ADKINS v. UNION PAC. R.R. CO. ( 2024 )

140 Nev., Advance Opinion Lig
IN THE SUPREME COURT OF THE STATE OF NEVADA
MELINDA ADKINS, AN INDIVIDUAL; No. 85569
GERALD ED ANDREWS, AN
INDIVIDUAL; THE ESTATE OF RICH
ROMER, DECEASED, BY PRISCILLA
ROMER BARATA, AS PERSONAL
FILED
REPRESENTATIVE, INDIVIDUALLY AUG 1 5 2024
AND AS HEIR; JO BARBER, AN
INDIVIDUAL; THE ESTATE OF KIM
BUSH, DECEASED, BY SPENCER IEF DEPUTY CLERK
BUSH, AS PERSONAL
REPRESENTATIVE, INDIVIDUALLY
AND AS HEIR; ELIZA CHAVEZ, AN
INDIVIDUAL; IRENE CIAURI, AN
INDIVIDUAL; LESLIE DAVIS, AN
INDIVIDUAL; THE ESTATE OF DAVID
EDWARDS, DECEASED, BY CAROL
EDWARDS, AS PERSONAL
REPRESENTATIVE, INDIVIDUALLY
AND AS HEIR; THE ESTATE OF
JANET GOGO, DECEASED, BY
KRISTINA GOGO, AS PERSONAL
REPRESENTATIVE, INDIVIDUALLY
AND AS HEIR; JERRY HUGHES, AN
INDIVIDUAL; THE ESTATE OF MARIE
LEGGIO, DECEASED, BY HER
HUSBAND AND HEIR, JOHN LEGGIO;
THE ESTATE OF SHARON ODEN,
DECEASED, BY MICHAEL ODEN, AS
PERSONAL REPRESENTATIVE,
INDIVIDUALLY AND AS HEIR;
KAREN PAONE, AN INDIVIDUAL;
THE ESTATE OF PATRICIA PORTER,
DECEASED, AS PERSONAL
REPRESENTATIVE, INDIVIDUALLY
AND AS HEIR; CAROL CORBETT, AN
INDIVIDUAL; KATHLEEN STAITE, AN
INDIVIDUAL; VALERIE STEWART, AN
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INDIVIDUAL; MELISSA DAVIES, AN
INDIVIDUAL; DAVID EFROS, AN
INDIVIDUAL; ERIC ESCHMAN, AN
INDIVIDUAL; WENDY FENNER, AN
INDIVIDUAL; MORGAN FENNER, AN
INDIVIDUAL; RACHEL FENNER, AN
INDIVIDUAL, BY AND THROUGH
HER LEGAL GUARDIAN AND
MOTHER, WENDY FENNER;
MAGDALEN FOK, AN INDIVIDUAL;
JOSEPH GLICK, AN INDIVIDUAL;
SONIA GRIVE, AN INDIVIDUAL;
TARGA JEFFERSON, AN
INDIVIDUAL; THE ESTATE OF
ANDRE KELLEY, DECEASED, BY
ZENETA KELLEY, AS PERSONAL
REPRESENTATIVE, INDIVIDUALLY
AND AS HEIR; MARKETTA KELLY,
AN INDIVIDUAL; KATHLEEN
KINGSTON, AN INDIVIDUAL;
SPENCER KIRKSEY, AN INDIVIDUAL;
BOB MATHEWS, AN INDIVIDUAL;
AUDREY MITCHELL, AN
INDIVIDUAL; EILEEN MULHERN, AN
INDIVIDUAL; IRENE NAVIS, AN
INDIVIDUAL; ADRIENNE
PATTERSON, AN INDIVIDUAL;
NICHOLAS ROMANO, AN
INDIVIDUAL; BRIDGET RUSSO, AN
INDIVIDUAL; JOSEPH SAIN, AN
INDIVIDUAL; DENISE SASSER, AN
INDIVIDUAL; BRUCE TORREY, AN
INDIVIDUAL; JAMIE YEPSON, AN
INDIVIDUAL; THE ESTATE OF JOHN
KOSWAN, DECEASED, BY DEBRA
PAPPRICH-ADAMSON, AS PERSONAL
REPRESENTATIVE, INDIVIDUALLY
AND AS HEIR; SHURNICE COLEMAN,
AN INDIVIDUAL; EARNEST
JOHNSON, AN INDIVIDUAL; DONNA
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JOLLY, AN INDIVIDUAL; CARLA
GALLEGOS-STEPHENS, AN
INDIVIDUAL; SIERRA STEPHENS, AN
INDIVIDUAL, BY AND THROUGH
HER LEGAL GUARDIAN AND
MOTHER, CARLA GALLEGOS-
STEPHENS; ANDREA POWE-
WILLIAMS, AN INDIVIDUAL; CARIN
OWENS, AN INDIVIDUAL; ALBERTA
WILLIAMS, AN INDIVIDUAL;
