Automobile Insurance SubrogationAutomobile Total Loss ThresholdsDeductible ReimbursementDiminution of ValueFirst Come, First Served: Subrogating Multiple Claims in Excess of Policy LimitsFuneral Procession Traffic LawsImputing Contributory Negligence of Driver to Vehicle OwnerLaws Regarding using Cell Phones/Headphones/Texting While DrivingLoss Of UseMed Pay/PIP SubrogationOwner Liability For Stolen VehiclesPayment of Sales Tax After Vehicle Total LossPedestrian and Crosswalk LawsRental Car Company Physical Damage and Loss of Use ClaimsRental Car Company’s Liability Insurance Primary or ExcessSlower Traffic Keep RightSudden Medical Emergencies While DrivingSuspension of Drivers’ LicensesUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Federal , State, and Local Governmental EntitiesMunicipal/County/Local Governmental Immunity and Tort LiabilityState Sovereign Immunity And Tort Liability
General Tort Laws/StatutesAnti-Indemnity StatutesContribution ActionsContributory Negligence/Comparative FaultDog Bite LawsEconomic Loss DoctrineParental ResponsibilitySpoliationStatute of LimitationsStatute of Limitations Exceptions
Health Insurance SubrogationHealth and Disability Insurance
InvestigationAdmissibility of Expert TestimonyPre-Suit Disclosure of Liability Policy Limits in Third-Party ClaimsRecording Conversations
Product Liability SubrogationProduct Liability Law
Property Subrogation“Matching Regulations” And Laws Affecting Homeowners Property ClaimsCondominium/Co-Op Waiver of Subrogation LawsDamage to Property Without Market ValueGeneral Contractor Overhead And Profit Payments In First-Party ACV Property Damage ClaimsLandlord/Tenant Subrogation
Subrogation GenerallyAnti-Subrogation RuleCriminal RestitutionMade Whole DoctrineMedical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Workers’ CompensationEmployee Leasing LawsHospital Lien LawsOCIP/CCIP Subrogation In Workers’ Compensation Construction CasesRecovery Of Increased Workers’ Compensation Premiums By EmployerWhich Workers’ Compensation “Benefits” Can Be Subrogated?Workers’ Compensation Subrogation Waiver EndorsementsWorkers’ CompensationWorkers’ Compensation Claims by Undocumented Employees
Automobile Insurance Subrogation
Automobile Total Loss Thresholds
Total Loss Formula (TLF)..
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.
Automobile and Property: No applicable statute, Administrative Code provision or case law exists.
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).
First Come, First Served: Subrogating Multiple Claims in Excess of Policy Limits
Mississippi encourages use of an interpleader for liability insurers faced with multiple claims. Miss. R. Civ. P. 22. Rule 22, governing interpleaders, provides as follows:
Rule 22. Interpleader.
(a) Plaintiff or Defendant. Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of crossclaim or counterclaim. The provisions of this rule supplement and do not in any way limit the joinder of parties permitted in Rule 20.
(b) Release from Liability; Deposit or Delivery. Any party seeking interpleader, as provided in subdivision (a) of this rule, may deposit with the court the amount claimed, or deliver to the court or as otherwise directed by the court, the property claimed, and the court may thereupon order such party discharged from liability as to such claims and the action shall continue as between the claimants of such money or property. Id.
The comments to Rule 22 of the Mississippi Rules of Civil Procedure describe that interpleader can be used to protect the claimants by bringing them together in one action and resolving a dispute where there are multiple claimants and limited funds to go around. The comments further confirm the difficulties a race to judgment poses for the insurer, and the unfairness which may result to some claimants. Miss. R. Civ. P. 22 (comments). Mississippi courts have indicated that the filing of an interpleader may insulate a liability carrier from bad faith. Allred v. Yarborough, 843 So.2d 727 (Miss. 2003).
One 5th Circuit decision indicates that an insurer need not withhold UM benefits from one insured in order to save something for another insured who has refrained from presenting a claim. Moore v. United Services Auto. Ass’n, 808 F.2d 1147 (5th Cir. 1987).
Funeral Procession Traffic Laws
There are no state laws governing funeral processions.
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.
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.
Loss Of Use
Loss of Use: Yes. Loss of use of a repairable vehicle is measured by the reasonable rental value of a similar unit. National Dairy Products Corp. v. Jumper, 130 So.2d 922 (Miss. 1961). Reasonable value of replacement vehicle may be recovered even though no other vehicle was actually obtained. Pelican Trucking Co. v. Rossetti, 170 So.2d 573 (Miss. 1965). No caselaw expressly disallowing recovery for loss of use on a total loss claim. Accordingly, there is a strong argument that such a claim can be sustained, especially with favorable policy language.
