United Parcel Service v. Church's Fried Chicken, Inc.

• Decision Date: 25 August 1988
• Docket Number: No. 87-1144,87-1144
• Citation: 174 Ill.App.3d 378,528 N.E.2d 367
• Parties: , 123 Ill.Dec. 822 UNITED PARCEL SERVICE, Plaintiff-Appellant, v. CHURCH'S FRIED CHICKEN, INC., a corporation, and Timothy Mason, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 367

528 N.E.2d 367

174 Ill.App.3d 378, 123 Ill.Dec. 822

UNITED PARCEL SERVICE, Plaintiff-Appellant, v. CHURCH'S FRIED CHICKEN, INC., a corporation, and Timothy Mason, Defendants-Appellees.

No. 87-1144.

Appellate Court of Illinois First District, Fourth Division.

Aug. 25, 1988.

Rehearing Denied Sept. 27, 1988.

Thomas G. King, Chicago, for plaintiff-appellant.

Michael J. Lefevour, Chicago, for Church's Fried Chicken, Inc., defendant-appellee.

Kiesler & Berman, Chicago (Rory Cassidy, of counsel), for Timothy Mason, defendant-appellee.

Justice JOHNSON delivered the opinion of the court.

Plaintiff, United Parcel Service, appeals from an order of the circuit court of Cook County dismissing its amended complaint. The sole issue for review is whether the amended complaint relates back to the time of the originally filed action, so as to avoid the bar of the statute of limitations.

We reverse.

On June 1, 1983, plaintiff's vehicle, which was being driven by its employee, Johnny Hunt, was struck by a vehicle being driven by defendant, Timothy Mason, an employee of Church's Fried Chicken, also a defendant herein. On June 26, 1984, plaintiff filed suit against both defendants. Plaintiff sought recovery for property damage and loss of use of its vehicle. Thereafter, plaintiff paid workers' compensation to Hunt for medical expenses he incurred as a result of injuries he sustained in the accident.

Plaintiff filed an amended complaint on July 29, 1986. In addition to declaring its right to recover for property damage and loss of use of its vehicle, plaintiff also requested recovery for the workers' compensation benefits it had paid to Hunt. Plaintiff claimed that it is a subrogee and is entitled to reimbursement for payments it had made to Hunt. Defendants moved to dismiss plaintiff's amended complaint, claiming that the amendment is barred by the 2-year statute of limitations pursuant to section 2-619 of the Code of Civil Procedure (hereinafter the Code). Ill.Rev.Stat.1985, ch. 110, par. 2-619(a)(5).

Plaintiff contends that the trial court erred in dismissing its amendment that added a subrogation claim. Plaintiff argues that under section 2-616(b) of the Code, an amendment is not barred by the tolling of the statute of limitations, unless the original complaint was not filed within the statutory time period. (Ill.Rev.Stat.1985, ch. 110, par. 2-616(b).) Since its original complaint was filed within the 2-year limitation period for personal injury claims, plaintiff asserts its subrogation claim was timely filed.

Plaintiff primarily relies on Geneva Construction Co. v. Martin Transfer & Storage Co. (1954), 4 Ill.2d 273, 122 N.E.2d 540 to support its contention. In that case, Geneva's employee sustained injuries in an accident caused by Martin. Geneva paid the employee workers' compensation and thereafter brought a subrogation action against Martin, pursuant to the Workers' Compensation Act. (Ill.Rev.Stat.1947, ch. 48, sec. 166.) Two years after the filing of the original complaint and 4 years after the accident the injured employee attempted to amend the complaint in order to be made a party plaintiff and to claim common-law damages against defendant.

Initially, the court specifically held that the non-negligent employer has the right of subrogation based on common-law principles. ( Geneva Construction Co., 4 Ill.2d at 284, 122 N.E.2d 540.) Concerning the amended complaint, the court held that pursuant to section 46 of the Civil Practice Act (Ill.Rev.Stat.1933, ch. 110, sec. 46, now Ill.Rev.Stat.1985, ch. 110, par. 2-616), the amendment was not barred by the statute of limitations, but, instead, related back to the time the original complaint had been filed. The court further held that the causes of action in the original complaint and amended pleadings grew out of the same transaction or occurrence, as required by the statute. ( Geneva Construction Co., 4 Ill.2d at 288, 122 N.E.2d 540.) We find Geneva controlling on the issue in the present case.

Both parties agree that plaintiff's amended complaint is barred by the 2-year statute of limitations unless the amendment "relates back" to the date the original complaint was filed. Section 2-616(b) of the Code governs whether an amendment can be deemed to relate back to the date of the original complaint in order to avoid the tolling of the statute of limitation. "The purpose of section 2-616(b) is to prevent a person from losing a cause of action due to technicalities." (Peoples Gas Light & Coke Co. v. Austin (1986), 147 Ill.App.3d 26, 33, 100 Ill.Dec. 612, 497 N.E.2d 790.) Accordingly, section 2-616(b) permits the amended pleading to relate back to the time of filing the original complaint if two requirements are met: "(1) the original pleading was timely filed and (2) the original and amended pleadings indicate that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading." Zeh v. Wheeler (1986), 111 Ill.2d 266, 270-71, 95 Ill.Dec. 478, 489 N.E.2d 1342.

There is no dispute between the...