Opinion
No. 00 C 4151
February 9, 2001
MEMORANDUM ORDER
At this Court's request made at the time of the most recent status hearing in this action, counsel for First Amended Complaint ("FAC") defendant Jeanie Jay in her three capacities — as personal representative of her minor son Andrew Jay, as administrator of Andrew's minor's estate and as an individual — has faxed to this Court a copy of the January 3, 2001 order entered by Judge William Penn in the Circuit Court of the Twelfth Judicial Circuit, Will County, Illinois (see photocopy attached). This memorandum order is issued in light of the impact that Judge Penn's order has on the claims advanced in the FAC.
As Judge Penn's order reflects, he decided not only (1) that no liens may attach to Andrew's compensation from his dog bite injury claim but also (2) that the inability on the part of the plaintiff in this action to assert any such lien stems from the operation of the Illinois anti-subrogation law applicable to minors. That second facet of Judge Penn's ruling decision has issue-preclusive effects in this action as a matter of defensive issue preclusion, so that Andrew's mother's Jeanie Jay must be and is dismissed from the FAC in two of the three capacities in which she has been sued (both as Andrew's personal representative and as administrator of his minor's estate)
What appears to remain potentially viable, however, is the claim asserted here against Jeanie Jay in her individual capacity under a breach of contract approach (in that respect see one of the cases cited by Judge Penn in support of his decision, Klem v. Mann, 279 Ill. App.3d 735, 740-41, 665 N.E.2d 514, 518-19 (1st Dist. 1996)). Both sides' counsel should come prepared to discuss the posture of this action in those terms at the next status hearing on February 20, 2001.
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT WILL COUNTY, STATE OF ILLINOIS
Estate of ANDREW N. JAY, a Minor. Case No. 00 P. 121
ORDER
NOW COMES ON FOR HEARING the Petitioner, ANDREW N. JAY's Motion to Reconsider, due notice being given, the court having heard arguments of counsel, and being fully advised in the premises;
IT IS THEREFORE ORDERED:
The court has reconsidered its prior ruling in this matter and finds that since ANDREW N. JAY is a minor, no liens may attach to his compensation from his dog bite injury claim as the anti-subrogation law of Illinois applies and therefore there is no right to a lien on the minor's injury claim proceeds by his mother's Health Insurance plan, the Administrative Committee, as Administrator of Wal-Mart Store, Inc.'s Associates Health and Welfare Plan. Estate of Aimone vs. tale o Illinois Health Benefit Plan, 248 Ill. App.3d 882 (3rd Dist, 1993) and Klem vs. Mann, 279 Ill. App.3d 735 (1st Dist. 1996).