APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
509 N.E.2d 1032, 155 Ill. App. 3d 1093, 109 Ill. Dec. 193 1987.IL.882
Appeal from the Circuit Court of Whiteside County; the Hon. Edward Keefe, Judge, presiding.
JUSTICE HEIPLE delivered the opinion of the court. SCOTT and STOUDER, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE
The circuit court of Whiteside County dismissed the plaintiff's case against defendant Subbiah and granted the motion for summary judgment made by the remaining defendants. The trial court's rulings were based on appellate and supreme court decisions issued after the circuit court took each of the defense motions under advisement. The plaintiff appeals, arguing that the trial court erred in applying the rules of the recently decided appellate and supreme court cases retroactively to this cause. We agree with the plaintiff and therefore reverse and remand.
On October 24, 1980, Lorenzo Martinez filed a complaint in Cook County against Dr. John Erickson, Dr. Darroll Erickson, and the Sterling-Rock Falls Clinic, Ltd. (the clinic). The complaint, which alleged medical malpractice, was filed on the day the applicable statute of limitations expired. On February 19, 1981, Martinez filed a medical malpractice suit in Cook County against Dr. Bakkiam Subbiah. That complaint was filed one day before the applicable statute of limitations expired. The original suits remained pending for several months, during which time the plaintiff neither attempted nor effectuated service of process upon any of the defendants.
The cause of action against the Ericksons and the clinic was voluntarily dismissed without prejudice on July 27, 1981. On September 22, 1981, the cause of action against Subbiah was dismissed for want of prosecution with leave to refile within one year.
On July 26, 1982, acting pursuant to section 13-217 (Ill. Rev. Stat. 1981, ch. 110, par. 13-217), the plaintiff refiled against all defendants in Whiteside County. Summonses were also issued on July 26, 1982. The clinic and the Ericksons were served in the refiled case on July 29 and Subbiah was served on August 12.
Subbiah filed a motion to dismiss with prejudice for failure to exercise reasonable diligence in obtaining service of process after the expiration of the applicable period of limitations as required by supreme court rule 103(b) (87 Ill. 2d 103(b)). The clinic and the Ericksons initially filed an answer to the complaint, but were later granted leave to amend their answer to include the affirmative defense of the statute of limitations and unreasonable delay in obtaining service under Rule 103(b).
On June 17, 1985, the trial court heard arguments on defendant Subbiah's motion and took the matter under advisement pending this court's decision in Dillie v. Bisby (1985), 136 Ill. App. 3d 170, which was entered August 27, 1985. On September 17, 1985, the trial court filed a written opinion granting Subbiah's motion to dismiss, in accordance with the ruling in Dillie. The remaining defendants then filed a motion for summary judgment, asserting that the plaintiff's action was barred by the statute of limitations. The plaintiff later moved the court to reconsider its decision granting Subbiah's motion to dismiss. On February 21, 1986, the court granted the motion for summary judgment as to defendant Darroll Erickson and took the remaining motions under advisement.
On July 28, 1986, the trial court denied the plaintiff's motion to reconsider its ruling as to Subbiah. On that date, the court also granted summary judgment in favor of John Erickson and the clinic, citing Dillie and the supreme court's opinion in O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273 (filed April 18, 1986) as authority for its rulings. The plaintiff appeals the dismissal of Subbiah and the order of summary judgment in favor of John Erickson and the clinic.
On appeal to this court, the plaintiff contends that under Illinois law in 1982 when he refiled this action, a plaintiff had, for a period of one year, an absolute right to refile an action which was dismissed for want of prosecution or voluntarily dismissed and a reasonable time thereafter to serve the defendants, regardless of any delay in service of process following the original filing of suit. He further asserts that rules announced in Dillie and O'Connell represent a change in existing law and therefore should not have been applied retroactively to this case. The defendants argue that Dillie and O'Connell did not establish any new principles of law overruling clear past precedent, and that even if they did overrule established precedent, prospective-only application of the new rules is not mandated. We find that the cases upon which the trial court relied represent a substantial change in Illinois law and therefore were not intended to apply retroactively.
The Illinois Supreme Court may apply its decisions prospectively when retroactive application would be inequitable. Although the court did not indicate in O'Connell whether the decision should apply retroactively, the court has previously applied the test developed by the United States Supreme Court in Chevron Oil Co. v. Huson (1971), 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349, for determining when a decision in a civil case should be applied prospectively only. The first factor in Chevron, which is emphasized by the Illinois and United States Supreme Courts (see Board of Commissioners v. County of Du Page (1984), 103 Ill. 2d 422), is that the decision to be applied nonretroactively must establish a new principle of law, either by overruling a clear past precedent on which litigants may have relied or by deciding a case of first impression whose result was not clearly ...