author: Hess, J. Hess, J.

text:
    (No. 97-CC-2097
    Thinking Machines Corporation, Claimant, v. The Board of Trustees of the University of Illinois, f/b/o National Center for Supercomputing Applications, Respondent.

      Order filed May 13, 1998.

      Order on petition for rehearing filed September 28, 1998.

    Shefsky & Forelich (Jack Hagerty, of counsel), for Claimant.
    Regina B. Haasis, for Respondent.
   ORDER

Hess, J.

This cause comes before the Court on motions of Respondent to (i) dismiss or strike verified complaint and (ii) transfer venue. For the reasons discussed below, Respondents motion to dismiss is granted.

On December 26, 1996, Claimant filed with the Court Clerk a two-count complaint requesting in count I that this Court enter a declaratory judgment in Claimants favor and against Respondent with respect to certain rights, and in count II alleging breach of contract.

Before proceeding, it would be beneficial to establish the following time-line of events:

31 Mar. 1992 Claimant and Respondent enter into a lease, support and software license agreement (the “agreement”).

31 Mar. 1992 The agreement is amended (“amendment #1”).

06 Aug. 1992 The agreement is amended (“amendment #2”).

02 Feb. 1993 Notice of assignment advising Respondent that Claimant has assigned all right, title and interest in, to and under the Agreement, and the right to receive payments to LaSalle Bank of Lisle (“LaSalle”), an Illinois Bank Corporation.

05 Feb. 1993 Claimant executes in favor of LaSalle, an assignment (the “Assignment”) of the Agreement.

26 Dec. 1996 Claimant files its complaint with the Court Clerk.

25 Mar. 1997 Respondent files its motion to dismiss or strike Claimants complaint.

23 Apr. 1997 Claimant secures a letter agreement (the “letter agreement”) from LaSalle addressing the concerns of Respondent that Claimant has expressly assigned all of its interest, including rights and remedies, to LaSalle.

19 May 1997 Claimant files its response to Respondents motion to dismiss or strike Claimants complaint.

16 Jun. 1997 Respondent files its reply to the response of Claimant.

In its motion to dismiss, Respondent argues that Claimant lacks standing to bring an action for declaratory judgment. Respondent cites a number of cases holding that a party seeking declaratory judgment must possess a personal claim, status, right, or distinct injury which is fairly traceable to Respondents conduct, that is capable of being redressed by the grant of declaratory relief. Respondent argues that Claimant, having assigned all of its interest, including rights and remedies, to LaSalle, has no standing to bring a declaratory action.

In response to Respondent’s motion to dismiss, Claimant produces the letter agreement which Claimant asserts “incontrovertibly establishes that the causes asserted by [Claimant] in the Verified Complaint are owned by [Claimant], and have been since January 3, 1996, (other than approximately $6,500 of attorneys’ fees and costs due LaSalle Bank from [Claimant].” (Claimant’s Response at 4.) Claimant states that “[a]s of March 19, 1997, [Claimant] paid the approximately $6,500 of attorneys’ fees and costs to LaSalle Bank, and LaSalle Bank terminated its security interest in the equipment and software under the Agreement.” Id.

. As assignment, oral or written, is the transfer of some identifiable property, claim or right from the assignor to the assignee. (Buck v. Illinois Nat’l Bank Bank & Trust Co. (2nd Dist. 1967), 79 Ill. App. 2d 101, 106, 223 N.E.2d 167, 169.) The parties must intend to effectuate an assignment at the time of the transfer although no particular language or procedure is necessary. (Id.) If a valid assignment is effected, the assignee acquires all of the interest of the assignor in the property that is transferred. (Id.) The assignee, it has been often said, is placed “in the shoes” of the assignor. Id.

In this instance, the language of the assignment provides:

“Thinking Machines Corporation, a Delaware Corporation (‘Thinking Machines’) hereby sells, assigns, transfers and sets over to LaSalle Bank of Lisle, an Illinois Banking Corporation (‘LaSalle’) its successors and assigns, without recourse except as hereinafter provided, the attached Lease, Support and Software License Agreement dated March 31,1992 (hereinafter referred to as the ‘Contract’), between Thinking Machines and the board of Trustees of the University of Illinois for benefit of the National Center for Supercomputing Applications, as Obligor, and all payments due and to become due thereafter, and all right, title and interest of Thinking Machines’ rights and remedies thereunder, and the right either in LaSalle’s own behalf or Thinking Machines’ name to take all such proceedings, legal equitable or otherwise that Thinking Machines might take, save for this Assignment and hereby grants a first priority security interest in the Equipment and any and all software, Contract and payments thereunder to LaSalle or its assigns (and shall execute all such UCC Financing Statements required to effectuate same.)
# # ft
All of Thinking Machines’ right, title and interest assigned hereunder may be reassigned by LaSalle and any subsequent assignee. It is expressly agreed that, anything herein contained to the contrary notwithstanding Thinking Machines’ obligations under the Contract may be performed by LaSalle or any subsequent assignee without releasing Thinking Machines therefrom; LaSalle or any subsequent assignee shall have no obligation or liability under the Contract by reason of the Assignment be obligated to perform any of Thinking Machines’ obligations under the Contract or to file any claim to take any other action to collect or enforce any payment assigned hereunder.”

There is no automatic reversionaiy language in the agreement or assignment. And, while there is no specific language that Claimant must obtain the consent of Respondent to assign its rights or claims under the agreement, Claimant obtained Respondent s written consent to the assignment to LaSalle by having Respondent, on February 2, 1993, acknowledge and accept a notice of assignment, which states, in pertinent part:

“that Thinking Machines Corporation has assigned all right, title and interest in, to and under the above referenced Agreement, and the right to receive Payments to LaSalle Bank of Lisle (‘Assignee’).”

The terms of both the assignment and the notice of assignment are quite clear: Claimant assigned all of its right, title and interest in, to and under the agreement to LaSalle. There is no automatic reversionary language in the assignment or the notice of assignment. Apparently, Claimant asks the Court to recognize an oral assignment of the agreement from LaSalle back to Claimant.

Illinois law does recognize as valid, unless expressly prohibited by statute, oral assignments of all items of property that are capable of assignment, including rights, claims or choses in action. (Buck v. Illinois Nat'l Bank & Trust Co. (2nd Dist. 1967), 79 Ill. App. 2d 101, 106, 223 N.E.2d 167, 169.) In order to determine whether an assignment has occurred, it is necessary to ascertain the intention of the parties. (Id.) Where, as here, there is no writing evidencing the intention, it is necessary to scrutinize the surrounding circumstances and acts of the parties to ascertain their intentions. Id.

While there is no written assignment of the agreement from LaSalle back to Claimant, Claimant offers into evidence a letter dated April 23, 1997 (the “letter agreement”), bearing the letterhead of its attorneys in this action, but acknowledged and accepted by Leonard Ponte, chairman and chief executive officer of LaSalle. The letter agreement states, in pertinent part:

“3. During 1994, LaSalle incurred attorneys fees and costs of $6,484.05 relating to the [Agreement],

4. On January 3, 1996, LaSalle received a payment from [Respondent] of $2,899,999.99, representing the final payment due from [Respondent] under the [Agreement] dated March 31,1992.

5. As of January 3, 1996, except for the attorneys fees and costs referred to in no. 3 above, LaSalle’s interest in the [Assignment] terminated.

6. Upon LaSalle’s receipt of the payment set forth in No. 4 above, except for the attorney’s fees and costs set forth in No. 3 above, all right, title and interest in the [Agreement] previously possessed by LaSalle reverted to [Claimant].

7. On March 19, 1997, [Claimant] paid LaSalle the sum of $6,484.05, the attorney’s fees and costs set forth in No. 3 above.

8. LaSalle terminated its security interest in the equipment and software under the [Agreement] on March 19,1997.

9. Effective with the termination of the security interest set forth in no. 8 above,- LaSalle possesses no right, title or interest, either legal or equitable, in the [Agreement] [or] the [Assignment].”

The majority of the language of the letter agreement, carefully crafted by counsel for Claimant after Respondent filed its motion to dismiss, does little to shed light on the intention of the parties. Paragraph no. 9, however, clearly states that effective March 19,1997, LaSalle possessed “no right, title or interest, either legal or equitable, in the Agreement.” Other than paragraph no. 9, none of the statements offered in the letter agreement are consistent with an intention of LaSalle to assign all of its right, title and interest in the agreement to Claimant. Consequentiy, the Court finds that it was the intention of LaSalle that the entirety of its right, title and interest in the agreement was assigned to Claimant no earlier than March 19,1997.

It is settled that the rights of the parties are determined as of the date the lawsuit is filed. (CSM Insurance Building, Ltd. v. Ansvar America Insurance Co. (1st Dist. 1995), 272 Ill. App. 3d 319, 323, 649 N.E.2d 600, 604 [citing Bleck v. Cosgrove (2d Dist. 1961), 32 Ill. App. 2d 267, 276, 177 N.E.2d 647, 651].) Where a valid assignment is effected, as in this instance, the assignee acquires all of the interest of the assignor in the property that is transferred. (Buck v. Illinois Nat'l Bank & Trust Co. (2d Dist. 1967), 79 Ill. App. 2d 101, 223 N.E.2d 167, 169.) Having determined that it was the intention of LaSalle that the entirety of its right, title and interest in the agreement was assigned to Claimant no earlier than March 19, 1997, Claimant, the assignor of the assignment, is not the proper party to this litigation. On December 26, 1996, the date the complaint in this case was filed, LaSalle was the assignee of whatever rights and interest Claimant may have claimed in the agreement. Consequently, LaSalle and not Claimant should have filed this action.

