author: JUSTICE McCULLOUGH

text:
    McLEAN COUNTY DISPOSAL, INC., Petitioner, v. THE COUNTY OF McLEAN et al., Respondents.
    Fourth District
    No. 4—90—0111
    Opinion filed January 17, 1991.

      Immel, Zelle, Ogren, McClain & Costello, of Springfield (Thomas J. Immel, of counsel), for petitioner.
    Neil E Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Michelle D. Jordan, Matthew J. Dunn, and Patricia E. Collins, Assistant Attorneys General, of Chicago, of counsel), for respondent Pollution Control Board.
    Eric T. Ruud, Assistant State’s Attorney, of Bloomington, for respondent County of McLean.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

McLean County Disposal, Inc. (MCD), appeals an order of the Illinois Pollution Control Board (PCB) affirming the McLean County board’s denial of siting approval for a proposed regional landfill. (McLean County Disposal, Inc. v. County of McLean (Nov. 15, 1989), _Ill. PCB Op. 89-108.) Initially, MCD argues the decision of the county board was contrary to the manifest weight of the evidence. MCD urges this court to find the PCB erred in reviewing the county board’s decision under the “accepted” manifest weight standard. MCD also argues its siting application should be deemed approved by operation of law.

We affirm.

Although the record in the instant case is lengthy, only the evidence necessary for an understanding of the instant decision will be summarized. Initially, a brief review of the statutory framework will be presented as a context for the issues alleged. Section 39.2(a) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1989, ch. HDk, par. 1039.2(a)) sets forth criteria which must be met prior to the approval of a siting application for a regional landfill. Only those criteria applicable to nonhazardous waste apply here. Section 39.2(a) states:

“The county board of the county or the governing body of the municipality, as determined by paragraph (c) of Section 39 of this Act, shall approve or disapprove the request for local siting approval for each regional pollution control facility which is subject to such review. An applicant for local siting approval shall submit sufficient details describing the proposed facility to demonstrate compliance, and local siting approval shall be granted only if the proposed facility meets the following criteria:
(i) the facility is necessáry to accommodate the waste needs of the area it is intended to serve;
(ii) the facility is so designed, located and proposed to be operated that the public health, safety and welfare will be protected;
(ill) the facility is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property;
(iv) the facility is located outside the boundary of the 100 year flood plain or the site is flood-proofed;
(v) the plan of operations for the facility is designed to minimize the danger to the surrounding area from fire, spills, or other operational accidents;
(vi) the traffic patterns to or from the facility are so designed as to minimize the impact on existing traffic flows.” (Ill. Rev. Stat. 1989, ch. IIIV2, pars. 1039.2(a)(i) through (vi).)

The county is required to consider evidence on each of the statutory criteria. (Ill. Rev. Stat. 1989, ch. llV-k, par. 1039.2.) Petitioner has the burden of proof.

Each of the statutory criteria must be met before the local board may approve a siting application. (Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill. App. 3d 1023, 530 N.E.2d 682; Waste Management of Illinois, Inc. v. Pollution Control Board (1987), 160 Ill. App. 3d 434, 513 N.E.2d 592.) The legislature has charged the county board, rather than the PCB, with resolving the technical issues such as public health ramifications of the landfill’s design. (Kane County Defenders, Inc. v. Pollution Control Board (1985), 139 Ill. App. 3d 588, 487 N.E.2d 743.) The broad delegation of authority to the local board reflects the legislative understanding that the local board hearing, which provides the only opportunity for public comment on the site, is the most critical stage of the process. E & E Hauling, Inc. v. Pollution Control Board (1985), 107 Ill. 2d 33, 481 N.E.2d 664; Kane County, 139 Ill. App. 3d 588, 487 N.E.2d 743.

The PCB may review the factual findings of the local board and consider whether those findings are against the manifest weight of the evidence. It is not to reweigh the evidence or make new credibility determinations. (Waste Management, 160 Ill. App. 3d 434, 513 N.E.2d 592.) In City of Rockford v. Pollution Control Board (1984), 125 Ill. App. 3d 384, 465 N.E.2d 996, the court discussed the function of the PCB in reviewing local officials’ siting decisions and held the PCB properly found a siting decision was contrary to the manifest weight of the evidence.

“We first address the standard of review applicable to the proceedings before the city council. *** This court has held that the manifest weight of the evidence standard applies to the review of site location decisions made by a governing body under section 39.2 of the Environmental Protection Act. Ill. Rev. Stat. 1983, ch. IIIV2, par. 1039.2. ***
Our conclusion is supported by an analysis of the Environmental Protection Act (Ill. Rev. Stat. 1983, ch. lll1^, par. 1001 et seq.). Section 3(a) of the Act defines ‘Agency’ as the Environmental Protection Agency and defines ‘Board’ as the Pollution Control Board. (Ill. Rev. Stat. 1983, ch. Illxh, par. 1003(a), (c).) Section 39 deals with the issuance of permits. (Ill. Rev. Stat. 1983, ch. 111V2, par. 1039.) Section 39(a) allows the Board to require permits and requires the agency to issue permits upon proof that the applicant has complied with the Act. (Ill. Rev. Stat. 1983, ch. IIIV2, par. 1039(a).) Section 39(c) requires the applicant who proposes to develop or construct a new regional pollution control facility first to obtain proof that the local government entity has approved the site location in accordance with section 39.2 of the act. (Ill. Rev. Stat. 1983, ch. IIIV2, pars. 1039(c), 1039.2.) Section 39.2, at issue in this case, requires the local governing entity to approve site location suitability considering six listed criteria which together have the effect of making a uniform set of zoning standards for the location of regional pollution control facilities throughout the State. Houlihan & Flynn, The Siting of Sanitary Landfills and Other Waste Management Facilities — The Legislature Acts, 70 Ill. B.J. 434, 437 (1982).
Comparing section 39(a), granting the agency general authority to issue permits, with section 39.2, granting the local governmental entity authority to approve site location, it appears that the local governmental entity has been given the adjudicatory function otherwise located in the agency itself. The fact that the statute contains parallel review procedures in section 40 (Ill. Rev. Stat. 1983, ch. IIIV2, par. 1040, providing for Board review of Agency denial of permits), and in section 40.1 (Ill. Rev. Stat. 1983, ch. lll1^, par. 1040.1, providing for Board review of local governmental entity denial of site location approval), reinforces the view that in site location decisions the local governmental entity performs an adjudicatory function. Adjudicatory decisions made by an administrative agency are reviewed under a manifest weight of the evidence standard. [Citations.]
II
We conclude that the PCB properly found Rockford’s siting decision to be against the manifest weight of the evidence.” (City of Rockford, 125 Ill. App. 3d at 386-88, 465 N.E.2d at 998-99.)

(See also Waste Management of Illinois v. Illinois Pollution Control Board (1987), 160 Ill. App. 3d 434, 513 N.E.2d 592.) Several courts have rejected the argument that the PCB should apply a more critical standard of review to local board decisions or conduct a de novo hearing. See Waste Management, 160 Ill. App. 3d 434, 513 N.E.2d 592 (and the cases cited therein).

