after he was born and that Demario was raised thinking his mother was his grandmother and it was only recently he found out otherwise.   They presented an affidavit signed by Demario to this effect.  AFter the Shelbys were replaced by Demario, Demario’s deposition was taken and he testified that he had always known that Lisa Shelby  (his bio mom) was his mother.  He admitted that the signature on t he affidavit was his but denied that the contents were true.   The judge then tossed the whole case.  The Miss. S. Ct. affirms.  King and Kitchens dissent stating that the Ferguson’s alleged untruths were not cut from the same cloth as the lies told by the Shelbys and the should have considered lesser sanctions before dismissing. (I started to wonder how good a med mal claim the Shelbys had blown so I looked at the brief.  The Appellant’s principal brief is three pages.  Needless to say, there is nothing in it about the merits of the med mal case).

Gerald Scafidi v. Jo Ann S. Hille –  partition –   The parties are siblings who own  Wheel-Inn Trailer Park, Scafidi’s Wheel-Inn Restaurant, Inc., and Wheel-Inn Park & Campgrounds, Inc.  Jo Ann filed suit seeking to partition the property and also brought a derivative suit on behalf of the corporation running the restaurant and trailer park. Gerald was dissatisfied with the way the Court ruled and appealed.  He argues that Jo Ann did not have standing to bring the derivative claims; that the court ordered relief outside that allowed by the dissolution statutes, etc. The Supreme Court affirms.

William Greenwood d/b/a Antique Wood Company of Mississippi v. MESA Underwriters Specialty Insurance Company et al.  –  venue – Greenwood buys the salvage rights to old buildings and salvages them for reusable lumbar.  He started salvaging a building in Vicksburg and the adjacent property owners sued him claiming he was injuring their properties.  The suit was filed in Warren County. Greenwood’s insurers denied coverage and denied a defense.  A jury found against Greenwood in the lawsuit. Greenwood then filed suit against his insurers in Hinds County alleging bad faith denial of coverage.  The Defendants moved to transfer venue to either Grenada County (where Central Insurer of Grenada is located) or Rankin where Dixie Specialty is located.  Greenwood filed an interlocutory appeal arguing that another permissible venue was Warren County,  The Miss. S.Ct. granted the interloc.  The Miss.S.Ct reverses holding that the proper venue is Warren County.

Samuel Nuckles v. State venue – Nuckles was charged with 13 counts of  video-voyeurism.  The state claimed he had made 13 videotapes of women in  his bathroom.   The parties agreed to a bench trial.   “The stipulation omitted any reference to where ten of the thirteen counts took place. Because the State failed to prove venue as to those ten counts, we must reverse them.”

Tamara Glenn v. Dr. James Peoplesmed mal –   Mattie Hazel Aldridge was treated by Dr. Peoples at St. Dominic Hospital for recurrent deep-vein thrombosis.   Dr. Peoples placed Aldridge on anticoagulation therapy, coumadin.  Two months later she suffered from a brain bleed and died.  Her family sued. The court granted summary judgment for the defendants and the family appealed.  The Miss.S.Ct. affirms.

Even if we were to assume that the ingestion of Coumadin alone caused Aldridge’s hemorrhagic stroke—an assumption it may not at all be safe to make—still, Glenn presented no evidence that the Coumadin Aldridge was taking at the time of her stroke was in fact prescribed by Dr. Peoples. The “duration of action” for Coumadin—according to the general knowledge of the doctors and the manufacturer’s informational packet accompanying the drug—ranges from two to five days. Dr. Peoples discharged Aldridge from his care on April 30, 2010, and accordingly, any Coumadin that he prescribed would have run its course by May 6, 2010, at the latest. Aldridge suffered her stroke nearly two months later, on June 25, 2014. Thus, her stroke cannot be attributed to the Coumadin prescribed by Dr. Peoples.

Elizabeth Strickland v. Estate of Steven Broome –   alimony claims against an estate – The Broomes were divorced in 2002 after having two children. Steve died in 2013 and left his entire estate to his surviving wife.  Elizabeth filed claim against the Broome Estate for $400,000 plus interest, which she claimed was the amount of the life insurance policy Steve was supposed to have, with her as the named beneficiary.  She also filed a claim for their adult sons, claiming $161,602 for back child support, half of the boys’ health insurance premiums, and half of college tuition for Luke to attend Louisiana State University and Jesse to attend Mississippi State University.  The chancellor dismissed the claims. The Miss.S.Ct reverses.

The Court holds that the chancellor’s order is ambiguous, as it does not specifically address whether the claims complied with Section 91-7-149, which was the only issue before the chancellor at the time. Furthermore, in Raspilair v. Estate of Raspilair, 583 So. 2d 970, 971-2 (Miss. 1991), the Court found that trial court erred in dismissing Ruth Raspilair’s claim for life insurance proceeds and back alimony against her ex-husband’s estate based on Ruth’s presentation of their divorce decree containing a life insurance requirement. “We find that Ruth made and proved a valid claim against the estate for $30,600, which the chancellor should have allowed, as authorized under Miss[issippi] Code Ann[otated section] 91-7-165.” Therefore, Elizabeth’s presentation of the divorce decree, the agreement, and other various documents was sufficient to satisfy the requirements of Section 91-7-149.

To the extent the chancellor dismissed Elizabeth’s claims on the merits, such action was improper, as the merits were not before the chancellor to decide.

Graham Warwick v. State –  DUI – Warwick was convicted for driving under the influence of marijuana.  He argues sufficiency of the evidence.  The Miss.S.Ct. affirms.

James Hobson v. Chase Home Financing –   remedy of buyer of foreclosed property that is timely redeemed –  James D. Hobson purchased  property at a foreclosure sale.   The receipt warned that  the sale was subject to withdrawal in the event of a timely reinstatement by the obligor on the deed of trust.  The mortgagee reinstated the loan and Hobson’s check was returned.   Hobson sued claiming that  he was entitled to receive the difference in the amount he had bid for the property (around $60,000)  and the appraised value of the property (approx. $156,000). The court  initially granted summary judgment to Hobson  but the Miss.S.Ct.  reversed and remanded for a determination of whether Quimby validly had reinstated her loan prior to the foreclosure sale. Chase Home Finance, L.L.C. v. Hobson, 81 So. 3d 1097 (Miss. 2012). On remand, the County Court  granted summary judgment to Chase and Priority.  The Miss.S.Ct. affirms.

 

 

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