Goldsmith v. Learjet, Inc., 94-3351

• Decision Date: 22 July 1996
• Docket Number: No. 94-3351,94-3351
• Citation: 90 F.3d 1490
• Parties: Adam GOLDSMITH, Julie Beth Goldsmith, Henry Josh Goldsmith, a Minor, By His Mother, Natural Guardian and Next Friend, Beth Goldsmith, and Beth Goldsmith, Individually, the Heirs-at-Law of Harold Goldsmith, Deceased; and Beth Goldsmith, Alan Berkowitz and Neil Ambach, Personal Representatives of the Estate of Harold Goldsmith, Deceased, Plaintiffs-Appellants, v. LEARJET, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1490

90 F.3d 1490

Adam GOLDSMITH, Julie Beth Goldsmith, Henry Josh Goldsmith,

a Minor, By His Mother, Natural Guardian and Next Friend,

Beth Goldsmith, and Beth Goldsmith, Individually, the

Heirs-at-Law of Harold Goldsmith, Deceased; and Beth

Goldsmith, Alan Berkowitz and Neil Ambach, Personal

Representatives of the Estate of Harold Goldsmith, Deceased, Plaintiffs-Appellants, v. LEARJET, INC., Defendant-Appellee.

No. 94-3351.

United States Court of Appeals, Tenth Circuit.

July 22, 1996.

Rehearing Denied Sept. 9, 1996.

Marc S. Moeller of Kreindler & Kreindler, New York City (David L. Fiol of Kreindler & Kreindler, New York City and Derek S. Casey of Michaud, Hutton, Fisher & Andersen, Wichita, KS, with him, on the briefs), for Plaintiffs-Appellants.

Michael Lloyd Hutchinson of Treece, Alfrey & Musat, Denver, CO (L. Richard Musat of Treece, Alfrey & Musat, Denver, CO, Edwin W. Green of Bronson, Bronson & McKinnon, Los Angeles, CA, and Manuel Saldana of Bronson, Bronson & McKinnon, Los Angeles, CA, with him, on the brief), for Defendant-Appellee.

Before EBEL and LOGAN, Circuit Judges, and HOLMES, District Judge. ^*

EBEL, Circuit Judge.

Defendant Learjet built an aircraft which crashed during an instrument approach to a landing field near Aspen, Colorado, killing everyone aboard, including Harold Goldsmith. Plaintiffs, relatives of Harold Goldsmith and representatives of the Harold Goldsmith estate, filed this action in the United States District Court for the District of Kansas, seeking wrongful death and survival damages against Learjet. The district court granted Learjet's summary judgment motion on several grounds, including that the Kansas borrowing statute barred the action because the action would have been untimely if filed in Colorado, the state where the cause of action accrued. Plaintiffs now appeal, arguing: (1) In applying the Kansas borrowing statute, the court should not have borrowed the Colorado saving statute, but rather should have applied the Kansas saving statute; (2) The court erred in concluding that the Kansas saving statute does not save wrongful death actions; and (3) The court should have tolled the Colorado statute of limitations because Plaintiff Josh Goldsmith is a minor. Because we considered the first and second questions unsettled under Kansas law, we certified them to the Kansas Supreme Court pursuant to the Kansas Uniform Certification of Questions of Law Act, Kan. Stat. Ann. §§ 60-3201 et seq., and now have reviewed the court's prompt response. Based on the supreme court's answers, we reverse the district court's dismissal of the claims brought by the personal representatives and remand these claims for further proceedings. We also reverse and remand Henry Josh Goldsmith's claim for further proceedings. At the same time, we affirm the district court's dismissal against Adam Goldsmith, Julie Beth Goldsmith, and Beth Goldsmith, in her individual capacity.

Background

On February 13, 1991, a Learjet aircraft crashed during landing near Aspen, Colorado, killing everyone aboard including Harold Goldsmith (the "decedent"). Less than two years later, representatives of decedent's estate filed a survival action against Learjet in Kansas state court on February 11, 1993 (the "first action"), captioned Berkowitz, et al. v. Learjet, Inc., No. 93-C-55. The plaintiffs voluntarily dismissed that action on June 9, 1993. Within six months of the dismissal, these representatives, along with the decedent's wife and three children, brought this diversity action on November 30, 1993 in U.S. District Court for the District of Kansas, seeking wrongful death and survival damages (the "second action"). ¹ This appeal arises out of the second action.

