After an automobile accident defendant died and plaintiff, unaware of this, was unable to obtain service in the timely action, the statutory twoyear extension of the limitation period if a decedent’s personal representative is substituted as defendant was not available where plaintiff used the unauthorized procedure of successfully asking the circuit court to appoint an employee of plaintiff’s attorney as “special administrator”—limitations dismissal upheld.
Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. James E. Snyder, Judge, presiding.
Ellen J. O'Rourke and Jean M. Bradley, of Bruce Farrel Dorn & Appeal Associates, of Chicago, for appellant.
David B. Nemeroff and Adam S. Goldfarb, of Chicago, for appellee.
Cynthia S. Kisser, of Lawrence H. Hyman & Associates, of Chicago, for amicus curiae Illinois Trial Lawyers Association.
Justices JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.
Chief Justice Kilbride dissented, with opinion.
¶ 1 Plaintiff, Sandra Relf, brought an action against Joseph Grand Pre, Jr., in the circuit court of Cook County to recover damages for personal injuries she sustained in a motor vehicle accident. At the time plaintiff filed her action, Mr. Grand Pre was deceased, his will had been admitted to probate, and letters of office had been issued to his son to serve as independent administrator of his estate. Claiming she was not aware of Mr. Grand Pre's death when she filed suit, and without notice to the estate, the independent administrator, or Grand Pre's heirs and legatees, plaintiff subsequently sought and was granted permission to have a secretary in her attorney's office appointed as "special administrator" to defend Mr. Grand Pre's estate against her claims.
¶ 2 Substitution of the "special administrator" did not occur until after the two-year limitations period for personal injury actions had expired. The "special administrator" therefore moved to dismiss plaintiff's cause of action as time-barred under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)). The circuit court found the "special administrator's" motion to be meritorious and dismissed, rejecting plaintiff's arguments that the action should be deemed timely under the provisions of section 13-209 of the Code of Civil Procedure (735 ILCS 5/13-209 (West 2010)) which govern the procedures to be followed where a person against whom a cause of action may be brought is deceased. The appellate court reversed and remanded to the circuit court for further proceedings. 2012 IL App (1st) 112071. We granted defendant leave to appeal (Ill. S.Ct. R. 315 (eff. May 1, 2013)) and allowed the Illinois Trial Lawyers Association to file a brief amicus curiae pursuant to Illinois Supreme Court Rule 345 (Ill. S.Ct. R. 345 (eff. Sept. 20, 2010)). For the reasons that follow, we now reverse the appellate court's judgment and affirm the judgment of the circuit court.
¶ 3 BACKGROUND
¶ 4 The motor vehicle accident which gave rise to this litigation occurred in February of 2008. In February of 2010, just as the two-year statute of limitations for personal injury actions (735 ILCS 5/13-202 (West 2010)) was about to expire, plaintiff filed this action against Mr. Grand Pre in the circuit court of Cook County to recover damages for the injuries she sustained in the accident.
¶ 5 Mr. Grand Pre was the sole defendant named in the complaint. At the time the complaint was filed, however, Mr. Grand Pre was actually deceased. He had passed away on April 25, 2008, shortly after the accident.
¶ 6 The record shows that a paid death notice giving the circumstances of Mr. Grand Pre's death was published in the Chicago Tribune on April 30, 2008. The record further shows that probate proceedings involving his estate were initiated in the circuit court of Cook County in August of 2008. Mr. Grand Pre's will was admitted to probate in September of 2008 and, at the same time, letters of office were issued to his son, Gary, to serve as independent administrator of Mr. Grand Pre's estate. These were all matters of public record.
¶ 7 The sheriff failed to effectuate service of process on Mr. Grand Pre, who, as we have just noted, was dead. Still not realizing that Mr. Grand Pre was deceased, plaintiff then sought and was granted leave to have a special process server appointed to attempt service on him. The special process server quickly discovered that Mr. Grand Pre was no longer living and conveyed that information to plaintiff on May 17, 2010. Plaintiff took no immediate corrective action in response to the special process server's news, and on May 24, 2010, the circuit court dismissed plaintiff's cause of action for lack of diligence in attempting to effectuate service. Because plaintiff's failure to exercise diligence occurred after the governing limitations period had expired, the dismissal was with prejudice. Ill. S.Ct. R. 103(b) (eff. July 1, 2007).
¶ 8 On September 24, 2010, plaintiff asked the circuit court to set aside its order dismissing the case for lack of diligence. In a separate motion filed the same day, plaintiff also asked the court to take notice of Mr. Grand Pre's death, to appoint a "special administrator" for the purposes of defending plaintiff's action against him, and to grant plaintiff leave to file an amended complaint.
¶ 9 In support of her request for a "special administrator, " plaintiff asserted that she had not learned of Mr. Grand Pre's death until receiving notice of it from the special process server and that she was unaware as to whether "any personal representative has been appointed by the Estate of [Mr. Grand Pre]." Plaintiff proposed that Natasha Shatayeva, an employee/legal assistant of her lawyer, be appointed to serve "as the Special Administrator of the Estate of [Mr. Grand Pre], deceased." Shatayeva was the attorney's secretary.
¶ 10 Following a hearing, the circuit court granted all of plaintiff's requests. It vacated the dismissal and reinstated the action, "spread [Mr. Grand Pre's] death of record, appointed Natasha Shatayeva "as the Special Administrator of the Estate of [Mr. Grand Pre], deceased, " and granted plaintiff leave to file an amended complaint, which plaintiff promptly did. The circuit court's order appointing Shatayeva as "special administrator" gave no statutory basis for that action and none was set forth in plaintiff's motion.
