Wesley W. Metheney, Esq.
W. Brown, Esq.
Paul T. Farrell, Jr., Esq. Rodney L. Bean, Esq.
Wilson, Frame, Benninger & Metheney Steptoe & Johnson
Morgantown, West Virginia Clarksburg, West Virginia
Attorneys for Plaintiff Below, Appellant Attorneys for Defendants Below, Appellees
JUSTICE MAYNARD delivered the Opinion of the Court.
JUSTICE STARCHER concurs and reserves the right to file a concurring Opinion.
1. The 'discovery rule' is generally applicable to all torts, unless there is a clear statutory prohibition of its application. Syllabus Point 2, Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992).
2. 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. Syllabus Point 3, Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992).
3. Fraudulent concealment requires that the defendant commit some positive act tending to conceal the cause of action from the plaintiff, although any act or omission tending to suppress the truth is enough.
4. The general statute of limitations contained in W.Va. Code § 55-2-12(b) 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 the 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, no case may be brought after twenty years from the time the right accrues.
The 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.
The appellant instituted
this civil action against the Monongalia County Board of Education (Board)
due to alleged conduct of the Board which occurred independent of the crimes
committed by Donald McIntosh, a middle school teacher employed by the Board.
During the 1989-90 school year, the appellant was enrolled as a student in
McIntosh's class at South Junior High School. McIntosh possessed a lustful
disposition toward children and targeted the appellant as a victim. The teacher
began intentionally misgrading the appellant's tests and asked her to stay
after school to retake the exams for extra credit. During these after-school
sessions, McIntosh offered Miller the opportunity to retake the exams only
if she would ride with him to collect newspaper route fees. McIntosh began
fondling the appellant as she rode with him in his automobile. The sexual abuse inflicted
upon the appellant ended when she graduated from ninth grade and enrolled
in high school the following academic year.
McIntosh was subsequently
convicted of three counts of third degree sexual assault. The convictions
were affirmed by this Court in State v. McIntosh, 207 W.Va. 561, 534
S.E.2d 757 (2000). The appellant then filed this civil action seeking to hold
the Board legally responsible for the injuries and damages she sustained as
a minor. (See
footnote 1) She accused the Board of negligently failing
to protect her from the sexual abuse inflicted upon her by McIntosh. She contends
an investigation conducted by her counsel following McIntosh's criminal trial
and appeal revealed the Board failed to report McIntosh's sexual deviant behavior
to the appropriate authorities; fraudulently concealed material facts regarding
the Board's involvement and knowledge of the sexual misconduct; destroyed
documentary evidence of alleged sexual deviant behavior in McIntosh's personnel
file; transferred McIntosh between school districts in an effort to obfuscate
the sexual deviant behavior; and continued to provide McIntosh with unfettered
and unsupervised access to the school children in the county.
The Board filed a motion to
footnote 2) or in the alternative, a motion for summary judgment
(See footnote 3)
stating that the statute of limitations had expired. After hearing arguments
of counsel and studying relevant legal authority, the circuit court determined
that '[t]he plain language of West Virginia Code § 55-2-15 (1923)
(Repl.Vol. 1994) clearly prohibits the application of the discovery rule to
extend the statutory filing periods provided by this section.' Syl. Pt. 5 Albright
v. White, [202 W.Va. 292, 503 S.E.2d 860 (1998)]. The court dismissed
the complaint by order entered on January 16, 2001. The appellant appeals from
Appellate 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, 194 W.Va. 770, 461 S.E.2d 516 (1995). In order to determine whether the circuit court property granted dismissal, the appellant requests that we interpret W.Va. Code § 55-2- 15 to ascertain whether the discovery rule may apply to extend the statute of limitations.
''Where the issue on an appeal from the circuit court is clearly
a question of law or involving the interpretation of a statute, we apply a
de novo standard of review.' Syllabus point 1, Chrystal R.M. v.
Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Syllabus point
1, University of West Virginia Board of Trustees ex rel. West Virginia
University v. Fox, 197 W.Va. 91, 475 S.E.2d 91 (1996).' Syllabus point
3, Ewing v. Board of Education of County of Summers, 202 W.Va. 228,
503 S.E.2d 541 (1998). Syllabus Point 2, Albright v. White, 202
W.Va. 292, 503 S.E.2d 860 (1998).
