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Cameron v. State, AK Power Authority, and Ebasco Services (12/20/91), 822 P 2d 1362
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
KARL B. CAMERON, )
) Supreme Court Nos. S-3474/S-3510
Appellant and )
) Trial Court No.
) 3AN-86-2997 Civil
STATE OF ALASKA, ALASKA ) O P I N I O N
POWER AUTHORITY, INC., )
and EBASCO SERVICES, INC., )
Appellees and ) [No. 3789 - December 20, 1991]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Rene J. Gonzalez,
Appearances: William J. Soule, Law
Office of William J. Soule, Anchorage, for
Appellant and Cross-Appellee. Elliott T.
Dennis, Pletcher, Weinig, Lottridge & Moser,
Anchorage, for Appellees and Cross-
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
COMPTON, Justice, concurring.
Karl B. Cameron appeals a judgment entered on statute
of limitations grounds in favor of the State of Alaska, Alaska
Power Authority, Inc., and Ebasco Services, Inc. (hereinafter
"the State") and the award of costs to the State. We affirm.
The State cross-appeals the trial court's determination in limine
to prohibit Cameron's former wife from testifying concerning "any
acts, words or conduct which occurred during the marriage."
Because we have affirmed the dismissal of Cameron's claim, this
issue is moot.
From 1965 through 1983, Cameron worked as a miner
digging tunnels. From late 1982 until September 1983, Cameron
worked in tunnels excavated as part of the Terror Lake
Hydroelectric Project in Kodiak. On four days in February 1983,
Cameron was exposed to particularly heavy concentrations of rock
dust, diesel exhaust, and dynamite-blasting by-products. During
this heavy exposure, he had difficulty breathing. Cameron claims
that there was continuous poor air quality in the tunnels while
he worked on the Terror Lake Project. In October or November of
1983, Cameron first started having chronic difficulty in
breathing. Cameron, who had suffered a back injury on the job
and was not working at this time, attributed this difficulty to
being out of shape and perhaps the cold weather.
Through February 1984, Cameron had "experienced a lot
of problems with breathing,"and his condition grew progressively
worse. On February 27, 1984, when his condition had become "real
severe,"he went to see Dr. Norman J. Wilder, a pulmonary disease
specialist. At that time, Cameron attributed his breathing
problems to the working conditions in the tunnels at the Terror
Lake Project. Cameron, in filling out the history portion of a
"Physician's Initial Report of Work Injury or Occupational
Disease"form, responded to the question "Workman's Statement of
Cause of Injury or Illness"as follows: "Powder Smoke from
Rolling Rock Blast That Was Vented Through T.B.M. Heading." He
also stated to Dr. Wilder that he thought his condition was
caused by exposure to blasting fumes and rock dust in the
In a deposition, Dr. Wilder stated:
Initially I found evidence to suggest
bronchospasm, a respiratory distress I
thought was probably asthma, and questioned a
relationship to prior exposures . . . . I
could not be sure at the time whether that
tunnel experience is what led directly to his
wheezing, led directly to his asthma or not
. . . .
(Emphasis added.) It is not clear whether Cameron actually asked
Dr. Wilder whether the exposure caused his breathing difficulties
or if in fact anything was said about the subject.2 In any case,
Dr. Wilder indicated that at such an early point he would not
have given a definitive response if Cameron had directly asked
him if a causal relationship existed.
On March 7, 1984, Cameron learned from Dr. Wilder that
he had asthma. Cameron had no further contact with Dr. Wilder
until December 1984, at which time he was "back with severe
wheezing." On January 18, 1985, Cameron completed a notice of
injury to the State initiating a workers' compensation claim for
his asthma condition.
Although the severity of his illness was at least
partially masked by continuous treatment with steroids, Cameron's
condition worsened over time. On May 7, 1985, Dr. Wilder stated
in a letter requested by Cameron that, "I feel there is more
evidence to suggest Mr. Cameron's breathing difficulties [are]
indeed a direct result of occupational exposure, [than] to take
the opposite standpoint and say that he was destined to develop
asthma anyway . . . ." In deposition testimony, Dr. Wilder
indicated that he made the causal connection between Cameron's
exposure and his breathing difficulties for the first time in the
May 7 letter.
