author: Epstein, J. Epstein, J.

text:
    (No. 94-CC-3084
    John T. O’Connor, Claimant, v. Joseph Smith and The Board of Trustees of the University of Illinois, Respondents.

      Opinion filed March 8, 1996.

      Supplemental opinion filed November 6, 1996.

    Erwin, Martinkus, Cole & Ansel (John M. Wilkie, of counsel), for Claimant.
    Flynn, Palmer & Tague, for Respondents.
   OPINION

Epstein, J.

This is a libel action by one State official against another. This intergovernmental libel claim is before us on the Respondents’ misdesignated section 2 — 615 motion to dismiss which asserts, alternatively, the defenses of absolute privilege and qualified privilege of public officials for intergovernmental communications within the scope of their official duties. Without objection by, nor prejudice to, the Claimant, Respondents’ motion is treated as a section 2 — 619 motion. For this purpose the well pleaded facts alleged in the complaint must be taken as true.

Also before us is the question of this Court’s subject matter jurisdiction over the count I claim against Respondent Smith, individually, who is there sued personally and not in his official capacity. This issue was raised by the Court sua sponte and was supplementarily briefed.

The Allegations of the Complaint

Claimant O’Connor is the chief of the Illinois State Water Survey (Water Survey), which is situated on the University of Illinois’ Urbana campus, but is actually a division of the Illinois Department of .Energy and Natural Resources (DENR) and not part of the University, a fact not universally known on campus. Claimant brought this libel claim against an associate chancellor of the University individually (count I) and, under respondeat superior, against the University (count II). Respondent Joseph H. Smith (Smith) is the university’s Associate Chancellor and Director of Affirmative Action and is the alleged tortfeasor.

The complaint alleges that Claimant was libeled by a letter that Smith wrote and published to two other officials: (1) DENR Director John S. Moore, Claimant’s superior in the State government hierarchy, to whom Smith’s letter was addressed, and (2) Chancellor Morton Weir; Smith’s superior in the university hierarchy, to whom the letter was copied.

The subject of Smith’s letter was a series of complaints against Chief O’Connor that were purportedly made by (or on behalf of) Water Survey employees and that alleged various discriminatory acts by O’Connor. The complaints had been mistakenly submitted to Associate Chancellor Smith, although he and the University have no jurisdiction to investigate or act upon employment matters at the Water Survey. The letter’s ostensive purpose was to forward the discrimination complaints to the DENR director, who has jurisdiction over O’Connor, and to urge action. Smith’s letter urged “prompt action to resolve this troublesome situation.”

The complaint alleges malice by Associate Chancellor Smith and, more or less, that his letter endorsed the substance of the discrimination complaints. The complaint specifically alleges the following excerpts from Smith’s letter to be “false, defamatoiy and libelous” (par. 3) and that he published them with reckless disregard as to whether they were true or false” (par. 5):

“Suffice it to say, that there is a pattern of behavior which on its face is discriminatory against staff members of foreign background and, in this instance, are also people of color.
6 0 0
Harassment and intimidation are the means by which staff members have had their well-being threatened and compromised by Chief O’Connor, according to those directly affected as well as those associated with him.”

O’Connor alleges that Smith’s letter resulted in his placement on a lengthy administrative leave and loss of various employment benefits.

The Parties’ Contentions

Respondents assert absolute immunity, as a matter of common law, based on Respondent Smith’s status as a public official, for communications made by him within the scope of his official duties, relying on Blair v. Walker (1976), 64 Ill. 2d 1, 349 N.E.2d 385 and its progeny; Respondents claim that the letter was a proper intergovernmental communication reasonably related to Smiths duties. Respondents alternatively argue that if absolute privilege does not apply, then qualified (conditional) privilege applies here, based on the elements set forth in Edwards by Phillips v. University of Chicago Hospitals and Clinics (1985), 137 Ill. App. 3d 485, 484 N.E.2d 1100, and requires dismissal of O’Connors libel action.

The Claimant disputes the applicability of absolute immunity to Associate Chancellor Smith, contending primarily that he is too far down the chain of command to be covered by the Illinois doctrine of absolute immunity for executive officials which, Claimant urges, is limited to chief executive officers and their equivalents, relying also on Blair v. Walker; supra, and later opinions. Claimant alternatively argues that if absolute immunity applies, Smith’s publications of. his letter were outside his official duties and thus unprotected by the privilege. Claimant also disputes the applicability of qualified immunity, and finally argues that his allegations of malice are sufficient to support his libel claim even if qualified immunity is held applicable.

On the jurisdictional issue, both the Claimant and the Respondents rely on Healy v. Vaupel (1990), 133 Ill. 2d 295, 549 N.E.2d 1240, as the latest and most authoritative pronouncement of our Supreme Court on this Court’s jurisdiction over claims against State employees and officers individually. Both sides contend that Healy supports their position on count I as to Mr. Smith individually.

I.

Jurisdiction over the Claim against the Individual Respondent

Count I seeks a money judgment against an individual Respondent (Smith), individually, and is predicated on the claim that Smith, a State (university) employee and official, was acting outside of his official government duties when he committed a common law libel. Count I is thus a garden variety tort claim against an individual who just happens also to be a State university official. Because sovereign immunity does not cover that kind of tortious conduct by State employees, there is no basis for jurisdiction in this Court over this count I claim. Healy v. Vaupel (1990), 133 Ill. 2d 295, 549 N.E.2d 1240; Currie v. Lao (1992), 148 Ill. 2d 151, 592 N.E.2d 977.

Healy v. Vaupel, supra, lends no support to Claimant. Healy provides no basis for jurisdiction in this Court over a claim against an individual State employee for acts outside of his or her official duties. To the contrary, Healy holds that a claim against an individual State employee who is alleged to have acted outside his authority or illegally is not cloaked with sovereign immunity and is justiciable in the circuit court but, concomitantly, not in this Court.

A second analysis in Healy turns on the source of the legal duty on which the tort claim against the individual State employee is predicated. The Supreme Court held that where the duty sued upon itself arises from the State employment, then the individual employee is only a nominal party and sovereign immunity applies, and the claim must be brought in the Court of Claims as a claim against the State. Healy, 133 Ill. 2d at 313, 549 N.E.2d 1240.

Where the individual State employee is named as a “nominal” defendant in order to obtain an indirect judgment against the State, or where irrespective of the form of pleading or style of action the “real claim is against the State of Illinois itself and when the State * # * is the party vitally interested,” then the action lies within this Courts exclusive jurisdiction. (Healy v. Vaupel, 133 Ill. 2d 295, 549 N.E.2d 1240, 1247, quoting Sass v. Kramer (1978), 72 Ill. 2d 485, 41, 381 N.E.2d 975, 977.) Healy approved the formulation articulated in Robb v. Sutton (1986), 147 Ill. App. 3d 710, 716, 498 N.E.2d 267, which held that claims against individual State employees, agents or officers lie in the exclusive jurisdiction of the Court of Claims when (and only when):

““ ° * there are (1) no allegations that an agent or employee of the State acted beyond the scope of his authority through wrongful acts; (2) the duty alleged to have been breached was not owed to the public generally independent of the fact of State employment; and (3) where the complained-of actions involved matters ordinarily within that employee’s normal and official functions of the State ° °

In those circumstances, “the cause of action is only nominally against the employee” (ibid.) and the State is the real defendant which must be sued in this court.

Under Healy, there is no room to argue that this claim against Mr. Smith individually lies in this court. The count I action against Smith fails each of the three wings of the Robb v. Sutton test approved in Healy v. Vaupel. That would end the analysis, except that Healy, despite the parties’ representations, is not the last word on this subject from our Supreme Court.

Two years after Healy v. Vaupel, supra our Supreme Court decided Currie v. Lao (1992), 148 Ill. 2d 151, 592 N.E.2d 977, in which it revisited this jurisdictional issue and adopted Healy's second analysis — which was also the second wing of the Robb v. Sutton test approved in Healy— as the primary standard for applying the sovereign immunity doctrine to tort claims against individual State employees. This analysis focuses on the source of the tort duty.

Under Curry, a tort claim against a State employee that is founded upon an independent tort duty — one that applies to the individual independent of his or her status as a State employee or officer — is unprotected by sovereign immunity and the employee may thus be sued individually in the circuit court. Those sorts of independent tort claims are actionable against the individual employee (whether or not acting within the scope of his official duties); but those claims are outside the exclusive jurisdiction of this Court. The Supreme Court’s discussion in Currie v. Lao bears repeating here:

“A State employee is not immunized by sovereign immunity for his own acts of negligence merely because he was acting within the scope of his employment. (Gocheff, 69 Ill. App. 3d at 183, 25 Ill. Dec. 477, 386 N.E.2d 1141.) the issue of when a State employee’s on-the-job negligence is immunized has been the focus of numerous divergent, and sometimes contradictory, approaches in the case law. After careful study of these approaches, we conclude that the proper inquiry is to analyze the source of the duty the employee is charged with breaching in committing the allegedly negligent act. Where the charged act of negligence arose out of the State employee’s breach of a duty that is imposed on him solely by virtue of his State employment, sovereign immunity will bar maintenance of the action in circuit court. (Healy, 133 Ill. 2d at 313, 140 Ill. Dec. 368, 549 N.E.2d 1240; American Family Insurance Co. v. Seeber (1991), 215 Ill. App. 3d 314, 318, 158 Ill. Dec. 829, 574 N.E.2d 1222.) Conversely, where the employee is charged with breaching a duty imposed on him independently of his State employment, sovereign immunity will not attach and a negligence claim may be maintained against him in circuit court. (See Seeber, 215 Ill. App. 3d at 318, 158 Ill. Dec. 829, 574 N.E.2d 1222; Bartholomew v. Crockett (1985), 141 Ill. App. 3d 456, 462, 86 Ill. Dec. 656, 475 N.E.2d 1035.) In other words, where an employee of the State, although acting within the scope of his employment, is charged with breaching a duty that arose independently of his State employment, a suit against him will not be shielded by sovereign immunity.
This distinction best preserves the spirit of the sovereign immunity doctrine. The legislative grant of sovereign immunity shields the State from being haled into circuit court; it is not a blanket grant of immunity for all State employees. The rationale behind extending the immunity to State employees in certain situations is that a suit against that employee could operate to control the actions of the State, thereby allowing the State’s immunity to be circumvented. (See Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 36, 101 N.E.2d 71.) Limiting immunity for a State employee to situations where he breaches a duty imposed on him solely by virtue of his official position furthers this rationale, for control over the actions and policies of the State could be achieved only by controlling the employee's performance of his “official” actions. A State employee who breaches a duty he owes regardless of his State employment is no more entitled to immunity than is a private individual who breaches that same duty; the mere fact of his State employment should not endow him with heightened protection. See, also, Postich v. Henrichs, 267 Ill. App. 3d 236, 641 N.E.2d 975 (2d Dist. 1994).”

