The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER and JUSTICE BENJAMIN, deeming themselves disqualified,
did not participate in the decision of this case.
JUDGE JOHN T. MADDEN and JUDGE RUDOLPH J. MURENSKY, II, sitting by temporary
assignment.
JUSTICE ALBRIGHT and JUDGE MADDEN dissent and reserve the right to file dissenting
opinions.
Per Curiam:
Kimberly Merrill and Teresa Mayfield (hereinafter
collectively referred to as “Kimberly and Teresa”), plaintiffs below
and appellants herein, appeal an order of the Circuit Court of Kanawha County
granting summary judgment in favor of the defendant below and appellee, the West
Virginia Department of Health and Human Resources (hereinafter referred to as “DHHR”). (See
footnote 1) Kimberly and Teresa have asserted various claims against
DHHR arising from the services, or lack thereof, provided to them during their
infancy by DHHR in relation to sexual abuse they suffered at the hands of their
father. The Circuit Court of Kanawha County granted summary judgment based, in
part, upon its conclusion that the discovery rule did not operate to toll the
running of the statute of limitations in this case. We agree, and therefore affirm
the circuit court's order.
“'[a]
motion for summary judgment should be granted only when it is clear that there
is no genuine issue of fact to be
tried and inquiry concerning the facts is not desirable to clarify the application
of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal
Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).” Syllabus
Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d
247 (1992).
Syl. pt. 2, Painter. In other words,
[s]ummary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.
Syl. pt. 4, Painter. Finally, we note that “[t]he circuit court's
function at the summary judgment stage is not to weigh the evidence and determine
the truth of the matter, but is to determine whether there is a genuine issue
for trial.” Syl. pt. 3, Painter.
If any person to whom the right accrues to bring any such personal action, suit or scire facias, or any such bill to repeal a grant, 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 of this article, except that it shall in no case be brought after twenty years from the time when the right accrues.
W. Va. Code § 55-2-15 (1923) (Repl. Vol. 2000) (emphasis added).
Kimberly reached the age of majority on May 3, 1983, while Teresa turned eighteen
on March 11, 1987. Accordingly, unless the statute of limitations is extended
by operation of the discovery rule, their claims became time barred after May
3, 1985, and March 11, 1989 respectively.
“Generally, a cause of action accrues
(i.e., the statute of limitations begins to run) when a tort occurs; under the
'discovery rule,' the statute of limitations is tolled until a claimant knows
or by reasonable diligence should know of his claim.” Syl. pt. 1, Cart
v. Marcum, 188 W. Va. 241, 423 S.E.2d 644 (1992). (See
footnote 9) In West Virginia, two versions of the discovery rule
have been developed:
A
studious observer will note that this Court stated one form of the discovery
rule in Cart v. Marcum, and then stated a
different, more lenient form of the discovery rule in Gaither v. City Hospital[,
Inc., 199 W. Va. 706, 487 S.E.2d 901 (1997)] . . . .
. . . .
[D]ecisions such as Keesecker[ v. Bird, 200 W. Va. 667, 490
S.E.2d 754 (1997)] make clear that . . . Cart v. Marcum governs
only those cases where the plaintiff is compelled to allege some deed by the
defendant concealed the cause of action from the plaintiff.
Miller v. Monongalia County Bd. of Educ., 210 W. Va. 147, 153 n.3,
556 S.E.2d 427, 433 n.3 (2001). In determining whether the circuit court correctly
found that the evidence did not satisfy the elements of the discovery rule
in the instant case, we will address each version of the rule, beginning with
the version of the rule announced in Gaither.
[i]n tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury.
199 W. Va. 706, 487 S.E.2d 901 (1997). Considering each of these criteria,
we find no error in the circuit court's grant of summary judgment in favor
of DHHR under a Gaither analysis.
The first of the three elements necessary
to trigger the running of the statute
of limitations under Gaither is that the plaintiffs either know, or
by the exercise of reasonable diligence, should know that they have been injured.