On March 14, 1986, Cameron filed his complaint pro se,3
ten months after Dr. Wilder's May 7 letter, and more than two
years after Cameron's initial visit to Dr. Wilder of February 27,
1984. The State moved for summary judgment seeking dismissal on
statute of limitations grounds on January 20, 1989. The superior
court granted the State's motion. The court determined that
March 7, 1984, the date Cameron was advised by Dr. Wilder that he
had a lung condition, was the date that Cameron's cause of action
accrued. Taking that date as the date when the statute of
limitations began to run, Cameron missed the filing deadline by
only one week.
At a hearing to determine costs, Cameron objected to
the taxation of certain costs on the grounds that they would not
have been incurred if the State had promptly moved for summary
judgment on statute of limitations grounds. Nevertheless, the
costs were awarded.
I. Did the Court Err in Granting Summary
Judgment on Statute of Limitations Grounds?
Both parties agree that AS 09.10.070 requires that
Cameron's claim be brought within two years of the accrual of his
cause of action. See Yurioff v. American Honda Motor Co., 803
P.2d 386, 388 (Alaska 1990); Silverton v. Marler, 389 P.2d 3, 5
(Alaska 1964). Under the traditional, and at one time absolute,4
"damages rule,"accrual of a cause of action is established at
the time of the injury. Pedersen v. Zielski, __ P.2d __, Op. No.
3785 at 6 (Alaska, Dec. 6, 1991); Russell v. Municipality of
Anchorage, 743 P.2d 372, 375 (Alaska 1987) (citing Gudenau & Co.
v. Sweeney Ins., 736 P.2d 763, 766-67 (Alaska 1987)).
The "discovery rule"developed as a means to mitigate
the harshness that can result from the damages rule's preclusion
of claims where the injury provided insufficient notice of the
cause of action to the plaintiff.5 To accomplish this, the
discovery rule balances two competing policies: the defendant's
right to repose; and, the basic fairness of insuring a
plaintiff's right to seek relief in court. Hanebuth, 694 P.2d at
146 (limitation period not intended to "be interpreted to reach
unjust and absurd results").
The statute of limitations protects the defendant by
limiting the time a plaintiff has to respond once the cause of
action accrues. As a statute of repose, the statute of
limitations "avoid[s] the injustice which may result from the
prosecution of stale claims . . . [and] protect[s] against the
difficulties caused by lost evidence, faded memories and
disappearing witnesses." Haakanson v. Wakefield Seafoods, Inc.,
600 P.2d 1087, 1090 (Alaska 1979) (quoting Byrne v. Ogle, 488
P.2d 716, 718 (Alaska 1971) and citing AS 09.10.010). The
statute of limitations provides the plaintiff with a reasonable
period in which to pursue and preserve the cause of action.
Until the plaintiff is on notice of the cause of action, the
plaintiff can neither pursue nor preserve it.
Mine Safety Appliances Co. v. Stiles, 756 P.2d 288
(Alaska 1988), sets forth an exposition of Alaska's discovery
[T]he statute of limitations does not
begin to run until the claimant discovers, or
reasonably should have discovered, the
existence of all elements essential to the
cause of action. Hanebuth v. Bell Helicopter
Int'l, 694 P.2d 143, 144 (Alaska 1984). Thus
we have said "the relevant inquiry is the
date when [the claimant] reasonably should
have known of the facts supporting her cause
of action." Russell, 743 P.2d at 375. See
also Demoski v. New, 737 P.2d 780, 788
(Alaska 1987); Hazen v. Municipality of
Anchorage, 718 P.2d 456, 464 (Alaska 1986).
We look to the date when a reasonable person
has enough information to alert that person
that he or she has a potential cause of
action or should begin an inquiry to protect
his or her rights. Sharrow v. Archer, 658
P.2d 1331, 1334 (Alaska 1983).
. . . .
. . . [When a person has] notice of
facts "`sufficient to prompt a person of
average prudence to inquire,' . . . [the
person] should be deemed to have notice of
all facts which reasonable inquiry would
disclose." Russell, 743 P.2d at 376 (quoting
Vigil v. Spokane County, 714 P.2d 692, 695
(Wash. App. 1986).
