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22 Fla. L. Weekly S578a

NOT FINAL VERSION OF OPINION
Subsequent Changes at 24 Fla. L. Weekly S557a

THE FULTON COUNTY ADMINISTRATOR, as Administrator of the Estate of LITA McCLINTON SULLIVAN, Petitioner, v. JAMES VINCENT SULLIVAN, Respondent. Supreme Court of Florida. Wrongful death -- Limitation of actions -- Tolling -- Fraudulent concealment of the identity of a tortfeasor does not toll the statute of limitations -- Wrongful death action against defendant was barred by statute of limitations where defendant initially denied involvement in murder of decedent, but confessed participation in crime after two-year limitations period for wrongful death actions had run -- Civil procedure -- Appeals -- Appellate court could properly remand case for entry of judgment in defendant's favor where defendant had moved for directed verdict at close of plaintiff's case and at close of all evidence, and, after verdict, moved for new trial but failed to renew motion for directed verdict

THE FULTON COUNTY ADMINISTRATOR, as Administrator of the Estate of LITA McCLINTON SULLIVAN, Petitioner, v. JAMES VINCENT SULLIVAN, Respondent. Supreme Court of Florida. Case No. 87,110. September 25, 1997. Application for Review of the Decision of the District Court of Appeal - Certified Great Public Importance. Fourth District - Case No. 94-2137 (Palm Beach County). Counsel: Richard A. Kupfer, John B. Moores and David W. Boone of Richard A. Kupfer, P.A., West Palm Beach, for Petitioner. Randall Nordlund and Joseph E. Altschul of Gilbride, Heller & Brown, P.A., Miami, for Respondent. Roy D. Wasson, Miami, for Academy of Florida Trial Lawyers, Amicus Curiae.

(WELLS, J.) We have for review a decision certifying the following question to be of great public importance:

ARE STATUTES OF LIMITATIONS FOR CIVIL ACTIONS TOLLED BY THE FRAUDULENT CONCEALMENT OF THE IDENTITY OF THE DEFENDANT?

Sullivan v. Fulton County Adm'r, 662 So. 2d 706 (Fla. 4th DCA 1995). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Because we find that section 95.051, Florida Statutes (1985), sets forth the limited circumstances in which the statute of limitations may be tolled and that none of these exceptions include the fraudulent concealment of the identity of the tortfeasor, we answer the certified question in the negative. Albeit for different reasons than expressed below, we approve the district court's decision to the extent that it reversed the judgment against Sullivan.

On January 16, 1987, while respondent James Sullivan and his wife Lita Sullivan were going through divorce proceedings, Ms. Sullivan was killed in Atlanta, Georgia. Throughout the initial police investigation, respondent denied any involvement in the crime and proposed several alternative theories as to who may have killed her. It was not until several years later, in 1990, that respondent confessed his participation in the crime. Based on this information, on December 23, 1991, this wrongful death action was filed against respondent in Florida.

In answering the complaint, respondent raised the affirmative defense that the statute of limitations barred this claim. Petitioner Fulton County (Georgia) Administrator, as administrator of Ms. Sullivan's estate, argued that respondent's fraudulent concealment of his participation in the murder tolled the statutory limitation period. Twice during the trial, once at the close of the plaintiff's case and once at the close of all of the evidence,1 respondent moved for a directed verdict, claiming among other things that the statute of limitations barred the lawsuit. The trial court denied both motions. After a jury trial, the jury awarded petitioner $3.5 million in compensatory damages and $500,000 in punitive damages. Sullivan then timely moved for a new trial and four months later moved for relief from the judgment under Florida Rule of Civil Procedure 1.540. The motion for new trial was based upon a claimed error in failing to enforce the statute of limitations. The trial court denied these motions. However, Sullivan did not move to have the verdict set aside and judgment entered in his favor in accordance with the motion for directed verdict made at the close of all of the evidence as required by Florida Rule of Civil Procedure 1.480.

