Pamela Sue Hook Vs. Carl Frederick Lippolt And The State Of Iowa

IN THE SUPREME COURT OF IOWA

No. 80 / 04–1655

Filed August 29, 2008

PAMELA SUE HOOK,

Appellee,

vs.

CARL FREDERICK LIPPOLT and the STATE OF IOWA,

Appellants.

Appeal from the Iowa District Court for Webster County, Ronald H.

Schechtman, Judge.

On interlocutory appeal from district court’s ruling denying

summary judgment to defendants, defendants argue plaintiff’s claim was

subject to dismissal on statute-of-limitations grounds. REVERSED AND

REMANDED.

Thomas J. Miller, Attorney General, and Joanne Moeller and Mark

Hunacek, Assistant Attorneys General, for appellants.

Tito Trevino of Trevino Law Offices, Fort Dodge, for appellee.

2

TERNUS, Chief Justice.

The appellee, Pamela Hook, brought suit for injuries she sustained

in an automobile accident caused by appellant Carl Lippolt, who at the

time of the accident was working as a volunteer for the Department of

Human Services. After dismissing her initial lawsuit against Lippolt,

Hook filed the present action against Lippolt and the State under the

State Tort Claims Act. See Iowa Code ch. 669 (1999). Both defendants

asserted a statute-of-limitations defense, and Lippolt claimed statutory

immunity. See id. §§ 669.13, .24. The district court denied motions for

summary judgment filed by the defendants, rejecting their argument that

the plaintiff failed to file her claim with the state appeal board within the

time limits established by the governing statute of limitations and

rejecting Lippolt’s claim of statutory immunity. On appeal, the

defendants assert the district court erred because the plaintiff discovered

her cause of action more than two years before filing her administrative

claim, and therefore, this suit is barred. The defendants also argue there

is no evidence to support the plaintiff’s claim the defendants are

equitably estopped from relying on the statute-of-limitations defense

under the doctrine of fraudulent concealment. Finally, Lippolt contends

he enjoys immunity from suit as a matter of law.

Upon our review of the record and the parties’ arguments, we

conclude there is no genuine issue of material fact with respect to

Lippolt’s entitlement to immunity, and therefore, his summary judgment

motion on the plaintiff’s negligence claim should have been granted.

With respect to the parties’ statute-of-limitations defense, we conclude as

a matter of law the plaintiff’s claim was untimely and the defendants are

not equitably estopped from relying on the statute of limitations as a

defense. The district court erred in failing to rule the plaintiff’s

3

negligence claim is barred. Accordingly, we reverse the district court’s

ruling and remand this case for entry of judgment in favor of the

defendants on the negligence count of plaintiff’s petition.

I. Background Facts and Proceedings.

On June 9, 2000, Pamela Hook and Carl Lippolt were involved in a

car accident when Lippolt entered an intersection on a red light and

struck Hook’s vehicle. Hook was injured in the accident. Lippolt, who

was seventy-eight years old, admitted from the beginning that the

collision was his fault. Following the accident, Lippolt’s personal

automobile insurance carrier settled Hook’s property damage claim, but

no agreement could be reached on her personal injury claim.

Consequently, on March 13, 2002, Hook filed suit against Lippolt.

In July 2002, more than two years after the accident, Hook

propounded interrogatories to Lippolt. Lippolt revealed in his answers

that, at the time of the accident, he was using his own vehicle to provide

transportation services for a client of the Department of Human Services

(DHS) as a volunteer for the department.1 The preparation and service of

Lippolt’s interrogatory answers was the first time Hook, Hook’s attorney,

and Lippolt’s attorney were aware of these facts. Thereafter, Lippolt was

permitted to amend his answer to assert an immunity defense under

chapter 669. See id. § 669.24 (providing for immunity from personal

liability for persons performing voluntary services for a state agency).

Lippolt was also allowed to add an affirmative defense based on Hook’s

failure to submit her claim to the state appeal board within two years of

the accident. See id. § 669.13 (requiring claim against state or state

1The plaintiff asked the following interrogatory: “State whether you were acting

within the course and scope of any agency, employment, or service at the time of the

collision and describe the type of relationship of the persons involved.”

4

employee be first presented to state appeal board within two years of

accrual or be “forever barred”). In July 2003, Hook filed a dismissal

without prejudice of her lawsuit against Lippolt. She did not appeal the

district court’s ruling allowing Lippolt to assert the immunity and

statute-of-limitations defenses.

