655 S.E.2d 119
JUSTICE STARCHER dissents and reserves the right to file a dissenting opinion.
5. “Where a plaintiff sustains a noticeable injury to property from a traumatic
event, the statute of limitations begins to run and is not tolled because there may also be
latent damages arising from the same traumatic event.” Syl. Pt. 2, Hall's Park Motel, Inc.
v. Rover Construction, Inc., 194 W.Va. 309, 460 S.E.2d 444 (1995).
6. “[U]nder 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, in part,
Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992).
7. “In 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.” Syl. Pt. 4, Gaither v. City Hosp. Inc., 199
W.Va. 706, 487 S.E.2d 901 (1997).
8. “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 v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992).
Albright, Justice:
This is an appeal by the plaintiff below, Mark Roberts, (hereinafter referred
to as “Appellant”) from the June 10, 2005, and June 29, 2006, orders of the Kanawha
County Circuit Court granting summary judgment in favor of the defendants below, West
Virginia American Water Company, E.L. Robinson Engineering Co. and Famco
Contracting, Inc. (hereinafter referred to collectively as “Appellees”),
(See footnote 1)
on statute of
limitations grounds in a property damage suit. On appeal to this Court, Appellant maintains
that the lower court incorrectly found that his suit was not timely filed because both the
continuous tort doctrine and the discovery rule tolled the running of the statute in this case.
Upon completion of review of the arguments of the parties, the record presented for
appellate consideration, and the pertinent authorities, we affirm the ruling of the circuit
court.
Appellant testified during a deposition that within three weeks of the
completion of the waterline project he noticed that a slip had developed along his road.
Appellant said he also noticed slips in March and October 2000. The first major slip on
Appellant's property happened on April 15, 2002, at which time travel on his gravel
roadway became hazardous for trucks and larger vehicles. According to a phone log
maintained by Appellant, Appellant called WVAW, Famco and ELRE on April 15 and April
18, 2002. During these conversations, Appellant advised the company representatives of
the slippage and requested that his property be inspected and repaired. Two weeks thereafter
another major slip occurred on Appellant's property.
In June 2002, WVAW hired Triad Engineering, Inc. (hereinafter referred to
as “Triad”) to inspect Appellants' property and offer an opinion as to the cause of the
slippages. Triad issued a report of its investigation on July 2, 2002, a copy of which was
mailed to Appellant on August 5, 2002. The Triad report contained the following
conclusion:
It is difficult to make a positive assessment of the cause
of the landslide since a significant amount of time has past [sic]
since it first occurred. Based on our experience and knowledge,
any excavation work performed at the toe of such a steep slope
can initiate instability. Once instability has been initiated and
a shear plane has formed within the soil, soil slippage typically
continues to progress unless corrective action is taken. Based
on our visual observations and information provided by Mr.
Roberts, it is possible that the excavation work performed to
install the water line caused the landslide.
Famco later obtained an inspection and report from CTL Engineering of West Virginia
(hereinafter referred to as “CTL”). The CTL report dated September 2, 2003, reflects that:
[t]he slope failure appears to be related to some
movements at the toe of the slope as in most slide occurrences.
The slopes in the subject area are steep in nature and no obvious
causes related to the pipeline installation were visible due to the
heavy vegetation on the slope and the elapsed time since the
slope failure.
It was further noted in the CTL report that “[a]ccording to the West Virginia Landslide
Study Pocatalico Quad Map (1976) the area was found to be in a naturally occurring slide-
prone area of Kanawha County.” Following review of these reports, Appellant maintains
that he requested that Appellees either repair the property or compensate him for damages
and they refused.
According to Appellant, at the same time the reports were being prepared the
erosion of his property continued to progress as manifested by a ten foot section of his
driveway breaking off and sliding down the hill on March 12, 2003. By June 2003, the slip
had expanded an additional twenty feet. The slips again expanded in January and March
2004, the last of which resulted in debris falling to the bottom of the hill near the public
highway.
