Parker v. Harrison County Bd. of Sup'Rs

• Decision Date: 31 July 2008
• Docket Number: No. 2007-CA-00532-SCT.,2007-CA-00532-SCT.
• Citation: 987 So.2d 435
• Parties: Sharon PARKER and Aline Whisenant v. HARRISON COUNTY BOARD OF SUPERVISORS and Wilfred E. Ross.
• Court: Mississippi Supreme Court

987 So.2d 435

Sharon PARKER and Aline Whisenant v. HARRISON COUNTY BOARD OF SUPERVISORS and Wilfred E. Ross.

No. 2007-CA-00532-SCT.

Supreme Court of Mississippi.

July 31, 2008.

George W. Byrne, Jr., attorney for appellants.

Karen J. Young, attorney for appellees.

Before SMITH, C.J., CARLSON and DICKINSON, JJ.

CARLSON, Justice, for the Court.

¶ 1. Aggrieved by the Harrison County Circuit Court's entry of a judgment of dismissal pursuant to a grant of summary judgment for failure to comply with the notice provisions of the Mississippi Tort Claims Act, Sharon Parker and Aline Whisenant appeal to us. Finding no error, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On July 2, 2003, Sharon Parker was operating a motor vehicle in a westerly direction on Highway 90 in Biloxi, and Aline Whisenant was a passenger in Parker's vehicle. When Parker stopped her vehicle due to the heavy traffic, it was rear-ended by a vehicle driven by Wilfred E. Ross, a Harrison County employee who was driving a county vehicle in the course and scope of his employment at the time of the accident.

¶ 3. On March 12, 2004, Parker and Whisenant filed their Complaint for Damages in the Circuit Court for the Second Judicial District of Harrison County, wherein they sought damages in the sum of $750,000 and $500,000, respectively, against the Harrison County Board of Supervisors.

¶ 4. On August 17, 2005, the Harrison County Board of Supervisors and Wilfred E. Ross filed their motion for summary judgment asserting that the plaintiffs failed to comply with the provisions of the Mississippi Tort Claims Act (MTCA), and more specifically, section 11-46-11, in that the plaintiffs did not give Harrison County ninety days' notice to either admit or deny the claims prior to filing their lawsuit. See Miss.Code Ann. § 11-46-11 (Rev.2002). The defendants further asserted that the automobile accident occurred on July 2, 2003, and that the certified notice of claim was given to the Board on January 16, 2004.¹ The complaint was filed on March 12, 2004, and the defendants were served with process and a copy of the complaint shortly thereafter, approximately fifty-six (56) days after the County's receipt of the certified notice of claim.

¶ 5. Additionally, the defendants' motion for summary judgment asserted the statutory exemptions under Mississippi Code Annotated Section 11-46-9(1)(d) (Rev. 2002), which states in pertinent part:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:

...

(d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.[²] ¶ 6. On January 16, 2007, the plaintiffs filed their Opposition to Defendant's Motion for Summary Judgment, asserting that the Board was notified of the plaintiffs' claim as early as July 14, 2003, through Walt Warren of Associated Adjusters, representing Harrison County's insurer. Specifically, the plaintiffs assert that Warren, on behalf of the Board, contacted the plaintiffs on July 14, 2003, concerning the plaintiffs' claim and requested signed medical authorization forms so Warren could obtain the plaintiffs' medical records relating to the injuries allegedly sustained in the motor vehicle accident. Furthermore, the plaintiffs assert that on August 12, 2003, the plaintiffs' initial counsel communicated with Warren that he sought to resolve at that time the issue of the plaintiffs' property-damage claim, reserving the issue of the plaintiffs' injuries and medical treatment for subsequent disposition. In fact, the Board settled the plaintiffs' property-damage claim in August 2003.

¶ 7. In further support of their Opposition to Defendant's Motion for Summary Judgment, the plaintiffs set out that they retained different counsel, who mailed a certified claim letter to the Board on January 7, 2004, reasserting the claims already made by the plaintiffs in July, 2003. Thus, the plaintiffs claim that as of January, 2004, the Board had more than ninety days after receipt of notice in which to investigate their claim and either to admit or to deny the plaintiffs' claims prior to the filing of their lawsuit.

