Giraud v. Quincy Farm and Chemical

• Decision Date: 17 August 2000
• Docket Number: No. 18284-3-III.,18284-3-III.
• Citation: 102 Wash. App. 443,6 P.3d 104
• Parties: Paul and Angie GIRAUD, Sr., and their marital community, Appellants, v. QUINCY FARM AND CHEMICAL, a Washington corporation, Respondent.
• Court: Washington Court of Appeals

6 P.3d 104

102 Wash. App. 443

Paul and Angie GIRAUD, Sr., and their marital community, Appellants, v. QUINCY FARM AND CHEMICAL, a Washington corporation, Respondent.

No. 18284-3-III.

Court of Appeals of Washington, Division 3, Panel Five.

August 17, 2000.

Carl H. Hagens, Hagens, Berman, Seattle, for Appellants.

Michael R. Tabler, Nicolas L. Wallace, Schultheis & Tabler, Ephrata, for Respondent.

KURTZ, C.J.

In the spring of 1994, Paul Giraud, Sr., applied a herbicide to his potato crops. Immediately after the crops were sprayed, Mr. Giraud observed that the plants appeared damaged. He consulted with the representative of Quincy Farm and Chemical, who selected and supervised the application of the herbicide, and a representative of the company that manufactured the herbicide. According to Mr. Giraud, he was told that the damage to the potato crops was cosmetic and temporary, and that it should not affect his yield. When Mr. Giraud harvested his potato crops in the fall of 1994, he discovered substantial damage.

In July 1998, the Girauds learned that the application of the herbicide to their potato crops was inconsistent with the instructions on the herbicide's label. In September 1998, the Girauds received court permission to file an amended complaint in which they asserted causes of action alleging negligence and breach of warranty against Quincy Farm. Quincy Farm moved for summary judgment, contending that the claims were barred by the three-year negligence statute of limitations and the four-year warranty statute of limitations. The court granted the motion, and the Girauds appeal, contending that the discovery rule tolled the negligence statute of limitations and that the doctrine of fraudulent concealment tolled the warranty statute of limitations.

We conclude that the negligence statute of limitations was tolled by the discovery rule until the crops were harvested. Because the Girauds brought their negligence claim more than four years after they harvested the crops, we affirm the superior court's dismissal of the negligence cause of action. We further conclude that the doctrine of fraudulent concealment did not toll the warranty statute of limitations beyond July 1994 because the Girauds failed to use reasonable diligence in discovering the information they allege Quincy Farm withheld from them. Consequently, we affirm the superior court's dismissal of the breach of warranty cause of action.

FACTS

Paul Giraud, Sr., is an experienced potato farmer. In 1994, he planted three fields of potatoes, referred to as the Royal City, Hiri and Mattawa fields. After he planted his potato crops, he consulted John Biersner of Quincy Farm and Chemical regarding weed control for his potato crops. After these consultations, Mr. Giraud purchased a herbicide known as Prowl from Quincy Farm in late May 1994.

Mr. Giraud relied upon Mr. Biersner not only in selecting the herbicide but also in applying it to his fields. At Mr. Giraud's request, Mr. Biersner calibrated the sprinkler system, mixed the herbicide and applied the herbicide on the potato fields. Mr. Giraud's field hand monitored the Prowl application according to Mr. Biersner's instructions.

Prowl is manufactured by American Cyanamide. On the Prowl label, the manufacturer specifically cautions that the herbicide should not be applied to potato plants that are more than six inches tall. Based upon his prior experience with Prowl, Mr. Biersner applied the herbicide to Mr. Giraud's fields even though the potato plants were approximately eight to ten inches tall. According to Mr. Giraud, Mr. Biersner did not disclose to him the information that the application of Prowl to Mr. Giraud's potato fields was inconsistent with the manufacturer's instructions.

Within a day of the application, Mr. Giraud observed that many of the plants at the Mattawa field had become brittle and that the stems on some of these plants had broken. He noticed the same problem to a lesser degree at the Hiri fields. Shortly thereafter, Mr. Giraud contacted Mr. Biersner to express his concern that the Prowl application had caused damage to his fields. The two men met and inspected the Mattawa field. Later, in his deposition, Mr. Biersner testified that his inspection of the field revealed that there was a problem, which he characterized as "very unusual"; he further testified that he did not know the cause of the problem.

After this inspection, Mr. Biersner called a representative of American Cyanamide, Fred Watari, and asked him to respond to Mr. Giraud's concerns about the Prowl application. In July, Mr. Watari and Mr. Biersner met with Mr. Giraud and examined Mr. Giraud's potato crops. According to Mr. Biersner, Mr. Watari said that the Prowl application, combined with the high winds, had caused some damage to the plants, but that the damage was "cosmetic" in nature. He also said that the yield would not be adversely affected.

