Equitable Subrogation

SubrogationLast week the Mississippi Supreme Court reviewed a certified question from the Fifth Circuit Court of Appeals addressing an insurance carrier’s right to seek equitable subrogation and indemnity following a purported “voluntary” settlement.

The First Circuit submitted the following questions:
1) Does an insurer act under “compulsion” if it takes the legal position that an entity purporting to be its insured is not covered by its policy, but nonetheless pays a settlement demand in good faith to avoid potentially greater liability that could arise from a future coverage determination?
2) Does an insurer satisfy the “legal duty” standard if it makes a settlement payment on behalf of a purported insured whose defense it has assumed in good faith, but whose coverage under the policy has not been definitively resolved, even if the insurer maintains that the purported insured is not actually insured under the policy?
Colony Ins. Co. v. First Specialty Ins. Corp., 726 F. App’x 992, 995-96 (5th Cir. 2018).

The underlying subrogation suit arose following a settlement conference where one of the potential liability carriers, Colony, tendered policy limits in exchange for a full release. Colony then sought subrogation reimbursement from First Specialty. Specialty asserted that Colony’s payment was voluntary and refused to reimburse Colony.

The Mississippi Supreme Court took the opportunity to further review elements of a “voluntary payment” that may preclude recovery in a subsequent subrogation action.

Addressing only the first certified question the Court rejected Colony’s claim that it paid the settlement under compulsion because Colony asserted throughout the claim that its coverage was not triggered but defended under a reservation of rights. As such, the Court reasoned that Colony’s payment was not voluntary because it was acting to protect its own interests, not an insured.

The Court concluded, “[w]e find that an insurer does not act under compulsion if it takes the legal position that an entity purporting to be its insured is not covered by its policy but nonetheless pays a settlement demand in good faith to avoid potentially greater liability that could arise from a future coverage determination. Because the first certified question is dispositive, we decline to address the second certified question.”

Here’s the full unpublished opinion:

2019 WL 396894
Only the Westlaw citation is currently available.
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Supreme Court of Mississippi.
COLONY INSURANCE COMPANY
v.
FIRST SPECIALTY INSURANCE CORPORATION
NO. 2018-FC-00574-SCT
|
01/31/2019
EN BANC.
Opinion

KING, JUSTICE, FOR THE COURT:

*1 ¶1. Under the provisions of Rule 20 of the Mississippi Rules of Appellate Procedure, the United States Court of Appeals for the Fifth Circuit has certified questions to this Court.1 An incident at Omega Protein Corporation’s (Omega) facility resulted in the death of an employee of Accu-Fab & Construction, Inc. (Accu-Fab). Although Colony Insurance Company (Colony) continually maintained that it did not insure Omega, Colony negotiated and paid a settlement claim under a reservation of rights on Omega’s behalf. Because Colony took the position that it had no duty to defend Omega at all, the district court concluded that Mississippi’s voluntary-payment doctrine precluded Colony’s claims for equitable subrogation and implied indemnity.

¶2. Pursuant to this Court’s precedent, an insurer is barred from seeking indemnity for a voluntary payment. Keys v. Rehab. Ctrs., Inc., 574 So.2d 579, 584 (Miss. 1990); see McDaniel Bros. Const. Co. v. Burk-Hallman Co., 253 Miss. 417, 175 So.2d 603, 605 (1965) (“[A] voluntary payment can not be recovered back….”). In order to recover, the indemnitee must prove that it both paid under compulsion and that it was legally liable to the person injured. Id. The Fifth Circuit certified the following questions to this Court:
1) Does an insurer act under “compulsion” if it takes the legal position that an entity purporting to be its insured is not covered by its policy, but nonetheless pays a settlement demand in good faith to avoid potentially greater liability that could arise from a future coverage determination?
2) Does an insurer satisfy the “legal duty” standard if it makes a settlement payment on behalf of a purported insured whose defense it has assumed in good faith, but whose coverage under the policy has not been definitively resolved, even if the insurer maintains that the purported insured is not actually insured under the policy?
Colony Ins. Co. v. First Specialty Ins. Corp., 726 F. App’x 992, 995-96 (5th Cir. 2018)

FACTS AND PROCEDURAL HISTORY
¶3. On July 28, 2014, an explosion at Omega’s facility in Moss Point, Mississippi, killed an employee of Accu-Fab, Jerry Lee Taylor II. At the time of the incident, Omega was the named policyholder of two third-party insurance policies. ACE American Insurance Company (AAIC) provided a $1,000,000 primary commercial general liability policy to Omega, subject to a $250,000 deductible. First Specialty Insurance Corporation also provided a $10,000,000 excess liability policy, which provided limits in excess of the underlying AAIC policy. In addition, Accu-Fab was the named policyholder of a third-party insurance policy issued by Colony. Colony issued to Accu-Fab a primary liability policy with a $1,000,000 liability limit. The Colony Policy contained an “Additional Insured” provision, which designated “[a]ll persons or organizations as required by written contract with the Named Insured” as being insureds under the Colony Policy as well, subject to certain limitations and exclusions.

*2 ¶4. The Fifth Circuit summarized the subsequent events as follows:
On March 4, 2015, Omega informed Colony that it expected to receive “claims for personal injury and/or wrongful death” arising out of the July 2014 explosion. Asserting that it qualified as an “additional insured” under the Colony Policy, Omega demanded that Accu-Fab and Colony “defend and fully indemnify [it] from any [such] claims.”
On March 13, 2015, Colony notified Omega that it was conducting an investigation into the explosion “under a full and complete reservation of rights … including the right to disclaim coverage in whole or in part should it consider such denial warranted.” Colony contended that the Colony Policy’s “Total Pollution Exclusion may apply to preclude coverage in this matter” and expressed doubt that Omega qualified as an “additional insured.”
On April 17, 2015, Colony filed a complaint for declaratory judgment in the Circuit Court of Jackson County, Mississippi. The complaint, which named Accu-Fab and Omega as defendants, sought a court order “declaring that the [Colony Policy] does not provide any coverage for any and all damages or injuries sustained as a result of the [July 2014] explosion.”
On September 2, 2015, Taylor’s estate and survivors filed a wrongful death action against Omega in federal district court.2 Colony subsequently agreed to fund Omega’s defense, subject to a “full and complete” reservation of rights, “including the right to seek recovery of all defense costs it incurs on behalf of Omega should a court determine that Colony does not in fact owe a defense to [Omega].” In a letter dated December 9, 2015, Colony informed Omega’s attorney that:
Colony’s position is that it does not believe the policy of insurance it issued to Accu-Fab provides any coverage whatsoever for the unfortunate incident which occurred at the Omega Protein facility on July 28, 2014. Nevertheless, at your request Colony has agreed to fund the defense of Omega Protein, and is pursuing a declaratory judgment action in order to have the court determine whether its coverage position is or is not correct. Colony is providing a good-faith defense to Omega through the services of your law firm and yourself. If the court ultimately determines that the policy issued by Colony to Accu-Fab does not require that it fund Omega’s defense, Omega will have been unjustly enriched to the extent Colony paid its defense costs when it had no obligation to do so.
Colony also wrote that, “[w]ith regard to Taylor’s settlement demand, Colony will of course consider any reasonable demand sent to it,” but “any demands for settlement made on behalf of the estate and survivors of Mr. Taylor will be reviewed in light of the insurance coverage issue which is currently the subject of Colony’s declaratory judgment action.”
Colony Ins. Co., 726 F. App’x at 992-93.