As applied to this case, Cúrry compels the same result reached under Healy (because the Curry test was one part of the Healy analysis that was applied above). In garden variety tort cases like this count I libel action, where a judgment is sought against a Respondent individually who just happens to be a State employee or State officer and who is sued on a tort duty that applies to citizens generally — here the duty not to libel another — and that does not arise peculiarly from his official status or duties, then that individual may be independently culpable and may be sued individually in the circuit court but not in this Court in that capacity.

Under Healy and under Curry, this libel claim against Mr. Smith individually is or was maintainable in the circuit court and is not maintainable in this Court which lacks subject matter jurisdiction over it. Accordingly, count I, against Joseph H. Smith, individually, must be and is dismissed for want of jurisdiction. In light of this jurisdictional holding, we need not and do not address the other disputed issues relating to count I.

II.

The Privilege Defenses

The threshold issue presented on count II is the ap-. plicability to Associate Chancellor Smith of either absolute or qualified immunity for his intergovernmental communication to Director Moore and to Chancellor Weir. The dis-positive issue is the applicability of absolute privilege, since that common law privilege, as its name suggests, is absolute and thus provides immunity from suit as well as total immunity from liability in “defamation and kindred torts” (Barr v. Mateo (1959), 360 U.S. 569, 79 S. Ct. 1335, 3 L.Ed.2d 1434). If this privilege applies to this respondent, then this case is over, as this privilege is not pierced by the malice allegation and count II concedes that Smith’s letter was written and sent within the scope of his duties.

In the law of executive governmental privilege, absolute privilege has been the dominant, if not exclusive, doctrine invoked by our courts. Qualified or conditional privilege has rarely been applied to government officials or employees, and it is interesting to note that respondents’ alternative argument is unsupported by any applications of qualified privilege to government officials or public employees.

In Illinois, the analysis commences with Blair v. Walker (1976), 64 Ill. 2d 1, 349 N.E.2d 385, which is the leading and only decision by our Supreme Court on this issue. In Blair, our Court held as a matter of common law that the Governor has an absolute privilege for his “official acts” against defamation-type torts. Blair did not, however, decide what lesser public officials than the Governor, if any, also enjoy this absolute privilege.

Blair relied heavily on the U.S. Supreme Court’s decisions in Barr v. Mateo, supra (which involved an acting federal agency Director) and Spaulding v. Vilas (1896), 161 U.S. 483, 16 S. Ct. 631, 40 L. Ed. 780 (Postmaster General); Blair recognized and discussed the debate in the Barr opinions as to whether the privilege should extend to officials below cabinet rank or its equivalent. (The Barr majority held yes.) Blair also relied on several Illinois appellate decisions that had recognized the privilege for various executive officials: McLaughlin v. Tilendis (1969), 115 Ill. App. 2d 148, 253 N.E.2d 85 (superintendent of schools); Larson v. Doner (1961), 32 Ill. App. 2d 471, 178 N.E.2d 399 (mayor and city commissioners); and Haskell v. Perkins (1909), 165 Ill. App. 144 (school board architect).

While the Blair v. Walker opinion’s reliance on McLaughlin, Larson and Haskell may arguably have been somewhat misplaced, neither those decisions nor Blair itself, provide any support for this Claimant’s argument that the privilege is limited to chief executive officers. On the other hand, none of those decisions provide any direct support for respondents’ argument that the privilege applies to all'executive branch officials. The Barr v. Mateo decision rejected the limitation of the absolute executive privilege to cabinet rank officials (360 U.S. at 572), but it is not at all clear that this aspect of Barr was adopted by our Supreme Court.

However, our Supreme Court in Blair clearly adopted the rationale for the privilege articulated in Barr (349 N.E.2d at 388), which remains the guiding light for application of this policy-based common law privilege:

“The reasons for the recognition of the privilege have often been stated. It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to government service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.” 360 U.S. 564, 571, 79 S. Ct. 1335, 1339, 3 L.Ed.2d 1434, 1441.

This principal, however, provides little guidance on how far down the chain of governmental command an absolute privilege is justified.

In Barr v. Mateo, Mr. Justice Black’s concurring opinion suggested hmiting the privilege to policy-making officers, on the theory of derivative immunity from the Chief Executive. (360 U.S. at 582.) Justice Black, focusing on public statements as distinguished from purely internal governmental communications, expressed great concern for the potential abuse of executive privilege by government officials, particularly abuse aimed at critics of government.-He advocated giving a qualified privilege to lower-ranking officials (360 U.S. at 584):

“Giving officials below cabinet or equivalent rank qualified privilege for statements to the public would in no way hamper the internal operation of the executive department of government, nor would it unduly subordinate the interest of the individual in obtaining redress for he public defamation uttered against him.”

Neither view of Justice Black has been adopted by any court in Illinois as nearly as we can ascertain, although it is far from clear that the issue is foreclosed. .

In Colaizzi v. Walker (1976), 542 F.2d 969, which was decided shortly after Blair v. Walker was decided by the Illinois Supreme Court, the Seventh Circuit reviewed the dismissal of libel claims against the Illinois Governor (Dan Walker), the Director of [the Governor’s] Office of Special Investigations (Donald Page Moore), and an employee of the O.S.I. (Lauri Staples) arising out of internal communications and a press release and a news conference. The Seventh Circuit, interpreting and applying Illinois law as reflected in Blair, held that intergovernmental communications between these defendants were absolutely privileged. That disposed of the claim against Staples. The dismissal of the claims against the Governor was also affirmed, on the basis that his absolute immunity covered both the internal communications and his press statement and press conference. However, the claim against Moore for his (public) news conference statements was held to have exceeded inter-official communications, which were immune. Because those public statements may have exceeded his official duties so as to be unshielded by the privilege, the claims against Moore were reinstated but remanded for further fact-finding. See 542 F.2d at 969.

. Claimant relies heavily but mistakenly on Colaizzi to support his argument that Illinois law restricts executive absolute immunity to the highest ranking officers of the State. Colaizzi did nothing of the sort. Contrary to claimants argument, the Colaizzi court did indeed extend the absolute immunity to the employee Staples for her intergovernmental communications.

But Colaizzi, like the seminal Barr v. 'Mateo decision, points up a distinction that is often glossed over. That distinction — between intergovernmental communications and public statements — arises under the second issue in the absolute privilege cases: the issue of whether the official acted within the scope of his or her duties, and thus whether the particular statement is covered by the absolute privilege. (This issue is not presented here on the pending motion to dismiss.) However, this issue is not a matter of the applicability of the privilege to the official, as the Claimant seems to argue to us; this is solely a question of the privileges applicability to the particular act of the official. As the Supreme Court observed in Barr:

"To be sure, the occasions upon which the acts of the head of an executive department will be protected by the privilege are doubtless far broader than in the case of an officer with less sweeping functions. But that is because the higher the post, the broader the range of responsibilities and duties, and the wider the scope of discretion, it entails. It is not the title of his office but the duties with which the particular officer sought to be made to respond in damages is entrusted — the relation of the act complained of to ‘matters committed by law to his control or supervision,' Spaulding v. Vilas, supra [citation omitted] — which must provide the guide in delineating the scope of the rule which clothes the official acts of the executive officer with immunity from civil defamation suits.”

This oft-quoted and oft-misapprehended aspect of Barr v. Mateo is little more than a statement that the privilege is no broader than the official’s official duties, and that in the ordinary course it is likely that the higher the official the broader his or her duties and privilege, and vice-versa. Although this simple principle has rarely found application in Illinois (Colaizzi is one of the few examples), it is part of Barr v. Mateo that seemingly applies under Blair v. Walker, but in no way mitigates the threshold applicability of the privilege to lower ranking executive officials.

In the years since Blair v. Walker, supra, was decided in 1976, there have been critical voices in the Illinois judiciary addressing the wisdom of automatic application or extension of the executive immunity doctrine, and even of the Blair decision. See, e.g., Williams III v. Fischer (1991), 221 Ill. App. 3d 117, 581 N.E.2d 744, 745-746, concurring opinion of Justice Chapman:

“* * * I am concerned that the majority’s opinion is another ° * * which could be construed to mean that a public official can never be hable for statements made in his official capacity; second, I think that the broad holding of Blair warrants reexamination.
<f <t «
* * * critics of government officials cannot maliciously he about those they oppose. Therefore, if a challenger in an election defames his opponent, the challenger could be subject to liability. Under the doctrine of absolute immunity the same is not as true of the incumbent. A person holding an office is free to malign the challenger * * * and if he can * ° * maintain that his statements are necessary because of his official capacity, he can wrap himself in a cloak of absolute immunity
O O, #
I would submit that the [Barr v. Mateo] majority’s concern about “vindictive or ill founded damages suits” may no longer be the compelling basis it was in the time of Barr.
Finally, die cases * * * express a familiar concern that, absent the claim of absolute immunity, public officials would be so inundated with claims they would fail to make the pronouncements required by the duties of their offices. * * ° Sound empirical support for such claims is as rare as the threats are frequent.”

