text:
    (No. 97-CC-2197
    Eddie Lee Rogers, Claimant, v. The State of Illinois, Respondent.

      Order filed May 9, 2000.

    Eddie Lee Rogers, pro se.

    Jim E. Ryan, Attorney General (Donald C. McLaughlin, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Epstein, J.

Claimant, Eddie Lee Rogers, an inmate of the Illinois Department of Corrections (IDOC), brought this claim seeking an award of $892.52 in damages for a television set valued at $262.52, a check for $130 for repairs and transportation, and $500 in damages for pain and suffering due to the loss of such television. This case is before us for final decision after trial before our Commissioner, LeRoy F. Ufkes, and is now before us on the complaint of Eddie Lee Rogers, the trial record, and the Commissioners recommendation.

The Claimant testified that on March 16, 1996, while at the Stateville Correctional Center (Stateville), certain stations on his television set were not operating effectively. Claimant took his television to the personal property repair department but they were unable to fix it. Claimant further testified that the repair department advised him to have the television set transported to Video Basics by them and secured a check from him in the amount of $130 for the repair and transportation. However, they sent the television set to R D. Video, a companion company owned by a husband and wife, which apparently went defunct. Claimant testified that he purchased the television set along with other personal property for $262.52 in 1986.

At trial, the Respondent produced no evidence and furnished no brief to explain the disappearance of Claimants property.

This is an unusual property loss case against IDOC; indeed, this is an unusual television loss case. In the garden-variety claims of lost property, particularly televisions, within IDOC facilities or within the IDOC system, it is usually a question of whether or not a bailment was created — i.e., whether the claimants property was remitted to the exclusive control of IDOC in a bailment — that is disputed as the first issue. In this case, there is no real dispute of the creation of a bailment, which plainly occurred. However, there appears to be no violation of the bailment in this case. The bailment here was temporary, and was solely for the purpose of delivering the Claimants television to a local repair shop. So this case cannot be decided on the basis of a bailment liability.

Here, the issue is one of simple negligence, which requires a 3-step analysis: (1) Did the Stateville IDOC staff deliver the television to the wrong recipient — i.e., a repair shop that was unauthorized by the Claimant? (2) If so, was that a negligent act, i.e., did IDOC breach its duty of reasonable care of Claimant’s property in delivering the TV to a different repair shop? (3) If so, was that deliveiy to the wrong shop the proximate cause of Claimant’s loss of the TV?

Then, of course, if liability is established, there is the issue — arising under the requirement of section 25 of the Court of Claims Act (705 ILCS 505/25) and this Court’s implementing rules — of whether or not the Claimant has shown that he exhausted his potential remedies (i.e., his rights to payment for the lost TV and/or his lost repair payment) against the repair shop or its owner, who are the ultimate cause of the Claimant’s loss in this case.

After a full review of this record, we are constrained to find that this claim founders — and clearly founders— on all of the elements, as well as the exhaustion requirement, for want of proof:

(a) It is not clear that the recipient shop, P. D. Video, was a “wrong” or even unauthorized choice; the record reflects that it was a “companion” facility owned by the same owners as Video Basics, the selected store. This may or may not have been a truly separate business, and if it was not, then there is no issue. Claimant has simply not shown that the two are different.

(b) Claimant has not shown that IDOC was negligent in delivering the TV to P. D. Video. The original selection of Video Basis was recommended by the Correctional Centers repair shop staff (and it is not clear if it were IDOC staff or inmates who made the recommendation of a local repair shop) and was approved or adopted by the Claimant. There is no showing that the IDOC staff knew, or should have known, that P. D. Video was a bad choice or even that it was a genuinely different operation than Video Basics, or that there was anything to be known that might have suggested avoiding that repair facility. There is certainly no evidence in this record that IDOC staff had any reason to expect that business to close down and default on its repair obligations.

(c) It is not shown that the choice of P. D. Video over Video Basics was the cause, or even a cause, of the Claimants losses. There is a suggestion in this record that both businesses had financial difficulties and may have closed. If so, there is no basis to find that the “wrong” choice of the one over the other had any effect on the result to Claimants TV and money. If not, we still do not have a basis here to say that the loss would not have occurred if the set and money had been delivered to the other facility. Claimant has just not provided a basis on which we might find proximate causation in this case.

Finally, although it seems obvious — and Claimant maintains — that the ultimate cause of his losses was the fault of P. D. Video and/or its owner(s) who were the ones who got his money and television and returned neither, there is not a hint in this record that the Claimant pursued any claim against them. Certainly he did not file suit against them, which would seem to be the minimum required to exhaust his remedies. Nor do we find in this record any obvious justification for not pursuing P. D. Video, such as bankruptcy by it, or some other reason that it would have been futile to pursue it for damages — or merely to regain possession of the TV (the disposition of which remains a mystery here).

Claimant has not proven a claim against IDOC for loss of his TV and repair money, which were lost due to someone elses violation of their duty to him (i.e., their duty to repair and return his television). He has not shown why the liability of the repair shop and its owners was not pursued or was not pursuable. This is unfortunate, as it seems clear that this Claimant was not at all at fault here. This inmate was an innocent party in this affair, but he cannot foist his loss onto IDOC without evidence, which is here lacking.

Accordingly, we must and will deny this claim for want of proof. Wherefore, it is hereby ordered this claim is denied and forever barred.


source: Caselaw Access Project

author: JANN, J.

license: Public Domain

text:
    (No. 97-CC-2854
    Maurice Goldman, father of Corese Goldman, a minor, Deceased, Claimant, v. The State of Illinois, Respondent.

      Order filed March 31, 2000.

    Michael S. Baim, for Claimant.
    Jim E. Ryan, Attorney General (Tomas A. Ramirez, Assistant Attorney General, of counsel), for Respondent.
   ORDER

JANN, J.

This cause coming to be heard on Respondent, the State of Illinois’ (Respondent) motion to dismiss, due notice given and this Court being fully apprised:

This Court finds that Claimant has filed this complaint seeking damages for the alleged wrongful death of his natural son, Córese Goldman on February 25, 1995. In April 1994, Córese Goldman was placed in the custody of the Department of Children and Family Services. In June 1997, the Cook County Public Guardian’s office filed a Petition for Adjudication of Parental Neglect Pursuant to section 2 — 6.5 of the Probate Act (755 ILCS 5/2 — 6.5), seeking to bar Claimant, as well as Sharon Robinson, Coreses natural mother, from benefitting in any manner from Coreses estate.

On September 26, 1997, the Probate Court entered an order which stated in relevant part:

"On the basis of the Court's finding of parental neglect pursuant to 2 — 6.5 of the Probate Act, Maurice Goldman Sr. shall not participate in the distribution of the estate of Córese Goldman.”

Pursuant to the Probate Court order, the Claimant is prohibited from benefitting from the death of Córese Goldman and also from participating in the distribution of any monies from Coreses estate.

This Court has dismissed similar causes of action for the reasons stated above. In Bolden v. State (1999), 51 Ill. Ct. Cl. 413, this Court found that one of the bases of dismissal for the complaint was the fact that another court had entered an order negating the Claimants right to any interest in his deceased daughters estate.

Accordingly, the instant cause of action is barred by the Probate Courts order preventing Claimant from receiving any benefit from the death of Córese Goldman.

It is hereby ordered that Respondents motion to dismiss is granted. Claimants complaint is dismissed with prejudice.


author: Raucci, C.J.

text:
    (No. 97-CC-3673
    David L. Dean, Claimant, v. The State of Illinois, Respondent.

      Opinion filed July 16, 1999.

    David L. Dean, pro se.

    Jim E. Ryan, Attorney General (Brian J. Dees, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Raucci, C.J.

This is a claim for loss of property pursuant to section 8(c) of the Illinois Court of Claims Act. (705 ILCS 505/8(c).) The Claimant seeks $218.75 for the alleged loss of various items of personal property alleged to have been lost through the fault or neglect of Respondents Department of Corrections.

A hearing was held before Commissioner Robert H. Rath. Claimant testified that on March 11, 1997, he was packed at Menard Correctional Center for transfer to Joliet Correctional Center. He had a television and a fan which were in perfect condition. When Claimant got to the Joliet Correctional Center, both the television and the fan were destroyed. Claimant seeks $206 for the television and $12.75 for the fan. Those were the prices paid by him.

At the time of the loss, the fan was six months old; and the television was five years old. Claimant had lifetime guarantees on both.

The State has a duty to exercise reasonable care to safeguard and return an inmates property when it takes voluntary exclusive possession of such property, as during the course of the transfer of an inmate between penal institutions. (Lewis v. State (1985), 38 Ill. Ct. Cl. 254; Doubling v. State (1976), 32 Ill. Ct. Cl. 1.) In the present case, the Claimant was transferred between penal institutions and received a receipt for his property. The record is uncontroverted that the Claimant’s property was destroyed while in the voluntary exclusive possession of the Respondent. A loss of property while in the possession of a bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. (Harris v. State (1989), 41 Ill. Ct. Cl. 184, 188.) The State has not rebutted the presumption and is hable for the loss.

The question of damages remains. Regarding the value to be assigned to the lost and destroyed property, this Court has granted awards in cases where, although there were no receipts available, the Claimant’s testimony regarding the value of property was credible enough to make an award. (Seats v. State (1994), 46 Ill. Ct. Cl. 418.) In Seats, this Court stated that values as established by the prisoner’s own testimony are not speculative, but are to be weighted by the Court in conjunction with all the evidence before it, including the credibility and demeanor of the parties. (Id. at 420.) In the instant case, the Respondent put on no evidence to rebut the values established by Claimant. Furthermore, the prices listed appear to be reasonable and not inflated.

In some cases, this Court has awarded Claimants the full value of their property in bailment cases without allowing for depreciation, while in other cases, the Court has reduced the claimed amount by depreciation, usually amounting to one-third of the value of the property. When declining to consider depreciation, the Court has pointed out:

0 * that a prisoner’s situation is somewhat different from that of a civilian. When a prisoner loses an item, he must generally go to the commissary to purchase a replacement at the commissary’s prices, and due to a prisoner’s generally impoverished condition he often has to do without the lost item if not reimbursed adequately. An excessive assignment of depreciation effectively deprives the prisoner of his property. If the prisoner had a working television set when he was transferred, he should be entitled to a working television set when he arrives. If it does not work or is missing, he has nothing.” Seats, 46 Ill. Ct. Cl. at 419, 420.