¶5. The court scheduled a settlement conference in the Taylor lawsuit for January 14, 2016. Two days before the settlement conference, First Specialty wrote to Colony and requested that Colony settle the lawsuit. The letter stated in relevant part,
*3 The Colony Additional Insured endorsement amends its Other Insurance clause, stating that the Colony coverage “is primary insurance and [Colony] will not seek contribution from any other insurance available to [Colony] additional insured.” Colony, therefore, is primary to [AAIC]. The Taylor claim will certainly not settle for $1 million. As noted, failure to take advantage of the opportunity on January 14 to settle the Taylor claim for $2 million or less may not come again and may result in substantial unnecessary losses for Omega and its excess insurers, potentially including [First Specialty]. Accordingly, [First Specialty] respectfully requests Colony to be prepared to tender its limits to settle the Taylor claim during the January 14 settlement conference….
At the settlement conference, Colony excluded First Specialty’s representative from the conference and agreed to pay its $1,000,000 policy limit in exchange for Omega’s “full and complete release” from the lawsuit. Colony subsequently dismissed its declaratory-judgment action against Omega.

¶6. Colony then demanded that First Specialty reimburse the full amount Colony contributed to the Taylor settlement. When First Specialty refused, Colony filed an action against it seeking reimbursement of the amount it had contributed to the settlement of Taylor’s wrongful-death lawsuit against Omega. Colony asserted claims of equitable subrogation and implied indemnity.

¶7. In response, First Specialty filed a Motion for Summary Judgment, and Colony filed a Cross Motion for Summary Judgment. The district court found that Mississippi’s voluntary payment doctrine precluded Colony from recovery for payments made on behalf of a defendant that it did not insure and granted First Specialty’s motion. The district court then entered a final judgment dismissing Colony’s suit with prejudice. Colony appealed to the Fifth Circuit. The Fifth Circuit then certified the above-stated questions to this Court.

ANALYSIS
¶8. Mississippi law provides that a voluntary payment cannot be recovered back. McLean v. Love, 172 Miss. 168, 157 So. 361, 362 (1934). A voluntary payment is one which is made “[w]ithout compulsion or fraud, and without any mistake of fact, of a demand which the payor does not owe, and which is not enforceable against him….” Id. A “voluntary payor” is a “stranger or intermeddler who has no interest to protect and is under no legal or moral obligation to pay.” Indem. Ins. Co. of N. Am. v. Guidant Mut. Ins. Co., 99 So.3d 142, 150 (Miss. 2012)(“Guidant II ”).

¶9. A payment may not be considered voluntary unless the payor had “full knowledge of all the facts which would render the payment voluntary.” Glantz Contracting Co. v. Gen. Elec. Co., 379 So.2d 912, 917 (Miss. 1980). To determine whether payments are made on a voluntary basis, this Court looks at the facts of each particular case. Id. at 917-18.

I. Compulsion
¶10. In Mississippi, “[t]o recover indemnity it is necessary for the plaintiff to allege and prove that he was legally liable to the person injured, and consequently, paid under compulsion. Otherwise, the payment is a voluntary one for which there can be no recovery.” Sw. Miss. Elec. Power Ass’n v. Harragill, 254 Miss. 460, 182 So.2d 220, 223 (1966). The first question certified to this Court asks whether an insurer acts under “compulsion” if it takes the legal position that an entity purporting to be its insured is not covered by its policy, but nonetheless pays a settlement demand in good faith to avoid potentially greater liability that could arise from a future coverage determination.

¶11. Colony argues that, because it had an interest to protect when it made the settlement payment, it paid under compulsion no matter the extent or quantity of its interest. In contrast, First Specialty contends that “compulsion” requires more than a potential lawsuit against the payor or the payor’s perception of potential liability if it does not make the subject payment. It argues that compulsion requires “urgent and immediate circumstances” in which the failure to pay risks severe consequences to the payor or threatens the payor’s financial viability.

*4 ¶12. We answer the first certified question in the negative. As First Specialty argued, Colony maintained from the beginning that it did not insure Omega. Colony argued that its policy did not cover Omega for two reasons. First, Colony argued that a provision in its policy excluded the injuries suffered by Taylor from coverage. Colony’s policy included a “Total Pollution Exclusion” which stated,
This insurance does not apply to:
f. Pollution
(1) ‘Bodily injury’ or ‘property damage’ which would not have occurred in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’ at any time …
Its policy defined “pollutants” as “any solid, liquid, gaseous or thermal irritant or contaminant[.]” Colony argued that it was not obligated to defend Omega because Taylor’s death was caused by “the ignition of several combustible gases” contained within a tank that had an approximately twenty thousand pound lid. Colony argued that for the lid to have blown off the tank, seepage or release of the contained gasses, which constituted pollutants had to have occurred.

¶13. Second, Colony argued that Omega was not considered an “additional insured” under its policy. Pursuant to the policy, an “additional insured” was defined as
the person(s) or organization(s) shown in the Schedule, but only with respect to liability for ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ caused, in whole or in part, by:
1. Your acts or omissions; or
2. The acts or omissions of those acting on your behalf in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above.
Accordingly, Colony contended that a person or entity may only be an additional insured for bodily injury caused in whole or in part by Accu-Fab’s acts or omissions or by acts or omissions of someone acting on behalf of Accu-Fab. Colony argued that because the policy specifically stated “liability … caused, in whole or in part, by,” it required that the underlying complaint allege that the named insured (Accu-Fab) or someone acting on behalf of Accu-Fab was negligent and proximately caused the injury. Because Taylor did not include Accu-Fab as a party or allege any negligence or fault on its part, Colony argued that Omega was not an additional insured. Therefore, when Colony negotiated the settlement payment, Colony did not merely dispute that its policy excluded coverage for the injuries Taylor suffered, but it maintained that it did not insure Omega at all. Colony’s fear that Omega might be an additional insured under its policy does not amount to compulsion.

