Miss. S. Ct. Clarifies Notice Statute in Tort Claims Act
In an opinion from Thursday in Delta Regional Medical Center v. Green, the Mississippi Supreme Court ruled on conflicting language in Miss. Code Ann. 11–46–11 regarding when a plaintiff can file suit. Justice Pierce wrote the Court's unanimous decision affirming the decision of the Washington County Circuit Court by Judge Richard Smith. Here is the opinion.
Miss. Code Ann. 11–46–11(1) states that a party must file a notice of claim with the chief executive officer of a governmental entity 90 days before filing a lawsuit.
But Miss. Code Ann. 11–46–11(3) states that the statute of limitations is tolled for 95 or 120 days and that the claimant has 90 days to file suit after service of the notice of claim on the governmental entity.
In resolving this confliction language the Court stated:
…we are left with no choice but to find the phrase 'during which time no action may be maintained by the claimant unless the claimant has received a notice of denial of claim' found in Section 11–46–11(3) unenforceable.
The result of the decision is that a plaintiff can file suit 90 days after providing notice. In this case, the plaintiff gave notice on the ninety-first day, so the trial court correctly denied the defendant's motion to dismiss.
George 'Boo' Hollowell of Greenville represents the plaintiff. Carl Hagwood of Greenville represents the defendant.
Glad you blogged on this. The MSSC is getting positively frisky about striking statutes, though not always with close attention to the legal precedents on the subject.
Arguably, coming later in the statute, subsection (3) should have controlled, under the canons of construction.
Another approach would've been to harmonize the two sections by ruling that the 90 day period in (3) was the same as in (1), and that, coming later, (3) controlled in any residual conflict. That of course would have had the happy effect, from the plaintiff's POV, of making the effective SOL a year and a half. Not a great result, but a court less interested in erasing statutory language might have considered it.
(Not sure, btw, that your boldfaced "before" and "after" correctly emphasize the conflict here. The problem is that the tolling is effected by the filing of the notice of claim.)