Dardeen v. Heartland Manor, Inc.
State: Illinois
Court: 4th District Appellate
Docket No: 4-98-0006
Case Date: 06/29/1998
June 29, 1998
NO. 4-98-0006
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
IRIS DARDEEN, as Administrator of the ) Appeal from
Estate of ALMA HEAD, Deceased, ) Circuit Court of
Plaintiff-Appellant, ) Clark County
v. ) No. 97L7
THE HEARTLAND MANOR, INC., Nursing )
Center, ) Honorable
Defendant-Appellee. ) Tracy W. Resch,
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
On June 25, 1997, plaintiff Iris Dardeen, as administra-
tor of the estate of Alma Head, deceased, filed in the circuit
court of Clark County a four-count complaint against defendant
Heartland Manor, Inc., owner and licensee of Heartland Manor
Nursing Home, alleging defendant negligently caused the death of
Head on June 26, 1995. Count I attempted to allege a cause of
action based on a violation of the Nursing Home Care Act (Act) (210
ILCS 45/1-101 et seq. (West 1994)) and prayed for treble damages
pursuant to section 3-602 of the Act (210 ILCS 45/3-602 (West
1994)). In its motion to strike the prayer for relief of count I,
defendant referred to the amendment to section 3-602 of the Act
effective July 21, 1995, removing treble damages from the language
of the statute. 210 ILCS 45/3-602 (West Supp. 1995). After
considering the arguments of counsel, the trial court granted the
motion to strike the prayer for relief. Subsequently, on
plaintiff's motion, the trial court certified the following
question of law to this court pursuant to Supreme Court Rule 308
(155 Ill. 2d R. 308):
"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 before the
enactment of Public Act 89-0197 of July 21,
1995, and the pleadings to recover said damag-
es are filed subsequent to the enactment of
said Public Act?"
Having granted plaintiff's application for leave to bring this
interlocutory appeal pursuant to Rule 308, we now answer the
question: yes.
Rule 308 allows certification of questions of law. 155
Ill. 2d R. 308(a). Questions of law are considered de novo,
independent of the trial court's determination of the question.
Lucas v. Lakin, 175 Ill. 2d 166, 171, 676 N.E.2d 637, 640 (1997);
In re Lawrence M., 172 Ill. 2d 523, 526, 670 N.E.2d 710, 712
(1996).
On June 26, 1995, the date of Head's death, section 3-602
of the Act provided as follows: "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). Effective July 21, 1995, section 3-602 was
amended by Public Act 89-197 (Pub. Act 89-197, 90, eff. July 21,
1995 (1995 Ill. Laws 2472, 2480)) to provide as follows: "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). Prior to the amendment, section 3-602 allowed for
awards of treble damages for a facility's negligent failure to
provide adequate medical care, resulting in a physical injury to a
resident, as alleged in this case. Harris v. Manor Healthcare
Corp., 111 Ill. 2d 350, 366-67, 489 N.E.2d 1374, 1381 (1986).
In deciding a case, the courts apply the law as amended,
unless doing so interferes with a vested right. Vested rights are
protected from interference by the due process clause of the
Illinois Constitution (Ill. Const. 1970, art. I, 2). When no
vested right is involved, either because it is not yet perfected or
the amendment is procedural in nature, the amendment can be applied
to the existing controversy. Although not capable of precise
definition, a vested right is an expectation that is so far
perfected it cannot be taken away by the legislature; it is a
complete and unconditional demand or exemption that may be equated
with a property interest. There is no vested right in the mere
continuance of a law, and the legislature has an ongoing right to
amend the statute. First of America Trust Co. v. Armstead, 171
Ill. 2d 282, 289-91, 664 N.E.2d 36, 39-40 (1996).
Plaintiff argues she has a vested cause of action in this
case. A common law cause of action accrues at the time of injury.
Harraz v. Snyder, 283 Ill. App. 3d 254, 263, 669 N.E.2d 911, 917
(1996); see also Zielnik v. Loyal Order of Moose, Lodge No. 265,
174 Ill. App. 3d 409, 411, 528 N.E.2d 384, 386 (1988). The case at
bar does not involve a common law cause of action. In addition,
the amendment to section 3-602 of the Act does not deprive
plaintiff of her cause of action. The amendment merely changes the
nature of the damages that may be recovered.
