The Mississippi Supreme Court issued a significant opinion today in Stuart v. UMC. The case was an appeal from a summary judgment in favor of UMC for failure to comply with the Mississippi Tort Claims Act pre-suit notice requirement. The plaintiff did provide notice before filing suit and it appears that UMC argued that the plaintiff filed suit too soon after giving notice. The Court of Appeals had affirmed the trial court. The plaintiff argued that UMC waived the notice defense by actively participating in the litigation of the case for 2 1/2 years before filing a motion for summary judgment on the issue. A unanimous Court agreed in an opinion written by Justice Graves. Justice Randolph wrote a concurring opinion.

The opinion states:

At no point throughout the trial and appellate processes has UMMC provided an explanation for why it waited for two-and-a-half years from the filing of the complaint to actually pursue a defense that was available to it from the moment Stuart filed the complaint. Waiting for that length of time and doing nothing to prevent the case from proceeding is unreasonable and inexcusable. Furthermore, UMMC participated in discovery matters during that time. We find that UMMC’s participation in this lawsuit and its failure to raise Stuart’s noncompliance with the ninety-day-notice requirement until two-and-a-half years later constitute waiver of that defense.

The Court also rejected UMC’s argument that the notice requirements are jurisdictional and overruled a line of cases that held otherwise. The Court reasoned that the notice requirements are substantive requirements like the statute of limitations and not a jurisdictional requirement. As such, it can be waived and was in this case. The Plaintiff’s lawyers were Will Raiford and John Cocke from Merkel and Cocke in Clarksdale, who are now heros to plaintiff lawyers around the state.

This is yet another in a growing line of cases in which the Court holds that a defendant’s delay in pursuing an affirmative defense constitutes a waiver of the defense. The Court has recognized a waiver in asserting motions to compel arbitration and other affirmative matters. The bottom line appears to be that a defendant who delays must explain a reason for a delay, such as that aspects of the defense were being developed in discovery.Of course, there is not much of an explanation for not filing a motion based on alleged defects in the notice provided under the MCTA.