Zincoris v. Hobart Bros. Co. (of Ohio)
| Decision Date | 12 March 1993 |
| Docket Number | No. I-92-0482,I-92-0482 |
| Citation | 611 N.E.2d 1327,183 Ill.Dec. 679,243 Ill.App.3d 609 |
| Parties | , 183 Ill.Dec. 679 Daniel R. ZINCORIS, Plaintiff-Appellant, v. HOBART BROTHERS COMPANY (OF OHIO); Hobart Corporation (Of Illinois); and Hobart North Welding Supply, Inc., an Illinois Corporation, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Laird M. Ozmon, Ltd., Joliet (Laird M. Ozmon and James P. Stevenson, of counsel), for plaintiff-appellant.
Heineke, Burke, Healy & Bodach, Chicago (Steven M. Mahoney, of counsel), for Hobart Bros. Co. (of Ohio).
Paulsen and Kane, Chicago (Michael B. Kane and Harvey A. Paulsen, of counsel), for Hobart North Welding Supply, Inc.
Plaintiff sought recovery from defendants Hobart Brothers Company (hereinafter Hobart Ohio), Hobart Corporation (hereinafter Hobart Illinois), and Hobart North Welding Supply, Inc. (hereinafter Hobart North), for personal injuries sustained while he used a welding device during the course of his employment. The court dismissed with prejudice plaintiff's claims against defendant Hobart North because they were not brought within the applicable limitations period. The court also dismissed with prejudice plaintiff's claims against defendant Hobart Ohio for lack of diligence in effecting service of process. Plaintiff has appealed the dismissal of his claims against both of these defendants.
The record reflects that plaintiff was injured on August 2, 1988, while he used a welding device during the course of his employment with Western Architectural Iron Co. Plaintiff initially brought suit on November 10, 1988, against Hobart Ohio, the manufacturer of the welding device, and against Hobart Illinois, the distributor of the device. The complaint asserted that both of these defendants were strictly liable for plaintiff's injuries based upon defects in the design and the manufacture of the welding device.
When the complaint was filed, plaintiff caused a summons to be issued which reflected names and addresses for both of these defendants. According to this summons, Hobart Illinois was to be served at 5439 W. Diversey in Chicago, Illinois. Hobart Ohio was to be served through its agent, Richard Berry, at 600 W. Main Street in Troy, Ohio. The record includes one return of service which indicates that on November 28, 1988, the deputy sheriff served Hobart Illinois at 5439 W. Diversey in Chicago, Illinois, by leaving a copy of the summons and complaint with an "authorized person." The record contains no evidence that the original summons and complaint were ever served on Hobart Ohio or that plaintiff even attempted service on this defendant.
On November 14, 1988, plaintiff brought a motion to compel discovery which requested that his expert be permitted to inspect the welding device and all relevant records and documents. On December 1, 1988, the trial court granted plaintiff's motion and entered an order requiring plaintiff's employer, Western Architectural Iron Co., and Hobart Illinois to produce the welding device for inspection by plaintiff's expert. The court ordered further that all documentation of rental or sale and all records of use and maintenance be produced.
Thereafter, counsel for Hobart North sent a letter dated December 30, 1988, to plaintiff's attorney which stated in relevant part:
On October 24, 1990, plaintiff was granted leave to file an amended complaint which named as an additional defendant Hobart North. Plaintiff's complaint, as finally amended, included allegations of strict liability in tort against Hobart Ohio and Hobart Illinois, the manufacturer and the distributor of the welding device. The complaint also asserted negligence and strict liability in tort against Hobart North, the entity which rented the welding device to the plaintiff's employer. The amended complaint also alleged a claim against Hobart North for breach of implied warranty under the Uniform Commercial Code.
On November 20, 1990, a summons was issued against Hobart North. The summons indicated that Hobart North was to be served through John A. Mors at 5439 W. Diversey in Chicago, Illinois. The record includes a return of service which indicates that on November 27, 1990, the deputy sheriff served Hobart North at 5439 W. Diversey by leaving a copy of the summons and amended complaint with an "agent."
