text:
    (No. 84-CC-0474
    Loewenberg/Fitch Partnership, Claimant, v. The State of Illinois, Respondent.

      Opinion filed June 11, 1986.

    Mohan, Alewelt & Prillaman (Paul Adami, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (G. Michael Taylor, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

The Claimant filed its complaint against the State of Illinois on August 24, 1983. The original complaint sought $116,826.05 in damages based on a contract claim. The Claimant filed an amended complaint on March 28, 1984, seeking $127,417.25 in damages on its contract claim. Trial was held in this cause, the parties have fully briefed the issues, and Commissioner Robert Frederick has filed his report.

The claim is for additional work for certain architectural services for the construction of the Illinois Department of Agriculture office and laboratory building located on the Illinois State fairgrounds in Springfield, Illinois. The contracts which are in evidence were entered into on May 3, 1976, for the original contract, and August 8, 1978, for the revised contract. Certain modifications of the contract are also in evidence.

The State of Illinois did not file an answer but has apparently relied on Rule 10 of the Rules of the Court of Claims to enter a general denial to the complaint.

The claims of the Claimant are listed in its bill of particulars and will be addressed hereinafter in this report by their L/F number. The claims are for AGFX1 through AGFX-32. AGFX numbers 17, 19 and 22, totaling $2,696.40, are not at issue in this case pursuant to paragraph 6 of the amended complaint, wherein it was alleged the Respondent had paid or had agreed to pay these three small claims.

The Facts

The Claimant was the architect/engineer for the construction of the Illinois Department of Agriculture office and laboratory building. Ralph Hahn & Associates were its engineers for the project. The Capital Development Board hired its own separate construction manager. The project was supposed to take 22 months to complete but ended up taking close to five years. The Claimant is seeking only additional on-site time which it feels is mandated by the contract. It is not claiming any additional monies for contract administration. It is also claiming payment for extra work which was requested by the Capital Development Board. These items were billed to the Capital Development Board with documentation. Claimant was advised that there was no money to pay these claims. It could not document any deductions from contractors to generate any more monies and had to file a claim with the Court of Claims.

Frank Bernstein, the supervisor of construction management with the Capital Development Board (CDB hereinafter), was called as an adverse witness by Claimant. He had been in charge of the project for the agriculture building, and he is a registered architect. The project was the construction of a building of structural steel and masonry to house offices and laboratories with 150,000 square feet. The projects also included installation of high-tech solar heating and cooling.

The building was to be built at one site but had to be relocated due to subsurface mining problems. The building was built on the southwest portion of the Illinois State fairgrounds. The Claimant was the A/E, and Ralph Hahn & Associates were the consulting engineers on the project. The general contractor was C. Iber & Sons. Claimant’s exhibit No. 3 is the base contract between Claimant and Respondent. It included $76,858.00 for on-site observation. A modification of Number 4 was made which added $81,000.40, $10,129.50 of which was for an observer. The original contract had a full-time observer for $56,056.00. A second part-time observer was budgeted at $20,258.00. These positions were for 22 months. Mod 4 added a second observer for one day per week. With all modifications there was budgeted a total of a first observer for 32 months, five days a week, and a second observer three days a week for 22 months. A total of $112,716.15 was budgeted for on-site observation to March 31, 1983. The total amount budgeted was spent.

Section 3-3.2 of the contract allows for additional compensation beyond the contract completion date. The A/E absorbs the first 60 days beyond the completion time and the CDB is obligated to pay additional amounts if the delay is not the fault of the architect or engineer.

This project was started in August of 1978, was scheduled to be completed 22 months later in June of 1980, but was finally completed in June of 1983. The Claimant and Ralph Hahn & Associates presented exhibits Nos. 9, 10 and 11 to request additional compensation. These exhibits included the request and background information.

The A/E and CDB set the anticipated construction time. The completion time on this project was extended when the solar application was put into the contract. The A/E had input into this extension.

The contract was between the State of Illinois and Loewenberg & Loewenberg. The State had no contract with Ralph Hahn & Associates. Ralph Hahn & Associates were hired by Loewenberg & Loewenberg, the Claimant herein. C. Iber & Sons, the general contractor, did a very poor job of contractor coordination. The first observer was to be there every day. The second observer was there as necessary for specific problems. Mr. Bernstein was later recalled as an adverse witness and testified in summary as follows:

An engineer bills the architect and the architect bills the CDB in the normal course of events. The claims in this case were made by Loewenberg to the CDB on June 28,1983. The CDB requested additional documentation and supplementary information was given to CDB. On the claims for which Loewenberg was making a request for payment, the work actually was done by its subcontractor, the consulting engineer, Ralph Hahn & Associates. AGFX 17, 19 and 22 were paid by CDB to Loewenberg through deductions from contractors. There was money available to pay the other claims. (RP 242.) This would have been through a methodology of proving a claim to deduct money from contractors causing the delays. (RP 243.) This is through the “standard documents for construction” which is referred to in the contract. However, in paragraph 3.8, the contract states that payments withheld from contractors shall not affect the A/E’s right of payment. Other than monies from deductions from contractors there was no money available in the budget to pay the claims of Loewenberg. (RP 245.) The architect is charged with the duty to administer the standard documents of construction. The CDB may withhold payments in whole or in part if it reasonably determines that the contractor’s work is not in accordance to the contract or plans. (RP 248.) These claims were paid to the A/E (17, 19, 22) because the A/E documented to CDB that the specific contractor was at fault by clear evidence.

Mr. Bernstein testified that all those claims still existing in AGFX 1-23 were not paid because it was part of the responsibility of the A/E to administer these types of items under the basic contract. The A/E did not substantiate the claims. They submitted man hours without specific allocations as to time of incident and what it was for.

The CDB did not make further deductions from contractors because the documentation was not qualitative enough, (RP 261.)

