Legal Newsline

Saturday, December 7, 2019

Inactivity of plaintiffs attorneys leads to dismissal of Miss. asbestos case

By Heather Isringhausen Gvillo | Apr 28, 2014


JACKSON, Miss. (Legal Newsline) - The Supreme Court of Mississippi recently affirmed a lower court's dismissal of an asbestos lawsuit with a particularly inactive plaintiffs' counsel, deciding that the statute of limitations had expired because the doctrine of equitable tolling should not be applied.

Justices Jess H. Dickinson, Ann H. Lamar and Josiah Dennis Coleman ruled in favor of defendant Illinois Central Railroad Company.

Coleman delivered the April 24 opinion affirming Judge Jeff Weill's Feb. 12, 2013, decision in the Hinds County Circuit Court, which found that the plaintiffs' second complaint was filed beyond the statute of limitations.

According to the opinion, Harold Burch worked for Illinois Central from 1950 until 1983, during which time he was allegedly exposed to asbestos and developed asbestosis and lung cancer. He died in August 2006.

Following his death, Harold Burch's wife, Frances Burch, filed a wrongful death lawsuit against Illinois Central in April 2009.

She was represented by attorneys John Timothy Givens, Timothy W. Porter and Patrick C. Malouf of the Porter & Malouf law firm.

She died in September 2011 while the suit was still pending. As a result, Illinois Central filed a suggestion of death.

In such situations as this, Rule 25 of Mississippi's Rules of Civil Procedure state that a claimant must file a motion for substitution within 90 days after the death of a party is suggested or the claim will be dismissed without prejudice.

Following Frances Burch's death, her attorneys failed to even respond to the suggestion of death, and the 90-day statute of limitations for substitution expired on Jan. 26, 2012.

Then on Feb. 10, 2012, Illinois Central filed a motion to dismiss the action, which resulted in no immediate response.

In fact, Burch's attorneys did not reappear until July 11, 2012, after the court ordered them to respond to the motion to dismiss.

In their response, they did not attempt to show good cause for failing to substitute a party.

Instead, their response, filed more than five months after Illinois Central filed its motion to dismiss and nearly 10 months after Frances Burch died, stated that they had drafted a motion for substitution but failed to file the document by simple oversight.

As a result, the trial judge dismissed the first suit on the grounds that "inadvertence and mistake of counsel do not constitute excusable neglect," Coleman wrote.

Burch's attorneys quickly filed a second wrongful death complaint the following day on Sep. 20, 2012, on behalf of Harold Burch's children, James Allen Burch, William Harold Burch and Nancy Burch McCloud

However, the plaintiffs attorneys then immediately became unresponsive again, Coleman explained.

Illinois Central responded by filing another motion to dismiss on Oct. 3, 2012, which didn't garner a response by plaintiffs counsel until Jan. 31, 2013 - four days before the hearing regarding the motion to dismiss.

"Under these circumstances," Coleman wrote, "the trial judge did not find evidence to support the plaintiffs' argument regarding the doctrine of equitable tolling."

"In essence," he continued, "the plaintiffs 'slept on their rights' by failing to substitute a party for Frances, ignoring the suggestion of death and ignoring the motion to dismiss."

Illinois Central filed its motion to dismiss asserting the statute of limitations had expired, noting the three-year statute of limitations provided to file asbestos wrongful death complaints.

As a result, the plaintiffs appealed, claiming the statute of limitations had not yet expired because it was tolled while the original lawsuit filed by Frances Burch was pending, the opinion states.

Coleman stated that the application of statute of limitations rules is a question of law. According to the Federal Employers Liability Act, the time limit for filing an asbestos claim is "three years from the day the cause of action accrued."

Following those guidelines, Coleman observed that Frances Burch filed her original complaint in a timely manner.

Therefore, the plaintiffs claimed the statute of limitations was tolled while the original case was pending, meaning they were still within the statute of limitations when the second complaint was filed one day after the first suit was dismissed.

On the other hand, Illinois Central responded by arguing that the doctrine of equitable tolling does not apply to this case and the statute of limitations had expired when the second lawsuit was filed more than six years after Harold Burch died.

It claimed the plaintiffs "slept on their rights" which resulted in their first suit's dismissal.

Citing the Burnett decision, Coleman stated that when a claimant files a timely lawsuit and the case is later dismissed, the statute of limitations is tolled during the pendency of the state action.

In order to determine whether statute of limitations should be tolled, Coleman added, the Supreme Court ruled in Burnett that the court must decide whether "congressional purpose is effectuated by tolling the statute of limitations in given circumstances."

"Statutes of limitations are primarily designed to assure fairness to defendants," the opinion states. "Such statutes promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded and witnesses have disappeared."

Citing the Knight decision, Coleman added that the statute of limitations does not toll when a claim is dismissed without prejudice for failing to prosecute, leaving the parties in the same position as if they had never filed the suit.

He elaborated, stating that if the court allowed the statute to toll in situations like the one at hand, it would provide the plaintiffs with an opportunity to abuse the process and possibly allow cases to be dismissed only to file a new claim years later, potentially leading to unjust results.

"Our narrow holding here is merely that dismissal without prejudice for want of prosecution does not toll the statute of limitations," the opinion stated.

Defense attorney Stephanie Camille Reifers of Boyle Brasher LLC represented Illinois Central.

From Legal Newsline: Reach Heather Isringhausen Gvillo at

Want to get notified whenever we write about ?

Sign-up Next time we write about , we'll email you a link to the story. You may edit your settings or unsubscribe at any time.