text:
    (No. 81-CC-1610
    Illinois Heating & Ventilating Company, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 1, 1981.

    Grant & Schencker, P.C., for Claimant.
    Tyrone C. Fahner, Attorney General (John R. Fanone, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

The Claimant, Illinois Heating & Ventilating Co., Inc., seeks a recovery in the Court of Claims based upon a contract with the Capital Development Board.

The parties have entered into negotiations and have settled and compromised each of the issues and items of damages claimed by the Claimant. Based upon said negotiation the parties have executed a joint stipulation of facts as follows:

1. That this claim arises out of services performed by Claimant for the Capital Development Board in the Addison Specialized Living Center construction project during the years of 1978,1979 and 1980.

2. That as a result of various problems which arose between Respondent and its general contractor, the entire project was considerably delayed.

3. That the delay was unreasonable and not attributable to any act of the Claimant, but, rather, attributable to acts or omissions of Respondent.

4. That notwithstanding the delay, Claimant performed its services in accordance with the contract.

5. That as a direct result of the delay, Claimant incurred greater costs in the performance of its work than it would have if the delay had not occurred.

6. That both parties agree that the delay caused Claimant to suffer damages in the amount of $29,500.00.

7. That both parties agree to the granting of an award in the amount of $29,500.00 to Claimant, and that said award will constitute full and final satisfaction of the claim herein.

8. That Claimant, in receiving the above award, agrees to relinquish and waive any right to additional damages from Respondent incurred in its performance of the contract which is the subject of this claim.

9. That Claimant, by its acceptance of the above award furthermore releases Respondent from any further liability arising out of or on account of the services performed under this contract.

10. That no other evidence, oral or written, will be presented to the Court in this claim.

11. That both parties waive hearing and the filing of briefs.

The Court has reviewed the facts set forth in the joint stipulation and considered the legal issues to be determined. It appears that the stipulation is accurate and that it has been entered into legitimately.

It also appears that the facts agreed upon are sufficient to sustain Claimant’s cause of action and that the granting of an award would be fair and consistent with the findings.

While the Court is necessarily limited in its findings of fact to those presented to it by the parties, it is not bound by a stipulation between the parties as to the amount to be awarded, just as it is not bound by such a stipulation in its findings of law.

It is the opinion of the Court, however, that based upon the undisputed facts before it, that the Respondent is liable to Claimant.

The Court also is of the opinion that an award of $29,500.00 (twenty nine thousand five hundred and 00/100 dollars) is fair and reasonable based upon the negotiations settlement and compromise of the parties.

It is hereby ordered the Claimant be and the same is hereby awarded the sum of $29,500.00 (twenty nine thousand five hundred and 00/100 dollars).


source: Caselaw Access Project

author: Roe, C. J.

license: Public Domain

text:
    (No. 81-CC-1757
    Prospect Heights Fire Protection District, Claimant, v. The State of Illinois, Respondent.

      Order filed August 31, 1981.

    James L. McCabe, for Claimant.

      Tyrone C. Fahner, Attorney General (Andrew R. Jarett, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This cause is before the Court on Respondent’s motion to dismiss, the response thereto filed by Claimant, and Respondent’s reply to that response, due notice having been given, and the Court being fully advised in the premises.

This is a claim in the amount of $4,492.70 allegedly due Claimant as a matching grant for training under section 10 of the Fire Protection Training Act (Ill. Rev. Stat. 1979, ch. 85, par. 540 et seq.). The reason stated by Claimant for refusal of Respondent to pay said sum was that the appropriation from which it should have been paid had lapsed. However, an examination of the departmental report, which is prima facie evidence of the facts contained therein, and the information filed by Claimant along with the complaint indicates that the facts are not that simple.

Attached to the complaint is a statement by Captain Donald R. Gould, Jr., the training officer for the Prospect Heights Fire Department. Essentially Captain Gould described the circumstances leading up to this claim as follows. When Claimant began its training program, the Office of the State Fire Marshall, Division of Personnel Standards and Education, sent a representative, David Baird, whose job it was to assist Captain Gould in completing the paper work necessary to qualify for the program and to help set up a bookkeeping system. Captain Gould stated that, after meeting with Mr. Baird, assurances were given that everything was going well. On several other occasions, he said he was again assured that the program was “in good shape” after telephoning Mr. Baird to check its status.

After a year of training, it became time to claim the reimbursement. Before filling out the necessary papers, Captain Gould said he contacted Mr. Baird again and was told that the procedure he was using was correct. The forms were then completed and filed before the deadline. Approximately five weeks later, a call was made to Mr. Baird to inquire as to any problems which may have arisen and to check when payment would be made. Captain Gould said he was told nothing was wrong and that warrants would be mailed in about two weeks. Two weeks later, instead of receiving the grant, his forms were returned along with a notice that because no course approval form was in the file, their program was ineligible for the matching grant.

Next, Captain Gould recounted his efforts to correct the problem. He began by calling Mr. Baird again who was said to have told him that he would investigate and call back. He returned the call the next day and said there was nothing he could do. He then contacted the Office of the State Fire Marshall, Division of Personnel Standards and Education, and spoke with Glenna Senger. He said she informed him that there was nothing which could be done, because the time for filing course approval forms had come and gone. He said she also said that Prospect Heights was sent a letter requesting the form. Captain Gould claims to never have received it.

The next day he contacted a Chief McCoy, said to be the head of the training program, and told him of the problem. He was told that a man would be sent up to review the records and the program. A Mr. Grimstead went to Prospect Heights, reviewed the program, told Captain Gould that it looked good, and that there must be some misunderstanding. Captain Gould then states that Mr. Grimstead told him to compile all the papers, send them to him, and that he would take care of filing with the Court of Claims.

A week later Captain Gould sent them in. He waited three weeks and then spoke with Glenna Senger again. She was said to have told him that they had not gone over the forms yet but would do so within the week. He said she also told him that any suit in the Court of Claims concerning this matter would have to be filed by him and not her office.

After a review of the forms, Captain Gould said he was notified that there were some mistakes which had to be corrected. About a month later the forms were returned to him along with instructions as to how to file a claim in this Court. The culmination of Captain Gould’s efforts in dealing with the bureaucracy is the claim at bar.

According to the departmental report, which does not conflict with the statement by Captain Gould, the program would apparently have been approved had a course approval been timely filed. However, the appropriation made by the legislature to fund this program was insufficient to reimburse all qualifying municipalities at the 50 percent level as defined in the Fire Protection Training Act. (Ill. Rev. Stat. 1979, ch. 85, par. 540.) The Act covers such a situation, and in that event provides as follows:.

“If at the time of the annual reimbursement to local governmental agencies participating in the training program there is an insufficient appropriation to make reimbursement in full, the appropriation shall be apportioned among the participating local governmental agencies.”

Accordingly, the qualifying municipalities were reimbursed at what amounted to a 37-percent level with three cents having lapsed. No money was left for Prospect Heights.

The Court of Claims cannot make an award in a case such as this regardless of the unfortunate circumstances giving rise to the claim. Section 30 of the State Finance Act (Ill. Rev. Stat. 1979, ch. 127, par. 166) states as follows:

“No officer, institution, department, board or commission shall contract any indebtedness on behalf of the State, nor assume to bind the State in an amount in excess of the money appropriated, unless expressly authorized by law.”

The claim here cannot be paid because it constitutes an obligation incurred in excess of the appropriation. The Court of Claims is not the place to turn for a deficiency appropriation or a supplemental appropriation. For this Court to grant an award in this case would be to make an appropriation. By the Illinois Constitution, this power is vested solely with the legislature. Ill. Const., art. VIII , sec. 2(b).

Furthermore, having failed to obtain course approval within the required time, Claimant had no right to share in the funds. The fact that Claimant may have been misled in its dealings with Respondent is not relevant to the issue. Although equitably it would seem that Claimant is due reimbursement (albeit at somewhat lower than the 37-percent rate owing to a new apportionment) we do not have equitable jurisdiction.

This claim is hereby denied.


text:
    (No. 81-CC-1999
    William Acoff et al., Claimants, v. The State of Illinois, Respondent.

      Opinion filed September 21, 1981.

    Legal Assistance Foundation of Chicago (Sheldon Roodman and Thomas Johnson, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Sandra L. Andina, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This cause coming on to be heard on the stipulation by Respondent and the Court being fully advised in the premises; that 17,659 Claimants seek individual judgments in specified amounts as listed in exhibit A to their complaint; that such judgments, in the aggregate amount of $466,727.37, consist of benefits for which they applied, but did not receive, under the Illinois Department of Public Aid’s General Assistance (GA) Program between November 14, 1975, and July 31, 1976; that this stipulation arises out of settlement of U.S. District Court litigation entitled Carey v. Quern, 75 C 3908, and that authorization for this expenditure can be found in article VI of the Public Aid Code. Ill. Rev. Stat. 1979, ch. 23, par. 6 — 1 et seq.

The amount due would have been paid in the regular course of business had the claim been presented to the proper office at the appropriate time.

