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Mississippi fault

Mississippi fault

The top is made of digestive biscuits with cocoa (crushed) which are mixed with butter (melted) and chocolate cream with hazelnuts (like Finetti).

Place the composition in a cake tin with Ø 26 cm (and on the sides), then let it cool until the chocolate cream is finished.

Chocolate cream it is made from 3 yolks rubbed with 75g of sugar, cornstarch and 150 ml of liquid cream, then 300 ml of liquid cream are heated in which the coffee (granules) and the pieces of chocolate are melted.

Incorporate the malai mixture into the melted chocolate and chew over low heat until the cream begins to thicken, then add 1 sachet of gelatin (soaked in 3 tablespoons of water and then boiled)

Leave the cream to cool a little, then put over 150 ml whipped cream; pour into a cake tin and let cool again for 20 minutes.


The meringue is made from 3 beaten egg whites with 100g of sugar (gradually added), then place over the chocolate cream and bake until the meringue turns golden.

Good appetite!


What Is the Medical Malpractice Statute of Limitations in Mississippi?

The Mississippi statute of limitations for medical malpractice is two years.

& # 8220 (1) For any claim accruing on or before June 30, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.

& # 8220 (2) For any claim accruing on or after July 1, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered, and, except as described in paragraphs (a) and (b) of this subsection, in no event more than seven (7) years after the alleged act, omission or neglect occurred. & # 8221 (Miss. Code. Ann. § 15-1-36)

In passing Mississippi Code Annotated Section 15-1-36, the legislature shortened the limitation period for bringing a medical malpractice suit but adopted a discovery standard for triggering the running of the statute. (Sweeney v. Preston, 642 So.2d 332, 333 (Miss.1994))


What Is the Medical Malpractice Statute of Limitations in Mississippi?

The Mississippi statute of limitations for medical malpractice is two years.

& # 8220 (1) For any claim accruing on or before June 30, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.

& # 8220 (2) For any claim accruing on or after July 1, 1998, and except as otherwise provided in this section, no claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, institution for the aged or infirm, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered, and, except as described in paragraphs (a) and (b) of this subsection, in no event more than seven (7) years after the alleged act, omission or neglect occurred. & # 8221 (Miss. Code. Ann. § 15-1-36)

In passing Mississippi Code Annotated Section 15-1-36, the legislature shortened the limitation period for bringing a medical malpractice suit but adopted a discovery standard for triggering the running of the statute. (Sweeney v. Preston, 642 So.2d 332, 333 (Miss.1994))


Limiting Adverse Verdicts: Tort Reform Victory in Mississippi

The jury has just announced its verdict finding your company liable for a million dollars in damages. As you mentally prepare your to-do list including your new trial motion and list of items to be raised on appeal, you should also consider what caps are placed on non-economic and / or punitive damages in the jurisdiction and if the award can be reduced at the trial court level. The previous issue of For You: Solution provides a compendium of state legislation that caps the amount of non-economic damages that can be recovered in personal injury suits. Mississippi is on the list, highlighting Miss. Code Ann. §11-1-60 (2007). 1 Section 11-1-60 (2) (b) provides: “In any civil action filed on or after September 1, 2004, […] in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than One Million Dollars ($ 1,000,000.00) for noneconomic damages. ” 2

Economic Benefits of Damages Caps

In 2002, the American Tort Reform Association (ATRA) published its first listing of Judicial Hellholes. Mississippi’s 22 nd Judicial Circuit, which includes Copiah, Claiborne, and Jefferson Counties, topped the list. 3 The report describes judicial hellholes “as 'magnet courts' or even 'magic jurisdictions' - magic in that they can seemingly pull million or billion dollar verdicts out of a hat and create causes of action previously unknown or procedural rules that are foreign to due process. ” 4 In 2003, Mississippi’s 22 nd Judicial Circuit was again listed among the top jurisdictions as a judicial hellhole. 5 During the 2002 special session, the Mississippi legislature passed two pieces of tort reform legislation, including one piece that focused solely on capping medical malpractice litigation with a $ 500,000 cap on non-economic damages and a second that included caps on punitive damages for all tort claims. 6 Despite these reforms, Mississippi’s economy continued to suffer. 7 The second wave of tort reform, which includes the current version of Miss. Code Ann. §11-1-60, was enacted in 2004 and became effective September 1, 2004. Since the enactment, insurance companies have returned to the state, Medical Assurance Company of Mississippi has ceased raising its rates, the state has been successful in recruiting new business due to the lower costs of doing business, and the mass-tort industry was virtually eliminated. 8 Mississippi has not appeared on ATRA’s judicial hellhole list since 2003.

Procedural Considerations

With tort reform and statutory caps in place in the majority of states, an initial thought upon an adverse verdict must be whether the cap is applicable and should be implemented to reduce the judgment. Immediately upon receiving an adverse verdict that is above the statutory limitations for damages, you must file a Motion to Amend the Judgment or Alter the Final Judgment. The motion should include the date of judgment, the amount of judgment, the applicable statute, the amount once the limitation is applied, and a proposed amended judgment. Some state statutes, including Miss. Code. Ann. §11-1-60, provide that the trier of fact shall not be advised of the limitations and that the judge shall appropriately reduce any award. A strict reading of this would appear to give the court the power to reduce the award his sponte, but motion practice may be required. The motion to alter the judgment must be filed at the trial court level. 9

Defending the Constitutionality of Damages Caps

Recently, Butler Snow defended the constitutionality of the caps portion of Section 11-1-60 in a premises liability action filed against the owner of a convenience store. 10 This is the first challenge to Mississippi’s tort reform efforts enacted in 2004. In July 2008, the Humphreys County Circuit Court imposed the $ 1 million dollar limitation on non-economic damages found in Miss. Code Ann. §11-1-60 and reduced the $ 4 million verdict. The plaintiff challenged the amended judgment. After receiving the parties ’written papers and hearing the oral argument, the trial court denied the plaintiff’s constitutional challenge to §11-1-60. 11

The plaintiff challenged Miss. Code Ann. §11-1-60 on the following grounds:

1) It violates the right to trial by jury enumerated in the Seventh Amendment of the United States Constitution and Section 31, Article 3 of the Mississippi Constitution.

2) It violates Section 24 of the Mississippi Constitution, which provides for the right to a remedy by due course of law.

3) It violates the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment of the United States Constitution.

4) It violates the provisions for Separation of Powers in the Mississippi Constitution.

The challenging party bears the heavy burden to show the statute is unconstitutional, and a state law may be struck down “on constitutional grounds only where it appears beyond all reasonable doubt that the statute under review is unconstitutional.” 12 The presumption is that State Legislature acted properly when enacting statutes. The Mississippi Supreme Court has recognized deference to the legislature in promulgating similar statutes that impose limitations on what types of damages and what amounts are recoverable. 13

In determining whether an act of the Legislature violates the Constitution, the courts are without the right to substitute their judgment for that of the Legislature as to the wisdom and policy of the act and must enforce it, unless it appears beyond all reasonable doubt to violate the Constitution. Nor are the courts at liberty to declare an Act void, because in their opinion it is opposed to a spirit supposed to prevail the Constitution, but not the expressed words. 14

In arguing for the constitutionality of a damage limitation, consider whether other statutes that impose limitations have been upheld as constitutional under the State and Federal Constitutions. For example, statutes of limitations have routinely been upheld even though they cut off an injured party’s right to recover damages after a certain time specified by that same statute. The Constitution, State and Federal, does not forbid either: A) the creation of new rights or B) the abolition of old rights recognized by the common law to obtain a permissible legislative objective. 15 An important concept to note in your argument is that non-economic damages themselves are created by statute the damages are statutorily defined. Accordingly, the legislature has the power to limit them, expand them, or take them away entirely.

