Rodrigue v. VALCO Enterprises, Inc.

Rodrigue v. VALCO Enterprises, Inc.  (97-491); 169 Vt. 539; 726 A.2d 61

[Filed 25-Jan-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-491

                             JANUARY TERM, 1999



Maurice L. Rodrigue	             }	APPEALED FROM:
                                     }
                                     }
     v.	                             }	Orleans Superior
                                     }	
VALCO Enterprises, Inc.,	     }
d/b/a Valley's Steak House and	     }	DOCKET NO. 63-03-96 Oscv
Renee C. Valley	                     }



       In the above-entitled cause, the Clerk will enter:


       Plaintiff appeals the superior court's determination that his dram
  shop action was filed  beyond the applicable limitations period.  We
  affirm.

       In the early evening hours of December 21, 1993, a driver rear-ended
  the car plaintiff was  driving and left the scene of the accident without
  stopping.  On February 14, 1994, following a  police investigation of the
  accident, Peter Langmaid was arraigned on charges of (1) driving with  a
  suspended license, fifth offense; (2) driving in a careless and negligent
  manner; and (3) leaving  the scene of an accident.  On March 19, 1996,
  plaintiff filed a complaint against VALCO  Enterprises, Inc., d/b/a
  Valley's Steak House, and the business's owner, Rene C. Valley, alleging 
  negligence, gross negligence, violation of Vermont's Dram Shop Act, 7
  V.S.A. §§ 501-507, and  fraudulent concealment.  In October 1997, following
  a hearing, the superior court granted  summary judgment to defendants,
  ruling that (1) plaintiff's dram shop claim accrued in February  1994, and
  thus was filed beyond the Dram Shop Act's two-year limitations period; (2)
  any  fraudulent concealment on the part of Rene Valley did not toll the
  limitations period after the dram  shop claim had accrued; and (3) the Dram
  Shop Act preempted plaintiff's common law negligence  claims.  On appeal,
  plaintiff argues that the court erred in dismissing his complaint because
  (1)  his dram shop claim did not accrue until the fall of 1994 when he
  learned that Langmaid was  overserved intoxicating liquor at Valley's Steak
  House; (2) Rene Valley's fraudulent concealment  of the dram shop cause of
  action tolled the limitations period; and (3) the Dram Shop Act did not 
  preempt his common law claims.

       An action to recover damages under the Dram Shop Act "shall be
  commenced within two  years after the cause of action accrues, and not
  after."  7 V.S.A. § 501(d).  Injuries to the person  are generally "deemed
  to accrue as of the date of the discovery of the injury."  12 V.S.A. § 
  512(4).  At least in the context of professional malpractice cases, we have
  construed the  "discovery rule" to commence the running of the statute of
  limitations "`only when a plaintiff  discovers or reasonably should
  discover the injury, its cause, and the existence of a cause of  action.'" 
  Lillicrap v. Martin, 156 Vt. 165, 176, 591 A.2d 41, 47 (1989) (quoting Ware
  v.  Gifford Mem'l Hosp., 664 F. Supp. 169, 171 (D. Vt. 1987)); cf. Graham
  v. Canadian Nat'l Ry.,  749 F. Supp. 1300, 1317 (D. Vt. 1990) (property
  owners' personal injury and property damage  claims


 

  did not accrue under Vermont law until plaintiffs had valid reason to
  suspect that their injuries  were caused by herbicides on their property). 
  Plaintiff urges us to apply the same discovery rule  here.  Although they
  did not file a cross-appeal, defendants argue that the discovery rule as 
  applied by the superior court in this case should be restricted to
  professional malpractice cases.  See, e.g., Riojas v. Phillips Properties,
  Inc., 828 S.W.2d 18, 22-27 (Tex. App. 1991) (majority  and dissent debate
  whether "legal injury rule" or "discovery rule" should be applied in dram
  shop  cases).  We need not resolve whether the discovery rule as set forth
  in Lillicrap should be applied  in dram shop cases because, assuming that
  it should be, we uphold the superior court's  determination that
  plaintiff's cause of action against defendants accrued in February 1994.

