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New Illinois Decision Involving Pursuit of Claims Against a Deceased Defendant’s Estate
A new appellate decision sheds new light on the conditions under which a party can file an action against a deceased person’s personal representative. In Cross v. Ochsenschlager, the plaintiff sued a wrong-way driver who caused an accident that injured her. The case traveled through the courts for a very long time and was voluntarily dismissed for a time. When Plaintiff refiled, she learned that the defendant had died.
Plaintiff moved to appoint a special representative of the decedent’s estate. The appointed special representative moved to dismiss her complaint, arguing that the Death of Party statute required her to appoint a personal representative of the estate, not a special representative. The trial court agreed and because of Plaintiff’s error, found the matter was now time-barred and the Court lacked subject matter jurisdiction. Plaintiff appealed.
The panel wrote that because there was no personal representative of defendant’s estate, Plaintiff was entitled to name a special representative pursuant to statute. The panel considered and differentiated the prevailing case that seemed to favor the need for a personal representative. Finding that plaintiff did not fail to follow the statutory requirements, the Court allowed the plaintiff to transfer her negligence suit to the special representative.
It is not unusual that a defendant might die within the statute of limitations period without a plaintiff knowing it, and the Cross decision helps to clarify the next steps that a plaintiff must take to pursue a negligence action. For our part, we will ensure that those proper steps are taken and, if not, all possible recourse is explored on behalf of our clients.