text:
    (No. 89-CC-2162
    Albert S. Davinroy, Claimant, v. The State of Illinois, Respondent.

      Opinion filed October 28, 1991.

    Robert Rice, for Claimant.

      Roland W. Burris, Attorney General (Mary Elise Walden, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

Claimant alleged that he entered into a contract with the State of Illinois Department of Transportation (Department) to be the general contractor to complete a project at the Bowman Avenue pump station in East St. Louis, Illinois. He further alleged that the contract provided for liquidated damages in the event of delays caused by the Claimant. The project was delayed 138 working days and the Department withheld liquidated damages from the Claimant. The Claimant alleged that he did not cause the delays. Claimant seeks $38,640.00 which he claims the Department improperly withheld pursuant to the contract.

The purported brief of Claimant is of little help to the Court in resolving the issues in the case. The Department’s failure to file a brief in support of its position is also not conducive to the resolution of the case. However, the Court will proceed to a decision in this case without the benefit of substantial input from the parties.

The Facts

The Claimant was awarded a contract with the State of Illinois on May 15,1980, to modify the Bowman Avenue pumping station in East St. Louis, Illinois. The work on the contract began on July 10, 1980. Claimant was the general contractor on the project. The project called for replacing and installing larger pumps in the station and to install a generator that would automatically start when power failed at the station. The pumping station kept highways, Routes 70 and 40, clear of water that would come onto a depression in the land.

Because the possibility existed that a vehicle with flammable liquids could overturn on the depressed area and flammables could enter the pumping station, a foam system with a sensor had to be installed. The original pumping station did not have this protection.

The project began in 1980 and ended in 1986. The total contract price was $1,680,214.00. A change order increased the total amount by $92,675.00. The Claimant’s company was involved in a portion of the work. Subcontractors were also used and Dron Electric had a contract for about 50% of the work.

When Claimant received final payment, the Illinois Department of Transportation assessed a penalty against Claimant. The penalty was for 138 working days and appears as liquidated damages in the Department’s authorization of contract charges. The penalty totaled $38,640.00. The penalty was for liquidated damages as defined in article 108.10 of the standard specifications. There were 160 working days assigned to the project. The project took 298 working days. Claimant’s Exhibit No. 1 indicates that Claimant concurred in the processing of the deduction. Claimant believed this agreement to concur still allowed Claimant to sue in the Court of Claims to recover the monies withheld.

Claimant testified the 138 days of delay were not within his control. Claimant asserts that section 108.04, section 5 does not allow working days to be charged against Claimant’s firm for conditions such as strikes, acts of God, problems with supplies, subcontractors, and other things out of his company’s control. Claimant believed the cause of the delays was attributable to Dron Electric and not Claimant. Claimant had problems with Dron Electric who was the supplier of the foam system. They also had problems with the sheet metal company that had the ventilating system contract. Claimant testified he brought the problems with Dron Electric to the Department’s attention. At some point, he also discussed bringing in a different electrical contractor to take over for Dron. Dron responded by indicating if anyone worked on their equipment, all warranties and guarantees would be revoked. They also threatened that if anyone took over Dron’s work, that this would constitute acceptance of Dron’s work. Dron Electric provided Claimant with a letter dated July 26, 1984, indicating a response to IDOT’s questions on the project. The response indicates some problems were Claimant’s responsibility and others were Dron s responsibility.

Claimant admitted that as general contractor he was responsible for the work of the subcontractors. Claimant also admitted the contract ran over about four years from the time it was to be completed. The Department of Transportation had early in the contract advised the Claimant that Claimant was not providing progress schedules as required in a timely fashion. The Department sent numerous letters to Claimant which showed the Department’s concern at the rate of the completion of the contract. The Department also sent Claimant correspondence indicating they had not received specifications for approval of equipment from Claimant as required.

Claimant testified that his work and responsibilities as contractor on this job did not depend upon Dron Electric completing work. It was an unusual contract in that the electrical part of the contract was 50%. The electrical end of the contract called for a longer completion time than Claimant’s own work did.

Claimant had 160 working days to complete his work. However, the Department cut off working from the first freeze until April or May. Claimant also testified he warned the Department at the pre-construction meeting that the supplier of the pumps could not manufacture the pumps in time.

While the contract ran over four years, Claimant was only penalized 138 working days. He believed that 98% of the 138 days was the fault of the suppliers and subcontractors. Dron Electric was accountable for 90% of the delay in Claimant’s opinion. Fairbanks-Morris Company, the supplier of the pumps, had some blame for the delay as a pump they provided failed and had to be taken out. Claimant believed that the sheet metal provider was two to three percent responsible for the delay. Claimant admitted that he was responsible for two to three percent of the delay.

The Respondent rested on the departmental report. The departmental report indicates that a pre-construction conference was held on June 11,1980. The Claimant was advised that he should specifically state what documentation was required from the manufacturer when ordering materials and he was informed that materials such as pumps must be approved by the district engineer prior to use on the project. On July 18, 1980, the Claimant was advised by the Department of the importance of a progress schedule and of equipment submittals. On July 31, 1980, the Claimant was again advised of the importance of a progress schedule and he was advised that the Department’s contract was solely with Claimant, and that Claimant was responsible for the work under the contract, the scheduling of subcontractors, and the obtaining of proper documentation.

The progress schedules submitted by Claimant were late and did not contain the proper detail and documentation. These inadequacies contributed to the delay on the project. The Department sent numerous letters to Claimant expressing concern for the completion of the project within the days assigned thereto. The Department also had numerous meetings with Claimant in this regard. On January 21, 1983, the Department requested Claimant to state his position on the delays and the Department’s assessment of working days in writing. The Claimant made no response. The Department continued assessing working days to the project. However, the Department’s letter of March 9,1983, indicates the following, in respect to Claimant’s performance of the contract,

“The primary reason for this poor progress is the contractor's inability to cause his subcontractors and suppliers to prepare and submit shop drawings, catalog cuts, wiring diagrams and erection plans. This failure to provide acceptable and timely submittals has resulted in unacceptable order and delivery dates of equipment.”

A final inspection was performed in June of 1984 and a punch list provided the Claimant. The Claimant was given until September 4, 1984, to resolve the differences before working days would be charged on the project. The inspection of August 12, 1986, showed that the project was finally completed.

The departmental report points out that section 109.09 of the standard specifications provides that the contractor must file a claim in the Court of Claims within 60 days after acceptance of the final payment or that acceptance will constitute a release and waiver of all rights under the terms of the contract. The final payment was accepted by Claimant on December 2, 1987.

The contract incorporated the provisions of the standards and specifications for road and bridge construction adopted October 1, 1979. The contract required Claimant’s work to be completed within 160 days. A pre-construction conference was held on June 11,1980. The contractor indicated all the electrical work would be subcontracted. The contractor was informed of the proper forms for subcontractors and of approval which must be received as to subcontractors. The contractor was also advised of approvals required as to materials. The contractor indicated the generator required normally takes 13 months to manufacture but that one in the process of being manufactured had been found and it could be available on August 31,1980. The contractor was reminded that when ordering materials for this job, he should clearly state the specifications the materials must adhere to, what documentation and certification was required from the manufacturer, and that all materials are subject to State of Illinois inspection with sampling to be performed at the source when required and when a State inspector is available for performing the inspection.

On July 18, 1980, the Department returned the Claimant’s progress report for corrections. The July 1980 portion of that progress report was approved. The request for approval of subcontractor Dron was returned for revision. The subcontract to Dron was for 45% of the work. The contract only allowed a total of 49% of the contract to be sublet and Dron alone was to receive 45%. The $56,631.00 of general electrical work was approved by the Department to allow Dron to perform initial items pending resubmittal of the proposed contract.

The Department warned Claimant on July 21,1980, that the completion of many contract items within the time limits specified under the contract was significantly dependent upon timely equipment submittals by Claimant. The Department advised Claimant that working day charges may not be suspended while waiting for the delivery of equipment that was not timely submitted and ordered.

On August 20,1980, Claimant requested that the 50% limitation on subcontracting not be applied because of the unique electrical nature of the contract. This request was denied and Claimant was advised that the project was subject to all of the standard specifications for roads and bridges. The Claimant was hesitant to file his progress schedule but the Department requested the progress schedule and advised Claimant of the importance of the schedule. Claimant was advised he must challenge any disagreements on working days charged within seven days to initiate a review. Claimant was advised again that the only contract the Department recognized was with Albert Davinroy Construction Company and that Claimant was solely responsible for the work under the contract. The Claimant was advised he must fully comply with all terms of the contract before final acceptance.

Claimant filed a progress schedule which was approved through June of 1981. A revised progress schedule from Claimant was required by June 1, 1981. On August 6, 1981, a revised progress schedule was submitted by the Department. On November 24, 1981, the Department wrote its fifth letter to Claimant in regard to the main storm water pumps. The Department would not approve the pumps because of a failure of the pumps to meet contract requirements. The Claimant had failed to reply to the Department’s four prior letters.

The Department warned Claimant by letter on December 29, 1981, that approximately 45% of the contract had been completed and 82 of the 160 working days had been used up. The Department further warned Claimant that he may not be able to complete the contract within the contract time limit and asked Claimant to give these considerations immediate attention. However, the December 23, 1981, weekly report of the resident engineer indicated the project could still be completed on time.

The Department wrote again to Claimant on June 28, 1982. Claimant was advised that as of June 23,1982, only 50$ of the contract work had been completed but that Claimant had used 105M days of the 160 working days allowed for the project. The Claimant was advised that experience had shown that final items on similar contracts could take moré time than expected. The Department requested an increased effort by Claimant to get the project back on schedule. The Department was only charging half working days because the failure of Pump No. 1 was impeding the potential rate of work on new pump installations. An agreement was reached with Claimant to repair Pump No. 1 at an agreed price of $15,500.00. The Department further warned Claimant that as of July 30,1982, the Department would again be charging full working days against the Claimant as the pump should be repaired by then.

