Marshall v. Kan. City Southern Ry. Co.


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Docket Number: 2006-CA-00519-COA
Linked Case(s): 2006-CA-00519-COA2006-CT-00519-SCT2006-CT-00519-SCT2006-CT-00519-SCT
Oral Argument: 07-18-2007
 

 

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Court of Appeals: Opinion Link
Opinion Date: 11-06-2007
Opinion Author: CARLTON
Holding: Affirmed

Additional Case Information: Topic: Wrongful death - Statute of limitations - Section 15-1-49(1) - Savings statute - Section 15-1-69 - Voluntary dismissal - M.R.C.P. 41(a)(2)
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE AND ROBERTS, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.
Non Participating Judge(s): Barnes, J.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - WRONGFUL DEATH

Trial Court: Date of Trial Judgment: 01-10-2006
Appealed from: SCOTT COUNTY CIRCUIT COURT
Judge: Marcus D. Gordon
Disposition: ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS OR IN THE ALTERNATIVE
Case Number: 2004-CV-312-SC-G

Note: Miss SCT reversed and remanded the COA judgment. See SCT opinion at: http://www.mssc.state.ms.us/Images/Opinions/CO54589.pdf

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Merlean Marshall, Alphonzo Marshall and Eric Shepard, Individually and on Behalf of All Wrongful Death Beneficiaries of Lucy Shepard, Deceased




JAMES W. CRAIG HERBERT LEE



 
  • Supplemental Brief

  • Appellee: Kansas City Southern Railways Company, Eric W. Robinson, The Estate of Robert Everett and C.L. Duett CHARLES EDWIN ROSS CHARLES HENRY RUSSELL BENJAMIN NOAH PHILLEY  

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    Topic: Wrongful death - Statute of limitations - Section 15-1-49(1) - Savings statute - Section 15-1-69 - Voluntary dismissal - M.R.C.P. 41(a)(2)

    Summary of the Facts: Lucy Shepard died in a Scott County railroad crossing accident when the vehicle in which she was driving collided with a freight train owned and operated by the Kansas City Southern Railways Company. Phyllis McKee, a passenger in the automobile driven by Shepard, survived but sustained injuries in the accident. Merlean Marshall, Alphonzo Marshall, and Eric Shepard, individually and on behalf of all the wrongful death beneficiaries of Shepard, filed two wrongful death suits in the Circuit Court of Scott County. The first was removed to federal court where it was voluntarily dismissed without prejudice. Upon motion of the railway company, the circuit court dismissed the beneficiaries’ second action as barred by the statute of limitations. The beneficiaries appeal.

    Summary of Opinion Analysis: The beneficiaries’ action was subject to the three-year statute of limitations found in section 15-1-49(1). The first action was filed in state court on July 20, 1998, ten days after the cause of action arose. Thus, absent tolling or saving, the statute of limitations expired on July 20, 2001. The instant action was filed in state court on August 16, 2004, well outside of the three-year statute of limitations. The beneficiaries argue that their second action is not time-barred because they had an additional year from the dismissal of their first action in which to re-file their action. The savings statute is section 15-1-69. It is beyond dispute that the first lawsuit was timely commenced and that the instant case is for the same cause of action. The question is whether a voluntary dismissal without prejudice falls within the statutory language that “the writ shall be abated, or the action otherwise avoided or defeated . . . For any matter of form.” The Supreme Court has held that a voluntary nonsuit without prejudice, although a failure otherwise than on the merits, is not a dismissal “as a matter of form” under section 15-1-69. Because a voluntary nonsuit is substantially similar to an M.R.C.P. 41(a)(2) voluntary dismissal, the voluntary dismissal of the first action does not invoke the protection of the savings statute. The beneficiaries argue that section 15-1-57 excepted from the period of limitations the time during which their first action was pending in federal court. Because they did not assert this claim in the proceedings below, the claim is barred from review.


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