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Mccue v. Colantoni

OPINION FILED JANUARY 31, 1980.

JOHN MCCUE, PLAINTIFF-APPELLANT,

v.

ANTHONY COLANTONI, ADM'R OF THE ESTATE OF BERNICE SCHULTZ, A/K/A BRONISLAWA SCHULTZ, DECEASED, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. PAUL F. ELWARD, Judge, presiding.

MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, John McCue, appeals from the dismissal of his action for personal injuries against defendant, Anthony Colantoni, as administrator of the estate of Bernice Schultz, deceased. The issues presented for review are: (1) whether plaintiff's lawsuit is barred because he failed to compel the issuance of letters of administration or pursue his claim against the estate of Bernice Schultz within 3 years of her death (Ill. Rev. Stat. 1973, ch. 3, par. 204; ch. 83, par. 20); (2) whether the substitution of the administrator of the estate of Bernice Schultz as a defendant in the second amended complaint related back to the original complaint filed within the period of limitations (Ill. Rev. Stat. 1975, ch. 110, par. 46(4)); and, (3) whether the doctrine of equitable estoppel precludes defendant from asserting the statute of limitations as a defense.

We affirm the trial court.

On March 29, 1973, plaintiff sustained injuries when he tripped and fell on a sidewalk on the premises at 4434 West Belmont Avenue, Chicago, Illinois. This property had been owned in joint tenancy by Walter and Bernice Schultz until Walter's death on March 14, 1968. Bernice thereafter owned the property as surviving tenant until her death on January 23, 1974; however, Walter and Bernice were listed as the record owners of the property at all times relevant to this appeal.

On March 17, 1975, plaintiff filed an action for negligence, naming Walter and Bernice Schultz as defendants and seeking to recover for personal injuries sustained in the fall. Summons was issued and substituted service was purportedly obtained on Edwin Schultz, their son. A special and limited appearance and motion to quash service of summons on behalf of these defendants was heard and granted on July 15, 1975. At that time, death certificates for both Walter and Bernice Schultz were presented to the court and served upon plaintiff's attorney.

On October 8, 1975, a first amended complaint was filed, again naming Walter and Bernice Schultz, and adding Al Bronislawa, as defendants. Summons was issued and, while attempting to obtain service on the additional defendant, the deputy sheriff was informed by Edwin Schultz that the name "Al Bronislawa" was an alias used by the deceased Walter Schultz.

On February 8, 1977, plaintiff petitioned the court to open an estate for Bernice Schultz, and letters of administration were issued appointing defendant Anthony Colantoni administrator of her estate. On February 25, 1977, Colantoni was substituted for Bernice Schultz as a defendant, and a second amended complaint was filed naming as defendant only Colantoni in his capacity as administrator. Service was obtained on this defendant on February 28, 1977.

On April 13, 1977, defendant filed a motion to dismiss the action based on section 19 of the Limitations Act (Ill. Rev. Stat. 1973, ch. 83, par. 20) and section 204 of the Probate Act (Ill. Rev. Stat. 1973, ch. 3, par. 204). Defendant also asserted that the original complaint, naming the deceased Bernice Schultz as a defendant, was a nullity. In his answer to defendant's motion to dismiss, plaintiff argued that section 204 did not bar an action to reach the proceeds of a liability insurance policy owned by Bernice Schultz, insofar as the policy was not an asset subject to administration under the Probate Act. Plaintiff suggested that because the liability insurance carrier had entered into negotiations with plaintiff before the death of Bernice Schultz, it should not be allowed to benefit from the statute of limitations defense. Further, plaintiff stated that the filing of the second amended complaint was equivalent to initiating an action against the administrator of the decedent's estate.

The trial court granted defendant's motion to dismiss on August 18, 1977, and entered an order striking plaintiff's complaint and dismissing the lawsuit. Plaintiff was granted leave to appeal pursuant to Supreme Court Rule 303(e) (Ill. Rev. Stat. 1977, ch. 110A, par. 303(e)).

OPINION

I

Section 14 of the Limitations Act provides that a personal injury action must be commenced within 2 years after the cause of action arose (Ill. Rev. Stat. 1973, ch. 83, par. 15). Where, however, the person against whom the action is to be brought dies before the 2-year period expires, section 19 of the Limitations Act governs the period within which an action may be brought against an administrator after the expiration of the time provided by section 14. In pertinent part, section 19 states:

"If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred, an action may be commenced against his executors or administrators after the expiration of the time limited for the commencement of the action, and within 6 months after the issuing of letters testamentary or of administration." (Emphasis added.) Ill. Rev. Stat. 1973, ch. 83, par. 20.

• 1 The phrase "and is not otherwise barred" in section 19 has been construed to refer to the companion provision in section 204 of the Probate Act (Ill. Rev. Stat. 1973, ch. 3, par. 204, now Ill. Rev. Stat. 1977, ch. 110 1/2, par. 18-12), rather than the other sections of the Limitations Act. (Rivera v. Taylor (1975), 61 Ill.2d 406, 336 N.E.2d 481; see Roberts v. Tunnell (1897), 165 Ill. 631, 46 N.E. ...


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