STATUTE OF LIMITATIONS
- Personal Property3 YearsM.C.A. § 15-1-49
- Personal Injury/Death3 YearsM.C.A. § 15-1-49
- Personal Injury/Medical Malpractice2 YearsM.C.A. § 15-1-36
- Breach of Contract/Written6 YearsM.C.A. § 75-2-725
- Breach of Contract/Oral3 YearsM.C.A. § 15-1-29
- Breach of Contract/Sale of Goods6 YearsM.C.A. § 75-2-725
- Statute of Repose/ProductsN/AN/A
- Statute of Repose/Real Property6 YearsM.C.A. § 15-1-41*
- Breach of Warranty6 YearsM.C.A. § 75-2-725
- Workers’ Compensation3 YearsM.C.A. § 71-3-71
- Strict Product Liability3 YearsM.C.A. § 15-1-49
Statute of Limitations Exceptions
*6 Years from written acceptance or actual occupancy for design or construction of improvement to real property. M.C.A. § 15-1-41.
Contributory Negligence/Comparative Fault
Pure Comparative Fault: Damaged parties can recover even if 99% at fault. Plaintiff’s right to damages may be reduced by his own liability, but he will not be barred from recovering. M.C.A. § 11-7-15.
Med Pay/PIP Subrogation
Med Pay: Yes. Tucker v. Aetna Cas. & Sur. Co., 801 F.2d 728 (5th Cir. 1986). Policy may provide for reimbursement. M.C.A. § 63-15-43(8). Med Pay carrier may need to obtain an assignment from insured before it can proceed against third party because a Med Pay carrier may not recover directly from a tortfeasor, under a subrogation clause in its policy, when, (1) insurer did not secure an assignment from its insured for the amounts paid, (2) insured filed suit against tortfeasor, (3) insurer notified the tortfeasor of its claim of subrogation after suit was filed, and (4) the tortfeasor settled with insured after notice of the subrogation claim. Preferred Risk Mut. Ins. Co. v. Courtney, 393 So.2d 1328 (Miss. 1981).
The three (3) year personal injury statute of limitations runs from date of insured’s accident. M.C.A. § 15-1-49 (1990).
PIP: Coverage not applicable.
Automobile and Property: No applicable statute, Administrative Code provision or case law exists.
Made Whole Doctrine
The Made Whole Doctrine is the general principle that an insurer is not entitled to equitable subrogation until the insured has been fully compensated. Hare v. State, 733 So.2d 277 (Miss. 1999). In Hare, the court adopted the “Made Whole” Rule and held that: “It is not to be overridden by contract language, because the intent of subrogation is to prevent a double recovery by the insured, especially here as expressly stated in the State Health Plan. Until the insured has been fully compensated, there cannot be a double recovery. Otherwise, to allow the literal language of an insurance contract to destroy an insured’s equitable right to subrogation ignores the fact that this type of contract is realistically a unilateral contract of insurance and overlooks the insured’s total lack of bargaining power in negotiating the terms of these types of agreements.” United Services Auto. Ass’n v. Stewart, 919 So.2d 24 (Miss. 2005).
The Made Whole Doctrine requires that a plaintiff be made whole, and to recover all his damages before an insurer is allowed to enforce its contractual right to subrogation. Federated Mut. Ins. Co. v. McNeal, 943 So.2d 658 (Miss. 2006). Unfortunately, Mississippi doesn’t differentiate between equitable subrogation and contractual subrogation with regard to the application of equitable subrogation defenses, such as the Made Whole Doctrine. Hare, supra. Therefore, an insurer will not be able to subrogate until its insured has been made whole. Id.
When the insured’s damages have been determined by a jury in the underlying tort case, the jury’s assessment of damages determines the amount of damages recoverable by the insured, and the insured is both made whole as a matter of law and collaterally estopped from arguing that he has not been made whole. Armstrong v. Mississippi Farm Bureau Cas. Ins. Co., 2011 WL 71453 (Miss. App. 2011). The Made Whole Doctrine does not apply to UM/UIM subrogation. Stewart, supra.
The Mississippi Supreme Court has issued an opinion in a case involving an ERISA-covered Plan. Yerby v. United Healthcare Ins. Co., 846 So.2d 179 (Miss. 2002). In that case, Mississippi again confirmed that the Made Whole Doctrine was adopted by Mississippi in the Hare case, even though that case dealt with a state-sponsored insurance Plan and not one operating under the constraints of ERISA. Id. Unlike some states, Mississippi does not allow the terms of a contract to nullify the Made Whole Doctrine. Hare, supra.
