LIABILITY

Statutes of Limitation

1. Bodily Injury and Property Damage

A negligence claim arising from a trucking accident is subject to a three-year statute of limitation. Miss. Code Ann. § 15-1-49(1).

The plaintiff in some circumstances can benefit from a “discovery rule” if the defendant fraudulently concealed the cause of action from the plaintiff. Robinson v. Cobb, 763 So. 2d 883 (Miss. 2000) (reversing summary judgment and holding that a jury must determine whether driver fraudulently concealed his involvement in accident, and whether survivors acted with due diligence in attempting to discover their cause of action against driver).

2. Breach of Contract for Cargo Losses

The statute of limitations for breach of a written contract is three years. Miss. Code Ann. § 15-1-49; Wallace v. Greenville Public School Dist. 142 So. 3d 1104, 1106 (Miss. Ct. App. 2014) (“Causes of action for breach of contract are subject to the three-year statute of limitations set forth in Mississippi Code Annotated section 15-1-49 . . .”). Breach of verbal contracts are also governed by a three-year statute of limitation, except breach of verbal employment contracts, which are subject to a one-year statute of limitation, and claims governed by the Uniform Commercial Code. Miss. Code Ann. § 15-1-29; Lott v. Pritchett Const. Co. 141 So. 3d 437, 441 (Miss. Ct. App. 2013) (“the statute of limitations for both open-account actions and oral-contract actions is three years.”).

Mississippi’s state laws only apply as to claims arising from cargo transported intrastate. In cases in which the carrier is transporting cargo interstate, the Carmack Amendment preempts state law. Kuehn v. United Van Lines, LLC, 367 F. Supp. 2d 1047 (S.D. Miss. 2005). The Carmack Amendment states that a carrier may not by contract or otherwise mandate that the shipper must make a claim against the carrier during a period of less than 9 months after the shipment is made. 49 U.S.C. § 14706(e)(1). If the carrier denies a claim made by a shipper, in whole or in part, the shipper has at least two (2) years to bring a civil action under the Carmack Amendment. Id; see also Swift Textiles, Inc. v. Watkins Motor lines, Inc., 799 F.2d 697, n. 4 (11th Cir. 1986) (“The Carmack Amendment on its face contemplates that the choice of a statute of limitation is to lie with the shipper subject to the minimum time limit prescribed by the Act. Although the two year and one day period is not mandatory in the sense that it is imposed as an absolute by the Act, the Act clearly anticipates statutes of limitation and legislatively approves any limitation period exceeding two years. A natural way to manifest the carrier’s choice of a limitation period would be in the tariff classification which motor carriers have to file.”).

Negligent Entrustment, Hiring, Retention, Supervision

“‘[A]n employer will be liable for negligent hiring or retention of his employee when an employee injures a third party if the employer knew or should have known of the employee’s incompetence or unfitness.’” Parmenter v. J&B Enters., 99 So. 3d 207, 217 (Miss. Ct. App. 2012) (citations omitted). “‘Relatedly, if an employer exercises due care in the hiring of its employees, that employer will not be liable for the injuries of a third party unless that party can prove that the employer knew or should have known of the incompetence and unfitness of the employee.’” Id. Thus, a plaintiff must prove that an employer “either had actual or constructive knowledge of an employee’s incompetence or unfitness before the employer will become liable for the negligent hiring or retention of an employee who injures a third party.” Id.

What if Line and Scope is Admitted?

“Although the Mississippi Supreme Court has not yet addressed whether a plaintiff can pursue negligent supervision claims against an employer who has admitted vicarious liability, the federal district courts in this state predict that it would ‘find summary judgment on a claim of negligent entrustment appropriate where vicarious liability is not disputed.’” Coleman v. Swift Transp. Co. of Arizona, LLC, Civ. No. 3:13-CV-0003-DMB-SAA, 2014 WL 3533322, at *5 (N.D. Miss. July 16, 2014) (collecting federal cases). The defendant has a sound argument that claims for negligent entrustment, hiring, retention, and supervision should be dismissed if “line and scope” is admitted.

