{ "id": 5149734, "name": "JOSEPHINE SOMPOLSKI, As Independent Ex'r of the Estate of Luca Mele, Deceased, Plaintiff-Appellant, v. HENRY MILLER, Defendant-Appellee", "name_abbreviation": "Sompolski v. Miller", "decision_date": "1992-12-03", "docket_number": "No. 1-91-4098", "first_page": "1087", "last_page": "1094", "citations": [ { "type": "official", "cite": "239 Ill. App. 3d 1087" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "512 N.E.2d 1080", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "159 Ill. App. 3d 743", "category": "reporters:state", "reporter": "Ill. 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Rptr.", "year": 1974, "opinion_index": 0 }, { "cite": "142 Cal. App. 3d 375", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2107696 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/cal-app-3d/142/0375-01" ] }, { "cite": "458 N.E.2d 530", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 409", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3594536 ], "pin_cites": [ { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0409-01" ] }, { "cite": "182 N.E.2d 910", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill. App. 2d 333", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2542039 ], "year": 1988, "pin_cites": [ { "page": "436" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/209/0432-01" ] } ], "analysis": { "cardinality": 714, "char_count": 15719, "ocr_confidence": 0.757, "pagerank": { "raw": 2.062934937539873e-07, "percentile": 0.7567943150353553 }, "sha256": "d98f806de423073e995eaa972d0d4c576edbc4ff580dbb54b927ff9e070b73b8", "simhash": "1:65b675cd8daf84d5", "word_count": 2499 }, "last_updated": "2023-07-14T16:51:04.850958+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JOHNSON and LINN, JJ., concur." ], "parties": [ "JOSEPHINE SOMPOLSKI, As Independent Ex\u2019r of the Estate of Luca Mele, Deceased, Plaintiff-Appellant, v. HENRY MILLER, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE McMORROW\ndelivered the opinion of the court:\nPlaintiff Josephine Sompolski (plaintiff) appeals from the trial court\u2019s dismissal of her wrongful death claim against defendant Henry Miller (defendant). Plaintiff filed the wrongful death claim as the second count in a pleading that sought to amend a single-count personal injury suit previously filed by plaintiff\u2019s father, Lucas Mele (Mele), who died after the personal injury claim had been filed. We conclude that plaintiff\u2019s wrongful death suit related back to the original personal injury claim filed by Mele, and that the wrongful death suit was therefore not barred by the two-year statute of limitations. Accordingly, we reverse and remand.\nThe record reveals the following. On April 9, 1986, Mele filed suit against defendant for personal injuries Mele allegedly sustained when he was struck by a vehicle operated by defendant. Mele alleged in his complaint that he was \u201cseverely and permanently injured\u201d as a result of the accident, which had occurred on December 10, 1985.\nAfter defendant filed an appearance and answer, the parties proceeded to discovery. In March 1988, plaintiff\u2019s counsel filed plaintiff\u2019s response to defendant\u2019s written interrogatories. In this response, plaintiff\u2019s attorney stated that plaintiff\u2019s head, legs, arms and torso were injured from the accident. Plaintiff\u2019s counsel also stated that plaintiff \u201cis not mentally alert\u201d and \u201ccannot walk, eat or talk.\u201d Plaintiff\u2019s attorney further stated that plaintiffs\u2019 legs were \u201cnot functioning because of broken bones,\u201d and that plaintiff had sustained \u201closs of mobility\u201d to his left arm and hand, because of the accident. With respect to further details regarding the nature of the plaintiff\u2019s injuries and the medical treatments plaintiff had received therefor, plaintiff\u2019s counsel referred defendant to \u201cmedical records previously subpoenaed.\u201d\nOn November 14, 1988, Mele died. Seven months later, on May 25, 1989, plaintiff filed a motion to substitute herself for Mele, and to appear in a representative capacity for him, in the personal injury suit filed against defendant. Plaintiff also filed Mele\u2019s will in the probate division of the circuit court of Cook County on May 24, 1989. Plaintiff\u2019s motion to be named as Mele\u2019s representative in the personal injury claim was allowed by the trial court in an order entered June 20, 1989. In June 1991, plaintiff\u2019s counsel filed answers to defendant\u2019s supplemental written interrogatories. With respect to the nature of the plaintiff\u2019s injuries, the response indicated there was \u201c[n]o new information.