Appeal from the Circuit Court of Cook County No. 09 L 001784 Honorable James D. Egan, Judge Presiding.
The opinion of the court was delivered by: Justice Sterba
JUSTICE STERBA delivered the judgment of the court, with opinion.
Presiding Justice Lavin and Justice Pucinski concurred in the judgment and opinion.
¶ 1 Plaintiff-appellant Patricia Emrikson filed a complaint against defendant-appellee Fernando Morfin alleging negligence in connection with a traffic accident. Defendant moved to dismiss the complaint pursuant to Illinois Supreme Court Rule 103(b) (eff. July 1, 2007), arguing that plaintiff failed to use due diligence in effectuating service upon him. The trial court agreed and granted defendant's motion. On appeal, plaintiff contends that the court erred in granting defendant's motion to dismiss and in denying her motion to reconsider. For the reasons that follow, we affirm.
¶ 3 On February 16, 2007, plaintiff Patricia Emrikson was rear-ended by defendant Fernando Morfin while traveling on Lake Street in Melrose Park, Illinois. According to defendant, at the time, the Melrose Park police completed a traffic crash report (accident report) which detailed the accident. The accident report was completed at the scene and contained defendant's address -- 621 S. Ardmore Avenue, Addison, Illinois -- telephone number, and driver's license number. Almost two years later, on February 13, 2009, three days prior to the running of the statute of limitations, plaintiff filed a complaint alleging negligence in connection with the accident.
¶ 4 Plaintiff used an Internet-based search tool, also known as a skip trace, to obtain defendant's address for service of process. A notice on the search page warns its users that the information may be defective and should be independently verified:
"The Public Records and commercially available data sources used in this system have errors. Data is sometimes entered poorly, processed incorrectly and is generally not free from defect. This system should not be relied upon as definitively accurate. Before relying on any data this system supplies, it should be independently verified."
According to plaintiff, she performed five skip traces on defendant between July 2008 and March 2010, which revealed the following addresses with corresponding dates: 407 Country Club Drive, September 2006 - January 2007; 555 W. Cullerton Street, Apartment 2, September 1999 -October 2006; 1553 N. Mannheim Road, June 2004 - August 2006; 621 S. Ardmore Avenue, March 2006 - July 2009; and 1506 N. Mannheim Road, July 2007 - March 2009. Three of the listed addresses, including Ardmore Avenue, also had corresponding phone numbers.
¶ 5 An initial summons was issued for defendant at 407 Country Club Drive on February 13, 2009. An affidavit of "due and diligent attempt" revealed that Don Haworth was assigned to execute the summons but was unsuccessful because defendant had moved two years prior. When a request for forwarding information from the United States Postal Service did not yield any results, plaintiff moved to appoint a special process server.
¶ 6 Plaintiff was granted leave to issue an alias summons on July 31, 2009, but service was not attempted. A second alias summons was issued on September 9, 2009. In an affidavit of service dated September 10, 2009, Haworth stated that he executed service of the second alias summons upon Teresa Morfin, defendant's sister, at 555 W. Cullerton Street. On October 26, 2009, after receiving the summons and complaint from his sister, defendant moved to quash service upon Teresa. Due to several continuances requested by plaintiff, the motion was not argued until March 11, 2010, after which the circuit court granted the motion without prejudice.
¶ 7 Subsequently, plaintiff performed another skip trace and filed a third alias summons with leave of the court. The special process server was directed to serve defendant at the Ardmore address but did not find defendant there. The process server then attempted and obtained service on defendant at 1506 N. Mannheim Road, defendant's place of business, on March 17, 2010. Thirteen months had elapsed since plaintiff filed the complaint. On April 8, 2010, defendant filed a motion to dismiss pursuant to Illinois Supreme Court Rule 103(b), arguing that plaintiff failed to use due diligence in effectuating service upon him.
¶ 8 At defendant's deposition taken in connection with defendant's motion, defendant testified that prior to the spring of 2006, he lived at the Cullerton address where his mother, father, and sister still reside. However, since the spring of 2006, defendant had lived alone at the Ardmore address. He operated a tire company located at 1506 N. Mannheim Road, where he worked daily from approximately 7:30 a.m. to 8 p.m. Since he had taken up residence at the Ardmore address, defendant had not listed 555 W. Cullerton as his residence on any credit card or any other application. Further, he immediately changed ...