Miller v. Monongalia County Bd. of Educ.

• Decision Date: 14 November 2001
• Docket Number: No. 29695.,29695.
• Citation: 210 W.Va. 147,556 S.E.2d 427
• Parties: Erika L. MILLER, Plaintiff Below, Appellant v. MONONGALIA COUNTY BOARD OF EDUCATION, A Political Subdivision, John Doe and Jane Doe, Defendants Below, Appellees
• Court: West Virginia Supreme Court

556 S.E.2d 427

210 W.Va. 147

Erika L. MILLER, Plaintiff Below, Appellant v.MONONGALIA COUNTY BOARD OF EDUCATION, A Political Subdivision, John Doe and Jane Doe, Defendants Below, Appellees

No. 29695.

Supreme Court of Appeals of West Virginia.

Submitted September 19, 2001.

Decided November 14, 2001.

Concurring Opinion of Justice Starcher December 13, 2001.

Wesley W. Metheney, Esq., Paul T. Farrell, Jr., Esq., Wilson, Frame, Benninger & Metheney, Morgantown, West Virginia, Attorneys for Plaintiff Below, Appellant.

Nancy W. Brown, Esq., Rodney L. Bean, Esq., Steptoe & Johnson, Clarksburg, West Virginia, Attorneys for Defendants Below, Appellees.

MAYNARD, Justice:

The appellant, Erika L. Miller, contends the Circuit Court of Monongalia County erred by dismissing her complaint against the Monongalia County Board of Education by order entered on January 16, 2001.She believes the discovery rule applies to the general statute of limitations referenced in W.Va.Code § 55-2-15(1923).We agree and reverse.

I.FACTS

The appellant instituted this civil action against the Monongalia County Board of Education(Board) due to alleged conduct of the Board which occurred independent of the crimes committed by Donald McIntosh, a middle school teacher employed by the Board.During the 1989-90 school year, the appellant was enrolled as a student in McIntosh's class at South Junior High School.McIntosh possessed a lustful disposition toward children and targeted the appellant as a victim.The teacher began intentionally misgrading the appellant's tests and asked her to stay after school to retake the exams for extra credit.During these after-school sessions, McIntosh offered Miller the opportunity to retake the exams only if she would ride with him to collect newspaper route fees.McIntosh began fondling the appellant as she rode with him in his automobile.The sexual abuse inflicted upon the appellant ended when she graduated from ninth grade and enrolled in high school the following academic year.

McIntosh was subsequently convicted of three counts of third degree sexual assault.The convictions were affirmed by this Court in State v. McIntosh,207 W.Va. 561, 534 S.E.2d 757(2000).The appellant then filed this civil action seeking to hold the Board legally responsible for the injuries and damages she sustained as a minor.¹She accused the Board of negligently failing to protect her from the sexual abuse inflicted upon her by McIntosh.She contends an investigation conducted by her counsel following McIntosh's criminal trial and appeal revealed the Board failed to report McIntosh's sexual deviant behavior to the appropriate authorities; fraudulently concealed material facts regarding the Board's involvement and knowledge of the sexual misconduct; destroyed documentary evidence of alleged sexual deviant behavior in McIntosh's personnel file; transferred McIntosh between school districts in an effort to obfuscate the sexual deviant behavior; and continued to provide McIntosh with unfettered and unsupervised access to the school children in the county.

The Board filed a motion to dismiss,² or in the alternative, a motion for summary judgment³ stating that the statute of limitations had expired.After hearing arguments of counsel and studying relevant legal authority, the circuit court determined that "`[t]he plain language of West Virginia Code § 55-2-15(1923)(Repl.Vol.1994) clearly prohibits the application of the discovery rule to extend the statutory filing periods provided by this section.'Syl. Pt. 5 Albright v. White, [202 W.Va. 292, 503 S.E.2d 860(1998)]."The court dismissed the complaint by order entered on January 16, 2001.The appellant appeals from this order.

II.STANDARD OF REVIEW

"Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo."Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, 194 W.Va. 770, 461 S.E.2d 516(1995).In order to determine whether the circuit court properly granted dismissal, the appellant requests that we interpret W.Va. Code § 55-2-15 to ascertain whether the discovery rule may apply to extend the statute of limitations.`"` "Where the issue on an appeal from the circuit court is clearly a question of law or involving the interpretation of a statute, we apply a de novo standard of review.'Syllabus point 1, Chrystal R.M. v. Charlie A.L.,194 W.Va. 138, 459 S.E.2d 415(1995)."Syllabus point 1, University of West Virginia Board of Trustees ex rel. West Virginia University v. Fox,197 W.Va. 91, 475 S.E.2d 91(1996).'Syllabus point 3, Ewing v. Board of Education of County of Summers,202 W.Va. 228, 503 S.E.2d 541(1998)."Syllabus Point 2, Albright v. White, 202 W.Va. 292, 503 S.E.2d 860(1998).

