Davis, Chief Justice:
This case presents certified questions relating to whether the continuing tort
theory may be applied to toll the three-year statute of limitations set out in W. Va. Code § 46-
3-118(g) (1993) (Repl. Vol. 2001) in connection with a civil action for the conversion of
multiple, separate negotiable instruments. We conclude that the continuing tort theory may
not be so applied.
In a case governed by the three year limitations period
provided for in West Virginia Code 46-3-118(g):
(a) Does the continuing tort theory apply to the alleged
conversion of multiple, separate negotiable instruments made
payable to the plaintiff's business by an employee of plaintiff to
her personal checking account at defendant bank over a period
of several years, such that the cause of action accrues at, and the
statute of limitations does not begin to run until, the date of the
alleged conversion of the last negotiable instrument, permitting
damage claims for instruments allegedly converted more than
three years prior to the filing of the complaint, or
(b) Does the cause of action accrue and the limitations
period run from the date of the negotiation of each separate
instrument permitting damage claims only for such instruments
allegedly converted within such three year period prior to the
filing of the complaint?
The circuit court answered question (a) in the negative and answered question
(b) in the affirmative. This Court accepted the certified questions for review by order entered
March 2, 2006. Having considered the parties' appellate briefs, including the brief of amici
curiae, (See footnote 5) the pertinent authorities, and the oral arguments presented, we now answer the
certified questions in the same manner they were answered by the circuit court. (See footnote 6)
Unless governed by other law regarding claims for
indemnity or contribution, an action (I) for conversion of an
instrument, for money had and received, or like action based on
conversion, (ii) for breach of warranty or (iii) to enforce an
obligation, duty, or right arising under this article and not
governed by this section must be commenced within three years
after the cause of action accrues.
Because many of the transactions between WesBanco and Ms. Hendrickson involving the
fraudulently endorsed checks occurred more than three years before Copier filed its
complaint in this case, Copier sought to extend the operation of the statute of limitations by
asserting that WesBanco's conduct amounted to a continuing tort. We find three separate
grounds for reaching our conclusion that the circuit court correctly rejected the continuing
tort theory when answering the questions herein certified. First, the act of converting
multiple, separate negotiable instruments does not fall within the meaning of a continuing
tort as that theory has been previously applied in West Virginia; second, the statutory
provision setting out the applicable statute of limitations clearly expresses a legislative intent
that each act of conversion be treated separately for limitations purposes; and finally,
application of a continuing tort theory would be contrary to the policy and purposes
underlying the Uniform Commercial Code (hereinafter referred to as “the UCC”).
Where a tort involves a continuing or repeated injury, the
cause of action accrues at and the statute of limitations begins to
run from the date of the last injury or when the tortious overt
acts or omissions cease.
211 W. Va. 466, 566 S.E.2d 603 (2002). Thus, Graham instructs that in order to toll the
statute of limitations under a continuing tort theory, there must be a “continuing or repeated
injury.” Id. To determine whether the conversion of multiple, separate negotiable
instruments amounts to “a continuing or repeated injury,” we find it useful to review some
of the circumstances under which we have either applied or declined to apply a continuing
tort theory.
The pertinent portion of the Graham opinion involved a lawsuit by home
owners Spencer and Helen Graham against Earle and Jean Parker. The Parkers were the
developers of a housing complex adjacent to the Grahams' property. In the course of
building the complex, a storm water management system, also referred to as an infiltration
system, was constructed. The storm water management system allegedly altered the flow of
surface water onto the Grahams' land thereby causing damage to the Grahams' real and
personal property. The circuit court granted summary judgment in favor of the Parkers with
respect to the Grahams' negligence claim based in part upon its finding that the cause of
action was “time-barred by the relevant statute of limitations.” Graham v. Beverage, 211
W. Va. at 476, 566 S.E.2d at 613. The Grahams appealed to this Court claiming, in part, that
the Parkers' conduct amounted to “a continuing breach of duty causing a continuing or
repeated injury”; therefore, the statute of limitations did not begin to run “until the date of
the last injury.” Id. The Graham Court observed that
the thrust of the Grahams' complaint is that the construction of the infiltration system as well as the continuing wrongful conduct of the Parkers in negligently failing to take action with regard to correcting the alleged inadequacies of that system is causing continuing injuries to their real and personal property.
