Zayed v. Clark Manor Convalescent Center, Inc.

2019 IL App (1st) 181552

• Court: Appellate Court of Illinois
• Decided: September 26, 2019
• Docket: 1-18-1552
• Status: Unpublished

Opinion

2019 IL App (1st) 181552 No. 1-18-1552

FOURTH DIVISION September 26, 2019

_____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

ITADIL ZAYED, as Independent Administrator of the Estate of Said ) Mohammad Zayed, Deceased, ) ) Appeal from Plaintiff-Appellant, ) the Circuit Court ) of Cook County v. ) ) 2017-L-007306 CLARK MANOR CONVALESCENT CENTER, INC., an Illinois ) Corporation, d/b/a Clark Manor Convalescent Center; J.S. ) Honorable AFFILIATES, LTD., an Illinois Corporation; and JLR FINANCIAL ) John P. Callahan, SERVICES CORP., an Illinois Corporation f/k/a JLR Management ) Judge Presiding Corp., ) ) Defendants-Appellees. )

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Lampkin * and Burke concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Itadil Zayed, as the independent administrator of the estate of Said Mohammad

Zayed, filed a wrongful death and survival action alleging that, while Said was residing in Clark

Manor Convalescent Center (Clark Manor), he fell and suffered a hip fracture that caused or

contributed to causing his death 18 months later. Said had been disabled by dementia and could

not have filed his own suit. The nursing home moved to dismiss Said’s personal claims as

* Justice Lampkin was assigned as a panel member on this case on September 10, 2019. She was not present for oral argument; however, she did review the recording of the oral arguments. 1-18-1552

untimely pursuant to an appellate decision involving similar facts, Giles v. Parks, 2018 IL App

(1st) 163152.

¶2 Illinois law provides that personal injury suits are to be filed within two years of when the

cause of action accrues. 735 ILCS 5/13-202 (West 2014). In Giles, the court ruled that section

13-211 of the Code of Civil Procedure (Code) (735 ILCS 5/13-211 (West 2012)), which

suspends the running of the statute of limitations while a person is legally disabled, was not

controlling and that section 13-209(a)(1) (735 ILCS 5/13-209(a)(1) (West 2012)), which extends

the limitations period when a tortiously injured person dies before filing suit, governed. Giles,

2018 IL App (1st) 163152, ¶¶ 12-17. Pursuant to Giles, the trial court found that Said’s personal

claims accrued when he was traumatically injured in 2014 and, because he died in 2015 during

the two-year limitations period for personal injury claims, section 13-209(a)(1) extended the

limitations period to 2016 for only one year beyond his death, meaning that the claims plaintiff

filed on Said’s behalf in 2017 were untimely.

¶3 On appeal, plaintiff contends that Giles misinterprets the legislature’s intent in the two

statutes and results in injustice. She argues that sections 13-211(a) and 13-209(a)(1) are to be

applied together, so that a disabling condition during a person’s lifetime indefinitely suspends the

time limitation for filing a tort claim and then, only upon the person’s death, does the two-year

limitation period begin to run for that person’s legal representative to bring an action. See 735

ILCS 13-209(a)(1), 13-211(a) (West 2014).

¶4 BACKGROUND

¶5 According to plaintiff’s complaint, on June 8, 2012, when Said was 62 years old, he

became a resident of the subject nursing home located in Chicago. Prior to his admission and for

the remainder of his life, Said was under a legal disability, in that he was incapable of managing

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his person or property and could not comprehend his legal rights or the nature of the acts that

would give rise to his cause of action. Although not alleged in the complaint, counsel told the

trial court during arguments that Said’s admitting diagnosis to Clark Manor included dementia,

Parkinson’s disease, and Alzheimer’s disease and that it was undisputed that he was under a legal

disability. It was further alleged that Said was at a high risk for falls and that, while he was

unattended, he fell out of bed on March 4, 2014. Plaintiff alleged that Said spent six days in the

hospital and was then transferred to a different nursing home. Said’s fall caused a right

intertrochanteric (hip) fracture that either caused or contributed to causing his death on

September 25, 2015, a few months before his sixty-sixth birthday.

