FLUKE CORPORATION V. GARY LEMASTER, ET AL.
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APPELLA
FLUKE CORPORATION
V.
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2006-CA-002373-MR
PERRY CIRCUIT COURT NO. 01-CI-00214
GARY LEMASTER
AND LARRY LEMASTER
APPELLEES
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
REVERSING
I . INTRODUCTION .
We accepted discretionary review in this products liability case to resolve
whether the Court of Appeals properly adopted foreign authority and correctly
held that equitable estoppel barred the product manufacturer's statute of
limitations defense because the manufacturer allegedly concealed product
defects from government regulatory agencies. We also address whether the
holding of the Court of Appeals properly expanded the discovery rule beyond
the classes of cases currently recognized by Kentucky law.
We conclude that the Court of Appeals erred by applying equitable
estoppel to bar application of the statute of limitations because the product's
potential role in causing the accident that gave rise to this litigation was
immediately evident from the accident itself, and the manufacturer's alleged
failure to disclose product defects to government agencies did not excuse the
plaintiffs' failure to exercise reasonable diligence to discover their cause of
action and the identity of the tortfeasor within the time prescribed by the
statute of limitations. We also refuse to extend application of the discovery rule
to cases not involving latent injuries, latent illnesses, or professional
malpractice and conclude that the Court of Appeals erred to the extent that it
applied the discovery rule under the circumstances presented here . Because
we conclude that the Court of Appeals improperly adopted foreign authority
clearly in conflict with binding Kentucky precedent and erred in its application
of the law to the facts of this case, we reverse the Court of Appeals and
reinstate the trial court's grant of summary judgment to the manufacturer.
II . FACTS.
Neither side disputes the following facts as generally recited by the Court
of Appeals . On April 25, 2000, Travis Arnett, who is not a party to this appeal,
and Gary and Larry LeMaster - all employees of Eagle Electrical Contractors,
Inc . - were dispatched to Typo Tipple, a coal processing facility owned by
Leslie Resources, Inc . Leslie Resources employees reported to Eagle a
suspected electrical failure at the facility. The facility's coal crusher unit would
not start, and smoke was coming from the facility's motor control center.
Arnett and the LeMasters entered the control center of the crusher unit
to check the circuit breakers. Arnett advised the Leslie Resources employees
that he would have to shut off power in the building. The facility was then
evacuated . At Arnett's instruction, Gary LeMaster disengaged the circuit
breaker labeled "MAIN." The facility then lost lights and power to the
remaining machinery. Arnett applied a hand-held voltage meter that showed
that there was no electricity flowing to the crusher's unit breaker. Despite that
reading, the unit was still energized. As Gary LeMaster held the flashlight,
Arnett had just begun to work inside the cabinet housing the crusher breaker
when an electrical arc blasted through the cabinet. Arnett suffered severe
burns and permanently disabling injuries in the explosion . Arnett was also
mentally incapacitated for several months following the explosion . Both of the
LeMasters received less severe injuries.
The Court of Appeals noted that a federal government investigation of the
accident included inspection of Arnett's hand-held voltage meter and found
nothing wrong with it:
An investigation was conducted by the U .S. Department of Labor
Mine Safety and Health Administration (MSHA) I and Arnett's tools
were removed from the site for examination . The inspection
indicated that Arnett's voltage meter was in good working order
following the explosion. MSHA's report concluded that the
explosion occurred as a result of inadequate identification of the
circuit breaker. Arnett's tools remained in the custody of MSHA.
Neither party disputes the accuracy of the recounting of the investigation or its
conclusions as set forth by the Court of Appeals .
A year after the explosion, the three electricians - all represented by the
same counsel -jointly sued Leslie Resources, alleging that its negligence had
caused their injuries. Although their original complaint focused blame on
Leslie Resources for improper wiring or identification of electrical components,
the complaint also included an allegation that it had been Arnett's custom and
practice to use a hand-held voltage meter as a precaution to retest the status of
circuitry. Despite this recognition that voltage testing was or should have been
used to test for the presence of voltage to prevent electrical accidents,
apparently, at that time, the plaintiffs placed the sole blame for the explosion
on Leslie Resources for its alleged negligence in wiring or in identifying
electrical components because no other defendants were named or otherwise
identified . 1
After Leslie Resources deposed Arnett in late August 2001, the plaintiffs
began to shift a portion of the blame to Fluke Corporation, the manufacturer of
Arnett's hand-held voltage meter. Arnett testified by deposition to having used
Because the plaintiffs did not attempt to name any manufacturer of any equipment
as a defendant in their original complaint but, rather, named only the premises
owner as a defendant, the relation-back doctrine is not relevant to this action . See
CR 15 .03 (relation back of amendments), which states, in pertinent part:
(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.