Id. at 291-92.
This is a formulation of the discovery rule that will
work for most, but not all cases. Most notably it mentions two
accrual dates: (1) the date when plaintiff reasonably should
have discovered the existence of all essential elements of the
cause of action; and, (2) the date when the plaintiff has
information which is sufficient to alert a reasonable person to
begin an inquiry to protect his rights. The dates are different,
since the point when the elements of a cause of action are
discovered may come after and as a result of a reasonable
inquiry. The inquiry, in turn, may be a time-consuming process.
In Mine Safety and in other cases,6 we held that the
inquiry notice date, rather than the date when the inquiry should
have produced knowledge of the elements of the cause of action,
was the date from which the statutory period began to run. Id.
at 292. The Mine Safety formulation of the discovery rule
therefore contains a seed which can produce unjust results. A
reasonable inquiry, once triggered by inquiry notice, may not
produce knowledge of the elements of a cause of action within the
statutory period, or it may produce knowledge of the elements of
a cause of action only relatively late in the statutory period.
Either way it is possible that a litigant may be deprived of his
right to bring a lawsuit before he has had a reasonable
opportunity to do so.
In the case of Palmer v. Borg-Warner Corp., ___ P.2d
___, Op. No. 3646 (Alaska, November 16, 1990), the argument was
made that even though inquiry notice may have existed, the period
of limitations should be tolled because the decedent's estate was
barred by the National Transportation Safety Board from
investigating the wreckage of the aircraft in which decedent was
killed for some ten months after the accident. We held that the
cause of action accrued on the inquiry notice date and that
tolling was not required because the estate had a reasonable time
for investigation after the release of the wreckage and before
the statutory period ran. Id. at 12. We stated that if there
had not been a reasonable time to investigate, the limitations
period would be tolled:
We similarly reject the Palmer
estate's argument that the statute must be
tolled because it had no "legal access" to
the wreckage while the NTSB was conducting
its investigation and that this fact
necessarily requires the limitations period
to be tolled. The limitations period runs
from the date of inquiry notice.
Inaccessibility would persuade us to toll the
limitations period where the claimant does
not have a reasonable time in which to
investigate and file his cause of
action. . . .
In this case, however, it cannot be
said that the Palmer estate did not have a
"reasonable opportunity" to bring suit
against Borg-Warner within two years from the
date Mrs. Palmer learned of the accident.
Even assuming that the NTSB investigation
precluded the estate's own investigation
efforts, the estate still had fourteen months
after the NTSB released the wreckage to
conduct its own investigation into the cause
of the crash before the limitations period
Palmer, Op. No. 3646 at 10-11 (footnotes omitted).
Taking Palmer and Mine Safety together, it seems
accurate to express our discovery rule as follows:
(1) a cause of action accrues when a person discovers,
or reasonably should have discovered, the existence of all
elements essential to the cause of action;
(2) a person reasonably should know of his cause of
action when he has sufficient information to prompt an inquiry
into the cause of action, if all of the essential elements of the
cause of action may reasonably be discovered within the statutory
period at a point when a reasonable time remains within which to
In another recent case, Pedersen v. Zielski, __ P.2d
__, Op. No. 3785 (Alaska, Dec. 6, 1991), we addressed another
aspect of the Mine Safety exposition of the discovery rule.
Pedersen was on inquiry notice and conducted an investigation in
order to attempt to discover the cause of his paralysis. We
focused on the language that he "should be deemed to have notice
of all facts which reasonable inquiry would disclose." Id. at 9
(quoting Mine Safety, 756 P.2d at 292); Welch, 805 P.2d at 982.