Ralph Hahn testified in summation as follows:

He is president of Ralph Hahn & Associates and they are consulting engineers. They were the mechanical, electrical and civil engineers for this project. They were hired by Loewenberg & Loewenberg. They billed Loewenberg & Loewenberg for the work they did. They were paid out of Loewenberg’s fee. He was not sure how on-site observation was paid. Mr. Hahn identified Claimant’s exhibits Nos. 9, 10 and 11, which he stated were “the request for compensation by Loewenberg which has their own particular request for itemized compensation and which really was also a transmittal of our request for compensation.” They documented their requests to Loewenberg and to the CDB as to the extra work. The extra work was for items during the construction period. There are no claims for the design period. The extra work was either requested by CDB or the Department of Agriculture. None of the claims for extra work was for contract administration.

Mr. Hahn testified as to each of the items of claimed extra work in summary as follows:

AGFX-1. The deduct meter. This measured the water to lower sewage costs. This was not included in on-site observation and is not in his estimation a part of contract administration normally performed by an A/E. This was not in the original plan. He claims $495.79 for this work, which is based upon the hours worked for personnel plus 150%. This is basic payroll plus benefits plus the extra percentage. Loewenberg added 25% to each item of extra work, but that 25% has been eliminated from the claims.

On cross-examination, Mr. Hahn testified that they had to redesign the piping and prepare drawings. A change order was required and it was a minor change. Section 4.2.G.3 has the A/E absorb minor modifications and this deduct meter, standing alone, is a minor modification.

Frank Bernstein, the State architect and witness, testified that as to AGFX-1, the CDB refused to pay this claim as it is a part of the basic services and within the normal purview of the A/E contract in paragraph 4.2.G.3. That provision states the A/E shall prepare minor modifications and applications for change orders. This claim was made in 1983 after the project was completed.

AGFX-2. Mr. Hahn testified his people felt that Dynamic Heating & Piping were not doing the welding properly. They were not using heavy enough machines or rods for the job. CDB requested they locate a testing lab to X-ray the welds. He is seeking reimbursement for research to find the proper lab, to negotiate the work, and to observe this work. The problem was that the contractor did not do the work according to specifications. The amount claimed by Ralph Hahn for this extra work is $519.45. On cross-examination Mr. Hahn testified that it is the duty of the A/E to protect the CDB against defects in construction. Part of the basic duties of the observer is to find defects. However, he felt the X-ray sort of thing was a little bit above and beyond what is normally expected. In and of itself, it was part of the A/E’s normal activities.

Frank Bernstein testified that CDB refused this claim because it was part of the normal responsibilities of the A/E in assuring the State that installed items were according to plans and specifications. This claim was made in 1983 after the project was completed.

AGFX-3. Review of Dynamic change order. Dynamic was a subcontractor doing heating and piping work. -Mr. Hahn testified the change order was 516 pages long and was prepared for legal purposes. This was not a normal change order. They ordinarily review change orders as part of basic contract administration, but this one was entirely different in that it was 516 pages long. In 24 years he had never reviewed a document of this volume or detail. He felt it was not included in the contract. The claim was based on a problem with C. Iber & Sons and not the A/E. They were not at fault. Hahn seeks $4,239.45 for this extra work as it took 90 hours of time.

On cross-examination he testified that normally reviewing change orders is part of the A/E’s normal function. The problem was the size of this one. Exhibit No. 3, the contract in paragraph 4.2.6.5 requires the A/E to make recommendations on claims. This was a claim by Dynamic.

Frank Bernstein testified this claim was denied as the A/E under the contract is responsible for reviewing any documentation with regard to claims and disputes. The contract does not say how many pages or how voluminous the claim or dispute may be.

AGFX-4. Revise mechanical systems to accommodate natural gas. Mr. Hahn testified that when the building was originally designed, natural gas was unavailable. Later natural gas restrictions were removed and they were directed to revise the design per change order so a combination of gas and oil could be used. They also reviewed contractors’ proposals and shop drawings, observed the contractors’ work, and engaged in conferences. This was not part of the original design. This was a redesign costing $29,345.00, so it was a significant change order. Hahn claims 44/2 hours extra work for a total of $1,392.79.

On cross-examination Mr. Hahn testified that this was a 1% change in design.

Frank Bernstein testified CDB refused this claim pursuant to paragraph 4.2.G.3 of the contract as it was the preparation of a minor change order.

AGFX-5. Revision to fixed partitions. Mr. Hahn testified that the user agency, the Department of Agriculture, wanted a revision in the plans to convert a space into a conference room and storage rooms in a different configuration. They prepared the documents for the changes required for this design change. This would normally be extra work. They worked 99M hours on this and claim $2,829.86.

On cross-examination he stated the $2,829.86 is only for the engineers’ redesigned portion. There is nothing in there for the architect.

Frank Bernstein testified that this claim was also refused as a minor change order under section 4.2.6.3 of the contract.

AGFX-6. Cooling tower pumping. Dynamic Plumbing submitted drawings for approval for cooling towers and water piping that were different from what was shown on the specifications. Dynamic assured Hahn that the system would work and if it did not, they would make it work. Hahn approved the new system but it did not work. Then Dynamic was off the job so Hahn was asked to solve the problem, which they did. A separate contractor did the work. He feels Dynamic was at fault. He claims $6,210.50 for this extra work which consisted of 156/2 hours. He claims this extra work to be from a contractor error and not part of contract administration.

On cross-examination he testified that the A/E made the judgment that the new plan by Dynamic would work. He denied however, that it was A/E error. He claims it was the contractor’s fault. The system was put in by Dynamic before the A/E received the changed plans, but the A/E accepted it on the assurances from the contractor that it would work. He also admitted that in general it was the job of the A/E to see that things like this did not happen.

Frank Bernstein testified this claim was refused by the CDB pursuant to paragraphs 4.2.6.4 and 4.2.6.S of the contract. This was a review of shop drawings as well as a review with regard to claims and disputes. It was also covered under the architect’s responsibility under periodic observations on the site for assuring the system was installed correctly.

AGFX-7. Hot water in chilled water piping. During construction a problem developed in chilled water headers in the mechanical room and they spent time trying to find a solution to the problem. He feels this was contractor start-up work which should have been done by the contractor. He does not know if CDB requested Hahn or Loewenberg to do this work, but it had to be done. He claims 44 hours on this work for $2,303.00.

