Cart v. Marcum, 21172

• Citation: 423 S.E.2d 644,188 W.Va. 241
• Decision Date: 12 November 1992
• Docket Number: No. 21172,21172
• Court: Supreme Court of West Virginia
• Parties: Cecil W. CART, Appellant, v. Ked MARCUM, Avery Hager and David Scott Jefferson, Defendants Below, Ked Marcum and Avery Hager, Appellees.

Page 644

423 S.E.2d 644

188 W.Va. 241

Cecil W. CART, Appellant, v. Ked MARCUM, Avery Hager and David Scott Jefferson, Defendants Below Ked Marcum and Avery Hager, Appellees.

No. 21172.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 15, 1992.

Decided Nov. 12, 1992.

Syllabus by the Court

1. Generally, a cause of action accrues (i.e., the statute of limitations begins to run) when a tort occurs; under the "discovery rule," the statute of limitations is tolled until a claimant knows or by reasonable diligence should know of his claim.

2. The "discovery rule" is generally applicable to all torts, unless there is a clear statutory prohibition of its application.

3. Mere ignorance of the existence of a cause of action or of the identity of the wrongdoer does not prevent the running of the statute of limitations; the "discovery rule" applies only when there is a strong showing by the plaintiff that some action by the defendant prevented the plaintiff from knowing of the wrong at the time of the injury.

J. William St. Clair, Huntington, for appellant.

David C. Ray, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, for appellee Ked Marcum.

R.R. Fredeking, II, Fredeking & Fredeking, Huntington, for appellee Avery Hager.

NEELY, Justice:

In this case we are asked to determine what circumstances toll the statute of limitations in a tort case because of lack of knowledge of the wrong by the plaintiff. Mr. Cart, the plaintiff below, filed his suit more than two years after an alleged conversion of his timber took place, but contends that the suit was filed within two years of the time he discovered the tort and who had committed it. Although we agree that under certain circumstances the statute of limitations may be tolled until discovery the general rule is that the statute of limitations begins to run when the injury occurs. Accordingly, we affirm.

I.

In June of 1988, Mr. Cart entered into an oral contract with David Scott Jefferson to allow Mr. Jefferson to enter Mr. Cart's land to cut, remove, and sell timber from 65 acres. Mr. Cart and Mr. Jefferson agreed to split the proceeds of the sale evenly, with Mr. Jefferson bearing all expenses and replanting costs. Mr. Jefferson produced a written contract and gave it to Mr. Cart, but the contract was never signed.

Mr. Cart was concerned about Mr. Jefferson's repeated stalling tactics to avoid signing their agreement. ¹ Mr. Cart fenced off his property and warned Mr. Jefferson not to come onto the property until the contract was signed. Mr. Jefferson apparently did not want to sign the contract; instead, he took all of the timber that he had cut and sold it to saw mills in order to have the wood processed. ² Mr. Jefferson subsequently absconded with the proceeds from the sale of that timber. Mr. Jefferson has yet to be located. It is clear that the alleged conversion took place no later than 9 August 1988. ³

Mr. Cart visited his property on 14 August 1988 and noticed for the first time that the cut timber had been removed from the property. He tried to contact Mr. Jefferson after the timber disappeared, but was not able to locate him. In the Fall of 1989, Mr. Cart's investigation combined with the investigations of the state police and the F.B.I. traced the path of at least some of the timber through Mr. Hager and Mr. Marcum.

Mr. Cart did not file his action until 10 August 1990, which is more than two years after the accrual of the cause of action. The statute of limitations for this type of tort is two years. ⁴ The Circuit Court of Cabell County dismissed the case against defendants Marcum and Hager on summary judgment because the action was time-barred by the statute of limitations.

II.

"The statute of limitations ordinarily begins to run when the right to bring an action for personal injuries accrues which is when the injury is inflicted." Syl. pt. 1 Jones v. Trustees of Bethany College, 177 W.Va. 168, 351 S.E.2d 183 (1986). However, "[j]ustice is not done when an injured person loses his right to sue before he discovers if he was injured or who to sue." Hickman v. Grover, 178 W.Va. 249, 252, 358 S.E.2d 810, 813 (1987). In an attempt to mitigate the harshness of the statute of limitations, the "discovery rule" has been created by courts across the nation, including this Court. Under the "discovery rule," the statute of limitations is tolled until the plaintiff knows or by reasonable diligence should know that he has been injured and who is responsible.