ROBERTA SWOOPES, AN
INDIVIDUAL; ROYAL ALEXANDER,
AN INDIVIDUAL; SHOLEH
AMIRMOKRI, AN INDIVIDUAL;
ROSEANNA ARDOLINO, AN
INDIVIDUAL; THE ESTATE OF ANN
ASBERGER, DECEASED, BY NICOLE
BREEDEN, INDIVIDUALLY AND AS
HEIR; CATHERINE ASBERGER,
INDIVIDUALLY AND AS HEIR TO
ANN ASBERGER, DECEASED;
CHRISTOPHER ASBERGER,
INDIVIDUALLY AND AS HEIR TO
ANN ASBERGER, DECEASED; CARLY
BRESCIA, INDIVIDUALLY AND AS
HEIR TO ANN ASBERGER,
DECEASED AND IN HER CAPACITY
AS SPECIAL ADMINISTRATOR OF
THE ESTATE OF ANN ASBERGER;
EUGENE ASTARITA, AN INDIVIDUAL;
CHRISTINA ASTARITA, AN
INDIVIDUAL; LENORA AVELLA, AN
INDIVIDUAL; AMAYA BERISTAIN, AN
INDIVIDUAL; THE ESTATE OF
BARBARA BLOYER, DECEASED, BY
ELIZABETH BLOYER-FREEMAN, AS
PERSONAL REPRESENTATIVE,
INDIVIDUALLY AND AS HEIR;
ANTOINETTE WAILANI CARY, AN
INDIVIDUAL; GINA CINQUEGRANI,
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AN INDIVIDUAL; DAPHNE CLARK,
AN INDIVIDUAL; REGINA CRUDEN,
AN INDIVIDUAL; CHERYL DAILY, AN
INDIVIDUAL; MELISA DAVIES, AN
INDIVIDUAL; TONI LEANNE DAVIS,
AN INDIVIDUAL; WANDA DURNEN,
AN INDIVIDUAL; CHERI EDELMAN,
AN INDIVIDUAL; NORMA ESPINOSA,
AN INDIVIDUAL; CLAUDIA EWING,
AN INDIVIDUAL; CRAIG FALKNER,
AN INDIVIDUAL; KIMBERLY
FLOWERS, AN INDIVIDUAL; DAWN
FOREN, AN INDIVIDUAL; THE
ESTATE OF ALEXANDER
FORTUNATO, DECEASED, BY SHERY
SHIVELY, AS PERSONAL
REPRESENTATIVE, INDIVIDUALLY
AND AS HEIR; SANDRA FOSTER, AN
INDIVIDUAL; JOANNE FRANK, AN
INDIVIDUAL; KATHERINE
GALLAGHER, AN INDIVIDUAL;
VICTORIA GONZALES, AN
INDIVIDUAL; RICHARD GRAY, AN
INDIVIDUAL; JENNIFER HANNA, AN
INDIVIDUAL; TAMMY JO HANSEN,
AN INDIVIDUAL; GRETTA HAYWOOD,
AN INDIVIDUAL; DANIEL HIGGINS,
AN INDIVIDUAL; NICOLE HOFFMAN,
AN INDIVIDUAL; JACQUELINE
HOLLOWAY, AN INDIVIDUAL;
PATRICIA HOOD, AN INDIVIDUAL;
MARY HUGHES-APPEL, AN
INDIVIDUAL; DENISE HUMPHREY,
AN INDIVIDUAL; TOMMY JOHNSON,
AN INDIVIDUAL; KATHY JOINES, AN
INDIVIDUAL; THOMAS KENDRICK,
AN INDIVIDUAL; IRIS KIKUCHI, AN
INDIVIDUAL; IRENE KING, AN
INDIVIDUAL; JACQUELINE KINSEY,
AN INDIVIDUAL; SEJLA KOPCIC, AN
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INDIVIDUAL; THE ESTATE OF
VICTOR LARGESSE, DECEASED, BY
MAILE BECKWITH, AS PERSONAL
REPRESENTATIVE, INDIVIDUALLY
AND AS HEIR; CONNIE ANN LEE, AN
INDIVIDUAL; ADELLA LOGAN, AN
INDIVIDUAL; JILL MACFARLANE, AN
INDIVIDTJAL; ANN MAGLIERE, AN
INDIVIDUAL; MARIANN MATZ, AN
INDIVIDUAL; THE ESTATE OF ANNE
MCCALL, DECEASED, BY HANNA
RAILEY, AS PERSONAL
REPRESENTATIVE, INDIVIDUALLY
AND AS HEIR; GRETA MCCALL,
INDIVIDUALLY AS HEIR TO ANNE
MCCALL, DECEASED; THE ESTATE
OF ZANE MOSER, DECEASED, BY
PATRICIA MOSER, AS PERSONAL
REPRESENTATIVE, INDIVIDUALLY
AND AS HEIR; THE ESTATE OF
TERRY MUNN, DECEASED, BY
