IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

Transcription

1 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI FASESCA MONTGOMERY APPELLANT VS. Cause No CA JEREMY HELVESTON AND SAFECO INSURANCE COMPANY OF ILLINOIS APPELLEES APPEAL FROM THE CIRCUIT COURT OF STONE COUNTY, MISSISSIPPI SECOND JUDICIAL DISTRICT BRIEF OF SAFECO INSURANCE COMPANY OF ILLINOIS, APPELLEE ORAL ARGUMENT NOT REQUESTED #. W. Wright Hill, Jr., MSi8B:~' Jan F. Gadow, MSB PAGE, KRUGER & HOLLAND, P.A. 10 Canebrake Blvd., Suite 200 P.O. Box 1163 Jackson, MS (601) (601) facsimile COUNSEL FOR SAFECO INSURANCE COMPANY OF ILLINOIS, APPELLEE

2 CERTIFICATE OF INTERESTED PERSONS In order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal, the undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case: a. Falesca Montgomery, Appellant; b. Andrew C. Burrell, Counsel for Appellant; c. Safeco Insurance Company of Illinois, Appellee; d. W. Wright Hill, Jr., Jan F. Gadow, Page Kruger & Holland, PLLC, Counsel for Appellee Safeco; e. Jeremy Helveston, Appellee; f. Honorable Roger Clark, trial judge. THIS, the '7~ day of July, atk/z~ 'right Hill, Jr. Jan F. Gadow i

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii STATEMENT REGARDING ORAL ARGUMENT... v STATEMENT OF THE ISSUE... vi I. INTRODUCTION... 1 II. STATEMENT OF THE CASE... ;'... 1 III. UNDISPUTED FACTS... 2 IV. SUMMARY OF THE ARGUMENT V. LEGAL ARGUMENT... 4 The Circuit Court Properly Granted Safeco's Motion to Dismiss because Montgomery's Claim is Barred by the Applicable Statute of Limitations....4 VI. CONCLUSION CERTIFICATE OF SERViCE ii

4 CASES TABLE OF AUTHORITIES Anderson v. R&D Foods, Inc., 913 SO.2d 394 (Miss. App. 2005)... 4 Bailey v. State Farm, 621 F.Supp (S.D.Miss. 1985) Bolden v. Brooks, 138 Fed.Appx. 601, 2005 WL (5 th Cir. 2005) Harris v. Am. Motorist Ins. Co., 126 SO.2d 870 (Miss. 1961)... 5, 15 Jackson v. State Farm, 880 SO.2d 336 (Miss. 2004)... 5, 6, 7, 8, 9, 11, 14 Lawler v. GEICO, 569 SO.2d 1151 (Miss. 1990) Madison v. GEICO, 49 SO. 3d 1166 (Miss. App. 2010)... 5, 8, 9, 10, 11 McCool v. Coahoma Opportunities, Inc., 45 So.3d 711 (Miss. App. 2010) McKee v. Bowers Window & Door Co., Inc., 2011 WL (Miss. April 21, 2011) Mitchell v. Progressive, 965 SO.2d 679 (Miss. 2007)... 5, 13, 14, 15 Stamps v. State Farm Mutual Automobile Insurance Co., 2011 WL (S.D.Miss. May 5,2011)... 5, 6, 7, 8, 14, 15 Walton v. Walton, 52 So.3d 468 (Miss. App. 2011)... 4 iii

5 STATUTES Miss. Code Ann , 5, 14 Miss. Code Ann Miss. Code Ann Miss. Code Ann Miss. Code Ann , 13 Miss. Code Ann OTHER M.R.A.P. 34 (a)(3)... v M.R.C.P. 3(a) iv

6 STATEMENT REGARDING ORAL ARGUMENT Appellee submits that oral argument is not necessary to a resolution of the issue on appeal. The issue presented involves application of law to undisputed facts; the parties' positions are clear and the record uncomplicated. The facts and legal arguments are adequately presented in the briefs and appellate record and the decisional process of this Court would not be significantly aided by oral argument. M.R.A.P. 34 (a)(3). v

7 STATEMENT OF THE ISSUE The Circuit Court Properly Granted Safeco's Motion to Dismiss because Montgomery's Claim is Barred by the Applicable Statute of Limitations. vi

