Decisions – MSSC – 3/15/18

Stacy Triplett v. Southern Hens, Inc. –  claim splitting –  Triplett worked at Southern Hens. In September 2012, she witnessed a coworker’s gruesome death when he slipped into a grinder while he was on a ladder cleaning. Triplett was awarded workers comp. for her mental anguish.   When she had trouble collecting her award she filed three lawsuits against Southern Hens and its insurance carrier.  The first was filed in Jones County in April 2014 alleging bad faith and gross negligence relating to their alleged failure to pay her workers’ compensation benefits in a timely manner. The case was removed to federal court where the court dismissed Triplett’s failure-to-pay lawsuit against Southern Hens.  In June  2015, Triplett filed a second suit against Southern Hens only for bad faith and gross negligence in failing to report her claim to Liberty Mutual in a timely manner.   Triplett failed to serve Southern Hens with process within 120 days.  In December  2015,  Triplett filed a third lawsuit against Southern Hens for bad faith failure to report.  Southern Hens moved to dismiss Triplett III.  The trial court asked for  briefing on the issue of whether Triplett II tolled the statute of limitations for purposes of Triplett III. Thereafter the circuit court dismissed Triplett II and then Triplett III for violating the rule prohibiting claim-splitting.   Triplett appealed the circuit court’s dismissal of Triplett III.  The MSSC affirms finding that “Triplett—by filing Triplett III while Triplett II was still pending—violated the prohibition against duplicative actions.”

Sedric Sutton  v. State of Mississippi –   search warrant inadequately described items to be seized – In July  2014, a confidential informant  told law-enforcement officers in Washington County that they could find stolen items at a house in Greenville. Officers obtained a search warrant for the house for “marijuana, cocaine, methamphetamine, stolen items and or any other illegal controlled substances as well as any paraphernalia.”  They did not have probable cause for drugs.   When they got there, they detained Sutton. A search turned up pills   $4,995 in cash, a handgun, and two digital scales. Sutton was charged with misdemeanor possession of a controlled substance and felon in possession.  At trial, Sutton moved to suppress the items seized as a result of the warrant since they were not described in the warrant.  He lost the motion at trial. The MSSCT reverses. It finds that the underlying facts on which the search warrant was based was not unreliable however the search warrant did not adequately describe the things to be seized.

Forrest Thomas, III v. Mississippi Department of Corrections and Gloria Gibbs, Director of Records –  meritorious earned time/order of sentences  – In prison, Thomas was denied trusty time credit and meritorious earned time credit based on the fact that he was classified as  a sex offender pursuant to MCA Sect.  45-33-23(h). In 2007, Thomas pleaded guilty to manslaughter for the death of Kimberly Norton and pleaded guilty to kidnapping their two children.  He was sentenced to serve 20 years for manslaughter and then 15 years for kidnapping to be served consecutively. Thomas challenged the denial of earned time administratively and lost.  He now appeals to the MSSC which affirms on the denial of trusty and earned time but reverses on the order on which MDOC is having Thomas serve his sentence.

Mississippi Code Section 99-19-21(1) (Rev. 2015) provides that if a person is
sentenced for two or more convictions, “the imprisonment on the second, or each subsequent conviction shall, in the discretion of the court, commence either at the termination of the imprisonment for the preceding conviction or run concurrently with the preceding conviction.” While the Department is vested with the authority and discretion for the “management and control of the correctional system” pursuant to Mississippi Code Section 47-5-23, the Department’s authority and discretion cannot usurp a clear directive from the court via its sentencing orders.

Therefore, the Department erroneously is having Thomas serve his kidnapping
sentence before his manslaughter sentence, contrary to the circuit court’s sentencing order. We remand for the circuit court to order the Department to correct the error, which has a direct impact on the case sub judice.

