author: Sommer, C.J.

text:
    (No. 95-CC-3936
    Charles A. Shanks, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 18, 1998.

    Charles A. Shanks, pro se.

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

Sommer, C.J.

Claimant seeks judgment against Respondent for damage sustained by Claimants trailer while Claimant was visiting Sanchris Lake State Park on June 5, 1995. Claimant alleges his trailer was struck by rocks thrown by a riding mower that was being operated by a park employee. Claimant further alleges the mower was being operated with the mower guard chute in a raised position.

The parties waived transcription of the hearing by a court reporter. The record includes Claimants exhibits 1, 2, and 3. Claimants exhibit 1 is a diagram of the accident site prepared by Claimant at the hearing. Claimants exhibit 2 is a copy of an accident report prepared by the site superintendent of the Sanchris Lake State Park after the incident occurred. Claimants exhibit 3 is a copy of a repair estimate Claimant received after the trailer was damaged. Claimants exhibits 2 and 3 were admitted only to show they were documents Claimant received after reporting an accident and requesting an estimate. Exhibits 2 and 3 were not accepted for the truth of the matters contained therein, due to their hearsay nature. Claimant did not file a brief. Respondent has filed a brief.

Claimant testified as follows: On June 5,1995, he was camping with his family at the Hickory Point Campground at Sanchris Lake State Park. He was sitting at a picnic table between where his trailer was parked and a small road approximately eight feet wide. There were rocks on the shoulder of the road. A mower was being operated by a silver haired gentleman on the other side of the road. The mower was a riding mower with the mower attachment on the front that had a cutting width of approximately 60 inches. The mower guard chute that directed debris from the mower downward was in the up position. While the mower was being operated on the shoulder of the road across from where Claimant was sitting, rocks shot out from underneath the mower toward Claimant and his trailer. Some of the rocks hit Claimants’ trailer causing a dent in the side of the trailer. Claimant estimated the rocks were approximately one inch in diameter. He also estimated the mower was approximately 10 to 20 feet from the trailer when the incident occurred. About an hour or two later, Claimant went to the park officer to report the incident. At the office, Site Superintendent Stephen Carey filled out the accident report that is attached to Claimants complaint and is also Claimants exhibit 2. Mr. Carey also took pictures of the trailer.

Claimant testified he took his trailer to Hadleys RV to get a repair estimate. He was told at Hadleys to take his trailer to K & C RV and Auto Center in Decatur, Illinois, on June 20, 1995. Claimant received an estimate from K & C RV and Auto Center of $1,107 to repair the trailer. A copy of the estimate is attached to Claimants complaint and is also Claimants exhibit 3.

Claimant testified he did not have the trailer repaired. He later traded the trailer for a new trailer. His position is that he received less on the trade-in in the amount of the estimated repair cost.

On cross-examination, it was elicited from Claimant that the accident report was dated June 13, 1995, and it was possible that Claimant returned to the park eight days later to report the damage. Claimant also testified on cross-examination that he could not remember when he traded the trailer in, but acknowledged that he swore under oath in interrogatories that he traded the trailer in on September 18, 1995.

Regina Wilderman testified on Claimants behalf. She is Claimants daughter and was with Claimant at the Hickoiy Point Campground on June 5, 1995. She was sitting at the picnic table with her son. She estimated that the mower was ten to 20 feet from the trailer when the rocks shot out from underneath the mower. She testified that one of the rocks almost hit her son. She further testified that rocks hit Claimants trailer which caused a dent in the side of the trailer.

Respondent chose not to present any witnesses or exhibits.

The State owes a duty to the public to exercise reasonable care in establishing, maintaining, and supervising its parks. (Kamin v. State (1953), 21 Ill. Ct. Cl. 467.) In Perlman v. State (1979), 33 Ill. Ct. Cl. 28, 31, this Court stated that:

“The State of Illinois is not an insurer and before the Respondent can be liable for Claimants injury it must be shown by the preponderance or the greater weight of the evidence that a dangerous and defective condition existed * * * and that the Respondent knew or should have known of said defective and dangerous condition."

Notice to Respondent of a dangerous condition can be either actual or constructive. Weygandt v. State (1957), 22 Ill. Ct. Cl. 478.

At the close of Claimant’s case, Respondent moved for a directed verdict. A directed verdict should be entered only in those cases in which all of the evidence, when viewed in the aspect most favorable to the opponent, so overwhelmingly favors the moving party that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria and Eastern R.R. Co. (1967), 37 Ill. 2d 404, 220 N.E.2d 504.) The testimony presented by Claimant and his daughter was sufficient to overcome the motion for directed verdict.

To prove Respondent was negligent, Claimant must prove by the preponderance of the evidence that Respondent had actual or constructive notice of a dangerous condition. Claimant must also prove that the dangerous condition was the proximate cause of the damage to his trailer. The unrefuted testimony of Claimant and his daughter established the following: An employee of Respondent was operating a riding mower approximately ten to 20 feet away from Claimant’s trailer. The guard chute of the mower was in the up position. The employee was mowing in the area of the shoulder of a road which contained rocks. Some of the rocks shot out from under the mower and hit Claimants trailer. One of the rocks caused a dent in Claimants trailer. The Court finds that these facts are sufficient to prove Respondent’s negligence caused the damage to Claimant’s trailer. Respondent’s employee knew or should have known that operating a riding mower in an area with rocks with the guard chute up presented a potentially dangerous condition. The unrefuted testimony of Claimant and his daughter proved that the negligent operation of the mower caused the damage to the trailer.

The rule for personal property damage is that the measure of damages is the lesser sum of the difference in value immediately before and immediately after the injury, or the cost of repair. (Kremeyer v. Shumate (1959 2nd Dist.), 20 Ill. App. 2d 542, 156 N.E.2d 271.) Since Claimant did not repair the trailer, it was necessary for him to introduce evidence of the value of the trailer immediately before the injury occurred and the value of the trailer after the injury occurred in order to recover damages. (See Wall v. Amoco Oil Company (1981 5th Dist.), 92 Ill. App. 3d 921, 416 N.E.2d 705.) Claimant did not present any evidence of the value of the trailer immediately before and immediately after the damage occurred.

Therefore, this Court has no basis upon which to issue an award. The value of the trailer may or may not have been diminished by the amount of the cost of the repairs. It is therefore ordered that this claim is denied.


source: Caselaw Access Project

author: Epstein, J.

license: Public Domain

text:
    (No. 96-CC-0888
    Thos. M. Madden Co., Illinois Constructors Corp., and Thomas M. Madden Co. and Illinois Constructors Corp., a joint venture, Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 5, 1999.

    Querrey & Harrow (Scott B. Krider, of counsel), for Claimant.
    Jim Ryan, Attorney General (Paul G. Arvites, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

This contractors claim against the Respondents Department of Transportation (“IDOT”) is before us on the Respondents motion pursuant to section 2-619(a)(5) of the Code of Civil Procedure to dismiss the claim as time-barred by the 4-year construction claim limitation of section 13-214 of the Code. (735 ILCS 5/13-214.) Claimant disputes the applicability of that statute to this claim, which it maintains is governed by the 5-year contract claim limitation of section 22(a) of the Court of Claims Act. (705 ILCS 505/22(a).)

The Limitations Issue

This action was filed on October 19, 1995. In this claim, Claimants seek recompense or indemnification under their contract with IDOT (for work on the Dan Ryan Expressway) for any damages that may be awarded against them in a third-party lawsuit pending in the circuit court, which allegedly arises out of the same project and the same work. Claimants were served with service of the circuit court lawsuit on October 23, 1990. At that time, as Respondent correctly contends and as Claimants acknowledge, they knew or should have known of the cause of action against IDOT that they ultimately filed here more tiran 4 years, but less than 5 years, later.

The issue is which statute of limitations applies to this claim. Respondent contends that section 13 — 214(a) of the Code of Civil Procedure applies (4-year limitation); while Claimant contends that section 22(a) of the Court of Claims Act (5-year limitation) applies. It is clear that this claim survives if section 22(a) of our Act applies and is barred if section 13 — 214(a) of the Code applies.

Analysis

Respondent argues, and Claimant does not dispute, that this contract claim falls within the scope of section 13 — 214(a) of the Code of Civil Procedure, which provides in material part:

“(a) Actions based upon tort, contract, or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 4 years from the time the person bringing the action, or his privity, knew or should have known of such act or omission. * * *.”

Similarly, Claimant contends, and Respondent does not dispute, that this contract claim falls within the scope of section 22(a) of the Court of Claims Act, which provides in material part:

“§22. Limitations. Every claim cognizable by the Court and not otherwise sooner barred by law shall be forever barred 000 unless it is filed * 8 * within the time set forth as follows:
(a) All claims arising out of a contract must be filed within 5 years after it first accrues 6 °

Respondent argues that the 4-year hmitation of section 13 — 214(a) of the Code of Civil Procedure is an "otherwise sooner” bar of this claim within the meaning of section 22(a) of the Court of Claims Act, and therefore is apphcable by its terms and by the terms of section 22(a), citing Hughes v. State (1997), 49 Ill. Ct. Cl. 56.

Claimant contends that section 22(a) of the Court of Claims Act applies, as the more specific of the two competing statutes. Claimant relies on the principle of statutory construction that a specific provision prevails over a general provision with respect to a subject, as the more dispositive expression of legislative intent. Claimant contends that this construction contract claim, although facially subject to section 13 — 214(a) which generally applies to construction actions, is governed by the narrower and more specific hmitation provisions (i.e., section 22) of the Court of Claims Act. Claimant says that the Court of Claims Act, and section 22 in particular, is the more specific statute because it narrowly governs actions against one Respondent, the State, in one Court, the Court of Claims, whereas section 13 — 214 is of more general applicability.

In support of this argument, Claimant relies on Wheatley v. Chicago Transit Authority (1st Dist. 1997), 298 Ill. App. 3d 60, 682 N.E.2d 418. In Wheatley, the Court held that the limitation in the Metropolitan Transit Authority Act (the “MTAA,” which created the Chicago Transit Authority [“CTA”]) controlled over the hmitation of section 13 — 214 with respect to a claim against the CTA, on the basis that MTAA section 41 was the more specific statute, and reflected a legislative intent to supersede the general statutes of limitation.