¶ 8. On January 26, 2007, a hearing was held on the defendants' motion for summary judgment in the Circuit Court for the Second Judicial District of Harrison County, Judge Lisa P. Dodson presiding. At the conclusion of the hearing, Judge Dodson took this matter under advisement, and on April 4, 2007, she entered an Order Granting Summary Judgment with Findings of Fact and Conclusions of Law. Because she dismissed the plaintiffs' case for failure to comply with the notice provisions of section 11-46-11, Judge Dodson chose not to address the issue of whether the defendants were immune from suit pursuant to section 11-46-9(1)(d). Aggrieved by the trial court's grant of summary judgment and entry of a judgment of dismissal in favor of the Harrison County Board of Supervisors and Wilfred E. Ross, Parker and Whisenant appealed to this Court.

DISCUSSION

¶ 9. The standard for reviewing a trial court's grant of summary judgment is well-settled. We are required to apply a de novo standard of review. Progressive Gulf Ins. Co. v. Dickerson & Bowen, Inc., 965 So.2d 1050, 1052 (Miss.2007) (citing Price v. Purdue Pharma Co., 920 So.2d 479, 483 (Miss.2006)). As stated in Mississippi Rule of Civil Procedure 56(c), "the trial court must view all the evidence ... in the light most favorable to the nonmoving party; and, upon this consideration, if the moving party is entitled to a judgment as a matter of law, the motion should be granted; otherwise, it should be denied." Lumberman's Underwriting Alliance v. City of Rosedale, 727 So.2d 710, 713 (Miss.1998) (citing Sanford v. Federated Guar. Ins. Co., 522 So.2d 214 (Miss. 1988)); Southern Farm Bureau Cas. Ins. Co. v. Brewer, 507 So.2d 369, 370 (Miss. 1987); Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983).

¶ 10. Briefly stated, Parker and Whisenant assert that en route to the grant of summary judgment, the trial court erred (1) in failing to find that they had substantially complied with the notice provisions of Mississippi Code Annotated Section 11-46-11, and (2) in retroactively applying this Court's more recent decisions to their case.

¶ 11. For the sake of today's discussion, we restate and combine the relevant issues.

I. WHETHER THE PLAINTIFFS FAILED TO COMPLY WITH THE NINETY-DAY NOTICE REQUIREMENT AS SET OUT IN MISSISSIPPI CODE ANNOTATED SECTION 11-46-11(1).

II. WHETHER THE PLAINTIFFS FAILED TO COMPLY WITH THE NOTICE CONTENTS REQUIREMENT AS SET OUT IN MISSISSIPPI CODE ANNOTATED SECTION 11-46-11(2).

¶ 12. The plaintiffs, Parker and Whisenant, contend that they substantially complied with the notice provisions of Mississippi Code Annotated Sections 11-46-11(1) & (2) (Rev.2002) by giving the Board at least ninety days' notice by providing it with the sufficient information required pursuant to statute. While the plaintiffs recognize that "strict compliance" with certain provisions of the MTCA is now required to maintain a suit under the MTCA, they assert that at the time they filed suit, "substantial compliance" with the notice statute was all that was required.

¶ 13. On the other hand, the Board³ asserts that the plaintiffs failed to comply with the ninety-day notice requirement as set out in Mississippi Code Annotated Section 11-46-11(1) (Rev.2002). In addition, the Board asserts that the plaintiffs failed to substantially comply with the notice provision when they failed to provide written notice that contained all seven categories of information outlined in Mississippi Code Annotated Section 11-46-11(2) (Rev. 2002).

¶ 14. Since the disposition of Issue II — whether the plaintiffs failed to substantially comply with the notice provision when they failed to provide written notice that contained all seven categories of information outlined in Mississippi Code Annotated Section 11-46-11(2) — controls the outcome of this appeal, we need not discuss Issue I — whether the plaintiffs provided the requisite ninety days notice for filing suit as set out in Mississippi Code Annotated Section 11-46-11(1).⁴

¶ 15. The MTCA outlines a specific procedure which a claimant must follow in order to file a claim against a government entity. The statute states in relevant part:

Every notice of claim required by subsection (1) of this section shall be in writing, and shall be 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(2) (Rev.2002).

¶ 16. The plaintiffs claim that they complied with this statute at least three times before filing suit. First, the plaintiffs assert they had contact with Warren at Associated Adjusters, the Board's insurer, in July of 2003. The plaintiffs contend they informed Warren of their claim, signed medical release forms, and settled a property damage claim. Second, the plaintiffs assert that their first attorney wrote a letter on August 12, 2003, notifying Warren at Associated Adjusters of his representation of the plaintiffs. This letter stated:

I am writing to advise of our representation of the above named clients with regard to an automobile accident occurring on July 2, 2003 in Biloxi, Mississippi. It is my understanding that our clients were passengers in a vehicle that was rear-ended by a vehicle operated by an...