The Mississippi Supreme Court has adopted the Made Whole Doctrine rejecting an insurer’s argument that it was entitled to reimbursement of “all sums recovered … by settlement” for hospital, medical or related services under the terms of the insurance plan. Id. The Court explained that allowing the literal language of an insurance contract to destroy an insured’s equitable rights “ignores the fact that this type of contract is realistically a unilateral contract of insurance and overlooks the insured’s total lack of bargaining power in negotiating the terms of these types of agreements.”
Economic Loss Doctrine
Majority Rule. As of 1999, Mississippi adheres to the ELD. State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 736 So.2d 384 (Miss. App. 1999). Mississippi has a statute which governs product liability suits. Miss. Code Ann. § 11-1-63. The statute exempts “commercial damage to the product itself” from recoverable damages. Any such damages must be recovered under warranty or breach of contract.
There do not appear to be any restrictions on the ability of a landlord’s insurer to pursue the tenant for subrogation as a result of damages paid by the insurer which were caused by the tenant. Paramount Ins. Co. v. Parker, 112 So.2d 560 (Miss. 1959).
Tort of Spoliation: In Dowdle Butane Gas Co. v. Moore, 831 So.2d 1124, 1135 (Miss. 2002), the Mississippi Supreme Court refused to “recognize a separate tort for intentional spoliation of evidence against both first and third-party spoliators.” In Richardson v. Sara Lee Corp., 847 So.2d 821, 824 (Miss. 2003), the Court likewise refused to recognize a separate tort for negligent spoliation of evidence.
Adverse Inference/Presumption: In Stahl v. Wal-Mart Stores, Inc., 47 F.Supp.2d 783, 787 n. 3 (S.D. Miss. 1998), the court held that “in the absence of bad faith – i.e., evidence of culpability on the part of the spoliator – then there can be no adverse influence or presumption…even when there is prejudice to the innocent party.” The Court further held “it is a general rule that the intentional spoliation or destruction of evidence relevant to a case raises a presumption, or, more properly, an inference, that this evidence would have been unfavorable to the case of the spoliator.” Tolbert v. State, 511 So.2d 1368, 1372-73 (Miss. 1987), quoting Washington v. State, 478 So.2d 1028, 1032-33 (Miss. 1985). “Such a presumption or inference arises, however, only when the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth and it does not rise where the destruction was a matter of routine with no fraudulent intent.” Id.
Sanctions: Spoliation remedies include discovery sanctions, criminal penalties or disciplinary actions against attorneys who participate in spoliation. Dowdle, supra. Mississippi recognizes a refutable “negative” or adverse inference against a spoliator. Thomas v. Isle of Capri Casino, 781 So.2d 125 (Miss. 2001).
Property Damage. Liability imposed on parents when child maliciously or willfully damages property. M.C.A. § 93-13-2.
The limit of liability is $5,000.00 plus court costs. Child must be between 10 and 18.
Vandalism. Liability imposed on parents when child willfully defaces or damages sign, device, signal, bridge, underpass, or overpass. M.C.A. § 97-15-1.
The limit of liability is $200.00. Child must be under 21-years-old.
Operating Vehicle. Liability imposed on parents who signs child’s driver’s application and child negligently or willfully engages in misconduct. M.C.A. § 63-1-25.
There are no limits of liability. Child must be under 17-years-old.
Modified Joint and Several Liability. Several liability, unless defendants act in concert – then joint and several liability. M.C.A. § 85-5-7; J.B. Hunt Transport v. Forrest General Hosp., 34 So.3d 1171 (Miss. 2010).
Joint and several liability abolished in 2007. Today, contribution actions allowed for those whose liability is joint and several because they took part in a common plan to commit a tortious act. M.C.A. § 85-5-7 (1989); DePriest v. Barber, 798 So.2d 456 (Miss. 2001). Three (3) year statute of limitation from date of payment. M.C.A. § 15-1-49 (this is unclear under Mississippi law – it is a catch-all statute).
Suspension of Drivers' Licenses
Administrative Suspension: Within sixty (60) days after receipt of a motor vehicle accident report, the Department will suspend the driver’s license of each operator and registration of each owner of a motor vehicle involved in the accident, unless the driver or owner deposits security and proof of financial responsibility. M.C.A. § 63-15-11(2). Suspension will remain effective until uninsured driver deposits adequate security, proof of adjudication of liability, or one (1) year elapses and no action for damages is filed. M.C.A. § 63-15-15.
Judgment: Upon receipt of judgment, the Department will immediately suspend the driver’s license of the judgment debtor. M.C.A. § 63-15-27. Suspension will be lifted once proof of satisfaction of judgment or an agreement for payment of the judgment in installments is filed. M.C.A. § 63-15-29.
