Watson v. South Shore Nursing and Rehabilitation Center , 2012 IL App (1st) 103730 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Watson v. South Shore Nursing & Rehabilitation Center, LLC, 2012 IL App (1st) 103730
Appellate Court ERNESTINE WATSON, as Independent Administrator of the Estate of
Caption WILLIAM SLOAN, Deceased, Plaintiff-Appellant, v. SOUTH SHORE
NURSING AND REHABILITATION CENTER, LLC, Defendant-
Appellee.
District & No. First District, Fifth Division
Docket No. 1-10-3730
Filed February 10, 2012
Held In a survival and wrongful death action arising from the fatal injuries
(Note: This syllabus suffered by plaintiff’s father while a patient in defendant’s nursing home
constitutes no part of when he accidentally set himself on fire while smoking without
the opinion of the court supervision, the jury’s failure to award any damages for loss of society
but has been prepared was against the manifest weight of the evidence and, therefore, the cause
by the Reporter of was remanded for a new trial on the issue of damages for loss of society;
Decisions for the however, the trial court’s award of attorney fees pursuant to the Nursing
convenience of the Home Care Act in an amount less than requested by plaintiff was
reader.)
affirmed where the trial court’s reduction of plaintiff’s claim was not so
unreasonable as to constitute an abuse of discretion.
Decision Under Appeal from the Circuit Court of Cook County, No. 2009-L-014819; the
Review Hon. Donald J. Suriano, Judge, presiding.
Judgment Affirmed in part, reversed in part, and remanded.
Counsel on Albert E. Durkin, Joseph J. Miroballi, Lauren A. Levin, and Jessica R.
Appeal Durkin, all of Miroballi, Durkin & Rudin, LLC, of Chicago, for appellant.
Joseph P. Kincaid, Catherine Basque Weiler, and Megan E. Schneider,
all of Swanson, Martin & Bell, LLP, of Chicago, for appellee.
Panel JUSTICE J. GORDON delivered the judgment of the court, with opinion.
Presiding Justice Epstein and Justice McBride concurred in the judgment
and opinion.
OPINION
¶1 This case is a survival and wrongful death action arising out of the death of William
Sloan, a patient at a nursing home operated by defendant-appellee South Shore Nursing and
Rehabilitation Center, LLC, and defendant Care Centers, Inc. It is undisputed that, on July
24, 2004, while Mr. Sloan was unsupervised inside the facility, he attempted to smoke a
cigarette and caught on fire. He suffered severe burns which led to an infection that caused
his death on June 10, 2006, at the age of 86.
¶2 After Mr. Sloan’s death, his daughter Ernestine Watson, in her capacity as administrator
of his estate, brought the instant suit against South Shore and Care Centers, claiming that Mr.
Sloan’s death was due to their negligence in leaving him unsupervised with smoking
materials. She sought survival and wrongful death damages arising out of common law
negligence claims and alleged violations of the Nursing Home Care Act (210 ILCS 45/1-101
et seq. (West 2008)). Following a trial, the jury found in favor of Care Centers but against
South Shore. It awarded damages in the amount of $1,650,547.86 for Mr. Sloan’s medical
expenses, pain and suffering, disfigurement, and loss of normal life, but it awarded no
damages for loss of society. Subsequently, plaintiff petitioned for attorney fees in the amount
of $568,187.50 pursuant to the Nursing Home Care Act, which provides for the award of
reasonable attorney fees to prevailing plaintiffs, but the trial court only awarded plaintiff
$322,110 in attorney fees.
¶3 Plaintiff now appeals, contending that the jury’s award of no damages for loss of society
was against the manifest weight of the evidence, thus entitling her to a new trial on the issue
of damages for loss of society, and also contending that the trial court erred in not awarding
attorney fees in the amount requested. South Shore does not raise any cross-appeal. For the
reasons that follow, we affirm the trial court’s grant of $322,110 in attorney fees, but we find
that plaintiff is entitled to a new trial on the issue of damages for loss of society.
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¶4 I. BACKGROUND
¶5 On May 8, 2007, plaintiff filed her instant amended complaint against South Shore and
Care Centers. In her complaint, she alleged that, at all times material to the action, Mr. Sloan
was a patient at a nursing home owned and operated by South Shore, a corporation engaged
in the custodial care of elderly and helpless individuals in need of nursing care and treatment.
Care Centers was a nursing home management company providing services to and for South
Shore.
¶6 The complaint stated that, while Mr. Sloan was in the care of South Shore, his clinical
records indicated that he required close monitoring while smoking, and defendants therefore
ordered their agents and employees to prevent him from smoking without supervision.
Notwithstanding these orders, on July 24, 2004, Mr. Sloan was allegedly left unsupervised
in the dining area of South Shore with smoking materials. He was found “engulfed in
flames” by defendants’ employees and suffered third degree burns to 30% of his upper body
which were the proximate cause of his death on June 10, 2006.
