Harralson v. Monger

Opinion of the Court by

Justice WINTERSHEIMER.

This appeal is from a decision of the Court of Appeals which affirmed a judgment of the circuit court dismissing an amended complaint as untimely.

The question presented is whether the two-year statute of limitations is tolled because of alleged misrepresentations made by Jacobs to police immediately following the collision.

The parties were involved in a six vehicle collision in which the vehicle driven by Monger first collided with the automobile *337of Jacobs. Then, the Monger vehicle struck two other stationary vehicles including that driven by Harralson resulting in a chain reaction accident involving two other stationary vehicles.

Based on interviews with Jacobs and other witnesses at the scene, a police accident report indicated that Monger was at fault. Harralson, who had waived no-fault coverage, timely filed a negligence claim against Monger. Monger, in turn, filed a third-party complaint against Jacobs, following the deposition of Jacobs wherein he stated that the side-swiped collision with the Monger vehicle occurred when he started to pull into the right hand lane occupied by Monger. Harralson was then granted leave in July 2003 to amend his complaint to assert a claim against Jacobs.

Jacobs then filed a motion to dismiss the amended complaint claiming that it was not filed within the two-year statute of limitations and that it did not relate back to the original filing date. The trial judge, relying on Nolph v. Scott, 725 S.W.2d 860 (Ky.1987), granted the motion to dismiss, determining that there was no evidence that Jacobs had timely notice of a possible claim against him and that the pleadings do not reveal that Jacobs intentionally concealed or misrepresented his actions. The trial judge rejected any claim that the limitations period should be tolled on the grounds of fraud. The Court of Appeals affirmed the decision of the trial judge and this Court accepted discretionary review.

KRS 304.39-230(6) provides that a plaintiff who has rejected no fault insurance must commence an action for tort liability within two years of the injury. An amended pleading relates back to the date of the original pleading only if it satisfies the requirements of CR 15.03. That rule provides in pertinent part as follows:

(1) Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
(2) An amendment changing the party against whom a claim is asserted relates back if the condition of paragraph (1) is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (b) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

There is no question that the amended complaint relates back to the original collision so as to satisfy CR 15.03(1). The only question here is whether Jacobs had sufficient notice of the claim that would not have prejudiced him in maintaining a defense in that “but for a mistake concerning the identity of the proper party” Jacobs knew or should have known that an action could have been brought against him. CR 15.03(2).

Monger first disputed the police accident report during her December 2002 deposition when she testified that Jacobs hit her. She stated that the impact diverted her attention and she was then unable to avoid hitting the stationary vehicles in her path. Monger suffered a head injury in the collision and did not recall speaking with the investigating officer after the collision. She was taken to the hospital by ambulance and did not speak with the investigating officer. Jacobs was the only person who could speak with the officer regarding the initial collision. He indicated that Monger “came up really fast ... and actually hit him and then careened off *338his car.” Although Monger thought she later informed her insurance company that Jacobs had hit her, she never pursued a claim against him. She testified that she learned that she was listed on the accident report as the driver at fault only after Harralson filed his suit. She then deposed Jacobs who contradicted her claims by testifying that she had abruptly swerved in front of him several blocks before the accident.

The investigating officer was deposed after Monger and Harralson filed their third party and amended complaints. His testimony was that Jacobs never indicated that “he merged into her lane and hit her first,” and that such an admission would have been included in the accident report.

Harralson argues on appeal that Jacobs fraudulently misrepresented or concealed his liability or identity and should be es-topped from pleading the statute of limitations. He claims that to allow Jacobs to benefit from his own deception would encourage others to misrepresent and conceal facts reported to law enforcement for accident reports. He argues that the statute of limitations should be tolled when a motorist conceals or misrepresents to an investigating officer his role in causing the accident or when he only provides a complete account of the accident when he is deposed under oath after the statute of limitations has expired.

The response by Jacobs claims that Har-ralson has distorted the facts in order to divert attention from a failure to investigate the claim in a timely manner. Jacobs denies that he engaged in any concealment or misrepresentation.

Harralson relies on Underhill v. Stephenson, 756 S.W.2d 459 (Ky.1988). That case was a medical malpractice action in which the plaintiff sought to amend his complaint to add a nurse as an additional defendant. The alleged misrepresentation on the part of a nurse concerning the presence of the physician in the emergency room and the identity of the nurse was not discovered until the depositions were taken. The alleged negligent act of the nurse was unknown until the physician’s deposition was taken. This Court reversed and remanded for a new trial. The motion in that case was timely because it was filed within one year of the time the misrepresentation was discovered.

