Dewey v. Zack

• Court: Appellate Court of Illinois
• Writing for the Court: DOYLE
• Citation: Dewey v. Zack, 651 N.E.2d 643, 272 Ill.App.3d 742, 209 Ill.Dec. 465 (Ill. App. 1995)
• Decision Date: 31 May 1995
• Docket Number: No. 2-94-0598,2-94-0598
• Parties: , 209 Ill.Dec. 465 Yvonne DEWEY, Indiv. and as Mother and Next Friend of Jonathan Dewey, and Lindon Dewey, Plaintiffs-Appellants, v. Russell ZACK, Nancy S. Williams, H. Nutgrass, and Rochelle Community Hospital, Defendants-Appellees.

Page 643

651 N.E.2d 643

272 Ill.App.3d 742, 209 Ill.Dec. 465

Yvonne DEWEY, Indiv. and as Mother and Next Friend of Jonathan Dewey, and Lindon Dewey, Plaintiffs-Appellants, v. Russell ZACK, Nancy S. Williams, H. Nutgrass, and Rochelle Community Hospital, Defendants-Appellees.

No. 2-94-0598.

Appellate Court of Illinois Second District.

May 31, 1995.

Kenneth C. Chessick, John W. Fisk, Cary S. Chessick, Patricia E. Raymond, Law Office of Kenneth C. Chessick, M.D., S.C., Schaumburg, for Lindon Dewey, Yvonne Dewey.

David P. Faulkner, Rockford, Hugh C. Griffin, Diane I. Jennings, Lord, Bissell & Brook, Chicago, for Russell Zack.

Gregory P. Guth, Eugene G. Doherty, Holmstrom & Kennedy, P.C., Rockford, for Haskell Nutgrass, Rochelle Community Hosp.

Kenneth W. Traum, Erik K. Jacobs, Kostantacos, Traum, Reuterfors & McWilliams, P.C., Rockford, for Nancy S. Williams.

Justice DOYLE delivered the opinion of the court:

Plaintiffs, Yvonne and Lindon Dewey, appeal from the dismissal of the four counts of their complaint premised on section 15 of the Rights of Married Women Act (Family Expense Act) (Ill.Rev.Stat.1987, ch. 40, par. 1015 (now codified, as amended, at 750 ILCS 65/15 (West 1992))). The circuit court of Ogle County found that the Family Expense Act counts were untimely and granted motions for judgment on the pleadings of defendants, Russell Zack, Nancy S. Williams, H. Nutgrass, and Rochelle Community Hospital. On appeal, plaintiffs contend that the trial court erred and that the Family Expense Act counts were timely filed.

Plaintiffs filed an eight-count complaint. The four Family Expense Act counts (one against each defendant) sought to recover medical and other expenses allegedly incurred by plaintiffs as a result of injuries to their minor son, Jonathan Dewey. In the other four counts (medical negligence counts) of the complaint, plaintiff Yvonne Dewey (plaintiff), as mother and next friend of Jonathan, alleged one count of medical negligence against each defendant. The medical negligence allegedly occurred on September 19 to 20, 1987, during the events surrounding Jonathan's birth. The medical negligence counts alleged that plaintiff did not discover Jonathan's injuries until 1992 when plaintiff was first informed that Jonathan had hypotonic cerebral palsy as a result of perinatal asphyxia. Plaintiffs filed their complaint on June 1, 1993. The parties agree that the medical negligence counts were timely filed because of extended limitations periods applicable to minors in their direct actions for medical negligence.

Two defendants raised the timeliness of the Family Expense Act counts as an affirmative defense. Plaintiffs answered by denying the defense and subsequently moved to strike the defense. Defendants responded by moving for judgment on the pleadings.

After a hearing on the matter, the trial court entered an order denying plaintiffs' motion to strike the affirmative defense and granting defendants' motions for judgment on the pleadings. The appeal record does not contain a transcript of the hearing.

Plaintiffs filed a motion for reconsideration, and the parties submitted memoranda in support of their positions. On April 25, 1994, the trial court conducted a hearing on plaintiffs' motion for reconsideration. At the hearing, plaintiffs argued that under the plain language of section 13-203 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1987, ch. 110, par. 13-203 (now codified, as amended [209 Ill.Dec. 467] at 735 ILCS 5/13-203 (West Supp.1993))), as construed by Beck v. Yatvin (1992), 235 Ill.App.3d 1085, 177 Ill.Dec. 488, 603 N.E.2d 558, Family Expense Act claims are tolled when the underlying claim of a minor is tolled. Plaintiffs asserted that their Family Expense Act counts were tolled and timely filed because the underlying medical negligence counts in this case were tolled and timely filed due to Jonathan's minority.

The trial court determined that its prior ruling was correct and entered an order denying plaintiffs' motion for reconsideration. The order contained language permitting an immediate appeal pursuant to Supreme Court Rule 304(a) (Official Reports Advance Sheet No. 26 (December 22, 1993), R. 304(a), eff. February 1, 1994).

On appeal, plaintiffs contend that the trial court erred when it granted defendants' motions for judgment on the pleadings and dismissed the Family Expense Act claims on the basis of timeliness. Plaintiffs maintain that section 13-203, as amended, effective November 23, 1987 (1987 amendment), applied to their Family Expense Act claims. Plaintiffs assert that under the 1987 amendment to section 13-203 the extended limitations periods applicable to Jonathan on his direct medical negligence claims also applied to plaintiffs' Family Expense Act claims.

