Custom Radio Corp., Custom Management Group, Inc., Richard Yarger and Robert O'Brien v. Actuaries & Benefit Consultants, Inc., and John M. Fogle, 2013 Ind. App. LEXIS 493

Appellants Custom Radio Corp., Custom Management Group, Inc., Richard Yarger, and Robert O’Brien received counseling from Appellees ABC and John Fogle from 1995 to 2006 regarding Welfare Benefit Plans funding buy-sell arrangements with cash value life insurance.
Plans were structured to qualify for tax deductions under 26 U.S.C. § 419(A)(f)(6); IRS final regulations in 2003 rendered such plans non-compliant and retroactively taxable.
IRS audits in 2007–2008 led to back tax assessments; settlements in October 2008 waived penalties in exchange for payment of back taxes and interest.
Appellants sued in 2010 alleging negligent provision of services and breach of oral contract; defendants moved for summary judgment claiming statute of limitations had run.
Trial court ruled accrual occurred by April 30, 2004, and granted summary judgment; appellate court reversed, concluding there are triable issues about when discovery could have occurred and remanded for trial on those facts.

Issue	Plaintiff's Argument	Defendant's Argument	Held
When does accrual occur under the discovery rule?	Accrual occurred on Oct. 20, 2008 (settlement).	Accrual occurred by Apr. 30, 2004 (or July 17, 2003) when non-compliance was known or should have been discovered.	Accrual occurs when damages are discoverable; fact issue exists whether knowledge was present by Apr. 30, 2004; summary judgment improper.
Did the trial court err in granting summary judgment on statute of limitations?	There are genuine facts about discovery timing that preclude invocation of statute of limitations.	The limitations period began no later than Apr. 30, 2004 and expired long before suit.	Yes; summary judgment reversed due to material fact issue on discovery timing.

Wehling v. Citizens Nat. Bank, 586 N.E.2d 840 (Ind. 1992) (discovery rule for accrual of both tort and contract claims)
Page v. Hines, 594 N.E.2d 485 (Ind. Ct. App. 1992) (damages need not be ascertainable for accrual if damage has occurred)
Del Vecchio v. Conseco, Inc., 788 N.E.2d 446 (Ind. Ct. App. 2003) (application of discovery rule to contract claims)
Shideler v. Dwyer, 417 N.E.2d 281 (Ind. 1981) (damage theory for accrual in tort matters)
Filip v. Block, 879 N.E.2d 1076 (Ind. Ct. App. 2008) (recognizes accrual when insureds could have discovered underinsurance)
Whorley, 891 N.E.2d 604 (Ind. Ct. App. 2008) (discovery of damages related to inheritance and breach timing)
Booth v. Commissioner, 108 T.C. 524 (Tax Ct. 1997) (IRS final regulations timing for tax-deductible contributions)