324 So.3d 333
Miss. Ct. App.2021Background
- On Sept. 14, 2017, Amos Taylor (a certified volunteer firefighter) was driving his personal vehicle to respond to an emergency call when he collided with Brenda Cook, who was making a left turn; Cook sued for negligence and negligence per se.
- Taylor answered on March 14, 2018, asserting several defenses but did not plead MTCA qualified immunity or state he was acting within the scope of employment in the answer.
- Parties engaged in extensive litigation and discovery (written discovery, depositions, subpoenas); Taylor’s discovery responses and deposition disclosed he was responding to an emergency.
- Fourteen months after filing his answer, Taylor moved for summary judgment asserting MTCA qualified immunity; he then filed a motion to amend his answer after filing his summary-judgment papers.
- The circuit court granted summary judgment for Taylor on qualified-immunity grounds; Cook appealed, arguing Taylor waived the MTCA immunity defense by failing to plead it and by actively litigating for 14 months.
- The Court of Appeals reversed, holding Taylor waived the qualified-immunity affirmative defense and remanded for further proceedings on Cook’s negligence claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Taylor waived MTCA qualified-immunity defense by failing to plead it and waiting 14 months to assert it | Cook: failure to plead under M.R.C.P. 8(c) + extensive participation in discovery = waiver | Taylor: his Rule 12(b)(6) catch-all preserved the defense and the delay was reasonable | Held: Waiver. 14-month unjustified delay plus active participation forfeited the MTCA affirmative defense; summary judgment reversed and case remanded |
| Whether a Rule 12(b)(6) “catch-all” plea preserves other Rule 12 or affirmative defenses | Cook: 12(b)(6) does not give fair notice of affirmative defenses | Taylor: 12(b)(6) was broad enough to preserve MTCA immunity | Held: Rejected. Burleson precedent forbids using 12(b)(6) to reserve other defenses; affirmative defenses must be specifically pled under Rule 8(c) |
| Whether remand to let defendant amend answer was required | Cook: amendment should not be allowed because defense was waived and amendment untimely | Taylor: leave to amend under M.R.C.P. 15(a) should be freely granted | Held: No. Court declined to permit amendment given Rule 8(c) waiver principles and Horton/Hutzel framework; amendment effectively denied by reversing summary judgment |
Key Cases Cited
- Mississippi Credit Ctr., Inc. v. Horton, 926 So. 2d 167 (Miss. 2006) (an eight-month unjustified delay in asserting a right that would terminate litigation, coupled with active participation, ordinarily constitutes waiver)
- Hutzel v. City of Jackson, 33 So. 3d 1116 (Miss. 2010) (applies Horton to bar late amendments asserting affirmative defenses after prolonged discovery)
- Grimes ex rel. Estate of Grimes v. Warrington, 982 So. 2d 365 (Miss. 2008) (MTCA immunity is an affirmative defense and failure to timely pursue it while litigating constitutes waiver)
- Burleson v. Lathem, 968 So. 2d 930 (Miss. 2007) (a Rule 12(b)(6) catch-all defense does not preserve other Rule 12 objections or affirmative defenses)
- Latham v. Johnson, 262 So. 3d 569 (Miss. Ct. App. 2018) (affirmative defenses must be specifically pled to give the plaintiff fair notice under Rule 8(c))