v. NO IA SCT

Transcription

1 E-Filed Document Mar :44: IA SCT Pages: 21 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO.: 2013-IA SCT NORTH AMERICAN MIDWAY ENTERTAINMENT, LLC; MID-AMERICA SHOWS TRANSPORTATION, INC.; and NORTH AMERICAN MIDWAY ENTERTAINMENT-AMUSEMENT SOUTH, INC. APPELLANTS v. NO IA SCT TOMMY W. MURRAY and KELLIE. E. MURRAY APPELLEES ON APPEAL FROM THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT BRIEF OF APPELLEES/PLAINTIFFS SUBMITTED BY: JARED A. KOBS (MSB NO ) BENJAMIN N. PHILLEY (MSB NO ) KOBS & PHILLEY, PLLC Post Office Box 2230 Madison, Mississippi West Jackson Street Ridgeland, Mississippi Telephone: Facsimile:

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO.: 2013-IA-Ol138-SCT NORTH AMERICAN MIDWAY ENTERTAINMENT, LLC; MID-AMERICA SHOWS TRANSPORTATION, INC.; and NORTH AMERICAN MIDWAY ENTERTAINMENT -AMUSEMENT SOUTH, INC. APPELLANTS v. NO.2013-IA SCT TOMMY W. MURRAY and KELLI E. MURRAY APPELLEES CERTIFICATE OF INTEREST PERSONS The undersigned counsel certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of this Court or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Mid-America Shows Transportation, Inc., Appellant 2. North American Midway Entertainment-Amusement South, Inc. f/k/a Farrow Shows, Inc., Appellant 3. North American Midway Entertainment, LLC, Appellant 4. Tommy W. Murray and Kelli E. Murray, Appellees 5. Keith D. Obert, Esq., Attorney for Appellants 6. Jared A. Kobs, Esq., Attorney for Appellees 7. Benjamin N. Philley, Esq., Attorney for Appellees 8. The Honorable Winston Kidd, Trial Judge 9. Mississippi Defense Lawyers Association, Amicus Curiae 10. Hal S. Spragins Jr. And Hickman, Goza & Spragins, PLLC, Counsel for Amicus Curiae lsi: Jared Kobs JARED A. KOBS ATTORNEY FOR TOMMY W. MURRAY

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS...i TABLE OF CONTENTS...ii TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUES... 1 STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS AND PROCEDURAL HISTORY... 2 ARGUMENT... 3 I. RESTATEMENT OF CONFLICTS... 3 II. MISSISSIPPI CODE ANN IS INAPPLICABLE TO THE FACTS IN THIS CASE... 9 III. BRIEF OF AMICUS CURIAE CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF FILING... 16

4 TABLE OF AUTHORITIES Cases Allison v. ITE Imperial Corp., 729 F. Supp. 45 (S.D.Miss. 1990)... 4, 5 Allison v. ITE Imperial Corporation, et al 928 F. 2d 137 (5 th Cire.l991)... 3 Bell v. General Motors Corp., 992 F. Supp. 859 (S. D. Miss. 1997) Bethlehem Steel Co. v. Payne, 183 So. 2d 912,916 (Miss. 1966)... 9 Blanchard v. Engine & Gas Compressor Services, Inc., 371 So. 2d 265 (La. 1979) Boardman v. United Services Automobile Association, 470 So.2d 1024, at 1031 (Miss. 1985)... 8 Cowan v. Ford Motor Co., 437 So. 2d 46 (Miss. 1983)... 11, 12 Cowan v. Ford Motor Co., 713 F. 2d 100 (5 th Cir. 1983) Cummings v. Cowan, 390 F. Supp. 1251, 1254 (N.D. Miss. 1975)... 9 Davis v. National Gypsum Co. (citations omitted)... 7 Dunn Construction Co. v. Bourne, 172 Miss. 620, 159 So. 841 (1935)... 9 Fells v. Bowman, 274 So.2d 109, 112 (Miss. 1973)... 8 Guthrie v. Merchants National Bank of Mobile, 254 Miss. 532, 180 So.2d 309 (1965)... 9 Guthrie v. Merchants National Bank of Mobile, 254 Miss. 532, 545, 180 So.2d 309, 315 (1965) Jackson v. National Semi-Conductor Date CheckerlDTS, Inc., Kershaw v. Sterling Drug, 415 F. 2d 1009 (5 th Cire. 1969)... 9, 11 Louisiana & Mississippi R. Transfer Co. v. Long, 159 Miss. 654, 131 So. 84, 88 (1930)... 9, 11 Maryland Casualty Co. v. Wiliams, 377 F. 2d 389, 394 (5 th Cir. 1967) McDaniel v. Ritter, 556 So.2d 303 (Miss. 1989)... 8 Mitchell v. Craft, 211 So.2d 509, (Miss. 1968)... 4, 10

