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11/30/89 Jeffrey Anderson, Sr., v. Hamilcars Intengan

November 30, 1989

EARL ANDERSON, AN INCOMPETENT, PLAINTIFF-APPELLANT

v.

HAMILCARS INTENGAN, DEFENDANT-APPELLEE (ST. BERNARD HOSPITAL ET AL., DEFENDANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

JEFFREY ANDERSON, SR., Conservator of the Estate of Earnest

548 N.E.2d 479, 191 Ill. App. 3d 1001, 139 Ill. Dec. 94 1989.IL.1840

Appeal from the Circuit Court of Cook County; the Hon. Walter Kowalski, Judge, presiding.

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

The conservator of the estate of Earnest Earl Anderson (Anderson) appeals from the trial court's dismissal of his medical malpractice claim against Hamilcars Intengan, M.D. (Intengan), on the ground that Anderson failed to exercise reasonable diligence in serving Intengan with summons pursuant to Illinois Supreme Court Rule 103(b) (107 Ill. 2d R. 103(b)). Upon review, we conclude that Anderson's lack of diligence in serving Intengan in an earlier suit filed by Anderson in which Intengan was named as a respondent in discovery, and Anderson's subsequent voluntary dismissal of this suit against Intengan, is to be considered on the issue of whether Anderson exercised due diligence in serving Intengan with summons in a subsequently filed medical malpractice claim against Intengan. We further determine that the instant record does not contain sufficient facts to establish whether Anderson's suit was properly dismissed under Rule 103(b). As a result, we reverse and remand for further proceedings.

Anderson filed a medical malpractice suit against Intengan and others on August 18, 1987, and Intengan was served with summons with respect thereto on October 12, 1987. Intengan filed an appearance and a motion to dismiss Anderson's claim against him, based on Illinois Supreme Court Rule 103(b). In this motion to dismiss, Intengan represented that on June 28, 1978, Anderson had filed an action in discovery naming St. Bernard Hospital as defendant and naming Intengan as respondent in discovery. This action in discovery pertained to injuries sustained by Anderson in 1976. According to Intengan's motion to dismiss, Anderson took a voluntary non-suit of the action in discovery on September 22, 1986. In the subsequent medical malpractice suit filed in 1987, Anderson sought recovery from Intengan for the same 1976 injuries which were the basis of his 1978 action in which Intengan was named, not as a defendant, but as a respondent in discovery. Intengan also represented that he had never been served with summons or a copy of Anderson's discovery pleading in the 1978 suit. On the basis of these facts, Intengan argued that Anderson's 1987 malpractice suit against him should be dismissed for failure to exercise reasonable diligence in the service of summons pursuant to Illinois Supreme Court Rule 103(b).

Anderson's response to Intengan's motion to dismiss did not contest that he had earlier filed an action in discovery naming Intengan solely as a respondent in discovery, nor did Anderson contradict that the discovery suit had been voluntarily dismissed approximately eight years after it was filed. Anderson also did not dispute Intengan's assertion that he had never been served with summons in the discovery suit. Instead, Anderson asserted that Rule 103(b) does not apply to discovery suits, and that even if it does, dismissal with prejudice of Anderson's medical malpractice suit was improper because the statute of limitations had not expired on the malpractice claim. Based upon the pleadings and arguments of the parties, the trial court dismissed Anderson's claim against Intengan with prejudice, and Anderson appeals.

Anderson argues that the trial court's dismissal of his medical malpractice claim against Intengan was improper because Illinois Supreme Court Rule 103(b) does not apply where the person named as defendant in a refiled action was only named a respondent in discovery in the plaintiff's original suit. We disagree.

Illinois Supreme Court Rule 103(b) states in pertinent part:

"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." 107 Ill. 2d R. 103(b).

The Illinois Supreme Court has held that a "ruling on Rule 103(b) dismissal motion, made following service of process of a refiled action, . . . requires an examination of the plaintiff's diligence in the original action as well as in the refiled action even if service was never effected in the original action." (Martinez v. Erickson (1989), 127 Ill. 2d 112, 119, 535 N.E.2d 853; see also Muskat v. Sternberg (1988), 122 Ill. 2d 41, 521 N.E.2d 932; Catlett v. Novak (1987), 116 Ill. 2d 63, 506 N.E.2d 586.) This rule was adopted in order to further the following purposes of Rule 103(b):

"Nothing is more critical to the judicial function than the administration of Justice without delay. [Citations.] Central to discharging this function, the judiciary must be unimpeded in considering and rendering judgments on matters before it. [Citations.] Rule 103(b) was adopted by this court to effectuate ...


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