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09/28/95 BOATMEN'S NATIONAL BANK BELLEVILLE v.

September 28, 1995

BOATMEN'S NATIONAL BANK OF BELLEVILLE, AS SPECIAL ADM'R OF THE ESTATE OF LYNN TARTT, DECEASED, APPELLANT,
v.
DIRECT LINES, INC., ET AL., APPELLEES.



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of St. Clair County, the Hon. Milton Wharton, Judge, presiding.

The Honorable Justice Miller delivered the opinion of the court:

The opinion of the court was delivered by: Miller

JUSTICE MILLER delivered the opinion of the court:

This appeal arises from a wrongful death action filed in the circuit court of St. Clair County. While several issues are presented for review, we deal primarily with the issue of whether the ninth-amended complaint filed after the applicable statute of limitations expired relates back to the timely filed original complaint.

On November 22, 1986, decedent, Lynn Tartt, died from injuries she sustained in a car accident. Decedent had been a passenger in a car driven by Russell Glastetter when the car collided with the rear-end of a truck owned by Direct Lines, Inc., and driven by Ronald Giesler, an employee of Direct Lines. Giesler had stopped the truck in a lane of traffic behind a car, driven by John Reynolds. Reynolds' car had earlier been involved in a separate automobile accident that rendered the car inoperable. Decedent was survived by her father, Charles Hughes, her mother, Virginia Miller, three sisters, Christine Dockter, Kathleen Hughes, and Kimberly Hughes, a brother, John Hughes, and herestranged husband, Richard Tartt (Tartt). Decedent left no surviving children.

Decedent's father was appointed special administrator of decedent's estate. (Ill. Rev. Stat. 1985, ch. 70, par. 2.1.) On May 9, 1988, decedent's father, in his capacity as special administrator, timely filed a complaint under the Wrongful Death Act (Act) (see Ill. Rev. Stat. 1985, ch. 70, par. 1 et seq.) in the circuit court of St. Clair County against Direct Lines and Reynolds. The complaint sought damages on behalf of decedent's "next of kin." The complaint did not specifically name decedent's next of kin. This complaint was subsequently dismissed for stating claims against different defendants in a single count. See Ill. Rev. Stat. 1985, ch. 110, par. 2613(a).

An amended complaint was filed on July 18, 1988, on behalf of decedent's "next of kin." Count I was directed at Direct Lines; count II was against Reynolds; and a third count was added against the estate of Glastetter. On September 19, 1988, a second-amended complaint was filed on behalf of decedent's "next of kin." A third-amended complaint, filed on October 21, 1988, added Giesler as a defendant and also specifically alleged that decedent's "next of kin" were her parents, Virginia Miller and Charles Hughes.

On October 26, 1988, Direct Lines moved to dismiss the third-amended complaint, pursuant to section 2-615 of the Code of Civil Procedure, after discovery revealed that decedent was married at the time of her death. (Ill. Rev. Stat. 1985, ch. 110, par. 2-615.) Direct Lines argued that because decedent was survived by a spouse, decedent's parents were not "next of kin" within the meaning of the Act (Ill. Rev. Stat. 1985, ch. 70, par. 2) and, therefore, a wrongful death action could not be prosecuted on their behalf.

According to responses to interrogatories, decedent was married at the time of her death, but had been living separate and apart from her husband for over three years. Tartt was not identified as decedent's husband, although his name appeared in a list of people having knowledge of the accident in question and in response to a question by Direct Lines asking whether if decedent was married, the surviving spouse had been married before. Responses also indicated that decedent had filed a petition for dissolution of marriage that was scheduled to be finalized the week after the accident. In response to an interrogatory by Direct Lines, the decedent's beneficiaries or survivors were listed as decedent's mother, Virginia Miller, her father, Charles G. Hughes, three sisters, Christine Dockter, Kathleen Hughes, and Kimberly Hughes, and a brother, John Hughes. Tartt was not listed as a beneficiary or survivor. Plaintiff amended this answer on February 21, 1990, to include Tartt as a beneficiary or survivor.

In a memorandum in response to Direct Lines' motion to dismiss, decedent's father indicated that decedent and Tartt were married on October 17, 1980, had separated on August 15, 1984, and that decedent had filed a petition for dissolution of marriage on November 13, 1986. Decedent's father also alleged that there had been no contact between decedent and Tartt after the separation. At trial, however, Tartt testified that the decedent had called him on several occasions after the separation. Decedent's father further indicated in the memorandum that attempts had been made to notify Tartt of decedent's death and pending lawsuit, but to no avail. In support of the preceding statement, decedent's mother and father stated in affidavits that they had heard Tartt was living in Corpus Christi, Texas, two years ago, but they did not know where he currently resided. An affidavit was also filed by an attorney who had unsuccessfully tried to locate Tartt. Tartt, however, testified at trial that the decedent's sister, Kimberly, called him the night before decedent's funeral to inform him of decedent's death.

Citing Maga v. Motorola, Inc. (1987), 163 Ill. App. 3d 524, 114 Ill. Dec. 619, 516 N.E.2d 774, the trial judge dismissed the third-amended complaint on November 30, 1988. Maga held that where a decedent is survived by a spouse, decedent's parents and siblings were not "next of kin" within the meaning of the Act and, accordingly, a wrongful death action could not be prosecuted on their behalf. ( Maga, 163 Ill. App. 3d at 530.) The trial judge gave decedent's father, as special administrator, 60 days in which to appoint a corporate administrator to bring the wrongful death action. It was further ordered that plaintiff, upon substitution, was to bring the wrongful death action on behalf of "all known parties and unknown parties."

Boatmen's National Bank of Belleville (plaintiff) was subsequently appointed special administrator of decedent's estate. It filed a fourth-amended complaint on January 12, 1989. This complaint alleged that the wrongful death action was being brought on behalf "of all known and unknown parties and next of kin of [decedent], specifically Charles Hughes, the natural father of the decedent, Virginia Miller, the natural mother of decedent, Christine Dockter, natural sister of the decedent, Kathleen J. Hughes, natural sister of the decedent, Kimberly Ann Hughes, natural sister of the decedent, and John Hughes, natural brother of the decedent." The complaint did not name Tartt as a party.

Defendants successfully moved to dismiss the fourth-amended complaint on the basis that plaintiff failed to specifically identify decedent's husband as a "known party" and that decedent's parents and siblings were not entitled to recover under the Act where a surviving spouse existed. The trial judge granted leave to file an amended complaint and ordered that the amended pleading include Tartt as a necessary party.

On March 29, 1989, plaintiff filed a fifth-amended complaint. The complaint designated the same "next of kin" as the fourth-amended complaint, but also included "Richard Tartt, estranged husband of Lynn Tartt, whose whereabouts is [sic] unknown and it is unknown if Richard Tartt is living." Tartt, however, was not specifically included as a "next of kin" who suffered injuries due to decedent's death. Defendants thereafter moved to dismiss the fifth-amended complaint, again contending that where a decedent is survived by a spouse, decedent's parents and siblings are not entitled to recovery under the Act. In an affidavit ...


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