eNotes – Liability – December 2022 – Washington, DC

SIGNIFICANT CASE SUMMARIES

Washington, DC Case Summary

Gardner v. Erie Ins. Co.
United States District Court for the District of Columbia
2022 U.S. Dist. LEXIS 201746

Decided: November 4, 2022

Granting a Motion to dismiss is proper when a party has not waived, and is not estopped from, asserting its limitations provision as an affirmative defense.

Background

On June 19, 2019, the Plaintiffs home suffered an accidental water and sewer flood causing property damage in their basement. Plaintiffs were insured by an insurance policy issued by the Defendant. After the flood, Plaintiffs filed a claim with Defendant seeking payment for the damaged personal property and repair to the home. Defendant made some payments, but less than the Plaintiffs desired. Plaintiffs filed suit seeking to compel appraisal, the appointment of an umpire, declaratory judgement, and additional relief including compensatory damages to be determined by an appraiser. Defendant moved to dismiss.

Defendant cited a policy provision setting a one year statute of limitations from the date of loss. Plaintiffs argued that Defendant could not assert this defense because they had waived the defense or should be estopped from asserting it as a defense because delays occurred due to the Defendant’s insistence on using their approved contractors and their refusal to pay a fraction of the actual loss.

Holding

The Court granted Defendant’s Motion to dismiss. The Court explained that waiver of a contractual limitations period does not occur unless the party has conceded liability and some discussion of a settlement offer has occurred. To be estopped from asserting a limitations provision as an affirmative defense, a party must do anything that would tend to lull the plaintiff into inaction, thereby permitting the limitations time to run against them. The Court found that the Plaintiffs could not present any evidence to support that Defendant had waived its right to the affirmative defense or, in the alternative, that Defendant should be estopped from asserting the defense.

Questions about this case can be directed to Marcelo Perez at (202) 945-9503 or mperez@tthlaw.com.