Lead Opinion
The sole question presented by this appeal is whether the record discloses that the plaintiffs’ claim is barred by the running of the statute of limitations. If so, defendants were entitled to judgment as a matter of law, and summary judgment under G.S. 1A-1, Rule 56, was appropriate. Brantley v. Dunstan,
The defendants argue that the malpractice action was not filed within three years of accrual of the cause of action and that plaintiffs may not proceed under the latent or non-apparent injury discovery proviso of G.S. 145(c) because plaintiffs either discovered or should have discovered the fact of loss within two years of the accrual of the cause of action. Both parties essentially agree that the date of the last act of the defendant giving rise to the cause of action for failing to give notice to the Wilson estate was 16 October 1976. This was the last date upon which notice of the wrongful death action could have been validly presented to the personal representative of the negligent tort-feasor’s estate. See G.S. 28A49-3; Thorpe v. Wilson,
G.S. 1-15 provides, in pertinent part:
(c) Except where otherwise provided by statute, a cause of action for malpractice arising out of the performance of or failure to perform professional services shall be deemed to accrue at the time of the occurrence of the last act of the defendant giving rise to the cause of action: Provided that whenever there is bodily injury to the person, economic or monetary loss, or a defect in or damage to property which originates under circumstances making the injury, loss, defect or damage not readily apparent to the claimant at the time of its origin, and the injury, loss, defect or damage is discovered or should reasonably be discovered by the claimant two or more years after the occurrence of the last act of the defendant giving rise to the cause of action, suit must be commenced within one year from the date discovery is made: Provided nothing herein shall be construed to reduce the statute of limitation in any such case below three years. Provided further, that in no event shall an action be commenced more than four years from the last act of the defendant giving rise to the cause of action. . . .
For a plaintiff to avail himself of the one-year extension under the latent injury discovery rule, then, he must show that:
(1) the injury of economic loss originated under circumstances making the injury or loss not readily apparent at the time of its origin;
(2) the injury or loss was discovered or should reasonably have been discovered by the plaintiff two or more years after*359 the occurrence of the last act of the defendant giving rise to the cause of action;
(3) suit was commenced within one year from the date discovery was made; and
(4) the statute of limitations may not, in any case, have been reduced to below three years or extended beyond four years.
The last day on which a claim against the Wilson estate could have been made in order to prevent a bar against recovery from the general assets of that estate was 16 October 1976. That is the date on which the cause of action for the defendants’ alleged malpractice accrued. G.S. 145(c); Brantley v. Dunstan, supra. Plaintiffs correctly contend that their injury or loss was not readily apparent at the time of its origin because they were entitled to rely on the defendants to make the required presentment to the Wilson estate within the time prescribed by statute.
The plaintiffs reposed their trust in the defendants to properly handle all of the claims arising out of their intestate’s wrongful death on 16 April 1976. The contingency fee contract executed between plaintiffs and defendants on 30 April 1976 provided that defendant “Attorneys will devote their full professional abilities to case and clients agree to fully cooperate with the Attorneys.” Part of the defendants’ professional responsibilities included presentation of the plaintiffs’ claim to the personal representative of the negligent tortfeasor, Robert Manson Wilson. The plaintiffs, who are laymen, became aware that their claim was not timely presented only when they were so advised by their attorneys, the defendants. Logically, defendants could only have advised plaintiffs of their omission after the close of the six month presentment period. Necessarily, then, the loss was “not readily apparent” to plaintiffs at the time of its origin. See Black v. Littlejohn,
However, we do not agree with plaintiffs’ further related contentions (1) that they were not put on notice of their loss as a matter of law by reason of DeMent’s informing them of his failure
The plaintiffs’ argument depends upon the conclusion that their loss could not have occurred, and thus could not have been discovered, until their damages were made clear to them and that this happened only when the trial court ruled on the summary judgment in August, 1979. This conclusion confuses the fact of loss with the extent of that loss. The only question resolved by the trial court’s ruling on 16 August 1979 concerned the extent to which plaintiffs’ potential recovery in the wrongful death action would be barred by the defendant’s omission.
It is well established that in a case such as this, “loss” or the invasion of a legally protected right of the plaintiffs, occurs when the negligence occurs. In Shearin v. Lloyd,
Nominal damages may be recovered in actions based on negligence . . . The accrual of the cause of action must therefore be reckoned from the time the first injury, however slight, was sustained ... It is unimportant that the actual or the substantial damage does not occur until later if the whole*361 injury results from the original tortious act . . . [P]roof of actual damage may extend to facts that occur and grow out of the injury, even up to the day of the verdict. If so, it is clear the damage is not the cause of action. (Citations omitted.)
