IN THE SUPREME COURT OF IOWA 

No. 80 / 04–1655 

Filed August 29, 2008 

PAMELA SUE HOOK, 

 Appellee, 

vs. 

CARL FREDERICK LIPPOLT and the STATE OF IOWA, 

 Appellants. 

 Appeal from the Iowa District Court for Webster County, Ronald H. 

Schechtman, Judge. 

 On interlocutory appeal from district court’s ruling denying 

summary judgment to defendants, defendants argue plaintiff’s claim was 

subject to dismissal on statute-of-limitations grounds. REVERSED AND 

REMANDED. 

 Thomas J. Miller, Attorney General, and Joanne Moeller and Mark 

Hunacek, Assistant Attorneys General, for appellants. 

 Tito Trevino of Trevino Law Offices, Fort Dodge, for appellee. 
 2

TERNUS, Chief Justice. 

 The appellee, Pamela Hook, brought suit for injuries she sustained 

in an automobile accident caused by appellant Carl Lippolt, who at the 

time of the accident was working as a volunteer for the Department of 

Human Services. After dismissing her initial lawsuit against Lippolt, 

Hook filed the present action against Lippolt and the State under the 

State Tort Claims Act. See Iowa Code ch. 669 (1999). Both defendants 

asserted a statute-of-limitations defense, and Lippolt claimed statutory 

immunity. See id. §§ 669.13, .24. The district court denied motions for 

summary judgment filed by the defendants, rejecting their argument that 

the plaintiff failed to file her claim with the state appeal board within the 

time limits established by the governing statute of limitations and 

rejecting Lippolt’s claim of statutory immunity. On appeal, the 

defendants assert the district court erred because the plaintiff discovered 

her cause of action more than two years before filing her administrative 

claim, and therefore, this suit is barred. The defendants also argue there 

is no evidence to support the plaintiff’s claim the defendants are 

equitably estopped from relying on the statute-of-limitations defense 

under the doctrine of fraudulent concealment. Finally, Lippolt contends 

he enjoys immunity from suit as a matter of law. 

 Upon our review of the record and the parties’ arguments, we 

conclude there is no genuine issue of material fact with respect to 

Lippolt’s entitlement to immunity, and therefore, his summary judgment 

motion on the plaintiff’s negligence claim should have been granted. 

With respect to the parties’ statute-of-limitations defense, we conclude as 

a matter of law the plaintiff’s claim was untimely and the defendants are 

not equitably estopped from relying on the statute of limitations as a 

defense. The district court erred in failing to rule the plaintiff’s 
 3

negligence claim is barred. Accordingly, we reverse the district court’s 

ruling and remand this case for entry of judgment in favor of the 

defendants on the negligence count of plaintiff’s petition. 

 I. Background Facts and Proceedings. 

 On June 9, 2000, Pamela Hook and Carl Lippolt were involved in a 

car accident when Lippolt entered an intersection on a red light and 

struck Hook’s vehicle. Hook was injured in the accident. Lippolt, who 

was seventy-eight years old, admitted from the beginning that the 

collision was his fault. Following the accident, Lippolt’s personal 

automobile insurance carrier settled Hook’s property damage claim, but 

no agreement could be reached on her personal injury claim. 

Consequently, on March 13, 2002, Hook filed suit against Lippolt. 

 In July 2002, more than two years after the accident, Hook 

propounded interrogatories to Lippolt. Lippolt revealed in his answers 

that, at the time of the accident, he was using his own vehicle to provide 

transportation services for a client of the Department of Human Services 

(DHS) as a volunteer for the department.1 The preparation and service of 

Lippolt’s interrogatory answers was the first time Hook, Hook’s attorney, 

and Lippolt’s attorney were aware of these facts. Thereafter, Lippolt was 

permitted to amend his answer to assert an immunity defense under 

chapter 669. See id. § 669.24 (providing for immunity from personal 

liability for persons performing voluntary services for a state agency). 

Lippolt was also allowed to add an affirmative defense based on Hook’s 

failure to submit her claim to the state appeal board within two years of 

the accident. See id. § 669.13 (requiring claim against state or state 

 1The plaintiff asked the following interrogatory: “State whether you were acting 

within the course and scope of any agency, employment, or service at the time of the 

collision and describe the type of relationship of the persons involved.” 
 4

employee be first presented to state appeal board within two years of 

accrual or be “forever barred”). In July 2003, Hook filed a dismissal 

without prejudice of her lawsuit against Lippolt. She did not appeal the 

district court’s ruling allowing Lippolt to assert the immunity and 

statute-of-limitations defenses. 