TOMMIE MUNN, AS PERSONAL
REPRESENTATIVE, INDIVIDUALLY
AND AS HEIR; THOMAS NAFTAL, AN
INDIVIDUAL; SILVIA NORIEGA-
BINYONS, AN INDIVIDUAL; THOMAS
PICKRELL, AN INDIVIDUAL; LESLEE
PIERCE, AN INDIVIDUAL; DAVID
PIERCE, AN INDIVIDUAL; NORMA
PORTER, AN INDIVIDUAL; SYDNEY
RABIN, AN INDIVIDUAL; SHERYL
ROMINES, AN INDIVIDUAL; EVELYN
ROSS, AN INDIVIDUAL; KAREN
SANCHEZ, AN INDIVIDUAL; THE
ESTATE OF KAREN SARAE,
DECEASED, BY TONI-ANTOINETTE
STEPHENS, AS PERSONAL
REPRESENTATIVE, INDIVIDUALLY
AND AS HEIR; KAREN SHELTON, AN
INDIVIDUAL; CHARLENE SHEPARD,
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AN INDIVIDUAL; EDWARD SIMMS,
AN INDIVIDUAL; MAGIC SIXX, AN
INDIVIDUAL; ANNA SLESINSKI, AN
INDIVIDUAL; LISA SNIPES, AN
INDIVIDUAL; NORMA SNYDER, AN
INDIVIDUAL; ROBERT SPENCER, AN
INDWIDUAL; ROCKY STEELE, AN
INDIVIDUAL; THE ESTATE OF
STUART STILLING, DECEASED, BY
JANELL ROSENBURG, AS PERSONAL
REPRESENTATIVE, INDIVIDUALLY
AND AS HEIR; GWYN TAYLOR, AN
INDIVIDUAL; ANTHONY TINNIN, AN
INDIVIDUAL; STEPHEN TOMS, AN
INDIVIDUAL; PAMELA TOWERS, AN
INDIVIDUAL; THE ESTATE OF
JEFFREY TRULL, DECEASED, BY
JENNIFER TRULL-SPAULDING, AS
PERSONAL REPRESENTATIVE,
INDIVIDUALLY AND AS HEIR;
MICHELLE VANHORN, AN
INDIVIDUAL; CAROLE VILL'NEUVE,
AN INDIVIDUAL; KATHY VORNBERG,
AN INDIVIDUAL; THE ESTATE OF
DANIELLE WALLISER, DECEASED,
BY STEPHEN WALLISER, AS
PERSONAL REPRESENTATIVE,
INDIVIDUALLY AND AS HEIR; ZELLA
WATSON, AN INDIVIDUAL; SUSIE
WESLEY, AN INDIVIDUAL; DIANE
WILLIAMS, AN INDIVIDUAL;
SHARON WITT, AN INDIVIDUAL;
KATINA WOODWARD, AN
INDIVIDUAL; AND ELIZABETH
ZYLKA, AN INDIVIDUAL,
Appellants,
vs.
UNION PACIFIC RAILROAD
COMPANY, A FOREIGN
CORPORATION; MONSANTO
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COMPANY; SOLUTIA INC.;
PHARMACIA LLC; CALNEV PIPE
LINE, LLC; KINDER MORGAN
PIPELINE, LLC; KINDER MORGAN
ENERGY PARTNERS, LP; KINDER
MORGAN, INC.; AND CITY OF LAS
VEGAS DOWNTOWN
REDEVELOPMENT AGENCY,
Respondents.
Appeal from a district court order granting respondents' motion
to dismiss appellants' first amended complaint in a tort action on statute of
limitations grounds. Eighth Judicial District Court, Clark County;
Kathleen E. Delaney, Judge.
Reversed and remanded.
Eglet Adams Eglet Ham Henriod and Joel D. Henriod and Erica D.
Entsminger, Las Vegas; Mueller & Associates, Inc., and Craig A. Mueller,
Las Vegas; The Law Office of Lindsay A. Dibler, LLC, and Lindsay A.
Dibler, St. Louis, Missouri,
for Appellants.
Perkins Coie LLP and M. Ray Hartman, III, San Diego, California; King
Scow Koch Durham LLC and David R. Koch, Henderson,
for Respondents CalNev Pipe Line, LLC; Kinder Morgan Energy Partners,
LP; Kinder Morgan Pipeline, LLC; and Kinder Morgan, Inc.
