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02/23/96 PHILLIP AUGUSTUS AND PATRICIA AUGUSTUS v.

February 23, 1996

PHILLIP AUGUSTUS AND PATRICIA AUGUSTUS, PLAINTIFFS-APPELLANTS,
v.
ESTATE OF GENE SOMERS, DECEASED, BY AND THROUGH THOMAS GOODWIN, SPECIAL ADMINISTRATOR FOR THE ESTATE OF GENE SOMERS, DECEDENT, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Vermilion County. No. 94L51. Honorable Rita B. Garman, Judge Presiding.

Released for Publication February 23, 1996. As Corrected August 9, 1996.

Honorable James A. Knecht, J., Honorable John T. McCULLOUGH, J., Concurring. Honorable Robert W. Cook, P.j., Dissenting.

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

Plaintiffs Phillip and Patricia Augustus appeal the trial court's grant of summary judgment for defendant estate of Gene Somers, by and through Thomas Goodwin, special administrator for the estate of Gene Somers, decedent. We affirm.

Plaintiffs were involved in an automobile accident with decedent on April 14, 1992, which allegedly resulted in injuries to plaintiffs. Decedent died on September 26, 1992.

On March 21, 1994, plaintiffs filed a complaint titled "Patricia Augustus and Phillip Augustus v. Gene Summers [sic] and Marlyss Summers [sic]." Process was served on Marlyss Somers personally. The return for service on Gene Somers shows service was attempted by abode service by handing Marlyss Somers a copy of the complaint against Gene Somers and by mailing a copy of the complaint to Gene Somers.

On April 11, 1994, plaintiffs filed a motion to quash summons and motion to dismiss the complaint. On April 22, 1994, plaintiffs filed a motion for appointment of special administrator, a petition for substitution of special administrator for deceased party, and a motion suggesting death of a party defendant. On April 29, defendant filed an objections to these motions and petitions, noting Thomas Goodwin had already been appointed as special administrator of decedent's estate (No. 92-P-317). Plaintiffs withdrew their petitions and motions and on May 26 filed a motion for leave to file an amended complaint. On July 8, plaintiffs filed an amended complaint naming the estate of Gene Somers, deceased, by the special administrator Thomas Goodwin, as defendant.

In January 1995, defendant filed a motion for summary judgment asserting plaintiffs' complaint was barred by the two-year statute of limitations. Attached to its motion was an excerpt of the transcript of the deposition testimony of plaintiff Patricia taken in November 1994. During the deposition, the following colloquy occurred:

"Q. [By counsel not identified in transcript excerpt:] When did you learn that Mr. Somers passed away?

A. [Patricia:] It was late one evening, we picked up the newspaper, I think my husband was taking a bath or a shower, and I got to the obituary page and I saw it. And I screamed, 'Oh, Phil, my God, come here. Mr. Gene Somers has passed away. Would you please read this and see if it's the same one who hit us?' And he did and he said yes. And I just shivered, I had cold chills, I was just shocked.

Q. Let me ask you, do you remember the day that you read the obituary?

A. I wrote down the day of his death.

Q. Did you write down the day of his death on the day that you read this obituary?

A. Yes.

Q. And it would have been within -- would it be a fair statement it would have been within several days of his death that you -- that [decedent's obituary] would have been in the paper?

A. Yes."

Defendant asserted because the statute of limitations had run, and because of the fact plaintiffs knew of decedent's death, they could not substitute decedent's estate as the defendant after the statute of limitations had run and plaintiffs could not file suit against decedent's estate.

Plaintiffs responded their amended complaint should relate back to the initial complaint because they were not aware of decedent's death because of their mistaken spelling of decedent's last name, i.e., they believed it had been spelled "Summers" rather than the true spelling "Somers." Plaintiffs also argued, in the alternative, defendant was estopped from asserting the statute of limitations defense because defendant's insurance company, Standard Mutual, led plaintiffs to believe the case would be settled. Plaintiffs' attorney, Nicholas Schiro, sent a letter to Standard Mutual dated December 6, 1993, in which he stated, "if you want to settle [the case], then tender the policy limits of $250,000.00 immediately. *** You must realize that if the policy limits are not tendered, we will have no choice but to file suit[.]" In a reply letter dated December 9, 1993, Standard Mutual correctly spelled decedent's last name and responded, "We certainly have no information which would suggest that your client's claim has any value near our insured's policy limit. *** Based upon the information at hand, we will increase our offer to $8,500.00 to amicably resolve the claim at this juncture." No further offers or counteroffers had been made.

The trial court granted defendant's motion for summary judgment, finding plaintiffs had either actual or constructive notice of decedent's death, that substitution of the personal representative of decedent's estate was not proper and no conduct by ...


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