No. 87-470
I N THE SUPREME COURT O F THE STATE OF MONTANA
1988
E. a n d D. W.,
P l a i n t i f f s and A p p e l l a n t s ,
-vs-
D. C. H.,
Defendant and Respondent,
APPEAL FROM: D i s t r i c t Court o f t h e Fourth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a ,
The H o n o r a b l e D o u g l a s G. H a r k i n , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
W i l l i a m Boggs a n d J e a n n e K e m m i s , M i s s o u l a , MT
F o r Respondent:
Randy J . Cox; Boone, K a r l b e r g a n d Haddon, iss sou la, M T
P a t r i c k F . Hooks; Hooks a n d B u d e w i t z , own send, MT
F o r Amicus C u r i a e :
P e t e r M i c h a e l Meloy, H e l e n a , MT, (NOW)
S a l l y F. G o l d f a r b ; Lynn, H e c h t a n d S c h a f r a n , N e w Y o r k , N Y ,
(NOW)
Submitted on B r i e f s : March 11, 1988
Decided: MaY 3 1 1988
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Plaintiffs appeal the memorandum and order of the
District Court of the Fourth Judicial District, Missoula
County, which found that plaintiffs' claims were barred by
the statute of limitations governing torts, § 27-2-204, MCA.
We affirm.
Plaintiffs present the following issues for review:
1. Was the statute of limitations tolled in this case
of incest by the delayed-discovery rule?
2. Did the District Court correctly refuse to apply the
fraudulent concealment doctrine?
3. Did the District Court correctly determine that
there were no genuine issues of material fact?
The controversy at hand arose as a result of the alleged
sexual molestation of plaintiff (EW) by her step-uncle (DCH)
from 1957 until 1964. Throughout the course of the
proceedings, DCH has vigorously denied that he sexually
molested EW. However, for purposes of our review, the
factual allegations presented by EW will be regarded as true.
EW was born in 1952, the oldest of three girls.
Following her father's death in a boating accident, EW's
mother remarried in 1956. The new family subsequently
settled on a ranch operated by her stepfather's extended
family.
EW first met her step-uncle when she was four years old.
As members of the same family, DCH and EW were in frequent
contact. DCH's kindness, tenderness, and affection in an
otherwise harsh family environment soon caused EW to feel
very close to her step-uncle.
The first instance of sexual fondling is alleged to have
occurred in 1957, when EW was five years old. Immediately
following the attack, EW was informed that the fondling would
be "our special secret . . ." Incidents of manual
manipulation allegedly continued on a regular basis for a
period of four years.
DCH is alleged to have first engaged in an episode of
forced sexual intercourse with EW during the summer of her
ninth year. Following the attack, EW was instructed not to
reveal what had occurred or her step-father would be harmed.
She was also reminded that her mother would be very angry if
she found out what had happened.
The sexual attacks continued over 3 years until the
:
summer of 1964. At that time, EW revealed the incidents of
sexual abuse to a slightly younger friend who had also been
molested. Although EW attempted to swear the friend to
secrecy, she was soon confronted with the allegations by her
mother and step-father. Upon confirming the attacks, EW was
not allowed to have further contact with DCH.
In an attempt to verify EW's allegations, the family
sought medical confirmation of sexual activity. Dr. William
Antonioli examined EW in August, 1964. At that time, Dr.
Antonioli determined that EW had a pronounced disruption of
the hymen. He was not consulted about possible psychological
effects nor was the matter ever raised with him again.
EW suffered emotional and physicial disorders as a young
adult. Although she always knew she had been molested, she
did not associate her psychological problems with the
molestation. In 1976, while undergoing a divorce, EW was
referred to Dr. Stanley Moisey for psychiatric counseling.
During the initial interview, EW informed Dr. Moisey that she
had been molested as a child. Dr. Moisey noted it in his
records, but never discussed the matter further.
In 1983, EW again sought psychiatric counseling in
connection with another potential divorce. Following the
initial interview, Dr. June Allison indicated that she
suspected a causal relationship between E W 1 s continuing
emotional problems and DCH1s childhood attacks. After
additional therapy, EW and her husband filed suit in 1986
alleging assault and battery, intentional infliction of
emotional distress, negligence, and loss of consortium.
Shortly thereafter , the District Court granted summary
judgment on the basis of the running of the statute of
limitations.
DISCOVERY DOCTRINE
On the face of the complaint, it is apparent that the
statutory period for bringing an action sounding in tort has
expired. EW contends, however, that the running of the
statute of limitations was tolled pursuant to the "discovery
rule" because her injuries had not fully manifested, she was
not aware of her legal rights, and she was not aware of the
causal relationship between her injuries and the molestation,
until she received therapy in 1983. We disagree.
