735 ILCS 13-217 and Timeliness of a Claim
Mabry was struck and injured in a car accident caused by Boler. Farmers Insurance (Farmers), as subrogee pursuant to Mabry’s automobile policy, sued Boler for negligence in July 2008. Farmers voluntarily dismissed the case in August 2010 and filed another negligence suit on September 10, 2010. The trial court granted Boler’s motion to dismiss because the new suit alleged a different cause of action for personal injury claims (as opposed to property damage in the 2008 suit), and therefore it would not relate back to the original complaint and was filed after the statute of limitations had run. Farmers appealed.
On appeal, Farmers argued that the relation back doctrine of 735 ILCS 5/2-616(b) was not the appropriate vehicle to analyze the timeliness of the claims and that 735 ILCS 13-217 should have been used. Boler countered that Farmers forfeited the argument by not bringing up in its response to the motion to dismiss or motion for reconsideration; and even if it was not forfeited, 735 ILCS 13-217 did not apply because the lawsuits did not arise from the same core of operative facts. The court held that the issue was not forfeited by Farmers because they asserted that it had refiled the complaint within one year, which was an assertion sufficient enough to reference the one-year statutory refiling period of Section 13-217. The court also held that Section 13-217 should have been used to analyze the timeliness of the claim because it addresses the refiling of voluntary dismissals, where Section 5/2-616(b) is only concerned with amendments to pleadings. Therefore, the circuit court erroneously dismissed Farmers’ 2010 complaint because the claims arises out of the same accident, and Section 13-217 should have been used.
Mabry v Boler, 2012 WL 1753011, —N.E.2d —- (Ill.App. 1 Dist., 2012), No. 1-11-1464.