¶6 Plaintiff filed suit on July 20, 2017, which was 3 years and 4 months after Said’s fracture

and 1 year and 10 months after his death. Seven of the claims were on Said’s behalf, seeking

compensation for his expenses, pain and suffering, disability, and disfigurement due to violations

of his rights under the Nursing Home Care Act and under common-law negligence. See 210

ILCS 45/1-101 et seq. (West 2014) (statute intended to protect the rights of nursing home

residents vulnerable to exploitation, neglect, or abuse); see also 755 ILCS 5/27-6 (West 2014)

(statute that allows for recovery of damages the injured person could have recovered, had that

person survived). The six other claims were to compensate Said’s family for their loss of

companionship, loss of society, grief, sorrow, and mental suffering, and from all indications

those claims are still pending in the trial court.

¶7 Clark Manor filed a section 2-619 motion to dismiss Said’s seven personal claims as

untimely pursuant to Giles. 735 ILCS 5/2-619 (West 2016); Giles, 2018 IL App (1st) 163152.

The trial court considered the parties’ briefs and arguments, granted the dismissal, and, pursuant

to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016), authorized this interlocutory appeal.

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¶8 ANALYSIS

¶9 On review from the dismissal order, we take all well-pled facts in the complaint as true,

along with all reasonable inferences that can be gleaned from those facts. Henderson Square

Condominium Ass’n v. LAB Townhomes, LLC, 2015 IL 118139, ¶ 34. We address a section 2-

619 dismissal de novo. Henderson Square, 2015 IL 118139, ¶ 34. The de novo standard governs

our review for the additional reason that we are addressing the proper interpretation of sections

13-209(a)(1) and 13-211(a) and statutory construction poses a question of law. Relf v. Shatayeva,

2013 IL 114925, ¶ 21; 735 ILCS 5/13-209(a)(1), 13-211(a) (West 2014). Under the de novo

standard, “we perform the same analysis a trial court would perform and give no deference to the

judge’s conclusions or specific rationale.” Bituminous Casualty Corp. v. Iles, 2013 IL App (5th)

120485, ¶ 19.

¶ 10 In Giles, the case previously decided by another division of this court, Morris, an adult,

was walking through a crosswalk when he was struck by a tow truck. Giles, 2018 IL App (1st)

163152, ¶ 3. The accident rendered Morris unconscious, and he remained so until he died the

next day at the hospital. Giles, 2018 IL App (1st) 163152, ¶ 3. Two years after Morris died and

two years and one day after the accident, Morris’s brother, Roscoe, filed a one-count action on

Morris’s behalf against the tow truck’s owner. Giles, 2018 IL App (1st) 163152, ¶ 4. Morris’s

personal injury claim and the personal injury claims now at issue were subject to the same two-

year statute of limitations. See 735 ILCS 5/13-202 (West 2012).

¶ 11 The Giles action was, however, dismissed for want of prosecution. Giles, 2018 IL App

(1st) 163152, ¶ 5. In a petition for relief from the judgment order, Roscoe presented evidence

that the attorney he originally retained had a minor stroke and was no longer practicing law.

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Giles, 2018 IL App (1st) 163152, ¶ 6. In response, the tow truck owner argued that, regardless,

the claim was time barred when it was filed. Giles, 2018 IL App (1st) 163152, ¶ 6. Roscoe

replied that his brother Morris was under a legal disability from the time he was struck in the

crosswalk until the time he died the next day, that the legal disability tolled the statute of

limitations for that one day, and that the complaint regarding Morris’s personal injuries was

therefore timely. Giles, 2018 IL App (1st) 163152, ¶ 7. Here, Said’s circumstances are slightly

different from Morris’s, in that Said was legally disabled prior to being tortiously injured, but his

personal representative now also argues that a legal disability tolled the statute of limitations

during Said’s remaining lifetime.

