Kathy Wone’s “Misguided Complaint”
In Round Three of the statute of limitations (SOL) argument, the defense has filed their Reply Memorandum of Point and Authorities in Support of Motion to Dismiss Counts One, Three and Four (or in the alternative) Motion for Partial Summary Judgment.
At the center of this may be the interpretation of Chappelle v. Sanders and whether SOL was tolled by alleged acts of ‘fraudulent concealment.’ The plaintiffs say yes, but the defense says Team Covington’s Opposition“evidences a fundamental misunderstanding of DC’s statute of limitations jurisprudence.”
The defense reply states that while some jurisdictions holds that fraudulent concealment of the responsible party for a wrongful death tolls the limitations period, “…this is not the law in the District of Columbia.”
Calling Kathy Wone’s wrongful death complaint “misguided,” the defense hammers away in saying she was well aware of the circumstances of her husband’s death before the November 2008 filing, therefore blowing the one-year time limit.
While other jurisdictions may allow for tolling, the defense states:
“To the contrary, our Court of Appeals has expressly and unambiguously held that the SOL for wrongful death, like other intentional torts, begins to run when the plaintiff learns of the wrongful deaath itself. Whether the identities of the allegedly liable parties are fraudulently concealed, but the existence of the cause of action itself is known, the running of the SOL does not toll.”
Within weeks of the murder, the defense states that plaintiffs knew the following facts:
1. Robert was stabbed in 1509 on August 2, 2006
2. Zaborsky dialed 9-1-1 at 11:49pm.
3. The only occupants of the house were Robert and the defendants.
4. The knife used was kept in 1509.
5. Robert died as a result of the stabbing.
6. On August 3, the defendants told police and intruder entered the house.
7. On August 14, it was reported that MPD stated in an affidavit that the crime scene had been tampered with and at a press conference police said they did not believe the defendants’ account.
8. On August 16, the search warrant publiclly stated the crime scene had been tampered.
This was enough information, the defense states, to trigger a wrongful death claim. “Accordingly, rather than filing her misguided Complaint in November 2008, the plaintiff was perfectly capable of filing the same misguided complaint more than two years earlier.”
The defense also pounds away at the “Plaintiff’s perplexing plea for additional discovery,” and that Covington “failed to preserve its argument that more discovery is necessary before summary judgment can be rendered because Plaintiff did not comply with Super. Ct. Civ. R. 56(f) in multiple respects…” Simply put, the “Plaintiff’s Opposition does not contain an affidavit explaining why further discovery in necessary in order for this Court to rule on the defendants’ present Motion.”
The defense memo goes on to brush back plaintiff claims on the spoliation and conspiracy claims, but more than anything else, it looks like Judge Brook Hedge will have her hands full with the SOL. And if she agrees with the defense, the Estate of Robert Wone may be SOL.