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Smith v. Thompson (9/20/96), 923 P 2d 101
NOTICE: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501; phone (907) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
BARBARA L. SMITH, )
) Supreme Court No. S-5633
) Superior Court No.
v. ) 3AN-92-3450 CI
JOHN A. THOMPSON, ) O P I N I O N
Appellee. ) [No. 4406 - September 20, 1996]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Mark C. Rowland, Judge.
Appearances: Thomas S. Gingras, Anchorage,
for Appellant. David S. Carter, Hughes
Thorsness Gantz Powell & Brundin, Anchorage,
and Earl M. Sutherland, Reed McClure, Seattle,
Before: Rabinowitz, Matthews, Compton, and
Eastaugh, Justices. [Moore, Chief Justice,
I. FACTS AND PROCEEDINGS (EN1)
This appeal arises from a November 30, 1987 automobile
accident involving Barbara Smith and John Thompson. Smith was
heading north on Laurel Street in Anchorage when Thompson, unable
to stop his truck while exiting an adjacent parking lot, skidded
across the slick pavement and collided with Smith. At the scene
Smith stated that she had a severe headache and that her neck hurt.
She went to a medical center where she was diagnosed as having a
On December 3, 1987, three days after the accident, Smith
initiated a meeting with Thompson's insurance company, State Farm
Mutual Automobile Insurance Company (State Farm). According to
Smith, "[t]he State Farm lady said they could not pay us anything
until I signed a release." Smith further affied that "[t]he State
Farm lady said that after I signed the release I would no longer be
eligible for any more medical coverage. She did not disclose that
the release might not be any good if my condition changed
Smith believed at the time that her only injury was a
muscle strain and "that it would go away soon." The adjuster
offered to settle Smith's claim for about $725. Smith accepted the
settlement offer, though she later affied that she "only intended
to release claims I had for the neck soreness. I had no intention
of releasing the kind of medical problems I developed later."
Also, Smith states that she "did not realize . . . that a release
of the kind I signed may be invalid as to later medical
After Smith signed the release, her pain disappeared and
throughout 1988 she had no medical problems. In early 1989 she
broke her wrist, which resulted in surgery and the placement of a
heavy cast on her left arm. Shortly thereafter, Smith began
experiencing shoulder pain and severe headaches, which her doctor
attributed to her change in posture because of the heavy cast.
Smith's wrist healed slowly, and she required two additional
surgeries and needed to wear her cast for almost two years.
Smith became pregnant in June 1990. Though Smith's cast
was removed in October 1990, she continued to experience shoulder
pain. Her doctors attributed her continuing pain to her pregnancy.
After she gave birth, Smith's neck and shoulder pain persisted.
She received treatment from a chiropractor who advised her that her
pain was caused by the 1987 auto accident. By January 1992,
Smith's pain had become unbearable, and a magnetic resonance
imaging (MRI) scan indicated that her neck was vertically
disarranged. After physical therapy proved unsuccessful, Smith
underwent surgery in February 1992 to fuse two vertebrae in her
neck. The bone graft between the two vertebrae later collapsed,
which necessitated a second surgery. The bone graft from the
second fusion also collapsed, and the doctors drilled a halo brace
into Smith's head to place her neck in extension and to stabilize
In April 1992, approximately four and one half years
after her accident, Smith filed suit against Thompson. In August
1992 she affied:
Until I consulted with an attorney recently, I
did not understand that the release which I
signed was valid only as to things I intended
to release. From what State Farm's adjuster
told me and the way she acted, my
understanding was that the release I signed
would prevent me from bringing a law suit and
that I could not make a claim. That's why I
did not file suit sooner. In not filing a law
suit earlier, I relied upon what the State
Farm adjuster told me about the release and
what it meant. As soon as I learned she might
be wrong, I filed this lawsuit with my
Thompson (EN2) raised several affirmative defenses, and the
superior court dismissed Smith's claim, without specifying the
grounds of dismissal. Smith now appeals.
