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Williams v. Clay County11/13/2003
the claimant was not barred by the statute of limitations when she brought suit. Roberts was injured on August 8, 1998, gave a notice of claim on August 3, 1999, and filed suit on December 6, 1999. The complaint was dismissed as untimely. On appeal, we reversed and remanded, stating that she gave notice of her claim within the one-year statute of limitations, which tolled the statute of limitations for 120 days. She was then given a 90-day period to file the suit, which she filed within. It is clear that Marshall and Roberts do not allow for Clay County's interpretation of the Act.
. Williams interprets the statute of limitations as tolling for 120 days then resuming the counting of the one-year statute of limitations, thus giving her 485 days to file her suit from the time of her injury . She argues that once notice was given on November 15, 1999, the statute stopped running for 120 days, then resumed, barring all claims after February 28, 2001. Through this interpretation, it is arguable that a claimant has an additional 90 days after the 120 day tolling period if the governmental entity does not deny the claim within the 120 day tolling period. The result would be that a claimant has one year plus two hundred and ten days to file his or her action, or 575 days. We disagree because:
ny suggestion that a claimant has one year plus 95 (or 120) days plus 90 days must overcome both the natural reading of the overall statute and the specific interpretation barrier that "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.
Burge v. Richton Mun. Separate Sch. Dist., 797 So. 2d 1062, 1068 (Miss. Ct. App. 2001) (Southwick, P.J., concurring).
. Marshall 's interpretation of Roberts is correct. In Roberts, the plaintiff was given the full 120- day tolling period because notice was given within the final 120 days of the limitation period, whereas Marshall gave notice outside the final 120-day period of the limitations period. In Moore v. Memorial Hospital of Gulfport, 825 So. 2d 658, 666-67 (Miss. 2002), we stated that Moore's complaint was timely. The cause of action accrued on August 31, 1998. Suit was filed on December 31, 1998, and was voluntarily dismissed on May 20, 1999. Moore gave statutory notice on June 9, 1999, which was within the last 120 days of the statute of limitations. Moore then had 120 days from the date of the notice to file her complaint.
. Here, the accident occurred on November 1, 1999, and notice was given on November 15, 1999. The 120-day tolling period expired within the one-year statute of limitations. Williams was then entitled to a minimum of 90 days to file an action after the 120-day tolling period, which also expired before the one-year statute of limitations. When November 1, 2000, passed, so did the time for filing Williams's action.
II. WHETHER WILLIAMS SUFFERED A LATENT INJURY WHICH WOULD TOLL THE STATUTE OF LIMITATIONS.
. Williams argues that she did not know the extent of her injury or that it would require surgery until March 2000, thereby extending the statute of limitations to March 2001. Thus, Williams's second notice of claim filed on February 2, 2001, was timely. This Court has held that the discovery rule applies to Tort Claims Act actions involving latent injuries. Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 204 (Miss. 1999).
. We defined the date of accrual of a personal injury action relative to the type of injury sustained in a case applying the Federal Employers' Liability Act's three-year statute of limitations:
In c
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