Charlene Ray v. Ray A. Keith, et al.

1. Lee County and Ray A. Keith were granted summary judgment pursuant to Miss. Code Ann. § 11-
46-11 (Rev. 2002) after the trial court determined Charlene Ray failed to comply with the notice
requirements of the Mississippi Tort Claims Act (MTCA), Miss. Code Ann. §§ 11-46-1 to -23 (Rev.
2002 & Supp. 2003), and the statute of limitations had expired. Ray appeals the ruling of the circuit court.
Finding Lee County's motion for summary judgment was properly granted, this Court affirms the judgment
of the Circuit Court of Lee County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

2. On August 20, 1999, Ray was turning his vehicle onto an entrance ramp to U.S. Highway 45 in
Lee County when Ray A. Keith (Keith) failed to yield the right of way at a stop sign and struck Ray's
vehicle. Keith's place of employment was listed as "Lee County Fire Cord." on the accident report.

3. On April 17, 2000, Ray made her first offer to settle with Keith's private insurance carrier,
Metropolitan Life. A second settlement demand was made, again to Metropolitan Life, on July 25, 2000,
after Ray was able to correspond further with her physical therapist. The demand was rejected on July 31,
2000, by Tommy Whitt, a claims adjuster for Metropolitan Life. Two guest passengers in Ray's vehicle
settled with Keith's private insurance carrier. Ray, dealing only with Keith through his private insurance
carrier, Metropolitan Life, was unable to settle after a mutually agreeable amount could not be reached
between the parties.

4. After failed settlement negotiations, Ray filed suit against Keith on August 16, 2000. On September
12, 2000, Keith's counsel filed a motion requesting additional time to answer Ray's complaint because
Keith's employer, Lee County, was a real party in interest pursuant to the MTCA. On September 27,
2000, Keith filed his answer asserting defenses based upon his status as an employee under the MTCA.
An order dismissing the case was entered December 11, 2000.

5. On February 12, 2001, Ray filed a new complaint, which is the subject of this appeal, adding Lee
County as a party to the lawsuit. On June 14, 2001, Lee County and Keith filed a motion for summary
judgment on the ground that Ray's suit was barred by her failure to file suit within the one-year statute of
limitations. An order granting summary judgment in favor of Lee County and Keith was entered on

February 5, 2002. Ray timely filed her appeal asserting only one issue for review by this Court: Whether
the MTCA's one-year statute of limitations period is tolled when the plaintiff is unaware that the defendant
is an employee as defined under the MTCA acting within the course and scope of his employment at the
time of the accident.

DISCUSSION

6. This Court employs a de novo standard in reviewing a trial court's grant of summary judgment.
Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 65 (Miss. 1988). Summary judgment may
only be granted where there are no genuine issues of material fact such that the moving party is entitled to
judgment as a matter of law. M.R.C.P. 56(c). The trial court must carefully review all evidentiary matters
in the light most favorable to the non-moving party. Brown v. Credit Ctr., Inc., 444 So. 2d 358, 362
(Miss. 1983). If in this view, the moving party is entitled to judgment as a matter of law, summary judgment
should be granted. Id.

7. It is undisputed that Keith is an "employee" as defined by Miss Code Ann. § 11-46-1(f).1 As an
employee of Lee County, Keith failed to reveal to Ray that he was acting within the course and scope of
his employment at the time of the accident. This Court must determine whether, as a result of this failure
to reveal by Keith, Ray detrimentally relied on Keith's conduct.

8. In Reaves ex rel. Rouse v. Randall, 729 So.2d 1237 (Miss. 1998), this Court held substantial
compliance with the MTCA's notice provisions was sufficient. By replacing strict compliance with
substantial compliance, the Court "opened the door for the application of equitable estoppel in cases arising
under the Tort Claims Act." Trosclair v. Miss. Dep't of Transp., 757 So.2d 178, 181 (Miss. 2000).
See also Smith County Sch. Dist. v. McNeil, 743 So.2d 376 (Miss. 1999); Miss. Dep't of Pub.
Safety v. Stringer, 748 So.2d 662 (Miss. 1999); Ferrer v. Jackson County Bd. of Supervisors,
741 So.2d 216 (Miss. 1999); Carr v. Town of Shubuta, 733 So.2d 261 (Miss. 1999). "Equitable
estoppel requires a representation by a party, reliance by the other party, and a change in position by the
relying party." Westbrook v. City of Jackson, 665 So.2d 833, 839 (Miss. 1995) (citing Izard v.
Mikell, 173 Miss. 770, 774, 163 So. 498, 499 (1935)). "Inequitable or fraudulent conduct must be
established to apply the doctrine of equitable estoppel to a statute of limitations." Trosclair, 757 So. 2d
at 181 (citing Stringer, 748 So.2d at 665; Carr, 733 So. 2d at 265 (citing Mannino v. Davenport,
99 Wis.2d 602, 614, 299 N.W.2d 823, 828 (1981))).

9. In Trosclair, summary judgment was awarded in favor of the Mississippi Department of
Transportation (MDOT) after the circuit court determined the notice requirements of the MTCA had not
been met. 757 So. 2d at 178. Susan Trosclair and Bridget Bailes were injured in a one-car accident when
their car left the roadway on U.S. Highway 49, which was under construction at the time. Id. at 179. Their
attorney contacted MDOT within several months of the accident and was informed that the construction
was being done by a private contractor. Id. However, at the conclusion of the investigation and
approximately fourteen months after the accident, the attorney contacted MDOT again and learned that

it was, in fact, MDOT that had performed the renovations to the roadway. Id. Although the one year
statute of limitation had expired, Trosclair and Bailes filed a suit against MDOT. Id. The trial court granted
MDOT's motion to dismiss finding Trosclair and Bailes had failed to comply with the notice requirements
of the MTCA. Id. at 180.

