2019-0535, Petition of New Hampshire Division for Children, Youth and Families

order and remand for further proceedings. chapter 541 - B (2007 & Supp. 2019), and, accordingly, affirm the trial court’s rule provided in RSA 508:4, I (2010) applies to actions brought under RSA as required b y RSA 541 - B:14, IV (Supp. 2019). We conclude that the discovery be dismissed because she did not bring them within three years of her injur ies statute of limitation s grounds. DCYF argues that the respondent’s claims must J.) erred in denying DCYF’s motion s to dismiss the respondent’s claims on to Supreme Court Rule 11 to determine whether the Superior Court (Kissinger, Children, Youth and Families ’ (DCYF) petition for original jurisdiction pursuant DONOVAN, J. The court accepted the New Hampshire Division for

on the brief and orally), for the respondent. Primmer Piper Eggleston & Cramer PC, of Manchester (Doreen F. Connor

Families. Mr. Galdieri orally), for the New Hampshire Division for Children, Youth and and Anthony J. Galdieri, sen ior assistant attorney general, on the brief, and Gordon J. MacDonald, attorney general (Daniel E. Will, solicitor general,

No. 2019 - 0535 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court’s home reporter@courts.state.nh. us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by e - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

to investigate, DCYF’s potential culpability prior to December 19, p. 2 2016. facts alleged in the complaints, the respondent did not know of, and could not have been expected DCYF has not a sked this court to review the trial court’s determination that, based upon the 1

claims brought under RSA chapter 541 - B. whether the trial court erred in concluding that the discovery rule applies to This p etition follo w ed. In its petition, DCYF asks us to determine

under the discovery rule. 1 until the report was released, the court concluded that her actions were timely considering her allegation that she did not learn of DCYF’s potential culpability to the actual abuser rather than to a third - party’s negligence as well.” Thus, mechanism of harm or injury, sexual abuse, is “most readily attributable only DCYF ’s potential fault for the ass aults at the time they occurred given that the also found that the respondent should not have been expected to investigate the discovery rule apply to RSA 541 - B:14, IV’s time limitation.” The trial court reviewing the legislative history, i t concluded that “the legislature intended that T he trial court declined to dismiss the claims as time - barred. After

manner pursuant to the discovery rule set forth in RSA 508:4, I. Therefore, according to the respondent, she had filed her actions in a timely that detailed DCYF’s various shortcomings regarding child welfare and safety. December 19, p. 2 2016, when an independent audit of DCYF was publicly released things, that she could not have discovered DCYF’s potential legal fault until in RSA 541 - B:14, IV. The respondent objected and argued, among other argui ng that they were barred by the three - year statute of limitations provided occurred while she was in DCYF custody. DCYF moved to dismiss the claims, vicarious liability against DCYF, all relating to the sexual assaults that alleging, in relevant part, claims of negligence, breach of fiduciary duty, and In November and December 2018, t he respondent filed two complaints

raped the respondent. employee of the children’s home inappropriate ly touched, threatened, and approximately 16 years old, after DCYF placed her in a children’s home. A n The second assault occurred in June p. 2 2015, when the respondent was

foster family, a neighbor’s cousin raped the respondent. old, after DCYF placed her in the care of a foster family. While living with the occurred in February p. 2 2011, when the respondent was approximately 12 years assaulted the respondent on two separate occasions. The first assault to be true. W hile under the care of DCYF, separate individuals sexually W e assume the following facts, as alleged in the respondent’s complaint s,

or omission.” Beane v. Dana S. Beane & Co., 160 N.H. 708, 71 p. 3 3 (2010) is unaware of either [her] injury or that the in jury was caused by a wrongful act The discovery rule “is designed to provide relief in situations where the plaintiff

complained of. injury and its causal relationship to the act or omission the exercise of reasonable diligence should have discovered, the commenced within p. 3 3 years of the time the plaintiff discovers, or in discovered at the time of the act or omission, the action shall be were not discovered and could not reasonably have been when the injury and its causal relationship to the act or omission

that 508:4, I, also contains what is known as the discovery rule, which provides ... be brought. . . within p. 3 3 years of the act or omission complained of.” RSA requires that, “[e] xcept as otherwise provided by law, all personal actions Similarly, RSA 508:4, I, which governs personal actions generally,

