IN THE SUPREME COURT OF MISSISSIPPI

NO. 2010-CA-00925-SCT

DIANA KINSEY, ON BEHALF OF THE

WRONGFUL DEATH BENEFICIARIES OF TED

WATKINS, DECEASED

v.

PANGBORN CORPORATION; ASH GROVE

CEMENT COMPANY; PRECISION PACKAGING,

INC.; CLARK SAND COMPANY, INC.; CLEMCO

INDUSTR IE S CO R PO RA TION; HANSO N

AGGREGATES, INC.; HUMBLE SAND & GRAVEL,

INC.; PARMELEE INDUSTRIES, INC.; SOUTHERN

SILICA OF LOUISIANA, INC.; MINE SAFETY

APPLIANCES COMPANY (MSA); EMPIRE

ABRASIVE EQUIPMENT CORPORATION; PEARL

SANDS, INC.; PEARL SPECIALTY SANDS, INC.;

SPECIALTY SAND COMPANY; BOB SCHMIDT,

INC.; SCHMIDT MANUFACTURING, INC.; LONE

STAR INDUSTRIES, INC.; AND AMERICAN

OPTICAL CORPORATION

DATE OF JUDGMENT: 05/17/2010

TRIAL JUDGE: HON. ROGER T. CLARK

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: JOHN TIMOTHY GIVENS

TIMOTHY W. PORTER

PATRICK C. MALOUF

ROBERT ALLEN SMITH, JR.
In the event that Kinsey did not survive Watkins, the “Last Will and Testament” 1

specified that all property would be “will[ed], give[n], devise[d] and bequeath[ed]” to

Watkins’s four adult children.

2

ATTORNEYS FOR APPELLEES: JENNIFER JONES SKIPPER

FRED KRUTZ, III

EDWIN S. GAULT, JR.

MATTHEW ROBERT DOWD

CHARLES R. WILBANKS, JR.

KATHARINE MCKEE SURKIN

RONALD G. PERESICH

W. MARK EDWARDS

RANDI PERESICH MUELLER

GEORGE MARTIN STREET, JR.

W. WRIGHT HILL, JR.

JEFFREY PIERCE FULTZ

HAL LORING ROACH, JR.

KIMBERLY PAIGE MANGUM

DAVID A. BARFIELD

WALTER T. JOHNSON

JOSEPH GEORGE BALADI

ROBERT B. IRELAND, III

WADE G. MANOR

JAMES SCOTT ROGERS

CLYDE LAVEL NICHOLS, III

NATURE OF THE CASE: CIVIL - WRONGFUL DEATH

DISPOSITION: AFFIRMED - 11/03/2011

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE WALLER, C.J., RANDOLPH AND CHANDLER, JJ.

RANDOLPH, JUSTICE, FOR THE COURT:

¶1. The “Last Will and Testament” of Ted Watkins, dated December 6, 2000, named his

ex-stepdaughter, Diana Kinsey, to serve as the executrix of his estate and “will[ed],

devis[ed], . . . and bequeath[ed] all of [his] property” to her. Following Watkins’s death in 1

July 2003, Kinsey was formally appointed executrix of Watkins’s estate in October 2003.
3

In May 2004, Watkins’s estate was closed and Kinsey was discharged as executrix. In April

2007, Kinsey filed a wrongful-death action against various silica-related entities in the

Circuit Court of Harrison County, Mississippi, First Judicial District (“circuit court”). Upon

the defendants’ motions, the circuit court ruled that this action was barred by applicable

statutes of limitations or, alternatively, that Kinsey lacked standing to file the wrongful-death

action. The circuit court dismissed all defendants with prejudice.