II. STANDARD OF REVIEW
As both parties note, the superior court ruled on
Thompson's motion to dismiss as if it had been presented as a
motion for summary judgment. Consequently, this court reviews the
superior court's order as if it were a summary judgment order. See
McAdoo v. Diaz, 884 P.2d 1385, 1387 n.2 (Alaska 1994) ("If the
court considered materials outside the pleadings, the motion was
automatically converted to a motion for summary judgment."). When
reviewing a grant of summary judgment, this court determines
whether any genuine issue of material fact exists and whether the
moving party is entitled to judgment as a matter of law. Wright v.
State, 824 P.2d 718, 720 (Alaska 1992). All reasonable inferences
of fact from proffered materials are drawn against the moving party
-- Thompson -- and in favor of the non-moving party -- Smith. Id.
In asserting that the statute of limitations (EN3) should
not bar her claim, Smith advances two arguments: (1) Thompson
should be estopped from asserting the statute of limitations as a
defense since Smith detrimentally relied on her mistaken belief,
fostered by State Farm, that the release she signed precluded her
from suing Thompson; and (2) the statute of limitations should have
been tolled until Smith discovered the nature and extent of her
A. Smith's Estoppel Arguments Fail.
Smith asserts three related arguments based on principles
of estoppel: equitable estoppel, quasi-estoppel, and equitable
tolling. All fail. Equitable estoppel does not apply because
Smith was not prejudiced by the release, regardless of its validity
or the representations made by State Farm concerning its legal
effect. Quasi-estoppel does not apply because Thompson has
asserted no inconsistent positions. Finally, equitable tolling
does not serve to toll the statute of limitations because Smith was
not engaged in pursuing her rights in a judicial or quasi-judicial
In Groseth v. Ness, 421 P.2d 624 (Alaska 1966), this
court adopted "the doctrine of equitable estoppel as a prohibition
against an unjust reliance upon a statute of limitations." Id. at
630. We stated:
To establish an equitable estoppel it is
generally necessary that the party seeking to
assert it show that the other party made some
misrepresentation, or false statement, or
acted fraudulently and that he reasonably
relied on such acts or representations of the
other party, and due to such reliance did not
institute suit timely.
Id. at 632 n.23 (emphasis added). Similarly, in Gudenau & Co.,
Inc. v. Sweeney Ins., Inc., 736 P.2d 763 (Alaska 1987), we stated:
A plaintiff who is aware of the elements of
his cause of action but fails to file suit
within the limitations period may still be
protected if he has been induced, by
defendant's words or conduct, to postpone
filing suit until the limitations period has
run. One who induces delay will be equitably
estopped from asserting the delay as a bar to
plaintiff's action, upon the equitable
principle that no party will be permitted to
profit from his or her wrongdoing.
Id. at 768-769 (emphasis added).
Though the parties expend considerable energy debating
whether there was any wrongdoing on the part of the State Farm
representative, this issue is moot and we need not consider it.
(EN4) As both Groseth and Gudenau indicate, a wrongdoing will
preclude the assertion of the statute of limitations as a defense
only if that wrongdoing actually caused Smith's failure to
Smith's accident occurred on November 30, 1987. She had
no pain throughout 1988. She only began to experience pain again
in early 1989. She attributed the onset of this pain to a heavy
cast she wore because of her broken wrist. Smith acknowledges that
it was not until the summer of 1991, at the earliest, that she
first learned from her chiropractor that she might have a spinal
injury resulting from the accident. Until then she and her doctors
attributed all pain after the initial month of neck pain
immediately following the injury, to factors other than the
accident. Even when viewed in the light most favorable to Smith,
the facts clearly indicate that she made no association between her
pain and the accident until the summer of 1991 -- three and a half
years after the accident, and one and a half years after the
statute of limitations had expired.
