Mickiewicz v. Generations at Regency, LLC

2019 IL App (1st) 181771-U

• Court: Appellate Court of Illinois
• Decided: November 27, 2019
• Docket: 1-18-1771
• Status: Unpublished

Opinion

2019 IL App (1st) 181771-U No. 1-18-1771 Third Division November 27, 2019

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

RADOSLAW MICKIEWICZ, as Independent ) Appeal from the Administrator of the Estate of BARBARA ) Circuit Court of MICKIEWICZ, Deceased, ) Cook County. ) Plaintiff-Appellant, ) No. 18 L1 726 ) v. ) Honorable ) Daniel T. Gillespie, GENERATIONS AT REGENCY, LLC, an ) Judge, presiding. Illinois Limited Liability Corporation d/b/a ) GENERATIONS AT REGENCY, ) GLENBRIDGE NURSING AND ) REHABILITATION CENTRE, LTD., an ) Illinois Corporation d/b/a GLENBRIDGE ) NURSING AND REHABILITATION ) CENTER, ) ) Defendants (Glenbridge Nursing and ) Rehabilitation Centre, Ltd., Defendant- ) Appellee). ) ______________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court. Presiding Justice Ellis and Justice Howse concurred in the judgment.

ORDER No. 1-18-1771

¶1 Held: The trial court’s order granting defendant’s motion to dismiss is reversed where plaintiff’s claims were not time-barred by the statute of limitations.

¶2 This appeal arises from an order dismissing claims against defendant, Glenbridge

Nursing and Rehabilitation Centre, Ltd. (Glenbridge), in a personal injury action brought by

Radoslaw Mickiewicz, as the representative and independent administrator of the estate of

Barbara Mickiewicz, the decedent. The trial court dismissed plaintiff’s claims against

Glenbridge, finding that they were untimely pursuant to section 13-209 of the Illinois Code

of Civil Procedure (Code), 735 ILCS 5/13-209 (West 2018), and Giles v. Parks, 2018 IL App

(1st) 163152. On appeal, plaintiff argues that Barbara’s survival claims against Glenbridge

should be reinstated because another panel of this court in Giles misconstrued the applicable

statutory provisions and wrongly concluded that the claims were time-barred by the statute of

limitations. For the reasons stated, we reverse and remand for further proceedings.

¶3 I. BACKGROUND

¶4 From April 17, 2013 to February 17, 2016, Barbara was a resident of Glenbridge.

Throughout that time, Barbara suffered from dementia and was considered legally disabled,

though she was never formally adjudicated as such. During her residency, Barbara suffered

several falls, the last of which occurred on January 27, 2016 and resulted in a visit to the

emergency room. Additionally, Barbara had suffered severe burns as a result of a nurse

spilling hot coffee on November 26, 2015. Barbara died on April 18, 2016.

¶5 On February 16, 2018, plaintiff filed a five-count complaint against Glenbridge and

another nursing home where Barbara resided before her death. The only relevant counts to

this appeal are Counts IV and V. Count IV asserted a statutory claim under the Nursing

Home Care Act and Count V asserted a common law medical negligence claim. Both counts

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relate to the personal injuries Barbara sustained from the coffee spill incident on November

26, 2015 and the fall on January 27, 2016.

¶6 On May 1, 2018, Glenbridge filed a motion to dismiss pursuant to section 2-619 of the

Code (735 ILCS 5/2-619(a)(5) (West 2018)), alleging that both incidents occurred more than

two years before plaintiff filed his complaint and were outside of the statute of limitations.

On July 15, 2018, following arguments, the trial court granted Glenbridge’s motion based on

Giles v. Parks, 2018 IL App (1st) 163152. This appeal followed.

¶7 II. ANALYSIS

¶8 Plaintiff argues that Giles incorrectly construed and applied the statutory provisions

involved here and requests that this court decline to follow that decision. Plaintiff claims that

Giles’ interpretation deprives legally disabled individuals who do not regain competency

prior to death of bringing survival claims through their estate administrator. Glenbridge, on

the other hand, contends that plaintiff has failed to establish any reasonable justification for

this court to depart from Giles.

¶9 After the parties filed their briefs, a different panel of this court issued its decision in

Zayed v. Clark Manor Convalescent Center, Inc., 2019 IL App (1st) 181552, pet. for leave to

appeal pending, No. 125407 (filed Oct. 28, 2019), another case with substantially similar

facts to those here and in Giles. The Zayed panel reversed the trial court’s dismissal, finding

that Giles’ interpretation of the pertinent statutory provisions was incorrect and that the

deceased’s representative properly filed the action within two years of the date of death. We

agree with the Zayed panel and with plaintiff, and we decline to follow the statutory

interpretation pronounced in Giles for the following reasons. See O’Casek v. Children’s

Home & Aid Society of Illinois, 229 Ill. 2d 421, 440 (2008) (“[T]he opinion of one district,

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division, or panel of the appellate court is not binding on other districts, divisions, or

panels.”).

