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11/17/87 Karen Maga, Indiv. and As v. Motorola

November 17, 1987

KAREN MAGA, INDI

v.

AND AS SPECIAL ADM'R OF THE ESTATE OF DONALD MAGA, DECEASED, PLAINTIFF-APPELLANT,

v.

MOTOROLA, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

516 N.E.2d 774, 163 Ill. App. 3d 524, 114 Ill. Dec. 619 1987.IL.1697

Appeal from the Circuit Court of Cook County; the Hon. James S. Quinlan, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE HARTMAN delivered the opinion of the court. STAMOS and BILANDIC, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Plaintiff appeals an order dismissing certain portions of her second amended complaint pursuant to section 2-615 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-615.) The issue certified by the circuit court in this interlocutory appeal (107 Ill. 2d R. 308) is whether plaintiff may plead an action for injuries suffered by decedent's spouse and his parents and siblings under section 2 of the Wrongful Death Act. Ill. Rev. Stat. 1985, ch. 70, par. 2.

The following facts are taken from the second amended complaint. Plaintiff's decedent, Donald Maga, was struck and killed by a truck owned by defendant Motorola, Inc. (Motorola) and operated by codefendant Robert A. Hope III (Hope), a Motorola employee, on June 14, 1980. Decedent's survivors included his wife, Karen Maga (Maga), his parents, a brother and two sisters. Decedent left no surviving children.

Plaintiff Maga, individually and as special administratrix, filed a complaint against Motorola and Hope in 1981 and successfully moved, on January 20, 1987, for leave to file a second amended complaint. The second amended complaint sought damages under the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, par. 2) for alleged pecuniary losses suffered by plaintiff, as decedent's surviving spouse, and by decedent's parents and siblings, as "next of kin."

Defendants moved to strike and dismiss those portions of the complaint pertaining to decedent's next of kin under section 2-615 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2-615.) Defendants argued that: the Wrongful Death Act was intended to compensate a decedent's "surviving spouse and next of kin"; "next of kin" are those blood relatives of decedent in existence at decedent's death who would take his property if decedent died intestate; under section 2-1(c) of the Probate Act (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 2-1(c)), where the decedent leaves no descendants, the surviving spouse of an intestate decedent takes decedent's entire estate; and, since Maga survived her husband, no claim could be made on behalf of decedent's parents or siblings. The circuit court dismissed those portions of plaintiff's second amended complaint which alleged loss to and requested relief for Donald Maga's blood relatives and pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308), the circuit court certified the following question for this court's determination:

"Whether the term 'next of kin' as used in section 2 of the Wrongful Death Act means the persons nearest of kindred to the decedent, that is, those who are most nearly related to him by blood, or, whether said term means only those who are entitled to take under statutory distribution of intestate's estate.

The question of law involved may also be rephrased in the following terms. . . [are] the parents and siblings of decedent, DONALD MAGA, next of kin within the meaning of section 2 of the Wrongful Death Act, so that this Wrongful Death action may be prosecuted for their benefit as well as the benefit of the surviving spouse?"

We have allowed the interlocutory appeal. I

All well-pleaded facts in Maga's second amended complaint and all reasonable inferences taken therefrom must be taken as true in a section 2 -- 615 motion, for the purpose of determining whether those facts are sufficient, as a matter of law, to support a cause of action. Rothe v. Maloney Cadillac, Inc. (1986), 142 Ill. App. 3d 937, 939, 492 N.E.2d 497, appeal allowed (1986), 112 Ill. 2d 594.

Maga's second amended complaint seeks damages under the Wrongful Death Act, under which recovery is limited to those beneficiaries named in the statute: decedent's surviving spouse and next of kin. (Rodgers v. Consolidated R.R. Corp. (1985), 136 Ill. App. 3d 191, 194, 482 N.E.2d 1080; In re Estate of Edwards (1982), 106 Ill. App. 3d 635, 638, 435 N.E.2d 1379; Ill. Rev. Stat. 1985, ch. 70, par. 2.) Traditionally, Illinois courts have defined "next of kin" as blood relatives in existence at the time of decedent's death who would take his or her personal property in the event decedent died intestate. (Wilcox v. Bierd (1928), 330 Ill. 571, 582, 162 N.E. 170, overruled on other grounds, McDaniel v. Bullard (1966), 34 Ill. 2d 487, 216 N.E.2d 140; see also Means v. City of Chicago (N.D. Ill. 1982), 535 F. Supp. 455, 465; Gustafson v. Consumers Sales Agency, Inc. (1953), 414 Ill. 235, 245, 110 N.E.2d 865; Dotson v. Sears, Roebuck & Co. (1987), 157 Ill. App. 3d 1036, 1047, 510 N.E.2d 1208; Forthenberry v. Franciscan Sisters Health Care Corp. (1987), 156 Ill. App. 3d 634, 637, 509 N.E.2d 166; Rodgers v. Consolidated R.R. Corp., 136 Ill. App. 3d at 194-95; In re Estate of Dillman (1955), 8 Ill. App. 2d 239, 242, 131 N.E.2d 634; McGraw v. Oellig (1941), 309 Ill. App. 628, 633, 33 N.E.2d 758.) Determining which of decedent's ...


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