Line and Scope of Employment

The Mississippi Supreme Court applies a general test to determine if an employee’s conduct falls within the line and scope of employment. Akins v. Golden Triangle Planning and Dev. Dist., Inc., 34 So. 3d 575, 580 (Miss. 2010). The fact-finder should consider whether (1) the employee’s conduct is the kind he is employed to perform; (2) the conduct occurs substantially within the authorized time and space limits; (3) the conduct is actuated, at least in part, by a purpose to serve the employer; and (4) if force is intentionally used by the employee against another, the use of force is not unexpected by the employer. Id. The fact-finder should also consider if the employee was acting in furtherance of the employer’s business. Cooper v. Sea West Mechanical Inc., 219 So. 3d 550, 553 (Miss. Ct. App. 2017).

For intentional torts by an agent/employee, an employer may be held liable if the employer authorized the act prior to its occurrence or ratified the act after its commission, or where the act was committed during the line and scope of employment. Partrige v. Harvey, 805 So. 2d 668, 671 (Miss. Ct. App. 2002).

Generally, an employer is not liable for tortious acts of an independent contractor. Richardson v. APAC-Mississippi, Inc., 631 So. 2d 143, 151 (Miss. 1994). “[T]he difference between a master-servant relationship and an independent-contractor relationship is that an employer in a master-servant relationship has control of, or the right to control, the employee in the details of the work.” Hill v. City of Horn Lake, 160 So. 3d 671, 676 (Miss. 2015).

Comparative or Contributory Negligence

Mississippi is a pure comparative negligence state, which requires the jury to allocate percentages of fault between the plaintiff and the defendant.

Miss. Code Ann. § 11-7-15. A plaintiff who proves the defendant is negligent to any extent that is a proximate cause of the injury for which damages are sought is entitled to recover, but his recovery is reduced “in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person in control of the property.” Miss. Code Ann. § 11-7-15.

It is worth noting that the Mississippi Supreme Court has merged both the defense of assumption of the risk and the defense of “open and obvious danger” into comparative negligence. Churchill v. Pearl River Basin Dev. Dist., 757 So. 2d 940, 943-44 (Miss. 1999) (assumption of risk); Tharp v. Bunge Corp., 641 So. 2d 20, 25 (Miss. 1994) (open and obvious dangers).

Sudden Emergency Defense?

Mississippi does not recognize the sudden emergency defense. Knapp v. Stanford, 392 So. 2d 196 (Miss. 1980).

Contribution or Implied Indemnity from Third-Parties

Under Mississippi law, an obligation to indemnify may arise from an express contractual relationship, from an implied contractual relationship, or out of liability imposed by law. Hartford Cas. Ins. Co. v. Haliburton Co., 826 So. 2d 1206, 1216 (Miss. 2001). To prevail on an indemnity claim, the claimant must prove (1) the party was legally liable to an injured third party; (2) the party paid under compulsion; and (3) the amount it paid was reasonable. Id.

Generally, indemnity rights do not apply among joint tortfeasors. J.B. Hunt Transport, Inc. v. Forrest General Hosp., 34 So. 3d 1171, 1174 (Miss. 2010). However, there are some circumstances in which a “passive” tortfeasor may have an indemnity claim against an “active” tortfeasor. Id. A party is passively negligent if he failed to act in fulfillment of a duty of care that the law imposes upon him. Borne v. Estate of Carraway, 118 So. 3d 571, 588 (Miss. 2013). In contrast, a defendant was actively negligent if he participated in some manner in conduct which caused injuries. Id.