The due process analysis requires that the statute at issue be related to a proper legislative purpose. Most of the caps on damages were enacted into statutes as part of tort reform in the early part of this century to combat rising insurance prices and a tremendous influx of lawsuits. The limitations placed on non-economic damages help serve several salutary purposes. First, the presence of limitations provisions enables individuals and businesses to make better informed risk assessment decisions in connection with their respective purchase of real property, goods, and services asset management estate planning personal careers and business strategies. These statutes also provide casualty and property liability insurers with the ability to improve the predictability of the outcome of the amount of damages that can be awarded for personal injury claims made against their policies. The statutes also have the ancillary purpose of improving the business climate by making the state a more attractive place for professionals and businesses to operate, thereby creating greater employment opportunities. Finally, the limitation statutes enable injured parties and alleged tortfeasors to be in a better position to evaluate the merits of their cases and the range of verdicts that are possible, thereby increasing the likelihood of settlement in close cases and reducing the burden imposed on the court. system.

In our case, the State Attorney General intervened as a non-aligned party and supported the constitutionality of Section 11-1-60 (2) (b), adopting the legal arguments presented on behalf of the defendants. In Mississippi, as with most states, the State Attorney General is authorized by statute to intervene on behalf of the State in pending litigation to defend the constitutionality of a state statute. 16 In some states, parties must give notice to the attorney general of any constitutional challenge to a statute. Regardless of whether your state requires notice, from a standpoint defense, alert the attorney general of the suit and your position as soon as possible. The means and method of notifying the attorney general in hopes that he will take action to bolster your side will depend on the working relationship you or your firm has with the Office of the Attorney General and the circumstances of the individual case.

In our matter, we anticipate an appeal by plaintiff to the Mississippi Supreme Court. Once a case is at that level, other interested organizations may want to have their views about these issues known to the court through the filing of amicus curia briefs. One entity that may have an interest in filing an amicus brief is the state defense bar association. Additionally, depending on the circumstances of the case, the American Tort Reform Association (ATRA), Defense Research Institute (DRI), Lawyers for Civil Justice (LCJ), or United States Chamber of Commerce may be willing to get involved in the matter. 17 The Advanced Medical Technology Association (AdvaMed), the Medical Device Manufacturer's Association (MDMA), the Pharmaceutical Research & Manufacturers of America (PhRMA), and the Product Liability Advisory Council (PLAC) are some of the organizations in the healthcare industry that may have an interest in the matter. Should your company find itself defending the constitutionality of a damages limitation at the appellate level, consider reaching out to one or more of the agencies that potentially may have an interest in the matter and requesting their assistance.

Mississippi is not the only jurisdiction to be faced with a constitutional challenge to newly enacted damages caps.Last December, in the context of a pharmaceutical case, the Ohio Supreme Court upheld legislation that limits non-economic and punitive damages. 18 The Ohio Supreme Court specifically found that the statute limiting noneconomic damages did not violate Ohio’s constitutional right to a jury trial, the right to an open court and remedy under the Ohio Constitution, the Due Process Clause, or the Equal Protection Clause. In its twenty-five page majority opinion, the Ohio Supreme Court outlined the various reasons the plaintiff’s challenges to the statute were rejected and will serve as a good starting point for a general overview of the issues. The opinion also includes a footnote citing nineteen other jurisdictions that have upheld the limits on non-economic damages. 19 Also, the previous issue of For You: Solution notes that the state supreme courts in Alabama, Illinois, New Hampshire, Oregon, and Washington struck down legislation that attempted to limit damages. 20

With only approximately half of the state courts being faced with addressing these challenges, we should expect future decisions that impact how tort reform will evolve and succeed. Mississippi is facing its first challenge to the tort reform that was so desperately needed for our economy and that has reshaped our reputation from a litigation standpoint. We’ll keep you posted on the results.

[1] For You: Solution, Vol. 1, No. 3, pp. 18 (July 2008).

[2] Miss. Code Ann. §11-1-60 (2) (b) (2007). Subpart (2) (a) of §11-1-60 places a $ 500,000.00 cap on non-economic damages in medical malpractice actions.

[6] Percy, Checking Up on the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 MSLJ 1001, (Miss. L. J. 2004).

[7] Ross, Charlie, Op-ed, Jackson Action: In Mississippi, Tort Reform Works, Wall St. J., September 15, 2005. “Prior to the legislation, […] insurance companies were fleeing the state. Others were refusing to write new policies. The medical field was particularly strained: Liability insurance was in many cases unaffordable, and in some cases unavailable. ”

[9] Arrington v. Galon-Med, Inc., 947 So.2d 719 (La. 2007) (dismissing challenge to limitation statute when raised for first time on appeal and stating that litigants must raise constitutional challenges in trial court rather than appeal court).

[10] Lymas v. Double-Quick, Inc., No. 2007-0072, (Circuit Court of Humphreys County).

[11] Lymas v. Double-Quick, Inc., No. 2007-0072, Order, (Circuit Court of Humphreys County Sept. 18, 2008).

[12] Wells by Wells v. Panola County Bd. Of Educ., 645 So. 2d 883, 888 (Miss. 1994).

[13] Pathfinder Coach Division of Superior Coach Corp. v. Cottrell, 62 So.2d 383, 385 (Miss. 1953).

[15] Wells by Wells v. Panola County Bd. Of Educ., 645 So. 2d 883, 890 (Miss. 1994).

[17] To increase the likelihood of gaining support from an agency such as these, you must notify them of the matter and issue as soon as possible. Each agency has a process for submitting proposals which can be found on the agency’s website. In addition, the law firm handling the issue likely has a relationship with one or more of the entities that can be a good starting point.


Mississippi mud pie is delicious. Here's how to make this delicious cake: for the countertop, you need to crush the usual biscuits with a rolling pin or food processor, then put them in a large bowl. Melt the chocolate on a steam bath, together with the butter and after 2-3 boils and complete homogenization, remove from the heat and cool slightly. Then pour the mixture over the crushed biscuits and mix well. In a 24/26 cm cake form, from the one with a detachable ring, place the biscuit top and level well. Refrigerate. It is enough as long as the cream is ready.

For the cream, melt the chocolate together with the butter, mix well and then cool slightly. In a large bowl, mix eggs with the two types of sugar until the composition becomes dense and doubles in volume. Then mix the whipped cream and mix a little, at low speed. Pour the chocolate cream and mix for a few minutes.

Take the cake form out of the fridge and pour the cream on top.

Place in the oven, preheated, at 4/180 C, for about 45 minutes, until it hardens slightly. Let it rest in the form to cool completely.

Then place the topping on top of the cake, ie mix the whipped cream well with the powdered sugar and sprinkle with grated chocolate. Good appetite!
The source of this recipe is the culinary blog Alice - Albinutza.


