opinion: Edwin Dean VEST, Plaintiff-Appellant, v. Sterling BOSSARD, Hans Chamberlain, Ira Schoppmann, James Nelson and John Does One to One Hundred, Defendants-Appellees.
  No. 81-2148.
  United States Court of Appeals, Tenth Circuit.
  Feb. 18, 1983.
  John Walsh, Salt Lake City, Utah, for plaintiff-appellant.
  Allan L. Larson of Snow, Christensen & Martineau, Salt Lake City, Utah, for all defendants-appellees.
  Nelson L. Hayes of Richards, Brandt, Miller & Nelson, Salt Lake City, Utah, for defendants-appellees Chamberlain and Schoppmann (P. Keith Nelson and Donald J. Purser, Richards, Brandt, Miller & Nelson, Salt Lake City, Utah, for defendantsappellees Chamberlain & Schoppmann, and David L. Wilkinson, Atty. Gen., and Franklyn B. Matheson, Asst. Atty. Gen., Salt Lake City, Utah, for defendants-appellees Sterling Bossard and James Nelson, on the briefs).
  Before DOYLE, McKAY and LOGAN, Circuit Judges.
  WILLIAM E. DOYLE, Circuit Judge.
  The problem here is, as we know, one in which the tolling or non-tolling of the statute of limitations is involved.
  Plaintiff was falsely charged with a heinous offense, sodomy. Vest, of course, knew that he had suffered an injury. He did not know that there had been a conspiracy and, of course, was unaware of the identity of the conspirators. Meanwhile the statute of limitations had run as of the time that the boy admitted the truth to plaintiff. But the conspiracy also included what might be called a cover-up in order to utilize the statute of limitations as a defense. The Utah cases which are here presented all recognize that where the party in question is unaware of the identity of the perpetrators or of the incident, the statute is tolled and an evidentiary hearing is in order for the purpose of ascertaining the true facts.
  The applicable statute is the Utah one § 78-12-1 which provides that “civil actions can be commenced only within the period prescribed in this chapter, after the cause of action shall have accrued, except where in special cases a different limitation is prescribed by statute.” § 78-12-25(2) provides “an action for relief not otherwise provided for by law must be commenced within four years.” The particular offense involving Vest is not covered expressly by any statute but the four year statute is regarded as a catch-all provision.
  One of the Utah cases deals with concealment of the accrual of the cause of action by the defendant. This is Myers v. McDonald, 635 P.2d 84. The issue in that case was whether the statute tolled in a wrongful death action in which the two year statute of limitations applied. In that case the plaintiffs were unaware of the facts and circumstances of the decedent’s death until after the statutory period. As in this case, the district court dismissed the complaint as barred by the statute of limitations. However, the Utah Supreme Court reversed that judgment, calling attention to the particular facts. The plaintiffs, husband and wife, were guardians of fourteen year old Bobbie Menzies, the wife’s brother. Bobbie failed to return home after meeting with some friends. Plaintiffs reported his disappearance to the police. Because he was a minor the police department listed him as a runaway rather than as a missing person. The latter status would have resulted in an automatic check of the local morgue. The plaintiffs made several contacts during the ensuing year with the police in order to determine the boy’s whereabouts. They also read newspaper articles concerning a November 26th, 1976 automobile accident in Salt Lake County in which a car collided with a large tree that resulted in the death of a mysterious passenger and identified by the driver of the vehicle only as Joey. This victim was described as being five feet eight inches tall, with brown hair and in his early twenties. Bobbie, however, was six feet two inches tall, blond and fourteen years of age. Plaintiffs did not identify Bobbie,as the victim at that time. Sometime after the disappearance of the boy the police detectives contacted the plaintiffs as part of a follow-up. In response to plaintiffs’ inquiries he told them that the mysterious accident victim had not yet been identified. Plaintiffs went to the morgue after that and identified the accident victim as their ward Bobbie. On October 29, 1979, almost three years after the fatal accident, but only three months after the identification of the body of their ward, plaintiffs brought the wrongful death action against the defendant driver of the accident vehicle alleging intoxication and/or wilful misconduct. The statute of limitations was interposed. The plaintiffs maintained that the cause of action should not accrue until discovery of the death inasmuch as they had been misled by the report that the decedent’s name was Joey; that they were thus discouraged from making any inquiry.
