Home › Case briefs › Civil Procedure

Del Vecchio v. Conseco, Inc.

Indiana Court of Appeals · Civil Procedure

Civil ProcedureSummary JudgmentStatutes of LimitationAccrualDiscovery Rulesummary judgmentstatute of limitationsaccrual

Facts

Del Vecchio exchanged a $5,000 whole life policy for a $10,000 universal life policy after a Bankers agent allegedly told him the new policy would remain in force for life without additional premium payments. Bankers issued the new policy in 1984, and beginning in 1985 sent annual statements stating that under guaranteed assumptions the policy would remain in force only until May 20, 1997 with no future premium, and that current interest rates and risk charges were not guaranteed. Del Vecchio testified that he read the 1985 statement, and later statements and a 1991 letter likewise warned that the policy could terminate unless additional premiums were paid. He filed suit in 1998.

Issue

When did Del Vecchio's causes of action accrue for limitations purposes, and were his claims for breach of contract, breach of fiduciary duty, breach of duty of good faith and fair dealing, and unjust enrichment/constructive trust timely filed? More specifically, did the 1985 annual statement give him sufficient notice to start the limitations periods running?

Rule

Under Indiana's discovery rule, a cause of action accrues and the statute of limitations begins to run when the plaintiff knew or, through ordinary diligence, could have discovered that an injury had been sustained as a result of another's act; full extent of damages need not be known, only some ascertainable damage. This rule applies to both tort and contract claims. The applicable limitation periods here are six years for oral contract, ten years for written contract, two years for breach of fiduciary duty, two years for breach of duty of good faith and fair dealing, and six years for constructive trust claims because fraud is a prerequisite to a constructive trust.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Indianapolis, Nora Keating replaced an old annuity after an agent for Larkspur Heritage Life told her the new product would provide guaranteed monthly payments for life without any further deposits. The next year, Larkspur mailed Nora a statement she read stating that under guaranteed assumptions the payments would stop in 2032 unless additional deposits were made, though under current assumptions they might last longer. Nora sued in 2040 for breach of contract and breach of fiduciary duty.

When did Nora's causes of action most likely accrue under Indiana law as applied by the court?

Explanation. The governing rule is that a cause of action accrues when the plaintiff knew or, through ordinary diligence, could have discovered that an injury had been sustained as a result of another's act. The rule applies to both contract and tort claims, and accrual does not wait for the full extent of damages. A statement expressly contradicting the earlier assurance gave Nora notice that the product was less valuable than promised, which is some ascertainable damage.