Jeffry M. Dorocak, City Attorney, and Timothy J. Geswein, Deputy City
Attorney, Las Vegas,
for Respondent City of Las Vegas Downtown Redevelopment Agency.
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Evans Fears & Schuttert LLP and Kelly A. Evans, Chad R. Fears, Jay J.
Schuttert, and Hayley E. Miller, Las Vegas; Shook, Hardy & Bacon, LLP,
and Thomas M. Goutman and Kim Kocher, Philadelphia, Pennsylvania,
Adam E. Miller, Clayton, Missouri, and Richard L. Campbell, Boston,
Massachusetts,
for Respondents Monsanto Company, Pharmacia LLC, and Solutia Inc.
Greenberg Traurig, LLP, and Tami D. Cowden, Kara B. Hendricks, and
Alayne M. Opie, Las Vegas,
for Respondent Union Pacific Railroad Company.
Matthew L. Sharp, Ltd., and Matthew L. Sharp, Reno; Sharp Law Center
and A. J. Sharp, Las Vegas,
for Amicus Curiae Nevada Justice Association.
BEFORE THE SUPREME COURT, CADISH, C.J., and PICKERING and
BELL, JJ.
OPINION
By the Court, PICKERING, J.:
Plaintiffs (appellants here) sued for injuries allegedly caused by
exposure to toxic chemicals while they worked at the Clark County
Government Center. They invoked the discovery rule to extend the two-
year limitations period in NRS 11.190(4)(e) that would otherwise bar their
claims. Under the discovery rule, a statute of limitations is tolled until the
injured party discovers or reasonably should have discovered facts
supporting a cause of action. Unlike some of Nevada's other statutes of
limitation, NRS 11.190(4)(e) does not expressly reference discovery-rule
tolling. Based on this omission, the district court concluded that the
discovery rule could not extend the limitations period in NRS 11.190(4)(e)
and dismissed the case as time-barred. The district court's narrow reading
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of NRS 11.190(4)(e) conflicts with long-standing judicial precedent, which
supports application of the discovery rule in appropriate circumstances
even though the statute supplying the limitations period does not
specifically refer to it. Because it was error for the district court to
categorically conclude that the discovery rule did not apply, we reverse and
remand for further proceedings consistent with this opinion.
I.
Plaintiffs brought personal injury and wrongful death claims
against Union Pacific Railroad, various companies that manufacture
polychlorinated biphenyl (PCBs) and other toxic chemicals, companies
involved with the CalNev Pipe Line, and the City of Las Vegas Downtown
Redevelopment Agency (collectively "defendants"). Over the years, they
alleged, toxic chemicals had been released on Union Pacific property, which
later became the Clark County Government Center (CCGC) site. Shortly
after the CCGC opened in 1995, workers began getting sick. Basement
workstations accumulated black soot, and soot was seen coming out of air
vents, which turned black. Some employees put screens on the vents to
block the soot, and one employee was so concerned that he scraped soot from
his desk and into an envelope. At the time, Clark County dismissed
suggestions that the workers' illnesses were related to the building,
assuring the workers that there was no problem with the property.
Plaintiffs alleged that the defendants knew of the toxic
chemicals present on the land and that workers at the CCGC would be
exposed to those toxic chemicals In their first amended complaint,
plaintiffs invoked the discovery rule, averring that their claims did not
accrue and the two-year limitations period in NRS 11.190(4)(e) did not start
to run until they reasonably could have discovered their injuries and the
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cause of those injuries. But they did not provide details about individual
plaintiffs' experiences at the CCGC, such as the dates that each worked at
the CCGC or were exposed to toxic chemicals, what they knew about
workers' concerns, when each plaintiff became ill, and when each plaintiff
discovered or reasonably should have discovered their claims. Rather,
plaintiffs allege that, as a group, they could not reasonably have discovered
their claims until 2020, when a toxicologist linked outside ground
contamination of PCBs to indoor contamination of the same PCBs at the
CCGC, and a doctor linked plaintiffs' various illnesses to exposure to toxins.
Defendants moved to dismiss the first amended complaint on statute-of-
limitations grounds, and the district court granted the motion after
concluding the discovery rule did not apply and plaintiffs' claims were time-
barred. Plaintiffs appeal, arguing that the district court erred by failing to
apply the discovery rule or equitable tolling to their claims.
A.
A district court may dismiss an action under NRCP 12(b)(5) for
"failure to state a claim upon which relief can be granted" when the action
is barred by the statute of limitations. Bemis v. Est. of Bemis, 114 Nev.
1021, 1024, 967 P.2d 437, 439 (1998). As with any other NRCP 12(b)(5)
challenge, an action may be dismissed based on the statute of limitations
having run "only if it appears beyond a doubt that the plaintiff could prove
no set of facts, which, if true, would entitle the plaintiff to relief." Nelson v.