Lost Profits: Yes. While damages for loss of use of a vehicle should normally be measured by the cost of hiring another vehicle, if the owner can show that no substitute vehicle was available, loss of profits may be recovered as long as there is sufficient evidence to measure the lost profits. National Dairy Products Corp. v Jumper, supra.
Comments: One whose business vehicle has been damaged solely by reason of negligence of another is allowed to recover loss of use for period reasonably required to repair it. Dean Truck Line, Inc. v. Greyhound Corp., 186 So.2d 240 (Miss. 1966).
Med Pay/PIP Subrogation
Med Pay: 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).
PIP: Coverage not applicable.
Made Whole: Doctrine applies. Cannot override with Plan language. Hare v. State of Miss., 733 So.2d 277 (Miss. 1999).
Statute of Limitations: The three (3) year personal injury statute of limitations runs from date of insured’s accident. M.C.A. § 15-1-49 (1990).
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).
Payment 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.
Pedestrian and Crosswalk Laws
M.C.A. § 63-3-1103: If there are no traffic control signals, vehicles must yield to pedestrians in crosswalk.
M.C.A. § 63-3-1105: Pedestrians must yield to vehicles when crossing outside crosswalk, must use crosswalk at intersections with traffic control devices.
Summary: It is the duty of a driver to not just act as a reasonable person when avoiding a collision but to act with the standard of care a reasonably prudent and capable driver would use under the circumstances. Williams v. Moses, 234 Miss. 453, 106 So.2d 45 (Miss. 1958). Violation of safety statute represents negligence per se only where plaintiff is member of class sought to be protected by statute and resultant harm is type statute seeks to prevent. Haver v. Hinson, 385 So.2d 605 (Miss. 1980).
Rental Car Company Physical Damage and Loss of Use Claims
Recovery From Renter: Recovery of physical damage and loss of use are not prohibited or otherwise regulated. Terms of rental agreement control. Collision Damage Waivers not regulated.
Recovery From Third-Party: Case law allows for owner of commercial vehicle (commercial spray foam rig). Nothing specifically for rental cars. One whose commercial vehicle has been damaged solely from negligence of another may recover loss of use for a period of time reasonably required to repair it. Dean Truck Line, Inc. v. Greyhound Corp., 186 So.2d 240 (Miss. 1966). While damages for loss of use of a commercial vehicle should normally be measured by the cost of hiring another vehicle, where the owner can show that no substitute vehicle was available for rent, loss of profits is the proper element of damages to be recovered. National Dairy Products Corp. v. Jumper, 130 So.2d 922 (Miss. 1961). The reasonable value of a replacement vehicle may be recovered even though no other vehicle was actually hired. Pelican Trucking Company v. Rossetti, 170 So.2d 573 (Miss. 1965).
Rental Car Company’s Liability Insurance Primary or Excess
Summary: No case or statutory law dealing specifically with car rental companies. Terms of rental agreement and renter’s liability policy should be compared to determine which is primary. Although State Farm Mut. Auto. Ins. Co. v. Universal Underwriters Ins. Co., 797 So.2d 981 (Miss. 2001) said that a customer driving an auto dealer’s car during repair work was not an insured under the liability coverage of the dealer’s garage policy, this case appears to have been superseded by statute in 2004 when Mississippi passed § 63-15-4 and first made insurance on motor vehicles mandatory. Section 63-15-4(2) provides that “insured parties shall be responsible for maintaining the insurance on each motor vehicle.” This provision vests the responsibility of providing insurance on the person with an insurable interest in the property. The general rule that anyone who derives a benefit from property or would suffer loss from its destruction has an insurable interest in the property has been applied to motor vehicle insurance. Universal Underwriters Gr. v. State Farm, 931 So.2d 617 (Miss. App. 2006). This would seem to support the argument that the car rental company’s insurance should be primary.
Slower Traffic Keep Right
Statute: M.C.A. § 63-3-601 and M.C.A. § 63-3-603.
Summary: Vehicles must drive in the right lane except when overtaking a vehicle; when the right lane is closed while under construction or repair; upon a roadway with three marked traffic lanes; or on a roadway designated for one-way traffic. Slower traffic must keep right. The driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal. Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway.
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).
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, Mississippi Department of Public Safety, Driver Records Branch, P.O Box 958
Jackson, MS 39205. https://www.dmvusa.com/state.php?id=26
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.
Federal , State, and Local Governmental Entities
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.
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.
General Tort Laws/Statutes
Prohibits Intermediate Indemnity. Applies to Construction Contracts or Agreements. Miss. Code § 31-5-41.
Not applicable to construction bonds or insurance contracts or agreements.
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).
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.
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).
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.
