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.
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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.