Collins v. Dunifon

Decision Date18 February 1975
Docket NumberNo. 3--873A108,3--873A108
Citation163 Ind.App. 201,323 N.E.2d 264
PartiesWalton L. COLLINS, Plaintiff-Appellant, v. Jack K. DUNIFON and Gasoline Equipment Service Company, Inc., Defendants-Appellees.
CourtIndiana Appellate Court

Ronald L. Sowers, M. Robert Benson, Torborg, Miller, Moss, Harris & Sowers, Fort Wayne, for plaintiff-appellant.

William F. McNagny, Barrett, Barrett & McNagny, Fort Wayne, for defendants-appellees.


On January 6, 1969, the appellant (Collins) was injured in an automobile collision with a vehicle driven by appellee Dunifon, who was alleged at the time to have been acting as an employee of the appellee Gasoline Equipment Service Company, Inc. (the defendants).

Sometime prior to August 31, 1970, Collins employed an attorney to bring an action for his injuries. 1 Although the attorney engaged in correspondence with the defendants' insurance carrier, no suit was commenced until September 21, 1971. At that time, defense counsel promptly asserted the statute of limitations as an affirmative defense and moved for summary judgment.

Summary judgment was originally granted in May 1972, but on motion, was subsequently set aside and permission was granted to Collins to file opposing affidavits. In March 1973, the motion was again submitted and granted.

On appeal, Collins asserts the existence of two genuine issues of material fact, either of which, if resolved in his favor, would avoid the statutory bar. These are estoppel and the alleged mental incompetence of Collins.

The defendants respond that no basis for estoppel appears, and that it was the negligence of Collins' counsel rather than any alleged mental disability that permitted the statute to expire.


On August 31, 1970, Collins' attorney wrote the defendant company and advised them of his employment. In this letter he suggested that if their representative was willing to discuss settlement, the representative should contact him.

On September 17, the company's insurance carrier replied by letter, stating:

'Yours of August 31st to Gasoline Equipment Service Co. has been forwarded to the undersigned. Kindly forward your claim properly documented with verified bills, medical reports, and your evaluation for our early attention.

We will be happy to discuss the matter with you fully upon receipt of the above.'

On September 22, Collins' attorney wrote to the carrier, supplied information supporting some of the special damages, and advised the carrier that he was not in a position to evaluate the total claim. This letter concluded with:

'I will be in touch in the immediate future concerning the final analysis on this matter.'

The record discloses no other contacts between the parties until the end of March 1971, although the accident had occurred January 6, 1969. On March 30, the attorney wrote to the carrier again. This letter set out additional information on special damages. It also contained the assertion that the attorney was 'relying upon your indication of desire to proceed with settlement negotiations on this matter, and it is for the reason of our moratorium . . ..'

On April 1 the carrier replied that there had been no moratorium beyond the statute and their file had been closed.

After another letter dated August 17, to which he received the same response, the attorney filed suit on September 21.

We are, of course, cognizant of the requirement that in reviewing the propriety of a summary judgment, the materials on file are to be liberally construed in favor of the opponent of the motion, and any doubt as to the existence of a genuine issue of material fact must be resolved against the proponent of the motion. Podgorny v. Great Central Insurance Co. (1974), Ind.App., 311 N.E.2d 640; Doe v. Barnett (1969), 145 Ind.App. 542, 251 N.E.2d 688.

Furthermore, neither the defendants nor this court dispute that a party may, by express agreement or course of conduct, place himself in a position where he will not be permitted to assert the expiration of a statute of limitations as a defense. See, e.g. Marcum v. Richmond Auto Parts Co. (1971), 149 Ind.App. 120, 270 N.E.2d 884.

However, one of the necessary elements to do so is that there be conduct on the part of the party to be charged which is calculated to lead the other party to inaction. Erie-Haven, Inc. v. First Church of Christ (1973), Ind.App., 292 N.E.2d 837; Marcum, supra. For silence to satisfy the conduct requirement, there must be not only opportunity to speak, there must be an imperative duty to do so. French v. National Refining Co. (1940), 217 Ind. 121, 26 N.E.2d 47; Erie-Haven, Inc., supra.

