Doe Ex rel.Doe v. Independent School District No. I-89

ALMA WILSON, Justice,

dissenting.

The majority opinion holds that the ap-pellees were not equitably estopped from asserting the statute of limitations defense. Because I believe that there is a fact question which should be resolved by a fact-finder, summary judgment is improper. I therefore respectfully dissent.

In a negligence action brought under the Political Subdivision Tort Claims Act, 1 the trial court granted summary judgment to defendants finding that the six months’ statute of limitations in 51 O.S.1981, § 156(C) had expired before the suit was filed. The attorney for the plaintiff claims that he was encouraged not to file a law *663 suit by the demeanor, actions, and the specific requests of the insurance company’s investigator and therefore the insurance company should be barred from asserting the statute of limitations as a defense by reason of equitable estoppel.

On April 3, 1981, during school hours, Sally Doe, a fourteen-year-old retarded female, was taken by her school bus driver, Jose Rideout, to a motel where he forced her to have sexual intercourse. Subsequently, Rideout was convicted and sentenced for his crime. The plaintiff alleged that Rideout had a previous police record which revealed that prior to his employment with the defendant school district, he had been arrested on sixteen separate occasions, that he had been convicted of four separate crimes including attempted criminal assault on a female of the age of thirteen, and that six of the past charges against him involved sexual crimes or attempted sexual crimes on females under the age of eighteen.

On July 17, 1981, the plaintiffs attorney sent notice to the school board of plaintiff's claim. In early August, he was contacted by the investigator for the school board’s insurance company. In a deposition of the plaintiff’s attorney by the defendants, the attorney testified that he and the investigator met and talked on the phone on several occasions from August through December, 1981, which he describes in the deposition. He stated that the investigator told him that there was no need to file a lawsuit, and that the matter could not be settled until he had finished his investigation and submitted his report. The defendants allege that the claim was denied by operation of law on October 15, 1981, ninety days after the claim was made. 2 On November 24, 1981, plaintiff’s attorney sent the investigator a letter stating that he intended to file suit “within the next week unless this matter can be successfully resolved.” Two days later, plaintiff’s attorney received a phone call from the investigator telling him, “Don’t file your lawsuit, I’ve still got a little bit of investigation to do, let me go ahead and complete my investigation. You don’t need to file your lawsuit.” On December 3, 1981, plaintiff’s attorney had a telephone conversation with the investigator and was told that the claim had been denied, that the position of the company was that there would be another insurance company that would pay the claim. At the attorney’s request, the investigator sent a letter confirming the telephone conversation. The letter was sent December 8, 1981, and received December 11, 1981. On April 15, 1982, the defendants allege the statute of limitations ran, 3 and the petition was filed on June 3, 1982.

The relevant provisions of the Political Subdivision Tort Claims Act are found in 51 O.S.1981, § 157, and § 156(C). Section 157 provides that a claim is denied if the political subdivision fails to approve the claim within ninety days or receipt of the claim. Because such a time limit is procedural, like other statutes of limitation, the time bar may be extended by estoppel. See Jarvis v. City of Stillwater, 732 P.2d 470, 473 (Okla.1987).

Section 156(C) provides that “[n]o action for any cause arising under this act shall *664 be maintained unless ... the action is commenced within six (6) months after notification of denial of the claim by the clerk of the political subdivision.” This Court has previously held that unless a claim has been approved during the ninety day period, the claim is deemed denied at the end of the ninety days. Neal v. City of Blackwell, 670 P.2d 587, 588 (Okla.1983). Where a claim is deemed denied, the six-month limitation of section 156(C) is activated. Lucas v. Independent Pub. School Dist. No. 35, 674 P.2d 1131 (Okla.1983). But where the facts show that a plaintiff is lulled into a sense of security to delay the filing of a lawsuit beyond the statutory period, the defendant will be estopped from interposing the defense of a time bar. Jarvis, 732 P.2d at 471 . “One cannot equitably lull an adversary into a false sense of security, thereby subjecting his claim to the bar of limitations, and then be heard to plead that very delay as a defense to the action.” Whitley v. Oologan Ind. School Dist., 741 P.2d 455, 457 (Okla.1987).

