text:
    (No. 91-CC-1747
    Kemp Drainage District by User No. 1 in Bowdre Township, in Douglas County, Illinois, Claimant, v. The State of Illinois, Respondent.

      Opinion filed February 6, 1992.

    Craig & Craig (Robert G. Grierson, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Thomas Gray, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

This cause came to be heard on a motion to dismiss filed by the Respondent. Oral argument was held before the Court on November 12,1991.

In 1983, the Kemp Drainage District filed an application with the Illinois Department of Transportation requesting a permit to perform work in the channel and floodplain of Deer Creek, Douglas County. The Department denied the application on June 12, 1984. A judicial review of the denial was had in the circuit court; the court held on April 1,1985, that Deer Creek was not a navigable stream, and, therefore, was not under the jurisdiction of the Department of Transportation. There was an unsuccessful appeal in 1985 and other activity in the circuit court ending on December 19, 1988. This claim was filed on December 18,1990.

The Claimant, Kemp Drainage District, pleads that the Department of Transportation wrongly and negligently required the District to apply for a permit causing the District to expend monies for engineering fees unnecessarily, and also, thereby, causing costly delays.

The Court of Claims has jurisdiction over claims for damages sounding in tort “if a like cause of action would lie against a private person or corporation in a civil suit.” Ill. Rev. Stat., ch. 37, par. 439.8(d).

The Illinois Supreme Court has held that a plaintiff cannot recover in tort for solely economic loss. There must be a claim of personal injury or damage to property. Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill.2d 69; Foxcroft Townhouse Owners v. Roffman Rosner Corp. (1983), 96 Ill.2d 150.

It is our finding that the Claimant is seeking to recover for economic loss on a theory of negligence or tort. Thus, the Claimant is pleading a cause of action not within the jurisdiction of this Court. It is therefore ordered that the motion to dismiss of the Respondent is granted, and this claim is dismissed.


source: Caselaw Access Project

author: Patchett, J. Montana, J.

license: Public Domain

text:
    (No. 91-CC-1856
    Frank H. Morris, Claimant, v. The State of Illinois, Respondent.

      Order filed November 26, 1991.

      Order filed February 14, 1992.

    Frank H. Morris, pro se, for Claimant.
    Roland W. Burris, Attorney General (Christine M. Giacomini, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Patchett, J.

This case concerns a claim filed regarding the retention of 10% of a bail bond posted by the Claimant. The Claimant was evidently convicted of a crime in a circuit court of the State of Illinois. The record is silent as to the specifics; however, it is clear from the record that the Claimant filed an appeal to the State of Illinois Third District Appellate Court. That court reversed his conviction. Pursuant to the filing of his appeal, the Claimant also filed a bail bond in appellate court in the amount of $100,000.00, by filing cash in the amount of $10,000.00. The record is clear that the Claimant filed this by cashier’s check No. 310497 issued by the Marine Bank of Champaign-Urbana.

Subsequent to the Third District Appellate Court reversing his conviction, the clerk of that court refunded to the Claimant the sum of $9,000.00 of his bond. Pursuant to statute, specifically Ill. Rev. Stat., ch. 38, par. 110—7(f), the clerk of the appellate court retained 10% of the bond the Claimant had posted as bail bond costs. The Claimant subsequently filed a claim for the return of that money, plus interest, with this Court.

The Respondent has filed a motion to dismiss. The Respondent cites the statute above. This Court is of extremely limited jurisdiction. Although we have jurisdiction over claims against the State of Illinois, this claim clearly does not fall under any category over which we can exercise jurisdiction. The statute cited above plainly provides that the relief the Claimant seeks could only be granted by a court of general jurisdiction. In this case, the Claimant posted the bond with the Third District Appellate Court, and the court was required to retain 10% of the bail bond “unless the court orders otherwise.” If the Claimant seeks relief in the form of having the 10% of his bail bond returned to him, that relief can only be found in the Third District Appellate Court, or another appropriate judicial forum in courts of general jurisdiction in the State of Illinois. The Court of Claims clearly lacks jurisdiction to rule on this claim.

For the above reason, the Claimant’s motion for judgment by default filed herein is denied, and the Respondent’s motion to dismiss with prejudice due to lack of jurisdiction filed herein is granted.

ORDER

Montana, J.

This cause comes on to be heard on the Claimant’s motion to resolve jurisdiction conflict, due notice having been given, and the Court being advised;

It is hereby ordered that the motion at bar is hereby denied.


author: Raucci, J.

text:
    (No. 91-CC-2516
    William G. Shepherd, Claimant, v. Compensation Review Board, Respondent.

      Order filed March 24, 1992.

    Neil F. Flynn, for Claimant.
    Roland W. Burris, Attorney General (Lawrence Rippe, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Raucci, J.

The parties have filed a stipulation which provides as follows:

“IT IS STIPULATED by and between the parties that:
1. That this action is based upon contract, and this court has jurisdiction pursuant to Section 8(a) and (b) of the Court of Claims Act [Ill. Rev. Stat. 1989, ch. 37, pars. 439.8(a),(b)];
2. That Claimant was at all relevant times, and currently is, a citizen and resident of the State of Illinois;
3. That Respondent Compensation Review Board was created and established for the purpose of determining the appropriate compensation for ‘certain appointed state officers of state government.’ (Ill. Rev. Stat. 1989, ch. 63, par. 901 et seq.);
4. That Claimant was appointed by Governor Thompson to the office of ‘Small Business Utility Advocate’ created pursuant to the Illinois Small Business Utility Advocate Act. (Ill. Rev. Stat. 1989, ch. 111 2/3, par. 1201 et seq., Public Act 87-686);
5. That Claimant’s appointment as Small Business Utility Advocate was confirmed by the Illinois Senate on April 15,1986;
6. That Claimant was the first person appointed to and the first person to have served as Small Business Utility Advocate;
7. That Claimant assumed the responsibilities and duties as Small Business Utility Advocate on July 1, 1986, and served in that office and capacity continuously through January 31,1990;
8. That even though Claimant was confirmed by the Senate on April 15, 1986, Claimant did not assume his duties as Small Business Utility Advocate until July 1, 1986 in that the General Assembly did not appropriate any funding for this newly created office until Fiscal Year 1987, beginning July 1,1986;
9. That the Illinois Small Business Utility Advocate Act provides that the person serving in that office
‘shall receive an annual salary as set by the Compensation Review Board but in no case less than that of a commissioner, other than the Chairman, of the Illinois Commerce Commission.’ (Emphasis added.) [Public Act 84-686, Illinois Revised Statutes 1989, ch. 111 2/3, par. 1204(c)]
10. That on April 23,1986, the Compensation Review Board adopted a report which established, inter alia, the salaries of the Small Business Utility Advocate and the Commissioners, other than the Chairman, of the Illinois Commerce Commission as follows:
Beginning Tuly 1,1986
Beginning Tuly Í, 1987
Illinois Commerce Commission Commissioners $58,600
$61,530
Small Business Utility Advocate $55,000
$57,750
11. That from July 1,1986 to June 30,1987, Claimant was compensated at the rate of $55,000 per year. During this same period (July 1,1986 through June 30, 1987), Commissioners, other than the Chairman, of the Illinois Commerce Commission were compensated at the rate of $58,600 per year;
12. That from July 1, 1987 to January 31, 1990, Claimant was compensated at the rate of $57,750 annually, while for the same time period, Commissioners, other than the Chairman, of the Illinois Commerce Commission have been and continue to be compensated at the rate of $61,530 annually;
13. That the salary levels contained in the Compensation Review Board’s Report of April 23,1986 established the compensation applicable to Claimant for and during his term and service as Small Business Utility Advocate;
14. That the April, 1988 Report of the Compensation Review Board set the salaries of the Small Business Utility Advocate and the Commissioners, other than the Chairman, of the Illinois Commerce Commission at the same level;
15. That the April, 1988 Report of the Compensation Review Board was not adopted by the Illinois General Assembly;
16. That the April, 1990 Report of the Compensation Review Board similarly set the salary of the Small Business Utility Advocate and the salary of the Commissioners, other than the Chairman, of the Illinois Commerce Commission at the same level in accordance with Illinois law;
17. That Ill. Rev. Stat., 1989, ch. 127, par. 145 provides in pertinent part that:
‘° ° ° payment of funds as an adjustment to wages paid employees or officers of the State for the purpose of correcting a clerical or administrative error or oversight or pursuant to a backpay order issued by an appropriate state or federal administrative or judicial body or officer shall not be construed as an additional payment for work already performed.’ (Emphasis added.)
18. That the Small Business Utility Advocate Act provides that the person serving in that office receive an annual salary which shall not be less than that of a commissioner, other than the chairman, of the Illinois Commerce Commission;
19. That as of July 1, 1986, the salary for Illinois Commerce Commission commissioners, other than the chairman, was $58,600; and
20. That for the period July 1,1986 through June 30,1987, Claimant was paid $55,000 annually. That for the period July 1,1986 through June 30,1987, Claimant was entitled to be paid $58,600 annually.
Remaining Issues:
The remaining outstanding issue is whether Claimant, as Small Business Utility Advocate, was entitled to receive an increase in his salary beginning July 1, 1987. Claimant maintains that he is entitled to be paid $61,530 annually for the period July 1,1987 through January 31,1990, when Claimant concluded his service as Small Business Utility Advocate. Claimant contends he is, therefore, entitled to a judgment in the amount of $13,365. It is Respondent’s contention that Claimant is not so entitled to be paid $61,530 annually for the period beginning July 1,1987 through January 31, 1990 in that such salary increase constitutes a mid-term salary increase in.violation of Article V, Section 21 of the Illinois Constitution. Respondent contends that Mr. Shepherd is entitled to a judgment in the amount of $5,796, which amount represents the difference between $58,600 annually and the amount Mr. Shepherd was actually paid for and during his term and service as Small Business Utility Advocate.”

