Synopsis: Missouri has adopted a "middle of the road" approach as to when a statute of limitations period commences. It is neither the date of occurrence nor the date of discovery, but the date that the fact of damage is capable of ascertainment. Unfortunately, "capable of ascertainment" has never been precisely defined and may not allow for an exact definition that would apply to all types of wrongs or damages. This article will discuss recent cases that have addressed this question in an attempt to define when the applicable statute of limitations commences for different causes of action.
I. General Principles
Statutes of limitation are imposed on claims and place limits on the times that a party has to obtain damages. The function of statutes of limitation is to bar plaintiffs from seeking redress for claims that are deemed "stale."1
Public policy favors statutes of limitations,2 and statutes of limitation are applied with some strictness.3 When, however, a statute of limitations defense is raised, the court must give the pleading its broadest intendment, treat all facts as true, construe the allegations favorable to the plaintiff and not dismiss the petition unless it is clearly shown, without exception, that the claim is barred.4 These somewhat conflicting principles have made it difficult to establish a bright-line test for the courts to follow.
Missouri considers statutes of limitations as procedural only, and not as substantive law.5 Procedural questions are determined by the state law where an action is brought.6
II. Capable of Ascertainment Standard
A. Based on the Fact of Damage, Not the Amount.
Under § 516.100 RSMo.,7 a claim is not deemed to accrue when the wrong is done or the technical breach of duty occurs, but when the damage is sustained and capable of ascertainment. The damage is ascertainable when the fact of damage can be discovered or made known, not when a plaintiff actually discovers injury or wrongful conduct.8 Capable of ascertainment has been construed to mean capable of being ascertained by a reasonable person using reasonable diligence. In Missouri, there is a recognized distinction between a discovery rule and Missouri's statutory phrase "capable of ascertainment." Missouri courts construe the latter to mean the moment that plaintiff's damages are substantially complete. Where the damage is a physical ailment, it is sustained and capable of ascertainment, at the latest, when it is diagnosed.9
Missouri has specifically rejected the discovery rule under which the limitation period begins to run when the injury or damage is discovered, and has adopted a middle of the road test to determine when damage has been sustained and is capable of ascertainment.10 This is an objective test decided as a matter of law by the trial judge, but it has not been precisely defined by Missouri courts.11
Knipmeyer v. Spirtas12 reaffirmed that a statute of limitations begins to run once the fact of damage is capable of ascertainment, even though the amount of damage may not yet be ascertainable or calculable.13 A litigation exception, which tolls the statute of limitations when a person is prevented from exercising his or her legal remedy by the pendency of legal proceedings is recognized in Missouri.14
In construing § 516.100, RSMo, Missouri courts have held that damage is capable of ascertainment at the time when plaintiff could have first maintained the action to a successful suit. In other words, the statute of limitations begins to run when plaintiff's right to sue arises. The requirement that damages be sustained and capable of ascertainment does not change the tenet that when an injury is complete as a legal injury, the period of limitations commences at once.15
Analyzing the capable of ascertainment standard, the court in Chicago Title Insurance Co. v. Jackson, Brouillette, et al.,16 stated that:
[A] cause of action accrues for limitation purposes, when a party can first ascertain that he or she has been damaged, even though the precise amount of damages cannot yet be determined. The most that is required is that some damages have been sustained, so that the claimants know that they have a claim for some amount.17
Thus, an argument that the statute of limitations did not commence until the damages stopped accruing or until the total damages could be calculated will not be successful.
B. Continuing Wrong Rule
Missouri recognizes the "continuing or repeated wrong rule."18 "Under this rule, 'each continuation or repetition of wrongful conduct may be regarded as a separate cause of action for which suit must be brought within the period beginning with the occurrence.'"19
The rationale for the continuing wrong rule was discussed in Davis v. Laclede Gas Co.,20 as follows:
[I]f the wrong done is of such a character that it may be said that all of the damages, past and future, are capable of ascertainment in a single action so that the entire damage accrues in the first instance, the statute of limitation begins to run from that time. If, on the other hand, the wrong may be said to continue from day to day, and to create a fresh injury from day to day, and the wrong is capable of being terminated, a right of action exists for the damages suffered within the statutory period immediately preceding suit.21
C. Exceptions for Matters Involving an Expert
In O'Reilly v. Dock,22 the court discussed the application of the statute of limitations and made a distinction between ascertainment of the "wrong" and the "loss." There, the court held,
There are Missouri cases that interpret the statutory "capable of ascertainment" language as applying both to the wrong committed and to the loss suffered. Cases that adopt that view or variations thereof include: Krug v. Sterling Drug, Inc., 416 S.W.2d 143 (Mo.1967); and Thorne v. Johnson, 483 S.W.2d 658 (Mo.App. 1972). As noted in Anderson v. Griffin, Dysart, Taylor, Penner & Lay, P. C., 684 S.W.2d 858 (Mo.App. 1984) and Arst v. Max Barken, Inc., 655 S.W.2d 845 (Mo.App. 1983), Krug and Thorne involve layman/expert situations in which plaintiffs who were not capable of ascertaining their injuries hired experts to ascertain them, and those experts nonetheless failed to ascertain the damages.23
Some cases have created an "expert" rule regarding the ascertainment of damages under § 516.100, RSMo.24 These cases suggest that when a plaintiff has engaged an expert or other professional, such as an attorney, there is no obligation on the part of the plaintiff himself to check the action or inaction of the professional employed, unless facts or circumstances that suggest an error are known by or are available to the plaintiff. These cases, however, involve situations where the plaintiffs were unaware of the possibility that they had a claim and do not apply where the plaintiffs are aware of at least some of the acts that form the basis for their claim -- which triggers the commencement of the statute of limitations.25
The O'Reilly court analyzed another line of cases where an expert is needed to help a lay person ascertain his injuries or damages, which (it found) are unique and different from those situations in which a lay person is capable of making that determination.
