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Owens v. F.E.M. Electric Association3/9/2005
upon trial is not sufficient basis to grant the motion on issues which are not shown to be sham, frivolous or so unsubstantial that it is obvious it would be futile to try them; (5) Summary judgment is an extreme remedy and should be awarded only when the truth is clear and reasonable doubts touching the existence of a genuine issue as to material fact should be resolved against the movant; and (6) Where, however, no genuine issue of fact exists it is looked upon with favor and is particularly adaptable to expose sham claims and defenses.
Jerauld County v. Huron Regional Medical Center, Inc., 2004 SD 89, 9, 685 NW2d 140, 142 (quoting Dept. of Revenue v. Thiewes, 448 NW2d 1, 2 (SD 1989) (citing Wilson v. Great Northern Ry. Co., 83 SD 207, 212, 157 NW2d 19, 21 (1968)).
[ .] This Court conducts a de novo review of summary judgment on statute of limitations issues where there are no disputes regarding genuine issues of material fact and only the application of the law is in question. Sherman v. Sherman, 2000 SD 117, 8, 616 NW2d 393, 394.
ANALYSIS AND DECISION
ISSUE ONE
[ .] Whether Owens received sufficient notice of the denial of coverage to invoke the two year statute of limitations in SDCL 62-7-35 and time bar his claim.
[ .] SDCL 62-7-35 provides a two year statute of limitations for workers compensation claims if "the self-insurer or insurer notifies the claimant and the department, in writing, that it intends to deny coverage in whole or in part[.]" On June 25, 1999, Federated notified Owens by letter of its intention to deny any claim for temporary total disability, temporary partial disability, permanent total disability, permanent partial disability, or rehabilitation. The letter went on to state that Federated concluded that it had paid all benefits to which Owens was entitled as a result of the October 1998 accident. This letter gave notice of denial as required by SDCL 62-7-35, and as a consequence, Owens' claim was time barred due to his failure to request a hearing within the two year statutory period.
[ .] Owens claims that the three year period of limitations in SDCL 62-7-35.1 applied to his claim. We disagree. This Court has stated that the two limitations periods apply to distinct circumstances:
SDCL 62-7-35 provides the limitations period when an employer gives formal notice that it denies or disputes an employee's claim, in whole or in part. Employers often accept responsibility for one part of a claim and deny responsibility for another. This statute places a two-year limit on claims that are formally denied. Conversely, SDCL 62-7-35.1 furnishes the limitations period when the employer provides the employee with benefits for a period of time, gives no denial notice, and then the matter lies inactive. In the latter circumstance, the employer has at least implicitly validated the employee's claim, and the longer three-year period is warranted because the triggering event under SDCL 62-7-35.1 is simply a cessation of benefits without notice of a dispute.
Faircloth v. Raven Industries, Inc., 2000 SD 158, 8, 620 NW2d 198, 201-02.
[ .] The claims in this case are that there exists two injuries allegedly caused by one accident that resulted in one claim for injuries arising from the October 1998 accident. Federated approved the portion of the claim relating to the shoulder injury and paid benefits until the injury was resolved and Owens returned to his former duties with FEM. However, finding that the back injury was not work related, Federated denied that portion of the claim. Federated communicated this denial of any further compensation to Owens in its letter of Ju
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