If reasonable inquiry would have disclosed the cause of his
paralysis within two years after inquiry notice then Pedersen was
barred. His inquiry, however, did not produce such knowledge
within the two-year period. We considered the question whether
"reasonable inquiry"in the Mine Safety formulation required us
to ask whether a reasonable inquiry in the abstract would have
produced knowledge of the cause of action within two years or
whether the relevant question was whether Pedersen's inquiry was
reasonable. We made the choice of the latter, stating:
There is a difference between
asking whether a reasonable inquiry would
have produced knowledge, and whether a
plaintiff's particular inquiry -- which was
unproductive -- was reasonable. Putting the
question in the abstract tends to place the
focus on an ideal inquiry, whereas in reality
there may have been several possible
reasonable courses of inquiry, some of which
would be productive and some of which would
not be productive. Where the plaintiff
actually attempts an inquiry, the fairer
question in our view, is to ask whether his
inquiry was reasonable. Where there is no
attempt, however, there is no choice but to
put the question in the abstract.
Pedersen, Op. No. 3785 at 9-10. We held in Pedersen that there
was a question of fact as to whether Pedersen's inquiry was
reasonable. If his inquiry was found to be reasonable, we stated
the statute of limitations should not
accrue until he received actual knowledge of
the cause of his paralysis or he received new
information which would prompt a reasonable
person to inquire further. If his inquiry
was not reasonable, the cause of action
should accrue at the inquiry notice point
unless a reasonable inquiry would not have
been productive within the statutory period.
Id. at 10.
Thus, Pedersen, when combined with Palmer, added a
third part to our discovery rule: where a person makes a
reasonable inquiry which does not reveal the elements of the
cause of action within the statutory period at a point where
there remains a reasonable time within which to file suit, the
limitations period is tolled until a reasonable person discovers
actual knowledge of, or would again be prompted to inquire into,
the cause of action. Pedersen, Op. No. 3785 at 10.
Applying these principles to the facts of this case, we
agree with the trial court that Cameron was on inquiry notice at
least by March 7, 1984. As the trial court, quoting Mine Safety,
756 P.2d at 291, said:
A reasonable person, after learning he
had a medically documented lung condition
which he believed was related to having been
exposed to blasting fumes would have been
alerted that he had ". . . a potential cause
of action or should begin an inquiry to
protect his rights."
Cameron made an inquiry by consulting Dr. Wilder on
February 27, 1984; the inquiry was not productive in that it did
not reveal the cause of Cameron's condition until May 7, 1985.
Since the original inquiry notice may be fixed no later than
March 7, 1984, Cameron had some ten months after learning of the
cause of his disability within which to file suit before the
statute of limitations ran.
As we have noted, where an injured person reasonably
should discover all the essential elements of his claim, only at
a point relatively late in the statutory period, when the person
"does not have a reasonable time in which to investigate and file
his cause of action"the limitations period is tolled. Palmer,
Op. No. 3646 at 10. The same rule logically should apply where,
as here, the injured person makes an inquiry which ultimately
reveals the elements of the cause of action within the statutory
The question, therefore, in this case is whether ten
months was a reasonable time for Cameron to investigate and file
his claim. In our view, this question must necessarily be
answered in the affirmative.7 When Cameron, on May 7, 1985,
received knowledge of the cause of his condition he had already
filed a workers' compensation claim. No reason is suggested
indicating that a civil action for damages could not have been
properly prepared and filed within the ensuing ten months.
II. Did the Trial Court Abuse its Discretion
by Not Limiting the State's Costs to Those
Which Would Have Been Incurred if the State
had Filed an Earlier Motion for Summary
According to Cameron, the State waited an unreasonable
length of time before filing a motion for summary judgment and
thereby incurred many unnecessary expenses which the superior
court ultimately assessed against Cameron.
Cameron claims that "[a]n attorney can easily tell by
reference to a calendar whether or not the complaint has been
filed within the limits imposed by [law]." As this case shows,
unfortunately this is not always true. There has been
uncertainty as to the application of the discovery rule and it is
often necessary to conduct discovery to determine whether a claim
is barred. The trial court did not abuse its discretion by
refusing to limit allowable costs.
COMPTON, Justice, concurring.
I agree that the judgment of the superior court should
be affirmed. However, the affirmance should be on a straight
forward application of Mine Safety Appliances Co. v. Stiles, 756
P.2d 288 (Alaska 1988).
