dissenting.
I respectfully dissent.
First, Trial Rule 56(E) states: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” T.R. 56(E) (emphasis added); McMahan v. Snap On Tool Corp. (1985), Ind.App., 478 N.E.2d 116, 122; Indiana University Hospitals v. Carter (1983), Ind.App., 456 N.E.2d 1051, 1057. These bedrock requirements are not altered by the rule all doubts must be resolved in favor of the nonmoving party. Loudermilk v. Casey (1982), Ind.App., 441 N.E.2d 1379, 1385, citing, Coghill v. Badger (1982), Ind.App., 418 N.E.2d 1201, reh. denied, 430 N.E.2d 405 at 406, a case turning on similar facts. Portions of affidavits containing conclusory facts or conclusions of law cannot be used to support or oppose a motion for summary judgment. Coghill, supra, 430 N.E.2d at 406.
In denying rehearing, the Coghill court held defendant could assert the statute of limitations against plaintiff because plaintiffs attorney’s affidavit contained only statements of conclusory fact. Coghill, supra, at 406-407. The affidavit there stated:
[I]t was understood from the conversation with Mr. Scott of October 5, 1976, that this affiant should recontact Mr. Scott to discuss settlement of the claim when plaintiff had completed the medical treatment and we had necessary information on the medicals and specials to evaluate the claim.
Here, the Paramos were represented by Stephen B. Cohen (Cohen). Cohen’s allegation he and the adjuster agreed no lawsuit would be (1) required, and (2) filed “until all efforts at settlement had been exhausted” is nothing more than a statement of Cohen’s understanding of the situation, as was the case in Coghill. Accordingly, I would affirm the trial court. Havert v. Caldwell (1983), Ind., 452 N.E.2d 154, 157; State v. Mileff (1988), Ind.App., 520 N.E.2d 123, 125; Gorski v. Deering (1984), Ind.App., 465 N.E.2d 759, 761.
Next, the trial court correctly entered summary judgment against the Paramos’s. While equitable estoppel will prevent a defendant from asserting a statute of limitation as a defense in an action where defendant by fraud or other misconduct prevents a party from commencing his action beyond the time allowed by law, Barnd v. Borst (1982), Ind.App., 431 N.E.2d 161, 166; Martin v. Levinson (1980), Ind.App., 409 N.E.2d 1239, 1242; Collins v. Dunifon (1975), 163 Ind.App. 201, 323 N.E.2d 264, 267; Donnella, Admrx. v. Crady (1962), 135 Ind.App. 60, 185 N.E.2d 623, 625, facts warranting imposition of that doctrine must be present. An equitable estoppel arises when the facts demonstrate
(1) a false representation or concealment of material facts made with actual or constructive knowledge of the true state of facts; and
(2) the representation is made to one without knowledge or reasonable means of knowing the true facts with the intent he or she will rely on it; and
(3) the second party must rely or act upon such representation to his or her detriment.
Coghill, supra, 418 N.E.2d at 1208-1209. See also Hollins v. Yellow Freight System (1984), 590 F.Supp. 1023 (court granted defendant’s motion for summary judgment finding defendant’s representation he was willing to settle the case for $6,000 to $7,000 and defendant would get back to plaintiff with the precise settlement amount did not raise a material issue of fact.)
Here, the insurance adjuster did not make a false representation or conceal a material fact. To be actionable a representation must be of an affirmative character *983and fraudulent. See e.g. Barnd, supra, at 166. The Paramos’s affidavit merely shows the parties were attempting to settle a potential lawsuit, and nothing more. As a matter of law, settlement negotiations do not give rise to a reasonable inference the insurance carrier will not rely on the statute of limitation as an affirmative defense. Collins, supra, at 267. Accordingly, I would affirm the trial court on the basis those negotiations including the alleged agreements do not establish affirmative conduct calculated to mislead or lull the plaintiff into inaction.
Also, the second prong of the Coghill test requires a defendant to be without knowledge of the true facts. Here, Cohen knew or had the capability to ascertain the true facts, namely, the statute of limitation was about to run its course. To find equitable estoppel, the misrepresentation or fraud must be of such a character as to prevent inquiry or elude investigation or to mislead and hinder the party who has the cause of action from obtaining the necessary information by the use of ordinary diligence. Barnd, supra, at 166; see also Taylor v. Jensen (1985), Ind.App., 475 N.E.2d 315, 317-318 (plaintiffs attempt to add additional parties after the statute had run because defendant negotiated with plaintiff’s attorney without evidence defendant kept plaintiff from discovering her legal rights and responsibilities denied). Where facts are equally accessible to both parties, estoppel will not be applied. Barnd, supra, at 168.
The Paramos were at all times represented by an attorney. This is not a case such as Marcum v. Richmond Auto Parts Co. (1971), 149 Ind.App. 120, 270 N.E.2d 884, where the insurance company was dealing with unrepresented “guileless and trusting plaintiffs,” Id. at 886. This case is analogous to the facts in Taylor where plaintiffs were represented by counsel at all times and bargained at arm’s length.
For those reasons I would affirm the trial court in all things.