8 I. INTRODUCTION The relief Falesca Montgomery seeks through this appeal requires this Court to either turn a blind eye to certain facts in the record or cede control to UM claimant plaintiffs to the extent that the plaintiff alone may subjectively decide when his claim for UM benefits accrues and when the applicable statute of limitations begins to run. Instead, Safeco urges this Court to apply the existing, established law to the undisputed record facts. Such a de novo review will reveal that the trial court properly granted Safeco's motion to dismiss Montgomery's time barred complaint. II. STATEMENT OF THE CASE Falesca Montgomery suffered personal injuries and damages as a result of Jeremy Helveston's negligence in the operation of a motor vehicle on December 5,2005. (C.P.4) Montgomery subsequently filed a complaint against Helveston in the Stone County Circuit Court, Second Judicial District, on November 14, (C.P.3) Montgomery thereafter filed an amended complaint on March 5, 2009, naming Safeco as a defendant for the first time, some three years and three months after the subject accident. (C.P.6-9) With this amended complaint Montgomery sought relief against Safeco, her insurer, based on the premise that Helveston was underinsured or uninsured at the time of the subject accident. (C.P.8) Safeco answered in a timely fashion and asserted various affirmative defenses, including that the statute of limitations had expired, barring Montgomery's claim against Safeco for UM benefits. (C.P.19-23) Following initial discovery, Safeco filed a motion to dismiss in September 2009, 1

9 based on the statute of limitations, which the trial court denied by Order 1 dated February 2010 as being premature. (C.P , 83-84) The Mississippi Supreme Court then denied Safeco's petition for interlocutory appeal in April (C.P.85) Following additional discovery, Safeco filed a second motion to dismiss in November 2010, again urging that the statute of limitations bars Montgomery's claim. (C.P.89-96) After hearing the parties' arguments, the trial court granted Safeco's motion in January (T. 1-18, C.P ) Aggrieved, Montgomery perfected her appeal to this Court. (C.P ) III. UNDISPUTED FACTS Falesca Montgomery and her husband Paul were injured as a result of an automobile accident with Jeremy Helveston on December 5, (C.P. 7-8) Helveston was allegedly negligent, therefore at fault for this accident and for the Montgomerys' injuries. (C.P.7-8) At the time of this accident, the Montgomerys were insured by a policy of automobile insurance issued by Safeco, which policy included uninsured/underinsured motorist ("UM") coverage. (C.P. 8,113) The police report reflects that Helveston owned the vehicle he was driving at the time of the accidene and further reflects that he provided no proof of insurance and identified no insurance company as insuring him at the time of the accident. (C.P. 111) The Montgomerys obtained a copy of this police report approximately a week after the accident. (C. P. 113) Within approximately two weeks after lin this Order, the trial court mistakenly refers to Burnell Fairley as the driver of the vehicle, when in fact Jeremy Helveston was both the driver and owner of the vehicle. (C. P. 8384, C. P ) 2 Montgomery incorrectly states in her brief that the accident report shows the vehicle was owned by Burnell Fairley. Instead, the accident report clearly reflects that Helveston was the owner and driver of the vehicle and Fairley was a passenger. (C.P ) Fairley's insurance coverage or lack thereof is irrelevant to the case at hand. 2

10 the accident, the Montgomerys hired James Clayton Gardner, Sr., Esquire, to represent them in matters related to the subject accident. (C.P. 113, 115) On January 4,2006, Gardner wrote to Safeco, advising of the medical treatment the Montgomerys had received and stating "I believe it is likely that there will be no liability insurance coverage, and would like to take this opportunity to give you notice of the potential for an uninsured motorist claim." (C.P. 116) In another letter, dated January 19, 2006, Gardner submitted to Safeco medical bills and records for Paul and Falesca Montgomery, for Safeco's use in "assisting... with your evaluation of this [UMj claim." (C.P. 117) Paul Montgomery settled his UM claim with Safeco in 2008; he is not a party to this appeal. (T. 7) As to Falesca Montgomery's UM claim, settlement negotiations bore no fruit. Montgomery filed a complaint against only Helveston on November 14, 2008 and later filed an amended complaint on March 5, 2009, three years and three months after the subject accident, naming Safeco as a defendant for the first time and seeking UM benefits. In September 2009 Safeco filed an unsuccessful motion to dismiss based on the statute of limitations, which is one of the affirmative defenses Safeco asserted in its timely answer to Montgomery's complaint. (C.P , 31-34, 83-84) In November 2010, following additional discovery, Safeco filed a second motion to dismiss, again relying on the statute of limitations bar. (C.P ) This time, the trial court agreed and properly granted Safeco's motion. (T. 1-18, C.P ) IV. SUMMARY OF THE ARGUMENT The three year statute of limitations begins to run on a claim for UM benefits when the UM claimant knows or reasonably should know that her damages exceed the 3