  The Utah Supreme Court outlined the policy of the statute as follows:
  The governing policy in this area, as declared by the United States Supreme Court, is that statutes of limitations “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.” In furtherance of that policy, the general rule is that a cause of action accrues upon the happening of the last event necessary to complete the cause of action. Under that rule, mere ignorance of the existence of a cause of action does not prevent running of the statute of limitations. 635 P.2d at 86. [citation omitted] [footnotes omitted]
  The court went on to say that:
  There are a number of exceptions to this general rule. In some enumerated areas of the law, our Legislature has adopted the discovery rule by statute so that the limitations period does not begin to run until the discovery of facts forming the basis of the cause of action. In other circumstances, where the statute of limitations would normally apply, this Court has held that proof of concealment or misleading by the defendant precludes the defendant from relying on the statute of limitations. Id. [footnotes omitted]
  The court said that this was the plaintiffs’ second theory in the case and further said that courts of some states have adopted this so-called discovery rule by judicial action in exceptional circumstances where the application of the general rule would be irrational or unjust. The court concluded “Those precedents point the way toward what we deem to be the appropriate decision in this case.” Id.
  The case was remanded and regarding remand the court said:
  If plaintiffs are unable to prove their allegations of due diligence at trial, this action would still be barred by the statute of limitations unless plaintiffs can prevail by proof of their alternate theory of concealment or misleading by defendant. All we hold here is that it was improper for the trial court to dismiss plaintiffs’ action on the pleadings on the basis of the statute of limitations. Id., at 87.
  The Myers v. McDonald case is very similar but not as extreme as the case at bar. Here the defendants are charged with entering into a conspiracy to hide the commission of the wrong against the plaintiff. That gives rise to a much more aggravated problem.
  In the Myers case the Utah Supreme Court very readily declared the law of that state as being that the statute is tolled where the plaintiffs, as guardians, alleged that they did not know of their ward’s death due to defendants’ erroneously reporting their ward’s name to the authorities.
  In the event that the plaintiffs would be able to prove due diligence, the policy against stale claims was said by the court to be outweighed by the unique circumstances of plaintiffs’ hardship inasmuch as plaintiffs could not file an action for damages or even initiate investigative efforts to determine the cause of the death of which they had no knowledge. In such circumstances, the court said, “the law would be in the untenable position of having created a remedy for plaintiffs and then barring them from exercising it before they had any practical opportunity to do so.” Id.
  Similarly in the Vest case the reasoning there would be that the factual question should be resolved in his favor due to his inability to determine whether he had any practical opportunity to bring an action or to vindicate his position in view of the express effort to hide what had happened until the statute had run so that the participants could utilize it inequitably and to their advantage.
  The Myers court cites the case of Vincent v. Salt Lake County, Utah, 583 P.2d 105 (Utah 1978) in support of its ruling that defendants cannot conceal material facts then find shelter behind a statute of limitations. In Vincent plaintiff knew that his garage was damaged by underground water but did not know what the water’s source was. The county had installed a drainage pipe before plaintiff owned the property. There was no easement record for that pipe and plaintiff did not discover it when he built his house. Both county employees and a superior who knew the pipe was there and had reason to know that its joints were unsealed told plaintiff that no county pipe could be causing the damage. That concealment caused the Utah Supreme Court to reverse the trial court’s ruling that the statute of limitations barred plaintiff’s action.
  Also cited in Myers is Rice v. Granite School District, 23 Utah 2d 22, 456 P.2d 159 (1969). There insurance adjusters led plaintiff to believe that she need not file a claim because defendant admitted liability and only damages needed to be settled. The Utah Supreme Court reversed the trial court’s summary judgment that plaintiff’s action was barred by the statute of limitations. It held that defendants cannot induce plaintiffs to delay filing claims and then assert the statute of limitations.
  During oral arguments in the Vest case, this court, by way of analogy, considered medical malpractice actions. It must be kept in mind that there is a distinct statute, § 78-14-4 U.C.A.1953, to which Utah courts refer in determining when a malpractice suit is barred.
  In a recent case, Howe v. McMaster, 621 P.2d 694 (Utah 1980), the Utah Supreme Court upheld the trial court’s ruling that § 78-14-4 barred plaintiff’s action. The court ruled that the statute of limitations was tolled where to the untutored understanding of the layman there was no apparent connection between treatment received and injuries that the treatment illegally caused. But in Howe, the statute ran from the time of treatment (a dental injection) because plaintiff, who was a nurse familiar with the effects of improperly administered injections, was capable of knowing about a connection. Her training prevented her from claiming that she could not know that her mouth injuries were caused by the dental injection until it was too late to file a case. But had she not been skilled and knowledgeable in this area the court would have held that the statute was tolled.
