Dunn v. Progress Industries, Inc.

734 P.2d 604, 153 Ariz. 62, 1986 Ariz. App. LEXIS 725
CourtCourt of Appeals of Arizona
DecidedNovember 6, 1986
Docket1 CA-CIV 8526
StatusPublished
Cited by10 cases

This text of 734 P.2d 604 (Dunn v. Progress Industries, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunn v. Progress Industries, Inc., 734 P.2d 604, 153 Ariz. 62, 1986 Ariz. App. LEXIS 725 (Ark. Ct. App. 1986).

Opinions

OPINION

GRANT, Judge.

This appeal arises out of an action by appellant, Stanley M. Dunn (Dunn), to recover damages for personal injuries sustained as a result of a truck accident. The trial court granted summary judgment in favor of appellee, Progress Industries, Inc. (Progress). Guided by the principle that summary judgment is improper provided there is any genuine issue of material fact, Livingston v. Citizen’s Utility, Inc., 107 Ariz. 62, 481 P.2d 855 (1971), we consider the facts of this case in a light most favorable to Dunn. See Farmers Ins. Co. of Ariz. v. Vagnozzi, 138 Ariz. 443, 675 P.2d 703 (1983).

FACTS

On November 2, 1982, Dunn was driving a 1976 freightliner truck on Interstate 10 near Tucson, Arizona. Traveling in front of Dunn was a vehicle driven by James Foster, employed by Progress. A spare tire, attached to the rear of Foster’s vehicle, fell off into the lane occupied by Dunn. In an effort to evade the tire, Dunn collided with the median wall in the center lane and was injured.

On November 4, 1982, Dunn filed an industrial claim with his employer, Safeway Stores, Inc. The claim was accepted for benefits on November 15, 1982, and Dunn received medical and other benefits under the Arizona Workers’ Compensation Act.

Within two years thereafter, on October 31,1984, Dunn filed a complaint in superior court seeking recovery for his injuries from several defendants, including Progress. In February 1985, Progress moved for summary judgment on the ground that Dunn’s claim was barred because at the time of its filing the cause of action had already been assigned to Dunn’s workers’ compensation carrier by operation of law pursuant to A.R.S. § 23-1023(B). Progress further noted in its motion that because the two-year statute of limitations for personal injuries, A.R.S. § 12-542, had expired without reassignment of the cause of action, the claim was completely time barred. On or about March 12, 1985, Dunn obtained a retroactive reassignment of his industrial claim cause of action from his employer, Safeway Stores, Inc.

By a minute entry dated June 18, 1985, the trial court granted Progress’s motion for summary judgment on the ground that Dunn’s claim was barred because the reassignment occurred after the statute of limitations had run. This appeal followed.

ISSUES

Dunn first argues that a triable issue exists as to whether Progress was es-topped from asserting the statute of limitations defense. Dunn also contends that as a matter of law the reassignment of the claim was retroactive, thus preserving the cause of action.

ESTOPPEL

In support of his argument that a prima facie case of estoppel exists, Dunn points out that he submitted to the trial court an affidavit setting forth the following facts: 1) Dunn was contacted by the insurance company representing Progress before November 2, 1984, and was advised that his claim would be settled as soon as his medical condition stabilized; and 2) on October 29, 1984, Dunn received a letter from a claims adjuster of Progress’s insurance company misinforming Dunn that he had until November 2, 1985, to file a lawsuit. Dunn maintains that a reasonable person could conclude that as a result of these representations Dunn was induced not to file his claim within the statutory period and further induced not to obtain the necessary reassignment prior to the expiration of the statutory period.

At the outset we note that to the extent Dunn contends these two representations caused him not to meet the limitations period for a personal injury claim, his estoppel argument is misplaced. Indeed, Dunn did commence this lawsuit within the two-year statutory period for personal injuries estab[64]*64lished by A.R.S. § 12-542. However, Dunn failed to bring suit within one year of the accident. Dunn also did not obtain a reassignment of the claim prior to the expiration of the two-year statutory period. Accordingly, when Dunn filed his complaint, he was without statutory right to the negligence claim. Stephens v. Textron, Inc., 127 Ariz. 227, 619 P.2d 736 (1980); Hills v. Salt River Project Association, 144 Ariz. 421, 698 P.2d 216 (App.1985). A.R.S. § 23-1023(B) provides in pertinent part as follows:

If the employee entitled to compensation under this chapter, or his dependents, does not pursue his or their remedy against such other person by instituting an action within one year after the cause of action accrues, the claim against such other person shall be deemed assigned to the insurance carrier, or to the person liable for the payment thereof. Such a claim so assigned may be prosecuted or compromised by the insurance carrier or the person liable for the payment thereof, or may be reassigned in its entirety to the employee or his dependents. After the reassignment, the employee entitled to compensation, or his dependents, shall have the same rights to pursue the claim as if it had been filed within the first year.

Therefore, the issue for our determination is whether there is any evidence of conduct by Progress or its agents which could have reasonably caused Dunn’s failure to obtain a reassignment prior to the expiration of the statutory period. To avoid the trial court’s grant of summary judgment, Dunn would have had to present evidence of the following elements: 1) conduct by Progress (or its agents) inducing Dunn to believe in a certain state of facts; 2) justifiable action by Dunn in reliance on the apparent facts; 3) injury to Dunn resulting from the reliance. G & S Investments v. Belman, 145 Ariz. 258, 700 P.2d 1358 (App.1985); Darner Motor Sales v. Universal Underwriters, 140 Ariz. 383, 682 P.2d 388 (1984).

On this record, there is no prima facie case of estoppel. Admittedly, the statement that Dunn’s claim was going to be settled could support a finding that Dunn generally believed it unnecessary to file this negligence suit. Nevertheless, as previously indicated, Dunn did commence the lawsuit within the two-year statutory period and, thus, any question of failing to file a claim is clearly not before us.

Assuming the admissibility of the settlement statement, we do not think that it standing alone, supports an inference that Dunn was induced to believe that a reassignment of his claim was unnecessary. Without additional evidence it is impossible to determine the effect, if any, of the statement. This absence of sufficient evidence of detrimental reliance precludes a prima facie case of estoppel. Bohonus v. Amerco, 124 Ariz. 88,

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Dunn v. Progress Industries, Inc.
734 P.2d 604 (Court of Appeals of Arizona, 1986)

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Bluebook (online)
734 P.2d 604, 153 Ariz. 62, 1986 Ariz. App. LEXIS 725, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-progress-industries-inc-arizctapp-1986.