NO. 4-06-0415 Filed: 12/15/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
JAMES GRIFFIN, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Moultrie County BRENDA R. WILLOUGHBY, ) No. 05L7 Defendant-Appellee. ) ) 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. The trial court dismissed the suit with
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 limita-
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 com-
plaint was barred by the one-year limitations period contained in
section 8-101 of the Tort Immunity Act. 745 ILCS 10/8-101 (West
Supp. 2003). 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 com-
plaint, 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 communica-
tion occurred from late July 2004 to early December 2004. She
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. King
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
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
chiropractor who had treated plaintiff. In December 2004,
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 autho- rized to settle this case for $150,000.00. Please advise."
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
he received a letter from King dated May 18, 2004. That letter 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 com-
pany'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 defen-
dant'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. The court entered a written order on
January 9, 2006. Later that month, plaintiff filed a motion to
reconsider, which the court denied. In April 2006, plaintiff
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." Lamar, 355 Ill. App. 3d at 359, 823
N.E.2d at 616. 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." Sperandeo v.
- 6 - 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 investi-
gation 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." Ferguson v. McKenzie, 202 Ill. 2d
304, 313, 780 N.E.2d 660, 665 (2001). "Thus, in order for a
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 em-
ployee only in his individual capacity." Sperandeo, 365 Ill.
App. 3d at 694, 850 N.E.2d at 397. Plaintiff makes two arguments
as to why section 8-101 should not apply.
1. Quasi Immunity Plaintiff first contends the limitations period con-
tained 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 determin-
ing 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. Currie, 148
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
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. Racich, 241 Ill. App. 3d at 337, 608 N.E.2d at 972. The trial court
dismissed the plaintiff's complaint with prejudice based on
section 8-101's one-year limitations period. Racich, 241 Ill.
App. 3d at 337, 608 N.E.2d at 972. 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. Racich, 241 Ill. App. 3d at 338, 339, 608
N.E.2d at 973, 974. The appellate court found the trial court
correctly determined the plaintiff's cause of action was time-
barred pursuant to section 8-101 and noted whether the defendant
would have been entitled to invoke a sovereign-immunity defense
was a separate question. Racich, 241 Ill. App. 3d at 339-40, 608
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. How-
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-in-
jury 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. Tosado,
188 Ill. 2d at 188, 720 N.E.2d at 1077. A plurality of the
Illinois Supreme Court concluded the one-year limitations period
in section 8-101 of the Tort Immunity Act governs medical-mal-
practice 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. Tosado, 188 Ill. 2d at
191, 720 N.E.2d at 1078. 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. Tosado, 188 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
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 §51.05, at 174 (5th ed. 1992)) and section
8-101 of the Tort Immunity Act "was designed to apply broadly to
any possible claim against a local governmental entity and its
employees" (Tosado, 188 Ill. 2d at 199, 720 N.E.2d at 1083
(Heiple, J., specially concurring)).
Just over a year later, the court faced a similar issue
in Ferguson, 202 Ill. 2d at 304, 306-07, 780 N.E.2d at 661-62:
whether section 8-101 of the Tort Immunity Act or section 13-
212(b) of the Code applied in a medical-malpractice action where
the decedent's daughter was a minor at the time of the alleged
malpractice but over 19 years old when the suit was brought on
her behalf against Cook County and a county hospital's employees.
Section 13-212(b) provides that where a person entitled to bring
a medical-malpractice action was a minor at the time of the
occurrence that allegedly caused the injury or death, the action
must be brought within eight years of the occurrence but, in any
event, no later than the person's twenty-second birthday. 735
ILCS 5/13-212(b) (West 2004).
The opinion adopted the reasoning from both Tosado's plurality opinion and the special concurrences to conclude that
section 8-101 applied. Ferguson, 202 Ill. 2d at 312, 780 N.E.2d
at 665. Justice McMorrow again dissented, adhering to her
position in Tosado and urging that employing the two positions in
- 11 - Tosado was "unpersuasive and may result in further uncertainty
with respect to the appropriate analysis to be employed."