Limiting Adverse Verdicts: Tort Reform Victory in Mississippi

The jury has just announced its verdict finding your company liable for a million dollars in damages. As you mentally prepare your to-do list including your new trial motion and list of items to be raised on appeal, you should also consider what caps are placed on non-economic and / or punitive damages in the jurisdiction and if the award can be reduced at the trial court level. The previous issue of For You: Solution provides a compendium of state legislation that caps the amount of non-economic damages that can be recovered in personal injury suits. Mississippi is on the list, highlighting Miss. Code Ann. §11-1-60 (2007). 1 Section 11-1-60 (2) (b) provides: “In any civil action filed on or after September 1, 2004, […] in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than One Million Dollars ($ 1,000,000.00) for noneconomic damages. ” 2

Economic Benefits of Damages Caps

In 2002, the American Tort Reform Association (ATRA) published its first listing of Judicial Hellholes. Mississippi’s 22 nd Judicial Circuit, which includes Copiah, Claiborne, and Jefferson Counties, topped the list. 3 The report describes judicial hellholes “as 'magnet courts' or even 'magic jurisdictions' - magic in that they can seemingly pull million or billion dollar verdicts out of a hat and create causes of action previously unknown or procedural rules that are foreign to due process. ” 4 In 2003, Mississippi’s 22 nd Judicial Circuit was again listed among the top jurisdictions as a judicial hellhole. 5 During the 2002 special session, the Mississippi legislature passed two pieces of tort reform legislation, including one piece that focused solely on capping medical malpractice litigation with a $ 500,000 cap on non-economic damages and a second that included caps on punitive damages for all tort claims. 6 Despite these reforms, Mississippi’s economy continued to suffer. 7 The second wave of tort reform, which includes the current version of Miss. Code Ann. §11-1-60, was enacted in 2004 and became effective September 1, 2004. Since the enactment, insurance companies have returned to the state, Medical Assurance Company of Mississippi has ceased raising its rates, the state has been successful in recruiting new business due to the lower costs of doing business, and the mass-tort industry was virtually eliminated. 8 Mississippi has not appeared on ATRA’s judicial hellhole list since 2003.

Procedural Considerations

With tort reform and statutory caps in place in the majority of states, an initial thought upon an adverse verdict must be whether the cap is applicable and should be implemented to reduce the judgment. Immediately upon receiving an adverse verdict that is above the statutory limitations for damages, you must file a Motion to Amend the Judgment or Alter the Final Judgment. The motion should include the date of judgment, the amount of judgment, the applicable statute, the amount once the limitation is applied, and a proposed amended judgment. Some state statutes, including Miss. Code. Ann. §11-1-60, provide that the trier of fact shall not be advised of the limitations and that the judge shall appropriately reduce any award. A strict reading of this would appear to give the court the power to reduce the award his sponte, but motion practice may be required. The motion to alter the judgment must be filed at the trial court level. 9

Defending the Constitutionality of Damages Caps

Recently, Butler Snow defended the constitutionality of the caps portion of Section 11-1-60 in a premises liability action filed against the owner of a convenience store. 10 This is the first challenge to Mississippi’s tort reform efforts enacted in 2004. In July 2008, the Humphreys County Circuit Court imposed the $ 1 million dollar limitation on non-economic damages found in Miss. Code Ann. §11-1-60 and reduced the $ 4 million verdict. The plaintiff challenged the amended judgment. After receiving the parties ’written papers and hearing the oral argument, the trial court denied the plaintiff’s constitutional challenge to §11-1-60. 11

The plaintiff challenged Miss. Code Ann. §11-1-60 on the following grounds:

1) It violates the right to trial by jury enumerated in the Seventh Amendment of the United States Constitution and Section 31, Article 3 of the Mississippi Constitution.

2) It violates Section 24 of the Mississippi Constitution, which provides for the right to a remedy by due course of law.

3) It violates the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment of the United States Constitution.

4) It violates the provisions for Separation of Powers in the Mississippi Constitution.

The challenging party bears the heavy burden to show the statute is unconstitutional, and a state law may be struck down “on constitutional grounds only where it appears beyond all reasonable doubt that the statute under review is unconstitutional.” 12 The presumption is that State Legislature acted properly when enacting statutes. The Mississippi Supreme Court has recognized deference to the legislature in promulgating similar statutes that impose limitations on what types of damages and what amounts are recoverable. 13

In determining whether an act of the Legislature violates the Constitution, the courts are without the right to substitute their judgment for that of the Legislature as to the wisdom and policy of the act and must enforce it, unless it appears beyond all reasonable doubt to violate the Constitution. Nor are the courts at liberty to declare an Act void, because in their opinion it is opposed to a spirit supposed to prevail the Constitution, but not the expressed words. 14

In arguing for the constitutionality of a damage limitation, consider whether other statutes that impose limitations have been upheld as constitutional under the State and Federal Constitutions. For example, statutes of limitations have routinely been upheld even though they cut off an injured party’s right to recover damages after a certain time specified by that same statute. The Constitution, State and Federal, does not forbid either: A) the creation of new rights or B) the abolition of old rights recognized by the common law to obtain a permissible legislative objective. 15 An important concept to note in your argument is that non-economic damages themselves are created by statute the damages are statutorily defined. Accordingly, the legislature has the power to limit them, expand them, or take them away entirely.

The due process analysis requires that the statute at issue be related to a proper legislative purpose. Most of the caps on damages were enacted into statutes as part of tort reform in the early part of this century to combat rising insurance prices and a tremendous influx of lawsuits. The limitations placed on non-economic damages help serve several salutary purposes. First, the presence of limitations provisions enables individuals and businesses to make better informed risk assessment decisions in connection with their respective purchase of real property, goods, and services asset management estate planning personal careers and business strategies. These statutes also provide casualty and property liability insurers with the ability to improve the predictability of the outcome of the amount of damages that can be awarded for personal injury claims made against their policies. The statutes also have the ancillary purpose of improving the business climate by making the state a more attractive place for professionals and businesses to operate, thereby creating greater employment opportunities. Finally, the limitation statutes enable injured parties and alleged tortfeasors to be in a better position to evaluate the merits of their cases and the range of verdicts that are possible, thereby increasing the likelihood of settlement in close cases and reducing the burden imposed on the court. system.

In our case, the State Attorney General intervened as a non-aligned party and supported the constitutionality of Section 11-1-60 (2) (b), adopting the legal arguments presented on behalf of the defendants. In Mississippi, as with most states, the State Attorney General is authorized by statute to intervene on behalf of the State in pending litigation to defend the constitutionality of a state statute. 16 In some states, parties must give notice to the attorney general of any constitutional challenge to a statute. Regardless of whether your state requires notice, from a standpoint defense, alert the attorney general of the suit and your position as soon as possible. The means and method of notifying the attorney general in hopes that he will take action to bolster your side will depend on the working relationship you or your firm has with the Office of the Attorney General and the circumstances of the individual case.

