ROBERT HAMMONS, JR. APPELLANT
C. WADE NAVARRE, II, INDIVIDUALLY AND D/B/A NAVARRE FABRICATION, INC., NAVARRE FABRICATION, INC., VELCON FILTERS, LLC, KNAPPCO CORPORATION AND WILDEN PUMP AND ENGINEERING, LLC APPELLEES
OF JUDGMENT: 12/31/2014
COUNTY CIRCUIT COURT, HON. MARGARET CAREY-MCCRAY.
ATTORNEYS FOR APPELLANT: WAYNE E. FERRELL JR. ADRIENNE P.
ATTORNEYS FOR APPELLEES: W. SCOTT WELCH III CHARLES G.
COPELAND JAMES R. MOORE JR. MICHAEL C. GATLING TIMOTHY J.
STERLING MARC A. BIGGERS RICHARD L. KIMMEL.
This case involves products liability claims arising out of a
helicopter crash near Eupora. The helicopter's pilot,
Robert Hammons Jr., suffered severe injuries in the crash.
Hammons initially filed suit against the manufacturer of the
fuel used in the helicopter, Scott Petroleum, alleging that
the fuel was defective and contaminated when it was sold and
left the control of Scott Petroleum. Hammons's original
complaint also purported to name as defendants fictitious
parties, "Defendants A-P." However, the complaint
did not articulate any alleged wrongful conduct of these
fictitious parties. Rather, the original complaint stated
that the fictitious parties' "liability to [Hammons
was] unknown at [that] time."
Approximately six months after the expiration of the
applicable three-year statute of limitations, see
Miss. Code Ann. § 15-1-49 (Rev. 2012), Hammons attempted
to amend his complaint to substitute real defendants for the
fictitious parties. Hammons alleged that these new defendants
manufactured or fabricated the fuel truck used to refuel the
helicopter and the fuel tank, fuel pump, and fuel filter on
the truck. Hammons alleged, for the first time, that the
helicopter's fuel was contaminated as a result of defects
in the truck and/or its component parts. The newly added
defendants moved for summary judgment, arguing that their
attempted substitution did not comply with Mississippi Rule
of Civil Procedure 9(h), as interpreted by our Supreme Court
in Veal v. J.P. Morgan Tr. Co. N.A., 955 So.2d 843,
845-47 (¶¶8-15) (Miss. 2007). Therefore, the new
defendants argued, Hammons's claims against them did not
relate back to the date of his original complaint, which
meant that the statute of limitations had expired as to those
claims. The circuit court agreed and granted summary judgment
for the defendants. We also agree and affirm.
AND PROCEDURAL HISTORY
On October 25, 2009, Hammons was piloting a helicopter
spraying herbicides on timber fields near Eupora when the
helicopter's engine failed, causing it to crash. Hammons
was severely injured and is now paralyzed from the waist
On May 26, 2011, the National Transportation Safety Board
(NTSB) adopted and published its final report on the
accident. The NTSB found that the probable cause of
the crash was a loss of engine power due to fuel
contamination. The NTSB report stated:
A postaccident examination of the helicopter's fuel
system revealed a brown contaminate, of a density greater
than jet fuel. . . . Examination of the dual use truck that
was used to service the helicopter with fuel and herbicide
revealed that the fuel filter between the Jet-A fuel tank and
the fuel delivery hose was also contaminated. A common trough
that ran along the top of the fuel truck provided an area
where any over flow of water used to fill the truck's
herbicide tank could be introduced into the truck's Jet-A
fuel tank through gaps in the fuel tank's cap seal.
"dual use truck" was owned and operated by
Hammons's employer, Provine Helicopter. The NTSB report
goes on to state:
A 500-gallon fuel tank was located a the foreword end of the
truck, while a tank for mixing water and spray chemical was
located at the aft end. A common trough ran along the top
portion of both tanks, which would retain any over-fill of
water or fuel, and was drained through two small holes at the
forward end. Examination of the cap for the fuel tank
revealed that the o-ring seal and the fuel vent were
deteriorated, and that the seals were not continuous.
The fuel tank was configured in a way that fuel was taken
directly from the lowest point in the tank, and pumped
through a filter to the fuel filler hose. No standpipe was
present at the bottom of the tank that would have prevented
any collected water from entering the fuel filter, and no
pressure gauges or sensors were installed up or downstream of
The truck-based fuel tank was checked for the presence of
water using a water finding paste applied to a dip stick. A
small amount of water was detected. The fuel filter between
the tank and the delivery hose was removed and examined. The
filter element appeared "bulged" and water was
present in the filter. The brown contaminant was present
throughout the paper folds of the fuel filter, and was
collected along its interior.
On December 27, 2011, Hammons filed an eleven-page complaint
in the circuit court. Scott Petroleum, which supplied fuel to
Provine Helicopter, was the only named defendant. Hammons
alleged that the fuel supplied by Scott Petroleum "was
defective and unreasonably dangerous." Hammons further
alleged that there was no "substantial change in [the
fuel's] condition from the time the fuel left the places
of manufacture and/or processing until the time of the
accident." Rather, Hammons alleged, the fuel was already
in a "defective condition" when it was
"sold" and "left the control of Scott
Petroleum." The complaint did not allege or articulate
any wrongful conduct by any other entity, known or unknown.
Hammons's complaint also purported to name unknown
"Defendants A-P." As to these defendants, the
complaint stated, in its entirety:
Defendants, A-P, are corporations or persons whose true
identities and addresses are unknown at this time and whose
liability to the Plaintiff is unknown at this time. Plaintiff
will amend his Complaint and include the true names and
addresses of the Defendants A-P once their identities are
learned and once their liabilities are ascertained.
