September 2010
Good Discussion of Statutory Construction and Determination of What a Public Entity Is: Bi-State Mass Transit System Is a "Local Public Entity", Under the Act's Provision for "All Other Local Governmental Bodies" and Under the Act's Provision for "Any Not-For-Profit Corporation" Organized to Conduct Public Business Under the Tort Immunity Act.
Hubble v. Bi-State Development Agency of the Illinois-Missouri Metropolitan District, No. 109137 (September 23, 2010) St. Clair Co. (FREEMAN) Appellate court reversed; remanded.
- Plaintiff filed suit in St. Clair County for injuries sustained in a collision in that county between Plaintiff's car and a bus which was operated by Bi-State mass transit system, an agency created by an interstate agreement made between the states of Illinois and Missouri. Suit was filed within two-year Illinois statute of limitations for personal injury actions, but not within the one-year statute of limitations required under the Tort Immunity Act. The Illinois Supreme Court held that Bi-State mass transit system is a "local public entity", under the Act's provision for "all other local governmental bodies" and under the Act's provision for "any not-for-profit corporation" organized to conduct public business. The Court noted that if the legislature had intended to exclude Bi-State from the Tort Immunity Act, it would have done so expressly, as it did with reference to entities subject to the Metropolitan Transit Authority Act. Thus, suit was untimely filed as the one-year statute of Tort Immunity Act applied. (FITZGERALD, THOMAS, KILBRIDE, GARMAN, KARMEIER, and BURKE, concurring.)
Jurisdiction / Motions / Pleadings
Party's Failure to Obtain Leave of Court to File Third Party Complaint after Original Leave of Court Expired, Did Not Render Filing a Nullity.
Cedzidlo v. Marriott International, No. 1-09-192 (September 20, 2010) Cook Co., 1st Div. (LAMPKIN) Reversed and remanded with directions.
- Plaintiff filed suit against hotel for injuries from his fall on cooking grease on a loading dock, while he was moving furniture. Court granted hotel leave to file third-party complaint against company it hired for grease trap pumping and used cooking oil removal services. Court improperly dismissed the third-party complaint which was filed after leave of court had expired but before the expiration of statute of limitations. Hotel's procedural failure to again obtain leave to file its third-party complaint did not deprive the court of jurisdiction and render the filing a nullity. Remanded for court to exercise its discretion to determine whether leave to file should be granted, given third-party defendant's timely objection to filing. (HOFFMAN and PATTI, concurring.)
Court Can Abuse Discretion in Being Too Lenient In Imposing Sanctions
In re Marriage of Daebel, No. 2-09-1248 (September 15, 2010) McHenry Co. (O'MALLEY) Vacated and remanded with directions.
- In this case, the trial court was held to have abused its discretion in imposing too
lenient a sanction for the Petitioner's discovery violations. All of the factors pertinent to imposition of sanctions under Supreme Court Rule 219 favored the Respondent: Respondent was highly prejudiced by Petitioner's surprising testimony, especially given her failure to appear at deposition and at prior court dates. The trial court improperly criticized Respondent for failing to request continuance on the date of trial when he learned that the petitioner would testify, as the court had stated at a sanctions hearing that it would have granted no continuances. The sanctions order was vacated with directions to the trial court to reconsider its decision without resort to Petitioner's testimony, or to conduct new hearing wherein the Petitioner's testimony would be barred.
Court's Granting of Plaintiffs' Motion to Reconsider Denial of Motion for Substitution of Judge Was Not a "Substantial Issue", Because the Ruling Was Procedural and Did Not Directly Relate To the Merits of the Case.
Powell v. Dean Foods Company, Nos. 1-08-2513 & 1-08-2554 Cons. (September 10, 2010) Cook Co., 6th Div. (McBRIDE) Reversed in part, vacated in part; remanded.