 Nearly three years after the accident, on June 3, 2003, Hook filed 

an administrative claim with the state appeal board seeking 

compensation for her personal injury. After six months passed with no 

response from the board, Hook withdrew her claim and commenced the 

current lawsuit against Lippolt and the State on January 27, 2004. See 

id. § 669.5 (stating that after six months with no response from the 

board, claimant may withdraw claim from board’s consideration and file 

suit). Hook made two claims in her petition: (1) a negligence claim 

against both defendants for the damages she sustained in the June 9, 

2000 accident; and (2) a fraudulent misrepresentation claim against 

Lippolt based on representations he made to the plaintiff from April 8, 

2002, to May 21, 2003, in the first lawsuit. With respect to Hook’s 

negligence claim, the defendants asserted a statute-of-limitations defense 

in their answers. Lippolt also claimed statutory immunity under section 

669.24. 

 Lippolt filed a motion for partial summary judgment, seeking 

summary judgment on Hook’s negligence claim. He asserted his 

immunity and statute-of-limitations defenses should be decided in his 

favor as a matter of law. The State subsequently filed its own motion for 

summary judgment based on the statute of limitations. The plaintiff also 

filed a motion for partial summary judgment claiming the statute of 

limitations had been tolled by the discovery rule and asking the court to 

rule as a matter of law that her administrative claim was timely filed. 
 5

Although Hook did not contest the fact that Lippolt’s “personal assets 

[were immune] from attachment or execution to satisfy any judgment,” 

she claimed he was a proper defendant for two reasons. Because the 

State would be required to defend and indemnify Lippolt under section 

669.21, Hook reasoned that statute anticipates that even volunteers not 

personally liable are still proper parties in an action against the State. In 

addition, Hook asserted Lippolt’s personal liability insurance policy was 

available to satisfy any judgment by virtue of section 669.20,2 and 

therefore, it was necessary to include Lippolt as a defendant. 

 In ruling on these various motions, the district court concluded as 

a matter of law that the plaintiff had neither actual nor imputed 

knowledge of her cause of action more than two years prior to filing her 

administrative claim. Therefore, the court sustained the plaintiff’s 

motion for partial summary judgment on the defendants’ statute-oflimitations defense and overruled the defendants’ summary judgment 

motions on this issue. With respect to the immunity issue, the district 

court ruled that Lippolt was not personally liable and section 669.20 did 

not make Lippolt’s insurer liable. Although the court overruled Hook’s 

motion for partial summary judgment on the insurance issue, the court 

denied, for unexplained reasons, Lippolt’s motion for partial summary 

judgment on his immunity defense. We granted the defendants’ 

application for interlocutory appeal to review the district court’s 

summary judgment rulings. 

 2Iowa Code section 669.20 states in pertinent part: “Whenever a claim or suit 

against the state is covered by liability insurance, the provisions of the liability 

insurance policy on defense and settlement shall be applicable notwithstanding any 

inconsistent provisions of this chapter.”
 6

 II. Scope of Review. 

 Summary judgment rulings are reviewed for correction of errors of 

law. Hallett Constr. Co. v. Meister, 713 N.W.2d 225, 229 (Iowa 2006). “To 

obtain a grant of summary judgment on some issue in an action, the 

moving party must affirmatively establish the existence of undisputed 

facts entitling that party to a particular result under controlling law.” 

Interstate Power Co. v. Ins. Co. of N. Am., 603 N.W.2d 751, 756 (Iowa 

1999). 

 III. Lippolt’s Immunity. 

We begin our review by considering the district court’s ruling 

denying Lippolt’s motion for partial summary judgment on Hook’s 

negligence claim based on Lippolt’s immunity defense under section 

669.24. 

 A. Statutory Provisions. At the time of the events giving rise to 

this lawsuit, chapter 669 required that “any claim as defined in this 

chapter” be submitted to the state appeal board for disposition. Iowa 

Code §§ 669.3, .5. Section 669.2(3) defines “claim” to include “[a]ny 

claim against an employee of the state for money only . . . on account of 

personal injury or death, caused by the negligent or wrongful act or 

omission of any state employee while acting within the scope of the 

employee’s office or employment.” Id. § 669.2(3)(b). An “employee of the 

state” is broadly defined to include 

agents . . . of the state or any state agency . . . and persons 

acting on behalf of the state or any state agency in any 

official capacity, temporarily or permanently in the service of 

the state of Iowa, whether with or without compensation . . . . 

