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March 21, 1995



Presiding Justice Scariano delivered the opinion of the court: Hartman and McCORMICK, JJ., concur.

The opinion of the court was delivered by: Scariano

PRESIDING JUSTICE SCARIANO delivered the opinion of the court:

On July 23, 1990, James Cruz was injured in an automobile accident and taken to defendant Illinois Masonic Medical Center where, after being injected with Nacuron, he went into full cardiac and respiratory arrest and had to be revived by a defibrillator. Mr. Cruz regained consciousness about nine days later but remained in a "vegetable state" until his death on April 23, 1993.

Before his death, however, on February 21, 1991, plaintiff, individually and as guardian of her husband's estate, filed an action ("Cruz I") against defendants, which included claims based on negligence, res ipsa loquitur, and loss of her consortium. On April 29, 1992, the parties settled the case for $2.5 million, *fn1 plaintiff agreeing both individually and as guardian "not to further prosecute or again sue" defendants for damages arising out of the incidents complained of in the Cruz I litigation.

On May 20, 1992, the parties stipulated to a dismissal of the case with prejudice, and the trial court entered an order to that effect. Thereafter, pursuant to the provisions of Circuit Court of Cook County Rule 6.4, the probate court approved the settlement and ordered that from the net amount thereof a "permanent budget for [their] care and support" be created in order to provide that the Cruz children *fn2 and plaintiff as an individual receive monthly payments of $2,750 and $2,000, respectively.

On May 10, 1993, plaintiff, as administrator of her deceased husband's estate, filed a wrongful death action (Cruz II) against defendants. Defendants moved to dismiss plaintiff's complaint (735 ILCS 5/2-619 (West 1992)), arguing that because the decedent had already settled his cause of action against them while he was still living, plaintiff's wrongful death action was barred as a matter of law pursuant to section 1 of the Wrongful Death Act (the "Act"). *fn3 (740 ILCS 180/1 (West 1993).) The trial judge agreed with defendants, and on January 21, 1994, he dismissed plaintiff's second amended complaint with prejudice. This appeal followed.

Defendants' motion to dismiss admits all facts well pleaded in plaintiff's complaint; we thus apply a de novo standard in reviewing the issues raised on appeal; in any event, the parties raise only questions of law. Toombs v. City of Champaign (1993), 245 Ill. App. 3d 580, 583, 615 N.E.2d 50, 51, 185 Ill. Dec. 755 (de novo standard applied on review of a motion to dismiss ruling); Ranquist v. Stackler (1977), 55 Ill. App. 3d 545, 550, 370 N.E.2d 1198, 1202, 13 Ill. Dec. 171 (statutory construction raises question of law requiring application of de novo standard of review); International Ins. Co. v. Sargent & Lundy (1993), 242 Ill. App. 3d 614, 622-623, 609 N.E.2d 842, 848, 182 Ill. Dec. 308 (whether language of release is clear and explicit is a matter of law).

We first address the issue of whether a decedent's settlement, prior to his death, of his personal action against a negligent defendant forecloses, pursuant to section 1 of the Act (740 ILCS 180/1 (West 1993)), the subsequent bringing of a wrongful death action in behalf of the decedent's spouse and next of kin when the suit is based on the same negligent acts of that defendant. *fn4 We hold that it does not.

Section 1 of the Act reads:

"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to [a] felony." 740 ILCS 180/1 (West 1993). *fn5

Defendant asserts that the "if death had not ensued" language of section 1 has been interpreted to create a condition precedent to bringing a wrongful death action, i.e., that the action may be brought only if the decedent has not recovered, during his lifetime, for personal injury arising from the same conduct alleged to have caused his death. Defendant relies on Wyness v. Armstrong World Indus., Inc. (1989), 131 Ill. 2d 403, 411, 546 N.E.2d 568, 572, 137 Ill. Dec. 623; Biddy v. Blue Bird Air Service (1940), 374 Ill. 506, 514, 30 N.E.2d 14, 18; Little v. Blue Goose Motor Coach Co. (1931), 346 Ill. 266, 271, 178 N.E. 496, 498; Mooney v. Chicago (1909), 239 Ill. 414, 423, 88 N.E. 194, 196; and Kessinger v. Grefco, Inc. (1993), 251 Ill. App. 3d 980, 987, 623 N.E.2d 946, 950, 191 Ill. Dec. 356, appeal denied (1994), 154 Ill. 2d 561, 631 N.E.2d 709.

Since the above mentioned cases were decided, however, this court has twice answered the question we confront in this case in the negative. Dettman-Brunsfeld v. Szanto (1994), 204 Ill. Dec. 908, 267 Ill. App. 3d 1050, 642 N.E.2d 809; Varelis v. Northwestern Memorial Hospital (1994), 266 Ill. App. 3d 578, 640 N.E.2d 17, 203 Ill. Dec. 590, appeal allowed (Ill. December 6, 1994), No. 77930.

In Varelis, plaintiffs Theodora, a widow, and James Varelis, the administrator of the decedent's estate, filed a wrongful death action against the defendant after Theodora and the decedent (her late husband), during his lifetime, had recovered damages resulting from the same medical malpractice which the plaintiffs alleged caused his death. *fn6 ( Varelis, 266 Ill. App. 3d at 580, 640 N.E.2d at 18) Reversing the trial court's dismissal of the action, the appellate court rejected the defendant's contention, similar to that of defendants here, that the language of section 1 of the Act, as well as Illinois case law interpreting that section, barred the suit. The court explained that the argument ...

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