Cook v. Taylor

• Decision Date: 22 February 2021
• Docket Number: NO. 2019-CA-01406-COA,2019-CA-01406-COA
• Citation: 324 So.3d 333
• Parties: Brenda COOK, Appellant v. Amos TAYLOR, Appellee
• Court: Mississippi Court of Appeals

324 So.3d 333

Brenda COOK, Appellant

v.Amos TAYLOR, Appellee

NO. 2019-CA-01406-COA

Court of Appeals of Mississippi.

February 22, 2021

Rehearing Denied June 22, 2021

ATTORNEYS FOR APPELLANT: THOMAS ALAN WOMBLE, Batesville, BETHANY ANN TARPLEY

ATTORNEY FOR APPELLEE: LAWRENCE JOHN TUCKER JR., Oxford

BEFORE CARLTON, P.J., LAWRENCE AND McCARTY, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Brenda Cook filed a negligence action against Amos Taylor, individually, in the Quitman County Circuit Court, seeking actual and compensatory damages for injuries she allegedly incurred when their vehicles collided. The circuit court granted summary judgment in Taylor's favor on the ground of qualified immunity, finding that Taylor was acting in the course and scope of his duties as a volunteer firefighter at the time of the accident and that he did not act with reckless disregard for the safety of any person.

¶2. Cook appeals, seeking reversal of the circuit court's judgment and remand of this case for further proceedings. Cook asserts on appeal that Taylor waived his qualified immunity defense when he did not plead it as an affirmative defense in his answer and did not raise it before the circuit court until fourteen months later when he moved for summary judgment on that basis, after having actively participated in the litigation process. We agree. For the reasons addressed below, we find that Taylor waived his qualified immunity defense. We therefore reverse the circuit court's judgment and remand this case for proceedings consistent with this opinion.

PROCEDURAL HISTORY AND STATEMENT OF FACTS

¶3. The record reflects that Taylor is a certified first responder and volunteer firefighter with the Marks volunteer fire department (Marks VFD). On September 14, 2017, at 1:48 p.m., the Quitman County Sheriff's Department received a report of an accident on Highway 3 in Vance. An emergency tone was sent to all available Lambert and Marks fire department units. Taylor was working at his maintenance job with the City of Marks when the emergency tone came across his eDispatch unit. He left work and headed to the Marks VFD station but found the fire truck had already pulled away. Taylor drove toward the scene of the crash in his personal vehicle.

¶4. On the way, Cook and Taylor were involved in an automobile accident on Highway 3. Cook and Taylor were both traveling southbound on Highway 3. Cook was attempting to make a left turn onto Riverside Road at a time when Taylor was in the northbound lane attempting to overtake and pass Cook. Their vehicles collided. The front right side of Taylor's vehicle and the front left side of Cook's vehicle were damaged in the collision.

¶5. Cook sued Taylor, individually, on March 2, 2018, in the Quitman County Circuit Court. She sought actual and compensatory damages for injuries she allegedly received as a result of the collision. She alleged causes of action for negligence and negligence per se. According to the allegations of Cook's complaint, she was attempting to make a left turn off of Highway 3, and Taylor was "following too closely on the highway at a high rate of speed when he began his attempt to overtake and pass [Cook] in the left lane [and] ... violently collided with the side of [Cook's] car as [she] attempted the left turn." She further alleged that Taylor was inattentively operating his vehicle and that he was negligent per se for violating certain rules of the road, including Mississippi Code Annotated section 63-3-1201 (Rev. 2013), which prohibits "reckless driving." Section 63-3-1201 provides that "[a]ny person who drives any vehicle in such a manner as to indicate either a wilful or a wanton disregard for the safety of persons or property is guilty of reckless driving."

¶6. Taylor filed his answer on March 14, 2018, raising eight affirmative defenses, including an affirmative defense under Mississippi Rule of Civil Procedure 12(b)(6) that Cook's complaint failed to state a claim against him upon which relief could be granted. Taylor did not indicate anywhere in his answer that he was acting in his capacity as a volunteer firefighter for Marks VFD when the accident occurred, nor did Taylor assert any defense that he was entitled to qualified immunity under the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. § 11-46-9 (Supp. 2016), or that he was entitled to any other protection available under the MTCA.

¶7. Along with filing his Answer, Taylor served Cook with interrogatories and requests for production of documents. In his interrogatories, he asked standard questions about how the accident occurred and the nature of Cook's injuries. A week later, Cook served Taylor with similar discovery, and Taylor responded. In response to Cook's interrogatory asking him to "provide a narrative description of the accident," Taylor stated that he was a volunteer firefighter and was on his way to an accident. In another interrogatory, Cook asked whether Taylor intended to "rely upon affirmative defenses in [his] defense."