According to the Claimant’s testimony, the fan was six months old and the television was five years old. Based upon the age of the goods, and the standards enunciated above, we find that depreciation of 25 percent should be applied to the television and that no depreciation should be applied against the fan. We award Claimant $12.75 for the fan, and $154.50 for the television. The total award is therefore $167.25.

It is therefore ordered, adjudged and decreed that Claimant is awarded one hundred sixty-seven dollars and 25/100 ($167.25) in full and complete satisfaction of this claim.


author: Epstein, J. Epstein, J.

text:
    (No. 97-CC-3911
    Karen Sarpolis, Claimant, v. Board of Trustees of the University of Illinois, Respondent.

      Opinion on motion to dismiss filed January 5, 1999.

      Order filed February 29, 2000.

    Karen Sarpolis, pro se.

    Arnstein & Lehr (Norman P. Jeddeloh, of counsel), for Respondent.
   OPINION ON MOTION TO DISMISS

Epstein, J.

These tortious interference with contract, fraudulent misrepresentation, and defamation claims against the University of Illinois (the University or Respondent) are before us on the Respondents motion pursuant to section 2 — 619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2 — 619(a)(5)) to dismiss the tortious interference and fraudulent misrepresentation claims as time-barred by the two-year residual limitation of section 22(h) of the Court of Claims Act (705 ILCS 505/22(h)), and to dismiss the defamation claim as time-barred by the one-year limitation of section 13 — 201 of the Code of Civil Procedure. 735 ILCS 5/13 — 201.

The Limitations Issue

This action was filed on May 22, 1997, sounding in tortious interference with contractual rights, well over two years, but less than five years after the allegedly tortious conduct of University officials that gave rise to the Claimants various cause(s) of action.

The issue as to each of the three claims is which statute of hmitations is applicable. As to the tortious interference claim, and apparently as to the fraudulent misrepresentation claim, the applicability dispute is between section 22(a) of the Court of Claims Act (five-year limitation for claims “arising out of a contract”) (705 ILCS 5/22(a)) and section 22(h) of the Act (two-year limitation for “all other claims” not otherwise covered by sections 22(a) through 22(g)) (705 ILCS 5/22(a)-(g)). Claimant disputes the applicability of section 22(h) to the tortious claim, which she maintains is governed by the five-year contract claim limitation of section 22(a) of our Act because her tortious interference claim “arises out of’ her student contract with the University.

As to the defamation claim, and seemingly also as to the misrepresentation and tortious interference claims, Claimant asserts that the statute did not commence to run against her until her discovery, .in May 1997, of communications from University officials to Northwestern University, and that this critical information was withheld from her by the Respondent until she forced disclosure by invoking federal statutory rights in a complaint to the U.S. Department of Education. Claimant thus invokes a tolling defense against the applicable limitations.

Analysis

Claimants tortious interference with contract claim sounds in tort, and is not covered by any of the specific statutes of kmitation in sections 22(a)-(g) of our Act; this claim is therefore governed by the residual two-year statute of kmitation in section 22(h) of our Act. Claimants argument that the specific “contract” kmitation of section 22(a) applies is clever, but without basis.

A tortious interference with contract claim is not a claim “arising out of a contract” (emphasis added) although it surely pertains to a contract and to contractual rights that are akegedly injured. Any act that constitutes a tortious interference with a contract is, by definition, an act against a contract or a contractual right. The section 22(a) language “arising out of a contract” refers to the claim and its legal basis. A contract may be the target of a tortious act, but is not the legal basis of a “tortious interference” claim. A tortious interference act is actionable not because the contract makes it wrongful but because the civil law of torts makes it wrongful. A tort claim “arises out of’ duties imposed by law, not duties imposed by contract. This same reasoning applies to Claimant’s misrepresentation claim, which is also a tort.

Claimant is misguided when she cites appellate decisions that hold that these kinds of tort actions are subject to a five-year kmitation in the circuit court under the residual limitation provision. (See section 13 — 205 of the Code of Civil Procedure, 735 ILCS 5/13 — 205); e.g., Johnson v. Lincoln Christian College (4th Dist. 1986), 150 Ill. App. 3d 733, 501 N.E.2d 1380; Collucci v. Chicago Crime Commission (1st Dist. 1975), 31 Ill. App. 3d 802, 334 N.E.2d 461.) The fact that section 13 — 205, standing alone, provides a five-year limitation, is not dispositive in this Court.

The limitations analysis for actions in the circuit court is governed exclusively by the limitations in Article 13 of the Code of Civil Procedure (and any specific provisions in other statutes, usually as to statutory actions). Claims in the circuit court, unlike claims in this Court, are not subject to the limitations in the Court of Claims Act. Our Act not only imposes different limitations on some particular kinds of claims than does the Code, but is written to address fewer and different categories of claims than is the more detailed Code of Civil Procedure. The Court of Claims Act limitations apply uniquely in this Court, but not exclusively.

The limitations analysis is simply not the same in this Court as in the circuit court. In that court, as observed above, the Code limitations are normally the only applicable limitations. In this Court, however, the limitations in our Act (set out in section 22) are the primary, but not exclusive, hmitations. This Court must also look to the limitations under the Code (and any other applicable statutes) to see if any shorter limitation also applies to a claim before us. Section 22 of our Act dictates to us — and to litigants in this Court — that where both our Act and another statute both apply, the shorter statute of limitations controls. (See Thomas M. Madden Co. v. State (1998), 51 Ill. Ct. Cl. 317.) For this reason, the one-year limitation of section 13 — 205 of the Code of Civil Procedure governs Claimants defamation claim.

Because of our holding that the defamation claim is subject to the one-year limitation, we need not now address the related point argued by the parties as to whether or not Claimant was required to file a notice of claim under section 22 — 1 of our Act. However, see Glisson v. Southern Illinois University (1996), 49 Ill. Ct. Cl. 174 (order on first motion to dismiss) (1995); Fryman v. Board of Trustees of the University of Illinois (1989), 42 Ill. Ct. Cl. 132, 135 (order on motion to dismiss; Raucci, J.).

For the foregoing reasons, Claimants three claims are each time barred, unless the limitations periods were tolled by the Respondents "withholding” of information. Claimant now claims in her brief that the Respondents conduct prevented her from learning of the allegedly wrongful acts until May 1997, and thus tolled the limitations periods.

However, we are not persuaded that the facts alleged in the complaint give rise to a tolling of any of the applicable limitations statutes, and the parties have not adequately addressed either the factual or legal issues generated by the claimed tolling. On the current record, we therefore would have to reject Claimant’s tolling argument.

However, Claimant appears to have anticipated her failure to prevail on this motion, and has requested leave to file yet a second amended complaint, to which the Respondent has not interposed objections. Accordingly, but reluctantly, the Court will allow this pro se Claimant one more chance to plead a survivable claim. Although this Court does not have a three-strike rule on repleadings, we note that there is much wisdom in this traditional American limit, and caution that after three strikes there is a greater burden of persuasion to convince us that the same batter deserves more pitches.

Order

For the foregoing reasons, it is hereby ordered:

1. These claims are dismissed as barred by the applicable statutes of hmitations;

2. Claimant is granted leave to file a second amended complaint, in which she must allege facts that give rise to a tolling of the applicable statutes of limitations, not later than 28 days after the date of this order;

3. If a second amended complaint is not filed by the date required in this order, these claims shall be dismissed with prejudice.

ORDER

Epstein, J.

This cause is before the Court on the Courts own motion.

On June 21, 1999, this Court ordered Claimant to file either a second amended complaint or a motion to reconsider by July 13, 1999. Claimant has filed neither.

It is hereby ordered that this cause is dismissed with prejudice.


author: Epstein, J.

text:
    (No. 97-CC-3978
    Herman J. Shrader, Claimant, v. The State of Illinois, Respondent.

      Order filed March 31, 2000.

    Herman J. Shrader, pro se.

    Jim E. Ryan, Attorney General (Frank J. McCartney, Assistant Attorney General, of counsel) and Jay Spengler, for Respondent.
   ORDER

Epstein, J.

Claimant, Herman J. Shrader, an inmate of the Illinois Department of Corrections (IDOC), brought this claim seeking $2,050 in damages for lost property which he alleges he suffered due to the negligence of IDOC.

This case is before us after trial before our Commissioner, LeRoy A. Ufkes, and is now before us on the complaint of Herman J. Shrader, the trial record, and the Commissioners recommendation.

On November 3, 1996, the Claimant was given a six-hour pass while he was in Winnebago County Correctional Center as an IDOC inmate, having been transferred from Stateville Correctional Center to commence a work release program. Claimant claimed that he was unable to get back to the institution in that time because of some personal family problems. However, the records reflect that the Claimant was picked up in another county and eventually transferred to the Joliet institution facility as an escapee, as he admitted. In the interim, the Winnebago County Correctional Center had disposed of his personal property which he had believed would be kept for him until he moved on to the next place of occupancy.

The IDOC regulations provide that a prison institution has the right within a designated period to dispose of prisoners personal property, either by giving the same to charity or some other like disposal, and that an escape is deemed an abandonment of personal property left behind. DR 535, section 535.130 is cited by the Respondent to this effect. Claimant had abandoned Claimants personal property for the requisite period as well as by escape. Nevertheless, it appears from the departmental report of IDOC that correction officials attempted to contact the individual whom the Claimant had designated to receive his personal property, and only acted upon Claimants abandonment when that person could not be contacted by. IDOC personnel.

In this case, this Claimant had been absent from the Winnebago County Correctional Center for over 30 days, and was deemed an escapee. Under the IDOC regulations, and under the facts of this case, this Claimant has no legitimate claim to any redress for his abandoned property. The Respondent acted properly, and this claim will be denied.

For the reasons set forth above, it is ordered that this claim is denied and forever barred.


text:
    (No. 97-CC-3984
    Russell Block, Claimant, v. The State of Illinois, Respondent.

      Order filed May 16, 2000.

    Kenneth Block, for Claimant.
    Jim E. Ryan, Attorney General (Donald C. McLaughlin, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, C.J.

