Faust v. Michael Reese Hospital & Medical Center

377 N.E.2d 1040, 61 Ill. App. 3d 233
CourtAppellate Court of Illinois
DecidedJuly 19, 1978
Docket77-601
StatusPublished
Cited by8 cases

This text of 377 N.E.2d 1040 (Faust v. Michael Reese Hospital & Medical Center) 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
Faust v. Michael Reese Hospital & Medical Center, 377 N.E.2d 1040, 61 Ill. App. 3d 233 (Ill. Ct. App. 1978).

Opinion

Mr. JUSTICE SIMON

delivered the opinion of the court:

This is a malpractice action filed against Michael Reese Hospital and Medical Center (Michael Reese), Dr. M. Goodfriend, a staff physician at Michael Reese, and others. The circuit court dismissed the complaint with prejudice as to Dr. Goodfriend only on the ground that plaintiff did not exercise the diligence required by Supreme Court Rule 103(b) (Ill. Rev. Stat. 1975, ch. 110A, par. 103(b)), in obtaining service on Dr. Goodfriend. Plaintiff appeals this ruling.

The complaint was filed and the summons was issued on March 18, 1975, the date on which the applicable statute of limitations would have expired. The sheriff’s return showed service on Dr. Goodfriend by delivering a copy to C. Trinidad at Michael Reese on April 8, 1975. Dr. Goodfriend then filed a motion to quash service on the grounds that Michael Reese is not her usual place of abode and that C. Trinidad is not a member of her household. On June 18,1975, the circuit court entered an order quashing the service on Dr. Goodfriend.

On June 20,1975, the plaintiff filed a notice of deposition, with proof of service, directed to the supervisor of records of Michael Reese, requesting the deponent to bring all books, records, memoranda and all listings which show the present or last-known addresses of Dr. Goodfriend. On August 16, 1975, Michael Reese advised plaintiff’s attorney that Dr. Goodfriend’s address was 2215 North Bassell Street, Chicago, Illinois. The information was erroneous as Dr. Goodfriend’s address was then 2215 North Bissell Street. Plaintiff’s counsel wrote a letter on August 24,1975, to Dr. Goodfriend addressed to the North Bassell Street address, inquiring as to where summons could be served on her without embarrassment. The letter was returned marked, “Not deliverable.”

Plaintiff filed interrogatories on July 15,1976, requesting Michael Reese to state the last-known address of Dr. Goodfriend. Michael Reese filed answers on July 30,1976, stating that until October 1975, Dr. Goodfriend’s address was 2215 North Bassell in Chicago. Early in August 1976, an alias summons was issued, directed to Dr. Goodfriend, 2215 North Bassell Street. On August 12, 1976, the sheriff made a return indicating that Dr. Goodfriend was not found. The sheriff had drawn a line through the “a” in the word “Bassell” in the address on the summons and substituted an “i”, spelling the word “Bissell.”

Plaintiff wrote to the postmaster of Chicago on September 22, 1975, December 14, 1975, and April 16, 1976, relying on the Freedom of Information Act (5 U.S.C. §552 (1970)), and requested the correct address of Dr. Goodfriend. The postmaster did not reply. Plaintiff’s attorney had a later telephone conversation with a representative of the main post office of Chicago to determine why there had been no response to the requests for Dr. Goodfriend’s address. Plaintiff’s counsel was advised to file a new request. Plaintiff’s counsel then sent a fourth letter on September 8,1976, and received a response on September 14, 1976, stating that Dr. Goodfriend’s address was 505 North Lake Shore Drive, Apt. 3512, Chicago, Illinois. On October 7,1976, a second alias summons was issued directed to Dr. Goodfriend at that address; it was served on her there on October 10, 1976.

During the year 1975, Dr. Goodfriend resided at 2215 North Bissell Street, Chicago, Illinois, and a telephone number at that address was listed in the 1975 Chicago telephone directory for Marlene Goodfriend. In February 1976, Dr. Goodfriend moved to 505 North Lake Shore Drive, Apartment 3512, Chicago, Illinois, and had a telephone number at that address listed in the 1976 Chicago telephone directory in the name of Marlene Goodfriend. Commencing in October 1975, Dr. Goodfriend maintained professional offices at 111 North Wabash Avenue, Chicago, Illinois. This address and the telephone number there were also listed in the 1976 Chicago telephone directory.

Supreme Court Rule 103(b) provides:

“If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 110A, par. 103(b).)

The purpose of this rule is to protect defendants from unnecessary delays in the service of process upon them (Karpiel v. LaSalle National Bank (1970), 119 Ill. App. 2d 157, 255 N.E.2d 61), and to safeguard against the undermining and circumvention of the statutes of limitation. (Kohlhaas v. Morse (1962), 36 Ill. App. 2d 158, 183 N.E.2d 16.) The rule does not set a specific time limit within which a defendant must be served; instead, it puts the burden upon the plaintiff to show that he has exercised reasonable diligence to obtain service. (Mosley v. Spears (1970), 126 Ill. App. 2d 35, 261 N.E.2d 510.) Each case must be judged and evaluated on its own facts and circumstances. (Alsobrook v. Cote (1971), 133 Ill. App. 2d 261, 273 N.E.2d 270.) However, courts have established certain criteria in determining whether a plaintiff has used reasonable diligence: (1) the length of time used to obtain service of process; (2) the activities of the plaintiff; (3) any knowledge on the part of the plaintiff of the defendant’s location; (4) the ease with which the defendant’s whereabouts could have been ascertained; (5) the actual knowledge by the defendant of the pendency of the action as the result of ineffective service; and (6) special circumstances which would affect efforts made by the plaintiff. See Alsobrook, at 264, and cases cited therein.

As pointed out above, in this case the plaintiff filed suit on the day on which the statute of limitations would have expired. Dr. Goodfriend was not served until 20 months later. Dismissals pursuant to Rule 103(b) have been upheld where the time between the expiration of the statute of limitations and service on the defendant was less than 20 months. (See Pisciotto v. National Heater Co. (1974), 21 Ill. App. 3d 73, 315 N.E.2d 121; Roberts v. Underwood (1971), 132 Ill. App. 2d 439, 270 N.E.2d 547; Karpiel.) Plaintiff contends however that dismissal was improper because she did not know where to find Dr. Goodfriend; her efforts to locate Dr. Goodfriend evidenced reasonable diligence to obtain service; Dr. Goodfriend had actual knowledge of the pendency of the suit; and codefendant Michael Reese supplied her with an erroneous address for Dr. Goodfriend. We do not agree.

After the order of June 18, 1975, quashing service on Dr. Goodfriend, plaintiff limited her efforts to locate Dr.

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377 N.E.2d 1040, 61 Ill. App. 3d 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faust-v-michael-reese-hospital-medical-center-illappct-1978.