IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________
No. 96-60028
(Summary Calendar)
_____________________________
MARY ANN ZEIGLER, Individually and
on behalf of all wrongful death beneficiaries
of the Estate of Ricky Lee Zeigler, Deceased
Plaintiff-Appellant,
versus
Ford Motor Company; Watson Quality Ford, Inc.,
also known as Bill Watson Ford Inc.
Defendants-Appellees.
________________________________________________________
Appeal from the United States District Court
For the Southern District of Mississippi
Jackson Division
(3:95-CV-161)
________________________________________________________
September 17, 1996
Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.
PER CURIAM*:
Plaintiff-Appellant Mary Ann Zeigler, a Mississippi resident,
appeals from the district court’s grant of summary judgment in
favor of Defendant-Appellee Ford Motor Company (Ford).1 Agreeing
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
1
Zeigler had originally filed suit in state court against both
Ford, a non-resident, and Watson Quality Ford, a Mississippi
resident, alleging the same causes of action. Ford removed to
with the challenged holding of the district court, we affirm.
I.
FACTS AND PROCEEDINGS
The facts, with all inferences therefrom presented in the
light most favorable to Zeigler,2 are as follows: Zeigler’s son,
Ricky Lee (decedent), was killed in an automobile accident on
August 1, 1987, when the Bronco II he was driving on Highway 17
in Holmes County, Mississippi rolled over. More than seven years
later, on January 30, 1995, Zeigler instituted this wrongful
death action, claiming the defective condition of the Bronco II
proximately caused her son’s death.
Zeigler alleged various theories of recovery against Ford
including strict liability, negligence, and breach of express and
implied warranties. The district court, in an order dated
December 7, 1995, granted summary judgment in favor of Ford,
holding that the statute of limitations barred Zeigler’s action
against Ford and could not be tolled by Mississippi's fraudulent
concealment exception. Zeigler timely appealed.
federal court, asserting that Watson had been fraudulently joined
to defeat diversity jurisdiction. The district court, in an order
dated June 26, 1996, held that the statute of limitations barred
Zeigler’s claims against Watson. As Zeigler has not appealed the
district court’s order in favor of Watson, any claims against
Watson are waived.
2
When reviewing a grant of summary judgment, we view the facts
and inferences in the light most favorable to the non-moving party.
See Cavallini v. State Farm Mutual Auto Ins. Co., 44 F.3d 256, 266
(5th Cir. 1995).
2
II.
ANALYSIS
THE DISTRICT COURT’S GRANT OF SUMMARY JUDGMENT
A. Standard of Review
When reviewing a grant of summary judgment, we view the
facts and inferences in the light most favorable to the non-
moving party,3 and we review the grant of summary judgment de
novo, using the same criteria used by the district court in the
first instance.4 Summary judgment is mandated “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.”5 If any element
of the plaintiff’s case lacks factual support, a defendant’s
motion for summary judgment should be granted.6
B. The Fraudulent Concealment Exception to Mississippi’s
Statute of Limitations
Mississippi law applicable at the time of decedent’s death
3
See Cavallini, 44 F.3d at 266.
4
LeJeune v. Shell Oil Co., 950 F.2d 267, 268 (5th Cir. 1992).
5
Fed. R. Civ. P. 56(c).
6
See Burden v. General Dynamics Corp., 60 F.3d 213, 216 (5th
Cir. 1995).
3
provided a six year statute of limitations for negligence, strict
liability, and warranty claims.7 Mississippi law recognizes an
exception to the running of the statute of limitations when (1)
the defendant fraudulently conceals the cause of action from the
plaintiff, and (2) the plaintiff uses reasonable diligence in
discovering his cause of action:
If a person liable to any personal action shall
fraudulently conceal the cause of action from the
knowledge of the person entitled thereto, the cause of
action shall be deemed to have first accrued at, and
not before, the time at which such fraud shall be, or
with reasonable diligence might have been, first known
or discovered.8
It is undisputed that unless this exception applies, Zeigler’s
claim is barred by the statute of limitations. Zeigler seeks to
invoke the exception by alleging that (1) Ford fraudulently
concealed the defects in the Bronco II from her and, (2) given
that she lived in a small, isolated community in Mississippi
without access to the national media which publicized the defects
in the Bronco II, she exercised reasonable diligence in
discovering her cause of action.
1. First element: affirmative act by the defendant
The fraudulent concealment exception comprises two
7
Miss. Code Ann. § 15-1-49 (1972)(negligence and strict
liability); Miss. Code Ann. § 75-2-725 (1996)(warranty). The
Mississippi legislature has since reduced the statutory limitation
period for actions covered under § 15-1-49 to three years. See
Miss. Code Ann. § 15-1-49 (1996).
