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

• Court: Mississippi Supreme Court
• Writing for the Court: Before HAWKINS; BANKS; HAWKINS; McRAE, J., concurs in part and dissents in part with separate written opinion joined by JAMES L. ROBERTS, Jr.; McRAE; ROBERTS
• 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.
• Decision Date: 05 August 1993
• Docket Number: 90-CA-774,Nos. 89-CC-829

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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

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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

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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...