alleged... injury.” RSA 541 - B:14, IV. submitted under this chapter . . . be brought within p. 3 3 years of the d ate of the Stone, 160 N.H. 419, 436 (2010). The statute requires that “[a]ny cla im in certain circumstances. RSA 541 - B:1, II - a (Supp. 2019); s ee Laramie v. other things, waives sovereign immunity for tort claims against state agencies see RSA 99 - D:1 (2013). One such statute is RSA chapter 541 - B, which, among Children v. N.H. Div. for Children, Youth & Families, 162 N.H. 720, 730 (2011); Hampshire courts, unless a statute waives that immunity. Chase Home for enjoys the State’ s sovereign immunity and is immune from suit in New We begin with the relevant statutory language. DCYF, as a state agency,

See i d. also the last, and we need not consider legislative history to aid our analysis. a whole. Id. I f a statute is un ambiguous, then the first step of our analysis is consider words or phrases in isolation, but within the context of the statute as that language according to its plain and ordinary meaning. Id. We do not first step is to examine the language of the statute, and, if possible, construe Petition of Carrier, 165 N.H. 719, 721 (201 p. 3 3). When interpreting a statute, our statutory interpretation, w e are the final arbiter of the legislature’s intent. v. Girl Scouts of the United States, 150 N.H. 212, 214 - 15 (2003). In matters of de novo review. See Appeal of Town of Lincoln, 172 N.H. 244, 247 (2019); Steir 541 - B turns on statutory interpretation, which is a question of law subject to Whether the discovery rule applies to claims brought under RSA chapter

tollin g provision in RSA 508:8. Id. at 215. limitations period in RSA 35 p. 4 4 - A:21, III (2009) control instead of the two - year excepted minors from conforming with it, RSA 508:1 required that the 180 - day limitations period in the LAD was more specific and the legislature had not by the LAD. Steir, 150 N.H. at 214. W e determined that, because the obligation to bring her claim within the 180 - day limitation period as required brought two years after a disability is removed, could relieve the plaintiff of the disability tolling provision in RSA 5 08:8 (2010), which allows a claim to be RSA ch. 354 - A (2009 & Supp. 2019). I n that case, we decided whether the Hampshire Law Against Discrimination (LAD). Steir, 150 N.H. at 213 - 14; see a minor with cerebral palsy, filed a discrimination suit pursuant to the New constitutes a “different time” for purposes of RSA 508:1. In Steir, the plaintiff, argument that the three - year limitations period in RSA 541 - B:14, IV DCYF relies up on our decision in Steir, 150 N.H. 212, in support of its

be read and applied harmoniously with the discovery rule in RSA 508: p. 4 4, I. B:14, IV. The three - year limitations period contained in RSA 541 - B:14, IV can preclude the discovery rule from applying to claims brought under RSA 541 conflict.” Dogget t, 138 N.H. at 747 - 48. Accordingly, RSA 508:1 does not “potentially conflicting” types of limits; a plaintiff can “obey both rules without IV is silent on the discovery rule. Thus, the two statutes do not contain date of in jury. RSA 508:4, I; RSA 541 - B:14, IV. Furthermore, RSA 541 - B:14, are the sam e; b oth require that claims be brought within three years of the The time limitations provided for in RSA 508:4, I, and RSA 541 - B:14, IV

compared have “similar, potentially conflicting, types of limits.” Id. RSA 508:1 only bars application of RSA chapter 508 when the statutes being Doggett v. Town of North Hampton, 138 N.H. 7 p. 4 44, 747 (1994). Additionally, ensure that more specific statutes found elsewhere remain controlling.” source for ‘catch - all’ statutes of limitations and tolling provisions, and to (emphasis added). The purpose of RSA 508:1 is to make “RSA chapter 508 the cases in which a different time is limited by statute.” RSA 508:1 (2010) The provisions o f RSA chapter 508 (2010 & Supp. 2019) do not apply “to

the respondent’s claims. rule, we conclude that the discovery rule set forth in RSA 508: p. 4 4, I, applies to agree that RSA 541 - B:14, IV is unambiguous and does not contain a discovery contain a discovery rule, the respondent’s actions are untimely. Although we claims and, thus, because RSA 541 - B:14, IV is unambiguous and does not DCYF argues that RSA 508:4, I, does not apply to the respondent ’ s