Exclusivity of Workers’ Compensation

Workers compensation is the exclusive remedy for an injured employee, and shields the employer from all related liability. Miss. Code Ann. § 71-3-9. An intentional tort exception exists, but the employee must prove that the actions of the employer were both (1) willful, and (2) done for the purpose of causing injury to the employee. Bowden v. Young, 120 So. 3d 971 (Miss. 2013).

Seat Belt and Helmet Use

Seat belts are required for the driver and every passenger in Mississippi “[w]hen a passenger motor vehicle is operated in forward motion on a public road, street or highway within this state . . .” Miss. Code Ann. § 63-2-1(1). A passenger motor vehicle is defined as “a motor vehicle designed to carry fifteen (15) or fewer passengers, including the driver, but does not include motorcycles that are not autocycles as defined in Section 63-3-103, mopeds, all-terrain vehicles or trailers.” Miss. Code Ann. § 63-2-1(2). Mississippi law further provides that the “[f]ailure to provide and use a seat belt restraint device or system shall not be considered contributory or comparative negligence, nor shall the violation be entered on the driving record of any individual.” Miss. Code Ann. § 63-2-3.

Helmets are required in Mississippi in certain situations. Section 63-7-64 states: “No person shall operate or ride upon any motorcycle or motor scooter upon the public roads or highways of this state unless such person is wearing on his or her head a crash helmet . . .” Id.

Spoliation

The Mississippi Supreme Court explained the general rule of spoliation in Thomas v. Isle of Capri Casino, 781 So. 2d 125 (Miss. 2001) as follows: “[w]hen evidence is lost or destroyed by one party (the ‘spoliator’), thus hindering the other party’s ability to prove his case, a presumption is raised that the missing evidence would have been unfavorable to the party responsible for its loss.” Id at 133. The Thomas Court further held that, “because the presumption of unfavorability is not solely confined to the specific issue of what information was contained in the missing evidence, the fact finder is free to draw a general negative inference from the act of spoliation, regardless of what the spoliator’s rebuttal evidence shows.” Id.; see also DeLaughter v. Lawrence County Hosp., 601 So. 2d 818, 822 (Miss. 1992). The negative inference applies in cases of both intentional and negligent destruction of evidence. Thomas, 781 So. 2d at 133-34.

Courts impose a duty to preserve evidence (absent a specific demand), once a party reasonable anticipates litigation. Grand Casino Biloxi v. Hallmark, 823 So. 2d 1185 (Miss. 2002). Notably, Mississippi does not recognize an independent cause of action for spoliation of evidence. Richardson v. Sara Lee Corp., 847 So. 2d 821, 824 (Miss. 2003).

The Mississippi Supreme Court in Grand Casino Biloxi v. Hallmark, 823 So. 2d 1185 (Miss. 2002) determined the defendant casino had a duty to preserve a slot machine’s computer data report along with surveillance video and the machine itself because the casino was aware of the subject jackpot dispute. The court noted that had the computer data been preserved, the Gaming Commission could have examined the data to determine what code the machine entered at the time of the plaintiff’s alleged win. Thus, while the holding in Grand Casino Biloxi is fairly fact-specific, the court upheld the duty to preserve electronic evidence where a party was aware of potential litigation that would concern the data.

Federal courts in Mississippi have been more explicit about the duty to preserve electronic evidence, recognizing the Zubulake decisions as “setting the benchmarks for modern discovery and evidence-preservation issues.” Kermode v. U. of Mississippi Med. Ctr., 3:09-CV-584-DPJ-FKB, 2011 WL 2619096, at *4 n.1 (S.D. Miss. July 1, 2011). Specifically, the district court for the Southern District of Mississippi considers Zubulake and its progeny persuasive as to the standards for preserving electronic evidence in the absence of binding Fifth Circuit precedent. Id. Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003). As a general rule, the litigation hold does not apply to inaccessible backup takes (those typically maintained solely for the purpose of disaster recovery) which may continue to be recycled on the schedule set forth in company policy. Id. However, if backup tapes are accessible (those actively used for information retrieval), then such tapes are likely subject to the litigation hold. Id.