In their response to DHHR's summary judgment motion and in their brief to this
Court, Kimberly and Teresa indicate that their injury was DHHR's failure to
protect them by timely removing them from their father's home. Notably, however, “failure
to protect” does not describe an injury. Rather, it relates to the duty
of DHHR that was claimed to have been breached in this case. Based upon the
totality of the arguments set forth by Kimberly and Teresa, we surmise that
the injury of which they complain is their continued exposure to sexual abuse
at the hands of their father that occurred subsequent to the point in time
when, they contend, DHHR should have removed them from the home, and the physical
and psychological injuries that resulted therefrom.
We find no material question of fact exists
in this case with respect to Kimberly's and Teresa's knowledge of their injury.
In separate affidavits attached to the plaintiffs' response to DHHR's motion
for summary judgment, both Kimberly and Teresa made the statement “I was
sexually abused by my father, Albert Kirchmar, from the earliest age that I can
remember.” They both further stated, “[d]uring my childhood, I reported
the abuse on a number of occasions to people in my life who I felt were figures
of authority, including the representatives of the agency that is now called
the West Virginia Department of Health and Human Resources.” Without question,
then, both Kimberly and Teresa have
demonstrated that they knew they were being sexually abused by their father,
and that the sexual abuse continued after they reported the same to individuals
they considered to be “figures of authority.” Moreover, each woman
further explained that her resulting physical and emotional injuries had existed
throughout her adulthood: “throughout my adulthood, I suffered extreme
physical and emotional pain as a result of this continued sexual abuse. I have
had a difficult time trying to form positive trusting relationships, very low
self-esteem, aggravated difficulty in terms of education and career, and a
great deal of personal anxiety.” Teresa alone made the additional comment
that she had “attempted suicide on two occasions.” Based upon these
statements in their affidavits, there is simply no genuine issue of material
fact with respect to whether Kimberly and Teresa knew of their injury when
they reached adulthood, as they have demonstrated plainly that they have been
aware of their injuries their entire adult lives.
The next factor that must be present to trigger
the running of the statute of limitations under Gaither is that the plaintiff
knew or by the exercise of reasonable diligence should have known “the identity
of the entity who owed the plaintiff a duty to act with due care, and who may
have engaged in conduct that breached that duty.” With respect to this factor,
Kimberly and Teresa argue that, prior to their therapy, they did not know that
DHHR owed them a duty of protection or that DHHR had breached that duty. This
argument, however, misapprehends the second factor of Gaither. The second Gaither factor
is the
identity of the wrongdoer, not knowledge of the duty owed. In fact,
it has been established that a lack of knowledge of a legal duty owed will
not toll the statute of limitations. See Hays v. City & County
of Honolulu, 81 Hawai'i 391, 399, 917 P.2d 718, 726 (1996) (“[P]laintiff's
lack of knowledge regarding a legal duty, the breach of which may have caused
the plaintiff injury, will not justify application of the discovery rule.”).
We find this principle particularly persuasive where the alleged tortfeasor
is a public agency whose duties are established by statute. See, e.g., Ormiston
v. Nelson, 117 F.3d 69, 72 n.5 (2d Cir. 1997) (“Mere ignorance of
the law is, of course, insufficient to delay the accrual of the statute of
limitations.”); Miller v. Pacific Shore Funding, 224 F. Supp. 2d
977, 986 (D. Md. 2002) (“The discovery rule, in other words, applies
to discovery of facts, not to discovery of law. Knowledge of the law is presumed.”); Bluitt
v. Houston Indep. Sch. Dist., 236 F. Supp. 2d 703, 718 (S.D. Tex.
2002) (“It is well established that mere ignorance of the law for any
reason, including lack of counsel, does not toll a statute of limitations.”); Orlikow
v. United States, 682 F. Supp. 77, 84 (D.D.C. 1988) (“In United
States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d
259 (1979), a medical malpractice case, the Supreme Court held that the plaintiff's
ignorance of his legal rights did not constitute the 'blameless ignorance'
for which tolling is applied. Neither does ignorance of the law ordinarily
toll the statute of limitations.” (additional citation omitted)); Greene
v. Team Props., Inc., 247 Ga. App. 544, 546, 544 S.E.2d 726, 728 (Ga. Ct.