Because this Court has concluded that Claimant is without standing to maintain this action, it is unnecessary to consider the merit of Claimants remaining allegations.

For the foregoing reasons, it is hereby ordered that this claim be, and the same is, dismissed, with prejudice.

ORDER

Hess, J.

This cause comes before this Court on Claimants motion for rehearing, filed June 5, 1998. Respondent filed a response to said motion on July 6, 1998. While this response was not timely filed, in the interests of substantial justice it shall be considered by this Court in the determination of this issue. Claimants motion to strike and dismiss Respondents response is therefore denied and the Court shall consider the motions on their merits.

The underlying case at issue here involves what appears to be an extremely complicated and highly advanced supercomputer system supplied to the University of Illinois for the benefit of the National Center for Supercomputing Applications by Thinking Machines Corporation. Said computer was supplied to the University of Illinois under a lease agreement. When Respondent had difficulties making the initial payments it was determined that Claimant and Respondent would seek third-party financing in an effort to salvage the deal. An eventual agreement was reached with LaSalle Rank of Lisle (hereinafter LaSalle), and, pursuant to this financing agreement, a Uniform Commercial Code (UCC) security agreement was properly filed with the Secretary of State.

At an earlier proceeding, Respondent filed and successfully obtained a motion to dismiss based upon this earlier assignment of the Claimants rights to LaSalle. The Court of Claims Regulations (74 Ill. Admin. Code 790.10 et seq.) require that in order for an action to proceed in the Court of Claims the complaint must set forth, among other requirements, “that no assignment or transfer of the claim, or any part thereof or interest therein has been made except as stated in the complaint.”

Claimants motion for rehearing on this matter asserts that this Court misapprehended material facts surrounding the assignment clause in the security agreement. Claimant contends in its motion for rehearing that the assignment from Thinking Machines to LaSalle was an assignment only for financial reasons. That is, Respondent, due to the nature of its funding, was not able to make prompt payments to Thinking Machines. Thinking Machines was unable to operate under this arrangement and both Claimant and Respondent decided that the best course of action was for them to seek third-party financing for the lease. A financing agreement was eventually worked out with LaSalle. LaSalle, being a reasonable commercial lender, required some sort of security before financing a computer leasing deal, which amounted to over $5 million in value. This security agreement was cloaked in the form of an assignment of Thinking Machines’ rights in the computer equipment pursuant to the account becoming delinquent. The terms of the assignment from Thinking Machines to LaSalle are quite clear. Thinking Machines assigned all of its rights and interests under the University of Illinois lease agreement to LaSalle. This assignment was an unequivocal surrender of all the rights Thinking Machines had under the lease agreement. Pending a transfer of LaSalle’s interest back to Thinking Machines, Claimant had no interest in the lease agreement. Thinking Machines claims that LaSalle did assign their interests back to Thinking Machines through an oral assignment.

To determine the intent of an oral assignment, the law requires scrutiny of the surrounding circumstances. (Buck v. Illinois National Bank and Trust Co. (2d Dist. 1967), 223 N.E.2d 167, 79 Ill. App. 101.) The surrounding circumstances of the oral assignment are such that no interests were returned to Thinking Machines before March 19,1997.

Rights of parties are determined on the date the lawsuit is filed. (CSM Insurance Building, Ltd., et al., v. Ansvar America Insurance Co. (1st Dist. 1995), 272 Ill. App. 3d 319, 649 N.E.2d 600.) In this case LaSalle owned, through the effective assignment, the rights which Thinking Machines is trying to assert in the present case. Therefore, LaSalle should have brought this lawsuit, not Thinking Machines.

Furthermore, Claimant' asserts in its motion for rehearing that this order makes LaSalle a necessary party to the lawsuit. Claimant further asserts that, because they are a necessary party, the Court should proceed with this lawsuit. They assert that it was not LaSalle’s intention, upon entering into the assignment, to become the owner of the supercomputer and related software. While this may have been thé subjective intent of LaSalle, unfortunately this Court may only rely on the objective manifestation of the assignment. This objective manifestation makes LaSalle the owner of the cause of action.

For the foregoing reasons, it is hereby ordered that this claim be, and the same is, dismissed, with prejudice.


source: Caselaw Access Project

author: Sommer, C.J.

license: Public Domain

text:
    (No. 97-CC-2926
    Kelly K. Moore, Claimant, v. The State of Illinois, Respondent.

      Opinion filed December 18, 1998.

    Kelly K. Moore, pro se.

    Jim Ryan, Attorney General (Marilyn Thomas, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This claim arises out of an accident which occurred on September 7, 1996. Claimant seeks to recover $555.96 for hospital bills incurred for an injury she sustained when she fell while descending a flight of stairs maintained by Respondent at the New Salem State Park.

The parties waived transcription of the hearing by a court reporter. The record includes Claimants exhibits 1, 2, and 3 and Respondents exhibits 1 and 2. Neither party filed a brief.

Claimant testified that on September 7, 1996, she went to New Salem State Park with her sister, niece and son. After touring the building where the oxen were kept, she proceeded down a flight of six wooden stairs with a wood railing on both sides of the stairs. As she descended the stairs, she noticed there were rocks on the stairs, including the stair on which she fell and the one above it. She described the rocks as pebble size, like the ones you would see in a fish tank. When she noticed the rocks, she turned around to tell her niece to be careful. As she was doing so, she slipped on the rocks on the second stair from the bottom and fell down to the pavement below the stairs. She testified she had used the handrail before she fell but was not holding on to the handrail when she fell. After Claimant fell, her sister, niece and son helped her sit on the stairs since Claimant could not stand up because her left ankle hurt. A member of the park staff, Mr. McKee, came to assist Claimant. She was helped into the front seat of an ambulance and given a ride to her sisters car. Her sister then took her to Memorial Hospital.

At Memorial Hospital x-rays were taken of Claimants ankle. She was informed she had suffered an ankle sprain. Her ankle was put in a brace and she was given crutches. The next day, someone from the hospital called to tell her the x-rays had been misread. She was informed she had suffered a hairline fracture of her ankle and was referred to Dr. Ludwig. Dr. Ludwig treated Claimant's ankle by wrapping it in an Ace bandage then placing it in the brace she received at the hospital. Claimant stated the ankle was still bothering her at the time of the hearing.

Claimant testified she had incurred bills totaling $555.96 as a result of the accident. Claimant’s exhibit 1 contains copies of the bills Claimant had received. She testified the bill for $72 from Sangamon Orthopedic Specialists and the bill for $28 from Clinical Radiologists, S.C. had been paid. The bill for $455.96 from Memorial Medical Center had not been paid and Claimant stated she was being sued by Memorial Medical Center to collect the unpaid bill. Claimants exhibit 3 contains copies of documents pertaining to Memorial Medical Center’s attempts to collect from Claimant in the Circuit Court of Sangamon County in Case No. 98-SC-0072.

On cross-examination Claimant testified she had been at the park for half an hour before the accident occurred and had toured approximately four buildings before entering the building containing the oxen. She entered the building containing the oxen by going up a flight of stairs on the left side of the building and exited the building on the stairs on the right side of the building. Her sister and her son had already descended the stairs before she fell. She first noticed there were rocks on the bottom step when she was on the second or third step from the top. She then noticed rocks on the other stairs. She stated there were approximately four or five rocks on the stair on which she fell. Claimant identified Respondent’s exhibit 1 as a photograph of the building where the accident occurred. She said she fell on the stair in the photograph that is marked with a “C.”

Claimant further testified on cross-examination that she was wearing tennis shoes when the accident occurred. She stated her height was listed on her driver’s license as being five feet, five inches, and she estimated that her weight on the day of the accident was 300 pounds.

Sharon Berstein was presented as a witness by Claimant. She is Claimant’s sister and was with Claimant when the accident occurred. She testified she noticed rocks on the last stair when she was descending the stairs prior to Claimant’s fall. After her sister fell, Ms. Berstein noticed several pebble sized rocks on the stair her sister identified as the one on which she fell.

On cross-examination Ms. Berstein testified she did not see her sister fall. She stated there possibly could have been a dozen rocks on the stair her sister identified as where she fell. Ms. Berstein testified she and her son did not have any problems when they descended the stairs. She also testified she did not use the handrails when she descended the stairs.

Meibom Eugene McKee was presented as a witness for Respondent. Mr. McKee testified that he had been site security officer at New Salem State Park since May 1, 1975. He was working the 4:00 p.m. to midnight shift on September 7, 1996, the date of Claimants accident. He was summoned to respond to an accident report at the building he identified as.the carding mill at 5:05 p.m. The carding mill is the same building Claimant identified as the building where the oxen were kept, which is pictured in Respondents exhibit 1. It was light when Mr. McKee arrived at the accident scene. Mr. McKee testified that when he was filling out an accident report Claimant stated she was holding the rail and descending the stairs when she fell on the second stair from the bottom. He did not recall Claimant saying anything about rocks on the stairs when he filled out the accident report. Mr. McKee did not check the stairs immediately after the accident, but he did return to the site later in the evening. When he examined the stairs where Claimant said she fell he did not notice anything unusual.

David Hedrick was presented as a witness for Respondent. Mr. Hedrick testified he had been site manager at New Salem State Park for 18 years and is responsible for the overall administrative supervision of the park. He checked the carding mill building two times a week. He stated that the stairs where Claimant fell were made of split logs and were 40 inches wide and 12 to 16 inches in depth. The railings on each side of the stairs were 36 inches above the stairs. He had reviewed accident records for the accident site and found three accidents had occurred on the stairs in the last 10 years. These accidents occurred in 1991, 1992 and 1996, and the stairs were in the same condition during these accidents as when Claimant had her accident. Mr. Hedrick did not give any information regarding the details of prior accidents. Mr. Hedrick further testified that the park receives approximately 600,000 visitors a year.

