Rallo v. Crossroads Clinic, Inc.

• Decision Date: 28 September 1990
• Docket Number: No. 1-88-2507,1-88-2507
• Citation: 565 N.E.2d 15,206 Ill.App.3d 676
• Parties: , 151 Ill.Dec. 744 David RALLO, as special administrator of the estate of Denise Colangelo, deceased, Plaintiff-Appellant, v. The CROSSROADS CLINIC, INC., a corporation, C. Sims, M.D., S.C., a professional corporation, and C. Sims, individually, Daniel Nwankwo, M.D., S.C., a professional corporation and Daniel Nwankwo, individually, P. Salter, R.N., and P. Salter, individually, Jean and Eve Alexandre, M.D., S.C., a professional corporation, and Jean Alexandre, individually, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 15

565 N.E.2d 15

206 Ill.App.3d 676, 151 Ill.Dec. 744

David RALLO, as special administrator of the estate of Denise Colangelo, deceased, Plaintiff-Appellant, v. The CROSSROADS CLINIC, INC., a corporation, C. Sims, M.D S.C., a professional corporation, and C. Sims, individually Daniel Nwankwo, M.D., S.C., a professional corporation and Daniel Nwankwo, individually, P. Salter, R.N., and P Salter, individually, Jean and Eve Alexandre, M.D., S.C., a professional corporation, and Jean Alexandre, individually Defendants-Appellees.

No. 1-88-2507.

Appellate Court of Illinois, First District, First Division.

Sept. 28, 1990.

Rehearing Denied Jan. 4, 1991.

Patrick J. Kenneally, Ltd., Chicago (Peter R. Coladarci, of counsel), for plaintiff-appellant.

Baker & McKenzie, Chicago (Francis D. Morrissey, Gerald L. Maatman, Jr., and Corinne Seither, of counsel), for defendants-appellees Jean and Eve Alexandre, M.D., S.C., and Jean Alexandre, M.D., individually.

French, Rogers, Kezelis & Kominiarek, P.C., Chicago (Algimantas Kezelis, Russell P. Veldenz and Mary M. Cunningham, of counsel), Pretzel & Stouffer, Chartered (Robert Marc Chemers, of counsel), for defendants-appellees The Crossroads Clinic.

Justice MANNING delivered the opinion of the court:

This appeal arises from an order of the trial court, granting the defendants' motion to dismiss the decedent's mother and siblings as beneficiaries in a wrongful death action. The following issues are raised on appeal: (1) Whether the trial court properly dismissed the decedent's mother and siblings as beneficiaries in a wrongful death action when the decedent was survived by two minor children; (2) whether dismissal of the mother's and siblings' claims violated the equal protection clause of the fourteenth amendment; and (3) whether the claims of the mother and siblings are barred by the statute of limitations. We affirm the order of the trial court.

On September 12, 1984, Denise Colangelo filed a lawsuit against The Crossroads Clinic, Inc., Daniel Nwankwo, M.D., C. Sims, M.D., and Jean Alexandre, M.D., alleging that they negligently failed to diagnose her as suffering from cervical cancer even though she was receiving medical treatment between 1982 and 1983. Ms. Colangelo (hereafter "decedent") died on October 6, 1984, and her death was spread of record on April 2, 1985. David Rallo was appointed by the circuit court to serve as the special administrator of her estate. At the time of her death the decedent was survived by two minor children, her mother, three brothers and four sisters.

On March 31, 1987, a second-amended complaint was filed, wherein the decedent's children, mother and siblings were added as beneficiaries in her wrongful death action, contending that they "suffered pecuniary losses compensable under the Wrongful Death Act." (Ill.Rev.Stat.1983, ch. 70, pars. 1, 2.) The Crossroads Clinic and Dr. C. Sims filed a motion to dismiss the mother and siblings as beneficiaries, alleging that since the decedent was survived by two minor children, the mother and siblings were improper beneficiaries under the Illinois Wrongful Death Act. During a hearing held on July 6, 1988, Drs. Nwankwo and Alexandre joined in the motion. On July 7, 1988, the trial court granted the defendants' motion to dismiss pursuant to section 2-615 of the Illinois Code of Civil Procedure. Ill.Rev.Stat.1987, ch. 110, par. 2-615.

Plaintiffs initially argue that a mother and siblings of a decedent who is also survived by children are beneficiaries under the Wrongful Death Act. (Ill.Rev.Stat.1983, ch. 70, par. 2.) The Wrongful Death Act provides in pertinent part that:

"Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person * * *." Ill.Rev.Stat.1983, ch. 70, par. 2.

As noted by the Wrongful Death Act, recovery of damages is limited to those beneficiaries described in the statute, i.e., decedent's surviving spouse and next of kin. (Maga v. Motorola, Inc., (1987), 163 Ill.App.3d 524, 527, 114 Ill.Dec. 619, 516 N.E.2d 774; Rodgers v. Consolidated R.R. (1985), 136 Ill.App.3d 191, 194, 90 Ill.Dec. 797, 482 N.E.2d 1080; Porter v. Klein Constr. (1987), 162 Ill.App.3d 1, 3, 113 Ill.Dec. 836, 515 N.E.2d 821; Dotson v. Sears, Roebuck & Co. (1987), 157 Ill.App.3d 1036, 1046, 110 Ill.Dec. 177, 510 N.E.2d 1208.) Therefore, the resolution of this issue turns on the interpretation of "next of kin." It is well established that the phrase "next of kin" is defined as persons surviving nearest in degree of blood and its practical use is those persons surviving who take the personal estate of the deceased under our statutory system of intestate distribution. Wilcox v. Bierd (1928), 330 Ill. 571, 581, 162 N.E. 170, overruled on other grounds, McDaniel v. Bullard (1966), 34 Ill.2d 487, 494, 216 N.E.2d 140; Schmall v. Village of Addison (1988), 171 Ill.App.3d 344, 351, 121 Ill.Dec. 452, 525 N.E.2d 258; Rodgers, 136 Ill.App.3d at 194, 90 Ill.Dec. 797, 482 N.E.2d 1080; Dotson, 157 Ill.App.3d at 1047, 113 Ill.Dec. 836, 515 N.E.2d 821; Forthenberry v. Franciscan Sisters Health Care Corp. (1987), 156 Ill.App.3d 634, 637, 108 Ill.Dec. 740, 509 N.E.2d 166; Maga, 163 Ill.App.3d at 527, 114 Ill.Dec. 619, 516 N.E.2d 774.

