Bailey v. Greenberg

• Decision Date: 29 October 1986
• Docket Number: No. 85-490.,85-490.
• Citation: 516 A.2d 934
• Parties: Margaret M. BAILEY, Appellant, v. Mel GREENBERG, et al., Appellees.
• Court: D.C. Court of Appeals

516 A.2d 934

Margaret M. BAILEY, Appellant, v. Mel GREENBERG, et al., Appellees.

No. 85-490.

District of Columbia Court of Appeals.

Argued April 10, 1986.

Decided October 29, 1986.

Donald L. Mooers, Washington, D.C., was on the brief for appellant.

Austin F. Canfield, Jr., Washington, D.C., for appellees.

Before PRYOR, Chief Judge, and FERREN and ROGERS, Associate Judges.

ROGERS, Associate Judge:

Appellant Margaret M. Bailey brought suit on January 27, 1984, against appellees Mel Greenberg and the Bradford Company (hereinafter Greenberg) for negligence and damages resulting from injuries she had suffered after falling on Greenberg's property on July 30, 1980. She alleged Greenberg had misrepresented the identity of his insurer, and, through his agent insurance company, lulled her into not filing suit earlier, and so had damaged her "in a substantial amount yet to be determined." The trial court granted summary judgment to Greenberg on the ground that Bailey's cause of action was barred by the statute of limitations. D.C.Code § 12-301(8) (1981). We reverse.

Viewing all inferences that can be drawn favorably to Bailey,¹ the evidence showed that she fell and injured her left foot on July 30, 1980, while looking for her real estate clients at the Lonsdale Apartments. Shortly after her fall, Bailey ascertained that Greenberg was the owner of the Lonsdale Apartments and informed him about her injuries. He told her to contact the Insurance Company of North America, saying "INA will pay the damages incurred in the accident." Bailey contacted INA and received insurance claim forms from INA on September 3, 1980. On October 3, 1980, she returned the completed forms along with her physician's report. INA assigned her a claim number, and told her that her claim would be processed and payment made.

Approximately two years later, Bailey retained attorney Donald L. Mooers to pursue her insurance claim. Mooers wrote Greenberg on December 31, 1982, to inquire about the status of Bailey's claim. As a result, Mooers received several telephone calls from INA employees "assuring [him] that [Bailey's claim] was being routinely reviewed and processed by INA for payment of [her] claims." On April 9, 1983, he wrote a certified letter to INA attaching a second physician's report regarding a subsequent fall by Bailey as a result of the July 30 fall, and was again assured by INA that Bailey's claim was being processed for payment. However, on May 26, 1983, INA informed Mooers that Bailey's claim file had been misplaced and it was necessary to obtain a duplicate file from the Philadelphia office "so that [her] claims could be finalized and payment made to her." Thereafter, Mooers spoke with INA employees on several occasions; each time he was told that the duplicate file had not yet been received, but that "INA did recognize [Bailey's claims] for her injuries and that payment would be processed as soon as the duplicate file was received from the INA Philadelphia office." His offer to submit a copy of his entire file to INA was rejected as not necessary.

By letter dated August 2, 1983, INA informed Mooers it was not Greenberg's insurer on July 30, 1980, the day Bailey fell, and rejected Bailey's insurance claim. Bailey filed suit against Greenberg on January 27, 1984. In February 1984, Greenberg's attorney wrote Mooers that the proper insurance company to defend Bailey's suit was still being determined. Greenberg stated in his May 1984 answers to Bailey's interrogatories, that INA was his insurer and his policy with INA ran from March 30, 1980 through March 30, 1981.²

I

An action alleging negligence and seeking damages for personal injury must be brought within three years of the time the action accrued. Burns v. Bell, 409 A.2d 614, 615 (D.C. 1979); D.C.Code § 12-301(8). "In the more commonplace negligence actions, where the fact of injury is readily discernible, the cause of action accrues when the injury occurs." Burns v. Bell, supra, 409 A.2d at 615.

Bailey fell on Greenberg's property on July 30, 1980. She was immediately aware of her injury; the pain in her foot and leg prevented her from moving from the place she had fallen for "some time." Her physician x-rayed her foot the following day and informed her that she had "a fractured left foot and other injuries." Since her fall she has been unable to climb stairs and to continue working as a real estate agent. Therefore, barring circumstances which would permit her to claim that either the statute of limitations was tolled or Greenberg is estopped from asserting it, Bailey's right to sue him for negligence expired on July 30, 1983.³ See William J. Davis v. Young, 412 A.2d 1187, 1191-92 & n. 15 (D.C. 1980).

