Paramo v. Edwards, 37A04-8802-CV-55
| Decision Date | 07 August 1989 |
| Docket Number | No. 37A04-8802-CV-55,37A04-8802-CV-55 |
| Parties | Jesus PARAMO and Santa Paramo, Appellants (Plaintiffs Below), Foss, Schuman, Drake & Barnard, doing business in Indiana as Cohen, Foss, Schuman & Drake, Intervenor Below, v. Roger D. EDWARDS, Artim Transportation Systems, Inc., and Steel and Machinery Transport Co., Inc., Appellees (Defendants Below). |
| Court | Indiana Appellate Court |
Carmen A. Fernandez, Kowalski, Szarmach & Fernandez, East Chicago, for appellants.
Peter C. Bomberger, Friedrich, Bomberger, Tweedle & Blackmun, P.C., Highland, for intervenor-appellant.
Mark D. Gerth, Kightlinger & Gray, Indianapolis, for appellees.
Jesus and Santa Paramo, plaintiffs below, appeal the summary judgment favoring defendants below, Roger Edwards, Artim Transportation Systems, Inc., (AIE), and Steel and Machinery Transport Co., Inc. We reverse and remand.
Does a genuine issue of material fact exist as to whether an agreement between AIE and the Paramos was reached which provided that AIE would not use the statute of limitations defense.
On or about September 6, 1983, the Paramos sustained personal injury and property damage when they were rear-ended by a tractor truck and semi-trailer driven by Edwards while he was in the employ of Artim Transportation Systems, Inc., a corporation subsequently acquired by Steel and Machinery Transport Company, Inc. All three are appellees and were insured by AIE.
About a year after the accident, the Paramos obtained counsel to negotiate a personal injury and property damage settlement with AIE. The Paramos' counsel, an attorney with Cohen, Foss, Schuman & Drake, conducted settlement negotiations with AIE before and after the statute of limitations ran.
On or about July 23, 1985, the Paramos' counsel told AIE that "he thought it would be unwise to file suit and incur litigation expenses" now. (See R. 8). "He and the adjuster agreed that no lawsuit would be required as long as the parties remained in contact with one another and due diligence was used to obtain the information necessary" to settle. (See R. 8). According to the Paramos' counsel, he and the AIE adjuster "agreed not to file suit until all efforts at settlement had been exhausted." (See R. 8).
On August 29, 1985, before the statute of limitations ran, the property damage claim was settled and paid by AIE to the Paramos. At this time, AIE also requested all medical bills which were relevant to the personal injury claim. Personal injury settlement negotiations continued for several weeks after the statute ran. On October 31, 1985 (after the statute ran), the Paramos' counsel made settlement demands to AIE. On December 16, 1985, AIE informed the Paramos that AIE would rest on the affirmative defense of the statute of limitations and would not involve itself in any further settlement negotiations.
On December 27, 1985, Paramos' counsel filed a complaint for the Paramos' personal injuries. AIE countered with a motion to dismiss based on the statute defense. The Paramos then filed additional evidence with the trial court alleging that an oral agreement and settlement negotiations had occurred which equitably estopped AIE from using the statute of limitations defense.
The Paramos obtained other counsel, Carmen Fernandez, and sued Cohen, Foss, Schuman & Drake for legal malpractice based on their failure to file the Paramos' complaint before the statute ran. On February 8, 1988, Cohen, Foss, Schuman & Drake joined the Paramos' complaint as an intervening party.
The trial court granted AIE's motion for dismissal, but treated it as a motion for summary judgment. The Paramos now appeal the granting of AIE's summary judgment.
Motions for summary judgment are properly granted only when the pleadings and all other matters of record reveal that there is no genuine issue of a material fact and that the moving party is entitled to judgment as a matter of law. Barnd v. Borst (1982), Ind.App., 431 N.E.2d 161, 165. To decide whether such an issue exists, the court must accept as true those facts alleged by the nonmoving party and resolve any doubt against the moving party. Id. at 165.
