This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Nancy Addington,



Illinois Farmers Insurance Company,


Filed April 27, 1999


Randall, Judge

Hennepin County District Court

File No. CT 98-002232

Brad C. Eggen, Law Offices of Brad C. Eggen, 1100 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402-1400 (for appellant)

Burton D. Anderson, Votel, Anderson, & McEachron, 444 Cedar Street, Suite 1250, St. Paul, MN 55101 (for respondent)

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Huspeni, Judge.[*]



In challenging the district court's summary judgment award against her, appellant argues that her insurance policy with respondent established an accrual date for the running of the statute of limitations on an underinsured motorist action. In the alternative, she asserts that the policy is ambiguous and should be construed in her favor and argues that respondent should be estopped from asserting a statute-of-limitation defense. Appellant also asserts that the district court erred by refusing to grant her motion to continue the summary judgment motion and erred in denying her motion to vacate the judgment. We affirm on all issues.


On October 2, 1991, appellant Nancy Addington was injured in a motor vehicle accident caused by another driver. The other driver was insured by Colonial Penn Insurance Company. Prior to her accident, Addington had purchased underinsured motorist (UIM) coverage from respondent Illinois Farmers Insurance Company (Farmers).

After Addington reached a settlement with Colonial Penn, she commenced this action against Farmers for UIM benefits on December 23, 1997. Farmers moved for summary judgment, asserting that Addington's suit was barred by the six-year statute of limitations. Addington moved to continue the summary judgment motion to permit more discovery. The district court denied Addington's motion to continue and awarded summary judgment to Farmers. Addington then moved to vacate the judgment, and the district court denied her motion.[1]


An appellate court reviews summary judgment to determine whether there are any genuine issues of material fact and whether the district court erred in applying the law. Weeks v. American Family Mut. Ins. Co., 580 N.W.2d 24, 26 (Minn. 1998). The reviewing court "must view the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).

I. Statute of Limitations

Statute of limitations construction is a legal question reviewed de novo. Sarafolean v. Kauffman, 547 N.W.2d 417, 419 (Minn. App. 1996), review denied (Minn. July 10, 1996). The parties do not dispute that this action is governed by the six-year statute of limitations for contracts pursuant to Minn. Stat. § 541.05, subd. 1(1) (1998). The parties do dispute the date that the statute of limitations period began to run, i.e., the accrual date of the cause of action.

In an action to recover UIM benefits, "the statute of limitations begins to run from the date of the auto accident causing the injury." O'Neill v. Illinois Farmers Ins. Co., 381 N.W.2d 439, 441 (Minn. 1986).[2] This court recognized an exception to the rule in Sargent v. State Farm Mut. Auto. Ins. Co., 486 N.W.2d 14, 17 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992), and determined that the policy in that case contained a contractual accrual date. The policy in Sargent stated:

There is no coverage until the limits of liability of all bodily injury liability bonds and policies that apply have been used up by payments of judgments or settlements.

Id. at 16. That policy also stated that the insurer would only pay bodily injury damages where the insured had not received compensation for those damages. Id. This court has since limited Sargent's application and held that "[a]bsent a 'no coverage until clause' like that in Sargent, there is no 'contractual accrual date' for this court to adopt." Nelson v. State Farm Ins. Co., 567 N.W.2d 770, 772 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997); see also Cattnach v. State Farm Ins. Co., 577 N.W.2d 251, 253 (Minn. App. 1998) (stating Sargent's application limited to policy language similar to policy language in Sargent), review denied (Minn. June 17, 1998).

Addington asserts that the language contained in her policy with Farmers is sufficiently similar to the language in Sargent and that the statute of limitations was tolled until Farmers consented to her settlement with Colonial Penn. Addington points out that her Farmers policy states, "We may not be sued unless there is full compliance with all the terms of this policy." The policy's UIM endorsement states:

We will pay an insured person for unpaid damages resulting from a motor vehicle accident where the amount the insured person is legally entitled to recover against the owner of the underinsured motor vehicle exceeds such owner's bodily injury policy limit, but not more than:

a. the amount of damages sustained but not recovered from the insurance policy of the driver or owner of any underinsured at fault vehicle * * * or
b. the limits shown for Underinsured Motorist Coverage - whichever is less.

* * * *

This coverage does not apply to bodily injury sustained by a person: * * * b. If that person or the legal representative of that person makes a settlement without our written consent.

We conclude that pursuant to Nelson and Cattnach, Sargent's application is limited to cases where policy language is that used in Sargent. Here, the policy does not include the "no-coverage-until" language used in Sargent. Although the policy does state, "[w]e may not be sued unless," in Nelson this court observed:

"The time within which an action must be commenced begins to run when the cause of action accrues. It does not necessarily follow that the right to sue on the cause of action arises immediately when the cause of action accrues. * * * [T]he test is whether the performance of the condition is a part of the cause of action, or merely a part of or step in the remedy."

