It’s time for the next installment of Holcomb Law Group law series “Insurance Law from A to Z.” This was put together by our litigation group who practice in the insurance law arena. Of course, if you have questions about these or any other topics please do not hesitate to contact us.
This week’s installment – Statutes of Limitation
Negligence
Most negligence actions are governed by a 3 year statutes of limitations which runs from date of accident/injury. Miss. Code Ann. § 15-1-49.
The statute provides for a “discovery rule” but only for latent injuries and diseases. If a person has such a latent injury or disease, then the statute does not start to run until the person discovers, or by reasonable diligence, should have discovered, the injury. Miss. Code Ann. § 15-1-49 (2).
UM context
A cause of action against an insurer for uninsured-motorist benefits is subject to a 3 year statute of limitations. Miss. Code Ann. § 15-1-49. The limitations period, however, does not always start at the date of the accident or injury. Instead, it commences when the insured knew or should have known that the tortfeasor was uninsured or underinsured. Montgomery v. Safeco Ins. Co. of Ill., No. 2011-CA-00225-COA (Miss. Ct. App. March 20, 2012). The statute begins to run when it can be reasonably known that the damages suffered exceed the limits of insurance available to the alleged tortfeasor. Jackson v. State Farm Mut. Auto. Ins. Co., 880 So. 2d 336 (Miss. 2004).
Receipt by an injured insured of an accident report reflecting that the alleged tortfeasor possesses no insurance provides reasonable knowledge that damages suffered exceed the limits of insurance available for purposes of running the statute of limitations. Montgomery v. Safeco Ins. Co. of Ill., No. 2011-CA-00225-COA (Miss. Ct. App. March 20, 2012).
Tolling/Agreement
The Mississippi Supreme Court recently ruled that statute of limitations cannot be lengthened by agreement. This prohibition against tolling agreements applies to any statute of limitations in Chapter 15, but not to limitations in other chapters of the code. However, the courts will look to determine whether a party is equitably estopped from asserting the statute of limitations under the circumstances. Miss. Code Ann. § 15-1-5. Townes v. Rusty Ellis Builder, Inc., No. 2011-CA-164-SCT (Miss. October 4, 2012).
Continued promises of payment can create a situation where the court will find that a carrier waived the statute. See Douglas v. Parker Elec. v. Mississippi Design and Devel. Corp., 949 So.2d 874 (Miss. 2007). However, simply continuing to negotiate has been held insufficient to toll or waive statute.
Intentional Torts
Many intentional torts, including intentional infliction of emotional distress, are governed by a 1-year statute of limitations. Miss. Code Ann. § 15-1-35.
Malpractice
Medical malpractice actions have a 2 year statute of limitations which runs from when the alleged action or omissions occurred, or when with reasonable diligence might have been first discovered. Notice must be given 60 days prior to filing of the suit which will extend the statute of limitations if it would have expired during the 60 days. Miss. Code Ann. § 15-1-36.
There is a seven year statute of repose which bars any action not brought within that time period unless it involves a foreign object or fraudulent concealment. Id.
Minors
Statute does not start running on minors until they turn 21 (even if they are emancipated), then it starts to run for the applicable statute of limitations for that injury. Miss. Code Ann. § 15-1-59.
Wrongful Death
Statute runs from underlying event that caused injury. The statute applicable to the particular injury controls (i.e. medical malpractice claims have 2 years from injury, intentional torts have 1 year from injury, general negligence claims have 3 years from injury). This is a change in the law since 2006. See Jenkins v. Pensacola Health Trust, Inc., 933 So. 2d 923 (Miss. 2006) (previous law applied a 3-year statute from the date of death).
The wrongful death statute, Miss. Code Ann. 11-7-13, encompasses both survival claims and wrongful death claims. The Mississippi Supreme Court has recently clarified the confusion in this area and held that the statute begins to run from the underlying tort that caused the death in a survival claim; however, the statute begins to run from the time of death in a wrongful death claim. Caves v. Yarbrough, M.D., 991 So. 2d 142, 149-50 (Miss. 2008).
Survival claims are claims in which if death had not ensued, the injured party could have maintained an action and recovered damages. A true wrongful death claim belongs solely to the decedent’s beneficiaries and is a claim brought to recover damages one person’s death causes to another (i.e. loss of love, society and companionship). Id. at 149. See also, Wrongful Death.
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The information contained in this post is for general guidance on matters of interest only. The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, there may be omissions or inaccuracies in information contained in this report. Accordingly, the information in this report is provided with the understanding that the authors are not herein engaged in rendering legal, tax, or other professional advice and services. As such, it should not be used as a substitute for consultation with legal or other competent advisers. Before making any decision or taking any action, you should consult with your counsel or the attorneys at Holcomb Law Group.
