Keith Kreinik was injured in a motorcycle accident. The statute of limitations for his injuries would have run two years from the date of his accident, Sept. 2, 2007 to Sept. 2, 2009. In the meantime, on Aug. 29, 2009, Karen Kreinik was allowed guardianship of Keith and filed a lawsuit against Ali Hosseini and Magnum Motors, the company that Keith was working for at the time of his motorcycle accident.
It took more than 15 months for Karen to secure service on Hosseini, during which time Keith died. Kreinik finally obtained service on Nov. 22, 2010. Exactly a year later, the trial court granted Hosseini’s motion to quash service, stating that it was improper because the process server appointed by the court was not the one who actually served Hosseini.
On Dec. 1, 2011, Kreinik served Hosseini. On Jan. 3, 2012, Hosseini moved to dismiss the complaint with prejudice since Kreinik “failed to exercise reasonable diligence.”
Kreinik argued that because a guardian had to be appointed for Keith, the statute of limitations had to be extended. Keith was not legally able to file a lawsuit until Karen was appointed his guardian. Therefore, Illinois law provided that the start of the tolling for the statute of limitations would not begin until Aug. 24, 2009 when Kreinik was made guardian.
Hosseini argued that even if Kreinik was correct, the statute of limitations would have ended on Aug. 24, 2011. Kreinik able to obtain service on the defendants on Dec. 1, 2011.
Kreinik answered that she had exercised great diligence. The sheriff had attempted to serve summons on Sept. 13, 2009 but returned without making contact. The attorney for Kreinik sent alias summons to Hosseini’s listed address on June 30, 2010, but it was not returned.
On Nov, 9, 2010, Kreinik’s counsel prepared and submitted an alias summons to be served at the courthouse. It was served on Nov. 22, 2010.
On the defendant’s motion, the trial court dismissed the case with prejudice, finding the service of summons untimely and outside the statute of limitations. The trial judge also found that Kreinik had lacked reasonable diligence in serving Hosseini.
Kreinik moved to reconsider, arguing that any lack of diligence occurred within the statute of limitations and so it should not be held against her as she was reasonably diligent once the statute had expired. Kreinik also accused Hosseini of “gamesmanship” for waiting an entire year until the statute of limitations had run before getting the service quashed.
Even still, the trial judge dismissed Kreinik’s case; she appealed.
The appellate court was more sympathetic citing language in Illinois precedent that found that the failure to exercise reasonable diligence prior to the expiration of the statute of limitations was grounds for dismissal without prejudice. Only failure to exercise reasonable diligence after the statute of limitations expired will be grounds for dismissal with prejudice. The issue then remained, when did the statute of limitations expire?
Kreinik argued that the statute expired on Jan.2, 2012, two years after the death of Keith. Hosseini argued that it expired on Sept. 2, 2009 contesting Kreinik’s claims of Keith’s disability. The appellate court agreed that the statute of limitations expired on Aug. 24, 2011; two years after Kreinik became the legal guardian. This was the same decision that the trial judge made. However, the appellate court found that Kreinik’s behavior after Aug. 24, 2011 demonstrated reasonable diligence. In fact, once the service of summons was quashed, Kreinik acted swiftly and Hosseini was served again in just over a week. The appellate court found that that conduct was reasonable diligence and that the trial judge erred in considering the delays that took place before Aug. 24, 2011.
Accordingly, the appellate court reversed and remanded the case back to the trial court for further disposition.
Karen Kreinik v. Ali Hosseini, et al., 2013 IL App (1st) 122804-U.
Kreisman Law Offices has been successfully handling motorcycle accidents for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Chicago (Andersonville, Belmont Harbor, Beverly, Bucktown, Garfield Ridge, Hyde Park, Jackson Park, Norwood Park, Old Town, Ravenswood, River North, Sauganash, Streeterville, University Village, Wrigleyville), Algonquin, Batavia, Burbank, Des Plaines, Elgin, Aurora, Geneva, Hinsdale, Itasca, LaGrange Park and Lombard, Ill.
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