text:
    (No. 80-CC-2062
    Eva-Tone, Evatype, Inc., Claimant, v. The State of Illinois, Respondent.

      Order filed October 1, 1980.

    Logan Marquarut and Cline, for Claimant.
   Roe, C. J.

This cause coming on to be heard on the motion of Respondent to dismiss, said motion having been previously held in abeyance pending submission to the Court of the contract which gave rise to this cause of action, it appearing to the Court that due notice has been given, and the Court being fully advised in the premises;

The Court hereby finds:

1. That Rule 14 of the Rules of the Court of Claims of the State of Illinois states that departmental reports issued by State departments or agencies are considered prima facie evidence of the facts set forth therein.

2. That the departmental report issued by the Illinois Office of the Secretary of State, Research Department, a State department or agency, attached hereto and made a part hereof, establishes that this claim is in excess of the contract between the Claimant and the Illinois Secretary of State Research Department.

3. That this departmental report is prima facie evidence of the facts set forth therein.

4. That the Claimant has filed no response to the motion to dismiss.

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


source: Caselaw Access Project

author: Roe, C. J.

license: Public Domain

text:
    (No. 80-CC-2066
    Pete Topnes, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 6, 1981.
    Pete Topnes, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (William P. King, Jr., Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This is an action brought by Claimant, Pete Topnes, pursuant to the provisions of Ill. Rev. Stat., ch. 15, pars. 210.10, 210.16, to recover $150.00, being the amount of a State warrant issued to him but never received by him.

The pertinent statutory sections are the following:

“10.10 (a) If any comptroller’s warrant is lost, mislaid or destroyed, or becomes void after issuance, so that it cannot be presented for payment by the person entitled thereto, the comptroller, at any time before that warrant is paid by the State Treasurer, but within one year of the date of issuance, may issue a replacement warrant to the person entitled thereto.” Emphasis supplied.
“10.16 If the comptroller refuses to draw and issue a replacement warrant under Section 10.10 ° * * persons who would be entitled under Section 10.10 to request a replacement warrant may file an action in the Court for the payment of the sum indicated due on the warrant e ”

The facts developed at the hearing of this cause are as follows:

On November 2, 1977, Warrant Ab7708104 was issued to Claimant in the amount of $150.96. The check represented a senior citizen grant. Claimant never got the check. At an unspecified date in 1977, however, the check was deposited in an account at the North Community State Bank in Chicago, Illinois, with endorsement: “Pete Topnes North Ave apt good for deposit only.”

Mr. Topnes lives in an apartment building at 2659 West North Avenue, Chicago, Illinois. The tenants pick up their mail in a store located on the first floor of the building and operated by someone connected with the management of the building.

Mr. Topnes never has done business with the North Community State Bank, and testified additionally that he did not authorize anyone to deposit his check in an account at the North Community State Bank. The record does not show the owner of the account in which the check was deposited. From the wording of the endorsement a reasonable “conjecture” would be that someone signed Mr. Topnes’ name and deposited the check in an account set up for the apartment building, possibly for the deposit of rents.

However, how the check happened to be deposited in someone else’s bank account without Claimant’s authorization is irrelevant.

The statute makes clear that the Comptroller can issue a new warrant only if the original warrant has not been paid by the State Treasurer. Further, the Comptroller, “before issuing the replacement warrant, shall issue a stop payment order on the State Treasurer and receive a confirmation of the stop payment order on the original warrant from the State Treasurer.” Ill. Rev. Stat., ch. 15, par. 210.10. The warrant was long since paid by the State Treasurer when Mr. Topnes filed his claim with the Court of Claims on May 20, 1980.

It is apparent from looking at Claimant’s exhibits 4, 5, and 6 that the signature “Pete Topnes” on exhibit 4 was written by someone other than Claimant. If that person signed Claimant’s name and then beneath it added his own identifying endorsement “North Ave apt good for deposit only” so that the check could be deposited in that person’s account — all without Mr. Topnes’ knowledge or consent — then Mr. Topnes’ cause of action is against that person, or possibly the North Community State Bank. But the State of Illinois is in no way responsible for this state of affairs.

Under the foregoing circumstances this-Court must, and hereby does, deny this claim.


author: Poch, J.

text:
    (No. 80-CC-2147
    Delta Casualty Company, as subrogee of Willie Spivey, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 12, 1981.

    Van Emden, Busch and Van Emden, for Claimant.
   Poch, J.

This matter comes before the Court upon the joint stipulation of the parties, in which the parties have agreed upon the liability of the Respondent and the amount of damages sustained by the Claimant.

It appearing to the Court that the facts and the law as to Respondent’s liability and the amount due to Claimant are not in dispute, and that the joint stipulation entered into by the parties is fair and reasonable.

The Court hereby awards Claimant, Delta Casualty Company as subrogee of Willie Spivey, the amount of $300.00.


text:
    (No. 81-CC-0079
    Norman Van Nattan, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 17, 1981.

    William M. Giffin, for Claimant.
    Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

Claimant brought this action to recover lost wages which allegedly were due him pursuant to certain reemployment rights derived from various legal proceedings. The case was set for hearing and heard on October 23, 1980, before Commissioner Robert A. Barnes, Jr., of the Court of Claims. No additional testimony or evidence was produced other than the exhibits, affidavits, and stipulations filed at said hearing. Based upon that record and the report of the commissioner, we find the facts to be as follows.

Claimant was employed by the Illinois State Fair Agency. The record is silent as to the exact position he held. His position was abolished by an alleged reorganization of the agency by its manager, Nicholas Stone, on or about February 28, 1977. The record is somewhat vague as to exactly what legal proceedings Claimant brought in seeking redress. However, it is undisputed that he obtained re-employment rights through the Civil Service Commission of the State of Illinois beginning on or about January 1, 1978. The State Fair Agency and Nicholas Stone were notified by appropriate parties of Claimant’s right to re-employment, but Claimant was not actually re-hired until November 1,1978. Claimant is seeking back wages for the interim period.

The reason and circumstances behind the ten-month delay in rehiring Claimant appear at paragraphs six and seven of Claimant’s sworn affidavit which is a part of the record. Said paragraphs essentially read as follows:

“6. That subsequently (after January 1,1978), it developed that Affiant was the victim of a program initiated by Nicholas Stone, as the State Fair Manager, to keep him unemployed or' from being re-employed by the State Fair Agency.
7. That the said Nicholas Stone was so definite in his determination to keep from rehiring Affiant that at the time he was directed to re-employ him by the Department of Personnel and the Civil Service Commission, he contumaciously refused to abide by their orders; and, that the Affiant was not able to return to employment until said Nicholas Stone resigned as State Fair Manager.”

It is undisputed that the above statements are true. No evidence was offered to contradict them.

Attached to Claimant’s complaint is a joint stipulation between Claimant and John R. Block, the Director of the Department of Agriculture, State of Illinois. Said department has now assumed jurisdiction over the State Fair. By stipulation Claimant and Director Block agreed on the amount of employment benefits that Claimant would have obtained had he been rehired as of January 1, 1978 (the date which both parties agreed Claimant’s re-employment rights accrued). The breakdown was stated essentially as follows:

Period from 1/1/78 to 11/1/78

Salary $13,970.00

Retirement 611.79 (7.3%)

Retirement 433.63 (7.76%)

Social Security + 845.19

$15,860.71

Unemployment Compensation - 3,510.00

$12,350.75

From Claimant’s affidavit it appears he met his burden of proof with respect to meeting the requirement that he make sufficient efforts to mitigate his losses and Respondent does not contest this.

Claimant and Director Block also stipulated that Claimant is entitled to the salary payments for such period. The claim was filed in this Court because the fiscal years during which those payments would have been made have closed. Claimant alleged in his complaint that he requested payment from the Department of Corrections but such request was refused on the grounds that the funds appropriated for such services of the State Fair Agency for such payments have lapsed.

Thus, on the surface the facts would seem to present an ordinary lapsed appropriation case. However, the evidence shows that the State Fair Agency lapsed no money for the period at issue, nor was the two percent transfer available as that agency had totally exhausted its funds. In fact, as numerous decisions of this Court on lapsed appropriation claims against the same agency arising out of the same period of time have shown, the State Fair Agency incurred many obligations far in excess of their appropriation for the period.

This issue, therefore, with which we are again confronted is whether or not the Court of Claims has any authority to direct the payment of this claim, sounding of “lapsed appropriation” where no funds from which it would have been paid actually lapsed.

The law is quite clear on this issue. Even though Claimant in equity and good conscience appears to be owed his lost wages we are constrained by law to deny his claim. Where insufficient funds lapse from which payment of a claim would have been made, absent the showing that the claim falls within the narrow exception of being expressly required by law, the claim must be denied. In connection with this we point out that article VIII, section 2(b) of the Constitution of the State of Illinois provides that the General Assembly by law shall make appropriations for all expenditures of public funds by the State. If this Court were to grant an award in the case at bar we would in effect be appropriating funds. Said authority lies solely with the Legislature. The fact that the Legislature honored numerous other claims arising out of the same period as the instant claim and against the same agency by the passage of a special appropriation bill, claims which we had denied, is further support for this position.

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


author: Per Curiam.

text:
    (No. 81-CC-0117
    Livingston County, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 14, 1980.

    C. David Vogel, State’s Attorney (Donald Bernardi, Assistant State’s Attorney, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

The record in this cause indicated the purpose of the expenditure by the State of Illinois for which this claim was filed was for • reimbursement of habeas corpus expenses for residents of the Illinois Department of Corrections who were not committed from Livingston County, and that the Attorney General has entered into a Respondent’s stipulation based upon information forwarded to his office by the Illinois Department of Corrections as evidenced by the departmental report attached to the stipulation by Respondent.

