 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Taylor v. Compex International Co.12/23/2004
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
Stephen and Laura Taylor appeal from an order of the Bell Circuit Court dismissing their product-liability claims against Compex International Co., Ltd. The Taylors argue that the trial court erred in finding that their negligence, strict liability and loss of consortium claims were untimely, and that they lacked privity of contract to assert a breach of implied warranty claim. Under the facts presented in this case, we agree with the trial court that the Taylors failed to file their tort claims within the limitations period. However, we also find that the warranty claim is not barred due to the Taylors' lack of privity with Compex. Hence, we affirm in part, reverse in part, and remand for further proceedings.
For purposes of this appeal, the underlying facts of this action as set out in the complaint are not in dispute. On July 14, 2001, Stephen and Laura Taylor were visiting with Stephen's parents in Bell County, Kentucky. As Stephen attempted to sit down, the chair broke, causing him to fall and sustain an injury . Stephen's parents had purchased the chair at a K-Mart store in Bell County, and the chair had been manufactured by Compex.
In late June 2002, the Taylors' counsel prepared a complaint naming Compex and K-Mart as defendants and asserting claims for strict product liability, negligence, breach of implied warranties and loss of consortium. The Taylors and their counsel signed the complaint on June 30, 2002, and counsel's checks for the filing fee and the secretary of state's fees are dated July 3, 2002. Furthermore, the Taylors' counsel states that he also mailed the complaint and the filing fee to the Bell Circuit Clerk on July 3.
However, the clerk's docket sheet does not show the complaint as filed until July 19, 2002, and the only complaint in the record is stamped as filed on January 2, 2003. The docket indicates that the summonses to K-Mart and to Compex also were issued to the Secretary of State's office on July 19. The summons as to K-Mart was received by the Secretary of State's office on July 23, 2002, but the Secretary of State's office returned the summons to Compex on August 29, 2002. A subsequent summons was issued on January 2, 2003, and received by the Secretary of State on January 6, 2003. Thereafter, Compex was served by warning order attorney on January 17.
By agreed order, the claims against K-Mart were dismissed without prejudice on April 11, 2003, due to K-Mart's pending bankruptcy . Compex filed its answer on April 22, 2003, asserting a statute of limitations defense to the negligence, strict liability and loss of consortium claims, and asserting that the warranty claims were barred due to a lack of privity between it and the Taylors. Compex filed its motion to dismiss based upon these defenses on December 2, 2003.
At the hearing on December 22, 2003, the Taylors presented an affidavit from their original counsel stating that he had mailed the complaint and the filing fee to the clerk on July 3, 2002. In addition, the trial court took judicial notice that the Bell Circuit Clerk's office had been in the process of moving into a new building during the first part of July 2002. Business in the clerk's office was suspended for approximately one week and the court had received anecdotal reports that a backlog had developed in the clerk's office at this time. Nevertheless, the court found that the Taylors had failed to file their action within the applicable limitations period. In a subsequent order, the trial court further found that the Taylors' claim for breach of warranty was barred due to their lack of privity with Compex. This appeal followed.
Page 1 2 3 Kentucky Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|