Uhock v. Sleitweiler

• Decision Date: 08 July 1988
• Docket Number: Nos. 59731,60875,s. 59731
• Parties: Stanley UHOCK and Thelma Uhock, Appellants, v. Phil SLEITWEILER d/b/a Active Pest Control, Defendant/Third-Party Plaintiff, v. Clyde SHERVE d/b/a Sherve Pest Control, Third-Party Defendant/Appellee, v. NATIONAL INDEMNITY COMPANY, Garnishee/Appellee.
• Court: Kansas Court of Appeals

Page 359

778 P.2d 359

13 Kan.App.2d 621

Stanley UHOCK and Thelma Uhock, Appellants, v. Phil SLEITWEILER d/b/a Active Pest Control, Defendant/Third-Party Plaintiff, v. Clyde SHERVE d/b/a Sherve Pest Control, Third-Party Defendant/Appellee, v. NATIONAL INDEMNITY COMPANY, Garnishee/Appellee.

Nos. 59731, 60875.

Court of Appeals of Kansas.

July 8, 1988.

Syllabus by the Court

1. A notice of appeal filed after a judgment is announced but before the judgment is actually entered is premature. A premature notice of appeal becomes effective when the judgment is actually entered. Rule 2.03 (1987 Kan.Ct.R.Annot. 7).

2. When an act results in injury not immediately apparent to the injured party or when the injury is delayed for a period of time, the statute of limitations does not run from the date of the wrongful act, but begins to run when the injury is substantial or reasonably ascertainable. When the evidence is disputed as to when substantial injury results or when injury becomes reasonably ascertainable, the issue must be determined by the trier of fact.

3. A timely motion to alter or amend judgment tolls the time for filing a notice of appeal. K.S.A. 60-259(f); K.S.A. 60-2103.

4. When a policy of insurance is issued to an insured in compliance with the requirements of a statute, the pertinent provisions of the statute must be read into the policy.

5. The Kansas Pesticide Law requires insurance coverage for damage caused by pesticide use. It does not require insurance coverage for damage caused by pests. K.S.A. 2-2448.

6. An exterminator's general liability policy provides coverage only if the insured work or product actively malfunctions, causing injury to an individual or damage to another's property. It is not a performance bond or a guarantee of contract performance. Following Owings v. Gifford, 237 Kan. 89, 697 P.2d 865 (1985).

William Scott Morris and Mark R. Plettner, of Morris & Plettner, Chartered, and Blake A. Post, Topeka, for appellants.

Paul D. Post, of Paul D. Post, P.A., Topeka, for third-party defendant/appellee.

Rex Henecke and Casey R. Law, of Turner and Boisseau, Chartered, Great Bend, for garnishee/appellee.

Before DAVIS, P.J., JOHN W. BROOKENS, District Judge, Retired, Assigned, and M. KAY ROYSE, District Judge, Assigned.

M. KAY ROYSE, District Judge, Assigned:

This is a consolidation of two appeals by plaintiffs from orders of the trial court dismissing third-party defendant Sherve and dismissing the garnishment filed against National Indemnity Company.

A threshold question is whether plaintiffs' appeal from the dismissal of third-party defendant Sherve was timely. The trial court directed verdict for Sherve on May 7, 1986. The next day, the trial court entered judgment by judgment form, but that form only referred to the jury verdict against defendant Sleitweiler. The judgment form made no mention of the directed verdict in favor of Sherve. Plaintiffs filed their appeal on July 1, 1986. On September 12, 1986, a journal entry was filed in the district court, which did journalize the directed verdict in Sherve's favor.

Plaintiffs' appeal, then, was filed after the court's decision but before judgment as to Sherve was entered by journal entry. Such a notice of appeal is considered premature, and becomes effective when the journal entry is filed. Rule 2.03 (1987 Kan.Ct.R.Annot. 7). Plaintiffs' appeal was timely.

Plaintiffs contend that the trial court erred in directing a verdict for third-party defendant Sherve based on the statute of limitations. Resolution of this question requires a review of the procedural history of this case. Plaintiffs filed their action against Sleitweiler in March 1985, alleging he was liable to them for termite damage to their home. Defendant Sleitweiler subsequently filed a third-party petition against Sherve. Sleitweiler alleged that Sherve should be required to indemnify Sleitweiler for any damages recovered by plaintiff against defendant from losses incurred prior to December 29, 1977.

Plaintiffs never formally amended their petition to assert claims against Sherve, nor did they invoke their right to assert such claims pursuant to K.S.A. 60-214(a). At the pretrial conference on February 3, 1986, counsel for plaintiffs simply stated that plaintiffs claimed Sherve had been negligent in performing the initial treatment for termites.

