Farnsworth v. Cox et al
Filing
33
MEMORANDUM AND ORDER granting in part and denying in part the defendants' motion to dismiss. The wrongful death claims of Donna Farnsworth, individually, are hereby dismissed because they are barred by the statute of limitations. The claims of H.L.F., through her conservator, shall not be dismissed and are hereby allowed to proceed. Signed by District Judge Richard D. Rogers on 9/14/2012. (ms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DONNA K. FARNSWORTH,
Individually, Heir-at-Law;
Natural Guardian; Next
Friend; Conservator
Deceased Richard V.
Farnsworth, minor H.L.F.,
Plaintiff,
vs.
Case No. 11-1263-RDR
THE HUB OF SYRACUSE, INC.;
BITUMINOUS CASUALTY CORP.,
Intervenor Plaintiffs,
v.
MICHAEL B. COX; WADE HILL,
d/b/a M&W Trucking,
Defendants.
MEMORANDUM AND ORDER
This
is
jurisdiction.
a
wrongful
death
action
based
upon
diversity
Plaintiffs are Donna K. Farnsworth, individually as
widow of Richard V. Farnsworth; and H.L.F., a minor and daughter of
Richard V. Farnsworth, represented by Donna Farnsworth, as natural
guardian, next friend and conservator.
Plaintiffs are citizens of
Arizona. The defendants are Michael B. Cox and Wade Hill d/b/a M&W
Trucking.
They are citizens of Nebraska.
The court has allowed
The Hub of Syracuse, Inc. and Bituminous Casualty Company to
intervene pursuant to Fed.R.Civ.P. 24(a)(2).
Bituminous Casualty
was the workers compensation liability insurance carrier for The
Hub of Syracuse.
They have paid, and continue to pay, benefits
under the Kansas Workers Compensation Act to plaintiffs Donna
Farnsworth and H.L.F., as surviving heirs of Mr. Farnsworth.
This
matter is presently before the court upon defendants’ motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6).
The defendants contend
that plaintiffs’ claims are barred by the statute of limitations.
This case arises from a collision between a vehicle being
operated by Richard V. Farnsworth and a vehicle being operated by
Michael Cox.
Farnsworth died as a result of the collision.
The
accident occurred on August 31, 2009 in Hamilton County, Kansas.
Donna K. Farnsworth was appointed as conservator for H.L.F. on June
21, 2010.
Plaintiffs filed their complaint on August 30, 2011.
Summonses were issued on November 21, 2011.
Both defendants were
served on December 12, 2011. Plaintiffs filed an amended complaint
on December 28, 2011.
Defendants filed the instant motion on
December 29, 2011.
I.
In ruling on a motion to dismiss under Rule 12(b)(6), the
court assumes as true all well-pleaded factual allegations and
determines whether they plausibly give rise to an entitlement of
relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
To
survive a motion to dismiss, a complaint must contain sufficient
factual matter to state a claim which is plausible—and not merely
conceivable—on its face.
Id. at 679; Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007).
In determining whether a complaint
2
states a plausible claim for relief, the court draws on its
judicial experience and common sense.
Iqbal, 556 U.S. at 679.
While ordinarily the statute of limitations is an affirmative
defense, the issue may be resolved on a Rule 12(b)(6) motion to
dismiss where the application of the limitations period is apparent
on the face of the complaint.
See Jones v. Bock, 549 U.S. 199,
220–21 (2007).
The defendants contend that plaintiffs’ claims are barred by
the statute of limitations.
They argue that the statute of
limitations for a wrongful death action is two years. They further
contend that the statute of limitations expired here because
plaintiffs failed to obtain service within 90 days as required by
Kansas law.
Plaintiff H.L.F. contends that her claims are not
barred by the statute of limitations because she is a minor and
K.S.A.
60-515(a)
extends
the
time
within
prosecute an action for wrongful death.
which
a
minor
may
Plaintiff Farnsworth
contends, in a somewhat convoluted manner, that her claims survive
because the “one-action” rule and K.S.A. 60-1902 save them.
