proceed thank you ma'am please the court counsel my name is michael meyer and i represent the appellant black burning green the issue presented today involves the application of the relation back to action case of a mistake us because at the very least there is a question of fact concerning the timeliness of k w s is notice of the commencement of this lawsuit based on testimony from k w s as employee that she personally notified k w s of  have notice of the commencement of the lawsuit within the time period required for the application relation back to action under section t by way of background this case stems from a motor vehicle accident on june st two thousand and fourteen involving jessica wells who was employed by k w s at that time now the other driver point of joshua murphy had retained a black burning green and and during her st discovery deposition on may th two thousand and seventeen just confirmed that she was employed by k w s on the date of the accident and testified that she personally notified us of the lawsuit  complaint was amended later that month in may of two thousand and seventeen by bambi a political statute of limitations has expired so there is no dispute that this is a case of mistaken identity the wrong anthony was mistakenly named is offended in the original complaint as a result for the amended complaint against ws to relate back to the original for purposes of the statute of limitations the requirements of to dash sixteen must be met there is also no dispute that the st and grew out of the same occurrence set forth in the original pleading that occurrence being the accident the only difference is that the proper defendant was named employer now what is disputed is whether the nd requirement the timely notice requirement is satisfied that is whether k w s received notice of the commencement of the lawsuit within the time that the action might have been brought plus the time for service or middle under supreme court rule one of three b so that it was not prejudiced in maintaining a defense of merits and knew or should have known that for a mistake concerning the identity of the proper party the action would have been brought against us now there are a few prongs within the timely notes requirement and st i'd like to address k w s is notice brother right yes you are ok brother is the owner and present of us now during that deposition she was asked have you personally notified k w s that there was a lawsuit against you she really has not commented on anything to me other than me just letting them know now the trial court erred when you found that there was not any deposition testimony or evidence that jessica communicated about the commencement of this lawsuit with ime for service permitted under one hundred and three dollars be correct ok in jessica's deposition this is what i want you to hone in on does she identify when it was as she told us of the filing up the last you know she does that so it could have been the week prior to the deposition which would have been may of two thousand and seventeen which still would have been specify an exact time period for service rather it only requires the plane to be diligent in his efforts to obtain service so in essence these are miscible period for service under one of three b and thus under two  dollars it varies from case to case it's measured specially by the plaintiff's efforts and the plaintiff's diligence in each particular case as to service on each particular defendant and the reason that creates a bit of an issue here in terms development the point there is that the plaintiff's diligence is not issue in terms of amending the complaint and obtaining service what matters for purposes of the relation back to action is the defendant knowledge of the lawsuit and so the plaintiff's diligence is not an issue and so when we're trying to measure a time based on plaintiff's diligence yet simultaneously saying that the point is diligence doesn't matter under the case law it's difficult to identify and sess and its precise time period and that's further complicated by the very nature of a mistaken identity case in and of itself if the plaintiff is unaware of the proper entity to be named as a defendant it stands to reason that there are going to be efforts to serve the correct anthony that's why it's a mistaken identity case and so if we're trying to measure this time based on the point it's efforts to serve it create creates a problem there and i think that it's just that there is no time frame identified and it could have been a week after the expiration of the statute of limitations it could have been eleven months after the statute of limitation but we're left to speculate as to when that was and i notice in your brief this is that page twenty four dollars you say well she did not indicate precisely when she notified kate up us it wasn't the barry lease or at the very latest within eleven months of the expiration of the statute of limitations because she testified regarding the notice on may th two thousand and seventeen in the event that she notified k w s shortly after being served with the original complaint herself she may have notified kate up yes as soon as june th two thousand and sixteen and so forth but what it seems you're doing there is inviting speculation we are missing it but seems to me to be a key piece of evidence which is when did she notify  the mere fact that she did it doesn't allow us to examine this according to two thousand six hundred and sixteen d d which is specifically telling us we have to examine application of the relation back dr and it seems that that ball's in your lap yes your honor