The following Cogan’s Corner column appeared in the Dec. 3, 2012 edition of the Chicago Daily Law Bulletin.
In contrast to the Wrongful Death Act, the Survival Act does not create a cause of action.
From time to time over the course of my career, I have tried to reconcile the plain language of the Illinois Wrongful Death Act, which allows the appointment of special administrators with and the lack of such a provision in the Survival Act. It took these last three decades to bring this issue to the fore. Yet, based on recent decisions and articles published on this topic, it appears that the fog has not entirely lifted on this procedural quagmire.
Many personal-injury lawyers routinely file complaints alleging claims under the Wrongful Death Act, 740 ILCS 180/1 et seq. and additional claims on behalf of the decedent authorized by the Survival Act, 755 ILCS 5/27-6. Employing the Wrongful Death Act, the named plaintiff is the special administrator of the decedent’s estate who is formally appointed by routine motion of the surviving spouse of next of kin, filed and granted on the same day as the complaint. Although largely unchallenged, this practice is not technically authorized by Illinois law. To decipher this puzzle, we should engage in a little “Torts 101.”
The Wrongful Death Act, allows actions to be brought in the name of the decedents by a representative, but for the exclusive benefit of the surviving spouse and next of kin. As such, wrongful death damages are the resulting pecuniary injuries to the surviving spouse and next of kin that encompass loss of society, including grief, sorrow and mental suffering and any monetary support.
Actions that survive the death of a party as permitted by the Survival Act are for injuries suffered by the decedent between the time of injury and death. Thus, the damages claimed may include pain and suffering and medical expenses incurred by the decedent. These damages accrue to the estate of the decedent—not directly to the surviving spouse and next of kin as the Wrongful Death Act provides. While it is true that any award of damages from the claims that survived will likely go to the surviving spouse and next of kin through the distribution of the estate, this is not always the case, particularly when the decedent has left a will.
In contracts to the Wrongful Death Act, the Survival Act does not create a cause of action. Rather, it is a conduct for the decedent’s estate representative to maintain those statutory or common-law actions that have already accrued to the decedent prior to death. So when the term, “Survival Act claim” is used it is somewhat of a misnomer and potentially compounds the confusion surrounding the proper representative party. Some may even confuse the concept of “survival,” attributing it to the fact that the decedent survived for some time after the injury rather than a claim for personal injury that survives the death of the injured party.
Because these claims have two different beneficiaries, the special administrator appointed as executor or administrator of the decedent’s estate under the Probate Act, 755 ILCS 5/9-4, who may be empowered to serve as plaintiff for all claims, including wrongful death.
Recent cases decided by the 1st District Appellate Court, Cushing v. Greyhoud, 965 N.E.2d 1215 (2012) and Baez v Rosenberg, 409 Ill. Pp. 3d 525 (2011) recognizing this rule have brought the special administrator quandary center stage. Defense attorneys are properly using these cases to fuel motions to dismiss when wrongful death claims brought by a special administrator are accompanied by causes of action under the Survival Act.
Notably, the U.S. District Court addressed this issue head-on in Burris v. Cullinan. No. 09-3116, 2009 Lexis 98875…
If you have been injured in a personal injury or medical malpractice accident, do not hesitate to contact the Chicago accident and injury law firm of Cogan & Power at (312) 477-2500 to schedule a free case consultation, so that we can help you begin the process of recovery as soon as possible. If you cannot come to our offices in downtown Chicago, we will come to you. And because we take cases on a contingency basis, you will not pay any fee unless we get you compensation.