The Department reminded Claimant that after 26 months into the contract the Department had not yet received an acceptable submittal for the fire control system. Claimant was told that any delays caused by nonapproval or delivery of this system would not be grounds for an extension of time under the contract.

The Department specifically advised Claimant that there was a significant potential for a project overrun leading to liquidated damages. Claimant was advised to give this matter serious attention.

Claimant, on July 16, 1982, questioned the Department’s charging full working days beginning July 30, 1982. He objected and advised the July 30, 1982, date did not provide sufficient time to complete repairs on the pump. Claimant was advised to request an extension in writing. Claimant was advised again that the fire protection system still had not been approved.

A job site progress meeting was held on September 3, 1982. The Claimant was optimistic that the progress would improve and the project would be completed in the fall of 1982. The Claimant indicated he expected to purchase equipment and install it without approval. The Department advised Claimant this procedure was Claimant’s risk.

On August 25, 1982, Claimant was advised that 126.5 of the 160 working days had been used. The Department expected the total working days to be expended by October 6, 1982. Any awarded work after that date would incur a charge of $280.00 per working day for liquidated damages. On September 9, 1982, the Claimant concurred in general with the August 25,1982, letter from the Department as to working days used and liquidated damages.

On October 6,1982, Claimant was advised that 154 of the 160 working days had been used but only 63% of the project had been completed. The Claimant had done no visible activity in the areas pointed out to Claimant requiring work in the Department’s letter to Claimant of September 29,1982. The Department advised Claimant that the progress on the project was totally unacceptable. Claimant was advised that article 108.11 of the standard specifications defined Claimant’s lack of progress as grounds for default. The Department began considering initiation of the default mechanism.

On November 1, 1982, Claimant was advised that liquidated damages were accruing and that the Department was still seriously considering its position on a default. The Claimant still had not submitted shop drawings for the fire control system as of November 1, 1982.

On November 16, 1982, a meeting was held. The Claimant advised that he would submit the required progress schedule by November 24,1982. The schedule had been due November 12, 1982. By December 14, 1982, the Department still had not received a revised progress schedule from Claimant. The sump pump prices and fire control system drawings, overdue on November 12,1982, also had not been submitted.

At a jobsite meeting on November 29,1982, Claimant indicated he felt the working days being charged were too harsh. The Department countered that the resident engineer had been particularly tolerant with Claimant. As of December 6, 1982, only 193 working days were charged when the Department could have charged him 224.5 working days. The Department requested any challenge to the working days charged should be made in writing by Claimant and supported by specific reasons.

On December 14, 1982, Claimant was advised of the serious situation where liquidated damages were being charged against the delivery of equipment that had never been properly submitted for approval. Claimant raised objection on December 23, 1982, to working days being charged relating to the sump pump problem. On January 21, 1983, the Department advised Claimant that no working day charges were being made in regard to the sump pump installation or fire control system. Claimant was advised that because Claimant had failed to provide a valid progress schedule, that, therefore, the resident engineer had defined the main storm water pumps as the controlling item and all recent working days were charged against that work alone. As of March 9, 1983, Claimant had been charged with 198 working days and the project was only 78% complete.

The Department found the primary cause of the poor progress to be the contractor’s inability to cause his subcontractors and suppliers to prepare and submit shop drawings, catalog cuts, wiring diagrams and erection plans. The fire protection system submittal was not submitted by Claimant until September of 1982, some 16 months after the contract award. The submittal was incomplete and not acceptable. As of March 1983, an acceptable submittal had not been made by Claimant.

As of April 5, 1983, Claimant had filed no written objections to the resident engineer’s selection of controlling items under the contract in the absence of a valid progress schedule and therefore the charging of working days against Claimant.

On April 20, 1983, the Department rejected the submittals by Claimant for the fire protection system as inadequate pursuant to article 108.04. The Department advised Claimant that working day charges would be reinstituted as of May 1, 1983.

Another meeting was held on November 3,1983. By this time, Claimant had had his prequalification to bid rating on other projects removed by the Department. Claimant requested reinstatement. Claimant advised he expected to complete this project within 90 days. Claimant was advised that liquidated damages had to be resolved before final payment. Claimant was informed that any challenge to working day charges must be presented in writing.

A final inspection of this project was completed on June 7, 1984. By letter of July 18, 1984, 64 items of deficiency requiring correction were noted to Claimant. Additionally three systems required complete field testing and three areas of minor work were required before final acceptance. The Department allowed until September 4, 1984, for Claimant to make the corrections, allow for testing, and to allow Claimant to make the minor repairs before working days would be charged.

On August 26, 1986, almost two years later, an inspection indicated the areas of deficiency were basically corrected. On August 26, 1986, Claimant was advised to submit a request to reduce working days charged and supportive documentation required. The Department had been asking for such request and documentation since November 3, 1983. Claimant had not submitted any written request or documentation. The Department advised Claimant that the Department would initiate deduction of the amount assessed for liquidated damages from the contract value if supportive documentation was not submitted by Claimant to the Department of Transportation by September 15, 1986.

On September 22, 1986, the Department issued a fact sheet. The working day overrun was assessed at 138 days for liquidated damages of $38,640.00. On December 18,1986, liquidated damages of $38,640.00 were assessed as a contract charge. There were 160 working days awarded and the final total was 298. The authorization for contract charge indicated that Claimant’s concurrence was obtained to process the deduction.

Final payment of the contract could not be made under the contract because of the financial condition of the Claimant. Certain subcontractors would not sign releases and Dron sued Claimant. The Department retained enough monies to pay these subcontractors. Dron had a court order for payment of $70,308.18 from Claimant.

The departmental report indicates several letters to Mr. Davinroy’s attorneys concerning setting up a meeting to discuss liquidated damages and to file a written request to reduce working days. A meeting was scheduled for July 12,1984. Claimant failed to appear at the meeting. On October 8, 1986, Claimant’s attorney sent a letter to the Department regarding Claimant’s position. The Department, by letter of November 3, 1986, indicated to Claimant that detailed documentation was required to support Claimant’s position that all reasonable and proper actions were made by the contractor to acquire the critical items and to show that the delays were not any fault of the contractor.

The Law

Where the evidence presented to the Court shows more probably than not that the Respondent should have granted reasonable extension of time for delays due to unforeseen causes beyond Claimant’s control and without the Claimant’s fault or negligence, then and in that event Claimant would be entitled to all retainage held by the Department as liquidated damages. (Fruin-Colnon Contracting Co. v. State (1967), 26 Ill. Ct. Cl. 138.) The Department should allow an extension where the cause of the delay is not the fault of the Claimant. (McHugh Construction Co. v. State (1971), 27 Ill. Ct. Cl. 232.) In an action involving a construction contract, it is inevitable there will be some delays and a delay will be tolerated if it is reasonable. J.F. Inc. v. State (1988), 47 Ill. Ct. Cl. 5.

In considering the liquidated damage clause of the contract, the contract should be construed least favorably to the drafter. (McDonnell-Douglas Automation Co. v. State (1983), 36 Ill. Ct. Cl. 47.) However, it is Claimant’s burden to prove the contract, the breach of contract, and his damages, if any. (In re Application of Lopez (1987), 39 Ill. Ct. Cl. 315; Harris v. State (1989), 41 Ill. Ct. Cl. 184.) Pursuant to section 790.140 of the Court of Claims Regulations, departmental reports may be offered as prima facie evidence of the facts they contain. Menard County Health Department v. State (1989), 41 Ill. Ct. Cl. 200.

In the present case, the contract contained a liquidated damages clause. The Department withheld $38,640.00 from Claimant as liquidated damages for failure to complete the project within 160 working days. The departmental report indicates Claimant was assessed 298 working days to complete the project. The departmental report is replete with notice to Claimant of the working days assessed along the way, numerous warnings to Claimant of his impending failure to complete the project on time, and warnings that liquidated damages would accrue and were continuing to accrue. The departmental report indicates numerous failures of Claimant to submit progress schedules, show drawings and other required documentation. The Department gave numerous extensions to Claimant and appeared liberal in not assessing working days and in granting extensions to complete work. The Department also consistently and often requested Claimant to provide documentation if he had any complaints or objections concerning the working days assessed. Claimant was requested over and over to make a written request with supporting documentation. No such written request with documentation was ever presented to the Department of Transportation. A meeting was set up to discuss these matters. Claimant failed to appear and even after the Department agreed to reschedule the meeting, he never arranged a new meeting.

Claimant suggests the delays were that he had problems with Dron and with the sheet metal company. Here the contract ran over four years. This is beyond a reasonable delay. Claimant has failed to meet his burden of proof. Claimant’s broad assertions that others were responsible without proof do not show that the delays assessed were beyond the control of Claimant. The Court requires no less documentation than the Department of Transportation was requesting of Claimant.

It is also noteworthy that Dron had a judgment against Claimant. If Dron were in breach of the subcontract, it seems unlikely Dron would have prevailed against Claimant. What is required in this Court is that Claimant show that specific working dates charged to Claimant should not have reasonably been charged to Claimant and the specific reasons they should not have been so charged.

Based on the Claimant’s failure to meet his burden of proof, it is therefore ordered, adjudged and decreed that this claim be denied.


source: Caselaw Access Project

author: Sommer, J.

license: Public Domain

text:
    (No. 89-CC-2196
    Brand, Beck & Hoover, Associates, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 24, 1992.

    Gary A. Smiley, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

This vendor-payment action identifies the Claimant as “Brand, Beck & Hoover Assoc.,” apparently a physician group practice, and the Illinois Department of Public Aid (IDPA) as the responding agency. The claim seeks payment for radiology services rendered to patient McCalla, an IDPA recipient, during the period May 12 through July 25, 1988. The Claimant’s complaint, filed with this Court on January 19, 1989, lists the patient’s name and IDPA-assigned recipient ID number (BIN); however, in the complaint there is no specific allegation or exhibit, capable of being investigated or verified, that Claimant’s physician’s charges for any of the subject services had been invoiced to IDPA for payment, though the bill of particulars states IDPA was “billed.”