Most of the post-Blair decisions in Illinois have simply assumed, without analysis, that executive absolute privilege applies across the board under Blair v. Walker. There are simply no decisions to be found that reject immunity on executive rank grounds. On the other hand, the reporters are replete with Illinois decisions extending — or simply applying — the immunity doctrine to executive officers of less than C.E.O. rank and less than cabinet rank, starting of course with Colaizzi v. Walker (1976), 542 F. 2d 969 (Governor, Director, investigator), on which the Claimant here erroneously relies.

Other post-Blair decisions applying absolute privilege to executive officers include: Loniello v. Fitzgerald (1976), 42 Ill. App. 3d 900, 356 N.E.2d 842 (Mayor); Savarirayan v. English (1977), 45 Ill. App. 3d 105, 359 N.E.2d 236 (federal employees, physicians, applying federal law); Glass v. Jackson (1978), 65 Ill. App. 3d 732, 382 N.E.2d 709 (Director, Program Director, Office Chief of State agency); Springer v. Harwig (1981), 94 Ill. App. 3d 281, 418 N.E.2d 870 (village manager); Morton v. Hartigan (1986), 145 Ill. App. 3d 417, 495 N.E.2d 1159 (Attorney General, 1st Asst. Attorney General, Chief of Welfare Litigation Div’n.); Dolatowski v. Life Printing and Publishing Co., Inc. (1990), 197 Ill. App. 3d 23, 554 N.E.2d 692 (police superintendent); Williams III v. Fischer (1991), 221 Ill. App. 3d 117, 581 N.E.2d 744 (county coroner); Geick v. Kay (1992), 236 Ill. App. 3d 868, 603 N.E.2d 121 (village board President); Harris v. News-Sun (1995), 269 Ill. App. 3d 648, 646 N.E.2d 8 (police detective).

Rightly or wrongly, this body of law has "grown up despite the weakness of the underpinnings of Blair v. Walker and even of Barr v. Mateo Members of this Court share some of the concerns expressed in the dissenting and concurring opinions in Barr v. Mateo, supra, and even some of those expressed more recently by other courts. This Court particularly questions the need to insulate lower public employees with absolute immunity, when qualified immunity might suffice to meet the policy goals of the immunity doctrines, and when statements by the public or individual citizens receive only qualified privilege under the constitutional immunity afforded by New York Times v. Sullivan and its progeny. This imbalance between the exposure to defamation liability as between public employees and their taxpaying employers is surely less today than when Mr. Justice Black pointed out the disparity in Barr concurrence. Still, it is hard to perceive why one level of immunity suffices for one side of the government desk but not for the other. Those considerations, however, are for the Illinois Supreme Court and not for this Court. It is for us to apply the law as.it is.

Although there are arguable predicates for disputing the vitality of the body of law that has grown up around Blair v. Walker in Illinois, we are constrained to follow the overwhelming weight of the decision law that Illinois common law extends absolute privilege for intergovernmental communications to all executive branch officers, and thus to the Assistant Chancellor of the University of Illinois whose privilege is here in issue.

We need not and do not address the application of the privilege to public statements, as not public dissemination is alleged in count II of Claimants complaint. As our holding on the absolute privilege doctrine disposes of the count II claim, there is no reason for us to discuss the Respondents’ alternative defense of qualified privilege.

The count II claim is barred by privilege and must be dismissed. Count II is dismissed.

SUPPLEMENTAL OPINION ON PETITION FOR REHEARING

Epstein, J.

Claimant has petitioned for rehearing on his count II respondeat superior claim for libel against the university, which is based on a letter of one of its Assistant Chancellors. We dismissed this libel claim as barred by the absolute privilege “for inter-governmental communications [of] all executive branch officers” which Illinois provides under Blair v. Walker (1976), 64 Ill. 2d 1, 349 N.E.2d 385 and its progeny. (Slip. Op., 7-12.)

Claimant now says: (1) that the court over-broadly applied the privilege, which is said to be applicable only to a “narrow category of communications” made by public officials “under express authority of law,” Zurek v. Hasten, 553 F. Supp. 745, 748 (N.D. Ill. 1982), and (2) that the Assistant Chancellor’s letter was “clearly beyond the scope of his official duties and * * * is therefore not covered by absolute privilege.” (petition for rehearing, 2.)

This Court pointed out that the absolute privilege doctrine is no broader than the official’s official duties under Barr v. Mateo (1959), 360 U.S. 569, as followed in Illinois by Blair v. Walker, supra, and Colaizzi v. Walker, 542 F.2d 969 (7th Cir. 1976) (applying Illinois law). (Slip. Op., 9-10.) Nothing new is advanced by Claimant.

Moreover, as we also pointed out (id., at 9), no issue as to the scope of applicability of this executive privilege is presented here. That issue is still not presented by Claimants petition for rehearing, and cannot be, because count II alleges that the Assistant Chancellors acts were within the scope of his university responsibilities. Claimant cannot be heard to argue otherwise.

Claimants argument is legally suicidal as well as procedurally improper. The respondeat superior claim can never be resurrected by arguing that the alleged libel was outside the scope of its authors employment by the respondent: an employer is liable by respondeat superior only for the torts of its employees committed within the scope of their employment. Illinois adheres to this elementary, bedrock rule of law, Pyne v. Witmer (1989), 129 Ill. 2d 351.

Thus even if Claimant were to avoid the bar of absolute privilege by his reversal of allegations, he still shoots himself in the (other) foot with this contention, because his outside-the-scope allegation defeats his vicarious liability claim against the university as a matter of law. No reason is presented for us to reconsider our judgment dismissing Claimants count II claim against the University of Illinois.

Claimants petition for rehearing is denied.

       Respondents' motion raises only immunity defenses, which here arise on the face of the complaint rather than on extraneous facts injected by affidavit, but are nonetheless “affirmative matter .. . defeating the [tort] claim” within section 2 — 619(a)(9) of the Civil Practice Law (735 ILCS 5/2 — 619(a)(9)). Such defenses are appropriately raised by section 2 — 619 motion. (Meyer v. McKeown (1994), 266 Ill. App. 3d 324, 641 N.E.2d 1212.) Respondents’ motion does not attack the sufficiency of the underlying libel claim nor the libelous characterization of Smith’s letter, as a real section 2 — 615 motion might do. Accordingly, the Court will not address the merits of the libel action as alleged.

       In his briefs, the Claimant suggests without support that the Respondent Smith was responsible for the publication in various campus or town publications of the letter or of some of its contents. As nothing of this tenor is alleged in the complaint, such insinuations are improper and are disregarded by the Court.

       Although count I does not explicitly allege that Smith acted outside of his university authority, it is clear from the complaint (e.g., count I omits the allegation, contained in count II, that Smith acted “within the ° ° ° scope and course of his employment”) as well as from Claimant’s brief that his claim against Smith individually relies on this charge.

       The Court expresses no opinion as to whether any jurisdictional vitality remains in the first Healy v. Vaupel standard — whether the official's alleged wrongful conduct lies within or outside his official duties — as applied either to tort claims or to other claims.

       This Court need not and does not express any opinion on the effect, if any, of the allegation that Smith acted outside his university duties on the privilege doctrines that were asserted as defenses to the libel claim.

       In count II, the Claimant specifically alleges (as well he must in order to invoice respondeat superior against the university) that Mr. Smith's letter was within the scope of his university employment. Accordingly, for purposes of count II as well as for count I, the Court need not and does not decide whether or not Mr. Smith’s publication of the letter to the head of another governmental agency, or to his university superior, or both, falls within his official university duties. For count II, this is assumed.

       Qualified privilege, also sometimes called conditional privilege, provides substantial but incomplete immunity from liability, and is not an absolute bar to defamation actions. A qualified privilege does not immunize malicious defamations, nor libel per se, both of which appear to be alleged here.

        Haskel v. Perkins, supra, involved a school architect as. Defendant and arguably applied qualified rather than absolute privilege, as the opinion dwells on malice and libel per se, which are both irrelevant under absolute privilege. Larson v. Doner, supra, involved a resolution passed at a city council meeting, and plainly involved legislative rather than executive privilege. McLaughlin v. Tilendis followed Donner v. Francis (1930), 255 Ill. App. 409 (VA. hospital officials), which applied federal common law, and also relied on Larson, supra and Haskel, supra. Thus the Illinois precedent underlying Blair v. Walker was less than firm.

       Justice Black’s concurring analysis in Barr is instructive on the history of this immunity doctrine in its executive formulation. His historical review of privilege law reflects a surprisingly weak and brief precedential basis for the executive privilege, unlike the legislative and judicial privileges. His research traced the legislative privilege in England back to 1399 and judicial immunity back to 1608 (360 U.S. at 579-580). The executive privilege was traced back to its inapposite origins in military law, the earliest reported English decision being Sutton v. Johnstone, 1 T.R. 493 (1786) (Court of Exchequer) (captain of a naval warship), and the earliest civil executive application being as late as 1895, in the English case of Chatterton v. Secretary of State for India, 2 Q.B. 189. That was just one year before the seminal American decision in Spaulding v. Vilas (1896), 161 U.S. 483, 16 S. Ct. 631, 40 L. Ed. 780, which involved our Postmaster General, and in which the Supreme Court relied exclusively on judicial immunity precedents.


source: Caselaw Access Project

author: Frederick, J.

license: Public Domain

text:
    (No. 95-CC-2468

      In re Application of Darla Powell

      Opinion filed September 27, 1996.

    Hattery, Simpson & West (S. David Simpson, of counsel), for Claimant.

