2018 IL App (3d) 170708
Ill. App. Ct.2018Background
- Mary Messmore, an assisted‑living resident at Lighthouse of Silvis, suffered falls in December 2014, was hospitalized for a subdural hematoma, returned to the facility, and died January 8, 2015.
- Her husband, Merton Messmore, as personal representative, sued Silvis Operations, LLC and nurse Cynthia McCoy, initially asserting survival claims (pre‑death negligence) and later adding a wrongful death claim.
- Lighthouse’s resident agreement provided for mandatory arbitration; the trial court previously compelled arbitration of the survival claims and dismissed them from court; that decision was affirmed on interlocutory appeal (pending further review by the Illinois Supreme Court).
- Plaintiff’s amended complaint pled the same factual allegations for both survival and wrongful death claims; wrongful death alleges the same negligent acts caused Mary’s death and damages to next of kin.
- Defendants sought a stay of the wrongful death proceedings under section 2(d) of the Uniform Arbitration Act pending arbitration of the survival claims; the trial court denied the stay and defendants appealed under Illinois Supreme Court Rule 307(a)(1).
- The appellate court considered whether section 2(d) required staying issues in the wrongful death case that overlap with arbitrable survival issues and remanded with instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 710 ILCS 5/2(d) (Uniform Arbitration Act) required a stay of the wrongful death proceedings when survival claims were ordered to arbitration | Messmore: No — survival claims already dismissed from court, so no arbitrable issues remained in the wrongful death case; section 2(d) therefore inapplicable | Silvis: Yes — section 2(d) mandates a stay of any action or proceeding involving an issue subject to arbitration; overlapping issues require a stay | Court: Section 2(d) applies to issues (not just claims) and requires staying any issues in the wrongful death case that are subject to arbitration (i.e., negligence) |
| Scope of any required stay — whether issues are severable and what may proceed while arbitration occurs | Messmore: The wrongful death case may proceed (trial/discovery) because it is a distinct claim with different elements | Silvis: Judicial economy and arbitration policy favor staying the entire wrongful death action | Court: Negligence (duty/breach) is common and not severable — those proceedings must be stayed; proximate cause (death vs. injury) and damages (pecuniary losses) are severable and the trial court has discretion to allow discovery/trial on those issues (e.g., plaintiff’s deposition) |
Key Cases Cited
- Contract Development Corp. v. Beck, 210 Ill. App. 3d 677 (discusses that §2(d) stays issues subject to arbitration)
- Board of Managers of the Courtyards at the Woodlands Condominium Ass’n v. IKO Chicago, Inc., 183 Ill. 2d 66 (stay may be whole proceeding or limited to severable arbitrable issues)
- Advincula v. United Blood Services, 176 Ill. 2d 1 (survival action preserves decedent’s pre‑death claims)
- Murphy v. Martin Oil Co., 56 Ill. 2d 423 (distinguishes damages available in survival actions)