Anson v. American Motors Corp.
| Decision Date | 31 March 1987 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 155 Ariz. 420,747 P.2d 581 |
| Parties | , 56 USLW 2380, Prod.Liab.Rep. (CCH) P 11,357 Richard M. ANSON, Sr., and Roberta Anson, surviving parents of Richard M. Anson, Jr., Plaintiffs-Appellants, v. AMERICAN MOTORS CORPORATION, a Delaware corporation; American Motors Sales Corporation, a subsidiary of American Motors Corporation; Jeep Corporation, a subsidiary of American Motors Corporation; Phoenix American Jeep, an Arizona corporation, Defendants-Appellees. 7625. |
| Court | Arizona Court of Appeals |
The question presented for our review is whether the trial court properly granted appellees' motion to dismiss appellants' wrongful death action on the ground that the applicable statute of limitations had expired. We remand the matter to the trial court because we find that a factual issue existed for the jury to decide as to whether the appellants exercised reasonable diligence in the discovery of facts giving rise to a cause of action. In addition, a factual issue is present whether the appellees fraudulently concealed information which hindered the appellants' ability to discover a causal relationship between their son's death and the defect in the motor vehicle manufactured by the appellees.
The affirmative defense of statute of limitations is properly raised in a motion to dismiss where it appears from the face of the complaint that the claim is barred. Dicenso v. Bryant Air Conditioning Co., 131 Ariz. 605, 606, 643 P.2d 701, 703 (1982). The party opposing the motion then bears the burden of proving the statute has been tolled. Bailey v. Superior Court, 143 Ariz. 494, 498, 694 P.2d 324, 328 (1985). The trial court should not grant a motion to dismiss unless it appears certain plaintiff will not be entitled to relief under any set of facts susceptible of proof under the claims stated. Red Carpet-Barry & Assoc., Inc. v. Apex Assoc., Inc., 130 Ariz. 302, 635 P.2d 1224 (1981). In reviewing the propriety of an order dismissing a complaint this court must consider all facts alleged in the complaint as true, id. 130 Ariz. at 303, 635 P.2d at 1225, and determine whether the complaint, construed in a light most favorable to the plaintiff, sufficiently sets forth a valid claim. Savard v. Selby, 19 Ariz.App. 514, 515, 508 P.2d 773, 774 (1973).
On June 27, 1979, appellants' son died from injuries sustained when the American Motors Jeep CJ-7 he was driving went out of control and overturned on Rural Road in Tempe. Appellants' second amended complaint states decedent lost control of the vehicle as he "attempted to move said vehicle to the left," and that while attempting this maneuver, the jeep, "because of defective design and mechanical malfunction, went out of control, flipped and overturned, thereby causing internal and external injuries to decedent ... and as a proximate result of said injuries, Richard M. Anson, Jr., died." Appellants' response to appellees' motion to dismiss further explains decedent's jeep "pitched forward and rolled over" as decedent attempted to maneuver around a puddle of water located in his path on Rural Road. The response states that "[t]he Jeep's rollbar collapsed and contributed to the massive head injuries and instant death of" the decedent.
On March 8, 1982, appellants brought this wrongful death action against appellees American Motors Corporation and two of its subsidiaries (collectively referred to hereinafter as AMC), and Phoenix American Jeep for the death of their son. Appellants' second amended complaint sets forth seven theories of relief, including strict liability in tort, misrepresentation pursuant to Restatement (Second) of Torts § 402B, breach of express and implied warranties negligence, fraudulent misrepresentation and a claim for punitive damages. Briefly summarized, appellants' complaint alleges that: (1) the jeep in question had a propensity to overturn, and its roll bar, although represented as a safety feature, was structurally inadequate to protect the driver from serious head injuries; (2) these defects in design and manufacture rendered the jeep inherently and unreasonably dangerous absent adequate or suitable warnings; (3) AMC made representations regarding the safety and "ruggedness" of the jeep and its roll bar when operated on all types of terrain; (4) appellants and their son made specific inquiries with employees of Phoenix American Jeep regarding the vehicle and received assurances it was roadworthy for the maneuvering circumstances its driver would encounter; (5) appellants relied on the representations of both AMC and Phoenix American Jeep in purchasing the vehicle; and (6) both AMC and Phoenix American Jeep knew or should have known of the dangerous nature of the vehicle and that their representations were false.