App. 2001) (“[I]gnorance of the law offers no legal excuse for failing
to file an action within the applicable statute of limitation.”), overruled
on other
grounds by Tiismann v. Linda Martin Homes Corp., 279 Ga. 137, 610
S.E.2d 68 (2005); People v. Lander, 215 Ill. 2d 577, 588, 831 N.E.2d
596, 603, 294 Ill. Dec. 646, 653 (2005) (“It is well settled that
all citizens are charged with knowledge of the law. . . . Ignorance
of the law or legal rights will not excuse a delay in filing a lawsuit.” (citations
omitted)); Moreland v. Aetna U.S. Healthcare, Inc., 152 Md. App.
288, 297-98, 831 A.2d 1091,1096 (Md. Ct. Spec. App. 2003) (“The discovery
rule, in other words, applies to discovery of facts, not to discovery of law.
Knowledge of the law is presumed. . . . Ignorance of the
rights it grants and protects does not toll the statute of limitations.” (internal
citations and quotation omitted)); Lynch v. Dial Fin. Co. of Ohio No. 1,
Inc., 101 Ohio App. 3d 742, 747, 656 N.E.2d 714, 718 (Ohio Ct.
App. 1995) (“Even if, arguendo, the discovery rule did apply to statutory
claims, it would apply to the discovery of facts, not to the discovery of what
the law requires.”).
In order to toll the statute under the discovery
rule as announced in Gaither, it is not the legal duty owed that must
have escaped knowledge by Kimberly and Teresa, but rather the identity of
the tortfeasor. In their affidavits that were attached to Kimberly and Teresa's
response to DHHR's first motion for summary judgment, both women made identical
statements asserting “I did not know what entity DHHR representatives were
with when I was a child . . . .” However, a review of
their deposition testimony demonstrates that Kimberly and Teresa have long known
the identity of those who they contend caused them
harm. In this regard, when Kimberly was asked during her deposition about her
recollection of a home visit by Kaaren Ford, a social service worker for DHHR,
Kimberly stated:
I have a recollection of someone coming to the home, to the trailer, and all of us sitting around a table, a kitchen table, my mother and my father, my sister and my brother, myself and this other person.
I knew that she was someone of an agency or something. . . .
Kimberly additionally testified that she had some, though incomplete, recollections of various meetings at which a social worker identified as Ms. Randolph was present. (See footnote 10) Furthermore, when Kimberly was asked if she had any reason to dispute the accuracy of a note prepared by Ms. Randolph regarding portions of a meeting Kimberly was unable to recall, she responded that “I do have reason, because I felt like I was let down then, and I don't know if I trust everything in these notes.” (Emphasis added). This statement clearly indicates that Kimberly recalled the involvement of Ms. Randolph in 1982 and that, at that time, she felt that she had been “let down.” She also remembered that there was a court proceeding where Ms. Randolph was present, and she remembered being placed in foster care. (See footnote 11) Finally, however, and most significantly, Kimberly testified that in June of 1984, after she had reached the age of adulthood and learned that her sister Teresa was being sexually assaulted by their father, Kimberly called DHHR and reported her sister's abuse: (See footnote 12)
Q. Before
we begin, it's my understanding _ and I'll show it to you out of my notebook
here _ on 6-18-84 there's a referral for Child Protective Services; and I think
we've established that on 6-18-84, thereabouts, you actually called Health and
Human Resources and reported that your sister was being sexually abused by your
father. Your name is redacted, which is _ but I believe we established you were
the one more likely than not that made the call, correct?
A. Yes.
Q. Okay,
so in June of 1984 you reported to the DHHR that your sister was being sexually
abused, correct?
A. Correct.
Kimberly also stated that, after reporting her sister's abuse, she spoke with “different
social workers” regarding her sister and her own prior sexual abuse. (See
footnote 13)
Teresa's testimony likewise established that
it was Kimberly who had reported Teresa's abuse to DHHR:
Q. . . . Do
you recall your sister reporting to the DHHR that your father was sexually abusing
you?
