Morningstar v. General Motors Corp., Civ. A. No. 3:93-cv-186WS.

• Decision Date: 09 February 1994
• Docket Number: Civ. A. No. 3:93-cv-186WS.
• Citation: 847 F. Supp. 489
• Parties: J. Donna MORNINGSTAR, Individually, and J. Donna Morningstar, as Administrator of the Estate of Marvin Douglas Morningstar, Deceased, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of Mississippi

847 F. Supp. 489

J. Donna MORNINGSTAR, Individually, and J. Donna Morningstar, as Administrator of the Estate of Marvin Douglas Morningstar, Deceased, Plaintiff, v. GENERAL MOTORS CORPORATION, Defendant.

Civ. A. No. 3:93-cv-186WS.

United States District Court, S.D. Mississippi, Jackson Division.

February 9, 1994.

Robert G. Germany, Jackson, MS, for plaintiff.

Gene D. Berry, Jackson, MS, for defendant.

MEMORANDUM OPINION AND ORDER

WINGATE, District Judge.

Before the court is the motion of the defendant, General Motors Corporation (hereinafter "GM"), for summary judgment or, in the alternative, for change of venue pursuant to 28 U.S.C. § 1404(a) (1988). The court will treat this motion as one for summary judgment pursuant to Rule 56(c),¹ Federal Rules of Civil Procedure. Having considered the motion, the response, and the arguments in memoranda of the parties, the court is persuaded that the defendant's motion for summary judgment is well taken and should be granted.

PARTIES AND JURISDICTION

Plaintiff J. Donna Morningstar and plaintiff's decedent, Marvin Douglas Morningstar, are citizens of the State of Kansas. GM is a corporation organized and existing under the laws of the State of Delaware and conducts business in the State of Mississippi. This case was removed to this court from the Circuit Court of the First Judicial District of Hinds County. Thus, this matter is properly before the court pursuant to removal jurisdiction, 28 U.S.C. § 1441(a) (1988), and diversity jurisdiction, 28 U.S.C. § 1332 (1988).

FACTS

On March 22, 1987, Marvin Douglas Morningstar died as a result of injuries sustained in an automobile accident that occurred in Kansas. Apparently, Mr. Morningstar was struck by another vehicle on the right side of his 1984 Chevrolet pickup truck. The impact caused the fuel tank to rupture and explode. Mr. Morningstar was killed in the fire that ensued.

On March 19, 1993, plaintiff filed this wrongful death action in Hinds County Circuit Court alleging that GM, the designer and manufacturer of the pickup truck, defectively designed the truck at the center of this litigation.

Defendant GM has moved for summary judgment on the ground that this action is barred by a Kansas statute of limitations of two years for wrongful death actions. See Kan.Stat.Ann. § 60-513(a)(5). Defendant argues that Mississippi's conflict of law principles require this court to apply Kansas's two year statute of limitations period and dismiss the case sub judice.

In the alternative, defendant asks that the court transfer this case to the United States District Court for the District of Kansas. The defendant cites convenience of the parties and witnesses and judicial economy as principal reasons for transferring this case.

Plaintiff, on the other hand, argues that the Mississippi statute of limitations in effect at the time of this accident is applicable to this case. See Miss.Code Ann. § 15-1-49 (1972). Since the former statute of limitations for wrongful death was six years, plaintiff believes that this action is timely filed. Plaintiff also believes venue is proper here in the Southern District of Mississippi and that the court need not consider transferring this action to the District of Kansas.

DISCUSSION

SUMMARY JUDGMENT

A moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In response to a summary judgment motion, the adverse party must show that there exists a dispute over issues of fact which must be resolved at trial. Fed.R.Civ.P. 56(e); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the adverse party is unable to make such a showing, the moving party prevails.

In a diversity action such as this, the court is bound to apply Mississippi's conflict of laws rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); King v. Otasco, Inc., 861 F.2d 438, 441 (5th Cir.1988); Davis v. National Gypsum Co., 743 F.2d 1132, 1133 (5th Cir.1984). Mississippi applies the "center of gravity" test to determine which state's law applies to a given case. Mitchell v. Craft, 211 So.2d 509, 516 (Miss.1968). See also Boardman v. United Serv. Automobile Ass'n, 742 F.2d 847 (5th Cir.), certifying questions to Miss.Sup. Ct., 763 F.2d 663 (5th Cir.1984), answer, 470 So.2d 1024, 1031 (Miss.), remanded to district court with instructions, 768 F.2d 718 (5th Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 384, 88 L.Ed.2d 337 (1985); Restatement (Second) of Conflict of Laws §§ 175, 145, 6 (1969).

