PJC Business

PJC 105.5

F RAUD AND N EGLIGENT M ISREPRESENTATION

fraudulent concealment, limitations are tolled until the fraud is discovered or could have been discovered with reasonable diligence. Valdez , 465 S.W.3d at 229. In cases implicating the discovery rule, accrual of the cause of action is deferred “until the injury was or could have been reasonably discovered.” Valdez , 465 S.W.3d at 229. The discovery rule “applies on a categorical basis to injuries that are both inherently undis coverable and objectively verifiable.” Valdez , 465 S.W.3d at 229. The supreme court has not addressed the appropriate jury submission for the dis covery rule in nonfraud cases. Its opinions discussing the elements of the discovery rule have used varying language. The supreme court has most often defined the dis covery rule as deferring the accrual of a cause of action until the plaintiff knew or should have known of its injury and that it was likely caused by the wrongful acts of another. See KPMG Peat Marwick , 988 S.W.2d at 749; Childs v. Haussecker , 974 S.W.2d 31, 37, 40 (Tex. 1998). If the discovery rule is submitted in terms of the plain tiff’s discovery of a wrongfully caused injury, it may be necessary to define “injury” and “wrongful acts”; otherwise, the jury might be impermissibly allowed to speculate on the meaning of those terms. Because Texas courts have not consistently defined the elements of fraudulent concealment for limitations purposes, the Committee expresses no opinion on the appropriate submission.

[PJC 105.6 is reserved for expansion.]

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