State ex rel. Old Dominion Freight Line, Inc. v. Dally

• Decision Date: 14 June 2012
• Docket Number: No. SD 31711.,SD 31711.
• Citation: 369 S.W.3d 773
• Parties: STATE of Missouri ex rel. OLD DOMINION FREIGHT LINE, INC., Relator, v. The Honorable David C. DALLY, Twenty–Ninth Judicial Circuit, Jasper County, Missouri, Respondent.
• Court: Missouri Court of Appeals

369 S.W.3d 773

STATE of Missouri ex rel. OLD DOMINION FREIGHT LINE, INC., Relator,

v.The Honorable David C. DALLY, Twenty–Ninth Judicial Circuit, Jasper County, Missouri, Respondent.

No. SD 31711.

Missouri Court of Appeals,

Southern District,

Division Two.

June 14, 2012.

Deborah K. Dodge, Springfield, MO, for Appellant.

Gregory F. Payne, Carthage, MO, for Respondent.

WILLIAM W. FRANCIS, JR., J.

Old Dominion Freight Line, Inc. (“Old Dominion”), filed a Petition for Writ of Mandamus asking this Court to direct the trial court to grant Old Dominion's Motion for Summary Judgment based on Freddie L. Pruiett's (“Pruiett”) failure to file his personal injury action within the applicable statute of limitation. We make permanent our preliminary writ of mandamus.

Factual and Procedural History

On February 14, 2007, Pruiett and Clifton Miller, Jr. (“Miller”), were involved in a motor vehicle collision in Labette County, Kansas. Pruiett was driving a tractor-trailer unit, owned by TRI–COM, Inc., westbound on U.S. Highway 160. Miller was driving an Old Dominion tractor-trailer unit southbound on U.S. Highway 59. Miller stopped at a stop sign at the intersection of U.S. Highway 160 and U.S. Highway 59, but then proceeded to pull into the path of Pruiett's vehicle. According to the police report no injuries were reported, but there was property damage in excess of $1,000, and Pruiett's vehicle was towed away. Six to seven hours later, Pruiett sought medical treatment at Freeman Occupational Health Clinic (“Freeman”) in Joplin, Missouri. Pruiett's medical record showed he sought treatment for a headache and stiffness in his neck that did not begin for several hours following the accident. The medical record specifically noted:

SUBJECTIVE: Mr. Pruiett is a 34 year old male who was involved in a motor vehicle accident. He states he was a driver of a van or a truck when a semi tractor trailer pulled out in front of him and he hit it going 45 miles per hour. He did have his seatbelt on. He did not impact himself any where [sic] in the vehicle, but he did throw his head forward in a whiplash type injury. He was not really concerned about injury initially. He felt pretty good, but as the anxiety calmed down for him he has began [sic] having pain in the cervical spine and has developed a headache from the back of his head associated with the neck up over to the top of the head. He complains of increasing stiffness in the neck and a headache. He has no other areas of tenderness, stiffness or pain at this time.

On October 30, 2009, Pruiett filed suit in Jasper County, Missouri, against Old Dominion and Miller ¹ for personal injuries he sustained as a result of the February 14, 2007 collision in Kansas.² Pruiett alleged that Miller failed to yield to Pruiett's vehicle in that Miller entered the roadway in front of Pruiett and should have been “required to stop at the intersection as directed by traffic control....”

On December 14, 2009, Old Dominion filed its “Separate Answer of [Old Dominion] to [Pruiett]'s Petition.” Old Dominion asserted the defense that Pruiett's claim was “barred by operation of the running of the applicable statute of limitations, K.S.A. Sec. 60–513(a)(4), 2009, as adopted by R.S. Mo. 516.190.” ³K.S.A. 60–513(a)(4) provides that “[a]n action for injury to the rights of another, not arising on contract, and not herein enumerated[,]” shall be brought within two years. Old Dominion also filed a “Motion for Summary Judgment” arising out of this affirmative defense.

Pruiett contended that the Missouri statute of limitations applies as opposed to the Kansas statute because “[i]t is with that treatment and diagnosis of [Pruiett]'s injuries that his cause of action accrued and the statute of limitations began to run in Missouri, ...” Pruiett's response proffered two additional material facts with supporting exhibits: (1) at the time of the collision, there were no reported injuries; and (2) Pruiett sought treatment at Freeman in Joplin for a headache and stiffness in his neck that did not begin for several hours following the accident. The supporting exhibits included the “State of Kansas Motor Vehicle Accident Report” and Pruiett's medical record from Freeman.

Old Dominion admitted Pruiett's additional facts, but denied that the statements were material as to determining where Pruiett's injuries or cause of action arose.

