*1 wife, justification 'As to the there is evidence that at for overturning shown judgment. the time the defendant’s arrest she told police at her the de- front door Affirmed. No costs awarded. home, only fendant not at was hut few apprehended trying later he moments was TUCKETT, I-IENRIOD, ELLETT, through to leave window another back JJ., concur. officer stationed at the rear. The son’s
testimony that he was based on the fact CALLISTER, J., concurs in the result. spent Friday “every Thursday and after- watching penned near the
noon” rabbits alleged
area where the was to have assault committed,
been crime and that (cid:127)since the supposed to have been committed
Friday, it, he didn’t. would have seen but testimony is also true that boy, daughter neighbor foster RICE, Appellant, Ethel them, judge if even believed does had defendant necessarily show DISTRICT, political SCHOOL GRANITE presence during in their all at times Utah, subdivision of the State of Respondent. afternoon when the offense occurred. Defendant No. 11443. revert to the
We foundational Supreme Court of Utah. question in this case. It was controlling not, suggest, seems to as the July 1, 1969. judge trial not be whether the did did lieve the witnesses referred
falsified. It was whether all of beyond he a reason
evidence was convinced
able doubt that the defendant committed that, our notwith
offense. It is conclusion quoted, his
standing remarks hereinabove clearly unequivocally
he indicated judgment the matter
his overall and final guilty the defendant was record,
charged. survey Upon our persuaded
we there are *2 purpose appeal
For the of this will concede the truth of the facts as set forth in affidavit. Plaintiff has injuries claimed to have suffered severe back, her neck and anas incident there- to, required surgical she was to have a procedure performed to effect a fusion of places. Immediately her back in two fol- accident, lowing her which occurred on the September, 30th she notified Thomas, Armstrong, Rawlings, &West writing Cyprus High the authorities of Schaerrer, West, City, E. David Salt Lake Subsequently, plaintiff was con- School. appellant. for by an tacted insurance Scott Ray, Nebeker, Stephen Quinney & B. Adjusting Company, informed Wetzel who Nebeker, City, respondent. Lake Salt represented Ameri- her that he the Great Company, the car- can Insurance QALLISTER, Justice: District. The rier for the School Granite advised her she would initiated this action to recover *3 compensated damages as for her soon injuries for the she sustained while attend- ascertained. the costs thereof were ing high game.. a school football She al- leged bleacher, that she fell from a which During January plaintiff was negligently by was maintained defendant in hospitalized surgery. Thereafter for back unsafe, dangerous, neglected a and condi- by an again was contacted who she tion. Defendant filed a motion dismiss to that be indemnified reiterated she would ground that on claim was expenses. medical She was reas- her by one-year barred period limitation company the insurance would sured U.C.A.1953, provided 63-30-15, in Section accept responsibility and she was not Repl. Vol. filed an affidavit worry. pic- to The showed her opposition motion; to defendant’s the trial and tures the bleachers commented court treated the matter as a motion for they were old that there obsolete summary judgment problem and dismissed her taking com- would be no whatsoever in plaint expenses. care of her prejudice. appeal, with plaintiff On contends that her affidavit contained suf- November, During the month of ficient estoppel, facts create an which adjuster’s contacted the office was present jury. she entitled inquired to a settlement. She was claim; therefore, deny proper approve or we everything or- advised any- are not a fact situation der, unable do confronted but the not auth- agent’s were released her doctor. wherein actions until she was thing by statute, governmental plaintiff had orized and the although September, In entity doctor, assert the she could not released her rstill not been company; no- statute of limitations. she was again contacted the time that claim tified for the first Similarly, concept govern- that a n denied. at- immediately contacted She subj entity generally mental ect to torney, action. Based who filed the instant estoppel cannot be under sustained n ad- conduct of the aforementioned 63-30-4, pro- mandate of Section juster, plaintiff contends that defendant vides : n estoppedto limitations. the statute assert * * * immunity from suit Wherein preliminary important As a matter it is act, this to be sued waived consent to notice the status of an insurance carrier entity liability shall granted Immunity Act. Governmental entity if be determined as were Vol., 63-30-14, U.C.A.1953, Repl. Section private person. provides: Supreme the State of Court of days ninety filing Within Washington has observed:1 entity governmental or its claim immunity from Governmental surance carrier shall act thereon conferring the doctrine ap- is a derivative of notify writing claimant in immunity from entity sovereign proval A claim shall be deem- denial. or omit- without its consent. suit if at the end [Citations ed been denied to have state legislature governmental ninety-day period the ted.] tort immunity has failed entity sovereign or its insurance carrier indicated (Empha- deny approve the claim. longer desirable ac- actions is no added.) sis modern 4.92.090. The ceptable. R.C.W. judicial legislative trend in both statutory desig Implicit within this concept that the thinking is toward deal carrier to di the insurance nation of same expect the right citizen has a acknowledg rectly the claimant is *4 fair honesty, justice and standard of conduct carrier’s the insurance ment the state or with dealing in his contact estoppel. The support an may be such to legally entity, he is political which other specifically authorized is insurance carrier (1968). Wash., 833, Matthews, 443 P.2d 1. Finch v. dealings
accorded in his'
action,
with
nevertheless,
other
the time demerit?
