JAMES ALLEN BURCH, WILLIAM HAROLD BURCH, AND NANCY BURCH MCCLOUD, AS WRONGFUL DEATH BENEFICIARIES OF HAROLD E. BURCH, DECEASED
ILLINOIS CENTRAL RAILROAD COMPANY
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/12/2013. TRIAL JUDGE: HON. JEFF WEILL, SR.
FOR APPELLANTS: JOHN TIMOTHY GIVENS, TIMOTHY W. PORTER, PATRICK C. MALOUF.
FOR APPELLEE: STEPHANIE CAMILLE REIFERS.
BEFORE DICKINSON, P.J., LAMAR AND COLEMAN, JJ. WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, CHANDLER, AND KING, JJ., CONCUR. RANDOLPH, P.J., AND PIERCE, J., NOT PARTICIPATING.
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
¶1. Plaintiffs filed a wrongful death suit against Illinois Central for the death of their father. The case was dismissed because the three-year statute of limitations had run. Plaintiffs appealed, claiming that the statute of limitations had not expired, because it was tolled while the first suit, filed by the plaintiffs' mother, was pending.
Facts and Procedural History
¶2. Harold Burch worked for Illinois Central Railroad Company from 1950 to 1983. The plaintiffs claim that Harold was exposed to asbestos during that time. Harold was diagnosed with asbestosis and lung cancer, and he died in August 2006. Harold's widow, Frances Burch, individually and on behalf of Harold's wrongful death beneficiaries, filed suit against Illinois Central in April 2009. Frances died in September 2011 while the suit was pending, and Illinois Central filed a suggestion of death. Frances's attorneys failed to file a motion for substitution of parties within ninety days as required, so Illinois Central filed a motion to dismiss. Frances's counsel did not respond to the motion to dismiss until five months later, after being ordered to do so by the court. After a hearing, the case was dismissed without prejudice in September 2012. The following day, Harold's children filed a second complaint as Harold's wrongful death beneficiaries. Illinois Central moved to dismiss, asserting that the statute of limitations had expired. The plaintiffs claimed that the statute of limitations had not expired because it had been tolled during the pendency of the first lawsuit. The circuit court found that the statute of limitations had run, and the case was dismissed. The plaintiffs appealed.
¶3. The issue on appeal is whether the doctrine of equitable tolling applied and tolled the statute of limitations while the first suit was pending. The standard of review for a trial court's grant
or denial of a motion to dismiss is de novo. Foss v. Williams, 993 So.2d 378, 382 (¶ 17) (Miss. 2008) (quoting Burleson v. Lathem, 968 So.2d 930, 932 (Miss. 2007)). The de novo standard also applies to the application of a statute of limitations, which is a question of law. Sarris v. Smith, 782 So.2d 721, ...