Similarly, the role of the reviewing court on administrative review is limited to a determination of whether the administrative agency’s decision was contrary to the manifest weight of the evidence. (A.R.F. Landfill, Inc. v. Pollution Control Board (1988), 174 Ill. App. 3d 82, 90-91, 528 N.E.2d 390, 395-96; McHenry County Landfill, Inc. v. Environmental Protection Agency (1987), 154 Ill. App. 3d 89, 506 N.E.2d 372; City of Rockford, 125 Ill. App. 3d 384, 465 N.E.2d 996.) When expert testimony is presented on both sides of an issue, the reviewing court may not redetermine which expert is more believable or decide controverted facts. (City of Rockford v. County of Winnebago (1989), 186 Ill. App. 3d 303, 542 N.E.2d 423.) In Rockford, the appellate court rejected an argument that the PCB’s decision was contrary to the manifest weight of the evidence because the appellant’s witnesses were “more expert.” (Rockford, 186 Ill. App. 3d at 315, 542 N.E.2d at 432.) With this framework in mind, we consider the cause before us.

I. PROCEDURAL HISTORY

On January 22, 1987, MCD delivered an application for site approval for a new regional pollution control facility (landfill) to the McLean County clerk’s office. The proposed site for the landfill was near Randolph in McLean County. The clerk did not accept the application for filing on January 22, 1987, but retained it to determine whether it complied with the McLean County resolution concerning such applications and landfills.

On February 19, 1987, McLean County’s Pollution Control Site Hearing Committee (Committee) directed the county clerk to reject the application. On February 20, 1987, the county clerk notified MCD of the rejection of the application and the reasons for the action. MCD submitted a supplement to its application and, on March 17, 1987, the county clerk filed the application.

Public hearings on the siting application occurred during June and July 1987. On August 18, 1987, the county board, by resolution, rejected MCD’s application for landfill site approval. The county board acted upon the recommendation of the Committee, after the hearings and after receipt of written comments from the members of the public. The Committee recommended denial of the siting application because it felt MCD had not established the facility would provide adequate protection for water wells in the area and the entrance would cause a safety hazard. The Committee also found MCD had not located the facility so as to minimize incompatibility with the surrounding area. Finally, the Committee found the traffic patterns to and from the facility were not so designed as to minimize the impact on existing traffic flow.

MCD appealed the county board’s decision to the PCB. On January 21, 1988, the PCB vacated the county board’s decision. (McLean County Disposal, Inc. v. County of McLean (1988), 84 Ill. PCB Op. 85-201.) The PCB ruled MCD’s application had been granted by operation of law, due to the county’s failure to rule on the application within 180 days of the date it was delivered to McLean County. (Ill. Rev. Stat. 1987, ch. llV-k, par. 1039.2(e).) The PCB did not reach the merits of the county board’s decision.

The county board filed a petition for reconsideration of the PCB’s decision. While that petition was pending, a nonprofit corporation known as Citizens Against the Randolph Landfill, Inc. (CARL), filed a petition to intervene. The PCB denied reconsideration and denied CARL’s petition to intervene. (McLean County Disposal, Inc. v. County of McLean (1988), 86 Ill. PCB Op. 87-13.) The county board and CARL appealed.

On December 28, 1988, this court found the PCB correctly denied CARL’s petition to intervene, and affirmed the PCB’s decision as to CARL. However, we found MCD waived compliance with section 39.2(e) of the Act. (Ill. Rev. Stat. 1985, ch. llV-k, par. 1039.2(e).) This court reversed the PCB’s decision as it pertained to the siting application and directed it to consider the merits of MCD’s petition for review. Citizens Against the Randolph Landfill (CARL) v. Pollution Control Board (1988), 178 Ill. App. 3d 686, 533 N.E.2d 401 (hereinafter CARL).

On May 25, 1989, the PCB determined the cause must be remanded to the county board. The PCB determined the lack of a written transcript of the public hearings at the time the county board reached its initial decision raised a question of fundamental fairness. It found tape-recordings are inherently unacceptable as the sole means of reviewing the record of a public hearing. Therefore, the PCB remanded the matter to the county board for reconsideration of the siting application after it had an opportunity to review written transcripts of the public hearing. McLean County Disposal, Inc. v. County of McLean (May 25, 1989),_Ill. PCB Op. 89-108.

A written transcript of the public hearing and the common law record were placed on file at the county clerk’s office. The county board members were notified of the availability of the transcript. On June 20, 1989, the county board again denied the siting application, noted it had complied with the PCB’s May 25, 1989, order, and incorporated the written findings and recommendations of its Committee as part of its decision.

MCD filed a petition for review of this decision. On July 13, 1989, the PCB redocketed the cause. On November 15, 1989, the PCB affirmed the county board’s denial of site approval. McLean County Disposal, Inc. v. County of McLean (Nov. 15, 1989),_. Ill. PCB Op. 89-108.

After reviewing the record and the parties’ arguments, the PCB found a conflict in expert testimony existed as to the safety of the proposed site. It, therefore, determined the county board’s decision was not contrary to the manifest weight of the evidence. However, the PCB determined the county board’s decision about the compatibility of the landfill with the surrounding area was contrary to the manifest weight of the evidence. Finally, the PCB determined a conflict of expert testimony existed as to the impact of the site .on existing traffic flow and the lack of an entrance plan. The PCB noted both of these could serve as a basis to find petitioner had not established that the facility was so designed as to minimize the impact on existing traffic flows. McLean County Disposal, Inc. v. County of McLean (Nov. 15, 1989),_Ill. PCB Op. 89-108, slip op. at 8.

After denial of its motion for reconsideration, MCD filed the instant appeal. The county board has not appealed the PCB’s determination that its findings with regard to incompatibility with the surrounding area are contrary to the manifest weight of the evidence. Therefore, only the PCB’s affirmance of the county board’s decision regarding section 39.2(a)(ii) (public health and safety) and section 39.2(a)(vi) (traffic flow) of the Act is at issue. Ill. Rev. Stat. 1989, ch. llN/a, pars. 1039.2(a)(ii), (a)(vi).

II. THE PUBLIC HEARINGS

MCD presented three witnesses who testified about the safety of the proposed site. Charles Clark, the engineer who designed the proposed landfill, was hired after the site was purchased by MCD. Clark had been formerly employed by the Illinois Environmental Protection Agency (Illinois EPA) and had designed several landfills. He assisted in determining the suitability of the proposed site for a landfill. Clark testified he was present when the boring logs were done at the site.

Clark stated that based upon the information gained from the soil samples, the proposed site was suitable for a landfill, met the Illinois EPA requirements for permeability of- soil, and would not pose a threat to the water wells located in the subdivision three-fourths of a mile south of the site. Clark admitted that sand lenses and partings were present in the boring logs, and sand will conduct water more quickly that other types of soil. He also stated that other sand partings and lenses would probably be found during excavation of the site. However, Clark stated the sand was not part of an aquifer or continuous water-bearing strata. Clark determined this because of the type of sand which was encountered at the relative depth of several boring locations. Clark admitted that continuous sand formations are geologically common in the area. Clark noted that any sand encountered in excavating the site would be dug out and the area filled in with a compacted clay liner. The sides of the landfill would be lined as necessary.

