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20 September 2000

3rd Division

JUSTICE BURKE delivered the opinion of the court:

Upon reconsideration of its order denying defendant Ford MotorCompany's (defendant) motion to dismiss plaintiffs' complaintpursuant to Illinois Supreme Court Rule 103(b) (177 Ill. 2d R.103), the circuit court granted defendant's request to certify aquestion for appeal to determine whether a court is required underRule 103(b) to consider a plaintiff's actions from the date onwhich the plaintiff's complaint is filed to the date on which heobtains service of summons on the defendant for purposes ofdetermining whether the plaintiff exercised reasonable diligence inobtaining service under the rule. For the reasons set forth below,we find that a court may consider the plaintiff's actions from thedate of the filing of the complaint.

On May 20, 1996, plaintiffs filed a 12-count complaint againstdefendant, Lynch Ford, Inc. (Lynch Ford) and Jose Rodriguez(Rodriguez) for injuries the plaintiffs suffered in an automobilecollision on September 24, 1995. Plaintiffs alleged that theaccident occurred when the Aerostar van in which they were drivingrolled over after being struck by an automobile driven byRodriguez. The complaint contained claims by each plaintiff,individually, against defendant and Lynch Ford for "strictliability in tort" based on allegations that the Aerostar van thatwas manufactured and distributed by defendant, and sold by LynchFord, was unreasonably dangerous because of various design defectsand inadequate warnings regarding dangerous conditions in the van. The remaining counts were claims based on negligence againstRodriguez.

On April 29, 1997, the trial court entered an order dismissingall counts of the complaint against Rodriguez based on a settlementagreement with plaintiffs. On September 24, 1997, the statute oflimitations expired for plaintiffs' causes of action based on thepersonal injuries they suffered during the automobile collision onSeptember 24, 1995. 735 ILCS 5/13--202 (West 1996). On November3, 1997, summons and the complaint were issued against defendantand Lynch Ford. On November 7, defendant was actually served withprocess.

On February 20, 1998, defendant filed a motion to dismiss thecomplaint pursuant to Illinois Supreme Court Rule 103(b), arguingthat the complaint should be dismissed with prejudice becauseplaintiffs "did not exercise the requisite reasonable diligence inperfecting service upon [defendant], and service was not perfecteduntil after the statute of limitations had expired." Plaintiffs,in response, argued that the trial court could only consider thelength of time between the date of the actual service of process ondefendant and the expiration of the statute of limitations.

On April 30, 1998, the trial court denied defendant's motionto dismiss, but Lynch Ford was dismissed with prejudice based onits motion pursuant to section 2--621 of the Illinois Code of CivilProcedure (735 ILCS 5/2--621). Addressing defendant's motion, thetrial court stated that "there could be some prejudice to thedefendant because *** some of the defendants [Rodriguez] arealready out." In denying the motion, the court, however, followedthe reasoning in Matthews v. Donnelly, 265 Ill. App. 3d 1016, 1020-21, 639 N.E.2d 193 (1994), which held that the trial court erred inconsidering the plaintiff's diligence, or lack thereof, in servingthe defendant with the summons and complaint prior to the runningof the applicable statute of limitations when deciding whether todismiss the complaint with prejudice.

Defendant filed a motion to reconsider the trial court's orderof April 30, 1998. Defendant argued that the trial court shouldapply the amended version of Rule 103(b), which became effectiveJune 1, 1997, to the present case and that, pursuant to the amendedrule, the trial court should have considered plaintiffs' failure toeffect service of process from the time of filing the complaint tothe date of actual service on defendant. Defendant further arguedthat plaintiffs had failed to satisfy their burden of showing thatthey, in fact, had exercised reasonable diligence in obtainingservice on defendant. Plaintiffs argued that the amendment to Rule103(b) merely eliminated the res judicata applications of theformer rule, and continued to insist that the court could onlyconsider the period between the date of actual service on defendantand the end of the statute of limitations, 44 days in the presentcase, to determine whether plaintiffs used reasonable diligence.