       By February 1994, plaintiff knew the extent of his personal injuries
  and the damage to his  property caused by the accident.  He knew that
  Langmaid was the driver of the car that struck  him.  He knew that Langmaid
  had been drinking at Valley's Steak House shortly before the  accident. 
  Indeed, he had had discussions with a state representative concerning
  Langmaid being  served alcohol at Valley's before the accident.  Further,
  he had seen the state's information  charging Langmaid with operating a
  motor vehicle in a careless and negligent manner "by driving  under the
  influence" and striking another vehicle.  Moreover, he was aware that a
  police  investigation had concluded that Langmaid had been served alcohol
  at Valley's the evening of the  accident.  Plaintiff concedes his awareness
  of these facts in February 1994, but contends that his  dram shop action
  had not yet accrued because at that point in time he was not in possession
  of  facts demonstrating that Langmaid had been overserved at Valley's. 
  Noting that it is not against  the law for a duly licensed establishment to
  serve alcohol to its patrons, plaintiff asserts that he  could not file a
  dram shop action until he had evidence that Langmaid had been overserved in 
  violation of the Dram Shop Act.

       Plaintiff reads too much into the discovery rule.  It is important to
  keep in mind that the  discovery rule seeks to establish the appropriate
  time from which to commence the running of the  limitations period.  The
  courts must determine at what point a plaintiff had information, or should 
  have obtained information, sufficient to put a reasonable person on notice
  that a particular  defendant may have been liable for the plaintiff's
  injuries.  See Lillicrap, 156 Vt. at 174, 591 A.2d  at 46 (point arises
  when reasonable person should be able to ascertain that her legal rights 
  have been violated); Burgett v. Flaherty, 663 P.2d 332, 334 (Mont. 1983)
  (test is whether plaintiff  has information of circumstances sufficient to
  put reasonable person on inquiry, or has opportunity  to obtain knowledge
  from sources open to his or her investigation).  That is the point from
  which  a plaintiff may use the limitations period to investigate or pursue
  a cause of action.  See Burgett,  663 P.2d  at 334 (if plaintiff believes
  that someone has done something wrong to cause her  injuries, such fact is
  sufficient to alert her to investigate and pursue her remedies).  The
  plaintiff  need not have an airtight case before the limitations period
  begins to run.  Fleshing out the facts  will occur during investigation of
  the matter or during discovery after the lawsuit is filed.

       Accordingly, the limitations period begins to run "when the plaintiff
  has or should have  discovered both the injury and the fact that it may
  have been caused by the defendant's negligence  or other breach of duty." 
  Lillicrap, 156 Vt. at 175, 591 A.2d  at 46 (emphasis added); see Ware,  664 F. Supp.  at 171 (limitations period for medical malpractice action began to
  run when plaintiff  was on notice that she "might" have legal rights she
  should explore because "perhaps" caesarean  birth should have been
  performed).  We agree with the trial court that by February 1994, plaintiff 
  had more than sufficient information to alert him that a dram shop cause of
  action against Valley's  might be available to him.  Plaintiff had seen the
  state's information charging Langmaid with  careless and negligent
  operation by driving under the influence of intoxicating liquor.  Further, 
  he knew that a police investigation had concluded that Langmaid had been
  drinking at Valley's  the evening of the accident.  Although at that point
  he could not be sure that Langmaid had been  overserved at Valley's that
  night, he knew that he would have access to a police report providing  more
  details of the circumstances surrounding the accident.


