                            NO. 4-06-0415        Filed: 12/15/06

                        IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

JAMES GRIFFIN,                          )    Appeal from
          Plaintiff-Appellant,          )    Circuit Court of
          v.                            )    Moultrie County
BRENDA R. WILLOUGHBY,                   )    No. 05L7
          Defendant-Appellee.           )
                                        )    Honorable
                                        )    Dan L. Flannell,
                                        )    Judge Presiding.
_________________________________________________________________

          JUSTICE COOK delivered the opinion of the court:

          On April 26, 2005, plaintiff, James Griffin, filed a

complaint against defendant, school-bus driver Brenda R.

Willoughby, alleging her negligence in a collision that occurred

on February 18, 2004.    The trial court dismissed the suit with

prejudice.

          On appeal, plaintiff contends the one-year limitations

period found in section 8-101 of the Local Governmental and

Governmental Employees Tort Immunity Act (Tort Immunity Act) (745

ILCS 10/8-101 (West Supp. 2003)) does not apply to his action.

Alternatively, plaintiff urges defendant was equitably estopped

from asserting the limitations period and the limitations period

was equitably tolled.    Because section 8-101's one-year limita-

tions period applies and neither equitable estoppel nor equitable

tolling precludes its enforcement, we affirm.

                            I. BACKGROUND

          On April 26, 2005, plaintiff filed a complaint against

defendant, alleging defendant's negligence in a collision that
occurred on February 18, 2004, between plaintiff's vehicle and

the school bus defendant was driving.    Defendant moved to dismiss

pursuant to section 2-619 of the Illinois Code of Civil Procedure

(Code) (735 ILCS 5/2-619 (West 2004)), urging plaintiff's com-

plaint was barred by the one-year limitations period contained in

section 8-101 of the Tort Immunity Act.    745 ILCS 10/8-101 (West

Supp. 2003).   In an accompanying affidavit, defendant attested

she was transporting students in the course of her employment

with the Okaw Valley Community Unit School District (school

district) at the time of the collision.

          On October 3, 2005, plaintiff filed an amended com-

plaint, adding allegations that he delayed filing suit because he

relied on statements made by Indiana Insurance Company (insurance

company), the school district's insurance carrier.    Plaintiff

claimed his attorney communicated with the insurance company at

various times between March 15, 2004, and April 20, 2005.

Plaintiff asserted the insurance company led him to believe it

intended to settle the claim for a reasonable amount but needed

more information for its file.    He alleged that on April 20,

2005, the insurance company's adjuster, Janice King, announced

her company was denying his claim because he did not file suit

within one year of the collision.

          Defendant again moved to dismiss.    In an attached

affidavit, King attested that she began handling plaintiff's

claim on May 17, 2004, and tried to call plaintiff's attorney,

Gary Geisler, on several occasions before receiving a letter from

                                 - 2 -
Geisler dated July 21, 2004.   King stated no further communica-

tion occurred from late July 2004 to early December 2004.      She

received a letter from Geisler dated December 1, 2004, but then

had no further communication with Geisler until April 20, 2005,

when she called him to inquire whether he had filed suit.      King

attested Geisler said he had not been aware that school-bus

accidents were governed by a one-year limitations period.

           King attached to her affidavit the two letters from

Geisler.   In the July letter, Geisler wrote to update King

regarding the status of plaintiff's injuries, stating he would

forward plaintiff's medical bills and records when he received

them.   Geisler provided the names of three physicians and a

chiropractor who had treated plaintiff.    In December 2004,

Geisler informed King that plaintiff had continuing pain and

injuries, his present medical bills totaled $17,828.44, and the

workers' compensation lien was $15,864.69.    Geisler also named

another physician and attached a list of health-care providers

and total charges for each to date.    He closed, "We are autho-
rized to settle this case for $150,000.00.    Please advise."

           King also attached three letters that predated her

assignment to the claim.   In a letter dated March 15, 2004,

Geisler wrote to inform the insurance company that he represented

plaintiff and inquired about the policy limits for the collision.

Senior claim representative Pam Kalfen acknowledged the receipt

of Geisler's attorney's lien in a letter dated March 22, 2004.

