Relf v. Shatayeva

ILLINOIS OFFICIAL REPORTS

Supreme Court

Relf v. Shatayeva, 2013 IL 114925

Caption in Supreme SANDRA RELF, Appellee, v. NATASHA SHATAYEVA, as Special

Court: Adm’r of the Estate of Joseph Grand Pre, Jr., Appellant.

Docket No. 114925

Filed October 18, 2013

Held After an automobile accident defendant died and plaintiff, unaware of

(Note: This syllabus this, was unable to obtain service in the timely action, the statutory two-

constitutes no part of year extension of the limitation period if a decedent’s personal

the opinion of the court representative is substituted as defendant was not available where

but has been prepared plaintiff used the unauthorized procedure of successfully asking the

by the Reporter of circuit court to appoint an employee of plaintiff’s attorney as “special

Decisions for the administrator”—limitations dismissal upheld.

convenience of the

reader.)

Decision Under Appeal from the Appellate Court for the First District; heard in that court

Review on appeal from the Circuit Court of Cook County, the Hon. James E.

Snyder, Judge, presiding.

Judgment Appellate court judgment reversed.

Circuit court judgment affirmed.

Counsel on Ellen J. O’Rourke and Jean M. Bradley, of Bruce Farrel Dorn &

Appeal Associates, of Chicago, for appellant.

David B. Nemeroff and Adam S. Goldfarb, of Chicago, for appellee.

Cynthia S. Kisser, of Lawrence H. Hyman & Associates, of Chicago, for

amicus curiae Illinois Trial Lawyers Association.

Justices JUSTICE KARMEIER delivered the judgment of the court, with opinion.

Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the

judgment and opinion.

Chief Justice Kilbride dissented, with opinion.

OPINION

¶1 Plaintiff, Sandra Relf, brought an action against Joseph Grand Pre, Jr., in the circuit court

of Cook County to recover damages for personal injuries she sustained in a motor vehicle

accident. At the time plaintiff filed her action, Mr. Grand Pre was deceased, his will had been

admitted to probate, and letters of office had been issued to his son to serve as independent

administrator of his estate. Claiming she was not aware of Mr. Grand Pre’s death when she

filed suit, and without notice to the estate, the independent administrator, or Grand Pre’s

heirs and legatees, plaintiff subsequently sought and was granted permission to have a

secretary in her attorney’s office appointed as “special administrator” to defend Mr. Grand

Pre’s estate against her claims.

¶2 Substitution of the “special administrator” did not occur until after the two-year

limitations period for personal injury actions had expired. The “special administrator”

therefore moved to dismiss plaintiff’s cause of action as time-barred under section 2-619 of

the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)). The circuit court found the

“special administrator’s” motion to be meritorious and dismissed, rejecting plaintiff’s

arguments that the action should be deemed timely under the provisions of section 13-209

of the Code of Civil Procedure (735 ILCS 5/13-209 (West 2010)) which govern the

procedures to be followed where a person against whom a cause of action may be brought

is deceased. The appellate court reversed and remanded to the circuit court for further

proceedings. 2012 IL App (1st) 112071. We granted defendant leave to appeal (Ill. S. Ct. R.

315 (eff. May 1, 2013)) and allowed the Illinois Trial Lawyers Association to file a brief

amicus curiae pursuant to Illinois Supreme Court Rule 345 (Ill. S. Ct. R. 345 (eff. Sept. 20,

2010)). For the reasons that follow, we now reverse the appellate court’s judgment and affirm

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the judgment of the circuit court.

¶3 BACKGROUND

¶4 The motor vehicle accident which gave rise to this litigation occurred in February of

2008. In February of 2010, just as the two-year statute of limitations for personal injury

actions (735 ILCS 5/13-202 (West 2010)) was about to expire, plaintiff filed this action

against Mr. Grand Pre in the circuit court of Cook County to recover damages for the injuries

she sustained in the accident.

¶5 Mr. Grand Pre was the sole defendant named in the complaint. At the time the complaint

was filed, however, Mr. Grand Pre was actually deceased. He had passed away on April 25,

2008, shortly after the accident.

¶6 The record shows that a paid death notice giving the circumstances of Mr. Grand Pre’s

death was published in the Chicago Tribune on April 30, 2008. The record further shows that

probate proceedings involving his estate were initiated in the circuit court of Cook County

in August of 2008. Mr. Grand Pre’s will was admitted to probate in September of 2008 and,

at the same time, letters of office were issued to his son, Gary, to serve as independent

administrator of Mr. Grand Pre’s estate. These were all matters of public record.

¶7 The sheriff failed to effectuate service of process on Mr. Grand Pre, who, as we have just

noted, was dead. Still not realizing that Mr. Grand Pre was deceased, plaintiff then sought

and was granted leave to have a special process server appointed to attempt service on him.

The special process server quickly discovered that Mr. Grand Pre was no longer living and

conveyed that information to plaintiff on May 17, 2010. Plaintiff took no immediate

corrective action in response to the special process server’s news, and on May 24, 2010, the

circuit court dismissed plaintiff’s cause of action for lack of diligence in attempting to

effectuate service.1 Because plaintiff’s failure to exercise diligence occurred after the

governing limitations period had expired, the dismissal was with prejudice. Ill. S. Ct. R.

103(b) (eff. July 1, 2007).

¶8 On September 24, 2010, plaintiff asked the circuit court to set aside its order dismissing

the case for lack of diligence. In a separate motion filed the same day, plaintiff also asked the

court to take notice of Mr. Grand Pre’s death, to appoint a “special administrator” for the

purposes of defending plaintiff’s action against him, and to grant plaintiff leave to file an

amended complaint.

¶9 In support of her request for a “special administrator,” plaintiff asserted that she had not

learned of Mr. Grand Pre’s death until receiving notice of it from the special process server

and that she was unaware as to whether “any personal representative has been appointed by

the Estate of [Mr. Grand Pre].” Plaintiff proposed that Natasha Shatayeva, an employee/legal

assistant of her lawyer, be appointed to serve “as the Special Administrator of the Estate of

[Mr. Grand Pre], deceased.” Shatayeva was the attorney’s secretary.

1

At this point in the proceedings, it appears that the circuit court did not know the reason

Grand Pre had not been served, only that service had not been accomplished.

