Decisions – MSSC – 1/31/2018

Hand down list

William Randle, Jr. a/k/a Booman and The Democratic Executive Committee of the City of Okolona, Mississippi v. Tommie James Ivy, Sr. –  election contest – In 2017, Okalona held an election for city marshall.  There were three candidates.  William Randle Jr. and Tommie James Ivy Sr. received the highest number of votes and were in the runoff.  In the runoff,  Randle was certified the winner with 522 votes. Ivy received 521 votes.  Ivy contested the election.  The Democratic party denied relief and Ivy petitioned for judicial review. At the hearing , Ivy questioned the legality of eleven affidavit ballots from five different wards. The  special tribunal determined that nine votes were illegal and two were legal. The new count was Ivy  518 votes and Randle  516 votes.   Randle appealed arguing that the special tribunal should have ordered  a special “primary” election and  not simply a special election.  The Court finds that the special tribunal held that Ivy was the winner of the primary and, thus, a general election was required.  However, it agrees with Randle that he should not have been excluded from running in the general election.

In the Matter of the Determination of Wrongful Death Heirs of Jeff Underhill, Deceased: Joe Alexander v. Matthew Bryan DeForest –  wrongful death determination/ service of process/rights of adopted child –  Jeff and Jenny Lee Underhill had a son Mathew in 1977. They divorced and Underhill voluntarily terminated his parental rights to allow Jenny Lee’s new husband Steven Wayne DeForest to adopt six-year-old Matthew. In 2015 Underhill was in a trucking accident in Greene County, Mississippi, and died. Deforest filed a wrongful death lawsuit and a petition to determine wrongful death beneficiaries.     One of Underhill’s brothers, Joe Alexander,  responded to the chancery action.  The chancellor found that Matthew was Underhill’s sole heir. Alexander appealed.  He argues that of process on him via certified mail was insufficient.  There was also, however, summons by publication.  The MSSC finds no error.  “We hold that in the instant case, the Rule 4 summons was sufficient, as the instant matter to determine wrongful death beneficiaries is not one of a determination of heirship as contemplated by Rule 81.”  Alexander next argues that Matthews right to inherit was foreclosed by the Michigan adoption.  In Mississippi, Matthew is a wrongful death beneficiary even though Michigan law would have declared that the adoption meant that he wasn’t a wrongful death beneficiary of his natural father.   Finally, Alexander argues that Mississippi did not have subject matter jurisdiction to determine Underhill’s heirs since he did not live here and had no property here.  “We agree that the chancery court did not have subject matter jurisdiction to determine Underhill’s heirs at law; however, the chancery court did not determine Underhill’s heirs at law. Because of the pending wrongful death action, the chancery court did have subject matter jurisdiction to determine Underhill’s statutory wrongful death beneficiaries, and chancery court did exactly that.”

Randy Binning v. State of Mississippi –  writ of prohibition to a court in another state – Williams Gaming sold a defective Keno machines that produced greater-than-normal payables due to a coding error.   Binning was a professional gambler.  He learned of the particular combinations of denominations and units to wager in order to increase his odds of winning. In April 2013, Binning won money on defective Keno machines in both Tunica, Mississippi, and Joliet, Illinois.  Later that same month,  law-enforcement officers in Arizona, seized more than $400,000 from Binning, a large portion of which Binning had won at Mississippi casinos.  He was indicted in both Illinois and Mississippi but the charges in both states were dismissed.  WMS and Arizona filed a civil forfeiture action. Binning  then filed an ex parte motion for extraordinary writ in the Circuit Court of Tunica County based on the Full Faith and Credit Clause.  He asked the  court to issue an extraordinary writ “explaining to the Superior Court of Arizona, Coconino County, that the Mississippi Gaming Act provides the sole jurisdiction and remedies in this matter.”   The circuit court denied relief.  On appeal, the MSSC agrees with the circuit court that Binning failed to provide sufficient authority that a court in Mississippi may issue a writ of prohibition to a court outside of the state.

Kathryn Schroeder Clark, with Power of Attorney for Helen Schroeder v. Lisa Younger Neese, Administratrix of the Estate of Harry L. Schroeder, Deceasedcar wreck/ after settlement with one the car that hit them, wife sues deceased husband for his negligence  (the Court denies rehearing but substitutes this opinion for the previous one)  – Harry Schroeder had just pulled onto the highway when his car was hit by a log truck killing him. His wife Helen suffered serious injuries and filed suit against the log truck owner both for herself and as a wrongful death beneficiary.  She ended up settling the case. She then sued Harry’s estate  based on his failure to yield the right-of-way. Harry moved for summary judgment on the grounds that the characterization of how the accident happened was at odds with how Helen characterized it in the later suit – judicial estoppel.  The circuit court agreed. On appeal the MSSC reversed. Clark v. Neese (“Clark I”), 131 So. 3d 556, 558 (Miss. 2013). On remand, Harry again moved for summary judgment, which the trial court granted on the basis of res judicata, accord and satisfaction, and contractual release. The trial court granted summary judgment again.  The MSSC again reverses finding that res judicata did not apply because Harry was not in privity with the previous defendants. Nor did Helen’s settlement of the first case release Harry.




