ROBERT HAMMONS, JR.
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
OF JUDGMENT: 12/31/2014
LEFLORE COUNTY CIRCUIT COURT HON. MARGARET CAREY-McCRAY 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
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).
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.
AND PROCEDURAL HISTORY
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.
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
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 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. 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.
Hammons's complaint purported to name"Defendants
A-P." As to these defendants, the complaint stated, in
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, 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
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
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." 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.
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. 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 [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 . . . .
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).
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.
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.