Miss. State Supreme Court bans one of its own from dissent

The Jenkins opinion also relied on Lee v. Thompson, 859 So. 2d 981 (Miss. 2003), Wells v. Radiator Specialty Co., 413 F. Supp.2d 778 (S.D. Miss. 2006), and Beck v. Koppers, Inc., 2005 U.S. Dist. LEXIS 26613 (N.D. Miss. 2005).  Yet again, these opinions do not hold that the statute of limitations for wrongful death actions begins to run on the date of the wrongful act.  In Lee, the death and the underlying tort occurred on the same date, so there was no question as to when the limitations period began to run.  859 So. 2d at 982-83.  This Court simply held that because the underlying tort was murder, the one-year limitations period for intentional torts would apply.  Id. at 990. 

As for the federal cases, Wells and Beck, the district courts were examining the issue of the discovery rule as it applied to latent injury or disease.  Wells, 413 F. Supp.2d 778; Beck, 2005 U.S. Dist. LEXIS 26613.  Neither case stands for the proposition that the statute of limitations for wrongful death begins to run on the date of the alleged wrongful conduct.  Jenkins reliance on these cases is even more peculiar in light of the fact that each came to opposite conclusions – Wells held that the statute of limitations begins to run on the date of discovery of the injury, while Beck held that the statute of limitations begins to run on the date of discovery of the injury and its cause.  Wells, 413 F. Supp.2d 782-83 (interpreting Owens-Illinois, Inc. v. Edwards, 573 So. 2d 704 (Miss. 1990)); Beck, 2005 U.S. Dist. LEXIS 26613 at *4 (interpreting same). 

Moreover, on the same day that Jenkins was decided, this Court issues Proli v. Hathorn, 928 So. 2d 169 (Miss. 2006), which unmistakably found that the statute of limitations for a wrongful death action began to run on the date of death and not from the date of injury.  In Proli, the patient was injured on May 2, 2002, but did not die until May 18, 2002.  Id. at 170.  This Court plainly stated, "[h]ere, the statute of limitations began to run on May 18, 2002."  Id. at 175. 

For these reasons, Jenkins was wrongly decided and this Court's holding in Gentry should be reinstated.  As Gentry stated, "it is elementary that the 'right to sue' did not and could not have vested until [the decedent] died.  Our wrongful death statute provides a cause of action to the survivors of those who die as a result of wrongful conduct.  A person cannot qualify as a 'survivor' until he survives someone." 606 So. 2d at 1121. 1  To hold otherwise would mean that the statute of limitations for a wrongful death action could expire before death.  Such a result is unfair, illogical, and contrary to the vast majority of jurisdictions which hold that the limitations period cannot begin to run until death.  See M.C. Dransfield, Annotation, Time from which Statute of Limitations Begins to Run Against Cause o Action for Wrongful Death, 97 A.L.R. 2d 1151 ("The great majority of the cases have taken the view that the date of death is controlling."). 2 

In addition, as recently as November 2007, this Court relied on Gentry for the proposition that "in a wrongful death case the cause of action does not accrue until the death of the negligently injured person."  Bullock v. Lott, 964 So. 2d 1119, 1126 (Miss. 2007) (internal quotations and citations omitted).  Bullock remarked in a footnote that Gentry had been overruled, and the case was being cited for the distinction between "accrue" and "occur."  However, it would be inconsistent to hold that a wrongful death action accrues for statute of limitations purposes when the injury occurs, but accrues for venue purposes upon death.  In Burgess v. Lucky, 674 So. 2d 506, 511-512 (Miss. 1996), another case relied upon by Bullock, this Court specifically refused to accept such a distinction. 3 

For these reasons, the Court must reinstate Gentry.  This case would provide that opportunity, but the Court has refused.