The Pulse February 2025 - Wrongful Death and Remarriage: Damages After Passafiume

Mark Benfield and Nick Limentato

In Passafiume v. Jurak, 2024 IL 129761, the Illinois Supreme Court addressed the scope of material services damages recoverable in wrongful death actions. The issue before the Court was whether a plaintiff’s remarriage should boundary the damages awarded for the loss of material services provided by the deceased spouse. This article provides an overview of material service damages and the holding in Passafiume.

The wrongful death statute in the relevant part provides:

Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person. In every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, including damages for grief, sorrow, and mental suffering, and punitive damages when applicable, to the surviving spouse and next of kin of such deceased person.

740 ILCS 180/2(a). Illinois courts have long held that “one of the elements of pecuniary loss is the personal service of deceased.” McFarlane v. Chicago City Ry. Co., 288 Ill. 476, 483 (1919). These damages include services that the spouse would have performed about the home and other intangibles “because they relate to his earning power and his disposition to continue to contribute to the welfare of his family.” Allendorf v. Elgin, J. & E. Ry. Co., 8 Ill. 2d 164, 179 (1956) abrogated by Richardson v. Chapman, 175 Ill. 2d 98 (1997). A plaintiff’s remarriage cannot be considered in mitigation of damages in a wrongful death case. Chicago & E.I.R. Co. v. Driscoll, 207 Ill. 9, 16 (1903); Watson v. Fischbach, 54 Ill. 2d 498, 501 (1973).

In Elliot, the Illinois Supreme Court expanded the relief available under the Wrongful Death Act to include loss of consortium damages that were previously excluded under that act —Elliott v. Willis, 92 Ill. 2d 530, 540 (1982). If a loss of consortium claim is brought in a wrongful death action, damages for loss of consortium can only be recovered up to the date of the plaintiff’s remarriage (the “Carter rule”). Carter v. Chicago & Illinois Midland Ry. Co., 130 Ill. App. 3d 431, 435 (4th Dist. 1985). Because loss of consortium damages are limited by the date of remarriage, the question of whether loss of material services are also limited by the date of remarriage has been subject to debate.

Prior to Passafiume, some Illinois appellate courts determined that damages for loss of material services should be limited to the period before the plaintiff’s remarriage and were part of a broader loss of consortium claim, which terminated upon remarriage: Dotson v. Sears, Roebuck & Co., 157 Ill. App. 3d 1036, 1045 (1st Dist. 1987); Dotson v. Sears, Roebuck & Co., 199 Ill. App. 3d 526, 530-531 (1st Dist. 1990); Pfeifer v. Canyon Const. Co., Inc., 253 Ill. App. 3d 1017, 1029-1030 (2d Dist. 1993) Passafiume overruled these decisions, holding that in a wrongful death action, loss of material services is a distinct claim that can be recovered independently of loss of consortium. Passafiume, 2024 IL 129761, ¶ 14.

At issue in Passafiume was “whether, in a claim brought pursuant to the Wrongful Death Act (Act) (740 ILCS 180/0.01 et seq. (West 2014)), a plaintiff may be awarded damages for loss of material services beyond the date of the plaintiff’s remarriage.” 2024 IL 129761, ¶ 1. The Plaintiff sued the Defendants for negligence in their treatment of his deceased wife, asserting wrongful death and survival actions. Id. ¶ 3. The Defendants argued that damages for loss of material services should be limited to the period before the Plaintiff’s remarriage. Id. ¶ 4. The Plaintiff countered that these damages are separate from loss of consortium and should not be limited. Id. ¶ 5. The trial court agreed with the Plaintiff, allowing evidence of loss of material services beyond remarriage. Id. ¶ 6. The jury awarded the plaintiff damages, including for loss of material services, which an economist calculated the value being $998,158 based upon a life expectancy of 78 years old and an hourly rate of $14.99. Id. ¶ 11. The total damages awarded were $1,697,531. Id. The Defendants appealed, arguing that material services are part of a loss of consortium claim and should be limited by remarriage. Id. ¶ 13. The appellate court affirmed the trial court’s ruling, concluding that remarriage does not limit damages for loss of material services. Id. ¶ 14. The Illinois Supreme Court subsequently affirmed the judgment of the appellate court. Id. ¶¶ 54-56.

Therefore, after Passafiume, remarriage does not limit the damages recoverable for the loss of material services in wrongful death actions. Id.