As can be seen from the stipulation, Respondent concedes that Claimant is entitled to $5,796.00, but disputes Claimant’s claim for an additional $7,596.00 which represents the difference between $61,530.00 (a Commerce Commissioner’s salary from July 1, 1987) and $58,600.00 (Claimant’s salary).

Respondent contends that no pay increase can take place during the term for which Claimant was appointed.

The 1970 Constitution of the State of Illinois provides in article V, section 21:

“Officers of the Executive Branch shall be paid salaries established by law and shall receive no other compensation for their services. Changes in the salaries of these officers elected or appointed for stated terms shall not take effect during the stated terms.”

The report of the Compensation Review Board that controls this case was filed April 23, 1986, and became effective June 28, 1986. It set the Claimant’s salary at $55,000.00 effective July 1,1986, and at $57,750.00 effective July 1,1987. The salaries of Commerce Commission commissioners for the same periods were $58,600.00 and $61,530.00 respectively. During his tenure, Claimant received $57,750.00 annually. He resigned effective January 31,1990.

Claimant argues that by virtue of Ill. Rev. Stat. 1989, ch. 111 2/3, par. 1204(c), he is entitled to the salary of a Commerce Commission commissioner. We agree.

The statute provides that he

“shall receive an annual salary as set by the Compensation Review Board but in no case less than that of a commissioner, other than the Chairman ° * (Emphasis added.)

The clear intent of the General Assembly was that Claimant receive a salary no less than a commissioner. The statute, which created Claimant’s office, was obviously enacted prior to his term’s commencement.

In Clayton v. State (1952), 21 Ill. Ct. Cl. 321, in construing the preclusion provision of the prior constitution, we stated:

“None of the evils sought to be eliminated by the constitutional provisions can possibly arise where the change in compensation is automatically accomplished through the happening of a contingency, such as a fluctuation in population over which the office holder has no control, as is the case now before the Court.”

We hold here that the contingency of an increase in a commissioner’s salary was beyond the control of Claimant, and in any event, note that the increase had the force of law on June 28,1986, effective July 1,1987.

It is ordered, adjudged and decreed that Claimant is awarded $13,365.00 in full and complete satisfaction of this claim.


author: Montana, C.J.

text:
    (No. 92-CC-1063
    Peter L. Fowler, Claimant, v. The State of Illinois, Respondent.

      Order filed March 24, 1992.

    Peter L. Fowler, pro se, for Claimant.
    Roland W. Burris, Attorney General, for Respondent.
   ORDER

Montana, C.J.

This cause comes on to be heard on the Claimant’s motion to strike the Attorney General of Illinois as attorney for the Respondent, and on the Court’s own motion, due notice having been given, and the Court being advised, finds:

Claimant Peter L. Fowler, an inmate at Stateville Correctional Center, brought this action on November 18, 1991, seeking payment of $10,000.00 allegedly due him as the result of a settlement reached in a 42 U.S.C. 1983 action in a Federal court. Although it is not clear from his complaint, he appears to also be seeking $5,000.00 in attorneys’ fees purportedly awarded to his counsel in that action. He asks that one of the commissioners of the Court of Claims open a savings account for him in the Chicago area and deposit $5,000.00 of the settlement and that the balance of the settlement be sent to him.

Claimant filed identical motions to strike the Attorney General as counsel for the Respondent in this matter on January 21,1992, and on January 24,1992. The Court cannot fully comprehend Claimant’s reasons for the motion but it appears to us that he is alleging that the Attorney General reneged on certain terms of the purported settlement agreement concerning payment. Representation of the Respondent by the Attorney General is provided for in section 19 of the Court of Claims Act. (Ill. Rev. Stat., ch. 37, par. 439.19.) Claimant has stated nothing in his motion as to why this statute should not be given full force and effect. Rather, with respect to this motion, Claimant has pleaded himself out of this Court. Assuming Claimant’s allegations are true, settlement agreements in §1983 cases require approval of the Federal court and Federal court judgments can be enforced there. Therefore, Claimant is required to exhaust such a remedy before seeking final determination here pursuant to section 24—5 of the Court of Claims Act and section 790.60 of the Court of Claims Regulations. Claimant’s motion will be denied.

This case is also before the Court on the Court’s own motion concerning jurisdiction. Jurisdiction may be raised at any time by any party and by the Court itself. Judgments in §1983 cases run against individuals and not the State. The individuals allegedly involved in this case were said to be employees of the State. The only way the State may be held responsible for payment of a §1983 judgment against them would be pursuant to the Representation and Indemnification Act (Ill. Rev. Stat., ch. 127, par. 1301 et seq.). Claimant has alleged that this Act applies and that he has received an assignment of the Act’s coverage from the employees. It is pursuant to the Act that he brings this claim.

The Representation and Indemnification Act does not provide for payment through the Court of Claims. The Court set forth its position on that act in its decisions in Norman v. State (1983), 35 Ill. Ct. Cl. 896, and has consistently adhered to that position ever since. Murphy v. State (1990), 43 Ill. Ct. Cl. 354; Cornfield & Feldman v. State (1990), 42 Ill. Ct. Cl. 292; Lin v. State (1988, 1989), 41 Ill. Ct. Cl. 80.

For the foregoing reasons, Claimant’s motion is hereby denied and this claim is hereby dismissed.


author: Jann, J.

text:
    (No. 92-CC-1286
    Lincoln Square Partnership, Claimant, v. The State of Illinois, Respondent.

      Order filed February 18, 1992.

    Lincoln Square Partnership, pro se, for Claimant.
    Roland W. Burris, Attorney General (Steven Schmall, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Jann, J.

Claimant filed this claim seeking payment of $113.17 in reimbursement for property taxes paid on a parcel of property leased to the Respondent’s office of the Secretary of State. The claim is made pursuant to an escalation clause in the lease. In its standard lapsed appropriation form complaint Claimant alleged that it made demand for payment but its demand was refused on the grounds that the funds appropriated for such payments had lapsed. The Respondent filed a stipulation agreeing to our entering an award in the full amount sought. The claim is now before us for approval.

This Court is not bound by such stipulations and, based on the record before us, we cannot acquiesce in approving the one at bar for the following reason.

The record indicates that the taxes involved in this case were for calendar year 1990. Calendar year 1990 taxes are payable the following year. We recently said in La Salle National Bank v. State (1991), 43 Ill. Ct. Cl. 266:

“As for the tax escalation clause, it appears to be the parties’ position (see paragraphs 8, 9, and 10 of their motion) that because property tax bills are not sent out until the year after they have accrued they could not be paid due to the lapsing of the funds appropriated for such payments. As the Court indicated at the oral argument (Tr. 40), this position may not be tenable. The contract did not obligate the respondent to pay until the tax bill was sent out during the year after. Until the bill was sent out neither party could know what it would be. The bill could not be paid until the following year. We hold that such obligations are current obligations of the fiscal year in which they become due. This position is consistent with the practice of the Office of the State Comptroller. The Court also notes that such clauses are common in many State leases and to hold otherwise could lead to all such lessors filing claims.” (Emphasis added)

Included in the record in this case are copies of the tax bills and the contract. The tax bills show that payments were due on July 15,1991, and September 16, 1991. Both dates are in the current fiscal year. The escalation clause speaks only of property taxes due and payable during the month of June, but the taxes apparently were not due and payable until later. The contract also requires that the request for the payment be made at a time six weeks into the current fiscal year. The contract further provides that requests for such payments be accompanied by paid receipts. Failure to submit a timely request for payment with the receipts would result in denial of payment under the contract. The record shows that one-half of the taxes were paid after the contract deadline for reimbursement so compliance could not have been timely.

Accordingly, it is hereby ordered that this claim be, and hereby is, denied on the grounds that it is a current year’s obligation if it is an obligation at all.


author: Montana, C.J. Patchett, J.

text:
    (No. 85-CV-1034

      In re Application of Fredia Douglas

      Order filed May 18, 1990.

      Opinion filed March 24, 1992.

    Fredia Douglas, pro se, for Claimant.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (James Maher and Karen McNaught, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Montana, C.J.

This claim arises out of an incident that occurred on November 16, 1984. Fredia Douglas, mother of the deceased victim, Clarence D. Stacker, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1983, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on April 17, 1985, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on November 16, 1984, the victim was fatally shot by an offender who was known to him. The incident occurred on Parkview Road in Frank Holton State Park, Centerville, Illinois. Police investigation revealed that, prior to the incident, the victim had been involved in the use, possession and distribution of illegal narcotics. The victim was pronounced dead at the scene. The offender pled guilty to murder.

2. That section 80.1 of the Act indicates factors used to determine entitlement to compensation. Specifically, section 80.1(d) of the Act states that an award shall be reduced or denied according to the extent to which the victim’s acts or conduct provoked or contributed to his injury or death, or to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim.

3. That it appears from the investigatory report and the police report that, prior to the incident, the victim had been involved in the use, possession and distribution of illegal narcotics.

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

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

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

OPINION

Patchett, J.

Claimant comes to this Court seeking a rehearing after his claim was denied. Claimant’s cause arises out of an incident on November 16, 1984, in which her son, Clarence D. Stacker, was killed. As mother of the victim, Claimant seeks compensation for loss of support and funeral expenses under the Illinois Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1983, ch. 70, par. 71 et seq.