* * *
dividuals.
respect
with
filing
of the claim--
essentially procedural
is
in nature and':
foregoing concept
has been em-
analogous
to a statute of limitation.
bodied in the Utah
Immunity
Governmental
authorities,
It has been intimated
some
appear
Act.
would
to be an anomalous
that the claim statute is the measure of-
situation if
although
we were
hold that
to
power
governmental agency
sovereign immunity
waived,
has been
a
paying
involved,
the tort claims
andi
doctrine, governmental
derivative- of that
hence
procedure-
deviation from
immunity
estoppel,
princi-
from
is a viable
waiver,,
dispensed
cannot be
with
ple
may
liability
be asserted to avert
conclusion,,
estoppel,
That
or otherwise.
entity
an
act as
denominated
-
respect
filing
at least
to
time of
private person.
claim,
supported .by
is not
the statute
n
one-year
if the
Even
limitation of Sec-
or reason. The various reasons advanced
mandatory,
tion 63-30-15
be deemed
statute,,
adoption
for the
of the claim
previously
court has
held:
is,
agency
oppor-
an
to afford
* * *
Waiver
tunity
the-
investigate
the merits of
found in the
mandatory
face of a
statute.
-
claim,
settlement,
at a
thus
to arrive
instance,
For
statutes of limitation ordi-
avoiding litigation,
not inconsistent
are
narily
mandatory
are
both in form and
not the
with the
that the
view
statute
Nevertheless, they may
effect.
be waiv-
power.
the stand-
measure
From
n
party may
estopped
ed or the
from
point
agency
general power
relying upon them.
omitted.]2
[Citation
liability
pay
arising
claims
A case
prin-
which reviews the relevant
liability
imposed by
public
act. Hence-
ciples
applied
to be
in the instant action
filing
ninety days,
the claim
within
Lompoc
is Dettamanti v.
Union School
and'
mandatory
while
the claimant
District, wherein the court stated:
precedent
condition
his cause of
* * *
repeated-
Although
action,
it has
nothing
procedural
been
than a
more
ly
compliance
appro-
which,.,
held that
requirement
agency,
as to the
priate
mandatory
claimant,
by-
claim statute
be excused
* * *
requisite
essential
estoppel.
cause
Hurley
Bingham,
pel,
2.
v. Town of
63 Utah
the defendant could he
589, 592,
213,
(1924) ;
228 P.
also
assert
the statute of limitations
Comm.,
Compensation
see McKee v. Industrial
115 Utah
the Workmen’s
Act as
(1949),
plaintiff’s right
compensation-
27 Comm., ing In Benner Industrial Acc. v. the time commencing for suit there- 24, 346, 349, supra, 159 P.2d 26 Cal.2d under. here,
26, “Where, the court said: Immunity Utah Governmental delay commencing the in action was action; Act does a not create new cause of by party sought the the duced conduct of defense, merely this act sovereign a waives may invoke charged the latter to he immunity actions; in specified certain see recovery. An such defeat conduct through 63-30-10,5 Section 63-30-5 may estoppel although arise there was provides liability govern the of part designed no fraud on the of entity mental shall be determined as if person sought estopped. To create to be entity private person. were a equitable estoppel, enough if ‘it is judgment Defendant asserts that the has been induced to refrain the trial court should be affirmed because using taking from such means such negotiations estop par- settlement a do not by lay power, action as in his ty from interposing the statute of limita- might position he retrieved his * * * tions aas defense. saved himself from loss.’ person ‘It is well settled that a his question nego of whether rely estopped upon conduct compromise a claim or tiations for delay these defenses. Where the in com- against give debt will rise to an mencing action is the conduct induced depends pleading statute of limitations of the defendant cannot be availed of upon negotiations character of ”4 by him as a defense.’ parties.6 surrounding the circumstances action, facts, Furthermore, as applicable In the instant we do not find affidavit, plaintiff’s in indicate that principle in that an serted the instant case the ad carrier (cid:127)estoppel pais not be invoked compensation liability promised respect arising mitted cases statutes (cid:127)creating cause limit- occasions. Plaintiff was led new several example Andreatta, see v. 5. As an of tlie construction 4. Also Rand 60 Cal.2d 846, Cal.Rptr. provides: act, “[i]m- 36 389 382 Section 63-30-9 P.2d munity governmental (1964) ; High of all en- from suit Bruce v. Jefferson Union any injury District, Cal.App.2d 632, is waived for caused School Cal.Rptr. 210 26 tities City dangerous (1962) ; condition Driscoll defective dam, Angeles, public building, structure, Los Cal.2d 61 Cal. public improvement.
