Cornered: Scott Seaman on Wrongful-Death and Survival Actions

Wrongful death actions have unique procedural and evidentiary requirements and strategic considerations that distinguish them from bodily injury cases. The history of the IICLE handbook, Wrongful-Death and Survival Actions, stretches back over 30 years to a time when Scott Seamn, General Editor of the handbook and this month's guest, was searching for an authoritative guide on the topic. Wrongful-Death and Survival Actions 2026 Edition is available now at IICLE.com.

IICLE® is a 501(c)(3) not-for-profit based in Springfield, Illinois. We produce a wide range of practice guidance for Illinois attorneys and other legal professionals in all areas of law with the generous contributions of time and expertise from volunteer attorneys, judges, and other legal professionals.

Transcript

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Oh, you're an attorney? I have a friend who... I've been meaning to update my will, but I just bought a new house… I want to start a business… My brother was fired…
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You've been there. At a social function, meeting friends of friends. Word gets out that you're an attorney and suddenly your night is filled with partygoers asking you quote unquote simple legal questions. The questions are seldom in your area. Some of the stuff you haven't thought about since law school. You're being cornered out of court. In the Cornered Out of Court podcast from IICLE, you'll hear from fellow attorneys about the questions they get and the responses they give to escape being cornered.
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Wrongful death actions have unique procedural and evidentiary requirements and strategic considerations that distinguish them from bodily injury cases. The history of the IICLE handbook, Wrongful Death and Survival Actions, stretches back over 30 years to a time when our guest for this month's podcast was searching for an authoritative guide on the topic.
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I'm Scott Seaman. I'm a partner at Hinshaw and Culbertson and co-chair of our global insurance services practice group. I've been practicing now for over 38 years, which means I'm getting kind of old. I am a commercial litigator, trial and appellate lawyer, and clients generally turn to me and my team for counsel and representation and challenging and high stakes insurance coverage, bad faith, defense, and business matters.
00:01:37
I'm based in Chicago, but I have a nationwide practice. And I do a lot of speaking and writing on legal issues, but my two favorite works are a two-volume insurance law treatise called Allocation of Losses and Complex Insurance Coverage Claims. I know that's a catchy title. And that's now in its 13th edition. And of course, the Wrongful Death and Survival Actions Handbook that we do with ICLE.
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We have our all-new 8th edition coming out, and that's why I think you're hearing from me.
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Speaking of the Wrongful Death Handbook, can you tell us a little bit about why you decided to write the handbook?
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Sure. You know, believe it or not, at one time I was a young lawyer working at Skadenarps, and one of the areas I was involved in was defending product liability and professional liability cases.
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in Illinois and across the country. And in defending or prosecuting a wrongful death action, you need to know all of the things you would need to know in defending or prosecuting a bodily injury case and then a lot more. Wrongful death actions superimpose a myriad of additional pleading requirements, elements of proof,
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defenses and several procedural, evidentiary and strategic requirements. So for example, you might be dealing with issue of who's the proper party in a wrongful death case. You need to know a little bit about state law and laws
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of passing on property, those sorts of things that you may not be worried about in a bodily injury case. And as hard as I looked, I was never able to find any sort of comprehensive or very helpful guide dealing with wrongful death actions.
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And that's because there was not. So I took the matter into my own hands a little bit. And I said, let's design a book for practitioners that has the information both about the law and pointers and practice forms all in one place. And I approached ICL to do this because I had relied on ICL handbooks over the years.
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on a variety of subjects, evidence, civil procedure. And I always found the handbooks to be authoritative on the law, accurate, but also to be helpful in terms of providing practical advice, pointers and tips. And Ikel said, go ahead, let's put this together. I started being one of the chapter authors and the general editor. And if you look now,
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And we got some authors who were experienced practitioners, both representing plaintiffs and defendants. And we got some very good authors over the years. But what's happened is, if you look now, most of the chapters are written by me and my team, people like Bill Cook. And that's a function of a lot of lawyers retiring over the years or moving on with their practices.
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But the first book came out now, I think about 33 years ago. And so we've been going strong. So hopefully it's been providing some value to practitioners. And fortunately, Echoes decided to continuing publishing it. And I think this is now our 8th edition.
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I was hoping we could go a little bit more into the topics today. And can we start off by talking about what exactly is a wrongful death action?
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At common law, there was no cause of action for wrongful death. A person's claims abated with their death, leaving their surviving spouse, their next of kin uncompensated for the loss of their loved ones. And so although a wrongdoer faced liability from those that they injured, they were
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generally immune from civil liability for damages if the same conduct resulted in death. So you may remember stories about if there was a train crash in the old days, the conductors would go around and maybe look for injured people and throw them off the train because it was cheaper to kill them than it was to injure them. Well, the Illinois General Assembly remedied this anomaly in the law around 1853 by enacting the Illinois Wrongful Death Act.
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And in a wrongful death action, a decedent's personal representatives, in other words, their executor or their administrator, seek to recover for the injuries sustained not by the person who died, but by that person's decedent's spouse and next of kin from the death of the decedent that was wrongfully caused. And a personal representative is merely the nominal party for this action.
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They effectively file suit, but the beneficiary is the surviving spouse and the next of kin, who are the real parties of interest. There used to be a statutory cap on the amount of damages, which varied over time, but currently there is none and has not been for a while.