Id. at 477, 566 S.E.2d at 614. The Court then concluded that “we do not find the negligence
claim time-barred because the alleged negligence of the Parkers complained of by the
Grahams constitutes continuing wrongful conduct from which continuing injuries emanate.” Id. (emphasis added).
Syllabus point 11 of Graham, which formally adopted the continuing tort
theory in this jurisdiction, was derived from this Court's per curiam opinion in Handley v.
Town of Shinnston, 169 W. Va. 617, 289 S.E.2d 201 (1982). In Handley, a water
transmission line installed on the Handleys' property by the Town of Shinnston began to leak
sometime in 1972. The town was notified of the leak at that time. Nevertheless, the leak
“continued until October, 1976, when the waterline ruptured causing a crack to appear on the
surface of the [Handleys'] yard.” Handley, 169 W. Va. at 618, 289 S.E.2d 202. Although
the town repaired the crack, the leak continued until the waterline was removed in 1978. The
crack that had initially appeared in 1976 continued to “expand and slip” even after the
removal of the waterline. Id. “As a result, a large crater developed in the yard, and the
foundation of the house shifted.” Id. The Handleys' filed their civil action on May 10, 1979.
The circuit court granted summary judgment in favor of the town finding that the action was
barred by the applicable two-year statute of limitations. On appeal, this Court reversed,
reasoning that
In this case it is clear that the damage did not occur all at once but increased as time progressed; each injury being a new wrong. . . .
Donald Handley's deposition indicates that the damage
to the property continued even after the suit was filed. If the
tortious act in this case did indeed cease, it was not until 1978,
when the leaking waterline was removed from the appellants'
property. As the record clearly shows that the appellants filed
suit on May 10, 1979, less than two years after the waterline was
removed, the action was not barred by the statute of limitations,
and the circuit court erred in granting summary judgment. . . .
169 W. Va. at 619-20, 289 S.E.2d at 202-03. The Graham and Handley cases both
demonstrate instances where a wrongful act was sustained over time, causing continuing
damages. (See footnote 7) Having observed circumstances under which this Court has applied the continuing
tort theory, we now consider cases wherein the theory was rejected.
In Ricottilli v. Summersville Memorial Hospital, 188 W. Va. 674, 425 S.E.2d
629 (1992), Mrs. Ricottilli filed suit against Summersville Memorial Hospital, Charleston
Area Medical Center (hereinafter referred to as “CAMC”), and others, in connection with the
death of her six-year-old daughter. Mrs. Ricottilli's complaint against CAMC was dismissed,
apparently at least in part due to the expiration of the statute of limitations. (See footnote 8) Mrs. Ricottilli's
claims against CAMC were for outrageous conduct or intentional infliction of emotional
distress resulting from CAMC's nearly ten month delay in providing Mrs. Ricottilli with a
copy of her daughter's autopsy report, and its failure to report the results of a particular tissue
sample analysis. Her lawsuit was filed outside the applicable one-year statute of limitations.
Mrs. Ricottilli argued that CAMC's conduct amounted to a continuing tort. This Court
rejected the theory noting that “the concept of a continuing tort requires a showing of
repetitious, wrongful conduct.” Ricottilli, 188 W. Va. at 677, 425 S.E.2d at 632 (citation
omitted). The Ricottilli Court further observed that
as this Court explained in Spahr v. Preston County Board of Education, 182 W. Va. 726, 391 S.E.2d 739 (1990), a wrongful act with consequential continuing damages is not a continuing tort. Id. at 729, 391 S.E.2d at 742. The alleged continuing wrong in this case is the untimely and incomplete autopsy report as well as the failure of CAMC to date to report the results of the tissue sample analysis.
With regard to the dilatoriness of the autopsy report, upon its tender to Appellant on January 9, 1990, or thereabouts, the act of delay was fixed and the only aspect of the claim that could be said to continue is damages, but not the wrongful act itself. See id. Similarly, the incompleteness of the autopsy report, insofar as Appellant contends the absence of a specific cause of death renders the report incomplete, as a wrongful act was fixed as of January 9, 1990. With regard to the tissue report, Appellant contends and CAMC does not dispute that she first learned through CAMC's appellate brief, which was filed with this Court on August 26, 1992, that “[b]ecause the liver tissue had been embalmed and no tests could be performed, there are no liver tissue test results to be reported.” Given the facts currently before this Court, the applicable statute of limitations with regard to any delay in the issuance of the tissue report would start to run on August 26, 1992. Were this Court to discover or be apprised that the Appellant did have knowledge at an earlier point in time regarding the deficient tissue samples, we would accordingly adjust the onset date for the applicable limitations period. Because Appellant's claims pertaining to the autopsy and tissue reports are fixed acts and do not involve continuing wrongful conduct, the continuing tort theory is inapposite.
