Drake v. B.F. Goodrich Co.

Decision Date05 February 1986
Docket NumberNo. 84-5665,84-5665
Citation782 F.2d 638
PartiesRICO Bus.Disp.Guide 6163 Laurin (Kitterman) DRAKE; Roberta (Kitterman) McDaniel; Elizabeth Kitterman, as next of kin, survivors and personal representatives of Robert Kitterman, Deceased; and Kenneth Peerenboom; Joseph Peerenboom; David Peerenboom; Jerry Peerenboom; Betty Peerenboom, as next of kin, survivors and representatives of Clarence Peerenboom, Deceased; and Edgar Adkins, Fay Adkins, Personally and as next friend of Deborah and Bradford Adkins, Infants, Plaintiffs-Appellants, v. B.F. GOODRICH COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Edward F. Harrington, Jr. (argued), Radolovich, Harrington & Levy, Louisville, Ky., for plaintiffs-appellants.

Stephen F. Schuster (argued), Ogden, Robertson & Marshall, Louisville, Ky., for defendant-appellee.

Before KEITH, KENNEDY and KRUPANSKY, Circuit Judges.

KEITH, Circuit Judge.

Plaintiffs appeal the district court order granting summary judgment to defendant B.F. Goodrich Company (BFG) in these personal injury and wrongful death actions. In each of the three consolidated cases, the plaintiffs alleged that they and/or their decedents were exposed to toxic chemicals while they or their decedents were employees of BFG at its plant in Louisville, Kentucky. The plaintiffs allege that the defendant intentionally, with wanton disregard for the health of plaintiff and plaintiffs' decedents', concealed the serious health hazards associated with working in an environment containing vinyl chloride ("VC"). Plaintiffs allege that exposure to VC resulted in sickness, poisoning and emotional distress. In the cases involving Clarence Peerenboom and Robert Kitterman, plaintiffs' allege that exposure to VC resulted in the deaths of Peerenboom and Kitterman. The trial court refused to allow plaintiffs to amend their complaints to assert RICO violations. Furthermore, the trial court dismissed the plaintiffs' personal injury and wrongful death actions because they were barred by Kentucky statutes of limitation. We affirm the district court's judgment for the reasons set forth below.

The Peerenboom Plaintiffs

In 1974, Clarence Peerenboom filed a workers' compensation claim stating that he had been injured by VC while working for BFG. Voluntary workers' compensation payments were made to him by BFG from 1974 to 1980 in the amount of $26,388. Peerenboom died on October 16, 1980. His widow continues to draw weekly workers' compensation payments in the amount of $69.75. No personal representative for the estate has ever been appointed. When the workers' compensation complaint was filed, and again when the award was made, the Peerenbooms claim they were informed by BFG (workers' compensation personnel) and defendant's union attorney that they had no other legal course of action. On November 16, 1981, thirteen months after Mr. Peerenboom died, Mrs. Peerenboom filed suit as survivor and purported personal representative.

The Kitterman Plaintiffs

On July 23, 1976, Robert Kitterman filed a workers' compensation claim stating that he had been injured by VC while working at BFG and that he discovered his condition in the fall of 1973. BFG contested the claim. The claim was denied because it was not a work related injury. Mr. Kitterman died on June 24, 1980. An autopsy revealed angiosarcoma of the liver. After his death, a workers' compensation award was made to his family. Like Mrs. Peerenboom, Mrs. Kitterman also dispensed with the administration of her husband's estate. No personal representative has ever been appointed for Robert Kitterman's estate. Mrs. Kitterman claims that she was advised on several occasions by agents of BFG, that she only had workers' compensation as a legal remedy. Mrs. Kitterman also contends the attorney for the defendant's union advised her that workmen's compensation was her exclusive remedy. Mrs. Kitterman filed this wrongful death action as the survivor and purported personal representative of Robert Kitterman.

The Adkins Plaintiffs

In May 1974, Edgar Adkins filed a workers' compensation claim alleging that he was injured by exposure to VC and loud noise while working for BFG. In his application, he stated that he had liver and internal damage. Mr. Adkins sought counsel from his lawyer in 1974 regarding any other claims he might have against BFG. On April 14, 1982, eight years after he learned of the injury, Mr. Adkins filed this personal injury action. The Adkins' also claim that they were informed by the attorney for defendant's union that the only legal recourse they had for the injuries sustained by Mr. Adkins was workers' compensation.

Procedural History

On January 13, 1984, BFG moved for summary judgment in all three cases based on the statutes of limitations for personal injury and wrongful death actions. In an attempt to avoid the statutes of limitations, plaintiffs moved to amend their complaints to include allegations based on the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sec. 1961, et seq. ("RICO"). The trial court granted BFG's motions for summary judgment in all three cases. The trial court also found that the plaintiffs presented no cognizable claims in their allegations regarding the RICO statute, and therefore denied their motions to amend initially and upon reconsideration. On appeal plaintiffs raise two issues. First, whether the district court erred in applying the statutes of limitations. Second, whether the district court erred in refusing to allow plaintiffs to amend their complaints to include RICO violations.

