Reaves ex rel. Rouse v. Randall

• Decision Date: 31 December 1998
• Docket Number: No. 97-CA-00982-SCT.,97-CA-00982-SCT.
• Citation: 729 So. 2d 1237
• Parties: Ashley Renee REAVES, a minor, By and Through her next friend and natural mother, Rebecca Lou ROUSE v. W.P. RANDALL and Greenwood Municipal Separate School District.
• Court: Mississippi Supreme Court

729 So.2d 1237

Ashley Renee REAVES, a minor, By and Through her next friend and natural mother, Rebecca Lou ROUSE v.W.P. RANDALL and Greenwood Municipal Separate School District.

No. 97-CA-00982-SCT.

Supreme Court of Mississippi.

December 31, 1998.

Rehearing Denied March 25, 1999.

Preston D. Rideout, Jr., Greenwood, Attorney for Appellant.

Richard A. Oakes, Greenwood, Attorney for Appellees.

Before SULLIVAN, P.J., and MILLS and WALLER, JJ.

MILLS, Justice, for the Court:

¶ 1The present case was considered by this Court in Ashley Renee Reeves v. W.P. Randall and Greenwood Municipal Separate School District,No. 97-CA-00982(decided December 31, 1998).After full consideration, we deny the School District's Motion for Rehearing and issue the following modified opinion.

STATEMENT OF THE CASE

¶ 2.Summary judgment was granted by the Circuit Court of Leflore County in favor of W.P. Randall and the Greenwood Municipal School District on July 21, 1997.This grant dismissed the complaint filed by Ashley Renee Reaves, by and through her mother, Rebecca Lou Rouse, on July 3, 1996.This tort claim is one governed by the Mississippi Tort Claims Act and was dismissed for failure to comply with the notice of claim requirements of the Act.The chancellor found that since the notice requirement of the Act was not met, there was no waiver of immunity by the school district and therefore no jurisdiction for the court.Absent the tolling of the one-year statute of limitations of the Mississippi Tort Claims Act by adequate notice, this claim is procedurally barred.

STATEMENT OF THE FACTS

¶ 3.The facts pertinent to the issues of notice and waiver of notice are undisputed.Ashley Renee Reaves was riding her bike toward Davis Elementary with her friend Brandon Lancaster on February 18, 1996, around 1:30 p.m.At the same time the two were approaching the school, W.P. Randall was driving a pickup truck owned by the Greenwood Public School District in the opposite direction.Lancaster apparently spotted Randall and stopped.Reaves's bike bumped into the back of Lancaster's stopped bike.Reaves then veered left and struck the truck driven by Randall.

¶ 4.On February 27, 1996, counsel for the appellant sent a letter to Dr. C.L. Stevenson, Superintendent of the Greenwood Municipal Separate School System, which read:

I have been retained by Rebecca Lou Rouse to represent her daughter, Ashley Renee Reaves, with regard to injuries and damages arising and growing out of a bicycle/motor vehicle accident which occurred on 2/18/96 at approximately 1:30 p.m. on the grounds of Davis School.It would be greatly appreciated if you would have your insurance carrier contact me regarding adjustment of this claim. /s/ Preston Davis Rideout, Jr.

On April 15, 1996, the appellant received a letter from the claims adjuster, Stuart Chisolm, for Gallagher Bassett Services, Inc., on behalf of the Greenwood Municipal Separate School District.The adjuster requested an interview with the appellant.An interview was conducted on May 15, 1996, in which Chisolm had the opportunity to interview Reaves and Rouse.Through counsel on September 27, 1996, Reaves also answered interrogatories propounded by the school district.In preparation for trial, the depositions of several witnesses were taken including Reaves, Rouse, and Lancaster.Aggrieved by the Circuit Court's grant of summary judgment, Reaves assigns as error the following issues:

I.WHETHER ANY DEFECTS IN THE STATUTORY NOTICE LETTER REQUIRED BY § 11-46-11 MISS. CODE ANN.WERE WAIVED BY THE SCHOOL DISTRICT'S INSURANCE ADJUSTER WHEN HE INVESTIGATED AND REJECTED REAVES'S CLAIM.

II.WHETHER ANY DEFECTS IN THE STATUTORY NOTICE LETTER REQUIRED BY § 11-46-11 MISS. CODE ANN.WERE WAIVED BY THE SCHOOL DISTRICT'S PARTICIPATION IN DISCOVERY OR OTHERWISE CURED BY INFORMATION PROVIDED IN DISCOVERY.

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 Through Saucier v. Biloxi Reg'l Med. Ctr.,708 So.2d 1351, 1354(Miss.1998)(citingTownsend 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.(quotingTownsend,616 So.2d at 335).

I.WHETHER ANY DEFECTS IN THE STATUTORY NOTICE LETTER REQUIRED BY § 11-46-11 MISS. CODE ANN.WERE WAIVED BY THE SCHOOL DISTRICT'S INSURANCE ADJUSTER WHEN HE INVESTIGATED AND REJECTED REAVES'S CLAIM.

II.WHETHER ANY DEFECTS IN THE STATUTORY NOTICE LETTER REQUIRED BY § 11-46-11 MISS. CODE ANN.WERE WAIVED BY THE SCHOOL DISTRICT'S PARTICIPATION IN DISCOVERY OR OTHERWISE CURED BY INFORMATION PROVIDED IN DISCOVERY.

¶ 6.Reaves admits the notice letter her counsel sent to the superintendent did not meet the requirements of the Mississippi Tort Claims Act as prescribed by Miss.Code Ann. § 11-46-11(Supp.1998).However, she asserts the deficiencies in the notice were waived by either the insurance adjuster's investigation and rejection of the claim or the participation of the appellees in discovery.Alternately, the appellant contends participation by the appellees in discovery cured any defects in notice.Randall and the school district assert that since the appellant failed to comply with the Act, its strict construction precludes waiver under the circumstances of this case.

¶ 7.The Mississippi Tort Claims Act is set out at §§ 11-46-1,et. seq. Miss.Code Ann.(Supp.1998).Section 11-46-11 states:

(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.

(3) All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after; provided, however, that the filing of a notice of claim as required by subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety-five (95) days.The limitations period provided herein shall control and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations which would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter.

§ 11-46-11 Miss.Code Ann.(Supp.1998).

¶ 8.This Court has recently held that the Act requires strict interpretation.Where invoices were submitted in lieu of a notice letter, these did not suffice to meet the notice requirement.City of Jackson v. Lumpkin,697 So.2d 1179, 1182(Miss.1997).Where a two sentence notice letter was sent to the liability insurance carrier instead of the "chief executive officer", we held that although the city did not reject the notification and answered the complaint it did not waive its defense.Carpenter v. Dawson,701 So.2d 806, 808(Miss.1997).As raised in the answer, the plaintiffs failure to comply with the statutory notice requirements was still a viable defense.Id.We also held, "The Legislature mandated that the required notice `shall' be provided, and the trial judge correctly concluded that the statute should be strictly enforced.It would set a dangerous precedent if this Court were to ignore specific statutory requirements for notice."Id.

¶ 9.The Mississippi Tort Claims Act stands in contrast to the old common law principle of sovereign immunity where an injured party was barred from recovery against a political subdivision.The Act was adopted to reduce the harsh effect of the common law.We have held that statutes such as this should be read reasonably.SeeBowen v. Flaherty,601 So.2d 860(Miss.1992).A letter of notice to the chief executive officer of the governmental entity is the only means ...