Wabash Grain, Inc. v. Smith, 61A01-9709-CV-321

Decision Date30 September 1998
Docket NumberNo. 61A01-9709-CV-321,61A01-9709-CV-321
PartiesWABASH GRAIN, INC., Appellant-Defendant, v. Robert E. SMITH, Appellee-Plaintiff, v. AMERICAN CAR & FOUNDRY INDUSTRIES, INC., and CSX Transportation Corporation, Defendants.
CourtIndiana Appellate Court
OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

On May 14, 1993, Robert E. Smith suffered personal injuries while inspecting grain in a grain elevator operated by C & S Grain Co., Inc., an Indiana corporation ("C & S of Indiana"). In January of 1994, C & S of Indiana changed its name to Wabash Grain, Inc. ("Wabash Grain"). On May 4, 1995, Smith filed a complaint for damages in the United States District Court for the Southern District of Indiana, Terre Haute Division, which named three defendants, including C & S Grain Co., Inc., an Illinois corporation ("C & S of Illinois").

On June 22, 1995, Smith filed a claim 1 in the Parke Circuit Court, which named Wabash Grain, instead of C & S of Illinois, as a defendant. Specifically, Smith alleged that Wabash Grain was negligent in failing to provide him with safety devices to use during his inspection of the grain elevator. On November 21, 1995, Wabash Grain filed an answer to Smith's complaint in which it raised the statute of limitations as an affirmative defense.

In January of 1996, the parties to the federal lawsuit agreed to file a stipulation of dismissal in the United States District Court, which then dismissed Smith's federal claim. Ten days after that dismissal, Wabash Grain filed a motion for summary judgment in state court. In its motion, Wabash Grain argued that Smith's claim was barred by the applicable statute of limitations and, in the alternative, that it had no duty to provide Smith with safety devices. The trial court denied Wabash Grain's motion for summary judgment. Wabash Grain now brings this interlocutory appeal pursuant to Indiana Appellate Rule 4(B)(6). The dispositive issue presented for review is whether Smith's claim against Wabash Grain is barred by the statute of limitations.

We reverse.

FACTS

At the time Smith incurred his injuries, he was employed as a grain inspector by Southern Illinois Grain Inspection Service ("SIGIS"). SIGIS had contracted with the Federal Grain Inspection Service, a branch of the United States Department of Agriculture, to perform inspections of grain elevators throughout the region.

In 1993, Wabash Grain contacted SIGIS and asked that a grain inspector be sent to a grain elevator that it maintains, but does not own, located in Montezuma, Indiana. 2 SIGIS sent Smith, whom it had employed for approximately six months, to perform the requested inspection. Smith had previously inspected the Montezuma elevator approximately twenty times, and Wabash Grain had not provided Smith with any type of safety equipment during those inspections.

When Smith arrived to inspect the elevator on May 14, 1993, the elevator was already loaded with grain. In order for Smith to take a grain sample, he had to stand on top of the grain hopper car and insert a "probe" into the hopper. 3 During his attempt to remove the probe from the grain hopper, Smith fell approximately fifteen feet shattering both of his ankles and sustaining multiple breaks in each heel. Since the accident, he has undergone more than sixteen surgeries, and amputation of his feet may be necessary due to recurring infections.

On May 4, 1995, Smith filed a negligence action against C & S of Illinois in the United States District Court for the Southern District of Indiana. Documents filed with the Illinois Secretary of State show that Stephen M. Syfrett is the president and director of C & S of Illinois and that Attorney James L. VanWinkle, of McLeansboro, Illinois, is the registered agent. In May of 1995, Van Winkle sent Smith's counsel a letter stating that C & S of Illinois had recently filed Chapter 11 bankruptcy in the United States Bankruptcy Court for the Central District of Illinois and that Smith's claim against it should be dismissed. Soon thereafter, David W. Sullivan entered an appearance in federal court on behalf of C & S of Illinois.

In June of 1995, Smith filed a negligence action in the Parke Circuit Court in which he named C & S of Indiana as a defendant, which by that time had changed its name to Wabash Grain. Stephen M. Syfrett serves as one of three directors for Wabash Grain, and its registered agent is Glenn Colver of Crawfordsville, Indiana. Attorney David W. Sullivan also entered an appearance for Wabash Grain in state court. Ultimately, the parties in the federal action stipulated to a dismissal because "an identical matter" was pending in the Parke Circuit Court.

