Relf v. Shatayeva , 2013 IL 114925 ( 2013 )

2013 IL 114925
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 114925)
SANDRA RELF, Appellee, v. NATASHA SHATAYEVA, as Special
Adm’r of the Estate of Joseph Grand Pre, Jr., Appellant.
Opinion filed October 18, 2013.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Justices Freeman, Thomas, Garman, Burke, and Theis concurred
in the judgment and opinion.
Chief Justice Kilbride dissented, with opinion.
OPINION
¶1 Plaintiff, Sandra Relf, brought an action against Joseph Grand
Pre, Jr., in the circuit court of Cook County to recover damages for
personal injuries she sustained in a motor vehicle accident. At the
time plaintiff filed her action, Mr. Grand Pre was deceased, his will
had been admitted to probate, and letters of office had been issued to
his son to serve as independent administrator of his estate. Claiming
she was not aware of Mr. Grand Pre’s death when she filed suit, and
without notice to the estate, the independent administrator, or Grand
Pre’s heirs and legatees, plaintiff subsequently sought and was
granted permission to have a secretary in her attorney’s office
appointed as “special administrator” to defend Mr. Grand Pre’s estate
against her claims.
¶2 Substitution of the “special administrator” did not occur until
after the two-year limitations period for personal injury actions had
expired. The “special administrator” therefore moved to dismiss
plaintiff’s cause of action as time-barred under section 2-619 of the
Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)). The circuit
court found the “special administrator’s” motion to be meritorious
and dismissed, rejecting plaintiff’s arguments that the action should
be deemed timely under the provisions of section 13-209 of the Code
of Civil Procedure (735 ILCS 5/13-209 (West 2010)) which govern
the procedures to be followed where a person against whom a cause
of action may be brought is deceased. The appellate court reversed
and remanded to the circuit court for further proceedings. 2012 IL
App (1st) 112071. We granted defendant leave to appeal (Ill. S. Ct.
R. 315 (eff. May 1, 2013)) and allowed the Illinois Trial Lawyers
Association to file a brief amicus curiae pursuant to Illinois Supreme
Court Rule 345 (Ill. S. Ct. R. 345 (eff. Sept. 20, 2010)). For the
reasons that follow, we now reverse the appellate court’s judgment
and affirm the judgment of the circuit court.
¶3 BACKGROUND
¶4 The motor vehicle accident which gave rise to this litigation
occurred in February of 2008. In February of 2010, just as the two-
year statute of limitations for personal injury actions (735 ILCS 5/13-
202 (West 2010)) was about to expire, plaintiff filed this action
against Mr. Grand Pre in the circuit court of Cook County to recover
damages for the injuries she sustained in the accident.
¶5 Mr. Grand Pre was the sole defendant named in the complaint. At
the time the complaint was filed, however, Mr. Grand Pre was
actually deceased. He had passed away on April 25, 2008, shortly
after the accident.
¶6 The record shows that a paid death notice giving the
circumstances of Mr. Grand Pre’s death was published in the Chicago
Tribune on April 30, 2008. The record further shows that probate
proceedings involving his estate were initiated in the circuit court of
Cook County in August of 2008. Mr. Grand Pre’s will was admitted
to probate in September of 2008 and, at the same time, letters of
office were issued to his son, Gary, to serve as independent
administrator of Mr. Grand Pre’s estate. These were all matters of
public record.
¶7 The sheriff failed to effectuate service of process on Mr. Grand
Pre, who, as we have just noted, was dead. Still not realizing that Mr.
Grand Pre was deceased, plaintiff then sought and was granted leave
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to have a special process server appointed to attempt service on him.
The special process server quickly discovered that Mr. Grand Pre was
no longer living and conveyed that information to plaintiff on May
17, 2010. Plaintiff took no immediate corrective action in response to
the special process server’s news, and on May 24, 2010, the circuit
court dismissed plaintiff’s cause of action for lack of diligence in
attempting to effectuate service.1 Because plaintiff’s failure to
exercise diligence occurred after the governing limitations period had
expired, the dismissal was with prejudice. Ill. S. Ct. R. 103(b) (eff.
July 1, 2007).
¶8 On September 24, 2010, plaintiff asked the circuit court to set
aside its order dismissing the case for lack of diligence. In a separate
motion filed the same day, plaintiff also asked the court to take notice
of Mr. Grand Pre’s death, to appoint a “special administrator” for the
purposes of defending plaintiff’s action against him, and to grant
plaintiff leave to file an amended complaint.
¶9 In support of her request for a “special administrator,” plaintiff
asserted that she had not learned of Mr. Grand Pre’s death until
receiving notice of it from the special process server and that she was
unaware as to whether “any personal representative has been
appointed by the Estate of [Mr. Grand Pre].” Plaintiff proposed that
Natasha Shatayeva, an employee/legal assistant of her lawyer, be
appointed to serve “as the Special Administrator of the Estate of [Mr.
Grand Pre], deceased.” Shatayeva was the attorney’s secretary.
¶ 10 Following a hearing, the circuit court granted all of plaintiff’s
requests. It vacated the dismissal and reinstated the action, “spread
[Mr. Grand Pre’s] death of record, appointed Natasha Shatayeva “as
the Special Administrator of the Estate of [Mr. Grand Pre],
deceased,” and granted plaintiff leave to file an amended complaint,
which plaintiff promptly did. The circuit court’s order appointing
Shatayeva as “special administrator” gave no statutory basis for that
action and none was set forth in plaintiff’s motion.
¶ 11 Once Shatayeva was designated by the court to represent Mr.
Grand Pre’s estate, she moved to dismiss plaintiff’s cause of action
pursuant to Supreme Court Rule 103(b) (Ill. S. Ct. R. 103(b) (eff. July
1, 2007)) on the grounds that plaintiff had “failed to take substantive
1
At this point in the proceedings, it appears that the circuit court did not
know the reason Grand Pre had not been served, only that service had not
been accomplished.
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efforts to serve Defendant with the lawsuit timely [sic]” and that she,
Shatayeva, was not served “until on or about October 7, 2010, over
seven months after the statute of limitation [had run].” That motion
was denied by the court in February of 2011. Thereafter, plaintiff was
allowed to file a second amended complaint correcting an error in her
previous pleadings regarding Mr. Grand Pre’s name.
¶ 12 Plaintiff’s second amended complaint was filed in March of 2011.
