Vincent v. Alden-Park Strathmoor, Inc.

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-09-0625 Rel

Case Date: 04/07/2010

Preview:No. 2-09-0625 Filed: 4-7-10 _____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ THOMAS VINCENT, as Legal Representative ) Appeal from the Circuit Court of of the Estate of Marjorie Vincent, Deceased, ) Winnebago County. ) Plaintiff-Appellant, ) ) v. ) No. 07--L--448 ) ALDEN-PARK STRATHMOOR, INC., ) Honorable ) J. Edward Prochaska, Defendant-Appellee. ) Judge, Presiding. _____________________________________________________________________________ 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

No. 2--09--0625 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 commonlaw 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

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In addition, on October 6, 2009, we granted the Illinois Trial Lawyers Association's motion

for leave to file, pursuant to Supreme Court Rule 345(a) (210 Ill. 2d R. 345(a)), an amicus curiae brief in support of plaintiff's position. -2-

No. 2--09--0625 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 (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 (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. 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 (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 (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 (1975), the supreme court rejected an argument that common-law punitive damages might be recoverable under the

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No. 2--09--0625 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. The court noted that survival actions to recover damages for personal injury are of a compensatory nature. Mattyasovszky, 61 Ill. 2d at 33-34. 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. 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. 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. 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.

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No. 2--09--0625 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. 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. 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. These principles were most recently affirmed in Ballweg v. City of Springfield, 114 Ill. 2d 107, 117 (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. 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), 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

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No. 2--09--0625 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 "authorizes" punitive damages and that, thus, the common-law punitive damages claim survived Marjorie's death. Plaintiff concedes that nothing in the Act refers to punitive damages or resembles the explicit statutory provision for punitive damages that was considered by the court in National Bank. Indeed, the Act's remedy provision, section 3-602, allows for "actual damages and costs and attorney's fees to a facility resident whose rights *** are violated." 210 ILCS 45/3--602 (West 2006). Plaintiff acknowledges this, but identifies other provisions in the Act that allow a plaintiff to pursue "under the Act" remedies other than those expressed by section 3--602. Specifically, plaintiff cites section 3--603 of the Act, which states that a resident may "maintain an action under this Act for any other type of relief, including injunctive and declaratory relief, permitted by law." 210 ILCS 45/3--603 (West 2006). Plaintiff also notes that the Act allows recovery for intentional acts--the type that generally give rise to punitive damages (210 ILCS 45/3--601 (West 2006))--and that the Act's section applicable to class actions provides that the remedies in sections 3--601 through 3--607 "are in addition to and cumulative with any other legal remedies available to a resident" (210 ILCS 45/3--604 (West 2006)). Plaintiff contends that, in light of the following supreme court decisions and the Act's legislative history, these provisions, particularly section 3--603, reflect a statutory basis for punitive damages. We disagree. Plaintiff essentially seeks to craft a statutory basis for punitive damages by threading together provisions of the Act, its legislative history, and case law. While we appreciate plaintiff's argument, it is simply mistaken. As illustrated below: (1) the cases upon which plaintiff

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No. 2--09--0625 relies do not reflect that punitive damages are provided for by the Act; (2) the Act itself is devoid of any provision for punitive damages; and (3) the legislative history clearly and unequivocally reflects that the General Assembly did not intend that punitive damages be recoverable under the Act. 1. Plaintiff's Cases First, plaintiff's reliance on Harris v. Manor Healthcare Corp., 111 Ill. 2d 350 (1986), Dardeen v. Heartland Manor, Inc., 186 Ill. 2d 291, 300 (1999), and Eads v. Heritage Enterprises, Inc., 204 Ill. 2d 92, 105 (2003), for the proposition that a plaintiff in a survival action may recover common-law punitive damages under the Act is misplaced. In Harris, a nursing home resident (not an estate administrator, thus, not in a Survival Act claim) sued a nursing home for injuries under the Act. The plaintiff sought treble and compensatory damages under section 3--602.2 In addition, the plaintiff sought common-law punitive damages pursuant to sections 3--603 and 3--604, which allow a plaintiff to pursue other actions permitted by law. In part, the supreme court considered whether the Act violated due process by providing for treble damages, which are punitive, while also allowing a plaintiff to pursue common-law punitive damages. Harris, 111 Ill. 2d at 357. The court held that the recovery of both treble damages under the Act and common-law punitive damages would constitute double recovery for a single injury and that, therefore, a plaintiff "can recover either treble damages under the Act or common-law punitive damages, but not both." Harris, 111 Ill. 2d at 365. The court did not require that a plaintiff elect to pursue only one of the remedies, but it noted

