author: Sommer, J. Sommer, C.J.

text:
    (No. 92-CV-0178

      In re Application of Debra Spain

      Order filed November 1, 1991.

      Order filed May 17, 1993.

    Debra A. Spain, pro se, for Claimant.
    Roland W. Burris, Attorney General (James Maher III and Lawrence C. Rippe, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Sommer, J.

This claim arises out of an incident that occurred on June 22, 1991. Debra A. Spain, mother of the deceased victim, Jeffery S. Garbo, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1989, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on July 29, 1991, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on June 22,1991, the victim was beaten during an altercation with the two alleged offenders. The incident occurred near 800 West 5th Street, Johnston City, Illinois. Police investigation revealed that following a verbal dispute with one of the alleged offenders, the victim struck him. The alleged offenders then proceeded to beat the victim. The victim was hospitalized on July 5, 1991, and expired from his injuries sustained during the beating on July 7, 1991. The Claimant then reported this incident to the police and the alleged offenders were subsequently charged with involuntary manslaughter. The criminal proceedings against them are currently pending.

2. That section 80.1 of the Act indicates factors used to determine entitlement to compensation. Specifically, section 80.1(d) of the Act states that an award shall be reduced or denied according to the extent to which the victim s acts or conduct provoked or contributed to his injury or death, or to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim.

3. That it appears from the investigatory report and the police report that the victim was the aggressor in this incident.

4. That the victim s conduct contributed to his death to such an extent as to warrant that the Claimant be denied entitlement to compensation.

5. That in order for a claimant to be eligible for compensation under the Act, there must be evidence that one of the violent crimes specifically set forth under section 72(c) of the Act occurred.

6. That involuntary manslaughter is not one of the violent crimes specifically set forth under section 72(c) of the Act.

7. That according to section 76.1(b) of the Act, a person is entitled to compensation under this Act if the appropriate law enforcement officials were notified of the perpetration of the crime allegedly causing the death or injury to the victim, within 72 hours, or in the event such notification was made more than 72 hours after the perpetration of the crime, the applicant establishes that such notice was timely under the circumstances.

8. That the law enforcement officials were notified 14 days after the perpetration of the crime and the Claimant has failed to establish that such notification was timely under the circumstances.

9. That this claim does not meet required conditions precedent for compensation under the Act.

It is hereby ordered that this claim be, and is, hereby denied.

OPINION

Sommer, C.J.

The Claimant, Debra A. Spain, the natural mother of Jeffeiy Scott Garbo, deceased, seeks benefits under the applicable provisions of the Crime Victims Compensation Act for the death of her son on July 7,1991.

On June 22,1991, Jeffeiy Scott Garbo was beaten by two assailants after he started a fight with one of the assailants who had been talking to his girlfriend. The incident occurred at a party in the public housing development in Johnston City, Illinois. The victim was hospitalized on July 5, 1991, and expired from a subdural hematoma on July 7,1991.

Criminal proceedings were commenced against the offenders in the Williamson County Circuit Court, resulting in their pleas of guilty to charges of involuntary manslaughter in connection with the death of Jeffery Scott Garbo.

Tanya Richardson, who was the decedent’s girlfriend, testified that she had arranged to meet the decedent at a party in Johnston City. Tanya arrived at approximately 10:00 p.m. The decedent was already at the party and had been drinking, but was not drunk. Tanya had a “little argument” with the decedent, and the decedent went for a walk. The decedent was a little bit angry when he left, and Tanya had begun to leave the party so that she could call her sister to go home. As she exited, she began talking to one of the revelers who had been drinking and was walking in an unsteady way. The decedent then walked up and hit the man to whom Tanya had been talking. The decedent had not argued with the man, and the man had not acted in a threatening manner toward the decedent. The brother of the man whom the decedent had struck came out and started a fight with the decedent. The fight lasted for 15 or 20 minutes. The decedent lost consciousness, but no one called an ambulance. The decedent was not taken to the hospital, and no one suggested that he ought to go. The decedent regained consciousness and he and Tanya went for a walk and returned to the party.

Tanya called the decedent’s mother to come and get him before his assailants started something with him again. Tanya tricked the decedent into going for a walk with her to the Dairy Queen where she had made previous arrangements for the decedent’s mother to pick him up.

After the decedents mother picked him up at the Dairy Queen, Tanya went back to the party, and after 25 or 30 minutes called her sister and went home.

The decedents mother testified that she picked her son up at the Dairy Queen. When she picked him up he had been drinking and was angry. His eyes were red and he “cussed” a lot, which he sometimes did when he was intoxicated. The Claimant noticed a slight black mark under the decedents right eye, and a scratch at the outside comer of his right eye, but noticed no other injuries.

The Claimant testified that two days later, the decedent started complaining about headaches. The Claimant took him to the Franklin County Hospital in Benton, where he waited three hours in the emergency room to be seen, but lost patience and left the hospital. On July 4, the decedent did not go to a family picnic and slept. On July 5 when he got up he couldn’t walk straight and walked into a wall. As far as his mother knows, he had not been drinking between June 24 and July 5, but for a day and a half or two days, her son had visited a friend of the Claimant’s in Johnston City and had stayed away from home.

On July 5, after the decedent walked into a wall, he grabbed his shoes and a pillow and began to take a step and fell face first. The Claimant called an ambulance and the decedent was taken to the hospital. While conversing with her son shortly before he fell, the Claimant testified that her son mentioned “something about a black beauty,” which is a dmg or capsule. The Claimant testified that she couldn’t understand what her son said, and that he appeared that he didn’t know where he was and seemed to be intoxicated or under the influence of dmgs.

Her son was taken by helicopter to St. Mary’s Hospital in Evansville and was operated on July 6, 1991. He died July 7, 1991. The doctors said that the decedent had died as a result of hard blows to the head.

The Claimant testified that neither her son nor Tanya called the police prior to July 6. The Claimant did not call the police because she did not know that her son was hurt. The Claimant testified if she had known that her son was hurt “that bad” she would have called the police.

On November 1, 1991, the present claim was denied by order of this Court. The Claimant appealed this denial and the claim was heard before the commissioner on May 7,1992.

The claim was originally denied on three grounds:

First, that the crime was not reported to the police within 72 hours, or that whatever notification was made after 72 hours was “timely under the circumstances.” Ill. Rev. Stat., ch. 70, par. 76.1(6).

Second, that the decedent “provoked or contributed to his injury or death.” (Ill. Rev. Stat., ch. 70, par. 80.1.) Any award may be reduced or denied according to the extent to which the decedent “provoked or contributed to his injury or death.”

Third, that the offenders were charged with involuntary manslaughter, a crime that does not give rise to compensation under the Act. Ill. Rev. Stat., ch. 70, par. 72(c).

The testimony shows that the decedent provoked the beating he received. The question is whether compensation should be entirely denied or be reduced. We find that compensation should be entirely denied. A person generally may not start an altercation when drinking and then when injured in the altercation demand that the taxpayers pay for the injury. In this claim, the response of the perpetrators, that is, to fight, would not be unexpected by the decedent. Though the end result was tragic, the decedent did commit a crime and provoked a situation in which injuries were possible.

We need not consider the other grounds for denial, as the decedents conduct provoked his injury and death.

It is therefore ordered that this Courts order of November 1,1991, is affirmed and this claim is denied.


source: Caselaw Access Project

author: Montana, C.J. Montana, C.J.

license: Public Domain

text:
    (No. 92-CV-0711

      In re Application of Brenda J. Catron

      Order filed January 29, 1992.

      Opinion filed December 18, 1992.

    Brenda J. Catron, pro se, for Claimant.
    Roland W. Burris, Attorney General (Charles A. Davis, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

This claim arises out of an incident that occurred on March 19, 1991. The Claimant, Brenda J. Catron, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1989, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on October 11, 1991, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on March 19, 1991, the Claimant was injured as a result of a traffic accident. The incident occurred at 1200 West 69th Street, Chicago, Illinois. Police investigation revealed that the Claimant was attempting to cross the street when she was struck by a car. The driver of the vehicle fled from the scene and has not been apprehended by the police.

2. That in order for a claimant to be eligible for compensation under the Act, there must be evidence that one of the violent crimes specifically set forth under section 72(c) of the Act occurred.

3. That “crime of violence” as specified in section 72(c) of the Act does not include any other offense or accident involving a motor vehicle except reckless homicide and driving under the influence of intoxicating liquor or narcotic drugs.

4. That the issues presented to the Court are (1) whether the Claimant’s injury that was caused by the offenders operation of a motor vehicle is compensable under section 72(c) of the Act and (2) whether the fact that the offender fled the scene of the incident has an effect on the Claimant’s eligibility for compensation under the Act.

5. That, as the Court stated in In re Hansen (1980), 34 Ill. Ct. Cl. 401,

“The Court has uniformly taken the position that the Illinois Crime Victims Compensation Act is not applicable to unintentional motor vehicle offenses, as not being a ‘crime of violence’ within §2(c) thereof.”

See also In re Desir (1980), 34 Ill. Ct. Cl. 391; In re Stevens (1976), 31 Ill. Ct. Cl. 710.

6. That the Court has also recognized that while a hit and run accident is a crime, it is not one of the crimes specifically enumerated in the Act as being the basis of a claim under the Act. In re Viscarrondo (1980), 34 Ill. Ct. Cl. 402.

7. That this claim does not meet a required condition precedent for compensation under the Act.

It is hereby ordered that this claim be, and is hereby denied.

OPINION

Montana, C.J.

The Claimant, Brenda J. Catron, seeks compensation pursuant to provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. (Ill. Rev. Stat. 1989, ch. 70, par. 71 et seq.) The claim arises as a result of an incident which occurred on March 19, 1991, wherein the Claimant was injured.