On May 3, 1997, at 5:15 p.m., the Claimant, Russell Block (with his son Kenneth as a passenger) while backing from a parking stall at the McHenry Dam in McHenry, Ilhnois, caught his front bumper undercarriage on a metal pin used to secure the bumper block. The pin was protruding about two inches. Blocks bumper system was damaged. Block filed a complaint on June 2, 1997, for $982.77 for property damage. A hearing was held before Commissioner Michael E. Fryzel on January 11, 2000.

Block, who has since passed away, was represented by his son Kenneth, who stated that his brother Jeff has been appointed executor or administrator of the estate. Kenneth testified that “I got letters back and forth stating that I should be the one to let the State know that I am doing this cause he is no longer available to do it.” He did not have those papers at the hearing. Kenneth also testified that he has visited the dam spot several times before and never witnessed an incident like this happen before and knew of no complaints to the Department of Energy and Natural Resources prior to this incident.

We stated in Koepp v. State (1993), 46 Ill. Ct. Cl. 344 at 348 that:

“Claimants have the burden of proving, by a preponderance of the evidence, that the Respondent was negligent and that the State’s negligence was the proximate cause of the Claimant’s injuries. Bauman v. State (1981), 34 Ill. Ct. Cl. 140; Phillips v. State (1991), 44 Ill. Ct. Cl. 89; Mathews v. State (1992), 44 Ill. Ct. Cl. 291.”

Further, in Toliver v. State (1994), 47 Ill. Ct. Cl. 55 at 59 the Court noted:

“This Court has consistently held that the State is not an insurer of aU persons traveling on its highways. (Edwards v. State (1984), 36 Ill. Ct. Cl. 10, 15.) However, where a dangerous condition on a State highway exists, and a person using said highway becomes involved in an accident involving the condition, that person must prove, by a preponderance of the evidence, that such dangerous condition existed and that the State had actual or constructive notice of it. See Scroggins v. State (1991), 43 Ill. Ct. Cl. 225.”

In Miley v. State (1997), 50 Ill. Ct. Cl. 41 at 48, 49 we further held:

“° * *. To find that the Respondent had constructive notice of a dangerous condition, it must be shown that the defect was substantial enough and must have existed for such a length of time that reasonable persons would conclude that immediate repairs should be made, or, in the alternative, that warning signs be posted. (Aetna Casualty & Surety Co. v. State (1984), 37 Ill. Ct. Cl. 179,181.) The dangerous condition must have existed for such an appreciable length of time that the Respondent can be charged with negligence in not ascertaining and correcting the condition. Skinner v. State (1975), 31 Ill. Ct. Cl. 45, 49-50.
Where there is an absence of proof as to how long a dangerous condition existed, there is no evidence upon which to charge the State with notice of its existence, and, therefore the requirement of notice is not met. (Baker v. State (1989), 42 Ill. Ct. Cl. 110,115; Cataldo v. State (1983), 36 Ill. Ct. Cl. 23, 25.) In cases where this Court has found constructive notice of a dangerous condition, there has been affirmative evidence of the length of time that the condition existed. See Miholic v. State (1979), 33 Ill. Ct. Cl. 23; Palecki v. State (1971), 27 Ill. Ct. Cl. 108.”

Respondents departmental report includes a July 15, 1997, Illinois Department of Natural Resources letter which states the pins on all bumper blocks were pounded down by a site technician two weeks prior to the incident. The burden of proof is on the Claimant to show how long the dangerous condition existed. Claimant has failed to meet this burden. Therefore, we are constrained to deny the claim.

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


author: Jann, J.

text:
    (No. 98-CC-0594
    Juan Lemes, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 3, 2000.

    Juan Lemes, pro se.

    Jim E. Ryan, Attorney General (Christine Ryan, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Jann, J.

This is a claim for personal injuries brought pursuant to section 8 of the Illinois Court of Claims Act. (705 ILCS 505/8.) The Claimant contends that he was injured when he fell from his top bunk at Jacksonville Correctional Center on April 2, 1997. He claims that he was assigned a top bunk, despite having informed correctional officers that he had a seizure disorder which made it necessary for him to have a bottom bunk. The Claimant is seeking a total of $95,000 in damages.

A hearing was held before Commissioner Clark on July 1, 1999. Testimony was heard from the Claimant; Respondent presented Debbie Rossetto, records office supervisor at Graham Correctional Center, and Dr. Robert McEntyre, medical director at Graham. The Commissioner also considered documents submitted by the Claimant in his complaint and those submitted by the Respondent in its departmental report in his consideration.

The Claimant testified that at approximately 1:00 a.m. on April 2,1997, he fell from his upper bunk, hitting his chin and hand on the floor and knocking out a tooth. The Claimant stated that, when he came into custody, he told a doctor that he was afraid of seizures he suffered in the past. He said that while incarcerated at Danville, a psychiatrist prescribed him Tegretol and assigned him to a bottom bunk because of seizures. The Claimant also testified that he told a doctor at Jacksonville, when he arrived there in 1996, that he had epilepsy.

Debbie Rosetto, record office supervisor at Graham, testified that she reviewed the Claimants master file and found no incident report regarding the fall. She did find medical records that showed that the Claimant was treated on April 2, 1997. She also read the Claimant’s grievance, which stated that a November 5, 1996 health status report from Danville was reviewed in connection with the case, but the report made no mention of reports of seizure activity, and the Claimant was not prescribed any seizure medication.

Dr. Robert McEntyre, medical director at Graham, testified that he reviewed the Claimant’s medical file, which included a problem list showing the medical problems the Claimant reported. McEntyre stated that the only medical problem listed was a motor vehicle accident from 1985, in which the Claimant fractured his skull and was in a coma for 10-12 days. There were no reports of seizures or epilepsy. McEntyre said that generally, such medical problems would be noted in an inmates record on a “problem list.” The problem list is apparently used as a quick reference to identify potentially serious medical conditions. Mr. Lemes’ head injuiy was classified as a “number one” problem in January, 1990, in IDOC records.

Dr. McEntyre also admitted upon cross-examination that Claimant was prescribed an anti-seizure medication prior to January 11, 1996. The record is unclear as to the duration of Claimant’s treatment with said medication and no definitive diagnosis of seizure was made, but Claimant had suffered headaches and “feeling like he had stars in his head.” When the anti-seizure medication was ordered stopped for one month, Claimant was prescribed other medications for headache pain.

Claimant was monitored for seizures following his fall, on July 17, 1997, November 17, 1997 and March 16, 1998. On March 16, 1998, Claimant was released from the clinic for seizure observation and assigned a lower bunk for one year per Dr. McEntyre.

Claimant testified he had been issued a lower bunk due to his medical history for some seven-plus years prior to his fall at Jacksonville. Claimant was apparently first incarcerated in IDOC facilities in January, 1990.

We first note that Claimant requested an interpreter at hearing. A Mr. Roger Williams acted as interpreter. We are not further advised of Mr. Williams’ skills as an inter-, preter nor his relationship, if any, with Claimant or Respondent. Roth the hearing transcript and medical records before us reference difficulties in communication between Claimant and IDOC health care providers and Claimant and the witnesses, Commissioner, and court reporter at hearing.

Secondly, Respondent’s motion for summary judgment was filed June 28, 1999. Hearing was held on July 1, 1999, at Graham Correctional Center. (The hearing date was not previously of record in the court docket.) The motion for summary judgment was not processed and forwarded for consideration until after the hearing. It was not raised at hearing nor considered in the Commissioner’s recommendation to the Court. The Court, lacking notice of the intervening hearing date, entered an order denying Respondent’s motion based upon the existence of genuine issues of material fact to be determined at hearing.

Regarding his injuries, the Claimant testified that he still suffers pain in his wrist, lapses in memory and headaches.

In order to prevail on his claim, the Claimant must prove by a preponderance of the evidence that the State had a duty to protect him from harm, that the Respondent negligently breached that duty, and that the negligence was the proximate cause of the Claimants injury. (Starks v. State (1992), 45 Ill. Ct. Cl. 285, 290.) The State owes a duty to prisoners, that being a duty of protection, and the State must exercise reasonable care toward the prisoners that the prisoners’ known conditions may require. However, the State is not an insurer of the safety of prisoners under its care. Id.

As previously noted, the Claimant’s difficulty in communicating in English has been duly acknowledged by the Court. We have extended the broadest legally permissible latitude in considering Claimant’s pleadings and proofs. However, we must insist upon adherence to basic legal principles and fundamental fairness to both parties. The Claimant ultimately bears the burden of proving each element of his case. Herein, the dispositive issues are:

1. Notice of Claimant’s medical condition to Respondent which would reasonably require assignment to a lower bunk.

2. Rreach of said duty of reasonable care by Respondent after notice of foreseeable harm to Claimant or others in similar circumstance.

3. Proof of damages suffered.

4. Proximate cause.

Respondent has argued that Claimant’s failure to prove that he had a clinical history of epilepsy is dispositive of the notice issue and ergo, breach. We disagree. The record indicates that Claimant’s history of severe head trauma and coma was disclosed and made part of his medical file in 1990. He was also assigned a lower bunk for seven years prior to transfer to Jacksonville and again so assigned after his fall from a top bunk. Clinical evidence of seizure disorder is certainly prima facie proof that a request of a lower bunk should be granted to a reasonable layman. While Claimants IDOC medical file is bereft of a confirmed seizure history, his unrebutted and supported evidence of severe head trauma, treatment of severe headaches with anti-seizure medication at IDOC health care and subsequent care for continuing headache pain before and after the fall from his bunk indicate Claimant was, more probably than not, a person foresee-ably at risk by assignment to an upper bunk.

Respondent offered no evidence as to why Claimant was denied a lower bunk at Jacksonville. The Respondents witnesses were unable to provide full records to the Court at hearing.

Claimant introduced no evidence as to procedure for assignment of bunks. No evidence of IDOC procedure was introduced by Respondent nor elicited on cross-examination of Claimant. However, the record indicates Claimant was previously assigned a lower bunk for seven years prior to, and for at least one year after, his fall.