¶ 11 Once Shatayeva was designated by the court to represent Mr. Grand Pre's estate, she moved to dismiss plaintiff's cause of action pursuant to Supreme Court Rule 103(b) (Ill. S.Ct. R. 103(b) (eff. July 1, 2007)) on the grounds that plaintiff had "failed to take substantive efforts to serve Defendant with the lawsuit timely [sic]" and that she, Shatayeva, was not served "until on or about October 7, 2010, over seven months after the statute of limitation [had run]." That motion was denied by the court in February of 2011. Thereafter, plaintiff was allowed to file a second amended complaint correcting an error in her previous pleadings regarding Mr. Grand Pre's name.
¶ 12 Plaintiff's second amended complaint was filed in March of 2011. Shatayeva responded by filing a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)), on the grounds that plaintiff's cause of action was not commenced within the time limited by law. Although plaintiff's original complaint was filed in the circuit court just within the two-year limitation period for actions for damages for an injury to the person (735 ILCS 5/13-202 (West 2010)), that complaint, as we have discussed, was directed against Mr. Grand Pre himself even though he had already been dead for approximately a year and 10 months. Shatayeva argued that under Illinois law, a dead person is a nonexistent entity and cannot be a party to a lawsuit. Correspondingly, a lawsuit instituted against a person who is already dead at the time the suit is filed is a nullity and void ab initio. Shatayeva asserted that the complaint naming Mr. Grand Pre therefore could not operate to preserve plaintiff's claims arising from the February 2008 accident.
¶ 13 Shatayeva further argued that the General Assembly has provided litigants with a mechanism for bringing a cause of action where, as here, a person against whom an action may be brought dies before expiration of the time limit for commencement of that action, and the cause of action survives and is not otherwise barred. Shatayeva asserted, however, that plaintiff failed to follow the statutory requirements in this case.
¶ 14 Under section 13-209(b)(1) of the Code of Civil Procedure (735 ILCS 5/13-209(b)(1) (West 2010)), if an estate has been opened for the decedent and a personal representative has been appointed by the court, the "action may be commenced against his or her personal representative after the expiration of the time limited for the commencement of the action, and within 6 months after the person's death." If, on the other hand, "no petition has been filed for letters of office for the deceased's estate, " then under section 13-209(b)(2) of the Code of Civil Procedure (735 ILCS 5/13-209(b)(2) (West 2010)), "the court, upon the motion of a person entitled to bring an action and after the notice to the party's heirs or legatees as the court directs and without opening an estate, may appoint a special representative for the deceased party for the purposes of defending the action."
¶ 15 In this case, a petition for letters of office for Mr. Grand Pre's estate had been filed and a personal representative, Mr. Grand Pre's son, Gary, had been appointed by the circuit. As between the foregoing provisions, section 13-209(b)(1) rather than section 13-209(b)(2) was therefore the relevant provision. Under that statute, plaintiff could have preserved her claims arising from the collision involving Mr. Grand Pre, had she known of Grand Pre's death, by bringing the action against the personal representative appointed by the court in the probate proceeding and doing so within six months of Mr. Grand Pre's death. But plaintiff did neither of those things. Shatayeva therefore asserted that section 13-209(b)(1) could not be applied here.
¶ 16 Shatayeva further argued that the legislature has provided an additional safe harbor to aid plaintiffs where, as is claimed by plaintiff's counsel to be the situation here, the action is brought directly against the deceased person and the plaintiff does not learn that the defendant is actually dead until the limitations period has expired. In such circumstances, and assuming the cause of action survives and is not otherwise barred, section 13-209(c) of the Code of Civil Procedure (735 ILCS 5/13-209(c) (West 2010)) allows the plaintiff to proceed directly against the personal representative, notwithstanding the fact that the claims would otherwise be untimely. That option, however, is subject to four conditions. The plaintiff must proceed "with reasonable diligence to move the court for leave to file an amended complaint, substituting the personal representative as defendant." 735 ILCS 5/13-209(c)(1) (West 2010). The plaintiff must also proceed "with reasonable diligence to serve process upon the personal representative." 735 ILCS 5/13-209(c)(2) (West 2010). If process is served more than six months after issuance of letters of office to the personal representative, the "liability of the estate is limited as to recovery to the extent the estate is protected by liability insurance." 735 ILCS 5/13-209(c)(3) (West 2010). Finally, "[i]n no event can a party commence an action under this subsection (c) unless a personal representative is appointed and an amended complaint is filed within 2 years of the time limited for the commencement of the original action." 735 ILCS 5/13-209(c)(4) (West 2010).
¶ 17 Although a personal representative had been appointed in the matter before us in September of 2008, plaintiff never moved the court to have that personal representative substituted as a defendant and never attempted service on that personal representative. Instead, the plaintiff arranged to have one of her attorney's employees, his secretary, appointed "special administrator." Shatayeva asserted that where, as here, a personal representative has already been appointed in probate proceedings, appointment of a separate special representative for the deceased party is improper. Accordingly, Shatayeva asserted, the pleadings naming her as a party are impermissible and should be stricken and the case should be dismissed as time-barred.
¶ 18 The circuit court found Shatayeva's arguments to be meritorious and granted her motion to dismiss. The appellate court reversed and remanded. 2012 IL App (1st) 112071. It held that because plaintiff was unaware of Mr. Grand Pre's death at the time she filed her complaint, section 13-209(c) of the Code of Civil Procedure was the governing provision in this case and that section 13-209(b) was inapplicable. 2012 IL App (1st) 112071, ¶¶ 23-25. It further held that plaintiff's actions in securing the appointment of Shatayeva as "special administrator" when and how she did satisfied the requirements of section 13-209(c) (2012 IL App (1st) 112071, ¶ 26) and were ...