5 Morningstar v. General Motors Corp., 847 F. Supp. 489, (S.D. Miss. 1994)...10 Steele v, G.D. Searle & Co., 422 F. Supp. 560, 563 (S.D. Miss 1976) Shewbrooks v. A.C & s., Inc., 529 So. 2d 557, (Miss. 1988) Vick v. Cochran, 316 So.2d 242, 246 (Miss. 1975)... 8 Williams v. Taylor Machinery, Inc. 529 So.2d 606,609 (Miss. 1988) Statutes Miss. Code Ann Miss. Code Ann , 9, 11, 12, 13, 14 Other Authorities Choice of Law Principles and Restatement (Second) of Conflict of Laws Restatement (Second) Conflict of Laws Restatement of the Law Second Conflict of Laws 2d...2 Tennessee's Products Liability Act, Tenn. Code Ann. Sec (Supp. 1989)...4

6 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NORTH AMERICAN MIDWAY ENTERTAINMENT, LLC; MID-AMERICA SHOWS TRANSPORTATION, INC.; and NORTH AMERICAN MIDWAY ENTERTAINMENT-AMUSEMENT SOUTH, INC. v. TOMMY W. MURRAY and KELLIE. MURRAY APPELLANTS NO IA SCT APPELLEES BRIEF OF APPELLEES/PLAINTIFFS COME NOW, Appellees/Plaintiffs, Tommy W. Murray and Kellie E. Murray, by and through counsel, and file this Appellees' Brief in response to Appellants/Defendants brief in support of their Interlocutory Appeal, and in support thereof, would respectfully show unto the Court the following, to wit: STATEMENT OF THE ISSUES 1. Whether this appeal involves a "revival of a claim"? 2. Whether this appeal involves a "claim time-barred"? 3. Whether the trial court incorrectly denied the corporate Appellants/Defendants' Motion to Dismiss? STATEMENT OF THE CASE Appellants/Defendants, in the first sentence in their Statement of the Case, affix a footnote asserting, "Upon information and belief, Plaintiffs first filed their action in Louisiana, but it was dismissed because it was filed after the Louisiana statute of limitations had expired." The record before this court is devoid of this assertion. Appellants/Defendants' statement "Upon information and belief' has no bearing in this appeal. What does have bearing in this appeal is the fact that the Appellees/Defendants are properly before the Hinds County Circuit Court. Appellants/Defendants assert that the only controlling law