¶ 10 A motion to dismiss filed pursuant to section 2-619 of the Code is based on certain

defects or defenses, including “[t]hat the action was not commenced within the time limited

by law.” 735 ILCS 5/2-619(a)(5) (West 2018). A trial court should grant a motion to dismiss

pursuant to section 2-619 where “a plaintiff’s claim can be defeated as a matter of law or on

the basis of easily proven issues of fact.” Gadson v. Among Friends Adult Day Care, Inc.,

2015 IL App (1st) 141967, ¶ 14. The standard of review for a trial court’s ruling on a motion

to dismiss is de novo. Id.

¶ 11 Plaintiff’s claims arise from two incidents alleged to have caused injury to Barbara, the

first was a coffee spill and the second was a fall. Under section 13-202 of the Code,

“[a]ctions for damages for an injury to the person *** shall be commenced within 2 years

after the cause of action accrued.” 735 ILCS 5/13-202 (West 2018). Illinois courts have

“repeatedly held that where the plaintiff’s injury is caused by a ‘sudden traumatic event,’ ***

the cause of action accrues, and the statute of limitations begins to run, on the date the injury

occurs.” Golla v. General Motors Corp., 167 Ill. 2d 353, 362 (1995). Here, there is no

dispute that Barbara’s injuries were caused by sudden traumatic events on November 26,

2015 and January 27, 2016, respectively, and thus, the statute of limitations would run on

November 26, 2017 and January 27, 2018. Plaintiff instituted this action for those claims

after those dates, on February 18, 2018.

¶ 12 However, plaintiff alleges that section 13-211 of the Code operates to toll the applicable

statute of limitations. Section 13-211 provides that “[i]f the person entitled to bring an action,

specified in Section 13-201 through 13-210 of this Act, at the time the cause of action

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accrued, is under the age of 18 years, or is under a legal disability, then he or she may bring

the action within 2 years after the person attains the age of 18 years, or the disability is

removed.” 735 ILCS 5/13-211(a) (West 2018). We note that Barbara “need not be

adjudicated disabled to have a legal disability.” Parks v. Kownacki, 193 Ill. 2d 164, 178

(2000). It is only necessary for the record to “contain sufficient allegations of fact” to prove

legal disability. In re Doe, 301 Ill. App. 3d 123, 127 (1998). The parties do not dispute that

Barbara was legally disabled at the time of injury and the disability was not removed prior to

her death on April 18, 2016.

¶ 13 In addition to section 13-211, plaintiff relies on section 13-209 to raise these claims on

Barbara’s behalf. Section 13-209 applies where “a person entitled to bring an action dies

before the expiration of the time limited for the commencement thereof, and the cause of

action survives[.]” 735 ILCS 5/13-209(a) (West 2018). Under such circumstances, “an action

may be commenced by his or her representative before the expiration of that time, or within

one year from his or her death whichever date is the later[.]” Id. 5/13-209(a)(1). Plaintiff

argues that these statutes act in conjunction to extend the time for filing until April 18, 2018.

¶ 14 Glenbridge hinges its argument wholly upon this court’s analysis of these same statutory

provisions in Giles. In Giles, the deceased was in a vehicle accident that rendered him

incapacitated, or legally disabled, until his death a day after the accident, and the plaintiff, as

an administrator, filed a personal injury action two years from the date of death, as opposed

to two years from the date of the accident. 2018 IL App (1st) 163152, ¶¶ 3-4. A panel of this

court ultimately determined that the statute of limitations was not tolled and began to run on

the date of the accident and thus, held that the claim was properly dismissed as time-barred.

Id. ¶ 20. The court stated that the tolling exception for disabled individuals in section 13-211

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is “necessary to protect that person’s interests and preserve his day in court until he is able to

bring suit on his own behalf.” (Emphasis in original.) Id. ¶ 16. Thus, the panel held that the

tolling exception was limited to only the disabled individual and not applicable to their

representative who sought to bring the same claim following the disabled individual’s death.

Id. ¶¶ 15-18. Notably, the panel considered applying section 13-211 and 13-209, in

conjunction with one another as an impermissible “tacking” of exceptions. We reject Giles’

and Glenbridge’s interpretation of these provisions.

