Servicemen's Cases Can, at Times, March Forward

A 65-year-old grandmother was driving on a Chicago tollway when a man test driving a fast new sports car lost control and rear-ended her at a tollbooth. The impact left the once healthy woman a paraplegic.

The defendant driver was a member of the U.S. Marines, awaiting dispatch to Iraq for months at a time to defend his country in a time of war.

It is a different battle for the elderly plaintiff. Instead of enjoying her golden years, she is faced with numerous surgeries, painful rehabilitation and their incumbent medical bills. She filed a personal injury lawsuit to collect the damages she suffered. But a law prevents the aging woman from proceeding, even though the serviceman is insured by a property casualty insurer and liability is not in dispute.

Under Illinois Supreme Court Rule 231(c), the civil lawsuit against the Marine means the action is stayed until he returns. The rule provides, in part, that there is cause for the continuance if, in time of war a party "is in the military service of the United States or of this State and that his military service materially impairs his ability to prosecute or defend the action." As of this writing, 58 cases are on the military state calendar in the cook County Law Division.

A number of cases in the 1940s tested the rule. Oftentimes, the statue is invoked in cases involving bankruptcy or child support matters of a service member on active duty, but in the case of personal injury defendants, the statue can have an unfair impact on the innocent plaintiff, as in the case of the elderly motorist.

Upon the service member’s return, the plaintiff must go to court in Illinois on a motion and ask that the case be removed from the military state calendar. It is thereupon given a new number and can proceed, but this can go on for years with several new case numbers, given his active status with the armed forces. In the meantime, the plaintiff may not even live to see her medical bills paid by the insurer or the party who is at fault.

Federal laws granting special protection to soldiers in war date back to the Civil War. Congress enacted protection for Union soldiers and sailors in 1864 that limited civil and criminal actions.

Act of June 11, 1864, ch. 118, 13 Stat. 123 (1864). In 1918, as America prepared to enter World War I, Congress passed the Soldiers’ and Sailor’s Civil Relief Act that provided a discretionary stay of civil proceedings. Soldiers’ and Sailors’ Civil Relief Act of March 18, 1918, ch. 20, 40 Stat. 440 (1918).

The act was revised several times over the years, but mainly it allowed federal trial courts to use their sound discretion to determine whether "the defense would be ‘materially affected’ by a denial of the continuance," 50 U.S.C. app. sect. 521 (2000); Ridley v. Young, 64 Cal.App.2d 503, 514, 149 P.2d 76, 82 (1944). The court can, on its own motion, stay the proceedings, "unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service." 50 U.S.C.A. 1943 Cum.Pocket Part, sect. 510.

A major revision of the statue was signed into law Dec. 19, 2003, by President Bush, renaming it the Servicemembers Civil Relief Act. It extends coverage to members of the National Guard serving more than 30 consecutive days when "responding to a national emergency declared by the President and supported by Federal funds," Pub. L. No. 108-189, sect. 101(2)(A)(ii)(2003).

The revised SCRA also mandates an initial stay of all proceedings for at least 90 days upon the service member’s request, provided a number of conditions are met, including informing the court of the date when the service member will be available to appear. 50 U.S.C.A.App. Sect. 521 (b)(2)(2003). Any additional stays are discretionary based on the continuing material affect of the military service on the case, 50 U.S.C.S.App. Sect. 522(d)(1)(2003).

Despite the statue’s historical liberal construction, courts did not automatically uphold a stay. For example in State ex rel. Goehler v. LaDreire, 354 Mo. 515, 189 S.W.2d 986 (Mo.1945), the court found that the trial court did not abuse its discretion in denying a continuance because the interests of the parties involved were well protected. Other courts have mentioned the limited life expectancies of plaintiffs and the fact that, in reality, it is often one’s insurance company that is the defendant in an automobile accident case, thereby allowing the case to proceed despite a defendant’s absence while in the military. Tabor v. Miller, 269 F.Supp. 647 (E.D.Pa.1967).

How this will play out given the revised language of the recent statue is left to be tested by the courts today. Illinois generally holds that a litigant has no absolute right to a continuance, but that the decision lies within the sound discretion of the trial court. Sinram v. Nolan, 227 Ill.App.3d 241, 591 N.E.2d 128 (4^th Dist. 1992).

Certainly, those serving in the armed forces must be assured that their rights are bing protected at home. But in examining actions against them on a case-by-case basis, particularly when represented by competent counsel, certainly some proceedings may occur while the defendant is serving. The section of law should not be invoked to delay or defeat an orderly and expeditious trial of valid suits. Cox v. Yates, 96 Ga.App. 466, 468, 100 S.E.2d 649, 652 (3d Dist.1944). This is especially true in a liability case where the real part in interest is a property casualty company, and no personal funds are sought from those defending our country and liberty.

Judges need to be made ware when the law can work an injustice on the innocent. Court need to be cognizant of expeditiously moving discovery forward when the matter can proceed without prejudicing the rights of those who probably would like to see the matter concluded, rather than have it hanging over their heads while they have life-and-death concerns overseas.