APPEAL from the Circuit Court of Cook County; the Hon. PAUL F.
ELWARD, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 9, 1975.
This is an appeal from an order of the circuit court of Cook County dismissing all four counts of plaintiff's complaint which arose out of an alleged rear end collision that occurred on July 13, 1969. The complaint was filed on November 3, 1971, approximately 3 1/2 months after the 2-year statute of limitations had run. (Ill. Rev. Stat. 1973, ch. 83, par. 15.) Plaintiff alleged, inter alia, that the defendants were estopped to assert the statute of limitations as a defense and at a hearing in the trial court on defendant's motion for a preliminary resolution of the issue of estoppel the trial court ruled that the defendants were not estopped to assert the statute of limitations as a defense and dismissed all four counts of the complaint.
Order vacated and cause remanded with directions.
Plaintiff contends (1) that the trial court erred in dismissing Count I of the complaint because the issue of estoppel involved a question of fact which should have been decided by a trier of fact; (2) that the trial court compounded this error by assuming that since Count I had to be dismissed, the remaining Counts, II, III, and IV, had to be dismissed as well.
Defendants, on the other hand, contend (1) the trial court actually decided the factual questions relevant to the issue of estoppel and that since the plaintiff waived his right to a jury trial, the appropriate standard for review is whether or not the trial court's finding was "plainly erroneous and contrary to the manifest weight of the evidence"; (2) even if the plaintiff had not waived his right to a jury trial, it would nonetheless be proper under the evidence to sustain the findings of the trial court; (3) the trial court's dismissal of all counts of the plaintiff's complaint was necessary and proper; and (4) the order of the trial court is consistent with and implements public policy and public interest.
The record reveals the following relevant facts: On July 13, 1969, defendant Hoover collided with the rear end of plaintiff's vehicle which was stopped at an intersection in the Village of South Chicago Heights, Cook County, Illinois. Plaintiff filed his complaint 3 1/2 months after the statute of limitations had run and did not file a jury demand. Defendant then filed an appearance and jury demand. Subsequently, after plaintiff's complaint was twice dismissed with leave to file an amended complaint, plaintiff filed a second amended complaint of four counts alleging (1) negligence against the defendant driver, Hoover; (2) a contract implied in fact between Hoover's insurer Aetna Life and Casualty Insurance Company (hereinafter referred to as Aetna); (3) fraudulent misrepresentation against Aetna's agent, Friedman, that he had actual authority to waive the statute of limitations; (4) fraudulent misrepresentation against Aetna and that Aetna clothed Friedman with apparent authority to waive the statute of limitations. Defendants then answered the second amended complaint with a pleading captioned "Answer and Affirmative Defense to Count I of Second Amended Complaint; Motion for Preliminary Determination of Issue of Estoppel; and Motion to Strike and Dismiss Counts II, III and IV of Second Amended Complaint." Subsequently, this matter came up on the regular summer pretrial call of Judge David Canel on July 25, 1973. On that date, plaintiff filed a petition for a change of venue which was orally denied and the matter was continued to August 2, 1973 for a pretrial conference. On August 2, 1973, it appears that Judge Canel granted the change of venue by transferring the file to Judge Elward instead of sending the file to the assignment judge for reassignment.
The change of venue having thus been granted, the parties appeared before Judge Elward and counsel for plaintiff confessed that he was confused as to what was about to happen at court that day, and that he did not know if the parties were at court for a settlement conference or for hearing evidence. Counsel for plaintiff informed the court that plaintiff was present, and defense counsel stated that a claims representative of the defendant insurance company was present. Defense counsel also emphasized that defendant had not waived their jury demand. The trial court then proceeded to define the issue before it as one of determining whether or not there were enough facts on the issue of estoppel to send the case to a jury. Clearly indicating the procedure to be followed, the trial court then stated that if it found enough facts on the issue of estoppel to send to a jury the case would proceed to a double-jury trial with one jury to decide the issue of estoppel and the other jury to decide the issues of damages and negligence. (See Kinsey v. Thompson (1963), 44 Ill. App.2d 304, 194 N.E.2d 565.) If, on the other hand, the trial court did not find enough facts to support the claim of estoppel, the entire case was to be dismissed. After thus clearly defining the issue to be decided and outlining the procedure to be followed, the trial court heard the plaintiff's testimony and that of the insurance agent Mr. Friedman and issued the following order:
"The Court having heard and considered all evidence adduced by plaintiff in support of his claim of estoppel, and the Court being advised by plaintiff's attorney that plaintiff had no other or further evidence to offer upon said issue; and the Court having heard and considered further arguments by counsel, and being fully advised in the premises;
This Court is of the opinion and FINDS, that plaintiff failed to adduce any evidence sufficient to justify or support a finding that the conduct of any defendant herein constituted anything more than investigation of plaintiff's claim and negotiations for a settlement; and
This Court is further of the opinion, and FINDS, that plaintiff failed to adduce any evidence sufficient to justify or support a finding that the conduct of any defendant herein constituted a waiver of the statute of limitations, or a finding that the conduct of any defendant induced a reasonable belief on plaintiff's part that the statute of limitations would be waived; and, accordingly, This Court FINDS that the defendants are not estopped from asserting the bar of the statute of limitations * * *."
The trial court then ordered all four counts of the plaintiff's complaint dismissed.
The plaintiff in his deposition and testimony at the hearing indicated that the accident was a rear-end collision in which the insurance company had never denied responsibility. Plaintiff further testified that the insurance company had paid for the damage to the car and that Aetna's agent, Mr. Friedman, had agreed in essence to reach an agreement as to the damages for personal injuries. Plaintiff further testified that Mr. Friedman specifically told the plaintiff that he did not need an attorney and the plaintiff, in fact, did not retain an attorney until after the statute of limitations had run. Both plaintiff and defendants agreed that the last communication between plaintiff and the insurance agent took place approximately 3 months before the statute of limitations was to run. Plaintiff testified that at this last conversation plaintiff told Mr. Friedman that the 2-year limit was approaching and in response Mr. Friedman told the plaintiff that he need not worry about "deadlines or technicalities." Plaintiff testified that he tried to call Mr. Friedman shortly before the statute was to run, but was informed that Mr. Friedman was on vacation.
In their answer to Count I of the complaint, defendants state that they undertook only to investigate and evaluate plaintiff's claim with a view toward possible negotiation and settlement and deny that any conversations of any kind concerning retention of counsel by plaintiff ever took place. Mr. Friedman, the insurance agent, ...