Kalfen asked plaintiff to execute a medical- and wage-authoriza-


                               - 3 -
tion form and to provide the names and addresses of plaintiff's

treating physicians.   Kalfen requested that Geisler forward

plaintiff's "supporting material," writing "When we have received

this information, we will be in contact with your office."

Finally, in a letter dated April 7, 2004, Geisler wrote that he

was enclosing plaintiff's medical records for services related to

the collision, advising, "I will forward the medical bills and

summary once we have received them ***."   He again asked the

insurance company to disclose the policy limits.

          Plaintiff responded to defendant's motion with

Geisler's affidavit.   Geisler attested that plaintiff received a

letter dated February 20, 2004, from the insurance company, which

resulted in correspondence between Geisler and Kalfen in letters

dated March 15, March 22, and April 7, 2004.   Geisler stated

Kalfen called him on April 15, 2004, to tell him that the policy

limit was $1 million for bodily injury and that Geisler should

forward plaintiff's medical records and bills.   Geisler attested

he received a letter from King dated May 18, 2004.   That letter
simply advised King was the new adjuster handling the claim.

          Geisler disagreed that he had no contact with the

insurance company between his July and December 2004 letters.

Rather, he stated he mailed almost all of plaintiff's medical

bills and records to King on September 7, 2004; he did not

include the records from Decatur Memorial Hospital because he had

not yet received them.   Geisler attested he followed up his

December 1, 2004, letter with a phone call on December 17, 2004,


                               - 4 -
leaving a message to inquire about "the status of the case in

response to [plaintiff's] settlement demand."     Geisler wrote to

King on March 21, 2005, to "inquire about [the insurance com-

pany's] position about the settlement of the case."

          Geisler attested that King's phone call of April 20,

2005, was the first time anyone with the insurance company

contended it was asserting the Tort Immunity Act's one-year

limitations period.   Geisler explained he had been awaiting the

insurance company's response to his last three letters and phone

call and had assumed it was in the process of responding with a

settlement offer.   Geisler attached copies of all the correspon-

dence he referenced in his affidavit.

          On December 23, 2005, the trial court granted defen-

dant's motion to dismiss because the limitations period from the

Tort Immunity Act applied to plaintiff's cause of action.     The

court also found plaintiff did not establish equitable estoppel

because (1) plaintiff did not show any conduct or action by

defendant or the insurance company amounting to misrepresentation
or concealment of a material fact and (2) plaintiff did not show

any conduct by defendant or the insurance company that could have

been intended or reasonably expected to cause plaintiff to delay

filing his cause of action.    The court entered a written order on

January 9, 2006.    Later that month, plaintiff filed a motion to

reconsider, which the court denied.     In April 2006, plaintiff

filed a second motion to reconsider pursuant to the "new" legal

theory of equitable tolling.   The court denied that motion as


                                - 5 -
well.   This appeal followed.

                             II. ANALYSIS

                         A. Section 8-101

           "Under section 2-619(a)(5) of the Code, a defendant is

entitled to a dismissal if the 'action was not commenced within

the time limited by law.'"    Lamar Whiteco Outdoor Corp. v. City

of West Chicago, 355 Ill. App. 3d 352, 359, 823 N.E.2d 610, 616

(2005), quoting 735 ILCS 5/2-619(a)(5) (West 2002).     "A motion to

dismiss pursuant to section 2-619 of the Code admits the legal

sufficiency of the complaint but asserts affirmative matter to

avoid or defeat the claim."     Lamar, 355 Ill. App. 3d at 359, 823

N.E.2d at 616.   When ruling on such a motion, a court must

interpret all pleadings and supporting documents in the light

more favorable to the nonmoving party.      Paszkowski v. Metropoli-

tan Water Reclamation District of Greater Chicago, 213 Ill. 2d 1,

5, 820 N.E.2d 401, 404 (2004).    Both the decision to dismiss a

complaint and the interpretation of a statute are subject to de

novo review.   Paszkowski, 213 Ill. 2d at 6, 820 N.E.2d at 404.

