Griffin v. Willoughby

SUPREME COURT CASES

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State: Illinois

Court: 4th District Appellate

Docket No: 4-06-0415 Rel

Case Date: 12/15/2006

Preview:NO. 4-06-0415 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT JAMES GRIFFIN, Plaintiff-Appellant, v. BRENDA R. WILLOUGHBY, Defendant-Appellee.

Filed: 12/15/06

) Appeal from ) Circuit Court of ) Moultrie County ) No. 05L7 ) ) Honorable ) Dan L. Flannell, ) Judge Presiding. _________________________________________________________________ JUSTICE COOK delivered the opinion of the court: On April 26, 2005, plaintiff, James Griffin, filed a complaint against defendant, school-bus driver Brenda R. Willoughby, alleging her negligence in a collision that occurred on February 18, 2004. prejudice. On appeal, plaintiff contends the one-year limitations period found in section 8-101 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/8-101 (West Supp. 2003)) does not apply to his action. Alternatively, plaintiff urges defendant was equitably estopped from asserting the limitations period and the limitations period was equitably tolled. Because section 8-101's one-year limitaThe trial court dismissed the suit with

tions period applies and neither equitable estoppel nor equitable tolling precludes its enforcement, we affirm. I. BACKGROUND On April 26, 2005, plaintiff filed a complaint against defendant, alleging defendant's negligence in a collision that

occurred on February 18, 2004, between plaintiff's vehicle and the school bus defendant was driving. Defendant moved to dismiss

pursuant to section 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2004)), urging plaintiff's complaint was barred by the one-year limitations period contained in section 8-101 of the Tort Immunity Act. Supp. 2003). 745 ILCS 10/8-101 (West

In an accompanying affidavit, defendant attested

she was transporting students in the course of her employment with the Okaw Valley Community Unit School District (school district) at the time of the collision. On October 3, 2005, plaintiff filed an amended complaint, adding allegations that he delayed filing suit because he relied on statements made by Indiana Insurance Company (insurance company), the school district's insurance carrier. Plaintiff

claimed his attorney communicated with the insurance company at various times between March 15, 2004, and April 20, 2005. Plaintiff asserted the insurance company led him to believe it intended to settle the claim for a reasonable amount but needed more information for its file. He alleged that on April 20,

2005, the insurance company's adjuster, Janice King, announced her company was denying his claim because he did not file suit within one year of the collision. Defendant again moved to dismiss. In an attached

affidavit, King attested that she began handling plaintiff's claim on May 17, 2004, and tried to call plaintiff's attorney, Gary Geisler, on several occasions before receiving a letter from - 2 -

Geisler dated July 21, 2004.

King stated no further communicaShe

tion occurred from late July 2004 to early December 2004.

received a letter from Geisler dated December 1, 2004, but then had no further communication with Geisler until April 20, 2005, when she called him to inquire whether he had filed suit. attested Geisler said he had not been aware that school-bus accidents were governed by a one-year limitations period. King attached to her affidavit the two letters from Geisler. In the July letter, Geisler wrote to update King King

regarding the status of plaintiff's injuries, stating he would forward plaintiff's medical bills and records when he received them. Geisler provided the names of three physicians and a In December 2004,

chiropractor who had treated plaintiff.

Geisler informed King that plaintiff had continuing pain and injuries, his present medical bills totaled $17,828.44, and the workers' compensation lien was $15,864.69. Geisler also named

another physician and attached a list of health-care providers and total charges for each to date. He closed, "We are authoPlease advise."

rized to settle this case for $150,000.00.

King also attached three letters that predated her assignment to the claim. In a letter dated March 15, 2004,

Geisler wrote to inform the insurance company that he represented plaintiff and inquired about the policy limits for the collision. Senior claim representative Pam Kalfen acknowledged the receipt of Geisler's attorney's lien in a letter dated March 22, 2004. Kalfen asked plaintiff to execute a medical- and wage-authoriza- 3 -

tion form and to provide the names and addresses of plaintiff's treating physicians. Kalfen requested that Geisler forward

plaintiff's "supporting material," writing "When we have received this information, we will be in contact with your office." Finally, in a letter dated April 7, 2004, Geisler wrote that he was enclosing plaintiff's medical records for services related to the collision, advising, "I will forward the medical bills and summary once we have received them ***." He again asked the

insurance company to disclose the policy limits. Plaintiff responded to defendant's motion with Geisler's affidavit. Geisler attested that plaintiff received a

letter dated February 20, 2004, from the insurance company, which resulted in correspondence between Geisler and Kalfen in letters dated March 15, March 22, and April 7, 2004. Geisler stated

