Ruklick v. Julius Schmid, Inc.

• Court: Appellate Court of Illinois
• Writing for the Court: STAMOS
• Citation: Ruklick v. Julius Schmid, Inc., 169 Ill.App.3d 1098, 523 N.E.2d 1208, 120 Ill.Dec. 297 (Ill. App. 1988)
• Decision Date: 10 May 1988
• Docket Number: No. 87-2370,87-2370
• Parties: , 120 Ill.Dec. 297, Prod.Liab.Rep. (CCH) P 11,834 Betsy RUKLICK and Joseph Ruklick, Plaintiffs-Appellants, v. JULIUS SCHMID, INC., a corporation; Schmid Products Company; Schmid Laboratories, Inc., a corporation; and David Cromer, M.D., Defendants- Appellees.

Page 1208

523 N.E.2d 1208

169 Ill.App.3d 1098, 120 Ill.Dec. 297,

Prod.Liab.Rep. (CCH) P 11,834

Betsy RUKLICK and Joseph Ruklick, Plaintiffs-Appellants, v. JULIUS SCHMID, INC., a corporation; Schmid Products Company; Schmid Laboratories, Inc., a corporation; and David Cromer, M.D. Defendants- Appellees.

No. 87-2370.

Appellate Court of Illinois First District, Second Division.

May 10, 1988.

Nathanson & Wray, Chicago (Philip J. Nathanson, Mary E. Doherty, of counsel), for plaintiffs-appellants.

Latham & Watkins, Chicago (William J. Gibbons, David D. Gregg, Carole Randolph, of counsel), Pretzel & Stouffer, Chtd., Chicago (David J. Loughane, Robert Marc Chemers and Michael G. Bruton, of counsel), for defendants-appellees.

Justice STAMOS ^* delivered the opinion of the court:

Plaintiffs Betsy Ruklick and Joseph Ruklick, her husband, appeal from orders dismissing with prejudice their personal-injury negligence and product-liability complaint, refusing to vacate the dismissal order, and denying them leave to file an amended complaint. Defendants Julius Schmid, Inc., Schmid Products Company, and Schmid Laboratories, Inc. (collectively the Schmid defendants), are the product-liability defendants, and defendant David Cromer, M.D., is the physician of whose alleged malpractice plaintiffs complain. The dismissed complaint had been refiled within one year after voluntary dismissal of plaintiffs' previous complaint, which itself had represented their fourth amendment of their original complaint. The dismissal with prejudice was entered after defendants raised a statute-of-limitations defense. The amended complaint that the circuit court then denied leave to file would have been plaintiffs' seventh attempt to plead their cause of action, though only the second through their present counsel.

The issues are:

(a) Whether exercise, within one year after an unappealed voluntary dismissal, of plaintiffs' right to refile should have operated to prevent defendants from pleading the statute of limitations as to the refiled complaint.

(b) If not, whether plaintiffs' complaint as refiled was barred by the terms of the statute of limitations.

(c) If so, whether the trial court abused its discretion in denying plaintiffs leave to file an amended complaint.

FACTS

In 1981, plaintiffs filed a complaint for personal injuries to plaintiff Betsy Ruklick (plaintiff) allegedly arising from manufacture and sale of a defective and unreasonably dangerous intrauterine device (IUD) and its use by plaintiff at the negligent instance of defendant Cromer. After plaintiffs' fourth amended complaint was filed, they secured its voluntary dismissal on May 25, 1984. Thereafter, on May 24, 1985, they refiled their complaint through new counsel.

The fourth amended complaint alleged that as a result of the defective IUD, plaintiff developed an abdominal infection that caused her to undergo a hysterectomy on November 22, 1980, and to contract toxic shock syndrome in that month. The fourth amended complaint also alleged that Cromer had treated plaintiff from July 2, 1971, through 1980; that he prescribed and inserted the IUD on July 2, 1971; that plaintiff continued to use it pursuant to his advice through November 22, 1980; that at all times prior to that date plaintiff did not know or have reason to know that the IUD was defective; that from July 1971 through November 22, 1980, Cromer was guilty of negligently failing to remove the IUD, failing to treat plaintiff properly for complications resulting from its use, and failing to inform plaintiff that she was suffering complications and pelvic inflammatory disease from use of the IUD; that plaintiff discovered her pelvic disease in February 1976; and that "as a result of said defective and unreasonably dangerous condition" plaintiff developed an abdominal infection that caused her to undergo a hysterectomy on November 22, 1980. Plaintiff's husband also claimed for loss of consortium.