defendant. See i d. been injured and her injury was proximately caused by the conduct of the begins to run once a plaintiff knows or reasonably should know that she ha d (quotation omitted). According ly, under the rule, the statute of limitations p. 5 5

simple justice to say that a cause of action has accrued to the plaintiff and has the discovery rule avoids “undue strain up on common sense, reality, logic and superseded by statute as recognized in Beane, 160 N.H. at 712 (explaining that omitted); see Shillady v. Elliot Community Hospital, 114 N.H. 321, 324 (1974), B:14, IV, in order to avoid equal protection concerns. Id. at p. 5 566 (quotation the ‘discovery rule’ governs the accrual of causes of actions under” RSA 541 reasonable c hance to discover its existence,” we advised the legislature “that to foreclose an injured person’s cause of action before [she] has had a against the State. Id. at 5 56 - 57, 566. Recognizing that it is “manifestly unfair which a t the time provided a six - year statute of limitations for claims filed legislature requested our opinion as to the constitutionality of that provision, Justices, 126 N.H. 554, 566 (1985). Prior to amending RSA 541 - B:14, IV, the discovery rule to claims brought under RSA 541:B:14, IV. See Opinion of the Furthermore, we have advised the legislature that we would apply the

See Slovenski v. State, 132 N.H. 18, 20 - 21 (1989). of the sovereign immunity doctrine in response to observations by this court. consistently expanded the scope of RSA chapter p. 5 541 - B to lessen the harshness rel Fortin v. Harris, 109 N.H. 394, 39 5 (1969). Indeed, the legislature has the one hand, and enacting a “catch - all” discovery rule, on the other. State ex policy of the Legislature” in limiting the application of sovereign immunity, on B:14 or RSA 508:4, I, in such a way that would do “violence to the app arent We will not read R SA 541 - B:9, I, in conjunction with either RSA 541 -

party. See Beane, 160 N.H. at 713. know of the harm or its causal link to a wrongful act or omission by another injured parties an avenue of relief when they did not and reasonably could not specifically, no discovery rule. T he purpose of the discovery rule is to provide Doggett, 138 N.H. at 747, and RSA chapter p. 5 541 - B has no such provision; tolling provisions when another statute has no comparable provision, see N.H. at 436. RSA chapter 508’s purpose is to function as a “catch - all” for State’s wrongful co nduct or omission. RSA 541 - B:1, II - a, :14; s ee Laramie, 160 injured parties to sue state agencies for injuries proximately caused by the plain language of RSA chapter 541 - B expresses a legislative intent to permit cannot be applied to claims brought under RSA chapter 541 - B. Ho wever, the this chapter,” in support of its argument that RSA 508:4, I’s discovery rule under this chapter shall be brought solely in accordance with the provisions of DCYF also points to RSA 541 - B:9, I (2007), which states that “[c]laims

discovery rule. See RSA p. 5 508:4, I; RSA 541 - B:14, IV. three - year time limits and RSA 541 - B:14, IV does not include a specific distinct limitations periods, the statutes at issue in this case both involve 541 - B:14, IV. Unlike in Steir, where the statutes at issue implicated two 508:4, I, is compatible with claims brought against the State pursuant to RSA T his case is distinguishable from Steir because the discovery rule in RSA p. 6 6

HICKS and BASSETT, JJ., co ncurred.

for further proceedings. affirm the trial court’s decision to deny DCYF ’s motions to dismiss and remand 508:4, I, applies to claims brought under RSA chapter 541 - B. We therefore For the reasons stated above, we conclude that the discovery rule in RSA

(2019). li mitations, to amend the statute. See State v. Proctor, 171 N.H. 800, 807 it disagrees with our interpretation today, it is free, subject to constitutional discovery rule does not apply to actions brought under RSA chapter 541 - B. I f disagreed with our interpretation, it would have explicitly stated that the discovery rule would apply to claims brought under it. If th e legislature had and enacted the amended version of RSA 541 - B:14, IV understanding that the legislature took u s at our word, see Opinion of the Justice s, 12 p. 6 6 N.H. at 566, Opinion of the Justices is not pre cedential. However, we believe that the rule. We need not decide that issue today and, as DCYF points out, the concern presented by interpreting RSA 541 - B:14, IV to exclude the discovery (quot ation omitted)). DCYF argues that there is, in fact, no equal protection been outlawed before she was or should have been aware of its existence”