Gloyna et al v. Toyota Motor Manufacturing North America, Inc. et al

Filing 51

MEMORANDUM OPINION AND ORDER: Oral argument held on 1/24/2014 before Judge William O. Bertelsman regarding defendants' motion for summary judgment. Defendants' motion for summary judgment 42 is GRANTED. (Court Reporter Joan Averdick.)Signed by Judge William O. Bertelsman on 1/29/2014. (TJZ)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 2011-11 (WOB-JGW)
DENNIS GLOYNA, Co-Executor
Of the Estate of Ray Ann
Gloyna, ET AL.
VS.

PLAINTIFFS

MEMORANDUM OPINION AND ORDER

TOYOTA MOTOR MANUFACTURING
NORTH AMERICA, INC., ET AL

DEFENDANTS

This is an action under 28 U.S.C. § 1332, diversity of
citizenship.

The jurisdictional requirements of complete diversity of

citizenship and the amount in controversy have been met.
This matter is before the Court on the Defendants’ motion for
summary judgment as to all claims based on either Kentucky’s or
Texas’s statute of limitations.

(Doc. 42).

The Court heard oral argument on January 24, 2014.
Farnolo represented the Plaintiffs.
represented Defendants.

Nicholas

Linsey West and Randy Bibb

Official court reporter Joan Averdick

recorded the proceedings.
FACTS
On April 9, 2007, Ray Ann Gloyna was driving a 2001 Toyota Avalon
in Abilene, TX, when she failed to stop at a stop sign at the
intersection of FM 1750 and TX 36, struck the trailer portion of a
tractor-trailer, and was killed.

(Doc. 1 ¶¶ 8, 9).

Dennis Gloyna,

individually and as Co-Executor of Ray Ann Gloyna’s estate, as well as
Myrick Gloyna, Co-Executor of Ray Ann Gloyna’s estate (collectively

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the “Plaintiffs”), have filed several state law claims against Toyota
Motor Manufacturing North America, Inc., Toyota Motor Manufacturing,
Kentucky, Inc., and Toyota Motor Sales, U.S.A., Inc. (collectively the
“Defendants”).

The Defendants manufactured and sold to Ray Ann Gloyna

the 2001 Avalon (the “Avalon”) she was driving when the accident
causing her death occurred.

Plaintiffs allege “the Avalon suddenly,

unexpectedly and without warning accelerated, causing it to become
uncontrollable and sped [sic] through a stop sign.”

(Doc. 1 ¶ 9).

Plaintiffs’ claims rest on the theory that the accident occurred
due to a defect in Defendants’ 2001 model Avalon that caused a sudden
unintended acceleration (“SUA”) of the vehicle.
Plaintiffs point to facts that they allege show Defendants’
fraudulent concealment.

For example, Plaintiffs argue Defendants’

failure to include the 2001 Avalon in December 2009 and January 2010
recalls, customer complaints about 2001 Avalon’s SUA problems (all
submitted after the January 2010 recall), statements from Toyota
officials occurring around the 2010 recall including one stating “WE
HAVE A tendency for MECHANICAL failure in accelerator pedals of a
certain manufacturer on certain models . . . We need to come clean,”
and statements from whistleblowers show Defendants’ fraudulent
concealment.
ANALYSIS
A. Kentucky’s Statutes of Limitation Apply To All Claims
Statutes of limitation are generally thought of as procedural law
and, as such, the forum applies its state law.

Gil Ruehl Mech., Inc.

v. Hartford Fire Ins. Co., 164 S.W.3d 512, 514 (Ky. Ct. App. 2004)

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(stating most statutes of limitations are procedural); CSX Transp.,
Inc. v. Moody, 313 S.W.3d 72, 79 (Ky. 2010) (“The substantive law that
governs a FELA action is federal, whether brought in state or federal
court, but the law of the forum governs procedural matters.”).

Thus,

this Court looks to Kentucky law to determine the proper statutes of
limitation.1
Plaintiffs’ negligence, strict liability, wrongful death, and
failure to warn claims have a one year statute of limitations under
KRS § 413.140(a)(1); Plaintiff’s loss of consortium claim has a oneyear statute of limitations under KRS § 411.140(1)(a); Plaintiff’s
claim construed as a breach of contract for sale has a four-year
statute of limitations under KRS § 355.2-725; and fraud has a ten-year
statute of repose under KRS 413.130(3).
Plaintiffs’ negligence, strict liability, failure to warn, and
wrongful death claims all began to run upon appointment of an executor
of Ray Ann Gloyna’s estate.

KRS § 413.180(1).