In most breach of contract or breach of duty cases, plaintiffs can themselves ascertain their own injuries. . . . When (this) latter factual situation exists, it is clear that under the usual construction of §516.100, notice or discovery of the alleged wrongful act is not an element of the statute's operation. . . . Where . . . the persons who claim they have suffered a loss are capable of ascertaining their injuries or damages without turning to an expert, Missouri courts read the word "ascertain" in §516.100 as "referring to the fact of damage". . . . The statute only requires that "some damages have been sustained, so that the claimants know that they have a claim for some amount." . . . Mere ignorance on the part of a plaintiff does not toll the statute of limitations where reasonable diligence on his or her part would have revealed the injury or wrongful conduct.26
Thus, unless the damage is not discoverable without an expert, a plaintiff is held to a reasonable person standard and the statute of limitations commences when the fact of damage is capable of ascertainment through reasonable diligence. Damage resulting from one wrong that continues and becomes more serious over time does not extend the time within which suit may be brought.27
III. Statute of Limitation is an Affirmative Defense to be Submitted to Jury Unless Clearly Evident
If the statute of limitations is raised as an affirmative defense, the trial court may not dismiss the suit unless it is clearly established that the action is barred.28 A motion to dismiss properly raises the defense of the statute of limitations when it is clear from the face of the petition that the action is barred by the time limitations. . . . 'Conversely, where the petition does not show on its face that it is barred by limitations, a motion to dismiss should not be sustained.'"29
In reviewing a motion to dismiss, the court examines the pleadings and not materials outside the pleadings.30 The statute of limitations is a defense that must be set forth affirmatively as required by Supreme Court Rule 55.08. A party desiring to avail itself of the statute of limitations must plead the particular statute upon which it relies.31 Statute of limitations issues are to be submitted to the jury if contradictory conclusions can be drawn from the evidence.32
IV. Fraud
Somewhat different concepts apply to claims brought for fraudulent acts. Under § 516.120(5), RSMo, a five-year statute of limitations applies to:
An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.
Missouri courts have consistently interpreted the term "discovery" as used in § 516.120(5), RSMo, to mean actual or constructive knowledge. The statute of limitations for fraud is essentially one that gives a plaintiff a maximum of 15 years from the date of the fraudulent act to bring the action, even if the fraudulent act has not been actually discovered. Thus, the statute of limitations for fraud is similar to a statute of repose.
In Gilmore v. Chicago Title Insurance Co.,33 the court reaffirmed several principles regarding the statute of limitations for fraud.
The statute of limitations begins to run at the time a cause of action in fraud accrues which is when plaintiff "discovered or in the exercise of due diligence, should have discovered the fraud." . . . §516.120(5) gives plaintiff ten years from the commission of the fraudulent act to discover the fraud. §516.120(5). Should plaintiff fail to discover the fraud within this ten year period, the five year statute of limitations period begins to run at the expiration of the ten years. . . . Otherwise the limitations period commences at the time plaintiff discovered or should have discovered the fraud. . . . Our courts have placed a duty on plaintiffs to make inquiry to discover the facts surrounding the fraud and plaintiff is deemed to know of the fraud where plaintiff possesses the means of discovery.34
The Gilmore court concluded that "the legislature intended the word 'discovery', as used in § 516.120(5) means actual or constructive knowledge of the fraud." Fraudulent concealment does not toll the statute of limitations for fraud beyond what is provided for in § 516.120(5) and does not require actual discovery of the fraud before the statute begins to run.35
V. Medical Malpractice - § 516.105, RSMo
A. Two-Year Statute of Limitations
Missouri has a two-year statute of limitations for negligence actions against health care providers, unless the alleged malpractice results in a wrongful death, in which case the statute of limitations is three years.
Section 516.105, RSMo, states:
All actions against physicians, hospitals, dentists, registered or licensed practical nurses, optometrists, podiatrists, pharmacists, chiropractors, professional physical therapists, and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of, except that a minor under the full age of ten years shall have until his twelfth birthday to bring action, and except that in cases in which the act of neglect complained of is introducing and negligently permitting any foreign object to remain within the body of a living person, the action shall be brought within two years from the date of the discovery of such alleged negligence, or from the date on which the patient in the exercise of ordinary care should have discovered such alleged negligence, whichever date first occurs, but in no event shall any action for damages for malpractice, error, or mistake be commenced after the expiration of ten years from the date of the act of neglect complained of.
B. Continuing Care
Missouri recognizes the continuing care exception to the two-year statute of limitations for medical malpractice. Under this exception, the statute of limitations does not begin to run against the plaintiff/patient until treatment by the medical defendant ceases.36 This exception only applies, however, when the treatment is continuing and of such a nature as to charge the medical defendant with the duty of continuing care and treatment that is essential to recovery.37 Except where foreign objects are left in the patient after surgery, Missouri has rejected the adoption of a discovery rule for malpractice actions.38
In the recent case of Shah v. Lehman,39 the appellate court upheld summary judgment for the defendant in a medical malpractice action. There, the plaintiff contended that the "foreign object" exception tolled the statute of limitations because the defendant surgeon had intentionally placed a cement restrictor into her leg. She also alleged that subsequent surgeries at the same hospital constituted continuing care. The trial and appellate courts rejected both arguments.
In 1985, the plaintiff had hip surgery, during which a cement restrictor was placed in her femur. The cement restrictor was designed to stop the flow of cement down the femur and was intended to be left in the plaintiff's leg, as a medical implant, and as part of the surgical procedure. After being discharged from that surgery, she had no further contact with the defendant surgeon. Nine years later, in 1994, plaintiff had another surgery on her hip and was told that a cement restrictor was imbedded in her thigh muscle. Her malpractice action was filed in 1995.
