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12/27/96 JOSEPH CIERS v. O.L. SCHMIDT BARGE LINES

December 27, 1996

JOSEPH CIERS, PLAINTIFF-APPELLANT,
v.
O.L. SCHMIDT BARGE LINES, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Arthur A. Sullivan, Jr., Judge Presiding.

Rehearing Denied February 5, 1997. Released for Publication February 13, 1997.

Presiding Justice Hartman delivered the opinion of the court. DiVITO and Burke, JJ., concur.

The opinion of the court was delivered by: Hartman

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

Plaintiff Joseph Ciers appeals from the circuit court order granting defendant's motion for summary judgment based upon the statute of limitations, raising as issues whether (1) defendant should be equitably estopped from asserting a statute of limitations defense; (2) defendant waived the statute of limitations defense; and (3) the statute of limitations should be equitably tolled.

On January 23, 1985, Ciers, a tankerman, was injured after falling on the deck of a barge owned by defendant O.L. Schmidt Barge Lines (Schmidt). On December 10, 1986, Ciers filed a three count complaint based upon The Jones Act, 46 U.S.C. § 688, for failure to provide a seaworthy vessel, negligence, and maintenance and care. On July 31, 1990, Ciers' complaint was voluntarily dismissed without prejudice. On July 30, 1991, he filed a new complaint, pursuant to section 13-217 of the Code of Civil procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13-217, current version at 735 ILCS 5/13-217 (West 1994)), containing the same allegations and adding a common law claim of negligence.

On October 25, 1991, Schmidt filed its answer and affirmative defenses, contending Ciers' exclusive remedy was under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b) (the LHWCA). Schmidt thereafter successfully moved for partial summary judgment as to Ciers' three Jones Act counts. The court's November 5, 1993 order granting Schmidt's motion for partial summary judgment stated that "plaintiff's action shall proceed as a negligence action only as provided in 33 U.S.C. § 905(b), [the LHWCA]." Trial was set thereafter for May 5, 1995.

On April 27, 1995, Schmidt successfully moved to continue the trial date and for leave to file an additional affirmative defense, based on a federal three-year statute of limitations, (46 U.S.C. § 763(a)), and thereafter was granted leave to file an amended answer to include this additional affirmative defense. On May 15, 1995, Schmidt moved for summary judgment based upon the statute of limitations. Ciers replied to the motion for summary judgment, requesting the circuit court to toll the statute of limitations or to find that Schmidt waived the statute of limitations defense. Following argument, the court granted Schmidt's motion for summary judgment.

I

Ciers initially contends equitable principles of estoppel dictate that he be allowed to pursue his cause of action. Schmidt maintains Ciers has failed to prove equitable estoppel.

A motion for summary judgment should be granted only when the pleadings, depositions, admissions, and affidavits on file, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 1994). Summary judgment is a drastic measure and should be used only when the right of the moving party is clear and free from doubt. Loyola Academy v. S. & S. Roof Maintenance, Inc., 146 Ill. 2d 263, 271, 586 N.E.2d 1211, 166 Ill. Dec. 882 (1992). This court reviews summary judgment orders de novo. Zoeller v. Augustine, 271 Ill. App. 3d 370, 374, 648 N.E.2d 939, 208 Ill. Dec. 17 (1995); Demos v. National Bank of Greece, 209 Ill. App. 3d 655, 659, 567 N.E.2d 1083, 153 Ill. Dec. 856 (1991).

Equitable estoppel arises through a party's voluntary conduct whereby he is precluded from asserting his rights against another who in good faith relied on such conduct and was thereby led to change his position to his detriment. Phillips v. Elrod, 135 Ill. App. 3d 70, 74-75, 478 N.E.2d 1078, 88 Ill. Dec. 470 (1985), citing Slavis v. Slavis, 12 Ill. App. 3d 467, 473, 299 N.E.2d 413 (1973); see Vaughn v. Speaker, 126 Ill. 2d 150, 533 N.E.2d 885, 127 Ill. Dec. 803 (1988).

Ciers contends Schmidt should be estopped because it did not object to his voluntary dismissal. No words or conduct by Schmidt amounting to a misrepresentation or concealment of material facts is suggested, nor is there any showing that Schmidt induced Ciers to dismiss the case voluntarily. Cf. Witherell v. Weimer, 118 Ill. 2d 321, 515 N.E.2d 68, 113 Ill. Dec. 259 (1987). Ciers also focuses on Schmidt's conduct after the filing, claiming that it participated in the litigation and did not raise its affirmative defense until the eve of trial. Such conduct, after the statute of limitations expired, however, cannot be used to establish estoppel. Sanders v. Chicago Transit Authority, 220 Ill. App. 3d 505, 508-09, 581 N.E.2d 211, 163 Ill. Dec. 260 (1991).

Ciers also points to Schmidt's failure to object to his voluntary dismissal where it knew he intended to refile. Ciers, however, had an absolute right to voluntarily dismiss the case without prejudice prior to trial. See Raper v. St. Mary's Hospital, 181 Ill. App. 3d 379, 536 N.E.2d 1342, 130 Ill. Dec. 131 (1989). Schmidt had no duty to inform Ciers of the consequences of his dismissal and defense counsel's failure to alert opposing counsel of law bearing on his case cannot support an estoppel. ...


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