Lashlee v. Sumner

Decision Date08 February 1978
Docket NumberNo. 76-1976,76-1976
Citation570 F.2d 107
PartiesWilliam B. LASHLEE, Jr., Plaintiff-Appellant, v. Morris E. SUMNER, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

James D. St. Clair, William H. Baker, Hale & Dorr, Boston, Mass., Charles E. English, English, Lucas, Priest & Owsley, Bowling Green, Ky., for plaintiff-appellant.

Reginald L. Ayers, Bell, Orr, Ayers & Moore, Bowling Green, Ky., Jon W. Brassel, Annapolis, Md., for defendant-appellee.

Before WEICK, LIVELY and ENGEL, Circuit Judges.

LIVELY, Circuit Judge.

This is an appeal from summary judgment for the defendant in a diversity case based upon the district court's holding that the plaintiff's action was barred by a one-year Kentucky statute of limitations. The complaint charged that the defendant was employed as a consulting psychologist by plaintiff's employer, and that following an interview with plaintiff the defendant sent a written evaluation to the employer which contained libelous statements which are "utterly false and untrue." The complaint which was filed February 24, 1975, charged that the written report was submitted to plaintiff's employer on October 4, 1973.

Kentucky Revised Statutes (KRS) 413.140(1)(d) provides that an action for libel or slander "shall be commenced within one year after the cause of action accrued." The district court found that publication of the report took place between October 4 and October 8, 1973 and that all claims of the complaint which were premised on publication of the report were barred by the one-year statute of limitations. After a hearing on the defendant's motion to dismiss, which was treated as a motion for summary judgment, Rule 12(b), Fed.R.Civ.P., the plaintiff filed an amended complaint charging the defendant with deliberate and fraudulent concealment of the allegedly libelous report. The district court held as a matter of law that there was no concealment which would prevent the running of the limitations period.

Plaintiff contends it was error to dismiss his entire action, since the libel claim is just one of four distinct causes of action which he pled. The other three, he asserts, are for negligence or malpractice, interference with contractual relations and intentional infliction of emotional distress. As the defendant notes, however, the complaint relates the injury for which damages are sought in each of the four counts to the delivery of the report to plaintiff's employer. Thus in the second count it is charged that the defendant violated a duty of due care owed to the plaintiff by negligently and carelessly issuing the report. The third count states that the report was submitted to the employer in bad faith and that the defendant issued the report with the express purpose of interfering with a beneficial contractual relationship which plaintiff had with his employer. Finally, it is claimed in the fourth count that the defendant deliberately issued the report knowing it would eventually be brought to the plaintiff's attention and would cause him extreme mental suffering and emotional distress. The complaint incorporates in each of the latter three counts the allegations of the first count that the derogatory portions of the report were "utterly false and untrue" and that the defendant acted in bad faith and recklessly, without reasonable grounds for believing the statements were true.

The rule is firmly established in Kentucky that a statute of limitations which specifically mentions a recognized tort applies to all actions founded on that tort regardless of the method by which it is claimed the tort has been committed. Skaggs v. Stanton, 532 S.W.2d 442 (Ky.1975). Kentucky also observes the related rule that a specific statute of limitations covers all actions whose real purpose is to recover for the injury addressed by it in preference to a general statute of limitations. Carr v. Texas Eastern Transmission Corp., 344 S.W.2d 619 (Ky.1961). The underlying wrong which the complaint alleges is defamation by publication of a libelous report, and the claim of injury set out in each count springs from the act of publication. An essential element of each "cause of action" is the publication of an utterly false derogatory report about the plaintiff. The gist of the entire action is the libel, and the district court properly held that the one-year statute of limitations applies to all counts. See Quigley v. Hawthorne Lumber Co., 264 F.Supp. 214 (S.D.N.Y.1967).

