dissenting:
I dissent. This case involves a unique set of facts where both sides agree that the one-third contingent fee would be fair. The legal questian is how do we calculate that fee. The jury verdict awarded damages resulting from the occurrence in question and did not differentiate between the counts. Though some of the items of damages would not be recoverable if this lawsuit were just a survival action, I believe the focus should be on the work done on the entire case because there was bundled effort.
“In [certain] cases the plaintiffs claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the [trial] court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Hensley v. Eckerhart, 461 U.S. 424, 435, 76 L. Ed. 2d 40, 51-52, 103 S. Ct. 1933, 1940 (1983).
Berlak v. Villa Scalabrini Home for the Aged, 284 Ill. App. 3d 231, 238 (1996).
Because there exists such a common core of facts and related legal theories at the heart of this litigation, I believe the plaintiff should have received the full amount of fees. The elements necessary to prove common law negligence under the wrongful death count and to prove neglect under the Nursing Home Care Act have more than a passing similarity. Liability in a wrongful death count requires proof that the negligence caused injuries that led to the plaintiffs death. Under the Survival Act, neglect must be proven that was both in violation of the statute and the cause of the plaintiffs injuries. Here the claims share a majority of legal theories, discovery and evidence. Both seek a remedy for the wrongful acts of the defendant nursing home. The verdict form itself asked the jury to assess the damages suffered “as a proximate result of the occurrence in question.” These claims are linked. I believe the link is of a sufficient nature that the higher level of fees is warranted. To that end, I would reverse the trial court insofar as the order limited the amount of fees recoverable under these unique facts and circumstances.