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Branstad v. Kinstler7/5/2005
he loss of his cattle, were not capable of ascertainment until coverage was denied by Shelter. Because Mr. Branstad was entitled to rely on Mr. Kinstler's representations concerning coverage under the Shelter policy, he had no way of knowing on the day the cattle died that the landowner was not insured for the loss. Thus, Mr. Branstad's cause of action against Mr. Kinstler for negligent misrepresentation regarding coverage under the Shelter policy accrued when Mr. Branstad received notice that coverage was denied and, thus, he was able to determine that he had sustained damage.
The record is unclear, however, when Mr. Branstad was notified that Shelter would not pay the claim. The only certain date in the record regarding the denial of coverage is February 18, 1999, the day the Circuit Court of Randolph County entered declaratory judgment in favor of Shelter, which was within the five-year period of limitations. The burden of establishing the affirmative defense of statute of limitations lies with the party who asserts it. Nuspl, 842 S.W.2d at 923 . Because Mr. Kinstler failed to prove that Shelter denied coverage for the loss of Mr. Branstad's cattle more than five years before Mr. Branstad filed suit, his statute of limitations defense fails. The trial court's judgment dismissing Mr. Branstad's petition is reversed, and the case is remanded for further proceedings.
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