to that point i would say in terms of the time period as i mentioned before it's difficult to assess that but i think we can find some guidance here in the language of the rule and the way the courts have interpreted this which is that it's within the a but will time period that received such notice of the commencement of the action that the person will not be prejudiced in maintaining a defense on the merits and i think that's why the eleven months after let's say that it's two years or three years or four years or up to or if we're just examining for prejudice is that still permissible service under perhaps it could be based upon the absence of any prejudice there because again a close goes to what the defendant knew or should have known and it's prices strike a balance between enforcing the statue limitations fairness and the fairness goes to both parties here in terms of a fact a set of facts in which he was involved in at that party knows or should have known the only reason he was not sued was going to him and state and the plaintiffs part and if the notice of the lawsuit is sufficient that the party has not been prejudice in his ability to later defend himself against the suit on the merits that party is hard pressed to claim unfair treatment when the plaintiff later discovers a mistake and susan if anything the party was lucky to have avoided the suit when it was originally filed and i think that line of thinking sort of explains the purpose of the relation back to action which is that if the and why the focus on the defendant's knowledge is so important yours because it strikes fairness in terms of not having a or i'm sorry in allowing the case proceed on the merits provided it's fair to the defendant and should've known that he or she or it in this case should have been sued and so i think that the inability to suss the time period or one of three b which i understand is provided for in the  language of the statute it's closely linked to the prejudice aspect and so construing all of the facts and but they were in the light most favorable to the not movement being my client here i think that there is at least a question of fact as to whether or not the notice was timely under these requirements of two hundred and sixteen the and the way that the case lies been interpret a fact within his or her personal knowledge is sufficiently deliberate and unequivocal it may be elevated to the status of the judicial mission that's precisely what we have here whether she personally notified k w s is within her own personal knowledge and her answers were a question of fact that is contested and that's for the jury or the trier of fact to determine not the court on a motion for summary judgment because i think the issue here is that she did give conflicting testimony later on and so the argument we're making is that she should be bound by the initial testimony based on the nature but even if it's not a judicial admission for as your honor pointed out for that very reason there is a conflicting question of that and it goes to the questions of backing credibility  much like the testimony from her brother robert who also gave conflicting testimony as to what conflicting as to just as initial testimony as to when katie of yes received suit it under scores the fact that we have questions of back and  which provides a federal version of the relation back to action as such illinois courts have routinely look to federal cases for guidance and interpret and that's when it goes back to the cross he case which stands for the proposition and in two thousand and ten that the relation back depends upon whether what the party to be added knew or should have known not on the amending party's knowledge or its timeliness in seeking to amend the complaint and that's where the two part inquiry comes into play which is whether the defendant the st being whether the fan it is who is ability defend self has been impaired or prejudiced instead relies upon what we had just touched on earlier whether or not received noticed within the statutory time period and to that point i will note that the acquittal time period the response brief is incorrect in so far as the k w s relies on old version of fifteen c and old case law to provide the to stand for the proposition that the notice fifteen c was amended specifically to abrogate that decision and allow for this extra time or service on the rocks and so that i see my time is up marcin it's your time's up you have an emphasize one is that one council was just referring to jessica was served she was served three days after the expiration of limitations period and five weeks after the litigation between four and five weeks after litigation wa of the commencement of a lawsuit and passed the notice that commits a lawsuit on to either employer or former employer depending on what the circumstances were at the time it's whether the defendant th to clarify your comment when we're looking at six hundred and sixteen dollars d and specifically section two where it's asking us to examine the time for service permitted under supreme court rule on determine whether service on k w a s at that time would have been considered timely is that made a mistake in the original file that's the notice that has to be conveyed otherwise there is no reason for you defendant to ever understand that it should have been a party to a case out irrespective of whe are under what circumstances jessica receipt her notice of the commencement of the action and irrespective of the fact that she told her brother at some point in time again either at the time she received it or six months later or your later