Shatayeva responded by filing a motion to dismiss pursuant to section
2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West
2010)), on the grounds that plaintiff’s cause of action was not
commenced within the time limited by law. Although plaintiff’s
original complaint was filed in the circuit court just within the two-
year limitation period for actions for damages for an injury to the
person (735 ILCS 5/13-202 (West 2010)), that complaint, as we have
discussed, was directed against Mr. Grand Pre himself even though
he had already been dead for approximately a year and 10 months.
Shatayeva argued that under Illinois law, a dead person is a
nonexistent entity and cannot be a party to a lawsuit.
Correspondingly, a lawsuit instituted against a person who is already
dead at the time the suit is filed is a nullity and void ab initio.
Shatayeva asserted that the complaint naming Mr. Grand Pre
therefore could not operate to preserve plaintiff’s claims arising from
the February 2008 accident.
¶ 13 Shatayeva further argued that the General Assembly has provided
litigants with a mechanism for bringing a cause of action where, as
here, a person against whom an action may be brought dies before
expiration of the time limit for commencement of that action, and the
cause of action survives and is not otherwise barred. Shatayeva
asserted, however, that plaintiff failed to follow the statutory
requirements in this case.
¶ 14 Under section 13-209(b)(1) of the Code of Civil Procedure (735
ILCS 5/13-209(b)(1) (West 2010)), if an estate has been opened for
the decedent and a personal representative has been appointed by the
court, the “action may be commenced against his or her personal
representative after the expiration of the time limited for the
commencement of the action, and within 6 months after the person’s
death.” If, on the other hand, “no petition has been filed for letters of
office for the deceased’s estate,” then under section 13-209(b)(2) of
the Code of Civil Procedure (735 ILCS 5/13-209(b)(2) (West 2010)),
“the court, upon the motion of a person entitled to bring an action and
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after the notice to the party’s heirs or legatees as the court directs and
without opening an estate, may appoint a special representative for
the deceased party for the purposes of defending the action.”
¶ 15 In this case, a petition for letters of office for Mr. Grand Pre’s
estate had been filed and a personal representative, Mr. Grand Pre’s
son, Gary, had been appointed by the circuit. As between the
foregoing provisions, section 13-209(b)(1) rather than section 13-
209(b)(2) was therefore the relevant provision. Under that statute,
plaintiff could have preserved her claims arising from the collision
involving Mr. Grand Pre, had she known of Grand Pre’s death, by
bringing the action against the personal representative appointed by
the court in the probate proceeding and doing so within six months of
Mr. Grand Pre’s death. But plaintiff did neither of those things.
Shatayeva therefore asserted that section 13-209(b)(1) could not be
applied here.
¶ 16 Shatayeva further argued that the legislature has provided an
additional safe harbor to aid plaintiffs where, as is claimed by
plaintiff’s counsel to be the situation here, the action is brought
directly against the deceased person and the plaintiff does not learn
that the defendant is actually dead until the limitations period has
expired. In such circumstances, and assuming the cause of action
survives and is not otherwise barred, section 13-209(c) of the Code
of Civil Procedure (735 ILCS 5/13-209(c) (West 2010)) allows the
plaintiff to proceed directly against the personal representative,
notwithstanding the fact that the claims would otherwise be untimely.
That option, however, is subject to four conditions. The plaintiff must
proceed “with reasonable diligence to move the court for leave to file
an amended complaint, substituting the personal representative as
defendant.” 735 ILCS 5/13-209(c)(1) (West 2010). The plaintiff must
also proceed “with reasonable diligence to serve process upon the
personal representative.” 735 ILCS 5/13-209(c)(2) (West 2010). If
process is served more than six months after issuance of letters of
office to the personal representative, the “liability of the estate is
limited as to recovery to the extent the estate is protected by liability
insurance.” 735 ILCS 5/13-209(c)(3) (West 2010). Finally, “[i]n no
event can a party commence an action under this subsection (c) unless
a personal representative is appointed and an amended complaint is
filed within 2 years of the time limited for the commencement of the
original action.” 735 ILCS 5/13-209(c)(4) (West 2010).
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¶ 17 Although a personal representative had been appointed in the
matter before us in September of 2008, plaintiff never moved the
court to have that personal representative substituted as a defendant
and never attempted service on that personal representative. Instead,
the plaintiff arranged to have one of her attorney’s employees, his
secretary, appointed “special administrator.” Shatayeva asserted that
where, as here, a personal representative has already been appointed
in probate proceedings, appointment of a separate special
representative for the deceased party is improper. Accordingly,
Shatayeva asserted, the pleadings naming her as a party are
impermissible and should be stricken and the case should be
dismissed as time-barred.
¶ 18 The circuit court found Shatayeva’s arguments to be meritorious
and granted her motion to dismiss. The appellate court reversed and
remanded. 2012 IL App (1st) 112071. It held that because plaintiff
was unaware of Mr. Grand Pre’s death at the time she filed her
complaint, section 13-209(c) of the Code of Civil Procedure was the
governing provision in this case and that section 13-209(b) was
inapplicable. 2012 IL App (1st) 112071, ¶¶ 23-25. It further held that
plaintiff’s actions in securing the appointment of Shatayeva as
“special administrator” when and how she did satisfied the
requirements of section 13-209(c) (2012 IL App (1st) 112071, ¶ 26)
and were sufficient to preserve the viability of plaintiff’s otherwise
untimely cause of action. It therefore reversed and remanded for
further proceedings. This appeal followed.
¶ 19 ANALYSIS
¶ 20 This case was decided by the circuit court on a motion to dismiss
pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS
5/2-619 (West 2010)). A motion to dismiss under section 2-619
admits the legal sufficiency of the plaintiff’s complaint, but asserts an
affirmative defense or other matter that avoids or defeats the
plaintiff’s claim. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). Here,
the contention was that the action was not commenced within the
time limited by law. 735 ILCS 5/2-619(a)(5) (West 2010).
¶ 21 In reviewing whether a cause of action is untimely, we are not
bound by the conclusions of either the circuit or the appellate court.
Whether a cause of action was properly dismissed under section
2-619(a)(5) of the Code of Civil Procedure based on the statute of
limitations is a matter we review de novo. Ferguson v. City of
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Chicago, 213 Ill. 2d 94, 99 (2004). In addition, whether plaintiff’s
cause of action was timely in this case turns on how the provisions of
section 13-209 should be interpreted. Statutory construction presents
a question of law. Our review is de novo for this reason as well.
