Pike v. Chuck's Willoughby Pub, Inc.

Pike v. Chuck's Willoughby Pub, Inc. (2005-184); 180 Vt. 25; 904 A.2d 1133

2006 VT 54

[Filed 09-Jun-2006]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2006 VT 54

                                No. 2005-184


  Marijah Pike and Raymond Pike, Guardian        Supreme Court

                                                 On Appeal from
       v.                                        Orleans Superior Court


  Chuck's Willoughby Pub, Inc.,                  March Term, 2006 
  Charles Nebelski, William Watson and 
  Deborah Watson

  Dennis R. Pearson, J.

  Gregory P. Howe and Jennifer A. Wood (On the Brief), Newport, for
    Plaintiff-Appellee.

  Steven J. Watson, Downs Rachlin Martin PLLC, St. Johnsbury, for
    Defendant-Appellant.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

        
       ¶  1.  DOOLEY, J.   Plaintiffs, Marijah Pike and Raymond Pike, (FN1) 
  brought this action against defendant, Chuck's Willoughby Pub, Inc., (FN2) 
  alleging that defendant overserved a patron who then drove while
  intoxicated and struck the vehicle in which Marijah was a passenger,
  injuring her.  Plaintiffs asserted a number of claims, including one
  seeking damages under the Dram Shop Act [hereinafter DSA].  See 7 V.S.A. §
  501(a) (defining cause of action when provider of alcoholic beverages
  continues to serve someone who is visibly intoxicated).  Defendant moved to
  dismiss the claim, arguing that it was filed beyond the DSA's two-year
  limitations period.  The trial court denied the motion but granted
  defendant's request to file this interlocutory appeal, which presents two
  issues: (1) whether the minority tolling provision of 12 V.S.A. § 551(a)
  applies to an action under the DSA, and (2) whether the discovery rule
  articulated in Lillicrap v. Martin, 156 Vt. 165, 176, 591 A.2d 41, 47
  (1989) (holding that cause of action does not accrue until plaintiff
  discovers injury and its cause), applies to an action under the DSA.  We
  conclude that the minority tolling provision does not apply, but the
  discovery rule does apply.  We do not decide whether application of the
  discovery rule in this case brings plaintiffs' action within the
  limitations period, as this is a factual issue that must be developed in
  the trial court in the first instance.  We affirm in part and reverse in
  part.

       ¶  2.  Plaintiffs allege the following facts in their complaint, and
  we take them as true for purposes of reviewing the trial court's decision
  on the motion to dismiss.  Amiot v. Ames, 166 Vt. 288, 291, 693 A.2d 675,
  677 (1997).  On the evening of December 4, 2002, Andrea Poutre and Amy
  Wiley were at defendant Pub where they were served several alcoholic
  beverages.  Both women were visibly intoxicated.  They left the bar in an
  intoxicated state, with Andrea Poutre driving.  Andrea Poutre crashed into
  a car in which Marijah Pike was a passenger, severely injuring her. 
  Marijah-born June 4, 1987-was fourteen years old at the time of the
  accident.  Plaintiffs filed their complaint on December 17, 2004, over two
  years after the date of the accident.
   
       ¶  3.  Defendant filed a motion to dismiss, arguing that plaintiffs'
  complaint was filed outside the two-year limitations period provided by the
  DSA.  See 7 V.S.A. § 501(d) ("An action to recover for damages under this
  section shall be commenced within two years after the cause of action
  accrues, and not after.").  In response, plaintiffs argued that 12 V.S.A. §
  551(a), a provision that delays the commencement of the limitation period
  for minors until the age of majority is reached,  applied to their DSA
  claim such that the limitations period did not even begin to run until
  Marijah turned eighteen on June 4, 2005. (FN3) 

