Attorney Resources

Attorney Resources

Mississippi Rules of Civil Procedure in searchable .pdf format.

Mississippi Rules of Civil Procedure

Mississippi Civil Cover Sheet in fillable .pdf form.

Mississippi Civil Cover Sheet 2017

Sample Pre-Trial Order for State Court in Mississippi

Sample Pretrial Order

Sample Personal Injury Case Checklist

Sample Checklist for Personal Injury Case

Commonly Uses Code Sections

Title 41 – PUBLIC HEALTH (Mississippi)

Chapter 9 – REGULATION OF HOSPITALS; HOSPITAL RECORDS

HOSPITAL RECORDS — USE IN TRIALS AND ADMINISTRATIVE HEARINGS

  • 41-9-119 – Evidence of reasonableness of medical expenses

Proof that medical, hospital, and doctor bills were paid or incurred because of any illness, disease, or injury shall be prima facie evidence that such bills so paid or incurred were necessary and reasonable.

Universal Citation: MS Code § 41-9-119 (2013)


TITLE 11 – CIVIL PRACTICE AND PROCEDURE (Mississippi)

Chapter 1 – Practice and Procedure Provisions Common to Courts.

Limitations on charges permitted for photocopying patients’ records by medical provider

  • 11-1-52. Limitations on charges permitted for photocopying patients’ records by medical provider; physicians to make reasonable charges for depositions; limitations on charges permitted for execution of patient-requested medical record affidavit by medical provider; medical providers to comply with HIPAA.

(1)  Any medical provider or hospital or nursing home or other medical facility shall charge no more than the following amounts to patients or their representatives for photocopying any patient’s records: Twenty Dollars ($20.00) for pages one (1) through twenty (20); One Dollar ($1.00) per page for the next eighty (80) pages; Fifty Cents (50›) per page for all pages thereafter. Ten percent (10%) of the total charge may be added for postage and handling. Fifteen Dollars ($15.00) may be recovered by the medical provider or hospital or nursing home or other medical facility for retrieving medical records in archives at a location off the premises where the facility/office is located.

(2)  A physician shall only charge normal, reasonable and customary charges for a deposition related to a patient that the physician is treating or has treated.

(3)  Any medical provider, hospital, nursing home or other medical facility shall charge no more than Twenty-five Dollars ($25.00) for executing a medical record affidavit, when the affidavit is requested by the patient or the patient’s representative.

(4)  In charging the fees authorized under subsection (1) of this section, the medical provider, hospital, nursing home or other medical facility shall comply with the federal Health Insurance Portability and Accountability Act (HIPAA).

Universal Citation: MS Code § 11-1-52 (2013)


28 U.S. Code § 1332 – Diversity of citizenship; amount in controversy; costs (Federal)

(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;

(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and

(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.

(b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.

(c) For the purposes of this section and section 1441 of this title—

(1) a corporation shall be deemed to be a citizen of every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of—

(A) every State and foreign state of which the insured is a citizen;

(B) every State and foreign state by which the insurer has been incorporated; and

(C) the State or foreign state where the insurer has its principal place of business; and

(2) the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent, and the legal representative of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent.

(d)

(1) In this subsection—

(A) the term “class” means all of the class members in a class action;

(B) the term “class action” means any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action;

(C) the term “class certification order” means an order issued by a court approving the treatment of some or all aspects of a civil action as a class action; and

(D) the term “class members” means the persons (named or unnamed) who fall within the definition of the proposed or certified class in a class action.

(2) The district courts shall have original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which—

(A) any member of a class of plaintiffs is a citizen of a State different from any defendant;

(B) any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or

(C) any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state.

(3) A district court may, in the interests of justice and looking at the totality of the circumstances, decline to exercise jurisdiction under paragraph (2) over a class action in which greater than one-third but less than two-thirds of the members of all proposed plaintiff classes in the aggregate and the primary defendants are citizens of the State in which the action was originally filed based on consideration of—

(A) whether the claims asserted involve matters of national or interstate interest;

(B) whether the claims asserted will be governed by laws of the State in which the action was originally filed or by the laws of other States;

(C) whether the class action has been pleaded in a manner that seeks to avoid Federal jurisdiction;

(D) whether the action was brought in a forum with a distinct nexus with the class members, the alleged harm, or the defendants;

(E) whether the number of citizens of the State in which the action was originally filed in all proposed plaintiff classes in the aggregate is substantially larger than the number of citizens from any other State, and the citizenship of the other members of the proposed class is dispersed among a substantial number of States; and

(F) whether, during the 3-year period preceding the filing of that class action, 1 or more other class actions asserting the same or similar claims on behalf of the same or other persons have been filed.