The Court, in its order of May 18, 1990, found the following facts:

1. That on November 16, 1984, the victim was fatally shot by an offender who was known to him. The incident occurred on Parkview Road in Frank Holton State Park, Centerville, Illinois. Police investigation revealed that, prior to the incident, the victim had been involved in the use, possession and distribution of illegal narcotics. The victim was pronounced dead at the scene. The offender pled guilty to murder.

2. That section 80.1 of the Act indicated factors used to determine entitlement to compensation. Specifically, section 80.1(d) of the Act states that an award shall be reduced or denied according to the extent to which the victim’s acts or conduct provoked or contributed to his injury or death, or to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim.

3. That it appeared from the investigatory report and the police report that, prior to the incident, the victim had been involved in the use, possession and distribution of illegal narcotics.

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

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

Pursuant to the Court of Claims Regulations, Claimant made a timely request for a formal hearing on May 21, 1990, and said hearing was held on September 21, 1990. Based on additional testimony presented at the hearing, the commissioner has found these additional facts:

1. That, according to the testimony of Fredia Douglas, Claimant, and Augustus Stacker, uncle of the deceased, the deceased did not participate in the use, possession and distribution of illegal narcotics.

2. That, according to the testimony of both Ms. Douglas and Mr. Stacker, Fred Stacker was the cousin of Clarence Stacker, was with Clarence Stacker, and was also killed in the same incident as Clarence Stacker.

3. That, according to the testimony of Ms. Douglas and Mr. Stacker, Fred Stacker was the only one of the two who participated in the use, possession and distribution of illegal narcotics.

4. That, according to the testimony of Ms. Douglas and Mr. Stacker, only Fred Stacker would have been involved in a transaction of any illegal narcotics on the evening.

5. That the only evidence presented by the Attorney General’s Office at the hearing was hearsay evidence of five witnesses who indicated Clarence Stacker had been involved in the use, possession and distribution of illegal narcotics at some time prior to his death.

6. The Attorney General’s office was unable to present any direct evidence that Clarence Stacker was participating in the use, possession or distribution of illegal narcotics at the time of his death, or in any manner, or at any time, prior to his death.

Section 80.1 of the Act does prescribe that an award to a claimant under the Act shall be reduced or denied based on several criteria. Among these, section 80.1(d) indicates a victim’s actions which have “provoked or contributed to his injury or death, or the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the death or injury of the victim.” This section has been used in several past cases as a ground for denying claims for compensation under the Act.

In In re Application of Martinez (1983), 35 Ill. Ct. Cl. 1029, the Court denied a claim for loss of support and funeral expenses as in the present case. In this case, the Court found that the victim was shot in “an exchange of gun fire.” (35 Ill. Ct. Cl. 1029.) The Court also found that the victim had been engaged in an argument with the defendant, and that this behavior led to the shooting which ended in the victim’s death.

In In re Application of Anaya (1981), 35 Ill. Ct. Cl. 540, the Court also denied a claim for compensation under the Act for the death of a victim who was not engaged in contributory behavior at the time of his death. In this case, the victim had beaten his killer during an incident prior to the killing. The Court found that despite the lapse in time between the beating of the killer by the victim and the death of the victim by shooting, the victim had still contributed to his own death in such a manner as to bar the claimant’s recovery, per section 80.1(d).

In this case there is no evidence that Clarence Stacker had been involved in any illegal activity at the time of his death, other than possibly being the one who initially provided the transportation for Fred Stacker. Additionally, there was little evidence presented that Clarence Stacker had been involved in past illegal activities regarding illegal narcotics, other than the hearsay evidence offered by the Attorney General’s office.

A further indication of Clarence Stacker’s non-involvement in any illegal activity at the time of his death is that the killer, James Harris, was sentenced to 20 years for the death of Clarence Stacker, and received no sentence at all for the death of Fred Stacker, despite having pled guilty to killing both. In addition, the Attorney General’s investigatory report contains little that was not presented by the Attorney General’s office at the hearing.

As a result of these facts, it appears that there is at least some doubt as to the involvement of Clarence Stacker in any illegal activity which may have been the cause of his death. While this possible involvement should be taken into consideration in reducing the amount of Claimant’s award per section 80.1(d), it would appear to be inequitable to allow it to operate as a total bar. In light of these facts and the application of the cases noted above, it is ordered that the Claimant be awarded her claim for funeral expenses in the amount of $2,000.00, but that her claim for loss of support be denied.


author: Sommer, J. Sommer, J.

text:
    (No. 85-CV-1088

      In re Application of Setuko M. Cobb

      Opinion filed January 22, 1991.

      Notice filed January 22, 1991.

      Opinion filed January 30, 1992.

    Timothy O. Malloy and Ronald N. Primack, for Claimant.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (James Maher, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, J.

This claim arises out of an incident that occurred on October 2, 1984. Setuko M. Cobb, wife of the deceased victim, James R. Cobb, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1983, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on May 2, 1985, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on October 2, 1984, the Claimant’s deceased husband, James R. Cobb, age 59, was a victim of a violent crime as defined in section 72(c) of the Act, to wit: murder (Ill. Rev. Stat. 1983, ch. 38, par. 9—1).

2. That the crime occurred in Chicago, Illinois, and all of the eligibility requirements of section 76.1 of the Act have been met.

3. That the Claimant seeks compensation for funeral expenses and for loss of support for herself.

4. That the Claimant paid funeral and burial expenses in the amount of $356.65.

5. That section 72(h) of the Act states that loss of support shall be determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of injury or on $750.00 per month, whichever is less.

6. That the victim’s average net monthly earnings were $592.29. The victim was 59 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 (1978), Life Tables, volume II, his life expectancy would be 76.8 years. The projected loss of earnings for 17.8 years is $126,513.14, which is in excess of $15,000.00, which is the maximum amount compensable under section 80.1(f) of the Act.

7. That the Claimant has received no reimbursements that can be counted as an applicable deduction under section 80.1(e) of the Act.

8. That pursuant to section 80.1(e) of the Act, this Court must deduct $200.00 from all claims (except in the case of an applicant 65 years of age or older), and the amount of benefits, payments or awards payable under the Workers’ Compensation Act, Dramshop Act, Federal Medicare, State Public Aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal Social Security payments payable to dependents of the victim and the net proceeds of the first $25,000.00 of life insurance that would inure to the benefit of the applicant.

9. That after making all the applicable deductions under the Act, the pecuniary loss resulting from the victim’s death is in excess of the $15,000.00 maximum allowed in section 80.1(f) of the Act.

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

11. That the Claimant, Setuko M. Cobb, has filed a civil action, Cobb v. Lee, No. 85 L 23013, in the circuit court of Cook County, Illinois, as a result of the incident. The Claimant, by informing the Attorney General’s office of her pending civil suit, has acknowledged her responsibility to further notify the Attorney General of the final disposition of the civil action, pursuant to section 87 of the Act.

It is therefore, hereby ordered that the sum of $15,000.00 be and is hereby awarded to Setuko M. Cobb, wife of James R. Cobb, an innocent victim of a violent crime.

NOTICE

TO: Timothy O. Malloy

142 Rimbach

Hammond, Indiana 46320

Compensation having been paid to the above-named claimant(s) pursuant to the provisions of the Illinois Crime Victims Compensation Act (Ill. Rev. Stat, 1983, ch. 70, par. 71 et seq.), you are hereby notified that the State of Illinois claims a charge against any verdict, judgment or decree entered, or any money or property which is recovered on account of the claim, demand or cause of action against the assailant(s) or any third party who may be liable in damages.

You are further notified that if you seek civil damages from the assailant(s) or any third party who may be liable you must give written notice to the Attorney General of the making of said claim or demand or the filing of said suit for such damages. Neither you nor anyone on your behalf has the authority to release the charge accruing to the State of Illinois by any settlement or compromise with any party who may be liable to you for damages.

OPINION

Sommer, J.

This cause comes before us on a motion to discharge Uen made by the Respondent, represented by the Attorney General.

On January 22,1991, this Court awarded the Claimant $15,000 as compensation for funeral expenses and loss of support pursuant to section 72(h) of the Crime Victims Compensation Act. (Ill. Rev. Stat., ch. 70, par. 72(h).) The award was the maximum amount available under the Act at the time of the crime; however, the Claimant’s loss under the Act was substantially greater.

The Claimant also filed suit against the offender and received a settlement of $15,000 on October 16, 1991. The State has a valid lien against this amount as per section 87(c) of the Act. The Attorney General is petitioning that this lien be waived.

The issue of waiver of the lien has been considered by this Court recently in In re Application of Lavorini (1989), 42 Ill. Ct. Cl. 390. In that claim, the Claimant was seeking a lien waiver even though the circuit court award fully compensated him for his injuries, as measured under the Act.

In Lavorini, supra, this Court recognized that the Crime Victims Compensation Act provides assistance to crime victims when aid is not forthcoming from other sources. The request to waive the lien in the Lavorini claim, if granted, would have abrogated the basic scheme of the Act by granting aid over and above the amount of loss, as determined by the Act. The Court stated that:

“Such a deviation from the scheme of the Act would require statutory authorization.” Lavorini, supra, at 392.

Further the Court stated that:

“As there is no statutory authorization to waive or reduce liens, this Court has no power to do so.” Lavorini, supra, at 392.