In his response, Taylor referenced only the affirmative defenses set forth in his answer.

¶8. The parties' depositions took place six months later, on October 19, 2018. Neither Cook's nor Taylor's depositions were limited to particular issues. In his deposition, Taylor testified that he was a volunteer firefighter on the way to an accident when Taylor and Cook collided on Highway 3.

¶9. On October 29, 2018, Taylor issued a subpoena duces tecum to CSpire, seeking Cook's cellphone records from the afternoon of September 14, 2017 (the day of the accident).

¶10. Over a month later, on November 26, 2018, Taylor's lawyer sent an email to Cook's lawyer seeking a voluntary dismissal of Cook's lawsuit based upon Taylor's qualified immunity under the MTCA. He informed Cook's lawyer at this time that he intended to file a motion for summary judgment on the issue and furnished Cook's lawyer with the information he had gathered in support of dismissal on qualified immunity grounds.

¶11. The case proceeded. On March 1, 2019, Cook's lawyer sent a draft pretrial order to Taylor's lawyer, asking him to complete the defendant's information and reminding him that they needed to "move this case along." In response, Taylor's lawyer said that Taylor still intended to move for summary judgment on qualified immunity grounds and apologized for his delay.

¶12. A week later, Taylor filed a "Notice of Intent to Utilize Records Pursuant to Mississippi Rule of Evidence 902(11)" that set forth his intent to use fire-services contracts between the Quitman County, Mississippi Board of Supervisors and the City of Marks "at the trial of this matter." In that same time-frame, Taylor also had issued and served additional subpoenas duces tecum to the Quitman County Sheriff Department and the Mississippi Highway Patrol for call logs and dispatch recordings from the day of the accident. In mid-April, Taylor's lawyer produced to Cook's lawyer the information he received in response to his subpoenas, and he again told Cook's lawyer that Taylor intended to file a motion for summary judgment on qualified immunity grounds.

¶13. A few days later, on April 19, 2019, Taylor's lawyer returned the draft pretrial order to Cook's lawyer with the defendant's portions completed. Taylor's lawyer also advised that he would be filing a summary judgment motion based on Taylor's qualified immunity once he had the call logs from the date of the accident transcribed.

¶14. On May 16, 2019, Taylor filed his motion for summary judgment asserting that he was entitled to qualified immunity under the MTCA. Cook asserted in her response that Taylor waived the affirmative defense of qualified immunity when he failed to plead it in his answer and then extensively participated in litigation before raising it in his summary judgment motion fourteen months later. Taylor filed his rebuttal in support of his summary judgment motion on July 1, 2019.

¶15. On July 10, 2019, Taylor filed a motion to amend his answer, requesting "permission to amend his Answer to assert qualified immunity as a defense." In her response, Cook asserted that Taylor admitted that he "failed to raise the defense of qualified immunity in his [a]nswer which must be specifically pled," that Taylor did not file "any defenses to properly raise the defense of qualified immunity" in his answer, and that Taylor "should [not] be allowed to raise the defense at this late stage."

¶16. The circuit court did not rule on Taylor's motion to amend his answer.

¶17. On August 15, 2019, the circuit court entered its order granting Taylor's motion for summary judgment, finding that he was entitled to qualified immunity pursuant to section 11-46-9(1)(c) and "that based on the facts most favorable to [Cook], [Taylor] did not act ‘in reckless disregard of the safety and well being’ of Cook." Cook appealed.

STANDARD OF REVIEW

¶18. We review a trial court's ruling on the waiver of an affirmative defense for abuse of discretion. Estate of Puckett v. Clement , 238 So. 3d 1139, 1144 (¶9) (Miss. 2018). "Waiver is a matter of law where the material facts and circumstances are undisputed or clearly established." Univ. of Miss. Med. Ctr. v. Hampton , 227 So. 3d 1138, 1141 (¶10) (Miss. Ct. App. 2016) (quoting Bott v. J.F. Shea Co. , 388 F.3d 530, 534 (5th Cir. 2004) ).

DISCUSSION

¶19. Cook asserts that Taylor waived any claim that he is entitled to qualified immunity under the MTCA because he did not plead it in his answer and then actively participated in the litigation process for fourteen months before moving for summary judgment based upon that defense. Taylor, on the other hand, asserts that the "catch-all" Rule 12(b)(6) defense that he raised in his answer was broad enough to preserve an MTCA qualified immunity defense. Taylor also asserts that the fourteen-month delay between his filing his answer and moving for summary judgment based on this defense was not "unreasonable" nor "unjustified," and thus this Court should find that no...