Although it is an interesting academic question whether the “construction claim” scope of section 13 — 214 of the Code of Civil Procedure is more or less “general” than the “contract claim against the State” scope of section 22(a) of the Court of Claims Act, the Wheatley Courts reasoning is persuasive. However, Wheatley did not involve, and the Wheatley Court did not address, a statutory subordination clause (or “applicability” clause) such as we find in section 22 of the Court of Claims Act. That clause resolves the issue presented.

There is no conflict between section 13 — 214(a) of the Code and section 22(a) of the Court of Claims Act, because the section 22 clause subordinates all of the section 22 limitation provisions to any other law that “sooner bar[s]” a claim — i.e., section 22 expressly defers to any shorter statute of limitations that applies to a particular claim in this Court. The shorter limitation prevails under our statute.

Accordingly, the 4-year limitation of section 13 — • 214(a) applies to this claim, and under section 22 of our Act is a “sooner bar[ring]” law that controls over the section 22(a) 5-year limitation. We therefore find that this claim was barred in October 1994, well before its filing in October 1995.

Order

It is hereby ordered: This claim is barred by section 13 — 204(a) of the Code of Civil Procedure, and is dismissed with prejudice.

       Claimant also cites Goodwill Industries of Chicago v. State (1982), 20 Ill. Ct. Cl. 318, which turned on the proper characterization of the claim, and which we find inapposite to the instant choice-of-limitations issue.


text:
    (No. 96-CC-1806
    Dennis Curtis Boiler Repair, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 5, 1999.

    Robert Wagner, for Claimant.
    Jim Ryan, Attorney General (Michael F. Rocks, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

This contract claim is before the Court for decision following trial to our Commissioner, Elizabeth M. Rochford, on January 15, 1998, on the complaint of the Claimant against the Respondents Department of Corrections (“IDOC”) for work performed at IDOC s Sheridan Correctional Center, alleging breach of contract and seeking damages of $21,408.72. The matter is before us on the Claimants complaint, the trial record, and the Commissioners report. We now render our decision.

The Facts

Dennis Curtis, the Claimants owner, testified that the Claimant is a boiler repair and welding company that had performed services for the Respondent on approximately 100 prior occasions. In the regular course of business, work performed was büled on a time and materials basis to IDOC. At the relevant times, Claimants hourly rate was $52.50 and overtime for time over eight hours daily; work performed on weekends and holidays was billed at $78.75 per hour.

On December 21, 1994, Sheridan Correctional Center Chief Engineer Dariyl Johnson phoned Dennis Curtis requesting urgent boiler repair at the facility. Claimant sent a crew to the facility to assess the problem. Services were performed and the leaks were temporarily stopped.

In the first week of 1995, Claimant received another call from Johnson. At Respondents request, Claimant dispatched another crew on January 7, 1995, to perform another temporary repair. Respondent advised Claimant that a more expensive repair was inevitable but the repair could not be fully assessed without dismantling the boiler. Following a more thorough examination of the boiler later, it was determined that extensive repairs were necessary. Respondents agents authorized the repairs. The specific repairs performed were detailed in Claimants testimony and the work passed an independent inspection.

Following the conclusion of the work, Claimant prepared a bih which detailed charges for time spent at the prison, time spent travehng to and from the prison, time spent in the Claimants shop, material preparation, fabrication and handhng since services were performed. The bill also included fees for costs advanced by Claimant for materials in the amount of $4,761.67 and inspection fees in the amount of $1,343.30 (see Claimants exhibits 9-13).

The biU included charges for 138.5 hours of regular labor at $52.50 and 102 overtime hours at $78.75. Claimant testified that the overtime hours were necessary due to the “emergency” nature of the repairs. Claimant also testified that the workers often experienced delays upon arrival at the prison while they waited to gain entry and the paperwork was completed or the truck was searched.

The final bill was computed as follows:

138.5 Regular Labor hours at $52.50 $ 7,271.25

102 Over-time Labor hours at $78.75 $ 8,032.50

Materials (costs advanced) $ 4,761.67

Inspection Fees (costs advanced) $ 1.343.30

Total Bill $21,408.72

The Respondents departmental report was prepared by Vernon Sebby who testified at trial. The departmental report disputed the total bill but agreed to pay $14,699.03 of the claim.

Sebby testified at trial that, in arriving at the figure, he allowed for reimbursement of materials and inspection fees and for regular labor hours based on the institutional sign-in log and that he granted a total of two hours per day for travel time to and from the institution. The report concluded that Claimant was entitled to be paid for 118.75 of regular labor hours and 4.25 of over-time labor hours. Sebby admitted that he did not consider whether the work was performed on Saturday or Sunday and did not consider work performed in the Claimants shop.

Discussion

On this record, it is undisputed that the boiler repairs to the IDOC correctional facility in this case were necessitated and performed on an emergency basis. This is crucial, of course, as there does not appear to be a supporting written contract between Claimant and Respondent.

The Respondent hired Claimant to perform the repair services and to do so on an emergency basis, which is an exception from the normal State contracting procedures and from the requirement of a written contract to support the claim. Emergency contracts — including contracts for emergency services to maintain State facilities — may be oral. Although State liability on oral contracts is disfavored and extraordinary, it is still within the law and is to be enforced by this Court when proven. James P. Sherlock Construction Co., Inc. v. State (1974), 29 Ill. Ct. Cl. 343. The emergency contract in this case is not disputed.

Moreover, the Claimant had done considerable work for IDOC on many many prior occasions, and thus, both Claimant and IDOC had an established basis and well settled terms on which to contract orally. Although this is not a dispositive factor, this is a significant circumstance that satisfies some of the strongest reasons for which Courts are reluctant to enforce alleged oral contracts.

The Respondent acknowledges its liability for Claimant’s costs advanced for materials and inspection fees. IDOC acknowledges its liability for regular labor hours actually spent inside the prison and for a total of two travel hours per day. However, Respondent neglects to consider the actual hours spent in travel to and from the site and the time spent gaining access to the prison. This is a dispute over the reasonable terms of the contract, rather than on the existence of an obligation to compensate the Claimant according to its established rates. Respondent also ignores the work time spent off-site in Claimant’s shop preparing and fabricating the necessary materials.

We believe that the Claimant has met his burden of establishing his regular billing practices, to which the Respondent must be held to have agreed in engaging Claimant. Claimant’s testimony and the supporting documentation presented at trial convincingly established the necessity of preparatory work off-site in Claimant’s shop, in addition to the repair work performed on-site. The testimony established that the worker travel time was actually three hours a day and that the workers met with security delays upon arrival and departure at the prison site. In this light, and given the absence of any evidence by the Respondent of the unreasonableness of such charges or of an established practice of charging differently for the kind of work and time here disputed, we conclude that the Claimant must prevail on the disputed charges.

Moreover, as both parties have acknowledged the emergency nature of the work performed, our review of the work performed demonstrates to us that it was entirely foreseeable that over-time charges for hours spent in excess of eight regular hours and on Saturdays and Sundays would be necessary and would be charged at the specified and established rates.

This Court does not easily disregard a departmental report, although it is only prima facie evidence of the facts asserted. However, the departmental report in this case was prepared without due consideration for the legitimate factors and established practices shown by Claimant. Claimants testimony and supporting documentation convincingly support its request for payment of $21,408.72, which will be our award in the absence of contrary persuasive evidence.

Conclusion and Award

For the foregoing reasons, the Court concurs with our Commissioner, finds the Respondent to be hable to the Claimant in the amount of $21,408.72, which will be our judgment in this case.

Claimant Dennis Curtis Boiler Repair, Inc. is awarded the sum of $21,408.72 in full and complete satisfaction of this claim.


text:
    (No. 96-CC-2194
    Homer James, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 17, 1998.

    Homer James, pro se.

    Jim Ryan, Attorney General (Diann K. Marsalek, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

Claimant, an inmate with the Illinois Department of Corrections, seeks judgment against Respondent for property allegedly lost or stolen while in Respondents possession while Claimant was a resident of Dixon Correctional Center (“Dixon”).

A hearing was held by Commissioner Mathis at Dixon Correctional Center. The record includes the transcript of testimony and Respondents exhibit 1 which is the departmental report. Claimant filed a brief, but Respondent has not.

Claimant testified as follows. On March 1, 1995, Claimant was transferred to Dixon from Pontiac Correctional Center (“Pontiac”). He arrived at Dixon with his property which included a 13-inch Zenith color television. He spent his first night at Dixon in temporary holding in the basement of the health care unit (“HCU”). On March 2, 1995, he was given a pass to go to the personal property office to pick up his property. He received his property which included the television set. Due to crowded conditions in the HCU, Claimant asked personal property officer Diaz if he could leave his television in the personal property office. He was told that he could either send it home or take it with him. Claimant then took the television with him to tire HCU and asked an officer if there was anywhere he could put his property until he was assigned to a cell. The officer said Claimant could put his television in room Bill (“Bill”) which is a locked closet without inmate access. Claimant’s television was placed in Bill after Claimant received the officer’s assurance that it would be safe there.

When Claimant attempted to retrieve the television on March 10, 1995, he found that it was missing. Claimant filed a grievance regarding the matter which was ultimately denied by tire Administrative Review Board (“ARB”) in a letter dated June 2, 1995. The letter is contained in Respondent’s exhibit 1, the departmental report, which states in pertinent part:

“This matter was addressed by the grievance officer on March 30,1995. The facts reviewed state: TIB notes that allegations of missing property have been substantiated. IIB notes the Inmate James received the TV (Zenith 13" Color, Model S1320S, Serial Number GQ3LA29256) from Dixon personal property on March 2, 1995. The IIB notes that any property an inmate does not wish to keep in his possession may be returned to personal property for disposition in accordance with Departmental Rules. IIB notes Inmate James voluntarily placed the TV in Room Bill. It is noted that Room Bill is not a designated personal property storage area and does have limited inmate access to it. Staff reports indicate that the TV was placed in Room Bill on March 2,1995, and discovered missing on March 10, 1995. It is assumed the TV has been removed when persons unknown and attempts to locate TV has been inconclusive. Based on the fact that Inmate James voluntarily placed the TV in room Bill, which is not a designated personal property storage area and they did not return the TV to personal property for proper disposition, the IIB recommends the grievance be denied.’
# O a
Recommendation: Based on a total review of all available information, this office recommends your grievance be denied. It is the opinion of this office the alleged loss was not the result of misconduct by staff and that you had the option of taking your property with you but refused.”

