Martin v. Dba
Decision Date | 14 October 2013 |
Docket Number | No. 68132–0–I.,68132–0–I. |
Citation | 178 Wash.App. 646,315 P.3d 1126 |
Parties | Nina L. MARTIN, individually and as Personal Representative of the Estate of Donald R. Martin, Russell L. Martin, Thaddeus J. Martin, and Jane Martin, Appellant, v. DEMATIC dba/fka Rapistan, Inc., Mannesmann Dematic, and Siemens Dematic; General Construction Company, Wright Schuchart Harbor Company, Wright Schuchart, Inc.; Fletcher General, Inc., and Fletcher Construction Company North America and Fletcher Building, Ltd., Respondents. |
Court | Washington Court of Appeals |
OPINION TEXT STARTS HERE
Douglas A. Hofmann, Attorney at Law, Seattle, WA, Francis Stanley Floyd, A Troy Hunter, Amber L. Pearce, Floyd, Pflueger & Ringer, P.S., Seattle, WA, for Respondents.
John Budlong, Law Offices of John Budlong, Tara L. Eubanks, The Budlong Law Firm, Edmonds, WA, George M. Ahrend, Ahrend Albrecht PLLC, Ephrata, WA, for Appellant/Cross–Respondent.
David Clark Groff Jr., Michael Porter Grace, Daniel Connolly Carmalt, Groff Murphy PLLC, Seattle, WA, for Respondent/Cross–Appellant.
¶ 1 Donald Martin suffered a fatal injury while working at a Kimberly Clark paper plant. His wife and children (collectively “the Martins”) appeal the trial court's summary dismissal of their claims against General Construction Company (General Construction) and Fletcher Construction Company North America (FCCNA). General Construction cross appeals, challenging the trial court's denial of two summary judgment motions.
¶ 2 Because General Construction did not assume liability for the Martins' claims and the statute of limitations barred the claims against FCCNA, we affirm the trial court's dismissal of Martins' claims against General Construction and FCCNA. Because a trial court's decision denying a motion for summary judgment does not constitute a final judgment, we do not address General Construction's cross appeal.
¶ 3 On August 13, 2004, a component of Tissue Machine No. 5(TM5) at Kimberly Clark's Everett paper plant fatally crushed Donald Martin. The TM5 was installed as part of a large construction project in 1981 when Scott Paper owned the plant. Wright Schuchart Harbor Co. (WSH) erected the TM5.
¶ 4 The parties dispute WSH's identity and ownership history. General Construction asserts the following history. At the time of the TM5 installation, Wright Schuchart Inc. owned WSH. In 1987, Fletcher Construction Company Ltd., a subsidiary of FCCNA, purchased Wright Schuchart Inc. At the time, FCCNA was a subsidiary of Fletcher Challenge, a multinational corporation involved in industrial construction. In 1993, Fletcher Challenge merged numerous subsidiaries, including WSH, into a single company, Fletcher General Inc. Fletcher General succeeded to WSH's preexisting liabilities.
¶ 5 In 1996, senior management of Fletcher General formed GC Investment Co. for the purpose of acquiring the majority of Fletcher General's assets. To complete this acquisition, Fletcher General transferred these assets to a wholly owned subsidiary, General Construction, and in exchange received all the outstanding stock of General. Fletcher General sold this stock to GC Investment. Their stock purchase agreement incorporated as exhibits a memorandum of transfer of assets for capital contribution purposes and two memoranda of assumption of liabilities executed by Fletcher General and General Construction to accomplish the asset transfer to General Construction. Both the stock purchase agreement and the memoranda of assumption of liabilities, in virtually identical language, defined and allocated “assumed liabilities,” which General Construction acquired, and “excluded liabilities,” which Fletcher General retained. Fletcher General agreed to indemnify General Construction for excluded liabilities.
¶ 6 In 2001, Fletcher General and Fletcher Construction Company Ltd. merged into FCCNA. Following the merger, General Construction and FCCNA agreed that FCCNA would continue to exist until at least 2006 and maintain a minimum bond or level of assets to cover its potential liabilities. FCCNA filed a certificate of dissolution on June 26, 2007.