FACTS

¶2. On October 4, 2002, Watkins was diagnosed with silicosis. On December 26, 2002,

a mass-tort, personal-injury suit against various silica-related entities, styled Rudolph

Spencer, et al. v. Pulmosan Safety Equipment, et al., was filed in the Circuit Court of

Humphreys County, Mississippi. The plaintiffs in that suit asserted claims of negligence,

gross negligence, strict products liability, breach of warranties, and conspiracy against the

defendants; alleged “silica-related injuries[;]” and sought recovery for “past, present, and

future losses, not only actual, economic losses such as lost wages and/or wage-earning

capacity and expenses of medical care, but also compensatory losses, such as loss of health,

physical pain, emotional upset, mental anguish, disfigurement, disability, and loss of

enjoyment of life . . . .” Among the twenty-five listed plaintiffs was “Ted Walkins [sic], .

. . an adult resident citizen of Mississippi.” (Emphasis added.)
The “Certificate of Death” listed Watkins’s cause of death as respiratory failure, 2

“[d]ue to or as a consequence of” small cell carcinoma of the lungs which metastasized into

the brain and liver, itself “[d]ue to or as a consequence of” cigarette smoking.

A subsequently-filed “Silica MDL Plaintiff’s Sworn Fact Sheet” listed Ted Watkins 3

as a plaintiff in the Spencer case, and the signature section provided that Watkins was

deceased. Answers and Amended Answers filed in the present case by several defendants

provided that “defendant admits that [Watkins] was at one time a plaintiff” in Spencer.

See Miss. Code Ann. § 91-7-237 (Rev. 2004) (“[w]hen either of the parties to any 4

personal action shall die before final judgment, the executor or administrator of such

deceased party may prosecute or defend such action, and the court shall render judgment for

or against the executor or administrator.”).

4

¶3. Watkins died on July 28, 2003. On October 29, 2003, an “Amended Complaint” was 2

filed in Spencer in which “Ted Walkins [sic], . . . an adult resident of Mississippi” remained

among the listed plaintiffs. (Emphasis added.) No suggestion of death was made and no 3

wrongful-death claims were asserted. Thereafter, Spencer was removed to the United States

District Court for the Southern District of Texas, Corpus Christi Division, a silica multidistrict litigation court (“federal court”).

¶4. On October 30, 2003, the Chancery Court of Forrest County, Mississippi (“chancery

court”), entered an “Order Admitting Will to Probate and for Issuance of Letters

Testamentary.” The Order appointed Kinsey as the executrix of Watkins’s estate, pursuant

to Watkins’s “Last Will and Testament,” to perform the duties and obligations required by

that position. Kinsey, as the executrix of Watkins’s estate, never moved to be substituted as

a real party in interest in Spencer. On May 17, 2004, a “Judgment Approving First and 4

Final Account, Closing Estate, Discharging Executrix and For Other Relief” was entered by

the chancery court. (Emphasis added.) The Judgment ordered that Kinsey, as “the sole

devisee and legatee” of the estate, was “entitled to receive all property of whatever nature,
At the time of Watkins’s death, he had more than $35,000 in creditor claims. 5

5

whether presently in possession or to later accrue . . . .” This included “any asbestos-related

or other proceeds to be paid, currently or in the future, to or on behalf of” Watkins, which

were to be “free of any claim of creditors due to said proceeds’ exempt status . . . .”5

¶5. Subsequently, the federal court entered an Order remanding Spencer to the Circuit

Court of Humphreys County due to lack of subject-matter jurisdiction. On January 30, 2006,

the Circuit Court of Humphreys County entered an “Agreed Order of Dismissal Without

Prejudice” in Spencer, which included the following defendants: Clemco Industries

Corporation; Clark Sand Company, Inc.; Hanson Aggregates, Inc.; Humble Sand & Gravel,

Inc.; Pangborn Corporation; Parmalee Industries, Inc.; Precision Packaging, Inc.; and

Southern Silica of Louisiana, Inc. (collectively, “Forman Perry Defendants”). (Emphasis

added.) On April 27, 2006, the Circuit Court of Humphreys County entered an “Agreed

Order of Dismissal Without Prejudice” in Spencer as to all claims against “each and every”
This Court has summarized Smith as holding that: 6

all claims previously filed en masse for silicosis damages that were not filed

in the proper venue should be severed as misjoined pursuant to Janssen

Pharmaceutica v. Armond, 866 So. 2d 1092 (Miss. 2004), which requires

each claim joined in a single lawsuit to arise from a “distinct, litigable event.”