(4) A district court shall decline to exercise jurisdiction under paragraph (2)—

(A)

(i) over a class action in which—

(I) greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed;

(II) at least 1 defendant is a defendant—

(aa) from whom significant relief is sought by members of the plaintiff class;

(bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and

(cc) who is a citizen of the State in which the action was originally filed; and

(III) principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and

(ii) during the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons; or

(B) two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed.

(5) Paragraphs (2) through (4) shall not apply to any class action in which—

(A) the primary defendants are States, State officials, or other governmental entities against whom the district court may be foreclosed from ordering relief; or

(B) the number of members of all proposed plaintiff classes in the aggregate is less than 100.

(6) In any class action, the claims of the individual class members shall be aggregated to determine whether the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs.

(7) Citizenship of the members of the proposed plaintiff classes shall be determined for purposes of paragraphs (2) through (6) as of the date of filing of the complaint or amended complaint, or, if the case stated by the initial pleading is not subject to Federal jurisdiction, as of the date of service by plaintiffs of an amended pleading, motion, or other paper, indicating the existence of Federal jurisdiction.

(8) This subsection shall apply to any class action before or after the entry of a class certification order by the court with respect to that action.

(9) Paragraph (2) shall not apply to any class action that solely involves a claim—

(A) concerning a covered security as defined under 16(f)(3) [1] of the Securities Act of 1933 (15 U.S.C. 78p(f)(3) [2]) and section 28(f)(5)(E) of the Securities Exchange Act of 1934 (15 U.S.C. 78bb(f)(5)(E));

(B) that relates to the internal affairs or governance of a corporation or other form of business enterprise and that arises under or by virtue of the laws of the State in which such corporation or business enterprise is incorporated or organized; or

(C) that relates to the rights, duties (including fiduciary duties), and obligations relating to or created by or pursuant to any security (as defined under section 2(a)(1) of the Securities Act of 1933 (15 U.S.C. 77b(a)(1)) and the regulations issued thereunder).

(10) For purposes of this subsection and section 1453, an unincorporated association shall be deemed to be a citizen of the State where it has its principal place of business and the State under whose laws it is organized.

(11)

(A) For purposes of this subsection and section 1453, a mass action shall be deemed to be a class action removable under paragraphs (2) through (10) if it otherwise meets the provisions of those paragraphs.

(B)

(i) As used in subparagraph (A), the term “mass action” means any civil action (except a civil action within the scope of section 1711(2)) in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiffs’ claims involve common questions of law or fact, except that jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdictional amount requirements under subsection (a).

(ii) As used in subparagraph (A), the term “mass action” shall not include any civil action in which—

(I) all of the claims in the action arise from an event or occurrence in the State in which the action was filed, and that allegedly resulted in injuries in that State or in States contiguous to that State;

(II) the claims are joined upon motion of a defendant;

(III) all of the claims in the action are asserted on behalf of the general public (and not on behalf of individual claimants or members of a purported class) pursuant to a State statute specifically authorizing such action; or

(IV) the claims have been consolidated or coordinated solely for pretrial proceedings.

(C)

(i) Any action(s) removed to Federal court pursuant to this subsection shall not thereafter be transferred to any other court pursuant to section 1407, or the rules promulgated thereunder, unless a majority of the plaintiffs in the action request transfer pursuant to section 1407.

(ii) This subparagraph will not apply—

(I) to cases certified pursuant to rule 23 of the Federal Rules of Civil Procedure; or

(II) if plaintiffs propose that the action proceed as a class action pursuant to rule 23 of the Federal Rules of Civil Procedure.

(D) The limitations periods on any claims asserted in a mass action that is removed to Federal court pursuant to this subsection shall be deemed tolled during the period that the action is pending in Federal court.

(e) The word “States”, as used in this section, includes the Territories, the District of Columbia, and the Commonwealth of Puerto Rico.


