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05/06/94 ESTELLA WEBB v. AMBULANCE SERVICE

May 6, 1994

ESTELLA WEBB, PLAINTIFF-APPELLANT,
v.
AMBULANCE SERVICE CORPORATION, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE ARTHUR A. SULLIVAN, JUDGE PRESIDING

Cousins, Jr., Murray, Gordon

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS, JR. delivered the opinion of the court:

Estella Webb (plaintiff) appeals the trial court's entry of summary judgment rendered in favor of Ambulance Service Corporation (defendant). In particular, plaintiff takes issue with the trial court's denial of her motion to leave to amend her complaint under sections 2-616 (Ill. Rev. Stat., 1987, ch. 110, par. 2-616) (now 735 ILCS 5/2-616(d) (West 1992)) and 2-401 (Ill. Rev. Stat. 1987, ch. 110, par. 2-401) (now 735 ILCS 5/2-401(b) (West 1992)) of the Illinois Code of Civil Procedure to name A.S.C Medi-Car Services, Inc. (Medi-Car) as the proper defendant.

The issues presented for review are (1) whether the trial court's entry of summary judgment was proper, (2) whether the trial court erred by denying plaintiff's motion to amend her complaint, and (3) whether the proper defendant's name should have been corrected as a misnomer.

We affirm.

BACKGROUND

On August 22, 1988, plaintiff sustained personal injuries when she fell out of a wheel chair while being transported in an ambulatory vehicle which had been dispatched by Medi-Car. On April 16, 1990, plaintiff filed her complaint which solely named defendant as the negligent party responsible for her injuries. Summons also issued on April 16, 1990. However, the sheriff's office was unable to serve defendant through its registered agent, Maurice Alban, on April 25, 27, and 30 and on May 2, 4, 8 and 9. Summons issued again on June 11, 1990. On July 9, 1990, the sheriff attempted service anew, but the summons was returned as "not listed." Alias summons issued on August 13, 1990, for Max Rabin. The sheriff, after attempting service on August 23 and 25, finally effected such on August 27, 1990, five days after the tolling of the statute of limitations.

When no response or pleading was filed by defendant, plaintiff obtained a default judgment on October 5, 1990. On October 24, 1990, defendant filed its appearance and motion to vacate the default judgment which the trial court vacated. Two days later, defendant filed an answer to plaintiff's complaint.

On February 28, 1991, defendant's counsel wrote a letter to plaintiff's counsel indicating that Sanjuana Jenny Leal was the driver involved in the incident. The letter also indicated that Leal was an ASC Medi-Car employee and that the two companies were separate.

Likewise, on March 28, 1991, defendant filed its answers to the interrogatories and denied that it owned the vehicle involved in the incident and stated that it was "believed that the vehicle allegedly involved was owned by ASC Medi-Car Service, Inc."

On May 17, 1991, defendant moved for leave to file instanter its motion for summary judgment. The trial court entered an order granting such leave. Defendant filed its summary judgment memorandum on June 3, 1991.

On February 3, 1992, plaintiff filed a notice of deposition for Steve Rabin, defendant's CEO. On March 13, 1992, plaintiff sought leave to file an amended complaint and also filed a response to defendant's motion for summary judgment in which she sought leave to file an amended complaint maintaining that hers was a case of corporate misnomer. Plaintiff argued that defendant had waived any defense as to misnomer by answering her complaint, which made no assertion of corporate misnomer and by continuing to defend her case for over a year without ever having raised the issue of corporate misnomer. In the alternative, plaintiff asserted that she should be permitted to add Medi-Car as a new party because she inadvertently failed to correct the corporation's name.

On June 26, 1992, the trial court granted summary judgment for defendant and denied plaintiff's motion for leave to amend her complaint under section 2-616 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-616) (now 735 ILCS 5/2-401(b) (West 1992)) naming an additional defendant, stating that:

"The focus of inquiry in the Appellate Court cases on the issue of 2-616(d)(4) is 'whether an agent of the right defendant was served prior to the expiration of the statute of limitations.' In this case the agent of the 'right defendant' was served five days after expiration of the limitations. Although the result is harsh, this Court is required to follow established law on the issue. Accordingly, plaintiff is denied leave to file an amended complaint naming A.S.C. Medi-Car, Inc."

Plaintiff appealed.

I.

Plaintiff contends that the trial court's entry of summary judgment in defendant's favor was improper. We disagree.

Appellate courts apply a de novo standard when reviewing summary judgment rulings. Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 180 Ill. Dec. 691.

While use of summary judgment is encouraged under Illinois law to aid the expeditious Disposition of a lawsuit, Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867, 95 Ill. Dec. 305, it is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt. Quality Lighting, ...


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