*1 48,606 No. Group, Appellants, George and Insurance Bowen Company W. H. Westerhaus d/b/a Westerhaus Motor Co., Appellees. Insurance Underwriters 1102) (578 P.2d May 6, Opinion filed 1978. Nitz, Chartered, Salina, Knudson, Stokes, King, & of David S. Knudson appellants.
argued the the brief for the cause was on Boisseau, Chartered, Bend, Randall, Turner, Hensley Christopher & of Great argued Underwriters Insurance the cause and was on the brief for Universal O’Donnell, Ellsworth, Company, appellee. the brief W. H. V. was on John Company, appellee. Westerhaus d/b/a Westerhaus Motor opinion The of the court was delivered summary appeal from Fromme, J.: trial concluded the action entered the trial court. The claim the limitations. was barred defending the basis of the defendants were statute of limitations. following gleaned facts
The claim arose from the parties, correspondence depositions and pleadings, part of the became parties. insurer, Group, Insurance
George and his Bowen Westerhaus, owner, W. H. brought an action *2 Company. insurer, Bowen Universal Underwriters Insurance his repairs. garage The Westerhaus car with Westerhaus left his destroyed January on 1971. Bowen caught fire and the car was insurer, Farmers, paid by for the loss of the car. Farmers his policy damage Bowen’s claim subrogated under became upon Demand was made Westerhaus and the against Westerhaus. insurer, Universal. Universal demand was turned over to his sup- requesting proof loss be filed with wrote to Farmers 31, 1971, proof papers. On March Farmers submitted the porting report regarding Farmers a status of loss to Universal. responded May. In Universal and advised June dispute there Universal and Travelers was some Company primary coverage. Universal Insurance over advised dispute being the insurance this decided commis- report requesting sioner. Letters a status were sent Farmers to September, Universal and December. October by Farmers, Uni- Across the face of the December letter sent response versal made a handwritten which states: “Suit has been policy filed to determine whether our or Travelers response apply.” Thereafter Farmers received no from Universal $5,005.99 reports subroga- their requesting to its letters status on November, until 1972. tion claim Farm- long
On November Universal wrote a letter to apologized in which it failure answer Farmers’ letters ers explained wrong that a claim had been used and the number temporarily misplaced. Universal attached letters had become company, copies papers indicating the other insurance Travelers, keeper’s policy to had issued a second Westerhaus. Universal further stated: We, therefore, [Universal] that both Travelers and UUIC contend loss, coverage GKLL in effect on the date of 1-4-71. your loss, $2,503.00 always ready pay have our half of but “We been unwilling Travelers has their half. been position being explain the In this letter Universal went on to Travelers, Universal was in the and indicated that process declaratory judgment Travelers companies. respective liabilities of the two to establish the Farmers, Universal stated: concluding the letter to above, Considering understanding we are sure that can our involved, dilemma in that we want to our half of the losses but do not know how we can do this as we could not obtain a release for our insured for 50% of the Unfortunately, probably unwilling loss. this will force since it is that the doubtful can be concluded within the next few weeks. We DJ appreciate your thoughts regard problem.” to this On responded November to the letter and advised that it would advise attempt Travelers of its claim and cooperation. Correspondence to elicit between Farmers and Uni- versal concerning declaratory the status of the judgment action against Travelers continued through 1973. Universal advised anticipated year. trial within that on December Universal advised Farmers that the pending hoped action was still get and it ninety days. answer within three-year statute of limitations expired January 4, elapsed, 1974. Six during months *3 time Farmers wrote two letters to Universal. In the last letter it previous telephone referred to a conversation, the substance of which is not disclosed in the record. that Universal po- advise as to Universal’s regarding
sition the claim. On Universal advised June that the court’s in decision judgment action was adverse to Universal. In this letter Universal advised Farmers: three-year (cid:127) (cid:127) I believe provision Kansas has a statute of limitation obligations. fact, contractual In your view of that the statute has run on claim. tolled, respectfully Since the payment your statute has I must decline sub-
rogation claim.” The two companies insurance parties are the real in interest in the matter and although Bowen and Westerhaus were named as parties plaintiff and along defendant with respective their in- surers we will refer to the bringing the suit as Farmers and defending the suit as 9,1974, Universal. On November Farmers filed suit alleging part of Universal as the insurer of Westerhaus for the covered loss of Bowen’s car. Farm- alleged ers engaged Universal procure acts and conduct plaintiff’s delay of this purpose for the pursuing a declaratory judgment party; a third that relying upon the acts and conduct plaintiff of Universal was induced to delay filing its claim in court until after the statute of limitations run; always acknowledged had that Universal had and agreed to plaintiff’s $2,503.00, one-half of loss in the amount of but requested delay any filing claim until Universal could con- action; declaratory judgment clude the and that Universal was asserting is barred the Kansas statute of limitations. admitting destroyed
Universal answered that Bowen’s car was through negligence employees fire being while repaired in Westerhaus’ and the car a reasonable $5,005.99. market value of stated that its offer to by Farmers; one-half of the claim had been refused it denied it requested delay plaintiff’s claim; ever alleged and it plaintiff’s claim was barred the statute of limitations. pleadings
After the were filed and trial pretrial court scheduled a conference to define the controverted issues. Prior to the conference the defendants filed a motion for summary judgment. pretrial conference was never held. arguments Instead the court heard on the motion then took the matter under advisement summary judgment and later entered defendants. considering summary a judgment motion for a trial court give litigant against
must to a judgment sought whom may benefit all inferences be drawn from the admitted (Timi Bank, v. Prescott State facts under consideration. Syl. A court should be cautious in
granting
summary
motion for
when resolution of the
dispositive issue
necessitates
determination of the state mind
(Henrickson
Drotts,
parties.