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¶ 10 Following a hearing, the circuit court granted all of plaintiff’s requests. It vacated the

dismissal and reinstated the action, “spread [Mr. Grand Pre’s] death of record, appointed

Natasha Shatayeva “as the Special Administrator of the Estate of [Mr. Grand Pre], deceased,”

and granted plaintiff leave to file an amended complaint, which plaintiff promptly did. The

circuit court’s order appointing Shatayeva as “special administrator” gave no statutory basis

for that action and none was set forth in plaintiff’s motion.

¶ 11 Once Shatayeva was designated by the court to represent Mr. Grand Pre’s estate, she

moved to dismiss plaintiff’s cause of action pursuant to Supreme Court Rule 103(b) (Ill. S.

Ct. R. 103(b) (eff. July 1, 2007)) on the grounds that plaintiff had “failed to take substantive

efforts to serve Defendant with the lawsuit timely [sic]” and that she, Shatayeva, was not

served “until on or about October 7, 2010, over seven months after the statute of limitation

[had run].” That motion was denied by the court in February of 2011. Thereafter, plaintiff

was allowed to file a second amended complaint correcting an error in her previous pleadings

regarding Mr. Grand Pre’s name.

¶ 12 Plaintiff’s second amended complaint was filed in March of 2011. Shatayeva responded

by filing a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735

ILCS 5/2-619 (West 2010)), on the grounds that plaintiff’s cause of action was not

commenced within the time limited by law. Although plaintiff’s original complaint was filed

in the circuit court just within the two-year limitation period for actions for damages for an

injury to the person (735 ILCS 5/13-202 (West 2010)), that complaint, as we have discussed,

was directed against Mr. Grand Pre himself even though he had already been dead for

approximately a year and 10 months. Shatayeva argued that under Illinois law, a dead person

is a nonexistent entity and cannot be a party to a lawsuit. Correspondingly, a lawsuit

instituted against a person who is already dead at the time the suit is filed is a nullity and void

ab initio. Shatayeva asserted that the complaint naming Mr. Grand Pre therefore could not

operate to preserve plaintiff’s claims arising from the February 2008 accident.

¶ 13 Shatayeva further argued that the General Assembly has provided litigants with a

mechanism for bringing a cause of action where, as here, a person against whom an action

may be brought dies before expiration of the time limit for commencement of that action, and

the cause of action survives and is not otherwise barred. Shatayeva asserted, however, that

plaintiff failed to follow the statutory requirements in this case.

¶ 14 Under section 13-209(b)(1) of the Code of Civil Procedure (735 ILCS 5/13-209(b)(1)

(West 2010)), if an estate has been opened for the decedent and a personal representative has

been appointed by the court, the “action may be commenced against his or her personal

representative after the expiration of the time limited for the commencement of the action,

and within 6 months after the person’s death.” If, on the other hand, “no petition has been

filed for letters of office for the deceased’s estate,” then under section 13-209(b)(2) of the

Code of Civil Procedure (735 ILCS 5/13-209(b)(2) (West 2010)), “the court, upon the

motion of a person entitled to bring an action and after the notice to the party’s heirs or

legatees as the court directs and without opening an estate, may appoint a special

representative for the deceased party for the purposes of defending the action.”

¶ 15 In this case, a petition for letters of office for Mr. Grand Pre’s estate had been filed and

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a personal representative, Mr. Grand Pre’s son, Gary, had been appointed by the circuit. As

between the foregoing provisions, section 13-209(b)(1) rather than section 13-209(b)(2) was

therefore the relevant provision. Under that statute, plaintiff could have preserved her claims

arising from the collision involving Mr. Grand Pre, had she known of Grand Pre’s death, by

bringing the action against the personal representative appointed by the court in the probate

proceeding and doing so within six months of Mr. Grand Pre’s death. But plaintiff did

neither of those things. Shatayeva therefore asserted that section 13-209(b)(1) could not be

applied here.

¶ 16 Shatayeva further argued that the legislature has provided an additional safe harbor to aid

plaintiffs where, as is claimed by plaintiff’s counsel to be the situation here, the action is

brought directly against the deceased person and the plaintiff does not learn that the

defendant is actually dead until the limitations period has expired. In such circumstances, and

assuming the cause of action survives and is not otherwise barred, section 13-209(c) of the

Code of Civil Procedure (735 ILCS 5/13-209(c) (West 2010)) allows the plaintiff to proceed

directly against the personal representative, notwithstanding the fact that the claims would

otherwise be untimely. That option, however, is subject to four conditions. The plaintiff must

proceed “with reasonable diligence to move the court for leave to file an amended complaint,

substituting the personal representative as defendant.” 735 ILCS 5/13-209(c)(1) (West 2010).

The plaintiff must also proceed “with reasonable diligence to serve process upon the personal

representative.” 735 ILCS 5/13-209(c)(2) (West 2010). If process is served more than six

months after issuance of letters of office to the personal representative, the “liability of the

estate is limited as to recovery to the extent the estate is protected by liability insurance.” 735

ILCS 5/13-209(c)(3) (West 2010). Finally, “[i]n no event can a party commence an action

under this subsection (c) unless a personal representative is appointed and an amended

complaint is filed within 2 years of the time limited for the commencement of the original

action.” 735 ILCS 5/13-209(c)(4) (West 2010).

¶ 17 Although a personal representative had been appointed in the matter before us in

September of 2008, plaintiff never moved the court to have that personal representative

substituted as a defendant and never attempted service on that personal representative.

Instead, the plaintiff arranged to have one of her attorney’s employees, his secretary,

appointed “special administrator.” Shatayeva asserted that where, as here, a personal

representative has already been appointed in probate proceedings, appointment of a separate

special representative for the deceased party is improper. Accordingly, Shatayeva asserted,

the pleadings naming her as a party are impermissible and should be stricken and the case

should be dismissed as time-barred.

¶ 18 The circuit court found Shatayeva’s arguments to be meritorious and granted her motion

to dismiss. The appellate court reversed and remanded. 2012 IL App (1st) 112071. It held

that because plaintiff was unaware of Mr. Grand Pre’s death at the time she filed her

complaint, section 13-209(c) of the Code of Civil Procedure was the governing provision in

this case and that section 13-209(b) was inapplicable. 2012 IL App (1st) 112071, ¶¶ 23-25.

It further held that plaintiff’s actions in securing the appointment of Shatayeva as “special

administrator” when and how she did satisfied the requirements of section 13-209(c) (2012

IL App (1st) 112071, ¶ 26) and were sufficient to preserve the viability of plaintiff’s

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otherwise untimely cause of action. It therefore reversed and remanded for further

proceedings. This appeal followed.

