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.
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