Both the trial court and the appellate court rejected plaintiff's contention that the cement restrictor was a "foreign object" within the meaning of § 516.105, RSMo. The appellate court held that, to fall within the "foreign object" exception, the object must have been negligently permitted to remain in the body. "However, if the 'foreign object is intentionally introduced in the body and is intended to remain there', even if the procedure is performed in a negligent manner, the negligence does not fall within the tolling provision."40 Since the cement restrictor was intended to be left as a medical implant, and was not negligently permitted to remain in the plaintiff, the court rejected plaintiff's claim that the action fell within the "foreign object" tolling provisions of § 516.105, RSMo.41 The appellate court also rejected plaintiff's claim that the continuing care exception tolled the statute of limitations. Plaintiff's surgery occurred on January 8, 1985 and she was released from the hospital on February 5, 1985. Plaintiff had no further contact with the hospital until more than nine years later. A nine-year lapse between treatments does not constitute continuing care.42
C. Fraudulent Concealment
The saving feature of § 516.280, RSMo, is triggered by a defendant's improper act that prevents the commencement of an action.43 Fraudulent concealment of facts giving rise to a cause of action for medical negligence may constitute such an improper act.44 A plaintiff who relies upon fraudulent concealment to toll the statute of limitations in a medical negligence case has the burden of proving each of the following six elements:
1. In treating the plaintiff, the [doctor] did or failed to do something that caused the injury;
2. The [doctor's] conduct failed to meet the required standards of professional competence and was therefore negligent;
3. The [doctor] had actual knowledge that he or she caused the injury;
4. With that knowledge, the [doctor] intended by post-injury conduct and statements to conceal from the patient the existence of a claim for malpractice;
5. The [doctor's] acts were fraudulent; and
6. The patient was not guilty of a lack of diligence in sooner ascertaining the truth.
Fraudulent concealment applies only to the defendant's conduct that prevents the commencement of an action. Consequently, when determining if fraudulent concealment tolls the statute of limitations, a pivotal issue is when plaintiff realized there is a cause of action. Fraudulent concealment is inapplicable if plaintiff knows or should know that he or she has a cause of action.45
The conduct that constituted fraudulent concealment must be alleged with particularity. Batek v. Curators of University of Missouri held:
The essence of a fraudulent concealment action is that a defendant, by his or her post-negligence conduct, affirmatively intends to conceal from plaintiff the fact that the plaintiff has a claim against the defendant.46
A plaintiff's petition is insufficient if it fails "to set out with particularity the conduct that constituted fraudulent concealment" but simply alleges that the defendant in some manner fraudulently concealed the negligence "through their representations and silence."47
D. Two-Year Statute of Limitations Applied to all Health Care Providers if Claim is Fundamentally for Malpractice
Actions that are fundamentally for medical malpractice or for damages to a patient while under medical care fall within the two-year period specified under § 516.105, RSMo, regardless of how they are couched. The medical malpractice statute of limitations set forth in § 516.105 specifically covers actions against hospitals.48
Strict product liability claims are not, however, under the two-year statute of limitations.49 In Bell v. Poplar Bluff Physicians Group,50 the court held that a plaintiff could sue a medical provider under a strict product liability theory for implant of a defective medical device and that such an action was not covered by the two-year statute of limitations for malpractice actions. The policy of strict liability in tort does not provide an exception for health care providers. Strict liability requires no fault and can occur absent malpractice.
E. Malpractice Claims by Minors
For purposes of a medical malpractice action, a minor is anyone under 18 years of age.51 Batek v. Curators of the University of Missouri52 discussed §§ 516.105 and 516.170, RSMo, and held that the tolling provision of § 516.170, RSMo, does not apply to malpractice actions brought pursuant to § 516.105; malpractice actions brought by individuals more than 18 years of age are not tolled by the provisions of § 516.170, RSMo. Section 516.170 excludes from its scope all plaintiffs who assert actions against health care providers pursuant to § 516.105 and applies equally to all those whose claims are based upon § 516.105, RSMo.
Similarly, Gleitz v. St. John's Mercy Medical Ctr.53 held that the provision allowing tolling until age 21 in § 516.170 does not apply to actions governed by § 516.105, which "tolls the limitation period for medical malpractice action only for minors under age 18." The statute of limitations is tolled until the age of 18 for those with the disability of minority, who are injured through medical malpractice. Thus, when the plaintiff brings an action more than two years after his or her 18th birthday, the action is barred.
VI. Legal Malpractice
A claim for legal malpractice will be untimely if brought more than five years after a negligently handled lawsuit becomes final on appeal. The case of M & D Enters., Inc. v. Wolff54 contains a comprehensive discussion of the statute of limitations for legal malpractice actions. In that case, a client brought a legal malpractice suit against its former attorneys, alleging negligence in the attorneys' representation in a suit the attorneys defended for the former client. The attorneys had also filed a counterclaim on behalf of the former client. The defendant attorneys began representing the former client during May of 1978, and withdrew from the case during August of 1985. The former client obtained new attorneys to represent it in the litigation and that litigation was concluded in October of 1989. This malpractice action was filed in April, 1993.
The Wolff court held that the malpractice action was barred by the five-year statute of limitations in § 516.120, RSMo. The court rejected the former client's argument that its malpractice claim was not capable of ascertainment until the litigation was finally resolved in 1989. Instead, the court determined that the malpractice claim was capable of ascertainment, at the very latest, in August of 1985 when defendant attorneys withdrew from representing the plaintiffs, and probably earlier when the former client (plaintiff herein) learned that an injunction had been entered against it and expressed its dissatisfaction to the defendant attorney. In upholding the dismissal of the suit, the court commented at length on the statute of limitations issues.55
The Wolff court noted that, in Dixon v. Shafton, the Supreme Court held that a legal malpractice action was barred by § 516.120 where the claimants learned of the malpractice and retained new counsel more than five years prior to the filing of the suit.56 In Dixon, the Supreme Court of Missouri found that damage had been sustained, and the statute of limitations commenced running, when the clients employed new counsel after discovering that their attorney may have committed negligence exposing them to a claim.57
In Wolff, the plaintiffs discharged their attorney (the defendant) during August of 1985 for nonperformance and failure to prosecute the plaintiffs' claims with reasonable diligence. In the suit against their former attorney, plaintiffs alleged that defendant refused to diligently and effectively prosecute the action, and undertook the case when he knew or should have known that it was beyond his resources and staff. The allegations upon which plaintiffs based their right of recovery against defendant were encompassed within the reasons they discharged defendant in August, 1985 and hired replacement counsel. The Wolff court found that these events caused the statute of limitations to begin running, and held:
Plaintiffs' claim against Defendants accrued, at the latest, in 1985, more than five years before the instant suit was filed. Clearly, by that time damages were not only "capable" of ascertainment by Plaintiffs, they were ascertained.58
The Wolff court also rejected the contention of the former client that its legal malpractice claim was based upon a continuing tort with multiple items of damage and that the statute of limitations did not begin to run until the last item of damage was sustained. In so ruling, the court held:
[T]here are a number of cases which have held that, in malpractice claims against attorneys, the statute of limitations commenced to run before resolution of the underlying dispute upon which those claims were based. . . . In none of those cases was the accrual of a cause of action delayed by the fact that a person sustained later damage resulting from the same acts which also produced earlier ascertainable damage.59
Finally, the Wolff court rejected the former client's contention that the defendant attorney should be equitably estopped from raising the statute of limitations defense or that § 516.280, RSMo, prevented the running of the statute.
