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Pietrzyk v. Oak Lawn Pavilion, Inc.

Case Date: 04/26/2002
Court: 1st District Appellate
Docket No: 1-01-1608 Rel

FIFTH DIVISION
April 26, 2002



No. 1-01-1608


ERYKA PIETRZYK as Ex'x of the Estate
of Anthony F. Pietrzyk a/k/a Antoni
Pietrzyk, Deceased,

                        Plaintiff-Appellant,

v.

OAK LAWN PAVILION, INC.; ANASTASIA
LARGOSA; KOVILPARAMBIL
ANTHONY; and JOANNE HARLIN,

                         Defendants

(Oak Lawn Pavilion, Inc.,

                         Defendant-Appellee).

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) 		Appeal from the
Circuit Court of
Cook County.



No. 99 L 12419



Honorable
Michael J. Kelly,
Judge Presiding.


JUSTICE GREIMAN delivered the opinion of the court:


This appeal arises from the trial court's order granting in part and rejecting in part plaintiffEryka Pietrzyk's postjudgment motion, pursuant to section 3-602 of the Nursing Home Care Act(210 ILCS 45/3-602 (West 2000)), for attorney fees. For the reasons that follow, we affirm.

On October 28, 1996, the plaintiff, as executrix of the estate of Antoni Pietrzyk, filed amulticount claim against defendants Oak Lawn Pavilion, Inc. (Oak Lawn), Joanne Harlin,Kovilparambil Anthony, M.D., and Anastasia Largosa, M.D. Plaintiff engaged her attorneyspursuant to a one-third contingency fee arrangement. Count I of plaintiff's amended complaintsought recovery from Oak Lawn for a statutory violation of the Nursing Home Care Act (210ILCS 45/1-101 et seq. (West 1996)) for three months of disability, medical expenses, and painand suffering her husband endured after Oak Lawn's alleged neglect.(1) Pursuant to section 3-602of the Nursing Home Care Act, Pietrzyk also sought attorney fees and costs. Count II of theamended complaint sought recovery against Oak Lawn for common law negligence. Count IIIwas a wrongful death action, pursuant to the Wrongful Death Act (740 ILCS 180/1 (West 1996))that also sought recovery against Oak Lawn. That claim, however, was predicated upon commonlaw negligence and was not covered by the Nursing Home Care Act. Pietrzyk did not seekattorney fees and costs in either count II or III. The remaining counts were directed against theother defendants.

On January 11, 2000, the trial court granted Dr. Anthony's motion for summary judgment. Before trial, Pietrzyk voluntarily dismissed Dr. Largosa and settled with Harlin for $50,000. Plaintiff then opted to pursue recovery on counts I and III of her amended complaint against onlyOak Lawn (hereinafter defendant).

Because defendant admitted its liability, the only factual issue to be decided by the jurywas the amount of money to be awarded to the plaintiff for the proven recoverable compensatorydamages. On October 26, 2000, the jury returned the following itemized verdict:

"Past Medical Expenses:                     $ 26,530.55

General Expenses:                              $ 10,254.33

Disability:                                           $100,000.00

Pain and Suffering:                             $175,000.00

Loss of Society to ErykaPietrzyk:      $287,000.00

Loss of Society to Dianne Bender:     $ 50,000.00

Loss of Society to AliceBrackman:    $ 50,000.00

Total:                                                $698,784.85"

On November 21, 2000, Pietrzyk filed a motion to recover attorney fees, pursuant tosection 3-602 of the Nursing Home Care Act, in the amount of $232,928.29 -or one-third of thetotal verdict- as determined by her contingency fee agreement. Defendant filed a response inopposition to Pietrzyk's motion and argued that she was entitled to attorney fees only in theamount of one-third of the damages attributable to the claim brought under the Nursing HomeCare Act. For that argument, defendant noted that Wills v. De Kalb Area Retirement Center, 175Ill. App. 3d 833 (1988), held that wrongful death claims are not covered by the Nursing HomeCare Act.

In reply, Pietrzyk asserted that the issue was not whether the wrongful death action wascontemplated under the Nursing Home Care Act. Rather, plaintiff claimed that where thecovered and noncovered claims arose out of a common core of facts and legal theories, her claimfor attorney fees should not be reduced since the work involved in litigating the claims wasidentical. In support of her position, she cited precedent that established that where reasonableattorney fees are calculated on an "hours times rate basis," the claim is not reduced whennoncovered claims are involved if the claim arises under a common core of facts. See Berlak v.Villa Scalabrini Home for the Aged, Inc., 284 Ill. App. 3d 231, 238 (1996).

On March 30, 2001, the court entered a memorandum opinion and found that the plaintiffwas not entitled to attorney fees in an amount of one-third of the wrongful death verdict and wasonly entitled to the amount of one-third of the Nursing Home Care Act claim. Accordingly, thecourt allowed a fee of $100,510.18 ($175,000 pain and suffering + $100,000 disability +$26,530.55 medical expenses = $301,530.55