A. Yes,
I remember
Teresa also testified that she remembered Brenda Morgan, a DHHR social worker
assigned to her case, very well and recalled having lots of meetings with Ms.
Morgan. (See footnote
14)
The deposition testimony of Kimberly and
Teresa clearly demonstrates that, sometime during the period when they and their
family were involved with DHHR (which was prior to their reaching the age of
majority), they became aware of DHHR and the identity of specific social workers
who were assigned to them by DHHR. In particular, they were able to specifically
identify Ms. Randolph and Ms. Morgan, and, after reaching age eighteen, Kimberly
was able to contact DHHR to report that her sister was being abused. Accordingly,
there is simply no genuine issue of material fact with respect to whether Kimberly
and Teresa knew of the identity of the tortfeasor in this case, as they have
demonstrated plainly that they have possessed this knowledge their entire adult
lives. (See footnote 15)
The third and final element of Gaither requires
Kimberly and Teresa to establish that they neither knew nor by the exercise of
reasonable diligence, should have known that the conduct of DHHR had a causal
relation to their physical and emotional injuries. Kimberly and Teresa essentially
argue that, prior to intensive therapy, they did not comprehend the causal connection
between their injuries and the actions of DHHR during the time in which they
were being sexually abused by their father. (See
footnote 16) However, the only
evidence presented to the circuit court on this issue by Kimberly and Teresa
was their respective affidavits. In this regard, Kimberly stated in her affidavit:
7. As
adults, both my sister and I sought counseling and therapy for severe emotional
problems, difficulty maintaining relationships and severe depression which we
learned through therapy stemmed from the past physical, sexual and emotional
abuse by my father.
8. The
therapy helped me remember more fully the incidents of sexual assault by my father;
and to discover the fact that the DHHR was involved.
9. During
the therapy in early to mid-2000, I mentioned to my counselor, Melanie Rogers,
that I had been in foster care. This triggered her to realize that the Department
of Health and Human Resources had been involved, and she thought it would be
helpful for me to review the DHHR records concerning my case.
. . . .
13. I
did not discover until after I underwent therapy and reviewed the DHHR records
on October 2, 2000 that the DHHR failed to protect my sister and I from my father
and that this failure caused the damages we have suffered and continue
to suffer. . . .
Teresa's affidavit contained paragraphs identical to paragraphs 7 and 8 of Kimberly's affidavit, and further stated:
13. I
did not discover until after I had a conversation with my sister Kimberly after
she had reviewed the DHHR records on October 2, 2000 that the DHHR failed to
protect my sister and I from my father and that this failure caused the damages
we have suffered and continue to suffer. . . .
The record does not contain any corroborating
affidavits from any counselors who treated Kimberly or Teresa, nor do Teresa
and Kimberly direct our attention to any other evidence in the record supporting
their allegations of the reasonableness of a delay of over seventeen years for
Kimberly, (See footnote
17) and more than thirteen years for Teresa, (See
footnote 18) in discovering the causal connection between their injuries
and the actions of DHHR. This Court has repeatedly explained that “the party
opposing summary judgment must satisfy the burden of proof by offering more than
a mere 'scintilla of evidence,' and must produce evidence sufficient for a reasonable
jury to find in a nonmoving party's favor.” Painter v. Peavy, 192
W. Va. 189, 192-93, 451 S.E.2d 755, 758-59 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252,
106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). (See
footnote 19)
Moreover, we have explained that “self-serving
assertions without factual support in the record will not defeat a motion for
summary judgment.” Williams v. Precision Coil, Inc., 194 W. Va.
