Rector v. Mississippi State Highway Com'n, s. 89-CC-829

• Decision Date: 05 August 1993
• Docket Number: 90-CA-774,Nos. 89-CC-829,s. 89-CC-829
• Citation: 623 So.2d 975
• Parties: Lorene RECTOR, wife of/and H. Ronald Rector v. MISSISSIPPI STATE HIGHWAY COMMISSION. Lorene RECTOR, wife of/and H. Ronald Rector v. BUSH CONSTRUCTION COMPANY, INC.
• Court: Mississippi Supreme Court

Page 975

623 So.2d 975

Lorene RECTOR, wife of/and H. Ronald Rector v. MISSISSIPPI STATE HIGHWAY COMMISSION.

Lorene RECTOR, wife of/and H. Ronald Rector v. BUSH CONSTRUCTION COMPANY, INC.

Nos. 89-CC-829, 90-CA-774.

Supreme Court of Mississippi.

Aug. 5, 1993.

Gregg L. Spyridon, George J. Nalley, Jr., Piper D. Griffin, Hoffman Sutterfield Ensenat & Bankston, New Orleans, for appellants.

Michael C. Moore, Atty. Gen., John B. Runnels, Asst. Atty. Gen., John L. Clay, Sp. Asst. Atty. Gen., Jackson, for appellee in No. 89-CC-829.

John B. Clark, Katherine S. Baker, Daniel Coker Horton & Bell, Jackson, for appellee in No. 90-CA-774.

Before HAWKINS, C.J., and PITTMAN and BANKS, JJ.

BANKS, Justice, for the Court:

This matter is before the Court on appeals from orders granting a motion to dismiss to the Mississippi State Highway Commission and summary judgment to Bush Construction Company in a suit arising out of an accident allegedly caused by a defective condition of a highway. We are called upon to revisit the issue of sovereign immunity and to determine the applicability of the amended statute of repose, Miss.Code Ann. Sec. 15-1-41 (1972). Finding that the issue of sovereign immunity should be determined anew in light of the recent pronouncements of this Court, and that the ten-year statute of repose, rather than the amended six year version, applies to this cause of action, we reverse and remand for further proceedings.

I

This is a civil appeal from the Circuit Court of Forrest County, Mississippi, by Lorene and Ronald Rector, husband and wife, who are appealing the granting of a Rule 12(b)(6) motion to dismiss in favor of the Mississippi State Highway Commission. The lower court held that the doctrine of sovereign immunity barred the Rectors from maintaining an action against the state entity for damages resulting from an automobile accident on Highway 49 in Forrest County.

The accident in question occurred on November 20, 1986. The Rectors filed suit against the Mississippi State Highway Department, ABC Insurance Company, and XYZ Construction Company in Forrest County Circuit Court on October 8, 1987. Mississippi State Highway Commission made a motion for a change of venue to Hinds County, which was subsequently denied. A Rule 12(b)(6) motion to dismiss was filed by the Highway Commission on December 11, 1987, and the Rectors' opposition was filed on January 1, 1988. On January 25, 1988, the Rectors amended their complaint to include Bush Construction Company. A motion to intervene was filed by Home Insurance Company on February 29, 1988, to recover workers' compensation benefits which had been paid to Mr. Rector. The trial court granted this motion. On November 9, 1988, the Highway Commission filed an answer to the amended complaint with the court. The trial court granted the Highway Commission's Rule 12(b)(6) motion on June 26, 1989, thereby dismissing the Rectors' complaint. A notice of appeal was filed with this Court on July 17, 1989. In the other proceeding against Bush Construction, Bush filed its original answer, and months later petitioned the court to amend its answer to include the affirmative defense of statute of limitations. Bush contended that it did not have access to information in its file that would have alerted them to the issue, because the file was "misplaced." The trial judge allowed this amendment, and subsequently awarded summary judgment to Bush Construction on the basis of the statute of limitations having run. The aggrieved Rectors appeal on the following issues:

I. THE MISSISSIPPI STATE HIGHWAY COMMISSION SHOULD NOT BE CLOAKED WITH SOVEREIGN IMMUNITY.

II. THE CONTRACTOR, BUSH CONSTRUCTION, SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT.

III. THE TRIAL JUDGE SHOULD HAVE APPLIED THE TEN-YEAR STATUTE OF LIMITATIONS RATHER THAN THE NEW SIX-YEAR STATUTE.

IV. BUSH CONSTRUCTION WAIVED THE AFFIRMATIVE DEFENSE OF STATUTE OF LIMITATIONS WHEN IT FAILED TO INCLUDE IT IN ITS ORIGINAL ANSWER.

