Sepmeyer v. Holman

CHIEF JUSTICE BILANDIC, dissenting:

The majority blindly assumes that the statute of limitations applicable to the plaintiffs wrongful death claim expired on July 13, 1981, two years after the murder of the plaintiffs mother. I object to this assumption. The equities of this case clearly demand that we toll the two-year limitations period that might otherwise apply to the plaintiffs claim. I would hold, pursuant to this court’s equitable powers, that the limitations period applicable to the plaintiffs cause of action was tolled between 1981 and 1984, when the legislature enacted section 13 — 202.1 (Ill. Rev. Stat. 1985, ch. 110, par. 13— 202.1) to eliminate the statute of limitations applicable to causes of action, such as this, which are based on the commission and conviction of heinous crimes.

It is beyond question that this court has the power to grant any such relief as the equities of the case require. (Shrock v. Shoemaker (1994), 159 Ill. 2d 533 .) We are not bound by formulas or restrained by limitations that inhibit the free and just exercise of our discretion. (Cesena v. Du Page County (1991), 145 Ill. 2d 32 ; see also Ill. Rev. Stat. 1991, ch. 110, par. 2 — 604; 134 Ill. 2d R. 366.) In the past, this court has not hesitated to invoke its equitable powers to shape a remedy to meet the demands of justice in a particular case. Cesena v. DuPage County (1991), 145 Ill. 2d 32 ; Schrock v. Shoemaker (1994), 159 Ill. 2d 533 .

In Cesena, this court invoked its equitable jurisdiction so that the estate of a man who was struck and killed by a hit-and-run driver could discover the identity of that driver and exercise its legal rights against him. The driver’s identity was not otherwise discoverable because a deputy sheriff had wrongfully refused to accept the driver’s accident report, even though it was submitted to the sheriff’s office within three hours of the accident as provided for by statute (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 401(b)). Confronted with the obvious inequities of the case, this court invoked its equitable jurisdiction, deemed the accident report timely filed, and allowed the estate to discover the driver’s identity. Cesena, 145 Ill. 2d at 41-43 .

More recently, this court invoked its equitable jurisdiction to require joinder of separate claims and to toll the running of the statute of limitations under the Wrongful Death Act. (Schrock v. Shoemaker (1994), 159 Ill. 2d at 548 .) In Schrock, the plaintiff brought a cause of action against the defendant under the Structural Work Act for the loss of consortium she suffered when her spouse was killed in a work-related accident. Although the plaintiff had received workers’ compensation benefits from the decedent’s employer, that employer had no right to impress a lien to recover those benefits from any award the plaintiff obtained from the defendant. This court found that, to avoid the potential for double recovery and to protect the employer from excessive liability, the plaintiff should be required to join her loss of consortium claim under the Structural Work Act with a claim under the Wrongful Death Act for the decedent’s injuries. In Schrock, however, the two-year limitations period for bringing a wrongful death action had already expired at the time the court rendered its decision. Therefore, if joinder was required, the plaintiff would have been deprived of any relief. To avoid such an obvious inequity, this court invoked its equitable powers and tolled the statute of limitations' under the Wrongful Death Act, so that all of the controversies between the parties to the appeal could be resolved in an equitable manner. Schrock, 159 Ill. 2d at 548 .

This court should likewise invoke its equitable jurisdiction here to hold that the two-year limitations period for filing a claim under the Wrongful Death Act was tolled in this case from 1981 until 1984 when the legislature enacted section 13 — 202.1 (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 202.1). The balance of equities clearly favors a decision to toll the limitations period. It is patently unjust to require the family of a murder victim to assume the onerous burdens attendant to preserving a cause of action against an indigent assailant. Before the legislature remedied the inequity in 1984, a victim’s family or estate would have been obligated to bring a civil action against an indigent and incarcerated defendant to ensure that they were not deprived of their claims against such an assailant. The family would have had to assume the legal expense of obtaining and sustaining the validity of a judgment so that they were not left without a remedy in the unlikely event that the indigent defendant acquired funds to satisfy such a judgment. Imposing such an onerous burden on crime victims and their families was patently unjust. In 1984, the legislature acknowledged and remedied this injustice by enacting a statute to extend the limitations period indefinitely in such cases. Ill. Rev. Stat. 1985, ch. 110, par. 13 — 202.1.

In my view it is unfair and unnecessary to hold that the limitations period applicable to the plaintiff’s wrongful death claim expired in 1981. The majority acknowledges the injustice of its decision, but claims that it is without the power to remedy the inequity. I strongly disagree. This court has recently invoked its equitable powers to toll the limitations period applicable to a wrongful death claim. (Schrock, 159 Ill. 2d 533 .) I find no logical reason why we cannot invoke those same powers in this case. I would hold, pursuant to our equitable powers, as exercised in Cesena and Schrock, that the statute of limitations for bringing a wrongful death action was tolled in this case from 1981 until 1984, when the legislature enacted section 13 — 202.1. Because I would hold that the limitations period was tolled between 1981 and 1984, I would not reach the question discussed in the majority opinion, namely, whether section 13 — 202.1 of the Code of Civil Procedure may be applied retroactively to the plaintiff’s claim.