American Family Ins. v. Waupaca Elevator Co. , 20110198.

• Decision Date: 12 January 2012
• Docket Number: No. 20110198.,20110198.
• Citation: 2012 ND 13,809 N.W.2d 337
• Parties: AMERICAN FAMILY INSURANCE and Prairie West Apartments I, a limited partnership, and Valley Rental Service, Inc., Plaintiffs and Appellants, v. WAUPACA ELEVATOR COMPANY, INC., Defendant and Appellee.
• Court: North Dakota Supreme Court

2012 ND 13

809 N.W.2d 337

AMERICAN FAMILY INSURANCE and Prairie West Apartments I, a limited partnership, and Valley Rental Service, Inc., Plaintiffs and Appellants,

v.WAUPACA ELEVATOR COMPANY, INC., Defendant and Appellee.

No. 20110198.

Supreme Court of North Dakota.

Jan. 12, 2012.

Steven F. Lamb, American Family Insurance, Fargo, N.D., for plaintiffs and appellants.

Gordon H. Hansmeier, St. Cloud, MN, for defendant and appellee.

SANDSTROM, Justice.

[¶ 1] American Family Insurance, Prairie West Apartments I, a limited partnership, and Valley Rental Service, Inc. (“American Family”) appeal from a judgment dismissing with prejudice negligence and strict liability claims against Waupaca Elevator Company, Inc., on the basis that American Family did not begin its action against Waupaca Elevator within the six-year statute of limitations. We reverse the judgment and remand for further proceedings, concluding American Family properly served its summons and complaint upon Waupaca Elevator within the statute of limitations.

I

[¶ 2] On December 30, 2010, American Family sued Waupaca Elevator, a Wisconsin corporation with its principal place of business in Outagamie County, Wisconsin, alleging an elevator designed, manufactured, marketed, and sold by Waupaca Elevator damaged American Family's apartment building in West Fargo on December 30, 2004. American Family faxed a copy of its summons and complaint to the Outagamie County Sheriff's Department in Appleton, Wisconsin, and instructed the sheriff's department to serve both documents upon Waupaca Elevator after receiving the original documents by certified mail. The sheriff's department acknowledged receipt of the fax the same day by stamping the cover letter. Also on December 30, American Family mailed the original summons and complaint to the sheriff's department and sent a copy of both documents by certified mail to Larry Rice, an agent of Waupaca Elevator. On January 4, 2011, after receiving the original summons and complaint by certified mail, the sheriff's department personally served both upon William McMichael, an officer of Waupaca Elevator. Rice also signed for and received a copy of the summons and complaint by certified mail on January 4, 2011.

[¶ 3] Waupaca Elevator moved to dismiss the action, claiming American Family served the complaint insufficiently and outside the six-year statute of limitations for a tort action. American Family responded the statute of limitations countdown began to run on December 31, 2004, the day after the action accrued, and argued it timely served the complaint upon Waupaca Elevator on December 30, 2010.

[¶ 4] After a hearing on Waupaca Elevator's motion to dismiss, the district court dismissed American Family's complaint with prejudice, concluding American Family did not begin the action within the six-year statute of limitations.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27–05–06. American Family timely appealed under N.D.R.App.P. 4(a). We have jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28–27–01.

II

[¶ 6] American Family argues it served the summons and complaint upon Waupaca Elevator within the six-year statute of limitations and the district court erred in calculating the beginning and ending dates of the statute of limitations. American Family argues the district court failed to exclude the date the action accrued, December 30, 2004, in calculating the date from which to begin the statute of limitations and the district court failed to include the date six years after the date of accrual, December 30, 2010, the “last day,” in calculating the deadline by which American Family had to serve its complaint. American Family argues it properly and timely delivered the summons and complaint to the Outagamie County Sheriff's Department on December 30, 2010, to be served upon Waupaca Elevator, as allowed by statute.

[¶ 7] A motion to dismiss on the pleadings must be treated as one for summary judgment if matters outside the pleadings are presented to and not excluded by the district court. N.D.R.Civ.P. 12(d). Here the district court considered matters outside the pleadings, and both parties agree the district court treated Waupaca Elevator's motion to dismiss on the pleadings as a motion for summary judgment.

