Jo Lou Mio v. Alberto-Culver Co.

• Decision Date: 03 August 1999
• Docket Number: No. 2-98-0803.,2-98-0803.
• Citation: 306 Ill. App.3d 822,239 Ill.Dec. 864,715 N.E.2d 309
• Parties: JO LOU MIO, as Special Adm'r of the Estate of Catherine Mio Anderson, Deceased, Plaintiff-Appellant, v. ALBERTO-CULVER COMPANY et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

715 N.E.2d 309

306 Ill. App.3d 822

239 Ill.Dec. 864

JO LOU MIO, as Special Adm'r of the Estate of Catherine Mio Anderson, Deceased, Plaintiff-Appellant, v. ALBERTO-CULVER COMPANY et al., Defendants-Appellees.

No. 2-98-0803.

Appellate Court of Illinois, Second District.

August 3, 1999.

Timothy J. Touhy, James B. Zouras, Timothy J. Touhy & Associates, Ltd., Chicago, for Estate of Catherine Mio Anderson, Jo Lou Mio, Administrator.

John W. Adler, Michael G. McQuillen, Eric A. Cunningham, III, Mark S. Susina, Adler, Murphy & McQuillen, Chicago, for Alberto-Culver Corp., Estate of Robert Whitener.

Alan J. Brinkmeier, David G. Boyer, Merlo, Kanofsky & Brinkmeier, Ltd., Chicago, for AON Corp, Estate of Martin L. Koppie.

Justice RAPP delivered the opinion of the court:

Plaintiff, Jo Lou Mio (Jo Lou), appeals from the trial court's order granting concurrent motions to dismiss in favor of defendants, Alberto-Culver Company, on behalf of itself and the estate of Robert Whitener (Alberto), and AON Corporation, on behalf of itself and the estate of Martin L. Koppie (AON). Plaintiff contends that the trial court improperly concluded that she lacked standing to sue under the Wrongful Death Act (the Act) (740 ILCS 180/0.01 et seq. (West 1996)). We affirm.

I. BACKGROUND

This litigation arose from the unfortunate, tragic death of plaintiff's daughter, Catherine Mio Anderson (Catherine). On October 30, 1996, Catherine was a flight attendant aboard a corporate jet owned and operated by defendant Alberto when it crashed on takeoff from Palwaukee Municipal Airport, located in Cook County, Illinois. All the occupants of the jet were killed. At the time of her death, Catherine had been married to Craig Anderson (Craig) for 26 days. She had no children.

On October 28, 1997, Craig, as special administrator of Catherine's estate, filed a wrongful death lawsuit in the circuit court of Cook County against defendants, Alberto and AON, among others (Craig's lawsuit). The lawsuit was the only asset of Catherine's estate. It did not seek recovery on Jo Lou's behalf. Prior to commencement of Craig's lawsuit, no petition for letters of office for Catherine's estate had been filed.

On November 3, 1997, Jo Lou, alleging that she was eligible to be appointed special administrator of Catherine's estate, commenced her own wrongful death and survival action against all defendants named in this appeal (plaintiff's lawsuit). The motion to appoint Jo Lou as special administrator alleged that she was "a beneficiary entitled to recover under the Wrongful Death Act." No mention was made of Craig's pending lawsuit in Cook County.

Alberto and AON each moved separately to dismiss plaintiff's lawsuit pursuant to section 2-619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619 (West 1996)). Both motions asserted that plaintiff lacked standing to sue because she was not considered "next of kin" as that phrase has been interpreted under the Act. Defendants maintained that the determination of those considered next of kin was governed by the statutory rules of intestate distribution found in the Probate Act of 1975 (the Probate Act) (755 ILCS 5/1-1 et seq. (West 1996)) and that under those rules plaintiff was not considered next of kin. Rather, because Catherine left no children, her husband was next of kin. Therefore, Craig was entitled to bring suit under the Act to the exclusion of all others, including plaintiff. Because the Act permitted only a surviving spouse and next of kin to maintain a cause of action, defendants asserted, plaintiff lacked standing to sue.

Plaintiff opposed the motions, arguing that the definition of "next of kin" implied by this court in Johnson v. Village of Libertyville, 150 Ill.App.3d 971, 104 Ill.Dec. 211, 502 N.E.2d 474 (1986), was controlling. Under that definition, plaintiff countered, she was considered next of kin and therefore entitled to maintain a cause of action separate and distinct from Craig's.

The trial court disagreed with plaintiff, holding that the definition of "next of kin" under the Act means those persons who would take under the Probate Act had the decedent died intestate. The trial court reasoned that, because there was a surviving spouse, plaintiff was not considered next of kin under the Probate Act, so she lacked standing to maintain a separate cause of action. Thus, the trial court dismissed plaintiff's entire lawsuit with prejudice. Plaintiff filed a timely notice of appeal.