of one or both
*4
438,
[1976].)
party
Under
the facts disclosed
the pleadings
in this case the
three-year statute of
brought
limitations
on contract
Windle,
(see
Continental Ins. Co. v.
468,
214 Kan.
J.C.
This court has further said:
conduct,
equitable estoppel requires consistency
“The doctrine of
and a
litigant
estopped
precluded
maintaining
from
an attitude with reference to
wholly
previous
a
with his
acts and
transaction involved
inconsistent
business
Lefevre,
Syl.
(Browning
connection with such transaction.”
v.
[1963].)
American
Bank &
State
Trust Co. v. Wild West
523, 527,
agent gave embezzled some of the bonds. This litigation. rise to represented Defendant that when the litigation was completed, arrangements would be made to take care of their completed, city bonds. After the clerk wrote July each of the a letter on which advised the “friendly bondholders bring city suit” in order to liquidate the in legal bonds manner. The letter advised that the city was without legal funds and had to work out some manner of payment. July 13, city Plaintiffs filed their action 1943. The answered, pleading that the statute began of limitations to run on October when replied the bonds were due. Plaintiffs defendants were pleading limita- tions. *5 holding
This court in that case reversed the the trial and said: quite city contending . . We think it clear that the began city the statute of limitations to run on October 1933. The bonds, attempting outstanding particular including
was to refund its issue of the suit, selecting agent bonds in but had been unfortunate who embezzled bonds, naturally possible. the some of desired to recover from that source if scope general the meantime the of its letters to the holders of the bonds was that being repudiated, paid litigation bonds were not but would be when the (p. 307.) through. . . .” Railway Pratt, Another similar case is Co. v. (1906).
Pac. 141 There the title dispute. to land was in appellant railway company patent held a to the land from the United States. The land was also claimed one Ard as a settler under pre-emption homestead and railway laws. The con- veyed appellee, the land Pratt. correspondence Much went appellant on between appellee during litigation February followed. On railway company advised they Pratt had included his lands in the list of lands for which the company purchase would have price. However, to refund the company awaiting the court decision with reference lands: your good, nothing If title is made there is then due from the company; if, hand, your good, certainly on the other title is not made we will have you money, suppose. you ought patiently, refund I But to wait as the others doing, are until this determined. ensued,
Further including letter of June 1901, again asking Pratt to await a final pending determination of cases, “. then we will determine what course we will pursue your with reference to claim for a money.” refund of the railway company purchase then price refused to refund the In a land. district court company Pratt $1,760.36 January 8, railway recovered 1904. The appealed, claiming the cause of action was barred of limitations. This court held the defense of the statute of company. limitations was not available to the The court noted conveyance that when the was made both knew Ard judicially They would have to be ousted. understood that if the conveyed anything only deed to Pratt this could be determined litigation, after evidently both intended to await the judicial determination. The court stated: *6 patiently, request plaintiff Up in that Pratt waited at the of the to time repeated error, testing long the and lawsuits. He was while it was its title to land ultimately sustained, did time time that title would be Ard assured from his show,’ requested patiently, ghost ‘wait as the others are have ‘a of a and was not litigation doing, until this is determined.’ by Pratt, plaintiff in error assumed control of the case commenced “The court, apparently highest Pratt at times it to the confident of success. carried insistent, company pacified urgent but was the assurance ‘our waiting the circuit court will be with reference to these to see what the decision of lands; win, not, you your money.’ nothing; get if It if we we owe will is not any respect duty prem- suggested in the that Pratt failed in to do his full waited, opportunity ises. . After Pratt has so and the after full failed, very delay it assert the test its claim has would be unconscionable for requested purpose payment money paid avoiding the Pratt of the which it for