Smith, 926 So. 2d at 845 (citing Armond, 866 So. 2d at 1099). The Smith

Court stated that such a dismissal would be “as to a matter of form,” for

purposes of the saving statute, Mississippi Code Section 15-1-69. Smith, 926

So. 2d at 845.

Clark Sand Co., Inc. v. Kelly, 60 So. 3d 149, 153 (Miss. 2011) (emphasis added). Section

15-1-69 “allows a plaintiff whose claim is dismissed for a ‘matter of form’ one year to refile

his or her claim in an appropriate venue of his or her choice.” Id. at 153 n.3 (citing Miss.

Code Ann. § 15-1-69 (Rev. 2003)) (emphasis added).

The defendants included the Forman Perry Defendants, among whom this Court 7

includes Ash Grove Cement Company (“Ash Grove”). While Ash Grove was not a listed

defendant in Spencer, Kinsey’s Complaint listed Ash Grove as “d/b/a Precision Packaging,

Inc.,” who is a Forman Perry Defendant.

The other defendants included Lone Star Industries, Inc.; Specialty Sand Company;

American Optical Corporation; Empire Abrasive Equipment Corporation (“Empire

Abrasive”); Mine Safety Appliances Company (“MSA”); Pearl Sands, Inc.; Pearl Specialty

Sands, Inc.; Schmidt Manufacturing, Inc.; and Bob Schmidt, Inc. (collectively, “Other

Defendants”).

Nowhere in Kinsey’s Complaint did she allege her relationship to Watkins. 8

6

remaining defendant, pursuant to Canadian National v. Smith, 926 So. 2d 839 (Miss. 2006).6

(Emphasis added.)

¶6. On April 27, 2007, Kinsey first filed a wrongful-death action in the circuit court. The

Complaint was styled Diana Kinsey, on behalf of the Wrongful Death Beneficiaries of Ted

Watkins, Deceased v. Pangborn Corporation, et al. The Complaint alleged “COMES 7

NOW, [Kinsey], on behalf of the wrongful death beneficiaries of Ted Watkins, deceased .

. . .” The Complaint alleged that the April 27, 2006, Order of the Circuit Court of 8

Humphreys County was entered pursuant to Smith, and Kinsey argued that she was thereby
The Forman Perry Defendants sent a similar letter to counsel for Kinsey. 9

Following Kinsey’s failure to respond to their letter, the Forman Perry Defendants 10

filed a “Motion to Compel.”

7

granted “one (1) year . . . to re-file [Watkins’s] cause of action in a proper venue according

to new law in Mississippi[,]” and “[t]his case is being filed within th[at] one (1) year time

frame . . . .”

¶7. Between August 2007 and November 2007, various defendants filed their Answers

and Defenses. These pleadings contended, inter alia, that the claims asserted by Kinsey were

barred by applicable statutes of limitations and that Kinsey lacked standing to commence a

wrongful-death action.

¶8. On December 13, 2007, the circuit court entered an “Agreed Initial Discovery Order”

which provided, in pertinent part, that Kinsey would have sixty days to respond to the

defendants’ “Initial Master Set of Interrogatories and Requests for Production of Documents”

(“Master Set”). On December 18, 2007, the defendants propounded the Master Set to

Kinsey, with responses due February 18, 2008. After receiving no responses to the Master

Set, defendant MSA sent a letter to counsel for Kinsey which provided that those responses

were “extremely overdue” and requested that Kinsey “respond to this discovery immediately

to avoid involvement by the [c]ourt.” Upon Kinsey’s failure to respond to that letter, MSA 9

filed a “Motion to Compel.” Following hearing, the circuit court entered an “Order 10

