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Williams v. Clay County11/13/2003
and for related purposes." The following is the pertinent text of the statute after modification, with the additional text underlined, as follows:
(3) All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after; provided, however, that the filing of a notice of claim as required by subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety-five (95) days from the date the chief executive officer of the state agency receives the notice of claim, or for one hundred twenty (120) days from the date the chief executive officer or other statutorily designated official of a municipality, county or other political subdivision receives the notice of claim, during which time no action may be maintained by the claimant unless the claimant has received a notice of denial of claim. After the tolling period has expired, the claimant shall then have an additional ninety (90) days to file any action against the governmental entity served with proper claim notice. However, should the governmental entity deny any such claim, then the additional ninety (90) days during which the claimant may file an action shall begin to run upon the claimant's receipt of notice of denial of claim from the governmental entity. All notices of denial of claim shall be served by governmental entities upon claimants by certified mail, return receipt requested, only. For purposes of determining the running of limitations periods under this chapter, service of any notice of claim or denial of notice of claim shall be effective upon delivery by the methods statutorily designated in this chapter. The limitations period provided herein shall control and shall be exclusive in all actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations which would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter.
Miss. Code Ann. 11-46-11 (1999) (emphasis added). Prior to the 1999 amendments, "filing the notice tolled the statute of limitations for ninety-five days, and generally resulted in an action being timely filed so long as the required notice was given, and the action was filed no later than one year plus ninety-five days after it arose." Marshall v. Warren County Bd. of Supervisors, 831 So.2d 1211, 1212 (Miss. Ct. App. 2002). See also Burge v. Richton Mun. Separate Sch. Dist., 797 So.2d 1062, 1063-64 (Miss. Ct. App. 2001).
. When the Court of Appeals decided the Burge case, the 1999 amendment to the statute had been passed, but the pre-1999 statute was applied. Although dicta, the court discussed the ramifications of the 1999 modification and said that the tolling period of 95 days would increase the statute of limitations from one year to one year and 95 days, and if proper notice had been given, an additional 90 days would have been added:
The action in this case accrued on December 17, 1998, the day that Lea walked onto school grounds and removed her daughter without a court order. The one-year statute of limitations in which to file a claim against the school district for its negligence would have run on December 17, 1999. However, it is undisputed that a notice of claim was timely and properly filed by the Burges according to Miss.Code Ann. 11-46- 11(1) (Supp.2000). Therefore, the statute of limitations on this action would be tolled for ninety-five
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