Opinion
No. 1-469 / 00-1661.
Filed January 9, 2002.
Appeal from the Iowa District Court for Scott County, MARK J. SMITH, Judge.
Plaintiffs appeal from the district court ruling granting summary judgment in favor of defendants in plaintiffs' personal injury actions following an automobile accident. AFFIRMED.
Jeno Berta of Jeno M. Berta, P.C., West Orange, New Jersey, and David A. Mahl of Allen Mahl, Bettendorf, for appellants.
Steven T. Durick and Joseph M. Barron of Peddicord, Wharton, Spencer Hook, P.C., Des Moines, for appellees.
Heard by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Plaintiffs Lisa DeLathower and Tammi Forest appeal from the district court ruling granting summary judgment in favor of defendants Donald E. Crimi and his estate in the plaintiffs' personal injury actions brought following an automobile accident. The plaintiffs contend the court erred in granting summary judgment because equitable estoppel precluded their suits from being barred by the statute of limitations. We affirm.
I. BACKGROUND FACTS
On June 4, 1997 the plaintiffs, Lisa DeLathower and Tammi Forest, were involved in an automobile accident with the defendant, Donald E. Crimi. On or about June 13, 1997 attorney David Mahl informed Crimi's insurance carrier, Progressive Insurance Company (Progressive), of his representation of Forest and her possible claim against Crimi. On or about June 20, 1997 Progressive wrote Mahl, stating that no voluntary payment would be made, as Crimi was not at fault. On or about August 28, 1997 Progressive reiterated its stand by writing to Mahl, denying any claims against Crimi, asserting Crimi did not cause the accident and Forest was at fault, and stating it would vigorously defend any litigation in the matter.
Further discussions occurred over time but Progressive's position concerning fault and liability did not change. In approximately mid-May of 1999 an adjuster for Progressive had a conversation with attorney Mahl. The adjuster, apparently in response to a question as to Crimi's current address, stated, "We don't know where he is." DeLathower and Forest separately filed suits against Crimi on May 28, 1999 and June 2, 1999, respectively. They alleged Crimi's fault caused the accident and they had suffered personal injuries as a result. The plaintiffs acknowledge Crimi was not injured in the accident.
The plaintiffs sought to serve Crimi. By June 3, 1999 and June 19, 1999 DeLathower and Forest respectively discovered Crimi had died on June 7, 1998. The plaintiffs opened an estate for Crimi on October 6, 1999 and the administrator of the estate accepted service on behalf of the estate on that same day. DeLathower and Forest then sought and secured consolidation of their petitions and filed a joint motion to amend to include the Estate of Donald E. Crimi as a co-defendant. The court granted the plaintiffs' motion, the plaintiffs filed an amended petition, and the estate filed an answer to the amended petition.
It is undisputed that Crimi died almost eleven months before the plaintiffs filed their lawsuits. It is clear that Crimi, as a deceased person, could not be sued. See Jacobson v. Union Story Trust Sav. Bank, 338 N.W.2d 161, 163 (Iowa 1983). We will nevertheless refer to the two named co-defendants collectively as "Crimi."
On July 27, 2000 Crimi filed a motion for summary judgment. The plaintiffs resisted the motion for summary judgment asserting equitable estoppel as a bar to the statute of limitations. The court granted the motion for summary judgment on statute of limitations grounds finding the plaintiffs had failed to file suit against Crimi's estate within the applicable two-year statute of limitations and equitable estoppel did not bar application of the statute of limitations as the plaintiffs had failed to generate a genuine issue of material fact on the first of four elements of eqiutable estoppel. DeLathower and Forest appeal the court's grant of summary judgment.
II. STANDARD OF REVIEW
We review a district court's ruling on a motion for summary judgment for correction of errors at law. Iowa R. App. P. 4; Phillips v. Covenant Clinic, 625 N.W.2d 714, 717 (Iowa 2001).
A district court properly grants summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. A factual issue is "material" only if "the dispute is over facts that might affect the outcome of the suit." The burden is on the party moving for summary judgment to prove the facts are undisputed.
In ruling on a summary judgment motion, the court must look at the facts in a light most favorable to the party resisting the motion. The court must also consider on behalf of the nonmoving party every legitimate inference that can be reasonably deduced from the record. An inference is legitimate if it is "rational, reasonable, and otherwise permissible under the governing substantive law." On the other hand, an inference is not legitimate if it is "based upon speculation or conjecture." If reasonable minds may differ on the resolution of an issue, a genuine issue of material fact exists.
Phillips,625N.W.2d at 717-18 (citations omitted).
The party resisting the motion, however, "may not rest upon the mere allegations or denials in the pleadings" but "must set forth specific facts showing that there is a genuine issue for trial." Iowa R. Civ. P. 237(e).
The resistance must set forth specific facts which constitute competent evidence showing a prima facie claim. By requiring the resister to go beyond generalities, the basic purpose of summary judgment procedure is achieved: to weed out "[p]aper cases and defenses" in order "to make way for litigation which does have something to it."Thompson v. City of Des Moines, 564 N.W.2d 839, 841 (Iowa 1997) (quoting Fogel v. Trustees of Iowa College, 446 N.W.2d 451, 454 (Iowa 1989)).
