125 So. 3d 107
Miss. Ct. App.2013Background
- Sykes sued Home Health Care Affiliates, Inc. and its employee Zelp Gambleton for injuries from a May 8, 2006 automobile collision, alleging Gambleton acted negligently while working within the scope of employment.
- Sykes timely filed suit on May 8, 2009 and properly served Home Health under M.R.C.P. 4(h). Gambleton was never personally served.
- The county court granted summary judgment for Home Health, dismissing Home Health with prejudice and dismissing claims against Gambleton without prejudice, reasoning Sykes failed to serve Gambleton within 120 days and the statute of limitations had run as to him.
- The Lowndes County Circuit Court affirmed the county court’s grant of summary judgment.
- On appeal, the court addressed whether an employer can be sued under respondeat superior when the negligent employee has not been served and the statute of limitations has run as to the employee.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an employer may be sued under respondeat superior without joinder/service of the employee | Sykes: Employer is directly liable under respondeat superior; employee need not be served for suit against employer to proceed | Home Health: Respondeat superior is derivative; because Gambleton was not served and the statute of limitations ran as to him, Home Health cannot be held liable | Court: Employer and employee are jointly and severally liable; employee is not a necessary party, so failure to serve employee does not bar suit against employer |
| Whether summary judgment for employer was appropriate based solely on plaintiff’s failure to serve the employee within 120 days | Sykes: Timely suit and proper service on employer suffice; no applicable exception prevents suit | Home Health: Failure to timely serve employee and expired statute of limitations for employee preclude recovery | Court: No applicable exception (no release, res judicata, or other preclusive defense); summary judgment was improper |
Key Cases Cited
- Capital Transp. Co. v. McDuff, 319 So.2d 658 (Miss. 1975) (employer and employee jointly and severally liable under respondeat superior)
- Thomas v. Rounds, 137 So. 894 (Miss. 1931) (plaintiff may sue employer or employee or both under respondeat superior)
- Children’s Med. Group v. Phillips, 940 So.2d 931 (Miss. 2006) (employer can be sued without negligent employee being a party)
- AAA Cooper Transp. Co. v. Parks, 18 So.3d 909 (Miss. Ct. App. 2009) (respondeat superior suit need not include employee as party)
- J & J Timber Co. v. Broome, 932 So.2d 1 (Miss. 2006) (release of employer or employee can bar subsequent suit against the other)
- Gatlin v. Methodist Med. Ctr., Inc., 772 So.2d 1023 (Miss. 2000) (employer has right of indemnification against employee)
- Lowery v. Statewide Healthcare Serv., Inc., 585 So.2d 778 (Miss. 1991) (statute of limitations expired as to employee can be an exception barring suit against employer)
- McCoy v. Colonial Baking Co., Inc., 572 So.2d 850 (Miss. 1990) (res judicata/collateral estoppel can preclude respondeat superior claim)