Power of Attorney and Arbitration

I saw this as an idea on arbitration that may be a good idea to include in a power of attorney.

NO POWER TO AGREE TO BINDING ARBITRATION-– Although I have given my attorney-in-fact this general and durable power of attorney, I specifically withhold from my attorney-in-fact the power to agree or consent prior to the actual occurrence of controversy to binding arbitration therefor, nor to agree in advance to any other process that would preclude the right to have a jury decide any issue in controversy concerning my person or my property, nor to limit in advance in any way my procedural rights to litigate such claims and the damages to which I may be entitled if successful.  This does not, however, preclude non-binding alternative dispute resolution processes such as mediation nor does it preclude submitting a dispute after it has occurred to an arbitration following the advice of counsel.

Visitation Presumption

The Mississippi Supreme Court has made it  clear that  the  objective of visitation is  that  “the  non-custodial  parent  .  .  .  and  child should  have as close and loving  a  relationship as possible, despite the fact that theymaynot live in the same house.” Dunn v. Dunn, 609 So. 2d 1277, 1286 (Miss. 1992) (citing Clark v. Myrick, 523 So. 2d 79, 83  (Miss. 1999)).  However,  the Court  has  also  found  that,  while  a  non-custodial  parent  is  presumptively entitled to  visitation as stated  in Griffin v. Griffin,  that  presumption can be overcome when “substantial  evidence”  justifies  doing  so.  Griffin  v.  Griffin,  237  So.  3d  743,  747  (Miss.  2018) (quoting Cox v. Mounds,  490 So. 2d 866, 870 (Miss. 1986)).   Cf.  Newsom  v. Newsom,  557 So. 2d 511, 517 (Miss. 1990) (emphasis removed) (holding “that the chancery  court has the power to restrict visitation in circumstances which present an appreciable danger of hazard cognizable in our law”).

Continuing Duty of Insurance to Investigate

In Mississippi, an insurance company has a continuing duty to investigate a claim even after litigation is filed. As such, bad faith may arise for failing to investigate.   Defendant [insurance company] is under a duty to conduct a full and thorough investigation, it is also under a continuing duty to investigate a loss, even after a lawsuit has been filed. Anthony v. State Farm Fire & Cas. Co., 2009 U.S. Dist. LEXIS 112660, *4 (S.D. Miss. 2009); accord Sobley v. S. Natural Gas Co., 302 F.3d 325, 339 (5^th Cir. 2002); Gregory v. Continental Ins. Co., 575 So.2d 534 (Miss. 1991) This Court has long held that because of the ongoing duty of investigation, the parties are able to introduce evidence related to the claim evaluation both pre- and post- suit.  “Because of Defendant’s continuing duty to investigate a loss, Plaintiffs may not prevent Defendant from introducing evidence outside the claim file even if the evidence came to light in the context of litigation, i.e., the parties may offer any evidence from the entire claim evaluation process pre- and post-suit.” Lebon v. State Farm Fire & Cas. Co., No. 1:08cv509, 2010 WL 1064705, at *2 (S.D.Miss. Mar. 18, 2010).”  Russ v. Safeco Ins. Co. of America, 203 WL 1310501 at *14 (S.D. Miss. 2013).

Tennessee Punitive Damages Caps Found Unconstitutional

On December 21, 2018, the 6th Circuit found the statutory cap on punitive damages in Tennessee unconstitutional.  A link to the opinion is here.

Overnight Guest vs. Cohabitation

On October 30, 2018, the Mississippi Court of Appeals decided Bruton v. Bruton, No. 2017-CA-00124-COA (Miss. Ct. App. Oct. 30, 2018) located here.  One of the interesting issues in the case was that the Court of Appeals found the chancellor erred in holding a party in contempt for having a member of the opposite sex not related by blood or marriage stay overnight when the children were present.  The Court found  that the individual Mr. Burton was living with he was cohabitating with.  As such, she was not an "overnight guest."  The Court reasoned that the caselaw distinguishes from cohabitation and overnight guests.   This drew one of the funniest dissents I have seen where Judge Barnes noted "Further, as only "guests" are prohibited under the majority's analysis, Chuck would not have been in contempt of the order had he hired a prostitute to spend the night with the children present. She would, of course, have been an "invitee" rather than a "guest."  The moral of the case is that language in the order must be abundantly clear or a finding of contempt is not proper.

Modification of Child Support

A trial court may award retroactive child support dating back to the time in which the
motion for modification is filed.   See Lawrence v. Lawrence, 574 So. 2d 1376, 1384 (Miss.
1991).

Taxability of Personal Injury Settlements

The IRS has a guide on when personal injury settlements may be taxed and when they are not located here.