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And then the other part of the handbook is survival actions. Can you explain to us what survival actions are?
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A survival action is an action brought on behalf of the decedent's estate to recover for the personal injuries sustained by the decedent or to their property or person during their lifetime. So suits that are brought under Illinois survival statute seek recovery for damages suffered by the decedent before dying, while wrongful death actions seek recovery for the decedent's
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for damages by enumerated survivors because of the decedent's death. So to illustrate the difference, let's say we have a 30-year-old guy, we'll call him Pete Pedestrian, and he's struck by a car driven by a wily guy who consumed 20 beers, was driving 70 miles an hour, going the wrong way on the street. So in other words, liability is pretty clear. Pete is hospitalized and treated for a host of injuries.
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but ultimately dies from those injuries three months later. Recovery for the hospital bills and for other medical expenses for Pete's lost wages and Pete's pain and suffering during that three-month period he survived would be recovered or sought under the survival statute. A wrongful death action would afford potential recovery for Pete's wife, Winnie,
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for her loss of consortium and the loss of Pete's pecuniary contributions to the household that he would have earned and would have contributed during his expected life period. So that's the basic distinction between wrongful death and survival actions. And we have separate chapters for those. We have a separate chapter dealing with damages that are recovered in a wrongful death action. And so in the past,
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Illinois litigants had to pick or choose between bringing a wrongful death action and bringing a survival action. Today, wrongful death actions and survival statute claims may be brought together in the same action. So there's no picking or choosing or limitation of recovery. And then you have a bunch of sort of related issues like how do you treat family expenses?
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So we have a chapter that deals with the Illinois Family Expense Act. And we have chapters that deal with venue and jurisdictional issues, trial practice issues associated with wrongful death and survival cases. So it's a pretty comprehensive book. And as if that weren't enough, we have the final chapter, which is really an appendix of useful checklists
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what is the relevant periods of time, what is a current life expectancy chart, some forms for discovery and some court orders that apply concerning appointment of people, and of course dealing with issues such as what if the decedent is a minor. So you put all that together and you got a handbook.
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So as we've mentioned, the new edition will be available soon, the 8th edition. So have there been any significant changes in the law impacting wrongful death actions in Illinois?
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No, we just figured we'd write another book or another edition so we could sell something. But that the law is never static. And so all of the things that are happening in the world that apply to civil actions and bodily injury actions, most of them also apply to wrongful death and survival actions. So we update the law as it evolves. And there have been numerous cases involving wrongful death and survival actions. There's been changes to jurisdiction. But I have
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have to say for the first time in the last three decades or so, there has been a significant amendment to the Wrongful Death Act itself. And effective August of 2023, which is a little bit after our last edition came out, the Illinois General Assembly amended the Wrongful Death Act to allow for potential recovery of punitive damages in most wrongful death cases.
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punitive damages are still not recoverable in cases of medical malpractice, legal malpractice, or lawsuits against state and local governments and their employees and their capacity as such. But previously there was no recovery of punitive damages for wrongful death. Now there is. And I should add, obviously plaintiffs to recover wrongful death
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in a wrongful death case, punitive damages have to meet the normal requirements they would in any case, including satisfying the clear and convincing standard for liability in the different state and mostly federal constitutional protections that apply with respect to punitive damages award. But basically, these changes were advocated and celebrated by many of the plaintiff's lawyers
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And many defendants in contrast viewed this as a significant and unwarranted contribution to social inflation, which is the problem that we're facing in the American civil justice system of the cost of litigation being out of control for insurers, the claims cost, cost of defense, and cost of settlements and judgments skyrocketing, the enormous
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large verdicts that we're seeing, mega verdicts and that. And this is another area where allowing punitive damages coupled with other Illinois legislation of relatively recent vintage, such as the Illinois Biometric Information Act and the expansion, the recent expansion of jurisdiction over foreign corporations.
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in toxic tort matters. These are significant legislative creations that fuel social inflation and add to the rising litigation and insurance costs. And of course, when you're dealing with wrongful death actions, personal injury actions, people sustain injury, but wrongful death action involves really the ultimate tragedy, loss of life. And so the potential for large punitive damage awards is present now in a lot of cases.
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Thank you, Scott. Scott Seaman is the general editor of Wrongful Death and Survival Actions, 2026 edition, available now at iicle.com. If you have an idea for a topic you would like to hear discussed on the IICLE podcast, we welcome your suggestions by email. Our address is info, that's info at iicle.com.
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IICLE is a 501(c)(3) not-for-profit based in Springfield, Illinois. We produce a wide range of practice guidance for Illinois attorneys and other legal professionals in all areas of the law with the generous contributions of time and expertise from attorneys, judges, and other legal professionals. If you are interested in our many authorship and speaking opportunities, please give us a call at 217-787-2080 or visit the Contributor Resource Center at iicle.com/contributors.
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Thank you for joining us for another edition of Cornered Out of Court, brought to you by the Illinois Institute for Continuing Legal Education.