On August 11, 2023, Illinois Governor J.B. Pritzker signed into law a bill that amends the Wrongful Death Act (740 ILCS 180/1 and 740 ILCS 180/2) and the Survival Act (755 ILCS 5/27-6) to allow the recovery of punitive damages. This new law does not apply in malpractice actions against medical providers or lawyers, and it does not apply to actions against state or local government entities and employees, but for all other cases, punitive damages are now recoverable on cases filed on or after August 11, 2023.
This is one of many laws impacting civil litigation in Illinois that have been pushed quickly through the General Assembly by those closely aligned with the state’s powerful trial lawyers. It is also likely to be taken up for review rather quickly on constitutional challenges.
Despite this change, punitive damages cannot be asserted in the initial complaint. Pursuant to 735 ILCS 5/2-604.1, a plaintiff seeking punitive damages must file a motion seeking such relief and the motion must be filed no later than 30 days after the close of discovery.
This new law is expected to have a significant impact on companies because, as a general rule, punitive damages are not insurable under Illinois law. Additionally, insurance companies may seek to avoid coverage due to willful/intentional act exclusions.
Impact In Dramshop Act Cases
One question I have heard from many clients is – does this new law impact cases filed pursuant to the Illinois Dramshop Act. The short answer is – it shouldn’t.
The Illinois Supreme Court has clarified that the only causes of action allowed under the Dram Shop Act are those for personal injuries, property damages and loss of support or loss of society. Cunningham v. Brown, 22 Ill. 2d 23, 30-31 (1961). Since Cunningham, the Illinois Supreme Court has applied that rule in conjunction with the Wrongful Death Act and has held a wrongful death cause of action cannot be maintained against tavern operators and operators. Knierim v. Izzo, 22 Ill. 2d 73, 79 (1961); see also McKeown v. Homoyo, 209 Ill. App.3d 959, 961 (5th Dist. 1991) (holding that the Liquor Control Act provides the exclusive remedy for the negligent sale or supply of liquor, if the alleged injury arises in any way from the sale of intoxicating beverages).
Based on this well-established law, judges throughout the state consistently dismiss any complaint which asserts a wrongful death claim within a Dramshop Act case. Therefore, the additional of punitive damages pursuant to the Wrongful Death Act should not impact Dramshop Act cases.
The answer is not as crystal clear with survival claims. The Illinois Survival Act is below, with the new language bolded:
Sec. 27-6. Actions which survive.
In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages, including punitive damages when applicable, for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or for the detention or conversion of personal property, actions against officers for misfeasance, malfeasance, or nonfeasance of themselves or their deputies, actions for fraud or deceit, and actions provided in Section 6-21 of the Liquor Control Act of 1934. Nothing in this Section affects the applicability of Section 2-1115 of the Code of Civil Procedure or Section 2-102 or 2-213 of the Local Governmental and Governmental Employees Tort Immunity Act.
Punitive damages are not available in an action for healing art malpractice or legal malpractice or in an action against the State or unit of local government or an employee of the State or an employee of a unit of local government in his or her official capacity.
Personally, I would have preferred the amendment specifically state that punitive damages are not available in Section 6-21 (Dramshop) actions. However, based on the how the amended section is written, only “actions to recover damages” may assert punitive damages. The Survival Act continues to list Dramshop claims as separate and distinct from “actions to recover damage”, so therefore, punitive damage should not apply under Section 6-21 claims.
In the past, most courts have not dismissed complaints which assert a survival action as part of a Dramshop claim. However, based on these new changes, it is now more important than ever to file Section 2-615 motions to dismiss if a Survival Act claim is asserted. If the motion is denied, an affirmative defense should be asserted. I also anticipate this will be an issue in front of the Illinois Supreme Court soon.