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A MATTER OF TIME

A MATTER OF TIME

A MATTER OF TIME
September 28
07:28 2021

A matter of time

Jaswinder Kaur, Harvinder Singh, Karanveer Kamboj, and Gurdev Kamboj were occupants of a vehicle that was involved in a collision with a vehicle operated by Mary Orebo and owned by Cassandra Mann.

The plaintiffs’ vehicle had uninsured motorist coverage provided by Progressive Gulf Insurance Company. Each plaintiff filed a separate suit against Orebo, Mann, and Progressive on the eve of the expiration of the three-year statute of limitations. The suits were filed on March 20, 2019, and, in each case, motions for an extension of time to serve process were filed on July 17, 2019.

The motions for an extension of time asserted that Orebo and Mann gave a false address, and that once their true address was discovered an alias summons would have to be issued.

The orders that granted the motions were entered July 29, 2019, and August 8, 2019 (in two cases), and August 12, 2019, in the case of Gurdev Kamboj. Progressive was served in all four cases on December 9, 2019.

Progressive filed four separate motions to dismiss. The motions as to Kaur, Singh, and Karanveer Kamboj contended that the complaints should have been dismissed under Mississippi Rule of Civil Procedure 4(h) because those three plaintiffs had served process outside the 120-day extensions and could not show “good cause” for their failure to serve Progressive on time. The motion to dismiss the complaint of Gurdev Kamboj, who did serve process within 120 days of the entry of the extension order in his case, contended that he did not establish “cause” for the 120-day extension of time. The circuit court consolidated the suits and denied all four motions to dismiss with a single order.

On appeal, Progressive identified two issues: whether the trial court erroneously denied Progressive’s three unopposed motions to dismiss the complaints of Kaur, Singh, and Karanveer Kamboj, and whether the trial court erred by finding cause to enlarge the time for Gurdev Kamboj to serve process on Progressive.

Progressive pointed out that Kaur, Singh, and Karanveer Kamboj did not serve it with process within 120 days after the trial court’s order granting them 120-day extensions. No further extension of time was requested. None of the three plaintiffs responded to Progressive’s motions to dismiss. The trial court denied all four motions to dismiss with one order that did not distinguish among the cases.

Mississippi Rule of Civil Procedure 4(h) mandates that a complaint be dismissed if service process is not effected within 120 days of the filing of the complaint and good cause cannot be shown for failure to do so.

The three plaintiffs conceded that “after multiple counts, by multiple counters,” Progressive was correct that the trial court erred by not dismissing their complaints.

The trial judge was permitted to make the logical inference that Gurdev Kamboj did not serve his uninsured motorist carrier because he was still trying to locate the other driver, whose insurance status would determine whether he should proceed against Progressive. Gurdev Kamboj’s motion thus provided both a showing of diligence and a reason for not serving Progressive. There was no suggestion of bad faith or prejudice, so the motion should have been granted presumptively. The state supreme court affirmed the trial court’s refusal to dismiss Gurdev Kamboj’s complaint.

Affirmed in part and remanded in part.

Progressive Gulf Insurance Company v. Kaur, Singh, Kamboj, and Kamboj—Mississippi Supreme Court—August 12, 2021—No. 2020-IA-00443-SCT.

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