Hustead v. Bendix Corp., 54681

• Decision Date: 15 July 1983
• Docket Number: No. 54681,54681
• Citation: 666 P.2d 1175,233 Kan. 870
• Parties: Robert F. HUSTEAD and Joy K. Hustead, Plaintiffs-Appellants, v. The BENDIX CORPORATION, the Avco Lycoming Corporation, the Piper Aircraft Corporation, Midwest Aircraft Sales, Inc., Midwest Piper Flight, Inc., Midwest Piper Sales, Inc., and Midwest Piper, Inc., Defendants-Appellees.
• Court: Kansas Supreme Court

Page 1175

666 P.2d 1175

233 Kan. 870

Robert F. HUSTEAD and Joy K. Hustead, Plaintiffs-Appellants, v. The BENDIX CORPORATION, the Avco Lycoming Corporation, the Piper Aircraft Corporation, Midwest Aircraft Sales, Inc. Midwest Piper Flight, Inc., Midwest Piper Sales, Inc., and Midwest Piper, Inc., Defendants-Appellees.

No. 54681.

Supreme Court of Kansas.

July 15, 1983.

Syllabus by the Court

1. In considering a motion for summary judgment, a trial court must give to a litigant, against whom summary judgment is sought, the benefit of all inferences that may be drawn from the admitted facts under consideration.

2. A court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties.

3. A party can be equitably estopped from reliance on the statute of limitations as a defense to the claim against him.

4. The requirement of a written acknowledgment or promise in K.S.A. 60-520 pertains only to situations involving acknowledgment of an existing liability or a promise to pay the same. A part payment speaks for itself, and, when a part payment is made in a contract case, the provisions of K.S.A. 60-520 come into play, having the effect of tolling the statute of limitations.

5. In an action to recover damages based on both tort and contract, the record on appeal is examined and it is held the trial court erred in granting a motion for summary judgment in favor of defendants.

Robert Martin, of Martin, Pringle, Oliver, Triplett & Wallace, Wichita, argued the cause, and John P. Woolf and Martin W. Bauer, Wichita, of the same firm, were with him on briefs for plaintiffs-appellants.

Alvin D. Herrington and Eric E. Davis, of McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, argued the cause and was on brief for defendant-appellee, Bendix Corp.

Fred L. Maars, Wichita, argued the cause and was on brief for defendant-appellee, Avco Lycoming Corp.

Rex G. Beasley, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause, and John T. Conlee and Thomas J. Lasater, Wichita, of the same firm, were with him on brief for defendant-appellee, Piper Aircraft Corp.

F.C. McMaster, of McMaster & McMaster, Wichita, argued the cause and was on brief for defendant-appellee, Midwest Piper, Inc.

PRAGER, Justice:

This is an action brought by the plaintiffs, Dr. Robert F. Hustead and Joy K. Hustead, his wife, to recover damages for personal injuries suffered in an airplane crash. The defendants involved on this appeal are the Bendix Corporation, Avco Lycoming Corporation, the Piper Aircraft Corporation, and Midwest Piper, Inc.

Each plaintiff's action was brought on the basis of three legal theories: (1) Negligence, (2) strict liability in tort, and (3) breach of implied warranty under K.S.A. 84-2-314. The trial court sustained the separate motions of the defendants for summary judgment on the basis that the action of each plaintiff was barred by the statute of limitations. Plaintiffs have appealed to this court.

The facts in this case were not fully developed by discovery, and it appears to us that there are serious factual issues in the case which have not been fully explored. However, many of the essential facts are undisputed and are as follows: On or before December 29, 1976, Hustead Aviation Enterprises, Inc., sold a Piper Lance aircraft to the Husteads. On January 8, 1978, Dr. Hustead, accompanied by his wife, Joy, his two daughters, Barbara and Rhonda, and another guest, was flying the airplane when it crashed in Sedgwick County, resulting in serious personal injuries to the plaintiffs and to other passengers. Three years later on January 8, 1981, the present action was filed in district court. Each of the defendants raised the defense that the plaintiffs' actions were barred by the applicable statute of limitations.

The defendants contended in the district court, as they do in this court, that the statute of limitations applicable to each plaintiff's cause of action based on negligence and strict liability in tort is K.S.A. 60-513, which requires that the action be filed within two years from the date the cause of action accrued. They maintain that, since the plaintiffs first suffered substantial injury on the date of the crash, January 8, 1978, plaintiffs were required to file their lawsuits based upon negligence and strict liability not later than January 8, 1980. Since the actions were filed on January 8, 1981, plaintiffs' causes of action in negligence and strict liability in tort are barred by K.S.A. 60-513.