On appeal, the appellant contends the circuit court erred by concluding that the plain language of W.Va. Code § 55-2-15 prohibits the application of the discovery rule to a civil action instituted prior to the expiration of the twenty year statute of repose and, thereby, wrongfully dismissed the complaint. The Board maintains that the circuit court was indeed correct in determining that the discovery rule does not apply to save Miller's claim from the running of the statute of limitations. We believe the discovery rule applies to extend the general statute of limitations referred to in W.Va. Code § 55-2-15 (1923) when the cause of action accrues during the appellant's infancy and the appellant alleges in his or her complaint that the appellee fraudulently concealed material facts.
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 section 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 disability 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 after the disability was
removed. In fact, the appellant celebrated her twenty-fifth birthday two weeks after the complaint was filed.
(See footnote 4) It is indisputable that the
complaint in this case was filed outside of the two-year statute of limitations
but inside of the twenty-year statute of repose.
This Court discussed a similar
statute of limitations problem in Albright v. White, 202 W.Va. 292,
503 S.E.2d 860 (1998). However, the facts in Albright are distinguishable
from the facts in the case presently before us. Albright underwent therapy
in 1994. During the therapy sessions, he claimed that he remembered an incident
of sexual abuse allegedly perpetrated by an Episcopal priest twenty-five years
earlier in 1969. Albright declared that he subsequently learned information
which indicated the Protestant Episcopal Church in the Diocese of West Virginia
may have known about the priest's alleged proclivity for deviant sexual behavior.
He alleged that the church failed to alert its parishioners of the potential
danger to their children. Albright filed a lawsuit in 1996 charging the priest
and the church with, inter alia, fraudulent concealment. The church
and the priest filed motions to dismiss asserting the claims were time barred.
The circuit court granted the motions. Albright appealed, arguing that the
two year statute of limitations should not begin to run until he recalled
the alleged tortious conduct in 1994.
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., 202 W.Va. at 302, 503 S.E.2d at 870. Albright argued the discovery
rule should apply to extend the statutory filing period. This Court decisively
stated, [W]e previously have determined that a 'clear statutory prohibition'
exists to preclude the application of the discovery rule in suits governed by
W.Va. Code § 55-2-15. Id., 202 W.Va. at 303, 503 S.E.2d at
871. The Court went on to hold in Syllabus Point 5, The plain language
of W.Va. Code § 55-2-15 (1923) (Repl.Vol.1994) clearly prohibits the application
of the discovery rule to extend the statutory filing periods provided by this
Because Albright filed his
action twenty-five years after the alleged abuse 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, 202
W.Va. at 306 n.18, 503 S.E.2d at 874 n.18 (Having resolved the case
before us by finding it to be time barred by the specific time limits provided
by W.Va. Code § 55-2-15, we render no additional decision with regard
to the propriety of the circuit court's ruling finding Albright's claim also
to be barred by the general statute of limitations provided by W.Va. Code §
55-2-12(b), as such a determination is unnecessary to our disposition of the
issues before us.)
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,
188 W.Va. 241, 423 S.E.2d 644 (1992). In spite of this generality, the discovery
rule is subject to limitations. The victim must make a strong showing that
he or she was prevented from knowing of the claim at the time of the injury.
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.
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 actionable 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, 184 W.Va. 212, 219, 400 S.E.2d 220, 227 (1990) (citations omitted).
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, 188 W.Va. at 245, 423
S.E.2d at 648 (footnotes omitted). [F]raudulent concealment requires that
the defendant commit some positive act tending to conceal the cause of action
from the plaintiff, although any word or act [or omission] tending to suppress
the truth is enough. Richards v. Mileski, 662 F.2d 65, 70, 213
U.S.App.D.C. 220, 225 (1981) (citation omitted).
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 fraudulently 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 amounting to active and purposeful fraudulent concealment. In view
of those claims, to resolve this case, we need go no further and accordingly
do not need to consider the appellant's inability to comprehend the injury[.]
Cart, 188 W.Va. at 245, 423 S.E.2d at 648. Nevertheless, we would be
remiss if we did not at least comment on the unique situations where criminal
sexual misconduct is committed on young children. The level of emotional pain
inflicted on these children is beyond our understanding. Many times, the child
victim feels great embarrassment, shame, and guilt, and frequently, with a child's
mind, wrongly blames himself or herself. The child then internalizes the guilt
and represses the memory, forcing it out of conscious awareness. It simply hurts
too much to allow the memory of such painful and devastating events to surface
in the conscious mind.
Also, on occasion, the child
is confused about 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 years 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, therefore, 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 the 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 case
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 limitations grounds. The order of the Circuit Court of Monongalia County is reversed and remanded for further proceedings.