The sole reason said claim was not previously paid is the lapse of the State funds appropriated to the Department for the period during which the debt was incurred. Had this claim been presented before the lapsing of such funds, this claim would normally have been paid, the same having been confirmed by the written report of the Department, a copy of said report being attached to the stipulation by Respondent.

It is therefore ordered that Claimants, William Acoff et al., be and are hereby awarded the sums specified in exhibit A of their complaint, in an aggregate amount of $466,727.37 (four hundred sixty six thousand seven hundred twenty seven dollars and thirty seven cents).


author: Poch, J.

text:
    (No. 81-CC-2030
    University of Chicago, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 4, 1982.

    Raymond W. Busch, for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The record in this cause indicates that the purpose of the expenditure by the Department of Children and Family Services for which this claim was filed was for medical services provided by the Claimant for Lynae Manard, a child in the custody of the Department of Children and Family Services.

The Department of Children and Family Services has submitted a report on this claim which states that there were no funds remaining in the appropriation out of which a portion of this claim should have been paid, (fiscal year 1980, appropriation and fund No. 001-41817-4400-08-00), but that funds were available to the Department for the payment of that portion of the claim in appropriation and fund No. 001-41817-4400-03-00 (fiscal year 1980) if the Department had requested that a transfer bill be passed by the General Assembly. Twenty-two dollars of this claim would have been paid out of fiscal year 1979, appropriation and fund No. 001-41817-4400-08-00, of which $225,421.20 lapsed.

Section 30 of An Act in relation to State Finance (Ill. Rev. Stat. 1979, ch. 127, par. 166) prohibits obligating the State to any indebtedness in excess of the money appropriated for a department, unless expressly authorized by law. Therefore, the only way an award on this claim may be made is if this expenditure was expressly authorized by law. Previously, expenditures for food and medical care for prisoners have been recognized to be expressly authorized by law. (Fergus v. Brady (1917), 277 Ill. 272.) Also, the Court has considered this problem in connection with the apprehension and return of fugitives. In those cases, the Court has made awards on the basis that payment was expressly authorized by law.

The child for whom Claimant performed the services for which payment is sought was placed in the custody of the Department of Children and Family Services by an order of the circuit court of Cook County pursuant to the Juvenile Court Act. (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 1 et seq.) Section 1 — 12 of the Juvenile Court Act imposes upon the legal custodian of a child the duty to provide Mm with food, shelter, education and ordinary medical care. Ill. Rev. Stat. 1979, ch. 37, par. -701 — 12.

The Court has considered the limitations placed on the Department of Children and Family Services by the General Assembly. It is the function of the General Assembly to control the expenditures of public funds by the various agencies of State government. However, this is a situation very close to that of Fergus v. Brady. Here, as in Fergus v. Brady, the State agency had custody by court order and was authorized by law to provide basic necessities for the person in custody, in this instance a child.

The invoice for these services was submitted after the close of the fiscal year, but the Department of Children and Family Services was required to pay that invoice out of funds for that prior fiscal year. This situation leads to unique and difficult forecasting problems for the Department of Children and Family Services. The provider of these services should not be penalized because the Department is unable to accurately forecast specific appropriation fund requirements for each fiscal yeár. Had the Department been able to properly forecast, sufficient funds would have been available for the payment of this claim.

Because the expenditure here in question was required by law, it is hereby ordered that the Claimant, University of Chicago, be and is hereby awarded the sum of $209.00 (two hundred nine dollars even).


text:
    (No. 81-CC-2241
    Affiliated Midwest Hospital, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 16, 1982.

    McKenzie and McKenzie, for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The record in this cause indicates that the purpose of the expenditure by the Department of Children and Family Services for which this claim was filed was for medical services provided by the Claimant in fiscal years 1980 and 1981 for Sandra Rimschnieder, a child in the custody of the Department of Children and Family Services.

The Department of Children and Family Services has submitted a report on this claim which states that the claim would have been paid out of appropriation and fund No. 001-41817-4400-06-00 (institutional care) had the claim been timely presented. There were sufficient funds remaining in the appropriation in fiscal year 1981. There were not sufficient funds remaining in fiscal year 1980 to pay that portion of the claim. However, funds were available to the Department for the payment of this claim in appropriation and fund No. 001-41817-4400-02-00 (foster care services), if the Department had requested that a transfer bill be passed by the General Assembly.

Section 30 of An Act in relation to State Finance (Ill. Rev. Stat. 1979, ch. 127, par. 166) prohibits obligating the State to any indebtedness in excess of the money appropriated for a department, unless expressly authorized by law.

Therefore, the only way an award on the fiscal year 1980 portion of this claim may be made is if this expenditure was expressly authorized by law. Previously, expenditures for food and medical care for prisoners have been recognized to be expressly authorized by law. (Fergus v. Brady (1917), 277 Ill. 272.) Also, the Court has considered this problem in connection with the apprehension and return of fugitives. In those cases, the Court has made awards on the basis that payment was expressly authorized by law.

The child for whom Claimant performed the services for which payment is sought was placed in the custody of the Department of Children and Family Services by an order of the circuit court of Cook County pursuant to the Juvenile Court Act. (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 1 et seq.) Section 1 — 12 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 12) imposes upon the legal custodian of a child the duty to provide him with food, shelter, education and ordinary medical care.

The Court has considered the limitations placed on the Department of Children and Family Services by the General Assembly. It is the function of the General Assembly to control the expenditures of public funds by the various agencies of State government. However, this is a situation very close to that of Fergus v. Brady. Here, as in Fergus v. Brady, the State agency had custody by court order and was authorized by law to provide basic necessities for the persons in custody, in this instance a child.

The invoices for these services were submitted after the close of the. fiscal year, but the Department of Children and Family Services was required to pay the invoices out of funds for that prior fiscal year. This situation leads to unique and difficult forecasting problems for the Department of Children and Family Services. The provider of these services should not be penalized because the Department is unable to accurately forecast specific appropriation fund requirements for each fiscal year. Had the Department been able to properly forecast, sufficient funds would have been available for the payment of all of this claim.

Because the expenditure here in question was required by law, it is hereby ordered that the Claimant, Affiliated Midwest Hospital, be and is hereby awarded the sum of $9,999.00 (nine thousand nine hundred ninety nine dollars and no cents).


text:
    (No. 81-CC-2283
    James Chapman, Claimant, v. The State of Illinois, Respondent.

      Order filed August 31, 1981.

    James Chapman, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Andrew R. Jarett, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This matter comes before the Court on the joint stipulation of Claimant and the Attorney General.

The claim herein arose out of an injury sustained by Claimant to his left index finger while working on a banding machine in the Joliet prison tailor shop on or about October 10, 1980.

amount of $75.00, and the Court being fully advised in the premises;

It is hereby ordered that Claimant is awarded in full and final satisfaction of the claim herein or any other claim arising out of the same occurrence, the amount of $75.00 (seventy-five dollars and no/100).


text:
    (No. 81-CC-2474
    Material Service Corporation, Claimant, v. The State of Illinois, Respondent.

      Order filed September 11, 1981.

    Material Service Corporation, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This matter coming on to be heard upon the motion of Respondent for summary judgment, due notice having been given and the Court being fully advised in this matter, the Court hereby finds:

1. That Lester Crown is president and director of Claimant herein, Material Service Corporation;

2. That Lester Crown, president and director of Claimant herein, admitted in testimony in Federal court (United States v. Craig (N.D. Ill. 1976), No. 74CR879) that he gave money to members of the Illinois General Assembly for the purpose of obtaining passage in the Illinois General Assembly of certain legislation;

3. That section 10.1 of The Illinois Purchasing Act (Ill. Rev. Stat. 1979, ch. 127, par. 132.10 — 1) provides that the State is prohibited from contracting or subcontracting with a person or business who has made an admission, which is a matter of record, of bribery of an officer or employee of the State of Illinois;

4. That the contract upon which this claim is based was entered into in violation of section 10.1 of The Illinois Purchasing Act (Ill. Rev. Stat. 1979, ch. 127, par. 132.10 — 1);

5. That section 10 of The Illinois Purchasing Act (Ill. Rev. Stat. 1979, ch. 127, par. 132.10) provides that any contract entered into in violation of The Illinois Purchasing Act is void;

6. That no genuine issue of fact exists in this matter.

It is hereby ordered that the motion of the Respondent for summary judgment be and the same is hereby granted and the claim is dismissed.


author: Roe, C.J.

text:
    (No. 81-CC-2744
    St. Therese Hospital, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 19, 1982.

    St. Therese Hospital, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

The record in this cause indicates that the purpose of the expenditure by the Department of Children and Family Services for which this claim was filed was for medical services provided by Claimant for Terry Redmond, a child in the custody of the Department of Children and Family Services.

The Department of Children and Family Services has submitted a report on this claim which states that there were no funds remaining in the appropriation out of which this claim should have been paid (appropriation and fund No. 001-41817-4400-08-00), but that funds were available to the Department for the payment of this claim in appropriation and fund No. 001-41817-4400-03-00 if the Department had requested that a transfer bill be passed by the General Assembly.

