                                  Illinois Official Reports

                                          Appellate Court



                  Pirrello v. Maryville Academy, Inc., 2014 IL App (1st) 133964



Appellate Court              BRANDY PIRRELLO, Plaintiff-Appellant,               v.   MARYVILLE
Caption                      ACADEMY, INC., Defendant-Appellee.


District & No.               First District, Third Division
                             Docket No. 1-13-3964


Filed                        October 8, 2014
Rehearing denied             November 4, 2014


Held                         In an action arising from the injuries plaintiff suffered when she
(Note: This syllabus         jumped out of a second-story window at defendant academy, the trial
constitutes no part of the   court properly found that the claim under the Family Expense Act for
opinion of the court but     the medical expenses incurred as a result of plaintiff’s injuries did not
has been prepared by the     relate back to the date of the initial complaint she timely filed against
Reporter of Decisions        defendant after attaining majority and the trial court thereafter denied
for the convenience of       her leave to file a third-amended complaint adding her father as a party
the reader.)                 and asserting his claim under the Act, since the record showed that
                             although the medical expenses were sent to the father’s insurer,
                             plaintiff’s initial complaints did not make a claim under the Act in her
                             parents’ names for the medical expenses she incurred prior to turning
                             18, her parents never assigned their rights under the Act to plaintiff,
                             and her father disclaimed any intention of joining plaintiff’s suit, and
                             under the circumstances, the relation-back doctrine was not applicable
                             and the order granting summary judgment to defendant on the claim
                             for the medical expenses plaintiff incurred before she turned 18 was
                             upheld.

Decision Under               Appeal from the Circuit Court of Cook County, No. 09-L-8387; the
Review                       Hon. William E. Gomolinski, Judge, presiding.

Judgment                     Affirmed.
     Counsel on               Law Office of Stephen J. Coukos, of Skokie (Stephen J. Coukos, of
     Appeal                   counsel), for appellant.

                              SmithAmundsen, LLC, of Chicago (Michael Resis and Carmel M.
                              Cosgrave, of counsel), for appellee.




     Panel                    JUSTICE MASON delivered the judgment of the court, with opinion.
                              Justices Lavin and Hyman concurred in the judgment and opinion.




                                                OPINION

¶1         Plaintiff, Brandy Pirrello, appeals from partial summary judgment entered in favor of
       defendant, Maryville Academy, Inc., finding that Pirrello was not entitled to recover medical
       expenses incurred prior to her eighteenth birthday under a section of the Rights of Married
       Persons Act commonly referred to as the Family Expense Act (Act) (750 ILCS 65/15(a)(1)
       (West 2008)). The trial court found that the claim under the Act did not relate back to the filing
       of Pirrello’s original complaint on July 16, 2009, and was thus barred by the applicable
       two-year statute of limitations. The court further denied Pirrello leave to file a third amended
       complaint adding her father as a party. We agree that the claim under the Act is time-barred
       and affirm.

¶2                                           BACKGROUND
¶3          On August 2, 2005, Pirrello was a resident of Maryville, which owns a facility in Bartlett,
       Illinois, that houses and treats young people with behavioral problems and mental health
       issues. Pirrello arrived at Maryville on June 30, 2005. Pirrello was then 16 years old and had
       been diagnosed with bipolar disorder and, according to the allegations of the complaint, was
       known to be at risk for suicide and other self-harming behaviors. On August 2, Pirrello jumped
       out a second-story window, landing on a cement patio and sustaining serious injuries. Pirrello
       claimed Maryville was negligent in failing to assess Pirrello’s propensity for self-harming
       behavior and take precautions to protect her.
¶4          Pirrello turned 18 on July 17, 2007, and filed her lawsuit on July 16, 2009. The complaint
       alleged that Pirrello had incurred hospital, medical and related expenses, but contained no
       claim under the Act for expenses incurred prior to the time Pirrello turned 18. Neither of
       Pirrello’s parents was joined as a plaintiff and Pirrello did not allege that she was the assignee
       of her parents’ right to recover medical expenses for her care and treatment while she was a
       minor. Pirrello later filed an amended and second amended complaint, but neither pleading
       asserted a claim under the Act either in the name of Pirrello’s parents or in her own right as
       assignee.



