Appeal from Circuit Court of Cass County No. 97L10 Honorable Robert L. Welch, Judge Presiding.
The opinion of the court was delivered by: Justice Garman
Plaintiff Gregory Sepeda appeals from the March 30, 1998, order of the circuit court of Cass County dismissing with prejudice his lawsuit against defendant Alfred B. LaBarre, special administrator of the estate of Kathleen M. Edwards. We reverse and remand.
On December 18, 1995, plaintiff was injured when his truck collided with a car being driven by the decedent. She and her infant son, Toby James Edwards, were killed in the accident. They were survived by her husband, Daniel Herbert Edwards (Edwards). Because no estate was opened for decedent, plaintiff filed a petition in the circuit court of Cass County for the appointment of a special administrator on December 5, 1997. The petition states that it is brought pursuant to section 2-1008 of the Civil Practice Act (Act) (735 ILCS 5/2-1008 (West 1996)) and erroneously names Toby James Edwards as the surviving husband and sole surviving heir of decedent.
Notice of the hearing on the petition was mailed by plaintiff's counsel on December 5, 1997, and addressed to the deceased child, Toby James Edwards, instead of his father, Daniel Herbert Edwards. Accompanying the notice was a letter from counsel for the plaintiff, also addressed to Toby James Edwards. These items were addressed to the Edwards' home. A copy of the notice was also sent to the elder Edwards' place of employment, but it, too, was addressed to his late son.
At the December 16, 1997, hearing, no one appeared for the estate of Kathleen M. Edwards and defendant was appointed as administrator. Also on December 16, 1997, plaintiff filed his complaint against the estate, alleging negligence on the part of the decedent.
On February 9, 1998, defendant entered a special and limited appearance for the purpose of contesting jurisdiction (735 ILCS 5/2-301 (West 1996)), asserting that the failure to give notice to Daniel Herbert Edwards, decedent's sole surviving heir, rendered his appointment as special administrator void. In the pleading filed by defendant, he asserted that his appointment as special administrator was made pursuant to the Wrongful Death Act (740 ILCS 180/2.1 (West 1996)) and was void because plaintiff failed to comply with the notice provisions of that act.
Plaintiff's response included affidavits from himself and a former employee explaining how the names came to be confused and their efforts to identify the proper person to whom notice should have been sent. Counsel's affidavit also stated that the misaddressed correspondence was not returned to him by the postal service. Further, counsel explained his belief that Edwards did receive notice because Edwards told an employee of State Farm Fire and Casualty Company (State Farm), his insurer, that he was upset by the notice.
Defendant's reply was accompanied by an affidavit from the State Farm employee, denying that she had such a conversation with Edwards or that she made such statements to counsel for plaintiff.
A hearing was held on March 30, 1998. The trial court found insufficient notice and held that the appointment of defendant as special administrator was, therefore, void. The cause was dismissed with prejudice and this appeal followed.
We first address the question of which statutory provision applies in the circumstances of this case. Defendant, in his pleading and in his brief, relies on section 2.1 of the Wrongful Death Act (740 ILCS 180/2.1 (West 1996)). This provision, however, applies when the only asset of the estate of a deceased person is a cause of action for wrongful death and no estate has been opened. The Wrongful Death Act does not apply in the present case in which the estate of the deceased is the defendant, rather than the plaintiff, in a personal injury lawsuit.
Plaintiff's reliance on section 2-1008 of the Act is similarly misplaced. Section 2-1008 of the Act applies when the defendant dies after the commencement of an action. 735 ILCS 5/2-1008(b) (West 1996). Plaintiff is correct, however, that other plaintiffs have successfully invoked section 2-1008 of the Act, even when the alleged tortfeasor died prior to being named in the lawsuit. See Gaddy v. Schulte, 278 Ill. App. 3d 488, 493-94, 663 N.E.2d 119, 122-23 (1996), appeal denied, 168 Ill. 2d 589, 671 N.E.2d 730 (1996). Gaddy, in turn, relied on the decision of this court in Lindsey v. Special Administrator of Estate of Phillips, 219 Ill. App. 3d 372, 377, 579 N.E.2d 445, 448 (1991), where we said:
"[T]he better practice would be to first proceed with the appointment of the special administrator. This appointment would then be followed with the filing of a complaint listing the special administrator as a party defendant."
Indeed, in Gaddy, the court noted that section 13-209(b) of the Act "deals with [the] situation where a potential defendant dies before a cause of action is filed." Gaddy, 278 Ill. App. 3d at 493, 663 ...