McClanahan v. American Gilsonite Co.

• Decision Date: 21 July 1980
• Docket Number: Civ. A. No. 77-C-1127.
• Citation: 494 F. Supp. 1334
• Parties: Preston James McCLANAHAN and Marilyn McClanahan, husband and wife; Margaret T. Morris; Laura L. Morris and Scott A. Morris, by their mother and next friend, Margaret T. Morris, Plaintiffs, v. AMERICAN GILSONITE COMPANY, a Delaware Corporation, Standard Oil Company of California, a Delaware Corporation, and Chevron Research Company, a Delaware Corporation, Defendants.
• Court: U.S. District Court — District of Colorado

494 F. Supp. 1334

Preston James McCLANAHAN and Marilyn McClanahan, husband and wife; Margaret T. Morris; Laura L. Morris and Scott A. Morris, by their mother and next friend, Margaret T. Morris, Plaintiffs, v. AMERICAN GILSONITE COMPANY, a Delaware Corporation, Standard Oil Company of California, a Delaware Corporation, and Chevron Research Company, a Delaware Corporation, Defendants.

Civ. A. No. 77-C-1127.

United States District Court, D. Colorado.

July 21, 1980.

COPYRIGHT MATERIAL OMITTED

Clayton D. Tipping, Grand Junction, Colo., Stuart H. Pack, Michael A. Williams, Sherman & Howard, Denver, Colo., for plaintiffs.

David G. Palmer, William W. Maywhort, Holland & Hart, Peter F. Jones, Hall & Evans, Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

THIS MATTER is before the Court on motions for summary judgment filed by defendants American Gilsonite Company ("Gilsonite"), Standard Oil Company of California ("Socal") and Chevron Research Company ("CRC"). As discussed in detail below, Socal's and CRC's motions, which are identical, are granted as to one plaintiff — Margaret T. Morris — and denied as to the remaining plaintiffs. Gilsonite's motion is granted in part and denied in part.

I. Facts.¹

On November 15, 1977, the plaintiffs filed their original complaint in the state district court for Mesa County, Colorado, and the action was removed to this Court in December of that year.² That complaint sought damages for personal injuries and wrongful death caused by an oil refinery accident on November 16, 1975. The accident occurred at the Mesa Refinery, in Fruita, Colorado, which at the time was owned and operated by Gary Operating Company ("Gary"). The original complaint did not name Socal or CRC as defendants. It did, however, include as a defendant Chevron U.S.A., Inc., a wholly-owned subsidiary of Socal.

The complaint was served on Chevron U.S.A. on November 21, 1977. On December 16, 1977, Chevron U.S.A. moved to dismiss the complaint on the ground that it had never had any interest or involvement in the Mesa Refinery. The plaintiffs confessed that motion, and this Court entered an order of dismissal on January 24, 1978.

The plaintiffs filed a Second Amended Complaint in February 1978, naming Socal as a defendant. The Second Amended Complaint was served on Socal on March 6, 1978.

On September 25, 1978, following this Court's rulings on other motions which do not affect the issues here, the plaintiffs filed a Third Amended Complaint, which for the first time named CRC as a defendant in this case. The Third Amended Complaint was served on CRC on October 13, 1978. CRC is a wholly-owned subsidiary of Socal.

As noted above, at the time of the accident the Mesa Refinery was owned and operated by Gary Operating Company. On December 21, 1973, Gary had purchased the refinery, together with certain other assets, from Gilsonite. In the 1950's Gilsonite had contracted with other parties, including Socal and CRC, for the design, construction, and start-up of the refinery, which was originally designed primarily to extract oil and other petroleum products from a solid ore known as gilsonite. The refinery began operation in 1957, and was used to process gilsonite, as well as some crude oil, from 1957 until January 23, 1973. On the latter date, a fire destroyed the refinery's melt tank.

After the 1973 fire, Gilsonite did not rebuild the refinery as it had been constructed originally, but rather converted it for use solely as a crude oil refinery. There are factual disputes as to what physical alterations were required by this conversion, or at least as to the significance of the changes made, but it is one of the plaintiffs' allegations that the changes were the cause of the 1975 accident which is the subject of this suit. As noted above, Gilsonite sold the refinery to Gary in December 1975, and therefore had no ownership interest in it for nearly two years preceding this accident.

