Teel v. American Steel Foundries, No. 81-397C(4).

• Court: United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
• Writing for the Court: Joseph M. Kortenhof, Kortenhof & Ely, St. Louis, Mo., for defendant White Motor Corp
• Citation: 529 F. Supp. 337
• Parties: Kenneth L. TEEL, et al., Plaintiffs, v. AMERICAN STEEL FOUNDRIES, et al., Defendants.
• Decision Date: 28 December 1981
• Docket Number: No. 81-397C(4).

529 F. Supp. 337

Kenneth L. TEEL, et al., Plaintiffs,
v.
AMERICAN STEEL FOUNDRIES, et al., Defendants.

No. 81-397C(4).

United States District Court, E. D. Missouri, E. D.

December 28, 1981.

529 F. Supp. 338

COPYRIGHT MATERIAL OMITTED

529 F. Supp. 339

Jerome W. Seigfreid, Louis J. Leonatti, Seigfreid, Runge, Leonatti & Pohlmeyer, Mexico, for plaintiffs

Joseph M. Kortenhof, Kortenhof & Ely, St. Louis, Mo., for defendant White Motor Corp.

John S. Sandberg, Shepherd, Sandberg & Phoenix, St. Louis, Mo., for defendants.

ORDER

HUNGATE, District Judge.

This matter is before the Court on the separate motions to dismiss plaintiffs' complaint filed by defendants American Steel Foundries and White Motor Corporation.

Having fully considered the Report and Recommendation of the United States Magistrate, along with the entire record, and

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there being no objections to the Magistrate's report

IT IS HEREBY ORDERED that the Report and Recommendation of the United States Magistrate be and the same is sustained, adopted, and incorporated herein.

IT IS HEREBY FURTHER ORDERED that the separate motions to dismiss plaintiffs' complaint filed by defendants American Steel Foundries and White Motor Corporation be and the same are granted.

IT IS HEREBY FURTHER ORDERED that plaintiffs' complaint be and the same is dismissed for failure to state a claim upon which relief can be granted.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE

Nov. 24, 1981.

DAVID D. NOCE, United States Magistrate.

This matter is before the Court on the separate motions to dismiss filed by defendants American Steel Foundries ("American Steel") and White Motor Corporation ("White Motor"). Both motions were referred to the undersigned United States Magistrate for review and a recommended disposition. 28 U.S.C. § 636(b).

Plaintiffs Kenneth and Helen Teel commenced this diversity action on April 9, 1981. Plaintiff Kenneth Teel alleges that on June 30, 1978, during the course of his employment for Wetterau, Incorporated, he was operating a 1972 White Freightliner tractor and trailer near Greenville, Kentucky. The trailer became disengaged from the tractor as a result of a defective fifth wheel, causing plaintiff to lose control of the tractor-trailer. The vehicle crashed, and as a direct result, plaintiff Kenneth Teel sustained injuries. He brings this action for his personal injuries against defendant American Steel, the manufacturer of the allegedly defective fifth wheel, and against White Motor, the seller of the tractor containing the fifth wheel.

Count I of the complaint alleges that defendants breached express and implied warranties of merchantability as to the fifth wheel, and express and implied warranties of fitness for a particular purpose. In Count II of the complaint, plaintiff seeks recovery from defendants on a products liability theory. See 2 Restatement of Torts, Second, § 402A (1965). Plaintiff alleges that American Steel sold the fifth wheel in the course of its business and that it was then in a defective condition, unreasonably dangerous. He also alleges that White Motor sold the White Freightliner tractor in the course of its business and said tractor contained the defective fifth wheel. Plaintiff Kenneth Teel alleges he was using the product in a manner reasonably anticipated and was injured as a direct result of the defect in the fifth wheel.

In Count III of the complaint, plaintiff Helen Teel, wife of Kenneth Teel, makes a claim against both defendants for losses she sustained as a direct result of the injuries to her husband.

Defendant White Motor has moved to dismiss the complaint, alleging that plaintiffs have breached the applicable statute of limitations for this cause of action. In the alternative, defendant White Motor moves for a stay of the proceedings pending the outcome of a bankruptcy petition filed by it on September 4, 1980 in the Northern District of Ohio.

Defendant American Steel has moved to dismiss or, in the alternative, to quash service of process. This motion alleges that plaintiffs' action was commenced after the statute of limitations expired, that plaintiffs have no personal jurisdiction over it because there are insufficient contacts with the state of Missouri, and that plaintiffs are not in contractual privity with this defendant.

At the outset, it is noted that, "a complaint may properly be dismissed on motion for failure to state a claim when the allegations in the complaint affirmatively show that the complaint is barred by the applicable statute of limitations." Suckow Borax Mines Consolidated v. Borax Consolidated, Limited, 185 F.2d 196, 204 (9th Cir.