On appeal, the Fourth District reversed the verdict and remanded the cause for entry of judgment in respondent's favor. Sullivan. The district court found that Florida courts have recognized that fraudulent concealment of a cause of action will toll the statute of limitations. Id. at 707. However, the court felt constrained to reverse the trial court and follow its own precedent in International Brotherhood of Carpenters & Joiners, Local 1765 v. United Ass'n of Journeymen & Apprentices, 341 So. 2d 1005 (Fla. 4th DCA 1976), cert. denied, 357 So. 2d 186 (Fla. 1978), in which the district court held that fraudulent concealment of the identity of a tortfeasor does not fit within the judicially created tolling exception of concealment of a cause of action. Sullivan, 662 So. 2d at 708. The district court below questioned the propriety of this result in light of both recent case law from other jurisdictions holding that fraudulent concealment of one's identity should be treated like fraudulent concealment of a cause of action and the fairness of protecting a tortfeasor from defending a stale claim when the tortfeasor is responsible for the delay. Id. at 708-09. As well, the district court concluded that even though fraudulent concealment was only included as a tolling provision in section 95.11(4)(b), Florida Statutes (1995), the medical malpractice statute of limitations, the doctrine could broadly apply to other causes of actions. Id. at 709-10 (citing Proctor v. Schomberg, 63 So. 2d 68 (Fla. 1953)). Given its discomfort with the result coupled with the fact that this Court had not yet addressed the issue, the district court certified the foregoing question, asking us to clarify whether fraudulent concealment of the identity of the defendant in a civil action will toll the statute of limitations. Sullivan, 662 So. 2d at 710. We agree with the logic and reasoning of Judge Klein's opinion that enforcing the statute of limitations under the facts of this case requires an unjust result.

Nevertheless, we are compelled to answer the certified question in the negative because we find that by enacting section 95.051 in 1975, the legislature specifically set forth the limited circumstances which will toll the statute of limitations. Since fraudulent concealment of the identity of the tortfeasor is not an enumerated circumstance, we find that in this case, to be timely, the wrongful death action should have been filed within two years of the death of the decedent. We are bound by the legislature's enactment, and therefore we approve the decision in this case which reverses the judgment against respondent.

We begin our analysis by tracing the evolution of the fraudulent-concealment doctrine as announced by this Court and the legislature's statements on tolling provisions for the statute of limitations. The fraudulent-concealment doctrine was first recognized by this Court in Proctor v. Schomberg, 63 So. 2d 68 (Fla. 1953). In Proctor, we found that a person who wrongfully conceals material facts and prevents the discovery of either the wrong or the fact that a cause of action has accrued against the person should not be able to take advantage of the person's wrong and assert the statute of limitations as a bar to the action. Id. at 71-72 (quoting 34 Am. Jur. Limitation of Actions, § 231 (1941)). Under this rule, the statute of limitations would begin to run from the date the action was discovered or from the date on which, through the exercise of ordinary diligence, it might have been discovered. Id. at 72. At the time of our decision in Proctor, the legislature had only expressly set forth limited circumstances which would toll the statute of limitations, and these circumstances did not address any tolling provisions or exclude the possibility of judicially recognized tolling provisions for fraudulent concealment. See §§ 95.05, 95.07, Fla. Stat. (1949).

We continued to recognize the viability of this court-fashioned rule in Nardone v. Reynolds, 333 So. 2d 25 (Fla. 1976). In Nardone, a medical malpractice action, the defendants answered the complaint by asserting the affirmative defense that the four-year statute of limitations barred the bringing of a cause of action in 1971 for a wrong which occurred in 1965. Id. at 32. The federal district court granted the defendant's motion for summary judgment on this basis, and on appeal, the United States Court of Appeals for the Fifth Circuit certified to this Court three questions, one of which specifically addressed the tolling of the statute for fraudulent concealment. Id. at 28. In answering these questions in Nardone, we reiterated the rule that defendant's successful fraudulent concealment of a cause of action which prevented the plaintiff from discovering the cause of action would toll the statute of limitations until the facts of such concealment could be discovered through reasonable diligence. Id. at 37. Similar to Proctor, our analysis of the statutes in Nardone was not affected by any legislative statement on the tolling of the statute of limitations for fraudulent concealment.2

