The Discovery Rule as Counter-Defense to the Statute of Limitations

THE DISCOVERY RULE TO COUNTER ASSERTION OF LIMITATIONS BY THE OPPONENT

In rare cases where the nature of the injury is inherently undiscoverable and evidence of the injury is objectively verifiable, courts have recognized the discovery rule as an exception to the general accrual rule. See, e.g., Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996).

The discovery rule is a very limited exception to limitations and is construed strictly. See id.; S.V., 933 S.W.2d at 25 (noting that applications of discovery rule “should be few and narrowly drawn"). The rule has been limited to matters that are properly characterized as inherently undiscoverable. Johnson v. Abbey, 737 S.W.2d 68, 69-70 (Tex. App.-Houston [14th Dist.] 1987, no writ).

An injury is inherently undiscoverable if, by its very nature, it is unlikely to be discovered within the prescribed limitations period despite the exercise of due diligence. Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734-35 (Tex. 2001). Whether an injury is inherently undiscoverable is determined on a categorical basis, because such an approach “brings predictability and consistency to the jurisprudence." See Apex Towing Co. v. Tolin, 41 S.W.3d 118, 122 (Tex. 2001). Thus, the focus is on whether a type of injury, rather than a particular injury, was discoverable. Via Net v. TIG Ins. Co., 211 S.W.3d 310, 314 (Tex. 2006).

Where the discovery rule applies, the cause of action accrues when the plaintiff knows, or through the exercise of reasonable care and diligence should have discovered, the nature of his injury and the likelihood that it was caused by the wrongful acts of another. See Childs, 974 S.W.2d at 40. Thus, accrual is not delayed until the plaintiff learns of actual causes and possible cures for his injuries. PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 93 (Tex. 2004). Instead, a plaintiff who invokes the discovery rule still must have sought information about his injuries and their likely cause once apprised of facts that would prompt a reasonably diligent person to make an inquiry that would lead to discovery of the cause of action. Pirtle v. Kahn, 177 S.W.3d 567, 571 (Tex. App.- Houston [1st Dist.] 2005, pet. denied).

 If, as here, the plaintiff pleads the discovery rule as an exception to limitations, the defendant moving for summary judgment must negate it. KPMG, 988 S.W.2d at 748. This may be done by demonstrating that the discovery rule does not apply or by proving, as a matter of law, that there is no genuine issue of material fact as to when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the nature of his injury. Childs, 974 S.W.2d at 44.

SOURCE: Seureau v. Exxon Mobil Corp (Tex.App.- Houston [14th Dist.] Oct. 16, 2008)(Brown) SEE ALSO: fraudulent concealment as a basis for tolling running of limitations