Clark’s plan did not include a clay liner for the bottom of the proposed site because he believed the bottom would be solid glacial till. Clark admitted that of the 24 borings done on the property, only 10 were done on the proposed landfill site. Clark stated that if the 10 borings did not accurately reflect the bottom of the proposed site, the sand would be excavated out of the area and the area lined. Only one boring was made in the center of the proposed site. The boring did not extend to the bottom of the site. Clark stated he did not wish to drill a hole through the bottom of the proposed site as this could cause a permeability problem.

Clark stated leachate would develop at the site. However, he did not propose a leachate-collection system. He believed all leachate would be contained within the site. Clark determined the southern one-half of the property purchased by MCD was not suitable for a landfill. Boring logs in this area showed continuous sand and gravel deposits. However, Clark believed the northern and southern halves of the property could be separated. Clark admitted the development of methane was inevitable at the landfill. However, he stated monitoring equipment was not planned. If methane became a problem, gas wells or flares could be installed at a later date.

Michael Rapps, the engineer who prepared the hydrogeological report for MCD, testified that based upon the nature of the area and the ground water in the area, if the ground water became contaminated and flowed straight south to the subdivision, well water would not become contaminated for 180 years. Rapps stated he excluded factors which would retard ground water flow in reaching his conclusion. Rapps also stated the dilution factor would render any leachate leaving the facility virtually unnoticeable. Rapps stated sound engineering practice would not be followed by drilling boring logs through the bottom of the proposed landfill site.

Rapps stated the southern portion of the property purchased by MOD was not suitable for a landfill due to extensive sand and gravel and a thick water-bearing zone near the surface. However, he believed the proposed site, the northern portion of the property, did not contain any continuous permeable strata. During cross-examination, Rapps admitted that it was possible for permeable sand seams within the site to be connected with sand to the south of the site. Water from the site could flow south.

Robert Hahn, the engineer who conducted the soil permeability testing, also testified. Hahn stated the soil at the proposed site was predominantly glacial till. Any sand found was discontinuous. Hahn testified the soil permeability tests met the requirements of the Illinois EPA.

Dr. Robert Morse, an engineer with a doctorate in engineering and geology, testified the borings conducted by MOD were inadequate. Due to the lack of borings, the safety of the site was questionable as not enough was known. Morse stated that geologically, the proposed site was unsuitable for landfill. Morse stated the bottom was “especially treacherous” because major sand seams could be located just below the bottom of the proposed site. Morse believed it was likely that continuous water-bearing strata were present, any liner would not be totally impermeable, and the ground water resources of the surrounding area were not adequately protected. Morse also stated leachate would be inevitable and a leachate-collection system was necessary.

Clark prepared a traffic study for the written application. He testified that initially approximately 55 trucks per day would reach the landfill. Clark stated that the existing access road could handle the increased traffic. Clark also testified the entrance would be designed safely and a sufficient line of sight would be provided. Clark based his safety information on a 30-mile-per-hour speed limit.

Herbert Beckermeier, the county highway commissioner, testified the speed limit on the access road was 55 miles per hour. The 30-mile-per-hour sign seen by Clark was an advisory sign. The increased truck traffic would' cause the road to deteriorate. The road would need resurfacing and widening to accommodate the garbage trucks. Beckermeier stated that if the site was approved, the road commission and MCD could work together to prepare a safe entrance.

Lieutenant David Kistner, a traffic safety expert, testified that the line of sight was inadequate at the proposed entrance for safe stopping, the trucks pulling out slowly would cause a safety hazard, and the S-curve near the entrance would decrease visibility. Kistner testified about specific stopping distances, with alert drivers, and dry roads.

In rebuttal, Clark testified MCD had acquired additional land and could design a safe entrance.

III. ANALYSIS

Initially, MCD argues the PCB should have examined the expert testimony under a more stringent standard because the county board does not have the expertise to resolve technical issues. MCD urges this court to reverse the PCB because it did not sufficiently review the expert testimony.

This argument has been addressed and rejected on numerous occasions. The county board has been charged by the legislature with the primary responsibility for deciding the public health ramifications of landfill siting. The PCB may not reweigh expert testimony to decide which expert is more qualified and more believable. (Waste Management, 160 Ill. App. 3d 434, 513 N.E.2d 592.) Similarly, this court may not reweigh the evidence to decide which expert is more believable. Rockford, 186 Ill. App. 3d 303, 542 N.E.2d 423.

Since the expert testimony in this case conflicted as to the safety of the designed site and as to its impact on traffic flow, we will not reweigh the evidence in assessing the PCB’s determination. The agency’s determination is not contrary to the manifest weight of the evidence.

MCD argues the county board had an obligation to follow the recommendation of its technical advisor. As authority, MCD cites a PCB case, Watts Trucking Service, Inc. v. City of Rock Island (1984), 57 Ill. PCB Op. 57-23, which was affirmed by the appellate court in an unpublished order (Braet v. Pollution Control Board (1985), 134 Ill. App. 3d 1161 (unpublished order under Supreme Court Rule 23)). An order pursuant to Supreme Court Rule 23 has no precedential value. (107 Ill. 2d R. 23.) Additionally, the facts of that case are markedly different from those presented here. In Watts, the city hired a consulting firm which offered testimony. Here, the county board’s ad-visor did not testify. We know of no authority for the proposition that one is bound by an advisor’s recommendation.

Finally, MCD argues site approval should be granted as a matter of law. The Act requires the county board to approve or deny a siting application within 180 days of the filing of the request. If a timely decision is not made, the siting application is deemed approved as a matter of law. (Ill. Rev. Stat. 1989, ch. HV-k, par. 1039.2(e).) McLean County accepted MCD’s application for filing on March 17, 1987. On August 18, 1987, the county board denied the application. The 180-day period would have expired on September 13,1987.

MCD argues the application must be deemed approved as a matter of law because the August 18, 1987, action was void and the June 20, 1989, decision was not within the 180-day period. This is a variation of the argument MCD raised in CARL (178 Ill. App. 3d 686, 533 N.E.2d 401). In that case, this court found MCD waived enforcement of the 180-day period stated in section 39.2(e) of the Act. (Ill. Rev. Stat. 1985, ch. lllVa, par. 1039.2(e).) The holding and reasoning of CARL apply here. Additionally, the final action necessary under section 39.2(e) of the Act is the initial order of the county board which approves or denies the siting application. See McHenry County Landfill, 154 Ill. App. 3d 89, 506 N.E.2d 372.

For the above reasons, we affirm the Pollution Control Board.

Affirmed.

SPITZ and KNECHT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    MONTY OSBORNE, Plaintiff-Appellant, v. STEVE KELLY, d/b/a American Sport and Taxidermy, Defendant-Appellee.
    Fourth District
    No. 4—90—0336
    Opinion filed January 17, 1991.

      Thomas R. Appleton, of Morse, Giganti & Appleton, of Springfield, for appellant.
    Sorling, Northrop, Hanna, Cullen & Cochran, of Springfield (John A. Kauerauf, of counsel), for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiff appeals from an order of the circuit court granting summary judgment for defendant in plaintiff’s suit for retaliatory discharge. The court granted summary judgment based on the res judicata effect of an earlier administrative decision denying plaintiff unemployment benefits. That administrative decision was affirmed by the circuit court on administrative review. Plaintiff contends that res judicata was improperly attached to the administrative decision. We affirm.