On cross-examination, Mr. Hedrick testified that he could not say on which stair the prior accidents occurred. He further testified he had found that a total of nine accidents had occurred in the entire park in the last 10 years.

This claim appears to be governed by the Recreational Use of Land and Water Areas Act, hereinafter referred to as the Act (745 ILCS 65/1 et seq). Section 3 of the Act provides that, except as provided in section 6 of the Act,- an owner of land owes no duty of care to keep premises safe for entry or use by a person for recreational or conservation purposes, or to give any warning of a natural or artificial dangerous condition, use, structure, or activity on such premises to persons entering for such purposes. Recreational or conservation purpose, as defined in section 2 of the Act, includes any activity undertaken for conservation, resource management, exercise, education, relaxation, or pleasure on land owned by another. Land as defined by section 2 of the Act includes private ways, buildings and structures when attached to the realty. Owner as defined in section 2 of the Act includes the State of Illinois. Section 6 of the Act provides that nothing in the Act limits in any way any liability for willful or wanton failure to guard or warn against a dangerous condition, use, structure, or activity.

The State is not an insurer. For Claimant to prevail in this claim she must prove by a preponderance of the evidence that Respondent willfully or wantonly failed to guard or warn against a dangerous condition, use, structure or activity. A willful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of the impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care. Ziarko v. Soo Line Railroad (1994), 161 Ill. 2d 267, 641 N.E.2d 402, 204 Ill. Dec. 17.

Claimant has not met her burden of proof. The testimony of Claimant and her sister established there were some pebble sized rocks on the stairs. Their testimony also established there were approximately four to 12 pebble-sized rocks on the stair where Claimant fell. The testimony of Mr. Hedrick established that the stairs were 40 inches wide and 12 to 16 inches deep with handrails 36 inches high. The presence of four to 12 pebble sized rocks on a stair 40 inches wide and 12 to 16 inches deep with handrails 36 inches high does not, in and of itself, establish a dangerous condition. In fact, Claimants sister and son safely descended the stair containing the same pebble sized rocks prior to Claimants accident. Claimants sister testified she did not use the handrails when she safely descended all of the stairs.

Even if the presence of the pebble sized rocks presented a dangerous condition, Claimant must prove Respondent knew of the presence of the pebble sized rocks on the stairs or recklessly or carelessly failed to discover their presence in order to prove Respondent willfully or wantonly failed to guard or warn against a dangerous condition. Claimant failed to prove Respondent knew of the presence of the pebble sized rocks on the stairs, or recklessly or carelessly failed to discover their presence. No evidence was presented to show where the pebble sized rocks may have come from, how they arrived on the stairs, or how long they may have been on the stairs. No evidence was presented to show Respondent failed to adequately inspect or maintain the stairs. Also, no evidence was presented to show Respondent had any prior knowledge of any accidents being caused by the presence of pebble sized rocks on the stairs. While the Court is sympathetic with Claimants plight, this claim must be denied due to Claimants failure to prove Respondent willfully or wantonly failed to guard against or warn of a dangerous condition, use, structure, or activity as required by the Recreational Use of Land and Water Areas Act.

It is therefore ordered that this claim is denied.


author: Epstein, J.

text:
    (No. 98-CC-0111
    Arthur Wulf, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 14, 1999.

    Arthur Wulf, pro se.

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

Epstein, J.

This claim for attorneys fees against the Respondents Department of Revenue (“IDR”), based on the common fund doctrine, is before us on the Respondents motion to dismiss for want of jurisdiction. This motion was briefed and orally argued to the full Court.

Because this claim involves the conduct of a Circuit Court probate proceeding and fee awards entered therein, this Court directed the parties to supplement the record on the pending motion with additional documentation of those proceedings (order of November 5, 1998), which both parties did. Following oral argument, Claimant requested leave to submit additional authority, as to application of the common fund doctrine to a probate situation analogous to this case, (see, Estate of Pfoertner (5th Dist. 1998), 298 Ill. App. 3d 1134, 700 N.E.2d 438), which we allow.

Nature of the Claim

Claimant brings this fee claim as the attorney for the estate of Timothy Sneed (the “Estate”), which is in probate in the Circuit Court of Cook County (No. 93 P 10348). The Respondent, through IDR, is a Claimant against the estate and thus, a beneficiary of its funds.

This fee claim is based on the common fund doctrine, an application of the equitable doctrine of unjust enrichment. This doctrine supports an award of legal fees from a fund to an attorney whose legal work resulted in the creation of the fund and in the ultimate financial benefit to its distributees; the driving equitable principle is that in the absence of quantum meruit compensation for the attorney, the fund beneficiaries would reap a windfall from the attorneys uncompensated work, i.e., an unjust enrichment. Scholtens v. Schneider (1996), 173 Ill. 2d 375, 671 N.E.2d 657, 219 Ill. Dec. 490; Brundidge v. Glendale Federal Bank, F.S.B. (1995), 168 Ill. 2d 235, 659 N.E.2d 909, 213 Ill. Dec. 563; Estate of Pfoertner, supra.

The Facts as Alleged

According to the allegations of the complaint (which we must take as true for purposes of the pending motion) and the additional facts asserted in Claimant’s brief (which we generally assume, arguendo, for purposes of this jurisdictional motion), and from the parties’ supplemental submissions of documents from the Circuit Court probate proceedings, it appears that the Claimant was engaged to be counsel of an insolvent estate (of which he was also the administrator). The estate had essentially no available assets, huge debts — particularly federal and Illinois taxes — and substantial receivables, which were mainly uncollected medical fees of the decedent, who had been a freelance radiologist.

Claimant alleges that as counsel for the estate he did the following that warrants an equitable fee award:

(1) collected $130,000 of receivables, thereby creating a fund from which the Respondent benefitted;

(2) negotiated a favorable $42,000 settlement with the I.R.S. of its income tax and estate tax claims which exceeded $250,000 and thus exceeded the assets of the estate (and which were superior, under the priorities of the Illinois Probate Code, to all other claims except administrative expenses), leaving a cash balance in the estate that allowed payment of a $38,000 widows award and funds for Illinois tax payments that otherwise would all have gone to the I.R.S.; and

(3) is responsible for the estate’s payment to the Respondent of $30,000 for estate taxes and $1,500 for Illinois income taxes.

(See complaint, pars. 3-13; Claimants memorandum of law in support of claim; Claimant’s documents to supplement record, pars. 4-8.)

There is approximately $10,000 (or $12,000) now remaining in the Estate. According to the Probate Court pleadings, it appears that the IDR is still seeking the remaining $10,000-$ 12,000 of estate funds, apparently as back income tax claims.

Claimant requests $6,000 as compensation from IDR (apparently from the remaining estate funds that otherwise would go to IDR under its tax claim) under the common fund doctrine for his efforts in creating the estate fund and settling the I.R.S. claims so that funds were available to pay the IDR its estate tax claim (and, presumably, any further payments that IDR may receive from the estates remaining funds). Claimant acknowledges that he was awarded $14,017 of attorneys fees by the Probate Court in 1995, and informs us that the probate judge has refused to allow additional fees, (complaint, pars. 3-13.)

Respondent’s supplemental submission of Probate Court documents reflects that the Probate Court previously awarded Claimant $17,391 of attorney’s fees from the estate (order of July 15, 1994, per Budzinski, J.); it is not clear whether that amount was actually paid to Claimant from estate funds.

Despite the parties’ submission of additional documentation of tire probate proceedings, including the orders awarding attorney fees, it is unclear whether the Probate Court’s awards of attorney’s fees to Claimant encompass all of the work done for the estate, including work benefitting the IDR (as a Claimant), or whether the Probate Court excluded from its award fees that would be allocable to the Respondent’s share of tire probate “fund.” Claimant hints but does not allege in his complaint that the Probate Court declined to award fees allocable to the IDR’s share of tire estate fund due to tire Respondent’s sovereign immunity and to jurisdictional deference to this Court. However, the Probate Court has stayed its final distribution rulings pending this Court’s decision of this claim.

The Jurisdictional Issue

Respondent’s motion to dismiss attacks the subject matter jurisdiction of this Court over this claim, i.e., our authority to adjudicate this particular cause of action. Respondent contends (1) that this Court lacks “equitable jurisdiction” to adjudicate a common fund unjust enrichment claim, or a quantum meruit claim, which are equitable causes of action; (2) that there is no contract with the Respondent that might support this Court’s jurisdiction over State recoupment claims under section 8(e) of the Court of Claims Act (705 ILCS 505/8(e)) (the “Act”); and (3) the statutory exclusion of “civil litigation expenses” from this Court’s jurisdiction in section 8(a) of the Act.

Claimant asserts that this Court has jurisdiction under section 8(a) (“claims founded upon any law of the State of Illinois”) and section 8(e) (“claims for recoupment made by the State of Illinois against any claimant”) of the Act. Claimants section 8(e) argument, however, urges a more general "contract” basis for jurisdiction than merely a “recoupment” basis, and thus relies on section 8(b) (“claims against the state founded upon any contract entered into with the State of Illinois”).

The Jurisdictional Analysis

It is axiomatic, and requires no citation of authority — which is endemic in the reports of this Court as well as those of the Illinois reviewing Courts — that for this Court to have subject matter jurisdiction over a claim, such jurisdiction must be granted to us by statute. This is a statutory Court, and has only those remedial powers and only that adjudicatory jurisdiction that is granted to us by the General Assembly.