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¶5          On August 20, 2013, Maryville filed a motion for partial summary judgment seeking a
       determination that Pirrello was not entitled to recover medical or other related expenses
       incurred from the date of the accident until she turned 18. Maryville’s motion was supported
       by the depositions of both of Pirrello’s parents.
¶6          According to the deposition testimony, Pirrello’s parents divorced when she was eight
       years old. Pirrello was covered under her father’s health insurance. Bills for medical and
       hospital expenses incurred as a result of Pirrello’s injuries were sent to Pirrello’s father and
       submitted to his insurance carrier. Pirrello’s father never assigned his claim under the Act to
       his daughter before she turned 18. Pirrello’s father also disclaimed any intention to join in his
       daughter’s lawsuit, indicating that although he was aware that his daughter was considering
       filing a lawsuit, “[he] didn’t want to be involved in it.”
¶7          In response to Maryville’s motion, Pirrello argued that the claim under the Act should
       relate back to the filing of her original complaint given that Maryville was on notice that she
       had always sought to recover all of her medical and related expenses, all of which arose out of
       the injuries she sustained. Pirrello admitted that her father had never assigned his claim under
       the Act to her. Pirrello also sought leave to file a third amended complaint adding her father as
       a plaintiff and asserting a claim under the Act.
¶8          After briefing and argument, the trial court granted Maryville’s motion, finding that any
       claim under the Act was time-barred. The trial court further denied Pirrello’s motion for leave
       to file a third amended complaint. Pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 6,
       2010), the trial court concluded there was no just reason to delay enforcement or appeal of its
       ruling.

¶9                                               ANALYSIS
¶ 10        Summary judgment is appropriate when “the pleadings, depositions, and admissions on
       file, together with the affidavits, if any, show that there is no genuine issue as to any material
       fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS
       5/2-1005(c) (West 2012). Partial summary judgment may be granted to resolve a major issue in
       a case, even if there are disputes as to other issues. 735 ILCS 5/2-1005(c), (d) (West 2012). We
       review the trial court’s order granting partial summary judgment to Maryville de novo.
       Williams v. Manchester, 228 Ill. 2d 404, 417 (2008).
¶ 11        The Act requires parents to pay for the “expenses of the family,” which, according to
       judicial interpretation of the statute, includes medical expenses of their minor children. 750
       ILCS 65/15(a)(1) (West 2008); Graul v. Adrian, 32 Ill. 2d 345, 347 (1965); Bauer v. Memorial
       Hospital, 377 Ill. App. 3d 895, 922 (2007). The responsibility to pay medical expenses
       incurred on behalf of a minor child extends to noncustodial parents following a divorce.
       Proctor Hospital v. Taylor, 279 Ill. App. 3d 624, 628 (1996). This obligation exists only until
       the child reaches majority. See Clark v. Children’s Memorial Hospital, 2011 IL 108656, ¶ 51
       (“ ’[O]nce a child reaches the age of majority, the parents’ responsibility to support the child
       ceases, and the parents may no longer be held liable for these expenses under the [Act].’ ”
       (quoting Proctor Hospital, 279 Ill. App. 3d at 628)).
¶ 12        “The common law in turn gives parents a cause of action against a tortfeasor who, by
       injuring their child, caused them to incur the medical expenses.” Bauer, 377 Ill. App. 3d at 922
       (citing Phillips v. Dodds, 371 Ill. App. 3d 549, 554 (2007)). Such a claim is not a claim for
       damages as a result of the child’s personal injury, but is founded on the parents’ liability for the

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       child’s medical expenses under the Act. Janetis v. Christensen, 200 Ill. App. 3d 581, 588
       (1990). The cause of action belongs to the parents, and if the parents are not entitled to recover,
       neither is the child. Bauer, 377 Ill. App. 3d at 922. Parents may assign to their child their cause
       of action to recover medical expenses, but the child asserting such a claim as assignee must
       prove that her parents had a cause of action, and any defense that could have been raised
       against the parents may be asserted against the child. Id.; see also Roberts v. Sisters of Saint
       Francis Health Services, Inc., 198 Ill. App. 3d 891, 904 (1990) (finding that contributory
       negligence of parents could be asserted against child in action to recover for injuries sustained
       as a result of defendant’s negligence: “[I]f [plaintiff’s] parents had waived their right to
       recover [her] medical expenses, she would not have been entitled to recover her medical
       expenses unless her parents assigned their claim to her. *** [H]ad the parents chosen to assign
       their cause of action to [plaintiff], the issue of contributory negligence would have been
       injected into the case.”).
¶ 13       Because of its derivative nature, the limitations period applicable to a claim under the Act
       is coextensive with the limitations period applicable to the claim for the underlying injury. 735
       ILCS 5/13-203 (West 2012) (“Actions for damages ***, including actions for the medical
       expenses of minors *** deriving from injury to the person of another, *** shall be commenced
       within the same period of time as actions for damages for injury to such other person.”). Where
       the limitations period for the underlying personal injury claim is tolled, as in the case of
       minors, the period for filing the derivative claim for medical expenses related to the minor’s
       injury is likewise tolled. Id.
¶ 14       Under section 12-311 of the Illinois Code of Civil Procedure, a minor may bring an action
       for personal injuries within two years after the minor turns 18, regardless of whether the cause
       of action accrued more than two years earlier. 735 ILCS 5/13-211 (West 2012). Thus,
       Pirrello’s parents had two years from the date their daughter turned 18–or until July 16,
       2009–to file a claim under the Act. On the record before us, it is undisputed that Pirrello first
       proposed to add her father as a plaintiff for purposes of pursuing a claim under the Act on
       October 3, 2013, well beyond the limitations period applicable to the claim.
¶ 15       Pirrello invokes the relation-back doctrine to argue that her father’s claim to recover
       medical expenses incurred prior to the time she turned 18 related back to the date she filed her
       original complaint, which was within the two-year period that applied to the claim. Pirrello
       contends that because the claim under the Act derives from her personal injury claim and
       Maryville has always been aware that she is seeking to recover all of the medical and related
       expenses incurred as a result of her injury, including those incurred prior to the time she
       reached majority, application of the relation-back doctrine is appropriate. We disagree.
¶ 16       The relation-back doctrine is embodied in section 2-616(b) of the Code of Civil Procedure:
               “The cause of action *** set up in any amended pleading shall not be barred by lapse of
               time under any statute *** prescribing or limiting the time within which an action may
               be brought *** if the time prescribed or limited had not expired when the original
               pleading was filed, and if it shall appear from the original and amended pleadings that
               the cause of action asserted *** grew out of the same transaction or occurrence set up
               in the original pleading, even though the original pleading was defective in that it failed
               to allege the performance of some act or the existence of some fact or some other
               matter which is a necessary condition precedent to the right of recovery *** if the


