On Friday morning, the Illinois Supreme Court pointed out a trap for the unwary in an unexpected place – what happens if a complaint is filed, but unbeknownst to the plaintiff, the defendant had died several months earlier? In Relf v. Shatayeva, Justice Lloyd A. Karmeier, writing for a six-Justice majority, reversed the Appellate Court’s judgment and held that the action was barred by plaintiff’s failure to substitute the decedent’s personal representative before the expiration of the statutory period. Our detailed discussion of the underlying facts and lower court rulings is here. Our report on the oral argument is here.
In February 2010 – just before the expiration of the two-year statute of limitations – the plaintiff sued the defendant for injuries sustained in an automobile accident. One problem — the defendant had died twenty-two months earlier – an event which was published in the Chicago Tribune. Not surprisingly, the sheriff failed to effectuate service on the decedent. The plaintiff had a special process server appointed, who quickly informed the plaintiff that the defendant was no longer living.
The plaintiff took no immediate action in response to this news. Seven days later, the circuit court dismissed the action for lack of diligence in attempting to effectuate service. The plaintiff then waited five months before ultimately asking the trial court to take notice of the decedent’s death, reinstate the action, appoint a "special administrator" — the plaintiff’s counsel’s secretary — to defend the case, and grant plaintiff leave to file an amended complaint. In support of the motion, plaintiff alleged that she had not been aware of the defendant’s passing until informed of it by the special process server, and she was unaware of any personal representative having been appointed for the estate. In fact, the decedent’s son had been granted letters of office as administrator of the estate long before — only five months after decedent passed away. Nevertheless, the court granted each of plaintiff’s motions.
The special administrator moved to dismiss the action for failure to serve the complaint until the statute of limitations had run. The motion was denied, but after the plaintiff amended her complaint, defendant moved to dismiss the action as untimely. The defendant argued that although the action was filed just within the two year statute of limitations, it had been directed against the decedent, not his representative; that filing was void. As for the subsequent amendment naming the special administrator, the defendant argued that plaintiff had failed to comply with the requirements of Section 13-209 of the Code of Civil Procedure governing how to proceed against a deceased defendant.
Section 13-209 provides three options for such cases. If an estate had been opened and a personal representative appointed — subsection (a) of 13-209 — the plaintiff had six months after the decedent’s death to sue the personal representative. Then there was subsection (b) — if no petition had been filed for letters of office for a personal representative, the court could appoint a special representative after notice to the party’s heirs and legatees and without opening an estate. Finally, there was subsection (c) — if the plaintiff was unaware of the decedent’s passing, he or she could proceed against the personal representative so long as four conditions were satisfied: (1) the plaintiff substituted the personal representative with reasonable diligence; (2) the plaintiff served the personal representative with reasonable diligence; (3) if process is served more than six months after letters of office were issued, the estate’s liability is limited to any insurance coverage; and (4) plaintiff’s amended complaint was filed within 2 years of the end of the statute of limitations.
The circuit court granted defendant’s motion to dismiss. The Appellate Court reversed and remanded, holding that subsection (c), not (b), governed since plaintiff was unaware of the decedent’s death when the action was filed.
The Supreme Court majority reversed the judgment and reinstated the order of dismissal. The majority held that because the defendant had died by the time the initial complaint was filed, the plaintiff’s original complaint had not tolled the statute of limitations; thus, section 13-209 was implicated. Subsections (a) and (b) were out, since the plaintiff clearly wasn’t aware of the defendant’s death when the action was filed. So subsection (c) governed.
The majority pointed out that although why the plaintiff had been unaware of the defendant’s death was unclear, it didn’t matter; the mere fact that the plaintiff didn’t know was enough. So the only remaining question was whether plaintiff’s counsel’s secretary was his "personal representative." The majority held that she was not. The majority concluded that where petitions for letter of office have been filed, the resulting representative was consistently referred to in the statutes as either the "representative" or "personal representative" of the decedent. Plaintiff argued that "personal representatives" and "special representatives" were interchangeable, but the majority held that plaintiff’s theory was incompatible with section 13-209, which limited "special representatives" to individuals as to whom no petition for letters of office had been filed.
Therefore, under the plain language of the statute, plaintiff was obligated to substitute in the decedent’s personal representative immediately upon learning of his death. Since she did not, the action was barred. Plaintiff argued that the defendant had not been prejudiced by the appointment of a special administrator, but the majority pointed out that it was impossible to know that, since neither the representative, heirs or legatees had ever been informed of the litigation. The majority pointed out that there was one final problem with the defendant’s appointment: under Section 27-5 of the Probate Act, a special administrator could not be appointed based upon the recommendation of any person adverse to the special administrator. Since the special administrator had been appointed based upon the recommendation of the plaintiff’s counsel, she was by definition improperly appointed.
Chief Justice Thomas L. Kilbride dissented. The Chief Justice agreed with the majority that subsection (c) of section 13-209 was applicable. However, the Chief Justice argued that plaintiff had moved diligently to substitute a representative and to serve her. Plaintiff’s mistake in misnaming the appointed representative a "special representative" rather than a "personal representative" shouldn’t be fatal to the action, the Chief Justice argued. Finally, the Chief Justice concluded that the decedent’s estate had not been prejudiced by the plaintiff’s conduct.
