Lead Opinion
Thе appellant, Erika L. Miller, contends the Circuit Court of Monongalia County erred by dismissing her complaint against the Monongalia County Board of Education by order entered on January 16, 2001. She believes the discovery rule applies to the general statute of limitations referenced in W.Va.Code § 55-2-15 (1923). We agree and reverse.
I.
FACTS
The appellant instituted this civil action against the Monongalia County Board of Eduсation (Board) due to alleged conduct of the Board which occurred independent of the crimes committed by Donald McIntosh, a
McIntosh was subsequently convicted of three counts of third degree sexual assault. The convictions were affirmed by this Court in State v. McIntosh,
The Board filed a motion to dismiss,
II.
STANDARD OF REVIEW
“Appellatе review of a circuit court’s order granting a motion to dismiss a complaint is de novo.” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick,
III.
DISCUSSION
On appeal, the appellant contends the circuit court erred by concluding that the
The specific statute of limitations which applies to the appellant’s cause of action reads as follows:
If any person to whom the right accrues to bring any such personal action [or] suit ... shall be, at the time the same accrues, an infant or insane, the same may be brought within the like number of years after his becoming of full age or sane that is allowed to a person having no such impediment to bring the same after the right accrues, or after such acknowledgment as is mentioned in section eight [§ 55-2-8] of this article, except that it shall in no case be brought after twenty years from the time the right accrues.
W.Va.Code § 55-2-15 (1923). The general statute of limitations referred to in this code sеction is contained in W.Va.Code § 55-2-12(b) (1959) and states in pertinent part, “Every personal action for which no limitation is otherwise prescribed shall be brought: ... (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries[.]”
The appellant was fourteen years old at the time McIntosh inflicted sexual abuse upon her during the 1989-90 school year. She was clearly under the disаbility of age at the time her cause of action accrued. Therefore, the statute of limitations was tolled until she turned eighteen and the disability of age was removed in 1993. She failed to file her action within the following two years. Instead, the appellant filed her complaint against the Board on September 29, 2000, ten years after her cause of action accrued and almost seven years аfter the disability was removed. In fact, the appellant celebrated her twenty-fifth birthday two weeks after the complaint was filed.
This Court discussed a similar statute of limitations problem in Albright v. White,
Commenting on W.Va.Code § 55-2-15, this Court determined that in order to maintain a viable and timely action when a cause of action accrues during infancy, the lawsuit must be filed “(1) within two years after he/she has attained the age of majority and (2) within twenty years of the date of the wrongful act and the injury.” Id.,
Because Albright filed his action twenty-five years after the alleged аbuse occurred, this Court determined the lawsuit was governed by the time limits contained in W.Va. Code 55-2-15 and that resort to W.Va.Code § 55-2-12(b) was unnecessary. No opinion was offered in Albright regarding whether the claim would also be barred by the limitation period contained in 55-2-12(b). See Albright,
Miller filed her action before the twenty year statute expired; therefore, we must now answer the question left unanswered by Albright. We must determine whether the discovery rule can for any reason toll the running of the 55-2-12(b) statute of limitations. We begin with the proposition that “[t]he ‘discovery rule’ is generally applicable to all torts, unless there is a clear statutory prohibition of its application.” Syllabus Point 2, Cart v. Marcum,
Mere ignorance of the existence of a сause 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.
Syllabus Point 3, id. (emphasis added). Stated another way,
The statute of limitations in a tort action begins to run ordinarily from the date of the injury, and the mere lack of knowledge of the aсtionable wrong ordinarily does not suspend the running of the statute of limitations, nor does the silence of the wrongdoer, unless he or she has done something to prevent discovery of the wrong.
Sattler v. Bailey,
Actions of the defendant which might prevent a plaintiff “from knowing of the claim at the time of the injury” include “fraudulent concealment, inability to comprehend the injury, or other extreme hardship[.]” Cart,
In the present action, the appellant alleged in her complaint that the Board had actual or constructive notice that McIntosh was a sexual predator who was engaging in inappropriate sexual conduct with female school children. She alleged that the Board had reasonable cause to suspect that, prior to becoming a victim herself, another child was being abused by McIntosh but the Board failed to report the abuse to the appropriate officials or to take any action to stop McIntosh. She also alleged that the Board frаudulently concealed material facts regarding its own involvement in and knowledge of the sexual misconduct of McIntosh in an effort to prevent the victims from instituting civil actions. We believe these allegations are sufficient to withstand the motion to dismiss based upon the statute of limitations.
Let us reiterate that Miller, the victim in this case, clearly asserted in her complaint that the Board engaged in conduct аmounting to active and purposeful fraudulent con
Also, on occasion, the child is confused аbout the exact identity of the wrongdoer and, again, wrongly internalizes guilt, blame, or culpability. These children do not know whether they should tell someone about the abuse or not. They are fearful, confused, and uncertain, and commonly remain so for year's after the statute of limitations has run. It would be a cruel system indeed that did not consider such factors in reaching a just and fair result in this arena of litigation.
