(Seymon Maslovsky, Defendant). Appeal from the Circuit Court of Lake County.
The opinion of the court was delivered by: Justice Thomas
Honorable Bernard E. Drew, Judge, Presiding.
This is a permissive interlocutory appeal (155 Ill. 2d R. 308) in a suit brought partly under the Nursing Home Care Act (Act)(210 ILCS 45/1- -101 et seq. (West 1996)). The question certified for review is whether an amendment to section 3--602 of the Act (210 ILCS 45/3--602 (West 1996)(Act)) applies to a cause of action that accrued before the amendment took effect on July 21, 1995. Formerly, section 3--602 (210 ILCS 45/3--602 (West 1994)) required a licensee to pay treble damages plus costs and attorney fees to a facility resident for the violation of the resident's rights under article II, part 1, of the Act (see 210 ILCS 45/2--101 et seq. (West 1994)). After the amendment, which took effect upon becoming law on July 21, 1995 (see Pub. Act 89--197, eff. July 21, 1995 (amending 210 ILCS 45/3--602 (West 1994)), recovery for violations of the Act is limited to actual damages, costs, and attorney fees. 210 ILCS 45/3--602 (West 1996).
We answer the certified question affirmatively. We hold that the amended section 3--602, abolishing triple damages for violations of the Act, applies to a pending suit no matter when the cause of action accrued. We decline to follow the contrary holdings of Hernandez v. Woodbridge Nursing Home, 287 Ill. App. 3d 641 (1st Dist. 1997) and Weimann v. Meadow Manor, Inc., 285 Ill. App. 3d 455 (5th Dist. 1996). Briefly, we conclude that, under First of America Trust Co. v. Armstead, 171 Ill. 2d 282 (1996), the application of the amended section 3--602 to this case is not truly retroactive because plaintiff had acquired no vested right to the punitive damages the former section 3--602 authorized. Therefore, the court must apply the current version of the statutory remedy.
The facts pertinent to this appeal are as follows. From December 12, 1994, through February 20, 1995, Jeanette White resided in Crown Manor Healthcare, a nursing home owned by defendant Sunrise Healthcare (Sunrise). She received treatment from Sunrise's agent, defendant Dr. Seymon Maslovsky. On April 4, 1996, Paul White (plaintiff), as Jeanette White's attorney-in-fact (see 755 ILCS 45/2--1 (West 1996)), sued on her behalf. As amended, the complaint alleged that defendants' negligent care of Jeanette White caused her various injuries and that Sunrise violated the Act, requiring treble damages under section 3--602.
Sunrise moved to strike the prayer for treble damages, arguing that the amended section 3--602 applied to this suit. Plaintiff responded that, under authority such as Rivard v. Chicago Fire Fighters Union, 122 Ill. 2d 303 (1988), amendments to statutes are presumed to be prospective and not to change the law governing an accrued cause of action. Sunrise replied that the presumption of prospectivity applies only to changes in the substantive law; as no party has a vested right in a particular procedure or remedy, courts normally give retroactive effect to changes in this type of statute. See Nelson v. Miller, 11 Ill. 2d 378, 382-83 (1957); Ogdon v. Gianakos, 415 Ill. 591, 597 (1953).
The trial court granted Sunrise's motion to strike and certified the question for an interlocutory appeal under Supreme Court Rule 308. We granted plaintiff's petition for leave to appeal. After Jeanette White died, plaintiff proceeded as the special administrator of her estate.
The application of new legislation to pending suits or preexisting causes of action is governed by our supreme court's opinion in Armstead. There, the court held that an amendment to the Gasoline Storage Act (430 ILCS 15/4(b)(1)(A)(West Supp. 1993)) governed the administrative review of the denial of the plaintiff's request to register its storage tank with the State Fire Marshal. While the administrative review action was pending in the circuit court, the legislature amended the statute by expressly prohibiting registering certain tanks, including those involved in the plaintiff's case.
The supreme court agreed with the appellate court that the amendment governed the case but not with the appellate court's assumptions that (1) the issue was whether to give the amendment "retroactive" effect; and (2) resolution of this question depended on whether the legislature intended such a "retroactivity." Noting that the law in this area was lengthy but inconsistent, the court divined two competing strands of precedent.
Under one line of cases, whether an amendment applied to an ongoing case depended on whether the legislature intended the amendment to have "prospective" effect; in turn, this determination of intent often hinged on whether the amendment was substantive or procedural. Substantive amendments enjoyed a presumption of prospectivity, but a change in procedures or remedies would be made "retroactive" if the legislature so intended. Armstead, 171 Ill. 2d at 287-88, citing Rivard, 122 Ill. 2d at 309-10.
Armstead observed that the "legislative intent" approach has been difficult to use because often there is no clear way to decide whether an amendment is "substantive" or "procedural." Armstead, 171 Ill. 2d at 288-89, citing Orlicki v. McCarthy, 4 Ill. 2d 342, 348 (1954), and Rivard, 122 Ill. 2d at 310. In part because of this difficulty, the Armstead court endorsed the alternative line of precedent, which used the "vested rights" approach. Under this method, reviewing courts must apply the law as it exists at the time of the appeal unless doing so would affect a vested right, i.e., an interest that constitutional due process protects from legislative interference. Armstead, 171 Ill. 2d at 289. Applying a new law to an existing controversy is not "retroactive" unless it impairs a vested right. Armstead, 171 Ill. 2d at 289-90.
Although the court in Armstead disapproved of the "legislative intent" approach because it involves elusive distinctions between procedure and substance, the court's adoption of the "vested rights" approach retained a vital role for the substance-procedure dichotomy. The court specified that interests or expectations created by prior law may fall short of being vested rights either "because they are not yet perfected," or "because the amendment is procedural in nature." (Emphasis added.) Armstead, 171 Ill. 2d 290. Thus, even after Armstead, whether an amendment is substantive or procedural may still dispose of whether it applies to a pre-existing cause of action--not because resolving that issue will disclose the legislature's intent but because it may determine whether the amendment actually affects vested rights.
(Parenthetically, we note that, after Armstead, the court decided People v. DiGirolamo, 179 Ill. 2d 24 (1997). There, the court refused to apply an amendment to the general venue provision for criminal cases (see 720 ILCS 5/1--6 (West 1992)) where the defendant was tried before the statute was amended. Without citing Armstead, the court relied on the "legislative intent" approach Armstead criticized. Also, the court departed from Armstead's semantic instruction that a statute is not "retroactive" unless it impairs vested rights. The DiGirolamo court explained that "[w]here the legislature intends a retroactive application of the amendment and the statutory amendment relates to changes in procedures or remedies, and not substantive rights, it applies retroactively to pending cases." DiGirolamo, 179 Ill. 2d at 50. The court held specifically that an amendment eliminating venue as an element of an offense did not "apply retroactively because it effected a change in substantive law" (DiGirolamo, 179 Ill. 2d at 50). DiGirolamo did not purport to overrule Armstead in any ...