                           IN THE SUPREME COURT OF MISSISSIPPI

                                       NO. 2001-CA-00672-SCT

LINDA LEBLANC
v.
ALLSTATE INSURANCE COMPANY



DATE OF JUDGMENT:                                   4/13/2001
TRIAL JUDGE:                                        HON. JOHN M. MONTGOMERY
COURT FROM WHICH APPEALED:                          LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                            FRANK TOMENY, III

                                                    PHILIP THARP DEAN
ATTORNEYS FOR APPELLEE:                             WILLIAM C. GRIFFIN

                                                    J. WRILEY McKEOWN
NATURE OF THE CASE:                                 CIVIL - PERSONAL INJURY
DISPOSITION:                                        AFFIRMED AS MODIFIED - 03/07/2002
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                     3/28/2002

     BEFORE McRAE, P.J., EASLEY AND GRAVES, JJ.

     EASLEY, JUSTICE, FOR THE COURT:

¶1. This is an appeal taken from Lowndes County Circuit Court's final judgment of April 13, 2001, which
dismissed this civil action with prejudice because Linda LeBlanc ("LeBlanc") failed to served a complaint
and summons on Allstate Insurance Company ("Allstate") within 120 days under Rule 4 (h) of the
Mississippi Rules of Civil Procedure. The trial court further found that LeBlanc failed to demonstrate "good
cause" for failure to serve in order to justify any extension of time to effect service.

¶2. LeBlanc filed her complaint against the Estate of Joseph M. Connor ("Connor"), George M. Ouzts
("Ouzts") and Allstate on September 29, 1999. Process was not issued as to Allstate until August 22,
2000. Allstate was served with process on August 23, 2000.

¶3. On February 12, 2001, the trial court conducted a hearing on Allstate's motion to dismiss for lack of
process within 120 days. LeBlanc's attorneys alleged that she received severe injuries from the automobile
accident on September 29, 1996, which affected her memory and thought process, thereby limiting her
ability to cooperate with her attorneys in handling her case. She alleged that her ex-husband (the presumed
policy holder) and his insurance agent would not cooperate with LeBlanc's attorneys in providing
information as to possible uninsured motorists coverage with Allstate.

¶4. The trial court, citing Bang v. Pittman, 749 So.2d 47 (Miss. 1999) and Rains v. Gardner, 731
So.2d 1192, 1197 (Miss. 1999), granted the motion to dismiss Allstate with prejudice.

                                                   FACTS

¶5. On September 29, 1999, LeBlanc filed a complaint in the Lowndes County Circuit Court naming
Connor, Ouzts and Allstate as party defendants to the lawsuit. On September 29, 1996, LeBlanc was a
passenger in a motor vehicle operated by Connor. The vehicle was involved in a collision with a motor
vehicle operated by Ouzts. LeBlanc's complaint alleged the following facts:

      1. On September 29, 1996, LeBlanc was a passenger in a motor vehicle operated by Connor.(1) At
      said time, said vehicle was involved in a collision with a motor vehicle operated by Ouzts;

      2. As a result of said collision, LeBlanc incurred and will continue to incur medical expenses and lost
      wages, endured and will continue to endure pain and suffering and has sustained a permanent
      disability;

      3. Said Connor and Ouzts maintained a liability insurance policy the limits of which are insufficient to
      pay the damages which LeBlanc has sustained as a result of said collision. Alternatively, said Connor
      and Ouzts maintained no liability insurance policy through which the damages LeBlanc will be paid;

      4. LeBlanc maintained a policy of insurance which provided uninsured motorist coverage with Allstate
      under the terms of which the damages sustained by LeBlanc should be paid;

      5. LeBlanc sought a judgment from Connor and Ouzts in the sum of $1,5000,000.00 and additionally,
      LeBlanc sought a judgment from Allstate for the amount of policy limits.

¶6. According to the record, LeBlanc never asked the circuit clerk to issue a summons for Allstate before
September 22, 2000.(2) Allstate was served on September 23, 2000, almost eleven months after the
complaint was filed on September 29, 1999.

¶7. On appeal, LeBlanc raises the following issue:

      I. Whether the trial court erred in dismissing the complaint against Allstate pursuant to Rule
      4(h) of Mississippi Rules of Civil Procedure.