Upon further consideration, this Court’s statement that it must have statutory authorization to reduce or waive the lien is applicable to the situation in the Lavorini claim. However, where the circuit court award does not compensate the Claimant fully, as defined by the Act, and the Claimant’s award under the Act added to the circuit court’s award still does not fully compensate the Claimant, waiver of the lien does not violate the basic scheme of the Act. It is therefore, ordered that the motion to discharge lien of the Respondent, by the Attorney General, is hereby granted and the lien filed on January 22,1991, is discharged.


author: Poch, J. Patchett, J.

text:
    (No. 86-CV-0760

      In re Application of Jeanette M. Crissie

      Opinion filed June 20, 1986.

      Notice filed June 20, 1986.

      Order filed February 21, 1992.

    Steven M. Shaykin, for Claimant.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (Sallie Manley and James A. Tyson, Jr., Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Poch, J.

This claim arises out of an incident that occurred on December 16, 1984. Jeanette M. Crissie, wife of the deceased victim, Anthony V. Crissie, 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 January 14, 1986, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That the Claimant’s husband, Anthony V. Crissie, age 49, was a victim of a violent crime as defined in section 72(c) of the Act, to wit: murder (Ill. Rev. Stat. 1979, ch. 38, par. 9—1).

2. That on December 16, 1984, the victim was shot by an unknown offender. The incident occurred in a parking lot located at 5610 South 6th Avenue, Countryside, Illinois. Police investigation revealed that the victim was sitting in a car when he was shot several times. Police could find no motive for the shooting. The victim was pronounced dead on arrival at LaGrange Community Hospital.

3. That the Claimant, Jeanette M. Crissie, seeks compensation for funeral expenses and for loss of support.

4. That the Claimant incurred funeral and burial expenses as a result of the death in the amount of $7,730.00. Pursuant to section 72(h) of the Act, funeral and burial expenses are compensable to a maximum amount of $2,000.00.

5. That section 72(h) of the Act states:

«o o o joss 0f support shall be determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of the injury or on $750.00 per month, whichever is less.”

6. That the victim allegedly was self-employed during the six months prior to the incident. The Claimant was asked to submit copies of the victim’s Federal income tax returns to substantiate his earnings. However, no returns were filed for either 1983 or 1984. The Claimant did submit a copy of the victim’s tax return for 1982 which showed that the victim’s business suffered a net loss of $52,712.59.

7. That based on the fact that no tax returns were filed for 1983 or 1984 and that the victim’s business suffered a net loss in 1982, the Claimant has failed to substantiate that the victim had earnings upon which to base her claim for loss of support.

8. That pursuant to section 80.1(e) of the Act, this Court must deduct $200.00 from all claims (except in the case of an applicant 65 years of age or older), and the amount of benefits, payments or awards payable under the Workers’ Compensation Act, Dramshop Act, Federal Medicare, State Public Aid, Federal Social Security Administration burial benefits, Veterans Administration burial benefits, health insurance, or from any other source, except annuities, pension plans, Federal Social Security payments payable to dependents of the victim and the net proceeds of the first $25,000.00 of life insurance that would inure to the benefit of the applicant.

9. That the Claimant has received $180.00 in burial benefits from the Social Security Administration as a result of the victim’s death that can be counted as applicable deductions.

10. That after making all the applicable deductions under the Act, the Claimant’s loss is in excess of the $2,000.00 maximum award deemed compensable under the Act for funeral benefits.

It is hereby ordered that the sum of $2,000.00 be and is hereby awarded to Jeanette M. Crissie, wife of Anthony V. Crissie, a victim of a violent crime.

It is further ordered that the claim for loss of support be, and is hereby denied.

NOTICE

TO: Steven M. Shaykin

Attorney at Law

188 West Randolph Street

Suite 1507

Chicago, Illinois 60601

Compensation having been paid to the above-named claimants) pursuant to the provisions of the Illinois Crime Victims Compensation Act (Ill. Rev. Stat., 1979, ch. 70, par. 71 et seq.), you are hereby notified that the State of Illinois claims a charge against any verdict, judgment or decree entered, or any money or property which is recovered on account of the claim, demand or cause of action against the assailant(s) or any third party who may be liable in damages.

You are further notified that if you seek civil damages from the assailant(s) or any third party who may be liable you must give written notice to the Attorney General of the making of said claim or demand or the filing of said suit for such damages. Neither you nor anyone on your behalf has the authority to release the charge accruing to the State of Illinois by any settlement or compromise with any party who may be liable to you for damages.

ORDER

Patchett, J.

This cause comes before the Court upon the motion for rehearing filed by the Claimant regarding the previous denial of her claim for loss of support. On December 16, 1984, Anthony Crissie, husband of the Claimant, was shot and killed by an unknown offender. On January 14, 1986, the Claimant filed an application for benefits seeking compensation pursuant to the Crime Victims Compensation Act, hereinafter referred to as the Act. (Ill. Rev. Stat. 1979, ch. 70, par. 71 et seq.) Claimant sought compensation for funeral expenses and loss of support.

On June 20, 1986, this Court entered an order finding that Anthony Crissie was a victim of a violent crime. The Court awarded the Claimant $2,000.00 for funeral expenses, but denied her claim for loss of support. The Court stated that since the victim filed no tax returns for 1983 or 1984, and that the victim’s business suffered a net loss in 1982, Claimant failed to substantiate that the victim had earnings upon which to base her claim for loss of support. The Claimant then filed a request for a hearing on the question of loss of support. That hearing was held on October 28, 1987, before Commissioner Terrance Lyons, Jr. The case was subsequently transferred, without decision, to Commissioner Michael Fryzel on August 3, 1989. On March 6, 1990, a status hearing regarding this case was held. A subsequent status hearing was held on May 15, 1990, at which time all parties agreed that the commissioner would make his findings and recommendations based on the transcript of the October 28, 1987, hearing. No additional argument was filed by either side.

A transcript of that hearing showed that the attorney for the Claimant attempted to prove by testimony and submission of utility bills, and a copy of the 1986 tax return, that the victim had income and did pay .household bills. The Claimant further testified that the victim gave her money when she needed to pay bills, and that her only income was $840.00 in 1984.

In addition, the victim’s two sons testified that, although they did not know exactly how their father earned his income, they believed he paid all the bills incurred by himself and the Claimant. Testimony was inconclusive as to just how the victim made his living and exactly what income he earned.

Section 72(h) of the Act states,

“o o e jQSS Qf support shall be determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of the injury or on $750.00 per month, whichever is less.”

(This was the language of the Act at the time of the victim’s death and when the claim was filed.) The 1982 tax return filed by the victim showed a net loss of $52,712.59. No returns were filed at all for 1983 or 1984. Copies of the utility bills prove only that they were paid, but do not prove income or earnings of the victim.

The evidence and testimony presented at the October 28, 1987, hearing clearly did not satisfy the requirements of the Act in proving any monthly earnings six months prior to the victim’s death. For that reason, we deny this claim for support.


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

text:
    (No. 87-CV-1142

      In re Application of Gerald Wayne Bavido

      Opinion filed July 31, 1990.

      Notice filed July 31, 1990.

      Opinion filed September 18, 1991.

      Order filed November 15, 1991.

      Order filed February 3, 1992.

      Order filed March 24, 1992.

    Gerald Wayne Bavido, pro se, for Claimant.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (James Maher and Beth Emery, Assistant Attorneys General, of counsel), for Respondent.
   OPINION

Sommer, J.

This claim arises out of an incident that occurred on February 13, 1986. The Claimant, Gerald Wayne Bavido, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1985, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on April 16, 1987, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on February 13,1986, the Claimant, Gerald Wayne Bavido, age 35, was a victim of a violent crime as defined in section 72(c) of the Act, to wit: aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12—4).

2. That the crime occurred in Urbana, Illinois, and the Claimant has complied with all of the eligibility requirements of section 76.1 of the Act.

3. That the Claimant seeks compensation for loss of earnings.

4. That section 72(h) of the Act states that loss of earnings shall be determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of the injury or on $750.00 per month, whichever is less.

5. That the Claimant’s average net monthly earnings were $189.53. Claimant was disabled and unable to work for a period of five working days. Based upon $189.53 per month, the maximum compensation for loss of earnings is $43.10.

6. That the Claimant has received no reimbursements that can be counted as an applicable deduction under section 80.1(e) of the Act.

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

It is hereby ordered that the sum of $43.10 be and is hereby awarded to Gerald Wayne Bavido, an innocent victim of a violent crime.

NOTICE

TO: Gerald Wayne Bavido

1317 Fairlawn Drive

Rantoul, Illinois 61866

Compensation having been paid to the above-named claimant(s) pursuant to the provisions of the Illinois Crime Victims Compensation Act (Ill. Rev. Stat., 1985, ch. 70, par. 71 et seq.), you are hereby notified that the State of Illinois claims a charge against any verdict, judgment or decree entered, or any money or property which is recovered on account of the claim, demand or cause of action against the assailant(s) or any third party who may be liable in damages.

You are further notified that if you seek civil damages from the assailant(s) or any third party who may be liable you must give written notice to the Attorney General of the making of said claim or demand or the filing of said suit for such damages. Neither you nor anyone on your behalf has the authority to release the charge accruing to the State of Illinois by any settlement or compromise with any party who may be liable to you for damages.

OPINION

Montana, C.J.

The Claimant, Gerald Wayne Bavido, brought this claim seeking compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1985, ch. 70, par. 71 et seq.

On July 31, 1990, the Court awarded Claimant $43.10 after carefully reviewing the application for benefits submitted by Claimant on April 16, 1987, and after reviewing the investigatory report of the Attorney General. The Court found that Claimant was the victim of a violent crime as defined in section 72(c) of the Act, to wit: aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12—4).

