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Burdess v. Cottrell, Inc.

United States District Court, E.D. Missouri, Eastern Division

July 16, 2018

GREGORY L. BURDESS, et al., Plaintiffs,
COTTRELL, INC., Defendant.



         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.


         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.” (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).


         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 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 ...

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