/Borrowing Statutes of Limitation
Borrowing Statutes of Limitation 2016-06-01T21:55:25+00:00


José M. Bautista, Esq.*


Grade crossing cases are difficult to evaluate. A plantiff’s lawyer must consider unusual issues such as preemption and “409” objections before accepting a grade crossing case. The complexity of the evaluation increases substantially where the litigation is or will be filed in a state other than the one where the crossing collision occurred. The lawyer then has to grapple with two sets of laws. Naturally, the first legal issue to determine is whether the case is time-barred. A borrowing statute comes into play when the statutes of limitation of the two states conflict.

Marian Kemp, et al. v. Kansas City Southern Railway Co., Case No. 03CV231382 (Circuit Court of Jackson County, Missouri, April 29, 2005), is an example of the operation of Missouri’s borrowing statutes of limitation. The case arose as a result of a freight train-motor vehicle collision at a railroad grade crossing located in Arcadia, Bienville Parish, Louisiana, on August 1, 2001. With her young daughters as passengers, Marian Kemp drove her 1997 Ford Explorer northbound on Maple Street. As Mrs. Kemp’s Explorer approached a crossing which was under construction and unprotected by any operating warning devices, a Kansas City Southern Railway Company (“KCS”) train quickly closed from the east. The train and car collided, crushing the car and the occupants. One of the girls was killed. The others suffered serious bodily injuries and brain damage, with Mrs. Kemp falling into a semi-comatose state.

On June 13, 2002, some of Marian Kemp’s family members filed suit against KCS and others for personal injury, survival and wrongful death on behalf of Mrs. Kemp and her daughters. The suit was filed in the Parish of Bienville, State of Louisiana. More than a year later, on November 7, 2003, Mrs. Kemp’s other family members filed the same claims against KCS on behalf of Marian and her daughters in Jackson County, Missouri. The Louisiana suit had never been dismissed, so both cases were active.

KCS filed its Motion to Dismiss Case as Barred by the Statutes of Limitation in the Missouri court. It was undisputed that the Missouri suit was filed before Missouri’s five-year statute of limitations for personal injury claims and three-year statute of limitations for survival and wrongful death claims had expired. The pivotal question was whether Louisiana law applied and time-barred the Missouri suit. KCS argued that Louisiana’s one-year statutes of limitation on personal injury, survival and wrongful death claims, by operation of the Missouri borrowing statute, Mo. Rev. Stat. § 516.190 (1939), barred and required dismissal of the Missouri suit. Plaintiffs disagreed, arguing that all applicable limitations periods were tolled at the time the Missouri suit was filed, and requested the Missouri court to deny the Motion.

A. Missouri’s borrowing statute has no preclusive effect when the claims are not “fully barred” by the laws of the sister state where the cause of action originated.

Generally, the purpose of a borrowing statute is to prevent a plaintiff from avoiding the statute of limitation of the state where the claim arose. Finnegan v. Squire Publishers, Inc., 765 S.W.2d 703, 705 (Mo. Ct. App. 1989). Section 516.190 of the Revised Missouri Statutes is Missouri’s borrowing statute. This section makes another state’s statute of limitation applicable when the cause of action “originates” in another state, but the cause of action is brought in Missouri. Thompson by Thompson v. Crawford, 833 S.W.2d 868 (Mo. 1992). In totality, § 516.190 reads: “Whenever a cause of action has been fully barred by the laws of the state, territory or county in which it originated, said bar shall be a complete defense to any action brought thereon, brought in any of the courts of this state.” A cause of action originates, or accrues, in the state where the alleged damages are sustained and capable of ascertainment. Thompson by Thompson, 833 S.W.2d at 871.

Where a statute of limitation is borrowed, it is taken with the originating state’s case law and companion statutes that interpret, apply, and restrict the statute of limitation. Devine v. Rook, 314 S.W.2d 932 (Mo. Ct. App. 1958). In Devine, a Missouri trial court borrowed not only the Kansas two-year statute of limitation for injuries to personal property, but also the companion Kansas tolling statute. Under Kan. Stat. Ann. § 60-309, the two-year limitations period for personal property claims was tolled until defendant reentered the state or otherwise revealed himself. If this provision was not applied, plaintiff’s suit would have been time-barred. After trial, the defendant appealed, complaining that the trial court erred in failing to dismiss the case. Devine, 314 S.W.2d at 932.

