596 F.3d 313 (6th Cir. 2010), 09-5158, Asher v. Unarco Material Handling, Inc.

Docket Nº:09-5158.
Citation:596 F.3d 313
Opinion Judge:GRIFFIN, Circuit Judge.
Party Name:William Harris ASHER, et al., Plaintiffs, v. UNARCO MATERIAL HANDLING, INC., a Tennessee Corporation, Intervening Plaintiff/Defendant-Appellee, Lora Bush; Stephen Bush; James Helton; Chrystal Kae Hill; Jamey Hill; Dora Keley; Stephen King; Anna Rachelle McClure; Gary Patterson; Danny Pittman; Billy Rhodes; Clifford Robert Sage; Kimberly Dawn Deerfi
Attorney:Elizabeth K. Russo, Russo Appellate Firm, P.A., Miami, Florida, for Appellants. Todd S. Page, Stoll KeenonOgden PLLC, Lexington, Kentucky, Douglas W. Langdon, Frost Brown Todd LLC, Louisville, Kentucky, for Appellees. Elizabeth K. Russo, Russo Appellate Firm, P.A., Miami, Florida, for Appellants....
Judge Panel:Before: KENNEDY, COLE, and GRIFFIN, Circuit Judges.
Case Date:March 03, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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596 F.3d 313 (6th Cir. 2010)

William Harris ASHER, et al., Plaintiffs,

Lora Bush; Stephen Bush; James Helton; Chrystal Kae Hill; Jamey Hill; Dora Keley; Stephen King; Anna Rachelle McClure; Gary Patterson; Danny Pittman; Billy Rhodes; Clifford Robert Sage; Kimberly Dawn Deerfield Sage; Glenna Gail Shupe; Sean Lee Shupe; Cecil David Spurlock; Elaine M. Spurlock; Bennie Swift; Sarah Beth Swift; Kathy Trent; and Ricky Trent, Plaintiffs-Appellants,

v.

UNARCO MATERIAL HANDLING, INC., a Tennessee Corporation, Intervening Plaintiff/Defendant-Appellee,

Atlas Material Handling, Inc., a California Corporation, Defendant/Third Party Plaintiff-Appellee.

No. 09-5158.

United States Court of Appeals, Sixth Circuit.

March 3, 2010

Argued: Jan. 15, 2010.

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[Copyrighted Material Omitted]

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ARGUED:

Elizabeth K. Russo, Russo Appellate Firm, P.A., Miami, Florida, for Appellants.

Todd S. Page, Stoll KeenonOgden PLLC, Lexington, Kentucky, Douglas W. Langdon, Frost Brown Todd LLC, Louisville, Kentucky, for Appellees.

ON BRIEF:

Elizabeth K. Russo, Russo Appellate Firm, P.A., Miami, Florida, for Appellants.

Todd S. Page, Stoll KeenonOgden PLLC, Lexington, Kentucky, Douglas W. Langdon, Charles S. Cassis, Susan Simpson Wettle, Frost Brown Todd LLC, Louisville, Kentucky, for Appellees.

Before: KENNEDY, COLE, and GRIFFIN, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

In this diversity suit, plaintiffs, who are past and present Wal-Mart employees and their spouses, allege injuries caused by exposure to carbon monoxide gas in the enclosed freezer section of a Wal-Mart Distribution Center during a two-week period in November and December 2005. One group of plaintiffs-the original plaintiffs-filed suit within one year of the date of last exposure to the gas, while the other group of plaintiffs-the new plaintiffs-did not. In this appeal, the new plaintiffs challenge the district court's dismissal of their claims as time-barred under the one-year statute of limitations period in Kentucky Revised Statutes Annotated § 413.140. They argue that the district court erred in holding that (1) their claims did not relate back to the filing date of the original plaintiffs' claims under Rule 15(c) of the Federal Rules of Civil Procedure, and (2) the discovery rule did not toll the limitations period. We disagree and affirm.

I.