¶14. Black’s Law Dictionary provides two definitions of the word “compel”: 1) “to cause or bring about by force, threats, or overwhelming pressure” or 2) “to convince (a court) that there is only one possible resolution of a legal dispute.” Compel, Black’s Law Dictionary (10th ed. 2014). Previously, this Court has found that a threat to sue is not considered compulsion. McLean, 157 So. at 362. In McLean, a milling company was indebted to a bank in the total amount of $79,540.40. Ten stockholders guaranteed the notes and secured the notes with collateral. Id. at 361. When the milling company was thrown into bankruptcy, the bank demanded that the ten guarantors pay the entire balance without applying the collateral to the reduction of the stated balance. Id. The ten stockholders paid the full balance. When the collateral was sold, the stockholders sought to be reimbursed. Id. at 362. This Court found that payment of the full balance had been voluntary, holding that “the only compulsion suggested was a threat to sue, which is not compulsion.” Id. The Court reasoned,
*5 It is axiomatic in equity jurisprudence that a court of equity makes no exertion to extend relief to those who, being able to take care of their interests, have neglected to do so, and thereupon find themselves in predicaments which ordinary care would have avoided. And for the stronger reason, where an unjust demand has been made upon a party, a demand for a debt which he does not owe, or for more than he owes, he must, when he knows or ought to know the facts, avail of the means which the law affords him to resist the demand, and if he do not, and make the payment demanded, he has not taken due care.
Id.

¶15. Even the possibility of foreclosure on a deed of trust for land has been found to lack compulsion for purposes of the voluntary-payment doctrine. Rowe v. Union Cent. Life Ins. Co., 194 Miss. 328, 12 So.2d 431, 434 (1943). In Rowe, the appellant sought recovery for a portion of the purchase price paid for farm land. Id. at 432. After executing a special warranty deed for more than one thousand acres of farm land, the appellant discovered that the appellee did not own all of the land specifically described in the deed of conveyance. Id. The appellee declined to adjust the purchase price, and the appellant continued to pay the monthly sum agreed upon in the deed of conveyance, eventually paying off the full purchase price. Id. at 433. The appellant wrote that the payments were “being paid under protest and without waiving any rights that the grantee may have to recover the same….” This Court found that
The mere fact, however, that she may have been compelled to resort to equity to obtain a surrender of the notes and a cancellation of the lien of the deed of trust securing the same, upon a tender of the correct amount admitted to be due, does not render her payment of the full amount an involuntary payment, and this is especially true where it was made at a time when payment of the full balance was not being demanded under penalty of immediate foreclosure, and at a time when no coercion, duress or compulsion was being employed to exact such payment, and where no fraud or concealment was being practiced by the payee in connection with the receipt, acceptance, and collection of any part of the sum so paid.
Id. at 434–35.

¶16. We decline to adopt Colony’s argument that a payment is not voluntary if the payor is acting under compulsion to protect its own interests. The above cases each contain payments that the payors made to protect their own interests; and yet were not considered to be made under compulsion. Additionally, Colony was not under an immediate and urgent necessity to pay the settlement demand. The explosion occurred on July 28, 2014. On April 17, 2015, Colony filed its declaratory judgment action, seeking a court order “declaring that the [Colony Policy] does not provide any coverage for any and all damages or injuries sustained as a result of the [July 2014] explosion.” Taylor’s estate did not file its wrongful-death action until September 2, 2015. Colony then settled the action on January 14, 2016. Thus, at the time Colony negotiated the settlement, the Taylor action had been filed only for approximately four months, and Colony’s declaratory-judgment action against Omega remained pending. In civil cases, the purpose of courts is to “extend aid to those who have not been able by lawful means to aid themselves, and relief is not available to those who have neglected to take care of their interests.” Harragill, 182 So.2d at 223. Here, Colony had the option to pursue its declaratory-judgment action before it paid the Taylor settlement. Instead, approximately four months after the Taylor actions was filed, Colony negotiated and agreed to pay the settlement. Thus, pursuant to this Court’s precedent, the Colony settlement lacked compulsion.

*6 ¶17. Colony argues that it made “an uncommon decision in our modern litigious society” to protect and defend Omega under a reservation of rights, quoting the Court of Appeals in Gray Properties, LLC v. Utility Constructors, Inc., 168 So.3d 1164 (Miss. Ct. App. 2014). In Gray Properties, however, the issue of compulsion was not discussed. And although Colony argues that it was under a “solemn obligation to defend its insured,” as discussed above, Colony continually maintained that Omega was not its insured. “An insurance company’s duty to defend its insured is triggered when it becomes aware that a complaint has been filed which contains reasonable, plausible allegations of conduct covered by the policy. However, no duty to defend arises when the claims fall outside the policy’s coverage.” Minn. Life Ins. Co. v. Columbia Cas. Co., 164 So.3d 954, 970 (Miss. 2014) (emphasis added) (quoting Baker Donelson Bearman & Caldwell, P.C. v. Muirhead, 920 So.2d 440, 450-51 (Miss. 2006) ).

¶18. The critical distinction in this case is that if Colony continually maintained that it was not Omega’s insured, Colony did not act out of compulsion when it negotiated the settlement. Because Colony failed to pursue its legal remedies, we answer the first certified question in the negative.

II. Legally Liable
¶19. Because the first question is dispositive for purposes of the voluntary-payment doctrine, we find it unnecessary to answer the second certified question.

CONCLUSION
¶20. We find that an insurer does not act under compulsion if it takes the legal position that an entity purporting to be its insured is not covered by its policy but nonetheless pays a settlement demand in good faith to avoid potentially greater liability that could arise from a future coverage determination. Because the first certified question is dispositive, we decline to address the second certified question.

¶21. CERTIFIED QUESTION NO. 1: ANSWERED. CERTIFIED QUESTION NO. 2: DECLINED.

RANDOLPH AND KITCHENS, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. WALLER, C.J., NOT PARTICIPATING.
All Citations
— So.3d —-, 2019 WL 396894

Footnotes

1
Mississippi Rule of Appellate Procedure 20 provides,
[W]hen it shall appear to the Supreme Court of the United States or to any United States Court of Appeals that there may be involved in any proceeding before it questions or propositions of law of this state which are determinative of all or part of that cause and there are no clear controlling precedents in the decisions of the Mississippi Supreme Court, the federal court may certify such questions or propositions of law of this state to the Mississippi Supreme Court for rendition of a written opinion concerning such questions or propositions of Mississippi law. The Supreme Court may, in its discretion, decline to answer the questions certified to it.
M.R.A.P. 20(a).

2
Taylor’s estate did not name Accu-Fab as a p

Slips, Trips and Falls

Jonathan Masters Attorney
Jonathan Masters

Slips, Trips or Falls, The Real Law

Interrupting the news last night was a lawyer telling anyone who slips, trips or falls in a place of business or store to call so they can help you get you ‘the money you deserve.’ Having spent a good portion of the last 20 years handling these type of cases, typically referred to as premises liability lawsuits, I thought there was way too much left out of that commercial. According to the commercial any fall meant you could get a fat check. Life most things in life, there much more to this story.