The investigation by the office of the Attorney General revealed that Claimant was injured as the result of a traffic accident at 1200 West 69th Street in Chicago, Illinois. While attempting to cross the street, Claimant was struck by a vehicle. The driver of the vehicle fled the scene and has not been apprehended by police. Based on the results of that investigation, the Court entered an order on January 29, 1992, which found Claimant to be ineligible because an incident of hit and run is not an offense included in or specifically enumerated in section 72(c) of the Act.

On March 13, 1992, Claimant requested a review of the Court’s findings. The matter was set for hearing before Commissioner Elizabeth M. Rochford on June 19, 1992. At that hearing, Claimant did not contest any of the facts as presented by the office of the Attorney General, but made a statement on the unfairness of the situation.

The issue before this Court is whether Claimant can be compensated pursuant to the Act for injuries she sustained when she was struck by an automobile by an unknown offender.

Claimant is only eligible for compensation under the Act where there is evidence of one of the violent crimes specifically set forth under section 2(c) of the Act. The Court has recognized that while a hit and run accident is a crime, it is not one of the crimes specifically enumerated in the Act as being the basis of a valid claim. (In re Application of Viscarrondo (1980), 34 Ill. Ct. Cl. 402.) The term “crime of violence” as specified in section 2(c) of the Act does not include any other offense or accident involving a motor vehicle except reckless homicide and driving under the influence of intoxicating liquor or narcotic drugs. In re Application of Wilcox (1988), 41 Ill. Ct. Cl. 339, 340.

This Court has uniformly taken the position that the Act is not applicable to unintentional motor vehicle offenses, as they are not considered “crimefs] of violence” within section 2(c) of the Act. Wilcox, supra, at 340-41. In re Application of Hansen (1980), 34 Ill. Ct. Cl. 401; In re Application of Desir (1980), 34 Ill. Ct. Cl. 391; In re Application of Stevens (1976), 31 Ill. Ct. Cl. 710.

We find that the Claimant has failed to meet a required condition precedent for compensation under the Act. It is therefore hereby ordered that this claim be, and is, hereby denied.


text:
    (No. 92-CV-0790

      In re Application of Betty Jones Johnson

      Opinion filed March 24, 1992.

      Order filed November 17, 1992.

    Betty Jones Johnson, pro se, for Claimant.
    Roland W. Burris, Attorney General (Charles A. Davis, Jr., Assistant Attorney General, of counsel), for Respondent.
   OPINION

Montana, C.J.

This claim arises out of an incident that occurred on August 1, 1991. Betty Jones Johnson, mother of the deceased victim, Darryl C. Jones, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1989, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on October 18, 1991, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on August 1, 1991, the Claimants deceased son, Darryl C. Jones, age 18, was a victim of a violent crime as defined in section 72(c) of the Act, to wit, first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1).

2. That the crime occurred in Chicago, Illinois, and all of the eligibility requirements of section 76.1 of the Act have been met.

3. That the Claimant seeks compensation for funeral and burial expenses.

4. That the Claimant incurred funeral and burial expenses in the amount of $3,393, all of which has been paid. Pursuant to section 72(h) of the Act, funeral and burial expenses are compensable to a maximum amount of $3,000.

5. That the Claimant has received no reimbursements that can be counted as an applicable deduction under section 80.1(e) of the Act.

6. That the Claimant has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

It is hereby ordered that the sum of $3,000 be and is hereby awarded to Betty Jones Johnson, mother of Darryl C. Jones, an innocent victim of a violent crime.

ORDER

Montana, C.J.

This claim arises as a result of the murder of Darryl Jones on August 1,1992. The mother of the deceased victim seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereinafter referred to as the Act. Ill. Rev. Stat. 1987, ch. 70, par. 71 et seq.

The Attorney Generals Office, after conducting an investigation of the case, concluded that Darryl Jones was the victim of a violent crime and that Claimant was eligible for compensation pursuant to the Act.

The Court made an award to Claimant in the amount of $3,000, the maximum statutory award for funeral and burial expenses, on March 24,1992.

On April 17, 1992, Claimant rejected the award by returning the check to Governor Edgar and stating by letter that the amount awarded was an inadequate sum to compensate her for the loss of her son.

On April 29, 1992, Diane Ford, counsel to the Governor, responded by letter to Claimant. Ms. Ford attempted to explain the purpose and limitations of the Act and encouraged Claimant to accept the award as compensation for the funeral expenses she incurred.

On May 12, 1992, Claimant refused the award a second time by returning it to the clerk of the Court of Claims.

The claim was assigned to Commissioner Rochford on April 23, 1992, and set for hearing on June 18, 1992. Qn June 18, 1992, Claimant appeared. Claimant repeatedly refused to accept the $3,000 award (Transcript pages 3, 5-8). Claimant stated that she was seeking a larger award and that in the absence of a larger sum of money she would continue to refuse the award.

The Crime Victims Compensation Act was enacted by the legislature to aid and assist crime victims under certain circumstances to receive compensation to help pay for the pecuniary losses sustained by victims. (In re Application of Hutcherson (1985), 37 Ill. Ct. Cl. 491, 492.) In the case of death, pecuniary loss is defined as follows:

“° ° “funeral and burial expenses to a maximum of $3,000.00 and loss of support of tire dependents of the victim.” (Ill. Rev. Stat., ch. 70, par. 72 (2) (h).)

The evidence supports the Courts prior award to Claimant in the amount of $3,000, the maximum statutory award for funeral expenses pursuant to the provisions of the Act.

The Court is not unsympathetic to the Claimants loss of her son. The Court agrees that the prior award is not adequate compensation for such a loss. However, the award is not for the loss of the son. The Act was not intended to provide such compensation. The purpose of the Act was to provide, in this case, compensation for the out-of-pocket expenses associated with the funeral and burial. The Court can award no more money than the Act allows.

It is hereby ordered that the prior order of the Court awarding Claimant $3,000 for funeral and burial expenses be, and hereby is, affirmed; it is further ordered that if the Claimant returns the warrant issued in payment of the award one more time the clerks office is directed to cancel the warrant for redeposit and forever close the file on this case.


text:
    (No. 92-CV-1707

      In re Application of Marabia Clark

      Opinion filed October 5, 1992.

      Opinion filed May 13, 1993

    Marabia Clark, pro se, for Claimant.
    Roland W. Burris, Attorney General (Charles A. Davis, Jr., Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

This claim arises out of an incident that occurred on November 20, 1991. Marabia Clark, mother of the deceased victim, Kahil Cuyler, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1989, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on February 20, 1992, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on November 20, 1991, the Claimant’s deceased son, Kahil Cuyler, age 18, was a victim of a violent crime as defined in section 72(c) of the Act, to wit, first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9— 1).

2. That the crime occurred in Chicago, Illinois, and all of the eligibility requirements of section 76.1 of the Act have been met.

3. That the Claimant seeks compensation for funeral expenses and for medical/hospital expenses incurred prior to the victim’s death.

4. That pursuant to section 80.1(c) of the Act, a person related to the victim may be compensated for funeral, medical and hospital expenses of the victim to the extent to which he has paid or become obligated to pay such expenses.

5. That the Claimant incurred funeral expenses in the amount of $1,317.95, all of which has been paid.

6. That after considering insurance and other sources of recovery, the Claimant’s net compensable loss for medical/hospital expenses is $1,250. Although the Claimant has paid nothing towards this balance, she is obligated to pay the entire amount.

7. That the Claimant has received no reimbursements that can be counted as an applicable deduction under section 80.1(e) of the Act.

8. That the Claimants net loss can be determined on the following:

Compensable Amount

Christ Hospital $1,250.00

Paid Funeral Expenses 1,371.95

Total $2,621.95

9. That the Claimant has complied with all pertinent provisions of the Act and qualifies for compensation thereunder.

10. That on July 6, 1992, Christ Hospital filed a hospital lien with the Illinois Court of Claims concerning the victims outstanding hospital expense. The Court orders direct payment be made to the hospital in the instant case.

It is hereby ordered that the sum of $1,371.95 be and is hereby awarded to Marabia Clark, mother of Kahil Cuyler, an innocent victim of a violent crime.

It is further ordered that the sum of $1,250 be and is hereby awarded to Christ Hospital for the hospital expenses incurred by the Claimant, Marabia Clark.

OPINION

Sommer, C.J.

At the request of the Claimant, a hearing on the above entitled claim under the Crime Victims Compensation Act was held on March 12, 1993, before Commissioner Griffin.

The Claimant, Marabia Clark, appeared pro se. Roland W. Burris, Attorney General, by Charles Davis, Assistant Attorney General, appeared on behalf of the Respondent, State of Illinois.

On October 5, 1992, the Claimant was awarded the sum of $1,250 for hospital expenses and the sum of $1,371.95 for funeral expenses. The compensation arose from the death of her son, Kahil Cuyler, age 18, who was a victim of a violent crime. After the funeral of the decedent, the Claimant held a catered reception for those attending the memorial service and now seeks to recover the cost of the catered service, claiming it as part of a traditional funeral.

The Court finds that a catered reception with food and drink is beyond what is regularly considered as funeral expenses under the Crime Victims Compensation Act and that there would have to be a provision in the Act allowing for payment of such. The Attorney General takes the position and we find that there is no provision in the Act allowing for payment of a catered reception with food and drink provided to those attending the services.

It is therefore ordered that the Claimants request for additional compensation is denied, and this Claim is dismissed.


author: Frederick, J. Frederick, J.

text:
    (No. 92-CV-2002

      In re Application of Elnora Camp

      Order filed September 2, 1992.

      Opinion filed March 30, 1993.

    Elnora Camp, pro se, for Claimant.
    Roland W. Burris, Attorney General (Charles A. Davis, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Frederick, J.

