The Illinois Supreme Court has upheld a ruling establishing that surviving spouses who win wrongful death judgments do not forfeit their right to the money if they remarry, even if a portion of the money was supposedly to compensate them for the loss of household labor, such as cooking meals and doing laundry, the other spouse would contribute to the family.
After Lois Passafiume died in September 2014, her husband, Paul, brought a successful wrongful death lawsuit against doctors involved in treating his wife’s blood clot. Before the jury trial, the doctors filed numerous motions seeking to limit testimony of an economist concerning Paul Passafiume’s “loss of material services,” arguing those damages belong to a larger loss of consortium claim, which they say terminated with Passafiume’s December 2015 marriage.
Grundy County Circuit Court Judge Lance Peterson agreed with Passafiume’s contention that loss of material services are instead categorized as loss of financial support, which unlike consortium, is not limited by a remarriage. The economist, Stan Smith, first estimated the value at $913,881 based on a calculation of Lois’ lost wages plus her employment benefits, but subtracting her personal consumption. He then added almost $85,000 based on the two or three hours per day Lois spent doing household chores, using $14.99 an hour and a life expectancy of age 78.
During cross-examination, Smith said the loss of material service damages, if calculated only through Passafiume’s next marriage, would reach $24,808. But after Passafiume’s cross-examination, and over objection, he announced his second marriage ended in divorce after 18 months.
The jury awarded Passafiume $2.12 million, but it was reduced to about $1.7 million based upon the jury finding Lois to be 20% contributorily negligent. The award included $1.4 million for the “value of earnings and household services lost and the present cash value of” such services likely lost going forward.
Judge Peterson rejected the doctors’ post trial motions for either a new trial or damage reduction. Then the Illinois Third District Appellate Court refused to agree there was a reversible error by allowing the jury to consider damages after Passafiume’s second marriage.
In September, the Illinois Supreme Court affirmed both rulings. Justice Elizabeth Rochford wrote the 6-0 opinion.
Justice Mary K. O’Brien took no part in the decision. Before becoming an Illinois Supreme Court justice, she had served on the Illinois Third District Appellate Court where the case at issue was heard.
Rochford said the long history of Wrongful Death Act precedent bolsters Passafiume’s position that remarriage doesn’t influence financial damages. The justices also agreed that although plaintiffs can recover loss of material services damages in common-law loss of consortium litigation, there is a legal framework for avoiding the potential of double recovery. The court also examined the aspects of wrongful death damages that can be mitigated if a surviving spouse remarries.
The appellate panel said the 1982 Illinois Supreme Court opinion, Elliott v. Willis, had been wrongly interpreted in succeeding years but should have been seen as “intended to expand the relief available under the (Wrongful Death) Act by eliminating the need for a separate loss of consortium claim.” Rochford said the justices agreed with that position, noting that holding otherwise would mean damages could be calculated differently for surviving spouses and other next of kin.
Using the old analysis, Rochford wrote, would mean “a plaintiff spouse seeking material services damages would have to pursue those damages as part of loss of consortium damages, which would be subject to a limitation in damages if he or she remarries. In contrast, a plaintiff child or parent could seek material services damages under the Act, and those damages would not be subject to limitation.”
The Illinois Trial Lawyers Association filed a brief in support of Passafiume, but Rochford said that brief’s framing asked the court to take up issues the parties didn’t raise, so the justices declined to do so.
The Illinois Defense Counsel, through the Chicago firm of Freeman Mathis & Gary, filed its own brief, but in support of the physicians. The group warned a ruling favoring Passafiume “will impact every wrongful death case involving a spouse that has the potential to recover,” and “could fundamentally change how claims are pursued and damages awarded in wrongful death cases.”
The IDC insisted Illinois precedent holds “material services and sentimental services” shouldn’t be treated separately and that doing so constitutes an erroneous assumption that the physical services a spouse provides to a household can be reduced to the cost of hiring a third party to do that work, a decision it said could lead to calculating “economic substitutes for companionship and sexual relations” and make Illinois attractive to forum-shopping litigants seeking a financially forgiving legal climate.
“We intuitively know that one spouse doing laundry or preparing a meal for their husband or wife is different from hiring a cook or a laundress to perform the same task. Spouses perform household chores for each other as part of the marital relationship,” according to the brief. “They are acts of love and caring, not paid labor. The Third District’s holding would force courts and juries to evaluate every chore that a deceased spouse did and assign it a tangible monetary value. This would force juries to evaluate the costs of everything from maid service, to lawnmowing to dishwashing to childcare to a potential endless list of household tasks.”
This article was first published in Cook County Record.