However, in 1974, the legislature enacted section 95.051, Florida Statutes, see ch. 74-382, § 4, Laws of Fla., in which it enumerated several bases for tolling the statute of limitations, including defendant's use of a false name or concealment in Florida to avoid service of process. See § 95.051(1)(b)-(c), Fla. Stat. (1975). Notably absent from this list was fraudulent concealment of the identity of the actual tortfeasor. While section 95.11(4)(b)3 provided a tolling provision for fraudulent concealment of the discovery of the plaintiff's injury in medical malpractice actions,4 there was no similar tolling provision for wrongful death causes of action. Compare § 95.11(4)(b), Fla. Stat. (1975), with § 95.11(4)(d), Fla. Stat. (1975). Moreover, in section 95.051(2), the legislature stated, ``No disability or other reason shall toll the running of any statute of limitations except those specified in this section, . . . the Florida Probate Code, or the Florida Guardianship Law.'' This exclusivity provision is applicable to this action. See § 95.051(2), Fla. Stat. (1985).

Thus, the issue presented by the certified question is the continued viability of our court-made tolling provision for fraudulent concealment in the face of section 95.051, Florida Statutes (1985). When interpreting a statute, legislative intent is the polestar by which we are guided. See Parker v. State, 406 So. 2d 1089 (Fla. 1981). This intent is gleaned primarily from the plain language of the statute. See Aetna Cas. & Sur. Co. v. Huntington Nat'l Bank, 609 So. 2d 1315 (Fla. 1992). When construing statutes of limitations, generally courts will not write in exceptions when the legislature has refused to do so. Carey v. Beyer, 75 So. 2d 217 (Fla. 1954).

Given these rules of construction, we find the plain language of section 95.051 does not provide for the tolling of the statute of limitations in cases in which the tortfeasor fraudulently conceals his or her identity. The statute specifically precludes application of any tolling provision not specifically provided for by the legislature. See § 95.051(2), Fla. Stat. (1985). In the face of such clear legislative direction, we are compelled to hold that fraudulent concealment of the identity of a tortfeasor in actions such as the one before us today will not toll the statute of limitations. See Carey; Dobbs v. Sea Isle Hotel, 56 So. 2d 341, 342 (Fla. 1952) (``We cannot write into the law any other exception, nor can we create by judicial fiat a reason, or reasons, for tolling the statute since the legislature dealt with such topic and thereby foreclosed judicial enlargement thereof.''); Swartzman v. Harlan, 535 So. 2d 605 (Fla. 2d DCA 1988) (finding that under section 95.051(2), Florida Statutes (1987), the court was not able to create an exception to toll the statute of limitations not specifically enumerated by the legislature); In re Southeast Banking Corp., 855 F. Supp. 353 (S.D. Fla. 1994), aff'd, 69 F.3d 1539 (1995) (same).

As a result, we find that in this case the statute of limitations was not tolled by respondent's fraudulent concealment. In Florida, a cause of action for wrongful death accrues on the date of death, see St. Francis Hosp. v. Thompson, 159 Fla. 453, 31 So. 2d 710 (1947), and has a two-year statute of limitations period. See § 95.11(4)(d), Fla. Stat. (1985). The statute of limitations accordingly began to run in this case on January 16, 1987. Since this action was brought outside of this period and petitioner did not demonstrate any reason recognized in Florida for tolling the statute, the district court properly reversed the judgment against respondent. However, the district court based its conclusion on the scope of the fraudulent concealment doctrine rather than the statute of limitations. We therefore disapprove of the reasoning of the district court on this point.

However, as previously stated, we do agree with Judge Klein that the statute of limitations requires an unjust result in cases such as the one presented here. We therefore recommend that the legislature examine this issue and should it agree, enact an amendment to the statute to avoid such an unfair result.