Consequently, even assuming the adjuster's conduct and
statements constituted a wrongdoing, it is clear that the release
had nothing to do with Smith's delay in filing suit. Since she was
unaware that the pain she was experiencing may have been
attributable to the accident, she would not have brought suit
against Thompson even absent the release. In short, regardless of
whether the adjuster committed any wrongdoing or misrepresentation,
Smith suffered no prejudice.
Smith's quasi-estoppel argument can also be dismissed.
Quasi-estoppel applies where facts and circumstances make the
assertion of an inconsistent position unconscionable. Wright v.
State, 824 P.2d 718, 721 (Alaska 1992). This argument would
succeed only if Thompson was asserting a position inconsistent with
one he had previously taken. There is no indication that any of
Thompson's positions have been inconsistent.
Finally, Smith's equitable tolling argument fails because
the requirements of the doctrine are not satisfied.
The equitable tolling doctrine applies to
relieve a plaintiff from the bar of the
statute of limitations when he has more than
one legal remedy available to him. The
statute is equitably tolled if (1) pursuit of
the initial remedy gives defendant notice of
plaintiff's claim, (2) defendant's ability to
gather evidence is not prejudiced by the
delay, and (3) plaintiff acted reasonably and
in good faith. The statute is tolled only
when the initial remedy is pursued in a
judicial or quasi-judicial forum.
Dayhoff v. Temsco Helicopters, 772 P.2d 1085, 1087 (Alaska 1989)
(citations omitted). Smith was not pursuing an alternative legal
remedy in a judicial or quasi-judicial forum when she was
negotiating the settlement with State Farm.
Furthermore, even if equitable tolling applied in this
case, it would only serve to toll the statute during the time the
alternative remedy was being pursued. The tolling of the statute
for the few days it took to negotiate and execute the release would
have no effect on this case, since the full limitations period
would have expired before this suit was filed even if the period
had been extended by those days. See id. at 1088 n.6 (Plaintiff is
"entitled to the benefit of the full statutory period after the
circumstances which justify equitable tolling abate.").
B. The Discovery Rule is Inapplicable.
Smith also claims that the two-year statute of
limitations provided for in AS 09.10.070 should be tolled under the
discovery rule. The release is not relevant to this issue. The
relevant inquiry is whether Smith, after being in an accident and
receiving medical attention for injuries sustained in that
accident, is required to bring all claims, whether discovered or
latent, within two years of the date of that accident.
Smith argues that the limitations period was triggered on
the date Smith discovered, or reasonably should have discovered,
that a latent disease or injury was caused by Thompson's conduct.
The statute of limitations ordinarily begins to run on the date on
which the plaintiff incurs the injury. However, this rule has been
modified so that the statute of limitations does not begin to run
until the claimant discovers, or reasonably should have discovered,
the existence of all elements essential to the cause of action.
"Alaska, along with most other jurisdictions, has adopted the
discovery rule . . . ." Pedersen v. Zielski, 822 P.2d 903, 906
(Alaska 1991). Under the discovery rule, "the relevant inquiry is
the date when [the claimant] reasonably should have known of the
facts supporting her cause of action." Russell v. Municipality of
Anchorage, 743 P.2d 372, 375 (Alaska 1987). "[T]he statute of
limitations does not begin to run until the claimant discovers, or
reasonably should have discovered, the existence of all elements
essential to the cause of action." Mine Safety Appliances Co. v.
Stiles, 756 P.2d 288, 291 (Alaska 1988). In this instance, the
element which Smith argues was undiscovered for several years is
We have cautioned that "[o]rdinarily summary judgment is
inappropriate on the issue of what date the statute should start
running." Mine Safety, 756 P.2d at 292. We have also stated that
"[a]pplication of the discovery rule . . . is dependent on facts
that are often unclear. When a plaintiff first learned of an
injury or its cause is a fact which may sometimes be in dispute.