If any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented. . . . Under this statute, fraudulent concealment of a cause of action may toll a statute of limitations. . . . Additionally, a defendant may be estopped by his conduct from claiming the statute of limitations as a defense where his conduct induced the plaintiff to delay bringing the suit until after the expiration of the statute.
In determining whether there was fraudulent concealment which tolls the statute of limitations, a pivotal issue is when plaintiffs realized they had a cause of action. . . . Fraudulent concealment is inapplicable if a plaintiff knows or should have known he had a cause of action. . . . A court will seldom find that a party is estopped to plead the statute of limitations unless that party made positive efforts to avoid the bringing of suit against him or misled the claimants.60
Since the plaintiffs had knowledge of their cause of action against their former attorney, fraudulent concealment did not apply.
Similarly, in Kueneke v. Jeggle61 the appellate court upheld the dismissal of a malpractice action the plaintiffs had filed against the attorney hired by their insurance company. In 1971, that attorney settled a personal injury action filed against the plaintiff, which was confirmed by a friendly suit judgment. In 1975, the plaintiff filed suit against the other party to the accident, who had obtained the friendly suit judgment against the plaintiff. In this second suit, the plaintiff claimed damages from injuries resulting from the same accident. In 1980, the court dismissed the plaintiff's suit against the other party to the accident on the grounds that the plaintiff's action had not been brought as a compulsory counterclaim in the action originally brought against the plaintiff. In 1981, the plaintiff filed suit against the attorney hired by the insurance company. The trial court found that the action was barred by the statute of limitations and the appellate court affirmed.
The Kueneke court held that the plaintiff's damages were sustained and capable of ascertainment in 1971, at the time the friendly suit judgment was entered against the plaintiff. Since the malpractice action was brought by the plaintiffs more than five years after the date of the friendly suit judgment, it was barred under § 516.120(4), RSMo.62
VII. Repressed Memory
Childhood sexual abuse actions present unique situations and the Missouri legislature created a special statute of limitations for them. Section 537.046, RSMo, which became effective on August 28, 1990, provides:
In any civil action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within five years of the date the plaintiff attains the age of eighteen or within three years of the date the plaintiff discovers or reasonably should have discovered that the injury or illness was caused by child sexual abuse, whichever later occurs.
Doe v. Roman Catholic Diocese63 held that to the extent § 537.046, RSMo, authorizes causes of action that would have been barred under other statutes of limitation, it contravenes the constitutional prohibition against retrospective laws. L.M.S. v. N.M.64 analyzed §§ 537.046, 516.100 and 516.170, RSMo. There, the appellate court reversed the dismissal of a suit that was brought for childhood sexual abuse by a plaintiff who was 29. The court found that since the plaintiff had repressed memory of the abuse until August 1990, when she was 27, her damage may not have been ascertainable until November 1992 and her petition filed in June 1993 might be timely.
In H.R.B. v. J.L.G.,65 the court discussed several statute of limitation issues that applied to childhood sexual abuse cases. An action for sexual abuse may be brought as a battery action, in which case the plaintiff has two years to file the action, § 516.140, RSMo; or the action may be brought pursuant to § 516.120(4), RSMo, which requires that tort actions not specifically enumerated by statute (but recognized at law) be brought within five years.66 If the alleged abuse occurred when the plaintiff was a minor, § 516.170, RSMo, tolls the applicable statute of limitations until the plaintiff turns 21.
Also, § 537.046.2, RSMo, provides for independent civil actions for damages suffered as a result of childhood sexual abuse if the action is brought within five years of the plaintiff's eighteenth birthday or "within three years of the date the plaintiff discovers or reasonably should have discovered that the injury or illness was caused by child sexual abuse," whichever is later. This statute does not, however, revive actions that expired prior to its effective date of August 28, 1990, and, if a plaintiff's suit was already barred by an existing statute of limitations on that date, the defendant has obtained a vested right to be free from suit.67
In H.R.B., the suit alleged defendant's acts first occurred in 1963, when plaintiff was still a minor. If plaintiff's cause of action did accrue at the time these acts occurred, time would start running upon plaintiff's twenty-first birthday in 1971 and would have expired in 1976. In his petition, plaintiff alleged his cause of action did not accrue in 1963 at the time defendant allegedly sexually abused plaintiff, but that the damage to plaintiff caused by defendant's alleged conduct was not capable of ascertainment until October of 1992, due to "certain psychological coping mechanisms" of plaintiff.
In determining when a statute of limitations begins running, "[d]amage is ascertainable when the fact of damage 'can be discovered or made known,' not when a plaintiff actually discovers injury or wrongful conduct. . . . When damage is ascertainable is an objective determination." . . . If the statute of limitations is raised as an affirmative defense, the trial court may not dismiss unless it is clearly established, on the petition's face and without exception, that the action is barred. . . . In reviewing the dismissal of a petition, reviewing courts must allow the pleading its broadest intendment, treating all facts alleged as true and construing the petition's allegations favorably to the plaintiff.