Finally, we address a procedural issue raised by petitioner.5 Petitioner contends that the district court could not direct the trial court to enter judgment in favor of respondent because respondent did not renew his motion for directed verdict strictly in accord with Florida Rule of Civil Procedure 1.480. Petitioner points to the federal courts' interpretation of Federal Rule of Civil Procedure 50(b), see Johnson v. New York, New Haven & Hartford R.R., 344 U.S. 48 (1952); Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212 (1947), and argues that we should follow these decisions and hold that a party who fails to renew a motion for directed verdict and only files a motion for new trial is not entitled to a judgment entered in a party's favor. Rather, with the case in such a posture, petitioner argues that an appellate court may only grant the party a new trial. We do not agree; instead, we agree with Justice Frankfurter's dissent in Johnson that such an application of the rule does not facilitate the proper administration of justice.6

Respondent's motion for new trial was based upon his statutory limitation defense. It is correct that technically, in addition to the motion for new trial, respondent should have filed a motion renewing his earlier motion for directed verdict in compliance with Florida Rule of Civil Procedure 1.480. However, when a motion for new trial encompasses the same legal basis upon which a motion for directed verdict was made during the trial and at the close of all the evidence, our courts should look to the substance of the motion and rule on the basis of the legal issue raised in the motion. Therefore, we reject petitioner's claim that the district court, after reversing the final judgment, was powerless to direct the entry of judgment in respondent's favor.

Accordingly, we answer the certified question in the negative and for the reasons stated in this opinion, approve the district court's decision to reverse the judgment against respondent.

It is so ordered. (OVERTON and HARDING, JJ., concur. GRIMES, J., concurs with an opinion, in which OVERTON, J., concurs. ANSTEAD, J., dissents with an opinion, in which KOGAN, C.J. and SHAW, J., concurs.)

-- -- -- --

(GRIMES, J., concurring.) I cannot agree that a motion for new trial meets the requirements of the motion contemplated by Florida Rule of Civil Procedure 1.480(b). Rule 1.480(b), which tracked the language of Federal Rule 50(b) until it was slightly reworded in 1991, reads as follows:

(b) Reservation of Decision on Motion. When a motion for a directed verdict made at the close of all of the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Within 10 days after the return of a verdict, a party who has timely moved for a directed verdict may serve a motion to set aside the verdict and any judgment entered thereon and to enter judgment in accordance with the motion for a directed verdict. If a verdict was not returned, a party who has timely moved for a directed verdict may serve a motion for judgment in accordance with the motion for a directed verdict within 10 days after discharge of the jury.

A motion for new trial is entirely different from a motion to have a verdict and any judgment entered thereon set aside and to have judgment entered in accordance with a motion for directed verdict. Even if both motions are premised upon the same grounds, the relief they seek is entirely different.

I cannot quarrel with the substance of Justice Frankfurter's dissent in Johnson v. New York, New Haven & Hartford R.R., 344 U.S. 48 (1952), quoted in footnote 6 of the majority opinion. However, that case was entirely different from the instant case. In Johnson, the defendant filed not only a motion for new trial but also filed a motion to set aside the verdict. What Justice Frankfurter was complaining about was that the majority opinion did not give effect to the motion to set aside the verdict because it did not also contain a request to have a judgment entered in accordance with the motion for directed verdict. In the instant case, there was no motion to set aside the verdict. The motion for new trial was clearly outside the scope of the motion required by rule 1.480(b).

Notwithstanding, I reluctantly concur in the decision because Sullivan raised a statute of limitations argument in his motion for new trial. Based upon the majority's indisputably correct analysis of the limitations issue, this would mean that Johnson's motion for new trial would have to be granted. Thereafter, upon a motion for summary judgment, the trial judge would be bound to enter a judgment for Sullivan based upon the rationale of this opinion. Because the Fulton County Administrator could not get around the statute of limitations defense, there would be no point in requiring the parties to undergo such useless activity. (OVERTON, J., concurs.)

-- -- -- --

(ANSTEAD, J., dissenting.) The majority holds that by enacting section 95.051 the legislature has silently done away with this Court's fraudulent concealment doctrine in all areas except medical malpractice. However, a legitimate question not addressed is why this action has taken over twenty years to be acknowledged, if indeed it is so apparent. Common sense would seem to dictate that the enactment of a statute of limitations would not automatically ``abolish'' the sound and judicially erected equitable doctrine of fraudulent concealment as an affirmative avoidance to that technical defense. In my view, the medical malpractice statutory scheme simply reflects a legislative adoption of the soundness and fairness of the discovery rule, and its corollary, the fraudulent concealment doctrine, qualified by reasonable limitations on the time for commencing such suits. Logically, inclusion of a provision for fraudulent concealment within the medical malpractice statute indicates the legislature's affirmance of the rationale of our decision recognizing the doctrine in Proctor.7