7 in this case is one statute, Miss. Code Ann But this and other courts have found otherwise. This statute is only one item to be considered, but there is applicable case law supporting the Appellees/Plaintiffs position, as well of the Restatement of the Law Second Conflict of Laws 2d. Taking the whole body of relevant law, the statute is wholly inapplicable given that (1) the statute of limitations is a procedural issue, as opposed to a substantive issue; and (2) the Appellants/Defendants are either resident defendants or licensed to do business in Mississippi or are domestic corporations with their principle place of business in Mississippi (see documents from the MS Secretary of State, R. pgs ). Given that the 3 rd Defendant, the Driver for Appellants/Defendants was a Mississippi resident at all times material herein, the Restatement (Second) of Conflict of Laws, 6, Choice Of Law Principles and 145 applies. These Sections, and as interpreted by this Honorable Court, and otherwise, are controlling in the issues before this Honorable Court. STATEMENT OF THE FACTS AND PROCEDURAL HISTORY This case involves an automobile collision occurring in St. Charles, Louisiana, between Appellee/Plaintiff Tommy Murray, a resident of Georgia, and James E. German, Deceased, who was a resident of Mississippi at the time of the collision and at the time of his death and who was employed by the Midway Appellants/Defendants in the course and scope of his employment at the time of the collision with Appellees/Plaintiffs. On or about May 4, 2009, Plaintiff Tommy W. Murray was driving a 1996 Chevrolet 1500 Pickup Truck northbound on Interstate Highway 310 in St. Charles, Louisiana. As Tommy W. Murray attempted to exit onto Interstate 10 from Interstate 310, he collided with the rear of a semi-truck owned by Appellant/Defendant, Mid America Shows Transportation, Inc., and driven by James E. German, an employee of the company. James E. German took the wrong exit. He pulled off ofinterstate 310 onto the Interstate 10 exit and brought his 18-wheeler to a complete stop. He then proceeded to put his I8-wheeler in reverse and begin driving his 18-wheeler in reverse on the exit ramp in an attempt to get back on

8 Interstate 310. In doing so, he obstructed the highway and the Plaintiff s path of travel thereon, resulting in the subject collision. On May 1, 2012, Appellees filed a lawsuit, arising out of the negligent and grossly negligent acts of Defendants resulting in the motor vehicle collision, in the Circuit Court of the First Judicial District of Hinds County, Mississippi. The lawsuit was properly commenced in Hinds County, Mississippi, pursuant to Miss. Code Ann , because James E. German, Deceased, resided in Hinds County at the time of his death; then Defendant, the Estate of James E. German, Deceased, was opened in Hinds County; and the principal place of business for, Mid-America Shows Transportation, Inc., and Midway South are located in Hinds County. On June 21,2012, Appellants' filed their Answer which contained a Motion to Dismiss and then also filed a separate Motion to Dismiss on that same date. Thereafter, on July 3,2012, Appellees/Plaintiffs filed their Response in Opposition to Appellants' Motion to Dismiss. On October 18,2012, a hearing on Appellants'/Defendants' Motion to Dismiss was held before the Honorable Winston Kidd. On June 14, 2013, Judge Kidd entered an Order denying Appellants'/Defendants' Motion to Dismiss. On July 3, 2013, Appellants/Defendants filed their Petition for Interlocutory Appeal. ARGUMENT I. RESTATEMENT OF CONFLICTS A. In determining whether or not the subject case should be prosecuted in Mississippi, under its procedural laws, the case of Allison v. ITE Imperial Corporation, et al928 F.2d 137 (5 th Circ. 1991, addresses the real issue in this case. Plaintiff Mr. Allison was a Mississippi resident, employed by a Mississippi corporation, Tru-Amp Corporation (Tru-Amp). Allison, Tru-Amp, and its insurance company, as intervenor, filed an action against the -3-

9 Defendants in the Southern District of Mississippi. The District Judge granted summary judgment and the Plaintiffs/Appellants appealed. The Circuit Court affirmed the District Court, using an analysis which should be controlling in the case sub judice. B. Mr. Allison, Plaintiff/Appellant, was working for his employer in Brentwood, Tennessee, to work on equipment at South Central Bell's (Bell) facility. Allison was i~ured on the Bell premises after being there for five (5) days. The equipment he was working on and which i~ured him, was manufactured in Pennsylvania by Defendant ITE Imperial Corp. (ITE). ITE was subsequently acquired by Defendant Gould, Inc., a Delaware corporation. Gould was owned by Nippon Mining U.S., which was a division of a Japanese company. Plaintiffs filed suit in Mississippi state court against defendants ITE and Gould. The action was properly removed to district court on the basis of diversity jurisdiction. The district court granted summary judgment for the defendants, holding, as discussed infra, (1) that Tennessee, not Mississippi, law applied and (2) that the statute of repose found in Tennessee's Products Liability Act, Tenn. Code Ann. Sec (Supp.1989) (product liability actions against manufacturers must be brought within ten years from the date on which the product was first purchased for use or consumption) barred the action. Allison, 729 F. Supp. 45. Appellants timely appealed. Id. at page 137. C. The Circuit court addressed the case of Mitchell v. Craft, 211 So.2d 509, (Miss. 1968), and stated that it had "adopted the 'center of gravity' or 'most significant relationship' test... " This was based on the Restatement (Second) Conflict of Laws. In addressing Mitchell, the Mississippi Supreme Court applied the following: Sec The General Principle. (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, as to that issue, has -4-