Claimant found the ARBs decision to be confusing because he did take the television with him when he left the personal property office because he did not want to send it home. Claimant contends he is entitled to be compensated for the television and mental anguish associated with the incident because a Dixon correctional officers disregard of department rules and regulations led him to believe it was appropriate to place his television in Bill. Claimant further contends that a bailment was established when his television was placed by a Dixon correctional officer in Bill, which was a locked room.

Respondent presented Officer Richard A. Skibinski, a relief personal property officer at Dixon, as a witness. Officer Skibinski was familiar with the storage area, Bill, where Claimants television was placed. It was an area where the personal property officer stored extra packing boxes as well as sterilized health care equipment. There were two doors to access the room. The exterior door could be accessed by anyone carrying a master mogul or AG master key. The health care roving officer could get through the exterior door with an AG key. A CM key would be needed to access the interior door. Officer Skibinski believed that key was only on the ring that was assigned to the officer who was in the basement. Officer Skibinski testified that inmates who were not escorted did not have access to Bill. Officer SkibinskL further testified Bill was not a designated area to store a television.

The State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual possession of such property, as during the course of a transfer of an inmate between penal institutions or when the institution issues receipts for the property. (Doubling v. State (1976), 32 Ill. Ct. Cl. 1; Lewis v. State (1985), 38 Ill. Ct. Cl. 254.) Such actual physical possession creates a bailment. 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. (Catenacci v. State (1978), 32 Ill. Ct. Cl. 669.) However, this Court has held that before a recovery can be made by an inmate, it must be shown by positive proof that Claimants property was in the exclusive possession of Respondent. Talley v. State (1983), 35 Ill. Ct. Cl. 828.

This Court finds that Claimant has proved that Respondent took actual and exclusive possession of his television. The grievance denial letter from the ARB, which was previously quoted in this report admits that the television was placed in Bill on March 2,1995, and found to be missing on March 10, 1995. Even though Bill was not a designated personal property storage area, Claimant was permitted to have his property stored there. He stored the property in Bill after being assured that his property would be safe. Officer Skibinski testified that it was necessary to access two locked doors to enter Bill. He believed that the key to enter the interior door was only on the ring that is assigned to the officer who was in the basement. He also testified that inmates who were not escorted did not have access to Bill. These facts are sufficient to prove Respondent had actual and exclusive possession of Claimant’s television. A presumption of negligence on the part of Respondent therefore arises since Claimant has proven the television was lost while in Respondents possession. This Court finds that Respondent has failed to present evidence of due care to rebut the presumption of negligence. Respondent is therefore hable for the loss of Claimants television.

Claimant testified that he purchased the television in December of 1994 for $230 while he was at Pontiac. He did not present any other evidence of value of the television. In these situations the Court has determined that it must place a value on the lost property and depreciation is given consideration in determining the value. (See Holland v. State (1992), 45 Ill. Ct. Cl. 343.) Taking into consideration that Claimants television was approximately three months old when it disappeared, it is recommended that Claimant be awarded $200 for the loss of the television.

It is our finding that the remainder of Claimants claim seeking compensation for the mental anguish associated with this incident be denied since Claimant has failed to prove any physical impact or symptom as a result thereof. This Court has ruled previously that there cannot be recovery for mental distress without physical manifestation. Macon v. State (1986), 37 Ill. Ct. Cl. 326; Black v. State (1993), 47 Ill. Ct. Cl. 81.

Based on the foregoing, it is ordered that Claimant is awarded $200.


author: Jann, J.

text:
    (No. 96-CC-3973
    Teen Living Programs, Claimant, v. The State of Illinois, Respondent.

      Order filed December 18, 1998.

    Tammy L. Brown-Zielke, for Claimant.
    Jim Ryan, Attorney General (Michael F. Rocks, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Jann, J.

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

Claimant filed this claim as a lapsed appropriation claim. Respondent has filed a departmental report prepared by the Department of Children and Family Services (“DCFS”) in investigation of this claim. Pursuant to section 790.140 of the Court of Claims Regulations (74 111. Adm. Code 790.140), a departmental report is prima facie evidence of the facts set forth herein. According to the departmental report, DCFS acknowledges that this is a valid claim only in the amount of $527.67. However, no award should be made in this case because the amount owed under this claim is being set-off against a debt owed by Claimant to DCFS.

The Court of Claims Act provides that awards made by the Court are subject to the right of set-off. See section 26 of the Court of Claims Act. 705 ILCS 505/26.

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


author: Epstein, J. Epstein, J. Epstein, J.

text:
    (No. 97-CC-0423
    Reynolds State Bank, Claimant, v. Office of the State Guardian as Guardian of the Estate of Glenn A. Blaser, a Disabled Adult, Respondent.

      Order filed June 12, 1997.

      Opinion on petition for rehearing filed February 19, 1998.

      Supplemental opinion filed September 23, 1998.

    Katz, McHard, Batch, Lefstein & Fieweger (Lori Lefstein, of counsel), for Claimant.
    Jim Ryan, Attorney General (Edwin Durham, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Epstein, J.

This claim is before the Court on the Respondents motion to dismiss per section 2 — 619 and section 2 — 615 of the Code of Civil Procedure (735 ILCS 5/2 — 619, 2— 615) which raise both jurisdictional and substantive issues, and which have been fully briefed and orally argued to the full Court.

The Facts

The Claimant, Reynolds State Bank (the “Bank”), was the depository of funds of a testamentary trust that had been created, in 1959, by the will of the late Albert Blaser, for the benefit of his son, Glenn A. Blaser during his lifetime, with the remainder interest in Glenn Blaser s descendants. (Complaint, pars. 3-5.) The initial trustee died; on December 29,1992, Patsy Ann Stone, a daughter of Glenn A. Blaser, was appointed as successor trustee. (Id., pars. 5,10.)

On December 15, 1989, the Circuit Court (Rock Island County) appointed the Office of the State Guardian (“OSG”) as plenary guardian of the estate of Glenn Blaser, a disabled adult, and issued letters of office to the OSG. (Id., par. 6.) On January 2, 1990, the OSG sent a demand letter to the Bank requesting it to deliver to the OSG “the balance in account nos. 3860 and 3916 (certificates of deposit)” and directed that the Banks check “should be made payable to the [OSG] for Glen [sic] Blaser * * *.” The OSGs letter enclosed copies of its letters of guardianship from the Circuit Court. (Id., par. 7, exhibit 3.)

The Bank sent the OSG a certified check for $44,266.07 “representing the balance of two certificates of deposit and a savings account.” (Id., par. 8.) The Bank alleges that it made the payment “in good faith and on reasonable belief that the OSG had Court-approved authority to collect these funds.” Ibid.

Procedural History of this Litigation

In 1993, Patsy Ann Stone, as successor trustee of the Blaser Trust, sued the Bank in the Circuit Court (Rock Island County) seeking restitution of the funds from the Bank and the OSG. The Bank filed a “counterclaim” for indemnification against the OSG.

The Circuit Court entered summary judgment against the Bank and the OSG for $27,874.42, and entered summary judgment for the Bank against the OSG for $27,874.42 on the Banks “counterclaim.” The successor trustee received satisfaction of the judgment.

The OSG appealed on the basis of sovereign immunity. The Appellate Court, Third District, in an unpublished order, reversed and vacated the judgment against the OSG, holding:

"In the matter sub judice, the Bank, by its counter-claim, sought and received a money judgment against the OSG. The OSG, a division of the Guardianship and Advocacy Commission, is an executive agency of state government created by the legislature. See section 3 of the Guardianship and Advocacy Act. (20 ILCS 3955/3 (West 1994)). Thus, claims against the OSG subjecting the State to potential liability fall within the exclusive jurisdiction of the Court of Claims. Noorman v. Department of Public Works (1937), 366 Ill. 216.”
Stone v. Office of the State Guardian and Reynolds State Bank, No. 3-95-0451 (Order) (Ill. App. Ct., 3d Dist.), at 4.

The Appellate Court also rejected the Bank’s contention that the OSG like “any individual or corporation serving as a guardian under * * * the Probate Act * * * must answer to the Circuit Court for any alleged wrongdoing.” (App. Ct. Order, at 4-5.)

Following the Appellate Court’s reversal of the judgment against the OSG and that Court’s denial of the Bank’s petition for rehearing, the Bank filed its complaint in this Court against the OSG, still contending “that this Court [of Claims] does not have exclusive jurisdiction to hear and determine this claim” but nevertheless filing it “because the Appellate Court has held otherwise,” but noting that it was seeking review by the Supreme Court. (See complaint, par. 18.)

The Claims Advanced

In this Court, the Bank’s complaint did not articulate a legal theory of recovery. In the briefs on the motions to dismiss, Claimant asserted implied contractual indemnification theories which appear to be based, at least arguably, on both legal and equitable grounds, but which are not supported by any express contract between the Claimant and the OSG, as the Respondent so emphatically points out. At oral argument, Claimant articulated a conversion theory, as imbedded in the complaint.

Respondent urges that this Court lacks subject matter jurisdiction over equitable claims, and alternatively, that we lack jurisdiction to entertain any implied contract claims. Respondent separately contends that this action is barred by the jurisdictional limitations provisions of our Act. Finally and substantively Respondent argues that the complaint fails to state a legal or equitable claim for implied indemnity under any legal or equitable action recognized in Illinois.