On appeal, the Devine Court held that the Kansas tolling statute, as well as the Kansas statute of limitation, was to be borrowed. As noted by the court: “When [a statute of limitations] is so borrowed, it is not wrenched bodily out of its own setting, but taken along with it are the correct decisions of its own state which interpret and apply it, and the companion statutes which limit and restrict its operation.” Id. at 935. Applying both statutes, the court concluded that the two-year limitations period applicable to plaintiff’s claims was suspended while defendant remained out of state, and plaintiff’s claims were timely filed under Kansas law. The plaintiff’s claims, therefore, were not “fully barred” in Kansas as required by § 516.190, because “an action will not by force of a ‘borrowing’ statute be barred where the fact is that action would not be barred in sister state in view of statutory tolling provisions which would there be called into operation.” Id. at 935. As such, the Devine Court held that § 516.190 did not preclude the claims from being filed in Missouri and affirmed the judgment. Id. at 936.

The Missouri Supreme Court approved the Devine ruling in Thompson by Thompson, going so far as quote the above passage. Thompson by Thompson, 833 S.W.2d at 872. The plaintiff in that case, a minor, argued that the Missouri statutes tolled his cause of action for the wrongful death of his mother until he was 21 years old and, as such, his cause of action was not time-barred by § 516.190 and the borrowed Tennessee statute of limitation. The court flatly rejected the argument, reasoning that the court must borrow the Tennessee tolling provisions and the interpretive Tennessee case law if it borrows the Tennessee statute of limitations. Because the Tennessee statutes did not toll the statute of limitations for minor plaintiffs under the Tennessee wrongful death statute, the Court held that Missouri courts should not toll the plaintiff’s cause of action. Thompson by Thompson, 833 S.W.2d at 872.

B. Louisiana’s statutes of limitation do not bar the filing of a second suit where the original suit is still pending.

Louisiana also has time limits on the filing of claims. In particular, personal injury, survival and wrongful death claims are governed by the limitation periods in La. Civ. Code art. 3492 (1983), La. Civ. Code art. 2315.1 (1986), and La. Civ. Code art. 2315.2 (1986), respectively. These statutes of limitations provide that plaintiffs have one year from the date the injury is sustained or death occurs to file the above claims.

Articles 3942, 2315.1 and 2315.2 may be “interrupted.” See, e.g., Tureaud v. Acadiana Nursing Home, 696 So.2d 15 (La. App. 3 Cir. 1997) (holding that filing of suit interrupted limitation period for survival and wrongful death actions) and Levy v. Stelly, 277 So.2d 194 (La. App. 4Cir. 1974) (holding that filing of suit interrupted limitation period for tort claims arising from car accident). Interruption will occur under several sets of circumstances, the most notable of which is the filing of suit. La. Civ. Code. art. 3463 (1982). Once interruption begins, say with the filing of suit, interruption continues during the pendency of the suit. Id. Article 3463 reads:

An interruption of prescription resulting from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. Interruption is considered never to have occurred if the plaintiff abandons, voluntarily dismisses the action at any time either before the defendant has made any appearance of record or thereafter, or fails to prosecute the suit at the trial. Note that interruption is slightly different from tolling; the limitation period will start over, or “run anew” on the last day of interruption, whereas tolling merely suspends the limitations period. La. Civ. Code art. 3466 (1982).

The case of Levy v. Stelly illustrates how interruption and the above articles work. 277 So.2d. at 194. Levy involved a tort action to recover for personal injuries sustained in an automobile accident. The accident giving rise to the action occurred in January, 1997. Plaintiff filed suit within a year, in September, 1997, in Jefferson Parish, Louisiana. He then filed another suit in federal court more than a year after the accident, in late 1998, while the first suit was still pending. Afterward, the state suit was set for trial. Plaintiff sought an indefinite continuance from the state, preferring to try the matter in federal court. When he refused an offer of three weeks from the state court, the state court dismissed the case without prejudice. Id.

