Illinois Court Clarifies Definition of “Next of Kin” Under Wrongful Death Act – Baez, etc. v. Rosenberg, etc.

The Illinois Appellate Court clarified definitions of “next of kin” according to the Illinois Wrongful Death Act in its ruling on Judith Baez, etc. v. Garrett Rosenberg, et al., No. 1-10-0090. The appeal in Baez dealt with the allocation of funds from the settlement resulting from a fatal car crash.

In 2008, Rafael Marquez was killed in a Chicago car crash. He was unmarried and survived by his parents. However, within five months of his death, his girlfriend, Jesenia Laureano, gave birth to a baby girl; DNA tests proved that Marquez was the father.

Both Laureano and Marquez’s parents brought wrongful death claims against the defendant driver, which were consolidated into one claim in a Cook County court. A $100,000 settlement was reached with the driver’s insurance company, which was the amount of the policy’s limits.

The $100,000 was distributed among both Marquez’s parents and his daughter as follows:

-$27,426 went to Marquez’s parents for the loss of their son;
-$27,427 went to Marquez’s daughter for the loss of her father;
-$13,041 went to Marquez’s parents for reimbursement for funeral expenses;
-$22,222 went to the parents’ attorneys’ fees; and
-$9,120 went to the baby’s attorneys’ fees.

Laureano, as representative of Marquez’s child, appealed the settlement distribution and argued that Marquez’s parents should not have received any portion of the settlement. Laureano’s appeal cited the Illinois Wrongful Death Act as evidence that her child was Marquez’s only “next of kin” and therefore was the only party eligible to benefit from the wrongful death settlement. Laureano sought to overrule the circuit court’s distribution for the parents’ survival claim, reimbursement of funeral expenses, and the parents’ attorneys’ fees.

Marquez’s parents’ argued that they were entitled to damages for loss of society and financial support because Marquez had supported his parents while he was still alive. The parents’ attorney attempted to use this argument to support their equal claim on the settlement money. However, the Illinois Appellate Court was not swayed by this argument when considering the facts in the wrongful death appeal.

The Illinois Appellate Court agreed with Laureano and held that all the money paid out to the parents and their attorney be returned to the rightful heir, i.e. Marquez’s baby daughter. The court supported its decision by referring to the Illinois Probate Act, which lays out who is considered “next of kin” of a deceased party:

If there is no surviving spouse but a descendant of the decedent: the entire estate to the decedent’s descendants (755 ILCS 5/2-1).

In this case, Marquez’s sole descendant was Laureano’s daughter, who is then entitled to the full amount of the wrongful death settlement. The appellate court amended the circuit court’s settlement distribution and ordered that all monies given to Marquez’s parents, including their attorney’s fees, be returned to Laureano’s daughter.

However, it is interesting to note that while the court ordered more money and the attorneys fees to be returned to the surviving heir, it did not amend the settlement distribution in regards to Laureano’s attorney fees. In Illinois, attorneys’ fees are typically based on a percentage of the settlement. Therefore, if Laureano’s portion of the settlement went up, it would follow that her attorney’s fees would also increase. Yet the Illinois appellate decision made no mention of amending the amount of Laureano’s attorney’s fees; the decision focused exclusively on the awards to the surviving heir.

For over 35 years, Kreisman Law Offices has been handling Illinois wrongful death cases for individuals and families in and around Chicago and Cook County, including Rosemont, Crestwood, Orland Park, Willowbrook, and Grayslake.

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