Opinion
No. 2-234 / 01-0338
Filed February 12, 2003
Appeal from the Iowa District Court for Pottawattamie County, J.C. Irvin, Judge.
Plaintiff appeals from the order granting a summary judgment motion in a suit against her workers' compensation carrier and its vocational rehabilitation counselor. AFFIRMED.
James E. Harris and Britany S. Shotkoski of Harris, Feldman Law Offices, Omaha, Nebraska, and Roger J. Kuhle of Roger J. Kuhle, P.C., West Des Moines, for appellant.
R. Laubenthal and Thomp. J. Pattermann of Smith Peterson Law Firm, Council Bluffs, for appellee General Casualty Insurance Co.
William R. Hughes, Jr. of Stuart, Tinley, Peters, Thorn, Hughes, Faust Madsen, Council Bluffs, for appellee Hardcopf-Bickley.
Considered by Mahan, P.J., and Miller and Hecht, JJ.
Plaintiff, Janie Scott, appeals from an order granting summary judgment and dismissing her action alleging bad faith, defamation, and breach of fiduciary duties against her workers' compensation carrier and its vocational rehabilitation counselor. We affirm.
I. Background facts and proceedings.
Janie Scott, a self-employed beautician, was injured in the course of her employment on June 22, 1991, and she subsequently filed a workers' compensation claim against General Casualty Insurance Company, her workers' compensation insurance carrier. General Casualty retained Jan Hardcopf-Bickley, d/b/a Bickley Associates (Bickley), as a medical manager to assist with the case. During the course of Scott's workers' compensation claim, Bickley prepared a "loss of earnings capacity report," which was purportedly signed by Jan Hardcopf-Bickley and Lori Peterson. In pertinent part, this report states, "Ms. Scott appears to be fairly focused on the pain that she experiences" and "she also allows the pain to alter her activities unnecessarily." On June 9, 1993, this report was presented to General Casualty. Later, in a May 1, 1996 letter from Bickley to Dr. Robert Cofield, a shoulder specialist, Bickley stated that Scott had cancelled an MRI. In a January 27, 1997 letter to Dr. Cofield, Bickley reported Scott had "refused a follow-up with Dr. Walsh."
On October 28, 1997, Scott filed the present tort action naming General Casualty and Bickley as defendants. Her petition asserted claims of breach of fiduciary duty, bad faith, libel and slander, and included a prayer for both actual and punitive damages. On February 18, 2000, both Bickley and General Casualty moved for summary judgment, alleging in particular that the action was not filed with in the two-year statute of limitations provided in Iowa Code section 614.1(2) (1999). The district court agreed and dismissed all of Scott's claims that arose before October 28, 1995. On September 27, 2000, General Casualty and Bickley made a second motion for summary judgment. The court subsequently granted that motion, the effect of which was to dismiss Scott's claims in their entirety. Scott appeals.
Scott filed her action on October 28, 1997.
II. Scope and standards of review.
Our review of a summary judgment ruling is for corrections of errors of law. Kennedy v. Zimmermann, 601 N.W.2d 61, 63 (Iowa 1999). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fitzgerald v. Salsbury Chemical Inc., 613 N.W.2d 275, 280 (Iowa 2000). Our task is to determine only whether a genuine issue of material fact exists and whether the trial court correctly applied the law. Adam v. Mount Pleasant Bank Trust Co., 355 N.W.2d 868, 872 (Iowa 1984). We will view the record in the light most favorable to the non-moving party. Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2000).
III. Statute of limitations.
In its ruling on the first summary judgment motion, the district court dismissed all claims related to actions occurring prior to October 28, 1995. In particular, the court found that, because Scott's petition was filed on October 28, 1997, all claims based upon defendants' conduct occurring prior to October 28, 1995 were beyond the two-year statute of limitations provided in section 614.1(2). In granting summary judgment, the court rejected claims that the theories of "fraudulent concealment" and the "continuing treatment doctrine" served to toll the statute of limitations. Scott now argues the court improperly dismissed part of her action on statute of limitations grounds.