II. DISCUSSION

A. STANDARD OF REVIEW

We first address the appropriate standard of appellate review of a trial court's dismissal of a complaint pursuant to section 2-619 of the Code. A motion to dismiss under section 2-619 alerts the trial court to certain defects or defenses which avoid the legal effect of or defeat the claims in the pleadings. Sarno v. Akkeron, 292 Ill.App.3d 80, 84, 225 Ill.Dec. 973, 684 N.E.2d 964 (1997). The purpose of section 2-619 is to allow for a threshold disposition of questions of law and easily proved issues of fact. Zedella v. Gibson, 165 Ill.2d 181, 185, 209 Ill. Dec. 27, 650 N.E.2d 1000 (1995). A section 2-619 motion to dismiss admits the legal sufficiency of the cause of action (absent the defects or defenses raised by the motion) much the same way a section 2-615 motion to dismiss admits a complaint's well-pleaded facts. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 115, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993). The trial court should grant a section 2-619 motion if, after construing the pleadings and supporting documents in the light most favorable to the nonmoving party, it finds that no set of facts can be proved upon which relief could be granted. Nikolic v. Seidenberg, 242 Ill. App.3d 96, 98-99, 182 Ill.Dec. 753, 610 N.E.2d 177 (1993).

Because this process does not require the trial court to weigh facts and determine credibility, we do not defer to the trial court's judgment. Toombs v. City of Champaign, 245 Ill.App.3d 580, 583, 185 Ill.Dec. 755, 615 N.E.2d 50 (1993). Instead, we consider whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal was proper as a matter of law. Kedzie & 103rd Currency Exchange, 156 Ill.2d at 116-17, 189 Ill.Dec. 31, 619 N.E.2d 732. Hence, our review of a section 2-619 dismissal is analogous to one following a grant of summary judgment; we conduct a de novo review. Kedzie & 103rd Currency Exchange, 156 Ill.2d at 116, 189 Ill.Dec. 31, 619 N.E.2d 732. We may sustain a trial court's dismissal on any basis found in the record. Nikolic, 242 Ill.App.3d at 99, 182 Ill.Dec. 753, 610 N.E.2d 177. With these principles firmly in mind, we now turn to the merits of the parties' arguments, reviewing them de novo.

B. RIGHT TO MAINTAIN A SEPARATE CAUSE OF ACTION UNDER THE WRONGFUL DEATH ACT

The sole issue in this appeal is whether a parent of a decedent can maintain a separate cause of action under the Act in his or her own right when the decedent leaves a surviving spouse but no children. Plaintiff argues in her brief that "The plain language of the Wrongful Death Act clearly and explicitly grants a right to recovery to both a surviving spouse and the next of kin." (Emphasis in original.) Hence, plaintiff asserts, she is entitled to institute a wrongful death action in her own right. We reject plaintiff's argument.

At common law, no cause of action existed to recover damages for the wrongful death of a decedent. Li Petri v. Turner Construction Co., 36 Ill.2d 597, 600, 224 N.E.2d 841 (1967). The legislature, in enacting the Wrongful Death Act, created an independent cause of action for damages arising from the decedent's death caused by wrongful act, neglect, or default. Kessinger v. Grefco, Inc., 251 Ill.App.3d 980, 982, 191 Ill. Dec. 356, 623 N.E.2d 946 (1993). While the Act has been amended several times, its purpose remains to compensate the surviving spouse and next of kin for the pecuniary losses sustained due to the decedent's death (In re Estate of Finley, 151 Ill.2d 95, 101, 176 Ill.Dec. 1, 601 N.E.2d 699 (1992)).

The Act is the sole source for determining who may sue and under what conditions. Rodgers v. Consolidated R.R. Corp., 136 Ill.App.3d 191, 193, 90 Ill.Dec. 797, 482 N.E.2d 1080 (1985). Section 2.1 of the Act provides in relevant part:

"In the event that the only asset of the deceased estate is a cause of action arising under this Act, and no petition for letters of office for his or her estate has been filed, the court, upon motion of any person who would be entitled to a recovery under this Act, * * * may appoint a special administrator for the deceased party for the purpose of prosecuting or defending the action." 740 ILCS 180/2.1 (West 1996).

The special administrator, as personal representative, possesses the sole right to prosecute the action. Rodgers, 136 Ill. App.3d at 193, 90 Ill.Dec. 797, 482 N.E.2d 1080. The Act does not create rights in other individuals to bring suit. Rodgers, 136 Ill.App.3d at 193, 90 Ill.Dec. 797, 482 N.E.2d 1080. The personal representative of the decedent "must bring a single action on behalf of the class beneficiaries to avoid multiple lawsuits." Pasquale v. Speed Products Engineering, 166 Ill.2d 337, 361, 211 Ill.Dec. 314, 654 N.E.2d 1365 (1995).

In this case, the only asset of Catherine's estate was the wrongful death action, and no letters of office had been issued. A special administrator of the estate was eligible to be appointed.

Determining who the proper personal representative is, therefore, requires a determination of who is entitled to recover under the Act. Recovery is limited to those persons delineated in the statute. Holmgren v. National Big-4 Asbestos Removal Specialty, Inc., 228 Ill.App.3d 433, 434, 170 Ill.Dec. 517, 592 N.E.2d 1197 (1992). In a wrongful death suit, "the amount recovered * * * shall be for the exclusive benefit of the surviving spouse and next of kin of such...