an 87-111 multimeter (an instrument for measuring voltage) manufactured by
Fluke. He stated that the multimeter reported no voltage flowing to the area
where the work would be done. Shortly after the deposition, counsel for
plaintiffs presented the facts to a retired electrician who remembered a product
recall of certain other Fluke products and suggested that perhaps the
multimeter used on the day of the accident had malfunctioned . Apparently, a
different type of instrument used to measure or detect voltage, a Fluke T2
electrical tester, was recalled in March 2001 . Fluke contends the T2 was a
much less sophisticated and less expensive instrument than the 87-111
multimeter and that the T2 was marketed more toward the average consumer
whereas the 87-111 multimeter was a product aimed more at professional
electricians .
The plaintiffs amended their complaint to name Fluke as a defendant in
early September 2001 . Fluke pled the statute of limitations as an affirmative
defense . More discovery ensued. MSHA had taken custody of the voltage
meter after the accident . According to a filing in the trial record, the LeMasters'
attorney took custody of the voltage meter from MSHA in June 2002, which
was approximately nine months after the LeMasters brought Fluke into the
lawsuit. The record does not disclose when the plaintiffs requested custody of
the meter for their investigation . Although the LeMasters draw this Court's
attention to the fact that the meter was in MSHA's hands for some time, they
do not seem to assert that the meter's remaining in MSHA custody was a
predominant reason they did not file suit against Fluke within the statute of
limitations.
Sometime during the course of discovery, Arnett revealed that he had
been aware of a low-battery indicator on his Fluke 87-III multimeter for about
four weeks before the explosion . Despite the low-battery signal, Arnett
continued to use the multimeter without replacing the battery. When redeposed by Fluke, he admitted that he had read the instruction manual for his
87-III multimeter. The instruction manual was later admitted into evidence
and was shown to contain a warning advising that "[t]o avoid possible electric
shock or personal injury, follow these guidelines : . . . . Replace the battery as
soon as the battery indicator (+=) appears."
The plaintiffs sought to admit into evidence Fluke's internal memoranda
that apparently showed that someone reported problems with measuring
voltage correctly when 87-series multimeters (although not specifically the 87
III) were used in low-battery status and, thus, suggested having the multimeter
turn itself off when used in low-battery status . The plaintiffs also submitted
correspondence from the Consumer Product Safety Commission (CPSC) to
Fluke (dated 2002 - after the amended complaint here was filed) reprimanding
Fluke for not disclosing defects related to another series of multimeters (not the
87 series or 87-III).
Fluke filed motions for summary judgment based on the statute of
limitations . In the course of extensive briefing permitted by the trial court, the
LeMasters argued that their claims were timely filed by operation of the
discovery rule and principles of equitable estoppel. They argued that Fluke
had failed to comply with duties to report consumer product hazards as
required by the Consumer Product Safety Act. The plaintiffs acknowledged in
filings with the trial court that they were aware that the multimeter used by
Arnett was manufactured by Fluke at the time of the accident, but they argued
that they had no reason to suspect the multimeter malfunctioned until they
were informed of recalls of other Fluke products. They also contended that
Fluke had fraudulently concealed known defects in the meter used or in similar
meters by failing to report them publicly.
Fluke argued that the LeMasters should have reasonably surmised that
either Arnett had not used the multimeter correctly or that the multimeter had
malfunctioned at the time of the accident because, obviously, the crusher
remained energized even after the main breaker was disengaged.
The trial court granted a motion in limine filed by Fluke to exclude
evidence of recalls of its unrelated products . The trial court ultimately
determined that in regard to Arnett, the statute of limitations was tolled during
the period of his mental disability ending in September 2000 . So the trial court
found that Arnett's claims against Fluke were timely filed, and the resolution of
Arnett's claims is not before us now.2 But as to the LeMasters' claims, the trial
Arnett's claims eventually proceeded to trial where the jury returned a verdict in
his favor against Fluke, although the jury also found Arnett partially at fault and
Leslie Resources primarily at fault. Fluke appealed the judgment against it, but
the appeal was dismissed when Fluke and Arnett reached a settlement .
court ultimately granted summary judgment in favor of Fluke based on the
statute of limitations.
