Apportionment and the Caps

On Thursday, the Mississippi Supreme Court dismissed the cert petition granted in Mississippi Valley Silica Company, Inc. v. Dorothy Barnett, Individually and as Wrongful Death Beneficiary of Howard Barnett, Deceased, and on Behalf of All Wrongful Death Beneficiaries of Howard Barnett, Deceased finding that it was improvidently granted.  This left the Court of Appeals opinion as the law in place located here. 

The main issue of interest is how the caps on noneconomic damages apply when there is more than one Defendant.  Mississippi Code Section 11-1-60(2)(b) provides that “in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than One Million Dollars ($1,000,000.00) for noneconomic damages.”  The statute further provides that “[i]t is the intent of this section to limit all noneconomic damages to the above.”  Id.  Mississippi Code Section 85-5-7(2) provides that “the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a joint tort-feasor shall be liable only for the amount of damages allocated
to him in direct proportion to his percentage of fault.”.

Reading these two together, the defendants are assigned their amount of fault by the jury, then the caps are applied only to their portion of liability. 

Worker's Compensation and Social Security

Many times, an individual on worker's compensation later gets social security disability.  How does a lump sum payment affect social security?  The answer depends on how the settlement documents are drafted.  Worker’s compensation attorneys often try to draft settlement agreements to minimize any offset of SSDI benefits. Social Security will look at the language of the worker’s compensation settlement document to decide how much of the settlement is subject to offset.

For example, Mr. Smith's attorney might specify that the $24,000 is meant to be a $50 per month payment for every month until he reaches 65 ($24,000/480 months). Social Security would calculate any SSDI offset based on $50 per month for 480 months. Because Mr. Jones would have a lower monthly income from workers' comp, he would lose less SSDI, or might escape the offset entirely.

Language to Consider in Email Disclaimer

Below are some samples of language that may need to be added to your attorney email disclaimer.

THIS ELECTRONIC COMMUNICATION IS PRIVILEGED AND CONFIDENTIAL
IMPORTANT NOTICE TO EMAIL RECIPIENTS:

1. DO NOT read, copy, or disseminate this communication unless you are the intended addressee. This email communication contains confidential and/or privileged information intended only for the addressee. Anyone who receives this email by error should treat it as confidential and is asked to call (collect) _ _[name of law firm]_ _ at _ _[phone number]_ _ or reply by email: _ _[law firm’s email address]_ _; or by fax: _ _[law firm’s fax no.]_ _.

2. This email transmission may not be secure and may be illegally intercepted. Do not forward or disseminate this email to any third party. Unauthorized interception of this email is a violation of federal law.

3. Any reliance on the information contained in this correspondence by someone who has not entered into a fee agreement with _ _[name of law firm]_ _ is taken at the reader’s own risk.

4. The attorneys of _ _[name of law firm]_ _ are licensed to practice law ONLY in California and do not intend to give advice to anyone on any legal matter not involving California law.

Medical Causation Language

The Mississippi Court of Appeals decided City of Jackson v. Graham on Tuesday located here.  The opinion had the clearest statement on medical bills I am aware of in a personal injury case. The Court stated “Proof that medical, hospital, and doctor bills were paid  or  incurred  because of  any  illness,  disease,  or  injury   shall  be prima  facie  evidence that  such  bills  so  paid  or  incurred  were necessary  and  reasonable.”    Boggs  v.  Hawks,  772  So. 2d  1082,  1085  (¶7)  (Miss.  Ct.  App.  2000);  see  also  Miss. Code  Ann.  §  41-9-119  (Rev.  1993). Further,  the  supreme  court  has  previously  held  that,  “when  a  party  takes  the  witness  stand  and exhibits  bills  for  examination  by  the  court  and  testifies  that  said  bills  were  incurred  as  a  result of  the  injuries  complained  of,  they  become  prima  facie  evidence  that  the  bills  so  paid  or incurred  were necessary  and  reasonable.”    Jackson  v.  Brumfield,  458  So.  2d  736,  737  (Miss. 1984).    “However,  the  opposing  party  may,  if  desired,  rebut  the  necessity  and  reasonableness of the bills by proper evidence.” Id.“The ultimate question is then for the [fact-finder] to determine.”  Id.   The law in this area is certainly easier than in Tennessee where all of those have to be shown normally by doctor's deposition of every doctor.

Pedestrian claims

I saw a creative argument on a pedestrian claim a few days ago.  It appears that several insurance policies have been written to provide for medical payment coverage to people "upon" a vehicle which is how occupancy is defined in automobile policies.  As such, it appears that you can get medpay coverage from the at fault diver in addition to the regular coverage from an at fault driver since the pedestrian is upon them for being hit.  Sounds funny, but does appear to fly no pun intended.  

Child Hostility and Child Support

Yesterday, the Mississippi Supreme Court decided Copeland v. Copeland located here.  The issue in the case is when does the hostility of a child warrant child support being forfeited?  The Court ruled that when the conduct is clear and extreme, it warrants termination even for teenagers.  The Court further found that when the trial court finds this conduct, the child support guidelines are not applicable.