author: WALLER, Chief Justice, KITCHENS, Justice,

text:
    Gail SAUL, for and on Behalf of All Wrongful Death HEIRS OF Raymond L. COOK, and Raymond Cook, Individually, By and Through Gail Saul, his Personal Representative v. SOUTH CENTRAL REGIONAL MEDICAL CENTER, INC.
    No. 2008-CA-01474-SCT.
    Supreme Court of Mississippi.
    Jan. 7, 2010.

      Robin L. Roberts, Hattiesburg, attorney for appellants.
    Richard 0. Burson, Laurel, Grayson Lacey, attorneys for appellee.
   WALLER, Chief Justice,

For The Court.

¶ 1. Gail Saul brought suit, pursuant to the Mississippi Tort Claims Act, against South Central Regional Medical Center for the alleged wrongful death of her father, Raymond Cook. The Jones County Circuit Court granted the hospital’s motion to dismiss the wrongful-death suit against it, finding that the one-year statute of limitations barred Saul’s claims. Finding that Saul’s “wrongful-death” claims were timely brought, and that the discovery rule applied to Saul’s “survival-type” claims, requiring additional evaluation by the trial court, we reverse and remand.

FACTS

¶ 2. On November 15, 2005, Raymond Cook’s gall bladder was surgically removed at South Central Regional Medical Center (“SCRMC”). Shortly thereafter, while still hospitalized, Cook developed an internal abdominal bleed. On November 19, 2005, he suffered a heart attack, lost consciousness, and was placed on a ventilator. Cook never regained consciousness, and on December 2, 2005, Cook was removed from life support. He died on December 6, 2005.

¶ 3. On December 5, 2006, Dale Cook, one of Raymond Cook’s children, sent the hospital a notice-of-claim letter pursuant to the Mississippi Tort Claims Act (“MTCA”). The letter named Gail Saul, Dale Cook, and Dewayne Cook as Raymond Cook’s children. The letter alleged that “[t]he nursing staff at [SCRMC] failed to recognized that Mr. Cook needed [blood] volume replacements [following surgery].... ” The hospital received the letter on December 6, 2006, the one-year anniversary of Cook’s death.

¶ 4. On June 11, 2007, Saul, on behalf of the wrongful-death plaintiffs and as Cook’s personal representative, filed suit for Cook’s alleged wrongful death, against SCRMC and three physicians. According to the complaint, SCRMC staff was negligent in its post-operative care of Cook, and its negligence proximately caused Cook’s death. The hospital moved for dismissal under Mississippi Rule of Civil Procedure 12(b)(6), arguing that the one-year statute of limitations had expired before it received the notice-of-claim letter. In the alternative, the hospital argued that dismissal was warranted because the notice-of-claim letter did not meet the statutory requirements.

¶ 5. Following a brief hearing on the motion, the trial court took the matter under advisement. By order dated August 20, 2008, the trial court dismissed all of Saul’s claims against the hospital without prejudice. The judge found that Saul’s claims against SCRMC were “based on the Hospital’s alleged failure to recognize that Mr. Cook needed blood volume replacement between the dates of November 15, 2005, and November 19, 2005.” Thus, the judge reasoned that the statute of limitations began to run no later than November 19, 2005, the last date Cook was conscious. Because SCRMC received the notice of claim on December 6, 2006, more than one year* after that date, the trial court found that Saul’s claims were barred by the expiration of the one-year statute of limitations. The trial court certified the judgment as final under Mississippi Rule of Civil Procedure 54(b).

STANDARD OF REVIEW

¶ 6. This Court applies a de novo standard of review when examining a trial court’s grant or denial of a motion to dismiss. Burleson v. Lathem, 968 So.2d 930, 932 (Miss.2007) (citing Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss.2006); Park on Lakeland Drive, Inc. v. Spence, 941 So.2d 203, 206 (Miss.2006); McLendon v. State, 945 So.2d 372, 382 (Miss.2006); Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss.2005)). “When considering a motion to dismiss, 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 his claim.” Id. (quoting Scaggs, 931 So.2d at 1275).

DISCUSSION

¶ 7. The trial court dismissed all of Saul’s claims against SCRMC as untimely, relying primarily on this Court’s decision in Caves v. Yarbrough, 2007 WL 3197504 (Miss.2007) (“Caves I”), holding that the discovery rule did not apply to MTCA cases. However, on rehearing, we withdrew Caves I and issued our final opinion in the case, holding that the discovery rule does apply to actions brought under the MTCA. Caves v. Yarbrough, 991 So.2d 142, 155 (Miss.2008) (citing Barnes v. Singing River Hosp., 733 So.2d 199, 205-06 (Miss.1999)). The final Caves decision was not issued until September 25, 2008, slightly more than a month after the trial court dismissed Saul’s claims against SCRMC. On appeal, Saul argues that the discovery rule tolled the statute of limitations for her ■wrongful-death action until she obtained her father’s medical records.

I. Discovery Rule

¶ 8. Saul’s claims against SCRMC, a state-sponsored hospital, are subject to a one-year limitations period under the MTCA. Miss.Code Ann. § 11-46-11(3) (Rev.2002). Our decision in Caves reaffirmed the application of the discovery rule in wrongful-death actions predicated on allegations of medical malpractice and brought under the MTCA. Caves, 991 So.2d at 155. We followed the “judicially created” discovery rule we originally had incorporated into the MTCA in Barnes v. Singing River Hospital, 733 So.2d 199 (Miss.1999), finding that “justice is best served by applying a discovery standard to such cases.” Caves, 991 So.2d at 154-55 (quoting Barnes, 733 So.2d at 205-06). Thus, we held in Caves that “the limitations period for MTCA claims does not begin to run until all the elements of a tort exist,” and we concluded that “[t]he operative question ... is whether statutory notice was provided within a year next following the earliest date [the decedent] (or his personal representative), by exercise of reasonable diligence, should have known of the injury and the acts or omission which caused them.” Caves, 991 So.2d at 155-56 (emphasis added). We further held in Caves that “the finder of fact ... must decide when those requirements are satisfied.” Id. at 155.

¶ 9. Caves also “explained” that the wrongful-death statute allows an action which includes not only the beneficiaries’ “wrongful-death” claims, such as loss of consortium, society, and companionship, but also the decedent’s own pre-death “survival-type” claims, such as claims for his or her personal injury, property damage, and medical expenses. Caves, 991 So.2d at 148-49. “The statute of limitations for [‘wrongful-death’] claim[s], however, [can] not begin to run until, at the earliest, ... the date of death, and the date [the wrongful-death claimant]’s damages accrued.” Univ. of Miss. Med. Ctr. v. McGee, 999 So.2d 837, 840 (Miss.2008). Since SCRMC received the notice-of-claim letter on the one-year anniversary of Cook’s death, Saul’s “wrongful-death” claims were timely brought, and we need not address the application of the discovery rule to those claims. Thus, we reverse and i-ender the trial court’s dismissal of Saul’s “wrongful-death” claims against SCRMC.

¶ 10. However, applying the discovery rule to the facts of this case, we are unable to determine whether Saul’s “survival-type” claims were timely brought. Cook’s injuries resulted from gall bladder surgery on November 15, 2005. Cook lost consciousness on November 19, 2005, and he did not regain consciousness before he died on December 6. Thus, Cook was conscious for approximately four days after his surgery, and he may have known about his injuries during that time. However, Cook’s injuries were mostly internal and could be characterized as “severe postoperative complications,” which is how the trial court labeled them. The question then becomes, pursuant to the “judicially-created” MTCA discovery rule, whether Cook knew or, in the exercise of reasonable diligence, should have known “the act or omission which caused [his injuries]” Caves, 991 So.2d at 155.

¶ 11. Based on the scant record before us, we are unable to answer that question, so we remand this cause to the trial court so that the finder of fact may do so. If the fact-finder determines that Cook did discover, or should have discovered, SCRMC’s allegedly negligent act or omission before he died, then Saul’s “survival-type” claims against SCRMC were untimely because SCRMC received the notice-of-claim letter exactly one year after Cook’s death. However, if Cook did not discover these elements, then all of Saul’s claims were timely brought.

II. Notice of Claim

¶ 12. Pursuant to Mississippi Code Section 11-46-11(1), a potential plaintiff must provide the governmental entity ninety days’ written notice before filing suit. Miss.Code Ann. § 11-46-11(1) (Rev. 2002). Subsection (2) of Section 11-46-11 provides the “seven required categories of information which must be included” in the notice of claim. Miss.Code Ann. § 11 — 46-11(2) (Rev.2002); Parker v. Harrison County Bd. of Supervisors, 987 So.2d 435, 439 (Miss.2008) (quoting S. Cent. Reg’l Med. Ctr. v. Huffy, 930 So.2d 1252, 1257-58 (Miss.2006)). Specifically, Section 11-46-11(2) provides that:

Every notice of claim ... shall be in writing, and ... shall contain a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought and the residence of the person making the claim at the time of the injury and at the time of filing the notice.

Miss.Code Ann. § 11-46-11(2) (Rev.2002).

¶ 13. According to SCRMC, even if Saul’s action is not barred by the statute of limitations, the case should be dismissed because the notice-of-claim letter was insufficient. Although the written notice identified Saul as one of Cook’s surviving children, it did not give her address. Instead, the notice-of-claim letter gave the address of Dale Cook, because Dale sent the notice. Thus, SCRMC asserts that notice was insufficient because it did not identify Saul’s residence. We disagree.

¶ 14. The written notice-of-claim letter sent by Dale Cook contained a statement of the facts upon which the claim was based, including the circumstances which brought about Raymond Cook’s injuries, and the time, place, and extent of those injuries, including his alleged wrongful death. The notice also included the names of all persons known to be involved, including Saul, Dale Cook, Dewayne Cook, the doctor who performed the surgery, and the allegedly negligent hospital and nursing staff. The letter also specified the amount of money damages sought by Saul and the Cooks. Finally, the letter gave the residence address of Dale Cook, one of the persons making the claim and the person who sent the notice. Therefore, we find that the notice-of-claim letter complied fully with the requirements of Section 11-46-11(2). Miss.Code Ann. § 11-46-11(2) (Rev.2002); Parker, 987 So.2d at 439.

CONCLUSION

¶ 15. Saul’s “wrongful-death” claims against SCRMC were timely brought, so we reverse and render the Jones County Circuit Court’s dismissal of those claims. However, applying the “judicially-created” MTCA discovery rule to this case, the record before us does not indicate whether, before he died, Cook “discovered” the act or omission by SCRMC which allegedly caused his injuries. Whether he did or not, and hence, whether Saul’s “survival-type” claims were timely brought, must be decided by the fact-finder. Therefore, we reverse the Jones County Circuit Court’s dismissal of Saul’s “survival-type” claims against South Central Regional Medical Center and remand this cause to that court for further proceedings consistent with this opinion.

¶ 16. REVERSED AND REMANDED IN PART; REVERSED AND RENDERED IN PART.

CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR, CHANDLER AND PERICE, JJ., CONCUR. KITCHENS, J., CONCURS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J.

KITCHENS, Justice,

Concurring in Part:

¶ 17. For more than 150 years, the rule in Mississippi was simple: the statute of limitations for claims filed pursuant to the wrongful death statute could not begin to run until death. Yet, beginning with Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923 (Miss.2006), this Court embarked upon a curious and confusing course that has drastically changed and unduly complicated this plain and simple rule, and we have yet to settle on a controlling rule of law.

¶ 18. Today’s majority opinion adds to the mix yet another befuddling decision that will further confound the bench and the bar. While greatly respecting the views of my colleagues in the majority, I write separately to explain why I believe the wiser course would be found in a U-turn back onto the well-marked course we followed during the 19th, 20th, and early 21st Centuries.

¶ 19. The clear, established law in Mississippi was that the statute of limitations for all claims brought pursuant to the wrongful death statute could not begin to run until the date of the decedent’s death. See Gentry v. Wallace, 606 So.2d 1117, 1120 (Miss.1992), overruled in part by Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923 (Miss.2006). In 2006, the Court forsook its longstanding precedent, and in Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923, with only five justices participating in the decision, the Court reasoned that the statute of limitations begins to run on the date of the injury, not the date of death. Not long after Jenkins, this Court decided Caves v. Yarbrough, 2007 WL 3197504 (Miss.2007), holding that, in wrongful death actions involving governmental entities, not only did the statute of limitations begin to run on the date of the underlying injury, but that the statutory discovery rule for medical negligence cases, Mississippi Code Section 15-1-36(1) (Rev.2003), is inapplicable to such claims.

¶ 20. Bound by these decisions, the trial judge in the instant case granted SCRMC’s motion to dismiss. The judge reasoned that, because this Court had adjudicated the date of injury to be controlling, and not the date of death, the statute of limitations had begun to run no later than November 19, 2005, the last date Mr. Cook was conscious. Because SCRMC received the notice of claim on December 6, 2006, the one-year anniversary of Mr. Cook’s death, Saul’s claims were held to be barred by the expiration of the statute of limitations.

¶ 21. Under Jenkins and the Court’s first decision in Caves, the trial court would have been correct in dismissing Saul’s claims. However, subsequent to deciding those two cases, this Court continued to tinker with the law. On September 25, 2008, the Court withdrew the original Caves opinion and rightly held that the discoveiy rule does apply to claims brought under the Mississippi Tort Claims Act (MTCA). Caves v. Yarbrough, 991 So.2d 142 (Miss.2008). In addition, however, the Court declared that actions brought under the wrongful death statute could encompass several sorts of claims, and the statute of limitations for each type of claim could be triggered by different kinds of events. Id. at 148-51. Now, instead of the statute of limitations’ beginning to run on the date of death, as in Gentry, or on the date of the injury, as in Jenkins, the Court has determined that both the date of death and the date of injury could apply. Caves, 991 So.2d at 150.

¶ 22. On appeal, Saul urges this Court to return to the pre-Jenkins rule, and she makes a sound and compelling argument, most notably that nothing in Mississippi’s 150-year history in this area of law supports these recent decisions. This state’s first wrongful death statute provided a statute of limitations of “one year after the death of such deceased person.” Miss. Code Ch. 61, art. 48 (1857) (emphasis added). In 1908, the legislature removed the limitations provision, and the Code’s general, six-year limitations period applied. Arender v. Smith County Hosp., 431 So.2d 491, 492 (Miss.1983). Although the time period was shortened by the legislature from six years to three years in 1989, the pertinent language in this catch-all provision remained the same: “All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.” Miss.Code Ann. § 15-1-49(1) (Rev.2003).

¶ 23. Despite the 1908 legislative removal of the express limitations language from the wrongful death statute, this Court steadfastly recognized and held that the statute of limitations cannot begin to run until the decedent’s death. Gentry, 606 So.2d at 1121 (citing Smith v. McComb Infirmary Ass’n, 196 So.2d 91 (Miss.1967); Pickens v. Ill. Cent. R. Co., 92 Miss. 210, 45 So. 868 (1908); Foster v. Yazoo & MS Valley R. Co., 72 Miss. 886, 18 So. 380 (1895)). The logic was that a wrongful death action is different from other kinds of personal injury actions, and is meant to compensate the statutory beneficiaries of the decedent for certain damages stemming from his or her demise, when caused by the act or omission of another. Id. at 1119-20, 18 So. 380. Because the claim does not come into existence until there is a death, the date of death, quite logically, was judicially deemed to be the earliest time that the statute of limitations could begin to run. Id. at 1121, 18 So. 380.

