Can a Mississippi town pay a homeowner for water-line damage after the one-year MTCA notice period has passed?

Plain-English summary

A water leak from the Town of Beaumont's water line allegedly damaged a homeowner's driveway in January 2019. The homeowner submitted a $9,200 repair estimate in February 2020 (more than a year later). The Mississippi Municipal Liability Plan denied the claim because the one-year MTCA notice period had passed. The mayor asked: can the Board of Aldermen pay anyway?

The AG answered with the framework, not a "yes" or "no":

The general rule (Mississippi Constitution Section 66): Municipalities cannot use public funds to improve private property: that's an unlawful donation. So a town can't just write a check to repair a homeowner's driveway as a friendly gesture.

The narrow exception: Section 25-1-47(2) allows a municipality to settle a "negotiated settlement of a claim or any judgment, fine, or penalty." The 2013 Logan opinion explains that filing a lawsuit isn't required, but the claim must be "bona fide and just," and the Board must make a factual finding that the municipality is "legally obligated."

The MTCA hurdle: Most municipal-liability claims fall within the Mississippi Tort Claims Act, which carries a one-year statute of limitations from the date of the conduct (Section 11-46-11(3)(a)). The 2015 Snowden opinion and the 2006 Ross Jr. opinion both hold that the limitations defense "cannot be waived," and the local body has a "duty to assert" it.

Putting it together: The opinion does not answer the mayor's question yes or no. It says "whether the MTCA applies and whether the claim is subject to applicable defenses, such as the statute of limitations, are questions of fact to be determined by the Board." It then explains the legal consequence of those determinations: a municipality "must take into consideration whether a statute of limitations has lapsed in order to determine whether a claim is exempt from liability and whether it is ultimately legally obligated for the claim." The 2015 Snowden footnote adds that if the MTCA applies, the limitations question "is a factual matter that requires a full development and understanding of the nature and timing of the actions causing the harm on the private property."

What this means for you

For mayors and boards of aldermen

The opinion lays out the framework rather than deciding for the Board. The general rule, from the Logan opinion, is that a municipality "may not use public funds, labor, or equipment to make improvements to private property because it would constitute an unlawful donation contrary to Section 66." A limited exception lets a municipality settle a property-damage claim under Section 25-1-47(2), but only where the Board "make[s] a factual finding that it is legally obligated for the claim and such claim is not exempt from liability in accordance with the MTCA." Because the running of the MTCA's limitations period "is a defense that cannot be waived," and the Board "has the duty to assert" it, the opinion says the Board "must take into consideration whether a statute of limitations has lapsed" in deciding whether the town is legally obligated.

For municipal attorneys

The opinion identifies the relevant pieces: Section 25-1-47(2) settlement authority, the Section 66 donation bar, the MTCA's one-year limitations period from "the date of the tortious, wrongful or otherwise actionable conduct" (Section 11-46-11(3)(a); Davis), and the 90-day pre-suit notice requirement (Section 11-46-11(1)-(2)). It treats whether the MTCA applies as "a determination that must be made by the local government based on the facts of the claim" (Sutton, 2016), and the limitations defense as one that "is not discretionary and may not be waived" (Ross, Jr., 2006).

For homeowners with municipal damage claims

The opinion describes, but does not adjudicate, the deadlines that bear on such claims: actions covered by the MTCA must be filed "within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct," and notice must be served on the entity's chief executive officer at least 90 days before suit. In the Beaumont facts, the leak occurred in January 2019 and the homeowner submitted a repair estimate in February 2020, more than a year later, and the Mississippi Municipal Liability Plan denied the claim on limitations grounds.

Common questions

Q: Can a Mississippi town pay a homeowner for water-line damage after the one-year period has passed?
A: The opinion does not give a flat yes or no. It says a municipality may settle a claim under Section 25-1-47 "as long as the governing authorities have determined that the municipality is legally obligated," but that "whether the MTCA applies and whether the claim is subject to applicable defenses, such as the statute of limitations, are questions of fact to be determined by the Board."