Section 30 of An Act in relation to State Finance (Ill. Rev. Stat. 1979, ch. 127, par. 166) prohibits obligating the State to any indebtedness in excess of the money appropriated for a department, unless expressly authorized by law. Therefore, the only way an award on this claim may be made is if this expenditure was expressly authorized by law. Previously, expenditures for food and medical care for prisoners have been recognized to be expressly authorized by law. (Fergus v. Brady (1917), 277 Ill. 272). Also, the Court has considered this problem in connection with the apprehension and return of fugitives. In those cases, the Court has made awards on the basis that payment was expressly authorized by law.

The child for whom Claimant performed the services for which payment is sought was placed in the custody of the Department of Children and Family Services by an order of the circuit court of Cook County pursuant to the Juvenile Court Act. (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 1 et seq.) Section 1 — 12 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 12) imposes upon the legal custodian of a child the duty to provide him with food, shelter, education and ordinary medical care.

The Court has considered the limitations placed on the Department of Children and Family Services by the General Assembly. It is the function of the General Assembly to control the expenditures of public funds by the various agencies of State government. However, this is a situation very close to that of Fergus v. Brady. Here, as in Fergus v. Brady, the State agency had custody by court order and was authorized by law to provide basic necessities for the person in custody, in this instance a child.

The invoice for these services was submitted after the close of the fiscal year, but the Department of Children and Family Services was required to pay that invoice out of funds for that prior fiscal year. This situation leads to unique and difficult forecasting problems for the Department of Children and Family Services. The provider of these services should not be penalized because the Department is unable to accurately forecast specific appropriation fund requirements for each fiscal year. Had the Department been able to properly forecast, sufficient funds would have been available for the payment of this claim.

Because the expenditure here in question was required by law, it is hereby ordered that the Claimant, St. Therese Hospital be and is hereby awarded the sum of $398.20 (three hundred ninety-eight and 20/100 dollars).


text:
    (No. 81-CC-2769
    Francisco R. Rivera, Claimant, v. The State of Illinois, Respondent.

      Order filed July 28, 1981.

    Francisco R. Rivera, pro se, for Claimant.

      Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This matter coming on to be heard upon the motion of Respondent to dismiss the claim herein, and it appearing to the Court that Claimant has received due notice of said motion, and the Court being fully advised in the premises;

Finds that this Court has no jurisdiction to review this administrative decision of the Division of Unemployment Insurance of the Department of Labor.

It is hereby ordered that the motion of Respondent be, and the same is, hereby granted and the claim herein is hereby dismissed with prejudice.


text:
    (No. 81-CC-2771
    St. Paul Fire and Marine Insurance Company as Subrogee of Drackett Products Company, Claimant, v. The State of Illinois, Respondent.

      Order filed April 26, 1982.

    Van Emden, Busch, and Van Emden, for Claimant.
    Tyrone C. Fahner, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This matter coming to be heard on Respondent’s motion for summary judgment, due notice having been served, and the Court being fully advised in the premises, we find as follows:

Claimant alleges that while driving on Interstate 80-94 in Cook County, the top of his trailer struck the underside of the Torrence Avenue overpass. Claimant further maintains that his trailer was not in excess of 13 feet, 6 inches, as is required by section 15 — 103 of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95½, par. 15 — 103). The allegation against Respondent is that it was negligent for maintaining a low-clearance overpass without posting warning signs.

Respondent bases its motion upon an affidavit from the Department of Transportation. This affidavit states, in part, as follows:

“3. That the vertical clearances on Interstate 80 under the Torrence Avenue overpass were from a minimum of 15'-9", to a maximum of 16'-5", prior to, on, and, subsequent to January 10, 1980.
4. That there are no overpasses similar to the one described in Claimant’s complaint on any Illinois Highway in this area.” (Exhibit A to Respondent’s motion.)

Respondent concludes from this information that Claimant either did not strike the overpass named in the complaint (or any other overpass in the area), or that Claimant’s vehicle exceeded 15 feet 9 inches in height. Either instance is sufficient ground to grant judgment for Respondent.

Respondent’s motion is hereby granted and Claimant’s claim is hereby denied.


text:
    (No. 81-CC-2930
    Bernheim, Kahn & Lozano, Architects, Ltd., A Professional Corporation, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 30, 1981.

    Andrew J. Maxwell, for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause coming on to be heard on the joint stipulation of the parties and the Court being fully advised in the premises;

This claim arises out of services performed by Claimant for the Capital Development Board in the Addison Specialized Living Center construction project during the years 1976, 1977, 1978, 1979 and 1980.

Claimant performed its services in accordance with its contract with the Capital Development Board on this project. Claimant was damaged as a result of delays in the project which were not attributable to any act of the Claimant, but were attributable to acts or omissions of the Capital Development Board.

The Respondent has investigated the damages herein claimed, and both parties agree that the Claimant was damaged in the amount of $26,377.00.

It is hereby ordered that the Claimant be awarded, in full satisfaction of any and all claims arising out of the contract which is the subject of this claim, the sum of $26,377.00 (twenty six thousand, three hundred seventy-seven dollars and no cents).


text:
    (Nos. 82-CC-0052, 82-CC-0069 cons.
    Good Samaritan Hospital, Claimant, v. The State of Illinois, Respondent.

      Order filed May 5, 1982.

    David Campbell, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

These consolidated causes, coming on to be heard on the motion of Respondent to dismiss, due notice having been given, and the Court being fully advised finds as follows:

1. That Claimant, a medical vendor, seeks compensation from the Illinois Department of Public Aid (IDPA) for hospital services rendered to two public aid recipients.

2. That, as fully set forth in the departmental report, which is prima facie evidence of the facts therein set forth, in each instance the services consisted of care and treatment directly relating to sterilization surgery — specifically, hysterectomy surgery — performed upon the recipient-patient during her inpatient stay in Claimant’s facility.

3. That the Respondent’s payment obligation for such surgeries and related hospital services is limited by certain conditions, as set forth in Department (IDPA) Rule 4.15 and related IDPA policy directives, as well as in Federal law. See D. R. Exhibits Nos. R-l, R-2 and R-3. Two such conditions, both relating to hysterectomy surgery, are: the patient’s written acknowledgement of her understanding that the planned surgery will render her permanently incapable of reproducing; and the physician’s written statement which certifies the medical necessity of that particular surgical procedure. Pre-surgery completion of the relevant documents, required in order to comply with these conditions, is the joint responsibility of the physician and the hospital.

4. That Claimant was made aware of the aforementioned requirements, but has failed to document that it had complied with them, as to either of the subject patient accounts. IDPA’s one-year deadline for Claimant’s submittal of acceptable rebillings of these accounts— demonstrating such compliance — has now past. See Department Rule 4.015, D. R. Exhibit No. R-5.

5. That said Department Rule 4.015 serves to limit the period of time, following rendition of services, during which a medical vendor may correct any errors and deficiencies in its billings of such services to IDPA. As the Claimant has not submitted acceptable billings within the time prescribed, its claims are now ripe for final consideration and adjudication by the Court.

6. That a vendor’s claim to a “vendor payment”, enforceable under section 11 — 13 of the Public Aid Code (Ill. Rev. Stat. 1979, ch. 23, par. 11 — 13), may be “limited by regulations of the Illinois Department”. The above-mentioned regulations (Department Rules) impose requirements which Claimant must meet if it is to receive vendor payments for these patients’ services. Claimant has not met the requirements of such regulations.

7. That payment of the subject claims would be contrary to the above-mention regulations.

It is hereby ordered that each of these claims be, and hereby is dismissed.


text:
    (No. 82-CC-0275
    Thomas C. Wills, Claimant, v. The State of Illinois, Respondent.

      Order filed January 18, 1982.

    Laport-Sorrentino Associates, Ltd., for Claimant.
    Tyrone C. Fahner, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This matter coming to be heard upon Respondent’s motion to dismiss, due notice having been given, and the Court being fully advised in the premises, we find as follows:

The instant claim is a wrongful death action arising from a fatal accident which occurred on September 10, 1979, at Elgin State Mental Hospital. Claimant’s decedent, Angeline A. Graham, was working in the laundry room at the hospital when she was struck by a large metal plate which became detached from a clothes extractor and flew across the room.

Respondent asserts in its motion that since Claimant’s decedent was a State employee and was killed during the course of her duties as an employee, the claim comes under the provisions of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138 et seq.). Respondent also contends that the remedy under said Act is exclusive and that the Court of Claims is without jurisdiction to hear the claim. We agree. This same issue was before the Court in the case of Thomas v. State (1980), 33 Ill. Ct. Cl. 289, involving the four prison guards who were killed during the July 22, 1978, riot at Pontiac Correctional Center. There, we held that the survivors of a State employee killed on the job while pursuing the course of his duties were limited to recovery only under the Workers’ Compensation Act.

The instant claim presents the same issue, and, as we have previously held, the Court lacks jurisdiction to hear it.