In a diversity case, the law of the forum state provides the
appropriate statute of limitations.
See Zamora v. Prematic Serv.
Corp., 936 F.2d 1121, 1122 (10th Cir. 1991); Dow Chemical Corp. v.
Weevil–Cide Co., Inc., 897 F.2d 481, 483–84 (10th Cir. 1990).
In
Kansas, pursuant to K.S.A. 60–510, an action “can only be commenced
within the period prescribed by the applicable statute after the
3
cause of action” has accrued.
Admire Bank & Trust v. City of
Emporia, 250 Kan. 688, 829 P.2d 578, 586 (1992)(quoting State ex
rel. Grassie v. Masterson, 221 Kan. 540, 561 P.2d 796, 801 (1977)).
An action is commenced in Kansas upon filing the petition and
obtaining service of process.
Davila v. Vanderberg, 4 Kan.App.2d
586, 608 P.2d 1388, 1391 (1980).
K.S.A. 60–203 provides:
(a) A civil action is commenced at the time of: (1)
Filing a petition with the clerk of the court, if service
of process is obtained or the first publication is made
for service of publication within 90 days after the
petition is filed, except that the court may extend that
time an additional 30 days upon a showing of good cause
by the plaintiff; or (2) service of process or first
publication, if service of process or first publication
is not made within the time specified by provision (1).
The parties agree the applicable statute of limitations is the
two-year provision of K.S.A. § 60–513(a)(5), which provides that
“[a]n action for wrongful death” must be “brought within two
years.”
An action for wrongful death accrues to the decedent’s
heirs upon the death of the decedent, which in this case is August
31, 2009.
See Natalini v. Little, 278 Kan. 140, 92 P.3d 567, 570
(2004).
Upon initial review, the court notes that plaintiffs’ claims
appear barred under K.S.A. 60-513(a)(5). Plaintiffs’ complaint was
filed within the two-year statute of limitations of K.S.A. 60513(a)(5), but the complaint was not served within the 90-day
requirement of K.S.A. 60-203.
Under Kansas law, an action is
“commenced” for purposes of the statute of limitations on the date
4
of the filing of the petition, so long as service is effected
within 90 days of the filing.
Witherspoon v. Roadway Express,
Inc., 782 F.Supp. 567, 572–73 (D.Kan. 1992) (citing K.S.A. §
60–203). If service is not effected within that 90–day period, the
action is deemed to have “commenced” upon the date of service.
K.S.A.
60-203.
Thus,
this
action
was
commenced
after
the
expiration of the statute of limitations.
The intervenors have suggested that the statute of limitations
argument made by the defendants cannot be determined on a motion to
dismiss.
They suggest, relying upon K.S.A. 60-517, that the
statute of limitations may have been tolled because the defendants’
whereabouts may have been unknown when the cause of action accrued.
K.S.A. 60-517 sets forth circumstances when the statute of
limitations can be tolled for an out-of-state defendant:
If when a cause of action accrues against a person he or
she be out of the state, or has absconded or concealed
himself or herself, the period limited for the
commencement of the action shall not begin to run until
such person comes into the state, or while he or she is
so absconded or concealed, and if after the cause of
action accrues he or she depart from the state, or
abscond or conceal himself or herself, the time of the
absence or concealment shall not be computed as any part
of the period within which the action must be brought.
This section shall not apply to extend the period of
limitation as to any defendant whose whereabouts are
known and upon whom service of summons can be effected
under the provisions of article 3 of this chapter.
As noted in the last sentence of K.S.A. 60-517, the statute of
limitations is not tolled if the defendant’s whereabouts are known
and the defendant can be lawfully served.
5
See Slayden v. Sixta,
250 Kan. 23, 825 P.2d 119, 122 (1992).
The word “known” in K.S.A.
60-517 means the place where service of process upon the defendant
can be effected that is known or should have been known to the
plaintiff by the exercise of due diligence.