       ¶  4.  In a brief ruling, the trial court denied defendant's motion,
  concluding that the provisions of Title 12, Chapter 23-including the
  minority tolling provision-applied to all civil actions including an action
  under the DSA.  Defendant requested permission to take an interlocutory
  appeal on the issue.  In briefing the question of whether an interlocutory
  appeal should be permitted, plaintiffs offered the additional argument that
  the discovery rule applied to their DSA claim, such that the limitations
  period did not begin to run until Marijah had information sufficient to put
  a reasonable person on notice that a particular defendant may have been
  liable for her injuries. (FN4)  See Earle v. State, 170 Vt. 183, 193, 743 A.2d 1101, 1108 (1999) ("The date of accrual under the statute of
  limitations seeks to identify the point at which a plaintiff should have
  discovered the basic elements of a cause of action: an injury caused by the
  negligence or breach of duty of a particular defendant.").  Determining
  that application of minority tolling and the discovery rule to the DSA were
  both unsettled questions of law, the trial court permitted the
  interlocutory appeal on these issues.  See V.R.A.P. 5(b)(1) (permitting
  appeal before final judgment where "order or ruling involves a controlling
  question of law as to which there is substantial ground for difference of
  opinion and that an immediate appeal may materially advance the termination
  of the litigation" ).  In doing so, the court ruled pro forma that the
  discovery rule applied so that defendant was appellant on both issues.

       ¶  5.  On appeal, defendant argues that the minority tolling provision
  does not apply to all civil actions, but only to those where the applicable
  limitations period is codified in Chapter 23 of Title 12.  Because the DSA
  and its limitations provision are codified in Title 7, defendant argues
  that minority tolling is not available to plaintiffs.  Defendant further
  argues that the Legislature did not intend for the discovery rule to apply
  to actions under the DSA.  Both issues presented in the appeal are
  questions of law which we review de novo.  Main St. Landing, LLC v. Lake
  St. Ass'n, 2006 VT 13, ¶ 7, 17 Vt. L. Wk. 36, 892 A.2d 931.

       ¶  6.  We start with the question of whether the minority tolling
  provision, codified at 12 V.S.A. § 551(a), (FN5) applies to plaintiffs' DSA
  claim.   When interpreting statutory provisions, we begin with the plain
  language of the statute, and, if possible, resolve any questions on this
  basis alone.  Dep't of Taxes v. Murphy, 2005 VT 84, ¶ 5, 178 Vt. 269, 883 A.2d 779.
                                                   
       ¶  7.  Chapter 23 of Title 12 of the Vermont statutes sets forth a
  number of provisions concerned  with "Limitation of Time for Commencement
  of Actions."  Among these is § 511, which provides that a six-year
  limitations period is generally applicable to "civil action[s]."  Other
  sections in the chapter create exceptions to the six-year rule, setting
  forth limitations periods specific to certain types of actions, for
  example, actions for injuries sustained while skiing, § 513, or actions
  based on child sexual abuse, § 522.  Chapter 23 also contains a number of
  tolling provisions, including provisions delaying the running of a
  limitations period when a plaintiff has spent time out of state, § 552, or
  in military service, § 553.  Among these is the minority tolling provision
  at issue in this case, § 551(a), which states: "When a person entitled to
  bring an action specified in this chapter is a minor . . . at the time the
  cause of action accrues, such person may bring such action within the times
  in this chapter respectively limited, after the disability is removed." 
  Accordingly, in cases where the minority tolling provision applies, the
  limitations period does not begin to run until the "disability" of minority
  is removed, that is, when the plaintiff reaches eighteen years of age.  See
  1 V.S.A. § 173 (designating eighteen as the age of majority); Sabia v.
  State, 164 Vt. 293, 308-09, 669 A.2d 1187, 1197 (1995) (concluding that
  minor's claim for childhood sexual abuse accrued on minor's eighteenth
  birthday).  If minority tolling applies in this case, the two-year
  limitations period would have started to run on June 4, 2005, and
  plaintiffs' filing on December 17, 2004 would have been timely.
   
       ¶  8.  Examining the plain language of  § 551(a), the phrase "within
  the times in this chapter respectively limited" can reasonably be read as
  restricting the statute's applicability to causes of action with
  limitations periods set forth in Chapter 23, a view reinforced by the
  statute's applicability to "an action specified in this chapter." 
  Plaintiffs, however, point to the fact that § 511 applies broadly to all
  civil actions, creating a presumptive six-year limitations period from
  which deviation is nonetheless permitted.  See 12 V.S.A. § 511 (setting
  forth general six-year limitations period "except as otherwise provided"). 
  Under this logic, the fact that a cause of action has a different
  limitations period-either in Chapter 23 or elsewhere-does not alter the
  fact that it is a "civil action" that would otherwise be governed by the
  default limitations period of § 511.  Thus, argue plaintiffs, even though
  the DSA "otherwise provide[s]" a limitations period, as a civil action it
  is brought within the scope of Chapter 23 by § 511.

