{ "id": 1156897, "name": "PHILIP AUGUSTUS et al., Plaintiffs-Appellants, v. ESTATE OF GENE SOMERS, Deceased, by and through Thomas Goodwin, Special Adm'r for the Estate of Gene Somers, Decedent, Defendant-Appellee", "name_abbreviation": "Augustus v. Estate of Somers", "decision_date": "1996-02-23", "docket_number": "No. 4 \u2014 95 \u2014 0253", "first_page": "90", "last_page": "104", "citations": [ { "type": "official", "cite": "278 Ill. App. 3d 90" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "382 N.E.2d 95", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "100" } ], "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 669", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3326763 ], "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0669-01" ] }, { "cite": "650 N.E.2d 281", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "283" } ], "opinion_index": 0 }, { "cite": "272 Ill. App. 3d 117", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 252934 ], "year": 1978, "pin_cites": [ { "page": "121" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0117-01" ] }, { "cite": "533 N.E.2d 885", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "pin_cites": [ { "page": "889-90" }, { "page": "890" }, { "page": "891" }, { "page": "891" } ], "opinion_index": 0 }, { "cite": "126 Ill. 2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5557370 ], "weight": 5, "pin_cites": [ { "page": "161" }, { "page": "162-63" }, { "page": "164-65" }, { "page": "164-65" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/126/0150-01" ] }, { "cite": "605 N.E.2d 539", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "542" } ], "opinion_index": 0 }, { "cite": "152 Ill. 2d 533", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5603065 ], "pin_cites": [ { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0533-01" ] }, { "cite": "607 N.E.2d 1251", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1253" } ], "opinion_index": 0 }, { "cite": "154 Ill. 2d 193", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820884 ], "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0193-01" ] }, { "cite": "450 N.E.2d 482", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "485-86" } ], "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 532", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3558310 ], "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0532-01" ] }, { "cite": "611 N.E.2d 1327", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1331" } ], "opinion_index": 0 }, { "cite": "243 Ill. App. 3d 609", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5108838 ], "pin_cites": [ { "page": "614" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/243/0609-01" ] }, { "cite": "191 N.E.2d 250", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "253-54" }, { "page": "253-54" } ], "opinion_index": 0 }, { "cite": "41 Ill. App. 2d 413", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2451684 ], "weight": 2, "pin_cites": [ { "page": "419-20" }, { "page": "420" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/41/0413-01" ] }, { "cite": "176 N.E.2d 659", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "662" }, { "page": "662" } ], "opinion_index": 0 }, { "cite": "32 Ill. App. 2d 55", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5231372, 5231862 ], "weight": 2, "pin_cites": [ { "page": "61" }, { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/32/0064-01", "/ill-app-2d/32/0055-01" ] }, { "cite": "635 N.E.2d 643", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "646" } ], "opinion_index": 0 }, { "cite": "262 Ill. App. 3d 1039", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850068 ], "pin_cites": [ { "page": "1043-44" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/1039-01" ] }, { "cite": "645 N.E.2d 345", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "347" } ], "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 932", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381847 ], "pin_cites": [ { "page": "935" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0932-01" ] }, { "cite": "1989 Ill. Laws 4195", "category": "laws:leg_session", "reporter": "Ill. Laws", "opinion_index": 1 }, { "cite": "382 N.E.2d 95", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "100" } ], "opinion_index": 1 }, { "cite": "65 Ill. App. 3d 669", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3326763 ], "pin_cites": [ { "page": "675" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/65/0669-01" ] }, { "cite": "650 N.E.2d 281", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "283" } ], "opinion_index": 1 }, { "cite": "272 Ill. App. 3d 117", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 252934 ], "year": 1978, "pin_cites": [ { "page": "120-21" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/272/0117-01" ] }, { "cite": "533 N.E.2d 885", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "888, 889" }, { "page": "889" }, { "page": "892" }, { "page": "890", "parenthetical": "\"Nor may we formulate such a rule under our inherent and statutory authority to formulate rules of procedure\" (emphasis added)" } ], "opinion_index": 