IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

E-Filed Document Nov 6 2017 23:02:20 2016-IA-01060-SCT Pages: 7 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI TARINIKA SMITH, INDIVIDUALLY AND ON BEHALF OF KAYDEN JOHNSON, DECEASED, SHELENA AUSTIN PREWITT, NATURAL MOTHER AND NEXT FRIEND OF XAVIER AUSTIN, a minor JAKILA MARTIN, a minor, MARLO WATKINS a minor and HELEN YANCY, a minor, LINDA CUNNINGHAM, GENERAL GUARDIANAND NEXT FRIEND OF TREVIN MAYS, a minor, and JERKISHA MAYS, a minor, CHRISTINE MAGEE, NATURAL MOTHER AND NEXT FRIED OF MONSHANNA WESTON, BRENDA WOODARD, NATURAL MOTHER AND NEXT FRIEND OF BRENAE WOODARD, a minor ANGELA CRAFT, NATURAL MOTHER AND NEXT FRIEND OF DEARYELL CRAFT, a minor KAYTANA DILLARD, NATURAL MOTHER AND NEXT FRIEND OF RONISHA DILLARD, a minor JERMAINE DILLARD, a minor, and QUASHOUNTA DILLARD, a minor APPELLANTS vs. CAUSE NO. 2016-IA-1060 CHURCH MUTUAL INSURANCE COMPANY AND ADLAI JOHNSON APPELLEES REPLY BRIEF OF THE APPELLANTS Appealed from the Circuit Court of Marshall County, Mississippi. This brief is filed by: Drayton D. Berkley 119 South Main Avenue Ste 500 Memphis, TN 38103 Telephone: 901-322-8706 Facsimile: 901-881-0316 e-mail: attorneyberkley@gmail.com Oral Argument Requested C:\Users\Drayton\Desktop\drayton berkley\drayton Berkley\SMITH, TARINIKA\PLEADINGS\PETITION FOR INTERLOCUTORY APPEAL\November 8, 2017 Reply Brief.doc

TABLE OF CONTENTS Page Numbers Table of Contents.2 Table of Authorities.....2-3 Reply Argument..3-6 Conclusion....6 TABLE OF AUTHORITIES A. Cases 66 Federal Credit Union v. Tucker, 853 So.2d 104 (Miss. 2003)...n1 Allen v. ITE, 928 F.2d 137 (5 th Cir. 1991) n1 ASC Const. Co. Inc. of Mississippi v. CGU, 332 F. 3d 885 (5 th Cir. 2003)...n7 Blank v. Olsen, 662 S.W.2d 324, 326 (Tenn. 1983)..n6 Davis v. National Gypsum Co., 743 F.2d 1132 (5 th Cir. 1984).5 Hearthcock v. State Farm Mutual Ins. Co., 248 So. 2d 456 (Miss. 1971)..6 Hill v. City of Germantown, 31 S.W.3d 234 (Tenn. 2000)... n6 Hutchinson v. Tennessee Farmers Mut. Ins. Co., 652 S.W.2d 904(Tenn. Ct. App. 1983)..5-6 Grandstaff v. Hawks, 36 S.W.3d 482 (Tenn. Ct. App. 2000)...n2 Hill v. Dunaway, 487 So. 2d 807 (Miss. 1986) n2 2