While the Mississippi Supreme Court has recognized the distinction between first and third party spoliators, it has refused to allow a separate cause of action for a spoliation claim regardless of whether the spoliator was a first party or third party. See Dowdle Butane Gas Co. v. Moore, 831 So. 2d 1124, 1127-28 (Miss. 2002). The court found that non-tort remedies for spoliation are sufficient in the vast majority of cases to deal with spoliation issues. Id at 1135.

DAMAGES

Caps

“Noneconomic” damages are capped at $1 million dollars. Miss. Code Ann. § 11-1-60(2)(b). Noneconomic damages are defined as subjective, non-pecuniary damages “arising from death, pain, suffering, inconvenience, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, bystander injury, physical impairment, disfigurement, injury to reputation, humiliation, embarrassment, loss of the enjoyment of life, hedonic damages, other nonpecuniary damages, and any other theory of damages such as fear of loss, illness or injury.” Miss. Code Ann. § 11-1-60(1)(a); see also Learmonth v. Sears, Roebuck and Co., 710 F.3d 249 (5th Cir. 2013) (finding cap to be constitutional). Punitive and exemplary damages are excluded from the definition of “noneconomic damage.” Miss. Code Ann. § 11-1-60(1)(a).

Joint & Several Liability

Mississippi generally does not recognize joint and several liability. Miss. Code Ann. § 85-5-7(2). However, “[j]oint and several liability shall be imposed on all who consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in it.” Miss. Code Ann. § 85-5-7(4).

In the employment context, an employee (driver) and his or her employer are considered as a single defendant for apportionment of fault, and are thus jointly and severally liable for negligence of the employee committed in the line and scope of his or her employment. Miss. Code Ann. § 85-5-7(2), see Sykes v. Home Health Care Affiliates, Inc., 125 So. 3d 107 (Miss. Ct. App. 2013) (even though statute of limitations had run as to driver; driver and his employer were jointly and severally liable for injury caused by driver's alleged negligence in the scope of his employment, and there was no legal preclusion from litigating driver's alleged negligence in an action against employer.)

Standard of Proof Required for Compensatory Damages

Collateral Source Rule

Mississippi recognizes the collateral source rule, which provides that compensation received by a plaintiff from a collateral source, wholly independent of the wrongdoer, cannot be used by a defendant in mitigation or reduction of damages. Burr v. Mississippi Baptist Medical Center, 909 So. 2d 721, 728 (Miss. 2005). The rule prevents a defendant from introducing evidence of such payments to reduce its liability. However, if evidence is introduced for a purpose other than to mitigate damages, the collateral source rule is not violated and the evidence may be admitted. Id. at 729. A plaintiff may recover for expenses written off by healthcare providers and thus defendants are not permitted to introduce evidence of such payments for purposes of mitigating their damages. Wal-Mart Stores, Inc. v. Frierson, 818 So. 2d 1135 (Miss. 2002); Brandon HMA, Inc. v. Bradshaw, 809 So. 2d 611 (Miss. 2001).

The plaintiff can submit and claim as damages the face amount of the medical bills paid or incurred and such evidence is “prima facie evidence that such bills so paid or incurred were necessary and reasonable.” Miss. Code Ann. § 41- 9-119. A defendant is entitled to “rebut the necessity and reasonableness of the bills, and the ultimate question is for the jury to determine.” Herring v. Poirrier, 797 So. 2d 797, 809 (Miss. 2000). Defendants in Mississippi are increasingly retaining medical billing experts to audit the face amount of medical bills and testify that the face amounts are unreasonable and have no relation to the cost of the service performed nor to the expected payment.