It is hereby ordered that the instant claim be, and the same is hereby dismissed.


text:
    (No. 82-CC-0312
    Clarence Eugene Wilson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 26, 1982.

    Clarence Eugene Wilson, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney .General, of counsel), for Respondent.
   Poch, J.

This claim comes before the Court upon the joint stipulation of the parties, which states as follows:

1. That Claimant lost $10.00 a month of his stipend for the months of March, April, May and July while incarcerated at Pontiac Correctional Center.

2. That Respondent concedes liability for the loss of said property to the extent agreed upon herein.

3. That both parties agree that the value of the lost property amounts to $40.00.

4. That no other evidence, oral or written, will be presented to the Court, and both parties waive briefs.

5. That both parties agree to the granting of an award to Claimant for $40.00.

6. That both parties agree that said award will constitute full and final satisfaction of the claim herein or any other claim arising out of the same occurrence.

While the Court is not necessarily bound by a stipulation such as this, it has no desire to interpose a controversy where none appears to exist. The stipulation submitted by the parties appears to have been entered into freely and fairly, and its contents appear to be reasonable. The Court, therefore, finds no reason not to accept it and to follow its recommendation of an award for $40.00.

Claimant is hereby awarded the amount of $40.00 in full and final satisfaction of the instant claim.


author: Holderman, J.

text:
    (No. 82-CC-0498
    Ude, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed April 19, 1982.

    Becker, Dufor and Yarbrough, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

This cause having come for consideration on the Respondent’s motion to dismiss and the Court being duly advised in the premises:

Finds, that the services for which the Claimant is seeking reimbursement were satisfactorily performed. An appropriation was made to cover this expenditure in section 23 of Senate Bill 1665 which stated:

“The appropriations herein made, unless otherwise specifically indicated, are for the acquisition, construction, re-construction, re-modeling, rehabilitation, improvement, planning and installation of capital facilities, buildings, and equipment both fixed and movable, and for the acquisition of an improvement to real property and interest in real property required or expected to be required in connection herewith; provided, however, that no contract shall be - entered into or obligation incurred for any expenditures from the appropriation made herein until after the purpose and amounts had been approved in writing by the Governor.”

This written approval by the Governor is called a capital release. In this instance, the Governor, J&mes Thompson, never approved a capital release for the appropriation account from which this claim would have been paid. Therefore, the condition precedent to payment of this claim has not been performed. The Illinois Constitution and section 30 of the State Finance Act (Ill. Const. 1970, art. VIII, sec. 2b; Ill. Rev. Stat., ch. 127, par. 166), make it the duty of the General Assembly to appropriate money for expenditures by State agencies. In this instance the General Assembly has made approval by the Governor an intricate part of their appropriation. For this Court to ignore this condition precedent would be an attempt by this Court to appropriate monies in violation of the Illinois Constitution and section 30 of the State Finance Act (Ill. Const. 1970, art. VIII, sec. 2b; Ill. Rev. Stat., ch. 127, par. 166).

It is hereby ordered, that the motion to dismiss of the Respondent is hereby granted and this case is denied with prejudice.


text:
    (No. 82-CC-0540
    Flora Braziel, Administratrix of the Estate of Edward Clinton Allen, a/k/a Willie Graham, Deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 4, 1981.

    Harvey Grossman, for Claimant.
    Tyrone C. Fahner, Attorney General (William R. Wallin, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This is a claim for attorney fees pursuant to “An Act to provide for representation and indemnification” (Ill. Rev. Stat. 1979, ch. 127, par. 1301 et seq.) (herein the Representation and Indemnification Act). The Claimant sued several State officers and employees in a case entitled Braziel v. Sielaff, No. 81-3043, in which he alleged violation of his civil rights guaranteed by the United States Constitution while he was in the custody of the Department of Corrections. That case was settled with an agreement signed September 3, 1981, which provided, among other things, that the defendant State officers and employees pay $42,000. The State officers and employees assigned their rights to indemnification to the plaintiff, who is the Claimant here.

Under the Representation and Indemnification Act, a State officer or employee is entitled to representation by the Attorney General and indemnification for damages awarded, court costs, and attorney fees when he is sued in a civil proceeding in which the plaintiff alleges deprivation of a civil or constitutional right arising out of any act or omission occurring within the scope of his employment. The Act was passed in response to developments in Federal law which subjected State officers and employees to Federal suit.

Whether Claimant here is entitled to an award depends on whether the State officers and employees would be entitled to indemnification under the Representation and Indemnification Act. The State officers and employees sued were all officers or employees of the Department of Corrections and were represented by the Attorney General. Thus, he has determined that the State officers and employees were entitled to the benefits of the Act.

We have examined the complaint and the settlement agreement and have determined that the State officers and employees sued would be entitled to indemnification.

They were acting within the scope of their employment. The Court did not find that the conduct was intentional, wilful or wanton. We further find that the State officers and employees have assigned their right to Claimant here and that an award to Claimant is just and reasonable. Claimant is hereby awarded $42,000.00.


text:
    (No. 82-CC-0626
    Robert B. Atherton, Claimant, v. The State of Illinois, Respondent.

      Order filed February 19, 1982.

    Wayne Whitmore, for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This matter coming to be heard upon the motion of Respondent to dismiss the claim herein, due notice having been given and the Court being fully advised in the premises;

Finds that because section 11 — 3 of the Illinois Public Aid Code (Ill. Rev. Stat. 1979, ch. 23, par. 11 — 3) and Department of Public Aid Rules 4.015 and 4.016 provide that payment for vendor services is absolutely inalienable by assignment, Claimant is ineligible for payment on this claim since he is not the provider of the services.

It is hereby ordered that the motion of Respondent be, and the same is, hereby granted, and the claim herein is hereby dismissed.


text:
    (No. 82-CC-0662
    Zayre 365, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 4, 1982.

    Zayre 365, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The record in this cause indicates that the purpose of the expenditure by the Department of Children and Family Services for which this claim was filed was for clothing provided by Claimant to children in custody of the Department of Children and Family Services.

The Department of Children and Family Services has submitted a report on this claim which states that $280,039.73 lapsed in the appropriate fund in FY 81 but that there were no funds remaining in the appropriation out of which this claim should have been paid in FY 80 (appropriation & fund No. 001-41817-4400-08-00), but that funds were available to the Department for the payment of this claim in FY 80 in appropriation and fund No. 001-41817-4400-03-00 if the Department had requested that a transfer bill be passed by the General Assembly.

Section 30 of An Act in Relation to State Finance (Ill. Rev. Stat. 1979, ch. 127, par. 166) prohibits obligating the State to any indebtedness in excess of the money appropriated for a department, unless expressly authorized by law. Therefore, the only way an award on this claim may be made is if this expenditure was expressly authorized by law. Previously, expenditures for food and medical care for prisoners have been recognized to be expressly authorized by law. (Fergus v. Brady (1917), 277 Ill. 272). Also, the Court has considered this problem in connection with the apprehension and return of fugitives. In those cases, the Court has made awards on the basis that payment was expressly authorized by law.

The children for whom Claimant provided the clothing for which payment is sought were placed in the custody of the Department of Children and Family Services by orders of the circuit court of Cook County pursuant to the Juvenile Court Act. (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 1 et seq.) Section 1 — 12 of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 12) imposes upon the legal custodian of a child the duty to provide him with food, shelter, education and ordinary medical care.

The Court has considered the limitations placed on the Department of Children and Family Services by the General Assembly. It is the function of the General Assembly to control the expenditures of public funds by the various agencies of State government. However, this is a situation very close to that of Fergus v. Brady. Here, as in Fergus v. Brady, the State agency had custody by court order and was authorized by law to provide basic necessities for the person in custody, in this instance children.

The invoice for these services was submitted after the close of the fiscal year, but the Department of Children and Family Services was required to pay that invoice out of funds for that prior fiscal year. This situation leads to unique and difficult forecasting problems for the Department of Children and Family Services. The provider of these services should not be penalized because the Department is unable to accurately forecast specific appropriation fund requirements for each fiscal year. Had the Department been able to properly forecast, sufficient funds would have been available for the payment of this claim.

Because the expenditure here in question was required by law, it is hereby ordered that the Claimant, Zayre 365, be and is hereby awarded the sum of $414.07.


text:
    (No. 82-CC-1259
    Dunlap & Boyd, Ltd., Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 1, 1982.

    Dunlap & Boyd, Ltd., pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

The record in this cause indicates that this claim was filed for payment of the fee for legal services rendered pursuant to section 5 — 2—4 of the Unified Code of Corrections. Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 2—4.

The Attorney General has submitted a stipulation which states that Claimant was duly appointed by the Court of the Nineteenth Judicial Circuit, Lake County, Illinois, to serve as counsel in supplemental involuntary admission proceedings for a defendant acquitted of a felony by reason of insanity. The defendant was unable to pay the fee for counsel and an order was entered upon the State to pay the fee.

