Traffic Accident Lawsuit Dismissed On Grounds Defendant Was Never Served
Bauer v. Gillham: Why a Timely Illinois Personal Injury Lawsuit Can Still Be Dismissed for Delayed Service
Filing a personal injury complaint before the statute of limitations expires is only part of the process. Illinois law also requires reasonable diligence in obtaining service on the defendant.
In Bauer v. Gillham, 2023 IL App (5th) 220635-U, the Illinois Appellate Court for the Fifth District considered whether a plaintiff’s personal injury lawsuit should be dismissed even though the complaint itself was filed before the two-year statute of limitations expired.
Matthew Bauer filed a personal injury lawsuit against Dayna Gillham arising from an August 13, 2017, automobile accident. Bauer filed the complaint on August 12, 2019, one day before the expiration of the ordinary two-year limitations period.
The problem was service of process. Bauer did not have the first summons issued until more than eight months after filing the complaint. After the first summons and an alias summons were unsuccessful, there was another 13-month period in which Bauer took no action to serve Gillham. He later obtained permission for service by publication, but waited approximately another three and a half months before providing the notice for publication.
Gillham eventually appeared in the case and moved to dismiss under Illinois Supreme Court Rule 103(b), arguing that Bauer had not exercised reasonable diligence in obtaining service. The circuit court granted the motion with prejudice, and the Fifth District affirmed.
Important:
Filing a complaint before the statute of limitations expires does not automatically protect a claim when service is substantially delayed. Rule 103(b) allows dismissal when a plaintiff fails to exercise reasonable diligence in obtaining service.
Illinois’s Two-Year Personal Injury Statute of Limitations
Illinois generally requires an action for damages for an injury to the person to be commenced within two years after the cause of action accrued under 735 ILCS 5/13-202.
The date on which a cause of action accrues can present a separate legal issue in some cases. For example, when an injury is not reasonably discoverable when it occurs, Illinois’s discovery-rule principles may affect when the limitations period begins to run.
That was not the issue in Bauer v. Gillham. The accident occurred on August 13, 2017, and the parties agreed that the complaint was filed one day before the ordinary limitations period expired.
The Deadline in Bauer
Accident: August 13, 2017
Complaint filed: August 12, 2019
Result: The complaint itself was timely filed, but service was not accomplished with reasonable diligence.
What Happened in the Accident?
On August 13, 2017, Matthew Bauer and his minor son, R.B., were involved in an automobile accident with Dayna Gillham.
According to the complaint, Gillham’s vehicle struck the rear passenger side of Bauer’s vehicle after she allegedly failed to stop at a flashing red stop signal.
Bauer alleged that he and his son suffered personal injuries as a result of the collision and filed a two-count complaint seeking damages for those injuries.
The Complaint Was Filed One Day Before the Deadline
Bauer filed his complaint on August 12, 2019, one day before the two-year limitations period expired.
Shortly after filing the complaint, Bauer’s attorney sent a demand letter to Gillham’s insurance company, along with a copy of the complaint. Counsel also sent a subpoena directed to Bauer’s employer seeking payroll records concerning lost wages.
The insurance company did not respond to the demand letter. Documentation concerning lost wages was later sent to the insurer, but Bauer’s attorney received no response.
Bauer argued that the insurer’s receipt of the complaint and demand materials gave Gillham actual knowledge of the lawsuit. The appellate court acknowledged that actual knowledge can be relevant when evaluating diligence, but explained that it is only one factor among many under Rule 103(b).
Complaint Filed
Bauer filed the lawsuit one day before the ordinary two-year limitations period expired.
Insurer Contacted
Counsel sent the complaint and a demand letter to Gillham’s insurance company.
Summons Delayed
The first summons was not issued until more than eight months after the complaint was filed.
The First Attempt at Service Came More Than Eight Months Later
The first summons was not issued until April 30, 2020, more than eight months after Bauer filed the complaint.
The summons listed Gillham’s address in Glen Ellyn, Illinois. Bauer used the Du Page County Sheriff’s Office to attempt service.
The sheriff’s office made five attempts to serve Gillham. None was successful. The return of service stated that Gillham had not been served and included the notation that “someone is home but won’t answer the door.”
Bauer argued that this demonstrated that Gillham was attempting to evade service.
The appellate court, however, did not find that alleged evasion sufficient to excuse all of the other delays in the record, particularly the initial eight-month delay and the subsequent 13-month period in which no further service effort was made.
The Alias Summons Also Failed
On June 10, 2020, Bauer obtained an alias summons and used a private process server.