11 tortfeasor's available insurance limits. Montgomery knew on December 5, 2005, the date of the subject accident, that she was injured. On or about December 12, 2005, Montgomery received a copy of the accident report reflecting no insurance coverage or carrier for Helveston, the at-fault driver. Montgomery claims that in early January 2006, Helveston advised her by phone that he was uninsured. And Montgomery's attorney wrote to Safeco on January 4, 2006, advising of a potential UM claim, and again on January 19, 2006, providing medical bills and records for Safeco to use in evaluating Montgomery's UM claim. It follows that Montgomery knew or should have known that her damages exceeded Helveston's non-existent insurance limits on December 12, 2005, and/or on January 4, 2006, and/or on January 19, Still, Montgomery did not file her complaint against Safeco for UM benefits until March 5, 2009, more than three years after any of these trigger dates. Consequently, Montgomery's claim against Safeco is barred by the statute of limitations, the trial court properly granted Safeco's motion to dismiss on that ground, and this Court must affirm. V. LEGAL ARGUMENT The Circuit Court Properly Granted Safeco's Motion to Dismiss because Montgomery's Claim is Barred by the Applicable Statute of Limitations. '''The lower court's grant of a motion to dismiss based upon the statute of limitations presents a question of law to which this Court applies de novo review. '" Walton v. Walton, 52 So. 3d 468, 471 m 12) (Miss. App. 2011) (quoting Anderson v. R&D Foods, Inc., 913 So.2d 394, 397 (~ 7) (Miss. App. 2005)). The three year limitations period of Miss. Code Ann. Section applies to a cause of action against an insurer for uninsured motorist 4

12 ("UM") benefits. Madison v. GEICO, 49 SO.3d 1166, 1168 m 8) (Miss. App. 2010) (citing Mitchell v. Progressive, 965 So.2d 679, 683 m 13) (Miss. 2007)). A cause of action for UM benefits accrues and the applicable statute of limitations begins to run when the plaintiff knows or reasonably should know that his damages exceed the limits of insurance available to the alleged tortfeasor. Jackson v. State Farm, 880 So.2d 336, 341 m 25) (Miss. 2004) (citations therein omitted); Madison, 49 SO.3d at 1168 m 9). The plaintiff has the duty to exercise due diligence as a reasonable and prudent man to acquire information so that he may be informed about his claims. Jackson, 880 SO.2d at 342 (~19) (quoting Harris v. Am. Motorist Ins. Co., 126 SO.2d 870, 873 (Miss )). All parties agree that the applicable statute of limitations is Miss. Code Ann Montgomery purports to agree that the statute begins to run when a UM claimant knows or reasonably should know that her damages exceed the alleged tortfeasor's available insurance limits, as set forth in Jackson, supra. In actuality, Montgomery covertly urges this Court to reject the objective "knew or reasonably should have known" standard and replace it with Montgomery's subjective determination of when she in fact knew that Helveston was uninsured. Otherwise, in order to agree with Montgomery's assessment of when she knew or reasonably should have known that her damages exceeded Helveston's non-existent insurance limits, this Court must ignore salient and undisputed record evidence. A federal district court recently recognized Mississippi's objective standard for determining when the statute of limitations begins to run on an action for UM benefits against an insurer. In Stamps v. State Farm Mutual Automobile Insurance Co.,