A. Fraudulent concealment. Scott urged below that Bickley fraudulently concealed the fact she drafted the loss of earning capacity report, which allegedly contained false and defamatory statements. Accordingly, she believed the statute of limitations should have been tolled until March 20, 1997, the date on which she claims she first learned the identity of the report's author.
The common-law doctrine of fraudulent concealment provides:
[W]here the party against whom a cause of action existed in favor of another, by fraud or actual fraudulent concealment prevented such other from obtaining knowledge thereof, the statute would only commence to run from the time the right of action was discovered, or might, by the use of diligence, have been discovered.
McClendon v. Beck, 569 N.W.2d 382, 385 (Iowa 1997) (citing Koppes v. Pearson, 384 N.W.2d 381, 386 (Iowa 1986)). The alleged acts of concealment must be "independent of the alleged act ruled on to establish liability." Van Overbeke v. Youberg, 540 N.W.2d 273, 276 (Iowa 1995). The person relying on fraudulent concealment to avoid a statute of limitations ordinarily has the burden to prove the defendant affirmatively concealed the facts on which the plaintiff would predicate its cause of action. Brown v. Public Employment Rel. Bd, 345 N.W.2d 88, 96 (Iowa 1984).
We conclude the district court correctly rejected Scott's assertion of fraudulent concealment in this case. Scott contended Bickley concealed authorship of the loss of earnings capacity report and attributed the document to her associate, Lori Peterson. However, the contents of the report to which Scott objected were not concealed. Scott fails to explain how the concealment of the identity of the report's author caused her damage. Accordingly, she failed to establish Bickley "affirmatively concealed the facts on which [Scott] would predicate [her] cause of action." Id. B. Continuous treatment doctrine. Scott similarly asserts the district court erred in failing to conclude the continuous treatment doctrine served to toll the statute of limitations. A number of courts have adopted the "continuous treatment doctrine" and hold that when the plaintiff is in the continuing care of the negligent actor for the same injury out of which a malpractice action arose, the statute of limitations may be tolled under certain circumstances until the end of treatment. See Langner v. Simpson, 533 N.W.2d 511, 519 (Iowa 1995).
Like the district court, we decline to extend the continuous treatment doctrine to the circumstances of this case. The doctrine is generally limited to professional negligence claims against attorneys and doctors. See McClendon, 569 N.W.2d at 385. Notwithstanding any contentions to the contrary, Scott's petition contains no allegation of negligence.
C. Equitable principles. Finally, Scott argues "equitable principles" prevent Bickley and General Casualty from seeking the protection of the statute of limitations. Because this issue was neither raised below nor addressed by the district court, we decline to address it. See Davoren v. Iowa Employment Security Comm'n, 277 N.W.2d 602, 603 (Iowa 1979).
IV. Breach of fiduciary duty.
In its ruling on the second motion for summary judgment motion, the district court found no genuine issue of material fact remained as to Scott's allegation General Casualty and Bickley breached a fiduciary duty owed to her. The court determined that although there may have been sufficient evidence to generate a jury question on the existence of such a fiduciary relationship, Scott made no showing that any duty was breached or that she had suffered any injury or damages as a result of the breach.
"A fiduciary relationship exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relationship." Kurth v. Van Horn, 380 N.W.2d 693, 695 (Iowa 1986) (citing Restatement (Second) of Torts § 874 cmt. a (1979)). A confidential relationship exists when one person has gained the confidence of another and purports to act or advise with the other's interest in mind. Wilson v. IBP, 558 N.W.2d 132, 138 (Iowa 1996). The purpose of the doctrine is to defeat and protect betrayals of trust and abuses of confidence. Hoffman v. National Med. Enters., Inc., 442 N.W.2d 123, 125 (Iowa 1989).
As noted, the district court's ruling on the fiduciary duty issue was predicated upon two grounds — the lack of evidence of any breach and damages. On appeal, Scott does not specifically attack the court's ruling on either of these grounds; rather, she appears merely to argue the merits of the existence of the fiduciary relationship. For purposes of our decision we assume, without deciding, that Bickley stood in the role of a fiduciary to Scott. See Wilson v. IBP, 558 N.W.2d at 138. However, we affirm the district court's conclusion no issue remains as to whether Scott suffered damages as a result of the alleged breach. First, Scott settled her workers' compensation claim with General Casualty and makes no claim that she did not receive all benefits to which she was entitled. Furthermore, we note that Bickely's communications which form the basis of Scott's breach of fiduciary duty claim were directed to Dr. Coffield. The doctor subsequently testified he did not remember receiving Bickley's communications and that even if he had received them, they would not have affected his treatment of Scott. As such, we affirm the district court's summary judgment ruling on this issue.
