dissenting:
I respectfully dissent.
Plaintiffs were injured in an automobile accident on April 14, 1992. The two-year personal injury statute of limitations was to expire April 14, 1994, but on March 21, 1994, plaintiffs filed their complaint against defendants Gene Somers and Marlyss Somers, misspelling their names. Unfortunately, Gene Somers had died September 26, 1992, and an administrator had been appointed for him on March 11, 1993 (replaced by a special administrator, Thomas Goodwin, on October 27, 1993). After defendants filed a motion to quash, on April 11,1994, plaintiffs filed a motion for appointment of a special administrator on April 22, 1994, and then a motion to add Goodwin as a party on May 26, 1994.
A similar fact situation existed in Vaughn, where plaintiffs’ complaint, filed a few days before the expiration of the statute of limitations, named Wilbur Speaker as a defendant. When summons was returned unserved, plaintiffs learned that Speaker was deceased and attempted to serve the executors of his estate. The court decided the case under section 2 — 616(d) of the Code. (Dl. Rev. Stat. 1987, ch. 110, par. 2 — 616(d).) The court refused to simply label a suit against a deceased person as a "nullity.” (Vaughn, 126 Ill. 2d at 157, 159-60, 533 N.E.2d at 888, 889.) The court did find, however, that there was no indication that a key requirement of section 2 — 616(d) of the Code had been met: that the substituted defendant received notice of the pending action prior to the lapse of the limitations period. Vaughn, 126 Ill. 2d at 160, 533 N.E.2d at 889.
In the present case the majority does not rely upon lack of notice, but upon the requirement of section 2 — 616(d) of the Code that the "failure to join the person as a defendant was inadvertent.” (735 ILCS 5/2 — 616(d) (West 1992).) The majority finds that the failure to name the estate in this case was something more than inadvertence (gross inadvertence?), because plaintiffs "knew,” before their complaint was filed, that Gene Somers was deceased. I recognize we should not encourage slipshod work on the part of attorneys, but punishment of plaintiffs’ carelessness in this case does not further the policy of section 2 — 616(d).
Complications may arise when defendants die before suit is filed, and the legislative policy is that plaintiffs in such cases should have additional time to bring their action. Even where plaintiffs have acted carelessly they may still have a right to bring their action. (See Vaughn, 126 Ill. 2d at 165-66, 533 N.E.2d at 892.) "Inadvertent” means "not turning the mind to a matter,” "INATTENTIVE,” "UNINTENTIONAL.” (Webster’s Ninth New Collegiate Dictionary 607 (1986).) A plaintiff should not be allowed to intentionally name the wrong party in an attempt to extend the time for filing or to gain some other advantage, but there is no indication of such intentional misconduct in this case.
The majority suggests that allowing the estate to be added as a defendant would "theoretically, place no time limit on bringing a suit, because a plaintiff could at any time after the statute of limitations had run seek to add a defendant.” (278 Ill. App. 3d at 99.) In all these cases, however, a lawsuit is filed and service is commenced within the two-year period of the statute of limitations. These cases always come to a head when a motion to dismiss or quash is filed a few days after the running of the statute. If the statute could just be extended a few weeks, there would be no problem. In the absence of any intentional misconduct, it is the legislative policy that the statute be extended. The majority’s approach rewards litigants who do not mention the death of a defendant until it is too late for plaintiff to do anything about it.
There is an implication in Vaughn that the supreme court did not consider the result appropriate and that the legislature should consider changes in the rule. (See Vaughn, 126 Ill. 2d at 161, 533 N.E.2d at 890 ("Nor may we formulate such a rule under our inherent and statutory authority to formulate rules of procedure” (emphasis added)).) The legislature apparently acted on that suggestion and added a new subsection (c) to section 13 — 209 of the Code. 735 ILCS 5/13 — 209(c) (West 1992) (added by Pub. Act 86 — 793, eff. January 1, 1990) (1989 Ill. Laws 4195).
Under section 13 — 209(c) of the Code, when a party commences an action against a deceased person whose death is unknown, the action may be refiled against the deceased person’s personal representative so long as the amended complaint is filed within two years of the expiration of the original statute of limitations. If the amended complaint is filed more than six months after the issuance of letters, the estate is liable only to the extent it is protected by liability insuranee. (735 ILCS 5/13 — 209(c) (West 1992).) It is true that section 13— 209(c) uses the words "whose death is unknown to the party” (735 ILCS 5/13 — 209(c) (West 1992)), but in my view those words are only descriptive of the situation where section 13 — 209(c) is meant to apply and are not intended to impose a rigorous substantive condition. Section 13 — 209(c) lists four "terms and conditions” which must be met. A party’s lack of knowledge of the death is not one of those terms and conditions, although it is required that after learning of the death the party proceeds with reasonable diligence to seek leave to file an amended complaint. That was done here. The majority suggests that plaintiffs "knew” of decedent’s death before the statute ran. (278 Ill. App. 3d at 95.) Actually, the most that can be said is that plaintiffs should have known of decedent’s death. The undisputed evidence is that plaintiffs read the obituary, and communicated with their attorney, but when the attorney checked out the information he (mistakenly) determined it was not accurate. A person who is told something, but does not believe it, cannot be said to "know” it.
The majority opinion notes that plaintiffs "were aware of decedent’s death 18 months prior to the running of the statute of limitations.” (278 Ill. App. 3d at 95.) This was not a situation, however, which was made worse by the passage of time. The critical point was when plaintiffs learned of Somers’ death and the attorney determined the information was not accurate. Once that occurred, it made no difference whether 18 days passed or 18 months.
Hardimon involved a complaint which recited that plaintiff had been duly appointed a special administrator, although no such appointment had then been made and none was made prior to the running of the statute of limitations. What the court said in that case is equally applicable here. Section 2 — 616(b) was adopted " 'to implement the legislative intent to preserve causes of action including those sounding in wrongful death against loss by reason of technical rules of pleading.’ ” Hardimon, 272 Ill. App. 3d at 120-21, 650 N.E.2d at 283, quoting Redmond, 65 Ill. App. 3d at 675, 382 N.E.2d at 100.
In Vaughn, there was no service on any defendant before the statute of limitations had run. In the present case, Marlyss Somers was a defendant in addition to Gene Somers, and there was service on Marlyss. Marlyss apparently also accepted the complaint which was to be served on Gene. Marlyss Somers apparently notified the insurance company which insured Gene and herself, and the attorney who represented Marlyss also represents the estate of Gene Somers. Special administrator Goodwin, in his deposition, admitted having knowledge of this suit prior to the April 14, 1994, running of the statute of limitations. In any event, notice to the substituted defendant is not a requirement under section 13 — 209(c) of the Code.
Under both sections 2 — 616(d) and 13 — 209(c) of the Code, I would reverse the judgment of the trial court and remand so that the estate of Gene Somers could be added as a defendant.