“The discovery rule delays accrual until the plaintiff has reason to know ‘by the exercise of reasonable diligence’ that defendant harmed her.”
How later courts described this case
- “The discovery rule delays accrual until the plaintiff has reason to know ‘by the exercise of reasonable diligence’ that defendant harmed her.”
- “ “While the plaintiff certainly must exercise reasonable diligence, to inform himself of the facts and how they relate to each other, the statutes should not begin to run until through reasonable diligence the plaintiff should have reason to know that a claim exists.’ ”
- "[A] cause of action in a malpractice case accrues when the plaintiff knew or by the exercise of reasonable diligence should have known of the defendant's conduct."
- discovery rule developed to address ambiguity of term “accrues”
Written by the judges who cited it.
The opinion
HAIRE, Judge
(dissenting) :
From the standpoint of considering what the law “ought to be” I agree with much that is stated in the majority opinion. However, because of what I consider to be the proper function of the judiciary, and in particular that of an intermediate appellate court, I feel that I must resist the temptation to venture into the legislative arena to effect a change in the existing Arizona statutory laws governing the limitation of actions. I believe that the question of the desirability of the changes in Arizona statutory law which are wrought by the majority opinion are matters which should be left to the legislature, especially inasmuch as the legislature is presently considering statutory amendments dealing with the precise question here involved. See H.B. 225, First Regular Session, Thirtieth Legislature, introduced February 16, 1971.
At the time of the enactment of the existing statutes of limitation governing various civil actions, the legislature was not unaware of the judicially established meaning of the word “accrues” and adopted statutory modification of that meaning in instances concerning which it felt that overriding public policy demanded such modification. Thus in A.R.S. § 12-543, subsec. 3 concerning fraud cases the legislature expressly enacted the discovery rule here urged. For a few of many other instances of statutory modification of the established judicial meaning of the word “accrues,” see A.R.S. § 12-542, subsec. 2 and A.R.S. § 12-542, subsec. 6. Nor was the legislature unaware that in certain circumstances overall public policy might best be served by providing for the tolling of the statute of limitations on an accrued cause of action. See A.R.S. § 12-501 relating to-defendant’s absence from the state; 12— 502 relating to minority, insanity and imprisonment; and 12-504 relating to the effect on the statute of limitations of either the prospective plaintiff or prospective defendant’s death.
The point of the foregoing is that the statute of limitations governing injuries to’ the person being considered in this action is a part of a complex, well-thought out body of statutory limitation law. The necessity for the modification of that law is a question for the legislature to consider, and if such modification be found necessary, then the legislature is much better suited to accomplish that modification and can impose such limitations and safeguards as it deems necessary and proper in view of sometimes conflicting and inter-relating public policy considerations.
Apart from the foregoing, there is a further reason why I must dissent from the conclusions reached by the majority. In my opinion, the function of an intermediate appellate court is to apply the law as it has been applied by previous opinions of the highest state appellate court, and let that higher court reconsider the existing law if appropriate. It seems clear to me that the basic principle underlying the Arizona Supreme Court’s holdings in many prior decisions, and particularly in Acton v. Morrison, supra, has been that in the absence of fraudulent concealment, the statute of limitations in a negligence action runs from the date of the defendant’s conduct which constitutes the tort with which he is charged. That basic underlying principle should not be subjected to modification by a lower appellate court. While the application of this appellate discipline may occasionally require an intermediate appellate court to arrive at a result which it would not otherwise reach, the principle is a necessary cornerstone of any orderly and workable court system.