# Gust, Rosenfeld & Henderson v. Prudential Insurance Co. of America

> Arizona Supreme Court · June 22, 1995 · 182 Ariz. 586

URL: https://www.frixlaw.com/law-library/cases/9562329

## Case

- **Full name:** GUST, ROSENFELD & HENDERSON, an Arizona Partnership, Plaintiff/Appellee, v. the PRUDENTIAL INSURANCE COMPANY OF AMERICA, a New Jersey Corporation, Defendant/Appellant
- **Court:** Arizona Supreme Court
- **Decided:** June 22, 1995
- **Citations:** 182 Ariz. 586; 193 Ariz. Adv. Rep. 3; 898 P.2d 964; 1995 Ariz. LEXIS 55
- **Precedential status:** Published
- **Opinion:** Concurrence by Martone
- **Judges:** Moeller, Martone, Corcoran, Zlaket, McGregor, Feldman, Ariz, Const
- **Cited by:** 144 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9562329

## How later opinions describe it (automated extraction)

- holding that a cause of action accrues when "the plaintiff knows or, in the exercise of reasonable diligence, should know the facts underlying the cause"
- applying the discovery rule when "the plaintiff's injury or the conduct causing the injury is difficult to detect"
- holding that the trial court correctly let the jury decide when discovery of a contract injury occurred
- explaining that “the discovery rule does not apply” when “the plaintiff’s injury is open and obvious”

## Opinion text

MARTONE, Justice,
concurring.
I agree with the court that the discovery rule can apply to some contract cases. In a very real sense, this case is no different than Tom Reed Gold Mines Co. v. United Eastern Mining Co., 39 Ariz. 533 , 8 P.2d 449 (1932). Sixty-three years ago, we held that the discovery rule applied to an action in trespass, not because it was a tort, but because the defendant concealed facts from the plaintiff. So instead of applying the tort statute of limitations to the tort pled, we applied the fraud statute of limitations, which even today states that the “cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.” A.R.S. § 12-543(3).
*592 This is that sort of case. As we note, ante, at 587, 898 P.2d at 965, Gust wrote to the building’s leasing agent and asked if anything had occurred that would invoke its most favored nation clause. “The leasing agent replied that it had not violated Gust’s most favored nation clause and that it never would.” Id. The discovery rule created by the legislature in A.R.S. § 12-543(3) applies just as it applied in the Tom Reed case.
And this is as it ought to be. Statutes of limitation are, by definition, peculiarly within the province of the legislature. As we note, ante, at 588 n. 1, 898 P.2d at 966 n. 1, the legislature has adopted the discovery rule for some contract cases and not for others. But whenever there is concealment, the statutory discovery rule applies whatever the label of the cause of action. Because the rule the court adopts is but a modest extension of the discovery rule from cases in which there is true concealment to a carefully tailored class of contract cases in which “injury is difficult for plaintiff to detect,” ante, at 590, 898 P.2d at 968, I join its opinion.
FELDMAN, C.J., did not participate in this matter; pursuant to Ariz. Const, art. 6, § 3, RUTH V. McGREGOR, Judge of the Court of Appeals, Division One, was designated to sit in his stead.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9562329. Public record. Not legal advice.