In our matter, we anticipate an appeal by plaintiff to the Mississippi Supreme Court. Once a case is at that level, other interested organizations may want to have their views about these issues known to the court through the filing of amicus curia briefs. One entity that may have an interest in filing an amicus brief is the state defense bar association. Additionally, depending on the circumstances of the case, the American Tort Reform Association (ATRA), Defense Research Institute (DRI), Lawyers for Civil Justice (LCJ), or United States Chamber of Commerce may be willing to get involved in the matter. 17 The Advanced Medical Technology Association (AdvaMed), the Medical Device Manufacturer's Association (MDMA), the Pharmaceutical Research & Manufacturers of America (PhRMA), and the Product Liability Advisory Council (PLAC) are some of the organizations in the healthcare industry that may have an interest in the matter. Should your company find itself defending the constitutionality of a damages limitation at the appellate level, consider reaching out to one or more of the agencies that potentially may have an interest in the matter and requesting their assistance.

Mississippi is not the only jurisdiction to be faced with a constitutional challenge to newly enacted damages caps.Last December, in the context of a pharmaceutical case, the Ohio Supreme Court upheld legislation that limits non-economic and punitive damages. 18 The Ohio Supreme Court specifically found that the statute limiting noneconomic damages did not violate Ohio’s constitutional right to a jury trial, the right to an open court and remedy under the Ohio Constitution, the Due Process Clause, or the Equal Protection Clause. In its twenty-five page majority opinion, the Ohio Supreme Court outlined the various reasons the plaintiff’s challenges to the statute were rejected and will serve as a good starting point for a general overview of the issues. The opinion also includes a footnote citing nineteen other jurisdictions that have upheld the limits on non-economic damages. 19 Also, the previous issue of For You: Solution notes that the state supreme courts in Alabama, Illinois, New Hampshire, Oregon, and Washington struck down legislation that attempted to limit damages. 20

With only approximately half of the state courts being faced with addressing these challenges, we should expect future decisions that impact how tort reform will evolve and succeed. Mississippi is facing its first challenge to the tort reform that was so desperately needed for our economy and that has reshaped our reputation from a litigation standpoint. We’ll keep you posted on the results.

[1] Pro Te: Solutio, Vol. 1, No. 3, p. 18 (July 2008).

[2] Miss. Code Ann. §11-1-60(2)(b) (2007). Subpart (2)(a) of §11-1-60 places a $500,000.00 cap on non-economic damages in medical malpractice actions.

[6] Percy, Checking Up on the Medical Malpractice Liability Insurance Crisis in Mississippi: Are Additional Tort Reforms the Cure?, 73 MSLJ 1001, (Miss. L. J. 2004).

[7] Ross, Charlie, Op-ed, Jackson Action: In Mississippi, Tort Reform Works, Wall St. J., September 15, 2005. “Prior to the legislation, […] insurance companies were fleeing the state. Others were refusing to write new policies. The medical field was particularly strained: Liability insurance was in many cases unaffordable, and in some cases unavailable.”

[9] Arrington v. Galon-Med, Inc., 947 So.2d 719 (La. 2007) (dismissing challenge to limitation statute when raised for first time on appeal and stating that litigants must raise constitutional challenges in trial court rather than appellate court).

[10] Lymas v. Double-Quick, Inc., No. 2007-0072, (Circuit Court of Humphreys County).

[11] Lymas v. Double-Quick, Inc., No. 2007-0072, Order, (Circuit Court of Humphreys County Sept. 18, 2008).

[12] Wells by Wells v. Panola County Bd. of Educ., 645 So. 2d 883, 888 (Miss. 1994).

[13] Pathfinder Coach Division of Superior Coach Corp. v. Cottrell, 62 So.2d 383, 385 (Miss. 1953).

[15] Wells by Wells v. Panola County Bd. of Educ., 645 So. 2d 883, 890 (Miss. 1994).

[17] To increase the likelihood of gaining support from an agency such as these, you must notify them of the matter and issue as soon as possible. Each agency has a process for submitting proposals which can be found on the agency’s website. In addition, the law firm handling the issue likely has a relationship with one or more of the entities that can be a good starting point.


Contributory and Comparative Negligence

State laws were developed to regulate negligence. The two main negligence legal doctrines are comparative negligence and contributory negligence. Few states still have the traditional contributory negligence, where any fault on the part of the plaintiff will prevent them from recovering for his or her losses, even if he or she was only 1% at fault and the defendant was 99% fault. Fortunately for plaintiffs, most states, Mississippi included, no longer have this harsh negligence regime and have moved onto using comparative negligence.

Comparative negligence allows a plaintiff to recover even if he or she was partially at fault. The two types of comparative negligence are pure and modified. In a state with “pure” comparative negligence, the claimant can collect from a defendant, even if he or she was found 99% at fault by the judge or jury. The defendant would still bem liable for his 1% fault. Mississippi has a pure comparative negligence system. In a “modified comparative fault” court system, used by the majority of states now, the plaintiff only recovers if he or she is found less than 50% or 51% at fault. The exact percentage depends on the laws of the state.


2010 Mississippi Code TITLE 91 - TRUSTS AND ESTATES Chapter 7 - Executors and Administrators. 91-7-251 - Liability of executor or administrator of an executor de son tort.

The executor or administrator of an executor de son tort shall be liable to a recovery to the extent of the value of the property received or held by such executor de son tort, if sufficient assets shall have been received to pay the same. Any one who may have become liable as executor de son tort in any other state shall be liable to be sued in this state as such by any creditor, legatee, or distributee.

Sources: Codes, 1857, ch. 60, art. 133 1871, § 1191 1880, § 2088 1892, § 1927 1906, § 2101 Hemingway's 1917, § 1769 1930, § 1721 1942, § 618.

Disclaimer: These codes may not be the most recent version. Mississippi may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.

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Contents

Tortious interference with contract rights Edit

Tortious interference with contract rights can occur when one party persuades another to breach its contract with a third party (e.g., using blackmail, threats, influence, etc.) or where someone knowingly interferes with a contractor's ability to perform his contractual obligations, preventing the client from receiving the services or goods promised (e.g., by refusing to deliver goods). The tortfeasor is the person who interferes with the contractual relationship between others. When a tortfeasor is aware of an existing contract and deliberately induces a breach by one of the contract holders, it is termed "tortious inducement of breach of contract." [4]

Tortious interference with a business relationship Edit

Tortious interference with business relationships occurs where the tortfeasor intentionally acts to prevent someone from successfully establishing or maintaining business relationships with others. This tort may occur when one party knowingly takes an action that causes a second party not to enter into a business relationship with a third party that otherwise would probably have occurred. An example is when a tortfeasor offers to sell a property to someone below market value knowing they were in the final stages of a sale with a third party pending the upcoming settlement date to formalize the sale writing. Such conduct is termed "tortious interference with a business expectancy". [2]

Negligent tortious interference Edit

The above situation are actionable only if someone with actual knowledge of, and intent to interfere with, an existing contract or expectancy between other parties, acts improperly with malicious intent and actually interferes with the contract/expectancy, causing economic harm. [2] Historically, there has not been actionable cause if the interference was merely negligent. [5] However, for some jurisdictions recognize such claims, [6] although many do not. [7] A tort of negligent interference occurs when one party's negligence damages the contractual or business relationship between others, causing economic harm, such as, by blocking a waterway or causing a blackout preventing the utility company from being able to uphold its existing contracts with consumers. [3]

An early—perhaps the earliest—instance of recognition of this tort occurred in Garret v Taylor, 79 Eng. Rep. 485 (K.B. 1620). In that case, the defendant drove customers away from the plaintiff's quarry by threatening them with mayhem and also threatening to "vex [them] with suits." The King's Bench court said that “the defendant threatened violence to the extent of committing an assault upon . customers of the plaintiff . whereupon ‘they all desisted from buying.’’ The court therefore upheld a judgment for the plaintiff.