Section 5 — 2—4(c) of the Unified Code of Corrections provides that the fee of appointed counsel, if defendant is unable to pay, shall be paid by the State “from funds appropriated by the General Assembly for that purpose.” The General Assembly has never appropriated funds to any department or agency for this purpose. Also, the Act does not specify to whom and when such an appropriation should be made.

Claimant was appointed and performed services pursuant to statute. The State of Illinois must now pay for those services as is provided in that statute.

Therefore, it is hereby ordered that the Claimant, Dunlap & Boyd, Ltd., be and is hereby awarded the sum of $4,380.00 to be paid out of the special awards appropriation to the Court of Claims.


text:
    (No. 82-CC-1537
    Elmer Decker, Claimant, v. The State of Illinois, Respondent.

      Order filed May 10, 1982.

    Elmer Decker, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (William Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause coming on to be heard on the Respondent’s stipulation and the Court being fully advised in the premises finds that this is a claim for damages to Claimant’s wheat field, which damages were sustained as the result of the cattle belonging to the Menard Correctional Center being allowed to break free from the Menard Correctional Institutional farm and trample and eat the immature wheat field of the Claimant. In all, some 50 to 60 cattle were free for an unspecified period of time. The damages claimed were arrived at by deducting the actual harvest from the value placed on the field by a professional agriculture appraiser.

It is therefore ordered that this Claimant be and is hereby granted an award, as claimed, in the amount of $331.65.


text:
    (No. 82-CC-1569
    Iola Quarry, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed February 19, 1982.

    Lackey, Warner & Sauer, for Claimant.
    Tyrone C. Fahner, Attorney General (William Webber, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This cause coming on to be heard on the Respondent’s stipulation and the Court being fully advised in the premises finds that this is a claim for crushed stone furnished by Iola Quarry, Inc., subcontractor, to the general contractor, Ron Colder, at a cost of $5,178.58. As stipulated by the parties, the Claimant, subcontractor, did file with the Capital Development Board a lien in accordance with the provisions of section 24 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1979, ch. 82, par. 24) in order to protect its interest. The only way in which a subcontractor may protect its interest as against the owner of a construction project, in the State of Illinois, is through the Mechanics’ Liens Act. In spite of the fact that the lien was properly filed with the Capital Development Board, the general contractor was subsequently paid all of the balance due him without regard to the lien. Having failed to honor a properly filed lien, the Capital Development Board is liable to the subcontractor for the amount of its lien.

In view of the Capital Development Board’s failure to recognize a valid lien, it is the order of this Court that the Claimant be granted an award as claimed in the amount of $5,178.58.


text:
    (No. 82-CC-2378
    National Bank of Bloomington, Administrator of the Estate of John Curry, Claimant, v. The State of Illinois, Respondent.

      Order filed May 13, 1982.

    William L. Paul, for Claimant,
    Tyrone C. Fahner, Attorney General (Al Zimmer, Assistant Attorney General, of counsel), for Respondent.
   Roe, C.J.

This cause coming on for hearing on the Court’s own motion subsequent to the Respondent’s having filed a stipulated answer, and the Court now being advised in the premises;

The court finds:

1. . Claimant, National Bank of Bloomington, is the administrator of the estate of John Curry;

2. Claimant filed a certain lawsuit in the United States District Court for the Central District of Illinois alleging that Dale Kelton, Estill Ellis, Orlando Cabrera, Benny Stare, Priscilla Cole, Laverne Allen, James D. Harris and Christine Cook either committed or omitted certain acts which violated the civil rights of the Claimant’s decedent.

3. Dale Kelton, Estill Ellis, Orlando Cabrera, Benny Stare, Priscilla Cole, Laverne Allen, James D. Harris and Christine Cook are State officers and employees of the Department of Mental Health and Developmental Disabilities and are entitled to indemnification under “An Act to provide for representation and indemnification.” Ill. Rev. Stat. 1979, ch. 127, par. 1301 etseq.

4. That the Claimant and the Defendant State officers and employees entered into an agreement which compromised and settled the case before the United States District Court for. the Central District of Illinois.

5. That the said State officers and employees assigned to the Claimant their right of indemnification under the Representation and Indemnification Act. Ill. Rev. Stat. 1979, ch. 127, par. 1301 et seq.

6. The Claimant is justly entitled to the amount claimed in its claim herein.

It is therefore ordered that Claimant shall be paid in full settlement of all its claims against the State of Illinois and its officers and employees the sum of sixty-five thousand dollars ($65,000.00).


text:
    (No. 81-CC-2812
    Anita Flynn, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 21, 1981.

    Anita Flynn, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

Claimant seeks an award as the designated beneficiary of Fire Lieutenant Mort Patrick Flynn, pursuant to the provisions of the Law Enforcement Officers and Firemen Compensation Act. Ill. Rev. Stat. 1979, ch. 48, par. 281 et seq.

The Court has reviewed Claimant’s application for benefits together with the written statement of decedent’s supervising officer, and has also reviewed the medical certificate of death and the report of James R. Fahey, director of personnel of the Chicago Fire Department, and the report of the Attorney General. From its consideration of these documents, the Court finds:

1. A claim was filed herein on June 17, 1981, by Anita Flynn, sister of Mort Patrick Flynn, lieutenant in the Chicago Fire Department, who died on January 19, 1980;

2. That sections 3 and 4 of the Law Enforcement Officers and Firemen Compensation Act (Ill. Rev. Stat. 1979, ch. 48, pars. 283,284) provide that no compensation is payable under the Act unless a claim therefor is filed within one year of the death of the law enforcement officer or fireman;

3. That Anita Flynn was designated by the decedent as sole beneficiary of any award authorized by the Court in this matter;

4. That the statement of Robert Hanley, Third Department District Chief and decedent’s supervising officer, states that at the time of decedent’s death he was assigned as lieutenant in charge of Engine 112;

5. That Lieutenant Flynn died from cerebral damage to right intra-cerebral hemorrhage. There is no evidence that decedent’s death was caused by a traumatism received in the active performance of his duties as a fireman;

6. That there is nothing in the circumstances to show that decedent’s death was caused by wilful misconduct or intoxication;

7. That the facts herein reported do not comply with the requirements of the Law Enforcement Officers and Firemen Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 281 et seq.) in that this claim was not filed within one year of the death of Mort Patrick Flynn. Claimant is, therefore not entitled to an award under the Act.

By reason of the foregoing, it is hereby ordered that Claimant’s application for benefits under the provisions of the Law Enforcement Officers and Firemen Compensation Act herein, be, and the same is, hereby denied.


text:
    (No. 81-CC-2813
    In re Application of Florence J. Ward, Administratrix of the Estate of James Ward, Deceased.

      Opinion filed August 19, 1981.

    Panter, Nelson & Bernfield, Ltd., for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This cause comes on to be heard on the motion of Respondent to dismiss and the reply thereto filed by the Applicant, due notice having been given, and the Court being fully advised.

This is a claim for benefits under the provisions of Law Enforcement Officers and Firemen Compensation Act hereinafter referred to as the Act (Ill. Rev. Stat. 1971, ch. 48, par 281 et seq.) Florence J. Ward, wife of James Ward, a fireman employed by the Chicago Fire Department, made the application as administratrix of his estate.

James Ward died on February 23, 1971. The application was filed on March 3, 1972. Over nine years later, the State moved to dismiss this claim based on the running of the applicable statute of limitations. In support of its motion, the State points out that sections 3 and 4 of the Act provide in pertinent part as follows:

“If a claim therefor is made within one year of the date of death of the . . . fireman. ...”
0 0 0
“Notwithstanding Section 3, no compensation is payable under this Act unless a claim therefor is filed, within the time specified by that Section.. .

Because the time between the date of James Ward’s death and the date the application filed was in excess of one year, we find that the statute of limitations had run and are bound by law to grant the State’s motion to dismiss this claim. Regardless of the vagueness of much of the rest of the Act which the Court has had to interpret over the years, the one-year limitation is clear and unequivocal.

In her reply to the State’s motion, the Applicant asserts that the State’s motion should be barred by the doctrine of laches. Indeed this position would probably be well taken in courts of the judicial branch with general jurisdiction inasmuch as no action was taken on her claim for six and one half years, pretrial hearings were held in 1979 and 1980, Applicant was allowed to retain counsel on her behalf and required to submit additional documents in support of the claim, etc. However, the doctrine of laches is an equitable defense and this Court has steadfastly recognized that it does not have equitable jurisdiction.

Accordingly, we reluctantly dismiss this claim.


text:
    (No. 81-CC-2815

      In re Application of Bernice Schultz.

      Opinion filed March 1, 1982.

    Michael A. Buck, for Claimant.
    Tyrone C. Fahner, Attorney General (John R. Fanone, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This is a claim by a widow, the statutory beneficiary of Captain Alfred A. Schultz, formerly of the East Hazel Crest Volunteer Fire Department who died on October 13, 1979, for benefits under the provisions of the Law Enforcement Officers and Firemen Compensation Act (hereinafter referred to as the Act). Ill. Rev. Stat. 1977, ch. 48, par. 281 et seq.