Respondent has moved for summary judgment on this claim pursuant to section 2—1005 of Illinois’ Code of Civil Procedure (Ill. Rev. Stat., ch. 110, par. 2—1005), raising the issues discussed herein.

In its motion, the Respondent contends: first, that the Claimant group practice is not an enrolleeparticipant in its Medical Assistance Program (MAP) and thus has no standing to bring this action (Ill. Rev. Stat., ch. 23, par. 11—13; Pinckneyville Medical Group v. State (1988), 41 Ill. Ct. Cl. 176); second, that the complaint’s failure to identify the physician or physicians who performed the services prevents IDPA from investigating the claim; and third, there is no allegation here that a physician’s charges for any of these services had been invoiced to the Department in the manner and within the time prescribed by IDPA Rule 140.20 (89 Ill. Adm. Code §140.20; and Topic 141 of IDPA’s MAP vendor Handbooks). These are the same deficiencies which the Court found to require dismissal of a similar claim in University of Chicago Professional Services Offices v. State (1990), 42 Ill. Ct. Cl. 277.

Sections 439.8 (a) and (b) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, pars. 439.8(a),(b)) and section 11—13 of the PAC offer vendor-claimants the opportunity to have this Court review and assess IDPA’s prior “action taken” (section 790.50(a)(3) of the Court of Claims Regulations), in response to an administrative claim, or invoice, which the vendor has previously submitted and the Department has failed or refused “to pay * * # in whole or in part” (PAC §11—13). The Court’s function, in section 11—13 actions, is that of assessing the merits of the vendor’s claim against the reasons offered by IDPA for its previous refusals to pay that claim. To invoke this Court’s authority, a vendor-claimant must be able specifically to allege in its complaint, and to. prove, that its “claim (invoice, for specific goods or services) has been previously presented” to IDPA (section 790.5(a) (3) of the Court of Claims Regulations) in accordance with IDPA Rule 140.20’s requirements, because such prior administrative presentation of the claim to IDPA “is an essential element of a section 11—13 * * * action.” University of Chicago Professional Services Offices v. State, supra, at 283; see Simon v. State (1987), 40 Ill. Ct. Cl. 246, 249-51; Franciscan Medical Center v. State (1988), 44 Ill. Ct. Cl. 431; Treister & Wilcox v. State (1989), 42 Ill. Ct. Cl. 185, 190-91.

This claim was commenced within six to nine months following the dates on which the subject services were rendered. IDPA reports that it had received timely DPA-form invoices from a hospital and two other physicians, charging for services to patient McCalla rendered during the same time span as Claimant’s services; and that said hospital and physician invoices had been paid. No invoice by the Claimant can be found. No facts here alleged offer any excuse for the failure of the present Claimants to invoice their service charges to IDPA through administrative channels prior to IDPA Rule 140.20’s prescribed deadline.

This Court finds that the Claimant did not respond to the Respondent’s request for admission of fact, nor did the Claimant respond to the Respondent’s motion, or this Court’s order granting 30 days for such a response. Therefore, this Court finds that the facts are as stated in the motion and the verified departmental report submitted by the Respondent, and that the Claimant’s complaint does not state a cause of action.

It is therefore hereby ordered and adjudged that Respondent’s motion for summary judgment on the complaint and underlying causes, on the grounds addressed in this opinion, is granted; judgment as to all issues is entered against Claimant Brand, Beck & Hoover Assoc., and its physician-vendors and in favor of Respondent herein; and this claim is dismissed.


author: Montana, J.

text:
    (No. 89-CC-2429

      In re Application of Louis P. Cardwell III.

      Opinion filed November 26, 1991.

    Lawrence D. O’Gara, for Claimant.
    Roland W. Burris, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Montana, J.

This claim is before the Court by reason of the death of Lawrence K. Cardwell, who was an officer with the Chicago Police Department. Louis P. Cardwell III, who is the independent administrator of the decedent’s estate, seeks compensation pursuant to the terms and provisions of the Law Enforcement Officers, Civil Defense Workers, Civil Air Patrol Members, Paramedics, Firemen and State Employees Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 281 et seq.), hereinafter referred to as the Act.

On May 24, 1990, this Court entered an order regarding this claim which stated it was unable to determine from the record before.it whether Officer Cardwell was “killed in the line of duty” as is a precondition to the granting of compensation under the Act. The record before the Court at that time consisted of the application for benefits submitted by the Claimant, together with the written statement of Officer Cardwell’s supervising officer and documents submitted therewith, the medical examiner’s report of postmortem examination, the decedent’s designation of beneficiary, and the report of the Attorney General. Pursuant to the order the claim was assigned to a commissioner for the purpose of determining whether Officer Cardwell was “killed in the line of duty” as the phrase is defined in section 2(e) of the Act and to examine such other matters as may be necessary to resolve the claim.

The matter is now back before the Court pursuant to a joint stipulation filed by the parties which states, in relevant part, as follows:

“The parties hereto, by their respective attorneys, hereby jointly stipulate to the submission of the Report of the Attorney General, with the forms and documentation attached thereto, as and for the complete record for consideration by the Court in this matter.
Neither party intends to adduce any additional evidence, nor does either party intend to file a brief in this cause.
The parties stipulate that the matter be thus presented for the Court’s consideration.”

Section 2(e) of the Act provides, in relevant part:

“(e) 'killed in the line of duty’ means losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer, civil defense worker, civil air patrol member, paramedic or fireman if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause.”

In determining whether an officer was “killed in the line of duty” when the fatal injury suffered was a heart attack, this Court stated in the case of In re Application of Smith (1990), 43 Ill. Ct. Cl. 183, at page 186:

“Cases involving heart attacks are among the most difficult presented to this Court. The Court recognizes that police work involves stress and strain which can lead to heart attacks. In deciding whether an award should be granted an effort is made to determine whether the activities the decedent was performing precipitated the heart attack. In cases where a decedent is performing strenuous physical activities at the time the attack is suffered the Court has consistently granted awards. However, in cases where the decedent was not performing strenuous physical activities when the heart attack was suffered the Court must closely examine whether the circumstances surrounding the decedent’s performance of duties prior to the time the fatal heart attack was suffered may have precipitated the attack.”

The record before the Court indicates that on September 19, 1988, Officer Cardwell was on duty and was assigned to executive security detail, unit 543, 8:00 a.m. to 9:00 p.m. While visiting a friend at 3732 S. Wallace, Officer Cardwell stated he didn’t feel well and collapsed in a chair. He was taken to Mercy Hospital where he was pronounced dead of a possible heart attack. The medical examiner’s report of postmortem examination indicates that Officer Cardwell died as the result of coronary arteriosclerosis.

There is nothing in the record before us establishing a causal connection between the decedent’s duties and his death. No evidence has been presented indicating the decedent was performing strenuous physical activities at the time the attack was suffered or that the circumstances surrounding the decedent’s performance of duties prior to the time he collapsed produced unusual stress or strain which could have been sufficiently injurious to precipitate a heart attack.

Based on the foregoing, we find that this claim must be denied since it has not been shown that Officer Cardwell was “killed in the line of duty” as is required by the Act.

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


author: Burke, J.

text:
    (No. 89-CC-2448
    Charitha Matthews, Michael Bell, and Almetter Knighten, Claimants, v. The State of Illinois, Respondent.

      Opinion filed February 4, 1992.

    Robert L. Silberstein, for Claimant.
    Roland W. Burris, Attorney General (Gregory T. Riddle, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

Claimants brought this claim for damages against the State of Illinois for personal injuries sustained from an automobile accident on February 18,1987. A hearing was held on January 22,1991, and in consideration of the stipulation of facts and briefs of the respective parties hereto, the following findings of fact were made:

A. That on the 18th day of February, 1987, a collision occurred between Claimants and Respondent (State of Illinois Department of Conservation), as evidenced by the official traffic collision report.

B. That Claimant, Charitha Matthews’, specials and doctor’s reports were set forth as Exhibit B attached to said stipulation.

C. That Claimant, Michael Bell’s, specials and doctor’s reports were set forth as Exhibit C attached to said stipulation.

D. That Claimant, Almetter Knighten’s, specials as to property damage, was set forth as Exhibit D attached to said stipulation.

E. That all of the injuries, specials incurred and property damage as reflected in the exhibits were causally related to the collision of February 18,1987.

F. That all medical specials and property damages incurred are fair, reasonable, and customary charges in this community.

The police report attached to the stipulation of facts indicates that the collision was caused by the Respondent. The Respondent was in the process of backing up to go around a stalled car when he hit the Claimants’ vehicle which was behind Respondent’s vehicle. Respondent’s agent indicated that he heard the driver of Claimants’ vehicle honk her horn, but he did not or could not stop in time to avoid the collision.

Claimant, Charitha Matthews, was pregnant at the time of the collision. Her treating physician, Dr. Hoffman, on February 23,1987, found “tenderness over the L-4 to 5 and 5 to S-l interspace with muscle spasm present at L3 to SI.” Dr. Hoffman prescribed a course of outpatient physical therapy as, due to Claimant’s condition, he could not prescribe medication or obtain X rays. On March 17, 1987, during a re-check examination Dr. Hoffman found “* * # minimal tenderness from L4 through SI with muscle spasm L3 to SI.” Dr. Hoffman continued a course of outpatient physical therapy and placed Claimant on analgesic and muscle relaxants. He was of the opinion that Claimant, Charitha Matthews, sustained a lumbarsacral strain as a result of the aforementioned motor vehicle accident. Charitha Matthews responded to treatment commencing from five days after the injury to almost one month after the accident when she was referred to Dr. Patel, who in turn prescribed an extensive course of physical therapy. Charitha Matthews incurred medical damages in the sum of $1,655.56.

Claimant, Michael Bell, was treated at the Institute of Physical Medicine and Rehabilitation between March 12,1987, and April 27,1987, and again on September 14, 1987. When he was seen by Dr. Hoffman, he was placed on an analgesic and a muscle relaxant. Dr. Hoffman was of the opinion that Michael Bell sustained a thoracolumbar strain. He received as treatment 25 episodes of therapy. Michael Bell incurred medical damages in the sum of $902.92.