Nearly three years after the accident, on June 3, 2003, Hook filed

an administrative claim with the state appeal board seeking

compensation for her personal injury. After six months passed with no

response from the board, Hook withdrew her claim and commenced the

current lawsuit against Lippolt and the State on January 27, 2004. See

id. § 669.5 (stating that after six months with no response from the

board, claimant may withdraw claim from board’s consideration and file

suit). Hook made two claims in her petition: (1) a negligence claim

against both defendants for the damages she sustained in the June 9,

2000 accident; and (2) a fraudulent misrepresentation claim against

Lippolt based on representations he made to the plaintiff from April 8,

2002, to May 21, 2003, in the first lawsuit. With respect to Hook’s

negligence claim, the defendants asserted a statute-of-limitations defense

in their answers. Lippolt also claimed statutory immunity under section

669.24.

Lippolt filed a motion for partial summary judgment, seeking

summary judgment on Hook’s negligence claim. He asserted his

immunity and statute-of-limitations defenses should be decided in his

favor as a matter of law. The State subsequently filed its own motion for

summary judgment based on the statute of limitations. The plaintiff also

filed a motion for partial summary judgment claiming the statute of

limitations had been tolled by the discovery rule and asking the court to

rule as a matter of law that her administrative claim was timely filed.

5

Although Hook did not contest the fact that Lippolt’s “personal assets

[were immune] from attachment or execution to satisfy any judgment,”

she claimed he was a proper defendant for two reasons. Because the

State would be required to defend and indemnify Lippolt under section

669.21, Hook reasoned that statute anticipates that even volunteers not

personally liable are still proper parties in an action against the State. In

addition, Hook asserted Lippolt’s personal liability insurance policy was

available to satisfy any judgment by virtue of section 669.20,2 and

therefore, it was necessary to include Lippolt as a defendant.

In ruling on these various motions, the district court concluded as

a matter of law that the plaintiff had neither actual nor imputed

knowledge of her cause of action more than two years prior to filing her

administrative claim. Therefore, the court sustained the plaintiff’s

motion for partial summary judgment on the defendants’ statute-of-

limitations defense and overruled the defendants’ summary judgment

motions on this issue. With respect to the immunity issue, the district

court ruled that Lippolt was not personally liable and section 669.20 did

not make Lippolt’s insurer liable. Although the court overruled Hook’s

motion for partial summary judgment on the insurance issue, the court

denied, for unexplained reasons, Lippolt’s motion for partial summary

judgment on his immunity defense. We granted the defendants’

application for interlocutory appeal to review the district court’s

summary judgment rulings.

2Iowa Code section 669.20 states in pertinent part: “Whenever a claim or suit

against the state is covered by liability insurance, the provisions of the liability

insurance policy on defense and settlement shall be applicable notwithstanding any

inconsistent provisions of this chapter.”

6

II. Scope of Review.

Summary judgment rulings are reviewed for correction of errors of

law. Hallett Constr. Co. v. Meister, 713 N.W.2d 225, 229 (Iowa 2006). “To

obtain a grant of summary judgment on some issue in an action, the

moving party must affirmatively establish the existence of undisputed

facts entitling that party to a particular result under controlling law.”

Interstate Power Co. v. Ins. Co. of N. Am., 603 N.W.2d 751, 756 (Iowa

1999).

III. Lippolt’s Immunity.

We begin our review by considering the district court’s ruling

denying Lippolt’s motion for partial summary judgment on Hook’s

negligence claim based on Lippolt’s immunity defense under section

669.24.

A. Statutory Provisions. At the time of the events giving rise to

this lawsuit, chapter 669 required that “any claim as defined in this

chapter” be submitted to the state appeal board for disposition. Iowa

Code §§ 669.3, .5. Section 669.2(3) defines “claim” to include “[a]ny

claim against an employee of the state for money only . . . on account of

personal injury or death, caused by the negligent or wrongful act or

omission of any state employee while acting within the scope of the

employee’s office or employment.” Id. § 669.2(3)(b). An “employee of the

state” is broadly defined to include

agents . . . of the state or any state agency . . . and persons

acting on behalf of the state or any state agency in any

official capacity, temporarily or permanently in the service of

the state of Iowa, whether with or without compensation . . . .

Id. § 669.2(4) (emphasis added). It is important to keep in mind that the

term “employee” as used in chapter 669 includes unpaid volunteers as

well as paid workers.

