Chamberlin v. City of Hernando, 96-CA-00600-SCT

• Decision Date: 18 June 1998
• Docket Number: No. 96-CA-00600-SCT,96-CA-00600-SCT
• Citation: 716 So.2d 596
• Parties: Barbara CHAMBERLIN, Charlotte Chamberlin Lee, Wanda Chamberlin Lyle, Teresa Chamberlin Gabbert, Mike Chamberlin and John Chamberlin, Jointly and Severally v. CITY OF HERNANDO, Hernando Ambulance Service and Barbara Wilroy, Jointly and Severally.
• Court: Mississippi Supreme Court

Page 596

716 So.2d 596

Barbara CHAMBERLIN, Charlotte Chamberlin Lee, Wanda Chamberlin Lyle, Teresa Chamberlin Gabbert, Mike Chamberlin and John Chamberlin, Jointly and Severally v. CITY OF HERNANDO, Hernando Ambulance Service and Barbara Wilroy, Jointly and Severally.

No. 96-CA-00600-SCT.

Supreme Court of Mississippi.

June 18, 1998.

Gerald W. Chatham, Sr., Hernando, for Appellants.

Wilton V. Byars, III, Daniel, Coker, Horton & Bell, P.A., Oxford, for Appellees.

En Banc.

PITTMAN, Presiding Justice, for the Court:

STATEMENT OF THE CASE

¶1 The plaintiffs, Barbara Chamberlin, Charlotte Chamberlin Lee, Wanda Chamberlin Lyle, Teresa Chamberlin, John Chamberlin and Mike Chamberlin, jointly and severally filed suit on April 25, 1995, against defendants City of Hernando, Hernando Ambulance Service and Barbara Wilroy, jointly and severally. This suit was filed as the result of alleged negligence of employees of the City of Hernando, to wit, Hernando Ambulance Service. Appellants contend that Barbara Wilroy, who was the volunteer director and an Emergency Medical Technician for the Hernando Ambulance Service, negligently contributed to the death of decedent, James Arnold Chamberlin. The complaint alleges that Ms. Wilroy violated the current regulations of the Mississippi State Department of Health and the basic training received by EMT's when she ordered CPR on the decedent to cease. The appellants further allege that the City of Hernando and Hernando Ambulance Service are vicariously liable for the negligent acts of Ms. Wilroy. Appellees admitted that Ms. Wilroy was a volunteer EMT for the City of Hernando and that she was acting in the course and scope of her duties, but denied any and all allegations of negligence on the part of appellees. There exists no separate entity known as the Hernando Ambulance Service.

¶2 This cause of action accrued on behalf of the appellants against Barbara Wilroy on April 25, 1993, the date of decedent's death. The appellants filed their complaint on April 25, 1995, two years after the cause of action accrued. The appellees timely filed their Answer and Defenses on June 29, 1995 raising as defenses: (1) failure to state a claim upon which relief can be granted; (2) plaintiffs' claims are barred, in whole or in part, by the applicable statute of limitations; and (3) defendants invoke all defenses, immunities and exemptions provided by § 11-46-1, et seq., Mississippi Code of 1972, as amended, commonly known as the Sovereign Immunity Act. Appellees then filed a Motion to Dismiss on January 30, 1996, on the basis that the Sovereign Immunity Act became effective upon passage on April 1, 1993, and the failure of plaintiffs to file their Complaint within the oneyear statute of limitations provided therein barred this action. A hearing was held on appellees' Motion to Dismiss on April 22, 1996.

¶3 Judge Baker issued his order in the case on May 10, 1996, holding that the Sovereign Immunity Act applied to this case, and the discovery rule regarding statutes of limitation does not apply; therefore, the one-year statute of limitations contained in the Sovereign Immunity Act barred this action.

¶4 The Notice of Appeal was filed on behalf of the appellants on June 5, 1996. The appeal from the lower court's granting of appellees' Motion to Dismiss raises the following issues:

I. THE COURT ERRED IN PROVIDING THAT THIS ACTION IS GOVERNED BY THE SOVEREIGN IMMUNITY ACT AND § 15-1-49 OF THE MISSISSIPPI CODE ANN. (1972 AS AMENDED) DOES NOT APPLY.