      Jim Ryan, Attorney General (Julie A. Smith,. Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This claim arises out of the death of Staff Sergeant Marvin W. Powell, Jr. The Claimant, Darla Powell, the decedent’s widow seeks compensation pursuant to the provisions of the Illinois National Guardsman’s Compensation-Act. 20 ILCS 1825/1 through 1825/5.

The decedent, Marvin W. Powell, Jr., was a Staff Sergeant of Battery A, 1st Battalion, 202nd Air Defense Artillery, Illinois Army National Guard, Galesburg, Illinois. At the time of his death, he was participating in his unit’s Inactive Duty Training Assembly of April 9,1994, as ordered. At or about the time of his death, Sgt. Powell was participating in a two-mile run that was part of the Army Physical Fitness Test (APFT). At the conclusion of the run, Sgt. Powell collapsed and was taken to a local hospital where he was pronounced dead. An autopsy revealed that Sgt. Powell died of acute cardiac failure due to stenosis of the aortic valve. The coroner’s certificate of death lists acute cardiac failure as the cause of death. The Claimant, Darla Powell, the surviving spouse of the decedent, is the designated beneficiary of Staff Sergeant Marvin W. Powell, Jr. pursuant to the Act.

In the many heart attack cases that come before the Court, the issue is whether the decedents life was lost as a result of injury received in the active performance of his duties as a National Guardsman and whether the injury arose from violence or other accidental cause. 20 ILCS 1825/2.

The facts of this case are closely analogous to those of In re Application of Elizabeth Gasper (1965), 25 Ill. Ct. Cl. 186. In Gasper, supra, the widow of a major in the Illinois Air National Guard sought benefits as the result of her husbands death while performing duty in an “Inactive Duly Training” status. (Id. at 187.) The Court found that Mrs. Gasper was entitled to the compensation available under the Act because her husband was performing inactive duty training at the time of his death as ordered by his commanding officer and therefore died in the line of duty. Staff Sergeant Powell died while performing a physical task.

The decedent died within one year of the injuries he sustained from an accidental cause, i.e., acute cardiac failure due to stenosis of the aortic valve. The decedents death was not a result of willful misconduct or intoxication of the decedent. The applicant submitted a claim within one year of the decedent’s death. The proof submitted in support of this claim satisfies the requirements of the Act that the decedent was acting in the line of duty at the time of his death and the claim is therefore compensable thereunder.

Therefore, it is ordered that Claimant, Darla Powell, surviving spouse of the decedent, Marvin W. Powell, Jr., be and hereby is awarded $50,000 pursuant to the Illinois National Guardsman’s Compensation Act.


author: Epstein, J.

text:
    (No. 95-CC-3631
    Jack Kulas, Claimant, v. Joseph H. Vogler, Public Administrator and Guardian of Lake County, Respondent.

      Order filed May 6, 1997.

    Derek A. Gilna, for Claimant.
    Jim Ryan, Attorney General (Iain D. Johnston, Assistant Attorney General, of counsel), for Respondent.
   ORDER ON MOTION TO DISMISS

Epstein, J.

This claim is before the court on the Respondents section 2 — 619 motion to dismiss (735 ILCS 5/2 — 619), supported by an affidavit and contract documentation, which asserts that this court lacks subject matter jurisdiction over this claim. Claimant did not file a response.

This real estate contract claim is brought against Respondent Vogler as “an officer of the state” and names him in his capacity as the Public Administrator and Guardian of Lake' County, in which capacity he is alleged to have acted in the transaction that is the subject of this claim. In particular, Respondent Vogler is alleged to have executed the real estate purchase/sale contract (on which this claim is based) in his capacity as a State official. The Claimant, as contract buyer, seeks damages for Respondents alleged breach of his contract to convey real estate.

Respondent asserts that in this transaction he was acting as the judicially-appointed executor of an estate. Respondent contends that this claim is actually against the estate, and against him only in his capacity as executor and not in his capacity as public administrator (i.e., not as a State official or State employee) and that therefore this action is not against and does not he against the State. Respondent argues that this Court lacks jurisdiction over this claim because the claim is against the estate.

Although Respondents analysis is a slight oversimplification, we agree. This claim is not properly against the State. According to the substantive allegations of the complaint, this is a claim solely against the probate estate. As appears from the complaint as well as from Respondents motion, Respondent Vogler undisputedly executed the real estate contract in his capacity as executor of the estate, and only in that capacity. Claimants contract was thus with the probate estate and not with the State of Illinois, and we find nothing in the complaint to allege otherwise.

In addition, the complaint seeks relief only from the estate. Nothing in the complaint seeks payment of State funds; nothing in the complaint provides a claim against State funds.

As a claim against a probate estate, this claim is outside the jurisdiction of this Court as prescribed by section 8 of the Court of Claims Act. (735 ILCS 505/8.)

We must point out that Respondent has failed to address the fact that he simultaneously held both the State capacity and the judicially-appointed private capacity. It may be argued that to some extent he acted both as executor and as Public Administrator. (It appears, for example, that Mr. Vogler was appointed to the second capacity (executor), because of his status as Public Administrator.) Like policemen off duty but within their jurisdiction, the Claimant never quite loses his status as a public officer. But he does not always act in his State capacity even though he retains it. It is clear in this contract case that the operative capacity in which Mr. Vogler acted in this real estate transaction was that of executor and not that of his public office. Moreover, no substantive or substantial nexus with his official capacity has been alleged.

However, our conclusion here does not suggest that there can never be a case where both public and private capacities may be operative so as to give rise to some kind of State liability. That possibility, however, is not fairly presented in this case.

This claim is dismissed for want of subject matter jurisdiction.


text:
    (No. 96-CC-0163
    Joseph M. Glisson, Claimant, v. Southern Illinois University, Respondent.

      Opinion filed December 27, 1995.

      Opinion filed October 18, 1996.

    Joseph M. Glisson, pro se, for Claimant.
    Lee Ellen Starkweather, for Respondent.
   OPINION

Epstein, J.

Claimant Joseph M. Glisson filed his 4-count, 77-paragraph verified complaint pro se, in which he alleges libel and slander by the Respondent, Southern Illinois University (SIU), through the acts of certain of its employees. These claims for declaratory and injunctive relief and damages are before the Court on the Respondents motion to dismiss.

Respondent’s motion is based on the statutory tort notice requirement of section 22 — 1 of the Court of Claims Act (705 ILCS 505/22 — 1); Respondent asserts that Claimant did not comply with our rule 50(b) (74 Ill. Adm. Code 790.50(b)) [Complaint — Required Provisions, (b) Personal injuries] in that Claimant’s complaint in this Court failed to have attached to it

° ° copies of the notices served as required by Sec. 22 — 1 of the Court of Claims Act [citation omitted], showing how and when such notices were served.”

It is undisputed that Claimant Glisson did not file the statutory notice with the Attorney General or with our clerk and did not attach such notice to his complaint.

Compliance with the notice requirement is jurisdictional. While timely inclusion of the notice with a complaint in this Court can satisfy both the statute and the rule (Crosier v. State (1988), 40 Ill. Ct. Cl. 202), it is also clear that the mle is coextensive with the statute, which it implements. Service and filing of the notice are not required if the notice statute is inapplicable, which is what Claimant contends in reply to the University’s motion.

Mr. Glisson argues that the statutory notice requirement does not apply to defamation actions, like the libel and slander claims in this case, for which he relies primarily on the language of section 22 — 1. The specific statutory construction issue thus presented by this motion is whether or not defamation actions are claims "on account of # * * injury to [the] person” within the meaning of the section 22 — 1 notice statute.

Although neither of the parties has drawn our attention to precedents, this Court has held that a slander action:

“* * * is a ‘personal action’ but not an action for personal injuries. Therefore, notice [i]s not required to be filed pursuant to section 22 — 1 of the Court of Claims Act.” Fryman v. Board of Trustees of the University of Illinois (1989), 42 Ill. Ct. Cl. 132, 135 (order on motion to dismiss, per Raucci, J.)

Fryman would end the debate in this case, except for two factors that prompt us to revisit this narrow but recurring issue. First, in Fryman, which involved a slander claim, this procedural issue was disposed of by summary order. Second, two arguments are advanced here that were not raised in Fryman which warrant a fresh review and opinion by this Court.

Section 22 — 1 of the Court of Claims Act provides, in relevant part (emphasis added):

‘‘§22 — 1. [Actions for personal injuries — Notice—Contents.] Within 1 year from the date that such an injury was received or such a cause of action accrued, any person who is about to commence any action in the Court of Claims against * * * the Board of Trustees of Southern Illinois University ’ 9 ° for damages on account of any injury to his person shall file in the office of the Attorney General and also in the office of the Clerk of the Court of Claims, either by himself, his agent, or attorney, giving the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, a brief description of how the accident occurred, and the name and address of the attending physician, if any, except as otherwise provided by the Crime Victims Compensation Act.” 705 ILCS 505/22—1.

Respondent urges that the statutory phrase "injury to his person,” which defines the class of claims to which this notice requirement applies, should be construed to include defamation claims on the basis of the character of defamation injuries and the legal meaning of the terms employed in the statute. Respondent does not, however, cite any settled definition or judicial construction of “injury to the person,” and we have found none.

Nevertheless, Respondent cites an encyclopedia definition of the similar term “personal injury” (74 Am. Jur. 2d Torts, §2) and a statement from the same treatise that “Defamation law protects interests of personality, not of property.” (50 Am. Jur. 2d, Libel and Slander, §2.) Finally, Respondent advances a statutory construction argument based on the Illinois General Assembly’s treatment of the identical phrase in a separate statute (the Survival Statute, 735 ILCS 5/27—6) where the legislature specified survival of damages actions for “injury to the person [except slander and libel].” This legislative usage is said to demonstrate the legislative meaning or understanding of the term “injury to the person” to include defamation injuries.

