ROBERT F. REESE and JOANN REESE v. GENERAL AMERICAN DOOR COMPANY
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RENDERED: November 25, 1998; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-000238-MR
ROBERT F. REESE and
JOANN REESE
APPELLANTS
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DOUGLAS M. STEPHENS, JUDGE
ACTION NO. 95-CI-001702
v.
GENERAL AMERICAN DOOR
COMPANY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
ABRAMSON, DYCHE, and HUDDLESTON, Judges.
ABRAMSON, JUDGE1:
Robert and Joann Reese appeal from a January
9, 1997, order of Kenton Circuit Court making final and
appealable its November 14, 1996, summary judgment dismissing the
Reeses’ products liability complaint against General American
Door Company (GADCO) on statute of limitations grounds.
Agreeing
with the trial court both that this matter is ripe for appeal2
1
This opinion was prepared and concurred in prior to the
departure of Judge Abramson from the Court on November 22, 1998.
2
The trial court’s order of January 9, 1997, satisfied the
(continued...)
and that the Reeses’ claim against GADCO is time barred, we
affirm.
In 1989 the Reeses purchased an automatic garage door
from Overhead Door of Covington, Inc.
On April 17, 1994, as he
was attempting to repair the door, Robert Reese suffered a
serious injury when part of the door’s high-tension spring
mechanism suddenly came loose and struck him in the eye.
On
April 17, 1995, the last day to file suit given Kentucky’s oneyear limitations period for personal injury lawsuits (KRS
413.140), the Reeses filed suit in federal court against Overhead
Door of Covington, Inc. and an affiliated company, Overhead Door
Corporation.
The complaint alleged that Overhead Door
Corporation had supplied the door and that Overhead Door of
Covington had sold it to the Reeses and installed it.
The
Reeses’ federal suit was dismissed for incomplete diversity of
citizenship among the parties, and on September 29, 1995, within
90 days of the dismissal, the Reeses filed in Kenton Circuit
Court an amended complaint seeking to add GADCO as a defendant
and alleging that GADCO had manufactured the door.
Maintaining
that it had not been sued within the limitations period, GADCO
successfully moved for summary judgment.
On appeal, the Reeses contend that their amended
complaint against GADCO should have been deemed timely pursuant
to CR 15.03, which allows in some circumstances amended
2
(...continued)
requirements for finality of CR 54.02, and because all the other
defendants have since been dismissed no question remains as to
the propriety of the trial court’s finality determination. Hale
v. Deaton, Ky., 528 S.W.2d 719 (1975).
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complaints to be treated as though filed at the time of the
original complaint.
There is no dispute concerning any material
fact and the legal question before this Court is simply whether
the trial court correctly determined that CR 15.03 does not reach
the circumstances presented by the Reeses.
of a summary judgment is de novo.
This Court’s review
Steelvest, Inc. v. Scansteel
Service Ctr., Ky., 807 S.W.2d 476 (1991).
CR 15.03, Relation Back of Amendments, provides in
pertinent part as follows:
(1) Whenever the claim or defense asserted in
the amended pleading arose out of the
conduct, transaction, or occurrence set forth
or attempted to be set forth in the original
pleading, the amendment relates back to the
date of the original pleading.
(2) An amendment changing the party against
whom a claim is asserted relates back if the
condition of paragraph (1) is satisfied and,
within the period provided by law for
commencing the action against him, the party
to be brought in by amendment (a) has
received such notice of the institution of
the action that he will not be prejudiced in
maintaining his defense on the merits, and
(b) knew or should have known that, but for a
mistake concerning the identity of the proper
party, the action would have been brought
against him.
It is apparent that section (1) of this rule is
satisfied.
The parties have focused their attention on section
(2)(a), the requirement that GADCO receive notice of the action
within the limitations period.
Since there is no question that
GADCO did not seasonably receive actual notice, the controversy
has centered on whether the notice to Overhead Door of Covington
should be imputed to GADCO.
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In a series of cases (Clark v. Young, Ky. App., 692
S.W.2d 285 (1985), Funk v. Wagner Machinery, Inc., Ky. App., 710
S.W.2d 860 (1986), and Halderman v. Sanderson Forklifts Co., Ky.
App., 818 S.W.2d 270 (1991)) different panels of this Court have
endorsed the idea that notice to an original party may be imputed
to a party sought to be added by amendment whenever “there is a
sufficient identity of interest” between the two.
supra, at 273.
Halderman,
The relationship deemed sufficient in Halderman
was that between parent and subsidiary corporations:
the subsidiary was imputed to the parent.
lessee was imputed to the lessor.
notice to
In Clark, notice to a
In Funk, notice to a sales
agent was imputed to the principal/manufacturer.
Both the Clark
and Funk Courts emphasized that the close, ongoing business
relationship between the original and added defendants strongly
suggested that the added party had in fact received notice within
the limitations period, but the Halderman Court rejected any such
qualification and held that “the notice requirement of CR
15.03(2) is satisfied whenever the intended defendant receives
notice, be it actual, informal, imputed, constructive or a
combination thereof, within the limitations period.”
818 S.W.2d
at 273.
Unlike the cases just cited, this case does not involve
a contractual or corporate relationship between Overhead Door of
Covington and GADCO.
The Reeses assert, however, that at the
time of the complaint Overhead Door of Covington had sold and
installed as many as 200 GADCO doors per year for about 20 years.
