¶1specially concurring:
¶2I agree that this case must be remanded to the trial court, but, in my opinion, the hearing should be to determine whether the defendants have waived their right to assert the statute of limitations as a defense, not whether they are estopped to raise that defense. I do not agree that there has been any question of fact raised in this case concerning equitable estoppel. In the first place, the plaintiffs were not lulled into failing to file their complaint before the limitation period had expired, because they in fact did file it five days before the statute ran. The plaintiffs just sued a party that did not exist. Their failure to sue the proper party cannot be attributed to the conduct of the representative of the insurance company, because his affidavit filed in the trial court shows that he did not know Speaker was deceased until plaintiffs’ attorney called and told him of this fact after the limitation period had run. The party against whom equitable estoppel is asserted must have had knowledge at the time of the alleged representations that they were not true. (Lowenberg v. Booth (1928), 330 Ill. 548; Barbour v. South Chicago Community Hospital (1987), 156 Ill. App. 3d 324, 330; Stewart v. O’Bryan (1977), 50 Ill. App. 3d 108, 111; see also Chicago Park District v. Kenroy, Inc. (1980), 78 Ill. 2d 555, 563.) Silence may give rise to equitable estoppel, but only when there is knowledge of the facts on one side and ignorance on the other. (Town & Country Bank v. James M. Can-field Contracting Co. (1977), 55 Ill. App. 3d 91, 95.) Thus, the essential element of knowledge by the defendant has not been shown in this case, either by the pleadings or the memorandum submitted to the trial court by the plaintiffs and the affidavit attached thereto.
¶3Furthermore, there had been no contact at all between the representative of the insurance company and plaintiffs’ attorney for more than four months before the limitation period had expired. In Suing v. Catton (1970), 118 Ill. App. 2d 468, 473, the appellate court stated: “Where the inducement for delay has ceased to operate before the expiration of the limitation period and the plaintiff has a reasonable time remaining within which to institute his suit, he cannot raise estoppel as an excuse for not filing his action within the time specified by the statute of limitations,” citing Reat v. Illinois Central R.R. Co. (1964), 47 Ill. App. 2d 267.
¶4As indicated above, plaintiffs were not lulled into not filing their complaint within the limitation period, because they had filed it before the time had expired. However, the rationale of the principle stated in Suing v. Catton applies equally well to this case. Whatever erroneous inferences plaintiffs may have drawn as a result of previous contacts with the representative of the insurance company concerning whether ^Speaker was living, the fact remains that the last contact between the insurance company and plaintiffs’ attorney occurred more than four months before the limitation period had expired. Thus, plaintiffs had a reasonable time before the statute ran to ascertain whether Speaker was living, and should not now be permitted to excuse this error by claiming estoppel. In Vail v. Northwestern Mutual Life Insurance Co. (1901), 192 Ill. 567, 570, this court said: “A party claiming the benefit of an estoppel cannot shut his eyes to obvious facts, or neglect to seek information that is easily accessible, and then charge his ignorance to others.”
¶5Although I do not agree with the reasoning of the majority opinion on the estoppel issue, there is one thin thread of evidence in this case which compels me to concur in the result reached by the majority. This thin thread involves waiver, and not equitable estoppel. Although these two doctrines are often discussed together and the terms are often used interchangeably, they are in fact two different concepts, and waiver may be established even though the acts and conduct are not sufficient to establish estoppel. (See generally 28 Am. Jur. 2d Estoppel & Waiver §30 (1966).) Waiver is a voluntary and intentional relinquishment of a known right. (Harris v. Faultfinders, Inc. (1981), 103 Ill. App. 3d 785.) Waiver, as distinguished from estoppel, depends upon what the defendant did or intended to do, without regard to the effect of his conduct upon the plaintiffs. Pantle v. Industrial Comm’n (1975), 61 Ill. 2d 365, 372.
¶6In the case before us, plaintiffs attached an affidavit to their “Memorandum in Opposition to Motion to Dismiss,” which was filed in the trial court in response to the defendant’s motion to dismiss. The motion to dismiss was based on plaintiffs’ failure to file the complaint within the time permitted by law. The affidavit is that of the attorney for the «plaintiffs. In the affidavit, the attorney, among other things, states that he had negotiated with the defendant’s insurance company “and last attempted negotiation with Iowa Mutual Insurance Company on December 30, 1985, after the Statute of Limitations had run.” From this quoted language it is not clear whether plaintiff’s attorney last attempted to negotiate on December 30, 1985, or whether the insurance company had tried to negotiate a settlement on that date after the limitation period had expired. A reply memorandum was filed in the trial court, attached to which was an affidavit of the employee of the insurance company who handled the Speakers file. In this affidavit, he states, “I did not communicate with plaintiff’s counsel concerning settlement after July 29, 1985.” Thus, it appears that there may be a conflict in the two affidavits as to whether the insurance company attempted to negotiate after the statute had run. I, therefore, agree that this case should be remanded to the trial court and that a hearing should be held. However, in my opinion, the hearing should be limited to the question of waiver; that is, did the defendant’s insurance carrier attempt to negotiate a settlement after the limitation period had expired, and if so, did the insurance company thereby indicate a relinquishment of its right to assert the limitations defense. For the reasons stated herein, I concur that this case should be remanded to the trial court, but I do not agree that a hearing should be held on the question of estoppel, or that anything has been presented to this court or to the trial court which indicates that an equitable estoppel can be asserted against the defendants.
¶7JUSTICE MILLER joins in this special concurrence.