Johnson v. Med Exp. Ambulance Service, Inc.

• Decision Date: 09 July 2008
• Docket Number: Civil Action No. 5:07cv191-DCB-JMR.
• Citation: 565 F.Supp.2d 699
• Parties: Dennis JOHNSON and Casey Johnson, the wrongful death heirs and beneficiaries of Dinese Johnson, deceased, minors, by and through their uncle and next friend, Jimmy JOHNSON, Plaintiffs v. MED EXPRESS AMBULANCE SERVICE, INC., American Medical Response, Inc., and Unknown Corporations A and B, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

565 F.Supp.2d 699

Dennis JOHNSON and Casey Johnson, the wrongful death heirs and beneficiaries of Dinese Johnson, deceased, minors, by and through their uncle and next friend, Jimmy JOHNSON, Plaintiffs v. MED EXPRESS AMBULANCE SERVICE, INC., American Medical Response, Inc., and Unknown Corporations A and B, Defendants.

Civil Action No. 5:07cv191-DCB-JMR.

United States District Court, S.D. Mississippi, Western Division.

July 9, 2008.

Carroll Edward Rhodes, Law Offices of Carroll Rhodes, Hazlehurst, MS, for Plaintiffs.

John B. Clark, Thomas R. Julian, Daniel Coker Horton & Bell, Jackson, MS, for Defendants.

OPINION & ORDER

DAVID BRAMLETTE, District Judge.

This cause comes before the Court on defendant American Medical Response, Inc.'s Motion for Summary Judgment [docket entry no. 5]. Having carefully considered said Motion, memoranda in support and opposition thereof, applicable statutory and case law, and being otherwise fully advised in the premises, the Court finds and orders as follows:

I. BACKGROUND & PROCEDURAL HISTORY

On February 5, 2001, Dinese Johnson became ill at her home in Adams County, Mississippi. Following several calls to 911 placed by her neighbors, an ambulance arrived at Ms. Johnson's residence and transported her to Natchez Regional Medical Center. Ms. Johnson was pronounced dead at the hospital on the same day.¹ Ms. Johnson was unmarried and survived by two minor children, Dennis Johnson and Casey Johnson, and a brother, Jimmy Johnson.²

On April 10, 2007, acting through their next friend and uncle Jimmy Johnson, plaintiffs Dennis Johnson and Casey Johnson filed suit against defendants Med Express Ambulance Service, Inc. ("Med Express")³ and American Medical Response, Inc. ("AMR") in the Circuit Court of Adams County, Mississippi. The plaintiffs allege in their Complaint that the defendants proximately caused Ms. Johnson's death by negligently failing to respond to the 911 calls in a timely manner, (Compl. 4), and seek to recover damages for Ms. Johnson's physical pain and emotional distress, medical bills, and funeral bills, as well as their own emotional distress, loss of the society and companionship of their mother, the net cash value of her life expectancy, and punitive damages. (Compl. 4-5.)

On October 2, 2007, pursuant to 28 U.S.C. §§ 1441 and 1446, AMR filed its Notice of Removal of the case to this Court from the Circuit Court of Adams County, Mississippi, based upon this Court's diversity of citizenship jurisdiction under 28 U.S.C: § 1332.⁴ AMR filed its Motion for Summary Judgment [docket entry no. 5] on January 3, 2008. The plaintiffs proffered their Response [docket entry no. 9] to AMR's Motion on January 22, 2008, which AMR countered with its Rebuttal [docket entry no. 13] on January 29, 2008. AMR's Motion for Summary Judgment is now before the Court.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is apposite "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c).⁵ The party moving for summary judgment bears the initial responsibility of apprising the district court of the basis for its motion and the parts of the record which indicate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

"Once the moving party presents the district court with a properly supported summary judgment motion, the burden shifts to the nonmoving party to show that summary judgment is inappropriate." Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). But the nonmovant must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Moreover, "[t]he mere existence of a scintilla of evidence" is insufficient to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. The nonmovant must instead come forward with "specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e). Summary judgment is properly rendered when the nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552.