"[T]he question on appeal is whether there is a genuine issue of

material fact and whether [a] defendant is entitled to judgment

as a matter of law."   Mitchell v. State Farm Fire & Casualty Co.,
343 Ill. App. 3d 281, 284, 796 N.E.2d 617, 619 (2003).

          "[S]ection 9-102 [of the Tort Immunity Act] clearly

requires a local public entity to pay any tort judgment or

settlement for compensatory damages for which its employee acting

within the scope of his employment is liable."     Sperandeo v.


                                 - 6 -
Zavitz, 365 Ill. App. 3d 691, 694, 850 N.E.2d 394, 397 (2006).

However, section 8-101 of the Tort Immunity Act provides "[n]o

civil action *** may be commenced *** against a local entity or

any of its employees for any injury unless it is commenced within

one year from the date that the injury was received or the cause

of action accrued."    745 ILCS 10/8-101(a) (West Supp. 2003).      The

purpose of the limitation period "is to encourage early investi-

gation into a claim *** when the matter is still fresh, witnesses

are available, and conditions have not materially changed.     Such

an investigation permits prompt settlement of meritorious claims

and allows governmental entities to plan their budgets in light

of potential liabilities."    Ferguson v. McKenzie, 202 Ill. 2d

304,   313, 780 N.E.2d 660, 665 (2001).    "Thus, in order for a

plaintiff to recover against a county employee acting within the

scope of his employment, the plaintiff must file suit within one

year, even if he is seeking to recover against the county em-

ployee only in his individual capacity."      Sperandeo, 365 Ill.

App. 3d at 694, 850 N.E.2d at 397.      Plaintiff makes two arguments

as to why section 8-101 should not apply.

                          1. Quasi Immunity
            Plaintiff first contends the limitations period con-

tained in section 8-101 is a "quasi immunity," citing no legal

authority for that proposition but offering an analysis akin to

that used to determine whether sovereign immunity shields a state

employee.    Plaintiff urges section 8-101 does not apply to his

action against defendant because her alleged negligence arose


                                - 7 -
from her operation of a motor vehicle, and she was under a legal

duty to exercise ordinary care in that regard, irrespective of

her employment by the school district.

          Plaintiff's position is clearly based on Currie v. Lao,

148 Ill. 2d 151, 159, 592 N.E.2d 977, 980 (1992), where the

Illinois Supreme Court concluded the proper inquiry in determin-

ing whether sovereign immunity shields a state employee from

liability for on-the-job negligence is to analyze the source of

the duty the employee is charged with breaching.   In Currie, the

court noted that claims based on a state employee's negligent

operation of an automobile are generally outside the doctrine of

sovereign immunity because negligence that arises from the

ordinary operation of a motor vehicle is based on the breach of

the duties every driver owes to every other driver.   Currie, 148

Ill. 2d at 160, 592 N.E.2d at 980-81.

          Racich v. Anderson, 241 Ill. App. 3d 336, 608 N.E.2d

972 (1993), demonstrates plaintiff's focus on the nature of

defendant's actions and accompanying duties is misplaced.     In

that case, the plaintiff filed a complaint against the defendant

in her individual capacity nearly 18 months after the school bus

she was driving collided with the plaintiff's vehicle.    Racich,
241 Ill. App. 3d at 337, 608 N.E.2d at 972.    The trial court

dismissed the plaintiff's complaint with prejudice based on

section 8-101's one-year limitations period.    Racich, 241 Ill.

App. 3d at 337, 608 N.E.2d at 972.    On appeal, the plaintiff

cited Currie and argued his suit charged the defendant with


                              - 8 -
breaching a duty imposed on her independent of her employment as

a school-bus driver.    Racich, 241 Ill. App. 3d at 338, 339, 608

N.E.2d at 973, 974.    The appellate court found the trial court

correctly determined the plaintiff's cause of action was time-

barred pursuant to section 8-101 and noted whether the defendant

would have been entitled to invoke a sovereign-immunity defense

was a separate question.    Racich, 241 Ill. App. 3d at 339-40, 608

N.E.2d at 974.

          Plaintiff's contention essentially is that if defendant

would not be immune for his actions, the limitations period in

section 8-101 of the Tort Immunity Act should not apply.     How-

ever, Racich demonstrates that the limitations period and the

likely success of an immunity defense are not connected.     Plain-

tiff's contention that section 8-101 is a "quasi immunity" to

which defendant is not entitled is without merit.