¶ 12 In order to avoid the conclusion that the action was time barred, Roscoe relied on

interpreting section 13-211 and section 13-209 together, as plaintiff now also relies. Section 13-

211 states in relevant part:

Ҥ 13-211. Minors and persons under legal disability.

(a) If the person entitled to bring an action, specified in Sections 13-201 through 13-

210 of this Code, at the time the cause of action 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 2014).

“ ‘Person under legal disability’ means a person 18 years or older who (a) because of mental

deterioration or physical incapacity is not fully able to manage his or her person or estate ***.” 5

ILCS 70/1.06 (West 2014).

¶ 13 The pertinent portion of section 13-209 states:

Ҥ 13-209. Death of party.

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(a) If 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:

(1) 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 5/13-209(a)(1) (West 2014).

¶ 14 Roscoe sought the benefit of both statutes, so that the limitations period was tolled by

section 13-211 from the time of the collision until Morris’s death and that the cause of action

survived for two years after that date due to section 13-209. Giles, 2018 IL App (1st) 163152,

¶ 14. According to Roscoe, section 13-209 gave him all the rights that Morris had, and section

13-211 saved the claim because, had Morris survived, Morris “ ‘could have brought a personal

injury action up to and including *** two years after his legal disability was removed [by his

death].’ ” Giles, 2018 IL App (1st) 163152, ¶ 14. It was undisputed in Giles and undisputed here

that the death of the person ends his or her legal disability. See Giles, 2018 IL App (1st) 163152,

¶ 14.

¶ 15 The trial court rejected this interpretation of the statutes and denied Roscoe’s petition to

reinstate the complaint. Giles, 2018 IL App (1st) 163152, ¶ 8.

¶ 16 The appellate court affirmed the ruling, starting with the fact that, when a person is

injured in a sudden, traumatic event, the person’s cause of action accrues immediately and the

statute of limitations begins to run on the day the injury occurs. Giles, 2018 IL App (1st) 163152,

¶ 11 (citing Golla v. General Motors Corp., 167 Ill. 2d 353, 362 (1995)). The court considered

Roscoe’s argument that Morris’s unconscious state and section 13-211 tolled the statute of

limitations. However, the court reasoned that section 13-211’s language was specific to the

disabled person and could not be invoked by a disabled person’s representative:

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“The statute dealing with legal disability is specific to and only applies to the person

suffering from the disability. Section 13-211 states that ‘[i]f the person entitled to bring

an action’ is under a legal disability, then ‘he or she may bring the action within 2 years

after the *** disability is removed.’ (Emphases added.) [735 ILCS 5/13-211 (West

2012).] The statute contemplates both that the disability be removed at some point and

that the injured party bring the action that would otherwise be time barred. Id. [Section

13-211] does not contemplate a representative bringing any action at all, let alone an

action two years after the disability is removed. Fess v. Parke, Davis & Co., 113 Ill. App.

3d 133, 135 (1983) (the person under a disability, and ‘only that person[,] may bring an

action within two years after the disability is removed’); see also Swider v. Holy Cross

Hospital, 146 Ill. App. 3d 740, 742 (1986).

The cause of action that an injured party has and the one that the party’s

representative might have derivatively are treated differently. To borrow generously from

and basically quote Fess: the reason for tolling the statute of limitations for a person that

is legally disabled is that enforcement of that person’s right should not be left to the

mercy of someone else. Fess, 113 Ill. App. 3d at 135. An exception for someone

suffering a legal disability 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. Id. The injured person’s

representative, who is not under any legal disability, is quite capable of bringing suit

within the two years of the injured person’s injury. Id. at 136. Accordingly, plaintiff

cannot invoke section 13-211 as a mechanism to toll the statute of limitations.”

(Emphases in original.) Giles, 2018 IL App (1st) 163152, ¶¶ 15-16.

¶ 17 Having considered the language of section 13-211 and its relevance to the facts, the court

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concluded that it “must disregard any legal disability that [Morris] might have had.” Giles, 2018

IL App (1st) 163152, ¶ 17. “The statutory scheme simply does not allow for [Roscoe] to use [his

brother Morris’s] legal disability as an excuse for not filing his own claim within two years of

the collision.” Giles, 2018 IL App (1st) 163152, ¶ 18. Thus, the survival action was time barred,

as it was not filed within two years of Morris’s tortious injury. Giles, 2018 IL App (1st) 163152,

¶ 17.