III. APPLICABLE LAW

As is the situation in this federal court sitting in diversity must apply state substantive law. Times-Picayune Pub. Corp. v. Zurich Am. Ins. Co., 421 F.3d 328, 334 (5th Cir.2005) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). The parties apparently agree that the substantive law of Mississippi controls the issues before the Court.

IV. ANALYSIS

A. The Parties' Arguments

AMR asserts that the plaintiffs' action for wrongful death filed more than six years after Ms. Johnson died is time-barred by either Mississippi's two-year medical malpractice statute of limitations or three-year catch-all statute of limitations. Furthermore, AMR contends that the minor savings statute, MISS.CODE ANN. § 15-1-59 (Rev. 2003), does not toll the applicable statute of limitations for the plaintiffs inasmuch as there was at least one person in esse—Jimmy Johnson and/or James King—who could have brought the subject wrongful death action on their behalf within the statutory time period.

The plaintiffs posit that Mississippi's medical malpractice statute of limitations is inapplicable inasmuch as this case is not one for medical malpractice and ambulance companies are not covered by the statute. The plaintiffs next argue that while the three-year general statute of limitations is applicable to this survival and wrongful death action, the minor savings statute has tolled the running of the limitation period. Lastly, the plaintiffs declare that there was never any person in esse who could have brought the wrongful death action on behalf of Casey Johnson and no person in esse prior to the running of the entire three-year statute of limitations who could have brought said action on behalf of Dennis Johnson.

B. Application of Law

It is helpful to note at the outset that the suit brought by the plaintiffs is a pure wrongful death action. "Mississippi's survival statute [MISS.CODE ANN. § 91-7-233] allows an estate administrator to commence and prosecute any personal action which the decedent might have commenced and prosecuted." In re Estate of England, 846 So.2d 1060, 1067 (Miss.Ct. App.2003). Inasmuch as no estate has yet been opened for Dinese Johnson, neither of the plaintiffs is the administrator of her estate and consequently cannot maintain a survival action. However, the language of Mississippi's wrongful death statute has been interpreted by the Supreme Court of Mississippi to "indicate[ ] that any damages for personal injuries suffered by the decedent during her lifetime are recoverable in the wrongful death suit. This is true even though an action for the personal injuries accrued to the decedent during her lifetime, and could have been prosecuted by the decedent had she lived." Id. at 1068. Therefore, while the plaintiffs in this case are not qualified to bring a survival action, they may recover survival-type damages in this wrongful death action for the personal injuries (if any) Dinese Johnson sustained at the hands of the defendants as long as they (the plaintiffs) prove that the "same wrongful conduct cause[d] both [her] personal injury and death. . . ." Id.

Mississippi's wrongful death statute provides as follows, in pertinent portion:

Whenever the death of any person or of any unborn quick child shall be caused by any real, wrongful or negligent act or omission, or by such unsafe machinery, way or appliances 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, or whenever the death of any person or of any unborn quick child shall be caused by the breach of any warranty, express or implied, of the purity or fitness of any foods, drugs, medicines, beverages, tobacco or any and all other articles or commodities intended for human consumption, as would, had the death not ensued, have entitled the person injured or made ill 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, and the fact that death was instantaneous shall in no case affect the right of recovery. The action for such damages may be brought in the name of the personal representative of the deceased person or unborn quick child for the benefit of all persons entitled under the law to recover, or by widow for the death of her husband, or by the husband for the death of the wife, or by the parent for the death of a child or unborn quick child, or in the name of a child, or in the name of a child for the death of a parent, or by a brother for the death of a sister, or by a sister for the death of a brother, or by a sister for the death of a sister, or a brother for the death of a brother, or all parties interested may join in the suit, and there shall be but one (1) suit for the same death which shall ensue for the benefit of all parties concerned, but the determination of...