Morris v. Morris, 27
Kan.App.2d 1014, 10 P.3d 771, 774 (2000).
As correctly pointed out by the defendants, neither plaintiffs
nor
the
intervenors
have
raised
any
facts
to
support
this
contention. Specifically, plaintiffs have not raised this issue at
any time. They have never suggested any facts that the whereabouts
of the defendants were not known and that service could not have
been effectuated under Article 3 of Chapter 60.
The intervenors
have also failed to suggest any facts supporting the application of
K.S.A. 60-517 beyond indicating that the defendants were served out
of state.
Thus, the court fails to find that this argument
precludes addressing the statute of limitations issue raised by the
defendants.
II.
A.
Claims of H.L.F.
H.L.F.
contends
that
her
claims
are
timely
due
to
the
application of K.S.A. 60-515(a). That statute describes the effect
of
a
person’s
limitations.
minority
on
the
running
of
the
statute
of
It provides, in relevant part “. . . if any person
entitled to bring an action . . . at the time the cause of action
accrued or at any time during the period the statute of limitations
6
is running, is less than 18 years of age,. . . such person shall be
entitled to bring such action within one year after the person’s
disability is removed . . .”
K.S.A. 60-515(a).
H.L.F. suggests
that the limitations period has not run because this action was
filed before her minority ended.
See Shirley v. Reif, 260 Kan.
514, 920 P.2d 405, 411 (1996) (K.S.A.60–515(a) requires minors to
file claims which accrue during minority within one year after
turning 18); Lewis v. Shuck, 5 Kan.App.2d 649, 623 P.2d 520, 523-24
(1981)
(in
order
for
disability
statute
to
toll
statute
of
limitations, the disability must have existed at the time the cause
of action accrued).
The defendants argue that the tolling provisions of K.S.A. 60515(a) do not apply because H.L.F.’s disability as a minor was
removed when Farnsworth was appointed as her conservator on June
21, 2010.
The defendants contend that Farnsworth had until June
21, 2011, one year after H.L.F.’s disability was removed, or August
31, 2011, the expiration of the statute of limitations under K.S.A.
60-513(a)(5), to commence an action against the defendants for
wrongful death.
The defendants assert that neither occurred
because service was not made upon them within 90 days after the
filing of the complaint.
The defendants point to the language of K.S.A. 60-515(a) to
support their position that H.L.F.’s disability was removed when a
conservator was appointed.
Plaintiffs have contended, inter alia,
7
that the court should certify this issue to the Kansas Supreme
Court for resolution.
The court recognizes that the Kansas Supreme Court has not
spoken directly on this issue.
Nevertheless, the court believes
that the Kansas courts have provided enough guidance to reach a
decision on what we believe the Kansas courts would do.
The court begins by examining the language of the statute.
The court begins by noting that the statute gives an unqualified
extension to the protected parties, including minors.
The court
notes that the statute provides no exception after the appointment
of a guardian or conservator.
The plain language of the statute
suggests that the right it confers on the “person entitled to bring
an action” is not diminished by the appointment of a guardian or
conservator.
The words “the time of such disability” refer to the
person’s disabling condition, not merely the disability to bring
suit.
The statute permits the action to be brought after the
removal of the disability, not after the appointment of a guardian
or conservator.
The statute of limitations runs or is tolled
depending on the status of the plaintiff, irrespective of whether
a legal guardian exists.
legally
recognized
If plaintiff is under some form of
disability
which
tolls
the
statute
of
limitations, the statute of limitations remains tolled despite the
possibility that some representative could bring the action on the
plaintiff’s behalf.
8
The case law in Kansas supports this conclusion, although as
noted previously we recognize that the Kansas courts have not
directly considered this issue.
The court must begin with Domann
v. Pence, 183 Kan. 196, 326 P.2d 260 (1958).
In Domann, three
minors were injured in an automobile accident on July 29, 1954.
They each filed suit by their father as next friend on September 4,
1956.