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Prior to 1995, section 3--602 of the Act provided: "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). -7-

No. 2--09--0625 that section 3--603's provision that a resident may maintain an action "for any other type of relief *** permitted by law" did not authorize recovery of both treble damages and common-law punitive damages. Harris, 111 Ill. 2d at 363, 365. Rather, section 3--603 merely made available to plaintiffs remedies or actions for violations of the Act that are "different or distinct" from the damages remedy already provided for in section 3--602. Harris, 111 Ill. 2d at 363. Finally, the court noted that section 3--604's provision that the Act's remedies are "cumulative" to any other available legal remedy was "just another way of stating that the remedy is not exclusive." Harris, 111 Ill. 2d at 365. Thereafter, in Dardeen, an estate administrator who brought a survival action appealed the dismissal of her request under the Act for treble damages. The court considered as a certified question whether a 1995 amendment to the Act that repealed the treble damages provision could be applied retroactively. The court concluded that the amendment did not interfere with a vested right and that, therefore, it retroactively applied to the plaintiff's claim such that treble damages were unavailable. Dardeen, 186 Ill. 2d at 298-99. In doing so, the court noted that the Act's damages provision, as amended, limited recovery for violations of the Act to actual damages, costs, and attorney fees. Dardeen, 186 Ill. 2d at 292; see 210 ILCS 45/3--602 (West 1996). Moreover, the court rejected the plaintiff's argument that the amendment raised a plaintiff's burden of proof for establishing entitlement to punitive damages (from negligence to willful conduct), noting: "The repeal of one of the remedies available to plaintiff under the Act does not deprive plaintiff of her cause of action. *** The amendment to section 3--602 pertains only to the remedies available to plaintiff once plaintiff has proved her cause of action. Under the amended version of the statute, plaintiff may recover actual damages and attorney fees upon proof of defendant's negligent violations of the Act, and may additionally recover common-

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No. 2--09--0625 law punitive damages upon proof of willful and wanton misconduct on the part of defendant." (Emphasis added.) Dardeen, 186 Ill. 2d at 300. In Eads, 204 Ill. 2d at 94, the court considered the "sole issue" of whether a plaintiff asserting a cause of action under the Act must attach to the complaint a certificate of merit as required by the Healing Arts Malpractice Act (735 ILCS 5/2--622 (West 2000)). The court answered this question in the negative. Eads, 204 Ill. 2d at 109. In doing so, the court referenced the opposing nature of the two laws at issue, noting that the Healing Arts Malpractice Act expressly banned recovery of punitive damages, whereas, in contrast, "the Nursing Home Care Act allows plaintiffs to recover common-law punitive damages upon proof of willful and wanton misconduct on the part of defendants." Eads, 204 Ill. 2d at 103-04, citing Dardeen, 186 Ill. 2d at 300. We disagree with plaintiff that the aforementioned cases reflect that the Act provides for recovery of common-law punitive damages in a survival action. Each of those cases considered a narrow issue, and none considered the survivability of a punitive damages claim. Plaintiff emphasizes that Harris noted that section 3--603 allows remedies "under [the] Act" separate and distinct from those provided by section 3--602. Harris, 111 Ill. 2d at 362. It does; but, it also specifies that those remedies must be available at law, and common-law punitive damages are not available to a decedent's estate. Further, we do not read the court's statement in Dardeen--that a plaintiff may recover actual damages and attorney fees upon proof of a defendant's negligent violations of the Act "and may additionally recover common-law punitive damages upon proof of willful and wanton misconduct on the part of the defendant"--as holding that the Act provides a statutory right to recover punitive damages. Dardeen, 186 Ill. 2d at 300. Rather, the statement merely acknowledged a plaintiff's general right to seek recovery under the Act as well as common-

