Marvin W. Masters, Esq.
Richard A. Monahan, Esq.
Masters & Taylor
Charleston, West Virginia
Attorneys for Appellants
Daniel A. Ruley, Esq.
Pullin, Fowler & Flanagan
Beckley, West Virginia
Attorney for ASCO Services, Inc.
Richard A. Hayhurst, Esq.
Parkersburg, West Virginia
George W. Flynn, Esq.
Flynn, Gaskins & Bennett
Minneapolis, Minnesota
Attorneys for ADEMCO Group,
Pittway Corporation, System
Sensor & Honeywell Inc.
Brent K. Kesner, Esq.
Ernest G. Hentschel, II, Esq.
Ellen R. Archibald, Esq
Kesner, Kesner & Bramble
Charleston, West Virginia
Attorney for Ohio Farmers
| April C. Morgan Hincy, Esq.
John C. Bogut, Jr., Esq.
Marla N. Presley, Esq.
Wayman, Irvin & McAuley
Pittsburgh, Pennsylvania
Attorneys for Chemetronics
Caribe, Inc. and Kidde-Fenwal, Inc.
Thomas V. Flaherty, Esq.
Andrew B. Cooke, Esq.
Flaherty, Sensabaugh & Bonasso
Charleston, West Virginia
Attorneys for Toyota Motor Corporation
Dennis C. Sauter, Esq.
Thomas J. Hurney, Esq.
Myrissa Smith, Esq.
Matthew A. Nelson, Esq.
Jackson Kelly, PLLC
Charleston, West Virginia
Hugh F. Young, Jr., Esq.
Product Liability Advisory Council, Inc.
Reston, Virginia
Attorneys for Amicus Curiae
Product Liability Advisory Council, Inc. |
The Opinion was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “A
circuit court's entry of summary judgment is reviewed
de novo.” Syllabus
Point 1,
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994)
.
2. “The
cause of action covered by the term 'strict liability in tort' is designed to
relieve the plaintiff from proving that the manufacturer was negligent in some
particular fashion during the manufacturing process and to permit proof of the
defective condition of the product as the principal basis of liability.” Syllabus
Point 3,
Morningstar v. Black and Decker Mfg. Co., 162 W.Va. 857, 253
S.E.2d 666 (1979).
3. “In
this jurisdiction the general test for establishing strict liability in tort
is whether the involved product is defective in the sense that it is not reasonably
safe for its intended use. The standard of reasonable safeness is determined
not by the particular manufacturer, but by what a reasonably prudent manufacturer's
standards should have been at the time the product was made.” Syllabus Point
4, Morningstar v. Black and Decker Mfg. Co., 162 W.Va. 857, 253 S.E.2d
666 (1979).
4. “Circumstantial
evidence may be sufficient to make a prima facie case in a strict liability
action, even though the precise nature of the defect cannot be identified, so
long as the evidence shows that a malfunction in the product occurred that would
not ordinarily happen in the absence of a defect. Moreover, the plaintiff must
show there was neither abnormal use of the product nor a reasonable secondary
cause for the malfunction.” Syllabus Point 3, Anderson v. Chrysler Corp.,
184 W.Va. 641, 403 S.E.2d 189 (1991).
5. “In
tort actions, unless there is a clear statutory prohibition to its application,
under the discovery rule the statute of limitations begins to run when the plaintiff
knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff
has been injured, (2) the identity of the entity who owed the plaintiff a duty
to act with due care, and who may have engaged in conduct that breached that
duty, and (3) that the conduct of that entity has a causal relation to the injury.” Syllabus
Point 4, Gaither v. City Hospital, Inc., 199 W.Va. 706, 487 S.E.2d
901 (1997).
Per Curiam:
In this
appeal from the Circuit Court of Wood County, we are asked to review three orders
granting summary judgment to various defendants in a product liability action.
The plaintiffs allege that a defect in a Toyota Camry caused a fire in their
garage, and that a defect in a home fire alarm system permitted the fire to spread
and destroy their home. After the fire, the plaintiffs' insurers allegedly destroyed
the vehicle and the alarm system, preventing a thorough investigation of the
alleged defects.
