*1 (A) subsection is now 1006. Okl.Sess.L. § LOVELACE, 1768.) ch. 251 18 at Section 1006 Marian E. § Plaintiff-Appellant, upon multiple specifically orders
deals entry claims. authorize the It does not v. only portions some judgment a KEOHANE, Father Daniel C. Individual- determined,22 an entire claim are nor ly, Agent Employee and as multiple judgments does it sanction Roman Catholic Archdiocese of Okla- several are an action where claims City homa and the Di- Roman Catholic pressed. express In the absence of “an Tulsa; ocese of the Roman Catholic just determination that there is no reason City, Archdiocese of Oklahoma and the delay express for an direction for Tulsa, Roman Catholic Diocese of De- filing judgment,” adjudication fendants-Appellees. “one or more but than all fewer No. 74848. an action will not constitute a claims”in Supreme Court of Oklahoma. judgment.23 preserves 1006 thus Section 11, 1992. Feb. general in 12 rule—embodied O.S.1981 judgment Rehearing April 68124—that a must include the Dismissed 1992. § disposition of pressed all the claims in an prejudgment
action but allows orders that
dispose of an entire claim to severed trial review advance of
judgment. procedural In this manner our
regime protects against the unfairness that judgment if
would arise that is immedi
ately given party executable were to initially a setoff
on demand while the claim
pressed against party undec remained
ided.25 appeal.
I would dismiss this Convention, States, Fleming Baptist 22. See Tolson v. United 732 F.2d 25.See General (D.C.Cir.1984). J., concurring supra (Opala, note 16 at 1107 result). 1006, supra note § 23. See text of 21. supra of 12 24. For the terms O.S.1981 681 see note 2. *2 Associates, Beustring Grego-
Glenn R. & Williams, Tulsa, ry plaintiff-appel- for P. lant. Poe,
Covington & James E. Poe and Ste- Clouser, Tulsa, defendant-ap- phen R. for Keohane. pellee, Father Daniel C. Stuart, Knight, Wagner, & Wilkerson Lieber, Wilkerson, Tulsa, Stephen for C. defendants-appellees, Roman Catholic City Archdiocese of Okla. and the Roman Diocese of Tulsa. Catholic DOOLIN, Justice. Appeals
The United States Court of
two-part
the Tenth Circuit has certified
question of state
the decisive
law wherein
1)
“multiple person-
issues are: whether a
(MPD)
legal
constitutes a
ality disorder”
tolling
statute of limita-
disability thus
action,
personal injury
in a
tions
during
whether the
rule tolls the statute
alities
the incidents of sexual abuse
alleged clergical negli-
limitations in an
Father Keohane. Lovelace’s dominant
gence
case wherein
victim had no con-
personality
host
would not remember or
psy-
scious
of the incidents until
recall the incidents of sexual abuse.
chotherapy triggered recollection of the
Approximately
year
one
*3
after Father
allega-
sexual abuse? Under the factual
alleged
Keohane commenced his
sexual mo-
tions tendered for
review this case of
Lovelace,
lestations of
“some of her alter-
impression,
questions
first
we answer both
personalities attempted to take her life on
negative.
in the
several occasions.” As a result of her su-
attempts,
hospitalized
icide
Lovelace was
FACTUAL ALLEGATIONS
psychiatric
depression
a
ward
in 1968.
Plaintiff/appellant Marian E. Lovelace During
hospitalization,
her
Lovelace did not
(Lovelace)
sexually
by
abused
bio-
any
assume
sub-personali-
of her childlike
logical father from the time she was an ties, nor did she reveal
the incestuous
approximately
infant until she was
four-
by
abuse committed
her natural father.
years
teen
old. As a result of the incestu-
Father Keohane continued his form of
measure,
self-protecting
ous abuse and as a
therapy
sexual
on Lovelace when she was
MPD,
developed
Lovelace
a
which was not
psychiatric
released from her
treatment in
diagnosed
1980,
until
when Lovelace was
May of 1969. Lovelace left Oklahoma in
years
During
about 32 or 33
old.
the odi-
1970,
eventually
earned a Master’s De-
periods
abuse,
ous
of sexual
re-
Lovelace
gree
honors,
with
“highly
became a
gressed
state,”
“passive,
into a
trancelike
respected
social worker.”
dur-
and would become “childlike in nature.”
ing
year period,
this ten
Lovelace continued
Lovelace’s dominant
personality,
“host”
problems.
to suffer from mild mental
“Marian,” repressed memory
all
of the acts
of abuse while she was a' minor.