Contact Information: State of Mississippi, Motor Vehicle Commission, P.O. Box 16873, 1755 Lelia Drive, Ste. 200, Jackson, MS 39216, (601) 987-3995, http://www.mmvc.ms.gov/SitePages/Home.aspx.
Prohibits Intermediate Indemnity. Applies to Construction Contracts or Agreements. Miss. Code § 31-5-41.
Not applicable to construction bonds or insurance contracts or agreements.
Diminution of Value
First Party: Mississippi courts have held that if, despite repairs, there remains a loss in actual market value, that deficiency is added to the cost of the repairs; and that the measure of loss to an auto damaged, but not destroyed by a collision, is the difference between its reasonable market value immediately prior to the collision and its reasonable market value after all reasonable and feasible repairs have been made. Potomac Ins. Co. v. Wilkinson, 57 So.2d 158 (Miss. 1952); Calvert Fire Ins. Co. v. Newman, 124 So.2d 686 (Miss. 1960).
Third Party: Cost of repair of damaged vehicle may be recovered in third-party claim, as well as remaining diminution in pre-tort value after proposed repairs, but in no event, may cost of repair be recovered to extent it exceeds total diminution in pre-tort value, in case of one holding personalty for sale rather than for personal use. Ishee v. Dukes Ford Co., 380 So.2d 760 (Miss. 1980). Recovery for residual diminution in value allowed, but doubtful that an owner’s testimony could constitute sufficient proof. Thomas v. Global Boat Builders & Repairmen, Inc., 482 So.2d 1112 (Miss. 1986). But see, Regency Nissan, Inc. v. Jenkins, 678 So.2d 95 (Miss. 1995), as modified on reh’g (Aug. 22, 1996) (suggesting that owner should be able to testify to property value).
One-Party Consent: An individual has the right to record or disclose the contents of an oral, telephonic, or other communication that they are a party to or if one of the parties has given prior consent to the recording of said communications. Miss. Code. Ann. § 41-29-531(e).
Mississippi statute allows for a “victim” to recover restitution from a liable criminal defendant. M.C.A. § 99‐37‐3. For purposes of an insurer recovering restitution payments, an insurance company may qualify as a “victim” according to Mississippi case law. In the Interest of B.D. v. State, 720 So.2d 476, 482 (Miss. 1998).
Health and Disability Insurance
Statute of Limitations: 3 Years. M.C.A. § 15-1-49. Medical Malpractice – 2 Years. M.C.A. § 15-1-36.
Subrogation of Medical and Disability Benefits are allowed. Hare v. State, 733 So.2d 277 (Miss. 1999); Preferred Risk Mut. Ins. Co. v. Courtney, 393 So.2d 1328, 1329 (Miss. 1981).
Funeral Procession Traffic Laws
There are no state laws governing funeral processions.
Statute of Limitations: 3 Years. M.C.A. § 71-3-71.
Can Carrier Sue Third Party Directly: Yes, with reasonable notice.
Intervene: The carrier must intervene unless there’s reimbursement agreement or the carrier files suit.
Recovery from UM/UIM Benefits: No.
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: (1) Fees, Expenses; (2) Carrier Reimbursed Fully – No Fees; and (3) Balance to Plaintiff.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: No.
Future Credit: Yes.
Auto No-Fault: No.
Dog Bite Laws
“One-Bite” Rule. Dog owner is only liable if they have knowledge of their dog’s vicious propensities. Poy v. Grayson, 273 So.2d 491 (Miss. 1973).
Employee Leasing Laws
The temporary employment agency and the client company are both considered employers and immune from third-party actions under the Exclusive Remedy Rule. Northern Electric Co. v. Phillips, 660 So.2d 1278 (Miss. 1995).
Condominium Waiver of Subrogation Laws
Mississippi condo law does not address insurance requirements or waivers of subrogation. M.C.A. § 89-9-1.
Automobile Total Loss Thresholds
Total Loss Formula (See HERE for definition).
Vehicle cannot be more than ten-years-old, have a value of less than $1,500, or damage that requires replacement of five or few minor components. Also, applies to vehicle which requires replacement of more than five minor component parts according to insurer. M.C.A. § 63-21-33.
Sudden Medical Emergencies While Driving
Loss of Consciousness Defense. The driver of an automobile is not ordinarily chargeable with negligence when he becomes suddenly stricken by a fainting spell or loses consciousness from an unforeseen cause and is unable to control his car. Warren v. Pinnix, 241 So.2d 662 (Miss. 1970).
