Illinois Wrongful Death Coverage Limited by Supreme Court

In a Chicago wrongful death action that asserted claims for underinsured motorist benefits, the Illinois Supreme Court interpreted whether the “per person” limits of liability or the “per occurrence” limits of liability applied to family members derivative claims. The Illinois Wrongful Death Act, 740 ILCS 180/2 states: “…every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person…” Illinois courts have defined “next of kin” as those blood relatives of the decedent who are in existence at the time of the decedent’s death who would take the decedent’s property if the decedent had died intestate. Provena v. St. Therese Medical Center, 334 Ill. App. 3d 581, 778 N.E. 2d 298 (2002).

The sole issue before the Illinois high court was whether a $100,00 “per person” limit in the policy or the $300,000 “per occurrence” limit applied to the claims of the decedent’s next of kin. The next of kin argued that their loss of society claims were separately compensable claims each subject to their own “per person” liability up to the maximum coverage of $300,000 as set forth in the “per occurrence” provisions in the policy. The tension in this case revolved around conflicting decisions of the appellate courts in Illinois in interpreting the “per person” and “per occurrence” language in insurance policies.

In the Farmer’s policy there was language in the “Limitations of Coverage” that limited coverage under the “per person” coverage that stated: “Included in this limit, but not as a separate claim or claims, are all consequential damages sustained by other persons, such as…loss of consortium, wrongful death..” The Illinois Supreme Court held this language “unambiguously restricts recovery for all damages including…survival act and wrongful death claims to the $100,000 “per person” limit in the underinsured motorist coverage provisions.” Farmers v. Marchwiany, 222 Ill. 2d 472, 856 N.E. 2d 439 (2006).

A careful reading of the “per person and “per occurrence” language in a policy is critical in determining whether the insurance company has unambiguously limited its coverage in wrongful death claims to the “per person” limit. If the policy language does not clearly restrict the derivative claims of the next of kin to the “per person” limits, then a claim for the larger “per occurrence” limits should be made in both uninsured and underinsured motorist claims.