Vincent v. Alden-park Strathmoor Inc

• Decision Date: 07 April 2010
• Docket Number: No. 2-09-0625.,2-09-0625.
• Citation: 399 Ill.App.3d 1102,340 Ill.Dec. 396,928 N.E.2d 115
• Parties: Thomas VINCENT, as Legal Representative of the Estate of Marjorie Vincent, Deceased, Plaintiff-Appellant,v.ALDEN-PARK STRATHMOOR, INC., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

399 Ill.App.3d 1102

928 N.E.2d 115

340 Ill.Dec. 396

Thomas VINCENT, as Legal Representative of the Estate of Marjorie Vincent, Deceased, Plaintiff-Appellant,v.ALDEN-PARK STRATHMOOR, INC., Defendant-Appellee.

No. 2-09-0625.

Appellate Court of Illinois Second District.

April 7, 2010.

Daniel T. Gilbert, Barrett & Gilbert, LLP, Frank A. Perrecone, Ferolie & Perrecone, Ltd., Rockford, for Thomas Vincent.

Lisa A. Jensen, Steven W. Whitmore, Jensen Law Office, LLC, Rockford, for Alden-Park Strathmoor, Inc.

Michael F. Bonamarte III, Steven M. Levin, Levin & Perconti, Chicago, amicus curiae for Illinois Trial Lawyers' Association.

Justice JORGENSEN delivered the opinion of the court:

I. BACKGROUND

In a three-count action brought pursuant to the Survival Act ( 755 ILCS 5/27-6 (West 2006)), plaintiff, Thomas Vincent, as legal representative of the estate of Marjorie Vincent, sued defendant, Alden-Park Strathmoor, Inc., for personal injuries that Marjorie sustained prior to her death and while in defendant's care. In count I, plaintiff alleged that defendant's negligent actions violated the Nursing Home Care Act (Act) (210 ILCS 45/1-101 et seq. (West 2006)); plaintiff sought $50,000 in compensatory damages, plus attorney fees and costs pursuant to sections 3-601 and 3-602 of the Act (210 ILCS 45/3-601, 3-602 (West 2006)). In Count II, plaintiff alleged that defendant's actions violated the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2006)); plaintiff sought $50,000 in compensatory damages. In count III, entitled “Nursing Home Care Act-Survival Action-Willful and Wanton,” plaintiff alleged that defendant's willful and wanton conduct violated the Act and rendered defendant liable for actual damages, costs, and attorney fees pursuant to sections 3-601 and 3-602 of the Act. In addition, in count III plaintiff reserved the right, pursuant to section 2-604. 1 of the Code of Civil Procedure (735 ILCS 5/2-604.1 (West 2006)), to seek punitive damages for defendant's alleged willful and wanton conduct.

Defendant moved to strike plaintiff's reservation of the right to request punitive damages on the basis that the punitive damages claim did not survive Marjorie's death. On March 31, 2009, the trial court granted defendant's motion. On June 2, 2009, the court granted plaintiff's motion for leave to file an interlocutory appeal pursuant to Supreme Court Rule 308(a) (155 Ill.2d R. 308(a)). We granted the Rule 308 petition,¹ and we are asked to answer the following certified question:

“Whether common[-]law punitive damages are available in an action brought by the personal representative of the estate of a deceased nursing home resident based on the Survival Act for willful and wanton violations of the Nursing Home Care Act which caused injuries that ultimately claimed her life.”

We answer the certified question in the negative. Specifically, we conclude that common-law punitive damages are not available in a survival action brought under the Act. There is no statutory basis for punitive damages, and no equitable considerations warrant such a remedy.

II. ANALYSIS

The Survival Act (a provision within the Probate Act of 1975 (755 ILCS 5/1-1 et seq.) (West 2006)) does not create a statutory cause of action; rather, it permits an estate representative to maintain those statutory or common-law actions that had already accrued to the decedent before his or her death and that would otherwise have abated under the common law at the time of death. National Bank v. Norfolk & Western Ry. Co., 73 Ill.2d 160, 172, 23 Ill.Dec. 48, 383 N.E.2d 919 (1978). The Survival Act neither authorizes nor prohibits punitive damages; however, it is not “a neutral vehicle.” Froud v. Celotex Corp., 98 Ill.2d 324, 334, 74 Ill.Dec. 629, 456 N.E.2d 131 (1983). Only those claims that are specifically set forth in the Survival Act are shielded from abatement: “which claims abate and which survive is the result of legislative judgment.” Froud, 98 Ill.2d at 334, 74 Ill.Dec. 629, 456 N.E.2d 131. The Survival Act provides, in relevant part, that “actions to recover damages for an injury to the person” survive a decedent's death. 755 ILCS 5/27-6 (West 2006).

Here, the parties do not dispute that an estate administrator may, via the Survival Act, bring a claim pursuant to the Act for personal injuries incurred by a decedent prior to his or her death. See Myers v. Heritage Enterprises, Inc., 332 Ill.App.3d 514, 517, 266 Ill.Dec. 32, 773 N.E.2d 767 (2002). However, plaintiff asserts that “the ultimate issue of whether common-law punitive damages in a Nursing Home Care Act case survive the death of the decedent has not been decided by Illinois courts.” (Emphasis added.) We review this issue of law de novo. Marston v. Walgreen Co., 389 Ill.App.3d 337, 344, 330 Ill.Dec. 38, 907 N.E.2d 851 (2009).