¶7 The complaint sought relief in four counts. In count I, common law negligence, plaintiff
alleged that defendants were negligent in failing to properly monitor Mr. Sloan and failing
to secure all smoking materials from him. In count II, plaintiff alleged that defendants
violated the Nursing Home Care Act, which provides, in relevant part, that “An owner,
licensee, administrator, employee or agent of a facility shall not abuse or neglect a resident.”
210 ILCS 45/2-107 (West 2006). Plaintiff alleged that defendants committed neglect by
failing to provide adequate supervision and oversight for Mr. Sloan. In count III, survival,
plaintiff alleged that as a proximate result of defendants’ conduct, Mr. Sloan suffered
personal injury, including pain and suffering, mental anguish, fright, disfigurement,
emotional distress, and humiliation. In count IV, wrongful death, plaintiff alleged that Mr.
Sloan left surviving daughters who, as a result of their father’s death, suffered injuries in
their means of support and loss of their father’s society.
¶8 Prior to trial, plaintiff filed a motion in limine barring any testimony regarding Mr.
Sloan’s preexisting medical conditions or allegations of alternative causes of death. Plaintiff
argued that such testimony would be without foundation and extremely prejudicial, since
there had been no expert opinion testimony disclosed pursuant to Illinois Supreme Court
Rule 213(f)(2) or Rule 213(f)(3) (Ill. S. Ct. Rs. 213(f)(2), (f)(3) (eff. Jan. 1, 2007)) that any
of Mr. Sloan’s preexisting medical conditions caused or contributed to his death. The trial
court granted this motion with the exception that the parties could introduce evidence that
Mr. Sloan previously had had a stroke and that he smoked cigarettes.
¶9 The case proceeded to trial. At trial, the parties stipulated that, as a result of his attempt
to light a cigarette, Mr. Sloan suffered first-, second-, and third-degree burns on his head,
face, chest, neck, and arms. These burns caused him to get an infection that was the
proximate cause of his death on June 10, 2006. The parties also stipulated that Mr. Sloan
incurred medical bills totaling $1,200,547.86 as a result of the incident.
¶ 10 Ann Livingston, Mr. Sloan’s daughter, testified for plaintiff. Mr. Sloan had five
daughters: Margaret Sloan (deceased at the time of trial), herself, Ernestine Watson,
Gwendolyn Jackson, and Sharon Sloan. She testified that, while she was growing up, their
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family was very close-knit, and Mr. Sloan was “the nucleus of our lives.” She said that she
loved her father all of her life and was very proud of him. All the way up until his accident,
she said, he was a source of confidence and advice when she needed it. She also stated that
her father’s father lived to be 92 years old, and her father’s mother lived to be 99.
¶ 11 Ann stated that in the late 1990s, her mother, Margaret Sloan (Mrs. Sloan), was
diagnosed as being in the early stages of Alzheimer’s disease. The family decided that she
needed continual care and, in 2000, placed her in South Shore. Mr. Sloan was not yet in
South Shore but, after his wife was placed in South Shore, was living by himself in an
apartment. Ann said that the sisters took care of their father and visited him daily. One day,
Ernestine came to visit her father and found that he had fallen the night before and was
unable to get up. Ann stated that the sisters were concerned over his safety and his ability to
take care of himself. As a result, in 2002, they decided to place him in South Shore as well.
Although Ann was living out of state at this time, she said that she would visit her father in
South Shore three to five times a year and kept phone contact “all of the time.” She testified
that the other sisters visited their parents at South Shore on a weekly basis and would bring
them home on weekends.
¶ 12 Ann testified that, on the day of the accident, July 24, 2004, she and her husband were
visiting in town. Together with Ernestine and Sharon, they used the occasion to visit Mr.
Sloan. They arrived around 4 p.m. Ann stated that Mr. Sloan was smiling and alert, chatting
about the Cubs and about his grandchildren. Before dinner was served, Ann and the other
visitors left in order to go shopping for Mr. Sloan. While they were shopping, Ann said,
Ernestine received a phone call that Mr. Sloan had been in an accident. They went to the
emergency room and were directed to the burn unit, where Ann saw her father “totally
wrapped from head to foot.” Ann said that the administrator of South Shore subsequently
told her that her father had set himself on fire by smoking and dropping his cigarette.
¶ 13 Ann testified that, although her father lived, he never talked to her or smiled at her again,
although he would follow her with his eyes. She said that he was not able to breathe
independently and was confined to a hospital bed for the last 23 months of his life. Mrs.
Sloan died on June 6, 2006, and Mr. Sloan died four days later, on June 10, 2006.
¶ 14 On cross-examination, Ann testified that, in the 1980s, Mr. Sloan had a stroke that
weakened his right arm. However, she said, he was still able to carry on his daily activities
“[t]o a certain extent.” She also testified that he smoked for all of his adult life.
¶ 15 Sharon Sloan, another of Mr. Sloan’s daughters, testified for plaintiff. She said that,
while she was growing up, her father was kind and loving and always there for her if needed.