The majority opinion also fails to note the case law outside of the medical malpractice arena where the doctrine of fraudulent concealment has been employed. As noted in Proctor, numerous examples of the application of the doctrine include:

[A]ctions by clients for the misappropriation of moneys collected, . . . for the conversion of personal property, by an owner for the recovery of lost or stolen property, to recover for the unlawful underground mining of ore belonging to another, against the liability of promoters of a corporation to account to the corporation for illegal acts or profits, by a chattel mortgagee for the fraudulent concealment and removal of the property, by a shipper to recover for unjust discrimination by a common carrier, and in other particular actions.

63 So. 2d at 72 (quoting 34 Am.Jur. Limitations of Actions § 231 (1941)). Only recently, the First District recognized and reaffirmed the viability of the doctrine of fraudulent concealment in S.A.P. v. State Department of Health & Rehabilitative Services, 22 Fla. L. Weekly D2095 (Fla. 1st DCA Sept. 3, 1997).

In S.A.P., the appellant alleged that when she was a four-year-old foster care child supervised by HRS, she suffered physical abuse and was subjected to malnourishment due to HRS's negligent failure to supervise and monitor her foster care placement and to take her away from her foster care parent. Moreover, the appellant claimed that HRS actively concealed the facts concerning the negligence and that her assigned case worker falsified records so it appeared that she had conducted monthly supervision visits with appellant and her sister. Id. at D2095-96. The trial court dismissed appellant's complaint with prejudice based on the running of the statute of limitations found in section 768.28(12), Florida Statutes (1993).

On appeal, the First District recognized the general rule that ``fraudulent concealment constitutes an implied exception to the statute of limitations, postponing the commencement of the running of the statute until discovery of the concealment by the owner of the cause of action.'' Id. at D2096. Therefore, ``[t]o establish fraudulent concealment sufficient to toll the statute, the plaintiff must show both successful concealment of the cause of action and a fraudulent means to achieve that concealment.'' Id. (citing Nardone v. Reynolds, 333 So. 2d 25, 37 (Fla. 1976)). The First District concluded that appellant had met her burden in stating a cause of action for negligence; that appellant had properly invoked the equitable principle of fraudulent concealment; and that HRS's statute of limitations defense did not ``affirmatively appear on the face of the complaint.'' S.A.P., 22 Fla. L. Weekly at D2096.

Further support for the proposition that the medical malpractice statute of limitations' mention of fraudulent concealment was not intended to grant an additional right is found in Berisford v. Jack Eckerd Corp., 667 So. 2d 809 (Fla. 4th DCA 1995). In Berisford, the plaintiff alleged that his deceased wife's liver failure was caused by a pharmacy which had refilled prescriptions without authorization from her physician. He further contended that the pharmacy engaged in fraudulent concealment during discovery by presenting a certification of authorization for each refill.

On appeal, the Fourth District noted that although there is ``no specific reference to fraudulent concealment in any subsection of the provisions concerning statutes of limitations'' other than medical malpractice, the doctrine still applies to a wide variety of cases. Id. at 810. Relying on our decision in University of Miami v. Bogorff, 583 So. 2d 1000, 1003 (Fla. 1991), the district court concluded that the reference to fraud, concealment, or intentional misrepresentation within the medical malpractice statute of limitations was intended to create a statute of repose to limit the ability of plaintiffs to maintain an action even if the fraud went undiscovered. 667 So. 2d at 810-11.

Similarly, in Vargas v. Glades General Hospital, 566 So. 2d 282 (Fla. 4th DCA 1990), the Fourth District held that even though the waiver of sovereign immunity should be strictly construed, fraudulent concealment would toll the running of the statute of limitations contained in section 768.28 despite the lack of a specific statutory provision for fraudulent concealment. Id. at 284. As the district court observed:

[T]o disallow the doctrine of equitable tolling of the statute of limitations for fraudulent concealment in cases of state agencies would defeat the legislative purpose of allowing citizens who have been injured by tortious state conduct to recover damages.