As to each plaintiff's cause of action based on breach of implied warranty arising from the sale of products, the defendants maintain that the applicable statute of limitations is K.S.A. 84-2-725 which requires a claim for breach of warranty to be filed within four years after tender of the product. Using the date of December 29, 1976, as the date when the Piper aircraft was sold to plaintiffs, each of the defendants contend that the plaintiffs were required to file their action for breach of warranty within four years from that date, which would be December 29, 1980. Since plaintiffs' action were filed on January 8, 1981, more than four years after December 29, 1976, each plaintiff's cause of action for breach of implied warranty is barred under K.S.A. 84-2-725. On this appeal, counsel for plaintiffs concedes that the two statutes mentioned govern the period of limitations for filing actions in this case.

The response which plaintiffs asserted in the trial court to the defense of the statute of limitations was that of equitable estoppel. Stated simply, the basis of plaintiffs' contention is that, while the actions were pending, the agents of the United States Aviation Underwriters (USAU) representing all of the defendants admitted that they were liable to the plaintiffs, agreed to pay all of the plaintiffs' damages, and made advance payments to the two plaintiffs totaling $280,000. The evidentiary record indicates that on or about July 20, 1978, USAU paid Dr. Hustead $125,000, and Joy K. Hustead $65,000 in advance payments on their claims. On November 29, 1978, USAU paid Dr. and Mrs. Hustead jointly $70,000 on their claims. A final payment was made to Mrs. Hustead in the amount of $20,000 on or about September 12, 1979. The specific factual circumstances about these payments has not been fully explored by discovery.

At that point, USAU refused to make any further payments. On December 5, 1980, counsel for plaintiffs requested the agent of USAU to extend the statute of limitations which plaintiffs' attorney stated would run on January 8, 1981. USAU was unwilling to extend the statute of limitations but indicated that the case was not capable of being settled. On January 8, 1981, plaintiffs filed their lawsuit. In December of 1981, all defendants filed motions for summary judgment on the basis of the running of the statute of limitations. On March 18, 1982, summary judgment was granted to each of the defendants on that basis.

On the appeal, the plaintiffs also rely on two Kansas statutes which provide for the tolling of the statute of limitations under certain circumstances. Those two statutes are K.S.A. 60-520 and K.S.A. 40-275 which will be discussed in the course of the opinion.

The first point raised by the plaintiffs on the appeal is that the trial court erred in granting summary judgment to defendants and in rejecting plaintiffs' claim of equitable estoppel, (1) because it did so without permitting discovery and supplemental affidavits, (2) because the court selected the wrong date for the commencement of the statute of limitations, and (3) because it resolved conflicting factual questions as to the parties' state of mind and credibility. The leading case in Kansas on the issue whether a defendant is estopped from raising the statute of limitations is Bowen v. Westerhaus, 224 Kan. 42, 578 P.2d 1102 (1978). In Bowen, a trial court granted summary judgment to the defendants on the ground the action was barred by the statute of limitations. The plaintiffs claimed that the defendants were estopped from defending on the basis of the statute of limitations. On appeal, this court reversed holding that on the basis of the evidentiary record, taken in the light most favorable to the plaintiffs, it was error for the trial court to conclude that as a matter of law there was no genuine issue as to any material fact and to enter judgment on the pleadings, depositions, and written documents. Because of the genuine factual issues, summary judgment was premature. The court recognized the rule that, in considering a motion for summary judgment, a trial court must give to a litigant against whom summary judgment is sought the benefit of all inferences that may be drawn from the admitted facts under consideration. It was stated that a court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties. The doctrine of equitable estoppel is based upon the principle that a person is held to a representation made or a position assumed when otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances, has in good faith relied thereon. The court further stated that a party can be equitably estopped from reliance on the statute of limitations as a defense to the claim against him. The issue to be determined in such a case is whether the plaintiffs' claim of equitable estoppel must be rejected as a matter of law or whether there are legitimate factual issues to be fully developed by further discovery and determined by the court.

The critical element in this case is whether the plaintiffs can show that they actually relied upon any assurances, representations, admissions, or silence of USAU when its representative...