Plaintiffs involved in civil litigation, especially Chicago personal injury lawyers, may seek to voluntarily dismiss their case for a number of reasons. Because plaintiffs are required to keep the case moving forward, there are instances where it might make sense to dismiss the case and refile it at a later date. For instance, a plaintiff may have difficulty finding an expert, especially in medical malpractice litigation, and may require additional time to secure the proper expert to prove the plaintiff’s case. Or, personal emergencies may arise involving the plaintiff or his or her attorney.
However, before voluntarily dismissing a case in Illinois, civil litigators must make sure that by doing so their case will not become res judicata — and eliminate their right to re-file the lawsuit.
The seminal case in Illinois dealing with the right to voluntarily dismiss a complaint and the prohibition against “claim splitting” is the Illinois Supreme Court’s decision in Hudson v. City of Chicago, 228 Ill. 2d 462 (Ill. 2008).
In Hudson, a five-year-old boy died from acute asthma exacerbation , and an Illinois wrongful death lawsuit was filed alleging two counts: (1) negligence; and (2) willful and wanton misconduct. The circuit court dismissed the negligence claim with prejudice due to statutory immunity. Plaintiffs continued to pursue the willful and wanton count for the next three years. On the eve of trial, plaintiff’s counsel died, and the plaintiff voluntarily dismissed her case.
The Hudson court held that if a plaintiff “uses sections 2-1009 and 13-217 to voluntarily dismiss and refile a claim after another part of the cause of action has gone to final judgment in a previous case, that plaintiff will have engaged in [impermissible] claim-splitting.” Hudson, 228 Ill. 2d at 482. Under the rule of claim-splitting, where a cause of action is in its nature entire and indivisible, a plaintiff cannot divide it in order to maintain separate lawsuits. Best Coin-Op, Inc. v. Paul F. Ilg Supply Co., 189 Ill. App. 3d 638, 657 (Ill. 1989). In other words, a plaintiff is not allowed to sue for part of a claim in one lawsuit and sue for the remainder in another lawsuit.
In Hudson, the Court further stated that “a plaintiff who splits his claims by voluntarily dismissing and refiling part of an action after a final judgment has been entered on another part ot he case subjects himself to a res judicata defense.” Id. at 473. Therefore, once the court dismissed the negligence claim with prejudice, and plaintiff subsequently voluntarily dismissed her willful and wanton count, her entire action became res judicata — and she was precluded from re-filing her action.
in Piagentini v. Ford Motor Co., No. 1-04-3800 (1st Dist., Jan 15, 2009), the Illinois Appellate Court revisited Hudson, and held that the trial court improperly granted summary judgment in favor of Ford based upon res judicata.
In that case, plaintiffs filed a products liability suit against Ford alleging negligence and strict liability theories based upon various alleged product defects. The trial court entered an agreed order for partial summary judgment on stability and rollover allegations contained in subparagraphs of two counts. The court dismissed plaintiffs’ complaint and granted them leave to replead claims pertaining to allegations of a defective driver’s seat belt. Neither party requested Rule 304(a) language — stating that the court’s order was final and appealable. At no point did plaintiffs ever appeal the court’s summary judgment order.
Plaintiffs filed an amended complaint, but then voluntarily dismissed the claims pursuant to section 2-1009 of the Code of Civil Procedure, which the court granted. Then, within one year of the voluntarily dismissal, plaintiffs refiled the cause of action including defective seat belt allegations.
Three and a half years later, which was also three months prior to the trial date, Ford filed a motion for summary judgment based on res judicata, as described in Hudson. Ford argued that the court’s granting of partial summary judgment, “which disposed of only those allegations relating to the stability and rollover claims, operated as a bar to any and all cause of action filed after plaintiffs’ voluntary dismissal.” The trial court agreed and granted summary judgment in favor of Ford.
The Illinois appellate court for the First District reversed. It held that, unlike in Hudson, the partial summary judgment order in Pagentiniwas nota final order for two reasons: (1) partial summary judgment was grated as to certain allegations within separate counts of the complaint, but no actual count was dismissed; and (2) the order dismissing the complaint expressly granted plaintiffs 28 days to replead the allegations related to defective seat belts.
Therefore, because the trial court’s summary judgment order was not “final”, the Court held that “res judicata does not par plaintiffs’ suit against Ford and the trial court erred in granting Ford’s motion for summary judgment.”
All Chicago personal injury lawyers and litigators practicing in Illinois should be aware of the Hudson and Piagentini decisions, and should take heed before voluntarily dismissing an action.