West Virginia Undercuts Statute of Limitations Defense In Tort Actions
In its recent Dunn v. Rockwell decision, the West Virginia Supreme Court of Appeals significantly altered the application of the "discovery rule" regarding when a statute of limitations begins to accrue in a tort action. Since 1992, the law on this issue had flowed from Carte v. Marcum, in which the Court held:
Mere ignorance of the existence of a cause of action or of the identity of the wrongdoer does not prevent the running of the statute of limitations; the "discovery rule" applies only when there is a strong showing by the plaintiff that some action by the defendant prevented the plaintiff from knowing of the wrong at the time of the injury.
In Dunn, a 3-2 majority of the Court overruled Carte. According to Dunn's fifth syllabus point, a five-factor analysis must be undertaken when a defendant asserts a statute of limitations defense. First, the trial court must "identify the applicable statute of limitation for each cause of action" brought by the plaintiff. Then, either the trial court or the jury must "identify when the requisite elements of the cause of action occurred" and "when the plaintiff knew, or by the exercise of reasonable diligence should have known, of the elements of a possible cause of action." While identification of the applicable statute of limitations "is purely a question of law," these latter steps "will generally involve questions of material fact that will need to be resolved by the trier of fact."
Finally, before determining the viability of a statute of limitations defense, the finder of fact must "determine whether the defendant fraudulently concealed facts that prevented the plaintiff from discovering or pursuing the cause of action" and whether "the statute of limitation period was arrested by some other tolling doctrine." Again, these determinations "will generally involve questions of material fact that will need to be resolved by the trier of fact."
Prospectively, a defendant may find that Dunn effectively precludes it from prevailing as a matter of law on a statute of limitations defense. Because four of the five factors to consider "generally" involve questions of fact, such a defendant will likely have a difficult time convincing a trial court to rule on all five factors as a matter of law. While Dunn involved claims of legal malpractice and personal fraud and misrepresentation, nothing in the decision limits the new test to such claims. Instead, Dunn will likely be interpreted as applying to any statute of limitations defense asserted in any tort claim.
If you would like to obtain a copy of this decision or discuss its ramifications, please do not hesitate to contact William M. Harter or any of Frost Brown Todd's West Virginia-licensed attorneys.