On cross-examination Mr. Hahn testified that this was fine tuning of the system. Under paragraph 4.2.G.8, the A/E has an obligation to provide qualified personnel to observe the function and testing of the electrical and mechanical work.

Frank Bernstein testified that this claim was refused because the work was within the normal purview of the A/E’s responsibilities. The A/E was to guard against defects and observe and test the work pursuant to paragraphs 4.2.0.7 and 4.2.0.8 of the contract.

AGFX-9. Design handicap ramps. Mr. Hahn testified that CDB adopted new regulations for handicap access. They had to go back and design ramps for the handicapped per change order. This involved 9% hours and he claims $504.86.

On cross-examination he testified that all they were claiming was for time spent by his employee in designing the ramp.

Frank Bernstein testified this claim was turned down because he had laid out the design and the A/E was only requested to provide the backup information to process a change order. He had received sketches only after the work was completed. They provided backup information to process a formal change order.

AGFX-10. Germination and cold storage rooms. Mr. Hahn testified that two years after construction should have been completed, the user agency made some changes which required divisions and additions to construction documents for electrical and plumbing services which they did. There were also low voltage problems due to problems in the initial design. He is requesting $1,353.99 for this additional work which is based on 29% hours.

On cross-examination he testified that two years after the building was to be completed, the user wanted to add prefab rooms. They required a change order. In and of itself it was a minor modification.

Frank Bernstein testified that this was not a valid claim because it was a minor change under the change order provisions of the contract. It was part of the basic obligations of the A/E.

AGFX-11. Extra contractor coordination effort throughout duration of work. Mr. Hahn testified that the general contractor did not adequately fulfill his coordination responsibilities. This was the principal reason that the project took an extra three years to build. Hahn was directed by CDB and Loewenberg to assume much of the coordinating effort. Claimant’s exhibit No. 10, entitled “Contractor Coordination,” indicates a meeting which all interested parties attended. Mr. Hahn feels this meeting led to his understanding he was to assist in the coordination effort. Under the original contract, the A/E was not responsible for contract coordination pursuant to paragraph 4.2.6.11 of exhibit No. 3 of the contract. Exhibits Nos. 10, 11 and 12 document the extra time to substantiate this claim.

The lack of leadership by the general contractor caused Hahn extra work; particularly mechanical and electrical work. Most of this was coordinating work with various contractors. Exhibit No. 10 documents the many problems Hahn had, which includes filed reports. The project was delayed for several reasons. One of these was the lack of coordination where people could not work. The total hours for extra contractor coordination come to 424/i hours for a total claim of $13,730.22. All of these hours are for work in the initial 22-month period.

Frank Bernstein testified that the contractors of record were not cooperating or coordinating work with one another. One cause was the poor coordinating job done by the general contractor. Also the work was of a unique nature and hard to explain to the contractors. Because the plans were so unique it was necessary for the A/E to show the contractors, through many meetings, what to do. This is part of the A/E’s responsibility regardless of the level of technicality involved. (RP 385.) It was the A/E’s basic job to see that the building was constructed according to the plans.

AGFX-12. Storm sewer rock design. Mr. Hahn testified this was for a few hours’ work for revision of some documents for the storm sewer. This was for 8M hours and the claim was for $363.81.

On cross-examination Mr. Hahn waived this claim and no further consideration is given thereto.

AGFX-14. Chiller failure. Mr. Hahn testified the chillers ruptured. Persons unknown turned the chiller pumps on and left them running. Hahn investigated the matter to fix responsibility. It was to him an on-site observation rather than extra work. His claim is for $703.02.

Frank Bernstein testified that this claim was refused by CDB as it was a minor change order and because the State wound up paying twice for a portion of the chiller which should not have been done. The A/E should have protected the State under the contract from the defect.

AGFX-15. West parking lot. The lot was not built properly so it would drain. Mr. Hahn had to go back and recalculate the elevation and observe the removal and replacement of the parking surface. He claims $600.49 for this.

On cross-examination Mr. Hahn admitted that in relation to this parking lot, the A/E is responsible and supposed to be sure of the intent of the plans. The parking lot was done wrong and they did work with the contractor to make it right.

Frank Bernstein testified this claim was refused because the A/E should have protected the State from this defect. The State was paying for two observers and the A/E should be able to give the State a product which is correct the first time.

AGFX-16. Perchloric hood exhaust ducts. The ducts were not as specified. He claims $885.54.

On cross-examination Mr. Hahn waived this claim.

AGFX-18. Dynamic back charge. Mr. Hahn testified that certain work had to be done by other contractors since Dynamic Heating & Plumbing Company was off the job. Hahn had to investigate which items should be back-charged to Dynamic. His claim totals $397.01.

On cross-examination Mr. Hahn admitted that by itself this item was within the purview of his responsibilities under the contract in the claims and disputes section.

Frank Bernstein testified that this claim was refused because this work was part of the basic conditions of the contract for the A/E to perform under paragraph 4.2.6.7 of the contract. The A/E had two observers to catch these problems.

AGFX-20. Replacement of air separators. The air separators were incorrectly installed. They investigated and devised a method to make the system work. He claims $464.80.

On cross-examination Mr. Hahn waived this claim also.

AGFX-21. Premature punch lists. Hahn prepared punch lists so Dynamic could get off the job and be paid off. They had to prepare a punch list in November of 1980 and then again in November and May of 1982. He felt the punch list was not necessary in 1980 and was done for the convenience of the owner and therefore he is claiming an extra on-site item. Normally a punch list is part of regular on-site services but he feels this was out of scope. He claims $1,282.14 for this.

Frank Bernstein testified that this claim was refused because it is part of the A/E’s basic job to prepare punch lists and there is no statement that there will be only one punch list and there is never only one.

AGFX-23. Handicap ramp construction. This is for the construction of the handicap ramp referred to in the design claim in AGFX-9. He claims $192.61.

On cross-examination Mr. Hahn waived the claim.

On-Site Observation Items. These are claims for work in the field rather than office work such as preparing plans.

AGFX-24. First observer, full-time, 15 months at $131.94 per day and second observer, 2 days per week, 15 months at $131.94 per day.

