author: GRAVES, J.,

text:
    Nhut Van NGUYEN, as Natural Father and Executor of the Estate of Phung Thi Kim Nguyen, Chau Huynh, Heiu Nguyen, John Nguyen, Thrang Nguyen and Tran Nguyen v. MISSISSIPPI VALLEY GAS COMPANY.
    No. 2000-CA-01246-SCT.
    Supreme Court of Mississippi.
    May 2, 2002.

      Wayne E. Ferrell, Jr., Andre Francis Ducote, Jackson, attorneys for appellant.
    Kay Freeman Dodge, Alan W. Perry, Jackson, attorneys for appellee.
    Before McRAE, P.J., WALLER and GRAVES, JJ.
   GRAVES, J.,

for the Court.

¶ 1. This matter is an appeal by Nhut Van Nguyen, as natural father and executor of the estate of Phung Thi Kim Nguyen, Chau Huynh, Heiu Nguyen, John Nguyen, Thrang Nguyen and Tran Nguyen, (“Nguyen”) from an order of the Circuit Court of the First Judicial District of Hinds County, denying Nguyen’s motion for reconsideration and upholding its prior order granting Mississippi Valley Gas Company’s motion to dismiss or, in the alternative, for summary judgment Nguyen raises one issue:

WHETHER THE TRIAL COURT ERRED BY FAILING TO APPLY THE RELATION BACK PROVISION OF M.R.C.P. 15(c).

FACTS

¶ 2. On September 21, 1995, Phung Thi Kim Nguyen (“Kim”) was visiting defendant, Van Cuong (“Cuong”), at Fantasy Nails nail salon located at 1015 Ellis Avenue, Jackson, Mississippi. An explosion and fire erupted at approximately 2:30 p.m. while Kim was in the rear storage area of the salon and Cuong was outside the building. Cuong attempted to rescue Kim from the fire, but was unable to do so due to the extreme heat emitted by the explosion and fire.

¶ 3. Kim was pronounced dead from carbon monoxide poisoning and extreme heat due to what Nguyen alleges was a vapor flash fire caused by the ignition of acetone which was left in open containers. Nguyen alleges that the gas operated water heater ignited the fumes of acetone.

¶ 4. The original complaint in this action was filed on September 20, 1996, approximately one year after the explosion and fire that resulted in Kim’s death. Paragraph 12 of the original complaint named as fictitious parties, defendants A through M, and identified those parties as follows:

governments; sub-agencies of governments; individuals; partnerships; corporations; sellers; retailers; wholesalers; repairers; servicers; manufacturers; or entities (who are unidentified at this time) and may have been negligent, may have caused and/or may be responsible for the accident in question and Plaintiffs’ decedent’s death. Plaintiffs intends (sic) to amend this Complaint and name and serve Defendants A through M once they are identified and once their liability is ascertained.

¶ 5. On or about September 10, 1998, a motion for leave of court to file an amended complaint was filed. On or about October 2, 1998, an agreed order for leave of court to file an amended complaint was entered. The amended complaint, however, was not filed until on or about May 18, 1999.

¶ 6. The amended complaint named No-ram Energy Corp., f/k/a Entex, Inc. (“No-ram”) as a defendant. The amended complaint alleged that Noram, as the supplier of natural gas to Fantasy Nails, negligently caused, permitted, or allowed natural gas to ignite and/or explode, and Noram’s negligence was a contributing proximate cause of Kim’s death. The amended complaint asserted claims against fictitious parties, defendants H through M, and defined those parties as they were defined in the original complaint.

¶ 7. A third amended complaint was filed on or about May 28, 1999. The third amended complaint again named Noram as the supplier of natural gas service to Fantasy Nails. The third amended complaint continued to assert allegations against fictitious parties, defendants H through M, and defined those parties exactly as in the previous complaint.

¶ 8. Approximately two months later, a joint motion for order of dismissal without prejudice, dismissing Noram as a defendant, was filed on or about July 21, 1999. The order dismissing Noram was not entered until on or about February 25, 2000. In the meantime, a motion for leave to file a fourth amended complaint was filed. The trial court granted that motion and on or about September 15, 1999, the fourth amended complaint, which, for the first time, named Mississippi Valley Gas Company (“MVG”) as a defendant, was filed. The fourth amended complaint also continued to assert claims against fictitious parties, defendants H through M, as they were defined in the previous complaints.

¶ 9. In a sworn affidavit dated October 14, 1999, Richard W. Wise, agent for service of process for MVG, stated

MVG had no knowledge of the claim filed by [Nguyen] until approximately July 1999, when I received a phone call from an attorney for [Noram].
[Noram’s] attorney informed me during that telephone call that [Noram] was preparing to file a motion to dismiss based on the fact that it was not the supplier of natural gas to the location at issue and wanted to give MVG a “heads up” that it may be sued.

¶ 10. On October 15, 1999, MVG filed a motion to dismiss or, in the alternative, for summary judgment. In that motion, MVG sought dismissal with prejudice from the litigation because MVG was not provided notice of the litigation within the three-year statute of limitations. The trial court granted MVG’s motion to dismiss on May 8, 2000. Nguyen filed a motion for reconsideration, but the trial court denied that motion. It is from that decision that Nguyen now appeals.

PARTIES’ CONTENTIONS

¶ 11. Nguyen argues that the claims asserted against MVG are not barred by the statute of limitations because the relation back provision of M.R.C.P. 15(c) applies in this case. Nguyen states that the trial court granted MVG’s motion to dismiss or in the alternative, for summary judgment based upon the statute of limitations for this action, which expired on September 21, 1998. However, Nguyen argues that the trial court erred when it failed to apply the relation back provisions of M.R.C.P. 15(c), which allows for the bringing of a claim outside the statute of limitations.

¶ 12. Rule 15 states:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by Rule 4(h) for the service of the summons and complaint, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and
(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. An amendment pursuant to Rule 9(h) is not an amendment changing the party against whom a claim is asserted and such amendment relates back to the date of the original pleading.

M.R.C.P. 15(c). Nguyen further references the comment to M.R.C.P. 15(c) which states that

An intended defendant who is notified of an action within the period allowed by Rule 4(h) for service of a summons and complaint may not defeat the action on account of a defect in the pleading with respect to the defendant’s name, provided that the requirements of clauses (1) and (2) have been met. If the notice requirement is met within the Rule 4(h) period, a complaint may be amended at any time to correct a formal defect such as a misnomer or misidentification.

M.R.C.P. 15 cmt.

¶ 13. Through discovery, Nguyen was informed that Noram supplied natural gas to the Fantasy Nails location. Nguyen states that the third amended complaint was filed on May 18, 1999, substituting Noram for one of the fictitious defendants listed in the original complaint pursuant to M.R.C.P. 9(h). Shortly after filing and serving the third amended complaint, Nguyen claims Noram advised that it did not provide natural gas service to the premises occupied by Fantasy Nails. As a result, Nguyen dismissed Noram and filed a fourth amended complaint to correct “the misnomer.” The fourth amended complaint was filed on September 15, 1999. Id.

¶ 14. Nguyen states that where a party is mistakenly named, an amendment will relate back if within the time period for service under M.R.C.P. 4(h) if the correct party knew of the existence of the action and knew or should have known, but for the mistake, that the action would have been brought against it. In support, Nguyen states, “merely seventy-two (72) days passed between the filing of the third amended complaint and the end of July, when the fourth amended complaint was filed and served.” Nguyen claims that MVG “confessed knowledge” of the cause of action within the statutory time period when “MVG’s representative testified through affidavit that it was advised by Noram’s counsel of the cause of action in July of 1999.” Therefore, Nguyen contends that MVG had knowledge of the litigation within the time frame for service of the summons and complaint for the relation back privilege of M.R.C.P. 15(c) to apply.

¶ 15. Nguyen posits that the claims alleged against MVG arose from the same transaction which was the basis of the third amended complaint. Additionally, Nguyen states that there was no impending trial date when the trial court ruled on the motion to dismiss and there was no evidence that MVG would suffer any prejudice in maintaining its defense. Finally, Nguyen argues that MVG had knowledge of the claim within 120 days of the filing of the Third Amended Complaint and knew, or should have known, that but for the misnomer of parties that it would have been named as a defendant in this action. Accordingly, Nguyen claims that it should have been allowed to proceed against MVG.

¶ 16. MVG maintains that the applicable three-year statute of limitations expired on September 21, 1998, almost a year before the fourth amended complaint, which, for the first time named MVG as a defendant, was filed. MVG agrees that M.R.C.P. 15(c) governs this situation, but argues that the “prescribed limitations period” under Rule 15(c) includes only the three year statute of limitations plus 120 days for service of the summons and complaint under Rule 4(h).

¶ 17. MVG refers to Brown v. Winn-Dixie Montgomery, Inc., 669 So.2d 92 (Miss.1996), stating that the 120 day period provided for under Rule 15(c) attaches to the end of the statute of limitations period. MVG argues that according to the decision in Brown, the 120-day time period is added to the end of the limitations period and not arbitrarily to any other filing date, as asserted by [Nguyen] in the instant litigation. As a result, MVG argues that “since [Nguyen] did not file their claim against MVG or any other gas supplier within 120 days of the running of the statute, the relation back language of Rule 15(c) has no bearing.”

