                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 98-CA-00331-SCT
GLENNIDRA LATTIMORE AND MICHAEL NAYLOR
v.
CITY OF LAUREL, MISSISSIPPI AND JEFFERY CHANDLER

DATE OF JUDGMENT:                                  02/02/1998
TRIAL JUDGE:                                       HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:                         JONES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                           EUGENE C. TULLOS
ATTORNEYS FOR APPELLEES:                           HAROLD WAITS MELVIN
                                                   PATRICIA FRANCINE MELVIN
NATURE OF THE CASE:                                CIVIL - OTHER
DISPOSITION:                                       REVERSED AND REMANDED- 4/22/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                    5/13/99




      EN BANC.


      SMITH, JUSTICE, FOR THE COURT:


                                     STATEMENT OF THE CASE

¶1. On February 3, 1995, Appellants Glennidra Lattimore and Michael Naylor (hereinafter "Lattimore")
were involved in an automobile accident with a fire truck owned by the Appellee the City of Laurel and
operated by Appellee Fireman Jeffery Chandler (hereinafter "Laurel"). The accident occurred at the
intersection of Speck Wilson Drive and Carroll Gartin Drive in Laurel, Mississippi. On February 2, 1996,
one day prior to the running of the one year statute of limitations, Eugene C. Tullos, attorney for Lattimore,
filed suit on behalf of Lattimore with service of process by certified mail, return receipt requested.

¶2. On April 1, 1996, Laurel filed their motion for summary judgment alleging no genuine issue of material
fact. Specifically, Laurel alleged that Lattimore failed to comply with Section 11-46-11(1) & (2) of the
Mississippi Tort Claims Act (hereinafter the "MTCA") by not providing written pre-suit notice of claim to
the city. In the response to the motion for summary judgment, Tullos testified by affidavit that on February
6, 1995, he mailed a copy of his letter of representation to the City of Laurel and Jeffrey Chandler advising
them of his representation in this matter.

¶3. After a hearing on the motion for summary judgment, the County Court Judge granted summary
judgment for Laurel, because Section 11-46-11 applied and should have been strictly followed. Lattimore
timely appealed to the Circuit Court of Jones County, Mississippi. After review of the record and the
parties' briefs, the circuit court affirmed the county court's judgment.

¶4. Aggrieved, Lattimore and Naylor now appeal to this Court and raise the following contention of error:

I. THE COURT IMPROPERLY GRANTED LAUREL'S MOTION FOR SUMMARY
JUDGMENT BECAUSE LATTIMORE GAVE SUFFICIENT NOTICE TO LAUREL TO
SATISFY THE REQUIREMENTS FOUND IN § 11-46-11 (1) AND (2) OF THE MISSISSIPPI
CODE OF 1972 (ANNOTATED).

                                       STANDARD OF REVIEW

¶5. The summary judgment motion is the only pretrial motion which allows the Court to "go behind the
pleadings" and consider evidence such as admissions, answers to interrogatories, depositions, and affidavits.
If this examination indicates there is no genuine issue of material fact, the moving party is entitled to a
judgment as a matter of law. Newell v. Hinton, 556 So.2d 1037, 1041-42 (Miss.1990). In reaching this
determination, the Court examines affidavits and other evidence to determine whether or not a triable issue
exists. Our purpose is not to resolve such an issue. While the motion for summary judgment is designed to
expose "sham" claims and defenses, it should not be used to circumvent a trial on the merits where there are
genuine issues of material fact. M.R.C.P. 56 cmt. We employ a de novo standard of review of the lower
court's grant of a summary judgment motion. Saucier ex rel. Saucier v. Biloxi Reg'l Med. Ctr., 708
So.2d 1351, 1354 (Miss.1998)(citing Townsend v. Estate of Gilbert, 616 So.2d 333, 335 (Miss.1993)
). "The evidence must be viewed in the light most favorable to the ... non-moving part [y] and [that party is]
to be given the benefit of every reasonable doubt." Id. (quoting Townsend, 616 So.2d at 335).

                                         DISCUSSION OF LAW

I. WHETHER THE COURT IMPROPERLY GRANTED LAUREL'S MOTION FOR
SUMMARY JUDGMENT BECAUSE LATTIMORE GAVE SUFFICIENT NOTICE TO
LAUREL TO SATISFY THE REQUIREMENTS FOUND IN § 11-46-11 (1) AND (2) OF THE
MISSISSIPPI CODE OF 1972 (ANNOTATED).