The issue presented for determination by the Court is whether decedent was killed in the line of duty as contemplated by the Act and more specifically whether his life was lost as a result of injury received in the active performance of duties as a fireman and whether the injury arose from violence or other accidental causes.

On the date of his death, Captain Schultz was a fireman with the East Hazel Crest Fire Department. He was a captain whose duties were to take charge in the absence of a chief or assistant chief. Captain William N. Vallow testified that the decedent began duty on October 12,1979, at 1:15 p.m. At approximately 9:00 p.m. Captain Vallow received a call for mutual aid by the Harvey Fire Department inasmuch as the Harvey Fire Department had responded to a train wreck involving two fatalities and 48 injuries. The chief dispatched five men to Harvey to man the Harvey Fire Station. The balance of the East Hazel Crest crew stood by in East Hazel Crest. The decedent stayed with the balance of the men at the East Hazel Crest Fire Department. This procedure was by virtue of an agreement between the two departments.

At 9:40 p.m. Chief Vallow, Assistant Chief Prater, the decedent and others, including an emergency medical technician, proceeded to the scene of the wreck. There was no additional call for help by the Harvey Fire Department, but the group proceeded to the scene because they thought they might be of some assistance. They travelled to the scene in Chief Vallo w’s private automobile. Exiting their car, they walked to the scene of the wreck and were told that everything was well under control, that the injured people had been removed from the cars and most had been taken to hospitals. The Harvey Fire Department personnel were, at that time, trying to extricate one of the fatalities from the wreck but were having some difficulty. The group from East Hazel Crest decided to stay on the scene thinking they might be of assistance in the use of hydraulic lifting, porta powers or bridging materials.

After observing the scene for about one-half hour, the decedent and his associates proceeded to climb the embankment where the wreck was located. The embankment they climbed was approximately 18 feet high, 35 feet long and angled upward about 60 degrees. A rope had been strung from the bottom to the top of the embankment to assist persons in climbing it.

Chief Vallow, a firefighter for 30 years, testified that he had occasions in the past where he had stayed at the scene of a disaster after being told that no further assistance was needed and that this was good practice because, being officers of command responsibilities, they might have been of assistance in extricating persons from the wreckage.

After arriving at the top of the embankment, the decedent stated that he had a hard time breathing and was seen gasping for air. The color of his face was white. This was the first indication that evening that the decedent was feeling ill.

After resting at the top of the embankment, the decedent and his associates proceeded down to their automobile and drove to the East Hazel Crest Fire Department Station where an ambulance took the decedent to St. James Hospital. The decedent was pronounced dead on arrival at the hospital at 12:55 a.m. on October 13, 1979. The medical examiner’s certificate of death listed the immediate cause of death as congestive heart failure as a consequence of arteriosclerotic cardiovascular disease.

Section 2(e) of the Act provides a definition of “killed in the line of duty” as follows:

“(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 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 causes . . Ill. Rev. Stat. 1977, ch. 48, par. 282(e).

Inasmuch as the decedent died shortly after the incident, it is agreed that the time limitation is no bar to recovery in this case.

The questions then are:

1. Did the decedent lose his life in the active performance of duties as a fireman and;

2. Did his death result from injury which arose from violence or other accidental causes?

As to the first question, it is our opinion that the decedent was in the actual performance of his duties as a fireman. The duties of a fireman are not merely fighting fires. Fireman are called upon to perform many other life saving tasks. Extricating persons from the wreckage of major disasters is certainly among the responsibilities of firemen. Although the decedent was not specifically requested by the Harvey Fire Department to go to the scene, his presence was desirable and might have been useful and his initiative and that of his chief, Chief Vallow, was commendable. Chief Vallow felt that this was good practice. Certainly, under the circumstances, the decedent was acting in his capacity as a fireman rather than in his capacity as a private citizen. He was, therefore, in our opinion, in the active performance of his duties as a fireman. As we stated in In re Application of Woodworth (1981), 34 Ill. Ct. Cl. 298, 299:

“The Act is concerned with providing additional compensation to those certain members of the public who perform services on behalf of governmental agencies which benefit the public as a whole . . . having voluntarily given of his time, Woodworth was stricken with a fatal heart attack while responding to a call to aid a trapped motorist. Under these circumstances we find this claim is compensable under the Act.”

In the instant case, decedent voluntarily sought to aid a person trapped in train wreckage. Although the parties came to the scene in a private automobile, he was engaged in more than a private pastime.

As to the second question, it is our opinion that the decedent suffered from an accidental injury. In the cases previously decided by this Court which granted awards in cases of heart attack, no particular traumatic experience has been found to be necessary. Arduous activity is within the scope of the Act. See Hill v. State (1974), 30 Ill. Ct. Cl. 1073; O’Neil v. State (1973), 29 Ill. Ct. Cl. 529; In re Application of Woodworth (1981), 34 Ill. Ct. Cl. 298; In re Application of Parchert (1980), 33 Ill. Ct. Cl. 312.

In the instant case, decedent had not prior to climbing the embankment suffered any physical distress. He climbed an 18-foot embankment so steep that it required a rope to help people climb up and down. Decedent’s difficulty in breathing commenced at the top of the embankment after this arduous climb. It is clear that decedent’s heart attack was proximately related to the climb up the embankment.

It is therefore ordered that the statutory award of $20,000.00 be, and hereby is, awarded to the applicant, Bernice Schultz.


text:
    (No. 81-CC-2817

      In re Application of Louise E. Jobe.

      Opinion filed February 11, 1982.

    Jegen & Carlson (Kurt A. Carlson, of counsel), for Claimant.

      Tyrone C. Fahner, Attorney General (James M. Hofert, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This is a claim brought by Claimant, Louise E. Jobe, widow of police officer James E. Jobe, for benefits under the provisions of the Law Enforcement Officers and Firemen Compensation Act, hereinafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 48, par. 281 et seq.

The case was assigned to a commissioner, but because all relevant facts were sufficiently set forth in the record, the parties stipulated that the case be submitted to the Court solely on the material in the file, including the parties’ memoranda of law, without a hearing.

Officer Jobe died December 26, 1980, while a member of the police department of the city of Des Plaines, Illinois, as a result of injuries received on December 13, 1980.

On the latter date, at approximately 7:42 p.m., he was proceeding westbound on Algonquin Road, Cook County, Illinois, in a squad car, as back up man, reporting to a domestic disturbance call.

At the Chicago arid Northwestern tracks he stopped for a southbound freight train. As the train cleared the crossing he drove his squad car around the still lowered gates and was struck by a northbound train that had been concealed by the southbound, train. According to witnesses ¿either the northbound train nor its headlights were visible prior to the accident.

An eyewitness described the occurrence as follows:

“We were driving West on Algonquin Road coming to the railroad crossing just West of Wolf Road. The gates had just gone down. There was a police car in front of us with his lights on but was delayed because of the train coming. He waited until the train going southbound had just passed and then proceeded to go around the gates just as a northbound train was coming along. He didn’t even have time to see the other train coming because he jumped around the gates right after the southbound passed: The northbound train hit him in the left front fender and dragged him along with it about halfway down to the next crossing.” (Statement of Denise Armstrong.)

The issue in this case is whether Claimant’s husband was killed in the line of duty as that phrase is defined in section 2(e) of the Act.

“(e) ‘killed in the line of duty’ means losing one’s life as a result of injuries 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. The term excludes death resulting from the willful misconduct or intoxication of the officer, civil defense worker, civil air patrol member, paramedic, or fireman. However, the burden of proof of such willful misconduct or intoxication of the officer . . .is on the Attorneu General.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 48, par. 282(e).

The department of police, city of Des Plaines, has promulgated rules for responding to calls. The applicable Police Department Rule provides in part as follows:

“380.78 Responding to Calls. Member of the Department shall respond without delay to all calls for police assistance from citizens or other members. Emergency calls shall take precedence; however, all calls shall be answered as soon as possible consistent with normal safety precautions and vehicle laws. . . .” (Emphasis added.)

Section 11 — 1201 of the Illinois Motor Vehicle Code (Ill. Rev. Stat. 1977, ch. 95½, par. 11 — 1201) provides that no person shall drive any vehicle through, around, or under any crossing gate or barrier at a railroad crossing while such gate or barrier is closed or is being opened or closed.

Section 11 — 205 of the Illinois Motor Vehicle Code (Ill. Rev. Stat. 1977, ch. 95½, par. 11 — 205) which provides various exceptions for drivers of emergency vehicles does riot seem to give the driver of an emergency vehicle the right to drive around a lowered gate at a railroad crossing.

Clearly, Claimant’s husband was guilty of negligence. The Accident Review Committee of the Des Plaines Police Department found that Officer Jobe’s accident was “preventable.”

However, the question before this Court is not whether the accident was preventable, nor is it whether Officer Jobe was guilty of negligence, but whether Ms death resulted from wilful “misconduct” within the meaning of the term as used in that portion of the Act defining “killed in the line of duty.”