We hold that there remains a genuine issue of material fact as to whether an agreement between AIE and the Paramos was reached that AIE would not use the statute of limitations defense. Once this question of fact is determined, then the trial court may reach the issue of whether equity should step in to disallow AIE's use of the statute of limitations defense.
It is true that there was no duty for AIE to admonish the Paramos or their counsel that the statute of limitations was about to run. And, without a duty, equity will usually not step in to estop AIE from using the statute as a defense. Collins v. Dunifon (1975), Ind.App., 323 N.E.2d 264, 267. But, a party may, "by express agreement or through his conduct, place himself in a position where he cannot later assert the expiration of a statute of limitation as a defense." Martin v. Levinson (1980), Ind.App., 409 N.E.2d 1239, 1242. The Paramos admit that there was no written agreement between AIE and themselves. However, they assert and provide evidence that an oral agreement was made. AIE, in turn, does not present any evidence that rebuts the allegation that such an oral agreement was made.
The Paramos contend that "it may reasonably be inferred that the defendant had promised not to interpose the defense of limitations." The Paramos support their contention with their counsel's affidavit (See R. 8). On July 23, 1985, their counsel told an AIE adjuster during a telephone conversation "that he thought it would be unwise to file suit and incur litigation expenses on a claim that might have either great value or small value...." The affidavit then states, (See R. 8.)
We note that the record fails to show that the Paramos' counsel explicitly asked AIE to agree not to use a statute of limitations defense should the negotiations continue past the two-year limitation deadline. Also, the record does not reflect that AIE explicitly told the Paramos' attorney that AIE would waive the defense. However, these factors alone are not dispositive.
The Paramos next contend that the "only reasonable conclusion that can be drawn from the fact that negotiations did continue after the limitations period had passed is that the adjusters themselves believed that they had agreed not to assert the statute of limitations." Even though actions the adjusters took after the statute ran do not resolve the issue, because only actions taken before the statute ran could have affected the Paramos' belief regarding an alleged agreement made at that time to waive the statute, such actions do reflect AIE's intentions.
The Paramos then argue that "even if the adjusters did not expressly promise not to assert the defense, they requested that suit not be filed pending the negotiations." The Paramos support this argument by reference to the Record, p. 8, which includes the quotation from their counsel's affidavit that "[h]e and the adjuster agreed that no law suit would be required as long as the parties remained in contact with one another...." Even though the affidavit does not include AIE's direct request for the Paramos not to file suit, such a request may reasonably be inferred.
The Paramos then refer to Continental Insurance Company v. Thornburg (1966), 141 Ind.App. 554, 219 N.E.2d 450, a case allowing invocation of equitable estoppel to disallow an insurance company from asserting a statute of limitations defense when the insured had employed counsel and no written waiver agreement was made. In Continental, an attorney negotiated a settlement with an insurance company for its injured client. The insurance policy contained a twelve (12) month limitation period within which an insured must file suit against the insurer after an injury. The insured's negotiations, via his attorney, were in full swing when the twelve month period neared its end and the insurer wrote a letter to the insured's attorney, which stated:
In reply to your [June 28, 1960 demand] letter ... this claim was investigated ... and we are asking our adjuster to contact you ... to review this claim....
This court held that the content of the June 28, 1960 letter had "only one reasonable interpretation as a matter of law": the twelve month limitation period was suspended from the time the insurer received the demand letter until the adjuster contacted the insured to discuss the claim as the letter promised. Thus, about three months were tacked onto the end of the twelve (12) month limitation period. The Continental rule may be applicable here even though the Continental limitation period was a contract term and not a law, as is the statute of limitations. The statements the Paramos' attorney referred to in his affidavit may suspend the limitation period. However, a question of fact remains as to whether an agreement was actually reached.
We reverse summary judgment and remand for trial.
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