Shinabarger v. United Aircraft Corporation, 344
| Decision Date | 13 July 1967 |
| Docket Number | No. 344,Docket 30758.,344 |
| Citation | 381 F.2d 808 |
| Parties | George W. SHINABARGER, Plaintiff-Appellant, v. UNITED AIRCRAFT CORPORATION and Liberty Mutual Insurance Company, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Herbert Watstein, Watstein & Watstein, Bristol, Conn. (Julius Watstein, Bristol, Conn., on the brief), for appellant.
John D. Fassett, New Haven, Conn. (William J. Doyle and Wiggin & Dana, New Haven, Conn., on the brief), for appellees.
Before LUMBARD, Chief Judge, and SMITH and FEINBERG, Circuit Judges.
Plaintiff in a personal injury action against United Aircraft Corporation and its liability insurer, Liberty Mutual Insurance Company, appeals under F.R. Civ.P. 54(b) from an order of the United States District Court for the District of Connecticut, William H. Timbers, Chief Judge, granting summary judgment of dismissal of the action against defendant United Aircraft, 262 F.Supp. 52. We affirm as to counts one, three, four and six; reverse as to counts two and five.
On the appeal from granting of the motion we must take the allegations of plaintiff's affidavits as true. Plaintiff, employee of a trucking company, was injured while delivering helicopter rotor blades for overhaul at United Aircraft's Bridgeport, Connecticut, Sikorsky plant, when a heavy stack of boxes containing blades tipped over as it was being removed from a trailer by United employees, pinning plaintiff against the side of the trailer. A personal injury claim was promptly made by Michigan counsel and investigated by Liberty, United's insurance carrier in Michigan, where plaintiff was under treatment. Settlement negotiations were carried on, Liberty admitting that there was liability, and promising to pay plaintiff's damages, but both sides awaiting the progress of plaintiff's physical recovery.
After the one-year Connecticut negligence limitations period had run, Liberty declined to pay, asserting that United was not solely liable. Suit was thereafter brought in Connecticut by Connecticut counsel. United interposed the defense of the statute of limitations, Conn. G.S.A. § 52-584, which was upheld on United's motion for summary judgment.
Plaintiff endeavored to avoid the bar of the statute by pleading wilful and intentional injury, breach of contract of care in unloading, fraud, waiver and estoppel to plead the negligence limitation, and contract to settle. The court found that there was no genuine issue as to any material fact and therefore granted summary judgment on United's motion, dismissing the action as to it under Dressler v. M. V. Sandpiper, 331 F.2d 130 (2d Cir. 1964).
We need not reach the question of whether an issue exists as to estoppel of United to rely on the limitations defense so far as the first, third and fourth counts are concerned.1 Summary judgment was correct as to the first count, sounding in wilful and intentional tort, for there is no indication in the pleadings of any facts which could establish any purpose to injure the plaintiff on the part of United's employees. Counts three and four rely on a theory that the tariff under which the blades were carried included a promise, enuring to the benefit of plaintiff to use care in unloading. The court found no such contract, and with this we agree.
The second count (as well as counts three and four) is barred by the one-year negligence limitation unless there is an estoppel or waiver by United Aircraft because of Liberty's actions and misrepresentations. The court found that plaintiff's attorney's reliance on Liberty's promise to pay was not reasonable and failure to start suit in such reliance no basis for any estoppel of United. It did not pass upon the question of agency of Liberty or power to bind United in the negotiations.2
We disagree with the court's ruling on the issue of waiver or estoppel. In holding that Liberty's actions, including a request for continued cooperation, could not be construed to imply a request not to bring suit, and in finding that Howard's reliance was not reasonable, we think the court has determined material issues which should be resolved on trial. If the representations were in fact made, as we must assume on this motion, a trier might find that Howard, plaintiff's Michigan attorney, was not...
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...party." Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); see also Shinabarger v. United Aircraft Corp., 381 F.2d 808, 810 (2d Cir. 1967). Furthermore, when the factual allegations in the pleadings of the party opposing summary judgment are support......
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