1980,
“psy-
Lovelace
that her
chological stability began
disintegrate
19,
age
following
At about the
around her.” She was “unable to work”
psycho-
father’s death in
continuing psychothera-
and she underwent
down,
logical repression broke
and she
py. Lovelace contends that her dissocia-
sought counselling
Defendant-appel-
from
disorder, MPD,
diagnosed
tive
was not
un-
Keohane, (Father
lee Father Daniel C.
Keo-
til
she or
because
one of her sub-
hane), concerning the incestuous abuse
personalities did not trust her male thera-
by
committed
her deceased father. At this
pist
begin
and feared
he
would
life, “underlying
time of her
sexual feel-
type
same
by
sexual abuse committed
ings
boys
beginning
towards
were
to stir in
Father Keohane.
personality,
Marian’s conscious
[and]
desires,
guilty
feelings
felt
these
about
Nevertheless,
time,
at that
Lovelace as-
they
because
were
conflict with her Ro-
sub-personali-
serts that she or one of her
man
teachings
Catholic faith and
finally
by
ties
revealed the sexual abuse
Additionally,
Church.”
deep
Lovelace “had
her natural father during
therapy
a
ses-
confusion,
rooted
terrorizing
anxieties and
years later,
April,
sion. Seven
touching
fears about
of her
report, concerning
“psy-
television news
body.”
sexually
girl
chiatrist who
molested a
on
During
years,
church,”
steps
triggered
the next three
from the
of a
another
fall of 1967 until late
sub-personality
Lovelace al-
to come
mem-
forward with
leged
sexually
ory
she was
seduced
Father
the sexual
advances committed
during
counseling
During
videotaped
Keohane
sessions.
Keohane.
Father
two
alleged
sessions,
psychotherapy
May
that Father Keohane’s
on
held
19, 1987,
began
fondling
through
sexual misconduct
Lovelace confirmed her
gradually proceeded
to an illicit relation-
of Father
af-
Keohane’s abuse
ship.
refuge,
As a source of
priest
Lovelace re-
ter she was told that the
had admit-
sub-person-
alleged
treated back into her ‘childlike’
ted to
sexual misconduct.
erty, except
forfeiture,
DISPOSITION
for a penalty
PROCEDURAL
or
be, at the time the cause of action ac-
complaint in the
Lovelace filed a
United
crued,
any legal disability,
under
every
for the Northern
District Court
Dis-
States
person
such
shall
be entitled to
May
on
1988 under
trict of Oklahoma
(1)
such action
year
within one
after such
(1976),
diversity
28 U.S.C.A. §
disability
removed,....
shall be
statute, seeking personal injury damages
stemming
clergical negligence
Although
term, legal
disability, had
Keohane,
Father
and the two dioceses with
Court,
not been defined
Supreme
this
which Father Keohane was affiliated dur-
the district court concluded that the nature
ing
alleged
sexual misconduct: The Ro-
of Lovelace’s
condition did not rise
man Catholic Archdiocese of Oklahoma
level,
such a
because Lovelace did not
City and The Roman
Diocese of
Catholic
*4
allege
manage
that she was
to
unable
her
Tulsa. All defendants moved to dismiss
estate,
business affairs or
or understand
12(b)(6)
Lovelace’s suit under Fed.R.Civ.P.
comprehend
and
the nature
legal
of her
upon
for failure to state a claim
which
rights of liabilities. Robertson v. Robert
granted.
may
relief
Defendants con-
son,
(Okla.1982),
654 P.2d
605-606
that,
law,
tended
as a matter of
Stith,
quoting
from Roberts v.
383 P.2d
clearly
action was
barred
Oklahoma’s
(Okla.1963).
18
(1981).
12
statute of limitations.
