J. William St. Clair, Esquire
Huntington, West Virginia
Attorney for the Appellant
David C. Ray, Esquire
Campbell, Woods, Bagley, Emerson,
McNeer & Herndon
Huntington, West Virginia
Attorney for the Appellee Ked Marcum
R. R. Fredeking, II
Fredeking & Fredeking
Huntington, West Virginia
Attorney for the Appellee Avery Hager
JUSTICE NEELY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. Generally, a cause of action accrues (i.e., the
statute of limitations begins to run) when a tort occurs; under the
"discovery rule," the statute of limitations is tolled until a
claimant knows or by reasonable diligence should know of his claim.
2. The "discovery rule" is generally applicable to all
torts, unless there is a clear statutory prohibition of its
3. 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.
In this case we are asked to determine what circumstances
toll the statute of limitations in a tort case because of lack of
knowledge of the wrong by the plaintiff. Mr. Cart, the plaintiff
below, filed his suit more than two years after an alleged
conversion of his timber took place, but contends that the suit was
filed within two years of the time he discovered the tort and who
had committed it. Although we agree that under certain
circumstances the statute of limitations may be tolled until
discovery, the general rule is that the statute of limitations
begins to run when the injury occurs. Accordingly, we affirm.
In June of 1988, Mr. Cart entered into an oral contract
with David Scott Jefferson to allow Mr. Jefferson to enter Mr.
Cart's land to cut, remove, and sell timber from 65 acres. Mr.
Cart and Mr. Jefferson agreed to split the proceeds of the sale
evenly, with Mr. Jefferson bearing all expenses and replanting
costs. Mr. Jefferson produced a written contract and gave it to
Mr. Cart, but the contract was never signed.
Mr. Cart was concerned about Mr. Jefferson's repeated
stalling tactics to avoid signing their agreement.See footnote 1 Mr. Cart
fenced off his property and warned Mr. Jefferson not to come onto
the property until the contract was signed. Mr. Jefferson
apparently did not want to sign the contract; instead, he took all
of the timber that he had cut and sold it to saw mills in order to
have the wood processed.See footnote 2 Mr. Jefferson subsequently absconded
with the proceeds from the sale of that timber. Mr. Jefferson has
yet to be located. It is clear that the alleged conversion took
place no later than 9 August 1988.See footnote 3
Mr. Cart visited his property on 14 August 1988 and
noticed for the first time that the cut timber had been removed
from the property. He tried to contact Mr. Jefferson after the
timber disappeared, but was not able to locate him. In the Fall
of 1989, Mr. Cart's investigation combined with the investigations
of the state police and the F.B.I. traced the path of at least some
of the timber through Mr. Hager and Mr. Marcum.
Mr. Cart did not file his action until 10 August 1990,
which is more than two years after the accrual of the cause of
action. The statute of limitations for this type of tort is two
years.See footnote 4 The Circuit Court of Cabell County dismissed the case
against defendants Marcum and Hager on summary judgment because the
action was time-barred by the statute of limitations.
"The statute of limitations ordinarily begins to run when
the right to bring an action for personal injuries accrues which is
when the injury is inflicted." Syl. pt. 1, Jones v. Trustees of
Bethany College, 177 W.Va. 168, 351 S.E.2d 183 (1986). However,
"[j]ustice is not done when an injured person loses his right to
sue before he discovers if he was injured or who to sue." Hickman
v. Grover, 178 W.Va. 249, 252, 358 S.E.2d 810, 813 (1987). In an
attempt to mitigate the harshness of the statute of limitations,
the "discovery rule" has been created by courts across the nation,
including this Court. Under the "discovery rule," the statute of
limitations is tolled until the plaintiff knows or by reasonable
diligence should know that he has been injured and who is
In [malpractice actions] we have recognized
that often the plaintiff is not aware of the
fact that an injury has been inflicted. In
the area of medical malpractice, this is
particularly true because the physician's
negligence may consist of some improper
diagnosis or improper surgery when the
plaintiff is unconscious so that he is not
aware that there has been an injury.
