Wilson v. Molda

SIXTH DIVISION
November 13, 2009
No. 1-09-0386
NOLA WILSON, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
MICHAEL E. MOLDA, ) No. 07 L 8517
)
Defendant )
)
)
(Metrolift, Inc., ) Honorable
) Jennifer Duncan-Brice,
Defendant-Appellee). ) Judge Presiding.
JUSTICE ROBERT E. GORDON delivered the opinion of the court:
The sole issue on this appeal is whether subsection (b) of section 2-616 of
the Code of Civil Procedure applied to the facts of this case. 735 ILCS 5/2-616(b)
(West 2006). Subsection (b) is a relation-back statute that permits the addition of
certain claims, even after the statute of limitations has expired, if the claims relate
back to a timely filed claim. 735 ILCS 5/2-616(b) (West 2006). If subsection (b)
applied, then plaintiff Nola Wilson would have been able to pursue her suit against
defendant Metrolift, Inc., for injuries that she sustained when a vehicle driven by
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No. 1-09-0386
defendant Michael E. Molda, a Metrolift employee, collided with her vehicle.
Plaintiff sought to add defendant Metrolift to her suit after the two-year statute of
limitations had expired. The trial court found that plaintiff’s claim against
defendant Metrolift was time-barred, and granted defendant Metrolift’s motion to
dismiss.
For the reasons stated below, we find that subsection (b) does not apply to
the facts at bar and that plaintiff’s cause of action against defendant Metrolift is
therefore time-barred. Accordingly, we affirm.
BACKGROUND
Plaintiff Nola Wilson and defendant Michael E. Molda were the drivers of
two vehicles that collided on August 17, 2005. On August 13, 2007, just a few
days before the two-year statute of limitations was about to expire, plaintiff filed
suit against defendant Molda for injuries sustained during the collision.
Months after the statute of limitations had expired, plaintiff learned that the
defendant driver had been in the employ of defendant Metrolift, Inc. (Metrolift),
when the accident occurred. On February 14, 2008, defendant Molda stated, in
response to interrogatories by plaintiff, that he had been employed by defendant
Metrolift at the time of the accident. The relevant interrogatories were Nos. 14
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No. 1-09-0386
and 15, and they stated in full:
“14. Were you employed at the date of the
occurrence? If so, state the name and address of your
employer, and the date of employment and termination,
if applicable. If your answer is in the affirmative, state
the position, title and nature of your occupational
responsibilities with respect to your employment.
ANSWER: YES. METROLIFT INC., [address
and telephone number]. EMPLOYED 8/14/04 TO
8/6/07. OUTSIDE SALES
REPRESENTATIVE/TERRITORY MANAGER.
VISITATION OF CONSTRUCTION SITES AND
OFFICES.
15. What was the purpose and/or use for which
the vehicle was being operated at the time of the
occurrence?
ANSWER: CALLING ON CUSTOMER
OFFICES AND VISITING CONSTRUCTION SITES
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No. 1-09-0386
TO SEEK NEW BUSINESS FOR AERIAL LIFT
EQUIPMENT RENTALS.”
In his interrogatory response, defendant Molda also stated that the vehicle was not
owned by either Metrolift or himself, but by Margo T. Clemens, and that the
vehicle “was sent to salvage” after the accident. In her appellate brief, plaintiff
asserts that Clemens is Molda’s mother.
On March 10, 2008, plaintiff filed a motion for leave to amend her
complaint, which was granted on March 21, 2008. Plaintiff’s motion stated in
relevant part:
“4. On information and belief, at the time of the
occurrence Defendant MOLDA’s vehicle was covered by
an umbrella commercial insurance policy through his
employer Metrolift, Inc., as Defendant, MOLDA, was in
the course of his employment as an outside sales
representative/territory manager.
5. Plaintifff, WILSON, recently received
Defendant MOLDA’s Answers to Interrogatories and
first became aware and /or placed on notice by
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No. 1-09-0386
Defendant’s Answer to Interrogatories, specifically,
Questions Number 14 and 15 [quoted above] in which he
answered in the affirmative that he was specifically in
the course of his employment at the time of the
accident.”