¶ 19 ANALYSIS

¶ 20 This case was decided by the circuit court on a motion to dismiss pursuant to section

2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)). A motion to dismiss

under section 2-619 admits the legal sufficiency of the plaintiff’s complaint, but asserts an

affirmative defense or other matter that avoids or defeats the plaintiff’s claim. DeLuna v.

Burciaga, 223 Ill. 2d 49, 59 (2006). Here, the contention was that the action was not

commenced within the time limited by law. 735 ILCS 5/2-619(a)(5) (West 2010).

¶ 21 In reviewing whether a cause of action is untimely, we are not bound by the conclusions

of either the circuit or the appellate court. Whether a cause of action was properly dismissed

under section 2-619(a)(5) of the Code of Civil Procedure based on the statute of limitations

is a matter we review de novo. Ferguson v. City of Chicago, 213 Ill. 2d 94, 99 (2004). In

addition, whether plaintiff’s cause of action was timely in this case turns on how the

provisions of section 13-209 should be interpreted. Statutory construction presents a question

of law. Our review is de novo for this reason as well. Township of Jubilee v. State of Illinois,

2011 IL 111447, ¶ 23.

¶ 22 We begin our review with the obvious and unfortunate reality that the actual alleged

tortfeasor, Mr. Grand Pre, is no longer with us. He died shortly after the motor vehicle

accident which gave rise to this case, and was long dead by the time plaintiff filed her initial

complaint in February of 2010. Under the common law of Illinois, a dead person is a

nonexistent entity and cannot be a party to a suit. Volkmar v. State Farm Mutual Automobile

Insurance Co., 104 Ill. App. 3d 149, 151 (1982). If a person is already dead when an action

is asserted against him or her, the proceedings will not invoke the trial court’s jurisdiction,

and any judgment entered in the case will be a nullity. Danforth v. Danforth, 111 Ill. 236,

240 (1884); Bricker v. Borah, 127 Ill. App. 3d 722, 724 (1984). For these reasons, plaintiff’s

initial complaint naming Mr. Grand Pre as the defendant did not operate to preserve

plaintiff’s claims arising from her collision with Mr. Grand Pre’s vehicle in February of

2008. Those claims remain viable if and only if plaintiff’s subsequent action in substituting

Shatayeva as the defendant, which did not occur until the normal two-year limitations period

for personal injury actions had already expired, operated to preserve plaintiff’s otherwise

untimely cause of action.

¶ 23 The parties agree that resolution of this question rests squarely on the construction and

application of section 13-209 of the Code of Civil Procedure (735 ILCS 5/13-209 (West

2010)). The principles governing our construction of statutes are well established. The

primary goal in construing a statute is to ascertain and give effect to the legislature’s intent.

The best indication of that intent is the language of the statute. Wilkins v. Williams, 2013 IL

114310, ¶ 14. In construing that language, words and phrases should not be considered in

isolation. Rather, the language in each section of the statute must be examined in light of the

statute as a whole, which is construed in conjunction with other statutes touching on the same

or related subjects. Carter v. SSC Odin Operating Co., 2012 IL 113204, ¶ 37.

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¶ 24 Section 13-209 appears in article XIII of the Code of Civil Procedure (735 ILCS 5/13-101

et seq. (West 2010)), which deals with limitations on actions. Statutes of limitation, like

other statutes, must be construed in the light of their objectives. The basic policy of such

statutes is to afford a defendant a fair opportunity to investigate the circumstances upon

which liability against him is predicated while the facts are accessible. Geneva Construction

Co. v. Martin Transfer & Storage Co., 4 Ill. 2d 273, 289-90 (1954). The General Assembly

has recognized, however, that injustice might result when a party by or against whom a cause

of action might be brought dies before the otherwise applicable limitations period has

expired. It is that problem to which section 13-209 is addressed.

¶ 25 Section 13-209 is divided into three sections. Subsection (a) (735 ILCS 5/13-209(a)

(West 2010)) governs when and how a case may proceed where the party who dies prior to

expiration of the limitations period is the plaintiff, a situation not present here. Where the

deceased party is the defendant, subsections (b) (735 ILCS 5/13-209(b) (West 2010)) or (c)

(735 ILCS 5/13-209(c) (West 2010)) come into play.

¶ 26 Subsection (b) sets forth the basic procedures and time requirements that must be

followed in situations where a person against whom an action may be filed dies before the

limitations period runs out, the action survives the person’s death, and it is not otherwise

barred. If no petition has been filed for letters of office for the decedent’s estate, the court

may appoint a “special representative” for the deceased party for the purposes of defending

the action. 735 ILCS 5/13-209(b)(2) (West 2010). Otherwise, i.e., if a petition has been filed

for letters of office for the decedent’s estate, an action may be commenced against the

“personal representative” appointed by the court. 735 ILCS 5/13-209(b)(1) (West 2010).

¶ 27 The provisions of section 13-209(b) presuppose that the plaintiff is aware of the

defendant’s death at the time he or she commences the action. A separate set of requirements

apply where, as in this case, the defendant’s death is not known to plaintiff before expiration

of the limitations period and, unaware of the death, the plaintiff commences the action

against the deceased defendant directly. This scenario is governed by section 13-209(c) (735

ILCS 5/13-209(c) (West 2010)). Assuming that the cause of action survives the defendant’s

death and is not otherwise barred, section 13-209(c) permits a plaintiff to preserve his or her

cause of action by substituting the deceased person’s “personal representative” as the

defendant. As set forth earlier in this opinion, however, that option is subject to certain

conditions. The plaintiff must proceed with reasonable diligence in both “mov[ing] the court

for leave to file an amended complaint, substituting the personal representative as defendant”

(735 ILCS 5/13-209(c)(1) (West 2010)) and “serv[ing] process upon the personal

representative” (735 ILCS 5/13-209(c)(2) (West 2010)). If process is served more than six

months after issuance of letters of office to the personal representative, “the liability of the

estate is limited as to recovery to the extent the estate is protected by liability insurance.” 735

ILCS 5/13-209(c)(3) (West 2010). Moreover, “[i]n no event can a party commence an action

under this subsection (c) unless a personal representative is appointed and an amended

complaint is filed within 2 years of the time limited for the commencement of the original

action.” 735 ILCS 5/13-209(c)(4) (West 2010).

¶ 28 The appellate court here concluded that section 13-209(c) (735 ILCS 5/13-209(c) (West

2010)) governs this case. We believe this conclusion is well founded. Section 13-209(c)

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deals specifically and unambiguously with the situation where a party has commenced an

action against a deceased person and that person’s death is unknown to the party before the

statute of limitations expires. Augustus v. Estate of Somers, 278 Ill. App. 3d 90, 98 (1996).