This claim arises out of an incident that occurred on December 30, 1991. Elnora Camp, aunt of the deceased victim, Anthony James Young, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1989, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on March 31, 1992, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on December 30, 1991, the victim was shot by the alleged offender. The incident occurred near 900 South Pulaski, Chicago, Illinois. Police investigation revealed that the victim, armed with an Uzi machine gun, began shooting at rival street gang members. During the exchange of gunfire between the rival street gang members, the victim was shot by the alleged offender. The alleged offender has been apprehended and charged with first degree murder. The criminal proceedings against him are currently pending.

2. That section 80.1 of the Act indicates factors used to determine entitlement to compensation. Specifically, section 80.1(d) of the Act states that an award shall be reduced or denied according to the extent to which the victim’s acts or conduct provoked or contributed to his injury or death, or to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim.

3. That it appears from the investigatory report and the police report that the victim was armed with an Uzi machine gun and began shooting at rival street gang members. During the exchange of gunfire, he was shot by the alleged offender.

4. That the victim’s conduct contributed to his death to such an extent as to warrant that the Claimant be denied entitlement to compensation.

5. That this claim does not meet a required condition precedent for compensation under the Act.

It is hereby ordered that this claim be, and is, hereby denied.

OPINION

Frederick, J.

On March 31, 1992, Elnora Camp, aunt of the deceased victim, filed her application pursuant to the Crime Victims Compensation Act seeking reimbursement for the funeral bill of Anthony James Young. Ill. Rev. Stat. 1989, ch. 70, par. 71 et seq.

This Court considered the application and the investigatory report of the Attorney General and denied the claim in an order entered on September 2, 1992. On September 23,1992, Claimant filed a request for hearing.

From the reports and evidence, it appears that decedent, Anthony James Young, was shot in the back of the head and killed on December 30, 1991, in a gang shootout. The reports indicate the decedent, also known as “Paws,” had an Uzi-type weapon and was firing same. He was shot by a rival gang member who was behind him and on a roof during the shoot-out. Several witnesses to the shooting gave statements that the decedent had such a weapon in his possession when he was shot. A person filing a claim for compensation under the Crime Victims Compensation Act is not entitled to compensation if the victim’s injuries or death were substantially attributable to the victims own wrongful act or substantially provoked by the victim. In re Application of Williams (1987), 39 Ill. Ct. Cl. 321.

The overwhelming evidence before the Court is that the decedent received a weapon from a gang member known as Karate Joe. Karate Joe had told the victim and others to go shoot some X’s, being members of a rival gang. The victim ran out into the street, shooting, but did not see the rival gang members on the roof behind him. A man and his wife who were coming from the laundromat saw the victim lying on the street after observing gunfire in the area. The victim was lying face down. An Uzi-type weapon was lying right next to the victim’s right hand. Several other male teenagers grabbed the weapon and ran away.

This claim does not meet a required condition precedent for compensation under the Act as the conduct of the victim directly and substantially contributed to his death. As tragic as this death may be, we are constrained by law to affirm our prior ruling and deny this claim.


author: Burke, J. Burke, J.

text:
    (No. 80-CC-0260
    Charles S. Lawrence and Minnie Johnson Lawrence, Claimants, v. The State of Illinois, Respondent.

      Opinion filed October 16, 1992.

      Order on petition for rehearing filed August 4, 1993.

    David S. Pochis and Alan D. Katz, Ltd. (Miles M. Dore, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Gregory Abbott, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

On September 10, 1978, Claimants, Charles Lawrence and Minnie Johnson Lawrence were riding eastbound on the Eisenhower Expressway en route to a family gathering in Gary, Indiana. They entered the Eisenhower Expressway at the Austin Avenue entrance. Mr. Lawrence was operating the motorcycle and Minnie Johnson Lawrence was on the back of the motorcycle. It is the Claimants’ contention that their vehicle became stuck in a longitudinal joint causing the motorcycle, which was travelling 50 to 55 miles per hour, to immediately stop, flinging them over the handlebars some 100 feet.

Mr. Lawrence admitted that he was driving a 1020 CC Kawasaki motorcycle on the date in question. He further admitted that he was not licensed to drive a motorcycle and that it was the largest motorcycle he ever owned. Mr. Lawrence stated that he was changing lanes and the next thing he knew he was flying through the air. As he flew through the air, he looked back for Minnie and noticed that the motorcycle was wiggling back and forth, stuck in some type of crevice or separation in the highway. He claims he landed approximately 100 feet away from the location of the bike. Mrs. Lawrence indicates that she was on the bike and the first sign to her that something unusual was occurring was that the bike just completely stopped and she tumbled forward. She received injuries sufficient to keep her hospitalized, but did not suffer head injuries or broken bones.

This Court has repeatedly held that the State is not the insurer of persons traveling upon its highways, but that it does owe ordinary care in the maintenance of its highways. In order to recover on a claim of negligence, the Claimants must establish that there was negligence on the part of the State, that the negligence was the proximate cause of the injury and that the Claimant was not contributorily negligent. The evidence presented by the Claimants, while it is not contradicted, is simply not sufficient. The only evidence that the motorcycle upon which the Claimants were riding was actually stuck in a “groove” while traveling 55 miles per hour is the testimony of Mr. Lawrence that he observed the motorcycle as he was hurling through the air.

Claimants failed to sustain their burden of proof that it was the States negligence which caused their injuries.

It is hereby ordered that the claim of Charles Lawrence and Minnie Johnson Lawrence is denied.

ORDER

Burke, J.

This cause coming to be heard upon Claimants’ motion for rehearing and the Court being fully advised in the premises,

It is hereby ordered that Claimants’ petition is hereby denied.


author: Patchett, J. Patchett, J.

text:
    (No. 81-CC-1479
    Dr. Ulrich G. Klopfer, Claimant, v. Illinois Department of Public Aid, Respondent.

      Opinion filed August 1, 1990.

      Opinion filed September 29, 1993.

    Cooke, Lewis & Lapat (Michael Lapat, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Erin O’Connell, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This is a claim brought by Dr. Ulrich G. Klopfer, a licensed physician in the State of Illinois. Dr. Klopfer seeks the sum of $165,333.20 for 931 abortions performed by him for Public Aid recipients from June 1978 to February 1979.

This case has raised a myriad of interesting, complex, and difficult issues. The basic facts are these:

In September 1976, the United States Congress enacted legislation known as the “Hyde Amendment.” The Hyde Amendment was a provision which was enacted in varying forms into appropriation bills funding the Department of Health, Education and Welfare and the Labor department commencing with fiscal year 1977. The fiscal 1978 and 1979 versions of the Hyde Amendment provided as follows:

“None of the funds provided for in this Act shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest, when such rape or incest has been reported promptly to a law enforcement agency or public health service; or except in those instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians.” Section 210 of Public Act 95 — 480; 92 Stat. 1586, October 18,1978.

Because of Illinois’ participation in the Medicaid program, the Illinois legislature, by Public Act 80 — 1091, effective November 17,1977, amended the Illinois Public Aid Code, sections 5 — 5, 6 — 1, and 7 — 1 as follows:

“ARTICLE V — MEDICAL ASSISTANCE
5 — 5 Medical Services
5 — 5 The Illinois Department, by rule, shall determine the quantity and quality of the medical assistance for which payment will be authorized, and the medical services to be provided, which may include all or part of the following: ” ° ° (16) any other medical care, and any other types of remedial care recognized under the laws of the State, but not including abortions, or induced miscarriages or premature births, unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment, or except an induced premature birth intended to produce a live viable child and such procedure is necessary for the health of the mother or her unborn child.” Chapter 23, Charities and Public Welfare, Section 5 — 5. (Amendatory language italicized.)
“ARTICLE VI — MEDICAL ASSISTANCE
6— 1 Eligibility Requirements
6— 1 Eligibility Requirements. Financial Aid in meeting basic maintenance requirements for a livelihood compatible with health and well-being, plus any necessary treatment, care and supplies required because of illness or disability, shall be given under this Article to or in behalf of persons who meet the eligibility conditions of Sections 6 — 1.1 through 6 — 1.6. Nothing in this Article shall be construed to permit the granting of financial aid where the purpose of such aid is to obtain an abortion, induced miscarriage, or induced premature birth unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment, or except an induced premature birth intended to produce a live viable child and such procedure is necessary for the health of the mother or her unborn child.” Chapter 23, Charities and Public Welfare, Section 6 — 1. (Amendatoiy language italicized.)
“ARTICLE VII—
LOCAL AID TO THE MEDICALLY INDIGENT
7— 1 Eligibility Requirements
7— 1 Eligibility Requirements. Aid in meeting the costs of necessary medical, dental, hospital, boarding or nursing care, or burial shall be given under this Article to or in behalf of any person who meets the eligibility conditions of Sections 7 — 1.1 through 7 — 1.3, except where such aid is for the purpose of obtaining an abortion, induced miscarriage, or induced premature birth unless, in the opinion of a physician, such procedures are necessary for the preservation of the life of the woman seeking such treatment, or except an induced premature birth intended to produce a live viable child and such procedure is necessary for the health of the mother or her unborn child.” Chapter 23, Charities and Public Welfare, Section 7 — 1. (Amendatory language italicized.)

Following the passage of the aforesaid act, certain individuals brought a class action in the United States District Court for the northern district of Illinois, eastern division, seeking to enjoin enforcement of the aforesaid Illinois statute. A quote from that case follows:

“Plaintiffs brought this class action under 42 U.S.C. Section 1983 to enjoin enforcement of a 1977 Illinois statute withdrawing medical assistance funding in Illinois for all abortions except those “necessary for tire preservation of the life of the (pregnant) woman.” P.A. 80 — 1091, Ill. Rev. Stat. Supp. 1978, Ch. 23, Sections 5 — 5, 6 — 1, 7 — 1. Plaintiffs are two doctors who perform medically necessary, but not necessarily life-preserving, abortions for indigent women; the Chicago Welfare Rights Organization, whose members include women dependent on Illinois medical assistance benefits; and Jane Doe, an indigent woman for whom an abortion is medically necessary, but not necessary for the preservation of her life. Defendant Arthur Quern is the Director of the Illinois Department of Public Aid, the State agency responsible for administering Illinois medical assistance programs. Intervenor-defendants include two doctors and the United States.
1. The classes certified by the District Court consist of (1) all pregnant women eligible for the Illinois medical assistance programs for whom an abortion is medically necessary, but not necessary for the preservation of their lives and who wish such abortion performed, and (2) all Illinois physicians who are certified to obtain reimbursement for necessary medical services rendered to, and who perform medically necessary abortions for, persons eligible for the Illinois medical assistance programs." Zbaraz v. Quern, 469 F. Supp. 1212, 1213-14 (1980).

