In January of 2010, the Kentucky Court of Appeals heard a case involving a group of plaintiffs that filed suit against their employer for being injured as a result of breathing in carbon monoxide. The case is Asher v. Unarco Material handling, Inc., 2010 WL 718850 (Crt.App. 2010). In Asher the facts are as follows.
The plaintiffs are current and former employees of a Wal-Mart where they claimed during a two week period in November and December of 2005 they were exposed to carbon monoxide gas from an enclosed freezer section. Id. The district court dismissed the claims of a new group of plaintiffs as time barred since they filed after a one year statute of limitations. Id. The new group of plaintiffs argued that their claim should ‘relate back’ to the original filing of the lawsuit and be allowed. The Court did state that “an amendment which adds a new party creates a new cause of action and there is no relation back to the original filing for purposes of limitations.” (cites omitted). Id.
Secondly, the new plaintiffs don’t really argue the ‘discovery rule’ which if they had, this Court would still not have allowed their lawsuit because it was untimely. The discovery rule is allowed when the injuries to the person are latent. For example, when a person is injured but the injury does not manifest until many years later. Under the discovery rule, the plaintiff/injured party would be able to bring a lawsuit after the statute of limitations has run because of the latent nature of his/her injuries. But, unlike other cases that have allowed this discovery rule to be used, in the case at hand, the new plaintiffs conceded that their injuries from carbon monoxide exposure manifested immediately. Id. “Kentucky law is clear that, absent a latent injury, the statute of limitations begins to run on the date the injury is inflicted even where the injury is slight initially and its full extent is not known until years later.” (cites omitted). Id.
Accordingly, this appellate court sustained the lower court’s rulings and dismissed the case as to the new plaintiffs that tried to join the lawsuit late.
If you have been the subject of a Louisville personal injury matter, please call and speak to a Louisville personal injury attorney at the Law Offices of Andrew S. Alitowski at 888-ASK-ANDREW (275-2637) or contact us online. We are available 24 hours a day, 7 days a week. For cases in Florida visit Broward Injury Attorneys.
If you are injured…Ask Andrew!!!