Arceo v. Tolliver II: This Will Be a Bar Exam Question
For the second time the Supreme Court ruled on notice issues in Arceo v. Tolliver. The case dealt with the interplay in the pre-suit notice requirement in a medical malpractice case and the savings statue: Miss. Code Ann. § 15-1-69. A divided Court ruled that the savings statute applies in cases dismissed for failure to comply with pre-suit notice requirements. This gives a plaintiff one year after the dismissal to re-file the case. That was the good news for the plaintiff in this case. The bad news was that the plaintiff re-filed more than a year after the first dismissal, resulting in dismissal of the second case with prejudice. Justice Waller wrote the Court's opinion. Justice Randolph wrote a concurrence and Justice Graves wrote a dissent joined by Justice Kitchens.
Philip, I think you have misstated the procedural posture of the case and in so doing glossed over an important point. The Supreme Court did hold that the one-year savings statute, Miss. Code Ann. § 15-1-69, applies to dismissals for failure to provide notice under Miss. Code Ann. § 15-1-36(15). The plaintiff took advantage of this statute when she refiled her action after the expiration of the two-year limitation period but within a year of the dismissal of the original action.
But, the Court's decision also holds that § 15-1-69 applies only to the dismissal of the original action. So, when the second suit was dismissed for failure to give notice containing the statutorily required content, the plaintiff had no savings provision and - the statute of limitations having expired - was forever out of court.
I predict that not only will this be a bar exam question, it will also be a legal malpractice claim.
I was pretty surprised to read that the Supreme Court had dismissed the case once for failure to give proper notice and the plaintiff's attorney couldn't even manage to give proper notice the second time around either.
Maybe it's just me, but if the Supreme Court dismisses my case once for lack of proper notice, I'm going to crack open the old statute book and see exactly what kind of notice is required the second time around.
If a wrongful death case has been voluntarily dismissed without prejudice by Plaintiff, does the Plaintiff have 1 year saving provision of MS Code 15-1-69. Does Plaintiff have a year to refile even if the original statutes of limitations have expired?