The Court found Claimant’s average net monthly earnings to be $189.53 and that Claimant was disabled and unable to work for a period of five working days. Based upon the $189.53 per month, the maximum compensation for loss of earnings was $43.10, which was the Court’s award. Claimant properly filed a request for hearing or review of the award on August 16,1990. In his request for hearing, Claimant disputed the findings that his average monthly net earnings were only $189.53, that he was only disabled five days, and further requested that his medical bills be paid.

The cause was tried before the commissioner assigned to the case. The evidence consists of the transcript of testimony taken January 25, 1991, before the commissioner, Claimant’s exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9,10,11,12,13,14,15,15a, 16,16a, 17,18,19,20, 21, 22, 23, 24, 25, and Respondent’s exhibits 1 and 2. Claimant also provided the Court with the following documentation:

(a) Letter of May 18,1990, from Dr. Larry Johnson with bill;

(b) Copy of Moore v. Industrial Comm’n (1978), 71 Ill. 2d 353, headnotes only;

(c) Transcript of pages 2 and 7 only of Bavido v. Beasley Cab Co., No. 86 WC 11999, before the Industrial Commission;

(d) Copy of bill from Dr. O’Heam, D.D.S. for $60;

(e) Copy of 1985 W-2 for Claimant from Rantoul Radio Cab, earnings statement for Claimant for part of September (year unstated); earnings statement for October 1985 from Rantoul Cab; wage statement from Western Maintenance Co. for the last quarter of 1985 for Claimant;

(f) Wage statement for Claimant from Caradco for the period 8/22/85 to 9/9/85;

(g) Statement by Claimant of his wages based on his documentation.

All of these documents will be considered by the Court as evidence.

The documentation provided by Claimant will be considered his brief. The State failed to file a brief.

The Facts

On February 3,1986, the Claimant was an innocent victim of an aggravated battery. Claimant was attacked by passengers in the cab he was driving at the time. Many of Claimant’s medical bills were paid by Public Aid. Claimant also filed a workers’ compensation claim. Claimant had no medical insurance.

The Medical Claim: After the beating, Claimant was treated for his injuries, post-concussion syndrome, and various neurological problems. The matter is complicated in that Claimant had an automobile accident post-injury, where he was intoxicated, which added significantly to his condition. He wrecked his car. The Mercy Hospital diagnosis for the car accident injuries included a diagnosis of acute alcoholism. Claimant believed he still owed Dr. Paunicka almost $1,300 and he also still owed Dr. Hardwick. Most of Dr. Hardwick’s bill has been paid. As to Dr. Paunicka and Dr. Hardwick, Claimant was unable to differentiate the billings for treatment for the crime victim injuries and those treatments for the car accident injuries. Claimant also believed he had some unpaid bills with a psychologist named Mrs. Blaylock and a dentist, Dr. Johnson.

Barbara Blaylock, a registered clinical psychologist, indicated in her letter of January 29, 1990, that her best diagnosis is that Claimant suffers from post-traumatic stress disorder, with very high levels of anxiety, depression, and some paranoid ideation. She believes the difficulty appears to have originated from the beating underlying this claim. Barbara Blaylock’s report of May 10, 1990, indicates Claimant was successful in obtaining social security disability payments based on having arthritis of the cervical spine and paranoid personality disorder. Claimant was described to have joint tenderness, reduced right hand grasp strength, slow movements of wrists and fingers, reduced sensation of right hand fingers, numbness in the hands, abnormalities of the lumbosacral spine, inability to lift more than 20 pounds with limited ability to carry, stand, walk, sit or perform bilateral manipulations, and pain during sitting and using arms. Mr. Bavido was therefore judged to be disabled for social security purposes.

A psychological examination by Louise F. Fitzgerald, Ph.D., psychologist from the psychology clinic of the University of Illinois, shared this same diagnosis. Dr. Thomas Radecki, a psychiatrist, entered a diagnosis of probable conversion disorder and mixed personality disorder with intense anger in March of 1987. Psychologist Blaylock stated that either the beating alone or the accident alone would be likely to cause such symptoms as exhibited in Claimant. The two traumatic incidents probably combined to make the symptoms more severe. She feels as of May 1991 that Claimant was not capable of holding a job.

The bills of psychologist Blaylock total $530. She has been paid $390 from a source or sources unknown, leaving a balance due of $140. Claimant presented bills from Dr. Helen Hardwick totaling $1,245 and receipts for payments of $40.

Claimant also presented a statement from Dr. Paunicka indicating a balance due of $1,456.38 and showing minimal cash payments totaling $106.72. There were also some indications of other payments from unspecified sources and bills sent by Dr. Paunicka to Medicare and Public Aid.

Dr. Helen Hardwick first saw Claimant on February 20, 1986, shortly after the beating. The bill for the February 20, 1986, treatment was paid by the workers’ compensation carrier. The next time she saw Claimant was on August 25, 1987, after the auto accident where Claimant’s car flipped over.

Dr. Paunicka’s report of December 5, 1988, attributes his treatment and care mainly to the auto accident where Mr. Bavido “severely injured the spinal column when he flipped a car twice rolling the car” and “caused severe trauma to the spinal column.” In Dr. Paunicka’s report, no mention is made of any injuries or symptoms relating to the beating which is the subject matter of this case. In fact, the injuries and problems of which Claimant now complains were related solely to the auto accident by Dr. Paunicka in his report of December 5,1988.

In Dr. Paunicka’s report of May 11, 1990, Dr. Paunicka admits “it is very difficult for me [sic] distinguish which of the two injuries caused what problems.” Dr. Paunicka refers in that statement to the beating and the auto accident. He further feels Dr. Hardwick, a chiropractor, could best answer the questions of what injuries and treatment were related to each traumatic incident. However, as previously indicated, Dr. Hardwick was unable to differentiate according to her reports.

A Carle Clinic report from Dr. Baddour of December 30,1986, is quite telling. This report indicates:

“Mr. Bavido has had a couple of injuries this year. In February, he was driving a taxi and was apparently beat up by a gang fairly severely. He did not have any arm problems though at that time. He apparently gradually improved. In October of this year, however, he was in apparently a motor vehicle accident. He tells me he blacked out for a number of hours. He has been worked up by Dr. Shoemaker apparently for this in the past. Since that time, he has had arm pain. He says the severe pain has decreased now and the rest of the pain is gradually improving, but it still bothers him quite a bit. He says this is in both arms.”

Claimant presented a report of May 18, 1990, from Larry Johnson, D.D.S. The report indicates Claimant has sensitive and loose teeth that might require further treatment including the possibility of surgical intervention. No causative nexus was presented in the report by Dr. Johnson to the beating of February 1986. The same can be said of two receipts for minimal payments by Claimant to a dentist named O’Hearn provided by Claimant to the Court. No report is included which attributes these payments to any injury sustained in the February 1986 beating.

The Lost Wages Claim,: A letter included in Claimant’s Exhibit 1 prepared by Dorsey Accounting indicates Claimant’s wages for October 1985 through February 1986 totaled $1,600.25. Payroll records indicate no wages were paid to Claimant after February 1986 and Claimant testified he has not worked since, except for a few hours on February 22,1986. In addition to the job at the cab company, Claimant also worked two other jobs.

After the injury, Claimant tried painting jobs but was let go. The employer’s report filed by Beasley Cab Company with the crime victim’s claim only indicated wages as follows: November 1985, $335.28; December 1985, $300; January 1986, $326.20; February 1986, $175.20, for a total of $1,137.18. Claimant presented a W-2 form for 1985 indicating he earned $721.25 in wages and tips from Rantoul Radio Cab Inc. Claimant earned $258.29 gross in September 1985, and $215.12 net for September 1985 from Rantoul Radio Cab. He earned $462.96 gross for October 1985, and $375.74 net for 1985 from Rantoul Radio Cab. Claimant also earned $27 from Western Maintenance Company for the last quarter of 1985, specifically in October 1985, as evidenced by the employer’s report provided by Claimant. Claimant further provided evidence from Caradco, an Alcoa company, that he earned the following amounts during the six-month period prior to the date he became a victim of a violent crime.

Gross Net

(a) Period ending 8/25/85 $80.06 $68.97

(b) Period ending 9/1/85 $249.40 $195.67

(c) Period ending 9/8/85 $169.31 $137.02

(d) Period ending 9/15/85 $43.31 $39.66

The total net income from Caradco totaled $441.32.

Claimant’s Exhibit 10 indicates the fares Claimant had as a cab driver for November 1985 through February 1986. However, without an explanation, it is impossible to figure Claimant’s net income for that period. No explanation accompanied the exhibit nor was any testified to.

The proper evidence before the Court is that Claimant had actual net income for the six-month period prior to the beating as follows:

Caradco Co. $ 441.32

Rantoul Radio Cab 590.86

Beasley Cab Co. 1137.18

Western Maintenance 27.00

Total $2196.36

The correct six-month average monthly net income should be $366.06. It is also a finding that, because of the injuries suffered by Claimant, he was unable to work for longer than five days, although that period attributable to his injuries from the beating is almost impossible to ascertain. Dr. Hardwick saw the Claimant on February 20,1986, seven days after the incident, and Claimant was complaining of trauma to his head and neck. Dr. Hardwick did not see Mr. Bavido again until August 25, 1987, well after the auto accident. In August of 1987, Claimant was in much worse shape than Dr. Hardwick remembered Claimant to be in in February of 1986. There was a back to work assessment provided by Claimant performed at Mercy Hospital in Urbana, Illinois, on June 19, 1986, pursuant to an order of Dr. Young, a psychiatrist. This assessment was done prior to the automobile accident in October of 1986. The diagnosis of Dr. Young was cranial cerebral trauma. One of the recommendations of the back to work center was,

“It does not appear that client would be an appropriate candidate for the Mercy Hospital Back to Work Center Work Hardening Program secondary to only minimal deficits, identified from musculoskeletal and physical capacity evaluations.”

