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GOLDSMITH v. LEARJET5/31/1996
The opinion of the court was delivered by
This case involves conflicts law and statutes of limitations. Heirs and representatives of the estate of Harold Goldsmith, who was killed in the crash of a Learjet aircraft in Colorado, seek wrongful death and survival damages. They filed a timely petition in state court in Kansas and voluntarily dismissed it more than 2 years after Goldsmith's death. Within 6 months of the dismissal, they refiled in United States District Court, claiming diversity jurisdiction. On the ground that the diversity action was time barred by Colorado's statute of limitations, summary judgment was entered against them by the United States District Court for the District of Kansas. An appeal was taken.
This case is before us on questions certified by the United States Court of Appeals for the Tenth Circuit under the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. Following the filing of briefs and oral argument, Circuit Judge David M. Ebel certified to this court the following questions:
1. Whether the Kansas borrowing statute, K.S.A. 60-516, borrows the foreign state's saving statute so as to preempt the Kansas saving statute.
2. Whether the Kansas saving statute, K.S.A. 60-518, saves wrongful death actions.
3. Whether the Kansas saving statute saves actions that the Kansas borrowing statute otherwise would bar.
The facts are set out in the certification order as follows:
"On February 13, 1991, a Learjet aircraft crashed during landing near Aspen Colorado, killing everyone aboard including Harold Goldsmith (the `decedent'). Representatives of decedent's estate filed a survival action against Learjet in Kansas state court on February 11, 1993 (the `first action'), captioned Berkowitz v. Learjet, No. 93C55. The plaintiffs voluntarily dismissed that action on June 9, 1993. These representatives, along with the decedent's wife and three children, then brought a diversity action on November 30, 1993, in U.S. District Court for the District of Kansas, seeking wrongful death and survival damages (the `second action'). This Certification arises out of the second action. None of the plaintiffs are Kansas residents. Learjet's principal place of business is in Kansas.
"Learjet filed a summary judgment motion, arguing that the second action was untimely under the statutes of limitations of both Kansas and Colorado, both of which limit the period when a party may bring a wrongful death action to two years. Kan. Stat. Ann. § 60-513(5); Colo. Rev. Stat. § 13-80-102. In response plaintiffs argued that the Kansas saving statute, Kan. Stat. Ann. § 60-518, extended
the time within which they could bring the second action. The Kansas saving statute provides that when an action is dismissed for a reason other than the merits after the statute of limitations lapses, the plaintiff may commence a new action within six months from the dismissal. Id.
"Learjet responded that the Kansas borrowing statute, Kan. Stat. Ann. § 60-516, nonetheless prevented plaintiffs from maintaining the second action regardless of the saving statute. The borrowing statute bars a resident of a state other than Kansas from maintaining an action in Kansas when the laws of the state where the cause of action arose would bar the same action. Id. Here, the cause of action arises in Colorado and Colorado law would have barred plaintiffs from bringing an action in Colorado at the time they brought the second action in Kansas. Colorado's savings statute extends the Colorado statute of limitations only ninety da
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