Bobbie Bonham v. Glenn Weinraub

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:09-cv-00358-jct. Copies to all parties and the district court/agency. [998531129] [10-1430]

Bobbie Bonham v. Glenn Weinraub

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Case: 10-1430

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Date Filed: 02/24/2011

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-1430

BOBBIE G. BONHAM, Plaintiff - Appellant, v. GLENN M. WEINRAUB, D.P.M., Defendant - Appellee.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, Senior District Judge. (7:09-cv-00358-jct)

Submitted:

January 10, 2011

Decided:

February 24, 2011

Before KING and Circuit Judge.

SHEDD,

Circuit

Judges,

and

HAMILTON,

Senior

Vacated and remanded by unpublished per curiam opinion.

James J. O'Keeffe, IV, Monica T. Monday, Lauren E. Davis, GENTRY, LOCKE, RAKES & MOORE, LLP, Roanoke, Virginia, for Appellant. Joseph M. Rainsbury, John T. Jessee, Nancy F. Reynolds, LECLAIRRYAN, A PROFESSIONAL CORPORATION, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Bobbie Bonham appeals the district court's order

dismissing her civil action against Dr. Glenn M. Weinraub under Fed. R. Civ. P. 12(b)(6). On appeal, Bonham contends the

district court erred in finding that her action was barred by the statute of limitations. A Rule 12(b)(6) We agree. motion to dismiss tests the legal

sufficiency of the complaint. 298, 302 (4th Cir. 2008). "judge must accept as

Giarratano v. Johnson, 521 F.3d

In deciding a motion to dismiss, the all of the factual allegations

true

contained in the complaint." 94 (2007). This court

Erickson v. Pardus, 551 U.S. 89, de novo a district court's

reviews

decision to grant a motion to dismiss pursuant to Rule 12(b)(6). Laurel Sand & Gravel, Inc. v. Wilson, 519 F.3d 156, 161 (4th Cir. 2008). In a suit based on diversity of citizenship, the

substantive law of the forum state is controlling.

Erie R.R.

Co. v. Tompkins, 304 U.S. 64, 78 (1938); Colgan Air, Inc. v. Raytheon Aircraft state Co., 407 F.3d of 270, 275 (4th are Cir. 2007).

Similarly,

statutes

limitations

considered

substantive law; therefore, if "the statute of limitations would bar recovery in a State court, a federal court ought not to afford recovery." (1945). 2 Guaranty Trust Co. v. York, 326 U.S. 99, 110

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"Unless otherwise provided in this section or by other statute, every action for personal injuries, whatever the theory of recovery, and every action for damages resulting from fraud, shall be brought within two years after the cause of action accrues." Va. Code Ann. § 8.01-243A (LexisNexis 2007).

In every action for which a limitation period is prescribed, the right of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person . . . except . . . where . . . otherwise provided under § 8.01-233, subsection C of § 8.01-245, §§ 8.01-249, 8.01-250 or other statute. Va. Code Ann. § 8.01-230 (LexisNexis 2007). Section 8.01-249

provides that a cause of action for fraud accrues "when such fraud . . . is discovered or by the exercise of due diligence reasonably should have been discovered." In dismissing Bonham's action, the district court

found that, in order to "avoid the personal injury statute of limitation," Bonham characterized Dr. Weinraub's tortious

actions as fraudulent.

The district court concluded that this

characterization had no bearing on the applicable statute of limitations, applying the reasoning that "an action to recover for personal injuries is, in essence, a personal injury action, and regardless of whether it is based upon an alleged breach of an implied warranty or upon an alleged tort, the limitations statute governing actions for personal injuries is controlling."

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Friedman v. Peoples Serv. Drug Stores, Inc., 160 S.E.2d 563, 565 (Va. 1968). We conclude the district court reached an incorrect conclusion. Here, the parties agreed that the limitations

period in question is two years, as prescribed in § 8.01-243A. The parties differed, however, as to when Bonham's cause of

action accrued. and adopted by

Under the framework proposed by the Defendants the district court, § 8.01-230 applied,

establishing that Bonham's cause of action accrued on the date of the injury. the date of In this instance, this would be June 9, 2005, surgery. However, that Bonham cause argues of that

Bonham's

§ 8.01-249

applies,

establishing

her

action

accrued on the date she discovered or reasonably should have discovered Dr. Weinraub's alleged fraud. in October 2007, when she consulted This date was sometime doctors about her

other

condition. Virginia courts determine the applicable statute of

limitations by reference to "the object of the litigation and the substance of the complaint, not the form in which the

litigation is filed." Sigma Fraternity, the 587

Kappa Sigma Fraternity, Inc. v. Kappa S.E.2d we 701, 707 that (Va. the 2003). district After court

reviewing

record,

conclude

erroneously characterized Bonham's action as one for negligence and therefore incorrectly applied the accrual rules of § 8.014

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230.

In

her

complaint,

Bonham

properly

alleged

facts

and

arguments giving rise to a cause of action for fraud, on which her reliance resulted in unnecessary surgery and additional pain and suffering. City of Richmond, Va. v. Madison Management

Group, 918 F.2d 438, 447 (4th Cir. 1990) (stating elements of fraud). the Both the object of the litigation and the substance of indicated that Bonham's action asserted Dr.

complaint

Weinraub's intentional fraud, not an accidental misdiagnosis or negligent treatment. Nor can we agree that Bonham's assertion

of fraud is a mere pleading artifice to evade the statute of limitation accrual rules that would attend a cause of action for negligence. By pursuing a theory of fraud rather than

negligence, Bonham shoulders a different, and more challenging, burden of proof. But that is the litigant's prerogative, which

the district court should honor, at least at the pleading stage of the litigation. * Accordingly, we hold that the district court

erred in categorizing her action as one for negligence, rather than fraud. The fraud action district alleged the court by also erred would of the in holding be that any

Bonham

still

considered Malpractice

malpractice
*

under

definitions

Medical

We have no occasion to consider whether Bonham's complaint can or will survive an appropriate summary judgment motion or other motion by the Defendant to seek judgment prior to trial.

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Act,

Virginia

Code.

§ 8.01-581.1,

and

would

therefore

be

governed by the statute of limitations provisions of § 8.01243C. As noted above, the two-year statute of limitations was Rather, the issue is whether to apply the

not in dispute.

general personal injury accrual rules provided by § 8.01-230, or the specific fraud accrual rule found in § 8.01-249. By its

plain language, § 8.01-230 is limited by application of § 8.01249 in cases of fraud. Applying § 8.01-249, Bonham's cause of

action accrued on the date that Dr. Weinraub's alleged fraud was discovered, in October 2007. Thus, her complaint, filed in

August 2009, was filed within the two-year limitations period. Accordingly, we vacate the judgment of the district court and remand for further proceedings consistent with this opinion. legal before We dispense with oral argument because the facts and are and adequately argument expressed not in the the materials decisional

contentions the court

will

aid

process. VACATED AND REMANDED

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