Opinion
No. 108,224.
2013-11-4
Marvin LAWSON, Appellant, v. RYDER TRUCK RENTAL, INC., et al., (Morgan Truck Body, LLC), Appellees.
Appeal from Johnson District Court; Thomas M. Sutherland, Judge. Victor B. Finkelstein and James M. Roswold, of Kansas City Accident Injury Attorneys, of Kansas City, Missouri, for appellant. John F. Wilcox, Jr., of Dysart Taylor Cotter McMonigle & Montemore, P.C., Kansas City, Missouri, for appellee Morgan Truck Body, LLC.
Appeal from Johnson District Court; Thomas M. Sutherland, Judge.
Victor B. Finkelstein and James M. Roswold, of Kansas City Accident Injury Attorneys, of Kansas City, Missouri, for appellant. John F. Wilcox, Jr., of Dysart Taylor Cotter McMonigle & Montemore, P.C., Kansas City, Missouri, for appellee Morgan Truck Body, LLC.
Before PIERRON, P.J., BRUNS and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Marvin Lawson filed a negligence lawsuit against Ryder Truck Rental, Inc., (Ryder) and Maxon Lift Corporation (Maxon) for injuries sustained during operation of a lift gate on the back of a Ryder truck. After the lift gate broke, a large reel of fiber optic cable fell from the truck. Lawson claimed he sustained injuries while rolling the reel to its intended delivery location. Later, Lawson filed several amended petitions adding Morgan Truck Body, LLC, as a defendant. The district court granted summary judgment in favor of Morgan, finding that Lawson's claim against Morgan was barred by the 2–year statute of limitations. We find summary judgment was properly granted to Morgan.
Lawson was employed as a delivery truck driver for Embarq Logistics (Embarq). He drove a Freightliner straight truck equipped with a lift gate manufactured by Maxon. The truck body was manufactured by Morgan, and it is undisputed that Morgan installed the Maxon lift gate on the back of the truck. Embarq leased the truck from Ryder.
Lawson's delivery schedule on November 7, 2007, included a large reel of cable, weighing approximately 2,800 pounds. As Lawson attempted to lower the cable from the truck, the lift gate dropped, causing the reel to roll off the lift gate and across the parking lot. Lawson then manually rolled the reel of cable to its delivery destination. Lawson continued with his deliveries the rest of the day. Back at Embarq's office, Lawson took pictures of the truck and the broken lift gate. The pictures show Morgan's logo on the back of the truck.
In March 2008, Lawson hired an attorney to pursue a workers compensation claim and to investigate and pursue any third-party claims. Lawson alleged his injuries on November 7, 2007, resulted in his need for surgery to the cervical and lumbar sections of his spine and also nerve surgery on one of his arms. Lawson gave the pictures of the lift gate to his attorney in November 2008. While Lawson's workers compensation claim worked through the system, Embarq decided in the spring of 2009 that it was not interested in pursuing a subrogation claim involving any third-parties.
Even though Lawson's counsel had the photographs of the truck, lift gate, and Morgan logo, it is undisputed that Lawson's counsel did not contact Morgan, research Morgan, hire an investigator, contact Ryder about the lift gate, or physically see the truck and lift gate between March 14, 2008, and the filing of the lawsuit in November 2009. However, Lawson's counsel researched Maxon lift gates on the Internet. In October 2009, Embarq informed Lawson's counsel that it did not have access to the maintenance records for the truck or lift gate and to contact Ryder.
On November 6, 2009, Lawson filed a petition for damages against Ryder and Maxon for injuries resulting from the accident on November 7, 2007. Lawson alleged that Ryder was negligent in failing to properly install, maintain, and repair the lift gate on the truck. Lawson alleged that Maxon failed to design the lift gate in such a way that it was reasonably safe to operate, failed to adequately warn of the dangers inherent in the use of the lift gate, failed to provide adequate instructions for proper operation, and that the lift gate was defective and not fit for its intended use.
Lawson claimed that neither he nor his counsel learned of Morgan's potential culpability until the deposition of Ryder's representative on December 10, 2010, wherein they discovered that Morgan had actually installed the lift gate. Ryder's representative also testified that during its subsequent repair of the truck, they determined that Morgan failed to properly install the Maxon lift gate. On January 27, 2011, Lawson filed his third amended petition adding Morgan as a defendant. Lawson later filed a fourth amended petition on March 29, 2011. Lawson alleged that Morgan negligently installed the lift gate on the truck. Among other defenses, Morgan argued Lawson's claim was barred by the 2–year statute of limitations in K.S.A. 60–513.
