Muhammed v. Welch
v.
Ellen Welch, Defendant and Appellee
Judge Cynthia Rothe-Seeger
| Appellant: | Lee Hagen Law Office, Ltd. | |
| Appellee: | Nilles, Plambeck, Selbo & Harrie, Ltd. |
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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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