Lane v. Miss. Dep't of Transp.

• Decision Date: 23 May 2017
• Docket Number: NO. 2016–SA–00974–COA,2016–SA–00974–COA
• Citation: 220 So.3d 254
• Parties: Harry LANE, Appellant v. MISSISSIPPI DEPARTMENT OF TRANSPORTATION, SOUTHERN DISTRICT, Appellee
• Court: Mississippi Court of Appeals

220 So.3d 254

Harry LANE, Appellant

v.MISSISSIPPI DEPARTMENT OF TRANSPORTATION, SOUTHERN DISTRICT, Appellee

NO. 2016–SA–00974–COA

Court of Appeals of Mississippi.

May 23, 2017

ATTORNEYS FOR APPELLANT: MICHAEL DUANE MITCHELL, SAMUEL S. CREEL JR.

ATTORNEY FOR APPELLEE: TRACE D. MCRANEY

BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

WILSON, J., FOR THE COURT:

¶ 1. The sole issue in this appeal is whether the plaintiff's pre-suit notice of claim was sufficient to satisfy the requirements of the Mississippi Tort Claims Act (MTCA), specifically, Mississippi Code Annotated section 11–46–11(2) (Rev. 2012). The circuit court concluded that the notice did not substantially comply with the statute's requirements and granted summary judgment for the Mississippi Department of Transportation (MDOT) on that basis. For the reasons that follow, we agree and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. The relevant record facts can be summarized briefly. On October 2, 2015, Lane's attorney filed a notice of claim with MDOT that stated as follows:

On or about October 11, 2014, as Mr. Lane was operating his motorcycle in a safe and prudent manner southbound on the ramp of MS 67, Mr. Lane lost control of his motorcycle and ran off the left side of the roadway, the motorcycle came to rest East of MS 67 facing east, that Mr. Lane hit a damaged area on the roadway causing him to lose control of his motorcycle.

This accident was caused by the negligen[ce] for failure to properly inspect and maintain said roadway of [MDOT].

That [MDOT] has acted in reckless disregard to the members of the public who may have been operating their vehicles southbound of the ramp of MS 67.

That as a direct of [sic] proximate result of the aforesaid acts and failure to act Mr. Lane has suffered and continues to suffer damages in excess of $28,983.53, in personal and property damages, further regarding pain and suffering in the amount to be determined by the Court.

Therefore, the undersigned intends to bring suit, pursuant to Section 11–46–1, et seq. against [MDOT] for alleged neglect in reckless disregard for the safety of the driving public on the southbound ramp of MS 67, in Forrest County, Mississippi.

¶ 3. On January 27, 2016, Lane filed suit against MDOT in the Harrison County Circuit Court. His complaint repeated the allegations of his notice of claim. MDOT answered and on March 11, 2016, filed a motion for summary judgment arguing that the content of Lane's pre-suit notice of claim failed to satisfy the requirements of section 11–46–11. Lane responded, MDOT replied, and the court heard oral argument on the motion. On June 23, 2016, the circuit court granted MDOT's motion based on Lane's failure to comply with the requirements of section 11–46–11. Lane filed a timely notice of appeal.

DISCUSSION

¶ 4. This Court applies a de novo standard of review to a grant of summary judgment and to issues involving the interpretation and application of the MTCA. Lee v. Mem'l Hosp. at Gulfport , 999 So.2d 1263, 1266 (¶ 8) (Miss. 2008).

¶ 5. At least ninety days prior to filing suit against a governmental entity, a plaintiff "must file a notice of claim with the chief executive officer of the governmental entity." Miss. Code Ann. § 11–46–11(1). "Every notice of claim shall: (i) Be in writing; (ii) Be delivered in person or by registered or certified United States mail; and (iii) Contain a short and plain statement of the facts upon which the claim is based ...." Id. § 11–46–11(2)(b). The statute expressly identifies

seven required categories of information which must be included [in the notice of claim]. The seven required categories are as follows: (1) the circumstances which brought about the injury; (2) the extent of the injury; (3) the time and place the injury occurred; (4) the names of all persons known to be involved; (5) the amount of money damages sought; (6) the residence of the person making the claim at the time of the injury; and (7) the claimant's residence at the time of filing the notice.

Parker v. Harrison Cty. Bd. of Supervisors , 987 So.2d 435, 439 (¶ 18) (Miss. 2008) (quoting S. Cent. Reg'l Med. Ctr. v. Guffy , 930 So.2d 1252, 1257–58 (¶ 18) (Miss. 2006) ).

