Smith v. General Motors LLC

Filing 22

Memorandum Opinion and Order granting 4 MOTION to Dismiss , denying as moot 13 MOTION to Amend/Correct Complaint, as set out herein. A separate judgment will be entered. Signed by District Judge Tom S. Lee on 10/13/17 (LWE)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
ASHLEY SMITH

PLAINTIFF

VS.

CIVIL ACTION NO. 3:17CV471TSL-RHW

GENERAL MOTORS, LLC. AND
JOHN DOES 1-10

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This cause is before the court on the motion of defendant
General Motors, LLC (GM) to dismiss.

Plaintiff Ashley Smith has

responded in opposition to the motion, and in addition, has moved
to amend to “delineate with specificity” the basis for her claims.
The court, having considered the memoranda of authorities
submitted by the parties, concludes the motion to dismiss should
be granted for the reason that plaintiff’s claims are barred by
the statute of limitations.

It follows that plaintiff’s motion to

amend should be denied as moot.
Plaintiff Ashley Smith brought this action against GM seeking
to recover damages for injuries she suffered in a January 31, 2014
automobile accident.

In her complaint, Smith alleges that on that

date, she was involved in a collision while driving her 2011
Chevrolet Traverse, which was designed, manufactured and sold by
GM.

She avers that due to a defect in the vehicle’s airbag

system, the airbag failed to deploy, as a result of which she was

caused to suffer excruciating, painful, and permanent injuries.1
In her original complaint,2 Smith undertook to assert product
liability claims under the Mississippi Products Liability Act
(MPLA), Miss. Code Ann. § 11-1-63 et seq., and claims for common
law negligence, fraudulent concealment, breach of implied
warranty, and violation of the Magnuson-Moss Warranty Act, 15
U.S.C. § 2301, et seq.

In response to a motion for partial

summary judgment by GM, plaintiff confessed all but her claims
under the MPLA and for fraudulent concealment.

An order of

dismissal of the confessed claims was entered on August 2, 2017.
GM has moved for dismissal of plaintiff’s MPLA claims, contending
they are time-barred and/or fail to state a claim upon which
relief can be granted.

It has moved for dismissal of her claim

for fraudulent concealment contending she failed to plead fraud
with specificity, as required by both Mississippi and Federal Rule
of Civil Procedure 9(b).
In her complaint, plaintiff has undertaken to allege a claim
for product defect based on a theory of design defect and failure

1

Though her complaint is more specific, in broad terms,
plaintiff alleges that corrosion wear in the airbag wiring harness
connectors caused an increase in resistance, which resulted in the
airbags failing to deploy during the collision.
2

Plaintiff’s original complaint was filed in state court
and removed to this court by GM on the basis of diversity
jurisdiction.
2

to warn.3

She has separately asserted a cause of action for

fraudulent concealment in which she alleges she suffered personal
injuries as a result of GM’s having concealed from consumers and
government regulators that the airbag systems in certain of its
vehicles, including hers, were defective.4

The MPLA governs “any

action for damages caused by a product, including but not limited
to, any action based on a theory of strict liability in tort,
negligence or breach of implied warranty....”
§ 11–1–63.

Miss. Code Ann.

See also Elliott v. El Paso Corp., No. 2013–IA–01338–

SCT, 2015 WL 5157579 (Miss. Sept. 3, 2015) (citing Miss. Code Ann.
§ 11–1–63).

This includes claims for fraudulent concealment based

on a theory that the defendant concealed product defects in
violation of its duty to warn.

See Arnoult v. CL Med. SARL, No.

1:14CV271KS-MTP, 2015 WL 5554301, at *3 (S.D. Miss. Sept. 21,
2015) (claim for fraudulent concealment based on allegation that
defendant breached its duty to warn consumers and physicians of
product's defective nature was for “damages caused by a product”

3

As defendant correctly argues in its motion to dismiss,
plaintiff’s original complaint is unclear as to the precise basis
for her MPLA claim. Her proposed amended complaint is somewhat
more illuminating.
4

Plaintiff has asserted fraudulent concealment both as a
cause of action – denominated as count two of her complaint – and
as a means of tolling the statute of limitations.
3

and thus governed by MPLA).

MPLA claims are subject to the

three-year statute of limitations in Mississippi Code Annotated
§ 11-1-49.

Turnage v. McConnell Techs., 671 F. App'x 307, 308

(5th Cir. 2016).

The statute states as follows:

(1) All actions for which no other period of limitation
is prescribed shall be commenced within three (3) years
next after the cause of such action accrued, and not
after.
(2) In actions for which no other period of limitation
is prescribed and which involve latent injury or
disease, the cause of action does not accrue until the
plaintiff has discovered, or by reasonable diligence
should have discovered, the injury.
Miss. Code Ann. § 15–1–49.
GM contends in its motion that the statute of limitations on
plaintiff’s MPLA claims began to run on January 31, 2014, the date
of her automobile accident, and that her complaint in this cause,
filed more than three years after that date, was untimely.