Ferguson, 202 Ill. 2d at 315-16, 780 N.E.2d at 667 (McMorrow, J.,
dissenting, joined by Harrison, C.J., and Kilbride, J.).
The supreme court addressed this uncertainty in
Paszkowski, 213 Ill. 2d 1, 820 N.E.2d 401, which Justice McMorrow
authored. The question before the court was whether section 8-
101 of the Tort Immunity Act or section 13-214(a) of the Code,
which provides for a four-year limitation period for
construction-related causes of action, applied to a negligence
suit filed in early 2000 regarding injuries the plaintiff alleg-
edly sustained in 1998 while working on a district construction
project. Paszkowski, 213 Ill. 2d at 3, 8, 820 N.E.2d at 403,
406. Paszkowski held section 8-101 of the Tort Immunity Act
controlled over section 13-214(a) of the Code:
"Regardless of whether section 13-214(a) is
more specific than section 8-101 ***, it
is the legislature's intent that is of fore-
most importance. [Citations.] ***
According to Ferguson, 'the legislature in- tended that section 8-101 of the [Tort
Immunity] Act apply "broadly to any possible
claim against a local governmental entity and
its employees."' (Emphases added.)
[Citation.]" Paszkowski, 213 Ill. 2d at 12-13,
820 N.E.2d at 408.
- 12 - The court concluded that "the comprehensive protection afforded
by section 8-101 necessarily controls over other statutes of
limitation or repose." Paszkowski, 213 Ill. 2d at 13, 820 N.E.2d
at 408.
Paszkowski clearly establishes that section 8-101 of
the Tort Immunity Act applies to plaintiff's action. Accord-
ingly, plaintiff's action was time barred and the trial court
properly dismissed it on that basis.
B. Equitable Estoppel
Alternatively, plaintiff argues defendant should be
equitably estopped from asserting the limitations period.
Equitable estoppel precludes a limitations defense "'where [an
insurer's] actions during negotiations are such as to lull the
[plaintiff] into a false sense of security, thereby causing him
to delay the assertion of his rights.'" Mitchell, 343 Ill. App.
3d at 285-86, 796 N.E.2d at 621, quoting Hermanson v. Country
Mutual Insurance Co., 267 Ill. App. 3d 1031, 1035, 642 N.E.2d
857, 860 (1994). Equitable estoppel in this context requires six
elements: (1) the insurer misrepresented or concealed material
facts through its words or conduct; (2) the insurer knew at the
time it made the representations that they were not true; (3) the
plaintiff did not know the truth about the representations both
when they were made and when he acted on them; (4) the insurer
intended or reasonably expected the plaintiff to act upon its
conduct or representations; (5) the plaintiff, in good faith,
reasonably relied upon the misrepresentation to his detriment;
- 13 - (6) the plaintiff would be prejudiced if the insurer is permitted
to assert the limitations period. See Augustus v. Estate of
Somers, 278 Ill. App. 3d 90, 100, 662 N.E.2d 138, 145 (1996),
citing Vaughn v. Speaker, 126 Ill. 2d 150, 162-63, 533 N.E.2d
885, 890 (1989).
"Conduct by [a] defendant's insurer can, in some
instances, give rise to 'an apparent intent to pay the claim'
which will estop a defendant from raising the statute of limita-
tions as a defense." Augustus, 278 Ill. App. 3d at 100, 662
N.E.2d at 145, quoting Vaughn, 126 Ill. 2d at 165, 533 N.E.2d at
891. However, "'[c]ases in which an insurer's conduct is found
to amount to estoppel typically involve a concession of liability
by the insurer, advance payments by the insurer to the plaintiff
in contemplation of eventual settlement, and statements by the
insurer which encourage the plaintiff to delay filing his ac-
tion.'" Mitchell, 343 Ill. App. 3d at 286, 796 N.E.2d at 621,
quoting Foamcraft, Inc. v. First State Insurance Co., 238 Ill.
