JAMES ALAN CUMMINS AND DEBORAH CUMMINS v. SDS SERVICES, INC.
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RENDERED:
SEPTEMBER 9, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001844-MR
JAMES ALAN CUMMINS
AND DEBORAH CUMMINS
v.
APPELLANTS
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 99-CI-01365
SDS SERVICES, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE AND GUIDUGLI, JUDGES; PAISLEY, SENIOR JUDGE. 1
GUIDUGLI, JUDGE:
James Alan Cummins and Deborah Cummins appeal
from an opinion and order of the Franklin Circuit Court granting
summary judgment in favor of SDS Services, Inc.
SDS
successfully argued that it was entitled to summary judgment
because the Cumminses’ personal injury claim was barred by the
1
Senior Judge Lewis G. Paisley, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
applicable one-year statute of limitations.
For the reasons
stated below, we affirm the opinion and order.
On April 20, 1999, James Cummins was performing
masonry work on a jobsite when he was injured by a piece of
falling plywood.
Cummins was laying brick at the lower level of
a church building under construction when a carpenter, Tim
Stacey, who was working above him on scaffolding, dropped the
plywood.
Cummins sustained a serious injury including a badly
broken collar bone.
Frank Haydon Builders, Inc. was the general contractor
on the project.
Frank Haydon, the owner of the corporation,
hired a subcontractor named Dave Marcum to perform the masonry
work on the project.
In turn, Marcum hired Cummins and provided
workers’ compensation insurance for Cummins.
Cummins declined
the coverage.
Stacey was employed by SDS Services, Inc.
SDS is a
temporary services or “manpower” company which provided workers
to Haydon on his smaller construction projects.
Haydon paid
SDS, who in turn hired and provided Stacey for the project.
On November 19, 1999, the Cumminses filed the instant
personal injury action and loss of consortium claim against
Frank Haydon Builders.
Frank Haydon Builders answered on
December 16, 1999, offering among its ten defenses the claims
that the negligent act was brought about by a third party and
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that the Cumminses failed to join a necessary party.
It is now
clear that when the complaint was filed that the Cumminses were
not aware that Stacey was employed by SDS rather than Frank
Haydon Builders.
The matter proceeded in Franklin Circuit Court.
No
discovery was taken until March, 2002, some two and one-half
years after the complaint was filed.
During the intervening
period, the Cumminses moved for partial summary judgment on the
workers’ compensation issue, and Frank Haydon Builders filed a
cross-motion for summary judgment.
Apparently as a result of the information set forth in
the cross-motion, the Cumminses learned that Stacey was employed
by SDS rather than Frank Haydon Builders.
Thereafter, the
Cumminses sought and received leave to file an amended complaint
adding SDS as a party defendant.
After the amended complaint was filed and answered,
SDS filed a motion on April 18, 2002, seeking summary judgment.
As a basis for the motion, SDS argued that the Cumminses’ claim
was barred by the applicable one-year statute of limitations.
It noted that the injury occurred on April 20, 1999, and that
the amended complaint against SDS was filed in September, 2001.
The motion was granted by way of an opinion and order rendered
on July 3, 2002.
The court found in relevant part that the
action was time-barred and that nothing prevented the Cumminses
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from learning SDS’s role in this matter except the Cumminses own
lack of due diligence in conducting discovery.
After the
Cumminses’ motion to alter, amend or vacate the summary judgment
was denied, this appeal followed.
The Cumminses now argue that the circuit court
committed reversible error in rendering summary judgment in
favor of SDS.
They maintain that there was no way for them to
know that SDS was Stacey’s employer; that the statute of
limitations only begins to run when the relationship between the
injury and the tortfeasor can be found; that an evidentiary
question exists as to whether SDS misrepresented itself as being
Frank Haydon Builders; that the dismissal of their claim is
unconstitutional; that questions of fact remain for the jury;
and, that they are entitled to proceed with their claim under CR
15.03 relating to mistaken identity.
In sum, they maintain that
a defendant that hides its identity should not be rewarded with
a summary judgment, and they seek an order reversing the
judgment and remanding the matter for trial.
We have closely examined the record and the law, and
find no error in the Franklin Circuit Court’s entry of summary
judgment in favor of SDS.
The court granted summary judgment
based on its findings that,
1) the amended complaint adding SDS
as a party defendant was not filed within the one-year statutory
period, and 2) that the Cumminses failed to learn of SDS’s
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identity not because of fraud but due to their lack of due
diligence in conducting discovery.
It is uncontroverted that the amended complaint
against SDS was not filed within the applicable statutory
period.
KRS 413.140(1) states, “[T]he following actions shall
be commenced within one (1) year after the cause of action
accrued:
(a) An action for an injury to the person of the
plaintiff, or of her husband, [or] his wife . . .
.”
The
cause of action accrued on April 20, 1999, and as such the
statutory period ended one (1) year later.
The question then becomes whether the Cumminses are
relieved of compliance with KRS 413.140(1) by operation of the
statutory law or case law.
