Barbara Douglas v. Ricky Blackmon
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 98-CA-00756-SCT
BARBARA DOUGLAS
v.
RICKY BLACKMON; DR. JAYNE B. SARGENT, INDIVIDUALLY AND IN HER
OFFICIAL CAPACITY AS SUPERINTENDENT, JACKSON PUBLIC SCHOOL
DISTRICT; DORIS G. BRIDGEMAN, INDIVIDUALLY AND IN HER OFFICIAL
CAPACITY AS PRESIDENT OF THE BOARD, JACKSON PUBLIC SCHOOL DISTRICT;
LYNN EVANS, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS VICEPRESIDENT OF THE BOARD, JACKSON PUBLIC SCHOOL DISTRICT; DR. ACIE
WHITLOCK, JR., INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SECRETARY
OF BOARD, JACKSON PUBLIC SCHOOL DISTRICT; MRS. LEE HARPER,
INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS MEMBER OF THE BOARD,
JACKSON PUBLIC SCHOOL DISTRICT
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
02/02/1998
HON. ROBERT L. GIBBS
HINDS COUNTY CIRCUIT COURT
ISAAC K. BYRD, JR.
KATRINA M. GIBBS
ROBERT G. CLARK, III
JANET McMURTRAY
HARVEY L. FISER
CIVIL - PERSONAL INJURY
REVERSED AND REMANDED - 05/18/2000
6/8/2000
EN BANC.
MILLS, JUSTICE, FOR THE COURT:
¶1. On August 12, 1996, Barbara Douglas ("Douglas") was operating a 1987 Cadillac automobile in a
westerly direction on Woodrow Wilson Drive in Jackson, Hinds County, Mississippi. Ricky Blackmon
("Blackmon") was an employee of the Jackson Public School system. On that particular day, Blackmon
was operating a Ford van, owned by the school district, in an easterly direction on Woodrow Wilson
Boulevard. Douglas alleges that as she and the van approached each other, the van suddenly swerved
across the center line crashing into the driver's side of her vehicle. As a result, Douglas sustained severe
injuries to her face, neck, forehead, back and other parts of her body. Her vehicle also sustained heavy
damage. Blackmon was acting within the course and scope of his employment at the time of the accident.
¶2. According to Douglas's brief, on August 21, 1996, Douglas's counsel mailed a letter to Don Leisering,
an adjuster for Coregis Insurance Company ("Coregis"). Coregis insures the Jackson Public School
District. In that letter, Leisering was informed that Douglas was being represented for the personal injuries
and property damage resulting from the collision with Blackmon.
¶3. On October 10, 1997, 1 year and 59 days after the accident, Douglas filed her complaint against
Blackmon and the JPS Superintendent and Board of Trustees (collectively "Blackmon"). Blackmon
responded by filing a motion to dismiss or in the alternative a motion for summary judgment. The bases for
the motion were (1) that the lawsuit was barred by the one-year statute of limitations contained in the
Mississippi Tort Claims Act, Miss. Code Ann. §11-46-11(1); and (2) that Douglas failed to give notice to
the Superintendent of Jackson Public Schools within 90 days prior to filing the lawsuit as specified in the
Act. On January 30, 1998, the Circuit Court of Hinds County conducted a hearing, and the court granted
the motion to dismiss. Aggrieved by the lower court's decision, Douglas timely filed this appeal.
STATEMENT OF LAW
I.
WHETHER DOUGLAS COMPLIED WITH THE NOTICE PROVISION OF THE
MISSISSIPPI TORT CLAIMS ACT, MISS. CODE ANN. § 11-46-11
¶4. Since issues I and III are essentially the same, both issues will be addressed together. Douglas contends
that she substantially complied with the notice provisions of the Mississippi Tort Claims Act, asserting that
her counsel had numerous oral and written contacts with Coregis in an effort to settle this matter prior to
litigation. Blackmon, however, argues that the contact between Douglas and Coregis was not sufficient to
constitute substantial compliance. Blackmon also asserts that Douglas is barred from raising the substantial
compliance issue upon appeal since it was not raised at the trial court level.
¶5. The Mississippi Tort Claims Act, Miss. Code Ann. § 11-46-11(1), states in relevant part as follows:
any person having a claim for injury arising under the provisions of this chapter against a governmental
entity or its employee shall proceed as he might in any action at law or in equity; provided, however,
that ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim
with the chief executive officer of the governmental entity.
Miss. Code Ann. § 11-46-11(3) further provides that claims against governmental entities must be filed
within one year of the date of the actionable conduct, but filing the notice of claim tolls the statute of
limitations for ninety-five days.
¶6. After enactment of Miss. Code Ann. § 11-46-11, this Court adopted and enforced a strict compliance
standard with respect to the notice of claims requirement of the Tort Claims Act. City of Jackson v.
Lumpkin, 697 So. 2d 1179 (Miss. 1997). See Holmes v. Defer, 722 So. 2d 624 (Miss. 1998);
Carpenter v. Dawson, 701 So. 2d 806 (Miss. 1997). However, in Reaves ex rel. Rouse v. Randall,
729 So. 2d 1237 (Miss. 1998), we announced a new rule requiring only substantial compliance with the
notice provisions of the Act. Likewise, in Carr v. Town of Shubuta, 733 So. 2d 261, 263 & 266 (Miss.