                 2. Two-Year Statute of Limitations

          Section 13-202 of the Code provides that personal-in-

jury actions must be commenced within two years after the cause

of action accrued.    735 ILCS 5/13-202 (West 2004).   Plaintiff

argues the one-year limitations period in section 8-101 and the

two-year limitations period in section 13-202 both potentially

apply; focusing on the nature of the cause of action, rather than

solely on defendant's status as an employee of a public entity,

reveals section 13-202 is more specific to the present case.

          Plaintiff's argument rests on the dissent authored by

Justice McMorrow in Tosado v. Miller, 188 Ill. 2d 186, 720 N.E.2d

                                - 9 -
1075 (1999) (McMorrow, J., dissenting, joined by Rathje, J.).

Tosado involved two medical- malpractice suits against county

hospitals and their employees, consolidated on appeal after the

trial courts denied the defendants' motions to dismiss.    Tosado,

188 Ill. 2d at 188, 720 N.E.2d at 1077.    A plurality of the

Illinois Supreme Court concluded the one-year limitations period

in section 8-101 of the Tort Immunity Act governs medical-mal-

practice cases brought against local governmental entities and

their employees, not the two-year limitations period for bringing

medical-malpractice actions provided for in section 13-212(a) of

the Code.    Tosado, 188 Ill. 2d at 195-96, 720 N.E.2d at 1080-81.

            Justice Miller, joined by Justice Bilandic, found that

because either section 13-212(a) of the Code or section 8-101 of

the Tort Immunity Act could apply to the plaintiffs' actions in

the absence of the other, the appropriate inquiry was which of

the statutes more specifically applied.    Tosado, 188 Ill. 2d at

191, 720 N.E.2d at 1078.    To answer that question, Justice Miller

focused on the nature of the defendants, rather than the type of

cause of action, and concluded section 8-101 of the Tort Immunity

Act was more specific to the case before the court.    Tosado, 188
Ill. 2d at 194, 720 N.E.2d at 1080.

            Justice Heiple and Chief Justice Freeman, writing

separately, agreed section 8-101 applied but disagreed the

defendants' status was determinative.    Rather, they noted "this

is one of those instances where 'the legislature intended to make

the general act controlling'" (Tosado, 188 Ill. 2d at 199, 720


                               - 10 -
N.E.2d at 1082 (Heiple, J., specially concurring), quoting Stone

v. Department of Employment Security Board, 151 Ill. 2d 257, 266,

602 N.E.2d 808, 812 (1992), quoting 2B N. Singer, Sutherland on

Statutory Construction §51.05, at 174 (5th ed. 1992)) and section

8-101 of the Tort Immunity Act "was designed to apply broadly to

any possible claim against a local governmental entity and its

employees" (Tosado, 188 Ill. 2d at       199, 720 N.E.2d at 1083

(Heiple, J., specially concurring)).

          Just over a year later, the court faced a similar issue

in Ferguson, 202 Ill. 2d at 304, 306-07, 780 N.E.2d at 661-62:

whether section 8-101 of the Tort Immunity Act or section 13-

212(b) of the Code applied in a medical-malpractice action where

the decedent's daughter was a minor at the time of the alleged

malpractice but over 19 years old when the suit was brought on

her behalf against Cook County and a county hospital's employees.

Section 13-212(b) provides that where a person entitled to bring

a medical-malpractice action was a minor at the time of the

occurrence that allegedly caused the injury or death, the action

must be brought within eight years of the occurrence but, in any

event, no later than the person's twenty-second birthday.      735

ILCS 5/13-212(b) (West 2004).

          The opinion adopted the reasoning from both Tosado's
plurality opinion and the special concurrences to conclude that

section 8-101 applied.   Ferguson, 202 Ill. 2d at 312, 780 N.E.2d

at 665.   Justice McMorrow again dissented, adhering to her

position in Tosado and urging that employing the two positions in


                                - 11 -
Tosado was "unpersuasive and may result in further uncertainty

with respect to the appropriate analysis to be employed."