On December 21, 1977, Judge Kirkland, of the aforesaid United States District Court, ordered the proceedings stayed, pending an interpretation of Public Act 80 — 1091 by an Illinois State court. The plaintiffs then appealed that order to the United States Court of Appeals, Seventh Circuit. That court overruled Judge Kirkland and remanded the case to the United States District Court. In its opinion, the United States Court of Appeals, Seventh Circuit, stated:

“In December 1977, the District Court issued an order abstaining from consideration of the case. Plaintiffs appealed, and this Court granted them an injunction pending appeal against enforcement of the Illinois statute insofar as it prohibits state funding for therapeutic abortions.
ti O 0
3. Our injunction order defined ‘therapeutic’ as ‘medically necessary or medically indicated according to the professional medical judgment of a licensed physician in Illinois, exercised in light of all factors affecting a woman’s health.' The District Court employed this definition in its final judgment now here on appeal.” Zbaraz v. Quern, 596 F.2d 196, 197-198.

Judge Kirkland, in considering the case after remand, held that by failing to cover “medically necessary” abortions, Public Act 80 — 1091 violated the Social Security Act and its underlying regulations. Judge Kirkland then issued a permanent injunction restraining the Illinois Department of Public Aid from enforcing Public Act 80 — 1091 in such a manner as to deny payments under the Illinois Medical Assistance programs for therapeutic abortions. Zbaraz v. Quern, 469 F. Supp. 1212.

The plaintiffs once again appealed to the United States Court of Appeals, Seventh Circuit. In an opinion of February 13, 1979, the appellate court again remanded the case to the district court. Grounds for the remand this time were that Judge Kirkland had resolved the case on statutory grounds and did not resolve any potential constitutional challenges.

“As noted, the District Court did not reach the Constitutional arguments raised by the parties because it had statutory grounds for its decision. Because the Constitutional issues were not considered below, and in light of tire fact that our interpretation of the Hyde Amendment to modify the requirements of Title XEÍ may alter tire Constitutional considerations, it would be inappropriate for us to pass on them now. The parties should have a full opportunity to develop their positions and the District Court to rule on them. Singleton v. Wulff, 428 U.S. 106, 120, 96 S. Ct. 2868, 49 L. Ed. 2d 2826. Therefore, we remand tire case for expedited consideration of the Constitutional questions that remain open.” Zbaraz v. Quern, 596 F.2d 196, 202.

After the second remand, Judge Kirkland recused himself from the case for medical reasons. It was then assigned to Judge Grady who wrote the district courts next opinion, dated April 29, 1979. Judge Grady held both the Hyde Amendment and Public Act 80 — 1091 as unconstitutional, as applied to medically necessary abortions prior to the point of fetal viability. Zbaraz v. Quern, 469 F. Supp. 1212, 1221.

The defendants then sought a direct appeal before the United States Supreme Court. That Court, in Williams v. Zbaraz (1980), 100 S. Ct. 2694, held that Public Act 80 — 1091, and the Hyde Amendment, were not unconstitutional. In addition, that Court held that the district court lacked jurisdiction to consider the constitutionality of the Hyde Amendment.

The Respondent has explicitly acknowledged that from June 1978 to February 1979, the period in which the 931 abortions at issue here were performed, a binding permanent injunction issued by the United States District Court for the northern district of Illinois, eastern division, was in force.

As a result of the first injunction, which was issued by the United States Court of Appeals, Seventh Circuit, in its opinion of January 18, 1978, the Illinois Department of Public Aid sent a notice to medical providers notifying them of the recent court order. The Illinois Department of Public Aid also furnished them with a copy of a new abortion certification. The Department also sent out a “Medicaid Message” furnishing basically the same information. Those documents defined therapeutic. Those documents further provided:

“The Department will comply with the terms of this injunction and will, so long as the injunction remains in force, render the appropriate payment for ‘therapeutic’ abortions performed on or after January 11, 1978, upon receipt of the appropriate DPA Form 132 or DPA Form 117 submitted stapled to the newly revised ‘Abortion Certification,’ a copy of which is printed on tire reverse side of this sheet.”

Following the first remand, and the subsequent issuance of Judge Kirklands injunction dated June 13, 1978, the Illinois Department of Public Aid once again sent out a notice to medical providers providing information and definitions essentially equivalent to those quoted above. Copies of these notifications are attached to this opinion and made a part hereof by reference.

The trial of this case began before a Commissioner of this Court on August 1, 1983. The Claimant made a long and explicit prima facie case with respect to each billing his office had submitted to the Department of Public Aid. It appears that each billing was submitted on the prescribed billing forms, correctly filled out, and accompanied by a required abortion certificate, which was correctly filled out and signed by the Claimant. That is, with respect to each abortion for which the Claimant seeks funds, he, as a licensed physician, had certified that on a given date, for a given patient, he had performed an abortion which was medically necessary or medically indicated according to his medical judgment exercised in light of all the facts affecting the patients health.

Initially, all of the claims in question were accepted by the Illinois Department of Public Aid, processed through that department’s vouchering unit, and forwarded to the comptroller’s office for payment. It appears from the record that the comptroller’s office rejected the claims, and it returned them to the Illinois Department of Public Aid Bureau of Program Integrity.

Unfortunately, the record is not particularly clear regarding the reasons for the comptroller’s rejection of these claims. It certainly appears from the record that the comptroller questioned the repeated and numerous diagnoses by the Claimant. Many of these diagnoses and certifications were identical in the terms of their wording. In any event, after the claims were returned to the Bureau of Program Integrity, they were ultimately rejected by the Illinois Department of Public Aid and returned to the Claimant with an explanation as to the reason for their rejection. This transmittal basically began on March 6,1979.

As indicated by the United States Supreme Court in its opinion, after the permanent injunction was entered by the district court, an application for stay of its order was refused by the district court. The director of the Illinois Department of Public Aid and certain intervening defendant physicians moved in the United States Supreme Court for a stay pending appeal. That was also denied. A reapplication was further denied. The United States Supreme Court issued its opinion on June 30, 1980, in which it held that the Hyde Amendment and the Illinois statute in question, Public Act 80 — 1091, were not unconstitutional. Initial payment for these abortions was denied in March 1979. A complaint was originally filed on January 16, 1981.

It also appears that during the time in question, 31 other claims submitted by this Claimant were ultimately paid, after having been rejected. Although difficult to understand in the context of the issues before us, we do not find that this is relevant to resolving the issue at hand.

At the trial before the Commissioner, a great deal of time was consumed upon whether or not these abortions in question were medically necessary. Experts were called, and a lot of testimony produced on that issue. We do not feel, however, that we have to resolve that issue in order to resolve this claim. The Commissioner in his recommendation correctly pointed out, as above indicated, that at no time during the two years and six months from the time of the filing of this claim until the beginning of the trial did the Respondent see fit to file any pleadings, whether by way of motions, answers, or the raising of affirmative defenses. In addition, it does not appear there were any discovery procedures initiated prior to the trial beginning on August 1,1981.

However, at the opening of the first hearing on August 1, 1981, the assistant Attorney General representing the Respondent made an oral motion for summary judgment on the grounds of the statute of limitations. The Attorney General indicated that a departmental report would be attached to such a motion for summary judgment but that it was not in their possession yet. In any event, the hearing was postponed and did not resume again until October 27,1983.

Unfortunately, during this time the Respondent did not file a motion for summary judgment. In addition, the Attorney General did not raise the issue in its brief. However, it is clear that Public Aid claims must be filed within one year of the denial of the claim. Recently this Court decided the case of Memorial Medical Center v. State (1988), 40 Ill. Ct. Cl. 73, filed February 4, 1988. In that case, Judge Poch dismissed a claim for abortion-related services because under the medical assistance program, one of the three programs involved in the Federal court litigation previously referred to, the claim was untimely in that it was filed more than one year after the date of the departments written notification that the vendors claims were being disallowed.

While the procedure utilized by the Attorney General has been dismal in its attention to detail, it appears that they raised an extremely valid defense.

However, in addition to the statute of limitations argument, we must look at the effect of the permanent injunction on the State of Illinois and the ultimate resolution of the issues by the United States Supreme Court. There is no doubt that an injunction, while in force, should be obeyed. We believe that the State of Illinois took every effort to do exactly that, as evidenced by the documents which are attached to this opinion. As previously indicated, the various Federal courts denied motions for stay pending the final resolution of these issues by the United States Supreme Court. Therefore, it is clear that the injunction was binding and in effect for the entire time that these abortions were being performed. Illinois courts consistently held that injunction orders will be fully effective even though a notice of appeal is filed unless a stay order is issued. Bowman Dairy Company v. Lyons (1954), 2 Ill. 2d 625, 120 N.E.2d 1; East Side Health District v. Village of Caseyville (1963), 30 Ill. App. 2d 438,187 N.E.2d 534.

In addition, the Illinois Supreme Court has held that permanent injunction, until modified or vacated, operates as a continuing adjudication which stays the actions of the defendant, and as such, that it must be obeyed until modified or vacated, even if erroneously entered. Bowman Dairy Company v. Lyons, supra.