Q: Why can't the town just pay as a goodwill gesture?
A: Because of Section 66. The opinion explains that a municipality generally "may not use public funds . . . to make improvements to private property because it would constitute an unlawful donation contrary to Section 66," with settlement of a bona fide, legally owed claim as a limited exception.

Q: Can the Board choose to waive the limitations defense to help the homeowner?
A: No. The opinion states the MTCA limitations period "is a defense that cannot be waived," and that a local governing body "has the duty to assert applicable statute of limitations defenses," which "is not discretionary."

Q: Who decides whether the MTCA and its limitations defense apply?
A: The Board. The opinion quotes Sutton that "whether a claim is subject to defenses, including the applicability of the Tort Claims Act, is a determination that must be made by the local government based on the facts of the claim," and notes the limitations analysis is fact-intensive.

Q: What does Section 25-1-47 actually authorize?
A: The opinion quotes it as empowering a municipality, "within the discretion of its governing authorities, to pay and satisfy any negotiated settlement of a claim or any judgment, fine, or penalty." It notes that filing a lawsuit is not required, but the claim "must be bona fide and just" and the municipality must find it is legally obligated (Logan).

Background and statutory framework

The request came from the Mayor of Beaumont after a January 2019 water-line leak allegedly damaged a homeowner's driveway. The homeowner submitted a $9,200 repair estimate in February 2020, and the Mississippi Municipal Liability Plan denied the claim because the one-year MTCA notice period had passed. The mayor asked whether the Board could pay anyway.

The opinion sets the question against three authorities. Section 66 of the Constitution generally bars a municipality from donating public funds or improving private property at public expense. Section 25-1-47(2) is the limited exception: it lets a municipality settle a negotiated claim, but only one it is legally obligated to pay, and the opinion (citing Logan and Ross) requires the Board to find both that the town is legally obligated and that the claim is not exempt under the MTCA.

The MTCA itself imposes a one-year statute of limitations measured from "the date of the tortious, wrongful or otherwise actionable conduct" (Section 11-46-11(3)(a)), confirmed in Davis v. Singing River Health System, and a 90-day pre-suit notice requirement (Section 11-46-11(1)-(2)). The opinion ties these together by holding that the limitations defense cannot be waived (Snowden, Ross Jr.) and that the Board must weigh it in deciding whether the town is legally obligated, while leaving the underlying factual determinations to the Board.

Citations and references

Statutes:

• Miss. Code Ann. § 11-46-11, MTCA notice and statute of limitations
• Miss. Code Ann. § 25-1-47, municipal settlement authority

Mississippi Constitution:

• Miss. Const. art. 4, § 66, prohibition on donations of public funds

Cases cited:

• Davis v. Singing River Health Sys., 298 So. 3d 1042, 1044 (Miss. Ct. App. 2020), MTCA one-year limitations

Prior AG opinions cited:

• MS AG Op., Logan (Dec. 13, 2013), Section 66 ban; Section 25-1-47 settlement framework
• MS AG Op., Ross (Dec. 7, 2012), legal obligation and MTCA
• MS AG Op., Sutton (Apr. 22, 2016), MTCA applicability is local fact determination
• MS AG Op., Snowden (May 8, 2015), limitations defense non-waivable
• MS AG Op., Ross Jr. (Nov. 3, 2006), duty to assert limitations defense

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/03/S.Dailey-February-24-2022-Authority-of-Municipality-to-Pay-Homeowner-for-Damages-Purportedly-Caused-by-Municipal-Water-Line-Leak-After-One-Year-Has-Passed.pdf

Original opinion text

February 24, 2022

The Honorable Scotty L. Dailey
Mayor, Town of Beaumont
Post Office Box 605
Beaumont, Mississippi 39423

Re: Authority of Municipality to Pay Homeowner for Damages Purportedly Caused by Municipal Water Line Leak After One Year Has Passed

Dear Mayor Dailey:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, in January 2019, the Town of Beaumont's water system developed a leak in a water line, which purportedly caused damage to a homeowner's driveway. The homeowner submitted a repair estimate to the town in February 2020, in the amount of $9,200.00, plus tax, which the town then submitted to the town's insurance company. The insurer, Mississippi Municipal Liability Plan, denied the claim, stating that the one-year period to file a notice of claim under the Mississippi Tort Claims Act ("MTCA") had passed and, for this reason, the town was not liable.

