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Estate of Spiegel v. Western Surety Co.8/9/2005
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DISCUSSION
Applicability of the Mississippi Tort Claims Act
. The first argument we must discuss involves the applicability of the Mississippi Tort Claims Act. We note at the outset that the appellees are correct in arguing that this action properly should have been brought under the Mississippi Tort Claims Act, at least insofar as the action states a claim of negligence against the current and former circuit clerks. This is so because Spiegel's complaint alleges that two of the named defendants are governmental officials (e.g., the circuit clerk and the former circuit clerk) who, acting in their official capacity, were negligent and/or failed to properly perform their duties. Miss. Code Ann. § 11-46-1 to § 11-46-23 (Rev. 2002); Young v. Benson, 828 So. 2d 821, 823 ( ) (MisS.Ct. App. 2002). The complaint also named the sureties of the circuit clerk and former circuit clerk as party defendants, but the inclusion of additional defendants does not change the fact that Spiegel's complaint also seeks relief from the circuit clerk and former circuit clerk for failing to perform an official duty as circuit clerk. We find that the complaint seeks this relief from the circuit clerk and former circuit clerk because, inter alia, the complaint prays for a joint and several judgment against all named defendants (which includes the circuit clerk and former circuit clerk). Because of this, as to the claims of negligence against the current and former circuit clerks, Spiegel's action had to have been brought under the provisions of the MTCA.
. In this regard, the MTCA declares:
The remedy provided by this chapter against a governmental entity or its employee is exclusive of any other civil action or civil proceeding by reason of the same subject matter against the governmental entity or its employee or the estate of the employee for the act or omission which gave rise to the claim or suit; and any claim made or suit filed against a governmental entity or its employee to recover damages for any injury for which immunity has been waived under this chapter shall be brought only under the provisions of this chapter, notwithstanding the provisions of any other law to the contrary.
Miss. Code Ann. § 11-46-7(1) (Rev. 2002) (emphasis added). Thus, according to the MTCA, when bringing suit against a governmental official for actions taken in his or her official capacity, a plaintiff must comply with the provisions of the MTCA. Among the provisions of the MTCA relevant to this case and with which Spiegel was required to comply are the one year statute of limitations and the notice of claim requirements of Mississippi Code Annotated § 11-46-11.
. Before discussing these requirements, however, we must pause to consider a sub-argument advanced by Spiegel regarding the applicability of the MTCA. Spiegel argues that the MTCA is inapplicable because the acts of negligence complained of occurred in May of 1990, which was prior to July 1, 1993, the effective date of the MTCA. Miss. Code Ann. § 11-46-5 (Rev. 2002). We find this argument to be plainly meritless. The relevant date for determining the applicability of the MTCA is the date of the accrual of the cause of action. Durr ex rel. Durr v. University Hospital, 773 So. 2d 403, 404-05 ( -8) (MisS.Ct. App. 2000). At all times, Spiegel has maintained that his cause of action accrued on September 30, 2002 or August 20, 2003, both dates falling well after the effective date of the act. Thus, Spiegel's argument regarding the effective date of the MTCA is meritless.
. Regarding the notice of claim requirement of § 11-46-11, it appears that Spiegel did not file a notice of claim until roughly nin
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