In two
summary judgment orders, the circuit court dismissed the plaintiffs' claims against
two groups of defendants because, as a result of the destruction of the vehicle
and alarm system, the plaintiffs could not specifically identify the defect that
caused the malfunction in those products. Furthermore, the court believed that
the plaintiffs did not rule out all other potential causes for the malfunction
in those products. In a third summary judgment order, the circuit court dismissed
the plaintiffs' claims against one product manufacturer as barred by the statute
of limitation.
As set
forth below, we reverse the circuit court's first two summary judgment orders
and find evidence sufficient to create a triable question of fact as to whether
the product malfunctions were the result of inherent defects. However, we affirm
the circuit court's third order finding the plaintiffs' claims against one manufacturer
barred by the statute of limitation.
I.
This
civil action arises from a residential fire which destroyed the home of the appellants
and plaintiffs-below, Kenneth G. and Rosilyn K. Bennett and their daughter, Rebecca
A. Bennett, during the early morning hours on March 25, 1998.
In 1995,
the Bennetts moved into their new home in Vienna, West Virginia, which had just
been constructed by Mr. Bennett's company, Bob Bennett Homes, Inc. Mr. Bennett
contracted with defendant-below ASCO Services, Inc., to install a burglary and
fire alarm system in the home. ASCO Services installed an alarm system which
contained components manufactured by various subsidiaries of appellee and defendant-below
Honeywell, Inc.,
(See footnote
1) and which also contained heat sensors manufactured by appellee
and defendant-below Chemetronics Caribe, Inc. (“Chemetronics”). In
addition, the Bennetts paid for ASCO Services to monitor the system. As a further
precautionary measure, Mr. Bennett purchased battery-operated smoke detectors
and placed them throughout the house.
After
the alarm system was installed, several false alarms occurred. During these false
alarms, verbal warnings of a fire would be issued through speaker boxes placed
throughout the house (saying “Fire. Fire. Evacuate the premises immediately.”),
sirens would sound, and a strobe light located outside the house would flash.
Each time a false
alarm occurred, the Bennetts would speak with an employee of ASCO Services,
and ASCO Services would subsequently inspect and/or repair the system. The
Bennetts were repeatedly assured by ASCO Services that the alarm system was
functioning properly and safely.
On March
25, 1998, Mrs. Bennett awoke in the night, smelled smoke and heard a battery-operated
smoke detector beeping. Mrs. Bennett woke her daughter, then went downstairs
to the garage, turned on the lights and saw flames coming from under the hood
area of the Bennetts' Toyota Camry which was parked in the middle stall of the
garage. She then woke her husband and as he dressed, the telephone began ringing.
The caller announced that she was with ASCO Services, and asked if the Bennetts
were having a problem. Mr. Bennett contends he responded affirmatively, and asked
that fire trucks be sent.
Mr. Bennett
went to the garage and saw that the engine area of the Camry was on fire, but
the fire was so far advanced that Mr. Bennett could not control it. Experts later
estimated that, when it was discovered, the fire had been burning for twenty
to thirty minutes. Although firemen arrived shortly thereafter, the Bennetts
suffered a total loss of their home and its contents. The Bennetts contend that
at no time on the night of the fire did the fire alarm system installed by ASCO
Services trigger any audible or visual warnings.
The fire
was investigated by the Bennetts' homeowner's insurance carrier, defendant-below
Ohio Farmers Insurance Company, and their car insurance carrier, defendant-below
Westfield Insurance Company. Mr. Bennett asserts that he informed the insurance
company investigators of his belief that the fire started in the Camry, and that
the fire spread throughout the house because the fire alarm system failed to
operate properly.
Ohio Farmers and Westfield removed the Camry from the Bennetts' property and
placed it in storage for a complete investigation. Insurance company investigators
examined the Camry and concluded that the cause of the fire was “undetermined,” and
thereafter disposed of the Camry. A few weeks after the fire, Ohio Farmers
paid a contractor to tear down the remains of the Bennett's house and haul
the debris to a landfill, after allegedly assuring Mr. Bennett that everything
necessary for Ohio Farmers' investigation had been removed. Apparently, none
of the parties examined or removed any portion of the alarm system for investigation,
and the alarm system was destroyed and disposed of in the removal process.
