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Moore v. Michelin Tire Co.12/15/1999
South Dakota Supreme Court Appeal from the Sixth Judicial Circuit, Lyman County, SD Hon. Kathleen F. Trandahl, Judge
Affirmed
Argued Oct 18, 1999; Opinion Filed Dec 15, 1999
[ ] Plaintiffs Scott and Beth Moore (Moore) appeal the dismissal of their products liability action against Defendants Ford Motor Company, General Motors Corporation, Chrysler Company, and Hayes Wheel International (Auto Manufacturers), granted on the basis of the running of the statute of limitation. Moore also appeals the trial court's denial of his motion to return this action to the original trial court judge. Defendants Michelin Tire Company, Inc. (Michelin) and Iverson Max Motor Company (Iverson Max) appeal the trial court's decision to grant reconsideration and reversal of its previous bench ruling dismissing this action for lack of prosecution. The matters were consolidated in this appeal. We affirm.
FACTS AND PROCEDURE
[ ] On April 30, 1992, in Kennebec, South Dakota, a tire unexpectedly exploded as Scott Moore was attempting to rotate it from one wheel to another on a recently purchased van. The explosion was caused by what is termed a tire/rim "mismatch." Unknowingly, Moore had attempted to mount a 16-inch tire on a 16.5 inch rim. As a result of the explosion, Moore's arms were broken and his nose was torn from his face. Doctors were able to refashion a nose for Moore with skin taken from his forehead. Moore underwent other extensive surgeries as a result of the accident, and incurred medical expenses of approximately $30,000.
[ ] In April of 1995, Moore filed a products liability action in the Sixth Judicial Circuit, Lyman County, South Dakota. Moore claims at the time he filed this action, the only defendants known to him were the tire manufacturer, Michelin and the automobile dealer who sold the van, Iverson Max.
[ ] The original complaint was filed by attorney David Larson. In May 1995, attorney Steve Fox, Larson's partner, who was to be local counsel responsible for Moore's case, asked attorney Thomas Dasse for assistance. Dasse practices law in Scottsdale, Arizona, and devotes a major portion of his law practice to representing plaintiffs in tire /wheel cases similar to Moore's. On June 23, 1995, Dasse contacted Eric Holtzman, the national counsel for Michelin, and advised him of his involvement in the Moore's case. Dasse and Holtzman had previously been opposing counsel in similar lawsuits.
[ ] It is difficult to identify the parties responsible for the manufacture and distribution of an automobile wheel. Unlike tires , where the name of the manufacturer is visibly stamped on the sidewall, the only marking visible on the wheel is a small code number stamped into the metal. It is for this reason at the time Moore filed his complaint; he did not know who had made the wheel or the type of vehicle on which it was included as original equipment. The wheel was not part of the original equipment of the van, but had been included in the sale to Moore as a bonus. Moore included in his complaint as a defendant a "Doe company" (a fictitious name) to represent the wheel manufacturer not yet identified.
[ ] Because of the difficulty identifying the automaker that put the rim into circulation, Dasse felt discovery should be put on an indefinite hold until that identity could be learned and joined in the case. According to Dasse's affidavit, he spoke with Holtzman on September 29 and October 5, 1995, and explained Moore intended to amend his complaint. According to Dasse, Holtzman agreed Moore and Michelin would cease proceeding on the case pending the amendment of the pleadings to add the rim and vehicle manufacturers as
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