Appeal from the Circuit Court of Jo Daviess County, Fifteenth
Judicial Circuit; the Hon. HELEN RUTKOWSKI, Judge, presiding.
JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 13, 1970.
This is an appeal from a judgment order entered after trial upon the issues raised by a motion to dismiss the complaint pursuant to section 48 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 48(1) (e)). The defense asserts that counts I and II of the complaint are barred by the two-year statute of limitations applicable to personal injury claims.
The cause of action in question arose on December 29, 1963. Suit was instituted on January 26, 1966 28 days after the two-year statute of limitations had expired. A motion to dismiss counts I and II of the complaint was filed by the defendant. Thereafter, affidavits in support of the motion were filed by two insurance representatives for the defendant's insurer. Counteraffidavits were filed by Lois Chapman, Donald Chapman, and their attorney. On April 4, 1967, the trial court denied the motion to dismiss counts I and II, without prejudice, with the observation that a fact question was raised by the affidavits and counteraffidavits.
On July 28, 1969, the motion to dismiss counts I and II were heard before the court, all parties having waived a jury. After hearing the testimony, the court filed an order on August 1, 1969, finding that the issue in dispute was whether or not the defendant's insurance carrier, Country Mutual Insurance Company (Company), had waived the right to plead the statute of limitations. The court found that the defense of the statute of limitations was available to the defendants and that the insurer was not estopped to assert the statute of limitations. Counts I and II were dismissed and barred from further action.
It is not necessary to detail all of the evidence presented for our determination of the case. Briefly, the auto accident in question occurred on December 29, 1963. The following day, adjuster Gaunt of the Company, spoke with the plaintiffs and the insured defendant. In June of 1964, he called upon the plaintiffs and was referred to their attorney. Thereafter he contacted the plaintiff's attorney on a more or less two-month schedule. In February of 1965, plaintiff's attorney, Gaunt, and Claim Supervisor Burke, met in the attorney's office. The attorney had no medical bills or medical reports in regard to Mrs. Chapman's claim but indicated that he intended to file suit. After some discussion, the Company made an offer of $2,000 for the bodily injury claim of Mrs. Chapman and the property damage claim of Mr. Chapman. The Company was told that the clients were to be contacted and they would be advised whether or not the $2,000 offer would be accepted. In May of 1965, the attorney contacted Gaunt and rejected the offer.
In August of 1965, Gaunt testified, he had another conversation with the attorney. The attorney indicated that the client wanted him to go ahead and start suit. The adjuster stated that if he could get the bills, medical reports and a medical examination, he would like to try and settle the case. If Mrs. Chapman agreed to the medical examination, he was to make the appointment. In November of 1965, the adjuster testified, he was told that Mrs. Chapman would not agree to a medical examination, but that the attorney would talk with her again to see if she would agree. The next contact he had with the attorney was sometime in January of 1966, after the statute had run. At that time the adjuster was living in Pekin, Illinois, having been transferred from Jo Daviess County in December of 1965.
The attorney for the Chapmans testified that on December 8, 1965, he met with Gaunt in the attorney's office and agreed that he would provide his client for a medical examination and that Gaunt was to make all of the arrangements. The adjuster was to advise the attorney of the time and date of the appointment, but he never called the attorney again.
The attorney testified that on January 12, 1966, he made a call to Gaunt's former home in Jo Daviess County and was informed that he had been transferred to Pekin, Illinois. On that date he contacted the adjuster at his home in Pekin, and was told by the adjuster that he no longer had authority to handle the file, but referred him to the Company's adjuster who had succeeded him in Jo Daviess County. On January 17, 1966, the attorney talked with Supervisor Burke, who advised him that the Company would not waive the statute of limitations defense. The substance of the conversation between the attorney and Burke is disputed. The attorney testified that Burke told him that the Company was no longer interested in making any appointment with the doctor to see Mrs. Chapman and that he was going to make an offer of $575 based upon the fact that there was $350 in property damage to Mr. Chapman's automobile and an estimated $225 in medical bills which had been incurred treating Mrs. Chapman. The attorney rejected this offer, allegedly, but Burke was alleged to have told him that he would send him the papers anyway. On January 17, 1966, Burke forwarded a letter enclosing general releases for Mr. and Mrs. Chapman in the sum of $575.
Burke's version of the January, 1966, telephone conversation was that he returned the call of the attorney, who advised him that his clients were now willing to accept the $2,000 previously offered. Burke stated that the statute of limitations had run, to which the attorney replied, "You wouldn't hide behind the statute, would you?" Burke replied that he would, but in a spirit of compromise he would pay the property damage, upon which the statute had not run, in the amount of $350 and an estimated sum of $225 for Mrs. Chapman's medical bills. Thereupon, the releases in the sum of $575 were forwarded to the attorney on January 17, 1966.
Plaintiffs rely upon defendant's exhibit #2 which is a memo to Burke from Gaunt, dated November 24, 1965, produced from the file of the Company, which states:
"Today I saw attorney . . . in regards to Lois Chapman. He advised he has not seen her for a while, but she's still doctoring and complaining.
"I asked him to see if she would submit to an independent medical exam by Dr. Kernwein at Rockford. He advises he would ask her and let me know. I will then make ...