We disagree with the analysis of the Fifth and First
District Appellate Courts in Weimann v. Meadow Manor, Inc., 285
Ill. App. 3d 455, 457-59, 674 N.E.2d 143, 145-46 (1996), and
Hernandez v. Woodbridge Nursing Home, 287 Ill. App. 3d 641, 642-46,
678 N.E.2d 788, 789-92 (1997), finding that plaintiffs whose cause
of action arose prior to the amendment may plead treble damages
because the application of the amendment to section 3-602 would
interfere with a vested right. In Weimann and Hernandez, the
amendment was enacted after the accrual of the causes of action and
after plaintiffs filed their complaints. Hernandez, 287 Ill. App.
3d at 645, 678 N.E.2d at 791; Weimann, 285 Ill. App. 3d at 458,
674 N.E.2d at 145. Although in this case plaintiff did not file
her complaint before the amendatory act was enacted or before its
effective date, that factual distinction is not the basis for our
disagreement with Weimann and Hernandez.
The Hernandez decision concludes that the amendment to
the statute is a substantive change in the law because plaintiff is
now required to prove wilful and wanton misconduct to obtain
punitive damages under the Act. Hernandez, 287 Ill. App. 3d at
645-46, 678 N.E.2d at 791-92. In Harris, however, the supreme
court made it clear that an injured respondent was entitled to seek
punitive damages for wilful and wanton misconduct and treble
damages under former section 3-602 of the Act, but the trial court
was to fashion the judgment to avoid double recovery. Harris, 111
Ill. 2d at 361-66, 489 N.E.2d at 1378-81. Therefore, an injured
resident always had to prove wilful and wanton misconduct to get
punitive damages, but not to be entitled to the treble damages
remedy, which was a different and distinct remedy under the Act.
There is no vested right in any particular remedy or
procedure. A change in law affecting the remedy or procedure will
be employed without regard to whether the cause of action accrued
before or after the change in the law or when the suit was
instituted unless there is a savings clause as to existing
legislation. Ogdon v. Gianakos, 415 Ill. 591, 597, 114 N.E.2d 686,
690 (1953). Such retrospective application of an amendment to a
statute creates a problem only if it operates unfairly against a
litigant who justifiably acted in reliance on the prior law.
Nelson v. Miller, 11 Ill. 2d 378, 383, 143 N.E.2d 673, 676 (1957).
In this case, there was no savings clause as to existing
legislation. In Winter & Hirsch, Inc. v. Passarelli, 122 Ill. App.
2d 372, 383-86, 259 N.E.2d 312, 318-19 (1970), the court allowed
plaintiffs to seek a penalty of twice the interest charged, plus
attorney fees and court costs, under the amended statute providing
for penalties for usurious rates of interest (Ill. Rev. Stat. 1965,
ch. 74, par. 6) even though at the time of the original transaction
the statute only freed an aggrieved borrower from the obligation to
pay the interest on the loan without granting the right to a
penalty. Here, the change in the law is simply the reverse of that
in Winter & Hirsch, reducing the amount that could be recovered
instead of increasing it. This case is similar to Clouse v.
Heights Finance Corp., 156 Ill. App. 3d 975, 510 N.E.2d 1 (1987).
In Clouse, the penalty provision in effect at the time of the
alleged violation of the Consumer Installment Loan Act allowed
recovery of twice the total of all charges determined by the loan
contract or the loan charges actually paid, whichever were greater
(Ill. Rev. Stat. 1979, ch. 74, par. 70(b)), but after the lawsuit
was filed the penalty provision was amended to provide simply that
the lender shall not be entitled to collect any interest on the
loan (Ill. Rev. Stat. 1985, ch. 17, par. 5426(b)). Clouse, 156
Ill. App. 3d at 976-77, 510 N.E.2d at 2. In Clouse, the amended
statute was applied to that case. Clouse, 156 Ill. App. 3d at
978, 510 N.E.2d at 3. A similar result is appropriate in this
case.
The answer to the certified question is yes, a request
for treble damages in actions brought under the Act should be
stricken when the facts alleged in support of the action occurred
prior to the amendment to section 3-602 of the Act effective July
21, 1995, and the complaint was filed subsequent to the enactment
of the amendment.
Certified question answered.
GARMAN, P.J., and STEIGMANN, J., concur.
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