¶ 6. "[The Supreme] Court requires ‘substantial compliance’ with the MTCA notice provisions." Fairley v. George Cty. , 871 So.2d 713, 716 (¶ 8) (Miss. 2004). "Though substantial compliance with the notice provisions is sufficient, substantial compliance is not the same as, nor a substitute for, non-compliance." Id. at 717 (¶ 8) (quotation marks, alteration omitted). "The determination of substantial compliance is a legal, though fact-sensitive, question." Id. at (¶ 9) (quotation marks, alteration omitted). The defendant is entitled to summary judgment if the plaintiff failed to comply with the MTCA's pre-suit notice provisions. Id. at 718 (¶ 15).

¶ 7. In Guffy , the Supreme Court recognized that its prior opinions on the issue of "substantial compliance" had generated "confusion." Guffy , 930 So.2d at 1258 (¶ 19). The Court stated, "[This] confusion ... needs to be addressed by this Court today in order to provide direction and clarity to the courts and the bar." Id. To that end, the Court wrote:

The confusion has arisen ... as to how much information is required by this Court under each of the seven categories .... As a practical example, the first category requires notice of the "circumstances which brought about the injury." In order to comply with this requirement, the notice need not disclose every single fact, figure and detail, but rather the substantial details, in order to comply with the requirements of [section] 11–46–11(2). But, the failure to provide any of the seven statutorily required categories of information falls short of the statutory requirement and amounts to non-compliance with [ section] 11–46–11(2). However, where some information in each of the seven required categories is provided, this Court must determine whether the information is "substantial" enough to be in compliance with the statute. If it is, the result is "compliance," not "substantial compliance" with the requirements under [section] 11–46–11(2).

Id. at (¶ 20).

¶ 8. Two years later, the Supreme Court unmistakably reaffirmed Guffy 's guidance to the bench and bar. Parker , 987 So.2d at 439–40 (¶ 18). Indeed, in Parker , the Supreme Court stated: "this Court does not even reach the issue of whether a plaintiff substantially complied with the statute if all seven categories of information are not contained in the notice letter." Id. at 440 (¶ 19). The Supreme Court also held that Guffy 's discussion of substantial compliance was "controlling" and "applied retroactively" to all cases awaiting trial or pending on appeal when it was decided. Id.

¶ 9. This line of cases soon took an unexpected turn. About four months after Parker handed down, the Supreme Court stated, in a footnote, that what Guffy had trumpeted as much-needed "direction and clarity to the courts and the bar" was actually only "dictum" that obviously had no "binding effect." Lee , 999 So.2d at 1266 n.3. Not only that, the Court criticized "the trial court's reliance on Guffy " as "misplaced." Id.

¶ 10. The foregoing decisions are hard to reconcile. One purports to provide "direction and clarity to the courts and the bar," while another criticizes a circuit judge for heeding that very direction. One holds that Guffy 's pronouncements apply retroactively and are "controlling," while the next says that those pronouncements were only "dictum."¹ With "direction and clarity" downgraded to dicta to be relied on at our own risk, we will muddle through as best we can. We address each of the seven required categories of information in turn.

1. The circumstances that brought about the injury

¶ 11. MDOT concedes that Lane's notice "arguably fully satisf[ies]" this requirement. We agree, although we note that Lane provided only slightly more information than the Supreme Court deemed insufficient in Fairley. See Fairley , 871 So.2d at 717–18 (¶¶ 12–13) ; id. at 719 (¶ 20) (Easley, J., dissenting).

2. The extent of the injury

¶ 12. Lane provided no information about the extent of his injuries. His notice stated only that he "ha[d] suffered and continue[d] to suffer damages in excess of $28,983.53, in personal and property damages," and unspecified "pain and suffering" damages. Our Supreme Court has "recognize[d] ... that on occasion the full extent of such injuries may only become known at a later date. However, a plaintiff is required to reveal the extent of injuries known at the time the notice letter is sent." Fairley , 871 So.2d at 718 (¶ 13). Here, Lane filed his notice of claim almost one year after the alleged motorcycle accident but provided no description of his alleged injuries or their extent, disclosing only the types of damages he claimed. Lane failed to satisfy the requirement. See id. (finding that notice of "personal injuries and/or property damage" failed to satisfy the requirement).²

3. The time and place the injury occurred

¶ 13. MDOT disputes that Lane's notice satisfied this requirement. MDOT emphasizes that the notice named the wrong county. The accident occurred in Harrison County, not Forrest County, as Lane's notice of claim stated. In fact, Highway 67 is located entirely in Harrison County, so the accident could not have occurred on Highway 67 in Forrest County. MDOT also points out that Lane's notice failed to state what time of day the injury occurred. However, in the circuit court, MDOT stated in its motion for summary judgment that Lane's "notice ... provided information to satisfy" this particular requirement. Indeed, it would appear that MDOT had not noticed Lane's mistake when it filed its motion for summary judgment. Lane first raised the issue when he acknowledged the mistake in his response. As such, it appears that MDOT knew and understood from the notice where the accident allegedly occurred. Therefore, we accept that Lane's notice provided adequate facts...