Rptr. 661,
(1967) ;
other
Where the an TUCKETT, J., action is induced the conduct concurs. of defendant, privies, his or or insurance
adjuster acting
CROCKETT,
behalf,
in his
it cannot be
(concurring).
Chief Justice
by any
availed of
of them as a defense.
I concur
opinion
with the
of
Cal-
Justice
justly
One
equitably
cannot
or
lull an
lister, but desire to add these comments.
adversary
security
into
false sense of
It is to be
that
conceded
there are what
thereby subjecting his claim the bar
appear upon
per-
the surface
be some
limitations,
of
plead
then be heard to
plexities
permitting
plain-
involved in
very delay
that
as a defense to the ac-
tiff
proceed in
case.
facade
This
tion
brought.
when
Acts or conduct
of apparent difficulties
arises because
wrongfully
induce a
be-
apply
certain
considerations which
lieve an
adjustment
amicable
claim
his
tort-liability-insurance
usual
situation
will
made
create an
expressly
which I
that I
declare
do not de-
against pleading the Statute of Limita-
depart
say
sire to
from
what
herein.
I
tions.
[Citations omitted.]
questions
These are:
both as to
right
liability
record
trial
to sue
before the
should be deter-
upon
court
summary judg-
regard
the motion for
mined without
there
whether
Culmer,
Fla.App.,
company.
7. North v.
for an insurance
701, 705;
Knight
representations
So.2d
also see
v. Law
The court found that the
rence,
331 Mass.
118 N.E.2d
were such as to lead
(1954);
Kasinskas,
plaintiffs reasonably
MacKeen
to believe that when
(1956),
they
fully
Mass.
1.See Balle
2.
v.
81 Utah
17
See
65 A.L.R.2d
224;
Affleck,
P.2d
Saltas v.
99 Utah
381,
176;
Cloward,
Chap. 139,
Chap.
S.L.U.1965,
105 P.2d
Hill
3.
v.
coded as
55,
30,
63,
2d
Utah
tentionally
into
deceived
trial
holding
court
that her
claim barred
representations
timely by the
provisions
63-30-15,
of Section
U.C.
who,
by an in-
although employed
agent
provides
A.1953. This section
that an ac-
conformity
company,
acting in
surance
must
year
tion
be commenced within one
in be-
law for and
authorization
after the denial of a claim.
of,
representing the interests of
half
true,
If this be
September
1966, plaintiff
District.
defendant School
On
fell
manifestly
permit
unjust to
watching
high
it would
a bleacher seat
while
position
in the
District to be
game.
defendant
football
claims tha.t
school
She
her
of,
advantage
taking
injuries
but not be bound
resulting
fall and
were caused
agent
by, the conduct of
who
the unsafe and defective condi-
reason of
deliberately
designedly
deluded the
bleacher seat. This action was
tion
believing
into
that her
exactly
years
claim would
after the
two
fall.
commenced
settled,
after the statute
then
of limita-
to dismiss
moved
because
run,
position.4
changing
complaint
tions had
on its face that the
This
showed
*8
plain-
previously pointed
court
out that
limitations
run. The
has
the
statute of
had
846,
846,
Andreatta,
Cal.Rptr.