Kalfen called him on April 15, 2004, to tell him that the policy limit was $1 million for bodily injury and that Geisler should forward plaintiff's medical records and bills. Geisler attested That letter

he received a letter from King dated May 18, 2004.

simply advised King was the new adjuster handling the claim. Geisler disagreed that he had no contact with the insurance company between his July and December 2004 letters. Rather, he stated he mailed almost all of plaintiff's medical bills and records to King on September 7, 2004; he did not include the records from Decatur Memorial Hospital because he had not yet received them. Geisler attested he followed up his

December 1, 2004, letter with a phone call on December 17, 2004, - 4 -

leaving a message to inquire about "the status of the case in response to [plaintiff's] settlement demand." Geisler wrote to

King on March 21, 2005, to "inquire about [the insurance company's] position about the settlement of the case." Geisler attested that King's phone call of April 20, 2005, was the first time anyone with the insurance company contended it was asserting the Tort Immunity Act's one-year limitations period. Geisler explained he had been awaiting the

insurance company's response to his last three letters and phone call and had assumed it was in the process of responding with a settlement offer. Geisler attached copies of all the correspon-

dence he referenced in his affidavit. On December 23, 2005, the trial court granted defendant's motion to dismiss because the limitations period from the Tort Immunity Act applied to plaintiff's cause of action. The

court also found plaintiff did not establish equitable estoppel because (1) plaintiff did not show any conduct or action by defendant or the insurance company amounting to misrepresentation or concealment of a material fact and (2) plaintiff did not show any conduct by defendant or the insurance company that could have been intended or reasonably expected to cause plaintiff to delay filing his cause of action. January 9, 2006. The court entered a written order on

Later that month, plaintiff filed a motion to In April 2006, plaintiff

reconsider, which the court denied.

filed a second motion to reconsider pursuant to the "new" legal theory of equitable tolling. The court denied that motion as - 5 -

well.

This appeal followed. II. ANALYSIS A. Section 8-101 "Under section 2-619(a)(5) of the Code, a defendant is

entitled to a dismissal if the 'action was not commenced within the time limited by law.'" Lamar Whiteco Outdoor Corp. v. City

of West Chicago, 355 Ill. App. 3d 352, 359, 823 N.E.2d 610, 616 (2005), quoting 735 ILCS 5/2-619(a)(5) (West 2002). "A motion to

dismiss pursuant to section 2-619 of the Code admits the legal sufficiency of the complaint but asserts affirmative matter to avoid or defeat the claim." N.E.2d at 616. Lamar, 355 Ill. App. 3d at 359, 823

When ruling on such a motion, a court must

interpret all pleadings and supporting documents in the light more favorable to the nonmoving party. Paszkowski v. Metropoli-

tan Water Reclamation District of Greater Chicago, 213 Ill. 2d 1, 5, 820 N.E.2d 401, 404 (2004). Both the decision to dismiss a

complaint and the interpretation of a statute are subject to de novo review. Paszkowski, 213 Ill. 2d at 6, 820 N.E.2d at 404.

"[T]he question on appeal is whether there is a genuine issue of material fact and whether [a] defendant is entitled to judgment as a matter of law." Mitchell v. State Farm Fire & Casualty Co.,

343 Ill. App. 3d 281, 284, 796 N.E.2d 617, 619 (2003). "[S]ection 9-102 [of the Tort Immunity Act] clearly requires a local public entity to pay any tort judgment or settlement for compensatory damages for which its employee acting within the scope of his employment is liable." - 6 Sperandeo v.

Zavitz, 365 Ill. App. 3d 691, 694, 850 N.E.2d 394, 397 (2006). However, section 8-101 of the Tort Immunity Act provides "[n]o civil action *** may be commenced *** against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued." 745 ILCS 10/8-101(a) (West Supp. 2003). The

purpose of the limitation period "is to encourage early investigation into a claim *** when the matter is still fresh, witnesses are available, and conditions have not materially changed. Such

an investigation permits prompt settlement of meritorious claims and allows governmental entities to plan their budgets in light of potential liabilities." 304, Ferguson v. McKenzie, 202 Ill. 2d "Thus, in order for a

313, 780 N.E.2d 660, 665 (2001).

plaintiff to recover against a county employee acting within the scope of his employment, the plaintiff must file suit within one year, even if he is seeking to recover against the county employee only in his individual capacity." App. 3d at 694, 850 N.E.2d at 397. Sperandeo, 365 Ill.

