The Illinois Appellate Court for the First District reversed and remanded a court decision from the Cook County Circuit Court. In this case, a car driven by Jamie Lichter was rear-ended by the vehicle driven by Donald Christopher on Feb. 27, 2016. On Jan. 19, 2018, Lichter filed a personal injury lawsuit against Christopher. However, Christopher had died in June 2017 and Lichter was not aware of his death. No Letters of Office were ever issued to or on his behalf, so in April 2018, Lichter moved to have the trial court appoint a special representative to defend her action on behalf of Christopher.
Kimberly Porter Carroll was appointed, who is an attorney for State Farm, Christopher’s insurer. Carroll entered an appearance as special representative on behalf of the deceased defendant.
In early March 2020, Porter Carroll moved to dismiss with prejudice, arguing that under Illinois Code of Civil Procedure section 13-209, Lichter was required to sue the personal representative of the estate, not the special representative. Now that it was past the two-year statute of limitations in which Lichter could file the lawsuit, it was argued that the case should be dismissed with prejudice.
Lichter argued that she had properly initiated the lawsuit and any error was a misnomer subject to cure. She argued further that she should be permitted to amend the complaint and relate it back, asserting that Porter Carroll had engaged in “gamesmanship” in sitting on her hands for two years before registering this objection and bringing the motion to dismiss. The circuit court granted the motion for dismissal. Lichter appealed.
The appellate court began by distinguishing between a “personal representative” appointed by a Letter of Office to administer an estate, and a “special representative” appointed for the purpose of defending the estate in a particular proceeding where there is no personal representative.
As the appointment of a special representative required that no personal representative exists, the terms are mutually exclusive.
Porter Carroll relied on precedent where a personal representative had already been appointed.
The Illinois Appellate Court held that in the case where the defendant was deceased and no estate had been opened, no Letters of Office had been issued, no personal representative named, a plaintiff is in compliance with Section 13-209 of the Code to move for appointment of the special representative and in continuing the lawsuit against the representative, as the requirement for it to be placed against a personal representative only applies where such a position exists.
Accordingly, the Illinois Appellate Court reversed the decision resulting in the dismissal of the case and remanded the case back to the trial court for further proceedings.
Jamie Lichter v. Kimberly Porter Carroll, 2022 Ill.App. (1st) 200828 (March 31, 2022).
Kreisman Law Offices has been handling probate litigation matters, rear-end automobile crash lawsuits, medical negligence cases, guardianship cases, and catastrophic injury lawsuits for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 45 years in and around Chicago, Cook County and its surrounding areas, including Wheaton, West Chicago, Westmont, Downers Grove, Orland Park, Alsip, Blue Island, Calumet City, Lynwood, Richton Park, University Park, Sauk Village, Mokena, Roselle, Wheeling, Inverness, Chicago (Portage Park, Albany Park, Edgewater, Lakeview, Park West, Sauganash, Edgebrook Woods, Norwood Park East, Bucktown, Chinatown, Little Italy, Back of the Yards, Gage Park, Chatham, Mount Greenwood), Evergreen Park, Calumet Park, Palos Hills and Bedford Park, Ill.
Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.
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