APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
(Cardon Concrete Company, Third-Party, Defendant-Appellee; Annie Porter, Petitioner-Appellant)
515 N.E.2d 821, 162 Ill. App. 3d 1, 113 Ill. Dec. 836 1987.IL.1465
Appeal from the Circuit Court of Cook County; the Hon. Charles Freeman, Judge, presiding.
JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., concurs. JUSTICE PINCHAM, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
This appeal arises from an order striking Annie Porter's petition to vacate a settlement. In her appeal she urges the following: (1) as the mother of the deceased, she is a next of kin of deceased within the meaning of the Wrongful Death Act (Act) (Ill. Rev. Stat. 1985, ch. 70, par. 2) even though her son was also survived by a wife and child; (2) to hold that she is not the next of kin of her son within the meaning of the Wrongful Death Act would be unconstitutional; and (3) plaintiffs have no standing to contest her position because her petition seeks to disturb the settlement only as it affects defendants.
On November 4, 1977, Nathaniel Porter died as a result of injuries sustained. Legal proceedings were instituted that year. Plaintiffs' original and amended complaints were predicated upon violations of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 69) (count I) and the Wrongful Death Act (count II). During trial plaintiffs' claims were settled by defendants. Klein Construction, Edmier, Inc., Skidmore, Owings & Merrill, P.M. Engineers, Inc., Theodore Veldman, and third-party defendant-appellee, Cardon Concrete Company. The circuit court then entered two orders. One order dated September 30, 1982, was a dismissal order. The other order dated October 18, 1982, approved the settlement and distribution of payments to plaintiffs, Evelyn Jean Porter (wife) and Kimberly Porter (minor-child).
On December 20, 1983, upon learning of the settlement and distribution to plaintiffs, petitioner filed her section 2-1401 motion alleging, inter alia, that she was the next of kin of the deceased and that she had not received notice of the settlement. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401.) The plaintiffs filed a motion to strike the petition to vacate on the ground that petitioner lacked standing. Defendants assert this same ground for affirmance. On January 18, 1984, the circuit court granted the motion to strike. Petitioner appeals from the order striking her petition.
She initially contends that as mother of decedent, who is also survived by a spouse and child, she is a beneficiary under the Wrongful Death Act. (Ill. Rev. Stat. 1985, ch. 70, par. 2.) The Act provides, in part:
"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 . . .."
Recovery under the Act is limited to those beneficiaries clearly described in the statute. (In re Estate of Edwards (1982), 106 Ill. App. 3d 635, 435 N.E.2d 1379.) The beneficiaries as defined by the Act are the surviving spouse and next of kin. Our supreme court has previously addressed the meaning of next of kin in the statute and determined that parents are not the next of kin when a decedent leaves children (Wilcox v. Bierd (1928), 330 Ill. 571, 162 N.E. 170, overruled on other grounds, McDaniel v. Bullard (1966), 34 Ill. 2d 487, 216 N.E.2d 140), and this interpretation has since been reaffirmed. See Forthenberry v. ...