Friday, October 2, 2009
Moving for SJ based on Limitations as Affirmative Defense to Negligence Claim
WHEN IS A CASE OR CLAIM RIPE FOR DISPOSITION BY SUMMARY JUDGMENT?
Summary judgment is appropriate when there is no genuine issue as to any material fact and judgment should be granted in favor of the movant as a matter of law. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005) (citing KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999)).
DEFENDANT'S USE OF THE SUMMARY JUDGMENT PROCEDURE
Summary judgment may be granted on an affirmative defense. See Tex. R. Civ. P. 166a(c). A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense. Diversicare, 185 S.W.3d at 846 (citing KPMG Peat Marwick, 988 S.W.2d at 748)); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 220 (Tex. 2003).
APPLICABLE EVIDENTIARY STANDARD AND SHIFT IN THE BURDEN OF PROOF
A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982). If the movant establishes that the statute of limitations bars the action, the nonmovant must then present summary judgment evidence raising a fact issue in avoidance of the statute of limitations. Kang v. Hyundai Corp., 992 S.W.2d 499, 501 (Tex. App.-Dallas 1999, no pet.); Palmer v. Enserch Corp., 728 S.W.2d 431, 435-36 (Tex. App.-Austin 1987, writ ref'd n.r.e.).
PERSONAL INJURY CLAIMS: 2-YEAR SOL IN TEXAS
The statute of limitations expired before appellant filed suit against appellee. The limitations period for this cause of action was two years from the accrual of the cause. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon Supp. 2008) (providing a two-year limitations period for personal injury claims).
Summary Judgment Based on the Statute of Limitations Was Proper Where Negligence Claim Based on Accident Accrued More Than 2 Years Prior to Date Amended Petition Named Additional Defendant (Movant)
In his response to appellee's motion for summary judgment and on appeal, appellant admits the motor vehicle accident occurred on April 15, 2006 and the statute of limitations applicable to a negligence cause of action that arose from the accident expired April 16, 2008. The record confirms on February 27, 2008, appellant filed suit against Insurance Depot, Inc. and on July 22, 2008, appellant filed his amended petition including the negligence claim against the newly- named appellee. We conclude that appellee established its defense of limitations as a matter of law, and the summary judgment in favor of appellee was proper in this case.
SOURCE: 05-09-00183-CV (Dallas Court of Appeals) (10/1/09)