In a similar case, Tarleton v McGawley, 170 Eng. Rep. 153 (K.B. 1793), the defendant shot from its ship, Othello, off the coast of Africa upon natives while "contriving and maliciously intending to hinder and deter the natives from trading with" plaintiff's rival trading ship, Bannister. This action caused the natives (plaintiff's prospective customers) to flee the scene, depriving the plaintiff of their potential business. The King's Bench court held the conduct actionable. The defendant claimed, by way of justification, that the local native ruler had given it an exclusive franchise to trade with his subjects, but the court rejected this defense.

The tort was described in the case of Keeble v Hickeringill, (1707) 103 Eng. Rep. 1127, styled as a "trespass on the case". In that case, the defendant had used a shotgun to drive ducks away from a pond that the plaintiff had built for the purpose of capturing ducks. Thus, unlike the foregoing cases, here the actionable conduct was not directly driving the prospective customers away, but rather eliminating the subject matter of the prospective business. Although the ducks had not yet been captured, the Justice Holt wrote for the court that "where a violent or malicious act is done to a man's occupation, profession, or way of getting a livelihood, there an action lies in all cases." The court noted that the defendant would have the right to draw away ducks to a pond of his own, raising as a comparison a 1410 case in which the court deemed that no cause of action would lie where a schoolmaster opened a new school that drew students away from an old school.

The application of the above has since been modified in UK law. Into the OBG v Allan [2008] 1 AC 1. Wrongful interference: the unified theory which treated causing loss by unlawful means as an extension of the tort of inducing a breach of contract was abandoned inducing breach of contract and causing loss by unlawful means were two separate torts. inducing a breach of contract was a tort of accessory liability, and an intention to cause a breach of contract was a necessary and sufficient requirement for liability a person had to know that he was inducing a breach of contract and to intend to do that a conscious decision not to inquire into the existence of a fact could be treated as knowledge for the purposes of the tort that a person who knowingly induced a breach of contract as a means to an end had the necessary intent even if he was not motivated by malice but had acted with the motive of securing an economic advantage for himself that, however, a breach of contract which was neither an end in itself nor a means to an end but was merely a foreseeable consequence of a person's acts did not give rise to liability and that there could be no secondary liability without primary liability, and therefore a person could not be liable for inducing a breach of contract unless there had in fact been a breach by the contracting party.

Causing loss by unlawful means: acts against a third party counted as unlawful means only if they were actionable by that third party if he had suffered loss that unlawful means consisted of acts intended to cause loss to the claimant by interfering with the freedom of a third party in a way which was unlawful as against that third party and which was intended to cause loss to the claimant, but did not include acts which might be unlawful against a third party but which did not affect his freedom to deal with the claimant. Strict liability for conversion applied only to an interest in chattels and not to chooses in action this was too radical to impose liability for pure economic loss on receivers who had been appointed and had acted in good faith. This also left open the position where they breached the duty of good faith.

  1. Tortious interference of business – When false claims and accusations are made against a business or an individual's reputation in order to drive business away.
  2. Tortious interference of contract – When an individual uses "tort" (a wrongful act) to come between two parties' mutual contract.

Although the specific elements required to prove a claim of tortious interference vary from one jurisdiction to another, they typically include the following:

  1. The existence of a contractual relationship or beneficial business relationship between two parties.
  2. Knowledge of that relationship by a third party.
  3. Intent of the third party to induce a party to the relationship to breach the relationship.
  4. Lack of any privilege on the part of the third party to induce such a breach.
  5. The contractual relationship is breached.
  6. Damage to the party against whom the breach occurs. [8]

The first element may, in employment-at-will jurisdictions, be held fulfilled in regards to a previously unterminated employer/employee relationship.

In California, these are the elements of negligent interference with prospective economic advantage, which the plaintiff must establish:

  1. an economic relationship existed between the plaintiff and a third party which contained a reasonably probable future economic benefit or advantage to plaintiff
  2. the defendant knew of the existence of the relationship and was aware or should have been aware that if it did not act with due care its actions would interfere with this relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage of the relationship
  3. the defendant was negligent and
  4. such negligence caused damage to plaintiff in that the relationship was actually interfered with or disrupted and plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship. [9]

Some cases add that a defendant acts negligently only if "the defendant owes the plaintiff a duty of care." [10]

California and most jurisdictions hold that there is a privilege to compete for business. “Under the privilege of free competition, a competitor is free to divert business to himself as long as he uses fair and reasonable means. Thus, the plaintiff must present facts indicating the defendant’s interference is somehow wrongful—i.e., based on facts that take the defendant’s actions out of the realm of legitimate business transactions.” [11] "[T]he competition privilege is defeated only where the defendant engages in unlawful or illegitimate means." [12] "Wrongful" in this context means “independently wrongful”—that is, "blameworthy" or " independently wrongful apart from the interference itself." [13] This may be termed use of improper means. “Commonly included among improper means are actions which are independently actionable, violations of federal or state law or unethical business practices, e.g., violence, misrepresentation, unfounded litigation, defamation, trade libel or trade mark infringement.” [14] Other examples of "wrongful conduct" are "fraud, misrepresentation, intimidation, coercion, obstruction or molestation of the rival or his servants or workmen." [15]

Typical legal damages for tortious interference include economic losses, if they can be proven with certainty, and mental distress. Additionally punitive damages may be awarded if malice on the part of the wrongdoer can be established.

Equitable remedies may include injunctive relief in the form of a negative injunction that would be used to prevent the wrongdoer from benefiting from any contractual relationship that may arise out of the interference, i.e., the performance of a singer who was originally contracted with the plaintiff to perform at the same time.

Tortious interference with an expected inheritance - One who, by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received, is subject to liability to the other for loss of the inheritance or gift. [16]


Saunders v. Alford

James H. Mathis, Mathis & Hill, Corinth, for appellant.

Charles M. Merkel, Jr., John H. Cocke, Merkel & Cocke, Clarksdale, for appellee.

BANKS, Justice, for the Court:

We are called upon to abolish the cause of action for criminal conversation. Finding that this cause of action has outlived its usefulness, we declare its demise and reverse and render the judgment entered against the appellant, Charles Saunders in favor of appellee and cross appellant, Jeffy Alford.

Jeffy and Patricia Alford were married on February 17, 1956. Jeffy farmed for a *1215 living while Patricia worked at the Billups Petroleum Company in Leflore County. In December of 1960, Patricia Alford met the vice-president of Billups, Charles Saunders. Saunders was approximately forty years old and wealthy. Alford, according to her own testimony, was twenty-four years old and unhappy. The couple became involved in a sexual relationship, meeting on their lunch breaks and on Saturdays at Saunders' vacant townhouse. Though both were married, Saunders and Alford continued their relationship for more than two decades. During this time, Saunders lavished Patricia with gifts and promises of marriage. He requested that Patricia quit her job. Saunders became very attached to Alford's three daughters requesting that the girls call him Daddy-O.

