Kinsey v. Pangborn Corp.
2011 Miss. LEXIS 534
| Miss. | 2011Background
- Ted Watkins executed a Last Will naming ex-stepdaughter Diana Kinsey executrix; Kinsey appointed Oct 2003 and estate discharged May 2004.
- Kinsey filed a wrongful-death action Apr 2007 in circuit court; prior related silica mass-tort Spencer involved Watkins as a plaintiff but no wrongful-death claim filed before death.
- Probate order authorized Kinsey to administer Watkins’s estate; Kinsey did not substitute as real party in Spencer.
- Spencer was dismissed without prejudice in 2006; subsequent dismissal resolved claims against Forman Perry Defendants and others per mass-tort proceedings.
- Kinsey argued the wrongful-death suit was timely under the saving statute; defendants argued claims were time-barred and not tolled by Spencer’s dismissal.
- Circuit court granted summary judgment holding the three-year limitations period barred the action and saving statute did not apply; Kinsey appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Kinsey's action barred by the statute of limitations? | Kinsey argues tolling or saving-statute relief preserves claims. | Defendants contend claims accrued in 2003–2006 and were time-barred; no tolling. | Yes; time-barred. |
| Does the saving statute (15-1-69) apply to Kinsey's action? | Kinsey relies on saving statute to refile as new action. | Saving statute does not apply because this is a new independent wrongful-death action by Kinsey, not a refiling of Watkins's prior action. | No; saving statute does not apply. |
Key Cases Cited
- Clark Sand Co., Inc. v. Kelly, 60 So.3d 149 (Miss. 2011) (saving statute does not apply when action is a new independent wrongful-death action)
- Caves v. Yarbrough, 991 So.2d 142 (Miss. 2008) (wrongful-death statute encompasses survival-type claims and wrongful-death claims in one suit)
- McLemore, 54 So.3d 833 (Miss. 2010) (tolling requires substantial and unreasonable delay plus active participation; mere delay is not waiver)
- Janssen Pharmaceutica v. Armond, 866 So.2d 1092 (Miss. 2004) (severed misjoined claims that arise from distinct events; aiding saving-statute analysis)
- Smith, 926 So.2d 839 (Miss. 2006) (saving statute treated as matter of form for some dismissals; affects tolling and refiling analysis)