Opinion

In this Court and seemingly in the Appellate Court, this case has become somewhat confused. This Court entertained this claim — through briefing and oral argument on the pending motions — as a claim against a State agency, asserting liability of the OSG in that capacity. Thus considered, and particularly in fight of the liability arguments advanced in the Claimants briefs, this claim is a claim against the State that properly belongs in this Court under our exclusive jurisdiction under section 8 of the Court of Claims Act. 705 ILCS 505/8.

On closer scrutiny, however, this is not such a claim. As seemingly was also the posture in the Circuit and Appellate courts, the Bank has sued the OSG in this Court “as Guardian of the Estate of Glenn A. Blaser, a Disabled Adult.” So read all of the captions of all of the pleadings that we have seen in all three Courts in which this dispute has been entertained. In this Court, not only is the caption so designated, but the text of the Bank’s complaint names the OSG solely in its Circuit Court-appointed capacity as guardian of the estate of Glenn A. Blaser.

As embarrassing as this belated discoveiy may now be to all concerned, including this Court, that limitation is jurisdictionally dispositive. This is not a claim against the OSG, individually, in its capacity as a State agency. This is a claim against the estate of Glenn A. Blaser. This is how it is pleaded. This is how it will be considered. Despite our erroneous indulgence in the supplemental argumentation of the parties (which is at best ambiguous as to the status of the Respondent OSG), and in light of the absence of any allegation of tortious conduct or breach of express contract by the State in this complaint, we will not sua sponte expand the Claimants complaint beyond its own terms.

As a claim against the estate of a private individual, this claim falls outside of the jurisdiction of this Court. As we have held in other cases where State officers or agencies are sued in private fiduciary capacities, this Court lacks subject matter jurisdiction over the underlying private estate:

“As a claim against a probate estate, this claim is outside the jurisdiction of this court as prescribed by section 8 of the Court of Claims Act (735 ILCS 505/8).”
Kulas v. Vogler (1997), 49 Ill. Ct. Cl. 172 at 173.

Because this claim must be dismissed for want of subject matter jurisdiction, we need not, and do not, address the other jurisdictional and substantive issues urged by the parties.

This claim is dismissed for lack of subject matter jurisdiction over the estate of Glenn A. Blaser, and over the Office of State Guardian as guardian of that estate.

OPINION

Epstein, J.

This case returns on motions following its dismissal for want of jurisdiction over the original claims against the Office of the State Guardian (“OSG”) in its representative capacity as Court-appointed guardian of an individuals estate. We held, and the parties do not now dispute, that this Court lacks jurisdiction over a claim against a private estate and its private funds, (order of June 12, 1997.) That order sets forth the essential facts as alleged.

Claimant now asks us to reconsider the dismissal and to permit it to file its two-count amended complaint that names the OSG in its personal capacity as a State agency and thus claims against the State. The Respondent asks us to dismiss the amended complaint on various jurisdictional and substantive grounds. In response to our order (September 5, 1997), the parties each briefed some, but not all, of the issues spawned by the four motions now before us:

(1) Claimant’s petition for rehearing, which contends that dismissal of the original claim was an improper remedy under section 2 — 401(b) of the Code of Civil Procedure (735 ILCS 5/2-— 401(b)) for the “misnomer” of the OSG in its capacity as the “Guardian of the Estate of Glenn A. Blaser * * rather than in its “intended” capacity as a State agency;

(2) Claimant’s motion under section 2 — 401 and section 2 — 616 of the Code of Civil Procedure (735 ILCS 5/2 — 401, 2 — 616) for leave to file an amended complaint against the OSG in its personal capacity as a State agency;

(3) Respondent’s section 2 — 615 motion of the Code of Civil Procedure (735 ILCS 5/2 — 615) to dismiss the amended count I for failure to state an implied indemnity action based on tort, and to dismiss the amended count II for lack of jurisdiction over an implied indemnity claim based on equitable quasi-contract; and

(4) Respondent’s section 2 — 619 motion of the Code of Civil Procedure (735 ILCS 5/2 — 619) to dismiss the amended complaint as barred by the two-year limitation of section 22(g) of the Court of Claims Act (705 ILCS 505722(g)); which is jurisdictional (id. section 22(h)).

The Petition for Rehearing

Claimant asks us to reconsider the dismissal order on the basis of section 2 — 401(b) of the Code of Civil Procedure (750 ILCS 2/2 — 401(b)), which precludes dismissal as a remedy for a misnomer. Claimant characterizes its initial pleading against the OSG as a misnomer, saying that it intended to name the OSG personally and that its naming the OSG in its guardian capacity was inadvertent.

We accept Claimant’s representation of inadvertency, but reject its argument that section 2 — 401(b) precludes dismissal of a mispleaded claim that, as pleaded, lies beyond the Court’s jurisdiction. The pleader’s intent is immaterial to jurisdiction; and lack of jurisdiction is dis-positive. Claimant cites no authority that dismissal is improper where the Court lacked subject matter jurisdiction over a mispleaded dismissed claim.

However, we have also concluded that the jurisdictional dismissal of the original claim does not preclude further proceedings in this Court on an amended or new claim over which the Court does have jurisdiction. This Court will treat a later claim against a substantively distinct Respondent as a new claim, whether filed in a new or an amended complaint. In this circumstance at least, and in this Court at least, the dismissal issue is a hyper-technicality.

Although this Court, by rule, has adopted the Administrative Code to govern our proceedings generally (74 111. Admin. Code 790.20), procedures in this Court are nonetheless subordinate to the requirements and limitations of the Court of Claims Act, particularly the jurisdiction provisions of section 8 (705 ILCS 505/8). As this case demonstrates, the interplay between this Courts jurisdictional constraints — unique in Illinois — and the mixture of State and non-State capacities in which some “State agencies” operate, can create a trap for unwary litigants. But sympathy and empathy do not permit us to expand our narrow statutory jurisdiction. We reject Claimants section 2 — 401 argument, and deny the petition for rehearing.

Leave to Amend

Claimants motion for leave to amend to name the OSG in its personal capacity relies on both the misnomer cure provisions of section 2 — 402 and the general amendment provisions of section 2 — 616 of the Court of Claims Act (705 ILCS 505/2 — 402, 505/2 — 616). The Respondent has interposed no objection to amendment, and has not suggested any resulting prejudice to the State.

In this context, and because we agree with the Claimant that the State had timely notice of the underlying claim which, though technically a different action in the amended complaint than in the original one, arises from the same transactions, we will allow amendment under section 2- — 616 and need not address section 2 — 402. Claimants amended complaint will be filed instanter.

The Motion to Dismiss Amended Count I Failure to State a Tort-Based Implied Indemnity Action

Respondent attacks the count I implied indemnity claim for failure to state a cause of action on the arguments: (1) that tort-based implied indemnity actions lie only for derivative tort liability in Illinois, since the enactment of the Contribution Act, and that such derivative liability requires an antecedent (i.e., pre-tort) relationship between the indemnitee (the plaintiff who suffered a loss by derivative liability) and the indemnitor (the tortfeasordefendant who generated the liability), citing Zielinski v. Miller (3d Dist. 1996), 277 Ill. App. 3d 735, 660 N.E.2d 1289; Coleman v. Franklin Boulevard Hosp. (1st Dist. 1997), 227 Ill. App. 3d 904, 592 N.E.2d 327; and People v. Community Hospital of Evanston (1st Dist. 1989), 189 Ill. App. 3d 206, 545 N.E.2d 226; and (2) that there is no allegation in the amended complaint of a pre-tort relationship between the Claimant Bank and the Respondent OSG.

The Claimant concedes the requirement of a supporting pre-tort relationship between the parties, (reply to response to petition for rehearing and motion to dismiss, 3-4.) Claimant seeks to meet this requirement with the argument (id., at 4) that

“the obvious pre-tort relationship which [the Claimant] RSB had with [the] OSG was that of being the predecessor fiduciary which transferred funds in good faith to [the] OSG pursuant to OSG's demand and apparent Probate Court order.”

Claimant argues that this “predecessor fiduciary” status also provides a predicate of tort Uability for the “misconduct, * * * [of the] OSG’s # * * acts * * * in improperly spending the trust funds which had been entrusted to it by its predecessor fiduciary” ibid.

InitiaUy, we observe that both parties miscategorized the legal theory of the amended count I, which is predicated upon a surviving aspect of the common law implied indemnity doctrine in Illinois that allows indemnity recovery in derivative liability situations. However, that surviving aspect is part of the quasi-contract wing of the imphed indemnity doctrine, rather than the tort wing of the doctrine, as Claimant contends and as Respondent seems to assume. The tort wing of imphed indemnity was based on the relative blameworthiness of tortfeasors. That wing of the doctrine was judicially abolished in Illinois following the enactment of the Contribution Act. American National Bank and Trust Co. v. Columbus-Cunero-Cabrini Medical Center (1993), 154 Ill. 2d 347, 609 N.E.2d 285, 288-289, 181 Ill. Dec. 917, 920-921:

“* e “ In short, in view of the scope of the Contribution Act, reason to support implied indemnity based on tort principles of relative blameworthiness has ceased to exist.
However, the theory supporting implied indemnity in a quasi-contractual context is supported by a fundamentally different premise, [citation omitted.] That premise recognizes that the law may impose upon a blameless party liability derivatively through another’s conduct, [citation omitted.] Thus 5 * * reasons may exist to continue to recognize the viability of implied indemnity where a principal is vicariously liable for the conduct of an agent or for the nondelegable acts of an independent contractor, [citations omitted.]
O # #
*> » » We therefore hold that common law implied indemnity was not abolished by the Contribution Act in quasi-contractual relationships involving vicarious liability.”

It is therefore apparent that the amended count I cannot, and does not, state a cause of action as a tort based implied indemnity action.

If we are to treat the amended count I pleading liberally, disregard its erroneous characterization by its pleader, and consider it as an implied indemnity claim based on quasi-contract (as applied to derivative tort liability), count I must first pass the jurisdictional hurdle raised by Respondent as to count II of the amended complaint. Because count I as well as count II of the amended complaint are quasi-contract-based implied indemnity claims, Claimants jurisdictional attack is equally applicable to both counts.