A hearing was held on defendant's motion for reconsiderationon August 24, 1998, and the trial court denied the motion onDecember 1, 1998, again relying on the reasoning in Matthews. Defendant then filed a motion for an interlocutory order pursuantto Illinois Supreme Court Rule 308 (155 Ill. 2d R. 308), arguingthat the issue was one of first impression under the amended Rule103(b) and that any existing authority that has addressed the issueindirectly had created a conflict in the interpretation of the ruleamong the courts. Defendant further argued that an immediateappeal would advance the ultimate termination of the litigation.

On April 6, 1999, the trial court granted defendant's motion,finding that the case involved a "question of law as to which thereis a substantial ground for difference of opinion" and an"immediate appeal *** may materially advance the ultimatetermination of this litigation[.]" The trial court certified thefollowing question:

"*** [W]hether Rule 103(b), as amendedMay 20, 1997, and effective July 1, 1997,requires a court to consider a plaintiff'sactions from the date on which he files thecomplaint to the date on which he obtainsservice on a defendant, for purposes ofdetermining reasonable diligence."

Further proceedings were stayed in the trial court. This appealfollowed. Although we initially denied defendant's interlocutoryappeal, a mandate from the supreme court has directed us toconsider defendant's appeal on the merits.

Defendant contends that the plain language of amended Rule103(b) requires that the trial court analyze plaintiffs' diligencein obtaining service from the date that the complaint was filed tothe date that service was actually obtained. Defendant argues thatunder the amended rule the "crucial inquiry" was changed by oursupreme court, and the rule no longer requires a focus onplaintiffs' conduct after the expiration of the statute oflimitations. Alternatively, defendant maintains that if thelanguage of amended Rule 103(b) is ambiguous or susceptible to morethan one reasonable interpretation, the Committee Comments on therule may be considered by this court in deciding the certifiedquestion. Defendant claims that the Committee Comments "set forththat the dispositive factor under Rule 103(b) is the time when thecase is dismissed, not when the lack of reasonable diligenceoccurred." Defendant argues, therefore, that if the dismissaloccurs after the expiration of the statute of limitations, as inthis case, plaintiff does not have a right to refile the case underthe amended rule.

Plaintiffs admit that Rule 103(b), as amended, is "arguablysusceptible to more than one interpretation." Plaintiffs arguethat the Committee Comments clearly state that the amendment toRule 103(b) was intended to eliminate "the res judicata effect" ofa dismissal under the rule and not "the statute of limitationseffect." Plaintiffs further maintain that to allow the court toconsider a plaintiff's actions in effecting service prior to therunning of the statute of limitations, as argued by defendant,would encourage the filing of claims at the "tail end" of thestatutory period which is "contrary to the policy and intent of therule." Plaintiffs contend that the 44-day delay in servingdefendant with the summons following the expiration of the statuteof limitations was "occasioned by Plaintiffs' counsel'sinadvertence," did not prejudice defendant, and did not justifydismissal.

Prior to July 1, 1997, Rule 103(b) provided:

"If the plaintiff fails to exercise reasonablediligence to obtain service prior to theexpiration of the applicable statute oflimitations, the action as a whole or as toany unserved defendant may be dismissedwithout prejudice. If the failure to exercisereasonable diligence to obtain service occursafter the expiration of the applicable statuteof limitations, the dismissal shall be withprejudice." 134 Ill. 2d R. 103(b).

The amended Rule 103(b), effective July 1, 1997, provides:

"If the plaintiff fails to exercise reasonablediligence to obtain service on a defendant,the action as to that defendant may bedismissed without prejudice, with the right torefile if the statute of limitations has notrun." 177 Ill. 2d R. 103(b).

We find Paige-Myatt v. Mount Sinai Hospital Medical Center,313 Ill. App. 3d 482, 729 N.E.2d 908 (2000), controlling on theissue in the present case. In Paige-Myatt, the plaintiff filed amedical malpractice action against the defendant hospital and twodoctors on September 23, 1997, nearly two years after she hadundergone surgery at the hospital on September 25, 1995. Theplaintiff filed an amended complaint nearly 11 months later onAugust 5, 1998, the trial court issued summonses for each defendanton that day, and the defendant hospital was first served with theplaintiff's complaint on August 12, 1998. Paige-Myatt, 313 Ill.App. 3d at 484-85. The hospital filed a motion to dismiss thecomplaint under Rule 103(b), and the trial court granted themotion, noting that the plaintiff had not made any attempt to servethe hospital for 11 months after filing her complaint. The trialcourt also dismissed the complaint with prejudice because thehospital was not served within the two-year statute of limitations,which the trial court found began running on September 25, 1995,the date of the plaintiff's surgery. Paige-Myatt, 313 Ill. App. 3dat 485.

