APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
515 N.E.2d 410, 162 Ill. App. 3d 248, 113 Ill. Dec. 601 1987.IL.1621
Appeal from the Circuit Court of Rock Island County; the Hon. John Donald O'Shea, Judge, presiding.
JUSTICE SCOTT delivered the opinion of the court. HEIPLE and WOMBACHER, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT
This case involves the trial court's denial of counterdefendant/appellant's motion to dismiss counterplaintiff/appellee's counterclaim under the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, pars. 1, 2). In doing so, the trial court, pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308), certified two questions of law for review indicating that an immediate appeal would materially advance the ultimate termination of litigation. We allowed the appeal.
The two questions certified are: (1) does chapter 110, section 13-207 (Ill. Rev. Stat. 1985, ch. 110, par. 13-207) allow a counterclaimant for wrongful death to sue on the same set of facts set out in plaintiff's complaint for wrongful death when the counterclaim for wrongful death is brought more than two years after the date of death of the parties; (2) if chapter 110, section 13-207, does not allow the counterclaimant to file his counterclaim on the same set of facts set out in plaintiff's complaint, does the rule of Wilson v. Tromly (1949), 404 Ill. 307, 89 N.E.2d 22, violate the equal protection clause of the United States Constitution and article I, section 2, of the Illinois Constitution by irrationally preventing counterclaimants from obtaining full Justice on a claim, the facts of which plaintiff admits knowledge of by his pleadings, and does this irrationally treat plaintiffs who die from injuries differently than plaintiffs who are injured and live, in violation of the same constitutional provisions?
The facts of the case, for purposes here, are quite simple. On August 19, 1981, two motorboats collided upon the Mississippi River near Moline, Illinois. One of the boats was owned by Earl Bruce and the owner of the other was Frank Ege. The collision resulted in the deaths of Earl Bruce and Phillip Halterman, both of whom were occupants of the Bruce boat. Six other people were injured. There is some dispute as to who was driving the Bruce boat at the time of the accident.
The coroner's certificate of death indicates that Earl Bruce died August 20, 1981, and the coroner's certificate lists Phillip Halterman's date of death as August 24, 1981.
On August 15, 1983, Judith A. Bruce, as administrator of the estate of Earl W. Bruce, filed a wrongful death action against Frank C. Ege and Betty J. Jacobs, as administrators of the estate of Phillip Halterman, for the wrongful death of Earl W. Bruce. Subsequently, Linda Halterman-Flynn was substituted for Betty J. Jacobs as administrator of the estate of Phillip Halterman. Frank C. Ege is also no longer involved in this suit.
On June 25, 1986, Linda Halterman-Flynn, as executor of the estate of Phillip Halterman, filed a counterclaim for the wrongful death of Phillip Halterman against Judith A. Bruce, as administrator of the estate of Earl W. Bruce.
On October 29, 1986, the counterdefendant filed a motion to dismiss the wrongful death counterclaim. On December 4, 1986, the trial court, by memorandum opinion, denied the motion to dismiss counterclaim, holding that the counterclaim may be brought pursuant to the Illinois Code of Civil Procedure, section 13-207 (Ill. Rev. Stat. 1985, ch. 110, par. 13-207). The trial Judge also certified the foregoing two questions of law.
Under Illinois law, all wrongful death actions must be "commenced within 2 years after the death of such person." (Ill. Rev. Stat. 1985, ch. 70, par. 2(c).) Appellee asserts, however, that the wrongful death two-year filing requirement does not apply to a situation where the counterclaimant is relying upon the same set of facts as the original claimant, who timely filed within the two-year period. Instead, appellee argues that the counterclaim is actionable pursuant to the Illinois Code of Civil Procedure, section 13-207, which states as follows:
"A defendant may plead a set-off or counterclaim barred by the statute of limitation, while held and owned by him or her, to any action, the cause of which was owned by the plaintiff or person under whom he or she claims, before such set-off or counterclaim was so barred, and not otherwise. This section shall not affect the right of a bona fide assignee ...