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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Merrimack
No. 2019-0535
PETITION OF NEW HAMPSHIRE DIVISION FOR CHILDREN, YOUTH AND
FAMILIES
Argued: July 1, 2020
Opinion Issued: September 30, 2020
Gordon J. MacDonald, attorney general (Daniel E. Will, solicitor general,
and Anthony J. Galdieri, senior assistant attorney general, on the brief, and
Mr. Galdieri orally), for the New Hampshire Division for Children, Youth and
Families.
Primmer Piper Eggleston & Cramer PC, of Manchester (Doreen F. Connor
on the brief and orally), for the respondent.
DONOVAN, J. The court accepted the New Hampshire Division for
Children, Youth and Families’ (DCYF) petition for original jurisdiction pursuant
to Supreme Court Rule 11 to determine whether the Superior Court (Kissinger,
J.) erred in denying DCYF’s motions to dismiss the respondent’s claims on
statute of limitations grounds. DCYF argues that the respondent’s claims must
be dismissed because she did not bring them within three years of her injuries
as required by RSA 541-B:14, IV (Supp. 2019). We conclude that the discovery
rule provided in RSA 508:4, I (2010) applies to actions brought under RSA
chapter 541-B (2007 & Supp. 2019), and, accordingly, affirm the trial court’s
order and remand for further proceedings.
I. Facts
We assume the following facts, as alleged in the respondent’s complaints,
to be true. While under the care of DCYF, separate individuals sexually
assaulted the respondent on two separate occasions. The first assault
occurred in February 2011, when the respondent was approximately 12 years
old, after DCYF placed her in the care of a foster family. While living with the
foster family, a neighbor’s cousin raped the respondent.
The second assault occurred in June 2015, when the respondent was
approximately 16 years old, after DCYF placed her in a children’s home. An
employee of the children’s home inappropriately touched, threatened, and
raped the respondent.
In November and December 2018, the respondent filed two complaints
alleging, in relevant part, claims of negligence, breach of fiduciary duty, and
vicarious liability against DCYF, all relating to the sexual assaults that
occurred while she was in DCYF custody. DCYF moved to dismiss the claims,
arguing that they were barred by the three-year statute of limitations provided
in RSA 541-B:14, IV. The respondent objected and argued, among other
things, that she could not have discovered DCYF’s potential legal fault until
December 19, 2016, when an independent audit of DCYF was publicly released
that detailed DCYF’s various shortcomings regarding child welfare and safety.
Therefore, according to the respondent, she had filed her actions in a timely
manner pursuant to the discovery rule set forth in RSA 508:4, I.
The trial court declined to dismiss the claims as time-barred. After
reviewing the legislative history, it concluded that “the legislature intended that
the discovery rule apply to RSA 541-B:14, IV’s time limitation.” The trial court
also found that the respondent should not have been expected to investigate
DCYF’s potential fault for the assaults at the time they occurred given that the
mechanism of harm or injury, sexual abuse, is “most readily attributable only
to the actual abuser rather than to a third-party’s negligence as well.” Thus,
considering her allegation that she did not learn of DCYF’s potential culpability
until the report was released, the court concluded that her actions were timely
under the discovery rule.1
This petition followed. In its petition, DCYF asks us to determine
whether the trial court erred in concluding that the discovery rule applies to
claims brought under RSA chapter 541-B.
1 DCYF has not asked this court to review the trial court’s determination that, based upon the
facts alleged in the complaints, the respondent did not know of, and could not have been expected
to investigate, DCYF’s potential culpability prior to December 19, 2016.
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II. Standard of Review
Whether the discovery rule applies to claims brought under RSA chapter
541-B turns on statutory interpretation, which is a question of law subject to
de novo review. See Appeal of Town of Lincoln, 172 N.H. 244, 247 (2019); Steir
v. Girl Scouts of the United States, 150 N.H. 212, 214-15 (2003). In matters of
statutory interpretation, we are the final arbiter of the legislature’s intent.
Petition of Carrier, 165 N.H. 719, 721 (2013). When interpreting a statute, our
first step is to examine the language of the statute, and, if possible, construe
that language according to its plain and ordinary meaning. Id. We do not
consider words or phrases in isolation, but within the context of the statute as
a whole. Id. If a statute is unambiguous, then the first step of our analysis is
also the last, and we need not consider legislative history to aid our analysis.