Because of the “easy simulation of fainting and the potential for possible frauds” a defendant should present all of the evidence on this issue which is known to him, including medical testimony, if any. Keener v. Trippe, 222 So.2d 685 (Miss. 1969).
State Sovereign Immunity And Tort Liability
Tort Claims Act: Mississippi Tort Claims Act. M.C.A. §§ 11-46-1 through 11-46-23 (1984).
Notice Deadlines: Any person having a claim with the State shall proceed as he might in any action at law, except that notice shall be provided at least 90 days before instituting suit with the chief executive officer of the governmental entity and commenced within one year after the date of the tort. M.C.A. § 11-46-11.
Claims/Actions Allowed: The immunity of the State and its political subdivisions from claims arising out of the torts of such governmental entities and the torts of their employees while acting within the scope of their employment is hereby waived. M.C.A. § 11-46-5.
Comments/Exceptions: The State and its employees preserve their immunity for claims caused by:
(1) a legislative or judicial action or inaction;
(2) an act or omission of a State employee exercising due care in the execution of a statute or rule; and
(3) discretionary function.
See M.C.A. § 11-46-9 for other exceptions.
Immunity will not be granted to a State employee when they negligently operate a motor vehicle outside of a discretionary function. Mixon v. Mississippi Dep’t of Transp., 183 So.3d 90 (Miss. Ct. App. 2015).
Damage Caps: The State’s liability shall not exceed $500,000 for all claims arising out of a single occurrence. The State will not pay punitive damages. M.C.A. § 11-46-15.
Recovery of Sales Tax After Vehicle Total Loss
First-Party Claims: The insurer must pay sales taxes, title fees, or license fees unless the policy unambiguously excludes this recovery for total loss claims. MS Bulletin 2007-4.
Third-Party Claims: Jay Evey (Mississippi Department of Insurance) states that MS Bulletin 2007-4 does extend to third parties based on public policy of making the injured party whole.
No applicable statute, case law, or regulation governing recovery of sales tax.
Damage to Property Without Market Value
Service Value: “Instead of being a utility pole that was damaged and broken, suppose it had been a four-year-old utility truck. Suppose it was necessary to replace a damaged fender with a new fender. Should the tortfeasor be allowed to submit to the jury the taking of depreciation on the four-year-old fender? We think not. The fender was an integral part of the truck, and the new fender added nothing to the overall value of the truck.” Mississippi Power & Light Co. v. Tillman, 291 So.2d 736 (Miss.1974).
Intrinsic Value: “Where the article lost has no market value, the rule of damages seems then to be its value to the plaintiff; and in ascertaining this value inquiry may be made into constituent elements of the cost to the plaintiff in producing it.” Austin v. Millspaugh & Co., 43 So. 305 (Miss. 1907).
Sentimental Value: “Nor was there any as to what it would cost to replace or restore them, nor any of any kind, except that she was allowed to answer as to what they were worth to her, from the associations connected with them,-they being family portraits; their purely sentimental value, in other words. This is not competent.” Louisville & N.R. Co. v. Stewart, 29 So. 394 (Miss. 1901).
Municipal/County/Local Governmental Immunity and Tort Liability
Mississippi Tort Claims Act: M.C.A. §§ 11-46-1 through 11-46-23 (1984). “Governmental entity” includes state and its political subdivisions (county, municipality, school district, etc.). M.C.A. § 11-46-1(g)(i).
Notice Deadlines: Notice of claim must be filed with chief executive officer of the governmental entity at least ninety (90) days before instituting suit. M.C.A. § 11-46-11(1). Suit must be commenced within one (1) year after the date of the tort. M.C.A. § 11-46-11(3). Bodily injury and property claims must be brought within three (3) years after injury discovered. M.C.A. § 11-15-49.
Claims/Actions Allowed: The immunity of governmental entity from claims arising out of ministerial acts is waived. M.C.A. § 11-46-5. “Ministerial act” is one which has been imposed by law and is required at a time and in a manner or upon conditions which are specifically designated, the duty to perform under the conditions specified not being dependent upon judgment or discretion. M.C.A. § 11-46-9(1)(d).
Comments/Exceptions: Governmental entity and its employees preserve their immunity for claims caused by: (1) a legislative or judicial action or inaction;(2) an act or omission of a State employee exercising due care in the execution of a statute or rule; (3) police/fire protection (unless reckless); and (4) discretionary function (official required to use judgment or discretion). See M.C.A. § 11-46-9 for other exceptions. Immunity will not be granted to a State employee when they negligently operate a motor vehicle outside of a discretionary function. Mixon v. Mississippi Dep’t of Transp., 183 So.3d 90 (Miss. Ct. App. 2015).
