Electronic Signatures

 Recent case of interest.   An email is probably not a sufficient electronic signature.  

Parish Transp. LLC v. Jordan Carriers Inc.- Contracts – Enforceability – Electronic Signature – Statute of Frauds – Appellant appealed after the trial court granted summary judgment and found that email communication did not constitute a contract pursuant to Mississippi law and the statute of frauds. Because sending an email does not satisfy the requirements for an electronic signature under Miss. Code Ann. § 75-12-3(8), and because appellee’s email was ambiguous, an enforceable contract did not exist between the parties. Therefore, the trial court’s judgment was affirmed.

Reduction of Financial Obligation

With unemployment skyrocketing and wages being cut, examination of the factors for reducing divorce obligations is particularly relevant. In KROHN v. KROHN, NO. 2018-CA-01066-COA (Decided April 21, 2020) located here (https://courts.ms.gov/Images/Opinions/CO144202.pdf) the Court reversed a Chancellor for not reducing a man’s alimony obligation of $2,000 a month where he lost a job paying $218,000 per year and was able, after a few months, to get a new job paying only $84,000 per year.

The court quoted the following standards for review:

“When considering a party’s petition to modify or terminate an award of periodic alimony, a chancellor must first determine whether an unforeseeable and material change in circumstances occurred since entry of the initial divorce decree.” Easterling v. Easterling, 245 So. 3d 548, 551 (¶9) (Miss. Ct. App. 2018) (internal quotation mark omitted). “The change in circumstance must not be anticipated by the parties at the time of the original decree.” Id. (quoting Holcombe v. Holcombe, 813 So. 2d 700, 703 (¶11) (Miss. 2002)). “If no unforeseeable and material change has occurred, then a modification of the alimony award is improper.” Id. “Once a substantial unanticipated change has in fact occurred, the chancellor should then consider the Armstrong factors to determine the appropriate amount of alimony.” Id. at (¶10) (internal quotation mark omitted). “When analyzing these factors and ‘deciding whether to modify periodic alimony,’ chancellors should ‘compare the relative positions of the parties at the time of the request for modification in relation to their positions at the time of the divorce decree.’” Id. (quoting Steiner v. Steiner, 788 So. 2d 771, 776 (¶16) (Miss. 2001)). “Personal bills cannot be used as a factor to reduce support payments.” Hardin v. Grantham, 201 So. 3d 511, 515 (¶15) (Miss. Ct. App. 2016) (quoting Varner v. Varner, 666 So. 2d 493, 497 (Miss. 1995)).

The Armstrong factors that courts use to determine whether a spouse is entitled to alimony include: (1) the income and expenses of the parties; (2) the health and earning capacities of the parties; (3) the needs of each party; (4) the obligations and assets of each party; (5) the length of the marriage; (6) the presence or absence of minor children in the home, which may require that one or both of the parties either pay, or personally provide, child care; (7) the age of the parties; (8) the standard of living of the parties, both during the marriage and at the time of the support determination; (9) the tax consequences of the spousal order; (10) fault or misconduct; (11) wasteful dissipation of assets by either party; and (12) any other factor deemed by the court to be just and equitable in connection with the spousal support. Culumber v. Culumber, 261 So. 3d 1142, 1151 (¶29) (Miss. Ct. App. 2018) (quoting Larson v. Larson, 192 So. 3d 1137, 1142 (¶12) (Miss. Ct. App. 2016) (citing Armstrong v. Armstrong, 618 So. 2d 1278, 1280 (Miss. 1993))).

Trucking Claims and Punitive Damages

 Mississippi law is clear that direct negligence claims (of ordinary, not gross negligence) against an employer are subject to dismissal or summary judgment after a stipulation of vicarious liability.  However, as will be discussed below, punitive damages claims can proceed even after the ordinary negligence claims are dismissed upon a stipulation of vicarious liability. 

 A plaintiff's independent claims for punitive damages against an employer may proceed despite the employer's admission that its employee was acting in the course and scope of employment. Lee v. Harold David Story, Inc., CIVIL ACTION NO. 3:09CV696TSL-MTP at 8-9 (S.D. Miss. 2011) ; Dinger v. Am. Zurich Ins Co., 2014 WL 580889 at 3 (N.D. Miss. 2014). Evidence pertaining to a trucking companies’ independent gross negligence is not superfluous or redundant, as there is no means for a plaintiff to obtain punitive damages against the employer solely through claims against the employee.  Roberts v. Ecuanic Express, Inc., CIVIL ACTION No. 2:12 -CV-84-KS- MTP, at 3-5 (N.D. Miss. 2012).  Mississippi courts have conducted punitive damages analysis regarding negligent maintenance/retention/hiring on the part of a trucking company despite holding that admission of vicarious liability foreclosed direct negligence claims. Gaddis v. Hegler, 2011 U.S. Dist. LEXIS 59027 at 10-13 (S.D. Miss. 2011).  If the driver in a trucking case is found negligent, the trucking company can be liable for punitive damages on the independent or directly liability claims.  Riggio v. Pruneda, Cause No. 1:18CV218-LG-RHW at 12-13 (S.D. Miss. 2019). 

If derivative liability is established, "other avenues—like punitive damages claims—will provide a route for recovery in the event an employer's culpability exceeds that of its employee's imputed negligence." Dinger v. Am. Zurich Ins Co., at 3 (N.D. Miss. 2014) quoting Wright v. Watkins & Shepard Trucking, Inc., 972 F. Supp. 2d 1218, 1220 (D. Nev. 2013).  Courts have noted that allowing trucking companies to immunize themselves from liability by stipulating to vicarious liability, “overlooks the irreducible proposition that the doctrine of vicarious liability and the tort of negligent hiring and supervision address different conduct.”  Id. at 3.  Further, secondary sources in Mississippi do not address the exact scenario when an employer admits vicarious liability for the employee's actions, but state that "[a]n employer can always be held directly liable for his own negligence in hiring, retaining, or supervising, regardless of whether an employee or independent contractor is involved, since the employer is being held liable for his own negligence and not vicariously liable for the negligence of another." Id. quoting Mississippi Law of Torts § 7:23 (2d ed.).

 The above referenced cases illustrate that Mississippi courts have time and again allowed Plaintiffs to proceed with their punitive damages claims regarding retention/maintenance after the direct ordinary negligence claims are dismissed (due to a stipulation of vicarious liability).  This is because without the punitive damages claims, Plaintiffs would not be able to hold a trucking company liable for negligence in hiring and retaining a dangerous driver or putting a dangerous vehicle on the road.  Should the evidence rise to the level of gross negligence in hiring and maintenance, the law allows for damages that exceed the ordinary damages attributable to the driver’s negligence.

 

Forgotten items in Divorce

Below is a list of several often forgotten items in divorce proceedings.    

• garage door openers
• security gate remote controls
• extra keys to car and house
• security codes
• hotel, credit card and airline points
• utility and other deposits
• tax and insurance escrows
• car license plate credits
• overdrafts on joint checking accounts
• dates to carry through insurance
• attorney’s fees paid with joint funds
• Attorney’s fees trust fund balances
• Income tax refunds