Learjet filed a summary judgment motion, arguing that the second action was untimely under the statutes of limitations of both Kansas and Colorado, both of which limit the period when a party may bring a wrongful death action to two years. Kan. Stat. Ann. § 60-513(5); Colo.Rev.Stat. § 13-80-102. In response, plaintiffs argued that the Kansas saving statute, Kan. Stat. Ann. § 60-518, extended the time within which they could bring the second action. The Kansas saving statute provides that when an action is dismissed for a reason other than the merits after the statute of limitations lapses, the plaintiff may commence a new action within six months from the dismissal. Id. ²

Learjet responded that the Kansas borrowing statute, Kan. Stat. Ann. § 60-516, nonetheless prevented plaintiffs from maintaining the second action regardless of the saving statute. The borrowing statute bars a resident of a state other than Kansas from maintaining an action in Kansas when the laws of the state where the cause of action arose would bar the same action. Id. ³ Here, the cause of action arises in Colorado and Colorado law would have barred plaintiffs from bringing an action in Colorado at the time they brought the second action in Kansas. Colorado's savings statute extends the Colorado statute of limitations only ninety days after the dismissal of the original action and applies only when the first action is dismissed for lack of jurisdiction or improper venue. See Colo.Rev.Stat. § 13-80-111. Plaintiffs fail both requirements.

The district court granted Learjet's motion for summary judgment, agreeing with its arguments that: (1) the Kansas borrowing statute borrowed Colorado's saving statute, which would not save Plaintiffs' second cause of action; (2) regardless of the effect of the borrowing statute, the Kansas saving statute does not save wrongful death actions; and (3) the statute of limitations did not toll for Plaintiff Josh Goldsmith because it appeared that a legal guardian had been appointed to represent the now 14-year-old minor. In the interest of cooperative judicial federalism, we concluded that the first two issues were questions of Kansas law best answered by the Kansas courts. See Lehman Bros. v. Schein, 416 U.S. 386, 390-91, 94 S.Ct. 1741, 1743-44, 40 L.Ed.2d 215 (1974). We submitted to the Kansas Supreme Court the following certified questions of Kansas law, which we found determinative of the present action, and which did not appear clearly answered under Kansas statutory law and controlling precedent:

I. Whether the Kansas borrowing statute, Kan. Stat. Ann. § 60-516, borrows the foreign state's saving statute so as to preempt the Kansas saving statute.

II. Whether the Kansas saving statute, Kan. Stat. Ann. § 60-518, saves wrongful death actions.

III. Whether the Kansas saving statute saves actions that the Kansas borrowing statute otherwise would bar.

The Kansas Supreme Court answered the first question in the negative. It answered the second question in the positive. Based on its answer to the first question, the supreme court considered the third question to be moot and accordingly did not offer an answer. See Goldsmith v. Learjet, Inc., 917 P.2d 810 (Kan.1996).

Discussion

We review the grant or denial of summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c). Newland v. Newland, 82 F.3d 338, 340 (10th Cir.1996). "Summary Judgment is appropriate 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' " Id. (quoting Universal Money Ctrs., Inc. v. AT & T, 22 F.3d 1527, 1529 (10th Cir.), cert. denied, 513 U.S. 1052, 115 S.Ct. 655, 130 L.Ed.2d 558 (1994)).

I. Applicability of the Colorado saving statute

A threshold issue in this case is whether the Kansas borrowing statute borrows not only the Colorado statute of limitations, but also the Colorado saving statute as well, thereby precluding the operation of the Kansas saving statute. Plaintiffs argue that the borrowing statute does not borrow Colorado's saving statute and that Kansas's saving statute remains applicable. Learjet responds that all foreign law that affects the timeliness of a claim should be borrowed when applying a borrowing statute. Learjet points out that the Kansas borrowing statute looks to "the laws of the state or country where the cause of action arose," K.S.A. § 60-516 (emphasis added), and not merely to the foreign state's limitation period.

In response to our certified question, the Kansas Supreme Court disagreed with Learjet, and concluded that the Kansas borrowing statute does not borrow the foreign state's saving statute. In reaching this conclusion, the court relied on its recent decision in See v. Hartley, 257 Kan. 813, 896 P.2d 1049 (1995). In See, a medical malpractice victim, who had voluntarily dismissed an earlier action, sought to invoke the saving statute to bring a second action after more than four years had elapsed from the time of the medical procedure which gave rise to the action. Id. 896 P.2d at 1050. The defendant argued that K.S.A. § 60-513(c), which provides that "in no event shall [a medical malpractice action] be commenced more than four years beyond the time of the act giving rise to the cause of action," imposed an inviolable four-year limitation from when the plaintiff could bring his action and blocked the operation of the saving statute. Id. at 1051. The court rejected the defendant's argument, holding that the saving statute continued to operate past the four-year limitation period:

We conclude that once an action is timely filed under the provisions of a so-called ordinary statute of limitations or within the applicable time limitations of a repose statute, such as K.S.A. 60-513(b) or (c), the action is then subject to the savings provision of K.S.A. 60-518. The first action, having been timely filed, was subject to the savings provision of K.S.A. 60-518, and therefore the second action was also timely and not barred by K.S.A. 60-513(c).

Id. at 1055-56 (emphasis added).

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