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Schramer v. Tiger Athletic Association of Aurora9/7/2004
PUBLISHED
Plaintiff, Carol A. Schramer, appeals from an order of the circuit court of Kane County dismissing her complaint against defendant, Tiger Athletic Association of Aurora, for recovery of her husband's hospital, medical, and funeral expenses pursuant to section 6--21 of the Liquor Control Act of 1934 (235 ILCS 5/6--21 (West 2000)), popularly known as the Dramshop Act. At issue is whether the Dramshop Act provides for recovery of these expenses where the decedent perished as a result of his own intoxication. We conclude that it does, and we therefore reverse.
In her complaint, plaintiff alleged that on March 21, 2001, her husband, LaVern C. Schramer, Sr., became intoxicated at a tavern operated by defendant and was killed in a motor vehicle accident caused by his intoxication. In count I of the complaint, plaintiff alleged that as a result of the accident, she had become liable for LaVern, Sr.'s hospital, medical, and funeral expenses under section 15 of the Rights of Married Persons Act (750 ILCS 65/15 (West 2000)), commonly known as the Family Expense Act. The complaint originally included a second count that plaintiff filed along with LaVern C. Schramer, Jr., Michelle A. Schramer, and Charles S. Schramer. Count II, which sought recovery for the loss of support and society, was voluntarily dismissed and is not at issue in this appeal. Defendant filed its answer to count I, but subsequently moved to strike that count, relying in part on the recent decision of a divided panel of the Appellate Court, Third District, in Widmer v. Hoover, 342 Ill. App. 3d 280 (2003). Widmer squarely held that the surviving spouse of one who dies as a result of his or her own intoxication has no cause of action under the Dramshop Act for medical and funeral expenses. Plaintiff did not dispute that Widmer was directly on point and that its holding would be fatal to her claim. Plaintiff argued, however, that Widmer was in conflict with this court's decision in Muranyi v. Frisch-Auf, 308 Ill. App. 3d 213 (1999), and that the trial court was bound to follow the latter decision. Ruling that Widmer was controlling, the trial court granted the motion to strike and dismissed count I with prejudice. This appeal followed.
We initially note that defendant ostensibly moved to strike count I pursuant to section 2--619(a)(2) of the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(2) (West 2002)) on the basis that plaintiff lacked legal capacity to sue. A section 2--619 motion may be filed "within the time for pleading." 735 ILCS 5/2--619(a) (West 2002). As noted, defendant had already filed its answer when it moved to strike. Thus, to the extent the motion was brought under section 2--619, it was arguably untimely, although plaintiff raised no objection on this basis.
In actuality, though, the motion to strike had nothing to do with the subject of capacity, which, for purposes of section 2--619(a)(2), pertains to defenses such as incompetency, infancy, and the like. Phillips Construction Co. v. Muscarello, 42 Ill. App. 3d 151, 154 (1976); see also 59 Am. Jur. 2d Parties ยง28 (2002) ("Want of capacity to sue has reference * to legal disability, such as infancy, mental incompetency, and the like, which deprives a party of the right to come into court"). The thrust of defendant's argument was simply that the law did not recognize a cause of action based on the facts alleged. Failure to state a cause of action is not grounds for a motion under section 2--619, but is instead a basis for a motion under section 2--615 of the Code (735 ILCS 5/2--615 (West 2002)). Universal Underwriters Insurance Co. ex rel. Manley Ford, Inc. v. Long, 215 Ill. App. 3d 396, 399 (1991). However, misdesignation of a mot
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