13 WL (S.D.Miss. May 5,2011), Stamps was involved in a motor vehicle accident with McCree on December 13, On that date, McCree told Stamps that he (McCree) was uninsured and Stamps knew that he (Stamps) was injured. Stamps received the accident report which reflected no insurance coverage for McCree on January 13, 2006, some 31 days after the accident. State Farm, Stamps' insurer, also received the accident report and decided that Stamps was at fault in the accident. Nonetheless, Stamps sued McCree in circuit court and obtained a default judgment for $75,000 on September 6, 2007, which he sent to State Farm on that same date along with a demand that they pay the judgment under his UM coverage. State Farm retained counsel, who advised that the default judgment against McCree was not binding as to State Farm and advised Stamps' attorney that he would have to sue State Farm directly to establish that Stamps was entitled to UM benefits. Stamps filed suit in federal district court on February 2, 2010, seeking UM benefits based on the default judgment against McCree. State Farm moved for summary judgment, claiming that the limitations period began to run on December 13, 2005, the date of the accident, because Stamps knew then that he was injured and that McCree was uninsured; alternatively, State Farm urged that the statute began to run no later than January 13, 2006, when Stamps received the accident report which reflected McCree had no insurance coverage. The district Court found "that State Farm's position is correct" based on Jackson. Stamps, 2011 WL , at **2-3 (citing Jackson, 880 So.2d at 343). Pursuant to Jackson, if the plaintiff knows on the date of the accident that he is injured, and the tortfeasor advises the plaintiff that he is uninsured on that same date, the statute 6

14 begins to run on the date of the accident or, at the latest, by the date the plaintiff receives the accident report reflecting no insurance coverage for the tortfeasor. Stamps, 2011 WL , at *4 (citing Jackson, 880 So.2d at 343). Although Helveston did not directly inform Montgomery on the date of the accident that he was uninsured, Montgomery did know on that date (December 5, 2005) that she was injured. On or about December 12, 2005, Montgomery received the accident report reflecting Helveston had presented no proof of insurance nor had he provided the name of any insurance company as his carrier 3. Although the record does' not reflect this fact, Montgomery states in her brief that on approximately January 4, 2006, she spoke to Helveston by phone and Helveston informed Montgomery he was uninsured. (Appellant's brief, p. 3) Pursuant to Stamps, the statute of limitations began to run no later than December 12, 2005, or alternatively, January 4,2006, because on either of those dates Montgomery knew she was injured and knew or reasonably should have known that Helveston was uninsured. Stamps, 2011 WL , at **2-3 (citing Jackson, 880 So,2d at 343). Accordingly, Montgomery's March 2009 complaint first naming Safeco as a defendant was filed outside the three year statute of limitations. To find otherwise requires ignoring Montgomery's admitted December 12, 2005 receipt of the accident report reflecting no insurance coverage or carrier for Helveston, ignoring Montgomery's claim of that Helveston advised her of his uninsured status in January 2006, or tossing out the 3 The Mississippi Motor Vehicle Safety - Responsibility Law, Miss. Code Ann, , et seq" requires that any owner/operator of a motor vehicle in the state of Mississippi maintain in the vehicle proof of the mandatory minimum amount of liability insurance coverage. Moreover, although Miss. Code Ann has been repealed, the accident report may be used in proving the uninsured status of the owner and operator of a vehicle in a claim for UM benefits. See Miss, Code Ann (3). 7

15 objective "knew or reasonably should have known" standard and replacing it with Montgomery's stated subjective determination of when she knew Helveston was uninsured. Such a standard would allow the plaintiff to unilaterally decide when his cause of action accrues and when the statute of limitations begins to run in an action against an insurer for UM benefits. Admission by the alleged tortfeasor that he is uninsured, as in Stamps, is sufficient to put the plaintiff on notice that his damages exceed the limits of the tortfeasor's available insurance and, accordingly, the statute of limitations begins to run at the time of such an admission. Stamps, 2011 WL , at *4 (citing Jackson, 880 SO.2d at 343); Madison, 49 So.3d at 1168 m 12). The UM claimant's receipt of an accident report with no indication of insurance coverage for the tortfeasor can also put the claimant/plaintiff on notice and, therefore, start the statute of limitations. Stamps, 2011 WL , at **2-3 (citing Jackson, 880 SO.2d at 343). Restated, (1) if a UM claimant is told the tortfeasor is uninsured or (2) if the UM claimant receives an accident report reflecting no insurance coverage for the tortfeasor, that UM claimant should then reasonably know that his damages exceed the tortfeasor's non-existent insurance coverage and this is sufficient to start the statute of limitations. Additionally, the statute of limitations for a UM claim can be triggered by the plaintiffs notice to the UM carrier that there is a UM claim or potential UM claim. See Madison, 49 So.3d at 1168 ('1113). In other words, (3) if a UM claimant puts his carrier on notice of a UM claim, that UM claimant should then reasonably know that his damages exceed the tortfeasor's available insurance limits. In Madison, Ronnie Powell and Bertha Madison were involved in a motor vehicle 8