Id. § 669.2(4) (emphasis added). It is important to keep in mind that the 

term “employee” as used in chapter 669 includes unpaid volunteers as 

well as paid workers. 
 7

We turn now to the indemnity and immunity provisions of this 

statute. At the outset, it is helpful to note the distinction between a right 

to be defended and indemnified by the State and immunity—the absence 

of personal liability. See Dickerson v. Mertz, 547 N.W.2d 208, 213 (Iowa 

1996) (referring to statute providing that state employees “are not 

personally liable” for certain claims as granting such employees 

immunity). Chapter 669’s indemnity provision is found in 

section 669.21, which provides that the State will defend and indemnify 

“any employee” against claims falling within chapter 669, subject to 

exceptions not pertinent to this case. Iowa Code § 669.21. 

Chapter 669 contains two immunity provisions, one covering all 

employees and one applicable to volunteers. See id. §§ 669.23, .24. All 

employees are granted immunity for exempted claims, i.e., claims that do 

not fall within the State Tort Claims Act. See Iowa Code § 669.23 

(“Employees of the state are not personally liable for any claim which is 

exempted under section 669.14.”); see also id. § 669.14 (exempting 

specified claims from the provisions of the State Tort Claims Act). Hook’s 

claim is not exempted under section 669.14, so the immunity provided to 

employees by section 669.23 does not protect Lippolt from personal 

liability for Hook’s damages. 

Lippolt’s immunity defense is based on section 669.24, which 

grants broader immunity to volunteers: 

 A person who performs services for the state 

government or any agency or subdivision of state 

government and who does not receive compensation is not 

personally liable for a claim based upon an act or omission 

of the person performed in the discharge of the person’s 

duties, except for acts or omissions which involve intentional 

misconduct or knowing violation of the law, or for a 

transaction from which the person derives an improper 

personal benefit. For purposes of this section, 
 8

“compensation” does not include payments to reimburse a 

person for expenses. 

Id. § 669.24. It is the applicability of this provision that is at issue here. 

B. Parties’ Contentions. Although conceding Lippolt provided 

services to DHS without compensation, Hook seems to argue Lippolt 

cannot benefit from the immunity of section 669.24 due to a related 

statute governing DHS volunteers. Iowa Code section 217.13(3) states: 

“All volunteers registered with [DHS] and in compliance with 

departmental rules are considered state employees for purposes of 

chapter 669.”3 It appears the plaintiff contends that, if Lippolt is 

considered an employee for purposes of chapter 669, he would not enjoy 

the protection from personal liability provided by section 669.24 to 

volunteers. Lippolt responds that the legislature surely did not intend to 

deprive DHS volunteers of the immunity available to other state 

volunteers. 

C. Discussion. We conclude Hook’s argument rests on a faulty 

premise: that the terms “employee” and “volunteer” are mutually 

exclusive under chapter 669. As noted earlier, section 669.2(4) defines 

“employee” broadly to include volunteers. Consequently, the fact that 

Lippolt may be classified by section 217.13(3) as a state employee for 

purposes of chapter 669 does not preclude him from also qualifying as a 

volunteer for purposes of that chapter. We believe that, rather than 

intending to deprive DHS volunteers of immunity under section 669.24 

by its enactment of section 217.13(3), the legislature intended to assume 

responsibility under chapter 669 for the torts of persons purporting to 

 3

Hook does not assert there is any genuine issue of material fact with respect to 

whether Lippolt was registered with DHS and in compliance with departmental rules. 

Therefore we accept, as do the parties, that Lippolt satisfies the requirements of section 

217.13(3) so as to qualify as a “state employee[] for purposes of chapter 669.” 
 9

act for DHS only if such persons were registered with DHS and in 

compliance with departmental rules. 

 Hook argues that, even if Lippolt is immune under section 669.24, 

he may still be sued for negligence in this lawsuit. We disagree. Section 

669.24 states that a volunteer “is not personally liable.” Id. § 669.24. If 

Lippolt is not liable, there is no legal basis to support Hook’s negligence 

suit against Lippolt. For the same reason, Hook’s claim that she is 

entitled to sue Lippolt to reach his personal liability insurance must fail. 

The ability to sue an individual for damages depends not on the 

individual’s purchase of insurance, but on his liability under the law, a 

liability Lippolt does not have. 

As a final matter, Hook argues the legislature must have 

contemplated suit against immune tortfeasors because such tortfeasors 

are included within the defense and indemnity provisions of section 

669.21, and therefore, she concludes, immune volunteers are subject to 

suit. To the extent Hook’s initial premise is accurate, it does not support 

her conclusion. Ironically, this lawsuit illustrates why the legislature 

would extend a defense and indemnity to immune volunteers. 

Notwithstanding Lippolt’s immunity from personal liability, he has been 

required to defend this action. Thus, he has benefited from section 

669.21 under circumstances not inconsistent with his personal 

immunity from suit under section 669.24. 