¶ 18 Plaintiff contends Giles was wrongly decided, because the court did not properly consider

the fact that the injured person with a disability was incapable of filing suit and, thus, entitled to

section 13-211’s protection. See 735 ILCS 5/13-211 (West 2012). Plaintiff contends the court’s

language shows that it viewed the claim as a derivative action for the personal representative’s

own benefit, when in fact a survival action asserts a claim for the benefit of a decedent. See Will

v. Northwestern University, 378 Ill. App. 3d 280, 289 (2007) (survival action asserts a claim for

the decedent, and a wrongful death action is for the benefit of the decedent’s family). The court’s

erroneous view allowed it to rely on two distinguishable cases, Fess and Swider, which indicate

that parents of a minor, whose cause of action is tolled during the child’s minority, must file their

own derivative claims regarding loss of consortium or expenses within two years of the

occurrence. Plaintiff emphasizes that Fess and Swider concerned competent plaintiffs bringing

claims for their own benefit. Also, the trial court failed to appreciate that sections 13-211 and 13-

209 were enacted to extend statutes of limitations in two different circumstances, but the court’s

ruling shortened the limitations period that a disabled person’s representative has to pursue the

disabled person’s claims. Plaintiff contends that the two statutes must be read together: once

section 13-211 preserves the full two-year limitations period during the disabled person’s

lifetime, the next step is to apply the language in section 13-209 indicating “an action may be

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commenced by his or her representative before the expiration of that time.” 735 ILCS 5/13-

209(a)(1) (West 2014). Reading the statutes together then leads to the conclusion that the Giles

lawsuit was timely filed within the two years after Morris’s death. The court, however, read

section 13-211 as if its tolling for disabled adults did not include a personal representative of a

disabled person’s estate. Alternatively, plaintiff contends Giles is distinguishable because Said

was disabled before he was tortiously injured.

¶ 19 The result in Giles is harsh and unfair under case law that is not settled in Illinois. The

Giles court misinterprets the intent of the legislature because the statutes involved were created

to increase the statute of limitations for disabled people, not limit the time periods. The Giles

court basically found that there was a conflict between two Illinois statutes and attempted to

interpret the intent of the legislature in a manner that prejudiced the plaintiff in this case in his

survival action claim when it was dismissed by the trial court. As noted, the two statutes are as

follows:

(a) If 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:

(1) 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 5/13-209 (West 2016).

(a) If the person entitled to bring an action, specified in Sections 13-201 through

13-210 of this Code, at the time the cause of action 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

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person attains the age of 18 years, or the disability is removed.” 735 ILCS 5/13-211

(West 2016).

¶ 20 The First Division of this court issued its decision of first impression in Giles,2018 IL

App (1st) 163152, finding that section 13-211 did not apply to representatives of deceased

persons and that injured people with legal disabilities who die while still on legal disability have

only one year to bring a survival action as set forth in section 13-209, notwithstanding the

wording of section 13-211.

¶ 21 Both sections 13-209 and 13-211 were enacted to extend the statutes of limitations in

different situations, not limit them. We cannot believe that the legislature intended the result that

the Giles court found. We believe the statute set forth in section 13-211 applies to the personal

representative of a person with a legal disability who dies before a suit is filed and that all other

suits that are filed by a personal representative should be filed under section 13-209. There is

nothing in the committee notes in the passage of this legislation that would indicate the intention

of the legislature to do otherwise. In addition, we believe that when the House of Representatives

proposed adding the words “or his or her legal representative” to section 13-211 in 2019, the

legislature was attempting to correct a miscarriage of justice caused by the courts (101st Ill. Gen.

Assem. House Bill 3356, 2019 Sess.). This proposed legislation bolsters our conclusion that a

legal representative has the same rights as the person they are representing, and the legislature

wanted to make that clear and obvious to those who think otherwise.

