John Budler v. General Motors Corporation

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2258
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John Budler; Linda Budler, as Co-
Personal Representatives of the
Estate of Andrew Budler,
Deceased,
Appellees,
v.
General Motors Corporation,
Appellant.
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Appeal from the United States
District Court for the
District of Nebraska.
[PUBLISHED]
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Submitted: December 18, 2003
Filed: March 11, 2005
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Before WOLLMAN, LAY, and HANSEN, Circuit Judges.
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HANSEN, Circuit Judge.
General Motors Corporation (“GMC”) brings this interlocutory appeal from the
district court’s denial of its motion to dismiss this diversity-based product liability
action. GMC sought dismissal, arguing that the action is barred by Nebraska’s ten-
year statute of repose for product liability actions. The district court denied the
motion to dismiss, concluding that the statute of repose was tolled by Andrew
Budler’s status as a minor when the accident occurred. Finding no controlling

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precedent in Nebraska decisions on whether the statute of repose in product liability
actions may be tolled by legal disability, we certified the question to the Nebraska
Supreme Court. The Nebraska Supreme Court has now respectfully answered our
question and concluded that the statute of repose is not tolled by a person’s status as
a minor, and we accordingly reverse the district court’s denial of GMC’s motion to
dismiss.
I.
Andrew Budler was born on October 3, 1979. On April 3, 1998, when he was
nineteen years old, Andrew was in an automobile accident. He was a passenger in a
1991 Grand Prix manufactured by GMC. The roof of the automobile collapsed
during a slow speed rollover. As a result, Andrew suffered permanent paralysis,
severe brain and spinal cord injuries, and many other complications.
Nebraska’s statute of repose provides that product liability actions must be
brought within ten years after the date when the product that allegedly caused an
injury was first sold, and the automobile involved in this accident was first sold on
June 24, 1991, giving the plaintiffs until June 24, 2001, to bring a product liability
action. A general tolling statute, however, permits limitations to be tolled when a
claim arises while a person is a minor.
At the time of the accident, Andrew was under age twenty-one. Relying on the
tolling statute, the Budlers brought suit on April 2, 2002. Andrew and his parents,
in their capacities as co-conservators of Andrew’s estate, filed a two-count product
liability complaint against GMC, seeking damages on the basis of strict liability and
negligence. As an affirmative defense and as grounds to dismiss, GMC asserted that
the suit was precluded by the statute of repose because the vehicle had first been sold
over ten years prior to commencement of the suit. Before the district court ruled on

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GMC’s motion to dismiss, the plaintiffs sought and were granted leave to amend the
complaint to increase the amount of damages requested.
On October 10, 2002, Andrew Budler died. In January 2003, his parents filed
a motion to substitute parties and sought leave to file a second amended complaint
changing their representative status to co-personal representatives of Andrew’s estate.
The court granted leave to amend, and the Budlers added two counts of wrongful
death to the complaint, also based upon product liability.
On March 24, 2003, the district court denied GMC’s motion to dismiss, noting
that the amended complaint was subject to the same statute of repose challenge but
concluding that Nebraska’s ten-year statute of repose was tolled by Andrew’s status
as a minor. The court then certified the order for interlocutory appeal.
II.
Because the district court certified its judgment for interlocutory appeal, we
have jurisdiction pursuant to 28 U.S.C. § 1292(b) (2000). We apply de novo review
to the district court’s disposition of the motion to dismiss. Randolph v. Rodgers, 253
F.3d 342, 345 (8th Cir. 2001). We likewise review de novo the district court’s
interpretation of state law. Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991);
Evergreen Invs., LLC v. FCL Graphics, Inc., 334 F.3d 750, 753 (8th Cir. 2003).
There is no dispute that Nebraska law applies to this diversity action.
Nebraska’s statute governing product liability actions provides a four-year
statute of limitation. Neb. Rev. Stat. § 25-224(1). Subsection 2, the statute of repose,
provides, “Notwithstanding subsection (1) of this section or any other statutory
provision to the contrary, any product liability action . . . shall be commenced within
ten years after the date when the product which allegedly caused the personal injury,
death, or damage was first sold or leased for use or consumption.” Neb. Rev. Stat.

