Mississippi Litigation Lawyer & Attorney : Bradley Arant Law Firm : Serving Jackson, Gulfport, Biloxi, Tupelo, Hinds County, 5th Circuit

David W. Clark, a partner in the firm's Jackson office, has been appointed to be the member from the Fifth Circuit on the American Bar Association's Standing Committee on the Federal Judiciary. Mr. Clark will serve a three-year term, from August 2008 to August 2011. The Standing Committee on the Federal Judiciary is one of the most important ABA committees. It consists of fifteen members - - two from the Ninth Circuit, one from each of the other twelve federal judicial circuits and one at-large. The members are appointed based on their reputations for professional competence, integrity and devotion to public service. The Standing Committee employs a peer-review process to evaluate the professional qualifications of all nominees to the Supreme Court of the United States, circuit courts of appeals, district courts (including territorial district courts) and the Court of International Trade. It issues its reports to the Senate Judiciary Committee, the White House and the Department of Justice. The Standing Committee's reports are very influential, and often are a deciding factor in whether nominees are confirmed. The last Fifth Circuit member on the Committee from Mississippi was in the mid-1970's. To view Mr. Clark’s complete profile, please click here.

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Southern Business & Development magazine has named Bradley Arant one of the "Ten Law Firms that Know Economic Development." The magazine's recent issue highlights firms that specialize in helping companies find the best locations, identify the best tax structures, maximize incentives and build the most cost-effective buildings, among other activities.

See related article at Mississippi Business Journal Online.

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On April 7, 2008, the Fifth Circuit Court of Appeals issued another important opinion in the coverage disputes arising out of Hurricane Katrina. In Broussard v. State Farm Fire and Cas. Co., the Fifth Circuit examined several rulings made by District Judge L.T. Senter.

In Broussard v. State Farm Fire and Cas. Co., Slip Copy, 2007 WL 113942 (S.D. Miss. 2007), Judge Senter directed a verdict for the plaintiffs on the issue of whether all-risk coverage language required State Farm to prove which portion of the loss was caused by wind and which portion was caused by water. In Broussard, State Farm’s expert was testified that there was a 75% probability that somewhere between 0% and 35% of the damage was caused by wind. However, State Farm denied the claim on the basis that the property was completely destroyed by the storm surge and there was a flood exclusion in State Farm’s policy. Judge Senter held as follows:

• Because plaintiffs met their burden by stipulation to prove a loss caused by wind damage, the burden of proof shifted to State Farm to establish, by a preponderance of the evidence, that portion of the total loss that was caused by flood rather than wind. The policy obligated State Farm to pay any portion of the loss that it could not prove by preponderance of the evidence was caused by flood.
• Because State Farm did not introduce evidence from which any finder of fact could reasonably determine which part of the loss was attributable to water as opposed to wind, no reasonable juror could find that State Farm met its burden of proof. Therefore, Judge Senter award the limits of insurance based on the stipulation that plaintiffs’ house was totally destroyed and that wind caused some part of the damage.

Broussard, 2007 WL 113942 at *3. Judge Senter also directed a verdict that State Farm lacked a legitimate or arguable reason for its decision to deny the claim and instructed the jury to consider awarding punitive damages against State Farm. The jury returned a punitive damage award for 2.5 million dollars, which Judge Senter subsequently reduced to one (1) million dollars. 

A recent district court opinion took the approach to burden allocation that many anticipated from the Fifth Circuit’s Broussard opinion. In Legacy Condominiums, Inc. v. Landmark American Insurance Company, the Court wrote, “[i]f the insurer shows an exclusion applies, the burden shifts back to the insured to establish an exception to the exclusion.” The Court added, “[a]lthough the Mississippi Supreme Court has never spoken directly on point, authority from the Fifth Circuit supports the proposition that the burden returns to the insured.” Id. (citing Guaranty Nat. Ins. Co. v. Vic Manufacturing Co., 143 F.3d 192, 194 (5^th Cir. 1998)). However, in the Broussard appeal, the Fifth Circuit focused on the Mississippi Supreme Court’s Hurricane Camille opinions and reached a different conclusion. 