The issue before this Court is whether the actions which the plaintiff alleges were taken by the defendants in urging the plaintiff not to file a lawsuit were legally sufficient to lull the plaintiff’s attorney into a false sense of security so that the defendants are estopped from using the statute of limitations as a defense. The trial court on a motion for summary judgment found that the plaintiff’s claim was denied by operation of law on October 15, 1981, and that the six months’ statute of limitations ran on April 15, 1982, and that therefore the plaintiff was barred by the statute of limitations. At the time of the hearing, District Court Rule 13 4 provided in pertinent part:

A party may move for judgment in his favor on the ground that the depositions, admissions in the pleadings, stipulations, answers to interrogatories and demands to admit, affidavits, and exhibits on file, filed with his motion or subsequently filed with leave of court show that there is no substantial controversy as to any material fact.

Therefore, if the facts alleged by the plaintiff concerning the actions of the defendant’s investigator are legally sufficient to estop the defendant from asserting the statute of limitations as a defense, summary judgment should have been denied.

The alleged facts which I find persuasive are that the plaintiff’s attorney was told that there was no need to file a lawsuit when he contacted the investigator, and that the matter could not be settled until the investigator had finished his report, leading the plaintiff’s attorney to believe that the settlement would be made as soon as the investigation was complete. In fact, the insurance company never denied that the school board was liable for its employee’s tortious conduct, only “that there is no coverage under their policy for this loss.” In his December 3, 1981, telephone conversation with the insurance investigator, the plaintiff’s attorney was led to believe that another insurance company would pay the claim.

In Jarvis , which the majority opinion finds to be dispositive, this Court stated that a fact question concerning whether a defendant is estopped from interposing the defense of a time bar is raised by the plaintiff’s allegations that the defendants had made:

(a) some assurance of settlement negotiations reasonably calculated to lull the plaintiff into a sense of security and delay action beyond the statutory period, or

(b) an express and repeated admission of liability in conjunction with promises of payment, settlement or performance, or

(c) any false, fraudulent or misleading conduct or some affirmative act of concealment to exclude suspicion and preclude inquiry, which induces one to refrain from timely bring an action.

Jarvis, 732 P.2d, at 472-473 .

The case at bar is a classic scenario of voluntary enlargement of the ninety-day denial period. The provisions of § 157 required a denial of the claim in whole or in part before suit could be instituted. The *665 request of the insurance investigator that the plaintiff not file suit until his investigation report was completed not only prompted but required plaintiffs attorney’s letter of November 24, 1981, advising he would file suit within a week and requesting a response of denial or acceptance of plaintiffs offer of settlement. Clearly at that date, both plaintiff and defendants recognized the claim as undenied. On receipt of that letter defendants’ investigator requested additional time for a response. Under these facts, defendants may not now deny under the authority of Neal and Lucas that the ninety-day time of “deemed denial” was enlarged by its own request.

The plaintiff has alleged facts which if proven would show that the actions of the insurance investigator were misleading inducing him from timely bringing the lawsuit. The petition was filed within six months of December 8, 1981, which was the date the letter was sent which denied the insurance company’s liability. The action would therefore be timely. Whitley, 741 P.2d at 457 . I would find that the alleged acts of the defendants’ insurance investigator were sufficient to assert a fact question which would still be in controversy and therefore summary judgment was improper. I would reverse the judgment of the trial court and remand this cause for further proceedings.

. 51 O.S.1981, § 151 et seq., now retitled Governmental Tort Claims Act, 51 O.S.Supp.1987, §§ 151-171.

. 51 O.S.1981, § 157 provided:

Within ninety (90) days after receiving the filing of a claim, the clerk of the political subdivision shall notify the claimant in writing of the approval or denial of the claim. A claim is denied if the political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the interested parties have reached a settlement before the expiration of that period. A person may not initiate a suit against a political subdivision or employee whose conduct gave rise to the claim unless the claim has been denied in whole or in part.

Section 157 has subsequently been amended by 1984 Okla.Sess.Laws, ch. 226, § 9, eff. Oct. 1, 1985; and 1984 Okla.Sess.Laws, ch. 228, § 5, eff. July 1, 1984.

. 51 O.S.1981, § 156(C) provided in pertinent part:

No action for any cause arising under this act shall be maintained unless valid notice has been given and the action is commenced within six (6) months after notification of denial of the claim by the clerk of the political subdivision.

Section 156 has subsequently been amended by 1984 Okla.Sess.Laws, ch. 226, § 8, eff. Oct. 1, 1985; 1985 Okla.Sess.Laws, ch. 357, § 2, operative Oct. 1, 1985, and 1986 Okla.Sess.Laws, ch. 247, § 23, operative July 1, 1986.

. 12 O.S.1981, ch. 2, App., Rules for District Courts of Oklahoma (subsequently withdrawn and replaced by order of Oct. 30, 1984, eff. Nov. 1, 1984).