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LeBlanc v. Allstate Insurance Company3/7/2002
DATE OF JUDGMENT: 4/13/2001
TRIAL JUDGE: HON. JOHN M. MONTGOMERY
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED AS MODIFIED - 03/07/2002
. This is an appeal taken from Lowndes County Circuit Court's final judgment of April 13, 2001, which dismissed this civil action with prejudice because Linda LeBlanc ("LeBlanc") failed to served a complaint and summons on Allstate Insurance Company ("Allstate") within 120 days under Rule 4 (h) of the Mississippi Rules of Civil Procedure. The trial court further found that LeBlanc failed to demonstrate "good cause" for failure to serve in order to justify any extension of time to effect service.
. LeBlanc filed her complaint against the Estate of Joseph M. Connor ("Connor"), George M. Ouzts ("Ouzts") and Allstate on September 29, 1999. Process was not issued as to Allstate until August 22, 2000. Allstate was served with process on August 23, 2000.
. On February 12, 2001, the trial court conducted a hearing on Allstate's motion to dismiss for lack of process within 120 days. LeBlanc's attorneys alleged that she received severe injuries from the automobile accident on September 29, 1996, which affected her memory and thought process, thereby limiting her ability to cooperate with her attorneys in handling her case. She alleged that her ex-husband (the presumed policy holder) and his insurance agent would not cooperate with LeBlanc's attorneys in providing information as to possible uninsured motorists coverage with Allstate.
. The trial court, citing Bang v. Pittman, 749 So.2d 47 (Miss. 1999) and Rains v. Gardner, 731 So.2d 1192, 1197 (Miss. 1999), granted the motion to dismiss Allstate with prejudice. FACTS
. On September 29, 1999, LeBlanc filed a complaint in the Lowndes County Circuit Court naming Connor, Ouzts and Allstate as party defendants to the lawsuit. On September 29, 1996, LeBlanc was a passenger in a motor vehicle operated by Connor. The vehicle was involved in a collision with a motor vehicle operated by Ouzts. LeBlanc's complaint alleged the following facts:
1. On September 29, 1996, LeBlanc was a passenger in a motor vehicle operated by Connor. At said time, said vehicle was involved in a collision with a motor vehicle operated by Ouzts;
2. As a result of said collision, LeBlanc incurred and will continue to incur medical expenses and lost wages, endured and will continue to endure pain and suffering and has sustained a permanent disability;
3. Said Connor and Ouzts maintained a liability insurance policy the limits of which are insufficient to pay the damages which LeBlanc has sustained as a result of said collision. Alternatively, said Connor and Ouzts maintained no liability insurance policy through which the damages LeBlanc will be paid;
4. LeBlanc maintained a policy of insurance which provided uninsured motorist coverage with Allstate under the terms of which the damages sustained by LeBlanc should be paid;
5. LeBlanc sought a judgment from Connor and Ouzts in the sum of $1,5000,000.00 and additionally, LeBlanc sought a judgment from Allstate for the amount of policy limits.
. According to the record, LeBlanc never asked the circuit clerk to issue a summons for Allstate before September 22, 2000. Allstate was served on September 23, 2000, almost eleven months after the complaint was filed on September 29, 1999.
. On appeal, LeBlanc raises the following issue: I. Whether the trial court erred in dismissing the complaint against Allstate pursuant to Rule 4(
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