Township of Jubilee v. State of Illinois, 2011 IL 111447, ¶ 23.
¶ 22 We begin our review with the obvious and unfortunate reality that
the actual alleged tortfeasor, Mr. Grand Pre, is no longer with us. He
died shortly after the motor vehicle accident which gave rise to this
case, and was long dead by the time plaintiff filed her initial
complaint in February of 2010. Under the common law of Illinois, a
dead person is a nonexistent entity and cannot be a party to a suit.
Volkmar v. State Farm Mutual Automobile Insurance Co., 104 Ill.
App. 3d 149, 151 (1982). If a person is already dead when an action
is asserted against him or her, the proceedings will not invoke the trial
court’s jurisdiction, and any judgment entered in the case will be a
nullity. Danforth v. Danforth, 111 Ill. 236, 240 (1884); Bricker v.
Borah, 127 Ill. App. 3d 722, 724 (1984). For these reasons, plaintiff’s
initial complaint naming Mr. Grand Pre as the defendant did not
operate to preserve plaintiff’s claims arising from her collision with
Mr. Grand Pre’s vehicle in February of 2008. Those claims remain
viable if and only if plaintiff’s subsequent action in substituting
Shatayeva as the defendant, which did not occur until the normal two-
year limitations period for personal injury actions had already
expired, operated to preserve plaintiff’s otherwise untimely cause of
action.
¶ 23 The parties agree that resolution of this question rests squarely on
the construction and application of section 13-209 of the Code of
Civil Procedure (735 ILCS 5/13-209 (West 2010)). The principles
governing our construction of statutes are well established. The
primary goal in construing a statute is to ascertain and give effect to
the legislature’s intent. The best indication of that intent is the
language of the statute. Wilkins v. Williams, 2013 IL 114310, ¶ 14. In
construing that language, words and phrases should not be considered
in isolation. Rather, the language in each section of the statute must
be examined in light of the statute as a whole, which is construed in
conjunction with other statutes touching on the same or related
subjects. Carter v. SSC Odin Operating Co., 2012 IL 113204, ¶ 37.
¶ 24 Section 13-209 appears in article XIII of the Code of Civil
Procedure (735 ILCS 5/13-101 et seq. (West 2010)), which deals with
limitations on actions. Statutes of limitation, like other statutes, must
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be construed in the light of their objectives. The basic policy of such
statutes is to afford a defendant a fair opportunity to investigate the
circumstances upon which liability against him is predicated while
the facts are accessible. Geneva Construction Co. v. Martin Transfer
& Storage Co., 4 Ill. 2d 273, 289-90 (1954). The General Assembly
has recognized, however, that injustice might result when a party by
or against whom a cause of action might be brought dies before the
otherwise applicable limitations period has expired. It is that problem
to which section 13-209 is addressed.
¶ 25 Section 13-209 is divided into three sections. Subsection (a) (735
ILCS 5/13-209(a) (West 2010)) governs when and how a case may
proceed where the party who dies prior to expiration of the limitations
period is the plaintiff, a situation not present here. Where the
deceased party is the defendant, subsections (b) (735 ILCS 5/13-
209(b) (West 2010)) or (c) (735 ILCS 5/13-209(c) (West 2010)) come
into play.
¶ 26 Subsection (b) sets forth the basic procedures and time
requirements that must be followed in situations where a person
against whom an action may be filed dies before the limitations
period runs out, the action survives the person’s death, and it is not
otherwise barred. If no petition has been filed for letters of office for
the decedent’s estate, the court may appoint a “special representative”
for the deceased party for the purposes of defending the action. 735
ILCS 5/13-209(b)(2) (West 2010). Otherwise, i.e., if a petition has
been filed for letters of office for the decedent’s estate, an action may
be commenced against the “personal representative” appointed by the
court. 735 ILCS 5/13-209(b)(1) (West 2010).
¶ 27 The provisions of section 13-209(b) presuppose that the plaintiff
is aware of the defendant’s death at the time he or she commences the
action. A separate set of requirements apply where, as in this case, the
defendant’s death is not known to plaintiff before expiration of the
limitations period and, unaware of the death, the plaintiff commences
the action against the deceased defendant directly. This scenario is
governed by section 13-209(c) (735 ILCS 5/13-209(c) (West 2010)).
Assuming that the cause of action survives the defendant’s death and
is not otherwise barred, section 13-209(c) permits a plaintiff to
preserve his or her cause of action by substituting the deceased
person’s “personal representative” as the defendant. As set forth
earlier in this opinion, however, that option is subject to certain
conditions. The plaintiff must proceed with reasonable diligence in
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both “mov[ing] the court for leave to file an amended complaint,
substituting the personal representative as defendant” (735 ILCS
5/13-209(c)(1) (West 2010)) and “serv[ing] process upon the personal
representative” (735 ILCS 5/13-209(c)(2) (West 2010)). If process is
served more than six months after issuance of letters of office to the
personal representative, “the liability of the estate is limited as to
recovery to the extent the estate is protected by liability insurance.”
735 ILCS 5/13-209(c)(3) (West 2010). Moreover, “[i]n no event can
a party commence an action under this subsection (c) unless a
personal representative is appointed and an amended complaint is
filed within 2 years of the time limited for the commencement of the
original action.” 735 ILCS 5/13-209(c)(4) (West 2010).
¶ 28 The appellate court here concluded that section 13-209(c) (735
ILCS 5/13-209(c) (West 2010)) governs this case. We believe this
conclusion is well founded. Section 13-209(c) deals specifically and
unambiguously with the situation where a party has commenced an
action against a deceased person and that person’s death is unknown
to the party before the statute of limitations expires. Augustus v.
Estate of Somers, 278 Ill. App. 3d 90, 98 (1996). That is precisely the
situation before us here. Plaintiff sued Mr. Grand Pre before the two-
year limitations period for personal injury actions had run out, though
just barely, and proceeded against him directly because she did not
yet know that he had died a year and 10 months earlier. It was not
until several months after the statute of limitations had expired that
she became aware of his death. Section 13-209(c) therefore controls.
See Walker v. Ware, 2013 IL App (1st) 122364, ¶ 20.
¶ 29 Why plaintiff was not yet aware of Mr. Grand Pre’s death when
she filed suit is unclear. The record shows that a paid death notice had
been published in the newspaper, that probate proceedings had
commenced, and that information regarding Mr. Grand Pre’s death
and the related probate proceedings was readily available through the
circuit clerk’s office and online. But whether plaintiff should have
known of Mr. Grand Pre’s death is not the question. Under the
express terms of section 13-209(c), the issue is simply whether Mr.
