Intimately Connected Doctrine

Under the intimately connected doctrine, liability is not generally imposed on an owner who contracts with another to perform work, and the contractor or their employee suffers injuries that “arose out of or were intimately connected with the work.”  Magee v. Transcon. Gas Pipe Line Corp., 551 So. 2d 182, 185 (Miss. 1989) (citing Hathorn v. Hailey, 487 So. 2d 1342, 1344-45 (Miss. 1986)); see also Coho Res., Inc. v. Chapman, 913 So. 2d 899, 905-06 (Miss. 2005).  The lone exception applies to arrangements where “the project owner maintains any right of control over the performance of that aspect of the work that has given rise to the injury.”  Id. at 186 (citing Fruchter v. Lynch Oil Co., 522 So. 2d 195, 199-200 (Miss. 1988)); see also Chapman, 913 So. 2d at 906.

Mortgage and Covid-19

The update on the link here summarizes the credit reporting, mortgage forbearance, and the temporary foreclosure and eviction moratorium sections of the CARES Act, which became effective on March 27, 2020, and lists the types of mortgage loans covered by the Act.

The Update also includes general information applicable to all homeowners, links to the Fannie Mae and Freddie Mac loan look-up cites, and a link to a very basic template Request for Information to obtain the identity of the owner of a loan. 

Additional information on other COVID-19 related issues is available on NFHA’s COVID-19 webpage.

Unemployment in Mississippi and Covid-19

UPDATE on MDES and UNEMPLOYMENT Filing

If you are a Mississippi resident/employee/self-employed individual and have been laid off or suffered work loss due to COVID-19, you qualify for unemployment benefits. In addition to the MS unemployment benefit of $235 (max amount), the Federal Government is adding $600 to the benefit amount for a period of 4 months.



Based on the Federal law passed Friday morning and Governor Reeves Memorandum of Understanding executed last week, unemployment benefits will see an expansion in Mississippi of covered individuals (to include many self- employed, part time employees and workers who do not have enough credits to qualify). The guidance for filing is still the same, but alternative options have been added with a PDF fillable form (link at the bottom of this post). Call centers will be expanded from 7am to 10pm (7 days a week) beginning on Monday to help process claims and issues.

Much of the changes will be directed by the United States Department of Labor. The Department of Labor will give guidance to our Department of Employment Security in the coming days on eligibility and computation of benefits. The key now is that if you qualify for benefits, that you file and that the benefits for eligible claims will be back dated to your date of separation even if the application process is delayed.



Ways to File your Unemployment Claim:

·      File online during off peak hours (10pm-5am) Available 7 days a week, 24 hours a day mdes.ms.gov

·     ·Call Center # 888-844-3577 (7am-10pm), 7 days a week (beginning Monday 3/30/20)

·     ·Downloadable Form: https://mdes.ms.gov/media/178819/ui-501_form_web.pdf Once you have completed the form, please email it to: UIClaims@mdes.ms.gov or to your local WIN Job Center

·      DeSoto County Job Center DeSotocountyjobcenter@mdes.ms.gov 662-280-6218

 

Families First Corona Virus Response Act Summary

Here is a summary of the Families First Corona Virus Response Act.

Constitutionality of Tennessee Damages Caps

"In an opinion released [02/26/2020], the Tennessee Supreme Court answered three certified questions from the United States District Court for the Middle District of Tennessee, holding that Tennessee’s statutory cap on noneconomic damages in civil cases does not violate the Tennessee Constitution. This case arose from injuries sustained by the plaintiff, Jodi McClay, in a store at the Nashville International Airport in 2016. Ms. McClay filed a personal injury lawsuit against the defendant, Airport Management Services, LLC, in the United States District Court for the Middle District of Tennessee. Following a trial, a jury awarded damages to Ms. McClay, including $930,000 for noneconomic damages. Her noneconomic damages included pain and suffering, permanent injury, and loss of enjoyment of life.  After the District Court entered judgment, the defendant sought to apply Tennessee’s statutory cap on noneconomic damages, which limits noneconomic damages to $750,000 in most civil liability actions. Ms. McClay argued that the statutory cap is unconstitutional, and the District Court then certified three questions of law regarding constitutionality under the Tennessee Constitution to the Tennessee Supreme Court for consideration. The Tennessee Supreme Court accepted certification of the questions and heard oral argument in the matter. In the majority opinion, the Supreme Court first held that the statutory cap on noneconomic damages does not violate a plaintiff’s right to a trial by jury. The Court concluded that the General Assembly’s adoption of the cap on noneconomic damages was consistent with prior case law that had upheld statutes limiting remedies available at common law and statutes abolishing common law causes of action. Moreover, the Court reasoned that a jury retains the opportunity to make a factual determination as to the amount of noneconomic damages. Only after that determination does the trial court then limit the award as a matter of law based on the statutory cap. Second, the Court rejected a challenge to the cap under the separation of powers provision of the Tennessee Constitution. The Court concluded that the cap is a substantive change in the law that rests within the authority of the legislature and does not interfere with the courts’ authority to apply and interpret the law. Finally, the Court held that the statutory cap does not violate the equal protection provision of the Tennessee Constitution. Specifically, the Court concluded that Ms. McClay’s claim that the statute had a disparate impact on women was not a cognizable claim under the equal protection provisions of the Tennessee Constitution without proof of a discriminatory purpose. Accordingly, the majority of the Court held that the statutory cap on noneconomic damages was constitutional under the Tennessee Constitution. Justice Holly Kirby joined in the majority opinion and also filed a separate opinion further explaining her reasoning for holding that the cap does not violate the constitutional right to a jury trial. Justice Kirby said that the State’s founders included a right to a jury trial in the constitution to address whether the judge or the jury will decide issues to be resolved in a court case. It was not intended to prohibit substantive legislative enactments. Instead, she said, the constitutional provision historically was intended to function as a restraint on judicial power. Justice Cornelia A. Clark filed a dissenting opinion. Justice Clark concluded that the statutory cap violates the right to jury trial provision of the Tennessee Constitution, which guarantees that the right of trial by jury as it existed at common law “shall remain inviolate.” Justice Clark opined that this constitutional provision guarantees litigants the right to have a jury determine both the type and amount of damages. Justice Clark reasoned that the statutory cap usurps the jury’s constitutionally protected function and renders the jury’s factual findings meaningless. Justice Sharon G. Lee filed a separate dissenting opinion stating that the cap renders a jury's verdict for noneconomic damages meaningless when the verdict exceeds the cap. In addition, she noted that the majority's analysis did not follow previous case law which emphasized that injured parties have a right under the Tennessee Constitution for a jury to decide both the type and the amount of damages awarded at trial. The cap on noneconomic damages takes away that constitutional right and essentially reduces the jury's role to a mere procedural formality. Justice Lee's dissenting opinion explains that Tennessee does not have a problem in Tennessee with "runaway juries" and, by using real-life examples, points out that the cap affects only the most seriously injured victims." Click on the bold names To read the Supreme Court’s majority opinion in Jodi McClay v. Airport Management Services, LLC authored by Chief Justice Jeff Bivins, as well as the concurring opinion authored by Justice Holly Kirby and the dissenting opinions authored by Justices Cornelia A. Clark and Sharon G. Lee.

