Chicago personal injury attorneys must become familiar with a recent Illinois Supreme Court decision, Hudson v. City of Chicago, 228 Ill. 2d 462 (Ill. 2008), before deciding to voluntarily dismiss an action pursuant to section 2-1009 of the Code of Civil Procedure (“Code”).
On March 30, 1999, plaintiffs filed suit against the City of Chicago alleging two counts: (1) negligence; and (2) willful and wanton misconduct in providing emergency medical services to the plaintiff’s decedent.
In October 1999, the circuit court of Cook County granted defendants’ motion to dismiss the negligence count “with prejudice” on the ground that the City and its employees had immunity under the Emergency Medical Services Systems Act. 210 ILCS 50/3.150.
On July 25, 2002, plaintiffs voluntarily dismissed the remaining willful and wanton misconduct count purusant to section 2-1009 of the Code. On July 23, 2003 (within the one-year window to re-file under section 2-1009), plaintiffs refiled their action, setting forth only one count for willful and wanton misconduct.
Defendants moved to dismiss pursuant to section 2-619 of the Code arguing that the refiled action was barred by res judicata. The trial court granted the motion, and the appellate court affirmed.
The Supreme Court framed the issue: “whether the involuntary dismissal of plaintiffs’ negligence claim and plaintiffs’ subsequent voluntary dismissal of their remaining willful and wanton misconduct claim barred the refiling of their willful and wanton misconduct claim under the doctrine of res judicata.”
The doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction “bars any subsequent actions between the same parties or their privies on the same cause of action.” Importantly, res judicata bars “not only what was actually decided in the first action but also whatever could have been decided.” LaSalle Nat’l Bank v. County Board of School Trustees, 61 Ill. 2d 524 (1975).
Three requirements must be satisfied for res judicata to apply: (1) a final judgment on the merits has been rendered by a court of competent jurisdiction; (2) an identity of cause of action exists; and (3) the parties or their privies are identical in both actions.
In Hudson, the parties did not dispute that the second and third requirements were met. However, plaintiffs argued that the first element was not satisfied because the willful and wanton misconduct count was never adjudicated on the merits.
The Supreme Court, applying Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996), held that “a plaintiff who splits his claims by voluntarily dismissing and refiling part of an action after a final judgment has been entered on another part of the case subjects himself to a res judicata defense.” Therefore, the Court affirmed the appellate court’s dismissal.
The Court was unpersuated with the plaintiff’s arguments that such a rule would have a “chilling effect” on plaintiffs’ willingness to allege novel or speculative theories of recovery “because a party may lose his or her right to take a voluntary dismissal and to refile the complaint if the novel or speculative counts are dismissed on the merits.”