O.S. 95§
pertinent part:
in
provides
The statute
Alternatively, the district court first rea-
action,
recovery
Supreme
other than for the
soned this
Civil
Court would not invoke
only
brought
(see Discussion,
property
discovery
b,
of real
can
the
Part
following periods,
the
after the
in
infra)
type
within
this
of action which
accrued,
cause of action shall have
and memory
resulting
loss
psychological
from
not
Upon reviewing
afterwards:
trauma.
authori-
relevant
mental
tolled the statute of limitations.
memories of the acts of incest or of sexual
pists concerning
meaning of the
matter of law
leged
filed 20
Lovelace did
dence.
suffer
or verified affidavits
abuse
condition,
sis
96§
The federal district
Third. Within
not
action for
opposing
(1981).
arising
first
observing
by Father Keohane.
from a
$
In its
incapacity
years after
or her
defendants’ motions to
opined
injury
argued
This statute
sfc
not offer
abuse,
on
“legal disability”
tolling provisions
written
under
that Lovelace’s
her
contract,....
two
to the
that Lovelace did not
[*]
alleged repression
and/or
was time-barred
that her
court
alleged psychological
Oklahoma
(2)
any
order,
rights
initial acts
provides
[*]
years:
began
documentation
memory
of her thera-
of
underlying
within the
n
complaint,
of 12 O.S.
its
jurispru-
another,
dismiss,
...;
district
analy-
of
perti-
as a
loss
$
an
al-
of
foundation
sentation
ment
lace’s
precedential
observing that:
district court
the
proved
719 P.2d
v. Canadian
infliction of emotional distress.” Cf. Sloan
yet adopted
gence
also,
gence
ty, the district court next observed “that
the
1.200(C)(B),
“two-stage speculation
In
Civil
Sloan
injury
Supreme
dismiss Lovelace’s
(Okla.1988),
injury
occurred:
ap-
Law. Lovelace
barred under Oklahoma
contemporaneously
negli-
...
Ap-
pealed
the Tenth Circuit Court of
gent
statutory
begins
act.
time
[T]he
court,
appellate
“mind-
peals. The federal
damage
run when
or harm occurs as a
federalism,”
principles
comity
ful of
negligent
point
result
act. At that
Supreme
to this
Court.
certified the issues
one
cause
action arises
favor of
certification,
must,
resolving
we
as
this
regardless
who
harmed
whether
court, accept
factual
the district
did
injury
one
or
unaware
knows
including
Keohane’s ad-
allegations,
Father
*5
occurrence,
added.)
(emphasis
its
mission,
complaint
pleaded in Lovelace’s
as
speaking,
malprac-
Strictly
like the medical
Trading
true.
v.
Basin
Walker
Pacific
821,
plaintiff in Reynolds,
tice
760 P.2d at
(10th Cir.1976)(well-
Co.,
346
536 F.2d
“right
an action arose
Lovelace’s
sufficiency
pleaded
subjected to a
facts
though
at that
time even
then
12(b)(6)accepted
challenge under Rule
as
unaware of the harm she suffered.” As
true);
Corp. v.
Cayman Exploration
appellate
one of our
courts stated Moore
Co.,
Pipe
873 F.2d
United Gas
Line
Inc.,
Services,
Delivery
v.
618 P.2d
Cir.1989) (same).
(10th
1359
(Okla.Ct.App.1980):
409
ignorance
Mere
of the existence of a
DISCUSSION
constituting
cause of action
such on the
appeal to the Tenth Circuit Court of
On
part
person
of a
in whom a cause of
argued
Appeals, Lovelace
that her cause of
running
action
will not toll the
of the
lies
negligence against
Father Keo-
action
applies
statute of limitations. This
May,
until
hane did not accrue
1987. She
specifically provides
unless a statute
that
did not know she had been
contends she
begin
do not
to run until
the limitations
Keohane’s sex-
“injured,” and that Father
action
person
”
whom the cause of
injury.
her
ual molestations had “caused
it,
knowledge of
lies has actual
or unless
alleges she was not aware of the exist-
She
there has been fraudulent concealment
psychological inju-
or nature of her
ence
part
of the cause of action on the
ries,
is,
existence of at least ten
that
against
it lies.