[¶ 8] “Summary judgment is a procedure for promptly resolving a controversy without a trial if the evidence shows there are no genuine issues as to any material fact and any party is entitled to judgment as a matter of law.” Gratech Co., Ltd. v. Wold Eng'g, P.C., 2003 ND 200, ¶ 8, 672 N.W.2d 672; N.D.R.Civ.P. 56(c). “ ‘Even if a factual dispute exists, summary judgment is proper if the law is such that resolution of the factual dispute will not change the result.’ ” Id. (quoting Koapke v. Herfendal, 2003 ND 64, ¶ 11, 660 N.W.2d 206). The standard of review for a district court's grant of summary judgment is de novo. Lucas v. Riverside Park Condominiums Unit Owners Ass'n, 2009 ND 217, ¶ 16, 776 N.W.2d 801. The evidence is reviewed in a light most favorable to the party opposing summary judgment. Makeeff v. City of Bismarck, 2005 ND 60, ¶ 12, 693 N.W.2d 639.

A

[¶ 9] American Family argues it served the summons and complaint upon Waupaca Elevator within the general six-year statute of limitations for tort actions under N.D.C.C. § 28–01–16, which provides:

The following actions must be commenced within six years after the claim for relief has accrued:

....

5. An action for criminal conversation or for any other injury to the person or rights of another not arising upon contract, when not otherwise expressly provided.

“The purpose of a statute of limitation is to prevent ‘plaintiffs from sleeping on their legal rights to the detriment of the defendants.’ ” Erickson v. Scotsman, Inc., 456 N.W.2d 535, 537 (N.D.1990) (quoting Hanson v. Williams County, 389 N.W.2d 319, 321 (N.D.1986)). “Thus, statutes of limitation are designed to prevent the plaintiff's enforcement of stale claims when, through the lapse of time, evidence regarding the claim has become difficult to procure or even lost entirely.” Id.

[¶ 10] American Family argues the district court erroneously calculated the six-year statute of limitations. It argues N.D.R.Civ.P. 6(a) applies when calculating the beginning and ending dates for its claims.

[¶ 11] The explanatory note to N.D.R.Civ.P. 6(a) states the rule was amended effective March 2011 to simplify and clarify the provisions describing the computation of deadlines. The 2011 amendments to N.D.R.Civ.P. 6(a), however, created no substantive changes that apply here. Consequently, we reach the same result under both versions of the rule. Because the 2011 amendments to N.D.R.Civ.P. 6(a) were not in effect before American Family's claimed injuries or when American Family mailed the summons and complaint to the Outagamie County Sheriff's Department on December 30, 2010, we apply the former N.D.R.Civ.P. 6(a), which provided:

In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run may not be included. The last day of the period so computed must be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.

See also State v. Dimmler, 456 N.W.2d 297, 298 (N.D.1990) (all statutes are applied prospectively unless clearly expressed otherwise, and the statute in effect at the time of the cause of action applies). Section 1–02–15, N.D.C.C., also applies to the computation of time, providing:

The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last is a holiday, and then it also is excluded. If a number of months is to be computed by counting the months from a particular day, the period ends on the same numerical day in the concluding month as the day of the month from which the computation is begun, unless there are not that many days in the concluding month, in which case the period ends on the last day of that month.

[¶ 12] American Family argues N.D.R.Civ.P. 6(a) and N.D.C.C. § 1–02–15 support its calculation that it could serve the summons and complaint upon Waupaca Elevator as late as December 30, 2010. In its motion to dismiss, Waupaca Elevator argued the date of injury, December 30, 2004, began the six-year statute of limitations on American Family's claims and asserted the statute of limitations expired on December 29, 2010. Waupaca Elevator also argued American Family did not comply with the statute of limitations when it attempted to serve Waupaca Elevator through the Outagamie County Sheriff's Department and by certified mail on December 30, 2010.

[¶ 13] The district court agreed with Waupaca Elevator, concluding American Family did not serve the summons and complaint upon Waupaca Elevator until January 4, 2011, the date the Outagamie County Sheriff's Department personally served an officer of Waupaca Elevator and the date an agent of Waupaca Elevator received the summons and complaint by certified mail. The district court alternatively decided that even if American Family served Waupaca Elevator on December 30, American Family still did not serve the summons and complaint “within” the six-year statute of limitations. In deciding whether American Family timely served the summons and complaint on the last day of the six-year statute of limitations, the district court relied on its interpretation of the word “within,” used under N.D.C.C. § 28–01–16, as it is understood in the English language. The district court stated, “[W]ithin six years, to me, means inside of, less than.” The district court reasoned it could not find any authority clearly...