On appeal in Paige-Myatt, this court considered Rule 103(b),as amended, and the change from the former version of the rule, andstated:

"The 1997 amendment made a subtle changeto the prior rule. Previously, the courtwould look to the date when the plaintifffailed to exercise reasonable diligence todetermine whether the dismissal would operatewith prejudice--that is, whether the plaintiffcould refile her complaint. Now the courtlooks to the date of the dismissal todetermine whether the plaintiff can refile." (Emphasis added.) Paige-Myatt, 313 Ill. App.3d at 487.

Although the Paige-Myatt court found that the dismissal of theplaintiff's complaint under Rule 103(b) was proper based on the 11-month delay in service, the portion of the trial court's orderdismissing the complaint with prejudice was reversed. This courtfound that under the "discovery rule," the plaintiff's cause ofaction for medical malpractice accrued, at the earliest, on August13, 1997, and that the limitations period did not run until August13, 1999, well after the dismissal of the complaint on March 5,1999. The Paige-Myatt court affirmed the trial court's dismissalof the plaintiff's complaint but "amend[ed] the *** order ofdismissal to be without prejudice to the plaintiff's right torefile." Paige-Myatt, 313 Ill. App. 3d at 489-90.

We find the reasoning in Paige-Myatt dispositive on thecertified question in the present case. As stated in Paige-Myatt,the 1997 amendment to Rule 103(b) changed the focus of the court'sanalysis under the rule. Rule 103(b), as amended, allows a courtto dismiss a cause of action where the plaintiff has failed toexercise reasonable diligence to obtain service on the defendant,and the rule contains no restriction on the court's analysis basedon when the plaintiff's "reasonable diligence," or lack thereof,occurred, i.e., before or after the expiration of the statute oflimitations. In either case, Rule 103(b) now provides that thedismissal shall be "without prejudice," but the plaintiff has theright to refile the action if the limitations period has not run atthe time of the dismissal. This language clearly allows a court toconsider the plaintiff's efforts to obtain service from the timethe complaint is filed and to dismiss the cause of action prior tothe expiration of the statute of limitations. If the amended rulerequired that the court only look at the plaintiff's actions afterthe statute of limitations expired, there would be no use in therule for the clause stating that the plaintiff has a "right torefile if the statute of limitations has not run." (Emphasisadded.) See 177 Ill. 2d R. 103(b).

Our holding here is consistent with our holding in Paige-Myattwhere we found that the trial court properly dismissed thecomplaint based on the plaintiff's failure to obtain service on thedefendant for 11 months after the complaint was filed even thoughthe statute of limitations did not expire for almost another year. Paige-Myatt, 313 Ill. App. 3d at 485, 489. This holding is alsoconsistent with the Committee Comments to current Rule 103(b),which state:

"Whether the dismissal will extinguishthe plaintiff's claims against the dismisseddefendant will depend on whether the dismissaloccurs before or after the statute oflimitations has run. If before, the plaintiffwill be able to refile; if after, theplaintiff will be unable to refile because theclaims will be time-barred." 177 Ill. 2d R.103(b), Committee Comments at xxvii.

Plaintiffs' reliance on Matthews is misplaced because thedecision in that case discussed Rule 103(b) prior to its amendmentin 1997. Additionally, the remaining cases that address Rule103(b) cited by both parties are inapplicable as those casessimilarly discuss the former version of the rule.

For the reasons stated, we find that Rule 103(b), as amendedand effective on July 1, 1997, permits a court to consider aplaintiff's actions from the date on which the complaint was filedto the date on which the plaintiff obtains service on the defendantfor purposes of determining whether reasonable diligence has beenexercised under the rule, and we remand this case to the circuitcourt to apply this rule to the facts before it.

Remanded, with directions.

HALL, P.J., and WOLFSON, J., concur.