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01/30/96 DONALD NICKELS v. CHRISTINE REID

January 30, 1996

DONALD NICKELS, PLAINTIFF-APPELLANT,
v.
CHRISTINE REID, DEFENDANT-APPELLEE, AND PATRICIA VILLAREAL, DEFENDANT.



Appeal from the Circuit Court of Cook County. Honorable Kathy M. Flanagan, Judge Presiding.

As Corrected February 13, 1996.

The Honorable Justice Burke delivered the opinion of the court: Hartman, P.j., and Scariano, J., concur.

The opinion of the court was delivered by: Burke

The Honorable Justice BURKE delivered the opinion of the court:

Plaintiff Donald Nickels appeals from the circuit court's order granting defendant Christine Reid's (Reid) motion to dismiss plaintiff's second amended complaint pursuant to section 2-619 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2-619 (now 735 ILCS 5/2-619 (West 1992))). On appeal, plaintiff contends that the trial court erred in: (1) granting Reid's motion to dismiss because a question of fact existed as to whether Reid was equitably estopped to assert a statute of limitations defense; and (2) finding that plaintiff's second amended complaint did not relate back to the date of the filing of his original complaint. We affirm.

According to plaintiff, on November 9, 1989, he was traveling in a westerly direction on Dempster Street in Niles, Illinois and was stopped at an intersection when his vehicle was struck from behind. Plaintiff asked the other driver for her name and automobile insurance information. The driver, later identified as Reid, gave him the names of Patricia Villareal (Villareal) and State Farm. Plaintiff contacted State Farm, brought his automobile to it for an estimate of damages and subsequently received $60 from State Farm for those damages. Thereafter, plaintiff's attorneys had various conversations with David Tones, the State Farm claims specialist assigned to the "Villareal" file, regarding a possible settlement for his claim of personal injuries. According to plaintiff, State Farm, through Tones, never indicated in its correspondence with plaintiff's attorneys that Reid, whose automobile was also insured by State Farm, was in fact the driver of the automobile that collided with plaintiff's automobile.

On May 1, 1991, plaintiff, who had not received a settlement offer from State Farm, filed a complaint against Villareal. On June 6, 1991, Villareal filed her answer, denying that she was in "the use, possession, operation and control" of a motor vehicle which struck plaintiff's vehicle and that her vehicle had "collided with" plaintiff's vehicle. On August 12, 1991, plaintiff served interrogatories on Villareal. On December 24, 1991, Villareal answered plaintiff's interrogatories. In response to interrogatory numbers 1, 2, 4 and 11, Villareal stated as follows:

"1. State the full name and address of the defendant answering ***.

ANSWER: Patricia Villareal

9112 West Algonquin Road

Huntley, Illinois

2. State the full name and address of each person who witnessed or claims to have witnessed the occurrence alleged in the complaint.

ANSWER: The Plaintiff

Chris Reid, 9112 Algonquin Rd.,

Huntley, Ill. 60142

***

4. Were you the owner or driver of any vehicle involved in ...


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