Mitchell v. Progressive Ins. Co.


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Docket Number: 2006-CA-01542-SCT

Supreme Court: Opinion Link
Opinion Date: 09-27-2007
Opinion Author: Randolph, J.
Holding: Affirmed and Remanded

Additional Case Information: Topic: Insurance - Statute of limitations - Section 15-1-49(1) - M.R.C.P. 3(a) - Pro hac vice appearance - M.R.A.P. 46(b)(11)(I) - M.R.C.P. 11(b)
Judge(s) Concurring: Smith, C.J., Waller, P.J., Carlson, Dickinson and Lamar, JJ.; Diaz, P.J., Concurs in Part.
Concurs in Result Only: Easley and Graves, JJ.
Procedural History: Dismissal
Nature of the Case: CIVIL - INSURANCE

Trial Court: Date of Trial Judgment: 07-31-2006
Appealed from: WAYNE COUNTY CIRCUIT COURT
Judge: Robert Bailey
Disposition: Entered judgment of dismissal in favor of Progressive.
Case Number: CV-2006-22(B)

  Party Name: Attorney Name:  
Appellant: CARL MITCHELL




JEFFREY LYNN ELLIS



 

Appellee: PROGRESSIVE INSURANCE COMPANY GINNY Y. KENNEDY, CECIL MAISON HEIDELBERG  

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Topic: Insurance - Statute of limitations - Section 15-1-49(1) - M.R.C.P. 3(a) - Pro hac vice appearance - M.R.A.P. 46(b)(11)(I) - M.R.C.P. 11(b)

Summary of the Facts: Mississippi resident Carl Mitchell was involved in an automobile accident with Louisiana resident Patrick Benfatti in New Orleans. At the scene of the accident, Benfatti provided Mitchell with documentation allegedly sufficing as proof of automobile insurance. Mitchell’s attorney, Karl Wiedemann, later faxed a letter to Progressive Gulf Insurance Company stating that Benfatti was not insured at the time of the accident and asserting an uninsured motorist claim against Progressive. Mitchell attempted to file a complaint against Progressive in the Circuit Court of Wayne County. The complaint was signed by Wiedemann, a licensed Louisiana attorney, and included his office address in New Orleans and bar number. Because Wiedemann was not licensed in Mississippi, the circuit clerk refused the complaint. Mitchell filed a separate complaint against Progressive in the circuit court which was signed by Mitchell’s present attorney, Jeffrey Ellis, who is licensed to practice in Mississippi. Progressive filed a motion to Dismiss which the court granted. Mitchell appeals.

Summary of Opinion Analysis: The circuit court held that Mitchell’s second complaint was filed beyond the statute of limitations and was therefore time barred. Mitchell argues that Progressive had notice of his claim before any statute of limitations expired which is the purpose of M.R.C.P. 3(a) and as such, he should be allowed to continue with his claims against Progressive. A cause of action against an insurer for uninsured motorist benefits is an action on contract. As such, the three-year statute of limitations as prescribed by section 15-1-49(1) applies. Both parties agree this cause of action accrued on January 16, 2003. Mitchell was required to file a complaint, in compliance with M.R.C.P. 3(a), on or before expiration of the three-year statute of limitations. No dispute exists that Mitchell attempted to file a complaint in the circuit court on December 5, 2005. Pursuant to M.R.A.P. 46(b)(11)(I) and M.R.C.P. 11(b), the December 5, 2005, complaint was properly refused by the circuit clerk and stricken from the record. Mitchell has presented no evidence that Wiedemann was licensed in Mississippi or had complied with any rule allowing a pro hac vice appearance. As the subsequent complaint was not filed until February 14, 2006, after the statute of limitations expired, the circuit court was correct in dismissing Mitchell’s claim with prejudice. Mitchell argues that equitable estoppel should be applied to prevent Progressive from asserting the defense of statute of limitations. Equitable estoppel exists where there is a belief and reliance on some representation; a change of position as a result thereof; and detriment or prejudice caused by the change of position. Additionally, inequitable or fraudulent conduct must be established to estop a party from asserting a statute of limitations defense. No evidence was submitted by Mitchell that Progressive engaged in inequitable or fraudulent conduct toward Mitchell. This case is remanded to the circuit court with instructions to notify the Louisiana State Bar of Wiedemann’s unauthorized activity and for imposition of such other sanctions as the trial court deems proper due to the violations of M.R.C.P. 11 and M.R.A.P. 46.


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