¶ 18. MVG further asserts that the contact in July, 1999, between Noram’s counsel and MVG’s counsel was “well outside the ‘prescribed limitations period’ of three years and 120 days.... ” “[B]ecause MVG had no notice of the institution of the suit until July 1999, MVG had no way of knowing that, because of the mistaken identity, [Noram] had been identified as the responsible party.” Thus, MVG argues that Nguyen cannot meet the requirements of M.R.C.P. 15(c), and the claims against MVG were not timely filed and were properly dismissed by the trial court.

¶ 19. MVG also argues that the fourth amended complaint did not comply with the requirements of Rule 9(h) in order to relate back to the date of the original complaint. MVG states that the fourth amended complaint merely replaced the claims against Noram with identical claims against MVG. Also, the fictitious parties sued in the third amended complaint are again sued and defined identically in the fourth amended complaint.

¶20. MVG makes an additional argument that Nguyen was not reasonably diligent in amending the complaint in order for the amendment to relate back to the date of the original complaint. MVG states that there were a number of ways for Nguyen to determine the supplier of natural gas to the Fantasy Nails nail salon location. MVG suggests that Nguyen could have contacted other natural gas customers in the area, the Public Service Commission, the City of Jackson, or could have simply asked the owner of the property. Yet, it was almost four years after the fire and explosion before Nguyen sued the correct entity that provided natural gas service to the Fantasy Nails nail salon. MVG argues that Nguyen’s lack of diligence is a separate basis for determining that the amendment was not an amendment to substitute a fictitious party under Rule 9(h).

¶ 21. Finally, MVG argues that Nguyen did not comply with the policy of Rule 9(h) in order for any amendment to relate back to the date of the original complaint because Nguyen did not assert a proper claim against fictitious parties in its original complaint or any amendment thereto.

¶ 22. In response, Nguyen argues that MVG’s argument lacks merit. First, because it is based on Brown v. Winn-Dixie, Montgomery, Inc., 669 So.2d 92 (Miss.1996), which, Nguyen claims, follows abandoned federal law. Second, Nguyen states that nothing in the Rule or the comments specify that the intent of the amendment to MRCP 15 was to extend the statute of limitations 120 days as to misnamed or misidentified defendants. Nguyen argues that a defendant must simply be named in a complaint prior to there being any revelation of a misnomer or misidentification. Nguyen further argues that pursuant to Estes v. Starnes, 732 So.2d 251, 252 (Miss.1999) MVG’s interpretation of Rule 15(c) defeats the liberal pleadings practice set forth in the rules and upheld by this Court.

¶ 23. Nguyen also urges this Court to find that MVG’s assertion that Nguyen did not conduct a reasonably diligent inquiry as to the supplier of natural gas erroneous. Nguyen states that it is clearly indicated in the record that Nguyen’s counsel retained a forensic engineering firm to investigate the subject incident. As a result of that firm’s investigation, Nguyen was advised that Noram provided natural gas service to Fantasy Nails. Thereafter, Nguyen amended their complaint to assert claims against Noram and once was it was discovered that Noram was not the provider of natural gas service to the Fantasy Nails location, Nguyen dismissed Noram and amended the complaint to correct the mis-identification.

DISCUSSION

¶ 24. This Court reviews questions of law, which include summary judgments and motions to dismiss, de novo. City of Jackson v. Perry, 764 So.2d 373, 375 (Miss.2000) (citing Cooper v. Crabb, 587 So.2d 236, 239 (Miss.1991)). The decision to grant or deny a motion to dismiss is in the discretion of the trial court and will not be reversed unless that discretion is abused. Roebuck v. City of Aberdeen, 671 So.2d 49, 51 (Miss.1996).

¶ 25. Amendment of complaints is governed by Rule 15 of the Mississippi Rules of Civil Procedure. M.R.C.P. 15(c) was amended July 1, 1998, to state that the relation back period includes the time permitted for service of process under Rule 4(h). M.R.C.P. 15(c) has been construed as allowing the relation back of additional parties where the newly named party was aware of the proceedings during the statutory time limit for bringing suit, knew or should have known that but for a mistake in identity he would have been named, and would not be prejudiced in his defense of his case. Estes v. Starnes, 732 So.2d 251 (Miss.1999) (emphasis added).

¶ 26. In the case sub judice, the original complaint named fictitious parties, defendants A through M and specifically stated that Nguyen “intends to amend this complaint and name and serve Defendants A through M once they are identified and once their liability is ascertained.” The record contains an affidavit filed by Nguyen’s attorney which states in pertinent part,

In my capacity as attorney for the Plaintiffs, I hired the firm of MeDowell/Ow-ens Engineering of Houston, Texas, as a liability expert witness is (sic) this case. Part of McDowell/Owens’ investigation was to discover the providers of utility services to the business known as Fantasy Nails which was located in Jackson, Mississippi. As a result of that firm’s investigation, I was advised that Noram Energy Corporation, formerly known as Entex, Inc., was the supplier of natural gas to the Fantasy Nails business. Based upon that information, I filed an amended complaint on behalf of the Plaintiffs on May 19, 1999, substituting Noram Energy Corporation for a fictitious Defendant. Shortly thereafter, I was contacted by Mr. Kaufman, Noram’s attorney, who advised me that Noram was not the supplier of natural gas to Fantasy Nails business. Further, Mr. Kaufman advised me that Mississippi Valley Gas was in fact the supplier of natural gas to Fantasy Nails. On July 21, 1999, I dismissed Noram as a Defendant in this case and, upon the information that I was provided, filed a Fourth Amended Complaint against Mississippi Valley Gas on September 15,1999.
The information that Noram was the correct Defendant was provided by a reliable source and it is my opinion that it was justified in relying on that information.

¶ 27. Accordingly, an amended complaint was filed substituting Noram for one of the fictitious defendants listed in the original complaint. The amended complaint also reduced the number of fictitious defendants from A through M to fictitious defendants H through M. Thus, M.R.C.P 9(h), which governs fictitious parties, comes into play.

¶ 28. The purpose of Rule 9(h) specifically, is to toll the statute of limitations when, in good faith, the plaintiff is unable to identify unknown defendants. Rule 9(h) states,

When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered the process and all pleadings and proceedings in the action may be amended by substituting the true name and giving proper notice to the opposing party.

M.R.C.P. 9(h).

¶ 29. After discovering Noram was not the correct party, Nguyen replaced Noram with MVG in the fourth amended complaint. The fourth amended complaint also continued to name fictitious defendants H through M and defined those parties as in the previous complaint. Thus, it appears that Nguyen did not “substitute” a party in accordance with Rule 9(h), but merely “chang[ed] the party against whom a claim [was] asserted” pursuant to Rule 15(c). By replacing all references to Noram with MVG, Nguyen did not satisfy the requirement of M.R.C.P. 9(h). Once it is determined that the provisions of 9(h) have not been satisfied, any amendment made to add additional parties must satisfy the provisions of Rule 15(c) regarding “changing the party against whom a claim is asserted” to prevent time bar by the statute of limitations. Womble v. Singing River Hosp., 618 So.2d 1252, 1267 (Miss.1993). As such, the amendment is governed by Rule 15(c).

¶ 30. In Womble, the heirs of Helen Womble filed a wrongful death action against Singing River Hospital, the hospital’s board of trustees, Dr. Clyde Gunn and the hospital’s emergency room physicians and nurses (John Does 1-5). The complaint alleged the John Doe defendants to be unknown at that time. Upon discovering the names of the emergency room physicians some two years and eight months after the death of Helen Womble, an amended complaint was filed substituting those physicians for the John Doe defendants. The trial court granted summary judgment to the emergency room physicians on the ground of time bar. Ms. Womble’s heirs appealed the grant of summary judgement made by the trial judge. This Court, however, refused to apply Rule 9(h) and allow the amendment to relate back stating:

there were numerous medical records on file at [the Hospital] indicating the extent to which [the emergency room doctors] had participated in the treatment of Helen Womble. A reasonably diligent inquiry by the appellants into the history of the deceased’s medical treatment would have revealed to appellants the identities of the persons they sought to identify categorically as “Emergency Room Physicians and Nurses (John Does 1-5).” Therefore, we hold that appellants were not ignorant of the identities of appellees in the sense contemplated by Rule 9(h). Consequently, no relief is provided appellants from the running of the statutory period by Rule 9(h).

Womble, 618 So.2d at 1267. After determining that the requirements of Rule 9(h) were not satisfied, Womble examined the amended complaint to determine if the provisions of Rule 15(c) were satisfied. The Court found that the provisions of Rule 15(c) were satisfied based on the fact that the emergency room physicians had notice of the suit and knew or should have known that but for a mistake concerning their identities, they would have been included in this suit when it was originally filed. Id. at 1268. The Court also stated that the defendants were not prejudiced in maintaining a defense on merits since the record showed they were already preparing with retained counsel to defend themselves approximately three weeks after the original complaint was filed. Id.