Claimants have a burden of proving by a preponderance of the evidence that the State was negligent and that the State’s negligence was the proximate cause of Claimants’ injuries. Claimants must also establish a prima facie showing of a duty by the Respondent, breach of Respondent’s duty proximately causing Claimants’ injuries and damages as a result thereof. According to the facts as stipulated in this case, Claimants have respectively met their burden. The preponderance of evidence in this case clearly favors the Claimants. Respondent’s negligence resulted in the injuries of the Claimants.

It is hereby ordered:

A. That Claimant, Charitha Matthews, is awarded the sum of $12,000.00 in full and complete satisfaction of her claim.

B. That Claimant, Michael Bell, be awarded the sum of $10,000.00 in full and complete satisfaction of his claim.

C. That Claimant, Almetter Knighten, be awarded the sum of $806.57 which is the amount the parties stipulated to as and for the property damage.


text:
    (No. 89-CC-2703
    Calvin Pink, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 8, 1991.

    Calvin Pink, pro se, for Claimant.
    Roland W. Burris, Attorney General (William Conroy, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

Claimant, an inmate with the Illinois Department of Corrections, seeks damages of $50,000.00 from Respondent for injuries sustained by Claimant because Respondent failed to provide adequate medical care.

Claimant contends that when he entered the Illinois Department of Corrections, he suffered with foot problems and wore special medical shoes. Claimant was allowed to retain the special shoes while incarcerated in Cook County Jail. Claimant alleges that when he was transferred to Joliet Correctional Center, he was deprived of his shoes when they were confiscated. Claimant alleges that he constantly complained of pain he suffered because he was unable to wear his special shoes and Respondent consistently refused his requests for treatment.

Claimant testified that in 1975 or 1976 his medical problems with his feet were first diagnosed by a foot clinic when he was 13 or 14 years of age. This was prior to becoming an inmate. Claimant received therapy for his feet, and was informed by a doctor that he needed arch support shoes. The therapy received consisted of soaking his feet in a whirlpool twice a week over a period of two or three years. He was fitted with arch supports at the clinic, which consisted of a shoe with a specially designed heel and structure within the shoe. Claimant contends he commenced wearing these shoes at age 13, and continued to wear them until he entered Joliet Correctional Center at age 25.

At the time his shoes were taken, he advised the Respondent’s agents of his foot problem, but was told that all of his property from the street was confiscated. Claimant complained to medical personnel about his foot problem, but the medical examiners did not examine his feet. Claimant developed aches in his feet because he was deprived of his special shoes. The aches made it difficult for him to walk.

Claimant was moved to Centralia Correctional Center and spoke to medical personnel at Centralia regarding his condition. Claimant persisted in verbalizing his complaints concerning his need for arch supports while at Centralia through April of 1989. Claimant saw Dr. Shorff, head physician for the Centralia Correctional Center. Dr. Shorff examined Claimant’s feet and prescribed aspirin, denied Claimant’s request to see a podiatrist and advised Claimant that the State did not have funds to send him to see a podiatrist. X rays were taken of his feet and showed nothing wrong with the structure of his bones. Claimant was experiencing sharp pains in his feet all the time.

When Claimant arrived at Menard subsequent to April of 1989, he complained of foot problems and was seen by medical personnel. Dr. Khan examined Claimant’s feet and provided him with thin arch supports for inside his shoes. Claimant stated that the foam rubber supports have not changed his symptoms. Claimant renewed his request to see a podiatrist and was referred to Dr. Platt. Two or three weeks before the initial hearing in this case (July 14, 1989) Dr. Platt suggested that Claimant try arch supports or a different type of shoe, but at this time, there was no follow-through on Dr. Platt’s recommendation.

Claimant offered no expert testimony or any other evidence to prove the allegations of his complaint. Claimant’s allegations are essentially allegations of medical malpractice, and as such must be proven by expert testimony. (O’Donnell v. State (1980), 34 Ill. Ct. Cl. 12; Porter v. State (1965), 25 Ill. Ct. Cl. 62; Woods v. State (1985), 38 Ill. Ct. Cl. 9, 26.) Claimant must establish a breach of duty through expert testimony and establish that Respondent deviated from the required standard of care. (Conrad v. Christ Hospital (1975), 77 Ill. App. 3d 337, 396 N.E.2d 201.) Claimant failed to do so.

Wherefore it is hereby ordered that this claim is denied.


author: Rurke, J.

text:
    (No. 89-CC-2997
    Mark J. Cissna, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 19, 1991.

    Mark J. Cissna, pro se, for Claimant.
    Roland W. Burris, Attorney General (Charles S. Watson, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Rurke, J.

Claimant, an inmate with the Illinois Department of Corrections, seeks damages from Respondent, State of Illinois, for the value of personal property claimed to have been lost by Claimant through the fault or neglect of Respondent or its agents.

Claimant alleges that Respondent, State of Illinois, is responsible for $1,500.00 in money damages for Claimant’s loss of personal property. Claimant contends that he kept all of his property in his assigned cell.

On July 7, 1988, Claimant was ordered to be transferred from Graham Correctional Center to Menard Correctional Center. At the time of the transfer, Respondent took exclusive possession and control of his property, and his property was stolen as a result of two separate incidents.

Claimant testified that on September 10, 1988, he left his cell and went to the yard. Claimant’s cellmate went to the commissary. When Claimant was released from his cell, Respondent’s agents closed the door and Claimant went to the yard. One and one-half hours later when Claimant returned to his cell, Claimant noticed that “the cell was all torn up.” Claimant inquired of Respondent’s agents whether they “shook my cell down.” Respondent’s agents denied any shakedown. Claimant was told to make a list out of missing property, which he did.

Claimant testified that he believed other inmates took his property. Claimant stated, “it had to be the guard that unlocked the door to let them in, because that is the only way they could get in there.” When Claimant returned to his cell to find property missing, the cell was locked.

Regarding the second incident, Claimant testified that he was sick and in protective custody status. Claimant was apparently treated for illness and when his personal property was returned, he found that “the commissary stuff that I bought after the first time, got ripped off again.” No inventory was made of Claimant’s property when he was taken to the hospital. Claimant suspects that guards cooperated in allowing inmates to enter his cell and take the Claimant’s property. Claimant had no information or knowledge that his property ever came into exclusive possession of the State. Claimant had no evidence or proof that a guard was responsible for allowing inmates to go into his cell and take his property. Claimant reasons that nobody can get into the cell without a key and the only people that have keys are the guards.

As in so many cases filed by inmates for the loss of personal property, this case presents a fact situation where Claimant brings suit for his loss of personal property based on its unexplained disappearance from Claimant’s cell. We are aware of only one case where this Court has applied the doctrine of res ipsa loquitur to allow an award in such a fact situation, and that case is Walker v. State (1986), 38 Ill. Ct. Cl. 286. In the Walker case, supra, there was direct evidence that at the time of the unexplained disappearance of claimant’s property from his cell, there had been a “shakedown” and officers had opened claimant’s cell. The officer, having opened claimant’s cell, told claimant that he opened the cell and stated that “he may or may not have locked the door after he stepped out of the cell.” In that case, it was found that the doctrine of res ipsa loquitur would seem to be applicable, and an award was made.

In the case at bar, there is no evidence that guards entered Claimant’s cell on either occasion. There is no evidence from which a bailment could be inferred, and no direct evidence of negligence on the part of Respondent.

Wherefore it is hereby ordered that this claim is denied.


author: Raucci, J. Raucci, J. Raucci, J.

text:
    (No. 89-CC-3041
    Hyde Park Medical Laboratory, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 7, 1990.

      Order filed June 12, 1991.

      Order filed September 6, 1991.

    R. Steven Polachek and Lawrence Jay Weiner, for Claimant.

      Neil F. Hartigan, Attorney General (Robert Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

Pending before the Court is the Claimant’s motion for, summary judgment and the Respondent’s motion to dismiss.

Respondent has moved to dismiss on the grounds of res judicata. A brief discussion of the origination of this action is necessary to understand the issues.

In 1972, Claimant filed an action in this Court seeking payment for services rendered to the Department of Public Aid. Other actions were filed in Federal court, and the matter in this Court was continued generally. After disposal of the other actions, the matter was concluded in this Court on August 22,1988, with an award to Claimant of $340,681. Claimant filed a motion for rehearing, reconsideration, and modification seeking “pre-award interest and attorneys’ fees.” On November 7,1988, that motion was denied.

On March 28, 1989, Claimant filed the instant action. Claimant has filed a motion for summary judgment, and Respondent has filed a motion to dismiss. We heard oral arguments, and allowed the parties to file supplemental briefs.

Because of the length of time of contention between the parties, and the nature of the issues before us, we decline to rule on the Respondent’s contention that this action is barred by res judicata. Instead, we construe the motions, memoranda and exhibits of the parties as cross-motions for summary judgment and proceed to rule thereon.

Ill. Rev. Stat. 1987, ch. 127, par. 132.403—1, relied upon by Claimant, provides:

“In any instance where a State official or agency is late in payment of a vendor’s bill or invoice properly approved in accordance with this Act ° # * the State official or agency shall pay the interest penalty 0 ° (Emphasis supplied).

While Claimant asserts that “the evidence has and will show that all invoices were approved for payment,” any such “approval” of invoices for services rendered in 1969-1971 has been rescinded prior to the filing of the original claim in 1972. We note that the enactment of the Prompt Payment Act was in 1975, effective July 1,1976. Nothing in the legislative debates, supplied by Claimant, indicates an intent to provide interest on invoices that were not “approved” at the time of the passage of the legislation. Accordingly, even if the Claimant’s invoices were subject to the legislation, it would not be entitled to interest since they were not approved.

Claimant has cited In re Special Education of Walker (1989), 131 Ill.2d 300, 546 N.E.2d 520, for the proposition that the Prompt Payment Act

“constituted an example of an act which sufficiently manifested the Legislature’s intent to waive sovereign immunity and required payment of interest on bills unpaid by the State.”

