own morning or honors my name is ellen o'rourke and i represent the defendant attach society of a special administrator for the estate of joseph grand prix jr i'm here today with my co counsel gene bradley it please the court counsel the trial court in this case granted defendants motion to dismiss it tell a court been overturned that decision and we ask this court today to reverse the appellate court's decision and affirm the trial court's dismissal of this in regard to who should be appointed as representative or administrator for a deceased defendant and further in along with that who is served and who was given notice of that lawsuit this is an important issue it's not merely a technicality as it has been described by plaintiff and they make a separate notice an opportunity to defend have along been held to be cornerstones of the legal process we do want to make clear at the outset the defendant is not arguing against the existence of subsection c the finding is not at all trying to modify the statute of limitations in regard to a deceased defendant this was never an issue in this case the first such appellate court ruled in this case  subsections b and c again are completely independent of each other the two statutes sections whoever are not in conflict with each other is contended each subsection of the statute deals with the issue of a defendant who becomes deceased prior to filing suit subsection c states that a personal representative should be substituted for the deceased defendant however subsection c does not address who this personal representative should be or even how this person represented this to be appointed or further to whom nobody should be given however subsection b of that same statute does address this issue in more depth subsection b to makes clear does not know but they do both involve the issue of a deceased defendant and they are both part of the same statute and so we believe they're not to be read entirely separately and if there's a question  under see or well that is the question and again the first district court said did not give guidance to that and simply said there should be read separately the first district in this case specifically disagreed with the third district appellate court in the case of color versus walker and so they would not follow color versus rocker color versus walker did say that c is instructive i'm sorry excuse me that b is instructive as to subsection v the third of the code addressed is this procedure killer say when the person against whom an action may be brought dies before the expiration of the time limited section thirteen zero nine two zero nine b two provides quote that the court upon the motion of a person told to bring an action may appoint a special representative for the deceased party for the purposes of defending the action and court if no petition has been filed for bettors of baucus for the deceased state we believe that  the third district in keller took the right approach to this and again looked at the statute not piecemeal but as a whole and look to guidance from to be section in terms of what should be done with sub section b is to be used just to inform how to point was correct correct again we're not taking issue with subsection b or subsection c as they stand we're saying that subsection c does not inform how the personal representative should be appointed in this case plaintiff counsel named his legal assistant as special administrator despite the fact that there was a probate estate open and active in the courts plaintiff told in his motion to appoint a special representative as this legal assistant told the court to his knowledge there was not a pro in this day and age there's no reason you cannot locate such information a claim to did not tell the court place of counsel what search was done just said to my knowledge there was not a probate estate i would also say in second subsection b actually allows additional time much more than section subsection b to locate a probate estate or error a legacy additionally more time than b there was no reason in this case no reason given why the probate estate was not located and why the probate a say to administrative or again open an act of the state was not name is the personal administrator is there any import to the they are talking about someone representing the actual matters a for the deceased whether that's an error a legatee or whether that is the probate administrator special representative from the language used seems to  be someone not actually associated necessarily with the defendant but in this case it was plaintiff councils legal assistant who was appointed a special representative i do think that that is purposeful in the statute and i realize the term special administrator actually personal representative and compass a large variety of people but i think that's purposeful in the statute and again i don't think this statute can be read piecemeal it has to be read as a whole looking at all of the language in the statute and the terms that there are views in and that are significant and that includes the terms special representative and personal representative yes which is sort of prejudice really two different entities probably have different duties obligations were discussing about how each type of representative would be brought into the case but given the fact  that even if today somehow we got back to the trial court and a plate was amended the personal representative was was named instead of a special administrator at this the prejudice goes to even notice of the suit and i think this state has long held that simply because there's an insurance policy does not mean you don't have to give notice to the proper people the proper party so i think ultimately i can certainly understand more talking about personal representative and when the during the claims period of the state that it's very important for the state to know whether or because i think though however i think there's have a right to know i think the heirs unlike the teams have a right to know every case that comes before the court in a civil action is not a case that involves a car accident because they would define it differently because while perhaps we would define them differently but again i think it comes back to the issue of notice and i think if this court would say well because there's an insurance policy which has been argued in this case it doesn't matter there's insurance policy so ultimately it doesn't matter i don't think that's the tack that this court has ever taken and any suit it's not allowed to  notice to an insurance