Premises liability is a legal concept which establishes the duty owed to someone injured on a landowner’s property as a result of conditions or activities on the property. In Mississippi, premises liability is distinguished by the classification of the complaining party between:

• invitee,
• licensee, and
• trespasser.

To review these types of claims, you must first determine into which category they fall. A property owner has a different level of responsibility to the injured party, or claimant, depending on their status at the time.

1. WAS THE CLAIMANT AN INVITEE, LICENSEE, OR TRESPASSER?

TRESPASSER

A trespasser is “one who enters upon another’s premises without license, invitation or other right.” Hughes v. Star Homes, Inc., 379 So. 2d 301, 303 (Miss. 1980) (citing Kelley v. Sportsmen’s Speedway, Inc., 224 Miss. 632, 80 So. 2d 785 (1955). The Mississippi Supreme Court added that a trespasser enters another’s property “merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement or express or implied assurance of safety from the owner or person in charge.” Titus v. Williams, 844 So.2d 459 (Miss. 2003) (citing White v. Miss. Power & Light Co., 196 So.2d 343, 349 (Miss. 1967)).

Mississippi codified the definition of a trespasser in the 2016 legislative session. See, Miss. Code Ann. 95-5-31. This law defines trespasser as “a person who enters upon the property of another without permission and without an invitation, express or implied, or other legal right.”

EXAMPLES

A man left the lounge area of the Quarter Inn, a restaurant and lounge in Vicksburg, Mississippi, and climbed through an open window leading to an adjacent rooftop terrace. It was a small window, three feet off the ground and 24 inches by 32 inches. Further, a locked glass door with “NOT AN EXIT” stenciled on the glass was only four feet away from the window. The man fell through the rooftop approximately twenty feet to the ground. The Court noted that he was an invitee at the time he entered the Quarter Inn, however, he became a trespasser when he climbed onto the rooftop terrace. Leffler v. Sharp, 891 So.2d 152 (Miss. 2004).

The local Parent Teacher Association was holding a Winter Carnival at East Tate Elementary School. Anthony Gammel planned on attending the Winter Carnival and parked across the street from the school in the school’s bus parking lot. Anthony was struck by a motorist and killed as he attempted to walk across the roadway to the school. The Court noted the bus parking lot was limited to bus parking only and not used as parking for the general public. The Court held that Anthony was a trespasser on the school’s property when he chose to park in the bus parking lot. Additionally, the Court noted that Anthony lost his status as a trespasser the moment he stepped off the bus parking lot onto the public roadway, and thus was unable to establish any duty owed at the time of the accident by the school. Gammel v. Tate County School District, 995 So.2d 853 (Miss.Ct.App. 2008).

LICENSEE

“A licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner…” Little v. Bell, 719 So. 2d 757, 760 (Miss. 1998) (quoting Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978)).

A “social guest” is classified as a licensee, or someone who enters a landowner’s or occupier’s premises for his own benefit, pleasure or convenience and with the implied permission of the owner or occupier. Grammar v. Dollar, 911 So.2d 619 (Miss.Ct.App. 2005).

EXAMPLES

Nuñez was visiting her family and riding an ATV when she crashed into a barbed-wire fence and thrown from the ATV. She alleged that the ATV’s steering and brakes failed and that the owner, Spino, was aware of the problems but failed to warn. In finding that Nuñez was a licensee, the Court noted that she was on Spino’s property riding his ATV for her own pleasure and benefit and was clearly a social guest. The Court further noted that although Nuñez on occasion does some work for Spino, she was merely visiting her family and was not performing any work on the date of the jury. Nuñez v. Spino, 14 So.3d 82 (Miss.Ct.App. 2009).

Plaintiff fell on a walkway and was injured while viewing a neighborhood outdoor Christmas display at the Millers’ residence. Every year the Millers decorated their property with lighting displays and other items symbolic of Christmas and allowed visitors to walk about the property and view the displays. The Millers did not charge admission or receive any form of monetary compensation from visitors to the property. In finding Daulton to be a licensee, the Court noted that the landowner did not receive any tangible form of consideration or obtain any business advantage from the visitors. Daulton v. Miller, 815 So.2d 1237 (Miss.Ct.App. 2001).

INVITEE

An invitee is a person who goes onto the premises of another at the express or implied invitation of the owner or occupant for their mutual advantage. Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978); Langford v. Mercurio, 254 Miss. 788, 183 So. 2d 150 (1966); Wright v. Caffey, 239 Miss. 470, 123 So. 2d 841 (1960). A mutual advantage is needed to create invitee status.

Moreover, the benefit received cannot be psychological but must be tangible. Rankin v. Matthews, 2015-CA-00553-COA (2016)(citing Daulton v. Miller, 815 So.2d 1237, 1240 (Miss. Ct. App. 2001)). In Rankin, the Court of Appeals specifically rejected the musician/plaintiff’s assertion that enjoying a free music concert in his garage was a “mutual benefit” such that would convert Rankin into an invitee. ¶13. See also, K.T. v. Klien Road Church of God, 2015-CA-00880-COA (2016)(Mississippi law does not recognize an intangible benefit as a benefit to the landowner in premises liability cases.)

EXAMPLES

A hired housekeeper has been found to be an invitee in determining the homeowner’s duty of care owed toward the housekeeper. Vaughn v. Ambrosino, 881 So.2d 847 (Miss.Ct.App. 2003).

Church members who do not exceed the scope of the church’s invitation are invitees while attending church for church services or other related functions. Clark v. Moore Memorial United Methodist Church, 538 So.2d 760 (Miss. 1989).

A customer who went to a laundromat as a patron and allegedly tripped and fell on a soft drink can in the parking lot would be considered a business invitee for purposes of premises liability. Ballard v. Watkins, 938 So.2d 298 (Miss.Ct.App. 2006).

A drive-thru restaurant patron that never placed an order because the drive-thru line was too long but instead decided to exit the drive-thru line in an effort to leave the restaurant’s premises was found to be an invitee. Magnusen v. Pine Belt Inv. Corp., 963 So.2d 1279 (Miss.Ct.App. 2007).

A teenager who was visiting his uncle at his uncle’s apartment complex and drowned while swimming in complex’s swimming pool was held to be an invitee. Handy v. Nejam, 2010-CA-01513-COA (2012). The Court noted that the teenager entered the premises as his uncle’s guest and was presumed to be an invitee under the law.

2. WHAT IS IT THAT YOU THE ARE REQUIRED TO DO ONCE THE STATUS IS DECIDED ?

TRESPASSER – STANDARD OF CARE

The duty owed to trespassers is merely to refrain from willfully or wantonly injuring him or her. Little v. Bell, 719 So.2d 757 (Miss. 1998) (citing Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097 (Miss. 1986)). An owner or occupier has no duty to protect a trespasser from conditions on the premises.