In Greater Area Inc. v. Bookman, 657 P.2d 828, 829
(Alaska 1982), we adopted the so called "discovery rule" to
determine when a cause of action accrues:
According to the best formulation of
[the discovery] rule, the statute of
limitations does not begin to run until the
client discovers, or reasonably should
discover, the existence of all the elements
of his cause of action.
Mine Safety, a products liability case, reaffirmed this
"best formulation" of the discovery rule. It begins our
analysis: "The statute of limitations does not begin to run until
the claimant discovers, or reasonably should have discovered, the
existence of all elements essential to the cause of action."
Mine Safety, 756 P.2d. at 291 (citing Hanebuth v. Bell Helicopter
Int'l, 694 P.2d 143, 144 (Alaska 1984)). The language of
Hanebuth ("the existence of all elements essential to the cause
of action") is slightly different from that in Bookman ("the
existence of all the elements of [the] cause of action"), but the
difference is irrelevant; the phrases have the same meaning.
Mine Safety resulted in the following conclusion:
It is uncontroverted that Stiles knew he
was hit in the head while wearing a safety
helmet designed to protect against such
blows. The helmet cracked and the suspension
clips broke on impact. Parker [Drilling
Company] investigated the accident and the
result of that investigation was available to
Stiles shortly after the accident. In
addition, Parker's safety officer kept the
helmet for two years where it was available
for inspection. These facts were available
to Stiles the day of the accident. (Footnote
omitted). We conclude that under these
circumstances a reasonable person would have
notice of facts "`sufficient to prompt a
person of average prudence to inquire,' and
thus [the person] should be deemed to have
notice of all facts which reasonable inquiry
would disclose."(Citations omitted).
Mine Safety, 756 P.2d at 292. The Bookman rule was applied:
Stiles knew all of the elements of his cause of action, which
should have prompted him to inquire.
No case following Bookman has ever explicitly declared
that the discovery rule it adopted has been modified in any
respect. Instead, we are now told that the discovery rule
formulated in Mine Safety contemplates two separately
identifiable accrual dates.8 I do not agree. As I analyze Mine
Safety and other cases dating back to Bookman, discovery of all
the elements of (or "all elements essential to") the cause of
action provides a claimant with knowledge sufficient to prompt a
person of average prudence to inquire. At this point we deem the
claimant to have notice of all facts which a reasonable inquiry
would disclose. Mine Safety, 756 P.2d at 292 (citing Russell v.
Municipality of Anchorage, 743 P.2d 372, 376 (Alaska 1987)).9
Furthermore, we are told that Pedersen v. Zielski,
P.2d , Op. No. 3785 (Alaska, December 6, 1991), "added a third
part to our discovery rule. . . ." Slip Op. at 11. I suggest
Pedersen did not add a third part to our discovery rule; it added
an additional accrual rule.
If the presentation of the law here proffered by the
court is correct, the "best formulation"of the discovery rule we
identified in Bookman is now but one of several separate rules
used to determine when a cause of action accrues.
At a medical appointment on February 27, 1984, Cameron
"attributed his breathing problems to his working conditions in
the tunnels at the Terror Lake Project and he knew he had
breathing problems." He knew by then that he had been damaged.
He knew also the identity of the potential defendants. He had
complained to others about working conditions in the tunnel. In
short, by February 27 Cameron had sufficient information to alert
a reasonable person to the fact that "he . . . [had] a potential
cause of action," that is, he had discovered all elements
essential to his cause of action. This information was
sufficient to prompt a prudent person to then inquire into facts
which would tend to establish a sufficient basis to support
filing a cause of action. A reasonable inquiry by
Cameron would have disclosed facts tending to establish a
sufficient basis to support filing a cause of action, within the
time permitted by the statute of limitations to bring the action.
Indeed, significant additional facts were disclosed by May 7,
1985, as Dr. Wilder's letter to Cameron's attorney establishes.
It is not necessary that a potential plaintiff understand the
technical nature of his or her claim, or the precise facts that
will be introduced at a trial, to have a sufficient basis for
filing suit. See, e.g., Mine Safety, 756 P.2d at 291; Sharrow v.
Archer, 658 P.2d 1331, 1334 (Alaska 1983). Cameron's cause of
action accrued on February 27, 1984, more than two years before
he filed suit. His action is barred by AS 09.10.070.