Under current law, the only statutory delegation of authority to this Court is set forth in section 8 of the Court of Claims Act (705 ILCS 505/8), as far as we are aware. The jurisdictional analysis, accordingly, is straightforward: does the claim fall within the scope of any of the jurisdictional grants in section 8, i.e., pars. 8(a) through par. 8(i).

For this analytical reason, we must initially reject, at least facially, the Respondents argument that this Court lacks jurisdiction because the claim asserted is equitable and thus requires “equitable jurisdiction” which we lack. This is not the dispositive question.

When the issue is the subject matter of this Court to adjudicate a particular kind of claim for damages, as it is in this case, the notion of “equitable jurisdiction” is irrelevant. It is irrelevant because our jurisdictional statute (section 8 of the Act) does not speak in terms of "legal” or “equitable” claims or jurisdiction. As with any statute, the statutory grants of adjudicatory jurisdiction to this Court must be construed in accordance with their own language.

As argued in this case, the issue of whether this Court can entertain and adjudicate a “common fund” claim for attorneys fees, which as noted above is an equitable unjust enrichment claim, turns on whether unjust enrichment claims fall within the language of section 8(a), section 8(b) or section 8(e) of the Act. We hold that they do not.

Claimants argument centering on this Courts “contract” jurisdiction under sections 8(b) and 8(e) of the Act requires little discussion. This Court has long held that our contract jurisdiction is limited to express contracts with the State and does not encompass implied in law contracts (qwasi-contracts), such as quantum meruit claims. An unjust enrichment claim, insofar as it may be considered to be a “contract” claim, in our view is just another form of quasi-contract that lies outside our contract jurisdiction under section 8(b) of the Act.

Our recoupment jurisdiction under section 8(e) is plainly inapplicable to this case. Indeed, Claimant has it exactly backwards, as section 8(e) recoupment is limited to State recoupment claims against Claimants and has no applicability to Claimants’ claims against the State.

Finally, we come to the most interesting if abstruse argument advanced by this Claimant: the contention that this common fund claim for attorneys fees can rest on this Courts section 8(a) jurisdiction because the fees arise in a probate proceeding that is governed by a “law of the State of Illinois” — the Probate Code.

We need go no further than to observe that the critical requisite of section 8(a) jurisdiction is that the “claim” itself must be “founded upon” an Illinois law. That most commonly occurs when the claim is based on a statutory cause of action — i.e., one expressly created by statute or, arguably, by the Constitution — or an implied statutory cause of action, as when a claim is based on a statutory or constitutional duty that is held to give rise to liability (e.g., on an implied private cause of action theory).

The attorneys fee claim in this case is based on equitable principles; that claim is not “founded upon” the Probate Code and does not arise under or by virtue of that statute. We have not been cited to any provision of the Probate Code that (1) grants this Court jurisdiction over a common fund attorneys fee claim against the State arising in a probate proceeding, or that (2) creates or gives rise to an unjust enrichment or quantum meruit claim for attorneys fees against any creditor of a probate estate. There is therefore, no jurisdictional basis under section 8(a) for this Court to adjudicate a common fund claim. Because we hold that this common fund claim is outside the scope of our section 8(a) jurisdiction, we need not address Respondents argument as to the section 8(a) exclusion of “expenses in civil litigation.”

Because of the Probate Court’s deference to this Court on this claim, and the consequent disruption of the probate proceedings, and in light of our determination that this Court lacks jurisdiction to adjudicate this particular claim, we add some additional observations.

Our analysis of our jurisdiction over this common fund claim is not based on the assumption that this Court has or requires jurisdiction over the estate fund. We entertained this claim, and have considered our jurisdiction to decide it, as a claim against the State no different from any other claim that seeks damages to be paid by the State from duly appropriated funds.

Insofar as this “common fund” fee claim may be a claim against the particular estate funds, we believe that this Court lacks authority to order money paid from those funds; indeed, we find nothing in the Act or in the Probate Code that grants this Court any jurisdiction over the estate or its funds. (See, Reynolds State Bank v. Office of the State Guardian (1998), 51 Ill. Ct. Cl. 332.) Moreover, it is not at all clear that the State s “share” of this probate estates funds, particularly the remaining funds that have not been awarded or paid to the State (and may never be), are now “State funds” that might come under the umbrella of sovereign immunity and under this Courts jurisdiction. We conclude that this Court lacks jurisdiction to award fees from the estate.

We recognize that our determination that this Court lacks jurisdiction over the particular claim and over the probate estate fund will not finally resolve this common fimd fee issue in probate cases where the State is a Claimant against the probate estate. The Illinois reviewing Courts will ultimately have to determine whether the Probate Court may adjudicate a common fund fee claim against a “fund” — or against its holder or its beneficiaries — when one beneficiaiy of the fund is the State. Such a claim may or may not be a claim against the State that is barred in the Circuit Court by the Immunity Act. 745 ILCS 5/1 et seq.

That is an issue that this Court cannot and does not address. We hold only that, under our limited jurisdiction under section 8 of the Court of Claims Act, this Court lacks jurisdiction over this common fund claim and over the probate estates funds.

Order

■' For the foregoing reasons, it is hereby ordered: This claim is dismissed for want of subject matter jurisdiction.

       The inconsistencies in the numbers reported, in the various pleadings and probate documents, to items in the estate (e.g., tax claims and total amounts awarded and paid on some claims) need not be resolved for purposes of the motion to dismiss.

       When the other aspect of subject matter jurisdiction is raised — i.e., the power of the Court to grant a particular remedy — the issue of “equitable” jurisdiction, in the sense of authority to grant equitable remedies, does come into play as this Court has recognized. See, Garimella v. University of Illinois (1997), 50 Ill. Ct. Cl. 350 (Court of Claims lacks jurisdiction to grant injunctive relief).

       This Court’s opinions have articulated this point as a matter of our limited jurisdiction, and sometimes as a lack of “equitable jurisdiction.” See, e.g., Green and Sons Co. v. State (1936), 9 Ill. Ct. Cl. 218; Schutte v. State (1957), 22 Ill. Ct. Cl. 592; Thomas v. State (1968), 26 Ill. Ct. Cl. 252; Marts v. State (1968), 26 Ill. Ct. Cl. 256; Illinois Belli & Belli Co. v. State (1975), 31 Ill. Ct. Cl. 129; Sunley v. State (1976), 31 Ill. Ct. Cl. 176; De Stafano v. State (1978), 32 Ill. Ct. Cl. 118; Hofer v. State (1978), 32 Ill. Ct. Cl. 745; Armstrong v. State (1978), 32 Ill. Ct. Cl. 166; Kent v. State (1978), 32 Ill. Ct. Cl. 471; Central Office Equipment Co. v. State (1979), 33 Ill. Ct. Cl. 90; Klingberg Schools v. State (1979), 33 Ill. Ct. Cl. 184; Wilder Mobile Homes, Inc. v. State (1980), 33 Ill. Ct. Cl. 227; Brighton Building Maintenance Co. v. State (1982), 36 Ill. Ct. Cl. 36; Ward v. State (1989), 35 Ill. Ct. Cl. 398; Melvin v. State (1989), 41 Ill. Ct. Cl. 88; Burke & Smith Chartered v. State (1991), 44 Ill. Ct. Cl. 213; New Life Development Corp. v. State (1962), 45 Ill. Ct. Cl. 65; Keith J. Sennstrom v. State (1993), 46 Ill. Ct. Cl. 304; Glenstone Homeowners Ass’n v. State (1996), 48 Ill. Ct. Cl. 388.


author: Hess, J.

text:
    (No. 98-CC-4066

      In re Application of Patsy Ann Bonnar, Claimant.

      Order filed October 2, 1998.

    Patsy Ann Bonnar, pro se.

    Jim Ryan, Attorney General (Daniel C. Mills, Assistant Attorney General, of counsel), for Respondent.
   ORDER

Hess, J.

This claim is before the Court by reason of the death of William Edward Bonnar, Sr., a battalion chief with the Or-land Fire Protection District. Battalion Chief Bonnar s wife seeks compensation pursuant to the terms and provisions of the Law Enforcement Officers, Firemen, etc. Compensation Act. 820 ILCS 315/1 et seq.

This Court has carefully reviewed the claim for death benefits, together with the evidence presented in the certificate of death, Battalion Chief Bonnar s supervising officer and documentation submitted therewith, Battalion Chief Bonnar s designation of beneficiary form and the report of the Attorney General.

Said evidence reveals the foregoing: Battalion Chief Bonnar died on February 25, 1998, while in the line of duty with the Orland Fire Protection District. The evidence shows that Battalion Chief Bonnar died after completing a self-contained breathing apparatus competency course (SCBA) and returning equipment to a departmental vehicle. The SCBA course subjected Officer Bonnar to physical activities including crawling, climbing and reaching while dressed in full structural firefighting gear with self-contained breathing. The course is used as a simulation of actual fires and emergencies. Battalion Chief Bonnar was subjected to extreme heat during intense physical activity. Battalion Chief Bonnar was found unconscious and not breathing in a departmental vehicle less than 30 minutes after completion of the course. The evidence shows that Battalion Chief Bonnar suffered a massive heart attack. Battalion Chief Bonnar was pronounced dead at Ingalls Memorial Hospital on February 25, 1998. The Cook County Medical Examiner indicates that the cause of death was coronary atherosclerosis.

