{ "id": 4275039, "name": "MICHAEL IAN BENDER, as Special Adm'r of the Estate of Lawana D. Barton, a/k/a Tawana Barton, Deceased, Plaintiff-Appellant, v. DENISE EIRING et al., Defendants-Appellees", "name_abbreviation": "Bender v. Eiring", "decision_date": "2008-02-07", "docket_number": "No. 1\u201406\u20142339", "first_page": "811", "last_page": "816", "citations": [ { "type": "official", "cite": "378 Ill. App. 3d 811" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "18 Ill. 349", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 438586 ], "year": 1857, "opinion_index": 0, "case_paths": [ "/ill/18/0349-01" ] }, { "cite": "257 Ill. App. 3d 778", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2890345 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "781" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/257/0778-01" ] }, { "cite": "198 Ill. 2d 575", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 29930 ], "year": 2002, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/198/0575-01" ] }, { "cite": "306 Ill. App. 3d 822", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336045 ], "weight": 4, "year": 1999, "pin_cites": [ { "page": "825" }, { "page": "825" }, { "page": "825" }, { "page": "826", "parenthetical": "holding that \"the only asset of [the decedent's] estate was the wrongful death action\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0822-01" ] }, { "cite": "211 Ill. 2d 32", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8451063 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "43" }, { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/211/0032-01" ] } ], "analysis": { "cardinality": 596, "char_count": 12763, "ocr_confidence": 0.775, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14342090986771816 }, "sha256": "a3664c92d4f553356d0df9db5551a3a59b0d1109f8c340522f2f35894a91e50e", "simhash": "1:fb6a74c843ad5e44", "word_count": 2120 }, "last_updated": "2023-07-14T15:01:56.542688+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MICHAEL IAN BENDER, as Special Adm\u2019r of the Estate of Lawana D. Barton, a/k/a Tawana Barton, Deceased, Plaintiff-Appellant, v. DENISE EIRING et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE O\u2019BRIEN\ndelivered the opinion of the court:\nPlaintiff, the special administrator of the estate of Lawana D. Barton, a/k/a Tawana Barton (decedent), brought a negligence action against the defendants on behalf of certain of the decedent\u2019s next of kin for wrongful death, survival, and loss of society. The circuit court entered summary judgment in favor of the defendants on the decedent\u2019s parents\u2019 claims for loss of society, based on the court\u2019s conclusion that the parents could not be considered next of kin under the Wrongful Death Act (740 ILCS 180/1 et seq. (West 1996)) because they had signed disclaimers in the probate court relinquishing any interest in the assets of the deceased\u2019s estate. On appeal, plaintiff contends the trial court erred in finding that the disclaimers barred the parents\u2019 claims for loss of society damages. We affirm.\nThe Department of Children and Family Services (DCFS) obtained custody of the decedent, then age 14, in April 1991 to protect her from her mother\u2019s neglect. Following a dispositional hearing held on January 9, 1992, the juvenile court found the decedent\u2019s biological parents unwilling to care for, protect, train or discipline her, despite reasonable efforts provided by DCFS to make it possible for the decedent to return to her mother. The decedent was adjudged a ward of the court and DCFS was appointed her guardian. The decedent remained under the guardianship of DCFS, and the dispositional order remained in effect, until her death on November 20, 1997.\nWithin six months of her death, the Cook County Public Guardian filed a petition for adjudication of parental neglect in probate proceedings. This petition, filed on May 18, 1998, sought to negate \u201cany interest [the decedent\u2019s] mother or father may have had in her estate.\u201d The petition represented that her parents had \u201cwillfully failed to provide for her care or her support\u201d during the entire time that the decedent was in the custody of DCFS from April 1991 until the day of her death on November 20, 1997, and that the parents should not receive any portion of the decedent\u2019s estate based on \u201ctheir complete and total abdication of their parental duties to provide care, support and protection.\u201d\nIn connection with these probate proceedings, the decedent\u2019s biological parents thereafter executed notarized disclaimers that were accepted and spread of record on March 4, 1999. Each disclaimer stated in pertinent part that the parents each:\n\u201cHereby disclaim, reject, renounce and refuse to accept all of my rights, title and interest in and to the Estate of Lawana Barton, a.k.a. Tawana Barton (\u2018Estate\u2019). I irrevocably and voluntarily execute this Disclaimer. I fully understand and accept that I will, for legal purposes, be deemed by the laws of the State of Illinois as predeceasing my daughter, Lawana Barton, a.k.a. Tawana Barton, with respect to the assets in her Estate.