Edward A. Hyde and Pattie Hyde v. Linus Baxter Martin, III, M.D. and Rush Medical Foundation d/b/a Rush Foundation Hospitalmedical malpractice/loss of chance – In 2014, 53 year old  Edward went to the Rush Foundation Hospital ER  with complaints of nausea, vomiting, and right-side numbness and weakness. A CT scan which according to the radiologist showed “[n]o acute intracranial abnormality” but no MRI was done and Edward was discharged.   Twelve hours later, Edward returned to the hospital and an MRI revealed Edward had suffered an ischemic stroke. At this point is was too late to use the  clot-buster drug tPA to restore blood flow.  Edward remained in the hospital for five days and now cannot walk without a cane or walker.  He filed suit against the hospital.  The trial court granted summary judgment for the hospital  after rejecting the opinions of Edward’s two medical experts because their opinions did not comport with the literature.  “Specifically, the trial court rejected Dr. Kamal’s testimony, based on the Emberson study, that the overall odds of a better outcome for patients who receive tPA is 75 percent better than those who did not receive tPA.” Edward appealed.  The MSSC reverses finding that the trial court erred when it excluded Edward’s experts.

The “50% threshold,” as the trial court dubbed our loss-of-chance standard, does not require a perfect result. Again, our law permits recovery based on a “reasonable probability of substantial improvement,” which we have defined as “a greater than fifty (50) percent chance of a better result than was in fact obtained.” White, 170 So. 3d at 508-09 (emphasis added). Thus, we find the trial court abused its discretion by applying to the Hydes’ expert testimony a higher standard than our law requires. To the extent Dr. Martin and the hospital challenge Dr. Kamal’s opinion on the reasonable probability that those who receive tPA substantially improve, we find this sets up a classic battle of the experts for the fact-finder to resolve, not a barrier to Dr. Kamal’s testimony. See White, at 509 (holding that the case “present[ed] nothing more than a classic example of a ‘battle of the experts,’” with the plaintiff offering expert testimony that “supported a reasonable probability of a substantially better outcome,” and the defendant offering “expert testimony that supported only a potential chance of a substantially better outcome”)

The Door Shop, Inc. v. Alcorn County Electric Power Association –  ability of electric power association to collect for years-old underbilling –  Over a several year period, the Alcorn County Electric Power Assoc. underbilled the Door Shop for electricity. When it discovered the error, it sought to recover the $25,658.58 difference via supplemental billing. The Door Shop refused to pay.  ACE filed suit and was granted summary judgment.  The Door Shop appealed arguing that the circuit court did not have jurisdiction, only the Miss. Public Service Commission did.  By statute, though, the MPSC does not have jurisdiction over the rates charged by cooperative gas or electric power
associations to the members thereof as consumers. The MSSC affirms.

Jonsha Bell v. State of Mississippi –  95 year sentence for juvenile – Bell was 17 when he committed crimes for which he was later convicted of armed robbery, burglary and two counts of  kidnapping. He filed a motion for post conviction relief asserting that his 95-year sentence is an illegal, life-without-parole sentence for a juvenile, non-homicide offender.  The MSSC denies relief.

Colony Insurance Company v. First Specialty Insurance Corporation –  voluntary payment doctrine –  Accu-Fab employee Jerry Taylor was killed on 2014 in an explosion at a facility owned by  Omega Protein Corp. in Moss Point.  Omega was the named policyholder of two third-party insurance policies:  ACE American Insurance Company  provided a $1,000,000 primary commercial general liability policy with a $250,000 deductible. First Specialty Insurance Corporation also provided a $10,000,000 excess liability policy, which provided limits in excess of the underlying AAIC policy.  Accu-Fab was the named policyholder of a third-party insurance policy issued by Colony: a primary liability policy $1,000,000 liability limit. The Colony Policy contained an “Additional Insured” provision, which designated “[a]ll persons or organizations as required by written contract with the Named Insured” as being insureds under the Colony Policy as well, subject to certain  limitations and exclusions.  Omega informed Colony that it expected to receive a personal injury claim and demanded that Accu-Fab and Colony “defend and fully indemnify [it] from any [such] claims.”  In  2015, Colony filed a complaint for declaratory judgment in  Jackson County, Mississippi.  A wrongful death suit was filed that same year.  Colony subsequently agreed to fund Omega’s defense, subject to a “full and complete” reservation of rights. At the settlement conference, Colony excluded First Specialty’s representative from the conference and agreed to pay its $1,000,000 policy limit in exchange for Omega’s release from the lawsuit.  Colony then demanded that First Specialty reimburse the full amount Colony contributed to the Taylor settlement. When First Specialty refused, Colony filed an action seeking  reimbursement.  The district court found that Mississippi’s voluntary payment doctrine precluded Colony from recovery for payments made on behalf of a defendant that it did not insure and granted First Specialty’s motion for summary judgment.  On appeal, the Fifth Circuit certified two questions to the MSSC.

1) Does an insurer act under “compulsion” if it takes the legal position that an
entity purporting to be its insured is not covered by its policy, but nonetheless
pays a settlement demand in good faith to avoid potentially greater liability that
could arise from a future coverage determination?
2) Does an insurer satisfy the “legal duty” standard if it makes a settlement
payment on behalf of a purported insured whose defense it has assumed in
good faith, but whose coverage under the policy has not been definitively
resolved, even if the insurer maintains that the purported insured is not actually
insured under the policy?

The MSSC answered the first question holding that  an insurer is barred from seeking indemnity for a voluntary payment.  In order to recover, the indemnitee must
prove that it both paid under compulsion and that it was legally liable to the person injured. It declines to answer the second question.




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