On April 23, 2008, plaintiff filed an amended complaint that added
Metrolift as a defendant, and added count II, which alleged that defendant
Metrolift was liable for defendant Molda’s negligence under the theory of
respondeat superior. On May 13, 2008, in his answer to plaintiff’s amended
complaint, defendant Molda denied any negligence, but “admitt[ed] that on the
date and approximate time stated [for the accident], defendant was acting within
the course of his employment for Metrolift.”
On May 29, 2008, defendant Metrolift filed a motion to strike count II. This
motion said nothing about the statute of limitations. It sought to strike count II
only on the grounds that the allegations were not verified and that they made
irrelevant claims about insurance coverage. 735 ILCS 5/2-605(a), 5/2-615(a)
(West 2006). In the case at bar, the original complaint was verified, and the
amended complaint was not. Section 2-605(a) requires that if any pleading is
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No. 1-09-0386
verified, “every subsequent pleading must also be verified, unless verification is
excused by the court.” 735 ILCS 5/2-605(a) (West 2006).
A scheduling order dated June 13, 2008, referred to two motions by
defendant Metrolift: (1) the motion, described above, to strike the paragraphs that
were unverified and referred to insurance; and (2) a motion to dismiss pursuant to
section 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-619 (West 2006).
The appellate record does not contain a section 2-619 dismissal motion, filed prior
to June 13. The first section 2-619 dismissal motion in the appellate record is
dated July 18 and is described below.
On June 23, 2008, plaintiff moved to vacate the scheduling order,
previously set by the trial court on June 13, in order to allow her time to take the
depositions of both defendant Molda and a representative of defendant Metrolift.
The trial court granted this motion on July 10, 2008.
On July 18, 2008, defendant Metrolift filed an “amended motion to dismiss”
which asserted the statute of limitations as a bar. This amended motion sought
dismissal pursuant to section 2-619(a)(5) of the Code of Civil Procedure, which
permits dismissal if “the action was not commenced within the time limited by
law.” 735 ILCS 5/2-619(a)(5) (West 2006).
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No. 1-09-0386
On December 3, 2008, after the relevant discovery was taken, plaintiff filed
its memorandum of law in opposition to defendant’s amended motion. In its
memorandum, plaintiff argued, first, that since defendants Metrolift and Molda
were jointly and severally liable under the theory of respondeat superior, the
timely filing against defendant Molda preserved plaintiff’s claim against defendant
Metrolift. In other words, plaintiff argued that her timely filing against one
defendant satisfied the statute of limitations with respect to the other defendant.
Second, plaintiff argued that, even if the court found that the statute of
limitations was a bar, plaintiff’s claim against defendant Metrolift is saved by the
relation-back provision contained in subsection (b) of section 2-616 of the Code of
Civil Procedure. 735 ILCS 5/2-616(b) (West 2006).
In a written opinion issued January 16, 2009, the trial court found that
plaintiff’s claim against defendant Metrolift was not saved by subsection (b). 735
ILCS 5/2-616(b) (West 2006). The trial court also found that the claim was not
saved by subsection (d), even though plaintiff had never argued that subsection (d)
applied. 735 ILCS 5/2-616(d) (West 2006). For these reasons, the trial court
found that plaintiff’s claim against defendant Metrolift was barred by the
applicable two-year statute of limitations, and granted defendant Metrolift’s
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No. 1-09-0386
motion to dismiss. 735 ILCS 5/13-202 (West 2006) (providing a two-year statute
of limitations for personal injury actions).
On January 16, 20091, the trial court also issued a written order stating that,
pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)), there was no just
reason to delay either enforcement or appeal. Supreme Court Rule 304(a) permits
a plaintiff in a multidefendant action to take an appeal from a final judgement as to
only one defendant, if the trial court makes an express finding that “there is no just
reason for delaying either enforcement or appeal.” 210 Ill. 2d R. 304(a). After
the trial court’s express finding, plaintiff filed a notice of appeal on February 11,
2009, and this appeal followed.