The documents attached to this opinion indicate that the Illinois Department of Public Aid intended to comply with the terms of the injunction and render appropriate payment, so long as the injunction remained in force. By the time this claim was originally presented to this Court, the injunction was no longer in force, and the constitutionality of both the Hyde Amendment and the Illinois act had been clearly established by the United States Supreme Court. It is unclear from the record before this Court whether or not the injunction was still in force at the time of the initial rejection of the claims in March 1979. But we feel that basically is irrelevant to the resolution of the issue before us. There are other means of enforcing the violation of an injunction. Evidently, the Claimant took no steps to enforce the purported violation of this injunction by appropriate remedy in the appropriate Federal court. Almost two years elapsed from the time of the initial letter of denial from the Illinois Department of Public Aid until this claim was filed before this tribunal. By the time the claim was filed, and for a considerable period of time prior to the filing of the claim, the injunction was no longer in force, and the constitutionality and validity of the applicable statutes were clearly established.

If payment had been made during the time the injunction was in force, it clearly could not have been challenged. But if payment had not been made at the time the injunction stopped being in force, and if payment had not been made at the time the constitutionality of the applicable statutes was clearly established, then we would be asking the Illinois Department of Public Aid to violate those same statutes by paying for abortions which had violated the clear meaning of those very statutes. The Claimant is, in fact, asking us to require the State, at this late date, to violate its own law and the law of the United States of America. We do not see before us in the record of this case any theory which would justify such action. Once the injunction stopped being in force, the State was simply not required to make any further payments for abortion procedures which violated the aforesaid acts, regardless of when those abortions were performed.

We make this ruling with clear acknowledgement of the fact that stays of the injunction pending appeal were applied for and denied by both the Department and other parties. However, the Claimant did not attempt any appropriate relief to enforce the injunction in the Federal Courts before bringing this claim. The power of Federal Courts would have been more than sufficient to enforce compliance by the Illinois Department of Public Aid with the injunction while it was in effect.

As we previously indicated, we have recently dismissed a somewhat similar claim for the reason it was not brought in a timely manner. The State of Illinois has sovereign immunity, and the legislature has seen fit to establish this tribunal as a method of allowing citizens to make claims against the sovereign despite the concept of immunity. However, we are obligated by statute to follow the laws of the State of Illinois in ruling on such claims. If we were to grant a claim such as this, which violated a statute passed by the Illinois legislature, and which was ultimately upheld by the United States Supreme Court, we would be doing a great disservice to the concept of sovereign immunity. In addition, the legislature clearly established a statute of limitations for making claims by Public Aid providers. If this Court is made aware of the existence of a valid statute of limitations defense, no matter by how poor the procedure used by the Respondent in doing so, this Court is bound to recognize the existence of such a defense and to deny the claim accordingly.

For the reasons above stated, we hereby deny this claim.

ORDER

Patchett, J.

This cause comes on for hearing on Claimants petition for rehearing and other relief filed August 13,1990.

On August 1, 1990, the Court entered an opinion denying Claimant’s claim. The opinion rendered clearly goes into all of the complex and difficult issues involved in this case. The evidence is also clear that once Claimant’s claim was denied and he was informed by the Illinois Department of Public Aid of the denial, Claimant had one year from that date to file a claim with the Court of Claims. It took Claimant more than one year to file his claim in the Court of Claims.

The record indicates that the same issues advanced by Claimant in his petition for rehearing filed August 13, 1990, were raised by Claimant at the trial proceedings on August 1, 1983. At that hearing, Respondent made a belated oral motion for summary judgment raising the one-year statute of limitations on this claim. However inartfully done, the issue was brought to the Court’s attention.

On August 1, 1983, counsel for Claimant made the same arguments to the commissioner that he makes in his petition for rehearing. He argued the oral motion was not timely made, that the motion for summary judgment was not made in accordance with the Civil Practice Act, that there was no notice of the motion, and no actual motion before the Court. He further argued that the oral motion did not comply with any procedural requirements of the Court. Counsel for Claimant also argued, “If you decide to accept this affidavit, for whatever limited value it has, is really the whole crux of this case.” The Claimant obviously realized that the statute of limitations was a significant issue before the Court. Claimant argued that “the whole issue is whether or not claims were submitted in a timely manner, whether they were sent back for resubmission to the DPA and whether or not these claims were properly rejected or whether they were ineligible.”

Counsel for Claimant requested the commissioner not to rule on the motion for summary judgment as the motion went “to an ultimate issue of fact for the Court to determine, and there are factual issues which witnesses will testify to.”

It is clear that although Respondent never filed a motion for summary judgment, that Claimant was aware of the issue on the period of limitations and that it was an issue of importance and had to be addressed with testimony. Claimants counsel even raised the issue of rejection and recertification on August 1, 1983. Claimant’s counsel argued to the Commissioner:

“So, it’s not really when the claim is first denied. It’s when they finally say, ‘By the way, we are not paying this and that’s final.’
I think this is an issue for you to determine when, at what point in time did they stop the investigation as to whether or not the claim was eligible or not and in fact deny it or at what point in time it was shown to DPA that the claim was in fact eligible and then it was subsequently paid.
I think that you'll find that all of the certificates and all of the paper was submitted in a timely manner, and I think that the evidence will show that there was correspondence — as their records show here- — between DPA and my client in an attempt to straighten out this matter, and it was only at such a time that it became totally impossible to deal with the Department of Public Aid that this case in fact became possible.
So it’s not that simple question of the claim was denied with this letter and then all of a sudden the statute runs. It’s a more complex “ °

The Commissioner stated to Claimants counsel on August 1,1983:

“Now, just a minute, Mr. Lapat. If the statute of limitations is in fact an issue, the fact that the Attorney General’s Office perhaps sloppily has let two or so many years go by without raising it would not bar the three judges from considering that issue because the Court is an advisory committee to the legislature, and before the Court recommends to the legislature that a given amount of money be appropriated for any given claim, tire Court, on its own, will consider all possible defenses, no matter how untimely raised and even if the Court has to raise the defense itself.”

The Commissioner then asked for the positions of both counsel on the issue of the statute of limitations. The State took the position that the Claimant’s claim was rejected on July 30, 1979. This cause was filed in the Court of Claims on January 16, 1981. The State argued that the statute of limitations was one year pursuant to Ill. Rev. Stat. (1979), ch. 23, par. 11 — 13. The Commissioner read the statute to Claimant’s counsel and indicated to Claimant’s counsel that the July 30, 1979, letter of Public Aid stated “Resubmittal of these claims will not result in payment.”

Claimant argued that there were attachments to the letter of July 30, 1979, rejecting the claims and an issue of fact exists as to which claims were rejected. He also indicated that it was an issue as to whether Claimant received the rejection notice. Claimant was given the opportunity to wait for the motion for summary judgment to be filed and heard or proceed to trial. Based on the foregoing, it is not credible for Claimant to argue that the statute of limitations was an important issue in this case and that the Claimant did not have an opportunity to respond.

The trial in this case began on August 1, 1983, and extended through eight volumes of testimony. Testimony was taken for several days and into January 5,1984, when the proofs were closed.

At the trial on January 4, 1984, Kenneth Pitman of the Illinois Department of Public Aid testified. The witness testified to certain letters of March 6, 1979, April 24, 1979, June 19, 1979, July 12, 1979, and a final letter of July 30, 1979, from the department to Dr. Klopfer. These letters, taken together with the testimony of Kenneth Pit-man and Beverly Lange, were sufficient circumstantial evidence to show that the 931 claims of Dr. Klopfer were rejected no later than July 30, 1979. This case was filed in the Court of Claims on January 16, 1981.

The issue of the statute of limitations was raised and the Court believed it was raised sufficiently to deny the claim of Claimant on this jurisdictional basis. The decision of the Court had nothing to do with assuming an adversarial role or rewriting rules. The Court did not decide an unfiled summary judgment motion and did not rewrite the rules of civil procedure. The Court made a ruling on the complaint based on the issues and all of the evidence before the Court.

In reading the entire transcript and reviewing all the exhibits, it is clear that the rejection letters refer to the claims at issue in this case. While it is apparent that Claimant and his counsel abhor the Courts decision, it is a decision based on the law and evidence. The Claimant is just plain wrong when he says the statute of limitations issue was waived and that “the actions of the Court of Claims in rendering of this opinion constitute an abuse of discretion making a mockery out of judicial procedure through the Courts assumption of an adversarial position as opposed to its function as an impartial judge.”

As early as 1918, this Court has consistently ruled that a State officer is without power to waive or arrest the running of the statute of limitations on a claim against the State. (McChesney v. State (1918), 4 Ill. Ct. Cl. 5.) This Court has a duty to examine each case to determine that we are acting only within our jurisdiction. This is our duty and we take it seriously. It is not taking an adversarial role. The Attorney General is subject to our rules and substantive rights of the State cannot be waived by the Attorney General. Korneder v. State (1983), 35 Ill. Ct. Cl. 1001; Isko Co. v. State (1918), 4 Ill. Ct. Cl. 171.

Even though the State Attorney General has been willing to stipulate to a claim, this Court has refused to follow the stipulation and denied that part of the claim outside the statute of limitations. (Goodwill Industries of Chicago & Cook County v. State (1982), 35 Ill. Ct. Cl. 303.) The Court of Claims was created to adjudicate the claims against the State of Illinois on the basis of the Courts determination of the law and facts. Stipulations of the parties are not binding on the Court of Claims as agreements reached between the parties will be reviewed by the Court to determine their propriety. Midwest Pediatric Associates v. State (1983), 35 Ill. Ct. Cl. 765.

The statute of limitations is jurisdictional and need not be specifically pleaded. The Court may, on its own motion, dismiss a claim based on the statute of limitations. (Illinois Bell v. State (1981), 35 Ill. Ct. Cl. 345.) The failure to comply with the statute of limitations leaves this Court powerless to enter any award. Lack of jurisdiction can be raised at any time by direct attack or collateral attack. Since the issue was brought to the Courts attention, the Court should consider the issue. Conley v. State (1982), 35 Ill. Ct. Cl. 275.