Hedonic Damages

Hedonic damages are not recoverable in Mississippi. “In any civil action for personal injury there may be a recovery for pain and suffering and loss of enjoyment of life. However, there shall be no recovery for loss of enjoyment of life as a separate element of damages apart from pain and suffering damages, and there shall be no instruction given to the jury which separates loss of enjoyment of life from pain and suffering.” Miss. Code Ann. § 11-1-69(1). “In any wrongful death action, there shall be no recovery for loss of enjoyment of life caused by death.” Miss. Code § 11-1-69(2).

Life Care Plans

Mississippi allows for life care plans as part of damages. Trial courts require expert testimony pursuant to Rule 702 to establish the costs associated with such a plan. Miss. R. Evid. 702; Johnson & Johnson, Inc. v. Fortenbury, 234 So. 3d 381, 404-05 (Miss. 2017); Emergency Med. Assoc. of Jackson, PLLC v. Glover, 189 So. 3d 1247, 1260 (Miss. Ct. App. 2016). “‘Recoverable damages must be reasonably certain in respect to the efficient cause from which they proceed, and the burden in on claimant to show by a preponderance of the evidence that the defendant was the wrongful author of that cause.’” Fortenbury, 234 So. 2d at 403.

Wrongful Death Standing and Damages

The personal representative of the decedent’s estate and “beneficiaries” have standing to bring a wrongful death suit. Eligible beneficiaries are statutorily defined as surviving spouses, parents, siblings, or children. Miss. Code Ann. § 11-7-13. According to the wrongful death statute, all interested parties may join the suit, but there may only be one suit for the same death. Id. Any party may initiate suit and any subsequent suits for wrongful death based on the same death will be dismissed. Id; see also Estate of Davis By and Through Davis v. Blaylock, 212 So. 3d 755, 759-60 (Miss. 2017).

The wrongful death statute describes damages recoverable as “property damages and funeral, medical or other related expenses incurred by or for the deceased as a result of such wrongful or negligent act or omission or breach of warranty . . .” Miss. Code Ann. § 11-7-13. “In a suit for wrongful death, the damages are intended to compensate the statutory wrongful death heirs for their losses resulting from the death.” In re Estate of England, 846 So. 2d 1060, 1066 (Miss. 2003). “For instance, the estate is entitled to recover funeral costs and final medical expenses. The beneficiaries are entitled to recover for their respective claims of loss of society and companionship. The wrongful death beneficiaries are entitled to recover the present net cash value of the decedent’s continued existence.” Long v. McKinney, 897 So. 2d 160, 169 (Miss. 2004). The heirs and estate may also seek loss of the decedent’s income. Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911, 917-18 (Miss. 2002).

Additionally, “[a]n action for wrongful death includes the decedent's ‘survival-type’ claims, such as claims for his or her personal injury, property damage, and medical and funeral expenses, and the wrongful-death claimants' so called ‘wrongful-death’ claims, such as loss of consortium, society, and companionship.” Clark Sand Co. v. Kelly, 60 So. 3d 149, 161 (Miss. 2011). As noted above, hedonic damages are not recoverable in wrongful death cases. Goodyear Tire & Rubber Co. v. Kirby, 156 So. 3d 281, 311 (Miss. Ct. App. 2009).

Punitive Damages

1. Standard of Recovery

Mississippi permits the recovery of punitive damages. “[P]unitive damages may be recovered not only for a willful and intentional wrong, but for such gross and reckless negligence as is, in the eyes of the law, equivalent to willful wrong.” Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d 911, 923 (Miss. 2002). “Punitive damages may not be awarded if the claimant does not prove by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.” Miss. Code Ann. § 11-1-65(1)(a).