When a plaintiff first should have learned of an injury or its
cause is frequently debatable." Pedersen, 822 P.2d at 907. In
this case, however, it is undisputed that Smith first knew that she
had suffered injury to her neck on November 30, 1987, the date of
the accident. Thus the question facing this court is purely a
matter of law: Does knowledge of some compensable injury resulting
from a sudden traumatic event trigger the statute of limitations
even if the full extent of damages is as yet unknown?
We stated in the context of a legal malpractice suit that
"the guiding principle is that the statute of limitations commences
to run when one is actually damaged as a result of the alleged
malpractice, and that the commencement of the statute will not be
put off until one learns the full extent of his damages." Wettanen
v. Cowper, 749 P.2d 362, 365 (Alaska 1988). This rule was extended
in Beesley v. Van Doren, 873 P.2d 1280 (Alaska 1994), where we
rejected the "exhaustion of appeals rule,"and stated that the
"statute of limitations begins running when a client discovers or
reasonably should have discovered all the elements of the cause of
action, and suffers actual damages." Id. at 1282-83.
It is not only in attorney malpractice actions that the
statute of limitations begins to run as soon as all the elements of
the cause of action are discovered, even if the extent of damages
is not known. The Illinois Supreme Court has said:
In this case . . . the plaintiff knew that she
suffered injuries at the time of the accident.
She does not contend that her immediate
injuries were not compensable. . . . Thus,
the present case involves, not a plaintiff who
failed to discover any injury, but a plaintiff
who failed to discover the full extent of her
injuries before the statute of limitations
expired. There is no requirement that a
plaintiff must discover the full extent of her
injuries before the statute of limitations
begins to run. Because the plaintiff knew or
should have known at the time of the accident
both that she was injured and that the injury
may have been wrongfully caused, the
limitations period commenced at that time.
Golla v. General Motors Corp., 657 N.E.2d 894, 901 (Ill. 1995). In
Stephens v. Dixon, 536 N.W.2d 755 (Mich. 1995), the plaintiff was
injured in a car accident. At first, she experienced only minor
contusions and abrasions, and muscle pain and stiffness throughout
her body including her neck. These conditions resolved themselves
within weeks. More than twenty months later, she began to feel
neck pain. The condition was diagnosed as spondylolysis of the
neck vertebrae, a latent condition associated with her injuries.
Id. at 756. After two surgeries, she filed suit. The Michigan
supreme court held that the limitations period began immediately,
stating that "the discovery rule is not available in a case of
ordinary negligence where a plaintiff merely misjudges the severity
of a known injury." Id. at 758. (EN5)
We therefore hold that the statute of limitations on
Smith's cause of action began to run on the day of the accident
when she first had notice that she had been injured. Her
opportunity to file suit expired two years from that date, and
hence her current action is time-barred.
Accordingly, the judgment of the superior court is
1. For purposes of this appeal, the superior court's dismissal of
Smith's complaint is treated as a grant of summary judgment and
consequently the factual allegations contained in Smith's verified
complaint and affidavit are taken as true. Wettanen v. Cowper, 749
P.2d 362, 363 (Alaska 1988).
2. Thompson, whom State Farm has been unable to locate, is
represented in absentia by counsel hired by State Farm.
3. A personal injury claim is barred unless it is commenced
within two years after the cause of action accrues. AS 09.10.070.
4. This court need not decide an issue unnecessary to the
resolution of the case. See, e.g., Valleys Borough Support Comm.
v. Local Boundary Comm'n, 863 P.2d 232, 235 n.4 (Alaska 1993)
(supreme court need not decide authority issue where party not
entitled to relief, even if agency exceeded authority).
5. See also, e.g., Wyatt v. A-Best Co., Inc., 910 S.W.2d 851
(Tenn. 1995). Cf. Restatement (Second) of Judgments sec. 18 cmt.
b, illus. 1 (1982).