At this point, Mr. Giraud was uncertain as to the condition of his potato crops. In addition to the herbicide, he had applied fertilizer to the potato crops. Mr. Giraud testified in his deposition that he was "not sure what caused the problem. I was informed that the Prowl didn't cause me any problem as far as [the] quality of my potatoes.... There was several products put on and I'm not sure which one [caused the problem]. Everyone that—I was told that none of the products was capable of doing this to my potatoes."

In the months following the herbicide application, the potato fields regained most of their foilage and appeared to recover. Mr. Giraud began harvesting in late September and early October. The Royal City field was harvested first, and the crop appeared fine. The Hiri field was harvested next in mid- to late-October, and the potatoes were undersized. Near the end of October, Mr. Giraud dug three test loads of potatoes in the Mattawa field. The test loads revealed rough, misshapen and undersized potatoes that were unsuitable for the fresh market. The field was thereafter harvested, and the harvest yielded small and misshapen potatoes. The potatoes from all three fields were stored together in a warehouse. In May 1995, the Hiri field potatoes began rotting and ruined most of the crops with which they were stored.

Initially, the Girauds attributed the failure of their potato crops to the application of "adulterated" fertilizer. On October 20, 1997, the Girauds filed a lawsuit against Quincy Farm entitled "Class Action Complaint for Adulterated, Misbranded, Defective, Unmerchantable Sales of Commercial Fertilizer." During the course of that lawsuit, the Girauds hired a weed science expert, who investigated their claims against Quincy Farm and who concluded that the cause of the damage to the Girauds's potato crops was the application of Prowl to potato plants that were more than six inches tall. As a result of this development, in September 1998 the Girauds requested and received court permission to file an amended complaint. In the amended complaint, the Girauds allege negligence and breach of warranty claims against Quincy Farm. The Girauds concede that the amended complaint does not relate back to the original complaint because it alleges new causes of action.

Quincy Farm moved for summary judgment on the basis that the Girauds's claims were barred by the statute of limitations. The court granted the motion in a memorandum decision. The court concluded that in July 1994, Mr. Giraud realized his crop was bad due to something Quincy Farm did. As a result of this knowledge, the court ruled that the three- and four-year statutes of limitations for negligence and warranty claims, respectively, began to run as of July 1994, more than four years before the amended complaint was filed.

The Girauds appeal.

ANALYSIS

When reviewing an order for summary judgment, we engage in the same inquiry as the trial court, and will affirm if there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law. Wilson Court Ltd. Partnership v. Tony Maroni's, Inc., 134 Wash.2d 692, 698, 952 P.2d 590 (1998). All facts and reasonable inferences must be considered in a light most favorable to the nonmoving party, and all questions of law are reviewed de novo. Id.

Is the Girauds's negligence claim barred by the statute of limitations?

The statute of limitations for the negligence action is three years. RCW 4.16.080(2). A limitation period begins to run when the plaintiff's cause of action accrues. Malnar v. Carlson, 128 Wash.2d 521, 529, 910 P.2d 455 (1996). Usually, a cause of action accrues when the plaintiff suffers injury or damage. In re Estates of Hibbard, 118 Wash.2d 737, 744, 826 P.2d 690 (1992).

When a delay occurs between an injury and the plaintiff's discovery of it, the court may apply the discovery rule, provided the delay was not caused by the plaintiff sleeping on his rights. Crisman v. Crisman, 85 Wash.App. 15, 20, 931 P.2d 163 (1997). The discovery rule operates to toll the date of accrual until the plaintiff knows or, through the exercise of due diligence, should have known all the facts necessary to establish a legal claim. Id.; Allen v. State, 118 Wash.2d 753, 758, 826 P.2d 200 (1992). To invoke the discovery rule, the plaintiff must show that he or she could not have discovered the relevant facts earlier. G.W. Constr. Corp. v. Professional Serv. Indus. Inc., 70 Wash.App. 360, 367, 853 P.2d 484 (1993). Unless the facts are susceptible of only one reasonable interpretation, it is up to the jury to determine whether the plaintiff has met this burden. Goodman v. Goodman, 128 Wash.2d 366, 373, 907 P.2d 290 (1995).

This case falls within the ambit of the discovery rule. First, given the nature of the crop, Mr. Giraud could not know the extent of the damage, or even if damage was incurred, until the potatoes were dug from the ground. While Mr. Giraud admits he recognized the plants appeared damaged after...