¶ 24. Thus, actions brought under the wrongful death statute are distinguishable from those actions brought pursuant to the survival statute. The survival statute, now codified at Mississippi Code Section 91-7-233, allows executors or administrators to pursue any claim which the decedent could have maintained for himself had he lived. Miss.Code Ann. § 91-7-233 (Rev.2004). Such claims would be personal to the deceased, claims which did not cause his or her death. The wrongful death statute, on the other hand, allows the beneficiaries to recover for damages caused by those personal torts which did cause death. See In Re Estate of England, 846 So.2d 1060, 1068 (Miss.Ct.App.2003) (“When the same wrongful conduct causes both personal injury and death, at the instant of death, the recovery for the personal injury is embraced by the ‘one suit’ for wrongful death and is not actionable by the estate under the survival statute”) As Gentry explained, “while a personal injury case enables an injured party to recover damages for the injuries he has sustained, a wrongful death action is intended to compensate the heirs of the deceased for losses stemming from the death of the injured party.” Id. at 1120 (citing Sheets v. Graco, Inc., 292 N.W.2d 63, 67 (Mo.1980)).

¶25. In Thiroux v. Austin, 749 So.2d 1040 (Miss.1999), this Court modified the applicable limitations period. Noting that the wrongful death statute itself did not contain its own statute of limitations, this Coui’t held that such actions were therefore “limited by the statute of limitation applicable to the tort resulting in the wrongful death.” Id. at 1042. For example, if the wrongful death was caused by an intentional tort such as assault, the one-year statute of limitations specified by Section 15-1-35 would govern. Id. While Thi-roux changed the length of the limitations period for wrongful death actions involving certain torts, it did not alter the long-held rule that only death could initiate the ticking of the clock.

¶ 26. However, in Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923, this Court overruled Gentry, marking a substantial departure from this state’s ancient rule. The Jenkins majority read Thi-roux’s holding that wrongful death actions are “limited by the statute of limitation applicable to the tort resulting in the wrongful death” to mean that the statute of limitations for wrongful death actions begins to run, not at the date of death, but on the date the underlying tort occurred. Jenkins, 933 So.2d at 926. This was an unfortunate and calamitous misinterpretation. In Thiroux, 749 So.2d at 1042, the Court simply had held that the limitations period is governed by that of the underlying tort. This means that the limitations period is the same as the one that applies to the underlying tort. It did not hold, as Jenkins mistakenly concluded, that the statute of limitations begins to run at the time of the underlying tort. Therefore, it is Jenkins that is out of line with Thiroux, and not Gentry,

¶ 27. But this new rule would not last long. In Caves v. Yarbrough, 991 So.2d 142, as in the present case, this Court was asked to determine when the statute of limitations for a wrongful death claim brought against an MTCA defendant begins to run. The Court noted that the MTCA provides that all actions, “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.” Id. at 147 (quoting Miss. Code Ann. § 11 — 46— 11(3)). Finding this language ambiguous, the Caves Court looked to other language in the same statute which referenced “the time at which the cause of action accrued.” Id. (quoting Miss.Code Ann. § 11-46-11(4)). The Court then determined that the statute of limitations for claims brought against MTCA defendants “begins to run when all the elements of a tort, or cause of action, are present.” Id.

¶ 28. Prior to Jenkins, it had been clear that claims brought under the wrongful death statute could not accrue, and the cause of action was not vested, until the alleged victim’s death. But, with Jenkins as precedent, the Caves majority was compelled to look elsewhere for guidance. Relying on a Louisiana Supreme Court decision interpreting the Louisiana wrongful death statute, Caves held that the Mississippi wrongful death statute encompassed several different types of claims. Caves further determined that the time the limitations period began to run was determined by the type of claim:

To summarize, the Mississippi wrongful-death statute, despite the Legislature’s assigned nomenclature, encompasses all claims — ’including survival claims which could have been brought by the decedent, wrongful-death claims, estate claims, and other claims — resulting from a tort which proximately caused a death. And where death is not an immediate result of the tort, the limitation periods for the various kinds of claims may not begin to run at the same time.

Id. at 149-50.

¶ 29. As one studies the Caves opinion, it is unclear exactly what event might trigger the running of the limitations period for a particular claim. This Court attempted to clarify the rule in University of Mississippi Medical Center v. McGee, 999 So.2d 837 (Miss.2008). In McGee, the decedent underwent a hysterectomy on September 1, 2004. Id. at 839. When she returned to the hospital on September 7, 2004, it was discovered that a sponge had been left in her abdomen during surgery. Id. She died on December 19, 2004, and the hospital received a notice-of-claim letter on November 28, 2005. Id. This was within one year of the date of her death, but not within a year of the date the sponge was discovered. The question was which of these events triggered the running of the statute of limitations. According to the Court, Caves held that there were essentially two types of claims that could be brought under the wrongful death statute: wrongful death claims (those personal to the statutory beneficiaries) and survival claims (those personal to the decedent). Id. at 840. The “survival” claims were time-barred because the statute of limitations for those claims began to run on September 7, 2004, the date the sponge was discovered. Id. The “wrongful death” claims were not time-barred because the statute of limitations for these claims could not begin to run until December 19, 2004, the date of death. Id. Thus, according to McGee, the limitations period for “survival” claims begins to run on the date of the injury or its discovery, while the limitations period for “wrongful death” claims begins to run on the date of death.

¶ 30. Yet, never before, not even in Jenkins, had this Court made such a distinction between different types of claims brought pursuant to the wrongful death statute. Indeed, this Court had rejected similar arguments, holding that there could be only one statutory wrongful death claim. For example, in Wilks v. American Tobacco Company, 680 So.2d 839 (Miss.1996), the wrongful death heirs claimed that the decedent had died as a result of smoking cigarettes manufactured by the defendant. The jury found that death was unrelated to smoking. Id. at 840. On appeal, the claimants argued that they still should be entitled to recover damages for the lung problems the decedent suffered during his lifetime as a result of smoking. Id. The Court held that because the injuries were unrelated to death, recovery was appropriate only under the survival statute, Mississippi Code Section 91-7-233, and not the wrongful death statute. Id. at 843 (citing Berryhill v. Nichols, 171 Miss. 769, 158 So. 470, 471 (1935)).

¶ 31. Put another way, “[w]hen the same wrongful conduct causes both personal injury and death, at the instant of death, the recovery for the personal injury is embraced by the ‘one suit’ for wrongful death and is not actionable by the estate under the survival statute.” England, 846 So.2d at 1068 (Miss.Ct.App.2003) (citing Edward Hines Yellow Pine Trustees v. Stewart, 135 Miss. 331, 100 So. 12, 14 (1924)). This is a succinct and straightforward statement of Mississippi’s sensible, workable, and time-tested rule on this subject. As there is but one cause of action under the wrongful death statute, the statute of limitations can be triggex-ed only by a single event: the expiration of the decedent’s life.

¶ 32. Nothing is more definite or more easily defined than death. Since the first enactment of the wrongful death statute, the earliest event that could initiate the ticking of the statute of limitations clock was death. That the statute provides for recovery of different types of damages does not change this fundamental precept. Caves misinterpreted the statute, wrongly equating different types of damages with different types of claims. While such an intex-pretation may apply in other states, such as Louisiana, where the wrongful death statute is based on a survival theory, it is inapplicable in Mississippi. In Mississippi, the wrongful death statute “creates a new cause of action that accrues at death in favor of the heirs listed in the statute.” England, 846 So.2d at 1066 (citing Gentry, 606 So.2d at 1119; Byars v. Austin, 218 So.2d 11, 15 (Miss.1969)).

¶ 33. Simply put, Jenkins, Caves, and McGee were wrongly decided, and the statute of limitations for the single cause of action that may be brought pursuant to the wrongful death statute cannot begin to run until the date of death. In the present case, the date of death was December 6, 2004. Because the hospital x-eceived its notice of claim on the one-year anniversary of Mr. Cook’s death, and because the statute of limitations was tolled until Saul filed her complaint, her claims are not time-barred.

GRAVES, P.J., JOINS THIS OPINION.

