next case or call of the day it is agenda second cases agenda number eleven number one one zero four zero six thomas vincent elanders is old and our strathmore happily counsel for the  police the court so my name is frank peril or connie and i represent the administrator of the in a state of the deceased nursing home resident were here before the court on a question of law a certified question whether common law punitive damages are available in an action brought by the representative of the estate of the deceased nursing home residents based on their survival act for willful and wanton violations of the nursing home care act which caused the injuries that ultimately claimed her life our main position is straightforward i believe that section three day ash six zero three of the never seen home care act provides eight remedy of common law punitive damages since the claim for punitive damages is statutorily based by the nursing home care act under this court's decision of national bank for it says north fork western the claim for punitive damages statutory it's a cause of action for will fall and one can file ations of the nursing home care act which caused marjorie vincent injuries the legislative history no i agree the legislature could have listed each and every remedy available in the app however it chose not to do sell but to give the the intent was to give the nursing home residents the broadest possible way of remedies permitted by law the nursing home care act was passed in  amongst concern and reports of degrading improper inadequate treatment of nursing home residents by nursing homes there was a recognition that nursing home residents are among the most fun to roll up our citizens and needed to be protected upon passage of the nursing home care act it became clear articulated public policy of the state that it would not be tolerated that nursing home residents be abused or neglected in order to do that the legislature passed sweeping reforms it gave nursing home residen one of which is to be free from abuse and neglect recognizing that government cannot be in a nursing home twenty four hours a day the legislature confer homes at first then the legislature passed the provision of trouble damages three times a actual three times compensatory damages in addition to attorney's fees the trouble damages provision has been repealed and it's now one time actual damages or compensatory damages the at did something unique it made nursing homes or  conduct of their employees including intentional contact that is something that was not part of common law another difference in the sack among many other acts is head nursing home residents were encouraged to press claims litigation for violation of day acts were viewed by the legislature as an engine of reform in addition the legislature gave the only department of public health broad statutory powers to regulate and force the nursing home care coming out of this nursing home care act was treatment we view section three to six zero three in this context in light of that history of the nursing home care act that the legislature gave the broadest possible arsenal to nursing home residents to enforce violations of the again one of the violations of the act was to be free from abuse and neglect this court in harris in the nineteen eighty six before the repeal of trouble damages had occasion to consider section three day at six o two which provided for trouble damages a form of pun relief and section three day at six o three which the court indicated provided a remedy of common law punitive damages the nursing home in th case was sued for both treble damages and common law punitive damages the nursing homes position was they at work and you get hit potentially with two forms of punitive damages tr damages under six o two and common law punitive damages broad v six zero three of the nursing home care act and that deprives us of due process because we are being found  the words under this ai would be turned into meaningless surplusage and we believe the legislature had the right to end its privative to give the nursing home resident every arsenal available under the  damages the survival way out will permit the representative of the estate to maintain that action unabated without that it would not a related to public safety and all sole provide for a form of punitive damages under those circumstances it would pass unabated to the estate in national bank expressly in the statute because it was removed you just yes a close a reading of that legislative debate it would be senator falwell and representative  shows that the intent was not to remove punitive damages or a punitive aspect from the nursing home care act the intent was merely told levels the playing field among providers who provide care and treatment health care providers to senator falwell said the reason we eliminating punitive damages is stay at nursing homes are experiencing increased insurance rates and at times are hiding a hard time getting insurance so what we want to do is told level the playing field make sense three times negligent three times actual damages in the nursing home care act for that which didn't conduct whereas in the hospital with that patient fell and was injured it would be one time the actual kind i'm compensatory damages so in theory by removing the trouble damages insurance rates should go down and there should be more availability of insurance he certainly was not talking about during the debate the senator said the old women nation of the mandatory provision that would be trouble damages in no way prevents a judge or jury from awarding punitive damages in what the senator in our opinion was talking about is the imputed by curious why ability of actions of nursing home staff to the nursing home itself under common however under the nursing home care at such and three days six all right even intentional conduct is imputed to the nursing home itself so we believe that senator falwell was say punitive damages are still alive and well when he indicated that the mandatory provision in no way prevents a judge or jury from awarding punitive damages in any amount if the actions of the nursing home  damages so we say that really has nothing to do with punitive damages it has everything to do with increased insurance rates and availability of the insurance back second and that bill was an attempt to also amend the wrongful death act for the court to award punitive damages in a death case and have that survive we believe it's equally as possible that tax statute was rejected by the general revising the act had the opportunity to change that if they saw fit to do so and the fact that they did not seems to confirm that our interpretation was correct would you comment on that yes we believe those so we believe that the two