Traditionally, a homeowner is not liable for injuries resulting from passive negligence, which is “the failure to do something that should have been done.” Titus v. Williams, 844 So.2d 459 (Miss. 2003). However, Governor Bryant signed into House Bill 767 in 2016 which codifies the duties owed to a trespasser. It maintains the common law duty to avoid willful and wanton injury, but also establishes several situations with respect to children or an adult who is in a “position of peril”:


(2) A possessor of real property owes no duty of care to a trespasser, except a duty to refrain from willfully or wantonly injuring such a person.
(3) Notwithstanding subsection (2) of this section, a possessor of real property may be subject to liability for injury to a trespasser if:
(a) The possessor discovers the trespasser in a position of peril on the property and fails to exercise reasonable care to prevent injury to that trespasser; or
(b) The trespasser is a child injured by an artificial condition on the possessor’s property and all of the following apply:
(i) The place where the condition existed was one upon which the possessor knew or had reason to know that a child would be likely to trespass;
(ii) The condition is one of which the possessor knew or had reason to know and which the possessor realized or should have realized would involve an unreasonable risk of death or serious bodily harm to a child;
(iii) The injured child because of his or her youth did not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it;
(iv) The utility to the possessor of maintaining the condition and the burden of eliminating the danger was slight as compared with the risk to the child; and
(v) The possessor failed to exercise reasonable care to eliminate the danger or otherwise to protect the child.

Codified at Miss. Code Ann. §95-5-31.

The law also contains a final paragraph which appears to maintain the common law defenses and immunities. It is unclear exactly how this statute will be applied and what, if any, effect it will have on the ultimate outcome of a case other than perhaps broadening the “attractive nuisance” doctrine and extending a duty to a trespasser in peril. Nevertheless, subsection (4) specifically reserves the common law immunities and defenses:

(4) This section does not create or increase the liability of any possessor of real property and does not affect any immunities from or defenses to civil liability established by another section of the Mississippi Code of 1972 or available at common law to which a possessor of real property may be entitled.

EXAMPLES

The injured party, Bracknell, failed to present any evidence that the private property owner’s association wantonly or willfully injured him. Bracknell was the guest of a resident, however, his guest pass expired. The association did not enforce its rules and regulations to remove guests whose guest passes expired, and it did not enforce its restriction prohibiting guest boats on the private lake. Subsequently, another guest of one of the property owners whose pass had also expired was driving his personal boat, which was prohibited, and crashed into Bracknell causing injury. The Court found that the owner’s association’s lack of attention did not differ from ordinary negligence and did not rise to wanton or willful. Green v. Dalewood, 919 So.2d 1000 (Miss.Ct.App. 2005).

A septic tank had just been installed on a lot when a young child who lived adjacent to the lot climbed into the tank. As the child climbed from the tank the a 100-pound concrete cover fell on his head, killing him. The boy was found to be a trespasser and the development company was found not to have violated the standard of care owed to him, to wantonly or willfully injure him. Hughes v. Star Homes, Inc., 379 So.2d 301 (Miss. 1980). The Court then turned to the attractive nuisance doctrine and held that the defendants were entitled to a peremptory instruction because there was nothing inherently dangerous about the septic tank and thus the attractive nuisance doctrine did not apply. Id. at 305.

LICENSEE – STANDARD OF CARE

As with a trespasser, a landowner or occupier owes a licensee a duty to refrain from willfully or wantonly injuring him. Adams vs. Fred’s Dollar Store, 497 So.2d 1097, 1100 (Miss. 1986).

EXAMPLES

In Doe v. Jameson Inn, Inc., a minor female who was the guest of a guest of a registered guest entered the hotel for the express purpose of smoking marijuana. 56 So.3d 549 (Miss. 2011). She was subsequently raped in the hotel room. In finding that the minor was not an invitee, the Court noted that the element of mutual benefit was lacking because the hotel received no benefit by virtue of the minor’s child’s presence on the premises. Id. at 555.

In Turnipseed v. McGee, the Court held that it is the landlord’s duty to exercise reasonable care to keep safe the areas of the premises over which he retains control, and if negligent, and “injury results to a tenant or to a person there in right of the tenant, he is liable in tort.” 236 Miss. 159, 109 So.2d 551, 554 (Miss. 1959).

Relying on Turnipseed, the Court in Lucas v. Miss Housing Authority No. 8 held that an invited guest of an apartment tenant was an invitee to the apartment complex when he was on the premises to use the swimming pool in the common area. 441 So.2d 101 (Miss. 1983). The Court stated that “[i]t would be unconscionable to establish a principle of law that [the apartment complex] owed to the six-year-old child of a tenant the duty to use reasonable care not to injure him and, yet, owed to his six-year-old invited guest, swimming in the same pool, only the duty not to willfully or wantonly injure him.” Id. at 103. See also Doe v. Mississippi State Fed’n of Colored Women’s Club Housing for the Elderly in Clinton, Inc. 941 So.2d 820 (Miss.Ct.App. 2006). Again, in relying on the language expressed in Turnipseed and restated in Lucas, a minor was held to be an invitee by virtue of her occasional weekend visits with her father, who was a tenant of the subject apartment complex.

However, compare the above cases with Price v. Park Management, Inc., where the tenant of an apartment complex and his guest were attacked in the tenant’s apartment. 831 So.2d 550 (Miss.Ct.App. 2002). The Court held that the duty owed to the tenant was to keep the premises in a reasonably safe condition, but the duty owed to the guest of the tenant was that of a trespasser, to refrain from wantonly or willfully injuring him. Id. at 551. The Court noted that it is “well settled that social guests of the tenant are owed no special duty by the landlord, but merely the duty owed by the landlord to trespassers that the landlord not wantonly or willfully injure the guest.” Id. (citing Lucas v. Buddy Jones Ford Lincoln Mercury, 518 So.2d 646, 647 (Miss. 1988)).

INVITEE – STANDARD OF CARE

An invitee is owed the highest duty of care. A landowner or occupier must provide a premise that is reasonably safe and when not reasonably safe to warn hidden dangers or perils, not in plain and open view. Mayfield v. Hairbender, 903 So.2d 733 (Miss. 2005), noted there is a two-part test requiring separate inquiries: (1) whether the owner kept the premises reasonably safe, and (2) whether the owner warned of hidden dangers of which the owner knew or, in the exercise of reasonable care, should have known. Id. at 738. Breaching either duty supports a claim of negligence. Id.

EXAMPLES

The injured party, an invitee, fell in Home Depot. However, she did not know what caused her to fall. She could only speculate that a pallet or wood piece may have caused her to slip and/or trip, and such speculation contradicted her deposition testimony that she did not know what caused her fall. The Court found that no proof was presented that the injury was the result of negligence by Home Depot and that Home Depot had no knowledge of a dangerous condition. Rod v. Home Depot USA, Inc., 931 So.2d 692 (Miss.Ct.App. 2006).

