Behr v. Club Med, Inc.

546 N.E.2d 751, 190 Ill. App. 3d 396, 137 Ill. Dec. 806, 1989 Ill. App. LEXIS 1669
CourtAppellate Court of Illinois
DecidedNovember 1, 1989
Docket1—87—3289, 1—88—2465 cons.
StatusPublished
Cited by35 cases

This text of 546 N.E.2d 751 (Behr v. Club Med, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Behr v. Club Med, Inc., 546 N.E.2d 751, 190 Ill. App. 3d 396, 137 Ill. Dec. 806, 1989 Ill. App. LEXIS 1669 (Ill. Ct. App. 1989).

Opinion

PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

On July 23, 1982, plaintiff, Rita Behr, filed this action against the original defendant, Club Med, Inc. (CMI), a Delaware corporation, for personal injuries allegedly sustained at the Club Med resort in Cancun, Mexico, in January 1981. On October 3, 1984, plaintiff filed a fourth-amended complaint adding Club Mediterráneo, S.A. (CMSA), a French corporation, as a party defendant. On November 26, 1986, the trial court granted CMI’s motion for summary judgment. On September 15, 1987, the court granted CMSA’s motion for summary judgment. Thereafter, the trial court granted CMI’s motion to strike plaintiff’s fifth-amended complaint and denied plaintiff leave to file a sixth-amended complaint. Plaintiff appealed separately from the adverse orders in CMSA’s and CMI’s favor. The appeals have been consolidated.

Plaintiff’s original complaint alleged that, pursuant to a contract with “Club Med,” plaintiff became a guest at its Cancún resort from January 5 to January 12, 1981. It further alleged that sometime during her stay she ingested what was later discovered to be a toothpick while eating food at “Club Med” and that the toothpick had lodged in her liver. On April 9, 1984, CMI moved for summary judgment on the ground that CMSA owned and operated the Cancún resort. Plaintiff’s fourth-amended complaint alleged for the first time, and in the alternative, that in January 1981: (1) the Cancún resort was owned, operated and maintained either by CMI and, CMSA, by CMI or by CMSA. On September 15, 1987, the trial court granted CMSA leave to file the affirmative defense of the bar of the two-year statute of limitations applicable to personal injury actions (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 202) and granted its motion for summary judgment based on that defense.

In appealing the grant of summary judgment in CMSA’s favor, plaintiff contends that the requirements of section 2 — 616(d) of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 101 et seq.) were met in this case. Section 2 — 616(d) allows relation back of a cause of action adding a new defendant to the date of filing of an original complaint to avoid a limitations bar where: (1) the original complaint was timely filed; (2) the failure to originally join the new defendant was inadvertent; (3) service of summons was in fact had upon the person, his agent or partner; (4) the new defendant knew that the action was pending and grew out of a transaction or occurrence involving or concerning him before the limitations period expired; and (5) the cause of action asserted in the amended complaint grew out of the same transaction or occurrence set up in the original complaint. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 616(d).) At issue in this case are the second, third and fourth requirements of section 2— 616(d).

Asserting that she met the second requirement of section 2— 616(d), plaintiff argues that, contrary to the trial court’s conclusion, the failure to join CMSA until six months after CMI filed its summary judgment motion, alleging that CMSA owned and operated the Cancun resort, was excusable inadvertence, not inexcusable neglect. In support, she cites Bates v. Wagon Wheel Country Club, Inc. (1971), 132 Ill. App. 2d 161, 266 N.E.2d 343.

In Bates, the plaintiff filed a personal injury suit against the Wagon Wheel Lodge Hotel on April 24, 1968, approximately one month before the limitations period expired. On January 24, 1969, the attorney for the Wagon Wheel Country Club, Inc., and Wagon Wheel Enterprises, Inc., informed plaintiff’s counsel that he had sued the wrong defendant. On May 8, 1969, the latter two entities filed a special and limited appearance. At the May 15, 1969, hearing thereon, it was established that no such entity as Wagon Wheel Lodge Hotel existed and that the real parties in interest included Wagon Wheel Country Club, Inc., and Wagon Wheel Enterprises, Inc. After the special and limited appearance was granted on September 25, 1969, plaintiff filed an amended complaint against the latter two entities in early October 1969.

The Bates court was called upon to determine whether the plaintiff’s failure to join the proper defendants had been inadvertent. The defendants contended that plaintiff had acted unreasonably in failing to join them until approximately 8V2 months after being informed of his mistake in January 1969. In rejecting the argument, the court distinguished the Bates case from Fields v. 6125 Indiana Avenue Apartments, Inc. (1964), 47 Ill. App. 2d 55, 196 N.E.2d 485, in which the plaintiff had been informed of the true defendants eight months before the statute of limitations expired but failed to join them until its expiration. In contrast to Fields, the Bates court concluded that the plaintiff therein did not learn who the proper defendants were until May 15, 1969, by which time the statute had run by almost one year. The court found nothing unreasonable in the plaintiff’s two-week delay in joining the defendants, which it measured from September 25, when their special and limited appearance was granted, to early October 1969.

Thus, for reasons which it did not elaborate, the Bates court apparently concluded that the phone call from the correct defendant’s attorney to the plaintiff’s attorney did not put the plaintiff on notice of their identity. Although the Bates court’s finding of inadvertence essentially ignored that phone call, plaintiff argues that, measured against the 81/2-month delay in Bates, her delay of six months in joining CMSA, measured from the date of CMI’s motion for summary judgment, was also not unreasonable.

CMSA disagrees with plaintiff’s calculation of the delays in both Bates and this case. It notes the Bates court’s finding of only a two-week delay, not an eight-month delay, in joining the new defendants. Additionally, CMSA asserts that plaintiff was put on notice of its identity and existence for the first time on January 4, 1983, when CMI filed its motion to quash service for lack of jurisdiction. In support of that motion, CMI appended the affidavit of its president, Jacques Ganin. Therein, Ganin stated, inter alia:

“3. Club Med, Inc. is engaged in the business of wholesale and retail \sic\ in the United States, Canada and Puerto Rico of vacation packages, which include land accommodations at various Club Mediterranee resorts.”

CMSA further asserts that plaintiff was again notified of its existence on March 8, 1983, during the discovery deposition of Richard J. Garrick, the Midwest regional sales manager for CMI. We agree with CMSA, although not for the sole reason that it cites. During his deposition, Garrick was asked who owned “the Club Med vacation Villages.” He answered, “They are run by Club Mediterranee, S.A. The actual owning process is individual to each country that they are in.” He was next asked who owned the Cancún, Mexico, facility. CMSA quotes his answer thusly in its brief, “ T couldn’t say who owns it, but Club Med [referring to Club Mediterranee, S.A.] runs it.’ ”

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Bluebook (online)
546 N.E.2d 751, 190 Ill. App. 3d 396, 137 Ill. Dec. 806, 1989 Ill. App. LEXIS 1669, Counsel Stack Legal Research, https://law.counselstack.com/opinion/behr-v-club-med-inc-illappct-1989.