The primary purpose of statutes of limitations is the
suppression of stale claims which, with the attendant passage
of time, inhibits a party's ability to mount an effective
defense. Thus, "statutes of limitations are regarded as
statutes of repose governing the period within which actions
must be brought and are designed to compel the exercise of a
right of action within a reasonable time, while the evidence
remains fresh in the memory of the witnesses." Monroe v.
Harper (1974), 164 Mont. 23, 26, 518 P.2d 788, 790. Statutes
of limitations also serve to suppress the bringing of
fraudulent claims.
The policy underlying the bar imposed by statutes of
limitations is, at its roots, one of basic fairness. Our
system of jurisprudence is designed to achieve substantial
justice through application of the law after the parties have
had an opportunity to fully present both sides of a
controversy. The failure to bring an action within a
reasonable time is clearly not conducive to a full
presentation of the evidence nor a search for the truth.
Consequently, the law will not reward the plaintiff who
sleeps on his or her rights to the detriment of a defendant.
Rather, failure to bring an action within the statute of
limitations constitutes a bar to the claim.
The legislature has determined that the statutory period
to bring an action sounding in tort shall be three years.
Section 27-2-204, MCA. Generally, the statute of limitations
begins to run upon the occurrence of the last fact essential
to the cause of action. See Heckaman v. Northern Pacific
Railway Company (1933), 93 Mont. 363, 20 P.2d 258. "The fact
that a person entitled to an action has no knowledge of his
right to sue, or of the facts out of which his right arises,
does not, as a general rule, prevent the running of the
statute, or postpone the commencement of the period of
limitation, until he discovers the facts or learns of his
right thereunder." Kerrigan v. O'Meara (1924), 71 Mont. 1,
8, 227 P. 819, 822; Carlson v. Ray Geophysical Division
(1971), 156 Mont. 450, 481 P.2d 427; and Bennett v. Dow
Chemical Co. (Mont. 1986), 713 P.2d 992, 43 St.Rep. 221.
Only the vigilant are viewed favorably under the law.
In the majority of cases, however, the wrongful act is
easily identifiable and the injury simultaneous and obvious.
Consistent with the underlying societal policy of fairness,
this Court has recognized that the inherent nature of certain
species of injury preclude a strict application of the
statutory bar. See Grey v. Silver Bow County (1967), 149
Mont. 213, 425 P.2d 819. In Johnson v. St. Patricks Hospital
(1966), 148 Mont. 125, 417 P.2d 469, we concluded that a
plaintiff should not be prevented from bringing an action
when the injury is self-concealing. We therefore held that
"where a foreign object is negligently left in a patient's
body by a surgeon and the patient is in ignorance of the
fact, and consequently of his right of action for
malpractice, the cause of action does not accrue until the
patient learns of, or in the exercise of reasonable care and
diligence should have learned of the presence of such foreign
object in his body." 148 Mont. at 132, 417 P.2d at 473.
Subsequent examination of the Johnson rationale has
demonstrated that the logic underlying the discovery rule
should not be limited to the narrow circumstance presented
therein. We have consequently found the discovery rule to be
applicable to other situations in which the injury is not
readily apparent. See, Grey, supra (discovery rule
applicable to any medical negligence in which the injury is
self-concealing); Thompson v. Nebraska Mobile Homes Corp.
(1982), 198 Mont. 461, 647 P.2d 334 (discovery rule
applicable to strict liability claim); Iowa Mfg. Co. v. Joy
Mfg. Co. (1983), 206 Mont. 26, 669 P.2d 1057 (discovery rule
applicable to breach of warranty claim). When presented with
the issue, the courts of other jurisdictions have also
applied the so-called discovery rule to non-malpractice
situations in which the injury is not readily apparent. See
generally, Urie v. Thompson (1949), 337 U.S. 163, 69 S.Ct.
1018, 93 L.Ed. 1282 (silicosis); Brush Beryllium Company v.
Meckley (6th Cir. 1960), 284 F.2d 797 (berylliosis); Thrift
v. Tenneco Chemicals, Inc. (N.D. Tex. 1974), 381 F.Supp. 543
(thorium exposure); Wilson v. Johns-Mansville Sales Corp.