The Court held it was a question of fact for a jury whether or not Holiday Inn knew or should have known of a loose mirror in its bathroom that subsequently fell and injured Pigg’s minor son an invitee, when he closed the bathroom door on which the mirror hung. Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197 (Miss. 2008).

A hotel guest slipped on a rubber shower mat when exiting the shower. He claimed the mat twisted or slipped causing him to fall. The Court found there was no evidence of a dangerous condition or that the defendant had any knowledge of a dangerous condition. Stanley v. Boyd Tunica, Inc., 29 So.3d 95 (Miss.Ct.App. 2010). A “property owner cannot be found liable for the plaintiff’s injury where no dangerous condition exists.” Id. at 97-98 (citing Delmont v. Harrison County Sch. Dist., 944 So.2d 131, 133 (Miss.Ct.App. 2006)).

Skating rink did not breach a duty owed to its patron that allegedly tripped and fell over a toy while skating. She claimed the toy was thrown onto the floor from the adjacent arcade. However, no evidence was presented that the skating rink employees threw the toy or had any knowledge that the toy was on the skating rink floor. Sullivan v. Skate Zone, Inc., 946 So.2d 828, 832 (Miss.Ct.App. 2007). The Court rejected the “mode of operation” theory of premises liability, which holds that “when an owner of a self-service establishment has actual notice that his mode of operation creates certain risks of harm to customers, and those risks are foreseeable, it is not necessary for the plaintiff to prove notice of the hazard that caused the injury.” Id. (quoting Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 466-67 (Miss.Ct.App. 2003)).

But note, the Mississippi Court of Appeals ruling in OIC-Lula, Inc. v. Rueben Smartt, 2014-CA-01459-COA (2016), noting the placement of a wet-floor sign twenty minutes before a fall was not sufficient warning even though Plaintiff walked through that area because when he did, the floor was not wet.

Status Definition Duty Owed

Trespasser Enters property without license, invitation or other right. Refrain from willful or wanton injury (Unless “in peril” or a child injured by an artificial condition – see above)
Licensee Enters property for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner Refrain from willful or wanton injury
Invitee Enter property with express or implied invitation of the owner or occupant for their mutual advantage Provide a reasonably safe premise and when not reasonably safe to warn only where there is hidden danger or peril that is not plain and open view

There is much more to making a claim for a slip, trip or fall before someone has to issue a check. If your business has been sued or you’d like a review of your business’s premises and procedures before someone’s hurt and calls that lawyer I watched on T.V. last night, call Jonathan Masters at Holcomb Dunbar Attorneys to discuss your issues. 662.234.8775.

Cellphone-location Data to Prosecute Accused for the Drive-by Slaying

It’s always interesting to me how the law continues to address and mold itself to “new” technologies.

From Courthouse News: The Ninth Circuit on Monday signaled it will likely allow federal prosecutors to use a San Francisco man’s cellphone-location data to prosecute him for the drive-by slaying of his young sister’s pimp.

The court’s three-judge panel suggested it would rule against the brother, Antonio Gilton, despite Gilton’s insistence that the data allegedly placing him in the area of the 2012 murder just before it occurred was obtained by San Francisco police via an illegal search warrant.

A ruling against Gilton would seemingly place the Ninth Circuit at odds with the Supreme Court’s landmark 2018 ruling in Carpenter v. United States. There, the high court held that police must have a valid warrant to obtain cellphone-location data, which shows which cell towers a person’s phone connected to during a specific period of time.

But the Supreme Court held in 2011 in another case, Davis v. United States, that evidence obtained through searches conducted in good faith – or based on appellate precedent – is admissible in criminal trials, even if the evidence was obtained illegally.

“Let’s suppose for purposes of this argument that I completely agree with you, that the magistrate [judge] should not have signed this warrant,” U.S. Circuit Judge Jay Bybee said in Monday’s hearing, addressing Gilton’s attorney Mark Goldrosen. “What do we do with the fact that the police went to the trouble of drafting a series of warrants, trying to make sure they crossed all of their Ts and dotted all of their Is, didn’t do so as skillfully as we, on reflection years later, would like; what makes this not done in good faith?”

The case stretches back to June 2012, when city prosecutors charged Gilton’s parents, Barry Gilton and Lupe Mercado, with the murder of Compton-area gang member Calvin Sneed. Sneed, 22, had begun a relationship four months earlier with the couple’s 17-year-old daughter upon her arrival in Los Angeles to live with Antonio Gilton. Sneed became her pimp soon after.

In the early morning hours of June 4, 2012, Sneed was gunned down in his car as he arrived at Gilton’s and Mercado’s Bayview neighborhood home to pick up their daughter, identified in court records only as L.G. According to prosecutors, Sneed died of a gunshot wound to his forehead, fired by an unknown passenger in a silver SUV that had pulled up alongside him.

San Francisco police suspected the Gilton family in the murder, and obtained a search warrant from a state magistrate judge for the seizure of cellphone-location data for both Barry and Antonio Gilton. According to federal prosecutors, the data shows Antonio Gilton had been in the area around Meade and Le Conte Avenues where the shooting occurred, leading them to conclude he was either involved in the murder or had valuable information about the perpetrators.

Both Gilton men, Mercado and several others were subsequently charged in federal court in San Francisco in connection with Sneed’s murder.

But in February 2016, U.S. District Judge William Orrick III granted Antonio Gilton’s motion to suppress his cellphone-location data, reasoning the warrant’s affidavit hadn’t established probable cause justifying a search because it “hardly mention[ed]” him. Orrick also concluded the good-faith exception to the exclusionary rule, which bars the use of evidence in a criminal trial obtained illegally, didn’t apply to Gilton’s case.

On Monday, the appellate panel appeared to reject Orrick’s good-faith finding.

Bybee, a George W. Bush appointee, suggested that even if the magistrate issued the warrant without probable cause, the police still acted on the warrant in good faith, thereby permitting the use of Gilton’s cellphone data at trial.

The suggestion prompted Goldrosen to accuse a San Francisco police sergeant of having “suckered” the magistrate into issuing the warrant without probable cause, and that the good-faith exception established by the Supreme Court in 1984 in United States v. Leon is therefore not applicable.

“You really believe [the police sergeant] didn’t have probable cause and then went to a magistrate and asked for it? That’s a pretty strong indictment of a police officer,” replied Senior U.S. Circuit Judge J. Clifford Wallace, a Nixon appointee.

Wallace set up the core question – can a “reasonable” police officer conclude from the affidavit that, for example, L.G.’s family plotted Sneed’s murder and that L.G. and Antonio Gilton were closely involved, and can the officers act “reasonably” under these circumstances?

“We wish we had lawyers to write these out, but it never happens that way,” Wallace said. “It just seems to me you’re asking a little more than these cases do for what a reasonable police officer might do under these circumstances,” he said, referring to cases like Leon.