Resolution of this case requires an inquiry into the facts and circumstances of the prior administrative action. Plaintiff’s employment by defendant ended in December 1988. Plaintiff filed for unemployment benefits with the Department of Employment Security, asserting that he was discharged for threatening to file a workers’ compensation claim. After a contested hearing, the Board of Review found that plaintiff voluntarily left work without good cause attributable to defendant. Based thereon, the Board concluded that plaintiff was disqualified for unemployment benefits pursuant to section 601(A) of the Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 431(A)). This decision was affirmed by the circuit court pursuant to the provisions of the Administrative Review Law (Ill. Rev. Stat. 1989, ch. 110, par. 3 — 101 et seq.). (Osborne v. American Sport & Taxidermy (April 2, 1990, Cir. Ct. Cass Co.), No. 89 — MR—23.) No further appeal was taken.

During the pendency of the administrative action, plaintiff filed this lawsuit against his former employer, alleging he was discharged for threatening to file a workers’ compensation claim and seeking damages for retaliatory discharge.

Plaintiff contends that res judicata cannot attach to the decision of the Board of Review to bar litigation of his lawsuit for retaliatory discharge because (1) a decision of an administrative agency is not res judicata in a subsequent civil action, and (2) even if res judicata can apply in a proper case, it is inapplicable here because a cause of action for unemployment benefits is not identical to a cause of action for retaliatory discharge.

Res judicata is a judicial doctrine comprised of two corollary branches known as estoppel by judgment and estoppel by verdict, sometimes called collateral estoppel. Both operate to preclude relitigation of claims or issues previously decided. Estoppel by judgment, however, has a broader, preclusive effect and will bar an identical cause of action between the same parties or their privies as to all matters and defenses that were raised or could have been raised in the original action. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251-52, 461 N.E.2d 959, 961-62.) Causes of action are not distinguishable for purposes of res judicata based on differences in the claims for relief. (Morris v. Union Oil Co. (1981), 96 Ill. App. 3d 148, 157, 421 N.E.2d 278, 285.) The test is whether the causes of action are based on a common core of operative facts and whether the evidence necessary to sustain the second verdict would have sustained the first. Redfern v. Sullivan (1982), 111 Ill. App. 3d 372, 376, 444 N.E.2d 205, 208.

The narrower branch, estoppel by verdict or collateral estoppel, will bar relitigation of identical issues in a subsequent action between the same parties on a different claim or cause of action, provided the issues were actually litigated, determined, and necessary to the verdict in the initial action. (Spiller v. Continental Tube Co. (1983), 95 Ill. 2d 423, 432, 447 N.E.2d 834, 838.) The policies underlying both branches include certainty and finality to litigation, consistency of judgments, and judicial economy by disposition of all claims and grounds for relief in a single action. These policies are as relevant to the administrative process as they are to the judicial.

It is well established that res judicata can preclude litigation of causes of action or issues already addressed in an administrative proceeding that is judicial in nature. (Hughey v. Industrial Comm’n (1979), 76 Ill. 2d 577, 394 N.E.2d 1164; Pedigo v. Johnson (1985), 130 Ill. App. 3d 392, 474 N.E.2d 430; Godare v. Sterling Steel Casting Co. (1981), 103 Ill. App. 3d 46, 430 N.E.2d 620; Martinez v. Admiral Maintenance Service (1987), 157 Ill. App. 3d 682, 510 N.E.2d 1122.) The proceedings underlying the decision of the Board of Review are judicial in nature. Procedures for adjudicating disputed unemployment claims are mandated by statute and provide for judicial review. (Ill. Rev. Stat. 1989, ch. 48, pars. 450 through 530.) The administrative determination of plaintiff’s claim was reached after a sufficiently extensive and adversarial hearing, conducted under oath and on the record. Where res judicata applies, it attaches to the administrative decision, rather than to the decision of the circuit court when judicial review is sought, as long as there is no discrepancy between the two. Edwards v. City of Quincy (1984), 124 Ill. App. 3d 1004,1012-13, 464 N.E.2d 1125,1131-32.

Plaintiff cites Godare for the proposition that the Board of Review’s finding of ineligibility for unemployment benefits does not apply to bar a private cause of action for retaliatory discharge. However, plaintiff misconstrues the holding in Godare. That court did not find that res judicata principles were inapplicable to administrative proceedings. Rather, the court found neither branch of res judicata applied because the issues in plaintiff’s action for compensation benefits were not identical to the issues in the subsequent suit for pension benefits. Godare, 103 Ill. App. 3d at 51-52, 430 N.E.2d at 623-24.

To determine whether either branch of res judicata is applicable to bar plaintiff’s current cause of action for retaliatory discharge, we first look to see what issues, facts, and evidence were presented in the administrative action denying plaintiff unemployment compensation benefits and what decisions the Board of Review made. The Board found plaintiff ineligible for unemployment benefits because the evidence failed to support plaintiff’s contention that he was discharged; instead, the Board found that plaintiff had voluntarily left his employment without good cause attributable to the employer. (See Ill. Rev. Stat. 1989, ch. 48, par. 431(A) (limiting eligibility for benefits).) In comparing the issues in the unemployment benefits claim with plaintiff’s retaliatory discharge claim, we note that the current action requires plaintiff, as a threshold matter, to prove employer discharge as an element of his retaliatory discharge action. (Hinthorn v. Roland’s of Bloomington, Inc. (1988), 119 Ill. 2d 526, 529, 519 N.E.2d 909, 911.) This is identical to the issue of plaintiff’s employment termination present before the Board of Review and decided adversely to him. Because, in both proceedings, the parties and the issue are identical, the agency adjudication has conclusively established plaintiff’s employment termination to be voluntary, and estoppel by verdict bars plaintiff from relitigating this issue. Because plaintiff cannot now prove the necessary element of discharge, his retaliatory discharge action fails. No genuine issue of material fact remains, and defendant is entitled to summary judgment as a matter of law.

Because estoppel by verdict disposes of plaintiff’s claim for retaliatory discharge, we need not comment on whether estoppel by judgment, as discussed in Martinez v. Admiral Maintenance Service (1987), 157 Ill. App. 3d 682, 510 N.E.2d 1122, would also be applicable to the administrative decision.

We affirm the judgment of the circuit court of Cass County granting summary judgment for defendant.

Affirmed.

GREEN and KNECHT, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
    JOHN CALCAGNO et al., Plaintiffs-Appellants, v. PERSONALCARE HEALTH MANAGEMENT, INC., Defendant-Appellee.-JOHN CALCAGNO et al., Plaintiffs-Appellees, v. PERSONALCARE HEALTH MANAGEMENT, INC., Defendant-Appellant.
    Fourth District
    Nos. 4—90—0128, 4—90—0147 cons.
    Opinion filed January 17, 1991.