¶ 22 The state of New York has decided this type of conflict as we have. In the Supreme

Court, Appellate Division of New York, a similar case was decided, Barrett v. State of New

York, 560 N.Y.S.2d 302 (App. Div. 1990). In the Barrett case, the Court of Claims Act (Act)

(29A N.Y. Ct. Cl. § 10(3) (1990)) provided that a claim against the State or a written notice of

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an intention to file a claim must be filed within 90 days after a decedent’s death (Barrett, 560

N.Y.S.2d at 304), yet section 10(5) of the Act states that, “ ‘If the claimant shall be under legal

disability, the claim may be presented within two years after such disability is removed.’ ”

Barrett, 560 N.Y.S.2d at 304 (quoting 29A N.Y. Ct. Cl. § 10(5) (1990)). The relevant facts in the

Barrett case were not in dispute. Barrett, 560 N.Y.S.2d at 303. The deceased infant, Kellian

Barrett, was born on August 3, 1982, at the State University Hospital of Downstate Medical

Center in Brooklyn (Downstate). Barrett, 560 N.Y.S.2d at 303. It was claimed that, as a result of

the malpractice of Downstate’s staff before, during and after her birth, Kellian suffered brain

damage, mental retardation, motor retardation, hydrocephaly, quadriplegia, and seizures. Barrett,

560 N.Y.S.2d at 303. Her condition necessitated that she undergo multiple surgical procedures,

and Kellian ultimately died on August 17, 1985. Barrett, 560 N.Y.S.2d at 303. Valerie Barrett,

the mother of the deceased infant, was appointed administratrix of Kellian’s estate on December

3, 1986. Barrett, 560 N.Y.S.2d at 303. On or about December 26, 1986, Valerie filed a complaint

on behalf of Kellian’s estate to recover damages for Kellian’s conscious pain and suffering and

wrongful death. Barrett, 560 N.Y.S.2d at 303. In its answer, the State asserted, inter alia, the

affirmative defense that the claim was not timely filed. Barrett, 560 N.Y.S.2d at 303. The State

then moved to dismiss the claim, which was granted, and the plaintiff appealed. Barrett, 560

N.Y.S.2d at 303. The plaintiff used the same reasoning as the plaintiff in the case at bar that,

“pursuant to the foregoing provision, Kellian had been under the legal disability of infancy at the

time of the alleged malpractice, that the legal disability had been removed by her death, and that

the filing of the claim to recover damages for conscious pain and suffering on behalf of her estate

within two years of her death was therefore timely.” Barrett, 560 N.Y.S.2d at 303-04. The Court

of Claims granted the State’s motion and dismissed the claim to recover damages for conscious

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pain and suffering as untimely because it was not filed within 90 days. Barrett, 560 N.Y.S.2d at

304. The higher court reversed and stated:

“While we are mindful of the foregoing principles, we nevertheless recognize that

the tolling provision at issue in this case is not borrowed from some other body of civil

law, but is itself part of Court of Claims Act § 10. Hence, where a claimant is laboring

under a legal disability, such as infancy or incompetency, at the time the claim accrues,

the claim need not be presented until two years after the disability is removed [citations].

The plain language of the statutory toll permits its assertion by the deceased infant’s

personal representative on behalf of the estate herein. At the time the claim for Kellian

Barrett’s conscious pain and suffering accrued, Kellian was an infant and therefore was

under a legal disability. Under similar circumstances, the courts have interpreted Court of

Claims Act § 10(5) as dispensing with the 90-day filing requirement set forth in Court of

Claims Act § 10(3), regardless of whether that 90-day period is measured from the date

of injury or the date of removal of the disability (see, e.g., Boland v. State of New York,

[284 N.E.2d 569 (N.Y.1972)] (holding that a patient involuntarily committed to a mental

institution at the time of injury was required only to file a claim within two years, rather

than 90 days, after the disability was removed); Crawford v. State of New York, [326