Ferguson, 202 Ill. 2d at 315-16, 780 N.E.2d at 667 (McMorrow, J.,

dissenting, joined by Harrison, C.J., and Kilbride, J.).

            The supreme court addressed this uncertainty in

Paszkowski, 213 Ill. 2d 1, 820 N.E.2d 401, which Justice McMorrow

authored.    The question before the court was whether section 8-

101 of the Tort Immunity Act or section 13-214(a) of the Code,

which provides for a four-year limitation period for

construction-related causes of action, applied to a negligence

suit filed in early 2000 regarding injuries the plaintiff alleg-

edly sustained in 1998 while working on a district construction

project.    Paszkowski, 213 Ill. 2d at 3, 8, 820 N.E.2d at 403,

406.   Paszkowski held section 8-101 of the Tort Immunity Act

controlled over section 13-214(a) of the Code:

            "Regardless of whether section 13-214(a) is

            more specific than section 8-101 ***, it

            is the legislature's intent that is of fore-

            most importance.   [Citations.]   ***

            According to Ferguson, 'the legislature in-
            tended that section 8-101 of the [Tort

            Immunity] Act apply "broadly to any possible

            claim against a local governmental entity and

            its employees."'   (Emphases added.)

            [Citation.]"   Paszkowski, 213 Ill. 2d at 12-13,

            820 N.E.2d at 408.


                                 - 12 -
The court concluded that "the comprehensive protection afforded

by section 8-101 necessarily controls over other statutes of

limitation or repose."    Paszkowski, 213 Ill. 2d at 13, 820 N.E.2d

at 408.

            Paszkowski clearly establishes that section 8-101 of

the Tort Immunity Act applies to plaintiff's action.    Accord-

ingly, plaintiff's action was time barred and the trial court

properly dismissed it on that basis.

                         B. Equitable Estoppel

            Alternatively, plaintiff argues defendant should be

equitably estopped from asserting the limitations period.

Equitable estoppel precludes a limitations defense "'where [an

insurer's] actions during negotiations are such as to lull the

[plaintiff] into a false sense of security, thereby causing him

to delay the assertion of his rights.'"     Mitchell, 343 Ill. App.

3d at 285-86, 796 N.E.2d at 621, quoting Hermanson v. Country

Mutual Insurance Co., 267 Ill. App. 3d 1031, 1035, 642 N.E.2d

857, 860 (1994).    Equitable estoppel in this context requires six

elements:    (1) the insurer misrepresented or concealed material

facts through its words or conduct; (2) the insurer knew at the

time it made the representations that they were not true; (3) the

plaintiff did not know the truth about the representations both

when they were made and when he acted on them; (4) the insurer

intended or reasonably expected the plaintiff to act upon its

conduct or representations; (5) the plaintiff, in good faith,

reasonably relied upon the misrepresentation to his detriment;

                                - 13 -
(6) the plaintiff would be prejudiced if the insurer is permitted

to assert the limitations period.   See Augustus v. Estate of

Somers, 278 Ill. App. 3d 90, 100, 662 N.E.2d 138, 145 (1996),

citing Vaughn v. Speaker, 126 Ill. 2d 150, 162-63, 533 N.E.2d

885, 890 (1989).

          "Conduct by [a] defendant's insurer can, in some

instances, give rise to 'an apparent intent to pay the claim'

which will estop a defendant from raising the statute of limita-

tions as a defense."   Augustus, 278 Ill. App. 3d at 100, 662

N.E.2d at 145, quoting Vaughn, 126 Ill. 2d at 165, 533 N.E.2d at

891.   However, "'[c]ases in which an insurer's conduct is found

to amount to estoppel typically involve a concession of liability

by the insurer, advance payments by the insurer to the plaintiff

in contemplation of eventual settlement, and statements by the

insurer which encourage the plaintiff to delay filing his ac-

tion.'"   Mitchell, 343 Ill. App. 3d at 286, 796 N.E.2d at 621,

quoting Foamcraft, Inc. v. First State Insurance Co., 238 Ill.