Compelling Discovery Responses.” Kinsey’s subsequent responses pertinently revealed that

she was Watkins’s step-daughter and that Kinsey failed to list any wrongful-death

beneficiaries, including Watkins’s children identified in the “Last Will and Testament.”
The defendants also contended that Kinsey lacked standing “to bring a wrongful 11

death action for Watkins” under Mississippi Code Section 11-7-13 because she was only his

“ex-stepdaughter,” and that since “there was no estate open at the time of the commencement

of this suit, Kinsey would have had no authority to bring an action on behalf of the estate of

Watkins.” Kinsey responded that she had standing “to bring a survival action and wrongful

death suit” because she was an “interested party” as “an heir under the will” whom “the

[c]hancery [c]ourt determined . . . to be the sole devisee and legatee” of Watkins’s estate.

8

¶9. Thereafter, the Forman Perry Defendants and MSA filed separate “Motions for

Summary Judgment,” joined by Empire Abrasive, asserting that applicable statutes of

limitations barred Kinsey’s suit. According to the Forman Perry Defendants, “[a]ny

wrongful death claims would have expired three years from [July 28, 2003] or July 28,

2006.” As the present action was commenced on April 27, 2007, the defendants contended

that Kinsey had “missed the statute of limitations.” The defendants further asserted that “no

statutory ‘tolling’” existed because of the “Agreed Order of Dismissal Without Prejudice”

in Spencer. (Emphasis added.) Finally, the defendants maintained that Section 15-1-69 (the

“saving statute”) was inapplicable “[b]ecause Kinsey was not a party to” Spencer and this

is “a new action for a new cause by a new plaintiff.” In response, Kinsey asserted that her 11

claims were protected under Section 15-1-69 or, alternatively, that the defendants’ delay in

asserting this affirmative defense constituted a waiver.

¶10. Following a hearing, the circuit court entered summary judgment, dismissing all

defendants with prejudice. The circuit court determined that “[t]here is no dispute that this

is a wrongful death action.” (Emphasis added.) The circuit court concluded, inter alia, that

the three-year statute of limitations barred this wrongful-death action because it “accrued on

July 28, 2003,” and Section 15-1-69 was inapplicable since the action “is not a re-filing of
“One who brings a claim under the wrongful-death statute to recover only damages 12

under circumstances which, ‘if death had not ensued, would have entitled the party injured

or damaged thereby to maintain an action and recover damages in respect thereof,’ is

actually bringing a survival claim . . . .” Caves v. Yarbrough, 991 So. 2d 142, 149 (Miss.

2008) (quoting Miss. Code Ann. § 11-7-13 (Rev. 2004)) (emphasis added). “The survival

action provided in the wrongful death statute is an extension of Mississippi’s survival statute,

which allows personal actions of a decedent to be pursued after his or her death.” Caves, 991

So. 2d at 149 n.9 (citing Miss. Code Ann. § 91-7-233 (Rev. 2004)).

9

a previously avoided or defeated matter . . . , nor was it commenced by the prior plaintiff

(Watkins) or his executor for the same cause.” (Emphasis added.)

ISSUE

¶11. If the statute of limitations was not waived, and if the “saving statute” is inapplicable,

then the statute-of-limitations issue is case-dispositive. As such, this Court addresses only

whether this wrongful-death action was barred by the statute of limitations.

ANALYSIS

¶12. Preliminarily, we address the nature of this action, a wrongful-death case. This Court

has stated that Mississippi Code Section 11-7-13, Mississippi’s wrongful-death statute,

“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 12

which proximately caused a death.” Caves, 991 So. 2d at 150 (emphasis added). See also

Clark Sand, 60 So. 3d at 161 (citing Caves, 991 So. 2d at 148-49) (“[a]n action for wrongful

death includes the decedent’s ‘survival-type’ claims, such as claims for his or her personal

injury, property damage, and medical and funeral expenses, and the wrongful-death

claimants’ so-called ‘wrongful-death’ claims, such as loss of consortium, society, and

companionship.”) (emphasis added); Long v. McKinney, 897 So. 2d 160, 169 (Miss. 2004)
10

(“in wrongful death litigation, there are several kinds of damages which may be pursued, and

these damages are not due to the same claimants. For instance, the estate is entitled to

recover funeral costs and final medical expenses. The beneficiaries are entitled to recover

for their respective claims of loss of society and companionship. The wrongful death

beneficiaries are entitled to recover the present net cash value of the decedent’s continued

existence.”). Section 11-7-13 “requires that all such claims be brought in one suit . . . .”