Here there was nothing in the relationship of the parties or in their dealings imposing upon the defendants a duty to speak. The carrier's indication of a mere willingness to discuss settlement with Collins' attorney, at a time several months before the expiration of the statute of limitations, must be deemed as a matter of law insufficient to constitute the basis for any reasonable inference that the carrier would not rely upon the statute so as to mislead or lull Collins into inaction. (For an example of affirmative conduct that would support such an inference, see Marcum, supra.)


IC 1971, 34--1--2--5 (Burns Code Ed.), which is also applicable to Collins' claim for personal injuries, provides:

'Any person, being under legal disabilities when the cause of action accrues, may bring his action within two (2) years after the disability is removed.'

In addition, the miscellaneous definitions section of the statute provides: 2'(Third) The phrase 'of unsound mind' includes idiots, noncompotes (non compos mentis), lunatics and distracted persons.'

'(Sixth) The phrase 'under legal disabilities' includes persons within the age of twenty-one (21) years, or of unsound mind, or imprisoned in the state's prison, or out of the United States.'

IC 1971, 34--1--67--1 (Burns Code Ed.)

Prior cases have noted the requirement that the disability exist when the action accrues, Walker v. Hill (1887), 111 Ind. 223, 12 N.E. 387; and that our statute for relief does not toll the basic statute. Instead the basic statute continues to run, but IC 1971, 34--1--2--5, in effect, simply renders its running inapplicable by providing a special limitation, or grace period, of two years after the disability is removed. Chaffin v. Nicosia (1974), Ind., 310 N.E.2d 867; Walker, supra.

In support of his contention that there is a genuine issue as to whether he is entitled to the benefits of IC 1971, 34--1--2--5, Collins points to seven affidavits he filed in opposition to the defendants' motion.

He also urges us to consider an eighth affidavit which was filed in conjunction with his motion to correct errors. This affidavit was a statement from a Fort Wayne physician voicing his opinion of Collins' incompetence. We find this affidavit is not properly before the court and presents nothing for our consideration. Indiana Rules of Procedure, Trial Rule 59(D) does provide:

'When a motion to correct errors is based upon evidence outside the record, the cause must be sustained by affidavits showing the truth thereof served with the motion.'

This, however, does not mean that a party may simply offer by affidavit, in connection with his motion to correct errors, evidence which he neglected to present at the prior proceeding. Rather, the provision provides the basis for disclosing on the record matters constituting a basis for correction of error which occurred during the prior proceedings, but were not reflected in the record. Accord: Jackson v. Beard (1970), 146 Ind.App. 382, 255 N.E.2d 837, 4 Harvey & Townsend, Indiana Practice 131, 132. Of course, the provision also permits disclosure of newly discovered evidence by affidavit pursuant to TR 59(A)(6). However, Collins' eighth affidavit does not purport to assert that the doctor's opinion could not, with reasonable diligence, have been discovered and produced within the time allowed by the rules for filing affidavits in opposition to a motion for summary judgment.

The seven affidavits filed in connection with the second submission of the motion for summary judgment may be summarized as follows:

David Sorg, a physician, stated that he had examined Collins on October 23, 1969. It was his clinical impression that Collins was suffering from significant emotional disability or impairment at that time. He seriously questioned whether Collins was able to properly manage his affairs prior to and subsequent to that date.

Galen Huffman, a physician with a specialty in psychiatry, stated that he examined Collins on October 29, 1969. It was his dignostic impression that Collins suffered from a possible conversion reaction.

Ursie Longardner, the mother of Collins' deceased wife, stated that Collins had changed after his wife died in February 1966. She stated that, in her opinion, based upon what she knew of the family and the way Collins acted, she did not think Collins 'was in his right mind and after (Mrs. Collins) died (Collins) did not try to manage his affairs and everything went to pot.'

The other four affidavits were from an attorney who had represented contract sellers in securing a termination of Collins' contract to buy his home; the employment supervisor at Collins' old employer; a former next-door neighbor; and a welfare worker who had been involved with the Collins family. Each of these affidavits purported to relate facts indicating that Collins' actions in his work, his home, and in meeting his obligations changed sometime after his wife died. However, none voiced opinions of incompetence except the welfare worker who stated, 'It was apparent from my investigation that Walton Collins had been unable to carry on in the operation of his home and the management of his family after the death of his wife, Barbara, in February, 1966.'

In treating this issue, the court entered the following...

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