Kinsey v. Pangborn Corp.

• Citation: 78 So.3d 301
• Decision Date: 09 February 2012
• Docket Number: No. 2010–CA–00925–SCT.,2010–CA–00925–SCT.
• Parties: Diana KINSEY, On Behalf of the Wrongful Death Beneficiaries of Ted Watkins, Deceased v. PANGBORN CORPORATION; Ash Grove Cement Company; Precision Packaging, Inc.; Clark Sand Company, Inc.; Clemco Industries Corporation; Hanson Aggregates, Inc.; Humble Sand & Gravel, Inc.; Parmelee Industries, Inc.; Southern Silica of Louisiana, Inc.; Mine Safety Appliances Company (MSA); Empire Abrasive Equipment Corporation; Pearl Sands, Inc.; Pearl Specialty Sands, Inc.; Specialty Sand Company; Bob Schmidt, Inc.; Schmidt Manufacturing, Inc.; Lone Star Industries, Inc.; and American Optical Corporation.
• Court: United States State Supreme Court of Mississippi

78 So.3d 301

Diana KINSEY, On Behalf of the Wrongful Death Beneficiaries of Ted Watkins, Deceased

v.PANGBORN CORPORATION; Ash Grove Cement Company; Precision Packaging, Inc.; Clark Sand Company, Inc.; Clemco Industries Corporation; Hanson Aggregates, Inc.; Humble Sand & Gravel, Inc.; Parmelee Industries, Inc.; Southern Silica of Louisiana, Inc.; Mine Safety Appliances Company (MSA); Empire Abrasive Equipment Corporation; Pearl Sands, Inc.; Pearl Specialty Sands, Inc.; Specialty Sand Company; Bob Schmidt, Inc.; Schmidt Manufacturing, Inc.; Lone Star Industries, Inc.; and American Optical Corporation.

No. 2010–CA–00925–SCT.

Supreme Court of Mississippi.

Nov. 3, 2011.Rehearing Denied Feb. 9, 2012.

John Timothy Givens, Jackson, Timothy W. Porter, Robert Allen Smith, Jr., Ridgeland, Patrick C. Malouf, attorneys for appellant.

Jennifer Jones Skipper, Fred Krutz, III, Edwin S. Gault, Jr., Matthew Robert Dowd, Charles R. Wilbanks, Jr., Katharine McKee Surkin, Randi Peresich Mueller, George Martin Street, Jr., Walter T. Johnson, Joseph George Baladi, Robert B. Ireland, III, Wade G. Manor, Clyde Lavel Nichols, III, Jackson, W. Wright Hill, Jr., Ronald G. Peresich, W. Mark Edwards, Biloxi, Jeffrey Pierce Fultz, Hal Loring Roach, Jr., Houston, Kimberly Paige Mangum, David A. Barfield, Madison, James Scott Rogers, attorneys for appellees.

Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.

RANDOLPH, Justice, for the Court:

¶ 1. The “Last Will and Testament” of Ted Watkins, dated December 6, 2000, named his ex-stepdaughter, Diana Kinsey, to serve as the executrix of his estate and “will[ed], devis[ed], ... and bequeath[ed] all of [his] property” to her.¹ Following Watkins's death in July 2003, Kinsey was formally appointed executrix of Watkins's estate in October 2003. In May 2004, Watkins's estate was closed and Kinsey was discharged as executrix. In April 2007, Kinsey filed a wrongful-death action against various silica-related entities in the Circuit Court of Harrison County, Mississippi, First Judicial District (“circuit court”). Upon the defendants' motions, the circuit court ruled that this action was barred by applicable statutes of limitations or, alternatively, that Kinsey lacked standing to file the wrongful-death action. The circuit court dismissed all defendants with prejudice.

FACTS

¶ 2. On October 4, 2002, Watkins was diagnosed with silicosis. On December 26, 2002, a mass-tort, personal-injury suit against various silica-related entities, styled Rudolph Spencer, et al. v. Pulmosan Safety Equipment, et al., was filed in the Circuit Court of Humphreys County, Mississippi. The plaintiffs in that suit asserted claims of negligence, gross negligence, strict products liability, breach of warranties, and conspiracy against the defendants; alleged “silica-related injuries[;]” and sought recovery for “past, present, and future losses, not only actual, economic losses such as lost wages and/or wage-earning capacity and expenses of medical care, but also compensatory losses, such as loss of health, physical pain, emotional upset, mental anguish, disfigurement, disability, and loss of enjoyment of life....” Among the twenty-five listed plaintiffs was “Ted Walkins [sic], ... an adult resident citizen of Mississippi.” (Emphasis added.)

¶ 3. Watkins died on July 28, 2003.² On October 29, 2003, an “Amended Complaint” was filed in Spencer in which “Ted Walkins [sic], ... an adult resident of Mississippi” remained among the listed plaintiffs. (Emphasis added.) No suggestion of death was made ³ and no wrongful-death claims were asserted. Thereafter, Spencer was removed to the United States District Court for the Southern District of Texas, Corpus Christi Division, a silica multi-district litigation court (“federal court”).