In Progressive Country Mutual v. Goodyear Tire & Rubber Company, 552 F.Supp3d 724 (N.D. Ohio 2021) (interpreting Mississippi law), Progressive attempted to subrogate for property damage to a motor home which was damaged when one of its tires was defective and blew. The court held that a products liability case brought under a theory of strict liability and/or negligence (tort), in which the plaintiffs seek only damages that are economic in nature (damage to the product itself), are not allowed. The court held that the “other property” exception to the ELD did not apply because courts considering it in the context of motor vehicle accidents under Mississippi law have consistently ruled that “[c]omponent parts [of a vehicle] are not ‘other property.’ ” State Farm Mut. Ins. Co., supra.
The State Farm case was a subrogation action filed against Ford claiming in which Ford claimed that the oil seal that permitted oil to leak and start a fire that destroyed the automobile was “an integral component part of the car and could not be considered “other property” that would render the ELD inapplicable). However, in State Farm, the subrogated auto carrier subrogated against Ford based on strict liability and negligence in tort, breach of an express warranty, and breach of an implied warranty of merchantability. Ford argued that the ELD prohibited the tort claim and that the property damages could be pursued only under a warranty theory. East Mississippi Electric Power Association v. Porcelain Products Co., 729 F.Supp. 512 (S.D.Miss.1990); Lee v. General Motors Corp., 950 F.Supp. 170 (S.D. Miss. 1996). Ford issued a new vehicle limited warranty covering Penton’s 1994 Ford Thunderbird. The limited warranty was a bumper-to-bumper warranty but excluded “fire.” A jury question existed as to whether the terms of the limited warranty excluded subsequent damage due to an alleged defective part or design. State Farm and Penton allege that the resulting fire was caused by either defective design, manufacture, or negligent inspection on part of Ford. A reading of the warranty appears to show that fire damage is excluded if it results from “alteration, misuse, or accident” but is not necessarily excluded if it results from, for example, a defective part or a failure to diagnose or repair following a warranty-covered service request. A genuine issue exists as to whether Ford is responsible for repair or replacement of the entire vehicle caused by the alleged defect. The express warranty is susceptible to an interpretation which could include coverage for this type of damage. But such an interpretation is for the jury to decide.
State Farm also alleged breach of the implied warranty of merchantability. The implied warranty of merchantability is codified in § 75–2–314 and reads:
(1) Except as provided in subsection (5), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind….
(2) Goods to be merchantable must be at least such as:
(c) Are fit for the ordinary purposes for which such goods are used….
The implied warranty of merchantability cannot be waived or disclaimed. Miss Code Ann. § 11–7–18. Moreover, case law clearly holds that the implied warranty of merchantability applies to the sale of used vehicles. Gast v. Rogers–Dingus Chevrolet, 585 So.2d 725 (Miss.1991).
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.
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).
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’ Comp Third Party Case3 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.
Health Insurance Subrogation
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).
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.
Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims
Duty To Disclose: No.
Failure To Disclose A Basis For Bad Faith: Not alone. Liability requires a showing of gross negligence, malice, or reckless disregard for the insured’s rights. Gallagher Bassett Servs. v. Jeffcoat, 887 So.2d 777, 786 (Miss. 2004) (citing Bass v. California Life Ins. Co., 581 So.2d 1087 (Miss. 1991)).
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).
Product Liability Subrogation
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
“Matching Regulations” And Laws Affecting Homeowners Property Claims
Condominium/Co-Op Waiver of Subrogation Laws
Mississippi condo law does not address insurance requirements or waivers of subrogation. M.C.A. § 89-9-1.
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
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).
General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims
Payment And Depreciation Of GCOP/Sales Tax: No applicable case law, statutes, administrative rules, or other guidance with regard to the calculation and/or depreciation of GCOP. GCOP was only mentioned in Bryant v. Prime Ins. Syndicate, Inc., No. 1:07CV1126-LG-RHW, 2010 WL 1713248 (S.D. Miss. Apr. 27, 2010). In Bryant, the jury was instructed: “If you find that it was reasonably likely that the Plaintiff would have needed to utilize the services of a general contractor in order to repair their property, then overhead, profit, and sales tax should be included in the ACV calculation. The Plaintiff would be entitled to these expenses, regardless of whether they actually repaired the property or hired a general contractor.”
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).
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.
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).
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.”
Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Collateral Source Rule: Common law CSR says that collateral source cannot be used by defendant in mitigation or reduction of damages. Burr v. Mississippi Baptist Med. Ctr., 909 So.2d 721 (Miss. 2005).
Recovery of Medical Expenses Rule:
Private Insurance: Defendant may not have damages reduced by reason of collateral sources that plaintiff receives from insurance, workers’ compensation, or Medicaid. Walmart Stores, Inc. v. Frierson, 818 So.2d 1135 (Miss. 2002). The CSR applies equally to medical expense write-downs. Knox v. Ferrer, et al., 2008 WL 4446534 (S.D. Miss. 2008). Plaintiff’s medical bills are “incurred” when he receives the necessary treatment, and that a subsequent write-off of the expenses does not remove the amounts from the operation of the CSR.