person
whom
Keo-
sub-personalities, until after Father
Likewise,
we are not concerned with
May,
1987.
hane made his admissions
origin
mental condition. The
of Lovelace’s
support
find no
We
petition
no doubt
allegations of the
leave
argument that her cause of action accrued
wrongful
that
Keohane’s
conduct
Father
Father
upon Father Keohane’s admission.
actually
MPD.
did not
cause Lovelace’s
bearing on the
Keohane’s confession has no
prevented, except by her
Lovelace was not
cause of action. The
accrual of Lovelace’s
discovering condition from
own mental
applicable to Lovelace’s
period
limitations
aggravation of her mental
true cause and
years.
professional negligence action is two
disorder.
position, her actual
Contrary to Lovelace’s
complaint, Lovelace af-
injuries does not ex
In her amended
of all her
awareness
personality
dis-
firmatively
negligence claim from the run
empt her
any fault on
independently
arose
ning
limitations. For at
order
of the statute of
part
Father
Correctly discovery
cases,
Keohane.
rule to certain tort
stated,
gravamen
petition
of Lovelace’s
involving
actions
malpractice.
medical
See
wrongful
is that Father Keohane’s
conduct
Time-DC,
e.g.,
Inc.,
McDonald v.
aggravated
pre-existing
disorder.
(Okla.1989).
we
n.
allegation
There is no
that Father Keohane
not applied
discovery
rule in a
information,
concealed
or had other-
range
negligence
broad
Thus,
actions.
fraudulently prevented
wise
Lovelace from
whether the
apply
rule should
seeking psychiatric therapy
filing
or from
professional negligence
judicial
actions is a
period.
her suit within the limitations
determination which must be made on a
by
case
case basis.
Legal Disability
a.
In Tyson Tyson,
107 Wash.2d
The first certified issue is whether
(1986),
P.2d
Washington
Supreme
legal
Lovelace was under a “continuous”
Court,
Banc,
En
ques-
addressed a similar
disability from 1970 until 1980 or until
tion
certification from a federal dis-
April, 1987.
trict court. The Tyson court held that the
What the learned Federal Jurist meant
discovery rule does
“apply
not
to intention-
question
No. 1 is: If under the affliction
al torts where the victim has blocked the
legal
of MPD
capacity,
lacks
is its
incident from
memory during
her conscious
question
determination a
of fact or of law?
the entire time of the statute of limita-
pleadings
allegations presented
Tyson,
tions.”
Under the application is the that Lovelace is not entitled to invocation prerequisite tial to its rule. The factual recognizing informa- plaintiff’s lack of awareness justify not contrary tion does conclusion. extent of emotional harm. the cause and case, allegations In this complaint, acknowledges In her Lovelace satisfy cannot complaint show that she upon attaining majority, that she was to invoke the dis requirement minimum of the acts of well aware incestuous abuse covery rule. The rule does not and resultant emotional harm caused “(a) knowledge chargeable with plaintiff is biological father. Lovelace also admits ought to of facts which he have discovered prior that to Father Keohane’s sexual abus- diligence.” of reasonable the exercise es, actually she was aware of the Catholic Daugherty Cooperative v. Farmers teachings, and “believed that sexual (Okla.1984). Ass'n., touching outside of marriage was a mortal 950-951, P.2d at fur Daugherty, 689 we sin, lead to and would eternal damnation of that: ther observed allegations her soul.” The of Lovelace’s n limited, Properly discovery rule should complaint contradict her assertion that she encompass precept acquisition of that “blamelessly ignorant,” sup- had which, pursued, if sufficient information pressed all awareness her childhood sex- things would lead to the true condition of abuse, knowledge no ual and had of her knowledge held as sufficient to will be psychological problems concerning sexual running the statute of limita start relationships. allegation There is no tions. This rule obtains because rea repressed Lovelace somehow this informa- required sonably prudent person is per- tion from her conscious and dominant pursue diligence. his claim with Statutes sonality. conclude that We Lovelace was designed help of limitations were not functioning aware that her mental was dis- negligently pros those refrain from who turbed. ecuting plainly suggested by inquiries Although that she was the facts. unaware of Father Keohane’s abuse,
