In a joint and several liability Mississippi civil action action based on fault, including a medical malpractice action, each tortfeasor or wrongdoer is liable only for damages allocated to them in direct proportion to their percentage of fault. Miss. Code Ann. § 85-5-7 (Westlaw 2007). Fault must be assigned to absent tortfeasors who contributed to the injury (such as persons who have settled or were not sued) and those with immunity. Id.; Blailock v. Hubbs, 919 So. 2d 126 (Miss. 2005). This rule does not apply to acts committed with specific wrongful intent or as part of a common plan to commit a tortious act. § 85-5-7(1) and (4).
Category Archives: Personal injury
When an insurance policyholder has been sued and has presented the claim to its insurer for a defense, the plaintiff or insurance company may file a Declaratory Judgments to resolve issues involving insurance coverage. Such issues may relate to the existence of coverage for a particular claim, whether a policy exclusion is applicable, or the priority of coverage between two or more insurers. Am. Family Mut. Ins. Co. v. Moore, 912 S.W.2d 531 (Mo. Ct. App. 1995). However, a declaratory judgment action should not be filed to reform the policy or when the insurer has already denied coverage under an insurance policy.
Prior to the commencement of a declaratory judgment action there must be a determination as to whether a “justiciable controversy” exists. To establish a justiciable controversy, the petitioner must show that there is a controversy between adverse parties with “legal interests susceptible to immediate resolution and capable of present judicial enforcement.” Prof’l Firefighters Ass’n of Omaha v. City of Omaha, 803 N.W.2d 17, 26 (Neb. 2011).
When the policyholder has been sued and has presented the claim to its insurer for a defense, the presence of a justiciable controversy is usually apparent. However, as noted above, a declaratory judgment may not be filed when coverage has been denied. The denial of coverage by the insurer indicates that it was not uncertain or insecure of its rights, status, or legal relations with respect to the making of that decision.
The Mississippi Court of Appeals has dealt with the question of whether a criminal act that causing the “accidental death” of a person can be an “occurrence” or “accident” as defined in an insurance policy and whether a criminal act exclusion applies in Rita Kees Lambert, Individually, and v. Safeco Insurance Company of America, No. 2011-CA-00166-COA (Miss.App. 05/08/2012). Rita Kees Lambert, individually and as a personal representative of all heirs at law and wrongful-death beneficiaries of her son, Brian Michael Kees, filed a wrongful-death action in Rankin County Circuit Court against Al Ellis and John Does 1-10, alleging that Brian had suffered physical injuries and death as a result of Ellis’s gross negligence. The circuit judge assessed $75,000 in damages against Ellis. The circuit judge ultimately entered a final judgment finding that Ellis was not entitled to liability coverage under the homeowner’s insurance policy issued to him by Safeco Insurance Company of America (Safeco) for the $75,000 judgment entered against him as a result of Brian’s death. Lambert appealed.