In

response, plaintiff argues that GM fraudulently concealed her
cause of action, and that, in accordance with Mississippi Code
Annotated § 15-1-67, its fraudulent concealment tolled the statute
of limitations until March 17, 2014, the date on which GM issued a
recall on certain vehicles, including her 2011 Chevy Traverse, on
account of the defect in the vehicle’s airbag system.

Plaintiff

submits that her complaint, filed March 10, 2017, is thus timely.5

5

Plaintiff alleged in her complaint that “[a]ll
applicable statutes of limitation have been tolled by operation of
4

Section 15-1-67 provides for tolling of the statute of
limitations in limited circumstances, as follows:
If a person liable to any personal action shall
fraudulently conceal the cause of action from the
knowledge of the person entitled thereto, the cause of
action shall be deemed to have first accrued at, and not
before, the time at which such fraud shall be, or with
reasonable diligence might have been, first known or
discovered.
Miss. Code Ann. § 15-1-67.

See Robinson v. Cobb, 763 So. 2d 883,

887 (Miss. 2000) (holding that “[f]raudulent concealment of a
cause of action tolls its statute of limitations”) (citations
omitted).

The Mississippi Supreme Court has held a plaintiff

the discovery rule”; and she stated that she did not discover her
cause of action until March 17, 2014, when GM issued the recall.
In contrast to the doctrine of fraudulent concealment, the
discovery rule of Mississippi Code Annotated § 15-1-49(2) does not
toll the statute of limitations but rather establishes the date on
which a cause of action involving latent injury or disease
accrues. However, as GM pointed out in its motion, the discovery
rule to which plaintiff refers applies only when a claim involves
a “latent injury or disease,” Miss. Code Ann. § 15–1–49(2). See
Peavey Elec. Corp. v. Baan U.S.A., Inc., 10 So. 3d 945, 951 (Miss.
Ct. App. 2009) (stating that “[w]ithout a latent injury, the
discovery rule cannot apply.”). Plaintiff does not dispute, nor
does she have any arguable basis for disputing GM’s contention
that her claim does not involve any latent injury. Accordingly,
she does not dispute that her cause of action accrued on the date
of her accident. See Angle v. Koppers, Inc., 42 So. 3d 1, 5
(Miss. 2010) (cause of action accrues “upon discovery of the
injury, not discovery of the injury and its cause”); Mosqueda v.
Smith & Wesson Corp., No. 1:10CV235 LG-JMR, 2010 WL 4623946, at *1
(S.D. Miss. Nov. 4, 2010) (cause of action against gun
manufacturer accrued when the gunshot incident occurred, not when
the plaintiff subsequently discovered recall notice). Instead,
her argument in response to GM’s motion centers on her charge that
the statute of limitations was tolled by GM’s fraudulent
concealment of her cause of action.
5

seeking to avail herself of the doctrine of fraudulent concealment
to toll the running of the limitations period has “a two-fold
obligation to demonstrate that (1) some affirmative act or conduct
was done and prevented discovery of a claim,” which act was
designed to prevent the discovery of the claim, and “(2) due
diligence was performed on [her] part to discover it.”

Stephens

v. Equitable Life Assur. Soc'y of U.S., 850 So. 2d 78, 83 (Miss.
2003).
Here, plaintiff alleges that GM “knew of the dangerous airbag
defect long before it took any action to rectify the defect,” and
that GM engaged in fraudulent concealment “by hiding the defects
in the Plaintiff’s vehicle” and by “conceal[ing] [from both
consumers and regulators] the fact that problems existed with its
airbags.”

She further alleges that she did not discover, and

through the exercise of reasonable diligence, could not have
discovered her cause of action until defendant finally issued a
safety recall on the subject vehicle on March 17, 2017.

In its

motion, GM argues that plaintiff’s complaint fails to adequately
allege the requisites for tolling by fraudulent concealment.
According to GM, she has failed to identify any affirmative act of
concealment that would support tolling.

In this vein, it

acknowledges that an omission or concealment may be considered an
affirmative act for purposes of the fraudulent concealment

6

doctrine “where there exists an affirmative duty of disclosure.”
Hare v. City Finance Co., Civ. Act. No. 4:01CV478LN, 2003 WL
21513125, at *2 (S.D. Miss. June 6, 2003).