7

We turn now to the indemnity and immunity provisions of this

statute. At the outset, it is helpful to note the distinction between a right

to be defended and indemnified by the State and immunity—the absence

of personal liability. See Dickerson v. Mertz, 547 N.W.2d 208, 213 (Iowa

1996) (referring to statute providing that state employees “are not

personally liable” for certain claims as granting such employees

immunity). Chapter 669’s indemnity provision is found in

section 669.21, which provides that the State will defend and indemnify

“any employee” against claims falling within chapter 669, subject to

exceptions not pertinent to this case. Iowa Code § 669.21.

Chapter 669 contains two immunity provisions, one covering all

employees and one applicable to volunteers. See id. §§ 669.23, .24. All

employees are granted immunity for exempted claims, i.e., claims that do

not fall within the State Tort Claims Act. See Iowa Code § 669.23

(“Employees of the state are not personally liable for any claim which is

exempted under section 669.14.”); see also id. § 669.14 (exempting

specified claims from the provisions of the State Tort Claims Act). Hook’s

claim is not exempted under section 669.14, so the immunity provided to

employees by section 669.23 does not protect Lippolt from personal

liability for Hook’s damages.

Lippolt’s immunity defense is based on section 669.24, which

grants broader immunity to volunteers:

A person who performs services for the state

government or any agency or subdivision of state

government and who does not receive compensation is not

personally liable for a claim based upon an act or omission

of the person performed in the discharge of the person’s

duties, except for acts or omissions which involve intentional

misconduct or knowing violation of the law, or for a

transaction from which the person derives an improper

personal benefit. For purposes of this section,

8

“compensation” does not include payments to reimburse a

person for expenses.

Id. § 669.24. It is the applicability of this provision that is at issue here.

B. Parties’ Contentions. Although conceding Lippolt provided

services to DHS without compensation, Hook seems to argue Lippolt

cannot benefit from the immunity of section 669.24 due to a related

statute governing DHS volunteers. Iowa Code section 217.13(3) states:

“All volunteers registered with [DHS] and in compliance with

departmental rules are considered state employees for purposes of

chapter 669.”3 It appears the plaintiff contends that, if Lippolt is

considered an employee for purposes of chapter 669, he would not enjoy

the protection from personal liability provided by section 669.24 to

volunteers. Lippolt responds that the legislature surely did not intend to

deprive DHS volunteers of the immunity available to other state

volunteers.

C. Discussion. We conclude Hook’s argument rests on a faulty

premise: that the terms “employee” and “volunteer” are mutually

exclusive under chapter 669. As noted earlier, section 669.2(4) defines

“employee” broadly to include volunteers. Consequently, the fact that

Lippolt may be classified by section 217.13(3) as a state employee for

purposes of chapter 669 does not preclude him from also qualifying as a

volunteer for purposes of that chapter. We believe that, rather than

intending to deprive DHS volunteers of immunity under section 669.24

by its enactment of section 217.13(3), the legislature intended to assume

responsibility under chapter 669 for the torts of persons purporting to

3

Hook does not assert there is any genuine issue of material fact with respect to

whether Lippolt was registered with DHS and in compliance with departmental rules.

Therefore we accept, as do the parties, that Lippolt satisfies the requirements of section

217.13(3) so as to qualify as a “state employee[] for purposes of chapter 669.”

9

act for DHS only if such persons were registered with DHS and in

compliance with departmental rules.

Hook argues that, even if Lippolt is immune under section 669.24,

he may still be sued for negligence in this lawsuit. We disagree. Section

669.24 states that a volunteer “is not personally liable.” Id. § 669.24. If

Lippolt is not liable, there is no legal basis to support Hook’s negligence

suit against Lippolt. For the same reason, Hook’s claim that she is

entitled to sue Lippolt to reach his personal liability insurance must fail.

The ability to sue an individual for damages depends not on the

individual’s purchase of insurance, but on his liability under the law, a

liability Lippolt does not have.

As a final matter, Hook argues the legislature must have

contemplated suit against immune tortfeasors because such tortfeasors

are included within the defense and indemnity provisions of section

669.21, and therefore, she concludes, immune volunteers are subject to

suit. To the extent Hook’s initial premise is accurate, it does not support

her conclusion. Ironically, this lawsuit illustrates why the legislature

would extend a defense and indemnity to immune volunteers.