On August 13, 2005, Brian and his father, Michael Kees, attended a swimming party at Ellis’s home in Brandon, Mississippi. Ellis claimed that at some point during the pool party, Michael went into Ellis’s home and stole money. Michael exited the house with Brian and hurried to his car. After concluding that Michael had stolen money from him, Ellis retrieved his pistol and followed Michael outside. As Michael exited the driveway, Ellis fired his pistol at Michael’s car, which Ellis claimed was an attempt to disable and stop the car. Ellis stated that he did not know that Brian was in the vehicle. One of the bullets ricocheted off of the pavement and hit Brian. Brian later died as a result of the gunshot wound. Ellis was arrested and charged with Brian’s murder. Ellis pled guilty to the lesser charge of manslaughter by culpable negligence, and he was sentenced to a term of incarceration, house arrest, and probation. Lambert, individually and as a personal representative of all heirs at law and wrongful-death beneficiaries of Brian, filed a wrongful-death suit in the Rankin County Circuit Court against Ellis and John Does 1-10. Ellis answered and denied liability for damages. On May 22, 2008, the circuit court entered an agreed order permitting Safeco, Ellis’s homeowner’s insurance carrier, to intervene in the wrongful-death action. On June 4, 2008, Safeco filed a complaint for declaratory judgment, asserting that Safeco’s homeowner’s insurance policy did not provide Ellis with liability coverage or a defense or indemnification for any claims arising out of Lambert’s wrongful-death suit. Safeco then filed a motion for summary judgment. Following a hearing, the circuit court denied Safeco’s motion, finding genuine issues of material fact on the issue of coverage. Lambert moved for partial summary judgment on the issue of Ellis’s liability, which the circuit court granted. The circuit court also entered an agreed order, assessing $75,000 in damages against Ellis. After a bench trial on the remaining issue of whether Safeco owed liability coverage to Ellis for Lambert’s $75,000 award of damages, the circuit court entered its judgment in favor of Safeco, finding that Ellis was not entitled to liability coverage under Safeco’s homeowner’s insurance policy. Lambert filed her appeal on January 28, 2011. On appeal, Lambert argues that the circuit judge erred by finding that Ellis is not entitled to liability coverage under his homeowner’s insurance policy, issued by Safeco, for the $75,000 judgment entered against him as a result of Brian’s death. Specifically, she claims that the circuit judge erroneously determined that the policy provides no coverage because: Ellis committed an illegal act; Ellis intended to discharge the firearm in the direction of the vehicle, actions that were not accidental and not an “occurrence” as required under the policy; and Ellis’s actions were intentional, thus barring coverage under the policy’s intentional acts exclusion. Under Mississippi law, when the words of an insurance policy are plain and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written. Additionally, provisions that limit or exclude coverage are to be construed liberally in favor of the insured and strongly against the insurer. In his final judgment on the issue of coverage, the circuit judge determined: “The uncontradicted evidence shows that . . . Ellis knowingly and willfully discharged his weapon at the vehicle in which Brian . . . was riding, evincing a depraved heart regardless of human life, and the evidence is uncontradicted and undisputed that . . . Ellis in fact pled guilty to the crime of manslaughter by culpable negligence. It cannot be disputed by the parties that . . . Ellis did in fact and in law commit a crime and thus an illegal act. Accordingly, the court finds that the death of Brian . . . was caused by an illegal act committed by . . . Ellis, and therefore, pursuant to the Illegal Acts Exclusion in the subject Safeco policy, Safeco does not owe liability insurance coverage to . . . Ellis for the claims being made against him as a result of the death of Brian . . . . Although there was no proof that Ellis intended to harm or kill Brian personally, the undisputed evidence showed that Ellis did intend the act of shooting a firearm towards and at the vehicle in which Brian was riding. Because Ellis intended the act of shooting his gun and shooting it at the Kees’ vehicle, Ellis’ actions were not an accident and thus not an “occurrence” as required under the subject Safeco policy. Lambert argued that although Ellis intended to discharge his firearm, the uncontradicted evidence established that he did not intend the consequences of his act – Brian’s death. Lambert also pointed out that Ellis pled guilty to manslaughter by culpable negligence, which she claims is not a specific-intent crime. Lambert thus claimed that the record shows that Ellis lacked the requisite intent to commit an illegal act; therefore, the illegal-acts exclusion in the policy does not apply. Ellis admitted that he indeed intended to discharge his firearm at the Kees’ vehicle, resulting in Brian’s death (although Ellis claims he only fired at the vehicle with the intention of disabling the car). That fact alone was sufficient for the Mississippi Court of Appeal and it affirmed the circuit judge’s finding that Brian’s death was caused by an illegal act committed by Ellis. Under the illegal-acts exclusion in the Safeco policy, therefore, Safeco could not not owe liability insurance coverage to Ellis.
Mississippi law is well settled that “when a contract is made between two parties that as between themselves creates an independent contractor relationship and involves employment generally performed under a simple master/servant or employer/employee relationship, it will be upheld as between the parties”. Richardson v. APAC-Mississippi, Inc.,631 So.2d 143 (Miss. 1994).