Lipscomb v. Doe, 32 S.W.3d 840 (Tenn. 2000).. 5 McDaniel v. Ritter, 556 So. 2d 303 (Miss. 1989) 5, n3, n5 McIntyre v. Balentine, 833 S.W.2d 55 (Tenn. 1992) n4 Russell v. Anderson County, E2010-00189-COA-R3-CV (Tenn. Ct. App. February 11, 2011)...n5 Ramsey v. Boeing, 432 F. 2d 592 (5 th Cir. 1970)...5 Mississippi Municipal Liability Plan v. Jordan, 863 So.2d 934 (Miss. 2003)....4 Price v. Litton Systems, 784 F.2d 600 (5 th Cir. 1986)..n1 Shortie v. George, 2015-CA-00944 (Miss. App. May 23, 2017).... n1 Tucker v. Williams, 198 So.3d 299 (Miss. 2016).. 3-4 Valley Forge Ins. v. Strickland, 620 So.2d 535 (Miss. 1993). 4 B. Statutes & Regulations Tenn. Code Ann. 56-7-1206 6 C. Rules MRAP 10..4 REPLY ARGUMENT 1. The October 26, 2016 Order is reviewable. In Tucker v. Williams, 198 So. 3d 299, 306-307 (Miss. 2016), this Court held that an interlocutory order is subject to revision at any time and is only appealable pursuant to Rule 5 of the Mississippi Rules of Appellate Procedure. Once an issue is listed in the 3

statement of issues for the appellant s principal brief it is properly before the Court. Id. at 307-308. The commentary to Rule 10 of the Mississippi Rules of Appellate Procedure provides that: [a] designation of certain issues under subdivision (b)(4) does not preclude a party from stating other issues in its brief. Finally, this Court s appellate jurisdiction extends to cases and not just issues. Mississippi Municipal Liability Plan v. Jordan, 863 So.2d 934, 941 (Miss. 2003). Applying the foregoing principles, the October 26, 2017 Order, R426, is reviewable and properly before this Court. The order is interlocutory and before this Court on a Rule 5 appeal. The issue was raising in the statement of issues in the principal brief. Thus, Adlai Johnson s argument is foreclosed by controlling precedent and the plain language of the commentary to Rule 10. 2. Mississippi damages law applies In Valley Forge Ins. Co. v. Strickland, 620 So.2d 535, 538 (Miss. 1993), this Court held that the substantive law that applied to the underlying tort also applied to damages. Thus, because Mississippi rules of the road apply, then Mississippi damages law applies and authorizes Tarinika Smith to recover for the wrongful death of her quick 1 fetus. 3. Mississippi applies its own pure 2 comparative fault regime. 1 66 Federal Credit Union v. Tucker, 853 So.2d 104 (Miss. 2003). In Shortie v. George, 2015- CA-00944, paragaraph 24 (Miss. App. May 23, 2017), the Mississippi Court of appeals ruled that Mississippi law determines negligence and that ability to recover for a fatal motor vehicle accident. The relationship of the parties is also centered where the injuries occurred in Marshall County, Mississippi. Price v. Litton Systems, 784 F.2d 600 (5 th Cir. 1986); Allen v. ITE, 928 F.2d 137 (5 th Cir. 1991). 2 Thjs issue is only material to the wrongful death claims of Tarinika Smith. The minor Plaintiffs are guest passengers. Grandstaff v. Hawks, 36 S.W.3d 482, 492 (Tenn. Ct. App. 2000); See Hill v. Dunaway, 487 So.2d 807 (Miss. 1986). 4