II. THE COURT ERRED IN FINDING THAT THE DISCOVERY RULE REGARDING THE STATUTE OF LIMITATIONS DOES NOT APPLY IN THIS CASE.

III. THE ACT IS UNCONSTITUTIONAL AS IT APPLIES TO CLAIMS ARISING BETWEEN APRIL 1, 1993, AND OCTOBER 1, 1993.

STATEMENT OF FACTS

¶5 On Sunday, April 25, 1993, as a result of cardiac arrest, decedent, James Arnold Chamberlin died. Barbara Wilroy, volunteer director of the ambulance service provided by the City of Hernando, had just completed an ambulance run when a call came in regarding the need for an ambulance at decedent's residence. Ms. Wilroy and ambulance driver, Harold Carmon, responded to the call. When they arrived at decedent's house, Chuck Lee, a "first responder" and decedent's former son-in-law, was performing CPR on the decedent. Ms. Wilroy prepared to perform CPR, but the decedent was blue, his pupils were dilated, he had no breath sounds, and there was no capillary refill. Ray Waddell, another volunteer with the ambulance service, arrived and began chest compressions while Chuck Lee performed ventilation. Ms. Wilroy spoke to Mrs. Chamberlin, decedent's wife, and offered to take the decedent to the hospital. Ms. Wilroy voiced the opinion that the decedent had no pulse and was not responding to the CPR. Appellants allege that Ms. Wilroy told Mrs. Chamberlin that if they were able to revive decedent and he was transported to a hospital all he would be was a vegetable. Mrs. Chamberlin told Ms. Wilroy that she had been in the kitchen cooking and heard a noise, but she thought it was her two young grandchildren. She later discovered the decedent was not breathing and called her son-in-law, Chuck Lee. Ms. Chamberlin did not know how long her husband had not been breathing. Mrs. Chamberlin told Ms. Wilroy to stop CPR. Ms. Wilroy told Lee and Waddell that Mrs. Chamberlin did not want CPR continued. No one asked any questions or voiced any disagreement with Mrs. Chamberlin's decision. Mrs. Chamberlin stated in her affidavit that she relied on the expertise of Ms. Wilroy to render appropriate treatment to her husband. At Mrs. Chamberlin's request, Ms. Wilroy called the funeral home.

ANALYSIS

I. THE COURT ERRED IN PROVIDING THAT THIS ACTION IS GOVERNED BY THE SOVEREIGN IMMUNITY ACT AND § 15-1-49 OF THE MISSISSIPPI CODE ANN. (1972 AS AMENDED) DOES NOT APPLY.

¶6 On April 1, 1993, the Mississippi Legislature enacted Miss.Code Ann. § 11-46-1, et seq., otherwise known as the Sovereign Immunity Act. James Arnold Chamberlin, decedent, died on April 25, 1993. In his order granting appellees' Motion to Dismiss, the trial judge held that the Sovereign Immunity Act applies to the case sub judice.

¶7 This appeal calls upon this Court to interpret and apply the statutory provisions relating to sovereign immunity enacted by the state Legislature in response to this Court's decision in Presley v. Mississippi State Highway Commission, 608 So.2d 1288 (Miss.1992). In the very recent decision of Gressett v. Newton Separate Municipal School District, 697 So.2d 444 (Miss.1997), Justice Prather writing for this Court held that because the incident which occurred on August 26, 1993, occurred prior to the effective date of the partial waiver of sovereign immunity by the Legislature, the Newton Separate Municipal School District enjoyed the protection of sovereign immunity.

¶8 In 1982, judicial sovereign immunity was abrogated by this Court in Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982). This Court held that the Legislature and not the Court should control the issue of one's right to bring suit against the sovereign. The Legislature thereafter enacted a comprehensive sovereign immunity statute. Miss.Code Ann. § 11-46-1 to-23 (Supp.1984). The statute maintained that sovereign immunity would continue as it existed prior to Pruett. Id. However, this Court held in Part I of Presley that § 11-46-6 was unconstitutional in light of the fact that it purported to revive law by reference, but a plurality of four justices held in Part II that the holding applied only prospectively. Presley, 608 So.2d at 1298-1301.

¶9 The Legislature responded to Presley by enacting Miss.Code Ann. § 11-46-3, effective from and after April 1, 1993, which had largely the same effect as § 11-46-6, but without the constitutionally offensive provisions regarding retroactive application as expressed in the Court's opinion in Presley. Miss.Code Ann. § 11-46-3(1) (Supp.1997) provides that:

(1) The Legislature of the State of Mississippi finds and determines as a matter of public policy and does hereby declare, provide, enact and reenact that the "state" and its "political subdivisions," as such terms are defined in Section 11-46-1, are not now, have never been and shall not be liable, and are, always have been and shall continue to be immune from suit at law or in equity on account of any wrongful or tortious act or omission or breach of implied term or condition of any warranty or contract, including but not limited to libel, slander or defamation, by the state or its political subdivisions, or any such act, omission or breach by any employee of the state or its political subdivisions, notwithstanding that any such act, omission or breach constitutes or may be considered as the exercise or failure to exercise any duty, obligation or function of a governmental, proprietary, discretionary or ministerial nature and notwithstanding that such act, omission or breach may or may not arise out of any activity, transaction or service for which any fee, charge, cost or other consideration was received or expected to be received in exchange therefor.

¶10 Section 11-46-3 details the intent of the Legislature that the State and its political subdivisions be immune from liability, and this statute does not contain the language in Miss.Code Ann. § 11-46-6 which served to revive law by reference or pre-Pruett law. Along with this newly-granted sovereign immunity created in § 11-46-3, the Legislature provided for a limited waiver of sovereign immunity in Miss.Code Ann. § 11-46-5 (Supp.1997). Section 11-46-5 furnishes a waiver of sovereign immunity as to the State from and after July 1, 1993, and for political subdivisions of the State from and after October 1, 1993. Section 11-46-15 of Miss.Code Ann. provides that the waiver of sovereign immunity is limited to $50,000 until July 1, 1997, at which time the limit increases to $250,000. For claims arising after July 1, 2001, the...