16 accident on December 6, 2000; Ronnie was driving a car owned and insured by his mother, Mary Powell. Mary's insurance policy specifically excluded Ronnie from coverage. At the scene of the accident, Ronnie told Madison he was uninsured. Madison filed a complaint for negligence against Mary4 on June 17, 2003, alleging Mary was the negligent driver/tortfeasor. On July 8, 2004, Madison filed an amended complaint naming Ronnie as a defendant, alleging he was the negligent driver/tortfeasor and alleging that Mary had negligently entrusted her vehicle to Ronnie. The circuit court entered default judgment against Ronnie on November 30, Mary's liability carrier Settled the negligent entrustment claim with Madison on July 29,2008. On September 26,2008, Madison filed a complaint against GEICO, her carrier, for UM benefits. GEICO moved for summary judgment based on the statute of limitations bar, which the trial court granted. Madison appealed, alleging the statute of limitations did not begin to run until July 29, 2008, when she settled with Mary's carrier for policy limits which were insufficient to cover her medical expenses. Citing Jackson's objective standard, the Mississippi Court of Appeals noted that the three year statute of limitations for a UM claim begins to run when the plaintiff can reasonably know that his damages exceed the alleged tortfeasor's available limits of insurance. Madison, 49 So. 3d at 1168 (~9) (citing Jackson, 880 SO.2d at 343 m 21». The Court of Appeals affirmed the trial court's finding that Madison's September 26, 2008 claim against GEICO was barred by the three year statute of limitations on any of three bases, one of which is particularly instructive for purposes of the case at bar: Madison's 4 The accident report erroneously named Mary as the driver instead of Ronnie. 9

17 counsel had sent letters to GEICO on both September 3,2002, advising of a potential UM claim, and on January 7,2004, giving formal notice of a UM claim. The Court of Appeals found Madison's argument that she was still uncertain as to whether Ronnie was under/uninsured after these letters was "without merit". Madison, 49 SO.3d at 1169 (1J 13). Similarly, Montgomery's attorney wrote to Safeco on January 4, 2006, stating "I believe it is likely that there will be no liability insurance coverage, and would like to take this opportunity to give you notice of the potential for an uninsured motorist claim." (C.P. 116) And on January 19, 2006, Montgomery's counsel submitted to Safeco medical bills and records for Paul and Falesca Montgomery, for Safeco's use in "assisting... with your evaluation of this rum] claim." (C.P. 117) By making a UM claim, Montgomery acknowledged she had a reasonable belief that Helveston was uninsured. For Montgomery to now claim that she was uncertain about whether Helveston was under/uninsured at the time of or after these letters is "without merit". Madison, 49 SO.3d at 1169 (~13). This Court must not allow a party to seek UM benefits against a carrier on the one hand, then years later be heard to complain that at the time he sought such benefits he did not know and should not reasonably have known that the tortfeasor was under/uninsured. Montgomery was reasonably sure enough of Helveston's uninsured status in January 2006 that she sought UM benefits from Safeco, so how can she now claim she did not reasonably know Helveston was uninsured at that time? See Goose v. Gander. Again, Montgomery can succeed on this appeal only if (1) this Court ignores record 5 Lawler v. GEICO, 569 SO.2d 1151, 1155 n.2 (Miss. 1990) (Robertson, J., dissenting). 10

18 evidence (Montgomery's January 2006 demand for UM benefits via her attorney's letters), or (2) this Court rejects the objective "knew or should reasonably have known" standard and replaces it with the plaintiff's subjective determination of when he knew the tortfeasor was uninsured, thereby allowing the plaintiff to unilaterally determine when the cause of action accrues and when the statute of limitations begins to run. Instead, application of the existing law to the undisputed facts in the record shows that the January 2006 letters from Montgomery's counsel to Safeco triggered the statute of limitations for Montgomery's UM claim and Montgomery's March 5, 2009 complaint against Safeco is time barred. See Madison, 49 SO.3d at 1168 (~ 13). Montgomery argues that the statute did not begin to run until Safeco began negotiating her husband's UM claim, in August (Appellant's brief, p. 8) First, this is contrary to the currently accepted objective standard: "Mississippi's accrual law does not look to the offer of settlement as notice of inadequate insurance; instead, it asks when the [plaintiff] knew or reasonably should have known that [the alleged tortfeasor] was uninsured." Bolden v. Brooks, 138 Fed.Appx. 601,604,2005 WL , at *3 (5 th Cir. 2005)6 (citing Jackson, 880 SO.2d at 341). Second, in order to find that the statute of limitations did not begin to run until August 2007, this Court must ignore Montgomery's December 12, 2005 receipt ofthe accident report, which reflects no insurance coverage or carrier for Helveston, her claim of an early January 2006 phone call with Helveston wherein 6 The Boldens, plaintiffs and UM claimants, argued that the statute could not begin to run on the date they received the accident report reflecting the tortfeasor's lack of insurance coverage because Nationwide, their UM carrier, was still unsure whether the tortfeasor was uninsured. Rather, they claimed that they were not notified about the tortfeasor's lack of insurance, thereby the statute could not begin to run, until Nationwide made an offer to settle their UM claims. Bo/den, 138 Fed.Appx. at 604,2005 WL , at *3. 11