¶ 4. On October 30, 2003, the Chancery Court of Forrest County, Mississippi (“chancery court”), entered an “Order Admitting Will to Probate and for Issuance of Letters Testamentary.” The Order appointed Kinsey as the executrix of Watkins's estate, pursuant to Watkins's “Last Will and Testament,” to perform the duties and obligations required by that position. Kinsey, as the executrix of Watkins's estate, never moved to be substituted as a real party in interest in Spencer.⁴ On May 17, 2004, a “Judgment Approving First and Final Account, Closing Estate, Discharging Executrix and For Other Relief” was entered by the chancery court. (Emphasis added.) The Judgment ordered that Kinsey, as “the sole devisee and legatee” of the estate, was “entitled to receive all property of whatever nature, whether presently in possession or to later accrue....” This included “any asbestos-related or other proceeds to be paid, currently or in the future, to or on behalf of” Watkins, which were to be “free of any claim of creditors due to said proceeds' exempt status....” ⁵

¶ 5. Subsequently, the federal court entered an Order remanding Spencer to the Circuit Court of Humphreys County due to lack of subject-matter jurisdiction. On January 30, 2006, the Circuit Court of Humphreys County entered an “ Agreed Order of Dismissal Without Prejudice” in Spencer, which included the following defendants: Clemco Industries Corporation; Clark Sand Company, Inc.; Hanson Aggregates, Inc.; Humble Sand & Gravel, Inc.; Pangborn Corporation; Parmelee Industries, Inc.; Precision Packaging, Inc.; and Southern Silica of Louisiana, Inc. (collectively, “Forman Perry Defendants”). (Emphasis added.) On April 27, 2006, the Circuit Court of Humphreys County entered an “ Agreed Order of Dismissal Without Prejudice” in Spencer as to all claims against “each and every” remaining defendant, pursuant to Canadian National v. Smith, 926 So.2d 839 (Miss.2006).⁶ (Emphasis added.)

¶ 6. On April 27, 2007, Kinsey first filed a wrongful-death action in the circuit court. The Complaint was styled Diana Kinsey, on behalf of the Wrongful Death Beneficiaries of Ted Watkins, Deceased v. Pangborn Corporation, et al.⁷ The Complaint alleged “COMES NOW, [Kinsey], on behalf of the wrongful death beneficiaries of Ted Watkins, deceased....” ⁸ The Complaint alleged that the April 27, 2006, Order of the Circuit Court of Humphreys County was entered pursuant to Smith, and Kinsey argued that she was thereby granted “one (1) year ... to re-file [Watkins's] cause of action in a proper venue according to new law in Mississippi[,]” and “[t]his case is being filed within th[at] one (1) year time frame....”

¶ 7. Between August 2007 and November 2007, various defendants filed their Answers and Defenses. These pleadings contended, inter alia, that the claims asserted by Kinsey were barred by applicable statutes of limitations and that Kinsey lacked standing to commence a wrongful-death action.

¶ 8. On December 13, 2007, the circuit court entered an “Agreed Initial Discovery Order” which provided, in pertinent part, that Kinsey would have sixty days to respond to the defendants' “Initial Master Set of Interrogatories and Requests for Production of Documents” (“Master Set”). On December 18, 2007, the defendants propounded the Master Set to Kinsey, with responses due February 18, 2008. After receiving no responses to the Master Set, defendant MSA sent a letter to counsel for Kinsey which provided that those responses were “extremely overdue” and requested that Kinsey “respond to this discovery immediately to avoid involvement by the [c]ourt.” ⁹ Upon Kinsey's failure to respond to that letter, MSA filed a “Motion to Compel.” ¹⁰ Following hearing, the circuit court entered an “Order Compelling Discovery Responses.” Kinsey's subsequent responses pertinently revealed that she was Watkins's step-daughter and that Kinsey failed to list any wrongful-death beneficiaries, including Watkins's children identified in the “Last Will and Testament.”

¶ 9. Thereafter, the Forman Perry Defendants and MSA filed separate “Motions for Summary Judgment,” joined by Empire Abrasive, asserting that applicable statutes of limitations barred Kinsey's suit. According to the Forman Perry Defendants, “[a]ny wrongful death claims would have expired three years from [July 28, 2003] or July 28, 2006.” As the present action was commenced on April 27, 2007, the defendants contended that Kinsey had “missed the statute of limitations.” The defendants further asserted that “no statutory ‘tolling’ ” existed because of the “ Agreed Order of Dismissal Without Prejudice” in Spencer. (Emphasis added.) Finally, the defendants maintained that Section 15–1–69 (the “saving statute”) was inapplicable “[b]ecause Kinsey was not a party to” Spencer and this is “a new action for a new cause by a new plaintiff.” ¹¹ In response, Kinsey asserted that her claims were protected under Section 15–1–69 or, alternatively, that the defendants' delay in asserting this affirmative defense constituted a waiver.

¶ 10. Following a hearing, the circuit court entered summary judgment, dismissing all defendants with prejudice. The circuit court determined that “[t]here is no dispute that this is a wrongful death action.” (Emphasis added.) The circuit court concluded, inter alia, that the three-year statute of limitations barred this wrongful-death action because it “accrued on July 28, 2003,” and Section 15–1–69 was inapplicable since the action “is not a re-filing of a previously avoided or defeated matter ..., nor was it commenced by the prior plaintiff (Watkins) or his executor for the same cause.” (Emphasis added.)

ISSUE

¶ 11. If the statute of limitations was not waived, and if the “saving statute” is inapplicable, then the statute-of-limitations issue is case-dispositive. As such, this Court addresses only whether this wrongful-death action was barred by the statute of limitations.

ANALYSIS

¶ 12. Preliminarily, we address the nature of this action, a wrongful-death case. This Court has stated that Mississippi Code Section 11–7–13, Mississippi's wrongful-death statute, “encompasses all claims— including survival claims which could have been...