The Law

The Court of Claims has the statutory duty to consider all the facts stated in Claimant’s application, all other material and information submitted, and the report of the Attorney General. (Ill. Rev. Stat. 1985, ch. 70, par. 79.1.) The Court in this case has considered the Claimant’s application, all the exhibits and documents provided by Claimant, and the Attorney General’s report. The Court has carefully considered all of Claimant’s documentation even though much of this evidence might not be admissible in a court of law. Ill. Rev. Stat. 1985, ch. 70, par. 83.1(b).

Compensation under the Crime Victims Compensation Act is a secondary source of compensation and the Claimant must show that he has exhausted the benefits reasonably available under the Criminal Victims Escrow Account Act or any governmental or medical or health insurance programs, including but not limited to workers’ compensation, the Federal Medicare program, the State Public Aid program, Social Security Administration burial benefits, Veterans’ benefits, and life, health, accident or liability insurance. Ill. Rev. Stat. 1985, ch. 70, par. 80.1(g); In re Application of Goff (1989), 41 Ill. Ct. Cl. 320.

The Claimant has previously been determined by the Court to be a victim of a crime of violence as defined by the Act. (Ill. Rev. Stat. 1985, ch. 70, par. 71(c).) Claimant seeks damages for pecuniary losses. He makes a claim for medical expenses and a claim for loss of earnings and future earnings. Ill. Rev. Stat. 1985, ch. 70, par. 71(h).

Loss of earnings and loss of future earnings are determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of injury or on $1,000 per month, whichever is less. Loss of future earnings is reduced by any income for substitute work actually performed by the victim or by income he would have earned in available appropriate substitute work he was capable of performing but unreasonably failed to undertake. Ill. Rev. Stat. 1985, ch. 70, par. 71(h).

The burden of proof in crime victim compensation cases is on the claimant to prove his damages by a preponderance of the evidence. (In re Application of Debartolo (1984), 36 Ill. Ct. Cl. 442.) A proposition proved by a preponderance of the evidence has been described as one that is more probably true than not true. It is the Court’s duty, as the trier of fact, to weigh all the evidence and determine whether a proposition is more true than not. The Claimant presents a claim for medical expenses and a claim for lost earnings. The Court has scrupulously considered the transcript, the Attorney General’s investigative report, the exhibits of Claimant and Respondent, and the documentation provided by Claimant after the trial. In considering the medical expenses claim, the Claimant has failed to meet his burden of proof. It is the general rule in Illinois that the party seeking to recover damagés has the burden of establishing both the fact he has been injured and a reasonable value of those injuries. Damages may not be awarded on the basis of conjecture or speculation. In re Application of Lopez (1987), 39 Ill. Ct. Cl. 315.

Claimant testified that all of his medical expenses except for some bills to Dr. Paunicka and Dr. Hardwick had been paid by Public Aid or workers’ compensation. The case is complicated in that Claimant was injured in an automobile accident in October of 1986. The Claimant only was treated by Dr. Hardwick once prior to October of 1986 and that bill was paid by the workers’ compensation carrier. Claimant was not treated by Dr. Paunicka prior to the October 1986 automobile accident. Both Dr. Hardwick and Dr. Paunicka were unable to state what treatment they rendered after the October 1986 accident was related to the February 1986 beating and which was related to the October 1986 automobile accident. To enter an award for medical expenses based on this record would be pure speculation. There was no other competent evidence establishing any nexus between a medical bill and the Claimant’s February 1986 injuries. Therefore, the claim for medical expenses must be denied.

For the lost earnings claim, Claimant must prove by a preponderance of the evidence that he had earnings during the six-month period prior to the injury and also the length of time he was unable to work due to his injury and whether he received any benefits that could be set off from an award for loss of earnings. (In re Application of Hogan (1985), 38 Ill. Ct. Cl. 395.) The Claimant has proven by a preponderance of the evidence that he earned net income averaging $366.06 per month for the six-month period prior to the injury and not the $189.53 as previously found by the Court. The Claimant has also proven by a preponderance of the evidence that he was unable to work for a period exceeding the five days as previously found by the Court. Claimant worked for a short while on February 22,1986, but could not continue as a cab driver and has not worked since. The February 22,1986, cab fare sheet indicates Claimant only took in $18.40 in fares and took home only $10.50 on that date.

The length of time Claimant was unable to work due to the injuries sustained from the beating is somewhat speculative. The Back to Work Center evaluation is helpful in this regard as Claimant did not appear to be an appropriate candidate for the Back to Work Center program on June 19, 1986. It would appear from that evaluation that the objective findings were that Claimant could work at that time. It would further appear that any present inability to work would be related solely to the automobile accident of October 1986, wherein Claimant flipped his car and suffered injuries. There is absolutely no proof that the auto accident was in any way caused by the February 1986 beating. Giving the benefit of the doubt to Claimant, a reasonable finding under the circumstances and facts of this case would be that Claimant was unable to work for four months and six days due to the injuries suffered on February 13, 1986. This would total $1,537.45. Subtracting the $10.50 earned by Claimant on February 22, 1986, would leave damages at $1,526.95. However, the review of this case is not complete in that the law requires Claimant to exhaust other available remedies, including workers’ compensation benefits before proceeding to the secondary source, the Crime Victims Compensation Act. (In re Application of Goff, supra.) The evidence indicates that Claimant was injured on the job and made a workers’ compensation claim. The evidence further indicates that the Claimant’s workers’ compensation claim was dismissed for want of prosecution on December 4,1989, for Claimant’s failure to appear at trial. For this failure to exhaust his primary remedies, Claimant’s lost earnings claim must be denied. Claimant cannot abandon his workers’ compensation claim by failing to appear for trial and then seek benefits under the Crime Victims Compensation Act.

However, we will allow Claimant 30 days to provide documentation that the workers’ compensation claim was reinstated and, if so, what amount he recovered. If Claimant fails to file such documentation within 30 days, his request for additional compensation is hereby denied and the clerk’s office is directed to so notify the parties.

ORDER

Montana, C.J.

This cause comes on to be heard on the Claimant’s response to our opinion filed September 18, 1991, due notice having been given, and the Court being advised, finds:

The aforesaid opinion found that Claimant would have been entitled to $1,537.45 in compensation for lost wages but the evidence showed he failed to pursue a workers’ compensation action in that the case was dismissed for want of prosecution for failure to appear at trial. Workers’ compensation benefits are a setoff under the Crime Victims Compensation Act. We did, however, allow the Claimant 30 days to provide documentation that his workers’ compensation action was reinstated and it is on this response that the case is back before us.

Claimant filed a copy of an order which did reinstate the workers’ compensation claim. He also filed a copy of the subsequent decision in which he was awarded over $6,000.00. This sum greatly exceeds the amount of loss we previously found and must be set off. For that reason his claim for additional compensation must be denied.

ORDER

Montana, C.J.

This cause comes on to be heard on the Applicant’s petition to re-open his claim, due notice having been given, and the Court being advised;

It is hereby ordered that the petition is hereby denied and this case is closed.

ORDER

Montana, C.J.

This cause comes on to be heard on the Applicant’s request for a new trial, due notice having been given, and the Court being advised;

It is hereby ordered that the Applicant’s request is denied and the clerk’s office is directed to accept no further pleadings in this case.


author: Raucci, J. Raucci, J.

text:
    (No. 88-CV-0676

      In re Application of Patricia Williams

      Order filed June 1, 1989.

      Order filed September 16, 1991.

    Patricia Williams, pro se, for Claimant.

      Neil F. Hartigan and Roland W. Burris, Attorneys General (Richard J. Krakowski and James Maher, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Raucci, J.

This claim arises out of an incident that occurred on October 18, 1987. Patricia Williams, wife of the deceased victim, Samuel Williams, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1985, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on March 7, 1988, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on October 18, 1987, the victim was shot, allegedly when he attempted to stop a fight between two of his friends. The incident occurred in a parking lot behind a gas station located at 8700 South Stony Island, Chicago, Illinois. Police investigation revealed that after his two friends became involved in an argument, the victim attempted to break up the altercation. Both men then allegedly produced handguns and fired several shots at each other. During this exchange, the victim sustained a gunshot wound to the groin. The victim was taken to Bernard Mitchell Hospital where he expired in the emergency room. The two alleged shooters have been apprehended and charged with involuntary manslaughter. The criminal proceedings against both men are still pending.

2. That in order for a claimant to be eligible for compensation under the Act, there must be evidence of one of the violent crimes specifically set forth under section 72(c) of the Act.

3. That involuntary manslaughter is not one of the violent crimes specifically set forth under section 72(c) of the Act and the Attorney General has, in his investigatory report, concluded that the applicant is ineligible for compensation on that basis.

4. That eligibility under the Act is not conditioned on whatever crime an assailant may eventually be charged with having committed.

5. Based on the facts of this claim, as reported, the Court finds that the Claimant was a victim of a violent crime specifically set forth under section 72(c) of the Act, to wit: murder.

“A person who kills another without lawful justification commits murder if, in performing the acts which cause the death: * * “ (2) He knows that such acts contain a strong probability of death or great bodily harm to that individual or another.” (Emphasis added.) (Ill. Rev. Stat., ch. 38, par. 9—1.)