“He was my shepherd,” she said. “He led me through life.” Sharon stated that before the
accident occurred, while he was in the nursing home, he enjoyed her company. She visited
often, and they would have birthday parties and dinner together on holidays. She did these
things because she loved him, and she felt that he always loved her. Before the fire, Sharon
said, her father could talk and walk. After the fire, he was not able to talk but “would just
stare at you.”
¶ 16 Ernestine Watson also testified on her own behalf. She stated that her father was a good
father, always there for his daughters, even after they were grown. She testified that he was
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kind and gentle and made his daughters understand that they were to treat others the way they
wanted to be treated. While he was in South Shore, Ernestine would visit him during her
lunch hour and in the evenings.
¶ 17 Ernestine testified that her life changed a lot as a result of the accident and her father’s
subsequent death. “I don’t have that strong figure,” she said, “because my father was there
for all of us. And he–I don’t care what his age was, he was always there. And he’s not there
for us any more.”
¶ 18 Plaintiff also called two South Shore employees to testify on her behalf. The first was
Carlotta Stuttley, who was a licensed practical nurse at South Shore in 2004, when the
accident occurred. Stuttley testified that the family visited Mr. Sloan and was concerned
about his welfare. Ernestine in particular visited “very frequently.”
¶ 19 Mary Strickland, the director of nursing for Care Centers at South Shore, testified that,
based on her observations, the Sloan family was very close. She said that one of Mr. Sloan’s
daughters visited “like every day, sometimes twice a day.” Another visited frequently. A
third was living out of town, but she would visit whenever she was in town.
¶ 20 At the conclusion of the trial, the jury found in favor of defendant Care Centers but
against defendant-appellee South Shore. It assessed damages of $1,650,547.86, itemized as
follows: $1,200,547.86 for medical expenses, $150,000 for loss of normal life, $150,000 for
pain and suffering, and $150,000 for disfigurement. However, it gave plaintiff $0 for loss of
society.
¶ 21 Subsequently, on June 10, 2010, plaintiff filed two postverdict motions: a posttrial
motion seeking a new trial on damages for loss of society and a petition to recover costs and
fees pursuant to the Nursing Home Care Act (210 ILCS 45/3-602 (West 2008)). The issues
raised in these two motions are the matters at issue in this appeal.
¶ 22 In her initial petition to recover costs and fees, plaintiff stated that she had signed a
contingency fee agreement with counsel whereby she agreed to pay one-third of any gross
recovery prior to the deduction of costs. One-third of the $1,650,547.86 judgment totaled
$550,182.62. Therefore, she contended that she was entitled to recover that amount from
South Shore. Plaintiff also stated that she sought to recover all costs associated with the
litigation and would submit a summary of those costs at a later date.
¶ 23 On September 24, 2010, the trial court held a hearing on plaintiff’s motions. Although
the court did not rule upon plaintiff’s motions on that date, it indicated that it did not
consider plaintiff’s contingency fee agreement to be a reasonable basis upon which to grant
fees under the Nursing Home Care Act.
¶ 24 Accordingly, on October 20, 2010, plaintiff provided a summary of fees itemizing the
hours that her counsel allegedly spent on the case and the applicable hourly rates. Pursuant
to that summary, plaintiff claimed that she was entitled to legal fees totaling $543,187.50.
Plaintiff subsequently submitted a request for an additional $25,000 in fees for posttrial
work, bringing her requested fee total to $568,187.50.
¶ 25 South Shore filed an objection to plaintiff’s summary of fees on October 29, 2010,
claiming that the summary was “riddled with duplicative billings, broad overestimates and
blatant inaccuracies.” South Shore attached a copy of plaintiff’s summary of fees and
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conducted a section-by-section analysis of that document in which it detailed the specific line
items and hourly rates that it contended were unreasonable. After deducting such fees, South
Shore arrived at a total sum of $309,610, which it argued would be a reasonable award of
attorney fees.
¶ 26 The trial court held a second hearing upon plaintiff’s motions on November 10, 2010. At
that hearing, it denied her motion for a new trial, finding that the zero-damage award for loss
of society was not against the manifest weight of the evidence. It also found that the sum of
attorney fees requested by plaintiff in her summary of fees, $550,182.62, was not reasonable.
Rather, the court decided to award her the amount conceded by South Shore to be reasonable,
$309,610, plus half of the amount that plaintiff sought for posttrial work, $12,500, for a total
award of $322,110.00. (South Shore had contended that plaintiff was not entitled to any fees
for the preparation of her summary of fees.) The court also awarded plaintiff all of her
claimed costs, which are not at issue in this appeal.
¶ 27 Plaintiff timely filed the instant appeal. Defendants do not raise any cross-appeal.
¶ 28 II. ANALYSIS
¶ 29 On appeal, plaintiff raises two contentions of error: first, that the trial court erred in not
granting her a new trial on damages for loss of society, and second, that the trial court erred
in not granting attorney fees in her requested amount.
¶ 30 A. Damages for Loss of Society
¶ 31 Plaintiff’s first contention is that she was entitled to a new trial on the issue of damages
for loss of society, because the jury’s decision to award zero damages for loss of society was
against the manifest weight of the evidence.