  
 
  As it turned out, the report, which was available from the Department of
  Motor Vehicles in June  1994, strongly suggested that Langmaid was indeed
  overserved intoxicating liquor at Valley's the  evening of the accident. 
  According to plaintiff, as far as he knew in February 1994, Langmaid  may
  have had only one drink at Valley's and then had several more in his car
  before driving off.  Such a scenario could not have been ruled out at that
  time, but the information plaintiff was  aware of even in February 1994
  presented far more than a "remote possibility" that Valley's had 
  overserved Langmaid.  See Byers v. Burleson, 713 F.2d 856, 861 (D.C. Cir.
  1983) (under  essential-facts test, limitations period did not begin to run
  when only "remote possibility" existed  that attorney had been guilty of
  legal malpractice).

       Because there is no dispute as to what material facts plaintiff was
  aware of in February  1994, and because we conclude that those facts were
  sufficient, as a matter of law, for plaintiff's  dram shop action to
  accrue, we reject plaintiff's argument that the superior court erred by not 
  allowing the jury to decide the issue.  See Ware, 664 F. Supp.  at 171
  (generally determination of  when plaintiff actually discovered or
  reasonably should have discovered injury is factual  determination for
  jury, but summary judgment may be granted to defendant if there is no
  material  factual dispute and no reasonable factfinder could differ in
  finding for defendant); Morris v. Geer,  720 P.2d 994, 997 (Colo. Ct. App.
  1986) (determining time when plaintiff discovered or should  have
  discovered negligent conduct is normally issue for trier of fact, but issue
  may be decided as  matter of law when undisputed facts clearly show that
  plaintiff discovered or reasonably should  have discovered negligent
  conduct by certain time).

       Plaintiff also argues that even if the limitations period began to run
  in February 1994, it was  tolled as the result of Rene Valley's fraudulent
  concealment of defendants' tortious conduct.  In  making this argument,
  plaintiff points to evidence indicating, among other things, that Valley
  told  the bartender who had served Langmaid the evening of the accident not
  to speak to plaintiff or his  attorney and to tell the business's insurance
  adjuster that she had served Langmaid only two  drinks.  We conclude that
  the trial court properly rejected this argument.  Under 12 V.S.A. § 555,  a
  limitations period may be tolled when "a person entitled to bring a
  personal action is prevented  from doing so by the fraudulent concealment
  of the cause of such action by the person against  whom it lies."  In this
  case, any fraudulent concealment on the part of Rene Valley did not prevent 
  plaintiff from bringing his dram shop action within the limitations period. 
  We have already  concluded that plaintiff knew enough in February 1994 for
  the two-year limitations period to  commence.  See Estate of Chappelle v.
  Sanders, 442 A.2d 157, 158 (D.C. 1982) (one well-established defense to
  claim of fraudulent concealment is that plaintiff knew, or by exercise of
  due  diligence could have known, that he may have had cause of action; mere
  doubt by party as to right  to recover in lawsuit will not suspend running
  of limitations period).  By the beginning of 1995,  notwithstanding any
  fraudulent concealment on the part of Rene Valley, plaintiff had access to 
  ample information indicating that Valley's had overserved Langmaid the
  night of the accident.  See id. at 159 (fraudulent concealment did not toll
  limitation period where plaintiff possessed  information with which timely
  claim could have been filed).  Accordingly, § 555 does not support 
  plaintiff's fraudulent concealment claim.

       Finally, plaintiff argues that the superior court erred by dismissing
  his common law  negligence and gross negligence claims.  We disagree.  We
  have held that the "Dram Shop Act  provides the exclusive remedy for cases
  falling within its scope, and preempts a cause of action  in common law
  negligence."  Winney v. Ransom & Hastings, Inc., 149 Vt. 213, 216, 542 A.2d 269, 270 (1988).  Notwithstanding his arguments to the contrary,
  plaintiff's negligence claims  against defendants are plainly within the
  scope of the Act and thus preempted.



 


       Affirmed.






FOR THE COURT:



_______________________________________
Jeffrey L. Amestoy, Chief Justice

_______________________________________
John A. Dooley, Associate Justice

_______________________________________
James L. Morse, Associate Justice

_______________________________________
Denise R. Johnson, Associate Justice

_______________________________________
Marilyn S. Skoglund, Associate Justice