Indemnity Agreements in Construction Cases
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...[ read more ]
Breach of Implied Warranty of Workmanship
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...[ read more ]
Federal Wiretaps
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...[ read more ]
Honest Services Fraud
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...[ read more ]
Make Whole Doctrine
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...[ read more ]
Collaterall Source Rule
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...[ read more ]
Implied Covenant of Good Faith and Fair Dealing in Mississippi
All contracts carry what is known as "an implied covenant of good faith and fair dealing. Good faith is described as "the faithfulness of an agreed purpose between two parties, a purpose which is consistent with justified expectations of the other party. The breach of good faith is bad faith characterized by some conduct which violates standards of decency, fairness...[ read more ]
Fraud in the Inducement in Mississippi
A contract for services or property may be voided if a Court finds there was "fraud in the inducement". In the Mississippi case of Great Southern Nat. Bank v. McCullough Environmental Services Inc., the Supreme Court held that "fraud in the inducement may arise when a party to a contract makes a fraudulent misrepresentation, i.e., by asserting information he knows to be...[ read more ]
Specific Performance in Mississippi
In Mississippi, specific performance is an equitable remedy available in breach of contract actions. The remedy is one of equity and is awarded in Chancery Court. In the Mississippi Supreme Court case of Lee v. Coahoma Opportunities, Inc., the Supreme Court held that "A claim for specific performance as a remedy for breach of contract is within the equity jurisdiction of...[ read more ]
The Use of Medical Records in Personal Injury Cases
In personal injury cases, the Plaintiff most prove that he or she suffered damages as a result of the defendant's negligence. Damages are most often proven through the use of medical bills as evidence at trial. However, Mississippi courts require that the records be authenticated prior to being admitted as evidence. Mississippi Rule of Evidence 803(6) provides that business records...[ read more ]