¶ 31. In examining whether the requirements of Rule 15(c) were satisfied in the present case, one first finds that the amended complaint did, in fact, arise out of the conduct, transaction, or occurrence, namely the fire and explosion at Fantasy Nails, as set forth in the original complaint. Specifically, the amended complaint named Noram as the natural gas supplier to Fantasy Nails and alleged that Noram negligently caused, permitted, or allowed natural gas to ignite and/or explode, and Noram’s negligence was a contributing proximate cause of Kim’s death. MVG does not contest that the claims asserted against it in the fourth amended complaint arose out of the same occurrence as pled in the original complaint.

¶ 32. Second, one must determine whether the party received such notice that he would not be prejudiced in maintaining his defense on the merits. Because the amended complaint changed a party against whom a claim was asserted in the original complaint, one must also determine if the amendment occurred within the time period provided by Rule 4(h) for service of the summons and complaint. Rule 4(h) states,

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.

M.R.C.P. 4(h). The applicable three year statute of limitations period in this action would have expired on September 21,1998. MVG was not named as a defendant until September 15, 1999. As such the case at bar is distinguishable from Womble in that MVG had not retained counsel nor discussed the possibility of litigation within the statutory time period. In fact, it was almost four years from the date of the fire and explosion before MVG was named as a defendant. Even the “heads up” notice from Noram’s counsel in July 1999 would have been outside the prescribed three year statutory time period.

¶ 33. Although it can be argued that MVG knew about the explosion and fire, the fact is no claims were asserted against any natural gas provider within the statutory time period. Therefore, it cannot be said that MVG “knew or should have known” that Noram was incorrectly identified as the natural gas provider.

¶ 34. Additionally, the relation back privilege provided for fictitious parties under Rule 15(c)(2) requires the plaintiff to actually exercise a reasonably diligent inquiry into the identity of the fictitious party. Doe v. Mississippi Blood Servs., Inc., 704 So.2d 1016, 1019 (Miss.1997). This Court will make a strict inquiry as to whether the plaintiff exercised reasonable diligence in ascertaining the fictitious party’s real identity. Doe, 704 So.2d at 1019. This due diligence must occur prior to the running of the statute of limitations and must entail the actual exercise of due diligence rather than a mere finding that the party could have found the defendant’s identity if it had exercised due diligence. Id.

¶ 35. In Doe, the daughter of a woman who died of AIDS brought a wrongful death action against, among others, United Blood Services (UBS), a blood bank, and fifty (50) unidentified defendants. Doe’s decedent had received tainted blood in a transfusion during an operation at Forrest General Hospital in 1983, was diagnosed with AIDS in 1987 and died as a result thereof on January 1, 1991. Doe filed a wrongful death action on December 30, 1993, and all parties agreed that the applicable statute of limitations would have ran on January 1,1994.

¶ 36. Doe’s counsel identified UBS as having supplied blood to Forrest General at the relevant time pursuant to a telephone conversation with the hospital on December 27, 1993. An employee of Doe’s counsel telephoned the hospital and was told “by a person answering the phone” that she was not certain that UBS had provided blood to the hospital in 1982 and 1983, but that it had been providing blood and blood products to the hospital for many years. Doe’s counsel did not request medical records from the hospital until December 28,1993 and cancelled that request on January 4,1994.

¶ 37. On February 2, 1994, UBS removed the ease to federal court and moved to dismiss the litigation on the basis that it did not supply blood to Forrest General during the relevant time period. Thereafter, on July 8, 1994, Doe moved to dismiss UBS and join Mississippi Blood Services (MBS). Doe, thereafter, on July 29, 1994, amended her complaint naming MBS as the supplier of the subject blood. The federal court then remanded the action back to state court, the substitution having-defeated diversity jurisdiction.

¶ 38. On December 2, 1994, upon motion of MBS, the Circuit Court of Hinds County dismissed MBS on the basis that Doe did not truly substitute MBS for a John Doe defendant and that Doe was not reasonably diligent in obtaining the identity of the supplier of the blood. Doe appealed MBS’s dismissal.

¶ 39. On appeal, the Court ruled that Doe had not substituted MBS for a fictitious party, but had simply replaced all references to UBS with MBS. Id. at 1017-18. Thus, the Court ruled that Doe had not met the requirements of M.R.C.P. 9(h), but had merely substituted MBS for a named party. Id. at 1018. The complaints filed against both UBS and MBS were identical except for the substitution of the parties’ names. Id. (citing Schultz v. Romanace, 906 S.W.2d 393, 395 (Mo.Ct.App.1995) (holding that plaintiffs purported substitution for John Doe defendants was merely an attempt to join new parties after the expiration of the statute of limitations)). Further, the Court noted that the same fictitious parties named in the original complaint were named as fictitious parties in the amended complaint which made allegations against MBS. Thus, the Court ruled that Doe had not met the requirements of Rule 9(h) in order for the amendment to relate back to the original complaint.

¶ 40. In addition to Doe’s failure to properly substitute parties, the Doc Court, on appeal, ruled that the dismissal of MSB was proper due to Doe’s failure to timely or diligently determine the proper parties. The Court, citing Womble v. Singing River Hosp., 618 So.2d at 1266-68, stated that a “reasonable diligence” test was proper to determine the proper substitution of unknown parties. Doe, 704 So.2d at 1018.

¶ 41. Nguyen failed to file the amended complaint within the statutory time period. Additionally, although Nguyen arguably exercised due diligence in ascertaining the correct defendant, the fact remains that no claims were asserted against any natural gas provider within the statutory time period. Because neither Noram nor MVG received notice of the institution of this action within the statutory time period, the trial court did not abuse its discretion in determining that all claims against MVG were time barred.

CONCLUSION

¶ 42. Based on the foregoing, the trial court correctly granted MVG’s motion to dismiss and denied Nguyen’s motion for reconsideration. Therefore, the judgment of the trial court is affirmed.

¶ 43. AFFIRMED.

PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, DIAZ AND CARLSON, JJ, CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      . According to the certified copies of the Circuit Clerk's docket entries, no leave was sought to file a Second Amended Complaint, nor was such ever filed.

      . A review of the record does not indicate that leave was sought to file the Third Amended Complaint, but the Circuit Clerk's docket entries do not reveal an entry of filing the Third Amended Complaint on or about May 28, 1999. The record contains a copy of the Third Amended Complaint bearing the Circuit Clerk’s stamp and although, the stamped "Filed” date is illegible, the last page of the Third Amended Complaint and the Certificate of Service bears the date of May 27, 1999, leading one to believe it was, in fact, filed on or about May 28, 1999.

      .Nguyen states in its brief that, "[a]fter No-ram was served with process, its counsel contacted [Nguyen’s] counsel and advised that it did not supply natural gas to Fantasy Nails. Rather, Noram’s counsel stated that Mississippi Valley Gas (’MVG’) supplied natural gas to the Fantasy Nails business.” Yet, the brief is unclear as to exactly when Nguyen's counsel was notified of this; whether it was after the Amended Complaint or Third Amended Complaint.

      . The order of dismissal with prejudice specifically states that the trial court was "preceding [sic] solely on Defendant's, Mississippi Valley Gas Company, motion to dismiss and not on summary judgment ...”

      . This statement is incorrect. Nguyen has confused the Amended Complaint and the Third Amended Complaint. Noram was substituted as a party defendant in the Amended Complaint which was filed on May 18, 1999. However, the record indicates that the Third Amended Complaint was filed on May 28, 1999.

      . Again, this is an incorrect statement. As written, the statement indicates that the Fourth Amended Complaint was filed and served at the end of July. However, the record indicates that the Fourth Amended Complaint was not filed until September 15, 1999. The Amended Complaint was filed on or about May 18, 1999, while the Third Amended Complaint was filed on or about May 28, 1999. Thus, it would have been seventy-four days from the filing of the Amended Complaint, not the Third Amended Complaint, and the end of July.


source: Caselaw Access Project

author: CARLSON, Justice, McRAE, Presiding Justice,

license: Public Domain

text:
    Susan Renee LEE, General Guardian of Emily Renee Lawson, A Minor and Sole Wrongful Death Beneficiary of Randy Clay Lawson, Deceased v. Sheriff Andrew THOMPSON, Individually, Sheriff Andrew Thompson, in his Official Capacity as Sheriff of Coahoma County, the Coahoma County Sheriff's Department, Tracy A. Vance, Norman Harris, Jerry Hampton, Sammie Davis, Sabrea L. Broom, Addie Evans, Raechele D. Scott, and Everett L. Langdon, in both their Individual and Official Capacities.
    No. 2002-CA-00082-SCT.
    Supreme Court of Mississippi.
    Sept. 11, 2003.

      H. Wesley Williams, III, Ridgeland, Jeffrey Stephen Moffett, for appellant.
    David D. O’Donnell, Oxford, for appel-lees.
   CARLSON, Justice,

for the Court.