The Law Enforcement Officers, Firemen, etc. Compensation Act (820 ILCS 315/1 et seq.) requires Claimant to show by a preponderance of the evidence that: (1) officers death was not caused by willful misconduct or intoxication; and (2) the officer was killed in the line of duty. The Act provides, in relevant part, that “‘killed in the line of duty’ means losing ones life as a result of injury received in the active performance of duties as a law enforcement officer, * * * if the death arose within one year from the date the injury was received and if that injury arose from violence or other accidental cause.” Furthermore, the Claimant must file a certificate of death with her claim, which establishes that the accident was the cause of the death.

Battalion Chief Bonnar is survived by his wife, Patsy Ann Bonnar, the Claimant herein, and three children, Colleen Bonnar, William Bonnar, Jr., and Kathleen DeLair. The Claimant submitted two designation of beneficiary forms, one signed by Battalion Chief Bonnar, dated March 4, 1988, the other unsigned and undated. The former states that if Claimant survives him, then she is the sole beneficiary of any payments under the Law Enforcement Officers, Firemen, etc. Compensation Act (820 ILCS 315/1 et seq.). The unsigned, undated form lists Claimant as sole beneficiary.

In this case Claimant has fully complied with all of the requirements established by the pertinent Act. The facts clearly show that Battalion Chief Bonnar s death resulted from a fatal heart attack he suffered after completing training exercises. Furthermore, Battalion Chief Bonnar was acting in the line of duty. He was completing training which was required by the Orland Fire Protection District. Finally, there is no indication in the record that Battalion Chief Bonnar s death was caused by willful misconduct or intoxication.

It is therefore ordered that the claim of Patsy Ann Bonnar, be and the same is hereby allowed, and Claimant is hereby awarded the sum of $100,000 (one-hundred thousand dollars and no cents), pursuant to the Law Enforcement Officers, Firemen, etc. Compensation Act.


text:
    (No. 99-CC-2001
    Ace Coffee Bar, Inc., Claimant, v. The University of Illinois, Respondent.

      Opinion filed May 14, 1999.

    Callahan, Fitzpatrick, Lakoma & McGlynn (Michael G. Conelly, of counsel), for Claimant.
    Quinlan & Grisham, Ltd. (Michael I. Rothstein, of counsel), for Respondent.
   OPINION

Epstein, J.

This claim for declaratory and injunctive relief against the University of Illinois is before the Court on the Respondents section 2 — 619 motion to dismiss for want of subject matter jurisdiction and its section 2 — 615 motion to dismiss for failure to state a cause of action. Claimant has belatedly filed a response to part of the section 2 — 619 motion, which we allow instanter, but not to the section 2 — 615 motion. 735 ILCS 5/2 — 615, 2 — 619.

Nature of the Claim

This claim arises out of a competitive bidding by the Respondent University for the vending food and beverage services at, apparently, its Chicago campus. Claimants complaint alleges that the Respondent issued a request for proposals (“RFP”) in late 1997 that solicited competitive bids for a 5-year contract to provide those vending services, which was followed by a series of communications between University officials and prospective bidders in which the requirements and conditions of the solicited bids were discussed and the University is alleged to have made representations as to particular bid requirements (as to how commission rates could and could not vary for various components of the proposed contract). See pars. 4-10 of complaint.

Claimant alleges that the University improperly awarded the contract to a bidder that violated the bidding requirements (id., par. 11), and asks for declaratory and injunctive relief — presumably at least partly in the alternative — to: (i) declare the winners bid improper, declare all bids rejected, and clarify the RFP terms; (ii) enjoin the “enforcing” of the contract that was entered; (iii) order the Respondent to reconsider the bids that conformed to the RFP and to ascertain the best bid; and (iv) order a rebidding. Id., prayer, at 4.

The Section 2 — 619 Jurisdictional Motion

We necessarily take up the section 2 — 619 motion first, as it attacks this Courts jurisdiction, which is always the threshold inquiry. Respondents motion in this case attacks both aspects of subject matter jurisdiction: (1) remedial jurisdiction, i.e., the Court’s authority or power to grant the relief requested, and (2) adjudicatory jurisdiction, i.e., the Court’s authority to decide a particular issue or claim. Specifically, Respondent asserts that this Court lacks authority to make declaratory judgments or to grant injunctions; and that we cannot adjudicate this claim under our contract jurisdiction (see section 8(b) of the Court of Claims Act, 705 ILCS 50578(b)) because there was no contract between the Claimant and the Respondent on which to predicate such jurisdiction.

Remedial Jurisdiction: Injunctions and Declarations

We need not detail the parties’ arguments on our injunctive power, because this Court has firmly held that we have none. (Garimella v. Board of Trustees of the University of Illinois (1996), 50 Ill. Ct. Cl. 350.) Claimant’s arguments and the decisions it cites were considered in Garimella, supra. Since our decision in Garimella, the General Assembly has not seen fit to enact a statute granting us injunctive power and the Supreme Court has not addressed the issue. We adhere to Garimella. This Court lacks authority to issue the injunctive orders requested in this case.

We reject, however, Respondent’s contention that this Court lacks jurisdiction to make declarations of rights vis-a-vis the State. Although that authority is not spelled out explicitly in the Court of Claims Act, it is implicit in the statute’s grant of authority to adjudicate — to “hear and determine” claims against the State (705 ILCS 505/8), and this Court has issued declarations with and without monetary awards since virtually the Court’s creation in 1903 under several successive enabling Acts, and has previously upheld our declaratory jurisdiction. See, e.g., Toledo, Peoria & Western R.R. Co. v. State (1995), 48 Ill. Ct. Cl. 25, 27, and cases cited therein.

We observe that there are cases where a declaration by this Court — as the Court with the “exclusive jurisdiction” under the State Immunity Act (745 ILCS 5/1 et seq.) and under the Court of Claims Act — can be the only legal remedy for citizens who assert property and contract rights against the State. Such rights cannot ordinarily be enforced in the constitutional Courts, which are ousted of jurisdiction by statutory sovereign immunity unless the State elects to initiate a suit there, which the State may or may not ever choose to do.

Even when the State does elect to sue in the Circuit Court, the defendant’s right to countersue the State in that lawsuit remains limited by sovereign immunity. Even when the State opens the door to Circuit Court jurisdiction, sovereign immunity closes that courthouse door to the point where only “defensive counterclaims that are asserted for the purpose of defeating the state’s action, and not for the purpose of obtaining an affirmative judgment against the state” are permissible. See People ex rel. Manning v. Nickerson (1998), 184 Ill. 2d 245, 249-250, 702 N.E.2d 1278, 1280, 234 Ill. Dec. 375, 377 (State’s claim for injunction to remove building from State land and for damages for use of the property, defendant’s counterclaim for quiet title and ejectment allowed as same issue, but tort counterclaims barred by sovereign immunity).

The Nickerson decision points out a significant category of cases where this Court’s declaratory judgment authority is crucial. These are cases where a citizen disputes the State’s title to real property, such as State easements and other defeasible or contingent interests in land. Without declaratory relief from this Court, a landowner or property Claimant may have no remedy at all to adjudicate their claimed rights. The ability to resolve legal title, which is critical to the free alienability of land and has been a fundamental precept of our English-American legal system for almost a thousand years, strongly militates for some Court to have jurisdiction to determine and declare legal ownership.

Although Illinois’ sovereign immunity doctrine bifurcates jurisdiction between the constitutional Courts and this statutory Court, there is no apparent sovereign immunity reason to prohibit declaratory adjudications of land ownership whenever the State claims to be in title, as long as it is done in the proper forum. Indeed, our Supreme Court has held that such title disputes must be decided by this Court (Gordon v. Department of Transportation (1983), 99 Ill. 2d 44, 457 N.E.2d 403, 75 Ill. Dec. 409; see also, Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975, 21 Ill. Dec. 528), which is inhibited if not prohibited if declaratory judgments are not allowed. And if allowed for that purpose, it is not obvious why they are impermissible for other kinds of claims that may also be “heard and determined” by this Court. Certainly the Court of Claims Act makes no such distinction.

We also observe that, although less common, disputes over personalty can also generate ownership claims in this Court. This Court has even decided the ownership of a submarine embedded in Illinois (albeit in submerged ground). See, Air & T Recovery, Inc. v. State (1996), 48 Ill. Ct. Cl. 490.

While these considerations are not a basis for expanding the purely statutory jurisdiction of this Court beyond the bounds of the statutory language, they are a strong reason not to adopt a cramped view of our authority in cases that we are given the power to “hear and determine.”

For all of these reasons, where the law grants this Court jurisdiction to “hear and determine” a matter (705 ILCS 505/8), and that matter will be “determined” by a declaration of rights, this Court cannot decline to decide the claim merely because a monetary award is not sought or does not then lie. This Court can grant declarations in appropriate cases. Tins conclusion leads us to the second half of Respondents section 2 — 619 motion: whether we have jurisdiction to decide this particular claim.

Adjudicatory Jurisdiction

Respondents section 2 — 6Í9 motion contends that this claim does not fall within section 8(b) of the Court of Claims Act (705 ILCS 505/8(b)) (the “Act”), which is the sole jurisdictional basis asserted by this Claimant. (See par. 3 of complaint.) Section 8(b) is this Courts “contract” jurisdiction that authorizes us to adjudicate “claims against the State founded upon any contract entered into with the State of Illinois.” The jurisdictional analysis of whether this Court is empowered to “hear and determine” this claim under section 8 of the Court of Claims Act is,.therefore, whether this is a claim “founded upon” a contract of the University.