¶ 32 We review the circuit court’s decision denying plaintiff’s motion for a new trial on an
abuse of discretion standard. York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill.
2d 147, 179 (2006). In doing so, we are mindful that a jury’s award of damages is a question
of fact and, as such, is entitled to substantial deference by the court. Snover v. McGraw, 172
Ill. 2d 438, 447 (1996). Thus, a jury’s award of damages may only be overturned if the court
finds that (1) the jury ignored a proven element of damages, (2) the verdict resulted from
passion or prejudice, or (3) the award bore no relationship to the loss. Dixon v. Union Pacific
R.R. Co., 383 Ill. App. 3d 453, 470 (2008). In this case, plaintiff argues that the jury ignored
a proven element of damages, since the uncontroverted testimony of Mr. Sloan’s daughters
and South Shore employees showed that his daughters were deprived of his society by his
death. We agree.
¶ 33 Plaintiff in this case is seeking to recover loss of society damages pursuant to the
Wrongful Death Act, which provides that the jury in a wrongful death suit may award
damages to compensate the surviving spouse and next of kin for the “pecuniary injuries”
resulting from the person’s death. 740 ILCS 180/2 (West 2008). Such damages are premised
upon a rebuttable presumption that the surviving spouse and next of kin would have had a
reasonable expectation of benefits from the continuation of the life of the deceased. Chrysler
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v. Darnall, 238 Ill. App. 3d 673, 679 (1992).
¶ 34 In Elliott v. Willis, 92 Ill. 2d 530, 540 (1982), our supreme court rejected the notion that
“pecuniary injuries” within the meaning of section 2 of the Wrongful Death Act were limited
to economic losses. Rather, the court held that, in a wrongful death suit, a widowed spouse
could recover for her loss of consortium. Elliott, 92 Ill. 2d at 540. The court explained:
“ ‘[A]n individual member of a family has a value to others as part of a functioning social
and economic unit. This value is the value of mutual society and protection, in a word,
companionship. The human companionship thus afforded has a definite, substantial, and
ascertainable value and its loss forms a part of the “value” of the life we seek to
ascertain.’ ” Elliott, 92 Ill. 2d at 540 (quoting Smith v. City of Detroit, 202 N.W.2d 300
(Mich. 1972)).
Two years later, in Bullard v. Barnes, 102 Ill. 2d 505, 516-17 (1984), our supreme court
further extended “pecuniary injuries” to include the loss of society experienced by a parent
upon the death of a minor child, explaining that “the chief value of children to their parents
is the intangible benefits they provide in the form of comfort, counsel and society.” Appellate
courts have subsequently applied the reasoning of Elliott and Bullard to allow recovery for
loss of society to minor children of a deceased parent (Turner v. Williams, 326 Ill. App. 3d
541, 548 (2001) (in wrongful death suit, plaintiff children entitled to recover damages for the
“deprivation of love, companionship, and affection” from their father)) as well as adult
children of a deceased parent (Barry v. Owens-Corning Fiberglas Corp., 282 Ill. App. 3d
199, 206 (1996) (upholding loss-of-society award to adult children of deceased where
testimony established that the children kept in close contact with the deceased, saw him
regularly, and enjoyed close relationships with him)).
¶ 35 Although the term “society” eludes precise definition, the United States Supreme Court
has stated that it encompasses “a broad range of mutual benefits each family member
receives from the others’ continued existence, including love, affection, care, attention,
companionship, comfort, and protection.” Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573,
584-87 (1974).1 Illinois courts have used similar terms to describe society, speaking of
“counsel” and “comfort” (Bullard, 102 Ill. 2d at 517) as well as “love, companionship, and
affection” (Turner, 326 Ill. App. 3d at 548). However, loss of society does not include the
grief and mental anguish resulting from the death, and such damages are therefore not
recoverable in a wrongful death suit. Turner, 326 Ill. App. 3d at 548.
¶ 36 Thus, the issue in the instant wrongful death suit is whether, under the facts of this case,
Mr. Sloan’s daughters are entitled to recover for the loss of “love, companionship, and
affection” (Turner, 326 Ill. App. 3d at 548) from their father as a matter of law. As noted,
there is a presumption that, as Mr. Sloan’s next of kin, they would have had a reasonable
1
Gaudet concerned the scope of damages recoverable in a wrongful maritime death action.
Gaudet’s holding with regard to maritime actions was subsequently superseded by statute, as
recognized in Miles v. Apex Marine Corp., 498 U.S. 19, 30 n.1 (1990). However, insofar as the
instant case is not a maritime action, Gaudet’s definition of “society” retains its vitality in this
context.
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expectation of benefits from the continuation of his life. Chrysler, 238 Ill. App. 3d at 679.
