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06/16/94 SAFEWAY INSURANCE COMPANY v. MICHAEL D.

June 16, 1994

SAFEWAY INSURANCE COMPANY, AN ILLINOIS CORPORATION, PLAINTIFF-APPELLANT,
v.
MICHAEL D. SPINAK AND ARTHUR H. LEVINSON, INDIVIDUALLY AND D/B/A SPINAK, LEVINSON & ASSOCIATES, A PROFESSIONAL CORPORATION, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOSEPH N. CASCIATO, PRESIDING.

Rehearing Denied November 4, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Johnson, Hoffman, Cahill

The opinion of the court was delivered by: Johnson

JUSTICE JOHNSON delivered the opinion of the court:

Plaintiff, Safeway Insurance Company (hereinafter Safeway), filed a complaint in the circuit court of Cook County against defendants, Michael D. Spinak and Arthur H. Levinson, individually and doing business as Spinak, Levinson & Associates, alleging that defendants filed an unauthorized lawsuit on behalf of Ricardo Sanchez. This "unauthorized filing" complaint was ultimately dismissed by the trial court.

On appeal, Safeway contends (1) the trial court erroneously found that its claim for "unauthorized filing" was barred by the applicable statute of limitations; and (2) the trial court improperly dismissed its punitive damages claim.

We reverse and remand.

On September 27, 1991, Safeway filed its original complaint alleging that on December 30, 1987, defendants filed an unauthorized action against Safeway on behalf of Ricardo Sanchez (hereinafter the Sanchez action). Safeway sought compensatory damages for the fees and expenses it incurred in defense of the Sanchez action and punitive damages predicated upon allegations of malice.

In response, defendants filed a motion to dismiss Safeway's complaint asserting that it failed to state a cause of action. The trial court granted defendants' motion, dismissed Safeway's punitive damages claim with prejudice, and dismissed the remainder of Safeway's complaint with leave to file an amended complaint.

Safeway filed its amended complaint and defendants moved to dismiss it claiming that it was barred by the 2-year statute of limitations applicable to malicious prosecution and abuse of process actions. The trial court granted defendants' motion and Safeway appeals.

In determining the propriety of the trial court's dismissal of Safeway's amended complaint as time barred, it is essential to establish the cause of action pleaded so that the applicable limitation period can be identified. Safeway argues that it pleaded an action for "unauthorized filing" of a lawsuit, an action separate and distinct from malicious prosecution or abuse of process, which is governed by the 5-year limitation period provided in section 13-205 of the Code of Civil Procedure (hereinafter the Code). (Ill. Rev. Stat. 1991, ch. 110, par. 13-205.) Defendants argue that liability for the wrongful filing of a lawsuit is limited to an action for malicious prosecution or abuse of process governed by the 2-year statute of limitations in section 13-202 of the Code (Ill. Rev. Stat. 1991, ch. 110, par 13-202), or the remedy provided in Supreme Court Rule 137 (134 Ill. 2d R. 137) or its predecessor, section 2-611 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2-611). Alternatively, defendants argue that even if the tort of "unauthorized filing" is cognizable, it is also governed by the 2-year limitation period of section 13-202.

In Merriman v. Merriman (1937), 290 Ill. App. 139, 8 N.E.2d 64, this court recognized a cause of action in favor of the defendant in a legal proceeding against the attorney who instituted such proceeding without authority from the putative plaintiff. The court distinguished the action from malicious prosecution and abuse of process. Relying upon authority from other jurisdictions, Merriman held:

"It is an actionable wrong to bring suit in another's name without authority, [citations]; and if the defendant in such action suffers injury by reason of the prosecution of the unauthorized suit against him, he may maintain an action for the actual damages sustained by him in the loss of time, and for money paid to procure the discontinuance of the suit." (290 Ill. App. at 146.)

Our research fails to reveal any other reported case in Illinois which directly concerns the existence of this tort, but one other case has acknowledged the holding in Merriman regarding this issue. See Landau v. Schneider ...


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