The opinion of the court was delivered by: Justice Buckley
Appeal from the Circuit Court of Cook County.
Hon. Robert P. Bastone, and Hon. James W. Kennedy, Judges Presiding.
This is a consolidated appeal from an order entered by the law division of the circuit court of Cook County and from an order entered by the probate division of the circuit court of Cook County. Plaintiff, Mary Morris, as administrator of the estate of Georgia Holland, deceased (decedent), brought an action in the circuit court of Cook County, law division, to recover damages for the personal injury and wrongful death of decedent. The case ultimately settled. The law division found that Charna Ervin (petitioner), one of decedent's adult grandchildren, was entitled to a share of the personal injury proceeds but was not entitled to a share of the wrongful death proceeds. Petitioner now appeals and raises the following issues: (1) whether the law division court erred when it included decedent's seven siblings with decedent's two grandchildren as "next of kin" and beneficiaries under the Illinois Wrongful Death Act (740 ILCS Ann. 180/2 (West Supp. 1998)(the Act)); (2) whether the law division court erred in its findings relative to the percentage of dependency of each wrongful death beneficiary upon decedent; (3) whether the law division erred in its adjudication of Medicare's lien; and (4) whether the probate court's order was proper.
This dispute arises out of the death of decedent at a nursing home. Plaintiff, Mary Morris, as administrator of decedent's estate, brought an action in the circuit court of Cook County, law division to recover damages for the personal injury and wrongful death of decedent. Defendant McDonald Medicar, Inc. offered the sum of $10,000 in settlement. Defendant William L. Dawson Nursing Center, Inc., offered the sum of $300,000 in settlement. The United States Attorney was granted leave to file a special and limited appearance on behalf of Medicare making a claim of $48,370.81. Plaintiff filed a motion for approval of proposed settlement, adjudication of liens, determination of next of kin and dependency of each, and dismissal of the case.
On August 12, 1997, the trial court approved the proposed settlement, adjudicated Medicare's lien, and apportioned 60% of the total proceeds as settlement of the personal injury action and the remaining 40% as settlement of the wrongful death action. The trial court found the personal injury settlement proceeds distributable to decedent's heirs, her two adult grandchildren, namely, petitioner and Joe Louis Ervin, after reduction by Medicare's lien. For purposes of the distribution of the wrongful death proceeds, the trial court determined the decedent's next of kin and dependency of each pursuant to the Act as follows: Joe Louis Ervin (adult grandson) - 0%; Charna Ervin, petitioner (adult granddaughter) - 0%; Mary Morris (adult sibling) - 40%; Audrey McMillan (adult sibling) - 20%; Edna Ruth Kelley (adult sibling) - 20%; Clarence Jones (adult sibling) - 5%; Louis Jones (adult sibling) - 5%; Barbara Jean Coleman (adult sibling) - 5%; and Bonnie Jean Dickerson (adult sibling) - 5%. Decedent left no surviving spouse and was predeceased by her only child, petitioner's father.
On August 21, 1997, the probate division entered an order authorizing plaintiff to accept $310,000 as settlement of the law division case, authorizing plaintiff to make distributions consistent with the law division's order of August 12, 1997, and fixing and approving plaintiff's bond in the amount of $465,000.
On August 29, 1997, petitioner filed a separate notice of appeal from both the law division order of August 12, 1997, and the probate division order of August 21, 1997. The appeals were consolidated by order of this court.
The first issue before this court is whether siblings of a decedent can recover under the Act when decedent is survived by grandchildren.
Petitioner asserts that the plain language of the Act and the long-standing definition of "next of kin" support her argument that, under the facts of this case, decedent's two grandchildren are "next of kin" to the exclusion of decedent's seven surviving siblings, and, therefore, decedent's siblings are not beneficiaries of the wrongful death proceeds. Specifically, petitioner asserts that a determination of a decedent's "next of kin" requires reference to the Illinois rules of descent and distribution as set forth in section 2-1 of the Probate Act of 1975 (the Probate Act). 755 ILCS 5/2-1(West 1992). In the instant case, decedent left no surviving spouse; therefore, the applicable section of the Probate Act is section 2-1(b) which provides that "[i]f there is no surviving spouse but a descendant of the decedent: the entire estate to the decedent's descendants per stirpes." 755 ILCS 5/2-1(b) (West 1992). Accordingly, under petitioner's argument, the grandchildren, not the siblings, would be decedent's "next of kin."
The Act sets forth who may bring an action for wrongful death and for whose benefit the action may be brought. The Act provides in pertinent part as follows:
"Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next ...