Notwithstanding Lippolt’s immunity from personal liability, he has been

required to defend this action. Thus, he has benefited from section

669.21 under circumstances not inconsistent with his personal

immunity from suit under section 669.24.

For the foregoing reasons, we conclude Lippolt was entitled to

summary judgment on Hook’s negligence claim based on his statutory

immunity. We now discuss the defendants’ statute-of-limitations

defense.

10

IV. Statute of Limitations—the Discovery Rule.

The governing statute of limitations is contained in Iowa Code

section 669.13, which provides in relevant part:

Every claim and suit permitted under this chapter

shall be forever barred, unless within two years after such

claim accrued, the claim is made in writing to the state

appeal board under this chapter. The time to begin a suit

under this chapter shall be extended for a period of six

months from the date of mailing notice to the claimant by

the state appeal board as to the final disposition of the claim

or from the date of withdrawal of the claim from the state

appeal board under section 669.5, if the time to begin suit

would otherwise expire before the end of such period.

....

This section is the only statute of limitations

applicable to claims as defined in this chapter.

Id. § 669.13. We have previously held the discovery rule is applicable to

a state tort claim under chapter 669. See Callahan v. State, 464 N.W.2d

268, 272 (Iowa 1990). Under the discovery rule, “the statute of

limitations does not begin to run until the injured person has actual or

imputed knowledge of all the elements of the cause of action.” Franzen v.

Deere & Co., 377 N.W.2d 660, 662 (Iowa 1985). With respect to imputed

knowledge, we have said:

In addition, the person is charged with knowing on the

date of the accident what a reasonable investigation would

have disclosed. The period of limitations is the outer time

limit for making the investigation and bringing the action.

The period begins at the time the person is on inquiry notice:

[L]imitations begin to run when a claimant

gains knowledge sufficient to put [the claimant]

on inquiry. As of that date, [the claimant] is

charged with knowledge of facts that would have

been disclosed by a reasonably diligent

investigation. The beginning of limitations is not

postponed until the end of an additional period

deemed reasonable for making the investigation.

11

Franzen, 377 N.W.2d at 662 (quoting Lutheran Hosp. v. Levy, 482 A.2d

23, 27 (Md. Ct. Spec. App. 1984)) (emphasis added); accord Kendall/Hunt

Publ’g Co. v. Rowe, 424 N.W.2d 235, 243 (Iowa 1988) (“[T]he limitations

period begins when a claimant has knowledge sufficient to put that

person on inquiry notice.”).

Based on these principles, the initial step in our analysis is to

determine whether the undisputed facts establish as a matter of law

when Hook had actual knowledge of the elements of her claims against

Lippolt and the State or when she knew enough to be charged with a

duty to inquire. If we conclude Hook had enough knowledge to be

charged with a duty to investigate more than two years prior to filing this

suit, we must then examine whether, as a matter of law, a reasonably

diligent investigation would have disclosed the elements of her claims. If

a reasonably diligent investigation would have disclosed the elements of

her claims against Lippolt and the State, she is charged with that

knowledge as of the date her duty to investigate arose.

A. Discovery of Claim Against Lippolt. Although we have

already determined that Lippolt has no personal liability for Hook’s

negligence claim, it is helpful to our analysis of the State’s statute-of-

limitations defense to begin with a review of Hook’s discovery of her claim

against Lippolt. It is undisputed that, on June 9, 2000, Hook knew the

automobile she was driving was hit by a car driven by Lippolt when he

entered an intersection against a red light. Hook also knew immediately

that she was injured and that her car was damaged. Lippolt did not

deny that he was at fault for the accident. There is no question under

the undisputed facts in the record that Hook had actual knowledge of all

the elements of her claim against Lippolt immediately after the June 9,

12

2000 accident, substantially more than two years before she filed her

claim with the state appeal board on June 3, 2003.

It is true that Hook did not know within two years of the accident

that Lippolt was acting as a state volunteer at the time of the collision.

Knowledge of Lippolt’s volunteer status was not required, however, in

order to commence the statute of limitations because that fact was not

an element of Hook’s claim. See Franzen, 377 N.W.2d at 662 (requiring

“actual or imputed knowledge of all the elements of the cause of action”

(emphasis added)). Lippolt’s volunteer status simply triggered special

prerequisites for filing suit against Lippolt. Hook had the statutory two-

year period to determine the appropriate legal channels through which to

pursue her claim.

