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 unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court 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 Summary Judgment filed
November 5, 2013 by Kubricky Construction Corporation (“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 equipment to a construction site in Addison,
Vermont, where the State of Vermont was constructing a new bridge between Vermont
and New York. He alleges that when he arrived to unload, 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 flatbed, the loader operator began lifting
the load, which swung and hit him, causing him to fall backward off his flatbed and he
fell on the ground below and was injured. He understood that he was making the delivery
to the State of Vermont. The Load Information Sheet 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 Norton on behalf of Vermont AOT.
         As a result of this incident, which occurred on January 11, 2010, Plaintiffs1 filed a
Complaint against the State of Vermont, the State of Vermont Agency of Transportation,
Dale R. Norton, and John Doe (a possible unidentified 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 that Kubricky Construction Corporation
had any role at the job site.

        On May 1, 2013, Vermont Defendants filed a third-party complaint against
Kubricky calling upon Kubricky to defend and indemnify the Vermont Defendants under
a construction contract between them for work performed by Kubricky for the State at the
bridge site. Thereafter, on June 4, 2013, Plaintiffs amended their complaint, naming
Kubricky as a defendant and alleging that it was also liable to Plaintiffs. Vermont
Defendants then withdrew their third-party complaint on July 24, 2013. Kubricky’s facts
are that it had no knowledge of the incident in which Mr. Rawson was injured until
February 15, 2013, when it received information about 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 Plaintiffs’ cause of action accrued. Plaintiffs
oppose the motion on the grounds that a genuine issue 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 have 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 identify that person during the three-year
statute of limitations period. Kubricky argues that it was unreasonable as a matter of law
for Plaintiffs to make no attempt to discover Kubricky’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 and interacted only with state
employees at the jobsite where he was injured.

                                             ANALYSIS

        To prevail on a motion for summary judgment, a movant 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 nonmoving party as true.” Richart v.
Jackson, 171 Vt. 94, 97 (2000). Thus, Plaintiffs are entitled to have all reasonable doubts
and inferences resolved in their favor.

        For personal injury actions, the statute of limitations 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 complaint, which first-named Kubricky as a
defendant, beyond the statute of limitations period.

1   Mr. Rawson’s wife, Valerie Rawson, makes a claim for loss of consortium.

                                                    2
        Generally, a statute of limitations does not begin “to run until the plaintiff has
discovered his ‘legal injury,’ such that the statute 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 duty.” Lillicrap v. Martin, 156 Vt. 165,
175 (1989) (emphasis added). To establish when a plaintiff’s “legal injury” occurred, it
must be determined “at what point a plaintiff had information, 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 until February 13, 2013 must fail. The
issue of its awareness of this action would be relevant if this situation fell under V.R.C.P.
15 (c), and Plaintiffs were attempting to amend their pleadings because they had
mistakenly named the wrong party and were seeking relation back to the original date of
filing. Here, however, the question is when Plaintiffs’ 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 statute 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 answer to this question requires findings
of fact about when a reasonable person would have made the discovery, taking into
account all reasonable inferences from the circumstances. This must be done by the trier
of fact, which in this case is the jury. When Plaintiffs should have discovered that
Kubricky was a potential defendant is a disputed question of material fact. See Lillicrap,
156 Vt. at 172 (“The question of when the injury was or reasonably should have been
discovered is one of fact to be determined by the jury.” (internal quotation omitted)).

        Reasonable inferences favorable to Plaintiffs are sufficient to put in dispute the
material fact of when a reasonable person would have 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 issue 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

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