Lattimore v. City of Laurel

• Decision Date: 22 April 1999
• Docket Number: No. 98-CA-00331-SCT.,98-CA-00331-SCT.
• Citation: 735 So.2d 400
• Parties: Glennidra LATTIMORE and Michael Naylor v. CITY OF LAUREL, Mississippi and Jeffery Chandler.
• Court: Mississippi Supreme Court

735 So.2d 400

Glennidra LATTIMORE and Michael Naylor v. CITY OF LAUREL, Mississippi and Jeffery Chandler.

No. 98-CA-00331-SCT.

Supreme Court of Mississippi.

April 22, 1999.

Eugene C. Tullos, Attorney for Appellants.

Harold Waits Melvin, Laurel, Patricia Francine Melvin, University, Attorneys for Appellees.

EN BANC.

SMITH, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. On February 3, 1995, Appellants Glennidra Lattimore and Michael Naylor (hereinafter "Lattimore") were involved in an automobile accident with a fire truck owned by the Appellee the City of Laurel and operated by Appellee Fireman Jeffery Chandler (hereinafter "Laurel"). The accident occurred at the intersection of Speck Wilson Drive and Carroll Gartin Drive in Laurel, Mississippi. On February 2, 1996, one day prior to the running of the one year statute of limitations, Eugene C. Tullos, attorney for Lattimore, filed suit on behalf of Lattimore with service of process by certified mail, return receipt requested.

¶ 2. On April 1, 1996, Laurel filed their motion for summary judgment alleging no genuine issue of material fact. Specifically, Laurel alleged that Lattimore failed to comply with Section 11-46-11(1) & (2) of the Mississippi Tort Claims Act (hereinafter the "MTCA") by not providing written pre-suit notice of claim to the city. In the response to the motion for summary judgment, Tullos testified by affidavit that on February 6, 1995, he mailed a copy of his letter of representation to the City of Laurel and Jeffrey Chandler advising them of his representation in this matter.

¶ 3. After a hearing on the motion for summary judgment, the County Court Judge granted summary judgment for Laurel, because Section 11-46-11 applied and should have been strictly followed. Lattimore timely appealed to the Circuit Court of Jones County, Mississippi. After review of the record and the parties' briefs, the circuit court affirmed the county court's judgment.

¶ 4. Aggrieved, Lattimore and Naylor now appeal to this Court and raise the following contention of error:

I. THE COURT IMPROPERLY GRANTED LAUREL'S MOTION FOR SUMMARY JUDGMENT BECAUSE LATTIMORE GAVE SUFFICIENT NOTICE TO LAUREL TO SATISFY THE REQUIREMENTS FOUND IN § 11-46-11(1) AND (2) OF THE MISSISSIPPI CODE OF 1972 (ANNOTATED).

STANDARD OF REVIEW

¶ 5. The summary judgment motion is the only pretrial motion which allows the Court to "go behind the pleadings" and consider evidence such as admissions, answers to interrogatories, depositions, and affidavits. If this examination indicates there is no genuine issue of material fact, the moving party is entitled to a judgment as a matter of law. Newell v. Hinton, 556 So.2d 1037, 1041-42 (Miss.1990). In reaching this determination, the Court examines affidavits and other evidence to determine whether or not a triable issue exists. Our purpose is not to resolve such an issue. While the motion for summary judgment is designed to expose "sham" claims and defenses, it should not be used to circumvent a trial on the merits where there are genuine issues of material fact. M.R.C.P. 56 cmt. We employ a de novo standard of review of the lower court's grant of a summary judgment motion. Saucier v. Biloxi Reg'l Med. Ctr., 708 So.2d 1351, 1354 (Miss.1998)(citing Townsend v. Estate of Gilbert, 616 So.2d 333, 335 (Miss.1993)

). "The evidence must be viewed in the light most favorable to the... non-moving part [y] and [that party is] to be given the benefit of every reasonable doubt." Id. (quoting Townsend, 616 So.2d at 335).

DISCUSSION OF LAW

I. WHETHER THE COURT IMPROPERLY GRANTED LAUREL'S MOTION FOR SUMMARY JUDGMENT BECAUSE LATTIMORE GAVE SUFFICIENT NOTICE TO LAUREL TO SATISFY THE REQUIREMENTS FOUND IN § 11-46-11(1) AND (2) OF THE MISSISSIPPI CODE OF 1972 (ANNOTATED).

¶ 6. Section 11-46-11(1) and (2) state, as follows:

(1) After all procedures within a governmental entity have been exhausted, any person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity, and, if the governmental entity is participating in a plan administered by the board pursuant to Section 11-46-7(3), such chief executive officer shall notify the board of any claims filed within five (5) days after the receipt thereof.