We conclude as a matter of law Hook’s claim against Lippolt

accrued on June 9, 2000. Because she did not file her administrative

claim against Lippolt within two years, Hook’s claim against Lippolt is

barred unless Lippolt is equitably estopped from asserting the statute as

a defense, a question we address later in this opinion.

B. Discovery of Claim Against State. As we have discussed,

Hook had actual knowledge of her injury and that it was caused by

Lippolt’s negligence on the date of the accident. She did not have actual

knowledge that the State was vicariously liable for Lippolt’s conduct until

more than two years later. The State claims, however, that Hook had

imputed knowledge of that fact as of June 9, 2000, under the concept of

inquiry notice, and consequently, the limitations period against the State

commenced on the date of the accident.

The plaintiff does not dispute that she had actual knowledge of her

claim against Lippolt immediately after the accident, but she disagrees

that she was on inquiry notice of her claim against the State based upon

13

this knowledge. Hook claims she had no duty to pursue any

investigation because she had no reason to “explore[] whether Lippolt

was really liable” or to “question whether [Lippolt] had immunity.” But

the issue before us with respect to Hook’s discovery of her claim against

the State is not Lippolt’s liability or his immunity. The pertinent issue is

whether an injured person has a duty to investigate who might be liable

for her injuries. It was the district court’s failure to make this critical

distinction—between Lippolt’s claimed immunity and the State’s

liability—that led the district court to erroneously conclude Hook was not

on inquiry notice. The district court reasoned that, until Hook had some

basis to believe Lippolt was immune, she had no duty to investigate a

possible vicarious liability claim against a third party.

We think Lippolt’s immunity is a red herring and has little to do

with an injured party’s duty to undertake a reasonably diligent

investigation of the nature and extent of her legal rights to recover for an

injury. See Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir. 1985)

(“Once the injured party is put on notice, the burden is upon him to

determine within the limitations period whether any party may be liable

to him.”); see also Buechel v. Five Star Quality Care, Inc., 745 N.W.2d

732, 736 (Iowa 2008) (“Once a person is aware that a problem exists, the

person has a duty to investigate.”). Under many circumstances, a

tortfeasor remains personally liable even though a third party might have

vicarious liability, as in the situation of employee/employer or vehicle

operator/vehicle owner. If a duty to investigate the existence of a

vicariously liable defendant did not arise until the injured party

discovered the tortfeasor’s immunity, the statute of limitations would

never commence against a vicariously liable defendant in cases in which

the tortfeasor is not immune. We think an injured party who knows of

14

her injury and its cause must conduct a reasonable investigation of the

nature and extent of her legal rights that includes inquiry into the

identity of any vicariously liable parties. An injured party’s duty to

investigate the identity of persons liable for her injury is not a seriatim

process that stops upon the discovery of one defendant and arises again

only when that defendant’s liability is questioned.

In a case brought under the Federal Tort Claims Act (FTCA), the

Fourth Circuit Court of Appeals held plaintiffs who knew the injury to

their decedent, the cause of the injury, and the identity of the tortfeasors,

but not that the tortfeasors were federal employees, were on inquiry

notice of their claim against the government, stating commencement of

the statute of limitations under the FTCA “does not wait until a plaintiff

is aware that an alleged tort-feasor is a federal employee.” Gould v. U.S.

Dep’t of Health & Human Servs., 905 F.2d 738, 745 (4th Cir. 1990). The

court stated:

Plaintiffs’ construction of the limitations statute would

obviate the necessity of due diligence, even when the injury

and its cause are known and a minimum inquiry would have

led plaintiffs to discover in a timely manner the employment

status of the [tortfeasors]. This approach would remove

incentives for the timely investigation and prompt

presentation of claims and would enable a plaintiff to

maintain a FTCA action against the government years after

plaintiff’s injury and its cause are well known if, for any

reason, it escaped the plaintiff’s attention—even absent

reasonable investigation—that the alleged tort-feasor was a

government agent acting within the scope of his employment.

An open-ended rule would vitiate the very purpose of the

statute of limitations.

Id. at 746.

A Maryland court reached a similar conclusion in Conaway v.

