Nowotny v. L & B Contract Industries, Inc., No. 96-62

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore TAYLOR; THOMAS
Citation933 P.2d 452
PartiesProd.Liab.Rep. (CCH) P 15,027 Gary R. NOWOTNY and Carla Nowotny, Appellants (Plaintiffs), v. L & B CONTRACT INDUSTRIES, INC., formerly L & B Products, Inc., a New York corporation, Appellee (Defendant).
Decision Date07 March 1997
Docket NumberNo. 96-62

Page 452

933 P.2d 452
Prod.Liab.Rep. (CCH) P 15,027
Gary R. NOWOTNY and Carla Nowotny, Appellants (Plaintiffs),
v.
L & B CONTRACT INDUSTRIES, INC., formerly L & B Products, Inc., a New York corporation, Appellee (Defendant).
No. 96-62.
Supreme Court of Wyoming.
March 7, 1997.

Page 454

Frederick J. Harrison of Harrison & Massey, LLC, Rawlins, for Appellants.

Curtis B. Buchhammer of Orr, Buchhammer & Kehl, PC, Cheyenne, for Appellee.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.

THOMAS, Justice.

The main issue to be addressed in this case is whether we should expand the discovery rule for triggering the statute of limitations for personal injuries to include knowledge of the identity of the tort-feasor. This issue presents a conflict between a policy of providing a means of redress to an injured person and the policy of adoption of a statute of limitations, which frees the judicial system from litigation of stale claims and spares other parties from the defense of claims when memories have faded, witnesses have become unavailable, and evidence has been lost. Collateral issues are presented with respect to the application of the tolling statute and its possible unconstitutionality; the relation back of amendments to the complaint under WYO.R.CIV.P. Rule 15(c); abuse of discretion on the part of the trial court in setting aside a default entered in favor of the plaintiffs, Gary R. Nowotny and Carla Nowotny (Nowotnys); and denying the Nowotnys' motion to hold summary judgment proceedings in abeyance pending further discovery. The Nowotnys sought recovery for personal injuries sustained by Gary R. Nowotny when an allegedly defective restaurant bench seat collapsed. A Summary Judgment was entered in favor of L & B Contract Industries, Inc. (L & B) because the action was not commenced as to L & B before the statute of limitations had run. The Nowotnys ask this court to expand our discovery rule pertaining to the statute of limitations so that it is not triggered until the identity of the tort-feasor is known. L & B contends that the statute commenced to run when the injury was discovered or in the exercise of reasonable diligence should have been discovered. We hold that the discovery of Nowotny's injury occurred at the time the restaurant seat broke causing his injuries, and reject the argument that discovery did not occur until the identity of the manufacturer of the seat was known. The Order Granting Defendant's Motion for Summary Judgment is affirmed.

The Nowotnys frame the issues in this way, in the Brief of Appellants:

I. Whether the District Court erred in determining that the cause of action accrued on the date of injury, when Appellants did not discover who caused the injury until later.

II. Whether the District Court erred in concluding that the tolling statute did not apply.

III. Whether the District Court erred in concluding that the third amended complaint did not relate back.

IV. Whether the District Court abused its discretion and erred in setting aside the entry of default under Wyo.R.Civ.P. 55(c).

V. Whether the District Court erred in denying Appellants' motion to hold summary judgment in abeyance.

In its Brief of Appellee, L & B states these issues:

I. Did the trial court properly determine that Appellants' cause of action accrued on January 17, 1991, and that the statute of limitations for their claims against L & B

Page 455

Contract Industries, Inc. ran on January 17, 1995?

II. Did the trial court properly determine that the statute of limitations for appellants' claims was not tolled by W.S. § 1-3-116?

III. Does W.S. § 1-3-116 violate the United States Constitution's commerce clause, Art. 1, § 8, CL.3?

IV. Did the trial court properly determine that appellants' third amended complaint did not relate back under the provisions of Rule 15(c), W.R.C.P.?

V. Did the trial court properly exercise its discretionary power in setting aside the default entered against L & B Contract Industries, Inc.?

VI. Did the trial court act properly in denying Appellants' motion to hold summary judgment in abeyance?

More than a decade ago we summarized our standard of review for summary judgment cases in Thomas by Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 1303, 1304 (Wyo.1985):

We have frequently reiterated our standard of review of summary judgments.

