Susman v. Kearney Towing & Repair Ctr., Inc.

• Decision Date: 11 February 2022
• Docket Number: S-21-277.
• Citation: 310 Neb. 910,970 N.W.2d 82
• Parties: Rysta Leona SUSMAN et al., appellants, v. KEARNEY TOWING & REPAIR CENTER, INC., a Nebraska corporation, appellee.
• Court: Nebraska Supreme Court

310 Neb. 910

970 N.W.2d 82

Rysta Leona SUSMAN et al., appellants,

v.KEARNEY TOWING & REPAIR CENTER, INC., a Nebraska corporation, appellee.

No. S-21-277.

Supreme Court of Nebraska.

Filed February 11, 2022

Michael F. Coyle, Omaha, and Karson S. Kampfe, of Fraser Stryker, P.C., L.L.O., for appellants.

Kristina J. Kamler and Stephen G. Olson II, of Engles, Ketcham, Olson & Keith, P.C., Omaha, for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Freudenberg, J.

INTRODUCTION

A vehicle owned by a construction company was involved in an accident that occurred when a rear tire of the vehicle suffered a tread separation. Employees of the construction company that were passengers of the vehicle at the time of the accident were injured. The employees brought a suit against the tire repair company that mounted the tire for the construction company, alleging ordinary negligence. Their action was brought more than 4 years after the installation of the tire but within 4 years of the accident. The tire repair company filed a motion for summary judgment based on the 4-year statute of limitations, which was initially denied but was ultimately granted upon a motion to reconsider. Plaintiffs appeal.

BACKGROUND

Rysta Leona Susman, both individually and as natural mother of Shane Allen Loveland, a protected person; Loveland, by and through his temporary guardian and conservator, John Sauder; and Jacob Summers (individually and collectively Loveland and Summers), filed a complaint against Kearney Towing & Repair Center, Inc. (Kearney Towing), on April 12, 2019, for negligence and breach of contract regarding a single-vehicle accident of a pickup truck, in which Loveland and Summers were passengers, occurring on May 1, 2015. The pickup was owned by Loveland's and Summers’ employer, Dandee Concrete Construction, Inc. (Dandee Concrete).

The complaint alleged that the accident occurred when the right rear tire of the pickup truck suffered a tread separation which caused the driver to lose control, resulting in a rollover. The complaint alleged that Kearney Towing "inspected, mounted, installed and balanced the used tires," which were on the pickup truck involved in the accident, and that at the time the used tires were installed, "the tires were 20 years of age in that they were manufactured in 1994."

The complaint alleged that Kearney Towing was negligent in that Kearney Towing holds itself out to the public as experts in "tire inspections, auto inspections and automobile maintenance"; owes a duty to all customers and all individuals, including but not limited to Loveland and Summers; and is obligated to perform its work in a reasonably skilled and safe manner. Loveland and Summers alleged that Kearney Towing breached this duty and was negligent in the manner in which it inspected the used tires and installed them on the pickup truck. The complaint alleged that the negligence of Kearney Towing was the direct and proximate cause of both Loveland's and Summers’ "catastrophic injuries."

In its answer, Kearney Towing affirmatively alleged, among other things, that Loveland and Summers’ claim was barred by the applicable statute of limitations. Kearney Towing filed a motion for summary judgment on the basis that the matter was barred by the 4-year statute of limitations "provided for oral contracts and as set forth in Neb. Rev. Stat. § 25-206."

As part of this motion, Kearney Towing filed a statement of undisputed facts. The undisputed facts stated that the case revolved around a single-vehicle accident that occurred on May 1, 2015. Loveland and Summers alleged in the complaint that Kearney " ‘inspected, mounted, installed and balanced the used tires that were on the subject 2003 Chevrolet Silverado SC1 truck occupied by ... Loveland and ... Summers at the time of the accident.’ " Forming the basis of the complaint was an invoice by Kearney Towing, dated June 10, 2014, which was issued to Loveland's and Summers’ employer, Dandee Concrete. This invoice stated that Kearney Towing performed "SCRAP TIRE 13-17 INCH TIRE" and "MOUNT AND BALANCE TIRE." The pickup truck involved in this incident was owned by Dandee Concrete. Loveland and Summers conceded that for the purposes of the motion for summary judgment, the court could assume Kearney Towing mounted the tire on a Dandee Construction pickup truck on June 10, 2014; that the tire failed on May 1, 2015, injuring Loveland and Summers; and that Loveland and Summers brought suit against Kearney Towing on April 12, 2019.