We lack expert testimony as to interpretation of Claimants present condition and the nature and extent of his prior injuries due to the head trauma in 1985. No testimony was offered by Claimant as to his general health and abilities prior to his fall at Jacksonville. Ergo, we are unable to ascertain the measure of damages alleged for pain and suffering and permanency due to alleged memory loss, the wrist fracture, or mouth and dental injuries. (Claimant presented no evidence to support his allegations of memory loss or . other injury proximately caused by this fall nor of his alleged economic loss resulting from diminished mental acuity or injuries on a.permanent basis.) The record indicates all medical care was at IDOC expense.

As Claimant has failed to fulfill his burden of proof as to damages sustained and his underlying physical condition prior to the fall, a determination of proximate cause is not possible barring gross speculation and inference by the Court. We lack evidence as to pivotal facts necessary to informed legal analysis.

Claimant has failed to meet his burden of proof as to damages suffered and that the negligence of Respondent was the proximate cause of his injuries.

This claim is hereby denied and dismissed with prejudice.


text:
    (No. 98-CC-0601
    Gregory Agnew, Claimant, v. The State of Illinois, Respondent.

      Order filed March 31, 2000.

    Gregory Agnew, pro se.

    Jim E. Ryan, Attorney General (Mark E. McCullough, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Epstein, J.

Claimant, Gregory Agnew, an inmate of the Illinois Department of Corrections (IDOC), brought this claim seeking $80 in damages for lost personal property, which he alleges he suffered due to the negligence of IDOC.

This case is before us after trial before our Commissioner, Nancy W. Owen, and is now before us on the complaint of Gregory Agnew, the trial record, and the Commissioners recommendation.

The Claimant alleges that on November 16, 1996, he was an inmate at the Stateville Correctional Center when flooding occurred in his cell resulting in the destruction of his personal items consisting of an antenna, an Irish Spring soap, hair treatment, and Heritage lotion, allegedly worth $80. He testified that when he returned from a meal, IDOC officers informed him that the plumbing was flooding in his cell and that he would have to stay out while they made repairs.

There was no evidence presented as to the cause of the plumbing leak, other than that it apparently occurred in the plumbing chase behind Claimants cell. There was no evidence that the Claimant or other inmates had anything to do with causing the leak.

The Court has held that the State is responsible for damage caused by flooding in the absence of evidence that an inmate caused the flooding. The management of the plumbing facilities in the cells housing inmates of IDOC is clearly the responsibility of IDOC, and this Court has found that when damage has been caused by something under the Respondents management and the damages are such that, in the ordinary course of events, they would not have happened if the Respondent had exercised proper care, the incident itself affords reasonable evidence that the damages arose out of the Respondents want of due care. Jackson v. State (1992), 45 Ill. Ct. Cl. 314; Newsome v. State (1986), 38 Ill. Ct. Cl. 299.

In this case, there is damage in an IDOC facility under its control that was caused by flooding for which no other explanation has been given. We will, accordingly, find Respondent liable for the consequential damages.

The Claimant, of course, has the burden of proving his damages. Evidence was presented that there was some damage to commissary items from the flooding. The question is one of the amount of damage suffered. Claimants claim that he had not used any of the items for the two months before the flood lacks credibility, as does his valuation which appears excessive. Nevertheless, there plainly were items damaged by the flood waters.

Conclusion

For the reasons set forth above, the Court finds liability against the Respondent for damage to Claimant’s property in the amount of $30.

Accordingly, it is hereby ordered that Claimant Gregory Agnew be awarded the sum of $30 in full and complete satisfaction of this claim.


text:
    (No. 98-CC-1111
    Larry J. Rial, Claimant, v. The State of Illinois, Respondent.

      Order filed January 12, 2000.

    Larry J. Rial, pro se.

    Jim E. Ryan, Attorney General (Randall C. Stauffer, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, C.J.

This is a claim for loss of property pursuant to the Illinois Court of Claims Act (705 ILCS 505/8(c)). The Claimant alleges that on June 22, 1995, his property was lost or destroyed while he and other inmates were being moved from one cell house to another following the installation of an intercom system in their cells at Stateville Correctional Center. The Claimant seeks $194.70 in damages as the result of the loss of his property, $50 for costs of litigation and an order for the Respondent to allow the Claimant to purchase replacement property.

A hearing was held before Commissioner Stephen R. Clark on June 24, 1999. Evidence at the hearing consisted of the testimony of the Claimant. The Respondent filed a departmental report that included personal property inventories and permits. Through a request for admission, the Claimant presented another personal property inventory and receipts. No briefs were filed.

The Claimant testified that on or about June 22, 1996, he and other inmates in his cell block were moved, under the supervision of corrections officers, to other cells so that the State could install intercoms in the cells. The Claimant said he could not move all of his property at once, so he had to make more than one trip. He said that during the move, two boxes of his property were missing. The Claimant stated that he reported the property missing and later was informed by an officer from Internal Affairs that the property was found and would be returned to him. The property was not returned. No personal property inventories were made during the move.

According to the personal property inventory and receipts submitted by the Claimant and the personal property permits submitted by Respondent, the Claimant owned the following property lost during the move: headphones, beard trimmer, patchcords, mirror, radio, stapler, extension cord, leather briefcase, belt and gloves. The receipts and values placed on the property by the Claimant show the value of those items to be $157.04.

The Respondent offered no evidence beyond the departmental report.

We have held that the State has a duty to exercise reasonable care to safeguard and return an inmates property when it takes actual physical possession of such property. (Harris v. State (1994), 46 Ill. Ct. Cl. 190; Gammons v. State (1981), 35 Ill. Ct. Cl. 271; Doubling v. State (1976), 32 Ill. Ct. Cl. 1.) Furthermore, the loss of bailed property while in the possession of a bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. Harris, 46 Ill. Ct. Cl. at 193.

In the instant case, the Claimant has shown that the Respondent was in actual physical possession of his property. The property was in the custody of the Department when the Claimant was transferred. Therefore, there is a presumption of negligence by the Respondent which requires the Respondent to rebut this presumption by evidence of due care.

In this case, although the inmates were not moved as the result of an emergency, the Claimant was forced to leave some of his property behind during the move that was required by the prison. He was unable to carry all of his property at once, and the Respondent did not provide him with the means to do so. He left his property in the care of the Respondent, which then had a duty to exercise reasonable care to safeguard the Claimants property. Respondent has failed to rebut the presumption of negligence.

Regarding the value to be assigned to the lost and destroyed property, this Court has granted awards in cases where, although there were no receipts available, the Claimants testimony regarding the value of property was credible enough to make an award. (Seats v. State (1994), 46 Ill. Ct. Cl. 418.) In Seats, this Court stated that values as established by the prisoners own testimony are not speculative, but are to be weighted by the Court in conjunction with all the evidence before it, including the credibility and demeanor of the parties. (Id. at 420.) In the instant case, the Respondent put on no evidence to rebut the values listed in the Claimants bill of particulars. Furthermore, the prices listed appear to be reasonable and not inflated.

In some cases, this Court has awarded Claimants the full value of their property in bailment cases without allowing for depreciation, while in other cases, the Court has reduced the claimed amount by depreciation, usually amounting to one-third of the value of the property.

“When declining to consider depreciation, the Court has pointed out that a prisoners situation is different from that of a civilian. When a prisoner loses an item, he must generally go to the commissary to purchase a replacement at the commissary’s prices, and due to a prisoner’s generally impoverished condition he often has to do without the lost item if not reimbursed adequately. An excessive assignment of depreciation effectively deprives the prisoner of his property. If the prisoner had a working television set when he was transferred, he would be entitled to a working television set when he arrives. If it does not work or is missing, he has nothing.” Seats, 46 Ill. Ct. Cl. at 419-420.

In this case, the rationale from Seats is applicable. To replace the lost items, the Claimant would have to pay commissary prices. Allowing for a deduction of depreciation would effectively deprive Claimant of his property. The value of these items is $157.04. Claimants requests for an order against Respondent and for costs are denied.

It is therefore ordered, adjudged and decreed that Claimant is awarded $157.04 (one hundred fifty-seven and 04/100 dollars) in full and complete satisfaction of this claim.


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    (No. 98-CC-2015
    Bobby R. Green, Claimant, v. The State of Illinois, Respondent.

      Order filed December 14, 1999.

    Bobby R. Green, pro se.

    Jim E. Ryan, Attorney General (Randall C. Stauffer, Assistant Attorney General, of counsel), for Respondent.
   ORDER

JANN, J.

This cause comes on to be heard on the motion of Respondents to dismiss the claim herein and it appearing to the Court that Claimant has received due notice and filed a response. The Court being fully advised in the premises finds that:

Respondents motion is based upon Claimants failure to file within two years of the date he alleged a forged P-96 form for payment of trust funds to a third party was processed by Respondents agents. The Clerks docket indicates that on October 17,1997, the “complaint [was] returned — incomplete.” We lack copies of the original filing in the submissions of either party. There is no indication that the complaint was stamped “filed” by the Clerk on October 17,1997. Claimant refiled on November 7,1997, beyond the two year statute of limitations. The Court made inquiiy of the Clerks office and found the Clerks file showed Claimant’s complaint was received on October 17, 1997, without the required filing fee or an application to sue in forma pauperis. The complaint was not accepted as filed and was returned to Claimant. As set forth in Gaynor v. State (1993), 46 Ill. Ct. Cl. 381, the filing fee is required by both rule and statute.

Based upon the foregoing, we find Claimant’s complaint was filed more than two years after the alleged cause of action arose and is barred from further consideration by this Court. Claimant’s argument that the statute of limitations is tolled during the pendency of institutional grievance procedures to comply with exhaustion of remedies is simply incorrect and contrary to Court rules and precedent.

This cause is hereby dismissed with prejudice.


text:
    (No. 98-CC-2601
    Decatur Earthmover Credit Union, Claimant, v. George H. Ryan, Secretary of State, Respondent.

      Opinion filed August 30, 1999.

      Supplemental opinion filed May 9, 2000.

    Kehart, Shafter, Webber (Mark D. Gibson, of counsel), for Claimant.
    Jim E. Ryan, Attorney General (Steven L. Matrisch, Assistant Attorney General, of counsel), for Respondent.
   OPINION ON MOTIONS TO DISMISS

Epstein, J.

This $14,088.85 negligence claim against the Respondents Secretary of State (the Secretary or SOS) is before us on the Respondents second motion to dismiss, and on one dangling issue from its first motion to dismiss.

