Statute of Limitations; discovery occurs and statute accrues when plaintiff "suspects" a claim; economic loss is not always a six-year limit.

 Eaton v. Prior, 2012 VT 54 (Skoglund, J.)

Plaintiff's lawsuit against her former employer and supervisor for sexual assault was dismissed for failure to prosecute. She claims that her ability to prosecute the case was thwarted by a licensed polygraph examiner who determined that she did not tell the truth in responding to questions about the alleged assault. This action claims negligent administration of the polygraph examination,  improper disclosure of the examination results and conspiracy to cover up the misconduct. The trial court entered judgment for defendants on the ground that the suit was barred by the three-year statute of limitations applicable to actions for "injuries to the person," under 12 V.S.A. § 512(4). We conclude that the trial court correctly applied the three-year statute of limitations to bar the claims for emotional distress, but mistakenly failed to consider the applicability of 12 V.S.A. § 511's general six-year limitation period to the claims for economic harm resulting from dismissal of the underlying lawsuit and other alleged economic costs. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

We reject plaintiff's  argument  that plaintiffs were not reasonably aware of a potential cause of action  until they received a professional analysis in November 2006, so that the complaint—filed in October 2009—was timely.  The great bulk of plaintiff's claims were plainly known or suspected well before the receipt of his analysis. The law does not require absolute certainty for the statute to run. See Bull v. Pinkham Eng'g Assocs., 170 Vt. 450, 456, 752 A.2d 26, 31 (2000) (holding that statute did not commence on plaintiff's negligence claim against surveyor until he acquired evidence to "suspect that the southern boundary depicted on the survey" was inaccurate) (emphasis added). There is no reasonable dispute here that the action accrued no later than March 2006. Accordingly, the claims for personal injury were untimely.

Plaintiff next argues the claims for economic harm in the form of lost income and medical expenses are separately governed by 12 V.S.A. § 511, the general six-year statute of limitations applicable in civil actions, and therefore remain timely. Although  this argument was expressly raised in opposition to defendants' motions for summary judgment, the trial court failed to address it. In Fitzgerald v. Congleton, a legal malpractice case,  we held the emotional distress claims were time-barred under the three-year limitations period of § 512 while the claim for costs and expenses was controlled by the general six-year provision of 12 V.S.A. § 511, and therefore remained timely. On the other hand, the mere fact that economic harm is alleged will not invariably invoke § 511's six-year limitation provision where the "gravamen or essence" of the claim remains personal injury. See Rennie v. State, 171 Vt. 584, 587, 762 A.2d 1272, 1276 (2000) (mem.) (holding that, although plaintiff claimed she lost income and other economic benefits from alleged tortious interference, this did not alter the "underlying nature" of the claim as one for personal injuries governed by § 512's three-year limitation period).  As noted, the trial court did not address or resolve this issue. Accordingly, we conclude that the case must be remanded for the trial court to consider whether the claims for economic harm are sufficiently distinct from the claims for emotional distress to be governed by § 511 and therefore remain timely.

How cited