Levine v. EBI, LLC
39 N.E.3d 1
Ill. App. Ct.2013Background
- Susan and Marc Levine sued Interpore Cross International in 2009 for injuries from a March 2007 operation where the surgeon lacked drivers/tools; EBI was designated a respondent in discovery and later named as a defendant in an amended complaint filed in 2011.
- EBI’s discovery responses claimed it did not know who bore responsibility for supplying the missing instruments; Levines later learned EBI should have supplied them.
- Dr. Shapiro’s March 5, 2007 operation involved a representative from the responsible company who attended the surgery and stated the driver was not in the set.
- Dr. Shapiro’s report noted the company failed to provide the necessary drivers and that several options were tried before abandoning the procedure.
- The trial court dismissed the amended complaint against EBI as untimely and denied relief under Rule 304(a); Levines appealed.
- The appellate court reversed in part, holding that EBI’s fraudulent concealment did not toll the limitations period under 13-215, but equitably estoppel could apply, remanding for further proceedings on the amended complaint.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 304(a) language was properly added and valid for appeal | Levines contend proper Rule 304(a) finding. | EBI argues the finding was improper. | Yes, within discretion; no abuse. |
| Whether 13-215 fraudulent concealment extends time to sue | Levines claim concealment extended the period. | EBI asserts no concealment of the cause of action. | Fraudulent concealment does not extend here. |
| Whether equitable estoppel applies to bar statute of limitations | Levines allege EBI lied in discovery and should be estopped. | EBI argues no estoppel due to lack of waiver or reliance. | Equitable estoppel applies; remand for counter-evidence. |
Key Cases Cited
- Pratt v. Sears Roebuck & Co., 71 Ill. App. 3d 825 (Ill. App. 1979) (applies to fraudulent concealment of causes of action, not identity of tortfeasors)
- Guebard v. Jabaay, 65 Ill. App. 3d 255 (Ill. App. 1978) (limits to concealment of cause of action; does not extend period for identity)
- Vaughn v. Speaker, 126 Ill. 2d 150 (Ill. 1988) (elements of equitable estoppel including misrepresentation and reliance)
- Van Hulle v. State Farm Mutual Automobile Insurance Co., 44 Ill. 2d 227 (Ill. 1969) (estoppel considerations in misrepresentation cases)
- Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112 (Ill. 1993) (standard for reviewing 2-619 dismissals; de novo review)
- Czarobski v. Lata, 227 Ill. 2d 364 (Ill. 2008) (construction of pleadings and support on appeal; favorable view to plaintiff)
- Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32 (Ill. 2004) (summary-judgment-like treatment on 2-619 appeal)
- Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493 (Ill. 2000) (waiver vs. jurisdiction; equity considerations in relief)