Miers v. Central Mine Equipment Co.

• Decision Date: 28 February 1985
• Docket Number: CV 84-0-43.
• Parties: Edna Aline MIERS, Plaintiff, v. CENTRAL MINE EQUIPMENT COMPANY, Defendant.
• Court: U.S. District Court — District of Nebraska

604 F. Supp. 502

Edna Aline MIERS, Plaintiff, v. CENTRAL MINE EQUIPMENT COMPANY, Defendant.

CV 84-0-43.

United States District Court, D. Nebraska.

February 28, 1985.

E. Dean Hascall, Omaha, Neb., for plaintiff.

Neil B. Danberg, Jr., Joe P. Cashen, Omaha, Neb., for defendant.

BEAM, District Judge.

This matter is before the Court upon the defendant's motion for summary judgment (filing 13). After a review of the pleadings, affidavits and the submitted briefs, this Court finds that the motion for summary judgment should be granted in part and denied in part.

On January 27, 1984, the plaintiff Edna Aline Miers, personal representative of the estate of Jack Gerald Miers, filed this action in the United States District Court for the District of Nebraska predicating jurisdiction on diversity of citizenship and alleging negligence, strict tort liability, and intentional concealment as the basis of her cause of action against the defendant Central Mine Equipment. The gravamen of the allegations is products liability. The death of the plaintiff's decedent was allegedly caused by an oil well auger manufactured by the defendant.

The plaintiff seeks to recover damages in a survival action on behalf of the decedent's estate, and in a wrongful death action on behalf of the decedent's widow and next of kin. Nebraska Wrongful Death Act Neb.Rev.Stat. §§ 30-809 et seq. This matter is presently before the Court for consideration of the defendant's motion for summary judgment on the issue of whether the plaintiff's claims are barred by the ten-year limitation for commencing actions as stated in Neb.Rev.Stat. § 25-224(2).

The Court finds that the plaintiff's second, third and fourth causes of action are barred by the statute of limitations, unless the plaintiff can establish fraudulent concealment, thus estopping the defendant from relying on the statute of limitations defense. Further, the Court finds that under the facts of this case the plaintiff's first cause of action, the wrongful death action, is not barred by the statute of limitations defense.

The chronology of events in this case is important to the resolution of this issue.¹ The product that allegedly caused the injury was first sold to the decedent's employer on May 11, 1973. The injury that gave rise to this action and resulted in the death of the decedent occurred on January 27, 1982, approximately eight years and eight and one-half months from the date the product was first sold for use or consumption. The death of the decedent occurred February 21, 1982, less than one month later. Therefore, both the injury and death of the decedent occurred within ten years from the date the product was first sold. In fact, the death occurred one year and about two months before the ten-year period ended. This action was filed January 27, 1984, within the two-year period prescribed by the Wrongful Death Statute. Neb.Rev.Stat. § 30-810.

The issue in this case becomes not only the interpretation and the effect of the ten-year limitation period in Neb.Rev.Stat. § 25-224(2), but also the Wrongful Death Statute, Neb.Rev.Stat. § 30-809, as well as Neb.Rev.Stat. § 25-213, relating to the interest of infants and other persons under disability. The defendant argues that the plain meaning of Neb.Rev.Stat. § 25-224(2) bars the action. The plaintiff counters with three arguments: (1) that Neb.Rev. Stat. § 25-213 extends the ten-year period because of the disability of the decedent's minor children, (2) that an application of Neb.Rev.Stat. § 25-224(2) to this case is unconstitutional since it bars the plaintiff's access to the courts, and (3) that equitable estoppel bars the defendant from relying on the ten-year limitation period.

I.

The Nebraska Legislature enacted Neb. Rev.Stat. § 25-224 to govern the time limits for bringing a product liability action which provides, in part:

(1) All product liability actions, except one governed by subsection (5) of this section, shall be commenced within four years next after the date on which the death, injury, or damage complained of occurs. Emphasis added.

(2) Notwithstanding subsection (1) of this section or any other statutory provision to the contrary, any product liability action, except one governed by section 2-725, Uniform Commercial Code or by subsection (5) of this section shall be commenced within ten years after the date when the product which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption. Emphasis added.

(3) The limitations contained in subsection (1), (2), or (5) of this section shall not be applicable to idemnity or contribution actions brought by a manufacturer or seller of a product against a person who is or may be liable to such manufacturer or seller for all or any portion of any judgment rendered against a manufacturer or seller.

(4) Notwithstanding the provisions of subsections (1) and (2) of this section, any cause of action or claim which any person may have on July 22, 1978, may be brought not later than two years following such date.