Scott Petroleum was served on March 8, 2012. On April 6,
2012, counsel for Scott Petroleum provided counsel for
Hammons with a copy of the NTSB report. Counsel's cover
letter stated in part:
Based on this report, it appears that if fuel contamination
existed, that fuel contamination originated in the field
service truck owned by Provine Helicopter which refueled the
subject helicopter several times the day of the incident.
Consequently, pursuant to this correspondence, we hereby
request that you dismiss this matter with prejudice as to
Obviously, Scott Petroleum can have no liability for the
failure of Provine Helicopter to maintain its service truck.
Petroleum subsequently answered the complaint and filed a
motion for summary judgment that attached the NTSB report as
On April 8, 2013, Hammons filed a motion for leave to file an
amended complaint. On April 17, 2013, the court entered an
agreed order granting Hammons's motion. On April 30,
2013, Hammons filed a twenty-six page amended complaint that
purported to identify Defendants A through F from the
original complaint as follows: Metal Craft Inc.; Wade C.
Navarre and Navarre Fabrication (collectively,
"Navarre"); Velcon Filters LLC; Knappco
Corporation; and "Wilden." The amended complaint
alleged that Metal Craft and Navarre manufactured the fuel
truck and fuel compartments used to fuel the helicopter; the
amended complaint further alleged, for the first time, that
the truck and compartments were defective. The amended
complaint alleged that Velcon Filters manufactured a fuel
filter on the fuel truck; the amended complaint further
alleged, for the first time, that the filter was defective.
The amended complaint alleged that Knappco manufactured the
lid on the fuel truck's fuel tank; the amended complaint
further alleged, for the first time, that the lid was
defective. Finally, the amended complaint alleged that Wilden
manufactured the fuel truck's pump; the amended complaint
further alleged, for the first time, that the pump was
Navarre, Velcon Filters, Knappco, and Wilden all filed
motions to dismiss and/or for summary judgment. They argued
that Hammons's claims against them were barred by the
statute of limitations because the original complaint did not
properly identify them as fictitious parties pursuant to
Mississippi Rule of Civil Procedure 9(h) and, therefore, the
amended complaint's allegations against them did not
relate back to the date of the original complaint. Knappco
and Wilden also argued that the claims against them should be
dismissed due to insufficient service of
process. It does not appear that Metal Craft was
ever served, and it never entered an appearance.
In response to the defendants' motions, Hammons's
attorney submitted an affidavit that stated in part:
I was associated on or about February 9, 2011. I was asked to
investigate and prosecute a claim, if one existed, against
those individuals or entities responsible for the accident on
October 25, 2009.
. . . I immediately began to research and investigate the
accident but was prohibited from making any meaningful
investigation whatsoever because of the inability to inspect
and test the fuel and the fueling equipment. I was not
provided with a description of most of the products involved
in the fueling operation; the names and addresses of
manufacturers of the parts; or each party's roll in the
refueling procedure until January of 2013. The NTSB
investigator filed his supplemental report on May 26, 2011,
and for the first time mentioned potential problems with the
fuel supply devices. . . .
. . . The NTSB did not release any of the information until
May 26, 2011, and the fuel equipment used by Provine
Helicopter was not made available to the Plaintiff until
approximately January of 2013 . . . . Only after suit was
filed and after Scott Petroleum partially responded to
discovery requests was it revealed that [Metal Craft,
Navarre, Velcon Filters, Knappco, and Wilden] were
potentially additionally responsible for the October 25, 2009
accident . . . .
I did not receive . . . the responses to Freedom of
Information requests [from the NTSB/FAA] until April of 2013.
A copy of my Freedom of lnformation request letter dated
March 6, 2013, is attached hereto . . . .
The circuit court subsequently held a hearing on the
defendants' motions to dismiss or for summary judgment
and entered an opinion and order granting summary judgment in
favor of Navarre, Velcon Filters, Knappco, and Wilden. The
court certified its order as final pursuant to Mississippi
Rule of Civil Procedure 54(b).
A motion for summary judgment "shall be rendered
forthwith if . . . there is no genuine issue as to any
material fact and . . . the moving party is entitled to
judgment as a matter of law." M.R.C.P. 56(c). We review
an order granting or denying summary judgment de novo.
Peoples Bank of Biloxi v. McAdams, 171 So.3d 505,
508 (¶10) (Miss. 2015). When we consider issues of law,
such as statutes of limitations, we also apply a de novo
standard of review. Id. Finally, the
"application of the Mississippi Rules of Civil Procedure
in this case is a question of law, " which we also
review de novo. Veal, 955 So.2d at 845 (¶6). We
are "bound to follow the plain and ordinary meanings of
the Rules of Civil Procedure." Id.
In this case, the circuit court properly applied clear and
controlling Mississippi Supreme Court precedent in
determining that the attempted substitution of Navarre,
Velcon Filters, Knappco, and Wilden failed to comply with
Mississippi Rule of Civil Procedure 9(h). Indeed, Hammons
attempted to utilize Rule 9(h) in precisely the manner that
the Supreme Court held was improper in Veal, 955
So.2d at 845-47 (¶¶8-15). Because these defendants
were not properly added pursuant to Rule 9(h), the claims
against them do not relate back to the original complaint and
are barred by the statute of limitations.
Mississippi Rule of Civil Procedure 9(h) provides:
When a party is ignorant of the name of an opposing
party and so alleges in his pleading, the opposing party may
be designated by any name, and when his true name is
discovered the process and all pleadings and proceedings
in the action may be amended by substituting the true
name and giving proper notice to the opposing party.
(Emphasis added). Thus, a plaintiff may file a complaint
alleging that "fictitious parties" are liable for
his injuries. When a plaintiff makes proper use of
Rule 9(h), the substitution of a defendant's true name
for a fictitious name relates back to ...