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WALTERS v. DITZLER (03/14/67)

decided: March 14, 1967.

WALTERS, APPELLANT,
v.
DITZLER



Appeal from judgment of Court of Common Pleas of Lancaster County, June T., 1962, No. 8, in case of Daniel J. Walters, a minor, by his guardian, William B. Walters, and William B. Walters v. A. F. Ditzler.

COUNSEL

John Milton Ranck, with him Charles Foltz Herr, and Appel, Ranck, Herr & Appel, for appellants.

John R. Gibbel, with him Bernard M. Zimmerman, and Zimmerman, Zimmerman, Myers & Gibbel, for appellee.

Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Musmanno. Mr. Justice Roberts joins in this dissenting opinion.

Author: Jones

[ 424 Pa. Page 447]

On July 2, 1958, Daniel J. Walters, aged four years, while traversing a highway located upon a bridge near Brickerville, Lancaster County, was struck by a motor vehicle operated by A. F. Ditzler and sustained very serious personal injuries.

Following the accident, Ditzler told William Walters, the child's father, that he was insured by Harleysville Insurance Company and that he was sure the insurance company would take care of it "because that's what [I] pay premiums for". Six weeks after the accident -- when the child was in a condition of complete physical helplessness -- an adjuster called at Walters' home. Certain nursing bills were discussed and were turned over to the adjuster by the Walters; the adjuster then told Walters that the insurance company did not pay bills "piecemeal", that it would have to be a "lump sum settlement", that by reason of the child's minority, any settlement would have to be

[ 424 Pa. Page 448]

    approved by the court and that no settlement could be made until the child was "rehabilitated". Two days later, the adjuster returned the nursing bills to the Walters. Until April 17, 1961 -- two years and nine months after the accident -- there was no further contact between the insurance carrier or its adjuster and the Walters.

On April 17, 1961, Mrs. Walters wrote a letter to the insurance company stating, inter alia: "We would like to make settlement at this time". Eleven days later, the insurance company wrote to the Walters stating, inter alia: "We have reviewed our file in regard to this matter, and find that the Pennsylvania Statute*fn1 has expired and we will be unable to be of any service to you."*fn2

Fourteen months later -- and three years and eleven months after the date of the accident -- the present trespass action was instituted in the Court of Common Pleas of Lancaster County against Ditzler. When Walters filed their complaint, Ditzler, acting through his insurance carrier, filed an answer containing new matter which raised the defense of the statute of limitations to which new matter Walters filed a reply alleging Ditzler was estopped to raise the defense of the statute by reason of the conduct of the insurance company adjuster when he visited the Walters' home on August 16, 1958. Ditzler filed a motion for judgment on the pleadings which was dismissed. Walters then filed an amended reply wherein the allegations

[ 424 Pa. Page 449]

    as to the adjuster's alleged fraudulent and misleading conduct were particularized and wherein there was an additional allegation that, by reason of the minority and incompetency of the child, the bar of the statute was tolled. After a hearing, the court below entered judgment in favor of Ditzler and against Walters. From that judgment the instant appeal was taken.

As presented by Walters' counsel, the issue presented is: where an insurance adjuster stated that the insurance company will not pay bills "piecemeal", that until the child is "rehabilitated" there cannot be a settlement and that the insurance company would only make a "lump sum settlement", subject to court approval because of the child's minority, and where the parents of the child were thus led to believe that the insurance company would pay the claim, was the adjuster's conduct of such fraudulent, misleading and deceptive nature as to estop Ditzler from raising the defense of the statute of limitations?

Presently pertinent are certain well settled legal principles: (a) mere mistake, misunderstanding or lack of knowledge do not toll the running of the statute of limitations: Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267 (1963), and authorities therein cited; (b) if, through fraud, deception or concealment of facts, an insurance company lulls an injured person or his representatives into a sense of security so that such person's vigilance is relaxed, then the company is estopped from evoking the statute: Schaffer v. Larzelere, supra, p. 405, and authorities therein cited; (c) the fraud which will toll the statute and effect an estoppel need not be fraud in the strictest sense, i.e., inclusive of an intent to deceive, but may be fraud in the broad sense, i.e., inclusive of an unintentional deception: Nesbitt v. Erie Coach Co., 416 Pa. 89, 96, 204 A.2d 473 (1964); Schwab v. Cornell, 306 Pa. 536, 539, 160 A. 449 (1932); (d) an estoppel becomes operative only

[ 424 Pa. Page 450]

    in clear cases of fraud, deception or concealment: Bonfitto v. Bonfitto, 10 Pa. D. & C. 2d 598, aff'd 391 Pa. 187, 137 A.2d 277 (1958); Gunn v. Washek, 109 P.L.J. 286, aff'd 405 Pa. 521, 176 A.2d 635 (1961); (e) the statute of limitations will run against persons under a disability, including minors and incompetents: Walker v. Mummert, 394 Pa. 146, 146 A.2d 289 (1958);*fn3 Von Colln v. Penna. R.R. Co., 367 Pa. 232, 80 A.2d 83 (1951).

Applying these principles to the instant factual situation, it is evident that the doctrine of estoppel cannot be successfully invoked and that the running of the statute of limitations has not been tolled. We agree with the court below: "According to the facts as found by the court from the testimony, [Walters] have not met the burden of proving by clear, precise and convincing evidence the existence of such fraud or concealment as would estop [Ditzler and his insurance carrier] from pleading the Statute of Limitations. There is no factual dispute that the negotiations were merely toward an amicable settlement. The nursing bills . . . were discussed and given to . . . the adjuster, who returned them to [Walters] on August 18, 1958 and there is no evidence that other accrued bills were sent to [Ditzler's] insurance carrier or its adjuster, . . ., nor is there any evidence that [Ditzler] or his insurance carrier, through its adjuster, ever said they would see [Walters] again . . . . However ...


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