For the foregoing reasons, we conclude Lippolt was entitled to 

summary judgment on Hook’s negligence claim based on his statutory 

immunity. We now discuss the defendants’ statute-of-limitations 

defense. 
 10

IV. Statute of Limitations—the Discovery Rule. 

 The governing statute of limitations is contained in Iowa Code 

section 669.13, which provides in relevant part: 

 Every claim and suit permitted under this chapter 

shall be forever barred, unless within two years after such 

claim accrued, the claim is made in writing to the state 

appeal board under this chapter. The time to begin a suit 

under this chapter shall be extended for a period of six 

months from the date of mailing notice to the claimant by 

the state appeal board as to the final disposition of the claim 

or from the date of withdrawal of the claim from the state 

appeal board under section 669.5, if the time to begin suit 

would otherwise expire before the end of such period. 

 . . . . 

 This section is the only statute of limitations 

applicable to claims as defined in this chapter. 

Id. § 669.13. We have previously held the discovery rule is applicable to 

a state tort claim under chapter 669. See Callahan v. State, 464 N.W.2d 

268, 272 (Iowa 1990). Under the discovery rule, “the statute of 

limitations does not begin to run until the injured person has actual or 

imputed knowledge of all the elements of the cause of action.” Franzen v. 

Deere & Co., 377 N.W.2d 660, 662 (Iowa 1985). With respect to imputed 

knowledge, we have said: 

 In addition, the person is charged with knowing on the 

date of the accident what a reasonable investigation would 

have disclosed. The period of limitations is the outer time 

limit for making the investigation and bringing the action. 

The period begins at the time the person is on inquiry notice: 

 [L]imitations begin to run when a claimant 

gains knowledge sufficient to put [the claimant] 

on inquiry. As of that date, [the claimant] is 

charged with knowledge of facts that would have 

been disclosed by a reasonably diligent 

investigation. The beginning of limitations is not 

postponed until the end of an additional period 

deemed reasonable for making the investigation. 
 11

Franzen, 377 N.W.2d at 662 (quoting Lutheran Hosp. v. Levy, 482 A.2d 

23, 27 (Md. Ct. Spec. App. 1984)) (emphasis added); accord Kendall/Hunt 

Publ’g Co. v. Rowe, 424 N.W.2d 235, 243 (Iowa 1988) (“[T]he limitations 

period begins when a claimant has knowledge sufficient to put that 

person on inquiry notice.”). 

Based on these principles, the initial step in our analysis is to 

determine whether the undisputed facts establish as a matter of law 

when Hook had actual knowledge of the elements of her claims against 

Lippolt and the State or when she knew enough to be charged with a 

duty to inquire. If we conclude Hook had enough knowledge to be 

charged with a duty to investigate more than two years prior to filing this 

suit, we must then examine whether, as a matter of law, a reasonably 

diligent investigation would have disclosed the elements of her claims. If 

a reasonably diligent investigation would have disclosed the elements of 

her claims against Lippolt and the State, she is charged with that 

knowledge as of the date her duty to investigate arose. 

A. Discovery of Claim Against Lippolt. Although we have 

already determined that Lippolt has no personal liability for Hook’s 

negligence claim, it is helpful to our analysis of the State’s statute-oflimitations defense to begin with a review of Hook’s discovery of her claim 

against Lippolt. It is undisputed that, on June 9, 2000, Hook knew the 

automobile she was driving was hit by a car driven by Lippolt when he 

entered an intersection against a red light. Hook also knew immediately 

that she was injured and that her car was damaged. Lippolt did not 

deny that he was at fault for the accident. There is no question under 

the undisputed facts in the record that Hook had actual knowledge of all 

the elements of her claim against Lippolt immediately after the June 9, 
 12

2000 accident, substantially more than two years before she filed her 

claim with the state appeal board on June 3, 2003. 

 It is true that Hook did not know within two years of the accident 

that Lippolt was acting as a state volunteer at the time of the collision. 

Knowledge of Lippolt’s volunteer status was not required, however, in 

order to commence the statute of limitations because that fact was not 

an element of Hook’s claim. See Franzen, 377 N.W.2d at 662 (requiring 

“actual or imputed knowledge of all the elements of the cause of action” 

(emphasis added)). Lippolt’s volunteer status simply triggered special 

prerequisites for filing suit against Lippolt. Hook had the statutory twoyear period to determine the appropriate legal channels through which to 

pursue her claim. 

