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Pursuant to Mississippi law, the Division of Medicaid has “subrogation rights” (not a lien) in the proceeds of a tort judgment or settlement “to the extent of the Division of Medicaid’s interest on behalf of the recipient.” Miss. Code Ann. § 43-13-125(1). This subrogation interest is limited to payments made by the Division of Medicaid “as a result of injuries, disease or sickness caused under circumstances creating a cause of action in favor of the [Medicaid] recipient against a third party.” Id.
Under the statute creating the Division of Medicaid’s subrogation interest, Medicaid bears the burden of proving “the amount and correctness of its claim relating to the injury, disease or sickness” that was at issue in the underlying tort action. Miss. Code Ann. § 43-13-125(3).
Once Medicaid has borne its burden of proving which of its subrogation claims are “a result of” or “related to” the fault or alleged fault of the third party, this Court is to deduct “[t]he reasonable costs of collection, including attorney’s fees, as approved and allowed by the court”. Miss. Code Ann. § 43-13-125(2). The Court may also account for other factors in setting the amount of Medicaid’s recovery, including a “pro rata” share and the other interests traditionally committed to the Chancery Court in handling minor’s business. Miss. Code Ann. § 43-13-125(2)(b).
The Court must deny Medicaid’s subrogation interest entirely if no portion of the settlement at issue is a recovery of costs of medical care. Wos v. E.M.A. ex rel. Johnson, 2013 WL 1131709 at *1 (U.S. Mar. 20, 2013) (quoting Arkansas Dept. of Health & Human Servs. v. Ahlborn, 547 U.S. 268 (2006)).
Manual for Complex Litigation “MCL” – Federal Practice Guide https://public.resource.org/scribd/8763868.pdf
3M Products Liability Litigation, MDL No. 2885 – Master Docket No. 3:19md2885
Young v. BL Development Corp. D/B/A Harrah’s Casino Tunica and Veranda Hotel, Civil Action No. 3:19cv034-NBB-RP, :
It is well-settled that federal courts refer to state law for tolling rules just as they do for statutes of limitation. Wallace v. Keto, 549 U.S. 384 (2007). The broad language of the tolling provision cited by the plaintiff, Miss. Code Ann. § 15-1-57, undoubtedly applies under the circumstances of this case. It cannot be legitimately disputed that the automatic stay and injunction order at issue here prohibited and enjoined the plaintiff from commencing her action against the defendant. Though, as the defendant argues, the plaintiff could have petitioned the bankruptcy court for relief from the stay or order, the applicable tolling provision requires no such action. See Trustmark Nat’l Bank v. Pike County Nat’l Bank, 716 So. 2d 618 (Miss. 1998).
The court finds that the Mississippi tolling provision is applicable under the facts of this case. The result is that the limitations period was tolled during both the automatic stay and the period covered by the injunction order. Accordingly, the plaintiff’s complaint was timely filed, and the defendant’s motion to dismiss is not well taken and shall be denied.
“In removal practice, when a complaint does not allege a specific amount of damages, the party invoking federal jurisdiction must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount.” St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (citation omitted). “[B]are allegations of jurisdictional facts have been held insufficient to invest a federal court with jurisdiction.” Id. (citation, quotation marks, and brackets omitted).
The notice of removal instead contends that the plaintiff’s request for unspecified punitive damages is sufficient to satisfy the amount in controversy requirement. In recent years, however, at least three Judges in this District have “look[ed] more rigorously at the complaint’s factual allegations to determine whether the combination of compensatory and [unspecified] punitive damages could truly support a recovery above $75,000.” Evans v. Red Shield Admin., Inc. , No. 3:18-CV-464-CWR-FKB, 2018 WL 4288724, at *1 (S.D. Miss. Aug. 17, 2018) (collecting cases). Based on those decisions, the better-reasoned conclusion is that “an unspecified punitive damages demand is itself insufficient to meet the amount in controversy requirement.” Id. at *2.
Attorney Resources for Madison County Chancery Court updated guardianships and conservatorships forms. (January 1, 2020 Update). Forms are GAP ACT compliant and available for download in WordPerfect and PDF format. (Click Here)
Judge Robert G. Clark, III – Judge
Chancery Court Judge
Sub District One
Office: (662) 834-1285
Judge Cynthia Brewer – Senior Judge
Chancery Court Judge
Sub District Two
Office: (601) 855-5512
James C. Walker – Judge
Chancery Court Judge
Sub District Three
11th Chancery Court District Main Office
146 West Center Street
P.O. Box 404
Canton, MS 39046
Office: (601) 859-1177
Fax: (601) 859-0795
First, conditions are not either open and obvious or not open and obvious. Common sense and experience negates an either/or categorization of such conditions. Just how open and obvious a condition may have been is a question for the jury in all except the clearest cases.