The legislature has determined reasonable time limits
within which actions are to be brought. It is within the
province of this court to establish rules to determine when the
time limits commence. It is not within the province of this
court to determine whether the time limits are reasonable. Thus
it is neither our right nor our responsibility to determine
"whether ten months was a reasonable time for Cameron to
investigate and file his claim." The substantial dicta in
the court's opinion can serve only to further confuse an issue
already complicated by Palmer v. Borg-Warner Corp., P.2d ,
Op. No. 3646 (Alaska, November 16, 1990), and Pedersen v.
Zielski. These newly evolving accrual rules, added to the long
standing Bookman rule, will reduce to guesswork the determination
of when an action must be commenced, a result which does not
serve any affected interests.
1 On reviewing the grant of summary judgment, we draw
inferences of fact from proof offered by the parties in favor of
the non-moving party, and against the movant. Nizinski v. Golden
Valley Elec. Ass'n, 509 P.2d 280, 283 (Alaska 1973).
2 The questioning of Dr. Wilder leaves this point unclear:
Q: Would you have told Mr.
Cameron that you didn't think that he was
correct in his opinion as to the cause of
[his breathing problems]?
. . . .
A: I would have been
neutral . . . .
(Emphasis added.) The use of the subjunctive suggests that Dr.
Wilder never told Cameron his opinion. On the other hand, in an
April 4, 1986 letter to Cameron's attorney, Mr. Flanigan, Dr.
Wilder stated that "[p]rior to [May or August of 1985], as my
notes reflect, I did not make any direct correlations with the
patient, though I'm quite sure I would have discussed the
possibility that [the tunnel fume exposures] might have been the
cause of [Cameron's] difficulties." Thus, it is not clear what
Dr. Wilder actually said to Cameron about the cause of his
3 The complaint alleged that the State was negligent in
failing to provide Cameron with a safe workplace and strictly
liable "because of the ultra-hazardous nature of the blasting
activity that generated the fumes and gases that caused his
4 See, e.g., Austin v. Fulton Ins. Co., 444 P.2d 536, 539
(Alaska 1968); Prosser and Keeton on Torts, 30, at 165 (W.
Keeton 5th ed. 1984).
5 See, e.g., Hanebuth v. Bell Helicopter Int'l, 694 P.2d 143
(Alaska 1984). Alaska adopted the discovery rule in Greater Area
Inc. v. Bookman, 657 P.2d 828, 829-30 (Alaska 1982). Cf. Van
Horn Lodge, Inc. v. White, 627 P.2d 641, 646 (Alaska 1981)
(suggesting adoption of discovery rule).
Bookman, a legal malpractice case, relied heavily on the
California Supreme Court's decision in Neel v. Magana, Olney,
Levy, Cathcart & Gelfand, 491 P.2d 421 (Cal. 1971). Neel
distinguished professional malpractice actions from "ordinary
tort and contract actions," because of the problems in
discovering the action and the relationship of trust between the
professional and the client or patient. Bookman, 657 P.2d at 830
(quoting Neel, 491 P.2d at 428). Hanebuth held that the
discovery rule applies outside the professional malpractice
areas. 694 P.2d at 144 (citing Stoleson v. United States, 629
F.2d 1265, 1269 (7th Cir. 1980)). Today, rather than
characterize the discovery rule as a mitigating, pseudo-equitable
doctrine, it is more appropriate to view it as specifying the
meaning of "accrual"under the statute. The damages rule may be
seen as simply a specific application of the discovery rule.
That is, when an obvious injury occurs, a reasonable person is
generally on notice of all the elements of the claim.
6 E.g., State, Dep't of Corrections v. Welch, 805 P.2d 979
(Alaska 1991); Yurioff, 803 P.2d at 389-90; Russell, 743 P.2d at
7 "Where . . . there exist uncontroverted facts that
determine when a reasonable person should have been on inquiry
notice, `we can resolve the question as a matter of law.'"
Palmer, Op. No. 3646 at 5 (quoting Mine Safety, 756 P.2d at 292).