DISCUSSION AND DECISION
Standard of Review

When reviewing a decision on a summary judgment motion, we apply the same standard as does the trial court. Red Roof Inns, Inc., v. Purvis, 691 N.E.2d 1341, 1343 (Ind.Ct.App.1998), trans. denied. Summary judgment should be granted only when the designated evidentiary material shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). We may only consider those parts of the pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and other matters which have been properly designated by the parties to the trial court for consideration. Id. "Any doubt about the existence of a fact or the inference to be drawn from it is to be resolved in favor of the non-moving party." Trotter v. Nelson, 684 N.E.2d 1150, 1152 (Ind.1997). The defense of a statute of limitations is particularly suitable as a basis for summary judgment. A.M. v. Roman Catholic Church, 669 N.E.2d 1034, 1037 (Ind.Ct.App.1996), trans. denied.

Statute of Limitations

Smith's injuries occurred on May 4, 1993, and he did not file his claim against Wabash Grain in the Parke Circuit Court until June 22, 1995. Thus, Wabash Grain maintains that Smith's claim is barred by the two-year statute of limitations applicable to negligence actions. 4 Smith responds that his claim was timely filed under any one of three alternative theories: (1) Wabash Grain should be estopped from asserting a statute of limitations defense; (2) Smith's claim is timely under Indiana Trial Rule 15(C); or (3) his claim is saved by the doctrine of equitable tolling. We address each argument in turn.

Estoppel

Smith first asserts that principles of estoppel preclude Wabash Grain from raising the statute of limitations as a defense. Smith contends that by and through the signed stipulation of dismissal in federal court, counsel for Wabash Grain, who also represented C & S of Illinois in the federal action, admitted that the two pending lawsuits were "identical." Smith further contends he relinquished his right under Federal Rule of Civil Procedure 15(c) 5 to amend the federal complaint in reliance on defense counsel's representation within the stipulation of dismissal. Smith argues that but for counsel's representation, he would have amended his federal complaint to name Wabash Grain as the proper defendant. The federal court would have then lost jurisdiction due to lack of complete diversity, and Smith's state claim would have been salvaged under Indiana's Journey's Account Statute. 6

Wabash Grain counters that estoppel does not apply because Wabash Grain was not named a party in the federal action. Wabash Grain further argues that because it had raised the statute of limitations as an affirmative defense before the federal action had been dismissed, Smith's contention that he relied to his detriment on the stipulation of dismissal has no merit. We agree with Wabash Grain.

Initially, we note that Smith does not specify which theory of estoppel he relies upon but refers to "principles of estoppel" generally. The substance of his argument combines principles of both equitable and judicial estoppel. Equitable estoppel is available if one party, through its representations or course of conduct, knowingly misleads or induces another party to believe and act upon his conduct in good faith and without knowledge of the facts. Brokaw v. Roe, 669 N.E.2d 1039, 1041 (Ind.Ct.App.1996), trans. denied. The elements of equitable estoppel are: (1) a representation or concealment of a material fact, (2) made by a person with knowledge of the fact and with the intention that the other party act upon it, (3) to a party ignorant of the fact, (4) which induces the other party to rely or act upon it to his detriment. Detrick v. Midwest Pipe & Steel, Inc., 598 N.E.2d 1074, 1079 (Ind.Ct.App.1992). The reliance element has two prongs: (1) reliance in fact and (2) right of reliance. In re Marriage of Murray, 460 N.E.2d 1023, 1026 (Ind.Ct.App.1984). In addition, estoppel exists "only as between the same parties or those in legal privity with them." 31 C.J.S. Estoppel and Waiver § 8 (1996).

In contrast, judicial estoppel prevents a party from asserting a position in a legal proceeding inconsistent with one previously asserted. Shewmaker v. Etter, 644 N.E.2d 922, 931 (Ind.Ct.App.1994), adopted on trans., 659 N.E.2d 1021 (Ind.1995). Specifically, in Tobin v. McClellan, 225 Ind. 335, 346-47, 73 N.E.2d 679, 684 (1947), our supreme court stated:

[I]t is the general rule that allegations or admissions in pleadings in a former action or proceeding will ordinarily estop the party making them from denying their truth in a subsequent action or proceeding in which he is a party to the prejudice of his opponent where the usual elements of estoppel by conduct are present. Also, there must have been a determination of the prior action, or, at least, the allegations or admissions must have been acted on by the court in which the pleadings were filed or by the...

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