Mr. Hahn testified that he submitted these claims originally on an hourly basis with the date, the person’s name, and the number of hours. Loewenberg submitted the claim as so many days per week for a certain length of time. At the hearing these items were voluntarily reduced to a total of $35,491.86 for the first observer and $15,728.87 for the second observer.

Frank Bernstein testified that CDB determined not to pay these claims because of the delays in the project. The only people who could resolve problems on the project were those who designed the project. Another problem was the lack of qualitative documentation for these requests for more money. The State needed to know who was there, what happened, why it happened, and who caused it to happen. The State does not dispute that the work was done and an additional observer could have been paid out of appropriated dollars if the backup information had come in in a timely and qualitative fashion so that the State could have gone after the contractors that caused the problems.

All of the funds for this project were expended and disbursed by June 15, 1983. The contractors were paid and the money used up because the State had not formally received documentation as to fault so that monies could be withheld from specific contractors. He had three meetings with Ralph Hahn requesting adequate documentation. It is an obligation under the basic contract to provide the documentation. (RP 399.) It is the position of the CDB that Claimant’s exhibits Nos. 9,10 and 11 are not adequate documentation under the contract. AGFX-24 was denied because the documentation was not relative to a specific contractor problem or error. All of the observation items on AGFX24 were denied for the same reason. The State was not the cause of additional time overruns and it was the A/E’s job to document the fault to specific contractors which they did not do.

Mr. Hahn testified further that any delays by the A/E were minor and within the 60-day period covered by the contract. Strikes caused delay. Change orders, lack of a roof on time, and solar equipment were all causes of delay. However, the major delay was due to lack of coordination of the work.

Mr. Hahn testified on cross-examination that Loewenberg & Loewenberg contracted with the State of Illinois. Hahn contracted with Loewenberg to be a consultant. They contracted to be paid a lump sum by Loewenberg and they have been paid. As an offer of proof, Hahn testified that he had not been paid for these extra items which he has billed to Loewenberg for the money or filed a lien. He was a subcontractor on this project.

He further testified that the A/E approves or disapproves compliance with the intent of the plans and specifications. If there is a design error it is the fault of the architect or engineer and any delays would be their responsibility.

Mr. Hahn further testified they made these claims to the CDB but were advised that there was no money. (RP 217.) CDB advised the A/E to document whose fault these problems were and they could delete that amount from the individual contractors involved and they would be paid from the budget for the contractors. (RP 217.) They were not able to document the claims to CDB’s satisfaction and therefore not paid. (RP 217-218.) Exhibits Nos. 9, 10 and 11 were prepared as it was apparent CDB did not have money to pay the A/E.

All the work they did was as agent for Loewenberg & Loewenberg and all claims made are on behalf of Loewenberg & Loewenberg.

Robert Lambert testified for Claimant that he is a vice president of Loewenberg & Fitch. He is a registered architect. He was the project manager for Loewenberg on the agriculture building project. Everything Ralph Hahn & Associates did on the project was under the authorization and direction of Loewenberg. As to the claims, he stated, “If they are our subcontractors and they submitted it to us, they belong to us in a sort of a way.” (RP 265.)

As to the first observer, they furnished on-site observation to CDB which came to about $150,000.00 and they have only been paid $82,392.00. They are only claiming the on-site observer to December of 1982 even though he worked longer. They are claiming for a first observer for the 20 months after May 1,1981. The figure was computed at 20 days per month on AGFX-24. The daily rate was $131.94 per day. The total claim was $52,776.00 as to the first observer, but reduced at the hearing to $35,491.86.

Loewenberg also seeks payment for a second observer, which they furnished after the scheduled completion date for 22 months. They also claim a second observer for 15 months. The total they claim is $15,728.27 for the second observer as reduced at the hearing.

As to AGFX-25, Loewenberg claims $10,423.26 for an observer to attend project meetings. Exhibit No. 9 itemizes the time of an additional man to attend these extra meetings to expedite the project. Under the contract in paragraph 4.2.6.7, Loewenberg was required to visit the site periodically. Loewenberg claims it was extra work to attend meetings after the scheduled completion date. They claim $10,423.26 for 79 days at $131.94 per day. They billed this at the same rate as on-site observation. They agreed to this rate even though it was low for the work. These were coordination meetings and CDB requested the extra man.

AGFX-28-32. Preparation of change orders. Number 26 was a user change; No. 27 was a review of documents; No. 28 was to prepare a sketch for trees and a minor change; No. 29 was a change order to demolish a gate house; No. 30 was to prepare a change order for new furniture; No. 31 was a change order to add soil mixture to a plant area; and No. 32 was to review change orders of contractors to get money back from some other contractors. They claim a total of $2,512.55. There were no monies available to pay these claims from CDB. (RP 293.)

On cross-examination, as an offer of proof, he testified that if these claims were denied by this Court, Loewenberg would not pay Hahn. (RP 296.)

Hahn billed Loewenberg by the hour of this work claimed as on-site observation, but Loewenberg submitted the claims to CDB differently as total hours. Loewenberg billed per day while Hahn billed per hour.

Under the basic contract Loewenberg was to have a man attend a periodic monthly inspection. Also under the contract, the A/E was the representative of the CDB.

On cross-examination he could not say what AGFX26 was for. It was for a minor few hours on each one of these claims. Normally it would come under the obligations of the A/E in the basic contract. The architect designs to 90S of the project cost. The 10S is for contingencies such as changes and revisions. (RP 332-333.)

AGFX-27 was three hours of minor changes. AGFX28 dealt with minor changes and AGFX-29 was a change order. AGFX-30 also was a minor change as were AGFX-31 and AGFX-32. These were actually part of the basic contract.

The documentation in exhibit No. 9 was not prepared or presented to CDB prior to June 28, 1983, but the substance thereof had been verbally given to CDB prior to that date. All exhibits of Claimant were admitted into evidence except exhibit No. 15 which is a part of the record.

As to AGFX-25, Frank Bernstein testified for the State that this claim was denied because this work was part of the basic contract agreement. (RP 401-402.) The A/E is required at a minimum to attend one meeting per month. Because of the complexity of the project there were more meetings. One meeting is a minimum not a maximum. This was understood and the A/E should have known he would have to come from Chicago to the meetings in Springfield.

