Mississippi Legislation to Drastically Reduce Liability for Property Owners

A bill to protect landowners from potential liability exposure is almost a reality for Mississippians.

The language within the bill would eliminate lawsuits against landowners in situations where injury was caused by a third party, unless claimants can prove:

(a) The conduct of said third party occurred on the property;
(b) The conduct of the person who owns, leases, operates, maintains or manages the property actively and affirmatively, with a degree of conscious decision-making, impelled the conduct of said third party; and (c) The third party’s conduct proximately caused the economic and noneconomic damages suffered by the injured party.

More soon.

Mississippi Supreme Court Rules that Daughter is Not Compelled to Arbitration with her Contracting Parents in Construction Defect Case

The Mississippi Supreme Court ruled that a homeowner’s daughter was not party to, nor an intended beneficiary of a contract with a foundation contractor such that her claims were not subject to arbitration.  The court ruled that she was not compelled to arbitrate and that her claims were ripe for adjudication in Perry County.

On June 10, 2013, Phillip Moore contracted with Olshan for repairs to the foundation
of the home he shared with his wife, Gloria Moore, and his adult daughter, Katelyn Moore.  Three years later, the entire family – Mom, Dad, and Daughter – sued Olshan for economic related damages arising from the foundation.  The lawsuit was segregated in that contract damages were sought by Phillip and Gloria only, while their daughter sought damages in tort for emotional distress.  The parties successfully moved to compel arbitration with the exception of those claims made by Katelyn, as she was not a party to the contract or third-party beneficiary.

Finding that Katelyn Moore was neither a third-party beneficiary to the foundation-repair contract, nor was she bound by direct-benefit estoppel, the Mississippi Supreme Court found that the daughter’s claims were wholly independent of the terms of the contract to which she was not a party. Therefore she was not allowed to enforce an arbitration clause respecting Katelyn Moore’s claims, which were unrelated to the contract.

In a well written dissent, Justice Chamberlin argues that Katelyn’s damages arise from her father entering into the contract with Olsham and should, therefore, be arbitrated with the remainder of the case.


OSHA delays implementation of Silica Regulations until 9/23

OSHA announced a 90 day delay for the launch of its silica guidelines and regulations.   We first reported on the guidelines, which were many years in the making, back during February 2016.

The delay appears to be administrative in nature and is not a departure from precedent.

If you would like to discuss this, or any other legal matters, contact Clay Olson at 843-224-6676.    Email clay@harperwhitwell.com

Mississippi Arbitration Proceeding and Judicial Estoppel in a similar US District Court Suit

What happens when one party to an arbitration no longer remains solvent, yet a successor entity remains viable, although not a party to an arbitration proceeding?  Mississippi recently decided that a separate action could be brought in US District Court against the non-contracting successor entity which was not barred by judicial estoppel.

Brief Facts

In 2009, RDS contracted with S&S Construction LLC to construct a building in Ocean Springs, Miss. The occupant, RDS, alleged there were problems with the roof leaking.

In 2011, contractor S&S Construction changed its name after being purchased by Abrams Group.  It was a subject of some debate as to whether or not S&S was doing business under the new name or, alternatively, no longer in existence.


RDS, as owner of the building, brought suit against S&S Construction as well as the successor, Abrams.   The suit was dismissed in favor of an arbitration clause and Abrams refused to consent, claiming it was not obligated as the contract containing the provision was with S&S Construction.  RDS was successful in the arbitration action against S&S and subsequently awarded over $200,000 which remains to be paid.   S&S has made claims of being insolvent.


Upon learning of S&S insolvency, RDS initiated a declaratory judgment action against Abrams and S&S seeking authority from the court that S&S and Abrams each be subject to the arbitration provision under successor liability.  Abrams sought to have the action barred under the theory of judicial estoppel, arguing that RDS had already attempted to fight the dispute in arbitration, and was now changing theories and strategy for purposes of maneuvering.

The Court found that RDS could proceed and its behavior was not inconsistent.

“RDS not only has asserted that Abrams and S&S are the same entity, but also has raised alternative arguments for liability based on successor liability, merger, and other theories, which is consistent with its assertions in the 2014 action. In short, it appears that RDS’s position has always been that S&S and Abrams are responsible for its damages. RDS’s decision to pursue S&S only in the previous action and to dismiss Abrams without prejudice in response to Abrams’ argument that it was not a signatory to the arbitration agreement at issue does not preclude it from making the claims it makes here and does not equate to asserting a legal position which is plainly inconsistent with a prior position.”

RDS Real Estate LLC v. Abrams Group Construction LLC, et al., No. 15-cv-361-LG-RHW, S.D. Miss.; 2016 U.S. Dist. LEXIS 125652