      . In dismissing Saul’s claims, the trial court considered matters outside Saul's complaint and SCRMC’s answer. Thus, the trial court should have converted SCRMC's Rule 12(b)(6) motion into a motion for summary judgment and dealt with it accordingly under Rule 56. Miss. R. Civ. P. 12(b). However, Saul has not asserted as an error the trial court’s failure to convert the Rule 12(b)(6) motion, so we do not address it here. See Edmonds v. Williamson, 13 So.3d 1283, 1289 (Miss.2009) (citing Trinity Mission Health & Rehab of Holly Springs, LLC v. Lawrence, 19 So.3d 647, 651 (Miss.2009); In re Hood ex rel. State Tobacco Litigation, 958 So.2d 790, 815 n. 17 (Miss.2007); Collins v. Tallahatchie County, 876 So.2d 284, 286 n. 5 (Miss.2004)).

      . Only the hospital has been dismissed. According to SCRMC’s motion to dismiss, the physicians were not hospital employees, and the MTCA’s one-year statute of limitations does not apply to the claims against these individual defendants.

      . When we say "wrongful-death” claims, with quotation marks, we are referring to the beneficiaries' claims, brought within the wrongful-death action, for loss of society, etc. When referring to the entire lawsuit, we say wrongful-death action or wrongful-death suit, without quotation marks.

      . To the extent our decision in Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923 (Miss.2006), implies otherwise, we clarify now that the so-called "wrongful-death” claims included in the wrongful-death action cannot accrue, and the statute of limitations for those claims cannot begin to run, until death.

      .Saul is Cook’s personal representative, so her knowledge could be operative as well. Caves, 991 So.2d at 156. But her knowledge, if any, of SCRMC’s alleged negligence was immaterial until Cook died, because she could not have "stepped into Cook’s shoes” until then. Id. at 148. Thus, December 6, 2005, was the earliest date Saul’s "discovery” of SCRMC's alleged negligence could have triggered the running of the one-year statute of limitations. Were we to apply the discovery rule to Saul’s knowledge alone, therefore, we would conclude that all of Saul’s claims were timely brought because SCRMC received the notice-of-claim letter on December 6, 2006, exactly one year from that date.

      . The Jenkins opinion also relied on Lee v. Thompson, 859 So.2d 981 (Miss.2003), Wells v. Radiator Specialty Co., 413 F.Supp.2d 778 (S.D.Miss.2006), and Beck v. Koppers, Inc., 2005 WL 2715910 (N.D.Miss.2005), but these cases do not hold that the statute of limitations for wrongful death actions begins to run on the date of the wrongful act. In Lee, 859 So.2d at 982-83, the death and the underlying tort occurred on the same date, so there was no question when the limitations period began to run. This Court simply held that because the underlying tort was murder, deemed an intentional tort by the Court, the one-year limitations period for so-called intentional torts would apply. Id. at 990. As for the federal cases, Wells, 413 F.Supp.2d 778, and Beck, 2005 WL 2715910, the district courts were examining the issue of the discovery rule as it applied to latent injury or disease, and neither case stands for the proposition that the wrongful death statute begins to run on the date of the underlying tort.
      Furthermore, on the same day that Jenkins was decided, this Court issued Proli v. Hathorn, 928 So.2d 169 (Miss.2006), which unmistakably found that the statute of limitations for a wrongful death action begins to run on the date of death and not on the date of injury. In Proli, the patient was injured on May 2, 2002, but did not die until May 18, 2002. Id. at 170. This Court plainly said, ‘'[h]ere, the statute of limitations began to run on May 18, 2002,” the date of death. Id. at 175.
      For an in-depth discussion of Jenkins and the history of the Mississippi wrongful death statute, see Patrick J. Schepens, Comment, "I'm Not Dead Yet!": An Analysis of the Recent Supreme Court of Mississippi’s Wrongful Death Jurisprudence, 27 Miss. C.L.Rev. 235 (2007-2008).


source: Caselaw Access Project

author: DICKINSON, Justice, GRAVES, Presiding Justice,

license: Public Domain

text:
    Brenda BLOODGOOD v. Nikesha LEATHERWOOD, April Garcia, Individually and as Parent and Next Friend of Monique Garcia, Vincent Buck and Azyia Buck, Minors; Kenneth Anderson; and American Family Insurance.
    No. 2008-IA-01811-SCT.
    Supreme Court of Mississippi.
    Jan. 21, 2010.

      M. Reed Martz, attorney for appellant.
    Bo Roland, attorneys for appellee.
    Before CARLSON, P.J., DICKINSON and PIERCE, JJ.
   DICKINSON, Justice,

for the Court.

¶ 1. Service via certified mail upon an out-of-state defendant was returned as “unclaimed/refused.” Because the defendant was not properly served, we reverse and remand the case for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 23, 2002, a motor vehicle collision occurred near Belden, Mississippi, between vehicles driven by Nikesha Leath-erwood and Brenda Bloodgood, a Tennessee resident. Leatherwood and her passengers (“Leatherwood”) originally filed suit against Bloodgood on March 25, 2003, in the Lee County Circuit Court. The suit was dismissed without prejudice on February 15, 2005, for failure to serve Bloodgood with process. The instant suit was filed in the Lee County Court on June 17, 2005.

¶ 3. Leatherwood obtained a 120-day extension of time for service on October 11, 2005, and she made numerous unsuccessful attempts to serve Bloodgood personally. Leatherwood eventually attempted to serve Bloodgood via certified mail per Mississippi Rule of Civil Procedure 4(c)(5). The U.S. Postal Service attempted to deliver the summons and complaint on December 22, 2005; December 28, 2005; and January 6, 2006. The mailing was eventually returned to sender marked “Unclaimed/Refused.” This is a new, singular designation used by the Postal Service x-ather than the prior practice of returning a letter as either “unclaimed” or “refused.”

¶ 4. On July 14, 2006, Bloodgood, via special appearance, filed her answer and raised the issue of improper service with a request that the action against her be dismissed. Bloodgood alleges the statute of limitations for bringing the action expired on August 19, 2006. On October 6, 2006, Bloodgood filed a revised motion to dismiss, asking that the action against her be dismissed with prejudice since the statute of limitations had expired. Bloodgood claims that she never refused the certified mailing. There is no dispute that sei’vice was attempted at the coi’rect residential address.

¶ 5. On October 16, 2008, the trial judge issued an order finding that Bloodgood was effectively served as of January 1, 2006. The order stated that “[t]he Court is unwilling to penalize the Plaintiffs because of the methods of operation of the United States Postal Service, specifically that the Postal Service did not state whether the envelope was either refused or unclaimed.” From that oi’der, this appeal is taken.

ISSUES RAISED

¶ 6. The ultimate issue in this appeal is whether the tidal judge px-operly denied Bloodgood’s motion to dismiss for insufficiency of process. Bloodgood raises the following issues:

I. Whether Mississippi’s Non-Resident Motorist Statute, Miss.Code Ann. § 13-3-63, was the exclusive method by which Leatheiwood should have effected service on Bloodgood.
II. Whether the certified mailing by Leatherwood, returned as “unclaimed/refused,” was insufficient to comply with the requirements of Mississippi Rule of Civil Procedure 4(c)(5).
III. If service is found to be improper, whether this action should be dismissed.

STANDARD OF REVIEW

¶ 7. This Court reviews de novo a trial court’s grant or denial of a motion to dismiss. Fletcher v. Limeco Corp., 996 So.2d 773, 776 (Miss.2008) (citing Vicksburg Partners, L.P. v. Stephens, 911 So.2d 507, 513 (Miss.2005)).

