IL: Underlying legal malpractice action
Facts: Plaintiff is suing his former attorney for legal malpractice because they allegedly failed to file a lawsuit on his behalf before the statute of limitations expired. Although the plaintiff filed his action within the applicable statute of limitations and statute of repose, both expired during the pendency of his case. The case was dismissed on March 10, 2008 for want of prosecution. Approximately two months later, the plaintiff refilled the case under Illinois’ saving statute. The defendant’s moved to dismiss arguing that plaintiff was barred from refilling because the six-year statute of repose for legal malpractice claims. The plaintiff argued that he had an absolute right to re-file because the saving statute didn’t only create an exception to the statute of limitations – but it also created an exception to the statute of repose. The trial court granted defendant’s motion to dismiss and plaintiff appealed.
Issue: Whether the Illinois saving statute, which permits the refilling of certain dismissed actions, creates an exception to the statute of repose for legal malpractice actions?
Ruling: Yes. The court reversed and remanded. The court held that the saving statute did provide an exception to six-year statute of repose for legal malpractice actions. The court stated that although the phrase “period of limitation” which appeared in the saving statute was ambiguous as to whether it applied to a statute of repose, “applying the saving stature to a statute of repose created no greater frustration of purpose than applying it to the statute of limitations.”
Lesson: This decision is a primer on the inter-relationship between statutes of repose and statutes of limitations. In construing a statute, the court will attempt to give effect to the legislature’s intent.. In this case, giving plaintiff an additional year to file a legal malpractice suit did not undermine the purpose of the statute of repose, which is to limit indefinite potential liability of a defendant.
Posted in: Illinois