No. 2--96--0889
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
MARY M. JABLONSKI and RICHARD ) Appeal from the Circuit Court
JABLONSKI, ) of Lake County.
)
Plaintiffs-Appellants, )
) No. 95--L--1421
v. )
)
JAMES E. ROTHE, ) Honorable
) Jack Hoogasian,
Defendant-Appellee. ) Judge, Presiding.
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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 (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 (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 (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 (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
decedent's estate and filed an amended complaint in that capacity.
The court stated:
"Although plaintiff's representative capacity was defective in
the initial complaint, her subsequent curing of that defect by
appointment as administrator in probate and the filing of an
amended complaint did not alter the facts forming the basis of
the claims for which defendants had notice and against which
they are required to defend." Hardimon, 272 Ill. App. 3d at
122.
The court noted that the amendment regarding plaintiff's
representative capacity was no different from any other amendment
growing out of the same transaction or occurrence as that set up in
the original pleading. Hardimon, 272 Ill. App. 3d at 122-23; see
also Marcus v. Art Nissen & Son, Inc., 224 Ill. App. 3d 464, 467-68
(1991); Lopez v. Oyarzabal, 180 Ill. App. 3d 132, 136 (1989).
Defendant contends that section 2--616(b) does not apply to
this case because the two-year period in which to bring suit under
the Act is a condition precedent to recovery rather than a mere
statute of limitations. The plain language of section 2--616(b)
refutes this contention. Section 2--616(b) provides that an
amended pleading relates back even where the original pleading was
defective in failing to allege the existence of a condition
precedent to recovery. 735 ILCS 5/2--616(b) (West 1994).
In Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222
(1938), defendant contended that an amended complaint alleging a
change in the theory of recovery was in effect a new cause of
action, filed beyond the then one-year statute of limitations.
Acknowledging that the one-year provision was a condition precedent
to recovery, the court nevertheless allowed the amended pleading.
The court held that the only requirement under section 46, the
predecessor to section 2--616(b), was that the cause of action in
the amendment grew out of the same transaction or occurrence
alleged in the original pleading. Metropolitan Trust, 369 Ill. at
229; see also Pavlov v. Konwall, 113 Ill. App. 3d 576, 580 (1983)
(amendment under section 46 could relate back to cure a defective
pleading which failed to set forth a condition precedent under the
Act).
The case on which defendant relies is readily distinguishable.
In Scott v. Skokie Valley Community Hospital, 54 Ill. App. 3d 766
(1977), the appellate court held that the probate court had erred
in entering a nunc pro tunc order naming plaintiff as the
administrator of the decedent's estate. As a result, it affirmed
the dismissal of the amended complaint as untimely. Inexplicably,
the court did not consider the effect of the relation-back statute.
Thus, we consider Scott to be of limited precedential value in this
case.
Defendant further contends that cases such as Redmond are
distinguishable because in those cases a probate estate already
existed at the time the statute of limitations expired. Therefore,
the appointments of plaintiffs as administrators could relate back
to the opening of the estates.
We consider this a distinction without a difference. Section
2--616 clearly provides that a complaint may be amended to cure the
omission of a condition precedent to the right to recover. The
statute does not specify a time in which this must be done. To
hold otherwise would be inconsistent with the section's purpose to
save causes of action from being lost on technical grounds.
We note that it is not entirely clear from Redmond that an
estate had been opened prior to the expiration of the statute of
limitations. Moreover, this argument fails to account for
Hardimon, where plaintiff clearly did not seek appointment as
administrator until after the running of the statute of
limitations. See Hardimon, 272 Ill. App. 3d at 119.
Defendant does not dispute that plaintiffs' original complaint
was timely filed, or that the cause of action alleged in the
amended complaint arose out of the same occurrence as that in the
original pleading. Defendant does not claim that it has been
prejudiced by the amendment. Under these circumstances, the court
erred in dismissing the amended complaint as untimely. The amended
complaint relates back to the filing of the timely filed original
complaint.
The judgment of the circuit court of Lake County is reversed,
and the cause is remanded for further proceedings.
Reversed and remanded.
INGLIS and HUTCHINSON, JJ., concur.