Fiorito v. Bellocchio
2013 IL App (1st) 121505
Ill. App. Ct.2013Background
- Automobile collision between Fiorito and Bellocchio on Oct 19, 2001.
- Olson filed a personal injury complaint on Aug 25, 2003 without Fiorito’s knowledge.
- Fiorito discharged Olson on Sept 19, 2003 and later had Peters investigate; Peters filed a second suit on Oct 16, 2003 (case 03 L 12346) within the limitations period.
- Fiorito learned of the Olson-filed suit; on Mar 24, 2004 Fiorito voluntarily dismissed 03 L 12346 under 2-1009.
- Fiorito thereafter pursued 03 L 10225 (the first suit) and, after May 18, 2010, voluntarily dismissed it; Fiorito refiled on May 16, 2011, which the trial court dismissed as beyond the one-year refiling period under 13-217.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether refiling was timely under 13-217 revival | Fiorito argues 13-217 applies as a savings statute. | Bellocchio contends refiling was beyond 1 year from March 24, 2004. | Refiling was untimely; dismissal affirmed. |
| Whether the first voluntary dismissal started the 13-217 window | The second case was a nullity; the window should reset differently. | The one-year period began with the March 24, 2004 dismissal. | One-year period began March 24, 2004; May 16, 2011 refiling barred. |
Key Cases Cited
- Rodgers-Orduno v. Cecil-Genter, 312 Ill. App. 3d 1150 (2000) (refiling period begins at initial voluntary dismissal (1-year limit))
- Mercantile Holdings, Inc. v. Feldman, 258 Ill. App. 3d 748 (1994) (savings statute revival concept)
- Lydon v. City of Chicago, 297 Ill. App. 3d 90 (1998) (distinguishes nullity and ratification issues in multiple suit filings)
- Hudson v. City of Chicago, 228 Ill. 2d 462 (2008) (standard for reviewing 2-619 motions (de novo))
- Johnson v. DuPage Airport Authority, 268 Ill. App. 3d 409 (1994) (2-619 standard; well-pled facts presumed true)