In its appealed order granting summary judgment to defendants Unarco Material Handling, Inc. (" Unarco"), and Atlas Material Handling, Inc. (" Atlas"), the district court accurately set forth the relevant facts:

This action arises out of an alleged discharge of carbon monoxide gas in the enclosed freezer section of the Wal-Mart Distribution Center (the " Distribution Center") in London, Kentucky, between November 29 and December 12, 2005. The Plaintiffs contend that the work performed in the evenings by Atlas and Unarco caused the discharge, resulting in the Plaintiffs' injuries. More specifically, the Plaintiffs assert that Atlas and Unarco acted negligently in operating propane-powered welders inside the Distribution Center, resulting in their exposure to carbon monoxide gas. The Plaintiffs are all either past or present employees of the Distribution Center and their spouses.

The Plaintiffs initially filed their Complaint on November 21, 2006, in the

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Laurel Circuit Court alleging claims for negligence and loss of consortium.

The Defendants then removed the action to this Court [based upon diversity of citizenship jurisdiction]. Thereafter, on March 22, 2007, the Plaintiffs filed a motion for leave to file an Amended Complaint to add thirty-three plaintiffs 1 to the action. The Court granted the motion on July 17, 2007.

_________________________

1. The Plaintiffs who asserted claims for the first time in the Amended Complaint are: Stephen King, Anna McClure, George Hibbard, Ricky Trent, Kathy Trent, Jeff Wagers, Angela Wagers, Timothy Burns, Theresa Burns, Bobby Allen, Tracy Allen, Justin Gomez, James Helton, Jamey Hill, Chrystal Hill, Clifford Sage, Kimberly Sage, Billy Rhodes, Jamie Rhodes, Danny Pittman, Gary Patterson, Barry Lockard, Mildred Lockard, Bennie Swift, Sarah Swift, Cecil Spurlock, Elaine Spurlock, Sean Shupe, Glenna Shupe, Stephen Bush, Lora Bush, Dora Keley, and Humberto Alvarado.

_________________________

Subsequently, in November 2007 and January 2008, eleven of the newly-added Plaintiffs filed notices and/or stipulations of voluntary dismissal of their claims. Additionally, the Court granted Atlas' and Unarco's motion for summary judgment as to Plaintiff Jamie Rhodes' claim for loss of consortium on May 16, 2008. As a result, only twenty-one Plaintiffs who first asserted their claims in the Amended Complaint currently remain in this action. They are: Stephen King, Anna McClure, Ricky Trent, Kathy Trent, James Helton, Jamey Hill, Chrystal Hill, Clifford Sage, Kimberly Sage, Billy Rhodes, Danny Pittman, Gary Patterson, Bennie Swift, Sarah Swift, David Spurlock, Elaine Spurlock, Sean Shupe, Glenna Shupe, Stephen Bush, Lora Bush, and Dora Keley (collectively, the " new Plaintiffs").

In their motions for summary judgment against the new Plaintiffs, Atlas and Unarco contend that any claims asserted for the first time in the Amended Complaint are barred by Kentucky's one year statute of limitations, KRS § 413.140. According to Atlas and Unarco, the new Plaintiffs learned of their injuries and had reason to know that any injuries could have been caused by the exposure to carbon monoxide gas in December 2005. Therefore, Atlas and Unarco contend that the statute of limitations expired on their claims in December 2006, and the claims asserted for the first time in the Amended Complaint in March 2007 are time-barred.

In response, the new Plaintiffs assert that the Amended Complaint should relate back to the original Complaint under Federal Rule of Civil Procedure 15. Further, the new Plaintiffs contend that, even if the Amended Complaint does not relate back, the time for filing any claims against Atlas and Unarco is governed by Kentucky's discovery rule because the new Plaintiffs did not discover the permanent nature and cause of their injuries until 2007.

In granting summary judgment to Unarco and Atlas, the district court held that the new plaintiffs' claims were barred by the one-year statute of limitations period in Kentucky Revised Statutes Annotated § 413.140. In so ruling, the district court rejected the new plaintiffs' contentions that (1) their claims related back to the filing date of the original complaint under Rule 15(c) of the Federal Rules of Civil Procedure, and (2) the discovery rule tolled the one-year limitations period. In addition, the district court held that the consortium claims asserted by the new

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plaintiffs' spouses were likewise untimely because they were derivative of the underlying bodily injury claims.

Unarco and Atlas reached settlements with the original plaintiffs, and...

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