We are unpersuaded by the definitional arguments revolving around the similar but distinct phrase “personal injury.” Indeed, the fact that the phrase “personal injury” seemingly has a fairly settled legal meaning, while the less common usage “injury to the person” does not, at least suggests that a different meaning might have been intended. Neither argument, however, is compelling.

Respondent’s second contention, based on the legislative usage, in another act, of the same term with the limiting parenthetical qualifier, is a cogent legislative interpretation argument. However, upon close examination, that legislative usage in the survival statute discloses little more than that its legislative draftsman or draftswoman considered that the unqualified phrase “injury to the person” might include defamation injuries, not that it necessarily does. This conclusion flows from the unusual employment of a parenthetical qualifier in this statute — a hesitant clarifier — as well as from the absence of any settled common law definition for this legal term to which the legislative drafter might have been responding. In this context, the parenthetical is evidence of the absence of a defined meaning much more than it is evidence reflecting the existence of one.

The term “injury to the person” standing alone is remarkably ambiguous with respect to injuries to reputation; the phrase does not itself include nor exclude defamatory injuries. Whether the phrase was intended to include or exclude defamation injuries, therefore, turns on manifested legislative intent, for which one must turn to the statutory context, the legislative purpose of the Act or of the statutory amendment that added the phrase and, where available, the legislative debates and other legislative history.

The legislative purpose and language of this section 22 — 1 tort notice statute (705 ILCS 505/22—1) strongly indicate that the phrase “injury to the person” was intended to have its narrower meaning here, where “person” means the physical person, rather than the broader reference to personal rights. The Claimant, arguing pro se, nicely summarizes the point in his argument that section 22- — 1 requires notice for “bodily injury” type of damages claims. We essentially agree.

Both the ensuing language of section 22 — 1 of the Court of Claims Act, as well as its prescription of the kinds of information required to be disclosed, make it clear that physical or bodily injury is the subject — and the sole object — of this notice requirement. Several of the mandated informational disclosures would have little or no application to defamation torts. This statutory provision clearly focuses on physical not verbal torts. And its purpose, to allow the State to timely investigate the occurrence that gave rise to the impending tort claim, is also focused on the physical evidence involved. For libel and slander claims, an urgent need to collect and analyze and preserve physical evidence and to interview and preserve testimony of third-party witnesses, is hardly necessary as a matter of routine.

Finally, we must emphasize the unspoken premise of statutoiy tort claim notice requirements, which is timing. The underlying purpose of these notice requirements is to mandate early notice of the central facts of an incident to be litigated before the complaint is filed (which ordinarily will communicate the same information and more) which can be long after the incident. The potential time gap between the incident and the filing of the complaint is determined by the applicable statute of limitation (or of repose). The notice requirement is necessary to protect the Respondents ability to defend — especially to gather evidence before it goes stale — because the Claimant can wait till the end of the limitation period to file.

In the case of libel and slander actions in Illinois, where the normal limitation period has long been one year (735 ILCS 5/13—201), this one-year notice statute normally has no application at all and serves no purpose. Indeed, the notice requirement is ordinarily moot. In this context, it is very difficult to argue that the General Assembly intended that defamation claims were a target of the notice requirement.

For all of the foregoing reasons, we adhere to Fryman v. Board of Trustees of the University of Illinois (1989), 42 Ill. Ct. Cl. 132, and again hold that the notice requirement of section 22 — 1 of the Court of Claims Act does not apply to defamation claims. Accordingly, the Respondents motion to dismiss based on the section 22 — 1 notice requirement must be, and is, denied. This cause is remanded to a commissioner for further proceedings.

Motion denied; claim remanded.

OPINION ON SECOND MOTION TO DISMISS

Epstein, J.

These libel and slander claims are back before the Court on the Respondent Southern Illinois University’s second motion to dismiss. We previously upheld Claimant Glisson’s pro se four-count complaint against Respondent’s procedural objection under the tort notice requirements of section 22 — 1 of the Court of Claims Act (705 ILCS 505/22 — 1), in our opinion filed December 27,1996.

The Respondent now attacks Mr. Glisson s complaint on more substantive but still procedural grounds in its section 2 — 619 motion to dismiss, which contends that Mr. Glissons respondeat superior claims against the University are barred by res judicata (by the judgment against Claimant’s libel/slander claims against the alleged tortfeasor-employee) and by the one-year Illinois statute of limitations for defamation actions. 735 ILCS 5/13—201.

The Res Judicata Arguments

Respondent contends that these defamation claims against it are barred by the August 3, 1995, judgment in Glisson v. Wright, No. 95-L-151, Circuit Court, First Judicial Circuit, Jackson County, Illinois (William G. Schwartz, J.), which dismissed with prejudice Claimant’s libel and slander claims against Ms. Wright individually. Respondent urges that that judgment was on the merits, that it adjudicated the underlying tort claims on which this case is based, and that it bars these claims which assert respondeat superior liability of the University as Wrights employer. Respondent points out that the Claimant has acknowledged in this Court that his circuit court claims against Ms. Wright “aris[e] out of the same occurrences” as his claims against the University here. Compl., at 24; Additional Required Provisions, par. 8.

Claimant offers two responses. He first points out that the circuit court judgment was appealed, and urges that a ruling on res judicata is premature until the appellate process finally affirms or reverses the judgment for Ms. Wright. Second, Claimant says that his circuit court complaint is “not identical” to his complaint in this Court, from which he argues that “it is possible” he could lose the appeal “and still have a viable case against SIU.”

Analysis: Res Judicata

We agree with Claimant that the res judicata issue is not ripe for decision while the circuit court judgment is not final. We have therefore stayed our proceedings. However, on July 26, 1996, the Appellate Court issued its Rule 23 Order affirming the dismissal with prejudice of Claimants actions against Respondents employee. (Glisson v. Wright (5th Dist. 1996), No. 5-95-0712, Rule 23 order.) No further appeal was taken.

The appellate court rejected Mr. Glisson’s libel and slander claims outright. That court held that the alleged statements and publications by Ms. Wright were not libelous per se and in their context were not libelous at all under Illinois’ innocent construction rule (Glisson v. Wright, at 6-8), and at most constituted protected expressions of opinion (id., at 8.) The appellate court did not rely on, but also did not reverse, Judge Schwartz’ finding that

“* ° ° the plaintiff [Mr. Glisson] * * * has been actively involved in the public debate regarding logging in the Shawnee Forest. By placing himself in that debate, he has placed himself and his opinions in the public arena of comment.” Glisson v. Wright, No. 95-L-151 (Cir. Ct., 1st Jud. Cir., Jackson Co., 1995), at p. 3.

In any event, the Glisson v. Wright judgment is now final, and is plainly a judgment on the merits by a court of competent jurisdiction. It is thus res judicata as to the libel and slander claims against Ms. Wright. Accordingly, insofar as Mr. Glissons claims against the University are based on. Wrights alleged tortious acts, and insofar as the University’s liability rests on respondeat superior, it is clear that the judgment in favor of Ms. Wright bars the derivative action against her employer on the same underlying tort. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217; Leavitt v. Hammonds (1993), 256 Ill. App. 3d 62, 628 N.E.2d 280.) The “Towns Rule” (see Bachenski v. Malnati, 11 F. 3d 1371 (7th Cir. 1993)), is a straightforward application of the bar wing of the three-winged res judicata doctrine.

Other Bases of University Liability

The only remaining inquiry is whether there is embedded somewhere in this tree-savaging 27-page+ complaint any other — i.e., any unbarred — basis for defamation liability of the Respondent University. This inquiry is prompted but unaided by Claimant’s cryptic contention that his complaint in this Court is “not identical” to his adjudicated allegations in the circuit court. Assuming that to be true — although the naked eye fails to confirm this — the pertinent but ignored question is whether there is any substantively material difference between the two sets of allegations. Claimant Glisson, a man of no few words, cannot somehow find 77 syllables to explain just how his 77-para-graph complaint in this Court differs from his 58-paragraph complaint in the circuit court. Nor does he dispute Respondent’s contention that the sole basis of the University’s liability asserted by the complaint here is respondeat superior:

We have nevertheless reviewed Mr. Glisson’s complaint for allegations of: (1) any non-Wright-based libel or slander claims against the University; and (2) any direct, non-derivative liability on the part of the University. We find neither. That, finally, ends the analysis.

The Statute of Limitations Issue

Because the respondeat superior liability of the Respondent is barred by the circuit court judgment, and because the Claimant has asserted no other basis of liability against the Respondent, the foregoing analysis disposes of these claims and we need not address the limitations issues advanced.

Conclusion and Order

The Respondent’s section 2—619(4) motion to dismiss these claims as barred by the judgment in Glisson v. Wright (Cir. Ct., Jackson Co., 1995, No. 95-L-151), aff’d (App. Ct. 5th Dist. 1996, Rule 23 order, No. 5-95-0712), is granted. These claims are dismissed with prejudice.

       Respondent’s motion also argues (Ft. II, pars. G-I) that the University is not liable under respondeat superior because the alleged tortious conduct of its employee was “not within the scope of her employment as alleged * e This independent contention is unsupported by evidentiary material, as is required of section 2 — 619 motions based on facts dehors or contrary to the allegations of the complaint. Accordingly, this argument is disregarded.

       It must be noted that neither Claimant nor Respondent bothered to inform this Court that the Appellate Court had issued its decision in Glisson v. Wright.


text:
    (No. 96-CC-2553

      In re Application of Brian Jay Holt

      Opinion filed July 3, 1996.

    Fellheimer, Travers & Engelman (Garth S. Seiple, of counsel), for Claimant.
    Jim Ryan, Attorney General (Julie A. Smith, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

This claim arises out of the death of Betty Jean Holt on July 21, 1995. Mrs. Holt was a certified Emergency Medical Technician-Intermediate (EMT-A). The decedent’s surviving spouse, Brian Jay Holt, the Claimant herein, seeks compensation pursuant to the provisions of the Law Enforcement Officers, Civil Defense Workers, Civil Air Patrol Members, Paramedics, Firemen and State Employees Compensation Act (the Act). 820 ILCS 315/1, et seq.