cases your honor was referring to have no relevance it's the national bank case bat provides the authority for the claim of punitive damages to recoverable under the survival act in national bank vs norfork in western railroad this court recognized only one very limited exception to that longstanding rule that one exception provides that where a statute specifically provides for recovery of punitive damages as part of a comprehensive regulatory scheme then punitive damages will be deemed to survive the death of the plaintiff the nursing home care act is not such a case your honour's there is no language in the nursing home care act quote specifically providing for the recovery of punitive damages and it must to do so in order for such damages what i think is most compelling your honour's is the fact that punitive recovery was provided in the act prior to one thousand nine hundred five and that provision was repealed when treble damages were repealed no alternative language was inserted into the act to specifically provide for the recovery of punitive damages it simply does not exist in the act what plant would have you do is try to construct by patching together different portions of the act try to construct a reading of the act that somehow allows for the recovery of punitive damages but remember under national bank simply allowing for recovery is not enough the atmosphere's civically provide for it such that you can unquestionably determine and that is the language that was used in national bank unquestionably determined that the legislature intended for the unit of damages to be recoverable i would contend that you can make no such determination by reading the very vague language that's contained in the other remedies provision of three dash six zero three after trouble damages were repealed under three days six zero two the only recovery available for a nursing home residents were actual damages costs and attorney's fees plaintiff what have you look at three dash six zero three the other remedies provision that allows a nursing home resident to recover any other remedy available at law and it gives the examples of declaratory or injunctive relief it's important to remember that what we're talking about today is a certified question asking about whether punitive damages are recoverable under the survival act so that the the bulk of plaintiff's arguments that punitive damages can generally be recovered under the nursing home care act really are to no avail if if the court decides that punitive damages are generally recoverable under the nursing home care act it must make a second step and that is to decide is it provided for so specifically under the act that under national bank that remedies survives the death of the resident and can be recovered under the survival act and i would contend it does not i'd like to address both both of those issues though because i think the second district got it right when it ruled that the nursing home care act does not provide for the recovery of punitive damages under the act but i would contend that even if this court disagrees with me that it can clearly conclude that even if it even if it finds there is a general right to recover punitive damages it cannot survive the death of a resident because it's not specifically set forth in the act music how do you distinguish the language in eads and i want your hon in first of all i would like to point out that i think that the guardian case has been misread by plaintiffs as standing for the proposition that this court has ruled that punitive damages are recoverable under the act and that they survive there certainly was no such holding by this court in in the darden case indicted dean all that was before the court was the issue of whether the repeal of troubled damages can be applied retroactively and this court went to great lengths to point out that all the repeal of trouble damages was effect a remedy available under the act and not a substantive right such that when it made a general comment at the damages number one it wasn't specifically holding that common law community damages are recoverable under the act but secondly that was mere dicta because the court had gone to great lengths to say that the remedies that are available are not at all important to a determination of whether retroactivity can be applied damages simply were not important to the court in that decision in that decision and as such that comment was pure dicta but i think if you read it closely you can see that what was being counted upon there is exactly what the court indicated in the in the areas case and that is under the nursing home care that you have a provision after treble damages that allows for actual damage and attorney's fees and separate and apart from that a plaintiff and bring a common law action or willful and wanton violations of the act if you look at the language that the court uses in here as it goes to great great lengths to talk about the statutory remedy and the common law remedy the harris the harris court indicated at page three sixty six in concluding that the plaintiff can recover either treble damages under the that common law punitive damages do not survive and cannot be recoverable under the surviving lacked the other remedies the only planet has the only the only thing that it can point to to try to argue that there's a specific provision for the recovery of punitive damages is three six o two and the other remedies provision simply is not specific enough to allow punitive damages to survive i would argue that it's not even clear under the under the other remedies provision that punitive damages are even recoverable i cited in my brief the case of dover says chand which was a fifth district decision in two thousand and two that was where the court was asked to determine under the aids confidentiality act whether punitive damages are recovered a very similar other remedies provision was contained in the in the aids confidentiality act it allowed for such other relief including an injunction as the court may deem itive damages where they are not specifically provided for that is exactly what is what is happening here in the nursing home care act i also point out in my brief bronner's that when the legislature specifically wants punitive damages to be a recoverable remedy they put it in the statute there are numerous examples of statutes that have been and acted by a legislature where they specifically provide for putative damages so there can be no doubt that unquestionably the legislature wanted conclusion that they are not recoverable under the act that in addition to the dover says chand decision but even if this court were to conclude that they somehow are recoverable under the act again they're not specifically provided vs allen the court was asked