In the case at bar the Applicant’s decedent stepped into a gunfight. Certainly the shooters knew that there was a strong probability from their actions that death or great bodily harm would result. Under the transferred intent portion of the statute, those actions apply to bystanders.

Accordingly, the conclusions of the investigatory report of the office of the Attorney General are hereby not adopted and this claim is remanded to the office of the Attorney General for further investigation and report not inconsistent with this order.

ORDER

Raucci, J.

The parties have entered into a stipulation whereby the Attorney General’s office has recommended that the sum of $1,820.00 be paid to Patricia Williams, the wife of Samuel Williams, the innocent victim of a violent crime.

Wherefore, it is hereby ordered that,

1. The sum of $1,820.00 be paid to Patricia Williams.

2. It is further ordered that this case be closed.


author: Patchett, J.

text:
    (No. 89-CV-0202

      In re Application of Dorothy Hill

      Opinion filed July 1, 1991.

      Notice filed July 1, 1991.

    Dorothy Hill, pro se, for Claimant.
    Roland W. Burris, Attorney General (James Maher, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Patchett, J.

This claim arises out of an incident that occurred on August 20, 1987. The Claimant, Dorothy Hill, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1985, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on September 8, 1988, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on August 20, 1987, the Claimant, Dorothy Hill, age 36, was a victim of a violent crime as defined in section 72(c) of the Act, to wit: battery (Ill. Rev. Stat. 1985, ch. 38, par. 12—3).

2. That the crime occurred in Chicago, Illinois, and the Claimant has complied with all of the eligibility requirements of section 76.1 of the Act.

3. That the Claimant seeks compensation for medical/hospital expenses.

4. That after considering insurance and other sources of recovery, the Claimant's net compensable loss for medical/hospital expenses is $20.00, which the Claimant has paid.

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

It is hereby ordered that the sum of $20.00 be and is hereby awarded to Dorothy Hill, an innocent victim of a violent crime.

NOTICE

TO: Dorothy Hill

5747 West Erie Street

Chicago, Illinois 60644

Compensation having been paid to the above-named claimant(s) pursuant to the provisions of the Illinois Crime Victims Compensation Act (Ill. Rev. Stat., 1987, ch. 70, par. 71 et seq.), you are hereby notified that the State of Illinois claims a charge against any verdict, judgment or decree entered, or any money or property which is recovered on account of the claim, demand or cause of action against the assailant(s) or any third party who may be liable in damages.

You are further notified that if you seek civil damages from the assailant(s) or any third party who may be liable you must give written notice to the Attorney General of the making of said claim or demand or the filing of said suit for such damages. Neither you nor anyone on your behalf has the authority to release the charge accruing to the State of Illinois by any settlement or compromise with any party who may be liable to you for damages.


author: Dillard, J. Raucci, J.

text:
    (No. 89-CV-0378

      In re Application of Phillip Peebles

      Order filed August 23, 1989.

      Opinion filed March 24, 1992.

    Phillip Peebles, pro se, for Claimant.

      Neil F. Hartigan and Roland W. Burris, Attorneys General (Daniel Brennan and James Maher, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Dillard, J.

This claim arises out of an incident that occurred on October 17, 1987. Phillip Peebles, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1985, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on October 20,1988, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on October 17,1987, the Claimant was shot by an offender who was known to him. The incident occurred as the Claimant was seated in a parked car located near 13th and Wentworth Street, Chicago Heights, Illinois. Police investigation revealed that the offender approached the automobile and attempted to speak with the Claimant. During an ensuing verbal dispute, the offender produced a handgun and shot the Claimant in the arm.

When initially asked by the Chicago Heights Police Department to sign a criminal complaint against the offender, the Claimant declined to do so. When asked to sign a complaint two days later, the Claimant again refused to do so. At this time, the Claimant indicated he did not want to pursue the matter criminally. He then completed and signed a refusal to prosecute form. As a result, the Chicago Heights Police Department cleared the case from any criminal prosecutions.

2. That sections 76.1(b) and (c) of the Act state that a person is entitled to compensation under the Act if the appropriate law enforcement officials were notified of the perpetration of the crime and the applicant has cooperated fully with law enforcement officials in the apprehension and prosecution of the assailant.

3. That it appears from the police report that the Claimant declined to cooperate fully with the law enforcement officials in the apprehension and prosecution of the assailant, in that he refused to sign a criminal complaint against the assailant when asked to do so by the Chicago Heights Police Department on two separate occasions. The Claimant then indicated he did not want to pursue the matter criminally, and he completed and signed a refusal to prosecute form.

4. That by reason of the Claimant’s refusal to fully cooperate with law enforcement officials in the apprehension and prosecution of the assailant as required by the Act, he is not eligible for compensation thereunder.

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

OPINION

Raucci, J.

On October 17,1987, the Claimant, Phillip Peebles, was involved in an incident in which he was shot by an offender who was known to him.

On October 20, 1988, the Claimant filed a claim seeking medical expenses, hospital expenses and loss of earnings pursuant to the provisions of the Crime Victims Compensation Act, hereinafter referred to as the Act. Ill. Rev. Stat. 1985, ch. 70, par. 71 et seq.

On August 23, 1989, the Court of Claims issued an order finding that the Claimant failed to fully cooperate with law enforcement officials in the apprehension and prosecution of the assailant as required by the Act. Sections 76.1(b) and (c) of the Act state that a person is entitled to compensation if the appropriate law enforcement officials were notified of the perpetration of the crime and the applicant has cooperated fully with law enforcement officials in the apprehension and prosecution of the assailant. The Claimant failed to meet those requirements and the Court denied the claim.

On September 12, 1989, the Claimant requested a hearing and on September 6, 1990, a hearing was held before Commissioner Michael E. Fryzel.

At the hearing the Claimant testified on his own behalf. He admitted that he did not sign a complaint against the offender even though he knew and could identify him. He claims he feared for his life and felt he would be harmed if he signed a complaint. He also said he did not trust the police department investigating the incident and received phone calls threatening his life. Aside from his personal fears and mistrust, the Claimant did not present any evidence to show that the order of the Court should be reversed or amended.

It is the finding of the Court that the Claimant failed to meet the requirements of the Act by not fully cooperating with law enforcement officials in the apprehension, and prosecution of the offender.

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


author: Poch, J. POCH, J.

text:
    (No. 90-CV-0082

      In re Application of Mary Curry

      Order filed May 18, 1990.

      Opinion filed March 24, 1992.

    Mary Curry, pro se, for Claimant.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (James Maher, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Poch, J.

This claim arises out of an incident that occurred on July 27, 1988. Mary Curry, Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1987, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits submitted on July 20, 1989, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on July 27, 1988, the deceased victim, Charles Hunter, age 55, was a victim of a violent crime as defined in section 72(c) of the Act, to wit: first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1).

2. That the crime occurred in Chicago, Illinois.

3. That the Claimant seeks compensation for funeral and burial expenses.

4. That section 80.1(c) of the Act states that a person related to the victim is eligible for compensation for funeral expenses provided that such expenses were paid by him.

5. That section 72(f) of the Act defines “relative” as a spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, brother-in-law, sister, sister-in-law, half-brother, half-sister, spouse’s parent, nephew, niece, uncle or aunt.

6. That on her application for compensation, the Claimant indicated that she was the common-law wife of the deceased victim. However, an investigation by the Attorney General’s Office indicates that the Claimant and the victim never lawfully married. Thus, the Claimant is not a relative of the victim as defined in section 72(f) of the Act. Therefore, she is not eligible for compensation for funeral expenses.

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

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

OPINION

POCH, J.

This claim arises out of an incident that occurred on July 27, 1988. Mary Curry, the Claimant, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereinafter referred to as the Act. Ill. Rev. Stat. 1989, ch. 70, par. 71 et seq.

The Court had previously denied the claim based upon the investigatory report of the Attorney General as well as the application for benefits submitted by the Claimant.

The Claimant requested a hearing and this claim was assigned to a commissioner of this Court for a hearing. At the hearing the Claimant testified that she had been living with the deceased victim, Charles Hunter, since 1973. The Claimant and the victim were never married. The victim was married to another woman who resided in Michigan. The victim had never obtained a divorce from his wife. The victim never adopted the Claimant’s children. The victim’s spouse was still living at the time of his death.

Pursuant to section 72(f) of the Act, the Claimant must be related to the victim in order to qualify for compensation. The Claimant’s status is not a relative for purposes of the Act. Section 72(f) defines “relative” and does not include a common-law relationship. Therefore, the Claimant is not a relative of the victim and is not eligible for compensation for payment of the victim’s funeral expense.

The Claimant does not meet the required condition precedent for compensation under the Act.

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


author: Patchett, J. Patchett, J. Patchett, J.

text:
    (No. 90-CV-0084

      In re Application of Patricia L. Duies and James M. Duies

      Orders filed February 5, 1990.

      Order filed October 24, 1991.

    Patricia L. Duies and James M. Duies, pro se, for Claimants.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (James Maher, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Patchett, J.

This claim arises out of an incident that occurred on July 6, 1989. Patricia L. Duies and James M. Duies, mother and father, respectively, of the deceased victim, Scott James Duies, seek compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1987, ch. 70, par. 71 et seq.

This Court has carefully considered the applications for benefits submitted on July 20, 1989, and August 1, 1989, respectively, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on June 6,1989, the victim was stabbed by his girlfriend with whom he shared a residence. The incident occurred at 4630 North Monticello, Chicago, Illinois. Police investigation revealed that during an altercation between the victim and the offender, the victim attempted to hit the offender with an ottoman. The offender then swung a knife at the victim, stabbing him. The Cook County State’s Attorney’s Office declined to file criminal charges against the offender, determining that she was acting in self-defense.

