In 1957 two cousins, Richard R. Zukowski and Edwin F. Zukowski, founded the Crystal Lake law firm that today is known as Zukowski, Rogers, Flood & McArdle.

For the online version of the McHenry County Business Journal, please follow this link.

David J. Loughnane has practiced law since 1972 in Illinois and Wisconsin. Loughnane’s state and federal civil litigation and trial work involving personal injury, healthcare, privacy and employment law have resulted in more than 60 jury verdicts and several verdicts in bench trials. He is a certified mediator and is counsel to the Amateur Hockey Association of Illinois.

Andrew W. Holstine has practiced law since 2001. Holstine joins ZRFM after working as a business lawyer for a Northbrook-based estate planning boutique. He focuses on gift tax planning, legacy planning, estate and trust administration, succession planning, and business transactional work. He is vice president of the Chicago Farmers, a group of professionals and investors interested in production agriculture and agribusiness.

William C. Westfall is a first year associate concentrating on local government law and municipal traffic code enforcement. Westfall is a 2011 graduate of Northern Illinois University College of Law and a 2008 graduate of the University of Notre Dame.

“We’re extremely pleased that David Loughnane, Andrew Holstine and William Westfall have joined our firm,” says managing partner Richard G. Flood. “During a time when many law firms are experiencing layoffs and downsizing, Zukowski, Rogers, Flood & McArdle is proud to be building up its practices by hiring new and experienced attorneys. We are very pleased to have these lawyers serve our clients.”

For more information about these lawyers, please view the professional biographies of David Loughnane, Andrew Holstine and William Westfall.

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Pursuing Claims for Grief Under the Revised Wrongful Death Act

Written by:

Elizabeth Felt Wakeman, Gregory J. Barry
Zukowski, Rogers, Flood & McArdle, Crystal Lake, IL

Summary:

Juries are now permitted to consider grief, sorrow, and mental suffering in wrongful death cases. Maximizing (or minimizing) this new aspect of a claim requires consideration of the impact of the new law at each stage of the trial.

Until recently, wrongful death claims for grief, sorrow or mental suffering incurred by next of kin were not recognized in Illinois. Next of kin were limited to pursuing pecuniary claims based on their relationship with the deceased such as loss of society or support. However, that all changed in 2007 when the Wrongful Death Act (740 ILCS 180/2) (“Act”) was amended by the Illinois legislature. The legislature’s revision now specifically allows next of kin to seek damages for the “grief, sorrow and mental suffering” that they have incurred as a result of the wrongful death. This article will examine the ramifications of this new and significant development for wrongful death claims, including the mechanics of navigating such a claim from the perspective of a plaintiff’s attorney.

Our firsthand experience with the new law stems from a January 2011 trial where our firm represented a young boy in the wrongful death of his father in a motorcycle collision that occurred within months of the amendment to the Wrongful Death Act. The jury returned a verdict in the boy’s favor, notably including $100,000 as a separate line item of damages for the boy’s grief, sorrow and mental suffering. This verdict is the first reported jury award for grief, sorrow and mental suffering under the revised Wrongful Death Act.

I. Grief, Sorrow, and Mental Suffering – Added by Public Act 95-3

Section 2 of the Act prior to the 2007 revision did not explicitly permit damages for grief, sorrow, and mental suffering. Rather, it permitted damages that would be “a just and fair compensation with reference to the pecuniary injuries suffered resulting from [the] death.” 740 ILCS 180/2 (2006). Longstanding case law, however, held that grief, sorrow, and mental suffering were not to be considered in determining this “just and fair compensation.”[1] This was reflected in the Pattern Jury Instructions as well. See IPI Civ 3d No 31.07 (2011).

Public Act 95–3, effective on May 31, 2007, clarified Section 2 to provide that: “the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, including damages for grief, sorrow, and mental suffering, to the surviving spouse and next of kin of such deceased person.” 740 ILCS 180/2 (emphasis added on language added by PA 95–3). This was the sole substantive change in the law effected by the public act — only Section 2 of the Wrongful Death Act was changed, and the other changes were merely to clarify the statute and to specify the prospective application of PA 95–3.

