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Johnson v. Village of Libertyville





Appeal from the Circuit Court of Lake County; the Hon. John L. Hughes, Judge, presiding.


This appeal is from the denial of a petition to intervene brought by Charles and Vivian Castle in a wrongful death and survival action stemming from the death of their daughter, Kathleen Ann Johnson. Kathleen was killed on October 11, 1983, when the car she was driving was struck by a police car owned by the village of Libertyville. Decedent's surviving spouse, Michael Johnson, was appointed administrator of her estate. In 1984, as decedent's personal representative, he filed suit pursuant to the Wrongful Death Act (Act) (Ill. Rev. Stat. 1983, ch. 70, par. 1 et seq.) and the survival statute (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 27-6), naming several parties defendants: the village of Libertyville; the driver of the police car, Sandra Pierce; the person being pursued by Officer Pierce, Janice Holt; and Condell Memorial Hospital, which had released Holt prior to the accident. The complaint did not include a count for loss of society by the Castles as parents of the decedent.

On September 17, 1985, the Castles (hereinafter petitioners) filed a petition to intervene in the wrongful-death action. The petition was denied by the trial court on September 24, 1985. On September 30, 1985, petitioners filed a motion to reconsider. On October 1, 1985, prior to the hearing on their motion to reconsider, the petitioners obtained an order from the Cook County probate court appointing them special administrators in decedent's estate "for the purpose of representing their interests in any suit to recover for their losses by reason of their daughter's death including without limitation the case set forth in their motion." Petitioners' motion to reconsider was heard October 10, 1985, and their attempt to intervene as special administrators was denied. However, the trial court granted the plaintiff administrator Johnson leave to file a third amended complaint in which he included new counts seeking recovery for the loss of society by petitioners.

The petitioners raise two issues on appeal: (1) whether the parents of the decedent should be allowed to intervene as of right pursuant to section 2-408 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-408) and (2) whether the special status as special administrators entitles the parents to intervene pursuant to the provisions of the Wrongful Death Act (Ill. Rev. Stat. 1983, ch. 70, par. 1 et seq.) and the directive of the probate court order appointing them special administrators.

• 1 The wrongful-death statutory provisions provide the sole remedy for determining who may sue and under what conditions. (Fountas v. Breed (1983), 118 Ill. App.3d 669, 675; In re Estate of Edwards (1982), 106 Ill. App.3d 635, 638.) The action is not one brought on behalf of an estate, nor is it a remedy for any injury to the decedent, but rather seeks to protect specific survivors and compensate them for the pecuniary loss they may have sustained by reason of the death of the injured person. Knierim v. Izzo (1961), 22 Ill.2d 73, 78; In re Estate of Fields (Mo. App. 1979), 588 S.W.2d 50, 53.

• 2-4 Under the Illinois Wrongful Death Act (Ill. Rev. Stat. 1983, ch. 70, par. 2), an action shall be brought by and in the name of the personal representative of the decedent, and any damages recovered shall be for the surviving spouse and next of kin of the decedent. Here, Michael Johnson as surviving spouse was properly appointed the administrator of decedent's estate, and as such he is the decedent's personal representative for purposes of instituting this suit. (Hayden v. Wheeler (1965), 33 Ill.2d 110.) Where there are no children of the decedent surviving (see Rodgers v. Consolidated R.R. Corp. (1985), 136 Ill. App.3d 191, 195), the parents of the decedent are considered to be the next of kin. Since decedent had no children, the petitioners, as decedent's parents, are her next of kin within the meaning of this statute. (Rusher v. Smith (1979), 70 Ill. App.3d 889, 894.) It is recognized that parents, as next of kin of an adult child, sustain a legally cognizable pecuniary loss where that child sustains wrongful injury which results in death. (Ballweg v. City of Springfield (1986), 114 Ill.2d 107; Prendergast v. Cox (1984), 128 Ill. App.3d 84.) This loss-of-society claim of the decedent's parents and any loss-of-consortium action by the surviving spouse do not exist separate and apart from an action under the Wrongful Death Act, but rather are elements for which damages may be recovered in such an action. (Knierim v. Izzo (1961), 22 Ill.2d 73, 78; Elliott v. Willis (1980), 89 Ill. App.3d 1144, 1147.) Neither does the Wrongful Death Act create an individual right in any beneficiary under the Act to bring suit; the action must be brought by and in the name of the deceased's personal representative. Rodgers v. Consolidated R.R. Corp. (1985), 136 Ill. App.3d 191, 194; Addison v. Health & Hospital Governing Com. (1977), 56 Ill. App.3d 533, 535.