ANALYSIS
Standard of Review
On appeal, plaintiff asks us to reverse the trial court’s order, issued pursuant
to section 2-619(a)(5) of the Code of Civil Procedure. 735 ILCS 5/2-619(a)(5)
(West 2006). “A motion to dismiss, pursuant to section 2-619 of the Code, admits
1
In the record on appeal, the order is stamped with a file date, but someone
wrote “18" in blue ink over the day of the month. In the notice of appeal, plaintiff
refers to the filing date of this order as January 26, 2009.
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No. 1-09-0386
the legal sufficiency of the plaintiffs’ complaint, but asserts an affirmative defense
or other matter that avoids or defeats the plaintiffs’ claim.” DeLuna v. Burciaga,
223 Ill. 2d 49, 50 (2006); Solaia Technology LLC v. Specialty Publishing Co., 221
Ill. 2d 558, 579 (2006). For a section 2-619 dismissal, our standard of review is de
novo. Solaia Technology, 221 Ill. 2d at 579.
In addition, our supreme court has held that the standard of review is de
novo, when the question before the trial court was whether a new claim in an
amended complaint related back under subsection (b). Porter v. Decatur Memorial
Hospital, 227 Ill. 2d 343, 353 (2008), discussing 735 ILCS 5/2-616(b) (West
2004).
Timeliness of the Section 2-619 Motion
“For a motion to be properly brought under section 2-619, the motion (1)
must be filed ‘within the time for pleading,’ and (2) must concern one of nine
listed grounds.” River Plaza Homeowner’s Ass’n v. Healey, 389 Ill. App. 3d 268,
275 (2009), quoting 735 ILCS 5/2-619(a) (West 2006).
We cannot determine whether the first requirement of a timely filing was
satisfied, since we cannot determine from the appellate record when defendant
first moved pursuant to section 2-619. It appears from the trial court’s June 13,
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No. 1-09-0386
2008, scheduling order, that defendant Metrolift had already filed a section 2-619
motion, at some earlier, unspecified date. However, no such earlier motion
appears in the appellate record. The first section 2-619 motion in the appellate
record is dated July 18, 2008, and is labeled an “amended motion to dismiss,”
which would make us believe that there was an earlier section 2-619 motion that
the July 18 motion then amended.
We do not find defendant’s motion defective on this ground for two reasons.
First, plaintiff did not claim either at the trial level or on this appeal that defendant
Metrolift failed to file its section 2-619 motion “within the time for pleading.”
735 ILCS 5/2-619(a) (West 2006). “Issues not raised are waived.” River Plaza,
389 Ill. App. 3d at 275 (finding that plaintiff had waived the issue of whether
certain defendants had filed a timely section 2-619 motion). Second, if there was
something necessary and material that was missing from the appellate record, it
was appellant’s burden to provide it. Luss v. Village of Forest Park, 377 Ill. App.
3d 318, 331 (2007); Peleton, Inc. v. McGivern’s, Inc., 375 Ill. App. 3d 222, 227
(2007); Smolinski v. Vojta, 363 Ill. App. 3d 752, 757 (2006).
The second requirement for a section 2-619 motion is that it must concern
one of the nine grounds listed in section 2-619. River Plaza Homeowner’s Ass’n
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No. 1-09-0386
v. Healey, 389 Ill. App. 3d 268, 275 (2009), quoting 735 ILCS 5/2-619(a) (West
2006). Defendant Metrolift’s motion to dismiss concerned the fifth ground listed
in section 2-619, which permits dismissal if “the action was not commenced
within the time limited by law.” 735 ILCS 5/2-619(a)(5) (West 2006); Porter, 227
Ill. 2d at 352 (“an assertion that a claim is barred by the statute of limitations is a
matter properly raised by a section 2-619 motion to dismiss”). Thus, we find that
defendant Metrolift’s dismissal motion satisfied both the timing and the subject
requirements for a section 2-619 motion.
Parties’ Arguments
The parties are in complete agreement that the time period limited by law
was two years from August 17, 2005, the date of the accident. 735 ILCS 5/13-202
(West 2006) (providing a two-year statute of limitations for personal injury
actions). There is also no dispute that defendant Metrolift was added to this action
as a named defendant, after this two-year period had already expired. The sole
issue on appeal is whether plaintiff’s timely filing against defendant Molda
preserved plaintiff’s claims against his unnamed employer.