We, thеrefore, hold that the general statute of limitations contained in W.Va. Code § 55-2-12(b) (1959) is tolled with respect to an undiscovered wrongdoer by virtue of fraudulent concealment when the cause of action accrues during a victim’s infancy and the injured person alleges in his or her complaint that the wrongdoer fraudulently concealed material facts. The statute begins to run when the injured person knows, or by thе exercise of reasonable diligence should know, the nature of his or her injury, and determining that point in time is a question of fact for the jury. However, pursuant to W.Va.Code § 55-2-15 (1923), no ease may be brought after twenty years from the time the right accrues.
We believe Miller’s complaint stated allegations of fraudulent concealment sufficient to invoke the tolling doctrine and survive a motion to dismiss on statute of limitаtions grounds. The order of the Circuit Court of Monongalia County is reversed and remanded for further proceedings.
Reversed and remanded.
Notes
. Another victim, Betty Barefoot, filed a civil action against the Board which is currently under a stay of proceedings pending the outcome of this appeal.
. A motion to dismiss may be filed in circuit court pursuant to West Virginia Rule of Civil Procedure 12(b)(6) if a plaintiff "fail[s] to state a claim upon which relief can be granted!.]”
.Motions for summary judgment are filed pursuant to West Virginia Rule of Civil Procedure 56.
. The appellant was born on October 13, 1975.
Concurrence Opinion
concurring.
(Filed Dec. 13, 2001)
I agree with the majority opinion’s conclusion that the discovery rule tolls the 2-year limitation period contained in W.Va.Code, 55-2-15 [1923]. I write separately, however, to expand and clarify the majoi'ity’s discussion of how the discovery rule is to be applied. Specifically, I believe the majority opinion “jumped the gun” in analyzing the рlaintiffs case under Cart v. Marcum, 188 W.Va. 241,
We held in Keesecker v. Bird, 200 W.Va. 667, 682,
“The second step in evaluating a statute of limitation question is to establish when the requisite elements of the alleged tort occurred, such that the cause of action ‘accrued.’” Keesecker,
“The next step is to determine whether the plaintiff is entitled to the benefit of the ameliorative effects of the discovery rule.”
“The last step in the statute of limitation analysis is to determine if the limitation period is tolled by some misconduct of the defendant.” Keesecker,
The analysis is that simple. A plaintiff should first determine the applicable statute of limitation, then when the cause of action truly “accrued.” If the lawsuit was filed after the time period specified in the statute, the plaintiff can assert the discovery rule as stated in Gaither v. City Hospital or, in wrongful death actions, in Bradshaw v. Soulsby. As a last resort, the plaintiff can allege some affirmative misconduct by the defendant prevented the plaintiff from knowing of the elements of then- cause of action, as stated in Cart v. Marcum.
In the instant case, the majority opinion dоes not apply the analysis set forth in Kee-secker. The majority opinion wholly bypasses the discussion of the discovery rule in Gaither, and applies the test set forth in Cart v. Marcum.
I would have made clear that, under the Gaither v. City Hospital analysis, the plaintiff did not know, nor could she have known, that the Monongalia County Board of Edu
With the proviso, as we stated in Keesecker, that the Gaither v. City Hospital analysis should be used before resorting to the Cart v. Marcum analysis when looking at cases under W.Va.Code, 55-2-15,1 concur with the majority’s opinion.
.Syllabus Point 4 of Gaither v. City Hospital states:
In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligencе, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury.
In wrongful death actions, the application of the discovery rule is governed by Syllabus Point 8 of Bradshaw v. Soulsby,
In a wrongful death action, under the discovery rule, the statute of limitation сontained in W.Va.Code, 55 — 7—6(d) [1992J begins to run when the decedent’s representative knows or by the exercise of reasonable diligence should know (1) that the decedent has died; (2) that the death was the result of a wrongful act, neglect, or default; (3) the identity of the person or entity who owed the decedent a duty to act with due care and who may have engaged in conduct that breached that duty; and (4) that the wrongful act, neglect or default of that person or entity has a causal relation to the decedent’s death.
. We stated, in Syllabus Point 3 of Cart v. Marcum, that:
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.
. A studious observer will note that this Court stated one form of the discovery rule in Cart v. Marcum, and then stated a different, more lenient form of the discovery rule in Gaither v. City Hospital. While it is not perfectly clear, it appears that the Court, without specifically saying so, modified or overruled Cart v. Marcum in Gaither v. City Hospital.
Regardless of the Court’s unstated intent, subsequent decisions such as Keesecker make clear that Gaither v. City Hospital is the preferred statement of the discovery rule; Carl v. Marcum governs only those cases where the plaintiff is compelled to allege some deed by the defendant concealed the cause of action from the plaintiff.