finding the distinction between N.C. Gen.Stat. § 1-52(5) and § 1-52(16) ambiguous and concluding that the discovery rule applies to wrongs under section 1-52(5) if the injury is latent
How later courts described this case
- finding the distinction between N.C. Gen.Stat. § 1-52(5) and § 1-52(16) ambiguous and concluding that the discovery rule applies to wrongs under section 1-52(5) if the injury is latent
- explaining that latent injury claims remain subject to the statute of repose in § 1-52(16)
- finding N.C. Gen. Stat. § 1-52 (16) ambiguous on its face because “[t]he term personal injury has a wide range of meanings”
- indicating that Section 1-52(16) applies to “torts resulting in certain latent injuries”
Written by the judges who cited it.
The opinion
Chief Justice PARKER
dissenting.
In my view the Court of Appeals’ majority correctly determined that because “the cause of action for criminal conversation is specifically identified in the three-year statute' of limitations contained in § 1-52(5), the discovery exception does not apply to criminal conver *627 sation cases.” Misenheimer v. Burris, 169 N.C. App. 539, 542 , 610 S.E.2d 271, 273 (2005).
The elements necessary to support a claim for criminal conversation are marriage and sexual intercourse between the defendant and the plaintiff’s spouse during the existence of the marriage. See Bryant v. Garner, 214 N.C. 191, 194-95 , 198 S.E. 619, 621 (1938); see also 1 Suzanne Reynolds, Lee’s North Carolina Family Law § 5.46(B), at 402 (5th ed. 1993) [hereinafter Family Law], Criminal conversation is frequently described as a strict liability tort in that a plaintiff may prevail even if the defendant was unaware of the marriage. A plaintiff is not required to prove love and affection in the marriage or any negative effect on the marriage by the sexual intercourse. See, e.g., Family Law § 5.46(B), at 403-04.
A plaintiff must file an action within three years for “criminal conversation, or for any other injury to the person or rights of another, not arising on contract and not hereafter enumerated.” N.C.G.S. § 1-52(5) (2005). The discovery rule provides an exception for latent injuries or damages:
Unless otherwise provided by statute, for personal injury or physical damage to claimant’s property, the cause of action . . . 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 the claimant, whichever event first occurs.
Id. § 1-52(16).
By its very terms, the discovery rule exception excludes from its scope those actions provided for elsewhere in the statutes and includes only those claims involving “personal injury or physical damage to claimant’s property.” The tort of criminal conversation is specifically provided for in section 1-52(5); hence, the exception does not apply.
Contrary to the assertions of the majority, the language of the discovery rule is unambiguous with respect to its use of the term “personal injury.” Immediately after the term “personal injury,” the statute refers to the accrual of a cause of action upon a claimant’s discovery of “bodily harm.” Thus, the type harm contemplated by the General Assembly in laying out the exception to the three year statute of limitations that would otherwise apply is latent, physical, “bodily” harm: in other words, the type harm that would give rise to an action for personal injury. The effect of the majority’s opinion would be to pro *628 vide, in essence, a claim for personal injury to an aggrieved spouse seeking damages for the separate strict liability tort of criminal conversation. The injury giving rise to a cause of action for criminal conversation is to the spousal relationship; any particular harm suffered by the plaintiff may be considered on the issue of damages but is not an element of the tort of criminal conversation. See, e.g., Bryant, 214 N.C. at 194 , 198 S.E. at 621 ; Cottle v. Johnson, 179 N.C. 426, 428-29 , 102 S.E. 769, 770 (1920).
I would vote to affirm the majority opinion of the Court of Appeals below; therefore, I respectfully dissent.