Accordingly, this Court finds that this was a properly . authorized expenditure at prices reasonable, usual and customary in the area where received. No part of this expenditure has been paid and the total outstanding is $101.00. Money to pay this expenditure is to come from the Court of Claims funds pursuant to Ill. Rev. Stat., ch. 65, par. 38.

It is hereby ordered that the Claimant be awarded, in full satisfaction of any and all claims presented to the State of Illinois in the above captioned cause, the sum of $101.00 (one hundred one and no/100 dollars).


text:
    (No. 81-CC-0400
    The City of Litchfield, Illinois, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 2, 1981.

    Ron Scharf, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

The record in this cause indicated the purpose of the expenditure by the Department of Transportation for which this claim was filed was for traffic signal maintenance repairs and that the Attorney General has submitted a stipulation by Respondent based upon information forwarded to his office by said Department, as evidenced by the departmental report attached to the stipulation by Respondent.

Accordingly, this Court finds that this was a properly authorized expenditure at prices reasonable, usual and customary in the area where received. No part of this expenditure has been paid and the total outstanding is $1,911.18. Money was appropriated under appropriation and fund # 011-49426-1200-0000 of which appropriation sufficient funds for the payment of this obligation lapsed and were returned to the State Treasury.

The sole reason said claim was not paid is due to the lapse of the appropriation for the period during which the debt was incurred.

It is hereby ordered that the Claimant be awarded, in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause, the sum of $1,911.18 (one thousand nine hundred eleven and 18/100 dollars).


text:
    (No. 81-CC-0414
    Julius O. Allen, Claimant, v. The State of Illinois, Respondent.

      Order filed October 8, 1980.

    Isham, Lincoln and Beale (Michael J. Gill, of counsel), for Claimant.
   Poch, J.

This matter coming before the court upon motion of Respondent pursuant to the stipulation executed by the parties hereto, and the court being fully advised in the premises:

It is hereby ordered that Claimant be, and he is hereby, awarded the sum of $5,175.00 as and for his damages as set forth in said complaint and stipulation.

It is further ordered that said award shall be in complete satisfaction of all claims which Claimant has, or had, on or about March 24, 1972, or which he may have had at the time of ■ filing his second amended complaint in the United States District Court for the Northern District of Illinois.


text:
    (No. 81-CC-0487
    Small Business Administration, an agency of the United States of America, Claimant, v. The State of Illinois, Respondent.

      Order filed February 20, 1981.

    John H. Germeraad, Assistant United States Attorney, for Claimant.
   Poch, J.

This cause coming on to be heard on the stipulation of the Respondent and the Court being fully advised in the premises finds that the complaint as filed along with the accompanying documentation, which contains a valid order of the United States District Court for the Southern District of Illinois for return of one thousand seven hundred ninety-four and 87/100 ($1,794.87) Dollars establishes prima facie case of the Claimant’s case right to recover. It is also noted that the Respondent in their stipulation affirms the allegation set forth in the complaint.

It is therefore ordered that the Small Business Administration of the United States of America be granted an award of one thousand seven hundred ninety-four and 87/100 ($1,794.87) dollars.


author: Holderman, J.

text:
    (No. 81-CC-0498
    Matthew J. Lyons, Claimant, v. The State of Illinois, Respondent.

      Order dismissing complaint filed December 24, 1980.

      Order reinstating complaint filed April 15, 1981.

      Order dismissing complaint filed June 22, 1981.

    Horne and Karchmar, Ltd., for Claimant.
   Holderman, J.

This matter comes before the Court upon motion of Respondent to dismiss the claim heretofore filed and Claimant’s objection to said motion.

Respondent’s motion to dismiss sets forth that the Claimant failed to file proper notice with the Attorney General’s Office, as required by Ill. Rev. Stat. 1979, ch. 110, par. 48.1(a). Respondent’s motion further sets forth that section 22 — 1 of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.22 — 1), provides that notice of an action for personal injury must be served within six (6) months of the date of the injury upon the Attorney General of the State of Illinois and upon the Clerk of the Court of Claims.

Claimant attached to his objections a copy of a letter, dated March 28,1979, and directed to “The Court of Claims, The State of Illinois, 188 West Randolf Street, Chicago, Illinois, 60601” and states that the original notice of claim was enclosed; also filed was a copy of a certified mail receipt addressed to the “Attorney General, Court of Claims, 188 West Randolph St., Chicago, Illinois 60601” and showing the date of delivery as April 2,1979.

Respondent must concede that proper notice was served upon the Court of Claims by Claimant but not on the Attorney General’s office, as required by statute. The Attorney General maintains a separate office from that of the Court of Claims and it is the Court’s opinion that notice served upon the Court of Claims does not comply with the requisite notice upon the Attorney General of the State of Illinois.

It is hereby ordered that respondent’s motion to dismiss be, and the same is, granted, and this cause is dismissed.

ORDER REINSTATING COMPLAINT

Roe, C. J.

This cause coming on to be heard on the petition of the Claimant, Matthew J. Lyons, by and through his attorneys, Horne & Karchmar, Ltd., for a rehearing and an order to vacate its prior order dismissing the Claimant’s complaint, the parties having been duly notified and the Court being fully advised in the premises.

It is hereby ordered that the order filed on December 24,1980, dismissing the Claimant’s complaint is vacated and the complaint is reinstated.

ORDER DISMISSING COMPLAINT

Holderman, J.

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

The complaint filed in this cause alleges that on October 24,1978, Claimant fell into an excavation located “near or along side of Interstate Highway 70 Eastbound, approximately 50 yards east of the junction of Ill. 55-70 and Illinois 157, in Collinsville, Illinois.” It is alleged further that the area in question was a “worksite”, in regard to which “respondent, its agents, servants and/or employees” had a duty to maintain in a safe manner.

In response to the complaint, Respondent’s motion asserts that the area in question was part of a construction project being performed by two private construction companies, which had control of the area and the construction activities therein. In support of this assertion, Respondent attached to its motion the affidavit of Thomas Grimes, the resident engineer of the project for the Department of Transportation, which verifies the facts set forth in said motion. Respondent states further that Claimant did not seek recovery from either one of the private construction companies, and that in failing to do as such, Claimant has failed to exhaust remedies as required by the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439), and the Rules of the Court of Claims.

It appears to the Court that since the area in question was under construction by and in the control of the two private construction companies, Claimant clearly had a cause of action identical to the claim herein which could have been brought against one or both companies in a court of general jurisdiction. Since the cause of action arose on the date of the accident, October 24, 1978, Claimant had until October 24,1980, under the applicable limitations period, in which to pursue said cause of action, but did not do so. The limitations period having now expired, Claimant can no longer pursue this other remedy.

The Court notes that a notice of intent to file this claim was filed on April 2, 1979, approximately 18 months in advance of the end of the limitations period applicable to this claim and a claim that could have been filed against the third parties previously mentioned. It is evident, therefore, that Claimant was represented by counsel for at least 1½ years before the end of the limitations period. This appears to have been a more than adequate amount of time for Claimant or his attorneys to investigate the claim, file the complaint, and conduct discovery. By so proceeding, the cause of action against the construction companies would easily have become apparent. Instead, Claimant waited until September 5, 1980, seven weeks before the end of the limitations period, to file the complaint, and conducted no discovery.

The requirement that Claimant exhaust all available remedies prior to seeking a determination in this Court is clear and definite in its terms. It is apparent to the Court that Claimant had sufficient time to both become aware of his other remedies and to pursue them accordingly. The fact that Claimant can no longer pursue those remedies cannot be a defense to the exhaustion requirement. If the Court were to waive the exhaustion of remedies requirement merely because Claimant waited until it was too late to avail himself of the other remedies, the requirement would be transformed into an option, to be accepted or ignored according to the whim of all claimants. We believe that the language of Section 25 of the Court of Claims Act (Ill. Rev. Stat. 1979, ch. 37, par. 439.24 — 5) and Rule 6 of the Rules of the Court of Claims quite clearly makes the exhaustion of remedies mandatory rather than optional.

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


text:
    (No. 81-CC-0532
    John R. Anderson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 20, 1981.

    John R. Anderson, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

The record in this cause indicated that the purpose of the expenditure by the Department of Corrections for which this claim was filed was for John R. Anderson, an employee of the Department of Corrections participating in the Tax Sheltered Annuity program. $145.00 per pay period is deducted from his salary and sent directly to the vendor of these annuities. The two (2) payments totalling $290.00 for the month of June, 1978, were not sent before the appropriation lapsed and the Attorney General has submitted a stipulation by Respondent based upon information forwarded to his office by said Department, as evidenced by the department report attached to the stipulation.

Accordingly, this Court finds that this was a properly authorized expenditure at prices reasonable, usual and customary in the area where received. Ño part of this expenditure has been paid and the total outstanding is $290.00. Money was appropriated under appropriation and fund number FY ’78 School District 001-43670-1120-00-00 for personal services of which appropriation $7.00, and yes, a transfer could have been requested from 001-42670-1300-000 School District commodities where there was $4,505 available unobligated on September 30,1978, lapsed and was returned to the State Treasury.

The sole reason said claim was not paid is due to the lapse of the appropriation for the period during which the debt was incurred.

