Tollison v. B & J Machinery Co., Inc., 6:92-277-20

• Citation: 812 F. Supp. 618
• Decision Date: 08 February 1993
• Docket Number: 6:92-278-20.,No. 6:92-277-20,6:92-277-20
• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Parties: Evelyn S. TOLLISON and James Tollison, Plaintiffs, v. B & J MACHINERY COMPANY, INC., and Travelers Insurance Company, Defendants.

812 F. Supp. 618

Evelyn S. TOLLISON and James Tollison, Plaintiffs,
v.
B & J MACHINERY COMPANY, INC., and Travelers Insurance Company, Defendants.

Nos. 6:92-277-20, 6:92-278-20.

United States District Court, D. South Carolina, Greenville Division.

February 8, 1993.

Barney O. Smith, Jr., Greenville, SC, for plaintiffs.

Ellis M. Johnston, II, and Matthew P. Utecht, Greenville, SC, for Travelers Ins. Co.

William U. Gunn, Spartanburg, SC, for B & J Machinery.

ORDER

HERLONG, District Judge.

This matter is before the court on the motion of the defendant, Travelers Insurance Company ("Travelers"), for a judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c). The basis of the motion is an assertion that the claim against Travelers is barred by the statute of limitations.

Evelyn Tollison ("Tollison") was severely injured on March 28, 1989, when her left arm became entangled in a carpet beveling

812 F. Supp. 619

machine at her place of employment. Tollison filed this action on February 19, 1992.¹ The original complaint asserted claims for negligence, breach of warranty, and strict liability. It named Tollison's employer and B & J Machinery Company, Inc. as the defendants.² On November 3, 1992, Tollison filed an amended complaint which added Travelers as a defendant and asserts a claim of negligence against Travelers. The basis of the claim against Travelers is that it inspected the facility where Tollison was injured and failed to identify and report to her employer the danger which led to Tollison's injuries

Travelers contends that it is entitled to a judgment on the pleadings because the claim against it is barred by the statute of limitations. "The test applicable for judgment on the pleadings is whether or not, when viewed in the light most favorable to the party against whom the motion is made, genuine issues of material fact remain or whether the case can be decided as a matter of law." Smith v. McDonald, 562 F.Supp. 829, 842 (M.D.N.C. 1983), aff'd, 737 F.2d 427 (4th Cir.1984), aff'd, 472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985). When a defendant moves for a judgment on the pleadings, the well pleaded factual allegations of the complaint are taken as true, but those of the answer are taken as true only when they are not denied or do not conflict with the complaint. Jadoff v. Gleason, 140 F.R.D. 330, 331 (M.D.N.C.1991); 5A C. Wright & A. Miller, Federal Practice and Procedure § 1368 at 520 (1990). A motion under Rule 12(c) is an appropriate procedure when the statute of limitations is alleged to provide an effective bar against a plaintiff's claims. 5A C. Wright & A. Miller, Federal Practice and...