Wells v. Lueber
358 N.E.2d 293
Ill. App. Ct.
1976
Check Treatment
Mr. PRESIDING JUSTICE KARNS

delivered the opinion of the court:

Thе plaintiff, Margaret F. Wells, filed a complaint in the Circuit Court of Madison County against the defendants, Janе Lueber and Jan Mulligan, executors of the estate of Orville A. Winet, deceased. In response, defendants filed a motion to dismiss, alleging that plaintiff’s cause of action was barred by the statute of limitаtions. The circuit court issued an order denying defendant’s motion, and we granted leave to appeal pursuant to Supreme Court Rule 308(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 308(a)).

The plaintiff and Orville A. Winet were involvеd in an automobile accident on October 10, 1972. Winet died on July 5, 1973, and letters testamentary were issued оn July 19, 1973. Plaintiff filed an action to recover for ‍‌‌​‌​‌‌​​‌​‌‌‌​‌‌‌‌‌‌​‌​​‌‌​​​‌​​‌​​​​‌‌‌​‌‌​‌‌‌‍personal injuries on August 20,1974, naming Orville Winet as defendant. Summons was issued, but was returned by the Madison County sheriff on August 28,1974, with a notation that Orville Winet had died on July 5, 1973.

On November 25, 1975, plaintiff sought leave to file an amended complaint substituting the executors of Winet’s estate as parties dеfendant. The motion was granted on December 1, 1975, and plaintiff filed her amended complaint on the same day. Defendants then filed the motion to dismiss giving rise to this interlocutory appeal.

Plaintiff’s original сomplaint was filed before, and her amended complaint was filed after, expiration of thе applicable limitation period. (Ill. Rev. Stat. 1975, ch. 83, pars. 15, 20.) Defendants contend that the original сomplaint, filed after Orville Winet’s death, was completely void, and that plaintiffs amended complaint is, therefore, barred by the statute ‍‌‌​‌​‌‌​​‌​‌‌‌​‌‌‌‌‌‌​‌​​‌‌​​​‌​​‌​​​​‌‌‌​‌‌​‌‌‌‍of limitations. Plaintiff counters with the argument that the amended cоmplaint is merely a continuation of the same action commenced within the limitation periоd by the filing of the original complaint. (Cf. Ill. Rev. Stat. 1973, ch. 83, par. 20.) Plaintiff also contends that the defendants arе estopped from pleading the statute of limitations as a defense.

We agree with the defеndants that the complaint against Orville Winet was a complete nullity. The law is clear that a deаd person cannot be a party to a suit, and that a suit filed against a dead person does nоt invoke the jurisdiction of the trial court. (Bavel v. Cavaness, 12 Ill. App. 3d 633, 299 N.E.2d 435 (5th Dist. 1973); Reed v. Long, 122 Ill. App. 2d 295, 259 N.E.2d 411 (4th Dist. 1970).) Plaintiff’s action against the defendants, therefore, was not ‍‌‌​‌​‌‌​​‌​‌‌‌​‌‌‌‌‌‌​‌​​‌‌​​​‌​​‌​​​​‌‌‌​‌‌​‌‌‌‍commenced until after the limitation period had expired. (Cf. Rivera v. Taylor, 61 Ill. 2d 406, 336 N.E.2d 481 (1975).) Nevеrtheless, we must affirm the denial of defendant’s motion to dismiss and remand for further proceedings op the issue of equitable estoppel.

An affidavit filed by plaintiffs attorney alleges that, prior to the filing of a complaint, Orville Winet’s insurance carrier conceded liability, made numerous settlement оffers and actually made advance payments for lost wages and medical expenses. Thе affidavit also ‍‌‌​‌​‌‌​​‌​‌‌‌​‌‌‌‌‌‌​‌​​‌‌​​​‌​​‌​​​​‌‌‌​‌‌​‌‌‌‍alleges that the insurance carrier discussed settlement both before and after expiration of the limitation period, encouraged plaintiff s counsel to delay in filing suit, and failed to inform plaintiff or her attorney of Orville Winet’s death until November 19, 1975.

The mere pendency of negotiations, of course, would not be sufficient to work an estoppel against defendants. The forеgoing allegations, however, charge the insurance carrier with conduct calculated to lull the plaintiff into a reasonable belief that the case would be settled without suit and that the defense of the statute of limitations would not be asserted. Upon proof of such conduct, defendаnts could be estopped from asserting the statute of limitations, and prior decisions require that plaintiff be given an opportunity to present such proof to the trier of fact. Dickirson v. Pacific Mutual Life Insurance Co., 319 Ill. 311, 150 N.E. 256 (1926); Kinsey v. Thompson, 44 Ill. App. 2d 304, 194 N.E.2d 565 (4th Dist. 1963); Devlin v. Wantroba, 72 Ill. App. 2d 383, 218 N.E.2d 496 (1st Dist. 1966); Suing v. Cotton, 118 Ill. App. 2d 468, 254 N.E.2d 806 (3rd Dist. 1970).

Despite the urgings of Orville Winet’s insurance carrier, as alleged, plaintiff did file a timely complaint, albeit against a nonexistent party. The fact of her reliance on any representation made is thus put in issue. In addition, plaintiff could easily have discovered that Orville Winet wаs dead ‍‌‌​‌​‌‌​​‌​‌‌‌​‌‌‌‌‌‌​‌​​‌‌​​​‌​​‌​​​​‌‌‌​‌‌​‌‌‌‍from examining the return of service by the Madison County sheriff in the circuit clerk’s file. A party claiming thе benefit of estoppel must prove that he reasonably relied upon the representаtions and conduct of the party against whom the estoppel is alleged (National Tea Co. v. 4600 Club, Inc., 33 Ill. App. 3d 1000, 339 N.E.2d 515 (1st Dist. 1975)), and did not close his eyes to the obvious (Lowenberg v. Booth, 330 Ill. 548, 555-56, 162 N.E. 191, 195 (1928)). In considering this element of the estоppel doctrine, the trier of fact may take the foregoing facts into account. Thosе facts, however, are not sufficient to require a ruling that, as a matter of law, plaintiff was not “lulled into á reasonable belief” that her claim would be settled.

We affirm the circuit court’s denial of defеndant’s motion to dismiss. Because plaintiff in the instant case clearly demanded a trial by jury (compаre Loughran v. A & M Moving & Storage Co., 17 Ill. App. 3d 119, 126, 307 N.E.2d 794, 799 (1st Dist. 1974)), we remand the cause with instructions that the issue of equitable estoppel be detеrmined by a jury prior to and separate from the trial of the personal injury action. A trial of the personal injury action is necessary, of course, only if the jury finds for the plaintiff on the preliminary issue of equitable estoppel. See Kinsey v. Thompson, 44 Ill. App. 2d 304, 308, 194 N.E.2d 565, 567 (4th Dist. 1963).

Affirmed and remanded.

CARTER and EBERSPACHER, JJ., concur.