8
Miss. Code Ann. § 15-1-67 (1996).
4
elements. The first element requires some act or conduct of an
affirmative nature by the defendant to conceal the cause of
action from the plaintiff.9 In Reich v. Jesco,10 the Mississippi
Supreme Court explained this element:
To establish fraudulent concealment in this state,
there must be shown some act or conduct of an
affirmative nature designed to prevent and which does
prevent discovery of the claim. See Federal Land Bank
v. Collins, 156 Miss. 893, 127 So. 570 (Miss. 1930).
Mere general allegations will not withstand a motion
for summary judgment.11
Zeigler argues that the discrepancy between what Ford knew
and what Ford revealed to the public constitutes affirmative
misrepresentations sufficient to qualify as concealed fraud.
More specifically, Zeigler claims that Ford did not disclose
certain inculpatory internal documents to her before she filed
suit and that Ford defended the safety and quality of the Bronco
II in the news media at a time when Ford was aware of the
vehicle’s defects.
Even if proved, this discrepancy would not be enough to
constitute affirmative conduct of concealment by Ford. The
district court found that Ford made no intentional effort to
9
Mississippi law recognizes the general rule that in the
absence of a fiduciary relationship between the parties, some
affirmative act of concealment is necessary to constitute concealed
fraud. Van Zandt v. Van Zandt, 227 Miss. 528,539, 86 So. 2d 466,
470 (Miss. 1956).
10
526 So. 2d 550 (Miss. 1988).
11
Reich, 526 So. 2d at 552 (emphasis added).
5
conceal the defects but simply defended its product in the
market. Neither Ford’s defense of its product nor Ford’s failure
to admit liability can be considered affirmative conduct of
concealment sufficient to trigger the subject exception. As
noted by the district court, if it were to accept Zeigler’s
theory that Ford’s defense of the Bronco II constituted
fraudulent concealment, then fraudulent concealment could be
raised successfully against any manufacturer that defended
allegations that its product was defective. Such a result would
effectively subsume the statute of limitations.
2. Second element: reasonable diligence
The fraudulent concealment exception applies only if Zeigler
proves both of the conjunctive elements of the exception. As
Zeigler cannot prove the first element, the exception does not
apply, so we would not need to examine the second element. We
note nevertheless that even if Zeigler had established
affirmative conduct by Ford sufficient to meet the active
concealment element, the exception still would not apply, for
Zeigler also fails to satisfy the second element. It requires
the plaintiff to exercise reasonable diligence in attempts to
discover the cause of action within the otherwise applicable
period of limitation.
Zeigler claims she was unaware of her cause of action until
she read about the defects in the Bronco II in the Jackson
(Mississippi) Clarion Ledger more than seven years after
6
decedent's death. Zeigler argues that she did not know and could
not have known of the defects in the Bronco II before the period
of limitations expired because she is a sixty-one year old woman
living in an isolated community in rural Mississippi. In her
affidavit in response to Ford’s motion for summary judgment,
Zeigler declares that she does not subscribe to and has never
read any of the national newspapers that publicized the problems
associated with the Bronco II. Zeigler also declares she does
not listen to National Public Radio, which also brought the
defects to the public’s attention.
Despite the loss of her son in a one-car accident, at no
time during the seven and one-half years following decedent's
tragic death did Zeigler do anything at all to determine if she
might have a cause of action. Yet Mississippi law required her
to exercise reasonable diligence. Complete inaction cannot be
considered reasonable diligence. Furthermore, Zeigler cannot
excuse her failure to take any action to discover whether she had
a cause of action solely on the ground that she lives in an
isolated community. That might explain why the information never
found its way to Zeigler, but it cannot explain her total
inaction.
Finally, the policy behind Mississippi’s lengthy limitations
period further supports the district court’s grant of summary
judgment in favor of Ford. As the district court notes,
Mississippi’s statutes of limitations are designed to strike a
7
balance between allowing claimants sufficient time to file suit
and protecting potential defendants from exposure to suit in
perpetuity.12 The statutory time periods represent a
“legislative judgment that, notwithstanding the presence of an
otherwise viable and enforceable claim, the case ought not to
proceed.”13
In sum, Zeigler has failed to show either (1) affirmative
conduct on the part of Ford to conceal or (2) reasonable
diligence on her part to discover a cause of action, both of
which are necessary to invoke the fraudulent concealment
exception to Mississippi’s statute of limitations; therefore,
Zeigler’s action is barred. For the reasons given by the
district court, its grant of summary judgment in favor of Ford is
AFFIRMED.
12
See Ford Motor Co. v. Broadway, 374 So. 2d 207, 209 (Miss.
1979)).
13
See Reich v. Jesco, 526 So. 2d 550, 551 (Miss. 1988)).
8