On appeal, plaintiff argues, first, that since defendants Metrolift and Molda
were jointly and severally liable under the theory of respondeat superior, the
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No. 1-09-0386
timely filing against defendant Molda preserved plaintiff’s claim against the
unnamed Metrolift. Simply put, plaintiff argues that her timely filing against one
defendant satisfied the statute of limitations with respect to the other defendant.
Second, plaintiff argues that, even if this court finds that the statute of
limitations was a bar, plaintiff’s claim against defendant Metrolift is saved by the
relation-back provision contained in subsection (b) of section 2-616 of the Code of
Civil Procedure. 735 ILCS 5/2-616 (b) (West 2006).
Doctrine of Respondeat Superior
Plaintiff’s first argument is that, since the employer was jointly and
severally liable under the theory of respondeat superior, the timely filing against
its employee preserved plaintiff’s claim against the employer.
Since plaintiff can point to nothing in the statute of limitations itself or in
any case interpreting it2 that suggests that a filing against one defendant preserves
a claim against another defendant, plaintiff argues that this is a case of first
2
In her reply brief, plaintiff admits that she can cite “no case in which a
court permitted [a plaintiff] to add an employer as a defendant after the statute of
limitations on the basis that the employer’s liability is based on respondeat
superior.”
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No. 1-09-0386
impression and asks us to be the first and only court in Illinois history to hold that
the filing of a claim against an employee automatically preserves any claims
against his or her employer, so long as the claims arose out of the same transaction
and occurrence alleged against the employee and so long as they arose out of his
or her employment. We decline plaintiff’s invitation to rewrite the existing statute
of limitations, as we believe that is the job of the legislature. 735 ILCS 5/13-202
(West 2006) (providing a two-year statute of limitations for personal injury
actions). See also Roselle Police Pension Board v. Village of Roselle, 232 Ill. 2d
546, 558 (2009) (we must apply statutes as “they are written and cannot rewrite
them”).
Here’s the problem with plaintiff’s argument. Both respondeat superior and
statute of limitations are concepts that have existed for hundreds of years, first in
England and then subsequently adopted by the American states. Keener v. Crull,
19 Ill. 189, 191-205 (1857) (Breese, J., concurring) (providing a brief history of
statutes of limitations in both England and America, starting with “the reign of
James the First”); Toledo, Wabash & Western Ry. Co. v. Durkin, 76 Ill. 395, 396
(1875) (noting the existence of the “doctrine of respondeat superior” in both the
courts of England and America); Bank of America, N.A., v. Bird, 392 Ill. App. 3d
13No. 1-09-0386
621, 626 (2009) (discussing the application of respondeat superior doctrine in
common law in England and in early Illinois), citing Turberville v. Stampe, 1 Salk
13, 1 Ld. Raym. 264 (1698). Both have been part of Illinois state law since the
1800's. Keener, 19 Ill. at 191-205; Toledo, Wabash & Western Ry., 76 Ill. at 396;
Bank of America, 392 Ill. App. 3d at 626, citing Moir v. Hopkins, 16 Ill. 313(1855) and Tuller v. Voght, 13 Ill. 277, 285 (1851). When two legal doctrines
have existed for hundreds of years and when plaintiff can point to no court or
legislature that has changed these doctrines, then this can hardly be labeled a case
of first impression. It is much more likely that no one in all that time thought that
merging the two concepts was a good idea. We must follow in the footsteps of our
predecessors and find the same.
Relation-Back Sections
Second, plaintiff argues that, even if this court finds that the statute of
limitations was a bar, plaintiff’s claim against defendant Metrolift is saved by the
relation-back provision contained in subsection (b) of section 2-616 of the Code of
Civil Procedure. 735 ILCS 5/2-616(b) (West 2006).
