Punitive Damages Amendment Seeks To Provide Statutory Authority Altering The Landscape Of Wrongful Death Recovery

• Published date: 08 June 2023
• Subject Matter: Litigation, Mediation & Arbitration, Transport, Rail, Road & Cycling, Trials & Appeals & Compensation
• Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP
• Author: Mr Justin Dobek and Lara Lickhalter

Change may be coming to Illinois under House Bill 219, a bill that will drastically expand the landscape of recoverable damages under the Wrongful Death Act. For nearly 50 years, the Illinois Supreme Court has held that punitive damages are not recoverable under the Wrongful Death Act absent a legislative amendment permitting their recovery. HB 219 is that amendment.

Background

Currently in fast-track posture, HB 219 was introduced on January 12, 2023, in the 103rd General Assembly of the Illinois House of Representatives by Rep. Emanuel Welch to amend the Wrongful Death Act, 740 ILCS 180/1. The proposed amendment permits the recovery of punitive damages in civil actions brought by personal representatives of the decedent to recover where the general criteria for punitive damages have been met, in addition to recovery for grief, sorrow, and mental suffering currently available.

The bill also carves out exceptions for (1) state or local governments, (2) medical malpractice actions, and (3) legal malpractice actions. There was little movement on the bill after its introduction until May 11, 2023, when Rep. Jay Hoffman became its chief sponsor. In the week that followed, the bill added 16 co-sponsors in the House and 12 co-sponsors in the Senate and passed both chambers on May 18, 2023. The legislation now resides with Gov. J.B. Pritzker for approval. If signed into law, the amendment will apply to wrongful death actions filed on or after its effective date.

Illinois is currently one of 16 states prohibiting the recovery of punitive damages in wrongful death cases. With the fate of this limitation hanging in the balance, businesses and individuals alike have weighed in on the far-reaching consequences of HB 219. For example, the transportation industry, which traverses approximately 2,250 miles of interstate highways in Illinois daily, is one of the most vocal opponents to the bill. And for good reason. The amendment has the potential to turn every motor vehicle collision fatality into a shock verdict.

What is certain, the proposed amendment would transform the application of punitive damages by courts under the Wrongful Death Act, which has largely remained undisturbed for 50 years.

Illinois Supreme Court Has Firmly Prohibited Punitive Recovery under the Wrongful Death Act Absent Legislative Authority

For decades, the Illinois Supreme Court has resisted the push by the plaintiffs' bar for punitive damages in wrongful death and survival actions. In Froud v...