State, 600 A.2d 1133 (Md. Ct. Spec. App. 1992). In Conaway, the

plaintiff sued the state for allegedly negligent treatment he received while

15

a prisoner at a state institution. 600 A.2d at 1134. Although the

plaintiff filed a timely claim against the state under the Maryland Tort

Claims Act, he did not learn the identity of the private entity providing

health care at the state prison—Frank Basil, Inc.—until the time for filing

a claim had expired. Id. He then amended his complaint to assert a

claim against Basil, but that claim was dismissed on statute-of-

limitations grounds. Id. at 1134, 1142. The Maryland appeals court

upheld Basil’s dismissal, rejecting the plaintiff’s argument his claim was

saved by the discovery rule: “We hold that appellant was aware of the

circumstances surrounding his claim no later than September 8, 1986,

and that he had three years from that date to bring suit against the

proper parties.” Id. at 1141–42; accord Brown v. Drake-Willock Int’l, Ltd.,

530 N.W.2d 510, 513 (Mich. Ct. App. 1995) (“Our courts consistently

have held that the statute of limitations is not tolled pending discovery of

the identity of the parties where all the elements of the cause of action

exist.”).

Here, Hook knew she had been injured and knew who caused her

injury. Therefore, she was on inquiry notice and had “a duty to make a

reasonable investigation” to ascertain the exact parameters of her claim.

Kendall/Hunt Publ’g Co., 424 N.W.2d at 243–44. It cannot be disputed

that, had Hook inquired to ascertain whether there were any entities or

persons other than Lippolt that might be liable for her damages, she

would have discovered Lippolt’s volunteer status and the relationship

between Lippolt and the State. Indeed, it took only one interrogatory

propounded during discovery to reveal the State’s vicarious liability.

In summary, Hook knew of her injuries and Lippolt’s fault in

causing those injuries on June 9, 2000. As of that date, the plaintiff had

a duty to investigate the identity of any party that might be vicariously

16

liable for Lippolt’s negligence. As a matter of law, a reasonably diligent

inquiry would have led to discovery of the State’s liability. Consequently,

under the doctrine of inquiry notice, Hook is charged with knowledge of

her claim against the State on June 9, 2000, and accordingly, her claim

against the State accrued on that date. Because Hook filed her

administrative claim nearly three years later, rather than within two

years of its accrual as required by section 669.13, this lawsuit is barred

unless the defendants are estopped from relying on their statute-of-

limitations defense, an issue we now address.

V. Fraudulent Concealment.

The plaintiff argues that, even if her administrative claim was not

timely filed, the defendants are estopped from asserting the statute of

limitations as a defense under the doctrine of fraudulent concealment.

The district court did not address this issue, as it concluded Hook was

not on inquiry notice. Because we have concluded the statute of

limitations had expired as a matter of law prior to the commencement of

this suit, we now consider whether the defendants are estopped from

asserting the statute of limitations as a bar to this action.

To establish equitable estoppel, the plaintiff must prove by clear

and convincing evidence:

(1) The defendant has made a false representation or has

concealed material facts; (2) the plaintiff lacks knowledge of

the true facts; (3) the defendant intended the plaintiff to act

upon such representations; and (4) the plaintiff did in fact

rely upon such representations to his prejudice.

Christy v. Miulli, 692 N.W.2d 694, 702 (Iowa 2005) (quoting Meier v. Alfa-

Laval, Inc., 454 N.W.2d 576, 578–79 (Iowa 1990)); accord Dierking v.

Bellas Hess Superstore, Inc., 258 N.W.2d 312, 315 (Iowa 1977). “This

doctrine is intended to prevent a party from benefiting from ‘the

17

protection of a limitations statute when by his own fraud he has

prevented the other party from seeking redress within the period of

limitations.’ ” Christy, 692 N.W.2d at 702 (quoting Borderlon v. Peck, 661

S.W.2d 907, 909 (Tex. 1983)).

Hook claims “Lippolt, through his attorneys, made false

representations or concealed the material fact that he was a state

volunteer” at the time of the accident. “Conduct amounting to false

representation or concealment needs to be deceptive or fraudulent.”

Meier, 454 N.W.2d at 580. To establish deceptive or fraudulent conduct,

there must be proof the defendant acted “with the intent to mislead the

injured party.” Id.; accord Dierking, 258 N.W.2d at 316 (requiring proof

defendant “knowingly took a position with the intention that it be acted

upon”); see also Bensman v. United States Forest Serv., 408 F.3d 945,

965 (7th Cir. 2005) (equitable estoppel requires a showing the defendant

“engaged in affirmative misconduct rather than mere negligence”).