Ricottilli, 188 W. Va. at 677-78, 425 S.E.2d at 632-33 (emphasis added) (footnote omitted).
In the instant case, Copier contends that, unlike CAMC's conduct, the conversion of
multiple, separate negotiable instruments amounts to “repetitious, wrongful conduct.” Id.
at 677, 425 S.E.2d at 632. We disagree, as this Court has made a distinction between
“repetitious, wrongful conduct” that amounts to a continuing tort, id., and “similar, but
separate” acts that do not. DeRocchis v. Matlack, Inc., 194 W. Va. 417, 423, 460 S.E.2d 663,
669 (1995).
DeRocchis involved a chemical truck driver who was repeatedly exposed to
tolulene diisocyanate during the course of his employment from 1972 until March or April
1989. The repeated chemical exposure resulted in Mr. DeRocchis suffering a diminished
pulmonary function. In April 1990, he filed a lawsuit against his employer. One of the
issues in this lawsuit was whether the repeated chemical exposures constituted one
continuing tort. In reaching the conclusion that Mr. DeRocchis' various exposures were
separate injuries as opposed to one continuous tort, the Court observed that “[i]n the present
case, it appears that the appellant, Peter Vincent DeRocchis, sustained a number of discrete
injuries and that, in effect, he was exposed to isocyanate fumes on a number of different
discrete occasions.” DeRocchis, 194 W. Va. 417, 422, 460 S.E.2d 663, 668. The DeRocchis Court explained that it conceives a “continuing cause of action” as being a situation
where events, which for all practical purposes are identical,
occur repeatedly, at short intervals, in a consistent, connected,
rhythmic manner.
In the present case, the facts developed suggest the
traumatic events, Mr. DeRocchis' exposure to isocyanate fumes,
occurred in such a sporadic and nonconsistent way as to
constitute separate causes of action.
194 W. Va. at 423 n.4, 460 S.E.2d at 669 n.4. The Court also held that
[w]hen, in the course of employment, a person receives a number of similar, but separate, injuries, each injury gives rise to a separate and distinct cause of action. Further, the statute of limitations for each cause of action begins to run from the date of the injury giving rise thereto, without regard to any previous injury or injuries.
Syl. pt. 3, DeRocchis. Although the type of injury involved in DeRocchis is not directly on
point with the conversion of negotiable instruments at issue in the instant case, it nevertheless
instructs that “a 'continuing cause of action'” is found in “a situation where events, which
for all practical purposes are identical, occur repeatedly, at short intervals, in a consistent,
connected, rhythmic manner” 194 W. Va. at 423 n.4, 460 S.E.2d at 669 n.4., and that
“similar, but separate” injuries each give rise to a separate and distinct cause of action. Syl.
pt. 3, DeRocchis.
A final case we find useful to our analysis is Auber v. Jellen, 196 W. Va. 168,
469 S.E.2d 104 (1996). Over a period of about one year and nine months, Mr. Auber was
seen by Dr. Jellen on five separate occasions and received five different diagnoses. Mr.
Auber was then referred to a specialist, Dr. Kalla, who diagnosed his condition as rectal
cancer. Mr. Auber subsequently filed a malpractice action against Dr. Jellen. The parties
stipulated that,
Doctor Kalla's opinion, to a reasonable degree of medical certainty, based upon the size of the tumor and type of cancer, was that the tumor and cancer had been present in Mr. Auber for more than two years, thus placing the onset of the cancerous condition prior to Doctor Jellen's first examination of Mr. Auber . . . .
