Muhammed v. Welch

20030182 Sefin Muhammed, Plaintiff and Appellant
v.
Ellen Welch, Defendant and Appellee

Appeal from: District Court, East Central Judicial District, Cass County
Judge Cynthia Rothe-Seeger
Nature of Action: Personal Injury
Counsel:
Appellant: Lee Hagen Law Office, Ltd.
Appellee: Nilles, Plambeck, Selbo & Harrie, Ltd.
Term: 11/2003   Argument: 11/26/2003  9:30am
ND cite: 2004 ND 46
NW cite: 675 N.W.2d 402

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1.Was it error for the District Court to rule that the actions of a Defendants' insurance representative(s) were not the actions of the Defendant for purposes of applying the doctrine of equitable estoppel as a means of precluding the application of the statute of limitations when factual issues existed regarding the actions of Defendant's insurer inducing Plaintiff to believe service was effective when it knew Defendant had died years earlier and revealed that fact only after the statute had run?
2.Was it error for the District Court to rule the actions of Defendant's insurance representative(s) were not the actions of the Defendant for purposes of finding fraud whereby Plaintiff would have been allowed an additional year after first learning of Defendant's death within which to file his personal injury action?
3.Where deceased Defendant's spouse accepts restricted delivery of the Summons and Complaint on behalf of his deceased wife thereby holding himself out as deceased's de facto representative, is service of process effective?
4.After learning of Defendant's death, does opening an estate for purposes of service of Plaintiff's personal injury suit relate back to the original summons and complaint served on Defendant?
5.Was it error for the District Court to grant summary judgment without allowing Plaintiff the opportunity to go forward with discovery on issues relevant to Defendant insurance carrier's knowledge and conduct regarding Defendant's death and its actions in concealing that death from Plaintiff?

Appellee's Statement of the Issues:
1. Whether the trial court properly held that the case should be dismissed for improper service of process.
2. Whether the trial court properly found that the statute of limitations had expired on any claim against the Estate of Ellen Welch.
3. Whether an amendment of the Complaint to substitute the estate can relate back to service of process that was a nullity.
4. Whether the trial court properly rejected Muhammed's claim under the doctrine of equitable estoppel.
5. Whether N.D.C.C.  28-01-24 provides for an additional year within which to commence this action.
6. Whether Muhammed properly reserved a request under N.D.R. Civ. P. 56(e) for further discovery prior to entry of summary judgment.

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Docket entries:
106/26/2003 NOTICE OF APPEAL: 06/25/2003
206/26/2003 ORDER FOR TRANSCRIPT: 06/25/2003
307/23/2003 TRANSCRIPT DATED 3-20-03
407/23/2003 DISK - e-mailed (TRA dated 3-20-03)
508/05/2003 RECORD ON APPEAL not rec'd w/Record was No. 22 (Tape)
608/28/2003 APPELLANT BRIEF
708/28/2003 APPELLANT APPENDIX
808/29/2003 DISK of ATB
909/03/2003 Page 3 for ATA
1009/26/2003 APPELLEE BRIEF
1109/29/2003 DISK - AEB
1210/13/2003 REPLY BRIEF OF APPELLANT
1310/14/2003 DISK - RYB
1411/26/2003 APPEARANCES: Duane A. Lillehaug; Jacqueline Sue Anderson
1511/26/2003 ARGUED: Lillehaug; Anderson (Vol. Y; Page 174)
1611/26/2003 ORAL ARGUMENT WEBCAST
1702/25/2004 DISPOSITION: REVERSED AND REMANDED
1802/25/2004 UNANIMOUS OPINION: Kapsner, Carol Ronning
1902/25/2004 Costs on appeal taxed in favor of appellant
2002/26/2004 Judgment Mailed to Parties
2103/18/2004 MANDATE
2204/01/2004 Corrected/Substitute Opinion Page (front cover) - sent to West & trial ct. clerk
2303/24/2004 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
2410/26/2010 EXPUNGED - Nonpermanent record items destroyed

Generated from Supreme Court Docket on 09/01/2014