The petition's term "psychological coping mechanisms" may encompass, and the trial court clearly regarded it as including, involuntary repression of memory . . . We must take all the allegations in the petition as true, suspending any skepticism as to the merits of plaintiff's allegations. Plaintiff's damages may not have been ascertainable until October, 1992. If such was the case, the September 30, 1994, petition was timely filed with respect to RSMo §§516.120(4) and 537.046.68
Thus, in H.R.B., a childhood sexual abuse case was not barred even though it was brought more than 30 years after the alleged acts occurred.
Hehner v. Hehner,69 held that the statute of limitations was not tolled when a sexual abuse case was voluntarily dismissed without prejudice and with leave to refile. Although § 516.230, RSMo, allows one year after a non-suit to refile the action, that section applies to actions commenced within the times respectively prescribed in §§ 516.010 to 516.370. Section 537.046 is not within those sections. Thus, there is no tolling or savings provision similar to § 516.230, RSMo, that applies to § 536.046, and childhood sexual abuse cases do not receive the benefit of the one-year savings statute if they are dismissed.
VIII. Savings Statute - § 516.230, RSMo
Richardson v. Richardson70 held that the savings statute (§ 516.230, RSMo) requires: (1) An action shall have been commenced within the period of limitations, (2) the plaintiffs suffer a non-suit, and (3) a new action be commenced within a year of the non-suit. A civil action is commenced by filing a petition with the court. There is no longer any requirement that the suit be filed in a proper court and filing in a court of improper venue does not deprive the court of jurisdiction over the defendant.
The savings statute does not shorten a statute of limitations; it only extends it by one year. In other words, the plaintiff may refile the case within the original statute of limitations period or the one year allowed by the saving statute, whichever is longer.71
Missouri's savings statute, § 516.230, RSMo, applies only when the first action was filed in Missouri and is not applicable where the first action is filed in another state.72 A plaintiff may receive the benefit of the saving statute only once. The action giving rise to the benefit of the savings statute, however, may be the first action or a subsequent one, so long as it was filed within the original period of limitations.73
IX. Application of State Time Limitations to Federal Causes of Action
The United States Supreme Court has held that "[w]hen Congress has not established a time limitation for a federal cause of action, the settled practice is to adopt a local time limitation as federal law if not inconsistent with federal law or policy to do so.74 In determining the most appropriate state statute of limitations to apply, the court must "characterize the essence of the claim" -- such characterization ultimately being a question of federal law.75
In other words, the federal court must "determine what state cause of action is most closely analogous to the federal claim."76 "[S]tate policy becomes relevant only after [the federal] court has selected [the] most closely analogous state cause of action and, at that point, [the federal] court defers to the state's judgment about how to balance [the] need to enforce [the] statute with [the] need to weed out stale claims, by borrowing [the] statute of limitations for the most closely analogous state cause of action, unless that [state] statute would frustrate [the] purposes of [the] federal statute on which the claim is based."77 "The ultimate goal is to apply the same limitations period to a federal action as would be applied if a similar action were brought in state court."78
X. Summary
Although statutes of limitations are favored under the law and are applied with strictness, a court will not dismiss a case unless it is clear that the case was untimely filed. The statute of limitations on a claim commences when the fact of damage (not the amount) is capable of ascertainment. Although this has been characterized as an objective test, it has not been precisely defined and is decided on a case-by-case basis.
Footnotes
1 Korte Constr. Co. v. Deaconess Manor Ass'n, 927 S.W.2d 395 (Mo.App. E.D. 1996). See also Baron v. Kurn, 164 S.W.2d 310, 317 (Mo. 1942) (statutes of limitation are used to bar otherwise legitimate actions on policy grounds), and Hughes v. Neely, 332 S.W.2d 1, 6 (Mo. 1960). As a general rule, the doctrine of laches will not bar a suit before expiration of the period set forth in the applicable statute of limitations in the absence of special facts demanding extraordinary relief. The doctrine of laches is the equitable counterpart of the statute of limitations defense. Its purpose is to avoid unfairness that can result from the prosecution of stale claims. Mere delay does not constitute laches. See Higgins v. McElwee, 680 S.W.2d 335, 341 (Mo. App. E.D. 1984), State ex rel. General Elec. Co. v. Gaertner, 666 S.W.2d 764, 767 (Mo. banc 1984), and Empiregas, Inc. of Palmyra v. Zinn, 833 S.W.2d 449 (Mo. App. E. D. 1992).
2 Tyson v. Dixon, 859 S.W.2d 758, 763 (Mo. App. W.D. 1993). See also Hunter v. Hunter, 237 S.W.2d 100, 104 (Mo. 1951) ("Statutes of limitations are favored in the law, and cannot be avoided unless the party seeking to do so brings himself strictly within some exception. Such exceptions are strictly construed and are not enlarged by the courts upon considerations of apparent hardship").
3 Dixon v. Shafton, 649 S.W.2d 435, 440 (Mo. banc 1983). See also Jordan v. Willens, 937 S.W.2d 291 (Mo. App. W.D. 1996) ("Statutes of limitations are absolute bars to actions."), and Fischer v. Browne, 586 S.W.2d 733, 736 (Mo. App. W.D. 1979). See also Peterson v. Fink, 515 F.2d 815, 817 (8th Cir. 1975) (a strict construction is given by Missouri courts to statutes of limitations).
4 Sheehan v. Sheehan, 901 S.W.2d 57, 58-59 (Mo. banc 1995).
5 State ex rel. Research Med. Center v. Peters, 631 S.W.2d 938, 946 (Mo. App. W.D. 1982). See also Rincon v. Rincon, 571 S.W.2d 475, 476 (Mo. App. E.D. 1978). A trial court's dismissal of an action on the basis of the statute of limitations is a final adjudication on the merits. See Jordan v. Kansas City, Mo., 929 S.W.2d 882, 886 (Mo. App. W.D. 1996), and Andes v. Paden, Welch, Martin & Albano, 897 S.W.2d 19, 21 (Mo. App. W.D. 1995).