\u201d\nOn March 4, 1999, the probate court entered an order stating that, \u201c [b]ased on the Court\u2019s acceptance of the disclaimers executed by the deceased\u2019s biological parents, James Snyder and Cynthia Barton will be treated as if they both predeceased the decedent.\u201d\nOn May 22, 1999, the special administrator of the estate of La-wana Barton filed a multicount complaint seeking to recover damages under section 2 of the Wrongful Death Act (740 ILCS 180/2 (West 1996)) and Survival Act (755 ILCS 5/27 \u2014 6 (West 1996)). The various counts alleged that as a result of negligence, decedent suffered a seizure while in foster care that led to her death and caused certain of her next of kin to sustain pecuniary losses, including losses of society, services, and companionship. The defendants named in the action included the foster mother, Denise Eiring, and Glenkirk, an Illinois foster care organization that contracted with the State of Illinois, along with the hospital, physicians and others involved in the decedent\u2019s medical care and treatment.\nThe trial court granted partial summary judgment in favor of all defendants with respect to the claims of the natural parents and barred their recovery under the Wrongful Death Act. The trial court relied on the duly executed disclaimers signed by the parents and the probate order whereby the parents were deemed to have predeceased the decedent with respect to the assets in her estate.\nPlaintiff filed a motion to reconsider, which the trial court denied, stating:\n\u201cAll right. As to the motion to reconsider, those arguments have already been made in the original motion. While I understand plaintiff\u2019s attempts to distinguish their, the parents\u2019 right to, *** their legal fiction of predeceasing their daughter in terms of her estate, I find that *** by signing that document they cannot take as survivors because under the legal fiction they\u2019re not alive at this time. And if they\u2019re not alive at this time, they don\u2019t have right of survivorship.\u201d\nAfter the trial court ruled on the motion to reconsider, plaintiff filed a motion for leave to file an affidavit from the biological father. The affidavit stated that the biological father had been blind since 1991 and that when he signed the disclaimer on or about January 27, 1999, he understood that he was giving up any interest in his daughter\u2019s assets and possessions, but not any rights to \u201cpersonal losses or damages that [he] could suffer or that [he] now [has] suffered because of her death.\u201d On November 4, 2005, the trial court granted the plaintiff leave to file the affidavit, but again denied the motion to reconsider.\nOn June 28, 2006, the trial court granted the plaintiffs motion for a Rule 304(a) (210 Ill. 2d R. 304(a)) finding that there was no just reason to stay enforcement or delay appeal from the earlier order granting summary judgment in the defendants\u2019 favor against the parents on their claims for loss of society under the Wrongful Death Act. This timely appeal followed.\nSummary judgment is appropriate where the pleadings, depositions and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). Review is de novo. Adams, 211 Ill. 2d at 43.\nThe issue on appeal is whether the biological parents\u2019 disclaimers in the probate proceedings, relinquishing any interest in the decedent\u2019s estate and being deemed as predeceasing the decedent with respect to assets of her estate, thereafter bar the parents from sharing in the proceeds of a wrongful death action for loss of society arising from the decedent\u2019s death. Plaintiff contends that the wrongful death action for loss of society is not an asset of the decedent\u2019s estate and, thus, that the parents\u2019 disclaimers do not bar their claims for loss of society damages. Defendants contend that the wrongful death action for loss of society is an asset of the decedent\u2019s estate and, as such, the parents\u2019 disclaimers bar them from recovering.\nAt common law, there was no cause of action to recover damages for the wrongful death of a decedent. Mio v. Alberto-Culver Co., 306 Ill. App. 3d 822, 825 (1999). In enacting the Wrongful Death Act, the legislature created an independent cause of action for damages arising from the decedent\u2019s death caused by wrongful act, neglect, or default. Mio, 306 Ill. App. 3d at 825. The Wrongful Death Act states: \u201cEvery [wrongful death] action shall be brought by and in the names of the personal representatives of such deceased person ***.\u201d 740 ILCS 180/2 (West 1996). Thus, only the decedent\u2019s personal representative is permitted to file a claim under the Wrongful Death Act; the statute does not authorize the filing of individual causes of action. Glenn v. Johnson, 198 Ill. 2d 575, 584 (2002). Further, the Wrongful Death Act provides that \u201cthe amount recovered in every [wrongful death] action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person.\u201d 740 ILCS 180/2 (West 1996). The purpose of this provision is to compensate the surviving spouse and next of kin for the pecuniary losses sustained as a result of the decedent\u2019s death. Mio, 306 Ill. App. 3d at 825.