Page v. Univ. of Southern Miss.
| Docket Number: | 2003-CA-00939-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 07-29-2004 Opinion Author: Carlson, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Personal injury - Tort Claims Act - Statute of limitations - Section 11-46-11 Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Graves and Dickinson, JJ. Non Participating Judge(s): Diaz and Randolph, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 04-11-2003 Appealed from: Forrest County Circuit Court Judge: Robert Helfrich Disposition: Granted the University's motion to dismiss. Case Number: CI02-0254 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Steven Page |
DANA HELENE EVANS
JESSIE L. EVANS |
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| Appellee: | The University of Southern Mississippi; J. Yarbrough and S. Ray, Individually and in Their Official Capacity as Police Officers of The University of Southern Mississippi | RICHARD D. NORTON LEE PARTEE GORE |
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| Topic: | Personal injury - Tort Claims Act - Statute of limitations - Section 11-46-11 |
| Summary of the Facts: | Steven Page filed suit under the Tort Claims Act against the University of Southern Mississippi and Jay Yarbrough and Sammy Ray, individually and in their official capacities as police officers of the University of Southern Mississippi, to recover damages caused when the two officers stopped Page while he was jogging on campus. The court granted the defendants' motion to dismiss, and Page appeals. |
| Summary of Opinion Analysis: | The court held that Page's suit was time barred. Present case law interpreting section 11-46-11 is admittedly ambiguous. In Williams v. Clay County, 861 So. 2d 953 (Miss. 2003), the Court held that the tolling period was conditional upon how early or how late the claimant served notice upon the agency. This interpretation is contrary to the literal reading of the statute and other decisions and is overruled. A literal interpretation of section 11-46-11 gives a party the right to at least 365 days to file a lawsuit against a state agency, county, municipality or other political subdivision. If the action is against a state agency, the statute of limitations will be tolled for 95 days; however, if the action is against a county, municipality or other political subdivision, the statute of limitations will be tolled for 120 days. Once notice is received, the one-year statute of limitations is tolled for up to 95 or 120 days, depending upon the agency. After the tolling period has passed, the running of the statute resumes. The Supreme Court has previously failed to use the term "tolling" in this way and has incorrectly viewed the 95 or 120 day period as merely a break in the action when nothing may be filed until the State responds to the notice. After the tolling period has expired, the claimant shall then have an additional 90 days to file any action which is in addition to the balance of the 365 days not used as of the date when notice was given. Once the claim is denied, the tolling period ends immediately, and the additional 90 days is added to the remaining time left in the original one year period not used at the time notice was received. The claimant would not receive the benefit of the full 95 day or 120 day tolling period if the agency denies the claim prior to the expiration of the tolling period. Here, the actionable conduct occurred on June 26, 2001. Notice was given on December 28, 2001, and received on January 3, 2002, 191 days after the cause of action accrued. Because this claim is against a state agency, the statute was tolled for 95 days, and the tolling period expired on April 8, 2002. After the tolling period ended, the claimant had 174 days left in the original one-year statute (365 days minus 191 days). Adding the additional 90 days to file suit, the action would have had to have been filed by December 28, 2002. Suit was filed on September 16, 2002, which was clearly within the statutorily allotted amount of time. Therefore, the case is reversed and remanded. |
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