American Family Insurance v. Waupaca Elevator Co.

2012 ND 13, 809 N.W.2d 337, 2012 N.D. LEXIS 13, 2012 WL 104747
North Dakota Supreme Court·Decided January 12, 2012·No. No. 20110198·Published·Cited by 8 cases

Opinion

SANDSTROM, Justice.

[11] - American Family Insurance, Prairie West Apartments I, a limited partnership, and Valley Rental Service, Inc. ("American Family") appeal from a judgment dismissing with prejudice negligence and strict lability claims against Waupaca Elevator Company, Inc., on the basis that American Family did not begin its action against Waupaca Elevator within the six-year statute of limitations. We reverse the judgment and remand for further proceedings, concluding American Family properly served its summons and complaint upon Waupaca Elevator within the statute of limitations.

I

[12] On December 30, 2010, American Family sued Waupaca Elevator, a Wisconsin corporation with its principal place of business in Outagamie County, Wisconsin, alleging an elevator designed, manufactured, marketed, and sold by Waupaca Elevator damaged American Family's apartment building in West Fargo on December 30, 2004. American Family faxed a copy of its summons and complaint to the Outagamie County Sheriff's Department in Appleton, Wisconsin, and instructed the sheriffs department to serve both documents upon Waupaca Elevator after receiving the original documents by certified mail, The sheriff's department acknowledged receipt of the fax the same day by stamping the cover letter. Also on December 30, American Family mailed the original summons and complaint to the sheriff's department and sent a copy of both documents by certified mail to Larry Rice, an agent of Waupaca Elevator. On January 4, 2011, after receiving the original summons and complaint by certified mail, the sheriff's department personally served both upon William MceMichael, an officer of Waupaca Elevator. Rice also signed for and received a copy of the summons and complaint by certified mail on January 4, 2011.

[13] Waupaca Elevator moved to dismiss the action, claiming American Family served the complaint insufficiently and outside the six-year statute of limitations for a tort action. American Family responded the statute of limitations countdown began to run on December 31, 2004, the day after the action accrued, and argued it timely served the complaint upon Waupaca Elevator on December 30, 2010.

[14] After a hearing on Waupaca Elevator's motion to dismiss, the district court dismissed American Family's complaint with prejudice, concluding American Fami[340] ly did not begin the action within the six-year statute of limitations.

[15] The district court had jurisdiction under ND. Const. art. VI, § 8, and NDCC. § 27-05-06. American Family timely appealed under N.D.R.App.P. 4(a). We have jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-OL.

II

[16] American Family argues it served the summons and complaint upon Waupaca Elevator within the six-year statute of limitations and the district court erred in calculating the beginning and ending dates of the statute of limitations. American Family argues the district court failed to exclude the date the action accrued, December 30, 2004, in calculating the date from which to begin the statute of limitations and the district court failed to include the date six years after the date of accrual, December 30, 2010, the "last day," in calculating the deadline by which American Family had to serve its complaint. American Family argues it properly and timely delivered the summons and complaint to the Outagamie County Sheriffs Department on December 30, 2010, to be served upon Waupaca Elevator, as allowed by statute.

[T7] A motion to dismiss on the pleadings must be treated as one for summary judgment if matters outside the pleadings are presented to and not exelud-ed by the district court. N.D.R.Civ.P. 12(d). Here the district court considered matters outside the pleadings, and both parties agree the district court treated Waupaca Elevator's motion to dismiss on the pleadings as a motion for summary judgment.

[T8] "Summary judgment is a procedure for promptly resolving a controversy without a trial if the evidence shows there are no genuine issues as to any material fact and any party is entitled to judgment as a matter of law." Gratech Co., Ltd. v. Wold Eng'g, P.C., 2008 ND 200, ¶ 8, 672 N.W.2d 672; N.D.R.Civ.P. 56(c). "'Even if a factual dispute exists, summary judgment is proper if the law is such that resolution of the factual dispute will not change the result"" Id. (quoting Koapke v. Herfendal, 2003 ND 64, ¶ 11, 660 N.W.2d 206). The standard of review for a district court's grant of summary judgment is de novo. Lucas v. Riverside Park Condominiums Unit Owners Ass'n, 2009 ND 217, ¶ 16, 776 N.W.2d 801. The evidence is reviewed in a light most favorable to the party opposing summary judgment. Makeeff v. City of Bismarck, 2005 ND 60, ¶ 12, 693 N.W.2d 639.

A

[19] American Family argues it served the summons and complaint upon Waupaca Elevator within the general six-year statute of limitations for tort actions under N.D.C.C. § 28-01-16, which provides:

The following actions must be commenced within six years after the claim for relief has acerued:
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5. An action for criminal conversation or for any other injury to the person or rights of another not arising upon contract, when not otherwise expressly provided.

"The purpose of a statute of limitation is to prevent 'plaintiffs from sleeping on their legal rights to the detriment of the defendants'" Erickson v. Scotsman, Inc., 456 N.W.2d 535, 537 (N.D.1990) (quoting Hanson v. Williams County, 389 N.W.2d 319, 321 (N.D.1986)). "Thus, statutes of limitation are designed to prevent the plaintiff's enforcement of stale claims when, through [341] the lapse of time, evidence regarding the claim has become difficult to procure or even lost entirely." Id.

[110] American Family argues the district court erroneously calculated the six-year statute of limitations. It argues N.D.R.Civ.P. 6(a) applies when caleu-lating the beginning and ending dates for its claims.

[T11] The - explanatory - note - to N.D.R.Civ.P. 6(a) states the rule was amended effective March 2011 to simplify and clarify the provisions describing the computation of deadlines. The 2011 amendments to N.D.R.Civ.P. 6(a), however, created no substantive changes that apply here. Consequently, we reach the same result under both versions of the rule. Because the 2011 amendments to N.D.R.Civ.P. 6(a) were not in effect before American Family's claimed injuries or when American Family mailed the summons and complaint to the Outagamie County Sheriff's Department on December 30, 2010, we apply the former N.D.R.Civ.P. 6(a), which provided:

In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run may not be included. The last day of the period so computed must be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.

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American Family Insurance v. Waupaca Elevator Co., 2012 ND 13, 809 N.W.2d 337, 2012 N.D. LEXIS 13, 2012 WL 104747 (N.D. 2012).

2012 ND 13 (American Family Insurance v. Waupaca Elevator Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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