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Illinois Law Update
ILLINOIS LAW UPDATE: 3d District Appellate Court holds discovery rule does not extend Statute of Limitations where cause of action created by Legislature such as Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2010) and Survival Act 755 ILCS 5/27-6 (West 2010)
The Illinois Appellate Court for the Third District has written an opinion (Moon v. Rhode, 2015 IL App (3d) 130613) clarifying that the discovery rule does not apply in Wrongful Death and/or Survival Act cases. The court held that the 2 year statute of limitations applies from the date of death and not from the date on which defendant’s negligence was discovered. The court justified this distinction by pointing out that:
Personal injury actions were born of the common (judge-made) law and are susceptible to changes by the judiciary. Not so with respect to wrongful death actions, which are creatures of the legislature. Likewise, at common law your personal injury action died with you. The Survival Act, too, is a creature of the legislature (755 ILCS 5/27-6 (West 2010)). It allows for recovery of damages the injured party could have recovered, had she survived.
The court further explained that the legislature created the cause of action with the Wrongful Death Act and acted in derogation of the common law in providing for recovery under the Survival Act. Consequently, the court held that it is up to the legislature to create any limitations to these “creatures of the legislature” and the courts are not free to amend the Acts by applying such things as the discovery rule. The maintained that statutory construction rules apply and thus do not allow for such amendments as the discovery rule.
While this is currently the law in Illinois, it will be interesting to see if this case is further appealed to the Illinois Supreme Court and/or the 1st or 5th District Appellate Courts issue any opinions that run contrary to this decision.