10 the most significant relationship to the occurrence and the parties under the principles stated in Sec. 6. (2)Contacts to be taken into account in applying the principles of Sec. 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. Allison, 729 F. Supp These contacts are to be evaluated according to their relative importance with respect to the particular issue. D. The Allison Court continued, in citing Mitchell: "Based upon these sections, the court held: Ordinarily, the local law of the state where the injury occurred will determine the rights and liabilities of the parties, "unless with respect to the particular issue, some other state has a more significant relationship to the occurrence and parties." Id. At 516.' (Emphasis ours.) "And, for the claims in Mitchell, the court next held that Mississippi law applied, because it had' the most substantial relationship to the parties." Id. At 516. (Footnote omitted.) E. The Allison Court further addressed, "Allison's presence there (Tennessee) was far from fortuitous, having worked there for five consecutive days, the Court concludes that no other interested state has a 'more significant relationship to the occurrence and the parties' involved in this suit than the State of Tennessee. Accordingly, the substantive law of the State of Tennessee will apply to the Plaintiffs' claims." Id. At 48 (quotation omitted); Allison, Id. at The Allison Court goes on to address Sec. 164 Contributory Fault, which is not at issue herein. -5-

11 F. Consider the comparison between Allison and the current case before this Honorable Court: The relevant section of Restatement Conflicts, 145, gives rise to the basis for the subject case remaining in the Circuit Court of Hinds County, Mississippi. Subsection (1) generally addresses what state has the most interest in the case "has the most significant relationship to the occun'ence and the parties..." While the automobile collision did occur in Louisiana, and its "Rules of the Road" may apply, consider that no Louisiana party, no plaintiff or defendant, were citizens or residents of said state. G. On the other hand, while the Appellees/Plaintiffs are Georgia residents, the collision did not occur in Georgia. All three Appellants/Defendants are specifically connected to Mississippi: 1. Mr. James G. German, deceased, was the Appellants/Defendants' driver and a resident of Mississippi. (He survives in this action by way of his Estate.) 2. Appellant/Defendant North American Midway Entertainment-Amusements South, Inc., f/k/a Farrow Amusements Co., Inc, is a Domestic Business Corporation per R. pgs 56, Appellant/Defendant Mid-America Shows Transportation, Inc., is a foreign Business Corporation incorporated in Indiana, but who's Principal Office Address is 576 Highland Colony Parkway, Suite 110, Ridgeland, MS R. pg. 47. All three (3) Defendants are Mississippi residents, Mississippi entities, or as in one, licensed to do business with the Mississippi Secretary of State with the principle office in Jackson, Mississippi. H. Pursuant to the Restatement (Second) Conflict of Laws 145, the most appropriate subsection addressing where this action should be pursued, the state which "has the most -6-

