Hage v. Kossier

2018 IL App (2d) 170901No. 2-17-0901
Opinion filed August 8, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
BRITTANY N. HAGE and ) Appeal from the Circuit Court
JOANN M. BLACKMORE, ) of Stephenson County.
)
Plaintiffs-Appellants, )
)
v. ) No. 12-L-4
)
SHANE M. KOSSIER, TRISHA L. )
PANNKUK, PENNY M. LUDWIG, JOHN W. )
CLINE, and ANTHONY J. MIATKE, )
)
Defendants ) Honorable
) Glenn R. Schorsch,
(Trisha L. Pannkuk, Defendant-Appellee). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Jorgensen and Schostok concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs, Brittany N. Hage and Joann M. Blackmore, appeal the dismissal of count VI of
Hage’s fourth amended complaint, which added Blackmore as a plaintiff in Hage’s action against
defendant Trisha L. Pannkuk. Because the allegations in count VI did not arise out of the same
transaction or occurrence as Hage’s original complaint, count VI was barred by the applicable
statute of limitations. Therefore, we affirm the judgment of the circuit court of Stephenson
County.
¶2 I. BACKGROUND
2018 IL App (2d) 170901¶3 The following facts are taken from the record. On February 1, 2011, during a winter
snowstorm, a 13-vehicle accident occurred on Route 72 in Ogle County. The weather conditions
included snow on the roadway and blowing snow that greatly reduced visibility. Drivers reported
that immediately before the accident their speeds were limited to between 20 and 35 miles per
hour, in a 55 mile-per-hour speed zone. Several lawsuits sprang from this incident, two of
which are relevant to this appeal.
¶4 On April 5, 2012, Hage filed a five-count complaint against defendants, Shane M.
Kossier, Pannkuk, Penny M. Ludwig, John W. Cline, and Anthony J. Miatke. In her complaint,
Hage alleged that she suffered serious injuries as a passenger in a car driven by Kossier when
that car slid into vehicles driven by Ludwig and Cline. Hage further alleged that Kossier’s car
was then hit from the rear by a car driven by Pannkuk. According to Hage’s complaint, the
combination of cars was then hit by a vehicle driven by Miatke.
¶5 On January 24, 2013, one week before the limitations period would have expired,
Blackmore, who was also involved in the accident, filed a single-count complaint against Cline.
No other parties were named in that action. Blackmore alleged that she stopped her car in the
roadway when she approached another car in the road that was already stopped. She alleged
that, when she exited her car to speak with the driver of the car that was stopped in front of her,
Cline’s car struck her car from behind. Her car was thrust forward, hitting her, running over her
foot, and slamming her into a snow bank, causing injuries.
¶6 On August 23, 2013, the trial court consolidated the Hage and Blackmore actions for the
purposes of discovery only. Between November 2013 and August 2014, the parties deposed
Ludwig, Pannkuk, Cline, Blackmore, and Eric Miller, who was involved in the accident but not a
party in either of these cases.
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2018 IL App (2d) 170901¶7 On December 7, 2015, Hage sought leave to file a fourth amended complaint. 1 She
proposed adding Blackmore as a plaintiff in the claims against Pannkuk, Ludwig, and Cline.
Count VI of the proposed fourth amended complaint was directed against Pannkuk. In it,
Blackmore alleged that Pannkuk’s car collided with Ludwig’s and Cline’s, which had already
collided and struck Blackmore. In other words, the proposed fourth amended complaint
included a count by Hage alleging that Pannkuk’s car struck the car in which she was riding, as
well as a separate count by Blackmore alleging that Pannkuk’s car struck Ludwig’s and Cline’s
cars.
¶8 On January 25, 2016, Pannkuk objected to Hage’s motion to amend, arguing that the
proposed fourth amended complaint was outside the statute of limitations. Moreover, Pannkuk
argued, count VI did not relate back to Hage’s original complaint, because it alleged a new cause
of action with different injuries. The trial court granted Hage leave to amend, without
commenting on the substance of the relation-back argument. On June 23, 2016, Hage filed her
fourth amended complaint.