On April 16, 2012, the district court granted two summary judgment motions. First, the court granted summary judgment to Embarq—now known as KGP Logistics, Inc., (KGP)—finding that the lease agreement did not require KGP to indemnify Ryder in actions by KGP's employees against Ryder for personal injuries resulting from the maintenance of the vehicle. Second, the court granted summary judgment to Ryder finding Ryder had taken steps to maintain the vehicle and the lift gate malfunctioned because it was improperly welded to the vehicle by another party. The court stated that because Ryder did not install the lift gate, Ryder did not cause the lift gate to malfunction and injure Lawson. Also, there was no evidence that appropriate maintenance or repair of the lift gate would have revealed the absence of welds that caused the lift gate to fail.
Two weeks later, the district court granted summary judgment to Morgan as well. The court found the most compelling fact to be that neither Lawson nor his attorney directly contacted Morgan to inquire about its involvement with the truck or lift gate until after Morgan was added to the action over 3 years after Lawson's injury. In a lengthy and thorough journal entry, the district court determined that Lawson's injury was reasonably ascertainable more than 2 years prior to the filing of the amended petition adding Morgan as a defendant. The court found Lawson's injury and the mechanism of injury was known immediately following the accident and there was no evidence of misrepresentation, concealment, or omission by Morgan that delayed Lawson's determination that Morgan installed the lift gate. Lawson had all the information necessary to determine Morgan's negligence on the date of the injury.
Lawson filed a timely appeal.
The well-known standard governing summary judgments applies at both the trial and appellate levels. Summary judgment is appropriate only where the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012). All facts and inferences that may reasonably be drawn from the evidence must be resolved in favor of the party against whom the ruling is sought—meaning Lawson here. Nonetheless, any factual disputes must be material to the conclusive issues in the case to avoid summary judgment. 294 Kan. at 330. As the party asserting the affirmative defense of statute of limitations, Embarq bore the burden of pleading and proving its applicability. See Admire Bank & Trust v. City of Emporia, 250 Kan. 688, 693, 829 P.2d 578 (1992). If reasonable minds could differ as to the conclusions drawn from undisputed material facts, then summary judgment is inappropriate. O'Brien, 294 Kan. at 330.
First, Lawson argues the district court misinterpreted K.S.A. 60–513 by effectively holding that as a matter of law the statute of limitations began to run on the date of his injury and ignored the statute's discovery provisions. Lawson argues the court confused the issue of when the statute of limitations begins to run and when it is tolled. Lawson does not argue that Morgan itself has done anything to toll the statute of limitations. Lawson claims the statute of limitations did not begin to run until he had actual knowledge of all relevant facts to initiate a legal action to recover for his personal injury. He argues the “fact of injury” analysis creates an objective test as to what a potential plaintiff could have discovered with reasonably diligence.
Lawson argues there were genuine issues of material fact that precluded summary judgment. He cites Hecht v. First National Bank & Trust Co., 208 Kan. 84, 93, 490 P.2d 649 (1971), stating that “[w]here the evidence is in dispute as to when substantial injury first appears or when it becomes reasonably ascertainable, the issue is for determination by the trier of fact.” Lawson contends his discovery of Morgan's involvement and whether the injury of fact was reasonably ascertainable is a fact question for the jury. Lawson concedes he knew the lift gate had malfunctioned on the date of the accident, but the date on which he reasonably knew, or could reasonably ascertain, that the cause of the malfunction was negligence and the identity of the negligent party was hotly contested. Lawson argues there were any number of potential causes for the malfunction and they had to be investigated before he could establish a theory and the culpable defendants.
Lawson takes issue with the district court's finding that he knew at least by November 6, 2009, that the lift gate was negligently installed because the original petition alleged that Ryder negligently installed the lift gate. He argues the claim was plead in the alternative, but if the court used November 6, 2009, as the commencement date of the statute of limitations, then he had until November 2011 to add Morgan as a defendant. Morgan was added in the third amended petition in January 2011. Lawson contends the court made improper factual findings as to Morgan's involvement with the truck, whether truck body manufacturers usually install lift gates, and proper investigation of the lift gate.
K.S.A. 60–513 sets a 2–year statute of limitations to bring actions for injuries to the rights of another. K.S.A. 60–513(b) tolls the statute of limitations when certain factors are present:
“Except as provided in subsections (c) and (d), the causes of action listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.”