The Reeses maintain that under the Halderman rationale this
longstanding and extensive sales relationship evidences a
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sufficient identity of interests between the two companies to
justify imputing Overhead Door of Covington’s notice to GADCO.
We disagree.
In the three cases cited above, legally binding
relationships between the original and added parties imposed on
the first-named party a duty promptly to apprise the other laternamed entity of the lawsuit.
Furthermore, there were grounds in
those cases for believing that preparations to defend the firstnamed party would be available and useful to the other party as
well.
The Clark Court noted, for example, that both the original
and added parties shared counsel.
Here, however, Overhead Door
of Covington was under no duty to tell GADCO about the Reeses’
lawsuit, and the relationship between the two companies, though
an ongoing one, was not such that prompt notice of the suit can
otherwise be presumed.
Nor is it at all indicated that Overhead
Door of Covington and GADCO shared interests such that the
defense of the former would naturally extend to a defense of the
latter.
We are unwilling to extend the rule of Halderman to a
relationship, such as that between Overhead Door of Covington and
GADCO, which does not include any assurance that the original
notice was apt to be promptly forwarded to the subsequently named
party.
Notice is not to be presumed where there is no basis for
the presumption.
We are persuaded, moreover, although the issue received
little comment in the parties’ briefs, that also unsatisfied in
this case was the additional notice requirement under part (2)(b)
of CR 15.03.
CR 15.03 (2)(b) requires that the party to be added
“knew or should have known that, but for a mistake concerning the
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identity of the proper party, the action would have been brought
against him.”
Limitations statutes are by nature arbitrary and
so sometimes seem to operate harshly.
This harshness, of course,
does not authorize courts to disregard the strict duties such
statutes impose.
On the contrary, the statutory duty to develop
and file one’s case diligently has been interpreted as absolute
except in the most compelling of circumstances.
On constitu-
tional grounds, for example, our courts have articulated the so
called “discovery rule” whereby the duty imposed by limitations
statutes has been held not to arise until the plaintiff discovers
or should have discovered sufficient facts to be aware of a
potential cause of action.
[I]n the circumstances presented [a latent
disease case] the statute of limitations
commences from the date the plaintiff knew or
should have discovered “not only that he has
been injured but also that his injury may
have been caused by the defendant’s conduct.”
Perkins v. Northeastern Log Homes, Ky., 808 S.W.2d 809, 819
(1991) (quoting from Louisville Trust Co. v. Johns-Manville
Products, Ky., 580 S.W.2d 497 (1979)); see also Underhill v.
Stephenson, Ky., 756 S.W.2d 459 (1988) (holding in a medical
malpractice case that a potential cause of action against a nurse
based on her alleged fraud had not accrued until her fraud had
been discovered).
In the products liability context, a potential
plaintiff’s awareness of an injury and of the instrumentality
causing the injury is enough to trigger the limitations clock and
to impose on the plaintiff the duty to discover the responsible
parties.
Hazel v. General Motors Corp., 863 F.Supp. 435 (W.D.Ky.
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1994).
Thereafter, the running of the limitations period may be
tolled only to permit the plaintiff to overcome certain
disabilities (KRS 413.170, 413.180) or, under the doctrine of
equitable estoppel, to prevent potential defendants from
improperly delaying commencement of the suit.
Absent
extraordinary circumstances such as these, the plaintiff’s mere
failure to locate or identify potential defendants does not
excuse his or her untimeliness.
McCollum v. Sisters of Charity,
Ky., 799 S.W.2d 15 (1990); Simmons v. South Central Skyworkers,
Inc., 936 F.2d 268 (6th Cir. 1991).
CR 15.03 may not operate so as to contravene these
rules.
Although none of the cases in the Halderman line
addresses in depth the requirement of an apparent, justifiable
mistake under part (2)(b) of CR 15.03, the issue was alluded to
in both Clark and Funk.
The Clark Court noted that the
plaintiff’s initial failure to look beyond the lessee was due in
large part to the fact that not only was the lessor not
identified either on the leased truck involved in the accident or
by its driver, but a name tag on the truck, which might
reasonably have been supposed to identify the owner (and was so
understood by the plaintiff), named the lessee instead.
In Funk,
the Court noted the confusing similarity in the names of the
party first sued, the sales agent, and the one later sought to be
added, the manufacturer.
Here, the Reeses make no claim that their failure to
sue GADCO within the limitations period or their suing Overhead
Door of Covington instead involved a mistake induced in any way
by GADCO or resulting from anything but their own failure to
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identify GADCO sooner.
The mere failure to identify a potential
defendant within the limitations period, however, is not the sort
of mistake contemplated by part (2)(b) of CR 15.03.
Nolph v.
Scott, Ky., 725 S.W.2d 860 (1987) (citing Schiavone v. Fortune
aka Time, Inc., 477 U.S. 21, 106 S. Ct. 2379, 91 L. Ed. 2d 18
(1986)).
We conclude that the Reeses failed to satisfy either of
the notice requirements of CR 15.03, and therefore that the trial
court correctly refused to allow them to amend their complaint so
as to add GADCO as a party defendant.
Accordingly, we affirm the
January 9, 1997/November 4, 1996, summary judgment of Kenton
Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
D. Anthony Brinker
Wehrman & Wehrman, Chartered
Covington, Kentucky
Robert B. Cetrulo
Ware, Bryson, West & Kummer
Edgewood, Kentucky
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