The court in Richardson went on to acknowledge that the right of parties to contract as they please is a constitutionally-protected right. U.S. Const. art. I, Sec.10; Miss. Const. art. 3, Sec. 16. Id. 143.
The Richardson court further held that affidavits from the contractor and employer are determinative in deciding whether an independent contractor relationship existed. Id.143. After reviewing the contract and the affidavits, the Court found that there existed an independent contractor relationship and not that of master-servant. Richardson v. APAC-Mississippi, Inc., 631 So.2d 151. McCary v. Wade, 861 So.2d 358 (Miss.App. 2003)
Some of the factors considered to determine independent contractor status include: 1.Does the principal master have the power to terminate the contract at will;
2. Does he have the power to fix the price in payment for the work, or vitally control the manner and time of payment;
3. Does he furnishes the means and appliances for the work;
4. The level of control of the premises;
5. Does the principal master furnishes the materials upon which the work is done;
6. Does the principal he have the right to prescribe and furnish the details of the kind and character of work to be done;
7. Does the principal have the right to supervise and inspect the work during the course of the employment;
8. Does the principal have the right to direct the details of the manner in which the work is to be done;
9. Does the principal have the right to employ and discharge the sub employees and to fix their compensation;
Motel and hotel owners in Mississippi can be held liable for the violent actions of third parties against guests in their establishment. Whether a motel owner is liable depends on a premises liability analysis.
The first step in a premises-liability action is to determine the status of the injured party. A person who enters the premises of another to the express or implied invitation of the occupant for their mutual advantage is an “invitee”. In Mississippi, business owners possess a duty to invitees to exercise reasonable care to keep the business premises in a ” reasonably safe condition.” Jacox v. Circus Circus Miss., Inc., 908 So.2d 181, 184 (¶ 7) (Miss.Ct.App.2005) (citing Jerry Lee’s Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss.1988)). In addition, a premises owner must employ reasonable care to protect an invitee from ” reasonably foreseeable injuries at the hands of another.” Stribling v. Rushing’s, Inc., 115 So.3d 103 (Miss.App. 2013) citing Newell v. S. Jitney Jungle Co., 830 So.2d 621, 623 (Miss.2002).
Mississippi law holds that an assault on the premises is reasonably foreseeable if the defendant had either: (1) ” actual or constructive knowledge of the assailant’s violent nature,” or (2) ” actual or constructive knowledge an atmosphere of violence existed on the premises.” Corley v. Evans, 835 So.2d 30, 38-39 (Miss.2003) (quoting Gatewood v. Sampson, 812 So.2d 212, 220 (Miss.2002)).
In assessing whether an ” atmosphere of violence” existed, the supreme court has stated that relevant factors include ” the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises,” and ” the frequency of criminal activity on the premises.” Id. 835 So.2d 30, 38-39.
If a motel or hotel owner has notice of crimes being committed on the premises, they must employ reasonable measures to ensure the safety of their guests. Such measures should include the employment of security guards and security cameras. Failure to do so increases the likelihood of injury to guest and liability.
In the case of InTown Lessee Associates, LLC v. Howard, a jury found that the InTown Motel had notice that an “atmosphere of violence” existed on the premises. InTown, 67 So.3d 711 (Miss. 2011). The Plaintiffs in that case were victims of armed robbery and aggravated assault while staying at the motel. In their joint complaint, the Plaintiffs claimed, among other things, “that InTown had failed to remedy or repair the unsafe conditions and inadequacies of the property; and that InTown had a duty to the plaintiffs to make sure that the facilities, including all common areas, as well as guest rooms, were secure, safe, and fit for their particular purposes, that reasonable security measures were provided and maintained, that the property, including the fences surrounding part of the property and the locks on all guest room doors, were properly maintained, and that general upkeep of the property was performed”. Id. 67 So.3d 711 (Miss. 2011). The jury agreed, awarding substantial damages to the Plaintiffs.
A premises liability analysis should be carefully applied to the facts and case law. Additionally, a thorough investigation of the facts must be conducted prior to pursuing any premises liability action.