Medicare/Medicaid: Same rule applies to Medicare and Medicaid payments. Wal-Mart Stores, Inc. v. Frierson, 818 So.2d 1135 (Miss. 2002). Medicaid payments subject to CSR. Brandon HMA, Inc. v. Bradshaw, 809 So.2d 611 (Miss. 2001); Gatlin v. Methodist Med. Ctr., 772 So.2d 1023 (Miss. 2000).
Medical Malpractice: If evidence is introduced for a purpose other than to mitigate damages, the CSR is not violated M.C.A. § 11-1-60 (2002) defines “actual economic damages” as “objectively verifiable pecuniary damages arising from medical expenses and medical care …” M.C.A. § 41-9-119 also states, “Proof that medical, hospital, and doctor bills were paid or incurred … shall be prima facie evidence that such bills … were necessary and reasonable.”
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).
Hospital Lien Laws
Statute: No statutory provision in Mississippi.
Comments: Mississippi limited hospital liens for treatment of burn care only. However, the statutes providing for this lien were repealed effective July 1, 2019.
OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases
OCIP Law: In 2017, in a case of first impression, the Mississippi Supreme Court announced that an owner which provided workers’ compensation coverage to employees of a subcontractor through a wrap-up insurance program (OCIP) was not considered to be the statutory employer of an injured employee of the subcontractor and could not claim immunity under the Exclusive Remedy Rule. Thomas v. Chevron U.S.A., Inc., 212 So.3d 58 (Miss. 2017).
Statutory Employer Law: When an employee is engaged in the service of two employers in relation to the same act (dual employment), both employers are exempt from common law liability, although only one of them has actually provided workmen’s compensation coverage. Ray v. Babcock & Wilcox Co., Inc. 388 So.2d 166 (Miss. 1980). Mississippi has not followed this line of reasoning with a blanket rule that any subcontractor and statutory employer are “dual employers” in an “up-the-line” situation. Rather, the court has coupled immunity with the statutory obligation to secure compensation imposed by § 71-3-7 on direct and statutory employers.
Comments: In Thomas v. Chevron U.S.A., Inc., the court explained its decision by saying that the owner had no duty as an employer or contractor to secure workers’ compensation insurance and its act of voluntarily purchasing coverage did not change its status. They held the owner was not immune from a negligence action and was subject to a subcontractor’s employee’s tort claim as “any other party” would be pursuant to Mississippi Code § 71–3–71. Exclusive remedy protected extended to both owners and general contractors. American Resources Ins. Co., Inc. v. W.G. Yates & Sons Constr. Co., 2012 WL 1033521 (S.D. Miss. 2012). The legal fiction of the “statutory employer” defense in Mississippi is paper thin. To grant a contractor “statutory employer” status simply because it requires its subcontractors to obtain workers’ compensation insurance seems contrary to the intent and purpose of the Act.
Recovery Of Increased Workers’ Compensation Premiums By Employer
Recovery For Increased Premiums? Undecided.
Statute/Case Law: No.
Rule Summary: There is no authority or precedent regarding the attempted recovery of damages for increased workers’ compensation insurance premiums by an employer from a third-party tortfeasor.
Which Workers’ Compensation “Benefits” Can Be Subrogated?
There is no precedent or discussion in case law regarding whether nurse case management fees or other allocated costs which may benefit the employer and/or employee can be recovered in subrogation. Section 71-3-71 describes a workers’ compensation carrier’s subrogation interest as follows:
… the amount paid by them as compensation and medical expenses.… M.C.A. § 71-3-71. (recovery made by employee).
… the amount that the employer and insurer shall have paid or are liable for in compensation or other benefits… (recovery made by carrier).
“Compensation” means “the money allowance payable to an injured worker or his dependents as provided in this chapter, and includes funeral benefits provided therein.” M.C.A. § 71-3-3.
Workers’ Compensation Subrogation Waiver Endorsements
Subrogation Statute: M.C.A. § 71-3-71
Waiver Allowed? Nothing in the Mississippi Workers’ Compensation Act or applicable case law prohibits the use or efficacy of a waiver of subrogation.
Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: A subrogation waiver also acts as a waiver to reimbursement so no lien on the claimant’s recovery is possible. Trejo v. Alter Scrap Metal, Inc. 210 WL 2773397 (S.D. Miss., July 13, 2010).
Other Applicable Law: None.
Statute of Limitations: 3 Years. M.C.A. § 71-3-71.
Can Carrier Sue Third Party Directly: Yes, with reasonable notice.
Right to 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, but not as to past medical or lost wages.
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.
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.