Dennis Gloyna and

Myrick Gloyna were appointed co-executors on June 14, 2007.

The

statute of limitations on these claims thus ran on June 14, 2008.
Plaintiff Dennis Gloyna’s loss of consortium claim has a one-year
statute of limitations.

KRS § 411.140(1).

His loss of consortium

claim arose on April 9, 2007 upon his wife’s death and the statute of
limitations ran on April 9, 2008.

1
Kentucky has a borrowing statute but it is not applicable here
because the causes of action did not accrue in Texas or Texas’s
statutes of limitation are not shorter than Kentucky’s statues of
limitations. KRS § 413.320.
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Lastly, Plaintiffs’ fraud claim was barred by the statute of
repose in December 2010.

KRS § 413.130(3).

Kentucky law requires a

fraud claim to be brought within ten years after the making of the
contract or perpetration of the fraud, both of which occurred at the
time of sale in December 2000.

Thus, the statute of repose bars

Plaintiffs’ fraud claim.
B. Plaintiffs’ Breach of Warranty Claim Fails Because There Was
No Valid Warranty at the Time of the Accident.
Plaintiff’s breach of warranty claim fails because any express or
implied warranty expired before the accident.

Kentucky (as well as

Texas) allows a seller to modify or exclude implied warranties of
merchantability.

KRS § 355.2-316.

However, the limitation must be conspicuous.
here was conspicuous.

Id.

The disclaimer

It was set apart on its own page, titled

“Limitations” in large bold font.

(Doc. 42-20 p. 9).

Further, the

direct limitation of the implied warranty of merchantability was the
only other bolded font, stating: “Any implied warranty of
merchantability or fitness for a particular purpose is limited to the
duration of these written warranties.”

Id.

This is a conspicuous

limitation, such that a reasonable person ought to have noticed it.
The express warranty limited its effectiveness to either the
basic warranty of 36 months or 36,000 miles or the powertrain warranty
of 60 months or 60,000 miles.

Id. at 10.

accident, both warranties were expired.

At the time of the

Because the implied warranty

was limited to the terms of the express warranty, it had expired at
the time of the accident.

Without a valid warranty, Plaintiffs cannot

maintain a breach of warranty claim.
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C. Kentucky’s Fraudulent Concealment Law Applies and Fails to
Toll Statutes of Limitation Because Plaintiffs Failed to Use
Reasonable Diligence
Texas’s and Kentucky’s fraudulent concealment law are not in
conflict.

Both states’ fraudulent concealment exceptions toll the

respective statutes of limitation. Burke v. Blair, 349 S.W.2d 836, 838
(Ky. 1961); See Hazel v. Gen. Motors Corp., 863 F. Supp. 435, 439
(W.D. Ky. 1994), aff'd in part and remanded, 83 F.3d 422 (6th Cir.
1996); Vial v. Gas Solutions, Ltd., 187 S.W.3d 220, 229 (Tex. App.
2006).

Further, both require the plaintiff to have conducted a

reasonably diligent investigation.

Hazel, 863 F. Supp. at 439 (citing

Burke, 349 S.W.2d at 838); Vial, 187 S.W.3d at 229.

Further, both

require some deception by the defendant that conceals the plaintiff’s
cause of action.

Burke, 349 S.W.2d at 838; Vial, 187 S.W.3d at 229.

Thus, it does not matter which state law the Court applies,
because both require the defendant to have taken affirmative steps
against the plaintiff to conceal a cause of action and both require
the plaintiff to have exercised reasonable diligence to discover their
injury.

The lack of conflict between the states’ law favors usage of

forum law.

See Asher v. Unarco Material Handling, Inc., 737 F. Supp.

2d 662, 667-68 (E.D. Ky. 2010) (“If there were no conflict, Kentucky
law would apply.”).2
Plaintiffs failed to use reasonable care and diligence in their
investigation to discover their causes of action as required by
Kentucky’s fraudulent concealment doctrine.

Hazel, 863 F. Supp. at

Plaintiffs only argue Kentucky’s fraudulent concealment law as being
applicable and never discuss Texas’s law.

2

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439.

Plaintiffs admit the only investigation conducted was into

decedent’s cell phone records and, when that failed to provide
answers, the Plaintiffs conducted no further investigation.

The

Plaintiffs failed to have the crash vehicle inspected until after
February 2010, when Plaintiffs contacted an attorney.

Even currently,

Plaintiffs argue this motion for summary judgment is premature because
discovery is ongoing and their expert needs more time to inspect the
subject vehicle.

(Doc. 47 pp. 13-14).

Plaintiffs’ investigation into the accident was so deficient they
both admitted they did not even know a major accident investigation
report was produced by the law enforcement officers who investigated
the accident.