Jones v. Trustees of Bethany College, 177 W.Va. 168, 169, 351 S.E.2d 183, ___ (1986).
Despite this tendency to give unaware plaintiffs a break, the plaintiffs still had to show that they had good reason to be unaware of their injury:
'In a medical malpractice case the statute of limitations begins to run at the time the injury is inflicted, or . . . when . . . the injury is discovered or when by the exercise of reasonable diligence it should have been discovered.' Syllabus Point 2, in part, Hundley v. Martinez, 151 W.Va. 977, 158 S.E.2d 159 (1967). [Emphasis added]
Syl. pt. 2, Bethany College, 177 W.Va. 168, 351 S.E.2d 183. For example, if a surgeon leaves a surgical sponge inside of a patient and the patient discovers it five years later and immediately brings suit, that would fit under the discovery rule. However, if the same patient (with health insurance) bore noticeable stomach pains for two more years before having a doctor examine him, then he did not act with reasonable diligence and the "discovery rule" would not protect the patient.
From medical malpractice, the "discovery rule" was
expanded to legal malpractice:
Although, as asserted by the defendant, the Morgan decision [Morgan v. Grace Hospital, Inc., 149 W.Va. 783, 144 S.E.2d 156 (1965)] applying the "discovery rule" was restricted to cases involving foreign objects negligently left in a patient's body, we discern no valid reason why the principle expressed therein should not be extended when such extension is designed to promote justice and right. Morgan extended the rule to escape one which was "unrealistic and cruelly harsh." For the same reason we extend the Morgan rule to cover the instant case. [Emphasis added]
Family Savings and Loan, Inc. v. Ciccarello, 157 W.Va. 983, 991, 207 S.E.2d 157, 163 (1974).
Indeed, that reasoning has allowed plaintiffs, a tort at
a time, to attempt to extend the torts included under the
"discovery rule," such as products liability,See footnote 7 faulty
constructionSee footnote 8, and invasion of privacy.See footnote 9 Unless a clear statute
foreclosed expanding the scope of the discovery rule,See footnote 10 we have
expanded it each time. Such a piecemeal method has enabled a
victim of nearly any tort who misses the statute of limitations to
argue that his tort is analogous to the torts to which the
"discovery rule" applies; however, each expansion has occurred as
the expense of the predictability that bright line rules like a
strict statute of repose create and also at the expense of reviving
litigation that should be long dead.
"The tendency of the law must always be to narrow
the field of uncertainty." O.W. Holmes, The Common Law 127 (1881).
Therefore, we hold today that the "discovery rule" is generally
applicable to all torts, unless there is a clear statutory
prohibition of its application.See footnote 11 However, by declaring the
existence of a "discovery rule" we do not eviscerate the statute of
limitations: the statute of limitations will apply unless the
handicaps to discovery at the time of the injury are great and are
largely the product of the defendant's conduct in concealing either
the tort or the wrongdoer's identity.
The "discovery rule," then, is to be applied with great
circumspection on a case-by-case basis only where there is a strong
showing by the plaintiff that he was prevented from knowing of the
claim at the time of the injury. The general rule is that mere
ignorance of the existence of a cause of action or of the identity
of the wrongdoer does not prevent the running of a statute of
limitations.See footnote 12 In order to benefit from the rule, a plaintiff must
make a strong showing of fraudulent concealment,See footnote 13 inability to
comprehend the injury,See footnote 14 or other extreme hardship:
. . . . However, special rules apply in a case involving particular hardship or other circumstances justifying different accrual rules. [Emphasis added]
54 C.J.S. Limitations of Actions § 87(a) (1987).
Applying the "discovery rule" in this case, we do not
find that Mr. Cart has made the showing that he could not
reasonably have discovered who took his wood. Indeed, Mr. Cart
suspected Mr. Jefferson would take the wood in advance of the
actual theft. Mr. Cart took significant precautions in order to
prevent Mr. Jefferson from stealing the timber; however, these
precautions were not successful. Sure enough, Mr. Cart's
suspicions were correct and Mr. Jefferson took the timber despite
the fact he had no permission to do so. Mr. Cart should have known
that Mr. Jefferson took his wood and he should have known it at the
time of the injury.
