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Siragusa v. Brown12/30/1998
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Once again, we note the general rule that the question of when a claimant discovered or should have discovered the facts constituting a cause of action is one of fact. Oak Grove Inv. v. Bell & Gossett Co. , 99 Nev. 616, 623, 668 P.2d 107S, 1079 (1983). Only where uncontroverted evidence proves that the plaintiff discovered or should have discovered the facts giving rise to the claim should such a determination be made as a matter of law. See Nevada Power Co. v. Monsanto Co., 955 F.2d 1304, 1307 (9th Cir. 1992).
In Massey v. Litton, 99 Nev. 723, 727, 669 P.2d 248, 251 (1983) we held that the term "injury" as used in a medical malpractice statute encompassed "legal injury ."--that is, "both the fact of damage suffered and the realization that the cause was the health care provider's negligence." Likewise, We conclude that the term "injury" as used in NRS 207.520 encompasses discovery of both an injury and the cause of that injury, in this case Brown's alleged racketeering activity. See Penuel v. Titan/Value Equities Group, Inc., 872 P.2d 28, 31 (Or. Ct. App. 1994) (holding that a state RICO cause of action accrues under Oregon's five year statute of limitations when the claimants discovered or in the exercise of reasonable diligence should have discovered that they had been damaged and the cause of their damages and concluding that such determinations were factual) . We conclude that such factual determinations cannot be made as a matter of law. To the extent that the district court based its decision to dismiss Joanne's Nevada RICO claims on the statute of limitations, it erred.
CONCLUSION
We conclude that the district court erred in dismissing Joanne's state law tort claims as being barred by the applicable statutes of limitations; such a determination must be made by the trier of fact. We further conclude that the district court erred in dismissing her Nevada RICO claims as being insufficiently pleaded or barred by the statute of limitations. Therefore, we reverse the dismissal of all of Joanne's tort and Nevada RICO claims and remand this case to the district court for further proceedings consistent with this opinion.
Rose, J.
We concur: Shearing, J. & Young, J.
MAUPIN, J. , with whom SPRINGER, C. J. , agrees, Concurring and Dissenting:
I would affirm the dismissal of the state RICO claims because the facts pleaded in the complaint below do not satisfy the "predicate acts" element of NRS 207-390:
"'"Racketeering activity"' means engaging in at least two crimes related to racketeering that have the same or similar pattern, intents, results, accomplices, victims or methods of commission, or are otherwise interrelated by distinguishing characteristics and are not isolated incidents . . . ."
While references are made in Mrs. Siragusa's complaint to a number of separate violations of the Nevada criminal code, the overall chain of events does not give rise to a "pattern" as intended by the legislature.
First, the alleged events, taken as a whole, and if found to be true, comprise an "isolated incident" designed to defraud Mrs. Siragusa of the proceeds of her marital settlement with Dr. Siragusa. The legislature, in my view, did not intend to characterize isolated individual intentional misconduct as racketeering, or create remedies over and above those existing at common law, whenever one person commits two crimes with a single purpose in mind. Here, as noted, the only purpose of the alleged acts of fraud, if they can be proved, was to deprive Mrs. Siragusa of the benefits of her marital settlement.
The majority correctly notes authorities from other states c
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