U.S. Circuit Judge M. Margaret McKeown wanted to know if the Stored Communications Act “effectively let the officers off the hook here.”

Enacted by Congress in 1986, the Stored Communications Act authorizes telephone companies to disclose call records and cellphone-location data to law enforcement either via a warrant or a court order.

A Clinton appointee, McKeown seemed to reject as unsound Goldrosen’s reply that it didn’t in part because police “did not get an order pursuant to the Stored Communications Act.”

On rebuttal, Justice Department attorney Daniel Lerman argued that San Francisco police “went above and beyond” the requirements of the Stored Communications Act by seeking a warrant. He said the officers satisfied Leon’s good-faith exception, noting five appellate courts had held by the time of Sneed’s murder that no warrant was required to obtain cellphone-location data, and that the rulings and the officers’ actions had occurred long before Carpenter.

“I find it hard to believe that there is no colorable argument for probable cause when you have five courts of appeals reaching the very same conclusions here,” Lerman said. “Here we have officers going above and beyond; they got a warrant when they didn’t need to do so, statute didn’t require them to do so, case law didn’t require them to do so. I think it would be perverse under the motivations of the exclusionary rule to punish the officers for going above and beyond what was required for seeking a warrant.”

The panel concluded the hearing after about an hour of arguments and took the case under submission.

According to media reports, L.G.’s parents turned to law enforcement for help when the girl rebuffed their pleas to leave Sneed. They filed police reports in Culver City and Compton in the Los Angeles area, but the reports were reportedly ignored.

The Los Angeles Police Department and the Los Angeles County Sheriffs’ Department did not respond on Monday to requests for comment or to confirm the existence of the reports.

California is one of the top destinations in the United States for human trafficking, according to a 2016 report published by the Los Angeles County District Attorney. Gangs account for much of the “proliferation” of sex trafficking in the county, the report says.

According to the report, Los Angeles prosecuted 75 new sex trafficking cases in 2015 and 68 new cases involving 88 sex trafficking defendants in 2016. The year of Sneed’s murder, in 2012, the county prosecuted just 15 new sex trafficking cases.

“With heightened sensitivity to these crimes and the approval of Proposition 35, which eliminated barriers to prosecuting human traffickers and toughened penalties, the caseload increased,” the report states.

Requests for comment or information regarding how many pimps have been prosecuted in Los Angeles and San Francisco in the last 10 years were not returned Monday.

According to a 2008 report published on the website of the U.S. State Department, pimps use a “grooming” process to gain the trust of their intended female victims, many of whom are runaways or have a history of sexual abuse.

The first step often involves developing a relationship with the victim – whom she comes to regard as her boyfriend – through the use of flattery, affection and gifts, according to the report. Victims are subsequently forced into performing sexual acts for the pimp’s friends and eventually into prostitution under threat of abuse or violence if they refuse.

Los Angeles prosecutors report having filed sex trafficking cases involving victims as young as 12.

Summary Judgment Win in Slip and Fall

Summary judgment win in a parking lot slip and fall lawsuit in Bolivar County Circuit Court.

slip and fall lawsuitPlaintiff filed suit against a Cleveland, Mississippi business following a slip and fall in its parking lot.  Specifically, Plaintiff alleged that he fell over a finger-sized crack with an inch to a 1 ½ inches of separation.  Evidence reveled that Plaintiff crossed the business’ parking lot at least 26 times before the fall. Moreover, Mississippi Courts have repeatedly held that pavement cracks and changes in elevation are not dangerous conditions that can support a slip and fall lawsuit.  Knight v. Picayune Tire Svcs. Inc., 78 So.2d 356 (Miss. App. 2011).  Indeed, “Mississippi has long recognized that normally encountered dangers such as curves, sidewalks, and steps are not hazardous conditions.  Often [such pathways] contain cracks and changes in elevation; and as such, they do not become hazardous conditions simply because they contain minor imperfections or defects.”  Knight v. Picayune Tire Services, Inc., 78 So. 3d 356 (Miss. App. 2011). See, e.g., City of Greenville v. Laury,172 Miss 118, 159 So. 121, 122 (1935).

In fact, there are at least 17 Mississippi appeal’s court opinions rejecting slip and fall actions over cracks in parking lots and sidewalks:

  • Three-inch depression in a sidewalk is not unreasonably dangerous.  City of Meridian v. Crook, 69 So. 182 (Miss. 1915)(To hold otherwise “would be equivalent to holding that sidewalks in the residence portion of our cities must not deviate three inches from a perfectly smooth surface … The practical result rendering municipalities insurers of the safety of pedestrians.”  Id. at 184).
  • Crack in side walk large enough to catch the heel of a pedestrian’s shoe was not unreasonably dangerous.  Rowe v. City of Winona, 159 So.2d 282 (Miss. 1964), aff’g directed verdict.
  • Seven and One-half inch high side walk crack was not unreasonably dangerous.  Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473 (Miss. 1967).
  • Differential between sidewalk sections of three to 4 inches are not unreasonably dangerous.  City of Biloxi v. Schamback,157 So.2d 386 (Miss. 1963).
  • An uneven concrete gap in parking a lot was not unreasonably dangerous.  Penton v. Boss Hogg Catfish Cabin, LLC,42 So.3d 1208 (Miss. Ct. App. 2010), Aff’g summary judgment.
  • One-inch elevation of a sidewalk did not create a dangerous condition.  Bond v. City of Long Beach, 908 So.2d 879 (Miss. Ct. App. 2005).
  • A crevice in the street stretching a half-inch to 3 inches by 18 inches to 2 feet was not enough to make a street unsafe.  City of Greenville v. Laury, 159 So. 121 (Miss. 1936)(Cited with approval in Knight v. Picayune Tire Svcs. Inc., 78 So.2d 356 (Miss. App. 2011)).
  • Elevation change in homeowners’ driveway did not create an unreasonably dangerous condition to hold homeowners’ liable for a fall in their driveway.  Ringo v. Wilson, 2016 WL 612093.
  • Imperfections to a parking lot are generally not considered unreasonably dangerous conditions.  First Nat’l Bank of Vicksburg v. Cutrer, 214 So.2d 265 (Miss. 1968).
  • Cracks on the edge of a concrete riser are not unreasonably dangerous condition.  First Nat’l Bank of Vicksburg v. Cutrer, 214 So.2d 465 (Miss. 1968).
  • A “seam” creating an uneven surface in an asphalt parking lot is not a dangerous condition.Knight v. Picayune Tire Svcs. Inc., 78 So.2d 356 (Miss. App. 2011)).
  • Hole between sidewalk sections covered by grass not unreasonably dangerous.  City of Meridian v. Raley, 118 So.2d 342 (Miss. 1960).
  • Threshold 3/4 of an inch, not unreasonably dangerous such that a slip and fall claim can be maintained.  McGovern v. Scarborough, 566 So.2d 1225 (Miss. 1990).
  • 3 ½ inch wide and 2 inches deep crackthat caught Wal-Mart customer’s heel not a dangerous condition. Parker v. Walmart Stores, Inc., 267 F. App’x 724 (5thCir. 2008) (granting summary judgment as crack was not a dangerous condition under Mississippi law).
  • 2 inches wide, 4.75 inches long, and 0.75 inches deep in restaurant’s sideway, not a dangerous condition.  Mack v. Waffle House Inc.,No. 1:06CV559, 2007 WL 1153116 (S.D. Miss. Apr. 18, 2007), (granting summary judgment, as the crack was not a dangerous condition so support slip and fall claim under Mississippi law).
  • 10 inches around and 1 ½ inches deep pothole in Burger King parking lot not a dangerous condition.  Quick v. Strategic Restaurants Acquisition Co., No. 3:12-cv-301, 2013 WL 1305583 (S.D. Miss. Mar. 28, 2013)(granting summary judgment.).
  • 1.5 to 1.75 inch indentation in parking lot at Wal-Mart that caught customer’s foot was not a dangerous condition as a matter of law. Chance v. Wal-Mart East L.P., No. 3:14-cv-363, 2015 WL 4496442 (S.D. Miss. July 23, 2015).

