United States District Court, E.D. Missouri, Eastern Division
GREGORY L. BURDESS, et al., Plaintiffs,
COTTRELL, INC., Defendant.
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Cottrell, Inc.'s
(“Cottrell”) Motion for Summary
Judgment. (Docs. 5, 18, 19.) The motion is fully
briefed and ready for disposition.For the following reasons,
the motion will be denied.
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).
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.
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).
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. (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
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
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  the
alleged action originated in the foreign jurisdiction and 
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)).
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)).
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