It is hereby ordered that the Claimant, John R. Anderson, be and is hereby awarded, in full satisfaction of any and all claims presented to the State of Illinois hereby the sum of $330.00 (three hundred thirty dollars and 00/100’s).


text:
    (No. 81-CC-0587
    Personal Products Co., Claimant, v. The State of Illinois, Respondent.

      Order filed June 11, 1981.

    Thomas, Wallace, Feehan and Baron, Ltd., for Claimant.
   Roe, C. J.

It is hereby ordered that Claimant, Personal Products Company, be and is hereby awarded, in full satisfaction of any and all claims presented to the State of Illinois hereby the sum of eighteen thousand, eight hundred twenty seven dollars and eighty five cents ($18,827.85).


text:
    (No. 81-CC-0630
    Bruce J. Osher, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 15, 1981.

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

This claim arose out of several alleged acts of negligence on the part of the State which were said to have caused Claimant severe and permanent personal injuries. On December 10, 1980, we entered an order granting a motion by Respondent to dismiss on grounds that the notice requirements of section 22 — 1 (Ill. Rev. Stat., ch. 37, par. 439.22 — 1), were not complied with.

Claimant moved to vacate said order and, in support of his motion, argued that a waiver might have occurred, and requested an additional 45 days to ascertain its existence. Respondent objected on two grounds: the first attaching the timeliness of Claimant’s motion to vacate, and the second being directed to Claimant’s argument for a waiver.

We do not find it necessary to address the first objection by Respondent. Even if we assume that the motion to vacate was filed on time and that insurance existed, we have held in Elliston v. State of Illinois, No. 76-CC-0555 (filed June 12, 1978), that the waiver relating to municipalities is inapplicable to the State.

Accordingly, Claimant’s motion to vacate is hereby denied.


text:
    (No. 81-CC-0753
    Mabel Doll Claimant, v. The State of Illinois, Respondent.

      Order filed June 26, 1981.

    John Olivero, for Claimant.
   Poch, J.

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

1. That this claim was filed for grant assistance from the Individual and Family Grant Program;

2. That the Claimant has previously received $850.00 from the Individual and Family Grant Program;

3. That under section 408 of the Disaster Relief Act of 1974 (42 U.S.C. 5178), pursuant to which Individual and Family Grants are made, no individual or family may receive more than $5,000.00 for any one disaster;

4. That no genuine issue of fact exists as to the amount of the award to which Claimant is entitled;

It is therefore ordered that the sum of $4,150.00 (four thousand one hundred fifty dollars and no/100) be and is hereby awarded to Claimant Mabel Doll in full satisfaction of any and all claims presented to the State of Illinois under the above captioned cause.


text:
    (No. 81-CC-0945
    Louis B. Bojkovsky, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 23, 1981.

    Louis B. Bojkovsky, pro se, for Claimant.

      Tyrone C. Fahner, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This cause comes before the Court as a result of automobile damages incurred while the automobile was parked in a designated parking area of Horseshoe Lake Recreation Area in Madison County, Illinois, operated by the State of Illinois. This claim is for $120.00 in damages to said vehicle, court costs and other related expenses.

Rule 14 of the Rules of the Court of Claims of the State of Illinois states that departmental reports issued by State departments or agencies are prima facie evidence of the facts set forth therein.

The departmental report by the Department of Conservation states that Mr. Bojkovsky, the maintenance worker, accidently bumped into his automobile while performing routine park maintenance tasks.

It is a premise of law in the State of Illinois that contributory negligence is a complete bar to recovery. Howell v. State of Illinois, 23 Ill. Ct. Cl. 141, 145.

Pursuant to article VI, section 33 of the Illinois Civil Practice Act, the burden of proof is upon Claimant to prove freedom from contributory negligence and that it was the negligence of the Respondent which caused the accident and resulting damages. The Claimant in this cause is silent as to his freedom from contributory negligence. It appears from the departmental report that, even though Claimant was employed by the State, it was the negligence of the Claimant, himself, which was the proximate cause of the vehicle’s damages.

The claim of Louis B. Bojkovsky is hereby denied with prejudice.


text:
    (No. 81-CC-1096
    Lana Hostetler, Claimant, v. The State of Illinois, Respondent.

      Order filed February 13, 1981.

    Leahy and Leahy, for Claimant.
   Poch, J.

This cause coming on to be heard on the Respondent’s stipulation and the Court being fully advised in the premises finds that this is a claim for the recovery of $17,000.00 which is the amount agreed to between the Claimant and the Office of the Attorney General. This claim stems from an action for an alleged violation of the Claimant’s civil rights pursuant to United States Code 42, section 1983. The Attorney General entered into the settlement pursuant to the authority vested in his office by the General Assembly of the State of Illinois pursuant to chapter 127, section 2 (c). Ill. Rev. Stat. 1979, ch. 127, par. 1302(c).

It is therefore ordered that in accordance with the stipulation settlement entered into between the parties and as set forth as exhibit “B” to the Respondent’s stipulation that this Claimant be granted an award by this Court in the amount of $17,000.00.


text:
    (No. 81-CC-1146
    Charles F. Bruckner & Sons, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 11, 1981.

    John P. Murray, for Claimant.
    Tyrone C. Fahner, Attorney General (Glen P. Larner, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This case comes before the Court on the joint stipulation of the Claimant, Respondent and the Capital Development Board.

The facts are not in dispute. Claimant performed services for Respondent in the Addison Specialized Living Center during the years of 1978 through 1980. Due to problems which arose between Respondent and its general contractor, the project was considerably delayed. The delay was unreasonable and not attributable to any act of Claimant, which nevertheless performed its services in accordance with the contract. Respondent concedes that it was responsible for the delay thereof, and that Claimant incurred greater costs in the performance of its work than it would have if the delay had not occurred.

Both parties agree that Claimant suffered damages in the amount of $36,383.00, and that an award in that amount be granted. Claimant, in receiving this award, agrees to waive and relinquish any right to additional damages from Respondent incurred as a result of the delay caused by Respondent.

The Court is not bound to accept without question a settlement such as this, but, at the same time, it does not desire to interpose a controversy where none appears to exist. The joint stipulation submitted herein appears to be fair and reasonable, and we see no reason to question its validity or propriety.

The Court hereby grants an award to Claimant in the amount of $36,383.00 as full and final satisfaction of this claim.


text:
    (No. 81-CC-1230
    John K. Cargile, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 13, 1981.

      Amended opinion filed April 10, 1981.

    John Stainthorp, for Claimant.

      Tyrone C. Fahner, Attorney General (Sandra Andina, Assistant Attorney General, of counsel), for Respondent. .
   Per Curiam.

This court finds that this claim is for back salary due to the lapse of the appropriation for the period during which the debt incurred, the same having been confirmed by the written report of the Department of Transportation.

After having reviewed the record in this matter including the joint stipulation of the parties, we find that Claimant is entitled to back salary in the amount of $2500.00 plus employer contributions of $353.75 which should be disbursed by the comptroller and credited as follows:

_167L25_ Claimant

-IPO-QO- State Employees Retirement System

-187,50- State Employees Retirement System — State

Contribution

--- State Employees Retirement System — State

Contribution FICA

_166-25_ FICA Tax Fund

-6^50_ State Withholding Tax

-500-00- Treasurer, State of Illnois — Federal Income Tax

It is, therefore, ordered that Claimant be and is hereby awarded the total employee benefit of $2853.75 (two thousand eight hundred fifty-three and 75/100) to be disbursed and credited in accordance with our above finding.

AMENDED OPINION

Roe, C. J.

On February 13,1981, this Court rendered an opinion granting an award of $2,853.75, said sum representing $2,500.00 in back salary plus and minus certain employer contributions and employee withholdings for a total employee benefit of $2,853.75. Upon prompt notification given us by attorneys for both parties and our own independent examination of the claim, we find that the award in this case should represent damages for a tort. It was not a claim for lost wages but a settlement arising out of an alleged violation of Claimant’s civil rights, for which a complaint had been filed in Federal district court. Because either the appropriated funds for payment had lapsed or there were no funds appropriated for payment of this type of matter, Claimant filed in this Court to collect the sum settled for. We approved the settlement but erroneously modified the award as described above.

We hereby amend our opinion of February 13,1981, and order Claimant to be awarded the sum of $2,500.00.


text:
    (No. 81-CC-1366
    County of Randolph, Claimant, v. The State of Illinois, Respondent.

      Order filed May 7, 1981.

    William A. Schuwerk, Jr., State’s Attorney, for Claimant.
   Poch, J.

The record in this cause establishes that this is a claim by Randolph County for reimbursement for numerous petitions for writs of habeas corpus by inmates of institutions located in Randolph County, Illinois, which petitions were presented to the Circuit Court of Randolph County, Illinois, and that these petitions are filed by inmates who are not residents of Randolph County, State of Illinois, at the time of their commitment and were not committed by any Court of the County of Randolph.

The County of Randolph, Illinois, has situated within its borders the Chester Mental Health Center, and the Menard Correctional Center. Section 27.1 of Ill. Rev. Stat., ch. 25, par. 27.1 provides that the fee for the Clerk of the Circuit Court shall be $40.00 as to each petition for writ of habeas corpus filed with such Clerk. There were thirty-four (34) of such writs filed on or subsequent to January 1, 1979. Section 8 of Ill. Rev. Stat., ch. 53, par. 8 provides that the fee of the State’s Attorney shall be $25.00 for each day actually employed in the hearing of a case of habeas corpus in which the People of the State of Illinois are interested. The total number of days was thirty-four (34). Section 1 of Ill. Rev. Stat., ch. 81, par. 81 provides that a fee of $2.00 shall be charged for each civil case when a pleading is filed to defray the cost of the law library. The total number of such filings was thirty-four (34).