       ¶  9.  To the extent plaintiffs' argument creates any ambiguity in
  interpreting the plain language of § 551(a), that ambiguity is eliminated
  by 12 V.S.A. § 464, which is also located in Chapter 23.  It states: "[t]he
  provisions of this chapter shall not affect an action otherwise specially
  limited by law."  The limitations period for the DSA, codified in Title 7,
  is "otherwise specially limited" and therefore unaffected by § 551(a) or
  any tolling provision contained in Chapter 23.  We have previously endorsed
  precisely this view of the effect of § 464.  In Parent v. Beeman, 138 Vt.
  607, 420 A.2d 866 (1980), both the driver and occupant of an automobile
  were killed in an accident.  The occupant's estate sued the driver's estate
  for wrongful death under 14 V.S.A. §§ 1491-1492.  The wrongful death
  statute provided a two-year limitations period for bringing suit, and the
  defendant moved to dismiss because the plaintiff had filed outside that
  time.  We considered whether § 557(a), another of the tolling provisions
  codified in Chapter 23, applied.  See 12 V.S.A. § 557(a) (tolling
  limitations period for time between decedent's death and the appointment of
  administrator of decedent's estate).
   
       ¶  10.  In concluding that § 557(a) was not available to the
  plaintiff, we relied on both the language of the tolling provision
  itself-stating that it applied to limitations periods "as provided by this
  chapter"-and the operation of § 464.  Parent, 138 Vt. at 610, 420 A.2d  at
  868.  Because the wrongful death statute was contained in Title 14, we held
  that the action was "otherwise specially limited" under § 464 and the
  tolling provision codified in Chapter 23 was inapplicable.  Id.; see also
  Mier v. Boyer, 124 Vt. 12, 13, 196 A.2d 501, 502 (1963) (concluding that
  tolling provision of § 557(a) does not apply to action under wrongful death
  statute because wrongful death action is "otherwise specially limited"
  under § 464).


       ¶  11.  The reasoning in Parent dictates the same result in the
  instant case. (FN6)  Because the DSA contains its own limitations provision
  and is not codified in Chapter 23, an action under the statute is
  "otherwise specially limited" and removed from the operation of the
  minority tolling provision by § 464.

       ¶  12.  As an alternative to application of minority tolling,
  plaintiffs argued before the trial court that the discovery rule delayed
  the commencement of the limitations period under the DSA until the earliest
  date upon which Marijah had information sufficient to put a reasonable
  person on notice that this particular defendant may have been liable for
  her injuries.  See Earle, 170 Vt. at 193, 743 A.2d  at 1108 ("The date of
  accrual under the statute of limitations seeks to identify the point at
  which a plaintiff should have discovered the basic elements of a cause of
  action: an injury caused by the negligence or breach of duty of a
  particular defendant.").  On appeal, defendant argues that (1) like the
  minority tolling provision, the discovery rule applies only to causes of
  action with a limitations period codified in Chapter 23, and (2) because
  the DSA is in derogation of common law, it should be narrowly construed,
  and the discovery rule should not be read into the limitations period
  absent specific language to that effect.

       ¶  13.  In addressing these arguments, a brief background on the
  discovery rule is helpful.  The discovery rule was first adopted by this
  Court in Cavanaugh v. Abbot Laboratories, 145 Vt. 516, 496 A.2d 154 (1985). 
  Prior to our decision in Cavanaugh, we adhered to the rule that a cause of
  action accrued on the date of the last act of negligence by the defendant. 
  See Murray v. Allen, 103 Vt. 373, 376, 154 A. 678, 679 (1931).  While this
  Court was still operating under the Murray rule, the Legislature enacted 12
  V.S.A. § 512(4), which defined the concept of accrual differently in cases
  of personal injury: as the date that the plaintiff discovered his or her
  injury.  See Cavanaugh, 145 Vt. at 521, 496 A.2d  at 158.  Thereafter, a
  number of appeals were brought arguing that we should abandon the Murray
  rule and interpret the date of accrual as the date the plaintiff discovers
  the injury, bringing the common-law rule in line with the legislative
  enactment.  Id. at 523-24, 496 A.2d  at 159.  Initially, we declined to do
  so, emphasizing that the Legislature had deemed it appropriate to enact a
  discovery rule with respect to certain causes of action and not others, and
  that the Court would not extend application of the concept further.  Id. at
  524, 496 A.2d  at 159.
            