The private process server made seven attempts between June 11 and June 25, 2020. Several notices were posted on the door, but Gillham was not personally served.
The process server filed a certificate of nonservice on July 21, 2020.
At that point, Bauer did not request another alias summons or take additional service action for approximately 13 months.
The Longest Gap in the Case
After the alias summons was returned unserved in July 2020, Bauer waited until August 20, 2021, to seek permission for service by publication. The Fifth District treated this 13-month period of inactivity as a significant part of the Rule 103(b) analysis.
Bauer Eventually Sought Service by Publication
On August 20, 2021, Bauer filed a motion seeking permission to serve Gillham by publication.
The circuit court granted the request on August 26, 2021.
Even after receiving permission, however, approximately three and a half more months passed before the notice was provided to the newspaper for publication.
The notice was eventually published in the Gallatin Democrat and on a statewide public-notice website on three dates: December 22, 2021; December 29, 2021; and January 5, 2022.
Gillham entered her appearance in the case on February 10, 2022.
The record therefore showed that service was ultimately accomplished by publication approximately 28 months after the complaint was filed and more than four years after the accident.
What Is Illinois Supreme Court Rule 103(b)?
Illinois Supreme Court Rule 103(b) addresses dismissal for lack of diligence in obtaining service.
The rule provides that when a plaintiff fails to exercise reasonable diligence in obtaining service before the applicable statute of limitations expires, the action may be dismissed without prejudice. When the failure to exercise reasonable diligence occurs after the limitations period has expired, the dismissal is with prejudice as to that defendant.
The rule also provides that the court must consider the totality of the circumstances when determining whether the plaintiff exercised reasonable diligence.
What Rule 103(b) Is Designed to Prevent
Rule 103(b) is designed to prevent a plaintiff from filing a lawsuit before the limitations period expires and then intentionally or unreasonably delaying service in a way that effectively extends the time for bringing the defendant into the case.
How Courts Evaluate Reasonable Diligence
Illinois courts do not use a single fixed number of days or months that automatically determines whether service was diligent.
Instead, courts consider the circumstances of the individual case. In Bauer v. Gillham, the Fifth District identified several relevant considerations, including:
How long it took to obtain service
What activities the plaintiff undertook to obtain service
Whether the plaintiff knew where the defendant lived
How easily the defendant’s location could be determined
Whether the defendant actually knew about the lawsuit
Any special circumstances affecting service
The court also considers whether actual service was ultimately accomplished and evaluates all of these circumstances together rather than focusing on one isolated event.
The Defendant Had Made a Prima Facie Showing of Lack of Diligence
In a Rule 103(b) proceeding, the defendant initially must make a prima facie showing that the plaintiff failed to exercise reasonable diligence in obtaining service.
Once that showing is made, the burden shifts to the plaintiff to provide a satisfactory explanation for the delay. The explanation should be supported by an affidavit or other competent evidence.
The Fifth District noted that a delay of more than five to seven months will generally be enough to make a prima facie showing of lack of diligence, although there is no absolute deadline that automatically decides the issue.
The burden can shift:
Once a defendant demonstrates that the delay suggests a lack of reasonable diligence, the plaintiff must explain why the delay was reasonable and justified under the circumstances.
Why the Plaintiff’s Explanation Was Not Enough
Bauer argued that several circumstances justified the delay.
First, he argued that Gillham’s insurer had actual notice of the lawsuit because counsel sent the complaint and demand letter to the insurance company.
Second, he argued that Gillham had effectively avoided personal service. The process server’s reports showed multiple unsuccessful attempts, including the notation that someone was home but would not answer the door.
Third, Bauer’s attorney argued that his law office was short-staffed during the COVID-19 pandemic because the firm’s only employee had serious health problems and was unable to work normal hours.
The Fifth District considered those arguments but concluded that they did not sufficiently explain the overall delay.
The Insurance Company’s Notice Did Not Save the Case
The appellate court acknowledged that actual knowledge of the lawsuit can be a relevant factor when evaluating diligence.
However, the court rejected the idea that notice to the defendant’s insurer automatically prevents a Rule 103(b) dismissal.
The plaintiff had still waited more than eight months before obtaining the first summons, then stopped all service efforts for another 13 months after the alias summons failed, and then waited several more months after obtaining permission for service by publication.
The court therefore concluded that the insurer’s knowledge was only one factor and did not outweigh the extensive delays demonstrated by the record.
