Vicknair v. Phelps Dodge Industries, Inc.

2011 ND 39, 794 N.W.2d 746, 2011 N.D. LEXIS 39
CourtNorth Dakota Supreme Court
DecidedFebruary 18, 2011
DocketNo. 20100029
StatusPublished
Cited by10 cases

This text of 2011 ND 39 (Vicknair v. Phelps Dodge Industries, Inc.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vicknair v. Phelps Dodge Industries, Inc., 2011 ND 39, 794 N.W.2d 746, 2011 N.D. LEXIS 39 (N.D. 2011).

Opinion

VANDE WALLE, Chief Justice.

[¶ 1] Joseph Vicknair and twelve other plaintiffs appealed from a district court summary judgment dismissing their asbestos-related product liability actions against Phelps Dodge Industries, Inc., and numerous other companies on the grounds that the applicable statutes of limitations had run on their claims. We affirm, concluding the district court did not err in ruling North Dakota’s six-year statute of limitations for personal injury actions did not apply to the plaintiffs’ claims and in refusing to allow additional time for discovery before ruling on the summary judgment motion.

I

[¶ 2] In December 2002, the plaintiffs were part of a group of individuals who [751]*751brought actions in district court against manufacturers, sellers, and distributors of asbestos-containing products, claiming they were injured by exposure to those products. All of the plaintiffs involved in this appeal are residents of states other than North Dakota and do not claim that their exposure to asbestos-containing products occurred in North Dakota. The numerous corporate defendants are residents of various states, including North Dakota.

[¶ 3] The defendants moved to dismiss the plaintiffs’ claims, arguing North Dakota was an inconvenient forum to conduct the litigation. The district court granted the motions and dismissed the claims without prejudice. The plaintiffs appealed, arguing the court erred in dismissing the claims based upon forum non conveniens because the statutes of limitations had run in all other jurisdictions except North Dakota. This Court reversed the judgment dismissing the plaintiffs’ claims and remanded for further proceedings, concluding the availability of an alternate forum is a prerequisite to application of forum non conveniens and “an adequate alternative forum does not exist if the statute of limitations has expired in the proposed alternative forum.” Vicknair v. Phelps Dodge Indus., Inc., 2009 ND 113, ¶ 13, 767 N.W.2d 171. We expressly cautioned, however, that our decision “does not necessarily mean North Dakota’s applicable statute of limitations will govern in this case.” Id.

[¶ 4] On remand following the first appeal the defendants again moved for summary judgment, arguing that the applicable statutes of limitations had run on all of the plaintiffs’ claims. The plaintiffs conceded that the applicable statutes of limitations in all other potential jurisdictions, which ranged from one to four years, had run on their claims. They argued, however, that the district court should apply the “escape clause” of the Uniform Conflict of Laws — Limitations Act, N.D.C.C. § 28-01.2-04, and apply North Dakota’s longer six-year statute of limitations to their claims. Alternatively, the plaintiffs requested that the court permit additional time for discovery before ruling on the motion for summary judgment. The district court concluded the escape clause did not apply and the plaintiffs’ claims were barred by the statutes of limitations. Judgment was entered dismissing the plaintiffs’ claims with prejudice.

II

[¶ 5] The plaintiffs contend the district court erred in concluding that the escape clause in N.D.C.C. § 28-01.2-04 did not apply and that North Dakota’s six-year personal injury statute of limitations therefore did not govern their claims.1

[¶ 6] North Dakota has adopted the Uniform Conflict of Laws — Limitations Act. See N.D.C.C. ch. 28-01.2. Under the Act, limitations laws are treated as substantive rather than procedural, and ordinarily courts are to apply the statute of limitations of the state whose law governs the substantive issues in the case. See N.D.C.C. § 28-01.2-02; Perkins v. Clark Equip. Co., 823 F.2d 207, 210 (8th Cir.1987); Prefatory Note, Uniform Conflict of Laws — Limitations Act, 12 U.L.A. 156 (2008). According to the drafters of the Uniform Act, the purpose of treating the statute of limitations as substantive rather than procedural is to discourage “[f|orum [752]*752shopping by delay-prone plaintiffs, or by their attorneys, with suits filed in states with long limitation periods.” Prefatory Note, supra, 12 U.L.A. 156; see also Leflar, The New Conflicts — Limitations Act, 35 Mercer L.Rev. 461, 479 (1984) (“a main purpose of the new act was to do away with forum shopping”).

[¶ 7] Section 28-01.2-02, N.D.C.C., governs the determination of which state’s statute of limitations will apply in an action brought in this state:

1. Except as provided by section 28-01.2-04, if a claim is substantively based upon:
a. The law of one other state, the limitation period of that state applies; or
b. The law of more than one state, the limitation period of one of those states chosen by the law of conflict of laws of this state, applies.
2. The limitation period of this state applies to all other claims.

[¶ 8] The plaintiffs do not argue that the substantive law of North Dakota will apply to any of the claims in this case. Each of the plaintiffs’ respective claims is based upon the substantive law of some other state or states. Thus, if the general choice-of-law principles of N.D.C.C. § 28-01.2-02 apply, those other states’ respective statutes of limitations apply and all of the plaintiffs’ claims are barred.

[¶ 9] The plaintiffs allege, however, that N.D.C.C. § 28-01.2-02 recognizes an exception which requires the application of North Dakota’s statute of limitations to their claims. They rely exclusively upon N.D.C.C. § 28-01.2-04, which provides:

If the court determines that the limitation period of another state applicable under sections 28-01.2-02 and 28-01.2-03 is substantially different from the limitation period of this state and has not afforded a fair opportunity to sue upon, or imposes an unfair burden in defending against, the claim, the limitation period of this state applies.

The drafters of the Uniform Act, although noting that this provision created an “escape clause” allowing courts to “avoid injustice in particular cases,” expressly cautioned that it “should rarely be employed,” and only in “extreme cases” to avoid “harsh results.” Uniform Conflict of Laws — Limitations Act § 4, Comment, 12 U.L.A. 162. The drafters further emphasized the limited application of the escape clause:

Litigants will not often be able to take advantage of the “escape clause.” It is not enough that the forum state’s limitation period is different from that of the state whose substantive law is governing; the difference must be “substantial,” and the “fair opportunity” provision constitutes a separate and additional requirement. An “escape clause” is needed, but it is not designed to afford an “easy escape”.

Id. Professor Leflar, who chaired the Committee of the National Conference of Commissioners on Uniform State Laws that prepared the Uniform Act, see 12 U.L.A. 155, has noted that the escape clause should be “construed as narrowly as possible,” and although fact situations to which the escape clause may apply “can be imagined, ... there cannot be many of them.” Leflar, supra, 35 Mercer L.Rev. at 479-80.

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Vicknair v. Phelps Dodge Industries, Inc.
2011 ND 39 (North Dakota Supreme Court, 2011)

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Bluebook (online)
2011 ND 39, 794 N.W.2d 746, 2011 N.D. LEXIS 39, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vicknair-v-phelps-dodge-industries-inc-nd-2011.