The statute of limitations contains two relation-back provisions: subsection
(b) which permits a plaintiff, under certain circumstances, to add claims to an
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No. 1-09-0386
existing action; and subsection (d) which permits a plaintiff to name an additional
defendant in cases of mistaken identity. 735 ILCS 5/2-616 (b), (d) (West 2006);
Morton v. Madison County Nursing Home Auxiliary, 198 Ill. 2d 183, 187 (2001)
(subsection (d) “was designed to afford relief” in “instances of mistaken
identity”); Porter, 227 Ill. 2d at 358-60 (subsection (b) applies “where a party
seeks to add a new legal theory to a set of previously alleged facts” or to add “new
factual” allegations that bear a “‘sufficiently close relationship” in time, character
and events to the original allegations). The trial court held that neither subsection
saved plaintiff’s cause of action against defendant Metrolift.
Plaintiff stated unequivocally in its reply brief to this court: “[p]laintiff has
never argued that this is a case of mistaken identity, or that relief is proper under
735 ILCS 5/2-616(d).” Thus, plaintiff stakes her appeal solely on the saving grace
of subsection (b). Nonetheless, we provide the full text of both subsections,
because a comparison of the wording of the two demonstrates why subsection (b)
does not apply.
Plaintiff argues that a literal reading of subsection (b) permits relation-back
for all claims arising out of the originally named transaction or occurrence,
whether or not the defendant was originally named. Subsection (b) provides in
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No. 1-09-0386
full:
“The cause of action, cross claim or defense set up
in any amended pleading shall not be barred by lapse of
time under any statute or contract prescribing or limiting
the time within which an action may be brought or right
asserted, [(1)] if the time prescribed or limited had not
expired when the original pleading was filed, and [(2)] if
it shall appear from the original and amended pleadings
that the cause of action asserted, or the defense or cross
claim interposed in the amended pleading grew out of
the same transaction or occurrence set up in the original
pleading, even though the original pleading was
defective in that it failed to allege the performance of
some act or the existence of some fact or some other
matter which is a necessary condition precedent to the
right of recovery or defense asserted, if the condition
precedent has in fact been performed, and for the
purpose of preserving the cause of action, cross claim or
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No. 1-09-0386
defense set up in the amended pleading, and for that
purpose only, an amendment to any pleading shall be
held to relate back to the date of the filing of the original
pleading so amended.” (Emphasis added.) 735 ILCS
5/2-616(b) (West 2006).
By its terms, subsection (b) allows a claim to relate back if: (1) the original
complaint was filed within the limitations period; and (2) the new claim “grew out
of the same transaction or occurrence” as the one alleged in the original complaint.
Subsection (b) does not speak of adding defendants, but only of adding claims.
By contrast, subsection (d) speaks in terms of adding defendants. It
specifies when a plaintiff may add “[a] cause of action against a person not
originally named a defendant.” 735 ILCS 5/2-616(d) (West 2006). Subsection (d)
provides in full:
“A cause of action against a person not originally named
a defendant is not barred by lapse of time under any
statute or contract prescribing or limiting the time within
which an action may be brought or right asserted, if all
the following terms and conditions are met: (1) the time
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No. 1-09-0386
prescribed or limited had not expired when the original
action was commenced; (2) the person, within the time
that the action might have been brought or the right
asserted against him or her plus the time for service
permitted under Supreme Court Rule 103(b), received
such notice of the commencement of the action that the
person will not be prejudiced in maintaining a defense on
the merits and knew or should have known that, but for a
mistake concerning the identity of the proper party, the
action would have been brought against him or her; and
(3) it appears from the original and amended pleadings
that the cause of action asserted in the amended pleading
grew out of the same transaction or occurrence set up in
the original pleading, even though the original pleading
was defective in that it failed to allege the performance
of some act or the existence of some fact or some other
matter which is a necessary condition precedent to the
right of recovery when the condition precedent has in
18
No. 1-09-0386
fact been performed, and even though the person was not
named originally as a defendant. For the purpose of
preserving the cause of action under those conditions, an
amendment adding the person as a defendant relates back
to the date of the filing of the original pleading so
amended.” (Emphasis added.) 735 ILCS 5/2-616(d)
(West 2006).
As subsection (d) expressly states, it applies only to cases involving “a mistake
concerning the identity of the proper party.” 735 ILCS 5/2-616(d) (West 2006).