¶ 15 As stated above, the Zayed panel also disagreed with Giles for similar reasons. The facts

in Zayed are nearly identical those involved herein. There, the deceased, Said, became a

resident of a nursing home at age 62 and he was under a legal disability due to dementia,

Parkinson’s Disease, and Alzheimer’s disease throughout his time there and until his death.

Zayed, 2019 IL App (1st) 181552, ¶ 5. On March 4, 2014, he fell and suffered various

injuries that contributed to his death on September 25, 2015. Id. The plaintiff filed suit on

July 10, 2017, more than three years after the fall but less than two years after Said’s death.

Id. ¶ 6. The nursing home filed a motion to dismiss based on the statute of limitations and the

trial court granted the motion. Id. ¶ 7. The panel rejected Giles and found that the tolling

provision under section 13-211 could be asserted by the deceased’s personal representative in

a suit filed under section 13-209. Id. ¶¶ 19-21, 26-30. The court ultimately reversed the trial

court’s ruling after determining that the statutory provisions were not in conflict with one

another and the deceased’s representative had two years from the date of death to file the

lawsuit. Id. ¶ 30. We come to the same conclusion below.

¶ 16 Like Giles and Zayed, this case involves statutory construction, and the fundamental aim

of statutory construction is “to ascertain and give effect to the intent of the legislature.” Bruso

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by Bruso v. Alexian Bros. Hosp., 178 Ill. 2d 445, 451 (1997). The intent of the legislature is

best discerned from the language of the provision itself. Id. The language must be evaluated

as a whole with due consideration to each connecting part or section. Id. at 451-52. “Where

the legislature’s intent can be ascertained from the plain language of the statute, that intent

must prevail and will be given effect without resort to other aids for construction.” Id. at 452.

Finally, we cannot depart from the “plain language by reading into a statute exceptions,

limitations, or conditions which conflict with the clearly expressed legislative intent.” County

of Knox ex rel. Masterson v. Highlands, LLC, 188 Ill. 2d 546, 556 (1999).

¶ 17 We agree with the panel in Giles that section 13-211 does not contain language providing

for an action brought by a legal representative such as the administrator of a decedent’s

estate. However, we diverge from the panel in Giles and find that the apparently limiting

language is irrelevant here because the controlling provision is section 13-209. Section 13-

209 specifically allows for an individual’s cause of action to be brought by a legal

representative, namely the estate administrator. Thus, we begin by examining section 13-209.

¶ 18 Section 13-209 starts with stating “a person entitled to bring an action.” 735 ILCS 13-

209(a) (West 2018). Here, that person is Barbara, who was legally disabled prior to the

incidents and continued to be legally disabled until her death. The action which she was

entitled to bring is a personal injury action for the incidents that occurred on November 26,

2015 and January 27, 2016.

¶ 19 Next, the provision states: “dies before the expiration of the time limited for the

commencement thereof, and the cause of action survives.” 735 ILCS 13-209(a) (West 2018).

As stated above, the incidents constitute personal injuries that were caused by sudden and

traumatic events, subjecting them to the two-year statute of limitations contained in section

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13-202. However, because Barbara was legally disabled at the time the injuries occurred and

until her death, in accordance with section 13-211(a), the statute of limitations was tolled

until her disability was removed. Therefore, when Barbara died on April 18, 2016, her time

to file the action had not expired because the statute of limitations had not yet begun to run

on her claims and the claims survived her death.

¶ 20 The next part of the provision states: “an action may be commenced by his or her

representative before the expiration of that time, or within one year from his or her death

whichever date is the later[.]” 735 ILCS 13-209(a)(1) (West 2018). As stated, Barbara’s

cause of action had accrued to her and the time to bring such action had not expired due to

her ongoing disability. There is no dispute here that the Barbara’s death ended her disability.

See Zayed, 2019 IL App (1st) 181552, ¶ 14; Giles, 2018 IL App (1st) 163152, ¶ 14. Thus, the

attendant tolling due to her disability would terminate upon her death and the statute of

limitations would begin to run. Under the plain language of section 13-209(a)(1), Barbara’s

representative would then be afforded two years from her death, the same time allotted to

Barbara had she survived and her disability been removed, to commence an action.

¶ 21 Although section 13-211 must be referenced to determine the “expiration of the time

limited for the commencement thereof” in section 13-209, section 13-211 does not determine

whether the administrator raised the complaint in a timely manner because it is only a tolling

provision. Thus, an examination of the language in section 13-211, such as the court in Giles

undertook, is unnecessary to resolve the arguments raised in Glenbridge’s motion to dismiss.