The Court of Appeals vacated the trial court's summary judgment,
finding instead that Fluke was equitably estopped from relying on the statute of
limitations because it had failed to comply with a duty to report consumer
product hazards under the Consumer Product Safety Act as the Alaska
Supreme Court similarly reasoned in Palmer, v. Borg-Warner.3
III. ANALYSIS.
The larger question before us is whether the trial court properly granted
summary judgment and, thus, whether the Court of Appeals erred in reversing
the trial court's grant of summary judgment to Fluke. In answering this
question, we are mindful that "[t]he standard of review for summary judgments
is whether the trial court correctly determined that there were no genuine
issues of material fact and that the moving party was entitled to judgment as a
matter of law. "4
In reviewing the summary judgment granted by the trial court in this
case, it is apparent that the parties essentially agree on the facts about what
happened and when it happened but dispute whether, given these largely
agreed-upon facts, Fluke was entitled to judgment as a matter of law based on
838 P .2d 1243 (Alaska 1992) (applying equitable estoppel based upon failure to
comply with statutory duties of disclosure in highly regulated industry of aircraft
manufacture)
Lach v. Man O'War, LLC, 256 S.W.3d 563, 567 (Ky. 2008), citing Steelvest, Inc. v.
Scansteel Serv. Ctr, Inc., 807 S.W.2d 476, 480 (Ky. 1991) .
the statute of limitations . Because we agree with the trial court that based
upon these largely undisputed facts, the LeMasters' claims were barred by the
statute of limitations and that Fluke was entitled to judgment as a matter of
law, we conclude that the Court of Appeals erred in reversing the trial court's
grant of summary judgment .
No one disputes that the plaintiffs' personal injury claims were subject to
a one-year statute of limitations .s So the action had to be filed within one year
after the cause of action accrued in the absence of some justification for tolling
the running of the statute of limitations . The LeMasters were injured in the
explosion in late April 2000 but did not file suit against Fluke until early
September 2001 . Unless the cause of action did not immediately accrue upon
the injurious explosion or unless the running of the statute of limitations is
tolled for some reason, their action was barred under the statute of limitations.
The trial court obviously found no reason why the LeMasters' cause of action
would not immediately accrue and no reason to toll the running of the statute
of limitations .
But the Court of Appeals reversed the summary judgment finding that
the record showed that Fluke should be equitably estopped from relying on the
statute of limitations on grounds of its purported failure to comply with duties
of disclosure imposed by the Consumer Product Safety Act . The Court of
Appeals referred in its analysis to the discovery rule and seemingly concluded
s
KRS 413.140(1)(a) (providing that "action for an injury to the person of the plaintiff
is one that must "be commenced within one (1) year after the cause of action
accrued.") .
that the LeMasters' claims were timely filed under the discovery rule since the
LeMasters had not heard of any previous problems with Fluke voltage meters
and, thus, had no reason to suspect that meter malfunction may have caused
the accident until they heard a different Fluke voltage-measuring product had
been recalled.6 We conclude that the discovery rule was not applicable in the
instant case and that the Court of Appeals erred in determining that equitable
estoppel operated to deprive Fluke of its statue of limitations defense under the
facts of this case.
A. Discovery Rule Did Not Apply Here .
Despite the LeMasters' argument to the contrary, the discovery rule
simply has no application to this case . As stated by the Court of Appeals,
"[unnder the `discovery rule,' a cause of action will not accrue until the plaintiff
discovers (or in the exercise of reasonable diligence should have discovered) not
only that he has been injured, but also that this injury may have been caused
by the defendant's conduct." But the discovery rule is available only in cases
where the fact of injury or offending instrumentality is not immediately evident
or discoverable with the exercise of reasonable diligence, such as in cases of
medical malpractice or latent injuries or illnesses .?
After concluding that Fluke was equitably estopped from relying on the statute of
limitations, the Court of Appeals also stated: "Moreover, the LeMasters acted with
due diligence under the circumstances. As soon as they became aware that Fluke
had produced defective meters and that it had a history of failing to make required
reports to the Consumer Product Safety Commission, they acted promptly to test
Arnett's voltage meter and to file this products liability action."
