"Whatever that means"

Sass and counter-sass on the MSSC handdown today. We're presented with the always-interesting sight of the Court's affirming summary judgment for a corporate civil defendant -- interesting when Justice Graves writes the opinion, anyway. As you'd expect, the facts are pretty tight: plantiff brings wrongful-death suit, plaintiff signs release, plaintiff tries to sue third party released. Not much there.

Except that Waller, C.J., with Dickinson, Randolph, and Lamar, JJ., concurs in part and in result. Says Waller. Graves, however, thinks not:

¶12. We note that the separate opinion is labeled as concurring in part and in result with this majority opinion. However, the separate opinion fails to explicitly disagree with any part of this opinion. It merely adopts the findings and holding of this majority. Therefore, the separate opinion is, in fact, a specially concurring opinion.

Question: if 5 justices vote that a separate opinion is a specially concurring opinion and not a concurrence in part and in result, is that dispositive, whatever the author of the opinion may've thought? I am going to teach a whole hour of CLE one day on just that issue -- don't all sign up at once.

The Court's op points out in several places where it's saying what the separate opinion says. And tweaks the Chief. Waller wrote:

And if Thomas was not an employee of Crawford – but an independent contractor, as Crawford argues – then Crawford still could have been released by the settlement contract if Crawford was in “privity of interest” with Thomas, whatever that means.

(My emphasis.) I'm glad that I'm not the only one who finds these rote expressions confusing. Graves for the Court quotes the release of

Hosie Thomas, H.T. Trucking Company, and Progressive Gulf Insurance Company and all agents, servants, employees, representatives, attorneys, adjusters, investigators, officers, directors and successors and all persons, firms, corporations, and other entities in privity of interest therewith

and drops a footnote at that point to say

This is the language quoted in paragraph 16 of the separate opinion, although it adds, “whatever that means.”

Anyway, if you can figure out why a separate opinion was necessary, feel free to tell me -- the separate opinion doesn't say directly, and I confess to sympathy with Graves as to what the point was.

... In other news, back in June, the MSSC found that Miss. Code Ann. 15-1-36(5) and 15-1-36(6) "directly conflict with one another," and decided for (5) on policy grounds. TBA has on good authority that a motion for rehearing addressed whether, in that case, canons of construction required the Court to go with the latter-occurring provision, (6), since that's what the canon says to do with provisions that directly conflict. Today, problem solved! The MSSC simply omitted the first sentence of para. 14 (para. 13 in the original) that had mentioned the "direct conflict." No more conflict!