Bank, 73 Ill.2d at 174, 23 Ill. Dec. at , 383 N.E.2d at 924.
In Froud, 98 Ill. 2d 324, 74 Ill. Dec. 629, 456 N.E.2d 131 (1983), the Illinois Supreme Court clarified its holding in National Bank,
and held that where a separate statute specifically provides for punitive damages, the survival statute does not abate the cause of action. Id. at 332-33, 74 Ill. Dec. at 622, 456 N.E.2d at 135. However, where punitive damages are sought under common law, the survival statute does not allow the administrator of the decedent's estate to maintain the action. Id. Once again, in 1986, the Illinois Supreme Court upheld Mattyasovszky and Froud, and suggested that any change in the law should be brought about by the state legislature rather than the courts. Ballweg v. City of Springfield, 114 Ill. 2d 107, 117-18, 102 Ill. Dec. 360, 364-64, 499 N.E.2d 1373, 1377-78 (1986).
In the present case, under the common law, George Burgess's claim for all damages, including punitive damages, abated when he died. The Survival Act does not allow the estate to recover punitive damages, because punitive damages are not "actions to recover damages for an injury to the person." Mattyasovszky, 61 Ill.2d at 33, 330 N.E.2d at 510. Furthermore, unlike the plaintiff in National Bank, Cynthia Burgess, as administrator of her husband's estate, has not cited any statute that transfers the punitive damage claim upon the decedent's death. Nor has the court found any. Therefore, the Survival Statute did not transfer George Burgess's claim for punitive damages to his estate. Thus, the estate cannot maintain the punitive damage claim.
V. Modification of Illinois Common Law.
There is yet one other argument available to the plaintiff under which she could potentially seek punitive damages. Just as the Supreme Court did in Moragne, and the Massachusetts Supreme Court did in Gaudette, it can be argued that legislative and judicial action on this subject have changed significantly enough to warrant an alteration of Illinois' common law. See Jeannette M. Watson, Punitive Damages in Survival Actions: Froud v. Celotex, 15 Loy. U. Chi. L.J. 623, 638-39 (1984) (Illinois Supreme Court should allow punitive damage claims to survive the death of the plaintiff, not under a construction of the Illinois statute, but rather under the theory that the common law doctrine of abatement should be abandoned altogether); see also Thomas F. Londrigan, Froud v. Celotex Corp.: Rebirth of an Adage, 17 J. Marshall L.Rev. 781, 794 (1984). This would prevent the courts from having to render a tortuous construction of either the Wrongful Death Act or the Survival Act. Instead, the courts would acknowledge the growth of the law in this area such that the common law doctrine of abatement would be abandoned, thus allowing all causes of action, including those for punitive damages, to pass to a decedent's estate. See Bryant v. Kroger Co., 212 Ill. App. 3d 335, 338, 156 Ill. Dec. 487, 489, 570 N.E.2d 1209, 1211 (3d Dist. 1991) ("The rule of abatement has its roots in archaic conceptions of remedy which have long since lost their validity. The reason having ceased the rule is out of place and ought not to be perpetuated.") (quoting McDaniel v. Bullard, 34 Ill. 2d 487, 216 N.E.2d 140 (1966)). Despite the logic of this argument, it is for the Illinois Supreme Court rather than the federal courts to change Illinois' common law. See Dodson v. Raynor Mfg. Co., 87 C 20283, 1988 U.S. Dist. LEXIS 15273 (N.D. Ill. Dec. 20, 1988); see also Afram Export Corp. v. Metallurgiki Halyps, S.A., 772 F.2d 1358, 1370 (7th Cir. 1985); Rusher v. Smith, 70 Ill. App. 3d 889, 896, 26 Ill. Dec. 905, 911, 388 N.E.2d 906, 912 (5th Dist. 1979). Furthermore, in light of how recently the Froud and Ballweg decisions were rendered, it is unlikely that the Illinois Supreme Court would accept such an argument.
When George Burgess died, so did the right to seek punitive damages for the defendant's actions that allegedly injured him. Punitive damages are not available under Illinois' Wrongful Death Act, nor do they pass to the decedent's estate under the Survival Act. Furthermore, the equitable considerations that might justify recognition of a common law wrongful death claim are not present here. Therefore, plaintiffs cannot recover punitive damages. For these reasons, the defendant's motion to dismiss Count IV of the plaintiff's fourth amended complaint is granted.
IT IS SO ORDERED.