 We conclude as a matter of law Hook’s claim against Lippolt 

accrued on June 9, 2000. Because she did not file her administrative 

claim against Lippolt within two years, Hook’s claim against Lippolt is 

barred unless Lippolt is equitably estopped from asserting the statute as 

a defense, a question we address later in this opinion. 

B. Discovery of Claim Against State. As we have discussed, 

Hook had actual knowledge of her injury and that it was caused by 

Lippolt’s negligence on the date of the accident. She did not have actual 

knowledge that the State was vicariously liable for Lippolt’s conduct until 

more than two years later. The State claims, however, that Hook had 

imputed knowledge of that fact as of June 9, 2000, under the concept of 

inquiry notice, and consequently, the limitations period against the State 

commenced on the date of the accident. 

 The plaintiff does not dispute that she had actual knowledge of her 

claim against Lippolt immediately after the accident, but she disagrees 

that she was on inquiry notice of her claim against the State based upon 
 13

this knowledge. Hook claims she had no duty to pursue any 

investigation because she had no reason to “explore[] whether Lippolt 

was really liable” or to “question whether [Lippolt] had immunity.” But 

the issue before us with respect to Hook’s discovery of her claim against 

the State is not Lippolt’s liability or his immunity. The pertinent issue is 

whether an injured person has a duty to investigate who might be liable 

for her injuries. It was the district court’s failure to make this critical 

distinction—between Lippolt’s claimed immunity and the State’s 

liability—that led the district court to erroneously conclude Hook was not 

on inquiry notice. The district court reasoned that, until Hook had some 

basis to believe Lippolt was immune, she had no duty to investigate a 

possible vicarious liability claim against a third party. 

 We think Lippolt’s immunity is a red herring and has little to do 

with an injured party’s duty to undertake a reasonably diligent 

investigation of the nature and extent of her legal rights to recover for an 

injury. See Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir. 1985) 

(“Once the injured party is put on notice, the burden is upon him to 

determine within the limitations period whether any party may be liable 

to him.”); see also Buechel v. Five Star Quality Care, Inc., 745 N.W.2d 

732, 736 (Iowa 2008) (“Once a person is aware that a problem exists, the 

person has a duty to investigate.”). Under many circumstances, a 

tortfeasor remains personally liable even though a third party might have 

vicarious liability, as in the situation of employee/employer or vehicle 

operator/vehicle owner. If a duty to investigate the existence of a 

vicariously liable defendant did not arise until the injured party 

discovered the tortfeasor’s immunity, the statute of limitations would 

never commence against a vicariously liable defendant in cases in which 

the tortfeasor is not immune. We think an injured party who knows of 
 14

her injury and its cause must conduct a reasonable investigation of the 

nature and extent of her legal rights that includes inquiry into the 

identity of any vicariously liable parties. An injured party’s duty to 

investigate the identity of persons liable for her injury is not a seriatim 

process that stops upon the discovery of one defendant and arises again 

only when that defendant’s liability is questioned. 

 In a case brought under the Federal Tort Claims Act (FTCA), the 

Fourth Circuit Court of Appeals held plaintiffs who knew the injury to 

their decedent, the cause of the injury, and the identity of the tortfeasors, 

but not that the tortfeasors were federal employees, were on inquiry 

notice of their claim against the government, stating commencement of 

the statute of limitations under the FTCA “does not wait until a plaintiff 

is aware that an alleged tort-feasor is a federal employee.” Gould v. U.S. 

Dep’t of Health & Human Servs., 905 F.2d 738, 745 (4th Cir. 1990). The 

court stated: 

Plaintiffs’ construction of the limitations statute would 

obviate the necessity of due diligence, even when the injury 

and its cause are known and a minimum inquiry would have 

led plaintiffs to discover in a timely manner the employment 

status of the [tortfeasors]. This approach would remove 

incentives for the timely investigation and prompt 

presentation of claims and would enable a plaintiff to 

maintain a FTCA action against the government years after 

plaintiff’s injury and its cause are well known if, for any 

reason, it escaped the plaintiff’s attention—even absent 

reasonable investigation—that the alleged tort-feasor was a 

government agent acting within the scope of his employment. 

An open-ended rule would vitiate the very purpose of the 

statute of limitations. 

Id. at 746. 

 A Maryland court reached a similar conclusion in Conaway v. 