¶6. Section 11-46-11(1) and (2) state, as follows:

     (1) After all procedures within a governmental entity have been exhausted, any person having a claim
     for injury arising under the provisions of this chapter against a governmental entity or its employee
     shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days
     prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive
     officer of the governmental entity, and, if the governmental entity is participating in a plan administered
     by the board pursuant to Section 11-46-7(3), such chief executive officer shall notify the board of any
     claims filed within five (5) days after the receipt thereof.

     (2) The notice of claim required by subsection (1) of this section shall be in writing, delivered
     in person or by registered or certified United States mail. Every notice of claim 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 (1) & (2) (Supp. 1998) (emphasis added). It is uncontested that Lattimore
failed to strictly follow the statute's guidelines.

¶7. Lattimore however contests the "arbitrary and strict notice of claim requirement" and the "lack of a
constructive or actual notice provision" in Section 11-46-11 (1) & (2). Lattimore further admits that this
Court has already specifically addressed the notice of claim requirements of Section 11-46-11, but request
this Court to reconsider its strict interpretation in City of Jackson v. Lumpkin, 697 So.2d 1179 (Miss.
1997), and apply a substantial compliance standard instead.

¶8. Since the submission of the parties' briefs, this Court announced a substantial compliance standard on a
case-by-case factual analysis. Reaves v. Randall, No. 97-CA-00982-SCT, 1999 WL ------ (Miss.
March 25, 1999). In Reaves, this Court held, "In order to carry out the legislative purpose of providing
relief to injured citizens, we hold that substantial compliance with the notice provisions of the Act is
sufficient." Id. at ¶11. Therefore, in Reaves, this Court carved out an exception to the strict interpretation of
the Act announced in Lumpkin.

¶9. Furthermore, in Carr v. Town of Shubuta, No. 96-CT-01266-SCT,1999 WL 62772 (Miss. Feb.
11, 1999), this Court announced that the strict compliance standard found in Lumpkin as well as its
progeny--Carpenter v. Dawson, 701 So.2d 806 (Miss. 1997) and Holmes v. Defer, 722 So.2d 624
(Miss. 1998)-was overruled. Carr at *2.

¶10. The question would then become whether Lattimore substantially complied with the notice of claim
requirements in accord with this Court's recent announcements in Reaves and Carr. Under substantial
compliance, a genuine issue of material fact is in dispute which justifies a reversal and a remand. That issue
is whether Laurel actually received the letter Lattimore claims was mailed to the city. If so, Lattimore has
possibly substantially complied with the MTCA.

¶11. The record contains two conflicting affidavits on this issue. First, in the response to the motion for
summary judgment, Lattimore's counsel testified by affidavit that on February 6, 1995, he mailed a copy of
his letter of representation by regular U.S. mail, postage prepaid, to the City of Laurel and Jeffrey Chandler
advising them of his representation in this matter. Second, the Safety Director of Laurel, Alex Pope, testified
by affidavit that he handles all such claims and that "[t]he City of Laurel did not receive any written notice
from the Plaintiff, Lattimore , in this matter prior to filing suit as required under Section 11-46-11 (1) (2)."

¶12. Section 11-46-11(2) states, in pertinent part, that "[t]he notice of claim required by subsection (1) of
this section shall be in writing, delivered in person or by registered or certified United States mail." Miss.
Code Ann. § 11-46-11(2) (Supp. 1998). We assume Lattimore did not mail it by registered or certified
mail because then someone would have the letter or a receipt as a signature is required. Moreover,
Lattimore only claims it was mailed "postage prepaid, U.S. mail, addressed to the City of Laurel. . . ." The
county court should determine whether Laurel actually received the letter as this is in dispute.

¶13. We note that no affidavit from the mayor or any other officials were received from Laurel. In Reaves,
we stated as follows:
      [T]he Act leaves the term "chief executive officer of the governmental entity" undefined. This language
      has proved overly broad and likely has created much hardship. In order to give reasonable meaning
      to the statute, we hold today that this term may be read to include any of the following: president of
      the board, chairman of the board, any board member, or such other person employed in an
      executive capacity by a board or commission who can be reasonably expected to notify the
      governmental entity of its potential liability.

Reaves, 1999 WL ----- at ¶9; Cf. Alexander v. Mississippi Gaming Comm'n., No. 98-CA-00295-
SCT, 1999 WL 191856, at *3 (Miss. Apr. 8, 1999)(delivery of notice of claim to Chairman of the Gaming
Commission constituted substantial compliance). The affidavit from the Safety Director has some ambiguity.
It may be construed to say that no letter was received or that the letter which was received did not comply
with the act. Additionally, it is not an affidavit from the chief executive officer of the city denying receipt. In
these circumstances we deem it best that the factual issue whether the letter which is alleged to have been
sent was in fact received by the City of Laurel and, if so, to whom was it directed.