28 U.S. Code § 1441 – Removal of civil actions (Federal)

(a) Generally.—

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
(b) Removal Based on Diversity of Citizenship.—
(1) In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded.
(2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

(c) Joinder of Federal Law Claims and State Law Claims.—

(1) If a civil action includes—

(A) a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this title), and
(B) a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph (B).
(2) Upon removal of an action described in paragraph (1), the district court shall sever from the action all claims described in paragraph (1)(B) and shall remand the severed claims to the State court from which the action was removed. Only defendants against whom a claim described in paragraph (1)(A) has been asserted are required to join in or consent to the removal under paragraph (1).

(d) Actions Against Foreign States.—

Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown.

(e) Multiparty, Multiforum Jurisdiction.—

(1) Notwithstanding the provisions of subsection (b) of this section, a defendant in a civil action in a State court may remove the action to the district court of the United States for the district and division embracing the place where the action is pending if—

(A) the action could have been brought in a United States district court under section 1369 of this title; or
(B) the defendant is a party to an action which is or could have been brought, in whole or in part, under section 1369 in a United States district court and arises from the same accident as the action in State court, even if the action to be removed could not have been brought in a district court as an original matter.
The removal of an action under this subsection shall be made in accordance with section 1446 of this title, except that a notice of removal may also be filed before trial of the action in State court within 30 days after the date on which the defendant first becomes a party to an action under section 1369 in a United States district court that arises from the same accident as the action in State court, or at a later time with leave of the district court.
(2) Whenever an action is removed under this subsection and the district court to which it is removed or transferred under section 1407(j) [1] has made a liability determination requiring further proceedings as to damages, the district court shall remand the action to the State court from which it had been removed for the determination of damages, unless the court finds that, for the convenience of parties and witnesses and in the interest of justice, the action should be retained for the determination of damages.
(3) Any remand under paragraph (2) shall not be effective until 60 days after the district court has issued an order determining liability and has certified its intention to remand the removed action for the determination of damages. An appeal with respect to the liability determination of the district court may be taken during that 60-day period to the court of appeals with appellate jurisdiction over the district court. In the event a party files such an appeal, the remand shall not be effective until the appeal has been finally disposed of. Once the remand has become effective, the liability determination shall not be subject to further review by appeal or otherwise.
(4) Any decision under this subsection concerning remand for the determination of damages shall not be reviewable by appeal or otherwise.
(5) An action removed under this subsection shall be deemed to be an action under section 1369 and an action in which jurisdiction is based on section 1369 of this title for purposes of this section and sections 1407, 1697, and 1785 of this title.
(6) Nothing in this subsection shall restrict the authority of the district court to transfer or dismiss an action on the ground of inconvenient forum.

(f) Derivative Removal Jurisdiction.—

The court to which a civil action is removed under this section is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim.

Commonly Used Legal Resources & Citations

Center of Gravity Test for Choice of Law (Mississippi)

This Court utilizes the “center of gravity” test to determine whether Mississippi or Maryland law applies to the present situation. See Ford v. State Farm Ins. Co., 625 So. 2d 792, 794 (Miss. 1993); Boardman v. United Services Auto. Ass’n, 470 So. 2d 1024, 1031 (Miss. 1985). We have also applied Restatement § 188 to review choice of law questions in cases involving contracts, both express and implied. Id. at 1032. See also Crouch v. General Elec. Co., 699 F.Supp. 585, 592 (S. D.Miss. 1988); Richardson v. Clayton & Lambert Mfg. Co., 634 F.Supp. 1480, 1482-83 (N. D. Miss.1986).

Diversity Jurisdiction 28 U.S.C. § 1332(a). (Federal)

The jurisdiction of the United States District Courts is fixed by the Congress, its acts being in implementation of Article 3, Section 2 of the United States Constitution. See U.S. Const., art. 3, §§ 1, 2. The Constitution provides that the judicial power of the United States shall extend to controversies between citizens of different states. See U.S. Const., art. 3, § 2. Congress has authorized exercise of that power if the amount in controversy exceeds a specified amount, now $75,000. See 28 U.S.C. § 1332(a).

Resident Defendant Rule or Forum Defendant Rule (Federal)

28 U.S. Code § 1441 (b)(2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

Exception: (b)(2) provides the opportunity for resident defendants to remove to federal court before being served with the complaint. Discussions over the resident defendant rule often focus on the phrase “properly joined and served.” Many argue that this phrase provides resident defendants the opportunity to remove a case to federal court if the resident defendant has not yet been “properly joined and served.”