Respondents current motion asserts the Secretary’s immunity under section 3 — 114(i) of the Illinois Vehicle Code (625 ILCS 5/3 — 114(i)) as a bar to liability arising from, inter alia, “a [motor vehicle] certificate of title issued in error [that] is subsequently used to commit a fraudulent act.” This claim presents a statutory construction issue of first impression: whether the section 3 — 114(i) immunity applies generally to all erroneous title certificates or whether this immunity applies only to erroneous title certificates issued pursuant to section 3 — 114 which deals with “Transfer by operation of law.”

Also before us is one remaining issue raised in the Respondent’s first motion to dismiss that was not resolved by the filing of Claimant’s first amended complaint: whether the Claimant fully exhausted its alternative sources of recovery for its loss, as required by section 25 of the Court of Claims Act. (705 ILCS 505/25.) The circumstances of this case present a novel issue in this Court: the burden of proof when a Claimant seeks to justify its failure to pursue a seemingly liable third party as frivolous based on that party’s subsequent bankruptcy discharge, where there was a colorable possibility that the particular liability may not have been dischargeable due to the debtor's fraud if the Claimant had timely objected in the bankruptcy proceedings and had proven fraud by the bankrupt debtor.

Nature of the Claim

Claimant alleges that the Secretary negligently issued a new certificate of title to a motor vehicle that should have, but did not, show the Claimant’s unreleased hen of record, and that enabled the owner to sell the vehicle to an innocent purchaser without notice of the lien and without discharging the lien, thereby depriving the Claimant lender of its collateral.

The Facts as Alleged

According to the amended complaint, which we take as true for purposes of the motion to dismiss: In late 1994, Claimant made a secured $24,125 car loan to Richard Fore on a. 1991 Chevrolet Corvette. Claimant perfected a hen on the Corvette that was noted on Fore’s certificate of title. In 1995, Fore legally changed his name to LeFeur and applied for a replacement certificate to reflect his new name. The SOS issued the new title without showing Claimant’s hen, although it was affirmatively shown on the original certificate and was a matter of record. Fore/ LeFeur did not present a purported release of lien to the SOS with his application for a new tide, but his application also failed to state that there was a lien on the vehicle. With $14,088.85 outstanding on Fore/LeFeur’s secured debt to the Claimant, he sold the Corvette to a bona fide purchaser without notice of the Claimant’s lien.

According to Claimant’s later pleading (memorandum in opposition to motion to dismiss, at 2), Mr. LeFeur later filed bankruptcy and received a discharge.

The Section 3 — 114(i) Immunity Issue

Against the Claimant’s negligence claim, Respondent asserts the immunity granted by section 3 — 114(i) of the Illinois Vehicle Code (625 ILCS 5/3 — 114(i)), which provides:

“(i) The Secretary of State shall not be held civilly or criminally liable to any person because any purported transferor may not have had the power or authority to make a transfer of any interest in any vehicle or because a certificate of title issued in error is subsequently used to commit a fraudulent act.”

As a threshold matter, we agree with the Respondent, and the Claimant does not dispute, that this statutory immunity applies to the facts of this case. However, there are two distinct clauses in the section 3 — 114 immunity for incorrect title certificates: the first clause is triggered by an unauthorized title transferor; the second clause is triggered by later fraudulent use of an erroneous title certificate. We presume that the immunities cover damages that are caused by the two specified kinds of occurrences.

The second clause clearly covers the instant facts. First, there is no dispute that the new title certificate on Fore/LeFeurs Corvette was “issued in error” insofar as it failed to show Claimant’s lien, which was a matter of record. Second, Claimant alleges that Fore/LeFeurs sale of the vehicle without satisfying the lien or disclosing it to the purchaser was a “fraudulent act” as to the Claimant. Indeed, these circumstances fall precisely within the apparent purpose of this immunity clause.

However, the applicability of the first clause, triggered by a lack of authority of the “transferor * * e to make a transfer of any interest” in the Corvette, is dubious. On one hand, there is no suggestion that Mr. Fore/LeFeur was not the title owner or lacked authority to transfer the title subject to the hen. On the other hand, although it is clear that he did not have the “power or authority” unilaterally to extinguish the lender’s lien of record (which is equivalent to a transfer), it is not alleged that Fore/LeFeur himself did anything to transfer or extinguish the lien. On this record at this motion stage, we cannot assume that there was a “transfer” of any lien “interest” in the vehicle by any “transferor” within the ambit of the statute. See, however, Glenview State Bank v. State (1982), 35 Ill. Ct. Cl. 143, applying, but not discussing, the first immunity clause of section 3 — 114.

Despite this facial applicability of at least one of the statutory immunities, the Claimant contends that the section 3 — 114(i) immunities do not apply to this claim because the erroneous certificate in this case was not issued as a result of a transfer by operation of law. Claimant contends that the section 3 — 114(i) immunity is limited to section 3 — 114 title transfers, i.e., to certificates issued to confirm or implement transfers of operation of law, and thus does not apply to certificates issued pursuant to other sections of the Vehicle Code such as was effected in this case by Fore/LeFeurs application for a new certificate to reflect his changed name.

Claimants statutory construction argument rests on the legislative intent of this immunity statute, as inferred from its context in section 3 — 114 of the Vehicle Code. Claimant contends that the scope of the section 3— 114(i) immunity is limited to the scope of section 3— 114, entitled “Transfer by operation of law,” which deals with transfers directed by courts and persons other than the named title-holder. Claimant points out that this immunity clause was not enacted as a free-standing section of the Vehicle Code, which would suggest general applicability, but instead was legislatively placed within section 3 — 114. Claimant observes that there are at least two other sections of the Vehicle Code that deal with title transfers — section 3 — 112 (“Transfer”) and section 3 — 113 (“Transfer to and from dealer; records.”) — and that those sections contain no immunity provisions. Claimant concludes that this statutory structure manifests a legislative intent to grant the Secretary immunity only as to erroneous title certificates issued to implement a transfer by operation of law.

Neither party has discussed the case law. This Court has not been receptive to claims based on erroneous vehicle titles. In Glenview State Bank v. State (1982), 35 111. Ct. Cl. 143, the Court rejected a lienholders claim much like this one, relying on the statutory immunity which was then section 3 — 114(h) and then contained only the first “unauthorized transferor” clause, and also citing Wagoner v. State (1971), 27 Ill. Ct. Cl. 127.

In Wagoner, this Court dismissed a similar claim, holding that “the Legislature did not intend that the State * * * compensate persons for any loss they may have sustained by reason of their relying upon * * * [a] Certificate of Title” (27 Ill. Ct. Cl. at 129), a questionable holding that rejected liability on the basis of inferred legislative intent without reference to statutory immunities or any textual statutory basis. In light of the General Assembly’s enactment of specific immunities for the Secretary’s issuance of erroneous vehicle titles, which reflects an assumption if not a determination that liability would otherwise he, Wagoners rationale is highly dubious.

Despite the recurring claims in vehicle title error cases, this Court has never considered the scope-of-immunity argument advanced here by this Claimant. We do so now.

Claimant’s construction of the section 3 — 114 immunity finds both support and opposition in the legislative history of this statute, which surprisingly has not been reviewed by the parties. Because the Claimant’s argument is predicated on a claimed interaction of statutory text— i.e., the immunity language itself and the narrow subject of the statutory section in which it is contained — we consider the issue to be sufficiently akin to an ambiguity in the statute to open the door to consideration of legislative history to amplify the ultimate issue of the legislative intent.

The immunity provision originated as part of subsection (a) of section 3 — 114 of the Vehicle Code in its original 1970 enactment, and was later moved to the end of the section as a separate subsection (e). (P.A. 77 — 641 (1971).) Subsection (e) was later renumbered and wound up as subsection (i) as other paragraphs were inserted in section 3 — 114. The initial form of the section 3 — 114 immunity, as noted above, was limited to what is now the first unauthorized transferor clause.

The second immunity clause of the present section 3 — 114(i) was added by the General Assembly in 1983. (P.A. 83-1362, eff. Jan. 1, 1984.) No language in section 3 — 114, however, has ever narrowed the scope of either immunity clause from that provided by their own terms, and section 3 — 114 has never contained language limiting its immunity provision(s) to title certificates issued pursuant to section 3 — 114 “operation of law” title transfers. Claimant’s context argument, accordingly, is purely one of inferred legislative intent.

As Claimant emphasizes, the terms of the initial immunity clause as well as its original placement in section 3 — 114(a) support the view that the immunity was intended by the General Assembly to cover only titles issued pursuant to “transfers by operation of law” under section 3 — 114. First, that section dealt only with transfers arising by operation of law, which is consistent with the view that the placement of the immunity clause in section 3 — 114, rather than creating a separate general immunity section, reflects an intended narrower scope. Second, because the transactions covered by section 3— 114 all involve a new title certificate requested by someone other than the named title-owner (e.g., a court, a lienholder, a probate executor or lawyer, a joint tenant), the possibility of an unauthorized transfer — the specific circumstance addressed by the initial immunity clause— arises peculiarly under this section of the Vehicle Code. This heightened exposure to “unauthorized” transferors and consequent title errors lends a straightforward reason for an inferred legislative decision to grant immunity in this circumstance but not generally.

The legislative history of the second immunity clause of section 3 — 114(i) is quite different. The second clause did not originate with the Vehicle Code, or in section 3— 114(a), but was added to section 3 — 114(i) in 1983. (P.A. 83-449, eff. Jan. 1, 1984.) At that time, section 3 — 114 still addressed third-party transactions implementing title transfers by operation of law (or required by law, e.g., salvage titles, then under section 3 — 114(f).) This tends to support Claimants contextual argument as to the second immunity clause, paralleling the contextual inference for the original immunity clause. As observed above, however, there is no textual indication of such a limitation for either immunity clause in the statute.

More acutely, however, the terms of the second immunity clause, unlike the terms of the first clause, do not relate to the particular situation (transfers “by operation of law”) that is otherwise addressed by section 3 — 114. Unlike the original immunity grant (for title certificates spawned by unauthorized transferors), the second clause (for fraudulent use of erroneous titles after issuance) deals with a general circumstance that has no apparent nexus to the kind of transaction that generated the erroneous title.