In Dierking, the defendant’s insurer unintentionally wrote an

incorrect injury date on a proposed release and check given to the

injured plaintiff during the two-year limitations period. 258 N.W.2d at

314. Subsequently, the plaintiff and her attorney relied on the injury

date stated by the insurer in filing suit more than two years after the

plaintiff’s cause of action accrued. Id. This court held the plaintiff and

her husband, who had filed a claim for loss of consortium, had not

established the intent element of equitable estoppel because the insurer’s

error was unintentional: “[The plaintiffs] failed, however, to show any

conduct or words from which can be implied an intent on the part of

defendant or its insurer to induce plaintiffs to rely to their prejudice on

those incorrect dates in determining the date of Mrs. Dierking’s injury for

purposes of the statute of limitations.” Id. at 316. We ruled as a matter

18

of law that the plaintiffs’ claim was barred by the statute of limitations.

Id. at 317; see also Meier, 454 N.W.2d at 580 (holding claim of equitable

estoppel should not have been submitted to jury because there was no

proof the defendant intended by its conduct or assertions to mislead the

plaintiffs so they would not timely file suit).

Having reviewed the summary judgment record in this case, we

reach the same conclusion here. Assuming for the moment that Lippolt’s

admission of fault or his insurer’s payment of Hook’s property damage

claim constitute an affirmative act by Lippolt or the State to conceal

Lippolt’s volunteer status or Hook’s claim against the State, there is no

evidence either defendant intended to conceal these facts or to induce the

plaintiff to forgo investigation into the existence of additional defendants.

The evidence shows Lippolt attached no importance to his volunteer

status and did not mention the purpose of his trip to his own attorney

until answering the plaintiff’s interrogatories more than two years after

the accident. Lippolt did not realize until after the statute of limitations

had expired that, because he was a department volunteer, the State Tort

Claims Act was applicable to Hook’s claim and the State was vicariously

liable. Lippolt could hardly have intended to conceal Hook’s claim

against the State when he was unaware such a claim even existed.

Similarly, the State itself did nothing to affirmatively mislead Hook or

conceal her claim against the State, as the State had no notice of the

accident and no contact with Hook until after the limitations period had

run.4

4Hook also complains of conduct by Lippolt’s attorney that occurred after the

two-year statute of limitations had expired. This conduct cannot be a basis to estop the

defendants from relying on the statute of limitations, however, because by the time this

conduct occurred, Hook had already missed the filing deadline. See Temple v. Gorman,

201 F. Supp. 2d 1238, 1242 (S.D. Fla. 2002) (holding defendants’ conduct after the

statute of limitations expired “is irrelevant” to claim of equitable estoppel); Merrill v. W.

19

A federal district court has rejected a claim of estoppel under

similar facts. See Baker v. United States, 341 F. Supp. 494 (D. Md.

1972). In Baker, the plaintiff was injured in a car accident with Smith, a

federal employee. 341 F. Supp. at 495. Smith notified his personal

insurer of the accident, and that insurer investigated the matter and

communicated with the attorney representing the injured parties until it

went into receivership. Id. Thereafter, Smith settled with one injured

party, paying his own money. Id. No one connected with the matter—

parties, attorneys or insurer—realized that Smith was acting within the

scope of his employment at the time of the accident. Id. Smith did not

even report the accident to the government. Id. Eventually, Baker filed

suit against Smith and only then, after the statute of limitations had

expired, did Smith first learn that he was considered to be within the

scope of his employment at the time of the accident. Id. The court

thereafter granted summary judgment to the defendants on the basis of

the statute of limitations. Id. at 496. Noting that result might seem

“unfair, since no one realized until too late that Smith was in the course

of his employment by the government at the time of the accident,” the

court nonetheless concluded “no facts which would ordinarily amount to

an estoppel against Smith, his insurer or the government have been

shown.” Id.

Finally, Hook contends Lippolt’s insurer and attorney had a duty

to investigate the circumstances of the accident and a duty to disclose to

her that Lippolt was acting as a volunteer for the State. As we have

discussed above, the duty of investigation was on Hook, not Lippolt. See

Va. Dep’t of Health & Human Res., 632 S.E.2d 307, 318 (W. Va. 2006) (holding

department’s delay in producing records requested by plaintiff was irrelevant to claim of

fraudulent concealment in view of fact statute of limitations had expired before records

were requested).