The burden of proving such wilful misconduct is on the Attorney General. Respondent pointed out that interpretation of this term is an issue of first impression in this Court and suggested that the standards of wilful and wanton misconduct as ordinarily applied in tort litigation, and in particular, the standards and definitions developed with reference to the Illinois Guest Statute (Ill. Rev. Stat. 1979, ch. 95½, par. 10 — 201) be applied in making our determination. Respondent’s memorandum explains the standard as follows:

“The requirement that the defendant be found to have been guilty of wilful misconduct is a prerequisite in several other statutory causes of action in this State. The Guest Statute, Ill. Rev. Stat. 1979, Ch. 95½, par. 10 — 201, provides that a guest shall not have a cause of action against the driver, unless the driver was guilty of wilful misconduct. The definition of wilful misconduct, as it relates to the Guest Statute, is set forth in Griffin v. Darda, 28 Ill.App.2d 693, 329 N.E.2d 245, (1975). In Griffin, supra, the court, at page 248, defined wilful misconduct, as follows:
‘Wilful and wanton misconduct is a conscious disregard for one’s own safety and that of others.’
The court continued, at page 248, by stating that the concepts of negligence and wilful misconduct are not synonymous. The court set forth the difference between these concepts, at page 248, as follows:
‘The degree of culpability is greater under a charge of wilful and wanton . . . The proof is distinguishable; less evidence is required to prove negligence.’
In Breslin v. Bates, 14 Ill.App.3d 941, 303 N.E.2d 807 (1973), the court, at page 813, stated that the determination of whether an act is wilful and wanton depends upon the circumstances in each case and constitutes a question of fact. The court, at page 813, defined wilful misconduct as follows:
‘To be wilful or wanton an act must either be intentional or it must be committed under circumstances exhibiting a reckless disregard for the safety of others, such as failure after knowledge of impending danger to exercise ordinary care to prevent injury, or a failure to discover the danger through recklessness or carelessness when it could have been discovered in the exercise of ordinary care.’ (Emphasis added)
The court, in the above case, at page 814, concluded as follows:
‘There was no evidence that the traffic conditions at the intersection were so hazardous or the circumstances preceding the accident so threatening that they transformed her alleged excessive speed into conduct exhibiting a reckless disregard for the safety of her passengers.’ ”

We decline to accept this standard. While it may be appropriate for governing the day-to-day affairs of the public at large, we do not think it is the correct standard to apply to law enforcement officers in the context of the Act. As the Breslin case, supra, pointed out, what is simple negligence, wilful and wanton negligence, or wilful misconduct depends on the circumstances of the case. The very nature of a law enforcement officer’s duties require that he take risks to which the ordinary public is not even exposed. We point out that the Act in part defines a law enforcement officer as (one) in a position “involving law enforcement and protection of the public interest at the risk of that person’s life.” To hold that a law enforcement officer was engaged in wilful misconduct when he exhibited a disregard for his own safety would be contrary to the purposes of the Act and disqualify many deserving officers. However, we decline to set forth a standard in this case to be used as precedent for others for we think that the determination should be made on a case-by-case basis which allows for taking into consideration all of the attendant circumstances of the incident.

In the case at bar Officer Jobe did not endanger anyone’s safety but his own. In taking the risk he did he may have been in violation of a provision of the Illinois Motor Vehicle Code but we think it is important to look at the factors surrounding his actions. He was responding as a backup officer to a domestic disturbance call. As both counsel for the State and the Applicant pointed out in their memoranda, this type of call is very dangerous and, according to the F.B.I. report, domestic disturbance calls were responsible for the highest percentage of police officer fatalities between 1970 and 1979. There was no indication whatsoever that Officer Jobe was intentionally trying to get himself hurt. He evidently thought that it was imperative that he answer the call immediately and disregarded his own safety to do so.

Officer Jobe may have been negligent and, with perfect hindsight, it can be said that he exhibited poor judgment. However, under the circumstances, we think, that he was not engaged in wilful misconduct as contemplated in the Act. We find that Officer Jobe was killed in the line of duty.

It is hereby ordered that Louise E. Jobe be, and hereby is awarded the sum of $20,000.00 (twenty thousand dollars and no cents).


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    (No. 82-CC-0017

      In re Application of Delores E. Mielke.

      Opinion filed May 5, 1982.

    Delores E. Mielke, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

Applicant seeks an award as the widow and statutory beneficiary of Kairon H. Mielke, certified paramedic, pursuant to the provisions of the Law Enforcement Officers and Firemen Compensation Act¿ hereinafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 48, par. 281 et seq.

The Court has reviewed Claimant’s application for. benefits, together with the written statement of decedent’s supervisor, and has also reviewed the police report of the River dale Police Department, the medical examiner’s certificate of death, the letter from the chief of police of the Riverdale Police Department and the report of the Attorney General. From its consideration of these documents the Court finds:

1. A claim was filed herein by Delores E. Mielke, widow of Kairon H. Mielke, certified paramedic, who died May 27, 1981, from injuries sustained while responding to an emergency call by the Riverdale Fire Department.

2. Delores E. Mielke, as widow, is the sole beneficiary and therefore would be entitled to any payment pursuant to section 3(a) of the Law Enforcement Officers and Firemen Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 283(a)), which provides that the surviving spouse is entitled to the entire award where there is no designation of beneficiary on file.

3. The statement of John W. Daley, decedent’s supervisor, and the Riverdale Police report state that on May 26, 1981, decedent was acting in his capacity as certified paramedic and had responded to a Riverdale Fire Department emergency call. Decedent was attempting to reach an injured person at the bottom of a grain silo in an abandoned warehouse in order to administer emergency medical aid. The rope lowering decedent into the silo broke and he fell, sustaining injuries which caused his death on May 27, 1981.

4. The Riverdale Police and Fire Departments do not employ certified paramedics but have an agreement with Daley’s Ambulance Service that Daley’s will employ certified paramedics and will respond to emergency calls from the Riverdale Police and Fire Departments. Kairon H. Mielke was so employed by Daley’s Ambulance Service and was responding to such an emergency call from the Riverdale Fire Department at the time of the accident which led to his death. Section 2(i) of the Act sets forth the definition of the term “paramedic” as it is used in the Act. It provides as follows:

“(i) ‘paramedic means Mobil Intensive Care Personnel certified by the ■ Illinois Department of Public Health as qualified to render the services enumerated in Section 1.4 of ‘An Act requiring hospitals to render hospital emergency service in case of injury or acute medical conditions and to implement emergency hospital, medical and surgical services on a community or areawide basis’, approved August 28,1963, as amended, who is a member of an organized body under the jurisdiction of a city, village, incorporated town or county, that provides emergency medical treatment to persons of a defined geographical area.” (Emphasis added.)

The issue in this case is whether Applicant’s decedent qualifies under the language of the Act emphasized above. There is no question that he met the other qualifications of the definition. In the case at bar, Applicant’s decedent was employed by a private ambulance service. However, by agreement between the decedent’s employer and the village of Riverdale, said ambulance service was required to provide paramedical services to the village in accordance with section 6 of the PreHospital Emergency Medical Services Act. (Ill. Rev. Stat. 1979, ch. 111½, par. 4106.) The letter from the chief of police of the Riverdale Police Department stated that in all cases of medical emergencies, said ambulance service is dispatched along with the village’s other services and that departmental policy is to notify the ambulance service immediately after the police are notified. We find that this arrangement does qualify under the Act. The Attorney General in its report filed in this case also is of the opinion that the facts of the case at bar are in compliance with the Act.

5. The medical examiner’s certificate of death lists immediate cause of death as multiple injuries due to a fall from height.

6. The facts as herein reported are in compliance with the requirements of the Law Enforcement Officers and Firemen Compensation Act. (Ill. Rev. Stat. 1979, ch. 48, par. 281 et seq.) Claimant, as the widow of Kairon H. Mielke, certified paramedic, is entitled to an award of $20,000.00 as is provided by law.

By reason of the foregoing, it is hereby ordered that an award of $20,000.00 be, and is hereby made to Delores E. Mielke, the widow and statutory beneficiary of Kairon H. Mielke, certified paramedic, as is required by the provisions of the Law Enforcement Officers and Firemen Compensation Act. Ill. Rev. Stat. 1979, ch. 48, par. 281 et seq.


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    (No. 82-CC-0294
    Loretta Riordan, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 17, 1981.

    Loretta Riordan, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

Claimant seeks an award as the widow and statutory beneficiary of first deputy superintendent James J. Riordan, pursuant to the provisions of the Law Enforcement Officers and Firemen Compensation Act. Ill. Rev. Stat. 1979, ch. 48, par. 281 et seq.