Grand Pre’s death was unknown to plaintiff. The reasonable diligence
expressly required by the legislature with respect to some actions
under section 13-209(c) is notably absent with respect to knowledge
of a defendant’s death. That being so, we cannot rewrite the statute to
add such a provision. Where a statutory enactment is clear and
unambiguous, a court is not at liberty to depart from the plain
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language and meaning of the statute by reading into it exceptions,
limitations or conditions that the legislature did not express. Solich v.
George & Anna Portes Cancer Prevention Center of Chicago, Inc.,
158 Ill. 2d 76, 83 (1994).
¶ 30 We turn then to the central issue in this case: whether plaintiff’s
actions once she did learn of Mr. Grand Pre’s death complied with the
conditions required by section 13-209(c). If those conditions were not
satisfied, the circuit court was correct to conclude that section 13-
209(c) could not be invoked by plaintiff in aid of her otherwise
invalid and untimely cause of action. If the statute’s conditions were
met, as the appellate court believed, plaintiff’s cause of action
remains viable and the circuit court should not have dismissed it.
¶ 31 There is no dispute that plaintiff’s cause of action falls within the
category of cases covered by section 13-209(c) in that it was
commenced “against a deceased person whose death [was] unknown
to [the plaintiff] before the expiration of the time limited for the
commencement thereof, and the cause of action survive[d], and is not
otherwise barred.” 735 ILCS 5/13-209(c) (West 2010). Nor is there
any dispute that plaintiff therefore had the right to commence an
action against Mr. Grand Pre’s “personal representative,” subject to
the various specific conditions set forth in section 13-209(c),
including that she proceed with reasonable diligence “to move the
court for leave to file an amended complaint, substituting the personal
representative as defendant” (735 ILCS 5/13-209(c)(1) (West 2010))
and “to serve process upon the personal representative” (735 ILCS
5/13-209(c)(2) (West 2010)). The real question in this case is whether
Shatayeva qualifies as a “personal representative” within the meaning
of the statute. We believe that she does not.
¶ 32 The Code of Civil Procedure does not define the term “personal
representative” for purposes of section 13-209. It is therefore
appropriate for us to consult a dictionary to determine its plain
meaning. People v. Perry, 224 Ill. 2d 312, 330 (2007). In its most
general sense, “personal representative” refers to any “[a] person who
manages the legal affairs of another because of incapacity or death.”
Black’s Law Dictionary 1416 (9th ed. 2009). In the particular case of
persons who have died leaving estates which must be settled and
distributed, the situation before us here, “personal representative”
encompasses both of two basic categories of individuals: executors,
who are named in the decedent’s will, and administrators, who are
appointed where the decedent is intestate or else left a will but has no
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executor. Id. at 1416-17; 33 C.J.S. Executors and Administrators § 3
(2009); Hayden v. Wheeler, 33 Ill. 2d 110, 112 (1965); Johnson v.
Van Epps, 110 Ill. 551, 559-60 (1884).
¶ 33 The rules governing executors and administrators are set forth in
the Probate Act of 1975 (755 ILCS 5/1-1 et seq. (West 2010)). Under
the Act, executors and administrators share a common trait. They are
both officers of the court to whom letters of office are issued. In the
case of executors, these are letters testamentary. 755 ILCS 5/6-8
(West 2010). In the case of administrators, they are letters of
administration. 755 ILCS 5/9-2 (West 2010). The Probate Act also
recognizes “administrator to collect” as a type of representative in
addition to executors and administrators. 755 ILCS 5/1-2.15 (West
2010) . These differ from regular administrators (see 755 ILCS 5/10-1
et seq. (West 2010)), but also require issuance of letters of office. See
755 ILCS 5/10-1 (West 2010). Issuance of letters of office would
therefore appear to be a hallmark of “personal representatives” as that
term is commonly understood when applied to situations involving
estates which must be settled and distributed following a person’s
death.
¶ 34 The terminology employed by the General Assembly in section
13-209 of the Code of Civil Procedure (735 ILCS 5/13-209 (West
2010)) is consistent with this usage. In setting forth the requirements
which must be followed in order to preserve a cause of action when
a party by or against whom the action might be brought dies before
the otherwise applicable limitations period has expired, section 13-
209 of the Code of Civil Procedure (735 ILCS 5/13-209 (West 2010))
distinguishes between “representatives” or “personal representatives,”
on the one hand, and “special representatives,” on the other. Where
the legislature has employed certain language in one part of a statute
and different language in another, we may assume different meanings
were intended (State Bank of Cherry v. CGB Enterprises, Inc., 2013
IL 113836, ¶ 56), and the difference in meaning here is apparent.
“Special representatives” are referenced only with respect to
situations where “no petition for letters of office for the decedent’s
estate has been filed.” See 735 ILCS 5/13-209(a)(2), (b)(2) (West
2010). In all other situations, which by inference must be whenever
petitions for letters of office have been filed, the statute refers to
“representatives” or “personal representatives.”
¶ 35 Plaintiff would have us treat “personal representatives” and
“special representatives” as interchangeable, but her approach is
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incompatible with the history of section 13-209. Prior to its
amendment by Public Act 90-111 in 1997, section 13-209 only made
provision for actions by or against “personal representatives.” See
735 ILCS 5/13-209(a), (b), (c) (West 1996). No mention was made
of “special representatives.” The references to “special
representatives” were all added at the same time through Public Act
90-111, and in each instance, the new provisions allowing
appointment of “special representatives” to bring or defend against
actions were preceded by the conditional clauses “if no petition for
letters of office for the decedent’s estate has been filed” (735 ILCS
5/13-209(a)(2) (West 2010)) and “if no petition has been filed for
letters of office for the deceased’s estate” (735 ILCS 5/13-209(b)(2)
(West 2010)). By adding the new term “special representative” and
expressly limiting use of “special representatives” to situations where
no petition for letters of office had been filed, the General Assembly
must have understood the preexisting statutory term “personal
representatives” as referring to individuals to whom letters of office
had been issued. No other interpretation of the statutory change is
tenable.