That is precisely the situation before us here. Plaintiff sued Mr. Grand Pre before the two-

year limitations period for personal injury actions had run out, though just barely, and

proceeded against him directly because she did not yet know that he had died a year and 10

months earlier. It was not until several months after the statute of limitations had expired that

she became aware of his death. Section 13-209(c) therefore controls. See Walker v. Ware,

2013 IL App (1st) 122364, ¶ 20.

¶ 29 Why plaintiff was not yet aware of Mr. Grand Pre’s death when she filed suit is unclear.

The record shows that a paid death notice had been published in the newspaper, that probate

proceedings had commenced, and that information regarding Mr. Grand Pre’s death and the

related probate proceedings was readily available through the circuit clerk’s office and

online. But whether plaintiff should have known of Mr. Grand Pre’s death is not the

question. Under the express terms of section 13-209(c), the issue is simply whether Mr.

Grand Pre’s death was unknown to plaintiff. The reasonable diligence expressly required by

the legislature with respect to some actions under section 13-209(c) is notably absent with

respect to knowledge of a defendant’s death. That being so, we cannot rewrite the statute to

add such a provision. Where a statutory enactment is clear and unambiguous, a court is not

at liberty to depart from the plain language and meaning of the statute by reading into it

exceptions, limitations or conditions that the legislature did not express. Solich v. George &

Anna Portes Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 83 (1994).

¶ 30 We turn then to the central issue in this case: whether plaintiff’s actions once she did

learn of Mr. Grand Pre’s death complied with the conditions required by section 13-209(c).

If those conditions were not satisfied, the circuit court was correct to conclude that section

13-209(c) could not be invoked by plaintiff in aid of her otherwise invalid and untimely

cause of action. If the statute’s conditions were met, as the appellate court believed,

plaintiff’s cause of action remains viable and the circuit court should not have dismissed it.

¶ 31 There is no dispute that plaintiff’s cause of action falls within the category of cases

covered by section 13-209(c) in that it was commenced “against a deceased person whose

death [was] unknown to [the plaintiff] before the expiration of the time limited for the

commencement thereof, and the cause of action survive[d], and is not otherwise barred.” 735

ILCS 5/13-209(c) (West 2010). Nor is there any dispute that plaintiff therefore had the right

to commence an action against Mr. Grand Pre’s “personal representative,” subject to the

various specific conditions set forth in section 13-209(c), including that she proceed with

reasonable diligence “to move the court for leave to file an amended complaint, substituting

the personal representative as defendant” (735 ILCS 5/13-209(c)(1) (West 2010)) and “to

serve process upon the personal representative” (735 ILCS 5/13-209(c)(2) (West 2010)). The

real question in this case is whether Shatayeva qualifies as a “personal representative” within

the meaning of the statute. We believe that she does not.

¶ 32 The Code of Civil Procedure does not define the term “personal representative” for

purposes of section 13-209. It is therefore appropriate for us to consult a dictionary to

determine its plain meaning. People v. Perry, 224 Ill. 2d 312, 330 (2007). In its most general

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sense, “personal representative” refers to any “[a] person who manages the legal affairs of

another because of incapacity or death.” Black’s Law Dictionary 1416 (9th ed. 2009). In the

particular case of persons who have died leaving estates which must be settled and

distributed, the situation before us here, “personal representative” encompasses both of two

basic categories of individuals: executors, who are named in the decedent’s will, and

administrators, who are appointed where the decedent is intestate or else left a will but has

no executor. Id. at 1416-17; 33 C.J.S. Executors and Administrators § 3 (2009); Hayden v.

Wheeler, 33 Ill. 2d 110, 112 (1965); Johnson v. Van Epps, 110 Ill. 551, 559-60 (1884).

¶ 33 The rules governing executors and administrators are set forth in the Probate Act of 1975

(755 ILCS 5/1-1 et seq. (West 2010)). Under the Act, executors and administrators share a

common trait. They are both officers of the court to whom letters of office are issued. In the

case of executors, these are letters testamentary. 755 ILCS 5/6-8 (West 2010). In the case of

administrators, they are letters of administration. 755 ILCS 5/9-2 (West 2010). The Probate

Act also recognizes “administrator to collect” as a type of representative in addition to

executors and administrators. 755 ILCS 5/1-2.15 (West 2010) . These differ from regular

administrators (see 755 ILCS 5/10-1 et seq. (West 2010)), but also require issuance of letters

of office. See 755 ILCS 5/10-1 (West 2010). Issuance of letters of office would therefore

appear to be a hallmark of “personal representatives” as that term is commonly understood

when applied to situations involving estates which must be settled and distributed following

a person’s death.

¶ 34 The terminology employed by the General Assembly in section 13-209 of the Code of

Civil Procedure (735 ILCS 5/13-209 (West 2010)) is consistent with this usage. In setting

forth the requirements which must be followed in order to preserve a cause of action when

a party by or against whom the action might be brought dies before the otherwise applicable

limitations period has expired, section 13-209 of the Code of Civil Procedure (735 ILCS

5/13-209 (West 2010)) distinguishes between “representatives” or “personal representatives,”

on the one hand, and “special representatives,” on the other. Where the legislature has

employed certain language in one part of a statute and different language in another, we may

assume different meanings were intended (State Bank of Cherry v. CGB Enterprises, Inc.,

2013 IL 113836, ¶ 56), and the difference in meaning here is apparent. “Special

representatives” are referenced only with respect to situations where “no petition for letters

of office for the decedent’s estate has been filed.” See 735 ILCS 5/13-209(a)(2), (b)(2) (West

2010). In all other situations, which by inference must be whenever petitions for letters of

office have been filed, the statute refers to “representatives” or “personal representatives.”

¶ 35 Plaintiff would have us treat “personal representatives” and “special representatives” as

interchangeable, but her approach is incompatible with the history of section 13-209. Prior

to its amendment by Public Act 90-111 in 1997, section 13-209 only made provision for

actions by or against “personal representatives.” See 735 ILCS 5/13-209(a), (b), (c) (West

1996). No mention was made of “special representatives.” The references to “special

representatives” were all added at the same time through Public Act 90-111, and in each

instance, the new provisions allowing appointment of “special representatives” to bring or

defend against actions were preceded by the conditional clauses “if no petition for letters of

office for the decedent’s estate has been filed” (735 ILCS 5/13-209(a)(2) (West 2010)) and

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“if no petition has been filed for letters of office for the deceased’s estate” (735 ILCS 5/13-

209(b)(2) (West 2010)). By adding the new term “special representative” and expressly

limiting use of “special representatives” to situations where no petition for letters of office

had been filed, the General Assembly must have understood the preexisting statutory term

“personal representatives” as referring to individuals to whom letters of office had been

issued. No other interpretation of the statutory change is tenable.

