Robert D. McAdams, et al. v. Walter C. Grzelczyk et al.

The plaintiff, Robert D. McAdam (plaintiff),1
appeals from the Superior Court's grant of summary judgment in favor of the defendants, Walter
C. Grzelczyk and Travelers Rental Co., Inc. (Travelers) (collectively defendants), in this
personal injury action. Summary judgment was granted because the statute of limitations barred
the plaintiff's action. This case came before the Supreme Court for oral argument on November
1, 2006, pursuant to an order directing the parties to appear and show cause why the issues raised
in this appeal should not summarily be decided. After hearing the arguments of counsel and
examining the memoranda filed by the parties, we are of the opinion that this appeal may be
decided at this time, without further briefing or argument. For the reasons set forth below, we
affirm the Superior Court's ruling.

I

Facts and Travel

On February 9, 2000, plaintiff was involved in an automobile accident in Warwick with a
vehicle owned by and registered to Travelers and operated by Grzelczyk. After the accident, the
lawyer representing plaintiff in connection with the accident engaged in discussions with
Wausau Insurance Companies (Wausau),2 Travelers's insurer, regarding personal injuries
plaintiff allegedly suffered as a result of the collision. During these discussions, plaintiff's then
counsel informed Wausau's adjustor, Keith Allen, by letter dated February 11, 2002, as follows:

"We are now [ten] months since I sent you a demand to settle
this case. As of yet, I have not had a counter-offer to my demand.
Please provide same within [thirty] days. If I do not hear from you
regarding a counter-offer, I will assume that you are not willing to
make one and I will proceed forward with filing suit in this matter.

"It is this office[']s policy to initial [sic] a civil complaint at
least [six] months prior to the running of the statute of limitations
period. In that we are now within months of the statute, I must
proceed forward. Hopefully we will be able to resolve this within
the next month. Please contact me to discuss this."

In the months following this conversation, Allen never submitted a counteroffer.

In September 2002, plaintiff's claim file was transferred from Allen to Richard DiNicola,
a technical claims specialist at Wausau. DiNicola's internal file notes, dated October 31, 2002,
indicated that DiNicola reviewed the matter and believed Grzelczyk was clearly liable. After
this assessment, DiNicola requested from plaintiff's counsel Magnetic Resonance Imaging
(MRI) films relative to both plaintiff's preexisting back condition and his accident-related injury.
Although films concerning plaintiff's preexisting condition could not be located, DiNicola's
notes reflected that plaintiff's counsel agreed to forward the films regarding plaintiff's injury from the accident as soon as possible. DiNicola's notes also reflected that both parties were
open-minded about alternative dispute resolution if they could not agree on damages.

An affidavit filed by the secretary to plaintiff's counsel explained that on December 9,
2002, DiNicola informed her that he had received the MRI films and would contact plaintiff's
counsel in three to four weeks with a settlement offer. She also said that she called DiNicola
several weeks later to follow up on his evaluation, but only reached his voice mail where she left
messages.

The statute of limitations on plaintiff's claim expired on February 9, 2003, without
plaintiff having filed a complaint. Upon realizing that the statute of limitations had expired more
than a month before, plaintiff's counsel phoned DiNicola on March 19, 2003. DiNicola's notes
from that conversation reflected plaintiff's counsel's concern that his claim was time-barred.
While speaking with DiNicola, plaintiff's counsel substantially lowered his settlement proposal
from $450,000 to $175,000.

Finally, on April 7, 2003, plaintiff commenced this negligence action, seeking
compensation for his personal injury, including damages for pain and suffering, medical
expenses, and lost wages. The plaintiff's wife and two minor children also were parties to the
suit to recover for their loss of consortium. The defendants immediately moved under Rule
12(b)(6) of the Superior Court Rules of Civil Procedure to dismiss the adult plaintiffs' claims on
the ground that their actions were barred by the statute of limitations. Before a hearing was held
on defendants' motion, defendants also moved to dismiss the minor children's claims on the
same grounds. After a hearing on both motions, the Superior Court denied defendants' motion to dismiss, ruling that it would be improper to dismiss a claim when a claimant had reason to
believe a settlement was forthcoming and relied on that belief when opting against litigation.3

Unsatisfied with this ruling, defendants moved for summary judgment on similar
grounds. The plaintiff's counsel again argued that defendants had led him to believe that the
matter would be settled without his needing to file a lawsuit. After a hearing on defendants'
motion, the Superior Court granted summary judgment, noting that ceasing negotiations is not
equivalent to lulling the party into believing a case will be settled. On July 18, 2005, plaintiff
filed a premature notice of appeal.4 An order granting summary judgment was entered on July
20, 2005, and final judgment was entered on August 1, 2005.

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The plaintiff also contends on appeal that, under the doctrine of spoliation of evidence, an
adverse inference should be drawn with respect to particular notations made in Wausau's internal
company notes. Pointing to portions of DiNicola's notes that were "blackened out," plaintiff argues that a negative inference should be drawn against defendants. The defendants dismiss
plaintiff's spoliation argument, noting that the "blacked out" portions were redactions made
during the discovery process to protect privileged matters.

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