State, 600 A.2d 1133 (Md. Ct. Spec. App. 1992). In Conaway, the 

plaintiff sued the state for allegedly negligent treatment he received while 
 15

a prisoner at a state institution. 600 A.2d at 1134. Although the 

plaintiff filed a timely claim against the state under the Maryland Tort 

Claims Act, he did not learn the identity of the private entity providing 

health care at the state prison—Frank Basil, Inc.—until the time for filing 

a claim had expired. Id. He then amended his complaint to assert a 

claim against Basil, but that claim was dismissed on statute-oflimitations grounds. Id. at 1134, 1142. The Maryland appeals court 

upheld Basil’s dismissal, rejecting the plaintiff’s argument his claim was 

saved by the discovery rule: “We hold that appellant was aware of the 

circumstances surrounding his claim no later than September 8, 1986, 

and that he had three years from that date to bring suit against the 

proper parties.” Id. at 1141–42; accord Brown v. Drake-Willock Int’l, Ltd., 

530 N.W.2d 510, 513 (Mich. Ct. App. 1995) (“Our courts consistently 

have held that the statute of limitations is not tolled pending discovery of 

the identity of the parties where all the elements of the cause of action 

exist.”). 

Here, Hook knew she had been injured and knew who caused her 

injury. Therefore, she was on inquiry notice and had “a duty to make a 

reasonable investigation” to ascertain the exact parameters of her claim. 

Kendall/Hunt Publ’g Co., 424 N.W.2d at 243–44. It cannot be disputed 

that, had Hook inquired to ascertain whether there were any entities or 

persons other than Lippolt that might be liable for her damages, she 

would have discovered Lippolt’s volunteer status and the relationship 

between Lippolt and the State. Indeed, it took only one interrogatory 

propounded during discovery to reveal the State’s vicarious liability. 

 In summary, Hook knew of her injuries and Lippolt’s fault in 

causing those injuries on June 9, 2000. As of that date, the plaintiff had 

a duty to investigate the identity of any party that might be vicariously 
 16

liable for Lippolt’s negligence. As a matter of law, a reasonably diligent 

inquiry would have led to discovery of the State’s liability. Consequently, 

under the doctrine of inquiry notice, Hook is charged with knowledge of 

her claim against the State on June 9, 2000, and accordingly, her claim 

against the State accrued on that date. Because Hook filed her 

administrative claim nearly three years later, rather than within two 

years of its accrual as required by section 669.13, this lawsuit is barred 

unless the defendants are estopped from relying on their statute-oflimitations defense, an issue we now address. 

 V. Fraudulent Concealment. 

 The plaintiff argues that, even if her administrative claim was not 

timely filed, the defendants are estopped from asserting the statute of 

limitations as a defense under the doctrine of fraudulent concealment. 

The district court did not address this issue, as it concluded Hook was 

not on inquiry notice. Because we have concluded the statute of 

limitations had expired as a matter of law prior to the commencement of 

this suit, we now consider whether the defendants are estopped from 

asserting the statute of limitations as a bar to this action. 

 To establish equitable estoppel, the plaintiff must prove by clear 

and convincing evidence: 

(1) The defendant has made a false representation or has 

concealed material facts; (2) the plaintiff lacks knowledge of 

the true facts; (3) the defendant intended the plaintiff to act 

upon such representations; and (4) the plaintiff did in fact 

rely upon such representations to his prejudice. 

Christy v. Miulli, 692 N.W.2d 694, 702 (Iowa 2005) (quoting Meier v. AlfaLaval, Inc., 454 N.W.2d 576, 578–79 (Iowa 1990)); accord Dierking v. 

Bellas Hess Superstore, Inc., 258 N.W.2d 312, 315 (Iowa 1977). “This 

doctrine is intended to prevent a party from benefiting from ‘the 
 17

protection of a limitations statute when by his own fraud he has 

prevented the other party from seeking redress within the period of 

limitations.’ ” Christy, 692 N.W.2d at 702 (quoting Borderlon v. Peck, 661 

S.W.2d 907, 909 (Tex. 1983)). 

 Hook claims “Lippolt, through his attorneys, made false 

representations or concealed the material fact that he was a state 

volunteer” at the time of the accident. “Conduct amounting to false 

representation or concealment needs to be deceptive or fraudulent.” 

Meier, 454 N.W.2d at 580. To establish deceptive or fraudulent conduct, 

there must be proof the defendant acted “with the intent to mislead the 

injured party.” Id.; accord Dierking, 258 N.W.2d at 316 (requiring proof 

defendant “knowingly took a position with the intention that it be acted 

upon”); see also Bensman v. United States Forest Serv., 408 F.3d 945, 

965 (7th Cir. 2005) (equitable estoppel requires a showing the defendant 

“engaged in affirmative misconduct rather than mere negligence”). 