wrongdoing at the time of she con- experienced the statute purposes ‘For the of limita- cedes that later emotional tions, sub-personali- physical if the means of exist harm when her put attempted and the circumstances are such as to ties suicide. Lovelace knew not *7 suicide; however, upon inquiry, why attempted a man it she she is reasonable will be knowledge chargeable knowledge held that there was of with of her amnestic what readily by period diagnosed could ascertained she was as suffer- have been inquiry ing psychological depression and the limitation on the in late such general expressed may rule often in the stat- 1968. Lovelace out have blocked existing successfully memory ute is that cannot of the cause of her then but, up running aggravated injury; a matter of ... a bar to the of the and as [set law, chargeable if his failure to discover it is she is also statute] (ci- negligence.’ way in some attributable to his own of the fact that she was omitted). injured, “deep for she rooted confu- tations had sion, terrorizing fears.” anxieties and are reluctant to We reasonably Lovelace knew or should have of this rule under the facts case. harmed. known that she had been complaint by amended filed sets Lovelace 1970, in presentation concerning her Oklahoma out a of facts Even when she left aware that prior mental state and to the Lovelace that she was awareness admits functioning by was disturbed. alleged sexual molestations made Fa- mental Keohane, However, years, next 11 Love- including subsequent during ther behavior, allege “diligently” state that suicidal and her mental fol- lace does not psy- treatment of lowing relationship. sought any psychological the illicit sexual Al- therapy release from though prop- between her we consider all material facts chiatric
631 1969, disintegra- personalities, of the existence of other hospitalization in and stability any in 1980. psychological tion of but not have direct interaction with may not known what was may Lovelace them. Some be unaware of the harm, had an the cause of the but she fact existence of the other.... One or more opportunity to obligation and reasonable personalities may of the function awith diligence the actual cause discover with due degree adaption (e.g., reasonable of be inflicted aggravation and of the harm gainfully employed) alternating while her. personality clearly with another that is dysfunctional appears spe- or to have a appellate In her brief before the federal disorder_ cific personal- mental Each court, presented scholarly articles ity displays behaviors characteristic of and books about incestuous sexual abuse age. its sense of its stated and mental disorders. Lovelace extensive- mental, and ly psychological, discusses the Ass’n., Psychiatric Diagnostic American concerning pressures familial childhood and Manual of Mental Statistical Disorders explains the sexual trauma. Lovelace also 300.14, (3d at 269-70 ed. rev. disorders, development and of dissociative (DSM-III-R). question the We do not va MPD it relates to childhood the onset of as lidity legal psychiatric literature example, MPD For abuse. Lovelace, cited nor do we formulate by: characterized specific governing application person the existence of two or within rule to sexual abuse cases. personality personalities more distinct or we note that sexual abuse Personality states. is here defined as applied cases wherein the court the dis pattern perceiving, relatively enduring rule, plaintiff’s psycho claim of to, thinking relating about the envi- logical repression supported by was not ronment and one’s self that is exhibited literature, DSM-III-R, such as but corrobo range important social and a wide from at least one rated an affidavit Personality states personal contexts. treating psychological psychiatric or men only pattern differ in that is not e.g., therapist expert. tal health or See range in as wide a of contexts. exhibited Johnson, F.Supp. 701 Johnson v. cases, In classic there are at least two (N.D.Ill.1988), Schafer, Meiers-Post v. fully developed personalities; in other Mich.App. 427 N.W.2d 607- cases, may only there one distinct Hammer, (1988), and Hammer personality personality and one or more (1987). Wis.2d 418 N.W.2d cases, personalities states. In classic expert testi We do not mean personality unique states each have mony treating psychotherapist from a memories, patterns, social behavior claim actually