stating that section 13 — 217 permits one refiling
How later courts described this case
- stating that section 13 — 217 permits one refiling
- statute permits only single refiling even though underlying statute of limitations has not yet expired
- holding Illinois savings statute “permits one, and only one, refiling”
- dismissing third filing under the single refiling rule even though second filing was dismissed without prejudice
Written by the judges who cited it.
The opinion
JUSTICE CLARK, dissenting:
I respectfully dissent.
In Gendek v. Jehangir (1988), 119 Ill. 2d 338, 343 , this court observed:
“The purpose of section 13—217, and its predecessor, section 24 of the Limitations Act (Ill. Rev. Stat. 1981, ch. 83, par. 24a), is to facilitate the disposition of litigation upon the merits and to avoid its frustration upon grounds that are unrelated to the merits. [Citation.] We agree with our appellate court, however, that the provision was intended to serve as an aid to the diligent, not a refuge for the negligent. [Citations.] Accordingly, we find that the provision was not intended to permit multiple re-filings following voluntary dismissals of an action for which the original statute of limitations had lapsed. A contrary interpretation would foster abuse of the judicial system by allowing a nondiligent plaintiff to circumvent (through repeated filings and dismissals of substantially identical actions) the otherwise applicable statute of limitations. We cannot conclude that the General Assembly intended such a result.” (Emphasis added.)
Accord Relaford v. Kyaw (1988), 173 Ill. App. 3d 1034, 1042 .
Section 13 — 217 is a saving provision, which grants a plaintiff the right to refile after a voluntary dismissal where the original statute of limitations has run. In the instant case, the applicable statute of limitations had not run. The third filing in this case was not pursuant to the saving provision, but was a timely filing under the same facts and claims as the two previous filings. Plaintiffs were not nondiligent or otherwise guilty of circumventing the applicable statute of limitations. They were simply exercising their right to file an action within the applicable statute of limitations. Accordingly, I would affirm the orders of the circuit and appellate courts which reinstated plaintiffs’ complaint.
JUSTICE CUNNINGHAM joins in this dissent.