Legal Points on Mississippi Default Judgments

Below is some random points on Default Judgments in Mississippi.

The Mississippi Supreme Court has been clear that " default judgments are not favored." McCain, 791 So.2d at 843 (¶ 10); Guar. Nat'l Ins. Co. v. Pittman, 501 So.2d 377, 387-88 (Miss. 1987). " [T]rial courts should not be grudging in . . . vacating such judgment where showings within the rules have arguably been made." Guar. Nat'l Ins. Co., 501 So.2d at 387-88 (citing Bell v. City of Bay St. Louis, 467 So.2d 657, 666 (Miss. 1985)). The Court has instructed that a trial court's discretion in deciding whether to vacate a default judgment " must be exercised in accordance with the provisions of Rules 55(c) and 60(b) as well as the supplementary criteria given validity in the decisions of this Court." Guar. Nat'l Ins. Co., 501 So.2d at 388. ¶23. According to Rule 55(c), a default judgment may be set aside " [f]or good cause shown" and in accordance with Rule 60(b). Miss. R. Civ. P. 55(c). The Court has articulated a three-pronged balancing test to apply in deciding whether to set aside a judgment pursuant to Rule 60(b): the trial court must consider " (1) the nature and legitimacy of the defendant's reasons for his default, i.e. whether the defendant has good cause for default, (2) whether the defendant in fact has a colorable defense to the merits of the claim, and (3) the nature and extent of prejudice which may be suffered by the plaintiff if the default judgment is set aside." Rogillio, 10 So.3d at 468 (¶ 10) (citations omitted).

The Mississippi Supreme Court has unequivocally that " the second factor, the presence of a colorable defense, outweighs the other two, and we have encouraged trial courts to vacate a default judgment where 'the defendant has shown that he has a meritorious defense.'" Allstate Ins. Co. v. Green, 794 So.2d 170, 174 (¶ 9) (Miss. 2001) (citing Bailey v. Georgia Cotton Goods Co., 543 So.2d 180, 182 (Miss. 1989)). See also Flagstar Bank, FSB v. Danos, 46 So.3d 298, 307 (¶ 32) (Miss. 2010) (" colorable-defense prong is the most important factor" ) (citing Rogillio, 10 So.3d at 469 (¶ 16)). Regarding a trial court's discretion in setting aside default judgments, the Court has held: " [T]he importance of litigants having a trial on the merits should always be a serious consideration by a trial judge in such matters. Thus, any error made by a trial judge should be in the direction of setting aside a default judgment and proceeding with trial." Green, 794 So.2d at 174 (¶ 9) (quoting Clark v. City of Pascagoula, 507 So.2d 70, 77 (Miss. 1987)).

To satisfy the colorable defense prong, " a party must show facts, not conclusions, and must do so by affidavit or other sworn form of evidence.'" Capital One Servs., Inc. v. Rawls, 904 So.2d 1010, 1016 (¶ 19) (Miss. 2004) (quoting Rush v. North Am. Van Lines, Inc., 608 So.2d 1205, 1210 (Miss. 1992)). In Rush, the Court wrote: " Next is the matter of a defense on the merits. Here the law demands more than a mere wish and a prayer. To show a creditable [sic] defense in the present setting, a party must show facts, not conclusions, and must do so by affidavit or other sworn form of evidence." Rush, 608 So.2d at 1210.

The fact that the plaintiffs would be required to litigate their case and prove their claims is not " cognizable prejudice." Kumar, 80 So.3d at 816 (¶ 29) (citing Bailey, 543 So.2d at 183). " The mere fact [that] the plaintiff may have to try and prove his case does not stay the judicial hand. That is not the sort of prejudice the rule contemplates." Rush v. North American Van Lines, 608 So.2d 1205, 1211 (Miss. 1992). Prejudice does not result from " the loss of rights that were obtainable only by default." In re Estates of Gates, 876 So.2d 1059, 1065 (¶ 18) (Miss. Ct. App. 2004).

Book of Interest

I recently got a copy of Cross Examination, A Primer for the Family Lawyer.  A copy can be bought here.    Overall, it is a good book that can give the beginning family law attorney so ideas on where to go in cross-examination.  For the more experienced, it has some good samples of cross on psychologists and financial experts.

