Opinion
No. ED78460
FILED: August 14, 2001
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, HONORABLE ROBERT H. DIERKER, JR.
Richard G. Byrd, Gerald K. Rabushka Associates, 7801 Forsyth Boulevard — Third Floor, St. Louis, MO 63105 FOR APPELLANTS
G. Keith Phoenix, Robert Rosenthal, Sandberg, Phoenix Von Gontard, P.C., 705 Olive Street, 11th Floor, St. Louis, MO 63101; Carl J. Geraci, Brown James, P.C.One City Centre, 15th Floor, St. Louis, MO 63101; Paul E. Kovacs, Armstrong Teasdale, L.L.P., One Metropolitan Square, Suite 2600, St. Louis, MO 63102 FOR RESPONDENTS
Appellants, Carlos Dupree, et al. ("appellants"), appeal the judgment of the Circuit Court of the City of St. Louis granting a motion to dismiss their petition in favor of respondent, Zenith Goldline Pharmaceuticals, Inc. ("respondent"). We transfer to the Supreme Court.
On July 23, 1997, appellants filed their initial petition against Dr. Blake Lambourne and two hospitals alleging that the deaths of Debra Pankins and her twins in April 1996, were the result of a failure to monitor and treat liver damage caused by the administration of the anti-hypertension drug Aldomet (generic: Methyldopa). Respondent is the manufacturer of Methyldopa. Respondent is a foreign corporation and has never had a registered agent in Missouri.
On October 13, 1999, appellants moved for and received an order granting leave to add respondent as an additional defendant. On October 21, 1999, appellants filed an amended petition, adding respondent as a defendant. On March 31, 2000, respondent was served in Florida, with Missouri jurisdiction premised on the "long-arm" statute. On May 26, 2000, respondent filed a motion to dismiss based on the statute of limitations for wrongful death actions, section 537.100, RSMO 1994, because three years had passed between the accrual of appellants' cause of action and the filing of the amended petition. On August 8, 2000, the trial court entered an order granting respondent's motion and certified it as final and appealable as there was no just cause for delay. Appellants appeal.
All statutory references are to RSMo 1994, unless otherwise indicated.
When reviewing a trial court's dismissal of a petition, appellate courts determine whether the facts pleaded and the reasonable inferences drawn therefrom provide any basis for relief. Wheelehan v. Dueker, 996 S.W.2d 780, 781 (Mo.App.E.D. 1999). "We treat all facts alleged as true and construe allegations liberally and favorably to the plaintiff."Id.
Appellants raise one point on appeal. In their sole point, appellants argue the trial court erred in dismissing their action against respondent as being barred by the wrongful death statute of limitation. Section 537.080.1 partially provides:
Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for.
Section 537.100 provides in pertinent part:
Every action instituted under section 537.080 shall be commenced within three years after the cause of action shall accrue; provided, that if any defendant, whether a resident or nonresident of the state at the time any such cause of action accrues, shall then or thereafter be absent or depart from the state, so that personal service cannot be had upon such defendant in the state in any such action heretofore or hereafter accruing, the time during which such defendant is so absent from the state shall not be deemed or taken as any part of the time limited for the commencement of such action against him. (emphasis added).
Appellants argue that because respondent had no agent for service of process in the State of Missouri, the wrongful death statute of limitation was tolled in that personal service could not be had upon respondent "in the state" as required by section 537.100.
Respondent, on the other hand, argues that the trial court was correct in dismissing appellants' petition against them. Respondent claims that the action is barred by the applicable statute of limitations because the language of section 537.100 clearly provides the statute is only tolled if service cannot be had on a non-resident defendant that would subject the defendant to the jurisdiction of Missouri courts. Respondent claims that it could have been brought personally before the court in one of two ways, by service under the foreign corporation statute, section 351.594 or under the long-arm statute, section 506.510. Section 506.510 provides in pertinent part:
Service of process upon any person who is subject to the jurisdiction of the courts of this state, as provided in section 506.500, may be made by personally serving the process upon the defendant outside this state, or upon a corporation by serving the process upon a managing officer or any person or corporation who shall be designated as a registered agent by such corporation in any of the several states, and shall have the same force and effect as though the process had been served within this state. (emphasis added).
