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Judith Baez, Individually and As Special Administrator v. Garrett Rosenberg

May 9, 2011


Appeal from Circuit Court of Cook County No. 08 L 010215 Honorable Ronald S. Davis, Judge Presiding.

The opinion of the court was delivered by: Justice Lampkin

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

Presiding Justice Hall and Justice Rochford concurred in the judgment and opinion.


A settlement was reached in a wrongful death and survival suit brought by the deceased's estate against the other driver involved in the collision. The circuit court (1) distributed the settlement proceeds among the deceased's parents and minor child; (2) awarded funeral and burial expenses to reimburse expenditures made by the deceased's parents; (3) awarded attorney fees and costs to both the special administrator's and the child's attorneys; and (4) denied the motion filed on behalf of the child to substitute her mother as the special administrator instead of the deceased's mother. An appeal was filed on behalf of the child.

We hold that: (1) only the child of the deceased, not his parents, was his "next of kin" and entitled to the proceeds from the settlement of the wrongful death claim; (2) the parents were not entitled under the wrongful death claim to reimbursement for the funeral and burial expenses they advanced to the deceased's estate; (3) the attorney for the special administrator was not entitled to attorney fees and costs pursuant to a contract, the common fund doctrine, or equitable principles; and (4) the circuit court must review on remand the motion to substitute the special administrator.

Accordingly, we reverse the circuit court's awards to the deceased's parents of wrongful death settlement proceeds and funeral and burial expenses. We also reverse the circuit court's award of fees and costs to the special administrator's attorney. Further, we reverse and remand for review the court's denial of the motion to substitute the special administrator.


This dispute arose after the July 1, 2008 death of Rafael Marquez, who was involved in a collision with a car while he was riding his motorcycle. At the time of his death, Rafael was survived by his parents, Judith Baez and Mario Marquez, and a brother. In addition, Jesenia Laureano claimed that she was pregnant with Rafael's child. Baez retained Regina P. Etherton & Associates, LLC (Etherton), as counsel. Laureano retained Heller & Richmond, Ltd. (Richmond), as counsel.

On September 5, 2008, the insurance carrier for the car that struck Rafael offered the $100,000 policy limit to both counsel "to extinguish all claims." The insurance carrier needed court approval of the settlement with documentation that the court had addressed the claims presented by both attorneys and specific instructions as to how and to whom to issue the checks. Once that documentation was received, the insurance carrier would forward the appropriate releases.

On September 15, 2008, Baez filed a petition moving the court to appoint her as special administrator of Rafael's estate pursuant to the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2008)) and the Code of Civil Procedure (735 ILCS 5/2-1008 (West 2008)). The petition stated that Rafael's death created causes of action for his next of kin "for, inter alia, wrongful death and pecuniary losses under the Illinois Wrongful Death Act [citation]; for physical injury, pain, suffering and medical and other expenses under the Illinois Survival Act, 755 ILCS 5/27-6 (West 2008); and under other statutes and laws in such cases made and provided." The petition also stated that those causes of action were the only relevant assets of the estate and a petition for letters of office had not been filed for the estate. That same day, the circuit court appointed Baez as special administrator "for the purpose of prosecuting each individual cause of action for damages on the behalf of the Estate pursuant to the Illinois Wrongful Death Act [citation], the Illinois Survival Act [citation], and other statutes and laws in such cases made and provided." Also that same day, Baez filed a complaint for damages on behalf of Rafael's estate, asserting a wrongful death action (count I) and a survival action (count II).

On September 17, 2008, Baez filed a petition to distribute settlement funds pursuant to section 2 of the Wrongful Death Act (740 ILCS 180/2 (West 2008)). The petition asserted that the $100,000 settlement proceeds should be distributed to Rafael's mother, father and brother in proportions determined by the court. The petition stated that Laureano claimed to be carrying Rafael's unborn child, but Rafael's family challenged the paternity of that child and did not believe any money should be distributed to the child.

On November 23, 2008, Laureano gave birth to Destiny Marquez. In January 2009, Laureano filed a petition seeking DNA testing to determine whether Rafael was Destiny's father. The court ordered such testing, and a DNA test report dated February 13, 2009, indicated a 99.9995% probability that Baez and Mario Marquez were Destiny's biological grandparents. On May 12, 2009, the court noted that the parties agreed the test results indicated that Rafael was Destiny's biological parent.

The circuit court held an evidentiary hearing and then, on August 14, 2009, issued its decision on the petition to approve the settlement, determine the proper dependents, and distribute the settlement funds. Transcripts of those hearings were not included in the record on review. The circuit court found that the $100,000 settlement was fair, adjudged Rafael to be Destiny's father, and determined that Rafael's mother Baez, father Mario Marquez, and child Destiny were entitled to distributions. The court determined that Baez and Mario Marquez were dependent on Rafael for support, whereas Destiny was only partially dependent on him for support. The court awarded $13,713.26 to Baez and $13,713.26 to Mario Marquez. In addition, they should "receive $13,041 to reimburse for funeral expenses which they expended." The court also awarded Etherton $22,222 in attorney fees and $762.96 for expenses. Further, the court awarded Destiny $27,427.52. Finally, the court awarded Richmond $8,200 for attorney fees and $920 for costs.

Laureano filed a motion for reconsideration, which argued that: (1) the award to Rafael's parents was contrary to the Wrongful Death Act because they were not classified as his next of kin where he was survived by his child; (2) the funeral expenses paid by Rafael's parents were not recoverable under the Wrongful Death Act; (3) the award of attorney fees to Etherton was error; and (4) the allocation of attorney fees to Richmond was inequitable. Laureano also filed a motion to substitute administrators. Specifically, she asserted that special administrator Baez had a conflict of interest with Destiny, who was Rafael's sole beneficiary under the Wrongful Death Act, and Laureano should be appointed special administrator instead of Baez.

In response, Baez objected to Laureano's motion for reconsideration and motion to substitute administrators. Baez also moved the court to assess attorney fees against Laureano and Richmond.

The circuit court denied Baez's motion to assess attorney fees; denied Laureano's motion for reconsideration; and denied Laureano's motion to substitute administrators. A timely appeal was filed on behalf of the estate of Destiny Marquez, a minor, by her mother, petitioner Laureano.


A. Next of Kin

Petitioner Laureano challenges the award of settlement proceeds to Rafael's parents, arguing that her daughter Destiny is the sole beneficiary of Rafael's estate under the Wrongful Death Act. The meaning of a statute is an issue of law that we decide ...

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