Early on, ⁵ the "discovery rule" was invoked primarily in medical malpractice actions, because often the results of such malpractice would be apparent only years later: ⁶

In [malpractice actions] we have recognized that often the plaintiff is not aware of the fact that an injury has been inflicted. In the area of medical malpractice, this is particularly true because the physician's negligence may consist of some improper diagnosis or improper surgery when the plaintiff is unconscious so that he is not aware that there has been an injury.

Jones v. Trustees of Bethany College, 177 W.Va. 168, 169, 351 S.E.2d 183, 184 (1986).

Despite this tendency to give unaware plaintiffs a break, the plaintiffs still had to show that they had good reason to be unaware of their injury:

'In a medical malpractice case the statute of limitations begins to run at the time the injury is inflicted, or ... when ... the injury is discovered or when by the exercise of reasonable diligence it should have been discovered.' Syllabus Point 2, in part, Hundley v. Martinez, 151 W.Va. 977, 158 S.E.2d 159 (1967). [Emphasis added]

Syl. pt. 2, Bethany College, 177 W.Va. 168, 351 S.E.2d 183. For example, if a surgeon leaves a surgical sponge inside of a patient and the patient discovers it five years later and immediately brings suit, that would fit under the discovery rule. However, if the same patient (with health insurance) bore noticeable stomach pains for two more years before having a doctor examine him, then he did not act with reasonable diligence and the "discovery rule" would not protect the patient.

From medical malpractice, the "discovery rule" was expanded to legal malpractice:

Although, as asserted by the defendant, the Morgan decision [Morgan v. Grace Hospital, Inc., 149 W.Va. 783, 144 S.E.2d 156 (1965) ] applying the "discovery rule" was restricted to cases involving foreign objects negligently left in a patient's body, we discern no valid reason why the principle expressed therein should not be extended when such extension is designed to promote justice and right. Morgan extended the rule to escape one which was "unrealistic and cruelly harsh." For the same reason we extend the Morgan rule to cover the instant case. [Emphasis added]

Family Savings and Loan, Inc. v. Ciccarello, 157 W.Va. 983, 991, 207 S.E.2d 157, 163 (1974).

Indeed, that reasoning has allowed plaintiffs, a tort at a time, to attempt to extend the torts included under the "discovery rule," such as products liability, ⁷ faulty construction ⁸, and invasion of privacy. ⁹ Unless a clear statute foreclosed expanding the scope of the discovery rule, ¹⁰ we have expanded it each time. Such a piecemeal method has enabled a victim of nearly any tort who misses the statute of limitations to argue that his tort is analogous to the torts to which the "discovery rule" applies; however, each expansion has occurred as the expense of the predictability that bright line rules like a strict statute of repose create and also at the expense of reviving litigation that should be long dead.

"The tendency of the law must always be to narrow the field of uncertainty." O.W. Holmes, The Common Law 127 (1881). Therefore, we hold today that the "discovery rule" is generally applicable to all torts, unless there is a clear statutory prohibition of its application. ¹¹ However, by declaring the existence of a "discovery rule" we do not eviscerate the statute of limitations: the statute of limitations will apply unless the handicaps to discovery at the time of the injury are great and are largely the product of the defendant's conduct in concealing either the tort or the wrongdoer's identity.

The "discovery rule," then, is to be applied with great circumspection on a case-by-case basis only where there is a strong showing by the plaintiff that he was prevented from knowing of the claim at the time of the injury. The general rule is that mere ignorance of the existence of a cause of action or of the identity of the wrongdoer does not prevent the running of a statute of limitations. ¹² In order to benefit from the rule, a plaintiff must make a strong showing of fraudulent concealment, ¹³ inability to comprehend the injury, ¹⁴ or other extreme hardship:

.... However, special rules apply in a case involving particular hardship or other circumstances justifying different accrual rules. [Emphasis added] 54 C.J.S. Limitations of Actions § 87(a) (1987).

Applying the "discovery rule" in this case, we do not find that Mr. Cart has made the showing that he could not reasonably have discovered who took his wood. Indeed, Mr. Cart suspected Mr. Jefferson would take the wood in advance of the actual theft. Mr. Cart took significant precautions in order to prevent Mr. Jefferson from stealing the timber; however, these precautions were not successful. Sure enough, Mr. Cart's suspicions were correct and Mr. Jefferson took the timber despite the fact he had no permission to do so. Mr. Cart should have known that Mr. Jefferson took his wood and he should have known it at the time of the injury.

Mr. Cart suffered from none of the disabilities that a beneficiary of the "discovery rule" must show in order to free himself from the demands of the statute of limitations. ¹⁵ Mr. Cart was not robbed by a stranger whose identity was discovered only many years later; Mr. Cart did not have a piece of surgical equipment left in his body that was discovered only several years...