Rawson et. al. v. State of Vermont et. al., No. 14- 1-13 Wrcv (Teachout, J. Mar. 27, 2014).

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the
accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Windsor Unit Docket No. 14-1-13 Wrcv

KENNETH P. RAWSON and VALERIE RAWSON,

Plaintiffs,

v.

STATE OF VERMONT,

STATE OF VERMONT AGENCY OF TRANSPORTATION, DALE R. NORTON, JOHN DOE, and

KUBRICKY CONSTRUCTION CORPORATION,

Defendants.

DECISION

Defendant Kubricky Construction Corporation’s Motion For Summary Judgment

This matter is before the court on the Motion for S ummary Judgment filed November 5, 2013 by Kubricky Construction Corporati on (“Kubricky”). Plaintiffs are represented by Attorney Arend R. Tensen. Defendant Kubricky is represented by Attorney Daniel L. Burchard. Oral argument on the motion was heard on March 11,

2014.

FACTS

In this personal injury case, Kenneth P. Rawson, a truck driver, claims he was injured while making a delivery of bridging equipme nt to a construction site in Addison, Vermont, where the State of Vermont was constructin g a new bridge between Vermont and New York. He alleges that when he arrived to u nload, he climbed up onto his flatbed truck to pull the straps off so that the load could be removed off the flatbed by a loader. He further alleges that while he was still on the f latbed, the loader operator began lifting the load, which swung and hit him, causing him to f all backward off his flatbed and he fell on the ground below and was injured. He unders tood that he was making the delivery

to the State of Vermont. The Load Information Shee t described the destination as “Vermont AOT.” He alleges that the Bill of Lading was signed for by the loader operator. The Bill of Lading was signed by Dale No rton on behalf of Vermont AOT.2 As a result of this incident, which occurred on Jan uary 11, 2010, Plaintiffs 1 filed a Complaint against the State of Vermont, the State o f Vermont Agency of Transportation, Dale R. Norton, and John Doe (a possible unidentifi ed loader operator) (collectively, “Vermont Defendants”) on January 4, 2013, one week before the expiration of the applicable three year statute of limitations period . It is undisputed that at the time of filing the complaint, Plaintiffs had no knowledge t hat Kubricky Construction Corporation had any role at the job site.

On May 1, 2013, Vermont Defendants filed a third-pa rty complaint against Kubricky calling upon Kubricky to defend and indemn ify the Vermont Defendants under a construction contract between them for work perfo rmed by Kubricky for the State at the bridge site. Thereafter, on June 4, 2013, Plaintif fs amended their complaint, naming Kubricky as a defendant and alleging that it was al so liable to Plaintiffs. Vermont Defendants then withdrew their third-party complain t on July 24, 2013. Kubricky’s facts are that it had no knowledge of the incident in whi ch Mr. Rawson was injured until February 15, 2013, when it received information abo ut the incident from the Vermont Attorney General’s office as a result of the filing of the lawsuit.

Kubricky has moved for summary judgment, asserting that Plaintiffs’ claim against Kubricky is time-barred because Plaintiffs failed to commence an action against Kubricky within three years of the date that Plaint iffs’ cause of action accrued. Plaintiffs oppose the motion on the grounds that a genuine iss ue of material fact exists as to

whether Plaintiffs’ cause of action accrued on the date of Mr. Rawson’s injury or accrued at a later date when Plaintiffs reasonably should h ave discovered that they had a claim against Kubricky. Kubricky argues that Plaintiffs should have discovered the identity of the loader operator, but instead did nothing to ide ntify that person during the three-year statute of limitations period. Kubricky argues tha t it was unreasonable as a matter of law for Plaintiffs to make no attempt to discover Kubri cky’s identity during the three-year period. Plaintiffs counter that they had no reason to search for Kubricky because Mr. Rawson never knew of Kubricky’s existence and saw a nd interacted only with state employees at the jobsite where he was injured.

ANALYSIS

To prevail on a motion for summary judgment, a mov ant must demonstrate “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a). In ruling on a motion for summary judgment, the court will take “all allegations made by the nonmov ing party as true.” Richart v.

Jackson , 171 Vt. 94, 97 (2000). Thus, Plaintiffs are enti tled to have all reasonable doubts

and inferences resolved in their favor.

For personal injury actions, the statute of limita tions is three years. 12 V.S.A. § 512. It is undisputed that Plaintiffs filed their initial complaint within the three-year statute of limitations, but filed their amended com plaint, which first-named Kubricky as a defendant, beyond the statute of limitations period

.

1 Mr. Rawson’s wife, Valerie Rawson, makes a claim f or loss of consortium.3 Generally, a statute of limitations does not begin “to run until the plaintiff has discovered his ‘legal injury,’ such that the statut e begins to run only when the plaintiff has or should have discovered both the injury and the fact that it may have been caused by the defendant’s negligence or other breach of du ty

. ” Lillicrap v. Martin , 156 Vt. 165, 175 (1989) (emphasis added). To establish when a p laintiff’s “legal injury” occurred, it must be determined “at what point a plaintiff had i nformation, or should have obtained information, sufficient to put a reasonable person on notice that a particular defendant may have been liable for the plaintiff’s injuries.” Rodrigue v. VALCO Enterprises, Inc.

, 169 Vt. 539, 541 (1999).

Kubricky’s argument that it is entitled to summary judgment because it was

unaware of Mr. Rawson’s accident or this lawsuit un til February 13, 2013 must fail. The

issue of its awareness of this action would be rele vant if this situation fell under V.R.C.P. 15 (c), and Plaintiffs were attempting to amend the ir pleadings because they had mistakenly named the wrong party and were seeking r elation back to the original date of filing. Here, however, the question is when Plaint iffs’ cause of action against Kubricky accrued. Whether Kubricky knew of the incident is not relevant on that issue.

Kubricky’s argument that it was unreasonable as a matter of law for Plaintiffs to fail to identify the loader operator during the sta tute of limitations period must also fail. In determining when a cause of action accrues, the appropriate question is when a reasonable person would have discovered a potential defendant, not whether a particular plaintiff acted reasonably or unreasonably. The an swer to this question requires findings of fact about when a reasonable person would have m ade the discovery, taking into

account all reasonable inferences from the circumst ances. This must be done by the trier of fact, which in this case is the jury. When Plai ntiffs should have discovered that Kubricky was a potential defendant is a disputed qu estion of material fact. See Lillicrap

, 156 Vt. at 172 (“The question of when the injury wa s or reasonably should have been discovered is one of fact to be determined by the j ury.” (internal quotation omitted)).

Reasonable inferences favorable to Plaintiffs are sufficient to put in dispute the material fact of when a reasonable person would hav e made the discovery of the role of Kubricky on the job site. See In re Lowry , 2013 VT 85, ¶ 10 (noting that a trial is “absolutely necessary where there is a genuine issu e as to any material fact.”). Accordingly, Kubricky’s motion must be denied.

ORDER

Kubricky’s Motion for Summary Judgment is hereby denied

.

Dated at Woodstock, Vermont, this 26th day of March , 2014.

Honorable Mary Miles Teachout Superior Court Judge