Burdess et al v. Cottrell, Inc.
Filing
20
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant Cottrell, Inc.'s Motion for Summary Judgment (Doc. 5 ), is DENIED. Signed by District Judge John A. Ross on 7/16/2018. (CLO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GREGORY L. BURDESS, et al.,
Plaintiffs,
v.
COTTRELL, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
Case No. 4:17-CV-01515 JAR
MEMORANDUM AND ORDER
This matter is before the Court on Defendant Cottrell, Inc.’s (“Cottrell”) Motion for
Summary Judgment. 1 (Docs. 5, 18, 19.) The motion is fully briefed and ready for disposition.2
For the following reasons, the motion will be denied.
Background
Plaintiff Gregory Burdess was at all relevant times employed as a car hauler by Jack
Cooper Transport Company (“JCT”), a registered motor carrier that regularly transports
materials and makes deliveries in Missouri. (Doc. 1.) Cottrell is a Georgia corporation with its
principal place of business in Georgia. (Id.) The rigs in the JCT motor carrier fleet, including
the rig at issue here, were manufactured, designed, and placed into the stream of commerce by
sale or otherwise by Cottrell. (Id.) Plaintiffs allege that “on or about April 26, 2013 and prior
thereto,” Burdess was operating a rig manufactured by Cottrell when he was injured “while
securing automobiles, during the operation of the ratchet tie down systems he had been using.”
1
The parties represented that additional discovery was not necessary and agreed that the Court
should convert Cottrell’s Motion to Dismiss to a Motion for Summary Judgment.
2
Cottrell was granted leave to supplement its motion briefing with the June 22, 2017 summary
judgment order in McCue v. Cottrell, No. 4:16-CV-01178 (W.D. Mo. 2017). (Docs. 8, 12, 13.)
(Id.) He was ultimately diagnosed with bilateral shoulder impingement syndrome,” a condition
caused by specific and repetitive trauma. (Id.) Burdess and his wife Lisa filed this action against
Cottrell on May 16, 2017, asserting five causes of action: strict liability (Count I); negligence
(Count II); breach of implied warranty (Count III); loss of consortium (Count IV); and punitive
damages (Count V).
Cottrell moves for summary judgment on the ground that Plaintiffs’ claims “originated”
in Illinois on April 26, 2013, and are thus barred by the Illinois statute of limitations for personal
injury claims as applied under Missouri’s borrowing statute, Mo. Rev. Stat. § 516.190. (Doc. 5.)
Plaintiffs oppose the motion, arguing that Missouri’s borrowing statute does not apply because
their cause of action originated and accrued in Missouri. (Doc. 10.)
Legal Standards
“Summary judgment is proper where the evidence, when viewed in a light most favorable
to the non-moving party, indicates that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law.” Davison v. City of Minneapolis, Minn.,
490 F.3d 648, 654 (8th Cir. 2007); see Fed. R. Civ. P. 56(c). In determining whether summary
judgment is appropriate in a particular case, the Court reviews the facts in a light most favorable
to the party opposing the motion and gives that party the benefit of any inferences that logically
can be drawn from those facts. The Court is required to resolve all conflicts of evidence in favor
of the nonmoving party. Osborn v. E.F. Hutton & Co., Inc., 853 F.2d 616, 619 (8th Cir. 1988).
In considering a motion for summary judgment, the Court may not make credibility
determinations, weigh the evidence, or draw inferences from the facts. Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011).
2
Discussion
There is no genuine issue of material fact in this case surrounding the time-bar issue.
Both Plaintiffs and Cottrell identify April 26, 2013, as the date the statute of limitations began to
run. 3 (Docs. 1, 5.) However, the parties dispute whether Plaintiffs’ claims are governed by
Missouri’s five-year statute of limitations or Illinois’s two-year deadline.
Federal courts apply the law of the forum state when ruling on statute of limitations
issues. Nettles v. American Tel. and Tel. Co., 55 F.3d 1358, 1362 (8th Cir. 1995). As noted,
under Missouri law, the statute of limitations in a personal injury action is five years. Mo. Rev.
Stat. § 516.120(4).
