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Discovery Rule: Has the Statute Run?
Statutes of limitations serve the practical purpose of preventing stale claims and forcing those who have been wronged to assert their rights in a timely manner. As limitations is an affirmative defense that may be waived, the burden of proof is on the defendant to show a case is barred by a statute of limitations. See, 12 O.S. §2008(C)(18); OUJI No. 1.20, Digital Design Group, Inc. v. Information Builders, Inc., 2001 OK 21, 24 P.3d 834, 842 (libel when publication likely to be concealed from plaintiff); Harper-Turner Oil Company v. Bridge, 1957 OK 124, 311 P.2d 947, 949 (damage caused by oil well). Any exceptions to limitations are strictly construed. Resolution Trust Corp. v. Grant, 1995 OK 68, 901 P.2d 807, 813 (corporate fraud).
Rule of Injury Versus Rule of Discovery
A right to sue for negligence usually accrues at the time of the wrongful act if the “rule of injury” applies. McVay v. Rollings Construction, Inc., 1991 OK 102, 820 P.2d 1331, 1332 (failure to reconnect sewer). There are also statutes of repose that limit the time in which a cause of action may arise. Reynolds v. Porter, 1988 OK 88, 760 P.2d 816, 820 (medical malpractice). Then, there are situations in which accrual of a claim is delayed until persons know or should know of their injuries — the “rule of discovery” or the “awareness doctrine”, an equitable concept that may arise by statute or common law. Id.
“The discovery rule encompasses the precept that acquisition of sufficient information which, if pursued, would lead to the true condition of things is sufficient to start the running of the statute. A reasonably prudent person is required to pursue his claim with diligence. Statutes of limitations were not designed to help those who refrain from prosecuting inquiries plainly suggested by the facts, and thus the Plaintiff is chargeable with knowledge of facts which he ought to have discovered in the exercise of diligence.” Queri v. Midwest City Memorial Hospital, 1992 OK CIV APP 122, 839 P.2d 688, 690 (foreign object in surgery site); Daugherty v. Farmers Co-op. Association, 1984 OK 72, 689 P.2d 947, 950-951 (pesticide products liability). “Under the discovery rule, an essential prerequisite to its application is the plaintiff’s lack of awareness in recognizing the cause and extent of [the] harm.” Lovelace v. Keohane, 1992 OK 24, 831 P.2d 624, 630 (sexual abuse by priest); Weathers v. Fulgenzi, 1994 OK 119, 884 P.2d 538, 542 (sexual encounter with a therapist ). Although sometimes based on fraudulent concealment, the rule does not necessarily require fraud. Samuel Roberts Noble Foundation, Inc. v. Vick, 1992 OK 140, 840 P.2d 619, 624 (construction defects).
Mere Ignorance Insufficient
A person cannot rely on mere ignorance. Williams v. Borden, Inc., 637 F.2d 731, 734 (10th Cir. 1980) (products liability – inhalation of PVC fumes). “This … applies unless a statute specifically provides that the limitations do not begin to run until the person in whom the cause of action lies has actual knowledge of it, or unless there has been fraudulent concealment of the cause of action on the part of the person against whom it lies.” Moore v. Delivery Services Inc., 1980 OK CIV APP 38, 618 P.2d 408, 409 (discovery of injuries more than four months after an automobile accident).
If persons know of their injuries and their cause, the discovery rule will not apply based on their not knowing the seriousness of the injury. Kang v. Kang, 2000 OK CIV APP 89, 11 P.3d 218, 219 (assault-and-battery victim did not know injuries permanent).
Medical Negligence Statute
Under the medical malpractice statute, 76 O.S. §18, which includes a discovery provision, the time to sue does not begin until the damage or harm occurs. “… [T]he act and the resulting injury are distinct and separate.” Reynolds, 760 P.2d at 821; see, Gallagher v. Enid Regional Hospital, 1995 OK 137, 910 P.2d 984, 985-986 (inappropriate psychiatric treatment; applicability of rule a jury question); Graham v. Keuchel, 1993 OK 6, 847 P.2d 342, 366 (informing patient of consequences of Rh factor).
Another statute permitting application of the discovery rule is 12 O.S. §95(6) & (7) for sexual misconduct (Lovelace, 831 P.2d at 628, 630). But where the Oklahoma Combined Pesticide Law, 2 O.S.2001 § 3-82 (H), required prior filing of a complaint with the Department of Agriculture, it did not authorize any delay in meeting the limitations deadline. Brown v. Rocky Farmers Co-op., Inc., 2005 OK CIV APP 52, 118 P.3d 214, 215. Workers’ compensation statutes do not permit use of the discovery rule except in cases of asbestosis, silicosis or nuclear radiation injury, in which limitations start to run when a symptom or condition is diagnosable by a doctor. 85 O.S. §43(A); Wilkins v. Atlantic Richfield Co., 2002 OK CIV APP 76, 51 P.3d 595, 596 (date-of-manifestation test for enumerated conditions); McDonald v. Time-DC, Inc., 1989 OK 76, 773 P.2d 1252, 1258 (single-event injury in auto collision); Sneed v. McDonnell Douglas, 1999 OK 84, 991 P.2d 1001, 1005 (cumulative trauma claim brought more than 2 years after last exposure); White v. Weyerhaeuser Co., 1990 OK 98, 798 P.2d 623 (5-year limitations for request for final determination in single-event injury).