- In this wrongful death action, the Court's granting of Plaintiffs' Motion to Reconsider Denial of Motion for Substitution of Judge was not a "substantial issue", because the ruling was procedural and did not directly relate to the merits of the case. The ruling concerned only whether two named defendants were the same entity and thus entitled to only one Motion for Substitution of Judge as a matter of right. All Defendants have standing to challenge the denial of one Defendant's Motion, and all orders subsequent to the improper denial of said Motion are void as to all parties. (J. GORDON, concurring; ROBERT E. GORDON, dissenting.)
Motions / Venue / Jurisdiction / Medical Malpractice
Motion to Transfer from Cook County Based Upon Forum Non Conveniens Denied Where Negligence in DuPage But Defendant and Many Witnesses Resided in Cook
Shirley v. Kumar, No. 1-09-2680 (1st Dist., September 10, 2010) Cook Co., 6th Div. (R.E. GORDON) Affirmed.
- Plaintiff filed medical malpractice action in Cook County, on behalf of her mother, alleging failure to diagnose depression with psychosis by two physicians at hospital in DuPage County. Court denied Defendants' motion to transfer case to DuPage County under doctrine of forum non conveniens. Plaintiff attempted to commit suicide by jumping from her third-floor balcony, and incurred $489,076 in medical costs at Loyola Hospital (in Cook County) from September 2007 to March 2008. Plaintiff's representative lived in DuPage. Venue is proper in Cook County because Defendant internist resided in Cook County at the time he was served with process, more than 40 potential witnesses reside or work in Cook County, and public interest factors and private interest factors did not strongly favor transfer to DuPage County. (CAHILL and McBRIDE, concurring.)
Insurance
Where Policy Expired, Sufficiency of Cancellation Inapplicable
Yunker v. Farmers Automobile Management Corporation, Nos. 3-09-0417, 3-09-0521 cons. (3
rd Dist., September 10, 2010) Will Co. (O'BRIEN) Affirmed.
- Insureds filed declaratory judgment action for coverage for injuries sustained in auto accident while insured was a passenger in vehicle driven by another person, whose policy limits were exhausted. Court properly granted summary judgment for insurer, as policy had expired prior to the date of accident, and insured failed to pay renewal premium until nine days past the 20-day grace period. Coverage automatically terminated based upon non-payment of premium. Facts support expiration of policy rather than cancellation. Therefore, whether cancellation notice and extended renewal provisions of policy were ambiguous is inapplicable. (HOLDRIDGE and McDADE, concurring.)
Relation Back
/ Pleadings / Statute of Limitations / Medical Malpractice / Dismissal
Complaint Re-filed After the Statute of Limitations Expired, Consisting of All New Allegations, Which Did Not Grow Out of the Same Transaction as the Original Complaint, Was Properly Dismissed
Wilson v. Schaefer, No. 4-09-0034 (September 9, 2010) Champaign Co. (POPE) Affirmed. 4th Dist.
- Original complaint filed against orthopedic surgeon, alleging that he failed to provide adequate information so Plaintiff could make an informed decision whether to have right total hip arthroplasty surgery, was voluntarily dismissed. Within the one-year allowed for refiling, but after the statute of limitations had expired, Plaintiff refiled complaint, consisting of solely of counts that surgeon failed to determine etiology of sciatic nerve palsy and "drop foot" he developed in right foot after surgery, claiming negligence and res ipsa loquitor.
The trial court dismissed the refiled complaint because the statute of limitations had expired and the court determined that the allegations did not relate back to the original complaint. The Appellate Court affirmed and held that the refiled complaint was properly dismissed and that the later added counts were untimely.
The counts added in the refiled complaint were not merely an amplification of allegations of which Defendants were already aware, but were entirely different; they concerned how the surgeon performed the procedure and cared for the patient afterward, as compared to original counts which addressed what surgeon said prior to procedure. Thus, it was held that the new allegations did not grow out of the same transaction or occurrence alleged in the original complaint.
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