      Robert G. Kirchner, of Lerner & Kirchner, of Champaign, for John Calcagno and Lois Calcagno.
    Joseph D. Pavia, of Kirtley-Pavia-Marsh, of Urbana, for Personaleare Health Management, Inc.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

The principal issue in these consolidated appeals is whether an insurer who pays a claim prior to being sued for payment thereof may nevertheless be held liable for damages stemming from its unreasonable delay in settling the claim. We answer this question in the affirmative.

During the relevant time period, an infant daughter of plaintiffs John and Lois Calcagno required an apnea monitor. The Calcagnos are members of a health maintenance organization (HMO) of which defendant Personaleare Health Management, Inc. (Personaleare), is the administrator. In February 1989, the Calcagnos sought reimbursement for the apnea monitor, but Personalcare refused to pay their claim. The Calcagnos referred the matter to their attorney, who wrote Personalcare on March 7, 1989, requesting payment for the apnea monitor. Personalcare responded by stating that it denied coverage because the event which necessitated the apnea monitor took place before the effective date of coverage for the Calcagnos’ daughter under Personalcare’s HMO plan.

On June 13, 1989, Personalcare apparently agreed to have its grievance committee reconsider the Calcagnos’ claim in an expedited manner. A hearing was held before the committee on July 18, 1989. In a letter dated August 7, 1989, one member of the grievance committee indicated that on the basis of the information presented at the hearing, he supported the Calcagnos’ position, but felt that ideally, the hearing should be reconvened for the purpose of allowing the Calcagnos’ attorney to question the physician who placed the Calcagnos’ daughter on an apnea monitor.

On August 9, 1989, Personalcare advised the Calcagnos' attorney that it would pay their claim in full. The claim was paid on August 14, 1989.

On August 29, 1989, the Calcagnos requested an additional payment from Personalcare in the amount of $792, which represented the attorney fees they incurred in pursuing their claim for reimbursement for the apnea monitor. Not having received the additional amount requested, the Calcagnos filed a small claims complaint against Personalcare on September 7, 1989. The complaint requested damages in the amount of $2,500. The stated basis for this claim was Personalcare’s “vexatious and unreasonable delay” in reimbursing the Calcagnos for the cost of the apnea monitor, “in violation of the Defendant’s obligation to deal with Plaintiffs in good faith, and fairly, and/or its obligations under Section [155] of the Insurance Code [(Ill. Rev. Stat. 1989, ch. 73, par. 767)].”

In a bill of particulars filed October 16, 1989, the Calcagnos stated the following are the components of the damages requested in their small claims complaint: (1) attorney fees, costs, and expenses, including costs of copies of medical records, incurred in obtaining payment for the apnea monitor; (2) wages they lost and travel expenses they incurred as a result of attending the hearing before Personalcare’s grievance committee; (3) “[p]rejudgment, statutory, interest on the Plaintiffs’ claim for damages, as well as interest on the loss of use of funds, which were paid by the Plaintiffs to Pulmocare Medical Supply, Inc. [supplier of the apnea monitor], in order to avoid the institution of any collection action against [the Calcagnos]”; (4) damages for emotional distress, “including embarrassment, and harassment” suffered as a result of Personalcare’s initial denial of the claim; (5) “[statutory damages under Section [155] of the Insurance Code [(Ill. Rev. Stat. 1987, ch. 73, par. 767)]”; (6) punitive damages; and (7) attorney fees, costs, and expenses incurred in the present action. The Calcagnos stated that some of these damages are being sought in the alternative.

On October 20, 1989, Personalcare filed a section 2 — 619 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) motion to dismiss the Calcagnos’ complaint with prejudice. Personalcare stated that there had been no vexatious and unreasonable delay in payment of the Calcagnos’ claim, and that the damages the Calcagnos sought could not be awarded under either common law or statutory cause of action theories. Personalcare subsequently agreed that the question of whether there had been an unreasonable and vexatious delay in payment could not be adjudicated in proceedings on a motion to dismiss, and the Calcagnos filed a response to the remaining portions of Personalcare’s motion to dismiss on November 2,1989.

In a memorandum opinion and order filed January 26, 1990, the circuit court held that the Calcagnos can maintain a statutory action against Personalcare pursuant to section 155 of the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1987, ch. 73, par. 767) based on Personalcare’s alleged vexatious and unreasonable delay in paying the Calcagnos’ claim, notwithstanding the fact that Personalcare has already paid the entire amount of the claim. The court further held that the Calcagnos may recover as damages in such an action the attorney fees incurred in obtaining payment of the claim, even though it was not necessary for them to file suit in order to obtain payment. However, the court held that the Calcagnos cannot maintain a common law tort or contract action against Personalcare based on alleged vexatious and unreasonable delay in payment of their claim and dismissed with prejudice the Calcagnos’ complaint to the extent it was premised on these theories. The circuit court included a Rule 304(a) (107 Ill. 2d R. 304(a)) finding in its order with regard to the portion of the Calcagnos’ complaint which it dismissed.

On February 8, 1990, the Calcagnos filed a notice of appeal from the portion of the circuit court order which held that they cannot sue Personalcare on common law tort or contract theories, docketed No. 4 — 90—0128. In the meantime, Personalcare filed a motion for a Rule 308 (107 Ill. 2d R. 308) finding permitting it to file in this court an application for leave to appeal the portion of the circuit court order which held that the Calcagnos can maintain an action against Personalcare pursuant to section 155 of the Code, and the circuit court allowed this motion on February 14, 1990. The court stated the issue involved in Personalcare’s Rule 308 application for leave to appeal is:

“Does Section 155 of the Illinois Insurance Code (Ill. Rev. Stats., Chapter 73, para. 767) authorize a cause of action for unreasonable delay in settling an insurance claim for the purpose of recovering attorney’s fees and other costs incurred in settling the claim if all policy benefits are paid in full by the insurer before litigation commences[?]”

On March 15, 1990, this court allowed Personalcare’s Rule 308 application for leave to appeal, docketed No. 4 — 90—0147. This court subsequently consolidated the Calcagnos’ and Personalcare’s appeals and granted Personalcare leave to have its appeal treated as a cross-appeal.

Central to the contentions of both the Calcagnos and Personalcare is section 155 of the Code, which presently reads in pertinent part:

“Attorney fees. (1) In any action by or against a company wherein there is in issue the liability of a company on a policy or policies of insurance or the amount of the loss payable thereunder, or for an unreasonable delay in settling a claim, and it appears to the court that such action or delay is vexatious and unreasonable, the court may allow as part of the taxable costs in the action reasonable attorney fees, other costs, plus an amount not to exceed any one of the following amounts:
(a) 25% of the amount which the court or jury finds such party is entitled to recover against the company, exclusive of all costs;
(b) $25,000;
(c) the excess of the amount which the court or jury finds such party is entitled to recover, exclusive of costs, over the amount, if any, which the company offered to pay in settlement of the claim prior to the action.” Ill. Rev. Stat. 1987, ch. 73, pars. 767(l)(a), (l)(b), (l)(c).