¶ 36 That a “personal representative” means one appointed pursuant to
a petition for issuance of letters of office is confirmed by section 13-
209(c) (735 ILCS 5/13-209(c) (West 2010)), the specific provision
governing this case. As noted earlier in this opinion, that subsection
affords litigants an opportunity to save an otherwise time-barred
claim where they have sued a deceased person whose death was
unknown to them before expiration of the applicable statute of
limitations. To avail themselves of this opportunity, however,
litigants must “proceed[ ] with reasonable diligence to serve process
upon the personal representative” (735 ILCS 5/13-209(c)(2) (West
2010)) and “[i]f process is served more than 6 months after the
issuance of letters of office, liability of the estate is limited as to
recovery to the extent the estate is protected by liability insurance”
(735 ILCS 5/13-209(c)(3) (West 2010)). If “personal representative”
was not intended by the legislature to refer specifically to an
individual appointed to settle and distribute an estate pursuant to a
petition for issuance of letters of office, whether as an executor or as
an administrator, using the time when letters of office issued as a
point of demarcation regarding the scope of the estate’s liability
would serve no purpose.
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¶ 37 That “personal representative” as used in section 13-209 was
intended by the legislature to refer specifically to individuals
appointed to settle and distribute a decedent’s estate pursuant to a
petition for issuance of letters of office is also consistent with how the
term is used in section 2-1008(b) of the Code of Civil Procedure (735
ILCS 5/2-1008(b) (West 2010)), which deals with the related question
of what happens when a party to an action dies after suit has been
filed. There, as in section 13-209, the term “special representative” is
used when referring to individuals appointed by the court in situations
where no petition for letters of office for the decedent’s estate has
been filed. 735 ILCS 5/2-1008(b)(1), (b)(2) (West 2010). Where a
petition for letters of office has been filed, the relevant entity is the
“personal representative,” just as it is under section 13-209. See 735
ILCS 5/2-1008(b)(2) (West 2010).
¶ 38 That a “personal representative” refers to someone appointed
pursuant to a petition for letters of office while “special
representative” designates someone appointed by the court in
situations where no petition for letters of office for the decedent’s
estate has been filed is further supported by the fact that section 2-
1008(b) includes an express provision for substituting the personal
representative for the special representative “[a]t any time that an
estate is opened with a representative other than the special
representative.” 735 ILCS 5/2-1008(b)(1) (West 2010). If the terms
“personal representatives” and “special representatives” were
synonymous and freely interchangeable, this provision would make
no sense.
¶ 39 When construing statutes, it is appropriate to consider similar and
related enactments, though not strictly in pari materia. We must
presume that several statutes relating to the same subject are governed
by one spirit and a single policy, and that the legislature intended the
several statutes to be consistent and harmonious. Wade v. City of
North Chicago Police Pension Board, 226 Ill. 2d 485, 511-12 (2007).
Accordingly, we believe that section 2-1008(b) of the Code of Civil
Procedure (735 ILCS 5/2-1008(b) (West 2010)) supports our
interpretation of section 13-209(c).
¶ 40 So, too, does section 6-139 of the Code of Civil Procedure (735
ILCS 5/6-139 (West 2010)). That statute deals with the death of the
plaintiff in an action for ejectment. It is clear from the text of the law
that when it refers to “the decedent’s personal representatives,” it
means individuals to whom letters of office have been granted by the
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court under the Probate Act. We know that is what it means because
“the granting of letters of office to them” is one of the things that
must be demonstrated in order for a personal representatives to step
into the shoes of a “plaintiff in ejectment [who] dies after issue joined
or judgment entered therein.” 735 ILCS 5/6-139 (West 2010).
¶ 41 In this case, a petition for issuance of letters of office was filed
pursuant to the Probate Act, but it was filed by Mr. Grand Pre’s son,
and it was the son to whom the letters of office were granted. Mr.
Grand Pre’s son was therefore his “personal representative” under
section 13-209(c) of the Code of Civil Procedure (735 ILCS 5/13-
209(c) (West 2010)). Shatayeva was not. Shatayeva did not seek and
was not granted either letters testamentary or letters of administration
to settle and distribute Mr. Grand Pre’s estate. She was merely
appointed at plaintiff’s request to serve as “special administrator.”
¶ 42 Why plaintiff referred to Shatayeva’s appointment using the term
“special administrator” is unclear. She cited no statutory authority for
that request in her motion, and the term is not used anywhere in
section 13-209. It may be because plaintiff was thinking in terms of
an earlier verison of section 2-1008(b). We surmise this because
section 2-1008(b) deals with a related problem, as we have already
noted, and prior to its amendment in 1997, it used the term “special
administrator” when referring to an individual appointed in cases
where no petition for issuance of letters of office had been issued
(735 ILCS 5/2-1008(b) (West 1996)), instead of the current phrase,
“special representative.”
¶ 43 As previously discussed, section 2-1008(b) itself can have no
direct application here. It applies where a party dies while a case is
already pending. It may not be used where, as in this case, a defendant
dies before the action is instituted. Greene v. Helis, 252 Ill. App. 3d
957, 961 (1993); Sepeda v. LaBarre, 303 Ill. App. 3d 595, 598
(1999).2
2
Gaddy v. Schulte, 278 Ill. App. 3d 488 (1996), a panel of the Fifth
District of the Appellate Court did sanction the use of section 2-1008 of the
Code of Civil Procedure for appointment of a “special administrator” to
defend an action where the alleged tortfeasor died before the action was
instituted and indicated that a person could qualify as a personal
representative under section 13-209 (735 ILCS 5/13-209 (West 2010)) even
though letters of office had not issued to that person under the Probate Act.
Gaddy has not been followed by the courts of Illinois and for the reasons
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¶ 44 While section 2-1008(b) is not directly applicable, case law
construing the previous version of the law confirms our interpretation
of the law. A “special administrator” appointed under the former
version of section 2-1008(b) of the Code of Civil Procedure to defend
against an action was not the equivalent of an administrator appointed
pursuant to a petition for issuance of letters of office under the
Probate Act. Hannah v. Gilbert, 207 Ill. App. 3d 87, 90 (1990). No
letters of office were issued to a “special administrator,” and “special
administrators” had no authority to distribute assets of a decedent’s
estate. Id. In the parlance of the current statute, they were therefore
equivalent to “special representatives,” not “personal
representatives.” Accordingly, appointment of a “special
administrator” would not operate to trigger the provisions of section
13-209 of the Code of Civil Procedure permitting actions against an
individual appointed to settle and distribute an estate pursuant to a
petition for issuance of letters of office, i.e., personal representatives.