¶ 36 That a “personal representative” means one appointed pursuant to a petition for issuance

of letters of office is confirmed by section 13-209(c) (735 ILCS 5/13-209(c) (West 2010)),

the specific provision governing this case. As noted earlier in this opinion, that subsection

affords litigants an opportunity to save an otherwise time-barred claim where they have sued

a deceased person whose death was unknown to them before expiration of the applicable

statute of limitations. To avail themselves of this opportunity, however, litigants must

“proceed[ ] with reasonable diligence to serve process upon the personal representative” (735

ILCS 5/13-209(c)(2) (West 2010)) and “[i]f process is served more than 6 months after the

issuance of letters of office, liability of the estate is limited as to recovery to the extent the

estate is protected by liability insurance” (735 ILCS 5/13-209(c)(3) (West 2010)). If

“personal representative” was not intended by the legislature to refer specifically to an

individual appointed to settle and distribute an estate pursuant to a petition for issuance of

letters of office, whether as an executor or as an administrator, using the time when letters

of office issued as a point of demarcation regarding the scope of the estate’s liability would

serve no purpose.

¶ 37 That “personal representative” as used in section 13-209 was intended by the legislature

to refer specifically to individuals appointed to settle and distribute a decedent’s estate

pursuant to a petition for issuance of letters of office is also consistent with how the term is

used in section 2-1008(b) of the Code of Civil Procedure (735 ILCS 5/2-1008(b) (West

2010)), which deals with the related question of what happens when a party to an action dies

after suit has been filed. There, as in section 13-209, the term “special representative” is used

when referring to individuals appointed by the court in situations where no petition for letters

of office for the decedent’s estate has been filed. 735 ILCS 5/2-1008(b)(1), (b)(2) (West

2010). Where a petition for letters of office has been filed, the relevant entity is the “personal

representative,” just as it is under section 13-209. See 735 ILCS 5/2-1008(b)(2) (West 2010).

¶ 38 That a “personal representative” refers to someone appointed pursuant to a petition for

letters of office while “special representative” designates someone appointed by the court in

situations where no petition for letters of office for the decedent’s estate has been filed is

further supported by the fact that section 2-1008(b) includes an express provision for

substituting the personal representative for the special representative “[a]t any time that an

estate is opened with a representative other than the special representative.” 735 ILCS 5/2-

1008(b)(1) (West 2010). If the terms “personal representatives” and “special representatives”

were synonymous and freely interchangeable, this provision would make no sense.

¶ 39 When construing statutes, it is appropriate to consider similar and related enactments,

though not strictly in pari materia. We must presume that several statutes relating to the

same subject are governed by one spirit and a single policy, and that the legislature intended

the several statutes to be consistent and harmonious. Wade v. City of North Chicago Police

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Pension Board, 226 Ill. 2d 485, 511-12 (2007). Accordingly, we believe that section 2-

1008(b) of the Code of Civil Procedure (735 ILCS 5/2-1008(b) (West 2010)) supports our

interpretation of section 13-209(c).

¶ 40 So, too, does section 6-139 of the Code of Civil Procedure (735 ILCS 5/6-139 (West

2010)). That statute deals with the death of the plaintiff in an action for ejectment. It is clear

from the text of the law that when it refers to “the decedent’s personal representatives,” it

means individuals to whom letters of office have been granted by the court under the Probate

Act. We know that is what it means because “the granting of letters of office to them” is one

of the things that must be demonstrated in order for a personal representatives to step into

the shoes of a “plaintiff in ejectment [who] dies after issue joined or judgment entered

therein.” 735 ILCS 5/6-139 (West 2010).

¶ 41 In this case, a petition for issuance of letters of office was filed pursuant to the Probate

Act, but it was filed by Mr. Grand Pre’s son, and it was the son to whom the letters of office

were granted. Mr. Grand Pre’s son was therefore his “personal representative” under section

13-209(c) of the Code of Civil Procedure (735 ILCS 5/13-209(c) (West 2010)). Shatayeva

was not. Shatayeva did not seek and was not granted either letters testamentary or letters of

administration to settle and distribute Mr. Grand Pre’s estate. She was merely appointed at

plaintiff’s request to serve as “special administrator.”

¶ 42 Why plaintiff referred to Shatayeva’s appointment using the term “special administrator”

is unclear. She cited no statutory authority for that request in her motion, and the term is not

used anywhere in section 13-209. It may be because plaintiff was thinking in terms of an

earlier verison of section 2-1008(b). We surmise this because section 2-1008(b) deals with

a related problem, as we have already noted, and prior to its amendment in 1997, it used the

term “special administrator” when referring to an individual appointed in cases where no

petition for issuance of letters of office had been issued (735 ILCS 5/2-1008(b) (West 1996)),

instead of the current phrase, “special representative.”

¶ 43 As previously discussed, section 2-1008(b) itself can have no direct application here. It

applies where a party dies while a case is already pending. It may not be used where, as in

this case, a defendant dies before the action is instituted. Greene v. Helis, 252 Ill. App. 3d

957, 961 (1993); Sepeda v. LaBarre, 303 Ill. App. 3d 595, 598 (1999).2

¶ 44 While section 2-1008(b) is not directly applicable, case law construing the previous

version of the law confirms our interpretation of the law. A “special administrator” appointed

under the former version of section 2-1008(b) of the Code of Civil Procedure to defend

against an action was not the equivalent of an administrator appointed pursuant to a petition

2

Gaddy v. Schulte, 278 Ill. App. 3d 488 (1996), a panel of the Fifth District of the Appellate

Court did sanction the use of section 2-1008 of the Code of Civil Procedure for appointment of a

“special administrator” to defend an action where the alleged tortfeasor died before the action was

instituted and indicated that a person could qualify as a personal representative under section 13-209

(735 ILCS 5/13-209 (West 2010)) even though letters of office had not issued to that person under

the Probate Act. Gaddy has not been followed by the courts of Illinois and for the reasons discussed

in this opinion, it is incorrect on both counts.