Respondent argues that there is no contract between the Respondent and the Claimant that might support this Courts jurisdiction, and vigorously contends that the RFP itself — which the University issued and to which the Claimant and others responded — is not itself a contract and creates no protectible property (contract) rights under applicable Illinois law, citing Polyvend v. Pickorius (1979), 77 Ill. 2d 287, 395 N.E.2d 1376, but is merely an invitation for the submission of contract offers to the bid sohcitor, here the University, citing Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1st Dist. 1979), 69 Ill. App. 3d 972, 387 N.E.2d 785; Premier Electric Construction Co. v. Board of Education of City of Chicago (1st Dist. 1979), 70 Ill. App. 3d 866, 388 N.E.2d 1088.

We agree that under Illinois law the RFP is not itself a contract and that an RFP does not give rise to contract rights or even, under Polyvend, supra, to protective property rights for due process purposes. Thus, it is fairly clear that no contract claim in the ordinary sense of that term — i.e., a claim sounding in contract, asserting rights that arise by virtue of a contract — is or can be asserted on the basis of the RFP. That exhausts the arguments advanced to us and compels the conclusion that a section 8(b) contract claim is not presented here.

However, this straightforward contract claim analysis leaves one potentially dangling issue. Given the statutory language of section 8(b), we must ask whether this bid dispute can be said to be “founded upon” the one contract that is alleged in the complaint, i.e., the contract awarded to the successful bidder that is challenged here on the ground that it was improperly awarded. Although it seems apparent that this dispute was triggered by the award of the contract, we conclude that that does not make this bid dispute a claim “founded upon” that contract. This claim is ultimately about the bid process, and only incidentally about the awarded contract. In reaching this conclusion, we make no categorical pronouncement on whether or not this Courts section 8(b) contract jurisdiction can extend beyond straightforward breach of contract and contract construction claims. The Court holds only that its section 8(b) jurisdiction does not reach this bidding dispute in which an unsuccessful bidder seeks to remedy an allegedly improper bidding process.

Conclusion and Order

For the foregoing reasons, it is hereby ordered: This claim is dismissed for want of subject matter jurisdiction under section 8(b) of the Court of Claims Act.


author: Per Curiam. Frederick, J.

text:
    (No. 92-CV-2334

      In re Application of Loretha Williams

      Order filed October 5, 1992.

      Opinion filled October 21, 1998.

    Loretha Williams, pro se.

    Roland W. Burris and Jim Ryan, Attorneys General (Charles A. Davis, Jr. and Donald C. McLaughlin, Jr., Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Per Curiam.

This claim arises out of an incident that occurred on February 10, 1991. Loretha Williams, mother of the deceased victim, Harvey Williams, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740 ILCS 45/1 et seq.

This Court has carefully considered the application for benefits submitted on May 7, 1992, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on February 10, 1991, the victim was fatally shot by an offender who was known to him . The incident occurred at the victims residence located at 3234 West Douglas, Chicago, Illinois. Police investigation revealed that, prior to the incident, the victim was involved in a physical altercation with his ex-wife. The victims ex-wife summoned the offender to come to her aid as the victim was sitting on top of her and holding a knife to her face. The offender entered the room and requested that the victim put the knife down. The victim refused and began slashing at the offender with the weapon. As a result of these actions, the offender produced a handgun and shot the victim in an attempt to protect himself. The Cook County States Attorneys office declined to prosecute the offender, indicating that he was acting in his own defense.

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

3. That it appears from the investigatory report and the police report that the victim was assaulting his ex-wife when the offender came to her aid. The victim then attempted to slash the offender with a knife. As a result of these actions, the offender produced a handgun and shot the victim in an attempt to protect himself.

4. That the victims conduct contributed to his death to such an extent as to warrant that the Claimant 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 2(c) of the Act occurred.

6. That the actions of the offender did not constitute a crime specifically set forth under section 2(c) of the Act.

7. 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.

OPINION

Frederick, J.

This claim arises out of an incident that occurred on February 10, 1991. Loretha Williams, mother of the deceased victim, Harvey Williams, seeks compensation for funeral and burial expenses pursuant to the provisions of the Crime Victims Compensation Act, hereinafter referred to as the Act. 740 ILCS 5/1 et seq.

On October 5, 1992, the Court entered an order denying the claim after considering the Attorney General s investigative report. Based on the investigative report and police reports, the Court found that the victim was assaulting his ex-wife when the offender came to her aid. The victim then attempted to slash the offender with a knife. As a result of the victims actions, the offender produced a handgun and shot the victim in an attempt to protect himself. The States Attorney refused to prosecute the offender, indicating that the offender was acting in self-defense.

Pursuant to section 10.1(d) of the Act, an award shall be reduced or denied according to the extent to which the victims 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. In this case, the Court found that the victims conduct contributed to his death to such an extent as to warrant that the Claimant be denied entitlement to compensation. In re Application of Douglas (1992), 44 Ill. Ct. Cl. 432.

On November 16, 1992, the Claimant belatedly filed a request for a hearing. While the Court could deny this claim solely on the basis of the late filing of the request for hearing, the Court has considered the merits of the claim. The cause proceeded to trial before a commissioner of the Court. Claimant, Loretha Williams, testified at the hearing. She testified that she was not present at the time her son was killed. Upon learning of the shooting, she went to the scene and saw her son lying in the hallway of a building. She believes they let him bleed to death, even though the paramedics said they were doing everything they could. She believes the paramedics were not moving fast enough to stop the bleeding, Mrs. Williams had considerable stress based on the death of her son. Claimant paid all of the funeral bills, which totaled $4,900. Claimant called no other witnesses. Claimant called no witnesses who were present at the time her son was shot.

The Respondent introduced the police reports. The interviews of the witnesses contained in the police report all substantiate that the victim was abusing his ex-wife and that Larry Logan shot the victim in self-defense.

The Claimant has the burden of proving her claim of entitlement to compensation by a preponderance of the evidence. (In re Application of Bavido (1992), 44 Ill. Ct. Cl. 449.) Claimant was not present at the shooting and presented no witnesses to dispute the findings in the police reports and investigative report. While the death of Claimants son is tragic and the Court sympathizes with the Claimant for the loss of her son, the Court is bound by rules of law and the requirements of the Act. The Claimant presented no new evidence to show that the police reports were inaccurate.

We find that the victims conduct contributed to his death to such an extent as to warrant that the Claimant be denied entitlement to compensation. This claim does not meet the required conditions precedent for an award of compensation under the Act. In re Application of Hum (1992) , 44 Ill. Ct. Cl. 486; In re Application of Casey (1993) , 46 Ill. Ct. Cl. 610.

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


text:
    (No. 93-CV-1684

      In re Application of Angela Fadragas

      Order filed May 13, 1994.

      Opinion filed March 4, 1999.

    Angela Fadragas, pro se.

    Roland W. Burris and Jim Ryan, Attorneys General (Paul H. Cho and Michael F. Rocks, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Per Curiam.

This claim arises out of an incident that occurred on December 9, 1991. The Claimant, Angela Fadragas, seeks compensation pursuant to the provisions of the Crime Victims Compensation. Act, hereafter referred to as the Act. 740 ILCS 45/1 et seq.

This Court has carefully considered the application for benefits submitted on December 28,1992, on the form prescribed by the Attorney General and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other-evidence submitted to the Court, the Court finds:

1. That on December 9, 1991, the Claimant, Angela Fadragas, age 63, was a victim of a violent crime as defined in section 2(c) of the Act, to wit: aggravated battery. See section 12 — 4 of the Criminal Code. 720 ILCS 5/12 — 4.

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

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

4. That the Claimants private insurance carrier has assumed responsibility for the Claimants medical/hospital expenses.

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

6. That the Claimants average net monthly earnings for the six months prior to the incident were $1,366. Claimant was disabled and unable to work for a period of two months and three working days. Based upon $1,000 per month, the maximum compensation for loss of earnings is $2,136.35.

7. That the Claimant has received $2,473.50 in sick pay benefits that can be counted as an applicable deduction under the Act. This amount exceeds the Claimants compensable loss of earnings under the Act. Therefore, the Claimant is not eligible for compensation for loss of earnings.

8. That pursuant to section 10.1(a) of the Act, a person may be compensated for his pecuniary loss.

9. That the Claimant has not suffered a compensable pecuniary loss as a result of the incident.

10. 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

Frederick, J.

This claim arises out of an incident which occurred on December 9, 1991. The Claimant, Angela Fadragas, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereinafter referred to as the “Act.” 740 ILCS 45/1 et seq.

On May 13, 1994, the Court entered an order denying the claim as the Court found, pursuant to the investigatory report, that Claimant suffered no compensable loss. Claimant made a timely request for hearing.

At the hearing, Claimant testified that, because she was a victim of an aggravated battery, she used up 300 hours of her sick leave at work, as she was absent from work for two months. Pursuant to her employment, upon retirement, unused sick leave was counted as service time and increased her pension. Accumulated sick leave was unlimited at Claimants employment. At retirement, her employer paid 50% of the sick leave to Claimant. Additionally, the employer counted the accumulated sick leave as service time in the company toward figuring the pension amount. Claimant submitted a final statement for vacation and sick leave balances. These forms, along with Claimants testimony, show that she lost 50% of 300 hours times $11.35 per hour or a total of $1,702.50. However, the Court is not able to determine the effect of the loss of 300 hours of sick time on Claimant’s pension from the exhibit or the testimony presented.

The Law

A victim of violent crime may be compensated for her pecuniary losses under the Act within the limits of the Act. However, the Act is a secondary source of compensation and recoveries from various sources are required to be deducted from awards made under the Act, while a hen is established on any possible recoveries from the perpetrator, since the Act is intended to aid innocent victims of crime where aid is forthcoming from no other source. In re Application of Lavorini (1989), 42 Ill. Ct. Cl. 390.