When Summary Judgment is Proper (Mississippi)

A summary judgment motion is properly granted when no genuine issues of material fact exist;  and the moving party is entitled to judgment as a matter of law.  M.R.C.P. 56(c);  Miller, 762 So.2d at 304.   The moving party has the burden of demonstrating that no genuine issues of material fact exist and the court must review all evidentiary matters before it in the light most favorable to the non-moving party.  Id. “An issue of fact may be present where there is more than one reasonable interpretation of undisputed testimony, where materially different but reasonable inferences may be drawn from uncontradicted evidentiary facts, or when the purported establishment of the facts has been sufficiently incomplete or inadequate that the trial judge cannot say with reasonable confidence that the full facts of the matter have been disclosed.  Id. at 305 (citing Dennis v. Searle, 457 So.2d 941, 944 (Miss.1984))

Standard of Review for Construction of Insurance Contracts ( Mississippi)

It is well-settled that the construction and application of insurance contract provisions present questions of law which this Court reviews de novo.  Radmann v. Truck Ins. Exchange, 660 So.2d 975, 977 (Miss.1995).   Equally well-settled is that this Court reviews summary judgment rulings de novo.  Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000).

Frivolous Lawsuits (Mississippi)

If the Court determines a frivolous lawsuit has been filed, the filing attorney and/or the Plaintiff may be required to pay the opposing parties litigation expenses including attorney’s fees. The Court will look to see if the Complaint was frivolous or done to harass or delay. See Miss. R. Civ. P. 11(b) and also see Litigation Accountability Act. Miss. Code Ann. § 11-55-5.

Household Exclusion for Liability Insurance Coverage (Mississippi)

In Lions v. Direct General Ins. Co, of Mississippi, 138 So. 3d 887 (Miss. 2014), the Court held an exclusion of a person that resided in the same household was void if the exclusion reduced coverage below the amount of State minimum required coverage. However, Miss. Code § 63-15-3(j) which went into effect on July 1, 2015 allows the liability policy to contain exclusions and limitations on coverage as long as the exclusions and limitations language or form has been filed with and approved by the Commissioner of Insurance.

This situation arises when the driver A is driving a vehicle owned and insured by B, and Driver A lives with Owner B, but is not a named driver on the policy, and has a wreck with Victim C and it is Driver A’s fault. Plaintiff’s Attorneys representing Victim C facing this situation where the insurance company denies liability coverage based on the household exclusion language in the policy should do the following: (a) look to see if Driver A has any other liability coverage, (b) confirm that Driver A did actually live in the same household at the time of the collision, or (c) does Victim C have Uninsured Motorist “UM” coverage.

The Household Exclusion is not a valid exclusion for UM policies.  Accordingly, an injured passenger may recover under a driver’s Uninsured Motorist (UM) policy where the household exclusion prevents recovery under the liability policy.  See Allstate Ins. Co. v. Randall, 753 F.2d 441 (5th Cir. 1985).

Family Immunity (Mississippi)

Family immunity was abolished in the case of Burns v. Burns, 518 So. 2d 1205 (Miss. 1998).

Parent-child immunity has been abolished in negligent operation of automobile cases where the child has not been emancipated.  See Smith v. Holmes, 921 So. 2d 283, 285 (Miss. 2005).

Parents may maintain suits against their children and vice versa. See  Ales v. Ales, 650 So. 2d 482, 487 (Miss. 1995).

When Indemnification is Proper (Mississippi)

In Mississippi, the historic rule governing implied indemnity among co-defendants is that, where one defendant’s liability is secondary as opposed to primary or is based on passive conduct as opposed to positive negligence, that party may be entitled, upon an “equitable consideration” to indemnity. Home Insurance Co. v. Atlas Tank Mfg. Co., 230 So. 2d 549, 551 (Miss. 1970).

In Touche Ross v. Commercial Union Ins., 514 So. 2d 315 (Miss. 1987), the Court expressly adopted Restatement (2d) of Torts § 552 which states: “One who, in the course of his business, profession or employment, or in any other transaction which he has a pecuniary interest, supplies false information for the guidance of others in their business transaction is subject to liability for pecuniary loss suffered by them by their justifiable reliance upon the information if he fails to exercise reasonable care or competence in obtaining or communicating information.”