However, that presumption is rebuttable, and the jury may disregard that presumption if it
determines that the facts do not support it. Id. For instance, the presumption may be rebutted
by evidence that the next of kin were estranged from the deceased, because, in such a case,
there would be no benefits derived from the continuation of his life. Bullard, 102 Ill. 2d at
517. The presumption may also be rebutted by evidence that the deceased would have died
from unrelated causes because, in such a case, even absent the defendant’s wrongful conduct,
there would be no continuation of life from which to derive benefits. Chrysler, 238 Ill. App.
3d at 679.
¶ 37 No such evidence was presented in the instant case. On the contrary, the undisputed
testimony at trial established that Mr. Sloan’s daughters enjoyed his love, companionship,
and affection during his life and, correspondingly, were deprived of such benefits upon his
death. Ernestine, Sharon, and Ann all testified to the companionship they enjoyed with their
father while he was a patient at South Shore. Ernestine testified that she routinely visited her
father at South Shore over her lunch hour and in the evenings, and the loss of his
companionship left a significant impact on her: “I don’t care what his age was, he was always
there. And he’s not there for us any more.” Sharon testified that she visited her father
frequently, and the family would have birthday parties and dinner on holidays together. She
said that she loved her father and felt that he always loved her. Ann testified that, although
she lived out of state, she would visit him three to five times a year and remained in constant
phone contact. The daughters’ testimony in this regard was corroborated by the testimony of
South Shore employees Stuttley and Strickland, both of whom testified to the frequent visits
of Mr. Sloan’s daughters. Strickland further opined, based upon her observations, that the
Sloan family was very close. See Barry v. Owens-Corning Fiberglas Corp., 282 Ill. App. 3d
199, 206 (1996) (upholding loss-of-society award to adult children of deceased where
testimony established that the children kept in close contact with the deceased, saw him
regularly, and enjoyed close relationships with him). Moreover, no evidence was presented
to rebut this testimony by, for example, showing any estrangement between Mr. Sloan and
his daughters. See Bullard, 102 Ill. 2d at 517 (defendant in wrongful death suit may rebut
presumption of loss of society by presenting evidence that the next of kin were estranged
from the deceased).
¶ 38 South Shore argues that the daughters’ testimony focused on their childhood memories
of their father and on their grief at his death, neither of which forms a basis for compensation
for loss of society. See Turner, 326 Ill. App. 3d at 548 (loss of society does not include grief
and mental anguish). However, although the daughters certainly discussed these subjects,
they also offered unrebutted testimony as to their continuing relationships with him while he
was in South Shore and the love, companionship, and affection they shared with him until
his death, as described above.
¶ 39 A jury may not arbitrarily reject the testimony of an unimpeached witness. People ex rel.
Brown v. Baker, 88 Ill. 2d 81, 85 (1981). Rather, “[w]here the testimony of a witness is
neither contradicted, either by positive testimony or by circumstances, nor inherently
improbable, and the witness has not been impeached, that testimony cannot be disregarded
even by a jury.” Id. (in paternity suit, where plaintiff testified that defendant was the only
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person with whom she had intercourse during the critical period, and there was no testimony
to raise a contrary inference or question the plaintiff’s credibility, judgment n.o.v. in
plaintiff’s favor was warranted despite the trial judge’s observation that plaintiff seemed
“ ‘flaky’ ”). In the present case, notwithstanding the fact that Mr. Sloan was in a nursing
home, the testimony presented at trial as to the companionship that Mr. Sloan shared with
his daughters was not contradicted, nor is it inherently improbable that daughters in a close-
knit family would enjoy the company of their elderly father, particularly where the testimony
showed that Ernestine visited him daily and sometimes twice daily, and Sharon visited
frequently. In addition, the credibility of the witnesses on this matter was not impeached.
Consequently, the unrebutted testimony permits no reasonable inference other than that, if
Mr. Sloan had lived beyond June 10, 2006, the daughters would have continued to enjoy his
love, companionship, and affection.
¶ 40 Moreover, there was no evidence presented to permit the jury to conclude that Mr. Sloan
had a shortened life expectancy such that he might have died of other causes if the accident
had not occurred. On the contrary, according to the United States Department of Health and
Human Services National Vital Statistics Reports Life Table, which was entered into
evidence, the average life expectancy of an 86-year-old black male was six years. In addition,
Ann testified that her father’s parents lived to be 92 and 99 years of age, which plaintiff
argues as evidence of Mr. Sloan’s probable longevity, an argument to which South Shore
offers no objection or other response in its brief. There was no expert medical testimony to
indicate that Mr. Sloan suffered from any life-threatening conditions at the time of the
accident that would have caused his death in the same time frame as his death resulting from
the accident.
¶ 41 In this regard, we note that South Shore cites, as support for the jury’s verdict, the
medical conditions suffered by Mr. Sloan that were excluded from evidence at trial pursuant
to plaintiff’s motion in limine. However, South Shore does not challenge the granting of
plaintiff’s motion on appeal. Since evidence of these conditions was never presented to the
jury, it could not have formed the basis for the jury’s decision not to award any damages for
loss of society.
