Rodrigue v. VALCO Enterprises, Inc., No. 97-491.

• Docket Nº: No. 97-491.
• Citation: 726 A.2d 61
• Case Date: January 25, 1999
• Court: United States State Supreme Court of Vermont

726 A.2d 61

Maurice L. RODRIGUE
v.
VALCO ENTERPRISES, INC., d/b/a Valley's Steak House and Renee C. Valley

No. 97-491.

Supreme Court of Vermont.

January 25, 1999.

726 A.2d 62

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ

ENTRY ORDER

Plaintiff appeals the superior court's determination that his dram shop action was filed beyond the applicable limitations period. We affirm.

In the early evening hours of December 21, 1993, a driver rear-ended the car plaintiff was driving and left the scene of the accident without stopping. On February 14, 1994, following a police investigation of the accident, Peter Langmaid was arraigned on charges of (1) driving with a suspended license, fifth offense; (2) driving in a careless and negligent manner; and (3) leaving the scene of an accident. On March 19, 1996, plaintiff filed a complaint against VALCO Enterprises, Inc., d/b/a Valley's Steak House, and the business's owner, Rene C. Valley, alleging negligence, gross negligence, violation of Vermont's Dram Shop Act, 7 V.S.A. §§ 501-507, and fraudulent concealment. In October 1997, following a hearing, the superior court granted summary judgment to defendants, ruling that (1) plaintiff's dram shop claim accrued in February 1994, and thus was filed beyond the Dram Shop Act's two-year limitations period; (2) any fraudulent concealment on the part of Rene Valley did not toll the limitations period after the dram shop claim had accrued; and (3) the Dram Shop Act preempted plaintiff's common law negligence claims. On appeal, plaintiff argues that the court erred in dismissing his complaint because (1) his dram shop claim did not accrue until the fall of 1994 when he learned that Langmaid was overserved intoxicating liquor at Valley's Steak House; (2) Rene Valley's fraudulent concealment of the dram shop cause of action tolled the limitations period; and (3) the Dram Shop Act did not preempt his common law claims.

An action to recover damages under the Dram Shop Act "shall be commenced within two years after the cause of action accrues, and not after." 7 V.S.A. § 501(d). Injuries to the person are generally "deemed to accrue as of the date of the discovery of the injury." 12 V.S.A. § 512(4). At least in the context of professional malpractice cases, we have construed the "discovery rule" to commence the running of the statute of limitations "`only when a plaintiff discovers or reasonably should discover the injury, its cause, and the existence of a cause of action.'" Lillicrap v. Martin, 156 Vt. 165, 176, 591 A.2d 41, 47 (1989) (quoting Ware v. Gifford Mem'l Hosp., 664 F.Supp. 169, 171

726 A.2d 63

(D.Vt.1987)); cf. Graham v. Canadian Nat'l Ry., 749 F.Supp. 1300, 1317 (D.Vt.1990) (property owners' personal injury and property damage claims did not accrue under Vermont law until plaintiffs had valid reason to suspect that their injuries were caused by herbicides on their property). Plaintiff urges us to apply the same discovery rule here. Although they did not file a cross-appeal, defendants argue that the discovery rule as applied by the superior court in this case should be restricted to professional malpractice cases. See, e.g., Riojas v. Phillips Properties, Inc., 828 S.W.2d 18, 22-27 (Tex.App. 1991) (majority and dissent debate whether "legal injury rule" or "discovery rule" should be applied in dram shop cases). We need not resolve whether the discovery rule as set forth in Lillicrap should be applied in dram shop cases because, assuming that it should be, we uphold the superior court's determination that plaintiff's cause of action against defendants accrued in February 1994

By February 1994, plaintiff knew the extent of his personal injuries and the damage to his property caused by the accident. He knew that Langmaid was...