Claims for vendor payments under the IDPA Medical Assistance Program have a one-year statute of limitations. (Krakora v. State (1987), 40 Ill. Ct. Cl. 234; Simon v. State (1987), 40 Ill. Ct. Cl. 247.) The Court of Claims lacks jurisdiction to consider the merits of those vendor-payment claims which were not commenced within the time periods provided by the Public Aid Code. Kim v. State (1991), 43 Ill. Ct. Cl. 286; Simon v. State (1987), 40 Ill. Ct. Cl. 246.

This Court, in ruling on Claimants claim, has followed its duty. Claimant had a fair trial and has been afforded due process. He just does not receive the ruling which he sought. The Court found the claim to be time-barred as an evidentiary finding. This Court has followed its precedents and found it had no jurisdiction to enter an award because of the statute of limitations time-barring the claim. The motion for rehearing and other relief is denied.


author: Patchett, J.

text:
    (No. 82-CC-0356
    Joyce A. Wilson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 24, 1994.

    Copping and Carter, for Claimant.
    Roland W. Burris, Attorney General (Jim Majors, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This claim arises out of an accident which occurred on a State highway, Route 100 at Otter Creek Bridge. On December 28, 1980, at approximately 7:00 p.m., Mrs. Wilson was traveling northbound on Route 100 after leaving her place of business. She had consumed two alcoholic drinks before leaving work. At the time of the accident, Mrs. Wilson was familiar with the route, having traveled it for a period of five years. Route 100 was a two-lane highway with a 55 mile per hour speed limit.

Otter Creek Bridge lies immediately north of the intersection of Rosedale Township Road and State Route 100. Upon approaching this intersection, Mrs. Wilson noticed two cars passing one another. They occupied both lanes of Route 100. Mrs. Wilson pulled off onto the shoulder at the intersection with Rosedale Township Road to avoid a possible collision. Her car went over a deep pothole. She lost control of her vehicle, entered onto Route 100, and struck the bridge abutment. Neither of the approaching cars stopped.

The pothole in question was 64 feet from the south end of Otter Creek Bridge and three feet from the edge of Route 100. It was in the right turning radius of the intersection for Rosedale Township Road. The pothole was five feet wide and approximately ten inches deep. The pothole was in an area which was clearly on the shoulder of State Route 100, and part of the State right-of-way. It was also clearly in the turning radius of Rose-dale Township Road.

The Illinois Department of Transportation has an administrative memorandum No. 17 which would tend to establish that they did not have maintenance responsibility over the area in question. They argue that the maintenance of the intersection was the responsibility of Rose-dale Township and not them.

In order for Mrs. Wilson to prevail on her claim, she must prove, by a preponderance of the evidence, that the State breached its dúty to use reasonable care in maintaining the shoulder of Route 100, that the negligence was the proximate cause of her injuries, and that the State had actual and constructive notice of the pothole in question.

At the trial of this case, Douglas Miller testified that he had used the area involving the intersection frequently. His father lived in Rosedale. He indicated that the pothole in question was ten inches deep, five feet wide, and had been in existence for more than one year. That evidence was uncontradicted and is sufficient to establish constructive notice.

The Respondent argued that the State had no duty to maintain the road in question. This Court has held in Welch v. State (1966), 25 Ill. Ct. Cl. 270, that the State has a duty of reasonable care, which extends to maintenance of the shoulders of roadways, for the uses for which they are reasonably intended. In this case, the area in question would clearly be an area where both Rosedale Township and the State of Illinois would have some duty to maintain the area and fix the pothole. In Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 404 N.E.2d 213, the supreme court of Illinois stated that the governmental unit which controls the roadway has a duty to warn motorists of hazards adjacent to the roadway, even if the hazard itself is not within control of the governmental unit. The State clearly had constructive notice of this hazard and did not warn motorists of the hazard. In addition, they did not repair it.

Clearly Mrs. Wilson used the shoulder for its intended purposes. She pulled off the highway in order to avoid a collision and hit the pothole. In addition, Joseph Ponce, a maintenance field engineer for the Illinois Department of Transportation, testified that “* * * if the road crew is there, they have instructions to make any repairs to the immediate edge of the highway even if its in the intersection itself.” Of course, this would not establish a duty to repair the pothole, even if the maintenance crew had instructions to repair it if seen. We, however, hold that the existence of a pothole of this magnitude, within three feet of a paved highway and in existence for over one year, clearly creates a duty of the State to either repair it, or to arrange with the other jurisdiction for its repair. It was also clearly established in this case that the State did not have any formal or informal agreement with Rosedale Township as to the maintenance of the intersection area. The States administrative memorandum stating that it did not have responsibility is simply insufficient to clearly establish that they do not have responsibility.

Clearly the pothole in question was a proximate cause of the injuries. It may not have been the sole proximate cause, but it is sufficient that it was a proximate cause of her injuries. Had there been no cars, there would have been no reason for her to leave the road. However, had there been no pothole, she would have been able to leave the road safely.

The Respondent never raised any issue of contributory or comparative fault. It is true that Mrs. Wilson had two alcoholic drinks before proceeding on the highway. However, there was no evidence that she was intoxicated or that the alcohol contributed to the accident in any way. Therefore, we find that the Claimant was not guilty of any contributory or comparative fault.

The most interesting theory of the State is that the Claimant failed to exhaust all other remedies and sources of recovery pursuant to section 25 of the Court of Claims Act (705 ILCS 505/25). We find that the Claimant did, in fact, fail to exhaust her other remedies. However, the Respondent did not plead the failure to exhaust remedies as a defense. Indeed, the Respondent did not even bring the matter before the Court until the brief filed after the trial. Although the Respondent asked some questions of the Claimant and other witnesses at the trial which would tend to establish this defense, they never attempted to raise it formally until the brief. We hold that the failure to raise the defense of the Claimants failure to exhaust other remedies is non-jurisdictional. If it is not raised prior to trial, it is waived. This makes it specifically different than the failure to raise the defense of the statute of limitations or the defense that the Claimant failed to file a timely or adequate notice of intent to sue. These are clearly jurisdictional. The failure to exhaust remedies is not jurisdictional.

In recent years, this Court has decided two similar cases. In Siefert v. State (1989), 42 Ill. Ct. Cl. 8, the Court held that the State had a duty to maintain the shoulders of its highways in a reasonably safe manner. The Court reached a similar result in Sallee v. State (1990), 42 Ill. Ct. Cl. 41, in which we made an award because the State failed to warn of water on the highway even though it had notice of the defect in question.

The most difficult issue regarding liability is the fact that the pothole in question falls in the turning radius of a road intersection. Rosedale Township has responsibility for its road, and the State of Illinois has responsibility for the highway. If the pothole in question had been directly in the Rosedale Township Road, we might have reached a different result. However, since the pothole is in the turning radius, we find it to be an area where both the State and Rosedale Township had responsibilities. Therefore, for the reasons stated above, we find liability and now turn to the question of damages.

Testimony in this case established that as a result of the accident, Mrs. Wilson had a broken left wrist, facial lacerations, facial damage, a fracture of the bone of the right cheek, permanent loss of sight in her right eye, a dislocated hip, tom ligaments in her right knee, a broken rib, and shattered nose. She was hospitalized for seven weeks following the accident, and she underwent therapy for six weeks after her release from the hospital. She has a permanent three-inch scar underneath her right eye. There are also visible scars on the bridge of her nose next to the inside portion of her eyes. There is also a scar on the bridge of her nose that is a quarter circle about two inches long. The blindness in her right eye is permanent. Obviously, she had considerable pain and discomfort.

Although the Claimant had medical insurance to pay most of her bills, we have previously held, in the Sallee case cited above, that the collateral source rule is not abrogated by section 26 of the Court of Claims Act. We also ruled that this holding would be applied prospectively to all claims pending at the time of this decision. It appears that medical bills at the time of the trial in this case were approximately $25,170.87. In addition, there were travel and meal expenses of $672.63. The property loss was proved at $3,240. There were consequential services rendered by Mrs. Wilsons mother-in-law to help after she was injured in the amount of $2,167.60. In addition, there was lost time and wages from work totaling $2,673. These total $33,924.10. After factoring in the disability and the pain and suffering, we are going to award the Claimant the sum of seventy-five thousand dollars ($75,000).


text:
    (Nos. 82-CC-0716, 82-CC-0717 cons.
    Continental Insurance Co. and Norman Brothers, Inc., Claimants, v. The State of Illinois and The Department of Transportation, Respondents.

      Opinion filed October 23,1992.

      Opinion filed August 31, 1993.

    Thompson & Mitchell (Michael D. O’Keefe, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Phillip McQuillan, Assistant Attorney General, of counsel), for Respondents.
   OPINION

Patchett, J.

This is a consolidation of two claims arising out of the same set of facts, that being a collision between a tugboat and a drawbridge on the Illinois River. The first party/Claimant is Norman Brothers, Inc., owner and operator of a tugboat named M/V Marvin E. Norman. The second party/Claimant is Continental Insurance Co., which makes its claim as subrogated insurer to the first party. By stipulation of all parties, hearing in this case has been waived in lieu of briefs submitted by parties. All evidence offered is in the form of witness depositions and the parties’ exhibits.

The Respondent, State of Illinois, Department of Transportation, by and through the Attorney General’s office, is the owner and operator of the instant bridge, and admits the substantial facts as described in Claimants’ brief. Consequently, the Court finds the following to be the material facts of the case:

On May 16, 1980, Claimant, Norman Brothers, Inc., was operating the M/V Marvin E. Norman on the Illinois River near Peoria, with George William Norman acting as captain. At the same time, the Franklin Street drawbridge was operated by Clarence Johnson under the employment of the State of Illinois, Department of Transportation. Said boat is an all-steel tugboat, consisting of four decks, and is unable to pass under the said bridge while lowered. The bridge was a two-lane bridge with automobile traffic in both directions, as well as pedestrian sidewalks on each side.