We do not find sovereign immunity to be an issue in this case. Rather, we find the issue to be whether Claimant’s 1969-1971 invoices qualify for interest under the facts of this case. For the reasons set forth, we decide the issue against Claimant and for Respondent.

It is therefore ordered, adjudged and decreed that this claim is dismissed, and forever barred.

ORDER

Raucci, J.

This cause coming on to be heard on Claimant’s petition for rehearing, reconsideration, grant of summary judgment and entry of award prayed for in complaint, and the Court being fully advised in the premises, it is ordered that Claimant’s petition for rehearing, reconsideration, grant of summary judgment and entry of award prayed for in complaint is hereby denied.

ORDER

Raucci, J.

This cause coming on to be heard on the Claimant’s request for evidentiary hearing, the Court being fully advised in the premises, finds that on June 12, 1991, we denied Claimant’s petition for rehearing, reconsideration, grant of summary judgment and entry of award prayed for in complaint. It appears that in transmitting a copy of that order to Claimant, the clerk erroneously sent a form letter indicating further review was available. No further review, or proceedings, are available. Our order of June 12, 1991, effectively terminated all proceedings in the Court of Claims.

Ordered, that the Claimant’s request for evidentiary hearing is denied.


text:
    (No. 90-CC-0277
    Cedric D. Simmons, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 8, 1991.

    Cedric D. Simmons, pro se, for Claimant.
    Roland W. Burris, Attorney General (Frank Hess, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

Claimant, an inmate with the Illinois Department of Corrections, seeks damages from Respondent, State of Illinois. Claimant alleges a loss of $420,250.00 on the basis of allegations that employees of the Respondent seriously injured Claimant by choking him, violently slamming him to the walls and doors, striking him and generally physically abusing him, all of which is alleged to have occurred in the segregation unit at “Hill” Correctional Center on May 23,1989.

Claimant testified that on May 23,1989, at approximately 9:30 p.m., Respondent’s officers came to his room. The purpose for their presence was to prepare Claimant for transfer to Menard on the following day (May 24,1989). Claimant engaged in a dispute with one of the Respondent’s officers concerning the completeness of the property inventory that had been prepared at the time his property was packed. Claimant accused the officer of harassing him. Claimant was unable to resolve the dispute concerning the completeness of his personal property inventory with a lieutenant and refused to sign the inventory slip. Claimant was handcuffed and taken to examine his property which was removed from boxes in his presence. Claimant was concerned that Respondent’s agents would write him “bogus tickets.” Claimant contends that as he was reaching for a pencil to sign the personal property slip, the officer jabbed him in the index finger with a pen and began “proceeding dragging (Claimant) backwards * * # to (Claimant’s) cell.” Other officers got involved and started pushing Claimant around and slamming him into the walls and he was beaten by one officer while being restrained by another. Claimant advised other officers of the incident. Claimant complained to medical personnel that he “was hurting.” Claimant claims that he sustained injuries to his wrist and that, although needing stitches, he received none and was not hospitalized. Claimant was transferred to Menard the following day and received no medical attention at Menard. Claimant contends that the left side of his jaw was fractured. However, when examined by a doctor he was advised that there was no evidence of his jaw being fractured or broken. Claimant believes his jaw was broken because it hurts at times, and his ribs hurt. Claimant received no treatment for his ribs or his lower back, but contends that he complained to physicians about his ribs and lower back. X rays were taken of his back and revealed nothing. Claimant was told by Dr. Khan at Menard he was to take Tylenol and he would be all right.

Claimant contended that the conditions he was suffering were caused by the actions of the State and consisted of the left side of his jaw hurting as well as the lower left side of his pelvis and left ribs. The Claimant demonstrated an area on his left side that he contended was scarring from the injuries he received in the incident. It did not appear to be a “scar.” Claimant was X-rayed on multiple occasions due to complaints he related to be from the incident and on each occasion was advised by physicians that nothing could be found.

Claimant admitted that his version of the incident is substantially different than the versions given by the officers. At hearings before the adjustment committee, Claimant was found guilty by the institutional review boards. Claimant admitted to having been in other fights while he was in prison. Claimant testified that his speech was no different now than before he claimed to have sustained the injury to his jaw. Claimant admitted that he was mad at the officers before and at the time of the incident and contended that the officers mistreated Claimant as a result of a personal grudge from prior incidents.

Incident reports dated May 23,1989, by officers involved in the incident were submitted in the departmental reports filed under section 790.140 of the Court of Claims Regulations. The contents of those incident reports strongly dispute the contentions of the Claimant with respect to the events from which Claimant alleges he sustained injuries.

Respondent was not guilty of negligence or the excessive use of force against Claimant. Claimant became unruly and physically abusive toward the officers when engaged in a dispute concerning the personal property inventory that had been prepared in connection with his contemplated move to Menard Correctional Center. Respondent’s agents used such force and compulsion as was reasonably necessary to restrain Claimant and to protect officers and Claimant from additional, further, or more serious injuries.

Wherefore it is ordered that this claim is denied.


author: Raucci, J.

text:
    (Nos. 90-CC-0360, 91-CC-2284 cons.
    Brokaw Hospital, filed sub nom. Bromenn Healthcare, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 21, 1992.

    William B. Lawrence, for Claimant.
    Roland W. Burris, Attorney General (Phillip McQuillan, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

In the two captioned actions, Claimant hospital is seeking medical vendor-payments from the Illinois Department of Public Aid (IDPA), pursuant to section 11—13 of the Public Aid Code (or PAC, Ill. Rev. Stat. 1989, ch. 23, par. 11—13), for psychiatric-related services which Claimant alleges were rendered to 23 named patients over the period April 1988 through June 1990. Claimant alleges that 21 of these patients were recipients of Aid to the Medically Indigent, or “AMI” (assistance category “97”), eligible to receive assistance as provided in article VII of the PAC (§§ 7—1 et seq.).

Respondent has moved for summary judgment as to each of Claimant’s 23 patient accounts, contending: (a) that eight of these patients were ineligible to receive State-paid medical care under any assistance category of IDPA’s Medical Assistance Program (MAP) when the related services were rendered; (b) that no MAP coverage existed for psychiatric services when rendered to any of Claimant’s AMI-recipient patients; and (c) that, except for one account which IDPA has paid, Claimant has not shown that any of its charges for the subject services had been invoiced to IDPA in the manner and within the time prescribed by IDPA Rule 140.20 (89 Ill. Adm. Code §140.20).

Claimant hospital having received notice of Respondent’s motion, the Court, being fully advised, finds as follows:

No Showing Of Patients’ MAP-Eligibility. In its report, IDPA advises that patients Adams, Behm, Bertrand, Conlin, Franklin, Gresham, Mayer and Swanzy were not “recipients,” and thus not entitled to any form of MAP benefits, as of the dates on which they received the subject services in Claimant’s facility. Certain of Claimant’s complaint-exhibits appear to confirm IDPA’s report, and Claimant offers no documentation establishing that these patients were then IDPA recipients. This absence of proof in the complaint of patient-eligibility is to be contrasted with our conclusion

“that in every vendor-payment action brought before this Court, it is the vendor’s burden initially to allege in its complaint documented proof that IDPA had determined its patient to be a recipient, with respect to the date or dates on which the vendor furnished thé goods or services which are the subject of its proposed claim *" (Mercy Hospital & Medical Center v. State (1988), 40 Ill. Ct. Cl. 269.)

(See also Illini Hospital v. State (1977), 32 Ill. Ct. Cl. 115; and Bromenn Healthcare v. State (1986), 39 Ill. Ct. Cl. 223.) As Claimant has failed to sustain its burden, the Court finds that these eight patients had not been determined to be recipients in respect to the dates of service here in issue.

No MAP Coverage For Psychiatric Services Rendered to AMI Recipients. IDPA further reports that MAP-covered services available to AMI recipients are restricted to those enumerated in IDPA Rule 140.5 (89 Ill. Adm. Code §140.5, formerly IDPA Rule 4.011). Rule 140.5 expressly provides that “psychiatric services are not covered for GA [PAC Article VI] and AMI recipients” when provided in a hospital setting. (St. Mary of Nazareth Hospital Center v. State (1991), 43 Ill. Ct. Cl. 310; and Miller v. IDPA (1981), 94 Ill. App. 3d 11, cert. denied 85 Ill. 2d 566.) The restrictions are also explained in Topics 102.2 and H-220 of IDPA’s MAP Handbook For Hospitals. Claimant hospital, in contracting with IDPA to provide services for its recipients, had agreed to abide by the Department’s vendor Handbook and notice policies, and its rules and regulations. (See Rock Island Franciscan Hospital v. State (1987), 39 Ill. Ct. Cl. 100, 102.) This Court has previously upheld IDPA’s refusals to make vendor-payments for psychiatric services when rendered to AMI recipients; as examples, see Mercy Hospital v. State (1985), 38 Ill. Ct. Cl. 388; Methodist Medical Center of Illinois v. State (1983), 35 Ill. Ct. Cl. 871.

This record contains some indication that Claimant’s services to one or more of these patients may have qualified for payment from the Illinois Department of Mental Health and Developmental Disabilities (DMHDD), under programs administered by that agency. The Court concludes that no coverage exists for the subject services under IDPA’s MAP when such services are rendered to persons who. are eligible only for PAC article VII assistance. While it is not clear what effort Claimant had made to obtain payment from DMHDD for these services, we agree that it is unlikely Claimant would be entitled to payment for them from both DMHDD and IDPA.