A. Background Case Law

Before addressing the certified question, it is helpful to review our supreme court's treatment of the availability of punitive damages in a survival action. In considering the availability of punitive damages in a claim brought by an estate administrator via the Survival Act, the supreme court draws a distinction between punitive damages awards based in the common law and those provided by statute. Specifically, in Mattyasovszky v. West Towns Bus Co., 61 Ill.2d 31, 330 N.E.2d 509 (1975), the supreme court rejected an argument that common-law punitive damages might be recoverable under the Survival Act, stating that “for more than a hundred years,” this state has limited recovery under the Survival Act to compensatory damages. Mattyasovszky, 61 Ill.2d at 33, 330 N.E.2d 509. The court noted that survival actions to recover damages for personal injury are of a compensatory nature. Mattyasovszky, 61 Ill.2d at 33-34, 330 N.E.2d 509. Thus, the court held that a common-law action for punitive damages does not survive the decedent's death. Mattyasovszky, 61 Ill.2d at 33-34, 330 N.E.2d 509. Next, the court declined to recognize a common-law wrongful death action that would allow for the recovery of punitive damages, on the basis that, in the case before it, there were no “strong equitable considerations,” such as the unavailability of any other remedy, warranting recognition of such an action. Mattyasovszky, 61 Ill.2d at 37, 330 N.E.2d 509.

Subsequently, the court held that an action for punitive damages under the Public Utilities Act (220 ILCS 5/1-101 et seq. (West 2006)) did survive the decedent's death. In National Bank, the court found critical to survival that the Public Utilities Act contained an explicit provision that, for willful violations thereof, “the court may in addition to the actual damages, award damages for the sake of example and by way of punishment.” National Bank, 73 Ill.2d at 173-74, 23 Ill.Dec. 48, 383 N.E.2d 919. In light of this statutory language, the court concluded that the punitive damages claim survived because:

“Unquestionably, the Public Utilities Act intends to punish an offender and discourage similar offenses by allowing punitive damages to be awarded whenever an injury results from a defendant's wrongful and wilful statutory violation. It would pervert the Act's intention if reprehensible conduct, so severe in consequence that resultant injury, culminating in death, was to be insulated from punitive liability under the very act designed to vigilantly promote safety by public utilities.” National Bank, 73 Ill.2d at 173-74, 23 Ill.Dec. 48, 383 N.E.2d 919.

Further, the court noted that the Mattyasovszky decision did not abate a defendant's “ statutory liability for punitive damages upon the death of the injured person,” nor did Mattyasovszky base its denial of common-law punitive damages “on the broad proposition that punitive damages are unrecoverable when injury results in death.” (Emphasis in original.) National Bank, 73 Ill.2d at 173, 23 Ill.Dec. 48, 383 N.E.2d 919. In Froud, the court considered whether National Bank had overruled Mattyasovszky. The court answered that question in the negative, rejecting arguments that National Bank and Mattyasovszky were irreconcilable and declining an invitation to overrule Mattyasovszky. Froud, 98 Ill.2d at 335, 74 Ill.Dec. 629, 456 N.E.2d 131. The court explained that the decision in National Bank was not based solely on the Survival Act; rather National Bank presumed that, where the “legislature specifically provides for recovery of exemplary damages as part of a comprehensive regulatory scheme” and where the punitive damages provision is “part and parcel” of the act at issue, the legislature's intention was for the punitive damages claim to “be litigated regardless of whether the injured person continues to live.” Froud, 98 Ill.2d at 332-33, 74 Ill.Dec. 629, 456 N.E.2d 131.

These principles were most recently affirmed in Ballweg v. City of Springfield, 114 Ill.2d 107, 117, 102 Ill.Dec. 360, 499 N.E.2d 1373 (1986), where the court declined an invitation to overrule Froud and Mattyasovszky and re-affirmed that “Illinois law is clear that punitive damages are not recoverable under the Survival Act.” Ballweg, 114 Ill.2d at 117, 102 Ill.Dec. 360, 499 N.E.2d 1373.

Therefore, the foregoing authority establishes that absent specific statutory authority or, as some cases have stated based upon Mattyasovszky, “very strong equitable considerations” (see, e.g., Marston, 389 Ill.App.3d at 344, 330 Ill.Dec. 38, 907 N.E.2d 851), punitive damages are not permitted in a Survival Act action for personal injury. Thus, we reach the issues in this appeal. Plaintiff and amicus counsel argue that we should answer the certified question in the affirmative and conclude that common-law punitive damages claims for violations of the Act survive because: (1) the Act “authorizes” punitive damages; and/or (2) strong equitable considerations favor survival. For the following reasons, we disagree.

B. No Statutory Basis for Punitive Damages Under Nursing Home Care Act

Plaintiff argues first that the Act statutorily...