More fundamentally, the rule for which the City argues would exonerate it no matter how negligent the City may have been and no matter how “active” that negligence may have been at the time. We might as well exonerate as a matter of law a defendant who leaves his car parked in the middle of the street on grounds that the car was open and obvious.
In prior cases involving hazards that were extremely “open and obvious”, this Court has not barred injured parties from recovery, but rather has left the issue to the jury properly instructed regarding comparative negligence. Where a defendant negligently creates an unreasonably unsafe condition in an area where the plaintiff has every right to be, that defendant may not escape liability by arguing that the condition was open and obvious.
Attorney Resources Case:
Bell v. City of Bay St. Louis, 467 So. 2d 657, 664 (Miss. 1985)
MS Code Section 41-9-119-Proof that medical, hospital, and doctor bills were paid or incurred because of an illness, disease, or injury shall be prima facie evidence that such bills so paid or incurred were necessary and reasonable.
Minor Settlement Mississippi requires court approval of all minor settlements. The test applied for approval is whether settlement is fair and reasonable under the circumstances, and protects the best interests of the child. By statute, the court may approve a minor settlement for less than $25,000 without appointment of a guardian or establishment of a guardianship account ; in practice, most Courts will appoint a guardian for all settlements exceeding $2,500. Otherwise, the Court must appoint a guardian for the minor to oversee administration of funds and establish a guardianship account. A guardian ad litem may also be appointed by the court (often at the carrier’s expense) to render an opinion as to reasonableness of the settlement. Practically speaking, the Court will rarely approve a settlement where the minor has not reached maximum medical improvement (MMI), unless the settlement is for policy limits. Both parents, if living, must be joined as defendants in proceedings to establish a guardian; however, only the custodial parent need be joined where custody has been awarded solely to that parent by decree of court. Pursuant to statute, any Medicaid lien must be satisfied out of the settlement proceeds. Otherwise, the carrier and its insured may be independently liable to Medicaid directly, and recoverable damages may exceed the amount of the liability policy limits. If the minor is fourteen (14) years or older, the Court may invite the minor’s comment as to settlement amount and selection of the guardian.
A basic tenet of statutory construction is that “shall” is mandatory and “may” is discretionary. Attorney Resources Case: Planters Bank & Trust Co. v. Sklar, 555 So.2d 1024, 1027 (Miss. 1990); Murphy v. State, 253 Miss. 644, 649, 178 So.2d 692 (1965).
In Clark v. Moore Memorial United Methodist Church, 538 So. 2d 760, 763 (Miss.1989) the Mississippi Supreme Court cited the Restatement (2d) of Torts, § 332 (1965), which provides:
(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.
The distinction between whether Deborah Case is a business invitee or a licensee has great significance. If the Court finds that she was a licensee at the time of her injury, the duty of Wal-Mart would be to refrain from willfully or wantonly injuring her. Attorney Resources Case: Lucas v. Buddy Jones Ford Lincoln Mercury, Inc., 518 So. 2d 646, 648 (Miss. 1988). On the other hand, if the Court finds that Deborah case was a business invitee, then Wal-Mart would have a duty to exercise reasonable care to keep the premises in a safe condition. Skelton v. Twin County Rural Electric Assoc., 611 So. 2d 931, 936 (Miss. 1992).
In Attorney Resources Case: Ingalls Shipbuilding Corp. v. McDougald, the Mississippi Supreme Court stated, “one who employs an independent contractor is nevertheless answerable for his own negligence. So an employer owes a duty to an independent contractor and the latter’s employees to turn over to them a reasonably safe place to work or to give warning of the danger.” Ingalls Shipbuilding Corp. v. McDougald, 228 So. 2d 365, 367 (Miss.1969). This language suggests that an employee of an independent contractor working for a contractee/owner is an invitee and not a mere licensee. If so, it appears that an employee of a vendor to a merchant vendee assigned full-time to the vendee’s premises would be at least in an analogous position.
Tharp v. Bunge Corp. 641 So. 2d 20 (1994)
This Court should discourage unreasonably dangerous conditions rather than fostering them in their obvious forms. It is anomalous to find that a defendant has a duty to provide reasonably safe premises and at the same time deny a plaintiff recovery from a breach of that same duty. The party in the best position to eliminate a dangerous condition should be burdened with that responsibility. If a dangerous condition is obvious to the plaintiff, then surely it is obvious to the defendant as well. The defendant, accordingly, should alleviate the danger.
We now abolish the so-called “open and obvious” defense and apply our true comparative negligence doctrine. The jury found that there was negligence in the case at hand; the trial judge erred in construing the open and obvious defense as a complete bar when it really is only a mitigation of damages on a comparative negligence basis under Miss. Code Ann. § 11-7-15. The general verdict the jury returned in favor of Tharp shall be reinstated.