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Messmore v. Silvis Operations, LLC

Court of Appeals of Illinois, Third District

April 26, 2018

MERTON MESSMORE, as Personal Representative of the Estate of Mary Messmore, Deceased, Plaintiff-Appellee,
v.
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.

          Appeal 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.

          OPINION

          SCHMIDT, JUSTICE

         ¶ 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.

         ¶ 3 BACKGROUND

         ¶ 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 *** ...


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