Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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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.   

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The entire Mississippi Supreme Court heard oral arguments on Tuesday before a mostly full courtroom in the Double Quick v. Lymas case. Here is the Clarion-Ledger's article on the hearing. The audience was not disappointed as the arguments were very interesting.  

Case Background

The case is a premises liability case out of Humphrey County involving the shooting of a patron by a third-person in the parking lot of a convenience store in Belzoni. There was a large jury verdict that the trial court reduced due to the legislative cap on non-economic damages. Both sides appealed. The defendant appealed on liability and the plaintiff challenged the constitutionality of the caps.

The Court Focused on Liability Issues

The justices appeared most interested in the liability arguments. Defense counsel John Henegan argued for thirty minutes and argued that the verdict should be reversed and rendered based on lack of foreseeability and proximate cause. Plaintiff counsel Joe Tatum then argued for thirty plus minutes and did not get to the cap issue until his time had technically expired. Henegan then argued caps for close to thirty minutes on rebuttal. It looked liked the lawyers were more eager to get into the caps than the justices.

It appeared that five or more justices were skeptical that the plaintiff established that the shooting was foreseeable or that any negligence by Double Quick proximately caused the shooting. For this reason, the case could be reversed and rendered without ever reaching the cap issue.

Justices Were Skeptical of Legislative Caps Arguments

On the issue of the caps, Justice Pierce pointed out that the plaintiff did not raise on appeal the argument that the caps violate the equal protection clause. It appeared that Justice Pierce thought that this was the best argument challenging the caps. Several justices appeared skeptical of the constitutionality of the caps in their questioning of counsel.

Henegan argued that not only are the caps constitutional, but that the legislature can eliminate the right to recover “these types of damages” entirely. I thought he lost the justices with that one. The justices quickly realized that if the legislature can abolish some types of damages, then it can abolish the right to recover all damages. And it did not look like they were buying it.

Henegan was steadfast on this argument, citing the workers' comp system and the fact that the legislature abolished hedonic damages as a separate category of damages. But it's my understanding that hedonic damages are recoverable, they are just within the other non-economic damages. In addition, Justice Pierce pointed out that the workers' comp system is different, since employees do not have to prove negligence in return for the limits on recovery.

In any event, the right to sue for damages in civil court is older than this country. If the right were abolished, people would revert to taking the law into their own hands. Violence and chaos would be common. The best thing about our civil justice system is that it provides an orderly mechanism for resolving disputes. Although the system is imperfect, it beats the hell out of the alternative.

Henegan argued that the right to recover can be eliminated by the state legislature. I think he is dead wrong.

One last point on this issue. I find it difficult to believe that companies that make money from selling liability insurance advocate a system where there can be no tort liability. Liability insurance carriers would be out of business. So while insurance companies like caps that limit exposure, they do not want to eliminate exposure. It would eliminate their business.   

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In a 5–4 decision on Thursday, the Mississippi Supreme Court issued its opinion in Jones v. Fluor, holding that a one-year statute of limitations applies to the claim of intentional infliction of emotional distress. Justice  Pierce wrote the Court’s opinion and was joined by Chief Justice Waller and Justices Carlson, Randolph and Chandler.

Here is the Clarion-Ledger article on the case, which got the number of votes wrong (6–3).

The applicable statute is Miss. Code Ann. 15–1–35, which lists a one year deadline for filing actions for “assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels…”

The statute does not say that there is also a one year statute of limitations for actions “like these”, but that is what the court found.

Justice Dickinson dissented and was joined by Justices Lamar, and Kitchens. Justice Kitchens wrote a separate dissent joined by Justice Graves and Justice Dickinson, in part.

Justice Dickinson’s dissent states that intentional infliction of emotional distress “clearly is not subject to the one-year statute of limitations” because the statute “specifically lists the intentional torts to which it applies.” The dissent also observes:

It requires no analysis or particular legal insight to observe that the tort of intentional infliction of emotional distress is not included in the language chosen by the Legislature.

Justice Dickinson’s dissent is very persuasive. I’m surprised that his opinion was not for a unanimous court.

My biggest criticism of the majority’s holding is that it makes life difficult for lawyers. If the majority can read words that are not there into this statute, then it can do it in other statutes. It is not fair to lawyers or their clients that they have to figure out what language the Court believes should be in a statute, but isn’t.

I don’t have a problem with there being a one year deadline for intentional infliction of emotional distress actions. Typically, it is just a throw-in claim with the real claim at issue in a case. But if it’s going to be a one year deadline, then the statute should list the claim. It does not and Justice Dickinson is dead on.

Justices Kitchens and Graves opined that the defendant waived the statute of limitations defense.

 The Court is slowly developing an irreconcilably inconsistent body of law on the issue of waiver of affirmative defenses. In some cases the court finds a waiver based on the passing of a certain amount of time. In other cases, it finds no waiver for similar or longer amounts of time. Efforts to distinguish the different cases are un-persuasive. It appears that what the Court is really doing is basing its waiver decisions on subjective feelings about who should win the case. I’m not saying that is what the Court is actually doing. But that is how it’s starting to look—and that’s a problem.