" 'When a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record.' Reno Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147, 150 (1981). See also, Blackmore v. Davis Oil Company, Wyo., 671 P.2d 334, 336 (1983).

"A summary judgment should only be granted where it is clear that there are no issues of material facts involved and that an inquiry into the facts is unnecessary to clarify the application of law. Johnson v. Soulis, Wyo., 542 P.2d 867 (1975). A material fact is one which has legal significance. Johnson v. Soulis, supra. It is a fact which would establish a defense. Wood v. Trenchard, Wyo., 550 P.2d 490 (1976). After the movant establishes a prima facie case the burden of proof shifts to the opposing party who must show a genuine issue of material fact, Gennings v. First Nat'l Bank of Thermopolis, Wyo., 654 P.2d 154 (1982), or come forward with competent evidence of specific facts countering the facts presented by the movant. Matter of Estate of Brosius, Wyo., 683 P.2d 663 (1984). The burden is then on the nonmoving party to show specific facts as opposed to general allegations. 10 Wright & Miller, Federal Practice and Procedure: Civil § 2727, p. 538. The material presented must be admissible evidence at trial. Conclusory statements are not admissible. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980). We give the party defending the motion the benefit of any reasonable doubt." Roth v. First Security Bank of Rock Springs, Wyoming, Wyo., 684 P.2d 93, 95 (1984).

The same standard is in vogue today. E.g., Martin v. Alley Const., Inc., 904 P.2d 828, 831 (Wyo.1995); Duncan v. Town of Jackson, 903 P.2d 548, 551 (Wyo.1995).

We are persuaded that there is no genuine issue as to these material facts. On January 17, 1991, Gary Nowotny sustained severe injuries when an allegedly defective restaurant bench seat located at the Golden Corral Restaurant in Rock Springs collapsed under him. No identifying marks were found on the bench that disclosed where or by whom it had been manufactured. The Nowotnys filed a complaint on January 27, 1994, in which the owners of the Golden Corral were named as defendants. The owners settled the claims against them, and the action was dismissed with prejudice as to them on August 24, 1995.

In the meantime, the Nowotnys filed an amended complaint on September 30, 1994,

Page 456

which added L & B Products, Inc., an Illinois corporation, as a defendant. A second amended complaint was filed on October 28, 1994, which added a claim arising out of the doctrine of strict liability in the cause of action against L & B Products, Inc. The Nowotnys attempted on numerous occasions to obtain service upon L & B Products, Inc., the Illinois corporation, but neither of these amended complaints ever was served on the Illinois corporation. Later the Nowotnys determined that corporation was not the manufacturer of the bench seat.

On February 22, 1995, more than four years after Gary Nowotny was injured, the Nowotnys were advised by the owners of the Golden Corral that the corporate offices for L & B Products, Inc., the company that manufactured the bench, were located in New York. Further investigation by the Nowotnys developed the fact that the manufacturing corporation's name had been changed to L & B Contract Industries, Inc., a New York corporation. On February 24, 1995, the owners of the Golden Corral sent a claim for indemnification to L & B Contract Industries, Inc. using certified mail, for which the return receipt was signed, dated February 28, 1995.

A third amended complaint was filed by the Nowotnys on April 12, 1995 which changed the named corporate defendant from L & B Products, Inc. to L & B Contract Industries, Inc., a New York corporation. By then, the Nowotnys had concluded that L & B Products, Inc., an Illinois corporation, had not manufactured the restaurant bench seat. The third amended complaint was served on L & B Contract Industries, Inc. on May 4, 1995. On June 8, 1995, entry of default was made against L & B Contract Industries, Inc., but the trial court set aside the entry of default on January 2, 1996.

L & B then filed a motion for summary judgment based upon the expiration of the statute of limitations prior to the commencement of the action against it, and on January 2, 1996 the trial court granted that motion for summary judgment. The trial court ruled that there were no genuine issues of material fact concerning the running of the statute of limitations; that L & B had not been served until May 4, 1995, while the four year statute of limitations had run on January 17, 1995; that the requirements of WYO.R.CIV.P. had not been satisfied so the amended complaint did not relate back to the original complaint; and L & B was entitled to judgment as a matter of law.

In Wyoming a four year period of limitations is specified for actions for personal injury by WYO.STAT. § 1-3-105(a)(iv)(C) (1988),...

