Case of Interest

Yesterday, the Mississippi Supreme Court decided American Compensation Insurance Company v. Hector Ruiz, Doing Business As Los Primoz Construction; Raul Aparacio; Jesco, Incorporated; and Appalachian Underwriters, Incorporated located here.  This was a good decision for workers as it found that an insurance company cannot void coverage due to alleged misrepresentations by an employer in filling out a worker's comp insurance application.    Ironically, we had resolved a case in the Western District of Tennessee coming to the same conclusion a few months earlier. 

Book of Interest

 AAJ just released Litigation Obstruction:  Breaking Through by Mark Kosieradzki.   I received a copy last week and it is excellent and perhaps the most detailed book I have seen on answering or lack of answers on discovery.   A link to it is here.   

Possible Language to Add to Mediation Agreement

 

There are no other material terms to the settlement other than as set forth in this mediation agreement” “The mediation agreement sets for the intent of the parties and shall be attached and adopted by any subsequent release”

 

ABA Ethics Opinion

 

The American Bar Association (ABA) last week issued Formal Opinion 511 stating that, under Rule 1.6 of the Model Rules of Professional Conduct, attorneys do not have implied authorization to reveal information about a client’s representation to a wider group of lawyers by posting a comment or inquiry on a listserver discussion group. To do so within ethical boundaries, lawyers must have the client’s informed consent.

Rule 1.6 prohibits lawyers from revealing information relating to the representation of a client unless the client gives informed consent. It is not limited to information subject to attorney-client privilege. Extending the rule to listserver postings, the opinion pointed out that posting to a listserver is not the same as seeking the counsel of an individual lawyer or select group of lawyers in a client matter. Participants in a listserver discussion group are often unknown to the person posting. As such, attorneys cannot count on the audience to keep any disclosures confidential. In fact, the opinion noted, there is no way for the posting lawyer to ensure that their client’s information will not be disseminated further by another listserver participant, used against the client, or even seen by those representing another party in the same case.

Similarly, lawyers cannot skirt the rule by posting in “anonymized, hypothetical, or [ ] abstracted form” if there is a reasonable likelihood that someone seeing the posting could discover the client’s identity. Posting in hypothetical or anonymous terms must therefore also be done only with the client’s informed consent. Rule 1.0(e) provides guidelines for what constitutes informed consent.

The opinion recognized that listservers can fulfill a useful educational purpose for lawyers. It acknowledged that these discussion groups can be a good way for attorneys to stay abreast of changes in the law, update each other about new case law, and share recommendations. Using listservers in these ways is unrelated to specific client matters and can therefore be done without obtaining a client’s informed consent. The opinion cautioned, however, that lawyers should remain vigilant about the confidentiality risks listservers pose and should be mindful of ethical boundaries before posting anything to a listserver.

Attorney Amir Tahmassebi, who is a co-chair of the Chicago Bar Association’s professional responsibility committee, said “In my view, ABA Opinion 511 correctly interprets Rule 1.6 and provides important guidance relating to disclosing confidential information. It highlights the importance of attorneys protecting their client’s confidential information, which is the bedrock of the attorney-client relationship."

Understanding Mississippi Law on Towing and Storage Costs: What You Need to Know

 Understanding Mississippi Law on Towing and Storage Costs: What You Need to Know

Are you aware of your rights and responsibilities when it comes to towing and storage costs in Mississippi? Whether you're a vehicle owner, a towing company, or a real property owner, it's crucial to understand the regulations outlined in Mississippi Code Annotated section 85-7-251.

1. Liability for Towing and Storage Costs: According to the statute, the owner of a motor vehicle that has been towed is liable for the reasonable price of towing and storage. This applies in various scenarios, including towing at the request of the owner, at the direction of a law enforcement officer, or upon request of a real property owner for a vehicle left without permission for more than five days.

2. Notice Requirements: Towing companies are required to report towed vehicles to the local law enforcement agency within 24 hours unless towed at the owner's request. If the owner hasn't contacted the towing company within five business days, efforts must be made to locate the owner and lienholder. Notification of the amount due must be sent via registered mail within ten days of the initial tow. Failure to comply with these notice requirements may preclude the imposition of storage and towing charges.

