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The Incredible Shrinking Limitations Period

Claims involving special defendants, such as municipalities, mass transit companies, school and port districts, are subject to a special one year limitations period. Certain claimants, including policemen, firemen, and guardsmen, must make claims for death benefits within a year of death. In some cases, a special notice requirement is also imposed, as early as six months from the triggering event. This article reviews the main instances of these special limitations periods.

 
The Incredible Shrinking Limitations Period
By: Joseph R. Marconi 1

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Claims involving special defendants, such as municipalities, mass transit companies, school and port districts, are subject to a special one year limitations period. Certain claimants, including policemen, firemen, and guardsmen, must make claims for death benefits within a year of death. In some cases, a special notice requirement is also imposed, as early as six months from the triggering event. This article reviews the main instances of these special limitations periods.

One of the cardinal rules of malpractice avoidance is to always be cognizant of any statute of limitations that applies to your clients’ potential actions and to timely file their claims.

Typically, the first place to check is Article 8 of the Illinois Code of Civil Procedure (735 ILCS 5/13-101 through 225). Yet, the applicable statute of limitations may change depending on the nature of the parties involved, so what might otherwise be a two, four, or even five year limitation shrinks into a one year statute.2 This applies to such parties as schools, harbor and sanitary districts, mass transit companies, police, fire, National Guard personnel, and state employees. In some cases, a six month notice requirement overlays the statute of limitations, so that a failure to provide a factual statement within that time bars the action. A private right of action arising under any particular statute may, and very likely does, contain its own limitations provision and must be noted as soon as possible.

This article is not offered as a complete guide to limitation statutes of one year or less — there are many short limitations period associated with statutory-based administrative and regulatory claims. Rather, we refer to statutes that overlay a special one year limitation (or less) on claims that might otherwise have a longer period under Article 8. This list is not necessarily exhaustive and counsel is urged to habituate review of all possible limitation statutes to determine applicability.

MASS TRANSIT
70 ILCS 3605/41; 70 ILCS 3615/5.03
Under both the Metropolitan Transit Authority Act and the Regional Transit Authority Act, “No civil action shall be commenced in any court against the Authority by any person … for any injury to [his] person unless it commenced within one year from the date [that] the cause of action accrued.”

CIVIL IMMUNITIES ACT
Under the Civil Immunities Chapter of the Illinois Code (745 ILCS 5/0.01 through 80/1), in addition to establishing immunities for various entities and situations, there are special limitations and notice requirements for claims against various entities, principally governments, schools and their employees.

Municipalities
745 ILCS 10/8-101
With some exceptions, such as breach of contract actions and some employment disputes, claims against “a local entity or its employees [except regarding medical care]” must be filed within one year of the date that the injury was received or the cause of action accrued.

School Districts
745 ILCS 25/2
“No civil action shall be commenced in any court against any school district or non-profit private school by any person for any injury to his person or property unless it is commenced within one year from the date that the injury was received or the cause of action accrued.” 745 ILCS 25/2.

There is also a notice requirement. “Within six months from the date that such injury was received or such cause of action accrued, any person who is about to commence any civil action in any court against any school district for damages on account of any injury to his person or property shall file … a [signed] statement giving [basic information regarding the claim].” 745 ILCS 25/3.3

County Engineers and Highway Superintendents
745 ILCS 15/2
Likewise, claims from injuries arising from a county engineer or highway superintendent must be filed within one year. 745 ILCS 15/2. As with schools, there is a six month notice requirement to provide a signed statement giving basic information regarding the claim. 745 ILCS 15/3, 4.

COURT OF CLAIMS
705 ILCS 505/22
The Illinois Court of Claims handles claims for money damages or personal injury against state agencies or employees including state universities; it also awards compensation to victims of violent crimes under the Crime Victims Compensation Act, and to dependents of police officers, firefighters, National Guard members and state employees killed in the line of duty. There are several Illinois statutes which vest the Court of Claims with jurisdiction4, and cross referencing between those acts and the Court of Claims Act (705 ILCS 505 et seq.) is essential to avoiding blowing either the statute or special notice requirements.

Section 505/22 specifies the limitations period for claims involving various persons or provisions of the Illinois Court of Claims Act (705 ILCS 505 et seq.) In subsections (b), (d), (e) and (f), the statute specifies a one year limitation for claims. These special categories include claims of:

  • contractual obligations to vendors of goods and services to the state under the “Illinois Public Aid Code” (305 ILCS 5/11-13);5
  • compensation to crime victims under the “Crime Victim’s Compensation Act” (740 ILCS 45/1 et. seq.);6
  • duty death benefits claimed by police officers and firemen and some others under the “Line of Duty Compensation Act” starting on the date of death (820 ILCS 315/1 et seq.); and
  • duty death benefits claimed by Illinois guardsmen and militiamen under the "Illinois National Guardsman’s Compensation Act” (20 ILCS 1825/1 et seq.) starting on the date of death.

Under the Line of Duty Compensation Act, there is also a special notice requirement to provide information that must be filed within the same time claim, one year from the date of death. 820 ILCS 315/4.

Subsection 22-1 has a one year notice requirement for claims against Illinois state universities and academic institutions and their boards of trustees. The statement with specified information must be served on the Attorney General and the Clerk of the Court of Claims.7 705 ILCS 505/22-1.

ATTORNEY MALPRACTICE RELATED TO PROBATE
735 ILCS 5/13-214.3
An even more drastic curtailment of the standard limitations period occurs with respect to some malpractice claims against attorneys pursuant to 735 ILCS 5/13-214.3(d), which reads:

When the injury caused by the act or omission does not occur until the death of the person for whom the professional services were rendered, the action may be commenced within 2 years after the date of the person’s death unless letters of office are issued or the person’s will is admitted to probate within that 2 year period, in which case the action must be commenced within the time for filing claims against the estate or a petition contesting the validity of the will of the deceased person, whichever is later, as provided in the Probate Act of 1975 [755 ILCS 5/1-1 et seq.].

