Burgess v. Lucky

• Decision Date: 23 May 1996
• Docket Number: No. 92-IA-00262-SCT,92-IA-00262-SCT
• Citation: 674 So.2d 506
• Parties: Charles Dewayne BURGESS, M.D. and Kurt Frederic Bruckmeier, M.D. v. Wisey S. LUCKY.
• Court: Mississippi Supreme Court

Page 506

674 So.2d 506

Charles Dewayne BURGESS, M.D. and Kurt Frederic Bruckmeier, M.D. v. Wisey S. LUCKY.

No. 92-IA-00262-SCT.

Supreme Court of Mississippi.

May 23, 1996.

Michael T. Jaques, Bryant Clark Dukes Blakeslee Ramsay & Hammond, Hattiesburg, MS; R. Mark Hodges, Wise Carter Child & Caraway, Jackson, MS, for appellants.

Victor Welsh, III, Pittman Germany Roberts & Welsh, Jackson, MS; Crymes G. Pittman, Pittman Germany Firm, Jackson, MS, for appellee.

En Banc.

ROBERTS, Justice, for the Court:

The question before us today is where does a cause of action in a wrongful death case occur or accrue for venue purposes. This case comes to us from an order dated May 27, 1992, granting certification for interlocutory appeal to Drs. Charles Dewayne Burgess and Kurt Frederic Bruckmeier pursuant to Rule 5 of the Mississippi Supreme Court Rules. ¹ Burgess and Bruckmeier are appealing the Simpson County Circuit Court's denial of their motion for change of venue. Appellants present the following issue for review:

In an action brought pursuant to Mississippi's Wrongful Death Statute, Miss.Code Ann. § 11-7-13, for damages allegedly resulting from negligence arising out of medical care and/or treatment rendered to decedent by defendants, is venue proper in the county where defendants reside and the alleged negligence occurred or in the county where decedent died.

FACTS AND PROCEDURAL HISTORY

On June 28, 1989, Edward Lucky, the decedent, was admitted to Forrest General Hospital where he came under the care and supervision of the appellants, Dr. Charles Dewayne Burgess, and Dr. Kurt Frederick Bruckmeier. Both Drs. Burgess and Bruckmeier were residents of Forrest County, Mississippi. After being admitted to the hospital the decedent received a series of Ativan injections and thereafter lapsed into a coma. The decedent was still in a coma when he was discharged from Forrest General Hospital on August 21, 1989. Without ever regaining consciousness, Edward Lucky died in Simpson County, Mississippi, on August 28, 1989.

On June 18, 1991, Wisey S. Lucky (Lucky), the decedent's widow, filed a complaint in the Circuit Court of Simpson County against the appellants. An amended complaint was filed on February 13, 1992. Forrest General Hospital was also originally made a defendant to the suit, but was later dismissed. Lucky's complaint alleged that she was entitled to recover damages pursuant to Miss.Code Ann. § 11-7-13 on behalf of Edward Lucky's wrongful death beneficiaries. The complaint alleged that the decedent died as "a direct and proximate result of the negligence, gross negligence, and deviations from the standard of care" by Drs. Burgess and Bruckmeier.

A motion for change of venue to Forrest County was filed by both Drs. Burgess and Bruckmeier. Appellants argued a lack of venue in the Circuit Court of Simpson County. The lower court denied the motions, holding that pursuant to Miss.Code Ann. § 11-11-3, the wrongful death action accrued in Simpson County since that was the place of decedent's death. Subsequently the lower court, pursuant to Rule 5 of the Mississippi Supreme Court Rules, denied certification "that a substantial basis exists for a difference of opinion on a question of law...."

Appellants' petition for interlocutory appeal was granted by this Court on June 3, 1992.

DISCUSSION

The appellants, Drs. Burgess and Bruckmeier, argue that a cause of action for wrongful death, in a medical negligence context, occurs and accrues for venue purposes in the county where the negligence took place. Lucky, on the other hand, maintains that wrongful death is a cause of action separate and distinct from medical negligence and that it accrues only at the time of death and therefore, under Mississippi's general venue statute, the county of death is a proper venue.

Lucky filed suit against Drs. Burgess and Bruckmeier pursuant to Miss.Code Ann. § 11-7-13, Mississippi's wrongful death statute, which reads in part:

Whenever the death of any person shall be caused by any real, wrongful or negligent act or omission ... as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof ... and such deceased person shall have left a widow or children or both, or husband or father or mother, or sister, or brother, the person or corporation, or both that would have been liable if death had not ensued, and the representatives of such person shall be liable for damages, notwithstanding the death....