App. 3d 791, 795, 606 N.E.2d 537, 540 (1992).   "[T]he mere

pendency of negotiations conducted in good faith is insufficient

to give rise to estoppel."   Viirre v. Zayre Stores, Inc., 212
Ill. App. 3d 505, 515, 571 N.E.2d 209, 216 (1991).   For example,

in Viirre, the defendant was not equitably estopped from assert-

ing the statute of limitations as a defense even though its

insurer investigated the plaintiff's claim, collected the plain-

tiff's medical bills and records, sent a check for some of the

plaintiff's medical expenses, referred the case for mediation,


                              - 14 -
and hired attorneys to conduct discovery.   Viirre, 212 Ill. App.

3d at 513-14, 571 N.E.2d at 215

           Viewing the evidence regarding the communication

between plaintiff's attorney and the insurance company's claim

representative in the light most favorable to plaintiff, we

cannot infer that the insurance company's conduct was calculated

to lull plaintiff into a reasonable belief that plaintiff's claim

would be settled without suit.    Nothing suggests the insurance

company misrepresented its position or intended or reasonably

expected plaintiff to delay filing suit regarding the collision.

Plaintiff did not allege in his amended complaint and Geisler did

not attest in his affidavit that either Kalfen or King conceded

liability for the collision or indicated the insurance company

intended to settle plaintiff's claim.   Rather, the insurance

company's failure to respond to plaintiff's settlement demand

could just as easily be interpreted to mean it was still consid-

ering the demand or did not intend to pay it.

           Geisler's statement that no one from the insurance

company contended it would assert the Tort Immunity Act's limita-

tions period until after the period had run does not show the

insurance company intended or expected plaintiff to delay filing

suit.   The affidavits reveal Geisler did not know school-bus

collisions were covered by the one-year limitations period.

Nothing indicates that the insurance company knew of Geisler's

mistake concerning the applicable limitations period, and it had

no duty to inform Geisler of the applicable period.   Therefore,

                              - 15 -
the trial court did not err in rejecting plaintiff's equitable-

estoppel argument and dismissing plaintiff's amended complaint.

                       C. Equitable Tolling

          Finally, plaintiff urges the limitations period was

equitably tolled.   The Illinois Supreme Court wrote in Clay v.

Kuhl, 189 Ill. 2d 603, 614, 727 N.E.2d 217, 223 (2000), that

"[e]quitable tolling of a statute of limitations may be appropri-

ate if the defendant has actively misled the plaintiff, or if the

plaintiff has been prevented from asserting his or her rights in

some extraordinary way, or if the plaintiff has mistakenly

asserted his or her rights in the wrong forum."     In Fidelity

National Title Insurance Co. of New York v. Howard Savings Bank,

436 F.3d 836, 839 (7th Cir. 2006), Judge Posner noted that

whether Illinois recognizes equitable tolling is still unresolved

because the Illinois cases mentioning the term seem to mean

equitable estoppel.   However, Judge Posner guessed that Illinois

would accept the "commonplace" and "sensible" tolling doctrine.

Fidelity, 436 F.3d 839.

          According to the Seventh Circuit, equitable tolling,

unlike equitable estoppel, applies even when the defendant is

faultless.   Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996).
Where the plaintiff cannot reasonably be expected to sue in time

because of disability, irremediable lack of information, or other

circumstances beyond his control, the statute of limitations will

be tolled until he is able through the exercise of proper dili-

gence to file his suit.   Miller, 77 F.3d at 191.    For example,


                              - 16 -
equitable tolling postpones the deadline for suing if a plaintiff

cannot discover his injurer's identity within the statutory

period despite the exercise of reasonable diligence.       Fidelity,

436 F.3d at 839.

            Under either the formulation previously articulated by

the Illinois Supreme Court or the Seventh Circuit's approach,

plaintiff's equitable-tolling argument fails.    No extraordinary

circumstances prevented him from filing suit.    Making a settle-

ment demand alone does not toll the limitations period.      Plain-

tiff's attorney's apparent mistake regarding the applicable

limitations period also does not implicate equitable tolling; his

lack of information was not "irremediable" as he could have

discovered the correct filing deadline with some further re-

search.

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.

            STEIGMANN, P.J., and MYERSCOUGH, J., concur.




                               - 17 -
