Move It, or Lose It
Hanco Corporation v. Goldman
Defendant did not assert workers compensation defense in a timely manner and lost the exclusive remedy
In Hanco Corporation v. Goldman, the Plaintiff’s husband was killed in a work accident where three workers were buried alive underneath dirt and claim while installing a sewer line. The decedent worker was hired out by a professional employer service to a general contractor and subcontractor. The professional employer service provided workers compensation coverage, and the Plaintiff sued the general contractor and subcontractor.
Defendants moved for summary judgment arguing that workers’ compensation insurance was the exclusive remedy for the family, which had already received those benefits. In 2006 the Mississippi Supreme Court held that when a defendant fails to reasonably and timely raise and pursue enforcement of any affirmative defense that would serve to stay or terminate litigation, it will ordinarily serve as a waiver.
While the defendant did cite the exclusive remedy in its initial answer to this complaint, it failed to file a summary judgment at that time. For more than two years, the defendant actively participated in litigation on the merits of the case. The defendant was involved with depositions and securing expert witnesses to call at trial. There was nothing that would justify such a delay. The defendant had ample opportunity to assert the exclusive remedy, and failed to do so. This constituted a waiver of that exclusive remedy protection.
For a copy of the decision, see:
https://courts.ms.gov/Images/Opinions/CO107101.pdf
What’s Your Motive?
Shirley Adams v. Graceland Care Center of Oxford
Defendant must prove that plaintiff/debtor tried to conceal her claim from the bankruptcy court in order to reap a windfall
The Plaintiff, whose mother died while living at Graceland Care Center, filed a suit against them in 2008 for wrongful death. Approximately four years prior, the Plaintiff filed a chapter 13 bankruptcy and was making payments. Plaintiff did not ever disclose the wrongful death case and completed her bankruptcy plan without amending. Once the defendants learned of the bankruptcy, they filed to dismiss the case. In response, the Plaintiff moved to reopen her bankruptcy case. The trial court in the wrongful death case granted the motions to dismiss.
The Plaintiff argued that her failure to disclose was inadvertent. The Mississippi Court of Appeals reversed and remanded.
“There is no dispute that Adams had a continuing duty to disclose her cause of action. Giving Adams the benefit of the doubt concerning the existence of a disputed material fact, we find that the evidence and testimony before us does not demonstrate that Adams’s failure to disclose, standing alone, amounted to a willfully false representation.
Although the Mississippi Supreme Court eliminated the adverse-party requirement for judicial estoppel, it did not disturb the requirement of a willfully false representation. See Clark, 131 So. 3d at 561-62 (¶21). In viewing the facts in the light most favorable to Adams, we find that no motive for concealment has been shown. The efforts by Adams to amend her schedules to list the cause of action are inconsistent with any motive for concealment. We cannot say that the evidence, when viewed in the light most favorably to Adams, shows that Adams intended to conceal her claim from the bankruptcy court in order to reap a windfall by preventing her creditors from recovering any proceeds from a potential judgment.”
For a copy of the decision, see:
http://courts.ms.gov/Images/Opinions/CO107074.pdf
Safety First
Galanis v. CMA Management Company
Summary judgment not allowed for defendant apartment complex when had “actual knowledge” that tenant had violent tendencies
In October, the Mississippi Supreme Court found that a victim of murder’s family can sue his landlord for failure to warn of his roommate’s violent tendencies. The roommate, Bobby Batiste, killed his roommate Andreas Galanis. Batiste, employed by the apartment complex as a security guard, had problems with previous roommate’s there. He complained to his landlord, 21 Apartments, about his previous roommate writing “I can’t take it anymore. I don’t want to get violent … I hope this get(s) resolved soon because I really don’t want to take matters in(to) my own hands.” Batiste failed a background check, but 21 Apartments still allowed him to renew his lease, and matched his with Galanis to be roommates.
In March 2008, Galanis realized that money was missing from his bank account and suspected Batiste. Galanis notified the police. Galanis confronted Batiste in their apartment. Batiste beat Galanis to death and one day later, Galanis’ body was found in the apartment.
Galanis’ mother and sister sued 21 Apartments for failure to provide safe premises, failure to warn, and failure to conduct proper background checks. The trial court granted 21 Apartments Motion for Summary Judgment, finding that the apartments owed no duty to Galanis. The Mississippi Court of Appeals affirmed. The Mississippi Supreme Court reversed the lower courts and found that the motion for summary judgment should not have been granted.
“Batiste’s letter provided 21 Apartments actual knowledge that Batiste had violent tendencies,” the Court wrote. “And with actual knowledge, when 21 Apartments suggested that Batiste and Galanis meet to consider being roommates, it had a duty to warn Galanis about Batiste’s threats against his former roommate.”
For a copy of the decision, see:
https://courts.ms.gov/Images/Opinions/CO106715.pdf