12 significant relationship to the occurrence and the parties..." pursuant to subsection (1), is addressed is specifically subsection (c): "the domicile, residence, nationality, place of incorporation and place of business ofthe parties..." The "occurrence" occurred between the three (3) Mississippi related Defendants, two of which are Appellants herein, the other being the Defendant driver, and the two Appellees/Plaintiffs, husband and wife, who filed this case in this State, where all Defendants are residents or doing business in Mississippi. I. Another issue which must be considered in this case, as is cited in Allison, and stated in paragraph E. above, is the short length of time Appellee/Plaintiff was in Louisiana prior to the underlying collision. The Court in Allison found that "Allison's presence there (Tennessee) was far from fortuitous, having worked there for five consecutive days, the Court concludes that no other interested state has a 'more significant relationship to the occurrence and the parties' involved in this suit than the State of Tennessee..." The Allison Court gave credence to the length Mr. Allison had been in Tennessee, five consecutive days. The Appellants/Defendants cannot assert this basis as a reason for Louisiana to take precedence over Mississippi. This Appeal is Interlocutory based on a denial of a Motion to Dismiss, and before such evidence has been addressed in discovery. Appellees/Plaintiffs would assert that no such evidence has been submitted by the Appellants/Defendants, it should be considered that the Murrays were in Louisiana fortuitously. J. The importance placed in the Allison decision, that Mr. Allison was working in Tennessee and not there fortuitously, is also addressed in a case cited by the Allison Court. On page 142 of Allison, the Fifth Circuit opinion addressed Davis v. National Gypsum Co., (citations omitted) where it stated: "In Davis a Mississippi resident stationed at an Army base in Colorado was killed when a mortar shell exploded prematurely." Davis applied Colorado -7-

13 law, holding that the occurrence of the accident in Colorado was not "clearly fortuitous", because the decedent had been stationed there for nine months at the time of his death. 743 F.2d at The district court determined that Allison's presence in Tennessee was not fortuitous, because he had worked there for five consecutive days. Although Allison's presence in Tennessee was not as continuous as that in Davis, we agree that it was not merely fortuitous." Allison goes on, "[t]herefore, the law of the place of the injury (Tennessee) will control unless the Sec. 6 (Restatement Second Conflicts) considerations applied to the States identified by Sec. 145 analysis lead to our concluding that another State has a "more significant relationship." Mitchell 211 So.2d at 516. In that there is no evidence that the Plaintiffs were more than fortuitous travelers in Louisiana, the 145 factors are extremely relevant. Based on that section, especially subsection (c), the proper state to address the issues of the collision and a decision by the jury is Mississippi. K. In the case of McDaniel v. Ritter, 556 So.2d 303 (Miss. 1989), this Honorable Court stated, "The law of a single state does not necessarily control every issue in a given case. We apply the center of gravity test to each question presented, recognizing that the answer produced in some instances may be that the law of this state applies and on other questions in the same case the substantive law of another state may be enforceable." Citing Boardman v. United Services Automobile Association, 470 So.2d 1024, at 1031 (Miss.1985). In this case, Tennessee was also found to be the proper place for the action. But again, Boardman does not have the same circumstances here. Also, in Footnote 6, page 321, this Court stated succinctly: "We have accepted and enforced the Restatement's issue by issue approach." Boardman v. United Services Automobile Assoc., 470 So.2d 1024, 1031 (Miss. 1985); Vick -8-

14 v. Cochran, 316 So.2d 242,246 (Miss. 1975); Fells v. Bowman, 274 So.2d 109, 112 (Miss. 1973). II. MISS. CODE ANN IS INAPPLICABLE TO THE FACTS IN THIS CASE. No basis for a difference of opinion exist as to the fact that Miss. Code Ann (a/kja the "borrowing" statute) states: When a cause of action has accrued outside of this state, and by the laws of the place outside this state where such cause of action accrued, an action thereon cannot be maintained by reason of lapse of time, then no action thereon shall be maintained in this state; provided, however, that where such a cause of action has accrued in favor of a resident of this state, this state's law on the period of limitation shall apply. Appellants/Defendants cite Miss. Code Ann in an effort to apply Louisiana's civil code for tort actions' one-year statute oflimitations as a basis for the dismissal of Plaintiff's claims against the Midway Appellants only. What Appellants fail to take into account is that Section is wholly inapplicable given that (1) the statute oflimitations is a procedural issue, as opposed to a substantive issue; and (2) Appellants are all licensed to do business in Mississippi or are domestic corporations or are residents of this State. (see documents from the MS Secretary of State, R ). In Cummings v. Cowan, 390 F. Supp. 1251,1254 (N.D. Miss. 1975), the Court, citing a long line of Mississippi Supreme Court cases, stated: As a rule, Mississippi treats statutes o(limitation as procedural; and in keeping with the accepted practice of applying procedural rules ofthe forum state irrespective ofthe choice of substantive law, the state generally enforce Mississippi's limitation periods and not those offoreign jurisdictions. Kershaw v. Sterling Drug, [415 F. 2d 1009 (5th Cir. 1969)]; Bethlehem Steel Co. v. Payne, 183 So. 2d 912, (a/kja the "borrowing" statute) is not applicable in this case. Mississippi Code Annotated