Said bridge was a drawbridge which was equipped to raise both halves from the center. Said bridge was controlled by a bridge tender from the bridge house, and was equipped with flashing traffic lights, traffic gates and a traffic siren to warn oncoming cars when the bridge was to be raised. The raising of the said bridge was generally accomplished through the use of switches and levers; however, evidence also showed that the bridge was equipped with override switches which could have been used to raise the bridge if the primary operating system was inoperative. Furthermore, had either method been used, the bridge could have been completely raised within 60 seconds and raised sufficiently to allow the boat to pass under within 20 seconds. The bridge tender, however, had little experience at operating such bridges, no knowledge of the override mechanism, and no supervision.

At the time in question, said tugboat was traveling downstream towards said bridge, pushing eight barges arranged in two rows of four each. As the boat came within one-half mile of said bridge, the boat's pilot, George William Norman, properly notified the bridge tender, Clarence Johnson, that he would need the drawbridge raised.

As the bridge came within sight, it was not raised. It raised as the first two of the boat’s eight barges passed under the bridge. Despite the fact that the traEic gates had been lowered, traffic lights were flashing and the traffic siren had been blown, the bridge still was not raised as the second set of two barges began to pass under. The bridge tender made no effort to contact the boat captain by radio to inform him that the bridge could not be raised. Believing that the main operating system was malfunctioning and would not-raise the bridge, the bridge tender attempted instead to warn the captain at this point by waving his hands.

As the second set of two barges began to pass under the bridge, the captain put the boat into full throttle reverse. Despite this response, the strong current and heavy weight of the boat and barges pulled the boat into the bridge.

As a result of this collision, the MW Marvin E. Norman was laid up for repairs for 76 days, preventing Norman Brothers, Inc. from operating under a prior contract with American Rivers Transportation Company, and resulting in loss of profits. The fair and reasonable cost to effect the required repairs to Marvin Norman was $258,793.96. Claimant, Continental Insurance Co., as Norman Brothers, Inc.’s insurer, was obligated to pay out this amount for such repairs. Claimant, Norman Brothers, Inc., seeks recovery for lost profits, as well as losses unrecoverable under the insurance contract with Continental. Claimant, Continental Insurance Co., seeks the maximum recovery allowable in this Court, $100,000. Based on these facts, the Respondent does not refute that the State of Illinois, Department- of Transportation was clearly negligent in allowing Clarence Johnson to operate the Franklin Street bridge untrained and with no supervision. Furthermore, the State of Illinois, Department of Transportation was also negligent in not maintaining said bridge in a properly working manner.

While Respondent admits liability, Respondent raises two issues which may affect judgment in this case. The first of these is Respondents claim that the State is entitled to a set-off against the Claimant, Norman Brothers, Inc.’s claim in an amount equal to that received by Claimant from Co-Claimant, Continental Insurance Co. This claim is raised pursuant to Ill. Rev. Stat., ch. 37, par. 439.26 which states:

“The granting of an award under this Act shall constitute full accord and satisfaction. There shall be but one satisfaction of any claim or cause of action and any recovery awarded by the Court shall be subject to the right of set-off.”

Since Continental has already paid out a sum of $258,793.96 to Claimant, Norman Brothers, Inc., pursuant to its obligations under its insurance contract, such a set-off from the maximum award possible in this Court of $100,000 would completely bar Norman Brothers, Inc. from recovery on its claim for $75,050.64.

In support of this contention, Respondent cites several prior decisions of this Court. The Claimant also cites several prior cases to support its contention that said payment should not entitle the State to a set-off. In fact, this Court has taken conflicting positions on this issue in the past, at times allowing a set-off for any monies received from any source whatever, and at other times only allowing a set-off in instances where monies have been received from a tortfeasor.

These conflicting precedents, however, were put to rest by this Court in the recent case of Sallee v. State (1990), 42 Ill. Ct. Cl. 41. The Court noted that, while not explicitly bound to do so by its enabling act, this Court has applied traditional Illinois common law where it does not conflict with the act itself. Such common law includes a “collateral source rule * # # [which] holds that monies received from a source independent of the tortfeasor may not be deducted from damages.” (Peterson v. Bachrodt Chev. Co. (1978), 61 Ill. App. 3d 898, 378 N.E.2d 618; Sallee at 15.) This Court further explained that the logic of such a rule is that “an injured party has prudently entered into an insurance contract and should be allowed to benefit from it * * *. Failure to apply the collateral source rule allows the wrongdoing, throws the burden on the insured, and rewards those without insurance.” Sallee at 16.

As a result, it is now the policy of this Court to allow set-offs pursuant to section 26 of the Court of Claims Act (705 ILCS 505/26), only when monies received are from the State or another tortfeasor. Since this decision was intended to be “applied prospectively to all claims pending at the time of this decision,” (Sallee at 16), and since the instant case was filed in 1981 and was pending in 1990 when Sallee was decided, the collateral source rule will be applied in the instant case. No set-off shall be allowed to the State.

The second issue raised by the Respondent is in regards to the amount of damages. Claimant, Norman Brothers, Inc., claims a total of $75,050 in unrecovered damages. This sum includes a $5,000 deductible not paid by Continental Insurance, which is clearly recoverable by this Courts precedent as enunciated in J. E. Vickers v. State (1958), 22 Ill. Ct. Cl. 659. They also claim the sum of $9,990.12, paid to maintain an engineer on board the M/V Marvin E. Norman. As this claim represents a necessary expenditure incurred in the process of repairing damage to said vessel, this too is properly recoverable from the State. Respondent does not contest this claim.

Respondent does, however, contest Claimant, Norman Brothers, Inc., claim of $60,060.52 in lost profits. Claimant calculated this claim by multiplying the number of days the Marvin Norman was laid up in repairs (76) by the amount Claimant estimates his profit per day would have been had the Marvin Norman been operational ($790.27 per day).

Claimant supports his claim of $790.27 per day loss with evidence of a contract entered into between the Claimant and American River Transportation Company. The contract provided for $1,850 to be paid to Claimant each day that the Marvin Norman was engaged in work for American Rivers. Claimant estimates, as he may reasonably do with certainty, that the daily costs incurred by him in operating the Marvin Norman would be $939.73 for labor, $90 for food, and $30 for oil. With these expenses subtracted from $1,850, Claimant estimates that he has suffered a net loss of $790 per day for 76 days.

Such calculations are certainly sufficient to meet the requirements of traditional Illinois common law as enunciated in Klucznik v. Nikitopoulos (1987), 503 N.E.2d 1147, which stated, “* * * the law does not require a plaintiff to establish lost profits with mathematical accuracy.” However, as observed in Drs. Sellke v. Twin Oaks (1986), 491 N.E.2d 912, 917, “* * * it is well established that lost profits are not a proper element of damages where proof of these profits is based on speculation or conjecture.” Furthermore, # * the long-standing rule in Illinois is that lost profits may be a measure of damages where a business is interrupted, but the business must have been established prior to the interruption so that evidence of lost profits is not speculative. [Citations omitted].”

Claimants contract with American Rivers, which was in effect prior to the collision complained of herein, provided for two levels of payment. As supported by the evidence on record, the instant contract provided that Claimant be paid $1,850 each day that the Marvin Norman was in operation, resulting in a profit of $790.27 per day. However, the contract also provided, under paragraphs six and seven, for a lower payment of only $500 per day that the Marvin Norman “is laid up for lack of work.” Respondent is correct when it points out that this provision demonstrates that the parties contemplated the possibility of a lay-up wherein Claimant would not be receiving $1,850 per day, but instead, only $500 per day.

The Claimant replies by asserting that the Marvin Norman would be actively operating under contract every single one of these 76 days, had the collision not occurred. The Claimant believes this assertion requires no evidence to support it. Instead, Claimant merely asserts that American Rivers would not obligate itself to pay $500 per day for a vessel it did not need unless it was almost absolutely certain the vessel would be used every day, that the Marvin Norman was a big vessel, and that correspondence between American Rivers and Claimant showed that it was unlikely that the vessel would be laid up. Unfortunately, Claimants assertions miss the boat.

The only evidence on record in this case is an undisputed contract to pay at least $500 per day, and possibly $1,850 should the services of the Marvin Norman be utilized by American Rivers. It is this contractual relationship only which can trace its establishment to a point in time prior to the instant collision as required per Drs. Sellke et al. This contract alone, according to Claimants own assertions, only entitles Claimant to $500 per day. In order for Claimant to be entitled to $790.21 in profit per day, Claimant must be engaged in active duty on behalf of American Rivers. Presumably, this would have been reflected in some form of work order, or similar request for performance, by American Rivers. No such request has been introduced as evidence into the record. At best, Claimant might argue that he was in the middle of one such task when the collision occurred. However, no evidence has been offered to establish how long this job would have taken.

As a matter of fact, one can only speculate what American Rivers would obligate itself to do. At best, therefore, Claimant can speculate that American Rivers would have actually requested 76 days of continuous service, and that the Marvin Norman would have been able to provide 76 days of continuous service. To base an award upon such speculation would be pure conjecture, It would violate both the traditional common law and precedent in Sioux City et al. v. State (1978), 32 Ill. Ct. Cl. 603. In Sioux City, the Court received evidence that Claimants “losses resulting from the deprivation of the use of the Waverly amounted to $800 per day.” The Court found, however, that this figure was “somewhat uncertain,” and thus refused the claim of $800 per day, instead awarding $500 per day.