We perceive no reason why subsequent fraudulent use of an incorrect title certificate is, or might be expected to be, more prevalent depending on whether the erroneous title certificate was an original title, or a voluntary transferred title, or a title transferred by operation of law under the section 3 — 114 procedures. Particularly in cases of omitted lien notations, as in this case and in the majority of vehicle title claims that have come to this Court, there is no suggestion of a causal connection to prior transfers “by operation of law” under section 3 — 114. Neither party has shown or suggested any historical difference in the occurrence of title errors — especially omissions of liens — in different kinds of vehicle title transactions. Moreover, there is no indication that the legislature might have assumed such a differential. Accordingly, we find no supporting reason for the General Assembly to have intended a limited scope to the general language of the second immunity clause— for fraudulent use of erroneous titles — when it added it to the existing immunity paragraph of section 3 — 114(i) of the Vehicle Code.

In the absence of a nexus between the effect of the second immunity clause and the subject of the section, the legislative placement of the second clause in section 3 — 114(i) does not carry much of a substantive inference. That placement is as much explained by legislative drafting convenience — placing the new immunity clause together with the pre-existing immunity clause — as it is by inferred substantive intent.

On the other hand, the plain language of the second immunity clause indicates a general applicability to all erroneous vehicle titles. Not only is there no limiting language anywhere in the text of section 3 — 114(1), as observed above, but the language of the second immunity clause is unqualifiedly general. The statute speaks of “a certificate * * * issued in error # * used to commit a fraudulent act.” [Emphasis ours.] This language on its face encompasses any erroneous certificate without regard to how or when or why it was issued.

We note that the “fraudulent use” immunity clause is broader on its face than the scope of section 3 — 114 in which this immunity clause is embedded. That fact, however, does not itself generate an inference that the context limits the broader range of the added language. If there were a conflict between the general application of the added language and the pre-existing terms of the statute, such an argument might carry weight; in such a case, there would at least be a statutory inconsistency to be resolved by judicial construction. But where, as here, there is no conflict, and no inconsistency — and indeed, no connection at all — between the added clause and the pre-existing provisions of section 3 — 114, we find no basis on the face of the statute for not giving the added clause full effect in accordance with the plain meaning of its terms.

We are bound to follow the plain meaning of statutory words and phrases as the primary indicator of legislative intent absent a persuasive textual indication of a different legislative intent or, in the case of an ambiguity or conflict, absent a historical or legislative record of a contrary intent. Plainly, the burden of persuasion is on the party urging a construction other than the plain meaning of the statutory language, which in this case is the Claimant.

Thus far in the analysis, Claimant has not carried that burden: Claimants argument that the General Assembly manifested its intent to limit these immunities — particularly the second immunity provision — to title certificates issued under section 3 — 114 finds no support in the text of the statute (which is facially contrary to Claimant’s position) and finds no persuasive support from the legislative history of the statutory immunity clauses, particularly the second clause added in 1983. This leaves only the specific legislative record of the second immunity clause — in the 1983 amendment to section 3 — 114(i)—as potential pertinent input to our interpretative decision.

That record, however, is largely barren of indication of the legislatures intent. Public Act 83 — 449, which was Senate Bill 1121 in the Eighty-Third General Assembly, and which inter alia amended section 3 — 114(i) to add the second immunity clause (P.A. 83 — 449, section 1) was a lengthy and wide-ranging enactment that made numerous amendments to the Illinois Vehicle Code (as well as to one other Act), and covered a number of issues. The only aspect of P.A. 83 — 449 that relates to the Secretary’s liability or immunity is the change it effected to section 3— 114, in which it only amended paragraph (i) and only to insert the second immunity clause: # or because a certificate of title issued in error is subsequently used to commit a fraudulent act.” It made no other changes in section 3 — 114. Our research indicates that the legislation was uncontroversial (and was presumably advocated or approved by the Secretary of State’s office), as it was passed without debate as an “agreed bill” in both houses. Thus, except for the inference, if any, arising on the face of the enactment itself, there is no legislative gloss of record for us to consult.

The only pertinent intent reflected on the face of P.A. 83 — 449 was the intent to grant a broader immunity to the Secretary for liability, arising from fraudulent use of erroneous vehicle title certificates. Although that does not refute Claimant’s argument, neither does it provide any support for it.

We conclude that we are bound to apply the plain meaning of the text of the second immunity clause, as it was enacted by the General Assembly in 1983. We are unpersuaded that the legislature intended to limit the scope of this expanded immunity for fraudulently used title certificates to only some title certificates. Claimants contextual argument is far from baseless. But after careful consideration of the language and history and draftsmanship of these provisions, this contextual argument must be rejected in favor of the plain meaning of the statutory words as enacted by the legislature.

Under section 3 — 114(i) of the Vehicle Code, the Secretary, and hence the Respondent, is immune from liability for negligent issuance of the erroneous vehicle title certificate in issue, based on the later fraudulent use of that certificate by Fore/LeFeur to avoid Claimants lien and deprive it of its collateral. The Respondents liability, if any, is barred and Respondents motion to dismiss must be granted.

The Exhaustion of Alternative Source-Bankruptcy Issue

Respondent asserts in its first dismissal motion that the Claimant failed to exhaust an alternate source of recovery of its losses — Mr. Fore/LeFeur — as required by the Court of Claims Act (705 ILCS 505/25), and that this claim should be dismissed for this reason. We address this issue, despite our holding on the immunity issue, because of the recurring importance of bankruptcy discharges to failure-to-exhaust defenses in this Court, and because Claimants failure to exhaust is a second basis for dismissal.

Respondent asserts that Fore/LeFeur s fraudulent sale of the Corvette to a bona fide purchaser was the cause of the Claimants loss and that LeFeur is liable to the Claimant, and must be pursued to exhaustion. To this exhaustion defense, Claimant asserts Mr. LeFeur s bankruptcy. Claimant’s theory is that Mr. LeFeur’s bankruptcy discharge extinguished his liability to the Claimant, thereby barring legal pursuit of LeFeur for Claimants loss. Respondent has not replied to this point.

The Court agrees that a bankruptcy discharge of a liability generally excuses a Claimant from pursuing that bankrupt debtor on that liability as an alternative source under section 25 of the Court of Claims Act and under this Courts implementing Rule (74 Ill. Admin. Code section 790.60) because there is no longer a liability to pursue. This conclusion is compelled by our precedents construing section 25 alternate source exhaustion to require reasonable rather than absolute or formalistic exhaustion. (See, e.g., Davis v. State (1992), 49 Ill. Ct. Cl. 93, and cases cited therein.) This conclusion, however, does not resolve the exhaustion issue in this case because of the apparent fraud of the bankrupt debtor, Mr. LeFeur.

The unusual twist in this case is that Mr. LeFeur s bankruptcy may or may not have discharged his loan liability or his apparent tort liability to this Claimant, and even if those liabilities were in fact discharged in his bankruptcy proceedings, they may well not have been discharged if the Claimant had timely objected to their discharge in the bankruptcy court and had proven fraud by Mr. LeFeur.

The facts alleged in this case assert a fraud by Fore/ LeFeur s sale of the vehicle without paying or preserving the lien, which Fore/LeFeur knew had not been discharged. Although this Court cannot adjudicate that fraud issue on the current record, we observe that the issue has been raised and that, under the Bankruptcy Code, a fraudulent liability is non-dischargeable, although the discharge must be timely objected to in the bankruptcy proceedings and must be adjudicated by the bankruptcy court. 11 U.S.C. 543.

The record before us does not disclose whether or not LeFeurs liability to the Claimant was in fact discharged (no copy of the bankruptcy courts order of discharge has been presented), or whether or not the Claimant objected to discharge of LeFeurs liability to it, or, if Claimant did object, whether it pursued its objection to discharge to exhaustion. However, it is clear that the Claimant has the burden of proving its exhaustion, and that in these circumstances, where the bankruptcy discharge is proffered by the Claimant, it must prove (i) the discharge of the alternative source’s (LeFeurs) liability, and (ii) Claimant’s exhaustion of reasonable efforts to object to that discharge on apparent fraud grounds.

Claimant has failed to carry these burdens. The Claimant has not even proved up the bankruptcy discharge of Mr. LeFeur, and has not addressed the dischargeability issue. On the current record, Claimant’s failure to exhaust is a second basis for dismissal of this claim.

Conclusion

For the foregoing reasons, it is hereby ordered:

1. Respondent’s motion to dismiss this claim as barred by the immunity of the Secretary of State under section 3 — 114(i) is granted;

2. Respondent’s first motion to dismiss for failure to exhaust its remedies against Mr. Fore/LeFeur is granted;

3. This claim is dismissed with prejudice and forever barred.

SUPPLEMENTAL OPINION ON REHEARING

Epstein, J.

Claimant petitioned for rehearing, and asks us to reconsider both issues that were decided in our initial decision:

(1) the statutory construction issue, as to the scope of applicability of the second immunity clause of section 3 — 114(i) of the Motor Vehicle Code. 625 ILCS 3 — 114(i);

(2) the exhaustion of alternative sources issue, under section 25 of the Court of Claims Act (705 ILCS 505/25), as applied to Claimants non-pursuit of a seemingly liable tortfeasor who filed bankruptcy and obtained a discharge but whose liability to the Claimant was arguably non-dis-chargeable due to the tortfeasors fraud.

The Respondent did not respond. Because the Claimants petition raises substantial issues that were not adequately addressed by the Court, we grant rehearing and issue this supplemental opinion and order.

Statutoiy Construction:

The Negative Pregnant Inference

The Respondents liability for this claim turns on the applicability or inapplicability of the second immunity clause of section 3 — 114(i): “The Secretary of State shall not be held civilly * * * liable * * * because a certificate of title issued in error is subsequently used to commit a fraudulent act.”

In our initial opinion, based largely on the legislative history and draftsmanship, we rejected Claimants contextual argument that the applicability of that immunity is limited by the prior scope of section 3 — 114, into which that immunity clause was selectively placed by the legislature (i.e. , Claimant’s contention that this immunity language is applicable only to title certificates issued to implement ownership “Transfer by operation of law,” which was the scope and title of the section when this immunity clause was added.)

