Hernandez v. Woodbridge Nursing Home

• Citation: 287 Ill.App.3d 641,678 N.E.2d 788
• Decision Date: 31 March 1997
• Docket Number: No. 1-96-1137,1-96-1137
• Parties: , 222 Ill.Dec. 916 Francisca HERNANDEZ, Plaintiff-Appellee, v. WOODBRIDGE NURSING HOME, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 788

678 N.E.2d 788

287 Ill.App.3d 641, 222 Ill.Dec. 916

Francisca HERNANDEZ, Plaintiff-Appellee, v. WOODBRIDGE NURSING HOME, Defendant-Appellant.

No. 1-96-1137.

Appellate Court of Illinois First District, Fourth Division.

March 31, 1997.

Mark P. Standa, Pretzel & Stouffer, Chartered, Chicago (Robert Marc Chemers, Anne Scheitlin Johnson, of counsel), for Plaintiff-Appellee.

Christopher T. Hurley, Christopher T. Hurley & Associates, P.C., Chicago, for Defendant-Appellant.

Justice McNAMARA delivered the opinion of the court:

Defendant, Woodbridge Nursing Home, appeals from an order denying its motion to strike a prayer for treble damages for injuries plaintiff, Francisca Hernandez, allegedly sustained as a resident of the nursing home. Plaintiff filed her complaint on February 23, 1995, and seeks treble damages under section 3-602 of the Illinois Nursing Home Care Act (210 ILCS 45/3-602 (West 1994)), as it existed on that date. During the pendency of plaintiff's action, the treble damages provision of section 3-602 was repealed by Public Act 89-197. Pub. Act 89-197, eff. July 21, 1995 (amending 210 ILCS 45/3-602 (West 1994)). The sole issue on appeal is whether the amended section 3-602 shall apply to causes of action accruing and actions filed prior to July 21, 1995. The trial court entered an order certifying the question for interlocutory appeal to this court. 155 Ill.2d R. 308. For the reasons set forth below, we hold that the trial court properly denied defendant's motion to strike plaintiff's claim for treble damages.

On February 23, 1995, plaintiff filed a one-count complaint against Woodbridge. The complaint alleges that, in August 1993, as a resident of the nursing home, plaintiff fell while attempting to transfer herself from her wheelchair to a toilet seat. The complaint also alleges that, in October 1993, plaintiff fell again when a Woodbridge employee could not support her during a transfer from a toilet seat to her wheelchair. The complaint alleges that defendant acted negligently in providing inadequate surveillance and supervision; in failing to evaluate plaintiff's risk of falling; in allowing plaintiff to fall in August and October 1993; and in not providing adequate medical care after her falls.

At the time the alleged negligence occurred in 1993, and when plaintiff filed her complaint on February 23, 1995, section 3-602 of the Illinois Nursing Home Care Act (210 ILCS 45/3-602 (West 1994)) provided:

" § 3-602. The licensee shall pay 3 times the actual damages, or $500, whichever is greater, and costs and attorney's fees to a facility resident whose rights, as specified in Part 1 of Article II of this Act, are violated." 210 ILCS 45/3-602 (West 1994).

While plaintiff's action was pending, the Illinois General Assembly enacted Public Act 89-197, effective July 21, 1995. Among other changes, Public Act 89-197 repealed the treble damages provision of section 3-602. Pub. Act 89-197, eff. July 21, 1995 (amending 210 ILCS 45/3-602 (West 1994)). Section 3-602 now provides:

" § 3-602. The licensee shall pay the actual damages and costs and attorney's fees to a facility resident whose rights, as specified in Part 1 of Article II of this Act, are violated." 210 ILCS 45/3-602 (West Supp.1995).

Upon enactment of Public Act 89-197, defendant moved to strike plaintiff's claim for treble damages. On February 28, 1996, the trial court denied defendant's motion. The court found it significant that both the incidents giving rise to plaintiff's cause of action and the filing of plaintiff's complaint occurred prior to the legislature's repeal of the treble damages provision. In conjunction with its decision, the trial court, pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308), certified the following question of law for review by this court:

"May a plaintiff plead (and ultimately be awarded) treble damages for violation of the Nursing Home Health Care Act (210 ILCS 45/1-101 et seq.) where a cause of action accrued (injury occurred) and where the lawsuit was filed at a time when the Act provided for treble damages, the Act later being amended to delete the treble damages provision?"

On May 28, 1996, this court granted leave to appeal pursuant to Rule 308 (155 Ill.2d R. 308).

Recently, the fifth district of this court addressed the identical issue before us. In Weimann v. Meadow Manor, Inc., 285 Ill.App.3d 455, 220 Ill.Dec. 872, 674 N.E.2d 143 (1996), the certified question before the court was phrased as follows:

" 'Shall treble damages be stricken from actions brought under the Illinois Nursing Home Act, 210 ILCS 45/3-602, where the alleged facts supporting said actions occurred prior to the enactment of Public Act 89-0197 on July 21, 1995[?]' " Weimann, 285 Ill.App.3d at 457, 220 Ill.Dec. at 873, 674 N.E.2d at 144.

The Weimann court answered this question in the negative. The court held: "Retroactive application of Public Act 89-197 to the existing controversy would take away or impair plaintiff's vested rights acquired under the Act prior to the enactment of Public Act 89-197 amending section 3-602." Weimann, 285 Ill.App.3d at 458, 220 Ill.Dec. at 874, 674 N.E.2d at 145.