196 W. Va. at 171, 469 S.E.2d at 107. The parties ultimately reached a settlement under which Dr. Jellen's insurer paid the limits of one policy of insurance, and it was agreed that Mr. Auber would file a declaratory judgment action to determine if any additional medical liability insurance coverage was available under other insurance policies sold to Dr. Jellen. Id. In the declaratory judgment action, a question arose with respect to “whether the five examinations and misdiagnoses constituted a 'continuing tort.'” 196 W. Va. at 173, 469 S.E.2d at 109. Relying on the DeRocchis opinion, the Auber Court reasoned,
The rationale of DeRocchis is applicable to the appeal
before us. As was pointed out by the court below, there was not
a continuing course of treatment with respect to each of the five
examinations. Each examination produced a different
misdiagnosis; each examination commenced a new line of
treatment; each examination was an occasion of delay or further
delay in the prompt and appropriate treatment of the rectal
cancer. These discrete examinations, misdiagnoses and
disparate treatments were not, in the words of Handley,
identical, occurring repeatedly, at short intervals, in a consistent,
connected, rhythmic manner. Just as in DeRocchis, where
several discrete exposures each contributed to a worsening
condition, each examination and misdiagnosis of Mr. Auber left
Mr. Auber's tumor undetected, which, with each delay, grew
and worsened. On each occasion, with each physical
examination and misdiagnosis, a new course was set upon, being
each time a discrete negligent act or omission and occasion of
injury to Mr. Auber.
196 W. Va. at 174, 469 S.E.2d at 110.
In light of the foregoing discussion, we find that the conversion of the multiple,
separate negotiable instruments at issue in this case does not amount to a continuing tort.
Conversion of negotiable instruments is unlike the circumstances created in Graham and Handley, where wrongful conduct created a specific continuing injury, which was then
perpetuated by the tortfeasor's failure to take corrective action. Instead, we find that the
conversion of negotiable instruments creates a circumstance more akin to that described in DeRocchis and Auber. As with the multiple exposures and multiple misdiagnoses in those
cases, the act of converting multiple, yet separate, negotiable instruments does not lend itself
to being classified as “events, which for all practical purposes are identical, occur repeatedly,
at short intervals, in a consistent, connected, rhythmic manner.” DeRocchis, 194 W. Va. at
423 n.4, 460 S.E.2d at 669 n.4. Rather, while the multiple conversions were carried out
repeatedly over time, each conversion was a discrete act, a single transaction involving a
specifically individual negotiable instrument. (See footnote 9) Thus, each conversion, though similar, was
a distinctly separate transaction. (See footnote 10) We need not rely solely on the law relating to continuing
torts in answering the certified questions presented in this case; however, as the applicable
statute clearly expresses the Legislature's intent in this regard.
“An” is a euphonic mutation of the article “a.” Webster's Third New International Dictionary 75 (1993). The letter “n” allows an audible distinction to be made between the article “a” and the word it precedes. Id. Consequently, the resolution of this appeal turns on an interpretation of the article “a.” “A” is defined as an article which is “used as a function word before most singular nouns other than proper and mass nouns when the individual in question is undetermined, unidentified, or unspecified. . . .” Id. at 1 (emphasis added).
State v. Kidd, 562 N.W.2d 764, 765 (Iowa 1997) (footnote omitted) (concluding that, “[t]he
statutory language defining the unit of prosecution under section 724.3 is 'an offensive
weapon.' . . . Based on the ordinary meaning of the word 'an,' as ascertained from the
dictionary, we think the statute refers to possession of a single offensive weapon.”). See also State ex rel. Fatzer v. Martin, 175 Kan. 160, 162-63, 258 P.2d 1000,1002 (1953) (“The
legislature in using the word 'an' was following the ordinary grammatical construction as
the use of 'a' could not have been proper inasmuch as it preceded a word commencing with
a vowel, and only the words 'an' or 'any' would have been proper. Moreover, it is apparent
that the legislature intended it to have a singular meaning because it referred to 'said city'
in the singular on two subsequent occasions in the proviso.”). Accordingly, applying the
theory of a continuing tort to causes of action governed by the limitations period set out in
W. Va. Code § 46-3-118(g) would be contrary to the legislative intent plainly expressed
therein.
Insofar as the Legislature has plainly expressed its intention that each act of
conversion be treated as a separate violation for limitations purposes, it rationally follows
that a cause of action for the conversion of a negotiable instrument accrues at the time the
check is negotiated. See Syl. pt. 1, in part, Cart v. Marcum, 188 W. Va. 241, 423 S.E.2d 644
(1992) (“a cause of action accrues (i.e., the statute of limitations begins to run) when a tort
occurs . . . .”). See also Auto-Owners Ins. Co. v. Bank One, 852 N.E.2d 604, 612 (Ind. Ct.