¶ 1. Aggrieved by the trial court’s dismissal of her wrongful death suit brought on behalf of her minor daughter against various Coahoma County defendants as a result of the death of her minor daughter’s father while he was an inmate at the Coa-homa County Jail, Susan Renee Lee appeals to this Court. Finding no reversible error, we affirm the judgment of the Circuit Court of Coahoma County, though for reasons different than those stated by the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Susan Renee Lee (Lee) is the former wife of Randy Clay Lawson (Lawson). Emily Renee Lawson (Emily), is the minor daughter of Lee and Lawson.

¶ 3. In the early morning hours of June 4, 1999, an extremely intoxicated Lawson appeared at Lee’s home in an effort to reconcile. Not surprisingly, it did not work. An altercation erupted, and Lee requested assistance from a neighbor who then fell victim to Lawson’s wrath, receiving several injuries inflicted by Lawson. Responding to a disturbance call as a result of the altercation, officials from the Coahoma County Sheriffs Department dutifully arrived at the Lee home, but Lawson, evidently unscathed from the incident, had by then left the scene. It took nothing more than a tag number and vehicle description for law enforcement to apprehend Lawson. By 6:20 a.m. on June 4th, two Coahoma County deputies arrived with Lawson at the Coahoma County Jail. According to the various pleadings, several witnesses verified that at the time Lawson arrived at the jail, he was “drunk and rowdy,” but he was not injured. A little over nine hours later, at 3:40 p.m., Lawson was discovered dead — hanging from the top bunk in his jail cell.

¶4. Upon a petition being filed in the Chancery Court of Coahoma County on June 15, 1999, twelve days after Lawson’s death, Maggie L. Baty (Baty), Lawson’s mother, was appointed as administratrix of Lawson’s estate by order entered the same day. The very next day, Baty commenced an action in Civil Action No. 14-CI-99-0038, on the docket of the Circuit Court of Coahoma County, “Maggie L. Baty, Administratrix of the Estate of Randy C. Laivson and on behalf of all Wrongful Death Beneficiaries, Plaintiff, versus Andrew Thompson, Sheriff of Coahoma County, Mississippi; John Doe(s), Jailer(s) of Coahoma County Jail; and Coa-homa County, Mississippi, Defendants.” In this civil action, Baty asserted both federal and state claims against the defendants for “failing to prevent the suicide” of Lawson. The only reference to the Mississippi Tort Claims Act (MTCA), Miss.Code Ann. §§ 11-46-1 to -23 (Rev.2002 & Supp. 2003), is found in paragraph 11 (page 4) of the complaint, which states:

The actions and/or inactions of the Defendants itemized and described here-inabove also constitute torts under state law. All such state claims will be itemized and specifically pled once the ninety (90) day period has run as required under Miss.Code Ann. § 11-46-11(1).

The suit also sought, inter alia, $5,000,000 in compensatory damages from Sheriff Thompson, the John Doe jailers and Coa-homa County (County).

¶ 5. On June 25, 1999, only nine days after Baty had commenced the civil suit as administratrix of Lawson’s estate, the Chancery Court of Coahoma County, in a different cause from that of the estate matter, entered a decree, pursuant to a petition filed by Lee, appointing Lee as the general guardian of Emily’s estate due to Emily’s having an unliquidated claim for damages arising out of her father’s death.

¶ 6. Although Emily had been born more than 11 months after the marriage of Lee and Lawson, Baty disputed the allegation that her son was Emily’s father. Pursuant to a chancery court order entered in the estate cause on September 8, 1999, Lee and Emily submitted to DNA testing and ReliaGene Technologies, Inc. (ReliaGene) of New Orleans, Louisiana, performed the DNA analysis. The resulting ReliaGene report revealed that Emily was indeed Lawson’s biological daughter.

¶ 7. On March 23, 2000, Lee, as Emily’s natural mother and as duly appointed general guardian of Emily’s estate, filed in the chancery court estate cause a motion to have Baty removed as administratrix of Lawson’s estate and to have Lee substituted as the administratrix. On April 13, 2000, Baty and Lee, by and through their respective counsel, agreed to the chancellor’s entry of an order removing Baty and substituting Lee as the administratrix of Lawson’s estate.

¶ 8. Although we cannot ascertain the exact date from the record, we do know that somewhere along the way, the Coaho-ma County defendants removed the Baty action from circuit court to federal court. We find in the record an opinion dated August 14, 2000, and signed by the Honorable Neal B. Biggers, Jr., Chief Judge for the United States District Court for the Northern District of Mississippi. Judge Biggers’s opinion was entered pursuant to a previously filed motion to dismiss by the Coahoma County defendants, and in the opinion, reference is made to the fact that Lee was substituted for Baty as the ad-ministratrix of Lawson’s estate and thereafter filed an amended complaint on May 18, 2000. Likewise, the federal court opinion sets out that the defendants were asserting that Lawson had hung himself while Lee on the other hand contended in her amended complaint that Lawson “was killed by the sheriffs department of Coahoma County by a severe beating administered by one or more deputies.” Judge Biggers found that Lee’s amended complaint failed to sufficiently allege a 42 U.S.C. § 1983 claim against Coahoma County and Sheriff Thompson, and that as to the state law claims, Miss.Code Ann. § 11-46-9(1)(m) barred any claim against Sheriff Thompson and Coahoma County. Pursuant to the opinion and the same-day entry of a final judgment consistent with the opinion, Judge Biggers dismissed Lee’s amended complaint with prejudice; however, by order dated October 20, 2000, the final judgment was amended to provide that the dismissal was without prejudice and that Lee would thus have thirty days from and after October 20, 2000, in which to file an amended complaint in the federal court action.

¶ 9. Rather than filing an amended complaint in the federal court action pursuant to that court’s order of October 20, 2000, Lee chose to instead file a new state court complaint. On March 28, 2001, 159 days after being allowed by the federal court to amend her federal court pleadings within 30 days, Lee opted to file this new action in the Circuit Court of Coahoma County. This cause was styled “Susan Renee Lee, General Guardian of Emily Renee Lawson, A Minor and Sole Wrongful Death Beneficiary of Randy Clay Lawson, Deceased, Plaintiff vs. Sheriff Andrew Thompson, Individually, Sheriff Andrew Thompson, in His Official Capacity as Sheriff of Coahoma County, The Coahoma County Sheriffs Department, Tracy A. Vance, Norman Harris, Jerry Hampton, Sammie Davis, Sabrea L. Broom, Addie Evans, Raechele D. Scott, and Everett L. Langdon, in Both Their Individual and Official Capacities, and John Does 8-10, In Both Their Individual and Official Capacities, Defendants,” and was assigned cause number 14-CI-01-0028 on the docket of that court.

¶ 10. In this new circuit court complaint, Lee alleged, inter alia, intentional acts by the Coahoma County defendants to kill Lawson and to destroy evidence. More specifically Lee asserted in her complaint claims of (1) assault and battery; (2) wrongful death; (3) outrage and/or infliction of emotional distress; (4) civil conspiracy and state constitutional claims; (5) gross negligence; (6) punitive damages; and, (7) vicarious liability. A review of this complaint also reveals the following allegations:

41. Dr. Hayne noted that defensive posturing wounds could not be excluded as the cause of the wounds and that he had not been supplied with the ligature device alleged to have caused the injuries. Furthermore, there is no indication that Dr. Hayne was ever supplied with the orange jumpsuit, which Mr. Lawson was wearing at the time of his demise. In fact, this jumpsuit was suspiciously and wrongfully disposed of by the Sheriffs Department.
42. Dr. Hayne was also never supplied with the broken dental plate which was found next to Mr. Lawson’s body. Both [two sheriffs deputies] specifically recall that this plate had the teeth smashed inward.

¶ 11. On April 23, 2001, all defendants joined together to file a motion to dismiss Lee’s complaint. As grounds for the motion, the defendants asserted, inter alia, (1) that Lee’s claims were exclusively governed by the MTCA; (2) that the claims were barred by the applicable statute of limitations; (3) that Lee failed to timely file this action pursuant to the MTCA; (4) that the defendants enjoyed sovereign immunity; (5) that Lee’s claims were barred under the MTCA since Lawson was an inmate at the time of his death; (6) that the Coahoma County defendants were performing discretionary functions at the time of the relevant events, thus barring the claims under the MTCA; and that (7) Lee had failed to state any claim upon which relief could be granted to her. On December 13, 2001, the circuit judge entered his 4-page Order Granting Motion to Dismiss. In his order, the trial judge addressed, inter alia, Lee’s claims under the MTCA, Lee’s claims for intentional torts, and the statute of limitations issue. The trial court concluded that Lee stood in the place of Lawson, and thus subject to all available defenses which could be asserted against Lawson had he lived. In taking this approach, the trial court concluded that the jail inmate exception found in Miss.Code Ann. § 11-46-9(1)(m) (Rev.2002) applied as to the County and its employees acting within the course and scope of their employment or duties, thus leaving potentially viable only the assault and battery claim found in count I of the complaint. In that count, Lee alleged that the Coahoma County defendants, “acting intentionally and/or with reckless disregard for the safety of [Lawson], either beat [Lawson] to death or allowed him to be beaten to death” thus causing the defendants to have been “engaged in intentional criminal acts which were clearly outside the scope of the officers’ employment with the [County].” While allowing count I of the complaint to remain viable inasmuch as the defendants did not enjoy MTCA immunity for these alleged intentional acts outside the scope of their employment, the trial court dismissed count I as barred by Miss.Code Ann. § 15-1-35 (Rev.2003) (statute of limitations covering intentional torts), the minors’ savings statute (Miss.Code Ann. § 15-1-59 (Rev.2003)) notwithstanding. As an additional ground for dismissal, the trial court also found that the pendency of the prior state court and federal court actions surrounding Lawson’s death did not toll the running of the applicable statutes of limitation.

