602 F.2d 657 (4th Cir. 1979), 78-1786, Beverage v. Harvey

Docket Nº:78-1786.
Citation:602 F.2d 657
Party Name:Charles B. BEVERAGE, Jr., Administrator of the Estate of Gwendolyn Hicks, Deceased, Appellant, v. Fred Douglas HARVEY, Appellee.
Case Date:July 31, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 657

602 F.2d 657 (4th Cir. 1979)

Charles B. BEVERAGE, Jr., Administrator of the Estate of

Gwendolyn Hicks, Deceased, Appellant,

v.

Fred Douglas HARVEY, Appellee.

No. 78-1786.

United States Court of Appeals, Fourth Circuit

July 31, 1979

Argued June 4, 1979.

Page 658

Thomas W. Williamson, Jr. and Emanuel Emroch, Richmond, Va. (Emanuel Emroch and Associates, Richmond, Va., on brief), for appellant.

J. W. Morris, III, Richmond, Va. (R. Hunter Manson, Browder, Russell, Little, Morris & Butcher, Richmond, Va., on brief), for appellee.

Before HALL and PHILLIPS, Circuit Judges and DUMBAULD, [*] Senior District Judge.

DUMBAULD, Senior District Judge.

This action was brought on December 1, 1977, under the Virginia wrongful death statute, on behalf of the infant daughter of Gwendolyn Hicks. Gwendolyn Hicks, a passenger in a car driven by defendant, was injured in a motor vehicle collision (which occurred in Virginia on August 21, 1975) and died the next day. The action is obviously barred by the statute of limitations 1 unless plaintiff can establish its theory of estoppel.

As early as September 19, 1975, one Benjamin M. Zelman, Esquire, of New York City was active in asserting the Hicks claim. Another passenger in defendant's car, one John D. Edmonds, had also been killed, and that case was settled for.$19,000 from defendant's insurer plus $5,000 from the insurer of the other vehicle.

During the two years following the accident, Zelman discussed the case with representatives of defendant's insurer, including Carson E. Hamlett, the claims manager handling the Hicks claim, on approximately ten occasions. In May of 1976, Hamlett offered Zelman $15,000 to settle the claim. Zelman never accepted this offer, and consistently demanded both a larger offer from Hamlett and a contribution from the second driver's insurer. Zelman eventually decided to recommend a settlement consisting of.$19,000 from defendant's insurer and an unspecified amount from the other insurance company. On August 12, 1977, he wrote to Hamlett, saying "I trust that my proposal and suggestion will be accepted by you so that I can proceed to convince the other side, if possible, that the matter should be disposed of by an amicable agreement."

Hamlett did not respond to Zelman's letter until September 6, 1977. On that date, he wrote to Zelman informing him that "unless you have instituted suit prior to August 21, 1977, the statue of limitations have run" (Sic ) and adding "You of course rejected our offer of $15,000.00 when you made a counter-offer of $19,000.00. Since it appears the statue of limitations have run (Sic ), all offers we have previously made to you on the case are withdrawn." Zelman testified that he had not investigated the question of tolling the Virginia...

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