¶14. We also note that the Legislature has very recently amended Section 11-46-11.(1) The amendments
add legislative intent to this analysis. Under the new Section 11-46-11(1), it reads that "if the governmental
entity is a municipality, then (service of the notice of claim) upon the city clerk (may be had)." Until these
issues are developed, we cannot make a determination as to whether Lattimore substantially complied with
the MTCA's notice of claim requirements.

                                                CONCLUSION

¶15. Recent case law has created a substantial compliance standard based on a case-by-case factual
analysis. Under the substantial compliance standard, a genuine issue of material fact is in dispute justifying
reversal. Therefore, we reverse the affirmance of summary judgment by the Jones County Circuit Court,
and we remand this case for further proceedings consistent with this opinion.

¶16. REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS
OPINION.

PRATHER, C.J., PITTMAN, P.J., BANKS, MILLS, WALLER AND COBB, JJ., CONCUR.
McRAE, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY
SULLIVAN, P.J.




      McRAE, JUSTICE, SPECIALLY CONCURRING:


¶17. This is another case regarding the sufficiency of compliance under the Mississippi Tort Claims Act. I
agree to reverse and remand the case. I also agree that the defendants failed on summary judgment to show
there was no genuine issue of material fact. However, I would further say that substantial compliance was
met. The City of Laurel received actual notice due to the police investigation. A police report was filed. The
§ 11-46-11 and Reaves v. Randall, No. 97-CA-00982-SCT, 1999 WL 909578 (Miss. Dec. 31, 1998),
notice standard was met. I would let this case continue under the substantial compliance standard of Carr
v. Town of Shubuta, No. 96-CT-01266-SCT, 1999 WL 62772 (Miss. Feb. 11, 1999), for trial on the
merits of the negligence cause of action. There is evidence that there was adequate notice the date of the
accident such that substantial compliance was realized.

¶18. Moments after the accident, the substantial compliance test was met when the City of Laurel's own
police department investigated the February 3, 1995, accident, which involved one of the city's
own vehicles. The police took similar action in Carr, where this Court found that the plaintiff had
substantially complied. See Carr. Further, a mere three days after the accident, Lattimore's attorney sent a
letter of representation to both the City of Laurel and firefighter Chandler informing them that he was
representing the plaintiffs as to the instant action. The City obviously was on notice since, coupled with the
letter making the claim, one of its agents, a police officer, conducted an investigation and filed a relative
report regarding the accident. Even in his" affidavit," Alex Pope, the City of Laurel Safety Director, neither
denied that the City or he received the representation letter nor that the City conducted the investigation.
Further, the record contains no affidavit that the Mayor did not receive the letter, i.e., notice. The City had
everything the statute requires. Further, there is nothing from Chandler as to what he did with his letter. If he
turned his letter into the proper ones in authority then there is also substantial compliance. Usually a
governmental entity does not have the opportunity to immediately investigate one of its accidents. Here,
under its police powers, the City of Laurel was able to do whatever it desired to complete the investigation.
Immediately after the accident, the City was on notice that one of its vehicles, the fire truck, was involved in
an accident; within hours of the investigation, the City had information on the parties, injuries, and liabilities,
as well as other information, through the police report. One must remember the only purpose of the statute
is to give the governmental entity notice so that such entity has an opportunity to settle and make any
correction so as to avoid reoccurrence of such a situation. By the actions of his attorney and the city's own
police department investigation, Lattimore more than substantially complied with the statute.

¶19. Notice compliant with the statutory requirements was given. Key to this case are such requirements as:
(1) the extent of the injury, (2) the names of all parties known to be involved, (3) the amount of money
damages sought, and (4) the residence of the person making the claim at the time of the injury and at the
time of the notice filing. Laurel Police Department Officer Roy Watson provided much of the necessary
information in his February 3rd accident report, which was filed the day of the accident. The accident report
discloses that the plaintiffs complained of pain, and it lists the involved parties and their addresses. Further,
the report provides that liability fell to Chandler in that he contributed to the accident through his inattention.
The police report is not a claim form but a means by which the City of Laurel may attain all requisite
information to facilitate its investigation and determine whether it is liable. The importance of the police
report is magnified by the fact that the investigator-a city employee-is a police officer who is trained to
determine liability and report such, as well as indicate the amount of damages-both property and personal
injury. While the amount of damages sought may not be explicit, the fact that the City investigated the
accident and determined liability should have given the City a reasonable presumption of what damages
existed and would be sought for recovery. Reading the police report together with the letter of Lattimore's
attorney, the City must have been, or at least should have been, statutorily aware of the situation. Lest we
forget the purpose of the notice statute is to provide the requisite information to evaluate the claim and
perhaps make remedial changes. When the City is on actual notice as in this case, one wonders why such
should not constitute substantial compliance.