to decide whether punitive damages survive the death of a plaintive such that they could be recovered under the consumer fraud act under the consumer fraud ik there was an other remedies provision almost identical to the other remedies provision in the nursing home care act and the court indicated and specifically that said the court may or ward actual damages quote or any other relief which this court team's proper the court was asked to determine whether that allowed for punitive damages to be recoverable under a survival act and the court said it did not the court said that that other remedies language was not the type of specific statutory authority for punitive damages that punitive damages were available under that act in general did not translate to a ruling that they were available in a survival act for the simple fact that they were not specifically provided for in that statute the same analysis should be applied here where there is no specific authorization for travel damages i believe the legislative history unequivocally supports this position if you look at the legislative history you will see that it originally that the act originally provided for treble damages and is this hording here as pointed out they interpreted the legislative history to say that track that treble damages were put into the statute to encourage people to bring causes of action under the nursing home care act but then they repealed that provision and the legislative history indicates they repealed that provision because the tr punitive damage provision that was in specifically in the act was having the unintended consequence of driving up the cost of nursing home care because it was making it so that nursing homes had to expend extreme amounts of money on insurance coverage or could not get them at all so the legislature made the informed decision to take out the punitive damage provision such that that unintended consequence would not would not take effect they did not put back in any other type of punitive damages remedy then house bill i'm sorry then then the house bill was proposed to specifically house bill three three nine one was proposed if that provision was pacific enough to allow it to survive there would be no reason for the legislature to have for four legislators to have proposed house bill thirty three ninety one that they proposed that deal because they understood that per national day the language of this statute was not specific enough to a allow for punitive damages to be recovered or be to allow for it to survive the death of a resident that they all failed i would the legislature has already spoken on the issue they have decided that they do not that they do not feel that punitive damages need to be recoverable under the act because of the unintended consequences that it's having on insurance coverage and driving up the cost of nursing home care and secondly because they do not they do not intend to have punitive damages survive the death of a plaintiff this  been extensively revised very recently it's only a few months ago public act thirteen seventy two was enacted which provided extensive revisions to the nursing home care act that they made no changes to the damages provision they did not indicate or provide for punitive damages they did they did not alter the damages provisions at all what they did was refocus their enforcement mechanisms to increase the number of enforcement personnel to increase the amount of civil penalties to increase the amount of staffing that there are required at nursing homes and i would contend your honour's that the reason they are not focusing on wanting to put punitive damages into the statute is for the exact same reason they took tr damages out of the statute to begin with they don't want to drive up the cost of nursing home care by making insurance coverage an affordable unobtainable and they believe that they can achieve the same purpose of increasing the quality of care for nursing home residents by increasing civil enforcement remedies they do not affect the insurance coverage complete component of that and such that that will not drive up the cost that is what the legislative history enough nature that they would survive under the nursing home care act for that reason i would ask that this court affirmed the well reasoned decision of the second district and answer the certified question in the negative and i have just a procedural question for  could be an argument that the issue was not right however i think the certified question is framed such that the the question is where i leave before the court on whether those damages are even available such that the court such that the plaintiff would have been able to make that finding in the first in the first instance such that if there is no right to recover punitive damages under the nursing home care act because they do not survive then there'd be no reason for the pla to to seek leave to amend the complaint to ask for which is why i moved to strike a his reservation of rights because i felt there was no right to reserve because because the plaintiff had had passed away and her right to punitive damages right but it was moved to be striking the question i think is this given the history indian content that the legislature had in passing the nursing home mole the vulnerable among us society does the legislature have the right to pass a statute three days six or three which gives statutes merely gave the court discretionary authority to award any other relief permitted by all this statute in the nursing home care act is fundamentally different due to the fact that the legislature specifically intended to give residents the broadest away of remedies and relief under the law by maintaining and they option with respect to the legislative debate with respect to the treble damages provision it is clear in our mind that the legislatures these sponsors are that will fall well in ten hail by saying pays three times the actual damages or that hospital across the street drops staff patient and only pays one time actual damages band was the intent and removing the legislators to be speaking of insurance waits yet i'm the other here and talk about cases in which west and one percent of cases submitted to juries involve  within the statute is the statute the type of a statute that per tax our group of citizens that needs protection and any of that the nursing home care may act like the public utilities  national bank so we believe there is a forty in the nursing home care but not for punitive damages survive the section six zero six and six zero eight of the air in any  this court in harris acknowledged that three days six zero three provides for a remedy of punitive damages so it's not is therefore coming before this court without any foundation or history