See, e.g., Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 819 (Ky. 1991)
(answering question of whether discovery rule applied to cases involving latent
diseases allegedly caused by construction defects in the affirmative and further
10
The LeMasters do not dispute that their injuries were immediately
apparent . And they were aware at the time of the explosion that Arnett tested,
or should have tested, for voltage with a voltage-measuring instrument, yet, an
electrical explosion occurred . So despite their statements that they had not
previously heard of voltage meters malfunctioning and trusted Fluke brand
products, they should have reasonably suspected that the voltage meter was
not working properly and investigated this possibility .s Even though the MSHA
clarifying that "we respond that in the circumstances presented 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 ."') ; Louisville Trust Co. v. Johns-Manville Product Corp.,
580 S.W.2d 497, 501 (Ky. 1979) (first extending discovery rule from medical
malpractice cases to other cases involving latent diseases) ; Tomlinson v. Siehl,
459 S.W.2d 166 (Ky. 1970) (adopting discovery rule for medical malpractice cases) ;
Hackworth v. Hart, 474 S .W.2d 377, 379 (Ky. 1971) (clarifying that under discovery
rule adopted for medical malpractice cases in Tomlinson, "there should have been
added to the rule in Tomlinson a further statement that the statute begins to run
on the date of the discovery of the injury, or from the date it should, in the exercise
of ordinary care and diligence, have been discovered.") . See also McLain v. Dana
Corp., 16 S .W.3d 320, 326 (Ky.App. 2000) (refusing to apply discovery rule to delay
running of statue of limitations in a products liability action until plaintiff
discovered identity of product manufacturer where product's role in causing injury
(machinery hitting plaintiffs head) was immediately apparent: "Under Kentucky
law, the discovery rule provides that a cause of action accrues when the injury is,
or should have been, discovered. However, the discovery rule does not operate to
toll the statute of limitations to allow an injured plaintiff to discover the identity of
the wrongdoer unless there is fraudulent concealment or a misrepresentation by
the defendant of his role in causing the plaintiffs injuries . A person who has
knowledge of an injury is put on `notice to investigate' and discover, within the
statutory time constraints, the identity of the tortfeasor . Application of the
discovery rule under circumstances as in the case sub judice would defeat the very
purpose of the limitations . As one court observed, `logic dictates that such an
exception is capable of swallowing the rule."') (footnotes omitted) .
See Hazel v. General Motors Corp., 863 F.Supp. 435, 438-39 (W.D .Ky. 1994)
(explaining why plaintiff's tort suit seeking damages from automaker for explosion
caused by fuel tank defect, which was brought in federal court under federal
diversity jurisdiction, was barred by statute of limitations because discovery rule
did not apply to facts under Kentucky law: "In our case, Plaintiff knew that a fuelfed automobile fire caused his injuries. In other words, the injury and the
instrumentality causing the injury were obvious. Thus, though Plaintiff surmised
report indicated the meter was working properly, the fact that this agency saw
fit to examine this meter makes clear that a malfunctioning meter was at least
suspected as a potential cause of the explosion . And this suspicion should
have reasonably prompted the LeMasters' own prompt, independent
investigation of the voltage meter as a possible cause . Thus, the Court of
Appeals erred by extending the discovery rule to this case.
B . Equitable Estoppel .
Not only did the Court of Appeals err to the extent that it applied the
discovery rule to the present facts, but it also erred in affirmatively holding that
Fluke was equitably estopped9 from relying on the statute of limitations . In
doing so, it expanded this doctrine beyond Kentucky precedent to adopt an
all the relevant facts, he may not have perceived that a design defect was the cause
of his injury or that he could maintain a legal action against Defendant . A statute
of limitations, however, begins to run from the date of discovery of the injuries and
what or who was responsible for them, not from the date the plaintiff discovered
that he had a cause of action . Conway v. Huff, 644 S .W.2d 333, 334 (Ky. 1983) .
Had he consulted an attorney, Plaintiff undoubtedly could have learned about that
more precise mechanism or defect, if one existed . Thus, under Kentucky's
discovery rule Plaintiffs cause of action accrued at the time of the accident .")
(footnotes omitted) .