10. On appeal, this Court found the circuit court failed to apply the substantial compliance test set out
in Reaves. 757 So. 2d at 180-81. This Court determined there was a material issue of fact as to whether
Trosclair and Bailes reasonably relied upon misrepresentations of MDOT. Id. at 181. Therefore, this
Court reversed the grant of summary judgment in favor of MDOT and remanded the case for further
proceedings. Id.

11. In the instant case, Ray has failed to establish that Lee County withheld any information regarding
Keith's employment nor has she shown that Lee County has provided her with misleading or inaccurate
information.

12. The federal courts have also considered whether the doctrine of equitable estoppel applies to toll
the statute of limitations under the Federal Tort Claims Act (FTCA). Applying federal law "a cause of
action accrues once the existence of an injury and its cause are known. The statute of limitations under the
FTCA commences to run from the date of accrual and does not wait until a plaintiff is aware that an alleged
tort-feasor is a federal employee." Gould v. United States Dep't of Health & Human Servs., 905
F.2d 738, 745 (4th Cir. 1990). "Courts almost uniformly have dismissed complaints where the plaintiff
failed to file a claim with the appropriate federal agency within the two-year limitation period, even though
plaintiff's failure to timely submit a claim resulted from his ignorance of defendant's status as a government
2 28 U.S.C. § 2401(b):

(b) A tort claim against the United States shall be forever barred unless it is presented in
writing to the appropriate Federal agency within two years after such claim accrues or
unless action is begun within six months after the date of mailing, by certified or registered
mail, of notice of final denial of the claim by the agency to which it was presented.

employee." Flickinger v. United States, 523 F. Supp. 1372, 1375 (W.D. Pa. 1981). Despite the harsh
impact of this rule on plaintiffs and "strong equitable considerations notwithstanding," courts have held the
two-year limitation period of 28 U.S.C. § 2401(b)2 cannot be tolled or waived. Lien v. Beehner, 453
F. Supp. 604, 606 (N.D.N.Y. 1978). See also Wilkinson v. United States, 677 F.2d 998, 1001
(4th Cir. 1982); United Missouri Bank South v. United States, 423 F. Supp. 571, 577 (W.D. Mo.
1976) (limitation provision of FTCA not to be extended by implication or by equitable considerations). The
Fourth Circuit has held because the burden is on the plaintiff to discover the employment status of the
tortfeasor and to bring suit within the applicable limitations period, the government is under no obligation
to notify every prospective plaintiff of its identity and involvement through its employees in all potential legal
actions. Gould, 905 F.2d at 745. See also Zeleznik v. United States, 770 F.2d 20, 22-23 (3d Cir.
1985); Van Lieu v. United States, 542 F. Supp. 862, 866 (N.D.N.Y. 1982); Dessi v. United
States, 489 F. Supp. 722, 725 (E.D. Va. 1980).

13. In Gould, the United States District Court for the District of Maryland granted summary judgment
in favor of the U.S. Department of Health and Human Services finding Gould's claim was time barred under
28 U.S.C. § 2401(b). 905 F.2d at 740. The decedent was treated by physicians employed by the U.S.
Public Health Service. Id. Gould sued the physicians claiming their malpractice caused the decedent's

death; however, Gould failed to file suit within the two-year statute of limitation. Id. at 740-41. Gould
argued that she had no knowledge of the physicians' status as federal employees and that therefore the
statute of limitations should be tolled until she was made aware of that fact. Id. at 741. The district court
rejected her argument and granted summary judgment in favor of the U.S. Department of Health and
Human Services. Id.

14. The United States Court of Appeals for the Fourth Circuit affirmed the district court's ruling finding
that even though Gould's failure to timely file her claim was the result of her lack of knowledge regarding
the employment status of the physicians, Gould, nonetheless, failed to timely file her claim within the two year
statute of limitation period. Id. at 741-42. The Fourth Circuit found Gould did not exercise due
diligence in determining the true parties of the lawsuit or in determining the employment status of the
physicians. Id. at 745. The Fourth Circuit relied on the Second Circuit in reaching its decision:

The Second Circuit held in Kelley v. United States, 568 F.2d 259, 262 (2d Cir.), cert.
denied, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978), that when the
government intentionally delays in order to invoke the statute of limitations, the
statute is tolled. In the case at bar, however, there is no evidence that the government
stalled the discovery process or otherwise blocked plaintiffs from obtaining information
within the limitations period.

Indeed, the evidence is to the contrary. While it is true that the employment
status of the attending physicians was not made known to plaintiffs at the time treatment
was given, it is also true that plaintiffs made no inquiry as to the physicians' employment
status until August 1983. When asked, the government responded promptly to plaintiffs'
request for this information. Unfortunately, such requests were not made until the statute
of limitations had expired.
Gould, 905 F.2d at 745 (emphasis added).

15. In the case sub judice, it is also evident that Ray did not exercise due diligence in determining the
true parties of the lawsuit or in determining Keith's employment. The accident report showed that Keith
was employed by Lee County; however, Ray failed to properly consider Lee County as a party in interest
to her lawsuit.

16. Although federal courts apply strict compliance to the FTCA and Mississippi applies substantial
compliance to the MTCA, the federal cases are quite significant. There is no evidence in the record that
suggests Ray made any attempt to determine the employment status of Keith. There is also no evidence
of intentional delay by Lee County which would toll the statute. Because there is no evidence that Lee
County misled Ray, we affirm the trial judge's grant of summary judgment on the grounds that Ray failed
to substantially comply with the notice requirements of the MTCA, and therefore, the statute of limitations
had expired.

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Click the case caption above for the full text of the Court's opinion.

¶18. AFFIRMED.