Section 1 of Ill. Rev. Stat., ch. 65, par. 37 provides that the State of Illinois, through the Court of Claims, shall assume and pay to each county the necessary expenses incurred by it and its officers, either by means of service rendered or otherwise, by reason of court proceeding in such county involving petitions for writs of habeas corpus by such inmates as above alleged; that this claim is presented in accordance with said section of said statutes.

The claim of the County of Randolph against the State of Illinois for these necessary expenses as set forth above amounts to the sum of $2,385.40.

It is hereby ordered that the Claimant, County of Randolph, be awarded, in full accord and satisfaction of any and all claims presented to the State of Illinois under the above captioned cause, the sum of $2,385.40 (two thousand three hundred eighty-five and 40/100 dollars).


text:
    (No. 81-CC-1475
    Elaine Peltz et al., Claimants, v. The State of Illinois, Respondent.

      Opinion filed May 6, 1981.

    Thomas Johnson, Legal Assistance Foundation of Chicago, for Claimants.
    Tyrone C. Fahner, Attorney General (Sandra L. Andina, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This cause coming on to be heard on the Stipulation by Respondent and the Court being fully advised in the premises; that 3,811 Claimants seek individual judgments in specified amounts as listed in exhibit “A” to their complaint; that such judgments, in the aggregate amount of $522,863.83, consist of benefits for which they applied, but did not receive, under the Illinois Department of Public Aid’s Aid to the Aged, Blind, and Disabled (AABD) Program between July 1, 1968 and April 16, 1971; that this stipulation arises out of settlement of U.S. District Court litigation entitled Jordan v. Quern, 70 C 10 and that authorization for this expenditure can be found in Article III of the Public Aid Code (Ill. Rev. Stat. 1979, ch. 23, par. 3 — 1 et seq.).

An investigation of this claim by the Illinois Department of Public Aid, hereinafter referred to as the Department determined that United States Government funds were made available to the State of Illinois for this expenditure and deposited in the State Treasury in the Federal Public Aid Trust Fund.

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

The sole reason said claim was not previously paid is due to the fact that upon the lapse of the State Funds appropriated to the Department, for the period during which the debt was incurred, said Department refused to expend the Federal funds out of which this claim would normally have been paid, the same having been confirmed by the written report of the Department, a copy of said report being attached to the stipulation by Respondent.

It is therefore ordered that Claimants, Elaine Peltz, et al., be and are hereby awarded the sums specified in exhibit “A” of their complaint, in an aggregate amount of $522,863.83 (five hundred, twenty-two thousand, eight hundred sixty-three dollars and eight-three cents) to be appropriated out of and paid in accordance with the terms and conditions of the Federal Public Aid Trust Fund.


text:
    (No. 81-CC-1867
    Suburban Electric Co., Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 11, 1981.

    Kalinich, McCluskey & Mehling, for Claimant.
    Tyrone C. Fahner, Attorney General (John R. Fanone, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

The Claimant, Suburban Electric Co., seeks a recovery in the Court of Claims based upon a contract with the Capital Development Board.

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

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

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

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

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

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

6. That both parties agree that the delay caused Claimant to suffer damages in the amount of $78,910.00.

7. That both parties agree to the granting of an award in the amount of $78,910.00 to Claimant, and that said award will constitute full and final satisfaction of the claim herein.

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

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

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

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

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

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

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

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

The court also is of the opinion that an award of $78,910. (seventy eight thousand nine hundred ten dollars and no cents) is fair, and reasonable based upon the negotiations settlement, and compromise of the parties.

It is hereby ordered the Claimant be and the same is hereby awarded the sum of $78,910.00 (seventy eight thousand nine hundred ten dollars and no cents) in full and final satisfaction of the claim herein.


text:
    (No. 81-CC-2109
    Linda Robinson, Special Administrator of the Estate of Sammie Lee Robinson, deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 11, 1981.

    Karlin & Fleisher, for Claimant.
    Tyrone C. Fahner, Attorney General (Andrew R. Jarett, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

Linda Robinson, surviving spouse, brings this action as Special Administrator of the Estate of Sammie Lee Robinson, deceased pursuant to the provisions of the Illinois National Guardsman’s and Naval Militiaman’s Compensation Act (Ill. Rev. Stat. 1979, ch. 129, par. 401 et seq.) hereinafter ‘The Act’. Claimant seeks to recover under the Act for the death of her husband, Private Sammie Lee Robinson, who died as the result of injuries sustained in the performance of his duty as a military policeman for the Illinois Army National Guard.

On September 7, 1979, the decedent was on duty as a military policeman, assigned to convoy traffic control. The decedent was riding in a jeep as a passenger, traveling southbound on 1-55 to the Joliet Training Area. The convoy was traveling 45 m.p.h., per Army Convoy regulations, when about 10:30 p.m., a civilian vehicle, also traveling southbound, crashed into the jeep in which the decedent was riding as a passenger. The jeep went off the road, crossing the center median, and rolled over twice. The driver was thrown clear of the jeep; however, the decedent, and another passenger, were trapped inside.

On March 21,1980, the decedent died. The cause of death being a combination of (a) anoxic encephalopathy; (b) cardio pulmonary arrest, and (c) vomiting and aspiration, all of which resulted from injuries sustained in the crash.

It is clear that the decedent died within one year of injuries sustained from an accidental cause, while on duty as an Illinois Army National Guardsman. Further, that the death was not a result of the willful misconduct or intoxication of the guardsman.

The sole remaining issue before the court is whether Private Robinson was on active military duty pursuant to orders of the President of the United States. This point was addressed square by the Court in Gasper v. State of Illinois, 25 Ill. Ct. Cl. 186. In Gasper the Court held that a guardsman who suffers a fatal accident, while performing a duty assigned to him by a commissioned officer of the Illinois National Guard (whose authority was granted to him by the Commander-in-Chief (Governor)), while classified under “Inactive Duty Training” status (Section 502, Title 32, U.S.C.) was entitled to recovery.

In the instant case, Respondent has submitted under our Rule 14, a letter dated September 11, 1979, by Capt. Ray Norris, Commander of the Detachment 1, 33d Infantry Brigade, Illinois Army National Guard. In this letter, Capt. Norris states that he authorized the convoy in which Private Robinson suffered the injuries. Capt. Norris further notes that Private Robinson was entitled to pay under Section 502, Title 32, U.S.C.

Thus, under Gasper, op. cit., Private Robinson does fall within ambit of the Act.

The court, after reviewing decedent’s claim, and the Report of the Attorney General, finds sufficient evidence to determine that this claim is compensable under the Act. Accordingly,

It is hereby ordered that the sum of $20,000.00 (twenty thousand dollars) be, and hereby is awarded Linda Robinson, surviving spouse, and Special Administrator of the Estate of Sammie Lee Robinson, decedent.


text:
    (No. 81-CC-2584
    Arleania Allen, Claimant, v. The State of Illinois, Respondent.

      Order filed June 29, 1981.

    David S. Pochis, Ltd. (Alan D. Katz, of counsel), for Claimant.
   Poch, J.

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

The instant complaint alleges that Claimant was injured in an automobile accident on Highway U.S. Route 41, at 7050 South in the City of Chicago, on May 19, 1979. It is further alleged that the accident resulted from Claimant’s vehicle hitting a large hole in the highway and that the presence of said hole was due to the negligence of Respondent in its duty to maintain the highway.

Respondent asserts that at the time in question, the portion of the highway where the accident occurred was the maintenance responsibility of the City of Chicago. In support of its assertion, Respondent submitted an affidavit by the Safety and Claims Manager of the Illinois Department of Transportation to this effect, and a copy of the maintenance agreement between the State and the City of Chicago. Respondent argues in its motion that the City of Chicago acted as an independent contractor in operating and maintaining the highway, that any negligence in this regard is attributable solely to the City of Chicago, and that the State cannot be held liable under the theory of respondeat superior for the negligent acts of the City or its employees.

In claims against the State, the doctrine of respondeat superior places liability upon the State itself for the acts of its employees or agents which are controlled or supervised by the State. It is apparent from the maintenance agreement between the State and the City of Chicago that the operation and maintenance personnel were neither State employees nor agents which the State controlled or supervised. On the contrary, the agreement • supports Respondent’s contention that the City of Chicago was an independent contractor. Under these circumstances, there can be no liability on the part of the State. In this instance, the theory of respondeat superior would serve only to hold the City of Chicago liable for the negligence of its own employees rather than the State.

It is hereby ordered that summary judgment be granted in favor of Respondent and that this claim be, and the same is, hereby denied.

LAW ENFORCEMENT OFFICERS AND FIREMEN COMPENSATION ACT

Where a claim for compensation filed pursuant to the Law Enforcement Officers and Firemen Compensation Act (Ill. Rev. Stat., ch. 48, par. 281 et seq., within one year of the date of death of a person covered by said Act, is made and it is determined by investigation of the Attorney General of Illinois as affirmed by the Court of Claims, or by the Court of Claims following a hearing, that a person covered by the Act was killed in the line of duty, compensation in the amount of $20,000.00 shall be paid to the designated beneficiary of said person or, if none was designated or surviving, then to such relative(s) as set forth in the Act. The following reported opinions include all such claims resolved during fiscal year 1981.


text:
    (No. 00174

      In re Application of Mary Feehan.