¶ 12. Lee has timely appealed to us seeking relief from the circuit court dismissal, and she raises the following issues for this Court’s consideration:

I. WHETHER THE CIRCUIT COURT ERRED IN FINDING THE MINORS SAVINGS CLAUSE CODIFIED AS MISS. CODE ANN. § 15-1-59 DID NOT APPLY TO AN ACTION FOR WRONGFUL DEATH WHERE THE DECEDENT DIED ON JUNE 4, 1999, AND THE MINOR PLAINTIFF FILED HER COMPLAINT IN THE PRESENT ACTION ON MARCH 28, 2001, AFTER A PREDECESSOR ACTION WAS DISMISSED WITHOUT PREJUDICE FROM FEDERAL COURT ON OCTOBER 23, 2000.
II. WHETHER THE CIRCUIT COURT ERRED IN DISMISSING ALL BUT COUNT I OF THE PLAINTIFF’S COMPLAINT PURSUANT TO MISS. CODE ANN. § ll-46-9(l)(m) WHEN THE COMPLAINT CONTAINED ALLEGATIONS THAT THE DEFENDANTS’ CONDUCT CONSTITUTED MALICE OR A CRIMINAL OFFENSE, AND SUCH ALLEGATIONS ARE SUFFICIENT TO SUPPORT A FINDING THAT AN EMPLOYEE’S ACTIONS WERE TAKEN OUTSIDE THE SCOPE OF EMPLOYMENT PURSUANT TO MISS. CODE ANN. §§ 11-46-5(2) and 11-46-7(2).

DISCUSSION

¶ 13. We apply a de novo standard when reviewing the granting of a Miss. R. Civ. P. 12(b)(6) motion. Arnona v. Smith, 749 So.2d 63, 65-66 (Miss.1999). As such, we sit in the same position as did the trial court. The scope of review of a motion to dismiss is that the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of her claim. Brewer v. Burdette, 768 So.2d 920, 922 (Miss.2000). See also Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990); Grantham v. Miss. Dep’t of Corrections, 522 So.2d 219, 220 (Miss.1988). Additionally, as noted earlier, even though we treat the Rule 12(b)(6) motion as one filed under Rule 56, we still apply a de novo standard of review. Quinn v. Estate of Jones, 818 So.2d 1148, 1150 (Miss.2002). See also Baptiste v. Jitney Jungle Stores of Am., Inc., 651 So.2d 1063, 1065 (Miss.1995) (citing Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 63 (Miss.1988)).

¶ 14. The complaint filed by Lee on March 28, 2001, alleged seven counts against the county and the sheriff and his employees in both their official and individual capacities, including a claim for assault and battery and a claim for wrongful death. However, Lee brought all of the claims under the auspices of the Mississippi wrongful death statute, Miss.Code Ann. § 11-7-13 (Supp.2003). A wrongful death action is a derivative action brought by the beneficiaries who are subject to all of the defenses that would have been available against the decedent. Choctaw, Inc. v. Wichner, 521 So.2d 878, 882 (Miss.1988).

¶ 15. We will address these issues in a somewhat different order and fashion than Lee presents them to us.

¶ 16. Miss.Code Ann. § 11-46-9(l)(m) provides in pertinent part:

(1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(m) Of any claimant who at the time the claim arises is an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution, regardless of whether such claimant is or is not an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution when the claim is filed;

First, there is no doubt that the jail inmate provisions of the MTCA apply in this case as to any non-intentional/non-criminal acts alleged to have been committed upon inmate Lawson by the Sheriff and/or his deputies while in the course and scope of their employment with Coahoma County. Conrod v. Holder, 825 So.2d 16, 18-19 (Miss.2002); Liggans v. Coahoma County Sheriff’s Dep’t, 823 So.2d 1152, 1154-56 (Miss.2002); Wallace v. Town of Raleigh, 815 So.2d 1203, 1207-09 (Miss.2002). Thus, while the trial court correctly dismissed the claims for alleged negligent acts by the employees, the trial court erred to the extent that it dismissed all but count I of the complaint, keeping in mind that in each count of the complaint, Lee realleged and readopted all previous allegations in the complaint, which would include the allegations of intentional criminal acts. Thus as to these intentional acts, Lee, for and on behalf of her daughter and Lawson’s sole wrongful death beneficiary, Emily, still had viable claims, not under the MTCA, but under our wrongful death statute. See Miss.Code Ann. §§ 11-46-5(2) & -7(2). However, this does not end the inquiry as to whether Lee is still in court.

¶ 17. We now consider the statute of limitations issue.

¶ 18. First of all, we must keep in mind that Lawson’s sole wrongful death beneficiary, his daughter, Emily, is a minor. Mississippi has a minors’ savings statute, Miss.Code Ann. § 15-1-59 (Rev. 2003), which provides:

If any person entitled to bring any of the personal actions mentioned shall at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the action within the times in this chapter respectively limited, after his disability shall be removed as provided by law. However, the saving in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.

The trial court held that this statute only applied to actions mentioned in Chapter One, Title 15 of the Mississippi Code, Cole v. State, 608 So.2d 1313 (Miss.1992), thus finding Miss.Code Ann. § 15-1-59 did not apply to wrongful death actions. Arender v. Smith County Hosp., 431 So.2d 491 (Miss.1983). However, as Lee correctly points out, in Thiroux v. Austin, 749 So.2d 1040 (Miss.1999), this Court undermined the Arender decision.

In Arender v. Smith County Hosp., 431 So.2d 491 (Miss.1983), this Court held that the minors saving clause would not apply to a wrongful death claim. Aren-der erroneously relied on the 1895 case of Foster v. Yazoo & M.V.R. Co., 72 Miss. 886, 18 So. 380 (1895). Foster, in finding that the savings clause did not apply to a wrongful death action, interpreted a predecessor wrongful death statute containing its own statute of limitation, and a predecessor savings clause with slightly different wording than the one applicable in Arender. The savings clause at issue in Foster applied to “any of the personal actions before mentioned.” Miss.Code of 1892 § 2746 (emphasis added). Therefore, the Court reasoned that it did not apply to a wrongful death action, as the wrongful death statute was not “before mentioned.” At that time, the wrongful death cause of action was provided its own statute of limitation, which did not include a savings clause for minors. On the contrary, the current wrongful death statute, and the one in effect at the time of Arender, does not contain its own statute of limitation. Therefore that statute is subject to the provisions regarding limitations of actions in Title 15 of the Mississippi Code. See Miss.Code Ann. § 11-7-13 (Supp.1999). Also, the savings clause interpreted in Foster no longer contains the phrase “before mentioned” as it did at the time of Foster, which limited its application to the actions provided for in the same Chapter. There is no question now that the savings clause, set out in § 15-1-59 of the Mississippi Code, applies to a wrongful death action.

Thiroux, 749 So.2d at 1041 (emphasis added).

¶ 19. Because this Court has held the minors’ savings clause does toll the statute of limitations on a wrongful death action, the trial court erred in finding § 15-1-59 did not apply to wrongful death actions.

¶ 20. Our recent decision in Curry v. Turner, 832 So.2d 508 (Miss.2002), is also applicable here. In Curry, Hart Turner killed Everett Curry by shooting Curry in the head execution-style while Curry was pumping gas at a convenience store which Turner and another man had decided to rob. The thrust of our decision addressed Miss. R. Civ. P. 15 amendments and whether an amended complaint related back to the date of the original pleading under Miss. R. Civ. P. 15(c) for the purpose of tolling the applicable statute of limitations. In Curry, we discussed Thiroux and Arender and then we stated:

It stands to reason that the wrongful death statute’s lack of a savings clause is also no longer a viable excuse to preclude the use of § 15-1-59 by Everett Curry’s minor children as the Thiroux court found that the minor savings statute applied. However, the Thiroux majority did not address the significance of the wrongful death statute’s requirement that there only be one suit for recovery. Nor did the majority address whether the children’s guardian was a person in esse, allowing the statute of limitations to run against him as representative of the minor children’s interest (footnote omitted).
* * *
The plain language of the wrongful death statute § 11-7-13 sets it at odds with the minors savings statute § 15 — 1— 59. Conceivably, the minors savings statute would allow for two groups of plaintiffs to file suits at two separate times for damages caused by one event: 1) those plaintiffs of majority age and sound mind within the statute of limitations and 2) those plaintiffs protected by the savings statute when their disability is removed or they reach the age of majority. This could result in a substantial period of time elapsing between the two suits. The wrongful death statute requires that only one suit be brought to recover damages for the wrongful death of the deceased.
* * *
Betty Curry is not only the wife of the deceased, she is his personal representative as administratrix of his estate. The style of this case indicates it was her intention to bring this suit on behalf of all his wrongful death beneficiaries. The original and proposed amended complaint seek damages for all beneficiaries and not just for herself. The facts of Arender are closer to the facts in the instant case than those in Thiroux. We therefore conclude that the trial court’s ruling that she represented the interests of their minor children, as the estate’s administratrix and as their mother, for purposes of counting the statute of limitations against them, is affirmed. While this is a difficult conclusion, we are convinced the provisions in the wrongful death statute and the minors savings statute are at irreconcilable odds with one another where there exists a person qualified under the wrongful death statute to bring suit. This conclusion is reinforced by the wrongful death statute’s requirement that one suit be brought for damages from wrongful death. A common sense reading of the wrongful death statute indicates the statute of limitations runs against both the personal representative of the deceased and the deceased’s children. Since the amended complaint was filed after the statute of limitations had run, the children’s claims, like the estate’s and their mother’s, are barred by the statute of limitations.