Question Presented

Does the Town of Beaumont's Board of Aldermen (the "Board") have authority to pay the homeowner for the damage even though the one-year time period to file a notice of claim has passed?

Brief Response

As a general rule, municipalities may settle claims in accordance with Mississippi Code Annotated Section 25-1-47, as long as the governing authorities have determined that the municipality is legally obligated for the claim. However, whether the MTCA applies and whether the claim is subject to applicable defenses — such as the statute of limitations — are questions of fact to be determined by the Board.

Applicable Law and Discussion

Generally, a municipality may not use public funds, labor, or equipment to make improvements to private property because it would constitute an unlawful donation contrary to Section 66 of the Mississippi Constitution. MS AG Op., Logan at 1 (Dec. 13, 2013). One of the limited exceptions to this rule is when a claim is made against the municipality by a property owner for alleged damage. Id. at 1-2. In such instances, a municipality has the authority to settle the claim pursuant to Section 25-1-47(2), which provides:

Any municipality of this state is hereby authorized and empowered, within the discretion of its governing authorities, to pay and satisfy any negotiated settlement of a claim or any judgment, fine, or penalty which may be made, assessed, or levied by any court against any municipal agent, officer, servant, employee, or appointee as a result of any actions of such municipal agent, officer, servant, employee, or appointee while acting as such.

We have opined that the filing of a lawsuit is not required to trigger a municipality's authority to settle a claim, but the claim must be bona fide and just. Logan at 2. Additionally, the municipality must make a factual finding that it is legally obligated for the claim and such claim is not exempt from liability in accordance with the MTCA. Logan at 2; MS AG Op., Ross at *2 (Dec. 7, 2012).

Claims that fall within the scope of the MTCA are subject to a one-year statute of limitations. Miss. Code Ann. § 11-46-11(3)(a); Davis v. Singing River Health Sys., 298 So. 3d 1042, 1044 (Miss. Ct. App.), reh'g denied (June 9, 2020), cert. denied, 299 So. 3d 796 (Miss. 2020) ("Section 11-46-11(3)(a) requires that all actions against public institutions or entities protected under the Act be filed 'within one (1) year next after the date of the tortious, wrongful or otherwise actionable conduct . . . .'"). Before a claim can be filed, notice of the claim must be served upon the chief executive officer of the entity being sued, at least 90 days prior to such filing. Miss. Code Ann. § 11-46-11(1)–(2).

"Whether a claim is subject to defenses, including the applicability of the Tort Claims Act, is a determination that must be made by the local government based on the facts of the claim." MS AG Op., Sutton at 3 (Apr. 22, 2016). The running of the statute of limitations under the MTCA is a defense that cannot be waived. MS AG Op., Snowden at 2 (May 8, 2015). We have previously stated that a local governing body "has the duty to assert applicable statute of limitations defenses" and "the assertion of such a defense is not discretionary and may not be waived." MS AG Op., Ross, Jr. at *1 (Nov. 3, 2006). Therefore, a municipality must take into consideration whether a statute of limitations has lapsed in order to determine whether a claim is exempt from liability and whether it is ultimately legally obligated for the claim.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Misty Monroe
Misty Monroe
Special Assistant Attorney General

Footnote: If the MTCA applies, the applicability of the statute of limitations defense under the Act is a factual matter that requires "a full development and understanding of the nature and timing of the actions causing the harm on the private property." MS AG Op., Snowden at *2 (May 8, 2015).