Plaintiff maintains that even if the one-year statute applies the district court erred in holding that his cause of action accrued with the submission of the report by defendant to plaintiff's employer in October 1973. In Barnett v. Louisville & Nashville R. R. Co., 407 F.2d 1333 (6th Cir. 1969), this court affirmed the dismissal of a slander action by a district court in Kentucky on a finding that it had been commenced more than one year after the action accrued. The court held that "the occurrence of the tort" marked the beginning of the running of the statute of limitations. The tort occurred when the slander was uttered. This is in accord with the general rule that a cause of action for defamation accrues at the time of publication. 50 Am.Jur.2d, Libel and Slander, § 390. Plaintiff argues that his cause of action for libel did not accrue until he learned or should have learned of its existence. It is his position that he did not know he had been libeled until he was furnished a copy of the report "sometime after April 22, 1974, 1 at the time he was demoted within the company." Thus he seeks to have the "discovery rule," which Kentucky now recognizes in medical malpractice cases, applied to this action for libel.

The Kentucky Court of Appeals recently departed from its previous holdings that in medical malpractice cases the right of action accrues upon the occurrence of the tort. Tomlinson v. Siehl, 459 S.W.2d 166 (Ky.1970). Citing decisions which dealt with the "inherently unknowable" nature of the injury and the "blamelessly ignorant" victim, the court adopted the rule that a right of action for medical malpractice accrues upon discovery of the injury. In Hackworth v. Hart, 474 S.W.2d 377, 379 (Ky.1971), the holding of Tomlinson was restated as follows: "The statute begins to run on the date of discovery of the injury, or from the date it should, in the exercise of ordinary care and diligence, have been discovered." (emphasis in original). Plaintiff contends that the injury to his relationship with his employer which resulted from the report was inherently unknowable until its contents were revealed to him and that he was blamelessly ignorant of the wrong which had been inflicted.

The plaintiff has cited no case in which the discovery rule has been applied to toll limitations in a libel case. It has often been held in other jurisdictions that failure of a claimant to discover facts concerning an alleged defamatory report does not postpone the running of a statute of limitations. E. g., Kern v. Hettinger, 303 F.2d 333, 338 (2d Cir. 1962); 50 Am.Jur.2d, Libel and Slander, supra. Though the Kentucky Court has not dealt specifically with an attempt to apply the discovery rule to an action for libel, it has held that Tomlinson represents an exception to the general rule "with its application being limited to malpractice cases." Caudill v. Arnett, 481 S.W.2d 668, 670 (Ky.1972). There are similarities between the conditions which plaintiff alleges and those of a patient who discovers an injury sometime after the medical treatment which produced it. If the highest court of Kentucky had not limited the application of the discovery rule plaintiff's argument might be persuasive. See, e. g., Armstrong v. Morgan, 545 S.W.2d 45, 47 (Tex.Civ.App.1977). However, the parties agree that the law of Kentucky controls, and we are not free to depart from it. Cf. Gates Rubber Company v. USM Corporation, 508 F.2d 603 (7th Cir. 1975). The fact that plaintiff did not learn of the alleged libel until some months after its publication was not sufficient, standing alone, to toll the statute.

The final contention of the plaintiff is that there was a material issue of fact before the court which precluded the entry of summary judgment. The amended complaint charged that the defendant deliberately and fraudulently concealed the alleged libelous report from him.

Deliberate concealment by a defendant of the plaintiff's cause of action will toll the statute of limitations. In Resthaven Memorial Cemetery v. Volk, 286 Ky. 291, 150 S.W.2d 908, 912 (1941), it was held that "when a wrongdoer intentionally conceals his unlawful act the statute of limitations begins to run when the person injured learns of the unlawful act rather than from the time of commission of the act." This rule has been applied to toll limitations in an action for damages against one who extended an underground coal mine beneath land of an adjoining owner and extracted coal therefrom, Falls Branch Coal Co. v. Proctor Coal Co., 203 Ky. 307, 262 S.W. 300 (1924); and in a wrongful death action where the decedent's widow was prevented from learning the identity of the owner of the hit-and-run vehicle which struck and killed her husband by failure of the owner to file an accident report. St. Clair v. Bardstown Transfer Line, 310 Ky. 776, 221 S.W.2d 679 (1949).

In each of the cited Kentucky cases the court found that the defendant had a duty to disclose his wrongful act to the person injured by it. In Falls Branch, supra, the court related the concealment rule to the doctrine of estoppel and held that failure of the trespasser to notify the adjoining owner of the trespass was constructive fraud. In Hackworth v. Hart, supra, 474 S.W.2d at 380, the court stated: "Ordinarily, unless the conduct of the defendant amounts to an absconding or concealment or obstructs the prosecution of the action it will not toll the running of the...

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