Mr. Cart suffered from none of the disabilities that
a beneficiary of the "discovery rule" must show in order to free
himself from the demands of the statute of limitations.See footnote 15 Mr. Cart
was not robbed by a stranger whose identity was discovered only
many years later; Mr. Cart did not have a piece of surgical
equipment left in his body that was discovered only several years
later; Mr. Cart was not exposed to a chemical, the effects of which
were discovered only years later; and Mr. Cart was not struck by a
hit-and-run automobile whose driver was determined only years
later. No, Mr. Jefferson, a person with whom Mr. Cart was doing
business, took something that Mr. Cart thought Mr. Jefferson was
likely to take. Mr. Cart knew what was likely to be taken and who
did the taking. A reasonably diligent investigation would have
turned up the identities of Mr. Marcum and Mr. Hager sooner;
indeed, Mr. Cart still had nearly a year after he discovered the
identities of Mr. Marcum and Mr. Hager to bring suit, yet he failed
to do so. No hardship prevented Mr. Cart from discovering his
injury or the identities of Mr. Marcum or Mr. Hager. Therefore, we
have find no reason in low or equity to toll the running of the
statute of limitations under the "discovery rule."
For the reasons set forth above, the judgment of the Circuit Court of Cabell County is affirmed.
Footnote: 1Mr. Cart stated his reasons for his disagreement with Mr. Jefferson in his deposition:
He had put me off for six weeks to get to
the attorney's office, and he called me on
August the 8th approximately 8:00 in the
morning and asked me why I put the fence up,
and I told him it was to keep him off the
property. And I asked him why, and I said,
'You've put me off for six weeks now getting
down to the attorney's office to get this
contract ratified or whatever, signed and
notarized, and until you do, I don't want you
back on my property.'
Cart deposition, 20 December 1990, at 26.
Footnote: 2Defendants Avery Hager and Ked Marcum are involved in this matter because Mr. Jefferson sold the timber to Mr. Hager, and Mr. Marcum was hired to help haul the timber off Mr. Cart's land and cut it into marketable pieces. Avery Hager and Ked Marcum both work in the logging business as their primary trade. Mr. Hager is a logger who buys raw timber, assists in the cutting of that timber, has the wood processed, and then re-sells the boards. Mr. Marcum runs a small sawmill in Glenwood, and worked with Mr. Hager many times in the past to help Mr. Hager haul the cut timber and then process the timber into boards.
For the Cart timber, Mr. Hager hired Mr. Marcum to haul and process the wood, and Mr. Marcum received the low-grade logs from the land for his services. The low-grade logs were valued at $331.84 before he cut them into boards, and $995.54 after he cut them. Mr. Hager paid $2,700 to Mr. Jefferson for the rest of the timber and presumably resold the boards in the ordinary course of his business.
Footnote: 3"The cause of action arose on August 8th or 9th, 1988 at the very latest." 18 November 1991 Opinion and Order of the Circuit Court of Cabell County (Record at 99). Defendants Marcum and Hager contend that their participation in the alleged conversion took place sometime near the end of July 1988, not in August as Mr. Cart alleges. In evaluating a summary judgment dismissal, we assume the facts in a light most favorable to the party against whom summary judgment is being sought (i.e., Mr. Cart). The most favorable view of the facts possible places the conversion happening no later than 9 August 1988.
Footnote: 4W.Va. Code, 55-2-12(a) .
Footnote: 5It is interesting to note that in West Virginia, the discovery rule actually has its origins in subterranean coal mining operations, where people would mine underneath the property of others and extract the coal. Years later, the owner of the mineral rights would discover that the coal had been extracted. This Court created a "discovery rule" to protect owners of mineral rights. See Petrelli v. West Virginia-Pittsburgh Coal Co., 86 W.Va. 607, 104 S.E. 103 (1920); Knight v. Chesapeake Coal Co., 99 W.Va. 261, 128 S.E. 318 (1925).
