IN THE SUPREME COURT OF MISSISSIPPI
NO. 1998-CA-01287-SCT
JANET D. THORNBURG AND LARRY THORNBURG
v.
MAGNOLIA REGIONAL HEALTH CENTER
DATE OF JUDGMENT: 07/27/1998
TRIAL JUDGE: HON. FRANK A. RUSSELL
COURT FROM WHICH APPEALED: ALCORN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: MICHAEL DALE COOKE
ATTORNEY FOR APPELLEE: JAMES T. McCOLGAN, III
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: REVERSED AND REMANDED - 5/13/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 6/3/99
BEFORE PRATHER, C.J., MILLS AND COBB, JJ.
PRATHER, CHIEF JUSTICE, FOR THE COURT:
STATEMENT OF THE FACTS AND CASE
¶1. On November 19, 1997, Janet Thornburg ("Thornburg") filed suit against Magnolia Regional Medical
Center ("Magnolia") for burns which she received one year earlier while receiving heat lamp treatments. On
November 30, 1997, Magnolia filed a motion to dismiss, alleging non-compliance with the notice provisions
of the Mississippi Tort Claims Act, Miss. Code Ann. § 11-46-11 (Supp. 1998). The trial judge granted
the motion to dismiss, and Thornburg, feeling aggrieved, timely appealed to this Court.
ISSUE
Whether the trial court properly dismissed the Appellants' complaint based on the
Appellants' failure to strictly comply with the notice requirement of Miss. Code Ann. § 11-
46-11?
¶2. The trial court dismissed Thornburg's lawsuit based on her alleged non-compliance with the notice
provisions of the Mississippi Tort Claims Act, Miss. Code Ann. § 11-46-1, et. seq. (Supp. 1998). Section
11-46-11(1) provides that:
(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.
(3) All actions brought under the provisions of this chapter shall be commenced within one (1) year
next after the date of the tortious, wrongful or otherwise actionable conduct on which the liability
phase of the action is based, and not after; provided, however, that the filing of a notice of claim as
required by subsection (1) of this section shall serve to toll the statute of limitations for a period of
ninety-five (95) days. The limitations period provided herein shall control and shall be exclusive in all
actions subject to and brought under the provisions of this chapter, notwithstanding the nature of the
claim, the label or other characterization the claimant may use to describe it, or the provisions of any
other statute of limitations which would otherwise govern the type of claim or legal theory if it were
not subject to or brought under the provisions of this chapter.
Miss. Code Ann. § 11-46-11 (Supp. 1998).
¶3. In Reaves v. Randall, No. 97-CA-00982 (Miss. Dec. 31, 1998), this Court adopted a "substantial
compliance" scheme in enforcing the notice requirements of the Tort Claims Act. This Court in Reaves held
that "(w)hen the simple requirements of the Act have been substantially complied with, jurisdiction will
attach for the purposes of the Act." In Carr v. Town of Shubuta, No. 96-CT-01266-SCT (Miss. Feb.
11, 1999), this Court further explained that
[N]otice is sufficient if it substantially complies with the content requirements of the statute. What
constitutes substantial compliance, while not a question of fact but one of law, is a fact-sensitive
determination. In general, a notice that is filed within the [requisite] period, informs the municipality of
the claimant's intent to make a claim and contains sufficient information which reasonable affords the
municipality an opportunity to promptly investigate the claim satisfies the purpose of the statute and
will be held to substantially comply with it.
Carr, slip opinion at 5. (Quoting Collier v. Prater, 544 N.E. 497, 498-99 (Ind. 1989). In providing
notice in the present case, Thornburg sent a six page letter to Magnolia's "Administrator" in which she set
forth the nature of her claim against Magnolia and requested the commencement of settlement negotiations.
The letter provided a detailed description of the incident, explained the injuries Thornburg had suffered,
provided estimates of her damages, and offered to settle the case for $ 100,000.
¶4. Magnolia alleges that Thornburg's notice was deficient in four respects. First, Magnolia asserts that, in
providing notice to the "Administrator" of the hospital, Thornburg failed to give notice to Magnolia's "Chief
Executive Officer," as required by statute. In defining the term "Chief Executive Officer" within the context
of the Tort Claims Act, this Court held in Reaves that:
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, slip opinion at 3. Magnolia argues that the "Chief Executive Officer" of the hospital is actually the
Chairman of the Board of Trustees and that Thornburg's notice was accordingly defective. It is apparent,
however, that a hospital administrator constitutes a "person employed in an executive capacity . . . who can
be reasonably expected to notify the governmental entity of its potential liability" as set forth in Reaves. This
Court accordingly concludes that the hospital administrator was a proper recipient of the statutory notice,
and this argument is without merit.