No Allegations Of Previous Claim-Presentation And Responding IDPA Action. Claimant does not allege here that it had submitted specific, DPA-form invoices of its charges for specifically-identified services to IDPA, for any of the 22 unpaid accounts, prior to commencement of these Court actions on September 14, 1989, and February 7, 1991. Under sections 790.50(a)(3), (a)(9) of the Court of Claims Regulations, Claimant was obliged specifically to allege any such prior invoicing activity in its complaint. Moreover, the State’s payment liability for these services, under IDPA’s MAP, is contingent upon Claimant’s ability to prove that it had invoiced said charges, and that IDPA had received such invoices, in the manner and within the time period prescribed by IDPA Rule 140.20. (Peterson v. State (1990), 43 Ill. Ct. Cl. 347; and Rock Island Franciscan Hospital v. State, supra.) Rule 140.20’s provisions are set out in Topic 141 of the MAP Handbook For Hospitals.

These Court actions were filed from 7 to 14 months after Claimant’s services were rendered and, as of such filings, no administrative claim of Claimant’s charges for them had been presented to IDPA. Recognizing that “[compliance with [Rule 140.20’s deadline] requirements is an essential element of a section 11—13 # * 6 action” (University of Chicago Professional Services Offices v. State (1990), 42 Ill. Ct. Cl. 277), and that the complaint herein is deficient as to that element, it is apparent that Claimant has not established a prima facie right to payment as to any of these unpaid accounts. United Cab Driveurself, Inc. v. State (1987), 39 Ill. Ct. Cl. 91; Simon v. State (1987), 40 Ill. Ct. Cl. 246; and Rock Island Franciscan Hospital v. State (1982), 36 Ill. Ct. Cl. 377.

Sections 439.8(a) and (b) of the Court of Claims Act (Ill. Rev. Stat., ch. 37, pars. 439.8(a), (b)) and section 11—13 of the PAC, offer vendor-claimants the opportunity to have this Court review and assess IDPA’s prior “action taken” (section 790.50(a)(3) of the Court of Claims Regulations) in response to an administrative claim, or invoice, which the vendor has previously submitted and the Department has failed or refused “to pay * “ # in whole or in part” (§11—13 of the PAC). The Court’s function, in section 11—13 actions, is that of assessing the merits of the vendor’s claim against the reasons offered by IDPA for its previous failures or refusals to pay that claim. To invoke this Court’s authority, a vendor-claimant must be able specifically to allege in its complaint, and to prove, that its “claim [invoice, for specific goods or services] has been previously presented” to IDPA (emphasis supplied) (section 790.50(a)(3) of the Court of Claims Regulations), in accordance with IDPA Rule 140.20’s requirements. (Forutan v. State (1991), 43 Ill. Ct. Cl. 377.) Commencement of a section 11—13 Court action thus should not be viewed as a substitute for the vendor’s prior failure to timely comply with Rule 140.20, or with other applicable requirements in IDPA’s MAP Handbooks and in State and Federal Medicaid regulations. Ryan v. State (1990), 43 Ill. Ct. Cl. 213; Peterson v. State, supra; Forutan v. State, supra; Krakora v. State (1987), 40 Ill. Ct. Cl. 233, 237-8; Simon v. State (1987), supra, at 248; and Methodist Medical Center v. State (1986), 38 Ill. Ct. Cl. 208.

It is therefore ordered and adjudged that Respondent’s motion for summary judgment is granted, Brokaw Hospital having failed to establish in its pleadings herein that eight of its patients were entitled to any form of MAP benefits, that any of the subject services was MAP-covered when rendered to AMI recipients, or that any charges relating to its 22 unpaid accounts had been invoiced to IDPA in accordance with applicable regulatory requirements. Judgment is hereby entered for Respondent, and against Claimant, as to all issues presented in these two actions.


author: Burke, J. Burke, J.

text:
    (No. 90-CC-0680
    Andrew Robinson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 8, 1991.

      Order filed January 28, 1992.

    Andrew Robinson, pro se, for Claimant.
    Roland W. Burris, Attorney General (Frank Hess, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Burke, J.

Claimant, an inmate with the Illinois Department of Corrections, seeks damages from Respondent, State of Illinois, for the value of personal property claimed to have been lost by Claimant through the fault or neglect of Respondent or its agents. Claimant alleges a loss of $665.00.

On May 18, 1988, Claimant alleges that Respondent’s agents lost or misplaced Claimant’s property during his stay in segregation. Claimant discovered his loss upon his release from segregation on January 17, 1989, and his personal property was never returned. Nearly half of the money damages sought by Claimant are sought for mental and psychological anguish and disorders allegedly sustained by Claimant as a result of his loss of personal property.

Claimant’s grievances before the institutional inquiry board resulted in a finding that Claimant signed a receipt dated 5-23-88 in which he represented that he had received all of his personal property; thus, his grievance was denied. This finding was affirmed by the administrative review board at their meeting on Friday, September 1,1988.

At the hearing in this cause, Claimant testified that on May 18, 1988, he was at the chapel and received a disciplinary ticket at 3:20 p.m. He left his cell a little bit before 8:00 in the morning, and the property was in his cell when he left. He received a disciplinary ticket before returning to his cell, and was immediately “walked to seg” without being allowed to pack or inventory his property. On May 22,1988, four days later, Claimant received part of his property. At that time, Claimant assumed that his 8-track player, fan and TV set were being held in the personal property office. Claimant identified a form document out of the departmental report dated 5-18-88 which bore his name, and listed a pair of headphones, a guitar, a razor, and two boxes of 8-track tapes that were delivered to Claimant by Officer Chandler, and Claimant declined to sign the list because the list failed to include Claimant’s audio visual equipment or his 8-track tape player. Claimant inquired of Officer Chandler as to the whereabouts of the items of property not listed on the inventory.

Officer Gregory testified that he had given Claimant a hand written statement, that he would testify that he placed Claimant’s 8-track tape player, fans and other things in a box, and placed that box in the East Cell House cage. Officer Gregory remembered the incidents specifically, since he remembered that the Claimant had engaged in an altercation with another officer. The officer did not do the inventory of Claimant’s property and could not remember if there was a TV with the property he placed in the sergeant’s cage.

Claimant admitted that he signed the inmate personal property receipt dated 5-23-88 indicating that he had received all of his personal property.

Officer John T. Gultman was the segregation personal property officer and investigated Claimant’s allegations involved in the case at bar. Gultman examined the inventory sheets dated 5-23-88 contained in the departmental report, and found that when Claimant went to segregation on 5-18-88, “he had none of the above mentioned that he is talking about missing * # Gultman reviewed his records and found that Claimant reported his 8-track AM-FM radio stolen on May 6,1984, and it was again listed as missing on 12-21-87. Gultman concluded that all of the property Claimant claims to have lost was not in his possession at the time he went to segregation. Gultman stated that all State loan property is taken from inmates when they go to segregation. Furthermore, inmates are not permitted to have multiple items of property. Inmates can have only one TV, one radio, one fan, and so on. Officer Gultman was a candid and truthful witness.

Claimant failed to demonstrate by a preponderance of the evidence that his personal property came into the voluntary exclusive possession of Respondent. Claimant’s theory is predicated on the proposition that since he received a disciplinary ticket and was “walked to seg,” Respondent became an insurer of the value of Claimant’s property. This theory cannot prevail. There was no direct evidence of negligence in the handling of Claimant’s property by any of Respondent’s agents. The evidence raises serious questions as to whether Claimant ever possessed the property which he now claims was lost or misplaced as a result of the fault or neglect of Respondent or its agents.

Wherefore, it is hereby ordered that this claim is denied.

ORDER

Burke, J.

This Court being presented with Claimant’s request to reconsider, and the Court being fully advised in the premises;

It is hereby ordered that Claimant’s motion is denied.


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

text:
    (No. 90-CC-2030
    Illinois Correctional Industries, Claimant, v. The State of Illinois, Respondent.

      Order filed May 14, 1991.

      Order filed March 24, 1992.

    Illinois Correctional Industries, pro se, for Claimant.
    Roland W. Burris, Attorney General (Phillip McQuillan, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

Claimant Illinois Correctional Industries (hereinafter referred to as ICI) brought this claim seeking payment in the amount of $220,632.15 for various housekeeping, clothing, and dietary items allegedly “sold” to the Respondent’s Department of Corrections (hereinafter referred to as DOC) for use at Stateville Correctional Center. In its standard lapsed appropriation form complaint, Claimant alleged that it made demand for payment to DOC but its demand was refused on the grounds that the funds appropriated for the payment had lapsed. The Respondent filed a stipulation agreeing to our making an award in the full amount sought. The case is now before us for approval of the stipulation.

This Court is not bound by such stipulations and based on the record as it now exists and other matters of public record of which we take" judicial notice, we are hesitant to approve the stipulation at bar for the following reasons.

First, it is necessary to examine what the Claimant bringing this suit actually is. The Claimant is not a private corporation, partnership, or other business entity. ICI is only a division of DOC. Therefore what we have in this case is the DOC suing itself.

While the concept of the State suing itself may seem strange or even preposterous, it sometimes does serve a useful purpose from an accounting perspective in that it can serve as a vehicle for moving money among the various funds. This Court has indulged such claims in the past primarily for the purpose of allowing an agency to collect on “debts” owed to a revolving fund from another agency or to make a petty cash fund whole after the appropriation from which payments could have been made has lapsed.

In the case at bar ICI is seeking payments into the Correctional Industries’ revolving fund. The term “revolving fund” is used to describe a mechanism set up to finance an operation of State government for which the primary clients are State agencies. A service agency is designated to provide a good or service to other (user) State agencies. The service agency either produces the goods or services directly or purchases them from outside vendors. A fund is established to enable the service agency to sell to user agencies. Proceeds from the sales are deposited into the fund and are then available to buy more inventory or provide more services. Revolving funds are set up to make accounting transfers among agencies when it is decided that some support service ought to be provided on a centralized basis under one State agency, rather than allowing all agencies to purchase the goods or services from a private vendor. With such centralization, benefits of control, economies of scale, and efficient allocation of resources can be achieved. ICI’s revolving fund finances operations at the several State penitentiaries which involve inmates manufacturing many items needed in the day-to-day operation of the prisons, for the governmental operations of all State agencies, and certain other not-for-profit entities. In addition to centralization, the ICI operation attempts to coordinate its work with vocational rehabilitation programs for inmates.