III.DISCUSSION

On appeal, the appellant contends the circuit court erred by concluding that the plain language of W.Va.Code § 55-2-15 prohibits the application of the discovery rule to a civil action instituted prior to the expiration of the twenty year statute of repose and, thereby, wrongfully dismissed the complaint.The Board maintains that the circuit court was indeed correct in determining that the discovery rule does not apply to save Miller's claim from the running of the statute of limitations.We believe the discovery rule applies to extend the general statute of limitations referred to in W.Va.Code § 55-2-15(1923) when the cause of action accrues during the appellant's infancy and the appellant alleges in his or her complaint that the appellee fraudulently concealed material facts.

The specific statute of limitations which applies to the appellant's cause of action reads as follows:

If any person to whom the right accrues to bring any such personal action [or] suit... shall be, at the time the same accrues, an infant or insane, the same may be brought within the like number of years after his becoming of full age or sane that is allowed to a person having no such impediment to bring the same after the right accrues, or after such acknowledgment as is mentioned in section eight [§ 55-2-8] of this article, except that it shall in no case be brought after twenty years from the time the right accrues.

W.Va.Code § 55-2-15(1923).The general statute of limitations referred to in this code section is contained in W.Va.Code § 55-2-12(b)(1959) and states in pertinent part, "Every personal action for which no limitation is otherwise prescribed shall be brought:...(b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries[.]"

The appellant was fourteen years old at the time McIntosh inflicted sexual abuse upon her during the 1989-90 school year.She was clearly under the disability of age at the time her cause of action accrued.Therefore, the statute of limitations was tolled until she turned eighteen and the disability of age was removed in 1993.She failed to file her action within the following two years.Instead, the appellant filed her complaint against the Board on September 29, 2000, ten years after her cause of action accrued and almost seven years after the disability was removed.In fact, the appellant celebrated her twenty-fifth birthday two weeks after the complaint was filed.⁴It is indisputable that the complaint in this case was filed outside of the two-year statute of limitations but inside of the twenty-year statute of repose.

This Court discussed a similar statute of limitations problem in Albright v. White,202 W.Va. 292, 503 S.E.2d 860(1998).However, the facts in Albright are distinguishable from the facts in the case presently before us.Albright underwent therapy in 1994.During the therapy sessions, he claimed that he remembered an incident of sexual abuse allegedly perpetrated by an Episcopal priest twenty-five years earlier in 1969.Albright declared that he subsequently learned information which indicated the Protestant Episcopal Church in the Diocese of West Virginia may have known about the priest's alleged proclivity for deviant sexual behavior.He alleged that the church failed to alert its parishioners of the potential danger to their children.Albright filed a lawsuit in 1996 charging the priest and the church with, inter alia, fraudulent concealment.The church and the priest filed motions to dismiss asserting the claims were time barred.The circuit court granted the motions.Albright appealed, arguing that the two year statute of limitations should not begin to run until he recalled the alleged tortious conduct in 1994.

Commenting on W.Va.Code § 55-2-15, this Court determined that in order to maintain a viable and timely action when a cause of action accrues during infancy, the lawsuit must be filed "(1) within two years after he/she has attained the age of majority and (2) within twenty years of the date of the wrongful act and the injury."Id.,202 W.Va. at 302,503 S.E.2d at 870.Albright argued the discovery rule should apply to extend the statutory filing period.This Court decisively stated, "[W]e previously have determined that a `clear statutory prohibition' exists to preclude the application of the discovery rule in suits governed by W.Va.Code § 55-2-15."Id.,202 W.Va. at 303,503 S.E.2d at 871.The Court went on to hold in Syllabus Point 5, "The plain language of W.Va.Code § 55-2-15(1923)(Repl.Vol.1994) clearly prohibits the application of the discovery rule to extend the statutory filing periods provided by this section."

Because Albright filed his action twenty-five years after the alleged abuse occurred, this Court determined the lawsuit was governed by the time limits contained in W.Va. Code 55-2-15 and that resort to W.Va.Code § 55-2-12(b) was unnecessary.No opinion was offered in Albright regarding whether the claim would also be barred by the limitation period contained in 55-2-12(b).SeeAlbright,202 W.Va. at 306 n. 18, 503 S.E.2d at 874 n. 18("Having resolved the case before us by...