Application to Tort Actions
The discovery rule applies to some torts but not to contract actions. See, Jaworsky v. Frolich, 1992 OK 157, 850 P.2d 1052, 1054 (breach of warranty); Kiamichi Electric Co-op. v. Underwood, 1992 OK CIV APP 72, 842 P.2d 358, 359 (installment contracts). The rule applies in only certain kinds of negligence cases. Sloan v. Canadian Valley Animal Clinic, Inc., 1985 OK CIV APP 39, 719 P.2d 474, 475 (animal clinic volunteer developed Brucellosis).
For cases discussing the rule in relation to torts, see: Adoption and child custody: In re Adoption of M.J.S., 2007 OK 43, 162 P.3d 200, 202 (3-month period challenging final decree of adoption); Wade v. Geren, 1987 OK 81, 743 P.2d 1070, 1073 (vacation of adoption); Miller v. Miller, 1998 OK 24, 956 P.2d 887, 896 (fraudulent representations of paternity). Bad faith: Miller v. Liberty Mutual Fire Ins. Co., 2008 OK CIV APP 65, 191 P.3d 1221, 1227 (low-ball offer in uninsured motorist case). Construction defects: Smith v. Johnston, 1978 OK 142, 591 P.2d 1260, 1263-64 (improper wiring); McVay, 820 P.2d at 1332; Lee v. Phillips & Lomax Agency, Inc., 2000 OK 65, 11 P.3d 632, 634 (negligent repair of roof); MBA Commercial Construction, Inc. v. Roy J. Hannaford Co., Inc., 1991 OK 87, 818 P.2d 469, 475 (error in architectural plans). Fraud by corporate officers: Resolution Trust, 901 P.2d at 811 (“adverse domination doctrine”). Fraudulent concealment: Szczepka v. Weaver, 1997 OK CIV APP 35, 942 P.2d 247, 248 (false notarization of a deed); Smith v. Baptist Foundation of Oklahoma, 2002 OK 57, 50 P.3d 1132, 1137-1138 (fraud by trustee); Tice v. Pennington, 2001 OK CIV APP 95, 30 P.3d 1164, 1169 (state hospital’s withholding facts regarding conflicting blood types); McCarroll v. Doctors General Hospital, 1983 OK 54, 664 P.2d 382, 384 (concealment that femoral artery severed); Lancaster v. Hale, 2007 OK CIV APP 9, 152 P.3d 890, 892 (doctor’s statement that pain from shorter leg was normal); Redwine v. Baptist Medical Center of Oklahoma Inc., 1983 OK 55, 679 P.2d 1293, 1295 (statement that death in surgery was “one of those things”); Seitz v. Jones, 1961 OK 283, 370 P.2d 300, 302 (needle left in body); Public Service Co. of Oklahoma v. Norris Sucker Rods, 1995 OK CIV APP 101, 917 P.2d 992, 996 (equitable power of Corporation Commission in enforcing rules). Libel: Digital Design, 24 P.3d at 842. Products liability: Daugherty, 689 P.2d at 951; Williams, 637 F.2d at 734. Professional negligence: Lovelace, 831 P.2d at 629 (determined on a “case by case basis”); Resolution Trust, 901 P.2d at 813; Funnell v. Jones, 1985 OK 73, 737 P.2d 105, 107 (legal malpractice); Ranier v. Stuart & Freida P.C., 1994 OK CIV APP 155, 887 P.2d 339, 343 (legal malpractice when damages reasonably ascertainable); Smith v. Layon, 2007 OK CIV APP 98, 70 P.3d 1046, 1047 (legal malpractice in personal injury action). Real estate: Harper-Turner, 311 P.2d at 949; Continental Oil Co. v. Williams, 1952 OK 303, 250 P.2d 439, 441 (pollution of a stream); Lincoln Bank and Trust Co. v. Neustadt, 1996 OK CIV APP 10, 917 P.2d 1005, 1008 (right to lateral support); N.C. Corff Partnership, Ltd. v. Oxy USA, Inc., 1996 OK CIV APP 92, 929 P.2d 288, 293-294 (nuisance, groundwater contamination). Recovery of stolen property: In re 1973 John Deere 4030 Tractor, 1991 OK 79, 816 P.2d 1126, 1134 (good-faith purchase of stolen tractor); Kordis v. Kordis, 2001 OK 99, 37 P.3d 866, 869 (f.n. 3) (conversion of personal property).
Finding the Evidence
A jury’s determination of whether the discovery rule applies is obviously going to depend on facts specific to the situation. We all prefer cases clearly brought within the normal limitations period, but when that is impossible, it is time to start gathering evidence of when the plaintiff reasonably should have known of the harm. Reading the cases is only a start to knowing what will be required.
–Lynn Brusin Mares