See id.
III. Analysis
We begin with the relevant statutory language. DCYF, as a state agency,
enjoys the State’s sovereign immunity and is immune from suit in New
Hampshire courts, unless a statute waives that immunity. Chase Home for
Children v. N.H. Div. for Children, Youth & Families, 162 N.H. 720, 730 (2011);
see RSA 99-D:1 (2013). One such statute is RSA chapter 541-B, which, among
other things, waives sovereign immunity for tort claims against state agencies
in certain circumstances. RSA 541-B:1, II-a (Supp. 2019); see Laramie v.
Stone, 160 N.H. 419, 436 (2010). The statute requires that “[a]ny claim
submitted under this chapter . . . be brought within 3 years of the date of the
alleged . . . injury.” RSA 541-B:14, IV.
Similarly, RSA 508:4, I, which governs personal actions generally,
requires that, “[e]xcept as otherwise provided by law, all personal actions
. . . be brought . . . within 3 years of the act or omission complained of.” RSA
508:4, I, also contains what is known as the discovery rule, which provides
that
when the injury and its causal relationship to the act or omission
were not discovered and could not reasonably have been
discovered at the time of the act or omission, the action shall be
commenced within 3 years of the time the plaintiff discovers, or in
the exercise of reasonable diligence should have discovered, the
injury and its causal relationship to the act or omission
complained of.
The discovery rule “is designed to provide relief in situations where the plaintiff
is unaware of either [her] injury or that the injury was caused by a wrongful act
or omission.” Beane v. Dana S. Beane & Co., 160 N.H. 708, 713 (2010)
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(quotation omitted). Accordingly, under the rule, the statute of limitations
begins to run once a plaintiff knows or reasonably should know that she had
been injured and her injury was proximately caused by the conduct of the
defendant. See id.
DCYF argues that RSA 508:4, I, does not apply to the respondent’s
claims and, thus, because RSA 541-B:14, IV is unambiguous and does not
contain a discovery rule, the respondent’s actions are untimely. Although we
agree that RSA 541-B:14, IV is unambiguous and does not contain a discovery
rule, we conclude that the discovery rule set forth in RSA 508:4, I, applies to
the respondent’s claims.
The provisions of RSA chapter 508 (2010 & Supp. 2019) do not apply “to
cases in which a different time is limited by statute.” RSA 508:1 (2010)
(emphasis added). The purpose of RSA 508:1 is to make “RSA chapter 508 the
source for ‘catch-all’ statutes of limitations and tolling provisions, and to
ensure that more specific statutes found elsewhere remain controlling.”
Doggett v. Town of North Hampton, 138 N.H. 744, 747 (1994). Additionally,
RSA 508:1 only bars application of RSA chapter 508 when the statutes being
compared have “similar, potentially conflicting, types of limits.” Id.
The time limitations provided for in RSA 508:4, I, and RSA 541-B:14, IV
are the same; both require that claims be brought within three years of the
date of injury. RSA 508:4, I; RSA 541-B:14, IV. Furthermore, RSA 541-B:14,
IV is silent on the discovery rule. Thus, the two statutes do not contain
“potentially conflicting” types of limits; a plaintiff can “obey both rules without
conflict.” Doggett, 138 N.H. at 747-48. Accordingly, RSA 508:1 does not
preclude the discovery rule from applying to claims brought under RSA 541-
B:14, IV. The three-year limitations period contained in RSA 541-B:14, IV can
be read and applied harmoniously with the discovery rule in RSA 508:4, I.
DCYF relies upon our decision in Steir, 150 N.H. 212, in support of its
argument that the three-year limitations period in RSA 541-B:14, IV
constitutes a “different time” for purposes of RSA 508:1. In Steir, the plaintiff,
a minor with cerebral palsy, filed a discrimination suit pursuant to the New
Hampshire Law Against Discrimination (LAD). Steir, 150 N.H. at 213-14; see
RSA ch. 354-A (2009 & Supp. 2019). In that case, we decided whether the
disability tolling provision in RSA 508:8 (2010), which allows a claim to be
brought two years after a disability is removed, could relieve the plaintiff of the
obligation to bring her claim within the 180-day limitation period as required
by the LAD. Steir, 150 N.H. at 214. We determined that, because the
limitations period in the LAD was more specific and the legislature had not
excepted minors from conforming with it, RSA 508:1 required that the 180-day
limitations period in RSA 354-A:21, III (2009) control instead of the two-year
tolling provision in RSA 508:8. Id. at 215.