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               condition precedent has in fact been performed ***.” 735 ILCS 5/2-616(b) (West
               2012).
       Assuming the foregoing requirements are met, the amended pleading, for the purpose of
       determining its timeliness, will relate back to the date the original pleading was filed. Id.
¶ 17       Pirrello relies on our supreme court’s decision in Porter v. Decatur Memorial Hospital,
       227 Ill. 2d 343 (2008), to argue that the claim for medical expenses under the Act grew out of
       the same transaction or occurrence alleged in her original complaint and thus her request to file
       an amended pleading adding her father as a plaintiff in order to assert that claim was timely.
       Porter dealt with a common relation-back analysis where the plaintiff’s original complaint
       contained certain specified acts of alleged medical negligence and the amended complaint,
       filed several years later, alleged an additional negligent act in the course of plaintiff’s
       treatment. The court found that because the proposed amendment related to the “same
       transaction or occurrence” alleged in the original complaint and had a “sufficiently close
       relationship” to the malpractice claim initially alleged, the amendment related back to the
       commencement of the lawsuit and was thus timely. Id. at 361-63.
¶ 18       Stressing that Maryville has always known that she intended to pursue recovery of all of
       her medical and related expenses and thus would not be prejudiced by allowing her proposed
       third amended complaint, Pirrello contends that the reasoning of Porter mandates a finding
       that the claim for medical expenses incurred prior to her eighteenth birthday is not time-barred.
       But such reasoning overlooks the fact that (i) absent an assignment from her father, Pirrello has
       never had a claim for medical expenses incurred when she was a minor and thus lacked
       standing to pursue that claim and (ii) the owner of the claim, Pirrello’s father, having never
       pursued the claim, is precluded from doing so now.
¶ 19       Citing federal authority with approval, Porter recognized that when the facts alleged in the
       amended pleading “lead to arguably different injuries,” relation back is not appropriate. Id. at
       359 (citing In re Olympia Brewing Co. Securities Litigation, 612 F. Supp. 1370, 1372 (N.D. Ill.
       1985)). As we have noted, the injury Pirrello’s father was entitled to redress is based on his
       financial responsibility to pay his minor daughter’s medical bills under the Act. That injury is
       separate and distinct from the personal injury suffered by Pirrello, a claim she elected to pursue
       in her own right upon attaining majority. Since Pirrello’s father clearly chose not to pursue a
       claim for recovery under the Act and never assigned his ability to do so to his daughter, the
       circuit court properly concluded that Pirrello’s attempt to assert this claim absent an
       assignment from her father was a legal nullity and that her proposal to amend her complaint by
       adding her father as a plaintiff could not cure that defect given that her father’s claim was
       time-barred.
¶ 20       Pirrello’s reliance on the relation-back doctrine would make sense if, for example, her
       father had in fact assigned his claim under the Act to her, but she failed to allege the existence
       of the assignment until after the expiration of the statute of limitations. Under such
       circumstances, Pirrello’s proposed third amended complaint would cure a defect in her original
       pleading by including allegations relating to the assignment, a necessary condition precedent
       to her right to recover medical expenses incurred while she was a minor. But what Pirrello
       proposed to do here was add her father as a party-plaintiff so that he could assert a claim under
       the Act on his own behalf–a claim that was untimely. Applying the relation-back doctrine in
       this case would have the effect of reviving a time-barred claim that has never been owned by
       the only party-plaintiff and was never timely asserted by the claim’s owner.

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¶ 21                                         CONCLUSION
¶ 22       The circuit court correctly concluded that the relation-back doctrine could not be used to
       revive an untimely claim under the Family Expense Act. We therefore affirm the order
       granting summary judgment to Maryville on Pirrello’s entitlement to recover medical and
       other related expenses incurred prior to the date she turned 18.

¶ 23      Affirmed.




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