 In Dierking, the defendant’s insurer unintentionally wrote an 

incorrect injury date on a proposed release and check given to the 

injured plaintiff during the two-year limitations period. 258 N.W.2d at 

314. Subsequently, the plaintiff and her attorney relied on the injury 

date stated by the insurer in filing suit more than two years after the 

plaintiff’s cause of action accrued. Id. This court held the plaintiff and 

her husband, who had filed a claim for loss of consortium, had not 

established the intent element of equitable estoppel because the insurer’s 

error was unintentional: “[The plaintiffs] failed, however, to show any 

conduct or words from which can be implied an intent on the part of 

defendant or its insurer to induce plaintiffs to rely to their prejudice on 

those incorrect dates in determining the date of Mrs. Dierking’s injury for 

purposes of the statute of limitations.” Id. at 316. We ruled as a matter 
 18

of law that the plaintiffs’ claim was barred by the statute of limitations. 

Id. at 317; see also Meier, 454 N.W.2d at 580 (holding claim of equitable 

estoppel should not have been submitted to jury because there was no 

proof the defendant intended by its conduct or assertions to mislead the 

plaintiffs so they would not timely file suit). 

 Having reviewed the summary judgment record in this case, we 

reach the same conclusion here. Assuming for the moment that Lippolt’s 

admission of fault or his insurer’s payment of Hook’s property damage 

claim constitute an affirmative act by Lippolt or the State to conceal 

Lippolt’s volunteer status or Hook’s claim against the State, there is no 

evidence either defendant intended to conceal these facts or to induce the 

plaintiff to forgo investigation into the existence of additional defendants. 

The evidence shows Lippolt attached no importance to his volunteer 

status and did not mention the purpose of his trip to his own attorney 

until answering the plaintiff’s interrogatories more than two years after 

the accident. Lippolt did not realize until after the statute of limitations 

had expired that, because he was a department volunteer, the State Tort 

Claims Act was applicable to Hook’s claim and the State was vicariously 

liable. Lippolt could hardly have intended to conceal Hook’s claim 

against the State when he was unaware such a claim even existed. 

Similarly, the State itself did nothing to affirmatively mislead Hook or 

conceal her claim against the State, as the State had no notice of the 

accident and no contact with Hook until after the limitations period had 

run.4

 4Hook also complains of conduct by Lippolt’s attorney that occurred after the 

two-year statute of limitations had expired. This conduct cannot be a basis to estop the 

defendants from relying on the statute of limitations, however, because by the time this 

conduct occurred, Hook had already missed the filing deadline. See Temple v. Gorman, 

201 F. Supp. 2d 1238, 1242 (S.D. Fla. 2002) (holding defendants’ conduct after the 

statute of limitations expired “is irrelevant” to claim of equitable estoppel); Merrill v. W. 
 19

 A federal district court has rejected a claim of estoppel under 

similar facts. See Baker v. United States, 341 F. Supp. 494 (D. Md. 

1972). In Baker, the plaintiff was injured in a car accident with Smith, a 

federal employee. 341 F. Supp. at 495. Smith notified his personal 

insurer of the accident, and that insurer investigated the matter and 

communicated with the attorney representing the injured parties until it 

went into receivership. Id. Thereafter, Smith settled with one injured 

party, paying his own money. Id. No one connected with the matter—

parties, attorneys or insurer—realized that Smith was acting within the 

scope of his employment at the time of the accident. Id. Smith did not 

even report the accident to the government. Id. Eventually, Baker filed 

suit against Smith and only then, after the statute of limitations had 

expired, did Smith first learn that he was considered to be within the 

scope of his employment at the time of the accident. Id. The court 

thereafter granted summary judgment to the defendants on the basis of 

the statute of limitations. Id. at 496. Noting that result might seem 

“unfair, since no one realized until too late that Smith was in the course 

of his employment by the government at the time of the accident,” the 

court nonetheless concluded “no facts which would ordinarily amount to 

an estoppel against Smith, his insurer or the government have been 

shown.” Id. 

 Finally, Hook contends Lippolt’s insurer and attorney had a duty 

to investigate the circumstances of the accident and a duty to disclose to 

her that Lippolt was acting as a volunteer for the State. As we have 

discussed above, the duty of investigation was on Hook, not Lippolt. See 

 

Va. Dep’t of Health & Human Res., 632 S.E.2d 307, 318 (W. Va. 2006) (holding 

department’s delay in producing records requested by plaintiff was irrelevant to claim of 

fraudulent concealment in view of fact statute of limitations had expired before records 

were requested). 
 20

Gould, 905 F.2d at 745 (“The burden is on the plaintiff to discover the 

employment status of the tort-feasor and to bring suit within the 

applicable limitations period.”); Rios v. Montgomery County, 852 A.2d 

1005, 1022 (Md. Ct. Spec. App. 2004), aff’d, 872 A.2d 1, 10 (Md. 2005) 