It maintains, however,

that during what was the “arguably relevant time period,” i.e.,
from the date of the accident, January 31, 2017, to the date of
the recall, March 17, 2017, it had no duty of disclosure since,
under Mississippi law, there is no post-sale duty to warn.

GM

asserts, moreover, that plaintiff’s allegations do not suggest any
diligence on her part to discover her cause of action.
In the court’s opinion, contrary to GM’s urging, it is not
obvious that plaintiff has failed to adequately plead an
affirmative act of concealment as required for application of the
fraudulent concealment doctrine.6

The court need not consider or

6

GM’s argument assumes that for purposes of the
fraudulent concealment tolling doctrine, the affirmative act of
concealment must post-date accrual of the cause of action. That
is not necessarily the case. In Full House Resorts, Inc. v. Boggs
& Poole Contracting Grp., Inc., 674 F. App'x 404 (5th Cir. 2017),
as revised (Jan. 10, 2017), the Fifth Circuit held that under
Mississippi law, “any temporal requirement” as to the affirmative
act required for fraudulent concealment to toll the limitations
period “is fact-specific.” Id. at 406. The court rejected the
notion that there must be a subsequent affirmative act of
concealment and held that while the affirmative act must always be
distinct from the wrongful act on which the claim is based, the
affirmative act in some circumstances – depending on the nature of
the claim – may precede the wrongful act on which the claim is
based. Id. In addition, while courts do hold that Mississippi
has no post-sale duty to warn, what this means is that there is no
duty to warn of defects of which the manufacturer is not aware at
the time of sale. See Austin v. Will-Burt Co., 361 F.3d 862, 870
(5th Cir. 2004) (“plain meaning of the MPLA's language is that the
statute imposes liability on the manufacturer or seller for
7

decide this issue, however, as plaintiff’s complaint is clearly
devoid of any allegation (other than conclusory) of due diligence
on her part to discover her cause of action.

Here, plaintiff

obviously knew on the date of the accident that the airbags failed
to deploy.

She may not have known the precise reason for the

malfunction, but she unequivocally knew on that date that the
airbags, had they functioned properly, should have deployed in the
collision, and that they did not do so.
she potentially had a cause of action.

She knew at that moment
Assuming for present

purposes that plaintiff had no reason to suspect any problem with
the vehicle’s airbags prior to the accident, that was not the case
once the accident occurred.

At that point, she knew the airbags

failed; and on that date, the statute of limitations clock began
to run.

Cf. Kampuries v. Am. Honda Motor Co., 204 F. Supp. 3d

warnings that were inadequate at the time of sale, not for
warnings that became inadequate at some later time”) (quoting
Palmer v. Volkswagen of Am., Inc., 905 So. 2d 564 (Miss. Ct. App.
Aug. 26, 2003)); Cross v. Amtec Med., Inc., No. 3:09-CV-00168-HTW,
2012 WL 4603396, at *8 (S.D. Miss. Sept. 30, 2012) (MPLA does
provide for liability “for dangers that are known, or that
reasonably should have been known, as of the time the product
leaves the control of the manufacturer or seller.”). Plaintiff
herein alleges that GM knew of the airbag defect well prior to the
time it shipped the vehicle to the dealer. The court notes, too,
that plaintiff has alleged that GM knew of and yet concealed the
defect from consumers, while touting the safety and reliability of
its vehicles. Similar allegations were held sufficient to state a
claim for fraudulent concealment under other states’ laws in In re
Gen. Motors LLC Ignition Switch Litig., No. 14-MC-2543 (JMF), 2017
WL 2839154, at *36 (S.D.N.Y. June 30, 2017), modified on
reconsideration, No. 14-MC-2543 (JMF), 2017 WL 3443623 (S.D.N.Y.
Aug. 9, 2017).
8

484, 492 (E.D.N.Y. 2016) (“Given that plaintiff's argument is that
defendants hid from him the fact that his airbag was defective and
would not deploy, this supposed fraud would actually have been
uncovered as soon as plaintiff crashed and his airbag did not
inflate.

Thus, ... plaintiff must have discovered the alleged

fraud at the time of his accident in 2007....”).

Her complaint,

filed more than three years later, was untimely.
For this reason, it is ordered that defendant’s motion to
dismiss is granted.

It is further ordered that plaintiff’s motion

to amend is denied, since her proposed amended complaint would be
time-barred, just as her original complaint is time-barred.7
A separate judgment will be entered in accordance with Fule
58 of the Federal Rules of Civil Procedure.
SO ORDERED this 13th day of October, 2017.

/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE

7

See H.R. by & through Robinson v. Double J. Logistics,
LLC, No. 3:16CV655TSL-RHW, 2017 WL 4158853, at *3 (S.D. Miss.
Sept. 19, 2017) (motion to amend may be denied on basis of
futility).
9