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Anderson v. Davis12/21/1995
Appellant, James Anderson, appeals from the trial court's grant of summary judgement in favor of appellees, Mickey R. Davis and State Farm Mutual Automobile Insurance Company (State Farm). In two points of error, Anderson contends the trial court erred by granting Davis's motion for summary judgement and by dismissing Anderson's cause of action against State Farm. We affirm.
Summary of facts
Anderson was involved in an automobile collision with Davis on September 12, 1992. On January 30, 1995, Anderson filed his original petition asserting a cause of action against Davis for negligence and seeking damages for personal injuries, including physical pain, mental anguish, lost wages, diminished earning capacity, business opportunity loss, loss of consortium, and emotional distress. In his petition, Anderson also asserted a cause of action against State Farm for its alleged refusal to settle within the limits of the insurance policy it issued to Davis.
Davis filed a motion for summary judgement asserting Anderson's suit against Davis and State Farm was barred by the statute of limitations and should be dismissed because more than two years had passed between the date of the collision and the date Anderson filed his original petition. Anderson filed a response to the motion, arguing a genuine issue of material fact existed as to the date when limitations began to run because he did not and could not discover the cause in fact of his injuries until after January 30, 1993. The trial court granted the motion for summary judgment.
Statute of limitations
In his first point of error, Anderson argues the trial court erred in granting summary judgement for Davis and State Farm because a genuine issue of material fact exists as to the date his cause of action accrued.
In a motion for summary judgment, the movant has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). When a defendant moves for summary judgment on an affirmative defense, the defendant must conclusively prove each element of the defense as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984); Rose v. Baker & Botts, 816 S.W.2d 805, 809 (Tex. App.--Houston [1st Dist.] 1991, writ denied). In reviewing a summary judgment, evidence favoring the non-movant will be taken as true, and every reasonable inference in favor of the nonmovant will be resolved in its favor. Nixon, 690 S.W.2d at 548-49; Clark v. Pruett, 820 S.W.2d 903, 905 (Tex. App.-- Houston [1st Dist.] 1991, no writ).
A defendant seeking summary judgement based on the statute of limitations must prove when the cause of action accrued and must negate the applicability of the discovery rule if pled by the nonmovant. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex. 1990); Seibert v. General Motors Corp., 853 S.W.2d 773, 775 (Tex. App.--Houston [14th Dist.] 1993, no writ). When the affirmative defense is established, the burden of raising a disputed fact issue shifts to the nonmovant. Seibert, 853 S.W.2d at 775.
Determining when a cause of action accrues is a question of law. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990); Seibert, 853 S.W.2d at 776. In personal injury actions, a cause of action generally accrues when a wrongful act effects an injury, regardless of when the plaintiff learns of the injury. Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex. 1977); Seibert, 853 S.W.2d at 776. The discovery rule is an exception to this general rule of accrual, and when applied, operates to toll the running of the period of limitations until the
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