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While this case was pending before the district court, the Nebraska Legislature
amended Section 25-224, but the district court applied the statute in effect at the time
the suit was filed, and we apply the 1995 version as well.
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§ 25-224(2) (Reissue 1995)1 (emphasis added). Generally, Nebraska tolls statutes of
limitation for people who are “within the age of twenty years old,” who suffer from
a mental disorder or who are imprisoned at the time the cause of action accrues. See
Neb. Rev. Stat. § 25-213. “[E]very such person shall be entitled to bring such action
within the respective times limited by this chapter after such disability is removed.”
Id.
In denying the motion to dismiss, the district court concluded that the ten-year
statute of repose conflicted with the wider protection afforded to minors under the
general tolling statute. The district court looked to previous Nebraska Supreme
Court decisions, which have considered the effect of the tolling statute in similar but
not identical contexts. See Macku v. Drackett Prods. Co., 343 N.W.2d 58 (Neb.
1984) (holding § 25-224(4)’s two-year extension was subject to tolling for a minor);
Sacchi v. Blodig, 341 N.W.2d 326 (Neb. 1983) (holding professional negligence suit
was subject to tolling for a mental disorder). The district court concluded that these
cases indicate a strong public policy in favor of tolling limitations on the basis of
legal disability. Noting that “[t]he policy reasons allowing this suit to proceed are as
strong [as] those in previous Nebraska cases, particularly since Andrew’s injuries
occurred before the ten-year statute of repose expired,” (Appellant’s Add. at 9), the
district court denied the motion to dismiss. GMC argues on appeal that the district
court incorrectly ignored the plain language of the statute of repose, which states that
product liability actions shall be commenced within ten years of the first sale of the
product notwithstanding “any other statutory provision to the contrary.” Neb. Rev.
Stat. § 25-224(2).

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In the absence of any controlling precedent on this issue in the decisions of the
Nebraska Supreme Court, and in light of the apparent conflict between the plain
language of the statute and Nebraska’s strong public policy favoring tolling for
minors, we sought certification of the question by the Nebraska Supreme Court. See
Neb. Rev. Stat. § 24-219 (stating that the Nebraska Supreme Court may answer
questions certified to it by this court if it is a question of Nebraska law “which may
be determinative of the cause then pending” and “there is no controlling precedent in
the decisions of the Supreme Court of this state”). Specifically, our question was
whether the ten-year statute of repose for product liability actions prescribed in Neb.
Rev. Stat. § 25-224(2) is tolled by a person’s status as a minor, pursuant to Neb. Rev.
Stat. § 25-213. The Nebraska Supreme Court kindly accepted our certification
request and has now ruled on the question.
Relying on the plain language of the statute, the Nebraska Supreme Court held
that the ten-year statute of repose, which applies “notwithstanding any other statutory
provision to the contrary,” specifically overrides the infancy tolling provision of
Section 25-213 and therefore is not subject to tolling on that basis. Budler v. Gen.
Motors Corp., 689 N.W.2d 847, 851 (Neb. 2004). We, of course, are bound by that
decision and hold accordingly that the district court erred by not granting GMC’s
motion to dismiss. See Lindsay Mfg. Co. v. Hartford Accident & Indem. Co., 118
F.3d 1263, 1267 (8th Cir. 1997) (noting in a diversity case that “we are bound in our
interpretation of Nebraska law by the decisions of the Nebraska Supreme Court”).
Our holding applies to the entirety of the Budlers’ second amended complaint.
The Budlers contend that the question of whether the statute of repose applies to their
wrongful death claims was not addressed by the district court and thus should not be
addressed by this court on appeal. We disagree. The district court’s ruling
acknowledges in a footnote that the plaintiffs had filed a first amended complaint and
a second amended complaint after the motion to dismiss had been filed. The first
amended complaint merely increased the request for damages on Andrew’s claims,

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and the second amended complaint was filed after Andrew’s death. His parents
changed their representative status from co-conservators of Andrew’s estate to co-
personal representatives, and added claims for wrongful death and funeral and burial
expenses. The district court did not specifically rule on each count of the complaint
but stated, “Since both the first and second amended complaints are subject to the
same statute of repose challenge, my ruling here also applies to those complaints.”
(Appellant’s Add. at 1 n.1.) The ruling did not single out any claims that were not
considered with the motion to dismiss, and thus, we review the entire complaint as
amended in this appeal.
The wrongful death claims are clearly based upon product liability. The ten-
year statute of repose expired before this suit was commenced, before Andrew died,
and thus before the wrongful death claims ever arose. Because the lawsuit was not
commenced within ten years of when the vehicle was first sold, all counts of the
second amended complaint are barred by the plain language of the Nebraska statute
of repose for product liability actions.
III.
Accordingly, we reverse the judgment of the district court and remand with
instructions to grant GMC’s motion to dismiss the cause of action.
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