Our supreme court has held that statutory provisions regarding the survival of actions allow

“the representative [to] step[] into the shoes of the decedent and take[] the rights of the

decedent.” Moon v. Rhode, 2016 IL 119572, ¶ 39. Additionally, the court has noted that

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section 13-209 does not create a statutory cause of action; “[i]t merely allows a representative

of the decedent to maintain those statutory or common law actions which had already

accrued to the decedent before he died.” Advincula v. United Blood Services, 176 Ill. 2d 1, 42

(1996). Stated another way, “[s]ince the disabled person’s estate has the same rights to sue as

the disabled person does, the personal representative acquires the same statutory period to

bring the action, which is two years from the date the disability removed—or two years from

the date of death[.]” Zayed, 2019 IL App (1st) 181552, ¶ 28. This personal injury action had

already accrued to Barbara but her disability tolled the statute of limitations, and accordingly,

her claims were not time-barred at the time of her death and plaintiff is permitted to step into

her shoes and pursue these claims in Barbara’s stead as her estate administrator. See Rhode,

2016 IL 119572, ¶¶ 35-40 (finding that the two-year statute of limitations for survival actions

began when the decedent’s representative learned of the defendant’s wrongdoing because the

representative “steps into the shoes of the decedent”).

¶ 22 Although we find the language of the statutory provisions to be unambiguous, we also

find that this interpretation serves the legislative intent behind section 13-211. “[T]court may

look beyond the language employed and consider the purpose behind the law and the evils

the law was designed to remedy[,]” and “we presume that the legislature did not intend

absurd, inconvenient, or unjust consequences.” Home Star Bank and Financial Services v.

Emergency Care and Health Organization, Ltd., 2014 IL 115526, ¶ 24. This court previously

identified the legislative purpose behind the tolling provision as follows:

“The public policy which underlies the tolling provision *** has been clearly

stated by this and other courts on numerous occasions. This section *** was

designed to ensure that ‘statutes of limitation [were] generally tolled during a

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plaintiff’s infancy, mental incompetency, or imprisonment. [Citation.] The tolling

provision was intended to protect the rights of those who were not ‘legally

competent to bring actions directly’ since the courts recognized that the enforcement

of their rights should not be ‘left to the whim or mercy of some self-constituted next

friend’ [Citations.]”

Passmore v. Walther Memorial Hospital, 152 Ill. App. 3d 554, 558 (1987).

¶ 23 In furtherance of that legislative intent, this court has repeatedly protected the rights of

those under a disability when a cause of action arose. See, e.g., Haas v. Westlake Community

Hospital, 82 Ill. App. 3d 347, 349 (1980); Mazikoske v. Firestone Tire & Rubber Co., 149 Ill.

App. 3d 166, 178 (1986); Valdovinas v. Tomita, 394 Ill. App. 3d 14, 18 (2009). Moreover, in

Bruso by Bruso v. Alexian Bros. Hosp., 178 Ill. 2d 445, 454 (1997), our supreme court

explained, in regards to the tolling provisions, that “incompetents are favored persons in the

eyes of the law and courts have a special duty to protect their rights.” The panel in Zayed

believed that this same interpretation furthered the legislature’s clear intention to extend the

statute of limitations where disabled persons were involved, as opposed to shortening them as

in Giles. Zayed, 2019 IL App (1st) 181552, ¶ 21. The panel also points out that the legislature

is attempting to correct the miscarriage of justice in Giles by proposing to add the words “or

his or her legal representative” to section 13-211. Id. ¶ 21; see 101st Ill. Gen. Assm. House

Bill 3356, 2019 Sess. Accordingly, we do not find that the legislature would have intended

for the protections of section 13-211 to disappear as though the tolling provision never

applied upon the death of the disabled individual; such a conclusion would render the tolling

provision meaningless and would be incongruous with its recognized purpose. See Passmore,

152 Ill. App. 3d at 558 (rejecting the argument that an individual’s “self-constituted next

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friend” must seek formal adjudication of the individual’s disability because that would

destroy the protection afforded to the incompetent person through the tolling provision).

¶ 24 Therefore, as set forth above, the statute of limitations did not expire on plaintiff’s claims

against Glenbridge until two years after Barbara’s death, on April 18, 2018, and this action

was instituted before such expiration date, on February 16, 2018. Accordingly, the trial

court’s dismissal of plaintiff’s claims against Glenbridge is reversed and we remand this case

for further proceedings.

¶ 25 III. CONCLUSION

¶ 26 For the reasons stated, we reverse the judgment of the circuit court of Cook County.

¶ 27 Reversed and remanded.

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