Mississippi Code 11-7-13

The Mississippi Wrongful death statute allows for an action to commence without an estate being open.  However, on a practical level, an estate normally has to be opened once the matter is resolved on who the money is to be paid to.  Some of the relevant language is below.  

In an action brought pursuant to the provisions of this section by the widow, husband, child, father, mother, sister or brother of the deceased or unborn quick child, or by all interested parties, such party or parties may recover as damages property damages and funeral, medical or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission or breach of warranty, whether an estate has been opened or not. Any amount, but only such an amount, as may be recovered for property damage, funeral, medical or other related expenses shall be subject only to the payment of the debts or liabilities of the deceased for property damages, funeral, medical or other related expenses. All other damages recovered under the provisions of this section shall not be subject to the payment of the debts or liabilities of the deceased, except as hereinafter provided, and such damages shall be distributed as follows:

Damages for the injury and death of a married man shall be equally distributed to his wife and children, and if he has no children all shall go to his wife; damages for the injury and death of a married woman shall be equally distributed to the husband and children, and if she has no children all shall go to the husband; and if the deceased has no husband or wife, the damages shall be equally distributed to the children; if the deceased has no husband, nor wife, nor children, the damages shall be distributed equally to the father, mother, brothers and sisters, or such of them as the deceased may have living at his or her death. If the deceased have neither husband, nor wife, nor children, nor father, nor mother, nor sister, nor brother, then the damages shall go to the legal representative, subject to debts and general distribution, and the fact that the deceased was instantly killed shall not affect the right of the legal representative to recover. All references in this section to children shall include descendants of a deceased child, such descendants to take the share of the deceased child by representation. There shall not be, in any case, a distinction between the kindred of the whole and half blood of equal degree. The provisions of this section shall apply to illegitimate children on account of the death of the mother and to the mother on account of the death of an illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates. The provisions of this section shall apply to illegitimate children on account of the death of the natural father and to the natural father on account of the death of the illegitimate child or children, and they shall have all the benefits, rights and remedies conferred by this section on legitimates, if the survivor has or establishes the right to inherit from the deceased under Section 91-1-15.

Federal Witness Fee Amounts

The following is information about the financial aspects regarding witnesses. Under 28 U.S.C. § 1821, a $40.00 per day attendance fee is established for a witness in a court of the United States. It also entitles a witness to reimbursement of travel and subsistence expenses in the same amounts payable to a federal government employee for official travel. You may view the complete statute at http://www.law.cornell.edu/uscode/text/28/1821.

The $40 attendance fee is a daily fee. If attendance is required for multiple days, the witness is entitled to the attendance fee for each day their appearance is required.

In addition to the attendance fee, a witness is also entitled to receive compensation for their travel. Title 5 United States Code § 5704 authorizes a mileage fee equal to the mileage allowance which the Administrator of General Services has prescribed. Current mileage rates can be obtained from the United States General Services Administration website at http://www.gsa.gov/mileage.

In addition to mileage, a witness is also entitled to reimbursement of any parking fees incurred.

Sanctions for Failure to Attend a Deposition

The rule governing a party's failure to attend a properly noticed deposition is very clear. "If a party . . . fails . . . to appear before the officer who is to take his deposition, after being served with a proper notice, . . . the court in which the action is pending on motion . . . may take any action authorized under subsections (A), (B), and (C) of subsection (b)(2) of this rule." M.R.C.P. 37(d) (emphasis added). One of the actions authorized by subsection (b)(2) is the issuing of an order "dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]" M.R.C.P. 37(b)(2)(C). So under Rule 37, dismissal is an authorized sanction. 

Conservatorship to Probate

Below is Mississippi Code Annotated 91-7-68.  Most people nor attorneys are aware of it but it provides for a conservatorship to be converted to an estate.


Upon the death intestate of any person under legal disability for whom a guardian, conservator or other fiduciary has been appointed by a court of competent jurisdiction and is serving, the judge or clerk of such court, upon proof of death of such person, may issue letters of administration to the already acting fiduciary, unless some relative or other person entitled to administer the estate shall within thirty days after the death of such person apply to the court for such administration. Upon the issuance of letters of administration to the already acting fiduciary, such fiduciary shall thereupon publish notice to creditors and administer the decedent's estate in the manner required by law. Such fiduciary's bond shall continue in force and he shall make only one (1) final account, unless the court, on the motion of any interested party or its own motion, shall require additional bond or accounting.

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).