(D.C. Cir. 1982), 684 F.2d 111 (asbestos exposure). The few
courts who have been asked to apply the discovery rule to
sexual molestation cases have refused to do so, however. See
DeRose v. Carswell (Cal.App. 19871, - Cal.App.3d , 242
Cal.Rptr. 368; Raymond v. Ingram (Wash.App. 1987), 737 P.2d
314; Tyson v. Tyson (Wash. 1986), 727 P.2d 226.
EW now urges this Court to extend the discovery doctrine
to instances of sexual molestation. We find such an
extension inappropriate under the facts of this case.
The central precept of Montana's discovery rule is that
the plaintiff was unaware, and could not reasonably have been
aware, of the wrongful act which later resulted in his or her
injury until after the statute of limitations had run. This
is not a case in which the plaintiff was unaware of the
tortious conduct or the injury has failed to manifest itself,
however. Rather, EW has consistently acknowledged that she
"always knew" she had been molested as a child and that she
has suffered from psychological problems since late
adolescence. For this reason alone, her claim must fail.
EW's alleged failure to understand her legal rights does
not save her claim. In Bennett v. Dow Chemical Company
(Mont. 1986), 713 P.2d 992, 43 St.Rep. 221, we were
confronted with an identical issue. The appellant therein
had been sprayed with toxic chemicals in 1979. Following a
medical examination shortly thereafter, appellant was
informed that he was suffering peripheral neuropathy as a
result of the exposure to the chemicals. He was not advised
of his right to a lawsuit until after the statute of
limitations had run, however.
In response to the theory now advanced, we concluded:
. .
. there is no Montana precedent for utilizing
the discovery doctrine to toll the statute of
limitations beyond discovery of the cause of an
injury. However, appellant here would have us
extend the doctrine for five years beyond the
discovery of the cause of his injury up until the
day he discovered his legal rights. Taken to its
logical extreme, and in consideration with the
continuing development of new torts and property
rights, appellant's position could have the effect
of forever denying potential defendants the
benefits of a statute of limitations.
713 P.2d at 995, 43 St.Rep. at 224.
The concerns expressed in Bennett are equally applicable
here. Statutes of limitation serve an important purpose. It
is not the function of this Court to render the statutory
period provided by law meaningless. "Were this Court to
adopt the rule urged by plaintiffs, the issue of when a cause
of action accrued would not be resolved until the jury
returned with a verdict ... " Buhl v. Biosearch Medical
Products, Inc. (D. Mont. 1985), 635 F.Supp. 956, 961.
EW was clearly aware of the wrongful conduct. Her
failure fully to understand her legal rights is not
sufficient to toll the running of the statute of limitations.
Nor does the failure to understand the causal
relationship between the wrongful act and her injuries
resuscitate the claim. The law does not contemplate such
discovery as would give complete knowledge before the cause
of action accrues. See Mobley v. Hall (1983), 202 Mont. 227,
657 P.2d 604. Rather, the discovery doctrine only tolls the
running of the statutory clock until such time as the
plaintiff, in the exercise of reasonable care and diligence,
should have been aware of the wrongful act and injury.
We again note that, EW "always knew" she had been
molested and had sought help for her psychological problems
since late adolescence. Such knowledge is sufficient to
require inquiry. "To allow a plaintiff, who fails to inquire
into the cause of an injury, to avoid the time bar under the
guise of 'discovery' would hopelessly demolish the protection
afforded defendants by the statute." Much v. Sturm, Ruger &
Co., Inc. (D. Mont. 1980), 502 F.Supp. 743, 745-746. We
decline to so hold.
Finally, it is argued that the running of the statutory
period should be tolled because E W 1 s injuries were not
complete until after the statute of limitations had run.
However, "it is not necessary to know the total extent of
damages that an act causes to begin the running of the
statute of limitations." Raymond, 737 P.2d at 317. See also
Blasdel v. Montana Power Co. (1982), 196 Mont. 417, 640 P.2d
889 (cause of action accrues when damages stabilize);
Heckaman, supra (cause of action accrues upon injury) . Few
are the injuries that could not someday develop additional
consequences. To adopt the theory advocated by EJ would
F
again postpone the statutory period indefinitely.
Section 27-1-203, MCA, provides that "damages may be
awarded ... for detriment .. . certain to result in the
future." In Frisnegger v. Gibson (1979), 183 Mont. 57, 598
P.2d 574, we construed § 27-1-203 consistent with the Montana
practice of instructing juries that damages need only he
reasonably certain. 183 Mont. at 71, 598 P.2d at 582. Under
the Frisnegger rationale, EW could have presented evidence
of, and received damages for, future harm, if any. She chose
not to do so, however.
