Roe v. Diefendorf
| Decision Date | 26 October 1984 |
| Docket Number | No. 56352,56352 |
| Citation | 689 P.2d 855,236 Kan. 218 |
| Parties | Michael J. ROE, Appellee, v. Laura DIEFENDORF, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Pursuant to K.S.A. 60-513(b), the statute of limitations starts to run in a tort action at the time a negligent act causes injury if both the act and the resulting injury are reasonably ascertainable by the injured party.
2. The phrase "substantial injury" in K.S.A. 60-513(b) is construed to mean "actionable injury."
3. In a personal injury action growing out of an automobile-motorcycle collision, filed two and one-half years after the accident, it is held: The statute of limitations ran before the action was filed.
John F. Stites, of Stites, Hill & Wilson, Manhattan, argued the cause and was on brief for appellant.
Jeffrey Ray Elder, of Myers & Pottroff, Manhattan, argued the cause and Robert L. Pottroff, Manhattan, of the same firm, was with him on brief for appellee.
This is a civil action by Michael J. Roe seeking recovery from Laura Diefendorf for bodily injuries from her negligence in an automobile accident.
As a preliminary matter Roe argues there are two reasons Diefendorf's statement of facts in her brief should not be accepted by the court. First, it is claimed there is improper citation to the record. Diefendorf does not identify the record as recommended, rather, she cites it according to the document name and page number. We prefer the uniform method of citation, but we accept Diefendorf's brief since the references to the record are clear and ascertainable.
Second, Roe argues Diefendorf's facts are improper because she uses deposition testimony to support her factual statements, citing Zehring v. Wickham, 8 Kan.App.2d 65, 649 P.2d 1246 (1982), rev'd on other grounds, 232 Kan. 704, 658 P.2d 1004 (1983). Zehring is not on point. It held citation to the depositions in that case was improper because the depositions were not part of the record on appeal. In the instant case, the depositions were filed with the district court and are a part of the record. Roe's objections are overruled.
The accident which forms the basis of this action occurred on November 14, 1979, on 4th Street in Clay Center. Roe claims Diefendorf negligently drove her vehicle into his motorcycle. As a result, Roe received injuries to his lower back for which he is now seeking damages.
Roe was in pain and laid off from his job for several days immediately after the accident due to his back injury. During this time, Roe was under the care of Dr. Carleton.
In February of 1981 Roe reinjured his back. He alleges he was not aware of the full extent of the injuries for which he is now seeking to recover until that time. Dr. Carleton stated he did not detect a significant injury to appellee's lower back until February of 1981.
This action was filed in Clay County district court on June 28, 1982, two and one-half years after the accident.
Dr. Wertin, a chiropractor who examined Roe in April, 1982, testified Roe told him he had experienced pain and trouble with his lower back and left hip constantly for two and one-half years since being involved in an automobile-motorcycle accident on November 14, 1979. Dr. Wertin also testified the X rays taken after the November 14, 1979 accident showed a slight decrease in the fourth lumbar disc. In the patient case history filled out for Dr. Wertin by Roe, Roe stated the ailment or injury of which he was complaining occurred two and one-half years earlier in an automobile accident. Dr. Wertin testified he believed appellee knew he was injured in the accident on November 14, 1979.
Fred Dressie, insurance agent for Diefendorf, stated he was contacted prior to October 28, 1980, by Roe seeking payment from Diefendorf's insurance company for his medical bills and injuries. On March 11, 1981, Dressie contacted Roe to inquire about the extent of his injuries. Roe stated to Fred Dressie that he had pain and suffering in his lower back and left leg as a result of the accident with Diefendorf. Prior to September 9, 1981, Dressie had been in contact with Roe's attorney about compensation for Roe's injuries.
On October 12, 1983, the trial court ruled against Diefendorf's motion for summary judgment. The court held the statute of limitations had not run in this case because Roe did not realize he had incurred substantial injury until February 1981, and that pursuant to K.S.A. 60-513(b), the statute of limitations had not run. Diefendorf was granted an interlocutory appeal from this order of the district court on two certified issues dealing with the question of when the statute of limitations begins to run in a personal injury action under K.S.A. 60-513(b).
The applicable period of limitations is two years pursuant to K.S.A. 60-513(a). This case was filed two years and seven months after the accident occurred. Roe argues the two-year statute of limitations was tolled under K.S.A. 60-513(b) because the extent of his injuries was unknown until February 1981. K.S.A. 60-513(b) provides:
"Except as provided in subsection (c) of this section, the cause of action in this action [section] shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action."
Diefendorf maintains this means the statute of limitations begins to run either when the act causing the substantial injury occurs or when the fact of injury is ascertainable by the injured party. Under either interpretation the statute of limitations in this case would have begun to run on November 14, 1979, when the accident occurred. If this construction is correct, Roe's action, which was filed on June 28, 1982, was filed out of time.
On the other hand, Roe contends K.S.A. 60-513(b) should be interpreted to mean the statute of limitations begins to run when the fact of substantial injury is known to the injured party. This requires reading the two provisions of the statute together. Such a construction requires a factual determination as to the date an injured party should have gained knowledge of the extent of injury. This was the interpretation relied upon by the trial court. Thus, appellant's motion for summary judgment was denied on the theory there was a substantial question of material fact as to the date Roe knew or should have known he was substantially injured.
To resolve the issue, let us examine the history of the statute. In 1951, we ruled tort actions accrue, not when the alleged tortious act is committed, but on the date the wrongful act caused injury. See Kitchener v. Williams, 171 Kan. 540, 236 P.2d 64 (1951). Kitchener involved an explosion in a house caused by negligent installation and servicing of a heater. When the injury occurred, two years had long since passed from the date of the negligent installation. We have noted there can be no cause of action or reason to sue until an injury results. This is fundamental to a negligence action. Thus, the statute of limitations commences to run when the injury, resulting from the negligent act, occurs. That is the date the cause of action accrues.
The rule in Kitchener was codified in K.S.A. 60-513(b). See Ruthrauff, Administratrix v. Kensinger, 214 Kan. 185, 192, 519 P.2d 661 (1974), for our construction of the statute. We held:
"[W]e hold the period for bringing an action based on negligent tort as limited by K.S.A. 1973 Supp. 60-513 does not begin until the tortious act first causes substantial injury ...."
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