Proof of Damages (Mississippi)

“It is absolutely incumbent upon the party seeking to prove damages to offer into evidence the best evidence available [on] each and every item of damage.” Eastland v. Gregory, 530 So. 2d 172, 174 (Miss. 1988).

Minor Settlements in Mississippi

A guardianship is not required for settlements of money or property valued at $25,000 or less, and the $25,000 amount refers to the gross amount and not the amount due the ward after payment of legal fees and expenses. The court may, in its discretion, require a guardianship in any case. § 93-13-211, MCA.

The court must conduct a hearing regarding settlement of the ward’s claim, and a witness on the ward’s behalf must be heard.  Union Chevrolet Co. v. Arrington, 138 So.2d 593 (Miss. 1932).

A final accounting is necessary at the cessation of the guardianship.  § 93-13-67 through -77, MCA.

Need to join ancillary 3rd parties such as DHS or Worker’s Compensation Commission?  § 93-13-59, MCA;  Mississippi Bar v. Moyo, 525 So.2d 1289 (Miss. 1988).

Minor Saving Clause in Mississippi
MS Code § 15-1-59 (2013)

If any person entitled to bring any of the personal actions mentioned shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the actions within the times in this chapter respectively limited, after his disability shall be removed as provided by law. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

Interpretation of Insurance Policy Language (Mississippi)

The interpretation of insurance policy language is a question of law.  Johnson v. Preferred Risk Auto. Ins. Co., 659 So.2d 866, 871 (Miss.1995).

Generally, under Mississippi law, when the words of an insurance policy are plain and unambiguous, the court will afford them their plain, ordinary meaning and will apply them as written.  Paul Revere Life Ins. Co. v. Prince, 375 So.2d 417, 418 (Miss.1979).

Under Mississippi law, ambiguous and unclear policy language must be resolved in favor of the insured.  Harrison v. Allstate Ins. Co., 662 So.2d 1092, 1094 (Miss.1995).

Provisions that limit or exclude coverage are to be construed liberally in favor of the insured and most strongly against the insurer.   Nationwide Mutual Ins. Co. v. Garriga, 636 So.2d 658, 662 (Miss.1994).

In Mississippi, “[an] act is intentional if the actor desires to cause the consequences of his act, or believes that the consequences are substantially certain to result from it.”  Coleman v. Sanford, 521 So.2d 876, 878 (Miss.1988).

MS Code § 1-3-27 (2017)

Definition of Minor (Mississippi)

The term “minor,” when used in any statute, shall include
any person, male or female, under twenty-one years of age.

Age of Majority in Mississippi is 21 years old.

MS Code §93-19-13 Removal of Disability of Minority

Persons eighteen years of age or older competent to contract in matters affecting personal property

All persons eighteen (18) years of age or older, if not otherwise disqualified, or prohibited by law, shall have the capacity to enter into binding contractual relationships affecting personal property. Nothing in this section shall be construed to affect any contracts entered into prior to July 1, 1976.
In any legal action founded on a contract entered into by a person eighteen (18) years of age or older, the said person may sue in his own name as an adult and be sued in his own name as an adult and be served with process as an adult.

Persons 18 years old or older may settle claims or bring a law suit for personal injuries (including car wrecks) in their own name in Mississippi. See Garrett v Gay, 394 So.2d 321 (Miss. 1981)

Rear-end Collision is Negligence as a Matter of Law

“As they correctly point out, when two vehicles are traveling in the same direction, the duty of avoiding collision generally rests with the driver of the following vehicle, and that driver is per se negligent if he runs into the leading vehicle absent any emergency or unusual conditions. . See Thomas v. McDonald, 667 So. 2d 594, 596 (Miss.1995)(holding that whether particular circumstances rise to level of emergency or unusual is jury question).
See Reese v. Summers, 792 So. 2d 992 (Miss. 2001)

The Made Whole Rules applies to certain Subrogation and not UM/UIM cases (Mississippi)

Hare was a subrogation case. We have defined subrogation as “`the substitution of one person in place of another, whether as a creditor or as the possessor of any rightful claim so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities. Words and Phrases Vol. 7, p. 6722.’ Trust Company v. Peters, 72 Miss. 105818 So. 497, 30 L.R.A. 829.” First Nat’l Bank of Jackson v. Huff, 441 So. 2d 1317, 1319 (Miss.1983). While we reaffirm our decision in Hare to stand for the proposition that the “made whole” rule may be appropriately applied to certain subrogation cases, we unhesitatingly state here that Hare did not overrule the long line of UM/UIM cases, many of which were discussed in Wise, which was decided more than four years after Hare. If we had intended such a result in Hare, we would have said so in express language overruling prior case law. Wise was not a subrogation case, and neither is today’s case.

