Chapter 17-11 Suspending and Extending the Limitations Period
| Jurisdiction | United States |
17-11 Suspending and Extending the Limitations Period
17-11:1 Fraudulent Concealment
A party may not rely upon a statute of limitations defense to avoid liability where the party has committed fraud to prevent another from seeking redress within the limitations period. Fraudulent concealment is an affirmative defense to the statute of limitations defense.59 A party must plead and prove fraudulent concealment in order to rely on it to avoid the limitations defense either at trial or at summary judgment. The limitations period is tolled until the defrauded party discovers or should have discovered the injury.60
The elements of the fraudulent concealment defense are:
• the existence of the underlying tort;
• the defendant's knowledge of the tort;
• the defendant's use of deception to conceal the tort; and
• the plaintiff's reasonable reliance on the deception.61
The following have been held to constitute legally sufficient evidence of fraudulent concealment:
• When a conversion plaintiff twice asked the defendant company whether it had any relationship with the production of the converted property, and the defendant twice fraudulently denied any such relationship.62
• When there was conflicting evidence as to whether a defendant-doctor informed the plaintiff that he had left a surgical needle inside of the plaintiff's body following surgery.63
• When a wrongdoer who was not named as a defendant in a lawsuit retained the same counsel of the two named defendants, and the counsel filed misleading discovery responses that precluded the plaintiff from ascertaining who the proper defendant was.64
17-11:2 Discovery Rule
As a general rule, a cause of action accrues when a wrongful act causes injury, even if the injured party does not discover the injury. The discovery rule is an exception to this general rule and defers accrual of the cause of action until the injured party discovered or reasonably should have discovered the injury. The party seeking to benefit from the discovery rule has the burden to plead and prove its elements.65
The discovery rule can be distinguished from fraudulent concealment in that the discovery rule addresses situations in which the failure to discover the injury is not due to the fraudulent acts of the defendant. The discovery rule applies when two elements are met—(1) the injury must be inherently undiscoverable and (2) evidence of the injury must be objectively verifiable.66 An injury is inherently undiscoverable when it is difficult for the injured party to learn of the negligent act or omission.67 For example, a person does not learn he has been defamed by a false credit report until he applies for credit.68 A person cannot discover that a vasectomy was improperly performed until a pregnancy occurs or until a test reveals fertility.69 That a foreign object was left in the incision has been held to implicate the discovery rule because the patient would not discover the foreign object or the probl ems it may cause for a long time after surgery.70 In contrast, in 2017 the Texas Supreme Court held that the discovery rule did not defer accrual of a claim for soil contamination because, although soil contamination is objectively verifiable, it is not undiscoverable within the limitations period.71 The court went on to say that application of the discovery rule to nuisance cases in general is rare because "plaintiffs typically learn of unreasonable discomfort or annoyance promptly."72
The discovery rule has been frequently applied to cases of latent onset diseases, such as:
• asbestosis73
• mesothelioma74
• silicosis75
• HIV contracted by a healthcare professional from a patient76
• health problems related to chemical exposure.77
The discovery rule has also been applied to legal malpractice and accounting malpractice cases because the injured party often does not possess the knowledge necessary to discovery the problem.78 Additionally, the Texas Supreme Court has applied a tolling of the limitations until all appeals of the underlying claim are exhausted when an attorney allegedly commits malpractice while providing legal services in the prosecution or defense of a claim which results in litigation.79
17-11:3 Disabilities
If a person is under a legal disability at the time the cause of action accrues, the time the person is under the disability does not count against the limitations period.80 A disability that arises after the limitations period begins to run, however, does not suspend the running of the limitations period.81 A person may not tack one legal disability on to another in order to extend a limitations period.82 A person is under a legal disability if they are younger than the age of 18, even if married, or of unsound mind.83
In medical malpractice cases, the limitations period for a minor who was injured before the age of twelve is tolled only until he or she reaches the age of 14.84 It is likely, however, that the general tolling provision for minors will apply because the Texas Supreme Court found a similar tolling provision unconstitutional as violating the Open Courts provision of the Texas Constitution.85 Indeed, the San Antonio Court of Appeals has already held that this more limited tolling provision for a minor in healthcare liability cases is unconstitutional.86
17-11:4 Death of Claimant
The limitation period is suspended for twelve months upon the death of a claimant.87 If an executor or administrator of a decedent's estate qualifies before the expiration of the one-year suspension, then the statute of limitations begins to run at the time of the qualification.88 This rule applies to survival actions but not to wrongful death actions because it applies only to causes of action existing at the time of death.89 The provision does not apply to healthcare liability claims.90
17-11:5 Military Service
Pursuant to a...
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