In February of 1980, Patricia Alford sought a divorce from her husband, Jeffy, alleging that he was an habitual drunk. Ms. Alford testified that Charles Saunders was instrumental in her decision to institute this action. In May of that year, Jeffy and Patricia filed an Amended Bill of Complaint for Divorce seeking to terminate the marriage on grounds of irreconcilable differences. The Alfords were divorced on those grounds on July 31, 1980.

Jeffy Alford instituted this action in the Circuit Court of Leflore County against Charles Saunders, alleging the torts of alienation of affection and criminal conversation. He asserted that Saunders had maintained an illicit affair with his wife for more than twenty-three years. The Complaint sought actual damages of $5,000,000.00 and punitive damages in the same amount.

On June 9, 1988, the case was tried. The jury found for Charles Saunders on the issue of alienation of affection but, on the claim of criminal conversation, found for Jeffy Alford awarding him $7,500.00 in actual damages and $20,000.00 in punitive damages.

This appeal and cross appeal followed, wherein Saunders challenges the underlying causes of action and Alford challenges the trial court's order limiting damages for criminal conversation to the acts occurring within six years of the filing of the suit. Because we dispose of this matter in deciding the former issue, we do not reach the cross appeal.

The torts of alienation of affection and criminal conversation, also known as "heart balm" actions, originated on the common-law belief that wives were the chattel of their spouse. The purpose of a cause of action for alienation of affection is the "protection of the love, society, companionship, and comfort that form the foundation of a marriage. ." Norton v. MacFarlane, 818 P.2d 8, 12 (Utah 1991). See also W. Keeton, Prosser & Keeton on Torts, § 124, at 918 (5th ed. 1984). The right sought to be protected is that of consortium. Note, Criminal Conversation: Civil Action for Adultery, 25 Baylor L.Rev. 495 (1973). It consists in depriving one of the affections of the other. Prosser & Keeton on Torts, at 918.

The elements of a cause of action have been recognized by some courts as: (1) wrongful conduct of the defendant (2) loss of affection or consortium and (3) causal connection between such conduct and loss. See Bearbower v. Merry, 266 N.W.2d 128 (Iowa 1978) Giltner v. Stark, 219 N.W.2d 700 (Iowa 1974) Hunt v. Hunt, 309 N.W.2d 818 (S.D. 1981). The claim for this tort accrues when "the alienation or loss of affection is finally accomplished." Overstreet v. Merlos, 570 So. 2d 1196 (Miss. 1990) (citing Dorbrient v. Ciskowski, 54 Wis.2d 419, 195 N.W.2d 449 (1972)). A cause of action for alienation of affection does not require that the defendant committed adultery with the plaintiff's spouse. Camp v. Roberts, 462 So. 2d 726 (Miss. 1985).

Twenty states and the District of Columbia have abolished the tort by legislative initiative.[1] Three states have abolished the *1216 tort by judicial decree.[2] By statute, six jurisdictions have limited the cause of action to permit injunctive relief only and have disallowed the award of monetary damages.[3] The courts of Louisiana have never recognized alienation actions. Moulin v. Monteleone, 165 La. 169, 115 So. 447 (1927). We have recently recognized the continued viability of the tort of alienation of affection. Overstreet v. Merlos, 570 So. 2d 1196 (Miss. 1990). See also Camp v. Roberts, 462 So. 2d 726 (Miss. 1985).

The tort of criminal conversation, on the other hand, is no more or less than an act of adultery between the defendant and the plaintiff's spouse. "The right protected is the exclusive right of one spouse to sexual intercourse with the other." Bearbower v. Merry, 266 N.W.2d 128, 134 (Iowa 1978). At common law, the "husband was regarded as having a property right in the body of his wife and an exclusive right to the personal enjoyment of her. The wife's adultery was therefore considered to be an invasion of the husband's property rights." Kline v. Ansell, 287 Md. 585, 414 A.2d 929, 930 (1980). As noted by one court, "criminal conversation comes closest in form to a strict liability tort." Fadgen v. Lenkner, 469 Pa. 272, 365 A.2d 147, 149 (1976). The cause of action is made out upon the plaintiff's proof that, while married to the plaintiff, the plaintiff's spouse and the defendant engaged in at least one single act of sexual intercourse. Id. The only defenses to these actions appear to be the consent of the plaintiff and the statute of limitations.

Twenty-four states and the District of Columbia have abolished the tort of criminal conversation by legislative enactment.[4] Eight states have abolished the tort by judicial decree.[5]

Several arguments have been advanced for the abolition of it. These include: (1) a woman is no longer the property of her husband (2) the tort has no deterrent effect (3) a cause of action may be brought for vindictive purposes (4) the potential for abuse is great (5) the tort is devoid of any defenses and (6) determining damages is difficult. Some of these arguments have been accepted by the courts which abolished criminal conversation by judicial decree.

The most recent court to judicially abolish the tort of criminal conversation is the Utah Supreme Court. In Norton v. MacFarlane, 818 P.2d 8 (Utah 1991), the court found the tort had no useful purpose. The court reasoned that the "tort is not designed to indemnify the aggrieved spouse for any loss to the marriage relationship. Indeed, a damage award may well be a complete windfall to the plaintiff." Id. at 16. The court noted that a cause of action for criminal conversation may be brought because of greed and vindictiveness. The court also found that this cause of action has little relationship to restoration or preservation of the marriage. The Utah court also stated that

the tort may impose large punitive damages on one of two parties to a mutual act, even though the one held liable under the law was not the aggressor and was less culpable. Whether the offending spouse is the initiator, or intercourse occurs because of the mutual desire of both parties, or the offending spouse is wholly passive, the offending spouse always acts consensually. Thus, despite the inevitable contributing fault of the offending spouse, the tort imposes total *1217 liability for the act of two people on only one of them.

The court also found that the tort of criminal conversation is unnecessary as long as a cause of action for alienation of affection is available. "To the extent that the tort of criminal conversation provides a cause of action for adultery when the marriage commitment is dead, it serves no useful purpose in awarding damages. If the marriage commitment of the spouses is not dead, the tort of alienation of affections provides an adequate legal remedy." Id. at 17.

In abolishing the tort of criminal conversation, the South Dakota Supreme Court held that heart balm torts are "outmoded archaic holdovers" and "overriding considerations of reality must supersede the perpetuation of alienation or criminal conversation actions." Hunt v. Hunt, 309 N.W.2d 818, 821-22 (S.D. 1981). The court abolished the tort of criminal conversation, but left abolishment of alienation of affections to the state legislature.

The court was concerned that there were no defenses to the tort of criminal conversation.

Consent of the wife is no defense. The fact that the wrongdoer did not know the wife was married but believed her to be single is not a defense. The fact that the wife represented herself as single is not a defense. The fact that the wife was the aggressor is not a defense. The fact that she has been neglected or mistreated by her husband is not a defense. The fact that she and her husband were separated through his fault is no defense.

Id. at 821 (quoting Felsenthal v. McMillan, 493 S.W.2d 729, 731 (Tex. 1973) (Steakley, J., dissenting)). The Hunt court also found the threat of abuse in this type of action to be great. The "potential for abuse . is clear since `the threat of exposure, publicity, and notoriety is more than sufficient to breed corruption, fraud and, misdealings on the part of unscrupulous persons in bringing unjustified and maliicous [sic] suits.'" Id. at 822 (quoting Note, Criminal Conversation: Civil Action for Adultery, 25 Baylor L.Rev. 495, 499 (1973)).

