Sunday, November 19, 2006, 9:42 PM

NC SC: Discovery Rule Applies To Deceipt, Broad Personal Injury

With Misenheimer v. Burris, a majority of the NC Supreme Court on Friday overruled a split COA decision, the majority author of which was the then Judge Timmons-Goodson, and said that the 'discovery rule' codified in N.C. Gen. Stat. § 1-52(16) applied to criminal conversation (sleeping with another's spouse). Misenheimer may indicate a broad application of the discovery rule, especially in cases involving deceipt or concealment, and a broad notion of personal injury.

In Misenheimer, plaintiff's wife had an affair that ended around 1995. Plaintiff apparently 'discovered' the affair in July 1997 and filed his criminal conversation action in April 2000. Criminal conversation actions have limitations of 3 years (1-52(5)), and at issue in the case was whether that period started to run only after plaintiff's discovery of the alleged criminal conversation. The NC SC majority (Chief Justice Parker dissenting) answered with a yes.

One of the interesting issues in Misenheimer was what "personal injury" in 1-52(16)'s discovery rule means. 1-52(16) states in full:

Unless otherwise provided by statute, for personal injury or physical damage to claimant's property, the cause of action, except in causes of actions referred to in G.S. 1-15(c), shall not accrue until bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs. Provided that no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action.

The NC SC majority stated that "personal injury has a wide range of meanings" and noted that criminal conversation could be personal injury as "an invasion of an individual's personal rights." The NC SC majority also indicated that criminal conversation could perhaps even be considered personal injury of the bodily harm variety, quoting a, 1890 case stating "the mind is no less a part of the person that the body . . . ."

The NC SC majority also underpinned its application of § 1-52(16) with "notions of fundamental fairness" and the "unacceptable consequence of rewarding a defendant . . . for deceptive and clandestine behavior that successfully prevents discovery . . . ."

Chief Justice Parker dissented, on the bases that criminal conversation actions are subject to a statutory 3 year limitation and that the limitations exception of § 1-52(16) did not apply because § 1-52(16), by its own clear language, applies only to actions for personal injury involving "bodily harm" and to actions for physical damage to property. Chief Justice Parker would hold criminal conversation fits neither bill.

The NC SC majority's rejection of the reasoning in Chief Justice Parker's dissent, focus on the fundamental fairness of applying the discovery rule to "deceptive and clandestine behavior," and broad view of "personal injury" may indicate impending wider application of the discovery rule.


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