Fraudulent concealment as an exception to the statute of limitations has as its philosophy that ``courts will not protect defendants who are directly responsible for the delays of filing because of their own willful acts.'' Nardone [v. Reynolds, 333 So. 2d 25, 36 (Fla. 1976)]. It is a doctrine to prevent the court from participating in the fraud of the defendant. Such a doctrine applies to all who come to the court for redress. And consistent with the provision of the waiver statute to make the state liable ``to the same extent as a private individual under like circumstances . . .'' the state is treated in the same manner as a private individual in applying the equitable doctrine of tolling. For these reasons, we hold that the statute of limitations contained in section 768.28(11), Florida Statutes, may be tolled by fraudulent concealment of the facts necessary to put the injured party on notice of the negligent act or the resulting injury.

Id. at 285 (emphasis added). The Fourth District also noted that ``statutes should . . . be construed in light of [their] manifest purpose.'' Id. at 284. An analysis of the policy behind the medical malpractice statute of limitations and the tolling provision statute demonstrates that the legislature is aware of competing purposes and has fashioned a statutory scheme which balances these purposes. The purpose of the medical malpractice statute of limitations and statute of repose is to reduce the cost of malpractice insurance premiums, Carr v. Broward County, 541 So. 2d 92, 94 (Fla. 1989), not provide a safe haven for wrongdoers who fraudulently conceal their identities. See Goodlet v. Steckler, 586 So. 2d 74, 77 (Fla. 2d DCA 1991) (Lehan, J., concurring) (acknowledging that in some medical malpractice actions the circumstances may be analyzed ``from the standpoint of the doctrine of fraudulent concealment under which the statute of limitations may be tolled, or its triggering prevented, by the concealment of defendant's involvement with an incident of malpractice'').

Conversely, the logical purpose behind the statute of limitations tolling provision is to facilitate the administration of justice. There has been no suggestion that fraud or concealment is more rampant in the medical field than elsewhere, thus necessitating an exclusion from the general rule of section 95.051, or that medical malpractice plaintiffs are in some way more deserving of favored treatment than other types of plaintiffs.8 Accordingly, given the Wrongful Death Act's remedial purpose,9 the continuing vitality of the fraudulent concealment doctrine should not be in question merely because the legislature did not specifically include it in the list of tolling provisions. Therefore, proper interpretation of the medical malpractice statute implicitly recognizes the continuing viability of the fraudulent concealment doctrine.

As in Florida, the Texas Wrongful Death Act is purely a statutory creation. However, that has not prevented Texas from deciding that the equitable principle of fraudulent concealment still applies to toll its statutorily created wrongful death act. See, e.g., Cox v. Upjohn Co., 913 S.W.2d 225 (Tex. App. 1995); Allen v. American Petrofina, Inc., 837 S.W.2d 415 (Tex. App. 1992), rev'd in part on other grounds, 887 S.W.2d 829 (Tex. 1994); Borderlon v. Peck, 661 S.W.2d 907, 909 (Tex. 1983) (holding that Texas' medical malpractice statute did not abolish ``fraudulent concealment as an equitable estoppel to the affirmative defense of limitations'').

In Cox, the court was faced with interpreting Texas' wrongful death statute10 which has an absolute two-year bar. Like the majority's analysis, the appellees contended that the inclusion of a specific fraud provision for tolling a statute of limitations in a related chapter11 meant the legislature must have considered the doctrine and found it inappropriate to include in the wrongful death statute. The Texas Court of Appeals disagreed, instead finding:

Unlike the discovery rule, the doctrine of fraudulent concealment does not establish when a cause of action accrues. Rather, it is an equitable doctrine whereby a ``defendant who conceals his wrongful conduct, either by failing to disclose it when under a duty to disclose or by lying about his conduct, is estopped to assert the statute of limitations.''

