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01/13/95 WARREN E. TISCHER v. DESMOND WARREN JORDAN

January 13, 1995

WARREN E. TISCHER, PLAINTIFF-APPELLANT
v.
DESMOND WARREN JORDAN, INDIVIDUALLY AND ON BEHALF OF THOSE UNDERWRITERS AT LLOYD'S LONDON SIGNATORY TO CERTIFICATE NO. 30007; AND JOHN E. BARRETT AND PHILIP ALAN REGER, INDIVIDUALLY AND D/B/A REGER INSURANCE AGENCY, DEFENDANTS-APPELLEES



Appeal from the Circuit Court of Cook County. The Honorable Willard J. Lassers, Judge Presiding.

The Honorable Justice Zwick delivered the opinion of the court: McNAMARA, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Zwick

The Honorable Justice ZWICK delivered the opinion of the court:

Plaintiff, Warren E. Tischer, instituted this action seeking recovery for the theft of his truck under a policy of insurance issued by defendants in June 1983. The trial court dismissed the complaint with prejudice pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)) for lack of diligence in effecting service of process upon the defendants. Plaintiff has appealed the dismissal of his claims, contending that the trial court abused its discretion in granting defendants' motion to dismiss under Rule 103(b).

The record indicates that on June 6, 1983, plaintiff Purchased a 1979 GMC Astro semi-truck for use as an over-the-road operator. On June 7, 1983, plaintiff obtained property damage and theft insurance coverage on the truck from defendants John E. Barrett and Philip Alan Reger, who were doing business as Reger Insurance Agency. According to plaintiff, he continued to pay his premiums and relied upon representations made by Barrett and Reger that his insurance coverage was in effect through the 1985-86 term. Plaintiff's truck was stolen on or about September 5, 1985, and he notified the defendant insurance agents of the theft. At that time, defendant Barrett informed plaintiff that his insurance coverage had been cancelled. Based upon the cancellation of the policy prior to the theft of plaintiff's truck, the defendants denied coverage and liability for the loss. Plaintiff thereafter brought suit seeking recovery under the policy.

Plaintiff's original complaint was filed in the Chancery Division on April 2, 1986. This five-count complaint requested a declaratory judgment of plaintiff's rights under the policy issued by Jordan and the Underwriters. The complaint also sought compensatory damages from Barrett and Reger for the amount of the policy limits as well as other relief occasioned by the denial of coverage. All of the defendants were timely served on or about April 9, 1986, and appeared through counsel. Various motions to dismiss were filed by defendants, and substantial discovery was conducted by plaintiff and by defendant Underwriters. On May 21, 1987, plaintiff filed an amended complaint, and the cause was transferred to the Law Division.

On November 3, 1987, the trial court entered an order allowing plaintiff leave to file a second amended complaint by December 8, 1987, in order to join as necessary parties the Bank of Villa Park, who had provided the installment loan for the purchase of the truck, and plaintiff's father, who had co-signed the note. Plaintiff failed to file this second amended complaint.

On June 16, 1988, the court dismissed the amended complaint for failure to join these necessary parties, but plaintiff was granted 28 days to file a second amended complaint. Plaintiff again failed to file a second amended complaint. No action was taken in the case by plaintiff or defendants from June 1988 until August 1991. On August 28, 1991, the pre-trial mediation court entered an order which stated that the action had been dismissed three years earlier on June 16, 1988.

On February 4, 1992, plaintiff again sought leave to file a second amended complaint. After a hearing on February 20, 1992, the trial court dismissed the cause for want of prosecution and held that the dismissal was effective as of July 5, 1991. At that time, the trial court specifically stated that the dismissal was not a sanction under Supreme Court Rule 219(c) (134 Ill. 2d R. 219(c)) for failure to comply with the court's order regarding the filing of a second amended complaint. The court also noted that under section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 1992)), Plaintiff had an absolute right to commence a new action within one year after a dismissal for want of prosecution.

The cause was refiled on July 2, 1992, pursuant to section 13-217 of the Code of Civil Procedure. Plaintiff's five-count complaint was substantially identical to the complaint filed in the original action, and summons issued against all defendants on July 2, 1992. When plaintiff's counsel arrived at the sheriff's office, he discovered a long line and opted not to place the summonses for service at that time. Rather, counsel returned to his office, intending to forward the summonses to a clerking service for placement with the sheriff's office. Although the summonses were neither forwarded to the clerking service nor placed with the sheriff's office, plaintiff's counsel made a diary entry for a service check in mid-August 1992. On that date, counsel checked the court file, but found no summons or return of service by the sheriff. Counsel then made another diary entry for a date in early September for a second service check. In accordance with this diary entry, counsel again checked the court file and found no summons or return of service. Counsel then inspected his file in early September 1992 and discovered only photocopies of the original summonses. Upon further investigation, however, plaintiff's attorney realized that he had never placed the summonses with the sheriff for service.

On December 31, 1992, plaintiff's counsel caused alias summonses to issue against all defendants and placed these summonses with the sheriff for service. Defendant Reger was served on January 7, 1993, and defendant Jordan was served individually and on behalf of Underwriters on January 8, 1993. Plaintiff's counsel was unable to locate defendant Barrett. Consequently, he was never served and is not a party to this appeal.

On February 5, 1993, defendants Jordan and Underwriters filed a motion to dismiss with prejudice pursuant to Supreme Court Rule 103(b) for failure to exercise reasonable diligence in effecting service of process in the refiled action. The trial court ordered that plaintiff respond to this motion by March 22, 1993, and a hearing on the motion was scheduled for April 15, 1993. On March 15, 1993, defendant Reger moved to adopt Underwriters' pending motion to dismiss.

On April 15, 1993, plaintiff's counsel brought an emergency motion seeking leave to file his overdue response to the Rule 103(b) motion. In this motion, plaintiff's attorney stated that because of "an unexpected and protracted family illness, plaintiff's attorney has failed to file timely plaintiff's response to the motions to dismiss." The trial court ordered that plaintiff's response to defendants' motion to dismiss be served by April 16, 1993. Plaintiff's response to the defendants' motion was not filed until April 21, 1993.

In the verified response, plaintiff's counsel provided the court with a chronology of the two actions brought by plaintiff and presented argument as to the reasons why he believed the Rule 103(b) motion to dismiss should be denied. In making this argument, plaintiff's attorney referred to the circumstances which caused the defendants to be served in January 1993, including the long line at the sheriff's office on July 2, 1992, his inadvertent failure to have the summonses placed with the sheriff's office by a ...


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