Hartory v. Menchhofer

1

2023 IL App (4th) 220370-U

KENNETH W. HARTORY, Plaintiff, v. GLEN A. MENCHHOFER and CRUM TRUCKING, INC., Defendants/Third Party Plaintiffs- Appellants, v. STEVEN BROWN, d/b/a STEVE'S SMITH AND ALLEN GARAGE, Third Party Defendant-Appellee.

No. 4-22-0370

Court of Appeals of Illinois, Fourth District

April 27, 2023

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Knox County No. 18L18 Honorable James G. Baber, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Presiding Justice DeArmond and Justice Knecht concurred in the judgment.

ORDER

HARRIS JUSTICE

¶ 1 Held: The trial court did not err by granting third-party defendant's motion to dismiss the third-party plaintiffs' claim for contribution on the basis that their complaint was untimely filed.

¶ 2 Plaintiff, Kenneth W. Hartory, brought an action against defendants-Glenn A. Menchhofer and Crum Trucking, Inc. (collectively defendants)-for negligence arising out of a motor vehicle accident and seeking damages for injuries he sustained in that accident. Later, defendants filed a third-party complaint for contribution against third-party defendant Steven Brown, d/b/a Steve's Smith and Allen Garage (Smith and Allen Garage), alleging Smith and Allen Garage negligently repaired plaintiff's vehicle prior to the accident and that those negligent repairs contributed to plaintiff's alleged damages. Smith and Allen Garage moved to dismiss the third- party complaint on the basis that it was filed outside the applicable two-year statute of limitations. The trial court granted the motion and dismissed the third-party complaint with prejudice. Defendants appeal, arguing the court erred in determining when the two-year limitations period began to run and finding their contribution claim was time-barred. Alternatively, they contend the court erred in failing to equitably toll the two-year limitations period due to extraordinary circumstances that prevented defendants from learning the identity of the proper third-party defendant. We affirm.

¶ 3 I. BACKGROUND

¶ 4 On October 28, 2017, plaintiff and defendant Menchhofer were involved in a motor vehicle collision on Interstate 74 in Peoria County, Illinois. At the time of the collision plaintiff was driving his personal vehicle, a 2000 Buick Park Avenue, and defendant Menchhofer was driving a semi-tractor trailer owned by defendant Crum Trucking.

¶ 5 On December 7, 2017, engineering consultants retained by the parties-Semke Forensic and Unified Engineering Inc.-inspected plaintiff's vehicle. Counsel for both plaintiff and defendants also attended the inspection. On January 5, 2018, Semke Forensic prepared a "Vehicle Accident Evaluation" report, which set forth the following findings of the inspection: (1) the damage to plaintiff's vehicle was "consistent with a rear collision by the tractor-trailer," (2) the driver's seat of plaintiff's vehicle "was displaced rearward" during the collision, (3) there were "welded connections" on the driver's seat and a "lower right weld failure" had occurred, (4) "the fractured lower right seat connection was caused by the rear-end collision," and (5) "the rear-end impact to the Park Avenue by the tractor-trailer caused the Park Avenue's driver's seat failure."

¶ 6 On May 1, 2018, plaintiff filed his complaint against defendants, alleging Menchhofer negligently operated Crum Trucking's semi-tractor trailer, resulting in a rear-end collision with plaintiff's vehicle. Plaintiff asserted that as a result of the collision, he suffered "severe and permanent injury and damage-including *** paralysis." On August 22, 2018, counsel for defendants entered his appearance in the case, and, on August 24, 2018, he accepted service on their behalf. In October 2018, defendants filed their answer. They denied plaintiff's negligence allegations and also asserted affirmative defenses, including the following: "Plaintiff's claimed injuries and damages were proximately caused, in whole or in part, by [plaintiff's own negligence or other intervening causes, including but not limited to the driver's seat failing."

¶ 7 In January 2019, defendants served interrogatories on plaintiff. Relevant to this appeal, they asked plaintiff (1) what date he purchased his vehicle; (2) whether he was provided with any repair history for the vehicle; (3) for a list of the names and addresses of each service garage that he had service his vehicle; and (4) for a list of all repairs made to his vehicle that he was aware of, along with the date the repairs were made and by whom the repairs were made. In February 2019, plaintiff responded. He asserted he did not recall the date he purchased his vehicle but asserted it was "probably about 2005." Plaintiff responded that he was not given a repair history for the vehicle and listed three garages, including Smith and Allen Garage, as having previously serviced his vehicle. Additionally, he maintained that he had not retained records of the repairs to his vehicle, and he did not recall the dates on which any repairs were made.

