Illinois Attorneys Have a Duty in Wrongful-Death Actions to Decedent’s Beneficiaries

Leona Smith, the mother of Perry Powell, was appointed guardian of her son’s person but not his estate after a judge ruled that Powell was disabled because of severe mental disability. Powell’s father died, allegedly because of medical malpractice. Attorneys were hired by Smith, who then acted as special administrator of the decedent’s estate to litigate a wrongful-death claim for her deceased husband, Powell’s father.

The wrongful-death medical malpractice case was settled, but the lawyers who handled it failed to follow the requirements of Section 2.1 of the Illinois Wrongful Death Act.

Powell would have shared in the settlement proceeds, which exceeded $5,000. According to Section 2.1 of the Illinois Wrongful Death Act, the probate court must be in charge of supervising the administration and distribution of those funds.

The lawyers handling the medical malpractice case skipped the probate court, allegedly because the lawyers were negligent; instead, the settlement proceeds were paid directly to Powell’s mother, Leona Smith. Smith reportedly spent all but $26,000 of the settlement proceeds, which would have been $118,000 to the benefit of Powell. The spending of the settlement proceeds that belonged to Powell’s disabled person’s estate occurred before Robert F. Harris, the Cook County public guardian, was appointed Perry Powell’s plenary guardian.

Harris brought a lawsuit on behalf of Powell against the lawyers for legal malpractice, but the lawyers moved to dismiss contending that they owed no duty to Powell. The defendant lawyers argued, among other things, that lawyers hired to pursue a wrongful-death claim do not owe a duty to beneficiaries because of the “potential for conflicts” when dividing of the proceeds.

The trial judge dismissed Harris’s complaint, but on appeal the Illinois Appellate Court reversed it. Then the Illinois Supreme Court took the case up agreeing with the Illinois Appellate Court First District and ruled that “an attorney who brings a wrongful death action owes a legal duty to the decedent’s beneficiaries at the distribution of fund phase of the action.”

Because “no specific conflict was alleged here,” the Illinois Supreme Court declined to consider whether “the ‘potential for conflicts’ should negate the imposition of a duty.” Left to decide was a question about “the scope of an attorney’s duty in a wrongful death action when a conflict among the beneficiaries is specifically alleged.”

According to the Illinois Supreme Court’s decision in this case, whether a legal duty exists is a question of law to be determined by the court. Ward v. Kmart Corp., 136 Ill.2d 132 (1990).

In general, an attorney is liable only to his client, not to third persons. Pelham v. Griesheimer, 92 Ill.2d 113 (1982). However, if a non-client is an intended third-party beneficiary of the relationship between the client and the attorney, the attorney’s duty to the client may extend to the non-client as well. Id. at 20-21.

In another case, DeLuna v. Burciaga, 223 Ill.2d 49 (2006), the Illinois Supreme Court dealt with the application of the legal malpractice statute of repose. The court determined that an attorney hired to bring in a medical-malpractice and wrongful-death action owed plaintiffs, the decedent’s children, a fiduciary duty. The court reasoned that since the wrongful-death action was “indisputably brought for the children’s benefit,” the attorney owed the children a fiduciary duty. In another case decided by the Illinois Supreme Court, Carter v. SSC Odin Operating Co., 2012 IL 113204, the court stated that it recognized that the decedent’s spouse and next-of-kin are the true parties in interest in a wrongful-death action, rather than the personal representative, who is merely a nominal party.

In an Illinois wrongful-death action, the act creates a cause of action for pecuniary losses suffered by the deceased’s spouse and next-of-kin by reason of the death of the injured person. Section 2 of the Act provides that every wrongful-death action shall be brought by and in the names of the personal representative of the deceased, but the amount recovered in such action shall be for the “exclusive benefit of the surviving spouse and next-of-kin” of the deceased. Section 2 also governs the distribution of any recovery and provides that the amount recovered in such an action shall be distributed “to each of the surviving spouse and next-of-kin of such deceased person” according to their degree of dependency as determined by the court.

In this case, the allegation that an attorney’s duty extends only to the personal representative is at odds with the very purpose of the Act and ignores the cases and the decisions of Pelham, DeLuna and Carter.

In this case, the defendants did not specifically allege in their motions to dismiss that there were any conflicts among the beneficiaries. Defendants had alleged only that “the potential for conflicts” should negate the imposition of a duty. A motion to dismiss, 735 ILCS 5/2-615(b) “must specify wherein the pleading or division thereof is insufficient.” Since there is no specific conflict alleged, the court of a review will not decide moot or abstract questions or render advisory opinions. Therefore, the court made no determination as to the scope of an attorney’s duty in a wrongful-death action when a conflict among the beneficiaries is specifically alleged.

In summary, the court reiterated its position that lawyers do owe a duty to wrongful-death case beneficiaries.

In re Estate of Powell, 2014 IL 115997 (June 19, 2014).

Kreisman Law Offices has been handling medical negligence cases, nursing home abuse cases, birth injury cases, misdiagnosis case and hospital negligence cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Chicago Heights, Calumet Park, Cicero, Joliet, Dolton, East Hazelcrest, Elgin, LaGrange, Norridge, Northbrook, Oak Forest, Prospect Heights, Roselle, Schiller Park, South Barrington, South Holland, Western Springs, Tinley Park, Chicago (Roscoe Village, Sauganash, South Shore, Kenwood, Forest Glen, Canaryville, Austin, Lincoln Square, Chinatown, Printer’s Row), Palatine, Glencoe and Deerfield, Ill.

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