Otis v. Scientific Atlanta, Inc.

• Decision Date: 11 February 1981
• Docket Number: No. 20523,20523
• Citation: 612 S.W.2d 665
• Parties: Herbert C. OTIS, Jr. et al., Appellants, v. SCIENTIFIC ATLANTA, INC., Appellee.
• Court: Texas Court of Appeals

Page 665

612 S.W.2d 665

Herbert C. OTIS, Jr. et al., Appellants, v. SCIENTIFIC ATLANTA, INC., Appellee.

No. 20523.

Court of Civil Appeals of Texas, Dallas.

Feb. 11, 1981.

Rehearing Denied March 17, 1981.

J. Redwine Patterson, Patterson, Lamberty & Kelly, Inc., Dallas, for appellants.

R. Brent Cooper, Cowles, Sorrells, Patterson & Thompson, Dallas, for appellee.

Before AKIN, ROBERTSON and CARVER, JJ.

ROBERTSON, Justice.

This is an appeal from a summary judgment granted in favor of defendant Scientific Atlanta, Inc. Plaintiffs, Herbert Otis, his wife, and their daughter, sued Rollins Protective Services Company and others on February 17, 1978, for damages they sustained as the result of a fire at their home on February 23, 1976. These defendants had sold, or been involved in the manufacture of, a fire alarm system installed in plaintiffs' home. The alarm system failed to function properly and plaintiffs alleged that due to that failure, damage from the fire was more severe than it would have been had the alarm system functioned properly. On October 10, 1978 plaintiffs filed their third amended original petition in which Scientific Atlanta, the manufacturer of a component part of the alarm system, was added as a party. Defendant Scientific Atlanta filed its motion for summary judgment asserting that plaintiffs' cause of action was barred by limitations. The trial court granted the motion for summary judgment and severed the judgment entered in favor of Scientific Atlanta from the rest of the suit. Plaintiffs assert that because they did not know and could not have known through the exercise of reasonable diligence that defendant was responsible for the manufacture of the defective part of the system, the running of the statute of limitations should be tolled because their cause of action did not accrue until they discovered the identity of the party responsible for the cause of their injury. We do not agree and affirm.

The question presented turns on whether the discovery rule applies. Where the discovery rule is applicable, see Southwest Bank & Trust Co. v. Bankers Commercial Life Ins. Co., 563 S.W.2d 329 (Tex.Civ.App. Dallas 1978, writ ref'd n. r. e.), the statute of limitations does not begin to run until the cause of action is discovered, or until the plaintiff acquires such knowledge as would lead to its discovery if reasonable diligence were exercised. "The rule is not a plea of confession and avoidance of the statute of limitations but is the test to be applied in determining when a plaintiff's cause of action accrued." Weaver v. Witt, 561 S.W.2d 792, 794 (Tex.1977). In response to a motion for summary judgment, pleading facts which would make the discovery rule applicable effectively challenges the existence of limitations as a defense. Whatley v. National Bank of Commerce, 555 S.W.2d 500 (Tex.Civ.App. Dallas 1977, no writ).

Assuming that plaintiffs have asserted the type of action to which the discovery rule is applicable, they have not pleaded facts which challenge the existence of limitations as a defense in this case. Plaintiffs' argument, and pleading in their response, is that they did not know the identity of the party responsible for the cause of their injury. Plaintiffs do not assert that they did not know of the injury and they do not assert that they did not know of, or could not have discovered with the exercise of reasonable diligence, the cause of their injury. Plaintiffs knew on the date of the fire that they had been injured. Since plaintiffs discovered their injury on the date of the fire, limitations began to run on that date. Weaver v. Witt, supra. Because the facts pleaded by plaintiffs in response to d...