Damage Caps: The State’s liability shall not exceed $500,000 for all claims arising out of a single occurrence. The State will not pay punitive damages. M.C.A. § 11-46-15. The limits of insurance purchased by the entity may be higher than those provided for in the statute. M.C.A. § 11-46-16.
Laws Regarding using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: No driver may operate a motor vehicle while reading, writing, or sending a text message in a hand-held manner, although voice activated or hands-free is allowed. M.C.A. § 63-33-1(2)
No applicable law on hand-held cell phone use except for texting.
Other Prohibitions: No Applicable Laws.
Comments: No county, municipality, or other political subdivision may enact an ordinance restricting cell phone use in motor vehicles until state authorizes such a law. M.C.A. § 63-3-212.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute is silent on “illegal aliens” and “unlawfully employed aliens.” It broadly uses the phrase of “any person” employed either “lawfully or unlawfully.” Miss. Code Ann. § 71-3-3(e).
Case Law: Undecided.
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: Miss. Transp. Comm’n v. McLemore, 863 So.2d 31 (Miss. 2003); Miss R. Evid. 702.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Contributory negligence of driver is not imputable to wife/passenger and she could recover from the negligent tortfeasor and from such tortfeasor’s employer for injuries which she sustained in collision. McCorkle v. United Gas Pipe Line Co., 175 So.2d 480 (Miss. 1965).
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
No Family Purpose Doctrine. Smith v. Dauber, 155 Miss. 694, 125 So. 102, 103 (1929); Prewitt v. Walker, 231 Miss. 860, 97 So.2d 514, 516 (1957); Warren ex rel. Warren v. Glascoe, 852 So.2d 634, 638 (Miss. Ct. App. 2003), aff’d, 880 So.2d 1034 (Miss. 2004).
Sponsor Liability for Minor’s Driving: Miss. Code. Ann. § 63-1-25: Negligence or willful misconduct of a minor under 17 while driving a motor vehicle shall be imputed to the person who signs the minor’s driver’s application.
Product Liability Law
Statute of Limitations/Repose: 3 years for personal injury and wrongful death. M.C.A. § 15-1-49. Discovery Rule applies.
Liability Standards: Negligence, Strict Liability, Warranty.
Fault Allocations: Pure Comparative. M.C.A. § 11-7-15.
Non-Economic Caps/Limits On Actual Damages: Yes.
Punitive Y/N and Limits: Yes (Limits).
Heeding Presumption?: Yes. Thomas v. Hoffman–La-Roche, Inc., 949 F.2d 806 (5th Cir. 1992).
Innocent Seller Statute: Yes. M.C.A. § 11-1-63(h).
Joint and Several Liability: No. M.C.A. § 85-5-7.
Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; Inherently Unsafe Products; State of the Art; Presumption; Alcohol/Drugs; Sophisticated User.
Restatement 2nd or 3rd?: Restatement 3rd
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: M.C.A. § 63-3-909.
Common Law Rule: Where a thief acts unlawfully and steals the vehicle, the thief’s negligent and unlawful driving of the vehicle after the theft constitutes an intervening act which supersedes the liability of the negligent owner of the vehicle. Permenter v. Milner Chevrolet Co., 91 So.2d 243 (Miss. 1956); S. Heritage Ins. Co. v. C.E. Frazier Const. Co., 809 So.2d 668 (Miss. 2002).
An insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered. Hutson v. State Farm Fire & Cas. Co., 2007 WL 1121364 (Miss. Ct. App. 2007). The Mississippi courts have recognized one exception where if two parties are insured under the same policy, and one intentionally commits a tort against the other, the tortfeasor is excluded from the policy and subrogation may proceed, while the victim maintains the status of an insured under the policy. Id. In Hutson, a homeowner property insurer paid a property claim of a co-insured wife for property damage caused by fire that her co-insured husband admitted to setting intentionally. The Court of Appeals found that the property insurer was entitled to subrogate against the husband in spite of the usual ASR in this context. The court found that the husband’s intentional act foreclosed any duty the insurer may have had to him, and as such, in the context of the relationship between the insurer and the innocent co-insured wife, the husband is treated as merely a third-party tortfeasor.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: M.C.A. § 63-27-1; M.C.A. § 63-27-3; M.C.A. § 63-27-1-5; M.C.A. § 63-27-7.
Summary: All non-OEM parts must be labeled with a logo, brand name, or identification number that is visible after installation if practical. The use of non-OEM parts must be disclosed in the estimate and the same disclosure must inform the insured that the part’s manufacturer warrants the parts, not the auto manufacturer.