See Greene v. Helis, 252 Ill. App. 3d at 961; Lindsey v. Special
Administrator of the Estate of Phillips, 219 Ill. App. 3d 372, 376
(1991); Bricker v. Borah, 127 Ill. App. 3d 722, 725 (1984).
¶ 45 In Keller v. Walker, 319 Ill. App. 3d 67 (2001), a panel of the
Third District of the Appellate Court did conclude that the plaintiffs
in a personal injury action could satisfy the requirements of section
13-209(c) by seeking appointment of a special administrator in a case
where the alleged tortfeasor had died without a will and no estate had
been opened. In reaching that conclusion, however, the court did not
recognize, consider or discuss the significance of section 13-209(c)’s
use of the term “personal representative”; that a special administrator
would only qualify as a “special representative,” not a “personal
representative”; or that under section 13-209(c), as throughout the
statutory scheme enacted by our legislature, a “personal
representative” refers specifically to an individual appointed to settle
and distribute an estate pursuant to a petition for issuance of letters of
office. There is no indication in Keller that these problems were even
raised. The decision is therefore of no value in the resolution of this
case. See Village of Lake in the Hills v. Laidlaw Waste Systems, Inc.,
160 Ill. App. 3d 427, 431 (1987) (no precedent established on points
neither argued nor discussed in an opinion). Keller is also inapposite
because, of course, an estate had been opened in this case, a petition
discussed in this opinion, it is incorrect on both counts.
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for issuance of letters of office had been filed and a personal
representative had been appointed long before plaintiff first instituted
her cause of action.3
¶ 46 Under the plain language of section 13-209(c), plaintiff was
obligated to proceed against Mr. Grand Pre’s duly appointed personal
representative, substituting him as the defendant, once she learned of
Mr. Grand Pre’s death if she wished to preserve her otherwise invalid
cause of action. She did not. Instead, as we have noted, she elected to
have her lawyer’s secretary appointed “special administrator” and
sued her instead. Under these circumstances, the circuit court was
correct when it concluded that section 13-209(c) could not properly
be invoked by plaintiff to preserve her otherwise untimely cause of
action.
¶ 47 Practitioners familiar with trusts and estates will recognize that
the Probate Act itself makes provision for appointment of special
administrators under limited circumstances. They will also recognize,
however, that those provisions are of no use to plaintiff here and
therefore cannot alter the outcome of this case.
¶ 48 Section 8-1(e) of the Act (755 ILCS 5/8-1(e) (West 2010))
authorizes appointment of a special administrator to defend a
proceeding to contest the validity of a will or prosecute an appeal
from a judgment in a will contest case if the decedent’s representative
fails or refuses to do so or if there is no representative to act when the
contest is brought. Similarly, section 8-2(e) of the Act (755 ILCS 5/8-
2(e) (West 2010)) authorizes appointment of a special administrator
to defend a proceeding to probate a will or prosecute an appeal where
admission of a will to probate has been denied if the decedent’s
representative fails or refuses to do so when ordered by the court or
if there is no representative then acting. Those circumstances are
clearly not present in this case. There is no will contest, admission of
the will to probate was not denied, a representative for defendant was
3
Minikon v. Escobedo, 324 Ill. App. 3d 1073 (2001), another appellate
decision involving section 13-209(c), concerned the relationship between
that statute and 2-616(d) of the Code of Civil Procedure (735 ILCS 5/2-
616(d) (West 2010)) and whether plaintiff had met section 13-209(c)’s due
diligence requirements. No issue was raised as to whether a “special
administrator” qualified as a “personal representative” and it is
distinguishable from this case for the same reasons that Keller is.
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already in place, and there is no indication that the representative
failed or refused to undertake any of his obligations.
¶ 49 The Probate Act also allows appointment of a special
administrator to represent the estate in a proceeding for issuance of
a citation on behalf of the estate in cases where a person is believed
“(1) to have concealed, converted or embezzled or to have in his
possession or control any personal property, books of account, papers
or evidences of debt or title to lands which belonged to a person
whose estate is being administered in that court or which belongs to
his estate or to his representative or (2) to have information or
knowledge withheld by the respondent from the representative and
needed by the representative for the recovery of any property by suit
or otherwise” (755 ILCS 5/16-1(a) (West 2010)), and decedent’s
personal representative is the respondent in the case (755 ILCS 5/16-
1(c) (West 2010)). Again, however, these circumstances are not
present here. This is not a citation proceeding on behalf of the estate,
and the personal representative named by Mr. Grand Pre, his son, is
not a respondent.
¶ 50 Finally, section 18-8 of the Act (755 ILCS 5/18-8 (West 2010))
calls for appointment of a special administrator in cases where the
decedent’s representative or the representative’s attorney has a claim
against the estate. This situation is not before us either. The claim
here is not being pressed by Mr. Grand Pre’s personal representative,
or by an attorney for his personal representative.
¶ 51 We note, moreover, that a common thread in all of the foregoing
provisions is that appointment of a special administrator is
appropriate only where action or inaction by the personal
representative designated by the decedent may be adverse to the
interests of the decedent’s estate. Plaintiff has not cited any cases
permitting the appointment of a special administrator to protect the
interests of a decedent’s estate where, as here, an estate is already
opened, letters of office have already issued to an executor to settle
and distribute the estate, the executor has undertaken his
responsibilities and no conflict of interest is alleged.
¶ 52 The absence of authority for appointment of a separate special
administrator under such circumstances is not difficult to explain.
Having two separate individuals attempting to operate simultaneously
and independently on behalf of the same decedent poses obvious
problems for the prompt, efficient and final settlement of the
decedent’s affairs. Moreover, Illinois law is clear that a testator has
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the right to designate by will who shall act as his personal
representative, and a court may not ignore his directions and appoint
someone else to act in that capacity. Where, as here, the testator has
designated such a representative, the appointment of another party to
serve as special administrator impermissibly infringes on that right
and is not allowed. See In re Estate of Faught, 111 Ill. App. 3d 1043,
1045 (1983). Indeed, in addressing this problem in the context of the
Wrongful Death Act (740 ILCS 180/2.1 (West 2010)), courts have
concluded that appointment of a special administrator after a petition
for issuance of letters of office has been filed is void. Cushing v.
Greyhound Lines, Inc., 2012 IL App (1st) 100768, ¶¶ 104-05.