II. Legislative History

While there is as of yet no case law to clarify the impact of the “grief, sorrow, and mental suffering” aspects of damages in wrongful death claims, there was substantial debate in the legislative chambers prior to the passage of PA 95–3. Without repeating the floor debates verbatim, the following principles can be gleaned as to the understanding of the legislators – both those who supported and those who opposed the bill — of the construction, application, and practical effect of the bill:[2]

• PA 95–3 only alters the issues to be considered in awarding damages, and not standing, damage caps, or other issues;
• The jury will be able to consider grief, sorrow, and mental suffering;
• Attorneys will be able to present evidence and argument on those issues;
• Jury instructions will be revised to either provide one line item for the new elements or separate, new lines for each element;
• Verdict forms will have either one new line item or separate new line items as contemplated for the jury instructions;
• “Grief, sorrow, and mental suffering” are separate and distinct from other pecuniary damages under the Wrongful Death Act (and are capped, non-economic damages under the Medical Malpractice Act);
• “Grief, sorrow, and mental suffering” are different from loss of society;
• The new terms will remain undefined and will be determined by effective advocacy at trial.

III. Jury Instructions

As predicted by the various legislators, the pattern jury instructions have been revised to reflect the statutory amendment. Instruction 31.01 lists “[t]he grief, sorrow, and mental suffering of [next of kin]” as distinct consideration in determining pecuniary loss. IPI Civ 3d No 31.01 (2011 ed). The comment to Instruction 31.01 reads: “Item 9 is a new addition to the instruction. Its inclusion is based on the 2007 amendment to the Wrongful Death Act, 740 ILCS 180/2. That amendment (PA 95–3) permits the recovery of damages for grief, sorrow, and mental suffering of the next of kin.” Similar revisions to the instructions and notes in the commentary are found in Instructions 31.01(a), 31.02, 31.02(a), 31.03, 31.03(a), 31.04, 31.05, and 31.06.

Even when PA 95–3 has not resulted in an alteration of the Illinois Pattern Jury Instructions, its presence is still significant. Paragraph 2 of the current version of Instruction 31.07 (“Measure of Damages—Wrongful Death—Factors Excluded”) continues to direct the jury not to consider “[t]he grief or sorrow of the next of kin.” However, the Notes on Use state: “For causes of action that accrue after May 31, 2007, paragraph 2 should be deleted from this Instruction. Under PA 95–3, effective May 31, 2007, next of kin may recover damages for their grief, sorrow and mental suffering.” Thus, Instruction 31.07 will only direct the jury not to consider the decedent’s pain and suffering and the next of kin’s poverty or wealth.

Finally, the Notes on Use in the above Instructions require Instruction 31.11, “Damages—Loss of Society—Definition” to be used whenever loss of society is claimed. Instruction 31.11 defines “loss of society” as “the mutual benefits that each family member receives from the other’s continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.” This is the current definition under the 2011 edition of the Illinois Pattern Jury Instructions, and as such, the editors consciously omitted “grief, sorrow, and mental suffering” from the definition of loss of society. This presents a strong argument that “loss of society” and “grief, sorrow, and mental suffering” are to be separate areas of recovery in jury awards, and that grief, sorrow and mental suffering are not subsumed into loss of society.

Because the pattern jury instructions have already been changed to reflect the amendment to the Wrongful Death Act, counsel for plaintiffs should be comfortable submitting the Instructions for consideration. Counsel for defendants will have an uphill climb trying to block use of the Instructions, especially since grief, sorrow, and mental suffering are enshrined in the Act as matters for the jury to consider in awarding damages.

