Vaughn v. Speaker

• Citation: 126 Ill.2d 150,533 N.E.2d 885,127 Ill.Dec. 803
• Decision Date: 21 December 1988
• Docket Number: 65783,Nos. 65736,s. 65736
• Parties: , 127 Ill.Dec. 803 Janet D. VAUGHN et al., Appellees and Appellants, v. Adeline SPEAKER et al., Appellants and Appellees.
• Court: Illinois Supreme Court

Page 885

533 N.E.2d 885

126 Ill.2d 150, 127 Ill.Dec. 803

Janet D. VAUGHN et al., Appellees and Appellants, v. Adeline SPEAKER et al., Appellants and Appellees.

Nos. 65736, 65783.

Supreme Court of Illinois.

Dec. 21, 1988.

Rehearing Denied Jan. 30, 1989.

Bozeman, Neighbour, Patton & Noe, Moline (Robert J. Noe and John W. Robertson, of counsel), for appellants and appellees Speaker et al.

Bernard P. Reese, Jr., and William E. Gottfred, of Reese & Reese, Rockford, for appellees and appellants Vaughn et al.

Martin J. Healy, Jr., and Clare M. Devereux, of Martin J. Healy, Jr. & Associates, Chicago, for amicus curiae Illinois Trial Lawyers Ass'n.

Justice CUNNINGHAM delivered the opinion of the court:

In the circuit court of Whiteside County, on November 27, 1985, Janet D. Vaughn and Richard L. Vaughn filed a complaint against Wilbur P. Speaker, alleging that on December 2, 1983, Speaker negligently caused an automobile accident in which Janet D. Vaughn was injured, and requesting that the cause be tried by a jury. Wilbur P. Speaker had died on January 16, 1985, although plaintiffs were unaware of this fact when they filed the initial complaint. Plaintiffs first learned of the death on December 5, 1985, when the summons was returned to plaintiffs' attorneys without having been served on anyone; the returned summons indicated that Wilbur P. Speaker was deceased. Plaintiffs then, on December 23, 1985, filed a motion to correct misnomer, which was granted. On that same date, plaintiffs filed a complaint making the same allegations as in the initial complaint but naming as defendants "Adeline Speaker and Janet E. Prescott, as Co-Executors of the Estate of Wilbur P. Speaker." A summons was served on December 31, 1985. Defendants moved to dismiss, asserting that the applicable statute of limitations barred the action.

Plaintiffs filed a memorandum in opposition to the motion to dismiss, asserting upon various theories that, for statute of limitations purposes, the second complaint related back to the initial filing. Plaintiffs also asserted in their memorandum that defendants were estopped from asserting the statute of limitations as a defense. Plaintiffs contended (with a supporting affidavit) that the totality of various acts and omissions by the insurance adjuster induced them to believe both that Wilbur Speaker was still living and that the statute of limitations would not be asserted. Specifically, plaintiffs contended that the insurance adjuster conceded liability and made a settlement offer prior to Wilbur Speaker's death. Negotiations continued after the death and allegedly even after the date on which the initial complaint was filed. According to plaintiffs, neither defendants themselves nor the insurance adjuster informed them of the death. Plaintiffs' arguments were rejected and the complaint was dismissed.

The appellate court found that the action was not timely. (156 Ill.App.3d 962, 109 Ill.Dec. 245, 509 N.E.2d 1084.) Relying on Bavel v. Cavaness (1973), 12 Ill.App.3d 633, 299 N.E.2d 435, the appellate court found that the initial action, filed against decedent, was a nullity and could not be amended. The appellate court further found that therefore the second complaint did not relate back to the date of the initial filing and was barred by the applicable statute of limitations. The appellate court also found, however, that an issue of fact existed as to whether defendants were estopped to assert the statute of limitations. The appellate court indicated that evidence suggested the possibility that defendants' insurance company may have lulled plaintiffs into a false sense of security, thereby causing them to delay the assertion of their rights.

Pursuant to Supreme Court Rule 315 (107 Ill.2d R. 315), we granted plaintiffs' petition for leave to appeal regarding whether their complaint was timely filed, and we also granted defendants' petition for leave to appeal regarding whether the evidence raised the possibility that defendants are estopped to assert the statute of limitations.

