Illinois Appellate Court rules that issues which are severable from pending arbitration may evade stay, within court discretion

On April 26, 2018, the Illinois Appellate Court (3rd District) held in Messmore v. Silvis Operations, LLC, et al., Appeal No. 3-17-0708, that the trial court did not abuse its discretion by declining to stay the severable issues of proximate cause and damages in a wrongful death case from issues pending in arbitration.

The underlying case involved an arbitration agreement which governed the Plaintiff’s Survival Act claims. The 90-year old plaintiff, Merton Messmore, as representative for his wife Mary’s estate, alleged Survival Act claims in his initial complaint against Silvis Operations, LLC, (which owned and operated assisted living facility, “Lighthouse”) and a nurse. Mr. Messmore specifically alleged Defendants were negligent in the care and supervision of Mary, who sustained two falls and a hematoma to her forehead during her residency, and died roughly three weeks following discharge. Defendants were successful in their motion to compel arbitration of Plaintiff’s Survival claims pursuant to the Lighthouse resident agreement.

Plaintiff subsequently filed an amended complaint adding a Wrongful Death claim, substantially restating the facts from the initial complaint, and adopting the Survival claims’ negligence allegations. Plaintiff then pursued discovery in the Wrongful Death claim, due to his advanced age. Defendants moved to stay the Wrongful Death proceedings pending resolution of the Survival claims’ arbitration; this was denied as the Wrongful Death claim was not subject to the arbitration agreement.

On appeal, the Court interpreted section 2(d) of the Uniform Arbitration Act (710 ILCS 5/2(d)(West 2016)) due to the unique situation where Plaintiff’s Survival claims were subject to arbitration, his Wrongful Death claim was not, and he based all claims on the same factual allegations. The question before the Court was whether Plaintiff’s Wrongful Death claim included issues subject to the Survival claims’ arbitration. The Court reasoned that because the amended complaint alleged the same negligent conduct caused Mary’s injuries and her death, the issue of negligence was not severable from the pending arbitration. The Court reasoned further that the issues of proximate cause and damages were severable from the Survival claims, as elements exclusive to the Wrongful Death claim. The Court considered the Plaintiff’s advanced age, and noted that staying all proceedings may unjustly prejudice Plaintiff. Accordingly, the Court found that the lower court did not abuse its discretion by declining to stay those severable issues in the wrongful death case.

Application in Practice

This case stands for the proposition that certain elements of Wrongful Death claims are severable from Survival Act claims to the extent that the issues are not identical to both claims (i.e., proximate cause and damages, as stated above). The decision whether or not to stay the Wrongful Death claim, in whole or in part, is within the trial court’s discretion. Long term care facilities may seek to distinguish Messmore, arguing that the decision was fact-specific and based on the Plaintiff’s advanced age. Long term care facilities may also advocate for a stay of Wrongful Death claims by citing policies favoring arbitration and the goal of judicial economy.

To obtain a copy of the Messmore v. Silvis Operations, LLC, et al., decision, click here. Please contact Candice Rudd by phone (312-673-7814) or e-mail (Candice.Rudd@ARandPartners.com) with any questions.