The Motion to Dismiss Amended Counts [I and] II — Jurisdiction

Respondent attacks the jurisdiction of this Court over the count II implied indemnity claim (and necessarily, as stated above, over the amended count I claim) because of the equitable [quasi-contract] basis of those claims and the oft-stated lack of “equity jurisdiction” of this Court.

The law-equity distinction, which derives historically from the separate development of the Law Courts and the chancery powers in England, has continuing vitality for a number of purposes in American law (particularly the right to a jury trial, see, e.g., Martin v. Heinhold Commodities, Inc. (1994), 163 Ill. 2d 33, 643 N.E.2d). The differences between law and equity, however, involve both their respective remedial powers as well as the underlying rights to relief (i.e., causes of action) at law and in chancery. Application of the law-chancery distinction to the statutory jurisdiction of this Court, therefore, is not always as straightforward as it is in this case.

In this case, there is a short answer to the Respondents challenge to this Courts jurisdiction over quasi-contract-based implied indemnity claims. As the Claimant correctly points out, our Supreme Court has held that the common law implied indemnity action, including both the tort wing and the quasi-contract wing, is itself a tort. Maxfield v. Simmons (1993), 96 Ill. 2d 81, 449 N.E.2d 110, 70 Ill. Dec. 236; Anixter Brothers, Inc. v. Central Steel & Wire Co. (1st Dist. 1984), 123 Ill. App. 3d 947, 463 N.E.2d 913, 79 Ill. Dec. 359; Garcia v. Edgewater Hospital (1st Dist. 1993), 244 Ill. App. 3d 894, 613 N.E.2d 1243, 184 Ill. Dec. 651.

It is thus settled in Illinois that implied indemnity actions are torts even when predicated on equitable quasi-contract principles. Accordingly, the amended counts I and II, which sound in implied indemnity, fall within our tort jurisdiction under section 8(d) of the Court of Claims Act (705 ILCS 505/8(d)). Respondents motion to dismiss the amended count II for want of jurisdiction, taken as a motion to dismiss the entire amended complaint for want of jurisdiction, is denied.

The Motion to Dismiss Amended Count I Failure to State a Quasi-Contract-Based Implied Indemnity Action

Reverting to the interrupted analysis of the amended count I, and treating it liberally as an implied indemnity claim based on quasi-contract and derivative liability, the amended count I still fails to state a cause of action for several reasons.

First, the amended count I does not allege a pre-existing relationship in fact or in law between the Claimant bank and the Respondent OSG. The “successor fiduciary” relationship that is now advanced by the Claimant is unsupported by the factual allegations in the complaint and, indeed, is contrary to the Claimant’s allegations. The amended complaint alleges that the Claimant bank was the depository of the funds of the Blaser Trust, and that the OSG was appointed as guardian of one of the beneficiaries (the life income beneficiary) of that trust. Those are hardly the same or “successor” fiduciary positions.

Second, the liability of the Claimant bank that was imposed by the Circuit Court and affirmed by the Appellate Court, for which the Claimant now seeks indemnity from the OSG, was not predicated upon a derivative liability and, seemingly, could not have been.

Having reviewed the Appellate Court’s order, the Circuit Court’s judgment order, and the pleadings and briefs in the prior litigation, we cannot find any basis for the arguments now advanced in this Court that the Claimant bank’s liability to the Trust resulted from a derivative liability or from a “successor fiduciary” liability, or that the liability imposed by those Courts was predicated on the OSG’s “improperly spending” the funds that the Claimant bank had erroneously released to the OSG. Moreover, the fiduciary roles of the Claimant and the OSG that are alleged in the complaint — depositary of trust funds (Claimant) and guardian of life income beneficiary of trust (Respondent) — would not support derivative liability on the Claimant bank for the trusts loss, for which it was held liable.

The Statute of Limitations

The Respondents limitations attack on the amended complaint — of which only count II now remains for consideration — is based upon the residual two-year limitation of section 22(g) of the Court of Claims Act (705 ILCS 505/22(g)). The Claimant defends the viability of its implied indemnity claim(s) on the basis of when its actions for indemnity first accrued. Based on settled Illinois case law, Claimant argues that its indemnity actions could not accrue prior to the date of its payment or of a judgment against it for which Claimant seeks indemnity, and that therefore its indemnity claims fall within the two-year limitations period.

Neither party, however, has cited or addressed the recent (1994) statutory change in the statute of limitations for contribution and indemnity: section 13 — 204 of the Code of Civil Procedure (735 ILCS 5/13 — 204) as amended by PA. 88 — 538, section 5, approved and effective March 14,1994.

The recently amended statute, which is arguably applicable here, provides a two-year limitation period for contribution and indemnity actions, which is, to that extent, identical to the period prescribed by section 22(g) of the Court of Claims Act (705 ILCS 505722(g)) which is advanced by the Respondent in its motion. However, the new limitations statute also provides as follows:

“§13 — 204. Contribution and indemnity.
# # #
(b) In instances where an underlying action has been filed by a claimant, no action for contribution or indemnity may be commenced more than 2 years after the party seeking contribution or indemnity has been served with process in the underlying action or more than 2 years from the time the party, or his or her privy, knew or should reasonably have known of an act or omission giving rise to the action for contribution or indemnity, whichever period expires later.
(c) The applicable limitations period contained in subsection (a) or (b) shall apply to all actions for contribution or indemnity and shall preempt, as to contribution and indemnity actions only, all other statutes of limitation or repose, but only to the extent that the claimant is an underlying action could have timely sued the party from whom contribution or indemnity is sought at the time such claimant filed the underlying action, or in instances where no underlying action has been filed, the payment in discharge of the obligation of the party seeking contribution or indemnity is made before any such underlying action could have been barred by lapse of time.
(d) The provisions of this amendatory Act of 1993 shall be applied retroactively when substantively applicable, including all pending actions without regard to when the cause of action accrued; provided, however, that this amendatory Act of 1994 shall not operate to affect statutory limitations or repose rights of any party which have fully vested prior to its effective date.”

This Court is reluctant to consider this amended limitations statute and its potential application to this case in the absence of an opportunity for the parties to address the issues involved. We will defer consideration of the limitations issue in this case and will direct the parties to submit supplemental briefs on this issue only.

We request the parties to address, inter alia, the amended section 13 — 204s applicability to this case, its relation to and “preemptive” effect, if any, on the Court of Claims Act, and the retroactivity provision of section 13 — 204(d). We further request the parties to address the decision in Ganci v. Blauvelt (4th Dist., January 22, 1998), 294 Ill. App. 3d 508, 690 N.E.2d 649, and any other reviewing Court decisions addressing the amended section 13 — 204.

Order

For the reasons set forth above, it is hereby ordered:

(1) Claimants petition for rehearing is denied; and

(2) Claimants motion for leave to amend is granted; and Claimant is granted leave to file its amended complaint instanter; and

(3) Respondent’s motion to dismiss count I of the amended complaint for failure to state a cause of action is granted; and count I of the amended complaint is dismissed; and

(4) Respondent’s motion to dismiss count II of the amended complaint for want of jurisdiction, taken as a motion to dismiss counts I and II of the amended complaint for want of jurisdiction, is denied; and

(5) Respondents motion to dismiss count II of the amended complaint as barred by the statute of limitations is continued to the conclusion of the supplemental briefing schedule set forth below; and

(6) The parties are each directed to file, simultaneously, a supplemental brief on the application of section 13 — 204 of the Code of Civil Procedure (735 ILCS 5/13 — 204) as now amended, to this claim not later than March 20, 1998; and

The parties may each file a supplemental reply brief on the section 13 — 204 limitations issues no later than 28 days after the opposing party has filed its supplemental brief.

SUPPLEMENTAL OPINION

Epstein, J.

This case is again before us on the last piece of the Respondent’s motion to dismiss Claimant’s amended complaint. That remaining issue is whether or not count II of the amended complaint, sounding in the tort of implied quasi-contractual indemnity, is barred by the two-year limitation of section 22 of the Court of Claims Act (705 ILCS 505/22) or by the retroactive two-year limitation of section 13 — 204 of the Code of Civil Procedure (735 ILCS 5/13 — 204, as amended by Public Act 88-538 (1994), effective January 1, 1995, retroactive as provided in section 13 — 204(d)). The essential facts, as pleaded, are set forth in our order of June 12,1997.

We directed supplemental briefs on the limitations issue in light of the retroactive 1994 amendment of section 13 — 204 and the decision in Ganci v. Blauvelt (4th Dist. 1998), 294 Ill. App. 3d 508, 690 N.E.2d 649, 228 Ill. Dec. 890, which construed the amended section 13— 204(d).

The Issue Presented

The dispositive issue is whether or not the amended section 13 — 204 applies to this claim. The resolution of that issue turns on the interpretation of the “retroactivity” and “savings” clauses of paragraph (d) of section 13 — 204 (as amended by PA. 88-538), and their application to the instant facts. As amended in 1994, section 13 — 204 set a two-year limitation period for all contribution and indemnity actions in Illinois, and in relevant part provides as follows:

“§13 — 204. Contribution and indemnity.
# 6 #
(b) * * * where any underlying action has been filed by a claimant, no action for contribution or indemnity may be commenced more than 2 years after the party seeking contribution or indemnity has been served with process in the underlying action or more than 2 years from the time the party, or his or her privy, knew or should reasonably have known of an act or omission giving rise to the action for contribution or indemnity, whichever period expires later.
(c) The * * * limitations * 9 * contained in subsection (a) or (b) shall apply to all actions for contribution or indemnity and shall preempt, as to contribution and indemnity actions only, all other statutes of limitation or repose, but only to the extent that the claimant in an underlying action could have timely sued the party from whom contribution or indemnity is sought at the time such claimant filed the underlying action, or*"' where no underlying action has been filed, the payment * * s of the party seeking contribution or indemnity is made before any such underlying action would have been barred by lapse of time.
(d) The provisions of this amendatory Act of 1993 shall be applied retroactively when substantively applicable, including all pending actions without regard to when the cause of action accrued; provided, however, that this amendatory Act of 1994 shall not operate to affect statutory limitations or repose rights of any party which have fully vested prior to its effective date.”

