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08/05/97 JOSEPH ZITO AND ROBERT GARCIA v. AGUSTIN

August 5, 1997

JOSEPH ZITO AND ROBERT GARCIA, PLAINTIFFS-APPELLEES,
v.
AGUSTIN GONZALEZ AND ALEJANDRO GONZALEZ, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable John G. Laurie, Judge Presiding.

Released for Publication September 11, 1997.

The Honorable Justice Tully delivered the opinion of the court. McNULTY, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Tully

The Honorable Justice TULLY delivered the opinion of the court:

Plaintiffs, Joseph Zito and Robert Garcia, brought this action to recover damages occasioned by the alleged negligence of defendant Alejandro Gonzalez committed while driving the automobile of his father, defendant Agustin Gonzalez. The circuit court, finding a misnomer had occurred, allowed plaintiffs to amend their complaint to add Alejandro Gonzalez as an additional defendant. This appeal is taken by Alejandro Gonzalez, by leave of this court under Supreme Court Rule 308 (134 Ill. 2d R. 308), from the circuit court's order allowing plaintiffs leave to file an amended complaint naming him as a defendant. Agustin Gonzalez is not a party to this appeal.

For the reasons which follow, we reverse and remand.

FACTUAL BACKGROUND

On February 26, 1994, the vehicle in which plaintiffs were riding was struck by a car driven by Alejandro Gonzalez and owned by Agustin Gonzalez. Consequently, under the applicable 2-year statute of limitation contained in section 13-202 of the Code of Civil Procedure, the time for filing a personal injury action arising from this accident expired on February 26, 1996. See 735 ILCS 5/13-202 (West 1994).

The accident report filed by the police fists the driver as "Alex J. Gonzalez." The police report listed the owner of the vehicle driven by "Alex J. Gonzalez" as "Agustin Gonzalez." Both "Alex J. Gonzalez" and Agustin Gonzalez were each listed as residing at 4849 South Seeley Avenue in Chicago.

Plaintiffs retained the law firm of James Brown & Associates to represent them in the matter. Subsequently, plaintiffs' counsel contacted State Farm Insurance Company (hereinafter State Farm), which insured the Gonzalez vehicle. In all correspondence between State Farm and plaintiffs' lawyers, there was no mention of Alejandro Gonzalez; there was only reference to Agustin Gonzalez as the insured. It was for this reason, according to plaintiffs, that their lawyers thought that the name of the driver of the Gonzalez car was Agustin Gonzalez. It is undisputed that Agustin Gonzalez was not the individual who was the driver of the automobile involved in the accident with plaintiffs.

Throughout their settlement negotiations with State Farm, no one ever informed plaintiffs' attorneys that the name of the driver was Alejandro Gonzalez. After settlement negotiations proved unsuccessful, the case was referred to the law firm of Pekin & Levin & Associates for the filing of suit. On March 1, 1995, plaintiffs filed their complaint with the clerk of the circuit court; it named Agustin Gonzalez - as the only defendant. On April 19, 1995, service was effected at 4849 South Seeley Avenue on Carlos Gonzalez, Agustin Gonzalez' son and Alejandro Gonzalez' brother.

It was not until during the course of a mandatory arbitration hearing on October 7, 1996, that plaintiffs' attorneys realized that they had sued the wrong person. At the arbitration hearing, Alejandro Gonzalez testified that he was the operator of the vehicle involved in the accident with plaintiffs, not his father. Alejandro Gonzalez further testified that he was aware of the lawsuit shortly after service of process at his home.

On October 29, 1996, after the expiration of the limitation period, plaintiffs' attorneys filed a motion to amend their complaint to "correct a misnomer" and name Alejandro Gonzalez as a defendant. On February 5, 1997, the circuit court granted plaintiffs' motion to amend their complaint. However, the circuit court also found, pursuant to Supreme Court Rule 308(a) (134 Ill. 2d R. 308(a)), that its order granting plaintiffs' motion to amend involved a question of law as to which there is a substantial ground for ...


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