CYNDY HOWARTH, INDIVIDUALLY, WIFE, WRONGFUL DEATH BENEFICIARY, AND AS EXECUTRIX OF THE ESTATE OF RICHARD HOWARTH, JR., DECEASED, JULIET HOWARTH McDONALD, INDIVIDUALLY, DAUGHTER, AND AS WRONGFUL DEATH BENEFICIARY OF RICHARD HOWARTH, JR., DECEASED, AND CYNDY HOWARTH, AS GUARDIAN, NATURAL MOTHER AND NEXT FRIEND OF CYNTHIA HOWARTH, A MINOR AND WRONGFUL DEATH BENEFICIARY OF RICHARD HOWARTH, JR., DECEASED
M & H VENTURES, LLC
OF JUDGMENT: 02/11/2016
FROM WHICH APPEALED NESHOBA COUNTY CIRCUIT COURT HON. VERNON
R. COTTEN TRIAL JUDGE
COURT ATTORNEYS: RICHARD L. KIMMEL WILLIAM WYATT SIMMONS
RONNIE L. WALTON WAYNE E. FERRELL, JR. RICHARD BENJAMIN
McMURTRAY GLENN F. BECKHAM
ATTORNEYS FOR APPELLANT: WAYNE E. FERRELL, JR. BRADLEY S.
CLANTON WILLIAM WYATT SIMMONS
ATTORNEYS FOR APPELLEE: GLENN F. BECKHAM RICHARD L. KIMMEL
WALLER, C.J., KITCHENS, P.J., AND BEAM, J.
KITCHENS, PRESIDING JUSTICE, FOR THE COURT:
Richard H. Howarth, Jr., died in an airplane crash on January
16, 2012. Howarth was piloting the plane, which was the
property of M&H Ventures, LLC ("M&H
Ventures" or "the LLC"). The sole member of
M&H Ventures was Howarth. On December 6, 2013,
Howarth's widow, Cyndy Howarth, as executrix of
Howarth's estate, wrongful death beneficiary of Howarth,
and next friend of minor daughter Cynthia Howarth, along with
adult daughter Juliet Howarth McDonald (the wrongful death
beneficiaries), filed suit against the LLC in the Circuit
Court of Neshoba County, alleging that Howarth's death
had been caused by the negligence, gross negligence, and
recklessness of M&H Ventures and others.
M&H Ventures filed a motion to dismiss, and,
subsequently, a motion for summary judgment, arguing that the
wrongful death beneficiaries could not recover because the
success of their claims depended on proving that
Howarth's own negligence had caused his death. In
response, the wrongful death beneficiaries argued that,
because M&H Ventures, an LLC, had owned the aircraft and
all of Howarth's negligent actions had been performed as
a member of this LLC, they could recover from M&H
Ventures for Howarth's negligence. The trial court
granted summary judgment in favor of M&H Ventures.
Because the comparative negligence statute, Mississippi Code
Section 11-7-15, prevents a plaintiff from recovering for
negligence attributable to the injured person, and here
Howarth's wrongful death beneficiaries were seeking
recovery for Howarth's own negligence, we affirm.
On January 16, 2012, Howarth was taking off from the
Philadelphia Municipal Airport in Philadelphia, Mississippi,
when his airplane crashed, causing his death. Howarth was the
sole occupant of the plane. Approximately six years before
the crash, Howarth had created M&H Ventures, a Montana
limited liability company. According to M&H Ventures'
Operating Agreement, the LLC's purpose was investment in
real and personal property. The Operating Agreement provided
that the "Member (Owner)" of M&H Ventures was
Howarth. In October 2011, M&H Ventures purchased the
plane that later was involved in the crash.
The wrongful death beneficiaries sued M&H Ventures;
Tracey Easom, an airplane mechanic; Ted Smith Aerostar
Aircraft Corporation, the manufacturer of the airplane; and
fictitious defendants A-M. The trial court granted the
wrongful death beneficiaries' request to file an amended
complaint on January 14, 2015, substituting Aerostar Aircraft
Corporation, Piper Aircraft Corporation, Piper Aircraft
Corporation Irrevocable Trust, New Piper Aircraft, Inc., and
Piper Aircraft, Inc. for fictitious defendants A through E.
The plaintiffs alleged that the plane piloted by Howarth had
experienced a loss in directional control on takeoff that had
resulted in the deadly crash. While the plaintiffs'
claims in the complaint were somewhat repetitive, their basic
allegations were that the defendants had been negligent,
grossly negligent, and reckless in the maintenance, repair,
and inspection of the aircraft, fuel system, fuel selector
switches, exhaust system, and their component parts. They
alleged that M&H Ventures and Easom negligently and
recklessly had performed engine modifications, repairs,
maintenance, and inspection, and also that they had
certified, serviced, repaired, tested, inspected, overhauled,
rebuilt, owned, and operated the plane and its parts.
Further, they alleged that M&H Ventures and Easom falsely
had certified in engine logs that the plane was airworthy and
not unreasonably dangerous. They also made claims of
defective condition and failure to warn against the
manufacturers. The plaintiffs alleged that "[o]n the
occasion in question the negligence of the Defendants,
M&H Ventures, Tracey Easom, and Aircraft Manufacturer[s],
was the proximate cause of the accident in question . . .
M&H Ventures' defense was provided pursuant to the
terms of a liability insurance policy from which the wrongful
death beneficiaries sought to collect in this
lawsuit. M&H Ventures filed a motion to dismiss
on grounds including failure to state a claim, followed by a
motion for summary judgment. The wrongful death beneficiaries
responded and requested a continuance to allow them to obtain
discovery under Mississippi Rule of Civil Procedure 56(f).
The trial court denied the motion for a continuance and
granted summary judgment to M&H Ventures. The trial court
found that, under the comparative negligence statute,
Mississippi Code Section 11-7-15, the wrongful death
beneficiaries could not recover for the negligence of M&H
Ventures, because M&H Ventures only could have acted
through its sole member, Howarth, and a wrongful death
beneficiary cannot recover for the decedent's own
negligence. The trial court further denied the wrongful death
beneficiaries' request for a continuance for further
discovery because there was no possibility of unearthing ...