In arguing that the circuit court erred in dismissing their complaint to the extent it requests damages based on common law theories, the Calcagnos assert that in every contract between an insurer and insured, there is an implied covenant of good faith and fair dealing. They further contend that an action for breach of this covenant sounds both in tort and in contract, and that both tort and breach of contract damages ordinarily are recoverable if a breach of this covenant is established. The Calcagnos maintain that the damages which they allegedly suffered as a result of Personalcare’s failure to timely pay their claim are recoverable even under the more limited rules of liability which apply in breach of contract actions, since these damages were contemplated or could have been contemplated by the parties as resulting from Personalcare’s failure to timely pay amounts due the Calcagnos under Personalcare’s HMO plan.

The Calcagnos note that section 155 of the Code is generally applicable to HMOs. (Ill. Rev. Stat. 1987, ch. HV-k, par. 1409A.) Acknowledging that there is a split of authority on the question, the Calcagnos contend that section 155 does not preempt a common law action against an insurer for breach of the implied covenant of good faith and fair dealing. The Calcagnos suggest that since proof of different facts may be necessary to establish a breach of the implied covenant of good faith and fair dealing as opposed to establishing eligibility for the additional costs listed in section 155, and the damages or recoverable additional costs may be different and distinct, a plaintiff should not be precluded from pursuing both section 155 and common law remedies to the extent that the damages or additional costs sought are not duplicitous.

Personalcare contends that section 155 of the Code preempts all common law actions seeking damages based on alleged delay in payment of amounts due under insurance policies, including emotional distress actions. Personalcare also asserts that awarding the Calcagnos damages consisting of the attorney fees they incurred in pursuing their claim for benefits under Personalcare’s HMO plan would violate the “American Rule,” which generally precludes attorney fee awards to prevailing parties in litigation. Personalcare further contends that by virtue of the supreme court’s decision in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 435 N.E.2d 443, the Calcagnos may not recover in a tort action (1) lost wages which resulted from their visits to Personalcare in regard to obtaining reimbursement for the apnea monitor, or (2) interest on money which they paid to the supplier of the apnea monitor before Personalcare paid their claim. Personalcare asserts that under the Moorman doctrine, these are economic losses which may not be recovered in a tort action. Personalcare further argues there is nothing in the HMO certificate under which the Calcagnos claimed benefits, or in section 155, which would provide a basis for the Calcagnos recovering these alleged damages on either a contractual or statutory theory. Personalcare also maintains that because the damages which the Calcagnos seek are not liquidated, they have no statutory entitlement to prejudgment interest on any recovery they might obtain from Personalcare.

With respect to whether the Calcagnos are entitled to additional costs under section 155 of the Code, Personalcare first asserts that by-virtue of the following statement in their brief, the Calcagnos have conceded that they may not recover under section 155 the attorney fees incurred in obtaining payment from Personalcare of the cost of the apnea monitor:

“[Attorneys’ fees are generally not recoverable absent statute or contract. Paragraph 767 [section 155] of the Insurance Code, provides for the recovery of attorneys’ fees after litigation has been filed. Only under the common law could expenses and attorneys’ fees be recoverable either as a part of the jury’s assessment of punitive damages, or in conjunction with an assessment of consequential damages.”

On the merits of this question, Personalcare contends an award of attorney fees when all insurance benefits claimed have been paid would be contrary to the legislative intent in enacting section 155. Personalcare argues that the statutory phrase “it appears to the court that such action or delay is vexatious and unreasonable” (emphasis added), and the phrase “part of the taxable costs in the action” (emphasis added) support the view that section 155 permits awards of only those attorney fees incurred in litigation relating to benefits claimed to be due under insurance policies and does not permit attorney fee awards where all amounts claimed under an insurance policy were paid prior to the beginning of litigation. (Ill. Rev. Stat. 1987, ch. 73, par. 767(1).) Personalcare further states that under the facts of this case, there could be no section 155 award of additional costs in addition to “reasonable attorney fees” and “other costs,” since, under subsections 1(a) and 1(c) of section 155, the amount of any such additional costs cannot exceed 25% of the amount of unpaid benefits the insured is entitled to recover from the insurer, or the excess of the amount of unpaid benefits (exclusive of costs) recovered over the insurer’s highest prelitigation settlement offer. Personalcare also suggests that the “unreasonable delay in settling a claim” language in section 155(1) (Ill. Rev. Stat. 1987, ch. 73, par. 767(1)) refers only to the situation where an insurer delays processing a claim by simply “sitting on it,” without either allowing it or denying it. Personalcare asserts the interpretation of section 155 for which the Calcagnos contend (1) would destroy the incentive insurers have to settle claims prior to litigation and thus avoid imposition of section 155 penalties, and (2) could result in the courts becoming involved in every disputed insurance claim.

In their reply brief, the Calcagnos suggest that in determining the applicability of the “American Rule” to requests for reimbursement for attorney fees on common law theories, the crucial question should be whether or not the fees were incurred in litigation. The Calcagnos concede their claims for lost wages and compensation for loss of use of money are economic losses which, under the Moorman doctrine, cannot be recovered in a tort action. However, they assert that they are entitled to recover these damages from Personalcare on a contract theory. With regard to their claim for emotional distress damages, the Calcagnos state they are not asserting a claim for the intentional infliction of emotional distress, but rather seek compensation for emotional distress as an ordinary element of their damages.

The Calcagnos respond to Personalcare’s arguments concerning their claim for additional costs under section 155 by stating that making entitlement to such additional costs dependent on filing suit prior to payment of disputed insurance claims would discourage negotiation and encourage the filing of suit with respect to disputed claims as soon as the “threshold point of unreasonable and vexatious delay is met.” The Calcagnos acknowledge section 155 does not expressly provide for recovery of prelitigation attorney fees. However, they argue that the term “other costs” contained in that section is sufficiently broad to encompass prelitigation attorney fees, which they contend should be recoverable under section 155 in order to put insureds in as good a position as they would have occupied had their claims been timely paid. The Calcagnos suggest (1) in complicated cases, a contrary holding would effectively preclude prelitigation negotiations with the assistance of an attorney, and (2) in cases where an insurer’s liability is clear, adoption of their position will discourage insurers from waiting to pay benefits until insureds say they have consulted with an attorney or are going to consult with an attorney and file suit.

As a preliminary matter, we hold that the statement in the Calcagnos’ opening brief concerning awards of prelitigation attorney fees under section 155 did not amount to a concession that such fees may not be awarded under that section. The Calcagnos’ opening brief dealt with their appeal of that part of the circuit court’s order which held they cannot maintain common law causes of action against Personalcare. Therefore, the Calcagnos were under no duty to present argument in their opening brief as to the amounts which are recoverable under section 155. In their reply brief, which serves as their principal brief with respect to Personalcare’s cross-appeal involving the question of the amounts recoverable under section 155, the Calcagnos argue that prelitigation attorney fees are recoverable under section 155. For these reasons, we cannot say that the Calcagnos have conceded this point.

In determining the meaning of section 155 of the Code as it relates to the issues presented by these appeals, we must initially consider the statutory language itself. If the legislative intent can be ascertained from the plain and ordinary meaning of the statutory language, we must give effect to that intent without resorting to other aids in construction. Henry v. St. John’s Hospital (1990), 138 Ill. 2d 533.