As to AGFX-26, this was denied because it was covered under the change order provisions of the contract. AGFX-27 was refused because it was a minor change and should have been overviewed by the A/E during the construction process. AGFX-28,29,30,31 and 32 were viewed as minor changes under the contract and refused. The project was $12 million and these changes were $2,000.00 and therefore minor in nature. The architect was paid an amount approaching $1 million on this project, so $2,000.00 is minor.

In addition, there is slack built into the contract, as a 10% contingency is built in. The A/E gets the money up front on his fee before the A/E does the work. It is paid in the process as the work is done, but the fee is calculated on the basis of 100% of the construction cost, which includes 10% over the basic design. The 10% is for change orders, minor modifications, and so forth.

On cross-examination, Frank Bernstein testified that the A/E fee is a percentage and in this case 5.799% of the net available construction dollars. He agreed that paragraph 3.8 of the contract states, “Payments withheld from contractors shall not effect the A/E’s right to payment.”

He testified the A/E made an attempt to reasonably guard against defects. The A/E recommended further deductions from the contractor but CDB did not follow that recommendation. The CDB told the A/E that if they could document time expended for extraordinary professional time expenditures, a fund could be created to pay them. The A/E was to document contractor fault so deductions could be made and then document their extraordinary time if the A/E was to be compensated. The A/E was not able to substantiate the time it claimed it expended. (RP 441.) They gave CDB logs of time and dates with no substantiation as to what they did under the contract during that time. The CDB required the A/E to link up his team to a specific contractor default if the A/E was to be paid for that additional time the A/E claimed it spent. Some of the A/E’s claims would have been paid if they had provided the requested information to substantiate them. There was a contingency fund, but it was spent. (RP 455.)

Mr. Bernstein admitted that the A/E is entitled to some additional on-site observation time and it is just a question of how much. (RP 457.) He cannot tell how much because the documentation is insufficient. He could not rebut the claim for actual on-site observation time expended as to pure time expended. (RP 458.) The contractors, users, weather and strikes caused most of the delay in the project. Any delays caused by the A/E were minor.

The problem is that the A/E failed to produce and still fails to produce substantive documentation on where the extra time was expended due to extraordinary conditions. The time should have been documented in daily logs traditionally made in ordinary practice, carried out by every man in the field. (RP 471.)

Mr. Hahn testified in rebuttal that the standard documents for construction do not apply to the A/E and further that the A/E supplied sufficient documentation to the CDB to support the claims made for extra work. Mr. Bernstein had asked for more specific documentation such as, “I was on the job today, and here is exactly what I did today.” (RP 481.) The A/E’s documentation was different since the request for documentation came after the job was completed and they could not go back and reconstruct the exact extra work. However, it was the same type of documentation that the State accepted to pay some of the claims.

The Law

Several of the claims of the Claimant are more easily resolved by rejection thereof based on the contract between the parties.

We deny recovery for the following items for the reasons stated:

1. AGFX-1. This was a minor change within paragraph 4.2.6.S of the contract and within the basic services of the A/E.

2. AGFX-2. This is part of the normal responsibilities of the A/E in assuring the State that the work is proceeding according to the plans.

3. AGFX-3. This is part of the basic contract paragraph 4.2.6.S for the A/E to make recommendations on claims.

4. AGFX-4. This is a minor change order and part of the A/E’s basic duties under paragraph 4.2.G.3 of the contract.

5. AGFX-5. This is also a minor change order under paragraph 4.2.6.S of the contract.

6. AGFX-6. The A/E concurred in approving this change of plans. This is A/E error and attributable to the A/E. This claim is also denied pursuant to paragraphs 42.6.4 and 42.6.5.

7. AGFX-7. This claim is denied under paragraphs 4.2.G.7 and 4.2.6.S of the contract. It is part of the A/E’s normal responsibilities.

8. AGFX-9. This was a minor change order and is denied for that reason.

9. AGFX-10. This was a minor change order and is denied for that reason.

10. AGFX-12. Claim waived at trial.

11. AGFX-14. This was a minor change order and the A/E should have protected the State from this defect.

12. AGFX-15. The A/E should have protected the State from this defect.

13. AGFX-16. Claim waived at trial.

14. AGFX-18. This was part of the basic contract work under paragraph 4.2.G.7.

15. AGFX-20. Claim waived at trial.

16. AGFX-21. It is part of the A/E’s basic duties to prepare punch lists.

17. AGFX-23. Claim waived at trial.

18. AGFX-25. This was part of the basic duties and there is no provision in the contract for extra pay for this.

19. AGFX-26. This was a minor change order and within the contract.

20. AGFX-27. This was a minor change order and within the contract.

21. AGFX-28. This was a minor change order and within the contract.

22. AGFX-29. This was a minor change order and within the contract.

23. AGFX-30. This was a minor change order and within the contract.

24. AGFX-31. This was a minor change order and within the contract.

25. AGFX-32. This was a minor change order and within the contract.

The Claimant has not proven by a preponderance of the evidence that these items of work are beyond the basic requirements of the A/E to perform. All of the above-stated items were part of the A/E’s basic contractual obligations and therefore not extra work.

The only remaining claims are AGFX-11 and AGFX-24. On AGFX-11 Claimant seeks $13,730.22 for 424.5 hours of extra contractor coordination work. As previously stated, Mr. Hahn testified that the general contractor did not adequately fulfill his coordination responsibilities under the contract and that this was the principal reason for the delays. The lack of leadership was said to have caused him extra work which he was directed by Loewenberg and the CDB to perform. Frank Bernstein acknowledged that the contractors were not cooperating or coordinating work with one another and one of the causes of this situation was a poor coordinating job done by the general contractor. However, his position was that because the plans were so unique it was necessary for the A/E to spend extra time with the contractors, that this is part of the A/E’s responsibility regardless of the level of complexity involved, and that it was the A/E’s basic job to see that the building was constructed according to plans. After reviewing the record we are inclined to find in favor of the Claimant at least in part on this item.

There appears to have been a real problem with coordination, and the A/E was instructed to and did perform extra effort. How much of this time was part of his basic responsibility of seeing that the building was constructed according to the plans and how much was over and above that amount of time is not entirely free from doubt. We affix the Claimant’s damages at $10,000.00 on this item.