\u201d\nOn September 27, 1991, more than two years following Mele\u2019s death, plaintiff filed an amended complaint that included an additional count for damages relating to Mele\u2019s wrongful death. This count alleged that Mele was \u201cseverely and permanently injured\u201d by the December 10, 1985, automobile accident, which \u201ccaused his death on November 14, 1988.\u201d Plaintiff was granted leave to file this amended complaint instanter.\nOn October 10, 1991, plaintiff filed a motion to continue the date of trial, which had been set for October 21, 1991. In the motion, plaintiff stated that \u201c[o]n information and belief, defendant HENRY MILLER, died several years past and his death has never been spread of record nor his estate substituted as a party defendant.\u201d Plaintiff stated that \u201c[i]n light of this development, plaintiffs are unable to proceed to trial at this time and respectfully request this Court continue this matter to a date certain.\u201d Based upon plaintiff\u2019s motion, the court vacated the scheduled trial date and continued the matter for status hearing on December 6,1991.\nOn October 11, 1991, in response to plaintiff\u2019s amended complaint, defendant\u2019s counsel filed a motion to dismiss the wrongful death claim with prejudice. (Ill. Rev. Stat. 1991, ch. 110, par. 2-619(a)(9).) Defendant\u2019s attorney argued that the claim should be dismissed because it had been filed more than two years after Mele\u2019s death and was therefore barred by the statute of limitations. (Ill. Rev. Stat. 1989, ch. 70, par. 2 (wrongful death claim must be filed within two years following death).) Following briefing and argument, the trial court allowed the motion and dismissed plaintiff\u2019s wrongful death claim with prejudice. The trial court also allowed the motion of defendant\u2019s attorney that the death of Henry Miller be suggested of record. This appeal followed.\nPlaintiff argues that her wrongful death claim was not barred by the two-year statute of limitations, because this claim related back to the previously filed personal injury suit, which had been timely filed. To support this argument, plaintiff relies upon section 2 -616(b) of the Code of Civil Procedure. Under section 2-616(b), a cause of action alleged in an amended complaint filed after the expiration of the limitations period will relate back to the filing of the original complaint, if the original pleading was timely filed, and if the cause of action in the amended complaint \u201cgrew out of the same transaction or occurrence set up in the original pleading.\u201d Ill. Rev. Stat. 1991, ch. 110, par. 2-616(b).\nThe purpose of section 2-616(b) is \u201cto insure fairness to the litigants rather than unduly enhance the technical considerations of common-law pleadings. [Citation.]\u201d (Albany Park Service, Inc. v. Kenny-Pashen Joint Venture (1991), 209 Ill. App. 3d 432, 436, 568 N.E.2d 230; United Parcel Service v. Church\u2019s Fried Chicken, Inc. (1988), 174 Ill. App. 3d 378, 380, 528 N.E.2d 367.) To further this purpose, the court should liberally construe the requirements of section 2-616(b) in favor of hearing plaintiff\u2019s claim. Williams v. Board of Education (1991), 222 Ill. App. 3d 559, 565, 584 N.E.2d 257.\nThe right to amend does not depend on whether the cause of action set out in the amendment is substantially the same as that stated in the original pleading, but depends on whether the amendment relates back to the occurrence set out in the original pleading. (Zeh v. Wheeler (1986), 111 Ill. 2d 266, 272-73, 489 N.E.2d 1342; Krieger v. Village of Carpentersville (1972), 8 Ill. App. 3d 243, 246, 289 N.E.2d 481.) As long as the defendant has been apprised of the essential information necessary to prepare a defense, an amended complaint will be deemed to relate back to the original pleading (Weidner v. Carle Foundation Hospital (1987), 159 Ill. App. 3d 710, 712, 512 N.E.2d 824), and a defendant is not prejudiced by allowance of an amendment \u201cso long as his attention was directed, within the time prescribed or limited, to the facts that form the basis of the claim asserted against him.\u201d (Simmons v. Hendricks (1965), 32 Ill. 2d 489, 495, 207 N.E.2d 440.) In addition, the liberal provisions of section 2-616(b) apply regardless of whether the claims at issue are governed by a statute of limitations or a prescription that limits the right to bring suit. Simmons, 32 Ill. 2d at 494.