¶ 7 FCCNA asserts that “Wright Schuchart Harbor Joint Venture,” a “separate and distinct corporate legal entity” from Wright Schuchart Inc. or Wright Schuchart Company, installed TM5.1 In interrogatories, Ronald Johnson, FCCNA's records custodian, stated,
The entities which previously comprised of Wright Schuchart Harbor Joint Venture had changed their names as necessary and were transferred to Sprague Resources Corporation as dividends by June 30, 1987 prior to the sale of Wright Schuchart, Inc. to Fletcher. Thus, these entities were not included in the sale of Wright Schuchart, Inc. to Fletcher in October 1987.
Johnson also testified that the joint venture 2
¶ 8 On June 29, 2007, the Martins filed this wrongful death and survival action against defendants that the Martins alleged were responsible for Mr. Martin's death, including “General Construction Company dba/fka Wright Schuchart Harbor Company.” The complaint did not name FCCNA as a defendant. On October 19, 2007, General Construction answered the Martins' complaint and asserted third party claims against Fletcher General and Fletcher Pacific Construction Company Ltd. (Fletcher Pacific). On December 11, 2009, General Construction moved for summary judgment, asserting that it was not liable as a successor to WSH. The trial court denied the motion on March 16, 2010.
¶ 9 The Martins filed an amended complaint on January 22, 2010, joining FCCNA as a defendant. In its answer to the amended complaint, FCCNA raised the statute of limitations as an affirmative defense.
¶ 10 On April 8, 2010, the Martins moved for summary judgment to establish General Construction's liability as a successor to WSH and Fletcher General. The court denied this motion. On October 1, 2010, General Construction filed a renewed motion for summary judgment based on the lack of successor liability. The trial court granted this motion and denied the Martins' subsequent motion for reconsideration.
¶ 11 On November 23, 2010, FCCNA moved to dismiss, arguing that “the statute of limitations for plaintiffs' claims against this defunct corporation had expired by January 2010 when FCCNA was added as a party to this lawsuit.” The court granted the motion on January 13, 2011, and denied the Martins' subsequent motion for reconsideration. It concluded that the Martins' amendedcomplaint did not relate back to the date of the original complaint under CR 15(c). The Martins appeal, and General Construction cross appeals.
¶ 12 We review summary judgment orders de novo, engaging in the same inquiry as the trial court.3 Summary judgment is proper if, viewing the facts and reasonable inferences in the light most favorable to the nonmoving party, no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.4 A genuine issue of material fact exists if reasonable minds could differ about the facts controlling the outcome of the litigation.5
¶ 13 In reviewing summary judgment orders, we consider supporting affidavits and other admissible evidence based upon the affiant's personal knowledge.6 “A party may not rely on mere allegations, denials, opinions, or conclusory statements, but, rather must set forth specifics indicating material facts for trial.” 7 We review the denial of a motion for reconsideration for abuse of discretion.8
¶ 14 The Martins raise two sets of issues. First, the Martins assert that General Construction assumed successor liability for WSH's torts under the stock purchase agreement and memoranda of assumption of liabilities. Second, the Martins assert that the statute of limitations does not bar their claims against FCCNA because those claims did not accrue until the Martins discovered FCCNA's identity as WSH's successor, that the filing and serving of the original summons and complaint tolled the statute of limitations, and that the amended complaint related back to the date of the original complaint for purposes of the statute of limitations. We disagree.
¶ 15 The Martins claim that General Construction “expressly assumed liability for tort claims such as those alleged by the Martin family under the terms of the Stock Purchase Agreement and the two Memoranda of Assumption of Liabilities” with Fletcher General, WSH's successor. In Washington, a corporation purchasing another corporation's assets generally “does not, by reason of the purchase of assets, become liable for the debts and liabilities of the selling corporation.” 9 This rule does not apply if “the purchaser expressly or impliedly agrees to assume liability.” 10 Martin claims that this exception applies here.
¶ 16 The stock purchase agreement stated that General Construction would, as of the organization date, assume “all of the Assumed Liabilities to which Seller was subject as of the Organization Date.” (Emphasis added.) The agreement also stated that, at closing, General Construction “shall assume from Seller all additional Assumed Liabilities to which Seller becomes subject between the Organization Date and the Closing Date.” The organization date was October 10, 1996, and the closing date was October 17, 1996. The stock purchase agreement required General Construction to deliver two separate “memorand[a] of assumption of liabilities” at closing, one effective as of the organization date and the other effective as of the closing date.
¶ 17 The stock purchase agreement defined “assumed liabilities”:
“Assumed Liabilities” means the obligations, liabilities and expenses of Seller or General included in clauses (i) through (ix) below, except to...
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