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F & S Sand, Inc. v. Stringfellow
Supreme Court of Mississippi
February 28, 2019
F & S SAND, INC., F & S ABRASIVE COMPANY, INC., DEPENDABLE ABRASIVES, INC. (DISSOLVED), MISSISSIPPI VALLEY SILICA COMPANY, INC., EMPIRE ABRASIVE EQUIPMENT CORPORATION AND DRAVO BASIC MATERIALS COMPANY, INC. AND AMERICAN OPTICAL CORPORATION
TED STRINGFELLOW DRAVO BASIC MATERIALS COMPANY, INC., EMPIRE ABRASIVE EQUIPMENT CORPORATION, F&S ABRASIVE COMPANY, INC., F&S SAND, INC. DEPENDABLE AND DEPENDABLE ABRASIVES, INC. (DISSOLVED), MISSISSIPPI VALLEY SILICA COMPANY, INC.
TED STRINGFELLOWF&S SAND, INC., F&S ABRASIVE COMPANY, INC., DEPENDABLE ABRASIVES, INC. (DISSOLVED), MISSISSIPPI VALLEY SILICA COMPANY, INC., EMPIRE ABRASIVE EQUIPMENT CORPORATION AND DRAVO BASIC MATERIALS COMPANY, INC.
TED STRINGFELLOW EMPIRE ABRASIVE EQUIPMENT CORPORATION, DRAVO BASIC MATERIALS COMPANY, INC., MISSISSIPPI VALLEY SILICA COMPANY, INC., DEPENDABLE ABRASIVES, INC. (DISSOLVED), F&S SAND ABRASIVE COMPANY, INC., F&S SAND, INC.
TED STRINGFELLOW AMERICAN OPTICAL COMPANY, MISSISSIPPI VALLEY SILICA COMPANY, INC., MINE SAFETY APPLIANCE COMPANY, LLC, DEPENDABLE ABRASIVES, INC. (DISSOLVED), EMPIRE ABRASIVE EQUIPMENT CORPORATION, DRAVO BASIC MATERIALS COMPANY, INC., F & S SAND, INC. AND F & S ABRASIVE COMPANY, INC.
OF JUDGMENT: 06/19/2017
JEFFERSON COUNTY CIRCUIT COURT HON. LAMAR PICKARD TRIAL JUDGE
COURT ATTORNEYS: PATRICK MALOUF JOHN TIMOTHY GIVENS JENNIFER
JONES SKIPPER COLLEEN SUZANNE CERKAN WELCH GLEN AUSTIN
STEWART W. MARK EDWARDS JOSEPH GEORGE BALADI
ATTORNEYS FOR APPELLANTS: RANDI PERESICH MUELLER JOSEPH
GEORGE BALADI JENNIFER JONES SKIPPER SILAS W. McCHAREN JOHN
D. COSMICH LAKEYSHA GREER ISAAC MARK JOHNSON GOLDBERG RONALD
G. PERESICH W. MARK EDWARDS JOHANNA MALBROUGH McMULLAN
JENNIFER MORAN YOUNG J. COLLINS WOHNER, JR. WALTER T. JOHNSON
COREY DONALD HINSHAW M. CHRISTINE CROCKETT WHITE SANDRA
DENISE BUCHANAN THOMAS RAY JULIAN MICHAEL D. SIMMONS
ATTORNEYS FOR APPELLEE: DAVID NEIL McCARTY JOHN TIMOTHY
GIVENS TIMOTHY W. PORTER PATRICK MALOUF ROBERT ALLEN SMITH,
ATTORNEYS FOR APPELLANTS: SILAS W. McCHAREN RONALD G.
PERESICH J. COLLINS WOHNER JOHN D. COSMICH WALTER T. JOHNSON
W. MARK EDWARDS MICHAEL D. SIMMONS JOHANNA MALBROUGH McMULLAN
M. CHRISTINE CROCKETT WHITE RANDI PERESICH MUELLER LAKEYSHA
GREER ISAAC JOSEPH GEORGE BALADI JENNIFER JONES SKIPPER
SANDRA DENISE BUCHANAN COREY DONALD HINSHAW MARK JOHNSON
GOLDBERG THOMAS RAY JULIAN JENNIFER MORAN YOUNG
RANDOLPH, C.J., MAXWELL AND BEAM, JJ.
This interlocutory appeal comes before the Court following
the Jefferson County Circuit Court's denial of
Defendants' motions for transfer of venue and summary
judgment in a silica case. On appeal, F&S Sand, Inc.;
F&S Sand Abrasive Company, Inc.; Dependable Abrasives,
Inc. (Dissolved); Mississippi Valley Silica Company, Inc.;
Empire Abrasive Equipment Corporation; Dravo Basic Materials
Company, Inc.; and American Optical Corporation
(collectively, "Defendants") ask this Court to
review whether venue was proper in Jefferson County and
whether the claim was time-barred by the statute of
limitations. This Court reverses the Circuit Court's
denial of summary judgment and renders judgment in favor of
Defendants. The venue issue is moot because the claim is
AND PROCEDURAL HISTORY
On September 26, 2016, plaintiff Ted Stringfellow filed his
second silica complaint in Jefferson County after obtaining
dismissal of his first silica case in Georgia in 2015.
Stringfellow alleged that his complicated silicosis and
silica-related conditions had been caused by exposure to
respirable crystalline silica during his work as a
sandblaster throughout Mississippi, Alabama, Florida, and
Georgia. On November 10, 2016, Stringfellow noticed his own
deposition and on May 15, 2017, Defendants filed their
motions for summary judgment and transfer of venue.
In their motion for summary judgment, Defendants provided
multiple medical exhibits evidencing Stringfellow's
knowledge of the injury dating as far back as November 2007,
although Stringfellow contended that he had no knowledge of
the injury until he was diagnosed with silicosis in October
2014. In November 2007, Stringfellow presented to the
hospital with a cough, and medical records evince that
doctors discussed his work history as a construction worker.
In May 2008, Stringfellow again presented to the hospital
complaining of a cough. After two chest x-rays, he was
discharged with a diagnosis of bronchitis, painful
respiration, other lung disease, diabetes, liver disorder,
cough, and shortness of breath. Stringfellow signed discharge
papers recommending that he follow up with a pulmonologist, a
recommendation Stringfellow acknowledges he disregarded.
Moreover, Stringfellow submitted his medical records, which
contained findings consistent with "pneumoconiosis (such
as silicosis . . .)" to the Social Security
Administration for disability. Although the record reflects
discrepancies in the timing of the application, either 2008
or 2011, Stringfellow discovered his injury well before the
time he filed his complaint.
At the motion hearing on June 19, 2017, the trial judge
stated that, while Stringfellow's failure to follow up
was troubling because plaintiffs have a responsibility to
investigate an injury, he felt ruling on the motion for
summary judgment would have been premature. Thereafter,
Defendants petitioned this Court for interlocutory appeal,
arguing that the trial court's denial of their motions
for summary judgment and transfer of venue was erroneous. The
Defeneant's petition was granted. M.R.A.P. 5.
Standard of Review
When considering issues of law, such as statutes of
limitation, this Court employs a de novo review. Andrus
v. Ellis, 887 So.2d 175, 179 (Miss. 2004). When
reviewing a trial court's grant or denial of a motion to
dismiss or a motion for summary judgment, this Court likewise
applies a de novo standard of review. Whitaker v. Limeco