(concurring in part and dissenting in part) —For the reasons set forth in Cook v. State, 83 Wn.2d 599, 521 P.2d 725 (1974), I agree with the majority’s adherence to the doctrine of sovereign immunity and with its rejection of the constitutional challenge to RCW 4.92.100. Further, I agree that plaintiff, by filing an untimely claim, failed to comply with RCW 4.92.100. Finally, I acknowledge that the doctrine of equitable estoppel may be imposed against the state in a proper case. This, however, is not a proper case for its application. Therefore I dissent.
The majority correctly states that an equitable estoppel requires the establishment of three elements: (1) an admission, statement, or act, inconsistent with the claim after-wards asserted; (2) action by the other party on the faith of such admission, statement, or act; and (3) injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement, or act. Arnold v. Melani, 75 Wn.2d 143, 437 P.2d 908, 449 P.2d 800, 450 P.2d 815 (1968-69). However, an attempt to resolve this case solely by reliance on the above mentioned three elements, leads to an oversimplified and unwarranted result.
Leonard v. Washington Employers, Inc., 77 Wn.2d 271, 280-81, 461 P.2d 538 (1969), our latest pronouncement on the subject, contains two additional qualifications ignored by the majority:
*626The listed, elements are necessary to establish an equitable estoppel. But they are not necessarily alone sufficient. Not all those who rely upon another’s conduct or statements may raise an estoppel. Rather, it is only those who have a right to rely upon such acts or representations. . . .
The essence of both statements of the qualification is that, absent fraud or misrepresentation, estoppel runs in favor only of those who have reasonably relied on another’s conduct or declarations.
(Final italics mine.) In short, in addition to establishing the three initial requirements, one claiming an equitable estoppel must also have a right to rely on the one to be estopped and the reliance must have been reasonable.
The burden of proving one’s entitlement to an equitable estoppel is upon the one claiming it. PUD 1 v. Cooper, 69 Wn.2d 909, 918, 421 P.2d 1002 (1966). The burden is not sustained by mere argument or doubtful inference. PUD 1 v. Cooper, supra; Stouffer-Bowman, Inc. v. Webber, 18 Wn.2d 416, 428, 139 P.2d 717 (1943). No party should be precluded from making out his case according to the true facts unless by force of some positive principle of law. PUD 1 v. Cooper, supra; Stouffer-Bowman, Inc. v. Webber, supra. Thus, the doctrine of equitable estoppel “must be applied strictly, and should not be enforced unless substantiated in every particular.” (Italics mine.) PUD 1 v. Cooper, supra at 918, quoting from Stouffer-Bowman, Inc. v. Webber, supra at 428.
Considering that plaintiff has the burden of proving her entitlement to an equitable estoppel and that the doctrine should not be enforced unless substantiated in every particular, it is clear the doctrine is not applicable in this case. There is nothing to establish either that plaintiff had a right to rely on the state’s employees, or having relied, that she did so reasonably.
According to affidavits of plaintiff and her attorney, the injury in question occurred in a state liquor store on March *62729, 1968. At that time the nonclaim provision of RCW 4.92.100 began to run.
Apparently the matter was reported to the store’s employees and a district supervisor on or about April 1, 1968. The supervisor suggested that plaintiff call a specific Assistant Attorney General. The call was not made until May 13, 1968. By that time, approximately one-half of the time allotted under RCW 4.92.100 had elapsed. It is of interest that neither the majority opinion nor the plaintiff seems to assume anything had occurred up to this time to support an equitable estoppel. Indeed, the operative facts to support a claim were as well known to plaintiff as they were to the state’s employees.
Plaintiff retained an attorney to handle her potential action against the state. While the record does not disclose the exact date of his employment, it is clear he was in her employ on May 13, 1968, the date on which she telephoned the designated Assistant Attorney General. On that date, plaintiff contends she related the circumstances of her injury to the Assistant Attorney General and he acknowledged an awareness of it and indicated he had a file on the case. Plaintiff expressed concern that her insurance might not cover the anticipated additional surgery “and asked him . . . about making a partial settlement of funds to help defray the medical expenses. He answered, ‘No, we can’t do it that way — you will have to wait until all medical expenses are incurred, and your doctor has dismissed you, then you should submit a claim through your attorney.’ ” Thereafter, plaintiff called her own attorney, reported the conversation, and did nothing further. The plaintiff and the majority appear to base their theory of equitable estoppel on the foregoing conversation with the Assistant Attorney General.
It is significant that plaintiff not only had a lawyer to represent her in the potential action, but that she reported the conversation to him. At that time either or both of them still had at least 75 days to act on the claim pursuant to RCW 4.92.100. It is also significant that she did not rely *628on the Assistant Attorney General’s statement. She referred the matter to her own lawyer for action. Finally, it is important that the affidavits of plaintiff and her attorney contain no assertion that either of them relied upon or acted upon the statement of the Assistant Attorney General. This is not surprising. The asserted comment was not a statement of fact. At best, it was a legal opinion and the legal status of the claim was as available to plaintiff’s attorney as it was to the state. So, too, were the operative facts.
This court has' had occasion to determine whether one who has a lawyer can be said to have acted in reliance on an opponent’s representation of the law and/or facts. We have held that when one hires an attorney before acting, and that attorney has an adequate opportunity to make an independent investigation of the facts and/or the law, it cannot be said that there was action in reliance. See Rhodes v. Owens, 101 Wash. 324, 172 P. 241 (1918); Palmer v. Shields, 71 Wash. 463, 128 P. 1051 (1913). In State v. Northwest Magnesite Co., 28 Wn.2d 1, 24, 182 P.2d 643 (1947), we stated it thusly:
It is ... unfortunate that the commissioner . . . expressed his opinion . . . that the statutes in force were not applicable . . . However, such expression of opinion as to the law, the facts being equally well known to both parties, cannot preclude the state from asserting the true effect of the statutes . . . Turner v. Spokane County, 150 Wash. 524, 273 Pac. 959.
It is only logical to conclude that, having retained her own attorney and having referred the alleged conversation to him when he still had over 2 months to act,5 plaintiff should not be permitted to shift the responsibility for filing the claim from her attorney and herself to the state by *629means of an unwarranted application of the equitable estoppel doctrine. As we indicated in Palmer, if plaintiff was misled or deceived, it was the fault of her own attorney not the f atilt of the state.
Finally, considering the three elements of equitable estoppel recited by the majority, one must say that two have not been established. First, there is no proof of an admission, statement, or act inconsistent with the state’s later assertion of the nonclaim statute. At best, the Assistant Attorney General’s comment was an opinion of law. Plaintiff had her own lawyer to advise her in this regard. Second, plaintiff did not act in reliance upon any admission, statement, or act of a state employee. Rather, she retained her own lawyer and referred the information and prosecution of the action to him. The operative facts were known to all. Finally, plaintiff having retained her own lawyer and having referred the matter to him when there was adequate time for him to take proper action, had no right to rely on the state’s alleged advice. If, however, plaintiff did rely thereon, the reliance was not reasonable. Thus, according to Leonard v. Washington Employers, Inc., supra, plaintiff has failed to establish the two additional essential elements of equitable estoppel.
I dissent from that portion of the opinion which has invoked the doctrine of equitable estoppel.
Hale, C. J., concurs with Stafford, J.
The affidavit of plaintiff’s attorney indicates that he took no positive action until about October 9, 1968, when he made a telephone inquiry about the location of the state’s files on the case. This occurred long after the nonclaim statute had run. Finally, plaintiff’s attorney did not file the requisite claim until nearly 2½ months after the last date permitted by RCW 4.92.100.