McCrary v. City of Biloxi

• Court: Mississippi Supreme Court
• Citation: McCrary v. City of Biloxi, 757 So.2d 978 (Miss. 2000)
• Decision Date: 17 February 2000
• Docket Number: No. 97-CT-01492-SCT.,97-CT-01492-SCT.
• Parties: Paul T. McCRARY v. CITY OF BILOXI, Mississippi.

757 So.2d 978

Paul T. McCRARY v. CITY OF BILOXI, Mississippi.

No. 97-CT-01492-SCT.

Supreme Court of Mississippi.

February 17, 2000.

Rehearing Denied May 4, 2000.

Robert W. Smith, Biloxi, Attorney for Appellant.

Mary A. Nichols, Biloxi, Attorney for Appellee.

En Banc.

ON WRIT OF CERTIORARI

PITTMAN, Presiding Justice, for the Court:

¶ 1. Paul McCrary, a police officer with the City of Biloxi, filed a petition to controvert with the Mississippi Worker's Compensation Commission. The ALJ and the Commission found the petition to be untimely filed and dismissed the petition. The circuit court affirmed, and McCrary appealed. His case was assigned to the Court of Appeals which, in a 5-4-1 decision, affirmed. McCrary v. City of Biloxi, No. 97-CC-01492-COA (Miss.Ct.App. Apr.6, 1999). McCrary subsequently filed a petition for writ of certiorari arguing that the City should be equitably estopped from asserting the time bar because City officials told him they would file a claim on his behalf. We granted certiorari on September 23, 1999. Because McCrary was misled by the City's representation that it would file his workers' compensation claim for him, we reverse and remand to the Mississippi Workers' Compensation Commission.

FACTS

¶ 2. McCrary was a police officer employed with the City of Biloxi. On October 12, 1993, McCrary met with his superiors and informed them that he suffered from work-related depression which became so debilitating on August 18, 1993, he was unable to continue performing his job duties. On that day, McCrary completed the employee's first report of injury and the employee's selection of physician. McCrary alleges that during this meeting City officials told him that they would file his workers' compensation claim for him with the Commission.

¶ 3. The next day, the employer sent a completed notice of injury form, which is commonly referred to as a Form B-3, to the Workers' Compensation Commission. In response, the Commission sent a notice dated November 25, 1993 to McCrary indicating that the employer had filed a notice of his work-related injury.

¶ 4. The City and its carrier began investigating McCrary's claim, and took a taped statement from McCrary on November 10, 1993. At the time, however, no medical benefits or work-related disability compensation by the City's workers' compensation carrier were being provided to him. McCrary retained an attorney in January of 1994, who sent a letter to the City and the carrier in order to place them on notice of his representation of McCrary. However, McCrary's attorney did not inform the Workers' Compensation Commission of his representation until January 30, 1996, when he sent a letter to the Commission along with two medical reports.

¶ 5. On February 14, 1994, the claims administrator contacted McCrary's counsel stating that McCrary's medical records from his treating psychologist were being requested. The letter further stated that the carrier would arrange for an independent medical examination in the near future. On March 30, 1994, counsel for the claims administrator requested a medical authorization from McCrary. Counsel for the claims administrator again requested medical authorizations on August 23, 1994, and on September 13, 1994. McCrary complied with these requests and two more requests for medical authorizations made by the counsel for the claims administrator after the first one was allegedly lost by the hospital.

¶ 6. On November 2, 1995, the Commission contacted the employer's claims administrator for a status report on the claim, and on February 12, 1996, the claims administrator notified the Commission that the employer was denying that the injury suffered by McCrary was work-related. In turn, the Commission notified McCrary on February 13, 1996, that the City was denying his injury was work-related. On March 20, 1996, the claims administrator wrote McCrary's counsel stating that McCrary's claim for benefits was being denied and that the two year statute of limitations had run on the claim.

¶ 7. McCrary then filed a Petition to Controvert with the Workers' Compensation Commission on April 1, 1996. The Administrative Law Judge and the Commission both found the petition to be untimely filed, and McCrary's petition was dismissed. He appealed to the circuit court which affirmed the decision of the Commission. McCrary appealed from the circuit court and his case was assigned to the Court of Appeals, which in a 5-4-1 decision, affirmed the dismissal of his petition. He then filed a petition for writ of certiorari which we granted.