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for issuance of letters of office under the Probate Act. Hannah v. Gilbert, 207 Ill. App. 3d

87, 90 (1990). No letters of office were issued to a “special administrator,” and “special

administrators” had no authority to distribute assets of a decedent’s estate. Id. In the parlance

of the current statute, they were therefore equivalent to “special representatives,” not

“personal representatives.” Accordingly, appointment of a “special administrator” would not

operate to trigger the provisions of section 13-209 of the Code of Civil Procedure permitting

actions against an individual appointed to settle and distribute an estate pursuant to a petition

for issuance of letters of office, i.e., personal representatives. See Greene v. Helis, 252 Ill.

App. 3d at 961; Lindsey v. Special Administrator of the Estate of Phillips, 219 Ill. App. 3d

372, 376 (1991); Bricker v. Borah, 127 Ill. App. 3d 722, 725 (1984).

¶ 45 In Keller v. Walker, 319 Ill. App. 3d 67 (2001), a panel of the Third District of the

Appellate Court did conclude that the plaintiffs in a personal injury action could satisfy the

requirements of section 13-209(c) by seeking appointment of a special administrator in a case

where the alleged tortfeasor had died without a will and no estate had been opened. In

reaching that conclusion, however, the court did not recognize, consider or discuss the

significance of section 13-209(c)’s use of the term “personal representative”; that a special

administrator would only qualify as a “special representative,” not a “personal

representative”; or that under section 13-209(c), as throughout the statutory scheme enacted

by our legislature, a “personal representative” refers specifically to an individual appointed

to settle and distribute an estate pursuant to a petition for issuance of letters of office. There

is no indication in Keller that these problems were even raised. The decision is therefore of

no value in the resolution of this case. See Village of Lake in the Hills v. Laidlaw Waste

Systems, Inc., 160 Ill. App. 3d 427, 431 (1987) (no precedent established on points neither

argued nor discussed in an opinion). Keller is also inapposite because, of course, an estate

had been opened in this case, a petition for issuance of letters of office had been filed and a

personal representative had been appointed long before plaintiff first instituted her cause of

action.3

¶ 46 Under the plain language of section 13-209(c), plaintiff was obligated to proceed against

Mr. Grand Pre’s duly appointed personal representative, substituting him as the defendant,

once she learned of Mr. Grand Pre’s death if she wished to preserve her otherwise invalid

cause of action. She did not. Instead, as we have noted, she elected to have her lawyer’s

secretary appointed “special administrator” and sued her instead. Under these circumstances,

the circuit court was correct when it concluded that section 13-209(c) could not properly be

invoked by plaintiff to preserve her otherwise untimely cause of action.

¶ 47 Practitioners familiar with trusts and estates will recognize that the Probate Act itself

makes provision for appointment of special administrators under limited circumstances. They

will also recognize, however, that those provisions are of no use to plaintiff here and

3

Minikon v. Escobedo, 324 Ill. App. 3d 1073 (2001), another appellate decision involving

section 13-209(c), concerned the relationship between that statute and 2-616(d) of the Code of Civil

Procedure (735 ILCS 5/2-616(d) (West 2010)) and whether plaintiff had met section 13-209(c)’s due

diligence requirements. No issue was raised as to whether a “special administrator” qualified as a

“personal representative” and it is distinguishable from this case for the same reasons that Keller is.

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therefore cannot alter the outcome of this case.

¶ 48 Section 8-1(e) of the Act (755 ILCS 5/8-1(e) (West 2010)) authorizes appointment of a

special administrator to defend a proceeding to contest the validity of a will or prosecute an

appeal from a judgment in a will contest case if the decedent’s representative fails or refuses

to do so or if there is no representative to act when the contest is brought. Similarly, section

8-2(e) of the Act (755 ILCS 5/8-2(e) (West 2010)) authorizes appointment of a special

administrator to defend a proceeding to probate a will or prosecute an appeal where

admission of a will to probate has been denied if the decedent’s representative fails or refuses

to do so when ordered by the court or if there is no representative then acting. Those

circumstances are clearly not present in this case. There is no will contest, admission of the

will to probate was not denied, a representative for defendant was already in place, and there

is no indication that the representative failed or refused to undertake any of his obligations.

¶ 49 The Probate Act also allows appointment of a special administrator to represent the estate

in a proceeding for issuance of a citation on behalf of the estate in cases where a person is

believed “(1) to have concealed, converted or embezzled or to have in his possession or

control any personal property, books of account, papers or evidences of debt or title to lands

which belonged to a person whose estate is being administered in that court or which belongs

to his estate or to his representative or (2) to have information or knowledge withheld by the

respondent from the representative and needed by the representative for the recovery of any

property by suit or otherwise” (755 ILCS 5/16-1(a) (West 2010)), and decedent’s personal

representative is the respondent in the case (755 ILCS 5/16-1(c) (West 2010)). Again,

however, these circumstances are not present here. This is not a citation proceeding on behalf

of the estate, and the personal representative named by Mr. Grand Pre, his son, is not a

respondent.

¶ 50 Finally, section 18-8 of the Act (755 ILCS 5/18-8 (West 2010)) calls for appointment of

a special administrator in cases where the decedent’s representative or the representative’s

attorney has a claim against the estate. This situation is not before us either. The claim here

is not being pressed by Mr. Grand Pre’s personal representative, or by an attorney for his

personal representative.

¶ 51 We note, moreover, that a common thread in all of the foregoing provisions is that

appointment of a special administrator is appropriate only where action or inaction by the

personal representative designated by the decedent may be adverse to the interests of the

decedent’s estate. Plaintiff has not cited any cases permitting the appointment of a special

administrator to protect the interests of a decedent’s estate where, as here, an estate is already

opened, letters of office have already issued to an executor to settle and distribute the estate,

the executor has undertaken his responsibilities and no conflict of interest is alleged.

¶ 52 The absence of authority for appointment of a separate special administrator under such

circumstances is not difficult to explain. Having two separate individuals attempting to

operate simultaneously and independently on behalf of the same decedent poses obvious

problems for the prompt, efficient and final settlement of the decedent’s affairs. Moreover,

Illinois law is clear that a testator has the right to designate by will who shall act as his

personal representative, and a court may not ignore his directions and appoint someone else

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to act in that capacity. Where, as here, the testator has designated such a representative, the

appointment of another party to serve as special administrator impermissibly infringes on that

right and is not allowed. See In re Estate of Faught, 111 Ill. App. 3d 1043, 1045 (1983).