Burr, 138 Nev., Adv. Op. 85, 521 P.3d 1207, 1210 (2022) (alterations
omitted) (quoting Buzz Stew, LLC v. City of North Las Vegas, 124 Nev. 224,
228, 181 P.3d 670, 672 (2008)). De novo review applies on appeal from an
order granting a motion to dismiss an action as time-barred. Berberich v.
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Bank of Am., N.A., 136 Nev. 93, 95, 460 P.3d 440, 441 (2020). Although
statute of limitations challenges often present questions of fact not
resolvable on a motion to dismiss, see Siragusa v. Brown, 114 Nev. 1384,
1400-01, 971 P.2d 801, 812 (1998), the correct legal interpretation of a
statute of limitations is a question of law to which de novo review likewise
applies, Berberich, 136 Nev. at 96, 460 P.3d at 442.
When a statute's meaning is clear and unambiguous, we give
effect to that meaning. Great Basin Water Network v. State Eng'r, 126 Nev.
187, 196, 234 P.3d 912, 918 (2010). Statutes are interpreted in harmony
with other statutes, Albios v. Horizon Cmtys., Inc., 122 Nev. 409, 418, 132
P.3d 1022, 1028 (2006), and in interpreting Nevada statutes, we may
consider how other states have interpreted similar statutes, cf. State, Dep't
of Bus. & Indus. v. Granite Constr. Co., 118 Nev. 83, 90, 40 P.3d 423, 428
(2002) (considering how other states interpreted their prevailing wage
laws). Stare decisis plays an important role, and legal precedent, including
statutory interpretation, should be respected unless "compelling reasons" to
depart from that precedent are shown to exist. See A Cab, LLC v. Murray,
137 Nev. 805, 810, 501 P.3d 961, 969 (2021).
NRS 11.190(4)(e) provides a two-year limitations period for
actions "to recover damages for injuries to a person or for the death of a
person caused by the wrongful act or neglect of another." "The general rule
concerning statutes of limitation is that a cause of action accrues when the
wrong occurs and a party sustains injuries for which relief could be sought."
Petersen v. Bruen, 106 Nev. 271, 274, 792 P.2d 18, 20 (1990). But the
discovery rule provides an exception to this general rule. Id. Under the
discovery rule, a claim does not accrue "until the injured party discovers or
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reasonably should discover facts supporting a cause of action." Id. (citing
Sorenson v. Pavlikowski, 94 Nev. 440, 443-44, 581 P.2d 851, 853-54 (1978)).
Some sections of NRS 11.190 include explicit discovery-rule
language, while others do not. For instance, NRS 11.190(3)(b) provides a
three-year limitations period for claims alleging waste or trespass of real
property, "but when the waste or trespass is committed by means of
underground works upon any mining claim, the cause of action shall be
deemed to accrue upon the discovery by the aggrieved party of the facts
constituting the waste or trespass." And NRS 11.190(3)(d) provides a three-
year limitations period for claims alleging fraud or mistake, "but the cause
of action in such a case shall be deemed to accrue upon the discovery by the
aggrieved party of the facts constituting the fraud or mistake." See also
NRS 11.190(2)(d), (3)(c), (e), (f) (variously providing for delayed accrual of
certain causes of action depending on when the injured party discovered or
should have discovered certain facts). Other sections, like 11.190(4)(e), set
forth limitation periods without referring to a plaintiffs discovery of the
injury. See NRS 11.190(1)(a)-(b) (providing that claims upon a judgment or
written contract must be brought "[w]ithin 6 years"); NRS 11.190(2)(a)-(c)
(providing that claims on open accounts for goods, articles charged on a
store account, and oral contracts must be brought "[w]ithin 4 years"); see,
also NRS 11.190(3)(a), (4)(a)-(f), (5)(a)-(b) (similarly omitting discovery-rule
language).
Often, such difference in wording is seen as deliberate,
signifying a difference in meaning. Cf. Platte River Ins. Co. v. Jackson, 137
Nev. 773, 777, 500 P.3d 1257, 1261 (2021) (recognizing that the omission of
language in one part of the statute that appeared in another part of the
statute signified different meanings). But each of the NRS 11.190
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subsections should be construed in harmony with each other if they "seek
to accomplish the same purpose or object." See State, Div. of Ins. v. State
Farm Mut. Auto Ins. Co., 116 Nev. 290, 294, 995 P.2d 482, 485 (2000)
(explaining the in pari materia canon of statutory construction), abrogated
on other grounds by Killebrew v. State ex rel. Donohue, 139 Nev., Adv. Op.