      Opinion filed October 1, 1980.

    Richard Rochester, for Claimant.
    William J. Scott, Attorney General, for Respondent.
   Per Curiam.

The applicant, Mary Feehan, seeks compensation for benefits under the provisions of the Law Enforcement Officers and Firemen Compensation Act, Ill. Rev. Stat., ch. 48, par. 281 et seq. as a result of the death of her husband, Terry Wayne Feehan, on March 26, 1979.

There is no designation of beneficiary form on file with either the Court or the Attorney General regarding this matter. In this situation Section 3(a) of the Act provides that the surviving spouse of the deceased is entitled to the entire award if the Court finds that an award should be made. Mrs. Feehan therefore properly appears in the Court of Claims seeking said award.

Decedent was employed as an investigator by the Mercer County Sheriff’s Police in Aledo, Illinois. On March 26, 1979, he was discovered unconscious in a restroom on the third floor of the Mercer County Courthouse. He was pronounced dead by the county coroner at 12:30 p.m. The cause of death was determined to be a cardiac arrest due to a left coronary occlusion and premature atherosclerosis.

Section 3 of the Act states in pertinent part that if a claim therefor is made within one year of the date of death of the law enforcement officer killed in the line of duty, compensation in the amount of $20,000 shall be paid to the proper claimant. There is no question that Mrs. Feehan complied with all the procedural requirements of the Act. A hearing was held to determine if this claim met the other requirements for compensation.

At the hearing the parties made arguments citing Georgean v. State (1973), 28 Ill. Ct. Cl. 408. We recently had occasion to comment on that case. See In Re Parchert, Case No. 00151, filed August 18, 1980. In that case the claim was denied because the decedent did not fall within the statutory definition of a law enforcement officer due to the purely clerical duties his job entailed. He did not have a position involving the enforcement of the law and the protection of the public interest at the risk of his life. In the case at bar Mr. Feehan did hold such a position. The records of the sheriff of Mercer County, which were admitted into evidence, clearly indicate Mr. Feehan routinely performed functions which would bring his position within section 2(a) of the Act, the definition of a law enforcement officer.

Having found Mr. Feehan to have been a law enforcement officer, we turn to the second issue raised in this case: whether or not Mr. Feehan was killed in the line of duty as required by section 3 of the Act. Section 2(a) defines “killed in the line of duty” as losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer if death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental cause. The fact that the cause of death is a heart attack is not a bar to compensation as this Court has many times granted an award in such situations in the past.

Cases involving heart attacks do comprise the most difficult of the claims made, however, a heart attack can be the result of a myriad of causes or a single event. A bad heart condition may exist for a long period of time before an event triggers a heart attack or it may occur very suddenly. It is rare, if ever, one can say for a legal certainty that one certain event caused a certain heart attack. The Court recognizes this, and it recognizes that police work involves stress and strain which can lead to heart attacks. In the past the Court has taken this into account while still adhering to a literal administration of the Act. Parchert, supra.

In cases involving heart attack victims we therefore look to the circumstances and events of the decedent’s life leading up to the death. In so doing we need not limit our examination to a single stressful or strenuous event such as in Burgholzer (1973), 28 Ill. Ct. Cl. 406, McBurney (1972), 28 Ill. Ct. Cl. 404, or O’Neill (1973), 29 Ill. Ct. Cl. 529. While the heart attack must have been a result of the active performance of duty, in certain cases it becomes relevant to look at circumstances and events further preceding the death than those occurring solely on the day of the heart attack as far as is practical and not overly remote. A pattern of exigent circumstances may in some cases have a cumulative effect of leading up to and resulting in a heart attack. This is a difficult determination to make but one which nevertheless must be made in administering the Act without the benefit of clear and concise standards and in taking into account the physiological realities of heart attack causation. Such is the situation presented in the case at bar.

The sequence of events leading up to Mr. Feehan’s death is not precisely clear from the evidence and testimony. The following is what we find to have transpired. Looking at Mr. Feehan’s recent work history we find that he put in an extraordinary amount of overtime in the active performance of stressful police-duties way beyond a normal forty hour work week. For the month of January, 1979 he worked a total of 243 hours. In February, 1979 he worked 211 hours. At the time of his death in March of 1979 he had already put in 186 hours for that month. Although the records tend to indicate that he was supposed to be off during the weekends, it is also apparent from the records, that he was on call should anything arise and did get called out from time to time. During one 72 hour period shortly before his death he worked 47 hours. At one point in that stretch of time he worked over 19 consecutive hours out of necessity due to exigent circumstances. That work consisted of investigating crimes committed and about to be committed, making arrests, performing searches, and conducting surveillance and stakeouts in connection with a burglary and drug dealing.

On the day of his death Mr. Feehan began duty at 7:45 a.m. That morning he traveled outside the county to deliver evidence seized to a crime lab for analysis. Upon returning to the county he was called in to testify at a hearing in a burglary case that he had handled. He was previously unaware that he would have to testify that day. He completed his testimony at approximately 11:35, having been on the stand for approximately 30 minutes, and apparently left the courtroom for the restroom where he died shortly thereafter.

We find that the specific facts in this case as set forth above constitute a compensable claim under the Act in that recent exigent circumstances involving extraordinarily long hours spent in the active performance of stressful duties had the cumulative effect of resulting in death of Mr. Feehan while he was in the active performance of duty. In conjunction with said find we further find that such facts constitute injury arising from violence and other accidental cause.

Having found that the proof submitted in support of this claim satisfies all requirements of the Act, we hereby order the sum of $20,000.00 be awarded to Mary Feehan, wife of the deceased law enforcement officer, Terry Wayne Feehan.


text:
    (No. 00179

      In re Application of Margaret Woodworth.

      Opinion filed February 13, 1981.

    Hendrix & Lierman (Charles W. Hendrix, of counsel), for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This claim arises out of the death of Charles Eugene Woodworth, a member of the Civil Defense Corps of Tolona, Illinois. The decedent’s widow seeks compensation pursuant to the provisions of the “Law Enforcement Officers, Civil Defense Workers, Civil Air Patrol Members, Paramedics and Firemen Compensation Act” (the Act). (Ill. Rev. Stat., ch. 48, par. 281 et seq.). The Claimant is the widow of the decedent as indicated by the verified application for benefits and a copy of the marriage certificate attached to the report of the Attorney General.

On January 24, 1979, the decedent was called up to participate in a training exercise conducted by the Tolona Civil Defense Corps during a heavy snowstorm. While responding to a call from the supervisor of the exercise to aid a motorist who was stuck in a snowbank, the emergency vehicle driven by the decedent became stuck in a ditch. While his co-worker attempted to extricate his vehicle with a tow truck, the decedent suffered a heart attack and died. The cause of death was coronary thrombosis.

This court has on previous occasions considered other cases involving heart attacks and whether such deaths are compensable under the Act. The test has been whether the decedent lost his life as a result of injury arising from an accidental cause received in the active performance of his duties. In re Application of Parchert, No. 00151, decided June 4, 1980.

Applying that standard in the instant claim, this court finds that the heart attack causing death arose while Woodworth was actively performing his assigned duties as a civil defense worker. As set forth in Parchert, coverage under the Act is not limited to healthy policemen, firemen, or other covered persons.

The Act is concerned with providing additional compensation to those certain members of the public who perform services on behalf of governmental agencies which benefit the public as a whole. Here Mr. Wood-worth responded to a request by the local Civil Defense Director to participate in an exercise of the Emergency Services & Disaster Agency to aid the motoring public in an emergency blizzard situation. Having voluntarily given of his time, Woodworth was stricken with a fatal heart attack while responding to a call to aid a trapped motorist. Under these circumstances, we find this claim is compensable under the Act.

It is hereby ordered that the sum of $20,000.00 (twenty thousand dollars) be, and hereby is awarded to Margaret Woodworth, widow of Charles Eugene Wood-worth, decedent.


text:
    (No. 00187
    Mary McInerney, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 15, 1980.

    Mary McInerney, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Henry H. Caldwell, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arose from the death of a police officer employed by the Chicago Police Department, Chicago, Illinois. The Claimant seeks payment of compensation as the decedent’s beneficiary pursuant to the provisions of the “Law Enforcement and Firemen Compensation Act”, (hereafter, the Act). Ill. Rev. Stat. 1977, ch. 48, par. 281 et seq.

The court has carefully considered the application for benefits submitted on the form prescribed and furnished by the Attorney General, a written statement of the decedent’s supervising officer, and a report by the Illinois Attorney General’s office. Based on these documents, the court finds as follows:

1. That the Claimant, Mary McInerney, is the wife and designated beneficiary of the decedent.

2. That the decedent George W. McInerney, was a Chicago police officer assigned to major accident investigation section and was also on active reserve during the fire department strike at this time, and was so employed on February 26,1980.

3. That on said date, decedent had commenced work at 6:30 a.m. The statement of the supervising officer of the decedent indicates that Mr. McInerney became ill at his desk and was excused from duty at 11:30 a.m. No injury, however, was suffered by deceased while on duty on this date. He apparently became violently ill upon getting into his personal vehicle, vomit-ted and temporarily lost consciousness. This occurred at least one more time before his arrival at his home. Shortly after his arrival home, an ambulance was summoned and Officer Mclnerney was taken to the hospital. His death followed on February 27, 1980. The medical certificate of death shows that the immediate cause of death to be a massive cerebral vascular hemorrhage due to, or as a consequence of, hypertension the deceased had suffered for six years.