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40 practice notes
  • Harrington v. Costello, SJC–11383.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 9, 2014
    ...see, e.g., Guebard v. Jabaay, 65 Ill.App.3d 255, 258–259, 21 Ill.Dec. 620, 381 N.E.2d 1164 (1978); Nowotny v. L & B Contract Indus., Inc., 933 P.2d 452, 457–458 (Wyo. 1997) (declining to extend discovery rule to delay accrual until identity of tortfeasor is known or reasonably knowable). Bu......
  • Tarnowsky v. Socci, No. 16992
    • United States
    • Supreme Court of Connecticut
    • September 28, 2004
    ...A.2d 681 (1982); Mellon Service Co. v. Touche Ross & Co., 17 S.W.3d 432, 436 (Tex.App.2000); Nowotny v. L & B Contract Industries, Inc., 933 P.2d 452, 457-58 6. We note that General Statutes § 52-68(a) provides that the Superior Court may make an order "in regard to the notice which shall b......
  • Robert L. Kroenlein Trust v. Kirchhefer, No. S–14–0296.
    • United States
    • United States State Supreme Court of Wyoming
    • September 17, 2015
    ...of action arose, when it arose and when the time expired for pursing the applicable judicial remedy.Nowotny v. L & B Contract Indus., 933 P.2d 452, 458 (Wyo.1997) (quoting Duke v. Housen, 589 P.2d 334, 340 (Wyo.1979) ) (emphasis in original).[¶ 24] More recently, we have observed:The purpos......
  • Robert L. Kroenlein Trust By & Through Deborah Alden, Successor Tr., & Chugwater Brewing Co. v. Gary Bruce Kirchhefer, Commodore Bar, Inc., S-14-0296
    • United States
    • United States State Supreme Court of Wyoming
    • September 17, 2015
    ...of action arose, when it arose and when the time expired for pursing the applicable judicial remedy.Page 12Nowotny v. L&B Contract Indus., 933 P.2d 452, 458 (Wyo. 1997) (quoting Duke v. Housen, 589 P.2d 334, 340 (Wyo. 1979)) (emphasis in original).[¶24] More recently, we have observed:The p......
  • Request a trial to view additional results
40 cases
  • Harrington v. Costello, SJC–11383.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 9, 2014
    ...see, e.g., Guebard v. Jabaay, 65 Ill.App.3d 255, 258–259, 21 Ill.Dec. 620, 381 N.E.2d 1164 (1978); Nowotny v. L & B Contract Indus., Inc., 933 P.2d 452, 457–458 (Wyo. 1997) (declining to extend discovery rule to delay accrual until identity of tortfeasor is known or reasonably knowable). Bu......
  • Tarnowsky v. Socci, No. 16992
    • United States
    • Supreme Court of Connecticut
    • September 28, 2004
    ...A.2d 681 (1982); Mellon Service Co. v. Touche Ross & Co., 17 S.W.3d 432, 436 (Tex.App.2000); Nowotny v. L & B Contract Industries, Inc., 933 P.2d 452, 457-58 6. We note that General Statutes § 52-68(a) provides that the Superior Court may make an order "in regard to the notice which shall b......
  • Robert L. Kroenlein Trust v. Kirchhefer, No. S–14–0296.
    • United States
    • United States State Supreme Court of Wyoming
    • September 17, 2015
    ...of action arose, when it arose and when the time expired for pursing the applicable judicial remedy.Nowotny v. L & B Contract Indus., 933 P.2d 452, 458 (Wyo.1997) (quoting Duke v. Housen, 589 P.2d 334, 340 (Wyo.1979) ) (emphasis in original).[¶ 24] More recently, we have observed:The purpos......
  • Robert L. Kroenlein Trust By & Through Deborah Alden, Successor Tr., & Chugwater Brewing Co. v. Gary Bruce Kirchhefer, Commodore Bar, Inc., S-14-0296
    • United States
    • United States State Supreme Court of Wyoming
    • September 17, 2015
    ...of action arose, when it arose and when the time expired for pursing the applicable judicial remedy.Page 12Nowotny v. L&B Contract Indus., 933 P.2d 452, 458 (Wyo. 1997) (quoting Duke v. Housen, 589 P.2d 334, 340 (Wyo. 1979)) (emphasis in original).[¶24] More recently, we have observed:The p......
  • Request a trial to view additional results

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