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New Illinois Law will Amend the Wrongful Death Act to Allow Punitive Damages
Colter Kennedy, Attorney at Gunty & McCarthy
Office: 312-541-0022; Cell: 314-384-6603; [email protected]
Defendants of wrongful death actions in Illinois were protected from punitive damages by the Illinois Wrongful Death Act. See 740 ILCS 180/1. Because the Act does not expressly provide for punitive damages, Illinois appellate courts have long held that “actions for punitive damages will not survive the death of the original plaintiff unless the legislature specifically authorizes such an action or there are strong equitable reasons for allowing the recovery of punitive damages.” Marston v. Walgreen Co., 389 Ill. App. 3d 337, 346 (2009).
Attempts by the Illinois Legislature to amend the Wrongful Death Act have failed—until now. On May 18, 2023, the Illinois Legislature passed House Bill 219 and Governor J.B. Pritzker signed it into law on August 11, 2023. This new law will amend the Wrongful Death Act to allow a deceased plaintiff’s surviving kin to recover punitive damages:
Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages including punitive damages when applicable, in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, including punitive damages when applicable, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.
(new language of House Bill 219 underlined). The amended language goes on to include some exceptions to the recovery of punitive damages, in that they are still not recoverable in wrongful death cases for legal or medical malpractice, nor “in an action against the State or unit of local government or an employee of a unit of local government in his or her official capacity.”
Many Illinois business and insurance groups expressed opposition to House Bill 219 without success. Now, with the Governor’s signature making the bill into law, these changes to the Wrongful Death Act go into effect immediately.
This amendment will make Illinois the 35th state to allow the recovery of punitive damages in wrongful death actions. Many of those other 34 states’ legislatures have also enacted statutes to definitively cap the recovery of such punitive damages by a maximum dollar amount, or a maximum ratio amount that a jury may award in punitive damages in proportion to that of the amount awarded in compensatory damages. For example, North Carolina caps punitive damages at three times compensatory damages (3 to 1 ratio) or $250,000, whichever is greater. See N.C. Gen. Stat. Ann. § 1D-25.
Illinois, however, has no statutory punitive damages cap, and the Legislature is not expected to enact one. This is primarily because the Illinois Supreme Court has long held that
a statutory cap for punitive damages is unconstitutional under the separation of powers outlined in the Illinois Constitution. See Best v. Taylor Mach. Works, 179 Ill. 2d 367, 409-16 (1997). Therefore, nothing short of an amendment to the Illinois Constitution would allow for the establishment of a definitive cap on punitive damages.
This leaves only a soft cap on the recovery of punitive damages in those instances where the amount of the punitive damages awarded to a plaintiff as “excessive” or “unreasonable” under the Due Process Clause of the Fourteenth Amendments to the U.S. Constitution. See BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996); State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003) (declining to institute a bright-line rule on what punitive damages may qualify as “excessive” or “unreasonable,” but acknowledging that anything under a 10 to 1 ratio is likely permissible).
Rather than purely examining the ratio of punitive damages to compensatory damages in the determination of excess awards, Illinois courts consider the “three guideposts” put forward by the United States Supreme Court in the BMW case to examine the excessiveness of any award for punitive damages. Doe v. Parrillo, 452 Ill. Dec. 512, 525 (2021). These “guideposts” examine: “(1) ‘the degree of reprehensibility’ of the defendant’s conduct, (2) ‘the disparity between the harm or potential harm’ suffered by the plaintiff and the amount of punitive damages, and (3) ‘the differences between this remedy [of punitive damages] and the civil penalties authorized or imposed in comparable cases.’” Id. (quoting BMW, 517 U.S. at 574-75 (1996)).
This approach by Illinois court is obviously less definitive and makes the prediction of the potential punitive damages that a defendant may incur in a case much more difficult. Compare International Union of Operating Engineers, Local 150 v. Lowe Excavating Co., 225 Ill. 2d 456 (2006) (reducing a trial court award of punitive damages from 112 to 1 down to 11 to 1 in a tortious interference case) with Baumrucker v. Express Cab Dispatch, Inc., 416 Ill. Dec. 500 (1st Dist. 2017) (sustaining a trial court award of punitive damages at 19 to 1 where an unlicensed cab driver injured a pedestrian).
By their very nature, wrongful death cases are often dramatic and evoke emotion that may lead a jury to believe that the defendant’s conduct qualifies for punitive damages. When a defendant is faced with a wrongful death action, their counsel should understand the potential for punitive damages. Their counsel should anticipate how the facts of the case may be construed by the plaintiff’s counsel to argue for punitive damages and know how to negate or minimize such arguments through the litigation of a case to trial, and if necessary, appeal.
For all your questions or concerns about punitive damages claims in wrongful death actions, or any other legal issues, please contact us.