Indeed, in addressing this problem in the context of the Wrongful Death Act (740 ILCS

180/2.1 (West 2010)), courts have concluded that appointment of a special administrator

after a petition for issuance of letters of office has been filed is void. Cushing v. Greyhound

Lines, Inc., 2012 IL App (1st) 100768, ¶¶ 104-05.

¶ 53 Plaintiff urges us to adopt a “no harm, no foul” approach and sanction what she

attempted to do on the grounds that there would be no prejudice to Mr. Grand Pre’s estate

from multiple representatives because she is not seeking recovery from Shatayeva beyond

amounts for which the estate is protected by liability insurance. A threshold problem with

this argument is that we have no basis for evaluating it. While plaintiff may perceive no

prejudice to the estate, her interests are inherently antithetical to its, and the estate may very

well have a different view. Unfortunately, we do not know what the personal representative

of the estate or the heirs or legatees think because none of them were ever notified of this

litigation or Shatayeva’s appointment to defend against it.

¶ 54 The intrinsic conflict between plaintiff’s interests and those of the estate is problematic

for another reason as well. The Probate Act expressly and unequivocally holds that “[t]he

person appointed *** special administrator under this Act may not be selected upon the

recommendation of any person having an interest adverse to the person represented by the

*** special administrator or by the attorney for the adverse party.” 755 ILCS 5/27-5 (West

2010). Under this provision, appointment of Shatayeva would have been improper even if

there were some basis for appointment of a special administrator, for her selection was based

entirely on the recommendation of the attorney for plaintiff, who was clearly an adverse

party.

¶ 55 It is true, of course, that Shatayeva’s appointment was not predicated on the Probate Act.

As noted earlier, we do not know what it was based on because no statutory basis for the

appointment was stated in the motion seeking her appointment or in the order granting it,

and, in any case, none of the circumstances under which the Probate Act authorizes

appointment of a special administrator are present here. Even though the Probate Act is not

directly controlling, however, the soundness of the principles underlying the foregoing

provision is unassailable and further undermines the propriety of the procedure followed in

appointing Shatayeva.

¶ 56 Plaintiff asks us to excuse her failure to discover that an estate had already been opened

for Mr. Grand Pre on the grounds that her attorney did make some effort to check the court

records, and was unsuccessful. Exactly what inquiries the attorney actually made, however,

are never described. They could not have been significant, for, as counsel for Shatayeva

points out, information regarding the estate and the appointment of Grand Pre’s son as

independent administrator was readily available through the Cook County circuit clerk’s

office and online. In any case, the claim “I tried” is not sufficient under the governing statute.

While section 13-209 may impose no duty of reasonable diligence to discover a defendant

tortfeasor’s death in the first instance, it clearly and unequivocally requires reasonable

diligence by a plaintiff after learning of the death, including reasonable diligence in moving

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to file an amended complaint substituting the personal representative as defendant (735 ILCS

5/13-209(c)(1) (West 2010)) and serving him or her with process (735 ILCS 5/13-209(c)(2)

(West 2010)). Implicit in both those obligations is the duty to use reasonable diligence in

identifying the personal representative. Based on the scant record before us, plaintiff’s efforts

here fell short of that standard.

¶ 57 We note, moreover, that even if plaintiff’s delay in discovering the existence of the estate

were excusable, that still would not justify her failure to then proceed as section 13-209(c)

requires. Plaintiff had ample opportunity to properly comply with that statute after learning

that an estate was already open, a petition for issuance of letters of office had been filed, and

an independent administrator had been appointed and was already in place. Plaintiff’s failure

to substitute the correct party following Mr. Grand Pre’s death was brought to her attention

no later than March of 2011, when Shatayeva moved to dismiss. Although the original

limitations period on plaintiff’s claims had expired the previous year, section 13-209(c)(4)

(735 ILCS 5/13-209(c)(4) (West 2010)) gave her up to two additional years beyond the

expiration date to proceed against the personal representative, assuming the other

requirements of section 13-209 were satisfied. Nothing in the record before us indicates that

requiring plaintiff to substitute the existing personal representative for Shatayeva, the

“special administrator,” would have disadvantaged plaintiff in any way. She simply elected

not to do so.

¶ 58 Now, unfortunately for plaintiff, it is too late. The extra two-year window afforded by

section 13-209(c)(4) has closed. To excuse plaintiff’s failure to comply with the requirements

of section 13-209(c) and allow her to substitute the personal representative at this point

would require us to do something which we simply have no authority to do: rewrite the Code

of Civil Procedure to allow a plaintiff to amend a pleading after the statute of limitations had

run. See Augustus v. Estate of Somers, 278 Ill. App. 3d 90, 99 (1996). It is no answer to say

that the issue here is simply a matter of procedure. “[E]ven though procedural in nature, a

statute of limitations, if properly asserted by one entitled to its protection, is a bar to an

action. It is a legislatively determined deadline for commencing an action against one who

otherwise might be legally indebted to a plaintiff. This court may not *** effectively

eviscerate a valid statute of limitations.” Vaughn v. Speaker, 126 Ill. 2d 150, 161 (1988).

¶ 59 CONCLUSION

¶ 60 For the foregoing reasons, we hold that plaintiff’s substitution of her lawyer’s secretary

as “special administrator” in place of Mr. Grand Pre following expiration of the statute of

limitations did not operate to preserve her otherwise invalid cause of action against him.

Because an estate had already been opened for Mr. Grand Pre and letters of office had issued

to his executor, section 13-209(c) required that plaintiff commence the action against the

executor, as Mr. Grand Pre’s “personal representative,” upon learning of Mr. Grand Pre’s

death. Plaintiff had ample time to exercise that option, but did not. Her cause of action was

therefore properly dismissed by the circuit court, and the appellate court erred when it

reversed and remanded for further proceedings. Accordingly, the judgment of the appellate

court is reversed and the circuit court’s judgment dismissing plaintiff’s cause of action is

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affirmed.

¶ 61 Appellate court judgment reversed.

¶ 62 Circuit court judgment affirmed.

¶ 63 CHIEF JUSTICE KILBRIDE, dissenting:

¶ 64 While I agree with the majority’s conclusion that subsection (c) of section 13-209 applies

to this case, I respectfully dissent from the majority opinion. I disagree with the majority’s

conclusion that plaintiff did not comply with subsection (c) of the applicable statute. In fact,

that was never an issue raised or argued in this case. Notably, defendant conceded that

plaintiff complied with the requirements of section 13-209(c) of the Code of Civil Procedure

(735 ILCS 5/13-207(c) (West 2010)).

