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Loughran v. A. & M. Moving & Storage

JANUARY 14, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. NICHOLAS J. BUA, Judge, presiding. MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

This record presents two questions for our determination:

1. In a suit for personal injuries and property damage, does passage of the limitation period bar the action as regards a newly impleaded defendant or may the cause proceed under section 46(4) of the Civil Practice Act? Ill. Rev. Stat. 1971, ch. 110, par. 46(4).

2. Is the impleaded defendant estopped from pleading the statute of limitations by the conduct of its insurer?

Ardell Loughran (plaintiff) appeals from an order granting the motion of the impleaded defendant, United Van Lines (United) to dismiss her amended complaint. The order includes proper certification under Supreme Court Rule 304(a). (Ill. Rev. Stat. 1971, ch. 110A, par. 304(a).) The trial court sustained a motion made by United to strike plaintiff's amended complaint on the ground of limitations. The trial court passed on this motion on the basis of the affidavits in support thereof, counter-affidavits and exhibits appended thereto. No request was made by either party for the presentation of testimony.

The factual background of the above inquiries is best presented in chronological fashion:

July 30, 1967: Plaintiff was driving her automobile in Chicago. There was a collision with a motor truck as a result of which she made a claim for personal injuries and for damage to the automobile.

April 1, 1968: Plaintiff's attorney wrote to Crawford & Co., apparently a firm of adjusters, enclosing medical information and items of special damages. The letter had reference to plaintiff's claim "vs. A & M Moving & Storage and United Van Lines."

June 7, 1968: Thomas J. McCoy, acting for the St. Paul Insurance Companies, wrote a letter to plaintiff's counsel referring to a conversation between the writer and one of plaintiff's attorneys in which the insurance company had made an offer of settlement of $1750. Releases were enclosed for signature of plaintiff as to her claim against A & M. The releasee was described as "A & M Moving & Storage Co., Inc. (Driver — Arnold Vick, Sr.)." Also, A & M was referred to in the letter as the insured. This letter also stated that if plaintiff's attorneys preferred to litigate the matter the releases could be disregarded and the file would be sent to defense counsel.

Some time after the occurrence, one of plaintiff's counsel was contacted by a person only identified as "Mr. Grady." Grady advised him orally that St. Paul Fire and Marine Insurance Company insured A & M and United as well. Grady also told the attorney that the van involved in the collision with plaintiff's automobile was "operated" by United but "control and ownership" was through A & M. The affidavit of plaintiff's counsel stating these facts had appended thereto a copy of counsel's file jacket summarizing the gist of this conversation. It should also be noted that a counter-affidavit was filed by defendant which stated that there was no person named Grady affiliated with the St. Paul Fire and Marine Insurance Company but that Mr. Grady "is related to Continental National American Group" which in turn was not related to St. Paul.

August 2, 1968: Plaintiff filed suit against A & M in Circuit Court. Count I of the complaint alleged various acts of negligence and claimed damages for personal injuries. Count II alleged damage to the plaintiff's automobile.

From this point on, there was additional correspondence between the parties. Thomas J. McCoy wrote letters to plaintiff's attorney on August 27, 1968, October 16, 1968 and October 24, 1968. H.F. Wilke, claim-loss supervisor of the St. Paul Fire and Marine Insurance Company, wrote letters to plaintiff's counsel on January 17, 1969 and on March 5, 1969. Another letter from the company was written to the attorneys on October 2, 1969. H.F. Wilke wrote another letter to the attorneys on December 12, 1969.

Replies to this correspondence were sent to the insurance company by plaintiff's attorneys on October 18, 1968, January 14, 1969, April 3, 1969 and October 3, 1969. This entire series of letters need not be detailed. They may be summarized by stating that the insurance carrier was offered an examination of plaintiff by their own physician and agreements were constantly made to extend the time for the filing of pleadings in the pending case by the insurance carrier in behalf of A & M. Supplemental medical information was to be sent to the insurance carrier and the carrier was also advised that plaintiff's injuries were more serious than first considered.

March 5, 1970: H.F. Wilke wrote to plaintiff's attorneys advising that the insurer was unable to accept further extension of time to answer and stated that, because an impasse toward possible negotiation had been reached, the matter was being referred to attorneys for the insurer to handle to a conclusion.

March 18, 1970: A & M filed its answer to plaintiff's complaint. This answer admits that on July 30, 1967, A & M "owned a certain motor truck" but denied the remaining allegations of paragraph 1 of the complaint. The complaint did not allege that A & M owned a motor truck but stated that it, "acting as ...

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