\nWith respect to whether the amended pleading arose from the \u201csame transaction or occurrence\u201d as that set out in the original complaint, the Illinois Supreme Court has observed that \u201c \u2018[i]nstead of splitting hairs over types of faults, the [proper] inquiry is whether there is enough in the original description to indicate that plaintiff is not attempting to slip in an entirely distinct claim in violation of the spirit of the limitations act.\u2019 \u201d (Simmons, 32 Ill. 2d at 497, quoting McCaskill, Illinois Civil Practice Act Annotated 126-27 (1936).) The court has directed that the \u201c \u2018test is to be a real one, rather than one based upon artificial rules of pleading\u2019 \u201d and that \u201c \u2018[i]dentity of true claim, which lies behind the descriptions, is the test.\u2019 \u201d Simmons, 32 Ill. 2d at 497, quoting McCaskill, Illinois Civil Practice Act Annotated 126-27 (1936).\nThe record in the instant cause indicates that Mele\u2019s original personal injury suit was timely filed. The record shows that Mele alleged in his original pleading that he was injured by an automobile operated by defendant on December 10, 1985. Mele\u2019s complaint was filed only months after the accident, in April 1986. The record also establishes that the additional wrongful death claim filed by plaintiff arose from the same transaction or occurrence as that at issue in Mele\u2019s original complaint, i.e., the December 1985 automobile accident.\nMoreover, the record reveals that the defendant was advised of the essential facts necessary to prepare his defense. Mele\u2019s original complaint alleged that he had been severely injured in the accident. The initial response to defendant\u2019s written interrogatories provided defendant with details of Mele\u2019s medical condition, including the circumstance that Mele was not mentally alert and could not walk, eat, or talk. Defendant was timely informed that Mele had died, and plaintiff was properly granted leave to substitute herself for Mele less than two years after his death.\nIn light of these considerations, plaintiff\u2019s wrongful death suit was not an attempt to \u201cslip in an entirely distinct claim,\u201d but was instead an effort to recover full damages for the injuries Mele sustained as a result of the defendant\u2019s alleged negligence in the December 1985 automobile accident. Consequently, plaintiff\u2019s wrongful death claim related back to Mele\u2019s original personal injury suit.\nDefendant\u2019s attorney argues that plaintiff\u2019s wrongful death suit was a new cause of action alleging a new fact, i.e., Mele\u2019s death, not stated in the original personal injury claim. Defendant\u2019s counsel contends that because of the additional fact of Mele\u2019s death, the original personal injury suit and the subsequent wrongful death claim do not arise \u201cfrom the same transaction or occurrence.\u201d We disagree.\nThe case at bar is substantially similar to Cain v. New York Central R.R. Co. (1962), 35 Ill. App. 2d 333, 182 N.E.2d 910. In Cain, the plaintiff husband originally filed a wrongful death claim alleging that the defendant\u2019s negligence had proximately caused his wife\u2019s death. After the statute of limitations had expired, the plaintiff attempted to amend his pleading to include a survival action recovering damages for the decedent\u2019s injuries before her death. The court held that the plaintiff\u2019s survival claim related back to the date that the original wrongful death suit had been filed. The court rejected the defendant\u2019s argument that relation back was not proper because a cause of action for wrongful death is separate and distinct from an action for personal injuries. In so ruling, the court observed that \u201cboth counts are based on the same occurrence and the negligence charged in both counts is identical.\u201d 35 Ill. App. 2d at 338-39; see also Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App. 3d 409, 418, 458 N.E.2d 530 (plaintiff should have been permitted to refile original wrongful death claim and to add survival action that related back to date wrongful death suit originally filed).\nThe court\u2019s reasoning in Cain is equally applicable to the case at bar. Both plaintiff\u2019s wrongful death suit and her survival action are based on the same occurrence, i.e., the December 1985 accident. In addition, both claims sound in negligence and make the same allegations respecting defendant\u2019s alleged liability for Mele\u2019s injuries. Based upon this precedent, plaintiff\u2019s amended complaint, seeking damages for wrongful death, related back to the original pleading that sought damages for personal injuries. See also Lamont v. Wolfe (1983), 142 Cal. App. 3d 375, 190 Cal. Rptr. 874; Caffaro v. Trayna (1974), 35 N.Y.2d 245, 360 N.Y.S.2d 847, 319 N.E.2d 174 (plaintiff\u2019s amended complaint alleging wrongful death claim related back to original pleading for personal injuries); see generally Annot., Right to Amend Pending Personal Injury Action by Including Action for Wrongful Death after Statute of Limitations Has Run against Independent Death Action, 71 A.L.R.3d 933 (1976).