Appellant filed suit on July 22, 2004, for property damages resulting from
Appellees' negligent, defective and improper installation of water lines on his land. His
complaint contained the allegations that although the waterline construction project
specifications, maps and expert reports showed the area to be prone to slips, Appellees took
no special precautions to prevent such problems. Following discovery, Appellees filed
separate motions for summary judgment, contending inter alia that the suit was filed beyond
the applicable two-year statute of limitations set forth in West Virginia Code § 55-2-12
(1959) (Repl. Vol. 2000).
(See footnote 4)
Appellant responded by arguing that because the damage to his
property was ongoing, separate and continuous, the statute of limitations did not begin to run
until the last damage occurred in March 2004. He additionally argued that even if the
statute of limitations was not tolled under the continuing tort doctrine, it was tolled by the
discovery rule. In support of this assertion, Appellant claimed that he did not discover the
full extent of his claim against the named defendants until he received the report from Triad
in August 2002, and his suit was filed within two years of receiving the Triad report.
Finding no genuine issue of material fact, the lower court granted WVAW's
motion for summary judgment on June 10, 2005,
(See footnote 5)
and the motions for summary judgment
of ELRE and Famco on June 29, 2006. The orders reflect the lower court's finding that
under either theory advanced by Appellant, the two-year statute of limitations had expired
by the time he filed suit. The orders specifically reflect the lower court concluding in all
cases that the discovery rule did not apply because Appellant admittedly knew within three
weeks of completion of the waterline project that his land had been damaged by the
installation, knew the identity of Appellees and was aware of his claims against them no
later than April 2002 when he contacted each of them. Moreover, the lower court found that
the continuing tort doctrine did not apply under the facts of the case. The lower court
essentially found no continuing tort was alleged as the only activity Appellant claimed as
continuing was the progressive erosion of the land stemming from the work Appellees
performed in or around1999.
Appellant subsequently petitioned for appeal of both summary judgment
orders, which this Court granted on February 28, 2007.
B. Discovery Rule
Appellant also argues that the discovery rule should apply to the facts of this
case to toll the statute of limitations. “[U]nder 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, in part, Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992). With regard to tort
actions, we further held in syllabus point four of Gaither v. City Hospital Inc., 199 W.Va.
706, 487 S.E.2d 901 (1997), that
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.
Appellant maintains that he did not fully know he had a claim until he received
the Triad report in August of 2002, rather than in 1999 as Appellees assert. Appellant
argues that because there is a difference of opinion regarding when he learned of the injury
and who was responsible for that injury, the lower court erred by granting summary
judgment for Appellees and not submitting this material issue to a jury. We disagree. In
light of the evidence, there was no genuine issue of material fact to submit to a jury.
The record does not support Appellant's contention that there was a genuine
question as to when he realized that his property was harmed due to the waterline installation
project. Appellant's admissions in his complaint and deposition testimony clearly indicate
that he knew within three weeks of completion of the construction project in 1999 that the
stability of the hillside on his property had been compromised by the waterline installation.
Additionally, there is evidence in the record that Appellant was aware of the identities of the
various entities who bore some responsibility for the work that was done. According to
Appellant's own phone log of communications regarding the developing problems on his
land, Appellant contacted each Appellee in April of 2002. Although the Triad report
provided additional information for Appellant to pursue his claim, it did not inform
Appellant for the first time that his property had been disturbed by the waterline project, or
that damage in the form of slips was occurring as a result of the disturbance, or who might
bear responsibility for correcting the resulting problems. Furthermore, Appellant did not
assert or prove that Appellees did anything to prevent him from learning of his claim. As
we held in syllabus point three of Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992),
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.
The record clearly supports the lower court's finding that nothing in the facts supported
application of the discovery rule in this case. As Appellant's complaint was filed in July
2004, his claim was raised beyond the statute of limitations period, whether that period
began to run in 1999 when the project was completed and Appellant observed slippages on
his property, or in 2002 when Appellant learned of the various entities who performed work
on the project.
Having found no error in the lower court's application of the law with regard
to the continuing tort doctrine or the discovery rule, we affirm the entry of summary
judgments.