We first address the issue of whether the complaint against the co-executors was timely filed. In order for us to find that the second complaint was timely filed, we must find that it related back to the date on which the first complaint was filed. The statute of limitations generally governing actions for personal injuries, set forth in section 13-202 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1987, ch. 110, par. 13-202), is two years, and the second complaint was filed over two years from the date of the injury. Moreover, even assuming, arguendo, that section 13-209 of the Code is otherwise applicable, it is of no benefit to plaintiffs. Section 13-209 provides in part:

"If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred, an action may be commenced against his or her executors or administrators after the expiration of the time limited for the commencement of the action, and within 6 months after the issuing of letters of office." (Emphasis added.) (Ill.Rev.Stat.1987, ch. 110, par. 13-209.)

With respect to decedent's estate, letters testamentary were issued on February 13, 1985, more than 10 months before the action was filed naming the co-executors as defendants. Thus, even if section 13-209 were otherwise applicable, it would be of no assistance to plaintiffs here.

We also note that section 18-12 of the Probate Act of 1975 (Ill.Rev.Stat.1987, ch. 110 1/2, par. 18-12), relied on by plaintiffs, is no basis for asserting that the second complaint was filed prior to the running of the statute of limitations. The language of section 18-12 (entitled "Limitations on payment of claims") clearly does not extend any otherwise applicable statute of limitations but instead imposes additional time constraints for making certain claims against a decedent's estate.

We must therefore determine whether the second complaint relates back (for statute of limitations purposes) to the initial complaint which named as defendant a deceased individual. For us to simply label the initial suit a "nullity" (see Wells v. Lueber (1976), 43 Ill.App.3d 973, 3 Ill.Dec. 126, 358 N.E.2d 293; Reed v. Long (1970), 122 Ill.App.2d 295, 259 N.E.2d 411) would be to answer this question in the negative without explanation. We must instead first examine certain Code provisions relied on by plaintiffs in the appellate court (provisions involving the relationship between the amendment of pleadings and the running of a statute of limitations) and determine whether any of those provisions apply.

The provisions upon which plaintiffs relied (in the alternative) during appeal from the circuit court include sections 2-1008(b), 2-616 and 2-401 of the Code (Ill.Rev.Stat.1987, ch. 110, pars. 2-1008(b), 2-616, 2-401). We recognize that, as stated in section 1-106 of the Code (Ill.Rev.Stat.1987, ch. 110, par. 1-106), these and other Code provisions are to be liberally construed. Even under a most liberal construction, however, none of these three provisions (sections 2-1008(b), 2-616 and 2-401) is of avail to plaintiffs.

Section 2-1008(b) provides in part that "[i]f a party to an action dies and the action is one which survives, the proper party or parties may be substituted by order of court." (Ill.Rev.Stat.1987, ch. 110, par. 2-1008(b).) A plain reading of this provision indicates that the General Assembly was referring to situations in which a living being who is already a party to a pending action passes away; the provision was not meant to encompass a situation such as that which is now before this court.

Section 2-401 addresses situations involving a misnomer. That section provides in part that a misnomer of a party "is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires." (Ill.Rev.Stat.1987, ch. 110, par. 2-401(b).) This provision does not encompass naming the wrong party but instead encompasses naming the right party by the wrong name. (Cigan v. St. Regis House Hotel (1979), 72 Ill.App.3d 884, 29 Ill.Dec. 38, 391 N.E.2d 197.) The determination of whether the correction of a particular error in naming a party is merely a correction of a misnomer, or is instead an actual change of parties, should be made based upon conclusions about the intention and understanding of the parties. See Cigan, 72 Ill.App.3d at 887, 29 Ill.Dec. 38, 391 N.E.2d 197.

We cannot conclude that changing the name of the defendant from decedent to his executors is simply the correction of a misnomer. This is not a situation where, for example, a plaintiff merely misspelled a defendant's surname or used an incorrect common name. Instead, plaintiffs here intentionally sued Wilbur P. Speaker when they should have sued his estate. Certainly decedent's estate is the legal successor to certain rights and liabilities of the decedent, but an individual and his estate cannot exist contemporaneously and are wholly distinct legal entities. Accordingly, substitution of the estate for the decedent was not merely the correction of a misnomer, and section 2-401 cannot be invoked for relation back of the second complaint to the date of the original filing.

We next turn to a consideration of the applicability of section 2-616(d) of the Civil Code, which states in part:

"A cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the...