Smith, Miller and Patch v. Lorentzson
| Decision Date | 15 March 1985 |
| Docket Number | No. 41503,41503 |
| Citation | 327 S.E.2d 221,254 Ga. 111 |
| Parties | SMITH, MILLER AND PATCH v. LORENTZSON. |
| Court | Georgia Supreme Court |
Ben L. Weinberg, Jr., M. Diane Owens, Long, Weinberg, Ansley & Wheeler, Atlanta, for Smith, Miller and Patch.
James T. McDonald, Jr., Swift, Currie, McGhee, & Hiers, George W. Hart, Alexander H. Booth, Hart & Sullivan, P.C., Atlanta, for Clarence Lorentzson et al.
Lorentzson, the plaintiff, appealed orders granting summary judgment to Dr. Rowell and Smith, Miller and Patch, the co-defendants in this case. The Court of Appeals reversed both judgments, Lorentzson v. Rowell, 171 Ga.App. 821, 321 S.E.2d 341 (1984), and each co-defendant applied for a writ of certiorari. We denied Dr. Rowell's application, but granted certiorari in Smith, Miller and Patch's appeal to consider the following questions:
1. The Court of Appeals held "that the statute of limitation ... [a]s to products liability ... is now ten years (OCGA § 51-1-11, formerly Code Ann. § 105-106)." Lorentzson, supra, 171 Ga.App. at 825, 321 S.E.2d 341. This is incorrect. The nature of the injury sustained in this case is an injury to the person, and OCGA § 9-3-33 therefore applies to Lorentzson's products liability claims. Daniel v. American Optical Corporation, 251 Ga. 166, 304 S.E.2d 383 (1983).
2. OCGA § 9-3-96 provides that "[i]f the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff's discovery of the fraud." See Trust Co. Bank v. Union Circulation Co., 241 Ga. 343, 245 S.E.2d 297 (1978). Smith, Miller and Patch is not "claiming under" Dr. Rowell, and his alleged fraud is therefore not imputable to the manufacturer so as to toll the statute of limitation. Id.
With the exception of the language disapproved in Division 1 of this opinion, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
All the Justices concur.
I concur in the majority opinion and in the judgment. In its opinion, the Court of Appeals said: "Under ... the facts of this case admitted by the parties and uncontroverted, this court is unable to ascertain...
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...Conn. 451, 459, 472 A.2d 1257 (1984); University of Miami v. Bogorff, 583 So.2d 1000, 1004–1005 (Fla.1991); Smith, Miller & Patch v. Lorentzson, 254 Ga. 111, 327 S.E.2d 221 (1985); Stankiewicz v. Estate of LaRose, 151 Vt. 453, 455, 561 A.2d 400 (1989). See also Bates v. Preble, 151 U.S. 149......
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...upon an alleged tort, the limitations statute governing actions for personal injuries is controlling.”); Smith, Miller & Patch v. Lorentzson, 254 Ga. 111, 111, 327 S.E.2d 221 (1985) (applying O.C.G.A. § 9–3–33 to products liability claims based on personal injuries); Daniel v. Am. Optical C......
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