Owens v. F.E.M. Electric Association3/9/2005
ange in condition under SDCL 62-7-33.
[ .] Owens' request for a hearing on Federated's denial of his claim for back injuries resulting from the October 1998 accident was time barred by the two year statute of limitations in SDCL 62-7-35. SDCL 62-7-33 was inapplicable because Owens did not experience a change in condition after June 25, 2001.
[ .] Affirmed.
[ .] GIENAPP, Circuit Judge for SABERS, Justice, disqualified.
[ .] KONENKAMP, Justice, concurs and ZINTER, Justice, concurs with writing.
[ .] GILBERTSON, Chief Justice, and MEIERHENRY, Justice, dissent.
ZINTER, Justice (concurring).
[ .] I concur because Owens was not confused by the June 25, 1999 notice indicating that the insurance company had "paid all benefits to which [Owens was] entitled ...from the October 16, 1998, injury." He was obviously not confused because in his "first report of injury" dated May 26, 1999 (relating to the May 5, 1999 incident), he specifically indicated that his doctors had told him that the May 5, 1999 incident was possibly related to his October 1998 motor vehicle accident. Moreover, by May 26, 1999, Owens had also consulted with an orthopedist and a rheumatologist. Owens now concedes that " oth of those doctors gave the impression it was possible that the condition in his back ...might be related to the October, 1998 truck accident." Owens had to have understood this to be the case because, according to Owens' brief, Dr. Rak, a neurosurgeon, saw Owens on June 7, 1999, diagnosed a herniated disc, and stated that his "'problem started in October, 1998' with the truck accident." Finally, were there any doubt about this issue, Owens' deposition clearly confirmed that prior to the June 25, 1999 letter, he understood that his back and leg pain were related to the October 1998 truck accident. He testified:
Counsel: Now on May 5th when you crumpled to the floor, you suspected that that was caused by the October 18th, 1998 event, correct?
Owens: Yes.
Counsel: Because you called your employer right away and told them, didn't you?
Owens: Yes.
Counsel: And you told them you thought this was caused by the motor vehicle accident?
Owens: Yes.
[ .] Thus, considering Owens' own admissions, he cannot now claim that the June 25, 1999 letter from the insurer did not reasonably communicate a denial of coverage for the back injuries. Because Owens also failed to demonstrate any change of condition after the May 5, 1999 incident, the statute of limitations barred his most recent claim.
[ .] KONENKAMP, Justice, joins this writing.
GILBERTSON, Chief Justice (dissenting).
[ .] I respectfully dissent. I agree with the Court that we conduct a de novo review of a 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. See Trip-Tenn, Inc. v. Schultz, 2003 SD 10, , 656 NW2d 747, 750. I also agree that the evidence must be viewed in a light most favorable to the nonmoving party. Supra . Most importantly in this case, I agree that a motion for " ummary 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[.]" Supra.
[ .] On June 25, 1999, Owens received a letter from FEM purporting to notify him that all further claims for work-related injuries stemming from a truck accident on October 16, 1998, were denied, and that he had only two years in which
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