APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
523 N.E.2d 106, 168 Ill. App. 3d 1075, 119 Ill. Dec. 638 1988.IL.523
Appeal from the Circuit Court of Cook County; the Hon. John W. Gustafson, Judge, presiding.
JUSTICE FREEMAN delivered the opinion of the court. McNAMARA, J., concurs. JUSTICE RIZZI, specially Concurring.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Plaintiff, Robert Lafin, filed a three-count contract action against defendant, Allstate Insurance Company, alleging it unjustifiably denied his claim for fire damage. Defendant moved to dismiss plaintiff's cause for failure to comply with discovery (107 Ill. 2d R. 219(c)(v)), and thereafter plaintiff moved to voluntarily dismiss his complaint pursuant to section 2-1009 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009.) The trial court granted plaintiff's motion and defendant appeals. The issue presented for our review is whether sections 2-1009 and 13-217 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2-1009, 13-217) conflict with Supreme Court Rule 219(c) (107 Ill. 2d R. 219(c)) and thus infringe upon the supreme court's authority to regulate the Illinois judicial system.
On April 7, 1981, a fire completely destroyed plaintiff's residence located at Rural Route 3 in Earlville. At the time of the fire, plaintiff's home was insured by plaintiff's policy which provided coverage for certain perils and risks including loss caused by fire.
On September 30, 1981, defendant notified plaintiff that his claim had been denied because he violated the terms and conditions of the policy. Specifically, defendant alleged that plaintiff intentionally set or caused the fire to be set. Seeking to collect the insurance proceeds allegedly due under the policy, plaintiff filed a three-count complaint against defendant on March 29, 1982. On September 23, 1982, defendant answered and asserted fraud and misrepresentation as affirmative defenses. Thereafter, defendant filed interrogatories on July 23, 1984, and on January 14, 1986, the trial court ordered the interrogatories answered on or before February 15, 1986. On March 31, 1986, while the interrogatories remained unanswered, defendant filed a motion to dismiss for failure to comply with discovery. Documents attached to its motion revealed that defendant had previously sent two letters pursuant to Supreme Court Rule 201(k) (107 Ill. 2d R. 201(k)) and made two telephone calls requesting compliance. At the hearing on defendant's motion plaintiff moved to voluntarily dismiss his cause pursuant to section 2-1009 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009.) The trial court granted plaintiff's motion, holding plaintiff had an absolute right to voluntarily dismiss his cause notwithstanding defendant's pending motion to dismiss.
Defendant, relying on O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322, contends that section 2-1009 and section 13-217, which permit a plaintiff to commence a new action within one year after an action is voluntarily dismissed (Ill. Rev. Stat. 1985, ch. 110, pars. 2-1009, 13-217), deprive the judiciary of its ability to discharge its duties under Supreme Court Rule 219(c) (107 Ill. 2d R. 219(c)).
In O'Connell the plaintiff filed a medical malpractice complaint on the last day prior to the running of the statute of limitations and then delayed several months in attempting to effect service. Thereafter, defendant moved to dismiss the plaintiff's cause with prejudice for failure to exercise reasonable diligence to obtain service after the applicable statute of limitations had expired (107 Ill. 2d R. 103(b)), and plaintiff voluntarily dismissed his cause pursuant to section 2-1009 (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009). Noting that due diligence in serving process is essential to the administration of Justice without delay, the supreme court held that "where a plaintiff relies on sections 2-1009 and 13-217 in response to a pending Rule 103(b) motion, the Rule 103(b) motion must be heard on its merits prior to a ruling on a plaintiff's motion to dismiss under section 2-1009." (O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 283, 492 N.E.2d 1322.) Further, the court determined that sections 2-1009 and 13-217, as invoked by the plaintiff, "unduly infringe upon this court's constitutional authority to regulate the judicial system of Illinois." O'Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 281, 492 N.E.2d 1322.
Stressing the similarities between the case at bar and O'Connell, the defendant argues that the court's interest in insuring a prompt resolution of pending litigation will not be served where a plaintiff is permitted to circumvent discovery rules by voluntarily nonsuiting his case with the option of refiling. Therefore, defendant concludes that Rule 219(c) conflicts with sections 2 -- 1009 and 13 -- 217. We disagree.
Supreme Court Rule 219(c) empowers the court to impose sanctions for failure to comply with discovery. Among the numerous sanctions available to the court is the option to dismiss the plaintiff's lawsuit with prejudice. This sanction, however, is the most severe available to the court and is employed only as last resort. (Humboldt-Armitage Corp. v. Illinois Fair Plan Association (1980), 86 Ill. App. 3d 888, 408 N.E.2d 307.) On the other hand, failure to exercise reasonable diligence to obtain service after the expiration of the statute of limitations requires the court to dismiss the cause with prejudice. (107 Ill. 2d R. 103(b).) Although the purpose behind the rules requiring prompt service of process and compliance with discovery is to keep litigation progressing without delay or prejudice, the specific purpose of Rule 103(b) is to alert defendants to the pendency of a civil suit, whereas the purpose of Rule 219 is solely to insure evidence is made available to the litigants while it exists. The option available to the trial court to impose a discovery sanction versus the mandate to dismiss a cause with prejudice for failure to exercise due diligence to obtain service distinguishes the rules. Where the trial court is vested with the authority to impose various sanctions for failure to comply, we conclude that the statutory provisions in question do not unduly infringe upon the supreme court's constitutional rulemaking authority when such sanctions are relied upon to escape a pending motion to dismiss premised upon Rule 219(c). Further, in reaching our Conclusion we have reviewed Mancuso v. Beach (1986), 149 Ill. App. 3d 188, 500 N.E.2d 589, Highland v. Stevenson (1987), 153 Ill. App. 3d 390, 505 N.E.2d 776, appeal denied (1987), 116 Ill. 2d 555, Rohr v. Knaus (1987), 153 Ill. App. 3d 1013, 506 N.E.2d 634, appeal denied (1987), 116 Ill. 2d 575, Russ v. Gandhy (1986), 149 Ill. App. 3d 660, 500 N.E.2d 1032, appeal denied (1987), 113 Ill. 2d 584, Kendle v. Village of Downers Grove (1987), 156 Ill. App. 3d 545, 509 N.E.2d 723, appeal denied (1987), 116 Ill. 2d 559, and Gibellina v. Handley (1987), 158 Ill. App. 3d 866, 511 N.E.2d 884, appeal allowed No. 65781 and cause consolidated with No. 66010, Schmitt v. Motorola, Inc. (1987), 160 Ill. App. 3d 1059, 513 N.E.2d 1069. In Mancuso, Highland, Rohr, Russ, Kendle and Gibellina, the appellate courts addressed the propriety of granting plaintiffs' section 2-1009 motions to dismiss while defense motions to dismiss premised upon section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615) (Mancuso) or a motion for summary judgment (Highland, Rohr, Russ, Kendle and Gibellina) were pending. In each cause, the court determined that the plaintiff had a right to voluntarily dismiss (Ill. Rev. Stat. 1985, ch. 110, par. 2-1009) the cause prior to consideration of defendant's motion. Our review of these cases supports our Conclusion that the supreme court's holding in O'Connell is specifically limited to the interrelationship and conflict between Rule 103(b) and sections 2-1009 and 13-217 of the Code of Civil Procedure. See also Griffin v. Area E-7 Hospital Association (1987), 158 Ill. App. 3d 720, 511 N.E.2d 256, appeal denied (1987), 116 Ill. 2d 554.
Accordingly, the judgment of the circuit court ...