       ¶  14.  Finally in Cavanaugh we abandoned the Murray rule and the
  logic supporting it.  Id.  at 525, 496 A.2d  at 160.  Our reason for doing
  so was twofold: first, we considered the policy rationale underlying the
  discovery rule persuasive; second, there was a need to have a uniform
  definition of the term "accrue" wherever it appeared.  See Earle, 170 Vt.
  at 192 n.6, 743 A.2d  at 1107 n.6 (noting Cavanaugh adopted discovery rule
  "to unify the definition of accrual in statute of limitations cases and
  because allowing the limitations period to run before the plaintiff
  discovers an injury would be unjust"); see also Cavanaugh, 145 Vt. at
  525-26, 496 A.2d  at 160-61 (noting common-law discovery rule "coincides"
  with statutory definitions of the term "accrue").  In subsequent decisions,
  we clarified that a cause of action accrued when the plaintiff discovered
  both the injury and its cause.  Lillicrap, 156 Vt. at 176, 591 A.2d  at 47; 
  Earle, 170 Vt. at 193, 743 A.2d  at 1108 ("The date of accrual under the
  statute of limitations seeks to identify the point at which a plaintiff
  should have discovered the basic elements of a cause of action: an injury
  caused by the negligence or breach of duty of a particular defendant.").
  (FN7)
   
       ¶  15.   Thus, it is apparent from the development of the rule at
  common law-in particular the ultimate rejection of any implicit legislative
  limitation on the rule and the overarching concern for a uniform
  approach-that it was intended to apply more broadly than any legislative
  enactment and does not require an expression of legislative intent to be
  applied in any particular case.  Further, application of the discovery rule
  does not require that language or concepts be imported into a statute;
  rather, it is a rule providing for uniform interpretation of a recurring
  statutory term-that is, "accrue" and its variants.  These characteristics
  of the discovery rule implicitly defeat both of defendant's arguments: that
  the discovery rule is limited to actions under Chapter 23 or requires an
  express statement of legislative intent to apply.
   
       ¶  16.  This interpretation of the scope and function of the
  discovery rule is confirmed by our decision in Leo v. Hillman, 164 Vt. 94,
  665 A.2d 572 (1995).  There we explained that the discovery rule applies
  whenever a limitations period does not set forth a determinable fact that
  triggers accrual.  Id. at 98-99, 665 A.2d  at 575.  For example, the
  limitations period for a wrongful death action, the statute at issue in
  Leo, runs from a date certain-the date of decedent's death.  Id.  The date
  of decedent's death is based on facts that "are known and indisputable." 
  Id. at 94, 665 A.2d  at 575.  Therefore, in such cases, the discovery rule
  does not apply.  By contrast, where a limitations period simply refers to a
  set period of time from "accrual" of the action, this requires additional
  factual inferences to determine the date on which the action
  accrued-namely, when the plaintiff discovered or should have discovered his
  or her injury.  Id. at 98, 665 A.2d  at 575.  While Leo  held that 
  Cavanaugh did not "require reading a discovery rule into every limitations
  provision within Vermont law," the discovery rule's method for calculating
  the date of accrual would apply "in any of the myriad of statutes in which
  the limitations period runs from the accrual date."  Id.  The first of this
  "myriad of statutes" that the opinion lists is 7 V.S.A. § 501(d), the
  limitations period of the DSA.  Id. at 98 n.2, 665 A.2d  at 575 n.2.

       ¶  17.  Based on our rationale for applying the discovery rule, it is
  apparent that it applies to the limitations period under the DSA.  Unlike
  the statutory minority tolling provision, the discovery rule is an
  overarching, common-law rule for interpreting a specific statutory phrase,
  "accrue" or its variants, wherever it appears, and it appears in the DSA. 
  See 7 V.S.A. § 501(d) ("An action for damages under this section shall be
  commenced within two years after the cause of action accrues, and not
  after."). (FN8)  Application of the rule does not require us to import
  language into the statute; nor is it confined to limitations periods
  codified in Chapter 23.
                   
