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Hammons v. Navarre

Court of Appeals of Mississippi

April 18, 2017

ROBERT HAMMONS, JR. APPELLANT
v.
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

          DATE OF JUDGMENT: 12/31/2014

         LEFLORE COUNTY CIRCUIT COURT, HON. MARGARET CAREY-MCCRAY.

          ATTORNEYS FOR APPELLANT: WAYNE E. FERRELL JR. ADRIENNE P. FRASCOGNA.

          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.

         EN BANC.

          WILSON, J.

         ¶1. 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."

         ¶2. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶3. 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 down.

         ¶4. On May 26, 2011, the National Transportation Safety Board (NTSB) adopted and published its final report on the accident.[1] 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.

         The "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 filter.
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.

         ¶5. 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.

         ¶6. 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.

         ¶7. 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 [Scott Petroleum].
Obviously, Scott Petroleum can have no liability for the failure of Provine Helicopter to maintain its service truck.

         Scott Petroleum subsequently answered the complaint and filed a motion for summary judgment that attached the NTSB report as an exhibit.

         ¶8. 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."[2] 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 defective.

         ¶9. 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.[3] It does not appear that Metal Craft was ever served, and it never entered an appearance.

         ¶10. 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 . . . .

         ¶11. 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).

         ANALYSIS

         ¶12. 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.

         ¶13. 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.

         I. Rule 9(h)

         ¶14. 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 ...


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