III. MERITS
DeLathower and Forest claim they would have filed suit against Crimi's estate within the two-year statute of limitations had they known Crimi was deceased but were prevented from doing so because their on-going negotiations with Crimi's insurance carrier, Progressive, induced them to detrimentally rely upon an inference that Crimi was alive. Essentially, they argue that Progressive had a duty as Crimi's insurance carrier to know the status of its insured and then reveal this information to the plaintiffs.
Equitable estoppel is a recognized defense to the running of the statute of limitations. Beeck v. Aquaslide `N' Dive Corp., 350 N.W.2d 149, 157 (Iowa 1984). An estoppel may be based on fraudulent concealment. Id. at 158. The elements necessary to prove equitable estoppel are well established: (1) a false representation or concealment of material facts by the opposing party; (2) a lack of knowledge of the true facts on the part of the party asserting the defense; (3) intention on the part of the opposing party that the representations be acted upon; and (4) reliance by the asserting party on such representations to their prejudice or injury. Hendricks v. Great Plains Supply Co., 609 N.W.2d 486, 493 (Iowa 2000); Meier v. Alfa-Laval, Inc., 454 N.W.2d 576, 578-79 (Iowa 1990); Beeck, 350 N.W.2d at 158. All of these elements must be proven in order to establish a claim of equitable estoppel. Hendricks, 609 N.W.2d at 493.
The district court determined DeLathower and Forest failed to present evidence that Progressive either concealed information it was obligated to provide or that it made any false representations. Without reaching the other three required elements, the court concluded because the plaintiffs had failed to generate a fact issue on the first element of equitable estoppel they could not use it as a bar to the application of the statute of limitations and thus summary judgment should be granted based on statute of limitations grounds.
On appeal the plaintiffs urge that the trial court erred in granting summary judgment because equitable estoppel applied to preclude application of the statute of limitations defense. They argue that Progressive, as an agent for its insured, Crimi, knew or was in a better position to know of Crimi's death; by participating in ongoing negotiations Progressive represented that Crimi was able to contribute to the process, thus representing he was alive; and Progressive's representation caused them not to file suit against Crimi's estate within the two-year statute of limitations. For the following reasons we agree with the district court that summary judgment was appropriate.
We assume, without deciding, that the fact of Crimi's death was a "material fact." The plaintiffs, having potential lawsuits against Crimi, were in an adverse position to Progressive and its insured. The plaintiffs cite no authority, and we have found none, that under the circumstances of such an adverse relationship Progressive had a duty, running to the plaintiffs, to investigate and be aware of when Crimi died and to inform the plaintiffs of his death when it occurred. We conclude Progressive did not have such a duty, as each party has the duty to investigate and be aware of facts and events relevant to the party's own claim or defense.
The absence of a duty to discover Crimi's death and to reveal it to the plaintiffs would not, however, allow Progressive to make a false representation that Crimi was alive. We will therefore assume for further discussion, without so deciding, that Progressive was aware of Crimi's death. The plaintiffs point to evidence that after Crimi's death negotiations occurred, including discussion of the possibility of alternative dispute resolution (ADR). They argue that in order to effectively participate in ADR Progressive would have to have been in contact with Crimi, and that by agreeing to consider such a potential settlement option Progressive implicitly represented Crimi was in a position to effectively contribute to the process. Their unstated conclusion is that they could therefore reasonably infer Crimi was still alive and rely on such an inference.
The summary judgment record, however, contained only evidence that Progressive agreed to consider ADR, and contained no evidence that Progressive agreed to engage in ADR. Progressive would not need Crimi's approval to merely agree with the plaintiffs to consider ADR. Therefore, any inference that by agreeing to consider ADR Progressive represented it had been in contact with Crimi and thus represented he was alive is not a legitimate inference creating a genuine issue of material fact because it is at best based on speculation and conjecture. See Phillips, 625 N.W.2d at 718 (stating an inference is not legitimate if based on speculation or conjecture).
Further, for an additional reason the fact Progressive continued negotiations and settlement discussion cannot support a legitimate inference that Progressive was thereby representing that Crimi was still alive. When claims against an insured are within policy limits an insurer ordinarily has the right to settle the claims without regard to whether the insured consents or approves. The plaintiffs neither asserted nor presented any evidence that any claims, demands or requests they made to Crimi or Progressive exceeded the limits of Crimi's insurance policy with Progressive. Absent evidence to such effect, any inference that by continuing to negotiate and discuss settlement Progressive represented Crimi was alive would also be based on speculation and conjecture, and is thus not a legitimate inference creating a genuine issue of material fact.
We conclude Progressive had no affirmative duty to the plaintiffs to investigate and be aware of Crimi's death and disclose the death to plaintiffs, and no genuine issue of material fact exists concerning the first element of equitable estoppel. We therefore conclude the trial court did not err in granting summary judgment.
Finally, we note Crimi argues on appeal that because Progressive is not an "opposing party" to the plaintiffs the doctrine of equitable estoppel does not apply to the facts and circumstances in this case. We believe it could reasonably be argued that Progressive's actions were as Crimi's agent and thus binding on Crimi's estate. However, as we have concluded Progressive had no affirmative duty to be aware of and disclose Crimi's death to the plaintiffs and there was no genuine issue of material fact concerning a false representation by Progressive, we need not decide the question.
AFFIRMED.