Here, the applicable statute requires the limitation period to be calculated from the date of the injury rather than from the date of identification of the alleged tortfea-sor. KRS 304.39-280(6).

Munday v. Mayfair Diagnostic Laboratory, 831 S.W.2d 912 (Ky.1992), is another medical negligence action against a diagnostic laboratory that was a partnership. This Court held that an error by partners doing business under an assumed name to comply with the statute requiring filing of a certificate was sufficient to create an estoppel under the tolling statute and thus the statute of limitations was tolled during the period of noncompliance. That court recognized that although concealment ordinarily requires an affirmative act, failure of disclosure may constitute concealment or at least amount to misleading or obstructive conduct thereby tolling the statute. KRS 413.190(2).

Here, Jacobs clearly changed his version of events that he had related to the police officer and indicated for the first time that he had entered the lane of travel occupied by Monger. Prior to the filing of suit, there was no evidence implicating Jacobs as a negligent party. Consequently, the lawsuit was filed against Monger on the basis of the accident report.

Nothing in KRS 413.245 permits the limitations period to be calculated from the date of the identification of the alleged *339tortfeasor. The statute requires that a cause of action be filed within one year from the date of the occurrence or from the date when the cause of action was or reasonably should have been discovered by the injured party.

As previously noted in Underhill, supra, the alleged misrepresentation was not discovered until the physician’s deposition was taken. Similarly in Munday, supra, this Court recognized exceptions to a strict rule of statutory limitations when a party is estopped from relying on the tolling statute by virtue of a misrepresentation or concealment. Munday also indicated that concealment may be demonstrated by an affirmative act or silence when the law imposes a duty to speak.

Considering the same decision and statutes, the Court of Appeals in Roman Catholic Diocese of Covington v. Seder, 966 S.W.2d 286 (Ky.App.1998), held “where the law imposes a duty of disclosure, a failure of disclosure may constitute concealment under KRS 413.190(2), or at least amount to misleading or obstructive conduct.” Here, KRS 519.040 provides a misdemean- or offense for falsely reporting an incident. There is no doubt that Jacobs did not give a full and complete disclosure of the circumstances of the accident to the investigating officer.

KRS 189.580 requires a party to provide complete and truthful information regarding vehicular collisions. See St. Clair v. Bardstown Transfer Line, 310 Ky. 776, 221 S.W.2d 679 (1949), which held that the purpose of the statute is to provide a means for injured parties to seek compensation.

The duty of Jacobs to provide complete and truthful information for the accident report was highlighted because of the fact that he was the only person who spoke to the police officer making the report. Monger was on her way to the hospital and did not speak to the officer. Inaccurate information provided for the report is of critical importance in this matter because it shifted the burden of responsibility which could otherwise not be known by Harralson.

Here, Jacobs initial account of the incident implicated only Monger. According to the officer who prepared the report, Jacobs was unequivocal in his explanation that Monger caused the collision. It was only after his deposition on March 10, 2003, that Jacobs finally admitted that he entered Monger’s lane of traffic and collided with her vehicle.

When the facts are viewed in the light most favorable to Harralson, the fact that Jacobs concealed his role in the accident provides a basis for the amended complaint. Consequently, Jacobs should be estopped from relying on the specific statute of limitations in this case because of such misrepresentation relating to the initial collision. The two-year statute of limitation should be tolled until Harralson received notice of the true facts. The amended complaint against Jacobs was filed within two years after discovery of the actual situation.

The attempt by Jacobs to call the statement “technically” true is without merit. A half truth may be as vicious as an expressed misrepresentation. See Toppass v. Perkins, 268 Ky. 186, 104 S.W.2d 423 at 431 (1937). Cf. United Parcel Service v. Rickert, 996 S.W.2d 464, 469 (1999), which provides an instructive review of fraud and related matters. See also Restatement (Second) of Torts § 529 (1977), which indicates that stating a more partial truth can be fraudulent if it is materially misleading. If Jacobs had provided information for an accurate report or made statements consistent with his later deposition, he would have undoubtedly been named as a defendant within the time limit.

*340It is clearly not good public policy to allow a person who presents inaccurate information to benefit from the misrepresentation. When the benefits realized from strict enforcement of the statute of limitations are weighed against the problems created by either silence, half-truths, or material omissions, the scale clearly favors the tolling of the two year limitations in this case.

The decision of the Court of Appeals is reversed. This matter is remanded for trial.

LAMBERT, C.J., GRAVES, McANULTY and SCOTT, JJ., concur. MINTON, J. dissents by separate opinion and is joined by ROACH, J.