On AGFX-24 the Claimant seeks for the first observer $35,491.86. This is based on 269 billable days at $131.94 per day. For the second observer it claims $15,728.27. '

The agreement of the parties clearly provides for extended on-site observation under section 3.3.2 and payment of these amounts is not affected by any payments withheld from contractors under section 3.8, except for the fact that this was the only money available to pay them. Also under section 9.3 of the agreement, the parties imply there may be some dispute on payment for this on-site work and the contract provides for the Court of Claims to decide the issue. The contract specifically allows for additional on-site observation. The A/E was to absorb only the first 60 days of delay. The first observer was paid for an additional 10 months but there was no money available to pay beyond that period and there was no money to pay the second observer. The delays, were not the fault of the A/E. Mr. Bernstein testified the A/E is entitled to compensation for this. He just could not say how much. The State could not rebut that the first and second observers had expended the amount of time claimed. (Evans Associates v. State (1981), 35 Ill. Ct. Cl. 140.) The dispute in 1983 was to what the observers spent their time doing. The documentation plus the testimony in the trial proves the on-site observation was done. We find that the Claimant suffered damages for claim AGFX-24 in the sum of $51,220.13.

The question of entering an award remains. The Respondent did not plead affirmative matters. The Respondent’s arguments that these claims are really those of Ralph Hahn, a subcontractor, were withdrawn in Respondent’s brief on page 1 and are considered further. Respondent does argue that because all funds in the appropriation were totally expended on June 15, 1983, there was no lapse of appropriated money from which an award to this Claimant can be made. (Ude, Inc. v. State (1982), 35 Ill. Ct. Cl. 384; Brokaw Hospital v. State (1982), 35 Ill. Ct. Cl. 231.) They argue that where insufficient money lapses from which a claim can be paid, no award may be made in excess of the amount of money lapsed. (Blankenship v. State (1975), 31 Ill. Ct. Cl. 116.) Respondent argues that lack of any funds to pay is not an affirmative defense. It in fact is a constitutional prohibition under article 8, section 2B of the Illinois Constitution of 1970. In any event, the record is clear that Claimant was advised many times that there was no money to pay the claim. Insufficient funds is not really an affirmative defense. It is a condition precedent to this Court’s making an award. This Court could make a finding of liability but not enter an award. (Van Nattan v. State (1981), 34 Ill. Ct. Cl. 260.) This Claimant has cited Schutte v. State, 22 Ill. Ct. Cl. 591, and Hall v. State (1979), 35 Ill. Ct. Cl. 1. Claimant argues that the State has failed to show that transfers from line items could not have been made to pay this claim, or other unobligated funds were not available, but we can take judicial notice that transferability is not possible here. The evidence before the Court is that the funds were totally expended and there is no evidence before the Court that any other funds lapsed which could have been used. The additional on-site observation has been proven by a preponderance of the evidence in the total sum of $51,220.13. However, to enter an award would in effect be a deficiency appropriation in violation of article 8, section 2B of the Illinois Constitution. The evidence before the Court is that all available funds for this project were totally expended. This case does not fall into the one exception whereby a contract exceeding an appropriation may be valid where it is expressly mandated by law. (Blankenship v. State, supra.) See also section 30 of the State Finance Act, Ill. Rev. Stat., ch. 127, par. 166.

It is a fundamental principle of the Court of Claims that where agencies incur obligation in excess of amounts appropriated to them, that such claims must be denied. Only an act of the legislature can provide for Claimant’s damages. For purposes of possible legislative action, we find Claimant’s damages to be $61,220.13; however, we are constrained by law to, and hereby do, deny this claim.


source: Caselaw Access Project

author: Raucci, J.

license: Public Domain

text:
    (No. 84-CC-0582
    Cornelius Lewis, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 20, 1985.

    Cornelius Lewis, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

Claimant, an inmate of an Illinois penal institution, has brought this action to recover the value of certain items of personal property of which he was allegedly possessed while incarcerated. Claimant contends that the property in question was lost while in the actual physical possession of the State of Illinois, and that the State of Illinois is hable as a bailee for the return of that property.

This Court has held in Doubling v. State, 32 Ill. Ct. Cl. 1, that the State has a duty to exercise reasonable care to safeguard and return an inmate’s property when it takes actual physical possession of such property, as during the course of the transfer of an inmate between penal institutions, or when the institution receipts for property.

While bailment is ordinarily a voluntary contractual transaction between bailor and bailee, various types of constructive and voluntary bailments have been recognized: “A constructive bailment can be created between an owner of the property and one in possession thereof.” Chesterfield Sewer and Water, Inc. v. Citizens Insurance Company of New Jersey, 57 Ill. App. 2d 90, 207 N.E.2d 84.) In Chesterfield, the Court quotes from Woodson v. Hare, 244 Ala. 301, 13 So. 2d 172, 174, as follows:

“An actual contract or one implied in fact is not always necessary to create a bailment. Where, otherwise than by mutual contract or bailment, one person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he ought, upon principles of justice, to keep it safely and restore it or deliver it to the owner, such person and the owner of the property are, by operation of law, generally treated as bailee and bailor under a contract of bailment, irrespective of whether or not there has been any mutual assent, express or implied, to such relationship."

The loss or damage to bailed property while in the possession of the bailee raises a presumption of negligence which the bailee must rebut by evidence of due care. The effect of this rule is not to shift the ultimate burden of proof from the bailor to the bailee, but simply to shift the burden of proceeding or going forward with the evidence. Bell v. State, 32 Ill. Ct. Cl. 664; Bargas v. State, 32 Ill. Ct. Cl. 99; Romero v. State, 32 Ill. Ct. Cl. 631; Moore v. State, 34 Ill. Ct. Cl. 114.

This case comes on for hearing on the joint stipulation of Claimant and Respondent without the benefit of a hearing.

From the stipulated facts, it appears clear that this case falls within the realm of personal property cases where a recovery should be allowed.

