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Pietrzyk v. Oak Lawn Pavilion

April 26, 2002

ERYKA PIETRZYK AS EX'X OF THE ESTATE OF ANTHONY F. PIETRZYK A/K/A ANTONI PIETRZYK, DECEASED, PLAINTIFF-APPELLANT,
v.
OAK LAWN PAVILION, INC.; ANASTASIA LARGOSA; KOVILPARAMBIL ANTHONY; AND JOANNE HARLIN, DEFENDANTS (OAK LAWN PAVILION, INC., DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Cook County. No. 99 L 12419 Honorable Michael J. Kelly, Judge Presiding.

The opinion of the court was delivered by: Justice Greiman

UNPUBLISHED

This appeal arises from the trial court's order granting in part and rejecting in part plaintiff Eryka Pietrzyk's postjudgment motion, pursuant to section 3-602 of the Nursing Home Care Act (210 ILCS 45/3-602 (West 2000)), for attorney fees. For the reasons that follow, we affirm.

On October 28, 1996, the plaintiff, as executrix of the estate of Antoni Pietrzyk, filed a multicount claim against defendants Oak Lawn Pavilion, Inc. (Oak Lawn), Joanne Harlin, Kovilparambil Anthony, M.D., and Anastasia Largosa, M.D. Plaintiff engaged her attorneys pursuant to a one-third contingency fee arrangement. Count I of plaintiff's amended complaint sought recovery from Oak Lawn for a statutory violation of the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 1996)) for three months of disability, medical expenses, and pain and suffering her husband endured after Oak Lawn's alleged neglect. *fn1 Pursuant to section 3-602 of the Nursing Home Care Act, Pietrzyk also sought attorney fees and costs. Count II of the amended complaint sought recovery against Oak Lawn for common law negligence. Count III was a wrongful death action, pursuant to the Wrongful Death Act (740 ILCS 180/1 (West 1996)) that also sought recovery against Oak Lawn. That claim, however, was predicated upon common law negligence and was not covered by the Nursing Home Care Act. Pietrzyk did not seek attorney fees and costs in either count II or III. The remaining counts were directed against the other defendants.

On January 11, 2000, the trial court granted Dr. Anthony's motion for summary judgment. Before trial, Pietrzyk voluntarily dismissed Dr. Largosa and settled with Harlin for $50,000. Plaintiff then opted to pursue recovery on counts I and III of her amended complaint against only Oak Lawn (hereinafter defendant).

Because defendant admitted its liability, the only factual issue to be decided by the jury was the amount of money to be awarded to the plaintiff for the proven recoverable compensatory damages. On October 26, 2000, the jury returned the following itemized verdict:

"Past Medical Expenses: $26,530.55

General Expenses: $10,254.33

Disability: $100,000.00

Pain and Suffering: $175,000.00

Loss of Society to Eryka Pietrzyk:$287,000.00

Loss of Society to Dianne Bender: $50,000.00

Loss of Society to Alice Brackman: $50,000.00

Total: $698,784.85"

On November 21, 2000, Pietrzyk filed a motion to recover attorney fees, pursuant to section 3-602 of the Nursing Home Care Act, in the amount of $232,928.29 -or one-third of the total verdict- as determined by her contingency fee agreement. Defendant filed a response in opposition to Pietrzyk's motion and argued that she was entitled to attorney fees only in the amount of one-third of the damages attributable to the claim brought under the Nursing Home Care Act. For that argument, defendant noted that Wills v. De ...


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