8 The "other cases"the court cites in support of its
assertion that we have applied an inquiry notice date other than
the date the claimant has `knowledge of the elements of the cause
of action' do not all stand up on close examination. In State v.
Welch, 805 P.2d 979, 981-82 (Alaska 1991), we stated:
The law to be applied to this case is
the so called "discovery rule,"which holds
that a statute of limitations does not begin
to run until a plaintiff "discovers, or
reasonably should discover, the existence of
all the elements of his cause of action."
. . . .
Viewing the evidence in the light most
favorable to the parents, we conclude that
reasonable minds could not differ on whether
the parents were on inquiry notice prior to
January 12, 1987. On the basis of the
uncontroverted facts, a reasonable person
should have known of a potential claim
against the state substantially prior to that
date. Therefore, suit filed January 12,
1989, is barred by AS 09.55.580(a).
(Footnote omitted, emphasis added).
As I read Welch, discovery of `all the elements' and
knowledge of a `potential claim' are used interchangeably.
However, it is clear to me that the court interprets `potential
cause of action' as meaning something different than `all the
elements.' I do not agree, as I have previously stated.
Pedersen v. Zielski, P.2d , Op. No. 3785 (Alaska, December
6, 1991) (Compton, Justice, dissenting).
Yurioff v. American Honda Motor Co., 803 P.2d 386, 389-
90 (Alaska 1990), presents a similar equating of terms:
Under the rule in Stiles, the statute
began to run when Yurioff reasonably should
have begun an inquiry to protect his rights.
It is enough that Yurioff knew that the ATV
malfunctioned and an accident ensued; it is
not necessary that he have actual knowledge
or evidence that the throttle was the cause
of the malfunction. By his own testimony,
Yurioff was aware of both the malfunction and
his injury on the day of the accident. We
hold that the discovery rule did not toll the
statute while Yurioff was bedridden.
Yurioff had knowledge of the elements essential to a
products liability cause of action on the date of injury. His
products liability case was dismissed.
Russell v. Municipality of Anchorage, 743 P.2d 372
(Alaska 1987), does not make reference to protecting one's
rights. Rather, after quoting a discussion of our adoption of
the discovery rule from Gudenau & Co., Inc. v. Sweeney Insurance,
Inc., 736 P.2d 763, 766-67 (Alaska 1987), we concluded that "the
superior court correctly determined that Russell should have
known of the existence of the facts alleged as comprising her
cause of action in 1983." Id. at 375. We went on to remark that
"[o]rdinarily summary judgment would be inappropriate and a
remand to the superior court would be required. (Footnote
omitted). If, however, there are uncontroverted facts that
indicate when Russell reasonably should have known that she had a
cause of action, then this court can dispose of the question as a
matter of law." Id. at 375-76.
9 In Mine Safety, 756 P.2d at 291 (Alaska 1988), we remarked
that "[w]e look to the date when a reasonable person has enough
information to alert that person that he or she has a potential
cause of action or should begin an inquiry to protect his or her
rights." The language comes from Sharrow v. Archer, 658 P.2d
1331, 1334 and n.5 (Alaska 1983):
The fact that the Sharrows had not been
informed of the "wrong"by the "wrongdoer"or
were not convinced that there was "proof" of
the wrong or aware of "sworn testimony and
documentary evidence"substantiating it does
not establish that a reasonable person would
be unaware of the wrong or the wrongdoing.\5
5. In Tobacco & Allied Stocks, Inc.
v. Transamerica Corp., 244 F.2d 902 (3d Cir.
1957), the court rejected a claim by
plaintiffs that laches should not attach
until the district court in a prior case had
issued its opinion finding fraud: "To have
such knowledge of fraud as will begin the
operation of laches, however, a legal
adjudication of the question of fraud is
hardly necessary. It is sufficient if facts
come to plaintiff's attention that would
warrant the inferences which reasonable men
would draw, and that would put reasonable men
on inquiry to protect their rights." Id. at
To say that a person should begin an inquiry to protect
his or her rights is not different from saying that a person is
aware of "the wrong or the wrongdoing." The date a claimant is
alerted to the fact that "he or she has a potential cause of
action" and the date a claimant must "begin an inquiry to
protect his or her rights"are not different dates.