Thursday, August 17, 2017

Triggering the Appointment of a Guardian Ad Litem and Attorney's Fees

When is a guardian ad litem required in a custody case?   When is a party entitled to attorney's fees for having to defend and allegation of abuse and/or neglect?  The answers to these questions appear in Carter v. Carter 204 So.3d 747 (Miss. 2016) located here.  The allegations have to be of the type to trigger the jurisdiction of the Youth Court.  As such, mere allegations of bad parenting are not enough.  With that being said, if the allegations are not sufficient to trigger the provisions of 93-5-23, there is no basis to award attorney's fees for having to defend the allegations. 

Friday, August 11, 2017

Stacking

In Mississippi uninsured and underinsured (UM) stacking is permitted for “Class I” insureds (named insureds and resident relatives), generally, and more limited for “Class II” (permissive drivers and guest passengers).  Meyers v. American States Ins. Co., 914 So. 2d 669, 674 (Miss. 2005).  Class II insureds can only stack the accident vehicles’ coverage with any of his or her own personal coverage (i.e. other coverage he or she qualifies as an “insured” on).  A Class II insured does not have the right to stack an employer’s uninsured motorist coverage unless policy language provides otherwise.  Deaton v. Mississippi Farm Bureau Cas. Ins. Co., 994 So. 164, 167 (Miss. 2008).  Anti-stacking provisions in policies are void.  I have been able to use this in the past to stack coverages for Mississippi clients involved in accidents in other states using conflict of laws regarding contracts.

Tuesday, August 8, 2017

Enforcing Tennessee Settlements

Some good language to file away if a party in Tennessee tries to back out of an agreement:

Tennessee courts "now uniformly hold that if the terms of a settlement are announced to the court or memorialized in a signed, enforceable contract, a judgment may be entered thereon, even if one party later repudiates."  Grigsby v. Harris, 2012 Tenn. App. LEXIS 860, *8 (Tenn. Ct. App. Dec. 12, 2012) (citing In re Estate of Creswell, 238 S.W.3d 263, 268 (Tenn. Ct. App. 2007)).

Thursday, August 3, 2017

Exhaustion of Insurance Coverage

In Mississippi, if an insured does proceed to obtain the liability or other UM proceeds, he or she is generally not required to fully exhaust those limits.  The Mississippi Supreme Court in Mississippi Farm Bureau Mut. Ins. Co. v. Garrett, 487 So. 2d 1320 (Miss. 1986) held that in interpreting a requirement that an insured first obtain other “available” insurance, the term essentially implies a substantial exhaustion (i.e. having in mind the nature and extent of injuries, liability, settlement offered, and discounted by the costs and risks of seeking a greater sum).  What this means is that the failure to get full policy limits does not mean that you cannot get proceeds from the underinsured motorist policy.