In Kline v. Ansell, 287 Md. 585, 414 A.2d 929 (1980), the Court of Appeals of Maryland emphasized several problems with the tort of criminal conversation. The court noted that the action is "notorious for affording a fertile field for blackmail and extortion" and action may be brought "not for the purpose of preserving the marital relationship, but rather for purely mercenary or vindictive motives." Id. 414 A.2d at 931. The court also found that this tort is "incompatible with today's sense of fairness" because there are no defenses to a cause of action. Id. Concededly, the court chose to abolish the tort of criminal conversation on state constitutional grounds not applicable here. The court found that only a man could sue or be sued for criminal conversation and this violated that state's equal rights amendment. The law in Maryland "provide[d] different benefits for and imposed different burdens upon citizens based solely upon their sex." Id. at 933. Criminal conversation as applied in Mississippi is available equally to men and women.

In Bearbower v. Merry, 266 N.W.2d 128 (Iowa 1978), the Iowa Supreme Court judicially abolished the tort of criminal conversation because of the lack of defenses to a cause of action. The court, quoting the Pennsylvania Supreme Court, stated that it was "unreasonable to impose upon a defendant such harsh results without affording any real opportunity to interject logically valid defenses. ." Id. at 135 (quoting Fadgen v. Lenkner, 469 Pa. 272, 365 A.2d 147 (1976). The court also found that "a fundamental flaw in the criminal conversation remedy . is its insensitive imposition without regard to the viability of the marriage relationship, or to the fact . that relationship may not have been affected adversely. In short, recovery may be it allowed where stability of the marriage survives unimpaired." Id. 266 N.W.2d at 135.

The first court to judicially abolish criminal conversation was the Pennsylvania Supreme Court in 1976 in the case of Fadgen *1218 v. Lenkner, 469 Pa. 272, 365 A.2d 147 (1976). The court found that it was its duty to abolish such actions "where `reason and a right sense of justice recommend it.'" Id. 365 A.2d at 151 (citations omitted). "[W]hen it is determined that a past precedent is no longer in accord with modern realities, and the rationale justifying the old rule no longer finds support, then the pledge to certainty gives way `to new conditions and to the persuasion of superior reasoning.'" Id. at 152 (citation omitted). The court abolished the tort due to the threat of abuse of this action and the lack of defenses available to the defendant.

It appears that we first recognized the torts of alienation of affection and criminal conversation in the case of Brister v. Dunaway, 149 Miss. 5, 115 So. 36 (1927). In Brister, this Court stated: "To sustain an action for criminal conversation, two things must be established, (1) an actual marriage between the spouses, and (2) sexual intercourse between the defendant and the guilty spouse during the coverture." Id. 115 So. at 38 (quoting 30 C.J. § 1036, p. 1154). The Brister court also noted that separation of the spouses would not serve as a defense to a cause of action for criminal conversation.

In the 1985 decision of Camp v. Roberts, 462 So. 2d 726 (Miss. 1985), the plaintiff's claims for alienation of affections and criminal conversation were dismissed in the lower court for lack of in personam jurisdiction. The question on appeal was whether the defendant had committed a viable tort, in whole or in part, under the facts as alleged in the complaint. In answering the question in the affirmative, this Court enumerated that

[b]oth alienation of affection and criminal conversation are recognized as torts in Mississippi. Walter v. Wilson, 228 So. 2d 597 (Miss. 1969). That case held that where a husband is wrongfully deprived of his rights to the "services and companionship and consortium of his wife," he has a cause of action "against one who has interfered with his domestic relations." 228 So. 2d at 598. The husband might then sue for criminal conversation, which may be proved by showing the defendant committed adultery with the plaintiff's wife and/or alienation of affection, which does not require proof of adultery. In any event, both causes of action are recognized in Mississippi.

Camp, 462 So. 2d at 727. In the recent decision of Overstreet v. Merlos, 570 So. 2d 1196, 1198 (Miss. 1990), we refused to reach the issue of abolition of the tort of alienation of affections, because it had not been raised below.

We are not here concerned with the tort of alienation of affections. That cause was decided adversely to the plaintiff and he does not challenge that disposition by cross appeal. Our task is but to consider the extent to which it is advisable to judicially abolish the tort of criminal conversation and whether we have the authority to do so.

The plaintiff argues that it is not within our province to abolish common law torts and that even if it were, public policy considerations dictate a maintenance of this cause of action. Addressing the last first, plaintiff argues essentially that the marriage relationship is worth protecting and that interest is sufficient to maintaining the tort of criminal conversation. Plaintiff clings, however, to a linkage between the tort of criminal conversation and that of alienation of affections. Clearly, he recognizes that it is the latter tort which is better suited as a deterrent protecting the marital relation. In an action for criminal conversation evidence of an effect on the marital relationship is irrelevant.

Plaintiff asserts that abolition of the tort would allow injury to go unredressed. The problem is that he does not identify how he is injured in person, property or reputation. Detached as it is from an actual injury to the marital relation, criminal conversation requires no actual injury at all. It is born of the notion that the cuckold spouse is presumptively injured, or the notion that the spouse has some property interest in *1219 the chastity of the other. Such presumptions and notions have no vitality in today's society.

That our statutes still provide a criminal sanction for adultery gives rise to two of plaintiff's arguments. The first argument is that the tort of criminal conversation as the civil counterpart for conduct deemed criminal is still a valid expression of our public policy. The second argument is that because this tort is implicitly recognized by the legislative enactment of the criminal statute, we are without power to disturb it without finding it unconstitutional. These arguments are unpersuasive.

There is, in fact, no general crime of adultery. Except in the case of pupils and teachers, guardians and wards, and persons forbidden to marry between whom a single act of adultery is prohibited, our state prohibits only unlawful "cohabitation" in "adultery or fornication." Miss. Code Ann. § 97-29-1, -3, -5, -7, -9 (1972). These statutes are codified as "Crimes Against the Public Morals and Decency," Miss. Code Ann., Title 97, Chapter 29, not "Crimes Against the Person," Miss. Code Ann., Title 97, Chapter 3, or "Crimes Against Property," Miss. Code Ann. Title 97, Chapter 17. There is no indication of any intent to give any individual a private cause of action for their breach. Moreover, unlawful cohabitation, unlike criminal conversation, requires a showing of more than a single act of adultery. There must be at least an "habitual concubinage or laying together." Granberry v. State, 61 Miss. 440 (1984) Cutrer v. State, 154 Miss. 80, 121 So. 106 (1929). The existence of criminal sanctions for conduct involving adultery affords plaintiff nothing.

Finally, plaintiff contends that this Court has never abolished a common law tort and lacks the power to do so. He suggests that while it is within the prerogative of this court to abolish immunities, expanding the right of injured parties to seek redress, e.g. Burns v. Burns, 518 So. 2d 1205 (Miss. 1988), Pruett v. City of Rosedale, 421 So. 2d 1046 (Miss. 1982) we are constitutionally bound to maintain all common law torts until they are abolished by the legislature. He cites our frequent pronouncements to the effect that where no statute governs, the common law prevails. Tuggle v. Williamson, 450 So. 2d 93 (Miss. 1984) Munford, Inc. v. Peterson, 368 So. 2d 213 (Miss. 1979).