by him, ordinary justice nothing. which he received The rules of and fair for has dealing suggestion. at the The facts for the rebel furnish abundant reason estoppel application We think this where of the rule of to such conduct. case 217, 218.) applied.” (pp. this rule should be present presented A factual situation similar to our case was Wilson, (1962), Safeway Stores v. where A a claim arose from the collision of two trucks. claim was presented kept payment postponing but defendant of the claim damage plaintiffs personal injury truck until a claim delay been determined. Further occurred reason of defend- request plaintiffs proof for further ant’s documentation of of loss. period passed After the the statute of limitations had the payment property defendant declined loss claim. The plaintiff equitably estopped and claimed the defendant sued asserting the bar of the statute of limitations. Plaintiff held; appeal recovered and on to this court it was opinion appellants’ requests delay [T]his court is of the continued determined, personal injury pay until the suit was the the actual offer to cost of truck, repairs request damages and the for further information as to for loss vehicle, appellee security of use of that were sufficient to lull into a sense of preventing running it from the instant action before the of the statute of limitations.” proper party There can be no doubt under facts a can be equitably estopped reliance on the statute of limitations as a type him. defense to The of conduct which is question give generally sufficient to rise to an raises a stipulated depend upon interpre- fact unless the facts are or (39 A.L.R.3d, unambiguous tation of written documents. Statute — p. 127.) Negotiations, of Limitations stipulate the In the case the did not facts. documentary passed were letters which con- misunderstanding been a appears there to have form but wording Defendants contend veyed in the letters. from the plaintiffs knew should have known declaratory completed action would not be argue further after their be barred. Defendants until claim would delay filing the they specifically never they They point in which stated claim. to one of letters “unwilling parties.” delay probably would force they made several offers to Defendants contend accept refused to one-half of their claim the same. hand, repre- plaintiffs, argue that defendants on the other they the claim as soon as the
sented *7 terminated, plaintiffs relied in judgment action thereon, an that the to one-half of claim was offer plaintiffs re- delay filing, never affirmative inducement to consequences accept inequitable payment, to and that fused such applied. equitable estoppel to is would result them unless Wilson, supra, it Safeway v. is said: Stores every estoppel applied governing no definite rule which can be to “There is few, cognizance, any, relationships, if law There are of which the takes situation. degree by principles estoppel. are of Since not effected to some principle equitable through estoppel runs all transactions cannot be deter- of by any question raised case must be fixed definite rule. Where the is each mined or on its individual facts.” determined own file, depositions pleadings, Under the and letters on plaintiffs, we it was light most to the hold error favorable genuine to as a matter law there was no the trial court conclude of any pleadings, judgment as fact and enter on the issue material and written documents. letter of November further claim the defendant’s Plaintiffs 60-520(o) acknowledgment under K.S.A. constituted liability existing which extended the statute of pay an limitations. the bar agree. acknowledgment An which will remove We do not distinct, unequivocal, of limitations must be of the statute of a direct admission qualification, nothing less than without (Dechand & Roofing liability sufficient. existing Schumaker, 82, Syl. Kan. 254 P.2d Supply v. Co. [1953].) summary judgment question of proceedings. remanded for the case is
reversed Owsley, J., dissenting: fully I I agree dissent. While with the principles majority opinion, of law enunciated in the I do not feel they apply facts of this case. Here we have dispute a claim companies. between two insurance Over the years course of three companies corresponded between one another as to the status of claim. The defendants liability admitted for one-half of plaintiffs’ claim but stated their for the other half de- pended on the a declaratory outcome of de- fendants and company. another insurance explana- This was an why payment tion delayed. statements fraudulent, defendants were not misleading deceptive. De- fendants did attempt not induce or to induce delay filing their cause companies action. Insurance specialists are the field of litigation. claims and In the strong absence of a showing inducement, permitted should not rely be equitable estoppel vary the statute of limitations.
Equitable estoppel
is not available to one who because of his
own acts or failure to
Equity
act has
suffered
loss.
aids the
vigilant and not
(See,
those who slumber on their rights.
Younger
Younger,
Estate
[1967];
The decision of the trial court should have been affirmed. McFarland, J., joins foregoing opinion. dissenting