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January 11, 1961

Harold DELSON and Lyn Delson, Plaintiffs,
Virginia D. MINOGUE and John Minogue, Defendants

The opinion of the court was delivered by: MISHLER

This is a motion for judgment on the pleadings, pursuant to Rule 12(b), or for summary judgment, pursuant to Rule 56(b), Fed.Rules Civ.Proc. 28 U.S.C.A. dismissing the complaint on the ground that the action is barred by the one-year Connecticut Statute of Limitations. C.G.S.A. § 52-584.

Plaintiffs, residents of Rhode Island, bring this action for property damage and personal injuries sustained on October 27, 1957, in the State of Connecticut, against the defendants, residents of the State of New York. The moving papers show that the complaint was filed in the office of the Clerk of this Court on the 20th day of April 1959, approximately eighteen months after the occurrence.

 The opposing affidavits do not dispute the application of the one-year Statute of Limitations in this case. Plaintiffs, however, set forth facts which plaintiffs claim constitutes an equitable estoppel which, in effect, would bar the defendants from setting up the Statute of Limitations.

 Plaintiff, Harold Delson, states that prior to November 8, 1957, one William J. Marx telephoned him and arranged for an appointment at plaintiff's home on November 8, 1957. Mr. Marx represented that he was an investigator and adjuster for the insurance company, insuring the above-named defendants for loss sustained by reason of defendants' negligence. Mr. Marx visited the plaintiffs at their home on the appointed date. At his request, plaintiffs signed a four-page statement, concerning the happening of the accident. The affidavit then relates that Mr. Marx advised the plaintiffs that they had a 'perfect case and that the same would be settled; that it is not necessary to hire a lawyer, that it will be a question of how much the company will offer; that in the meantime plaintiffs should cooperate by submitting the property damage bill; permit an inspection of said automobile; submit doctors' bills and to submit themselves to be examined by the insurance company doctor to be designated.' (Italics supplied.)

 The affidavit continues that there were many conversations subsequent to November 8, 1957, concerning the settlement of the claim; that Mr. Marx repeated 'that there was no necessity to hire a lawyer to sue as that would be costly to Plaintiff and that if he did so, the insurance company would handle the case differently to his detriment.'

 The affidavit states that after July 1, 1958, Mr. Marx advised the plaintiff that the file was forwarded to the New York office and that the claim would be settled. It thereafter became increasingly difficult to contact Mr. Marx. When he was finally reached, he requested the plaintiffs to be patient and that 'this case will be settled.'

 On October 3, 1958, plaintiff, Harold Delson, visited Joseph Segal, an attorney-at-law, and retained him in this matter. The plaintiff did not advise his attorney of the negotiations he had with Mr. Marx. At the time the plaintiff retained his attorney, the attorney was suffering from a serious illness which prevented him from attending to his duties. At the time of the retainer and for sometime time thereafter, the attorney did not know that there was a one-year Statute of Limitations governing this matter, and was too preoccupied with his own illness for some months thereafter to investigate and determine the law and the facts of the case. On October 14, 1958, a claim letter was sent to Mr. Marx on behalf of the plaintiffs. The attorney first learned of all the negotiations that had preceded his retainer, after an action was started, and the answer was interposed.

 The reply affidavit of John E. Morris, attorney for the defendants, points out that at the time of the retainer the Statute of Limitations had not yet run, and that 24 days remained for the commencement of an action; he further states that neither the illness of the attorney, nor the plaintiffs' ignorance of the law, is a basis for equitable estoppel.

 The principal questions raised on this motion are:

 1) May the plaintiff raise equitable estoppel as an issue where it was not pleaded, and

 2) Has the plaintiff presented a question of fact on equitable estoppel.

 Plaintiffs' claim will not be defeated on motion for summary judgment or judgment on the pleadings simply because the pleadings do not reflect the facts that would overcome defendants' affirmative defense. In Rossiter v. Vogel, 2 Cir., 1943, 134 F.2d 908, 912, the Court said, at page 912:

 '* * * Where facts appear in affidavits upon motion for a summary judgment which would justify an amendment of the pleadings, such amendment should not be ...

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