2. That section 80.1 of the Act indicates factors used to determine entidement to compensation. Specifically, section 80.1(d) of the Act states that an award shall be reduced or denied according to the extent to which the victim’s acts or conduct provoked or contributed to his injury or death.

3. That available evidence indicates that during an altercation between them, the victim attempted to strike the offender with an ottoman. In self-defense, the offender swung a knife at the victim, stabbing him.

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

5. That in order for a claimant to be eligible for compensation under the Act, there must be evidence that one of the violent crimes specifically set forth under section 72(c) of the Act occurred.

6. That the actions of the offender did not constitute a crime specifically set forth under section 72(c) of the Act.

7. That section 76.1(d) of the Act states that the claimant is entitled to compensation if the victim and the assailant were not sharing the same household at the time the crime occurred.

8. That the Attorney General’s investigation shows that the victim and the assailant were sharing the same household at the time the crime occurred.

9. That this claim does not meet required conditions precedent for compensation under the Act.

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

ORDER

Patchett, J.

This cause comes to be heard on the Respondent’s motion to dismiss duplicate claim number and add additional claimant, and the Court being fully advised in the premises, finds that claim Nos. 90-CV-0168 and 90-CV-0084 are identical as to cause, and therefore:

It is hereby ordered that the claim No. 90-CV-0168 be, and is hereby, dismissed and the Claimant’s cause of action under the Crime Victims Compensation Act proceed under claim No. 90-CV-0084, under which all information concerning this claim has been merged.

It is further ordered that James M. Duies be listed as a Claimant in claim No. 90-CV-0084.

ORDER

Patchett, J.

This cause comes on for hearing upon the petition for rehearing filed by the Claimants. The Claimants are the mother and father, respectively, of the deceased victim.

On July 6,1989, Scott James Duies was stabbed by his girlfriend. He and his girlfriend shared an apartment at the time of the incident. The incident took place at 4630 North Monticello, Chicago, Illinois, and was investigated by the Chicago Police Department. The Chicago police concluded that the incident arose as a result of an altercation between the victim and the offender. The victim evidently attempted to hit the offender with an ottoman, and the offender then swung a knife at the victim, resulting in his death. The Cook County State’s Attorney declined to file criminal charges against the girlfriend, determining that she was acting in self-defense.

On February 5, 1990, this Court entered an order denying the claim because the actions of the alleged offender did not constitute a crime as set forth under section 72(c) of the Act, because the victim and the assailant were sharing the same household at the time of the victim’s death, and because the victim’s conduct contributed to his death to such an extent as to warrant denial of a claim.

The mother of the victim, Patricia S. Duies, subsequently requested a review of the Court’s decision. On September 6,1990, a hearing was held before a commissioner of this Court. At that hearing, Claimants gave testimony stating that it was their belief that their son was not killed in the act of self-defense. However, they offered no new evidence to rebut the report of the Chicago Police Department or at the investigatory report prepared by the Illinois Attorney General’s Office as a result of this claim. Their testimony consisted of third-party statements, for which they presented no witnesses in corroboration.

Interestingly enough, the Claimants also produced documentation at the hearing regarding funeral expenses of their deceased son. Unfortunately for the Claimants, each of the Claimants, who are now divorced, provided different forms of documentation. Each showed that they paid the funeral expense. Separate funeral director’s reports were filed with the Attorney General’s Office. These reports were signed by different funeral directors and showed different funeral and burial costs. Each of these stated that a different person paid for the funeral.

Even if we were able to overcome the obstacles that previously led to this claim being denied, we would still deny this claim under section 90(a) of the Crime Victims Compensation Act, which provides for compensation to be denied to a person who “* * * willfully misstated or omitted facts relevant to the determination of whether compensation is due.”

For the reasons stated above, we hereby affirm our earlier order denying compensation in this claim.


text:
    (No. 90-CV-0555

      In re Application of June Cavanaugh

      Order filed February 22, 1990.

      Opinion filed December 2, 1991.

    June Cavanaugh, pro se, and Charles A. Marshall, Jr., for Claimant.
    Neil F. Hartigan and Roland W. Burris, Attorneys General (James Maher, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Sommer, J.

This claim arises out of an incident that occurred on September 26, 1989. June Cavanaugh, mother of the minor victim, Nathan Whitman, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. Ill. Rev. Stat. 1987, ch. 70, par. 71 et seq.

This Court has carefully considered the application for benefits súbmitted on October 25,1989, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on September 26, 1989, the victim was injured while riding his bicycle. The incident occurred near Kasey Meadows Park, Hickory Hills, Illinois. The victim related to investigating police officers that he was riding his bicycle when he observed a bright flash. The next thing that he recalled was waking up in an ambulance. The Hickory Hills Police Department was unable to discover any evidence to determine whether the victim sustained his injuries as a result of an accident or an intentional act.

2. That in order for a claimant to be eligible for compensation under the Act, there must be evidence that one of the violent crimes specifically set forth under section 72(c) of the Act occurred.

3. That the Hickory Hills Police Department was unable to determine that the injuries sustained by the victim were the result of an accident or a crime of violence perpetrated against him. Therefore, there is no proof that one of the violent crimes specifically set forth under section 72(c) of the Act occurred.

4. That the Claimant has not met a required condition precedent for compensation under the Act.

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

OPINION

Sommer, J.

On February 22, 1990, this Court entered an order denying this claim. The order included a finding that there was not proof of a violent crime as defined by the Crime Victims Compensation Act. The Claimant timely filed a request to review the order.

A hearing was conducted on this matter on June 27, 1990. The Claimant was represented by Mr. Charles A. Marshall, Jr. Mrs. June Cavanaugh, the mother of Nathan Whitman, the minor victim, was the only witness.

The Claimant presented a variety of documents at the hearing, including a photograph of the minor victim after the injury, a report by the Alliance For Cult Awareness Research and Education (AFCARE), a March 22, 1990, letter signed by Dr. Nicholas Stamat of the Meyer Medical Group, and a letter signed by Lawrence Nikodem of the Partners in Psychiatry.

A week before the incident, the victim had told the Claimant that he witnessed a ritualistic sacrifice of an animal by a group of 15- and 16-year-old children. The group told the victim that they were going to summon the demon on Thursday of the following week at 8:00 p.m. The circumstances of this occurrence were such that the Claimant reported it to the police. An affidavit was produced from the dispatcher for the Hickory Hills Police Department. The dispatcher, Natalie Miller, states that she received the telephone call from the Claimant on September 19,1989.

The following Thursday, September 28, 1989, the victim left his home at 7:15 p.m. on his bicycle. The Claimant received a telephone call from a person at 8:10 p.m. stating that her son had been found injured at Kasey Meadows Park.

The Claimant made the following observations about her son’s injuries and the condition of his bicycle. His injuries were not like he had fallen off a bike. His clothes were covered with blood in the front. There was a big grass stain on the back of his jacket. There were no rips, tears or grass stains on his pants. There were no injuries to his hands. There was no damage to the bicycle.

Additionally, the Claimant testified that the injuries were limited to the victim’s face and it looked like his chin was gone. The nerves in his chin were severed. His top lip was severed and hanging down. His nose was crooked. He had a triangle on his forehead and it was swelling and bleeding. He was conscious, but could not remember what happened to him. Later he told his mother that he recalled seeing a bright flash. The victim is not able to go out of the house alone and is terrified of men.

The Attorney General did not object to any of the testimony or other exhibits offered.

The Hickory Hills Police Department conducted an investigation. The Department concluded that it was unknown whether the injuries were the result of an accident or were intentional.

Dr. Nicholas S. Stamat, M.D., states in his March 22, 1990, letter that his

“impression was that these injuries were not acquired as a result of falling from a bicycle but seemed to be more consistent with receiving multiple blows to the face with a blunt object.”

Dr. Stamat saw the victim at the hospital on the date of the incident. His letter briefly describes the injuries. Mr. Steven M. Slawkin, the clinical chairperson of AFC ARE, states in his letter he “believes that the victim was assaulted by unknown assailants * *

Lawrence R. Nikodem states that the victim is suffering from post-traumatic stress disorder and an adjustment reaction from the night he sustained his injuries. He believes the victim was injured by some kind of traumatic assault.

This case presents a difficult issue for the Court to resolve because there are no witnesses to the incident. Section 9.1 of the Crime Victims Compensation Act directs the Court to consider the facts stated in the application and other material and information. The Court need not consider whether or not the alleged assailant has been apprehended.

This Court finds that Nathan Whitman is a victim as defined by section 2(c) of the Act. It is reasonable to deduce, based upon the opinion of Dr. Stamat and the other information presented by the Claimant, that the victim’s injuries were caused by an assault and battery as defined in article 12 of the Criminal Code of 1961.

The record indicates that the Claimant incurred medical and hospital expenses totalling $5,404.00 as a result of the injuries. The specific expenses detailed in the March 25, 1991, affidavit together with exhibits, none of which were paid by insurance or third parties, are as follows:

a. Palos Community Hospital

Emergency Room $ 90.00

b. Radiology Nuclear Consultants, Inc. 67.00

c. Radiology Nuclear Consultants, Inc. 33.00

d. Palos Community Hospital 2,949.00

e. Jerry Chow, M.D. 1,900.00

f. Neuropsychiatric Institute, Inc. 125.00

g. Advanced Psychiatric Therapies 50.00

h. Partners in Psychiatry 190.00

Total $5,404.00

The Court finds that the victim is eligible for compensation and that the sums listed above be paid jointly to the Claimant and medical providers listed.