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Law Offices of Steven D. Smith v. Borg-Warner Security Corp.12/23/1999
P.2d at 634. This holding does not conflict with the rule that fraudulent concealment precludes a defendant from relying on the statu e of limitations. Estoppel is "used as a means of preventing [a party] from taking an inequitable advantage of a predicament in which his [or her] own conduct had placed his [or her] adversary." Estoppel does not require that defendant's representation be the sole cause of plaintiff's predicament. It is enough that the representation influenced plaintiff's conduct. . . . hen a defendant accomplishes his or her goal of deceiving the plaintiff, then it should not matter that the plaintiff is partly at fault for his or her predicament unless his or her conduct is utterly unreasonable.[ ]
In Palmer I we held that the Palmer estate had not exercised due diligence[,] and that a diligent inquiry would have revealed the elements of the Palmer estate's cause of action against Borg-Warner. However, if the Palmer estate is able to show fraud or intentional concealment of material facts on the part of Borg-Warner, the Palmer estate's failure to engage in a reasonable inquiry will be excused.[ ]
Palmer II thus did not undermine Palmer I's holding that the estate (and Smith) had not reasonably inquired into the cause of the crash, i.e., that they had been "partly at fault for [their] predicament." This court merely concluded that, if Borg-Warner had previously fraudulently concealed evidence, then that conduct would equitably estop Borg-Warner to plead the statute of limitations. This was so even if the estate had been negligent, so long as it had not been "utterly unreasonable for the [estate] not to [have become] aware of the deception" before the limitation period had run. This court remanded the case to the superior court to reconsider the estate's Rule 60(b)(2) motion.
On remand, the superior court granted the estate's Rule 60(b)(2) motion in June 1994, vacating the summary judgment that had dismissed the estate's suit. The court found that, while "the attorneys for the Palmer Estate may have been negligent" in investigating the crash, "Borg-Warner's misrepresentations substantially influenced the Palmer Estate's actions," and the estate had not been "utterly unreasonable" in failing to discover the concealment before the March 1989 summary judgment. The estate then recovered five million dollars from Borg-Warner.
C. The Smith v. Borg-Warner Litigation
Palmer's estate entered into a contingent-fee contract with Smith in February 1987, five months after the crash. Smith filed the estate's untimely suit against Borg-Warner in September 1988. Borg-Warner's attorney suggested at oral argument on summary judgment that Smith could have found in the public record reason to sue Borg-Warner before the limitation period had run. The court granted summary judgment, and, in September 1989, while the estate's appeal was pending, the estate sued Smith for malpractice. In October 1989 Borg-Warner's attorney, David Hunter, of Lane, Powell & Barker, argued to this court in Palmer I that the estate's inability to investigate the plane and crash site during the NTSB investigation should not toll the statute under the discovery rule. He detailed the information available in FAA and other public records.
In February 1990 Judge Hodges found, in Swanson v. Borg-Warner, that Borg-Warner had fraudulently concealed from the FAA why its carburetors tend to cause crashes. In April 1990 the estate terminated Smith's contingent-fee contract. Three weeks later Smith filed the estate's Rule 60(b) motion, based on the Swanson findings, which had alerted Smith to Borg-Warner's concealment. In July 1990 the court denied the motion, and the e
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