On March 24, 1983, Claimant’s personal property was inventoried and packed in seven boxes, which were sealed with tape. The sealed boxes were admittedly placed in a locked personal property storage room at Menard Correctional Center in the control of Respondent.

When Claimant resumed possession of this property on April 2, 1983, certain of his property was missing, of a stipulated value of $219.19.

There is no proof in the record or facts in the stipulation whereby it may be determined that Respondent was without fault in the loss of Claimant’s personal property.

It is therefore ordered that Claimant be awarded $219.19 in full and complete satisfaction of this claim.


author: Montana, C.J.

text:
    (No. 84-CC-0684
    Grace A. Samuelson, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 28, 1986.

    Ensel, Jones, Blanchard & LaBarre (Robert T. Hall, of counsel), for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

The Claimant filed her complaint in the Court of Claims on September 26, 1983. She alleges she was injured and that on October 15,1982, the State of Illinois was negligent in that the State: (a) failed to properly construct the sidewalk surrounding Lincoln s Tomb; (b) failed to properly maintain and repair the sidewalk surrounding Lincoln’s Tomb; (c) failed to warn visitors of the dangerous condition of said sidewalk; and (d) failed to keep visitors away from said sidewalk when it knew the sidewalk was in a dangerous state of disrepair.

By agreement of the parties, through their attorneys, the case is to be decided solely on the following evidence: the deposition of Grace A. Samuelson, the Claimant, the deposition of David Boyle and eight pictures of the sidewalk in issue. This evidence makes up the sole evidence in the case.

Claimant has filed a brief, as has Respondent. No reply brief was filed. By letter of March 29, 1985, Claimant, through her attorney, waived any claim to damages as to a stroke allegedly suffered by Claimant.

The Facts

The Claimant testified that she was born on January 18, 1918. On October 15, 1982, she was in Springfield, Illinois, and on the spur of the moment she and her husband went to visit Lincoln’s Tomb. They were just passing through on their way to Wisconsin. The visit was in the early afternoon and it was a warm, sunny day. The lighting conditions were good. In order not to get caught up in a tour group, they went around the tomb rather fast or very fast. They were in the tomb and going to the other tomb when the accident happened. They came out of the one tomb and started around the corner. She looked ahead to see the building. She was talking to her husband and telling him about Mary Lincoln. She noted a big crack down the side of the building. She then caught her toe in a crack and lunged forward. She yelled for help but her husband was not able to catch her and she fell to the ground. Her face was bleeding and she had to have four stitches in her eyebrow. She was taken to the emergency room. She broke her ribs on a camera she was carrying. She further testified that she did not see the crack where she fell. She also testified that it was not a crack but an elevation. She did not know how deep it was. She caught the toe of her shoe in the broken granite, not concrete or asphalt. The area where she fell was clear and there were no leaves or anything on it. She was wearing a low heeled walking shoe with composite soles. She believes the area of pavement where she fell was as old as the tomb. She was looking at her husband while she was talking at the time she fell.

The camera she was carrying had been given to Claimant and was worth $200.00. The camera had not been repaired. Her damages included broken glasses, a cut on her head, a bump on her nose, a broken nose or deviated septum, a shoulder injury, an injury to her hands like a sprain, broken ribs and a skinned knee. The lenses for her glasses cost $70.00.

The Claimant had Medicare and it paid for most of her medical bills. Her nose still bothered her but everything else seemed to be cured. When she visited her daughter, she sat alone in a room because she looked so bad.

David Boyle testified that he was a maintenance worker for the State of Illinois, Department of Conservation, and had been for over 15 years. In 1982, he worked at Lincoln’s Tomb and had done so for over 15 years. He was the only maintenance worker at Lincoln’s Tomb. His immediate supervisor is Carole Andrews. He seldom recommends anything and usually just does what he is told to do. He does advise his supervisor when he needs some supplies and has in the past pointed out some necessary repairs.

He did not actually see the Claimant fall. He was probably eating lunch. He was told that Claimant fell on the northwest corner of the tomb. He knows the spot and guesses she just tripped. He patched the sidewalk. He does not know how she tripped or if she was hurt. He saw no blood or other evidence of someone being hurt on that sidewalk. After the accident, he took some grout mix and filled it in where the sidewalk was. He had to pick up the grout mix because none was stored. It took him about an hour to fix using the sand mix.

He did not remember the unevenness between the slabs prior to October 15,1982, as a hazard. His attention had not been drawn to it until after the accident. He believes the unevenness was higher towards the tomb. There was not much space between the unevenness of the slabs and there may have been an expansion joint at that point. They had had some problems on the sidewalk of blacktop falling through and they had patched it. Other than this incident, though, this sidewalk had never had to be fixed.

When the pictures were taken he had to chop out the patch so they could take pictures and then repatch it. Prior to patching the sidewalk, he did not put up a barricade. He never received or heard of any complaints about this particular sidewalk or any cracks in it prior to this accident. He did not consider the crack where Claimant fell as dangerous, but it was possible for someone to trip there.

The pictures show an unevenness of less than an inch where a shoe could hit on the end. The pictures are of poor quality but there is no evidence that this crack exceeded one inch and does look less than one inch.

The Law

In Wrightman v. State (1978), 32 Ill. Ct. Cl. 546, this Court held that a visitor to Lincoln’s Tomb is an invitee to whom the State owes a duty of reasonable care in maintaining the premises. The State is not an insurer of the safety of persons who visit its parks and recreation areas. To recover, Claimant bears the burden of establishing by a preponderance of the evidence that Respondent breached its duty of reasonable care and that the negligence of Respondent proximately caused her injury. If these two elements are established the comparative negligence of the Claimant must be considered.

To show negligence, the Claimant must show that the State was negligent in its maintenance of the sidewalk in that it had actual or constructive notice of a dangerous condition. Noonen v. State (1983), 36 Ill. Ct. Cl. 200; Nolan v. State (1983), 36 Ill. Ct. Cl. 194.

This present cause is very similar to the Nolan case. Contrary to the arguments of Claimant in her brief, the State had no actual notice of the alleged defect in the sidewalk. Carole Andrews did not testify and the only reference to her was something about a possible grant to make all the sidewalks of the same material. There was no proof as to when the grant was proposed and whether it was before or after the accident to Claimant.