Section 155 contains no language which specifically provides for awards of compensatory damages. The only amounts which may be recovered by virtue of section 155 are the various specified items which the court may “allow as part of the taxable costs in the action.” The term “costs” ordinarily refers to the expenses of prosecuting or defending an action, excluding attorney fees. (Black’s Law Dictionary 312 (5th ed. 1979).) It is, of course, the legislature’s prerogative to expand the meaning of this term to include other items. However, statutes permitting recovery of costs, being in derogation of the common law, must be strictly construed (Commissioners of Lincoln Park v. Schmidt (1946), 395 Ill. 316, 69 N.E.2d 869), and litigants should not be permitted to recover as costs items other than those specified in the statute authorizing such awards.

The costs which may be awarded under section 155 include no elements of compensatory damages. Indeed, subsections 1(a) and 1(c) of the statute indicate that there must be an award of compensatory damages other than the costs-described in the statute in order for there to be a basis for calculating the amount of some of the costs which are recoverable. Therefore, the plain language of section 155 establishes that it does not preempt any common law action for recovery of compensatory damages based on unreasonable delay in settlement of an insurance claim. However, the legislature, by including in section 155 a provision which allows the recovery, “as costs,” of fairly large sums which are essentially penal in nature, indicated an intent to preempt the field of punitive damage awards based on unreasonable delay in settlement of insurance claims. (Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App. 3d 631, 407 N.E.2d 156; see also Lynch v. Mid-America Fire & Marine Insurance Co. (1981), 94 Ill. App. 3d 21, 418 N.E.2d 421.) To the extent that other decisions interpreting section 155 of the Code (e.g., Combs v. Insurance Co. (1986), 146 Ill. App. 3d 957, 497 N.E.2d 503; Trautman v. Knights of Columbus (1984), 121 Ill. App. 3d 911, 460 N.E.2d 350; Kinney v. St. Paul Mercury Insurance Co. (1983), 120 Ill. App. 3d 294, 458 N.E.2d 79) have reached a different result, we conclude that they disregard the plain language of the statute, and we decline to follow them.

We also find inapposite Robertson v. Travelers Insurance Co. (1983), 95 Ill. 2d 441, 448 N.E.2d 866, on which Personalcare places great reliance. In Robertson, the plaintiff sought to recover, in a common law action, damages for the tort of “outrage” on the basis that an insurer handled his workers’ compensation claim in a “maliciously deceptive” manner, which allegedly resulted in severe emotional distress. (Robertson, 95 Ill. 2d at 445-46, 448 N.E.2d at 868-69.) The court held the action was barred by the general exclusivity provision of the Workmen’s Compensation Act (Act) (Ill. Rev. Stat. 1973, ch. 48, par. 138.5(a)), as well as by section 19(k) of the Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(k)). At the pertinent time, section 19(k) of the Act provided:

“In case[s] where there has been any unreasonable or vexatious delay of payment or intentional underpayment of compensation, or proceedings have been instituted or carried on by the one liable to pay the compensation, which do not present a real controversy, but are merely frivolous or for delay, then the Commission may award compensation additional to that otherwise payable under this Act equal to 50% of the amount payable at the time of such award. Failure to pay compensation in accordance with the provisions of Section 8, paragraph (b) of this Act, shall be considered unreasonable delay.” Ill. Rev. Stat. 1973, ch. 48, par. 138.19(k).

Section 19(k) of the Act, unlike section 155 of the Code, does not recognize the existence of a common law tort action for the recovery of compensatory damages for delay in the payment of benefits. Instead, it expressly provides that the amount which may be awarded thereunder is “compensation additional to that otherwise payable.” This language, together with the general exclusivity provision of the Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.5(a)), provides ample support for the Robertson decision. By contrast, the Code does not contain an exclusivity provision, and section 155 does not state that the amounts recoverable thereunder as additional costs are compensation for delay in payment of policy benefits. Because of the substantially different statutory language involved in Robertson, that decision provides no support for Personalcare’s position that section 155 of the Code preempts common law actions for recovery of compensatory damages attributable to delay in payment of insurance benefits.

We next consider whether damages may be recovered for unreasonable delay in settlement of insurance claims where all benefits due have been paid before a lawsuit is filed. Section 155 is applicable to actions (1) “by or against [an insurance] company wherein there is in issue the liability of [an insurance] company on a policy or policies of insurance or the amount of the loss payable thereunder,” or (2) “for an unreasonable delay in settling [an insurance] claim.” (Ill. Rev. Stat. 1987, ch. 73, par. 767(1).) Section 155 does not specify that a portion of the amount claimed under the subject insurance policy must remain unpaid when an action “for an unreasonable delay in settling [an insurance] claim” is filed, in order for the plaintiff to be eligible for an allowance of additional costs pursuant to that section. Rather, the plain language of section 155 indicates that the amounts specified therein may be assessed as additional costs in all instances in which there has been a vexatious and unreasonable delay in payment of benefits due under an insurance policy — regardless of whether all of the benefits are paid prior to the filing of a lawsuit seeking damages stemming from the delay in settling the claim.

In Lawson v. State Farm Mutual Automobile Insurance Co. (1986), 256 Ga. 285, 347 S.E.2d 565, the Georgia Supreme Court was confronted with a situation in which a person injured by a holder of an automobile liability policy sought statutory penalties, attorney fees, and punitive damages from the tortfeasor’s insurer for failure to timely pay benefits due under the insured’s policy, even though all of the injured party’s claims for benefits were paid at least seven months prior to his filing suit. The court held that the plaintiff could maintain such an action. The statutory language which provided the basis for the Lawson decision prescribed a specific time frame for payment of insurance benefits and thus differed in that respect (and in other respects as well) from the statutory language at issue in the present case. We nevertheless find the following statements in Lawson pertinent to the case at bar:

“If an insurer could avoid these penalties and damages by making payment after the deadline, there would be no incentive in the statute to meet the deadline. *** Payment thereafter to a claimant’s medical suppliers, as in this case, should not prevent a suit by the claimant for the penalties and damages. To interpret the statute otherwise would make it possible for unscrupulous insurers to ignore the due date of the statute with impunity so long as payment to suppliers is made sometime before suit for benefits is brought. *** It is not simply the total failure to pay, but the failure to make timely payment which gives rise to penalties and damages.” (Emphasis in original.) Lawson, 256 Ga. at 286-87, 347 S.E.2d at 566.

Under facts such as those here present, prohibiting recovery of damages incurred as a result of unreasonable delay in the settlement of an insurance claim would permit dilatory insurers to delay payment of insurance benefits with impunity, so long as payment is made before a suit for recovery of the benefits is filed. Contrary to Personalcare’s contention, adoption of the Calcagnos’ position will not destroy the incentive for insurers to settle claims prior to the beginning of litigation. To the contrary, it will encourage insurers to act with the utmost good faith at all steps of the claim investigation and negotiation process and to thereby avoid payment of both prelitigation attorney fees and attorney fees incurred in litigation. Moreover, under the conclusion we reach, courts need not become involved in every disputed insurance claim if all parties engage in good-faith efforts to settle legitimate claims on terms which are fair to both the beneficiary and the insurer.