¶ 53 Plaintiff urges us to adopt a “no harm, no foul” approach and
sanction what she attempted to do on the grounds that there would be
no prejudice to Mr. Grand Pre’s estate from multiple representatives
because she is not seeking recovery from Shatayeva beyond amounts
for which the estate is protected by liability insurance. A threshold
problem with this argument is that we have no basis for evaluating it.
While plaintiff may perceive no prejudice to the estate, her interests
are inherently antithetical to its, and the estate may very well have a
different view. Unfortunately, we do not know what the personal
representative of the estate or the heirs or legatees think because none
of them were ever notified of this litigation or Shatayeva’s
appointment to defend against it.
¶ 54 The intrinsic conflict between plaintiff’s interests and those of the
estate is problematic for another reason as well. The Probate Act
expressly and unequivocally holds that “[t]he person appointed ***
special administrator under this Act may not be selected upon the
recommendation of any person having an interest adverse to the
person represented by the *** special administrator or by the attorney
for the adverse party.” 755 ILCS 5/27-5 (West 2010). Under this
provision, appointment of Shatayeva would have been improper even
if there were some basis for appointment of a special administrator,
for her selection was based entirely on the recommendation of the
attorney for plaintiff, who was clearly an adverse party.
¶ 55 It is true, of course, that Shatayeva’s appointment was not
predicated on the Probate Act. As noted earlier, we do not know what
it was based on because no statutory basis for the appointment was
stated in the motion seeking her appointment or in the order granting
it, and, in any case, none of the circumstances under which the
Probate Act authorizes appointment of a special administrator are
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present here. Even though the Probate Act is not directly controlling,
however, the soundness of the principles underlying the foregoing
provision is unassailable and further undermines the propriety of the
procedure followed in appointing Shatayeva.
¶ 56 Plaintiff asks us to excuse her failure to discover that an estate
had already been opened for Mr. Grand Pre on the grounds that her
attorney did make some effort to check the court records, and was
unsuccessful. Exactly what inquiries the attorney actually made,
however, are never described. They could not have been significant,
for, as counsel for Shatayeva points out, information regarding the
estate and the appointment of Grand Pre’s son as independent
administrator was readily available through the Cook County circuit
clerk’s office and online. In any case, the claim “I tried” is not
sufficient under the governing statute. While section 13-209 may
impose no duty of reasonable diligence to discover a defendant
tortfeasor’s death in the first instance, it clearly and unequivocally
requires reasonable diligence by a plaintiff after learning of the death,
including reasonable diligence in moving to file an amended
complaint substituting the personal representative as defendant (735
ILCS 5/13-209(c)(1) (West 2010)) and serving him or her with
process (735 ILCS 5/13-209(c)(2) (West 2010)). Implicit in both
those obligations is the duty to use reasonable diligence in identifying
the personal representative. Based on the scant record before us,
plaintiff’s efforts here fell short of that standard.
¶ 57 We note, moreover, that even if plaintiff’s delay in discovering
the existence of the estate were excusable, that still would not justify
her failure to then proceed as section 13-209(c) requires. Plaintiff had
ample opportunity to properly comply with that statute after learning
that an estate was already open, a petition for issuance of letters of
office had been filed, and an independent administrator had been
appointed and was already in place. Plaintiff’s failure to substitute the
correct party following Mr. Grand Pre’s death was brought to her
attention no later than March of 2011, when Shatayeva moved to
dismiss. Although the original limitations period on plaintiff’s claims
had expired the previous year, section 13-209(c)(4) (735 ILCS 5/13-
209(c)(4) (West 2010)) gave her up to two additional years beyond
the expiration date to proceed against the personal representative,
assuming the other requirements of section 13-209 were satisfied.
Nothing in the record before us indicates that requiring plaintiff to
substitute the existing personal representative for Shatayeva, the
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“special administrator,” would have disadvantaged plaintiff in any
way. She simply elected not to do so.
¶ 58 Now, unfortunately for plaintiff, it is too late. The extra two-year
window afforded by section 13-209(c)(4) has closed. To excuse
plaintiff’s failure to comply with the requirements of section 13-
209(c) and allow her to substitute the personal representative at this
point would require us to do something which we simply have no
authority to do: rewrite the Code of Civil Procedure to allow a
plaintiff to amend a pleading after the statute of limitations had run.
See Augustus v. Estate of Somers, 278 Ill. App. 3d 90, 99 (1996). It
is no answer to say that the issue here is simply a matter of procedure.
“[E]ven though procedural in nature, a statute of limitations, if
properly asserted by one entitled to its protection, is a bar to an action.
It is a legislatively determined deadline for commencing an action
against one who otherwise might be legally indebted to a plaintiff.
This court may not *** effectively eviscerate a valid statute of
limitations.” Vaughn v. Speaker, 126 Ill. 2d 150, 161 (1988).
¶ 59 CONCLUSION
¶ 60 For the foregoing reasons, we hold that plaintiff’s substitution of
her lawyer’s secretary as “special administrator” in place of Mr.
Grand Pre following expiration of the statute of limitations did not
operate to preserve her otherwise invalid cause of action against him.
Because an estate had already been opened for Mr. Grand Pre and
letters of office had issued to his executor, section 13-209(c) required
that plaintiff commence the action against the executor, as Mr. Grand
Pre’s “personal representative,” upon learning of Mr. Grand Pre’s
death. Plaintiff had ample time to exercise that option, but did not.
Her cause of action was therefore properly dismissed by the circuit
court, and the appellate court erred when it reversed and remanded for
further proceedings. Accordingly, the judgment of the appellate court
is reversed and the circuit court’s judgment dismissing plaintiff’s
cause of action is affirmed.
¶ 61 Appellate court judgment reversed.
¶ 62 Circuit court judgment affirmed.
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¶ 63 CHIEF JUSTICE KILBRIDE, dissenting:
¶ 64 While I agree with the majority’s conclusion that subsection (c)
of section 13-209 applies to this case, I respectfully dissent from the
majority opinion. I disagree with the majority’s conclusion that
plaintiff did not comply with subsection (c) of the applicable statute.
In fact, that was never an issue raised or argued in this case. Notably,
defendant conceded that plaintiff complied with the requirements of
section 13-209(c) of the Code of Civil Procedure (735 ILCS 5/13-
207(c) (West 2010)).