Statutory estoppel clearly does not apply here since Fluke is not a resident of
Kentucky . KRS 413 .190 states :
(1) If, at the time any cause of action mentioned in KRS 413.090 to 413 .160
accrues against a resident of this state, he is absent from it, the period limited
for the commencement of the action against him shall be computed from the
time of his return to this state .
(2) When a cause of action mentioned in KRS 413.090 to 413 .160 accrues against
a resident of this state, and he by absconding or concealing himself or by any
other indirect means obstructs the prosecution of the action, the time of the
continuance of the absence from the state or obstruction shall not be computed
as any part of the period within which the action shall be commenced . But this
saving shall not prevent the limitation from operating in favor of any other
person not so acting, whether he is a necessary party to the action or not.
(Emphasis added.)
expansive view similar to that established by Alaska precedent in Palmer v.
Borg-Warner Corporation .
Under Kentucky law, equitable estoppel requires both a material
misrepresentation by one party and reliance by the other party:
The essential elements of equitable estoppel are[ :] (1) conduct
which amounts to a false representation or concealment of
material facts, or, at least, which is calculated to convey the
impression that the facts are otherwise than, and inconsistent
with, those which the party subsequently attempts to assert;
(2) the intention, or at least the expectation, that such conduct
shall be acted upon by, or influence, the other party or other
persons; and (3) knowledge, actual or constructive, of the real
facts . And, broadly speaking, as related to the party claiming the
estoppel, the essential elements are (1) lack of knowledge and of
the means of knowledge of the truth as to the facts in question ;
(2) reliance, in good faith, upon the conduct or statements of the
party to be estopped ; and (3) action of inaction based thereon of
such a character as to change the position or status of the party
claiming the estoppel, to his injury, detriment, or prejudice . l°
To establish an equitable estoppel against Fluke, the LeMasters would
have to show three things on their part: (1) lack of knowledge or means of
knowledge of the truth ; (2) reliance, in good faith, based on something Fluke
did or did not do or state ; and (3) resulting action or inaction on the LeMasters'
part that somehow changes their position or status for the worse. Obviously,
the LeMasters claim that the last two elements are met because they contend
that their inaction by failing to file a complaint against Fluke within the statute
of limitations was done in reliance upon Fluke's lack of statements disclosing
io
Sebastian-Voor Properties, LLC v. Lexington-Fayette Urban County Government,
265 S.W .3d 190, 194-95 (Ky . 2008), quoting Weiand v. Bd. of Trs. ofKentucky Ret.
Sys ., 25 S.W .3d 88, 91 (Ky . 2000), and Electric and Water Plant Bd. ofFrankfort v.
Suburban Acres Dev., Inc., 513 S.W.2d 489, 491 (Ky. 1974) .
13
meter defects. But the LeMasters cannot show they lacked the means of
acquiring knowledge of the truth that the multimeter could have
malfunctioned, which would render any actual reliance reasonable . Although
the LeMasters may not have subjectively suspected fault on Fluke's part, the
fact remains that they knew of the purported voltage testing, understood
voltage not to be present, and knew that an electrical explosion occurred
anyway .
In addition to the problems with establishing their own reliance, the
LeMasters could not establish the necessary elements regarding Fluke's
conduct. As Fluke points out, the LeMasters do not claim that Fluke engaged
in any affirmative conduct to misrepresent or conceal facts. For example, in no
way is it alleged that Fluke concealed its identity as manufacturer of the
multimeter or concealed the fact that an erroneous multimeter reading could
have caused the accident . Rather, the LeMasters allege that Fluke failed to
comply with duties to disclose defects under the Consumer Product Safety Act
and, in so doing, engaged in material misrepresentation or fraudulent
concealment to support a finding of equitable estoppel. Before the Court of
Appeals decision in this case, however, there was no precedent in Kentucky for
finding fraudulent concealment based solely upon such an alleged failure
publically to disclose product defects to government agencies.
The Court of Appeals, however, concluded that Fluke was equitably
estopped from relying on the statute of limitations based on its finding that
Fluke had fraudulently concealed defects in its products through failure to
report problems with meters to the CPSC . Applying the logic expressed in the
Palmer case, the Court of Appeals decided :
The elements of equitable estoppel have been met in this
case. In light of the circumstances alleged by the LeMasters and
supported by their discovery documents, it appears that the
manufacturer indeed remained silent when it had an affirmative
statutory obligation to report information relative to the safety of
its product . We adopt the cogent reasoning of the Supreme Court
of Alaska and hold that parties are entitled to assume that a
product is safe if there is no adverse information reported as
required to indicate that it may pose a danger. Fluke would place
a burden on the plaintiffs to inquire into any and every possible
defect inherent in its product despite its own failure to disclose a
known defect.
