Illinois Appellate Court Answers Two Questions Related to Suing a Deceased Defendant

On May 11, 2018, Alyce L. Richards and Joshua T. Wilson were involved in a car crash. Richards was injured and Wilson died.

On May 6, 2020, Richards filed a lawsuit, five days before the statute of limitations expired, alleging that the crash was caused by Wilson’s negligence.

Richards was aware at the time of filing that Wilson was deceased, and he was named as the only defendant. On May 20, 2020, Richards moved to appoint a special administrator, and Kimberly Vaca was appointed. Vaca moved to dismiss pursuant to §2-619 of the Illinois Code of Civil Procedure, arguing that the lawsuit was not filed within the two-year period and thus was time barred.

Richards moved to vacate the Vaca appointment and to appoint another special representative, which Vaca opposed, allowing that §13-209(b)(2) of the Illinois Code of Civil Procedure did not permit appointment of a special representative once the statute of limitations period expired.

The trial court held that the May 6, 2020 complaint was a “legal nullity” since the only named defendant was a dead person. However, the trial court concluded that §13-209 of the Code, a plaintiff is entitled to the appointment of a special representative even after the limitation period has expired.

Vaca sought interlocutory review, and two questions were certified for review by the appellate court: Whether plaintiff had filed suit naming only a known deceased defendant may rely on 13-209(b)(2) for the appointment of a special representative after the statutory period has expired, and if so, whether the representative must be appointed within six months of the decedent’s death.

The appellate court, examining 13-209(b)(2), concluded that the statute was ambiguous, since “read literally, if no personal representative exists, a court has unlimited time to appoint a special representative, but the special representative may not be sued.” In addition, under 13-209(b)(2) suit may be commenced against the personal representative only within the statute of limitations or within six months of the decedent’s death. The appellate court found no justification for a disparate result for a personal representative versus an appointed special representative.

However, the appellate court concluded that §13-209(b)(2) is unambiguous if it is considered a “complimentary” to 13-209(b)(1). The subsection (b)(1) establishes the right to file suit against the personal representative if an estate is open and sets out the time limitation, while §(b)(2) allows the trial court to appoint a special representative in place of the personal representative.

Considering the two questions together, the appellate court found that the correct interpretation was that the limitations on timely filing of the lawsuit in 209(b)(1) applied to a personal representative appointed under subsection 209(b)(2). The appellate court found that a special representative may be appointed after the expiration of the applicable limitations period, but only if it is also within six months of the decedent’s death.

Accordingly, the appellate court answered both questions raised on this appeal in the affirmative and sent the case back to the trial court for further proceedings consistent with this decision.

Alyce L. Richards v. Kimberly Vaca, as special representative for Joshua T. Wilson, deceased, 2021 IL App (2d) 210270 (December 17, 2021).

Kreisman Law Offices has been handling car accident lawsuits, intersection crash lawsuits, Chicago highway accident cases, and truck accident 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 Elk Grove Village, Elmhurst, Lombard, Wheaton, Schaumburg, Hoffman Estates, Northfield, Cicero, Crestwood, Alsip, Tinley Park, Chicago Heights, Chicago (Roseland, Pullman, Hegewisch, East Side, Kenwood, Burnham Park, Bronzeville, Hyde Park, Wrigleyville, Englewood, Marquette Park, Westlawn, McKinley Park, Bridgeport, Humboldt Park), Oak Park, Maywood, Northlake, Schiller Park and Lincolnshire, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.