Caves, 991 So. 2d at 149 (citing Miss. Code Ann. § 11-7-13 (Rev. 2004)) (emphasis added).

See also Burley v. Douglas, 26 So. 3d 1013, 1019 n.6 (Miss. 2009) (quoting In re Estate of

England, 846 So. 2d 1060, 1068 (Miss. Ct. App. 2003)) (“[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.”). A review of Kinsey’s April 2007 Complaint reflects that only

“survival-type” claims are presented. Clark Sand, 60 So. 3d at 161 (citing Caves, 991 So.

2d at 148-49). With that established, this Court considers whether the statute of limitations

barred Kinsey’s claims.

I. Whether this action was barred by the statute of limitations.

(A) Waiver

¶13. The waiver, vel non, of an affirmative defense is subject to an abuse-of-discretion

standard of review. See Jones v. Fluor Daniel Servs. Corp., 32 So. 3d 417, 421 (Miss.

2010).

¶14. In the Complaint, Kinsey failed to state her relationship to Watkins, to reveal that she

had been the executrix of Watkins’s estate, or to name Watkins’s estate as a plaintiff. In
11

Answers and Defenses, the defendants raised, inter alia, the affirmative defense of the statute

of limitations. Following the “Agreed Initial Discovery Order,” Kinsey failed to respond to

the Master Set when due, failed to respond to subsequent letter requests of the defendants,

failed to respond to the defendants’ “Motions to Compel,” and responded only after the

circuit court entered an “Order Compelling Discovery Responses.” Within two months after

receipt of the compelled responses, each defendant either filed or joined in a motion for

summary judgment.

¶15. This Court has stated that a “long delay” is not enough, “standing alone,” to constitute

waiver of an affirmative defense. MS Credit Center, Inc. v. Horton, 926 So. 2d 167, 180

(Miss. 2006)). Ordinarily, there must be “a substantial and unreasonable delay in pursuing

the right, coupled with active participation in the litigation process,” before waiver will be

found. Id. The Complaint was insufficient to decipher Kinsey’s status in relation to

Watkins. The only significant delay was caused by Kinsey failing to provide timely

responses to discovery. When Kinsey finally responded, following the circuit court’s “Order

Compelling Discovery Responses,” the defendants pursued this affirmative defense

forthwith. At that time, this mass-tort case was still in its early stages. No trial date had been

set and no witnesses had been deposed during the period of delay. Under the facts presented,

this Court concludes that the defendants did not waive their statute-of-limitations defense.

(B) Statute of limitations and the “saving statute”

¶16. “‘[T]he application of a statute of limitations is a question of law,’ which we review

de novo.” Caves, 991 So. 2d at 146 (quoting Sarris v. Smith, 782 So. 2d 721, 723 (Miss.

2001)).
12

¶17. The applicable statute of limitations provides that “[a]ll 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).

But in a wrongful-death suit, where multiple claims must be brought in one suit (see ¶ 12

supra), if “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.” Caves, 991 So. 2d at 150. For

instance, Watkins’s “survival-type” claims actually accrued on the date of discovery of the

injury. See Lincoln Elec. Co. v. McLemore, 54 So. 3d 833, 836 (Miss. 2010) (quoting Angle

v. Koppers, Inc., 42 So. 3d 1, 5 (Miss. 2010)) (“the plain language of Section 15-1-49

supports an interpretation ‘that the cause of action accrued upon discovery of the injury, not

discovery of the injury and its cause.’”) (emphasis in original).

