Kinsey, et al. v. Pangborn Corp., et al.
| Docket Number: | 2010-CA-00925-SCT Linked Case(s): 2010-CA-00925-SCT |
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| Oral Argument: | 08-08-2011 | |
* This video is best viewed in the most current version of Google Chrome, Internet Explorer with Windows Media Player plug-in, or Safari (Mac Users). |
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| Supreme Court: | Opinion Link Opinion Date: 11-03-2011 Opinion Author: Randolph, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Wrongful death - Section 11-7-13 - Survival claims - Statute of limitations - Section 15-1-49(1) - Waiver Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Lamar, Kitchens, Chandler, Pierce and King, JJ. Procedural History: Dismissal Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 05-17-2010 Appealed from: Harrison County Circuit Court Judge: Roger T. Clark Disposition: Dismissed the action as barred by the statute of limitations. Case Number: A2401-07-151 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Diana Kinsey, on Behalf of the Wrongful Death Beneficiaries of Ted Watkins, Deceased |
JOHN TIMOTHY GIVENS
TIMOTHY W. PORTER
PATRICK C. MALOUF
ROBERT ALLEN SMITH, JR. |
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| Appellee: | Pangborn Corporation; Ash Grove Cement Company; Precision Packaging, Inc.; Clark Sand Company, Inc.; Clemco Industries Corporation; Hanson Aggregates, Inc.; Humble Sand & Gravel, Inc.; Parmelee Industries, Inc.; Southern Silica of Louisiana, Inc.; Mine Safety Appliances Company (MSA); Empire Abrasive Equipment Corporation; Pearl Sands, Inc.; Pearl Specialty Sands, Inc.; Specialty Sand Company; Bob Schmidt, Inc.; Schmidt Manufacturing, Inc.; Lone Star Industries, Inc.; and American Optical Corporation | JENNIFER JONES SKIPPER FRED KRUTZ, III EDWIN S. GAULT, JR. MATTHEW ROBERT DOWD CHARLES R. WILBANKS, JR. KATHARINE MCKEE SURKIN RONALD G. PERESICH W. MARK EDWARDS RANDI PERESICH MUELLER GEORGE MARTIN STREET, JR. W. WRIGHT HILL, JR. JEFFREY PIERCE FULTZ HAL LORING ROACH, JR. KIMBERLY PAIGE MANGUM DAVID A. BARFIELD WALTER T. JOHNSON JOSEPH GEORGE BALADI ROBERT B. IRELAND, III WADE G. MANOR JAMES SCOTT ROGERS CLYDE LAVEL NICHOLS, III |
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| Topic: | Wrongful death - Section 11-7-13 - Survival claims - Statute of limitations - Section 15-1-49(1) - Waiver |
| Summary of the Facts: | The “Last Will and Testament” of Ted Watkins named his ex-stepdaughter, Diana Kinsey, to serve as the executrix of his estate and “will[ed], devis[ed], . . . and bequeath[ed] all of [his] property” to her. Following Watkins’s death, Kinsey was formally appointed executrix of Watkins’s estate. In May 2004, Watkins’s estate was closed and Kinsey was discharged as executrix. In April 2007, Kinsey filed a wrongful-death action against various silica-related entities. Various defendants filed their Answers and Defenses. These pleadings contended that the claims asserted by Kinsey were barred by applicable statutes of limitations and that Kinsey lacked standing to commence a wrongful-death action. The various defendants filed motions for summary judgment. The circuit court entered summary judgment, dismissing all defendants with prejudice. Kinsey appeals. |
| Summary of Opinion Analysis: | On October 4, 2002, Watkins was diagnosed with silicosis. On December 26, 2002, a mass-tort, personal-injury suit against various silica-related entities, styled Rudolph Spencer, et al. v. Pulmosan Safety Equipment, et al., was filed in the Circuit Court of Humphreys County. Among the twenty-five listed plaintiffs was “Ted Walkins [sic], . . . an adult resident citizen of Mississippi.” Watkins died on July 28, 2003. On October 29, 2003, an “Amended Complaint” was filed in Spencer in which “Ted Walkins [sic], . . . an adult resident of Mississippi” remained among the listed plaintiffs. No suggestion of death was made and no wrongful-death claims were asserted. Thereafter, Spencer was removed to the United States District Court for the Southern District of Texas. Kinsey, as the executrix of Watkins’s estate, never moved to be substituted as a real party in interest in Spencer. The federal court entered an Order remanding Spencer to the Circuit Court of Humphreys County due to lack of subject-matter jurisdiction. On January 30, 2006, the Circuit Court of Humphreys County entered an “Agreed Order of Dismissal Without Prejudice” in Spencer. On April 27, 2006, the Circuit Court of Humphreys County entered an “Agreed Order of Dismissal Without Prejudice” in Spencer as to all claims against “each and every” remaining defendant. On April 27, 2007, Kinsey first filed a wrongful-death action in the circuit court. Section 11-7-13, Mississippi’s wrongful-death statute, encompasses all claims – including survival claims which could have been brought by the decedent, wrongful-death claims, estate claims, and other claims – resulting from a tort which proximately caused a death. Section 11-7-13 requires that all such claims be brought in one suit. A review of Kinsey’s April 2007 Complaint shows that only “survival-type” claims are presented. In the Complaint, Kinsey failed to state her relationship to Watkins, to reveal that she had been the executrix of Watkins’s estate, or to name Watkins’s estate as a plaintiff. In Answers and Defenses, the defendants raised the affirmative defense of the statute of limitations. Following the “Agreed Initial Discovery Order,” Kinsey failed to respond to the Master Set when due, failed to respond to subsequent letter requests of the defendants, failed to respond to the defendants’ “Motions to Compel,” and responded only after the circuit court entered an “Order Compelling Discovery Responses.” Within two months after receipt of the compelled responses, each defendant either filed or joined in a motion for summary judgment. Ordinarily, there must be a substantial and unreasonable delay in pursuing the right, coupled with active participation in the litigation process, before waiver will be found. The Complaint was insufficient to decipher Kinsey’s status in relation to Watkins. The only significant delay was caused by Kinsey failing to provide timely responses to discovery. When Kinsey finally responded, following the circuit court’s “Order Compelling Discovery Responses,” the defendants pursued this affirmative defense forthwith. Thus, the defendants did not waive their statute-of-limitations defense. The applicable statute of limitations, section 15-1-49(1), provides that all actions for which no other period of limitation is prescribed shall be commenced within three years next after the cause of such action accrued, and not after. But in a wrongful-death suit, where multiple claims must be brought in one suit, if death is not an immediate result of the tort, the limitation periods for the various kinds of claims may not begin to run at the same time. For instance, Watkins’s “survival-type” claims actually accrued on the date of discovery of the injury. The “survival-type” claims accrued upon Watkins’s diagnosis with silicosis on October 4, 2002. Any “wrongful-death” claims accrued, at the latest, on the date of Watkins’s death on July 28, 2003. Therefore, in the absence of tolling, the statute of limitations for “survival-type” claims ran on October 4, 2005 (and for “wrongful-death” claims, on July 28, 2006). Kinsey’s Complaint was not filed by Kinsey as the executrix of Watkins’s estate. The present suit was a new and independent wrongful-death action to which section 15-1-69 does not apply. Therefore, this wrongful-death suit is barred by the statute-of-limitations. |
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