1 }, { "cite": "126 Ill. 2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5557370 ], "weight": 4, "pin_cites": [ { "page": "157, 159-60" }, { "page": "160" }, { "page": "165-66" }, { "page": "161" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/126/0150-01" ] } ], "analysis": { "cardinality": 1176, "char_count": 34834, "ocr_confidence": 0.752, "pagerank": { "raw": 5.180088568890942e-07, "percentile": 0.9399349151243953 }, "sha256": "37f4a3ea81f744b9c7478472075e3ab117227a98151fcf88b5806474337e716f", "simhash": "1:b8ba5d84e2656c58", "word_count": 5752 }, "last_updated": "2023-07-14T17:33:42.611238+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PHILIP AUGUSTUS et al., Plaintiffs-Appellants, v. ESTATE OF GENE SOMERS, Deceased, by and through Thomas Goodwin, Special Adm\u2019r for the Estate of Gene Somers, Decedent, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE KNECHT\ndelivered the opinion of the court:\nPlaintiffs Phillip and Patricia Augustus appeal the trial court\u2019s grant of summary judgment for defendant estate of Gene Somers, by and through Thomas Goodwin, special administrator for the estate of Gene Somers, decedent. We affirm.\nPlaintiffs were involved in an automobile accident with decedent on April 14, 1992, which allegedly resulted in injuries to plaintiffs. Decedent died on September 26, 1992.\nOn March 21, 1994, plaintiffs filed a complaint titled \"Patricia Augustus and Phillip Augustus v. Gene Summers [szc] and Marlyss Summers [sic].\u201d Process was served on Marlyss Somers personally. The return for service on Gene Somers shows service was attempted by abode service by handing Marlyss Somers a copy of the complaint against Gene Somers and by mailing a copy of the complaint to Gene Somers.\nOn April 11, 1994, plaintiffs filed a motion to quash summons and motion to dismiss the complaint. On April 22, 1994, plaintiffs filed a motion for appointment of special administrator, a petition for substitution of special administrator for deceased party, and a motion suggesting death of a party defendant. On April 29, defendant filed objections to these motions and petitions, noting Thomas Goodwin had already been appointed as special administrator of decedent\u2019s estate (No. 92 \u2014 P \u2014 317). Plaintiffs withdrew their petitions and motions and on May 26 filed a motion for leave to file an amended complaint. On July 8, plaintiffs filed an amended complaint naming the estate of Gene Somers, deceased, by the special administrator Thomas Goodwin, as defendant.\nIn January 1995, defendant filed a motion for summary judgment asserting plaintiffs\u2019 complaint was barred by the two-year statute of limitations. Attached to its motion was an excerpt of the transcript of the deposition testimony of plaintiff Patricia taken in November 1994. During the deposition, the following colloquy occurred:\n\"Q. [By counsel not identified in transcript excerpt:] When did you learn that Mr. Somers passed away?\nA. [Patricia:] It was late one evening, we picked up the newspaper, I think my husband was taking a bath or a shower, and I got to the obituary page and I saw it. And I screamed, 'Oh, Phil, my God, come here. Mr. Gene Somers has passed away. Would you please read this and see if it\u2019s the same one who hit us?\u2019 And he did and he said yes. And I just shivered, I had cold chills, I was just shocked.\nQ. Let me ask you, do you remember the day that you read the obituary? ' \u00b0\nA. I wrote down the day of his death.\nQ. Did you write down the day of his death on the day that you read this obituary?\nA. Yes.\nQ. And it would have been within \u2014 would it be a fair statement it would have been within several days of his death that you\u2014 that [decedent\u2019s obituary] would have been in the paper?\nA. Yes.\u201d\nDefendant asserted because the statute of limitations had run, and because of the fact plaintiffs knew of decedent\u2019s death, they could not substitute decedent\u2019s estate as the defendant after the statute of limitations had run and plaintiffs could not file suit against decedent\u2019s estate.\nPlaintiffs responded their amended complaint should relate back to the initial complaint because they were not aware of decedent\u2019s death because of their mistaken spelling of decedent\u2019s last name, i.e., they believed it had been spelled \"Summers\u201d rather than the true spelling \"Somers.\u201d Plaintiffs also argued, in the alternative, defendant was estopped from asserting the statute of limitations defense because defendant\u2019s insurance company, Standard Mutual, led plaintiffs to believe the case would be settled. Plaintiffs\u2019 attorney, Nicholas Schiro, sent a letter to Standard Mutual dated December 6, 1993, in which he stated, \"[i]f you want to settle [the case], then tender the policy limits of $250,000.00 immediately. *** You must realize that if the policy limits are not tendered, we will have no choice but to file suit[.]