Nursing Home Motion 9 - Defendant's 615 Motion to Dismiss

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Motion to Dismiss and/or for Judgment on the Pleadings

Cunningham, Meyer & Vedrine, P.C., One of the Attorneys for Defendant, Marianjoy Rehabilitation Hospital & Clinics, Kevin J. Vedrine, Robert L. Larsen, Cunningham, Meyer & Vedrine, P.C., 2100 Manchester Road, Suite B-1050, Wheaton, Illinois 60187, 630/260-8600, Cook County Attorney No. 33445.

NOW COMES the Defendant, MARIANJOY REHABILITATION HOSPITAL & CLINICS, an Illinois not-for-profit corporation, (hereinafter “Marianjoy”), by and through its attorneys, CUNNINGHAM, MEYER & VEDRINE, P.C., and moves this Honorable Court for entry of an order dismissing or granting to this Defendant judgment on the pleadings with respect to Count I and Count IV of Plaintiffs Amended Complaint pursuant to 735 ILCS 5/2-615. In support thereof, Defendant states as follows:

1. Counts I and IV of Plaintiff's Amended Complaint at Law attempt to assert causes of action under the Nursing Home Care Act for wrongful death and survival damages respectively. [See copy of Plaintiff's Amended Complaint at Law with attachments attached hereto as Exhibit A.] Plaintiff's Amended Complaint at Law also attaches a copy of the InteRehab Agreement between Marianjoy and Rest Haven. As set forth in that InteRehab Agreement, Plaintiff's allegations against Marianjoy under the Nursing Home Care Act cannot stand.

2. The provision of the Nursing Home Care Act that provides for liability to residents for personal injuries is set forth in 210 ILCS 45/3-601. That provision specifically states “The owner and licensee are liable to a resident for any intentional or negligent act or omission of their agents or employees which injures the resident.” Id. This case unquestionably involves a claim of injury to a resident. As such, liability under the Nursing Home Care Act is strictly limited to the owner and licensee of the facility.

3. The term “licensee” is defined in 210 ILCS 45/1-115 as “The individual or entity licensed by the Department to operate the facility.” The term “owner” is defined in 210 ILCS 45/1 119 as:

“ ‘Owner” means the individual, partnership, corporation, association or other person who owns a facility. In the event a facility is operated by a person who leases the physical plant, which is owned by another person, ‘owner’ means the person who operates the facility, except that if the person who owns the physical plant is an affiliate of the person who operates the facility and has significant control over the day to day operations of the facility, the person who owns the physical plant shall incur jointly and severally with the owner all liabilities imposed on an owner under this Act.” 210 ILCS 45/1-119.

4. As alleged in paragraphs 2 through 4 of both Counts I and IV of Plaintiff's Amended Complaint, Rest Haven, rather than Marianjoy, was both the owner of the nursing care facility in question and the licensee holding the license for the facility. This is further set forth in Attachment 4 to the InteRehab Agreement at page 3, wherein the “contributions of Rest Haven” are set forth. Particular reference is made to paragraphs 1 and 3 of Attachment 4, and more specifically paragraph 3(h).

5. There is no provision within the Nursing Home Care Act, nor within any of the definitions set forth above, that creates liability under the Act for a joint venturer who is neither the licensee of the facility nor has any ownership interest in the facility itself, but merely has an agreement for the provision of certain services at a facility licensed and owned by another entity. To the extent that some injury was caused to the Plaintiff through the provision of services by Marianjoy under the InteRehab Agreement, Plaintiff can properly pursue a cause of action in negligence, but the Nursing Home Care Act does not provide a remedy against Marianjoy.

WHEREFORE, Defendant prays for entry of an order striking and dismissing Counts I and IV of Plaintiff's Amended Complaint at Law with prejudice, granting judgment on the pleadings to Marianjoy as to Counts I and IV of Plaintiff's Amended Complaint at Law, barring any future claims against Marianjoy under the Nursing Home Care Act, and/or for such other relief as the Court deems just and proper.

CUNNINGHAM, MEYER & VEDRINE, P.C.

By: <<signature>>

One of the Attorneys for Defendant,
Marianjoy Rehabilitation Hospital & Clinics
Kevin J. Vedrine
Robert L. Larsen
CUNNINGHAM, MEYER & VEDRINE, P.C.
2100 Manchester Road, Suite B-1050
Wheaton, Illinois 60187
630/260-8600
Cook County Attorney No. 33445

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