Medical Records for Deceased

§ 41-10-3. Heirs of decedents authorized to obtain copy of decedent’s medical records under certain circumstances; termination of authorization.

Universal Citation: MS Code § 41-10-3 (2018)

• (1) The following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:
  • (a) “Heir” means any person who is entitled to a distribution from the estate of an intestate decedent, or a person who would be entitled to a distribution from the estate of a testate decedent if that decedent had died intestate.
  • (b) “Medical records” means any communications related to a patient’s physical or mental health or condition that are recorded in any form or medium and that are maintained for purposes of patient diagnosis or treatment, including communications that are prepared by a health-care provider or by other providers. The term does not include (i) materials that are prepared in connection with utilization review, peer review or quality assurance activities, or (ii) recorded telephone and radio communications to and from a publicly operated emergency dispatch office relating to requests for emergency services or reports of suspected criminal activity; however, the term includes communications that are recorded in any form or medium between emergency medical personnel and medical personnel concerning the diagnosis or treatment of a patient.

• (2) Where no executor or administrator has been appointed by a chancery court of competent jurisdiction regarding the probate or administration of the estate of a decedent, any heir of the decedent shall be authorized to act on behalf of the decedent solely for the purpose of obtaining a copy of the decedent’s medical records. The authority shall not extend to any other property rights relating to the decedent’s estate.

• (3) A custodian of medical records may provide a copy of the decedent’s medical records to an heir upon receipt of an affidavit by the heir stating that he or she meets the requirements of this section and that no executor or administrator has been appointed by a chancery court with respect to the estate of the decedent.

• (4) The authority of the heir to act on behalf of the decedent shall terminate upon the appointment of an executor or administrator to act on behalf of the estate of the decedent. However, the custodian of medical records shall be entitled to rely upon the affidavit of the heir until the custodian of medical records receives written notice of the appointment of an executor or administrator.

• (5) A custodian of medical records shall not be required to provide more than three (3) heirs with a copy of the decedent’s medical records before the appointment of an executor or administrator.

• (6) The provisions of this section shall not prohibit an executor or administrator from requesting and receiving the medical records of a decedent after his or her appointment.

Minor Business

It is well-settled under Mississippi law that Chancery Courts have great authority and latitude when it comes to conducting minor’s business.  See Miss. Const., Art. 6 § 159 (“The chancery court shall have full jurisdiction” in matters and cases involving “minor’s business”).  See also Alack v. Phelps, 230 So.2d 789, 793 (Miss. 1970) (“Children are under the disability of minority and cannot act for themselves.  The equity court will protect their rights.”). 

Long ago, the Mississippi Supreme Court summed up well the broad authority conferred upon Chancery Courts to protect the rights of minors:

Infants and persons of unsound mind are disabled under the law to act for themselves.  Long ago it became the established rule for the court of chancery to act as the superior guardian for all persons under such disability….It is the inescapable duty of the said court and the chancellor to act with constant care and solicitude towards the preservation and protection of the rights of infants….The court will take nothing as confessed against them; will make for them every valuable election; will rescue them from faithless guardians, designing strangers…and in general will and must take all necessary steps to conserve and protect the best interest of these wards of the court.

Union Chevrolet Co. v. Arrington, 138 So. 593, 595 (Miss. 1932).