Kreisman Law Offices Professional Corporation
Construction negligence lawsuits can be somewhat confusing insofar as there are typically several entities involved: the general contractor, the project manager, subcontractor, etc. Oftentimes when plaintiffs file a lawsuit following a construction site injury, there is a lot of finger pointing by the defense, so it is crucial that the plaintiff’s attorneys have a clear understanding of who each party is and what their role was on the construction job.
In the construction negligence case of The Estate of John Maggi, etc. v. RAS Development, Inc., No. 1-09-1955, the defendant tried to get the $3.2 million verdict overturned by claiming that the plaintiff had sued the wrong entity. In Maggi, the plaintiff’s attorney filed a lawsuit against the construction site’s general contractor. In its initial complaint the plaintiff identified the general contractor as RAS Wolfram.
The Chicago construction negligence complaint alleged that as the general contractor, that RAS Wolfram was negligent for its failure to provide a safe workplace and inadequately supervising the work of its subcontractors. The decedent, John Maggi, died after falling three stories through an unprotected window. The fall was prompted after the bundle of bricks Maggi was carrying broke apart, causing him to lose his balance and fall through the open window.
In its response to that initial wrongful death complaint, RAS Wolfram volunteered that it was the job’s general contractor. However, during the course of the discovery process, it became increasingly clear that the relationship might not have been so straightforward. RAS Wolfram and RAS Development were two different business entities owned and operated by the same three individuals. However, RAS Wolfram was in fact the project owner, while RAS Development was technically the project’s general contractor. Yet both companies were run by the same individuals and both names were used interchangeably by the City of Chicago when issuing permits for the construction job.
And while the plaintiff made a substantial effort to try and untangle the threads of who was who, the defense was unable to produce a contract between RAS Development and RAS Wolfram that would clearly establish which company was in fact the construction job’s general contractor. That is, they were unable to do so until the statute of limitations to amend the complaint had run. The defense attorneys produced a document entitled “Standard Form of Agreement Between Owner and
Contractor” (the Prime Contract), to perform general contracting services for the construction of the four-story residential buildings.
As a result of this document, the plaintiff’s attorney voluntary dismissed its claim against RAS Wolfram and filed a new complaint against the real general contractor, RAS Development. Even though the statute had expired, the assumption was that RAS Development had already received notice of the construction negligence lawsuit considering it was owned and run by the same owners of RAS Wolfram, who were sued under the original complaint. Therefore, the plaintiff probably presumed that there would be no contest to the amended complaint filed against RAS Development.
However, the defense did in fact attempt to dismiss the complaint, arguing that it had been filed outside of the statute of limitations. Yet nowhere in its motion did it state that the reason the complaint was filed so late was that it failed to produce the document supporting the need for a new complaint until the statute had run. While the trial court initially sided with the defense, it reconsidered its dismissal of the construction injury lawsuit and allowed the case to continue to trial.
The defense seemed to accept the judge’s ruling and filed no further motions to dismiss the Chicago construction negligence lawsuit. However, following the $3.2 million jury verdict, the defense seemed to reconsider its position and filed an appeal of the trial judge’s decision not to dismiss the case and renewed its arguments that the case should be dismissed because the amended complaint was filed outside the statute of limitations.
Yet once again, the defense’s arguments were not convincing. The appellate court agreed with the plaintiff’s position that the amended complaint related back to the original lawsuit that was filed in a timely manner and therefore did not technically miss the statute of limitations. Under Illinois Supreme Court Rule 216, an amended pleading will relate back to the originally filed complaint if: 1) the original pleading was filed before the running of the statute of limitation; 2) the later filed pleadings were based on the same facts; and 3) whether the defendant received sufficient notice of the original complaint that it “will not be prejudiced in maintaining a defense on the merits and knew or should have known that, but for a mistake concerning the identity of the proper party, the action have been brought against him or her.” 735 ILCS 5/2-616(d)(2).
The appellate court pointed to the case of “mistaken identity” regarding the real name of the general contractor and affirmed that the plaintiff attorney had done everything in his power to try and discover the correct entity. The current state of the law is patterned after Federal Rule of Civil Procedure 15(c). There had been a conflict in the federal districts on relation back until the US Supreme Court’s opinion in Krupski v. Costa Crociere, 130 S.Ct. 2485 (2010) cleared this up unequivocally. In the Krupski case the plaintiff had misnamed the proper party defendant, but the crucial issue was the fact that the true defendant knew all along about the misnomer in the pleading. The reversal by the US Supreme Court turned on that issue, which was followed here in the Maggi decision.
Likewise, the appellate court’s held that RAS Development should have known that the only reason it wasn’t originally named as a defendant was due to a misunderstanding about which “RAS” company was the general contractor. It was also pointed out by the appellate court that RAS Wolfram itself made the same mistake by identifying itself as the general contractor defendant in its initial answer to the original complaint. If the defense itself was unclear on who the general contractor was, then it is reasonable to expect that the plaintiff would be, too. Therefore, the defense’s appeal was denied, affirming the $3.2 million wrongful death jury verdict.
Kreisman Law Offices has been handling Illinois construction accident cases lawsuits for individuals and families for more than 35 years in and around Chicago, Cook County, and surrounding areas, including Melrose Park, Harwood Heights, Maywood, Westchester, and Blue Island.
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