Cox, 913 S.W.2d at 230 (quoting Arabian Shield Dev. Co. v. Hunt, 808 S.W.2d 577, 584 (Tex. App. 1991) (alteration in original). The Cox court also extensively surveyed the status of fraudulent concealment in wrongful death actions among various jurisdictions. That review revealed that some states have statutory provisions providing for extended statutes of limitations where fraudulent concealment is involved;12 others have less defined accrual rules in their wrongful death statutes and have determined that if the facts support fraudulent concealment, it may be applied to estop the defendant from asserting the statute of limitations;13 and still others, such as Florida, have defined causes of action for wrongful death as accruing at the death of the injured party14 and provide that fraudulent concealment may toll or extend the statute of limitations.15 A minority of jurisdictions have rejected these approaches.16

Had this case been brought in Georgia, the situs of Lita Sullivan's murder, the plaintiff would unquestionably have been able to set aside Sullivan's defense. Section 9-3-96, Georgia Code Annotated (1982), provides that where there is ``fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff's discovery of the fraud.'' This section was made applicable to the five-year statute of repose by Hill v. Fordham, 367 S.E.2d 128, 132 (Ga. Ct. App. 1988) (reasoning that ``[t]he sun never sets on fraud''). Thus, Georgia is among the majority of other jurisdictions having found that fraudulent concealment will toll the statute of limitations for wrongful death.

CONCLUSION

In all the cases above, the common element is that deception by the defendant will not be tolerated. The courts, either through a Berisford analysis, estoppel, or ``exception'' rationales have prevented the use of the statute of limitations as a technical defense to affirmative wrongdoing. While the majority feels constrained to apply a plain meaning analysis, such an interpretation is clearly inappropriate in this case as it leads to an illogical and unconscionable result. Moreover, that type of ``plain meaning'' analysis is inconsistent with our historical method of statutory interpretation. See Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984) (reaffirming that ``a literal interpretation of the language of a statute need not be given when to do so would lead to an unreasonable or ridiculous conclusion'').

Fraudulent concealment is defined as ``[t]he employment of artifice planned to prevent inquiry or escape investigation and to mislead or hinder the acquisition of information disclosing a right of action; acts relied on must be of an affirmative character and fraudulent.'' Black's Law Dictionary at 662 (6th ed. 1990). Equitable is defined as ``[j]ust; conformable to the principles of justice and right.'' Id. at 537. Throughout American legal history, courts have consistently used their inherent equitable powers in employing the doctrine of fraudulent concealment to defeat a party's attempt to frustrate justice through a technical defense.17 Obviously, courts and juries must apply this doctrine cautiously and good reason must be clearly established to avoid a statute of limitations defense. However, in certain situations the equitable doctrine of fraudulent concealment should be available despite the laudable public policy rationale underlying statutes of limitation.18 This case exemplifies, writ large, why that doctrine must remain a viable tool through which a court administers justice. (KOGAN, C.J. and SHAW, J., concur.)

-- -- -- --

1In this motion, respondent renewed his earlier motion for directed verdict.

2The applicable statute of limitations in Nardone was the 1971 statute. Id. at 32.

3Section 95.11(4)(b), Florida Statues (1975), provided in pertinent part:

In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the 4-year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred.

4The legislature has since provided two tolling provisions in the medical malpractice statute concerning the presuit investigation period. See §§ 766.104(2), 766.106(4), Fla. Stat. (1995); Tanner v. Hartog, 618 So. 2d 177 (Fla. 1993).

5Given our jurisdiction on the basis of the certified question, we have jurisdiction over all of the issues raised in this case. Feller v. State, 637 So. 2d 911, 914 (Fla. 1994).

6Justice Frankfurter wrote:

The Federal Rules of Civil Procedure are the product of the progress of centuries from the medieval court-room contest -- a thinly disguised version of trial by combat -- to modern litigation. ``Procedure is the means; full, equal and exact enforcement of substantive law is the end.'' Pound, The Etiquette of Justice, 3 Proceedings Neb. St. Bar Assn. 231 (1909). This basic consideration underlies the Rules; with it in mind we construed Rule 50(b) in the Montgomery Ward case.

