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Curry v. Turner12/12/2002
ux held that the minors savings clause tolls the statute of limitations in wrongful death cases. Yet since we have previously declined to overrule Arender, the circuit court and the majority are permitting the rights of the minors to be circumvented. The minors are being stripped of their constitutional right to due process of law; and their right to a remedy is being extinguished. Id. at 1042- 43. The opportunity is here, yet again, to overrule Arender. Instead, the chance to protect the rights of minors and to guide litigants is shrugged off. Additionally, the majority overlooks the alternative measure available to the minors, M.R.A.P. 4(f), which gives the minors an additional two years in which to exercise their rights.
. Accordingly, I dissent.
DIAZ, J., JOINS THIS OPINION.
DIAZ, JUSTICE, DISSENTING:
. The majority finds that the minor's savings statute does not operate to toll the statute of limitations because the wrongful death statute allows only one suit per deceased. I disagree and respectfully dissent.
. I would find that the minors savings clause protects a minor's rights under the wrongful death statute regardless of whether a party who is not under a disability brings suit. As pointed out by Justice McRae in his specially concurring opnion in Thiroux v. Austin, 740 So.2d 1040, 1042 (Miss. 1999), courts should act as the superior guardian for all persons under disability. (citing Miss. State Bar Ass'n v. Moyo, 525 So.2d 1289 (Miss. 1988)). A minor should be able to seek a remedy when he or she has the capacity to do so.
. Here, the administratrix of Everette Curry's estate brought suit on behalf of Everette's heirs, including his two minor children. The majority correctly states that we have yet to address the effect of the wrongful death statute's requirement that there be only one suit for recovery in a situation such as this.
. In Thiroux, suit was not brought on behalf of the minors until the statute of limitations had run. Here, the suit was brought, but certain defendants were not named in the complaint and the statute of limitations ran. Yes, a suit was brought and yes, the wrongful death statute says that there shall be only one suit. However, I cannot reconcile our law that courts act as superior guardians of children with this harsh result of cutting off these children's right to seek their own remedy. As we allowed the statute of limitation to be tolled in a case where no suit was brought for the benefit of the children, so should we allow the statute of limitations to be tolled in a case where a suit was brought and mishandled. Allowing the statute of limitations to act as a bar in this case will produce the same result as it would have in Thiroux; it would eradicate the children's chance at obtaining a remedy while they have no choice, no ability to look after their own welfare. I believe we should continue down the same path we started in Thiroux and make the rights of minors, who are incapable of seeking their own remedy, more important than the convenience of the wrongful death defendant. Therefore, I would reverse and remand for further proceedings.
McRAE, P.J. AND GRAVES, J., JOIN THIS OPINION.
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