or whatever it was irrespective of all that stuff the question that comes into play isn't just the fact that she said hey i got to is that something else happened in addition to that and that is i got sued and they sued for side and i wasn't working for foresight that time i was working for you such that then the defendant has knowledge right that all players made a mistake intended to sue me now in this case there is absolutely no evidence at all that that transpired and i think that that's one of the operative things that comes to play in this games you know the plaintiff takes the position that a question of fact is raised by virtue of the fact that justice at one thing in a deposition and she said something else in an affidavit the deposition was taken under some circumstances that would explain why she testified the way she did it the circumstances were that the that retainer in return of summons and didn't provide it to or at the time the deposition was taken it was not a matter of court record at the time the deposition was taken that counsel who was representing jessica at the time didn't have that return of summons he had just entered an appearance in the case when he was notified of it by his insurance company mr graham you know you interrupt me again and i'm sorry bookmark where you're at your argument but it's a very important point that you're making i think in regards then prejudices k w s well i think that by itself is the nature of two hundred and sixteen and the reason why they wrote it the way that it you know were given specific language in the statue and  where in that statute should we take into account the point you just made about k ws not having been informed that just because former employer had been sued i believe i don't have to sixteen directly in front of me right now but i believe that he sixteen specifically says that it is such that the defendant would know that for the state is suing the wrong defend it would have been sued and i'm sure it could yeah the language says and knew or should have known that but for a mistake concerning the identity of the proper party the action would have been brought against him or her yes that language that you're saying that testimony that she gave about the issue was limited by virtue of the fact that it's her memory was limited at that time i said through with a deposition and i know how she reacts to these things so it wasn't surprising to me when you read the deposition and you see the description of how she how she recalls having received a notice that a lawsuit against her had been an issue and when she says she received a phone call that she was being sued not a phone call i was informed i can't remember it so long ago that i was informed of it i can't remember exactly out maybe in the mail i don't remember mr graham mr graham let me let me jump in there lies the problem all the information is contained within the knowledge of just k w s so you know we've got some credibility issues here when you have testimony like that you got a sense of the sister you know us moving around for service we don't know who was born or when she was employed where it seems to me you we would have a question of fact we're not we have the actual time in which she told k w s of  this there are certainly some questions in those questions are brought to bear by some of the inconsistency in the testimony would you not agree or like to comment on that well in his justice thomas indicat but the two of them did not communicate and the record in this case is replete with indications that there was no communication back and forth about anything between robert wells and jessica wells when jessica indicates that she told robert about the accident and the same thing robert testifies about the same thing it was just that she told them there was an accident and that was it there was never any discussion about it any more after that she was insured by her own insurance company she didn't see any reason to discuss it any further and i understand justice is hears reminds us of the burdens however were there credibility issues with regard to the inconsistent inconsistent conflicting testimony and two separate depositions for this young woman that in and of itself raises a question as to what the my or might not be and could be a question of moved there more than a year before the lawsuit was filed robert wells testimony was that she had moved from there at approximately the same time that the lawsuit was filed like and that was on the day she was served three days after the expiration of the statue of limitations so i'm in is that roe is not a real open genuine issue of material fact that relates to notice it is but there is no dispute  she lived at the time she was that this at the time that she was served and at the time she st noticed that the existence of a lawsuit against her she was living in rockland county illinois and she wasn't working for ken as well as in sun's family that my recollection of their return i may be wrong is not that it was the lawsuit was filed it was that day the statue of limitations expired ok and there was by my recollection and we'll have to go back and look at the return again but my recollection is that the process server attempted to serve on the th of june in clark county was advised that the defendant jessica had moved to rock island county at the time and that she was served the same day and rock island county now when we say that she was served that's a little bit of a stretch and i think that's the other reason why her testimony of how she got knowledge that she was being sued is subject to some pretty significant