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10/26/95 THEODORA VARELIS ET AL. v. NORTHWESTERN

October 26, 1995

THEODORA VARELIS ET AL., APPELLEES,
v.
NORTHWESTERN MEMORIAL HOSPITAL, APPELLANT.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Joseph N. Casciato, Judge, presiding.

The Honorable Justice Miller delivered the opinion of the court:

The opinion of the court was delivered by: Miller

JUSTICE MILLER delivered the opinion of the court:

The question raised in this appeal is whether the personal representative of a decedent may pursue an action under the Wrongful Death Act even though the decedent, during his lifetime, obtained a judgment in a personal injury action based on the same occurrence. The courts below gave conflicting answers to this question, with the trial judge barring the wrongful death action and the appellate court permitting the action to go forward (266 Ill. App. 3d 578). We allowed the defendant's petition for leave to appeal (145 Ill. 2d R. 315(a)). We now reverse the judgment of the appellate court and affirm the judgment of the circuit court.

Spiros Varelis and his wife, Theodora, brought a personal injury action in the circuit court of Cook County, alleging that Spiros was injured when he was given 25 times the prescribed dose of magnesium sulfate while he was a patient at defendant Northwestern Memorial Hospital. The trial judge entered summary judgment in the plaintiffs' favor on the question of liability. The matter then proceeded to trial for a determination of the plaintiffs' damages. In December 1988, a jury returned a verdict of $2,248,434 in favor of Spiros Varelis on his claim for personal injuries and a verdict of $573,500 in favor of his wife, Theodora, on her claim for loss of consortium. Judgment was entered on the verdicts. The plaintiffs then filed a post-trial motion, challenging the amounts of the damage awards. That motion was pending at the time of Spiros's death on May 7, 1989. The parties entered into satisfactions of judgments in July 1989; the defendant paid the full amounts of the verdicts, and the post-trial motion was withdrawn at that time. The releases executed by the plaintiffs purported to reserve whatever rights they might have to relief under the Wrongful Death Act.

The action that forms the basis for this appeal was filed in the circuit court of Cook County on July 3, 1989, by the decedent's wife and estate. The complaint alleges that the death was caused by the same overdose of magnesium sulfate that formed the basis for the earlier personal injury action. The defendant moved to dismiss the wrongful death action on the ground that it was barred because the decedent had already recovered, during his lifetime, a judgment in a personal injury action arising from the same alleged negligence. After briefing and argument by the parties, the trial judge denied the dismissal motion. The judge denied a subsequent motion by the defendant seeking certification of the question for purposes of an interlocutory appeal under Supreme Court Rule 308 (134 Ill. 2d R. 308). The matter was later assigned to a different judge, following the first judge's death. The parties filed cross-motions for summary judgment. The second judge granted the defendant's motion and denied the plaintiffs' motion. The judge agreed with the defendant that the judgment entered in the decedent's personal injury action barred his personal representative from pursuing a wrongful death action based on the same underlying negligence.

The plaintiffs appealed. The appellate court reversed the circuit court judgment and remanded the cause for further proceedings. (266 Ill. App. 3d 578.) The appellate court concluded that the present wrongful death action was not barred, reasoning that the present wrongful death action was distinct from the decedent's earlier personal injury action because it sought a different recovery for a different harm. We allowed the defendant's petition for leave to appeal. (145 Ill. 2d R. 315(a).) We later granted leave to the Illinois Hospital and Health Systems Association and the Illinois Association of Defense Trial Counsel to submit briefs as amici curiae in behalf of the defendant (134 Ill. 2d R. 345).

I

At the time relevant here, the Wrongful Death Act provided:

"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 felony." Ill. Rev. Stat. 1987, ch. 70, par. 1.

Resolution of the present case centers on the language in the Act concerning the decedent's right to pursue a claim for damages "if death had not ensued." The defendant argues that this provision of the Act means that no wrongful death action is available to the decedent's personal representative if the decedent himself would not have been able to bring an action at the time of his death. According to the defendant, this essential condition of the Act cannot be satisfied in this case because the decedent, during his lifetime, obtained a judgment on a personal injury action arising from the same conduct. The defendant concludes that the present wrongful death action must therefore be deemed barred.

The plaintiffs respond that the present action is not precluded because it is distinct from the personal injury action brought by the decedent during his lifetime. The plaintiffs observe that their wrongful death action seeks recovery for the loss incurred by them as a result of the decedent's death, while the decedent's prior personal injury action sought recovery for the injuries sustained by the decedent during his lifetime. In the alternative, the plaintiffs argue that, even if successive personal injury and wrongful death actions are prohibited under Illinois law, that rule does not control the present case because the judgment entered in the personal injury action was not final at the time of the decedent's death. We will consider these arguments separately.

The Wrongful Death Act provides the sole source of the plaintiffs' remedy ( Wilbon v. D.F. Bast Co. (1978), 73 Ill. 2d 58, 61, 22 Ill. Dec. 394, 382 N.E.2d 784; Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 612, 131 N.E.2d 525), and thus the question before us is one of statutory construction. Acting within constitutional limits, the legislature is free to prescribe whatever requirements it might choose to impose on the availability of relief under the Act. ( Hall v. Gillins (1958), 13 Ill. 2d 26, 29, 147 N.E.2d 352; Wilson v. Tromly (1949), 404 Ill. 307, 310, 89 N.E.2d 22.) We are mindful, of course, that the fundamental principle of statutory construction is to ascertain and give effect to the intention of the legislature. Croissant v. Joliet Park District (1990), 141 Ill. 2d 449, 455, 152 Ill. Dec. 561, 566 N.E.2d 248; Stewart v. Industrial Comm'n (1987), 115 Ill. 2d 337, 341, 105 Ill. Dec. 215, 504 N.E.2d 84.

Although this court has never been presented with the precise question raised here--whether a judgment obtained in a personal injury action will bar a later wrongful death action based on the same underlying conduct--our cases have consistently interpreted the Wrongful Death Act to require, as a condition for maintaining a wrongful death action, that the decedent have been able to bring, at the time of his death, an action for damages resulting from the occurrence. Thus, in a variety of contexts, our court has referred to the rule that a wrongful death action is barred if the decedent, at the time of death, would not have been able to pursue an action for personal injuries. (See, e.g., Nudd v. Matsoukas (1956), 7 Ill. 2d 608, 613, 131 N.E.2d 525; Howlett v. Doglio (1949), 402 Ill. 311, 319, 83 N.E.2d 708; Clarke v. Storchak (1943), 384 Ill. 564, 571-72, 52 N.E.2d 229; Biddy v. Blue Bird Air Service (1940), 374 Ill. 506, 513-14, 30 N.E.2d 14; Little v. Blue Goose Motor Coach Co. (1931), 346 Ill. 266, 271, 178 N.E. 496 (per curiam).) In this sense an action under the Wrongful Death Act may be said to be derivative of the ...


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