APPEAL from the Circuit Court of Kane County; the Hon. DONALD
T. ANDERSON, Judge, presiding.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT:
The plaintiffs prosecute this appeal from an order entered June 5, 1970, by the Circuit Court of Kane County dismissing their complaint with prejudice and a subsequent order entered July 8, 1970, that denied their petition to vacate the earlier order.
The complaint, filed on August 18, 1969, alleged that Anna Rethy and Zoltan Rethey were injured on July 18, 1965, in an accident that occurred while they were passengers in an automobile operated by Olin W. Kriege. It further alleged that at the time of the accident Kriege was insured under a policy of insurance issued by Country Mutual Insurance Company that included benefits payable for medical expenses incurred by his passengers and that they had incurred such expenses in the total amount of $2123.43 for which judgment was sought. The complaint also stated that on June 5, 1967, the defendant "* * * offered to pay the sum of One Thousand Five Hundred ($1,500.00) Dollars to include the medical pay coverage, said offer was conditioned on plaintiffs accepting said sum to release the claim for personal injuries against said Olin W. Kriege."
On September 29, 1969, Country Mutual filed a motion to dismiss the complaint on the grounds that the suit was not commenced within the time provisions of the policy and was, therefore, barred. Relevant portions of the policy were attached to the motion that provided as follows:
"SECTION III MEDICAL PAYMENTS DEATH BENEFITS ACTION AGAINST THE COMPANY
No suit or action to collect benefits under this Section shall be sustainable in any court of law or equity unless commenced within twenty-four (24) months after the occurrence of the loss."
A hearing on that motion was held on May 22, 1970, and, as we have seen, the court dismissed the complaint on June 5. The petition to vacate alleged that at the hearing the "defendant's counsel pointed out that the offer of setlement pleaded in the plaintiff's complaint was not outside of the policy limitation period and therefore could not constitute a waiver." The petition then continued:
"6. That due to an inadvertent clerical error on the part of one of the attorneys for the plaintiff, the wrong settlement offer was pleaded in the plaintiff's complaint. Numerous written offers of settlement were made by the defendant including one contained in a letter dated January 30, 1969, more than 4 1/2 years after the occurrence of the loss, a copy of which letter is attached hereto and incorporated herein as Exhibit A".
That letter from attorneys for Country Mutual, was as follows:
Mr. Elliott M. Simon Attorney at Law Suite 900 33 North Dearborn Street Chicago, Illinois 60602
Re: Anna Rethy, et al v. Gerald Grider, et al No. 1178-66 Our File: R-338
We have now been instructed to offer the sum of $1,000.00 as settlement in full, including all medical pay, in the above matter on behalf of the defendant, Olin W. Kriege. Please take this ...