15 916 (Miss. 1966); Guthrie v. Merchants National Bank of Mobile, 254 Miss. 532, 180 So.2d 309 (1965); Dunn Construction Co. v. Bourne, 172 Miss. 620, 159 So. 841 (1935); Louisiana & Mississippi R. Transfer Co. v. Long, 159 Miss. 654,131 So. 84, 88 (1930). (Footnotes omitted); see Steele v. G.D. Searle & Co., 422 F. Supp. 560, 563 (S.D. Miss 1976) (where the Court stated: "The Court finds this argument persuasive, but not enough to ignore the rulings that hold that Mississippi, in this case, would follow its previous conflict of laws decisions, that is, it would apply the Mississippi statute of limitations where the statutes of the state wherein the action accrued are considered procedural rather than substantive"). Court stated: In Morningstar v. General Motors Corp., 847 F. Supp. 489, (S.D. Miss. 1994), the The general rule in choice-of-iaw situations is that a Mississippi court will apply its own state procedural law. See Davis, 743 F. 2d at 1134; Maryland Casualty Co. v. Williams, 377 F. 2d 389,394 (5th Cir. 1967); Shewbrooks v. A.C & s., Inc., 529 So. 2d 557, (Miss. 1988); Guthrie v. Merchant Nat'l Bank of Mobile, 254 Miss. 532, 545, 180 So.2d 309, 315 (1965). And, as to matters of substantive law, Mississippi courts will apply the law of the state where the injury occurred unless, with respect to some particular issue, another state has a more significant relationship to the occurrence or parties. See Davis, 743 F. 2d at 1134; Mitchell, 211 So. 2d at 515; see also Restatement (Second) of Conflict of Laws 175. Furthermore, Mississippi follows the traditional rule that a statute of limitation is deemed "procedural" rather than "substantive." Williams v. Taylor Machinery, Inc., 529 So. 2d 606, 609 (Miss. 1988). Where the lawsuit is filed is procedural, and where the accident happened is substantive. As Mississippi procedural law applies since the case was filed in Mississippi State court, Mississippi's statute on the limitation period consequently applies. -10-