1999), we cited with approval the decision in Reaves adopting the substantial compliance standard and
overruled Lumpkin, Carpenter and Holmes. In Carr, this Court stated:
Even though this Court now finds substantial compliance to be sufficient, we stress that substantial
compliance is not the same as, nor a substitute for, non-compliance. The determination of substantial
compliance is a legal, though fact-sensitive, question and is, therefore, necessarily decided on an ad
hoc basis.
Id. at 265. Douglas acknowledges she did not strictly comply with the notice requirement. Accordingly, we
must address whether Douglas substantially complied with the notice requirement of the Act.
¶7. In the present case, the accident occurred on August 12, 1996, and Douglas obtained counsel on
August 20, 1996. According to Douglas's brief, her counsel mailed a letter, dated August 21, 1996, to
Coregis advising that Douglas was being represented for personal injuries and property damage resulting
from Blackmon's negligent operation of a vehicle owned by the school district. Douglas further alleges in her
brief that extensive negotiations were conducted over the following year with the school district's insurer.
Douglas alleges that on October 29, 1996, Coregis sent a letter wherein it stated "[it] would appreciate
being kept up to date with her current condition and to receive copies of medical bills and reports." Finally,
by way of her brief, Douglas asserts that she provided an extensive settlement brochure was to Coregis.
Douglas contends that Coregis continually gave the impression it was willing to settle, and the only issue in
dispute was the amount of settlement. However, there is absolutely no evidence in the record of any
correspondence between Douglas and Coregis, other than the unsupported assertions made in Douglas's
brief.
¶8. Blackmon argues the absence of evidence in the record to support Douglas's assertions, along with the
fact Blackmon failed to raise the substantial compliance issue at trial level, procedurally bars Douglas from
raising this new issue on appeal. We disagree. Although the trial court correctly applied the strict
compliance standard when it granted Blackmon's motion to dismiss, the law has since changed and is now
substantial compliance. Since the standard in effect was strict compliance at the time the motion to dismiss
granted, this Court finds the parties had no reason to include in the record evidence of correspondence
between the attorneys and Coregis. Accordingly, this Court reverses and remands this case to the Hinds
County Circuit Court for a determination of whether Douglas substantially complied with the notice
requirement of the Act. Furthermore, both parties shall be allowed to supplement the record with any
additional evidence needed to prove or disprove that substantial compliance occurred.
II.
WHETHER THE SCHOOL DISTRICT AND ITS INSURER ARE ESTOPPED FROM
ASSERTING COMPLIANCE WITH MISS. CODE ANN. § 11-46-11
¶9. Douglas asserts that the school district and the insurer should be estopped from asserting that she failed
to comply with the notice requirement. Douglas, however, raises this issue for the first time upon appeal.
"This Court simply refuses to review any allegation of error which is unsupported by the record." Vinson v.
Johnson, 493 So. 2d 947, 950 (Miss. 1986). Consequently, the estoppel issue is procedurally barred
from our review. Although this Court need not look any further after finding a procedural bar, we will briefly
address the issue raised before us.
¶10. In Mississippi Dep't of Pub. Safety v. Stringer, 748 So. 2d 662, 667 (Miss. 1999), this Court held
that good faith settlement negotiations alone are not sufficient to waive the statute of limitations.
"Additionally, while inequitable or fraudulent conduct does not have to be established to estop an assertion
of an inadequate notice of claim defense, inequitable or fraudulent conduct must be established to estop a
party from asserting a statute of limitations defense." Id. at 665 (emphasis in original).
¶11. "We need not rely on inferences and suppositions to fill in the crucial facts that need development by
both [defendant] and [plaintiff]." Smith County Sch. Dist. v. McNeil, 743 So. 2d 376 (Miss. 1999). "A
review of our short history in the Tort Claims Act moving from strict compliance clearly shows that all of our
decisions are fact driven." Id. at 379. Furthermore, "This Court has attempted to move with care and
caution in the development of the law in this new statutory area." Id.
¶12. In McNeil, the trial judge determined there were issues concerning notice and estoppel unresolved and
declined to grant summary judgment. Id. In McNeil, this Court found there were several unanswered
questions as to who notified the insurance company of the accident, when the insurance company was
notified, and who received the notice of the claim. Id. at ¶ 15. Consequently, in McNeil, this Court
affirmed the denial of summary judgment and remanded to the circuit court for further proceedings.
¶13. In the present case, the estoppel issue is barred from appellate review because it was not first raised at
the trial level. Even if the issue had been raised in the lower court, we find there are insufficient facts before
this Court to determine if estoppel is proper. Douglas may, however, raise the issue of estoppel before the
circuit court once the record has been supplemented to prove or disprove Douglas's assertion that she
substantially complied with the notice requirement.
CONCLUSION
¶14. The judgment of the Hinds County Circuit Court granting Blackmon's motion to dismiss is reversed,
and this case is remanded to that court for a determination of whether Douglas substantially complied with
the notice requirement set forth in the Act. Prior to that determination, both parties shall be given
opportunity to supplement the record.
¶15. REVERSED AND REMANDED.
PRATHER, C.J., PITTMAN AND BANKS, P.JJ., SMITH, WALLER, COBB AND DIAZ,
JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.
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