Leo v. Hillman

• Decision Date: 07 July 1995
• Docket Number: No. 93-621,93-621
• Citation: 665 A.2d 572,164 Vt. 94
• Parties: Patricia B. LEO, et al. v. Donald F. HILLMAN, et al.
• Court: Vermont Supreme Court

Page 572

665 A.2d 572

164 Vt. 94

Patricia B. LEO, et al. v. Donald F. HILLMAN, et al.

No. 93-621.

Supreme Court of Vermont.

July 7, 1995.

Motion for Reargument Denied Aug. 9, 1995.

Richard H. Munzing of Weber, Perra & Wilson, P.C., Brattleboro, for plaintiffs-appellants.

Robert S. DiPalma and April Shafer Johnson of Paul, Frank & Collins, Inc., Burlington, for defendants-appellees.

Before ALLEN, C.J., and DOOLEY, MORSE and JOHNSON, JJ.

ALLEN, Chief Justice.

Plaintiffs are family members of Judith Leo-Coneys, who was murdered by Francis Malinosky in 1979. They brought this action in 1992 against Dr. Donald F. Hillman and University Associates in Psychiatry, Inc. (UAIP), seeking damages for wrongful death and infliction of emotional distress, and for Judith Leo-Coneys's pain and suffering. Plaintiffs appeal from a summary judgment dismissing the wrongful death and emotional distress claims. Defendants Hillman and UAIP cross-appeal from the court's order denying summary judgment on the issues of a purported release in defendants' favor and survival claims on behalf of the victim. We affirm.

The complaint alleges that Judith Leo-Coneys had been involved in a romantic relationship with Francis Malinosky, which she ended in the summer of 1979. Malinosky became distraught and sought psychological treatment with defendant Hillman, a licensed psychologist employed by UAIP. Malinosky met with Hillman six times between September 4, 1979 and October 12, 1979, and in furtherance of the treatment, on October 18, 1979, Hillman met with both Malinosky and Leo-Coneys. That same evening Malinosky held Leo-Coneys at gunpoint until she agreed to reconcile with him. Leo-Coneys informed Hillman of the incident. On November 5, 1979, Leo-Coneys disappeared and was never seen alive again. Malinosky was considered a principal suspect and, about three weeks later, Malinosky also disappeared.

As trustee for the decedent, Patricia Leo filed suit against Malinosky in April 1980, alleging, inter alia, that he inflicted "great pain and suffering of body and mind, and on information and belief, the possible death of Judith Leo-Coneys." In September 1981, Leo, individually and as trustee for Leo-Coneys and guardian for Leo-Coneys's son, entered into a release agreement with Malinosky's legal representative, under which she agreed to discharge Malinosky from all future claims.

In April 1990, Malinosky was apprehended in California, then extradited to Vermont to stand trial for the murder of Leo-Coneys. Later that year, Malinosky entered into a plea agreement and led authorities to Leo-Coneys's body. Thereafter, Malinosky filed a written statement with the Chittenden Superior Court stating that he had shot and killed Leo-Coneys on November 5, 1979.

Leo was appointed administrator for Leo-Coneys's estate in August 1992. Plaintiffs filed the present action against Hillman and UAIP in September 1992, alleging wrongful death, reckless and negligent infliction of emotional distress, and a survival action for pain and suffering. Plaintiffs asserted that Hillman knew Malinosky posed a serious threat to Leo-Coneys but discouraged her from reporting the gun incident of October 18, 1979 to the authorities. Plaintiffs also alleged that Hillman knew or should have known that Malinosky was dangerous, but did nothing to confront Malinosky or to protect Leo-Coneys.

Defendants Hillman and UAIP moved for summary judgment. The court granted the motion as to the claims of wrongful death and for infliction of emotional distress but denied it as to plaintiffs' survival claims. The present appeal and cross-appeal followed.

I. Statute of Limitations Discovery Rule

Plaintiffs argue that the wrongful death claim is not barred under 14 V.S.A. § 1492(a), which states in relevant part that: "[s]uch action shall be brought in the name of the personal representative of such deceased person and commenced within two years from his decease...." The statute is clear on its face and therefore requires no additional interpretation. Burlington Elec. Dep't v. Vermont Dep't of Taxes, 154 Vt. 332, 335-36, 576 A.2d 450, 452 (1990). Section 1492(a) prescribes a limitation period that is necessarily determinable where facts are known and indisputable. 14 V.S.A. § 1492(a). Accordingly, a claim for wrongful death must be commenced within two years of the date of decedent's death. Despite the apparent clarity of this reading, plaintiffs argue that the court should have read § 1492(a) to include a proviso that the cause of action does not accrue until discovery of deceased person's death, similar to the discovery proviso in 12 V.S.A. § 512(4), which provides that actions for personal injury shall be commenced within three years after the date of the discovery of the injury.

In Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 526, 496 A.2d 154, 160 (1985), we overruled Murray v. Allen, 103 Vt. 373, 376, 154 A. 678, 679 (1931), which held that a cause of action in tort accrues at the time of the last negligent act attributable to the defendant. Cavanaugh held that the "term 'accrue' should be given a uniform meaning, regardless of when any particular cause of action actually arose," id. at 522, 496 A.2d at 158, and that a cause of action accrues on the date of discovery of the underlying injury. Id. at 526, 496 A.2d at 160. In University of Vermont v. W.R. Grace & Co., 152 Vt. 287, 290, 565 A.2d 1354, 1357 (1989), we applied the discovery rule to the statute of limitation periods under 12 V.S.A. § 511, which are triggered by accrual of an action, but contain no explicit discovery rule. ¹

Plaintiffs incorrectly argue Cavanaugh and W.R. Grace require reading a discovery rule into every limitations provision within Vermont law. We did not hold in either Cavanaugh or W.R. Grace that every limitations statute must be construed in terms of when an action "accrues"--implying the need to ascertain a subsidiary fact in order to apply the limitations formula to a given provision. Cavanaugh said that the word "accrue" should be given a uniform meaning wherever it appears. Cavanaugh, 145 Vt. at 522, 496 A.2d at 158. Thus, the date of accrual could arise as an issue in any of the myriad of statutes in which the limitations period runs from the accrual date. ²

The date of accrual in a wrongful death action under § 1492(a) is a determinable fact, and the statutory language, as in numerous other limitations provisions, ³ does not invite further inquiry. In sum, in construing a statute that bases the commencement of a limitations period upon a determinable fact and does not state or imply the need to determine accrual of an action extrinsically, we must apply its plain language and resist the temptation to adjust the law on the basis of specific cases. As the court stated in Stiles v. Union Carbide Corp.:

In the absence of legislative definition and specification, the question when a cause of action accrues is a judicial one; courts are called upon to fashion general rules of accrual to effectuate the policy of repose underlying statutes of limitations without permitting unnecessary injustices.... Where, however, as in [the wrongful death statute of limitations], the Legislature has clearly and unequivocally prescribed that a cause of action accrues on the occurrence of a specified event, the courts are without power to fashion a different rule for determining when a cause of action accrues.

520 F.Supp. 865, 868 (S.D.Tex.1981). Applying the same standard, we hold that § 1492(a) is clear on its face and neither states nor implies a discovery rule. The trial court's holding on this question is affirmed, and we have no occasion to consider the court's determination that plaintiffs' action was tardy even if a discovery rule were to be applied. A great majority of courts in other jurisdictions have interpreted wrongful death statutes similar to Vermont's in a manner consistent with today's holding. See, e.g., Tennimon v. Bell Helicopter Textron, Inc., 823 F.2d 68, 72-73 (5th Cir.1987) (applying Texas law); Shover v. Cordis Corp., 61 Ohio St.3d 213, 574 N.E.2d 457, 459-60 (1991); Pobieglo v. Monsanto Co., 402 Mass. 112, 521 N.E.2d 728, 732-33 (1988); Ness v. St. Aloisius Hospital, 301 N.W.2d 647, 652 (N.D.1981).

Plaintiffs contend that none of the cases in which courts have declined to apply a discovery rule to limitations provisions in wrongful death actions involved decedents' bodies that were missing at the beginning of the stated limitations period. However appealing the argument for such an exception, the General Assembly has never chosen to import an accrual analysis into the limitations period applicable to wrongful death actions, though it has clearly been aware of tolling issues. See, e.g., 14 V.S.A. § 1492(a) (tolling the running of the statute while defendant is out of state); 12 V.S.A. § 518(a) (latent development injury claim must be brought within three years "after the person suffering the injury has knowledge or ought reasonably to have knowledge of having suffered the injury").

Plaintiffs also assert that "the Vermont wrongful death act incorporates the concept of accrual, because the word 'accrues' appears three times in 14 V.S.A. § 1492." All such references, however, are to defendants who are out of state when the wrongful death action accrues. Plaintiffs appear to give the word "accrues" talismanic value--if it appears in a statute, then a discovery rule is affixed to the statute. Defendants do not contend that a wrongful death action does not "accrue." They argue, and we agree, that § 1492(a) fixes the accrual date so that discovery can never be an issue.

Finally, plaintiffs argue that the personal representative and the chief beneficiary of the estate are, or should be, alter egos. They claim that under 12 V.S.A. § 551, the running of the limitations period in § 1492(a) is tolled as to the chief beneficiary of Leo-Coneys's estate, her son, who was and is still a...