The LeMasters were surely not anticipating potential
tortfeasors in utilizing the voltage meter. Arnett's meter was
retrieved by federal officials and was examined ; it was cleared as to
defects. The cause of the explosion was initially attributed to
another source altogether . The LeMasters' failure to inquire was
wholly attributable to Fluke's fraudulent concealment of critical
facts - facts peculiarly and uniquely within its knowledge as the
manufacturer and distributor of the product.
Moreover, the LeMasters acted with due diligence under the
circumstances . As soon as they became aware that Fluke had
produced defective meters and that it had a history of failing to
make required reports to the Consumer Product Safety
Commission, they acted promptly to test Arnett's voltage meter and
to file this products liability action.
Under this approach, the statute of limitations never starts to run
against a consumer even when a consumer is immediately aware that the
product caused an injury unless the product manufacturer has issued a recall
or otherwise publicly disclosed defects to government agencies. This approach
negates the plaintiff's duty to exercise reasonable diligence to investigate
apparent possible causes of his injuries ." Contrary to the holding of the Court
of Appeals that "parties are entitled to assume that a product is safe if there is
no adverse information reported as required to indicate that it may pose a
danger[,]" we construe precedent from Kentucky courts to hold that plaintiffs
have a duty to inquire into the safety of products where it is apparent from the
facts that the product may have been a potential cause of an injury. 12 As
stated by the Court of Appeals in an earlier case, "[i]n the products liability
context, a potential plaintiffs awareness of an injury and of the instrumentality
12
See McLain, 16 S.W.3d at 326. ("A person who has knowledge of an injury is put on
`notice to investigate' and discover, within the statutory time constraints, the
identity of the tortfeasor .") ; Hazel, 863 F .Supp. at 439, citing Burke v. Blair,
349 S.W.2d 836, 838 (Ky. 1961) ("Plaintiff is under the duty to exercise reasonable
care and diligence to discover whether he has a viable legal claim .") .
See McLain, 16 S.W.3d at 326 (rejecting plaintiff's argument that statute of
limitations should not run until he discovered identity of product manufacturer
where product's role in causing injury was immediately apparent (machinery
hitting plaintiff's head) and noting plaintiff's duty to investigate) ; Reese v. General
American Door Co., 6 S.W.3d 380, 383 (Ky.App. 1999) (holding that relation back
doctrine did not apply to save an otherwise tardy cause of action since plaintiffs
knew they were injured by garage door, they had duty to investigate garage door,
and statute of limitations was not tolled by their mere failure to identify the garage
door manufacturer within statute of limitations where no improper concealment by
manufacturer was alleged) ; Burke, 349 S.W.2d at 838 (recognizing in non-products
liability personal injury action that plaintiff generally has "duty to exercise
reasonable care and diligence" while discussing how defendant might be estopped
from relying on statute of limitations where defendant's fraudulent concealment
has "prevent[ed] inquiry or elude[d] investigation" by the plaintif ; McCollum v.
Sisters of Charity ofNazareth Health Corp., 799 S.W.2d 15, 18 (Ky. 1990) (medical
malpractice case in which this Court implicitly recognized that plaintiff has duty to
investigate when injury is known to exist: "In these five cases, death is the injury
that put appellants on notice to investigate ."). See also Hazel, 863 F .Supp. at 43840 (construing Kentucky caselaw to place duty to investigate on plaintiff who knew
that the cause of his injuries was a fuel-fed automobile fire) .
