The Continuing Wrong Doctrine
In Tiberi v. Cigna, 89 F.3d 1423 (10th Cir. 1996), the Tenth Circuit Court of Appeals articulated the continuing wrong doctrine as follows:
"In actions for relief, on the grounds of fraud or mistake . . . the cause of action shall not be deemed to have accrued until the fraud or mistake . . . shall have been discovered by the party aggrieved. . . . Normally, the limitations period begins to run when the plaintiff discovers the fraud or when, with reasonable diligence, the plaintiff could have discovered the fraud. . . . Under the continuing wrong doctrine, however, where a tort involves a continuing or repeated injury, the cause of action accrues at, and limitations begin to run from, the date of the last injury. . . . In other words, the statute of limitations does not begin to run until the wrong is over and done with." Id. at 1430-1431.
In addition, the doctrine cannot be utilized where a plaintiff's injury is definite and discoverable, and nothing prevents him from coming forward to seek redress. Id. at 1431.
In Tiberi, the plaintiff brought an action against an insurance company for breach of contract, fraud, misrepresentation, and unfair trade practices. In the original complaint, he alleged that the defendant's misleading conduct subjected it to liability for inter alia constructive fraud, fraud, and negligent misrepresentation. The appellate court held that there was a genuine issue of material fact as to whether the statute should have been tolled by virtue of the continuing wrong doctrine. Id. at 1430.
The court rejected the defendants' argument that the continuing wrong doctrine was inapplicable because the plaintiff had known of his injury and the cause thereof since at least four years before the final misrepresentation was made. Id. 1431.
The court held that the plaintiff should not be penalized for his delay because it was defendant's misrepresentations that prevented him from ascertaining the cause of his injury. Id.