Couch v. Travelers Ins. Co.
| Citation | 551 F.2d 958 |
| Decision Date | 04 May 1977 |
| Docket Number | No. 75-3894,75-3894 |
| Parties | Larry COUCH, Plaintiff-Appellant, v. The TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Al Tidwell, John D. Self, Hamilton, Ala., for plaintiff-appellant.
Warren B. Lightfoot, Stanley D. Bynum, Birmingham, Ala., for Travelers.
Appeal from the United States District Court for the Northern District of Alabama.
Before MORGAN and RONEY, Circuit Judges, and KING *, District Judge.
In this suit by an injured employee against a Workmen's Compensation insurance carrier for breach of contract and tort for the carrier's failure to properly inspect the employer's premises, two questions are raised on appeal: first, whether the district court properly held that the one year statute of limitations in Alabama bars this action, the critical issue being whether the statute which suspends the operation of the limitation for a person under 21 applies to a 19-year-old married man, and second, whether the plaintiff successfully brought fraud into the case so as to toll the statute of limitations.
As to the first issue, we affirm on the basis of the reasoning set forth in the district court's opinion, attached as an appendix to this opinion.
As to the second ground for appeal, the plaintiff alleges that the court erred in granting a judgment on pleadings based on negligence when the plaintiff did not anticipate the defense of the statute of limitations and did not specifically allege in the original complaint that the limitations statute was tolled by defendant's fraud. Plaintiff thinks he should be allowed to amend his complaint to specifically allege fraud.
A review of the record reveals that plaintiff never successfully brought fraud into his claim.
On July 14, 1975, the defendant moved for reconsideration of its motion for judgment on the pleadings, which had been previously denied, based on the one year statute of limitations. The matter was heard on the motion docket on August 1, 1975, and the district court filed its opinion and final judgment on August 27, 1975.
After final judgment was entered, the plaintiff filed a motion on September 5, 1975, to add his employer, Minnesota Mining and Manufacturing Company, as a party defendant, and to file an amended complaint alleging that the defendants, 3M and Travelers, fraudulently prevented the plaintiff from filing suit in this case by assuring him that he would continue to be employed at his pre-injury pay, even though he could no longer perform the type of work he did prior to injury, if he would not file suit. He also moved the court to reconsider and to alter or amend the judgment in the case.
On September 22, 1975, the district judge considered the motion to reconsider and to alter or amend judgment, as well as the motion to add a defendant, and overruled them all.
The district court did not abuse its discretion in refusing to reopen the case after final judgment had been entered. Plaintiff knew as early as June 2, 1975, that Travelers relied on the one year statute of limitations to dispose of this matter.
A post-judgment motion is addressed to the discretion of the court. No discovery device was used to attempt to explore fraud. Plaintiff's voluminous interrogatories explore every facet of the case except fraud. As to the kind of fraud alleged in the complaint, plaintiff was in a position to raise this issue several months prior to final judgment. "A defeated litigant cannot set aside a judgment because . . . he failed to present on a motion for summary judgment all of the facts known to him that might have been useful to the court." 11 Wright & Miller, Federal Practice and Procedure : Civil § 2858. The facts that would support the general allegation of fraud were known to plaintiff at the This Court has previously stated:
time he filed suit and at the time Travelers raised the defense of the statute of limitations.
(A) district court does not abuse its discretion in refusing to allow amendment of pleadings to change the theory of a case if the amendment is offered after summary judgment has been granted against the party, and no valid reason is shown for failure to present the new theory at an earlier time.
Freeman v. Continental Gin Co., 381 F.2d 459, 470 (5th Cir. 1967). Plaintiff has failed to show any valid reason why he could not have addressed the issue of fraud tolling the statute of limitations prior to final judgment and thus, we must affirm the decision of the trial court on this discretionary matter.
AFFIRMED.
APPENDIX
IN THE UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
-----------------------------------------
LARRY G. COUCH, )
PLAINTIFF, )
VS. ) CA75-H-436-J
THE TRAVELERS INSURANCE )
COMPANY, ET AL., )
DEFENDANTS. )
This cause came on to be heard at a regularly scheduled motion docket on August 1, 1975, upon motion of defendant The Travelers Insurance Company asking the court to reconsider its ruling on the earlier filed motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The court has considered the motion, the pleadings, the affidavit and exhibits filed herein and is of the opinion that the motion for reconsideration is due to be granted and that the earlier filed motion for judgment on the pleadings should be reconsidered by the court as a motion by defendant for summary judgment in its favor and that as such it is due to be granted.
On March 26, 1975, Larry G. Couch, a citizen of Alabama, filed suit in the Circuit Court of the Twenty-Fifth Judicial Circuit of Alabama against The Travelers Insurance Company, a Connecticut corporation, with its principal place of business in said state. On April 11, 1975, the defendant duly removed the case to this court.
The plaintiff alleges in his complaint:
Thereafter plaintiff sets forth (most favorably construed from his viewpoint) a cause of action for breach of contract as follows:
Plaintiff then alleges the following cause of action in tort:
Plaintiff seeks to recover damages for his injuries which he sustained on July 19, 1973, while engaged in the performance of his employment duties at the 3M plant.
The court proceeds on the proposition that, for purposes of this motion, the allegations contained in plaintiff's complaint are true. Plaintiff's complaint reveals that plaintiff's injury and cause of action occurred on July 19, 1973; this lawsuit was not filed until March 26, 1975; therefore, plaintiff's negligence count is barred by the one year statute of limitations, Ala.Code, Title 7, § 26 (1958), unless plaintiff can demonstrate that he should be afforded the benefit of the "saving statute," Ala.Code, Title 7, § 36 (1958). The "saving statute" provides that any person who "at the time such right accrues (is) within the age of 21 years . . . shall have three years, or the period allowed by law for the bringing of such action if it be less than three years, after the termination of such disability to bring suit ....
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