There was no dispute that the case was filed beyond the
applicable two-year statute of limitations.
326 P.2d at 261.
The
minor plaintiffs, however, argued that they were entitled to bring
their suits anytime during their infancy or within one year after
their disability was removed.
The Supreme Court agreed with the
minor plaintiffs and adopted their argument.
Id. at 262.
The
Court, relying on Missouri Pac. Ry. Co. v. Cooper, 57 Kan. 185, 45
P. 587 (1896), pointed out that an infant could maintain an action
at any time until one year after disability or infancy had been
removed even though an action by a guardian or next friend could
have been brought during that period.
Id.
In Cooper, a minor brought a personal injury action through
his next friend for injuries sustained when his foot was crushed by
a freight train nearly ten years earlier.
The Supreme Court held
that the minor was entitled to the benefit of former Kan. Civ. Code
§ 19, the statutory provision providing that the statute of
limitations will not bar an action while the person entitled to
bring it is a minor or under other legal disability.
9
45 P. at 588.
The Court rejected the defendant’s contention that a cause of
action accrued in favor of the plaintiff, by his next friend, at
the time of the injury, and that, after the lapse of two years, the
action by the next friend became barred.
Id.
Then, in Wilson v. Beeler, 151 Kan. 699, 100 P.2d 645 (1940),
minors sought to quiet title to real property that their guardian
had
sold
under
a
guardian’s
deed.
The
Supreme
Court
never
mentioned the fact that the minors had been represented by a
guardian in reaching its determination that the effect of K.S.A.
60-305,
the
state
tolling
statute
applicable
to
real
estate
actions, was to extend the applicable limitations period so that
the statutory period did not expire earlier than two years after
the youngest plaintiff became of age.
100 P.2d at 649.
A review of these cases suggests that this court’s reading of
K.S.A. 60-515(a) is appropriate.
The Kansas Supreme Court has
never recognized that the appointment of a guardian or conservator,
or
the
possibility
of
the
appointment
of
a
guardianship
or
conservatorship, diminishes the right of the minors to rely upon
the tolling provisions extending the statute of limitations. Other
Kansas federal cases have reached the same conclusion with regard
to similar tolling provisions of Kansas law.
See Copeland v.
Toyota Motor Sales USA, Inc., 1994 WL 324551 at ** 4-5 (D.Kan. July
1, 1994); Villa v. Roberts, 80 F.Supp.2d 1229, 1232 (D.Kan. 2000);
Edmonds v. Union Pac. R.R. Co., 294 F.Supp. 1311, 1313-14 (D.Kan.
10
1969).
In a recent reply, the defendants have found a case that they
believe suggests that H.L.F.’s claims are barred by the statute of
limitations. They rely upon Dockery v. Unified Sch. Dist. No. 231,
382 F.Supp.2d 1234 (D.Kan. 2005).
The court shall thoroughly
examine this case because it does have some similarities to the
instant case.
In Dockery, a mother and father attempted to bring a claim as
guardians for K.C.D., their 10-year-old son.
Judge Lungstrum
dismissed the claim as being time-barred because the guardians
brought the action outside the applicable Kansas two-year statute
of limitations.
382 F.Supp.2d at 1244.
Plaintiffs argued that
K.S.A. 60-515(a) tolled the statute of limitations while their son
was a minor.
Id.
Judge Lungstrum rejected that argument:
Plaintiffs miss the purpose of K.S.A 60-515(a). “The
purpose
of
K.S.A.
60-515...is
to
mitigate
the
difficulties of preparing and maintaining a civil suit
while the plaintiff is under a legal disability.” Biritz
v. Williams, 262 Kan. 769, 774, 942 P.2d 25 (1997)
(citing Lewis v. Shuck, 5 Kan.App.2d 649, 651, 623 P.2d
520, rev. denied, 229 Kan. 670 (1981)). The statute does
not suspend, interrupt, or extend the statute of
limitations, but merely tolls the statute of limitations
under stated circumstances. Id. As the statute of
limitations has run for K.C.D.'s guardians to bring a
claim on his behalf, the court must dismiss Counts IV and
V of the first amended complaint.