App. 2006) (“When the property converted is a negotiable instrument, the damage is done,
and the tort is complete when the instrument is negotiated . . . .”); New Jersey Lawyers' Fund
for Client Prot. v. Pace, 374 N.J. Super. 57, 67, 863 A.2d 402, 408 (2005) (“[W]e are
satisfied that we should follow the vast majority of courts in this country that have uniformly
held that the cause of action against a bank in a conversion action with respect to negotiable
instruments accrues at the time of conversion . . . .”).
(a) This chapter must be liberally construed and applied
to promote its underlying purposes and policies, which are:
(1) To simplify, clarify and modernize the law governing
commercial transactions;
(2) To permit the continued expansion of commercial
practices through custom, usage and agreement of the parties;
and
(3) To make uniform the law among the various
jurisdictions.
One court, rejecting the application of another equitable tolling rule, the
discovery rule, explained
the commercial policies underlying the Uniform Commercial
Code . . . militate strongly against open-ended liability on
negotiable instruments. As the Third Circuit explained:
[T]he utility of negotiable instruments lies in their
ability to be readily accepted by creditors as
payment for indebtedness. Checks must be
transferable. Consequently, “in structuring the
law of checks, we . . . seek to enhance the
negotiability of commercial paper so that it may
play its role as a money substitute.” Robert
Hillman, et al., Common Law and Equity Under
the Uniform Commerical Code, P 14.01[1]
(1985). Negotiability requires predictable and
rapid collection through payment channels.
Closely related to negotiability are
commercial finality and certainty. “The finality of
transactions promoted by an ascertainable definite
period of liability is essential to the free
negotiability of instruments on which commercial
welfare so heavily depends.” Fuscellaro v.
Industrial Nat'l Corp., 117 R.I. 558, 368 A.2d
1227, 1231 (1977); [statutory citation omitted].
. . . .
The Code drafters sought quick and inexpensive
resolution of commercial disputes. This
overarching goal is particularly important with
negotiable instruments where the exigencies of
commerce require inexpensive, quick, and reliable
transfer of funds. When the only legally
significant temporal events are the time of injury
and the time of filing, the issue whether the
statute of limitations bars an action becomes a
relatively simple determination capable of
resolution on the basis of judicial pleadings.
Menichini [v. Grant], 995 F.2d [1224,] 1230-31 [(3d Cir.
1993)]; see also Haddad's of Illinois, Inc. [v. Credit Union 1
Credit Union], 222 Ill. Dec. 710, 678 N.E.2d [322,] 326
[(1997)] (“The use of negotiable instruments was intended to
facilitate the rapid flow of commerce. This policy is best served
by finding the accrual of a cause of action for conversion of
negotiable instruments occurs when the instrument is
negotiated.”); Husker News Co. [v. Mahaska State Bank], 460
N.W.2d [476, ] 479 [(Iowa 1990)] (“Strict application of the
limitation period, while predictably harsh in some cases, best
serves the twin goals of swift resolution of controversies and
'certainty of liability' advanced by the [Code].”).
Pero's Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 622 -23 (Tenn. 2002). We find this
rationale equally persuasive in the present context; therefore, we conclude that applying a
continuing tort theory to the conversion of negotiable instruments is contrary to the purposes
of and policy behind the UCC.
In a case governed by the three year limitations period
provided for in West Virginia Code 46-3-118(g):
(a) Does the continuing tort theory apply to the alleged
conversion of multiple, separate negotiable instruments made
payable to the plaintiff's business by an employee of plaintiff to
her personal checking account at defendant bank over a period
of several years, such that the cause of action accrues at, and the
statute of limitations does not begin to run until, the date of the
alleged conversion of the last negotiable instrument, permitting
damage claims for instruments allegedly converted more than
three years prior to the filing of the complaint, or
Answer: No.
(b) Does the cause of action accrue and the limitations
period run from the date of the negotiation of each separate
instrument permitting damage claims only for such instruments
allegedly converted within such three year period prior to the
filing of the complaint?
Answer: Yes.