Failure to Comply with Tort Claims Act Defeats Suit
Post 5064
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In April Holifield And Jeffery Holifield v. Highland Community Hospital, No. 2023-CA-01342-COA, Court of Appeals of Mississippi (April 15, 2025) the Court of Appeals highlighted the issues surrounding proper notice under the Mississippi Tort Claims Act (MTCA) and the relationship between HCH and Forrest General Hospital (FGH).
FACTUAL BACKGROUND
Filing of Complaint
The Holifields filed a medical-negligence complaint against HCH on April 5, 2023, for injuries sustained during a procedure on November 5, 2021. Prior communication with HCH’s insurer was initiated by their attorney in January 2022.
Notice of Claim Issues
A notice-of-claim letter was sent to HCH on October 5, 2022, but there was uncertainty regarding its receipt. After discovering a change in administration, a new letter was delivered to the current administrator on October 28, 2022.
HCH’s Defense
HCH moved to dismiss the case on May 24, 2023, claiming it is not a separate entity from FGH and thus not capable of being sued under the MTCA.
Plaintiffs’ Motion to Amend
The plaintiffs sought to amend their complaint to substitute FGH for HCH, asserting that both entities received proper notice. HCH countered that FGH had not received any notice, and the statute of limitations had expired.
Trial Court’s Ruling
The circuit court denied the motion to amend on October 30, 2023, stating that HCH is a division of FGH and that the plaintiffs failed to serve proper notice to FGH’s chief executive officer before the statute of limitations expired.
DISCUSSION
Both of the trial court’s rulings at issue on appeal require a determination whether the Holifields properly served presuit notice on FGH in accordance with the MTCA.
One does not have to be a lawyer to sense that the organization, funding and operation of Memorial Hospital at Gulfport are matters capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
In the context of an MTCA case, pre-suit notice either does or does not occur prior to the filing of a complaint. There is little that can be pleaded in an amended complaint that can cure the failure to give proper pre-suit notice of an MTCA claim. The Holifields did not provide the statutorily required notice to FGH under the MTCA. The Court of Appeals concluded that trial court did not err in denying the motion to amend the complaint.
APPEAL OUTCOME
The Court of Appeals affirmed the dismissal, emphasizing that the failure to provide notice under the MTCA warranted dismissal of the case with prejudice.
The circuit court granted HCH’s motion to dismiss or for summary judgment and entered a final judgment of dismissal with prejudice on October 31, 2023. The circuit court also addressed the Mississippi Supreme Court’s recent holding in University of Mississippi Medical Center v. Aycock, 369 So.3d 534 (Miss. 2023), that although the plaintiffs there had “never filed the statutorily required notice with the hospital’s chief executive officer,” the case should be remanded to allow plaintiffs an opportunity to “establish equitable estoppel or waiver based on the medical center’s conduct by competent evidence.” The trial court concluded that Aycock was “distinguishable” because the Holifields “had no communication with FGH (only with a claims representative working on behalf of FGH),” and “HCH committed no acts or made no communicat[ions] which could have given Plaintiffs occasion to say they ‘relied’ upon such acts or communications in good faith or to their detriment.”
ZALMA OPINION
States, like Mississippi enacted statutes limiting suits against doctors and hospitals unless the plaintiff first gives written notice to the Defendant(s) of the intent to sue and providing an opportunity to create an opportunity for an early settlement. The plaintiffs failed to give notice to the correct parties before filling suit, a statutory condition precedent to maintaining a suit against the hospitals.
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Jury’s Findings Interpreting Insurance Contract Affirmed
Post 5105
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Madelaine Chocolate Novelties, Inc. (“Madelaine Chocolate”) appealed the district court’s judgment following a jury verdict in favor of Great Northern Insurance Company (“Great Northern”) concerning storm-surge damage caused by “Superstorm Sandy” to Madelaine Chocolate’s production facilities.
In Madelaine Chocolate Novelties, Inc., d.b.a. The Madelaine Chocolate Company v. Great Northern Insurance Company, No. 23-212, United States Court of Appeals, Second Circuit (June 20, 2025) affirmed the trial court ruling in favor of the insurer.
BACKGROUND
Great Northern refused to pay the full claim amount and paid Madelaine Chocolate only about $4 million. In disclaiming coverage, Great Northern invoked the Policy’s flood-exclusion provision, which excludes, in relevant part, “loss or damage caused by ....
