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Law Offices of Steven D. Smith v. Borg-Warner Security Corp.12/23/1999
cts from those economic losses which arise from lost economic opportunities, as Smith argues, would serve little purpose. Such a distinction implies that the tort of intentional interference with contractual relations is governed by the six-year statute, while the closely related tort of intentional interference with prospective economic advantage is governed by the two-year statute. It is difficult to think of any reason why the legislature would have intended such a result.
Second, reading the phrase "not arising from contract" to modify "an action" suggests that AS 09.10.070 distinguishes contract from non-contract actions. Such a reading is consistent with the fact that contract actions are expressly covered under the six-year statute. Thus AS 09.10.070 reinforces the legislative intent expressed in AS 09.10.050(1) that contract actions are governed by the six-year statute.
Smith's textual argument concerning AS 09.10.050 interprets the term "personal property" used in the phrase "for taking, detaining, or injuring personal property" to include economic loss. We reject this interpretation and believe that "personal property" as used in AS 09.10.050(3) refers to tangible property. We stated in Kodiak Electric Association v. Delaval Turbine, Inc. "that the phrase 'injuring personal property' incorporates actions for injury to tangible personal property." In so doing, we noted that we need not decide "the exact parameters of the types of actions encompassed within 'injuring personal property.'" Subsequent to Delaval we have decided a number of tort cases -- as distinct from cases which might be said to arise either in tort or in contract -- involving economic loss, and have not held that economic loss was encompassed within the "injuring personal property" language of AS 09.10.050(3).
Smith's argument based on Lee Houston and Breck is also unavailing. In those cases we held that claims arising out of professional service relationships which involved economic loss were governed by the six-year rather than the two-year statute. We noted that such claims might reasonably be said to arise either in tort or in contract and that in such circumstances the longer limitations period should be chosen. In the present case, there was no contractual relationship between Smith and Borg-Warner and thus no grounds exist for contending that Smith's claim is one based on an express or implied contractual obligation.
In his reply brief, Smith relies on McDowell v. State, in which we held that AS 09.10.050(2) applied to a claim for underground contamination of the plaintiff's real property by petroleum products. This holding has no important bearing on the present controversy as the McDowell claim concerned statutory "trespass upon real property."
Because the economic losses do not constitute "an action . . . arising on contract" for an injury to Smith's rights, we conclude that the two-year statute of limitations governs Smith's claims for economic loss.
D. Borg-Warner's Litigation Conduct Should Not Estop It from Asserting or Equitably Tolling the Statute of Limitations.
Smith's equitable arguments are plainly without merit.
1. Equitable estoppel
Borg-Warner correctly states that "Smith's equitable estoppel argument is a red herring." For a plaintiff to equitably estop a defendant from pleading the statute of limitations, the plaintiff must show that he or she relied on the defendant's fraud by either consciously relying on an affirmative misrepresentation, or failing to discover fraudulently concealed evidence.
The estate's success in estopping Borg-Warner from pleading the statute of limit
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