4. That the death of George W. McInerney did not stem from circumstances which involved loss of life as a result of injury received in the active performance of duties as a law enforcement officer. Furthermore, the injury which led to the death of the deceased did not arise from violence or accidental causes. Therefore Officer Mclnerney was not “killed in the line of duty” as defined in Section 2(e) of the Act.

We find therefore:

a) that Officer McInerney was not killed in the line of duty as defined in 2(e) of the Act, and

b) that the proof submitted in support of this claim does not satisfy the requirements of the Act, and the claim is therefore not compensable thereunder.

It is hereby ordered that the claim of Mary McInerney as wife of the deceased police officer, George W. Mclnerney, be denied.


text:
    (No. 00192
    Norma J. Wierciak, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 23, 1981.

    Lechien and Associates, Ltd., for Claimant.
    Tyrone C. Fahner, Attorney General (Henry H. Caldwell, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim is before this Court by reason of the death of Edward Wierciak, formerly a Detective Sergeant employed by the City of East St. Louis, and who died while on duty on January 4, 1980. The Claimant seeks payment by way of an application for benefits under Ill. Rev. Stat. 1979, ch. 48, par. 281, et seq.

The application for benefits shows that decedent was found at his desk about 8:32 a.m. on January 4,1980, seated at his desk lying face down on top of the desk. He was removed to St. Mary’s Hospital, was given emergency treatment there to no avail. The officer was pronounced dead of a heart attack.

The court has given careful consideration to the report of the Attorney General of Illinois and to the application for benefits. The Attorney General of Illinois has recommended that we deny the application.

Colonel Morrison, supervising officer, prepared a statement to the effect that decedent, Detective Stewart, and Detective Brinkley were in the investigation section of the police department. They heard loud grunts coming from Detective Wierciak’s office, and observed him seated at his desk but lying face down on the desk. Attempts to revive decedent failed, and he was removed to St. Mary’s Hospital as we have noted.

The application for benefits shows death to have been caused by a heart attack. The application reads, in part, at page 2:

° ° This injury was.a result of prolonged stress and anxiety of being a police officer.”

It should be noted that there is nothing in the application to show any injury, or other unusual force which might cause a heart attack. The decedent was seated at his desk when the attack was observed by his fellow officers.

The Act (Ill. Rev. Stat. 1979, ch. 48, par. 281 et seq.) controls. Section 2(e) of the Act reads:

“(e) killed in line of duty means losing one’s life as a result of injury received in the active performance of duties as a law enforcement officer or fireman if the death occurs within one year from the date the injury was received and if that injury arose from violence or other accidental causes ° 0

Claimant’s application for benefits makes no reference to an act of violence as a cause of death, nor does it make any reference to an injury arising from an accident incurred in line of duty.

Recently, this court filed its opinion in McInerney v. State of Illinois, No. 00187, on August 15, 1980, denying an application for benefits. In that claim, it appeared that death of the officer, who became ill at his desk, was the result of a cerebral hemorrhage arising from hypertension covering a period of six years. In the application now under judgment, it must be observed that Detective Wierciak’s death was markedly similar to the death of Officer Mclnerney, especially to the cause of death, and, by reason of the lack of any violence or injury which could be considered to be an effective cause of death.

Accordingly, we find:

1. That Norma J. Wierciak is the widow of Detective Edward Wierciak of the East St. Louis Police Department.

2. That decedent was on duty on January 4, 1980.

3. That on that date, decedent had commenced work at 8:00 a.m. and died about 8:32 a.m. in St. Mary’s Hospital from a heart attack described as an acute myocardial infarction and as a coronary arteriosclerotic heart disease, caused by prolonged stress and anxiety.

4. That Detective Wierciak’s death was not the result of loss of life from an injury received in the performance of duties as a law enforcement officer and, that the injury causing death did not arise from violence or an accidental incident.

We find therefore:

a) that Det. Wierciak was not killed in the line of duty as defined in section 2(e) of the Act;

b) that the proof submitted in support of this claim does not satisfy the requirements of the Act, and the claim herein is not compensable thereunder.

It is hereby ordered that the claim of Norma J. Wierciak be denied.


text:
    (No. 81-CC-1616
    Bernice Koltz, mother of Randall Alan Blank, deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed April 17, 1981.

    Bernice Koltz, pro se, for Claimant.
    . Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an application for benefits filed by Bernice Koltz, mother of Randall Alan Blank, deceased, under the Law Enforcement Officers, Civil Defense Workers, Civil Air Patrol Members, Paramedics and.Firemen Compensation Act (the Act, Ill. Rev. Stat. 1979, ch. 48, par. 281, et seq.)

On December 31, 1980, at 12:33 a.m., the decedent was shot during a struggle with a suspect. At said time, the decedent was on duty as a patrolman with the City of Rockford Police Department.

The Attorney General states that the death of Officer Blank is compensable under the Act and recommends the disbursement of the benefits according to the wishes of the officer pursuant to his designation of beneficiary form. We concur.

The officer’s form lists three beneficiaries Bernice Koltz, David Blank and Diane Blank all of whom reside at 2213 Holmes in Rockford, Illinois. Their respective shares were designated as 70%, 15%, and 15%.

It is hereby ordered that the $20,000.00 (twenty thousand and 00/100 dollars) in benefits under the Act be awarded on account of the death of Officer Randall Blank who was shot and killed in the line of duty and be disbursed as follows:

Bernice Koltz $14,000

David Blank $ 3,000.00

Diane Blank $3,000.00

TOTAL AWARD $20,000.00


text:
    (No. 81-CC-1752
    Irene E. Gipson, widow of Richard F. Gipson, deceased, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 17, 1981.

    Irene E. Gipson, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Francis M. Donovan, Assistant Attorney General, of counsel), for Respondent.
   Roe, C. J.

This claim arises out of the death of Richard F. Gipson, an officer with the City of Chicago Police Department. The decedent’s widow seeks compensation pursuant to the provisions of the “Law Enforcement Officers, Civil Defense Workers, Civil Air Patrol Members, Paramedics & Firemen Compensation Act” (the “Act”), Ill. Rev. Stat., ch. 48, par. 281, et seq. The verified application for benefits shows that Irene Gipson was married to the decedent at the time of his death.

On February 4, 1981, Officer Gipson reported for duty at 7:00 a.m. at O’Hare Field. At approximately 11:30 a.m. that morning, he was requested to aid in the investigation of a possible theft by fraud in the purchase of two airline tickets. After sufficient facts had been elicited to show the existence of a fraud, one of the alleged offenders attempted to destroy evidence and Officer Gipson intervened. In the ensuing struggle, the officer was knocked to the ground where he remained during the apprehension of the alleged offenders. Efforts to revive Gipson by emergency medical personnel failed. He was pronounced dead by Dr. Ney at Resurrection Hospital in Chicago.

The certificate of death by the Cook County Medical Examiner listed the cause of death as:

“Occlusive coronary atherosclerotic heart disease in association with stress.” (Emphasis added)

This court has on many prior occasions reviewed applications for benefits where the decedent died from heart related maladies while on duty. Each case has been decided on its own merits with the significant factor being the nexus between the duties being performed at the time and the ensuing heart condition. There is no hard and fast rule that can be laid down for these types of cases.

In the instant case, however, the facts are clear that the stress mentioned in the certificate of death are those peculiar to a law enforcement officer’s performance of his duties. The decedent, unlike the average person, had a duty inherent in his job to prevent the destruction of evidence. In the active performance of that duty, Officer Gipson died.

Therefore, we hold that this application falls within the parameters of the Act and an award should be entered.

The remaining consideration involves who should receive the benefits. In her application, the widow indicates that she was the designated beneficiary of her husband. However, no copy of the designation of beneficiary form was attached to the application. In his report, the Attorney General has indicated that Officer Gipson had designated his wife and daughter as co-beneficiaries to share equally under the Act. The designation form attached to the report is dated January 8, 1970 and appears to have been signed by Officer Gipson. Based on the aforesaid facts, this court will award the benefits as desired by the decedent.

It is therefore ordered that $20,000.00 be, and the same hereby is, awarded to the following persons in the amounts indicated pursuant to the Act and the expressed wishes of the decedent:

Irene E. Gipson $10,000.00

6539 North Sayre Avenue

Chicago, Illinois 60631

Gail Facchini 10,000.00

5301 North Melvina

Chicago, Illinois 60630

TOTAL AWARD $20,000.00


text:
    (No. 81-CC-2079

      In re Application of Bonnie Marousek.

      Opinion filed June 11, 1981.

    Bonnie Marousek, pro se, for Claimant.
    Tyrone C. Earner, Attorney General (Andrew R. Jarett, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of the death of Robert E. Marousek, Sr., a police officer for the City of Chicago. The decedent’s widow seeks compensation pursuant to the provisions of the “Law Enforcement Officers and Firemen Compensation Act” (the Act) (Ill. Rev. Stat., 1979, ch. 48, par. 281 et seq.). The Claimant is the widow of the decedent as indicated by the verified application for benefits and as noted on the death certificate attached to the report of the Attorney General.

On February 28, 1981, the decedent was on duty, responding to a man down call at 15 South Aberdeen, Chicago, Ill. Upon arriving at the scene, Officer Marousek and his partner, Officer Kent, found the man down to be D.O.A. Whereupon Officers Marousek and Kent loaded the victim onto a stretcher and placed it into the police vehicle to be taken to the nearest hospital.