ANALYSIS

I. Whether Mississippi Code Section 13-3-63 provides the exclusive method by which Bloodgood should have been served.

¶ 8. Bloodgood first argues that service upon her should have been accomplished through Mississippi’s nonresident motorist statute, Mississippi Code Section 13-3-63, rather than Mississippi Rule of Civil Procedure 4(c)(5). Section 13-3-63 provides, in pertinent part:

The acceptance by a nonresident of the rights and privileges conferred by the provisions of this section, as evidenced by his operating, either in person or by agent or employee, a motor vehicle upon any public street, road or highway of this state, or elsewhere in this state, or the operation by a nonresident of a motor vehicle on any public street, road or highway of this state, or elsewhere in this state, other than under this section, shall be deemed equivalent to an appointment by such nonresident of the Secretary of State of the State of Mississippi to be his true and lawful attorney, upon whom may be served all lawful processes or summonses in any action or proceeding against him, growing out of any accident or collision in rvhich said nonresident may be involved while operating a motor vehicle on such street, road or highway, or elsewhere in this state, and said acceptance or operation shall be a signification of his agreement that any such process or summons against him which is so served shall be of the same legal force and validity as if served on him personally.

Miss.Code Ann. § 13-3-63 (Rev.2002) (emphasis added).

¶ 9. Although Bloodgood cites numerous cases in which this Court has endorsed Section 13-3-63 as an appropriate method by which nonresidents may be served, none of them supports her contention that it is the exclusive method, and one even contradicts this point. See Trailer Exp., Inc. v. Gammill, 403 So.2d 1292, 1293 (Miss.1981) (“It is our opinion that appel-lee had her choice as to the manner of serving appellant.”) The plain language of the statute says that service “may” be served pursuant to its provisions. Additionally, the Mississippi long-arm statute, Section 13-3-57, provides:

Any nonresident person ... who shall commit a tort in whole or in part in this state against a resident or nonresident of this state ... shall thereby be subjected to the jurisdiction of the courts of this state. Service of summons and process upon the defendant shall be had or made as is provided by the Mississippi Rules of Civil Procedure.

Miss.Code Ann. § 13-3-57 (Rev.2002). Mississippi Rule of Civil Procedure 4(c)(5) provides: “In addition to service by any other method provided by this rule, a summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by certified mail.” Miss. R. Civ. P. 4(c)(5).

¶ 10. Section 13-3-63 merely provides an alternative method to serve a particular class of out-of-state defendants. Furthermore, even if the statute provided an exclusive method of service, it would conflict with Rule 4. This Court is vested with the inherent power to promulgate procedural rules. Newell v. State, 308 So.2d 71, 76 (Miss.1975). Accordingly, this issue is without merit.

II. Whether Bloodgood was properly served pursuant to Rule 4(c)(5).

¶ 11. Bloodgood argues that she was never properly served with process as required by Mississippi Rule of Civil Procedure 4(c)(5). The rule provides:

(5) Service by Certified Mail on Person Outside State. In addition to service by any other method provided by this rule, a summons may be served on a person outside this state by sending a copy of the summons and of the complaint to the person to be served by certified mail, return receipt requested. Where the defendant is a natural person, the envelope containing the summons and complaint shall be marked “restricted delivery.” Service by this method shall be deemed complete as of the date of delivery as evidenced by the return receipt or by the returned envelope marked “Refused. ”

Miss. R. Civ. P. 4(c)(5) (emphasis added).

¶ 12. Bloodgood contends that the service of process on her was deficient because (1) the envelope was not marked as restricted delivery, and (2) the mailing was returned to sender with the new postal designation of “unclaimed/refused” rather than as either “unclaimed” or “refused.”

A. “Restricted Delivery”

¶ 13. Bloodgood first argues that Leatherwood did not comply with the rule because the envelope was not marked “restricted delivery.” A “mark” is defined as a “symbol, impression, or feature on something, usu[ally] to identify it or distinguish it from something else.” Black’s Law Dictionary 808-09 (8th ed.2005). In the instant case, the envelope had an attached return receipt containing the words “4. Restricted Delivery? {Extra Fee)” with a checked box beside it. The attached receipt plainly marked the mailing for restricted delivery as contemplated by Rule 4, and this issue is without merit.

B. “Unclaimed/Refused”

¶ 14. Bloodgood next argues that service was not proper under Rule 4(c)(5) because the mailing was returned with the new postal designation “unclaimed/refused.” This designation is problematic because it combines the previously distinct designations of “unclaimed” and “refused,” which have different meaning and effect under our rules. See Jones v. Flowers, 547 U.S. 220, 229-35, 126 S.Ct. 1708, 1716-719, 164 L.Ed.2d 415 (2006); see Young v. Huron Smith Oil Co., Inc., 564 So.2d 36, 37 (Miss.1990).

¶ 15. A return envelope marked “refused,” as required by Rule 4(c)(5), denotes that the Postal Service actually attempted delivery on the defendant, who refused to accept it. A returned envelope marked “unclaimed” simply means that the Postal Service was unsuccessful in delivering the mailing to the defendant, whether because delivery was attempted at the wrong address, the defendant simply was not home at the time the Postal Service attempted delivery, or some other reason.

¶ 16. Leatherwood argues that, because the return envelope literally had the word “refused” on it, it should be treated as being in compliance with the rule. In other words, she insists that we should treat “unclaimed/refused” as the equivalent of “refused.” This argument fails. As stated above, “unclaimed” and “refused” have two entirely different meanings, and we have no way to know which applied in this case. When drafting our rules, this Court included the requirement that, for service to be effective, an undelivered mailing must actually have been refused by the defendant, as evidenced by the returned envelope marked “refused.” A returned envelope marked “unclaimed” is insufficient to satisfy service requirements under Rule 4(c)(5). Additionally, the United States Supreme Court has held that a certified mailing returned as “unclaimed” is insufficient to satisfy constitutional due process requirements for service of process. See Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006) (holding that, after a mailed notice was returned unclaimed, a state was required by the Due Process Clause of the Fourteenth Amendment to take additional reasonable steps to notify the owner before the sale could proceed).

¶ 17. The designation of “unclaimed/refused” renders impossible a determination whether the mailing was refused or unclaimed. Therefore, the service of process upon Bloodgood failed to comply with Rule 4(c)(5) and consequently, the trial court erred by finding that Bloodgood was properly served.

III. Whether this Action Should be Dismissed.

¶ 18. Bloodgood next argues that, since service was not effectuated within 120 days of filing the complaint, it should be dismissed. Bloodgood argues that, because the statute of limitations expired August 19, 2006, the dismissal should be with prejudice. This Court finds that dismissal is not warranted at this juncture in the proceedings.

¶ 19. Mississippi Rule of Civil Procedure 4(h) provides that if service of the summons and complaint is not made upon a defendant within 120 days after the filing of complaint, the action shall be dismissed unless the plaintiff can show good cause. The filing of a complaint tolls the applicable statute of limitations for 120 days, but if the plaintiff fails to serve process on the defendant within that 120-day period, and in the absence of an extension of time for service of process, the statute of limitations begins to run again automatically. Holmes v. Coast Transit Auth., 815 So.2d 1183, 1185 (Miss.2002). A plaintiff who does not serve the defendant within the 120-day deadline must either refile the complaint before the statute of limitations expires or show good cause for failing to serve the defendant within the 120-day period; otherwise, dismissal is proper. Id. “The rule therefore provides that the plaintiff will have an opportunity to show good cause after the 120 days period has elapsed.” Webster v. Webster, 834 So.2d 26, 29 (Miss.2002). The plaintiff has the burden of establishing good cause. Holmes, 815 So.2d at 1185.

¶ 20. Regarding what constitutes “good cause,” this Court has remarked that:

[Gjood cause is likely (but not always) to be found when the plaintiffs failure to complete service in timely fashion is a result of the conduct of a third person, typically the process server, the defendant has evaded service of the process or engaged in misleading conduct, the plaintiff has acted diligently in trying to effect service or there are understandable mitigating circumstances, or the plaintiff is proceeding pro se or in forma pauperis.

Id. at 1186 (quoting 4B Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1137, at 342 (3d ed.2000)).

¶21. While the trial court erred by finding that Bloodgood was served properly, Leatherwood should now be afforded the opportunity to apply for additional time to serve process and to demonstrate whether the circumstances in this case constitute good cause for failing to serve the defendant.

