The cost of defending cases in Illinois continues to rise. Earlier this month, the Illinois Wrongful Death Act (740 ILCS 180/1, 740 ILCS 180/2) and Survival Act (755 ILCS 5/27-6) were amended to allow the recovery of punitive damages in actions for wrongful death and survival.
The amendments do not affect the applicability of Section 2-1115 of the Illinois Code of Civil Procedure or Sections 2-102 or 2-213 of the Local Governmental and Governmental Employees Tort Immunity Act. Punitive damages are still not recoverable in healing art or legal malpractice actions nor are they available against the State or units of local government or their employees. The amendments to the Wrongful Death Act apply to all actions filed after its effective date (August 11, 2023) while amendments to the Survival Act take effect immediately.
The requirements of 735 ILCS 5/2-604.1, which prohibits punitive damages from being initially claimed in a complaint remain in place. Under Illinois law, a plaintiff seeking punitive damages must file a motion seeking such relief. The motion must be filed no later than 30 days after the close of discovery.
This Act potentially complicates coverage for defendants found liable for punitive damages. As a general rule, punitive damages are not insurable under Illinois law. Additionally, insurers may seek to avoid coverage due to willful/intentional act exclusions. What steps can defendants take to address this development? First, in pending survival actions, gather the deposition testimony and other evidence you will need to defeat any motion to amend the complaint to add a punitive damages count. Second, advise your clients of the amendment and the impact it may have on your pending case. This includes the Act’s impact on the potential adverse jury verdict as well as whether the damages will be covered by your client’s liability insurance policy. Third, when pending, you will have to consider filing affirmative defenses, challenging the Act on constitutional grounds, including but not limited to whether the Act was passed consistent with constitutional legislative requirements (the three readings rule), special legislation, equal protection, or other grounds. Finally, you should consider asking the court to bifurcate the trial so that punitive damages are considered separately.
Practitioners should be aware of two emerging issues regarding the 2023 Amendments: retroactive application, and Constitutionality.
Pursuant to Illinois’ retroactivity analysis, substantive amendments (unless expressly stated to be applied retroactively) are to be applied prospectively only. See Section 4 of the Statute on Statutes (“No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture or punishment incurred, or any right accrued , or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. If any penalty, forfeiture or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. This section shall extend to all repeals, either by express words or by implication, whether the repeal is in the act making any new provision upon the same subject or in any other act”).
The Illinois Supreme Court clarified Illinois’ retroactivity jurisprudence in Perry v. Department of Financial & Professional Regulation, 2018 IL 122349, ¶¶ 38-41. The Perry court clarified that a substantive change in law redefines “the rights, duties, and obligations of persons to one another as to their conduct or property and that determines when a cause of action for damages or other relief has arisen.” Id. at ¶ 69 (citing Webster’s Third New International dictionary 2280 (2002)); see also People v. Stefanski, 2019 IL App (3d) ¶ 14 (“In essence, the Perry court concluded that procedural laws are laws that establish the ways in which rights or duties are judicially enforced, while substantive laws are laws that create and define those rights and duties”).
Applying these definitions to the Probate Act Amendments, the creation of a new right to pursue punitive damages against a defendant is likely a substantive change in the law. Not only does the Amendment create a new right for a decedent’s survivors to pursue, it subjects defendants to a new liability that did not exist before August 8, 2023. Perry makes clear that new liabilities are substantive changes to the law.
Second, where “the legislature has clearly indicated the temporal reach, then such temporal reach must be given effect unless to do so would be constitutionally prohibited.” Perry, 2018 IL 122349, ¶ 40. Retroactive application would likely be unconstitutional under both the Ex Post Facto and Due Process clauses of the United States Constitution.