Lawson relies on Gilger v. Lee Constr., Inc., 14 Kan.App.2d 679, 798 P.2d 495 (1990), aff'd in part249 Kan. 307, 820 P.2d 390 (1991). In Gilger, the plaintiffs suffered numerous health problems caused by an improperly vented furnace. The plaintiffs unsuccessfully sought out the cause of their ailments for 3 years before learning that the furnace was improperly installed. Plaintiffs investigated a number of avenues in their search for the source of their recurring illnesses. They had the furnace checked for gas leaks, increased ventilation in the room at the direction of an inspector, and removed a bird's nest from the flue. When their health problems did not subside, plaintiffs had the furnace inspected twice more. It was not until an inspection in 1985 that plaintiffs learned the furnace had been improperly installed. The Kansas Supreme Court reversed a motion for summary judgment in favor of the defendants:
“Here, the appellants knew they were ill long before the suit was filed. They suspected carbon monoxide gas poisoning; however, there were differing medical opinions on the cause of their illnesses. Injury and damages alone are not sufficient for the accrual of a negligence action. Establishing when the facts of injury were reasonably ascertainable is an essential element in determining when a tort action accrued. In this case, the evidence is controverted as to when the injury was reasonably ascertainable and when the cause of the injury was determined. If we accept Kathryn McGraw's testimony as true, as we must for purposes of summary judgment, then the determination of the cause of the injury was made on November 24, 1985.
“In light of the foregoing, we hold summary judgment was improper. The issue of when the appellants reasonably ascertained they suffered substantial injuries caused by appellees' negligence is a material question of fact which should be resolved by the jury.” 249 Kan. at 322.
Lawson argues the district court improperly distinguishes Gilger. Lawson argues the district court's interpretation of Gilger does not relate to the issue of when, as a matter of law, the statutory period begins to run, but rather how the Gilger court erred in granting summary judgment because there were factual issues to be determined by the jury. Lawson relies on the following highlighted language in the Court of Appeals' decision in Gilger.
“We have been unable to uncover a Kansas decision which holds that the knowledge of the fact of injury alone was held to trigger the running of the statute of limitations. There are cases such as Roe and Friends where the language employed in the opinion would, if taken out of context, support that proposition. Those cases must be read in the light of the facts which underlie the decisions. In those decisions in which the plaintiff was aware of an injury or illness, but was unaware of who or what caused the problem, ascertainment of the ‘fact of injury’ was not held to occur until the plaintiff could identify the cause of the problem and file suit against an identifiable defendant.” (Emphasis added.) 14 Kan.App.2d at 685–86.
The decisions in Roe v. Diefendorf, 236 Kan. 218, 689 P.2d 855 (1984), and Friends University v. W.R. Grace & Co., 227 Kan. 559, 608 P.2d 936 (1980), are relevant here. In Friends, the plaintiff brought an action against the manufacturer of roofing material used to roof the college's new library. The roof of the library was complete in 1969, and in 1970 it began to leak with every rainfall. In April 1975, the college learned the defendant's failure to bond the roofing material to the substructure was the cause of leaking. The plaintiffs action was not filed until March 1977.
The Friends court determined the plaintiff's failure to know the exact scientific nature of the problem did not toll the commencement of the statute of limitations where it was clearly apparent there was a severe problem with the roof caused by defective design, materials, or workmanship in 1970. 227 Kan. at 563. We find a portion of the language in Friends is particularly relevant: “In the case before us a new roof on a new building was leaking. The cause had to be defective design, materials, workmanship, or some combination thereof. At any time Friends could easily have obtained an expert opinion on the precise cause or causes for the leaking roof.” 227 Kan. at 565.
In Roe, the plaintiff was injured in an automobile accident negligently caused by defendant on November 14, 1979. In February 1981, the plaintiff reinjured his back and brought an action against the defendant on June 28, 1982. The plaintiff argued the statute of limitations did not commence running until February 1981, when he realized the full extent of his injuries sustained in the automobile accident. The Roe court held otherwise, finding that an action accrues when the victim has a sufficient ascertainable injury to justify an action for damages, regardless of the extent of the injury. 236 Kan. at 222.
The plaintiffs in Friends and Roe are quite similar to Lawson. In Friends and Roe, the party or parties whose negligence caused the injuries were immediately known and the injuries were ascertainable within a short period of time. The Gilger court stated: “ Roe and Friends both stand for the proposition that the statute of limitations begins to run at the time both the fact of injury and the cause of injury are reasonably ascertainable.” 14 Kan.App.2d at 685. In the present case, Lawson knew he was injured when the lift gate broke and he knew the broken lift gate was the cause of his injuries. In the language of Friends, Lawson did not know the “scientific nature of the problem,” but he knew the lift gate broke, and caused his resulting injuries. Lawson claims the nature of the problem—defective welding by Morgan—was not reasonably ascertainable until the deposition of Ryder's representatives in December 2010. We disagree.
