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03/08/94 TAMMIE R. PARKER v. LORI M. PISKUR

March 8, 1994

TAMMIE R. PARKER, INDIVIDUALLY, AND AS MOTHER AND NEXT FRIEND OF JAMES PARKER, A MINOR, PLAINTIFFS-APPELLANTS,
v.
LORI M. PISKUR, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the Twelfth Judicial Circuit, Will County, Illinois. Honorable Herman Haase, Judge, Presiding

Petition for Leave to Appeal Denied October 6, 1994.

Present - Honorable Peg Breslin, Justice, Honorable Tom M. Lytton, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Lytton

JUSTICE LYTTON delivered the opinion of the court:

Plaintiffs Tammie Parker and her minor son, James Parker, filed a personal injury complaint against defendant Lori Piskur. They appeal from the dismissal of their action for want of due diligence in service of process as required by Supreme Court Rule 103(b) (134 Ill. 2d R. 103). We affirm the dismissal and modify the order as to James.

This litigation arose out of the collision of defendant's automobile with the rear end of plaintiffs' automobile while both vehicles were proceeding north on Route 59 in DuPage County on December 21, 1988. Both Tammie Parker, the driver, and her son James, a passenger, claimed personal injury as a result of the collision. Plaintiffs filed their complaint in Will County on December 18, 1990, a few days before the expiration of the two-year statute of limitations applicable to tort claims, but no summons was issued at that time.

Defendant's insurer, Western States Insurance Company, through its adjustor Lavonne D. Ohlson, investigated the accident and determined that liability existed. Ohlson negotiated a settlement with plaintiffs' attorney whereby Western States would pay $8,650 for the injury claim of Tammie Parker and $1,000 for that of James Parker. On January 28, 1991, Ohlson sent the attorney releases for plaintiffs to sign and requested dismissal of the suit.

Plaintiffs refused to sign the releases and instead retained different counsel to represent them. According to the circuit court docket, nothing further occurred until June 19, 1992, when plaintiffs' new attorney filed an appearance as counsel for plaintiffs. The new attorney attempted to locate defendant first, at the Minooka address defendant had given the police officer who investigated the accident, and then, upon learning that defendant no longer resided there, by contacting the Illinois Secretary of State and learning that she had surrendered her Illinois drivers' license to California on February 8, 1990. The Minooka postmaster had no change of address for defendant.

Subsequently, plaintiffs' attorney learned that defendant had resided in Costa Mesa, California, but had moved with no forwarding address. He also obtained a second California address for defendant, but she no longer lived there either and, again, left no forwarding address. Plaintiffs served a subpoena for deposition on defendant's father, Louis Piskur, on January 7, 1993.

Defendant then filed a limited and special appearance with a motion to quash the subpoena for deposition on the ground that plaintiffs had not obtained leave of court as required by Supreme Court Rule 201(d). Following a hearing, the trial court entered an order striking the motion to quash and noting that plaintiffs had withdrawn the subpoena. Plaintiffs then filed a motion for leave to take the deposition, and on January 29, 1993, the court granted the motion.

In the course of the deposition, defendant's father said that defendant had been a student in Costa Mesa, California, at the time of the accident. He disclosed her current address in Washington, D.C., where he said she is a student at American University. Summons was served on defendant in Washington on April 12, 1993.

On May 7, 1993, defendant filed the Rule 103(b) motion to dismiss the complaint along with a special and limited appearance. After hearing evidence and arguments of counsel, the trial court granted the motion.

LACK OF DILIGENCE

The primary issue is whether the trial court abused its discretion in finding that plaintiffs did not use reasonable diligence in serving process on defendant. The rationale for Rule 103(b) was explained in O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 282, 492 ...


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