After placing the victim into the vehicle, Officer Kent turned around and saw the decedent collapsed on the ground. Officer Marousek was pronounced D.O.A. at the University of Illinois Hospital of arteriosclerotic heart disease. Investigation by the Attorney General indicates that the decedent had a ‘flawless’ medical history and no prior history of heart disease.

This court has on previous occasions considered other cases involving heart attacks and whether such deaths are compensable under the Act. The test has been whether the decedent lost his life as a result of injury arising from an accidental cause received in the active performance of his duties. In re Application of Par chert, No. 00151, decided June 4, 1980.

Applying that standard in the instant claim, this court finds that the heart attack arose while Marousek was actively performing his assigned duties as a police officer.

The Act is concerned with providing additional compensation to those certain members of the public who perform services on behalf of governmental agencies which benefit the public as a whole. Here, Mr. Marousek had responded to a call to assist a man down. His heart attack apparently resulted from the exertion of lifting the victim into the police vehicle. On the facts, this is a close case, the determining factor being that the decedent had engaged in physical activity which brought on the fatal result. Had the decedent been engaged in a passive activity, such as sitting at a desk, or standing, this court may well have reached a different conclusion. Under these circumstances, we find this claim is compensable under the Act.

It is hereby ordered that the sum of $20,000.00 (twenty thousand dollars) be, and hereby is awarded to Bonnie Marousek, widow of Robert E. Marousek, Sr., decedent.


text:
    (No. 75-CV-0185

      In re Application of Maggie Williams.

      Opinion filed December 30, 1980.

    Alan J. Scheffres, for Claimant.

      Tyrone C. Fahner, Attorney General (Alan R. Boudreau, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident which occurred on February 24, 1974, when the Claimant’s daughter, Annie Mae Jennings, was shot and killed by her husband, Wyatt Jennings. The assailant and the victim were husband and wife but were living separate and apart at the time of the crime.

The Claimant is Maggie Williams, the mother of the victim, Annie Jennings, who brings this claim as guardian for the four minor children of Annie Mae Jennings and Wyatt Jennings.

Claimant seeks compensation for lost support under the provisions of the Crime Victims Compensation Act. Ill. Rev. Stat. 1979, ch. 70, par. 70 et seq.

An Order was entered by this Court on July 1,1976, denying the claim on the ground that the assailant was the husband of the victim. Section 3(e) of the Act precludes eligibility for benéfits where the victim and the assailant' are related. The Claimant moved for a hearing under section 9 of the Act, and the hearing was granted.

No evidentiary hearing was held, as the facts are essentially undisputed.

The issue presented to this Court is whether a person is entitled to compensation under the Act if that person is related to the assailant but not sharing the same household.

. This Court has held in In re Application of Lena Gordon, 75-CV-219, as follows:

“Section 3(e) of the Act states that:
A person is entitled to compensation under the Act if: (e) the victim and his assailant were not related, and sharing the same household.”

It is our opinion from the words of section 3(e) of the Act, that it was the intent of the legislature to deny compensation for injuries arising out of domestic quarrels! It did not intend that this Court enter into a morass of trying to determine provocation or causes of quarrels between relatives or persons who reside together.

From a grammatical standpoint, the comma after the word related in section 3(e) indicates that either a condition of being related to the assailant or a condition of sharing the household of the assailant disqualifies a person from compensation. If the legislature intended that both the condition of being related to the assailant and sharing the same household must be present in order to disqualify a person, then the comma would not have been required. To hold otherwise is also to hold that the legislature intended to pay a victim who shared the household of his assailant although not related to him. This Court cannot agree that such was the intent of the Act.

This same issue was presented to the New York Executive Department Crime Victims Board. In the case of Gilbert R. Weisinger v. Stanley L. Van Rensselear, 362 N.Y.S. (2d) 126, the Court said, “Under Statute rendering a member of a family of perpetrator ineligible to receive financial assistance for criminal injury, husband could not receive an award for injury sustained when shot by his wife, who had been living separate and apart.”

Therefore, the Court reaffirms In re Application of Lena Gordon, and finds that no compensation in this claim is authorized under the aforesaid Act and the claim is dismissed.


text:
    (No. 76-CV-0006

      In re Application of Jean Desir.

      Opinion filed July 12, 1980.

    Arthur E. German, for Claimant.
    William J. Scott, Attorney General (Orisha Kulick, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of an incident which occurred on or about the 28th day of October 1974. Claimant seeks compensation pursuant to the applicable provisions of the Crime Victims Compensation Act, hereinafter referred to as the Act. Ill. Rev. Stat., ch. 70, par. 71 et seq.

The claim was filed on or about the 1st day of July 1975. Thereafter, based upon the Investigatory Report submitted by the Attorney General of the State of Illinois and the other documentary evidence, the Court rendered its opinion on or about the 17th day of November 1976. Claimant filed his objection to said opinion and requested a full hearing on the merits.

This matter was heard in the Court of Claims, Chicago, Illinois, on July 8, 1977, at which time the transcript was waived by the parties. Claimant, Jean Desir, brings this action on behalf of Justin Patrick Desir, his minor son, who was struck by a vehicle allegedly being operated by one Stephen Smeja on or about October 28, 1974, and, as a result of said striking, the victim sustained injuries to his body. The accident was routinely treated by the police and State’s Attorney’s Office of Cook County as a traffic accident.

At the time of the incident, Justin Patrick Desir was approximately 6 years of age. The only testimony given at the time of the hearing was that of Justin Patrick Desir and testimony of Jean Desir, his father. The young boy testified that he was injured when struck by the vehicle driven by Stephen Smeja. The father could not testify to the facts of the incident since he was not present and did not observe same.

The issue is whether or not a crime occurred when Justin Patrick Desir was hit by the vehicle driven by Stephen Smeja. Respondent takes the position that at best the action of the driver of the vehicle amounted to negligence which would be otherwise compensable under the law.

Although there was testimony indicating that there had been some incidents of ill will between the Smeja family and Jean Desir’s family, there is no evidence or testimony to support Claimant’s contention that the behavior of Stephen Smeja at the time of the incident constituted a crime within the meaning of the Crime Victims Compensation Act. The uniform position of this Court has been that the Act has no application to unintentional motor vehicle occurrences. See In Re Shirley, 77-CV-289, In Re Claro, 77-CV-68, In Re Gary, 76-CV-1345, In Re Matthews, 76-CV-310.

Accordingly, it is the opinion of this Court that the prior order of this Court remain in full force and effect.


text:
    (No. 76-CV-0128

      In re Application of Leon Scott.

      Opinion filed July 12, 1980.

    Leon Scott, pro se, for Claimant.
    William J. Scott, Attorney General (Wendy Weidberg, Assistant Attorney General, of counsel), for Respondent.
   Poch, J.

This claim arises out of a criminal offense which occurred on or about the 2nd day of April 1975. Claimant seeks compensation pursuant to the applicable provisions of the Crime Victims Compensation Act, hereinafter referred to as the Act. Ill. Rev. Stat., ch. 70, par. 71 et seq.

The claim was filed on or about the 8th day of August 1975. Thereafter, based upon the Investigatory Report submitted by the Attorney General of the State of Illinois and the other documentary evidence, the Court rendered its opinion on or about the 28th day of September 1976. Claimant filed his objection to said opinion and requested a full hearing on the merits.

The hearing was conducted by Commissioners Martin Ashman and Leo J. Spivak on the 11th day of August 1977, the 27th day of September 1978, and the 4th day of April 1979, at Chicago, Illinois. As a result of said hearing the following facts were established by a preponderance of the evidence:

(1) Claimant did, on the night in question, invite one Onnie Mae Coffie to his house. During the evening, Claimant and Onnie Mae Coffie had an argument. In order to restrain her from leaving, Claimant produced a revolver — a struggle ensued and plaintiff was shot. The police were immediately called by said Onnie Mae Coffie. A full investigation was conducted by the police and State’s Attorney — the shooting was characterized as accidental and no charges of any kind were brought.

(2) Under the foregoing circumstances, the preponderance of the evidence supports the findings of the Court heretofore entered on September 28,1976; namely, that no crime within the purview of the statute had occurred.

Accordingly, it is hereby ordered that the prior order of this Court remain in full force and effect and the matter not be reopened.


text:
    (No. 76-CV-1327

      In re Application of Marta Garcia de Adame and Juan Romero.

      Order filed May 21, 1981.

    Honoratos Lopez, for Claimants.
    Tyrone C. Fahner, Attorney General (Maureen Cain, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occurred on November 23, 1975. Marta Garcia de Adame and Juan Romero, wife and brother-in-law, respectively, of the deceased victim, Gabriel Adame, seek compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

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

1. That Gabriel Adame, age 32, was a victim of a violent crime as defined in section 72(c) of the Act, to wit: Murder. Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1.

2. That on November 22, 1975, the victim was beaten, for no apparent reason, by an unknown offender. The incident occurred on the street at 3201 S. Lawndale, Chicago, Illinois. The victim was taken to St. Anthony Hospital where he died shortly thereafter.

3. Documents submitted by the Claimants to substantiate their claim indicated that the victim was a foreign national.

4. That the Claimant, Juan Romero, seeks compensation for funeral expenses only. He was not dependent upon the victim for support.

5. That the Claimant, Juan Romero, incurred funeral and burial expenses as a result of the victim’s death in the amount of $700.00.

6. That the Claimant, Marta Garcia de Adame, seeks compensation for loss of support for herself and her four minor children.

7. That the Claimant and her four minor children were totally dependent upon the victim for support.

8. That prior to his death, the victim was employed by International Multifoods Corporation and his average monthly earnings were $381.26.