¶9 On August 10, 2016, Pannkuk filed a motion to dismiss count VI of the fourth amended
complaint, arguing again that Blackmore’s claim did not relate back to Hage’s original complaint
because it did not arise out of the same transaction or occurrence. Specifically, Pannkuk
maintained that count VI was for different injuries and required different proofs to defend.
Hage and Blackmore countered that both lawsuits involved “identical facts as well as similar
issues of liability and damages” and that the numerous counterclaims for contribution put all
1
The parties differ as to whether the complaint at issue is the third or fourth amended
complaint, because a previous amended complaint was served but never filed. For the purpose of
this disposition, we refer to the complaint at issue as the fourth amended complaint.
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2018 IL App (2d) 170901defendants on notice that each defendant thought that the others were responsible for the
accident. On October 28, 2016, the court denied Pannkuk’s motion to dismiss.
¶ 10 On February 28, 2017, 2 Pannkuk filed a motion to reconsider the order denying her
motion to dismiss. Pannkuk asserted that Hage suffered whiplash-type injuries to her neck and
back inside the car she was riding in when it collided with a car in front of her and then was
struck twice from behind by other vehicles. By contrast, Blackmore exited her car uninjured
and was then struck by her own car when it was hit by another car, injuring her left foot, neck,
and back. Pannkuk argued that these different injuries necessarily involved different treating
physicians and different evidence. Pannkuk further argued that she did not depose Blackmore
on her injuries, because Blackmore had not brought any claims against Pannkuk at that time and
the limitations period had expired more than a year earlier. Pannkuk cited McGinnis v. A.R.
Abrams, Inc., 141 Ill. App. 3d 417, 422 (1986), where the Fourth District refused to allow a wife
to add a new claim to her husband’s claim, stating: “[S]ection 2-616(b) [of the Code of Civil
Procedure (Code) (735 ILCS 5/2-616(b) (West 2016))] was not designed to allow new parties to
hitch their wagons to timely filed complaints.” According to Pannkuk, adding Blackmore as a
plaintiff in the fourth amended complaint was nothing more than an attempt to circumvent the
statute of limitations. Hage and Blackmore argued that all defendants had been involved in this
case from the beginning and should have known from the original facts alleged that new claims
could arise.
¶ 11 On September 21, 2017, the court ruled on the motion to reconsider. The court found
that Hage was injured inside Kossier’s vehicle during the chain reaction, while Blackmore had
2
Sometime between October 2016 and February 2017, the original judge in the case, Hon.
David L. Jeffrey, retired, and was replaced by Hon. Glenn R. Schorsch.
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2018 IL App (2d) 170901exited her car and was standing in the roadway and was struck as a pedestrian. The court ruled
that a jury hearing the Hage and Blackmore cases together would, in essence, be hearing two
separate trials. The court found that the proofs would be different and that trying the cases
together would lead to “great confusion.” While the court recognized that there was “an
inextricable connection between the injury to Ms. Blackmore and Ms. Hage,” it granted the
motion to reconsider and dismissed count VI of the fourth amended complaint, based on
McGinnis. Hage and Blackmore timely appealed.
¶ 12 II. ANALYSIS
¶ 13 Plaintiffs contend that the trial court erred in ruling that count VI of the fourth amended
complaint did not relate back, pursuant to section 2-616(b) of the Code, to the date that Hage
filed her original pleading. Pannkuk responds that count VI did not arise out of the same
transaction or occurrence as the original complaint and that the court properly dismissed it.
¶ 14 Section 2-616(b) of the Code defines the relation-back doctrine, the purpose of which is
to “preserve causes of action against loss by reason of technical default unrelated to the merits.”
Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 355 (2008). Section 2-616(b) instructs
that an amended pleading otherwise barred by a statute of limitations shall be held to “relate
back” to the date of the original pleading when (1) the original pleading was timely filed and (2)
the amended pleading grew out of the same transaction or occurrence set up in the original
pleading. 735 ILCS 5/2-616(b) (West 2016). The principal element in determining whether
an amended complaint grew out of the same transaction or occurrence is whether the defendant
was put on notice of the matter covered in the amended complaint by the facts alleged in the
original complaint. Porter, 227 Ill. 2d at 354. The rationale behind the
same-transaction-or-occurrence rule is that a defendant will not be prejudiced by an amendment
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2018 IL App (2d) 170901so long as “his attention was directed, within the time prescribed or limited, to the facts that form
the basis of the claim asserted against him.” (Internal quotation marks omitted.) Porter, 227
Ill. 2d at 355 (quoting Boatmen’s National Bank of Belleville v. Direct Lines, Inc., 167 Ill. 2d 88,
102 (1995)). A statute of limitations and section 2-616(b) are meant to give a defendant a fair
opportunity to investigate the circumstances upon which his liability is based while the facts are
still accessible. Porter, 227 Ill. 2d at 355. In determining whether an amendment relates back
to the original pleading under section 2-616(b), a court should consider the entire record to
establish whether, before the limitations period expired, the defendant was put on clear notice of
the occurrence alleged. Porter, 227 Ill. 2d at 355; see also Wolf v. Meister-Neiberg, Inc., 143
Ill. 2d 44, 47-48 (1991). We review de novo a trial court’s decision as to whether a new claim
related back to the original complaint under section 2-616(b). Porter, 227 Ill. 2d at 353.
¶ 15 Plaintiffs assert, and Pannkuk concedes, that Hage timely filed her original complaint.
As the first element for triggering the relation-back doctrine under section 2-616(b) is met, this
case turns on whether the new claim arose out of the same transaction or occurrence alleged in
the original complaint.
¶ 16 Plaintiffs contend that Hage’s original complaint provided Pannkuk sufficient notice of
Blackmore’s claim in count VI, because the same negligent conduct alleged in the original
complaint formed the basis of Blackmore’s claim. They cite Zeh v. Wheeler, 111 Ill. 2d 266,
279 (1986), where our supreme court opined that, “if the defendant has been made aware of the
occurrence or transaction which is the basis for the claim, he can prepare to meet the plaintiff’s
claim, whatever theory it may be based on.” Plaintiffs argue that Hage’s allegations of
negligence in count II of her original complaint were the basis of Blackmore’s claim in count VI
and that Pannkuk should have been prepared to meet the claim. In response to objections to her
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2018 IL App (2d) 170901motion to amend, Hage argued, “[I]t is absolutely clear that the claims of the two Plaintiffs arose
out of the same nucleus of operative facts.” 3
¶ 17 Zeh involved a single plaintiff who brought a claim of negligence against a landlord for
failing to maintain a common stairway. Zeh, 111 Ill. 2d at 268. After the expiration of the
limitations period, the plaintiff amended her complaint to change the address of the property
where the injury occurred. Zeh, 111 Ill. 2d at 269. Our supreme court considered whether the
facts in the original complaint gave the defendant notice of the occurrence that was the basis of
the amended claim. See Zeh, 111 Ill. 2d at 280-81. The court found that nothing in the record
indicated that the defendant knew or had any notice that the plaintiff’s original complaint was
making a claim for an injury at the correct location. Zeh, 111 Ill. 2d at 281-82. Moreover, the
location was significant because it gave the defendant notice of the occurrence against which it
3
At oral argument, plaintiffs referred to an Illinois Bar Journal article not cited in their
briefs (Amelia S. Buragas, Proximate Cause: Limiting Liability Along the Chain of Causation, 102
Ill. B.J. 88 (2014)), asserting that “it’s pretty clear that the law considers this type of an incident a
single incident unless there is so much time between collisions.” In fact, the article focused on the
determination of proximate cause in Illinois tort cases generally. The author of the article used
automobile accidents as models to illustrate the issues in determining proximate cause, including
one case where an accident that occurred four hours prior to a second accident was found not to be
the proximate cause of the second accident. The author acknowledged the difficulties in such
determinations, concluding, “it is the unique facts of each case that drive the court’s ultimate
decision.” Buragas, supra, at 91. We do not find this article apposite, let alone persuasive, for
the point that Illinois law favors a finding that the events that took place in this case were a single
transaction or occurrence under section 2-616(b) of the Code.
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2018 IL App (2d) 170901was called to defend. Zeh, 111 Ill. 2d at 280. Consequently, the court upheld the trial court’s
dismissal of the amended complaint. Zeh, 111 Ill. 2d at 283.