II

Bailey contends that Greenberg, through INA, "lulled" her into not filing suit within the three-year limitation period through "the appearance that it was processing her claims for payment, without the necessity of litigation (at INA's request)." In Hornblower v. George Washington University, 31 App.D.C. 64 (1908), the Court of Appeals for the District of Columbia Circuit held that a defendant cannot assert

the bar of the statute of limitations, if it appears [the defendant] has done anything that would tend to lull the plaintiff into inaction, and thereby permit the limitation prescribed by the statute to run . . . [The] defendant must have done something that amounted to an affirmative inducement to plaintiffs to delay bringing action.

Id. at 75.

Hornblower and succeeding cases in his jurisdiction⁴ have interpreted this principle narrowly. Thus, in Hornblower, the defendant had incurred a substantial debt to plaintiffs and plaintiffs, according to their counsel's opening statement to the jury, being reluctant to file suit and thereby make public that defendant was not paying its bills, obtained a promise from the defendant to submit the matter to arbitration. Id. at 66. The defendant sent plaintiffs a letter informing them that the bill had been submitted for adjustment. At the close of plaintiffs' counsel's opening statement, the trial court directed a verdict for the defendant. On appeal the court affirmed, holding that plaintiffs had caused the delay and inaction and there was no evidence to show the defendant made any promise or did any act amounting to an estoppel. The court rejected plaintiffs' assertion the letter brought the case within English and American decisions finding an estoppel.

A careful examination of the decisions cited discloses that in each case the writing relied upon acknowledged a debt due from the writer. This seems to be the test. There must be some statement that is equivalent to an acknowledgement of indebtedness. In fact, the rule announced in this country seems to go further and require that there shall not only be an acknowledgement of indebtedness, but a promise to pay.

Id. at 73. The court also held the plaintiffs failed to show the agreement to submit to arbitration had induced them not to file suit since they "took no steps toward having the matter submitted, and did not insist upon the defendant's submission . . ." and made "no affirmative showing the defendant did anything to prevent the arbitration." Id. at 75.

Similarly, in Grass v. Biker, 135 A.2d 153 (D.C. 1957), the court, in reviewing an appeal from a directed verdict, rejected a claim of estoppel or waiver where the defendant acknowledged the debt in writing by listing it as a liability on a report filed with the Securities & Exchange Commission, and orally by saying "he had other uses for the money and just couldn't pay [the plaintiff]." Id. at 153, 154. This evidence was insufficient to estop the defendant from pleading the statute, because

[a]t most it represents a bare verbal promise to pay the debt at a vague future time with an implied request for forbearance on the part of [the plaintiff] until [the defendant] could secure more funds. [The defendant] never agreed to waive the statute nor did he ask [the plaintiff] to refrain from bringing suit.

Id. See also Brown v. Lamb, supra, 134 U.S.App.D.C. at 316, 414 F.2d at 1212 (no estoppel from raising bar of statute of limitations where attorney could not have reasonably relied on client's informal assurances for several years that legal fees would be paid).

The cases in which this court has found lulling also are illustrative. In William J. Davis, Inc. v. Young, supra, 412 A.2d 1187, the defendant-employer reduced the plaintiff-employee's salary by decreasing the recorded number of hours worked following an increase in the minimum wage. The plaintiff was unaware of the reduction, although his pay stub reflected the decrease in hours, because he had focused only on the total amount of his wages, which never decreased. The court held the defendant's affirmative actions in advising the plaintiff, an "unsophisticated employee," that it was unnecessary to report the hours he worked and in not informing him of the increase in the minimum wage or the decrease of his hours, lulled the plaintiff into not filing suit until part of his back wages claim had been barred by the statute of limitations. Id. at 1192-93. In McCloskey & Co. v. Dickinson, supra, 56 A.2d at 444, on which Bailey relies, the court held the defendant-employer had lulled the plaintiff-employee by informing him that his claim for overtime pay had been "finally settled by the Wage & Hour Division and a report made to the Maritime Commission[, and] that the company was awaiting their approval `so that payments can be made.'" The defendant promised to notify the plaintiff of the Commission's action, but never did. The court found it entirely reasonable for the plaintiff to rely on the words and conduct of defendant and not file suit while the Division and Commission were considering his case. Thus, McCloskey falls within the guidelines enunciated by Hornblower: there had been an acknowledgement of indebtedness and (virtually) a promise to pay.

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