While it is true that in Burns and Pruett we expanded access, the creation of common law is not a one-way street. Indeed, when this court adopted the doctrine of spousal immunity and initiated the doctrine of parental immunity, it contracted the litigative rights of classes of plaintiffs, just as surely as it expanded rights in Burns and Pruett. The common law is not static. What the court gives it can take away. This Court faces no constitutional impediment to ceasing to recognize criminal conversation as a viable tort.

For the several reasons enumerated above we conclude that the tort of criminal conversation has outlived its usefulness. It follows that we reverse and render on the appeal and render on the cross appeal.

REVERSED AND RENDERED ON DIRECT APPEAL AND RENDERED ON CROSS APPEAL.

ROY NOBLE LEE, C.J., HAWKINS, P.J., and PRATHER, SULLIVAN, and McRAE, JJ., concur.

DAN M. LEE, P.J., dissents with separate written opinion, joined by PITTMAN, J.

ROBERTS, J., not participating according to Supreme Court Internal Rules.

DAN M. LEE, Presiding Judge, dissenting:

I write to respectfully express my disagreement with the decision reached in this case. Contrary to the opinion of the majority, the tort of criminal conversation has justifications stronger than the property rights of one spouse in the body of the other. The foremost is preservation of marital harmony. Furthermore, I see no unfairness in a gender neutral rule that *1220 says in effect, "if you choose to intermeddle in the domestic relationship of another, you are subject to civil suit."

Therefore, I would retain the cause of action recognized by this Court in Brister v. Dunaway, 149 Miss. 5, 115 So. 36 (1927), and re-affirmed in Walter v. Wilson, 228 So. 2d 597 (Miss. 1969) and Camp v. Roberts, 462 So. 2d 726 (Miss. 1985). The judgment of the lower court should be affirmed.

PITTMAN, J., joins this dissent.

[1] Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Indiana, Maine, Maryland, Michigan, Minnesota, Montana, Nevada, Oregon, Texas, Virginia, West Virginia, Wisconsin, and Wyoming.

[2] Idaho, Iowa, and Washington.

[3] Alabama, Florida, New Jersey, New York, Ohio, and Vermont.

[4] Alabama, California, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Maryland, Michigan, Minnesota, Montana, Nevada, New Jersey, New York, North Carolina, Ohio, Oregon, Texas, Vermont, Virginia, Wisconsin, and Wyoming.

[5] Iowa, Maryland, New Hampshire, Oklahoma, Pennsylvania, South Dakota, Utah, and Washington.


Attorney: Tort reform working in Mississippi

WASHINGTON (Legal Newsline) - Tort reform in Mississippi has brought about a substantial improvement in the state's medical liability environment, according to a recent medical journal article.

The article, published in the August edition of the Journal of the American College of Obstetricians and Gynecologists, was written by Mark A. Behrens. Behrens, of Washington, D.C., law firm Shook, Hardy & Bacon LLP, also serves as counsel for the American Tort Reform Association.

Behrens' article looks at the impact of tort reform in Mississippi on physicians insured by the Medical Assurance Company of Mississippi. MACM is the leading medical liability insurer in the state.

Mississippi, once known as the "lawsuit capitol of the world," enacted a comprehensive tort reform in 2004.

The 2004 reform included several laws that strengthened and went beyond those enacted in 2002.

In late 2002, a special session of the Mississippi Legislature passed legislation, House Bill 2, which made important changes to the state's medical liability laws. It placed a $500,000 limit on noneconomic damages, such as pain and suffering, applicable to most medical negligence cases. It also generally required medical malpractice plaintiffs' attorneys to consult with an expert before filing suit.

In addition, HB 2 required plaintiffs to give defendants 60 days written notice before commencing a medical liability lawsuit abolished joint liability for noneconomic damages for any defendant found to be less than 30 percent at fault and provided heightened pleading requirements for cases involving medical professionals who prescribe prescription drugs.

During the same special session, the Legislature enacted HB 19. Among other things, the bill required lawyers to file lawsuits in counties with some relationship to the facts of the case provided for modest caps on punitive damages prevented duplicative recovery of "hedonic" or lost enjoyment of life damages limited advertising by out-of-state attorneys and authorized a small penalty for frivolous pleadings.

In June 2004 -- during another special session -- the Legislature enacted a more comprehensive civil justice reform bill, HB 13.

HB 13 created a hard limit of $500,000 on noneconomic damages in medical liability cases, removing exceptions found in the 2002 law and scheduled increases to the cap.

The legislation also provided that a medical negligence suit against a licensed health care provider shall be brought in the county in which the alleged act or omission occurred, and venue must be proper as to each plaintiff.

In addition, the legislation limited punitive damages that may be awarded against medium and small businesses abolished joint liability for all defendants provided innocent product sellers with greater protection against being pulled into lawsuits directed at manufacturers and limited noneconomic damages for civil defendants (other than health care liability defendants) at $1 million, keeping in place the $500,000 limit for medical liability actions.

According to the Institute for Legal Reform, the 2004 tort reform package led to "measurable improvements."

"These reforms helped pull the state out of a medical liability crisis, whereby high premiums and an exodus of insurers had led physicians to leave the state, causing shortages in critical medical services. In fact, the state's tort reforms have lowered medical liability premiums by as much as 60 percent and reduced medical liability claims 91 percent from their peak," the institute said in its Lawsuit Climate 2010 report.

In its report, ILR still ranked Mississippi near the bottom of its survey, saying it remains difficult for defendants due to the state's plaintiff-friendly judges and juries. The institute, an affiliate of the U.S. Chamber of Commerce, owns Legal Newsline.

In Behrens' article, data regarding lawsuits against physicians insured by MACM and MACM-insured ob-gyns in particular, were compared by year from 1986 to 2010. The data encompassed the periods before and after the implementation of the state's tort reform legislation. In addition, MACM medical liability premiums were compared by year from 2000 to 2010.

Behrens found that the number of tort lawsuits against MACM-insured physicians, especially ob-gyns, has fallen dramatically.

"During the five-year period (2000-2004) leading up to and including the implementation of tort reform, MACM-insured ob-gyns experienced an average of 44 lawsuits per year, with the pre-tort reform years accounting for most of the lawsuits. In the five-year period (2005-2009) after the implementation of tort reform, MACM-insured ob-gyns experienced a sharp drop in lawsuits, annually averaging almost 15 lawsuits," he wrote.

The data, Behrens says, does not establish the extent to which any particular aspect of the reform may be credited with improving the state's medical liability climate however, he believes the $500,000 limit on noneconomic damages was the most significant.

"It is noteworthy that the number of MACM-insured physicians increased in Mississippi after the implementation of tort reform. The data is consistent with studies finding that statutory limits on noneconomic damages have a positive effect on where physicians locate their practices," he wrote.

"More physicians practicing in the state presumably would be associated with more lawsuits in the absence of tort reform, not fewer."

Medical liability insurance premiums also have been reduced and refunded, Behrens found.

"From 2000 to 2004, MACM insurance premiums escalated 98 percent, reflecting the frequency and cost of medical liability litigation in Mississippi before the passage of tort reform. By late 2004, the problems in malpractice insurance seem to have abated," he wrote.

"Doctors covered by MACM did not receive an increase in premiums in 2005. Premiums were reduced, and refunds were given each year from 2006 to 2010."

From Legal Newsline: Reach Jessica Karmasek by email at [email protected]

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