3. Sale of Towed Vehicles: If towing and storage charges remain unpaid for 30 days, the towing company can commence the sale of the vehicle at public auction after providing notice to legal owners and lienholders. Notice of the sale must be published in a newspaper with circulation in the county where the vehicle was initially towed. Proceeds from the sale, after covering expenses, are held for six months and then become the property of the county if not reclaimed by the owner.

4. Recordkeeping Requirements: Towing companies are obligated to maintain accurate records for three years, identifying towed vehicles and detailing compliance with the statute's provisions.

Conclusion: Understanding Mississippi's laws regarding towing and storage costs is essential for all parties involved. Whether you're a vehicle owner, a towing company, or a real property owner, compliance with these regulations ensures fair treatment and protection of rights. If you have questions or concerns about your rights and obligations under Mississippi law, it's advisable to consult with legal experts familiar with the intricacies of these statutes.

CLE with Discount

 I recently presented “Pain and Suffering Damages: Simple Yet Effective Strategies for Plaintiff's Lawyers” for National Business Institute, which you can now watch OnDemand. Use promo code FPDN50A at checkout to get $50 off your purchase. Check it out at https://www.nbi-sems.com/ProductDetails/98131SVDM

Tennessee Negligent Supervision

The Tennessee Supreme Court yesterday held that a plaintiff may go forward with claims of direct negligence against a business even after the business admits it is indirectly liable for any negligence of its employee.  The Court also held that a plaintiff may assert concurrent claims based on both negligent activity and premises liability.

On December 17, 2018, Melissa Binns (“Plaintiff”) allegedly slipped and fell at a grocery store owned and operated by Trader Joe’s East, Inc. (“Defendant”) in Nashville, Tennessee.  Plaintiff claimed that an employee of Defendant negligently loaded and stocked tofu in the store, causing a package to fall and release a clear liquid onto the floor.  While shopping, Plaintiff walked down the aisle with the spill, slipped on the liquid, and suffered injuries.  Plaintiff filed suit, alleging premises liability, negligent training, negligent supervision, and indirect or “vicarious” liability against Defendant.  In its answer, Defendant denied liability for the incident but admitted it would be vicariously liable for the conduct of its employee if the fact finder determined the employee was negligent. 

Defendant then filed a motion for partial judgment on the pleadings, attempting to dismiss Plaintiff’s negligent training and supervision claims.  Defendant argued that Plaintiff’s direct negligent claims were “legally deficient” for two reasons.  First, Defendant argued that the negligent training and supervision claims were precluded because Defendant had admitted to being vicariously liable for the actions of its employees, a theory known as the “preemption rule.”  Alternatively, Defendant argued that “negligent activity” and premises liability claims cannot be asserted concurrently in a lawsuit by a single plaintiff because the claims are logically inconsistent.  

The trial court denied Defendant’s motion for partial judgment on the pleadings.  However, the trial court granted Defendant permission to file an interlocutory appeal to ask the Court of Appeals to determine the viability of Defendant’s proposed rules under Tennessee law.  Although the Court of Appeals declined Defendant’s application, the Tennessee Supreme Court granted review.

The Tennessee Supreme Court affirmed the trial court’s ruling.  First, the Court declined to adopt what courts call the “preemption rule,” which says that once an employer admits vicarious liability for its employee’s negligence, plaintiffs cannot go forward with claims of direct negligence against the employer.  The Court explained that the preemption rule conflicts with Tennessee’s system of modified comparative fault, among other concerns.

The Court also declined to adopt Defendant’s proposed rule involving “negligent activity” and premises liability claims.  It explained that even if claims for “negligent activity” and premises liability are logically inconsistent under the particular facts of a given case, the Tennessee Rules of Civil Procedure permit parties to state separate claims in their complaint, “regardless of consistency.” 

To read the unanimous opinion in Binns v. Trader Joe’s East Inc., authored by Justice Roger A. Page, visit the opinions section of TNCourts.gov.