Discovery Rule does Not Excuse Violation of the Two-Year Statute of Limitations

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.