\u201d In a reply letter dated December 9, 1993, Standard Mutual correctly spelled decedent\u2019s last name and responded, \"We certainly have no information which would suggest that your client\u2019s claim has any value near our insured\u2019s policy limit. *** Based upon the information at hand, we will increase our offer to $8,500.00 to amicably resolve the claim at this juncture.\u201d No further offers or counteroffers had been made.\nThe trial court granted defendant\u2019s motion for summary judgment, finding plaintiffs had either actual or constructive notice of decedent\u2019s death, that substitution of the personal representative of decedent\u2019s estate was not proper and no conduct by defendant supported plaintiffs\u2019 estoppel argument. Plaintiffs appeal.\nSummary judgment is proper only where the pleadings, depositions and admissions on file, together with affidavits, if any, show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. This court reviews summary judgment orders de novo and may affirm the trial court\u2019s result on any basis the record permits, even if not the ground on which the court based its ruling. Sandstrom v. De Silva (1994), 268 Ill. App. 3d 932, 935, 645 N.E.2d 345, 347.\nSection 2 \u2014 616(d) of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 616(d) (West 1992)), governing \"relation back,\u201d declares:\n\"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 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, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary; (4) the person, within the time that the action might have been brought or the right asserted against him or her, 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 ***. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back to the date of the filing of the original pleading so amended.\u201d\nHere, plaintiffs assert all five conditions of section 2 \u2014 616(d) of the Code are met. We need not examine all five conditions, however, because the failure to satisfy even one of the requisite elements of section 2 \u2014 616(d) of the Code precludes the amended complaint from relating back. Webb v. Ambulance Service Corp. (1994), 262 Ill. App. 3d 1039, 1043-44, 635 N.E.2d 643, 646.\nPlaintiffs do not meet the second requirement: inadvertence in failing to name the proper defendant in earlier pleadings. Although the statute does not define \"inadvertence,\u201d the term was first defined in Robinson v. Chicago National Bank (1961), 32 Ill. App. 2d 55, 61, 176 N.E.2d 659, 662, where the First District Appellate Court defined \"inadvertence\u201d as used in section 46(4) of the Civil Practice Act (Ill. Rev. Stat. 1959, ch. 110, par. 46(4)), a predecessor to section 2 \u2014 616 of the Code (735 ILCS 5/2 \u2014 616 (West 1992)). In Robinson, a plaintiff sought to amend her pleading to include a defendant, arguing even though she had been aware of the identity of the defendant six months prior to the running of the statute of limitations, her failure to name the defendant had been merely \"inadvertent.\u201d The court disagreed:\n\"In our view the word 'inadvertence\u2019 means excusable ignorance, not excusable failure to act after the facts are discovered. When plaintiff read the answers to the interrogatories she knew the identity of the proper defendants. She was not then ignorant of any fact. A plaintiff must act with reasonable diligence after the identity of the true defendants becomes known.\u201d (Robinson, 32 Ill. App. 2d at 61, 176 N.E.2d at 662.)\nThis court adopted this definition in Cox v. Shupe (1963), 41 Ill. App. 2d 413, 419-20, 191 N.E.2d 250, 253-54. There, after the statute of limitations had run, the plaintiff sought to amend her complaint to include additional defendants, even though she had been aware of their identity 14 months prior to the running of the statute of limitations. She argued section 46(4) of the Civil Practice Act (Ill. Rev. Stat. 1961, ch. 110, par. 46(4)) allowed her to add these defendants because her failure to do so had been merely \"inadvertent.\u201d This court followed Robinson and rejected the plaintiff\u2019s argument. This court concluded:\n\"To adopt plaintiff\u2019s reasoning would, theoretically, place no time limit upon a suit, and would nullify any protection against stale claims. We hold, under the facts of this case, that plaintiff\u2019s failure to add the additional parties was not inadvertent, but was inexcusable failure to act with reasonable diligence after defendants\u2019 identity became known.\u201d (Cox, 41 Ill. App. 2d at 420, 191 N.E.2d at 253-54.)\nSince Robinson and Cox, this definition of \"inadvertence\u201d has been applied consistently in a long line of cases in the appellate courts:\n\" 'Inadvertence\u2019 has been defined as excusable ignorance, not excusable failure to act after the facts are discovered, and it does not include the failure to act appropriately where the defendant\u2019s true identity is known by the plaintiff. *** Where a plaintiff has been made aware of the identity of a defendant before the period of limitations has run, but does not amend his complaint to add that defendant until after the statute has run, the failure to join that defendant will not be considered inadvertent.