 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Williams v. Clay County11/13/2003
ne year and 210 days from November 1, 1999, the date of the accident). As her complaint was filed on January 31, 2001, Williams complaint was timely.
. "Notice provisions encourage settlement of claims prior to entering litigation, therefore conserving valuable government resources. Further, notice to the governmental entity encourages corrective actions, where necessary, prior to litigation, therefore benefitting public health and welfare." Vortice v. Fordice, 711 So. 2d 894, 896 (Miss. 1998). Adopting Presiding Judge Southwick's interpretation would be contrary to these underlying policies of the MTCA. An interpretation of the Act that causes the one-year SOL to be extinguished upon the giving of notice will discourage claimants from giving notice early. The agency being sued may be unaware of the dangerous instrumentality which caused the accident and the likelihood of future harm will increase; thus compromising the public health and welfare.
. The claimant's time limit to seek redress will be diminished if she provides notice and prolonged if she waits. The citizen who is privy to this information will receive the maximum benefit of the statutory amendment and the average citizen will not. As this Court noted in Carr :
The purpose of the notice statute being to advise the city of the accident so that it may promptly investigate the surrounding circumstances, we see no need to endorse a policy which renders the statute a trap for the unwary where such purpose has in fact been satisfied.
733 So. 2d at 263. The interpretation offered by Clay County results in such a trap and is contrary to the precedent of this Court.
. In addition, this interpretation is unfair to defendants. A claimant would have up to one year to investigate and develop her case. During this time, the defendant remains ignorant of the possibility of a claim against it. Upon filing notice, the plaintiff has only to wait a maximum of 210 days before filing suit. This creates an unfair advantage for the claimant in settlement posture and preparedness for trial. Moreover, as noted above, because the claimant is discouraged from giving prompt notice, the agency has no opportunity to mitigate the likelihood of other claims by repairing the harm-causing instrumentality.
. Thus, we conclude that Williams' claim should not have been dismissed. Williams' interpretation of the tolling provisions of the Act are more in line with the legislative purpose of the Act and the precedent of this Court. In addition, Williams has stated a claim which, if proved, would entitle her to relieve. Clay County has not demonstrated that has been prejudiced by Williams' failure to comply with every requirement of the Act. Thus, 12 (b) (6) dismissal was premature and erroneous.
II. WHETHER WILLIAMS SUFFERED A LATENT INJURY THAT EFFECTIVELY TOLLED THE STATUTE OF LIMITATIONS?
. Without waiving her substantial compliance argument, Williams asserts that, although she fell on November 1, 1999, she did not know the extent of her injury or that it would require surgery until March 2000. She argues that this ignorance was encouraged by Robinson, who assured her that her injury was not serious and that she should not go to see a doctor. Williams argues that the SOL did not begin until she discovered the injury, thus her complaint was timely filed.
. This Court has held that, despite the absence of specific discovery language, the discovery rule applies to Tort Claims Act actions involving latent injuries. See Henderson v. Un-Named Emergency Room, Madison County, 758 So. 2d 422, 427 (Miss. 2000); Barnes v. Singing River Hosp. Sys., 733 So. 2d 199, 205 (Miss. 19
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Mississippi Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|