Decisions – MSSC – 4/19/2019

Hand down list

James Allen Insurance Brokers and Certain Underwriters at Lloyd’s, London, Subscribing to Certificate NO. FRO-100944 v. First Financial Bankbinder of insurance – The Feazells have a chicken farm.  The farm is  secured by  loans from First Financial Bank.  In December 2013 the Feazells  requested a new policy of insurance from Lloyds with an effective date of December 13, 2013.   Their agent IAM  obtained a quote of $7,429.34 which must be paid within 10 days of agent’s written request to bind coverage.  The premium was paid to IAM but it failed to pass the payment on to the insurer James Allen Insurance Broker for Lloyds.  When the payment was not received on January 2, 2014, this resulted in a failure to satisfy an express condition of the written terms required to bind coverage for the requested effective date of December 13, 2013.  On January 5, 2014,  the Feazells’ poultry farm caught fire and was a total loss.  JAIB refused to cover the loss.  First Financial Bank made a claim on the policy as the loss payee.  JAIB denied coverage for nonpayment.  FFB sued and moved for summary judgment on the grounds that the binder was a policy of insurance that could not be canceled without notice. The trial court agreed and granted summary judgment to FFB.  The Defendants filed an interlocutory appeal and the MSSC affirms. “Although temporary, a binder is nonetheless “a contract of insurance.” T.H. Mastin & Co. v. Russell, 214 Miss. 700, 59 So. 2d 321, 324 (1952). And it is sufficient to trigger statutory notification requirements. Scottsdale Ins. Co. v. Deposit Guar. Nat’l Bank, 733 So. 2d 863, 865-66 (Miss. Ct. App. 1999).”

Jason Cunningham McGrath v. State of Mississippi 404(b) evidence –  Jason McGrath was found guilty of  four counts of sexual battery by a person in a position of trust and one count of touching a child for lustful purposes. The child was his stepdaughter, M. M. Before trial, the prosecution asked to admit evidence that McGrath had abused a former stepdaughter and an adopted daughter.  The trial court allowed some of the evidence and disallowed other evidence.  McGrath argues on appeal that the 404(b) evidence was error. The MSSC affirms.

Here, the trial judge heard extensive argument and testimony before admitting A. D.’s and J. M.’s testimony. He considered Rules 404(b) and 403 and made the required findings. He found A. D.’s testimony of her past sexual abuse was relevant to prove “motive, opportunity, intent, knowledge, [and] absence of mistake under 404(b).” He then filtered the evidence through Rule 403, and made an on-the-record finding that it was not “substantially outweighed by undue prejudice.” By comparison, the judge excluded some of J. M.’s proposed testimony about McGrath’s physical and verbal abuse. But he found J. M.’s testimony about McGrath’s fondling her and the swimming pool episode were probative of McGrath’s “intent and opportunity” and “not outweighed by the prejudicial effect.” Thus, he admitted those portions.

Genesis Hospice Care, LLC v. Mississippi Division of Medicaid and Drew Snyder, in His Official Capacity as Interim Executive Director of Mississippi Division of MedicaidMedicaid reimbursement for hospice care – Genesis Hospice LLC provided outpatient hospice care to Medicaid beneficiaries in the Mississippi Delta.  Because the hospice
claims Genesis submitted were outside the norm, the Mississippi Division of Medicaid
audited a statistical sample of 75 of the 808 billed claims.  The audit revealed that of the 75 claims audited, 68 were not substantiated by the patients’ records and thus were not eligible for payment. Medicaid’s statistician determined that  68 of 75 unsupported claims represented a total overpayment of $1,941,285 for the 808 claims Genesis billed during the relevant time period. Medicaid demanded Genesis repay this amount.  Genesis appealed administratively and lost and appealed to the Hinds County Chancery Court and lost. On appeal to  the Mississippi Supreme Court, the MSSC affirms.

John T. Seyfarth, Jr. v. Adams County Board of Supervisorspublic road – The Adams County Board of Supervisors designated Mount Airy Plantation Road as a public road in 2000.   John Seyfarth petitioned the Board to abandon the portion of the road that dead ends into his property. He claimed that  people were using the road to reach his property and trespass on it. The Board declined to abandon the road, denied Seyfarth’s request for damages, and did not address his requests that the Board take action to abate the nuisances he experienced. Seyfarth appealed to the circuit court, which affirmed the Board’s decisions not to abandon the road and not to award damages. But the circuit court ordered the Board to reasonably abate any nuisances to Seyfarth. Seyfarth appealed and the MSSC affirms all but the  circuit court’s ruling that the Board abate any  nuisances because the  Board has no legal authority to abate any nuisance in the manners suggested.

Judy S. Johnson v. Ronnie Goodson –  negligent driving of a golf cart – Johnson sued Goodson claiming she was a guest on his property and while a passenger in his golf court, he drove negligently causing her to be thrown from the cart and injured.  Johnson filed a motion for summary judgment arguing that  Johnson was a licensee and that he did not breach any duties owed to her as a licensee.  The trial court granted the motion.  On appeal, the MSSC finds that Johnson’s claim did not sound in premises liability but rather ordinary negligence. “The incidental fact that the driver of the golf cart was also the owner of the property on which the accident occurred is of no moment.”  The MSSC reverses and remands. “If proved, Goodson is liable for any injury caused by his negligence in actively operating the golf cart.”

Devin Ladarious Arrington v. State of Mississippi –  armed robbery – Arrington was indicted for armed robbery. After jury selection, Arrington requested a continuance to allow him to retain new counsel, which was denied. During his attorney’s opening statement, Arrington interrupted and declared that he did not want his counsel to continue representing him. On appeal he argues (1) whether the trial court erred in denying Arrington’s Motion for J.N.O.V or, in the Alternative, Motion for New Trial; (2) whether the trial court erred in denying Arrington’s request for a continuance; (3) whether Arrington had received ineffective assistance of counsel; (4) whether the trial court erred in not declaring a mistrial; and (5) whether cumulative error required reversal of Arrington’s conviction. The MSSC affirms.

In re Charlie Bluntpcr – Blunt filed a pcr petition styled as a Motion to Show Cause.  Blunt’s direct appeal became final in 2013 and he has filed numerous pcr petitions.  “After due consideration, we find that Blunt has presented no arguable basis for his claims, that no exception to the procedural bars exists, and that the petition should be dismissed. See Means v. State, 43 So. 3d 438, 442 (Miss. 2010).  Notwithstanding the procedural bars, the Court finds that the claims raised in the petition are without merit.
Finally, we find that the present filing is frivolous and that Blunt should be restricted
from filing further applications for post-conviction collateral relief (or pleadings in that nature) that are related to this conviction and sentence in forma pauperis.”

The Mississippi Bar v. Torrance J. Colvinattorney discipline –  Colvin was disbarred in Washington D.C. The Mississippi Bar is attempting to impose reciprocal discipline but has not managed to serve Colvin. “The Court hereby finds and adjudicates that the Mississippi Bar’s complaint should be, and it hereby is, dismissed without prejudice, inasmuch as service of process upon Colvin, in accordance with Rule 16 of the Mississippi Rules of Discipline, is incomplete.”

The Mississippi Bar v. S. David Pickettattorney discipline – Pickett had several bar complaints lodged against him.  He chose to ask for permission to  resign irrevocably.  The Mississippi Bar requests that the Court accept the irrevocable resignation of S. David Pickett and enter an order of disbarment.  The MSSC does so.

 

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