Plaintiffs' 1985 refiled complaint alleged that in July 1971 and thereafter, plaintiff was treated by Cromer, who negligently performed numerous acts related to her treatment and the IUD, as a result of which she suffered pelvic inflammatory disease and abdominal infection that caused her to require extensive medical care on November 22, 1980. The refiled complaint also alleged that plaintiff initially sued Cromer on October 13, 1982, "within the applicable statute of limitation," and that on May 25, 1984, plaintiffs secured voluntary dismissal of their complaint. The refiled complaint also alleged the Schmid defendants' manufacture and sale of the IUD prior to May 1971, resulting in plaintiff's disease and treatment on November 22, 1980. The refiled complaint also alleged that plaintiffs initially sued the Schmid defendants on July 2, 1981, "within the applicable statute of limitations," and that on May 25, 1984, they secured voluntary dismissal. Plaintiff's husband's loss-of-consortium claims were also included.

Defendants filed motions to dismiss the refiled complaint on statute-of-limitations grounds. After response by plaintiffs, the trial court dismissed their refiled complaint with prejudice. After plaintiffs moved to vacate the dismissal with prejudice and allow filing of an amended complaint, and after Cromer's response to the motion and a hearing, the trial court denied the motion. This timely appeal followed.

OPINION

I. Refiling's Effect on Statutory Limitations

Plaintiffs contend that, because defendants did not appeal or otherwise object when plaintiffs procured a voluntary dismissal order as to their fourth amended complaint, defendants were subsequently precluded from raising the statute of limitations as a bar when plaintiffs exercised their right to refile their complaint within one year after the voluntary dismissal. Particularly in view of the statutory language conferring on plaintiffs their right to refile, the statement of their contention almost provides its own refutation. Existing case law dispels any remaining doubt.

Plaintiffs' right to refile within one year arises from the following pertinent language in section 13-217 of the Code of Civil Procedure (the Code):

"In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if * * * the action is voluntarily dismissed by the plaintiff, * * * then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, * * * after the action is voluntarily dismissed by the plaintiff * * *." (Ill.Rev.Stat.1985, ch. 110, par. 13-217.)

Included among actions specified in article XIII of the Code and relevant to the case at bar are malpractice actions against physicians and product-liability actions based on strict tort liability. Ill.Rev.Stat.1985, ch. 110, pars. 13-212, 13-213.

Nothing in section 13-217 states that its one-year extension of the filing period for certain actions immunizes those actions from the operation of an otherwise applicable statutory limitation period that had already expired before their original filing. Neither does anything in section 13-217 purport to preempt a defendant's right to plead the preexisting bar of such a statutory limitation period once a refiling in accordance with section 13-217 has occurred.

The courts understandably have seldom been obliged to pass on this curious point, but those called on to consider it have invariably declined to construe section 13-217 as plaintiffs now urge the court to do.

As early as 1954, this court held that where the time prescribed by a Federal housing act for filing suit had expired before the first action was ever filed, bringing a second action within one year after the first action's dismissal did not toll the statute of limitations. (Meyer v. Dimas (1954), 3 Ill.App.2d 117, 120 N.E.2d 571 (abstract of opinion).) While involving an issue as to whether an original "action" had been an action at all, rather than whether such an action must have been filed within the limitation period in order to be refilable, the opinion in Bavel v. Cavaness (1973), 12 Ill.App.3d 633, 299 N.E.2d 435, observed that the precursor to section 13-217 "pre-supposes an old or prior action filed within the original limitation period." Bavel, 12 Ill.App.3d at 637, 299 N.E.2d at 438.

Further persuasive authority in this regard is provided by Perkins v. Hendrickson Manufacturing Co. (7th Cir.1979), 610 F.2d 469, which construed the precursor of section 13-217 as providing a plaintiff no benefit if the statutory limitation period had expired before the first action was ever filed. ( Perkins, 610 F.2d at 470; accord King v. Nashua Corp. (E.D.Mo.1984), 587 F.Supp. 417, 418.) And, as this court noted in Phillips v. Elrod (1985), 135 Ill.App.3d 70, 88 Ill.Dec. 470, 478 N.E.2d 1078, the precursor of section 13-217 allowed a wrongful-death plaintiff to refile within one year of dismissal where the plaintiff had fulfilled the condition precedent by filing her original suit within two years of the accrual of her cause of action as required by the wrongful-death statute. ( Phillips, 135 Ill.App.3d at 72, 88 Ill.Dec. at 472-73, 478 N.E.2d at 1080-81, citing Kristan v. Belmont Community Hospital (1977), 51 Ill.App.3d 523, 526-27, 9 Ill.Dec. 557, 559-60, 366 N.E.2d 1068, 1070-71.) Quite apart from such case law as directly addresses the point, the clear implication of both Phillips and of section 13-217's own language is that it does not provide a plaintiff with a safe harbor in which to ride out even belated efforts by a defendant to invoke a limitation period that had expired before the plaintiff ever filed her first complaint.

The present plaintiffs argue, however, that by treating certain voluntary dismissal...