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American Family Insurance and Prairie West Apartments I, A Limited v. Waupaca Elevator Company

January 12, 2012

AMERICAN FAMILY INSURANCE AND PRAIRIE WEST APARTMENTS I, A LIMITED PARTNERSHIP, AND VALLEY RENTAL SERVICE, INC.,
PLAINTIFFS AND APPELLANTS
v.
WAUPACA ELEVATOR COMPANY, INC.,
DEFENDANT AND APPELLEE



Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Douglas R. Herman, Judge.

The opinion of the court was delivered by: Sandstrom, Justice.

North Dakota Supreme and/or Appellate Courts 20110198.htm

N.D. Supreme Court

American Family Insurance v. Waupaca Elevator Co.,

2012 ND 13 This opinion is subject to petition for rehearing.

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REVERSED AND REMANDED.

Opinion of the Court by Sandstrom, Justice.

[¶1] American Family Insurance, Prairie West Apartments I, a limited partnership, and Valley Rental Service, Inc., ("American Family") appeal from a judgment dismissing with prejudice negligence and strict liability claims against Waupaca Elevator Company, Inc., on the basis that American Family did not begin its action against Waupaca Elevator within the six-year statute of limitations. We reverse the judgment and remand for further proceedings, concluding American Family properly served its summons and complaint upon Waupaca Elevator within the statute of limitations.

I

[¶2] On December 30, 2010, American Family sued Waupaca Elevator, a Wisconsin corporation with its principal place of business in Outagamie County, Wisconsin, alleging an elevator designed, manufactured, marketed, and sold by Waupaca Elevator damaged American Family's apartment building in West Fargo on December 30, 2004. American Family faxed a copy of its summons and complaint to the Outagamie County Sheriff's Department in Appleton, Wisconsin, and instructed the sheriff's department to serve both documents upon Waupaca Elevator after receiving the original documents by certified mail. The sheriff's department acknowledged receipt of the fax the same day by stamping the cover letter. Also on December 30, American Family mailed the original summons and complaint to the sheriff's department and sent a copy of both documents by certified mail to Larry Rice, an agent of Waupaca Elevator. On January 4, 2011, after receiving the original summons and complaint by certified mail, the sheriff's department personally served both upon William McMichael, an officer of Waupaca Elevator. Rice also signed for and received a copy of the summons and complaint by certified mail on January 4, 2011.

[¶3] Waupaca Elevator moved to dismiss the action, claiming American Family served the complaint insufficiently and outside the six-year statute of limitations for a tort action. American Family responded the statute of limitations countdown began to run on December 31, 2004, the day after the action accrued, and argued it timely served the complaint upon Waupaca Elevator on December 30, 2010.

[¶4] After a hearing on Waupaca Elevator's motion to dismiss, the district court dismissed American Family's complaint with prejudice, concluding American Family did not begin the action within the six-year statute of limitations.

[¶5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. American Family timely appealed under N.D.R.App.P. 4(a). We have jurisdiction under N.D. Const. art. ...


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