The Fifth Circuit reversed and affirmed Judge Senter’s decisions as follows:

• The Fifth Circuit reversed Judge Senter’s JMOL against State Farm. The Fifth Circuit found that there was sufficient evidence on both sides of the causation questions such that a reasonable juror could have found in favor of either party. Accordingly, the jury and not the Court should have decided the causation and related liability questions.
• Perhaps most significantly, the Fifth Circuit rejected State Farm’s burden shifting approach to causation questions in this context. The Court cited several Mississippi cases holding that the burden does not shift back to the insured once the insurer has provided proof of damage caused by an excluded peril under a “named peril” policy. The Fifth Circuit then extended that logic by way of an Erie guess to causation analysis under an “open peril” policy. The Court suggested that the proper procedure is to instruct the jury on the burdens of both parties, the insured and the insurer, and then to leave causation questions in the hands of the properly instructed jury.
• The Fifth Circuit held that Judge Senter erred in issuing a punitive instruction based on State Farm’s conduct in adjusting the claim. The Court found that while State Farm should be liable for any wind damage caused prior to the storm surge, its conduct in denying coverage did not rise to the level of malice necessary to justify punitive damages. Notably however, the Court suggested that other extracontractual damages (attorneys’ fees, court costs, etc…) may be appropriate on remand
• The Fifth Circuit affirmed Judge Senter’s denial of State Farm’s transfer of venue motion. The Court took note of the detailed voir dire procedure employed by the Court and was satisfied that Judge Senter did not abuse his discretion in denying State Farm’s motion, which was based primarily upon pre-trial publicity related to Hurricane Katrina.

Note that the anti-concurrent causation (“ACC”) clause was not a factor in Broussard because, as the Fifth Circuit observed, State Farm waived it as an affirmative defense. Therefore, Broussard should be considered along with the Fifth Circuit’s opinions in Tuepker v. State Farm Fire & Casualty Co., 507 F.3d 346 (5th Cir. 2007) and Leonard v. Nationwide Mut. Ins. Co., 499 F.3d 419 (5th Cir. 2007), both of which involved the operation of ACC clauses.

For more information, contact David Pharr or Alex Purvis.

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In Progressive Gulf Insurance Company v. Dickerson and Bowen, Inc., and Travelers Indemnity Company of Illinois, 2006-CA-01250-SCT (Oct. 4, 2007), The Mississippi Supreme Court reversed and rendered a trial court’s grant of Summary Judgment in a dispute between two liability insurance companies. In the underlying matter, which arose out of a motor vehicle accident, the injured party sued both an individual commercial driver (“Driver”) and the company that had contracted for the driver’s services (“Company”).  Progressive insured the Driver and Travelers insured the Company. Before trial, Progressive settled the claim against the Driver, leaving the Company as the sole defendant at trial. At trial, the jury found the Company vicariously liable for the negligent acts of the Driver and awarded $2.5 million in damages. Later, Travelers settled on behalf of the Company for $250,000. 

After funding the settlement, Travelers filed a separate action for indemnity pursuant to a provision in Progressive’s policy that extended coverage to any party vicariously liable for the acts of Progressive’s insured. The trial Court in the indemnity action granted Travelers’ Motion for Summary Judgment.

The Supreme Court reversed and rendered because Travelers had not strictly complied with the notice and assumption of liability provisions in Progressive’s policy. Additionally, the court found that Progressive relied on Traveler’s decision to defend the Company itself without tendering the defense to Progressive and on the Company’s argument throughout the underlying lawsuit that it was not subject to vicarious liability for the Driver’s acts because the Driver was an independent contractor. 

The Court suggested that Progressive would have been obligated under the policy to indemnify Travelers for the Company’s vicarious liability had the claim been properly preserved. 

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In Smith v. Clement, No. 2006-CA-00018-SCT (April 2, 2008), the Mississippi Supreme Court reaffirmed the trial court's responsibility to act as a gate-keeper for introduction of expert testimony, following Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).  In Smith, the defendant school district brought a third-party complaint against M&W, the installer of propane fuel systems used in the district's buses.  A bus fire had injured several students, and the district claimed that M&W's negligence was the proximate cause of the fire. 

