similar case law from other states. The Zayed panel considered that a disabled person’s estate has the same rights to assert claims as the disabled person themselves. When the disabled person dies, their death removes the legal disability, and section 13-211 passes the estate’s rights onto the legal representative. After review, the Zayed panel found “no conflict” between section 13-211 and 13-209. The Zayed panel also criticized the Giles opinion. The panel opined that Giles placed “distinct procedural disadvantage[s]” on decedents’ estates. Indeed, if Giles is cor- rect, and legal disabilities do not toll the limitations periods for legal representatives, then the Zayed decedent’s death essentially relegated the resident’s estate to a one-year limitations period. The Zayed panel then concluded that the legislature could not have intended such a “harsh and unfair” result, particularly considering that sec- tions 13-211 and 13-209 seek to extend the limitations period, not limit them. Applying these principles, the Zayed panel recognized that the resident was already under a legal disability when his cause of action accrued (i.e., when he fell from his bed). As the resident’s legal dis- ability prevented him from filing an action, section 13-211 tolled the entire two-year limitations period until he died. On that date, the resident’s death “removed” his legal disability. The full two-year limita- tions period then passed to the resident’s legal representative, who filed the action within two-years. On that basis, the Zayed panel found the action was timely and reversed the circuit court’s dismissal. After Zayed and Giles , two different inter- pretations exist on whether an injured person’s legal disability tolls the limitations period for a legal representative. Taking the cases together, it appears to come down to whether the injury caused the legal dis- ability, or vice versa. One interpretation follows Giles . Under Giles , if “a sudden, traumatic injurious event” causes the injured person’s legal disability, section 13-211 tolls the limita- tions period until something removes the Reconciling Zayed and Giles : A Chicken or Egg Problem
disability. At that time, the injured person can file their own action within the remain- ing limitations period. Yet the tolling only applies to the injured person. If the injured person dies before the legal disability is removed, the cause of action as applied to the legal representative accrued when the injury occurred. In other words: legal representatives do not benefit when the injury causes the legal disability. The other interpretation follows Zayed . Under Zayed , if one suffers an injury while already under a legal disability, section 13-211 tolls the entire limitations period until death or something else removes the legal disability. At that time, the injured person’s rights pass to the legal representa- tive. The legal representative then benefits from the remaining limitations period, which, as in Zayed , may be the full two years. In other words: legal representatives benefit when the legal disability causes or contributes to the injury. Conclusion Viewing both cases together, Giles is harsh
and could significantly limit the limita- tions period for a legal representative, but it may only apply to cases of sudden, traumatic injuries. Zayed seems intended to blunt Giles ’s harshness, but it may only apply when the injured person was legally disabled the entire time. Indeed, another decision may be required (perhaps by the Illinois Supreme Court) to determine which interpretation governs. In any event, Zayed provides helpful clarification—and perhaps even relief—to attorneys preparing to file personal injury and nursing home actions. Even so, one cannot forget that “[l]itigants are bound by the mistakes or negligence of their attorney.” Giles , 2018 IL App (1st) 163152 ¶ 19. Thus, perhaps the greatest lesson from both Zayed and Giles is that when preparing to file a lawsuit as another’s legal representative, the sooner, the better.
Bill Cook is the judicial law clerk to Judge Christopher E. Lawler in the Circuit Court of Cook County, Law Division.
The CBA Young Lawyers Section’s Moot Court Committee hosted another success- ful Moot Court Competition at the Dirksen Federal Building. Thank you to the many lawyer volunteers who helped make the event run smoothly and congratulations to the 32 student teams who competed in the event. This year’s Best Team Overall went to St. Mary’s University School of Law, with Natsumi Covey and Nicole Cooper com- peting. The Second Best Team Overall went to University of Oklahoma, with Modupe Adamolekun and Allison Christian competing.
36 January/February 2020
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