Morgan's culpability was reasonably ascertainable after Lawson's injury, and the facts demonstrate that summary judgment can be granted in this case.
“The ‘reasonably ascertainable’ standard is objective. A plaintiff need not possess actual knowledge of an injury and its wrongful cause before the limitations period commences. Instead, the standard implies a duty to implement a reasonable investigation into the cause of the injury based upon the information available to the plaintiff.” [Citations omitted.] Bonura v. Sifers, 39 Kan.App.2d 617, 662, 181 P.3d 1277,rev. denied 286 Kan. 1176 (2008).
In the context of a wrongful death case and the running of the statute of limitations in K.S.A. 60–513, the court in Davidson v. Denning, 259 Kan. 659, 675, 678–79, 914 P.2d 936(1996), stated:
“K.S.A. 60–513(b) and (c) provide that the limitations period starts when the ‘fact of injury’ becomes ‘reasonably ascertainable.’ Inherent in ‘to ascertain’ is ‘to investigate.’....
....
“ ‘Reasonably ascertainable’ does not mean ‘actual knowledge.’....
....
“The discovery rule, as codified at K.S.A. 60–513(b) and (c), states that the limitations period starts when the ‘fact of injury’ is ‘reasonably ascertainable.’ The phrase ‘reasonably ascertainable’ means that a plaintiff has the obligation to reasonably investigate available sources that contain the facts of the death and its wrongful causation.”
The Davidson court stated that the discovery rule discussed in the opinion has been applied in nonmedical malpractice personal injury cases as well, such as Gilger. 259 Kan. at 672. The Gilger court gave direction into establishing the “fact of injury”:
“The term ‘fact of injury’ is a term of art and has not been interpreted literally by the courts of this state. There are a number of cases where the plaintiffs knew that something was wrong or knew that there was an injury, but did not know what caused that injury. In those cases, the Kansas courts have interpreted the term ‘fact of injury’ to be that point in time when a plaintiff knew or should have known he had an injury caused by the negligence of the defendant.” 14 Kan.App.2d at 683.
The plaintiff's expert, Nathan Morrill, did not examine the truck until June 9, 2011. Yet, the delivery truck had Morgan logos on the truck body. A metal plate indicating Morgan as the manufacturer and relevant dates was riveted to the driver side of the truck body. It is undisputed that Lawson's counsel had photographs clearly depicting the Morgan logo on the back of the truck. Lawson acknowledges the Morgan placards on the truck but points out the placards were nowhere on the lift gate. He argues he did not learn of Morgan's involvement until Ryder's response to the request for production. He argues it is unrealistic to believe that if he had called Morgan, it would have simply volunteered the information that it installed the lift gate and subject itself to potential tort liability. Still, Lawson argues the objective test of the “fact of injury” is a question of fact and one for determination by the trier of fact.
As in Davidson, all the facts existed at the time of Lawson's injury to make a determination of negligence and the culpable parties. Even Lawson's late-obtained expert opinion confirmed this. Morrill stated it was clear it was a Morgan truck body because of the Morgan's stickers on the truck. He also stated that lift gates are generally installed by the truck body manufacturers. In Morrill's expert report, it was his opinion that Morgan's failure to properly install and weld the lift gate caused it to drop. There is no evidence in the record that Lawson or his counsel made any investigation of Morgan or anything that could be considered a reasonable investigation of Morgan. Additionally, it is also undisputed that Morgan did not take any action that could be considered concealing, altering, falsifying, providing inaccurate information, or misrepresentation. Compare Cleveland v. Wong, 237 Kan. 410, 710 P.2d 1301 (1985) (physician assured plaintiff the conditions were an expected following surgery and only temporary); Hecht, 208 Kan. 82 (physicians assured plaintiff that skin condition was normal result of treatment).
Lawson had an obligation to reasonably investigate available sources to determine the fact of injury and its wrongful causation. Lawson failed to do so. Morgan cites the Tenth Circuit Court of Appeal's opinion in Benne v. International Business Machines Corp., 87 F.3d 419 (10th Cir., 1996)—a torts case alleging the defective design of a computer keyboard as causing carpal tunnel syndrome. The Benne court stated:
“We do not believe that the Kansas Supreme Court intended to establish the rule that a plaintiff could be fully aware of the cause of her injury, yet wait to bring a claim based upon negligent design some indeterminate time later when the plaintiff develops the thought that the defendant may have been negligent. Rather we believe the rule from Hecht is intended to give plaintiffs who suffer from latent or difficult to diagnose injuries the same advantages as those plaintiffs whose injuries are immediately connectible to their source.” 87 F.3d at 426–27.
