Same-Sex Adoption Ban Challenged

Mississippi currently still bans same-sex adoption.  Suit has been filed to challenge this.  A newspaper article discussing the challenge is located here.  According to the article, Mississippi is the only state in the country left with this ban still in place.  In light of recent United States Supreme Court rulings, I doubt the law stands. 

Free CLE

The Desoto County Bar is hosting a free CLE on August 14, 2015 at the Hernando public library from 10:00 A.M. until 1:00 P.M.  If anyone is interested in going, email me and will put you on the registration list.  The topics will be circuit and chancery court practice. 

Personal Injury Awards and Divorce

Divorce and personal injury awards often overlap for some strange reason. This was the issue in  Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994). The issue then arises whether a particular spouse’s personal injury award, settlement money, or any remainder thereof constitutes marital property subject to equitable distribution.   Following the trend in Georgia and North Carolina courts, in 1999, the Mississippi Supreme Court adopted a specific approach–called the “analytic approach”–in assessing whether a personal injury award, or whatever sum remains outstanding at the time of divorce, constitutes separate or marital property. Tramel v. Tramel, 740 So. 2d 286, 290 (Miss. 1999). Under the analytic approach, Mississippi courts must delineate between certain “detailed portions” that make-up a given personal injury award or settlement when classifying property. Id. As the Tramel court declared:

(1) that portion of the proceeds award allocable to compensation to the initially injured spouse for pain, suffering, and disfigurement should be awarded in its entirety to the injured spouse;
(2) that portion of the proceeds allocable to lost wages, lost earnings capacity, and medical and hospital expenses, to the extent those apply to the time period of the marriage, are marital assets and are to be divided according to equitable distribution principles; and (3) that portion of the proceeds allocable to loss of consortium should be awarded in its entirety to the spouse who suffered that loss.

Id. at 291. Thus, the amount of a given personal injury award designated to account for pain, suffering, or disfigurement incurred by the injured spouse and any award for post-divorce wages and medical expenses exclusively constitute separate property of the injured spouse that is not subject to property division. Id. Likewise, any award for loss of consortium (loss of companionship and loss of love and affection) constitutes the separate property of the non-injured spouse, which is not subject to property division; while on the other hand, an awarded amount for lost wages and medical expenses during the marriage constitutes marital property subject to property division. Id.

It is important to note that the analytic approach is not so easy to apply in practice because some personal injury awards, and especially many financial settlements, may allocate a given amount for some other reason that does not fit into one of the “detailed portions” or categories outlined in Tramel. Thus, a personal injury award or settlement will not always neatly fit into one of the Tramel categories. In these events, the chancery courts will rely on their broad discretion in dividing the marital estate on a case-by-case basis.

Discovery of Attorney's Fees

I have been looking at the issue on the discovery of attorney's fees in cases for a while.  From prior experiences and review of the caselaw, if an individual pleads a request for recovery of attorney's fees, this makes the hourly rate, amount of time, and various other things discoverable.  However, I think there is still a pretty good argument that portions of the itemized bill may not be discoverable depending on how detailed it is.  If the bill deals with strategy sessions and goes into it specifically, probably not discoverable.  If the bill does not, probably is.  This is one area where less detail may be better for discovery issues. 

Chancery Approval

Yesterday, the Mississippi Supreme Court decided In the Matter of the Guardianship of O.D. located here.  The case dealt with the chancery court approving a minor's settlement.  An insurer removed a case to federal court and later the case was remanded once it was determined there was no basis for removal.  The chancery court then awarded $18,000.00 in sanctions for the removal.  This was ultimately affirmed.  The court reasoned that two decades of caseload required chancery approval and that the removal was for the purpose of delay. 

Moneyball

I was reading an article yesterday dealing with attorneys wanting to create a "Moneyball" type database to record wins, losses, and judge tendencies in cases.  Frankly, I think a lot of attorneys would love access to that type information and be willing to pay for it.  I have used similar data before to craft arguments based on a judge's prior decisions. 

Proximate Cause

On July 23, 2015 Circuit Court Judge David Strong entered a $635,325 judgment in McCrory v. Lincoln County School District. The accident happened in 2011. The decedent, Tammy Jo Brown was traveling on a road in Wesson when she collided with a Lincoln County school bus traveling in the opposite direction. The school bus was two feet over the center line at the time of the collision. Brown died at the scene.  Brown was speeding: 68 mph in a 20 mph zone before the collision and 52 mph at the time of the collision. The school bus was also speeding: 35 mph. The bus driver saw the car approaching from two hills away, yet didn’t get into her own lane.   The Court apportioned 90% fault to the bus driver and 10% fault to Brown. The Court assessed damages as $205,917 in economic damages and $500,000 in loss of society and companionship.  Due to Brown’s 10% fault, the damages were reduced and judgment entered in the amount of $635,325.  This case illustrates why proximate cause is so important in a case.  The trial court found that the acts of the bus driver were the reason the accident occurred.  The order on the case is located here.