The COVID-19 Explanation Also Did Not Cover the Entire Delay
Bauer’s attorney argued that COVID-19 and the health problems of the firm’s only employee created special circumstances that should excuse the delay.
The appellate court acknowledged those circumstances but concluded that they could not explain the initial eight-month delay because the employee’s health problems did not begin until approximately March 2020.
The court also noted that the firm was able to obtain and pursue summonses after that period, demonstrating that the staffing issue did not explain the entire history of delayed service.
Why the Timing Mattered
The court evaluated each period of inactivity rather than treating the plaintiff’s entire delay as one unexplained block. Because the COVID-19 explanation did not address the earliest eight-month delay, it could not justify the full period of inactivity.
The Defendant’s Address Was Already Known
Another significant factor was that Bauer already knew Gillham’s address.
The address listed on the summons came from the accident report, and the same address was used for the sheriff’s attempts and the private process server’s attempts.
The Fifth District explained that when a plaintiff already knows the defendant’s location, delays in obtaining service are harder to justify because the plaintiff does not need to spend additional time determining where the defendant can be found.
This distinguished Bauer’s case from prior cases in which defendants were difficult to locate or had provided inaccurate addresses.
The Court’s Final Decision
After reviewing the totality of the circumstances, the Fifth District concluded that Bauer had not provided a satisfactory explanation for the delay in serving Gillham.
The circuit court therefore did not abuse its discretion by dismissing the complaint under Rule 103(b).
Because the failure to exercise reasonable diligence occurred after the limitations period had expired, the dismissal was with prejudice as to Gillham.
Final Result in Bauer v. Gillham
Complaint: Filed August 12, 2019, before the limitations period expired.
Service: Not accomplished with reasonable diligence.
Trial court: Dismissed the lawsuit with prejudice.
Appellate court: Affirmed the dismissal.
What Bauer v. Gillham Means for Illinois Personal Injury Cases
Bauer v. Gillham illustrates an important distinction between filing a lawsuit and serving the defendant.
Filing a complaint before the statute of limitations expires is essential, but a plaintiff must also take reasonable steps to obtain service. A prolonged period of inactivity can result in dismissal under Rule 103(b), particularly when the limitations period has already expired.
This is especially important when the plaintiff knows where the defendant lives. Repeated unsuccessful service attempts may be relevant, but courts can still look at whether the plaintiff promptly followed up with additional summonses, alternative service methods, or other reasonable efforts.
Timely Filing Is Not the Entire Process
A plaintiff should not assume that filing a complaint immediately before the statute of limitations expires ends the timing concerns. After filing, prompt and documented efforts to obtain service can be critical to preserving the claim.
Rule 103(b) Is Different From the Statute of Limitations
The statute of limitations and Rule 103(b) address related but different issues.
The statute of limitations concerns how long a plaintiff has to commence an action. Rule 103(b) concerns whether the plaintiff exercised reasonable diligence in obtaining service after the action was filed.
In Bauer, the complaint was filed on time. The lawsuit nevertheless failed because the plaintiff did not meet the separate diligence requirement for serving the defendant.
Statute of Limitations
Determines when a personal injury action generally must be commenced. For ordinary personal injury claims, 735 ILCS 5/13-202 generally provides a two-year period.
Rule 103(b)
Addresses whether the plaintiff exercised reasonable diligence in obtaining service after filing the lawsuit.
A Note About This Decision
Bauer v. Gillham was filed under Illinois Supreme Court Rule 23. The Fifth District’s May 15, 2023, order expressly states that it is not precedential except in the limited circumstances allowed under Rule 23(e)(1).
The decision is therefore useful for explaining how the court applied Rule 103(b) to the facts of this particular case, but it should not be presented as a precedential Illinois appellate opinion.
Talk to an Illinois Personal Injury Lawyer
A personal injury claim can involve important deadlines before a case ever reaches the stage of negotiating damages or preparing for trial. Filing the lawsuit, issuing summonses, locating the defendant, and obtaining service can each become important parts of protecting a claim.
Patel Law, PC represents Illinois residents pursuing personal injury claims arising from traffic accidents and other injuries. Our attorneys can help evaluate the applicable deadlines and the procedural steps required to preserve a claim.
Contact our Champaign personal injury lawyers to discuss your case and the legal options available to you.
Sources
Bauer v. Gillham, 2023 IL App (5th) 220635-U — Official Illinois Courts Opinion
Illinois Supreme Court Rule 103(b) — Alias Summons; Dismissal for Lack of Diligence
735 ILCS 5/13-202 — Personal Injury Statute of Limitations