\u201d (Zincoris v. Hobart Brothers Co. (1993), 243 Ill. App. 3d 609, 614, 611 N.E.2d 1327, 1331.)\nOur research has revealed no case which has repudiated these principles, and no case which has held contrary to these cases and allowed a plaintiff to add a defendant under section 2 \u2014 616 of the Code when the plaintiff knew of the true identity of that defendant prior to the running of the statute of limitations. Plaintiffs and the dissent would have us rule contrary to 35 years of case law interpreting section 2 \u2014 616, and allow plaintiffs to amend their complaint even though they were aware of decedent\u2019s death 18 months prior to the running of the statute of limitations. We decline to do so. The reasoning of this court in Cox is no less persuasive today. Plaintiffs cannot rely on section 2 \u2014 616 as support for their position.\nPlaintiffs would have us believe the fact their attorney mistakenly spelled \"Somers\u201d as \"Summers\u201d in later pleadings reveals they were not aware of the death of decedent Gene \"Somers\u201d until after his estate responded in pleadings and indicated decedent had died. However, this contradicts the clear and undisputed deposition testimony of plaintiffs in which they admit they became aware of the death of decedent in late September or early October 1992. According to the deposition testimony of Patricia, she and her husband Phillip read decedent\u2019s obituary within a few days after his death, and Phillip stated it was the same person involved in their car accident and named as a defendant in their ongoing litigation. Moreover, in plaintiffs\u2019 \"Response to Defendant\u2019s Request to Admit\u201d dated January 1995, plaintiffs admit they knew of decedent\u2019s death within several days of his death and told their attorney decedent had died. In their response, plaintiffs also state their attorney then mistakenly searched the probate records for Gene \"Summers,\u201d and after the search did not indicate the death of Gene \"Summers,\u201d their attorney proceeded on the assumption the defendant was still alive. However, plaintiffs offer no explanation how their attorney ignored several correspondences to him from Standard Mutual, decedent\u2019s insurer, in which it correctly spelled \"Somers\u201d as the name of its insured. Standard Mutual did so in correspondence to plaintiffs\u2019 attorney dated September 7, November 16, December 4, and December 9, 1993. This gave plaintiffs\u2019 attorney at least seven months\u2019 notice prior to the running of the statute of limitations to conduct a probate search for Gene \"Somers,\u201d but plaintiffs\u2019 attorney did not do this. Plaintiffs did not file a pleading naming the estate of decedent as a defendant, however, until July 1994.\nNotwithstanding these facts, plaintiffs suggest they and their attorney did not file an amended complaint until this time because their misspelling of decedent\u2019s last name caused them to be unaware of decedent\u2019s death. This claim amounts to an intentional misrepresentation to the court. Plaintiffs had about 18 months left to file their pleadings after having actual knowledge of decedent\u2019s death, but did not name the estate or move to amend to do so in that time frame. Their late efforts may have been diligent in the sense they proceeded in this fashion within weeks of filing their original complaint, but their delay was not inadvertent. Because plaintiffs failed to meet this condition of section 2 \u2014 616(d) of the Code, we need not discuss the other statutory requirements.\nPlaintiffs rely heavily on Evans v. Graber, Inc. (1983), 115 Ill. App. 3d 532, 537, 450 N.E.2d 482, 485-86. They correctly note Evans stands for the proposition a plaintiff under section 2 \u2014 616(d) may file an amended pleading relating back to the initial pleading where the plaintiff diligently moves to timely amend the pleading soon after learning the identity of the proper defendant. Plaintiffs focus our attention on the fact they diligently amended their complaint to properly spell decedent\u2019s last name \"Somers\u201d soon after learning of the correct spelling. However, the spelling of decedent\u2019s last name is irrelevant here. By their own admission they knew of decedent\u2019s death in September 1992, yet did not name his estate as a party defendant until July 1994. Moreover, plaintiffs\u2019 attorney had notice of the correct spelling of decedent\u2019s last name as early as September 1993, but made no attempt to ascertain whether Gene \"Somers,\u201d rather than Gene \"Summers,\u201d had died, as plaintiffs had informed him. This is not diligent.\nAlthough plaintiffs make no such argument, the dissent concludes plaintiffs were entitled to name the estate of Gene Somers as a defendant under section 13 \u2014 209(c) of the Code, which states:\n\"If a party commences an action against a deceased person whose death is unknown to the party before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred, the action may be commenced against the deceased person\u2019s personal representative if all of the following terms and conditions are met:\n(1) After learning of the death, the party proceeds with reasonable diligence to move the court for leave to file an amended complaint, substituting the personal representative as defendant.