The Bennetts
subsequently brought the instant lawsuit against Toyota, Inc.,
(See
footnote 2) for alleged product defects in the Toyota Camry that
were the cause of the fire, and against Honeywell and ASCO Services for alleged
product defects in the alarm system that allowed the fire to go undetected, thereby
resulting in the total destruction of the house. Additionally, the Bennetts brought
suit against ASCO Services alleging negligence in the design, installation, and/or
maintenance of the alarm system. The Bennetts later filed amended complaints
against Ohio Farmers and Westfield for spoliation of evidence, alleging that
the insurance companies had impaired the Bennetts' ability to prosecute their
lawsuit because of careless destruction of the Toyota Camry and the alarm system.
See Hannah
v. Heeter,
213 W.Va. 704, 584 S.E.2d 560 (2003) (discussing the elements of a cause of
action for spoliation).
During
discovery, in June 2000, the Bennetts were provided documents that identified
Honeywell and its subsidiaries as the manufacturer of many of the components
of the alarm system. However, the documents also identified Chemetronics as the
manufacturer of the heat sensors used in the alarm system, along with a web site
for Chemetronics. The Bennetts' experts identified the heat sensors as significant
factors in the failure of the alarm system because of their location in the garage
and because the sensors failed to operate properly and detect the fire within
one minute of ignition as designed to do. The Bennetts' experts also determined
that the fire had been burning for 20 to 30 minutes when discovered by the Bennetts.
However, the Bennetts presumed that Chemetronics was simply another Honeywell
subsidiary. It was not until October 2001, during the deposition of an ASCO Services
employee, that the Bennetts discovered that Chemetronics was not a Honeywell
subsidiary. Thereafter, in October 2002, the Bennetts filed another amended complaint
to include Chemetronics and its parent corporation, Kidde-Fenwal, Inc., as defendants.
After
extensive discovery, the defendants filed motions for summary judgment. On December
11, 2003, the circuit court entered three orders granting summary judgment to
three groups of defendants: the Toyota defendants, the Honeywell defendants,
and Chemetronics. The circuit court's first two orders, granting summary judgment
to the Toyota and Honeywell defendants respectively, dismissed the Bennetts'
claims of product liability because the Bennetts were unable to identify the
precise defects and/or causes of the
fire, or identify the defects that caused the failure of the alarm system,
because of the destruction and spoliation of the Camry and alarm system. The
court found that the circumstantial evidence presented was insufficient to
defeat summary judgment because the Bennetts could not show that the fire “would
not ordinarily happen in the absence of a defect” and that “there
was no reasonable secondary cause for the malfunction.” In the third order,
the circuit court granted summary judgment in favor of Chemetronics, finding
that the appellants' claims were barred by the two-year statute of limitations.
(See
footnote 3)
The Bennetts
now appeal the circuit court's three orders dated December 11, 2003.
II.
We are
asked to review the circuit court's award of summary judgment in favor of several
appellees. We review a circuit court's summary judgment ruling under the standard
announced in Syllabus Point 1 of
Painter v. Peavy,
192 W.Va. 189,
451 S.E.2d 755 (1994),
which is as follows: “A circuit court's entry
of summary judgment is reviewed
de novo.”
In reviewing
summary judgment, this Court will apply the same test that the circuit court
should have used initially, and must determine whether “it is clear that
there is
no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law.” Syllabus Point 3,
Aetna
Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va.
160, 133 S.E.2d 770 (1963). We defined a “genuine issue of fact” in
Syllabus Point 5 of
Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995):
Roughly
stated, a “genuine issue” for purposes of West Virginia Rule of Civil
Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue
does not arise unless there is sufficient evidence favoring the non-moving party
for a reasonable jury to return a verdict for that party. The opposing half of
a trialworthy issue is present where the non-moving party can point to one or
more disputed “material” facts. A material fact is one that has the
capacity to sway the outcome of the litigation under the applicable law.
As with the circuit court, we “must draw any permissible inference from
the underlying facts in the light most favorable to the party opposing the
motion,” that is, the appellants.
Painter v. Peavy,
192
W.Va. at 192, 451 S.E.2d at 758.
We keep
these standards in mind in addressing the appellants' arguments.
III.
The Bennetts
argue that summary judgment was inappropriate as to the product liability claims
against Toyota and against Honeywell because different conclusions may be drawn
from the evidence as to the existence of a defect in the Camry, and as to the
existence of a defect in the fire alarm system. The appellants argue that there
is a triable issue of fact regarding whether these defects were the cause of
the fire and, ultimately, the total loss of the house. We are therefore asked
to consider whether the Bennetts have come forward with
enough evidence to defeat summary judgment, and to permit a jury to decide
whether or not defects existed in the Camry and in the alarm system, whether
or not the fire would have happened in the absence of the defect, and whether
or not the fire would have totally destroyed their home. The appellants also
argue that the circuit court improperly dismissed the claims against Chemetronics
as barred by the statute of limitations, maintaining that the time limit for
filing their claim should be tolled by the discovery rule, and did not begin
to run until the appellants discovered Chemetronics was an entity separate
from Honeywell.
A.
Circumstantial Evidence of Product Defect _ Toyota
and Honeywell
The circuit
court granted summary judgment to Toyota, holding that the Bennetts did not establish
the existence of a defect in their Toyota Camry, and did not rule out all other
potential causes for the fire such that a jury could only conclude that a defect
present in the Camry when it left Toyota's control caused the fire. The circuit
court, in its order, stated: “Alleging that the 'cause' of the fire was
in or around the Toyota, is insufficient to establish a legal 'defect'.”
The court
similarly granted summary judgment in favor of Honeywell because the “plaintiffs
have no evidence eliminating reasonable secondary causes of the alleged failure
of the fire detection and -warning system.” Additionally, the circuit court
stated that the Bennetts presented no evidence that the products supplied by
Honeywell “had a design or manufacturing defect at the time they left control
of the Honeywell defendants.”
The
Bennetts contend that the circuit court erred, arguing that they presented substantial
circumstantial evidence of a defect to defeat the summary judgment motion by
Toyota. The appellants cite to the extensive testimony of their expert who opined
that the cause of the fire was from a defect or failure in the wiring system
of the Camry. The Bennetts point out that secondary causes of the fire have been
ruled out by both the insurers' investigators, as well as by their expert.
Additionally,
the Bennetts contend that they presented sufficient circumstantial evidence to
defeat the summary judgment motion by Honeywell. An expert for the Bennetts testified
that the existence of a defect in the Honeywell alarm system was likely because,
when the Honeywell system simply malfunctions, the system issues audible warnings
of a malfunction. The Bennetts argue that the fire alarm system had a defect
because it failed to issue any audible or visual warnings _ of either a malfunction
or a fire _ at any time during the night of the fire. A Bennett expert testified
that the failure of the fire alarm system was caused by a defect in the system,
by an installation or maintenance error by ASCO Services, or both.
We adopted
a cause of action for strict products liability in
Morningstar v. Black and
Decker Mfg. Co.,
162 W.Va. 857, 253 S.E.2d 666 (1979). We held in
Syllabus Point 3 of
Morningstar that the cause of action is “designed
to relieve the plaintiff from proving that the manufacturer was negligent in
some particular fashion during the manufacturing process and to permit proof
of the defective condition of the product as the
principal basis of liability.” The general test of whether a product is
defective was established in Syllabus Point 4, where we held:
In
this jurisdiction the general test for establishing strict liability in tort
is whether the involved product is defective in the sense that it is not reasonably
safe for its intended use. The standard for reasonable safeness is determined
not by the particular manufacturer, but by what a reasonably prudent manufacturer's
standards should have been at the time the product was made.
A plaintiff
is not required to establish a strict products liability cause of action by identifying
the specific defect that caused the loss, but instead may permit a jury to infer
the existence of a defect by circumstantial evidence. This Court held in Syllabus
Point 3 of
Anderson v. Chrysler,
184 W.Va. 641, 403 S.E.2d 189
(1991), that:
Circumstantial
evidence may be sufficient to make a
prima facie case in a strict liability
action, even though the precise nature of the defect cannot be identified, so
long as the evidence shows that a malfunction in the product occurred that would
not ordinarily happen in the absence of a defect. Moreover, the plaintiff must
show that there was neither abnormal use of the product nor a reasonable secondary
cause for the malfunction.
In adopting this rule in
Anderson, we reasoned that a product defect
may be inferred where there is evidence sufficient for a jury to conclude that
the accident would not have occurred unless the product was defective:
In
most instances the plaintiff will produce direct evidence of the product's defective
condition. In some instances, however, the plaintiff may not be able to prove
the precise nature of the defect in which case reliance may be had on the “malfunction” theory
of product liability. This theory encompasses nothing more than circumstantial
evidence of product malfunction. . . . It permits a plaintiff to prove a defect
in a product with evidence
of the occurrence of a malfunction and with evidence eliminating abnormal use
or reasonable, secondary causes for the malfunction. . . . It thereby relieves
the plaintiff from demonstrating precisely the defect yet it permits the trier-of-fact
to infer one existed from evidence of the malfunction, of the absence of abnormal
use and of the absence of reasonable, secondary causes.
Anderson, 184 W.Va. at 645, 403 S.E.2d at 193 (
quoting Rogers
v. Johnson & Johnson Products, Inc., 523 Pa. 176, 181, 565 A.2d 751,
754 (1989)).
Under
Anderson,
while a defect in a product cannot be presumed solely from the fact that an accident
occurred, proof that a product malfunctioned _ that is, failed to function as
it was intended and typically would in normal usage _ is circumstantial proof
of its defective condition.
Anderson does not require a plaintiff, to
succeed at the summary judgment stage, to conclusively eliminate all possible
contributing causes other than a defect for an accident. Instead, a plaintiff
is only required to submit evidence that has the capacity to sway the outcome
of the litigation, and from which a jury could fairly conclude that the most
likely explanation of the accident involves the causal contribution of a product
defect.
Under
Anderson's
malfunction theory, “a plaintiff makes a submissible case of proof that
the accident was caused by some unspecified defect and that no other cause is
likely. . . . The plaintiff is not required to eliminate with certainty all other
possible causes of the accident. It is sufficient if the evidence reasonably
eliminates other causes such as the handling or misuse of the product by others
than the manufacturer, thus permitting the fact finder to find that it was more
probably [sic] than not that the product was defective.” 2
Am.L.Prod.Liab.
3d § 31:26 (footnotes omitted).
See also,
Restatement (Third)
of Torts:
Products Liability, § 3, cmt. c and d [1998] (“The inference
of defect may be drawn . . . without proof of the specific defect. . . . [T]he
plaintiff must establish by a preponderance of the evidence that the incident
was not solely the result of causal factors other than defect at the time of
sale. The defect need not be the only cause of the incident; if the plaintiff
can prove that the most likely explanation of the harm involves the causal
contribution of a product defect, the fact that there may be other concurrent
causes of the harm does not preclude liability[.]”)
We therefore
must consider whether the appellants in the instant case raised triable questions
of fact that the products at issue _ the Toyota Camry and the Honeywell alarm
system _ were not reasonably safe for their intended use. We must assess whether
the Bennetts introduced evidence with the capacity to sway the outcome of the
litigation such that a jury could surmise that the fire, and the subsequent total
destruction of the house, resulted from a malfunction in the Toyota Camry and
the Honeywell alarm system; that there was no misuse of either product; and that
there was no reasonable secondary cause for either malfunction, thus permitting
a jury to find that it was more probable than not that either product was defective
and a contributing cause of the appellants' loss.
After
examining the record, we find sufficient evidence such that a reasonable juror
could infer that the fire started in the Toyota Camry as a result of a malfunction,
and that the fire would not have ordinarily happened in the absence of a defect.
The Bennetts' expert testified that it was his opinion that a defect in the wiring
system existed in the Camry, a defect which was the ultimate cause of the fire.
Due to the destruction of the Camry, the
expert was not able to identify the precise defect in question. Still, the
record indicates that the Bennetts introduced sufficient evidence for jurors
to conclude that the Camry was regularly maintained and serviced, was not previously
exposed to neglect, abuse or abnormal use, and, most importantly, was not being
misused at the time the fire started. Sufficient evidence was also offered
such that jurors could exclude other reasonable secondary causes for the fire.
For instance, an expert hired by Ohio Farmers and Westfield acknowledged that
items such as a gasoline can and gasoline-powered equipment located in the
garage lacked an ignition source and could not have been an independent cause
of the fire. Expert testimony in the record also permits an inference that
other reasonable alternative causes for the fire could be ruled out: the fact
that Mrs. Bennett turned on the lights in the garage suggested that the electrical
wiring was not a source, photographs of the fire scene ruled out other items
or vehicles in the garage as the source of the fire, and the burn pattern and
main collapse of the garage support the location of the Camry as being the
origin of the fire. Accordingly, a genuine issue of material fact clearly exists
regarding whether or not a defect in the wiring system caused the Camry to
catch on fire.
The Honeywell
defendants contend that summary judgment was properly granted because there was
no evidence that the components of the alarm system installed in the Bennetts'
home were defective when they left Honeywell's control. However, “the general
test for establishing strict liability in tort is whether the involved product
is defective in the sense that it is not reasonably safe for its intended use.” Syllabus
Point 4,
Morningstar,
162 W.Va. 857, 253 S.E.2d 666 (1979). We
must therefore consider whether
the Bennetts offered sufficient evidence _ circumstantial or otherwise _ to
create a triable issue of fact regarding whether the alarm system components
were not reasonably safe for their intended use.
After
careful consideration of the record, we find that material questions of fact
exist regarding whether the Honeywell alarm system malfunctioned as a result
of a defect, and was therefore not reasonably safe for its intended use. The
record suggests that the fire was burning in the garage for at least twenty to
thirty minutes before the Bennetts woke up. The Bennetts' expert testified that
the alarm system should have offered immediate detection of either smoke or heat
from the fire, and alerted the Bennetts to the fire in less than one minute based
upon the proximity of the heat detectors to where the fire started. Furthermore,
the alarm system should have alerted the monitoring company, ASCO Services, of
the fire. The record suggests that the alarm system did not alert the Bennetts
and never issued any type of warning, aural or visual, throughout the night of
the fire. Rather, it was a battery- operated alarm which the Bennetts installed
independently that issued warnings. Only after the Bennetts discovered the fire
did they receive a telephone call from an ASCO Services employee asking if the
Bennetts were having a problem.
The Honeywell
defendants assert that, even if its alarm system malfunctioned and failed to
operate as intended, the Bennetts should not be allowed to circumstantially prove
the existence of a product defect because they cannot rule out all possible secondary
causes of the alleged malfunction. The Bennetts, however, maintain that they
purchased an alarm system using Honeywell products and parts, and that the alarm
system did not activate
on the night of the fire _ thereby permitting what should have been discovered
as a small fire in their garage to rage out of control and totally destroy
their home. Furthermore, the alarm system did not detect any malfunction prior
to the fire, as it was designed to do, and notify the homeowners that the system
needed maintenance or repair.
The Bennetts
are not required under Anderson to eliminate all other possible causes,
or prove that the alleged defect was the only cause, of the malfunction in the
alarm system. They are only required to eliminate those causes which would prevent
a jury from finding that it was more probable than not that the alarm system
was defective. An expert for the Bennetts opined that the failure of the alarm
system was caused by a defect in the system or an installation and servicing
error by ASCO Services, or both. The Bennetts' evidence suggests that a malfunction
caused by a defect in the alarm system is a likely explanation for the destruction
of their home; they need not prove, under Anderson _ nor certainly under
Rule 56(c) at the summary judgment stage _ that it was the only explanation.