6 Greene v. Morse, 375 S.W.2d 411, 414 (Mo. App. S.D. 1964), and Evergreen Nat'l Corp. v. Killian Constr. Co., 876 S.W.2d 633, 635 (Mo. App. W.D. 1994). See also Nettles v. American Tel. and Tel. Co., 55 F.3d 1358 (8th Cir. 1995) (under § 516.190, when a cause of action originates in a state other than Missouri and that state's statute of limitations bars the action as untimely, the borrowing statute operates to adopt the foreign state's statute, thereby barring the action in Missouri as well. The statute prevents a plaintiff from forum shopping and from gaining more time to bring an action merely by suing in a forum other than where the cause of action accrued), citing Renfroe v. Eli Lilly & Co., 686 F.2d 642, 646 (8th Cir. 1982), and Patch v. Playboy Enters., Inc., 652 F.2d 754, 756 (8th Cir. 1981).
7 Section 516.100, RSMo 1996. Period of limitation prescribed:
Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; provided, that for the purposes of sections 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained.
8 H.R.B. v. J.L.G., 913 S.W.2d 92 (Mo. App. E.D. 1995). See also Ahearn v. Lafayette Pharmacal, Inc., 729 S.W.2d 501 (Mo. App. E.D. 1987) ("The test to determine when a cause of action has accrued is to ascertain the time when the plaintiff could have first maintained the action to a successful result. Plaintiff's ignorance of his cause of action will not prevent the running of the statute").
9 Lockett v. Owens-Corning Fiberglas, 808 S.W.2d 902 (Mo. App. E.D. 1991).
10 See Jepson v. Stubbs, 555 S.W.2d 307 (Mo. banc 1977), and Carr v. Anding, 793 S.W.2d 148 (Mo. App. E.D. 1990). Generally, the time begins to run under a statute of limitations only after the right to prosecute a claim to a successful conclusion has accrued. Stafford v. Muster, 582 S.W. 2d 670, 680 (Mo. banc 1979).
11 Anderson v. Griffin, 684 S.W.2d 858 (Mo. App. W.D. 1984), and M & D Enterprises, Inc. v. Wolff, 923 S.W.2d 389, 395 (Mo. App. S.D. 1996).
12 750 S.W.2d 489 (Mo. App. E.D. 1988).
13 See Zero Mfg. Co. v. Husch, 743 S.W.2d 439 (Mo. App. E.D. 1987). See also Earls v. King, 785 S.W.2d 741, 744 (Mo. App. S.D. 1990) (capable of ascertainment means the fact of damage rather than the precise amount).
14 See Neal v. Laclede Gas Co., 517 S.W.2d 716, 719 (Mo. App. E.D. 1974), and Follmer's Market v. Comprehensive Accounting Serv. Co., 608 S.W.2d 457, 460 (Mo. App. E.D. 1980).
15 Janssen v. Guaranty Land Title Co., 571 S.W.2d 702 (Mo. App. E.D. 1978). See also Nettles v. American Tel. and Tel. Co., 55 F.3d 1358 (8th Cir. 1995).
16 930 S.W.2d 22 (Mo. App. W.D. 1996).
17 Id. at 24.
18 Vogel v. A. G. Edwards & Sons, Inc., 801 S.W.2d 746, 755 (Mo. App. E.D. 1990), citing Davis v. Laclede Gas Co., 603 S.W.2d 554, 556 (Mo. banc 1980).
19 Vogel, 801 S.W.2d at 755, citing Note, Developments in the Law, Statutes of Limitations, 63 Harv. L. Rev. 117, 1205 (1950).
20 603 S.W.2d 554 (Mo. banc 1980).
21 Id. at 556. See also Lake St. Louis Community Association v. Oak Bluff Preserve, ___ S.W.2d ___ (Mo. App. E.D. 1997).
22 929 S.W.2d 297 (Mo. App. S.D. 1996).
23 Id. at 300, 301. Anderson at 862; Arst at 847. The reasoning for the expanded interpretation of the "capable of ascertainment" language in such cases is explained by our Supreme Court in Krug:
[T]he rationale of the cases involving delayed [manifestation of] . . . injuries caused by wrongful conduct which was unknown to plaintiff at the time of the invasion of his rights is "that a person must have some notice of his cause of action, an awareness either that he has suffered an injury or that another person has committed a legal wrong which ultimately may result in harm to him, before the statute can begin to run." (citation omitted). 416 S.W.2d at 150.
24 See, e.g., Martin v. Crowley, Wade & Milstead, Inc., 702 S.W.2d 57, 58 (Mo. banc 1985), and Thorne v. Johnson, 483 S.W.2d 658, 663 (Mo. App. W.D. 1972).
25 M & D Enters., Inc. v. Wolff, 923 S.W.2d 389, 397 (Mo. App. S.D. 1996). See also St. Louis Assocs. v. Gannon Management, 948 S.W.2d 225, 228 (Mo. App. E.D. 1997) ("a plaintiff [does] not have an 'automatic, affirmative duty to double check the services provided by a professional expert'" where plaintiff has no knowledge of the facts giving rise to the claim, citing Martin v. Crowley, Wade & Milstead, Inc., 702 S.W.2d at 58).
26 929 S.W.2d at 301, citing Dixon v. Shafton, 649 S.W.2d 435, 438 (Mo. banc 1983); Chemical Workers Basic Union, Local No. 1744 v. Arnold Sav. Bank, 411 S.W.2d 159, 165 (Mo. banc 1966), and Jepson v. Stubbs, 555 S.W.2d 307, 312 (Mo. banc 1977).
27 Business Men's Assurance Co. v. Graham, 891 S.W.2d 438 (Mo. App. W.D. 1994). See also Nettles v. American Tel. and Tel. Co., 55 F.3d 1358 (8th Cir. 1995) (Missouri courts have declined to construe "item of damage" in § 516.100 to mean that damages from a single wrong, which becomes more serious over time constitute separate items of damage. Moreover, aggravating circumstances that enhance a legal injury already inflicted and the mere development of such an injury do not delay the accural of a cuase of ation).
28 See H.R.B. v. J.L.G., supra.
29 Heintz v. Swimmer, 922 S.W.2d 772 (Mo. App. E.D. 1996). See also Miller v. Larson, 712 S.W.2d 56, 58 (Mo. App. W.D. 1986).
