Misenheimer v. Burris4/5/2005
Gen. Stat. § 1-52(16). The applicable statute of limitations "shall not accrue until bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to claimant." Id.
The primary purpose of N.C. Gen. Stat. § 1-52(16) is that it is intended to apply to plaintiffs with latent injuries. Specifically, § 1-52(16) protects a potential plaintiff in the case of a latent injury by providing that a cause of action does not accrue until the injured party becomes aware or should reasonably have become aware of the existence of the injury. As soon as the injury becomes apparent to the claimant or should reasonably become apparent, the cause of action is complete and the limitation period begins to run.
Soderlund v. Kuch, 143 N.C. App. 361, 370, 546 S.E.2d 632, 638 (internal citations and quotations omitted) (emphasis supplied), disc. rev. denied, 353 N.C. 729, 551 S.E.2d 438-39 (2001).
A. Fraud and Criminal Conversation
The General Assembly's application of a discovery rule to claims of fraud is instructive. Our Supreme Court held: Fraud has no all-embracing definition. Because of the multifarious means by which human ingenuity is able to devise means to gain advantages by false suggestions and concealment of the truth, and in order that each case may be determined on its own facts, it has been wisely stated "that fraud is better left undefined," lest, as Lord Hardwicke put it, "the craft of men should find a way of committing fraud which might escape a rule or definition." However, in general terms, fraud may be said to embrace "all acts, omissions, and concealments involving a breach of legal or equitable duty and resulting in damage to another or the taking of undue or unconscientious advantage of another."
Vail v. Vail, 233 N.C. 109, 113, 63 S.E.2d 202, 205 (1951) (citations and quotations omitted) (emphasis supplied).
Due to the clandestine and concealing nature of the tortfeasors, it is "difficult to establish with certainty when the statute of limitations on a claim of fraud begins to run." Jennings v. Lindsey, 69 N.C. App. 710, 715, 318 S.E.2d 318, 321 (1984). Consequently, the General Assembly specifically provided claimants of fraud actions a discovery rule. See N.C. Gen. Stat. § 1-52(9) (2003) ("For relief on the ground of fraud . . . the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting fraud . . . ."). When there is concealment of material facts, "the statute of limitations does not bar a suit for relief on account of it, and thereby permit the statute which was designed to prevent fraud to become an instrument to perpetrate and perpetuate it." Small v. Dorsett, 223 N.C. 754, 761, 28 S.E.2d 514, 518 (1944). Criminal conversation is defined as "'actual marriage between the spouses and sexual intercourse between defendant and the plaintiff's spouse during the coverture.'" Nunn v. Allen, 154 N.C. App. 523, 535, 574 S.E.2d 35, 43 (2002) (quoting Brown v. Hurley, 124 N.C. App. 377, 380, 477 S.E.2d 234, 237 (1996)), motion dismissed, motion and disc. rev. denied, 356 N.C. 675, 577 S.E.2d 630, 631 (2003). "'The gravamen of the cause of action . . . is the defilement of plaintiff's [spouse] by the defendant.'" Johnson v. Pearce, 148 N.C. App. 199, 200, 557 S.E.2d 189, 190 (2001) (quoting Chestnut v. Sutton, 207 N.C. 256, 257, 176 S.E. 743, 743 (1934)). The goal of the remedy is to protect a spouse's interest in "'the fundamental right of exclusive sexual intercourse between spouses, and also on the loss of consortium.'" Sebastian v. Kluttz, 6 N.C. App. 201, 209, 170 S.E.2d 104, 108 (1969) (quotation omitted). "In determi
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