2007 Regular Session
To: Judiciary, Division A
By: Senator(s) Nunnelee
AN ACT TO CODIFY SECTION 11-7-165, MISSISSIPPI CODE OF 1972, TO AUTHORIZE RECOVERY OF TREBLE DAMAGES IN A CIVIL ACTION AGAINST A PERSON WHO STEALS OR CONVERTS TO HIS OWN USE THE PROPERTY OF AN INDIVIDUAL WHO IS SUSCEPTIBLE TO FINANCIAL EXPLOITATION BY REASON OF AGE, INFIRMITY OR LACK OF SOPHISTICATION, OR AGAINST A PERSON WHO OBTAINS TITLE TO, CONTROL OVER, OR CONVERTS TO HIS OWN USE ANY PROPERTY OF ANOTHER BY BREACHING HIS FIDUCIARY DUTY TO THE OTHER WITH THE INTENT TO PERMANENTLY DEPRIVE THE OTHER OF THE OWNERSHIP, BENEFIT OR POSSESSION THEREOF; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. The following shall be codified as Section 11-7-165, Mississippi Code of 1972:
11-7-165. (1) In addition to any other damages, in any civil action to recover real or personal property or damages in lieu thereof, or both, damages shall be recoverable up to three (3) times the amount of the fair market value of the property obtained or converted, where it is proven:
(a) That a person through false pretenses, fraud, extortion, intimidation, theft, embezzlement, exploitation or other intentional wrongful act, obtained possession of, control over, title to, or converted to his own use the money, assets or real or personal property of a vulnerable adult or other individual who was gullible by reason of age, infirmity or lack of sophistication; or
(b) That a person obtained possession of, control over, title to, or converted to his own use any property of another with whom the person held a position of trust or was in a confidential relationship by breaching his fiduciary duty with the intent to permanently deprive the other of the ownership, benefit or possession thereof.
(2) As used in this section, "position of trust" means a person who:
(a) Has assumed a duty to provide care to the owner of the property;
(b) Is in a fiduciary relationship with the owner of the property, including a de facto guardian or de facto conservator;
(c) Is a joint tenant or tenant in common with the owner; or
(d) Is a financial planning or investment professional consulted by the owner.
(3) For purposes of this section, "exploitation" and "vulnerable adult" shall have the meanings described in Section 43-47-5.
(4) Civil remedies provided under this section shall be supplemental and cumulative, and not exclusive of other remedies afforded under any other law. Damages awarded under this section are remedial and not punitive, and do not limit and are not limited by any criminal action or any other provision of law. Any civil damages paid by the civil defendant shall reduce the amount such defendant, upon conviction, may be ordered to pay in restitution, and any restitution paid under a criminal penalty shall reduce any civil damages owed.
(5) The cause of action, the right to bring a cause of action, or the right to seek treble damages pursuant to this section shall not be limited or affected by the death of the owner.
SECTION 2. This act shall take effect and be in force from and after July 1, 2007.