30 Stumpf v. Hoerle, 922 S.W.2d 833 (Mo. App. E.D. 1996). See also Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995).
31 State ex rel. B.A.W. v. Zupan, 901 S.W.2d 250 (Mo. App. W.D. 1995). See also Heintz v. Swimmer, supra, Reed v. Rope, 817 S.W.2d 503 (Mo. App. W.D. 1991), and Livingston v. Webster County Bank, 868 S.W.2d 154, 156 (Mo. App. S.D. 1994).
32 Business Men's Assurance Co. v. Graham, supra. See also Kansas City v. W. R. Grace & Co., 778 S.W.2d 264 (Mo. App. W.D. 1989).
33 926 S.W.2d 695 (Mo. App. E.D. 1996). See also Burr v. National Life & Accident Ins. Co., 667 S.W.2d 5 (Mo. App. W.D. 1984).
34 926 S.W.2d at 698, citing Burr v. National Life & Accident Ins. Co., 667 S.W.2d 5, 7 (Mo. App. W.D. 1984).
35 See Judy v. Arkansas Log Homes, 923 S.W.2d 409 (Mo. App. W.D. 1996). See also Magee v. Blue Ridge Prof'l Bldg. Co., 821 S.W.2d 839, 844 (Mo. banc 1991) (the court defined the word "conceals" as used in § 516.097, RSMo, as "an affirmative act, something actually done directly intended to prevent discovery or to thwart investigation").
36 See Adams v. Lowe, 949 S.W.2d 109, 111 (Mo. App. E.D. 1997) ("[t]he treatment and history of care should be considered as a whole"); see also Thatcher v. De Tar, 173 S.W.2d 760 (Mo. 1943), and Shaw v. Clough, 597 S.W.2d 212, 216 (Mo. App. W.D. 1980). For an excellent discussion of medical malpractice limitations see Gregory T. Mueller, Missouri's Malpractice Statute of Limitations, 53 J. Mo. Bar 360 (1997).
37 Green v. Washington Univ. Med. Ctr., 761 S.W.2d 688 (Mo. App. E.D. 1988); Miller v. Duhart, 637 S.W.2d 183, 190 (Mo. App. E.D. 1982); Tayborn v. Burstein, 748 S.W.2d 824 (Mo. App. E.D. 1988). See also Ventimiglia v. Cutter Laboratories, 708 S.W.2d 772, 774 (Mo. App. E.D. 1986), Kamerick v. Dorman, 907 S.W.2d 264 (Mo. App. W.D. 1995), and RCA Mut. Ins. Co. v. Sanborn, 918 S.W.2d 893 (Mo. App. S.D. 1996).
38 See Young v. Medrano, 713 S.W.2d 553 (Mo. App. E.D. 1986).
39 ___ S.W.2d ___, (Mo. App. E.D. 1997).
40 Id. citing Hershley v. Brown, 655 S.W.2d 671 (Mo. App. W.D. 1983).
41 Id. citing Rockefeller v. Moront, 618 N.E.2d 119 (N.Y. 1993) (items that are placed in a patient with the intention that they will remain to serve some continuing purpose are not foreign objects. A claim that such a device is in the wrong place does not transform it into a foreign object. "Only in circumstances where a foreign object is negligently 'left' in the patient's body . . . without any intended continuing treatment purpose [would the] discovery rule be available" to toll the statute of limitations.
42 Id.
43 Section 516.280 RSMo 1996. "Limitation not to be extended by improper acts of defendant.
If any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented. (R.S. 1939, §1031)."
44 See Smile v. Lawson, 435 S.W.2d 325, 327 (Mo. banc 1968).
45 See Ahearn v. Lafayette Pharmacal, Inc., 729 S.W.2d 501 (Mo. App. E.D. 1987), and Claire v. Reproductive Health Servs., 720 S.W.2d 793, 795 (Mo. App. E.D. 1986).
46 920 S.W.2d 895, 900 (Mo. banc 1996).
47 Id. at 900.
48 Arbuthnot v. DePaul Health Ctr., 891 S.W.2d 564 (Mo. App. E.D. 1995).
49 See Brandon v. Southeast Mo. Hosp., Inc., 926 S.W.2d 113 (Mo. App. E.D. 1996), Pinkerton v. Southeast Mo. Hosp., 926 S.W.2d 137 (Mo. App. E.D. 1996), and Mulligan v. Truman Medical Ctr., 950 S.W. 576, (Mo. App. W.D. 1997).
50 879 S.W.2d 618 (Mo. App. S.D. 1994).
51 Miguel v. Lehman, 902 S.W.2d 327 (Mo. App. E.D. 1995).
52 920 S.W.2d 895 (Mo. banc 1996); see also Wheeler v. Briggs, 941 S.W.2d 512 (Mo. banc 1997) (mentally incapacitated persons not entitled to tolling benefit of § 516.170, RSMo, when applied to § 516.105, RSMo. The exemption of medical malpractice actions from the tolling provisions of § 516.170 is not an equal protection violation and does not violate the special law prohibition of the Missouri Constitution; it does not procedurally bar access to the mentally incapacitated).
53 927 S.W.2d 506 (Mo. App. E.D. 1996). See also Braswell v. Chehval, 935 S.W.2d 53 (Mo. App. E.D. 1996) (court held that § 516.105, RSMo, tolls the limitation period for medical malpractice actions only for minors under age 18. Thus, when a minor reaches the age of 18, the tolling period in § 516.105 ends and its statute of limitations begins to run. If suit is not filed within two years after that, it is barred), and Smith v. Tang, 926 S.W.2d 716 (Mo. App. E.D. 1996).
54 923 S.W.2d 389 (Mo. App. S.D. 1996).