¶ 65 In reviewing a statute, our objective “is to ascertain and give
effect to the intent of the legislature.” Gaffney v. Board of Trustees of
the Orland Fire Protection District, 2012 IL 110012, ¶ 56. In doing
so, we must consider the plain and ordinary meaning of the language
of the statute. Gaffney, 2012 IL 110012, ¶ 56. “We will not depart
from the plain statutory language by reading into it exceptions,
limitations, or conditions that conflict with the expressed intent of the
legislature.” Gaffney, 2012 IL 110012, ¶ 56. Further, we will not
utilize extrinsic aids of statutory interpretation unless the statutory
language is unclear or ambiguous. Gaffney, 2012 IL 110012, ¶ 56.
¶ 66 Section 13-209 of the Code of Civil Procedure specifically
addresses the situation involving the death of a party. 735 ILCS 5/13-
209 (West 2010). Section 13-209 contains three subsections, (a), (b),
and (c). 735 ILCS 5/13-209 (West 2010). Subsection (a) addresses
when “a person entitled to bring an action dies.” 735 ILCS 5/13-
209(a) (West 2010). Subsection (a) is not applicable in this case.
¶ 67 Subsection (b) of section 13-209 provides, in relevant part:
“(b) If a person against whom an action may be brought
dies before the expiration of the time limited for the
commencement thereof, and the cause of action survives, and
is not otherwise barred:
(1) an action may be commenced against his or her
personal representative after the expiration of the time
limited for the commencement of the action, and within
6 months after the person’s death;
(2) if no petition has been filed for letters of office for
the deceased’s estate, the court, upon the motion of a
person entitled to bring an action and after the notice to
the party’s heirs or legatees as the court directs and
without opening an estate, may appoint a special
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representative for the deceased party for the purposes of
defending the action. If a party elects to have a special
representative appointed under this paragraph (2), the
recovery shall be limited to the proceeds of any liability
insurance protecting the estate and shall not bar the estate
from enforcing any claims that might have been available
to it as counterclaims.” 735 ILCS 5/13-209(b) (West
2010).
¶ 68 Defendant argued below, and in this court, that subsection (b) of
section 13-209 is applicable in this case because Mr. Grand Pre died
before the expiration of the statute of limitations. However, the
plaintiff did not learn of Mr. Grand Pre’s death until after she filed
her cause of action. Accordingly, I agree with the majority that “[t]he
provisions of section 13-209(b) presuppose that the plaintiff is aware
of the defendant’s death at the time he or she commences the action,”
and is, therefore, not applicable when the defendant’s death is
unknown to the plaintiff. Supra ¶ 27. I also agree with the majority
that subsection (c) of section 13-209 is applicable in this case.
¶ 69 Subsection (c) of section 13-209 provides:
“(c) If a party commences an action against a deceased
person whose death is unknown to the party before the
expiration of the time limited for the commencement thereof,
and the cause of action survives, and is not otherwise barred,
the action may be commenced against the deceased person’s
personal representative if all of the following terms and
conditions are met:
(1) After learning of the death, the party proceeds with
reasonable diligence to move the court for leave to file an
amended complaint, substituting the personal
representative as defendant.
(2) The party proceeds with reasonable diligence to
serve process upon the personal representative.
(3) If process is served more than 6 months after the
issuance of letters office, liability of the estate is limited
as to recovery to the extent the estate is protected by
liability insurance.
(4) In no event can a party commence an action under
this subsection (c) unless a personal representative is
appointed and an amended complaint is filed within 2
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years of the time limited for the commencement of the
original action.” (Emphases added.) 735 ILCS 5/13-
209(c) (West 2010).
¶ 70 Subsection (c) of section 13-209 specifically addresses situations
when a plaintiff is unaware, at the time of filing the action, that a
named defendant is dead. Section 13-209(c) allows a plaintiff to
proceed against a deceased person’s personal representative if the
plaintiff, at the time of the filing of the original complaint, did not
know about the deceased’s death. Subsection (c) makes no reference
to whether an estate is open or closed. Rather, the focus is on the
plaintiff’s knowledge.
¶ 71 I would hold that the circuit court erred in granting defendant’s
section 2-619 motion to dismiss because plaintiff properly proceeded
under section 13-209(c) of the Code. The plain language of
subsection (c) states “[i]f a party commences an action against a
deceased person whose death is unknown to the party before the
expiration of the time limited for the commencement thereof.”
(Emphases added.) 735 ILCS 5/13-209(c) (West 2010). In this case,
plaintiff did not know of decedent’s death until after she filed her
cause of action. This is not disputed by the majority.
¶ 72 While I agree with the majority’s conclusion that subsection (c)
of section 13-209 applies to this case, I believe the majority
misapplies subsection (c). Plaintiff alleged, and defendant does not
dispute, that she followed the requirements of section 13-209(c)(1)
through (4) of the Code once she learned of Mr. Grand Pre’s death.
735 ILCS 5/13-209(c)(1)-(4) (West 2010). Specifically, plaintiff was
unaware of decedent’s death when she commenced the action.
Plaintiff moved diligently to substitute a personal representative. She
moved diligently to serve a personal representative. The decedent and
his estate are protected by liability insurance. The personal
representative was served within two years of the time limited for
commencement of the action.
¶ 73 The majority determines that Shatayeva does not qualify as a
“personal representative” within the meaning of subsection (c), even
though it admits that “[t]he Code of Civil Procedure does not define
the term ‘personal representative’ for purposes of section 13-209.”
Clearly, plaintiff used reasonable diligence to have a personal
representative appointed and substituted for Mr. Grand Pre. Her
mistake in misnaming the personal representative as “special
representative” or “special administrator” should not result in a loss
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of her cause of action. Rather, now that plaintiff is aware an estate
was opened for Mr. Grand Pre, plaintiff should be allowed to
substitute the independent administrator of the estate for Shatayeva
as Mr. Grand Pre’s personal representative in this action. I would note
that the estate is not prejudiced by allowing plaintiff to proceed
because the liability of the estate is limited to the extent the estate is
protected by liability insurance.
¶ 74 It is clear that the legislature enacted section 13-209(c)
specifically to address situations when a plaintiff is unaware, at the
time of filing a cause of action, that a named defendant is deceased.
Accordingly, I would hold that plaintiff properly proceeded under
section 13-209(c) of the Code and the circuit court erred when it
granted defendant’s section 2-619 motion to dismiss. I would,
therefore, affirm the appellate court’s judgment.
¶ 75 For the foregoing reasons, I respectfully dissent.
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