(2) The notice of claim required by subsection (1) of this section shall be in writing, delivered in person or by registered or certified United States mail. Every notice of claim shall contain a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought and the residence of the person making the claim at the time of the injury and at the time of filing the notice.

. . . .

Miss.Code Ann. § 11-46-11(1) & (2) (Supp. 1998) (emphasis added). It is uncontested that Lattimore failed to strictly follow the statute's guidelines.

¶ 7. Lattimore however contests the "arbitrary and strict notice of claim requirement" and the "lack of a constructive or actual notice provision" in Section 11-46-11(1) & (2). Lattimore further admits that this Court has already specifically addressed the notice of claim requirements of Section 11-46-11, but request this Court to reconsider its strict interpretation in City of Jackson v. Lumpkin, 697 So.2d 1179 (Miss.1997), and apply a substantial compliance standard instead.

¶ 8. Since the submission of the parties' briefs, this Court announced a substantial compliance standard on a case-by-case factual analysis. Reaves v. Randall, 729 So.2d 1237 (Miss.1998). In Reaves, this Court held, "In order to carry out the legislative purpose of providing relief to injured citizens, we hold that substantial compliance with the notice provisions of the Act is sufficient." Id. at 1240. Therefore, in Reaves, this Court carved out an exception to the strict interpretation of the Act announced in Lumpkin.

¶ 9. Furthermore, in Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999), this Court announced that the strict compliance standard found in Lumpkin as well as its progeny—Carpenter v. Dawson, 701 So.2d 806 (Miss.1997) and Holmes v. Defer, 722 So.2d 624 (Miss.1998)-was overruled. Carr, 733 So.2d at 263.

¶ 10. The question would then become whether Lattimore substantially complied with the notice of claim requirements in accord with this Court's recent announcements in Reaves and Carr. Under substantial compliance, a genuine issue of material fact is in dispute which justifies a reversal and a remand. That issue is whether Laurel actually received the letter Lattimore claims was mailed to the city. If so, Lattimore has possibly substantially complied with the MTCA.

¶ 11. The record contains two conflicting affidavits on this issue. First, in the response to the motion for summary judgment, Lattimore's counsel testified by affidavit that on February 6, 1995, he mailed a copy of his letter of representation by regular U.S. mail, postage prepaid, to the City of Laurel and Jeffrey Chandler advising them of his representation in this matter. Second, the Safety Director of Laurel, Alex Pope, testified by affidavit that he handles all such claims and that "[t]he City of Laurel did not receive any written notice from the Plaintiff, Lattimore, in this matter prior to filing suit as required under Section 11-46-11(1)(2)."

¶ 12. Section 11-46-11(2) states, in pertinent part, that "[t]he notice of claim required by subsection (1) of this section shall be in writing, delivered in person or by registered or certified United States mail." Miss.Code Ann. § 11-46-11(2) (Supp.1998). We assume Lattimore did not mail it by registered or certified mail because then someone would have the letter or a receipt as a signature is required. Moreover, Lattimore only claims it was mailed "postage prepaid, U.S. mail, addressed to the City of Laurel...." The county court should determine whether Laurel actually received the letter as this is in dispute.

¶ 13. We note that no affidavit from the mayor or any other officials were received from Laurel. In Reaves, we stated as follows:

[T]he Act leaves the term "chief executive officer of the governmental entity" undefined. This language has proved overly broad and likely has created much hardship. In order to give reasonable meaning to the statute, we hold today that this term may be read to include any of the following: president of the board, chairman of the board, any board member, or such other person employed in an executive capacity by a board or commission who can be reasonably expected to notify the governmental entity of its potential liability.

Reaves, 729 So.2d at 1240. Cf. Alexander v. Mississippi Gaming Comm'n, 735 So.2d 360, 361 (Miss.1999)

(delivery of notice of claim to Chairman of the Gaming Commission constituted substantial compliance). The affidavit from the Safety Director has some ambiguity. It may be construed to say that no letter was received or that the letter which was received did not comply with the act. Additionally, it is not an affidavit from the chief executive officer of the city denying receipt. In these circumstances we deem it best that the factual issue whether the letter which is alleged to have been sent was in fact received by the City of Laurel and, if so, to whom was it directed.

¶ 14. We also note that the Legislature has very recently amended Section 11-46-11.¹ The amendments add legislative intent to this analysis. Under the new Section 11-46-11(1), it reads that "if the governmental entity is a municipality, then (service of the notice of claim) upon the city clerk (may be...