Plaintiff makes two arguments

as to why section 8-101 should not apply. 1. Quasi Immunity Plaintiff first contends the limitations period contained in section 8-101 is a "quasi immunity," citing no legal authority for that proposition but offering an analysis akin to that used to determine whether sovereign immunity shields a state employee. Plaintiff urges section 8-101 does not apply to his

action against defendant because her alleged negligence arose - 7 -

from her operation of a motor vehicle, and she was under a legal duty to exercise ordinary care in that regard, irrespective of her employment by the school district. Plaintiff's position is clearly based on Currie v. Lao, 148 Ill. 2d 151, 159, 592 N.E.2d 977, 980 (1992), where the Illinois Supreme Court concluded the proper inquiry in determining whether sovereign immunity shields a state employee from liability for on-the-job negligence is to analyze the source of the duty the employee is charged with breaching. In Currie, the

court noted that claims based on a state employee's negligent operation of an automobile are generally outside the doctrine of sovereign immunity because negligence that arises from the ordinary operation of a motor vehicle is based on the breach of the duties every driver owes to every other driver. Ill. 2d at 160, 592 N.E.2d at 980-81. Racich v. Anderson, 241 Ill. App. 3d 336, 608 N.E.2d 972 (1993), demonstrates plaintiff's focus on the nature of defendant's actions and accompanying duties is misplaced. In Currie, 148

that case, the plaintiff filed a complaint against the defendant in her individual capacity nearly 18 months after the school bus she was driving collided with the plaintiff's vehicle. 241 Ill. App. 3d at 337, 608 N.E.2d at 972. Racich,

The trial court

dismissed the plaintiff's complaint with prejudice based on section 8-101's one-year limitations period. App. 3d at 337, 608 N.E.2d at 972. Racich, 241 Ill.

On appeal, the plaintiff

cited Currie and argued his suit charged the defendant with - 8 -

breaching a duty imposed on her independent of her employment as a school-bus driver. N.E.2d at 973, 974. Racich, 241 Ill. App. 3d at 338, 339, 608 The appellate court found the trial court

correctly determined the plaintiff's cause of action was timebarred pursuant to section 8-101 and noted whether the defendant would have been entitled to invoke a sovereign-immunity defense was a separate question. N.E.2d at 974. Plaintiff's contention essentially is that if defendant would not be immune for his actions, the limitations period in section 8-101 of the Tort Immunity Act should not apply. HowRacich, 241 Ill. App. 3d at 339-40, 608

ever, Racich demonstrates that the limitations period and the likely success of an immunity defense are not connected. Plain-

tiff's contention that section 8-101 is a "quasi immunity" to which defendant is not entitled is without merit. 2. Two-Year Statute of Limitations Section 13-202 of the Code provides that personal-injury actions must be commenced within two years after the cause of action accrued. 735 ILCS 5/13-202 (West 2004). Plaintiff

argues the one-year limitations period in section 8-101 and the two-year limitations period in section 13-202 both potentially apply; focusing on the nature of the cause of action, rather than solely on defendant's status as an employee of a public entity, reveals section 13-202 is more specific to the present case. Plaintiff's argument rests on the dissent authored by Justice McMorrow in Tosado v. Miller, 188 Ill. 2d 186, 720 N.E.2d - 9 -

1075 (1999) (McMorrow, J., dissenting, joined by Rathje, J.). Tosado involved two medical- malpractice suits against county hospitals and their employees, consolidated on appeal after the trial courts denied the defendants' motions to dismiss. 188 Ill. 2d at 188, 720 N.E.2d at 1077. Tosado,

A plurality of the

Illinois Supreme Court concluded the one-year limitations period in section 8-101 of the Tort Immunity Act governs medical-malpractice cases brought against local governmental entities and their employees, not the two-year limitations period for bringing medical-malpractice actions provided for in section 13-212(a) of the Code. Tosado, 188 Ill. 2d at 195-96, 720 N.E.2d at 1080-81. Justice Miller, joined by Justice Bilandic, found that because either section 13-212(a) of the Code or section 8-101 of the Tort Immunity Act could apply to the plaintiffs' actions in the absence of the other, the appropriate inquiry was which of the statutes more specifically applied. 191, 720 N.E.2d at 1078. Tosado, 188 Ill. 2d at

To answer that question, Justice Miller

focused on the nature of the defendants, rather than the type of cause of action, and concluded section 8-101 of the Tort Immunity Act was more specific to the case before the court. Ill. 2d at 194, 720 N.E.2d at 1080. Justice Heiple and Chief Justice Freeman, writing separately, agreed section 8-101 applied but disagreed the defendants' status was determinative. Rather, they noted "this Tosado, 188

is one of those instances where 'the legislature intended to make the general act controlling'" (Tosado, 188 Ill. 2d at 199, 720 - 10 -

N.E.2d at 1082 (Heiple, J., specially concurring), quoting Stone v. Department of Employment Security Board, 151 Ill. 2d 257, 266, 602 N.E.2d 808, 812 (1992), quoting 2B N. Singer, Sutherland on Statutory Construction

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