This provision raises two separate issues requiring case by case analysis. First, the attorney must determine whether the injury occurred before or after death. Typically, “injury” caused by improperly drafted testamentary documents will be deemed to have not occurred until death but the case by case analysis can become quite complex in common fact scenarios. Consequently, that determination has fertilized many an appellate decision and attorneys are advised to carefully analyze the basis of their claims to ensure they comply with the proper limitations period.8

Second, if the “until the death” provision applies and letters of office have issued or the will has been admitted to probate, reference must be made to the two triggering events and resulting six-month limitations period set out in the Probate Act of 1975. The possible triggering events: if there is a will filed with the Probate Court, parties have six months to challenge it starting from the date of filing. 755 ILCS 5/8-1(a); alternatively, 755 ILCS 5/18-3 requires that the estate administrator establish a claims period for known and unknown creditors by publishing a notice of death and a termination date for claims against the estate.9 That period can be no less than six months from the date of publication. 755 ILCS 5/18-3.

So, in these circumstances, determining the correct limitations period requires this multi-step analysis: 1) was there no injury “until the death” of the decedent?; 2) was a will filed and if so, on what date?; 3) was a death notice published and, if so, what end date is specified? Because the malpractice limitation is determined by the later of these dates, probate attorneys are best protected by publishing the death notice and filing the will, if any, as soon as possible to start the six months period running.

PORT DISTRICTS
70 ILCS 1805/34; 70 ILCS 1815/44; 70 ILCS 1830/45; 70 ILCS 1870/34
Port Districts are “quasi-government agencies” that include multiple counties and municipalities, which liaison with local, state and federal agencies to coordinate economic development. Out of 20 port districts established by separate statutes in Illinois, only four Illinois port districts have special limitations statutes of one year. See, 70 ILCS 1800 et seq. Those four are the Havana Regional Port District; the Illinois Valley Regional Port District; the Kaskaskia Regional Port District; and the White County Port District. In addition to the one year statute of limitations, there is a six month notice requirement:

Within 6 months from the date that any injury was received or such cause of action accrued, any person is about to commence any civil action in any court against the Port District for damages on account of any injury to his person shall file in the office of the secretary of the Board … a statement in writing signed by himself, his agent or attorney, giving [basic information regarding the claim].

70 ILCS 1805/34; 70 ILCS 1815/44; 70 ILCS 1830/45; 70 ILCS 1870/34.

SANITARY DISTRICTS:
70 ILCS 2405/22a.47; 70 ILCS 2805/85
Sanitary districts are taxing authorities that manage sewage and drainage infrastructure. Claims arising from property damage caused by constructing district improvements or failing to install approved improvements must be filed within one year.

COAL MINERS
225 ILCS 705/10.07

Claims under the Illinois Coal Mining Act for death or injury must be brought within a year.

As noted above, this article is not meant to be exhaustive — limitations and notice periods overlay and shorten otherwise applicable limitations set forth in Article 8 of the Illinois Code of Civil Procedure in any specialized or statutorily based claim.10 The purpose of this article was to alert practitioners to this potential source of malpractice and highlight some of the more common claims which would be affected by one year overriding limitation statutes.

 

[1] Mr. Marconi is a shareholder at Johnson & Bell, Ltd., chairman of the business litigation/transaction group, and co-chair of the employment group. He gratefully acknowledges the assistance of Justin H. Volmert in drafting this article.

[2] Most one year statutes depend on the status of one or both parties. Few common actions have one year statutes, the main exceptions being slander, defamation and publications violating the right of privacy (735 ILCS 5/13-201); dram shop claims (235 ILCS 5/6-21); and breach of promise to marry — which has a three month notice requirement (740 ILCS 15/6).

[3] The practitioner is urged to review the opinion in Cleary v. Catholic Diocese, 57 Ill. 2d 384 (1974), in which the court held that both the notice and limitation provisions of this Act were invalid as to both public and nonprofit private schools.

[4] These include the Public Aid Act (305 ILCS 5/11 et seq.), the Line of Duty Compensation Act (820 ILCS 315/3); and the Illinois National Guardsman’s Compensation Act (20 ILCS 1825/1 et seq.).

[5] The starting event of this subsection of claims is governed by § 305 ILCS 5/11-13 and can vary depending on the circumstances of the performance, billing and notifications to the state.

[6] Within 2 years of the occurrence of the crime, or within one year after a criminal charge of a person for an offense. (740 ILCS 45-6.1 effective January 1, 2013).

[7] This requirement is obviated if an actual claim was filed within a year.

[8] Likewise, the method of counting the days is important, in terms of whether to count the date of the triggering event (when the claim arises or is discovered, depending on the statute) or the first day after. See 5 ILCS 70/1-11; and 715 ILCS 5/6. For those who, by habit or circumstances, cut it close, it would be beneficial to study the relevant case law. For a start, see J. Marconi and D. Macksey, “WHAT CAN YOU COUNT ON THESE DAYS?” [date][link]

[9] Service of known creditors must be direct and can limit the claims period to three months; however, since the publication of a death notice and resulting minimum six months period is always required, the three month claim limitation is not relevant to the determination of the limitations period under 735 ILCS 214.3(d).

[10] Such as petitioning for the disconnection of a land parcel from a newly-organized municipality. 65 1LCS 5/7-3-1.

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