A revolving fund is created with an initial appropriation of general revenue monies intended to cover all of the activity’s start-up costs. The fund’s prices are to be set at a level to allow the fund to break even. In theory, the fund should be self-sustaining. In practice, additional infusion of money is often required. In the case at bar, because DOC did not pay itself, the ICI fund is short $220,632.15 and DOC is in the seemingly incongruous position of having to sue itself.

In the ordinary case where an agency seeks reimbursement for its revolving fund by filing a lapsed appropriation claim (and DOC has been the only one to do so in recent years), the Court of Claims has gone along with the agency and treated the claim just like any other claim. Awards have been made and paid to ICI when other agencies did not pay for the goods produced by ICI and sold to the agencies because the appropriations for such payments lapsed. This case is different. From the vouchers attached to the complaint, we see that the purchases which gave rise to this claim were made in November of 1988 through the end of the fiscal year. This is not a case of just one instance of an oversight, but apparently a pattern which continued for two-thirds of the fiscal year. (It does not appear that DOC is seeking to charge itself interest under the Prompt Payment Act for what appears to have been an intentional disregard of its own bills.) This case is also different because DOC did not have enough money to pay itself. Purchases of this nature were to come from funds appropriated under the commodities line item appropriation. Both departmental reports on file show only $1,508.78 lapsed in that line item. The reports do indicate, however, that DOC had anticipated supplemental funding which never materialized.

The initial response to the claim was a recommendation, which is an unusual pleading. The recommendation reads in relevant part as follows:

“1. This is a claim against the Department of Corrections.
2. We have no reason to doubt that Claimant acted in good faith to provide the goods billed.
3. Although a Department may not obligate itself beyond the appropriation provided it, the Department, too, acted in good faith based upon its belief that supplemental funding would be provided to pay for the Constitutionally mandated needs of the inmates.
4. We therefore recommend that the Court of Claims recommend that the General Assembly appropriate funds to pay this claim.”

A motion to withdraw the recommendation was filed shortly thereafter, which will be allowed, but some discussion of the recommendation will serve to better illustrate the Court’s position. While the provision of the basic needs of food, clothing, and shelter, such as what likely consist of the purchases in this case, is constitutionally mandated, we are not persuaded that the basic needs were not paid for. We seriously question whether the constitutional mandate could be enforced in the constitutional courts when the State has already paid for the goods provided with ICI revolving fund monies. As for the recommendation that this Court recommend that the General Assembly appropriate funds to pay this claim, it is apparent from the departmental reports and recommendation that DOC sought the supplemental appropriation and the General Assembly refused. The Court of Claims’ function is not to review the decisions of the General Assembly.

Thereafter a second response to the claim was filed. This response was a stipulation agreeing to our entering an award in the full amount claimed based on a second departmental report. This report indicates at paragraphs 11 and 12 that DOC had lapsed funds which could have been transferred to the commodities line item under the 2% transfer statute, Ill. Rev. Stat., ch. 127, par. 149.2. Those funds were said to be in the corrections recovery fund, No. 231-42692-1900-00-99. This proffered source is not transferable under the 2% transfer statute and we cannot base an award on such.

However,- it may be possible that the corrections recovery fund could have been used to pay the expenses directly without transfer into another line item. That fund is a State trust fund created pursuant to §6z—13 of the State Finance Act, Ill. Rev. Stat., ch. 142z—13. According to the terms of that statute, the money is held by the State Treasurer and “spent at the direction of the Director of the Department.” The report indicates that over $1.1 million lapsed at. the end of fiscal year 1989.". However, the appropriation of 231 Trust Fund'money to DOC does not appear in the State Comptroller’s 1989 publication entitled - Illinois Appropriations. "We find it' unlikely that the director’s discretion to spend money from that fund is totally unfettered.

Before taking final action on the pending stipulation, we want the record augmented to show some evidence that the 231 Trust Fund money was appropriated in fiscal year 1989, how much of the appropriation lapsed that year, and whatever guidelines exist as to how that money may be spent. Further, we want the record to reflect why that trust fund money was not used to pay these bills during the 90-day grace period contained in §25 of the Finance Act following the end of the fiscal year 1989 when it became certain that supplemental funding would not materialize.

Since this claim arose the General Assembly has, in the appropriations process, reviewed the levels of funding for the ICI revolving fund in fiscal years 1990 and 1991 and made its decisions. We point out that any award made by this Court would have to be approved by the General Assembly prior to payment due to the size of the award and its source. Under no circumstances is our final decision to be interpreted as a review of those legislative determinations.

If Claimant wants to continue prosecution of this claim, it is hereby ordered that the Claimant or Respondent supplement the record in accordance with this order within 60 days of the date of this decision; if Claimant fails to respond or request an extension within said time, this claim is denied. It is further ordered that the pending motion is granted.

ORDER

Montana, C.J.

This court, having considered the Attorney General’s motion to dismiss, and being fully advised in the premises,

It is therefore ordered that the claim of Illinois Correctional Industries against the State of Illinois Department of Corrections is dismissed.

So ordered.


text:
    (No. 90-CC-3105
    Fencel Construction Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 30, 1991.

      Order filed September 5, 1991.

    Robert J. Huguelet, Jr., for Claimant.
    Roland W. Burris, Attorney General (Richard F. Linden, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Montana, C.J.

This matter is before the Court upon the joint stipulation of the parties hereto. This claim sounds in contract and is before us pursuant to section 8(b) of the Court of Claims Act. Ill. Rev. Stat. ch. 37, par. 439.8(b).

In relevant part, the stipulation reads as follows:

“2. This cause concerns four separate construction contracts entered into between the Illinois Department of Transportation (‘Department’) and Fencel Construction Company (‘Fencel’). The contracts at issue are contract numbers 42448, 42859, 40825 and 42828 (hereinafter referred to collectively as ‘Contracts’).
3. Each, of the four contracts contained a provision pertaining to Disadvantaged Business Enterprise (‘DBE’) and Women’s Business Enterprise (‘WBE’). These provisions set goals for the contractor Fencel to employ a certain percentage of minority subcontractors arid authorized the Department' to withhold a portion of the contract price should Fencel fail to meet the DBE and WBE goals. The provisions' also permitted.Fencel to request a waiver or partial waiver of DBE or WBE goals. ..
4. The Department • withheld a total of $52,779.63 in contract funds from Fencel for its failure to meet DBE or WBE goals under the contracts. Fencel applied for a waiver under each of the contracts claiming that it was confronted with a default by a subcontractor approved under DBE or WBE goals.
5. After a hearing, the Department denied Fencel’s requests for waivers of the DBE and WBE goals. The Department held that despite Fencel being confronted with a default by the subcontractor under each of the contracts, Fencel should have found a substitute DBE or WBE firm to. perform the work. The issue in this case is whether the default by the subcontractor in each of the respective four contracts was justifiable and whether same constituted a material breach of contract such to enable a waiver or modification of goals.
6. The parties have agreed to a settlement of this claim in order to avoid further litigation, and that respondent hereby agrees to the entry of an award in favor of claimant in the amount of THIRTY ONE THOUSAND SIX HUNDRED AND SIXTY SEVEN DOLLARS AND SEVENTY EIGHT CENTS ($31,667.78). This figure represents sixty percent of the contract funds withheld by the department on the four contracts.
7. It is understood and agreed between the parties that the settlement herein does not constitute an admission of any liability, nor have any expressions or representations been made by either party (or the attorneys therefor) as to any legal liability or other responsibility of any party hereto.
8. Each party agrees to assume its own costs and fees.
9. Claimants, its officers, employees, directors, stockholders, its heirs and assignees, hereby waives, releases and relinquishes any claim, right or suit against the State of Illinois, the Department of Transportation, their subdivisions, officers or employees, arising out of or in connection with the contracts at issue in this case or any other claim in connection with the subject matter of this litigation.”

This Court is not bound by such settlements and it cannot acquiesce in approving this one. The record indicates that payments on the contracts were to come from four separate appropriations of road fund money to the Department and that no money lapsed in any of these appropriations. The Department indicated that the money withheld on the contracts was spent elsewhere. Under these circumstances, for the Court of Claims to enter an award would be tantamount to granting the Department a supplemental appropriation. Appropriating funds for the operations of the Department is the prerogative of the legislature.

However, for purposes of the possible consideration of this matter by the legislature, we find that, but for the Department having spent the funds withheld under the contracts elsewhere, we would have approved the settlement and made an award in the amount of $31,667.78. Claim denied.

ORDER

Montana, C.J.

This cause comes on to be heard on the Claimant’s request for reconsideration and hearing, due notice having been given, no response having been filed, and the Court being advised;

In support of its request, the Claimant states as follows:

“The Opinion states that the agreed settlement amount of THIRTY ONE THOUSAND SIX HUNDRED AND SIXTY SEVEN DOLLARS and SEVENTY EIGHT CENTS ($31,667.78) would have been approved, but for the Illinois Department of Transportation having spent monies withheld for payments of the underlying contracts elsewhere. That by this reasoning, any state agency could avoid paying justifiable claim simply by spending the money designated for payment of the claimant “elsewhere.” This is inequitable to the Claimant, contrary to the underlying contracts and a violation of the Claimants constitutional due process rights.”

The request will be denied. Claimant’s arguments misapprehend the purpose of the Court of Claims and its responsibilities vis h vis the General Assembly and the appropriations process. They ignore many years of basic Court of Claims case law. In fact, Claimant cited no case to show how the case at bar was any different from the Court’s approach taken in similar cases in the past. See discussions in La Salle National Bank v. State (1991), 43 Ill. Ct. Cl. 266; Thorlief Larsen & Son, Inc. v. State (1990, 1991), 43 Ill. Ct. Cl. 334; Bojko v. State (1988, 1989), 41 Ill. Ct. Cl. 202; J. F. Inc. v. State (1988), 41 Ill. Ct. Cl. 5; Loewenberg/Fitch Partnership v. State (1986), 38 Ill. Ct. Cl. 227; Ude, Inc. v. State (1982), 35 Ill. Ct. Cl. 384.