Id. at 461-462,
In this case, the “whole injury” to plaintiffs, the loss of their right to recover from the general assets of the estate, resulted from the original omission of the defendants in failing to make a timely presentment of the claim pursuant to G.S. 28A-19-3. Plaintiffs’ reliance upon Sunbow Industries, Inc. v. London,
It is on that date that the three-year statute of limitations began to run. The complaint does not allege a fact that will necessarily bar the plaintiffs claim and it was error to dismiss the action.
The dispositive issue in Sunbow, then, was not when the plaintiff discovered, or should have discovered, the loss, but rather, when the cause of action accrued for the defendant’s negligent failure to file the financing statement. Here, the plaintiffs’ rights could only be protected up to 16 October 1976 and they were directly informed of the fact of the alleged negligence on 17 November 1977, well within two years of the accrual of their cause of action. The “loss” that plaintiffs suffered thereby must be considered to be the loss of their right to recover from the general assets of the V/ilson estate. By virtue of the fact that defendant DeMent informed plaintiffs of his omission on or about 17 November 1977, the plaintiffs were at the very least put on inquiry notice of their possible cause of action for legal malpractice. At that point in time, plaintiffs had before them the facts, or access to the facts, necessary for them to “discover” both their attorney’s negligence and the consequent loss of their legal rights against the Wilson estate. In other words, plaintiffs had constructive knowledge of all of the essential elements of a complete malpractice cause of action. See Black v. Littlejohn, supra (Johnson, J., dissenting); Ballenger v. Crowell,
Accordingly, if as plaintiffs concede, the negligence of defendants was “spelled out in G.S. 28A-19-3,” then as a matter of law plaintiffs are charged with the knowledge that a reasonable inquiry would have disclosed — that their claim against the estate
Affirmed.
Dissenting Opinion
dissenting.
The majority holding that plaintiffs’ loss and damage occurred when defendants failed to timely file notice of claim with the Wilson estate and that only the amount of damage was then uncertain is contrary to both reality and the law, in my opinion. Plaintiffs suffered no loss whatever at that time and thus had no cause of action for the statute to run against, since neglect alone does not constitute a cause of action. Even though plaintiff had lost by defendants’ neglect the right to enforce the wrongful death claim against the general assets of the Wilson estate, that had not resulted in pecuniary loss at that time and there was no certainty that it would ever do so. This is because the value of the claim was uncertain and unknown, $50,000 worth of insurance was still available to pay it, and whether that amount would cover plaintiffs’ damages or whether it would not and loss would thereby be sustained, no one knew. Thus, to say that plaintiffs’ cause of action had nevertheless accrued because plaintiffs’ loss had occurred and only the amount was uncertain is a self-evident sophistry. Plaintiffs then had no cause of action. What plaintiffs then had, and all that they had, as both plaintiffs and defendants then knew, was a potential cause of action. If the value of the wrongful death claim turned out to be no more than $50,000, they knew that plaintiffs’ potential cause of action would remain in
The judicial fiction that damage and loss occur and causes of action therefore accrue when negligence happens rather than when injury really occurs or is learned about leads to many anomalous and even pernicious results and it would be a great service to the law of this state if the Supreme Court abandoned it and returned to the sound principle that negligence causes of action accrue when the injury that is sued for occurs. That this fiction is a blemish on our jurisprudence that ought to be removed requires only a reading of the cases. In many cases since this wrong turn was made, including Jewell v. Price,
And though all lawyers and judges know that the true policy of the law is to discourage unnecessary and hasty litigation, the plain, unavoidable implication of this decision and those it follows is that people should sue upon a mere indication of wrongdoing and wait until later to ascertain if any real damages develop. This detrimental and indefensible policy should be repudiated. Public interest requires that people be able to know what they are about and why before they take their grievances to court or even have a right to. The orderly adjudication of real disputes is the court’s business, not theorizing about imaginary disputes that are totally irrelevant to the practicalities of people deciding what to do about their legal rights and of lawyers advising them about them. For instance, if the Jewell’s had learned that their furnace was defective before it blew up, they would not have sued the seller and no lawyer worth his salt would have advised them to; they would have asked the seller to make the minor, inexpensive adjustment that would have made the furnace safe. And the cause of action that they theoretically had for a small repair bill, which was never incurred because they did not know repairs were needed, had less than nothing to do with the actual cause that they later had for the destruction of their home. The public does not expect people to sue others and subject them to embarrassment, expense, inconvenience and strain when only a theoretical injury
Some blemishes in the law cannot be corrected or concealed by euphemisms, legal or otherwise; and will not be erased by either time or reiteration. That which is not so does not become so by repetition. Nor does the burden to correct this situation rest with the Legislature. Nothing in our statutes required the interpretation given to them by the Justices and the Justices should remove the interpolations made. Many other courts have done so.