A. Pattern Verdict Forms

While the Illinois Pattern Jury Instructions contains specific directions on jury instructions, including with regard to grief, sorrow and mental suffering in Wrongful Death Act cases, its verdict forms are far more general. This holds true for the verdict forms that may be used in wrongful death cases. For example, see Instruction B45.01 (“Verdict Form A—Single Plaintiff and Defendant—No Contributory Negligence Pleaded”). The entire form reads:

VERDICT FORM A

We, the jury, find for plaintiff’s name and against defendant’s name. We assess the damages in the sum of, [itemized as follows:]

[Signature Lines]

At trial, practitioners should expect a dispute on how the categories of damages should be “itemized as follows” on the submitted verdict form. Expect defense counsel’s argument to be that since the pattern jury instructions verdict forms do not provide for a separate line item for grief, sorrow and mental suffering, and that the jury instructions do take those items into account, that the verdict form should be left as is. Plaintiffs’ counsel, in response, would likely refer the court to Instruction 31.06 and the related instructions, which specifically reference grief, sorrow and mental suffering as a measure of damages as elaborated upon in the notes and comments. Plaintiffs’ counsel may also point out that the next of kin’s grief, sorrow and mental suffering is clearly separate in nature from loss of society, in that Instruction 31.11 defines society as “the mutual benefits that each family member receives from the others continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection.” That definition makes no reference to personal grief, sorrow and mental suffering of the next of kin and remains unchanged after the amendment to the wrongful death statute in 2007, which allowed for damages for grief, sorrow and mental suffering. If such claims were really a part of loss of society, then there should have been a change in the IPI definition of society to reflect that change.

B. Arguing the Legislative History

Finally, counsel for plaintiffs should be prepared to argue the legislative history of Public Act 95–3 to show that the verdict forms should contain a separate line item for grief, sorrow, and mental suffering. As the floor debates show, the proponents clarified that the purpose of the bill was to allow the jury to consider grief, sorrow and mental suffering in formulating its award, and that those categories are now “a new area where a plaintiff can recover.”[3] The opponents of the bill acknowledged that grief, sorrow, and mental suffering would be a separate item in the jury instructions – indeed, that was one of their primary objections.[4] Further debate that same day suggests that grief, sorrow and mental suffering would be combined into a single, new line item rather than separate line items in the instructions.[5]

The bill’s opponents also recognized that those new elements would also be a separate line item in verdict forms, which for them was a significant detriment, as shown by the following statement from Representative Winters:

“The Sponsor has mentioned in debate that this is adding a new area of recovery in this state. It’s a new area of recovery in jury cases. There’s going to be a new line on the jury form that will – after you’ve looked at the other recovery that you can get for deprivation of love, care, comfort, protection, guidance, advice, and affection of the deceased, there will be a new line for grief and sorrow . . . And believe me, if there’s an empty line with a figure to be filled in, the juries will be filling it in.”[6]

These comments as to the jury verdict form were not contradicted or opposed by Representative Brosnahan, the bill’s sponsor, whom Representative Winters was addressing in part of his statement above. If the bill’s intent was not to create a new line item, one would think that the bill’s sponsor would clarify that rather than remaining silent when questioned on that point. This “exchange” between Representatives Winters and Brosnahan makes a strong case for legislative intent to have a separate line item on the verdict form, even though it is in the context of a practical argument as to why there should be no new line item.

The Senate debate followed the same pattern: an opponent of the bill stated that the verdict form would have a separate line item, followed by proponents who demur on the verdict-form issue.[7] Both sides in both legislative chambers therefore understood that the bill, if passed, would change verdict forms to include a separate line item for grief, sorrow, and mental suffering. There is some legislative history suggesting that grief, sorrow, and mental suffering might have their own, separate line items, although the current pattern jury instructions suggest that those three elements should be considered together. Plaintiff’s counsel will have to decide whether to take the safe option of asking for one line item to cover all three elements or asking for separate line items for each. The latter option may require counsel to indicate how grief, sorrow, and mental suffering are to be distinguished among them.