19 Helveston advised he was not insured, and her attorney's January 2006 letters to Safeco concerning the Montgomerys' UM claims. Finally, even if Montgomery's proffered standard? is correct, the record does not reflect that negotiations for Paul Montgomery's UM claim began in August Rather, the record reflects that the Montgomerys' attorney wrote to Safeco on January 4, 2006, advising of the Montgomerys' medical treatment and advising of the potential for UM claims and again, on January 19, 2006, at which time he submitted to Safeco medical bills and records for Safeco's use in evaluating the Montgomerys' UM claims. (C.P ) It follows that Montgomery's previous attorney initiated negotiations of Paul Montgomery's UM claim in January Montgomery did not file her complaint against Safeco until March 2009, outside the three year statute of limitations period. Her claim is time barred. Montgomery also argues that the statute of limitations cannot begin to run until after the UM claimant has provided written notice of his claim to the carrier, pursuant to Miss. Code Ann. Section (e). (Appellant's brief, p. 7) Montgomery did not raise this argument in the trial court and she cannot raise this new argument for the first time on appeal. McKee v. Bowers Window & Door Co., Inc., 2011 WL , at *8 n.19 (Miss. April 21, 2011) (citations therein omitted); McCool v. Coahoma Opportunities, Inc., 45 So.3d 711,714 m 14) (Miss. App. 2010). Notwithstanding the procedural bar, this contention lacks merit. The statute Montgomery relies on is wholly inapplicable to this case because it concerns accident and health insurance rather than automobile insurance. Uninsured motorist insurance is a purely statutory creature, created and governed by the 7 That the statute began to run when Safeco began negotiating Paul Montgomery's UM claim. 12

20 UM Act, Miss. Code Ann , et seq. Section is not a part of the UM Act and, therefore, cannot be applicable here. Regardless, Montgomery did put Safeco on notice of her claim - in January 2006, via her attorney's letters. Given these facts, the case at bar is more akin to Mitchell v. Progressive, 965 So.2d 679 (Miss. 2007). Mitchell put Progressive, his UM carrier, on notice of a UM claim within two months after his accident with an uninsured driver, which is when he learned the alleged tortfeasor was uninsured. Mitchell then failed to properly commence an action against Progressive for UM benefits with a validly filed complaint until more than four years after the accident and more than three years after he had learned of the tortfeasor's uninsured status. The trial court dismissed Mitchell's complaint with prejudice because it was time barred. On appeal, Mitchell argued that Progressive should have been equitably estopped from asserting the statute of limitations defense to his complaint because they had been on notice of his UM claim for more than three years prior to the properly filed complaint. Progressive responded that if Mitchell's argument was correct, a UM claimant plaintiff could indefinitely toll the statute of limitations by putting the carrier on notice of a potential claim, then waiting as long as he wished before filing a complaint. Mitchell, 965 So.2d at (1l16). It is the legislature's province and function to create statutes of limitation, the primary purpose of which is to compel the exercise of a right of action within a reasonable time. Mitchell, 965 So.2d at 683 (~ 13) (citations therein omitted). The basis for statutorily set limitations periods is the general experience that valid claims will be pursued promptly and not neglected. Mitchell, 965 So.2d at 683 (~ 13) (citations therein omitted). The 13