Mississippi has previously found Tennessee s contributory fault scheme as repugnant as a matter of public policy 3. Currently, Tennessee follows a modified comparative fault scheme. 4 The McDaniel court has already instructed that Mississippi pure comparative fault should be applied under these circumstances 5. McDaniel, 316-17. 4. Tenn. Code Ann 56-7-1206 is a remedial statute In Lipscomb v. Doe, 32 S.W.3d 840, 847 (Tenn. 2000) and Hutchinson v. Tennessee Farmers Mut. Ins. Co., 652 S.W.2d 904, 906-907 (Tenn. Ct. App. 1983), the Tennessee Supreme Court and the Tennessee Court of Appeals found that the Tennessee UM service statute found at Tenn. Code Ann. 56-7-1206 was remedial 6. In a word, Tenn. Code Ann. 56-7-1206 is remedial and does not have extra-territorial effect. Id. at 906-907. Thus, Tennessee has clearly identified this statute as remedial and has no application to an action filed in this forum. Mississippi 7 follows this construction of the Tennessee UM service statute. Davis v. National Gypsum Co., 743 F.2d 1132, 1134 (5 th Cir. 1984); Ramsey v. Boeing, 432 F.2d 592 (5 th Cir. 1970). Company 5. Smith Plaintiffs can maintain a direct action against Church Mutual Insurance 3 McDaniel v. Ritter, 556 So.2d 303, 317 (Miss. 1989) 4 McIntyre v. Ballentine, 833 S.W.2d 55, 57 (Tenn. 1992) and its progeny. 5 Application of Tennessee s comparative fault scheme would lead to a jury instruction that in the event that Tarinika Smith s comparative negligence is equal to Adlai Johnson s negligence then she would be precluded from recovering any damages for the wrongful death of her quick fetus. See Russell v. Anderson County, E2010-00189-COA-R3-CV (Tenn. Ct. App. February 11, 2011). This result is clearly contrary to the fundamental public policy expressed by the McDaniel court of pure comparative negligence. Id. 6 Judicial constructions of statutes become part of the statute. Blank v. Olsen, 662 S.W.2d 324, 326 (Tenn. 1983); Hill v. City of Germantown, 31 S.W.3d 234, 239-240 (Tenn. 2000). 7 The Fifth Circuit is Erie-bound to follow the Mississippi Supreme Court s lead in following the Tennessee Supreme Court s construction of Tennessee statutes. ASC Const. Co. Inc. of Mississippi v. CGU, 332 F.3d 885, 889 (5 th Cir. 2003). 5

Tennessee courts look to the forum state to determine if direct actions are proper against uninsured motorist carriers. Hutchinson at 906-907. In Hearthcock v. State Farm Mutual Ins. Co., 248 So. 2d 456, 460-61 (Miss. 1971), the Mississippi Supreme Court that direct actions were proper against uninsured motorist carriers. Thus, Plaintiffs can maintain a direct action against Church Mutual. Johnson s presence is the lawsuit is immaterial. CONCLUSION The Appellants respectfully urges the Court to reverse the trial court and find that Mississippi substantive tort law should be applied to determine fault and damages upon remand. Moreover, the Court should find that Adlai Johnson willfully evaded service of process as a matter of law and Tarinika Smith was entitled to an extension of time to serve process upon Adlai Johnson for her individual personal injury clams. Finally the Court should find the Mississippi direct action principles apply to Plaintiff s claim against Church Mutual Insurance Company. Respectfully submitted, /s/drayton D. Berkley DRAYTON D. BERKLEY, ESQ. (MBN 10280) 119 South Main, Suite 500 Memphis, Tennessee 38103 Telephone: (901) 322-8706 Fax: (901) 881-0316 attorneyberkley@gmail.com CERTIFICATE OF SERVICE The undersigned hereby certifies a copy of the foregoing has been served upon counsel for the defendants via ECF, e-mail, and U.S. Mail, first class postage paid and properly addressed to: 6

D. Reid Wamble, Esq. The Law Office of Reid Wamble, PLLC P.O. Box 1950 Olive Branch, MS 38654 And H. Chase Pittman, Esq. 9032 Corporate Gardens Germantown, TN 38138 Attorney for Johnsons Matthew McCaw, Esq. McDonald Kuhn 5400 Poplar Avenue Ste 330 Memphis, TN 38119 Attorney for Defendant Tarinika Smith and Margaret Z. Smith, Esq. Butler Snow 1020 Highland Colony Parkway Ste 1400 Ridgeland, MS 39157 Ms.Margaret B. Fair 1 Courthouse Square #101 3d Floor Oxford, MS 38655 Honorable J. Kelly Luther Attn: Kathy Sturdivant Circuit Court Judge 102 N. Main Street Ste F Ripley, MS 38663 This the 6th day of November 2017. /s/drayton D. Berkley DRAYTON D. BERKLEY, ESQ. 7