 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Terrace v. City of Texarkana6/21/1999
y the discovery rule would never arise. Nor does "inherently undiscoverable" mean merely that a particular plaintiff did not discover his injury within the prescribed period of limitations; discovery of a particular injury is dependent not solely on the nature of the injury but on the circumstances in which it occurred and plaintiff's diligence as well. An injury is inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence." S.V., 933 S.W.2d at 7; see also Computer Assocs. Int'l, Inc., 918 S.W.2d at 456.
The "unable to discover" concept is typically applied in equitable estoppel type situations where fraud or concealment is alleged as a basis for invoking the discovery rule. See Estate of Stonecipher v. Estate of Butts, 591 S.W.2d 806, 809 (Tex. 1979); Ruebeck v. Hunt, 142 Tex. 167, 176 S.W.2d 738, 739 (1943); Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438, 440 (1940); Owen v. King, 130 Tex. 614, 111 S.W.2d 695, 697 (1938). But in Computer Assocs. Int'l, Inc., the Texas Supreme Court recognized that, " nrelated to fraud or concealment," the discovery rule exception has also been permitted in those cases where the nature of the injury incurred is inherently undiscoverable, i.e., where "it is difficult for the injured party to learn of the negligent act or omission." Computer Assoc. Int'l, Inc., 918 S.W.2d at 456 (quoting Willis v. Maverick, 760 S.W.2d 642, 645 (Tex. 1988)).
TWU cites Koch Oil Co. v. Wilber, 895 S.W.2d 854 (Tex. App.-Beaumont 1995, writ denied). There, the court described the discovery rule as "a judicially constructed test which operates as an exception to the general rule when the claimant was unable to know of his injury when it accrued." Id. at 863. However, the sentence immediately following this statement makes it apparent that this general proposition applies where "the defendant fraudulently conceals the existence of a cause of action from the injured party." Id. at 863. We do not construe the "unable to know" language of this case as stating a requirement for application of the discovery rule in all cases where the facts giving rise to a cause of action are inherently undiscoverable.
TWU cites three other cases in support of its contention that reliance on the discovery rule requires that the claimant could not have known of the injury at the time. It quotes from Diesel Fuel Injection Serv., Inc. v. Gabourel, 893 S.W.2d 610, 612 (Tex. App.-Corpus Christi 1994, no writ), for the proposition that the discovery rule "applies as an exception to the general rule in certain situations in which a claimant is unable to discover his injury at the time it occurs." This case affirmed the application of the discovery rule to a claim of negligent repair of a diesel engine. TWU's quote from this case is better understood when the underlying facts, as reported in the opinion, are considered:
"Gabourel brought the engine to Diesel Fuel for repair in January of 1988 and . . . Diesel Fuel repaired and returned the engine in February of 1988. However, the engine suddenly stopped on the first night out after being overhauled. Diesel Fuel worked on the engine the next day and concluded that there was nothing wrong with it after performing a test run. Over the next two months, Diesel Fuel again did minor maintenance on the engine: on February 15, 1988, it replaced the oil seal and float tank; and on April 11, 1988, it replaced the fuel pump and injectors. Nevertheless, from the time it was returned to Gabourel, the engine failed to perform properly (e.g., froze up, smoked, spit oil, did not have the required power, was missing, used excessive amounts of oil, and generally exhibited substandard perf
Page 1 2 3 4 5 6 7 8 9 10 11 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|