Investors REIT One v. Jacobs

546 N.E.2d 206, 46 Ohio St. 3d 176, 1989 Ohio LEXIS 277
Ohio Supreme Court·Decided November 8, 1989·No. No. 88-982·Published·Cited by 208 cases

Opinions

John V. Corrigan, J.

The issue presented for our consideration by the appellant-trusts, IRO and IRT, queries whether the discovery rule is available to extend the governing statute of limitations on the claims of IRO and IRT against the accountant-defendants for negligence. The “discovery rule” generally provides that a cause of action accrues for purposes of the governing statute of limitations at the time when the plaintiff discovers or, in the exercise of reasonable care, should have discovered the complained of injury. See Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St. 3d 111, 5 OBR 247, 449 N.E. 2d 438; Skid-more & Hall v. Rottman (1983), 5 Ohio St. 3d 210, 5 OBR 453, 450 N.E. 2d 684. We find that the discovery rule is not available to claims of professional negligence brought against accountants.

R.C. 2305.091 provides a general limitations period of four years for tort actions not specifically covered by other sections of the Ohio Revised Code. See Mahalsky v. Salem Tool Co. (C.A. 6, 1972), 461 F. 2d 581, 585. General tort claims, including those for negligence, are governed by R.C. 2305.09(D). Richard v. Staehle (1980), 70 Ohio App. 2d 93, 24 O.O. 3d 121, 434 N.E. 2d 1379. Likewise, general claims of professional negligence which are outside the ambit of R.C. 2305.102 and 2305.113 are also governed by the four-year limitations period in R.C. 2305.09. See id.

Ohio courts have consistently interpreted R.C. 2305.11(A) restrictively and have refused to extend the statute to include professional malpractice claims which are neither considered specifically by the terms of the statute nor traditionally included under the common-law definition of “malprac[180]*180tice.”4 See, e.g., Hocking Conservancy Dist. v. Dodson-Lindblom Assoc. (1980), 62 Ohio St. 2d 195, 16 O.O. 3d 217, 404 N.E. 2d 164 (professional engineer); see, also, Lombard v. Medical Center (1982), 69 Ohio St. 2d 471, 23 O.O. 3d 410, 433 N.E. 2d 162 (nurses and laboratory technicians); Neilsen v. Barberton Citizens Hospital (1982), 4 Ohio App. 3d 18, 4 OBR 39, 446 N.E. 2d 209 (nurse); Reese v. K-Mart Corp. (1981), 3 Ohio App. 3d 123, 3 OBR 140, 443 N.E. 2d 1391 (pharmacist). Accountants are neither included specifically by the terms of R.C. 2305.11 nor are they traditionally considered professionals subject to malpractice claims at common law. Thus, R.C. 2305.11 does not govern claims brought against accountants for alleged professional misconduct.

This court has found that the two-year statute of limitations contained in R.C. 2305.10 governs claims of bodily injury resulting from the alleged negligence of health-care professionals other than those expressly included in R.C. 2305.11. See Whitt v. Columbus Cooperative (1980), 64 Ohio St. 2d 355, 18 O.O. 3d 512, 415 N.E. 2d 985; Richardson v. Doe (1964), 176 Ohio St. 370, 27 O.O. 2d 345, 199 N.E. 2d 878. We have not extended the statute to include general negligence claims. Thus, R.C. 2305.10 is not applicable to claims of negligence against accountants.

We find that claims of accountant negligence are governed by the four-year statute of limitations for general negligence claims found in R.C. 2305.09(D), not by the two-year period for bodily injury or injury to personal property set forth in R.C. 2305.10, or by the one-year limitations period for professional malpractice claims in R.C. 2305.11(A). See Holsman Neon & Electric Sign Co. v. Kohn (1986), 34 Ohio App. 3d 53, 516 N.E. 2d 1284; Richard v. Staehle, supra.

This court has determined that, in some circumstances, a discovery rule is appropriate for calculating when a cause of action accrues for purposes of defining a limitations period. Within the parameters of expressly defined circumstances, the discovery rule is applicable to claims brought under R.C. 2305.09, 2305.10 and 2305.11(A). Depending on the claim and the applicable statute, the date of discovery may toll the running of the governing statute of limitations until the plaintiff discovers or, in the exercise of reasonable care, should have discovered the complained-of injury.

Malpractice claims brought under R.C. 2305.11(A) “shall be brought within one year after the cause of action accrued.” However, the statute does not expressly consider the time when such a cause of action accrues; and, consequently, the matter has been relegated to determination by the Ohio judiciary.

In Oliver v. Kaiser Community Health Found., supra, this court determined that the discovery rule was applicable to medical malpractice claims brought under R.C. 2305.11(A). See, also, Hershberger v. Akron City Hospital (1987), 34 Ohio St. 3d 1, 516 N.E. 2d 204 (explaining Oliver, supra, and its progeny); Frysinger v. Leech (1987), 32 Ohio St. 3d 38, 512 N.E. 2d 337 (explaining and modifying Oliver, supra). [181]*181This court has likewise determined that the discovery rule is applicable to claims in legal malpractice brought under R.C. 2305.11(A). Skidmore & Hall v. Rottman, supra; see, also, Zimmie v. Calfee, Halter & Griswold (1989), 43 Ohio St. 3d 54, 538 N.E. 2d 398.

The General Assembly has incorporated a discovery rule into the terms of R.C. 2305.10, which provides that an action for bodily injury or injury to personal property shall be brought within two years after the cause of action arose. Effective June 12,1980, the terms of the statute expressly included a discovery rule for claims of bodily injury caused by exposure to asbestos or to chromium. (138 Ohio Laws, Part II, 3412.) In O’Stricker v. Jim Walter Corp. (1983), 4 Ohio St. 3d 84, 4 OBR 335, 447 N.E. 2d 727, this court expanded the discovery rule incorporated into R.C. 2305.10 to include general claims of bodily injury, when the claimed injury does not manifest itself immediately. The General Assembly has further amended R.C. 2305.10 to extend the terms of its discovery rule to claims of bodily injury caused by exposure to certain specified chemicals and drugs. See R.C. 2305.10, as amended August 26,1982 and May 31, 1984. (139 Ohio Laws, Part I, 866, 867, and 140 Ohio Laws, Part I, 1767, 1768.)

The discovery rules adopted by this court and by the General Assembly for bodily injury claims brought under R.C. 2305.10, and the discovery rules determined in Oliver, supra, and Skidmore, supra, for medical and attorney malpractice claims arising under R.C. 2305.11(A), are not available to negligence claims brought under R.C. 2305.09(D). However, R.C. 2305.09(D) expressly includes its own limited discovery rule:

“If the action is for trespassing under ground or injury to mines, or for the wrongful taking of personal property, the causes thereof shall not accrue until the wrongdoer is discovered; nor, if it is for fraud, until the fraud is discovered.”

While expressly providing a discovery rule for certain actions arising under R.C. 2305.09, no such rule was extended to general negligence claims. The General Assembly’s failure to include general negligence claims under the discovery rule set out in R.C. 2305.09 argues strongly that it was not the legislature’s intent to apply the discovery rule to such claims. See Kirsheman v. Paulin

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Investors REIT One v. Jacobs, 546 N.E.2d 206, 46 Ohio St. 3d 176, 1989 Ohio LEXIS 277 (Ohio 1989).

546 N.E.2d 206 (Investors REIT One v. Jacobs) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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