Failure to Name a Party as an Additional Insured Defeats Claim
Post 5104
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Contract Interpretation is Based on the Clear and Unambiguous Language of the Policy
In Associated Industries Insurance Company, Inc. v. Sentinel Insurance Company, Ltd., No. 23-CV-10400 (MMG), United States District Court, S.D. New York (June 16, 2025) an insurance coverage dispute arising from a personal injury action in New York State Supreme Court.
The underlying action, Eduardo Molina v. Venchi 2, LLC, et al., concerned injuries allegedly resulting from a construction accident at premises owned by Central Area Equities Associates LLC (CAEA) and leased by Venchi 2 LLC with the USDC required to determine who was entitled to a defense from which insurer.
KEY POINTS
Parties Involved:
CAEA is insured by Associated Industries Insurance Company, Inc. ...
Exclusion Establishes that There is No Duty to Defend Off Site Injuries
Post 5103
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Attack by Vicious Dog Excluded
In Foremost Insurance Company, Grand Rapids, Michigan v. Michael B. Steele and Sarah Brown and Kevin Lee Price, Civil Action No. 3:24-CV-00684, United States District Court, M.D. Pennsylvania (June 16, 2025)
Foremost Insurance Company (“Foremost”) sued Michael B. Steele (“Steele”), Sarah Brown (“Brown”), and Kevin Lee Price (“Price”) (collectively, “Defendants”). Foremost sought declaratory relief in the form of a declaration that
1. it owes no insurance coverage to Steele and has no duty to defend or indemnify Steele in an underlying tort action and
2. defense counsel that Foremost has assigned to Steele in the underlying action may withdraw his appearance.
Presently before the Court are two ...
ZIFL Volume 29, Issue 10
The Source for the Insurance Fraud Professional
See the full video at https://lnkd.in/gK_P4-BK and at https://lnkd.in/g2Q7BHBu, and at https://zalma.com/blog and at https://lnkd.in/gjyMWHff.
Zalma’s Insurance Fraud Letter (ZIFL) continues its 29th year of publication dedicated to those involved in reducing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/ You can read the full issue of the May 15, 2025 issue at http://zalma.com/blog/wp-content/uploads/2025/05/ZIFL-05-15-2025.pdf
This issue contains the following articles about insurance fraud:
Health Care Fraud Trial Results in Murder for Hire of Witness
To Avoid Conviction for Insurance Fraud Defendants Murder Witness
In United States of America v. Louis Age, Jr.; Stanton Guillory; Louis Age, III; Ronald Wilson, Jr., No. 22-30656, United States Court of Appeals, Fifth Circuit (April 25, 2025) the Fifth Circuit dealt with the ...
Professional Health Care Services Exclusion Effective
Post 5073
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This opinion is the recommendation of a Magistrate Judge to the District Court Judge and involves Travelers Casualty Insurance Company and its duty to defend the New Mexico Bone and Joint Institute (NMBJI) and its physicians in a medical negligence lawsuit brought by Tervon Dorsey.
In Travelers Casualty Insurance Company Of America v. New Mexico Bone And Joint Institute, P.C.; American Foundation Of Lower Extremity Surgery And Research, Inc., a New Mexico Corporation; Riley Rampton, DPM; Loren K. Spencer, DPM; Tervon Dorsey, individually; Kimberly Dorsey, individually; and Kate Ferlic as Guardian Ad Litem for K.D. and J.D., minors, No. 2:24-cv-0027 MV/DLM, United States District Court, D. New Mexico (May 8, 2025) the Magistrate Judge Recommended:
Insurance Coverage Dispute:
Travelers issued a Commercial General Liability ...
A Heads I Win, Tails You Lose Story
Post 5062
Posted on April 30, 2025 by Barry Zalma
"This is a Fictionalized True Crime Story of Insurance Fraud that explains why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is designed to help everyone to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime."
Immigrant Criminals Attempt to Profit From Insurance Fraud
People who commit insurance fraud as a profession do so because it is easy. It requires no capital investment. The risk is low and the profits are high. The ease with which large amounts of money can be made from insurance fraud removes whatever moral hesitation might stop the perpetrator from committing the crime.
The temptation to do everything outside the law was the downfall of the brothers Karamazov. The brothers had escaped prison in the old Soviet Union by immigrating to the United...