While plaintiffs have cited no authority for the procedure used in this case, and we certainly express no approval of the informal manner in which plaintiffs attempted to assert a claim against Sherve, we will assume that such a claim was stated on February 3, 1986, at the pretrial conference.

The applicable statute of limitations in this case is two years. K.S.A.1987 Supp. 60-513(a). The statute further provides that:

"... the causes of action listed in subsection (a) 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 an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action."

When an act results in injury not immediately apparent to the injured party or when the injury is delayed for a period of time, the statute of limitations does not run from the date of the wrongful act, but begins to run when the injury is substantial or reasonably ascertainable. Olson v. State Highway Commission, 235 Kan. 20, 24, 679 P.2d 167 (1984). When the evidence is disputed as to when substantial injury results or when injury becomes reasonably ascertainable, the issue must be determined by the trier of fact. Kristek v. Catron, 7 Kan.App.2d 495, 496, 644 P.2d 480, rev. denied 231 Kan. 800 (1982).

Plaintiffs contend that conflicting evidence existed as to when they discovered the termite damage. The conflicting evidence came from the plaintiffs. Thelma Uhock testified she "was pretty sure in 83" that there was termite damage. Later, she testified that plaintiffs discovered the termite damage in 1982, and that Sleitweiler had admitted in 1982 that there was termite damage. According to Thelma, by 1982, the floor was "rotted out" and "eaten up." She testified that, in 1982, Sleitweiler promised in writing to do a partial termite retreatment on the home.

Stanley Uhock testified that they first discovered the damage in 1983, but he later indicated he was unsure about the exact dates regarding discovery of the termites. The record also reflects that in November 1983, Sleitweiler promised to replace the entire kitchen floor which had been damaged by termites.

Whether the damage was discovered in 1982 or 1983, the plaintiffs' claim was asserted against Sherve more than two years later--on February 3, 1986.

Plaintiffs seek to avoid this conclusion by arguing that they first discovered the cause of the damage to their home in 1984. They point to the report they received from Alex Hawkins in March 1984, concluding that the chlordane level in the soil was insufficient to protect against termites and that portions of the home had been improperly treated. Plaintiffs' argument is not persuasive. In Friends University v. W.R. Grace & Co., 227 Kan. 559, 608 P.2d 936 (1980), the Supreme Court rejected a claim that the statute of limitations is tolled until the precise cause of injury is ascertained. The Friends University case concerned a new roof which began leaking in 1970 or 1971. Friends complained to the roofing contractor and the manufacturers. In 1975, Friends obtained an expert's report, which pinpointed the cause of the leaks. Friends filed suit in 1977. The trial court entered summary judgment in favor of the manufacturers, concluding that Friends' claims were barred by the statute of limitations.

The Supreme Court affirmed, holding the statute of limitations began to run when Friends knew of the serious leak, not in 1975.

"From 1970 forward, Friends was complaining about the roof and demanding that the roof problems be remedied. Friends frequently urged the defendants and the roofing company to stop arguing among themselves about whose fault it was and repair the roof. The fact Friends had not determined the exact scientific cause of the leaking did not toll the running of the statute. Fully cognizant that a severe problem existed, Friends elected to seek nonjudicial resolution of the controversy. Simply stated, Friends lost its right to a judicial determination of the dispute by its own delay and inactivity." 227 Kan. at 563, 608 P.2d 936.

The trial court did not err in concluding that plaintiffs' claim against third-party defendant Sherve was barred by the statute of limitations. Because the trial court properly directed verdict for the third-party defendant, the other issues raised by plaintiffs in 86-59731-A are moot.

One other matter remains to be determined in this appeal. Sherve seeks an award of attorney fees under Rule 7.07(b) (1987 Kan.Ct.R.Annot. 35). We do not find that the appeal in this case was frivolous, and, therefore, the request for an allowance of fees is denied.

Plaintiffs' second appeal challenges the trial court's dismissal of the garnishment filed against National Indemnity Company. During discovery in the principal action, plaintiffs learned that defendant Sleitweiler was insured by National Indemnity Company. After plaintiffs obtained a verdict against Sleitweiler, they issued a garnishment against National Indemnity. National Indemnity filed a motion to dismiss the garnishment, which was sustained by the trial court. The trial court's order of dismissal was filed on December 5, 1986.

Garnishee National Indemnity Company urges that this appeal should be dismissed because it was not timely filed. The trial court's order of dismissal was mailed to pl...