company it's never allowed there's an attorney's policy and that's going to be what's at stake then why not give notice to an insurance company and it's long been held that's not so i think there is a prejudiced even after he was aware she was aware that there was a person on a straight or so that was not done in this case so this is not a situation what was asked of the court and tonight plaintiff's counsel plaintiff never asked that of the court so i would you want to make that clear at the beginning of your argument i think you said that paragraph b isn't involved at all and it's instructive ok i thought you were going to say it isn't involved because the opening part of some paragraph to which is you know petition for letters no petition has been filed for letters of office for that he sees state and then there's a cheater comes in in this case as i understand the petition for letters had been filed letters had been issued there was a personal representative and therefore this case clearly comes under subsection c it does and it comes under subsection c actually hon we're saying it still doesn't tell you how you should file it against a person not present it who that should be and again we're saying look to be for that and that's what the third district has correctly said one other i want to know in terms of the record in this case instructed why would plaintiff even need to put that in the motion if we didn't look to be because again c does not state who should be named as representative administrator if that were not important then why would even need to put that in and again it is because it is instructive and it is important and if there is a probate administrator if there was a myspace then that person should be named and again plaintiff never asked the court to substitute  the administrator read and again i think just you brought up prejudice i guess there's an insurance policy that the east and that would be in this case not every case has an insurance months after the issuance of letters of office i believe the state is limited to coverage to the extent the state is protected by liability insurance it does so it's has nothing to do with really of how long it takes to resolve this is more about when the the that and there are cases that allow that i think there is something inherently wrong about that for my opinion and i realize there are cases that have allowed that and then there is someone ease to have a plaintiff attorneys secretary named or legal assistant named as special administrator for one of the defendant and have the personal investigator process server walk down the hall of pla counsel's office and serve that person to represent the defendant just as wrong so yes i think there is something inherently wrong about that particularly when you have an open probate  estate so yes i know there are cases that allow that but i believe and defendant argues really that that's not proper and it wasn't a primary argument in our case because again it is allowed  that is not in the record but again it we found it defendant found have simply by a search of the cook county court records it was open act keller vs walker the third district correctly stated that you should look to be to see how you should name that person representative there's some talk of meekness brief and speak about legislative intent as to see all the legislative intent says the discussion in the legislature was before the house was extending the statute to allow plaintiffs to file suit against a deceased defendant there's nothing in the legislative intent that goes against what we're asking this court to do which is simply began to look at the statute as a whole and not piecemeal between personal representative and special rep well if you look at black's law dictionary as cited in the galley case that was cited in our brief if the finds what a personal representative is it includes an executor of an estate it includes an  nistrator but also includes a special administrator and clearly what we did was appoint a special administrator falls within the definition of personal representative as defined in black's law dictionary as well as in the galley case or letters of office issued to a special administrator appointed for the purpose of defending the action now there were no in this case there were letters an office up twenty two i believe gary i forgot his last name but if i think of a relative of the scene then my second question is how do you starting with mr works argument that section he is not involved again i thought she was going to say it's not involved because of the opening sentence of subsection two which says  loan to you before the expiration time and you file a timely cause of actions survives it's not otherwise barred then the action may be count commenced against the deceased persons personal representative there is a personal representative and then it sets out the means for serving that and having that party substituted in this case the personal representative was appointed in  two thousand and eight the lawsuits filed when and in two thousand and ten there was a four month delay from the time that the press special process server notified you of the death  of the seed and until the motion for a special representative was appointed again it seems that some paragraph c covers it and you're still in the box as long as you serve the personal representative  in existence why appoint a special representative we were unable to find contrary to what counsel says navigating the cook county court system computer system is not an easy process and it is not always that easy to ascertain in this case he was originally on the police report named as joseph grand not just a grand prix that was only discovered once our process server couldn't locate him we did make a search on the computer we are unable to locate in a state that was open we then proceeded to appoint  refers to letters of all those that's correct but it also doesn't define what a personal representative is so you're saying the same thing a personal representative is the same thing as a special representative appointed to defend the lawsuit yes that's correct if you read the last law good canary as cited in the getty case it very much talks about that anyone that can act in a legal capacity on behalf of the state and a person a special administrator very much by appointment of court can function in that in that capacity and so i don't in section c there is not a definition of what a personal representative is if the if the legislature had wanted you to read section c together with section b the he would