Court refuses to honor alleged oral agreement to stay statute of limitations and permanently dismisses claim
Diane Hardin filed a Notice of Intent to Sue David W. Prieskorn, D.O., and Tri-County Orthopedics. As the six-month waiting period was about to expire, there was apparently some disccussion between her attorneys and the insurance adjuster, James Olivetti, of a plan to extend the statute of limitations and further investigate the claim pre-suit. The attorney for Hardin alleged that the two men agreed to "toll" the statute, although the Court opinion does not record whether Olivetti affirmed or denied this plan.
In any event, the attorney forwarded to Olivetti a written stipulation to extend the deadline, with a request that Olivetti confirm the details, and apparently Olivetti did not respond. Nine days after the expiration of the statute of limitations, Hardin's attorneys went aheaad with suit and the insurer's attorneys sought summary disposition based on the statute of limitations. Hardin's lawyers argued that the parties had agreed to toll the statute and that in any event, the insurer should be "estopped" from enforcing it under the circumstances.The trial judge dismissed Hardin's claim based on the statute of limitations and Hardin appealed. The appellate judges rejected Hardin's arguments, upholding the permanent dismissal. The judges suggested that Hardin couldn't prove that Olivetti was authorized by the defendants to make such an agreement, and that Hardin's proofs were not adequate to confirm that an agreement had been made.