¶ 42 Thus, we find the instant case to be analogous to Casey v. Pohlman, 198 Ill. App. 3d 503
(1990), and Stamp v. Sylvan, 391 Ill. App. 3d 117 (2009), in which zero-damage jury awards
were found to be against the manifest weight of the evidence. In Casey, 198 Ill. App. 3d at
505, the plaintiff driver brought personal injury suit for damages sustained in an automobile
collision, and the driver’s wife correspondingly sought damages for loss of consortium. The
jury entered a verdict in favor of both plaintiffs but awarded no damages to the wife. Id.. The
Casey court found the jury’s award of no damages for loss of consortium to be against the
manifest weight of the evidence, given clear evidence at trial that the wife suffered loss of
her husband’s companionship as a result of his injuries. Id. at 510. Thus, the court reversed
that portion of the judgment concerning the wife’s consortium award and remanded for a new
trial on that issue. Id. at 512.
¶ 43 Similarly, in Stamp, 391 Ill. App. 3d at 117, the plaintiff brought a personal injury action
arising out of an automobile accident. The jury returned a verdict awarding damages for
medical expenses for the six-month period following the accident but failing to make an
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award for pain and suffering or loss of a normal life. Id.. The circuit court granted plaintiff’s
motion for a new trial on damages for pain and suffering and loss of normal life during the
six months following the accident, and the Stamp court affirmed, finding that the jury verdict
was “irreconcilably inconsistent” where the uncontroverted evidence showed that plaintiff
suffered injury to her neck and back during that six-month period. Id. at 126. See also
Manders v. Pulice, 44 Ill. 2d 511, 516 (1970) (in suit arising from automobile collision
where jury found in favor of plaintiff but awarded zero damages to the plaintiff’s husband
for loss of consortium, the jury’s zero-damage award on the loss of consortium claim was
against the manifest weight of the evidence, since testimony at trial showed that the wife was
active and had a pleasant disposition prior to the accident, but afterwards became withdrawn
and uncommunicative, and the husband had lost wages for time he took off work to bring his
wife to doctors); Dixon v. Union Pacific R.R. Co., 383 Ill. App. 3d 453, 472 (2008) (against
manifest weight of evidence for jury to award injured railroad worker damages for pain and
suffering and economic loss but not for disability where “the uncontroverted evidence was
that plaintiff was disabled for a certain period of time after the accident”).
¶ 44 Chrysler, 238 Ill. App. 3d 673, cited by South Shore on this point, is readily
distinguishable, insofar as there was evidence in that case to permit an inference that the
defendant’s conduct did not actually deprive plaintiff of society. Chrysler was a wrongful
death suit against the physician of the deceased. Id. at 675. The jury found the defendant
physician liable but awarded no loss of society damages to the deceased’s daughter. Id. at
675. On appeal, the Chrysler court found that this was not against the manifest weight of the
evidence where there was expert testimony at trial that the deceased was suffering from
multiple life-threatening conditions and would have died from causes unrelated to the
defendant’s treatment of him around the same period of time. Id. at 679. By contrast, in the
present case, as noted, there was no expert testimony from which the jury could draw such
a conclusion regarding Mr. Sloan’s death.
¶ 45 The case of Flynn v. Vancil, 41 Ill. 2d 236 (1968), also cited by South Shore, is
distinguishable as well. Flynn arose out of an automobile accident in which plaintiff and his
wife were injured and their two-week-old daughter was killed. Id. at 237. The jury found in
favor of plaintiff on the issue of liability but awarded no damages for wrongful death. Id.
Plaintiff appealed, presenting the following certified question of law: “Can a jury verdict of
liability for the death of a two-week old female awarding no damages for the administrator
for the benefit of the surviving mother and father be sustained where there is evidence of
incurable congenital physical defects impairing the health of the child?” (Internal quotation
marks omitted.) Id.. Plaintiff presented no record of the proceedings or even a narrative of
the evidence but only this question of law. Id. at 241. Our supreme court answered that the
jury verdict could be sustained, finding that it would not necessarily be unreasonable as a
matter of law for a jury to conclude that the presumption of pecuniary loss had been rebutted.
Id. at 238-39. However, loss of society was not at issue in Flynn, insofar as the decision was
handed down well before our supreme court extended the definition of “pecuniary injuries”
to include nonmonetary injuries such as a widowed spouse’s loss of consortium (Elliott, 92
Ill. 2d at 540) and, more pertinently, a parent’s loss of society at the death of a child (Bullard,
102 Ill. 2d at 517). Rather, the presumed injury at the time of the Flynn decision would have
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been an economic injury, arising from the common law presumption that parents were
entitled to the services and earnings of their unemancipated minor children. Bullard, 102 Ill.
2d at 516; see Flynn, 41 Ill. 2d at 238 (noting that good health, industrious habits, and
potential longevity of the deceased minor would be relevant in computing such benefits).
Accordingly, the lack of recovery in Flynn is not analogous to the lack of recovery on
plaintiff’s loss of society claim in the present case.