¶22. This matter is remanded to the trial court for a determination as to whether Leatherwood can show good cause for her failure to serve Bloodgood properly. If the trial court determines that good cause existed for failure to serve Blood-good within the 120-day period, Leather-wood should be granted an extension for service of process, during which she may properly effectuate service and proceed with the action.

CONCLUSION

¶ 23. Service of process is not effected properly under Rule 4(c)(5) when the mailing is returned as “unclaimed/refused.” Accordingly, the trial judge erred by finding that Bloodgood was served properly in this case. The judgment of the trial court is reversed, and this matter remanded to the trial court to determine whether the circumstances in this case constitute good cause for Leatherwood’s failure to properly serve Bloodgood within the time period prescribed by Mississippi Rule of Civil Procedure 4(h).

¶ 24. REVERSED AND REMANDED.

CARLSON, P.J., RANDOLPH, LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND KITCHENS, J.

GRAVES, Presiding Justice,

Dissenting:

¶ 25. I disagree with the majority’s finding that service of process on Blood-good failed to comply with Rule 4(c)(5), and therefore I dissent. I would find that service of process was sufficient under Rule 4(c)(5) for the following reasons: the certified mailing containing the summons and complaint was returned to the sender ■with the marking “Unclaimed Refused” (a marking including the word “Refused”); it is undisputed that the address at which the U.S. Postal Service attempted to deliver the mailing was the correct address; the Postal Service documented that it had attempted to deliver the mailing at that address on three separate occasions; the Postal Service documented that it had provided notice of each of those attempted deliveries to the addressee; and lastly, Bloodgood evidently was made aware of the summons and complaint, because she filed an answer. These facts, in aggregate, adequately support the trial judge’s finding that Bloodgood was effectually served.

¶ 26. The marking of “Unclaimed Refused” is ambiguous, but it is just as reasonable, if not more so, for a sender of mail to conclude that such a marking indicates that the mailing was refused as it is for a sender to conclude that the mailing was simply unclaimed. The Postal Service defines “Refused” as “[ajddressee refused to accept mail or pay postage charges on it.” United States Postal Service, Domestic Mail Manual (DMM), § 507, Exh. 1.4.1, http://pe.usps.com/text/dmm300/507. htm# wpl112866 (last accessed Jan. 8, 2010). The Postal Service defines “Unclaimed” as “[a]ddressee abandoned or failed to call for mail.” Id. See also Jones v. Flowers, 547 U.S. 220, 245, 126 S.Ct. 1708, 1725, 164 L.Ed.2d 415 (2006) (“ ‘Unclaimed’ ... may indicate that an intended recipient has simply failed or refused to claim mail.”). Based on those definitions, which are readily available to the public, it is just as rational, if not more so, to conclude that a mailing marked “Unclaimed Refused” was refused rather than simply unclaimed.

¶ 27. In addition, regardless of what a sender thinks the “Unclaimed Refused” marking indicates in terms of what actually happened when the Postal Service attempted delivery, the sender reasonably could conclude, as it did in the instant case, that the “Unclaimed Refused” marking fulfills Rule 4(e)(5)’s requirement that the returned mailing be marked “Refused.”

¶ 28. I agree with the majority that a mailing marked “Unclaimed” (and not “Unclaimed Refused”) cannot be said to satisfy the requirement of Rule 4(c)(5) that a returned mailing be marked “Refused;” however, until the Postal Service clarifies the meaning of “Unclaimed Refused” or Rule 4(c)(5) is amended to clarify that such a marking is insufficient under the Rule, the “Unclaimed Refused” marking must be analyzed as the new, distinct term that it is. Whether it fulfills the requirement of Rule 4(c)(5) can be determined only through consideration of the circumstances in each specific case.

¶ 29. In the instant case, the “Unclaimed Refused” marking, in conjunction with the other relevant facts, supports a finding that Bloodgood was effectually served. As noted above, it is undisputed that the address at which the Postal Service attempted to deliver the mailing was the correct address; the Postal Service documented that it had attempted to deliver the mailing at that address on three separate occasions; the Postal Service documented that it had provided notice of each of those attempted deliveries to the addressee; and Bloodgood evidently was made aware of the summons and complaint, because she filed an answer. From these facts, despite Bloodgood’s claims to the contrary, it is most logical to conclude that Bloodgood either outright refused the mailing or effectively refused it by failing to retrieve it from the post office after receiving notices that the post office was holding it for her. Therefore, I would find that service of process was sufficient under Rule 4(c)(5).

¶ 30. Accordingly, I must dissent and would affirm the trial court’s order finding that service upon Bloodgood was complete and effective on or about January 1, 2006.

WALLER, C.J., AND KITCHENS, J., JOIN THIS OPINION.

      . The full text of Rule 4(h) is as follows:
      Summons: Time Limit for Service. 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.
      Miss. R. Civ. P. 4(h).

      . While use of the majority's definitions of "Refused” and "Unclaimed" would not affect my conclusions, it should be noted that the majority includes no citation for its definitions.
      Furthermore, the two cases the majority cites as support for the assertion that “ 'unclaimed' and 'refused' ... have different meaning and effect under our rules” do not necessarily support that statement. The two cases—Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), and Young v. Huron Smith Oil Co., 564 So.2d 36 (Miss.1990)—neither mention the term “Refused” nor contrast the term "Refused” with the term "Unclaimed.”
      In addition, Jones v. Flowers did not unequivocally state, as the majority suggests, that a certified mailing returned as "unclaimed” is insufficient service of process to satisfy constitutional due process requirements. Rather, as the majority more or less notes in its explanatory parenthetical to the Jones case, Jones held that "when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.” Jones, 547 U.S. at 225, 126 S.Ct. 1708. In other words, the Jones court was ruling on the sufficiency of process in one specific situation, and it also noted that additional process was due only if practicable.

      . The fact that Leatherwood made numerous unsuccessful attempts to serve Bloodgood personally is further evidence that Bloodgood was attempting to avoid acceptance of the summons and complaint.


author: PIERCE, Justice, KITCHENS, Justice,

text:
    Mary Reed EVANS v. STATE of Mississippi.
    No. 2007-CT-00443-SCT.
    Supreme Court of Mississippi.
    Jan. 21, 2010.

      Joseph Joshua Stevens, Jr., attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   ON WRIT OF CERTIORARI

PIERCE, Justice,

for the Court.

¶ 1. The Justice Court of Monroe County convicted Mary Reed Evans of driving under the influence (DUI), first offense. Evans appealed to the Circuit Court of Monroe County. After a trial de novo without a jury, the circuit court came to the same result. Evans appealed, and the Court of Appeals, in a six-to-three decision, reversed the conviction and remanded the matter for a new trial. The Court of Appeals found that the circuit court had erred in its application of Porter v. State, 749 So.2d 250 (Miss.Ct.App.1999), and also found that Dr. A.K. Rosenhan was qualified to give his expert opinion. The matter is now before this Court on writ of certiorari, and we find error in part of the Court of Appeals’ analysis. We therefore reverse the judgment of the Monroe County Circuit Court and remand this matter for a new trial, although for different reasons than those of the Court of Appeals, which also reversed and remanded.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Late in the afternoon of July 19, 2006, Evans, who lives in Prairie, Mississippi, drove to pick up her friend, Julann Callender, who lives in Aberdeen, Mississippi. The two women traveled to Tupelo to shop at Sam’s Club. Once they finished shopping, they went to Woody’s, a restaurant and lounge in Tupelo, where they stayed from approximately 6:00 p.m. until 11:00 p.m. During this time, they had dinner, and Evans said she drank four Bud Lights. Both women claim the only alcohol they consumed that evening was at Woody’s. They left the restaurant and drove back to Aberdeen. At approximately midnight, Evans dropped off Callender at her home. Callender testified that she offered Evans a beer as she was leaving, which Evans accepted. Callender claimed that Evans did not appear to be intoxicated.

