Piles v. Allstate Insurance

HUNTER, Judge,

concurring.

While I concur with the majority that the ruling of the trial court should be reversed for the reasons stated therein, I write separately to clarify when the statute of limitations began to run against Ms. Piles on her claims of fraud and constructive fraud.

I agree that “the critical dates at issue in Ms. Piles’s complaint are when she discovered or reasonably should have discovered the alleged fraud or negligence committed by Allstate Insurance and Mr. McGhee[.]” I disagree, however, that the dates are material as to when she exhausted the policy limits of the other motorist’s insurance company.

As the majority correctly notes, this is not “a UIM claim against Allstate Insurance [,]” but is an action alleging, inter alia, fraud and constructive fraud. The statute of limitations on actions based on fraud begins to toll when the party actually discovers the fraud “or the time when the fraud should have been discovered in the exercise of due diligence.” Spears v. Moore, 145 N.C. App. 706, 708, 551 S.E.2d 483, 485 (2001). In this case, Ms. Piles alleged that she discovered the fraud on 3 March 2003, when she received a copy of the Selection/Rejection Form related to UIM. Accordingly, were the jury to agree with her that she should have discovered the fraud on that date and not before, Ms. Piles would have had three years from 3 March 2003 in which to file a suit for fraud and ten years for filing her action on constructive fraud. See N.C. Gen. Stat. § 1-52(9) (2005) (party may file action on fraud within three years of discovering the facts constituting the fraud); Adams v. Moore, 96 N.C. App. 359, 362, 385 S.E.2d 799, 801 (1989) (aggrieved party has ten years in which to file an action for constructive fraud). She filed her actions within both applicable statutes of limitation in November 2005. Her claims on fraud, therefore, should not have been dismissed for failure to bring a cause of action within the statutory time frame.

Because this is not a UIM action, Ms. Piles was not required to exhaust the policy limitations on the other motorist’s liability coverage before bringing her actions for fraud. Were that the case, Ms. Piles *408would have three years to file her action for fraud from November 2004, the date on which the policy limits were exhausted. This is not the standard to determine when a claim of fraud begins to toll. Accordingly, I disagree with the majority insofar as they hold that Ms. Piles can wait to exhaust the policy limitations before the statute of limitations starts to run in the present action.