said so in fact the plain language of the statute the fines three specific classes of litigants in this case section eight defines plaintiffs who have died that clearly wasn't at issue here section b defines defendants who have died in plaintiffs have knowledge of them before the a political statute of limitations and filing suit within six months that was impossible in this case we did not know of the death of the defendant in this case and would have been impossible for with section b as such section c is clearly the a political section in this case we could not have done gone through section b what they are arguing is that while even those part of section b doesn't nothing in the statute that says we were required to serve them secondly that the fended in any time in this case could have come in and substituted them if they felt it was important for that representative to be involved the case  they could have filed a motion and substituted in that person that representative that had been appointed by the probate court they chose not to do so i don't know why they're arguing here that it was so important that they'd be involved in the case and that they have a role in the case and yet when they had the opportunity to include them in the case and include them in a wall they choose chose instead not to do so and to file a motion to dismiss instead that runs opposite of what they're arguing here today about how important the wall of that administrator appointed ministry it was because they chose not to include them in the case very simple all they have do is file a motion and they would have been here i guess i don't understand it completely you have the special administrator now saying they should object to their being appointed a special administrator and they should have substituted the personal representative who you couldn't find now i'm not saying what they should have object in fact we would rather not have someone from our office a special administrator we would prefer that when that occurs and someone person from our office is appointed as special administrator we prefer that the defendants appoint their own we would rather that process take place they chose not to do so defense they then appeared in the case when they should be when they appeared in the case that the insurance company had knowledge of the lawsuit and of the case they were now involved in case at any time thereafter they could have filed the petition to substitute in the administrators of the statement gary grand prix into the case they chose not to do so and that that runs counter to their argument here today of how important it is for the state to be involved in the case this was a case involving purely insurance proceeds the state had no risk this estate has no it's the state assets have no risk whatsoever in this case it is merely the insurance proceeds that are at risk in this case if they felt that the family was should be involved they should filed a motion and they could have filed a motion in fact to get each case discusses how in most instances similar to this the family members don't want to be involved in the estate has already been dealt with or even if it's ongoing it doesn't make a difference because this case has no impact on the estate and they don't want to be involved in a you know auto accident lawsuit as an administrator takes their time it takes their effort and the get the case to discuss is that but having said that if they wanted gary grand prix to be involved a simple motion would have done so they chose not to do so the plain language of the statute clearly indicates that these sections should not be read together you can't there are clearly three the state classes of win against and you can't look to section two for part of it go well part of section two doesn't apply but let's use another part of section two if the legislature had wanted there to be a specific process for appointing a specific person or a specific entity to comply with section c they would have said so they specific section c was added in one nine hundred eighty nine after the foreign case in order to allow the plaintiffs to be able to proceed against the fence who they were unaware were dead at the time a lawsuit was filed when they added that section they could have included language in section b to set forth a process or who had to be appointed they chose not to do so i don't believe it's appropriate for this court to create exceptions or look to a section that clearly doesn't apply which section b clearly doesn't apply and now why that same process the section c when the legislature chose not to apply it there's a make every attempt oh you can't you can't read the statute you can't you can't look to section b section b clearly doesn't involve the class of litigants that we have in this case section b involves if the plaintiff had knowledge of the death of the seed and before the statute of limitations and if they had filed a lawsuit within six months of the death mr mr grand prix that the fed in this case has to way only about two months after this accident occurred we didn't even file suit until right at the statute of limitations and only learned of his death after the a possible statute of limitations expired so you can't you can't look to section b because section b doesn't apply just like section eight doesn't apply in the first district correctly interpreted that way they look at the plain language of the statute and the plain language of section c does not define alluded to it when you were asking questions of my post and counsel there is no prejudice to the estate under the circumstance of this case this state had no personal liability at all there was insurance proceeds to cover this estate and fact if there had been no insurance we would have no case our case would be over and so any policy considerations as it relates to giving notice to an appointed representative of the state are not present in this case in this case we have a circumstance where there isn't sure it's coverage there was there is no prejudice to the estate and the legislature does not define how to do so if they defined in other places based on those set of circumstances in those classes a little against that's great they chose not to define it in this case and they chose to leave it as a personal representative and personal representative include special administrator by definition is there any difference in terms of exposure of the assets of the state when the assets of the season dart risk then notice to the estate is important but in this case there were no assets of the estate at risk at