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Rockwell v. Preferred Risk Mutual Insurance Co.

April 09, 1998

CHRIS ROCKWELL
v.
PREFERRED RISK MUTUAL INSURANCE COMPANY AND RODNEY MINGA



DATE OF JUDGMENT: 10/25/96 TRIAL JUDGE: HON. FRANK ALLISON RUSSELL COURT FROM WHICH APPEALED: ITAWAMBA COUNTY CIRCUIT COURT BY: THOMAS G. WALLACE NATURE OF THE CASE: CIVIL - PERSONAL INJURY

Before Sullivan, P.j., Banks And Mills, JJ.

The opinion of the court was delivered by: Sullivan, Presiding Justice

DISPOSITION REVERSED AND REMANDED - 04/09/98

On October 23, 1995, Chris Rockwell filed his complaint against Rodney Minga and Preferred Risk Mutual Insurance Company (Preferred Risk), alleging that he was injured as a result of Minga's negligence while riding on the back of a four wheeler driven by Minga on or about August 1, 1992. Rockwell claimed that he sustained damages in excess of $350,000, and that Preferred Risk was responsible for $20,000 of his damages under his uninsured motorist coverage in his policy with them. Both Minga and Preferred Risk filed answers and motions to dismiss, alleging that Rockwell's claim was barred by the expiration of the applicable three-year statute of limitations. In his Response to Motion to Dismiss, Rockwell contended that his claim should not be barred by the statute of limitations due to his unsoundness of mind resulting from the head injury he sustained in the four wheeler accident when he hit his head on a concrete driveway. He maintained that Miss. Code Ann. § 15-1-59 (1995) (the savings statute) applied so as to toll the statute of limitations. To support his position, Rockwell filed his own affidavit and a page from Dr. Walter Eckman's medical records on Rockwell.

After considering arguments by counsel at a May 20, 1996, hearing, Circuit Court Judge Frank A. Russell granted the defendants' motions to dismiss, treating their 12(b)(6) motions as Rule 56 motions for summary judgment. Miss. R. Civ. P. 12(b)(6) and 56. Judge Russell found that Rockwell filed his complaint eighty-three days after the statute of limitations expired and that the savings statute did not apply, because there was no legally adjudicated incompetency on the part of Rockwell at the time of the accident or thereafter.

Rockwell appeals to this Court from the trial court's dismissal of his case. We hold that the trial court erred in finding that there must be legally adjudicated incompetency to invoke the savings statute. Therefore we reverse and remand this case for further proceedings consistent with this opinion. STATEMENT OF THE LAW Standard of Review

The standard of review is as follows:

The Court employs a de novo standard of review in reviewing a lower court's grant of summary judgment motion. Roussel v. Hutton, 638 So.2d 1305, 1314 (Miss.1994). Summary judgment is appropriate if the evidence before the Court--admissions in the pleadings, answers to interrogatories, depositions, affidavits, etc.--shows there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Newell v. Hinton, 556 So.2d 1037, 1041 (Miss.1990). This Court does not try issues on a Rule 56 motion, but only determines whether there are issues to be tried. Mississippi Ins. Guar. Assoc. v. Byars, 614 So.2d 959, 963 (Miss.1993). In reaching this determination, the Court examines affidavits and other evidence to determine whether a triable issue exists, rather than the purpose of resolving that issue. Comment, Miss. R. Civ. P. 56.

Mississippi Gaming Comm'n v. Treasured Arts, Inc., 699 So.2d 936, 938 (Miss. 1997).

I.

WHETHER THE CIRCUIT COURT OF ITAWAMBA COUNTY, MISSISSIPPI, ERRED, IN GRANTING THE MOTIONS TO DISMISS, FILED BY PREFERRED RISK AND MINGA.

Rockwell's cause of action falls under the three-year general statute of limitations set out in Miss. Code Ann. § 15-1-49 (1995). "All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after." Miss. Code Ann. § 15-1-49(1) (1995). The four wheeler accident occurred on August 1, 1992, so the deadline for Rockwell to file his personal injury lawsuit was August 1, 1995. Since Rockwell waited until October 23, 1995, to file his complaint, Judge Russell was correct in finding that Rockwell was eighty-three days past the deadline.

Mississippi's savings statute provides in pertinent part, "If any person entitled to bring any of the personal actions mentioned shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the actions within the times in this chapter respectively limited, after his disability shall be removed as provided by law." Miss. Code Ann. § 15-1-59 (1995). "The term 'unsound mind,' when used in any statute in reference to persons, shall include idiots, lunatics, and persons non compos mentis." Miss. Code Ann. § 1-3-57 (1972).

The main issue before us is whether unadjudicated unsoundness of mind is sufficient to trigger the savings statute. Minga and Preferred Risk argue that Judge Russell was correct in finding that the language of § 15-1-59 suggests that unsoundness of mind must be both established by law and removed by law, making unadjudicated incompetency insufficient to toll the statute of limitations. They rely heavily on the words "after his disability shall be removed as provided by law" in the statute to support their position. Miss. Code Ann. § 15-1-59 (1995) (emphasis added). We find that the legislature's intent ...


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