¶20. Hence, it is obvious the City had actual notice. The investigation was conducted. Authorities within the
City were aware of what happened. Such information should and did filter to the appropriate officials
regardless of whether the City has appropriate internal notice procedures for claims evident through
investigations. If the City lacks such procedures, it should create them. The City is an artificial person.
Thereby, as would be a natural person-a human being-the City is responsible for the memory of and relative
behavior regarding its collective acts. At least constructive notice was evident, which in and of itself is a
legal doctrine that implies substantial compliance to any statutory notice requirement.

¶21. Reaves states quite clearly that:

      [T]he Act leaves the term "chief executive officer of the governmental entity" undefined.
      This language has proved overly broad and likely has created much hardship. In order to give
      reasonable meaning to the statute, we hold today that this term may be read to include any of
      the following: president of the board, chairman of the board, any board member, or such
      other person employed in an executive capacity by a board or commission who can be
      reasonably expected to notify the governmental entity of its potential liability. The purpose
      of the Act is to insure that governmental boards, commissioners, and agencies are informed of claims
      against them. Such notice encourages entities to take corrective action as soon as possible when
      necessary; encourages pre-litigation settlement of claims; and encourages more responsibility by these
      agencies.

See id. (emphasis added). Unfortunately, today the majority does not further acknowledge the agency
responsibility it recently encouraged in Reaves. In a sworn affidavit, Lattimore's counsel stated that he sent
the aforementioned letter to the City of Laurel. Further, the City of Laurel Police Department conducted an
investigation and filed a report. All of which implies notice to someone in an executive capacity as the City
of Laurel is the executive umbrella controlled by the Mayor under which each department operates.
Thereby, as per Reaves, the governmental entity was informed of and responsible for its potential liability.
The governmental entity is the party Reaves tells us needs to be notified, and IT, in this case the City of
Laurel, HAS BEEN NOTIFIED.

¶22. To solemnize the situation, one should take a cue from the Minnesota Supreme Court:

      It is undisputed by the parties that plaintiff did not comply with the express terms of the notice
      provision contained in Minn.St.1971, § 466.05. This, however, is not fatal to plaintiff's cause. If
      substantial compliance can be shown, the notice requirement of the statute will be satisfied. Kelly v.
      City of Rochester, 304 Minn. 328, 231 N.W.2d 275 (1975); Jenkins v. Board of Education of
      Minneapolis Special School Dist. No. 1, 303 Minn. 437, 228 N.W.2d 265 (1975); Seifert v.
      City of Minneapolis, 298 Minn. 35, 213 N.W.2d 605 (1973). This court recently held, in Kelly v.
      City of Rochester, supra, that a municipality's actual notice of a possible claim will constitute
      substantial compliance with the notice provision. As we stated there:

      " * * * actual notice on the part of the municipality or its responsible officials of sufficient facts to
      reasonably put the governing body of the municipality on notice of a possible claim will be in
      compliance with the notice requirements of Minn.St.1971, § 466.05, subd. 1. Our holding today does
      no more than follow the trend of our recent opinions in recognizing the arbitrariness of the notice
      provision and in an attempt to remedy this injustice, we declare that substantial compliance is
      accomplished by actual notice on the part of the municipality even if such knowledge is acquired
      through its own procedures or personnel." 304 Minn. 333, 231 N.W.2d 278.

See Kossak v. Stalling, 277 N.W.2d 30, 32-33 (Minn. 1979) (emphasis added).
¶23. There is no prejudice to the City as its executive received notice even before the attorney sent the
letter regarding the accident. How could the City prove prejudice when it was strictly put on notice of the
accident because it investigated through its police department? There is no prejudice because the City
possesses all of the facts under its police power authority. Given that this Court's mandate of substantial
compliance with the notice statute was satisfied, I would proceed with trial on the merits of the actual
accident.

SULLIVAN, P.J., JOINS THIS OPINION.




1. H.B. 778, 1999 Miss. Laws Ch. __, effective upon approval by the Governor on March 25, 1999. The
Legislature specifically states that the purpose of these amendments was to clarify the notice of claim
requirements.