Mississippi's wrongful death statute does not contain a specific provision regarding venue; therefore, Miss.Code Ann. § 11-11-3 (Supp.1995), the state's general venue statute, must be relied upon in wrongful death cases. Miss.Code Ann. § 11-11-3 provides in pertinent part:

Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found or in the county where the cause of action may occur or accrue....

(emphasis added).

In order to determine permissible venues in a wrongful death cause of action, it must first be determined where the cause of action occurred or accrued. There are three possible alternatives to this question in a wrongful death action. The cause of action occurs and/or accrues: one, in both the county where the death occurred and the county where the alleged negligence took place, if they are different; two, only in the county where the negligence that led to the death occurred; or three, only in the county where the decedent died. There is no consistent treatment of this issue among other jurisdictions in which a general venue statute is used in wrongful death actions.

There are relevant Mississippi cases concerning venue, wrongful death actions and when a cause of action occurs and accrues. The first alternative of venue being proper in both the county where the death took place, as well as the county where the negligence occurred, is the alternative most consistent with this Court's prior holdings.

In Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 706 (Miss.1990), a statute of limitations case, the Court, quoting Rankin v. Mark, 238 Miss. 858, 120 So.2d 435 (1960), stated that "[a] cause of action accrues only when it comes into existence as an enforceable claim; that is, when the right to sue becomes vested." The Court in Gentry v. Wallace, 606 So.2d 1117 (Miss.1992), was faced with the question of when the statute of limitations begins to run in a wrongful death action stemming from medical negligence. The Gentry Court held that in a wrongful death case "the cause of action does not accrue until the death of the negligently injured person." 606 So.2d at 1119. The Court went on to state:

Wrongful death is a separate and distinct cause of action, which can be brought only by the survivors of the deceased. Miss.Code Ann. § 11-7-13 (1972 and Supp.1991). Without and until the death of Mary Gentry, there was no cause of action under the wrongful death statute to trigger the two year statute of limitations....

As it stands, the ruling of the trial court erroneously assumes that wrongful death and medical negligence causes of action are synonymous. However, wrongful death has been recognized as a tort separate Gentry, 606 So.2d at 1119-20. (citations omitted).

and distinct from other personal injury actions.

Although the above-cited cases do not contain venue issues, they seem to indicate that a wrongful death action does not accrue until the death of the negligently injured person. This being the case, Simpson County, the county where the decedent died, would be a county of appropriate venue. However, there is nothing to suggest that venue may be proper in but one county.

The Mississippi case most relevant to the issue at bar is Flight Line, Inc. v. Tanksley, 608 So.2d 1149 (Miss.1992). In that case, this Court held that a cause of action does not necessarily "occur" and "accrue" at the same time or place. In Flight Line, Tanksley filed a complaint in Warren County against Flight Line, Inc., a domestic corporation with its principal place of business in Rankin County, alleging "personal injuries said to have been proximately caused by the negligent arrangement and stowage [at the Vicksburg-Warren County Airport] of the cargo of heavy equipment prior to the flight to Chicago and thereafter by the failure to supervise the unloading of same in Chicago." Id. at 1154. Tanksley alleged that his back was injured in Chicago while he was helping to unload a heavy motor from the plane. The plane shifted causing the tail to hit the ground with the nose at a forty-five degree angle. When this happened, Tanksley, who was in the rear of the plane, "was on the receiving end of the heavy motor." Id. at 1154.

Flight Line complained that venue was improper in Warren County, arguing that the cause of action occurred and accrued in Chicago, the place the injury occurred, and moved for a transfer to Rankin County, its principal place of business. Tanksley argued that Warren County was a permissible venue because the cause of action occurred at least partially in that county. This view was accepted by the Circuit Court and affirmed by this Court.

The Flight Line Court held that

"occur" and "accrue" are not synonymous, legally or otherwise, as the disjunctive connector forthrightly suggests. We read accrual in its formalistic sense. A cause of action accrues when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested. Forman v. Mississippi Publishers Corp., 195 Miss. 90, 104, 14 So.2d 344, 346 (1943). This may well mean the moment injury is inflicted, that point in space and time when the last legally significant fact is found. "Occur" is a less formalistic term. It is event oriented to its core. It connotes conduct and phenomena and imports no preference among all of those necessary that a plaintiff may sue. It is...