Nelson, 567 N.W.2d at 772 (quoting Swing v. Barnard-Cope Mfg. Co., 115 Minn. 47, 50, 131 N.W. 855, 856 (1911)) (emphasis added). The policy provisions here were merely requirements that Addington needed to fulfill in order to obtain coverage and not part of the cause of action. Thus, the statute of limitations began to run when the accident occurred, not when Addington settled with the underlying tortfeasor.

Addington insists that if she had filed suit for UIM benefits prior to October 2, 1997, Farmers would have asserted that the suit was premature because she had not yet settled her liability claim against Colonial Penn and Farmers had not yet consented to her settlement with Colonial Penn. Although Farmers conceivably might have raised this defense, Addington would have preserved her claim for UIM benefits by filing suit prior to the date the statute of limitations ran. As this court stated in Cattnach,

[T]he [insureds] could have commenced their UIM action within the six-year period and then requested that trial be stayed until the tort action was either settled or litigated to completion, thus making the UIM action ripe for trial.

Cattnach, 577 N.W.2d at 254.

Addington asserts in the alternative that the policy language is ambiguous. Thus, she asserts, the policy should be interpreted in her favor and construed to mean that the statute of limitations did not begin to run until settlement was reached with the tortfeasor and Farmers consented to that settlement. See Neuman v. State Farm Mut. Auto. Ins. Co., 492 N.W.2d 530, 533 (Minn. 1992) (stating policy ambiguities must be construed in favor of insured). Addington raised this issue below, but the district court did not address it. Therefore, this court need not address the issue. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (reviewing court generally considers only issues presented to and considered by the district court).

If we were to address this issue, Addington's argument is still without merit because the policy is unambiguous. The policy does not address the accrual date of a cause of action. As described above, where there is no contractual accrual date, the statute of limitations runs from the date of the accident. O'Neill, 381 N.W.2d at 441. The fact that the policy states that Farmers cannot be sued unless Addington complies with the policy terms does not alter the accrual date of the action. See Nelson, 567 N.W.2d at 772 (recognizing right to sue does not necessarily arise immediately when cause of action accrues). Addington's failure to calculate the accrual date of her cause of action does not equate to a conclusion that the policy is ambiguous.


Addington also argues that even if the statute of limitations barred her action, Farmers should be estopped from asserting that defense. Addington asserts that she relied on Farmers' assurances that she could bring her underinsured claim after settling with the underlying tortfeasor.

Although estoppel is ordinarily a fact question for the jury, where "only one inference can be drawn from the facts, the question is one of law." L & H Transport, Inc. v. Drew Agency, Inc., 403 N.W.2d 223, 227 (Minn. 1987). Equitable estoppel requires "a representation or concealment of material facts" and is similar to fraud. Del Hayes & Sons, Inc. v. Mitchell, 304 Minn. 275, 286, 230 N.W.2d 588, 595 (1975). To support an equitable estoppel claim, the plaintiff must demonstrate that the defendant's language or actions induced the plaintiff's reliance to the plaintiff's detriment. Ridgewood Dev. Co. v. State, 294 N.W.2d 288, 292 (Minn. 1980).

Addington relies on this court's decision in U.S. Leasing Corp. v. Biba Info. Processing Servs., Inc., 436 N.W.2d 823 (Minn. App. 1989), review denied (Minn. May 24, 1989). There, this court emphasized, "'A promise of future action * * * is enough to stop the running of the statute of limitations, without an express mention of the statute.'" Id. at 826 (quoting Sohns v. Pederson, 354 N.W.2d 852, 855 (Minn. App. 1984)). In that case, plaintiff purchased office equipment from defendants. Id. at 824. When plaintiff began experiencing problems with one piece of equipment, defendant promised, prior to expiration of the warranty statute of limitations, to "'do whatever it took' which 'could include replacement of the unit.'" Id. at 826. The court concluded a material issue of fact existed on the issue of whether equitable estoppel applied because there was evidence that defendants promised that they would fulfill their warranties. Id.

U.S. Leasing is distinguishable from this case. Here, Addington does not allege any actions or statements by Farmers that amount to specific promises by Farmers to forgo a statute-of-limitations defense. As the district court determined, all correspondence that might have tolled the statute of limitations occurred after October 2, 1997.