In short, Claimant is correct that an agency could avoid paying by overspending, as happened here, but on the other hand, if the Court made awards in such instances, there may be no limit to the overspending.

In deciding this case as we did we fulfilled our responsibilities. No proposed order was tendered with the joint stipulation (and none was tendered with the request at bar). The opinion we prepared and entered in this case went into detail to advise the General Assembly of the circumstances surrounding this case. The General Assembly considered the matter and included the case in S.B.409, otherwise known as the Court of Claims Special Awards Bill, for payment. As this decision is being prepared, that bill is awaiting approval by the Governor. If approved by the Governor, Claimant will be paid with the funds appropriated in the bill.

Had the Court approved the settlement and made the award, Claimant’s situation would be unchanged. The award would have been included in the same appropriations bill now pending before the Governor for approval. (See Ill. Rev. Stat., ch. 37, par. 439.24.) We fail to see what Claimant hopes to gain by the request now before us. If the request were granted and the matter set for hearing, Claimant would not be paid any sooner and most likely much later, regardless of the outcome of the hearing.

Wherefore, it is hereby ordered that the request at bar be, and hereby is, denied.


text:
    (No. 90-CC-3153
    Donald McCormick, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 24, 1992.

    Donald McCormick, pro se, for Claimant.
    Roland W. Burris, Attorney General (Christopher K. Wells, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

Claimant seeks damages against the State of Illinois for personal injuries sustained by Claimant on January 23, 1990, when Claimant claims to have been struck in the head and face by welding sparks and some construction steel dropped on Claimant’s neck.

Claimant’s complaint alleged that he was standing in the cellhouse attempting to speak to the guard concerning a commissary slip, when “fire sparks” started flying through a caged fence striking the Claimant in his hair and on his face. Claimant then alleges that, in an attempt to “get out of the way,” Claimant was struck on the head and neck by a heavy steel object causing “great bodily harm.” Claimant seeks an award of $100,000.00 for his injuries.

Claimant testified that he was in an area where construction work was taking place when he was struck by an angle iron. Claimant testified he could not see the workmen with their welding gear above the area where he was standing at the time of the incident. Claimant sustained an abrasion upon being struck but did not require sutures. Claimant contended that he presented a grievance to the Institutional Inquiry Board which was denied. Claimant did not appeal to the Administrative Review Board in Springfield. Further testifying, Claimant contradicted himself by denying having filed a grievance with the Institutional Inquiry Board.

. A witness called by the Claimant, Cornell Booth, testified he was helping construct security steel in the south cellhouse. Booth was welding and cutting steel. Booth testified that the area in question was “highly congested.” Booth was taking an 8-foot piece of angle iron “through the office” and made a sharp right turn, and struck Claimant in the neck hitting Claimant “a good lick.” Booth contended that he had said “watch out.” Booth contended that at the time there was welding, torching and sanding taking place. Booth stated that there was an officer present who was taking care of business with inmates near where the construction work was going on. Booth testified that usually “they clear the area,” but on the occasion in question the area had not been cleared. Booth testified that when he had said “watch out,” there was no way Claimant could have heard him because of the noise.

After the injury, Claimant testified that he was taken to the hospital and remained there until 3:00 or 3:30 in the afternoon. He was furnished with a neck brace shown in place on Claimant’s exhibits. Claimant received pain medication and was furnished physical therapy and ultrasound waves and massages. A cat scan was done outside the hospital “a couple of months later” that was negative. Claimant alleged that he was still having pain and difficulties in his lower back and right side. Claimant alleged that he had never been told directly what was wrong with him.

Claimant testified that the area where he was injured was “not secure at all” and that this was “the fault of the workers.” Claimant contended that there were no warning signs of work in progress.

On cross-examination, Claimant testified that he did not see the cutting and welding going on.

The complaint alleged in part as follows:

“12. That Claimant has filed a grievance at the Institutional level, but has not been contacted by the Grievance Board.”

At one point in Claimant’s testimony, he testified as follows:

“Q. Did you present this grievance to the Institutional Inquiry Board, the IIB?
A. Oh, yes, sir.
Q. And what action, if any, did they take on that grievance?
A. Well, they stated that Captain Stanley didn’t have any knowledge about it.
Q. So, they denied your grievance?
A. Yes, sir.
Q. Did you appeal to the ARB, the Administrative Review Board, in Springfield?
A. No, sir. I had someone else fill this Institutional Grievance out for me, because I didn’t know how to do it myself.
Q. Well, do you know what the Administrative Review Board is?
A. Not really.
Q. On your decision from the local IIB — you know what the IIB is; don’t you?
A. No.
Q. Institutional Inquiry Board. Do you know, have you ever filed a grievance with the Institutional Inquiry Board?
A. No. This is my first time here.
Q. How long have you been here?
A. Since ’88.
Q. Have you read the rules and regulations regarding grievances?
A. No, sir.
Q. Are you literate? Can you read?
A. Yes; I can read.”

It does not appear that Claimant has exhausted his available administrative remedies in compliance with section 790.60 of the Court of Claims Regulations. These regulations require that any person who files a claim before the Court of Claims shall, before seeking final disposition of his claim, exhaust all other remedies and sources of recovery. (Ill. Rev. Stat., ch. 37, par. 439.24—5; 74 Ill. Adm. Code 790.60.) In Jane Doe v. State (1987), No. 85-CC-1739, the Claimant, a patient at John J. Madden Mental Health Center, brought suit against the State after she had been sexually assaulted by another Madden patient. The Claimant, however, did not file an action against her assailant, and as a result, Respondent moved to dismiss the claim for failure to exhaust remedies pursuant to section 25 of the Court of Claims Act, and section 790.60 of the Court of Claims Regulations. Following Boe v. State (1984), 37 Ill. Ct. Cl. 72, the Court held that a Claimant “must exhaust all possible causes of action before seeking final disposition of a case filed in the Court of Claims.” (Emphasis in original). The Court determined that the language of section 25 and section 790.60 “clearly makes the exhaustion of remedies mandatory rather than optional,” and that if the Court would have waived the requirement, “the requirement would be transformed into an option, to be accepted or ignored according to the whim of all claimants.” Also, see Lyons v. State (1980), 34 Ill. Ct. Cl. 268, 271-72.

Like the Claimant in Essex, Claimant in this case failed to exhaust all remedies available to him prior to seeking final disposition of his claim in the Court of Claims.

It is therefore ordered, adjudged and decreed that this claim is dismissed, and forever barred.


author: Montana, C.J.

text:
    (No. 91-CC-0234
    Travenol Laboratories, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed October 21, 1991.

    Martin, Craig, Chester & Sonnenscheim, for Claimant.
    Roland W. Burris, Attorney General (Frank Lyons, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Montana, C.J.

This cause comes on to be heard following the joint stipulation of the parties, due notice having been given, and the Court being advised, finds:

On July 24, 1991, Claimant, Travenol Laboratories, Inc., filed this action seeking payment of attorneys’ fees and costs. Jurisdiction is pursuant to section 7(i) of the Court of Claims Act. (Ill. Rev. Stat., ch. 37, par. 439.7(i).) In pertinent part Claimant’s complaint alleges the following:

“1. In 1986 Travenol initiated an action entitled Travenol Laboratories, Inc. v. J. Thomas Johnson, et al., No. 86 CH 2417, in the Circuit Court of Cook County, Illinois, Chancery Division. The complaint sought a determination as to the validity of a regulation promulgated by the Illinois Department of Revenue (the ‘Department’), pursuant to which the Department taxed the sale of medical appliances sold to health care professionals. Travenol also sought an award of its attorneys’ fees and costs incurred in connection with the prosecution of the litigation.
2. On November 23,1987, the Circuit Court of Cook County granted Travenol’s motion for summary judgment, declared the regulation in question to be invalid and unauthorized by statute, and ordered the return of the monies which had previously been paid by Travenol under protest.
3. Defendants appealed and on June 24, 1988, the Illinois Appellate Court, First District, dismissed the appeal as being premature because the matter of Travenol’s attorneys’ fees had not yet been resolved. The Court held that the question of attorneys’ fees was strictly ancillary to the issue of the validity of the underlying regulation.
4. On August 8,1988, defendants sought leave to appeal to the Supreme Court of Illinois, but on October 12,1988, their petition was denied.
5. Travenol subsequently petitioned the trial court for its attorneys’ fees and costs, as provided by statute (Ill. Rev. Stat. ch. 127, par. 1014.1(b) (1989)), and on February 8, 1989, Judge Arkiss entered an Order awarding Travenol $21,175.00 in attorneys’ fees and $1,176.38 in costs, for a total of $22,351.38. A copy of that order is attached hereto as Exhibit A.
6. Defendants again appealed and on March 9, 1990, the Illinois Appellate Court, First District, Fifth Division, affirmed the trial court’s decision, finding that the regulation in question was invalid and that the trial court’s award of $22,351.38 in attorneys’ fees and costs was both justified and reasonable. A copy of the opinion is attached hereto as Exhibit B.
7. No appeal was taken from the Appellate Court’s decision. The Mandate, a copy of which is attached hereto as Exhibit C, was issued on June 7,1990.
8. Travenol has incurred and paid for the aforementioned attorneys’ fees and costs and is the sole person or entity entitled to the recovery thereof.”

On September 11, 1991, the parties through their counsel filed the joint stipulation wherein they agreed to the following:

“It is hereby stipulated between Travenol Laboratories, Inc. and the State of Illinois, acting through their respective attorneys, that the allegations made in the Complaint filed herein are true and that Travenol Laboratories, Inc. is entitled to payment of the amount sought, $22,351.38 in full.”

This Court is not bound by such stipulations but it does not seek to interpose a controversy where none appears to exist. In cases such as the one at bar, the role of this Court appears to be just a conduit for payment.

Wherefore, it is hereby ordered that the Claimant be, and hereby is, awarded $22,351.38.