\u201d (Emphasis added.) (735 ILCS 5/13 \u2014 209(c)(1) (West 1992).)\nAs we have already explained, plaintiffs were aware of decedent\u2019s death at the time they filed their complaint naming him as a defendant. Therefore, section 13 \u2014 209(c) of the Code would appear inapplicable. The dissent, however, although admitting section 13 \u2014 209(c) uses the words \"whose death is unknown to the party,\u201d believes these words do not impose a substantive condition and section 13\u2014 209(c) applies even where a plaintiff is aware of a defendant\u2019s death yet acts carelessly in naming the deceased person instead of the estate. (See 278 Ill. App. 3d at 103.) We understand the dissent\u2019s concern, in essence, that form not be elevated over substance. However, the dissent\u2019s proposed reading of section 13 \u2014 209(c) is directly contrary to its plain language, as well as the policy behind this section.\nThe primary rule of statutory construction, to which all other rules are subordinate, is to ascertain and give effect to the true intent of the legislature. In determining the legislative intent, a court should first consider the statutory language. Where the statutory language is clear, it will be given effect without resort to other aids for construction. However, where the language is ambiguous, it is appropriate to examine the legislative history. (People ex rel. Baker v. Cowlin (1992), 154 Ill. 2d 193, 197, 607 N.E.2d 1251, 1253.) In determining legislative intent, a court may consider the reason and necessity for the law, the evils to be remedied, and the objects to be attained. In addition, a court construing the language of a statute will assume that the legislature did not intend to produce an absurd or unjust result. State Farm Fire & Casualty Co. v. Yapejian (1992), 152 Ill. 2d 533, 541, 605 N.E.2d 539, 542.\nHere, the plain and unambiguous language of section 13 \u2014 209(c) of the Code allows a plaintiff to commence a suit against a deceased\u2019s personal representative only if the deceased\u2019s death was unknown to the plaintiff when the original complaint was filed. Therefore, we must give this language effect without resort to other aids of statutory construction. The legislative history of this section also supports this interpretation.\nAs the dissent notes, section 13 \u2014 209(c) of the Code was enacted after the decision of the Supreme Court of Illinois in Vaughn v. Speaker (1988), 126 Ill. 2d 150, 533 N.E.2d 885. In Vaughn, the plaintiffs named Speaker, a deceased person, as the defendant in their complaint filed only a few days prior to the expiration of the statute of limitations. Only after summons was returned unserved did the plaintiffs become aware of Speaker\u2019s death, and they sought to amend their complaint to substitute the representative of Speaker\u2019s estate as defendant, even though the statute of limitations had run. The supreme court declared there was no statutory authority which would allow the plaintiffs to do so:\n\"Plaintiffs have thus not pointed out, and we have not found, any Code provision by which the second complaint can be said to relate back to the date of the initial filing. Nor may we formulate such a rule under our inherent and statutory authority to formulate rules of procedure. [Citation.] It is true, as plaintiffs submit, that rules regarding amendments to pleadings are procedural in nature, as is a statute of limitations itself. But even though procedural in nature, a statute of limitations, if properly asserted by one entitled to its protection, is a bar to an action. It is a legislatively determined deadline for commencing an action against one who otherwise might be legally indebted to a plaintiff. This court may not, under the guise of procedural rulemaking, effectively eviscerate a valid statute of limitations.\u201d (Vaughn, 126 Ill. 2d at 161, 533 N.E.2d at 889-90.)\nAfter Vaughn, the legislature added section 13 \u2014 209(c). It appears the legislature intended to address the situation where a plaintiff, because of carelessness, is unaware of a proposed defendant\u2019s death and names that deceased person as the defendant in the plaintiff\u2019s complaint. If the conditions in section 13 \u2014 209(c) are met, the plaintiff will be permitted to substitute the personal representative of the decedent as the defendant even though the statute of limitations has already run.\nThe situation here is unlike the situation in Vaughn. There, the plaintiffs were unaware of the decedent\u2019s death when they named him as the defendant in their complaint. Here, plaintiffs were aware of decedent\u2019s death when they named him as the defendant in their complaint. Thus, it appears section 13 \u2014 209(c) of the Code was not intended to address the situation here. Moreover, interpreting section 13 \u2014 209(c) to apply here would encourage plaintiffs who are aware of a possible defendant\u2019s death to fabricate excuses for failing to name as a defendant the personal representative of the estate of that deceased. This would, theoretically, place no time limit on bringing a suit, because a plaintiff could at any time after the statute of limitations had run seek to add a defendant under this section. Surely this is not what the legislature intended in enacting section 13\u2014 209(c), and that is why it included the requirement a plaintiff must be unaware of the proposed defendant\u2019s death.