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06/16/87 William Joyce Et Al., v. Warren Wilner Et Al.

June 16, 1987

WILLIAM JOYCE ET AL., INDI

v.

AND AS CO-ADM'RS OF THE ESTATE OF DANIEL JOYCE, DECEASED, PLAINTIFFS-APPELLANTS,

v.

WARREN WILNER ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

509 N.E.2d 769, 156 Ill. App. 3d 702, 109 Ill. Dec. 108 1987.IL.829

Appeal from the Circuit Court of Fulton County; the Hon. Charles H. Wilhelm, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. BARRY and STOUDER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

Plaintiffs, William Joyce and Ruth Morse, filed an action against defendants for the wrongful death of their son, Daniel Joyce. Plaintiffs appeal from an order of the trial court dismissing with prejudice counts VII through XII of their amended complaint. The trial court's order

On November 20, 1984, plaintiffs, as co-administrators of the estate of Daniel Joyce, filed a 10-count complaint against defendants, Warren Wilner, Maxine Schroeder, National Medical Registry, Inc., Graham Hospital, and Rod Maguire. The co-administrators charged each of the defendants with the negligent provision of medical services during the performance of a surgical operation on Daniel Joyce. Each count in the original complaint was filed pursuant to the Illinois Wrongful Death Act. (Ill. Rev. Stat. 1985, ch. 70, par. 1 et seq.) In counts VI through X of the original complaint the plaintiffs alleged that medical, hospital, and funeral expenses were incurred by Daniel Joyce and that plaintiffs as co-administrators became liable to pay these expenses.

On August 22, 1985, the trial court entered an order dismissing those counts of plaintiffs' complaint seeking medical and funeral expenses as to all defendants except Maxine Schroeder. The trial court found that the co-administrators of the estate of Daniel Joyce did not possess a legal right to recover these expenses in the context of a wrongful death action and that the actions for recovery of these items were time barred. On April 30, 1986, the trial court ordered plaintiffs' original complaint dismissed based upon the oral motion of the plaintiff.

On November 21, 1985, William Joyce and Ruth Morse, in their capacities as individual parents and as co-administrators, filed an amended complaint. In counts VII through XII of the amended complaint the plaintiffs in their sole capacity as parents of the minor child, prayed for compensation for the medical, funeral, and hospital expenses pursuant to what is commonly referred to as the family expense statute (Ill. Rev. Stat. 1985, ch. 40, par. 1015). The defendants filed motions to dismiss which alleged that those counts seeking to recover expenses constituted a separate cause which had not been commenced within the applicable, two-year limitation period. On April 30, 1986, the trial court dismissed with prejudice counts VII through XII of the amended complaint finding that the statute of limitations had expired with respect to the right of the parents to recover these expenses.

On May 15, 1986, the court also entered an order pursuant to Supreme Court Rule 308 which allowed an appeal from the court's nonfinal interlocutory order of August 22, 1985, dismissing counts VI through X of the original complaint. (87 Ill. 2d R. 308.) The question of law certified by the trial court was whether an administrator of an estate can recover medical and funeral expenses in a wrongful death action.

Plaintiffs first argue that the trial court erred in dismissing those counts of their amended complaint in which the plaintiffs as individuals sought to recover for medical, hospital, and funeral expenses. Plaintiffs argue that those counts in their amended complaint seeking to recover these expenses are not time barred because under section 2-616 of the Civil Practice Law they relate back to the date the original complaint was filed. (Ill. Rev. Stat. 1985, ch. 110, par. 2-616.) Defendants argue that those counts in plaintiffs' amended complaint seeking to recover for medical and funeral expenses do not "relate back" under section 2-616 to the original complaint because they constitute a new cause of action by new parties.

Section 2-616(b) of the Code of Civil Procedure provides that a cause of action set up in an amended pleading shall not be barred by lapse of time under a statute or contract prescribing or limiting the time within which an action may be brought, if the time prescribed by the statute had not expired when the original pleadings were filed, and the cause of action asserted in the amended pleadings grew out of the same transaction or occurrence set up in the original pleadings. Ill. Rev. Stat. 1985, ch. 110, par. 2-616(b).

The purpose of section 2 -- 616(b) is to prevent a person from losing a cause of action due to technicalities. (Frankenthal v. Grand Trunk West R.R. Co. (1983), 120 Ill. App. 3d 409, 458 N.E.2d 530.) It is not necessary that a cause of action set forth in an amended pleading be substantially the same as the one stated in the original pleading. (Zeh v. Wheeler (1986), 111 Ill. 2d 266, 489 N.E.2d 1342.) Instead, the right to amend and the relation back of an amendment depend on whether the original complaint furnished to the defendant all the information necessary for him to prepare a defense to the claim subsequently asserted in the amended complaint. Krieger v. Village of Carpentersville (1972), 8 Ill. App. 3d 243, 289 N.E.2d 481.

The plaintiffs cite Redmond v. Central Community Hospital (1978), 65 Ill. App. 3d 669, 382 N.E.2d 95, to support their argument that their amended complaint relates back to the date of their original complaint. In Redmond, the plaintiff filed a wrongful death action against the defendant for the loss of support to her children in her individual capacity. Following the expiration of the two-year statute of limitations she was appointed as administratrix of her deceased husband's estate. She then filed an amended complaint in her new ...


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