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1950), cert. denied, 340 U.S. 943, 71 S.Ct. 506, 95 L.Ed. 680 (1951); 5 Wright and Miller, Federal Practice and Procedure (Civil) § 1357, p. 608 (1969). A complaint is not subject to dismissal for failure to state a claim unless it appears beyond doubt that no relief can be granted under any set of facts that can be proven under the allegation. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Fed.R.Civ.Pro. 12(b)(6)

In determining the pertinent statute of limitations to apply in a diversity action a federal court is required to apply the statute of limitations that the state courts in the same jurisdiction would apply. Bergstreser v. Mitchell, 577 F.2d 22, 26 (8th Cir. 1978). The Missouri "borrowing statute," Mo.Rev.Stat. § 516.190, has the effect of making another state's statute of limitations applicable when an accident occurs in the other state but the cause of action is brought in Missouri. Trzecki v. Gruenewald, 532 S.W.2d 209, 211-12 (Mo.banc 1976). Defendants posit that Ky.Rev.Stat. § 413.140(1)(a) is the proper statute of limitations to apply in this case. That section states:

(1) The following actions shall be commenced within one (1) year after the cause of action accrued:

(a) an action for an injury to the person of the plaintiff, or of her husband, his wife, child, ward, apprentice, or servant.

Ky.Rev.Stat.Ann. § 413.140(1)(a) (Supp. 1979). Under this statute, a personal injury cause of action accrues at the time of the accident and the one-year limitations period begins to run at that time. Derossett v. Burgher, 555 S.W.2d 579 (Ky.1977). In computing this one-year time period, the day of the accident is excluded. Id. If this provision applies, plaintiffs' cause of action was foreclosed on June 30, 1979 by the running of the statute.

Plaintiffs insist, however, that the pertinent statute is Ky.Rev.Stat. § 355.2-725, which provides a four-year limitations period:

(1) An action for breach of any contract for sale must be commenced within four years after the cause of action is accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. (Emphasis added.)

Ky.Rev.Stat.Ann. § 355.2-725(1) (Supp. 1979). This section was enacted in 1960, when Kentucky adopted the Uniform Commercial Code ("the UCC"). Section 355.2-725 tracks the wording of § 2-725 of the UCC verbatim. Plaintiffs argue that the enactment of the UCC in Kentucky expresses an intent by the legislature that the Code occupy the field of commercial transactions, and since Count I of their complaint is a breach of warranty claim, § 355.2-725 provides the proper statute of limitations. Plaintiffs' theory is further premised on the fact that § 355.2-715(2)(b) allows recovery for injuries to person or property proximately resulting from any breach of warranty by a seller. Ky.Rev. Stat.Ann. § 355.2-715(2)(b) (Supp.1979). It is also clear that a "seller" under this section may include a manufacturer of defective goods as well as a retail seller. Hoffman v. A. B. Chance Co., 339 F.Supp. 1385 (M.D.Pa.1972) (employee seeks recovery under UCC and 402A theories against manufacturer of defective product purchased by his employer).

Defendants argue that the one-year statute of limitations for personal injury actions, § 413.140(1)(a), applies in the instant case because Kentucky courts traditionally look to the object of the action, not the form, to determine which statute of limitations is applicable. Howard v. Middlesborough Hospital, 242 Ky. 602, 47 S.W.2d 77 (1932); Columbus Mining Co. v. Walker, 271 S.W.2d 276 (Ky.1954). Defendants also argue that the object of the action is plaintiff Kenneth Teel's personal injuries, despite plaintiffs' characterization of the action as one for breach of warranty. The apparent conflict between § 413.140(1)(a) and § 355.2-725 has never been resolved by Kentucky courts, as there have been no cases on the issue since the enactment of the UCC in Kentucky. Other jurisdictions are divided on the issue of which limitation statute

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applies in a breach of warranty action for personal injuries. See Simmons v. American Mutual Liability Insurance Co., 433 F.Supp. 747, 750 (S.D.Ala.), aff'd mem., 560 F.2d 1022 (5th Cir. 1977); White and Summers, Uniform Commercial Code, § 11-9, p. 416-17 (2nd ed. 1980)

In the absence of a clear mandate from the Kentucky state courts it cannot be said beyond doubt that § 413.140(1)(a) should apply to plaintiff's breach of warranty claim rather than § 355.2-725. See Crawford County Trust & Savings Bank v. Crawford County, Iowa, 66 F.2d 971, 973 (8th Cir. 1933), cert. denied, 291 U.S. 664, 54 S.Ct. 439, 78 L.Ed. 1055 (1934) (when substantial doubt exists as to which of two limitations statutes is applicable longer period will be applied). The four-year limitations period of § 355.2-725 should, therefore, be applied to plaintiffs' breach of warranty claim, stated in Count I. There is no substantial doubt, however, that the one-year limitations period of § 413.140(1)(a) should be applied to the products liability claim stated in Count II of the complaint. Therefore, Count II should be dismissed as plaintiffs have exceeded the limitations period.

Concerning Count I, under...