¶ 65 In reviewing a statute, our objective “is to ascertain and give effect to the intent of the

legislature.” Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL

110012, ¶ 56. In doing so, we must consider the plain and ordinary meaning of the language

of the statute. Gaffney, 2012 IL 110012, ¶ 56. “We will not depart from the plain statutory

language by reading into it exceptions, limitations, or conditions that conflict with the

expressed intent of the legislature.” Gaffney, 2012 IL 110012, ¶ 56. Further, we will not

utilize extrinsic aids of statutory interpretation unless the statutory language is unclear or

ambiguous. Gaffney, 2012 IL 110012, ¶ 56.

¶ 66 Section 13-209 of the Code of Civil Procedure specifically addresses the situation

involving the death of a party. 735 ILCS 5/13-209 (West 2010). Section 13-209 contains

three subsections, (a), (b), and (c). 735 ILCS 5/13-209 (West 2010). Subsection (a) addresses

when “a person entitled to bring an action dies.” 735 ILCS 5/13-209(a) (West 2010).

Subsection (a) is not applicable in this case.

¶ 67 Subsection (b) of section 13-209 provides, in relevant part:

“(b) If a person against whom an action may be brought dies before the expiration

of the time limited for the commencement thereof, and the cause of action survives,

and is not otherwise barred:

(1) an action may be commenced against his or her personal representative

after the expiration of the time limited for the commencement of the action, and

within 6 months after the person’s death;

(2) if no petition has been filed for letters of office for the deceased’s estate,

the court, upon the motion of a person entitled to bring an action and after the

notice to the party’s heirs or legatees as the court directs and without opening an

estate, may appoint a special representative for the deceased party for the

purposes of defending the action. If a party elects to have a special representative

appointed under this paragraph (2), the recovery shall be limited to the proceeds

of any liability insurance protecting the estate and shall not bar the estate from

enforcing any claims that might have been available to it as counterclaims.” 735

ILCS 5/13-209(b) (West 2010).

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¶ 68 Defendant argued below, and in this court, that subsection (b) of section 13-209 is

applicable in this case because Mr. Grand Pre died before the expiration of the statute of

limitations. However, the plaintiff did not learn of Mr. Grand Pre’s death until after she filed

her cause of action. Accordingly, I agree with the majority that “[t]he provisions of section

13-209(b) presuppose that the plaintiff is aware of the defendant’s death at the time he or she

commences the action,” and is, therefore, not applicable when the defendant’s death is

unknown to the plaintiff. Supra ¶ 27. I also agree with the majority that subsection (c) of

section 13-209 is applicable in this case.

¶ 69 Subsection (c) of section 13-209 provides:

“(c) If a party commences an action against a deceased person whose death is

unknown to the party before the expiration of the time limited for the commencement

thereof, and the cause of action survives, and is not otherwise barred, the action may

be commenced against the deceased person’s personal representative if all of the

following terms and conditions are met:

(1) After learning of the death, the party proceeds with reasonable diligence

to move the court for leave to file an amended complaint, substituting the

personal representative as defendant.

(2) The party proceeds with reasonable diligence to serve process upon the

personal representative.

(3) If process is served more than 6 months after the issuance of letters office,

liability of the estate is limited as to recovery to the extent the estate is protected

by liability insurance.

(4) In no event can a party commence an action under this subsection (c)

unless a personal representative is appointed and an amended complaint is filed

within 2 years of the time limited for the commencement of the original action.”

(Emphases added.) 735 ILCS 5/13-209(c) (West 2010).

¶ 70 Subsection (c) of section 13-209 specifically addresses situations when a plaintiff is

unaware, at the time of filing the action, that a named defendant is dead. Section 13-209(c)

allows a plaintiff to proceed against a deceased person’s personal representative if the

plaintiff, at the time of the filing of the original complaint, did not know about the deceased’s

death. Subsection (c) makes no reference to whether an estate is open or closed. Rather, the

focus is on the plaintiff’s knowledge.

¶ 71 I would hold that the circuit court erred in granting defendant’s section 2-619 motion to

dismiss because plaintiff properly proceeded under section 13-209(c) of the Code. The plain

language of subsection (c) states “[i]f a party commences an action against a deceased person

whose death is unknown to the party before the expiration of the time limited for the

commencement thereof.” (Emphases added.) 735 ILCS 5/13-209(c) (West 2010). In this

case, plaintiff did not know of decedent’s death until after she filed her cause of action. This

is not disputed by the majority.

¶ 72 While I agree with the majority’s conclusion that subsection (c) of section 13-209 applies

to this case, I believe the majority misapplies subsection (c). Plaintiff alleged, and defendant

does not dispute, that she followed the requirements of section 13-209(c)(1) through (4) of

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the Code once she learned of Mr. Grand Pre’s death. 735 ILCS 5/13-209(c)(1)-(4) (West

2010). Specifically, plaintiff was unaware of decedent’s death when she commenced the

action. Plaintiff moved diligently to substitute a personal representative. She moved

diligently to serve a personal representative. The decedent and his estate are protected by

liability insurance. The personal representative was served within two years of the time

limited for commencement of the action.

¶ 73 The majority determines that Shatayeva does not qualify as a “personal representative”

within the meaning of subsection (c), even though it admits that “[t]he Code of Civil

Procedure does not define the term ‘personal representative’ for purposes of section 13-209.”

Clearly, plaintiff used reasonable diligence to have a personal representative appointed and

substituted for Mr. Grand Pre. Her mistake in misnaming the personal representative as

“special representative” or “special administrator” should not result in a loss of her cause of

action. Rather, now that plaintiff is aware an estate was opened for Mr. Grand Pre, plaintiff

should be allowed to substitute the independent administrator of the estate for Shatayeva as

Mr. Grand Pre’s personal representative in this action. I would note that the estate is not

prejudiced by allowing plaintiff to proceed because the liability of the estate is limited to the

extent the estate is protected by liability insurance.

¶ 74 It is clear that the legislature enacted section 13-209(c) specifically to address situations

when a plaintiff is unaware, at the time of filing a cause of action, that a named defendant

is deceased. Accordingly, I would hold that plaintiff properly proceeded under section 13-

209(c) of the Code and the circuit court erred when it granted defendant’s section 2-619

motion to dismiss. I would, therefore, affirm the appellate court’s judgment.

¶ 75 For the foregoing reasons, I respectfully dissent.

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