¶ 8 In November 2019, defendants served subpoenas on the service garages that plaintiff disclosed in his answers to their interrogatories. From Smith and Allen Garage, they specifically sought all documents and photographs related to any type of work performed on plaintiff's vehicle, "including, but not limited to, insurance claims, maintenance, repairs, welding, interior repairs[,] and body work." In February 2020, defendants filed a notice of service of subpoena responses, stating they had received auto repair records from Smith and Allen Garage. Among the records they received was an invoice, dated April 20, 2015, that showed a "seat track" repair to plaintiff's vehicle.

¶ 9 The record shows that following the motor vehicle accident, plaintiff spent time in a rehabilitation center and was admitted to a long-term care facility. Correspondence between the parties' attorneys indicated defendants expressed a desire to depose plaintiff early in the case. In particular, on May 2, 2018, one day after plaintiff's complaint was filed, plaintiff's counsel wrote to defendants' counsel and stated as follows:

"Please advise if you will voluntarily enter an appearance on behalf of the defendants. We have not had summons issued-in large part because of your indications that you want to proceed to depose [plaintiff] at an early stage to make some inquiries about a repair to his car seat which broke in the accident."

¶ 10 Over a year later, on August 15, 2019, plaintiff's counsel wrote a letter informing defendants that neuropsychological testing for plaintiff, which was recommended by plaintiff's doctor, was being arranged. Counsel further stated as follows: "Let us know if you want to depose [plaintiff]. My suggestion would be to wait until the neuropsychological exam is completed, but we leave that to your discretion." In a letter dated August 26, 2019, plaintiff's counsel informed defendants that plaintiff's neuropsychological evaluation was scheduled for January 9, 2020. On February 11, 2020, the trial court entered a case management conference order, requiring plaintiff to produce a neuropsychological evaluation report by April 30, 2020, and that plaintiff's deposition be completed by May 31, 2020.

¶ 11 On April 29, 2020, plaintiff's counsel wrote a letter, informing defendants of COVID-19 restrictions at plaintiff's nursing home, stating: "Because [plaintiff's] nursing home is locked down due to COVID-19 restrictions, I don't think we'll be able to do his deposition in May. We will try and arrange it at the earliest possible date." On June 17, 2020, plaintiff's counsel again wrote to defendants, stating as follows:

"Last week you indicated that you prefer an in-person discovery deposition of [plaintiff]. As I advised, I checked with the nursing home and they are unwilling to allow [plaintiff] to be released from the facility for any purpose other than to attend medical appointments. They did indicate that I may be present at the nursing home if we set up a video deposition-but that is subject to further review.

My suggestion is we wait until July 15th. If state regulations haven't relaxed by that time, I can file a motion with the court requesting that it direct a video deposition of [plaintiff] and try and make those arrangements."

¶ 12 Ultimately, on September 10, 2020, plaintiff's deposition was taken via Zoom. During the deposition, plaintiff testified that the repair work Smith and Allen Garage performed on his vehicle prior to the accident included welding his broken driver's seat. On September 15, 2020, defendants filed a motion for leave to file a third-party complaint against Smith and Allen Garage, which was granted by an agreed order.

¶ 13 On October 1, 2020, defendants filed their third-party complaint for contribution against Smith and Allen Garage. They alleged that prior to the motor vehicle accident at issue, Smith and Allen Garage performed repairs on plaintiff's vehicle that included "welding the driver's seat frame *** on both the right and left side near the bottom of the driver's seat." They asserted plaintiff was injured in the motor vehicle accident "because the driver's seat frame in [plaintiff s vehicle fractured at or near the locations where Smith and Allen Garage had previously welded the driver's seat ***." According to defendants, Smith and Allen Garage carelessly and negligently welded plaintiff's broken driver's seat, failed to inspect or examine the repairs it performed, failed to supervise and inspect the work of the person or entity that welded the broken driver's seat, failed to...