This is the essence of their claim
of error, i.e., that the Franklin Circuit Court improperly
failed to conclude that they should not be bound by the
statutory period because SDS fraudulently concealed its
identity.
Incorporated in this argument is the claim that the
statutory period should not begin to run until the tortfeasor’s
identity has been discovered.
The circuit court properly found that the Cumminses’
failure to learn of SDS’s role as Stacey’s employer resulted
from a lack of due diligence in discovery.
The record shows the
first “Notice of Deposition” to have been filed by Frank Haydon
Builders on January 22, 2002, some 33 months after the injury.
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It is clear that the Cumminses did not conduct any discovery in
response to the defenses contained in Frank Haydon Builders’
December 16, 1999, answer, to wit, that the negligent act was
brought about by a third party and that the Cumminses failed to
join a necessary party.
An inquiry by the Cumminses as to the
identity of this third party, or any question for that matter as
to the nature of Stacey’s employment status on April 19, 1999,
would have led to SDS.
Similarly, there is no basis for concluding that
either Frank Haydon Builders or SDS acted to conceal SDS’s
identity or hide the fact that SDS employed Stacey.
Frank
Haydon Builders had no apparent incentive to protect SDS, and
its answer to the April 19, 1999, complaint stated its belief
that the Cumminses failed to join a necessary and proper party.
The Cumminses allege that SDS misrepresented itself as
being Frank Haydon Builders by having its employees work on a
job site with a sign that said Frank Haydon Builders and driving
a truck which also displayed the Haydon’s name.
It also stated
that Stacey believed that he worked for Haydon and that he
thought SDS was only a payroll company.
These facts are not
sufficient for us to conclude that SDS engaged in “fraud by
concealment” sufficient to toll the running of the statutory
period.
The fact that Stacey may have believed he worked for
Haydon does not constitute actionable fraud on the part of SDS.
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The Franklin Circuit Court also properly rejected the
Cumminses’ argument that the discovery rule tolls the statute of
limitations where the actual injury is known to the plaintiff
but the defendant is unknown.
It correctly found that each of
the cases relied on by the Cumminses for this assertion
addressed facts with unknown injuries not unknown defendants 2 ,
and that they do not stand for the proposition that the
statutory period is tolled while the plaintiff searches for the
tortfeasor.
In the matter at bar, the injury was known from the
outset, and the failure to file against the correct defendant
does not toll the running of the statutory period.
Lastly, the Cumminses argue that CR 15.03 operates to
allow the amended complaint to relate back in time to the filing
of the original complaint for purposes of compliance with the
statute of limitations.
We disagree.
CR 15.03 states,
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
2
See Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709 (Ky. 2000); Louisville
Trust Company v. Johns-Manville Products Corporation, 580 S.W.2d 497 (Ky.
1979).
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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.
Reese v. General American Door Co. 3 addresses the application of
CR 15.03 and is dispositive.
In Reese, a panel of this Court
concluded that the relationship between a garage door
manufacturer and the retailer was not so close that they shared
an “identity of interest” for purposes of imputing notice from
one to the other.
That is to say, Reese’s notice to the seller
of a garage door could not be imputed to the manufacturer even
though a business relationship existed between the two.
Though Haydon and SDS do not share a retailermanufacturer relationship as in Reese, we believe their business
relationship is sufficiently similar for the reasoning set forth
in Reese to apply.
Reese reaffirmed the rule 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." 4
While it is plausible that SDS was placed on notice of
the Cumminses’ claims during the statutory period, we cannot go
3
4
6 S.W.3d 380 (Ky. App. 1998).
Id. at 382.
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so far as to say that the trial court erred in failing to
provide relief to the Cumminses on this issue. 5
Summary judgment "shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories,
stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." 6
"The record must be viewed in a
light most favorable to the party opposing the motion for
summary judgment and all doubts are to be resolved in his
favor." 7
"Even though a trial court may believe the party
opposing the motion may not succeed at trial, it should not
render a summary judgment if there is any issue of material
fact." 8
Finally, "[t]he standard of review on appeal of a
summary judgment is whether the trial court correctly found that
there were no genuine issues as to any material fact and that
the moving party was entitled to judgment as a matter of law." 9
Viewing the record in a light most favorable to the
Cumminses and resolving all doubts in their favor, we are
nevertheless compelled to conclude that summary judgment in the
5
It is also unclear whether this issue was actually raised before the Circuit
Court, as it was not addressed in the opinion and order on appeal.
6
CR 56.03.
7
Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky.
1991).
8
Id.
9
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996).
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matter at bar was appropriate.
The action was not filed against
SDS within the statutory period, and nothing in the record
brings us to the conclusion that the Cumminses should be
relieved from compliance with KRS 413.140(1).
Accordingly, we
find no error.
For the foregoing reasons, we affirm the opinion and
order of the Franklin Circuit Court granting summary judgment in
favor of SDS.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert E. Reeves
Lexington, KY
Eileen M. O’Brien
Lexington, KY
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