The Court has reviewed Claimant’s application for benefits together with the written statement of decedent’s supervisor, and has also reviewed the police reports of the Chicago Police Department, the medical examiner’s certificate of death and the report of the Attorney General. From its consideration of these documents the Court finds:

1. A claim was filed herein by Loretta Riordan, widow of James J. Riordan, first deputy superintendent of the Chicago Police Department, who died on June 6, 1981, from gunshot wounds;

2. Loretta Riordan, as widow, is entitled to payment pursuant to section 3 of the Law Enforcement Officers and Firemen Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 283) which provides that the surviving spouse is entitled to the entire award where there is no designation of beneficiary on file;

3. The police reports state that on June 6, 1981, decedent was escorting a man who had caused a disturbance from a bar. The man had a gun in his hand and while the decedent was escorting him from the bar, the decedent was shot. He died from his wounds a short time later;

4. The medical examiner’s certificate of death lists the cause of death as bullet wound — neck (internal jugular vein and transection cervical cord);

5. There is nothing in the circumstances to suggest that decedent’s death resulted from the wilful misconduct or intoxication of the decedent;

6. The facts as herein reported are in compliance with the requirements of the Law Enforcement Officers and Firemen Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 281 et seq.). Claimant, as widow of James J. Riordan, is entitled to an award of $20,000.00 as is provided by law.

By reason of the foregoing, it is hereby ordered that an award of $20,000.00 be, and is hereby made to Loretta Riordan, the widow and statutory beneficiary of James J. Riordan, as is required by the provisions of the Law Enforcement Officers and Firemen Compensation Act. Ill. Rev. Stat. 1979, ch. 48, par. 281 et seq.


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    (No. 82-CC-0623

      In re Application of Jean C. Rawson.

      Opinion filed March 1, 1982.

    Stephen A. Frew, for Claimant.
    Tyrone C. Fahner, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This is an application for benefits filed pursuant to the Law Enforcement Officers and Firemen Compensation Act, hereinafter referred to as the Act (Ill. Rev. Stat. 1979, ch. 48, par. 281 et seq.), by Jean C. Rawson, widow of deputy fire chief Dean L. Rawson, who was employed in that capacity by the city of Rockford, Illinois, and who died on July 26, 1981.

The decedent is survived by his wife, the Applicant herein, and pursuant to section 3 of the Act she would be entitled to the entire sum of any benefits paid under the Act. Ill. Rev. Stat. 1979, ch. 48, par. 283.

Based upon the report filed by the office of the Attorney General and the rest of the record in this matter we find the circumstances surrounding the death to have been as follows. On October 5, 1981, decedent was on call for the Rockford Fire Department as the ranking officer in Rockford at the time. A disturbance arose outside his home. Because he had his fire department car in his driveway he went outside to lock the doors. Shortly thereafter he became involved in the disturbance, was assaulted, and died 12 hours later. The cause of death was brain herniation due to brain contusion and subdural hematoma due to an accelerated fall on the back of the head. Contained in the written witness reports which were filed by the Applicant and the Attorney General are certain statements to the effect that the decedent became involved in the melee of his own volition and may have contributed in some manner to his death. However, the Attorney General’s investigation report found that there was nothing in the circumstances to indicate decedent’s death was caused by his wilful misconduct and we note that the statements otherwise were made by persons involved in the disturbance which brought decedent out of his home. We find no wilful misconduct.

The Attorney General’s report concludes that it was unable to determine whether deputy chief Rawson’s death meets the requisite of being “killed in the line of duty” as defined in the Act. However, based on the entire record, we find that he was so killed in the line of duty. He was the ranking officer in the city at the time. He was on call at the time. He had a fire department vehicle in his driveway which would have had to have been used had he been called in on an emergency. After becoming aware of a disturbance outside and near his vehicle he obviously felt the need to secure it. In the course of his doing so he was killed.

Jean C. Rawson is hereby awarded the sum of $20,000.00 (twenty thousand dollars and no cents).


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    (No. 82-CC-2054

      In re Application of Kay F. Clay.

      Opinion filed April 5, 1982.

    Kay F. Clay, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Andrew R. Jarett, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This claim arises out of the death of Edgar A. Clay, Jr., a member of the Chicago Police Department. The decedent’s widow seeks compensation pursuant to the provisions of the Law Enforcement Officers, Civil Defense Members, Civil Air Patrol Members, Paramedics and Firemen Compensation Act (the Act). (Ill. Rev. Stat. 1979, ch. 48, par. 281 et seq.) The Claimant is the widow of the decedent as indicated by the verified application for benefits and a copy of the medical examiner’s certificate of death attached to said application.

On January 7, 1982, the decedent was on duty at Hyde Park High School, 6220 Stoney Island Avenue, Chicago. Sometime in the afternoon Officer Clay observed a suspect wanted for armed robbery. Officer Clay attempted to effectuate an arrest, but the suspect resisted, causing the officer to fall to the floor, where Officer Clay sustained a broken knee cap. During this occurrence several other school personnel arrived and held the suspect until help arrived.

Due to the knee injury sustained during the attempted arrest, Officer Clay underwent extensive knee surgery. Officer Clay was at home recuperating when a blood embolism developed that traveled to the heart, causing death. The medical examiner’s certificate of death, attached to the verified application for benefits, was signed by Dr. Tae Lyong An, on January 26, 1982, and indicates that the cause of death was a massive bilateral pulmonary embolism in association with the recent leg injury.

The Act is concerned with providing additional compensation to those certain members of the public who perform services on behalf of governmental agencies which benefit the public as a whole. Here Officer Clay was killed in the furtherance of his official duties, helping to protect the public. Under these circumstances, we find this claim is compensable under the Act.

It is hereby ordered that the sum of $20,000 (twenty thousand dollars and no cents) be, and hereby is awarded to Kay F. Clay, widow of Edgar A. Clay, Jr., decedent.


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    (No. 76-CV-0325
    In reApplication of Billy, Derek and William Wright. Order filed

      March 16, 1982.
    De Frees& Fiske (Timothy J. Riordan, of counsel), for Claimants.
    Tyrone C.Fahner, Attorney General (Alan R. Boudreau, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of a criminal offenseon or about the 26th day of October 1974. Claim- ant seeks compensation pursuant to the applicable provi- 495 Claimant seeks compensation pursuant to the applicable provisions of the Crime Victims Compensation Act, hereinafter referred to as the Act. Ill. Rev. Stat., ch. 70, par. 71 et seq.

The claim was filed on or about the 1st day of October 1975. Thereafter, following our investigatory report submitted by the Attorney General of the State of Illinois and the other documentary evidence, the Court directed that a full hearing be conducted to determine the facts.

The hearing commenced on July 2, 1980, and concluding on December 23, 1980, was conducted by Commissioner Leo J. Spivack at Chicago, Illinois. As a result of said hearing the following facts were established by a preponderance of the evidence:

(1) Claimant’s wife, Doris Wright, disappeared on October 26, 1974, and was found murdered on March 17, 1975.

(2) At the time of her death, decedent left surviving her estranged husband, Billy Wright, a minor son, William, and a son, Derek, who had just become eighteen. All of the parties were residing in the same household; the sons were both full time students.

(3) Decedent was employed at the time of her disappearance and had been so employed for more than six months last past; Claimant Billy Wright was also employed; both incomes were pooled to support the household.

(4) It was stipulated that each of the Claimants was dependent upon the deceased, Doris Wright, for some measure of support and that in the event of an award the maximum statutory amount would be properly distributable.

(5) Prior to the disappearance of the Claimant, Billy Wright, he and decedent, Doris Wright, had separated. Decedent Doris Wright had instituted divorce proceedings charging physical cruelty, and there was an injunction issued against Billy Wright. It is conceded, however, that just before the disappearance, the parties had reconciled and were living together.

(6) The testimony of the witnesses is in substantial conflict with reference to Claimant Billy Wright’s cooperation with authorities following the disappearance; he alleges that he reported the disappearance, provided photographs and address book, etc. This is disputed by Officer Stube who claims the disappearance was reported by a cousin, that the photo and address book were supplied by the victim’s mother, etc.

(7) There is, however, no dispute as to Billy Wright’s actions following discovery of the body. He refused to answer any questions put to him by police and three months later refused to testify at the coroner’s inquest.

(8) The Claimants William and Derek Wright were fully cooperative with the authorities at all times.

Whether or not Claimant Billy Wright sufficiently cooperated with the authorities following his wife’s disappearance becomes moot in view of his total lack of cooperation following the discovery of her -body, The Crime Victims Act does not excuse a failure to cooperate on the grounds that the Claimant might be or considers himself to be suspect and thus refuses. to cooperate on fifth amendment grounds. In. unambiguous terms it requires full cooperation of anyone who seeks.its benefit.

No case is known to us where the failure by one claimant to cooperate is imputable to another cooperative claimant, nor do we think that the Act would impliedly demand such a result. There is no question about the entitlement of Claimants William and Derek Wright absent the cooperation issue. Both their dependency and the dollar amount thereof were not only testified to but also stipulated by the Attorney General.

Based upon the foregoing the claim of Billy Wright, husband of the deceased victim, Doris Wright, is denied.

It is further ordered that the sum of $10,000.00 (ten thousand dollars) be and is hereby awarded to William and Derek Wright, children of the deceased victim, Doris Wright, to be disbursed as follows:

William Wright $5,000.00

Derek Wright $5,000.00

$10,000.00