However, Missouri recognizes a statutory exception to its statute of
limitations in the form of a borrowing statute:
Whenever a cause of action has been fully barred by the laws of the state, territory or
country in which it originated, said bar shall be a complete defense to any action thereon,
brought in any of the courts of this state.
Mo. Rev. Stat. § 516.190 (emphasis added). As applied by Missouri courts, the borrowing
statute “provides for application of a foreign statute of limitations when [1] the alleged action
originated in the foreign jurisdiction and [2] the foreign statute of limitations would bar the
action.” Hollingsworth, 2017 WL 564491, at *2 (quoting Harris-Laboy v. Blessing Hosp., Inc.,
972 S.W.2d 522, 524 (Mo. Ct. App. 1998)).
The Supreme Court of Missouri has interpreted the term “originated” to mean “accrued.”
Id. (citing Thompson by Thompson v. Crawford, 833 S.W.2d 868, 871 (Mo. banc 1992)); see
also Mo. Rev. Stat. § 516.100. A cause of action accrues not “when the wrong is done . . . but
3
As discussed more fully below, the Court finds that Burdess’s claim did not accrue until he was
diagnosed with bilateral shoulder impingement, sometime between April 26, 2013 and May 31,
2013. (See id. at 37.)
3
when the damage resulting therefrom is sustained and is capable of ascertainment[.]” Levitt v.
Merck Sharp & Dohme Corp., 250 F. Supp. 3d 383, 385-86 (W.D. Mo. 2017). Missouri courts
have consistently held that “the statute of limitations begins to run when the ‘evidence was such
to place a reasonably prudent person on notice of a potentially actionable injury.’” Powel v.
Chaminade Coll. Preparatory, Inc., 197 S.W.3d 576, 582 (Mo. 2006), as modified on denial of
reh’g (Aug. 22, 2006) (quoting Bus. Men’s Assurance Co. of America v. Graham, 984 S.W.2d
501, 507 (Mo. banc 1999)).
Cottrell takes the position that Plaintiffs’ claim “originated” in Illinois, where his injuries
were “sustained and capable of ascertainment.” (Doc. 5 at 8-9.) In support of its motion,
Cottrell submits Plaintiff’s deposition testimony from his 2016 workers’ compensation claim for
the injuries he sustained in this case. (Doc. 5-3 (“Burdess depo.”).) Plaintiff testified that he
first noticed his injury on April 26, 2013, when he woke up at 3 a.m. in a motel room in McLean,
Illinois and could not feel his arms. (Id. at 35:15-36:20.)
Plaintiffs respond that where, as here, a claim is based on a physical ailment, it is
“sustained and capable of ascertainment at the latest” when (i) it is diagnosed, and (ii) a theory as
to its cause is ascertainable, relying on Buttice v. GD Searle & Co., 938 F. Supp. 561, 566-67
(E.D. Mo. 1996) (citing Lockett v. Owens-Corning Fiberglas, 808 S.W.2d 902, 907 (Mo. Ct.
App. 1991)). (Doc. 10 at 5.) Plaintiffs argue that Burdess was unaware that the numbness in his
arms was attributable to the repetitive use of a Cottrell rig until he sought medical treatment and
was diagnosed with bilateral shoulder impingement syndrome—in Missouri. (Id. at 8.)
In reply, Cottrell argues that it is “the discovery of damage” rather than discovery of an
alleged causal determination that is controlling on where the claim “originated.” (Doc. 11 at 36.)
4
The parties have submitted a number of exhibits in conjunction with their briefing on the
instant motion, including court documents, industry reports, an affidavit from Burdess, and his
workers’ compensation claim.
The Court first notes that “[t]he borrowing statute’s primary purpose is to prevent a
plaintiff from forum shopping for a more beneficial statute of limitations.” Hollingsworth v.
United Airlines, Inc., No. 4:16 CV 2139 DDN, 2017 WL 564491, at *2 (E.D. Mo. Feb. 13, 2017)
(quoting Finnegan v. Squire Publishers, Inc., 765 S.W.2d 703, 705 (Mo. Ct. App. 1989)); Patch
v. Playboy Enterprises, Inc., 652 F.2d 754, 758 (8th Cir. 1981) (“it is only by holding that
[Plaintiff’s] claim originated in Illinois that the anti-forum shopping purpose of
the Missouri borrowing statute can be consistently applied”).