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This case is distinguishable from Steir because the discovery rule in RSA
508:4, I, is compatible with claims brought against the State pursuant to RSA
541-B:14, IV. Unlike in Steir, where the statutes at issue implicated two
distinct limitations periods, the statutes at issue in this case both involve
three-year time limits and RSA 541-B:14, IV does not include a specific
discovery rule. See RSA 508:4, I; RSA 541-B:14, IV.
DCYF also points to RSA 541-B:9, I (2007), which states that “[c]laims
under this chapter shall be brought solely in accordance with the provisions of
this chapter,” in support of its argument that RSA 508:4, I’s discovery rule
cannot be applied to claims brought under RSA chapter 541-B. However, the
plain language of RSA chapter 541-B expresses a legislative intent to permit
injured parties to sue state agencies for injuries proximately caused by the
State’s wrongful conduct or omission. RSA 541-B:1, II-a, :14; see Laramie, 160
N.H. at 436. RSA chapter 508’s purpose is to function as a “catch-all” for
tolling provisions when another statute has no comparable provision, see
Doggett, 138 N.H. at 747, and chapter RSA 541-B has no such provision;
specifically, no discovery rule. The purpose of the discovery rule is to provide
injured parties an avenue of relief when they did not and reasonably could not
know of the harm or its causal link to a wrongful act or omission by another
party. See Beane, 160 N.H. at 713.
We will not read RSA 541-B:9, I, in conjunction with either RSA 541-
B:14 or RSA 508:4, I, in such a way that would do “violence to the apparent
policy of the Legislature” in limiting the application of sovereign immunity, on
the one hand, and enacting a “catch-all” discovery rule, on the other. State ex
rel Fortin v. Harris, 109 N.H. 394, 395 (1969). Indeed, the legislature has
consistently expanded the scope of RSA chapter 541-B to lessen the harshness
of the sovereign immunity doctrine in response to observations by this court.
See Slovenski v. State, 132 N.H. 18, 20-21 (1989).
Furthermore, we have advised the legislature that we would apply the
discovery rule to claims brought under RSA 541:B:14, IV. See Opinion of the
Justices, 126 N.H. 554, 566 (1985). Prior to amending RSA 541-B:14, IV, the
legislature requested our opinion as to the constitutionality of that provision,
which at the time provided a six-year statute of limitations for claims filed
against the State. Id. at 556-57, 566. Recognizing that it is “manifestly unfair
to foreclose an injured person’s cause of action before [she] has had a
reasonable chance to discover its existence,” we advised the legislature “that
the ‘discovery rule’ governs the accrual of causes of actions under” RSA 541-
B:14, IV, in order to avoid equal protection concerns. Id. at 566 (quotation
omitted); see Shillady v. Elliot Community Hospital, 114 N.H. 321, 324 (1974),
superseded by statute as recognized in Beane, 160 N.H. at 712 (explaining that
the discovery rule avoids “undue strain upon common sense, reality, logic and
simple justice to say that a cause of action has accrued to the plaintiff and has
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been outlawed before she was or should have been aware of its existence”
(quotation omitted)). DCYF argues that there is, in fact, no equal protection
concern presented by interpreting RSA 541-B:14, IV to exclude the discovery
rule. We need not decide that issue today and, as DCYF points out, the
Opinion of the Justices is not precedential. However, we believe that the
legislature took us at our word, see Opinion of the Justices, 126 N.H. at 566,
and enacted the amended version of RSA 541-B:14, IV understanding that the
discovery rule would apply to claims brought under it. If the legislature had
disagreed with our interpretation, it would have explicitly stated that the
discovery rule does not apply to actions brought under RSA chapter 541-B. If
it disagrees with our interpretation today, it is free, subject to constitutional
limitations, to amend the statute. See State v. Proctor, 171 N.H. 800, 807
(2019).
IV. Conclusion
For the reasons stated above, we conclude that the discovery rule in RSA
508:4, I, applies to claims brought under RSA chapter 541-B. We therefore
affirm the trial court’s decision to deny DCYF’s motions to dismiss and remand
for further proceedings.
Affirmed and remanded.
HICKS and BASSETT, JJ., concurred.
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