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Quarterly Review Newsletter Summer 2015: Illinois Statute of Limitations

Wrongful Death Suit Must Be Filed Within Two Years Of Death Rather Than Discovery Of Alleged Negligence

Plaintiff's 90-year-old mother died in the hospital on May 29, 2009. In 2013, plaintiff had an expert radiologist review a CT scan and concluded the defendant doctor failed to identify the breakdown of an anastomosis which led to her death. Shortly thereafter, plaintiff filed the malpractice action against the defendant who moved to dismiss the case based upon the two-year statute of limitations in the Wrongful Death Act. Plaintiff responded claiming the discovery rule should apply. The trial court disagreed and dismissed the case.

In a split decision the Third District affirmed. The Wrongful Death Act requires suit to be filed within two years from the date plaintiff knew or should have known of the existence of the injury or death for which damages are sought. The required knowledge is of the death or injury, not the negligent conduct. It was undisputed plaintiff immediately knew of his mother's death yet suit was not filed until four years later. Moon v. Rhode, 2015 IL App (3d) 130613.

Supplemental Complaint Is Time Barred When Leave Of Court Is Not Obtained Until After Limitation Has Expired Even Where Motion Seeking Leave Was Earlier Filed

In May, 2012, plaintiff filed a three-count complaint seeking money damages for uncompensated construction services performed for the defendants. On May 28, 2013, plaintiff filed a motion to amend the complaint alleging that on August 29, 2012, defendant published defamatory stories against plaintiff. On September 26, 2013, the trial court granted plaintiff's motion to file the supplemental complaint. The defendant moved to dismiss claiming the pleading was time barred because defamation has a one-year statute of limitations. The trial court denied the motion but certified the question for interlocutory appeal.

The Fourth District reversed holding the supplemental pleading was barred by the one-year limitation for defense. Supplemental pleadings may be filed within a reasonable time "by leave of court." Unless and until leave of court is granted, the supplemental pleading is not considered filed. Bentley v. Hefti, 2015 IL App (4th) 140167.

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