This prevents plaintiffs from
“gaining more time to bring an action merely by suing in a forum other than where the cause of
action accrued.” Id. (quoting Finnigan, 765 S.W. 2d at 705.
In light of the statute’s primary purpose, the Court notes with some degree of suspicion
that, only weeks before filing this suit in the Eastern District of Missouri, Plaintiffs filed suit in
Illinois state court against Cottrell and others, alleging that Burdess was injured due to a design
defect in a Cottrell rig. (See Doc. 5-2, Burdess v. Cottrell, et al., No. 16L189 (Ill. Cir. Ct. Apr. 4,
2016).) It is difficult to ignore the obvious procedural benefit that Plaintiffs enjoy by separating
the claims and filing this suit in Missouri. However, the Court also notes that Plaintiffs’ Illinois
suit involves a different, traumatic, injury—a fall from the top level of a Cottrell rig—
attributable to a different product defect—the failure to install guardrails or otherwise fall-proof
the rig. (Doc. 5-2.) In this case, Burdess’s injury was allegedly caused by repetitive motion
inherent in operating the tie-down system on a Cottrell rig. (Doc. 1.) These differences in the
injuries and their alleged causes offer a reasonable basis for filing separate suits.
5
In any event, the Court finds that Missouri’s borrowing statute does not preclude
Plaintiffs’ claims because a reasonably prudent person waking up in the middle of the night with
numbness in his arms would not conclude that the numbness was the result of an actionable
injury. As Burdess testified in his worker’s compensation case, it was the first time he had
experienced numbness in his arms. (Doc. 5-3 at 36-37.) He had not recently experienced any
slip, fall, or other trauma that might explain the sensation, and he testified that he had had no
difficulties with his hands, wrists, arms, or shoulders before that night. (Id.) There was therefore
no obvious cause for the numbness that would lead a prudent person to conclude that it was the
result of a specific injury, let alone an injury for which another party could be held liable.
Indeed, a reasonably prudent person would have no reason to conclude that the numbness was
anything more than a temporary condition until a medical examination revealed that it was a
bona fide injury caused by the repetitive action of operating a Cottrell rig. See Elmore v. OwensIllinois, Inc., 673 S.W.2d 434 (Mo. banc 1984) (holding that a plaintiff’s claim did not accrue
until he was diagnosed with asbestosis even though he had experienced shortness of breath for
three years and knew from reading union publications that long-term breathing of asbestos dust
can cause asbestosis). Plaintiffs’ claims therefore accrued in Missouri.
The Court notes that formal diagnosis is not always the moment (or place) that damages
are first ascertainable. In State ex rel. Old Dominion Freight Line, Inc. v. Dally, 369 S.W.3d
773, 775 (Mo. Ct. App. 2012), a Missouri man sued a trucking company for whiplash injuries
caused by a collision with one of its drivers in Kansas. The Missouri Court of Appeals held that
the plaintiff’s damages were ascertainable immediately following the collision even though he
did not experience pain, report the injury, or seek treatment until after he returned to Missouri
hours later.
Id. at 779-80.
However, Dally is distinguishable from this case because a
6
reasonably prudent person involved in a motor vehicle collision that caused his head and neck to
snap forward would be on notice immediately that he had potentially suffered an injury for
which another party could be liable. As discussed above, there was no obvious cause of the
numbness in Burdess’s arms that would lead a reasonably prudent person to believe that he had
suffered an actionable injury.
Conclusion
The Court concludes that Plaintiffs’ cause of action against Cottrell originated in
Missouri. Consequently, the Missouri borrowing statute is not implicated in this case and
Missouri’s five-year statute of limitations governs. The Court finds that the statute of limitations
began running sometime between April 26, 2013, and May 31, 2013. Plaintiffs’ May 6, 2017,
complaint was therefore timely filed.
Accordingly,
IT IS HEREBY ORDERED that Defendant Cottrell, Inc.’s Motion for Summary
Judgment (Doc. 5), is DENIED.
Dated this 16th day of July, 2018.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?