In Landgraf v. USI Film Products, 511 U.S. 244 (1994), addressing the portion of Civil Rights Act that authorizes punitive damages, the United States Supreme Court held that because these “punitive” damages in civil cases “share key characteristics of criminal sanctions,” “[r]etroactive imposition of punitive damages would raise a serious constitutional question.” 511 U.S. at 281. The Court explained that the Ex Post Facto Clause, Article I, § 10, cl. 1, “flatly prohibits retroactive application of penal legislation.” Id. at 266; see also Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17 (1976) (Court would “hesitate to approve the retrospective imposition of liability on any theory of deterrence ... or blameworthiness”); De Veau v. Braisted, 363 U.S. 144, 160 (1960) (“The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts”). The Illinois Supreme Court has emphasized that “[b]ecause of their penal nature, punitive damages are not favored in the law, and courts must be cautious in seeing that they are not improperly or unwisely awarded.” In re Estate of Wernick, 127 Ill. 2d 61, 83 (1989).
Moreover, the Amendments to 740 ILCS 180/1, 740 ILCS 180/2, and 755 ILCS 5/27-6, have not likely met the three-readings requirement. Friends of the Parks v. Chicago Park Dist., 203 Ill. 2d 312, 328-329 (2003). The Illinois Constitution requires that a bill “shall be read by title on three different days in each house[]” and that “[a] bill and each amendment thereto shall be reproduced and placed on the desk of each member before final passage.” See Ill. Const. 1970, art. IV §§ 8(d). It is also required that “the Speaker of the House of Representatives and the President of the Senate shall sign each bill that passes both houses to certify that the procedural requirements for passage have been met.” Id. Effectively, House Bill 219 was only read once in the House. The first two readings in the House were readings of a completely different version of House Bill 219, one that sought to amend the Uniform Interstate Depositions and Discovery Act and said nothing of the Wrongful Death Act or Survival Act or punitive damages. The first two readings in the House were readings of a version of House Bill 219, seeking to amend an entirely different statute.
Despite the express language of the Illinois Constitution, the Illinois Supreme Court has recognized the “enrolled bill” doctrine as an exception to the three-reading requirement. Under this judicially-created doctrine, if the President of the Senate and the Speaker of the House certify that constitutional procedures were complied with, the constitutional requirement of three-readings is, in essence, inconsequential. Friends of the Parks v. Chicago Park Dist., 203 Ill. 2d 312, 328-329 (2003). Here, it appears that HB 219 was certified and sent to the Governor on May 18, 2023. However, since its adoption in 2003, appellate courts across Illinois have recognized that the enrolled bill doctrine puts them in the position where they are “constitutionally required to turn a blind eye to a grave constitutional violation by a co-equal branch of government.” First Midwest Bank, 2023 IL App (4th) 220643 at ¶ 241 (urging the Illinois Supreme Court to revisit the doctrine: “the Illinois Supreme Court has long documented the legislature’s complete and utter disregard for the requirements of the Illinois Constitution [the three-readings requirement], but that court has done nothing in response. The only logical conclusion is that the supreme court’s ‘reservation’ of the right to revisit the enrolled bill doctrine is nothing but bluster”); see also Accuracy Firearms, LLC v. Pritzker, 2023 IL App (5th) 230035, ¶ 36-46 (2023) (regarding the Protect Illinois Communities Act); Doe v. Lyft, Inc., 2020 IL App (1st) 191328, ¶ 52-55 (2020) (where the plaintiff urges the court to revisit the enrolled bill doctrine, raising a three-readings rule challenge pertaining to the Transportation Network Providers Act); Caulkins v. Pritzker, 2023 IL 129453, ¶ 105-113 (2023) (O’Brien, J., dissenting) (the enrolled bill doctrine should be rejected and the act should be found unconstitutional based on the three-reading requirement: “[w]hen we limit people’s rights, even the rights we might not like, we have to do so in a way that honors the constitution”).
If you have any questions about this development, please contact Johnson & Bell Shareholders, Garrett L. Boehm, Jr. or David M. Macksey.
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Illinois Representative At It Again: Proposes Illinois Wrongful Death Act to Allow Punitive Damages
