Empire Abrasive Equipment Corp. v. Morgan
87 So. 3d 455
| Miss. | 2012Background
- Morgan Sr. diagnosed with silicosis on 6/2/2002 and filed a PI suit with 141 others against 88 defendants; he died 9/14/2002; no death suggestion or survival/wrongful-death pleading filed in the PI case.
- Arthur et al. PI suit was removed to federal court and later remanded; dismissal occurred 5/23/2006 under Canadian National v. Smith; no substitution of Morgan Sr. beneficiaries or death notice in Arthur.
- Morgan Jr. filed a wrongful-death action on 5/23/2007 against 32 defendants, individually and for all wrongful-death beneficiaries; complaint lacked decedent identifiers and discovery details.
- Defendants filed summary-judgment motion on 11/4/2009 arguing the wrongful-death statute of limitations expired in 9/14/2005; trial court denied and defense sought interlocutory appeal.
- Court applied Horton/ Spann/Jones line of cases to assess waiver of statute-of-limitations defense; held Morgan Jr.’s action is time-barred because savings statute does not apply and actions are separate and distinct.
- No notice of death or substitution of Morgan Jr. as real party in interest in Arthur; wrongful-death and survival claims accrued on different dates; analysis hinges on tolling and whether defendants substantially participated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the statute-of-limitations defense was waived | Morgan Jr. argues waiver due to delay and participation | Defendants argue no waiver; cross-appeal not required | No waiver; delay insufficient and no substantial participation shown |
| Whether Morgan Jr.’s wrongful-death suit is timely under tolling rules | Wrongful-death action tolled by pending PI action | Savings statute does not toll as actions are separate | Timeliness barred; savings statute inapplicable; tolling did not apply |
| Whether the wrongful-death action is barred by statute of limitations under §11-7-13 and tolling rules | Wrongful-death claims timely under tolling | Applicable three-year periods run from decedent’s death; no tolling | Barred; limitations run and not tolled; action time-barred |
Key Cases Cited
- Clark Sand Co., Inc. v. Kelly, 60 So.3d 149 (Miss. 2011) (wrongful-death actions may be separate and distinct from PI actions; tolling analysis hinges on timing)
- Kinsey v. Pangborn, 78 So.3d 301 (Miss. 2011) (survival vs. wrongful-death accrual; separate-and-distinct actions; tolling considerations)
- Spann v. Diaz, 987 So.2d 443 (Miss. 2008) (discretion on waiver of statute-of-limitations defense depending on delay and prejudice)
- Jones v. Fluor Daniel Services Corp., 32 So.3d 417 (Miss. 2010) (waiver/notice issues; timing of defense assertion; appellate review)
- Horton v. MS Credit Center, Inc., 926 So.2d 167 (Miss. 2006) (waiver of affirmative defenses when defendant’s failure to pursue defense timely and substantial participation)