I. KENTUCKY'S STATUTE OF LIMITATIONS

Plaintiffs argue that the district court incorrectly applied the statutes of limitations for their personal injury claims and wrongful death actions. Moreover, plaintiffs argue that due to advice received from a union attorney and/or statements made by an employee in the employee relations department, BFG is estopped from relying on the statutes of limitations. We will address each of these arguments.

A. Person Injury Claims

On appeal plaintiffs contend that the district court erred in barring the personal injury claims pursuant to the statute of limitations. We do not agree. Kentucky Revised Statutes Sec. 413.140(1), provides a one year statute of limitations for personal injury claims. The statute begins to run from the date "the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant's conduct." Louisville Trust Co. v. Johns-Manville Products Corporation, 580 S.W.2d 497, 501 (Ky.1979). The cause of action accrues on the date of the injury to the person even though the full extent of the injury is not known for years later. Caudill v. Arnett, 481 S.W.2d 668 (Ky.1972).

The district court found that plaintiff and plaintiffs' decedents knew of their illnesses, the reasons for them, and who caused them in the years 1973 and 1974. The district court also found that the plaintiff and plaintiffs' decedents filed workers' compensation claims specifically alleging that the claims were for injuries and illnesses suffered as a result of exposure to vinyl chloride and chemicals at BFG's plant. Since it is uncontested that plaintiff and plaintiffs' decedents discovered their injuries and that these injuries may have been caused by the defendant between 1973-1974, we find that the district court did not err in holding that the one year statute of limitation had expired when plaintiffs filed suit in 1981 and 1982.

Plaintiffs argue that the statute of limitations begins to run not from the date of discovery of injuries and who was responsible for them, but rather from the date plaintiffs discovered that they had a cause of action. This argument was rebutted by the Supreme Court of Kentucky in Conway v. Huff, 644 S.W.2d 333 (Ky.1983). In Conway, the court held that the date with which the statute begins to run "obviously ... must be with the discovery that a wrong has been committed and not that the party may sue for the wrong." Conway, 644 S.W.2d at 334. Moreover, in Graham v. Harlin, Parker & Rudloff, 664 S.W.2d 945 (Ky.App.1983), the Kentucky Court of Appeals stated:

Perhaps it's true that appellant did not know she had a cause of action at that time, but that is immaterial. The knowledge that one has been wronged and by whom starts the running of the statute of limitations ... not the knowledge that the wrong is actionable.

664 S.W.2d at 947.

Thus, we find that the district court did not err in holding plaintiffs' personal injury actions were barred by Kentucky statute of limitations. To hold otherwise could vitiate the statute of limitations by allowing a plaintiff to plead a stale case merely because he did not see "the right lawyer" at the appropriate time, or by allowing a plaintiff to endlessly shop for a lawyer until he found one willing to take his case.

B. Plaintiffs' Wrongful Death Claims

Plaintiffs also contend that the district court erred in barring their wrongful death actions pursuant to the statute of limitations. Again we do not agree. Kentucky Revised Statutes Section 413.180 and Section 241 of the Kentucky Constitution both provide that actions for wrongful death "shall be prosecuted by the personal representative of the deceased person" unless otherwise provided for by law. Kentucky Revised Statute Section 411.130(1) provides that the "action shall be prosecuted by the personal representative of the deceased." It has been a long-standing requirement that the action must be filed by the legal personal representative of the estate within one year. Louisville & Nashville R.R. Co. v. Brantley's Administrator, 106 Ky. 849, 51 S.W. 585 (1899). Further, if no valid personal representative is appointed within one year of the date of death, any action for wrongful death dies. Fentzka's Adm'r v. Warwick Construction Co., ...

To continue reading

Request your trial
87 cases
  • Fleischhauer v. Feltner
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 31 Agosto 1989
    ... ... See e.g. Drake v. B.F. Goodrich, 782 F.2d 638, 644 (6th Cir.1986) ...         As a general rule, RICO ... ...
  • Iron Workers Local Union No. 17 v. Philip Morris, 1:97-CV-1422.
    • United States
    • U.S. District Court — Northern District of Ohio
    • 10 Septiembre 1998
    ... ... See, e.g., Genty v. Resolution Trust Corp., 937 F.2d 899, 918 (3rd Cir.1991); Drake v. B.F. Goodrich Co., 782 F.2d 638, 644 (6th Cir. 1986). "[T]he plaintiff only has standing if, ... ...
  • Fried v. Sungard Recovery Services, Inc.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 26 Septiembre 1995
    ... ... denied, 488 U.S. 981, 109 S.Ct. 531, 102 L.Ed.2d 562 (1988); Drake v. B.F. Goodrich Co., 782 F.2d 638 (6th Cir. 1986). The Third Circuit has held that claims for ... ...
  • National Asbes. Workers Med. Fund v. Philip Morris
    • United States
    • U.S. District Court — Eastern District of New York
    • 7 Septiembre 1999
    ... ... 1991); Grogan v. Platt, 835 F.2d 844, 848 (11th Cir.1988); Drake v. B.F. Goodrich Co., 782 F.2d 638, 643-44 (6th Cir.1986). But see Libertad v. Welch, supra, 53 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT