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Westfield Ins. Co. v. Huls Am.6/9/1998
hat they are beneficiaries of UAFs rights against appellee HULS, it follows that the statute of limitations governing Westfield's action is the same as that applied to any similar action that UAP could bring. A party in privity of contract with the defendant, as UAP is with HULS in the instant matter, may not bring a negligence action seeking purely economic damages against that defendant. Chemtrol, 42 Ohio St.3d at 49, 537 N.E.2d at 633-634. Therefore, any claim by UAP against HULS must be based upon some damage to person or property, as well as economic damage. Id. The Ohio Supreme court has held that suits "for [personal] property damage caused by an allegedly defective product * * * are controlled by the statute of limitations contained in R.C. 2305.10." Sun Refining & Marketing Co. v. Crosby Valve & Gage. Co. (1994), 68 Ohio St.3d 397, 398, 627 N.E.2d 552, 554.
Westfield's negligence claim is therefore also governed by the two-year statute of limitations set forth in R.C. 2305.10. See, also, McAuliffe v. W. States Import Co., Inc. (1995), 72 Ohio St.3d 534, 651 N.E.2d 957 (court held that because R.C. 2307.73, regarding compensatory damages in product liability actions, does not provide a cause of action against a successor corporation that would not exist but for the statute, causes of action brought pursuant to R.C 2307.73 are not governed by the six-year statute of limitations provided by R.C. 2305.07, but by the two-year statute of limitations provided by R.C. 2305.10). Pursuant to R.C. 2305.10, negligence actions such as appellants' must be brought within two years after the cause of action accrues. Lawyer's Cooperative, 65 Ohio St.3d at 277, 603 N.E.2d at 972-973. See, also, Lee v. Wright Tool & Forge Co. (1975), 48 Ohio App.2d 148, 2 O.O.3d 115, 356 N.E.2d 303; Venham v. Astrolite Alloys (1991), 73 Ohio App.3d 90, 596 N.E.2d 585.
Courts have held, for the purposes of the two-year limitation set forth in R.C. 2305.10:
"When [a cause of action] does not manifest itself immediately, the cause of action does not arise until the plaintiff knows or, by exercise of reasonable diligence should have known, that he had been injured by the conduct of the defendant * * *." O'Stricker v. Jim Walter Corp. (1983) 4 Ohio St.3d 84, 4 OBR 335, 447 N.E.2d 727, paragraph two of the syllabus.
If, as Westfield argues, the mall tenants had a right to be warned of the TROCAL defect based upon UAP's rights, their cause of action would have accrued when UAP's cause of action accrued. UAP's cause of action accrued on March 16, 1992, when they knew or should have known that the TROCAL roof system was defective. The time for bringing a suit for negligent failure to warn would therefore have expired two years later, on March 16, 1994. Westfield filed its action against appellee on January 13, 1995, or approximately ten months aftesthe time for bringing the suit had expired. The UAP appellants can be said to have filed their suits, at the earliest, on the same date as Westfield, or at the latest on the subsequent date that their third-party counterclaims were Med against HULS. Appellants' causes of action for failure to warn were filed after the statute of limitations for bringing such actions had expired. Therefore, the trial court did not err or abuse its discretion in dismissing Westfield's and UAP's negligence claims.
II. Also regarding appellants' "negligent failure to warn" claims, the record indicates that both Westfield and UAP have failed to provide support for their claim that HULS's failure to warn the Lane Avenue tenants or UAP of the TROCAL defect was the proximate cause of the injury . Mussivand, 45 Ohio St.3d at 318, 544 N.E.2d at 269-270.
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