The Parties’ Positions

In an inversion of the usual posture of parties contesting a statute of limitation, the Respondent — seeking to bar the claim — urges a late (post-amendment) date for the accrual of Claimant’s indemnity claim, while the Claimant — seeking to maintain the claim — urges an early (pre-amendment) accrual of its indemnity claim. The argument is whether application of the amended section 13 — 204 to this claim would be a retroactive application, and whether section 13 — 204(d) mandates that retroactive application.

There is no debate about how the amended section 13 — 204 applies to this claim, if it applies. Respondent contends (1) that the two-year limitation of section 13— 204(b), rather than section 13 — 204(a), is applicable because “an underlying action [was] filed” against the Claimant that now asserts indemnity; (2) that the two-year limitation period of section 13 — 204(b) commenced running by March, 1993, when the Claimant bank was served in the underlying lawsuit (by the Blaser Trust) that generated the liability for which indemnity is now sought from the OSG; and (3) that therefore, the limitation period expired in March, 1995, well before the August 29, 1996, filing of the instant complaint, which is thus barred. Claimant does not challenge that analysis.

Claimant seeks to avoid retroactive application of the amended statute under the “savings clause” of section 13 — 204(d) and the holding in Ganci v. Blauvelt (4th Dist. 1998), 294 Ill. App. 3d 508, 690 N.E.2d 649, 228 Ill. Dec. 890 (hereinafter Ganci), which refused to give retroactive effect to section 13 — 204 because of the protection of “statutory limitations or repose rights of any party which have fully vested” (section 13 — 204(d) [“savings clause]). Ganci reasoned as follows:

“Thus, section 13 — 204 purports to have retroactive effect, but it does “not operate to affect statutory limitations or repose rights of any party which have fully vested prior to its effective date.” 735 ILCS 5/13 — 204(d) (West 1996). 8 8 8
However, we cannot disregard 8 8 8 13 — 204(d) 8 8 8. Ordinarily, limitations or repose rights are those exercised by a party defendant 8 8 8 to protect that party from a stale claim, but 8 8 8 13 — 204(d) refers to those rights of ‘any party,’ which would include those possessing a cause of action, as well as those who seek to defend against an action. Moreover, the language concerning the protection of vested rights would have little significance if it referred only to defendants because the amendment cuts down the time plaintiffs have for bringing suits 8 8 8 and, therefore, could not injure the rights of defendants.
No case has been called to our attention that holds that a party having a cause of action has a vested right in that cause of action. 8 8 8 The undisputed vested rights of parties from suits after statutory periods of limitation have expired have been equated with the rights of parties to bring suits. Wilson v. All-Steel, Inc., 87 Ill. 2d 28, 41, 428 N.E.2d 489, 494 (1981); Board of Education of Normal School District v. Blodgett, 155 Ill. 441, 449, 40 N.E. 1025, 1027 (1895). In a dissent 8 8 8 [of] the Supreme Court of Illinois, the statement was made that an accrued cause of action is a vested right. Sanelli v. Glenview State Bank, 108 Ill. 2d 1, 46, 483 N.E.2d 226, 247 (1985) [dissenting opinion].
In view of the foregoing 8 8 8 authoritative opinions' and the express reference in 8 8 8 13 — 204(d) to the vested ‘rights of any party,’ we conclude the General Assembly sought to protect the rights of parties seeking contribution under the time limits previously in existence if the cause of action for contribution accrued prior to the amendment. We are troubled by the fact that our interpretation renders meaningless the provision of 8 8 8 13 — 204(d) indicating that subsection applied retroactively. Retroactive application of new legislation concerning limitations and repose and retention of vested rights under the prior legislation involving the same matters are inherently inconsistent.
In any event, statutes are presumed to have only a prospective application, and the presumption is overcome only by clear language 8 8 8 [citations omitted]. 8 8 8 13 — 204(d) clearly states the section is to have retroactive effect, but the required clarify is destroyed by the language 8 8 8 ‘shall not operate to affect statutory limitations or repose rights of any party.’ [Cite omitted.]”

The Respondent, in turn, contends (1) that section 13 — 204 applies to this case without retroactive application, because this indemnity claim did not accrue until after the effective date of the section 13 — 204 amendment when the Claimant paid the liability for which indemnity is sought, and that therefore Ganci is inapplicable; and (2) that the Ganci holding directly conflicts with the language of section 13 — 204(d) which mandates retroactive effect to “all pending actions without regard to when the action accrued * *

The Claimant replies by pointing out that Illinois contribution and indemnity actions, unlike most other causes of action, accrue for purposes of allowing actions to be brought and usually for limitations purposes before actual damages are suffered by way of payments made or judgments imposed, citing Highland v. Bracken (4th Dist. 1990), 202 Ill. App. 3d 625, 148 Ill. Dec. 104, 106-107, 560 N.E.2d 406; Bonfield v. Jordan (4th Dist. 1990), 202 Ill. App. 3d 638, 148 Ill. Dec. 110, 560 N.E.2d 412; and Hahn v. Norfolk & Western Railroad Co. (5th Dist. 1993), 241 Ill. App. 3d 97, 181 Ill. Dec. 610, 608 N.E.2d 683. The opinion (for contribution actions) in Highland v. Bracken, supra, is instructive:

“The 808 issue 8 8 8 is whether the cause of action for contribution ‘accrues’ for purpose of triggering the statute of limitations, at the time of injury, or whether it remains inchoate until the occurrence of certain other events. Black’s Law Dictionary defines ‘accrue’ as to vest or to mature 8 8 8.’ A cause of action accrues when facts exist which authorize one party to maintain an action against another.’ (Meeker v. Summers (1979), 70 Ill. App. 3d 528, 529, 26 Ill. Dec. 919, 920, 388 N.E.2d 920, 921.)
A contribution action lies, for example, when (1) a payment is incurred or made in whole or in part on a common obligation, or something is done in the equivalent, so that this payment made by the joint obligor is in excess of his share of the common obligation 8 8 8 or (2) the party bringing the contribution action is sued by a complaining party, giving him notice of the nature and the potential amount of the obligation necessitating the contribution action 8 8 8.
Therefore, 8 8 8 while this right of contribution exists from the time of injury, it exists in inchoate form, and does not ripen, mature, vest, or accrue, until either payment is made * * * or an action is brought against the defendant. * 1

Thus Claimant contends, with some irony, that its cause of action against the OSG accrued in March,' 1993, well before the January 1, 1995, effective date of the new statute, making any application of the amended section 13 — 204 to this case retroactive.

Analysis

Four points are clear (and undisputed) on this convoluted statute of limitations issue:

(1) the amended section 13 — 204 is now the Illinois law of limitations for contribution and indemnity actions and must be addressed first;

(2) under the express terms of section 13 — 204(c), the limitation of section 13 — 204 “preempts] * * * all other statutes of limitations or repose” for contribution and indemnity actions, and therefore supersede^] the two-year limitation of section 22(g) of the Court of Claims Act (705 ILCS 505722(g)), if the amended section 13— 204 is applicable;

(3) section 13 — 204 now mandates retroactive application, subject only to the “savings clause” in section 13 — 204(d); and

(4) the precise meaning of the retroactivity and savings clauses of section 13 — 204(d), particularly the term “fully vested” and its relationship to “accrued,” are ambiguous at a minimum and may be, as Ganci said, “inherently inconsistent.”

We must therefore determine the meaning of the facially unclear and arguably conflicting language of section 13 — 204(d)—unless we accept Respondents argument that the application of section 13 — 204(b) to this indemnity claim is a prospective rather than retroactive application. However, this Court does not accept that view. We conclude that the Claimant is correct that its indemnity claim accrued before the January 1, 1995, effective date of the amendment under the law then applicable. Application of section 13 — 204 to this accrued claim is therefore a retroactive application.

Before turning to the section 13 — 204(d) language, we note that a 1st District decision — in addition to the 4th District decision in Ganci, supra — has applied section 13 — 204(d) to deny retroactive effect. Lin v. City of Chicago (1st Dist. 1995), 276 Ill. App. 3d 13, 212 Ill. Dec. 313, 657 N.E.2d 8, held that the right of a third-party plaintiff (a defendant in the underlying tort case) to bring a contribution action had become “fully vested” before the effective date of the new section 13 — 204 and was thus protected from its retroactive application by section 13— 204(d). However, Lin did not explain how that right had become “fully vested,” and did not even discuss the point.

The sole Illinois precedents are, unhappily, less than dispositive of the issue. The Lin opinion provides no interpretative guidance, as noted above. The Ganci opinion was clearly troubling to that Court and is to this Court. Three aspects are noted here:

First, on the basis of a perceived “inconsisten[cy]” in the statutory language, Ganci nullified (“renders meaningless”) a concededly clear legislative mandate of retroactivity. Ganci did so by construing the section 13 — 204(d) savings clause so broadly as to eviscerate the retroactivity clause in the same sentence. We believe that the duty of this Court is to give effect, if possible and as much as possible, to all of the statutory words and phrases enacted by the legislature- — especially when the competing language was simultaneously enacted in a single legislative act.

Second, as Respondent urges, Ganci’s holding, which insulates all pre-1995 “accrued” indemnity claims from application of section 13 — 204, flies directly in the face of the unambiguous mandate that section 13 — 204 “shall be applied retroactively 888 [to] all pending actions without regard to when the cause of action accrued 8 8 8.” (735 ILCS 5/13 — 204(d), emphasis added.) We do not believe the Ganci construction is permissible.

Third, having found the statute unclear and internally conflicting, the Ganci Court mysteriously did not seek to resolve that interpretative dilemma by looking to the legislative history for some hint of legislative intent.