Claimant’s application indicates a claim for certain pecuniary losses. Section 2(h) of the Crime Victims Compensation Act (740 ILCS 45/2h) allows compensation for loss of earnings. Loss of earnings is determined on the basis of the victim’s average net monthly earnings for the six months immediately preceding the date of the injury or on $1,000 per month, whichever is less.

The investigatory report and the Court’s prior order correctly point out that Claimant had no pecuniary loss as defined by the Act because she received sick pay from her employer for the time she was off work. It would appear to the Court that section 7.1(7)(h) (740 ILCS 45/7.1(7)(h)) reasonably covers the situation of the payment of sick leave by Claimant’s employer. The sick leave is a benefit which compensates Claimant and is a primary source of recovery, where the Act is a secondary source of recovery. (In re Application of House (1993), 45 Ill. Ct. Cl. 540.) Claimant’s claim is more a claim for loss of future earnings to the extent she would have been able to cash in 50% of her unused sick leave upon retirement. Section 2(h) (740 ILCS 4572(h)) limits loss of future earnings to loss of future earnings because of disability resulting from the injury. Claimant presented no evidence of disability resulting from the injury in this case.

The Court further finds that Claimant failed to produce any evidence as to the effect of her loss of sick leave on her pension amount in dollar figures that the Court could determine with any certainty. While pensions are specifically excluded as a source which would reduce the amount of benefits (740 ILCS 45/10.1(e)), Claimant has not proven the amount of pension loss, if any, by a preponderance of the evidence. In a proceeding under the Act, the Claimant has the burden of proving all conditions precedent to an award by a preponderance of the evidence. In re Application of George (1993), 45 Ill. Ct. Cl. 483; In re Application of Brown (1992), 45 Ill. Ct. Cl. 476.

Claimant has failed to prove that she suffered a pecuniary loss as defined by the Act. For the foregoing reasons, it is the order of the Court that Claimants claim be, and hereby is, denied.


author: Per Curiam. Epstein, J.

text:
    (No. 93-CV-2303

      In re Application of Marcello Snow

      Order filed December 15, 1995.

      Opinion on rehearing filed April 23, 1999.

    Marcello Snow, pro se.

    Jim Ryan, Attorney General (Paul H. Cho and Donald C. McLaughlin, Jr., Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Per Curiam.

This claim arises out of an incident that occurred on November 9, 1992. The Claimant, Marcello Snow, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740 ILCS 45/1 et seq.

This Court has carefully considered the application for benefits submitted on March 5, 1993, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

1. That on November 9,1992, the Claimant, Marcello Snow, age 20, was a victim of a violent crime as defined in section 72(c) of the Act, to wit: aggravated battery. See section 12 — 4 of the Criminal Code, 720 ILCS 5/12 — 4.

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

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

4. That the Claimant has incurred medical/hospital expenses in the amount of $22,477.98. To date, the Claimant has paid nothing towards this amount.

5. That section 10.1(g) of the Act states that compensation under this Act is a secondary source of compensation and the applicant 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 Administration burial benefits, and fife, health, accident or liability insurance.

6. That the Claimant filed an application for medical assistance with the Illinois Department of Public Aid in November, 1992. This application was denied due to the Claimants noncooperation with the Illinois Department of Public Aid. Therefore, his eligibility for assistance could not be determined and the application was denied.

7. That the Claimant failed to exhaust the remedies reasonably available to him by not utilizing public aid to assist in paying his outstanding medical/hospital expenses. Therefore, pursuant to section 10.1(g) of the Act, the Claimant is not eligible for compensation for medical/hospital expenses.

8. 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 ON REHEARING

Epstein, J.

This claim for compensation under the Crime Victims Compensation Act (740 ILCS 45/1 et seq.) (the “Act”) is back before us on rehearing following a hearing before our Commissioner Blakemore on January 24,1997, which was held pursuant to Mr. Snows request for rehearing of this Courts denial of his application (order of December 15,1995).

This $22,477.98 claim for payment of medical and hospital expenses under the Act arises out of an aggravated battery upon the Claimant that occurred on or about November 9, 1992, when the Claimant was shot. In our initial order, this Court found that Claimant Snow met all of the conditions for compensation under the Act for the 1992 aggravated battery upon him, save one. We denied compensation due to Claimants failure to comply with the mandatory requirements of section 10.1(g) of the Act (740 ILCS 45/10.1(g)) which requires applicants to exhaust, and to prove that they have exhausted, alternatively available benefits for the claimed losses, including public aid:

“(g) compensation under this Act is a secondary source of compensation and the applicant must show that he has exhausted the benefits reasonably available under 0 * ° any governmental or medical or health insurance programs, including, but not limited to*" the State public aid program ° e

The Court denied Mr. Snow’s compensation claim for failure to exhaust his public aid benefits (medical and hospital payments) due to his “noncooperation” with the Department of Public Aid, which amounted to his failure to complete the requisite public aid procedures and to provide adequate information to permit the Department to determine his eligibility. This failure resulted in an automatic denial, which was not appealed. This exhaustion issue is the sole question presented on rehearing.

At the evidentiary hearing, the Claimant’s mother was the principal witness. Although her testimony fails to show that either she or her son followed through on his public aid application in any manner that might suffice, the picture that emerges is troubling, if familiar.

It appears that Mr. Snow was a college student attending an out of town institution, and did not himself actively seek to pursue his public aid application, which had been filled out and filed by his mother while he was being treated at the hospital. When his mother was ultimately informed that the application was denied and that its denial was preventing recovery under the Crime Victims Compensation Act — which she claims, credibly, that she first discovered from this Courts 1995 order, some three years after the application — Claimants mother went to at least two public aid offices in a futile effort to reopen her sons file, but was met with bureaucratic indifference and inability to locate the then-stale application.

That failed effort, of course, is far too little and far too late, to satisfy the exhaustion and proof-of-exhaustion requirements of the Act — even disregarding the fact that Mr. Snow apparently made no effort, and simply left the problem to his mother. However, we find it disturbing that the only notice that appears to have been given (on this record) by the Department of Public Aid that Mr. Snow’s application had been denied was addressed, not to the Claimant or his mother, but to the hospital. If no notice was given to the applicant or to his mother, it is not clear whether or not the public aid file was properly closed.

On this record, however, we cannot find that this Claimant has satisfied the exhaustion requirement of section 10.1(g) of the Act with respect to his potential public aid benefits.

This is not a novel problem in tire administration of the Crime Victims Compensation Act, and under the legislative directive of section 10.1(g), this Court has very limited discretion once the issue has been raised. As this Court held in In re Application of David G. Merta (1988), 41 Ill. Ct. Cl. 328, 334:

“* * * once the Office of the Attorney General raises the issue [of failure to exhaust reasonably available benefits under section 10.1(g)], the Claimant must show that he exhausted the suggested benefits or that the suggested benefits were not reasonably available to him. What is reasonably available necessarily must be judged on a case-by-case basis.”

The Merta opinion cites In re Application of Nagy (1975), 30 Ill. Ct. Cl. 888; In re Application of Dickey (1981), 35 Ill. Ct. Cl. 517; In re Application of Hamilton (1983), 35 Ill. Ct. Cl. 1023; In re Application of Wells (1984), 37 Ill. Ct. Cl. 510; In re Application of Gordon (1986), 38 Ill. Ct. Cl. 464; and In re Application of Hickey (1987), 40 Ill. Ct. Cl. 392; as precedents of this Courts enforcement of the section 10.1(g) exhaustion requirement.

There are only two alternatives to the exhaustion requirement for a Claimant, under the statutory provision: (1) show that the benefits were not, in fact or in law, reasonably available to the Claimant, and (2) show that the benefits, if received, would not have fully satisfied the compensable losses under the Act. In this case, the Claimant has had an opportunity and a full rehearing to attempt to show that he was, in fact, ineligible for public aid benefits, and he has failed to make any such showing (or even an attempt to do so). In this circumstance and in this six-year-old claim, we will not allow a third bite at the apple on that issue.

However, neither the State nor the Claimant has addressed the financial point of the section 10.1(g) exhaustion issue in this case: if the Claimant had exhausted his public aid procedures and had obtained payment from public aid, would the public aid benefit have fully paid the Claimants $22,477.98 medical and hospital bills? If the answer is that public aid would not have paid the full amount, then the failure to exhaust that benefit does not fully bar Mr. Snow’s claim. Whatever amount, if any, would remain to be paid after public aid paid its share would remain a legitimate claim under the Act.

However, at this late date, we will not order yet another hearing to ascertain such facts, which could have been presented well before this point. In the interests of fairness, and in light of the procedural precedents of the Hickey and Merta cases, we will permit the Claimant one final chance, by written submission, to show if he can, that his public aid benefits in 1993 would not have fully paid the $22,477.98 medical and hospital claims in this case.

We will allow Claimant 90 days in which to submit such documentation, and we request the Attorney General s office to cooperate in ascertaining the relevant limits of public aid benefits available to this Claimant (assuming his eligibility). If the Claimant timely files a submission, the Respondent may respond in writing within 14 days thereafter. If no submission is timely filed by the Claimant, this case will remain closed.

For these reasons, it is now ordered:

1. The order of December 15, 1995 denying this claim for failure to comply with the exhaustion requirements of section 10.1(g) of the Act is reaffirmed;

2. This case is closed, subject only to paragraph 3 of this order;

3. Claimant is granted 90 days from the date of this order to file documentation of the amount of his medical and hospital bills that would have been paid by public aid in 1993, if the Claimant had been found eligible and had obtained public aid benefits for his hospital and medical expenses arising out of the incident of November, 1992; upon such timely submission, this case will be reopened.

