Frey v. Bank One

Decision Date28 August 1996
Docket NumberNo. 95-3981,95-3981
Citation91 F.3d 45
PartiesJean Pierre FREY, Plaintiff-Appellant, v. BANK ONE, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Michael C. McKinnon (argued), Reynolds, Beeby & Magnuson, Troy, MI, for Plaintiff-Appellant.

Brian K. Burke, Ellen E. Boshkoff (argued), Baker & Daniels, Indianapolis, IN, for Defendant-Appellee.

Before CUDAHY, KANNE, and DIANE P. WOOD, Circuit Judges.

KANNE, Circuit Judge.

Jean Pierre Frey jointly owned a bank account with Antonio Ferrari at Bank One in Indianapolis. That account was closed in February, 1990. Frey alleges that Ferrari reopened the Bank One account in June, 1990, fraudulently transferred $1,259,779.14 from Frey's account with Banca Nazionale del Lavoro (BNL) from June 28, 1990, until August 13, 1990, and then deposited the money into the Bank One account. Frey first brought an action against BNL and Ferrari; then, after learning about Bank One's involvement, brought this action against Bank One for negligently permitting the fraudulent transfer of funds. The district court granted judgment for Bank One on the pleadings pursuant to Fed.R.Civ.P. 12(c) finding the suit was time-barred by Indiana's two year statute of limitations. See Ind.Code § 34-1-2-2(1) (two year limitation on all tort claims for injury to personal property) (1992). On appeal, Frey disputes the timing of when the cause of action accrued. "We review a motion pursuant to Rule 12(c) under the same standard as a motion to dismiss under Fed.R.Civ.P. 12(b). Accordingly, the motion should not be granted unless it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief. In evaluating the motion, we will view the facts in the complaint in the light most favorable to the nonmoving party." GATX Leasing Corp. v. National Union Fire Ins. Co., 64 F.3d 1112, 1114 (7th Cir.1995) (citations omitted).

Indiana law, which governs this case, employs the discovery rule in all tort cases to determine the accrual date of an action. An action accrues and the statute of limitations begins to run when "the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result of the tortious act of another." Wehling v. Citizens National Bank, 586 N.E.2d 840, 843 (Ind.1992); see also City of Hobart Sewage Works v. McCullough, 656 N.E.2d 1185, 1189 (Ind.Ct.App.1995) (action accrued when plaintiffs discovered injury). This case centers on when Frey garnered sufficient information that he should have known that his injury was caused by another. On August 4, 1992, Frey requested that BNL deliver a statement of all of his accounts. From these statements, Frey learned that the money had been transferred to Bank One. The district court found that his action accrued then because the BNL statements showed that Bank One had accepted unauthorized wire transfers for more than one million dollars from his BNL account and that Bank One had deposited the transfers into the account he believed was closed.

Frey argues on appeal that his action did not accrue until September 20, 1993, when, pursuant to his action against BNL and Ferrari, he deposed officers from Bank One. The wire transfers from BNL to Bank One had transposed Frey's first and middle name ("Pierre Jean Frey" instead of "Jean Pierre Frey"). During the deposition, Frey learned that Bank One had internal procedures governing the acceptance of money transfers and that these procedures may have been violated. When the information on the wire transfers do not match the bank's central information file (for instance, the information lists the wrong name), then Bank One either returns the money or requests further instructions from the issuing bank. The money is not deposited into the account until the information is confirmed. However, when wire transfers come in with transposed letters or names but with correct account numbers, Bank One relies on the discretion of the operator whether to deposit the money or return the funds to the issuing bank. Frey believes that Bank One violated its internal policy by depositing the money into Frey's account because the name on the wire transfer did not match his name in the central information file. Further, Frey admits that he knew of his injury in August but contends that until this September deposition, he did not know that Bank One had handled his account negligently.

This argument misstates the law of Indiana. Indiana does not require that a plaintiff uncover the legal theory for holding a defendant liable for the action to accrue. Rather, the plaintiff must only be aware that the defendant caused him injury. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind.1992) (action accrued when plaintiff learned that the signature on the mortgage was forged); Habig v. Bruning, 613 N.E.2d 61, 64 (Ind.Ct.App.1993) (warranty action accrued when plaintiffs discovered that defendant...

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