App. 3d 791, 795, 606 N.E.2d 537, 540 (1992). "[T]he mere
pendency of negotiations conducted in good faith is insufficient
to give rise to estoppel." Viirre v. Zayre Stores, Inc., 212 Ill. App. 3d 505, 515, 571 N.E.2d 209, 216 (1991). For example,
in Viirre, the defendant was not equitably estopped from assert-
ing the statute of limitations as a defense even though its
insurer investigated the plaintiff's claim, collected the plain-
tiff's medical bills and records, sent a check for some of the
plaintiff's medical expenses, referred the case for mediation,
- 14 - and hired attorneys to conduct discovery. Viirre, 212 Ill. App.
3d at 513-14, 571 N.E.2d at 215
Viewing the evidence regarding the communication
between plaintiff's attorney and the insurance company's claim
representative in the light most favorable to plaintiff, we
cannot infer that the insurance company's conduct was calculated
to lull plaintiff into a reasonable belief that plaintiff's claim
would be settled without suit. Nothing suggests the insurance
company misrepresented its position or intended or reasonably
expected plaintiff to delay filing suit regarding the collision.
Plaintiff did not allege in his amended complaint and Geisler did
not attest in his affidavit that either Kalfen or King conceded
liability for the collision or indicated the insurance company
intended to settle plaintiff's claim. Rather, the insurance
company's failure to respond to plaintiff's settlement demand
could just as easily be interpreted to mean it was still consid-
ering the demand or did not intend to pay it.
Geisler's statement that no one from the insurance
company contended it would assert the Tort Immunity Act's limita-
tions period until after the period had run does not show the
insurance company intended or expected plaintiff to delay filing
suit. The affidavits reveal Geisler did not know school-bus
collisions were covered by the one-year limitations period.
Nothing indicates that the insurance company knew of Geisler's
mistake concerning the applicable limitations period, and it had
no duty to inform Geisler of the applicable period. Therefore,
- 15 - the trial court did not err in rejecting plaintiff's equitable-
estoppel argument and dismissing plaintiff's amended complaint.
C. Equitable Tolling
Finally, plaintiff urges the limitations period was
equitably tolled. The Illinois Supreme Court wrote in Clay v.
Kuhl, 189 Ill. 2d 603, 614, 727 N.E.2d 217, 223 (2000), that
"[e]quitable tolling of a statute of limitations may be appropri-
ate if the defendant has actively misled the plaintiff, or if the
plaintiff has been prevented from asserting his or her rights in
some extraordinary way, or if the plaintiff has mistakenly
asserted his or her rights in the wrong forum." In Fidelity
National Title Insurance Co. of New York v. Howard Savings Bank,
436 F.3d 836, 839 (7th Cir. 2006), Judge Posner noted that
whether Illinois recognizes equitable tolling is still unresolved
because the Illinois cases mentioning the term seem to mean
equitable estoppel. However, Judge Posner guessed that Illinois
would accept the "commonplace" and "sensible" tolling doctrine.
Fidelity, 436 F.3d 839.
According to the Seventh Circuit, equitable tolling,
unlike equitable estoppel, applies even when the defendant is
faultless. Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996). Where the plaintiff cannot reasonably be expected to sue in time
because of disability, irremediable lack of information, or other
circumstances beyond his control, the statute of limitations will
be tolled until he is able through the exercise of proper dili-
gence to file his suit. Miller, 77 F.3d at 191. For example,
- 16 - equitable tolling postpones the deadline for suing if a plaintiff
cannot discover his injurer's identity within the statutory
period despite the exercise of reasonable diligence. Fidelity,
436 F.3d at 839.
Under either the formulation previously articulated by
the Illinois Supreme Court or the Seventh Circuit's approach,
plaintiff's equitable-tolling argument fails. No extraordinary
circumstances prevented him from filing suit. Making a settle-
ment demand alone does not toll the limitations period. Plain-
tiff's attorney's apparent mistake regarding the applicable
limitations period also does not implicate equitable tolling; his
lack of information was not "irremediable" as he could have
discovered the correct filing deadline with some further re-
search.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
STEIGMANN, P.J., and MYERSCOUGH, J., concur.
- 17 -