question and that's that she she wasn't serve her the return of service says that her fiance's father received the service at his residence in rock island and there is no evidence of record that indicates that a certified copy of the summons and complaint were the and mail to jessica had her last known address so when jessica says i don't know how i got sued well she doesn't know how she got sued it ended up in her lap and she turned it over to somebody after that at some point in time after that actually may have had a discussion with her brother to say hey i got sued but there isn't any evidence in this case at all to indicate that what she told her brother was hey i got sued and oh i the way they sued forsyth family farms and i wasn't working for foresight that  they would they should assert suit you if change the facts just a little bit if what had happened instead was that when she received the suit papers she picked up the phone and she called her brother and she well the accident that took place here that generated all this litigation occurs now three years before we ever even get notice of the fact that we're a party legation i don't know what all of the information the documentation everybody may have accumulated and maintained and exchanged between everybody before it of us gets involved but kenneth wells and sons doesn't have the opportunity to identify what the all duties and functions right i mean this wasn't something extraordinary no they knew she was burning lunch and they knew this isn't or is just a motorcycle hits her car she pulls out from her motorcycle is not complicated well and that isn't applicator it at all the question it's complicated or i don't think it's complicated but the question that's raised here is whether or not whether janet wasn't sons was aware of the fact that she was involved in a car motorcycle accident on a day when she was supposed to be delivering lunch guys in the field the question that's at issue here is did kenneth wells and signs ever become aware that somebody else was suited its place such that it could have defended this case during the statue of limitations fact that's that's the bottom line here and mr graham going back to prep if i just want to clarify this is the only prejudice that's being claimed that k w s is coming in late in the game  involved in a car accident in her car that her insurance was going to cover it and that if somebody else needed some assistance from k w s she'd have us would probably provide it but to the extent of the information that was exchanged at the time it was only that she had been in an accident it was in her car and she had her own insurance coverage she was going to take care of it after that if you disagree  that the you have a different take on whether or not the deposition was inconsistent but if there is credibility issues or is in consistencies about what came from the deposition from either  well that's the one reason the other reason is the trial judge didn't decide the issue on that point the trial judge took a completely different and divergent course and the trial judge's decision is actually broader than that consideration the trial judge decided that jessica wasn't somebody who could accept process anyway and she showed no responsibility to the company to provide notice of the fact that she had been served not that extends to the fact that she had been served and somebody else was it was improperly but on that basis and because that is that decision is made irrespective of when she received notice the trial judge's decision does support the grant of s and then one day i just a few points counsel had mentioned that robert and jessica the two of them didn't communicate and i think this is something important to note here because i think it does go to a lot of these issues in terms of knowing or should have known because there is testimony that robert in cell visited the scene of the accident after it occurred even though it's not a place you would normally go other is the testimony that just as pointed out that robert k b s took care of the repairs for jessica roberts as by that he examined jessica's vehicle and i'm top of the fact that again they were notified on the day of the accident of the incident itself while this notice for commencement of action it does provide information that would allow them to know or should have known that the employee that without running an errand get sued you should know or should have known that you would have been named if not for a mistake and that there's also been a lot of discussion about the testimony and what she knows and what she didn't know she doesn't know how she got sued ship just doesn't know how or when she was served or it changes and how she st learned of the lawsuit i think there's testimony that someone call there an hour about this what she or should have known or was prejudiced the facts and circumstances here show that they had ample opportunity to investigate this and didn't fact investigate it we're not prejudiced i and i thing by the way rather and in fighting this and that they knew or should have known that when their employee was sued while running an errand they would be sued if not for a mistake and based on all of this i think there is sufficient evidence in the record to at least create a question of material fact as to whether or not the requirements of two sixteen the two are met it is whether or not k w s received timely notice of the commencement of the action so that it was not prejudiced and if they knew or should have known that it would have been sued by a form state for these reasons we would ask stand in recess