832 So.2d at 515-17. Turning to the case sub judice, Susan Renee Lee, like Betty Curry, is a person in esse. Betty Curry was not only the wife of the deceased, she was the deceased’s personal representative, she was the administratrix of her husband’s estate, and she was the natural mother of their two minor children, who, along with Betty Curry, constituted all the wrongful death beneficiaries of the deceased. Susan Renee Lee is the natural mother of Emily, who is the sole wrongful death beneficiary of Lawson. After Lee was substituted in the original state court action which was removed to federal court, the case was styled in part, “Susan Renee Lee, Administratrix of the Estate of Randy C. Lawson and on behalf of all wrongful death beneficiaries.” By that time, Lee had been substituted as administratrix of Lawson’s estate and appointed general guardian over Emily’s person and estate in separate causes in the Chancery Court of Coahoma County. Thus, as in Curry, the statute of limitations in our case today runs against both Lee and Emily. No doubt, Emily, because of her disability of minority, was protected under both Miss. Code Ann. §§ 11-46-11(4) & 15-1-59 until the suit was initially filed in her behalf. That action, however, commenced the running of the applicable statute(s) of limitations concerning subsequently filed suits arising from the same cause of action.

¶ 21. Inasmuch as we have now determined that Lee’s claims arising from alleged non-intentional acts of the Coahoma County defendants were barred by Miss.Code Ann. § 11-46-9(1)(m), and that Emily was no longer protected under the minors savings statute, we must now determine which statute of limitations applies to claims arising from Lee’s claims of intentional/criminal acts allegedly committed upon Lawson by the Coahoma County defendants. Is it Miss.Code Ann. § 15-1-49 (the three-year “catch-all” statute), or Miss.Code Ann. § 15-1-35 (the one-year statute for intentional torts)? We have previously addressed this precise issue. In Thiroux, we stated:

We note that the parties in this case have concluded that the applicable statute of limitation is that found in Miss. Code Ann. § 15-1-49 (1995), the general three-year statute of limitation applied to “all claims for which no other period of limitations is prescribed.” However, a wrongful death action, since it is predicated on an underlying tort, is limited by the statute of limitation applicable to the tort resulting in the wrongful death. In this case, the underlying tort is one of assault and battery (murder), which cause is limited to a one-year period. Miss.Code Ann. § 15-1-35 (1995); see Veselits ex rel. Cruthirds v. Veselits, 653 F.Supp. 1570, 1575 (S.D.Miss.), aff'd on other grounds, 824 F.2d 391 (5th Cir.1987).

749 So.2d at 1042. There can thus be no doubt that Lee’s wrongful death action based on the alleged intentional criminal acts committed upon the person of Lawson by the Coahoma County defendants, inasmuch as it is predicated on an intentional tort, is governed by the one-year statute of limitation.

¶ 22. Finally, Lee argues that the pendency of the federal court action tolled the statute of limitations. The County argues the trial court correctly held that the pendency of a prior action does not toll the running of the statute of limitations applying the law of Smith v. Copiah County, 232 Miss. 838, 100 So.2d 614 (1958); W.T. Raleigh Co. v. Barnes, 143 Miss. 597, 109 So. 8 (1926); and Nevitt v. Bacon, 32 Miss. 212 (1856). But for the existence of one fact, Lee would prevail on this issue. See Boston v. Hartford Acc. & Indem. Co., 822 So.2d 239, 248 (Miss.2002); Norman v. Bucklew, 684 So.2d 1246, 1256 (Miss.1996). However, our decisions in Boston and Norman do not aid Lee in her case. Although the causes of action in both Boston and Norman accrued prior to the enactment of the MTCA, this is not what defeats Lee’s claims inasmuch as we have already determined that the MTCA is not applicable to Lee’s intentional tort claims.

¶23. Norman involved, inter alia, a malicious prosecution claim which was filed in federal court, dismissed without prejudice, and then refiled in state court. Boston involved a wrongful death claim commenced in state court subsequent to a federal court dismissal of a complaint which had alleged both federal and state claims against the sheriff and others due to the death of a jail detainee. In 1987, Boston filed her initial federal court action resulting in the subsequent dismissal of her state law claims without prejudice. In 1993, Boston filed another federal court action which was also dismissed without prejudice as to the state law claims. In 1995, Boston filed her state court action for the jail detainee’s alleged wrongful death which had occurred in 1987. The state court dismissed Boston’s complaint for several reasons, one of which was the running of the applicable statute of limitations which had not been tolled based on the pendency of the federal court actions. On this issue, this Court stated:

In accordance with this Court’s determination in Norman, we conclude that the six (6) year statute of limitations was tolled while the case was in federal court and that the trial court erred in determining that Boston’s claims were time-barred.

822 So.2d at 248.

¶ 24. However, in the case before us today, Lee, while being given the opportunity to amend her federal court pleadings, chose instead to file a new state court action alleging for the first time various intentional torts against the Coahoma County defendants. It must be remembered that in the initial state court action which was removed to federal court, the complaint alleged negligence by the Coa-homa County defendants for failing to prevent Lawson’s suicide. We do know from Judge Biggers’s opinion of August 15, 2000, that this complaint was later amended during the pendency of. the federal court action so as to substitute Lee as a party plaintiff in that cause. While there is no copy of the federal court amended complaint in the record before us, we do have Judge Biggers’s references to the amended complaint as gleaned from his opinion:

The undersigned has carefully reviewed the amended complaint and fails to find where the plaintiff has alleged any claims under § 1983 against either the sheriff or the county. The only clear facts alleged in the complaint are that certain unnamed deputies may have beaten the plaintiffs decedent to death, and neither Sheriff Thompson nor the county can be held liable for the deputies actions under 42 U.S.C. § 1988.
Plaintiff here does not allege that Thompson watched and did nothing as his deputies beat Lawson, or that he was informed of the beating and did nothing, or that he had any personal involvement in Lawson’s arrest or detention.
* * *
The amended complaint in this case is wholly devoid of any factual detail. There are no facts from which to base a claim that Thompson had anything to do with the beating/suicide.
* * *
The court further finds that plaintiff has not pled sufficient facts to support her claim against Coahoma County for a custom or policy regarding the circumstances resulting in the beating of Lawson or the alleged indifference to his suicide.
Plaintiff asserts that Miss.Code Ann. § 11-46-9(1) specifically excludes employees from the shield of immunity who are not acting within the scope of their employment which is defined in § 11-46-9(2)[sic] as any conduct which may constitute “fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations.” As stated supra in the discussion of federal claims, the complaint fails to allege any specific actions by the Sheriff either malicious or not that would support a cause of action.

¶ 25. Under the facts of this case, Lee has simply waited too long to refile a new state court action raising for the first time various claims of intentional torts allegedly committed by Sheriff Thompson and the other Coahoma County defendants.

¶26. In Cole v. State, 608 So.2d 1313 (Miss.1992), we stated the clear purpose of statutes of limitations:

The primary purpose of statutory time limitations is to compel the exercise of a right of action within a reasonable time. These statutes are founded upon the general experience of society that valid claims will be promptly pursued and not allowed to remain neglected. They are designed to suppress assertion of false and stale claims, when evidence has been lost, memories have faded, witnesses are unavailable, or facts are incapable of production because of the lapse of time.
Accordingly, the fact that a barred claim is a just one or has the sanction of a moral obligation does not exempt it from the limitation period. These statutes of repose apply with full force to all claims and courts cannot refuse to give the statute effect merely because it seems to operate harshly in a given case. The establishment of these time boundaries is a legislative prerogative. That body has the right to fix reasonable periods within which an action shall be brought and, within its sound discretion, determine the limitation period.

Id. at 1317-18. Thus, the trial court properly dismissed the complaint filed on March 28, 2001.