IV. Motions in Limine

In addition to fighting the claim for grief, sorrow and mental suffering as a separate line item of damages, defense counsel will likely attempt to limit those damages through motions in limine designed to bar testimony related to that claim. For example, in our case, defense counsel filed a motion in limine requesting that we be barred from introducing any evidence of grief, sorrow and mental suffering except through testimony of the next-of-kin. Plaintiff’s counsel should respond by showing how PA 95–3 clearly puts grief, sorrow, and mental suffering at issue in the case. There is nothing in the statute, legislative history, or pattern jury instructions which remotely suggests that only the next-of-kin is competent to testify on the issues of grief, sorrow, and mental suffering. While lay witnesses may not be able to testify with certitude that the claimant actually suffered grief, sorrow, and mental suffering as specific conditions, there is nothing in the law preventing their testifying as to facts from which the jury could infer grief, sorrow, and mental suffering. Ultimately, the judge in our case allowed our lay witnesses to provide testimony that evidenced our client’s grief, sorrow and mental suffering without using those actual words. The motion was denied in its entirety as to our expert witness, a retained psychiatrist.

V. Strategic Considerations in Presenting Evidence

As noted above, a judge may decide a motion in limine regarding grief, sorrow and mental suffering by preventing lay witnesses (other than the next-of-kin) from using the specific words “grief,” “sorrow,” and “mental suffering” but allowing their testimony as to facts relating to those elements, while allowing the claimant and any qualified expert witnesses to testifying as to the actual grief, sorrow, and mental suffering experienced by the next-of-kin. While there are several approaches to the content of testimony presented and the order of witnesses, one approach for plaintiffs’ counsel that may prove effective is leading with testimony from several friends, family members, and acquaintances of the claimant to provide several different glosses on the central issue of your client’s mental suffering. This can be followed by putting an expert psychiatrist on the stand to give context — the specific mental condition of grief, sorrow, and mental suffering — to the anecdotes and observations of the lay witnesses. Finally, once the jury has been fully prepared emotionally, testimony from the next-of-kin as to his or her personal grief and sorrow can prove particularly effective.

VI. Settlement Value

Another strategic issue raised by the amendment to the Wrongful Death Act is how much, if at all, the value of wrongful death claims are increased for settlement and trial purposes, and, relatedly, how much energy should be devoted in pursuing the “grief, sorrow, and mental suffering” aspect of the greater wrongful death claim. The value given to such claims by defense counsel and their clients is sure to vary from one insurance company to the next. Until sufficient precedent has been established through trials establishing that there is indeed a monetary value to these claims separate and apart from other aspects of wrongful death claims, practitioners should anticipate that insurance companies will not place a high value on the “grief, sorrow, and mental suffering” elements. Thus, for the time being, if plaintiffs’ counsels wish to make grief, sorrow and mental suffering claims a significant element of a wrongful death case, they need to be prepared to try the case and prove up that element of damages. Our experience suggests that this strategy is well worth pursuing. Ultimately, we received a jury verdict of over $600,000, which included an award of $100,000 for our client’s grief, sorrow and mental suffering. This was significantly higher than defendant’s last settlement offer of $450,000. This was the second highest recorded jury verdict ever for a wrongful death case in McHenry County, and suggests that future jury awards for grief, sorrow and mental suffering in less conservative counties (for example Cook County) could indeed be significant.

VII. Conclusion

While the Wrongful Death Act was amended more than four years ago to permit grief, sorrow, and mental suffering to be considered, there is still little guidance in the law as to the impact of the amendment on planning and conducting wrongful death trials. Practitioners should familiarize themselves with the amended jury instructions and be prepared to use legislative history and cases from other jurisdictions to argue for the optimal verdict form and for or against inevitable motions in limine, as appropriate. Solid preparation and effective argument can alleviate the grief and mental suffering that practitioners may encounter in litigating this new aspect of wrongful death claims.

Elizabeth Felt Wakeman (ewakeman@zrfmlaw.com) has tried many personal injury and medical malpractice cases to verdict and is a partner with Zukowski, Rogers, Flood & McArdle. Gregory J. Barry (gbarry@zrfmlaw.com) is an associate with Zukowski, Rogers, Flood & McArdle.

The Durham, North Carolina-based organization granted Haack her certificate on Jan. 11, 2012. According to its Web site, institutedfa.com, Haack is the only law firm paralegal working in McHenry County with a CDFA certificate.

