Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Whiteside County, the Hon. Robert W. Castendyck, Judge, presiding.
Rehearing Denied January 30, 1989
JUSTICE CUNNINGHAM delivered the opinion of the court. JUSTICE RYAN, specially Concurring. JUSTICE MILLER joins in this special concurrence.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CUNNINGHAM
In the circuit court of Whiteside County, on November 27, 1985, Janet D. Vaughn and Richard L. Vaughn filed a complaint against Wilbur P. Speaker, alleging that on December 2, 1983, Speaker negligently caused an automobile accident in which Janet D. Vaughn was injured, and requesting that the cause be tried by a jury. Wilbur P. Speaker had died on January 16, 1985, although plaintiffs were unaware of this fact when they filed the initial complaint. Plaintiffs first learned of the death on December 5, 1985, when the summons was returned to plaintiffs' attorneys without having been served on anyone; the returned summons indicated that Wilbur P. Speaker was deceased. Plaintiffs then, on December 23, 1985, filed a motion to correct misnomer, which was granted. On that same date, plaintiffs filed a complaint making the same allegations as in the initial complaint but naming as defendants "Adeline Speaker and Janet E. Prescott, as Co-Executors of the Estate of Wilbur P. Speaker." A summons was served on December 31, 1985. Defendants moved to dismiss, asserting that the applicable statute of limitations barred the action.
Plaintiffs filed a memorandum in opposition to the motion to dismiss, asserting upon various theories that, for statute of limitations purposes, the second complaint related back to the initial filing. Plaintiffs also asserted in their memorandum that defendants were estopped from asserting the statute of limitations as a defense. Plaintiffs contended (with a supporting affidavit) that the totality of various acts and omissions by the insurance adjuster induced them to believe both that Wilbur Speaker was still living and that the statute of limitations would not be asserted. Specifically, plaintiffs contended that the insurance adjuster conceded liability and made a settlement offer prior to Wilbur Speaker's death. Negotiations continued after the death and allegedly even after the date on which the initial complaint was filed. According to plaintiffs, neither defendants themselves nor the insurance adjuster informed them of the death. Plaintiffs' arguments were rejected and the complaint was dismissed.
The appellate court found that the action was not timely. (156 Ill. App. 3d 962.) Relying on Bavel v. Cavaness (1973), 12 Ill. App. 3d 633, the appellate court found that the initial action, filed against decedent, was a nullity and could not be amended. The appellate court further found that therefore the second complaint did not relate back to the date of the initial filing and was barred by the applicable statute of limitations. The appellate court also found, however, that an issue of fact existed as to whether defendants were estopped to assert the statute of limitations. The appellate court indicated that evidence suggested the possibility that defendants' insurance company may have lulled plaintiffs into a false sense of security, thereby causing them to delay the assertion of their rights.
Pursuant to Supreme Court Rule 315 (107 Ill. 2d R. 315), we granted plaintiffs' petition for leave to appeal regarding whether their complaint was timely filed, and we also granted defendants' petition for leave to appeal regarding whether the evidence raised the possibility that defendants are estopped to assert the statute of limitations.
We first address the issue of whether the complaint against the co-executors was timely filed. In order for us to find that the second complaint was timely filed, we must find that it related back to the date on which the first complaint was filed. The statute of limitations generally governing actions for personal injuries, set forth in section 13-202 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 13-202), is two years, and the second complaint was filed over two years from the date of the injury. Moreover, even assuming, arguendo, that section 13-209 of the Code is otherwise applicable, it is of no benefit to plaintiffs. Section 13-209 provides in part:
"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 or her executors or administrators after the expiration of the time limited for the commencement of the action, and within 6 months after the issuing of lettersof office." (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 13-209.)
With respect to decedent's estate, letters testamentary were issued on February 13, 1985, more than 10 months before the action was filed naming the co-executors as defendants. Thus, even if section 13 -- 209 were otherwise applicable, it would be of no assistance to plaintiffs here.
We also note that section 18-12 of the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. 110 1/2, par. 18-12), relied on by plaintiffs, is no basis for asserting that the second complaint was filed prior to the running of the statute of limitations. The language of section 18-12 (entitled "Limitations on payment of claims") clearly does not extend any otherwise applicable statute of limitations but instead imposes additional time constraints for making certain claims against a decedent's estate.
We must therefore determine whether the second complaint relates back (for statute of limitations purposes) to the initial complaint which named as defendant a deceased individual. For us to simply label the initial suit a "nullity" (see Wells v. Lueber (1976), 43 Ill. App. 3d 973; Reed v. Long (1970), 122 Ill. App. 2d 295) would be to answer this question in the negative without explanation. We must instead first examine certain Code provisions relied on by plaintiffs in the appellate court (provisions involving the relationship between the amendment of pleadings and the running of a statute of limitations) and determine whether any of those provisions apply.
The provisions upon which plaintiffs relied (in the alternative) during appeal from the circuit court include sections 2-1008(b), 2-616 and 2-401 of the Code (Ill. Rev. Stat. 1987, ch. 110, pars. 2-1008(b), 2-616, 2-401). We recognize that, as stated in section 1-106 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 1-106), these and other Code provisions are to be liberally construed. Even under a most liberal ...