BlogLine

Punitive damages are now permitted to be sought in Illinois wrongful death and survival actions

8/14/23

By: Jonathan Schwartz, Kingshuk K. Roy, and Donald Patrick Eckler

On August 11, 2023, Governor Pritzker signed HB 219, which amended 740 ILCS 180/1, 740 ILCS 180/2, and 755 ILCS 5/27-6, to allow punitive damages to be recoverable in wrongful death and survival actions. The amendments to the Wrongful Death Act, 740 ILCS 180/1 and 740 ILCS 180/2, apply to cases filed on or after the effective date of the statute of August 11, 2023, but the amendment to the Survival Act, 755 ILCS 5/27-6, applies immediately. This suggests that punitive damages can be sought in existing cases with claims under the Survival Act. 

Putting aside the wisdom of these amendments, they will have the immediate impact of driving up the value of tort claims, including, but not limited to, premises liability, transportation, and products liability claims. Notably, the statute makes clear that punitive damages cannot be sought against doctors and lawyers and against public entities, reaffirming the protections in 735 ILCS 5/2-1115, 745 ILCS 10/2-102, and 745 ILCS 10/2-213. 

The statute also does not disturb the requirements of 735 ILCS 5/2-604.1, which prohibits punitive damages from being initially claimed in a complaint. Under Illinois law, the plaintiff wanting to recover punitive damages must first, upon motion, seek leave of court at a hearing to plead such a claim – then, such claim will be allowed only “if the plaintiff establishes at such hearing a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages.” The motion seeking to plead punitive damages must be filed no later than 30 days after the close of discovery. 

In addition to raising the risk attendant to wrongful death and survival claims, this will also complicate coverage disputes with respect to the insurability of punitive damages. As a general rule, punitive damages are not insurable under Illinois law. Bernier v. Burris, 113 Ill.2d 219, 246 (1986), citing Beaver v. County Mutual Ins. Co.¸95 Ill. App. 3d 1222. 1124-26 (5th Dist. 1981) (“[w]e think the better view, and one which consists with the function and nature of punitive damages in Illinois, is that which prohibits insurance under such circumstances.”) However, the law is less clear in the context of vicarious liability, and thus, insurers should review their exclusions for punitive damages and tighten up those exclusions as needed. 

Finally, defendants subject to punitive damages based upon this new statute should preserve their right to challenge its constitutionality for violation of the three-readings rule of the Illinois Constitution, Art. IV, Section 8(d). On May 16, 2023, and after having gone through two readings in the House on January 12, 2023 and March 16, 2023, HB 219, which was a bill to amend the Uniform Interstate Depositions and Discovery Act, by making a technical change (a shell bill), was gutted and replaced with the bill to amend the Wrongful Death Act to allow punitive damages. HB 219 was then moved out of the House and to the Senate that same day, after having been amended two more times that day in the House, and was ultimately passed by the Senate after three readings in that chamber on May 18, 2023. Though not as egregious as some violations of the rule, this issue should be preserved given that certain Illinois courts, including two justices of the Illinois Supreme Court in Caulkins v. Prtizker, 2023 IL 129453, have become increasingly vocal about the problems with the enrolled bill doctrine and the failure of the General Assembly to adhere to the constitutional requirements for passage of legislation. 

For more information, please contact Jonathan Schwartz (Jonathan.Schwartz@fmglaw.com), Kingshuk K. Roy (kingshuk.roy@fmglaw.com), Donald Patrick Eckler (patrick.eckler@fmglaw.com), or your local FMG attorney.