We concur in the district court's decision here that the case was ripe for summary judgment and Morgan was entitled to judgment as a matter of law. The fact of Lawson's injury was reasonably ascertainable more than 2 years prior to the filing of his amended petition adding Morgan to the lawsuit. Lawson's injury and the cause of the injury, termed the “mechanism of injury” by the court, was known immediately. Lawson was not lulled into somehow believing the lift gate did not cause his injuries. He was not mislead as to the entity that installed the lift gate. We agree with the district court's statement that “all of the information the plaintiff needed to make the connection between Morgan and the lift gate was available as of the date of the injury.” Lawson and his attorney failed to take measures to reasonably ascertain this connection. Under the facts of this case, we make this conclusion as a matter of law and do not need to resort to a factual determination by a trier of fact.
Lawson also argues the district court erred by improperly disregarding his affidavit executed on April 9, 2012, and the affidavit of Mark Schmid executed on April 11, 2012. Both affidavits were filed in Lawson's response to the motion for summary judgment. Lawson states that Schmid's affidavit established what efforts had been made on his behalf early in the case to determine what happened, who might be legally responsible for his damages, and when the fact of injury was reasonably ascertainable. Lawson surmises that the district court's “keen interest” in what investigation the plaintiffs counsel performed was “more than just academic curiosity” and demonstrated how the court was delving into factual issues best left for the jury.
The district court disregarded Schmid's and Lawson's affidavits because the amount of investigation the plaintiff's counsel had performed concerning the lift gate failure was the source of considerable proceedings before the court. The court found that Morgan propounded a specific interrogatory to the plaintiffs concerning all investigation performed by plaintiff's counsel on why the lift gate suddenly fell and any entities involved in the manufacture, installation, and maintenance of the lift gate. The interrogatories answers specifically cite an affidavit of Schmid prepared on January 4, 2012. In response the summary judgment motion, that plaintiff's counsel utilized an affidavit prepared by Schmid on April 11, 2012. The district court stated: “To so strongly resist discovery into what investigation plaintiff's counsel had engaged in, and then turn around and resist a summary judgment using an affidavit from plaintiff's counsel stating what investigation he had engaged in is clearly improper.” Additionally, the court found that even if it considered the facts in the affidavits filed after filing of the summary judgment motion, the additional facts alleged were not material and did not preclude summary judgment.
We have considered two cases with similar, but not equal, situations. In Mays v. Ciba–Geigy Corp., 233 Kan. 38, 661 P.2d 348 (1983), the court considered a motion to strike portions of three affidavits attached to the plaintiff's memorandum in opposition to the defendants' motions for summary judgment. The affidavits contradicted prior deposition testimony and were filed in direct response to the filing of summary judgment motions. In those circumstances, the Mays court concluded the trial court had properly struck the disputed affidavits. 233 Kan. at 47.
In Powell v. City of Haysville, 203 Kan. 543, 455 P.2d 528 (1969), the defendant was granted summary judgment in an action for personal injuries. The plaintiff moved to set aside the judgment. In so moving, the plaintiff filed an affidavit that was at odds with his, and his doctor's, prior deposition testimony. In affirming the lower court's summary judgment for defendant, the Powell court stated:
“Plaintiff asserts that his affidavit filed in support of his motion to set aside the summary judgment creates a fact question in that he denied he was told of a connection between his lung condition and his work with lime, alum and chlorine. The effect of his affidavit is an attempt to impeach the testimony of his own doctor. Further, plaintiffs own testimony conclusively shows that he knew his exposure to dust, under the conditions he related, adversely affected his condition and caused the severe attack in 1965.
“Except under conditions not prevailing here, plaintiff may not by his subsequent affidavit impeach his previous testimony upon deposition or the testimony of his attending physician and sole medical expert. [Citations omitted.] 203 Kan. at 549.
The crux of the district court's problem with Lawson's affidavits submitted with his summary judgment response was that they conflicted, or improperly supplemented, the information specifically requested by Morgan in prior interrogatories. “ ‘An affidavit cannot be used to controvert a prior sworn statement in order to create an issue of material fact and defeat a motion for summary judgment.’ Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 314, 756 P.2d 416 (1988); Mays, .” Bird v. Kansas Dept. of Transportation, 23 Kan.App.2d 164, 169, 928 P.2d 915 (1996). We find no abuse of discretion in the district court's decision.
Affirmed.