43, 535 P.3d 1167, 1171 (2023). And here, the discovery-related language
in the various sections of NRS 11.190 serves to specify when or how the
discovery rule applies to determine the accrual date for particular claims; it
does not purport to govern the accrual date for all of the other claims
covered by the statute. See Sunrise Hosp. & Med. Ctr.,•LLC v. Eighth Jud.
Dist. Ct., 140 Nev., Adv. Op. 12, 544 P.3d 241, 246 n.1 (2024) (explaining
that the applicability of the negative-implication canon "is limited to when
the subjects specified in the rule can reasonably be thought to be an
expression of all that share in the quality described") (internal quotation
marks and citations omitted).
We have previously read the discovery rule into other
subsections of NRS 11.190 and limitations periods that, like NRS
11.190(4)(e), do not include explicit discovery-rule language. For example,
in Oak Grove, the court applied the discovery rule to the catch-all
,
limitations statute, NRS 11.220, which also does not include express
discovery-rule language but merely bars an action four years "after the
cause of action shall have accrued." Oak Grove Invs. v. Bell & Gossett Co.,
99 Nev. 616, 623, 668 P.2d 1075, 1079 (1983). The court reasoned that the
word "accrued" in NRS 11.220 incorporated the "diligent discovery" rule. Id.
at 622-23, 668 P.2d at 1079. Later, in Soper, we explained that a cause of
action for breach of a written or oral contract does not accrue under NRS
11.190(1)(b) and 11.190(2)(c) until the plaintiff discovers or should have
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discovered the cause of action. Soper v. Means, 111 Nev. 1290, 1294, 903
P.2d 222, 224 (1995). Again, neither of those subsections includes
discovery-rule language. And in Bemis, we relied on Soper to read the
discovery rule into the limitations period NRS 11.190(3)(c) set for the
plaintiffs' conversion claims, even though the limited discovery rule the
statute contained did not by its plain terms apply to them. 114 Nev. at
1025, 967 P.2d at 440. Shortly thereafter, in Siragusa, we revisited Oak
Grove's interpretation of NRS 11.220, the catch-all statute of limitations, to
hold that the discovery rule applied to actions for civil conspiracy. 114 Nev.
at 1393, 971 P.2d at 807. These prior decisions suggest that the discovery
rule may apply to the statute of limitations for personal injury or wrongful
death actions despite that rule's absence in the statute's text. Compare
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 322 (2012) (explaining that when a jurisdiction's highest court
has construed a statute's words or phrases, the language should be
interpreted the same way in other statutes), with BMO Harris Bank, N.A.
v. Whittemore, 139 Nev., Adv. Op. 31, 535 P.3d 241, 244 (2023) (citing
legislative acquiescence in long-standing judicial interpretations of a
statute as a reason to adhere to that interpretation).
To determine whether the discovery rule should apply here, we
consider the statute's history. See Great Basin Water Network, 126 Nev. at
196, 234 P.3d at 918 (explaining that when a statute is ambiguous, we
determine the Legislature's intent by evaluating the statute's history and
construing it "in a manner that conforms to reason and public policy").
When originally adopted, the Legislature based NRS 11.190 on statutes
from both California and Utah. James G. Sweeney, et al., Revised Laws of
Nevada, Vol. 2, § 4967, at 1441 (1912); see also 2B Norman J. Singer & J.D.
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Shambie Singer, Statutes and Statutory Construction § 52:2 (7th ed. rev.
2012) (noting that where one state adopts a statute from another state, the
adopting state may look to the other state's interpretation of that statute);
Hobbs v. State, 127 Nev. 234, 238, 251 P.3d 177, 180 (2011) (explaining that
when Nevada copies a statute from another state, that state's subsequent
case law interpreting the statute constitutes "persuasive authority").
Because NRS 11.190 was based on California and Utah statutes,
interpretations of those states' statutes are persuasive in determining
whether the discovery rule applies to NRS 11.190(4)(e).
The California Supreme Court applies the discovery rule to its
statute of limitations for personal injury and wrongful death actions. See,
e.g., Jolly v. Eli Lilly & Co., 751 P.2d 923, 926-27 (Cal. 1988) (addressing
the 1982 statute). Under California's version of the discovery rule, "the
accrual date of a cause of action is delayed until the plaintiff is aware of her
injury and its negligent cause." Id. "Mhe statute of limitations begins to
run when the plaintiff suspects or should suspect that her injury was caused
by wrongdoing." Id. at 927. California has since expressly provided for the
discovery rule in its statute of limitations for wrongful death or personal
injury toxic-tort actions. Cal. Civ. Proc. Code § 340.8 (West 2022).
