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Manterola v. Farmers Insurance Exchange8/28/2001
edly concealing the policy's severability clause when it moved for summary judgment in the DRA created a fact question precluding summary dismissal of her complaint. We disagree. As we have discussed, the DRA did not toll, suspend, or otherwise affect the statute of limitations on Manterola's bad faith claim, at least after the Eliases had executed the Morris agreement. Thus, even assuming arguendo Farmers concealed information in the DRA, that caused no harm to the Eliases and had no effect, equitable or otherwise, on when Manterola's bad faith claim accrued.
Finally, we reject Manterola's related assertion, also raised in her motion for reconsideration below, that other policy considerations underlying the statute of limitations militate against dismissal of her complaint. She urges that those concerns "are not served by their application to wrongly delayed claims of survivors of sexual molestation/assignees of negligent insureds' bad faith claims"; she "should not be punished for a lack of 'diligence' when she was actively litigating coverage" in the DRA; and Farmers should not be rewarded for its "disingenuous litigation antics" in the DRA.
But, again, Farmers' filing and pursuit of the DRA does not justify or explain Manterola's failure to assert her bad faith claim until over two years after the underlying judgment in her PI action had become final. She does not cite, nor have we found, any authority excusing an untimely filing based on the plaintiff's involvement in a related action with the same defendant. Indeed, Manterola could have and, as Farmers posits, arguably should have asserted her bad faith claim as a counterclaim in the DRA, thereby avoiding dismissal here on statute of limitations grounds. Ariz. R. Civ. P. 13(a), 16 A.R. S., Pt. 1. See also Barerra; Young. In any event, we conclude that the policy concerns underlying adherence to the limitations period--to protect defendants and courts from the burden of stale claims and to provide some assurance of security and finality--weigh in favor of finding Manterola's claim time barred. See Ritchie v. Grand Canyon Scenic Rides, 165 Ar iz. 460, 464, 799 P.2d 801, 805 (1990).
In sum, neither Manterola's proffered equitable considerations nor Farmers' filing of its DRA tolled the limitations period on Manterola's bad faith claim. At the latest, that claim accrued in May 1996, thirty days after the entry of final judgment in her PI action against the Eliases, with no appeal therefrom having been filed. Because Manterola filed her bad faith action more than two years after that date, the trial court properly dismissed the complaint.
DISPOSITION
The trial court's order dismissing Manterola's complaint based on the statute of limitations is affirmed. Because Manterola is not the prevailing party on appeal, her request for attorney's fees on appeal, pursuant to A.R.S. ยง 12-341.01, is denied. Beckler v. State Farm Mut. Auto. Ins. Co., 195 Ariz. 282, 38, 987 P.2d 768, (App. 1999).
JOHN PELANDER, Judge
CONCURRING:
J. WILLIAM BRAMMER, JR., Presiding Judge
M. JAN FLOREZ, Judge
Page 1 2 3 4 5 6 7 8 9 Arizona Personal Injury Attorneys
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