  The statute was held to have tolled in the case of Foil v. Ballinger, 601 P.2d 144 (Utah 1979). There the plaintiff, Foil, had no special training and consequently the court held that the social policy favoring protecting untutored patients outweighed the statute of limitation’s goal of preventing unfounded, late medical claims that impose costs on health care providers. The Foil court also ruled that the statute’s provision that it begins to run as soon as he has reason to know that he has been injured means that the plaintiff must know that he was injured and “that the injury was caused by negligent action.” 601 P.2d at 148, citing Christiansen v. Rees, 20 Utah 2d 199, 436 P.2d 435 (1968). The court said:
  Because of the nature of malpractice actions, and based on prior Utah law, we hold that the statute begins to run when an injured person knows or should know that he has suffered a legal injury. We base this holding on several grounds. In the health care field it is typically the case that there often is a great disparity in the knowledge of those who provide health care services and those who receive the services with respect to expected and unexpected side effects of given procedure, as well as the nature, degree, and extent of expected after effects. While the recipient may be aware of a disability or a dysfunction, there may be, to the untutored understanding of the average layman, no apparent connection between the treatment provided by a physician and the injury suffered. Even if there is, it may be passed off as an unavoidable side effect or a side effect that will pass with time. 601 P.2d at 147.
  The court also made a statement which is quite relevant here:
  Furthermore, to adopt a construction of § 78-14-4 that encourages a person who experiences an injury, dysfunction or ailment, and has no knowledge of its cause, to file a lawsuit against a health care provider to prevent a statute of limitations from running is not consistent with the unarguably sound proposition that unfounded claims should be strongly discouraged. One of the chief purposes of the Utah Health Care Malpractice Act was to prevent the filing of unjustified lawsuits against health care providers, with all the attendant costs, economic and otherwise, that such suits entail, (emphasis supplied)
  The court went on to say:
  It would also be imprudent to adopt a rule that might tempt some health care providers to fail to advise patients of mistakes that have been made and even to make efforts to suppress knowledge of such mistakes in the hope that the running of the statute of limitations would make a valid cause of action nonactionable. A rule that provides that the limitations period shall run from the date of the act or omission tends to foster that result. The law should foster a fulfillment of the duty to disclose so that proper remedial measures can be taken and damage ameliorated.
  It is true that the malpractice problem is a special one in Utah. The court condemns the tolling of the statute and expresses the policy reason that people who have inflicted an injury should not be permitted to cover up the injury so as to avoid a lawsuit. That, of course, is a situation which we find in the case at bar. In the present case it cannot be argued that the plaintiff was aware of the identity of the persons who perpetrated the injury upon him. Must his action accrue at the time that he suffers the injury under those circumstances, where there has been a very carefully plotted and planned injury inflicted and there has been a conspiracy to cover it up? True, he knew that he had been injured but he had no reason to know that he had a cause of action against the defendants. Unlike the nurse in Howe he had no experience that would cause him to connect his injury to defendants’ actions and he did not have any source of that injury. For him to file a lawsuit that he could not prove up as the trial court suggested would have been folly and certainly the law should not encourage that kind of activity, as the court in Foil noted.
  In conclusion the expedients suggested by the trial court, namely that the defendant file a lawsuit against the boy and then go on a fishing expedition, must be put to one side. The Utah cases and particularly Foil demand that there be a full and complete factual hearing and just and equitable decision. Surely this is the view which the Utah court would take in this case. It would hold that the plaintiff’s burdens, plus the fraud of the perpetrators, produced justification for tolling the statute. The evidence in the present record which suggests that Vest had knowledge of the conspiracy is at best thin and legally inadequate. Until the boy revealed the conspiracy explaining that he had been forced to maintain secrecy until the statute of limitations had run Vest did not have full knowledge. To be sure he had some suspicions but suspicions or existence of possibilities of defendant having factual knowledge is not enough to have the statute run in favor of the defendants. Judge Logan has quoted on page 1 of his opinion the statement that Vest made in his deposition. This reads as follows:
  Up to this time, I had 'suspicions of why they placed charges upon me in Cedar City. One was my running argument with Mayor Weckon concerning the loss of Glen Canyon power. I am a specialist in the area of ecology and energy sources, and I constantly was stating that the mayor should not be in the position he was in with the conflict between Cal Pac and the Glen Canyon Power. I had suspicions that that might be the reason. I was told that Judge Burns was his close friend, and I was also told that a very close friend of Judge Burns stated that only the Supreme Court could ever stop them from nailing me.
  This supports my suggestion that the information that Vest had at the early stages of this incident was inadequate to raise more than the suspicion that he mentions regarding the Mayor and Judge Burns being a friend of the Mayor. This falls short of being enough evidence to justify the running of the Limitations Statute.
  Finally, we call attention to the all important words of the Utah Constitution, Art. I, Sec. 11:
  “All courts shall be open, and every person, for an injury done to him in his person ... shall have remedy by due course of law, which shall be administered without denial ...”
  To dispose of the case in a summary manner is a plain violation of Mr. Vest’s rights. Judge McKay suggests that the trial court may once again grant summary judgment. With all respect, Judge McKay speaks of a pure question of fact. Whether the defendants concealed the facts cannot be determined in a summary judgment proceeding.
  The judgment is reversed and the cause is remanded for further proceedings.
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