16
causing the injury is enough to trigger the limitations clock and to impose on
the plaintiff the duty to discover the responsible parties." 13
Here, the plaintiffs do not dispute that they knew that Arnett had used a
Fluke voltage meter to ensure that voltage was off yet, obviously, there was still
voltage flowing since the electrical explosion occurred . As the federal district
court for the Western District of Kentucky has stated in construing Kentucky
law: "An injured party has an affirmative duty to use diligence in discovering
the cause of action within the limitations period. Any fact that should excite
his suspicion is the same as actual knowledge of this entire claim." 14
Applying Kentucky law concerning the statute of limitations, the federal
district court for the Western District of Kentucky rejected the plaintiff's
argument that an automobile manufacturer's failure to comply with a statutory
duty to report defects to a federal government agency equitably estopped it
from relying on the statute of limitations where the plaintiff should have known
to investigate the possibility of a fuel tank defect given the fuel tank explosion
that injured him. The court stated:
Even if Defendant did conceal evidence of the gas tank's design
defect, that would not distinguish our case from almost every
products liability action in which defendants know or possess
potentially harmful information that is withheld until litigation
compels disclosure . Here, evidence of the cause of action was
clearly discoverable from analysis of the instrumentality, and
Plaintiff failed to examine the instrumentality . If Defendant
concealed information, its actions did not prevent this Plaintiff
13
14
Reese, 6 S.W.3d at 383, citing Hazel, 863 F .Supp. at 435 .
Hazel, 863 F .Supp. at 440 (citations and internal quotation marks omitted) .
17
from learning enough to assess whether he should file a
complaint . 15
Similarly, in the instant case, even if Fluke had somehow concealed
evidence of a defect in the meter, the possibility of meter malfunction (and
cause of action against manufacturer) was evident from the facts of the
incident; but the plaintiffs failed to investigate this possibility in a timely
manner. Fluke's actions or inactions did not prevent the LeMasters from
learning enough to assess whether they should sue Fluke .
Not only were the LeMasters not relieved of their duty to exercise due
diligence, but the finding of the Court of Appeals that Fluke had affirmatively
violated its duty of disclosure under the Consumer Product Safety Act likely
involves improper fact-finding and a misapplication of law to the facts of this
case.
The federal Consumer Product Safety Act (15 U.S.C. § 2051, et seq.)
applies to consumer products . 16 The trial court made no finding that Arnett's
multimeter was a consumer product. In finding that Fluke had duties to
disclose potential problems with its meters, the Court of Appeals implicitly
found that this voltage meter was a consumer product. In the alternative,
15
16
Id. at 439-40 .
20 U.S .C . § 2052(5) states, in pertinent part, that: "The term `consumer product'
means any article, or component part thereof, produced or distributed (i) for sale to
a consumer for use in or around a permanent or temporary household or
residence, a school, in recreation, or otherwise, or (ii) for the personal use,
consumption or enjoyment of a consumer in or around a permanent or temporary
household or residence, a school, in recreation, or otherwise; but such term does
not include - (A) any article which is not customarily produced or distributed for
sale to, or use or consumption by, or enjoyment of, a consumer . . . ."
18
perhaps the Court of Appeals meant that other, less sophisticated testers
manufactured by Fluke were consumer products, but the trial court had
excluded evidence of the recalls of these other products . The trial court's
decision to exclude this other-products evidence was not challenged on appeal .
Yet the Court of Appeals does not point to any evidence of record to show that
the meter used was a consumer product or that the manufacturer of such
products was part of a highly regulated industry . Although Fluke has raised
some doubts about whether the multimeter (allegedly an expensive, highly
sophisticated instrument marketed to professional electricians for use in their
work) Arnett used was really subject to disclosure requirements under the
Consumer Product Safety Act, it is ultimately unnecessary and inappropriate
for this Court to resolve whether this multimeter really was a consumer
product regulated by the Consumer Product Safety Act.
Even assuming for the sake of argument that the multimeter was a
consumer product and that Fluke violated duties under the Consumer Product
Safety Act by not reporting potential problems with similar multimeters or
other voltage-testing products to the CPSC, Kentucky law has not previously
held that such failure excuses a plaintiff's duty to exercise due diligence to
investigate or constitutes fraudulent concealment sufficient to invoke equitable
estoppel where, as here, the product's potential role in causing an injury is
immediately evident. 17 The federal district court in the Hazel case recognized
17
perhaps a failure to comply with statutory or other duties of disclosure might
constitute "concealment of material. facts" satisfying that element of equitable
estoppel in certain circumstances especially where it actually obscured a cause of
19
this in response to a similar plaintiff's argument : "Plaintiff asks this Court to
do what Kentucky courts have not yet done, namely to extend the protection to
consumers a step further, to toll the statute of limitations based upon
Defendant's duty to, inform consumers of a dangerous defect." 18 The federal
district court refused to extend Kentucky's tolling rules in such a manner, just
as the Court of Appeals should have done here .
