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11/15/88 Marilyn L. Peterson, v. Schiek Motor Express Et Al

November 15, 1988

MARILYN L. PETERSON, PLAINTIFF-APPELLANT

v.

SCHIEK MOTOR EXPRESS ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

530 N.E.2d 1166, 176 Ill. App. 3d 276, 125 Ill. Dec. 757 1988.IL.1657

Appeal from the Circuit Court of Will County; the Hon. Thomas M. Ewert, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE STOUDER delivered the opinion of the court. BARRY and WOMBACHER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

The plaintiff, Marilyn Peterson, filed a complaint against the defendants, Schiek Motor Express and Donald Carter, seeking to recover damages for injuries she received in an automobile accident. The defendants moved to dismiss on the ground that the cause of action was barred by the statute of limitations. The trial Judge dismissed the complaint with prejudice. The plaintiff appeals, and we reverse.

According to the complaint, on October 3, 1983, the plaintiff and Donald Carter, who was driving as an agent of Schiek Motor Express, were involved in an automobile accident. The plaintiff sustained personal injuries as well as automobile damage.

The plaintiff's attorney alleged in an affidavit that on October 5, 1983, the defendant's insurance carrier, Providence Washington Insurance Company (Providence), asked the plaintiff to complete some insurance forms regarding the accident. On October 12, 1983, the plaintiff mailed the forms to Robert Baynes, Jr., a claims adjustor for Providence.

On October 27, 1983, Providence mailed the plaintiff a check for $2,925 for damage to her automobile. An accompanying letter stated that the check was "in satisfaction of all property damage claims." The plaintiff endorsed the check "in partial payment of property damage claim" and received payment.

On November 16, 1983, Providence mailed a second check "in satisfaction of full and final settlement of any and all claims." Five days later, Baynes assured the plaintiff that the checks were only for personal property damages and that he would send a letter to that effect. He failed to send such a letter, however, and the plaintiff endorsed the check "in full payment of all property damage."

On November 23, 1983, Carter pleaded guilty to the offense of traveling too fast for conditions. The charge arose out of his accident with the plaintiff.

Between October 3, 1983, and August 1, 1984, Baynes phoned the plaintiff's attorney each month and asked about the plaintiff's personal injuries and her medical treatment. In the course of these conversations, Baynes told the attorney that settlement would not be made until the plaintiff was released from medical care. He also stated that litigation would not be necessary, especially in view of the amicable settlement of the personal property damage claim.

On July 30, 1984, Providence sent the plaintiff a letter requesting an authorization for the release of medical information. The letter also requested that the plaintiff's attorney contact Providence to determine how close the parties were to resolution of the case and asked for information about the plaintiff's medical care and special damages.

On July 31, 1986, the plaintiff was released from medical care for her injuries. On September 29, 1986, the plaintiff filed this personal ...


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