Utah has likewise applied the discovery rule to its wrongful-
death statute of limitations. Myers v. McDonald, 635 P.2d 84, 85, 87 (Utah
1981). The concurrence noted that the plain wording of the statute did not
include a discovery-rule exception to the running of the statute but agreed
that a judicially created exception was necessary to preserve the plaintiffs'
constitutional rights. Id. at 87-88 (Howe, J., concurring). The Utah
Supreme Court later clarified that the discovery rule applies if (1) "a
plaintiff does not become aware of the cause of action because of the
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defendant's concealment or misleading conduct," or (2) "the case presents
exceptional circumstances and the application of the [strict limitations
period] would be irrational or unjust, regardless of any showing that the
defendant has prevented the discovery of the cause 'of action." Russell
Packard Dev., Inc. v. Carson, 108 P.3d 741, 747 (Utah 2005) (internal
quotation marks omitted). But "an initial showing must be made that the
plaintiff did not know and could not reasonably have discovered the facts
underlying the cause of action in time to commence an action within the
limitations period." Colosimo v. Roman Cath. Bishop of Salt Lake City, 156
P.3d 806, 812 (Utah 2007) (alterations and internal quotation marks
omitted).
We agree with California and Utah that the discovery rule can
apply to the statute of limitations governing wrongful death and personal
injury actions, even in the absence of express language incorporating that
rule into the statute. Fairness and justice require that in certain
circumstances, a claim should not accrue before a claimant is aware—or
should be aware through the exercise of reasonable diligence—of the claim.
See Siragusa, 114 Nev. at 1393-94, 971 P.2d at 807 (citing Spitler v. Dean,
436 N.W.2d 308, 310-11 (Wis. 1989)); see also Sorenson, 94 Nev. at 443, 581
P.2d at 853 (noting that the discovery rule is "a fairer rule"). "The rationale
behind the discovery rule is that the policies served by statutes of limitation
do not outweigh the equities reflected in the proposition that plaintiffs
should not be foreclosed from judicial remedies before they know that they
have been injured and can discover the cause of their injuries." Petersen,
106 Nev. at 274, 792 P.2d at 20. In such circumstances, applying the
discovery rule will still "satisfy the purpose of the statute of limitations,"
Oak Grove, 99 Nev. at 622, 668 P.2d at 1078, which "is to encourage the
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plaintiff to pursu[e] his rights diligently," Fausto v. Sanchez-Flores, 137
Nev. 113, 113, 482 P.3d 677, 679 (2021) (alteration in original) (quoting CTS
Corp. v. Waldburger, 573 U.S. 1, 10 (2014)).
We therefore conclude that the discovery rule may toll NRS
11.190(4)(e)'s two-year limitations period where the plaintiff is not aware of
a cause of action because of the defendant's concealment of the facts
constituting the plaintiff s claims, see Siragusa, 114 Nev. at 1393-94, 971
P.2d at 807, or "where the occurrence and the manifestation of damage are
not contemporaneous," Oak Grove, 99 Nev. at 622, 668 P.2d at 1078, such
that, despite diligent investigation, the plaintiff did not discover and could
not reasonably be expected to have discovered facts supporting a cause of
action earlier, Petersen, 106 Nev. at 274, 792 P.2d at 20. Accord Ridenour
v. Boehringer Ingelheim Pharms., Inc., 679 F.3d 1062, 1065-66 (8th Cir.
2012) (applying the discovery rule to NRS 11.190(4)(e)); Heinrich v. Ethicon,
Inc., Case No. 2:20-cv-00166-CDS-VCF, 2023 WL 3963611, at *2 (D. Nev.
2023) (same).1
B.
Plaintiffs seeking to invoke discovery-rule tolling must show
that they used reasonable diligence in determining the existence of a cause
of action. Bemis, 114 Nev. at 1025, 967 P.2d at 440; see also Colosimo, 156
P.3d at 812 (addressing tolling pursuant to the exceptional circumstances
1The federal Comprehensive Environmental Resources,
Compensation, and Liability Act (CERCLA) imports a discovery rule into
state statutory schemes that have an earlier comméncement date than the
federal commencement date in certain cases involving toxic torts. See 42
U.S.C. § 9658. We invited supplemental briefing on whether the CERCLA
discovery rule applies in this case but do not reach it since our holding
makes it unnecessary to do so.
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doctrine). Under the discovery rule, a plaintiff s reasonable diligence delays
accrual of the cause of action until the plaintiff is on inquiry notice of an
injury. Bemis, 114 Nev. at 1024-25, 967 P.2d at 440.