The decedent, Betty Jean Holt, was an EMT-A which is defined as a person who has successfully completed a course of instruction in basic life support services. (210 ILCS 50/4.12.) She had also been provisionally qualified as an EMT-I which is defined as a person who has completed a course of instruction in specific advanced life support-mobile intensive care services. (210 ILCS 50/4.15.) EMT Holt was providing emergency medical services through the Duffy Ambulance Service which had an agreement with the Village of Odell to provide emergency medical services to that village and the surrounding communities.

At the time of her death, EMT Holt was responding to an emergency call to assist the victim of an apparent heart attack. EMT Holt was the right front passenger in an Odell Fire Rescue Vehicle that was involved in a two-vehicle collision. The collision occurred as a 1994 Ford Explorer driven by Timothy L. Maubach was approaching the intersection of 2200N and 2400E from an eastbound direction and the Odell 1990 Ford F-350 Fire Rescue Vehicle, driven by Carl E. Snyder, along with front seat occupants, Richard Ribordy and Betty J. Holt, was attempting a left-hand turn from 2400E onto 2200N (southbound to eastbound). It was during this general time span that the Maubach vehicle collided with the Snyder vehicle. The force of the collision caused the Snyder vehicle to rotate counterclockwise and break up into two pieces as it tumbled to its final rest. As a result of the collision, EMT Betty J. Holt suffered multiple blunt injuries of which she died that same day.

Based on a review of the decedents supervisors statement and the McLean County Traffic Collision' Investigation Team Report, the Court finds that the decedent was killed in the line of duty as contemplated by the Act, and more specifically, lost her life as a result of injuries received in the active performance of her duties from violence or other accidental cause. (820 ILCS 315/2(e).) The death certificate filed with the case indicates that death was the result of multiple blunt force injuries.

Section 315/2(i) of the Act sets forth the definition of the term “paramedic” as follows:

“(i) paramedic means an Emergency Medical Technician-Paramedic certified by the Illinois Department of Public Health under the Emergency Medical Services (EMS) Act, and all other emergency medical personnel certified by the Illinois Department of Public Health who are members of an organized body or not-for-profit corporation under the jurisdiction of a city, village, incorporated town, fire protection district or county, that provides emergency medical treatment to persons of a defined geographical area.” (Emphasis added.) 820 ILCS 315/2(1).

The facts of this case are as closely analogous to the case of In re Application of Delores E. Mielke (1982), 35 Ill. Ct. Cl. 410. In Mielke, the decedent was a certified paramedic who died of injuries he received while responding to an emergency call. The decedent in Mielke was employed by an ambulance service that had a contract with a local fire department to provide paramedic services. The Court found that the contractual agreement between Mielke’s employer and the village met the requirements of the Pre-Hospital Emergency Medical Services Act, and therefore, qualified Mielke s surviving spouse to receive compensation under the Act. Id., at 412.

In the instant cause of action, the decedent provided emergency medical services through an ambulance service that had an agreement with the local government entity. This agreement met the requirements of the Emergency Medical Systems Services Act (210 ILCS 50/1 et seq.) as attested to by the affidavit of Steve Barron, the emergency services system coordinator. Additionally, the requirements of the Act are met since the decedent meets the definition of “paramedic” as defined by the Act itself. Based on the Toxicology Report and the Collision Investigation Report, it is clear that EMT Holts death was not the result of her willful misconduct or intoxication, but was in fact the result of a tragic set of circumstances culminating in the accidental collision of the two vehicles. Therefore, EMT Holt’s surviving spouse is entitled to receive an award under the Act.

The decedent apparently had not completed a Designation of Beneficiary form. Therefore, pursuant to the Act, the surviving spouse would receive the full award. The Claimant has met all conditions precedent for an award under the Act.

For the foregoing reasons, it is the Order of the Court that Claimant, Brian J. Holt, be awarded $50,000 pursuant to the Law Enforcement Officers, Civil Defense Workers, Civil Air Patrol Members, Paramedics, Firemen and State Employees’ Compensation Act for the death of EMT Betty Jean Holt who was killed in the line of duty.

       Timothy Maubach was the son of the heart attack victim and was attempting to reach his mother at the time of the collision. Mr. Timothy Maubach also died as a result of the injuries he received from the collision.

       This Act is now known as the Emergency Medical Services (EMS) Systems Act. 210 ILCS 50/1 et seq.


author: Raucci, J. Raucci, J.

text:
    (No. 96-CC-2801
    Douglas Keith White, Claimant, v. The State of Illinois, Respondent.

      Order filed August 28, 1996.

      Order on Petition for Rehearing filed January 24, 1997.
    Douglas Keith White, pro se, for claimant.
    Jim Ryan, Attorney General (Donald S. McLaughlin, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, J.

This cause coming to be heard on Respondent’s motion to dismiss, due notice having been given and the Court being fully advised in the premises, the Court makes the following findings:

On March 15, 1995, while Claimant was an inmate at Stateville Correctional Center, the Adjustment Committee found him guilty of possessing a homemade knife in the toilet of his cell on March 10, 1995. According to his complaint, Claimant was given two (2) consecutive months of confinement in Stateville Correctional Center’s Disciplinary Segregation Unit; three (3) consecutive months of commissary denial and audio/visual denial, and approximately six (6) months of B-grade and demotion to C-grade for 6 months.

Claimant alleges on March 15, 1996, Stateville Correctional Center employees refused to examine evidence material to his defense at the prison disciplinary hearing finding him guilty of possessing a homemade knife in the toilet of his cell. In count III, Claimant alleges Stateville employees failed to conduct an investigation of Plaintiff’s material defense. In count IV, Claimant alleges Stateville employees failed to examine material witnesses and other evidence he requested them to examine at an April 10, 1995, rehearing. He alleges he was not afforded any written or other decision of the rehearing despite numerous requests. In count V Claimant alleges he was not afforded any opportunity to attend a fourth disciplinary hearing or know of its contents. Also, Claimant alleges Stateville employee, Shirley J. Muhammed, acted as a trier of fact at the fourth disciplinary hearing despite never being a member of the panel which heard the disciplinary report or heard Claimant articulate his defense to the disciplinary report.

Claimant claims the above allegations violated his right to due process of law secured by the Illinois and United States Constitution and sections 504.80(f)(1) and (2) and 504.80(g)(i) of Title 20 of the Illinois Administrative Code (1995). Title 20 requires that Illinois Department of Corrections inmates be allowed to produce relevant documents in their defense at prison disciplinary hearings and that I.D.O.C. employees consider all material presented at such hearings that is relevant to whether the inmate being tried committed the charged offense.

Claimant alleges that as a result he suffered mental and emotional pain. Claimant seeks from the Respondent the sum of $10,000.

The Court of Claims does not have jurisdiction to review the disciplinary and administrative policies and decisions of the Illinois Department of Corrections. The disciplinary procedures that Stateville Correctional facility has in place and their application to the Claimant in this case are matters within the administrative discretion of the facility. The Court of Claims does not have the authority to interfere in a matter of administrative discretion of the institution. The Court of Claims does not have jurisdiction to consider such a claim. See Holmes v. State, 32 C.C.R. 275, Brady v. State, 32 C.C.R. 240-241. See also: Fedder v. State, 40 C.C.R. 201, 203.

It is hereby ordered that Claimant’s action be dismissed with prejudice.

ORDER

Raucci, J.

This cause coming on to be heard on the Claimant’s petition for rehearing en banc, the Court being fully advised in the premises, the Court finds:

The petition for rehearing en banc should be denied. It is therefore ordered that the Claimant’s petition for rehearing en banc is denied.


text:
    (No. 96-CC-4308
    Lennil Johnson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 17, 1997.

    Lennil Johnson, pro se, for Claimant.
    Jim Ryan, Attorney General (Mark W. Marlott, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

Claimant, Lennil Johnson, an inmate of the Illinois Department of Corrections, filed his complaint sounding in tort on June 6, 1996. Claimant alleged that on or about May 14, 1996, his personal property was taken from his cell at Hill Correctional Center. The case was tried before Commissioner Shadid.

The Facts

On May 7, 1996, Claimant was released from inmate segregation and placed in housing unit 4, cell number R4A27. He had never been in this cell before. He was told by the guards that they did not have a key for R4A27. An Incident Report was filed. Mr. Johnson requested that the locks be changed on the cell because it was his belief that the key may have been stolen. He was issued a replacement key three or four days after May 7, 1996. On May 14, 1996, he returned from breakfast with his cellmate to find that their cell had been ransacked and missing were four pair of Levi jeans, three Levi jean shirts, and one pair of Bass suede shoes, two burgundy bath towels, one sweat shirt, 15 packs of Pall Mall cigarettes, and various commissary food items. The purchase price of these items totaled $352.80.

Claimant filed grievances for his loss which were denied. It is the position of the Department of Corrections that if a key was lost, then a reissue of a new key is made. If the key is stolen, then the locks would be retooled. The States argument is that since Mr. Johnson cannot establish that the key was stolen, then the reissue of a key was proper under the circumstances. Claimant testified he subsequently reassigned himself to a different cell.

Also testifying at trial was Marion Yeazel who was Chief of Security at Hill Correctional Center. He testified as to the procedures that an inmate would follow if he did not have a key. He also testified that the prison policy was that if a key is lost, then a reissue of a new key is proper. If the key is stolen, then the locks on the cell would be changed. Claimant followed all procedures in documenting that he had no key. In fact, the authorities at the facility knew that he had no key when they assigned him to his cell. They informed him that they did not have a key for him and did not know what happened to it. His roommate had a key to the cell.