On rehearing, Claimant forcefully renews its contextual or selective enactment construction argument, fortified by a new label and citations to opinions of the U.S. Supreme Court. In its petition for rehearing (paragraph 3(d), at 3), Claimant advances the

"* * * well established rule of statutory construction which states ‘an express statutory requirement here, contrasted with statutory silence there, shows an intent to confine the requirement to the specified instance.’ Field v. Mans (1995), 516 U.S. 59, 67, citing Gozlon-Peretz v. United States (1991), 498 U.S. 395, 404 (‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion’).”

Claimant seeks, with some persuasion, to apply this “apparent negative pregnant” rule of construction (Justice Souter in Fields v. Mans, 516 U.S. at 67) to the second immunity clause of section 3 — 114(i), which the General Assembly added to that section but — as Claimant emphasizes- — not to other sections of the Vehicle Code that deal with issuance of title certificates in other circumstances.

We first observe that the Supreme Court rejected the negative pregnant inference in Field v. Mans, supra, on which the Claimant relies, just as this Court rejected that contextual inference in this case. As in Field, we found the inference was outweighed by salient factors in the legislative history and style of the disputed statute that persuaded us of a different (here broader) legislative intent than that “implied” by the negative pregnant.

Still, we agree that the negative pregnant inference argument can be a strong and even decisive principle of construction, and we concur with Claimant that the principle applies equally to all kinds of statutory provisions. We do not, however, believe that it is inherently compelling, or that it has great force in statutory amendment contexts like that of this case.

The apparent negative pregnant inference of legislative intent arises from selective legislative silence or selective legislating (adding, amending or repealing text) among multiple statutory provisions. That can sometimes be viewed as lack of comprehensive legislative draftsmanship, rather than as reflecting intent. On the other hand, negative inference arising from selective legislating among statutory texts is most powerful within a single enactment — i.e., a selective act of legislating done at one time by a legislative body in one Act.

That was the context in the federal Anti-Drug Abuse Act of 1986 (the ADAA) that was reviewed in Gozlon-Peretz v. United States (1991), 498 U.S. 395, as to specific delayed effective date provisions contained in some but not all sections of the ADAA. That was also the case in Russelo.

This case, unlike Gozlon-Peretz and Russelo but like Field, involves a discrete subsequent amendment to one section of a pre-existing Act rather than a simultaneous legislative action involving multiple provisions of a single Act. In this context, we consider the doctrine as persuasive — as it impacts the resulting text of the larger amended statute — but not dispositive.

Claimants argument is cogent and in a different application might carry the day. But not in the face of the legislative history and style of this statute. Having reconsidered the legislative history again, the Court adheres to its conclusion that the clear general language of the immunity clause, placed into the one section of the Vehicle Code that then addressed, inter alia, immunity for erroneous vehicle titles, prevails over the apparent negative pregnant inference arising out of the legislative failure to repeat the added immunity clause in other sections of the Vehicle Code.

Construction of section 3 — 114(i):

The Rule of Narrow Construction of Statutory Immunities

In a second argument forcefully advanced on rehearing, the Claimant urges the well-settled rule of construction favoring narrow interpretation of statutoiy immunities as being contrary to the common law. We recognize that this longstanding judicial bias against statutory immunization of common law liabilities runs deep in Illinois law (e.g., Molitor v. Kaneland Community School Dist. No. 302 (1959), 18 Ill. 2d 11.) We would apply that narrow construction doctrine without hesitation if it were applicable here. It is not, for two reasons.

First, the issue here is not an ambiguity of statutory immunity language, which is susceptible of being read broadly or narrowly. In that kind of case, the doctrine of narrow construction of immunity grants would likely provide the rule of decision. In this case the immunity language is perfectly general and unambiguous. The interpretation dispute here concerns not the language but the editorial placement of that language as an indicator of legislative intent.

Second, the liability being immunized here is a State liability that did not exist in our Illinois common law, at least not since the Constitution of 1870, which constitutionalized the doctrine of sovereign immunity in Illinois (1870 Ill. Const. 1870, Art. IV, section 26), and arguably since statehood in 1818, as the liability of the State of Illinois has always been statutory rather than a common law right. See, Spiegel, The Illinois Court of Claims: A Study of State Liability, at 60-62 (U. Ill. Press, 1962), reviewing inter alia, the three statutes in effect from 1819-1870 that authorized claims against the State by suit against the Auditor of Public Accounts.

There is simply no established common law State liability in Illinois for a State officers or agency’s issuance of erroneous vehicle title documents. Thus the common law premise underlying the narrow construction rule has little if any application here.

The section 25 Exhaustion of Alternative Sources Requirement: Pursuit of a Tortfeasor into Bankruptcy Court

In our initial opinion, we concluded that the Claimant failed to show that it had fully exhausted its damages claim against Mr. LeFeur — or to show “exhaustion of reasonable efforts” to pursue Mr. LeFeur — who sold the Claimant’s collateral (the liened vehicle) to a bona fide purchaser, thus committing a conversion of the Claimant’s property. We found, inter alia, that Claimant’s exhaustion defense — that pursuit of the tortfeasing LeFeur would be futile due to the bankruptcy discharge of his debts — was, on the current record, inadequate; that Claimant had not shown that a challenge to Mr. LeFeur’s discharge in the bankruptcy court, based on his fraudulent conversion, would have been futile, and therefore Claimant was obliged to pursue that objection to discharge which it did not do, thereby failing to meet the mandate of section 25 of our statute.

The issue, of course, is the extent to which our exhaustion requirement mandates a litigant in this Court to have pursued a source of payment that filed bankruptcy.

On rehearing, Claimant contends that we applied the wrong bankruptcy law standard for barring a discharge of a debtor for the kind of tortious conduct involved here, and that we therefore imposed an erroneous — and excessive — burden on the Claimant to pursue Mr. LeFeur into bankruptcy court, as a section 25 exhaustion condition of obtaining relief in this Court. Claimant contends that under the applicable standards under section 523 of the Bankruptcy Code (11 U.S.C. 523), it would have been futile and frivolous for it to contest Mr. LeFeur s discharge from his liability to the Claimant, and hence its exhaustion duty as to Mr. LeFeur was extinguished along with Mr. LeFeur s liability.

There is merit to the Claimants argument, under section 523 of the Bankruptcy Code, although this issue appears to be governed by section 523(a)(6) (addressing “willful and malicious injury by the debtor to another entity or to the property of another entity”) rather than by section 523(a)(2) (pertaining to fraudulent “obtaining of money through an extension of credit”), which is emphasized by the Claimant. This case, on the current record, involves no allegations or suggestions of fraud by Mr. LeFeur in his original loan application to the Claimant credit union; rather it involves a conversion of the Claimants collateral long after the loan was made. This situation is governed by section 523(a)(6). See, Field v. Mans (1995), 516 U.S. 59, 73-74; In re Krulik, 6 B.R. 443 (Bk. M.D. Tenn. 1980); In re Long, 44 B.R. 300, 306-307 (Bk. D. Minn. 1983); In re Long, 774 F.2d 875 (8th Cir. 1985).

Under section 523(a)(6), as under its predecessor bankruptcy provisions, it has long been held, as Claimant now contends, that to preclude a discharge in bankruptcy due to a tortious conversion of a creditors property, “a heightened level of culpability must be found, going beyond recklessness and beyond intentional violation 9 * *.” (In re Long, 774 F.2d at 881.) As Justice Cardozo wrote long ago, applying virtually the same statutory bankruptcy language now contained in section 523(a)(6), and in a situation also involving conversion of a lenders vehicle collateral:

“The respondent contends that the petitioner was hable for a willful and malicious injury to the property of another as the result of the sale and conversion of the car {an Auburn sedan] in his possession. There is no doubt that an act of conversion, if willful and malicious, is an injury to property within the scope of this exception. 000 But a willful and malicious injury does not follow as of course from every act of conversion, without reference to the circumstances.
#66
Nothing in the judgment of the Illinois Appellate Court is at war with the exculpatory finding made upon the trial. ° ° Its only comment is that under the law of Illinois malice and wrongful intent are not necessary constituents of a cause of action in trover. This, of course, is true, but, though true, it is beside the mark. The discharge will prevail as against a showing of conversion without aggravated features.” Davis v. Aetna Acceptance Co. (1934), 293 U.S. 328, 331-333.

It is thus clear that Mr. LeFeurs fraudulent act of conversion, without more — i.e., without aggravation “going beyond recklessness and beyond intentional violation” (In re Long, supra) or without “willfulness and malice” (section 523(a)(6); Davis, supra) — is not enough to bar a discharge.

Claimant is therefore correct in its assertion that in order for it to have successfully pursued and exhausted Mr. LeFeurs liability to it for conversion of the collateral, it would have had to prove more than mere fraud and more than mere conversion in the bankruptcy court proceedings.

Applying this section 523(a)(6) bankruptcy standard, we find that the current record in this case, which has come to us on the Respondents motions to dismiss, is inadequate as to the circumstances surrounding Mr. LeFeurs conversion/sale of the liened automobile for this Court to make any finding as to the efficacy of the Claimants effort to prevent a discharge, had it sought to do so. Thus we cannot now determine whether or not it would have been futile for this Claimant to pursue Mr. LeFeurs liability into bankruptcy court or whether the circumstances could support a finding of aggravating conduct that would bar a discharge and preserve his liability to the Claimant.

Accordingly, the Court will reverse its prior finding and will deny the Respondent’s motion to dismiss on this exhaustion ground. We would remit this issue for trial if this case were to be tried, and if the Respondent wished to maintain exhaustion as a defense to this claim.

However, our conclusion, renewed in this supplemental opinion, that the Secretary is immune from liability for Mr. LeFeurs conversion that he effected using an “erroneous title certificate” requires that we reaffirm our dismissal of this claim for that reason.

Conclusion

For the foregoing reasons, it is hereby ordered:

1. The Court’s order of August 30, 1999 granting Respondent’s motion to dismiss for failure to ex-. haust remedies against Mr. LeFeur is vacated, and said motion is denied;

2. The Court’s orders of August 30,1999 granting Respondent’s motion to dismiss this claim as barred by the immunity of the Secretary of State under section 3 — 114(i) of the Vehicle Code, and dismissing this claim, is reaffirmed.