II

Ronald Rector, a 39-year-old Harrison County resident, was a regional supervisor for Family Dollar Stores. On November 20, 1986, he was traveling north on Highway 49 toward Hattiesburg. In an attempt to pass another vehicle in the vicinity of Helveston Road and Camp Shelby, Rector allegedly encountered standing water on the highway, which caused his car to hydroplane off the road and into two pine trees. As a result of this accident, Rector suffered extensive head injuries, which rendered him permanently, totally disabled. The company car had a regular maintenance record and was equipped with relatively new tires.

About two weeks after the accident, an article was published in the Hattiesburg American, labeling the location of Rector's accident a "Death Stretch." The article stated that within a 27-month period between August 1984 and December 1986, five persons were killed and many others injured in similar accidents on the same stretch of Highway 49. Apparently after heavy rains, water would drain onto the highway from the shoulder, resulting in standing water. Upon receiving complaints about the condition, the Highway Commissioner's Office checked the location after heavy rains, and could not find any cases of standing water.

The Rectors claim that the Highway Commission had actual and constructive notice of the dangerous condition, and failed to correct it or even post warning signs on the highway. They sought damages in the amount of $2.2 million dollars for pain and suffering, loss of earning capacity, medical expenses, and loss of consortium. The Highway Commission asserts the doctrine of sovereign immunity, since it is an entity of the State. Rectors' suit against Bush Construction Company, originally stayed pending the resolution of the sovereign immunity question, has been consolidated with this case for purposes of appeal.

The construction was completed and accepted by the Mississippi State Highway Commission on November 15, 1979, when it executed a written release in favor of Bush Construction.

III

Here, as in Presley v. Miss. State Highway Comm., 608 So.2d 1288 (Miss.1992), the Rectors attack the manner in which the legislature responded to Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), on constitutional grounds. In Presley, supra, we held the legislative reestablishment of sovereign immunity ineffective as violative of the constitutional prohibition against reviving laws by reference. We limited the effect of the statute to "immunizing the State from claims arising thereafter to the extent that this Court would do so applying the evolving standards of common law" and provided that abolition of sovereign immunity there declared is fully retroactive for governmental entities having obtained liability insurance covering the incident in question, to the extent of such insurance. We remanded the Presley case for further consideration in light of our holding.

We reached a similar conclusion in Lee County Board of Supervisors v. Fortune, 611 So.2d 927 (Miss.1992), holding that it was appropriate that the trial court reconsider the issue of sovereign immunity in light of Presley. Additional permutations of the doctrine have been pronounced in Churchill v. Pearl River Basin Development District, 619 So.2d 900 (1993, Miss.).

It is appropriate then that we reverse the order of the trial court granting summary judgment to the highway commission and remand this matter to that court for further consideration in light of subsequent developments in the area of sovereign immunity.

IV

The trial court granted Bush summary judgment on the basis of Miss.Code Ann. Sec. 15-1-41 (1992 Supp.), the only ground asserted. ¹ That statute is of the type commonly known as a statute of repose, barring actions after a period of time beginning with an act of the alleged wrongdoer unrelated to the date of injury. See, Universal Engineering Corp. v. Perez, 451 So.2d 463 (Fla.1984). Rectors contend that Bush is procedurally barred from raising the defense, and, failing that, that the trial court erroneously interpreted the statute. The latter claim compels us to determine, for the first time, the implications of the following language in a 1985 amendment reducing the period after acceptance in which suits are allowed from ten to six years:

The provisions of this section shall only apply to causes of action accruing from and after January 1, 1986; and any cause of action accruing prior to January 1, 1986, shall be governed by [the ten-year statute].

Miss.Code Ann. Sec. 15-1-41 (1992 Supp.).

Simply put, the issue is whether the enactment of the amendment barred all actions based on injuries occurring after January 1, 1986, if acceptance of the work occurred prior to January 1, 1980, thus eliminating the then existing exposure for work accepted between January 1, 1976, and December 31, 1979.

The procedural issue arises because Bush failed to raise the statutory bar in its initial answer. That answer was filed on February 25, 1988. Its motion for leave to file an amended answer was filed on January 22, 1990, together with a motion for summary judgment. This argument should not detain us. Our rules command that "leave [to amend] should be freely given when justice so requires." Miss.R.Civ.P. 15(a). "In practice, an amendment should be denied only if the amendment would cause actual prejudice to the opposite party." Id., Comment. Rector does not assert nor does the record contain a hint of prejudice. We cannot say that the trial court abused its discretion to grant leave to file the amended complaint. See, Wright, Miller and Kane, Federal Practice and Procedure: Civ.2d Sec. 1487, pp. 629-30,...