\nThe Illinois decisions upon which defendant\u2019s attorney relies are factually distinguishable from the case at bar, as in each the plaintiff\u2019s amended pleading attempted to add a new party and to include a new cause of action for that new party\u2019s recovery. (Janetis v. Christensen (1990), 200 Ill. App. 3d 581, 558 N.E.2d 304 (wife\u2019s suit for family expenses time-barred and did not relate back to date husband filed his original personal injury complaint, because family expense claim was new cause of action by new party); McGinnis v. A.R. Abrams, Inc. (1986), 141 Ill. App. 3d 417, 490 N.E.2d 115 (plaintiff\u2019s spouse\u2019s suit for loss of consortium did not relate back to plaintiff\u2019s suit for personal injuries).) These circumstances are not presented in the instant cause. The plaintiff\u2019s amended pleading does not seek to add a \u201cnew party\u201d to the suit, since plaintiff had been properly allowed to substitute herself for Mele upon the latter\u2019s death. See Ill. Rev. Stat. 1991, ch. 110, par. 2-1008 (substitution of parties); Marcus v. Art Nissen & Son, Inc. (1991), 224 Ill. App. 3d 464, 586 N.E.2d 694.\nDefendant also relies upon an unreported Federal district court decision that declined to allow a plaintiff\u2019s amended complaint for wrongful death to relate back to the previously filed personal injury suit. (Murray v. Manville Corp. (N.D. Ill. Oct. 4, 1990), No. 87-C-5545 (memorandum opinion affirmed on rehearing December 21, 1990).) We note that the Federal district court\u2019s decision is not binding on this court (see, e.g., People v. Fields (1990), 135 Ill. 2d 18, 72, 552 N.E.2d 791), and we decline to adopt that decision of the Federal district court herein.\nDefendant\u2019s attorney also appears to argue that relation back would be inequitable under the facts of this case, since the cause was set for trial only a few weeks before plaintiff filed her amended complaint. We note, however, that the cause was not rescheduled for trial because of plaintiff\u2019s filing of an amended complaint. According to the record, the scheduled trial date was continued because defendant\u2019s counsel had failed to alert the court, or spread of record, the circumstance that defendant had died long before plaintiff filed her amended complaint. We express no opinion with respect to whether this cause could or should proceed absent substitution of a personal representative on behalf of the deceased defendant (see Ill. Rev. Stat. 1991, ch. 110, par. 2-1008 (requiring substitution upon death of party)), and we note our amazement that defendant\u2019s counsel chose to file a motion to dismiss plaintiff\u2019s amended complaint on defendant\u2019s behalf, even though the defendant was deceased at the time the motion was filed. (See, e.g., In re Marriage of Fredricksen (1987), 159 Ill. App. 3d 743, 745, 512 N.E.2d 1080 (attorney-client relationship terminates upon client\u2019s death and counsel\u2019s subsequent authority to represent deceased client\u2019s interest \u201cmust come from the personal representatives of the decedent\u201d).) Under the circumstances before us, we find defense counsel\u2019s argument in this respect inadequate basis to conclude that plaintiff\u2019s wrongful death claim did not relate back to Mele\u2019s timely filed personal injury suit.\nFor the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause remanded for further proceedings consistent herewith.\nReversed and remanded.\nJOHNSON and LINN, JJ., concur.", "type": "majority", "author": "JUSTICE McMORROW" } ], "attorneys": [ "R. Mark Maritote, of Robert Schey & Associates, of Chicago, for appellant.", "Daniel F. Konicek, of Connelly, Mustes & Schroeder, of Geneva, for appellee." ], "corrections": "", "head_matter": "JOSEPHINE SOMPOLSKI, As Independent Ex\u2019r of the Estate of Luca Mele, Deceased, Plaintiff-Appellant, v. HENRY MILLER, Defendant-Appellee.\nFirst District (4th Division)\nNo. 1-91-4098\nOpinion filed December 3, 1992.\nR. Mark Maritote, of Robert Schey & Associates, of Chicago, for appellant.\nDaniel F. Konicek, of Connelly, Mustes & Schroeder, of Geneva, for appellee." }, "file_name": "1087-01", "first_page_order": 1107, "last_page_order": 1114 }