¶ 3. Evans then proceeded home to Prairie along Highway 382. A severe storm that evening had left trees and power lines down in the area. Approximately two miles from Evans’s home, Mississippi Highway Patrolman Andrew Sisk had the eastbound lane of Highway 382 partially blocked as emergency vehicles were cleaning the debris from the highway. Officer Sisk was inside his patrol car with his headlights and blue lights on. He testified he was attempting to redirect traffic to a county road. When Evans came upon this area in the westbound lane, she proceeded slowly, but she did not stop her vehicle. Officer Sisk, wanting her to stop, tried to get Evans’s attention by shining his spotlight on her and in her car, but to no avail. Feeling she should have known to stop, Officer Sisk pulled Evans over approximately one-half mile from the area. When he approached her vehicle, he noticed the smell of alcohol emanating from Evans’s vehicle. He saw an open beer can on the console (the one Callender had given Evans); however, Evans testified she had not consumed any of it. Officer Sisk also saw three or four unopened cans of beer in Evans’s back seat. When asked whether she had had any alcohol to drink that evening, Evans admitted to Officer Sisk she had been drinking beer at Woody’s that evening. He proceeded to administer an alcohol test with a portable intoxilyzer device, which detected the presence of alcohol on her breath, but he did not conduct any field sobriety tests. Evans was then arrested and taken to the Monroe County Sheriffs Office, where she agreed to have a blood alcohol concentration (BAC) test on the Intoxilyzer 8000 machine.

¶ 4. However, before Evans and Officer Sisk departed for the sheriffs office, they had to wait for a wrecker from Aberdeen to tow Evans’s car, as this was standard operating procedure. Evans’s DUI ticket showed the time of the stop as 12:50 a.m. By the time Evans had completed the paperwork at the sheriffs office and the second BAC test was administered, it was 1:58 a.m. After a delay of one hour and eight minutes from the time she was pulled over until the time of the test, Evans’s BAC was determined to be .09%, or .01% over the legal limit of .08%, pursuant to Mississippi Code Section 63 — 11—30(l)(c) (Rev.2004). Therefore, she was charged with DUI, first offense.

¶ 5. The Justice Court of Monroe County convicted Evans of DUI, first offense. She appealed the conviction to the Circuit Court of Monroe County, which held a trial de novo without a jury, again finding Evans guilty. Prior to the trial, the State moved in limine to exclude the testimony of the defense’s expert witness, Dr. A.K. Rosenhan, who was to testify regarding the absorption rate of alcohol. The State argued that since this case was a DUI-per-se violation, the defense was prohibited from introducing evidence of alcohol consumption. The State continued that, in order for the expert to formulate an opinion about Evans’s absorption rate, evidence would have to be introduced about her consumption of alcohol, which the State claimed is prohibited by Porter v. State, 749 So.2d 250 (Miss.Ct.App.1999). Therefore, the State moved to prohibit the introduction of any evidence from either expert or lay witnesses who would testify as to the manner or timing of her consumption of alcohol. After the defense argued Porter was inapplicable to the present case, the circuit court judge granted the State’s oral motion in limine. However, Dr. Rosenhan was allowed to proffer his testimony for the sole purpose of creating a record. Evans appealed, and the Court of Appeals, in a six-three decision, reversed the conviction and remanded the matter for a new trial based on the perceived misapplication of the Porter case and the qualifications of Dr. Rosenhan as an expert witness. This Court granted the State’s petition for a writ of certiorari.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 6. The standard of review for the admission or exclusion of evidence is an abuse of discretion. Miss. Transp. Comm’n v. McLemore, 863 So.2d 31, 34(¶ 4) (Miss.2003). Further, “the admission of expert testimony is within the sound discretion of the trial judge. Therefore, the decision of a trial judge will stand ‘unless we conclude that the discretion was arbitrary and clearly erroneous, amounting to an abuse of discretion.’ ” Id. (internal citations omitted). Moreover, a motion in limine should be granted only if “(1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury.” Whittley v. City of Meridian, 530 So.2d 1341, 1344 (Miss.1988). Additionally, “[t]he discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence.” Beech v. Leaf River Forest Prods., Inc., 691 So.2d 446, 448 (Miss.1997) (citing Johnston v. State, 567 So.2d 237, 238 (Miss.1990)). See Miss. R. Evid. 103(a).

I. WHETHER THE COURT OF APPEALS ERRED IN THE APPLICATION OF THE PORTER CASE.

¶ 7. The issue here pertains to Evans’s desire to introduce testimony concerning the precise measurement of alcohol in her bloodstream at the time she was driving and arrested. The State argued at trial that Porter v. State, 749 So.2d 250 (Miss.Ct.App.1999), bars any attempt to introduce evidence that precludes a finding that Evans was guilty under Section 63-11 — 30(l)(c) of the Mississippi Code, which is the DUI-per-se portion of the statute governing blood-alcohol levels. See Miss. Code Ann. § 63-ll-30(l)(c) (Rev.2004). The defense counters that Porter is distinguishable and inapplicable to the matter at hand. Evans argues that the holding in Porter bars only the admission of evidence in an attempt to prove that alcohol consumption did not impair the driver. Evans claims that she is attempting to introduce evidence that her BAC was below the legal limit at the time she was driving, and she is not attempting to prove that her alcohol consumption failed to impair her driving. This Court agrees with Evans’s assertion and with the Court of Appeals opinion regarding the inapplicability of the Porter decision.

¶ 8. The circuit court judge accepted the interpretation of Porter offered by the State whereby the defense is prohibited from introducing evidence from either expert or lay witnesses regarding alcohol consumption because this is a “DUI-per-se case,” and an admissible Intoxilyzer test result showed Evans’s BAC to be over the legal limit. The State explained, and the circuit court agreed, that if this evidence on alcohol consumption was inadmissible, Dr. Rosenhan’s expert testimony then became irrelevant. This is because, in order for the expert to formulate his opinion about Evans’s BAC at the time she was pulled over, evidence on consumption would have to be admitted to apply his retrograde-extrapolation formula to the facts of the case. The Court of Appeals reversed the circuit court and held that Porter was inapplicable to this case because Evans was attempting to introduce evidence to prove her blood-alcohol content was below the legal limit, rather than attempting to prove she was not intoxicated.

¶ 9. We agree with the Court of Appeals and Evans that Porter is distinguishable and not controlling in the instant case. In Porter, after being arrested, the defendant submitted to an Intoxilyzer analysis of his BAC at the police station. Porter, 749 So.2d at 253. His BAC was determined to be .164%. Id. at 253(¶ 5). Porter sought to present evidence that would rebut what he termed “the ‘presumption’ that his blood alcohol content of .164% impaired his ability to operate his vehicle.” Id. at 254-55(¶ 13). There was no issue regarding a lapse of time between Porter’s arrest and the test. At trial, the circuit court granted the State’s motion in limine, and the Court of Appeals found no error. Id. at 255(¶ 15).

¶ 10. To properly understand Porter’s holding in light of our current DUI laws, we must analyze the history of the DUI statute. As the Porter court explained, since an amendment to the DUI statutes in 1983, it is a “per se” violation to operate a vehicle when the defendant’s BAC, as shown through a chemical analysis, is over the legal limit, which at that time was .10%. Id. at 255(¶ 14) (citing Fisher v. City of Eupora, 587 So.2d 878, 888 (Miss.1991)). This Court explained in Fisher that since 1983, there is no longer a statutory “presumption” that a person is intoxicated if he is over the legal limit for BAC, but instead, it is a “per se” violation under Section 63-11-30. Id. This is the “presumption” that Porter was attempting to rebut. Further, in 1991, Section 63-11-39(2), a statute allowing the introduction of evidence on whether or not a person was under the influence of intoxicating liquor which impaired a person’s ability to operate a motor vehicle, was repealed. Id. at 255(¶ 15). Because of this repeal, the Court of Appeals found Porter’s argument nullified, as he could not enter evidence that he was not impaired, because he was prosecuted for a DUI-per-se violation, and not impairment. Id.