Singing River Health System, Jennifer Thomas-Taylor, M.D., Alva Britt, R.N., Benjamin W. Hudson M.D., and Emergency Room Group, LTD. v. Teresa Vermilyea and Julie Vermilyea Kasby as the Wrongful Death Beneficiaries of Randy Vermilyea and Julie Vermilyea Kasby, Individuallymedical providers’ liability for patient suicide – Randy Vermilyea was admitted to the Singing River Hospital following a suicide attempt wherein officers talked him off of a bridge.  He was released a few hours later, called his daughter to pick him up,  and  committed suicide minutes later by jumping off of a bridge in Moss Point.  His wife sued for negligence and his daughter, who witnessed her father’s suicide, asserted a claim for infliction of emotional distress. The defendants moved to dismiss for failure to state a claim. When the trial court denied the motion, they sought and were granted an interlocutory appeal.  The MSSC analyzes the cases dealing with a medical provider’s liability for a patient’s suicide and finds that the claims asserted by the Vermilyea’s are sufficient to survive a motion to dismiss.

Just as in Lyle [v Johnson], in which the decedent escaped from the facility and then killed herself, Vermilyea’s complaint is that the decedent was in the facility’s custody and control, but the defendants negligently discharged him from the facility, proximately causing his immediate suicide. Here, suicide was the very thing that his hospitalization was supposed to prevent. The hospital and its staff, by undertaking treatment of the acutely suicidal Randy Vermilyea, assumed a duty of care toward him and it was foreseeable that a breach of that duty could result in his swift death from suicide. Negligently discharging a suicidal patient and leaving him to his own devices is not materially different from failing to provide a safe environment inside the facility.

Mississippi Department of Wildlife, Fisheries, and Parks v. Candace Webb, Thomas Harper, and Kathleen D. Webb –  boating accident/Tort Claims Act – On August 22, 2009, MDWFP officers observed  a boater speeding on the Tchoutacabouffa River. They navigated their patrol boats into the river to investigate and stop the boater. The boater came to an initial stop in the middle of the river in an area that was heavily traveled and used by others. Law enforcement instructed the boater to follow them down river into the nearest straightaway which was a safer area to stop and question the boater. The driver agreed and followed at first but then  turned and fled whereupon it collided with a vessel operated by Christopher Webb, killing Webb and injuring his  passenger Shane Webb. The boater, Donald C. Bernius,  pled guilty to boating under the influence causing death and injury, and was sentenced to twenty years. The plaintiffs sued MDWFP.  After a bench trial, the court held for  the plaintiffs finding that the MDWFP officers acted in reckless disregard for the safety of others when the officers told a boater to move to a safer area after they stopped him, but the suspect suddenly fled and caused a fatal boat collision. The circuit court awarded   awarded $466,666.77 to Candace Webb and $33,333.33 to Kathleen Webb.  The MDWFP  appeals.  The COA reverses and renders. The MSSC granted cert and reverses the COA.

It is possible that reasonable minds could differ on the question of whether Officers
Thrash and Delcambre acted in reckless disregard for the safety of others. But, despite substantial evidence adduced at trial supporting the thorough finding by the Circuit Court of the Second Judicial District of Harrison County that Officers Thrash and Delcambre acted in reckless disregard for the safety of others, the Mississippi Court of Appeals disagreed with the court’s conclusion and substituted its own findings of fact. Accordingly, we reverse the judgment of the Mississippi Court of Appeals and reinstate and affirm the judgment of the Circuit Court of the Second Judicial District of Harrison County.


Bettye Logan v. Klaussner Furniture Corporation d/b/a Bruce Furniture Industries and American Casualty Company of Reading, PA –  workers comp. – Logan was employed by the Klaussner Furniture Corporation  when in  October 2003, she was injured  when her foot became caught in some fabric fibers at work, causing her to fall. The AJ found that Logan had not suffered any industrial loss of use to her left lower extremity. The Commission affirmed. The COA  reversed and remanded  finding that (1) Logan had suffered a loss of wage-earning capacity, and (2) the evidence supported a finding of permanent-partial 2 disability or permanent-total disability.  On remand, the AJ  found that Logan suffered a sixty-percent loss of industrial use to her left lower extremity.  The  Commission affirmed  stating that it agreed with the AJ that Logan had the ability to return to employment at least at a sedentary level based on the medical and vocational evidence. On appeal, the COA reverses because the Commission failed to follow the COA’s opinion. The MSSC grants cert and reverses the COA finding that the Commission correctly awarded benefits in accord with its finding that Logan had a permanent-partial disability to her leg.


Estate of Russell Puckett v. Carol Clement –  The Court denies rehearing but substitutes the opinion.

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