dissenting:
The issue presented to us in this appeal is whether the filing of the complaint within the six-month period satisfied the notice requirement of section 41 of the Metropolitan Transit Authority Act (70 ILCS 3605/41 (West 1996)). The majority answers no. I dissent.
In my view, the majority’s holding in the instant case does not comply with the Illinois Supreme Court decisions in Saragusa v. City of Chicago, 63 Ill. 2d 288, 348 N.E.2d 176 (1976), and Dunbar v. Reiser, 64 Ill. 2d 230, 356 N.E.2d 89 (1976). Although Saragusa and Dunbar were decided under section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1971, ch. 85, par. 8 — 102), significantly, the trial court judge’s dismissal of Joseph’s complaint in the instant case against the Chicago Transit Authority (CTA) was predicated on the holding in Lane v. Chicago Housing Authority, 147 Ill. App. 3d 876, 498 N.E.2d 604 (1986). And Lane was decided under section 8 — 102 of the Tort Immunity Act.
An analysis of Saragusa indicates that the controlling factor in the case was the filing of the complaint within the six-month notice period. In Saragusa, the plaintiff’s accident took place on April 20, 1970. On June 23, 1970, the plaintiffs attorney served upon the city clerk of Chicago a written notice of claim. Then, on September 21, 1970, five months after the injury, plaintiff filed her complaint. The complaint was thus filed within six months of the injury. Saragusa, 63 Ill. 2d at 290, 348 N.E.2d at 178.
The defendant in Saragusa filed its answer to the complaint on October 15, 1970, and on the same date propounded interrogatories to the plaintiff. Plaintiff filed her answers to the interrogatories on December 22, 1970, and these answers to interrogatories included information about plaintiffs hospitalization and the names of physicians by whom plaintiff had been treated. Saragusa, 63 Ill. 2d at 291.
Notably, in Saragusa, our Illinois Supreme Court wrote:
“We are inclined to believe that if any effect is to be given the 1969 amendment to section 8 — 102, the plaintiffs notice cannot be deemed to comply with that section. We hold, however, that the claimed deficiency in the notice did not warrant the dismissal of the plaintiffs complaint since the complaint itself was also filed within six months of the injury for which recovery was sought.
The notice requirement of section 8 — 102 is to be read together with the limitations provision of section 8 — 101, which, at the time of the plaintiffs accident, required that suit be filed within one year (Ill. Rev. Stat. 1971, ch. 85, par. 8 — 101), as opposed to the two-year period of limitations which is generally applicable to actions for personal injuries (Ill. Rev. Stat. 1971, ch. 83, par. 15).
A common purpose of these two provisions, whose antecedents were first enacted in 1905 (Laws of 1905, at 111, secs. 1, 2), is to encourage early investigation into the claim asserted against the local government at a time when the matter is still fresh, witnesses are available, and conditions have not materially changed. [Citations.]” Saragusa, 63 Ill. 2d at 292-93, 348 N.E.2d at 179-80.
Saragusa is instructive. In Saragusa, the notice was inadequate. However, the Illinois court held, “the notice did not warrant the dismissal of the plaintiffs complaint since the complaint itself was also filed within six months of the injury for which recovery was sought.” (Emphasis added.) Saragusa, 63 Ill. 2d at 293, 348 N.E.2d at 179; see also Oliver v. City of Chicago, 137 Ill. App. 3d 958, 960, 485 N.E.2d 428, 430 (1985).
In the instant case, the majority writes: “[T]he filing of a complaint can cure the failure to serve any notice only if the complaint is served upon the defendant before expiration of the statutory notice period. Williams, 206 Ill. App. 3d at 768, 565 N.E.2d at 84; Lane, 147 Ill. App. 3d at 880, 498 N.E.2d at 606. Cf. Rio, 104 Ill. 2d at 367-68, 472 N.E.2d at 426 (where supreme court noted that service occurred well within four months of injury); Dunbar, 64 Ill. 2d at 232, 356 N.E.2d at 89 (where supreme court alleged in its facts that complaint was filed and served less than one month after injury occurred).” 306 Ill. App. 3d at 933.
In my view, however, the cited cases afford an insufficient predicate for the majority holding in the instant case. Although the cited cases discuss the necessity to afford the public entity opportunity to obtain timely discovery, none of the cited cases uphold the dismissal of a complaint filed within a six-month notice period.
In Lane, the case relied upon by both the trial court and the majority in the instant appeal, the plaintiff, Lane, claimed that he was injured on April 11, 1984, and filed his complaint on April 8, 1985. The summons and complaint were not served on defendant, Chicago Housing Authority, until April 12, 1985, more than one year after plaintiffs injury.
The majority contends that to hold that the six-month notice period is satisfied by the filing of a complaint within six months without service within six months of the statutory notice period would defeat the legislative intent to insure the CTA’s ability to make prompt investigation. 306 Ill. App. 3d at 936. The majority cites McCormack v. Leons, 261 Ill. App. 3d 293, 296-97, 634 N.E.2d 1, 3-4 (1994) (reasonable diligence found with respect to service after 16 months). However, significantly, the majority cites no cases that name the Chicago Transit Authority as a defendant where service has been unduly delayed. This, because the CTA is easily located. In my view, the opportunity for timely service of notice and investigation is insured when a complaint is filed against the CTA within the six-month statutory notice period. This is because, when a lawsuit is filed within six months of the injury, both parties can be protected through existing civil litigation and discovery rules. See Saragusa, 63 Ill. 2d 288, 348 N.E.2d 176; see also Dunbar, 64 Ill. 2d at 237, 356 N.E.2d at 92 (where the Illinois Supreme Court wrote: “[W]e hold that the filing of the complaint within the six-month period satisfied the notice requirement of section 8 — 102 of the Tort Immunity Act”).
Accordingly, I dissent.