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03/31/94 DIANA MARKS v. RUEBEN H. DONNELLY

March 31, 1994

DIANA MARKS, PLAINTIFF-APPELLANT,
v.
RUEBEN H. DONNELLY, INC., ET. AL., DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE PADDY McNAMARA, JUDGE PRESIDING

Petition for Leave to Appeal Denied October 6, 1994.

Gordon, Murray, McNULTY

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

Nature of the Case

Plaintiff, Diana Marks, filed a complaint on August 18, 1989 in the circuit court of Cook County against defendants, Angelina Pinela and Rueben H. Donnelly, Inc. The complaint sought damages for personal injuries allegedly sustained as a result of the negligence of defendant, Angelina Pinela, an employee of defendant, Rueben H. Donnelly, Inc. (Donnelly). Plaintiff appeals from the trial court's order of February 11, 1992, granting Donnelly's motion to dismiss for failure to exercise reasonable diligence to obtain service.

Facts

The complaint alleges that plaintiff was injured on August 22, 1987, when she stepped out of her house and fell on telephone directories after defendant, Angelina Pinela, an employee of defendant Donnelly, rang her doorbell and left the directories in the doorway. The complaint, filed on August 18, 1989, shortly before the expiration of the two year statute of limitations period, alleges negligence against defendant Pinela and seeks recovery against defendant Donnelly under the theories of respondeat superior and negligent supervision. No summons was issued for either defendant at the time the complaint was filed.

On February 21, 1990, the action was dismissed for want of prosecution when plaintiff failed to appear at a progress call set before the trial Judge. Within 30 days thereafter, plaintiff filed a motion to vacate the dismissal. The record shows that notice of this motion was mailed on March 23, 1990, to Julie Haick, a claims adjuster for defendant's insurer, Hartford Insurance Company (hereinafter "Hartford"). However, plaintiff did not notice the motion for hearing until May 27, 1991, when such notice was delivered to defendant's attorney. On June 4, 1991, the court vacated the dismissal and ordered that alias summonses be issued to both defendants. The record discloses that Ms. Pinela was served with summons on June 28, 1991. The record also reflects a motion by plaintiff for voluntary dismissal as to defendant Pinela only. Apparently that motion was granted, although there is no such clear indication in the record. In any event, defendant Pinela is not involved in this appeal.

Defendant Donnelly was not served with summons until August 27, 1991. Thereafter, on September 18, 1991, Donnelly filed a motion to dismiss under Supreme Court Rule 103(b), 134 Ill. 2d R. 103(b), for lack of diligence in obtaining service of process. Affidavits in opposition to said motion were filed by plaintiff's attorneys, Edward Salomon and Jeffrey D. Hupert. With its reply, defendant filed the affidavits of Hartford employees, Thomas Thoma and Julie Haick (hereinafter "Thoma" and "Haick"). A hearing on the motion took place on February 11, 1992.

The affidavit of plaintiff's attorney, Edward Salomon (hereinafter "Salomon"), states that he mailed an "attorney's lien notice" to defendant Donnelly in September, 1987, shortly after the occurrence. Subsequently, he received a letter from Shirleen Shubert on behalf of Hartford, stating that Hartford was Donnelly's insurer and would defend it in this matter. Salomon's affidavit states, "Between October 1987 and August 1989 I spoke to Ms. Shurbert (sic) and then Mr. Thomas Toma (sic) of The Hartford on a few occasions regarding settlement of this matter." Salomon also stated:

"Prior to filing a complaint within the statutory period, I spoke with Mr. Toma (sic) about resolving the matter without litigation. He told me that although The Hartford wanted to settle the matter, that I should go ahead and file a complaint and send a copy directly to him without serving it through the sheriff's office. He indicated that mailing the complaint to him would constitute formal service on Donnelly. He said we could then actively discuss settlement."

Salomon further averred that on August 19, 1989, the day after the complaint was filed, he sent a copy of the complaint to Thoma along with a letter (hereinafter "the August 19, 1989 letter") which was referenced "Marks v. Rueben Donnelly" and which stated in pertinent part: "Per our agreement, this transmittal will constitute acceptance of service for the defendant and you will be calling to discuss resolution of this claim." The letter also contained a telephone number where Salomon could be reached.

Thoma's affidavit stated that he never spoke with Salomon until August 15, 1989, at which time Salomon said that he would mail to him a courtesy copy of the complaint which he was about to file along with an itemization of plaintiff's "specials." Thoma's affidavit denied that he received the August 19, 1989 letter and any of its alleged enclosures. He also denied agreeing that Hartford's receipt of the complaint would be acceptable in lieu of formal service of summons on Donnelly. Thoma averred that, after two unsuccessful attempts to contact Salomon by telephone, he closed his file on ...


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