4. Cf. Rand v.
Cal.2d
or was know municipality. year apply does would need to be filed within out” one *9 statute, city may by estopped asserting A be from thorized may by express agreement of action non- a claim because the or or conduct right waive the body representative municipality or suc- of interpose action of its the its de- statutory cessive under certain circumstanc- fense of against bodies limitation the city es, action, the body or, but neither nor enforcement of a cause in of any way words, the estopped municipal- or on other whether bound in not a or theory agent ity may that it has held out its as pleading from having authority not have. statute of which he did limitations reason of express agreement agent conduct or anof year during The of one time limitation authority of limited action whose in that against filed action must be specifically connection authorized part municipality integral the stat- is an of by statute. permits and is not an ute which one sue ordinary It cannot statute of limitations. (cid:127)(* ¡(í ^ 'I* *1* ^ adjuster.1 by an insurance be waived us, however, is clear to that no Mount point
A in is that Town of case any person conduct of persons or pos- Green, Dora Fla. 158 So. sessing authority less than governing brought an action There Green power the municipality may by express equity enjoin in the town Mount Dora agreement by conduct, or unless thereun- setting up the statute limitations specifically by statute, authorized then action at law as defense to another duty waive the municipality plaintiff. In pending in which Green plead the statute of limitations where not filed his had law Green mandatory. statute is required as complaint within the 12 months The annotation in 24 page A.L.R.2d at claimed by the the town. He charter of 1415, supplementing in one at A.L.R. was be- the reason he had not filed page states the law as follows: negotiations of certain carried on cause representations made and because of general recognized rule ap- agent town the local insurer for the plied in numerous cases in both orig- Supreme Dora. The Court said: of Mount present inal and the annotation doctrine of controlling question presented pais may applied preclude a agent here whether of a mu- who guilty nicipality, inequitable been being au- of fraudulent without thereunto pass statute, 1. In case we need not that board has not question governing of whether board undertaken to do so. provisions of the District could waive the asserting bankrupt, conduct from the- statute of have become so that no effective * * * covering for the defendant is limitations. existence. possibilities All of these make it essential But, a seen will be review to have the insurer named as a de- original the cases in the annotation and fendant if the reasoning opin- of the main present annotation, 4 of the § ion is to have validity. not, general rule stated is accord- above cases, ing majority applica- consistently The court has refused permit respect arising ble joinder to cases of an *10 party a creating statutes new cause as a holding defendant. Our latest limiting commencing time for to that effect Young case of * * * Barney, al., suit et thereunder. Utah 20 2d 846 P.2d this willing When court is to have opinion The main assumes the Great the insurance party carrier made a ready Company American Insurance stands action, then I problem would have no to pay judgment be which render- permitting the action to be maintained and, therefore, against ed the defendant against the insurer when agent its acted plaintiff comply does not have to plaintiff contends the Scott ad- Wetzel provisions permit her statute juster acted this case. adjuster to An sue. insurance if Even insurance had en- Adjusting Company Scott misled Wetzel tered into a written plain- contract with the plaintiff not file and caused to her tiff to the effect she bring her claim within the the statute time when suit one-year after period had elapsed, says she must file it. so the School District would not be bound Now, American Insurance Great thereby because the not an Company party is not a this action and agent of District; the School and even by stipulation cannot bound even be if he agent District, were an he had parties for the this action. counsel We authority no make such contract. do not know what defense the insurance Am.Jur.2d, Estoppel See and Waiver if and the de- company would raise when it where is said: § policy. attempts fendant recover on its Unquestionably, claim that the insurance purpose which can- policy lapsed obtained directly accomplished be because particular person power or that of the failure of ca- fraud because lacks cooperate, coverage pacity accomplished to do so cannot be company may indirectly by pferson. avoided. even actually wanting, Legal capacity, can- supplied estoppel, be nor can pais can- estopped in when he
person be * * * by contract. himself
not bind action to be
By refusing allow say
maintained, mean I do not getting precluded from would company and the insurance against
redress That proceeding. other agent in
its some us. is not before
matter af- court should district
I think bear should and that each
firmed costs.
own the dissent-
HENRIOD, J., concurs ELLETT, J.,
ing opinion P.2d Utah,
The STATE Respondent,
v. FAIR, Defendant Tommy Otis Atty. Gen., Romney, Bill T. Vernon B. Appellant. Beasley, Joseph P. Peters, Mc- Lauren N. Appellant, FAIR, Tommy Otis Gen., City, Attys. Lake Carthy, Salt Asst. Turner and State. W. for John TURNER, Warden, State Utah W. John Respondent. Prison, Defendant O'Connell, Barney, D. Salt Jay V. John Tommy Fair. City, Otis Lake for 11121, 11195. Nos. Supreme Court of Utah. HENRIOD, Justice:
July 1969. judg- jury’s verdict and Appeal forged, thereon, uttering a
ment entered Narcotic the Uniform prescription