The Institute for Divorce Financial Analysts is the premier national organization dedicated to the certification, education and promotion of the use of financial professionals in the divorce arena. Founded in 1993, IDFA provides specialized training to accounting, financial, and legal professionals in the field of pre-divorce financial planning. The organization has certified more than 5,000 professionals in the United States and Canada.

Certification requires a case study and examinations on the financial and legal issues of divorce, advanced financial issues of a divorce, and tax issues of a divorce. Altogether, the designation requires at least 60 hours of work.

According to the organization’s Web site, training focuses on:

• personal vs. marital property
• valuing and dividing property
• retirement assets and pensions
• spousal and child support
• splitting the house
• tax problems and solutions
• expert witness testimony
• tax law and financial issues affecting divorce.

Haack has worked for 19 years at Zukowski, Rogers, Flood & McArdle, the largest law firm in McHenry County, Illinois. She was interviewed and featured recently in a profile of the Zukowski, Rogers, Flood & McArdle divorce team that appeared in Leading Lawyers Magazine.

“Business Success Reflects Succession”

by Andrew Holstine

Building a successful business takes a combination of determination, hard work, and a little bit of luck – among other things.

For many small-business owners, the question of a succession plan can be difficult. One of the more common reasons is that business owners are not certain how to plan all the things they need to consider and potential solutions.

This makes it easier to postpone.

Although understandable, you are doing your family and your company a disservice by not taking a more long-term view. Developing a succession plan creates certainty and peace of mind. But it also can be a catalyst for business growth.

This type of planning frequently invigorates key employees, refocuses attention on long-term strategies and demonstrates your engagement in the ongoing best interests of your employees and customers.

There are three events – retirement, disability and death – that require a person to sell or transition their business. And each raises different issues. A one-size-fits-all solution is rare. However, there are answers once you take the time necessary to dig in and address the questions.

First, you need to establish clear goals. Who are you planning for? Yourself? Your spouse? Your employees? Your customers?

A business owner transitioning into retirement  might want to be involved in taking care of key relationships but prefer to ease away from daily responsibilities.

There also might be one or more key employees who are capable of running the business and taking care of the customers. In this instance, you might choose to allow that employee to make payments over time, adopt an employee stock ownership plan, or adopt an incentive or equity compensation plan, all depending on what is right for both you and your employees.

If your goal, instead, is to protect your spouse and family in the event of your untimely death, your plan likely will be more about easing the burden on your spouse and family. One way to do this is by funding a cash buyout with life insurance proceeds, a simple way to ensure financial security.

Avoid mistakes such as an unfunded buy/sell agreement, dated valuations, or misplaced reliance on a family member or an employee to take over the business.

Once you have identified your goals, it becomes a lot easier to find solutions. At this point, involve advisers such as your attorney, accountant, lender and/or financial planner. Experienced advisers help bring your goals into focus, quickly identifying options and ensuring that nothing is overlooked. They also help you implement a succession plan.

We all are familiar with the adage “too many cooks spoil the broth.” But trying to do all of this on your own can be a recipe for problems.

Once you create your plan, do not throw it in a drawer and forget it. At a minimum, an annual review lets you take stock of changes in your personal life, your financial goals, your employees and all other relevant factors that impact your plan.

After all, you get only one opportunity to exit your business. Consider the risks you took and time and effort you spent building your business, creating a winning succession strategy that brings certainty and security to both you and your family makes sense.

Andrew Holstine is an attorney with Zukowski, Rogers, Flood & McArdle in Crystal Lake focusing on estate planning, probate and business law. He can be reached at 815-459-2050.

A reprint of the article appears here.

For several years, ZRFM partners Richard G. Flood, David W. McArdle and David J. Loughnane have been rated among the top 5 percent of Illinois lawyers by Leading Lawyers Network, a division of the Chicago-based Law Bulletin Publishing Company. With 20 lawyers, Zukowski, Rogers, Flood & McArdle is the largest law firm in McHenry County, Illinois.

“I’ve had the chance to handle some pretty high-profile cases and a variety of cases [at ZRFM],” he said in an early November interview. “I’ve tried a wide variety of civil cases and even some divorce cases, and I think that helped my resume for becoming a judge.