¶5. Magnolia next argues that Thornburg's notice was defective in that it failed to include her "residence
either at the time of the injury" or "at the time of filing the notice," both of which are required by § 11-46-
11(2). It is apparent, however, that the scheme of substantial compliance adopted by this Court in Reaves
and Carr does not require that a plaintiff substantially comply with each informational notice requirement set
forth in the Tort Claims Act. As noted earlier, this Court held in Carr that "(i)n general, a notice that is filed
within the [requisite] period, informs the municipality of the claimant's intent to make a claim and contains
sufficient information which reasonable affords the municipality an opportunity to promptly investigate the
claim satisfies the purpose of the statute and will be held to substantially comply with it." Carr, slip opinion
at 5.
¶6. This Court concludes that, notwithstanding Thornburg's failure to include her address in her letter, her
notice letter nevertheless informed Magnolia of the substance of her claim and provided Magnolia with
sufficient information to conduct a proper investigation. Thornburg's letter explained in depth the nature of
the incident which allegedly gave rise to her injuries, and the letter clearly set forth the claimed damages
resulting therefrom. Also, the letter provided the address of the attorney handling the claim, and Magnolia
could have presumably obtained the information regarding Thornburg's residence by conducting a brief
investigation. This argument is without merit.
¶7. Magnolia next argues that Thornburg's letter was deficient in that it specifically provided that the
settlement offer set forth therein would expire in twenty days. Magnolia argues that this provision rendered
the notice a conditional settlement offer rather than a valid notice of claim. Magnolia further argues that the
"twenty day" language prejudiced Magnolia's right to a ninety-day waiting period as set forth in the Tort
Claims Act. Miss. Code Ann. § 11-16-11(1) requires 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."
¶8. The ninety-day waiting period in § 11-46-11(1) grants a governmental entity a grace period prior to the
filing of a lawsuit in which to consider the merits of the claim and to conduct any investigation which it deems
necessary. It does not rationally follow, however, that the provisions of § 11-46-11(1) should serve to limit
or dictate the terms of any settlement offer which a plaintiff might include within a letter providing notice. §
11-46-11 is concerned with the time in which a lawsuit may be filed, and the statute can not reasonably be
interpreted as requiring that a governmental entity be given ninety days in which to accept or reject any
settlement offer. We conclude that the terms of any settlement offer is a contractual rather than a statutory
matter, and this argument is without merit.
¶9. Magnolia's final argument is that Thornburg's notice was deficient in that it was sent by first class mail
rather than by being "delivered in person or by registered or certified United States mail," as required by
§ 11-46-11(2). The present issue has not been addressed by a prior decision of this Court, and it is clear
that the present case involves a technical violation of § 11-46-11(2). We conclude however, that, a failure
to comply with this provision should not, as a matter of law, serve as a basis for dismissing a lawsuit. We
hold that, in cases in which notice is sent by first class mail, a governmental entity must demonstrate actual
prejudice resulting from the failure to comply with the "registered or certified mail" requirement in order to
be entitled to a dismissal on this basis.
¶10. Magnolia does not attempt to argue that it did not receive the notice or that it was prejudiced in any
manner by Thornburg's failure to send the notice by registered or certified mail. The statutory notice
required by the Tort Claims Act does not give rise to the same jurisdictional/due process concerns which
arise, for example, in the context of summonses mailed following the filing of a lawsuit. See Hamm v. Hall,
693 So.2d 906, 910 (Miss. 1997)(holding that a divorce summons which was sent to an husband via first
class mail did not give rise to personal jurisdiction over the husband so as to entitle the trial court to enter a
personal judgment for child support or alimony against the husband.)
¶11. The statutory notice is, instead, merely a means of informing a governmental entity of the existence of a
claim which might give rise to a lawsuit in the future. Given that this issue is not a jurisdictional one, there is
no valid reason why the sending of the notice by first class mail should result in a dismissal in cases in which
the governmental entity has (1) received the notice and (2) suffered no actual prejudice as a result of the
plaintiff's failure to comply with § 11-46-11(2). Both of these requirements are met in the present case. The
ruling of the trial court is accordingly reversed, and this case is remanded for further proceedings consistent
with this opinion.
¶12. REVERSED AND REMANDED.
SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE, SMITH, MILLS, WALLER AND
COBB, JJ., CONCUR.
1. The notice provisions set forth in § 11-46-11 have recently been amended by the Legislature, but these
amendments are effective from and after passage and are not applicable to the present case. The new
statute was signed by the Governor on March 25, 1999. See: 1999 Miss. Laws Ch. 469 (HB778)