[A]n insurer is entitled to enforce its contractual right of subrogation after the insured has been fully compensated, or “made whole,” for his total loss. This precludes the insured from recovering twice for some of his or her damages; therefore, the insurer is entitled to reimbursement from funds received by the insured from the third party when the insured receives more than the total of his or her loss. As stated by Professor Freedman, “the precise measure of reimbursement is the amount by which the sum received by the insured from the [third party], together with the insurance proceeds, exceeds the loss sustained and the expense incurred by the insured in realizing on his claim.” Warren Freedman, FREEDMAN’S RICHARDS ON THE LAW OF INSURANCE, v.2 § 12.6 (6th ed.1990).
Id. at 839-40 (emphasis added).

¶ 24. Franklin incurred over $124,000 in medical expenses, and Healthsource paid only $71,120.65 of those bills. Id. at 840. Before the issue of double recovery could arise, Franklin would have to recover in excess of $50,000 to be “made whole” for his medical expenses alone which does not even consider the amount of additional damages Franklin incurred that have been valued at over $400,000. Therefore, the Arkansas Supreme Court found that Franklin could not have enjoyed a double recovery.

¶ 25. Here both parties cannot be “made whole.” Hare endured pain and suffering in nasal surgery and now has a permanent facial scar. The State, through CENTRA, only paid $6,056.50 in medical expenses out of a total $8,667.50. Hare’s expert witnesses by affidavit stated a potential recovery of between $50,000.00 and $175,000.00. Thus, the $10,000.00 recovered by Hare cannot possibly be said to have “made him whole” or to have been a double recovery. Finally, the State Health plan itself states that the subrogation clause’s intent is to prevent a double recovery.

¶ 26. Additionally, in Nationwide Mutual Ins. Co. v. Garriga, 636 So. 2d 658 (Miss.1994), this Court answered the question of whether an insurer can contractually limit, credit or offset the amount of worker’s compensation benefits received by its insured to the extent the insured’s uninsured motorist coverage exceeds the statutory minimum required. There, we held that insurers are mandated by statute to provide uninsured motorist coverage up to the amount of liability insurance purchased when the insured so desires. In other words, insurers cannot reduce the value of uninsured motorist benefits by offsetting worker’s compensation benefits. Id. at 663. Persuaded by the reasoning in Garriga, we hold that the State is not entitled to recover a portion of Hare’s uninsured motorist benefits to offset payments to Hare under the State Health Plan.

¶ 27. For the reasons explained above, this Court adopts the “made whole” rule and holds 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. See generally, Warren Freedman, FREEDMAN’S RICHARDS ON THE LAW OF INSURANCE, v. 2 § 12.6 (6th ed.1990) citing Patterson, ESSENTIALS OF INS. LAW (1935), p. 122 (Subrogation is a windfall to the insurer [which] plays no part in rate schedules (or only a minor one).).

Made Whole Doctrine does not apply to Medicaid’s Subrogation Lien

When approving a minor’s settlement, the chancellor here denied the subrogation rights of the Mississippi Division of Medicaid (Medicaid), citing the “made whole” rule. But the made-whole rule only applies to an insurer’s contractual right to subrogation.1 Medicaid’s right to subrogation is not contractual. It is statutory.2 And the made-whole rule does not apply to statutory subrogation rights. Medicaid v Pittman, No.2014-SA-00765-COA (2015)

Alabama Attorney Resources

Alabama Tort Reform Link http://www.legalreforminthenews.com/Tort%20Profiles/AL_Tort_Laws.htm

Alabama Rules of Civil Procedure in searchable .pdf format.

Alabama Rules of Civil Procedure

Alabama Rules of Evidence in searchable .pdf format.

Alabama Rules of Evidence


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Injury Lawyers Mississippi & Alabama

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