\nThe dissent, however, would read \"whose death is unknown to the party\u201d as stated in section 13 \u2014 209(c) as \"whose death is unknown to the party or the party\u2019s attorney.\u201d In this way, the dissent proposes, the statute would further the policy behind section 13\u2014 209, which the dissent notes is to \" ' \"implement the legislative intent to preserve causes of action including those sounding in wrongful death against loss by reason of technical rules of pleading.\u201d \u2019 \u201d (278 Ill. App. 3d at 103, quoting Hardimon v. Carle Clinic Association (1995), 272 Ill. App. 3d 117, 121, 650 N.E.2d 281, 283, quoting Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669, 675, 382 N.E.2d 95, 100.) The dissent\u2019s proposed interpretation runs directly counter to the plain and unambiguous language of section 13 \u2014 209(c). We can find no authority for interpreting the word \"party\u201d to mean anything other than one of the actual parties to a lawsuit:\n\" 'Party\u2019 is a technical word having a precise meaning in legal parlance; it refers to those by or against whom a legal suit is brought, whether in law or in equity, the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons; all others who may be affected by the suit, indirectly or consequently, are persons interested but not parties.\u201d (Black\u2019s Law Dictionary 1122 (6th ed. 1990).)\nThus, a party\u2019s attorney is not a party to the lawsuit in which that party is involved. By reading \"party\u201d as used in section 13 \u2014 209(c) to include the party\u2019s attorney, the dissent would have us do what our supreme court in Vaughn said it did not have the authority to do: rewrite the Code to allow the plaintiffs to amend their pleading after the statute of limitations had run. Regardless, as we have explained earlier, plaintiffs admit they informed their attorney of decedent\u2019s death soon after decedent\u2019s death, and plaintiffs\u2019 attorney had notice of the correct spelling of decedent\u2019s name well in advance of the end of the statute of limitations period. In short, section 13 \u2014 209(c) does not support the plaintiffs\u2019 position.\nPlaintiffs then assert even if the statute of limitations otherwise barred their claim, the conduct of defendant\u2019s insurance company, Standard Mutual, has estopped defendant from asserting the statute of limitations as a defense. Equitable estoppel requires six elements. First, there must be words or conduct by the party against whom the estoppel is alleged amounting to a misrepresentation or concealment of material facts. Second, the party against whom the estoppel is alleged must have had knowledge at the time the representations were made the representations were not true. Third, the truth respecting the representations so made must be unknown to the party claiming the benefit of the estoppel at the time the representations were made and at the time they were acted on by him. Fourth, the party estopped must intend or reasonably expect his conduct or representations will be acted upon by the party asserting the estoppel. Fifth, the party claiming the benefit of the estoppel must have in good faith relied upon the misrepresentation to his detriment, and this reliance must be reasonable. Sixth, the party claiming the benefit of the estoppel must have acted so he would be prejudiced if the first party is permitted to deny the truth thereof. Vaughn, 126 Ill. 2d at 162-63, 533 N.E.2d at 890.\nPlaintiffs assert they failed to file pleadings within the statute of limitations naming decedent\u2019s estate as a defendant because Standard Mutual led them to believe the case would be settled. Conduct by defendant\u2019s insurer can, in some instances, give rise to \"an apparent intent to pay the claim\u201d which will estop a defendant from raising the statute of limitations as a defense. (See Vaughn, 126 Ill. 2d at 164-65, 533 N.E.2d at 891.) Plaintiffs assert this is what occurred here. However, this contention is without merit.\nPlaintiffs assert the correspondence between their attorney and Standard Mutual demonstrated defendant\u2019s intent to settle, and plaintiffs detrimentally relied on this intent by failing to file suit sooner. Contrary to plaintiffs\u2019 assertions, the language of these letters shows plaintiffs expressly informed defendant a lawsuit would be filed unless the full policy limits of $250,000 were tendered to them. Defendant expressly rejected plaintiffs\u2019 offer and instead made a counteroffer to settle for $8,500. When the defendant rejected their ultimatum, and made a grossly disparate counteroffer, plaintiffs were aware defendant intended to resist their claim unless plaintiffs greatly reduced their demand. Plaintiffs cannot now argue defendant exhibited an \"apparent intent to pay the claim.