Plaintiffs argue that under the 1987 amendment to section 13-203 the extended limitations periods gave them two years after discovering Jonathan's injuries to file their Family Expense Act claims as long as they filed the claims within eight years after the date of Jonathan's injuries. Plaintiffs maintain that they timely filed their Family Expense Act claims because they filed them less than two years after discovering Jonathan's injuries and less than eight years after the occurrence of the injuries.

Defendants respond that the version of section 13-203 in effect when Jonathan's injuries allegedly occurred in September 1987 (unamended version) governed plaintiffs' Family Expense Act claims. Defendants contend that under the unamended version of section 13-203 extended limitations periods applicable to underlying claims, such as Jonathan's medical negligence claims, did not apply to Family Expense Act claims. Defendants argue that if the extended limitations periods of the underlying claims are appropriately not applied to plaintiffs' Family Expense Act claims, then the Family Expense Act claims were untimely because the applicable period of repose was only four years and plaintiffs filed their Family Expense Act claims more than four years after Jonathan's alleged injuries.

Alternatively, defendants contend that even if the 1987 amendment to section 13-203 governed at the time plaintiffs made their Family Expense Act claims, the claims were still untimely. Defendants assert that after its 1987 amendment section 13-203 no longer applied to Family Expense Act claims, and the period of repose remained four years, so that plaintiffs' claims were still untimely even under the 1987 amendment to section 13-203.

The legislature amended section 13-203 effective November 23, 1987, approximately two months after Jonathan's injuries allegedly occurred. After the 1987 amendment, section 13-203 provided as follows:

"Loss of consortium--Injury to person. Actions for damages for loss of consortium or other actions deriving from injury to the person of another, except damages resulting from first degree murder or the commission of a Class X felony, shall be commenced within the same period of time as actions for damages for injury to such other person. Where the time in which the cause of action of the injured person whose injuries give rise to the cause of action brought under this Section is tolled or otherwise extended by any other Section of this Act, including Sections 13-211, 13-212 and 13-215, the time in which the cause of action must be brought under this Section is also tolled or extended to coincide with the period of time in which the injured person must commence his or her cause of action." Ill.Rev.Stat.1987, ch. 110, par. 13-203 (now codified, as amended, at 735 ILCS 5/13-203 (West Supp.1993)).

The 1987 amendment added the second sentence to section 13-203. (Pub.Act 85-907, eff. November 23, 1987 (1987 Illinois Laws 3831-32).) Prior to the 1987 amendment, and at the time Jonathan's injuries allegedly occurred, section 13-203 consisted of the first sentence only. The 1987 amendment did not change the first sentence in any way. Pub.Act 85-907, eff. November 23, 1987 (1987 Illinois Laws 3831).

The Family Expense Act (Ill.Rev.Stat.1987, ch. 40, par. 1015 (now 750 ILCS 65/15 (West 1992))) requires parents to pay for certain expenses of their minor children, including medical expenses. (In re Estate of Hammond (1986), 141 Ill.App.3d 963, 965, 96 Ill.Dec. 270, 491 N.E.2d 84.) Consequently, a cause of action to recover for the expenses of minors governed by the Family Expense Act, including medical expenses, lies in the parents, not in the child. Hammond, 141 Ill.App.3d at 965, 96 Ill.Dec. 270, 491 N.E.2d 84.

Prior to the 1987 amendment to section 13-203, the appellate court repeatedly determined that section 13-203 governed the limitations periods for Family Expense Act claims because they were derivative claims. (See, e.g., Janetis v. Christensen (1990), 200 Ill.App.3d 581, 588, 146 Ill.Dec. 341, 558 N.E.2d 304; Severe v. Miller (1983), 120 Ill.App.3d 550, 554-55, 76 Ill.Dec. 34, 458 N.E.2d 173.) This was because the right of action to recover medical expenses, and other expenses governed by the Family Expense Act, arose out of the injury to another, a minor. (Beck v. Yatvin (1992), 235 Ill.App.3d 1085, 1087, 177 Ill.Dec. 488, 603 N.E.2d 558.) However, the appellate court also consistently held that under the unamended version of section 13-203 extended limitations periods applicable to minors in their direct actions did not apply to the Family Expense Act claims of parents. See, e.g., Beck v. Yatvin (1992), 235 Ill.App.3d 1085, 1087, 177 Ill.Dec. 488, 603 N.E.2d 558; Janetis v. Christensen, 200 Ill.App.3d at 589, 146 Ill.Dec. 341, 558 N.E.2d 304; Reimers v. Honda Motor Co. Inc. (1986), 150 Ill.App.3d 840, 842, 104 Ill.Dec. 165, 502 N.E.2d 428; Swider v. Holy Cross Hospital (1986), 146 Ill.App.3d 740, 742, 100 Ill.Dec. 496, 497 N.E.2d 474; Northern Trust Co. v. Louis A. Weiss Memorial Hospital (1986), 143 Ill.App.3d 479, 493, 97 Ill.Dec. 524, 493 N.E.2d 6; Severe v. Miller, 120 Ill.App.3d...