With regard to computation of the limitations period, the complaint alleges in relevant part that: (1) appellants were first apprised of the jeep's alleged defects by a "60 Minutes" television program broadcast in December, 1980; (2) in December, 1981, AMC entered into a consent decree with the Federal Trade Commission pursuant to which it agreed to place warning stickers on future jeeps and in owner's manuals which provided that "sudden sharp turns and abrupt maneuvers may result in loss of control" and further agreed to send these stickers and manuals to registered owners of Jeep CJ's manufactured after 1972; (3) AMC represented the jeep as a safe vehicle and denied any defects existed in the design of the jeep prior to and after the airing of the "60 Minutes" broadcast until after the date of the FTC order; and (4) because of the fraud and misrepresentations of appellees, the statute of limitations in this case did not begin to run, if at all, until AMC entered into the consent decree with the FTC.
The trial court granted appellees' motion to dismiss by formal order dated January 9, 1984 "by reason of statute of limitations." We have jurisdiction of this appeal pursuant to A.R.S. § 12-2101(B).
Appellants' claims fall within the broad definition of "product liability action" as defined in A.R.S. § 12-681(3):
'Product liability action' means any action brought against a manufacturer or seller of a product for damages for bodily injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, installation, preparation assembly, testing, packaging, labeling, sale, use or consumption of any product, the failure to warn or protect against a danger or hazard in the use or misuse of the product or the failure to provide proper instructions for the use or consumption of any product.
The statute of limitations for a "product liability action" is set forth in A.R.S. § 12-551, and provides, with a certain inapplicable exception, that a "product liability action as defined in § 12-681 shall be commenced and prosecuted within the period prescribed in § 12-542." Arizona Revised Statutes § 12-542, in turn, provides in relevant part:
[T]here shall be commenced and prosecuted within two years after the cause of action accrues, and not afterward, the following actions:
1. For injuries done to the person of another.
2. For injuries done to the person of another when death ensues from such injuries, which action shall be considered as accruing at the death of the party injured.
Cf., Mack v. A.H. Robins Co., Inc., 573 F.Supp. 149 (D.Ariz.1983), aff'd, 759 F.2d 1482 (9th Cir.1985) ().
The language of A.R.S. § 12-542(2) specifically defines the date a wrongful death action "accrues" for purposes of commencing the limitations period as the date of death. Arizona Revised Statutes § 12-542(1), the statute of limitations for "injuries done to the person of another," contains no such legislative definition of the word "accrues." In cases involving that and other sections of A.R.S. § 12-542, the term has been held as a matter of judicial construction to embody the so-called "discovery rule." Pursuant to the discovery rule, a cause of action does not "accrue" until a plaintiff discovers or by the exercise of reasonable diligence should have discovered that he or she has been injured by the defendant's negligent conduct. See Kenyon v. Hammer, 142 Ariz. 69, 73, 688 P.2d 961, 965 (1984).
Appellants' original complaint was filed March 8, 1982, more than two years and eight months after their son's death on June 17, 1979. Appellants argue that despite the express language of A.R.S. § 12-542(2) their complaint set forth facts sufficient to withstand appellees' motion to dismiss.
Appellants first argue our supreme court's decision in Kenyon v. Hammer, supra, requires application of the discovery rule to this wrongful death action. Appellants also argue that even if the discovery rule is inapplicable and the statute of limitations commenced to run at death, the limitations period was tolled by appellees' fraudulent concealment of their claims. We consider appellants' arguments in this order.
Briefly stated, appellants' argument based on Kenyon v. Hammer is that to deny the benefits of the discovery rule to some product liability claimants (i.e. statutory beneficiaries of a wrongful...
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