Respondent argues the above provision makes it clear that service of a corporate registered agent in another state would have the same force and effect as though the process had been served within this state. Thus, respondent argues since it was amenable to personal service under the laws of this state and subject to Missouri jurisdiction under the long-arm statute, the tolling provision in section 537.100 did not apply.
Appellants, relying on Poling v. Moitra, 717 S.W.2d 520 (Mo.banc 1986), argue that service under the long-arm statute would not have the same force and effect as though the process had been served in this state. In Poling, this Court transferred the case so that the Missouri Supreme Court could determine whether the statute of limitations on medical malpractice claims, section 516.105, RSMo 1978, bars such a claim against a physician who left Missouri to reside in another state, or whether the tolling provisions of section 516.200, RSMo 1978, are applicable even though the physician remained subject to personal service and personal judgment under Missouri's long-arm statutes. Id. at 521. The Supreme Court held that the two-year statute of limitations on medical malpractice claims was tolled against the physician, irrespective of whether he could have been served under the long-arm statute. Id. at 523. The Court reasoned that: "[i]f the legislature intended to make the statute impotent in cases where an absent defendant can be sued via the long-arm statute, it could have expressly done so. For the Court to so construe section 516.200 would be plain judicial legislation." Id. at 522. Appellants, therefore, argue that similarly the tolling provision in this case is applicable, irrespective of whether respondent could have been served under the long-arm statutes.
The tolling statute, section 516.200, states:
If at any time when any cause of action herein specified accrues against any person who is a resident of this state and he is absent therefrom, such action may be commenced within the times herein respectively limited after the return of such person into the state; and if, after such cause of action shall have accrued, such person depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.
However, respondent argues that appellants' suggested interpretation would burden interstate commerce because a greater burden would be placed on non-residents. Respondent cites Bottineau Farmers Elevator v. Woodward-Clyde Consultants, 963 F.2d 1064 (8th Cir. 1992) for support. In Bottineau, the Court held that a North Dakota tolling statute placed a significant burden on interstate commerce because it forces a non-resident defendant to choose between being physically present in the state for the limitations period or forfeiting the statute of limitations defense. Id. at 1074. The Court further noted that the state's interest in assisting its residents in litigating against non-resident defendants, when long-arm service is available, cannot justify the imposition of a greater burden on non-residents than residents. Id.
Furthermore, the United States District Court, Eastern Division, Missouri, recently held that Missouri tolling statute, section 516.200, which purported to toll statute of limitations during time period where majority shareholder resided outside of Missouri violated the Commerce Clause. Rademeyer v. Farris, ___ F. Supp.2d ___ 2001 WL 515061 (E.D.Mo. 2001). The Court concluded that the tolling statute, as written, is unconstitutional, and it is the Missouri legislature's responsibility to rewrite the statute in a constitutional manner, if it chooses. Id.
The Polling decision is inapplicable in the instant case. Polling addressed a different statute of limitation with a different tolling provision. Section 516.200 addresses cases involving Missouri residents who left the state. The statute has not been applied to non-residents. See Ahearn v. Lafayette Pharmacal, Inc., 729 S.W.2d 501, 504 (Mo.App.E.D. 1987) ("By its terms, the tolling statute, section 516.200, is applicable when a resident is absent from the state or when he departs out of the state and resides elsewhere."). The statute addresses different concerns than we have in the present case. Thus, the Polling case is not applicable.
Section 537.100 requires a cause of action to be tolled if personal service cannot be had upon such defendant in the state. Section 506.510 provides that service via the long-arm statute shall have the same force and effect as though the process had been served within this state. Service under section 506.510 satisfies the requirement of section 537.100, under which a cause of action is not tolled if personal service can be had upon a defendant in this state. Respondent could have been served via the long-arm statutes. The running of the statute of limitations on appellants' claims against respondent is not tolled.
Based on the foregoing, we would affirm the judgment of the trial court. However, because of the general interest and importance of this issue, we transfer to the Supreme Court pursuant to Rule 83.02.
Lawrence G. Crahan, J., and George W. Draper III, J., concur