Alexander, J.
—Rollie Logan appeals an order of the Superior Court granting summary judgment in favor of North-West Insurance Co. (North-West) and dismissing Logan's cause of action. We affirm.
The undisputed facts of the case are as follows. On or about October 15, 1976, Logan's logging equipment, covered under an insurance policy with North-West, was destroyed by fire. Logan filed a sworn proof of loss with North-West on or about February 14, 1977. On April 4, 1977, NorthWest filed an action in the Pierce County Superior Court, in which it sought a declaration of the rights and obligations of the parties under the insurance policy. North-West alleged in its complaint that Logan had caused or arranged the fire that resulted in his loss.
A notice of appearance was filed by an attorney on behalf of Logan on April 14, 1977, but no responsive pleading was filed at that time. On October 15, 1979, the Pierce County clerk mailed a notice to Logan's attorney, informing him that the case would be dismissed in December, pursuant to CR 41(b)(2), for want of prosecution. Logan's counsel responded by filing a motion for continuance dated November 29, 1979, supported by an affidavit in which he stated that he would file an answer the "forthcoming week." Logan's motion for continuance was not noted for hearing. On December 1, 1979, no action having been taken by Logan other than the filing of the motion, a superior court judge signed an order dismissing the action without [97]*97prejudice.
After the cause of action had been dismissed, Logan's counsel filed an answer, affirmative defense, and "cross-claim" in the file of the dismissed case. In his responsive pleading, Logan prayed that North-West's complaint be dismissed and that he be given an award for "his losses under the policy." The matter was assigned a trial date of September 24, 1980, however, the matter did not proceed to trial on that date. Eventually, a superior court judge discovered, at a motion hearing, that the case had previously been dismissed and thus no action was thereafter taken in the matter.
On February 23, 1982, about 5 years and 4 months after the fire, Logan filed a complaint for damages against North-West in a new cause of action in the Pierce County Superior Court. North-West responded by filing a motion for summary judgment, claiming that Logan's complaint should be dismissed because of his failure to file his suit within 1 year of the discovery of the occurrence giving rise to the claim. The Superior Court granted the motion. Logan appeals that ruling to this court.
Logan's North-West insurance policy contained a 1-year limitation clause:
No suit, action or proceeding for the recovery of any claim under this policy shall be sustainable in any court of law or equity unless the same be commenced within twelve months next after discovery by the insured of the occurrence which gives rise to the claim,. . .
The broad issue in this case is whether, in light of these facts, the Superior Court erred in determining, as a matter of law, that the aforementioned provision foreclosed Logan's right to maintain suit against North-West. A summary judgment should be granted only when there are no genuine issues of material fact before the court and the moving party is entitled to a judgment as a matter of law. Peterson v. Pacific First Fed. Sav. & Loan Ass'n, 23 Wn. App. 688, 690, 598 P.2d 407 (1979).
A 1-year policy limitation, which requires an insured [98]*98to bring an action within 1 year of the loss, is a valid and enforceable provision. Hefner v. Great Am. Ins. Co., 126 Wash. 390, 391, 218 P. 206 (1923); Ashburn v. Safeco Ins. Co. of Am., 42 Wn. App. 692, 695, 713 P.2d 742 (1986). In order to avoid running afoul of the policy limitation, Logan needed to bring his action within 1 year of the discovery of the occurrence. He did not do that.
Logan argues, however, that the Superior Court erred in dismissing his claim, suggesting that the declaratory judgment action brought by North-West tolled the 1-year policy limitation. We reject this argument and hold that a declaratory judgment action brought by the insurer is not an action for the recovery of a claim under the 1-year limitation clause. Farmers Ins. Group v. Johnson, 43 Wn. App. 39, 45, 715 P.2d 144 (1986).1 Therefore, North-West's declaratory judgment action did not toll the 1-year policy limitation.
Logan's counterclaim (incorrectly denominated a "cross-claim") might have constituted an action for recovery of a claim under the policy. A counterclaim is not barred by the statute of limitations if the counterclaim would not have been barred by the statute of limitations at the commencement of the action in which it is pleaded. See J.R. Simplot Co. v. Vogt, 93 Wn.2d 122, 126, 605 P.2d 1267 (1980). Therefore, for purposes of tolling the policy limitation, an effective counterclaim by Logan would have related back to April 4, 1977, the date of the commencement of the original action by North-West. However, Logan's counterclaim was not effective because it was filed after the dismissal of North-West's declaratory judgment action. Hence, Logan's [99]*99counterclaim could not attach to the original action.
