Second Circuit Holds Delayed Discovery Rule Applies to Unfair Competition Claims

Recently, in Broberg v. The Guardian Life Insurance Company of America, 171 Cal. App. 4th 912 (2009), the Court of Appeal held that the “delayed discovery” rule, which applies to delay accrual of the statute of limitations for fraud causes of action until such time as the plaintiff discovers facts putting him on notice of the fraud, applies to unfair competition claims that are based upon alleged fraud.  Guardian allegedly sold a life insurance policy by falsely representing that earnings from the policy would be sufficient to pay premium costs after the policy’s 11th year and by providing misleading marketing materials that represented out-of-pocket costs would be eliminated in the policy’s 12th year.   The plaintiffs claimed they were not aware of the falsity of these representations until they were billed for additional premiums after the 11th year.  The trial court, relying on the four-year statute of limitations, dismissed the action with prejudice by concluding that the claims had accrued when the policy was first sold.  The trial court also held that the plaintiffs could not establish justifiable reliance because of inconsistent language in the policy itself and in a footnote disclosure in the marketing material.

Applying the delayed discovery doctrine, the Court of Appeal reversed.  It held, as a matter of law, that the placement of the disclaimers – “buried in a sea of same-sized capitalized print” – coupled with the absence of “any cautionary language” on the first page of Guardian’s policy illustration precluded such a determination.  In so holding, the court added to the conflict in published decisions on the issue of whether the “delayed discovery” rule applies to unfair competition claims. See, e.g., Snapp & Associates Ins. Services, Inc. v. Robertson, 96 Cal. App. 4th 884, 891 (2002) (holding the “delayed discovery” rule does not apply to unfair competition claims).

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