Claimant itemizes his loss as follows:

4 pairs of Levi Jeans 4 pair @$22 = $ 88.00

3 Levi jean shirts, XL 3 @$34 = 102.00

1 pair of Bass suede shoes 1 pair @$85 = 85.00

2 burgundy bath towels 2 @$7.50 = 15.00

1 sweatshirt 1 @$11.55 ' = 11.55

15 packs of Pall Mall cigarettes 15 @$1.75 = 26.25

Various commissary food items = 25.00

Claimant acknowledges that these values are the total purchase price of all of the items. He does admit that he has no idea what their depreciated value would be.

The Law

The Claimant presents, as his basis for recovery, a negligence theory. An inmate of a State correctional facility may recover under a negligence theory for the loss of personal property from his cell if specific evidence is presented that the inmate had no cellmate, that the lost property was outside the reach of passersby, that the cell door was locked when the inmate left his cell, that there was a lot of traffic in the gallery, and that the State was in complete control of the cell doors. Walker v. State (1986), 38 Ill. Ct. Cl. 286; Lacien v. State (1994), 47 Ill. Ct. Cl. 221; Montgomery v. State (1991), 43 Ill. Ct. Cl. 244.

When no bailment is established, in most cases where personal properly is taken from the cell of an inmate, the Court has denied the inmates claim for damages. (Owens v. State (1985), 3 Ill. Ct. Cl. 150; Edwards v. State (1986), 38 Ill. Ct. Cl. 206.) To prevail, the inmate must prove that a guard participated in or acquiesced to the loss of property. (Bargas v. State (1976), 32 Ill. Ct. Cl. 99.) There is no general duty on the part of the State to safeguard an inmate’s personal property from theft by other inmates when the property is in the inmate’s cell. The State is not an insurer of an inmates property and cannot be held responsible where other inmates engage in criminal acts directed at the property. The State in the exercise of reasonable care cannot be expected to prevent isolated acts of pilferage in the environment of a penal institution. Moore v. State (1989), 42 Ill. Ct. Cl. 226.

In the present case, Claimant had a cellmate, he presented no evidence that the lost property was outside the reach of passersby, he presented no evidence that the cell door was locked when he left the cell, he presented no evidence that there was traffic in the gallery, and he presented no evidence that the State was in complete control of the cell door. (Crossland v. State (1988), 41 Ill. Ct. Cl. 180.) The Claimant has the burden of proving his case by a preponderance of the evidence. He has failed to do so. While the Court sympathizes with his loss, under the law we cannot grant this claim.

For the foregoing reasons, it is the order of the Court that Claimant’s claim be and hereby is denied.


author: Frederick, J. Frederick, J.

text:
    (No. 85-CV-0829

      In re Application of Donna Lufay Gilliard Barrett

      Opinion filed March 13, 1996.

      Order filed August 29, 1996.

    Donna Lufay Gilliard Barrett, pro se, for Claimant.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

The Claimant' Donna Lufay Gilliard, filed her application for benefits pursuant to the Crime Victims Compensation Act, hereinafter referred to as the “Act,” on March 4, 1985. This claim arises out of an incident that occurred on December 24,1984. Donna Lufay Gilliard is the wife of the deceased victim.

On November 21, 1985, the Court rendered an opinion based on the investigatory report which denied the claim. The basis for the denial of the claim was that the Claimant had not sustained a pecuniary loss as defined by the Act. The Claimant made a timely request for a hearing on November 29, 1985. A hearing was held in this matter on July 9, 1991.

The Claimant seeks compensation for loss of support. The Commissioner reports, and the transcript of the trial supports the finding, that Claimant is not seeking compensation for funeral expenses.

There is no question that Timothy Dion Gilliard was the victim of a violent crime. There is also no question that the Claimant and deceased victim were married at the time of death. The evidence indicates that the deceased victim was supporting the Claimant. The sole issue before the Court is whether or not the deceased victim had any earnings in the six-month period prior to December 24,1984, the date of the crime. The investigatory report indicates that the deceased victim had no earnings for the entire period of 1984. However, he did receive $230 per week disability from his employer, Ford Motor Company. The evidence at trial indicates that Claimant had earnings of $208.01 in the six-month period before his death. The Respondents position is that the disability payments are in the nature of accident insurance through the employer and should be deducted from earnings in determining compensable loss under the Act. The Claimants position is that the $230 per week disability payments from Ford Motor Company were payments that helped support her family.

The Claimant has the burden of proof to prove by a preponderance of the evidence that she has met all conditions precedent to substantiate an award under the Act. (In re Application of Lope (1987), 39 Ill. Ct. Cl. 315; In re Application of Bavido (1992), 44 Ill. Ct. Cl. 449.) Compensation under the Act is a secondary source of compensation. The purpose of the Act is to aid innocent victims of crime in stated ways where aid is forthcoming from no other source. When aid is forthcoming from another source, the taxpayers have no statutory obligation to the victim. In re Application of Lavorini (1989), 42 Ill. Ct. Cl. 390.

This is a claim for loss of support. A dependent of a victim may be compensated for loss of support pursuant to section 10.1(b) of the Crime Victims Compensation Act. (740 ILCS 45/10.1.) The maximum award in this case could be $15,000. As used in the Act, dependent means a relative of a deceased victim who was wholly or partially dependent upon the victims income at the time of his death. (740 ILCS 45/2.) The Act also provides in section 2(b) that loss of support shall be determined on the basis of the victims average net monthly earnings for the six months immediately preceding the date of injury or $750 per month, whichever is less.

The Court has adopted the ordinary and common definition of “earnings” for purposes of applying the Crime Victims Compensation Act, which is something earned as compensation for labor or the use of capital. (In re Application of Atwell (1991), 43 Ill. Ct. Cl. 453.) This Court has held that, in determining loss of support for purposes of an award under the Act, that Social Security benefits received by the victim did not constitute earnings upon which to base loss of support since “earnings” have uniformly been defined to be compensation for labor or the use of capital. In re Application of Tigner (1984), 37 Ill. Ct. Cl. 437.

We find, therefore, that the disability payments received by the deceased victim during the six-month period prior to his death were not earnings as defined in the Act. The $230 per week disability payments may not be included to establish a condition precedent to an award under the Act. However, the inquiry does not end there. There is uncontradicted evidence in the record that Timothy Dion Gilliard earned a total of $208.01 in the six-month period prior to his death. This computes to an average net monthly earning for the six months immediately preceding the date of injury of $34.67 per month. The deceased victim was bom on November 7, 1955. The incident occurred on December 24,1984.

Based on the foregoing, we find that Claimant has met all conditions precedent for an award under the Act based on the pecuniary loss as stated herein. It is appropriate that the Attorney General compute the loss based on the life expectancy of the decedent and use the figure of $34.67 per month for the earnings for the six-month period immediately preceding the date of injury. All other required statutory deductions must also be determined.

Therefore, it is ordered that the Attorney General shall compute the loss based on the findings of his opinion and file a supplemental investigatory report and proposed order with the Court within 45 days of the date of this opinion.

ORDER

Frederick, J.

The parties to this proceeding have entered into a stipulation whereby the Attorney General s office has recommended that the sum of $14,800 be paid to the Claimant, Donna Lufay Gilliard for loss of support suffered as a result of the incident.

Wherefore, it is hereby ordered that the sum of $14,800 be made payable to the Claimant for loss of support for herself arising out of an incident in which Timothy D. Gilliard was a victim of a violent crime. In the event of the death or marriage of the Claimant or the Claimants children, it is the duty of the personal representative of the Claimant to inform this Court in writing of such death or marriage for the purpose of the possible modification of the award.

It is further ordered that this case be closed.


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

text:
    (No. 91-CV-1429

      In re Application of Martha Ricardo

      Opinion filed October 18, 1991.

      Order filed December 26, 1996.

    Martha Ricardo, pro s'e, for Claimant.
    Jim Ryan, Attorney General, for Respondent.
   OPINION

Sommer, C.J.

The applicant Martha Ricardo brought this claim on January 8,1991 seeking compensation for funeral expenses under the Crime Victims Compensation Act, hereinafter referred to as the Act. Ill. Rev. Stat., ch. 70, pars. 71, et seq. incurred as a result of the death of her uncle, Rolando Batista. The record before us shows that Mr. Batista was a victim of an aggravated battery on April 4, 1977, and that he died on May 13, 1990. The Attorney Generals investigatory report concludes that the victim died of causes directly related to the 1977 incident and states that the Cook County Medical Examiners Office ruled the death was a homicide. The report states that all conditions of eligibility of the Act have been met and recommends an award in the statutory maximum amount of $3,000.

The length of time between the date of the incident and the date of the death raises an issue of eligibility. Pursuant to section 6.1(a) of the Act, an application for benefits must be filed within one year of the occurrence of the crime upon which the claim is based. The Court can extend that deadline an additional year. In this case, the application was filed approximately 13 years after the aggravated battery occurred. The fact that the death occurred much later is not relevant to the date of the battery. The applicant is not eligible for compensation on the premise that an aggravated batteiy was committed due to the expiration of time.

However, under certain circumstances, it may be possible to establish eligibility based on the theory that a murder was committed. The final element of the murder did not occur until Mr. Batista expired. The length of time between the attack and his death, as it relates to the crime of murder is not relevant. (People v. Carter (1988), 168 Ill. App. 3d 237, 118 Ill. Dec. 983.) The record before us is insufficient for us to conclude that a murder was committed.

It is hereby ordered that this claim is referred back to the Attorney General for further investigation and report. In addition to addressing the issue described hereinabove, the report should include more facts on the issue of causation.

ORDER

Sommer, C.J.

This cause is before the Court on Claimants application for benefits. This claim was scheduled for hearing before a commissioner of this Court on September 27, 1996. A copy of a notice of hearing was mailed to Claimant and was not returned as undeliverable. Claimant failed to attend the hearing.