\u201d (See Vaughn, 126 Ill. 2d at 164-65, 533 N.E.2d at 891.) No reasonable interpretation of the correspondence from defendant supports this contention. The trial court was entitled to conclude, as a matter of law, no conduct by Standard Mutual induced plaintiffs to believe their claim was going to be settled.\nPlaintiffs also contend they detrimentally relied on \"defendant\u2019s implied and apparent misrepresentations regarding decedent\u2019s death\u201d because decedent\u2019s insurer never mentioned the death of decedent during negotiations. This contention is without merit. Even if Standard Mutual\u2019s conduct amounted to a misrepresentation, plaintiffs had actual knowledge of decedent\u2019s death in September 1992. Plaintiffs cannot now contend they relied on an alleged misrepresentation to the contrary. The trial court did not err in concluding decedent\u2019s insurer\u2019s conduct, as a matter of law, did not estop defendant from raising the statute of limitations as a defense.\nThe judgment of the trial court is affirmed.\nAffirmed.\nMcCullough, j., concurs.", "type": "majority", "author": "JUSTICE KNECHT" }, { "text": "PRESIDING JUSTICE COOK,\ndissenting:\nI respectfully dissent.\nPlaintiffs were injured in an automobile accident on April 14, 1992. The two-year personal injury statute of limitations was to expire April 14, 1994, but on March 21, 1994, plaintiffs filed their complaint against defendants Gene Somers and Marlyss Somers, misspelling their names. Unfortunately, Gene Somers had died September 26, 1992, and an administrator had been appointed for him on March 11, 1993 (replaced by a special administrator, Thomas Goodwin, on October 27, 1993). After defendants filed a motion to quash, on April 11,1994, plaintiffs filed a motion for appointment of a special administrator on April 22, 1994, and then a motion to add Goodwin as a party on May 26, 1994.\nA similar fact situation existed in Vaughn, where plaintiffs\u2019 complaint, filed a few days before the expiration of the statute of limitations, named Wilbur Speaker as a defendant. When summons was returned unserved, plaintiffs learned that Speaker was deceased and attempted to serve the executors of his estate. The court decided the case under section 2 \u2014 616(d) of the Code. (Dl. Rev. Stat. 1987, ch. 110, par. 2 \u2014 616(d).) The court refused to simply label a suit against a deceased person as a \"nullity.\u201d (Vaughn, 126 Ill. 2d at 157, 159-60, 533 N.E.2d at 888, 889.) The court did find, however, that there was no indication that a key requirement of section 2 \u2014 616(d) of the Code had been met: that the substituted defendant received notice of the pending action prior to the lapse of the limitations period. Vaughn, 126 Ill. 2d at 160, 533 N.E.2d at 889.\nIn the present case the majority does not rely upon lack of notice, but upon the requirement of section 2 \u2014 616(d) of the Code that the \"failure to join the person as a defendant was inadvertent.\u201d (735 ILCS 5/2 \u2014 616(d) (West 1992).) The majority finds that the failure to name the estate in this case was something more than inadvertence (gross inadvertence?), because plaintiffs \"knew,\u201d before their complaint was filed, that Gene Somers was deceased. I recognize we should not encourage slipshod work on the part of attorneys, but punishment of plaintiffs\u2019 carelessness in this case does not further the policy of section 2 \u2014 616(d).\nComplications may arise when defendants die before suit is filed, and the legislative policy is that plaintiffs in such cases should have additional time to bring their action. Even where plaintiffs have acted carelessly they may still have a right to bring their action. (See Vaughn, 126 Ill. 2d at 165-66, 533 N.E.2d at 892.) \"Inadvertent\u201d means \"not turning the mind to a matter,\u201d \"INATTENTIVE,\u201d \"UNINTENTIONAL.\u201d (Webster\u2019s Ninth New Collegiate Dictionary 607 (1986).) A plaintiff should not be allowed to intentionally name the wrong party in an attempt to extend the time for filing or to gain some other advantage, but there is no indication of such intentional misconduct in this case.\nThe majority suggests that allowing the estate to be added as a defendant would \"theoretically, place no time limit on bringing a suit, because a plaintiff could at any time after the statute of limitations had run seek to add a defendant.\u201d (278 Ill. App. 3d at 99.) In all these cases, however, a lawsuit is filed and service is commenced within the two-year period of the statute of limitations. These cases always come to a head when a motion to dismiss or quash is filed a few days after the running of the statute. If the statute could just be extended a few weeks, there would be no problem. In the absence of any intentional misconduct, it is the legislative policy that the statute be extended. The majority\u2019s approach rewards litigants who do not mention the death of a defendant until it is too late for plaintiff to do anything about it.