¶ 11. Currently, the pertinent Mississippi DUI statute provides in part that it is unlawful for any person to drive or operate a vehicle in Mississippi if he is: (a) under the influence of intoxicating liquor; ... or (c) has an alcohol concentration of eight one-hundredths percent (.08%) or more for persons at or above the legal age to purchase alcoholic beverages in Mississippi. Miss.Code Ann. § 63 — 11—30(l)(a) and (c) (Rev.2004). Section 63 — 11—30(l)(a) is referred to as “common-law DUI,” and it is distinguishable from Section 63-11-30(l)(c), which is referred to as “per-se DUI.” “Common-law DUI” is often used to prosecute defendants when BAC test results are unavailable, or the defendant’s BAC tests are under the legal limit, but there is sufficient evidence to prove the defendant’s ability to operate a vehicle was impaired by the consumption of alcohol. Leuer, 744 So.2d at 268 (¶¶6-7). This evidence of impairment may include slurred speech, bloodshot eyes, or erratic driving. However, in Evans’s case, we do not have any such “impairment” evidence, only her BAC level. Thus, Evans was not prosecuted under the common-law DUI statute, but for a per-se violation under Section 63-ll-30(l)(c).

¶ 12. We read Porter to stand for the proposition that in a DUI-per-se case, the defendant cannot offer evidence regarding whether or not he was under the influence which would impair his ability to drive a vehicle. However, we do not read Porter as holding that in a DUI-per-se case, evidence regarding the consumption of alcohol cannot be introduced to prove whether or not the defendant was at a certain BAC when she was driving a motor vehicle. In the instant case, Evans was not offering Dr. Rosenhan’s testimony on retrograde extrapolation to prove she was not impaired when she was pulled over. Instead, she offered it to prove that she did not have a BAC of .08% or more when she was pulled over; thus, she did not violate Section 63-ll-30(l)(c).

¶ 13. The State interprets Evans’s argument to be that, although her BAC was over the legal limit when she was tested, she was not impaired an horn.' earlier when she was driving; thus, Evans is really-trying to prove, through Dr. Rosenhan’s testimony and other evidence, that her alcohol consumption did not impair her ability to drive. We find the State misinterprets Evans’s argument and her immediate purpose for introducing the evidence. Evans offered the evidence to prove her BAC was not above the legal limit when she was pulled over. Thus, we agree with the analysis and decision of the Court of Appeals finding that Porter is inapplicable in this matter, because Evans was not offering evidence to prove she was not impaired.

II. WHETHER THIS COURT MAY UNDERTAKE THE ISSUE OF THE QUALIFICATIONS OF THE EXPERT WITNESS.

¶ 14. The issue here centers around whether the trial court made a proper determination on the qualifications of Dr. Rosenhan as an expert witness. The Court of Appeals undertook the issue and found Dr. Rosenhan to be a qualified expert witness. However, this Court finds that the trial judge never made a determination of the qualifications of Dr. Rosen-han as an expert witness. He also made no finding on the reliability of his testimony. The trial judge is the gatekeeper who assesses the value of the testimony. Tunica County v. Matthews, 926 So.2d 209, 213 (Miss.2006).

¶ 15. The trial judge ruled that the testimony of Dr. Rosenhan was not admissible due to the holding in the Poster case. However, as the Court of Appeals correctly found, Porter is inapplicable to the facts of this case. In light of this, we must determine whether the trial judge ruled on the qualifications of Dr. Rosenhan as an expert witness and the admissibility of his testimony. In reviewing the record, it is apparent that the trial judge never made a finding on the qualifications of Dr. Rosenhan as an expert witness. Neither did he review the reliability of the testimony consistent with the Mississippi Rules of Evidence. The trial judge stated that he was allowing a record to be made and that was “the only purpose for hearing” the evidence. Since the trial judge is vested with gatekeeping responsibility, it is his duty to determine whether or not a witness is qualified and whether the testimony is reliable, consistent with the standard set out in the Rules of Evidence. See Tunica County, 926 So.2d at 213. The decision by the Court of Appeals on the qualifications of Dr. Rosenhan as an expert was inappropriate, because the circuit court had not made a determination on Dr. Rosenhan’s qualifications to testify. Since the trial court is vested with the responsibility of making an initial determination, and this was not done, we must disagree with the Court of Appeals on this issue. Therefore, this Court finds that the Court of Appeals erred in making a determination of the qualifications of Dr. Rosenhan, because the issue was not properly before it.

¶ 16. We affirm the judgment of the Court of Appeals, although for different reasons, and we reverse the conviction and sentence of the circuit court. We remand this matter to the circuit court for a new trial consistent with this opinion.

¶ 17. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT IS REVERSED AND THIS CASE IS REMANDED FOR A NEW TRIAL.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, AND CHANDLER, JJ, CONCUR. KITCHENS, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, P.J. AND DICKINSON, J.

KITCHENS, Justice,

concurring in result only:

¶ 18. With respect to the majority, I disagree that the question that must be answered by this Court is whether the Court of Appeals erred in its application of Porter v. State, 749 So.2d 250 (Miss.Ct.App.1999), a Court of Appeals opinion that this Court has never addressed. The only question to be addressed by this Court is whether the trial court erred in not allowing Evans to present evidence that her blood alcohol level was below the legal limit of 0.08% at the time she was driving an automobile.

¶ 19. While I agree with the majority opinion that Porter “is inapplicable to the facts of this case,” and that Porter is not controlling of any issue in the case at hand, I am puzzled by the majority’s utilization of Porter as the foundation of its analysis and its apparent eagerness to embrace Porter’s reasoning. That said, I do concur with the majority’s conclusion that Evans is entitled to present evidence in an effort to disprove the State’s contention that her blood alcohol level was over the legal limit at the time she was driving an automobile.

¶ 20. Accordingly, I concur with the majority in result only.

GRAVES, P.J., AND DICKINSON, J., JOIN THIS OPINION.

      . The facts are taken in large part from the Court of Appeals decision.

      . Officer Sisk testified that he administered two BAC tests to Evans on the Intoxilyzer 8000 machine: one at 1:56 a.m. registering .104% and the second one at 1:58 a.m. registering .099%. According to Sisk, Evans's ticket was based on the second test, since it was the lowest reading.

      . A "DUI-per-se” violation means a violation that should be charged as an offense under Section 63-11 — 30(l)(c), "when test results are available and are sufficient to give the officer probable cause” to believe that the person is operating a vehicle with a BAC of .08% or more. Leuer v. City of Flowood, 744 So.2d 266, 268(¶ 7) (Miss.1999) (quoting Young v. City of Brookhaven, 693 So.2d 1355, 1363-64 (Miss.1997) (citation omitted)). See Miss. Code Ann. § 63-11-30(1)(c) (Rev.2004).

      . Portions of the analysis concerning issue number one are taken in whole or in part from the Court of Appeals' majority decision.

      . Although the Court of Appeals has addressed the issue and application of retrograde extrapolation, this Court has not yet ruled on the admissibility of such testimony.

      . In 2002, this standard was changed to .08%. See Miss.Code Ann. § 63 — 11—30(l)(c) (Rev. 2004).

      . In his separate opinion, Justice Kitchens correctly points out that the admissibility of evidence is to be governed by the Mississippi Rules of Evidence. See Whitehurst v. State, 540 So.2d 1319, 1323 (Miss.1989). Nonetheless, this Court has followed statutory provisions regarding evidentiary matters that are not in conflict with the Mississippi Rules of Evidence. Miss. R. Evid. 1103 (''[a]ll eviden-tiary rules, whether provided by statute, court decision or court rule, which are inconsistent with the Mississippi Rules of Evidence are hereby repealed.”) (emphasis added).

      .However, this type of evidence properly could be offered for a violation of Section 63-1 l-30(l)(a).