¶ 18 Plaintiffs also cite Cassidy v. Derek Bryant Insurance Brokers, Ltd., 244 Ill. App. 3d
1054, 1061 (1993), to support their argument that a new plaintiff may be added in an amended
complaint under section 2-616(b). Although the court in Cassidy addressed the circumstances
under which a new plaintiff may be added in an amended complaint, the gist of Cassidy was
whether the new plaintiff’s claim grew out of the same occurrence alleged in the original
complaint: “[T]he claim of a new plaintiff does not grow out of the occurrence alleged in the
original complaint unless the original complaint states facts showing that the misconduct which
caused the original plaintiff’s harm also caused the new plaintiff’s harm ***.” Cassidy, 244 Ill.
App. 3d at 1061. Accordingly, plaintiffs here needed to demonstrate that Blackmore’s injuries
were caused by the same occurrence that caused Hage’s injuries. As discussed below, plaintiffs
failed to construct this nexus.
¶ 19 Plaintiffs additionally cite Sompolski v. Miller, 239 Ill. App. 3d 1087 (1992), Castro v.
Bellucci, 338 Ill. App. 3d 386 (2003), Halberstadt v. Harris Trust & Savings Bank, 55 Ill. 2d 121(1973), and Marek v. O.B. Gyne Specialists II, S.C., 319 Ill. App. 3d 690 (2001). Simply stated,
all of these cases analyzed whether, before the expiration of the limitations period, the
defendants were put on notice of the facts alleged in the amended complaints. They relied on
reasoning similar to that our supreme court outlined in Porter and Zeh. Plaintiffs argue that
these cases favor finding that Pannkuk was on notice: “[W]henever an amendment to a complaint
is based on the very same actions that formed the original complaint, the newly amended
portions to the Complaint successfully relate back to the original claim.” Plaintiffs support this
contention by asserting that the relevant counts in the original and amended complaints
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2018 IL App (2d) 170901contained identical language. They offer for comparison the two counts, beginning with count
II of the original complaint:
“2. That at all times relevant herein [Pannkuk] was operat[ing] her vehicle in a
westerly direction on Route 72 in Forreston Township, Ogle County, Illinois.
3. At said time and place, [Pannkuk] committed one or more or a combination of
the following negligent acts and omissions, to wit:
a) negligently and carelessly failed and omitted to keep a good and
sufficient lookout;
b) negligently and carelessly failed and omitted to keep [her] vehicle
under control;
c) negligently and carelessly drove at a speed greater than was reasonable
and proper in violation of § 11-601(a) of the Illinois Motor Vehicle Code given
the weather conditions;
d) negligently and carelessly failed and omitted to reduce speed to avoid a
collision in violation of § 11-601(a) of the Illinois Motor Vehicle Code;
e) negligently and carelessly followed too close for conditions;
f) negligently and carelessly came to a sudden stop on the roadway;
g) negligently and carelessly failed to use that degree of care required to
keep [her] vehicle from colliding with other vehicles on the roadway.”
Plaintiffs then quoted count VI of the fourth amended complaint:
“2. That at all times relevant herein [Pannkuk] was operating her vehicle in a
westerly direction on Route 72 in Forreston Township, Ogle County, Illinois.
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2018 IL App (2d) 1709013. At said time and place, [Pannkuk] committed one or more or a combination of
the following negligent acts and omissions, to wit:
a) negligently and carelessly failed and omitted to keep a good and
sufficient lookout;
b) negligently and carelessly failed and omitted to keep her vehicle under
control;
c) negligently and carelessly drove at a speed greater than was reasonable
and proper in violation of § 11-601(a) of the Illinois Motor Vehicle Code given
the weather conditions;
d) negligently and carelessly failed and omitted to reduce speed to avoid a
collision in violation of § 11-601(a) of the Illinois Motor Vehicle Code;
e) [n]egligently and carelessly followed too close for conditions;
f) negligently and carelessly came to a sudden stop on the roadway;
g) negligently and carelessly failed to use that degree of care required to
keep [her] vehicle from colliding with other vehicles on the roadway.”
Plaintiffs conclude that, because count VI of the fourth amended complaint relied on the exact
same acts as count II of the original complaint, Pannkuk possessed the necessary information to
build a defense to the amended complaint and it should therefore relate back to the original.
