Burks v. Rushmore

• Decision Date: 10 November 1986
• Docket Number: No. 41A04-8604-CV-120,41A04-8604-CV-120
• Citation: 499 N.E.2d 762
• Parties: James E. BURKS, Appellant (Plaintiff Below), v. C.H. RUSHMORE, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 762

499 N.E.2d 762

James E. BURKS, Appellant (Plaintiff Below), v. C.H. RUSHMORE, Appellee (Defendant Below).

No. 41A04-8604-CV-120.

Court of Appeals of Indiana,

Fourth District.

Nov. 10, 1986.

David S. McCrea, McCrea & McCrea, Bloomington, for appellant.

David S. Allen, Locke, Reynolds, Boyd & Weisell, A David Stippler, Indianapolis, for appellee.

YOUNG, Judge.

James E. Burks appeals an adverse entry of summary judgment on his claim of defamation bought against C.H. Rushmore, M.D. The sole issue on appeal is whether the discovery rule adopted by our supreme court in Barnes v. A.H. Robins Co., Inc. (1985), Ind., 476 N.E.2d 84, should be extended to cover defamation actions. Because we find that the rule is applicable, we reverse the entry of summary judgment in favor of Rushmore.

The pertinent facts reveal that Burks was an employee of Indiana Bell Telephone Company, Inc. in 1981. Rushmore was the Medical Director for Indiana Bell and was responsible for the maintenance and supervision of Indiana Bell's employee disability leave programs.

During the first week of November, when Burks was on authorized sickness disability leave, Rushmore received a newspaper article with a handwritten note from Scott Newlund, the manager of Indiana Bell's Bloomington, Indiana business office. The article indicated that Burks was involved with Empire Property Management Company, Inc. as a principal, active manager and partner. On November 9, 1981, Rushmore wrote the following memorandum and circulated it, along with the newspaper article and Newlund's note, to three Indiana Bell employees:

This disturbs me, and I am wondering if, with Scott Newland's [sic] information, we would consider that this is fraud since he has been on disability for some time.

This memorandum is the basis for Burks' defamation claim against Rushmore.

Burks first learned of the memorandum on November 3, 1982 during a hearing before the Indiana Employment Security Division when his attorney was handed the memorandum by Indiana Bell's attorney. That same day, Burks wrote Newlund and demanded a copy of the memorandum. In a letter dated December 3, 1982, Newlund refused to provide a copy of the memorandum but acknowledged that the memorandum had been written by the Medical Director of Indiana Bell. On December 8, Burks wrote Newlund again and acknowledged that he knew Rushmore was the Medical Director. Burks filed suit against Rushmore on November 1, 1984, more than two years after the memorandum was circulated but less than two years after Burks became aware of the memorandum.

On May 10, 1985, Rushmore filed his motion for summary judgment arguing that the applicable statute of limitations had expired before the case was filed. On January 23, 1986, the trial court granted Rushmore's motion for summary judgment. Burks then filed this appeal.

Generally, a defamation action accrues and the statute of limitations begins to run upon the publication of the defamatory material. Chacharis v. Fadell (1982), Ind.App., 438 N.E.2d 1032, 1033. Thus, absent a legal excuse to toll the statute of limitations, it begins to run when publication occurs. However, our supreme court has recognized that occasionally the facts presented by a case compel the application of a discovery rule. In Barnes v. A.H. Robins Co., Inc., supra at 87, the Indiana supreme court adopted the discovery rule for actions in which a plaintiff suffered an injury "caused by disease which may have been contracted as a result of protracted exposure to a foreign substance." In these types of actions, "the statute of limitations commences to run from the date the plaintiff knew or should have discovered that she suffered an injury or impingement, and that it was caused by the product or act of another." Id. at 87-88. While the court did not extend the discovery rule to other types of tort actions, it did not preclude the possibility that such a step be taken in the future when an appropriate case presented the issue. ¹

"The discovery rule is based on the reasoning that it is inconsistent with our system of jurisprudence to require a claimant to bring his cause of action in a limited period in which, even with due diligence, he could not be aware a cause of action exists. In the typical tort claim, injury occurs at the time the negligent act is done and the claimant is either aware of the injury, or at least the cause of the injury, and is put on notice to determine the extent of that injury."

Id. at 86.

The modern trend is to apply the rule of discovery in defamation cases in which the alleged defamatory statements are published under circumstances in which they are likely to be kept secret from the injured party. Clark v. Airesearch Mfg. Co. of Ariz., Inc. (1983), 138 Ariz. 240, 673 P.2d 984, 986. Courts applying the discovery rule under these circumstances have considered the policies of discouraging stale claims and encouraging diligence in pursuing actions and concluded that these considerations are outweighed by the need to preserve the injured parties' rights where the defamatory statements are likely to be kept secret. Id. The discovery rule has no applicability to defamation actions where the publication is accomplished through the mass media because there is no attempt to conceal or hide the publication from the defendant. In these...