ANALYSIS

¶ 8. McCrary argues that a substantial compliance standard should be applied to the procedural mandates of the Mississippi Worker's Compensation Act, just as we did regarding the Mississippi Tort Claims Act in Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999). In response, the City argues that the analogy McCrary is attempting to make is improper and incorrect because notice, as is required under the Tort Claims Act, is not equivalent or comparable to initiating a legal action by filing a complaint or petition to controvert.

¶ 9. Miss.Code Ann. § 71-3-35(1) states in relevant part:

Regardless of whether notice was received, if no payment of compensation (other than medical treatment or burial expense) is made and no application for benefits filed with the commission within two years from the date of the injury or death, the right to compensation therefor shall be barred.

¶ 10. McCrary admits that he did not file his petition to controvert within the two year time limitation set forth by Miss.Code Ann. § 71-3-35(1). However, he argues that because his employer told him that the City would file a claim for him on his behalf, it should be estopped from asserting the statute of limitations. We find Mississippi Department of Public Safety v. Stringer, 748 So.2d 662 (Miss.1999), to be instructive.

¶ 11. In that case, Stringer was involved in an automobile collision with a vehicle driven by an employee of the Mississippi Department of Public Safety. Stringer filed an accident report with the Mississippi Highway Safety Patrol and sent a letter to the state claims investigator, but never filed a notice of claim as required by the Mississippi Tort Claims Act. Stringer subsequently filed a complaint against the Mississippi Department of Public Safety and the driver of the vehicle. Stringer at 662-63.

¶ 12. The question before us was, "[w]hether the action was commenced within the time period allowed pursuant to the Mississippi Tort Claims Act, Miss.Code Ann. § 11-46-1 to -23 (Supp.1993)." Id. at 663. In finding that the action was not timely filed, we stated:

After careful research, we find no precedent where this Court has applied the doctrine of equitable estoppel to excuse a plaintiff's failure to comply with the statute of limitations of the Tort Claims Act. We have allowed the doctrine to estop the sovereign's assertion that a claimant did not substantially comply with the pre-suit notice of claim provisions of the Act. In Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999), we found that the "Report of Public Liability" which Carr completed at the office of the city clerk sufficiently complied with the pre-suit notice of claim provisions of the Tort Claims Act. We held that where the form had been provided by the office of the city clerk and settlement negotiations were ongoing, the city was estopped from asserting that the notice of claim form was not in substantial compliance with the notice provisions of the Act.

Carr is not applicable to the present case. We need not reach the question of whether Stringer's notice of claim was sufficient because Stringer neglected to file his claim until two years after the accident occurred. The applicable statute of limitations provides for one year plus ninety-five days from the time of the accident, provided that the claimant complies with the notice provisions of the Act. In Carr we cited favorably a Wisconsin Supreme Court case in which that court remarked that a notice of claim statute is "not a statute of limitation but imposes a condition precedent to the right to maintain an action." Carr v. Town of Shubuta, 733 So.2d 261 (quoting Mannino v. Davenport, 99 Wis.2d 602, 614, 299 N.W.2d 823, 828 (1981)). We have previously held that the timely filing of notice is a jurisdictional issue. City of Jackson v. Lumpkin, 697 So.2d 1179, 1181 (Miss.1997), overruled on other grounds, Carr v. Town of Shubuta, 733 So.2d 261 (Miss. 1999). Notice may substantially comply with the statute so long as it is timely filed. Additionally, while inequitable or fraudulent conduct does not have to be established to estop an assertion of an inadequate notice of claim defense, inequitable or fraudulent conduct must be established to estop a party from asserting a statute of limitations defense. Carr v. Town of Shubuta, 733 So.2d 261, (citing Mannino v. Davenport, 99 Wis.2d 602, 614, 299 N.W.2d 823, 828).

Stringer at 664-65.

¶ 13. We went on to explain:

We have long held that the elements of equitable estoppel are as follows:

Conduct and acts, language or silence, amounting to a representation or concealment of material facts, with knowledge or imputed knowledge of such facts, with the intent that representation or silence, or concealment be relied upon, with the other party's ignorance of the true facts, and reliance to his damage upon the representation or silence. The burden of establishing the elements of an estoppel is on the party asserting the estoppel. The existence of the elements of an estoppel must be established by the preponderance of the evidence.

Chapman v. Chapman, 473 So.2d 467, 470 (Miss.1985) (citations omitted).

Although under certain circumstances a defendant's actions may be such that estop that defendant from claiming the protection of a statute of limitations, we do not agree that equitable estoppel should be

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