20

Gould, 905 F.2d at 745 (“The burden is on the plaintiff to discover the

employment status of the tort-feasor and to bring suit within the

applicable limitations period.”); Rios v. Montgomery County, 852 A.2d

1005, 1022 (Md. Ct. Spec. App. 2004), aff’d, 872 A.2d 1, 10 (Md. 2005)

(same). Additionally, a party’s silence cannot provide the basis for

estoppel “absent a special duty to disclose.” Martinelle v. Bridgeport

Roman Catholic Diocesan Corp., 196 F.3d 409, 424 (2d Cir. 1999); accord

Alcorn v. Linke, 257 Iowa 630, 641, 133 N.W.2d 89, 96 (1965) (“ ‘Estoppel

may arise from silence, as well as words, where there is a duty to speak,

and the party on whom the duty rests has an opportunity to speak, and,

knowing the circumstances, keeps silent.’ ” (quoting Helwig v. Fogelsong,

166 Iowa 715, 724–25, 148 N.W. 990, 994 (1914))). We know of no

authority that would impose an affirmative duty of disclosure on a

tortfeasor prior to commencement of suit in the absence of any inquiry

by the claimant. See Ray v. Keith, 859 So. 2d 995, 996–97 (Miss. 2003)

(rejecting as a matter of law plaintiff’s claim of equitable estoppel based

on defendant’s failure to reveal to plaintiff that defendant was acting

within the course of employment at time of accident, notwithstanding

defendant’s insurer’s payment of passengers’ claims).

We conclude the defendants have established there is no genuine

issue of material fact with respect to Hook’s allegation of fraudulent

concealment. Consequently, we hold as a matter of law the defendants

are not estopped from asserting the statute of limitations as a defense to

Hook’s claim. The plaintiff argues this result is inequitable and allows

“unscrupulous defendants” to “thwart” the Tort Claims Act. But this

case is not about unscrupulous defendants thwarting the Tort Claims

Act. Such defendants will be estopped under the same principles we

have applied today. This case is about an injured party and a tortfeasor

21

who were both unaware that a third party was liable for the injured

party’s damages. Under these circumstances, it is not inequitable to

impose the consequences of this unfortunate situation on the injured

party who bore the duty of diligent investigation.

VI. Waiver.

Hook argues on appeal that Lippolt waived the statute of

limitations by failing to assert it in his initial answer to Hook’s petition in

her first lawsuit. Although Lippolt did not allege a statute-of-limitations

defense in his initial answer, the district court allowed him to amend his

answer to add that defense. Rather than appealing this ruling, Hook

dismissed her first lawsuit. In Hook’s second lawsuit, which is the one at

issue in this appeal, Lippolt raised the statute of limitations as an

affirmative defense in his initial answer. Given Hook’s abandonment of

her first lawsuit and Lippolt’s prompt pleading of his limitations defense

in this lawsuit, we question how Lippolt’s action in the first lawsuit could

constitute a waiver in the current lawsuit.

Even if Lippolt’s conduct in the first lawsuit could be the basis for

a waiver in this action, there is no evidence in the record that would

support a finding of waiver. “ ‘[W]aiver is the intentional relinquishment

of a known right.’ ” Huisman v. Miedema, 644 N.W.2d 321, 324 (Iowa

2000) (quoting State v. Hallum, 606 N.W.2d 351, 354 (Iowa 2000)). At

the time Lippolt filed his initial answer in the first lawsuit on April 9,

2002, he had no statute-of-limitations defense. On that date, there was

still time for Hook to file her administrative claim within the two-year

statutory period. Consequently, Lippolt’s failure to allege the statute of

limitations as an affirmative defense in his initial answer could not

indicate the intentional relinquishment of that defense. Hook has failed,

22

therefore, to generate a genuine issue of material fact on her waiver

argument.

VII. Summary and Disposition.

By virtue of section 669.24, Lippolt is not personally liable on the

plaintiff’s negligence claim, and therefore, was not properly sued. In

addition, the plaintiff’s lawsuit is barred by the statute of limitations as a

matter of law. The plaintiff had actual knowledge of her claim against

Lippolt and imputed knowledge of her claim against the State more than

two years before she filed her administrative claim with the state appeal

board. In addition, there is no evidence that would generate a genuine

issue of material fact on the plaintiff’s claims of equitable estoppel and

waiver.

We hold the district court erred in granting partial summary

judgment to the plaintiff and overruling the defendants’ motions for

summary judgment. Accordingly, we reverse the district court’s ruling

and remand this case to the district court for entry of judgment in favor

of the defendants on the plaintiff’s negligence claim and for dismissal of

the State from this action.

REVERSED AND REMANDED.

All justices concur except Baker, J., who takes no part.