We also find unpersuasive Personalcare’s arguments based on the specific language of section 155. The “amount which the court or jury finds such party is entitled to recover,” mentioned in subsections 1(a) and 1(c) (Ill. Rev. Stat. 1987, ch. 73, pars. 767(l)(a), (l)(c)), refers to all amounts which are recoverable in actions against insurers, including damages incurred prior to payment of benefits in situations where all benefits claimed are paid prior to litigation. Furthermore, “the amount, if any, which the company offered to pay in settlement of the claim,” mentioned in subsection 1(c) (Ill. Rev. Stat. 1987, ch. 73, par. 767(l)(c)), encompasses all offers made in settlement negotiations pertaining to both claims for payment of policy benefits and claims for damages for unreasonable delay in settlement of benefit claims, regardless of whether any policy benefits remain unpaid at the time of the negotiations.

We also do not agree that the use of the present tense in subsection (1) of section 155 proscribes awards of additional costs thereunder on the basis of vexatious and unreasonable delay where all benefits were paid before suit was filed. All statutory language should be given some effect. (County of Winnebago v. Industrial Comm’n (1966), 34 Ill. 2d 332, 215 N.E.2d 258.) In order to give some significant effect to the words “or for an unreasonable delay in settling a claim,” we must assume the legislature intended to permit awards of additional costs pursuant to section 155 even where all insurance benefits due were paid prior to the beginning of litigation.

We next consider whether prelitigation attorney fees may be awarded as additional costs pursuant to section 155. As previously indicated, compensatory damages may not be awarded pursuant to section 155. Instead, section 155 leaves to the common law the determination of whether compensatory damages may be recovered on the basis of alleged unreasonable delays in settlement of insurance claims.

Attorney fees, at least to the extent that they were not incurred in the same action in which they are awarded, may be recovered under the common law as an element of compensatory damages in cases where the defendant’s tortious conduct proximately caused the plaintiff to incur them. (E.g., Tan v. Boyke (1987), 156 Ill. App. 3d 49, 508 N.E.2d 390; Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 413 N.E.2d 47.) This is an exception to the “American Rule,” which provides that, absent a statute or contract to the contrary, attorney fees and the ordinary expenses and burdens of litigation are not recoverable by the prevailing party. (Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859.) Therefore, attorney fees incurred in prelitigation negotiations regarding insurance claims may be recovered as an element of the plaintiff’s compensatory damages if the evidence establishes that there was an unreasonable delay in settlement of the claim. However, these fees may not be recovered as a part of the “reasonable attorney fees” referred to in section 155. The only attorney fees the circuit court may award as costs pursuant to section 155 are fees incurred in the legal proceedings to which that section refers.

There remains tó be considered the specific elements of the compensatory damages which the Calcagnos may recover under common law theories for Personalcare’s alleged unreasonable delay in settlement of their claim. As we have just stated, attorney fees may be recovered under the common law as an element of compensatory damages to the extent the defendant’s tortious conduct proximately caused the plaintiff to incur them and they were not incurred in the same litigation in which they are recovered. We perceive no reason why this principle should be inapplicable to prelitigation attorney fees incurred in seeking benefits due under an HMO plan.

As Personalcare points out, economic losses generally may not be recovered on the tort theories of negligence, strict liability, or negligent misrepresentation. (Moorman, 91 Ill. 2d 69, 435 N.E.2d 443.) Such losses also may not be recovered on the tort theory of wilful and wanton breach of contract. (See Morrow v. L.A. Goldschmidt Associates, Inc. (1986), 112 Ill. 2d 87, 492 N.E.2d 181.) Economic losses encompass objectively verifiable monetary losses, including loss of use of property, costs of repair or replacement, loss of employment, and loss of business or employment opportunities. (Collins v. Reynard (1990), 195 Ill. App. 3d 1067, 553 N.E.2d 69.) Thus, to the extent the Calcagnos’ common law claims are premised on negligence or wilful and wanton breach of contract, they may not recover the attorney fees, lost wages, travel expenses, and compensation for loss of use of funds which they seek. The Calcagnos could, however, recover these items of damages in a contract action based on breach of the implied covenant of good faith and fair dealing in the insurance contract between them and Personalcare (Ledingham v. Blue Cross Plan for Hospital Care of Hospital Service Corp. (1975), 29 Ill. App. 3d 339, 330 N.E.2d 540, rev’d on other grounds (1976), 64 Ill. 2d 338, 356 N.E.2d 75), since such damages reasonably could be deemed to have been within the contemplation of the parties when Personalcare undertook to provide for the Calcagno family’s healthcare needs through the HMO plan it administers. Underground Construction Co. v. Sanitary District (1937), 367 Ill. 360, 369,11 N.E.2d 361, 365.

Personalcare has misinterpreted the Calcagnos’ claim for damages for emotional distress. The Calcagnos do not claim damages for the separate tort of intentional infliction of emotional distress. Rather, they request damages for emotional distress as a component of the damages to which they would be entitled on a contract theory, or on a tort theory other than intentional infliction of emotional distress. However, we need not address the general availability of such a claim because the facts alleged in the present case could not sustain a recovery for emotional distress' under existing theories of liability. As indicated in Combs v. Insurance Co. (1986), 146 Ill. App. 3d 957, 962-63, 497 N.E.2d 503, 507, the legislature, by enactment of the provisions of the Insurance Code, evidenced an intent to keep the issue of unreasonable and vexatious insurance claim denials under its power and control. One might conclude, from this intent, that certain limitations exist as to claim liability. To open the insurance industry to claims for emotional distress whenever there have been problems in determining the outcome of a claim might best be left to the legislative branch.

We finally consider whether the Calcagnos would be entitled to prejudgment interest on any of the amounts they claim. “Creditors shall be allowed to receive [interest] at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing.” (Ill. Rev. Stat. 1989, ch. 17, par. 6402.) Although the damages the Calcagnos request are related to an HMO plan certificate of coverage, all benefits due by virtue of the certificate have been paid. In order to determine whether the Calcagnos may recover the damages and costs they seek in the present action, it will be necessary to consider the conduct of both Personalcare and the Calcagnos at the pertinent times, the written communications which Personalcare and the Calcagnos’ attorney-exchanged before Personalcare reimbursed the Calcagnos for the cost of the apnea monitor, and the language of the HMO certificate of coverage issued to the Calcagnos. Under these circumstances, the Calcagnos’ suit is not premised on “an instrument of writing,” and the Calcagnos are not entitled to prejudgment interest on any amounts they may recover in this action. See Ry. Passenger & Freight Conductors’ Mutual Aid & Benefit Association v. Tucker (1895), 157 Ill. 194, 42 N.E. 398.

In cause No. 4 — 90—0128, the decision of the circuit court is reversed to the extent it holds the Calcagnos may not maintain a common law action against Personalcare seeking recovery of compensatory damages for unreasonable delay in settlement of their claim for benefits. In cause No. 4 — 90—0147, the portion of the circuit court decision which holds that the Calcagnos may maintain the present action even though Personalcare has paid them all benefits which they requested is affirmed. This case is remanded to the circuit court for further proceedings consistent with this opinion.

No. 4 — 90—0128, Reversed and remanded.

No. 4 — 90—0147, Affirmed and remanded.

GREEN and KNECHT, JJ., concur.