George W. Hamner, Jr. v. Bmy Combat Systems, a Division of Harsco Corporation, a Delaware Corporation, and Stewart-Warner South Wind Corporation, a Delaware Corporation
Docket: 94-3430
Court: Court of Appeals for the Tenth Circuit; February 25, 1996; Federal Appellate Court
Unpublished opinions may be cited if they hold persuasive value on material issues, provided a copy is attached or furnished to the Court and parties, as per the General Order of November 29, 1993. In the case of George W. Hamner, Jr. v. BMY Combat Systems and Stewart-Warner South Wind Corporation, the plaintiff, who served in the U.S. Army, was injured on November 9, 1988, while in an armored vehicle with a heater designed by the defendants. After his honorable discharge on July 20, 1992, he filed a lawsuit on July 21, 1994, alleging negligence, strict liability, breach of implied warranty, and fraudulent concealment. The defendants moved to dismiss, claiming the lawsuit was time-barred, and the district court agreed, leading to the plaintiff's appeal.
The appellate court reviews the dismissal de novo, including the statute of limitations applicability, which is governed by Kansas law. The relevant statute, K.S.A. 60-513(a)(4), imposes a two-year limit on the claims. The court also recognizes that K.S.A. 60-206(a) governs the computation of statutes of limitations, stating that the day of the event does not count in the calculation. Since the injury occurred on November 9, 1988, the lawsuit would typically need to be filed by November 9, 1990. However, the plaintiff's military service may affect the limitations period under federal law.
The Soldiers' and Sailors' Civil Relief Act of 1940 prevents periods of military service from counting towards the statute of limitations for legal actions involving service members. Specifically, the Act defines "period of military service" as starting from the date of entry into active service and ending at release from active service. In this case, the plaintiff's discharge date of July 20, 1992, was agreed upon and excluded from the statute of limitations calculation. The plaintiff argued that the two-year limitations period began on July 21, 1992, making his lawsuit timely when filed on July 21, 1994. However, the district court, referencing State ex rel. Quinn v. Johnson, determined that the relevant "event" for the limitations period was the date of the accident, not the discharge date. The court concluded that since the limitations period does not include the date of the accident, it started on July 21, 1992, meaning the lawsuit was required to be filed by July 20, 1994. Consequently, the court found the plaintiff's filing on July 21, 1994, to be untimely and rejected the plaintiff's assertion that his discharge should be considered the event triggering the statute of limitations. The district court emphasized that July 21, 1992, was merely the first day the limitations period began post-tolling, with no legal event triggering the statute on that day.
The two-year statute of limitations for personal injury claims under Kansas law was triggered by the plaintiff's accident. However, the statute was tolled under 50 U.S.C.App. 525 due to the plaintiff's military service, meaning it did not begin to run until his discharge on March 6, 1946. Consequently, any action filed for personal injuries was barred after March 6, 1948. While the case of Linard v. Pennsylvania R. Co. provided a similar conclusion, the court acknowledged that the plaintiff's claim was filed only one day late, making the ruling appear harsh but still binding. The district court's judgment was affirmed, with the opinion that the plaintiff's fraudulent concealment claim also failed under Kansas law, a conclusion the plaintiff did not appeal. The order is not considered binding precedent except under specific legal doctrines. The court generally discourages citation of such orders, but allows it under certain conditions.
