Susman v. Kearney Towing & Repair Center

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Susman v. Kearney Towing & Repair Center

Case Number
Call Date
December 1, 2021
Case Time
9:30 AM
Court Number
Case Location
Hastings High School
Court Type
District Court
Case Summary

S-21-0277, Rysta L. Susman, individually & mother of Shane Allen Loveland, Shane Allen Loveland, a Protected Person by & through Temporary Guardian & Conservator, John Sauder, & Jacob Summers (appellants) v. Kearney Towing & Repair Center, Inc.

District Court of Buffalo County, Hon. John H. Marsh

Attorneys:              Michael Coyle; Karson Kampfe (Fraser Stryker)(appellants); Stephen Olson, II; Kristina Kamler (Engles, Ketcham, Olson & Keith).

Civil:                  Torts; Occurrence Rule; Accrual of Claim

Proceedings Below: Plaintiffs/appellants sued Kearney Towing, alleging negligence and breach of contract. Kearney Towing filed a third party complaint. It later moved for summary judgment based on the statute of limitations. The court overruled the motion, but Kearney Towing moved the court to reconsider. The court sustained its motion, entered judgment in Kearney Towing’s favor, and dismissed plaintiffs’ action. Plaintiffs filed a motion to dismiss their breach of contract claim, to reconsider judgment, or in the alternative, to alter or amend the judgment to dismiss the third party complaint. The court overruled their motion to reconsider, but it sustained their motion to dismiss the breach of contract claim and their motion to alter or amend. Plaintiffs appeal.

Issues on Appeal: Consolidated and restated, the issues are whether the court erred in (1) ruling that plaintiffs’ negligence claim accrued when the wrongful act or omission occurred, and (2) finding their action was barred by the statute of limitations.

Facts: On June 10, 2014, Kearney Towing installed a used tire on a truck owned by Dandee Concrete Construction, Inc. On May 1, 2015, Shane Allen Loveland and Jacob Summers were passengers in Dandee’s truck when it was involved in a single vehicle accident. On April 12, 2019, plaintiffs sued Kearney Towing. They asserted a negligence claim regarding Kearney Towing’s tire installation, and sought damages related to injuries sustained in the accident. They also asserted a breach of contract claim. Kearney Towing alleged the action was barred by the statute of limitations. Kearney Towing also filed a third party complaint.

     Kearney Towing moved for summary judgment on its statute of limitations defense. The court initially overruled this motion, but Kearney Towing moved the court to reconsider, and the court sustained the motion. In doing so, it stated, “In a negligence action, a statute of limitations begins to run as soon as the cause of action accrues, and an action in tort accrues as soon as the act or omission occurs; this principle is referred to as the occurrence rule.” The court therefore found that the plaintiffs’ cause of action accrued at the time that the tire was installed on June 10, 2014, and plaintiffs’ action was barred because it was filed outside of the 4-year statute of limitations prescribed by Neb. Rev. Stat. § 25-207. The plaintiffs subsequently moved to dismiss their breach of contract claim, and they also moved the court to reconsider its judgment, or in the alternative, to alter or amend the judgment to dismiss the third party complaint. The court then dismissed the breach of contract claim, overruled plaintiffs’ motion to reconsider, and dismissed the third party complaint.

On appeal, appellants argue the court incorrectly found that their negligence claim accrued when the wrongful act/omission occurred. They contend the occurrence rule may make sense when the injury and the wrongful conduct occur simultaneously, but it does not make sense in an atypical scenario such as this where the wrongful conduct occurs well before any injury to the plaintiff. They also argue that this rule is not commensurate with the language of § 25-207, which prescribes a 4-year limitations period for “an action for an injury to the rights of the plaintiff, not arising on contract,” and § 25-201, which says that “[a] civil action shall be commenced only within the time prescribed in this chapter, after the cause of action has accrued.” They generally ask this court to clarify that the occurrence rule does not apply as a blanket rule to all tort cases. They argue that (1) general tort claims accrue only when a plaintiff has the right to institute/maintain suit, (2) negligence actions governed by § 25-207(3) accrue only once the plaintiff’s rights are directly injured, and (3) their action was timely filed because their claim did not accrue until May 1, 2015. Appellee contends that the occurrence rule applies. It argues Nebraska has long-applied this rule, and the rule is commensurate with the text of § 25-207(3), as well as other related statutory provisions. It argues that the discovery rule resolves any unfairness that may otherwise result.

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