It has been said of the great Baron Parke: ``His fault was an almost superstitious reverence for the dark technicalities of special pleading, and the reforms introduced by the Common Law Procedure Acts of 1854 and 1855 occasioned his resignation.'' Sir James Parke, 15 D.N.B. 226

Baron Parke despaired prematurely. If he had waited another hundred years this Court today would have vindicated his belief that judges must be imprisoned in technicalities of their own devising, that obedience to lifeless formality is the way to justice.

Johnson, 344 U.S. at 62 (Frankfurter, J., dissenting).

7The legislative history of section 95.11(4)(b) does not provide guidance on this issue as no staff analyses have been retained by the Florida State Archives.

8In the 1996 session, the legislature saw fit to include within the medical malpractice statute of limitations a provision creating an exemption from bar under both the statute of limitations and the statute of repose for a minor until he reaches his eighth birthday. See § 95.11(4)(b), Fla. Stat. (Supp. 1996).

9See § 768.17, Fla. Stat. (1995) (``It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.27 are remedial and shall be liberally construed.''); Stern v. Miller, 348 So. 2d 303, 308 (Fla. 1977) (recognizing the that the Wrongful Death Act ``is remedial in nature and is to be construed liberally'').

10Tex. Civ. Prac. & Rem. Code Ann. § 16.003(b) (West 1986).

11Tex. Civ. Prac. & Rem. Code Ann. § 16.009 (West 1986) states:

(a) A claimant must bring suit for damages for a claim listed in Subsection (b) against a person who constructs or repairs an improvement to real property not later than 10 years after the substantial completion of the improvement in an action arising out of a defective or unsafe condition of the real property or a deficiency in the construction or repair of the improvement.

. . . .

(e) This section does not bar an action: . . .

(3) based on wilful misconduct or fraudulent concealment in connection with the performance of the construction or repair.

12See, e.g., Geisz v. Greater Baltimore Med. Ctr., 545 A.2d 658 (Md. 1988); Fowles v. Lingos, 569 N.E.2d 416 (Mass. App. Ct. 1991); Smile v. Lawson, 435 S.W.2d 325 (Mo. 1968) (en banc); Howell v. Murphy, 844 S.W.2d 42 (Mo. Ct. App. 1992, Krueger v. St. Joseph's Hosp., 305 N.W.2d 18 (N.D. 1981); Merrill v. Reville, 380 A.2d 96 (Vt. 1977).

13See, e.g., Baker v. Beech Aircraft Corp., 114 Cal. Rptr. 171 (Ct. App. 1974); Molineux v. Reed, 532 A.2d 792 (Pa. 1987).

14See Walker v. Beech Aircraft Corp., 320 So. 2d 418 (Fla. 3d DCA 1975) (cause of action runs from date of death not discovery of cause of death)

15See, e.g., Palmer v. Borg-Warner Corp., 838 P.2d 1243 (Alaska 1992); Anson v. American Motors Corp., 747 P.2d 581 (Ariz. Ct. App. 1987).; First Interstate Bank v. Piper Aircraft Corp., 744 P.2d 1197 (Colo. 1987); DeCosse v. Armstrong Cork Co., 319 N.W.2d 45 (Minn. 1982); Muller v. Thaut, 430 N.W.2d 884 (Neb. 1988); Miller v. Romero, 413 S.E.2d 178 (W. Va. 1991).

16See, e.g., Perry v. Staver, 473 P.2d 380, 383 (N.M. Ct. App. 1970) (Wrongful death cause of action is a statutorily created right. ``Estoppel cannot be successfully asserted to lengthen the existence of such a statutorily created right of recovery.''); Shover v. Cordis Corp., 574 N.E.2d 457 (Ohio 1991). Ohio courts have consistently held that fraudulent concealment will not enlarge the time for bringing an action under the statute of limitations. Fraud may only toll the statute of limitations where fraud is the gist of the action. In Shover, the court did indicate that the plaintiff could bring an action for fraud which had a longer statute of limitations than found in the wrongful death statute.

17In much the same way, a court may always refuse to enforce a grossly unfair contract under the equitable doctrine of unconscionability. See § U.C.C. § 2-302 cmts. 1-2 (1987).

18As stated by the United States Supreme Court in Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-49 (1943):

Statutes of limitation, like the equitable doctrine of laches, in their conclusive effects are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.

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