Cook v. Smith

• Decision Date: 10 April 1984
• Docket Number: No. 05-82-01410-CV,05-82-01410-CV
• Citation: Cook v. Smith, 673 S.W.2d 232 (Tex. App. 1984)
• Parties: Kathleen COOK, Appellant, v. Volney & Barbara D. SMITH, Appellees.
• Court: Texas Court of Appeals

Page 232

673 S.W.2d 232

Kathleen COOK, Appellant, v. Volney & Barbara D. SMITH, Appellees.

No. 05-82-01410-CV.

Court of Appeals of Texas Dallas.

April 10, 1984.

Rehearing Denied May 14, 1984.

Edwin V. King, Dallas, for appellant.

Gerald R. Powell, Byron L. Falk, Dallas, for appellees.

Before AKIN, VANCE and ROWE, JJ.

AKIN, Justice.

Kathleen Cook sued Volney and Barbara Smith (a husband and wife) alleging that she had been injured as a result of the negligent operation of a motor vehicle owned by Volney and driven by Barbara Smith. The trial court rendered summary judgment in favor of the Smiths. Cook prosecutes this appeal contending that the summary judgment was improper as to Barbara Smith because a fact issue was presented concerning whether Barbara Smith was estopped to plead limitations. We agree that Cook presented summary judgment evidence which raised a fact issue as to estoppel. Thus, we reverse and remand.

The traffic accident out of which this suit arose occurred on March 7, 1980. Cook filed suit against Volney Smith on March 5, 1982. In answering Cook's petition, Volney Smith filed a motion for summary judgment. The motion and supporting affidavit concede that Volney Smith was the owner of the vehicle which struck Cook but deny that he was the operator of the vehicle at the time of the accident. Apparently, in response to this motion for summary judgment, on May 20, 1982, Cook filed her First Amended Original Petition, which named Barbara Smith as a defendant to the suit, alleging that she was the operator of the vehicle which struck Cook and also alleging that Volney Smith had negligently entrusted the vehicle to Barbara Smith. Barbara Smith responded that any claim against her was barred by limitations and filed a motion for summary judgment based on limitations. Her motion was heard with Volney Smith's second motion for summary judgment. These motions and supporting affidavits asserted that Volney Smith could not, as a matter of law, negligently entrust the vehicle in question to Barbara Smith. Barbara Smith asserted that the cause of action against her was barred by limitations and that she had been out of the state only two months during the two-year statute of limitations period after the accident. Cook responded with summary judgment evidence which established that Barbara Smith was estopped from pleading the statute of limitations due to the actions of John Harris who was the adjuster handling Cook's claim for the Smiths' insurance company. Cook's response also alleged that the actions of Harris constituted fraudulent concealment of the name of the driver which was not discovered until March 8, 1982, when Volney Smith filed his motion for summary judgment.

After a hearing on the motion for summary judgment and a subsequent letter brief filed by the Smiths, the trial court concluded that no issue of material fact existed and granted summary judgment to the Smiths. On appeal, Cook does not attack the validity of the summary judgment granted Volney Smith. Thus, we limit our discussion solely to the propriety of the judgment granted Barbara Smith.

Cook contends that Smith is estopped from pleading limitations because she delayed filing suit based on repeated representations that her claim would be paid made by the adjuster for Smith's insurance company. The estoppel, in Cook's view, arises from the following actions of the adjuster: (1) he paid Cook's property damage claim; ¹ (2) he sent correspondence to her indicating quickly as possible; (3) he requested certain documents from her, representing that the documents were needed prior to negotiating a settlement; and (4) he requested documents from her doctor about her medical condition. Cook's affidavit stated that representations were made to her over the telephone by the Smiths' insurance company "that I [Cook] would receive compensation for the injury sustained by myself just as soon as I had completed doctor's care for said injury." No summary judgment proof was adduced by Smith to contradict the summary-judgment evidence that these representations occurred. Cook's affidavit asserts that she relied on these representations, ignored the advice of family and friends to seek legal counsel, and did not learn until three days before the second anniversary of the accident that she had but two years to bring suit. Upon discovering the applicable limitation period, she contacted an attorney. However, she told the attorney that Volney Smith was the party with whom she had had the accident because that was the name which had been listed as the "insured" on all of the correspondence which she had received from the insurance company.

A plaintiff may invoke equitable estoppel to prevent an opponent from pleading limitations, if the opponent, his agent, or representatives make representations which induce the plaintiff to delay filing suit within the applicable limitations period. Jim Walter Homes, Inc. v. Mora, 622 S.W.2d 878, 880 (Tex.App.--Corpus Christi 1981, no writ). Further, "an adjuster acting for an insurance company may be considered to be the agent of the insured so as to estop the insured from setting up a statute of limitations." Mandola v. Mariotti, 557 S.W.2d 350 (Tex.Civ.App.--Houston [1st Dist.] 1977, writ ref'd n.r.e.). To invoke estoppel, proof must be made of the following elements: (1) a false representation or concealment of a material fact; (2) made with knowledge, actual or constructive, of the facts; (3) to a party without knowledge or the means of knowledge of the real facts; (4) with the intention that it should...