16 Additionally, in Jackson v. National Semi-Conductor Data Checker/DTS, Inc., the Court stated: In Cowan v. Ford Motor Co., 713 F. 2d 100 (5th Cir.1983) (Cowan II) the Fifth Circuit certified the following question of law to the Mississippi Supreme Court for decision: May a nonresident plaintiff utilize Mississippi's courts to sue a foreign corporation qualified to do business and actually doing business in Mississippi for an accident which occurred outside Mississippi and which had no relation to the foreign corporation's business activities in Mississippi when the statute of limitations of the state in which the plaintiff resides and in which the accident occurred has barred the claim in that state? In Cowan v. Ford Motor Co., 437 So. 2d 46 (Miss. 1983)[ 2 ] the Mississippi Supreme Court declined to rule on the question certified to it by the Fifth Circuit and stated that the issue which it was asked to rule upon involved the construction of a statute which the Mississippi Supreme Court had previously interpreted in Louisiana and Mississippi R. Transfer Co. v. Long, 131 So. 84 (Miss. 1930). When the Cowan (Cowan III ) case again reached the Fifth Circuit the Court stated: The Mississippi Supreme Court, 437 So.2d 46, has declined to rule on our certified question, as is of course perfectly proper for it to do. See, e.g., Blanchard v. Engine & Gas Compressor Services, Inc., 371 So. 2d 265 (La. 1979). In declining, however, it answered our inquiry. See Appendix, infra. Citing only Long, the Court declined our certified question because (1) it has previously interpreted Section and (2) the issue involved no matter of great public interest presenting a unique or unusual legal problem it had not already decided. Thus, reaffirmed by the Mississippi Supreme Court, Long remains good law. As we pointed out in Cowan II, 713 F. 2d at 105, n. 7, this Courtinterpreting Long-has already declared that under Mississippi law Section "has no application to a corporation that resided in or was qualified to do business in Mississippi at the time the cause of action arose." Kershaw v. Sterling Drug, Inc., 415 F. 2d 1009, 1011 (5th Cir. 1969). It is undisputed that Ford was qualified 2 A diversity case in Mississippi arising from a fatal accident which occurred in Texas, and in which none of the individual parties reside in Mississippi, but the Appellant, Ford Motor Company, is expressly authorized to do business in Mississippi, actually does business in this state, and has in Mississippi for service of process a designated agent on whom process was served. -11-

17 to do business in Mississippi at the time of the fatal accident. Section does not bar Cowan's cause of action. In the Mississippi Supreme Court's September 24, 1986, White decision, the Court made it clear that its ruling in that case should not be construed as affecting Mississippi's "borrowing statute" or the cases interpreting it, including Cowan: Specifically, we do not consider Mississippi Code Annotated Section (1972) nor in any manner disturb the cases there annotated, or Cowan v. Ford Motor Co., 437 So. 2d 46 (Miss. 1983), an opinion in response to a question certified to this Court by the United States Court of Appeals for the Fifth Circuit. Section is concerned only with non-resident Appellants who may move to Mississippi after the accrual of an action against them in the state or country of their former residence. Jackson, 660 F. Supp. 65, (S.D. Miss. 1986) (footnote added) (emphases added). As previously stated, the Midway Appellants are either domestic corporations formed in Mississippi or are licensed to do business here. R Furthermore, the entirety of Appellants' argument revolves around the idea that Appellees are somehow forum shopping. In support of this argument, Appellants cite, almost exclusively, Bell v. General Motors Corp., 992 F. Supp. 859 (S. D. Miss. 1997). 3 However, Bell is inapplicable to the facts in the present case. In Bell, a Louisiana resident moved to Mississippi, after the statute of limitations had run under Louisiana law, in order to utilize Mississippi's lengthier statute oflimitations to file a lawsuit against General Motors. This is the definition of forum shopping! Every part of Appellants argument, as it relates the factual scenario in Bell, is dead on. In fact, Appellants cite Bell in stating that: the Court holds that section requires that, when a cause of action has accrued in favor of a foreign resident, and where that 3 It is important to note that the Supreme Court decided Bell after the 1989 amendment to Miss. Code Ann