“Once I gained enough trial experience, I thought the role of a judge would be a position I at least had the potential to be qualified for,” he explained, “and the temperament for.”

Costello says he sees serving as a judge as the pinnacle of the profession. He remembers how several judges helped him out when he was a new lawyer, and he remains grateful. Costello believes his new role will give him an excellent chance to give back to the legal community in Illinois.

During his legal career, Costello says many attorneys helped him professionally. Both they and some judges suggested to him from time to time that he would make a good judge.

Costello’s time at Zukowski, Rogers, Flood & McArdle accelerated the process of becoming an associate judge in the 22nd Judicial Circuit, he believes, because Costello was able to handle some large cases essentially on his own. Moving his practice to McHenry County also helped him become familiar with the local judges and with others in the community.

“Rich Flood especially has given me a lot of help and certainly some assistance in applying to be a judge,” Costello adds. He says he will miss the camaraderie of the office and the relationships he developed there.

“The biggest thing I’ll miss, at least as a trial lawyer, will probably be the competitive nature of trying a case with the hope of winning it for a client – sort of the thrill of victory,” Costello says. Over the course of his law career, he has tried more than 50 civil cases to a jury verdict and has reached a verdict more than 200 times in bench trials.

The Cook County Jury Verdict Reporter recognized Costello in 1995 for being among the top 10 attorneys in the county for achieving jury verdicts the previous year. Costello earned a B.A. in 1984 from Loras College and a J.D. in 1987 from the University of Notre Dame.

Zukowski, Rogers, Flood & McArdle is the largest law firm in McHenry County, Illinois. The firm focuses especially on appellate law, banking, business law and transactional matters, civil litigation, construction, divorce and family law, employment law, estate trust and tax, land use, local government, and personal injury.

Although a variety of adult businesses and adult entertainment establishments are permitted under such ordinances, as the First Amendment requires, they are granted only conditional use in industrial zoning areas. For more information, please link to the Northwest Herald article.

Smoron is corporate counsel to the McHenry County villages of Hebron and Johnsburg. He has served as special counsel to the village of West Dundee in Kane County and to other units of local government in Cook, Lake, Warren and Henry counties. For more of his professional credentials, please read Michael Smoron’s biography. Cooney also practices land use law, with a special focus on conservation easements. For more details about her legal practice, please view Melissa Cooney’s biography.

Zukowski, Rogers, Flood & McArdle, the largest law firm in McHenry County, Illinois, has an extensive practice in municipal law and local government law. Two of the firm’s attorneys co-authored the book Congratulations! You’ve Been Elected: Now What Do You Do? A Practical Guide to Local Government. The guide, published by the Illinois Municipal League, offers local public officials advice to help them “hit the ground running” and succeed in new leadership positions.

The Cutting Edge Program, which is open to all of the league’s municipal and county members, seeks to identify model programs in order to “encourage creative thinking to develop programs, policies or procedures that may be shared with municipalities in the county.”

The award will identify the programs, policies and procedures that successfully meet the needs or challenges of a community in a cost-effective way and that ultimately improve the quality of life for residents in the community. For details about the Nov. 17 event, please view the Lake County Municipal League’s event page.

The Lake County Municipal League includes 38 municipalities as well as 25 associate members, who are vendors for the municipalities. The law firm of Zukowski, Rogers, Flood & McArdle is an LCML associate member.

Schlossberg has practiced law for more than 20 years and has focused on local government law since 2003 for cost-conscious clients in McHenry and Lake counties. A graduate of the University of Michigan, Schlossberg also studied at the London School of Economics. She earned a juris doctor from Yale Law School.

With Richard G. Flood, she co-authored the book Congratulations! You’ve Been Elected: Now What Do You Do? A Practical Guide to Local Government. The guide, published by the Illinois Municipal League, offers local public officials advice to help them “hit the ground running” and succeed in new leadership positions. For Schlossberg’s professional credentials, please view Ruth Alderman Schlossberg’s biography.