Deceased v. Inman

• Citation: 402 Ill.App.3d 766,342 Ill.Dec. 81,931 N.E.2d 1264
• Decision Date: 08 July 2010
• Docket Number: No. 5-08-0591.,5-08-0591.
• Parties: Neil NAGEL, as Administrator of the Estate of Brandon Neil Nagel, Deceased, Plaintiff-Appellant, v. John INMAN, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

402 Ill.App.3d 766

931 N.E.2d 1264

342 Ill.Dec. 81

Neil NAGEL, as Administrator of the Estate of Brandon Neil Nagel, Deceased, Plaintiff-Appellant,

v.John INMAN, Defendant-Appellee.

No. 5-08-0591.

Appellate Court of Illinois,Fifth District.

July 8, 2010.

Darrell Dunham, Tara Dahl, Darrell Dunham & Associates, Carbondale, IL, for Appellant.

Arthur W. Morris, Traughber & Morris, Ltd., Columbia, IL, for Appellee.

Justice CHAPMAN delivered the opinion of the court:

The plaintiff, Neil Nagel, filed a wrongful-death action alleging that the defendant's negligence caused the death of his son, Brandon Neil Nagel, in an automobile accident. Although the complaint listed the plaintiff in his capacity as the special administrator of Brandon's estate, he was not appointed to act in that capacity until six months after the suit was filed. The plaintiff subsequently filed a motion for a voluntary dismissal, which the court granted. He later filed the instant action raising the same allegations. The court granted the defendant's motion to dismiss, finding that (1) the plaintiff's authority to act as the special administrator for Brandon's estate terminated when the original suit was dismissed without prejudice and (2) the suit was time-barred. The plaintiff appeals, arguing that both of these findings were in error. At issue is whether the plaintiff was required to file an amended complaint after being appointed as the special administrator in the first suit. According to the defendant, the lack of an amended complaint rendered the plaintiff's original suit a nullity, which in turn made the savings provision of the Limitations Act (735 ILCS 5/13-217 (West 2006)) inapplicable. We reverse.

On September 29, 1999, the plaintiff's son, Brandon Neil Nagel, died as a result of an automobile accident with the defendant, John Inman. On November 10, 1999, the plaintiff filed a complaint under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1998)). He alleged negligence and willful and wanton conduct on the part of the defendant. The caption named the plaintiff in his capacity as the administrator of Brandon's estate; however, he had not yet been appointed to act in that capacity. On April 27, 2000, the plaintiff filed a motion to be appointed as the special administrator of Brandon's estate. On May 17, 2000, he filed an amended motion to be appointed. On May 19, 2000, the court entered an order appointing the plaintiff as the special administrator of the estate of Brandon Neil Nagel and on May 30, 2000, issued letters of office.

On May 5, 2006, the plaintiff filed a motion for a voluntary dismissal pursuant to section 2-1009 of the Code of Civil Procedure (735 ILCS 5/2-1009 (West 2006)). On August 2, 2006, the court entered an order dismissing the cause without prejudice, conditioned on the plaintiff's payment to the defendant of the defendant's costs in the amount of $1,153.79 (see 735 ILCS 5/2-1009(a) (West 2006)).

On July 25, 2007, the plaintiff filed the complaint that forms the basis of this appeal. The allegations and parties in the second complaint were identical to those in the original complaint. The caption once again named the plaintiff in his capacity as the administrator of the estate of Brandon Neil Nagel. He did not file a petition to be appointed as the administrator. According to the plaintiff, it was not necessary to do so because his appointment carried over after the first suit was voluntarily dismissed.

On March 26, 2008, the defendant filed a motion to dismiss the suit. He argued that the plaintiff's authority to act as the special administrator of Brandon's estate terminated when the first suit was voluntarily dismissed. Thus, he contended, the plaintiff lacked the capacity to bring a suit on behalf of the estate in the second suit. In addition, the defendant argued that the statute of limitations for bringing a suit under the Wrongful Death Act had run. See 740 ILCS 180/2 (West 2006) (providing a two-year statute of limitations for wrongful-death claims). In a memorandum supporting his motion to dismiss, he argued that the “proper plaintiff”-Neil Nagel as the administrator of Brandon Nagel's estate-was never made a party to the original suit because the plaintiff never filed either an amended complaint or a motion for the substitution of a party. He did not address the applicability of the savings provision (735 ILCS 5/13-217 (West 2006)).

On May 16, 2008, the plaintiff filed a petition to be appointed as the special administrator of Brandon's estate in this second suit. He states in his brief that he did so only out of “an abundance of caution.” The court never ruled on this motion. Instead, on July 7, 2008, the court entered an order granting the defendant's motion to dismiss. The court explained its rationale as follows:

“The Court has considered that Plaintiff has never been appointed a special administrator in the above[-]styled cause. Plaintiff's authority to act as administrator terminated when the Court entered an Order on August 2, 2006, dismissing [the original complaint without prejudice]. Proceeding on the complaint in this cause is barred by the statute of limitations when raised as a defense by defendant.”

