by Joseph S. Davidson
The cost of defending cases in Illinois continues to rise. Illinois governor J.B. Pritzker signed House Bill 0219 into law on August 11, 2023, effective immediately. The statutory change will allow heirs of decedents to recover punitive damages in wrongful death actions filed on or after August 11, 2023.
For years, Illinois law has “consistently held that, absent specific statutory authority or very strong equitable reasons, punitive damages are not permitted in Illinois in an action under the Survival Act (755 ILCS 5/27-6) or as part of a common law action for wrongful death.” Marston v. Walgreen Co., 389 Ill. App. 3d 337, 344. But that has changed.
Because punitive damages are not often covered by insurance policies, the risk to businesses sued in Illinois courts is now increased in a way that may be challenging to mitigate in advance. This change may also harm small businesses disproportionately, as a punitive damages verdict may have the potential to bankruptcy and shut down companies that cannot absorb such a financial loss. As Illinois Rep. Dan Ugaste (R – 65th District) argued in a House Judiciary Committee hearing opposing House Bill 0219, entire businesses could be shuttered due to the actions of “one or two bad actors,” potentially punishing employees and investors who had no role in or knowledge of the conduct leading to the lawsuit.
It is important to note however, that Illinois has not changed the standard for pleading punitive damages. Prior to pleading such damages and before a plaintiff would be permitted to ask a jury for punitive damages, Illinois law still requires the plaintiff to seek leave from the court and demonstrate to the court that the plaintiff has a “reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages.” As the Illinois Supreme Court has previously held that caps on punitive damages were unconstitutional, House Bill 0219 does not contain any such limitations. House Bill 0219 also retains the exemptions for actions related to legal malpractice, medical malpractice, and against state or local government, or their employees acting in their official capacity.
Jury verdicts, both in Illinois and across the country, have been notably higher since courtrooms re-opened following the COVID-19 pandemic and during this time of increased economic inflation. As such, it would not be surprising to see an increased number of punitive awards and potentially higher punitive awards. In any case where there is a potential for punitive damages to be sought, in cases where the injured party is deceased, businesses sued in Illinois should be aware of the increased risk and new category of damages available created by Illinois’ passage of House Bill 0219 amending the Wrongful Death Act.