After attempting to have the dismissal reviewed and achieving only a denial of certiorari, plaintiff refiled the suit in state court. Id. The state court dismissed the suit again, this time as time-barred, because of the mandate (presently codified in article 3463) that “interruption is never considered to have occurred if plaintiff abandons, voluntary dismisses the action . . . or fails to prosecute the suit at the trial.” Plaintiff appealed the state court’s actions, arguing that the original filing of the state suit interrupted the limitations period and that the federal suit, filed before the original suit was dismissed and still pending at the time of the refiling of the state suit, continued the interruption for the refiling. The interruption, argued the plaintiff, never stopped. The Levy Court agreed and reinstated the suit, stating:

. . . in the case where a second suit is filed Prior to abandonment, voluntary dismissal or failure to prosecute the original demand, the interruption provided by the first suit is still viable at the time of the filing of the second suit, and the interruption remains viable after the dismissal because of the pendency of the second suit. In the present case there was never a time after the one year anniversary date of the accident when a suit asserting plaintiff’s cause of action against defendants was not pending in some court.

Id. at 196. The state trial court thus erred in dismissing the refiled state suit as time-barred. The judgment was reversed, and the case remanded for a trial on the merits. Id.

The Tureaud case provides an example of interruption as it relates to wrongful death and survival claims. 696 So.2d at 15. In Tureaud, the daughter of a deceased nursing home resident timely filed wrongful death and survival actions against a nursing home. The grandchildren of decedent, who were plaintiff’s niece and nephew, filed the same causes of action while the daughter’s suit was still pending more than one year after decedent’s death. The trial court ruled that the new causes of action were time-barred and dismissed those claims. The Tureaud Court, however, held that the limitations period for the dismissed causes of action had been interrupted by the daughter’s timely filed suit and that the interruption continued while the latter suit was pending. Id. at 17-18. As the decedent’s niece and nephew filed their causes of action during the interruption, their claims were not barred by the statutes of limitations for wrongful death and survival actions, articles 2315.1 and 2315.2. Id. The ureaud Court consequently reversed the dismissals. Id. at 19.

C. Missouri’s borrowing statute did not bar the Kemps’ causes of action because the borrowing statute requires the causes of action to be “fully barred” in the originating state, and the causes of action were not barred in Louisiana.

These principles demonstrated that Missouri’s Borrowing Statute did not bar the Kemps’ personal injury, survival and wrongful death claims. Under § 516.190, Louisiana’s statutes of limitation would be borrowed, as Louisiana would be the originating state, or the state where the accident occurred and plaintiffs’ damages were ascertained. Thompson by Thompson, 833 S.W.2d at 871. The Louisiana statutes of limitations for those types of claims, articles 3942, 2315.1, and 2315.2, provide that such claims would be barred after a year from the date of the accident.

This would have barred the Kemps’ claims after August 2, 2002, were the analysis to end there. Section 516.190, however, also requires that borrowed statutes of limitation be taken and used with the originating state’s case law and companion statutes that interpret, apply and restrict the statutes of limitation. Thompson by Thompson, 833 S.W.2d at 872. This meant that articles 3463 and 3466 (“interrupting” companion statutes in Louisiana), needed to be considered and followed as well.

According to those articles, the one-year limitation periods were interrupted when the Kemps filed the Louisiana suit within a year of the accident, on June 13, 2002, and continued while the Louisiana suit was pending. Since KCS refused to be dismissed from the Louisiana case (for very particular strategic reasons we would later discover), the interruption of the Louisiana limitation periods was indefinitely prolonged. Had the dismissal occurred, the Kemps would have possessed an additional year to file the claims as limitation periods “run anew” under interruption principles.

Because the Louisiana suit was still pending on November 7, 2003, the date the Kemps filed the Missouri suit, the Missouri suit was timely filed and not barred by the one-year Louisiana statutes of limitation. And because the suit was not barred in the originating state, the suit was not barred under § 516.190. KCS’ Motion was thus denied by the Missouri court without hearing.

Not every case is filed in a different state where the crossing collision occurred. But it happens, and the option should be considered by a lawyer evaluating a grade crossing case. Every venue has its advantages, and at times several trial courts possess both the subject matter jurisdiction to preside over the case and the personal jurisdiction over the railroad operating in their state. Just remember to look not only at the relevant statutes of limitations, but also the borrowing statute of the forum state. The railroad will file plenty of dispositive motions, and you can (at least) worry less about the one on blowing the statute if you do your research.

* José is a former Chair of the Railroad Law Section of the American Association of Justice (AAJ) and a partner at Bautista LeRoy LLC in Kansas City, Missouri. This article was originally published in AAJ Railroad Law Section, Vol 16, No. 3, Spring 2009.