A divided Illinois Supreme Court has ruled plaintiffs can sue defendants who are deceased and then ask the court to appoint a special representative, an alternative to first identifying the proper personal representative of an estate in order to initiate litigation.
The underlying case stems from a February 2016 car collision. Jamie Lichter, who sustained injuries in the crash, sued Donald Christopher in January 2018, unaware he’d died in June 2017 without an estate opened in his name. In April 2018, Lichter moved to appoint Kimberly Carroll the estate’s special representative.
Although a circuit court judge approved that request, lawyers for Christopher’s insurer, State Farm, eventually appeared on his behalf. Under state law, recovery in lawsuits involving an estate’s special representative is limited to proceeds from liability insurance.
In March 2020, State Farm won dismissal of the complaint, arguing Lichter failed by never moving to appoint a personal representative of Christopher’s estate.
An Illinois First District Appellate Court reversed that order, finding there was no personal representative to defend Lichter’s lawsuit, and as such, she acted properly.
State Farm took the matter to the Illinois Supreme Court, which issued its ruling Oct. 26.
Justice Joy V. Cunningham wrote the 4-2 opinion; Justices Mary Jane Theis, P. Scott Neville and Mary K. O’Brien concurred. Justice Elizabeth Rochford dissented with concurrence from Justice David Overstreet. Justice Lisa Holder White took no part in the decision.
State Farm’s argument, according to Cunningham, was based on an interpretation of state law regarding plaintiffs who file a lawsuit against a party they don’t know is deceased. The majority agreed Lichter didn’t know Christopher was dead until after the expiration of the statutory window for appointing a personal representative, but held the law doesn’t exclusively require such plaintiffs to seek a personal representative, nor does it conflict with the clause allowing pursuit of a special representative.
Rather, Cunningham wrote, “both subsections contain the word ‘may,’ confirming that either option is available to the plaintiff for her choosing and one subsection does not preclude the use of the other.”
The majority further noted State Farm failed to explain how the law could allow a plaintiff, aware of a defendant’s death when filing a suit and before the statutory limitation expires, could seek a special representative, but someone in Lichter’s position would be unable to do the same.
“We emphasize that the appointment of a special representative is not automatic; a plaintiff must move the court to appoint a special representative,” Cunningham wrote. “This allows the court to balance all the relevant considerations, including notice to any heirs and the timing of the filings. The trial court can then decide within its discretion if appointing a special representative is appropriate.”
In her dissent, Rochford said she is “completely sympathetic to the result” the majority reached, but said she couldn’t agree with how it read the state law. She continued by explaining the General Assembly placed its special representative provisions entirely within a certain subsection that, if read in the larger context of the legislation, supports State Farm’s position regarding statutory limitations.
Lichter could’ve sought a special representative “if she had been aware of (Christopher’s) death in time to take advantage of its provisions, but this was not the case,” Rochford wrote.
“(Lichter) learned of (Christopher’s) death after the statute of limitations expired, and thus she still had two years to file an amended complaint against a personal representative. She did not do so, and therefore her complaint was properly dismissed.”
In supporting her position, Rochford said she also would encourage lawmakers to determine whether the special representative provisions should be added to the subsection concerning plaintiffs who sue before learning an intended defendant is deceased.
Lichter has been represented in the case by attorney Yao O. Dinizulu, of the Dinizulu Law Group, of Chicago.
State Farm was represented by attorneys Ellen J. O’Rourke and Jean M. Bradley, of the firm of Yvonne M. Kaminski & Associates, of Chicago.
Attorneys for State Farm did not reply to an emailed request for comment from The Cook County Record.