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Miller v. Penrod

December 07, 2001

JOYCE MILLER, AS ADM'R OF THE ESTATE OF ROBERTA TERRELL, PLAINTIFF-APPELLANT,
v.
LARRY PENROD, GREG ROBERSON, KINGSWAY EAST, INC., AND COLE MINE TAVERN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court for the 10th Judicial Circuit, Tazewell County, Illinois No. 98-L-71 Honorable Scott Shore Judge, Presiding

The opinion of the court was delivered by: Justice Breslin

Released for publication January 31, 2002.

JOYCE MILLER, AS ADM'R OF THE ESTATE OF ROBERTA TERRELL, PLAINTIFF-APPELLANT,
v.
LARRY PENROD, GREG ROBERSON, KINGSWAY EAST, INC., AND COLE MINE TAVERN, DEFENDANTS-APPELLEES.

Appeal from the Circuit Court for the 10th Judicial Circuit, Tazewell County, Illinois No. 98-L-71 Honorable Scott Shore Judge, Presiding

The opinion of the court was delivered by: Justice Breslin

PUBLISHED

 The administrator of the estate of Roberta Terrell (estate) filed this wrongful death action against defendants Larry Penrod, Greg Roberson, Kingsway East, Inc. (Kingsway), and Cole Mine Tavern. In its complaint, the estate asserted a claim for loss of society under section 6-21 of the Liquor Control Act of 1934 (Act) (235 ILCS 5/6-21 (West 2000)). The trial court dismissed the estate's claim, concluding that the Act did not provide a cause of action for loss of society at the time of Terrell's death. We reverse and hold that section 6-21 of the Liquor Control Act provides a cause of action for loss of society for injuries sustained after the effective date of the Act and prior to the installation of the cap on damages on July 1, 1998.

FACTS

On April 26, 1998, Terrell was a passenger in a vehicle driven by Penrod but owned by Roberson. Penrod, who had become intoxicated at Kingsway, lost control of the vehicle and drove the wrong way on Interstate 74 in Tazewell County, Illinois. The vehicle crashed into the wall of a bridge, flipped over the bridge, and fell to the street below, killing Terrell instantly. At the time of her death, Terrell was survived by one adult and two minor children, all of whom lived with her.

The estate filed an action for wrongful death against Penrod, Roberson, Kingsway, and Cole Mine Tavern. Its complaint alleged that Terrell's death was caused by the negligence of Penrod and Roberson and that Kingsway and Cole Mine Tavern violated the Act by selling the liquor to Penrod that caused his intoxication. Eventually, the action was settled as to Penrod and Roberson. Because the parties stipulated at a bench trial that Cole Mine Tavern was not the cause of Penrod's intoxication, it was dismissed with prejudice. Kingsway remained as the only defendant.

As to Kingsway, the trial court concluded that the estate could not bring its loss of society claim against it because the Liquor Control Act did not provide that cause of action for injuries sustained prior to July 1, 1998. As a result, the court awarded the estate $5,198.00 for Terrell's funeral and burial expenses. On March 9, 2001, the estate filed its notice of appeal. Three days later, Kingsway filed a posttrial motion, requesting that the court set off all of the damages because the settlement with Penrod included damages for Terrell's funeral and burial expenses. The trial court granted Kingsway's motion, reducing its award to zero.

ANALYSIS

The issue on appeal is whether the court erred in determining that the Liquor Control Act bars the estate's loss of society claim against Kingsway. This court reviews questions of statutory construction de novo. Babbitt v. United Parcel Service, Inc., 212 Ill. App. 3d 204, 571 N.E.2d 506 (1991).

Before addressing the substance of this issue, however, we first must consider Kingsway's claim that this court lacks jurisdiction over this appeal. Kingsway asserts that under Supreme Court Rule 302(a)(2) (155 Ill. 2d R. 303(a)(2)), its filing of a posttrial motion after the ...


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