Friday, August 27, 2010

Common Law Remedies vs. Statutory Remedies

A nursing home is owed money from a former resident. The nursing home sues the former resident for breach of an oral contract and quantum meruit. The former resident invokes the Nursing Home Care Act which requires a written contract between all nursing homes and their residents. The trial court dismisses Count I for failure to have a written contract pursuant to the Act. The trial court dismisses Count II because it refuses to imply a contract where an actual written contract is required by law.

Sounds a lot like the Home Repair and Remodeling Act issues that have been going around lately, doesn't it? The First District Appellate Court thought so too. They relied on K. Miller Construction v. McGinnis case to reverse the trial court.

As I have discussed in previous posts (here and here), the McGinnis court held that the contractor's violation of the Home Repair and Remodeling Act did not preclude it from pursuing equitable recovery pursuant to quantum meruit. The court reasoned that allowing the contractor to recover via quantum meruit was not specifically disallowed by the Act and would not violate the public policy expressed by the Act.

Similarly, the Court in Carlton at the Lake, Inc. v. Barber, 01-09-0039 (May 20, 2010), allowed the nursing home to recover from its former resident under quantum meruit. The Court found that common law rights and remedies are in full force and effect unless repealed by the legislature. For that to happen, the legislative intent to abrogate the common law must be clearly and plainly expressed, and such intent will not be presumed from ambiguous or doubtful language. After a review of the Nursing Home Care Act, the Court could find no clear legislative intent to limit nursing homes' ability to recover under common law theories.

Also, allowing a common law recovery would not defeat the purposes of the Nursing Home Care Act, which was enacted "amid the concern over reports of inadequate, improper, and degrading treatment of patients in nursing homes," none of which were alleged in this case.

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