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04/10/97 MARY M. JABLONSKI AND RICHARD JABLONSKI v.

April 10, 1997

MARY M. JABLONSKI AND RICHARD JABLONSKI, PLAINTIFFS-APPELLANTS,
v.
JAMES E. ROTHE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 95--L--1421. Honorable Jack Hoogasian, Judge, Presiding.

Released for Publication May 9, 1997.

The Honorable Justice McLAREN delivered the opinion of the court. Inglis and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Mclaren

The Honorable Justice McLAREN delivered the opinion of the court:

Plaintiffs, Mary Jablonski and Richard Jablonski, appeal the circuit court's order dismissing count II of their amended complaint against defendant, James Rothe. Plaintiffs contend that the court erred in holding that their amended complaint, naming plaintiffs as administrators of the decedent's estate, did not relate back to the filing of the original complaint. We reverse and remand.

Plaintiffs' complaint alleges that on August 26, 1993, Mary Jablonski was pregnant with a viable fetus, when defendant's car struck hers from behind. As a direct and proximate result of the accident, the fetus was delivered stillborn on October 6, 1993.

Plaintiffs filed their complaint August 24, 1995. Count II sought damages for plaintiffs' injuries on a theory of common-law negligence. Count II purported to state a cause of action under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1994)) for the death of the fetus.

On defendant's motion, the trial court dismissed the complaint on the ground that plaintiffs failed to bring the action as representatives of the decedent's estate. On January 12, 1996, plaintiffs filed an amended complaint adding the allegation that they had been appointed special administrators of the fetus' estate.

Defendant moved to dismiss the amended complaint, arguing that the two-year statute of limitations for actions under the Wrongful Death Act (the Act) (740 ILCS 180/2 (West 1994)) had expired before plaintiffs filed their amended complaint. The court dismissed the complaint with prejudice. After the court denied their motion to reconsider, plaintiffs filed a timely notice of appeal.

Plaintiffs contend that their amended complaint relates back to the filing of the original complaint pursuant to section 2--616(b) of the Code of Civil Procedure (735 ILCS 5/2--616(b) (West 1994)), which provides:

"The cause of action, cross claim or defense set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, or the defense or cross claim interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition precedent has in fact been performed ***." 735 ILCS 5/2--616(b) (West 1994).

The purpose of this section is to preserve causes of action, including those brought under the Act, against loss by reason of technical rules of pleading. Courts should liberally construe section 2--616 to allow the resolution of litigation on the merits and to avoid elevating questions of form over questions of substance. Boatmen's National Bank v. Direct Lines, Inc., 167 Ill. 2d 88, 102, 212 Ill. Dec. 267, 656 N.E.2d 1101 (1995). The rationale behind the same transaction or occurrence rule is that a defendant will not be prejudiced by an amendment so long as "his attention was directed, within the time prescribed or limited, to the facts that form the basis of the claim asserted against him." Simmons v. Hendricks, 32 Ill. 2d 489, 495, 207 N.E.2d 440 (1965).

Accordingly, numerous courts have held that, where a complaint brought under the Act failed to name the administrator of the decedent's estate, an amended complaint filed after the expiration of the statute of limitations naming the administrator related back to the filing of the original complaint. For example, in Redmond v. Central Community Hospital, 65 Ill. App. 3d 669, 21 Ill. Dec. 801, 382 N.E.2d 95 (1978), plaintiff filed a timely complaint in her individual capacity for the wrongful death of her husband. After the statute of limitations expired, plaintiff filed an amended complaint as the administrator of her husband's estate. The court noted that the cause of action alleged in the amended complaint was the same as that set up in the original pleading and that both arose out of the same occurrence. Therefore, the amended complaint related back to the filing of the original. Redmond, 65 Ill. App. 3d at 677.

Similarly, in Hardimon v. Carle Clinic Ass'n, 272 Ill. App. 3d 117, 208 Ill. Dec. 824, 650 N.E.2d 281 (1995), plaintiff initially sued in her individual capacity. After the statute of limitations ran, she successfully petitioned the probate court for appointment as special administrator of the ...


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