Given that the Claimant in the instant case had made an even less than “somewhat uncertain” showing of evidence regarding lost profits than the claimant in Sioux City, this Court will refuse a $790.27 per day award. Instead, we award the amount which is derived from the only relationship clearly established in the record, $500 per day.

As for the claim of the Claimant, Continental Insurance, this Court has repeatedly recognized the claims of subrogated insurers such as in Lester R. Borum & Emmco Insurance Co. v. State (1969), 26 Ill. Ct. Cl. 328, 332 and Vickers (1958), 22 Ill. Ct. Cl. 671.

Therefore, we award the Claimant, Norman Brothers, Inc.:

Insurance Deductible $ 5,000.00

Engineer on Board/Repair 9,990.12

Lost Profits: 76 days @ $500.00 per day 38,000.00

Total $52,990.12

and Claimant, Continental Insurance, $100,000.

OPINION

Patchett, J.

This claim arises out of a tugboat accident which occurred March 16, 1980, on the Illinois River. A tugboat, named M/V Marvin E. Norman, collided with a drawbridge. Norman Brothers, Inc., was the owner and operator of the tugboat. Continental Insurance Co. makes a claim as subrogated insurer to Norman Brothers, Inc. The hearing was held April 6, 1987, and in September 1987, a brief was filed by the Claimant. The Respondent filed a brief in November 1987. The case was transferred to a new commissioner in September 1989. A recommendation by that commissioner was filed July 12, 1992. Oral argument was held January 29, 1992. An opinion was filed October 23,1992.

In that opinion, this Court granted Claimant, Norman Brothers, Inc., $52,990.12, and Claimant, Continental Insurance Co., the sum of $100,000. The Respondent filed a motion for a new hearing on the issue of whether or not the subrogation claim was a separate claim from that of the owner of the tugboat, and on a closely-related issue as to whether the jurisdictional limit of $100,000 in tort actions would apply to this case.

The first issue that the Court must consider on the motion for rehearing is whether the two causes of action in this case are actually one claim, because Continental Insurance Company comes before this Court as a subrogee. If these actions are one claim, or if they constitute a recovery to or for the benefit of Norman Brothers, Inc., in excess of $100,000, then the award should be modified to apply the jurisdictional limit. If, regardless of how they are labeled, how the claims are brought, or in whose name, they are separate claims, or they are not to, or for the benefit of Norman Brothers, Inc., then, the jurisdictional limit will not be applied.

It is clear that in prior cases before this Court, we have consistently allowed recovery by both a claimant and the claimant’s insurance company as a subrogee. In Borum & Emmco Insurance Co. v. State (1969), 26 Ill. Ct. Cl. 328, we allowed a truck owner and his insurance company to both recover from the State because of the negligence of the State. In J. E. Vicker &F. N. Byrn, Co-partners, d/b/a Delta Towing Company & Westchester Fire Insurance Company v. State (1958), 22 Ill. Ct. Cl. 659, a case with strikingly similar facts, we allowed the towboat owner, and the owner’s insurance company to both recover their respective losses as the result of the damages. However, the jurisdictional limit set forth by statute was not an issue in those cases.

The jurisdiction of the Illinois Court of Claims is provided in part by section 8 of the Court of Claims Act. (705 ILCS 505/8.) Norman Brothers, Inc.’s claim clearly sounds in tort. The jurisdictional limit on such actions is clearly set at $100,000. The precise wording of that section of the statute is clearly controlling in the present case. It states “that an award for damages in the case sounding in tort, * * * shall not exceed the sum of $100,000 to or for the benefit of any claimant.”

This Court refused to exceed a single $100,000 payment when we granted $100,000 to the administrator of an estate in a wrongful death action, but refused to pay the additional funeral bill of $2,409.50 because the total would have exceeded the jurisdictional limit previously alluded to. (Peterson v. State (1984), 37 Ill. Ct. Cl. 104.) It is worthwhile to note that in the Peterson claim, despite the fact that the decedent left a widow and two children, the administrator filed a claim for wrongful death and claim for funeral expenses. In a case decided in 1989, Copland v. State (1989), 41 Ill. Ct. Cl. 125, this Court awarded the full $100,000 maximum award to the estate of the decedent, and additional $100,000 maximum awards to the father, mother, and sister of the deceased. Each of the family members brought individual claims in that action as well as the action of the special administrator of the estate. Clearly applying the Copland rationale to the Peterson case, this Court could at the present time award a maximum award to the administrator of an estate, as well as additional awards to family members making a claim under the wrongful death action. This Court has never before reached the issue of whether each claim must be brought in a separate name in order to be able to reach this result. A requirement such as that would seemingly place form over substance. So long as the maximum jurisdictional amount of $100,000 is not exceeded to, or for, the benefit of a single claimant, the statute is complied with. This Court has clearly ruled that in wrongful death situations, the claim of the estate and the claim of surviving family members are not to be considered to or for the benefit of the same claimant, even though surviving family members are almost certainly the beneficiaries of the estates recovery. The award to the surviving family members for loss of society is clearly separate from the award made to the estate for pre-death pain and suffering, hospital, and funeral expenses. The claims of the family members are not derivative of the estate, nor is the claim of the estate derivative of that of the family members.

The Claimant pointed out in his reply to the motion for rehearing that the statute governing the Court of Claims allows the Court of Claims to establish rules. The Court of Claims has pursuant to that statutory authority adopted rules; however, none of those rules directly apply to the present situation. In addition, the Civil Practice Act shall apply to the proceedings before the Court of Claims except where that act would be in conflict with specific rules already adopted by the Court of Claims. The Claimant has pointed out that section 2 — 403(c) of the Code of Civil Procedure (735 ILCS 5/2 — 403(c)), states that any action brought by virtue of the subrogation provisions of any contact, or by virtue of subrogation by operational law shall be brought either in the name or for the use of the subrogee. We feel that this provision clearly applies to the Court of Claims, but only governs the manner or name in which the claim may be brought, and does not govern whether or not the claim of the insurance company is a separate claim from that of the tugboat owner for purposes applying the $100,000 jurisdictional limit.

After this Court granted the motion for rehearing and heard oral argument on the issues addressed in this opinion, the Court allowed the Claimant and Respondent to file for such additional authorities or memorandum of law as they desired. Claimants filed a supplemental memorandum of law which argued in part that by the very language of the statute setting forth the jurisdictional limit, specifically that part which refers to “* * * if a like cause of action would lie against a private person or corporation in a civil suit” would qualify the insurance company in this case as a claimant. We think, based on prior cases of this Court which have considered the question of whether or not an insurance company bringing a subrogation action is a claimant, the language of the jurisdictional limit statutes set forth above, and the argument of the Claimant, that in fact the subrogation action brought by Continental Insurance Company is a separate claim.

The question remains, however, whether or not money paid to Continental Insurance Company as a subrogee violates that portion of the jurisdictional limit statute which says that this Court cannot pay more than $100,000 to or for the benefit of a single claimant. Since the subrogation claim is derivative of the claim by Norman Brothers, Inc., can we exceed a single $100,000 payment, regardless of whether it involves one claim or two, or one claimant or two claimants? Any payment made to Continental Insurance Co. would arguably be for the benefit of Norman Brothers, Inc., even if it was a separate claim made payable to a separate claimant.

Black’s Law Dictionary defines behalf as benefit, support, defense, or advantage. Since paying Continental Insurance Co. might not create a present advantage or benefit to Norman Brothers, Inc., we must further examine the basis of subrogation. As cited by the Respondent in his brief, the case of Aupperle v. American Demnity Co. (1979), 75 Ill. App. 3d 722, 31 Ill. 3d 523 holds that the subrogee can have no greater right than a subrogor, and can enforce only such rights as a subrogor could enforce. That court held when a subrogor waived his right to mechanics’ lien, the subrogee’s rights in that regard were likewise waived. The supreme court of Illinois in McCormick v. Zander Reum Co. (1962), 25 Ill. 2d 241, 184 N.E.2d 882, established the rule cited above. In so doing, they held that a non-negligent employer could not seek reimbursement from a third party because the employee himself at that point could not assert the claim. Similarly speaking, if Norman Brothers, Inc., would have a right under the Court of Claims statute to only $100,000, how could Continental Insurance Co. enforce rights in excess of that?

Finally, the appellate court of Illinois in the case of Reich v. Tharp (1988), 167 Ill. App. 3d 496, 118 Ill. Dec. 248, in a well-reasoned opinion regarding many issues involving subrogation, held that a subrogee can have no greater rights than the subrogor, and the subrogee must step into the shoes or be substituted for the subrogor. In addition, that court held that a subrogor must possess a right that he can enforce against the third party, and the subrogee must seek to enforce the subrogors right. There is absolutely no doubt that if there was not a jurisdictional limit in the Court of Claims, Continental Insurance Co. would be able to pursue recovery against the State of Illinois because in good conscience, the State of Illinois is responsible for the damage in question. But if Continental Insurance Co. must stand in the shoes of Norman Brothers, Inc., it would appear to be clear that the $100,000 jurisdictional limit would prohibit a recovery in excess of that sum.

In summary, ultimately then the controlling issue in this claim is not whether or not there are multiple claims, or separate claims, or separate claimants, but whether or not a subrogation action, which will result in an aggregation of the awards of more than $100,000 violates that part of the jurisdictional statute cited above which prohibits awards and tort cases in excess of $100,000 to or for the benefit of any claimant. It is clear from reviewing the applicable law that subrogation actions are by their very definition to or for the benefit of the subrogor. Therefore, we hold that the position taken by the Respondent in the motion for rehearing should be upheld, and the total award in this claim will be reduced to $100,000.

It then remains for this Court to decide what each of the Claimants should receive. The subrogation action is derivative, therefore, the underlying claim of Norman Brothers, Inc., should be given preference. Therefore, we award Norman Brothers, Inc., the sum of $52,999.12, and we award Continental Insurance Company the sum of $47,000.88.