Kearney Towing argued at the hearing that the statute of limitations on Loveland and Summers’ complaint is 4 years, whether it is based on the tort statute or the contract statute, and that the statute begins to run on the date of the act or the omission which gives rise to the claim. Ultimately, Kearney Towing argued that the cause of action was based upon an invoice from June 10, 2014; Loveland and Summers did not file their action until April 2019; and thus, it was outside the 4-year statute of limitations that expired in June 2018, so their claim was barred.

Loveland and Summers argued at the hearing that a cause of action accrues and the statute of limitations begins to run when the aggrieved party has a right to institute and maintain a suit. They asserted that no case in Nebraska has ever found that the statute of limitations starts before the injury occurs or before the existence of causation and damages. Thus, they asserted their causes of action accrued and the statute of limitations began when the injury occurred on the date of the accident. They claimed they gained the right to institute a lawsuit on May 1, 2015, and timely filed their action within 4 years of that date.

The district court's original order on Kearney Towing's motion for summary judgment found that Loveland and Summers’ negligence claim was governed by a 4-year statute of limitations under Neb. Rev. Stat. § 25-207 (Reissue 2016) and that the breach of contract claim was governed by Neb. Rev. Stat. § 25-206 (Reissue 2016) upon an oral contract. The court found that the negligence cause of action accrued on the date of the injury, which was May 1, 2015, and that thus, it was not barred by the 4-year statute of limitations under § 25-207. And the court found that "[t]here is at least a question of fact as to whether [Loveland and Summers’] contract claim is barred by the statute of limitations under [§] 25-206."

Kearney Towing filed a motion to reconsider, asserting, as relevant to this appeal, that the court erred in concluding that the statute of limitations for negligence actions, as set forth in § 25-207, begins to run on the date of a plaintiff's injury. Meanwhile, Loveland and Summers expressed their intention to dismiss their breach of contract claim with prejudice. In the court's order on Kearney Towing's motion to reconsider, the court acknowledged Loveland and Summers’ stated intent to dismiss their breach of contract claim. The court then determined that, upon reconsideration, Loveland and Summers’ cause of action for negligence accrued at the time the tire was installed, which was June 10, 2014, even though this date of the act or omission occurred before any injury to Loveland and Summers. The court accordingly found the negligence action was barred by the statute of limitations under § 25-207. The court reversed its original order and sustained Kearney Towing's motion for summary judgment, dismissed the negligence action, and found all other pending motions moot or overruled.

Still pending was a third-party complaint by Kearney Towing and Loveland and Summers’ breach of contract action. On March 8, 2021, Loveland and Summers filed a motion asking the court to dismiss their breach of contract cause of action with prejudice and either (1) reverse its March 2 order granting Kearney Towing's motion for summary judgment and entering judgment against Loveland and Summers on their negligence claim or (2) amend its March 2 order to also dismiss for lack of jurisdiction a third-party complaint by Kearney Towing. Alternatively, Loveland and Summers asked the court, in the event it overruled their motion to reconsider, to dismiss Kearney Towing's third-party complaint in order to "render all claim and controversy resolved and the [c]ourt's [o]rder final."

After a hearing was held, the court dismissed Loveland and Summers’ breach of contract claim with prejudice as requested. The court also agreed that Kearney Towing's third-party claim was a derivative claim and dismissed it with prejudice for lack of jurisdiction. But, the court stated, it "remains convinced that a negligence cause of action accrues as soon as the act or omission occurs" and, while that rule results in [Loveland and Summers’] having fewer than 4 years after the accident to file their action, "a contrary rule would subject [Kearney Towing] to suit more than four years after it had any involvement with the tire in question." Loveland and Summers appeal the dismissal of their negligence claim on summary judgment as barred by the statute of limitations.

ASSIGNMENTS OF ERROR

Loveland and Summers generally assign that the district court erred in sustaining Kearney Towing's motion to reconsider and, thereafter, granting summary judgment in favor of Kearney Towing. More specifically, Loveland and Summers assign that the district court erred in (1) ruling all tort claims accrue when the wrongful act or omission occurs, rather than when the plaintiff has the right to institute and maintain suit, disregarding the requirements of Neb. Rev. Stat. § 25-201 (Reissue 2016) ; (2) ruling negligence claims governed by § 25-207(3) accrue when the wrongful act or omission occurs, rather than when a plaintiff suffers a direct injury to his or her rights resulting in actual damage; (3) ruling Loveland and Summers’ negligence claim accrued, under § 25-207(3), on the date Kearney Towing's acts or omissions occurred, June 10, 2014, rather than...