Addington's estoppel claim rests on the following facts. In a letter dated September 2, 1997, Addington's attorney, Brad Eggen, informed a Farmers representative, James McGann, that Addington was pursuing a liability claim against Colonial Penn and would be pursuing a UIM claim. There is no claim that Farmers responded to that letter. According to Eggen's affidavit, he also left a voice mail message for McGann stating that the statute of limitations for Addington's liability claim against Colonial Penn would run on October 2, 1997, and that he believed "that the statute of limitations did not run on the underinsured motorist claim." In a letter dated September 29, 1997, Eggen updated McGann on the status of Addington's liability claim against Colonial. The only reference to Farmers is the following statement: "Farmers has an interest in this litigation due to its exposure on the Addingtons' underinsured motorist policy * * * ." Again, there is no evidence, or even an assertion, that Farmers responded.

According to Eggen, he also telephoned Farmers on or about September 29, 1997. In his affidavit, Eggen states that he spoke to either "Mr. McGann or his supervisor or another claims representative" and told "whomever" he spoke with of his "belief that the underinsured motorist claim statute of limitations is based on the insurance contract and would not run on October 2, 1997," and his intention to forego litigation with Farmers until he resolved the liability claim with Colonial Penn. Emphasis added). According to Eggen, the claims representative (whomever that was) said "he had no problem with that approach and would look forward to receiving our demand and package of information." This alleged response from an unnamed person is the only information Addington asserts which would support a conclusion that Farmers misrepresented that the six-year statute of limitations would not run on October 2, 1997. All other correspondence between Addington's counsel and Farmers took place after the statute of limitations had run.

Even viewing the facts in the light most favorable to Addington, and accepting Eggen's affidavit as true, the simple assertion that a few days before the statute of limitations ran, an unspecified claims representative informed Eggen that "he had no problem with Addington's approach," does not rise to the level of a "promise of future action." Farmers' actions after the statute of limitations had run did not affect Addington's ability to seek UIM benefits prior to October 2, 1997.

The insureds in Cattnach also raised an estoppel argument, asserting that an insurance agent informed them that benefits would be available whenever they needed them. Cattnach, 577 N.W.2d at 254. There, in support of their argument the insureds cited Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 918 (Minn. 1990), which held that fraudulent concealment of facts tolls the statute of limitations until the opposing party discovers the concealed facts. Cattnach, 577 N.W.2d at 254. In rejecting the insureds' estoppel argument, this court emphasized Hydra-Mac's statement that "it must be 'the very existence of the facts which establish the cause of action which are fraudulently concealed.'" Id. (quoting Hydra-Mac, 450 N.W.2d at 918-19). This court went on state,

The fact establishing the [insureds'] cause of action for UIM benefits is that [an insured] was injured by an underinsured motorist. The [insureds] have not alleged that the [insurer's] agent concealed this fact.


Similarly, Addington's assertion that she had an agreement with a claims representative does not change the fact that her accident was the cause of action for her UIM benefits claim. Statements by an unnamed person working for Farmers do not change the date of a cause of action. Addington produced no evidence that Farmers concealed or misrepresented a material fact to her detriment. The district court did not err in concluding as a matter of law that Farmers was not estopped from asserting a statute of limitations defense.

III. Continuance

Addington further asserts that the district court erred by denying her motion for a continuance of the summary judgment motion to permit additional discovery. Addington insists that Farmers withheld information about the location of a former claims representative and refused to provide claims representatives for scheduled depositions.

Whether to continue a summary judgment motion to permit further discovery is within a district court's discretion. Cherne Contracting Corp. v. Wausau Ins. Cos., 572 N.W.2d 339, 346 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998). That decision will not be reversed on appeal absent an abuse of that discretion. Id. Although there is a presumption favoring the granting of a requested continuance to permit additional discovery, the court considers whether the party requesting the continuance has been diligent and whether that party believes in good faith that material facts will be discovered. Id. at 345.

Farmers moved for summary judgment in April 1998. Addington did not serve the deposition notices for McGann and Wayne Srsen, another claims representative, until June 3, 1998, the same day she filed her motion for continuance. The depositions were scheduled for June 15, two days before the summary judgment hearing, the date of which had been set in April. The district court could have concluded that Addington was not diligent in her attempt to obtain the depositions that she now states were imperative to defending against Farmers' summary judgment motion.

The district court did not err by denying Addington's motion for a continuance.


[* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Although Addington has appealed from both the summary judgment and from the district court's order denying her motion to vacate the summary judgment, she makes no argument in her brief related to the order denying her motion to vacate. Thus, this issue has been waived. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (stating assignment of error based on mere assertion and lacking supportive argument or authorities is waived unless prejudicial error is obvious).

[2] Although O'Neill involved an implied-at-law contract, the supreme court recently emphasized that even where UIM benefits are specifically contracted for, the statute of limitations begins to run on the date of the accident. See Weeks, 580 N.W.2d at 26 (rejecting argument that O'Neill holding is limited to implied-at-law coverage).