¶ 27. While the trial court correctly dismissed the claims based on the alleged non-intentional acts of the Coahoma County defendants under the provisions of the MTCA, and correctly kept viable the intentional tort claims in count I of the complaint, the trial court incorrectly dismissed other claims which remained viable under the wrongful death statute based on the alleged intentional acts of the Coahoma County defendants. Certainly, under the minors savings statute, Emily was protected; however, once the first wrongful death suit was commenced by the filing of the state court complaint on June 16, 1999, Emily no longer enjoyed the protection of the minors savings statute since there could be but one cause of action under Miss.Code Ann. § 11-7-13. Additionally, for the reasons stated, once the original state court action was commenced, Emily was governed by the same statute of limitations as her mother. Lee had her chance to pursue the wrongful death claim in behalf of Emily. She timely filed her suit. It was removed to federal court. She amended her complaint. The federal judge dismissed her claims without prejudice, granting her thirty days to amend her complaint. She chose instead to commence a new action in state court, alleging, inter alia, new claims of various intentional torts allegedly committed by the Coahoma County defendants. This new state court action was commenced 663 days after the cause of action accrued and 297 days after the applicable one-year statute of limitations had run.

CONCLUSION

¶ 28. We are confronted today with an absolutely tragic death of a young man while incarcerated in a county jail on domestic disturbance charges-an event which consequentially inflicts extreme grief and hardship on innocent family members and friends. We are also not unmindful of the serious allegations contained in the pleadings, all of which we are required to accept as true for the purposes of deciding the propriety of the trial court’s grant of dismissal. However, Lee, and thus, Emily, have had their day in court. Our interpretation of clear legislative intent based on the unambiguous provisions of applicable statutes and our application of prior case law guide us unhesitatingly to the conclusion we reach today. Because Lee’s negligence claims were barred by the jail inmate exemption of the MTCA and the one-year statute of limitations had run on Lee’s intentional tort claims, the trial court properly dismissed this action. Therefore, the judgment of dismissal of the Circuit Court of Coahoma County is affirmed.

¶ 29. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND EASLEY, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.

McRAE, Presiding Justice,

Dissenting:

¶ 30. The majority erroneously finds that Miss.Code Ann. § 11-46-9(1)(m) (Rev. 2002) precludes Emily’s claims since her father was an “inmate” at the time of the alleged acts of negligence and that the savings clause found in Miss.Code Ann. § 15-1-69 (Rev.2003) is not applicable. Section 11-46-9(1)(m) does not preclude Emily’s negligence claims as her father was not a “convicted” criminal classifying as an “inmate” within the statute’s express language. Additionally, the savings clause found in Section 15-1-69 is applicable and allowed Emily one year to refile her action in state court. Lastly, Emily’s claims for loss of society and companionship are personal to her and not her father; therefore, any procedural impediments which restrict her father’s possible claims under the MTCA do not apply. For these reasons, I dissent.

¶ 31. Section 11-46-9(1)(m) provides that:

(1) A government entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:
(m) Of any claimant who at the time the claim arises is an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution, regardless of whether such claimant is or is not an inmate of any detention center, jail, workhouse, penal farm, penitentiary or other such institution when the claim is filed,

(emphasis added). Randy Lawson, Emily’s father, was not an “inmate” at the time of the alleged acts of negligence. He was only a detainee being held on “possible” charges of assault and battery. At the time of his detention, Lawson had not been formally charged with any crime and had certainly not been tried and convicted. Lawson was not an “inmate” within the meaning of Section ll-46-9(l)(m); therefore, it has no application here.

¶ 32. The savings clause in Section 15-1-69 is applicable; therefore, Emily had one year from the federal court’s dismissal of her action for lack of proper forum to institute the present state court action. Regardless of whether Emily alleged new causes of action in addition to those in the federal suit, she is still entitled to the protections of Section 15-1-69. As long as Emily’s action in federal court was timely filed, then the running of the statute of limitations diming its pendency is of no consequence. Boston v. Hartford Acc. & Indem. Co., 822 So.2d 239 (Miss.2002); Norman v. Bucklew, 684 So.2d 1246 (Miss.1996).

¶ 33. Additionally, Section 15-1-69 is a procedural statute and not a substantive statute of limitations. Therefore, the mandates of the Mississippi Tort Claims Act (“MTCA”) with regard to the imposition of an “exclusive” statute of limitations are not disturbed. Miss.Code Ann. § 11-46-11 (Rev.2002). Contrary to the majority’s assertions, Section 15-1-69 does not alter or extend the statute of limitations provided for in Section 11-46-11 of the MTCA. Section 15-1-69 merely provides a procedural remedy for persons who erroneously chose the wrong forum. “The primary purpose of statutory time limitations is to compel the exercise of a right of action within a reasonable time.” Cole v. State, 608 So.2d 1313, 1317 (Miss.1992). In line with this reasoning, the mandates of Section 15 — 1— 69 do not conflict with the statute of limitations provided for in the MTCA. Application of Section 15-1-69 does not extend the statute of limitations or provide an unreasonable time within which the plaintiff may exercise his rights. In fact, under the present circumstances, since the federal action was timely filed, the County and other defendants were already on notice of Emily’s potential claims.

¶ 34. Emily’s claims for loss of society and companionship are personal to her and not her father; therefore, any procedural impediments which restrict her father’s possible claims under the MTCA do not apply. This Court has always found claims for loss of society and companionship to be rightfully in the hands of the injured person and/or the deceased’s heirs. Choctaw, Inc. v. Wichner, 521 So.2d 878, 880-82 (Miss.1988). The action is personal in nature. Although several defenses which may be applicable against the injured or deceased person may also be asserted against their heirs, there is no indication that the “inmate limitation” in the MTCA should apply to Emily’s personal claims for relief.

¶ 35. Contrary to the majority’s assertions, Section ll-46-9(l)(m) does not bar Emily’s claims regarding the negligent acts which caused her father’s death. Furthermore, Emily’s refiling in state court was timely and was not barred by the statute of limitations as Section 15 — 1— 69 provided her with one year from the dismissal in federal court to refile her action. Accordingly, I would reverse the trial court’s judgment and remand this case for further proceedings. For these reasons, I dissent.

      . Since this case is before the Court on an appeal of the trial court’s order granting a motion to dismiss, we glean these facts from the various pleadings in the record before us and accept the allegations as true for the purposes of this appeal.

      . Miss Code Ann. § 11-46-11(1) states in pertinent part:
      After all procedures within a governmental entity have been exhausted, any person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity.
      Although Baty asserted in paragraph 11 of the complaint that she would itemize the state claims once this 90 day period had run, there is nothing in the record to indicate that she made any effort to comply with this statutory notice requirement “prior to maintaining [the] action.”

      . This opinion was entered in that certain case styled “Susan Renee Lee, Administratrix of the Estate of Randy C. Lawson and on behalf of all wrongful death beneficiaries, Plaintiff v. Andrew Thompson, et. al, Defendants,” and being cause number 2:99CV136-EMB on the docket of the United States District Court for the Northern District of Mississippi, Delta Division.

      . Although Dr. Steven Hayne performed the autopsy on Lawson on June 5, 1999, one day after his death, and although Lee later asserted that the autopsy revealed Lawson had numerous injuries, such as defensive posturing wounds and bruising at the base of the skull, which would be inconsistent with suicide, these facts were not alleged in the initial circuit court complaint filed on June 16, 1999.

      . This time around, Lee made it clear in the complaint that she was not asserting "any cause of action arising under federal law or the United States Constitution, nor is it [her] intention ... to bring any such claim.”

      . Although the motion does not refer to any particular rule as the basis for the motion, a careful reading of the motion makes it abundantly clear that this is a Miss. R. Civ. P. 12(b)(6) motion. Likewise, the parties in their briefs before this Court correctly direct us toward the applicable standard of review on Miss. R. Civ. P. 12(b)(6) motions to dismiss. To be absolutely cautious, however, it appears that the circuit judge had before him at the time of ruling on the motion, matters outside the circuit court pleadings, such as some of the federal court papers, including Judge Biggers’s opinion and final judgment. Thus, pursuant to the provisions of Miss. R. Civ. P. 12(b)(6), the Comment thereunder, and our applicable case law, we will treat this motion to dismiss as a motion for summary judgment to be disposed of in accordance with the provisions of Miss. R. Civ. P. 56. See Jones v. Jackson Pub. Schs., 760 So.2d 730 (Miss.2000); Palmer v. Biloxi Reg’l Med. Ctr., Inc., 649 So.2d 179 (Miss.1994). Finally, since Miss. R. Civ. P. 56 treatment is proper, any error committed by the learned circuit judge in ruling on this motion without a hearing was harmless beyond any doubt. See Adams v. Cinemark USA, Inc., 831 So.2d 1156, 1162 (Miss.2002). Whether the motion is treated as one under Miss. R. Civ. P. 12(b)(6) or 56, our standard of review is the same — de novo.