A plaintiff is on inquiry notice when he or she knows or should
know "of facts that would lead an ordinarily prudent person to investigate
the matter further." Winn v. Sunrise Hosp. & Med. Ctr., 128 Nev. 246, 252,
277 P.3d 458, 462 (2012) (internal quotation marks omitted); see also Jolly,
751 P.2d at 928 ("So long as a suspicion exists, it is clear that the plaintiff
must go find the facts; she cannot wait for the facts to find her."). These
facts need only extend "to the plaintiffs general belief that someone's
negligence may have caused•his or her injury." Winn, 128 Nev. at 252-53,
277 P.3d at 462 (citing Massey v. Litton, 99 Nev. 723, 728, 669 P.2d 248, 252
(1983)). Ignorance of the defendant's identity will not delay accrual of a
cause of action under the discovery rule if the plaintiff fails to use
reasonable diligence in discovering the defendant's role. Siragusa, 114 Nev.
at 1394, 971 P.2d at 807-08.
C.
Here, plaintiffs contend that Clark County dismissed workers'
concerns and assured them that nothing was wrong with the CCGC
building. They also alleged in their first amended complaint that
representations and/or nondisclosures made by" defendants left workers
with "no knowledge or understanding that they were in fact being exposed
to dangerous toxic chemicals on a daily basis that was causing their illness
and disease." Thus, some plaintiffs may raise facts supporting that one or
more defendants intentionally concealed key information related to their
potential claims. Moreover, where latent injury occurs through toxic
exposure that does not manifest itself until years later, the occurrence and
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the manifestation of the injury were not contemporaneous and enforcing
NRS 11.190(4)(e)'s two-year statute of limitations could be unjust.
Additionally, questions rernain as to whether the plaintiffs used
reasonable diligence to discover their cause of action. The first amended
complaint includes over 100 plaintiffs and did not allege when the
individual plaintiffs began working at the CCGC, when they were exposed
to toxic chemicals, or when they became ill. In the first amended complaint,
plaintiffs acknowledged that soot and a high incidence of worker illness
were apparent from the start, which could mean that some or all of the
plaintiffs were on inquiry notice of their cause or causes of action. See
Ridenour, 679 F.3d at 1066 (concluding that the plaintiff was on inquiry
notice because he told his doctor that his complained-of, compulsive
behaviors could be caused by his medication). But they also alleged that
Clark County supervisors deflected workers' concerns. They further alleged
that the plaintiffs could not have reasonably discovered that their illnesses
were linked to exposure to toxic substances until mid-to-late 2020, when an
expert consulted by the law firm the plaintiffs retained established the link
between ground contamination and exposure to toxic substances at the
CCGC and that exposure was in turn linked to their illnesses. This
allegation does not carry the day for the plaintiffs, since it does not establish
when each individual plaintiff discovered or reasonably should have
discovered their causes of action. But drawing all inferences in the
plaintiffs' favor, as we must at this stage, Buzz Stew, 124 Nev. at 228, 181
P.3d at 672, dismissal of the entire complaint under NRCP 12(b)(5) for
failure to state claims upon which relief can be granted was error.
Nevada case law does not require a plaintiff to plead the facts
supporting discovery-rule tolling with specificity. Siragusa, 114 Nev. at
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1392 n.6, 971 P.2d at 807 n.6. Although ordinarily a question of fact,
application of the discovery rule can be resolved as a matter of law where
uncontroverted evidence proves the date by which the plaintiff discovered
or should have discovered the facts giving rise to the claim. Id. at 1401, 971
P.2d at 812. But without knowing the individual plaintiffs' dates of
employment, dates of injury, and when each plaintiff discovered or should
have discovered their claims, the statute of limitations question cannot be
resolved without further factual development, which we leave to the parties
and the district court on remand.
D.
The two-year limitations period under NRS 11.190(4)(e) is
additionally subject to equitable tolling. Fausto, 137 Nev. at 113, 482 P.3d
at 679. "[E]quitable tolling is a nonstatutory remedy that permits a court
to suspend a limitations period and allow an otherwise untimely action to
proceed when justice requires it." Id. at 115, 482 P.3d at 680. To equitably
toll the two-year limitations period in NRS 11.190(4)(e), a plaintiff must
show (1) diligent action in pursuing the claim, and (2) that "extraordinary
circumstances" beyond the plaintiffs control caused the claim to be filed
outside the limitations period. Id. at 118, 482 P.3d at 682. Our review of
the record shows that the plaintiffs adequately raised, and the district court
failed to address, equitable tolling. That issue, too, remains open on
remand, as do the alternative arguments advanced in the motions to
dismiss, which the district court declined to reach because it resolved the
motions based on its reading of NRS 11.190(4)(e).
The district court erred when it dismissed this action as time-
barred by NRS 11.190(4)(e) and rejected discovery-rule tolling as a matter
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of law. It also erred by dismissing the action without considering equitable
tolling. For these reasons, we reverse and remand to the district court for
proceedings consistent with this opinion.
We concur:
, C.J.
Cadish
Bell
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