The general rule in choice-of-law situations is that a Mississippi court will apply its own state procedural law. See Davis, 743 F.2d at 1134; Maryland Casualty Co. v. Williams, 377 F.2d 389, 394 (5th Cir.1967); Shewbrooks v. A.C. & S., Inc., 529 So.2d 557, 566-67 (Miss.1988); Guthrie v. Merchant Nat'l Bank of Mobile, 254 Miss. 532, 545, 180 So.2d 309, 315 (1965). And, as to matters of substantive law, Mississippi courts will apply the law of the state where the injury occurred unless, with respect to some particular issue, another state has a more significant relationship to the occurrence or parties. See Davis, 743 F.2d at 1134; Mitchell, 211 So.2d at 515; see also Restatement (Second) of Conflict of Laws § 175.

Furthermore, Mississippi follows the traditional rule that a statute of limitation is deemed "procedural" rather than "substantive." Williams v. Taylor Machinery, Inc., 529 So.2d 606, 609 (Miss.1988). However, a well-established exception exists where a particular state's limitations period is considered to be part of its substantive law because the limitations period is "built in" or "in the same enactment" as the statute which creates the right of action. See, e.g., Siroonian v. Textron, Inc., 844 F.2d 289, 292 (5th Cir. 1988) (holding that in a wrongful death action brought in Mississippi court pursuant to diversity jurisdiction and applying Kentucky substantive law, Kentucky's statute of limitations is considered substantive and thus governed the case); Price v. Litton Sys., Inc., 784 F.2d 600, 605 (5th Cir.1986) (holding that in a wrongful death action brought in Mississippi court pursuant to diversity jurisdiction and applying Alabama substantive law, Alabama's statute of limitations is considered substantive and thus governed the case); White v. Malone Properties, Inc., 494 So.2d 576, 577-78 (Miss.1986) (holding that a Louisiana statute of limitations is considered substantive when contained in the text of a statute which creates a new right); Bethlehem Steel Co. v. Payne, 183 So.2d 912, 916 (Miss.1966) (same). The Fifth Circuit has succinctly stated this principle: "Mississippi honors the construction given a statute of limitations by the courts of the state whose legislature enacted it." Price, 784 F.2d at 605 (quoting Davis, 743 F.2d at 1134; Ramsay v. Boeing, 432 F.2d 592 at 599 (5th Cir.1970)).

This court must now determine whether Kansas considers its applicable statute of limitation to be procedural or substantive.

There exists a long history of jurisprudence from Kansas courts on the subject. Beginning with the case of Rodman v. Missouri Pacific Railway Company, 65 Kan. 645, 70 P. 642 (1902), the Kansas Supreme Court declared that:

"It seems that provisions in the statutes authorizing actions for wrongful death which limit the time within which the actions shall be brought are not properly statutes of limitation, as that term is generally used...." citation omitted

A review of the authorities bearing upon the question controverted compels us to hold that the scope and effect of the act Kansas Death Act above quoted is not merely to provide a remedy for a cause of action existing independent of the act itself, but to create a cause or right of action where prior to the passage or in the absence of the act none existed. As a part of the right of action itself, as a condition imposed upon and in limitation of the exercise of the right granted, it is provided that the action upon which recovery is had must be commenced within two years from the time the right of action arose.

Id., 65 Kan. at 653-54, 70 P. at 644-45; see also Bowles v. Portelance, 145 Kan. 940, 941, 67 P.2d 419, 420 (1937) (holding that a two-year limitation on wrongful death action "is a condition imposed upon the exercise of the right granted.").

Plaintiff has intimated that because the statute of limitations was removed from the text of the Kansas wrongful death statute, the limitations period can not be considered substantive. However, the court is unpersuaded by this argument.

In 1963, the Kansas legislature enacted a new Code of Civil Procedure and the new enactment placed the wrongful death statute of limitation in the general limitation section. See Kan.Stat.Ann. § 60-513(a)(5). The Kansas Wrongful Death Actions statute now appears in Kan.Stat.Ann. § 60-1901. Despite this reorganization of the statutes, the Kansas Supreme Court has found this to have no effect on the substantive nature of the statute of limitations. As the Court stated:

This change in the statute does not appear to be anything more than a transfer of the statute of limitations provision from the wrongful death statute to the article in the Code of Civil Procedure which generally governs the statute of limitations for all actions. citations omitted The change was made by the 1963 Legislature when our new Code of Civil Procedure was revised and enacted in its present form. We do not attach any significance to the deletion of the statute of limitations provision from the

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