On July 18, 2008, the plaintiff filed a motion to reconsider, which the court denied on October 30, 2008. This appeal followed.

The plaintiff first argues that the court erred in finding that his claim was time-barred. He argues that the savings provision of the Limitations Act clearly applies to make his complaint timely because the allegations of the two causes of action were identical. We agree.

An action brought under the Wrongful Death Act must be brought within two years of the decedent's death (740 ILCS 180/2 (West 2006)). However, under the savings provision of the Limitations Act, if a timely filed action is dismissed without prejudice pursuant to a motion for a voluntary dismissal, an identical action may be filed within one year of the order dismissing the original action or the remaining limitations period, whichever is later. 735 ILCS 5/13-217 (West 2006). This provision is applicable to wrongful-death claims. Winger v. Franciscan Medical Center, 299 Ill.App.3d 364, 368, 233 Ill.Dec. 748, 701 N.E.2d 813, 815-16 (1998) (citing Kristan v. Belmont Community Hospital, 51 Ill.App.3d 523, 525, 9 Ill.Dec. 557, 366 N.E.2d 1068, 1070 (1977)). There is no question that the plaintiff complied with these requirements. He filed his original complaint less than two months after Brandon's death, and he filed his second complaint within one year of the order dismissing his first suit. However, the defendant argues that the plaintiff failed to follow other procedural requirements in his first suit. He further argues that this failure rendered the first suit a nullity, thus making the savings provision inapplicable.

A wrongful-death action must be filed by a representative of the decedent on behalf of the estate. Pavlov v. Konwall, 113 Ill.App.3d 576, 577, 69 Ill.Dec. 547, 447 N.E.2d 982, 983 (1983); Redmond v. Central Community Hospital, 65 Ill.App.3d 669, 676, 21 Ill.Dec. 801, 382 N.E.2d 95, 100 (1978). Thus, there is no proper plaintiff if the next of kin of a decedent sues in his or her individual capacity. See Jablonski v. Rothe, 287 Ill.App.3d 752, 754, 223 Ill.Dec. 100, 678 N.E.2d 1108, 1109 (1997); Redmond, 65 Ill.App.3d at 677, 21 Ill.Dec. 801, 382 N.E.2d at 101. Similarly, there is no proper plaintiff where the person named in the caption as the administrator of the decedent's estate was not properly appointed (see Pavlov, 113 Ill.App.3d at 577, 69 Ill.Dec. 547, 447 N.E.2d at 983) or-as happened here-where the person named has not yet been appointed as the administrator (see Hardimon v. Carle Clinic Ass'n, 272 Ill.App.3d 117, 119, 208 Ill.Dec. 824, 650 N.E.2d 281, 282 (1995), abrogated on other grounds by Billerbeck v. Caterpillar Tractor Co., 292 Ill.App.3d 350, 226 Ill.Dec. 563, 685 N.E.2d 1018 (1997)).

Ideally, the administrator should be appointed first and the wrongful-death action filed subsequently. Lindsey v. Special Administrator of Estate of Phillips, 219 Ill.App.3d 372, 377, 161 Ill.Dec. 897, 579 N.E.2d 445, 448 (1991). However, a failure to follow this procedure is not necessarily fatal to a cause of action. Numerous cases have found that where an administrator is appointed after the suit is filed, the appointment will relate back to the time when the suit was filed. Jablonski, 287 Ill.App.3d at 755, 223 Ill.Dec. 100, 678 N.E.2d at 1110; see also, e.g., Hardimon, 272 Ill.App.3d at 122, 208 Ill.Dec. 824, 650 N.E.2d at 284; Pavlov, 113 Ill.App.3d at 579, 69 Ill.Dec. 547, 447 N.E.2d at 984.

The plaintiff argues that the instant case is precisely analogous to those cases. The defendant, however, contends that there is one key difference: in all of these cases, the administrator filed an amended complaint after being appointed as the administrator. See Jablonski, 287 Ill.App.3d at 754, 223 Ill.Dec. 100, 678 N.E.2d at 1109; Hardimon, 272 Ill.App.3d at 118, 208 Ill.Dec. 824, 650 N.E.2d at 282; Pavlov, 113 Ill.App.3d at 577, 69 Ill.Dec. 547, 447 N.E.2d at 983; Redmond, 65 Ill.App.3d at 677, 21 Ill.Dec. 801, 382 N.E.2d at 101. The defendant argues that this step was critical because there was no proper plaintiff when the original complaint was filed; thus, he contends, the original complaint was a nullity and an amended complaint was necessary.

In response, the plaintiff points out that the original complaint already named the plaintiff in his capacity as the administrator of Brandon's estate. To require him to file an amended complaint identical to his original complaint, he contends, would elevate form over substance. See Jablonski, 287 Ill.App.3d at 755, 223 Ill.Dec. 100, 678 N.E.2d at 1110 (explaining that one purpose of the doctrine of relation back is to “avoid elevating questions of form over questions of substance” in a way that precludes a...