In addition to alleging that Gilsonite's alterations of the refinery caused the accident, the plaintiffs claim that the original design and construction of the refinery, as well as the operating procedures and processes, also contributed to the accident. It is because of their involvement in the initial design, construction and start-up of the refinery that Socal and CRC are named as defendants.

II. Socal and CRC Motions for Summary Judgment: Statutes of Limitations.

Socal and CRC assert that because of their lack of involvement with the Mesa Refinery after completion of its construction in 1957, the claims of all plaintiffs against them are barred by section 13-80-127, C.R.S.1973. The plaintiffs have raised questions regarding that section's applicability to the claims they assert, as well as challenges to the statute's constitutionality. Because a different analysis applies to the wrongful death claims of plaintiffs Morris than to the personal injury claims of plaintiffs McClanahan, those two types of claims will be discussed separately.

A. The Wrongful Death Claims.

Plaintiffs Margaret T. Morris, Laura L. Morris and Scott A. Morris, the surviving spouse and children, respectively, of decedent Rex Morris, filed claims under the Colorado wrongful death statute, section 13-21-203, C.R.S.1973. These plaintiffs contend that because theirs is a wrongful death action, the applicable statute of limitations is section 13-21-204, C.R.S.1973, rather than section 13-80-127, C.R.S.1973. I agree.

Section 13-21-204 applies by its terms to "all actions provided for by sections 13-21-201 to 203 . . .." On the other hand, the statute upon which the defendants rely applies to "all actions against any architect, contractor, engineer or inspector brought to recover damages for injury to persons or property caused by the design, planning, supervision, inspection, construction, or observance of construction of any improvement to real property . .." Section 13-80-127, C.R.S.1973.³ (Emphasis added).

The language of section 13-21-204 is plainly all-inclusive, and must be construed to apply to all wrongful death actions in the absence of an express exception in section 13-80-127. Moreover, there is no real conflict between the two provisions, since section 13-80-127 applies only to actions "for injury to person or property," which may reasonably be construed to exclude actions for wrongful death. Finally, the legislature amended section 13-80-127, effective July 1, 1979, to include actions for wrongful death, lending at least some support to the conclusion that wrongful death actions were not previously covered by that statute. Therefore, under the terms of section 13-21-204,⁴ the Morrises' claims were required to be brought "within two years from the commission of the alleged negligence resulting in the death for which suit is brought."

Even given the applicability of section 13-21-204 to the Morrises' claims, however, Socal and CRC contend that the plaintiffs failed to join them as defendants in this case prior to the expiration of the two-year period. As related above, the original complaint was filed on November 15, 1977, one day less than two years after the accident, but Socal and CRC were not joined as defendants until February 1978, and September 1978, respectively.

The plaintiffs respond that under F.R. Civ.P. 15(c) they are entitled to have the amendments adding Socal and CRC "relate back" to the date the original complaint was filed. Rule 15(c) provides:

"(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him."

The plaintiffs argue that the notice requirement of the Rule has been met because Socal is the parent corporation of and is represented by the same counsel as Chevron U.S.A., an original defendant in the case, and as such received actual notice of the lawsuit almost immediately after the complaint was served on Chevron U.S.A. Moreover, they contend, CRC is also a wholly-owned subsidiary of Socal, and is represented by the same counsel, and thus CRC also had sufficient notice to satisfy Rule 15(c).

If the problem were one of the fact of notice alone, the close relationship between these corporations would probably bring this case within the doctrine of Travelers Indemnity Company v. United States, 382 F.2d 103 (10th Cir. 1967). That case, however, did not involve the timing problems presented here. As the defendants point out, Rule 15(c) requires notice to the added party "within the period provided by law for commencing the action against him . . .." (Emphasis added). This language plainly requires notice to have been given within the two-year period provided by section 13-21-204, i. e., before November 16, 1977. The plaintiffs do not assert that either CRC or Socal received notice of this lawsuit before Chevron U.S.A. was served with the complaint on November 21, 1977. Therefore, the relation back doctrine of Rule 15(c) does not apply. See Janus v. J. M. Barbe Co., 57 F.R.D. 539 (N.D.Ohio, E.D. 1972).

The plaintiffs argue, however, that even if the claims cannot relate back, the claims of Scott and Laura Morris, the decedent's children, are still viable because of the tolling period provided by section 13-81-103, C.R.S.1973. The defendants have not...