MERTON MESSMORE, as Personal Representative of the Estate of Mary Messmore, Deceased, Plaintiff-Appellee,
SILVIS OPERATIONS, LLC, a Foreign Limited Liability Company, d/b/a Lighthouse at Silvis, d/b/a Lighthouse of Silvis, Illinois, and CYNTHIA McCOY, Individually, Defendants-Appellants.
from the Circuit Court of the 14th Judicial Circuit, Rock
Island County, Illinois. Circuit No. 15-L-150 Honorable
Kathleen Mesich, Judge, Presiding.
JUSTICE SCHMIDT delivered the judgment of the court, with
opinion. Presiding Justice Carter and Justice Holdridge
concurred in the judgment and opinion.
1 As personal representative of his wife's estate,
plaintiff, Merton Messmore, brought survival claims against
defendants, Silvis Operations, LLC (Silvis), and Cynthia
McCoy. Silvis owns and operates Lighthouse of Silvis,
Illinois (Lighthouse), an assisted living facility where
McCoy works as a nurse. In a previous appeal, a panel of this
court recognized Silvis's contractual right to compel
arbitration of plaintiff's survival claims. Messmore
v. Silvis Operations, LLC, 2017 IL App (3d) 160740-U.
2 Plaintiff later filed an amended complaint that added a
wrongful death claim against Silvis. The trial court denied
Silvis's motion to stay the wrongful death proceedings
pending arbitration of plaintiff's survival claims.
Silvis now appeals pursuant to Illinois Supreme Court Rule
307(a)(1) (eff. Nov. 1, 2016). We reverse the trial
court's judgment in part and remand for further
proceedings consistent with this opinion.
4 Plaintiff filed his initial complaint on November 30, 2015.
The complaint alleged that the decedent, Mary Messmore, moved
into Lighthouse on November 5, 2014. Lighthouse employees
noted that Mary suffered from "left-sided paralysis due
to a recent stroke, degenerative joint disease, atrial
fibrillation, hypertension, and was a fall risk." Mary
sustained two falls during her residency. After Mary's
second fall on December 1 or 2, 2014, Lighthouse employees
found her with a "goose egg sized" hematoma on the
left side of her forehead, facial bruising, and an abrasion
on her left knee.
5 Lighthouse admitted Mary to Trinity Hospital on December 3.
Doctors diagnosed her with a subdural hematoma and facial
bruising. Trinity discharged her back to Lighthouse on
December 5. Lighthouse discharged Mary on December 13. She
died on January 8, 2015.
6 Both counts in the complaint alleged survival claims under
the Probate Act of 1975 (Probate Act) (755 ILCS 5/27-6 (West
2014)). Plaintiff claimed that defendants provided negligent
care and negligently supervised Mary. Their negligence
"directly and proximately caused" Mary's
injuries "and resulted in Mary experiencing injuries,
pain, and suffering."
7 In May 2016, defendants moved to dismiss plaintiff's
complaint. Defendants' motion sought to compel mandatory
mediation and, if necessary, arbitration of plaintiff's
survival claims pursuant to Lighthouse's resident
agreement. On August 1, the trial court granted
defendants' motion; the court denied plaintiff's
motion to reconsider on November 2.
8 On November 14, plaintiff filed an amended complaint that
added a wrongful death claim against Silvis. The amended
complaint explicitly alleged "facts common to all
counts" to support all three causes of action. The
"facts common to all counts" substantially restated
the facts alleged in plaintiff's initial complaint. The
wrongful death claim adopted the survival claims'
negligence allegations but alleged defendants' negligence
proximately caused Mary's death (rather than her
injuries) and caused her "lineal next of kin"
(rather than Mary) to suffer "a loss of companionship
and society, grief, sorrow, and mental suffering."
9 On December 2, plaintiff filed an interlocutory appeal that
challenged the trial court's order dismissing the
survival claims and compelling arbitration. A panel of this
court, with one judge dissenting, affirmed the order.
Messmore v. Silvis Operations, LLC, 2017 IL App (3d)
160740-U. Plaintiff filed a petition for leave to appeal to
the supreme court.
10 While plaintiff's petition remained pending, he
pursued discovery in the wrongful death case. Plaintiff's
counsel served Silvis with notice of plaintiff's
videotaped evidence deposition. When counsel sent the notice,
the parties had not scheduled the arbitration date. Plaintiff
is over 90 years old; counsel sought to secure
plaintiff's testimony in case he became ill or died
before the case concluded. Silvis ignored plaintiff's
discovery requests and objected to taking his evidence
deposition before the arbitration. On September 15, 2017,
defendants filed a motion to stay the wrongful death
proceedings pending resolution of the survival claims'
arbitration. The court denied defendants' motion:
"The Court does recognize all three claims are identical
as laid out *** ...