Osterman v. Sears11/26/2003
commencement of an action upon:
(c) a liability created by statute other than:
(i) a penalty or forfeiture; or
(ii) a statutory debt created by the payment of public assistance.
As defined by this Court in Royal Ins. Co. v. Roadarmel , 2000 MT 259, 17, 301 Mont. 508, 17, 11 P.3d 105, 17, a "liability created by statute" is one which "establishes a new rule of private right unknown to the common law." Put another way, it is a "'liability which would not exist but for the statute . . . .'" Royal Ins. Co. , 17 (citing Abell v. Bishop (1930), 86 Mont. 478, 486, 284 P. 525, 528). In Royal Ins. Co. , we concluded that an insurer's right to subrogation in a workers' compensation claim constituted a "liability created by statute" within the meaning of § 27-2-211(1)(c), MCA, "because it amount to an unqualified right of reimbursement not found at common law." Royal Ins. Co. , 33.
Montana's Unfair Trade Practices Act authorizes private individuals to maintain a cause of action for injuries sustained as a result of unfair or deceptive trade practices and allows recovery of actual damages or $200, whichever is greater. See § 30-14-133(1), MCA. Additionally, the district court may, in its discretion, award up to three times the amount of actual damages and reasonable attorney fees. See § 30-14-133(1), MCA; Dillree v. Devoe (1986), 223 Mont. 47, 54, 724 P.2d 171, 176. While it is possible to conceive of a case in which the same conduct gives rise to a common law cause of action and a claim under the Act, we conclude the Act creates a liability not existing at common law by providing the successful claimant the unqualified right to receive the greater of $200, or actual damages. Further, the Act provides authority for the district court to award treble damages upon successful proof of unfair or deceptive practices. In Plath v. Schonrock , 2003 MT 21, 27, 314 Mont. 101, 27, 64 P.3d 984, 27, we determined that such damages are intended to be compensatory rather than punitive, and thus, do not constitute a penalty.
Therefore, as a liability created by statute that is neither a penalty nor a statutory debt, claims brought under Montana's Unfair Trade Practices Act, § 30-14-101, et seq., MCA, are subject to the two-year time limitation set forth at § 27-2-211, MCA. Having so concluded, we now turn to the record to determine whether Osterman's claims were timely filed.
Osterman filed her complaint on May 4, 1999, approximately two years and nine months after entering the Sales Agreement with K-Designers and Sears. This period of time notwithstanding, Osterman argues the District Court erred in dismissing her claims for fraud and unfair trade practices as untimely because when she entered the Sales Agreement, she believed she was dealing exclusively with Sears, and that it was not until sometime later that she discovered K-Designer's involvement in the siding project. Accordingly, Osterman argues that disputed issues of material fact regarding discovery of her cause of action raised the possibility that her action had accrued beyond the two-year statutory period, and thus, precluded an award of summary judgment.
As a general rule, the statute of limitations for actions based on fraud begins to run when the fraud occurs, unless the facts forming the basis for the alleged fraud are, by their nature, concealed, or the defendant takes affirmative action to prevent the plaintiff from discovering the injury. Cartwright v. Equitable Life Assurance Soc'y (1996), 276 Mont. 1, 17, 914 P.2d 976, 986. A significant number of jurisdictions also apply this rule to actions for unfair trade practices. Teran v. Citicorp. Per
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