Plaintiff, defendant and the trial court all agree that subsection (d) applies only in
cases of mistaken identity and thus it does not save plaintiff’s claims against
defendant Metrolift. Morton, 198 Ill. 2d at 187 (subsection (d) “was designed to
afford relief” in “instances of mistaken identity”).
Instead of relying on subsection (d), plaintiff argues that subsection (b), by
its terms, applies to claims against any individual, so long as those claims arose
out of the same transaction or occurrence as the timely filed complaint. For the
following reasons, we are not persuaded by plaintiff’s interpretation of subsection
(b)
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No. 1-09-0386
First, subsection (b), by its terms, applies only to the addition of “causes of
action, cross claim[s] or defense[s].” 735 ILCS 5/2-616(b) (West 2006).
Longnecker v. Loyola University Medical Center, 383 Ill. App. 3d 874, 887
(2008) (applies only to the addition of causes of action, cross-claims and
defenses). “ ‘[S]tatutory language ought to be given its plain and ordinary
meaning.’ ” People v. Bair, 379 Ill. App. 3d 51, 59 (2008), quoting People ex rel.
Devine v. Sharkey, 221 Ill. 2d 613, 617 (2006). The subsection says nothing about
adding defendants, and we cannot write in what is not there. Roselle, 232 Ill. 2d at
558 (we must apply statutes as “they are written and cannot rewrite them”).
Second, subsection (b), which speaks only of adding new claims, stands in
marked contrast to a subsection of the same statutory section, namely subsection
(d) which specifies when the addition of a new defendant is permitted. Basic rules
of statutory construction require us to read one statutory section as a consistent
whole. “ ‘[W]e construe statutes as a whole’ with each phrase construed in
connection with every other phrase.” Bair, 379 Ill. App. 3d at 59, quoting Sharkey,
221 Ill. 2d at 617; In re E.B., 231 Ill. 2d 459, 466 (2008) (we must construe a
statute “as a whole” and “in light of other relevant provisions of the statute”).
When interpreting a statute, we must consider its overall “ ‘legislative design.’ ”
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No. 1-09-0386
Bair, 379 Ill. App. 3d at 60, quoting People v. Murphy, 108 Ill. 2d 228, 234
(1985). Reading the statutory section as a consistent whole confirms our
conclusion that its subsection (b) was intended, as it was written, only for the
addition of claims, while its subsection (d) was intended, as it was written, for the
addition of defendants.
Third, another section of the Code of Civil Procedure required the original
complaint to name all the parties, including all the defendants. Section 2-401
states that a complaint must provide “the names of all parties for and against
whom relief is sought.” 735 ILCS 5/2-401(c) (West 2006). Thus, when subsection
(b) speaks of adding claims, and only claims to a complaint, the presumption is
that the original complaint was otherwise properly filed and that it listed all the
required defendants, as it was compelled to do.
Last but certainly not least, plaintiff fails to cite a case in which a court
permitted a plaintiff to use subsection (b) to add a new defendant. C.f. Porter, 227
Ill. 2d at 361 (where plaintiff did not seek to add a second hospital employee as a
defendant, his additional count against defendant hospital, based on the negligence
of this second hospital employee, related back under subsection (b)). See Roiser
v. Cascade Mountain, Inc., 367 Ill. App. 3d 559, 568 (2006) (by failing to offer
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No. 1-09-0386
supporting legal authority, plaintiffs waived consideration of their theory); People
v. Ward, 215 Ill. 2d 317, 332 (2005) (“point raised in a brief but not supported by
citation to relevant authority *** is therefore forfeited.”).
For these reasons, we are not persuaded by plaintiff’s interpretation of
subsection (b). 735 ILCS 5/2-616(b) (West 2006).
CONCLUSION
For the foregoing reasons, we affirm. Plaintiff’s cause of action against
defendant Metrolift is barred by the statute of limitations; and the relation-back
provision contained in subsection (b) of section 2-616 of the Code of Civil
Procedure (735 ILCS 5/2-616(b) (West 2006)) does not save it. We express no
opinion concerning any indemnification claim that defendant Molda may have
against Metrolift, since the trial court made no ruling concerning indemnification.
Affirmed.
J. GORDON and McBRIDE, JJ., concur.
22