 

In addition, the Court found that even if the subject crack could somehow be deemed a dangerous condition, the Plaintiff’s numerous prior trips through the parking lot provided him sufficient notice of the parking lot’s condition.  The dismissal relied, in part, on the Mississippi Supreme Court’s opinion in Vaughn v. Ambrosino, 883 So.2d 1167 (Miss. 2004)which provides that:

“With respect to the [failure to warn claim], however, it would be strange logic that found it reasonable to allow a plaintiff to pursue a [slip and fall] claim against a defendant for failure to warn of an open an obvious danger. One would struggle, indeed, to justify the need to warn a plaintiff of that which was open an obvious. Stated differently, a warning of an open and obvious danger would provide no new information to the plaintiff. Stated still another way, a thing warned of is either already known to the plaintiff, or it’s not. If it’s already known to the plaintiff, then the warning serves no purpose. If it is not already known to the plaintiff, then the thing warned of was not open and obvious in the first instance. Thus, an invitee may not recover for failure to warn of an open and obvious danger.”

Holcomb Dunbar attorneys Jonathan Masters and Josh Moore presented the successful arguments.

 

Holcomb Dunbar Opens New Jackson Office

 

Jonathan Masters Jackson MS office

Holcomb Dunbar Attorneys is pleased to announce the opening of its new Jackson, Mississippi office expanding its services to the firm’s regional and national clients throughout central and south Mississippi. 

“We have served the Jackson, Mississippi area for many years.  By opening this new office, however, we hope to better serve our central and south Mississippi clients from the State’s capital.”

Holcomb Dunbar is a full-service, regional law firm offering services in Mississippi, Tennessee and Alabama.  The firm focuses on representing individuals and companies in the courtroom.  In addition to its robust civil litigation practice, the firm provides a full range of services in commercial transactions and litigation, real estate, family and domestic matters, workers compensation, product’s liability, professional liability, white collar criminal defense and mass-tort defense.

In addition, Holcomb Dunbar is a member of TAGlaw, a worldwide alliance of law firms.  With 140 member firms based

 

in nearly 100 countries, TAGlaw is the premier global network of independent law firms whose success is driven by broad, deep, local relationships all over the world.  The TAGlaw alliance enables Holcomb Dunbar to use its local expertise to deliver highly effective legal solutions while drawing upon the collective wisdom and experience of other member firms within the United States and around the world as needed.

Origins of Legal Contingency Agreements

Contingency Fee Agreements

No fee unless we recover for you” … “The no fee promise” … “No charge unless we win!”

We see and hear these and similar ads daily. But where did these arrangements come from? And how did they develop into the wide-spread use that we see and hear constantly?  Thanks to the Professor Peter Karsen’s 1998 article, Enabling the Poor to Have Their Day in Court: The Sanctioning of Contingency Free Contracts, a History to 1940, we have a bit of an answer.

The typical legal contingency fee agreement is a contract in which the fees are payable only if there is a favorable result.  Legal contingency fee agreements are typically calculated as a percentage of the client’s recovery through a settlement or trial verdict.  And if there is no settlement or verdict, the attorney and client recovery nothing.

Contingency fee-like agreements trace their roots to thirteenth century England where the practice of third parties “financing” litigation, called champerty, was deemed illegal.  The prohibition originally sought to stop wealthy individuals from financing litigation against competitors in an effort to take their land and property to increase their own wealth through a proxy. These prohibitions, however, had the ultimate effect of limiting the lower classes access to the courts.  Indeed, without the means to pay an attorney the poor where without a means to effectively enforce their rights.

Even today, English courts manage lawyer funded litigation differently than the U.S.  English solicitors typically enter what known as a “conditional fee agreement.”  If the case is won, the solicitor may recover a nominal hourly fee, plus a “success fee” that is be no greater than 100 percent of the nominal fee.

From the beginning, attitudes in America were quite different.  Indeed, America’s founders had the radical notion that the criminally accused had a right to counsel which was preserved in the Constitution’s Sixth Amendment. England didn’t adopt a similar right to counsel for another 50 years.

The belief in a right to an attorney and access to courts filtered into the civil justice system as well.  This notion pushed American courts to reject England’s “loser pays” system removing the Sword of Damocles over a losing party of potentially having to pay the winner’s attorney’s fees. And gradually, the same sentiment advanced the use and acceptance of contingency agreements.

In 1813, Pennsylvania Justice Hugh Henry Brackenridge wrote “parties not monied” sometimes “stipulate for something out of what was recoverable,” with attorneys “taking what are called contingency fees.”  Though the practice was still not accepted by all courts and attorneys of the day, notable attorneys such as Henry Clay and Daniel Webster worked under contingency agreements.

Reported cases from across the country in the early 1800s illustrate America’s growing acceptance of contingency agreements though still tinged with some skepticism.  For example, in 1823 arguing before the Kentucky Supreme Court an attorney in Rust v. LaRue, noted “[a client] may not have anything else to give, and without the aid of the matter in this contest, he can never sue for his right, not having otherwise the means to employ counsel…” By the mid-1800s these agreements continued to gain approval.  InLytle v. State, Arkansas Justice Scott in 1857 expressed the general sentiment spreading across the county that “rights are nothing without the means of enforcing them.”  And, around the same time, state legislatures were redefining the broad scope of champerty to provide for contingency fee agreements.

And by 1875, U.S. Supreme Court Justice Morrison Waite in Write v. Tebbitsnoted the wide-spread use and acceptance stating that contingency fee agreements ‘legitimate and honorable.’

Today, such contracts are common and permeate the legal community.  While still not practical or available to all matters, for better or worse, they remain entrenched in our legal system.