N.Y.S.2d 449 (App. Div. 1971) (holding that a person under the former legal disability of

imprisonment at the time of injury had timely filed a claim within two years after

removal of the disability, and that filing within 90 days after the accident was

unnecessary); Weber v. State of New York, [45 N.Y.S.2d 834 (App. Div. 1984)] (holding

that an infant had two years after reaching the age of majority within which to timely file

a claim and that filing within 90 days of the accident was not required)). None of these

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decisions suggests that a different result would be required if the person under the

disability died and the survival claim was pursued by the decedent’s estate. Kellian’s

disability of infancy was removed by her death on August 17, 1985 (see, Barnes v.

County of Onondaga, [481 N.Y.S.2d 539 (App. Div. 1984), aff’d, 481 N.E.2d 245 (N.Y.

1985)]; Gibbons v. City of Troy, [457 N.Y.S.2d 950 (App. Div. 1982)]). Hence, in

accordance with the plain language of the statute and in conformity with the spirit of the

foregoing decisions, the claim for conscious pain and suffering which belonged to the

infant and survived her death [citation] may be timely presented on behalf of her estate

within two years after her death [citations]. Indeed, to conclude otherwise would place

the deceased infant’s estate at a distinct procedural disadvantage, for while the infant, if

living, would have two years from the date of reaching the age of majority within which

to file a claim for conscious pain and suffering, the estate of that same infant, solely by

reason of the infant’s untimely death, would at best be relegated to a 90-day period from

the date of death within which to seek the identical relief. Nothing in the text of Court of

Claims Act § 10(5) authorizes or supports such a distinction, nor does the reasoning of

the State and the Court of Claims in this case persuade us to fashion a rule of disparate

treatment between living parties who formerly were under legal disabilities and the

estates of deceased persons whose legal disabilities have been removed by reason of

death.” Barrett, 560 N.Y.S.2d at 304-05.

¶ 23 Just like the case at bar, the deceased estate here was placed at a distinct procedural

disadvantage, for while the deceased was under the legal disability, he would have had two years

to filed his claim after the disability was removed, but because he died, his estate was relegated

to a one-year period from the date of death to file its action because his estate was required to

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have a personal representative. That result could not have been intended by our legislature. In

2018, the New York Supreme Court, Appellate Division, confirmed its findings in Barrett in a

similar case and entered the same ruling. Puckerin v. State of New York, 69 N.Y.S.3d 836 (App.

Div. 2018).

¶ 24 The state of Wisconsin has also decided this same issue in the same manner as New

York. In the Wisconsin case, the decedent was under a mental disability confined to a nursing

home between 1994 and 1996, suffering from Alzheimer’s disease. Walberg v. St. Francis

Home, Inc., 2004 WI App 120, ¶ 2, 275 Wis. 2d 289, 685 N.W.2d 788. She died on August 15,

2000. Walberg, 2004 WI App 120, ¶ 2. On August 12, 2002, plaintiff was appointed special

administrator for the decedent’s estate and filed a lawsuit against the nursing home, claiming

negligence for personal injuries (survival action). Walberg, 2004 WI App 120, ¶ 3. The nursing

home pleaded that the case was time-barred and its motion to dismiss was granted. Walberg,

2004 WI App 120, ¶¶ 3-4. Plaintiff appealed and the Court of Appeals of Wisconsin reversed.

Walberg, 2004 WI App 120, ¶ 1. The trial court applied section 893.22 of the Wisconsin

Statutes, which stated:

“ ‘Limitation in case of death. If a person entitled to bring an action dies before

the expiration of the time limited for the commencement of the action and the cause of

action survives, an action may be commenced by the person’s representatives after the

expiration of that time and within one year from the person’s death.” Walberg, 2004 WI

App 120, ¶ 6 (quoting Wis. Stat. § 893.22 (2004)).

