Covid and Discovery

In Ogilvie v. Thrifty Payless, the Western District of Washington court denied the parties’ joint motion to extend court deadlines, including the fact discovery deadline, due to the dilatory impact of COVID-19 on the parties’ ability to conduct depositions. After noting the parties’ failure to address the possibility of taking depositions by remote means (and encouraging their use), the court put a sharp point on why the parties needed to resort to such depositions: “This pandemic may well be with us for many months to come. We will all need to adjust to keep litigation moving forward. Unless the parties have explored alternative means to complete discovery, the court does not consider the mere existence of the pandemic as ‘good cause’ for a delay in the case schedule.”

Citation:  Case No. C18-0718JLR, 2020 U.S. Dist. LEXIS 83620, at *6 (W.D. Wash. May 12, 2020).

Tennessee Self-Defense Case

The Tennessee Supreme Court has clarified that a trial court is required to charge a jury on self-defense only when the issue has been fairly raised by the proof at trial.

The defendant, Antonio Benson, was charged with first-degree premeditated murder.  The evidence presented at trial suggested that he and the victim became involved in a physical altercation, during which the unarmed victim punched the defendant and caused his nose to bleed.  In response, the defendant shot the victim five times.     At trial, the defendant argued that the jury should be allowed to consider whether he was lawfully defending himself.  The trial court found that nothing in the proof at trial raised the issue of whether the defendant lawfully used deadly force in defending himself against a punch in the nose by a petite, unarmed woman. The trial court, therefore, refused to charge the jury on self-defense.  The defendant was convicted of first-degree murder and sentenced to life in prison.

The Court of Criminal Appeals reversed, concluding that the trial court erred in not allowing the jury to decide whether the defendant lawfully defended himself with the use of deadly force.  The Supreme Court granted the State’s application for permission to appeal to consider the gatekeeping function of a trial court when assessing whether self-defense has been fairly raised by the proof and to further evaluate the quantum of proof necessary to require a trial court to charge a jury on self-defense.

In a unanimous opinion, the Supreme Court held that the trial court, not the jury, must make the threshold determination of whether self-defense has been fairly raised by the proof.  The Court determined that the trial court properly exercised its gatekeeping function in this case and was not required to charge the jury on the issue of self-defense because the evidence, when viewed in the light most favorable to the defendant including all reasonable inferences that could be drawn, did not fairly raise an issue of whether the defendant was lawfully defending himself when he used deadly force.  The Supreme Court reversed the holding of the Court of Criminal Appeals and reinstated the judgment of the trial court.

To read the unanimous opinion in State v. Antonio Benson, authored by Justice Roger A. Page, visit the opinions section of TNCourts.gov.

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.