¶18. The “survival-type” claims accrued upon Watkins’s diagnosis with silicosis on

October 4, 2002. Any “wrongful-death” claims accrued, at the latest, on the date of

Watkins’s death on July 28, 2003. See Clark Sand, 60 So. 3d at 161; Caves, 991 So. 2d at

148. Therefore, in the absence of tolling, the statute of limitations for “survival-type” claims

ran on October 4, 2005 (and for “wrongful-death” claims, on July 28, 2006). Spencer was

filed within the statute of limitations on December 26, 2002. However, no party was

substituted for the deceased Watkins. In Spencer, an “Agreed Order of Dismissal Without

Prejudice” was entered as to the Forman Perry Defendants on January 30, 2006, and as to

“each and every Defendant” on April 27, 2006. (Emphasis added.) “[T]he filing of a

complaint does not toll the statute of limitations when the plaintiff voluntarily dismisses the

suit.” McLemore, 54 So. 3d at 839 (quoting Koestler v. Miss. Baptist Health Sys., Inc., 45
13

So. 3d 280, 283 (Miss. 2010)). Based thereon, when Spencer was dismissed without

prejudice, “its pendency did not serve to toll the statute of limitations on . . . a wrongful-death

action for [Watkins’s] death.” Clark Sand, 60 So. 3d at 162. As no wrongful-death action

was filed until April 27, 2007, all “survival-type” claims, as against all defendants, were

time-barred, unless such “survival-type” claims were “for the same cause” as Watkins’s

Spencer claim. Id. (quoting Miss. Code Ann. § 15-1-69 (Rev. 2003)). If that was the case,

then the dismissal of Spencer “as to a matter of form” implicated Section 15-1-69, the

“saving statute.” See Clark Sand, 60 So. 3d at 162 (quoting Miss. Code Ann. § 15-1-69

(Rev. 2003)). Section 15-1-69 provides a living plaintiff, “or ‘his executor or administrator’

in the event of his death, one year to refile his claim as a ‘new action for the same cause’ in

an appropriate venue.” Clark Sand, 60 So. 3d at 162 (quoting Miss. Code Ann. § 15-1-69).

¶19. In Clark Sand, this Court held that:

[Kelley] was not substituted as the party plaintiff in [the decedent’s mass-tort,

personal-injury] claim [filed in federal court] after [the decedent] died but

before [the federal suit] was dismissed. This action must be a new and

independent wrongful-death action, brought by Kelley without the saving

statute and separate and distinct from [the decedent’s] personal-injury claim

in [federal court].

. . .

Kelley filed this suit far more than three years after [the decedent’s] diagnosis,

so the “survival-type” claims included in Kelley’s action are time-barred.

Clark Sand, 60 So. 3d at 162 (emphasis added). When the present action was filed,

Watkins’s estate had been closed, and Kinsey had been discharged as executrix thereof, for

nearly three years. Kinsey’s Complaint was not filed by Kinsey as the executrix of

Watkins’s estate. See Miss. Code Ann. § 15-1-69 (action under the “saving statute” is to be
14

filed by the decedent’s “executor or administrator . . . .”). The Complaint was styled Diana

Kinsey, on behalf of the Wrongful Death Beneficiaries of Ted Watkins, Deceased. It is

undisputed that Kinsey was never “substituted as the party plaintiff” in Spencer after

Watkins died, but before Spencer was dismissed. Clark Sand, 60 So. 3d at 162. Under such

circumstances, this Court concludes that the present suit was a “new and independent

wrongful-death action” to which Section 15-1-69 does not apply. Id. Therefore, this

wrongful-death suit is barred by the statute-of-limitations.

CONCLUSION

¶20. As Kinsey’s claims were barred by the statute of limitations, this Court affirms the

“Orders Granting Summary Judgment” entered by the Circuit Court of Harrison County,

Mississippi, First Judicial District, dismissing all defendants with prejudice.

¶21. AFFIRMED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, KITCHENS,

CHANDLER, PIERCE AND KING, JJ., CONCUR.