Id.
The defendants contend that Dockery controls and that Dockery
can be read in harmony with Domann.
11
This harmony, defendants
suggest, arises from the fact that Domann was brought in the name
of the minor children by their father acting as next friend.
In
their way of thinking, K.S.A. 60-515(a) does not toll the statute
of limitations when the action is brought in the name of the
guardian or next friend.
Rather, the statute tolls the statute of
limitations when the action is brought in the name of the minor.
Here, since this case is brought in the name of Donna Farnsworth as
the guardian of H.L.F., then the statute of limitations has expired
and the action should be dismissed.
The court has carefully considered Dockery and we are not
inclined to follow it for several reasons. The court believes that
Judge Lungstrum has reached a reasonable interpretation of K.S.A.
60-515(a), but it is not the interpretation that the Kansas Supreme
Court has suggested should be adopted. Dockery fails to mention or
even consider Domann.
Domann states in plain terms that the
predecessor of K.S.A. 60-515(a) allows a minor to bring an action
anytime during infancy and up to one year after reaching majority
age.
The efforts of the defendants to somehow distinguish Domann
must fail.
In Kansas, minors cannot bring suit in their own name.
K.S.A. 60-217(c).
Rather, any claim asserted by a minor must be
commenced by a guardian or “next friend” who is an adult.
Id.
Contrary to the argument of the defendants, the court finds no
distinction in how the various cases have indicated who is actually
bringing the claim.
The court is unaware of any legal difference
12
between a claim brought by a minor through a representative and a
claim brought by a representative on behalf of a minor.
In accord with Domann, the court finds that the claims
asserted by Donna Farnsworth, on behalf of H.L.F., are timely and
can proceed.
The defendants’ motion to dismiss H.L.F’s claims
shall be denied.
B.
Claims of Donna Farnsworth
Next, the court must consider the claims of Donna Farnsworth.
As noted earlier in the opinion, her claims appear barred by the
statute of limitations. She essentially admits that the failure to
timely serve the defendants results in her wrongful death claims
being barred by the statute of limitations.
However, she does
contend that she can still assert a claim as an heir in this case
based upon the claim made by H.L.F.
This argument is based on the
operation of K.S.A. 60-1902 and the adoption of the one-action rule
noted in Ellis v. Sill, 190 Kan. 300, 374 P.2d 213 (1962).
argues
that
Ellis
allows
this
court
to
extend
the
She
tolling
provisions of K.S.A. 60-515(a) to her by asserting that if the
minor child timely commences a cause of action, then the parent,
while procedurally barred by the statute of limitations, should
have his or her claim included as a fellow heir.
She further
suggests that the court’s decision in Frost v. Hardin, 1 Kan. App.
2d 464, 466, 571 P.2d 11 (1977), opinion adopted, 224 Kan. 12, 577
P.2d 1172 (1978) provides some support for this argument.
13
The court, at this point, believes that the only issue that
can be decided is whether Donna Farnsworth can pursue the wrongful
death claims she asserted against the defendants in the complaint.
The court is confident at this time that those claims are barred by
the statute of limitations.
The issue raised by Farnsworth
concerning whether she can assert a claim brought as an heir under
K.S.A. 60-1902 is not properly before the court.
such claim in this case yet.
She has made no
If she chooses to do so, then the
court can consider the issues discussed by the parties at that
time.
IT IS THEREFORE ORDERED that defendants’ motion to dismiss
(Doc. # 8) is hereby granted in part and denied in part.
The
wrongful death claims of Donna Farnsworth, individually, are hereby
dismissed because they are barred by the statute of limitations.
The claims of H.L.F., through her conservator, shall not be
dismissed and are hereby allowed to proceed.
IT IS SO ORDERED.
Dated this 14th day of September, 2012 at Topeka, Kansas.
s/Richard D. Rogers
United States District Judge
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