The district moved for summary judgment; its expert, Richard Forbes, Ph.D., provided an affidavit in support of the motion.  The Forbes affidavit averred that the fire was caused by a leak in copper tubing, which had been improperly flared; and stated that, in Forbes's opinion, the copper tubing involved at the time of the fire was the same tubing that had been originally installed by M&W.  In response, M&W moved to strike Forbes's affidavit.  M&W's expert, Derek T. Nolen, provided an affidavit outlining his background in the analysis of mechanical systems and fires and explosions involving propane gas.  Nolen's affidavit also stated that no reliable or valid scientific principles existed from which Forbes could have opined that the copper tubing was the same as that originally installed.

The circuit judge granted M&W's motion to strike, holding that Forbes's opinions "expressed by . . . his affidavit are nothing more than unsupported conclusions which are devoid of a factual basis and not the product of reliable principles and methods."  The court also granted M&W's motion for summary judgment, finding that there was no genuine issue of material fact as to causation, as the plaintiffs had not offered credible expert testimony on this point. 

In its appeal, the district argued that Daubert requires that the circuit court hold a hearing as to the admissibility of Forbes's testimony.  The Supreme Court found this argument to be without merit:  "We have never held that a trial court is required to hold a formal 'Daubert' hearing when an expert's opinions are challenged.  We only require that . . . the party sponsoring the expert's challenged testimony be given a fair opportunity to respond to the challenge."  Because the district did not respond for five months after M&W provided Nolen's affidavit to challenge Forbes's affidavit, the Supreme Court found that the trial court had not erred in striking Forbes's affidavit.

Presiding Justice Waller, joined by Presiding Justice Diaz and Justices Easley and Graves, dissented from the Court's opinion.  Justice Waller's dissenting opinion would reverse the grant of summary judgment for M&W and remand the case for further proceedings, on the basis that neither Forbes's nor Nolen's affidavit should be given greater weight than the other, and that a disagreement between two experts as to causation demonstrates that a material fact issue existed.  Such a disagreement, according to the Waller dissent, "goes to the weight of the evidence and should be heard at trial." 

Presiding Justice Diaz wrote separately to register his disagreement with the majority's approach.  Although the majority opinion points out that the plaintiff schoolchildren had settled separately with the school district, leaving only the district's claim against M&W, Justice Diaz's dissent argues that "the result of [the majority's] opinion is to derail the cause of action of two children who were terribly burned on a school bus."  In Justice Diaz's view, the majority's approach improperly "refused to allow [the] plaintiffs an opportunity to be heard regarding the expert testimony they wish to offer, departing from our rules, established precedent, and standard litigation practice."

For more information, contact Margaret Cupples.

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On March 17, 2008, Governor Haley Barbour signed the “Mississippi Employment Protection Act” into law. The law covers every employer in Mississippi and mandates that they shall register with and use the E-Verify status verification system in hiring new employees. The requirement takes effect on July 1, 2008, for all Mississippi covered entities with 250 or more employees. Employers with fewer employees must comply by July 1, 2009, July 1, 2010, or July 1, 2011, depending upon the size of the employer. Failure to comply may result in specified penalties, monetary fines, and imprisonment. The law will be enforced by several state agencies, including the Department of Employment Security, State Tax Commission, Office of the Secretary of State, Department of Human Services and the Office of the Attorney General.

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This list in not exhaustive, but rather, illustrative of the industries which are targeted by OSHA crystalline silica NEP. OSHA will identify and locate targeted employers using the Dun & Bradstreet employer list maintained by OSHA, commercial directories, telephone listings, local knowledge and the Dodge reports for construction sites. 

If your business has been inspected within the past three (3) years and had no serious violations related to silica exposures or had a follow up inspection which documented abatement of conditions previously cited, then your business will be eliminated from the target master list. Furthermore, participation in a voluntary compliance program may exempt an employer from a target inspection.