Instead of following Kentucky precedent, the Court of Appeals chose to
follow the Palmer case, which we believe is distinguishable on its facts and
inconsistent with Kentucky precedent. As the Hazel court recognized, Palmer
is different from the instant case because the manufacturer in Palmer had
allegedly made false representations concerning a product's defects. 19 In
Palmer, the plaintiffs alleged that the defendant manufacturer had not just
failed to disclose defects, but had affirmatively provided false or misleading
information to government authorities:
action against a defendant . See Roman Catholic Diocese of Covington v. Secter,
966 S.W .2d 286, 290 (Ky .App. 1998) (diocese's failure to comply with statutory
duty to report child abuse held to constitute evidence of concealment supporting
statutory (KRS 413 .190) estoppel where this failure to disclose obscured cause of
action for negligent retention and supervision of priest that diocese had known to
have abused children) . See also Munday v. Mayfair Diagnostic Laboratory, 831
S.W .2d 912, 914-15 (Ky. 1992) (failure to comply with disclosure requirements
under assumed name statute sufficient "concealment" for statutory estoppel
because this failure to disclose prevented plaintiffs from naming proper defendants
within statute of limitations) . But equitable estoppel cannot be invoked when the
plaintiff could not have reasonably relied on the defendant's failure to disclose
because the product's potential role in causing injury was immediately apparent.
See Hazel, 863 F. Supp. at 439-40 .
is Hazel, 863 F .Supp. at 440.
19 See id . at 441 n.14 (noting false
representations made by manufacturer in Palmer,
838 P.2d at 1250) .
20
the Palmer estate alleged that Borg-Warner actively and deceptively
cultivated the auto gas theory of causation (use of auto gas as the
cause of carburetor failure), while concealing the true cause of
carburetor failure from the public, the NTSB and the FAA .
Otherwise stated, the Palmer estate alleged that Borg-Warner
purposely placed false information in the public domain in order to
divert suspicion away from it and onto the pilot of an aircraft for
operating on auto gas. The estate further alleged that it did
pursue an investigation reasonably available to it, including the
NTSB report, but that Borg-Warner's false representations
`prevent[ed] an investigation [by the estate] from revealing any
relevant results.' These allegations meet the reliance requirement
of the equitable estoppel doctrine . 2o
Unlike the Palmer case, however, Fluke did nothing to obscure its product's
potential role in causing an unfortunate accident. Even accepting that other
causes may also have led to the explosion here, obviously, there was voltage
present even though the multimeter showed otherwise . Even in the absence of
any reports of defects to the CPSC or other agency and the MSHA's finding the
meter to be in good working order, plaintiffs had enough information
reasonably to suspect that the multimeter could have malfunctioned and, thus,
failed to prevent the explosion. Unlike the Palmer plaintiffs, the LeMasters
have not alleged that Fluke somehow actively presented false or misleading
information to the public or any government agency, just that it did not
publicly disclose alleged defects. Thus, the instant case is clearly factually
distinguishable from Palmer because it simply does not present the same sort
of alleged affirmative misconduct by the defendant.
Not only is Palmer factually distinguishable, but we simply do not agree
with its legal reasoning. Despite our sympathy for those injured by products
20
Palmer, 838 P.2d at 1250 .
21
through no fault of their own, such injured parties have the duty to act
diligently to investigate apparent possible causes of their injuries in order to
pursue claims within the statute of limitations . Given this duty, the statute of
limitations will begin to run immediately because delaying the accrual of the
cause of action or tolling the running of the statute of limitations by operation
of the discovery rule or the equitable estoppel doctrine is reserved for truly
exceptional circumstances, such as where the injury itself is not immediately
discoverable or the product's potential role in causing an accident is actively
obscured by the defendant's concealment or false representations .
IV. CONCLUSION .
For the foregoing reasons, the judgment of the Court of Appeals is
reversed; and the summary judgment granted by the trial court in .favor of
Fluke is reinstated .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Jill F. Endicott
Richard H. C. Clay
Dinsmore 8s Shohl, LLP
2500 National City Tower
101 South Fifth Street
Louisville, Kentucky 40202
COUNSEL FOR APPELLEES:
Anthony David Blankenship
Mitchell Delbert Kinner
Robert Joseph Patton
Kinner 8v Patton
328 East Court Street
Prestonsburg, Kentucky 41653-7935
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