No. 85-183
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
TIMOTHY E . BENNETT,
Plaintiff and Appellant,
DOW CHEMICAL COMPANY, a corp., VELSICOL
CHEMICAL COMPANY, a corp., RANCHER'S AGRA
SERVICES, IMC., a corp., E.C.A. ENVIRONMENTAL
YANAGEMENT SERVICES, INC., a Mont. corp., and
B O T A ? MERCHANDISING, INC. , a. corp. , d/b/a
!ITDA
AGRICULTURAL MANAGMENT SERVICES; WESTERN F.ANCH
SUPPLY CO., a corp.; SUPERIOR FIRE APPA.RATUS
COMPANY, a corp., and ER.OYHILL COMPANY, a corp.,
Defendants and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Henry Loble , Jud.ge presiding.
COTJNSEL OF RECORD :
For Appellant:
Smith Law Firm; Robert J. Sewell argued, Helena,
Montana
For Respondents:
Boone, Karlberg & Haddon; Randy J. Cox argued for
Dow Chemical, Rancher's Agra, Western Ranch Supply,
Superior Fire Apparatus & Broyhill Co., Missoula,
F4ontana
KPI-ler, Reynolds, Drake, Sternhagen & Johnson; Richard
E. Gillespie argued for Velsicol Chemical, Helena,
Montana
M.R. Daniels, Rancher's Agra Services, Deer Lodge,
Montana
Alexander & Baucus; Gary M. Zadick argued for E.C.A
Environmental Management, Great Falls, Montana
Henningsen & Purcell; James F. Purcell, Western Ranch
Supply, Butte, Montana
Gough, Shanahan, Johnson & Waterman; Joseph P. Mazurek,
Superior Fire Apparatus, Helena, Montana
Hooks & Budewitz; Patrick F. Hooks, Broyhill Co.,
Townsend, Montana
Submitted: December 4, 1985
Decided; February 6, 1986
Filed: FEB 61986
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Appellant brought this action in Lewis and Clark County
District Court alleging claims in both tort and contract.
The District Court granted summary judgment in favor of all
respondents except Rancher's Agra Services, Inc., because the
statute of limitations had expired. Rancher's Agra Services,
Inc., had failed to file an answer so its motion for summary
judgment was denied. Appellant appeals the summary judg-
ments. Rencher's Agra Services, Inc., asks that this Court
direct the District Court to grant its motion for summary
judgment, because the same statutes of limitations that apply
to the other respondents apply to it also.
We will consider the followin9 two issues raised by
appellant:
1. Does the statute of limitations accrue from the
date of injury, date of discovery of the facts which would
give rise to a cause of action, or date of discovery of the
legal right to a cause of action?
2. Which statute of limitations is applicable to
claims of breach of seller warranties where privity is absent
between the claimant a.nd defendant?
The Court ill also consider whether or not to order
entry of summary judgment in favor of Rancher's Agra Servic-
es, Inc.
The following scenario is taken from appellant's al-
leged facts.
Appellant was employed by Powell County in the summer
of 1979 as a weed sprayer for the Powell County Weed Control
Board. He worked under the supervision of Ralph Beck.
On July 2, 1979, appellant was on the job with Beck and
his co-workers on the Cliff Gravely property near the Little
Blackfoot River between Garrison and Avon. He was holding
the spray gun in his hands and one of his other co-workers
started the pump. The hose connecting the gun to the pump
suddenly separated at the gun spraying appellant in the
chest, head and. face with a herbicide mixture. Beck took
appellant to the river and washed him off.
Within a few days, appellant began to feel weak and
experienced stomach cramps and diarrhea. By July 11, 1979,
he was Losing control of his extremities. He found that he
was unable to complete simple tasks such as flipping a light
switch or turning on the TV because his fingers would not
work. His legs were likewise unusable.
Appellant consulted Stan Smith, M.D., on July 11, 1979,
concerning his symptoms and was advised that he was suffering
from peripheral neuropathy as a result of exposure to chemi-
cal herbicides. Appel-!.ant gradually began to recover over
the next several months, hut he has permanently lost some
function and use of his extremities.
On August 9, 1979, Beck brought appellant to Helena and
assisted him with the filing of his workers' compensation
claim. Appellant was placed on temporary total disability
benefits.
In September 1980, appellant was notified by the Work-
ers' Compensation Division that his claim was being reclassi-
fied as an occupational disease. Concerned about the
implications of such reclassification, he retained an attor-
ney, David M. McLean, to represent him on September 11, 1980.
If the instant action had been filed at this time, there
would have been no statute of limitations problem.
Appellant continued to receive compensation u ~ t i lthe
spring of 1984. On Parch 17, 1.984, he met with McLean con-
cerning resolution of his claim and was advised that he might
have a third party claim against the persons and companies
involved in the production, distribution, and sale of the
herbicides and spraying equipment. We note that this advise-
ment came three and one-half years after Mr. McLean was
originally retained by appellant. The instant action was
commenced on July 6, 1984. Appellant claims counts in strict
liabil-ity in tort, tortious mj srepresentation, negligence and
contract for breach of sellers1 warranty.
Appellant's employer, Powell County, purchased 2-4D and
TORDON manufactured by DOW, and RANVI1.-D, macufactured by
Velsicol , from Rancher ' s Agra . The sprayer was manufactured
by Broyhill and purchased by Powell County from Agricultural
Management. Superior Fire performed fabrication and in-
stalled parts on the sprayer. The parts were provided by
Broyhill, Agricultural Management, and Western Ranch Supply.