all we were well past the guidelines it set in section b for our proceeding  had to proceed under section c and so in this case there was no prejudice to the estate at all by appointing a special administrator and serving them and if they were they keep talking about prejudice insurance company was aware of the lawsuit they certainly have the ability and they in fact they were aware that in the state was opened up on behalf of their insured mr grand prix and they could have substituted in that person at any time if they felt that in any way that person was important or they should have notice would be the status of your case if we had known that there was i still don't think it would have made any difference i think that you don't have to comply with c no you can you can appoint your personal you can appoint a special representative and go past personal representative well i think that i think that personal representative is defined in blast law dictionary and say in the getty case includes a special administrator and what's the purpose of paragraph see that says if you have an obligation after learning of the death to do with reasonable business diligence move for substituting filing a minute complaint and those for reform so i think we went think we have we did appoint a personal representative which is a special administrator by definition so you're saying you can for letters p two doesn't apply at all because b two applies to a set of of when again that has no bearing in this case b to applies to when you had knowledge of the death before the statue of limitations and you filed suit within six months of that instance in that case and that's that's why it doesn't apply the section b has no click ability to the circumstances of section c and that they should be read very much separately it can't be read you can't take part of b and apply it to section c when it doesn't follow the same class of litigants if the legislature had wanted there to be a specific named person or a specific name entity in section c they would have done so they they chose to do that in section b because it had implications for the estate in their assets but they also chose to leave it silent as the section c because of the lack of prejudice unimportance of it as a relates to the circumstances that fall in section  in this case there was absolutely no prejudice to the defendant as related to the circumstances there wasn't sure ense the insurance company was tendered the lawsuit in a timely fashion they came into  the estate and like i said before they could have substituted somebody of their own doing in fact we would have preferred that they had substituted their own people into the case there was no benefit in us having our own special administrator involved in the case whatsoever you meant there would be if there was an insurance coverage there would be no case then i response to opposing counsel right that talk about cases that there may not be insurance coverage for intentional acts or what have you read because you would have missed the time period and that would have had to go against the estate so that would be correct there would be no if there was no insurance in this case we would not our case would have been over because of the of the guidelines and section c and the language of section c that's exactly accurate ok we would ask that the court affirm the first district's willing in this case they correctly found that sections b and c should be read separately not together the legislature did not in any way put any language in section see that would make this court look to section b for any of its language and they could have and they chose not  the heirs and legatees the probate administrator has the right to know about that i don't think it's comes down to just simply an insurance policy issue and again this court and many stated it's not about the insurance policy that with situation in terms of notice of the case and ability to defend the case there'd be no need to ever serve a defendant and you would just maybe insurance company you would mention well and i would respond to that why is it why is the defendant's right the duty of the defendant to name the person as the administrator plaintiff has prophesied lawsuit it is plain to see a duty an obligation to name the correct person plaintiff could have asked the court to do that plaintiff never did and i want to make that clear the record does not show that plaintiff ever asked the trial this misnomer defeat the entire cause of this i don't think it i respect i don't think it's a misnomer i'll change the fact that they named the wrong person why does that defeat the cause of action because a man situation and there was no no to the correct party and again it's not defendant's obligation to then come in and say hey plaintiffs you name the wrong person you should name the right person it's plain to see obligation to do that and there's a lot of situations in the court system and in the law where it becomes analogy because it wasn't done something wasn't wasn't done correctly this is one of those situations i think plaintiff could have corrected it if plaintiff had asked the court to do that if you look at the record played to the did not ask the court to ever do that agree with in this case plaintiff argued that again you should look at the statute and look at the subsections completely separately and this court is always have you should not do that you can't look at these piecemeal look at our service statutes look at the reasonable diligence you have to use to serve someone there's a lot of instances of quote technicalities but they're important for reasons and in this case the reason is that you should give notice to the probate personal administrator and again at this point it was well you don't look at me you don't look at me but if that was the case again then why does motion to amend our motion side to substitute a special representative why involved here but in when a defendant dies during the process of the suit that comes into play and that uses the same terms they are used to frankly in terms of prejudice again i would talk about notice about also say that consistent in how it backs whether that's five months and twenty nine days or six months i understand this is from an insurance proceeds but i don't think that means there is no prejudice and again this court has long held just because the name the correct person and that was an open probate estate and again if you look at the record there is nothing in here that says what plaintiff to locate that estate this was a cook county active court case