4. Respondent shall have 14 days to respond in writing to Claimants submission;

5. If no submission is made by Claimant within 90 days after the date of this order, this case shall remain closed with prejudice.


author: Mitchell, J.

text:
    (No. 95-CV-1587

      In re Application of Tama Buss

      Order filed May 10, 1999.

    Chatham & Babka (Grey Chatham, of counsel), for Claimant.
    Jim Ryan, Attorney General (Donald C. McLaughlin, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Mitchell, J.

This claim is before the Court on a hearing for compensation filed by Tama Buss under the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act (740 ILCS 45/1 et seq.). The Claimant filed an application alleging she was entitled to compensation because her 18-year-old daughter, Toni Buss, was killed in an automobile accident involving a drunken driver on December 6,1993.

An order was entered by this Court denying the claim based on the victims contributory conduct, pursuant to section 10.1(d) of the Act. Specifically, the Court ruled that the victims conduct of illegally consuming alcoholic beverages while knowingly riding in a vehicle with a driver who was intoxicated contributed to her death to the extent that the Claimant should be denied compensation. The Claimant made a timely request for a hearing pursuant to section 13.1 of the Act. A hearing was held on August 11, 1998. Evidence adduced at the hearing consisted of the Claimants testimony, a copy of a plea to charge and sentencing and medical and funeral bills. The Respondent attempted to enter into evidence police reports regarding the traffic accident that included witness statements and a statement from Dennis Kane, who was convicted of reckless homicide in connection with the accident. Counsel for the Claimant objected on the grounds of hearsay and the Court took the objection under advisement.

Regarding the hearsay objection, this Court has held that police reports containing hearsay evidence of individuals involved in, and charged with, the incident in question are admissible in claims in the discretion of the Commissioner hearing the case. (In re Application of Ross (1991), 47 Ill. Ct. Cl. 561, 562.) However, the Court will only give such reports the weight they deserve under the circumstances and with knowledge of their technical legal deficiencies. Therefore, the Commissioner overruled the Claimants objection to admission of the police reports as evidence.

The Claimants only pertinent testimony regarding the victims actions was that the victim had left her home on the night of the accident to show an acquaintance how to get to a friends house. According to the police reports and statements of the witnesses and Mr. Kane, Dwayne Tottleben, Dennis Boss and Dennis Kane went to the victims residence so that the victim could direct them to the home of a tattoo artist. On the way, Kane stopped and bought a bottle of liquor and soda. There were some conflicting statements as to whether Kane also bought beer at that time or later. During the groups travels that night, they all were drinking alcohol. There was also a statement that they smoked marijuana. Kane stated that it was his intention to get the victim drunk so that he could have a sexual encounter with her. All of the statements, taken together, establish that the occupants of the car had all been drinking. There is no evidence to contradict that the victim knew that Mr. Kane was drinking that night and could be impaired.

Pursuant to section 10.1(d) of the Act, this Court has denied or reduced compensation in circumstances where a victim knowingly placed himself in a dangerous situation. (Ford v. State (1995), 47 Ill. Ct. Cl. 580; In re Application of Cole (1989), 46 Ill. Ct. Cl. 561.) In Ford, the award was reduced by 25 percent because the victim had prior dealings with drug dealers. Although the victim had rehabilitated himself, one of the drug dealers with whom he had previously dealt was trying to collect money from the victim and shot the victim. In the Cole case, the award was reduced by 50 percent because his voluntary intoxication contributed to his death. The victim had been attacked and fell into a drainage ditch. The victim could not crawl out of the ditch due to his intoxication, the loss of his glasses and the injuries he sustained in the assault. He drowned in the ditch.

The courts of this state also have considered whether the actions of a personal injury plaintiff in remaining in a vehicle with an intoxicated driver constitute contributory negligence. (Rice v. Merchants National Bank (2nd Dist. 1991), 213 Ill. App. 790, 572 N.E.2d 439, 157 Ill. Dec. 370.) In Rice, the Appellate Court affirmed a jury’s verdict reducing an award by one-third because the plaintiff knew that beer was purchased near the beginning of the trip and that the driver consumed some of the beer. The plaintiff also had an opportunity to leave the car when it stopped at a restaurant.

This case is very similar to the Rice case. There is no evidence to contradict that the victim knew that alcohol was purchased and was being consumed by the driver. It also is apparent that the victim had opportunities to leave the vehicle during any one of the numerous stops the group made that night. Therefore, the Court finds that the victim contributed to her death.

The next question is whether the claim should be denied or reduced on this basis. The Court would be well within the parameters of the law to deny the claim outright on the basis of the victim’s contributory behavior. However, the Court believes there are mitigating circumstances that show the victim may not have been able to exercise ordinary due care expected of a reasonable person. The victim was a teenager, subject to peer pressure, and an older man was making a concerted effort to get her drunk in order to have sex with her. In addition, the cases cited above show that, in such cases of contributory acts or negligence, awards are customarily reduced by between 25 and 50 percent.

Regarding the amount of compensation, the Claimant submitted medical and funeral bills for the victim which totaled $14,723.95. Specifically, medical bills totaled $6,476.20. Of this, insurance paid $1,310.35, leaving unreimbursed medical- expenses of $5,165.85. Funeral and burial expenses totaled $8,246.87. Of this, insurance paid $3,000, leaving unreimbursed funeral and burial expenses of $5,246.87. Pursuant to section 2(h), funeral and burial expenses are compensable up to a maximum of $3,000. Thus, the total' amount of compensable expenses is $8,166.70. With a 50 percent reduction for the contributory acts of the victim, the award should total $4,083.35.

Therefore, the Court awards the Claimant $4,083.35 as fuU satisfaction of this claim.


author: Per Curiam. JANN, J.

text:
    (No. 95-CV-2974

      In re Application of Cherannzetta Stagger and Rosetta Johnson

      Order filed May 6, 1996.

      Opinion filed March 3, 1999.

    Cherannzetta Stagger and Rosetta Thompson (Joseph Youngs, of counsel), for Claimants.
    Jim Ryan, Attorney General (Paul H. Cho and Donald C. McLaughlin, Jr., Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Per Curiam.

This claim arises out of an incident that occurred on March 12, 1995. Cherannzetta Stagger, mother of Ashley Cherrell Johnson, minor child of the deceased victim, Andre Lamont Johnson, and Rosetta Johnson, mother of the deceased victim, seek compensation pursuant to the provisions of the Crime Victims Compensation Act. 740 ILCS 45/1 etseq.

This Court has carefully considered the applications for benefits submitted on April 14,1995, and May 2,1995, 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 March 12, 1995, the victim was fatally shot, allegedly by an offender who was known to him. The incident occurred at 11919 South Wallace, Chicago, Illinois. Police investigation revealed that prior to the incident the victim and the alleged offender were playing a dice game when, for unknown reasons, the alleged offender produced a handgun and shot the victim. The alleged offender then fled the scene and has not been apprehended.

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

3. That it appears from the investigatory report and the police report that the victims death was substantially attributable to his involvement in a dice game for money prior to his being shot. Playing dice for money is an illegal act in violation of section 28 — 1 of the Criminal Code. 720 ILCS 5/28 — 1.

4. That the victims conduct contributed to his death to such an extent as to warrant that the Claimant be denied entitlement to compensation.

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

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

OPINION

JANN, J.

This cause involves claims for benefits under the Crime Victims Compensation Act (740 ILCS 45/1 et seq.), hereinafter “the Act.” Ms. Stagger is the mother of Ashley Cherrell Johnson and Andre Johnson, the decedent, was her father. Rosetta Johnson is the mother of Mr. Johnson. The claims were denied and Claimants were granted a hearing before Commissioner Dillard. Claimants were represented by counsel and testified at hearing.

The claims were denied because the decedent was involved in an illegal dice or “craps” game just prior to being shot by another player. Claimants argued that, because the victim did not have more than an eighth grade education, he could not understand that he was involved in an illegal activity when he was shooting craps. The statute in question, section 28 — 1 of the Criminal Code (720 ILCS 5/28 — 1) does not pose that requirement. Also, a 22-year old with an eighth grade education can comprehend many things, and the record does not support the self-serving statements by Claimants as to decedents inability to carry out daily activities independently. The testimony of both Claimants indicates decedent was able to do simple shopping and go on dates. Decedent apparently attended high school but did not graduate. Claimants’ attorney, Mr. Moll, in his request for a hearing, argued that we should distinguish the playing of games from other criminal activity in that games do not “rise to a level which can in any way provoke another to attack and kill another person.” No case law supports this contention. There is no evidence directly refuting decedent’s participation in the illegal game.

In James Kizer v. State (1982), 35 Ill. Ct. Cl. 533, individuals were involved in an illegal card game, playing for money. In Kizer, evidence indicated that a dispute arose when one player sought a return of money from anotiier player. There was a dispute and one of the players shot Kizer. The claim was denied because he had not met a required condition precedent by engaging in illegal activity.

The information in the crime victims’ application forms indicate that Claimants are claiming they received money from decedent based upon sums he collected from SSI and SSA. Pursuant to Mable Tigner v. State (1984), 37 Ill. Ct. Cl. 437, these sums are not considered earnings for purposes of making an award under the Act. Claimants provided no proofs at hearing indicating loss of support from sources independent of decedent’s disability benefits.

Claimants provided no proof of payment of funeral expenses other than their statements at hearing. No expenses were claimed in the application for benefits.

Based upon decedent’s culpability in illegal acts immediately preceding his death and Claimants’ failure to prove compensable pecuniary losses, these claims are denied and dismissed with prejudice.