¶ 46 Thus, for the reasons stated above, we find that the jury’s zero-damage award was against
the manifest weight of the evidence and plaintiff is entitled to a new trial on the issue of
damages for loss of society.
¶ 47 B. Attorney Fees
¶ 48 Plaintiff next challenges the trial court’s award of attorney fees. First, she contends that
the trial court made its ruling without reading plaintiff’s summary of fees, which constituted
an abuse of discretion. Second, she contends that the fees that she requested pursuant to her
fee summary were reasonable given the skill of her attorneys and the substantial time
expenditure required to litigate this case. Third, in the alternative to the previous contention,
she contends that the one-third contingency fee was reasonable.
¶ 49 The Nursing Home Care Act provides for the award of attorney fees to prevailing
plaintiffs. 210 ILCS 45/3-602 (West 2008) (“The licensee shall pay the actual damages and
costs and attorney’s fees to a facility resident whose rights, as specified in Part 1 of Article
II of this Act, are violated.”). In awarding fees under the Nursing Home Care Act, only those
fees expressly deemed reasonable by the court should be allowed. Berlak v. Villa Scalabrini
Home for the Aged, Inc., 284 Ill. App. 3d 231, 244 (1996). The plaintiff bears the burden of
establishing the reasonableness of the fees sought. Harris Trust & Savings Bank v. American
National Bank & Trust Co. of Chicago, 230 Ill. App. 3d 591, 595 (1992). A trial court has
broad discretion in awarding attorney fees, and its decision will not be reversed on appeal
absent an abuse of discretion. In re Estate of Callahan, 144 Ill. 2d 32, 43-44 (1991).
¶ 50 1. Whether the Trial Court Read Plaintiff’s Fee Summary
¶ 51 Plaintiff first alleges that the trial court indicated at the November 10, 2010, hearing that
it had not read her summary of fees before rendering its decision not to grant fees in the
amount requested. We disagree.
¶ 52 As noted, plaintiff presented her summary of fees to the court on October 20, 2010. The
record reflects that she delivered additional copies of that summary to the judge on
November 5, 2010, and on November 9, 2010. In addition, South Shore attached a copy to
its objection to plaintiff’s summary of fees, filed on October 29, 2010. Nevertheless, at the
November 10, 2010, hearing, the judge stated:
“I did have the opportunity to scrutinize the fee petition like the defendant has, I don’t
even think I have a copy of all the–well, I did have some things, but it wasn’t itemized
like what the Defendant has.
The Defendant has presented a response that I think is somewhat reasonable, and in
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responding to a reasonable fee petition, they are arguing or admitting that at least
$309,610 is reasonable. So that’s good enough for the Court, too.”
¶ 53 Plaintiff argues that, when he said “I don’t even think I have a copy,” the judge was
expressing a belief that he had not received any copy of plaintiff’s summary of fees and thus
had not read it. However, such an interpretation is belied by the context in which this
statement was made. The judge indicated that he was basing his fee award, in large part,
upon the arguments presented in the objection submitted by South Shore. That objection
contained an attached copy of plaintiff’s itemization of fees and referred to it extensively in
arriving at the figure of $309,610. It is not plausible that someone could read defendant’s
objection, which the judge apparently did, while remaining unaware of the attached summary
of fees to which the objection constantly refers. On the contrary, the judge mentions the
itemization that accompanied South Shore’s submission, demonstrating that he was well
aware of it. Thus, it appears that, even if the judge did not have, or had misplaced, plaintiff’s
itemization of fees as presented to him via plaintiff’s submissions, he nevertheless had a copy
of that itemization of fees which was attached to South Shore’s objection and, moreover, was
aware of this fact. Nor does the judge state at any point that he failed to read that itemization
prior to rendering his decision.
¶ 54 It is generally presumed that a judge will read material in his possession that is cogent
to his decision. See People v. Wolski, 83 Ill. App. 3d 17, 23 (1980) (judge who issues search
warrant is presumed to have read warrant and accompanying complaint); In re Upmann, 200
Ill. App. 3d 827, 833 (1990) (rejecting petitioner’s argument that written judgment drafted
by respondent’s attorney and signed by judge did not reflect judge’s actual grounds for
decision, since “[w]e will not presume that the judge did not read the document or realize
what was contained therein”); Kaeding v. Collins, 281 Ill. App. 3d 919, 928 (1996) (Lytton,
J., specially concurring) (in a contempt case based upon the filing of improper pleadings, it
can be presumed that the judge will obtain and read the documents in question). In this case,
where the judge had the document in question and referenced it during the hearing, and
where it was clearly cogent to his ruling, the conclusion that the judge actually read that
document is firmly supported.
¶ 55 2. Whether Plaintiff’s Summary of Fees Was Reasonable
¶ 56 Plaintiff next contends substantively that the sum of $543,187.50 contained in her
summary of fees was reasonable under the lodestar approach, and the trial court abused its
discretion in reducing it to $309,610.
¶ 57 Under the lodestar approach, the starting point for calculating the amount of a reasonable
attorney fee is the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Berlak, 284 Ill. App.