The purchases, fabrication and installation of parts all
occurred prior to the accident. Appellant had no direct
written contract with any of the respondents.
The applicable statute of limitations period for ac-
tions in negligence and products liability in tort is three
years. Section 27-2-204, MCA.
The District Court found that the three-year tort
statute of limitations had run on the products 1-j-ability,
tortious misrepresentation and negligence counts. The court
also found that there was no contract from which to imply the
warranties which appellant claims were breached. The court
reasoned that without a contract the breach of warranty
claims sounded in tort rather than contract. Therefore, the
warranty claims were also barred by the tort statute of
limitations.
Appellant. first contends that the statute of limita-
tions did not begin running until March 17, 1984, when his
attorney advised him that he may have a third party claim
against respondents. Appellant is asking us to apply a
"discovery rule" by which the statute of limitations was
tolled until the appellant "discovered" his legal rights.
This application would delay the initial running of t.he
statute by almost five years, because the injury occurred and
legal- cause was discovered in July 1979.
This Court follows the general rule that the fact that
a party with a cause of action has no knowledge of his
rights, or even the facts out of which the cause arises, does
not delay the running of the statute of limitations until he
discovers the facts or learns of his rights under those
facts. Carlson v. Ray Geophysical Division (1971), 156 Mont.
450, 454, 481 P.2d 327; Kerrigan v. OIMeara (1924), 71 Mont.
1, 8, 227 P. 819. However, the application of the general
rule becomes difficult where the injured person is prevented
from knowing of his i-njury by concealment or other
circumstances. In such cases, we have recognized certain
exceptions which toll the running of the statute until the
injury is discovered. See Monroe v. Harper (1974), 164 Mont.
23, 518 P.2d 788. In Grey v. Silver Row County (1967), 149
Mont. 213, 425 P.2d 819, we extended application of this
"discovery rule" in a malpractice action to a situation where
the plainti" was unable to discover his injury until his
cast was removed. We tolled the statute until the injury was
discovered, thereby delaying the running of the period by
fifty-seven days. Also in Grey, 424 P.2d at 821, we
announced the equitable limitation of the discovery rule of
giving full scope to the statute of limitations on the one
hand and according a reasonable measure of justice to the
plaintiff on the other. The Federal District Court in
Billings took this lead from Grey and, after considering the
equities, applied the discovery doctrine in a products
liability action to toll the statute of limitations until the
plaintiff discovered that his cataracts may have been caused
by the drug MER/29. Hornung v. Richardson-Merril, Inc. (D.
Mont. 1970), 317 F.Supp. 183. Hornung, then, stands for the
idea that a statute of limitations can be tolled until the
plaintiff discovers the legal cause of his injury if equity
so dictates. However, in 1980, the Federal District Court in
Butte specifically refused to require discovery of the legal
cause of an injury to initiate the running of a statute of
1-imitations. Much v. Sturm, Ruger & Co., Inc. (D. Mont.
1980), 502 F.Supp. 743, 745. Hornunq therefore marks the
farthest reaches of discovery doctrine in Montana.
As such, there is no Montana precedent for utilizing
discovery doctrine to toll the statute of limitations beyond
discovery of the cause of an injury. However, appellant here
would have us extend the doctrine to toll the statute for
five years beyond the discovery of the cause of his injury up
until the day he discovered his legal rights. Taken to its
logical extreme, and in consideration with the continuing
development of new torts and property rights, appellant's
position could have the effect of forever denying potential
defendants the benefits of a statute of limitations. More-
over, this Court's adoption of appellant's position in this
case would encourage less diligent performance of duties by
attorneys.
In view of these public policy considerations and the
extreme delay involved in the instant case, the equities do
not weigh in appellant's favor. Therefore, under the facts
of this case, we expressly decline to extend discovery doc-
trine to toll statutes of limitation until discovery of legal
rights. We affirm the District Court and hold that appel-
lant's tort claims were barred by the three-year tort statute
of limitations which began running in July of 1979, when both
injury and discovery of legal cause occurred.
Appellant then contends that one of the longer contract
statute of limitations, SS 27-2-202 (2), 27-2-202 (1), or
30-2-725, MCk, instead of the tort statute of limitations
should apply to his brea.ch of warranty claims. We disagree.
Appellant's breach of warranty claims include breach of
the implied covenants of good faith and fair dealing, fitness
for a particular purpose, merchantability and performance in
a workmanlike manner. These covenants are imposed by law
regardless of contract. As such, and absent contract, breach
of the implied covenants sound in tort--not contract. See
Degnan v. Executive Homes, Inc. (Mont. 1985), 696 P.2d 431,
435, 42 St.Rep. 262, and Gates v. Life of 14ontana Ins. Co.
(Mont. 1983), 668 P.2d 213, 215, 40 St.Rep. 1287. Appellant
has no contract with respondents here. We therefore affirm
the District Court's conclusion that appellant's breach of
warranty claims are barred by the three-year tort statute of
limitations.
We will now consider the request of Rancher's Agra
Services, Inc., for this Court to order the District Court to
enter summary judgment by reason of the running of the
statute of limitations in its favor. Rule 8 (c), M.R.Civ.P.,
provides that a defense of the running of the statute of
limitations is an affirmative defense and can only he raised
by answer. Taylor v. Dept. of Fish, Wildlife & Parks (Mont.
1983), 666 P.2d 1228, 1233, 40 St.Rep. 1112. Rancher's has
never filed an answer nor provided this Court with any reason
for this failure. We can perceive no reason to excuse it
from filing an answer. The request is denied.
The District Court is affirmed on all issues.
5{/~L2$
Chief Justice
We concur:
n