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Polites v. U.S. Bank National Association9/13/2005
The plaintiff Harry Polites appeals the dismissal of his personal injury action against U.S. Bank National Association. The trial court dismissed U.S. Bank because Polites failed to name it as a defendant within two years of his injury. Polites relies on section 2-616(d) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-616(d) (West 2002)) for his contention that his amended complaint naming U.S. Bank related back to his original complaint. Because we agree with Polites, we reverse and remand.
BACKGROUND
On June 5, 2000, Polites went to a U.S. Bank branch office located at 744 North Milwaukee Avenue in Chicago , Illinois . As Polites sat down in a chair in a waiting area, he allegedly hit his back on a granite counter directly behind the chair, causing injury.
On January 4, 2001, Polites' attorney sent a letter to U.S. Bank at 744 North Milwaukee explaining the injury and asking to discuss possible payment of Polites' medical bills. Six days later, the attorney received a letter from Constitution State Services (CSS). CSS, an insurance claims service, wrote:
"We handle claims for U.S. Bancorp and I'm writing acknowledging your representation of Mr. Harry Polites in reference to this incident on June 5, 2000 at our client's branch bank located on Milwaukee Avenue.
Our client does carry Medical Expense coverage with a $5,000.00 limit, which is good for medial treatment related to injury or injuries incurred on their business premise. The coverage is good for one year."
The letter requested additional information, including Polites' medical history and records. In fact, U.S. Bancorp is a holding company that provides administrative services to its subsidiaries including U.S. Bank. From January 2001 to June 2002, CSS and Polites' attorney discussed a possible settlement to avoid litigation.
In June 2002, when CSS and Polites still had not reached a settlement, Polites' attorney, Andrew Ligas, informed CSS that he had to file a complaint but would delay service while their settlement negotiations continued. On June 4, 2002, one day before the limitations period expired, Polites filed his complaint naming only U.S. Bancorp as the defendant.
One week later, Ligas faxed a copy of the complaint naming U.S. Bancorp as defendant and summons to CSS. CSS responded with a letter stating in part:
"Thank you for your fax transmission of the Summons and Complaint *. As I understand it, this had been filed with the court, but has not been served on our client. If you do serve our client, please contact immediately."
Eight months later, Polites' negotiations with CSS ended without settlement. On February 3, 2003, CSS notified Polites that it did not believe U.S. Bancorp was liable for his injury. CSS wrote:
" e do not believe U.S. Bancorp bears any liability for the alleged injuries. The overhang from the counter was open and obvious and Mr. Polites would have had the option to move the chair or sit elsewhere. With respect to damages, we have not been presented with any substantiation of the injuries. All medical records that we have received are for treatment prior to the date of the alleged accident. Based on the information available to us at this time, we must respectfully deny any claims by Mr. Polites arising out of this matter."
On March 19, 2003, U.S. Bank vice-president Michael Clawson was served a copy of Polites' complaint at U.S. Bank's offices located at 30 North Michigan Avenue in Chicago .
Three months later, U.S. Bancorp filed a combined motion to quash service of process and to dismiss the complaint. U.S. Bancorp conte
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