55 Id. at 394. (Damage is sustained and capable of ascertainment for purposes of the statute of limitations when it can be discovered or made known, even though the amount of damage is unascertained. Modern Tractor & Supply Co. v. Leo Journagan Constr. Co., Inc., 863 S.W.2d 949, 952 (Mo. App. S.D. 1993). When the fact of damage becomes capable of ascertainment, the statute of limitations is put in motion. Brower v. Davidson, Deckert, Schutter & Glassman, P.C., 686 S.W.2d 1, 4 (Mo. App. W.D. 1984). The test is when the plaintiff could have first successfully maintained the action. Modern Tractor & Supply Co. v. Leo Journagan Constr. Co., 863 S.W.2d at 952; Anderson v. Griffin, Dysart, Taylor, Penner & Lay, P.C., 684 S.W.2d 858, 860-61 (Mo. App. W.D. 1984). This is a question of law).
56 Id., citing Dixon v. Shafton, 649 S.W.2d 435, 438 (Mo. banc 1983).
57 Id. at 396. (Likewise, in Bormaster v. Baldridge, 723 S.W.2d 533, 540 (Mo. App. S.D. 1987), employment of counsel as a result of the alleged errors of the original attorney was found to constitute damage sufficient for the accrual of a cause of action against the attorney pursuant to § 516.100). See also Jordan v. Willens, 937 S.W.2d 291, 294-95 (Mo. App. W.D. 1996), which held that, "Missouri has long recognized that a claim for malpractice for failure to file an appeal arises as soon as the client learns that the time for appeal has elapsed," citing Fischer v. Browne, 586 S.W.2d 733, 737 (Mo. App. W.D. 1979).
58 Id. at 397, citing Brower v. Davidson, Dechert, Schutter & Glassman, P.C., 686 S.W.2d at 3.
59 Id. at 398, citing Dixon v. Shafton, 649 S.W.2d at 438; Zero Mfg. Co. v. Husch, 743 S.W.2d at 441; Bormaster v. Baldridge, 723 S.W.2d at 540; Brower v. Davidson, Deckert, Schutter & Glassman, P.C., 686 S.W.2d at 4.
60 Id. at 397, citing Dixon v. Shafton, 649 S.W.2d at 439, Smile v. Lawson, 435 S.W.2d 325, 327 (Mo. banc 1968), Sugent v. Arnold's Estate, 340 Mo. 603, 101 S.W.2d 715, 718 (1937); Tayborn v. Burstein, 748 S.W.2d 824, 826 (Mo. App. E.D. 1988); Miller v. Guze, 820 S.W.2d 576, 578 (Mo. App. E.D. 1991).
61 658 S.W.2d 516 (Mo. App. E.D. 1983).
62 658 S.W.2d at 517-18, citing Fischer v. Browne, 586 S.W.2d 733, 737 (Mo. App. W.D. 1979), Gruenewaelder v. Wintermann, 360 S.W.2d 678, 690 (Mo. 1962), Jepson v. Stubbs, 555 S.W.2d 307, 312 (Mo. banc 1977). See also Murray v. Fleischaker, 949 S.W.2d 203 (Mo. App. S.D. 1997) (where the plaintiff sued his former attorney for malpractice more than five years after the date that a judgment was entered against the plaintiff in the underlying case being handled by the defendant attorney, the court held that the plaintiff's malpractice suit was barred by the statute of limitations. The plaintiff's damage, if any, was capable of ascertainment no later than the date of the judgment; this was also the date upon which the plaintiff could have first successfully maintained the action).
63 862 S.W.2d 338 (Mo. banc 1993).
Section 516.170, RSMo 1996, states as follows:
May delay filing of action, when. Except as provided in section 516.105, if any person entitled to bring an action in sections 516.100 to 516.370 specified, at the time the cause of action accrued be either within the age of twenty-one years, or mentally incapacitated, such person shall be at liberty to bring such actions within the respective times in sections 516.100 to 516.370 limited after such disability is removed.
64 911 S.W.2d 703 (Mo. App. E.D. 1995).
65 913 S.W.2d 92 (Mo. App. E.D. 1995).
66 See Doe v. Roman Catholic Diocese, 862 S.W.2d at 339.
67 Doe v. Roman Catholic Diocese, 862 S.W.2d at 342.
68 H.R.B. v. J.L.G. at 95-6 (citing Sheehan v. Sheehan, 901 S.W.2d 57, 58-59 (Mo. banc 1995); see also K. G. v. R.T.R., 918 S.W.2d 795 (Mo. banc 1996). For further discussion of these issues, see Sharon Lowenstein, Missouri Limitation Period For Child Sexual Abuse, 53 J. Mo. Bar 288 (1997).
69 918 S.W.2d 283 (Mo. App. E.D. 1996).
70 892 S.W.2d 753 (Mo. App. E.D. 1994).
71 St. Louis University v. Belleville, 752 S.W.2d 481 (Mo. App. E.D. 1988); Dane v. Cozean, 584 S.W.2d 120 (Mo. App. E.D. 1979).
72 Muzingo v. Vaught, 887 S.W.2d 693 (Mo. App. S.D. 1994). See also McDonald v. Ward, 919 S.W.2d 251 (Mo. App. S.D. 1996).
73 Britton v. Hamilton, 740 S.W.2d 704 (Mo. App. E.D. 1987). See also Heintz v. Swimmer, 922 S.W.2d 772 (Mo. App. E.D. 1996), and Thornton v. Deaconess Medical Center - West, 929 S.W.2d 872 (Mo. App. E.D. 1996).
74 Wilson v. Garcia, 471 U.S. 261 (1985).
75 Id. at 268-70.
76 Aaron v. Brown Group, Inc., 80 F.3d 1220, 1223 (8th Cir. 1996), citing Johnson v. State Mut. Life Assurance Co., 942 F.2d 1260, 1262 (8th Cir. 1991). See also Egerdahl v. Hibbing Community College, 72 F.3d 615, 617 (8th Cir. 1995).
77 Id. citing North Star Steel Co. v. Thomas, 115 S.Ct. 1927 (1995).
78 Hildebrand v. Firemen's Retirement System of St. Louis, 527 F.2d 567, 569 (8th Cir. 1975).
1998, W. Dudley McCarter
Mr. McCarter is a principal in the St. Louis firm of Behr, Mantovani, McCarter and Potter, P.C. He received his J.D. in 1975 from the University of Missouri-columbia. He served as president of The Missouri Bar in 1993-94.