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Williams v. Clay County11/13/2003
In a concurring opinion, joined by Chief Judge McMillin, and Judges Thomas and Lee, Presiding Judge Southwick reiterated his opinion in Burge, also a concurring opinion, that the amendment was meant to shorten, rather than extend the SOL. Reasoning that the Act's tolling provisions are not written in the normal way, Judge Southwick determined that "'it is after the toling period has expired' that the 90 days commences, not after the running of the remainder of the one year statute of limitations." Marshall, at ( 14).
. Presiding Judge Southwick found it significant that, in Roberts, this Court discussed only two time periods, to-wit, the 120 days of tolling, and then a subsequent 90 day period available for filing suit. This Court did not mention the five days of the one-year SOL that still would have remained. Judge Southwick noted that this Court held that the 1999 amendment "extended the period of time a notice of claim tolled the statute of limitations for actions brought against governmental entities under the Mississippi Tort Claims." Roberts, at 731. From this, Judge Southwick reasoned that a longer tolling period does not mean that the overall period to sue is longer. He concluded, " epending on when the notice is filed during the one year time period to file, the effect may be to reduce the total time from injury to suit. The statute made the tolling period longer, i.e., the time for the government to consider the claim was extended, but the post- tolling time period to bring suit is always the same length - 90 days." Marshall, at ( 19).
. Though susceptible to that interpretation, we do not read Roberts to imply or require that the one- year SOL is extinguished once notice is given. In this Court's opinion, the time remaining in the one-year SOL was not mentioned in Roberts because it simply was not necessary to the discussion. . Section 11-46-11 (3) states that notice of claim serves to toll the SOL. The word toll is defined as follows:
To bar, defeat, or take away . . . . o suspend or stop temporarily as the statute of limitations is tolled during the defendant's absence from the jurisdiction and during the plaintiff's minority.
Black's Law Dictionary (emphasis added). As Judge Southwick points out, the legislature has the authority to defy the dictionary so long as the new meaning is discernible, Richardson v. Canton Farm Equip., 608 So. 2d 1240, 1250-51 (Miss. 1992) (meaning of word or phrase in statute can be different than common meaning); however, it is also a familiar maxim of statutory interpretation that we must give words their literal meanings. In addition, in Mississippi Power Co. v. Jones, 369 So.2d 1381 (Miss. 1979), this Court held that " here the language used by the legislature in a statute is plain and unambiguous and conveys a clear and definite meaning there is no occasion to resort to rules of statutory interpretation." Jones, 369 So.2d at 1388.
. As mentioned by the Court of Appeals majority in Marshall, when it amended the Act, there is nothing to indicate that the legislature intended to shorten the time frame for filing suit which was provided in the previous version of the Act. Marshall at 7. Nor did it eliminate or qualify the word "toll" in the statute. There is no reason to assume that the legislature intended to change the ordinary meaning of the word toll. Nor is there reason to assume that the legislature intended to shorten the one-year SOL provided for in the Act. Indeed, 11-46-11 (3) states that the SOL it provides shall control.
. Ellisville State School v. Merrill, 732 So.2d 198 (Miss. 1999), occurred prior to 11-46-11's amendments. There, the plaintiff filed notice one day before the
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