The parties submitted briefs and conducted oral argument before the trial court on July 22, 2011. On August 5, 2011, the trial court overruled Old Dominion's Motion for Summary Judgment. Following this ruling, Old Dominion sought relief from this Court and a preliminary writ of mandamus was issued. Pruiett filed a writ answer, but did not file suggestions opposing the preliminary writ, nor a brief.⁴

Old Dominion's sole point relied on contends the trial court erred in denying its Motion for Summary Judgment because Old Dominion is immune from suit as a matter of law in that the trial court misapplied Missouri's borrowing statute, which would require Pruiett to file his action within two years from the date of the collision because Pruiett's cause of action originated in Kansas. As such, the issue pertinent to our resolution of this matter is whether the undisputed facts in this case establish the cause of action originated in Kansas and thus, is barred by the Kansas two-year statute of limitations. ⁵

Standard of Review

The denial of a motion for summary judgment is reviewed under the same standard of review as an order granting summary judgment. See State ex rel. Public Housing Agency of the City of Bethany v. Krohn, 98 S.W.3d 911, 913 (Mo.App. W.D.2003). Appellate review of a motion for summary judgment is de novo. Kinnaman–Carson v. Westport Ins. Corp., 283 S.W.3d 761, 764 (Mo. banc 2009). The Court reviews the record in the light most favorable to the party against whom summary judgment is sought. City of Bethany, 98 S.W.3d at 913. Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. ITT Commercial Finance Corp. v. Mid–America Marine Supply Corp., 854 S.W.2d 371, 381 (Mo. banc 1993). A defending party may establish a right to judgment as a matter of law by showing “that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense.” City of Bethany, 98 S.W.3d at 913 (internal quotation and citation omitted) (emphasis in original).

“Whether a writ should issue in a particular case is a question left to the sound discretion of the court to which application has been made.” Derfelt v. Yocom, 692 S.W.2d 300, 301 (Mo. banc 1985). A writ may be appropriate to prevent an abuse of judicial discretion and to avoid irreparable harm to a party, including unnecessary and expensive litigation. See State ex rel. Henley v. Bickel, 285 S.W.3d 327, 330 (Mo. banc 2009). Because the undisputed facts show Pruiett's claim was barred by the Kansas statute of limitations and the trial court refused to grant summary judgment, a writ of mandamus is the appropriate remedy in this case to prevent unnecessary and expensive litigation.

Analysis

“When a cause of action ‘originates' in another state ... the foreign state's statute of limitations becomes applicable through Missouri's borrowing statute, section 516.190.” ⁶Ferrellgas, Inc. v. Edward A. Smith, P.C., 190 S.W.3d 615, 620 (Mo.App. W.D.2006). Section 516.190 provides: “Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state.” § 516.190. “Thus, if the foreign state's statute of limitations bars the action, then Missouri's borrowing statute acts to bar the action here as well.” Ferrellgas, 190 S.W.3d at 620.

“ ‘Originated,’ as used in the statute, has been construed to mean ‘accrued.’ ” Thompson by Thompson v. Crawford, 833 S.W.2d 868, 871 (Mo. banc 1992). Section 516.100 states in relevant part that

for the purposes of sections 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, ...

“ ‘Because a cause of action originates where it accrues, § 516.100 not only determines when a cause of action accrues but where it accrues for purposes of determining whether the borrowing statute operates to bar an action.’ ” Wright v. Campbell, 277 S.W.3d 771, 774 (Mo.App. W.D.2009) (quoting Day v. deVries and Associates, P.C., 98 S.W.3d 92, 95 (Mo.App. W.D.2003)). “Accordingly, a cause of action accrues, and ‘originates' for purposes of § 516.190, when and where the damage ‘is sustained and is capable of ascertainment.’ ” Wright, 277 S.W.3d at 774.

Missouri law does not declare that a cause of action originates when tortious conduct occurs. Notably, the Supreme Court of Missouri has emphasized that “the mere occurrence of an injury itself does not necessarily coincide with the accrual of a cause of action” because “[s]uch a reading would deprive the additional language ‘and is capable of ascertainment’ of any meaning.” Martin v. Crowley, Wade and Milstead, Inc., 702 S.W.2d 57, 58 (Mo. banc 1985). However, the supreme court has also rejected that the proper interpretation of “capable of ascertainment” is “when plaintiff subjectively should have discovered the injury and damages.” Powel v. Chaminade College Preparatory, Inc., 197 S.W.3d 576, 581 (Mo. banc 2006).

[I]f damages are not capable of ascertainment at either the time of the wrong or the time of [actual] discovery of the wrong and resulting damages, then what is the test for when damages are capable of ascertainment? Although this Court has not previously clearly articulated a specific, generally applicable test to...