Upon reaching majority in 1973, EW had suffered more
than sufficient damage to commence a cause of action. We
will not toll the statute of limitations indefinitely on the
basis of the supposition that additional damage might occur.
FRAUDULENT CONCEALMENT
In a related argument, EW contends that the discovery
rule is applicable because DCH fraudulently concealed the
wrongful nature of his relationship with EW. We find E W 1 s
argument strained at best.
"Fraudulent concealment has been described as the
employment of artifice, planned to prevent inquiry or escape
investigation, and mislead or hinder acquisition of
information disclosing a right of action." Monroe, 164
Mont. at 28, 518 P.2d at 790. While DCH's representations
may have initially constituted a species of fraudulent
concealment, such representations are not sufficient to cure
EW's subsequent knowledge.
There is no indication that EW is incompetent or that
she psychologically repressed the attacks. It is therefore
not unreasonable to assume that EW, upon reaching majority,
was aware that child molestation was a wrongful act; nor does
she deny her awareness. The furor caused by the disclosure
of the molestation and EW's subsequent references to
molestation as a child when she visited psychologists further
support this conclusion.
Reliance upon a fraudulent representation must be
reasonable. EW's continued reliance on statements made
during the late 1950's and early 1960's is not. At the very
least, the state of facts was sufficient to cause a
reasonable person to inquire.
SUMMARY JUDGMENT
EW's final specification of error concerns the District
Court's alleged determination of the validity of
psychological evidence, namely, whether EW knew she had been
wronged and whether her delay in discovering she had been
wronged was reasonable.
Rule 56 (c), M.R.Civ.P., provides that a motion for
summary judgment is proper if "there is no genuine issue of
material fact and ..
. the moving party is entitled to
judgment as a matter of law." From the evidence presented,
it is clear that EW "always knew" that she had been sexually
abused and that she was aware she suffered from psychological
problems. Conclusory or speculative statements concerning
the psychological intricacies of the mind in general are not
sufficient to raise a genuine issue of material fact. We
therefore conclude summary judgment was proper.
Upon reaching majority in 1373, EW had three years in
which to bring an action. While this Court is aware of the
horrifying damage inflicted by child molesters, it is not for
us to rewrite the statute of limitations to accommodate such
claims through judicial fiat. Such a task is properly vested
in the legislature.
The judgment of the District Court is affirmed.
Justice
We Concur:
Justices
Mr. Justice Fred J. Weber dissents as follows:
I would reverse the judgment dismissing the complaint.
In my view, the plaintiffs have raised a valid argument for
tolling the statute of limitations under the discovery rule.
In Bennett v. Dow Chemical Co. (Mont. 1986), 713 P.2d
992, 43 St.Rep. 221, this Court acknowledged that "a statute
of limitations can be tolled until the plaintiff discovers
the legal cause of his injury if equity so dictates."
Bennett, 713 P.2d at 995. The Court cited Hornung v.
Richardson-Merrill, Inc. (Mont. 1970), 317 F.Supp. 183. In
that case, the plaintiff had filed a tort claim in 1968 as a
result of cataracts. Plaintiff's damages were suffered prior
to September 1963, but he argued that he did not know
defendant's product was the cause of his cataracts until
within two years of the filing of the action in 1968. The
court denied defendant's motion for summary judgment, holding
that plaintiff's claim of lack of knowledge of the cause of
his injury was a factual question which should go to trial.
Hornung, 317 F.Supp. at 185.
In her affidavit, EW states that her adult psychological
problems have included nightmares, sexual dysfunction,
difficulty in relationships with men, depression, suicide
attempts, and drug and alcohol abuse. The essence of
plaintiffs' argument for applying the discovery rule is that,
although EW was always aware that she had been molested as a
child, and had suffered from psychological problems since
late adolescence, - was - aware until ---
she - not 1983 that her adult
psychological problems were likely - result - - sexual
a of the
molestation she suffered - - child. Plaintiffs offered to
as a
prove that while EW had received psychological counseling for
a number of years prior to 1983, it was not until 1983 that a
counseling professional alerted her to the connection between
her current problems and the childhood molestation. It
appears that the court properly could have applied the
Bennett theory that the statute of limitations could be
tolled prior to 1983, when plaintiffs discovered the legal
cause of EW's injury. I conclude that it would be
appropriate to allow the plaintiff to present her facts to a
trier of fact in order to determine whether or not the
circumstances justify the tolling of the statute of
limitations.
Since my view has not gained the support of the
majority, I do agree with the majority's suggestion that the
Legislature give its attention to special discovery rules for
cases involving sexual abuse of children.