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Myers v. Centralia Cartage Co.

OPINION FILED MARCH 26, 1981.

FRANK MYERS, SR., PLAINTIFF-APPELLANT,

v.

CENTRALIA CARTAGE CO., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. MYRON T. GOMBERG, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Frank Myers, Sr., appeals from an order dismissing his personal injury action brought against defendants, Centralia Cartage Company, Associated Truck Lines, Inc., *fn1 and Frank Vitaco. On appeal plaintiff contends the trial court erred in dismissing the action based on defendants' statute of limitations defense. Plaintiff asserts that a question of fact exists as to whether the conduct of defendants' insurer caused plaintiff to file his lawsuit after the statute of limitations had run.

We affirm.

On September 4, 1979, plaintiff filed a complaint for personal injuries allegedly resulting from a June 29, 1977, accident on the premises of Centralia Cartage Company (Centralia). The complaint charges that, on that date, Frank Vitaco, an employee of Centralia, negligently operated a forklift causing a "skid" to fall from the forklift and injure plaintiff.

Defendants filed a section 48 motion to dismiss (Ill. Rev. Stat. 1977, ch. 110, par. 48(1)(i)) asserting that plaintiff's action was barred by the applicable two year statute of limitations (Ill. Rev. Stat. 1977, ch. 83, par. 15). Plaintiff's response denied that the running of the statute of limitations barred the action because the conduct of defendants' insurer was responsible for plaintiff's late filing of his lawsuit. As a consequence of the actions of defendants' insurer, plaintiff contends that defendants should be estopped from asserting the statute of limitations defense.

Plaintiff's supporting affidavit set forth the pertinent facts as follows:

3. On [the day of the injury] I was taken to Midway Clinic for treatment by agents and servants of CENTRALIA CARTAGE CO.;

4. After approximately nine (9) days at Midway Clinic, a woman employee of the Clinic informed me that CARRIERS INSURANCE, my employer's insurance company, had approved my transfer to Holy Cross Hospital;

6. After I was discharged from Holy Cross approximately six (6) weeks after the accident, a man identifying himself as BILL WALLRAB from `compensation insurance' came to my house and took a statement from me regarding the accident, MR. WALLRAB led me to believe he was from my employer's insurance company;

8. The only statute of limitations I was ever advised of was through a woman at the Industrial Commission who said I had three (3) years from the date of my accident or two (2) years from the date of my last temporary check to bring a claim;

9. BILL WALLRAB called my house in about November, 1977; I called my employer's insurance company and was informed that he was not employed by them but by the insurance company for CENTRALIA CARTAGE CO.;

10. Representatives of CARRIERS INSURANCE advised me to negotiate with MR. WALLRAB because CARRIERS would have to approve any settlement and would protect me;

11. MR. WALLRAB would call my house and speak to my wife or myself approximately once every five (5) or six (6) weeks; each time he would inform us that certain papers and documents were needed, that he was in the process of gathering them, that approval and review was being ascertained through his home office in Texas and that he was attempting to settle the matter;

12. Each time MR. WALLRAB called, I would contact my employer's insurance company as its ...


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