The trial court concluded that, upon a person’s death, this statute automatically shortened the

period of limitations for any of that person’s existing claims to one year, causing the estate’s

action to be time-barred, but the Wisconsin appeals court disagreed:

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“In Curran v. Witter, 68 Wis. 16, 22, 31 N.W. 705 (1887), the supreme court

interpreted the predecessor to Wis. Stat. § 893.22 and held, ‘It is obvious that this

provision only reaches a case where the person entitled to bring the action dies during the

last year of the term of limitation.’ That is, § 893.22 applies only when a person dies with

an existing claim that has less than one year remaining on the period of limitations. In

that case, the period of limitations is extended up to one year, which begins to run upon

the person’s death. Thus, in situations where a cause of action has more than one year

remaining under its statute of limitations, § 893.22 simply does not apply.

Here, Wis. Stat. § 893.22 does not apply because [the deceased’s] claim[ ] could

not have had less than one year remaining on their periods of limitations. It is undisputed

that [the deceased] suffered from a mental illness at the time her claims accrued and,

therefore, Wis. Stat. § 893.16 tolled her claims’ periods of limitations. Section 893.16

states in relevant part:

Person under disability. (1) If a person entitled to bring an action is, at the

time the cause of action accrues . . . mentally ill, the action may be commenced

within 2 years after the disability ceases, except that where the disability is due to

mental illness, the period of limitation prescribed in this chapter may not be

extended for more than 5 years.

(2) Subsection (1) does not shorten a period of limitation otherwise

prescribed.” Walberg, 2004 WI App 120, ¶¶ 7-8.

¶ 25 The Supreme Court of Appeals of West Virginia found that, in a personal representative’s

wrongful death and survival claim against a hospital, the statute of limitations for a personal

injury claim is tolled during the period of disability and, in the event the injured person dies

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before the mental disability ends, the statute of limitations begins to run on the date of the injured

person’s death. Mack-Evans v. Hilltop Healthcare Center, Inc., 700 S.E.2d 317, 326 (W. Va.

2010).

¶ 26 When a statute is clear and unambiguous and the legislative intent is clear, as it is in this

case, it is the duty of the courts to apply the statute as written. In the case at bar, there are two

statutes, and we follow the reasoning of the New York decision in Barrett and the Wisconsin

decision in Walberg because they provide a correct result. We find that the plain language of the

statutory toll for a person on legal disability permits its assertion by the deceased’s personal

representative on behalf of the estate herein as stated in section 13-211 and all other suits that are

filed by a personal representative shall be filed under section 13-209.

¶ 27 Reading sections 3-209 and 3-211 together demonstrates that there is no conflict between

them and that the deceased’s representative had two years from the date of death to bring this

suit, which she did.

¶ 28 In section 13-211, the “legal disability” preventing a disabled person from suing is

removed when the disability is removed or when the disabled person dies, and any rights the

person had to sue pass to his or her estate. Since the disabled person’s estate has the same rights

to sue as the disabled person does, the personal representative of the deceased acquires the same

statutory period to bring the action, which is two years from the date the disability was

removed—or two years from the date of death, in the case of a disabled person who dies while

still disabled.

¶ 29 Section 13-209 provides that a representative may commence an action either “before the

expiration of the time limited for commencement”—which, in the case of a disabled person,

includes two years after he or she is no longer under a disability—or “one year from his or her

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death, whichever date is later.” Two years is obviously later than one year, so the two-year limit

applies in this case.

¶ 30 Interpreting the two rules together, as we are required to do, there is no conflict between

them, and the deceased’s representative had two years from the date of death to file this action,

which she did. As a result, we reverse the circuit court of Cook County and deny defendant’s

motion to dismiss.

¶ 31 CONCLUSION

¶ 32 Reversed and remanded.

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No. 1-18-1552

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2017-L- 007306; the Hon. John P. Callahan, Judge, presiding.

Attorneys Leslie J. Rosen, of Leslie J. Rosen Attorney at Law, P.C., and for Steven M. Levin, Daisy Ayllon, and Jaime Koziol Delaney, of Appellant: Levin & Perconti, Ltd., both of Chicago, for appellant.

Attorneys P. Patrick Cella, of Law Offices of Edward J. Kozel, of Chicago, for for appellees. Appellee:

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