¶ 20 Plaintiffs fail to acknowledge, however, that these conclusions of negligence actually
arose from different alleged acts. Although the above-quoted paragraphs were identical, the
paragraphs that followed alleged different actions by Pannkuk. Paragraph four of count II of
the original complaint read: “[T]he car in which [Hage] was riding *** was hit in the rear by the
vehicle driven by Defendant Pannkuk ***.” Paragraph four of count VI of the fourth amended
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2018 IL App (2d) 170901complaint read: “[Pannkuk’s] car collided with Defendants Ludwig and Cline ***.” Count II
alleged that Pannkuk struck Hage, and count VI alleged that Pannkuk struck Ludwig and Cline.
Far from identical, these allegations of Pannkuk’s actions were in direct conflict.
¶ 21 On the face of the complaints, the injuries arose from different occurrences. As
Pannkuk asserts, the mechanism of each injury was separate and distinct. Hage claimed that
her whiplash-type injuries were sustained while she was riding in Kossier’s car. Blackmore
alleged that her injuries occurred when her own car struck her while she was standing in the
roadway. Plaintiffs suffered different injuries that occurred at different times and required
different providers to treat, and therefore their claims would have required different proofs to
defend. There is nothing in the record to indicate that, before the limitations period expired,
Pannkuk knew or had any notice that Hage’s original complaint, alleging injuries from
Pannkuk’s car striking the car Hage was riding in, would give rise to the new claim that
Pannkuk’s car instead struck Ludwig’s and Cline’s vehicles. Like the plaintiff in Zeh, plaintiffs
in this case attempted to add significant factual allegations when the original complaint had not
put Pannkuk on notice of those potential allegations. Under Cassidy, the misconduct that Hage
alleged in her original complaint was not the same misconduct that Blackmore alleged caused
her injuries, and therefore Blackmore’s claim could not have grown out of the same occurrence.
¶ 22 At oral argument, plaintiffs asserted that the “permutations or combinations of what
could have happened or what did happen are almost infinite.” They argued that section
2-616(b) clearly contemplates adding a new plaintiff and that a new plaintiff would necessarily
have a different claim. But that argument does not address the notice issue. This court asked
how Pannkuk was put on notice that she might be sued for striking the cars of Ludwig and Cline
when the original complaint alleged only that she struck Kossier’s vehicle. Plaintiffs answered
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2018 IL App (2d) 170901that the numerous counterclaims for contribution and the depositions put all defendants,
including Pannkuk, on notice that they might be at least partially liable for others’ injuries.
Even accepting that assertion as true, Pannkuk still would not have been put on notice before the
limitations period expired. See Porter, 227 Ill. 2d at 354-55. The limitations period for these
claims expired on February 1, 2013. On May 16, 2013, more than three months later, Kossier
filed the first counterclaim for contribution. The first deposition in the record was that of
Ludwig, on November 11, 2013. No amount of information that emerged from the
counterclaims or depositions could have put Pannkuk on notice within the limitations period that
she might have to defend against the allegations in count VI of the fourth amended complaint.
Without notice, there can be no relation-back.
¶ 23 In McGinnis, the Fourth District considered whether a new plaintiff’s claim related back
to the original filing. The original plaintiff was a worker who was injured when he tripped over
a door casing at his place of employment. McGinnis, 141 Ill. App. 3d at 418. After the
limitations period had expired, the worker’s wife sought to add a consortium claim, asserting that
it related back to the original transaction or occurrence that caused her husband’s injuries.
McGinnis, 141 Ill. App. 3d at 422. The court held that section 2-616(b) was not designed “to
allow new parties to hitch their wagons to timely filed complaints.” McGinnis, 141 Ill. App. 3d
at 422. While the wife’s cause of action was inextricably connected to her husband’s, she was
still a new party with a separate complaint that did not relate back to the original pleading.
McGinnis, 141 Ill. App. 3d at 422. Similarly, here, Blackmore is a new party with a new cause
of action. She would have been barred from adding Pannkuk to her own complaint against
Cline, because the limitations period had long since expired. She cannot now circumvent the
statute of limitations by hitching her wagon to Hage’s timely filed complaint.
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2018 IL App (2d) 170901¶ 24 III. CONCLUSION
¶ 25 For the foregoing reasons, the judgment of the circuit court of Stephenson County is
affirmed.
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