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Alice Mabry and Floyd Mabry, By Illinois Farmers Insurance, As Subrogee v. Jean Boler

May 15, 2012

ALICE MABRY AND FLOYD MABRY, BY ILLINOIS FARMERS INSURANCE, AS SUBROGEE,
PLAINTIFFS-APPELLANTS,
v.
JEAN BOLER,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 10 M1 302307 Honorable Laurence J. Dunford, Judge Presiding.

The opinion of the court was delivered by: Justice Cunningham

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.

Presiding Justice Quinn and Justice Connors concurred in the judgment and opinion.

OPINION

¶1 On March 17, 2011, the circuit court of Cook County entered an order dismissing with prejudice a negligence complaint filed by the plaintiff, Illinois Farmers Insurance (Farmers Insurance), against the defendant, Jean Boler. On May 9, 2011, the circuit court denied Farmers Insurance's motion for reconsideration of its March 17, 2011 ruling. On appeal, Farmers Insurance argues that: (1) the circuit court erred in dismissing with prejudice the negligence complaint because it was a timely refiled cause of action under section 13-217 of the Code of Civil Procedure (735 ILCS 5/13-217 (West 1994)); and (2) alternatively, dismissal of the cause of action was unwarranted under the relation-back doctrine pursuant to section 2-616(b) of the Code of Civil Procedure (735 ILCS 5/2-616(b) (West 2010)). For the following reasons, we reverse the judgment of the circuit court of Cook County and remand the matter for further proceedings.

¶2 BACKGROUND

¶3 On August 13, 2006, pedestrian Alice Mabry (Alice) was allegedly struck and injured by an automobile driven by Jean Boler (Jean). At the time of the accident, Alice was insured by Farmers Insurance. In July 2008,*fn1 Farmers Insurance, as subrogee pursuant to the insurance policy, initiated a negligence lawsuit against Jean (the 2008 complaint), alleging that, on August 13, 2006, "at or about 100th," Jean negligently and carelessly drove her automobile into Alice's automobile, that her acts and omissions proximately caused Alice's damages, and that Alice "suffered severe damages to [her] [automobile], losing much of the value of the same, and [her] damages include the total value of the [automobile] and/or repairs to same and rental charges, tow charges, and appurtenant charges and medical payment [sic] coverage payments." The 2008 complaint requested that a judgment in the amount of $6,850 plus costs be entered in Farmers Insurance's favor.*fn2

¶4 On August 25, 2010,*fn3 Farmers Insurance voluntarily dismissed the 2008 cause of action without prejudice.

¶5 On September 10, 2010,*fn4 Farmers Insurance filed another negligence complaint against Jean, alleging that on August 13, 2006, Alice was a pedestrian near "74 E. 100th Place" in Chicago, Illinois, when Jean's automobile struck Alice (the 2010 complaint).*fn5 The 2010 complaint asserted that Jean's negligent and careless actions directly and proximately caused Alice's physical injuries, including "severe shock to her nervous system and bruises, contusions, strains, sprains and lacerations to diverse parts of [her] body" and permanent disability. The 2010 complaint further alleged that Alice's husband, Floyd Mabry (Floyd), was deprived of Alice's companionship, and that both Alice and Floyd had become liable for large sums of money as a result of Alice's medical care. The 2010 complaint also stated that, pursuant to Alice and Floyd's insurance policy with Farmers Insurance, Farmers Insurance had paid $2,000 for Alice's medical payments and $6,850 in "medical payments and compensation for pain and suffering, loss of a normal life and [Alice's injuries]," and requested that a judgment be entered in its favor in the amount of $8,850 plus costs.

¶6 On January 11, 2011, Jean filed a section 2-619 motion to dismiss (735 ILCS 5/2-619(a)(5) (West 2010)), arguing that the 2010 complaint should be dismissed with prejudice because it was filed after the two-year statute of limitations period for personal injury claims had expired.

¶7 On February 18, 2011, Farmers Insurance filed a response to Jean's motion to dismiss, arguing that both the 2008 and 2010 complaints included a prayer for relief for "medical payments," that the 2008 lawsuit was voluntarily dismissed without prejudice, and that the 2010 complaint was refiled within the allowable statutory time period.

¶8 On March 1, 2011, Jean filed a reply in support of the motion to dismiss, arguing that the 2010 complaint was not simply a refiling of the 2008 cause of action, but that it "contains factual allegations and claims for relief that were not [pled] in the original action." Specifically, Jean pointed out that the 2010 complaint sought "additional relief in the form of pain and suffering, loss of a normal life, and other relief for bodily injury" which had not been previously pled in the 2008 complaint. Thus, she argued, portions of the 2010 complaint that were not previously pled in the 2008 complaint should be dismissed.

¶9 On March 17, 2011, the circuit court granted the motion to dismiss, finding that the 2010 complaint alleging personal injury claims was a different cause of action from the 2008 complaint alleging property damage. The circuit court further found that "since there was no claim for personal injury in the [2008 complaint], the [2010 complaint] [did] not relate back to the [2008 complaint]" under section 2-616(b) of the Code of Civil Procedure (735 ILCS 5/2-616(b) (West 2010)). Thus, the circuit court dismissed the 2010 complaint with prejudice for failing to file it within the two-year statute of limitations period from the date of the accident.

ΒΆ10 On March 31, 2011, Farmers Insurance filed a motion for reconsideration of the circuit court's March 17, 2011 ruling. On May 9, 2011, the circuit court denied the motion for reconsideration. On May 23, 2011, ...


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