The petitioners here seek to intervene as of right under section 2-408 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-408). They allege that their interests are inadequately represented by the plaintiff, Michael Johnson, as the decedent's personal representative, and that they will be bound by the court's judgment in this case. (Ill. Rev. Stat. 1983, ch. 110, par. 2-408(a)(2).) In addition, or alternatively, petitioners allege they are entitled to intervene, pursuant to section 2-408, because they would be adversely affected by a distribution of any award by the court in this matter. (Ill. Rev. Stat. 1983, ch. 110, par. 2-408(a)(3).) The petitioners' allegation that their interests would be inadequately represented if they are not allowed to intervene is based upon the plaintiff's failure to include a count in his complaint, under the Wrongful Death Act, for their loss of society until after they had twice attempted to intervene. Further, petitioners argue that the plaintiff, as a party also entitled to recover under the Wrongful Death Act, is faced with a conflict of interest in pressing his claim, based upon his interest in maximizing his degree of dependency and loss of consortium while minimizing the claim of the petitioners for loss of society.

• 5 The plaintiff, as administrator and personal representative, stands in a fiduciary relation to the beneficiaries under the Wrongful Death Act, i.e., himself and the decedent's parents. (See, e.g., Stoke v. Wheeler (1945), 391 Ill. 429, 434.) As such, he is obligated to act in the utmost good faith to protect the beneficiaries' interests and must exercise at least that degree of skill and diligence that the reasonably prudent man devotes to his like personal affairs. (In re Estate of Mulvaney (1984), 128 Ill. App.3d 133; Weiss v. Weiss (1983), 113 Ill. App.3d 793, 800; In re Estate of Lucas (1977), 48 Ill. App.3d 1009.) Whether pressed by petitioners or not, the plaintiff has an obligation to pursue recovery for the next of kin and not solely for himself as the surviving spouse. Such a duty has not been met by the plaintiff where, as here, he has failed to bring, and then seemingly resisted bringing, a count for the loss of society by the petitioners as next of kin.

We believe the reasoning employed in certain probate cases is pertinent here. It has been held that the failure of an administrator to collect debts due an estate from a corporation in which he had an interest constituted a conflict of interest, and the administrator's objectivity was not restored by his mere surrender of the corporate office. (In re Estate of Phillips (1972), 3 Ill. App.3d 1085, 1089.) Unsuitableness to administer may exist where an adverse interest of some kind of hostility to those immediately interested in the estate exists. (In re Estate of Abell (1946), 395 Ill. 337, 348; In re Estate of Storer (1971), 131 Ill. App.2d 1049, 1053-54.) However, the mere fact that the administrator as surviving spouse had a personal interest in the outcome of this wrongful-death action is not so conflicting or an interest so adverse to that of the petitioners that both cannot be adequately represented by the plaintiff. See In re Estate of Kuhn (1967), 87 Ill. App.2d 411.

The present petition to intervene was timely, and petitioners have a clear, direct interest in proving their loss and in establishing their relationship to their daughter. In regard to adequacy of representation, it has been held:

"Adequacy of representation is a complex matter, not subject to hard and fast rules; rather, courts consider a variety of factors, including the extent to which the interests of the applicant and of existing parties converge or diverge, the commonality of legal and factual positions, the practical abilities of existing parties in terms of resources and expertise, and the vigor with which existing parties represent the applicant's interest." (City of Chicago v. John Hancock Mutual Life Insurance Co. (1984), 127 Ill. App.3d 140, 145.

The defendant cites Rodgers v. Consolidated R.R. Corp. (1985), 136 Ill. App.3d 191, for the propositions that the administrator has the sole right of action and control over this litigation and that the Wrongful Death Act doesn't create an individual right in a beneficiary to bring suit. However, the reasoning in Rodgers did not preclude intervention, but only clearly expressed the policy that the Wrongful Death Act provisions sought to avoid multiple lawsuits by requiring that a single action be brought on behalf of all members of a class. The court in Rodgers stated, "[w]e need not decide, however, whether intervention is permissible because we find that the decedent's parents were not beneficiaries under the Act." Rodgers v. Consolidated R.R. Corp. (1985), 136 Ill. App.3d 191, 194.

Although not cited by petitioners, we find the case of Knobloch v. Peoria & Pekin Union Ry. Co. (1983), 118 Ill. App.3d 205, to be instructive regarding the necessity of intervention when an adverse interest will not be adequately protected by the personal representative under the Wrongful Death Act. In Knobloch, decedent was killed on the job. He was divorced at the time and had one child, Daniel, by his ex-wife. Decedent's live-in girlfriend was pregnant at the time of his death and later gave birth to a girl, Erica. Decedent's sister, as his personal representative, filed a wrongful-death action under the Federal Employer's Liability Act (45 U.S.C. § 51 (1976)). In the complaint, only Daniel was named as the decedent's next of kin. A probate court subsequently found Erica to be the decedent's daughter, and the pleadings in the FELA action were amended to include Erica as next of kin. Erica's mother, as her guardian, sought to intervene in the FELA action asserting that the claims for support for Daniel and Erica were different and in direct conflict with one another. Further, she claimed decedent's sister had a conflict of interest because she did not like Erica.

The court held that the amount of attention and care given Daniel and Erica would have differed dramatically had decedent lived and that, therefore, the children's claims for their pecuniary loss stemming from the death of their father were qualitatively different and in conflict. (Knobloch v. ...

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