\nThere is an implication in Vaughn that the supreme court did not consider the result appropriate and that the legislature should consider changes in the rule. (See Vaughn, 126 Ill. 2d at 161, 533 N.E.2d at 890 (\"Nor may we formulate such a rule under our inherent and statutory authority to formulate rules of procedure\u201d (emphasis added)).) The legislature apparently acted on that suggestion and added a new subsection (c) to section 13 \u2014 209 of the Code. 735 ILCS 5/13 \u2014 209(c) (West 1992) (added by Pub. Act 86 \u2014 793, eff. January 1, 1990) (1989 Ill. Laws 4195).\nUnder section 13 \u2014 209(c) of the Code, when a party commences an action against a deceased person whose death is unknown, the action may be refiled against the deceased person\u2019s personal representative so long as the amended complaint is filed within two years of the expiration of the original statute of limitations. If the amended complaint is filed more than six months after the issuance of letters, the estate is liable only to the extent it is protected by liability insuranee. (735 ILCS 5/13 \u2014 209(c) (West 1992).) It is true that section 13\u2014 209(c) uses the words \"whose death is unknown to the party\u201d (735 ILCS 5/13 \u2014 209(c) (West 1992)), but in my view those words are only descriptive of the situation where section 13 \u2014 209(c) is meant to apply and are not intended to impose a rigorous substantive condition. Section 13 \u2014 209(c) lists four \"terms and conditions\u201d which must be met. A party\u2019s lack of knowledge of the death is not one of those terms and conditions, although it is required that after learning of the death the party proceeds with reasonable diligence to seek leave to file an amended complaint. That was done here. The majority suggests that plaintiffs \"knew\u201d of decedent\u2019s death before the statute ran. (278 Ill. App. 3d at 95.) Actually, the most that can be said is that plaintiffs should have known of decedent\u2019s death. The undisputed evidence is that plaintiffs read the obituary, and communicated with their attorney, but when the attorney checked out the information he (mistakenly) determined it was not accurate. A person who is told something, but does not believe it, cannot be said to \"know\u201d it.\nThe majority opinion notes that plaintiffs \"were aware of decedent\u2019s death 18 months prior to the running of the statute of limitations.\u201d (278 Ill. App. 3d at 95.) This was not a situation, however, which was made worse by the passage of time. The critical point was when plaintiffs learned of Somers\u2019 death and the attorney determined the information was not accurate. Once that occurred, it made no difference whether 18 days passed or 18 months.\nHardimon involved a complaint which recited that plaintiff had been duly appointed a special administrator, although no such appointment had then been made and none was made prior to the running of the statute of limitations. What the court said in that case is equally applicable here. Section 2 \u2014 616(b) was adopted \" 'to implement the legislative intent to preserve causes of action including those sounding in wrongful death against loss by reason of technical rules of pleading.\u2019 \u201d Hardimon, 272 Ill. App. 3d at 120-21, 650 N.E.2d at 283, quoting Redmond, 65 Ill. App. 3d at 675, 382 N.E.2d at 100.\nIn Vaughn, there was no service on any defendant before the statute of limitations had run. In the present case, Marlyss Somers was a defendant in addition to Gene Somers, and there was service on Marlyss. Marlyss apparently also accepted the complaint which was to be served on Gene. Marlyss Somers apparently notified the insurance company which insured Gene and herself, and the attorney who represented Marlyss also represents the estate of Gene Somers. Special administrator Goodwin, in his deposition, admitted having knowledge of this suit prior to the April 14, 1994, running of the statute of limitations. In any event, notice to the substituted defendant is not a requirement under section 13 \u2014 209(c) of the Code.\nUnder both sections 2 \u2014 616(d) and 13 \u2014 209(c) of the Code, I would reverse the judgment of the trial court and remand so that the estate of Gene Somers could be added as a defendant.", "type": "dissent", "author": "PRESIDING JUSTICE COOK," } ], "attorneys": [ "Nicholas M. Schiro, of Doyle & Tuggle, of Danville, for appellants.", "Michael J. Tague, of Flynn, Palmer & Tague, of Champaign, for appellee." ], "corrections": "", "head_matter": "PHILIP AUGUSTUS et al., Plaintiffs-Appellants, v. ESTATE OF GENE SOMERS, Deceased, by and through Thomas Goodwin, Special Adm\u2019r for the Estate of Gene Somers, Decedent, Defendant-Appellee.\nFourth District\nNo. 4 \u2014 95 \u2014 0253\nOpinion filed February 23, 1996.\nCOOK, P.J., dissenting.\nNicholas M. Schiro, of Doyle & Tuggle, of Danville, for appellants.\nMichael J. Tague, of Flynn, Palmer & Tague, of Champaign, for appellee." }, "file_name": "0090-01", "first_page_order": 108, "last_page_order": 122 }