\nSection 2.1 of the Wrongful Death Act also provides:\n\u201cIn the event that the only asset of the deceased estate is a cause of action arising under this Act, and no petition for letters of office for his or her estate has been filed, the court, upon motion of any person who would be entitled to a recovery under this Act, and after such notice to the party\u2019s heirs or legatees as the court directs, and without opening of an estate, may appoint a special administrator for the deceased party for the purpose of prosecuting or defending the action.\u201d (Emphasis added.) 740 ILCS 180/2.1 (West 1996).\nThus, the legislature has expressed its clear intent that a cause of action under the Wrongful Death Act, such as the wrongful death action for loss of society damages at issue here, is an asset of the deceased estate. The appellate court also has held that a wrongful death action is an asset of the deceased estate. See Mio, 306 Ill. App. 3d at 826 (holding that \u201cthe only asset of [the decedent\u2019s] estate was the wrongful death action\u201d). Also, the wrongful death action here was filed by the plaintiff as the administrator of the decedent\u2019s estate and, as such, any money recovered under the wrongful death action will go to the estate. For all these reasons, the wrongful death action here, including the claims for the parents\u2019 loss of society damages, is an asset of the decedent\u2019s estate. Therefore, the parents\u2019 disclaimers, in which they renounced any interest in the decedent\u2019s estate and were deemed to have predeceased the decedent with respect to the assets of her estate, apply here to bar the parents from recovering for loss of society damages. No genuine issues of material fact exist, and defendants are entitled to judgment as a matter of law. Accordingly, we affirm the grant of summary judgment in favor of defendants.\nPlaintiff argues that Berard v. Eagle Air Helicopter, Inc., 257 Ill. App. 3d 778 (1994), compels a different result. Berard and the case cited therein, City of Chicago v. Major, 18 Ill. 349 (1857), addressed whether a creditor of the deceased has any interest in or right to the benefits of a judgment recovered under the Wrongful Death Act. Noting that the amount recovered in an action under the Wrongful Death Act is for the \u201cexclusive benefit\u201d of the surviving spouse and next of kin of such deceased person (see 740 ILCS 180/2 (West 1992)), the respective courts in Berard and City of Chicago held that creditors are excluded from any benefit of the award. See Berard, 257 Ill. App. 3d at 781; City of Chicago, 18 111. 349. The present case does not involve a creditor claiming an interest in or the right to the benefits of an award under the Wrongful Death Act and thus neither Berard nor City of Chicago compels a result different from the one reached here.\nPlaintiff also argues that the disclaimers are ambiguous and subject to more than one interpretation and, therefore, that the biological father\u2019s affidavit is admissible as parol evidence to interpret the language of the disclaimers. Plaintiffs contention is without merit. The disclaimers unambiguously state that the parents are relinquishing their interest in the decedent\u2019s estate and are deemed to have predeceased the decedent with respect to the assets of her estate. There is no ambiguity and the father\u2019s affidavit does not compel a result different from the one reached here.\nPlaintiff argues that the probate order whereby the parents were deemed to have predeceased the decedent with respect to the assets of her estate did not apply to the parents\u2019 claims for loss of society. Plaintiffs contention is without merit, as we have discussed above.\nFor the foregoing reasons, we affirm the circuit court.\nAffirmed.\nNEVILLE, P.J., and CAMPBELL, J., concur.\nThe original panel that sat for oral arguments in this cause was Justice O\u2019Brien, Presiding Justice Neville and Justice Murphy. Following oral arguments, Justice Murphy had to recuse himself. Justice Campbell was then assigned to replace Justice Murphy in this cause and has read the briefs and listened to the audiotape of said arguments.", "type": "majority", "author": "JUSTICE O\u2019BRIEN" } ], "attorneys": [ "Peter D. Kasdin, Ltd., of Chicago (Peter D. Kasdin and David W. Hepplewhite, of counsel), for appellant.", "Smith Amundsen, LLC, of Chicago (Michael Resis and Rita L. Gitchell, of counsel), for appellees." ], "corrections": "", "head_matter": "MICHAEL IAN BENDER, as Special Adm\u2019r of the Estate of Lawana D. Barton, a/k/a Tawana Barton, Deceased, Plaintiff-Appellant, v. DENISE EIRING et al., Defendants-Appellees.\nFirst District (4th Division)\nNo. 1\u201406\u20142339\nOpinion filed February 7, 2008.\nPeter D. Kasdin, Ltd., of Chicago (Peter D. Kasdin and David W. Hepplewhite, of counsel), for appellant.\nSmith Amundsen, LLC, of Chicago (Michael Resis and Rita L. Gitchell, of counsel), for appellees." }, "file_name": "0811-01", "first_page_order": 827, "last_page_order": 832 }