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Rivera v. Taylor

OPINION FILED SEPTEMBER 26, 1975.

EVODIO RIVERA ET AL., APPELLEES,

v.

GEORGE M. TAYLOR ET AL. — (ROBERT A. GROSSI, ADMR., APPELLANT.)



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. Paul F. Elward, Judge, presiding. MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Plaintiffs filed a complaint in the circuit court of Cook County against George M. Taylor seeking to recover for personal injuries sustained in an automobile accident. Plaintiffs later amended the complaint, adding count II and naming Robert A. Grossi, administrator of the estate of George M. Taylor, as defendant. The administrator's motion to dismiss the suit as not being filed within the limitation period was allowed. The appellate court reversed (18 Ill. App.3d 364), and we granted leave to appeal.

Plaintiffs and George M. Taylor were involved in an automobile accident in Will County, Illinois, on August 10, 1968. Taylor was a resident of Lake County, Indiana. On March 10, 1969, Taylor died (not as a result of the accident). His estate was opened in Lake County, Indiana, and letters of administration were issued to his widow, Ona B. Taylor, on March 13, 1969.

On August 7, 1970, plaintiffs filed their complaint against George M. Taylor in the circuit court of Cook County, Illinois, seeking to recover for the personal injuries they sustained in the accident which had occurred 3 days less than 2 years before the filing of the complaint. Summons was issued and, pursuant to section 16 of the Civil Practice Act, was forwarded to the sheriff of Lake County, Indiana, with directions to serve George M. Taylor (Ill. Rev. Stat. 1969, ch. 110, par. 16). The return on the summons made by the sheriff of that county recited that Taylor was not found in the county. On September 21, 1970, an alias summons was issued by the clerk and forwarded to the sheriff of Sangamon County, Illinois, where service was had upon Taylor by serving the Secretary of State as provided by statute. (Ill. Rev. Stat. 1969, ch. 95 1/2, par. 10-301.) As required, a copy of the process was sent by registered mail to George M. Taylor at his last known address in Gary, Indiana. The return receipt for the registered mail was signed by Taylor's widow, "Mrs. G.M. Taylor."

Taylor's insurance carrier, which was apparently notified of the suit, discussed possible settlement of the case with plaintiffs' attorney. On August 16, 1971, the insurance company informed plaintiffs' attorney of Taylor's death. On October 21, 1971, Robert A. Grossi was appointed administrator of the estate of George M. Taylor, deceased, by the probate division of the circuit court of Cook County, Illinois. An amendment to the complaint which had originally been filed against George M. Taylor was filed on December 1, 1971, adding count II, which asserted plaintiffs' claims for the injuries sustained on August 10, 1968, against Grossi, as administrator of Taylor's estate. The administrator (hereafter defendant) moved to dismiss the amendment to the complaint, alleging that the claims were barred by sections 14 and 19 of "An Act in regard to limitations" (Ill. Rev. Stat. 1967, ch. 83, pars. 15 and 20). The court granted the motion and dismissed the complaint.

Section 14 of the Act requires that a personal injury action be commenced within 2 years after the cause of action accrues.

The plaintiffs do not rely upon the fact that the original complaint was filed before the expiration of the 2-year limitation period to breathe life into their causes of action. Citing Kasper v. Frank, 9 Ill. App.3d 481, they rely only on the amendment to the complaint which, they argue, having been filed less than 9 months after letters of administration were issued by the circuit court of Cook County was timely under section 19 of the Limitations Act, which provides in part:

"If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred, an action may be commenced against his executors or administrators after the expiration of the time limited for the commencement of the action, and within 9 months after the issuing of letters testamentary or of administration." Ill. Rev. Stat. 1967, ch. 83, par. 20.

Defendant contends that section 19 is of no help to the plaintiffs because the words "and is not otherwise barred" in that section refer to other sections of the Limitations Act. Defendant argues that when the 2-year limitation period of section 14 expires following the death of the party against whom an action may be brought and no administrator has been appointed at the expiration date, no action may be maintained thereafter. Alternatively, the defendant contends that section 19 does not preserve plaintiffs' causes of action because George M. Taylor's estate was opened in Indiana on March 13, 1969, and has now been closed. It is defendant's position that since no suit was filed within 9 months after the letters of administration were issued in Indiana, section 19 has not been complied with. Plaintiffs therefore cannot file suit 3 years and almost 4 months after the causes of action accrued and more than 32 months after letters of administration were issued in Indiana.

We do not agree with the defendant's first contention. Section 19 of the Limitations Act was construed by this court in Roberts v. Tunnell, 165 Ill. 631. In that case a mortgagor had died and 6 years and 2 months after his death an administrator of his estate was appointed. Suit was instituted against the administrator. The court held that because of the statute the action was not barred even though the statute of limitations had run after the mortgagor's death and prior to the issuance of letters of administration. This court held that because of the statute "suit might be brought against his administrator whenever he should be appointed." 165 Ill. 631, 633.) It should be noted, however, that section 19 at that time did not contain the words "and is not otherwise barred" now found in this section. We do not consider the addition of these words to mean that the running of the limitation period after the debtor's death and before the issuance of letters of administration changes the holding of Roberts v. Tunnell except to modify it in a manner not relevant to this case as hereinafter indicated.

The possible dangers involved in such an open-end limitation statute were called to the attention of the bar in 1950. (Kahn, Probate and Trust Questions, 39 Ill. B.J. 146 (1950).) The article urged the amendment of section 19. In 1959 the section was amended, the net effect of which was to give the creditor of an estate the full limitation period as provided by statute or 9 months from the death of the debtor, whichever was later, within which to institute suit. The shortcomings of this amendment prompted another amendment to this section at the next session of the General Assembly. 5 W. James, Illinois Probate Law and Practice, sec. 339.16 (Supp. 1975).

At its next session in 1961 the General Assembly, in amending section 19, reenacted substantially the same language which that section had contained before the 1959 amendment and added the questioned language "and is not otherwise barred." It is stated that:

"The effect was to restore the former statutory provisions and the decisional law thereunder. The phrase `and is not otherwise barred' was pointed at the amendment made to section 204 of the Probate Act [Ill. Rev. Stat. 1961, ch. 3, par. 204], barring barable claims when no administration is had within

years from the decedent's death." 5 W. James, Illinois Probate Law and Practice, sec. 339.16, at 215 (Supp. 1975).

The 7-year limitation of the 1961 amendment to section 204 was reduced to 3 years by Public Act 77-2020, effective October 1, 1972. (Ill. Rev. Stat. 1973, ch. 3, par. 204.) This change is not relevant to the present case since suit against the administrator was filed ...


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