9. That section 4 of the Act states # loss of support shall be determined on the basis of the victim’s average monthly earnings for the six months immediately preceding the date of the injury or on $500.00 per month, whichever is less.”

10. That the victim was 32 years of age at the time of the crime. According to the U.S. Department of Health, Education and Welfare, Vital Statistics of the United States, 1976, Life Tables, Volume II, his life expectancy would have been 68.6 years. The projected loss of support for 36.6 years is in excess of $10,000.00 which is the maximum amount compensable under section 7(e) of the Act.

11. That pursuant to section 7(d) of the Act, this Court must deduct $200.00 from all claims plus the amount of benefits, payments or awards payable under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.), from local governmental, State or Federal funds or from any other source, except annuities, pension plans, Federal social security benefits and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance paid or payable to the Claimant.

12. That the Claimants have received no reimbursements as a result of the victim’s death that can be counted as applicable deductions.

13. That the Claimants, Marta Garcia de Adame and Juan Romero have complied with all pertinent provisions of the Act regarding funeral and burial expenses and loss of support.

14. That counsel for the Claimants has been unable to furnish documentation regarding the legal alien status of the victim. It is the opinion of this Court that the definition of a person eligible for compensation under the Act relates specifically to citizens of the United States and aliens admitted to the United States under color of law. Thus, the Claimants are precluded from recovery under the Act.

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


text:
    (No. 76-CV-1556

      In re Application of Lizzie Thomas.

      Opinion filed December 22, 1980.

    Marc J. Ansel, for Claimant.
    Tyrone C. Fahner, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occurred on September 5,1976, in Champaign, Illinois. Lizzie Thomas, wife of the deceased victim, Lyance Thomas, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

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

1. The Claimant’s deceased husband, Lyance Thomas, age 21, was a victim of a violent crime as defined in section 7(c) of the Act, to wit: Murder. Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1.

2. That on September 5, 1976, Claimant’s husband was found dead on a country road near Champaign, Illinois. There were no witnesses to the incident. It was determined that the victim died of acute asphyxia. The body was taken to Burnham City Hospital Morgue. The Claimant and Respondent have jointly stipulated to the facts surrounding the death of Lyance Thomas as contained in the investigative report of the Sheriff of Champaign County, a copy of which is attached hereto and made a part hereof, and that both parties jointly stipulated that this Court may rule on the facts included in that report.

3. The Claimant seeks compensation for funeral expenses and loss of support for herself and her minor child.

4. Funeral and burial expenses were paid by the Claimant in the amount of $1,918.50.

5. The Claimant and her minor daughter were totally dependent upon the victim for support.

6. That section 4 of the Act states # * loss of support shall be determined on the basis of . the victim’s average monthly earnings for the six months immediately preceding the date of the injury or on $500 per month, whichever is less.”

7. That prior to his death, the victim was employed by Kraft Foods, In.c., and his average monthly earnings were $881.

8. That the victim was 21 years of age at the time of the crime. According to the U.S. Department of Health, Education and Welfare, Vital Statistics of the United States, 1973, Life Tables, Volume II, his life expectancy would have been 52 years. The projected loss of earnings for 52 years is in excess of $10,000 which is the maximum amount compensable under section 7(e) of the Act.

9. That section 7(d) of the Act provides for a deduction of $200 plus the amount of benefits, payments or awards payable under the Workmen’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.), from local governmental, State or Federal funds or from any other source except annuities, pension plans, Federal social security benefits and the net proceeds of the first $25,000.00 (twenty-five thousand dollars) of life insurance paid or payable to the Claimant.

10. After making all applicable deductions under the Act, the Claimant’s loss is in excess of the $10;000 maximum award allowed in section 7(e) of the Act.

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

It is, therefore, ordered that the sum of $10,000 (ten thousand dollars) be and is hereby awarded to Lizzie Thomas, wife of Lyance Thomas, an innocent victim of a violent crime. It is further ordered that the award be paid to her within thirty days of the date of this opinion.


text:
    (Nos. 76-CV-1564, 76-CV-1565 cons.

      In re Application of Nancy M. Hansen.

      Order filed November 5, 1980.

    Stephen Yost, for Claimant.
    Tyrone C. Fahner, Attorney General (Wendy Weidberg, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occurred on December 13, 1974. Nancy M. Hansen, wife of the deceased victim, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

On January 2, 1979, this Court entered an Order denying said claim, because the above incident is not one of the violent crimes specifically set forth under section 2(c) of the Act.

Claimant filed a motion for reconsideration with the Court, and said motion was assigned to Commissioner Leo J. Spivak for a hearing.

The hearing was commenced on June 27, 1979. The essential facts outlined hereafter were stipulated and a briefing schedule established. Subsequently, Claimant filed his brief, the Attorney General filed his Response and Claimant filed his reply.

The basic facts are uncontroverted:

1. Claimant and her husband were driving in their automobile when struck head-on by an individual who was completely intoxicated at the time. After the collision the other party attempted to flee and was apprehended by police.

2. Claimant’s husband was killed in the collision. He left as total dependents Claimant and their two minor children now aged 9 and 15.

3. Claimant had filed several civil actions — (i) under the “Dramshop Act”, (ii) against the police officer and (iii) against the other driver. Actions described under (i) and (ii) were settled for a gross sum of $60,000 pursuant to a covenant not to sue.

This Court has uniformly taken the position that the Illinois Crime Victims Compensation Act is not applicable to unintentional motor vehicle offenses, as not being a “crime of violence” within section 2(c) thereof. A case previously decided which appears to be on all fours with the case at bar is In re Stevens, 75-CV-276. Similar conclusions were drawn in In re Smith, 76-CV-978; In re Heckey, 76-CV-940; In re Sirley, 77-CV-289; In re Claro, 77-CV-68; In re Gary, 76-CV-1345; In re Mathais, 76-CV-310; and In re Colemen, 75-CV-54.

Furthermore, Claimant’s cause must be defeated under the provision of section 10 dealing with the State’s right of subrogation (a) and claims against the proceeds of suit, settlement, etc. against the “assailant”.

For the foregoing reasons it is ordered that the Claimant’s petition be and the same is hereby denied and the cause dismissed with prejudice.


text:
    (No. 78-CV-0401

      In re Application of Alfonso Viscarrondo.

      Order filed September 10, 1980.

    Alfonso Viscarrondo, pro se, for Claimant.
    Tyrone C. Fahner, Attorney General (Alan R. Boudreau, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of an incident that occurred on April 26, 1978. Alfonso Viscarrondo, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1977, ch. 70, par. 71 et seq.

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

1. That on April 26,1978, the Claimant was struck by an automobile as he was riding his bicycle. The incident occurred at the intersection of Addision and Racine, Chicago, Illinois. The driver of the automobile did not stop after striking the Claimant. The Claimant was taken to Illinois Masonic Hospital for treatment of his injuries.

2. The issue presented to the Court is whether an injury incurred as a result of the reckless operation of a motor vehicle, including leaving the scene of the accident, may be the basis for an award under the Act.

3. In In re Roberta L. Stevens (1976), 75-CV-276 the Court held: “It is the opinion of this Court that the Illinois General Assembly did not intend to include compensation for nonintentional motor vehicle offenses.”

While a hit and run case is a crime, it is not one of the crimes specifically enumerated in the Act as being the basis of a claim under the Act.

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


text:
    (No. 78-CV-0616

      In re Application of Bertha Branyon.

      Order filed June 19, 1981.

    Richardson & Jianakoplos (Scott Richardson, of counsel), for Claimant.
    William J. Scott, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Per Curiam.

This claim arises out of a criminal offense that occurred on September 27,1975. Claimant, Bertha Bran-yon, seeks compensation under the provisions of the Crime Victims Compensation Act. Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.

The Court entered an Order on February 21, 1980, dismissing the claim in that the victim and assailant were related and sharing the same household. Pursuant to section 9 of the Act, the Claimant moved for a hearing and the request was granted.

The hearing was conducted by Commissioner Robert H. Rath on July 25, 1980, at Belleville, Illinois.

Based upon the testimony and documents received in evidence, the Court finds:

1. The woman who killed the victim, Elwestley Branyon, was known as Ethel Branyon at the time of the victim’s death.

2. A purported marriage ceremony had taken place on April 11,1975, between Elwestley Branyon and Ethel C. Ware in Cook County, Illinois, which marriage was void due to the previous marriage of Elwestley Branyon and Bertha Lee McGee, which was solemnized on the 23rd day of October, 1970.

3. That Bertha Branyon was not aware of the fact that the victim Elwestley Branyon was living with his “new wife” and believed that he was living with his sister in Chicago.

4. That the minor children of Ethel Branyon believed that Elwestley Branyon was their stepfather.

5. That the deceased victim, Elwestley Branyon, and his assailant, Ethel C. Ware, were residing together at the time of the victim’s death.

The Crime Victims Compensation Act provides in pertinent part as follows:

“If the victim is deceased and the victim and assailant were sharing the same household at the time the crime occurred, no award shall be made.”

Bertha Branyon, Claimant in this case, is entirely innocent of wrongdoing and innocent of the “family squabble” which resulted in the victim’s death, yet it is clear that the victim and his assailant were sharing the same household at the time the crime occurred. We do not believe that the legislature envisioned the present situation as being one in which benefits should be denied to the innocent Claimant; however, we cannot ignore the language of the statute which prohibits an award in this case.

The Court, therefore, finds no grounds for reconsidering its Order of February 21, 1980, denying the claim for compensation herein.