(same). Additionally, a party’s silence cannot provide the basis for 

estoppel “absent a special duty to disclose.” Martinelle v. Bridgeport 

Roman Catholic Diocesan Corp., 196 F.3d 409, 424 (2d Cir. 1999); accord 

Alcorn v. Linke, 257 Iowa 630, 641, 133 N.W.2d 89, 96 (1965) (“ ‘Estoppel 

may arise from silence, as well as words, where there is a duty to speak, 

and the party on whom the duty rests has an opportunity to speak, and, 

knowing the circumstances, keeps silent.’ ” (quoting Helwig v. Fogelsong, 

166 Iowa 715, 724–25, 148 N.W. 990, 994 (1914))). We know of no 

authority that would impose an affirmative duty of disclosure on a 

tortfeasor prior to commencement of suit in the absence of any inquiry 

by the claimant. See Ray v. Keith, 859 So. 2d 995, 996–97 (Miss. 2003) 

(rejecting as a matter of law plaintiff’s claim of equitable estoppel based 

on defendant’s failure to reveal to plaintiff that defendant was acting 

within the course of employment at time of accident, notwithstanding 

defendant’s insurer’s payment of passengers’ claims). 

 We conclude the defendants have established there is no genuine 

issue of material fact with respect to Hook’s allegation of fraudulent 

concealment. Consequently, we hold as a matter of law the defendants 

are not estopped from asserting the statute of limitations as a defense to 

Hook’s claim. The plaintiff argues this result is inequitable and allows 

“unscrupulous defendants” to “thwart” the Tort Claims Act. But this 

case is not about unscrupulous defendants thwarting the Tort Claims 

Act. Such defendants will be estopped under the same principles we 

have applied today. This case is about an injured party and a tortfeasor 
 21

who were both unaware that a third party was liable for the injured 

party’s damages. Under these circumstances, it is not inequitable to 

impose the consequences of this unfortunate situation on the injured 

party who bore the duty of diligent investigation. 

VI. Waiver. 

 Hook argues on appeal that Lippolt waived the statute of 

limitations by failing to assert it in his initial answer to Hook’s petition in 

her first lawsuit. Although Lippolt did not allege a statute-of-limitations 

defense in his initial answer, the district court allowed him to amend his 

answer to add that defense. Rather than appealing this ruling, Hook 

dismissed her first lawsuit. In Hook’s second lawsuit, which is the one at 

issue in this appeal, Lippolt raised the statute of limitations as an 

affirmative defense in his initial answer. Given Hook’s abandonment of 

her first lawsuit and Lippolt’s prompt pleading of his limitations defense 

in this lawsuit, we question how Lippolt’s action in the first lawsuit could 

constitute a waiver in the current lawsuit. 

 Even if Lippolt’s conduct in the first lawsuit could be the basis for 

a waiver in this action, there is no evidence in the record that would 

support a finding of waiver. “ ‘[W]aiver is the intentional relinquishment 

of a known right.’ ” Huisman v. Miedema, 644 N.W.2d 321, 324 (Iowa 

2000) (quoting State v. Hallum, 606 N.W.2d 351, 354 (Iowa 2000)). At 

the time Lippolt filed his initial answer in the first lawsuit on April 9, 

2002, he had no statute-of-limitations defense. On that date, there was 

still time for Hook to file her administrative claim within the two-year 

statutory period. Consequently, Lippolt’s failure to allege the statute of 

limitations as an affirmative defense in his initial answer could not 

indicate the intentional relinquishment of that defense. Hook has failed, 
 22

therefore, to generate a genuine issue of material fact on her waiver 

argument. 

VII. Summary and Disposition.

 By virtue of section 669.24, Lippolt is not personally liable on the 

plaintiff’s negligence claim, and therefore, was not properly sued. In 

addition, the plaintiff’s lawsuit is barred by the statute of limitations as a 

matter of law. The plaintiff had actual knowledge of her claim against 

Lippolt and imputed knowledge of her claim against the State more than 

two years before she filed her administrative claim with the state appeal 

board. In addition, there is no evidence that would generate a genuine 

issue of material fact on the plaintiff’s claims of equitable estoppel and 

waiver. 

 We hold the district court erred in granting partial summary 

judgment to the plaintiff and overruling the defendants’ motions for 

summary judgment. Accordingly, we reverse the district court’s ruling 

and remand this case to the district court for entry of judgment in favor 

of the defendants on the plaintiff’s negligence claim and for dismissal of 

the State from this action. 

REVERSED AND REMANDED.

 All justices concur except Baker, J., who takes no part.