Triple "C" Transport, Inc. v. Dickens
| Docket Number: | 2002-IA-01094-SCT | |
| Oral Argument: | 03-30-2004 | |
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| Supreme Court: | Opinion Link Opinion Date: 04-22-2004 Opinion Author: Dickinson, J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Personal injury - Tolling of statute of limitations - Failure to serve process Judge(s) Concurring: Smith, C.J., Waller and Cobb P.JJ., Carlson and Graves, JJ. Non Participating Judge(s): Diaz, J. Dissenting Author : Easley, J. Concurs in Result Only: REVERSED AND RENDERED Procedural History: Interlocutory Appeal Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 06-24-2002 Appealed from: Covington County Circuit Court Judge: Robert G. Evans Disposition: Denied motions to dismiss based upon the statute of limitations. Case Number: 99-172 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Triple "C" Transport, Inc. and Herbert Henry |
DAVID M. SESSUMS |
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| Appellee: | Richard Dickens | GRADY L. McCOOL JOSEPH E. ROBERTS, JR. EUGENE COURSEY TULLOS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Tolling of statute of limitations - Failure to serve process |
| Summary of the Facts: | In Mississippi, there exist two unrelated companies with similar “Triple ‘C’” names. One is Triple “C” Transport, Inc., owned by Clyne Buffington in New Augusta, MS. The other is Triple “C” Trucking, Inc., whose agent for process is Charles Richards, 142 West Pemble Road, Merigold, Mississippi. An accident occurred involving a car driven by Richard Dickens and a truck owned by Triple “C” Transport, Inc. The accident report lists Herbert Henry as the driver of the truck; “Triple C Trucking” as Henry’s employer, and Clyne Buffington as the owner of the truck. Following the accident, Dickens employed counsel who sent a letter to Henry and “Triple ‘C’ Trucking,” mailed to Triple “C” Transport, Inc.’s address in New Augusta. Great River Insurance Company sent Dickens’ counsel a letter acknowledging receipt of the letter. Following unsuccessful settlement discussions with Great River, Dickens filed suit naming Triple ‘C’ Trucking Company and Herbert Henry as defendants. Dickens sent the complaint and summons via certified mail, addressed to Charles Richards, 142 West Pemble Road, Merigold, Mississippi. An attorney for Triple “C” Trucking sent a letter to counsel for Dickens, stating that Triple “C” Trucking Company would be filing bankruptcy and that Herbert Henry does not drive for the corporation and Richards does not know who this person is. Dickens filed a Motion to Partially Lift the Automatic Stay in the Triple “C” Trucking bankruptcy proceeding, and the automatic stay was lifted to the extent of liability insurance coverage. After counsel for Dickens mailed, via certified mail, the summons and a copy of the complaint to Henry, Henry filed a motion to dismiss. Finally realizing that two Triple “C” companies existed and that Triple “C” Transport in New Augusta was the proper Triple “C” defendant to be sued, counsel for Dickens sent a copy of the complaint, via certified mail, addressed to Triple “C” Trucking Company, Mr. Clyne Buffington, Owner. Both defendants filed motions to dismiss which were denied. The Supreme Court granted an interlocutory appeal. |
| Summary of Opinion Analysis: | Dickens filed suit against the wrong Triple “C” defendant and allowed the statute of limitations to run before attempting to cure the error by having the complaint and summons served upon the company which should have been named as defendant in the first instance. The errors that occurred cannot be cured by equitable or fairness arguments. While Dickens can claim that he was misled by the accident report because in listed “Triple ‘C’ Trucking” as Henry’s employer, the accident report also named “Clyne Buffington” as the owner of the truck, and the address for both Buffington and Henry was listed in New Augusta. Counsel for Dickens was aware of the New Augusta addresses. In addition, counsel received a letter from the attorneys preparing a bankruptcy petition for Triple “C” Trucking Company (eighteen days before the three-year anniversary of the accident) informing him that Herbert Henry does not drive for the corporation and Richards does not know who this person is, and failed to investigate further. With regard to Henry, no explanation is offered by Dickens as to why he made no attempt to serve Henry with process at the same time he attempted service upon Triple “C” Trucking Company. Filing of a complaint tolls the applicable statute of limitations 120 days, but if the plaintiff fails to serve process on the defendant within that 120-day period, the statute of limitations automatically begins to run again when that period expires and is not tolled again unless the plaintiff refiles the complaint before the statute of limitations ends or shows good cause for failing to serve process on the defendant within that 120 day period. In this case, Dickens filed suit 84 days before the expiration of the three years. Dickens did not attempt process on Henry during the 120 days. Since process was not served on Henry as of that date, the statute of limitations began to run again, and it expired 84 days later. The record does not show that Henry has ever been properly served with process. Dickens argues that he had good cause, because Dickens and his counsel were misled by the confusing names of two Triple “C” corporations, and also by the letters from Great River Insurance Co. However, no misleading conduct attributable to others caused Dickens to improperly serve process by certified mail or to attempt to serve process upon Henry until after the statute of limitations had run. None of the facts in this case rise to the level of mitigating circumstances which would excuse Dickens’s failure to serve process prior to the expiration of the statute of limitations. |
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