Under the unusual circumstances of this case, Logan's present action would have been barred by the policy limitations even if the counterclaim to the declaratory judgment proceeding had been filed before the order of dismissal in that action was entered. Where an original action is dismissed, a statute of limitations is deemed to continue to run as though the action had never been brought. Fittro v. Alcombrack, 23 Wn. App. 178, 179, 596 P.2d 665, review denied, 92 Wn.2d 1029 (1979); Gould v. Bird & Sons, Inc., 5 Wn. App. 59, 65, 485 P.2d 458, review denied, 79 Wn.2d 1009 (1971). We see no reason for a different rule in a case dealing with a policy limitation rather than a statute of limitations. Here, although North-West's original action was commenced within the 1-year time period, that action was dismissed. At the time of the dismissal on December 1, 1979, the 1-year policy limitation had effectively run as if the April 1977 action had never been brought. Logan's new cause of action, filed nearly bVz years after the discovery of the loss, was clearly barred by the 1-year policy limitation.
Logan also claims that North-West has waived the right to assert the 1-year policy limitation, or in the alternative that it is estopped from asserting the policy limitation. We find no evidence of either waiver or estoppel.
Waiver is defined as "the voluntary and intentional relinquishment or abandonment of a known right, with the insurer's full knowledge of all the facts pertaining thereto . . ." Morrissette v. Continental Life & Accident Co., 9 Wn. App. 789, 791,
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Alexander, J.
—Rollie Logan appeals an order of the Superior Court granting summary judgment in favor of North-West Insurance Co. (North-West) and dismissing Logan's cause of action. We affirm.
The undisputed facts of the case are as follows. On or about October 15, 1976, Logan's logging equipment, covered under an insurance policy with North-West, was destroyed by fire. Logan filed a sworn proof of loss with North-West on or about February 14, 1977. On April 4, 1977, NorthWest filed an action in the Pierce County Superior Court, in which it sought a declaration of the rights and obligations of the parties under the insurance policy. North-West alleged in its complaint that Logan had caused or arranged the fire that resulted in his loss.
A notice of appearance was filed by an attorney on behalf of Logan on April 14, 1977, but no responsive pleading was filed at that time. On October 15, 1979, the Pierce County clerk mailed a notice to Logan's attorney, informing him that the case would be dismissed in December, pursuant to CR 41(b)(2), for want of prosecution. Logan's counsel responded by filing a motion for continuance dated November 29, 1979, supported by an affidavit in which he stated that he would file an answer the "forthcoming week." Logan's motion for continuance was not noted for hearing. On December 1, 1979, no action having been taken by Logan other than the filing of the motion, a superior court judge signed an order dismissing the action without [97]*97prejudice.
After the cause of action had been dismissed, Logan's counsel filed an answer, affirmative defense, and "cross-claim" in the file of the dismissed case. In his responsive pleading, Logan prayed that North-West's complaint be dismissed and that he be given an award for "his losses under the policy." The matter was assigned a trial date of September 24, 1980, however, the matter did not proceed to trial on that date. Eventually, a superior court judge discovered, at a motion hearing, that the case had previously been dismissed and thus no action was thereafter taken in the matter.
On February 23, 1982, about 5 years and 4 months after the fire, Logan filed a complaint for damages against North-West in a new cause of action in the Pierce County Superior Court. North-West responded by filing a motion for summary judgment, claiming that Logan's complaint should be dismissed because of his failure to file his suit within 1 year of the discovery of the occurrence giving rise to the claim. The Superior Court granted the motion. Logan appeals that ruling to this court.
Logan's North-West insurance policy contained a 1-year limitation clause:
No suit, action or proceeding for the recovery of any claim under this policy shall be sustainable in any court of law or equity unless the same be commenced within twelve months next after discovery by the insured of the occurrence which gives rise to the claim,. . .
The broad issue in this case is whether, in light of these facts, the Superior Court erred in determining, as a matter of law, that the aforementioned provision foreclosed Logan's right to maintain suit against North-West. A summary judgment should be granted only when there are no genuine issues of material fact before the court and the moving party is entitled to a judgment as a matter of law. Peterson v. Pacific First Fed. Sav. & Loan Ass'n, 23 Wn. App. 688, 690, 598 P.2d 407 (1979).
A 1-year policy limitation, which requires an insured [98]*98to bring an action within 1 year of the loss, is a valid and enforceable provision. Hefner v. Great Am. Ins. Co., 126 Wash. 390, 391, 218 P. 206 (1923); Ashburn v. Safeco Ins. Co. of Am., 42 Wn. App. 692, 695, 713 P.2d 742 (1986). In order to avoid running afoul of the policy limitation, Logan needed to bring his action within 1 year of the discovery of the occurrence. He did not do that.
Logan argues, however, that the Superior Court erred in dismissing his claim, suggesting that the declaratory judgment action brought by North-West tolled the 1-year policy limitation. We reject this argument and hold that a declaratory judgment action brought by the insurer is not an action for the recovery of a claim under the 1-year limitation clause. Farmers Ins. Group v. Johnson, 43 Wn. App. 39, 45, 715 P.2d 144 (1986).1 Therefore, North-West's declaratory judgment action did not toll the 1-year policy limitation.