Ganci, however, aptly observed that the savings clause is a limitation on the retroactivity clause, and that there is a tension between the two clauses of section 13— 204(d). We agree, but focus on the ambiguity of the key terms in these clauses. The problems in section 13— 204(d) arises from (1) the phrase “statutory limitations or repose rights of any party which have fully vested” in the savings clause, and (2) the term “accrued” in the retroactivity clause (emphases added).

As Ganci noted, the term “vested” as applied to “limitations or repose rights” is not an established term of art. The notion of “vested limitations rights,” standing alone, seems to denote defendants’ right not to be sued after expiration of a statute of limitations. Our Supreme Court has held that expiration of a statute of limitations creates a vested right in a prospective defendant to be free of suit, City of Chicago v. Collin (1992), 302 Ill. 270, 274, 134 N.E. 751; Sepmeyer v. Holman (1994), 162 Ill. 2d 249, 205 Ill. Dec. 125, 642 N.E.2d 1242; see First of America Trust Co. (1996), 171 Ill. 2d 282, 215 Ill. Dec. 639, 664 N.E.2d 36. As noted in Ganci, supra, a statute of limitation or repose grants rights only to defendants, and only limits plaintiffs’ rights. Still, some Courts have occasionally referred to plaintiffs’ rights as “vested,” e.g., the Lin decision, supra. In the final analysis, there is no inherent reason why “vested limitations rights” may not refer to plaintiffs’ rights as well as defendants’ rights. We find the phrase “vested # * limitations or repose # # # rights,” as used in section 13 — 204(d), to be ambiguous.

We also agree with Ganci that the phrase “any party” in section 13 — 204(d) suggests that the “vested limitations or repose rights” phrase applies to plaintiffs as well as defendants. However, the words “any party” do not lead to any particular construction of the savings clause.

In our view, the ultimate tension between the two component clauses of section 13 — 204(d) boils down to the simultaneous use of “accrued” in the retroactivity clause and “fully vested” in the savings clause. There is no clear settled meaning for these terms, either in plain meaning terms or as terms of art, that can reconcile the two clauses. The seeming conflict is exacerbated by the fact that “accrued” and “vested” are sometimes used in the case law to mean the same thing.

We can only conclude that the legislative intent was — clearly—to mean something different by the two expressions when simultaneously enacted in a single legislative act in a single statutory sentence addressing one subject. However, having concluded that “fully vested” must be read to mean more than “accrued,” it remains unclear on the face of the statute just what that difference was intended to be. With the statute exhaustively unclear on its face, it is incumbent on the Court to examine the legislative history for a clue to the intent.

The Legislative History of Section 13 — 204

It turns out that the legislative history of the “retro-activity” and “savings” clauses of section 13 — 204(d) as enacted in P.A. 88-538 is straightforward if somewhat lengthy, as it involves two annual sessions of the General Assembly.

The legislative history, however, originates in our Supreme Court, following its divided 4-3 decision in Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, which applied the derivative limitation to a contribution claim in a medical malpractice lawsuit. In its 1991 Annual Report, the Court recommended to the General Assembly that the statute of limitations for contribution actions should be revised. The Court stated as follows:

“In Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, our Court ruled that an action for contribution must be filed within the four year time limit specified in section 13 — 212 of the Code of Civil Procedure (735 ILCS 5/13 — 212(a).) The dissenting opinions (Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 471 (Clark, J. dissenting), 473 (Calvo, J., joined by Ward and Clark, JJ., dissenting), believed that in this case such an interpretation denied a constitutional right for ‘certain remedy.’ Justice Clark, in his dissent, observed that the majority’s opinion in interpreting the statute of repose effectively precludes contribution actions in medical malpractice cases where a party files the complaint on or near the last day of the repose statute. See also Pederson v. West (1990), 205 Ill. App. 3d 200.
The Supreme Court invites the General Assembly to consider whether * * * to amend the 600 time limit for filing contribution actions.”

In response, a comprehensive proposal was drafted which the General Assembly passed as House Bill 1162 in its spring, 1993 session. H.B. 1162 proposed to create a single uniform two-year statute of limitations for both contribution and indemnity actions by amending section 13 — 204 of the Code of Civil Procedure (735 ILCS 5/13 — 204), with a retroactivity clause in section 13— 204(d). H.B. 1162 was amendatorily vetoed by the Governor on August 20, 1993. The General Assembly did not take up the amendatoiy veto in its fall session, and the legislation died. See Legislative Synopsis and Digest, 88th Ill. Gen. Assembly, House Bill 1162 (1993 Final Ed.) at 1240-1241.

In the next annual session, the General Assembly en-grafted the text of the former H.B. 1162 onto a pending bill, Senate Bill 433, as House Amendment No. 1, and also incorporated the text of the “amendments that were presented by the Governor” to H.B. 1162. That text included the “savings clause” language that the Governor had proposed to add to the retroactivity clause of section 13 — 204(d). The Governors “savings clause” language was adopted verbatim in S.B. 433, and now comprises the second clause of section 13 — 204(d). (Transcript of Debates, 88th Illinois General Assembly, House of Representatives [85th Legislative Day, October 13, 1993], at 53 (remarks of Rep. Kaszak on Second Reading [amendments]); id. (91st Legislative Day; November 4, 1993), at 10 (Remarks of Rep. Turner on Third Reading [final passage]); see also, Transcript of Debates, 88th General Assembly, Senate (88th Legislative Day, January 13, 1994), at 5-6 (Remarks of Sen. Hawkmson, on Concurrence with House Amendments [final passage].) Senate Bill 433, with the former H.B. 1162 and the Governor’s changes included, was signed into law on March 31, 1994, and became Public Act 88-538.

Governor Edgar is thus the author of the section 13 — 204(d) savings clause — including its oblique “fully vested” language — which the General Assembly adopted in 1994. The Governor’s explanation of his language is the determinative (and only) expression of legislative intent. Governor Edgar’s statement of the purpose of this language in his August 20, 1993, veto message on H.B. 1162 was as follows:

“In addition, House Bill 1162 currently provides that the bill takes effect immediately and applies to all pending actions. This provision unfairly cuts off the rights of many parties in currently pending actions who have justifiably relied on the currently existing law, and also raises constitutional issues. The bill should be revised to address these problems.”

Based on this explanation, it is clear that the intent to protect “fully vested” rights of “any party” was focused on parties already in litigation as of the effective date of the amended section 13 — 204, i.e., plaintiffs or counter-plaintiffs or third party plaintiffs who had already filed contribution or indemnity actions by January 1, 1995, in reliance on the then-existing limitation statutes. With “fully vested” rights seen clearly to refer to rights of plaintiffs that had filed actions, the two clauses of §13 — 204 are rendered consistent, and the seeming conflict between “fully vested” and “accrued” is reconciled. In this light, “fully vested” means “accrued and timely filed before January 1, 1995.” The veto message explains, at least inferentially, why the Governor selected an untraditional phrase to effect the intended untraditional meaning.

Nevertheless, we find that as applied to plaintiffs (and we do not address these issues as applied to defendants), the Governors “saving clause” as enacted by the General Assembly in section 13 — 204(d) prohibits the retroactive application of section 13 — 204 to claims that were pending as of January 1, 1995, when the amended section 13 — 204 took effect. We will give effect to that limited construction of the section 13 — 204 savings clause, and will not expand it further to encroach into— or to nullify — the retroactivity clause which is of equal dignity as both were simultaneously approved by both the legislature and the Governor.

Conclusion

On this construction of the statute, we conclude that section 13 — 204 applies to this case, as the Claimants indemnity claim was not filed before January 1, 1995. Accordingly, we must find that this claim is barred, as it was filed after March, 1995 when the two-year statute of limitations under section 13 — 204(b) of the Code of Civil Procedure (735 ILCS 5/13 — 204(b)) expired. We note that no constitutional attack has been advanced against the application of section 13 — 204 to this case, and our decision does not opine on any constitutional issue.

For the foregoing reasons, it is hereby ordered:

1. Respondents motion to dismiss count II of the amended complaint as barred is granted; and

2. Count II of the amended complaint is dismissed.

       Also citing Smith v. Jones (1986), 113 Ill. 2d 126, Currie v. Lao (1992), 148 Ill. 2d 151, Ellis v. Board of Governors (1984), 102 Ill. 2d 387, and S.J. Groves & Sons, Co. v. State (1982), 93 Ill. 2d 397.

       The Appellate Court also rejected the Bank’s contention that the Guardianship and Advocacy Act (20 ILCS 3955/1 et seq.) contained an implied waiver of sovereign immunity as to the OSG. (App. Ct. Order, at 4.)

       We recognize that the complaint inferentially seeks recovery from OSG funds (i.e., State funds): the complaint alleges (par. 12) that the remaining $31,389.31 of funds of the Blaser Trust that the OSG held were returned to the trustee during the Circuit Court litigation.

       Although this Court has firmly held that we lack equitable powers — i.e., the Illinois Court of Claims has not been vested with statutory jurisdiction to grant equitable remedies — in Garimella v. University of Illinois (1997), 50 Ill. Ct. Cl. 350, there is an arguably open issue of our adjudicatory jurisdiction to entertain equitable actions recognized by Illinois law where such equitable grounds lead-to one or more of the remedies that this Court is empowered to grant, at least where the underlying equitable action falls within our statutory jurisdiction set forth in section 8 of the Court of Claims Act. (735ILCS 505/8.) (See, Garimella, supra, Epstein, J., concurring.)

       Under the pre-1995 law, section 13 — 204 applied only to contribution actions between joint tortfeasors (and that limitation commenced to run only upon actual payment of an excess share of a joint liability). This claim was not governed by the former section 13 — 204.
      Moreover, under pre-1995 law, there was no single limitation for contribution and indemnity actions. Illinois Courts commonly held that the limitation for contribution and indemnity actions followed (derivatively) the limitation that was applicable to die underlying action that gave rise to the particular contribution or indemnity claim; thus the limitation period varied from case to case. See, e.g., Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450 (applying four-year medical malpractice repose period); Vogt v. Corbett (1990), 138 Ill. 2d 482, 563 N.E.2d 447 (applying Hayes to one-year limitation of Local Government and Governmental Employees Tort Immunity Act).
      In this Court, before the amended section 13 — 204 took effect, contribution and indemnity claims were subject to the two-year limitation of section 22(g) of the Court of Claims Act (705ILCS 505/22(g)) unless a shorter statute otherwise applied.

