Monthly Archives: March 2015

Settlement Packages

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Prior to filing an action for personal injuries or medical malpractice, a settlement package may be prepared and delivered to the defendant’s insurance company.  A settlement package may aid the insurance in settling the case prior to litigation. The settlement package should include medical bills and records, a copy of the accident report, copies of any photographs depicting property damage or personal injuries, the personal story of the injured party and any other information on damages sustained.

If an insurance company makes any settlement offer, the attorney is ethically obligated to convey the offer to the client.  The attorney should then explain whether the offer is reasonable and should be accepted or rejected.  The ultimate decision as to whether to reject or accept the offer belongs with the client.

Possession of Property

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“The ownership, control, or occupancy of a thing”, most frequently land or personal property, by a person.The U.S. Supreme Court has held that “there is no word more ambiguous in its meaning than possession” (National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S. Ct. 209, 58L. Ed. 504 [1914]). The term “possession” has a variety of possible meanings. As a result, possession,or lack of possession, is often the subject of controversy in civil cases involving real and personal property and criminal cases involving drugs and weapon

Indemnity Agreements in Construction Cases

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An Indemnity Agreement is a contract provision wherein one party to the contract agrees to pay costs incurred by the other party to the contract as a result of the other party being held liable to a third party or having to defend against a claim filed by a third party.  Mississippi Code § 31-5-41 (1972) provides:

“With respect to all public or private contracts or agreements, for the construction, alteration, repair or maintenance of buildings, [or] structures…every covenant, promise and/or agreement contained therein to indemnify or hold harmless another person from that person’s own negligence is void as against public policy and wholly unenforceable.”

In the the case of Illinois Cent. Gulf R. Co. v. International Paper Co. the Mississippi Supreme Court held that this statute deals expressly with “work dealing with construction” and does not extend beyond the construction context. Id. 824 F.2d 403 (5th Cir. 1987). However, a “hold harmless”  provision will be enforced as long as a party is not seeking to recover for the party’s own negligence. American Cyanamid Co. v. Campbell Const. Co., 864 F. Supp. 580 (S.D. Miss. 1994).

Breach of Implied Warranty of Workmanship

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When a contractor fails to perform a construction project in a workman like manner, the owner may bring an action for breach of warranty. A breach of warranty claim is generally based on express warranty provisions contained in the contract between the owner and the general contractor and/or warranties implied by law. Under Mississippi law, contractors have a duty to construct all projects in a workmanlike manner, free from defects. Also, the contractor may not contract away his duties under the warranty. MISS. CODE ANN. § 11-7-18 (1994). The Mississippi case of Keyes v. Guy Bailey Homes, Inc. held that the warranty of workmanship is implied by law into every construction contract between a contractor and an owner., Id. 439 So. 2d 670 (Miss. 1983).  Through the implied warranty, a contractor agrees to perform work in accordance with the degree of workmanship normally possessed by those in the construction industry. Mayor and City Council of City of Columbus, Miss. v. Clark-Dietz and Associates-Engineers, Inc., 550 F. Supp. 610 (N.D. Miss. 1982). The contractor’s duty extends to subsequent purchasers as well. Keyes, 439 So. 2d at 672.

If the owner believes that a contractor has failed perform construction in a workmanlike manner, they may bring an action against the contractor for damages.

 

Federal Wiretaps

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Wiretaps require a court order based on a showing of probable cause.  A three-step process must be followed to obtain a court order:

1. The law enforcement officer conducting the investigation must prepare a detailed affidavit demonstrating that there is probable cause that the target telephone is being utilized to facilitate a “specific, serious, indictable crime”.

2. The prosecuting attorney for the federal, state, or local government must
work with the law enforcement officer to prepare an “application” for a
court order, based upon the officer’s affidavit.  If the investigation federal,
the application must be approved by the Attorney General, Deputy
Attorney General, Associate Attorney General, any Assistant Attorney
General, any acting Assistant Attorney General, or any Deputy Assistant
Attorney General in the Criminal Division designated by the Attorney
General.  If the investigation is being conducted on the state level, the application must be prepared and approved by the State Attorney General, district attorney or county prosecutor).

3.   The attorney must present the approved application to a federal or state judge who is authorized to issue a court order for electronic surveillance.

