F & S Sand, Inc. v. Stringfellow

265 So. 3d 170
CourtMississippi Supreme Court
DecidedFebruary 28, 2019
DocketNO. 2017-IA-00962-SCT CONSOLIDATED WITH NO. 2017-IA-00963-SCT; 2017-IA-01049-SCT; 2017-IA-01059-SCT; 2017-IA-01061-SCT
StatusPublished
Cited by5 cases

This text of 265 So. 3d 170 (F & S Sand, Inc. v. Stringfellow) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
F & S Sand, Inc. v. Stringfellow, 265 So. 3d 170 (Mich. 2019).

Opinions

BEAM, JUSTICE, FOR THE COURT:

¶1. This interlocutory appeal comes before the Court following the Jefferson County Circuit Court's denial of Defendants' motions for transfer of venue and summary judgment in a silica case. On appeal, F & S Sand, Inc.; F & S Sand Abrasive Company, Inc.; Dependable Abrasives, Inc. (Dissolved); Mississippi Valley Silica Company, Inc.; Empire Abrasive *173Equipment Corporation; Dravo Basic Materials Company, Inc.; and American Optical Corporation (collectively, "Defendants") ask this Court to review whether venue was proper in Jefferson County and whether the claim was time-barred by the statute of limitations. This Court reverses the Circuit Court's denial of summary judgment and renders judgment in favor of Defendants. The venue issue is moot because the claim is time-barred.

FACTS AND PROCEDURAL HISTORY

¶2. On September 26, 2016, plaintiff Ted Stringfellow filed his second silica complaint in Jefferson County after obtaining dismissal of his first silica case in Georgia in 2015. Stringfellow alleged that his complicated silicosis and silica-related conditions had been caused by exposure to respirable crystalline silica during his work as a sandblaster throughout Mississippi, Alabama, Florida, and Georgia. On November 10, 2016, Stringfellow noticed his own deposition and on May 15, 2017, Defendants filed their motions for summary judgment and transfer of venue.

¶3. In their motion for summary judgment, Defendants provided multiple medical exhibits evidencing Stringfellow's knowledge of the injury dating as far back as November 2007, although Stringfellow contended that he had no knowledge of the injury until he was diagnosed with silicosis in October 2014. In November 2007, Stringfellow presented to the hospital with a cough, and medical records evince that doctors discussed his work history as a construction worker. In May 2008, Stringfellow again presented to the hospital complaining of a cough. After two chest x-rays, he was discharged with a diagnosis of bronchitis, painful respiration, other lung disease, diabetes, liver disorder, cough, and shortness of breath. Stringfellow signed discharge papers recommending that he follow up with a pulmonologist, a recommendation Stringfellow acknowledges he disregarded. Moreover, Stringfellow submitted his medical records, which contained findings consistent with "pneumoconiosis (such as silicosis ...)" to the Social Security Administration for disability. Although the record reflects discrepancies in the timing of the application, either 2008 or 2011, Stringfellow discovered his injury well before the time he filed his complaint.

¶4. At the motion hearing on June 19, 2017, the trial judge stated that, while Stringfellow's failure to follow up was troubling because plaintiffs have a responsibility to investigate an injury, he felt ruling on the motion for summary judgment would have been premature. Thereafter, Defendants petitioned this Court for interlocutory appeal, arguing that the trial court's denial of their motions for summary judgment and transfer of venue was erroneous. The Defendant's petition was granted. M.R.A.P. 5.

LAW AND ANALYSIS

I. Standard of Review

¶5. When considering issues of law, such as statutes of limitation, this Court employs a de novo review. Andrus v. Ellis , 887 So.2d 175, 179 (Miss. 2004). When reviewing a trial court's grant or denial of a motion to dismiss or a motion for summary judgment, this Court likewise applies a de novo standard of review. Whitaker v. Limeco Corp. , 32 So.3d 429, 433-34 (Miss. 2010) (citing Burleson v. Lathem , 968 So.2d 930, 932 (Miss. 2007) ).

II. Whether Stringfellow's claims are time-barred by the statute of limitations.

¶6. Under Mississippi Code Section 15-1-49, a plaintiff's cause of action for a latent *174injury or disease accrues at the point at which he discovered, or by reasonable diligence should have discovered the injury. Section 15-1-49 provides in relevant part,

(1) 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.
(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.

Miss. Code Ann. § 15-1-49 (Rev. 2012).

¶7. In determining whether a plaintiff knew or reasonably should have known that he had an injury, this Court properly considers the symptoms the plaintiff experienced and the action he took as a result. Am. Optical Corp. v. Rankin , 227 So.3d 1062, 1068 (Miss. 2017). To benefit from the discovery rule, "a plaintiff must be reasonably diligent in investigating the circumstances surrounding the injury." Wayne Gen. Hosp. v. Hayes , 868 So.2d 997, 1001 (Miss. 2004). "Because there is no bright line rule, the specific facts of the case will determine whether the plaintiff knew or reasonabl[y] should have known that an injury existed." Rankin , 227 So.3d at 1075 (quoting PPG Architectural Finishes, Inc. v. Lowery , 909 So.2d 47, 51 (Miss. 2005) ). "This Court has observed that an individual's seeking medical attention for side effects or symptoms may show knowledge of an injury, although other persons may not discover an injury until they review pertinent medical records." Id. (quoting id. ). Others might gain enough actual knowledge through personal observation or experience. Id. (citing id. ).

¶8. In Rankin

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
265 So. 3d 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/f-s-sand-inc-v-stringfellow-miss-2019.