       We also observe that Ganci’s treatment of section 13 — 204 as a categorical shortening of the prior limitation periods for contribution and indemnity claims — thus affecting only plaintiffs' rights — is incorrect. Because section 13 — 204 adopted a uniform two-year limitation period to replace the former variable limitation for contribution and indemnity actions, the impact of the new section 13 — 204 may be to shorten or lengthen the prior limitation. Pre-1995 Illinois law applied a derivative limitation (adopting the limitation applicable to the underlying tort claim), which could vary from one year, e.g., in some actions against local governments, to five or more. See, Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450; Vogt v. Corbett (1990), 138 Ill. 2d 482, 563 N.E.2d 447. ‘Vested rights” in section 13 — 204(d) thus appears somehow to apply to both plaintiffs and defendants.

       We note the prescient comments of the Illinois Bar Associations writers, reviewing the H.B. 1162 amendatory veto, who predicted that “[t]he meaning of this paragraph is likely to cause a great deal of consternation among attorneys and judges alike.” IDC Quarterly, 4th Qtr., 1993 (Legis. Comm. Report; Hoffman and Claves, 29.)


author: Frederick, J.

text:
    (No. 97-CC-0942
    Patrick Cahel, a minor by his father and next friend, Frank Cahel and Jessica Cahel, Claimants, v. The State of Illinois, Respondent.

      Order filed March 3, 1999.

    Becky Lynn Dahlgren, for Claimants.
    Jim Ryan, Attorney General (Jacqueline K. Williams, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Frederick, J.

This cause comes before the Court on Respondents motion for summary judgment and Claimants response thereto, and the Court having reviewed the entire Court file and the motion and briefs, and the Court being fully advised in the premises, wherefore, the Court finds:

1. That Claimants filed their claim sounding in tort on October 21,1996.

2. That on September 11, 1987, Michael Demchuk was released from Madden Health Center, a facility under the control of the Illinois Department of Human Services in Hines, Illinois.

3. That during Mr. Demchuks 11 total admissions to Madden Health Center, he displayed only three instances at the facility which could be considered violent.

4. That the last such reported violent incident occurred in April of 1984.

5. That there were no medically reported violent incidents over the next three and one-half years.

6. That Mr. Demchuk displayed no violent tendencies during his final admission at Madden Health Center.

7. On September 12, 1987, Michael Demchuk stabbed eight-year-old Patrick Cahel 72 times.

8. That the Respondent did not know and could not have known that the patient would stab the child.

9. That there are no material issues of fact and Respondent is entitled to judgment as a matter of law.

10. That there is no evidence in the record which even suggests violence by Michael Demchuk towards Patrick Cahel.

11. That Patrick Cahel was not a potential victim who was readily identifiable by Respondent.

Analysis of the Law

The burden of proof in a negligence case is on the Claimant and the Claimant must prove by a preponderance of the evidence that the State was negligent and that such negligence was a proximate cause of Claimants injury. Hoekstra v. State (1985), 38 Ill. Ct. Cl. 156.

Claimants claim in this cause is a claim of inadequate psychiatric treatment and diagnosis leading to the negligent release of Michael Demchuk and for the failure of the State to protect Patrick Cahel from harm at the hands of Michael Demchuk. These are allegations of psychiatric malpractice and must be proven by expert testimony. (Woods v. State (1985), 38 Ill. Ct. Cl. 9.) In Woods, supra, the Court found that the State was not liable because there was nothing in the record to show the Respondent knew or should have known that the patient was suicidal. There was no expert testimony elicited to show that the symptoms exhibited by the patient should have indicated to the Respondent that the patient was suicidal. Because of this lack of proof, the Court found that the decedents committing suicide was not foreseeable and denied the claim.

This Court also denied liability in a mental patient suicide case where the claim was based on the death of a mental patient by suicide subsequent to his escape from a mental health center. The Court held that to prevail, the Claimant must prove there was a lack of proper and reasonable care and that the State knew or should have reasonably been expected to know of or predict the escape. Because there was no proof that the Respondent knew or should have known the individual was contemplating escape or a suicide attempt, the claim was denied. Calvin v. State (1982), 35 Ill. Ct. Cl. 611; Gaiser v. State (1993), 45 Ill. Ct. Cl. 10.

While the facts of the preceding cases deal with suicide attempts by mental patients and not attacks on third parties by a released patient, the law stated therein is applicable to both types of cases.

The State is not an insurer of the safety of patients under the care of the Department of Mental Health, but it owes patients a duty of protection and must exercise reasonable care towards such patients according to their known condition or the condition, which through reasonable care, ought to be known. In Reynolds v. State (1983), 35 Ill. Ct. Cl. 647, the Court denied liability in a mental patient suicide case where Claimant failed to prove a negligent act committed by the State and where Claimant failed to prove a causative factor between any alleged negligence and the subsequent death by suicide of Ms. Reynolds. See also Stevens v. State (1976), 31 Ill. Ct. Cl. 458.

In a medical malpractice claim, the Claimant must prove by a preponderance of the evidence that there was a breach of a duty, the standard of care, the Respondents deviation from the standard of care, and that the deviation was a proximate cause of tire Claimants injury. The standard of care is that care which is provided by reasonably well-trained medical providers in the same circumstances in a similar locality. Williams v. State (1994), 46 Ill. Ct. Cl. 221.

The State is not the insurer of mental health patients. In Ingram v. State (1979), 33 Ill. Ct. Cl. 134, tire Court denied liability where a patient admitted to ISPI committed suicide. The decedent was admitted and later hung himself in the facility. The Court found, based on the evidence and medical records, that there was not sufficient evidence offered to show that the State should have known that the decedent had self-destructive thoughts.

The Claimant has the burden of showing that the Respondent failed to exercise reasonable care for the patient given his known condition. Gaiser v. State (1993), 45 Ill. Ct. Cl. 10; Marasovic v. State (1993), 45 Ill. Ct. Cl. 154.

The deposition transcripts and other evidence in this case presented to the Court for the summary judgment motion clearly show that the staff at the Madden Health Center was not aware that there was a strong likelihood that Mr. Demchuk would inflict serious harm upon himself or others. Without such knowledge, Respondent did not have a duty to take preventative measures to protect Patrick Cahel.

Therefore, it is ordered:

A. That Respondent’s motion for summary judgment is granted.

B. That judgment is entered in favor of Respondent and against Claimant.

C. That the claim of Claimants is denied.


text:
    (No. 97-CC-1359
    Edward Anthony Zanghi, Claimant, v. The State of Illinois, Department of Corrections, Respondent.

      Opinion filed December 4, 1998.

    Edward Anthony Zanghi, pro se.

    Jim Ryan, Attorney General (Michael Rocks, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Epstein, J.

This claim is before the Court for final decision after trial before our Commissioner. Claimant Edward Anthony Zanghi’s complaint against the Department of Corrections (“IDOC”) seeks reimbursement, as an IDOC employee, for damage to his personal property allegedly suffered in the fine of duty, in the amount of $185.

Trial was held December 18, 1997. Claimant appeared and testified that on June 20, 1996, he was employed by IDOC as a parole officer. Claimant asserts that he was acting pursuant to his employment at all times material. Mr. Zanghi testified that he parked his State vehicle outside the IDOC’s Special Intensive Supervision Unit within view of the facility’s security cameras, and that sometime between 7:20 and 8:20 a.m. an unknown person broke the vehicle’s window and stole his personal property which he identified and valued as follows:

Nylon Suitcase $ 35

Calculator $ 15

Rolodex-electronic diaiy & memory pad $ 65

Flashlight $ 10

Personal Pager $ 35

Stationery supplies, Cross pen set $ 25

Total Value $185

Claimant filed a claim with the IDOC Claims Committee, which denied his claim for failure to establish that the theft was the direct act of an inmate.

At the hearing, Claimant Zanghi cited the union contract between IDOC and its parole agents, particularly article XXV, section 5, which provides as follows:

“Section 5. Damage to Personal Property
In accordance with the current agency practices and the amounts provided for thereunder, Employees shall be reimbursed for the cost of any personal property destroyed or damaged in the line of duty. The Employer will also endeavor to provide a secure place for storing wearing apparel.
Upon request, agency labor/management meetings may review the establishment or revision of conditions for reimbursing employee claims deriving from damages to or destruction of personal property articles, by the direct action of residents or clients against the person of the employee, including time limits for reporting and rates of reimbursement.”

The union contract and the administrative directive 01.02.122 referred to in the Department Claims Committee proceedings refer specifically to the reimbursement for loss or damages deriving from the direct action of residents or clients. Although it is arguable that the language of the union contract, standing alone, might be susceptible to a broader reading, it is difficult to perceive a clear application of the contract language, “destruction] or damage[] in the fine of duty,” to encompass any loss suffered by an IDOC employee merely because he or she was on duty at the time. Even without the referenced “agency practices,” it is apparent that “in the line of duty” refers to the event that caused the property loss or damage.

There is simply no evidence in this case that any loss or damage to the Claimants property was suffered “in the line of duty.” In this case the offender was, and is, unknown, as are the circumstances of the theft or loss itself. Moreover, although the Claimant may well have been “on duty” at the time, the incident took place outside the institution which makes it at least unlikely that the loss occurred “in the line of duty” or that a resident or client was the perpetrator as IDOC maintains to be necessary.

Claimant contends that the IDOC had a video surveillance camera which would have taped the incident and the offender had it been working on the day of the theft. However, the Claimant failed to establish that IDOC had a legal duty to protect Claimants personal property in a parked vehicle, or anywhere else, outside of a State facility. The camera is irrelevant.

On the evidence presented, this Claimant has failed to prove any claim against IDOC, and accordingly, this claim must be denied. For the reasons set forth above, it is hereby ordered: this claim is denied, and forever barred.