36-2-1081 Zurich
American Insurance Company v. Abbud, App. Div. (per curiam) (13 pp.)
The appellate panel affirms, finding the discovery rule inapplicable. It
is clear that on August 19, 2005, the facts known to plaintiff were sufficient
to start the statute of limitations running. Because plaintiff knew that Bill
had been injured, and knew the identity of the responsible party, the trial
judge correctly held that the discovery rule did not excuse violation of the
two-year statute of limitations. What the court is saying here
is that an attorney who is hired by a client must investigate all aspects
of the client's case pursuant to the Rules of Professional Conduct to protect
the client's interest. The 'discovery rule' identified the moment when the
attorney knew or should have known that a viable claim has arisen on
behalf of the client. This longstanding principle was first
established in Lopez vs. Lopez. Plaintiff Zurich American Insurance Company, a worker's compensation insurer, as a subrogee of Daniel Bill, appeals
from the grant of defendants' summary judgment motion which dismissed
plaintiff's medical malpractice complaint because it was filed beyond the
applicable statute of limitations. Plaintiff contends that the "discovery
rule," should apply to toll the limitations period. Alternatively,
plaintiff argues that it properly employed the fictitious party rule, and its
second and third amended complaints naming certain defendants for the first
time related back to the timely-filed original complaint, thus avoiding
application of the limitations period. Now because the court has ruled
that the attorney was aware of the injury and the identity of
the responsible party, that attorney committed malpractice when s/he
did not name then directly in the initial law suit.
Submitted New Jersey Attorney, Jeffrey Hark.