Tennessee Collateral Source

In a case closely watched by Tennessee lawyers, the Tennessee Supreme Court has declined to change the law on what evidence can be used to prove medical expenses in cases involving personal injury.  The Court held that Tennessee law continues to allow plaintiffs to use full, undiscounted medical bills to prove their medical expenses instead of the discounted amounts paid by insurance companies.

In a case filed in Crockett County, Jean Dedmon sued for injuries she sustained in a car accident.  Mrs. Dedmon attached the bills from her hospital and her doctors to her legal complaint.

While Mrs. Dedmon’s case was pending, the Tennessee Supreme Court issued its opinion in another case, West v. Shelby County Healthcare Corporation.  West involved a hospital’s legal claim, called a lien, for the full amount of patients’ unpaid medical expenses.  The Court in West observed that most hospitals routinely send bills to all patients, regardless of whether the patients have insurance. These bills are far larger than the discounted payments the hospitals have contractually agreed to accept from insurance companies for those patients that do have insurance.  Based upon the specific provisions of the lien statute, the West Court held that the hospital’s lien was limited to the discounted amounts paid by the patients’ insurance companies. 

After the Supreme Court’s decision in West was announced, the defendants in Dedmon argued to the trial court that West had also changed the law in Tennessee for all cases involving personal injuries. After West, they said, personal injury plaintiffs who have insurance can no longer use the full medical bills to prove their medical expenses.  The trial court in Dedmon agreed.  Based on West, it limited the plaintiffs’ proof on medical expenses to the discounted payments the hospital and doctors had contractually agreed to accept from Mrs. Dedmon’s insurance company. The plaintiffs appealed to the Court of Appeals.

The Court of Appeals reversed.  It held that West does not apply in personal injury cases outside the context of the lien statute.  Consequently, even plaintiffs who have insurance can use full, undiscounted medical bills to prove medical expenses. However, it also said that defendants can use discounted insurance payments to prove that the undiscounted bills are not reasonable.

The Tennessee Supreme Court agreed that its holding in West was not intended to apply to all personal injury cases.  West only applies to hospital lien cases.

The defendants nevertheless urged the Court to adopt a new approach.  They argued that courts should value medical services the same way as a house or a car, by the “fair market value.”  The discounted amounts paid by insurance companies are basically the “fair market value” of medical services, they said, so medical expense damages should be limited to the discounted insurance amounts.

The Supreme Court disagreed.  It explained that Tennessee has always followed the so-called “collateral source rule,” which means that payments and other benefits received by plaintiffs that do not come from the defendant — in other words, benefits that are “collateral” to the defendant — may not be used to reduce the defendant’s liability to the plaintiff.  The rule also prevents defendants from telling juries about plaintiffs’ insurance and other such benefits because it might cause juries to think the plaintiffs have already been paid for their injuries. 

The Court observed that, in recent years, health care has become extremely complex.  Pricing for medical services is distorted by many things, including deep discounts demanded by insurance companies, laws that require hospitals to treat patients who cannot pay, and benefits like TennCare that pay a set amount for all treatment of a patient.  One result has been a widening of the gap between hospitals’ standard rates for uninsured patients and the discounted amounts hospitals accept from insurance companies.

The Court looked in depth at different ways other states have handled this issue.  Only a few states have either limited plaintiffs’ medical expense damages to the discounted insurance amounts or allowed defendants to use the insurance payments to reduce their liability.  Both approaches are contrary to the collateral source rule. Both approaches would end up treating plaintiffs with insurance differently from plaintiffs without insurance. Neither approach takes into account benefits other than private insurance, such as TennCare, charity, or gifts.  

Importantly, the Court said, “it is evident that medical expenses cannot be valued in the same way one would value a house or a car,” since “health care services are highly regulated and rates are skewed by countless factors, only one of which is insurance.”  There is no reason to think the discounted insurance rates are a more accurate way for courts to determine the value of medical services.    

The Court acknowledged that the collateral source rule is imperfect.  It said that the defendants had “ably pointed out the shortcomings of the collateral source rule in the current health care environment.  They are substantial and we do not minimize them.”  However, the defendants had not pointed “to a better alternative.”

After its thorough review, the Court declined to alter existing law in Tennessee. It held that the collateral source rule applies in this case. As a result, the plaintiffs may use evidence of Mrs. Dedmon’s full, undiscounted medical bills as proof of her reasonable medical expenses. It held that the defendants may not use the discounted rates paid by Mrs. Dedmon’s insurance company for any purpose.  The defendants are free to use any other evidence to show that the full medical expenses are not reasonable, so long as that evidence does not violate the collateral source rule.       

