Powell v. City of Pascagoula

• Decision Date: 16 December 1999
• Docket Number: No. 98-CA-00643-SCT.,98-CA-00643-SCT.
• Citation: 752 So.2d 999
• Parties: Shirley H. POWELL v. The CITY OF PASCAGOULA, Mississippi and Shannon J. Broom.
• Court: Mississippi Supreme Court

752 So.2d 999

Shirley H. POWELL v. The CITY OF PASCAGOULA, Mississippi and Shannon J. Broom.

No. 98-CA-00643-SCT.

Supreme Court of Mississippi.

December 16, 1999.

David C. Frazier, Pascagoula, Attorney for Appellant.

Robert W. Wilkinson, Adam Stone, Pascagoula, Attorneys for Appellees.

BEFORE PRATHER, C.J., SMITH AND COBB, JJ.

COBB, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. This is yet another case caught in the transition from "strict compliance" to "substantial compliance" with regard to the notice of claims requirements of the Mississippi Tort Claims Act, Miss.Code Ann. § 11-46-11 (Supp.1999). The appeal before this Court is from the trial court's summary judgment in favor of the City of Pascagoula and Pascagoula Police Officer Shannon J. Broom.

¶ 2. The automobile accident which resulted in the case sub judice occurred on November 28, 1995. On February 12, 1996, plaintiff Shirley H. Powell's attorney hand delivered a notice letter addressed to the Pascagoula City Clerk, Ms. Brenda Reed.¹ The letter stated that he represented the plaintiff with respect to injuries she sustained when her automobile was struck by the City of Pascagoula police automobile being operated by Officer Broom. In the notice letter, Powell's attorney requested that he be contacted "[o]nce you and the City's insurance carrier has [sic] had an opportunity to consider this matter," and further stated that "if this matter has not been resolved within ninety (90) days of the date of this letter" he would commence a civil action against the City of Pascagoula and Officer Broom. In argument during the hearing on the defendants' Motion to Dismiss, Powell's attorney explained that he addressed the letter to the city clerk after contacting the city attorney "out of an abundance of caution", and asking him about the proper person on whom to serve the letter. After receiving an uncertain response, Powell's attorney asked if Brenda Reed would be the correct person, to which the city attorney responded something to the effect that "she is the city clerk. I guess that's as good as any." The city attorney did not deny this explanation of the February 1996 conversation, but did say that, because it was a couple of years ago, he had "absolutely no memory of it."

¶ 3. The record is silent on what, if any, contact was made between the City and Powell's attorney between the delivery of the letter in February 1996, and the filing of Powell's original complaint in the Jackson County Circuit Court on August 20, 1996. The complaint demanded actual and compensatory damages, together with attorney fees, court costs and pre-judgment interest from November 28, 1995, the date on which Powell was injured when officer Broom's vehicle struck her vehicle.

¶ 4. The City and Broom answered and stated their affirmative defenses, denying fault and liability, and claiming governmental immunity and the court's lack of subject matter jurisdiction, stating that Powell had failed to comply with the notice of claims requirements of Miss.Code Ann. § 11-46-11 (Supp.1999).

¶ 5. Four months later, the City and Broom filed a Motion to Dismiss claiming the trial court's lack of jurisdiction. Following a hearing on the motion, the trial court denied the Motion to Dismiss, stating that "substantial compliance" with the notice provisions was sufficient for the purposes of the statute, and that Powell had substantially complied with those provisions.

¶ 6. The City and Broom filed a Motion for Reconsideration of Dismissal, or in the Alternative to Strike Damages Over the Statutory Amount. On September 3, 1997, Powell was granted an extension of the deadline to respond to the Motion for Reconsideration, in order that depositions of the City Attorney and City Clerk might be taken. Subsequently Powell filed a Response in Opposition to the City's and Broom's Motion for Reconsideration of dismissal, and then was allowed to file an Amended Complaint which added the allegation that Officer Broom was speeding (a criminal offense) at the time of the accident, in reckless disregard of the safety and well-being of the Powell and others. The Amended Complaint did not contain additional information regarding Powell's address.