plaintiff’s validate a would cases, may relationships; in other there But, expert such past sexual abuse. varying degrees sharing of memo- professional health testimony a mental or ries and commonalities behavior determining aid the trier of law would *8 of relationships.... social At lease two entitled to invoke whether the personalities, at some time and recur- the if discovery rule. Yet even the rently, person’s full take control treating testimony presented had per- one behavior. The transition from agree the district court psychotherapist, we usually sudden sonality to another is correctly predicted that this Court would minutes), but, (within rarely, seconds to par the discovery rule under not the (over hours and may gradual this case. ticular facts of days)_ may A also be elic- transition mind, in this deciding factor In our the by hypnosis or an amobarbital inter- ited knowledge in the means of case is that the personalities are aware of view. Often as to reveal the psychiatric field existed so varying some or all of the others mental disorder. symptoms of Lovelace’s experience the degrees, may and some inher- disorder was not friends, Lovelace’s mental companions, or adver- others as A.P.A., example, in For may ently unknowable. personalities aware saries. Some DSM-II, (1968), principal 300-14 I. sufficiently of MPD manifestations were The issue of when Lovelace discovered or developed recognized diagno- and to allow injury should have discovered her and its of, support and a connection sis between presents question cause for the trier of abuse, deeply Lovelace’s incestuous in- question fact. of whether an action “[T]he anxiety grained sexual and suicidal behav- is barred the statute of in limitations ior, symptoms and the of amnesia with her any particular case is one of fact where the also, development of a MPD. See World dispute.” facts are in Barrington v. Hem Organization, Health Manual of Interna- bree, 340, 341, 193 Okla. Diseases, Injuries, tional of Classification (1943). question disputed The fact in this (8th 1968). and of Death ed. Causes acquired matter is when Lovelace “suffi short, reasonably a MPD was knowable which, pursued, cient information if would alleged and discoverable had Lovelace that things lead to the true condition of ... sought psychiatric she diligently effective running start the of the statute of limita
therapy prior
disintegration
to the
of her
Daugherty
Coop.
tions.”
v. Farmers
psychological stability in 1980.
Ass’n,
(Okla.1984).
risk of stale claims and the unfairness of been allowed to her evidence to the precluding justifiable causes of action. trier of fact. asked,
When most courts have allowed
victims of sexual abuse benefit they repressed rule if have
memory of the traumatic events. Nico Carey,
lette v. (W.D.Mich. F.Supp. 751 695 law); v. (applying Michigan Johnson
Johnson, (N.D.Ill.1988) F.Supp. 701 1363 law); Evans v. Eckel
(applying Illinois
Stephen MERRILL, Appellant,
J.
man,
1609,
Cal.App.3d
Cal.Rptr.
216
265
D.,
Mary
(1990);
D. v. John
605
216 Cal.
v.
Sny
285,
(1989);
App.3d
Cal.Rptr.
264
633
COMMISSION,
TAX
OKLAHOMA
America, Inc.,
Boy
der v.
Scouts
205
Appellee.
1318,
Cal.App.3d
(1988);
Cal.Rptr.
253
156
No. 70649.
Carswell,
v.
1011,
DeRose
Cal.App.3d
196
(1987);
Cal.Rptr.
242
Callahan v.
368
Supreme Court of Oklahoma.
State,
(Iowa 1990);
(1986) (rule applies “objective verifia Kaiser v. Milli present);
ble evidence” is
man,
Wash.App.
50
(1987);
Hammer v.
142 Wis.2d
But see
(App.1987).
Baily v. (E.D.Pa. F.Supp.
1991) (applying law); Linda Pennsylvania
bury Lindabury, v. (Fla. So.2d Whatcott,
Dist.Ct.App.1989); Whatcott (Utah App.1990). See also
Petersen v. 106 Nev. (1990) (plaintiffs claim is not barred if convincing
there is clear and evidence of defendant).
sexual abuse named
policy underlying considerations the dis compel rule should the same result
for Lovelace.
Perhaps disturbing what most about
today’s majority pronouncement ap- is its
parent recognize MPD refusal to and other involving repression
conditions of the mem-
ory severely If traumatic events. alleges,
facts are as Lovelace this case is strongest imaginable in
one of the terms of
documentation of the abuse that occurred.
By refusing rule to facts, compelling majority
such a set opportunity
forecloses the for most victims pursue legal remedy
of sexual abuse to if
they repressed memory
traumatic events. Lovelace should have