American Family Insurance v. Waupaca Elevator Co.
809 N.W.2d 337
| N.D. | 2012Background
- American Family sued Waupaca Elevator on December 30, 2010 for injuries to its apartment building from a 2004 elevator incident.
- American Family faxed summons/complaint to Outagamie County Sheriff's Department and mailed originals; sheriff acknowledged receipt the same day.
- Original documents were mailed to Larry Rice, an agent of Waupaca Elevator; sheriff personally served William McMichael on January 4, 2011.
- District court dismissed with prejudice, holding action untimely; court treated motion as summary judgment due to external matters.
- Appeal argues accrual and computation of the six-year statute of limitations, and proper service under N.D.C.C. § 28-01-38 and N.D.R.Civ.P. 4.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of accrual and start of statute | Accrual began December 31, 2004; six-year period ends December 30, 2010. | Accrual date December 30, 2004; limitations expired December 29, 2010 if counting from accrual. | Accrual occurs the day after injury; six-year period ends December 30, 2010. |
| Timely service under six-year window | Service on December 30, 2010 within six years under Rule 6(a) and § 28-01-38. | Service not completed until January 4, 2011; last day not satisfied. | Service on December 30, 2010 was timely; timely commencement achieved. |
| Effect of service method and out-of-state defense | Served via Outagamie County Sheriff's Department under § 28-01-38 and ND Civ. P. 4(d). | Contention that Wisconsin service or timing may affect timeliness; improper if not promptly served. | American Family properly served under § 28-01-38 and ND Civ. P. 4(d) (outside ND but service allowed). |
| Correct computation method under Rule 6(a) | Former Rule 6(a) excludes accrual date and includes last day unless holiday; thus Dec 30, 2010 is timely. | Argues different interpretation could render it untimely. | Former Rule 6(a) controls; December 30, 2010 is within the six-year window. |
Key Cases Cited
- Beaudoin v. South Texas Blood & Tissue Ctr., 2004 ND 49, 676 N.W.2d 103 (N.D. 2004) (valid service officer on executive office manager under ND Civ. P. 4(d)(2)(D)(i))
- Elliot v. Drayton Pub. Sch. Dist. No. 19, 406 N.W.2d 655 (N.D. 1987) (action commenced when writ delivered with intent to serve promptly)
- Long v. Jaszczak, 2004 ND 194, 688 N.W.2d 173 (N.D. 2004) (discovery rule for accrual; when applicable, accrual date language applies to Rule 6(a))
- Dundee Mut. Ins. Co. v. Balvitsch, 540 N.W.2d 609 (N.D. 1995) (statutes interpreted as a whole and harmonized with procedural rules)
- Erickson v. Scotsman, Inc., 456 N.W.2d 535 (N.D. 1990) (injury accrual in negligence actions; discovery rule context)
- Schanilec v. Grand Forks Clinic, Ltd., 1999 ND 165, 599 N.W.2d 253 (N.D. 1999) (recognizes discovery rule in certain malpractice contexts)