V. Bad faith.
Scott's petition also sought recovery on a claim of "bad faith," based upon "the breaches of Bickley's confidential relationship and fiduciary duties" and General Casualty's "reckless and . . . willful and wanton disregard of [Scott's rights] in employing or retaining Bickley as its agent." Our supreme court has recognized that to establish a claim for bad faith, a plaintiff must show the absence of a reasonable basis for delay or denial of benefits of an insurance policy and defendant's knowledge or reckless disregard of the lack of a reasonable basis for denying the claim. See Dolan v. Aid Ins. Co., 431 N.W.2d 790, 794 (Iowa 1988); see also Boylan v. American Motorists Ins. Co., 489 N.W.2d 742, 743 (Iowa 1992) (recognizing the tort liability of workers' compensation insurers for willful or reckless disregard of their obligation to pay benefits to injured employees). Because Scott failed to present evidence of a delay or denial of benefits by General Casualty, we affirm the district court's summary judgment ruling on this issue.
VI. Defamation.
Scott's petition alleges Bickley provided inaccurate or misleading information regarding her medical condition. Libel is the "malicious publication, expressed either in printing or in writing, or by signs and pictures, tending to injure the reputation of another person or to expose [the person] to public hatred, contempt, or ridicule or to injure [the person] in the maintenance of [the person's] business." Plendl v. Beuttler, 253 Iowa 259, 262, 111 N.W.2d 669, 670-71 (1961). Words are libelous per se if they are of such a nature, whether true or not, that the court can presume as a matter of law that their publication will have libelous effect. Haas v. Evening Democrat Co., 252 Iowa 517, 522, 107 N.W.2d 444, 447 (1961). An attack on the integrity and moral character of a party is libelous per se. Shaw Cleaners Dyers, Inc. v. Des Moines Dress Club, 215 Iowa 1130, 1137, 245 N.W. 231, 234 (1932). When the language of the publication is unambiguous, the issue of whether the publication is defamatory per se is for the court. Vinson v. Linn-Mar Comm. Sch Dist., 360 N.W.2d at 116. Libel per quod simply means that one must refer to facts or circumstances beyond the words actually used to establish the defamation. Johnson v. Nickerson, 542 N.W.2d 506, 510 (Iowa 1996). In such a case the plaintiff must prove malice, falsity, and damages. See Schlegel v. Ottumwa Courier, 585 N.W.2d 217, 222 (Iowa 1998).
In particular, Scott urged that the letters sent to Dr. Coffield on May 1, 1996 and on January 27, 1997, in which Bickley represented that Scott had refused recommended treatment and refused a follow-up, can only be reasonably interpreted to interfere with her relationship with her medical care providers by attacking her integrity and moral character. We believe the court correctly determined the two statements in question are not libelous per se, and thus properly required Scott to establish proof of malice and damages. See id. Knowledge of more facts or circumstances is necessary in order to establish the words' defamatory meaning. As noted previously, both in our discussion of the fiduciary duty and bad faith issues, Scott has not presented any evidence of actual damages resulting from Bickley's communications to Dr. Cofield. We therefore conclude the district court properly sustained the motion for summary judgment on Scott's defamation claim.
We do not address the argument Bickley's loss of earnings capacity report was defamatory in that claims based on this report were resolved on statute of limitations grounds.
VII. Punitive Damages.
Finally, Scott maintains the court erred in granting summary judgment on her claim for punitive damages. Punitive damages are merely incidental to the main cause of action, Campbell v. Van Rockel, 347 N.W.2d 406, 510 (Iowa 1984), and do not constitute an independent cause of action. Having affirmed the district court's decision to grant summary judgment on the entirety of Scott's cause of action, we also affirm the portion of the ruling rejecting her claim for punitive damages.
AFFIRMED.