21 Mississippi legislature has determined that actions on contract, including claims for UM benefits, are subject to a three year limitations period. Mitchell, 965 So.2d at 683 (~ 13) (citations therein omitted); Miss. Code Ann. Section As noted by the Stamps Court, any interpretation of the law (concerning when the statute begins to run) that allows one party to the UM insurance contract control over the statute of limitations 8 would not be practical. Stamps, 2011 WL , at *5. As did Mitchell, Montgomery put Safeco on notice of her UM claim in January 2006, one month following the subject accident, but then failed to actually "commence"g an action against Safeco by filing a complaint until March 2009, more than three years after the accident, more than three years after receipt of the accident report, and more than three years after putting Safeco on notice of her UM claim. Regardless of which event triggers the statute, Montgomery's complaint against Safeco is time barred. Along these same lines, Montgomery also urges that there has been no taking of depositions or statements concerning Helveston's insurance coverage or lack thereof. (Appellant's brief, p. 7) Of course, Montgomery has not provided any reason why she has failed to take such depositions or statements in the more than five years since the subject accident. Just as a UM claimant plaintiff must not be allowed to put the carrier on notice then wait indefinitely before filing a complaint, a claimant must not be allowed to indefinitely delay proper investigation of her claim before filing a complaint. First, there is the duty of due diligence to acquire information about his claims. Jackson, 880 SO.2d at 342 (~ 19) 8 For instance, by allowing the claimant to wait an unlimited period of time before making a UM claim, either intentionally or inadvertently. Stamps, 2011 WL , at *5 (citation therein omitted). 9 Miss. Code Ann. Section requires that an action be "commenced" within three years after the cause of action accrued. An action is "commenced" by the filing of a complaint. M.RC.P.3(a). 14

22 (quoting Harris, 126 SO.2d at 873). Next, any interpretation of the applicable law concerning when the statute begins to run that would allow Montgomery and future UM claimant plaintiffs to control and manipulate the limitations period yields a result not merely impractical, but also allows individual trespass into the legislature's province and function. Stamps, 2011 WL , at *5; Mitchell, 965 SO.2d at 683 (~13). Prudent public policy would also prevent any interpretation that would allow UM claimant plaintiffs to unilaterally determine the limitations period and alter the time set by the legislature. See Bailey v. State Farm, 621 F.Supp. 1016, 1018 (S.D.Miss. 1985) (alteration of statute of limitations for filing claims under UM policies is matter for legislature). Finally, Montgomery disingenuously argues that she still has no proof positive that Helveston was an uninsured motorist. (Appellant's brief, p. 7) If she genuinely doubts Helveston's UM status, what does that say about her January 2006 UM demand to Safeco? Her March 2009 complaint against Safeco? If affirmative proof of an alleged tortfeasor's UM status is required before a cause of action for UM benefits accrues, then Montgomery's complaint against Safeco must certainly be dismissed because Montgomery has failed to establish an essential element of her claim. Of course, this is not the standard. The standard, instead, is that a cause accrues and the statute begins to run when the UM claimant plaintiff knows or reasonably should know that his own damages exceed the alleged tortfeasor's insurance coverage. Montgomery knew this in January 2006, more than three years before she filed her complaint against Safeco. As a matter of law, Montgomery's claim against Safeco for UM benefits is time barred. 15

23 VI. CONCLUSION Application of existing law to the undisputed record facts indisputably reveals that Montgomery's claim against Safeco is barred by the three year statute of limitations. For all of the above and foregoing reasons, the trial court properly granted Safeco's motion to dismiss and this Court must affirm. Respectfully submitted, this the '1 ~ay of July, OF COUNSEL: W. WRIGHT HILL, JR. - MSB ~ JAN F. GADOW - MSB:.s PAGE, KRUGER & HOLLAND, PA 10 Canebrake Blvd., Suite 200 [ ] Post Office Box 1163 Jackson, Mississippi Telephone: (601) Facsimile: (601) SAFECO INSURANCE COMPANY OF ILLLlNOIS, APPELLEE BY:~W.. Z~ JAN F. GADOW 16

24 CERTIFICATE OF SERVICE I, W. Wright Hill, Jr.lJan F. Gadow, do hereby certify that I have this day forwarded, via U.S. mail, postage prepaid, a true and correct copy of the foregoing to: Andrew C. Burrell, Esq. 750 East Pass Road Gulfport, MS Honorable Roger T. Clark Stone County Circuit Court Judge Post Office Box 1461 Gulfport, MS THIS, the ~ day of July, Gl:rZ~ W/ NRIGHT HILL, JR. JAN F. GADOW 17