¶ 7. On March 30, 1998, the circuit judge reversed himself, and "reluctantly" granted the motion to dismiss, treating it as a "summary judgment since matters outside the pleadings were submitted for consideration" and declaring that "[a]lthough this Court is of the opinion that `substantial compliance' is all that should be required... our Supreme Court obviously feels otherwise by the pronouncements in Lumpkin and Carpenter. Accordingly, this Court is duty bound to apply the strict compliance standard." On April 16, Powell filed her Notice of Appeal.

¶ 8. Based upon this Court's decision in Carr v. Town of Shubuta, 733 So.2d 261 (Miss.1999) which overruled City of Jackson v. Lumpkin, 697 So.2d 1179 (Miss. 1997) and Carpenter v. Dawson, 701 So.2d 806 (Miss.1997) and declared "substantial compliance" as the proper standard for compliance with the statute, we reverse on the notice issue, finding that Powell substantially complied with the notice requirements of Miss.Code Ann. § 11-46-11, and we remand for further proceedings consistent with this opinion.

STATEMENT OF THE FACTS

¶ 9. Powell's action against The City of Pascagoula and police officer Shannon J. Broom arose out of an accident which occurred as Broom was traveling approximately 60 miles per hour in a 35 miles per hour speed zone. After stopping at an intersection, Powell was proceeding to turn across Highway 90, when Broom, an onduty city police officer, struck the side of her vehicle with the police car which he was driving. Powell alleged that she suffered serious personal injuries and extensive damage to her vehicle. The Police Department Supplementary Report, completed by an officer Butler, reflects the statement of a witness who said that she "did not observe any blue lights flashing or hear a siren from the patrol vehicle" before the accident. The City and Broom acknowledge that he was on patrol, but do not allege that he was responding to any kind of emergency situation or a call. Broom contended that he never acted in reckless disregard of the safety of anyone traveling in the area, and further, that Powell failed to check for oncoming traffic and proceeded into the path of Officer Broom. At all times material herein, Broom was acting as an agent of the City of Pascagoula in his position as a police officer of the City of Pascagoula Police Department.

¶ 10. The Appellant raised only one issue on appeal:

WHETHER THE LOWER COURT ERRED IN GRANTING THE APPELLEES' MOTION FOR RECONSIDERATION OF DISMISSAL FOR LACK OF JURISDICTION ON THE BASIS THAT THE APPELLANT'S NOTICE OF CLAIM LETTER PURSUANT TO § 11-46-11 WAS NOT IN "STRICT COMPLIANCE" WITH THE NOTICE REQUIREMENTS, AS OPPOSED TO "SUBSTANTIAL COMPLIANCE"

Standard of Review

¶ 11. "This Court conducts de novo review of orders granting or denying summary judgment and examines all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied." McCullough v. Cook, 679 So.2d 627, 630 (Miss. 1996) "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." Lattimore v. City of Laurel, 735 So.2d 400, 402 (Miss.1999), (citing Newell v. Hinton, 556 So.2d 1037, 1041-42 (Miss.1990)); Miss. R. Civ. P. 56(c). "A fact is material if it tends to resolve any of the issues properly raised by the parties." Webb v. Jackson, 583 So.2d 946, 949 (Miss.1991).

Miss.Code Ann. § 11-46-11

¶ 12. At the time the cause of action arose, and the suit was brought sub judice, the notice provision of the Mississippi Tort Claims Act, Miss.Code Ann. § 11-46-11 (Supp.1999), read as shown below in regular type. Words added or changed by the 1999 amendments to this section are shown in italics, 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, (Service of notice of claim may also be had in the following manner: If the governmental entity is a county, then upon the chancery clerk of the county sued; if the governmental entity is a municipality, then upon the city clerk, and if the governmental entity to be sued is a state entity as defined in Section 11-46-1(j), the service of notice of claim shall be had only upon that entity's chief executive officer) and, [i]f 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)(Every) [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 the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place

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