Divine v. Genuine Parts Company

Filing 13

MEMORANDUM OPINION AND ORDER: (1) Dft's 3 Motion to Dismiss is GRANTED. (2) This matter is DISMISSED WITH PREJUDICE and STRICKEN from this Court's active docket. Signed by Judge Karen K. Caldwell on April 15, 2016. (AWD) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
STEVE DIVINE,

CIVIL ACTION NO. 5:15-267-KKC

Plaintiff,
V.

MEMORANDUM OPINION AND
ORDER

GENUINE PARTS COMPANY,
Defendant.
This matter is before the Court on Defendant Genuine Parts Company’s Motion to
Dismiss. (DE 43). For the reasons set forth below the Court will grant Defendant’s motion
to dismiss.
I. BACKGROUND
On September 9, 2015, Defendant removed this negligence action from the Boyle
Circuit Court (the “State Court”). (DE 1.) Plaintiff’s State Court Complaint alleges that
Defendant negligently caused an estimated $112,120.60 in damages to his driveway. (DE 11 at 6.) According to Plaintiff, approximately seven years ago Defendant began delivering
office supplies to his home. (DE 1-1 at 5.) Plaintiff represents that Defendant’s employee
negligently damaged his driveway by making such deliveries using a commercial vehicle
that exceeded the maximum permissible weight for a residential concrete driveway. (DE 1-1
at 6.) The “severe damage to the driveway” was only discovered “in the past year, more or
less.” (DE 1-1 at 5–6.)
Defendant filed the instant motion on September 9, 2015, seeking dismissal based
on Kentucky’s five year statute of limitations. (DE 3 at 4.) In its October 27, 2015 response,
Plaintiff does not dispute the applicable statute of limitations, but instead claims that his
driveway’s damages were not discovered, or discoverable, until less than five years ago. (DE

6 at 1.) In reply, Defendant alleges that the discovery rule cannot be applied to toll the
statute of limitations in this action under state law. (DE 7 at 2–4.) Because this Court will
not unilaterally extend the discovery rule to negligent property damage actions in the
absence of controlling Kentucky law, Defendant’s motion will be granted.
II. ANALYSIS
A. FEDERAL RULE 12(B)(6) DISMISSAL
A court may dismiss a complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) if the plaintiff fails to provide “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court must
construe the complaint in the light most favorable to the plaintiff and accept all factual
allegations as true, but the factual allegations must “raise a right to relief above the
speculative level.” Id. at 555. The complaint must “contain either direct or inferential
allegations respecting all material elements necessary for recovery under a viable legal
theory.” D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014) (internal quotation marks
omitted). Failure to include plausible factual allegations for all material elements necessary
for recovery warrants dismissal. Id.
Plaintiff does not dispute the applicability of KRS § 413.120 to this action. The
statute, in relevant part, provides that:
The following actions shall be commenced within five (5) years
after the cause of action accrued:
....
(4) An action for trespass on real or personal property.
KRS § 413.120. Likewise, Plaintiff does not challenge Defendant’s reference to the
Complaint’s allegation that the deliveries began “approximately 7 years ago,” as the date
the injury accrued. (DE 1-1 at 5.) Rather, Plaintiff asserts that the injury “was not
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discovered until less than 5 years ago as the damage was hidden and only came to the
surface in the recent few years.” (DE 6 at 1.) A statute of limitations defense, while not
normally part of a motion to dismiss for failure to state a claim, “is appropriate where the
allegations of the complaint itself set forth everything necessary to satisfy the affirmative
defense, such as when a complaint plainly reveals that an action is untimely.”
Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 847 (7th Cir. 2008). On its face, the
Plaintiff’s claim falls outside the relevant statute of limitations.
On the other hand, in certain cases, Kentucky courts apply the so-called “discovery
rule” to toll statutes of limitation. When applicable, this rule suspends the accrual date
“until the plaintiff discovers (or in the exercise of reasonable diligence should have
discovered) not only that he has been injured, but also that this injury may have been
caused by the defendant's conduct.” Fluke Corp. v. LeMaster, 306 S.W.3d 55, 60 (Ky. 2010)
(internal quotation marks omitted). Plaintiff’s complaint alleges discovery “in the past year,
more or less” and his response attempts to further justify the discovery rule’s application
here. (DE 1-1 at 5–6.) However, Plaintiff cites to no authority that applies the discovery
rule in a negligent property damage action.
Kentucky does not generally apply the discovery rule for property damage torts.
Rockwell Int'l Corp. v. Wilhite, 143 S.W.3d 604, 616 (Ky. Ct. App. 2003) (“Georgia (like
Kentucky), generally does not provide [a discovery] rule for torts involving property
damage”). Historically, “Kentucky's courts have cautioned against judicial efforts to expand
the discovery rule without legislative authorization.” Asher v. Unarco Material Handling,
Inc., 596 F.3d 313, 322 (6th Cir. 2010) (citations omitted). Thus, in Rockwell the Kentucky
Court of Appeals applied the “federally mandated” discovery rule for environmental torts,
which was created as an exception to state statutes of limitation. See 42 U.S.C. § 9658 (“the
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term ‘federally required commencement date’ means the date the plaintiff knew (or
reasonably should have known) that the personal injury or property damages referred to in
subsection (a)(1) were caused or contributed to by the hazardous substance or pollutant or
contaminant concerned.”). No such mandate exists here. Consequently, consistent with its
role as a federal court sitting in diversity, this Court will adhere to the dim view Kentucky
has adopted for extra-legislative expansion of the discovery rule.
III. CONCLUSION
The face of the Plaintiff’s complaint establishes the applicability of the statute of
limitations to bar the claims asserted therein. Because the discovery rule cannot be relied
on to toll that period, the Complaint fails to state a facially plausible claim for relief and it
must be dismissed.
Accordingly, IT IS ORDERED as follows:
1. Defendant’s Motion to Dismiss (DE 3) is GRANTED;
2. This matter is DISMISSED WITH PREJUDICE and STRICKEN from this
Court’s active docket.
Dated April 15, 2016.

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