Footnote: 6The "discovery rule" itself evolved from the concept of fraudulent concealment. Under the fraudulent concealment concept,
the statute of limitations would ordinarily run from the time of
the injury, unless a plaintiff could show that the defendant
actively committed fraud in an attempt to prevent the plaintiff
from prosecuting his claim. See Hundley v. Martinez, 151 W.Va.
977, 158 S.E.2d 159 (1967).
In Harrison v. Seltzer, we described this shift of focus from the "fraudulent" activities of the defendant to the plaintiff's lack of "awareness":
In malpractice, our discovery rule does not initially rest on a showing of fraudulent concealment, but rather on whether the injured plaintiff was aware of the malpractice or, by the exercise of reasonable care, should have discovered it.
Syl. Pt. 2, Harrison v. Seltzer, 165 W.Va. 366, 268 S.E.2d 312 (1980).
Footnote: 7"In products liability cases, the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence should know, (1) that he has been injured, (2) the identity of the maker of the product, and (3) that the product has a causal relation to the injury. Syl. pt. 1, Hickman v. Grover, 178 W.Va. 249, 358 S.E.2d 810 (1987).
Footnote: 8Basham v. General Shale, 180 W.Va. 526, 377 S.E.2d 830 (1988); Shirkey v. Mackey, 184 W.Va. 157, 399 S.E.2d 868 (1990).
Footnote: 9Slack v. Kanawha County Housing and Redevelopment Authority, ___ W.Va. ___, ___ S.E.2d ___ (July 9, 1992) (W.Va. slip op., no. 20725).
Footnote: 10In the faulty construction area, W.Va. Code 55-2-6a  (known as the "architects and builders" statute) provides a ten-year maximum period within which suits can be brought against anyone who participates in the construction of a building. This statutory provision explicitly states that it shall not be tolled except by the bringing of an action within the ten-year period. We have held that this explicit provision prohibits the application of the "discovery rule." See Basham v. General Shale, 180 W.Va. 526, 377 S.E.2d 830 (1988); Shirkey v. Mackey, 184 W.Va. 157, 399 S.E.2d 868 (1990).
Footnote: 11We note that we are not the first state supreme court to find a generally applicable "discovery rule":
In the interest of justice and fundamental fairness, we adopt the discovery rule for all tort actions other than those already governed by a legislatively created discovery rule. Such tort claims shall accrue on the date the injury is discovered or with reasonable diligence should be discovered whichever occurs first.
Hansen v. A.H. Robins, Inc., 113 Wis.2d 550, 560, 335 N.W.2d 578,
Footnote: 12This is the rule nationally, as well as in West Virginia. See, e.g., Snow v. A.H. Robins Co., Inc., 165 Cal.App.3d 120, 211 Cal. Rptr. 271 (1985).
Footnote: 13Fraudulent concealment would include concealment of the injury itself or the identity of the tortfeasor.
Footnote: 14Examples of lack of comprehension of injury would include a piece of surgical equipment left in a patient that is not discovered until several years later, exposure to hazardous chemicals (such as asbestos or Agent Orange) the effects of which were only detected twenty years later.
In the products liability area, lack of comprehension of injury includes (1) that the plaintiff has been injured, (2) the identity of the maker of the product, and (3) that the product has a causal relation to the injury. Syl. pt. 1, Hickman v. Grover, 178 W.Va. 249, 358 S.E.2d 810 (1987).
Footnote: 15Note that we are deciding today only the applicability of the "discovery rule" and the statute of limitations with respect to claims against Mr. Marcum and Mr. Hager, not as against Mr. Jefferson. Unlike Mr. Marcum and Mr. Hager who took no steps to conceal their actions, Mr. Jefferson has gone into hiding and made it difficult for Mr. Cart to pursue his claims against Mr. Jefferson. Therefore, it is quite possible that a suit against Mr. Jefferson would be successful.