Accordingly, a genuine issue of material fact exists regarding whether or not
a defect in the alarm system caused the system not to activate.
Viewing
the record in a light most favorable to the appellants, we find that the circuit
court erred in granting summary judgment to both Toyota and the Honeywell defendants,
and we remand the case for further proceedings.
B.
Statute of Limitation _ Chemetronics
The circuit
court granted summary judgment dismissing the appellants' claims against Chemetronics,
filed on October 11, 2002, finding the claims were barred by the two- year statute
of limitation.
See W.Va. Code, 55-2-12. The Bennetts claim that
they filed an amended complaint immediately upon discovering in October 2001
that Chemetronics manufactured the heat sensors used in the fire alarm system
and acted reasonably and timely, based upon information that they knew or reasonably
should have known at relevant times. Chemetronics asserts that the Bennetts reasonably
knew or should have known by June 2000 of Chemetronics' potential liability,
and that the October 2002 complaint was not timely.
We discussed
in
Keesecker v. Bird,
200 W.Va. 667, 682, 490 S.E.2d 754, 769 (1997),
that there are four steps to determining if a claim is barred by the statute
of limitation. The first step in analyzing any statute of limitation question
is to determine the applicable statute. In this case,
W.Va. Code, 55-2-12
mandated
an action for the injury be filed within two years.
“The
second step in evaluating a statute of limitation question is to establish when
the requisite elements of the alleged tort occurred, such that the cause of action
'accrued'.”
Keesecker,
200 W.Va. at 683, 490 S.E.2d at 770.
In this case, the cause of action “accrued” on the night of the fire,
March 25, 1998.
“The
next step is to determine whether the plaintiff is entitled to the benefit of
the ameliorative effects of the discovery rule.”
Id. The discovery
rule tolls the statute of limitation until the claimant knows or by the exercise
of reasonable diligence should know of his claim. Whether the discovery rule
applies is determined, in tort actions, by the
application of Syllabus Point 4 of
Gaither v. City Hospital, Inc.,
199
W.Va. 706, 487 S.E.2d 901 (1997).
(See
footnote 4) We stated that “this rule tolls the statute of
limitations until a plaintiff, acting as a reasonable, diligent person, discovers
the essential elements of a possible cause of action, that is, discovers duty,
breach, causation and injury.”
Id., 199 W.Va. at 714, 487 S.E.2d
at 909. If the plaintiff is not entitled to the ameliorative effects of the
discovery rule, then “[t]he last step in the statute of limitations analysis
is to determine if the limitation period is tolled by some misconduct of the
defendant.”
Keesecker,
200 W.Va. at 684, 490 S.E.2d at 771.
(See
footnote 5)
The appellants
assert that they did not know the identity of the tortfeasor _ Chemetronics _
until October 2001, and therefore could not have brought suit until that identity
was discovered through reasonable diligence. However, applying the third and
fourth steps of Keesecker, it is clear that the Bennetts cannot benefit
from the discovery rule in their claims against Chemetronics. The record shows
that during discovery in June 2000, the Bennetts were given documents that
identified Chemetronics as being involved with the manufacture of the heat
sensors. The appellants' experts identified the heat sensors as a potential
source of the malfunction of the alarm system. The Bennetts therefore should
have reasonably known in June 2000 _ and not in October 2001 _ through due
diligence that Chemetronics was the manufacturer of the heat sensors, and that
the heat sensors may have malfunctioned and allowed the fire to destroy their
home. Moreover, there is nothing in the record to suggest misconduct on the
part of Chemetronics to conceal their identity or their misconduct. Therefore,
the appellants are not entitled to the protection of the discovery rule. We
would affirm the circuit court's order granting summary judgment in favor of
Chemetronics.
IV.
The circuit
court's two December 11, 2003 orders as to the Toyota and the Honeywell defendants
are reversed. The circuit court's December 11, 2003 order as to Chemetronics
is affirmed, and the case is remanded for proceedings consistent with this opinion.
Affirmed
in part, Reversed in part, and Remanded.
Footnote: 1