3d at 242-43 (applying Hensley lodestar approach to assessing reasonableness of fees under
the Nursing Home Care Act). This lodestar figure may be adjusted up or down based upon
a broad range of factors, including, though not limited to, the difficulty of the issues
involved, the skill required to perform the legal services properly, the experience, reputation,
and ability of counsel, the results obtained by the plaintiff, and whether the plaintiff failed
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to prevail on unrelated claims. Hensley, 461 U.S. at 434; Berlak, 284 Ill. App. 3d at 243.
¶ 58 In this case, South Shore attacks both the number of hours and the hourly rates claimed
by plaintiff’s attorneys as excessive and unreasonable. In support, it cites to the analysis of
plaintiff’s claimed fees that it presented in its objection, which formed the basis for the trial
court’s decision.
¶ 59 With regard to the number of hours claimed by plaintiff, South Shore presented the court
with an extensive list of billings contained in plaintiff’s fee summary that it claimed were
unnecessary. For instance, South Shore alleged that plaintiff’s attorneys billed time for case
management conferences on three days where a review of the court docket on those dates
showed that no such conferences were held. South Shore also pointed out that plaintiff’s
attorneys billed time for sending a deposition notice to someone named “Peterson,” who,
South Shore claimed, was not a person who was involved in the case. In addition, South
Shore claimed that plaintiff’s attorneys double-billed certain hours. For instance, in the
section on written discovery, there was an entry dated April 4, 2009, for “213(f),” with a
series of five dates after it. However, on four of those listed dates, work on “section 213”
disclosures was listed separately. Similarly, South Shore pointed out that responses to
interrogatories were billed under both correspondence and written discovery, and research
to locate witnesses was billed under both correspondence and research.
¶ 60 South Shore also contends that the hourly rates claimed by plaintiff are unreasonable.
Plaintiff sought to recover $550 per hour for each of the two partners who appeared at trial,
$350 per hour for an associate who appeared at trial, $450 per hour for depositions and
travel, and $350 per hour for all other work. South Shore first contends that the hourly rate
that plaintiff claims for partners is excessive. Second, it argues that associates should receive
a lower hourly rate of pay than partners, but plaintiff does not differentiate between the work
done by partners and the work done by associates except for the hours claimed at trial. In that
regard, South Shore notes that the rates charged by plaintiff’s attorneys far exceed the rates
charged by South Shore’s attorneys over the same time period. South Shore stated that
partner D. Timothy McVey charged $175 to $185 an hour over the course of the litigation,
while his associates charged $140 to $160 an hour. Partner Larry Helms charged $300 per
hour, and his associates charged $225 an hour.
¶ 61 Plaintiff responds by arguing that a higher hourly rate is justified in her case because her
attorneys were more experienced than South Shore’s attorneys. Further, while plaintiff
admits in her brief that some of the work was done by associates, she alleges that all of that
work was “critically managed” by partner Joseph Miroballi. She also alleges that the majority
of the claimed hours were spent by Miroballi himself.
¶ 62 Upon review of South Shore’s objection, and keeping in mind that we review the trial
court’s decision for abuse of discretion (Callahan, 144 Ill. 2d at 43), and “[w]hat is excessive
is a matter of opinion” (Harter v. Iowa Grain Co., 220 F.3d 544, 562 (7th Cir. 2000)
(declining to reverse district court’s discretionary judgment as to whether claimed fees were
excessive)), we find that the trial court’s reduction of plaintiff’s claimed attorney fees was
not so unreasonable as to constitute an abuse of discretion.
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¶ 63 3. Whether the One-Third Contingency Fee Was Reasonable
¶ 64 Finally, plaintiff contends that her counsel’s one-third contingency fee was reasonable,
and the trial court erred in not awarding her attorney fees upon that basis. The sole argument
that plaintiff makes as to the reasonableness of the contingency fee under the facts of this
case is that the contingency fee, which totaled $550,182.62, was highly similar to the fees
based upon the itemization, which totaled $568,187.50.2 Plaintiff makes the unsupported
assertion that the reasonableness of the latter supports the reasonableness of the former.
However, as discussed, we have found that the trial court did not abuse its discretion in
finding the sum contained in plaintiff’s itemization to be unreasonable. Thus, we need not
delve further, since plaintiff’s argument with respect to the contingent fee is unsound in that
it relies upon a faulty premise. See Bohne v. La Salle National Bank, 399 Ill. App. 3d 485,
503 (2010) (observing that points not argued in an appellant’s brief are forfeited).
¶ 65 Thus, for the foregoing reasons, we affirm the trial court’s grant of $322,110 in attorney
fees to the plaintiff. However, we reverse the trial court’s denial of plaintiff’s posttrial
motion for a new trial on the issue of damages for loss of society and remand for further
proceedings.
¶ 66 Affirmed in part, reversed in part, and remanded.
2
As noted, this sum contains an additional $25,000 in posttrial costs claimed by plaintiff.
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