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

PRESIDING JUSTICE [REPEATS CAPTION OF CASE] 

DIAZ, PRESIDING JUSTICE, DISSENTING: 

This Court granted the Mississippi Veterans Affairs Board's (MSVAB) interlocutory appeal from the denial of its motion for summary judgment.  The following issues were before the Court: (1) whether the plaintiff's claims were bared by the statute of limitations; (2) whether the plaintiff failed to include the required certificate of expert consultation; and (3) whether the defendant could be held liable for the actions of its independent contractors.  Twenty-five days before the deadline for this Court to render an opinion, the majority of its members have decided to dismiss the case as improvidently granted. 

Notwithstanding the other issues which are without merit, I am compelled to address this Court's decisions which hold that the statute of limitations for wrongful death actions begins to run at the tie of the injury, not on the date of death.  The obvious result is that a wrongful death action may expire before the decedent does.  This judicially created rule is without foundation, and frankly, absurd. 

Mississippi's wrongful death statute reads, in pertinent part: Whenever the death of any person ... shall be cause by any real, wrongful or negligent act or omission ... as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof ... [t]he action for such damages may be brought in the name of the personal representative of the decease person or unborn quick child for the benefit of all persons entitled under the law to recover ... and there shall be but one (1) suit for the same death which shall ensue for the benefit of the parties concerned ... in such action the party or parties suing shall recover such damages allowable by law as the jury may determine to be just, taking into consideration all the damages of every kind to the decedent and all damages of every kind to any and all parties interested in the suit. Miss. Code Ann. § 11-7-13. 

Because this statute does not contain a statute of limitations, this Court has held that a wrongful death action "is limited by the statute of limitations applicable to the tort resulting in the wrongful death."  Thiroux v. Austin, 749 So.2d 1040, 1042 (Miss. 1999).  For example, if the wrongful death were caused by an assault, the one-year statute of limitations in Section 15-1-49 would govern.  Id.  

In the present case, the parties agree that the one-year statute of limitations provided in Mississippi Code Section 11-46-11 is the applicable time period.  However, the parties disagree as to when this limitations period began to run.  The MSVAB argues that the statute of limitations for the plaintiff's wrongful death claim began to run, at the latest, on the date of decedent's transfer to the hospital (August 8, 2001) and not the date of his death (October 4, 2001).  It contends that the one year statute of limitations under the Mississippi Tort Claims Act expired on August 8, 2002, two months before Beverly Kraft served her notice of claim letter.  Kraft counters that the statute of limitations for wrongful death cannot begin to run until death. 

The MSVAB's argument rests on Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923, 926 (Miss. 2006), which held that a wrongful death claim begins to run on the date of the wrongful act or acts which lead to the wrongful death.  Jenkins specifically overruled Gentry v. Wallace, 606 So. 2d 1117 (Miss. 1992), which held that the limitations period for a wrongful death action begins to run on the date of death or when the heirs knew or should have reasonably known about the negligence which caused the death.  Jenkins was written by Justice Dickinson and joined by Chief Justice Smith, Presiding Justice Waller, and Justices Easley and Carlson.  Presiding Justice Cobb, and Justices Diaz, Graves, and Randolph did not participate in the opinion.  933 So. 2d 923. 

Kraft argues that Jenkins was wrongly decided because the cases on which the opinion relies do not support its holding.  I absolutely agree.  While Jenkins was correct in holding that "the statute of limitations on bringing a wrongful death claim is subject to, and limited by, the statute of limitations associated with the claims of specific wrongful acts which allegedly led to the wrongful death," none of the cases it cites support the proposition that the statute of limitations begins to run at the time of the wrongful acts.  Id. at 926 (emphasis supplied) 

The opinion first notes that Gentry held the statute of limitations begins to run on the date of death, but states that "the issue was decided differently in Thiroux v. Austin, 749 So. 2d 1040 (Miss. 1999)."  Id.  As Kraft points out in her brief, this is an inaccurate statement.  In Thiroux, the Court simply held that because the wrongful death statute does not contain a statute of limitations, the limitations period is governed by that of the underlying tort.  749 So. 2d at 1042.  It did not hold, as Jenkins erroneously concluded, that the statute of limitations begins to run at the time of the underlying tort.  Thus, contrary to Jenkins' assertion, the holdings in Thiroux and Gentry were consistent and there was no need to overrule Gentry.