Goldsmith v. Learjet, Inc.

• Decision Date: 31 May 1996
• Docket Number: No. 75473,75473
• Citation: 260 Kan. 176,917 P.2d 810
• Parties: Adam GOLDSMITH, Julie Beth Goldsmith, and 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, the personal representatives of the Estate of Harold Goldsmith, Deceased, Appellants, v. LEARJET, INC., Appellee.
• Court: Kansas Supreme Court

Page 810

917 P.2d 810

260 Kan. 176

Adam GOLDSMITH, Julie Beth Goldsmith, and 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, the personal representatives of the Estate of Harold Goldsmith, Deceased Appellants, v. LEARJET, INC., Appellee.

No. 75473.

Supreme Court of Kansas.

May 31, 1996.

Syllabus by the Court

1. The United States Court of Appeals for the Tenth Circuit, pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq., certified the following questions:

(1) Whether the Kansas borrowing statute, K.S.A. 60-516, borrows the foreign state's saving statute so as to preempt the Kansas saving statute.

(2) Whether the Kansas saving statute, K.S.A. 60-518, saves wrongful death actions.

(3) Whether the Kansas saving statute saves actions that the Kansas borrowing statute otherwise would bar.

2. We hold, under the facts submitted, that the answers to the questions are:

(1) No.

(2) Yes.

(3) Moot.

Randall E. Fisher, Wichita, and Marc S. Moller, of Kreindler & Kreindler, New York City, argued the cause, and Derek S. Casey, of Hutton & Hutton, Wichita, and David L. Fiol, of Kreindler & Kreindler, of New York City, were with them on the briefs for appellants.

Michael J. Davis, of Stinson, Mag & Fizzell, P.C., Overland Park, argued the cause, and L. Richard Musat, of Treece, Alfrey & Musat, P.C., Denver, Colorado, and Edwin W. Green and Manuel Saldana, of Bronson, Bronson & McKinnon, Los Angeles, California, were with him on the brief for appellee.

Mark A. Furney, Overland Park, was on the brief for amicus curiae Kansas Trial Lawyers Association.

ALLEGRUCCI, Justice:

This case involves conflicts law and statutes of limitations. Heirs and representatives of the estate of Harold Goldsmith, who was killed in the crash of a Learjet aircraft in Colorado, seek wrongful death and survival damages. They filed a timely petition in state court in Kansas and voluntarily dismissed it more than 2 years after Goldsmith's death. Within 6 months of the dismissal, they refiled in United States District Court, claiming diversity jurisdiction. On the ground that the diversity action was time barred by Colorado's statute of limitations, summary judgment was entered against them by the United States District Court for the District of Kansas. An appeal was taken.

This case is before us on questions certified by the United States Court of Appeals for the Tenth Circuit under the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. Following the filing of briefs and oral argument, Circuit Judge David M. Ebel certified to this court the following questions:

1. Whether the Kansas borrowing statute, K.S.A. 60-516, borrows the foreign state's saving statute so as to preempt the Kansas saving statute.

2. Whether the Kansas saving statute, K.S.A. 60-518, saves wrongful death actions.

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

The facts are set out in the certification order as follows:

"On February 13, 1991, a Learjet aircraft crashed during landing near Aspen, Colorado, killing everyone aboard including Harold Goldsmith (the 'decedent'). Representatives of decedent's estate filed a survival action against Learjet in Kansas state court on February 11, 1993 (the 'first action'), captioned Berkowitz v. Learjet, No. 93C55. The plaintiffs voluntarily dismissed that action on June 9, 1993. These representatives, along with the decedent's wife and three children, then brought a 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'). This Certification arises out of the second action. None of the plaintiffs are Kansas residents. Learjet's principal place of business is in Kansas.

"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.

"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. 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 is applicable only when the first action be dismissed for lack of jurisdiction or improper venue. See Colo.Rev.Stat. § 13-80-111. Plaintiffs fail both requirements.

"Learjet further argued that Kansas Supreme Court precedent directly bars courts from applying the Kansas saving statute to wrongful death causes of actions. See Rodman v. Missouri Pac. Ry. Co., 70 P. 642, 644 (Kan.1902). Plaintiffs responded that the state legislature's decision in 1963 to sever the limitations period for wrongful death claims from the action's substantive statutory requirements and to relocate that provision among the statutory provisions addressing other statute of limitations provisions indicate that Rodman no longer remains valid law. Plaintiffs also refer to more recent Kansas cases suggesting that the saving statute applies to wrongful death claims.

"The district court granted Learjet's motion for summary judgment, accepting its arguments that both the effect of the Kansas borrowing statute and the Rodman precedent barred the second action."

The federal district court, in entering summary judgment in favor of Learjet, concluded that the rule of Rodman v. Railway Co., 65 Kan. 645, 70 P. 642 (1902), that the Kansas saving statute does not apply to wrongful death claims, barred the second action. It also concluded that the Kansas borrowing statute incorporates Colorado's saving statute, thus precluding application of the Kansas saving statute. The Colorado saving statute, which is more restrictive than that of Kansas, will not save the second action. Finally, the district court concluded that the Kansas saving statute would not revive the time-barred action because the Kansas borrowing statute is more specific than, and therefore governs over, the Kansas saving statute.

Question No. 1

Whether the Kansas borrowing statute, K.S.A. 60-516, borrows the foreign state's saving statute so as to preempt the Kansas saving statute.

In ruling on Learjet's motion for summary judgment in the present case, the United States District Court for the District of Kansas applied Kansas' limitations laws. Because the action arose in Colorado, Kansas' borrowing statute was considered. In the view of the district court, the Kansas borrowing statute incorporated all aspects of the limitations law of Colorado to the preclusion of the Kansas saving statute. In its certification, the Tenth Circuit Court of Appeals directed to this court a question of the scope of the borrowing statute's operation. The Court of Appeals stated: "A threshold issue in this case is whether the Kansas borrowing statute would borrow not only the Colorado statute of limitations, but also the Colorado saving statute as well, thereby precluding the operation of the Kansas saving statute."

The pertinent and arguably pertinent limitations laws of Kansas and Colorado are quoted here: The basic statutes of limitations of both states limit the period in which a wrongful deathaction may be initiated to 2 years from the death. K.S.A. 60-513(a)(5) provides: "(a) The following actions shall be brought within two years: ... (5) An action for wrongful death." Colo.Rev.Stat. § 13-80-102(1)(d) (1987) provides: "(1) The following civil actions, regardless of the theory upon which suit is brought, or against whom suit is brought, shall be commenced within two years after the cause of action accrues, and not thereafter: ... (d) All actions for wrongful death." The Kansas borrowing statute provides:

"Where the cause of action has arisen in another state or country and by the laws of the state or country where the cause of action arose an action cannot be maintained thereon by reason of lapse of time, no action can be maintained thereon in this state except in favor of one who is a resident of this state and who has held the cause of action from the time it accrued." K.S.A. 60-516.

The Kansas saving statute provides:

"If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if the plaintiff die and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure." K.S.A. 60-518.

The Colorado saving statute provides, in part:

"(1) If an action is commenced within the period allowed by this article and is terminated because of lack of jurisdiction or improper venue, the plaintiff ... may commence a new action upon the same cause of action within ninety days after the termination of the original action or...