Branstad v. Kinstler

• Decision Date: 05 July 2005
• Docket Number: No. WD 64418.,WD 64418.
• Parties: Monroe BRANSTAD, d/b/a Branstad Farms, Appellant, v. John David (Red) KINSTLER, Respondent.
• Court: Missouri Supreme Court

166 S.W.3d 134

Monroe BRANSTAD, d/b/a Branstad Farms, Appellant, v. John David (Red) KINSTLER, Respondent.

No. WD 64418.

Missouri Court of Appeals, Western District.

July 5, 2005.

Michael F. Brady, Overland Park, KS, for appellant.

Jayson B. Lenxo, St. Charles, MO, for respondent.

Before EDWIN H. SMITH, C.J., HAROLD L. LOWENSTEIN and ROBERT G. ULRICH, JJ.

ROBERT G. ULRICH, Judge.

Monroe Branstad appeals the judgment of the trial court dismissing his action against Red Kinstler for negligent misrepresentation based on the running of the statute of limitations. Mr. Branstad claims that the trial court incorrectly computed the date from which the cause of action accrued and the statute of limitations began to run. The judgment is reversed, and the case is remanded for further proceedings.

Facts

Mr. Branstad's petition, filed November 17, 2003, alleges that he boarded approximately 783 head of cattle with RPR Ranch for care and feeding in accordance with the contract between the two entities and that while the cattle were boarded with RPR Ranch approximately 120 cows died due to acorn poisoning and the remaining cattle failed to gain weight because they, too, were affected by acorn poisoning, thereby further reducing Mr. Branstad's realized income when they were sold. Mr. Branstad's petition claims that he consulted with Red Kinstler, an agent for Shelter Mutual Insurance Company, RPR Ranch's insurer, before he placed the cattle; he was assured by Mr. Kinstler that RPR Ranch's policy covered him and RPR Ranch against the loss of his cattle; he reasonably relied on Mr. Kinstler's assurances; and, therefore, he did not seek additional insurance. Coverage for the loss of the cattle was ultimately denied by Shelter, and the Circuit Court of Randolph County upheld the denial of coverage on February 18, 1999, in a declaratory judgment action filed by Shelter against the owner of RPR Ranch on September 16, 1997. Finally, Mr. Branstad's petition alleges that due to Mr. Kinstler's reckless misrepresentations to him that the Shelter policy covered such a loss that occurred, Mr. Branstad suffered damages.

Mr. Kinstler filed a motion to dismiss arguing that the death of the cattle occurred sometime between May 1996 and November 1996 and that the five-year statute of limitations of section 516.120¹ expired in November 2001. Mr. Branstad filed a response to the motion to dismiss. Following argument on the motion, the trial court entered judgment dismissing the petition finding that the cause of action accrued in November 1996 when the cattle died and, therefore, that the action was time barred. This appeal by Mr. Branstad followed.

Standard of Review

Whether the statute of limitations applies to an action is a question of law that is reviewed de novo. Braun v. Petty, 129 S.W.3d 449, 451 (Mo.App. E.D. 2004). "[W]here a statute of limitations is asserted in support of a motion to dismiss, the petition should not be dismissed unless the petition clearly establishes on its face and without exception that it is time barred." Yahne v. Pettis County Sheriff Dep't, 73 S.W.3d 717, 719 (Mo.App. W.D.2002)(citing Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995)).

Discussion

The parties do not dispute that the five-year statute of limitations of section 516.120(4) applies in this case.² Rather, the dispute involves when Mr. Branstad's cause of action accrued to begin the running of the statute of limitations. A cause of action accrues for purposes of section 516.120 when damage is sustained and capable of ascertainment. § 516.100; Olean Assocs., Inc. v. Knights of Columbus, 5 S.W.3d 518, 521-22 (Mo.App. E.D. 1999). Section 516.100 provides in pertinent part:

[F]or the purposes of section 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment....

Damage is capable of ascertainment when it can be discovered or made known, even though the amount of damages is not then ascertainable. Olean, 5 S.W.3d at 522. The phrase "capable of ascertainment" refers to the fact of damage, not the precise amount of damage. Nuspl v. Mo. Med. Ins. Co., 842 S.W.2d 920, 922 (Mo.App. E.D.1992).

The Nuspl case is similar to this case and is instructive. In Nuspl, the plaintiffs were the parents of a child whom they claimed suffered injury at birth because of the medical malpractice of the attending obstetrician and that resulted in death approximately seventeen years later. Plaintiffs obtained judgment against the physician. They, by contract with the physician, became the assignees of the physician's cause of action against his medical malpractice insurance carrier that had denied coverage. The assignees added as a party defendant the agent who sold the policy to the physician, alleging his negligent failure to obtain adequate coverage. 842 S.W.2d at 921. The agent argued that the statute of limitations of section 516.120 barred the suit. Applying the normal rule of contract law that an assignee "stands in the shoes" of the assignor so that a defense valid against the assignor is also effective against the assignee, Doss v. EPIC Healthcare Mgmt. Co., 901 S.W.2d 216, 222 (Mo.App. S.D. 1995), the agent argued that the cause of action accrued either when the policy was delivered to the physician or when the plaintiffs' suit against the physician was filed. Nuspl, 842 S.W.2d at 922. Plaintiffs contended that the cause accrued when coverage was denied. Id. at 923. The Eastern District agreed with plaintiffs explaining that the physician could not have been aware of any damage when the policy was delivered because he was entitled to rely on his insurance agent to procure the requested insurance and had no duty to double-check the expert's work. Id. at 922. For the same reasons, the physician had no way of knowing at the time the suit against him was...