52, 61 n.14, 459 S.E.2d 329, 338 n.14 (1995). See also Dunn v. Watson,
211 W. Va. 418, 421, 566 S.E.2d 305, 308 (2002) (same, citation omitted); Coleman
v. Sopher, 201 W. Va. 588, 612, 499 S.E.2d 592, 616 (1997) (same). Indeed,
we have elaborated that
The
movant's burden is “only [to] point to the absence of evidence supporting
the nonmoving party's case.” Latimer v. SmithKline & French Laboratories,
919 F.2d 301, 303 (5th Cir. 1990). . . . If the movant . . . make[s]
this showing, the nonmovant must go beyond the pleadings and contradict the showing
by pointing to specific facts demonstrating a “trialworthy” issue. To
meet this burden, the nonmovant must
identify specific facts in the record and articulate the precise manner in
which that evidence supports its claims. As to material facts on which
the nonmovant will bear the burden at trial, the nonmovant must come forward
with evidence which will be sufficient to enable it to survive a motion for
directed verdict at trial. If the nonmoving party fails to meet this burden,
the motion for summary judgment must be granted. See Nebraska v.
Wyoming, 507 U.S. 584, 590, 113 S. Ct. 1689, 1694, 123 L. Ed. 2d
317, 328 (1993); Lujan v. National Wildlife Federation, 497 U.S. 871,
884, 110 S. Ct. 3177, 3186, 111 L. Ed. 2d 695, 713 (1990).
Powderidge Unit Owners Ass'n v. Highland Props., Ltd., 196 W. Va.
692, 699, 474 S.E.2d 872, 879 (1996) (emphasis added). In this case, Kimberly
and Teresa have utterly failed to provide any supporting affidavits to corroborate
their self-serving statements, and have further failed to “identify specific
facts in the record and articulate the precise manner in which that evidence
supports [their] claims” of delay in discovering the causal connection
between their injuries and DHHR's actions. Id. Accordingly, they have
not established the existence of a genuine issue of material fact with respect
to their knowledge of a causal connection between their injury and DHHR's actions.
Kimberly and Teresa have failed to establish
the existence of a genuine question of material fact with respect to any of the
factors set out in Syllabus point four of Gaither. (See
footnote 20) “Summary judgment is appropriate where the record
taken as a whole could not
lead a rational trier of fact to find for the nonmoving party, such as where
the nonmoving party has failed to make a sufficient showing on an essential
element of the case that it has the burden to prove.” Syl. pt. 4, Painter. (See
footnote 21) Because the statute of limitations was not tolled
under Gaither, Kimberly and Teresa were required to bring their cases
within two years of turning eighteen. Their claims were not filed within that
period and, therefore, summary
judgment was proper under a Gaither analysis.
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.
Syl. pt. 3, Cart. Thus, under Cart, Kimberly and Teresa are required to make a strong showing that some action by DHHR prevented them from knowing of the wrong at the time of their injury. In Miller v. Monongalia County Board of Education, 210 W. Va. 147, 556 S.E.2d 427, this Court additionally held that
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.
Syl. pt. 3, id.
Before this Court, Kimberly and Teresa argue
that an omission on the part of DHHR prevented them from knowing of their claims.
Specifically, Kimberly and Teresa contend that there
was unrefuted evidence that the Appellants had difficulty in acquiring their
records from the DHHR once they were requested and that, had such delay not occurred,
the statute of limitations would have been preserved. . . . Even
when the records were produced by DHHR, there is a substantial factual issue
as to whether all their records were provided. The Petitioners [Kimberly and
Teresa], in their affidavits submitted in opposition to the Motion for Summary
Judgment both maintained that it was not until they sought the assistance of
counsel that a process began which eventually provided them with copies of all
of their records. Further, . . . the Petitioners contend
that they were entitled to full information about their case which was never
provided them by any of those who bore a fiduciary obligation to them.
The best that we are able to discern from this argument is that Kimberly and
Teresa assert that if DHHR had not delayed in turning over the requested records, “the
statute of limitations would have been preserved.” This argument has no
merit. It is undisputed that no records were requested from DHHR until sometime
in the year 2000, long after the expiration of the statute of limitations.
As our Gaither analysis above demonstrates, Kimberly and Teresa possessed
knowledge of the critical facts necessary to bring their lawsuit at the time
they each turned eighteen. Thus, any facts that may have been revealed in the
requested DHHR records were irrelevant to tolling the statute of limitations. (See
footnote 22) Accordingly, the circuit court did not err in granting
summary judgment.