Post Authored by Alexander I. Passo
One of the most nerve-wracking parts of practicing as a litigator is investigating and docketing a client’s statute of limitations for their claims. I can’t count how many times I have double- and triple-checked my docketing for the date a tolling agreement expires and notes out of fear that a deadline might have been miscalculated or missed. This article provides a brief overview of determining the proper deadline for certain statutes of limitations.
The statute of limitations for a claim begins on its accrual date. However, the accrual date will differ, depending on the type of claim that is brought. For example, in tort claims, the clock starts ticking when the party suffers an injury. Further, for tort claims, you will want to docket not only the normal accrual date but also the date your client potentially discovered that their injury was a result of tortious conduct. See Moon v. Rhode, 2016 IL 119572 (2016) (holding discovery rule applies to Wrongful Death and Survival actions); see also Carlson v. Fish, 2015 IL App (1st) 140526 (discussing the application of discovery rule in legal malpractice actions). Conversely, in breach of contract cases, the claim’s accrual begins when the contract is breached, not the date when damages occur.
Once you determine your claims’ accrual dates, you will want to determine the appropriate deadline to file the action. One of the most frequent errors I see is miscalculating a claim’s deadline. Section 5 ILCS 70/1.11 sets forth the proper procedure to calculate filing times, and states the following:
“The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded.”
In simpler terms, if a written contract was breached on November 9, 2019, a party must file their breach of contract action on or before November 10, 2029, because the first day is excluded. However, the date in this example, November 10, 2029, falls on a Saturday. Therefore, the deadline is extended to November 12, 2029. See Anglin v. Dearth, 175 Ill. App. 3d 367, 369 (1st Dist. 1988); see also Pettigrove v. Parro Constr. Corp., 44 Ill. App. 2d 421, 426-27 (2d Dist. 1963) (holding petition to vacate was timely filed thirty-three days after default because thirty days fell on a Saturday and the following Monday was a legal holiday). But I recommend filing an action well before any anticipated statute of limitations deadline.
About the Author:
Alex is a commercial trial attorney with the law firm of Latimer LeVay Fyock LLC. Alex has lead counsel experience on a broad array of disputes, including closely-held shareholder/member disputes, breaches of contract, fraud, TROs and injunctions, and professional negligence actions. Alex also serves as outside general counsel for several startup and mid-market companies providing them legal advice when issues arise.
That example in your blog would amount to late filing. Excluding the Date of Accrual MEANS that the 10-years statute elapses on 11/9/2029 [3,653d day after date of accrual], not 11/10/2029 [Day 3,664], assuming there’s no holiday affecting 11/9/2029. Best to file EARLIER, as you say.