NO. 4-03-0887

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

Plaintiff, Connie K. Fassero, was involved in an automobile accident and filed a personal injury suit against the personwhom she thought was the driver of the vehicle but who instead wasthe owner of the vehicle. Defendant moved to dismiss plaintiff'scomplaint, contending he was not a proper party. Plaintiff laterlearned defendant was not the driver and requested leave to amendafter the expiration of the statute of limitations. The trial courtdenied her motion to amend and granted defendant's motion to dismiss. We reverse and remand.

I. BACKGROUND

On April 7, 2001, plaintiff's vehicle was struck by avehicle driven by Todd Turigliatto. Plaintiff said that at thescene, Todd identified himself as his brother, Thomas Turigliatto,the owner of the vehicle. Todd denied plaintiff's assertion andclaimed she must have misunderstood. Todd said he mentioned hisbrother's name to plaintiff at the scene either in reference to beingthe owner or insured of the vehicle.

Randall Emery, a deputy sheriff for the Macoupin Countysheriff's department, responded to the scene of the accident. According to Deputy Emery's accident report, the driver was ToddTurigliatto and the owner was Thomas Turigliatto. Plaintiff said shedid not receive a copy of the accident report at the scene and didnot recall receiving it in the mail as Deputy Emery told her shewould. Todd said he received a copy of the accident report at thescene.

Thomas was served by substitute service on his mother onApril 8, 2003, with a summons and the complaint. Thomas and Toddlived together with their mother. Thomas saw the summons when hearrived home from work that evening and showed it to his brother,Todd.

On May 2, 2003, plaintiff filed a motion for leave toamend her complaint claiming that (1) she intended to sue Todd; (2)Todd received timely notice of the suit pursuant to Supreme CourtRule 103(b) (177 Ill. 2d R. 103(b)); (3) Todd would not sufferprejudice in defending the action and knew, or should have known,that but for the mistake, the action would have been originallybrought against him; and (4) the claim alleged in the amended pleading arose from the same facts as those alleged in the originalpleading. Todd was served the same day plaintiff's motion was filed.

On May 5, 2003, Thomas filed a motion to dismiss, claiminghe was not a proper party to the suit as he was not the driver of thevehicle as plaintiff alleged in her complaint. Attached to themotion was a copy of the accident report, listing Todd as the driverand Thomas as the owner of the vehicle involved.

On September 25, 2003, the trial court denied plaintiff'smotion for leave to amend, finding that because plaintiff sued thewrong party, it was a case of mistaken identity governed by section2-616(d) of the Code of Civil Procedure (735 ILCS 5/2-616(d) (West2002)), not misnomer. The court also relied on the fact that anaccident report existed and indicated the driver of the vehicle wasTodd, not Thomas. This appeal followed.

II. ANALYSIS

A. Misnomer or Mistaken Identity

A central issue in this case is whether the relation-backdoctrine applies. If this is a case of a misnomer, the relation-backdoctrine applies, and the amended complaint naming the proper defendant is considered filed upon the filing date of the original complaint. Vaughn v. Speaker, 126 Ill. 2d 150, 158-59, 533 N.E.2d 885,888-89 (1988). Service upon the misnamed defendant after the statuteof limitations has expired does not bar the suit. Vaughn, 126 Ill.2d at 158, 533 N.E.2d at 888. If this is a case of mistaken identity, the relation-back doctrine does not apply unless the factorsset forth in section 2-616(d) are satisfied. Vaughn, 126 Ill. 2d at159, 533 N.E.2d at 889. If the factors are not satisfied, plaintiffis required to have sued the proper defendant within the applicablestatute of limitations. Vaughn, 126 Ill. 2d at 159, 533 N.E.2d at889.

Misnomer applies in those cases where the proper party orreal party in interest is sued under the wrong name. Thielke v.Osman Construction Corp., 129 Ill. App. 3d 948, 950, 473 N.E.2d 574,576 (1985). "A misnomer occurs where the plaintiff brings an actionand serves summons upon the party intended to be made the defendant,thus giving actual notice of the lawsuit to the real party in interest, but the process and complaint do not refer to the person by hiscorrect name." Shaifer v. Folino, 272 Ill. App. 3d 709, 713, 650N.E.2d 594, 597 (1995) (First District). The misnomer rule is anarrow one and applies only where a plaintiff brings an action and asummons is served upon a party intended to be made a defendant. Zitov. Gonzalez, 291 Ill. App. 3d 389, 392, 683 N.E.2d 1280, 1283 (1997)(First District).

In contrast, mistaken identity is when the wrong party issued. Thielke, 129 Ill. App. 3d at 951, 473 N.E.2d at 576. A caseof mistaken identity is governed by section 2-616(d) of the CivilCode of Procedure (735 ILCS 5/2-616(d) (West 2002)), which provides:

"A cause of action against a person notoriginally named a defendant is not barred bylapse of time under any statute or contractprescribing or limiting the time within whichan action may be brought or right asserted, ifall the following terms and conditions are met: (1) the time prescribed or limited had not expired when the original action was commenced;(2) the person, within the time that the actionmight have been brought or the right assertedagainst him or her plus the time for servicepermitted under Supreme Court Rule 103(b), received such notice of the commencement of theaction that the person will not be prejudicedin maintaining a defense on the merits and knewor should have known that, but for a mistakeconcerning the identity of the proper party,the action would have been brought against himor her; and (3) it appears from the originaland amended pleadings that the cause of actionasserted in the amended pleading grew out ofthe same transaction or occurrence set up inthe original pleading, *** even though the person was not named originally as a defendant. For the purpose of preserving the cause of action under those conditions, an amendment adding the person as a defendant relates back tothe date of the filing of the original pleadingso amended."

We first note that Public Act 92-116, effective January 1,2002, changed this statutory section. Pub. Act 92-116,