Section 2 of the Wrongful Death Act refers to persons who take the personal property of the deceased in case of an intestacy. (Wilcox, 330 Ill. 571, 162 N.E. 170; Carter v. Chicago & Illinois Midland Ry. Co. (1988), 168 Ill.App.3d 652, 660, 119 Ill.Dec. 194, 522 N.E.2d 856.) Therefore, in order to determine which members of the decedent's family are allowed to recover under the Wrongful Death Act, we must refer to the Probate Act. (Wilcox, 330 Ill. at 582, 162 N.E. 170; Maga, 163 Ill.App.3d at 527, 114 Ill.Dec. 619, 516 N.E.2d 774; Dotson, 157 Ill.App.3d at 1047, 113 Ill.Dec. 836, 515 N.E.2d 821.) Pursuant to the Probate Act, parents and siblings are entitled to the property of the decedent only if the decedent does not leave a surviving spouse or children. Ill.Rev.Stat.1983, ch. 110 1/2, pars. 2-1(a) through (d); Maga, 163 Ill.App.3d at 530, 114 Ill.Dec. 619, 516 N.E.2d 774.

In the case at bar we are called upon to determine who may sue and under what conditions suit may be brought. A cause of action for wrongful death did not exist at common law. Therefore, the Wrongful Death Act is a statutory source for determining who may sue and under what conditions. (In re Estate of Edwards (1982), 106 Ill.App.3d 635, 638, 62 Ill.Dec. 407, 435 N.E.2d 1379.) Under the rule of statutory construction statutes are in derogation of the common law and must be strictly construed. (Summers v. Summers (1968), 40 Ill.2d 338, 239 N.E.2d 795; Forthenberry, 156 Ill.App.3d at 636, 108 Ill.Dec. 740, 509 N.E.2d 166; Edwards, 106 Ill.App.3d at 638, 62 Ill.Dec. 407, 435 N.E.2d 1379.) The intent of the legislature in construing a particular statute must be determined by reviewing the plain language of the statute. (Light v. Proctor Community Hosp. (1989), 182 Ill.App.3d 563, 565-66, 131 Ill.Dec. 453, 538 N.E.2d 828.) The only legitimate function of the court is to enforce the law where the language of an act is unambiguous, not read into the statute exceptions and conditions which depart from the statute's plain meaning. Light, 182 Ill.App.3d at 565, 131 Ill.Dec. 453, 538 N.E.2d 828; Belfield v. Coop (1956), 8 Ill.2d 293, 134 N.E.2d 249.

Plaintiffs contend that the definition of "next of kin" set forth in Wilcox is outdated and must fall since the courts now allow recovery for loss of society as a compensable "pecuniary injury." In Elliott v. Willis (1982), 92 Ill.2d 530, 65 Ill.Dec. 852, 442 N.E.2d 163, a surviving spouse was permitted to recover for the loss of the decedent's society. In Bullard v. Barnes (1984), 102 Ill.2d 505, 517, 82 Ill.Dec. 448, 468 N.E.2d 1228, a 17-year-old minor was fatally injured in a motor vehicle accident. The court held that "parents are entitled to a presumption of pecuniary injury in the loss of a minor child's society." The supreme court expanded its holding in Ballweg v. City of Springfield (1986), 114 Ill.2d 107, 120, 102 Ill.Dec. 360, 499 N.E.2d 1373, reasoning that there is also a presumption of loss of society for an adult child. However, these cases are not dispositive of the issue before us. In both Bullard and Ballweg, the court was called upon to address the scope of the award of damages and there were no children surviving or spouse.

When Wilcox was decided, the Wrongful Death Act allowed an adult married child who was not dependent upon the deceased to share equally with totally dependent minor children. Consequently, in 1955 the statute was amended by the legislature so that the property would be distributed based on the actual dependency of the spouse and next of kin. (Rodgers, 136 Ill.App.3d at 195, 90 Ill.Dec. 797, 482 N.E.2d 1080; In re Estate of Griffy (1978), 64 Ill.App.3d 504, 21 Ill.Dec. 428, 381 N.E.2d 755.) It is especially noteworthy that although the legislature changed the method of distribution of the decedent's property, it did not expand the class of beneficiaries. (Porter, 162 Ill.App.3d at 4, 113 Ill.Dec. 836, 515 N.E.2d 821; Rodgers, 136 Ill.App.3d at 195, 90 Ill.Dec. 797, 482 N.E.2d 1080.) The term "next of kin" was unaltered in the 1955 legislative amendment. "Where a statute which has been judicially construed has been re-enacted in substantially the same terms, the General Assembly is presumed to have been familiar with such judicial construction and to have adopted it as part of the law." (Osborn v. Village of River Forest (1961), 21 Ill.2d 246, 250, 171 N.E.2d 579.) This rule of law has been restated by other courts, holding that unchanged portions of a reenacted statute will receive the same...