      . Had there still been viable claims under the MTCA, Emily would have been protected under the recently amended statute. Miss.Code Ann. § 11-46-11(4) provides:
      (4) From and after April 1, 1993, if any person entitled to bring any action under this chapter shall, at the time at which the cause of action accrued, be under the disability of infancy or unsoundness of mind, he may bring the action within the time allowed in this section after his disability shall be removed as provided by law. The savings in favor of persons under disability of unsoundness of mind shall never extend longer than twenty-one (21) years.
      The amendment notes under Miss.Code Ann. § 11-46-11 state that "[t]he 2000 amendment added (4). The 2002 amendment substituted 'April 1, 1993' for 'May 15, 2000’ in (4).”

      . We are not unmindful of the existence of Miss.Code Ann. § 15-1-69 (Rev.2003), which states:
      If in any action, duly commenced within the time allowed, the writ shall be abated, or the action otherwise avoided or defeated, by the death of any party thereto, or for any matter of form, or if, after verdict for the plaintiff, the judgment shall be arrested, or if a judgment for the plaintiff shall be reversed on appeal, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit, or after reversal of the judgment therein, and his executor or administrator may, in case of the plaintiff's death, commence such new action, within the said one year.
      However, the reason we have not thus far addressed this statute is because Lee has not. In her notice of appeal, Lee asserted "[t]he Circuit Court also held that Section 15-1-69 was not applicable and that the one year statute of limitations was not tolled during the pendency of a previous action which was dismissed without prejudice.” First of all, we have meticulously searched the record, and we find no reference to § 15-1-69 by the circuit judge. Secondly, this one statement in her notice of appeal is the last time Lee mentions this issue. Her brief makes no mention of Miss.Code Ann. § 15-1-69, and although the defendants’ brief does mention § 15-1-69, Lee, in her reply brief, chooses not to address this statute. In their brief, the defendants state that “the federal district court’s disposition was clearly 'on the merits' and was not a dismissal 'as to form’ so as to render the prior disposition subject to Miss.Code Ann. § 15 — 1— 69.” In referring to our earlier recitation of Judge Biggers's decision in the federal district court case, we agree with the position taken by the Coahoma County defendants. Lee evidently has no disagreement on this point since she chose not to address it in her initial brief, nor respond to the defendants' position on this point when given the opportunity to do so in her reply brief.


author: CARLSON, Justice, GRAVES, JUSTICE,

text:
    Charlene RAY v. Ray A. KEITH and Lee County, Mississippi, by and through Lee County Board of Supervisors.
    No. 2002-CA-00321-SCT.
    Supreme Court of Mississippi.
    Sept. 11, 2003.
    T. Jackson Lyons, Patrick S. Wooten, Jackson, for appellant.
    William C. Murphree, Tupelo, Gary L. Carnathan, Amory, for appellees.
   CARLSON, Justice,

for the Court.

¶ 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). 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 Tros-clair 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 plaintiffs failure to timely submit a claim resulted from his ignorance of defendant’s status as a government 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) 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 them 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 judiee, 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.

CONCLUSION

¶ 17. The trial court was eminently correct in finding Charlene Ray failed to substantially comply with the MTCA. This failure caused the one-year statute of limitations to run, thus barring Ray’s claim. Therefore, this Court affirms the trial court’s grant of summary judgment in favor of Lee County and Keith.

¶ 18. AFFIRMED.

PITTMAN, C.J., SMITH, P.J., COBB AND EASLEY, JJ., CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J. WALLER AND DIAZ, JJ., NOT PARTICIPATING.

GRAVES, JUSTICE,

DISSENTING:

¶ 19. The majority holds that Charlene Ray failed to comply with the notice requirements of the Mississippi Tort Claims Act (MTCA) and the applicable statute of limitations. Hence, it bars Ray’s personal injury claim. Because I disagree, I respectfully dissent.

I.

¶ 20. On August 20, 1999, around twelve o’clock noon, Ray was turning onto an entrance ramp to U.S. Highway 45 in Lee County when Keith failed to yield the right of way at a stop sign and struck Ray’s vehicle. The accident report states that Keith was cited by the investigating officer for the violation. Keith’s place of employment was listed as “Lee County Fire Cord.”

¶ 21. Shortly after the accident, Ray obtained counsel. Medical records and bills were sent through correspondence to the claims adjuster, Tommy Whitt of Metropolitan Life, Keith’s private insurance carrier. On April 17, 2000, Ray made her first settlement demand. A second demand was made on July 25, 2000. Whitt rejected the demand on July 31, 2000. Ray filed suit against Keith on August 16, 2000. On September 12, 2000, following service on Keith, his counsel filed a motion requesting additional time to answer indicating that Keith’s employer was a real party in interest pursuant to the Mississippi Tort Claims Act.

¶ 22. On September 27, 2000, Keith answered and asserted defenses based on his status as an MTCA-covered employee. An order dismissing the case was entered December 11, 2000.

II.

¶ 23. Keith and Lee County assert that the trial court did not err in granting summary judgment. Keith and Lee County contend that Ray failed to discover that when the collision occurred Keith was acting within the course and scope of his employment with Lee County. Keith and Lee County allege that Ray did not comply with the Mississippi Tort Claims Act, which requires notice within one year after the alleged injury occurred.

¶ 24. In reviewing the grant for summary judgment, the Court stands in the same position with respect to the parties and the record as did the trial court. The Court, therefore, reviews the judgment granted de novo using the same standard applied by trial courts. Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993). The sole question presented before this Court is whether any principle applies which tolled the statute.

¶ 25. After review of the record, it is evident that Keith is an MTCA-covered employee. This fact is uncontested. MTCA contains a mandatory notice provision and a one year statute of limitations in § 11-46-11 which reads in relevant part:

(3) All actions brought under the provisions of this chapter shall be commenced within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based, and not after; provided, however, that the filing of a notice of claim as required by subsection (1) of this section shall serve to toll the statute of limitations for a period of ninety-five (95) days. The limitations period provided herein shall control and shall be exclusive in all actions subject to and brought under provisions of this chapter, notwithstanding the nature of the claim, the label or other characterization the claimant may use to describe it, or the provisions of any other statute of limitations which would otherwise govern the type of claim or legal theory if it were not subject to or brought under the provisions of this chapter.

Miss.Code Ann. § 11-46-11 (Supp.1998).

¶ 26. Ray argues that the “discovery rule” and the doctrine of equitable estop-pel are applicable to the instant case and tolled the statute. Case law supports Ray’s contention. “A party asserting equitable estoppel must show that he has changed his position in reliance upon the conduct of another, and that he has suffered detriment caused by his change of position in reliance upon such conduct.” PMZ Oil Co. v. Lucroy, 449 So.2d 201, 202 (Miss.1984). In the instant case, proof exists to show that Keith and his private insurance carrier failed to reveal that at the time of the accident he was acting within the course and scope of his employment. Additionally, Keith’s private insurance carrier settled the claims of Ray’s passengers, Pauline Newcomb and Mason Kedpradt. Ray’s claim was not settled because a mutually agreeable amount could not be agreed upon between the parties. As a result of Keith’s failure to reveal that he was acting within the course and scope of his employment, Ray was prejudiced. He relied on Keith’s conduct which was wholly inconsistent with his tardy revelation regarding his “course and scope of employment” defense.

¶ 27. Keith and Ray exchanged numerous correspondence prior to the tolling of the statute of limitations. As the record reveals, there were communications between Keith’s private insurance carrier and Ray as early as August 30, 1999. The two passengers’ cases were settled by way of a payment made by Keith’s private insurance carrier. An offer of settlement had been made by Keith’s private carrier on Ray’s claim. It was only after Ray failed to accept the offer and filed suit that Keith first raised the defense that he was acting within the course and scope of his employment. Obviously, Keith at all times knew that he was acting within the course and scope of his employment, yet he failed to notify his employer and instead allowed his personal insurance carrier to settle claims arising out of this accident on his behalf. Because Keith engaged in a course of conduct which would lead any reasonable person to conclude that he was personally hable, he should be estopped from raising the MTCA statute of limitations and notice requirements as a defense. Inequitable or fraudulent conduct may be established to estop a party from asserting a statute of limitations defense. Miss. Dep’t of Public Safety v. Stringer 748 So.2d 662, 665 (Miss.1999).

¶ 28. The MTCA is intended to protect government employees who are acting within the course and scope of their employment. It provides an exclusive civil remedy against a governmental entity or its employee for acts or omissions which give rise to a suit. Watts v. Tsang, 828 So.2d 785, 791 (Miss.2002). Here, Keith never indicated that he was acting within the course and scope of his employment until after the lawsuit was filed. Moreover, all the evidence and facts support a reasonable conclusion that he was not acting within the course and scope of his employment. Ray should not be penalized as a result. I would reverse the trial court’s judgment and remand this case for further proceedings. Therefore, I respectfully dissent.

McRAE, P.J., JOINS THIS OPINION.

      . Miss.Code Ann. § 11-46-1 (f) (Rev.2002):
      (f) "Employee” means any officer, employee or servant of the State of Mississippi or a political subdivision of the state, including elected or appointed officials and persons acting on behalf of the state or a political subdivision in any official capacity, temporarily or permanently, in the service of the state or a political subdivision whether with or without compensation....

      . 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.