The Weimann court cited First of America Trust Co. v. Armstead, 171 Ill.2d 282, 215 Ill.Dec. 639, 664 N.E.2d 36 (1996), where the Illinois Supreme Court recently reviewed the various principles and approaches used in determining whether a statutory amendment applies to an existing controversy on appeal. Under Armstead, a reviewing court should apply the law as it exists at the time of the appeal, unless doing so would interfere with a vested right. Armstead, 171 Ill.2d at 289-90, 215 Ill.Dec. at 642-43, 664 N.E.2d at 39-40. The court explained that where an amendment does not reach back and interfere with vested rights, there is no true retroactive impact. Armstead, 171 Ill.2d at 289, 215 Ill.Dec. at 643, 664 N.E.2d at 40. Yet, where it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect of transactions or considerations already past, an amendment is truly retroactive. Armstead, 171 Ill.2d at 290, 215 Ill.Dec. at 643, 664 N.E.2d at 40.

The Armstead court acknowledged that "[w]hether a particular expectation rises to the level of a vested right is not capable of precise definition." Armstead, 171 Ill.2d at 290, 215 Ill.Dec. at 643, 664 N.E.2d at 40. A vested right can be described as an "expectation that is so far protected that it cannot be taken away by legislation" or a "complete and unconditional demand or exemption that may be equated with a property interest." Armstead, 171 Ill.2d at 290-91, 215 Ill.Dec. at 643, 664 N.E.2d at 40. For example, the expiration of a statute of limitations creates a vested right that is beyond legislative interference. Armstead, 171 Ill.2d at 291, 215 Ill.Dec. at 643, 664 N.E.2d at 40, citing Sepmeyer v. Holman, 162 Ill.2d 249, 205 Ill.Dec. 125, 642 N.E.2d 1242 (1994). Also, a landowner in an eminent domain case would have a vested right to compensation upon the filing of an appropriate petition. Armstead, 171 Ill.2d at 291, 215 Ill.Dec. at 643, 664 N.E.2d at 40, citing City of Chicago v. Collin, 302 Ill. 270, 134 N.E. 751 (1922). Yet, in Armstead, the plaintiff had no vested rights in registering petroleum tanks and receiving compensation under a prior version of the Gasoline Storage Act (430 ILCS 15/4(b)(1)(A)(West 1992)), where the "[p]laintiff had not satisfied the statutory prerequisites so as to create a reasonable expectation of reimbursement * * * prior to the amendment." Armstead, 171 Ill.2d at 293, 215 Ill.Dec. at 644, 664 N.E.2d at 41.

Since Armstead, several appellate court decisions, including Weimann, have set forth a "vested rights" approach to determine the applicability of a statutory amendment to an existing controversy. Link v. Venture Stores, Inc., 286 Ill.App.3d 977, 222 Ill.Dec. 283, 677 N.E.2d 486 (1997) (plaintiff's vested rights impaired by amendment easing requirements for dismissal of nonmanufacturing defendant in product liability suit); In re Application of Rosewell, 286 Ill.App.3d 814, 222 Ill.Dec. 240, 677 N.E.2d 443 (1997) (amendment to Property Tax Act (35 ILCS 200/23-15 (West 1994)) would impair vested rights by reaching back and realigning rights of collector and objector JC Penney); M.E.H. v. L.H., 283 Ill.App.3d 241, 218 Ill.Dec. 702, 669 N.E.2d 1228 (1996), appeal granted, 169 Ill.2d 570, 221 Ill.Dec. 439, 675 N.E.2d 634 (1996) (defendant had vested right in statute of repose); Martin v. Department of Professional Regulation, 284 Ill.App.3d 591, 219 Ill.Dec. 759, 672 N.E.2d 267 (1996) (vested rights not impaired by allowing plaintiff to name a necessary party pursuant to amendment); Harraz v. Snyder, 283 Ill.App.3d 254, 218 Ill.Dec. 590, 669 N.E.2d 911 (1996), appeal denied, 169 Ill.2d 567, 221 Ill.Dec. 438, 675 N.E.2d 633 (1996) (plaintiff's vested rights impaired by amendment abolishing doctrine of apparent agency in medical malpractice actions against hospitals); County of Hamilton v. Department of Revenue, 279 Ill.App.3d 639, 216 Ill.Dec. 507, 665 N.E.2d 567 (1996) (vested rights not impaired by denial of tax exemptions for underground coal reserves, where statutory amendment merely clarified existing law); Valdez v. Zollar, 281 Ill.App.3d 329, 216 Ill.Dec. 500, 665 N.E.2d 560 (1996), appeal denied, 168 Ill.2d 627, 219 Ill.Dec. 577, 671 N.E.2d 744 (1996) (plaintiffs who passed nursing exam had vested rights in law existing prior to amendment that now requires passage within three years of first attempt); Board of Education, School District No. 15 v. Armstead, 279 Ill.App.3d 922, 216 Ill.Dec. 349, 665 N.E.2d 409 (1996) (no vested right to register storage tanks).

In the present case, the trial court expressed its belief that striking plaintiff's prayer for treble damages would violate plaintiff's vested rights. The Weimann court...