18 Id. at 864 (Emphasis added). cause is subsequently barred in the jurisdiction of accrual, the foreign resident cannot revive the cause by moving to Mississippi in an attempt to invoke Mississippi's statute of limitations governing actions in tort. This is precisely what Bell is attempting to do. Forum shopping of this nature is precisely what the statute was designed to discourage. However, unfortunately for the Appellants, the Bell factual scenario is not present in this case. Unlike the present case, there were no resident defendants in Bell and, therefore, Bell is inapplicable to the facts of this case. Further, unlike Bell, Appellees are non-residents. They live in Georgia. They lived in Georgia when the accident occurred. They lived in Georgia when they filed this lawsuit. They continue to live in Georgia to this very day. They never moved to Mississippi in an attempt to escape a statute oflimitations in Georgia. Instead, Appellees correctly commenced an action against Appellants which either are resident defendants, domestic corporations formed in Mississippi or are licensed to do business in Mississippi with their principle place of business in this State. The Circuit Court of the First Judicial District of Hinds County, Mississippi was, at all times, an appropriate forum and venue in which Appellees could bring this action. Choosing to do so does not constitute forum shopping. As such, Appellants/Defendants' misapplication of Mississippi's borrowing statute does not constitute a substantial basis for a difference of opinion as to a question of law. Instead, as cited herein, case law is quite clear on the fact that Mississippi regards statutes of limitation as a procedural issue, rather than substantive; Miss. Code Ann has no application to a corporation that resided in or was qualified to do business in Mississippi at the time the cause of action arose; and Appellees did not engage in forum shopping. III. BRIEF OF AMICUS CURIAE Appellees/Plaintiffs have considered the Amicus Curiae brief submitted in this appeal. -13-

19 Respectfully, Appellees/Plaintiffs do not find the argument and authority submitted to be controlling on the issues before this Honorable Court. Further, the arguments presented by the MDLA are merely regurgitations of the Appellants' arguments and need not be rehashed. CONCLUSION Appellants/Defendants' argument fails to meet the requirements for overruling the Order of the Circuit Court. On the contrary, case law is quite clear on the fact that Restatement of Conflicts considerations and regards the statutes of limitation as a procedural issue, rather than substantive; Miss. Code Ann has no application to a corporation that resided in or was qualified to do business in Mississippi at the time the cause of action arose. Appellees/Plaintiffs did not engage in forum shopping. Moreover, based on the parties being located in Mississippi, this matter should continue in this State. Accordingly, for the reasons set for above, Appellees respectfully request that the Circuit Court's denial of Appellants/Defendants' Motion to Dismiss be affirmed. WHEREFORE, PREMISES CONSIDERED, based on the conflicts of issues considerations, and interpretation of the subject statute, Appellees/Plaintiffs respectfully request the Court to deny the relief sought by the Appellants/Defendants, Mid-America Shows Transportation, Inc.; North American Midway Entertainment-Amusement South, Inc. f/k/a Farrow Shows, Inc.; and North American Midway Entertainment, LLC. Appellees/Plaintiffs further pray any other relief, including, but not limited to, the cost of responding to this appeal. RESPECTFULLY SUBMITTED, this the 24th day of March, TOMMY w. MURRAY and KELLIE E. MURRAY BY: :/s/jared A. Kobs JARED A. KOBS, MSB NO

20 BENJAMIN N. PHILLEY, MSB NO ATTORNEYS FOR APPELLEES OF COUNSEL: KOBS & PHILLEY, PLLC Post Office Box 2230 Madison, Mississippi West Jackson Street Ridgeland, Mississippi Telephone: Facsimile: CERTIFICATE OF SERVICE I, Jared A. Kobs, attorney for Appellees, do hereby certify that I have this day caused a true and correct copy of the above and foregoing document to be served via ECF to all parties ofrecord. Honorable Winston L. Kidd Hinds County Circuit Court Post Office Box Jackson, Mississippi Keith Obert, Esq. ober!law@bellsouth.net William F. Brown, Esq. rbrown.law@gmail.com, oli~~_qrgia@gmail.com Hal Scot Spragins, Jr., Esq. hsl2.@gi_~_@hickmanlaw.com, cpinner@hickmanlaw.com THIS, the 24th day of March, :ls/jared A. Kobs ATTORNEY FOR APPELLEES -15-

21 CERTIFICATE OF FILING I, Jared A. Kobs, do hereby certify that I have on this date electronically filed the foregoing document with the clerk of Court using the MEC system and the foregoing document was served upon the following by , U.S. Mail, postage prepaid or via the court's electronic filing system: Kathy Gillis Supreme Court Clerk's Office Carroll Gartin Justice Building 450 High Street Jackson, Mississippi DATED: March 24, 2016 ://Jared A. Kobs ATTORNEY FOR APPELLEES -16-