Implied Discovery Rule

Katherine L. Tavtigian-Coburn v  All Star Custom Homes, LLC (Or App, October 8, 2014)

Decision: 141008-Tavtigian-All-Star-Custom-Homes

The implied discovery rule tolls the statute of limitation until the plaintiff knows sufficient facts to bring the action. It is expressed in this manner:

The discovery rule is “a rule of interpretation of statutes of limitation that has the effect of tolling the commencement of such [claims] under certain circumstances.” FDIC. v. Smith, 328 Ore. 420, 428, 980 P.2d 141 (1999). Under the discovery rule, the period of limitations is deemed to have commenced from  the earlier of two possible events: “(1) the date of the plaintiff’s actual discovery of injury; or (2) the date when a person exercising reasonable care should have discovered the injury, including learning facts that an inquiry would have disclosed.”¹Greene v. Legacy Emanuel Hospital, 335 Ore. 115, 123, 60 P.3d 535 (2002) (emphasis in original); see also Kaseberg v. Davis Wright Tremaine, LLP, 351 Ore. 270, 278, 265 P.3d 777 (2011) (“The discovery rule applies an objective standard — how a reasonable person of ordinary prudence would have acted in the same or a similar situation.”). This quote is from Rice v. Rabb, 354 Ore. 721, 725-726, 320 P.3d 554, 556-557 (Or.2014)

 The statute of limitations for most Oregon causes of action is controlled by ORS chapter 12. The court focused on the language of ORS 12.010 stating that actions shall be commenced “after the cause of action has accrued.” Accrue in this context means “at the time [a] plaintiff obtained knowledge, or reasonably should have obtained knowledge of the tort committed upon her person by [a] defendant.”²Berry v. Branner, 245 Ore. 307, 316, 421 P.2d 996 (1966) The court in Rice quoted with approval this quote from Berry:

“The word ‘accrue’ is derived from the Latin ‘ad’ and ‘creso’ to grow to. When applied to independent or original demands it means to arise, to happen, to come into force or existence. When used with reference to a cause of action it means when an action may be maintained thereon. It accrues whenever one person may sue another. The cause of action must necessarily accrue to some person or legal entity. To say that a cause of action accrues to a person when she may maintain an action thereon and, at the same time, that it accrues before she has or can reasonably be expected to have knowledge of any wrong inflicted upon her is patently inconsistent and unrealistic.”³Rice v. Rabb, 354 Ore. 721, 727-728, 320 P.3d 554, 558 (Or.2014)

In this case the court limited its holding to replevin and conversion, the door is wide open to apply an implied discovery rule in most causes of action.

Implied Discovery Rule