Logan's counterclaim (incorrectly denominated a "cross-claim") might have constituted an action for recovery of a claim under the policy. A counterclaim is not barred by the statute of limitations if the counterclaim would not have been barred by the statute of limitations at the commencement of the action in which it is pleaded. See J.R. Simplot Co. v. Vogt, 93 Wn.2d 122, 126, 605 P.2d 1267 (1980). Therefore, for purposes of tolling the policy limitation, an effective counterclaim by Logan would have related back to April 4, 1977, the date of the commencement of the original action by North-West. However, Logan's counterclaim was not effective because it was filed after the dismissal of North-West's declaratory judgment action. Hence, Logan's [99]*99counterclaim could not attach to the original action.
Under the unusual circumstances of this case, Logan's present action would have been barred by the policy limitations even if the counterclaim to the declaratory judgment proceeding had been filed before the order of dismissal in that action was entered. Where an original action is dismissed, a statute of limitations is deemed to continue to run as though the action had never been brought. Fittro v. Alcombrack, 23 Wn. App. 178, 179, 596 P.2d 665, review denied, 92 Wn.2d 1029 (1979); Gould v. Bird & Sons, Inc., 5 Wn. App. 59, 65, 485 P.2d 458, review denied, 79 Wn.2d 1009 (1971). We see no reason for a different rule in a case dealing with a policy limitation rather than a statute of limitations. Here, although North-West's original action was commenced within the 1-year time period, that action was dismissed. At the time of the dismissal on December 1, 1979, the 1-year policy limitation had effectively run as if the April 1977 action had never been brought. Logan's new cause of action, filed nearly bVz years after the discovery of the loss, was clearly barred by the 1-year policy limitation.
Logan also claims that North-West has waived the right to assert the 1-year policy limitation, or in the alternative that it is estopped from asserting the policy limitation. We find no evidence of either waiver or estoppel.
Waiver is defined as "the voluntary and intentional relinquishment or abandonment of a known right, with the insurer's full knowledge of all the facts pertaining thereto . . ." Morrissette v. Continental Life & Accident Co., 9 Wn. App. 789, 791, 514 P.2d 1391 (1973). A party seeking to avoid a summary judgment cannot simply rest on the conclusory allegations in his pleadings, but the party must affirmatively present factual evidence upon which he relies. Mackey v. Graham, 99 Wn.2d 572, 576, 663 P.2d 490, cert. denied, 464 U.S. 894 (1983). Logan did not present any affidavits asserting that North-West voluntarily and intentionally waived its right to assert the 1-year policy limitation. Therefore, there is no genuine issue of material fact [100]*100concerning waiver.
An insurer may be estopped from asserting a right where the assertion of the right would be inequitable. Morrissette, 9 Wn. App. at 791-92. Logan asserts that it would be inequitable to allow the insurer to assert the policy limitation against him. There are three requirements for equitable estoppel:
(1) An admission, statement, or act inconsistent with the claim afterwards asserted; (2) action by the other party on the faith of such admission, statement, or act; and (3) injury to such other party from allowing the first party to contradict or repudiate such admission, statement, or act.
Rel v. Douglas Cy. Civil Serv. Comm'n, 20 Wn. App. 764, 766, 581 P.2d 1090 (1978), review denied, 91 Wn.2d 1011 (1979). An insurer will be estopped from insisting upon a forfeiture if the insurer's agreement, declaration, or course of action leads the insured to conduct based on that insured's honest belief that forfeiture of his policy will not occur. See Staats v. Pioneer Ins. Ass'n, 55 Wash. 51, 57, 104 P. 185 (1909). Once a suit has been brought, more positive evidence of misleading conduct should be required because the parties are dealing at arm's length. See Fratto v. New Amsterdam Cas. Co., 434 Pa. 136, 252 A.2d 606, 608 (1969).
The elements of estoppel are not present here. NorthWest did nothing to lure Logan into thinking that the loss would be paid or to prevent Logan from asserting a cause of action for coverage under the policy. On the contrary, North-West brought a suit for a declaratory judgment, asserting that no coverage should be allowed under the policy because Logan allegedly caused the property to be burned. Logan can hardly claim that this conduct, i.e., North-West's filing a complaint for declaratory judgment, lured Logan into believing that he need not assert his position, either by filing a counterclaim in that cause of action or by filing a separate action within the 1-year limitation [101]*101period. Logan presented absolutely no evidence of conduct by North-West that would support his claim of estoppel. Failing that, Logan is unable to withstand the motion for summary judgment. See Mackey v. Graham, supra.
The dismissal of Logan's cause of action is affirmed.
Worswick, C.J., concurs.