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03/23/88 Sylvia Muskat, v. Paul Sternberg

March 23, 1988

SYLVIA MUSKAT, APPELLANT

v.

PAUL STERNBERG, M.D., ET AL., APPELLEES



SUPREME COURT OF ILLINOIS

521 N.E.2d 932, 122 Ill. 2d 41, 118 Ill. Dec. 455 1988.IL.404

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Alan E. Morrill, Judge, presiding.

APPELLATE Judges:

JUSTICE RYAN delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN

Plaintiff, Sylvia Muskat, brought suit in the circuit court of Cook County for injuries allegedly suffered as a result of cataract removal surgery. The defendants included the surgeon, the hospital at which the operation was performed, and the manufacturer of a corrective lens which was implanted in the plaintiff's eye.

Plaintiff's surgery was performed between July 23 and July 26, 1980. Sometime thereafter, plaintiff alleged, the lens which had been implanted in her right eye became loose and migrated from its intended location in her eye, causing pain and reduced vision. Plaintiff filed a complaint on July 22, 1982, pleading negligence and product liability theories. Defendants contend that the complaint was filed one day before the expiration of the applicable statute of limitations. Plaintiff does not dispute this. The suit remained pending for two years, during which time plaintiff neither attempted nor obtained service of process upon any of the defendants. The action was dismissed for want of prosecution on July 23, 1984.

On July 23, 1985, plaintiff refiled her complaint pursuant to section 13-217 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-217). Defendants were served with process in the refiled suit between August 19, 1985, and October 25, 1985. They responded by moving to dismiss under Rule 103(b) (107 Ill. 2d R. 103(b)), alleging that plaintiff had failed to exercise reasonable diligence in effectuating service of process. The trial court denied the motions on the ground that the appropriate period of time by which to measure plaintiff's diligence commenced with refiling of the lawsuit.

The appellate court granted the defendants' joint application for interlocutory appeal under Rule 308 (107 Ill. 2d R. 308), and the following question was certified:

"Whether, in a case in which the plaintiff's original lawsuit was dismissed for want of prosecution, and no Supreme Court Rule 103(b) motion was filed and no service of process was attempted or obtained in the original lawsuit, a trial court may consider any lack of reasonable diligence in obtaining service of process in the original lawsuit in ruling on a Supreme Court Rule 103(b) motion in the refiled lawsuit."

The appellate court answered the certified question in the affirmative, reversed the trial court's denial of the Rule 103(b) motion to dismiss and remanded for further proceedings. (151 Ill. App. 3d 304.) Thereafter, we granted the plaintiff's petition for leave to appeal. 107 Ill. 2d R. 315.

In this case, we are once again called upon to explore the interrelationship between Rule 103(b), which requires the exercise of reasonable diligence in obtaining service of process, and section 13 -- 217, which permits plaintiffs to refile suits beyond the statute of limitations under certain circumstances.

Our Rule 103(b) provides:

"Dismissal for Lack of Diligence. If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case ...


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