                                                 ANALYSIS

¶8. LeBlanc alleged on appeal that "good cause" existed for the trial court to have allowed service of
process on August 22, 2000, more than 120 days since filing the complaint on September 29, 1999, for
damages suffered by LeBlanc on September 29, 1999. Our analysis begins with a review of the applicable
provision of the Mississippi Rules of Civil Procedure Rule 4(h) which states:

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

¶9. The determination of whether "good cause" exists is a "discretionary ruling on the part of the trial court
and entitled to deferential review of whether the trial court abused its discretion and whether there was
substantial evidence supporting the determination." Rains v. Gardner, 731 So.2d 1192, 1196 (Miss.
1999).

¶10. LeBlanc's former attorney testified at the hearing held on Allstate's motion to dismiss as a witness for
LeBlanc. LeBlanc's attorney alleged that she was unable to assist her attorneys due to her severe injuries
from the automobile accident, including injuries to her brain which caused impairment of her memory and
thought process, and prevented them from getting the complaint served within the 120 days as required
under Rule 4(h). LeBlanc's attorney further alleged that "the tenuous relationship between [LeBlanc] and her
ex-husband (the presume policy holder)" contributed to LeBlanc's attorneys being unable to obtain
information whether Allstate was a proper defendant to be served with process. LeBlanc's ex-husband
would not authorize the insurance agent to release the policy information.

¶11. LeBlanc's attorney did not know if an insurance policy existed with Allstate.(3) LeBlanc's attorneys
feared that the issuance of process on Allstate would subject them to a claim for a filing of a frivolous
lawsuit against Allstate. Some eleven months after filing suit, LeBlanc's attorneys received a copy of a cover
page indicating arguable coverage with Allstate on the ex-husband's two vehicles, including uninsured
motorist coverage at the time of the accident.

¶12. This Court in Watters v. Stripling, 675 So.2d 1242, 1243 (Miss. 1996) (quoting Peters v. United
States., 9 F.3d 344, 345 (5th Cir. 1993)) stated:

      If a plaintiff fails to served the defendant properly within 120 days of filing the complaint, upon motion
      of the defendant or sua sponte by the court with notice to the plaintiff, the action shall be dismissed
      without prejudice unless the plaintiff shows good cause for failure to complete service. To establish
      "good cause" the plaintiff must demonstrate "at least as much as would be required to show excusable
      neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does
      not suffice." See Systems Signs Supplies v. United States Dep't of Justice, 903 F.2d 1011, 1013
      (5th Cir. 1990).

¶13. In Bang v. Pittman, 749 So.2d 47, 49 (Miss. 1999), Bang failed to serve Pittman with the summons
and complaint within 120 days of filing the complaint on October 25, 1996. Id. On February 21, 1997, a
motion for additional time to serve process was filed alleging that Pittman was evading service of process.
Pittman on March 4, 1997, filed a motion to dismiss and objection to the motion for additional time to serve
process. Id. The trial court dismissed the action without prejudice on June 12, 1997, for failure to serve
process within 120 days and for failure to show good cause why service had not been perfected. Id. Bang
sought to have the dismissal set aside which was denied October 30, 1997. Id.

¶14. This Court stated in Bang that:

      Simply put, Bang knew where to find Pittman and failed to serve him during the 120 day period. A
      plaintiff must be diligent in process within 120 days. Resolution Trust Corp. v. Starkey, 41 F.3d
      1018, 1022 (5th Cir. 1995). There is not showing in the record provided to this Court that Bang
      attempted to serve Pittman before February 21, 1997, 117 days after the filing of the complaint. The
      trial court did not abuse its discretion in denying Bang's motion for additional time.

Id. at 52.

¶15. In the case sub judice, the trial court considered the reasons advanced by LeBlanc for failure to
accomplish service of process within 120 days prescribed under M.R.C.P. 4(h), including LeBlanc's
medical condition, as well as, the difficulty in obtaining information regarding Allstate's coverage. The trial
court did not find that good cause existed to excuse LeBlanc's failure to comply with M.R.C.P. 4(h). On
March 30, 2001, the trial court specifically set forth its reasoning in its Order Granting Defendant's Motion
to Dismiss the complaint as to Allstate with prejudice before handing down its final judgment on April 13,
2001. The trial court stated in pertinent part as follows:

      The Court: During the hearing the court conducted upon this matter, former counsel for the plaintiff
      [LeBlanc] testified on the stand that he did not have process served upon the defendant Allstate
      because at that time he was not completely sure that the plaintiff did indeed have a policy with
      Allstate, and he made an "ethical decision" to not pursue a frivolous lawsuit. Plaintiff's former counsel
      further alleged that the plaintiff was suffering some mental confusion as a result of the automobile
      accident and could not assist him overly much with his inquiries, and attempts to contact the plaintiff's
      ex-husband were met with some resistance. When the plaintiff later retained new counsel, inquiries to
      her ex-husband produced the Allstate policy information, and process was subsequently issued.

      M.R.C.P. 4(h) provides as follows:

      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.

      Rains v. Gardner, 731 So.2d 1192, 1197 (Miss. 1999), states that a determination of what
      constitutes good cause "would be a discretionary ruling on the part of the trial court." Further, Bang
      v. Pittman, 749 So.2d 47, 52 (Miss. 1999) states, "A plaintiff must be diligent in serving process if
      he is to show good cause in failing to serve process within 120 days." In reviewing the applicable law,
      the briefs filed by counsel, and the testimony presented at the motion hearing, the court finds that the
      plaintiff under the standard presented by the Supreme Court of Mississippi in the cases cited supra
      has failed to show good cause why process was not served. This court on a fairly routine basis grants
      motions for extensions of time in which to serve process and feels that it would have granted such a
      motion in this cause under the existent circumstances. In addition, the court finds that the plaintiff's
      failure to even have process issued shows a lack of diligence beyond excusable neglect. And
      furthermore, the court, while applauding counsel's desire not to pursue a frivolous lawsuit, finds that a
      better cause of action would have been to serve Allstate with process within the time allowed, then
      dismiss Allstate as a defendant party at a later date if the policy information did not arise during
      discovery.

      Therefore, the court finds that the plaintiff has failed to show good cause for not serving process upon
      the defendant Allstate and hereby grants Allstate's Motion to Dismiss with Prejudice since the statute
      of limitations has run in this matter.

¶16. The trial court did not abuse its discretion in dismissing the complaint as to Allstate. This Court has not
been supplied substantial evidence to support the determination that the trial court abused its discretion. As
stated by the trial court, Allstate could have been served the complaint in compliance with M.R.C.P. 4(h)
and then released as a defendant when further information became available. LeBlanc never demonstrated
that all discovery methods available under the Mississippi Rules of Civil Procedure had been exhausted.(4)
¶17. However, the trial court did err in dismissing the complaint with prejudice rather than without
prejudice. See Watters, 675 So.2d at 1243. M.R.C.P. 4(h) requires that if service of the summons and
complaint is not made upon the defendant within 120 days, "the action shall be dismissed as to that
defendant without prejudice." Therefore, we modify the trial court's decision to be without prejudice.

¶18. Furthermore, LeBlanc never sought an extension of time from the trial court to perfect service. This
Court in Crumpton v. Hegwood, 740 So.2d 292, 295 (Miss. 1999), upheld on appeal the trial court's
decision to extend the 120 days after filing of the complaint for service for 60 additional days citing
excusable neglect even though the 120 days have expired prior to the request for the 60 day extension.
Therefore, LeBlanc's argument does not suffice for excusable neglect for failure to serve Allstate within the
time prescribed in M.R.C.P. 4(h).

                                              CONCLUSION

¶19. For these reasons the Lowndes County Circuit Court's judgment granting Allstate's motion to dismiss
is affirmed, but modified to be without prejudice.

¶20. AFFIRMED AS MODIFIED.

      PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, DIAZ, CARLSON AND
      GRAVES, JJ., CONCUR.

1. Connor died as a result of the automobile collision.

2. The record does not reflect that summons were ever issued for Connor or Ouzts.

3. LeBlanc did not file any affidavit or written response to Allstate's motion to dismiss. Furthermore, no
correspondence or medical records were made a part of the hearing to demonstrate attempts to contact
LeBlanc, LeBlanc's ex-husband or Allstate for information or LeBlanc's impairment. The only evidence
presented on behalf of LeBlanc was the testimony of her former attorney.

4. The record does not reflect that any subpoenas had been issued by LeBlanc nor that anyone was
deposed by LeBlanc.