(Doc. 42-10).

Further, Plaintiffs admitted they

conducted no investigation between the night of the accident and
February 2010.

(Doc. 42-8 p. 26-27; Doc. 42-10 p. 28).

Plaintiff

Dennis Gloyna’s investigation into the cell phone records fails to
meet the fraudulent concealment standard of reasonable care and
diligence in Plaintiffs’ investigation.

Thus, Kentucky’s and Texas’s

fraudulent concealment doctrine would not apply and the statutes of
limitation bar the claims.3
C. The Discovery Rule Fails to Toll the Statute of Limitations
Plaintiffs argue that Texas’s and Kentucky’s discovery rule
prevents the statutes of limitation from barring their claims.

Further, there has been no showing that Defendants prevented inquiry
into, eluded investigation into, or misled Plaintiffs in their
investigation of the death of Ray Ann Gloyna. There has also been no
showing of Plaintiffs’ reliance on any deception by the Defendants.
Thus, Kentucky’s and Texas’s fraudulent concealment doctrine would
again fail to toll the statutes of limitation.

3

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However, the discovery rule does not apply in either state to a
wrongful death claim.

See McCollum v. Sisters of Charity of Nazareth

Health Corp., 799 S.W.2d 15, 19 (Ky. 1990) (“Even in cases where the
discovery rule has been applied, we have held that the cause of action
accrues when the fact of injury is known.

In these five cases, death

is the injury that put appellants on notice to investigate.”)
(citations omitted); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348,
349 (Tex. 1990) (“[T]he discovery rule does not apply to the wrongful
death statute of limitations . . . .”).
Even if Kentucky’s or Texas’s discovery rule applied, they also
require the exercise of reasonable diligence in investigating the
injury.

Fluke Corp. v. LeMaster, 306 S.W.3d 55, 60 (Ky. 2010); Childs

v. Haussecker, 974 S.W.2d 31, 37 (Tex. 1998).

Therefore, the

fraudulent concealment analysis above applies equally here, which acts
to bar the application of the discovery rule.
E. Application of Fraudulent Concealment and Discovery Rule to
Plaintiffs’ Claims
Fraudulent concealment and the discovery rule do not apply to
Plaintiffs’ negligence, strict liability, failure to warn, or
wrongful death claims.
tolled.

Thus, the statute of limitations was not

Kentucky law provides that the limitations period begins when

the personal representative is appointed and may bring the cause of
action.

KRS § 413.180(1).

June 14, 2007.
of one year.

Plaintiffs were appointed co-executors on

(Doc. 42-19).
KRS § 413.140.

These claims have a limitations period
Thus, the claims were time barred after

June 14, 2008.

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Plaintiffs’ fraud claim fails because the statute of repose bars
the claim, as discussed above.

The car was purchased in December 2000

and the claim was brought in January 2011, more than ten years later.4
G. Summary Judgment is Appropriate And Should Be Granted, Even
Though Discovery Is Not Complete
Plaintiffs argue that ample time to complete discovery has not
been granted.

However, Plaintiffs are required to show by affidavit

or declaration that they cannot present facts essential to justify
their opposition.

Fed. R. Civ. P. 56(d);

Murphy v. Grenier, 406 F.

App'x 972, 976 (6th Cir. 2011) (“Before the district court decides a
summary judgment motion, the non-movant must file an affidavit
pursuant to Fed. R. Civ. P. 56(f) that details the discovery needed,
or file a motion for additional discovery.

If he does neither, this

court will not normally address whether there was adequate time for
discovery.”) (quotation marks omitted).

As such, the Court will not

grant Plaintiffs’ request.5

The Court construes Plaintiffs’ fraud and breach of warranty claims
as deriving from conduct other than that causing the personal injury
and thus reaches its decision on the merits. However, should those
claims be attempting to circumvent the personal injury statute of
limitations, such is not permitted. See Toche v. Am. Watercraft, 176
S.W.3d 694, 698 (Ky. Ct. App. 2005).
5
The Court also notes the contradictory position Plaintiffs have
taken. Plaintiffs agreed to stay discovery until this Court ruled on
Defendants’ motion for summary judgment, (Doc. 46), while they now
argue that summary judgment is premature because they have not had
ample time to complete discovery. (Doc. 47 pp. 13-14).
4

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Therefore, having reviewed this matter, and the Court being
otherwise sufficiently advised,
IT IS ORDERED that the Defendants’ motion for summary judgment
(Doc. 42) be, and is hereby, GRANTED.

This 29th day of January, 2014.

TIC: 30 min.

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