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COURT OF APPEALS DECISION DATED AND RELEASED June 4, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2670
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
SYLVESTER RAKOWSKI and
BONNIE RAKOWSKI,
Plaintiffs-Appellants,
v.
MILWAUKEE MUTUAL
INSURANCE COMPANY,
a Wisconsin
corporation and
TIMOTHY SAM MURATORE,
alias,
K-LINE TRUCKING, INC.,
a Wisconsin
corporation,
Defendants-Respondents,
PROGRESSIVE CASUALTY
INSURANCE COMPANY,
a foreign corporation,
Defendant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
MICHAEL P. SULLIVAN, Judge. Affirmed
in part; reversed in part and cause remanded for further proceedings.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. Sylvester and Bonnie Rakowski appeal from a
summary judgment entered in favor of Milwaukee Mutual Insurance Company,
Timothy Sam Muratore and K-Line Trucking, Inc.
The Rakowskis claim the trial court erred in granting summary judgment
on the basis of the statute of limitations because material issues of fact
existed regarding their claim that Milwaukee Mutual was equitably estopped from
asserting the statute of limitations defense.
Because the pleadings submitted raise issues of material fact on the
equitable estoppel issue, we reverse and remand for further proceedings.
I. BACKGROUND
On March 15, 1992, Mr.
Rakowski was involved in an automobile accident in Chicago, Illinois. For the next several years, Mr. Rakowski
communicated with a claims adjustor, Linda Castro, at Milwaukee Mutual in an
attempt to settle his claim. Mr.
Rakowski and Castro have very different recollections as to the substance of
those conversations. No settlement
agreement was ever reached.
In February 1995,
Rakowski retained an attorney and filed suit on March 13, 1995. Milwaukee Mutual filed an answer on
March 22, 1995. Three months
later, Milwaukee Mutual filed a motion to dismiss the complaint on the basis
that the statute of limitations had expired.[1] The basis for the motion was that the
Illinois two-year personal injury statute applied rather than the three-year
Wisconsin personal injury statute. In
opposition to the motion, the Rakowskis filed an amended complaint, alleging
that Milwaukee Mutual should be equitably estopped from asserting the two-year statute
of limitations because Castro had made certain representations to Mr. Rakowski
which unfairly caused him to forego filing the action earlier. In addition, Mr. Rakowski filed an
affidavit, alleging in pertinent part:
that shortly after the accident he received a phone call from Castro,
who took his statement and told him she would periodically check on his
progress; that Rakowski complied with all of Castro's requests to sign medical
and employment authorizations; that during 1992, Castro called Rakowski from
time to time and told him that the bills were being paid; that during 1993,
Castro called Rakowski on numerous occasions, and told him not to “rush his
recovery” but to keep going to the doctor as needed and that the bills would be
paid; that during the two years following the accident, Rakowski had several
phone conversations with Castro during which she indicated that settlement
could not occur until she received all of his medical and employment
information; and that in 1993, Castro had Rakowski sign additional medical
releases.
The trial court ruled
that although there were clearly disputed issues of fact, that the disputed
issues were not material and granted Milwaukee Mutual's motion and
entered judgment dismissing the complaint.
The Rakowskis now appeal.
II. DISCUSSION
We review grants of
summary judgment de novo. McCarty v.
Covelli, 182 Wis.2d 342, 345, 514 N.W.2d 45, 46 (Ct. App. 1994). Summary judgment methodology is well known
and we will not repeat it here. See
Grams v. Boss, 97 Wis.2d 332, 338-39, 294 N.W.2d 473, 476-77
(1980).
After an independent
review of the record, we conclude that Rakowski's submissions do raise issues
of material fact regarding the doctrine of equitable estoppel. The doctrine of equitable estoppel can
operate as a bar to asserting the statute of limitations defense. Susedik v. Knutson, 52
Wis.2d 593, 594-96, 191 N.W.2d 23, 24 (1971).
It applies in circumstances where the party asserting the statute of
limitations had engaged in some wrongful conduct, which causes the injured
party to rely on such conduct so that a lawsuit is not filed within the
limitations period. Id.
at 596-98, 191 N.W.2d at 24-26.
The Wisconsin Supreme
Court has set forth six factors to apply with respect to equitable estoppel claims: (1) the doctrine may be applied to
preclude a defendant who has been guilty of fraudulent or inequitable conduct
from asserting the statute of limitations; (2) the aggrieved party must
have failed to commence an action within the statutory period because of his or
her reliance on the defendant's representations or act; (3) the acts,
promises or representations must have occurred before the expiration of the
limitation period; (4) after the inducement for delay has ceased to
operate, the aggrieved party may not unreasonably delay; (5) affirmative
conduct of the defendant may be equivalent to a representation upon which the
plaintiff may rely to his or her disadvantage; and (6) actual fraud, in a
technical sense, is not required. Id.
at 596-97, 191 N.W.2d at 24-26.
Milwaukee Mutual argues
that Rakowski's submissions were insufficient to raise a material fact as to:
whether “acts, promises or representations ... occurred before the expiration
of the limitation period” and whether it was reasonable for Rakowski to rely on
anything that Castro may have said.
Milwaukee Mutual claims that the only representations Castro made during
the limitations period involved solely “everyday claims discussions.” Rakowski's submissions, however,
characterize the representations much differently. Rakowski claims that within the two years following the accident,
Castro represented that his bills were being paid and that Rakowski should not
worry about the claim.
We believe that
Rakowski's submissions raise a material issue of fact as to: (1) whether Rakowski did in fact
reasonably rely on Castro's statements, and (2) whether Castro actually
made statements that led Rakowski to believe his claim would be resolved without
having to file a lawsuit. Both of these
are material issues of fact that a fact-finder must resolve.
Accordingly, we reverse
and remand that portion of the judgment that granted summary judgment in favor
of Milwaukee Mutual.[2] A jury should decide the issue of whether
Milwaukee Mutual has waived the statute of limitations defense.
By the Court.—Judgment
affirmed in part; reversed in part and cause remanded for further proceedings.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.