Inspections under the silica NEP will include:

· Monitoring employee exposure to respirable dust containing crystalline silica;

· Bulk sampling of settled dust;

· Review of employer’s silica exposure monitoring records;

· Evaluation of engineering and work practice controls intended to reduce exposure;

· Evaluation of respiratory protection program;

· Compliance with hazard communications standards inclusive of carcinogenicity labeling;

· Hygiene practices including evaluation of clean up methods, separation of break areas, and clothing decontamination

· Review and evaluation of employer’s recordkeeping of medical and exposure evaluations of employees including evaluation of method for ensuring the confidentiality of employee medical records

Respiratory Protection

With regard to respiratory protection, OSHA instructs that when respirators are a permissible means of addressing overexposure, the minimum respiratory protection allowed is an N95 NIOSH-approved respirator. Furthermore, medical evaluations are mandated for all employees who are required to wear a respirator.

Hazard Communication

Employers are required to label products containing more than 0.1 percent crystalline silica by weight or volume with information regarding the evidence of carcinogenicity of silica, and similar information should be placed in the product’s Material Safety Data Sheet. 

Bricks, tile and cement boards are not exempt from the Hazard Communication Standard, however, palletized and bound bricks need not be individually labeled, however the pallet must be tagged with an appropriate label. Likewise, vehicles hauling crushed stone shall include hazard warnings concerning carcinogenicity of silica in their shipping papers or bills of lading (for crushed stone operations falling under the jurisdiction of OSHA rather than MSHA).

Abrasive Blasting

OSHA is particularly concerned with abrasive blasting operations and has set in place additional program elements specific to abrasive blasting operations. These elements include:

·         Monitoring employee exposure to metals such as lead, arsenic, manganese, etc.;

·         Sampling air outside the protective equipment;

·         Exposure monitoring of other employees not engaged in abrasive blasting but still working in the area;

·         Evaluation of air quality for supplied air hoods inclusive of testing for carbon monoxide;

·         Evaluation of in-line absorbent beds used with compressor supplied air;

·         Evaluation of electrical grounding, pressure controls and personal protective equipment available to the employee;

·         When alternative abrasive material is being used, ensure that the hazards associated with the material have been evaluated

Outreach

OSHA is developing crystalline silica-related information and training materials. This information will be provided to OSHA’s regional offices. The regional offices will disseminate this information through letters and news releases as well as seminar on silica-related topics. The information will also be provided to partnerships and alliances of teaming employers.

Compliance Assistance

OSHA’s Instruction does not offer any specific assistance to employers. With the exception of previously available voluntary compliance programs intitiated by OSHA, the assistance from OSHA appears to come in the form of follow up inspections and employer reporting on abatement of overexposure. No affirmative compliance assistance program is identified in this Instruction from OSHA.

Summary

OSHA’s initiation of a NEP regarding exposure to crystalline silica will result in an increased likelihood of inspection of businesses within the targeted industries given that OSHA has required that at a minimum, two percent (2%) of all inspections will involve a crystalline silica-related inspection.

For more information, contact Rob Dodson.

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Clark v. Paragon Systems, Inc., No. 06-30934 slip op. (5th Cir. Apr. 3, 2007), an unpublished opinion, considers the effect of Hurricanes Katrina and Rita on a litigant’s deadline to file a lawsuit within 90 days of receiving a right-to-sue notice from the EEOC. Construed most liberally in favor of the plaintiff, various orders entered after the hurricanes would have suspended operable deadlines until November 25, 2005. Ninety days from that date – the last day on which the plaintiff’s complaint was required to be filed – was February 23, 2006.

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Wilson v. Strickland, No. 2005-CA-02235-COA slip op. (2007), was tried to a defense verdict in the County Court of Harrison County. The case arose from a car accident, in which the plaintiff – who is white – was a guest passenger in a car that “t-boned” a church van driven by the defendant, who is black. After striking two of three black venire members for cause, plaintiff’s counsel used his first peremptory challenge to strike the last black venire member. Asked to articulate a race-neutral reason for the challenge, see Batson v. Kentucky, 476 U.S. 79 (1986), plaintiff’s counsel responded that the juror’s information card revealed that she was a Baptist, and that she worked at the Department of Human Services. Because the church van belonged to a Baptist church (not a party to the case), plaintiff’s counsel stated that the juror might favor the defense. The juror’s employment at DHS was not mentioned again during the colloquy.

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