The district court has granted summary judgment to a defendant attorney who admittedly filed a personal injury case after the statute of limitations expired.
The district court summarizes the procedural history of the case as follows:
“On September 1, 2006, three years and one day after Mitchell’s injury, Schoen filed a personal injury action on Mitchell’s behalf in Illinois state court. Mitchell alleged common law tort claims and claims arising under the Jones Act. The statute of limitations in Illinois for common law torts and actions under the Jones Act are two and three years, respectively. On June 7, 2007, Schoen delivered a letter to Mitchell, admitting a potential basis for Mitchell to pursue a legal malpractice claim against him based on an expired statute of limitations, and suggesting that Mitchell seek alternative counsel. On October 17, 2007, Schoen withdrew as counsel for Mitchell in the underlying action. On February 15, 2008, months after Schoen withdrew as counsel, the underlying action was dismissed for want of prosecution.
Mitchell’s subsequent counsel in the underlying action never attempted to vacate the dismissal for want of prosecution. Instead, subsequent counsel filed a complaint related to the August 2003 accident in the United States District Court for the Northern District of Indiana. The federal case was dismissed, with prejudice, on October 6, 2009 as untimely. Thereafter, Mitchell filed the instant legal malpractice case on February 11, 2011.”
The legal malpractice action began to run on February 15, 2008 when the federal case was dismissed for want of prosecution.
The court explained:
“A plaintiff is injured for purposes of legal malpractice, and the statute of limitations period begins to run, when a plaintiff has suffered a loss for which it may seek damages. Woidtke,335 F.3d at 564. When Mitchell’s underlying action was dismissed for want of prosecution on February 15, 2008, the statute of limitations on his claims under the Jones Act had already expired. Dismissal after a statute of limitations has expired is effectively a dismissal with prejudice. Hassebrock v. Bernhoft, 2012 WL 384528 at *3 (S.D.Ill. Feb. 6, 2012) (citingCardenas v. City of Chicago, 646 F.3d 1001, 1008 (7th Cir. 2011)). Accordingly, the two-year statute of limitations period for Mitchell’s legal malpractice and breach of fiduciary duty claims against defendants began to run no later than February 15, 2008 and expired no later than February 15, 2010, almost a year before he filed the instant suit on February 11, 2011.
Under Illinois law, a dismissal for want of prosecution is generally not a final and appealable order. Flores v. Dugan, 91 Ill.2d 108, 115 (1982). Further, 735 ILCS 5/13-217, commonly referred to as the Illinois saving statute (“saving statute”), provides most plaintiffs with the option of refiling an action within one year of the entry of a dismissal for want of prosecution order, or within the remaining statute of limitations, whichever is greater. Citing to the saving statute, Mitchell argues that the statute of limitations applicable to his pending claims did not begin to run until February 15, 2009, one year after the underlying action was dismissed for want of prosecution.
Unfortunately for Mitchell, the saving statute is not applicable to the underlying action and does not toll the two-year statute of limitations applicable to the instant legal malpractice case for at least two reasons. First, the saving statute only applies to cases that were timely filed at their inception. Bryson v. News America Publications, Inc., 174 Ill.2d 77, 107 (1996); Jain v. Johnson, 398 Ill.App.3d 135, 138 (2nd Dist. 2010). According to Mitchell, the underlying action was not timely filed at its inception because it was filed one day after the three-year statute of limitations applicable to claims arising under the Jones Act. Second, the saving statute does not apply to cases filed under the Jones Act and cannot extend the applicable three-year statute of limitations. Picciotto v. RGB Riverboat, 323 Ill.App.3d, 708, 709 (2nd Dist. 2001); Stephen v. Selvic Marine Towing, Co., 201 Ill.App.3d, 554, 559 (1st Dist 1990).”
Comment: Plaintiff should have sued his lawyer as soon as possible after the lawyer admitted that he missed the statute of limitations in the underlying case.