It is hereby ordered that Claimants application for benefits is dismissed for want of prosecution.


author: Raucci, J.

text:
    (No. 91-CV-2378

      In re Application of Jacob Tenebaum

      Opinion filed October 30, 1996.

    Bobby Little, for Claimant.
    Jim Ryan, Attorney General (Donald C. McLaughlin, Jr., Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, J.

This claim is before the Court for hearing on an application for compensation filed by the Claimant, Jacob Tenebaum, under the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. (740 ILCS 45/1, et seq.) The Claimant filed an application alleging he was entitled to compensation because he was assaulted by a tenant on October 6,1990.

An order was entered by this Court denying the claim based on the Claimants failure to notify appropriate law enforcement officials within 72 hours of the perpetration of the crime or, in the event notification was made more than 72 hours after the perpetration of the crime, establishing that such notice .was timely under the circumstances pursuant to section 6.1(b) of the Act. The Claimant made a timely request for a hearing pursuant to section 13.1 of the Act. A hearing was held before Commissioner Steven Clark on April 30, 1996. Bobby Little, another tenant of the Claimant, appeared on behalf of the Claimant due to the Claimant being hospitalized after suffering a stroke unrelated to the injury at issue in this case. The evidence consisted of testimony from Bobby Little and hospital bills submitted documenting expenses incurred for medical treatment.

At the time of the assault, the Claimant was nearly 73 years old and was being cared for by the nurses from the Visiting Nurse Association. According to a Belleville Police report dated October 12, 1990, police visited the Claimant in the hospital and reported that the Claimant was terrified of his assailant and was fearful of reprisal if he were to report the incident. The suspect was a tenant at the Claimants home and had access to the Claimant. Bobby Little testified that the day after the beating, he called police, who stated that they could not take any action until the Claimant signed a complaint. Bobby Little testified that he reported the assault to the Illinois Department of Aging. Meanwhile, the Claimant was beaten by his assailant again. A police investigation began after two representatives of the Visiting Nurse Association of the Department of Aging appeared at the police station to seek an investigation. The assailant was apprehended and charged.

According to bills from Memorial Hospital in Belle-ville, Illinois, tihe Claimant incurred a total of $5,133.85 as a result of the beatings the Claimant suffered at the hands of his assailant. Medicare paid $4,501.65 of these bills,, and Claimant paid $632.20.

The Court has previously held that delays in .reporting crimes to the police will bar compensation under the Act. (In re Application of Smith (1981), 35 Ill. Ct. Cl. 536; In re Application of Goodwin (1976), 31 Ill. Ct. Cl. 716.) In Smith, a nine-day delay in reporting a sexual assault caused a claim for compensation to be denied after the Claimant failed to establish that such notification was timely under the circumstances. (Smith, 35 Ill. Ct. Cl. at 538.) In Goodwin, the Court stressed that one of the objectives of the Act is to encourage prompt notification of crimes to law enforcement officials and full cooperation with law enforcement officials. (Goodwin, 31 Ill. Ct. Cl. at 717.) The Court also stressed that the Claimants delay in reporting the crime may have prevented apprehension of the suspect. Id.

Considering the Claimants age and his well-grounded fear of his assailant, who did in fact beat the Claimant a second time, the Claimants reluctance to report the beatings is understandable. Bobby Little attempted to report the crime the day after it occurred, but the police did not contact the Claimant until representatives of the Department of Aging personally approached the police and accompanied an officer to the Claimant’s hospital room six days after the crime occurred. Furthermore, any delay in reporting this crime, the efforts by police to apprehend and charge the assailant were unimpaired.

Therefore, because it appears that the Claimant, through police reports and the statements of his representative, Bobby Little, has established by a preponderance of the evidence that the appropriate law enforcement officials were notified within 72 hours of the crime that the crime occurred. Bobby Little testified that he notified the police and the Department of Aging the day after the crime. Section 6.1(b) of the Act does not state that the Claimant himself must make the notification. The Court submits that the six-day delay in an official police report being filed in this case was timely under the circumstances due to the Claimants age and fear of the assailant.

It is therefore ordered, adjudged and decreed that the Claimant be compensated in the amount of $632.20 for the medical expenses he paid as full and complete satisfaction of this claim.


author: Per Curiam. Sommer, C.J.

text:
    (No. 93-CV-0692

      In re Application of Martha Montour

      Opinion filed February 28, 1995.

      Opinion filed March 5, 1997.

    Martha Montour, pro se, for Claimant.
    Jim Ryan, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Per Curiam.

This claim arises out of an incident that occurred on January 8, 1991. The Claimant, Martha Montour, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1989, ch. 70, par. 71, et seq.

This Court has carefully considered the application for benefits submitted on September 14, 1992, on the form prescribed by the Attorney General and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on January 8, 1991, Martha Montour, age 63, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: aggravated battery. Ill. Rev. Stat., 1989, ch. 38, par. 12 — 4.

2. That the crime occurred in Chicago, Illinois and all of the eligibility requirements of section 6.1 of the Act have been met.

3. That the Claimant seeks compensation for medical/hospital expenses and for loss of earnings.

4. That after considering insurance and other sources of recovery, the Claimants net compensable loss for medical/hospital expenses is $3,683.90. To date, the Claimant has paid $3,342.90 towards this amount.

5. That section 2(h) of the Act states that loss of earnings shall be determined on the basis of the victim's average net monthly earnings for the six months immediately preceding the date of the injury or on $1,000 per month, whichever is less.

6. That the Claimant’s average net monthly earnings for the six months prior to the incident were $875. Claimant was disabled and unable to work for a period of five months and eight working days. Based upon $875 per month, the maximum compensation for loss of earnings is $4,693.16.

7. That the Claimant has received no reimbursements that can be counted as an applicable deduction under section 10.1(e) of the Act.

8. That the Claimant’s net compensable loss is based on the following:

Compensable

Amount

James Schiappa, M.D..............$ 341.00

Paid medical expenses/compensable loss of earnings................. 8,036.06

Total...........................$8,377.06

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

10. That pursuant to section 18(c) of the Act, the Court may order that all or a portion of an award be paid solely and directly to the provider of services. In the instant case, the Court finds this section applicable and orders that direct payment be made.

It is hereby ordered that the sum of $8,036.06 (eight thousand thirty-six dollars and six cents) be and is hereby awarded to Martha Montour, an innocent victim of a violent crime.

It is further ordered that the sum of $341 (three-hundred forty-one dollars) be and is hereby awarded to James Schiappa, M.D. for the medical expenses of Martha Montour.

OPINION

Sommer, C.J.

The Claimant, Martha Montour, was the victim of the crime of aggravated battery on January 8, 1991, from which she suffered a broken elbow that subsequently required surgery. The Claimant filed a claim for compensation under the Crime Victims Compensation Act, hereinafter referred to as the Act (740 ILCS 45/1-45/20), on September 14, 1992. This Court found that the Claimant satisfied all of the eligibility requirements under the Act and ordered the payment of an award on February 28, 1995. The Claimant received compensation in the amount of eight thousand thirty-six dollars and six cents ($8,036.06) for medical expenses and loss of earnings under section 10.1(a) of the Act and three-hundred forty-one dollars ($341) was paid directly to the provider of medical services under section 18(c) of the Act. The Claimant asked for a review of the decision and amount awarded. A hearing was held before Commissioner Michael E. Fryzel on October 12, 1995.

At the hearing, the Claimant presented no documentation relating to additional medical expenses incurred but requested additional compensation for her mental anguish. The Commissioner allowed 30 days from the date of the hearing for the Claimant to submit additional documentation of bills relating to the crime for which the Claimant was not reimbursed. To date, the Claimant has not filed any additional documentation with the Court.

The Act provides for the victims of violent crimes to be compensated for pecuniary loss, loss of support and other expenses incurred and not reimbursed from sources other than the victim or Claimant. (740 ILCS 45/10.1.) The Claimant was provided with compensation for medical expenses incurred and now seeks compensation for pain, suffering or mental anguish. Under section 2(h) of the Act, the definition of “pecuniary loss” specifically excludes pain and suffering. Therefore, pain and suffering are not claims for which a victim may be compensated under section 10.1 of the Act.

It is therefore ordered that this Courts Opinion of February 28, 1995, is affirmed and the request for additional compensation by the Claimant, Martha Montour, is denied.


text:
    (No. 93-CV-2364

      In re Application of Charles R. Henry

      Order filed July 5, 1996.

    Joseph A. Longo, for Claimant.
    Jim Ryan, Attorney General (Donald C. McLaughlin, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, J.

This claim arises out of an incident that occurred on January 23, 1992. The Claimant, Charles R. Henry, husband of the deceased victim, Linda M. Henry, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740 ILCS 45/1, etseq.

This Court has carefully considered the application for benefits submitted on March 12, 1993, on tire form prescribed by the Attorney General and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on January 23, 1992, the victim was fatally injured as a result of a traffic accident. The incident occurred at the intersection of Foster and California, Chicago, Illinois. Police investigation revealed that the victim was a passenger in a motor vehicle driven by the offender. Prior to the incident, the victim and the offender had been drinking together at a bar. After drinking together for several hours, the offender offered to give the victim a ride in his car. The victim knew the offender was intoxicated at the time of the incident and knowingly entered the offenders vehicle. The offender was apprehended, charged and convicted of driving under the influence of intoxicating liquor.

2. That section 10.1 of the Act indicates factors used to determine entitlement to compensation. Specifically, section 10.1(d) of the Act states that an award shall be reduced or denied according to the extent to which the vic: tims acts or conduct provoked or contributed to his injury, or death, or to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim.

3. That it appears from the investigatory report and the police report that the victim was aware of the drivers intoxicated condition and knowingly entered the motor vehicle with him.

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

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

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