(5) ....

Neb.Rev.Stat. § 25-224 (Cum.Supp.1984).²

While the Nebraska Supreme Court has not yet analyzed the ten-year limitation period of subsection (2), other courts have construed such a statute to have two separate and distinct functions.³ On one hand, it acts as a statute of repose, and on the other, as a statute of limitations. O'Brien v. Hazelet & Erdal, 410 Mich. 1, 299 N.W.2d 336, 341 (1980) (construing a six-year limitation for actions arising out of improvements to real property against architects and engineers); Oole v. Oosting, 82 Mich.App. 291, 266 N.W.2d 795, 799 (1978). One court has aptly described the nature of such statutes as that of a "hybrid." Smith v. American Radiator & Standard Sanitary Corp., 38 N.C.App. 457, 461, 248 S.E.2d 462, 465 (1978), cert. denied, 296 N.C.App. 586, 254 S.E.2d 33 (1979). Like a statute of limitations, the statute bars suits after a cause of action accrues. Like a statute of repose, since the time limit runs from a time of sale or use rather than from the time the action accrues, the statute may bar a suit before the cause of action even arises. The function as a statute of limitations has been described as procedural, affecting the remedy, whereas, the function as a statute of repose deals with substance, affecting the right. McGovern, The Status of Statutes at 418-19.

By analogy, subsection (2) of Neb. Rev.Stat. § 25-224 functions as a statute of repose when the ten-year period begins to run from the date the product is first sold. If injury were to occur outside of the ten-year period, no substantive cause of action would ever exist.

"It does not bar a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action, from ever arising.... The injured party literally has no cause of action. The harm that has been done is damnum absque injuria — a wrong for which the law affords no redress. The function of the statute is thus rather to define substantive rights than to alter or modify a remedy."

Colton v. Dewey, 212 Neb. 126, 321 N.W.2d 913 (1982) quoting Rosenberg v. North Bergen, 61 N.J. 190, 199-200, 293 A.2d 662, 667 (1972).⁴ However, in this case, since both the injury and the death occurred within ten years from the date the product was first sold, the statute of repose function of Neb.Rev.Stat. § 25-224(2) is not at issue.

In contrast, the function of Neb.Rev. Stat. § 25-224(2) as a statute of limitations is at issue. Like a statute of limitations, Neb.Rev.Stat. § 25-224(2) procedurally limits the period of time within which an accrued cause of action may be brought. Subsection (1) of Neb.Rev.Stat. § 25-224(1) provides that a products liability action must be brought within four years after the action accrues. Subsection (2) then states, "Notwithstanding subsection (1) of this section or any other statutory provision to the contrary," the action must be commenced within ten years from the date the product was first sold. The practical effect of this is for subsection (2) to function as a statute of limitations on any cause of action that accrues more than six but less than ten years after the date a product is first sold. At such point in time, the injured party no longer has a full four years within which to commence a suit. Rather the period of time in which the plaintiff may seek a remedy in the courts becomes progressively shorter. Theoretically, if a products liability cause of action accrues nine years three hundred and sixty four days after the date the product was first sold, Neb.Rev.Stat. § 25-224(2) mandates a one-day statute of limitation.

The general rule is "unless forbidden by the state constitution, a state legislature may constitutionally shorten the periods of limitation fixed by previously existing statutes.... The Legislature may reduce a period of limitations and apply a new and shorter period to previously accrued causes of action so long as a reasonable time is allowed to bring such action." Macku v. Drackett Prod. Co., 216 Neb. 176, 343 N.W.2d 58, 59-60 (1984). See Educational Service Unit No. 3 v. Mammel, Olsen, Schropp, Horn & Swartzbaugh, Inc., 192 Neb. 431, 222 N.W.2d 125 (1974); Greenhalgh v. Payson City, 530 P.2d 799 (Utah 1975); Bauld v. J.A. Jones Const. Co., 357 So.2d 401 (Fla.1978); Collier v. Smaltz, 149 Iowa 230, 128 N.W. 396 (1910); McCloskey & Co. v. Eckart, 164 F.2d 257 (5th Cir.1947); Davis & McMillan v. Industrial Acc. Com., 198 Cal. 631, 246 P. 1046 (1926).

II.

Before applying the separate functions of Neb.Rev.Stat. § 25-224(2) to this case, it is necessary to understand the nature of the plaintiff's causes of action and how they interact with general statutes of limitations. In essence, the plaintiff has two distinct causes of action. The first is the decedent's cause of action that survives his death. This encompasses what the plaintiff has labeled her second, third and fourth causes of...