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Williams v. Clay County11/13/2003
days after December 17, 1999, which would have allowed the Burges to filed their claim up until March 21, 2000. After March 21, 2000, the Burges' claim was lost. While it would appear, at first glance, from the amendments to 11-46-11(3) found in the 2000 supplement, that the Burges would then have had an additional ninety days after March 21, 2000, to file the action against the school district, thereby giving them until June 19, 2000, this is not the case. Miss.Code Ann. 11-46-11(3) (Supp.2000). As well, it is not the case that the Burges could argue that the minors' savings clause under Miss.Code Ann. 11-46-11(4) (Supp.2000) would save their action here. Both of these provisions were not yet in effect at the time the action occurred on December 17, 1998.
Burge, 797 So.2d at 1064 ( 5-6).
. Presiding Judge Southwick made a good case in his concurring opinion that the statute should be viewed as giving a plaintiff up to one year to give notice of claim (rather than one year to commence actions). Once a notice is given, the government has 95-120 days to respond. After this period, or at the time the plaintiff receives a denial, the plaintiff has 90 days to file a complaint.
As can be seen, prior to 1999 the statute provided only that the one year statute of limitations was "tolled" for 95 days by the filing of notice. 1993 Miss. Laws ch. 476, 5.
To "toll" a statute of limitations is to "suspend or stop temporarily...." BLACK'S LAW DICTIONARY 1488 (6th ed.1990). Thus the one year period, whether it was interrupted after one day or after eleven months and 29 days, was suspended for 95 days and then resumed at the point that it had earlier been suspended. As a result of the 1999 change, the filing of a notice now no longer just suspended the one year statute of limitations. The one year limitations period is still said to be "tolled," but the statute then provides that the 90 day period within which to file suit begins at the end of the tolling period. True, when the statute provides that the claimant has "an additional 90 days" to file after the tolling period has run, this creates some minimal ambiguity. "Additional" to what? Is it to the entire tolling period plus the one year or just in addition to the end of the tolling period? What "additional" means is made clear by the next sentence, which provides that if the governmental entity rejects the claim in less time than the tolling period would allow, "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." The phrase "additional ninety days" surely means the same in both places. Therefore, once the 120 days has expired or once the governmental body has rejected the claim if that is sooner, the claimant has 90 days within which to file suit.
Burge, 797 So.2d at 1067-68 ( 25). Theoretically, this interpretation could also significantly shorten the one-year statute of limitations. For example, if a claimant files notice 30 days after the injury , and the government denies the claim 30 days later, the statute of limitations for such claimant would bar complaints after 150 days. In my view, that was not the intent of the Legislature when it amended Section 11-46-11.
. This Court's first impression in interpreting the 1999 amendment was in Roberts v. New Albany Separate Sch. Dist., 813 So.2d 729 ( 4) (Miss. 2002). The plaintiff sent notice of her claims to the superintendent of the school district 5 days prior to the one-year statute of limitations running, and subsequently filed her complaint 125 days later. This Court concluded that, on the facts of the case, th
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