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Muhammed v. Welch2/25/2004
REVERSED AND REMANDED.
[ ] Sefin Muhammed appealed from a summary judgment dismissing his personal injury action against Ellen Welch arising out of an automobile accident. We conclude the district court improperly granted summary judgment because Muhammed has raised a genuine issue of material fact whether the defendant is equitably estopped from raising the statute of limitations as a bar to the action. We reverse and remand for further proceedings.
I.
[ ] On December 27, 1995, Muhammed was a passenger in a vehicle that was struck by Welch's vehicle in Fargo. The next day, Carlton Goughnour, an adjuster with Noble Adjustment Company, was assigned by Welch's insurer, Austin Mutual Insurance Company, to investigate and adjust a claim relating to the accident. After investigating the accident, Goughnour did not anticipate any personal injury claims and closed the file in August 1996. On April 30, 1998, Welch died from unrelated causes. No probate proceedings were initiated after her death and no personal representative was appointed for her estate.
[ ] In January 1999, an attorney contacted Goughnour and informed him he was representing Muhammed on a personal injury claim arising from the accident. Unaware that Welch had died, Goughnour reopened the file and initiated settlement discussions with Muhammed's attorney. In July 2001, Muhammed's present attorneys began representing him on the claim.
[ ] On September 12, 2001, Muhammed sued "Ellen Welch" and a summons and complaint were served by certified mail, restricted delivery, addressed to "Ellen Welch, P.O. Box 751, Dalton, MN 56324." Pat Welch, Ellen Welch's widower, received and signed for the certified mail on September 13, 2001, and turned it over to his insurance agent. The insurance agent forwarded the summons and complaint to Austin Mutual and also informed the company that Ellen Welch had died. Goughnour then learned that Ellen Welch was dead.
[ ] Goughnour contacted Muhammed's attorney and requested an indefinite extension of time to answer the complaint in the hope that a settlement could be reached. Muhammed's attorney granted the request. Goughnour did not tell Muhammed's attorney Ellen Welch was dead. In September 2001, Goughnour sent Muhammed's attorney a letter stating in part:
During our conversation, you granted an indefinite time to answer your Summons and Complaint. Summons and Complaint was filed as statute of limitations was about to run out December of this year. We further discussed our $10,000 offer to your client, at the time he was represented by Paul Johnson. This offer stands.
[ ] Settlement discussions continued until March 13, 2002, when Muhammed's attorney withdrew the indefinite extension of time to file an answer. Ellen Welch's death was not disclosed to Muhammed's attorney during any of the settlement negotiations. On March 27, 2002, the day the statute of limitations expired, an answer was interposed on behalf of "Defendant Ellen Welch," stating in part that "Defendant Ellen Welch" demanded a trial by a jury of nine. Her death was not disclosed in the answer. On April 10, 2002, the defense served an amended answer raising insufficiency of process and service of process and lack of subject matter jurisdiction. Muhammed's attorney was not advised of Ellen Welch's death until May 23, 2002.
[ ] In January 2003, the defendant moved for summary judgment, arguing the action should be dismissed for insufficient service of process and because it was barred by the statute of limitations. Muhammed argued service on Pat Welch constituted service on Ellen Welch's estate; the defendant fraudulently concealed Ellen Welch's de
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