Bill Lindsay and Josh Patrick Obtain Dismissal with Prejudice of Automobile Negligence Case in McHenry County, Illinois Due to Plaintiff’s Lack of Diligence in Serving Summons and Complaint

Feb 17, 2023 Auto
Bill Lindsay and Josh Patrick represented a motorist that struck an outdoor dining table abutting a parking stall while navigating the parking space.  The two plaintiffs seated at the table alleged that they were seriously injured when their dining table was pushed backwards in to them.  Our client’s insurer attempted […]

Bill Lindsay and Josh Patrick represented a motorist that struck an outdoor dining table abutting a parking stall while navigating the parking space.  The two plaintiffs seated at the table alleged that they were seriously injured when their dining table was pushed backwards in to them.  Our client’s insurer attempted to negotiate settlement before suit was filed, but never received a settlement demand and was informed by plaintiffs’ counsel just before the two-year statute of limitations that counsel did not have sufficient information on his clients’ damages and would be filing suit to protect the statute.

Plaintiffs’ counsel failed to appear for the initial court date and so the case was dismissed for want of prosecution (“DWP”).  After several months, plaintiffs’ counsel moved to vacate the DWP, which the Court granted.  Plaintiffs’ counsel next failed to appear at the subsequent court appearance and the case was DWP’d for a second time.  Several months again passed until plaintiffs’ counsel again moved to vacate the DWP, which the Court again granted.  Only then (11 ½ months after suit was filed) did plaintiffs issue their initial Summons, with defendant served shortly thereafter.

We moved for dismissal pursuant to Illinois Supreme Court Rule 103(b), which provides for dismissal where a plaintiff fails to exercise reasonable diligence in serving a defendant.  Plaintiffs’ counsel responded by arguing that the insurer previously indicated that it was not contesting liability and that the defendant therefore was not prejudiced by the delay in service.

The Court issued a Memorandum and Opinion granting our motion to dismiss with prejudice, holding that plaintiffs’ counsel had not offered a sufficient justification for the delay in issuing the initial Summons and that counsel’s arguments as to why the case was twice DWP’d were insufficient, rendering the lack of prejudice to the defendant irrelevant.  Additionally, because the eventual service occurred after the statute of limitations ran, dismissal was with prejudice.

The history of this case also highlights that positive litigation results can be achieved through proactive claims handling techniques.  Here, the claims professional made every reasonable effort to negotiate in good faith before suit was filed without waiving the insured’s rights when suit was eventually filed.  When suit was filed, claims took the initiative to discern what had transpired and allowed for a collaborative approach with assigned counsel in formulating an effective strategy to monitor case developments and act decisively once service was effectuated.