If the plaintiff submits evidence to warrant punitive damages, the fact finder must consider, to the extent relevant, the factors found in § 11-1-65(e) when determining the appropriate amount of punitive damages. Miss. Code Ann. § 11-1-65(e) (“the defendant's financial condition and net worth; the nature and reprehensibility of the defendant's wrongdoing, for example, the impact of the defendant's conduct on the plaintiff, or the relationship of the defendant to the plaintiff; the defendant's awareness of the amount of harm being caused and the defendant's motivation in causing such harm; the duration of the defendant's misconduct and whether the defendant attempted to conceal such misconduct; and any other circumstances shown by the evidence that bear on determining a proper amount of punitive damages.”). “The trier of fact shall be instructed that the primary purpose of punitive damages is to punish the wrongdoer and deter similar misconduct in the future by the defendant and others while the purpose of compensatory damages is to make the plaintiff whole.” Id.

2. Caps

Section 11-1-65(3)(a) sets limitations on punitive damages based upon the net worth of the defendant.

Miss. Code Ann. § 11-1-65(3)(a). Notably, the limitations in § 3(a) do not apply to cases in which the defendant “was under the influence of alcohol or under the influence of drugs other than lawfully prescribed drugs administered in accordance with a prescription.” Miss. Code Ann. § 11-1-65(3)(d)(ii).

3. Insurability of Punitive Damages

Punitive damages are insurable unless specifically excluded from the policy. Shelter Mut. Ins. Co. v. Dale, 914 So. 2d 698, 702 (Miss. 2005); Anthony v. Frith, 394 So. 2d 867, 868 (Miss. 1981) (“[I]t [is] not against public policy to require the carrier to pay punitive damages.”). An insurance carrier may exclude indemnifying its insured for punitive damages through the use of express language in the policy. Nautilus Ins. Co. v. Wonderland Exp., Inc., 2015 WL 1279987, n.1 (S.D. Miss. March 20, 2015) (“Mississippi law allows an insurance company to exclude coverage for punitive damages.”)

Offers of Judgment

Any offer of judgment must be made more than 15 days before trial begins. Miss. R. Civ. P. 68. The recipient of the offer has 10 days to accept the offer in writing. Id. If the offer is accepted, either party may file the offer and acceptance of the offer with the trial court, and the trial court will enter a consent judgment. Id. If the offer is rejected and the judgment ultimately obtained is less than the offer, the offeree must pay all of the costs incurred after the offer was made. Id. The offeror, however, may not recover attorney’s fees under Rule 68. Harbit v. Harbit, 3 So. 3d 156, 162 (Miss. Ct. App. 2009).

Biomechanics

In order for a biomechanical engineer to testify as an expert, the trial court must make sure the purported expert meets the standards in Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Miss. R. Evid. 702. There are examples in which biomechanical experts have been excluded from testifying at trial, Grant v. Ford Motor Co., 89 So. 3d 655, 664-73 (Miss. Ct. App. 2012), as well as examples of biomechanical experts being permitted to give expert testimony, Brown v. Prof’l Bldg. Serv., Inc., 2017 WL 4641265, at *5-6 (Miss. Ct. App. 2017).

Pre-Suit Disclosure of Policy Limits

There is no authority from a Mississippi appellate court holding that an insurance carrier must provide its policy limits to a third-party claimant prior to the lawsuit. In Hemphill v. State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 541-42 (5th Cir. 2015), the Fifth Circuit was presented with unique facts in a breach of fiduciary duty case filed by the insured against the carrier in which the carrier verbally told the third-party claimant about the policy limits prior to the underlying lawsuit (which resulted in a judgment in excess of the policy limits) but did not provide a written certificate of coverage. The Fifth Circuit held that the carrier did not breach a duty owed to the insured, and declined to find that the Mississippi Supreme Court would hold that the carrier owed an affirmative duty to provide a written certificate of coverage to the claimant prior to the lawsuit.

After the lawsuit is filed, the plaintiff can discover the insurance policy and limits. Miss. R. Civ. P. 26(b)(2).

May claimant recover general damages if the claimant does not have own auto-insurance? So called “No Pay, No Play” rules.

Mississippi does not have a “No Pay, No Play” rule for auto-insurance claims. Legislation has been proposed on the issue but nothing has been adopted.