To read the unanimous opinion in Jean Dedmon v. Debbie Steelman et al., authored by Justice Holly Kirby, go to the opinions section of TNCourts.gov.

Criminal Conviction and Civil Defense

I am working on several cases currently where a party was criminally convicted and then we have filed a civil suit.  The criminal conviction precludes a defense to the civil liability on the case.  Below are some cases that illustrate this.

Criminal conviction precludes litigation of the same issue in a civil suit.   Jordan v. McKenna,  573 So.2d 1371, 1376 (Miss. 1990).  See also Hardin v. Aetna Casualty and Surety Company, 5 Cir.1967, 384 F.2d 718, cert. denied, 391 U.S. 971, 88 S.Ct. 2047, 20 L.Ed.2d 886; United States v. Fabric Garment Company, 2 Cir.1966, 366 F.2d 530; United States v. Gramling, 5 Cir.1950, 180 F.2d 498; Teitelbaum Furs, Inc. v. Dominion Insurance Company, 1962, 58 Cal.2d 601, 25 Cal.Rptr. 559, 375 P.2d 439; Taylor v. Taylor, 1962, 257 N.C. 130, 125 S.E.2d 373; In re Kravitz' Estate, 1965, 418 Pa. 319, 211 A.2d 443; Mineo v. Eureka Fire & Marine Insurance Company, 1956, 182 Pa.Super. 75, 125 A.2d 612; Eagle, Star and British Dominions Insurance Company v. Heller, 1927, 149 Va. 82, 140 S.E. 314, 57 A.L.R. 490; see Local 167 of International Bro'hood of Teamsters v. United States, 1934, 291 U.S. 293, 54 S.Ct. 396, 78 L.Ed. 804; Connecticut Fire Insurance Company v. Ferrara, 8 Cir.1960, 277 F.2d 388, cert. denied, 364 U.S. 903, 81 S.Ct. 231, 5 L.Ed.2d 195; Stagecrafters' Club, Inc. v. District of Columbia Division, D.D.C.1953, 111 F.Supp. 127.

See Breeland v. Security Insurance Co., 421 F.2d 918, 922 (5th Cir.1969) (summary judgment appropriate in civil case from opposing party been criminally convicted of the offense).   [A] conviction in a prior criminal case is conclusive, in a subsequent civil action, of the facts upon which the conviction was based.  United States Fidelity and Guaranty Co. v. Moore, 306 F.Supp. 1088. 1095 (N.D.Miss.1969):

Modification of Visitation Exchange Point

On Tuesday, the Mississippi Court of Appeals decided Smith v. Mull located here.  One of the interesting issues in the case was the modification of the dropoff point for visitation exchanges.

The Court explained that:

"When modification of visitation is at issue, the material change in circumstances test is not applicable because the court is not being asked to modify the permanent custody of the child.  To modify a visitation order, it must be shown that the prior decree for reasonable visitation is not working and that a modification is in the best interest of the child.  The chancellor has broad discretion to determine the specific times for visitation."

The Court ended up not modifying the visitation exchange since it was not shown to not be working and only benefited one parent.  This may be something to go over with clients who are contemplating moving.

Suit Against Yourself

On Thursday, the Mississippi Supreme Court decided Cyndy Howarth, Individually, Wife, Wrongful Death Beneficiary, and as Executrix of the Estate of Richard Howarth, Jr., Deceased, Juliet Howarth McDonald, Individually, Daughter, and as Wrongful Death Beneficiary of Richard Howarth, Jr., Deceased, and Cyndy Howarth, as Guardian, Natural Mother and Next Friend of Cynthia Howarth, a Minor and Wrongful Death Beneficiary of Richard Howarth, Jr., Deceased v. M & H Ventures, LLC.

In this case, the wrongful death beneficiaries sought to recover from M&H Ventures based on the negligent acts or omissions of the pilot, Howarth. But because Howarth was the sole member of M&H Ventures and it had no employees, M&H Ventures could act or fail to act only through Howarth.  The comparative negligence statute, Mississippi Code Section 11-7-15, provides:

In all actions hereafter brought for personal injuries, or where such injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property, or person having control over the property may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property.
Miss. Code Ann. § 11-7-15 (Rev. 2004) (emphasis added).

As such, the Mississippi Supreme Court ruled that essentially one could not sue himself for damages.