On December 18, 1990, Hobart North filed a section 2-619 motion to dismiss the amended complaint, contending that plaintiff's claims against it were barred because they were not brought within the applicable limitations period. Plaintiff's response to the motion to dismiss asserted that his claims against Hobart North were not barred. Plaintiff premised his argument on section 2-616 of the Code of Civil Procedure, which provides that a cause of action against a person not originally named is not barred by lapse of time if certain terms and conditions are met. (Ill.Rev.Stat.1989, ch. 110, par. 2-616(d).) Plaintiff asserted that all of the conditions mandated by the statute had been satisfied, and he should be permitted to proceed with his claims against Hobart North.
Attached to plaintiff's response to the motion to dismiss was a copy of the December 30, 1988, letter from Hobart North's attorney. Hobart North's motion to dismiss was taken under advisement and ultimately granted by the trial court. In granting this motion, the court found that the plaintiff's failure to join Hobart North within the limitations period could not be deemed inadvertent.
On March 22, 1991, plaintiff caused an alias summons to be issued against Hobart Ohio. This alias summons indicated that Hobart Ohio was to be served through its registered agent, Richard Berry, at 600 W. Main Street in Troy, Ohio. Thus, the alias summons was directed to the same registered agent and at the same address as the original summons which was issued November 11, 1988. The alias summons was served on Hobart Ohio on April 10, 1991.
On June 5, 1991, Hobart Ohio filed a motion to dismiss pursuant to Supreme Court Rule 103(b) (134 Ill.2d R. 103(b)), contending that plaintiff had failed to exercise reasonable diligence in effecting service of process upon this defendant. The trial court rejected the arguments raised by plaintiff in opposition to this motion and found that plaintiff had failed to exercise reasonable diligence in serving Hobart Ohio. Accordingly, the court dismissed with prejudice plaintiff's claim against Hobart Ohio.
Plaintiff has appealed the trial court's dismissal with prejudice of his claims against Hobart North and Hobart Ohio.
We initially address plaintiff's contention that the trial court erred in granting the section 2-619(a)(5) motion to dismiss filed by defendant Hobart North.
In its motion to dismiss, Hobart North argued that because plaintiff failed to assert his claims against this defendant until October 24, 1990, well after the two-year limitations period had expired, he was barred from doing so. The trial court agreed and dismissed plaintiff's claims against Hobart North with prejudice.
In support of plaintiff's contention that the trial court erred in dismissing his claims against Hobart North, he asserts that although these claims were not brought until after the limitations period had expired, he should have been permitted to proceed with his amended complaint under section 2-616(d) of the Code of Civil Procedure. Ill.Rev.Stat.1989, ch. 110, par. 2-616(d).
Section 2-616(d) provides that even though the limitations period has expired, an amendment adding a new defendant may relate back to the date of the filing of the original pleading where certain terms and conditions have been satisfied. Those terms and conditions include (1) statute of limitations had not expired when the original action was commenced; (2) the failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or she was served in the wrong capacity or as agent of another, * * * (4) the person, within the limitations period, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading. Ill.Rev.Stat.1989, ch. 110, par. 2-616(d).
In the instant case, the first, third, fourth, and fifth requirements have been satisfied. The original complaint was filed on November 10, 1988, just over three months after plaintiff's injury and well within the two-year limitations period. Hobart North was served, albeit incorrectly, as agent of Hobart Illinois and was aware of the original action, as evidenced by the letter of December 30, 1988, from counsel for Hobart North. Moreover, the plaintiff's claims against all of the defendants were predicated upon the injuries he sustained while using the welding device rented to his employer. Thus, we must determine whether plaintiff has satisfied the second requirement set forth in section 2-616(d).
Under this statutory requirement, the plaintiff must establish that the failure to join Hobart North as a defendant was inadvertent. "Inadvertence" has been defined as excusable ignorance, not excusable failure to act after the facts are discovered, and it...
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