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Feltmeier v. Feltmeier9/18/2003
the course of the marriage:
"It would be contrary to the public policy of this State, not to mention cruel, to limit recovery to only those individual incidents of assault and battery for which the applicable statute of limitations has not yet run. The mate who is responsible for creating the condition suffered by the battered victim must be made to account for his actions-all of his actions. Failure to allow affirmative recovery under these circumstances would be tantamount to the courts condoning the continued abusive treatment of women in the domestic sphere." (Emphasis in original.) Cusseaux v. Pickett, 279 N.J. Super. 335, 345, 652 A.2d 789, 794 (1994).
Therefore, based upon the foregoing reasons, we agree with the appellate court herein, the court in Pavlik, and with the growing number of jurisdictions that have found that the continuing tort rule should be extended to apply in cases of intentional infliction of emotional distress.
We note, however, that embracing the concept of a continuing tort in the area of intentional infliction of emotional distress "does not throw open the doors to permit filing these actions at any time." Curtis, 123 Idaho at 604, 850 P.2d at 755. As with any continuing tort, the statute of limitations is only held in abeyance until the date of the last injury suffered or when the tortious acts cease. Thus, we find that the two-year statute of limitations for this action began to run in August 1999, because Lynn's complaint includes allegations of tortious behavior by Robert occurring as late as that month. Applying the continuing tort rule to the instant case, Lynn's complaint, filed August 25, 1999, was clearly timely and her claims based on conduct prior to August 25, 1997, are not barred by the applicable statute of limitations.
Robert contends that even if the acts of alleged abuse are considered to be a continuing tort, the discovery rule should apply to determine when the statute of limitations began to run. Contrary to Robert's contention, the discovery rule is inapplicable here. The discovery rule, like the continuing tort rule, is an equitable exception to the statute of limitations. However, under the discovery rule, a cause of action accrues, and the limitations period begins to run, when the party seeking relief knows or reasonably should know of an injury and that it was wrongfully caused. Belleville Toyota, 199 Ill. 2d at 347; Clay v. Kuhl, 189 Ill. 2d 603, 608 (2000).
By contrast, in the case of a continuing tort, such as the one at bar, a plaintiff's cause of action accrues, and the statute of limitations begins to run, at the time the last injurious act occurs or the conduct is abated. See Pavlik, 326 Ill. App. 3d at 745; Hyon, 214 Ill. App. 3d at 763. Thus, as previously stated, a continuing tort does not involve tolling the statute of limitations because of delayed or continuing injuries, but instead involves viewing the defendant's conduct as a continuous whole for prescriptive purposes. See Pavlik, 326 Ill. App. 3d at 745. We therefore have no need to consider application of the discovery rule here, because we have found that Lynn's complaint was filed within two years of the accrual of her action for the continuing tort of intentional infliction of emotional distress. See Pavlik, 326 Ill. App. 3d at 746-47 (Hertel v. Sullivan, 261 Ill. App. 3d 156 (1994), is distinguishable where dispositive issue was applicability of discovery rule, not continuing tort rule).
The third certified question is whether Lynn's claim against Robert for intentional infliction of emotional distress has been released by the language of their marital settlement agreement. Robert argues that two provisions within t
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