A court order is typically issued after a lengthy investigation and
the use of a Dialed Number Recorder or “DNR”.  The DNR is used to track
the outgoing calls from the suspect’s phone in order to demonstrate
that the targeted suspect is conducting criminal activity. .

Honest Services Fraud

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Honest-services fraud is a federal law law passed in conjunction with mail and wire fraud laws. It is a crime for executives and government officials to deny their constituents the “intangible right to honest services.”   The law cites two categories of fraud: public and private.  The public version applies to elected or appointed public officials. The second version applies to private citizens who fail to provide honest services to others. As a result, private honest-services fraud can be a universal crime with far reaching implications.

Honest services fraud is a felony that is punishable by five years in prison, a $250,000 fine, or both.

Make Whole Doctrine

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The recovery of damages in a personal injury action may be subject to what are known as  “reimbursement liens” or “subrogation liens” brought by the insurance provider of the injured party.  Such liens are especially common when the insurance provider is governed by ERISA. ERISA is the Employee Retirement Income Security Act of 1974, 29 USC 1001, et seq. which governs most employee health plans.  Current laws allow ERISA governed insurance providers to be reimbursed for medical cost paid through its insurance coverage. However, some cases stand for the proposition that the injured party should be “made whole” prior to reimbursing the provider.

The case of Barnes v. Indep. Auto. Dealers Ass’n of Cal. Health & Welfare Benefit Plan” the court held that “it is a general equitable principle of insurance law that, absent an agreement to the contrary, an insurance company may not enforce a right to subrogation until the insured has been fully compensated for her injuries, that is, has been made whole.” Barnes , 64 F.3d 1389, 1395 (9th Cir.1995).

Mississippi courts recognize the “Made Whole Doctrine”.  In the case of Hare v. State, the Court defined it as “the general principle that an insurer is not entitled to equitable subrogation until the insured has been fully compensated.” Hare, 733 So.2d 277 (Miss.1999).

If the defendant has a limited policy, and the plaintiff is not going to be made whole by the settlement, the argument can be made that to the settlement does not fully compensate your client for their injuries or damages.  If the plane language of the contract states otherwise, such arguments are void.  However, if the plan language is silent on this issue and does not waive this defense, this argument should be available.

 

Collaterall Source Rule

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In Mississippi, a defendant may not have his damages reduced because of amounts plaintiff receives from independent sources like insurance, workers’ compensation, or Medicaid. Walmart Stores, Inc. v. Frierson, 818 So. 2d 1135 (Miss. 2002); Brandon HMA, Inc. v. Bradshaw, 809 So. 2d 611 (Miss. 2001).  These decisions upheld verdicts in trials in which plaintiffs established medical damages by introducing the full face amount of the bills issued by health care providers in excess of the amounts Medicaid and Medicare actually paid, and plaintiffs were not responsible for the excess.

The Court has upheld this rule, known as the “collateral source rule” in multiple cases.  In the case of Burr v. Mississippi Baptist Med. Ctr, the court held that “compensation or indemnity for the loss received by plaintiff from a collateral source, wholly independent of the wrongdoer, as from insurance, cannot be set up by the defendant in mitigation or reduction of damages.”  Mississippi Baptist Med. Ctr. 909 So.2d 721, 728 (Miss. 2005).  Also see Geske v. Williamson, “The rule applies only when the compensation is for the same injury for which damages are sought”.  Williamson945 So.2d 429, 433 (Miss. Ct. App. 2006)  In that case, the trial court had admitted evidence of health insurance and workers’ compensation benefits for a separate and distinct injury than the injuries at issue. The “collateral source rule” also applies to private insurance, Medicare, and Medicaid and has also been applied to a victim’s rights fund which paid a portion of the decedent’s funeral expenses. Gatlin v. Methodist Medical Ctr., 772 So.2d 1023, 1031 (Miss. 2000).

The Mississippi Supreme Court has held that there is no reason to treat Medicaid or Medicare benefits any differently than private insurance payments which are subject to the collateral source rule. Wal-Mart Stores, Inc. v. Frierson, 818 So.2d 1135, 1140 (Miss. 2002); Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611, 618-20 (Miss. 2001). The collateral source rule applies to both gratuitous medical care and gifts received by the plaintiff. Brandon HMA, 809 So.2d at 618. see Collateral Source Rule and Exceptions, American Bar Association, Litigation Section.