-
Moore, Justice: This is an appeal from an order granting respondent’s motion for summary judgment. We affirm.
*195 Appellant Robert E. Rink (Rink) filed suit on March 29, 1989, against respondent Richland Memorial Hospital (Hospital) alleging that he had fallen and was injured on March 12, 1988, while hospitalized. The case was called for trial on January 17, 1990, and Rink made a motion for a continuance which was granted. The case was again called for trial on February 1,1990, and Rink made a motion for a voluntary dismissal or nonsuit which was granted over Hospital’s objection in a February 5,1990 order. In both instances, the court taxed costs against Rink. A more detailed order granting Rink’s voluntary dismissal and taxing costs was issued on May 10,1990.On April 6, 1990, Rink refiled his action against Hospital. Hospital moved for a dismissal because Rink had not paid the costs owed to Hospital under the previous orders. Rink paid these costs and Hospital withdrew its motion. Hospital then answered and asserted the statute of limitations as a defense. Hospital moved for summary judgment on March 12, 1991. The trial judge granted Hospital’s motion and Rink now appeals.
ISSUES
(1) What is the proper statute of limitations?
(2) Should Hospital be equitably estopped from raising the statute of limitations defense?
DISCUSSION
^ S.C. Code Ann. § 15-78-110
1 of the South Carolina Tort Claims Act previously provided:Any action brought pursuant to this chapter is forever barred unless an action is commenced within two years after the date the loss was or should have been discovered; provided, that if the claimant first filed a claim pursuant to this chapter then the action for damages based upon the same occurrence is forever barred unless the action is commenced within three years of the date the loss was or should have been discovered.
*196 On November 11, 1988, Rink sent a letter to Hospital stating that Rink was injured while a patient in March and requesting Hospital’s insurance carrier contact him. Rink contends that pursuant to this letter he first filed a claim pursuant to this chapter and, therefore, the three-year statute of limitations applies. Hospital argues that Rink did not file a verified claim pursuant to this chapter and the two-year statute of limitations applies. Hospital bases its argument on the fact that Rink did not follow the procedure for filing claims set forth in S.C. Code Ann. § 15-78-80 (Supp. 1991). We agree.Subsection 15-78-80(a) states that a party may file “[a] verified claim for damages under this chapter, setting forth the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, and the amount of the loss sustained ...” (emphasis added). Rink’s letter to Hospital merely states that Rink was injured while a patient in March. Rink did not set forth any facts, date, names, or the amount of the loss sustained.
Rink relies on Braudie v. Richland County, 219 S.C. 130,64 S.E. (2d) 248 (1951), to support his argument that his letter fulfilled the verified claim requirement. In Braudie, this Court held that the plaintiffs failure to make a literal compliance with the statute requiring a verified complaint should not deny her a trial when she made a substantial compliance with the statute. Braudie, however, is distinguishable from the present case. In Braudie, the plaintiff wrote the county attorney “in full detail with reference to the facts giving rise to plaintiffs cause of actions, giving more information than required ...” Id. at 135, 64 S.E. (2d) 248. Rink’s letter to the Hospital set forth much less information than required.
In Searcy v. Dep’t. of Educ., Transp. Div., 303 S.C. 544, 402 S.E. (2d) 486 (Ct. App. 1991), the Court of Appeals addressed this issue and held that a claim made pursuant to this chapter must be verified. Further, the court held if a verified claim is not filed, the two-year statute of limitations applies. In addition, in a pre-Tort Claims Act case, this Court held that when a plaintiff seeks to sue a political subdivision he “must fully comply with the prescribed terms and conditions of the statute, and the filing of a claim as required... is
*197 an essential prerequisite to a right of action.” Cochran v. City of Sumter, 242 S.C. 382, 386, 131 S.E. (2d) 153, 155 (1963) (overruled to the extent that it holds an action may not be maintained against the State without its consent in McCall v. Batson, 285 S.C. 243, 329 S.E. (2d) 741 (1985)). Further, this Court in Cochran held that when a statute requires verification, failure to comply will invalidate the notice, even if no prejudice results to the other party, as a verification is a matter of substance and not form. Id. 131 S.E. (2d) at 156. Therefore, Rink’s argument that his letter fulfilled the objective of a verified claim by putting the Hospital on notice is also without merit.Rink argues that Hospital should be equitably estopped from asserting the defense of statute of limitations. Rink bases his argument on the order granting him a voluntary dismissal on February 5,1990. The order stated that a more detailed order regarding costs taxed against Rink would be forthcoming. A more detailed order was issued on May 10, 1990. Rink contends that the voluntary dismissal was conditioned on his payment of costs and he could not pay or refile the suit until the more detailed order was issued.
Rink, however, refiled on April 6, 1990, prior to the more detailed order being issued but after the statute of limitations ran. The statute of limitations ran on March 12,1990. Rink refiled prior to the issuance of the order, although he now claims he could not do so.
It is well settled in South Carolina that when an action is dismissed without prejudice, the statute of limitations will bar a subsequent suit if the statute runs in the interim. Davis v. Lunceford, 287 S.C. 242, 335 S.E. (2d) 798 (1985). Equitable estoppel may prevent the defense of statute of limitations. Dillon County School Dist. Two v. Lewis Sheet Metal Works, Inc., 286 S.C. 207, 332 S.E. (2d) 555 (Ct. App. 1985). In Mende v. Conway Hosp., Inc., 304 S.C. 313, 404 S.E. (2d) 33 (1991), this Court held that a defendant was estopped from claiming the defense of statute of limitations when he consented to plaintiffs motion for voluntary dismissal and the statute had run prior to the granting of the dismissal. The present case is distinguishable from Mende because here the statute had not run when Rink moved for a dismissal and Hospital objected to the dismissal.
*198 Generally, equitable estoppel applies when the plaintiff has been induced or relies on the defendant’s conduct or promises that a settlement will be made and does not file suit until the statute of limitations has run. E.g., Clements v. Greenville County, 246 S.C. 20, 142 S.E. (2d) 212 (1965). This is not the situation in the present case. Therefore, this argument is without merit.Accordingly, we affirm the circuit court’s order granting Hospital summary judgment.
Affirmed.
Harwell, C.J., and Chandler, J., concur. Finney and Toal, JJ., dissenting in separate opinion. This section was amended in 1988 for actions arising after March 14,1988, by adding “Except as provided in Section 15-3-40,” to the beginning of the section.
Document Info
Docket Number: 23719
Citation Numbers: 422 S.E.2d 747, 310 S.C. 193, 1992 S.C. LEXIS 201
Judges: Moore, Harwell, Chandler, Finney, Toal
Filed Date: 9/21/1992
Precedential Status: Precedential
Modified Date: 10/19/2024