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No. 2--09--0625 law recovery for willful and wanton conduct. Although plaintiff makes much of the fact that the Dardeen court made this comment while considering a survival action, there was no issue before the court concerning the survival of damages. The court considered as a certified question the retroactivity of an amendment and spoke of remedies only generally and in response to the plaintiff's suggestion that the amendment changed the burden of proof for establishing punitive damages. To the extent that the court's comment could be read to suggest that common-law punitive damages remain available in a survival action, it is arguably dicta because the court did not need to consider that issue to answer the question on appeal and did not deliberately rule on it. See, e.g., Exelon Corp. v. Department of Revenue, 234 Ill. 2d 266, 281-82 (2009) (language was obiter dictum when court did not need to, and did not, deliberately rule upon a point but, rather, commented as an aside). Finally, Eads involved the attachment of a certificate; in considering this very narrow issue, the court's citation to Dardeen merely distinguished the Act's provision allowing a plaintiff to pursue common-law punitive damages for proof of willful and wanton conduct from an act that contains no such provision. We conclude that these cases reflect that the Act "authorizes" punitive damages only in the sense that it does not preclude a plaintiff from pursuing other available causes of action in addition to those that are available under the Act. As stated in Harris, the fact that the Act's remedies are cumulative to other remedies available at law means only that the Act's remedies are not exclusive-in other words, the Act does not preempt or preclude a plaintiff from pursuing other available causes of action. Harris, 111 Ill. 2d at 365. The fact that the Act permits a plaintiff to seek remedies in addition to those it provides does not equate to the Act itself providing them. Nothing in the foregoing cases reflects that the Act contains a punitive damages provision. Rather, the case law

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No. 2--09--0625 requires the Act to specifically provide for punitive damages. To the extent that plaintiff wishes us to read into the Act a provision that is not there, we decline to do so. In sum, we disagree with plaintiff that the foregoing cases reflect that our supreme court has held that the Act provides for punitive damages. Accordingly, we reject plaintiff's argument that the Act's remedy provision, like the statute at issue in National Bank, reflects express statutory authority for punitive damages. The Act's remedy provision is simply nothing like that considered in National Bank. Again, National Bank considered a statute that provided that "the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment." National Bank, 73 Ill. 2d at 17374. Punitive damages remained recoverable in that survival action because they were part of the Public Utilities Act's comprehensive regulatory scheme. National Bank, 73 Ill. 2d at 173-74; see Froud, 98 Ill. 2d at 332-33. In contrast, the remedy provision here provides only for attorney fees, costs, and actual damages, and the Act permits a resident to maintain an action under it for "any other type of relief *** permitted by law." 210 ILCS 45/3--602, 3--603 (West 2006). In that sense, the Act is more akin to that considered by the court in Duncavage v. Allen, 147 Ill. App. 3d 88 (1986).

In Duncavage, the court dismissed a survival action claim for punitive damages under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2006)), stating: "[t]he circumstances here fall short of the requirements of Froud. Although section 10(a) of the Consumer Fraud Act provides that a court may award any relief which it deems proper, the Act does not explicitly authorize punitive damages." Duncavage, 147 Ill. App. 3d at 103. The court noted that its previous recognition that punitive damages were available under

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No. 2--09--0625 the Consumer Fraud Act did not decide the issue of whether those damages could be recovered in a survival action. Duncavage, 147 Ill. App. 3d at 103; see also LaSalle National Bank v. Quality Excavation, Inc., 378 Ill. App. 3d 307, 322 (2007) (where no provision of the Adjacent Landowner Excavation Protection Act (765 ILCS 140/1 (West 2002)) expressly provided for punitive damages, court rejected the plaintiffs' arguments concerning the statute's general policy and their insistence upon "a statutory association" permitting survival of their punitive damages claims). Similarly, in Glazewski v. Coronet Insurance Co., 108 Ill. 2d 243, 251-52 (1985), our supreme court considered a claim for damages brought under the Uniform Deceptive Trade Practices Act (Deceptive Practices Act) (815 ILCS 510/1 et seq. (West 2006)). There, the defendants argued that damages were unavailable under that statute where it provided for specific relief (i.e., injunctive relief, attorney fees, and costs) but also provided that the relief available " 'is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this State.' " Glazewski, 108 Ill. 2d at 252, quoting Ill. Rev. Stat. 1983, ch. 121

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