Beebe v. Eisemann, No. 733-10-09 Rdcv (Teachout, J., Sept. 21, 2011)

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                                                STATE OF VERMONT

SUPERIOR COURT                                                                                    CIVIL DIVISION
Rutland Unit                                                                                 Docket No. 733-10-09 Rdcv

GENE BEEBE
     Plaintiff

v.

ALLAN D. EISEMANN, MD, et al.
    Defendants
                                           DECISION
                                  DEFENDANTS’ MOTION TO DISMISS

       This matter is before the court on the Motion to Dismiss filed on June 6, 2011, by
Defendants Allan D. Eisemann, MD and Allan Eisemann, MD, PLC (collectively “Dr.
Eisemann). Dr. Eisemann argues that the statue of limitations governing Plaintiff’s
medical malpractice claims has expired and, therefore, Plaintiff has failed to state a upon
which relief can be granted pursuant to V.R.C.P. 12(b)(6). Dr. Eisemann is represented
by Karen S. Heald, Esq. Plaintiff Gene Beebe is represented by A. Jeffry Taylor, Esq.

                                                          Background

        On October 7, 2009, Plaintiff Gene Beebe filed a Complaint alleging medical
malpractice on the part of Dr. Eisemann. The basis for the Complaint was a tooth
extraction performed on October 9, 2006. Plaintiff acknowledges that the Complaint was
filed two days before the statute of limitations expired.

        On October 15, 2009, Plaintiff sent a letter to defense counsel indicating that he
had filed the Complaint with the court on October 7. Plaintiff informed Dr. Eisemann that
he had decided not to commence service of process immediately in hopes of settling the
case without any unwanted publicity. Plaintiff’s letter was accompanied by a request for
waiver of service.

       Defense counsel for Dr. Eisemann signed the waivers of service on October 20.
As evidenced by an e-mail from Plaintiff’s counsel dated December 14, Plaintiff’s
counsel asked defense counsel to hold onto to the waivers while they evaluated the case.
Defense counsel returned the waivers on January 13, 2010.

         On April 15, 2011, the court dismissed the case on its own motion based on
Plaintiff’s failure to prosecute his claim. At this point, Plaintiff had not filed proof of
service with the court. On April 18, Plaintiff filed the signed waivers of service. On April
25, the court granted Plaintiff’s V.R.C.P. 60(b) motion to reopen on the basis that failure
to file proof of service with the court is not grounds for dismissal if service was, in fact,
properly effectuated.
                                          Analysis

        Dr. Eisemann moves to dismiss because Plaintiff did not effectuate timely service
of process, and the statute of limitations has now expired. The statute of limitations for
medical malpractice claims runs three years from the date of the incident. 12 V.S.A. §
521. The date of Mr. Beebe’s tooth extraction was October 9, 2006. Therefore, the statute
of limitations expired on October 9, 2009.

       Plaintiff filed his Complaint with the court, before the statute of limitations
expired, on October 7, 2009. When an action is commenced by filing the Complaint with
the court, service of process must be completed within 60 days of the filing date.
V.R.C.P. 3. Plaintiff had until December 7, 2009, to properly serve Dr. Eisemann.

       Plaintiff attempted to effectuate service by obtaining waivers of service from Dr.
Eisemann pursuant to V.R.C.P. 4(l). In order to comply with Rule 4(l), Plaintiff must file
the waiver of service with the court within sixty days of filing the complaint. See
Fercenia v. Guiduli, 2003 VT 50, ¶ 8, 175 Vt. 541 (mem.). Here, Plaintiff did not file the
waivers with the court until April 18, 2011, well after the sixty day period.

        Because of Plaintiff’s failure to timely file the waivers, the statute of limitations
period has expired. The statute of limitations is not tolled until the waivers of service are
filed with the court. Id. at ¶ 9-10. Therefore, Plaintiff’s claim must be dismissed unless
Dr. Eisemann is somehow prevented from asserting the statute of limitations bar. See id.
at ¶ 12 (noting that equitable tolling or equitable estoppel may excuse Plaintiff’s failure to
file timely service of process).

         Plaintiff argues that equitable estoppel should apply here. Equitable estoppel
generally requires either a promise not to assert a statute of limitations defense or some
sort of fraudulent concealment or misrepresentation. Beecher v. Stratton Corp., 170 Vt.
137, 139 (1999). The doctrine has four elements: (1) the party to be estopped knows the
facts, (2) the party to be estopped must intend that his conduct shall be acted on or the
conduct must be such that the other party reasonably believe it was intended to be acted
on, (3) the party asserting estoppel must be ignorant of the true facts, and (4) the party
asserting estoppel must detrimentally rely on the conduct of the party to be estopped. Id.
at 140. Generally, equitable estoppel “will not be invoked in favor of one whose own
omissions or inadvertences contributed to the problem.” Id.

         Plaintiff’s difficulty in asserting equitable estoppel is that his own actions
significantly contributed to his failure to timely file service of process. Plaintiff chose to
file his Complaint before effectuating service of process. He then chose to rely on the
waiver provision of Rule 4(l). In doing so, he failed to ensure that the waivers were filed
within the required sixty day period. Plaintiff’s counsel knew or should have known of
the necessity of filing timely service of process. See id. (holding that “[i]t was the
responsibility of plaintiff's attorney …to be aware of the applicable limitations period and
to ensure that his client's claims did not expire”).



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         It is clear that no agreement was reached regarding the tolling of the statute of
limitations, and Dr. Eisemann did not make any promises in this regard. Moreover, as the
e-mail from Plaintiff’s counsel dated December 14, 2009 shows, Plaintiff’s counsel was
the one who asked defense counsel to hold onto the waivers, and in the e-mail, he asks
defense counsel to continue to hold the waivers. By the date of the December 14 e-mail,
Plaintiff’s time to properly file the waivers had already expired. Plaintiff was not misled
into failing to file the waivers. Equitable estoppel is, therefore, inappropriate on these
facts, and Plaintiff’s claim against Dr. Eisemann is barred by the statute of limitations.




                                         ORDER

       Defendant’s Motion to Dismiss is granted.

       Dated at Rutland, Vermont this 20th day of September, 2011.



                                                             ________________________
                                                               Hon. Mary Miles Teachout
                                                                         Superior Judge




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