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Hammons v. Navarre

Supreme Court of Mississippi, En Banc

June 7, 2018

ROBERT HAMMONS, JR.
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

          DATE OF JUDGMENT: 12/31/2014

         ON WRIT OF CERTIORARI

          LEFLORE COUNTY CIRCUIT COURT HON. MARGARET CAREY-McCRAY TRIAL JUDGE

          TRIAL COURT ATTORNEYS: WAYNE E. FERRELL, JR. JOE S. DEATON, III MARC A. BIGGERS MICHAEL C. GATLING TIMOTHY J. STERLING W. SCOTT WELCH, III

          ATTORNEYS FOR APPELLANT: WAYNE E. FERRELL, JR. ADRIENNE P. PARKER BRADLEY S. CLANTON

          ATTORNEYS FOR APPELLEES: TIMOTHY J. STERLING CHARLES G. COPELAND JAMES R. MOORE, JR. MICHAEL C. GATLING RICHARD L. KIMMEL MARK A. BIGGERS W. SCOTT WELCH, III CLAY GUNN

          CHAMBERLIN, JUSTICE.

         ¶1. The dispositive issue before the Court is whether Robert Hammons Jr. properly named fictitious parties in his original complaint so his amended complaint related back to the filing of the original complaint to avoid the statute-of-limitations bar. The Circuit Court of Leflore County ruled that Hammons had failed to comply with the fictitious-party rules and granted summary judgment for the defendants. The Court of Appeals, in an evenly divided decision, affirmed the circuit court's judgment. Hammons v. Navarre, 2017 WL 1392835, at *10 (Miss. Ct. App. Apr. 18, 2017).[1]

         ¶2. Hammons's amended complaint-fifteen pages longer than his original complaint-added new parties and new claims against those parties. As the amendment was not a substitution under Mississippi Rule of Civil Procedure 9(h), it does not relate back to the time of filing of the original complaint under Mississippi Rule of Civil Procedure 15(c)(2). Further, the amended complaint was filed outside the statute of limitations, and Hammons's claim is time-barred. Thus, we affirm the judgment of the circuit court and the decision of the Court of Appeals.

         FACTS AND PROCEDURAL HISTORY[2]

         ¶3. On October 25, 2009, Hammons was piloting a helicopter spraying herbicides on timber fields near Eupora when the helicopter crashed. Hammons was employed by Provine Helicopter, which owned the subject helicopter. Hammons was severely injured and now is 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. 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 went on to state:

A 500-gallon fuel tank was located a[t] 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. The only named defendant was Scott Petroleum, which supplied fuel to Provine Helicopter. 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 purported to name"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, Scott Petroleum's counsel provided Hammons's counsel with a copy of the NTSB report. The cover letter from Scott Petroleum's counsel 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 identified Defendants A through F from the original complaint as follows: Metal Craft Inc. ("Metal Craft"); Wade C. Navarre and Navarre Fabrication (collectively, "Navarre"); Velcon Filters LLC ("Velcon"); Knappco Corporation ("Knappco"); and "Wilden."[3] 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. Also, 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, 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.[4] 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 [sic]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, 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 Information request letter dated March 6, 2013, is attached hereto . . . .

         ¶11. The circuit court subsequently held a hearing on the defendants' motions to dismiss and/or for summary judgment and entered an opinion and order granting summary judgment in favor of Navarre, Velcon, Knappco, and Wilden. The court certified its order as final pursuant to Mississippi Rule of Civil Procedure 54(b).

         ¶12. Hammons appealed to this Court, and we assigned the case to the Court of Appeals, which affirmed the trial court's judgment. Hammons, 2017 WL 1392835, at *10. Hammons then petitioned this Court for a writ of certiorari, which we granted. Hammons v. Navarre, 2018 WL 709221, at *1 (Miss. Jan. 4, 2018). Upon review, we affirm the decision of the Court of Appeals.

         STANDARD OF REVIEW

         ¶13. This Court reviews an order granting or denying summary judgment de novo. Peoples Bank of Biloxi v. McAdams, 171 So.3d 505, 508 (Miss. 2015). Moreover, we subject all questions of law to a de novo standard. Henley Timber Co. v. Ponti, 991 So.2d 1195, 1196 (Miss. 2008). The issue of the statute of limitations is a question of law which we review de novo. McAdams, 171 So.3d at 508.

         ANALYSIS

         I.Fictitious ...


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