       We recognize that this clause is arguably ambiguous. For present purposes, we assume that the phrase "of any interest” in section 3 — 114(1) encompasses an unauthorized transfer of a partial interest in a vehicle, and we note the Vehicle Code refers to the granting of a security interest (lien) as a form of transfer of an interest in the vehicle. See section 3 — 112(a). 625ILCS 503 — 112(a).

        Glenview State Bank also cited Bank of Lyons v. State (1967), 26 Ill. Ct. Cl. 104 and Blake v. State (1951), 21 Ill. Ct. Cl. 141, which both rejected claims on erroneous vehicle titles, but not due to the statutory immunity.

       Laws of Illinois, 1819, at 184; Revised Code of Laws of Illinois, 1829, at 171; and Revised Statutes of Illinois, 1845, at 394, 464. The 1829 and 1945 statutes made the judgment subject to review and appropriation by the General Assembly. That formulation — adjudication subject to legislative appropriation — has thus been the Illinois system for State liability under four state constitutions for over 170 years.

       “Subdivision 2 [of former 11 U.S.C. 35] excludes from the release ‘liabilities for ° ° " willful and malicious injury to the person or property of another.’” Davis, infra, 293 U.S. at 331.


text:
    (No. 98-CC-2716
    Department of Professional Regulation Official Advance Funds, Claimant, v. The State of Illinois, Respondent.

      Order filed on November 1, 1999.

    Paul C. Cation, for Claimant.
    Jim E. Ryan, Attorney General, for Respondent.
   ORDER

JANN, J.

The Department of Professional Regulation (DPR) filed this claim against itself seeking to move $27.50 from an appropriation to an advance funds account. Although no explanation was provided, an advance funds account appears to be similar to a petty cash fund. Apparently the agency did not draw down the appropriated funds before the funds had lapsed. Although the concept of an agency suing itself may appear incongruous, the Court indulges such actions for the agency’s bookkeeping and audit concerns.

DPR filed the claim in December of 1997. After waiting for DPR to respond to its claim for ten months and receiving nothing but the general denial deemed filed by our Rule 790.100 (74 Ill. Admin. Code 790.100), the Court assigned the claim to one of its commissioners for the purpose of conducting a trial and to allow DPR to present evidence against itself and allow DPR an opportunity to refute such evidence.

The claim was first set for a hearing to take place January 21, 1999. The Commissioner reported that DPR failed to appear to prosecute the case but was present by the Office of the Attorney General to defend itself. The same occurred again on April 22, 1999, and on May 20, 1999. We note that the person who filed the claim on behalf of DPR gave an address which was only one floor beneath where the hearings were scheduled to take place.

Because no one from DPR is concerned enough to walk up a flight of stairs to present this $27.50 claim and because DPR has not been sufficiently concerned during the nearly two years this claim has been pending to file anything in writing to indicate DPR either agrees or disagrees with itself, pursuant to our Rule 790.260 (74 Ill. Admin. Code 790.260), it is hereby ordered that this claim be, and hereby is, dismissed.


author: Hess, J. Hess, J.

text:
    (No. 98-CC-3032
    Peter D. Hansen, Claimant, v. The State of Illinois, Respondent.

      Order filed April 27, 1999.

      Order on petition for rehearing filed December 10, 1999.

    Razzano & Kinzer (Joseph R. Yurgine, PC., of counsel), for Claimant.
    Jim E. Ryan, Attorney General (Jacqueline K. Williams, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Hess, J.

Refore this Court is Respondents motion to dismiss. Respondent filed this motion on February 25, 1999, and as of March 27, 1999, Claimant has failed to file a response. 74 Ill. Adm. Code 790.200(b) requires any objection to a motion to be filed with the Clerk of the Court within 15 days; therefore, any response by Claimant is denied and will not be considered.

Claimant suffered injuries because of an automobüe accident, which occurred on Interstate 57. He was a passenger in his own vehicle, travehng northbound, when a vehicle owned by the State of Illinois, traveling southbound, crossed the median and struck Claimants vehicle. Apparently, Claimant suffered injuries to his head and hips and continues to have medical problems.

However, as was discovered at the deposition of Claimant, the seatbelt on Claimants seat, which was fastened around Claimant, failed to engage. Claimants deposition testimony further revealed that, in the medical opinion of Claimants doctor, the cause of his injuries was his impact with the windshield and dashboard. This impact obviously would have been eliminated or reduced had Claimants seatbelt functioned properly.

Respondents motion to dismiss illustrates these points from the deposition and outlines the applicable law. Respondent is correct in its assertion that the Court of Claims regulations require claimants to first exhaust all remedies available against any other tortfeasor before proceeding against the State.

Rule 790.60 of the Court of Claims Regulations (74 Ill. Adm. Code 790.60) and section 25 of the Court of Claims Act (705 ILCS 505/25 (1998)) require that any person who files a claim against the State of Illinois in the Court of Claims must first exhaust all remedies available. Furthermore, Rule 790.90 of the Court of Claims Regulations (74 Ill. Adm. Code 790.90) provides that failure to comply results in dismissal of the claim. This Court has applied these regulations in numerous situations. In Boe v. State (1984), 37 Ill. Ct. Cl. 72, the Court ruled that Claimant’s action could not proceed because Claimant had failed to sue an uninsured 18-year-old with no assets who was the cause of the accident. Here, Claimant failed to sue Ford Motor Company, a multi-national, multi-million dollar company whose design defect was the apparent cause of Claimant’s injuries. The requirement of exhaustion of remedies has been applied in a variety of other cases. Lyons v. State (1981), 34 Ill. Ct. Cl. 268 (failure to comply with the statute of limitations as to other tortfeasor does not result in exhaustion); Morge v. State (1994), 47 Ill. Ct. Cl. 348 (Exhaustion is an “inescapable requirement” to maintaining an action in the Court of Claims.).

Here, the record is clear that Claimant has failed to exhaust all of the remedies available to him. Therefore, this matter must be dismissed.

ORDER

Hess, J.

This matter is before the Court on Claimant’s petition for rehearing, pursuant to our Rule 790.220 (74 Ill. Adm. Code 790.220), Respondent’s response to Claimant’s petition for rehearing, and Claimant’s reply to Respondent’s response to Claimant’s petition for rehearing. The Court being fully advised in the premises states as follows:

Respondent filed a motion to dismiss based upon Claimant’s failure to exhaust administrative remedies (74 Ill. Adm. Code 790.60). Claimant failed to timely respond to Respondent’s motion to dismiss. The Court, by order ' dated April 27, 1999, granted Respondent’s motion to dismiss. Said motion and order were based on Claimant’s deposition testimony where he admitted that his seatbelt failed to properly engage at the time of the accident. The Court therefore agreed with Respondent’s reasoning that the proper course of action would be to pursue any remedies available against the manufacturer of the vehicle. Claimant then filed the instant motion.

Claimant’s motion alleges that the. Court of Claims has erroneously applied our Rule 790.100. (74 111. Adm. Code 790.100.) Claimant argues that because Rule 790.100 requires the State to file a response in a case within 60 days that a motion tó dismiss filed after the running of that 60 days requires leave of Coúrt. Claimant continues this argument by stating that a motion to dismiss filed under Rule 790.60 is asserting an affirmative defense; therefore, Rule 790.100 requires leave of Court. Claimant then begins a lengthy discourse on the difference between motions to dismiss pursuant to sections 2— 619 and 2 — 615 of the Code of Civil Procedure (735 ILCS 5/2 — 619, 5/2 — 615.) While Claimant’s statement of the law of the two sections is accurate, it has no effect on the Court’s reasoning.

As required by our Rule 790.220 (74 Ill. Adm. Code 790.220), a motion for rehearing must present, “points supposed to have been overlooked or misapprehended by the Court; with authorities and suggestions concisely stated in support of the points.” The reasons Claimant presents are the above-noted discourse on sections 5/2— 615 and 5/2 — 619 motions to dismiss and the fact that Respondent submitted Claimants deposition testimony without the Court reporters affidavit. Claimant further states that the motion to dismiss should be reconsidered because the deposition testimony of Claimant failed to offer enough proof, in Claimants opinion, to overcome the hurdle of summary judgment or motion to dismiss. (At this point in the petition for rehearing, Claimant inserted a one-sentence statement regarding motions for summary judgment. The Court is unaware of any previous reference to a motion for summary judgment and cannot see any relevance to the instant proceedings.) While Claimants discourse on sections 5/2 — 615 and 5/2 — 619 is well noted, Claimant’s belief that a motion to dismiss for failure to exhaust remedies, pursuant to Rule 790.60 must be filed within 60 days of the complaint is impracticable. The Attorney General’s office has a large caseload and virtually all Rule 790.60 motions are dependent on discovery. To require the Respondent to file a Rule 790.60 motion within 60 days would effectively render said section moot. The Court does not wish to do so at this time.

Regarding Claimant’s concern of Respondent submitting Claimant’s deposition transcript without the reporter’s statement, the Court rejects said-argument, as Claimant also cited from said deposition. Indeed, the Court reviewed prior pleadings in this case regarding the final issue cited by the Claimant and reread the following transcript from Claimants deposition testimony, cited by Claimant in a previous pleading.

“Q. Did the seat belt restrain you?
A. Not completely.
Q. In your opinion and from your regular life experience, did the seat belt react the way that they are designed to do so?
A. I don’t think so.
Q. And why don’t you think so?
A. ’Cause I still got injured.
Q. Did it engage and lock at the time of the impact to prevent you from going forward?
A. No.”

Claimant notes in his petition for rehearing that enough evidence was not presented in the nine pages of deposition transcript to overcome the burden of a motion to dismiss. Said argument appears to be based on a quantity rather than quality argument. The Court does not find this argument persuasive. Claimant admitted in his deposition that the seatbelt failed to engage and lock, therefore the motion to dismiss based upon failure to exhaust remedies was proper.

Accordingly, Claimant’s petition for rehearing is denied.

       At this point in the brief, Claimants comes close to accusing the Respondent of presenting false evidence to the Court when Claimant states, “Instead, there is [sic] attached nine (9) pages of unsworn documents from a purported deposition transcript of the claimant.” The Court finds no basis or reason to doubt the genuineness of said deposition transcript, despite Claimants urging to the contrary.