       ¶  18.  Defendant also argues that plaintiffs had sufficient
  information to file their complaint as of December 4, 2002, the date of the
  accident, such that application of the discovery rule would not extend the
  time in which plaintiffs were entitled to file their action.  Determination
  of the date of accrual under the discovery rule is a factual issue that
  generally should be decided by the jury.  See Lillicrap, 156 Vt. at 172,
  591 A.2d  at 44 (holding that question of when injury was or reasonably
  should have been discovered is generally one of fact for jury to
  determine).  We are reviewing a motion to dismiss a complaint, and there
  are no allegations in the complaint relative to when the limitation period
  commenced under the discovery rule.  Through memoranda of law, the parties
  started adding factual allegations when the court was considering whether
  to allow an interlocutory appeal and, if the appeal were allowed, the scope
  of the appeal.  As we noted in ¶ 4, supra, the court never ruled on the
  merits of the discovery rule question.  With no facts properly before it,
  the court never addressed whether plaintiffs' complaint was timely under
  the discovery rule  or whether the issue should be decided by the jury.  We
  conclude that, like the trial court, we cannot address whether plaintiffs'
  complaint was timely on the facts of this case.  See Brigham v. State, 2005
  VT 105, ¶ 12, 16 Vt. L. Wk. 311, 889 A.2d 715 (court's function in
  reviewing a motion to dismiss is not to evaluate evidence that might be
  presented at trial but only to judge the legal sufficiency of the
  complaint).  
   
       ¶  19.  In light of the Legislature's unequivocal intent to
  restrict minority tolling to those causes of action limited in Chapter 23
  of Title 12-expressed in § 551(a) itself and in § 464-minority tolling is
  not available to plaintiffs with respect to their DSA claim.  The discovery
  rule, however, with its much broader application, is available to
  plaintiffs.  The question of whether application of the discovery rule
  renders plaintiffs' filing timely in this particular case must be addressed
  on remand.

       Affirmed in part, reversed in part, and remanded for further
  proceedings consistent with this opinion.

       FOR THE COURT:


       _______________________________________
  Associate Justice



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                                  Footnotes



FN 1.  Raymond Pike is the father and guardian of Marijah Pike.

FN 2.  Plaintiffs also joined Charles Nebelski, president and owner of
  Chuck's Willoughby Pub, Inc., and William and Deborah Watson, owners of the
  building containing the Pub.

FN 3.  Plaintiffs also argued that the three-year limitations period for
  personal injury applied to their negligence claims.  The trial court did
  not rule on this issue and it is not before us for review.  Similarly,
  while defendant argues that we should address the issue of whether
  plaintiffs' negligence claim is precluded by the DSA claim as a matter of
  law, this issue was not addressed by the trial court and is not before us
  in this interlocutory appeal.

FN 4.  Specifically, plaintiffs argued that, under the discovery rule,
  Marijah's claim did not accrue until April 3, 2003, when Vermont State
  Police made public their determination that Andrea Poutre was the driver of
  the vehicle that hit Marijah.

FN 5.  While currently embodied in statute, we note that the concept of
  minority tolling is "of longstanding vintage under the common law."  Fila
  v. Spruce Mountain Inn, 2005 VT 77, ¶ 10, 16 Vt. L. Wk. 242, 885 A.2d 723.

FN 6.  Because the issue is conclusively resolved by Vermont precedent,
  there is no need to examine the law of foreign jurisdictions, as did the
  trial court and the parties in this case.

FN 7. See also Rodrigue v. VALCO Enters., Inc., 169 Vt. 539, 726 A.2d 61
  (1999) (mem.) (assuming for purposes of argument that the discovery rule
  applied to DSA claim and concluding that action accrued, at very latest,
  when plaintiff knew he had been injured, knew identity of driver, and knew
  that driver had been drinking at defendant's establishment shortly before
  accident).

       We note that Rodrigue did not decide whether the discovery rule
  applied to DSA actions, because we concluded that even under the most
  generous theoretical application of the rule, the plaintiff's action was
  still filed out-of-time.  Therefore, Rodrigue comments only on the latest
  date on which the plaintiff's action could have accrued, not the earliest,
  which is the relevant consideration for purposes of determining whether the
  limitations period was met.  See id. at 541, 726 A.2d  at 63 (concluding
  that by the time the plaintiff knew of the facts listed above, "[the]
  plaintiff had more than sufficient information to alert him that a dram
  shop cause of action . . . might be available to him") (emphasis added).

FN 8.  Defendant's argument that the phrase "and not after" at the
  conclusion of the DSA limitation provision somehow thwarts application of
  the discovery rule has no support either in logic or precedent.  Indeed,
  Cavanaugh construed 12 V.S.A. § 512, which contains the exact same
  language, as implicitly including the common-law discovery rule even before
  the section was amended to expressly include the rule.  See Cavanaugh, 145
  Vt. at 522, 496 A.2d  at 158-59.