As to constructive notice, Mr. Boyle testified he did not consider the sidewalk a hazard and he had not received or heard of any complaints or other accidents on this sidewalk. This sidewalk had been in existence for many years.

Claimant has failed to show a dangerous condition of which the State had knowledge or should have had knowledge. The elevation is very slight, the area was well lit, the sidewalk was clear and there had been no prior accidents. Sewell v. Board of Trustees of Southern Illinois University (1979), 32 Ill. Ct. Cl. 430.

All cases of this nature are decided on their particular facts. Peters v. State (1984), 36 Ill. Ct. Cl. 255, is thus distinguishable. We find that the approximate one-inch variation where no complaints had ever been made is an example of a variation so slight that it would not be actionable as a matter of law. (Warner v. City of Chicago (1978), 72 Ill. 2d 100.) The lighting was good, the crack was not covered by any leaves or snow and the area was clear. The Claimant was walking very fast to stay ahead of a tour group. Therefore, it cannot be said that she was free from negligence. All of the cases cited by Claimant are cases dealing with cracks where some evidence indicates the crack to be about two inches in depth. It is our opinion that Claimant was the sole negligent party in this accident. Moreover, damages in the Court of Claims must be reduced by the amount paid by insurers unless they are a party to the action. The only evidence before the Court is that most of Claimant’s bills have been paid by Medicare.

While this was a very unfortunate incident and we are not unsympathetic toward the Claimant, based on the evidence we are constrained to, and hereby do, deny this claim.


text:
    (No. 84-CC-1370
    State Employees’ Retirement System, Claimant, v. The State of Illinois, Respondent.

      Order filed September 21, 1984.

      Order on motion for reconsideration filed June 12,1986.

    State Employees’ Retirement System, pro se, for Claimant.

      Neil F. Hartigan, Attorney General (Sue Mueller, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This issue in this case involves the constitutional power of the General Assembly to control the fiscal policy of the State.

In 1982, the General Assembly, in various appropriation bills, provided funding that included the State’s portion for retirement contributions to the various retirement systems, including the State Employees’ Retirement System, for Fiscal Year 1983 (commencing July 1, 1983). The contribution rate set by Claimant for FY 1983 was 5.5% of employee compensation.

In April of 1982, responding to the State’s fiscal crisis, the General Assembly passed Senate Bill 177. That bill amended the various appropriation bills to reduce the previously appropriated monies for retirement contributions to a rate of 4.5%. On April 29, 1983, Governor James R. Thompson exercised his power to item reduce certain items and Senate Bill 177 became effective immediately as Public Act 83-0002.

On April 28, 1983, the Senate adopted Senate Joint Resolution No. 33, sponsored by Senators Philip Rock, president of the Senate, and Howard W. Carroll, chairman of the Senate Appropriations Committee.

Senate Joint Resolution No. 33 declared that:

“. . . Senate Bill 177 was adopted for the purpose of helping to alleviate the state’s current cash problems by reducing appropriations made for the employees’ contributions to various state retirement systems for fiscal year 1983. . .
and that:
. . . it is the intent of the General Assembly to pay to the various pension funds . . . the amount by which payments to those funds were reduced for fiscal year 1983, plus interest at the rate of 6% per year . .

The Resolution then resolved that the amounts reduced would be repaid by 20% of the reduction made for each of the next five fiscal years, commencing with fiscal year 1984, plus 6% interest per year.

Claimant filed this Claim to recover $176,216.39 for payment of retirement contributions for employees of the Department of Law Enforcement.

Because of the aforesaid action of the General Assembly, insufficient funds were appropriated (as a result of Senate Bill 177) to cover this claim.

Article VII, section 2(b) of the 1970 Constitution of the State of Illinois provides:

“The General Assembly by law shall make appropriations for all expenditures of public funds by the State. Appropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year.”

The General Assembly having determined (perhaps belatedly) that funds would not be available during Fiscal Year 1983 to cover this claim, this Court has no alternative but to deny the claim.

It is therefore ordered that this claim be dismissed, with prejudice.

ORDER ON MOTION FOR RECONSIDERATION

Raucci, J.

This cause coming on to be heard on Claimant’s motion for reconsideration, it is hereby ordered:

that the motion for reconsideration is denied.


text:
    (Nos. 84-CC-1439, 84-CC-2749 cons.
    Alva W. Busch, Claimant, v. The State of Illinois, Respondent.

      Opinion filed March 28, 1986.

    Clyde L. Kuehn, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

The above consolidated claims came on for hearing on June 18, 1985. At the close of the hearing, it was stipulated between the Claimant and the Respondent as to the fact that an award should be entered in both claims for stipulated amounts. The Claimant is seeking to recover lost wages in case No. 84-CC-1439. In case No. 84-CC-2749 he is seeking to recover lost standby pay.

The Claimant was employed in 1982 as a crime scene technician by the Illinois Department of Law Enforcement. He was suspended by the Department from February 28 through March 20, 1982, again from April 26 through April 30, 1982, and again from June 21 through July 18, 1982. On July 21, 1982, he was discharged from his employment. After an appeal to the Civil Service Commission of the State of Illinois, the Claimant was reinstated and resumed his employment with the Department on May 15,1983. The Civil Service Commission determined that the three suspensions and the discharge were all wrongful.

As a result of the suspension beginning on February 28,1982, and the suspension beginning on April 26,1982, the Claimant lost the total of $1,809.00. As a result of the suspension beginning on June 21, 1982, and the ultimate discharge on July 21, 1982, through April 14, 1983, the total lost wages suffered by the Claimant were $15,310.47. During the time of his discharge, the Claimant received in unemployment compensation and in earnings from a part-time job a total of $10,234.00, leaving a total net loss of income of $6,885.47 from the three suspensions and the discharge.

In addition to his regular wages, the Claimant was also paid by the Department what is known as standby pay. This was paid to the Claimant for those hours for which he was required to be on standby call when he wasn’t on duty. Based upon calculations made by the Department, the standby pay which would have been paid to the Claimant for the suspension beginning February 28, 1982, was $395.04; for the suspension beginning June 21, 1982, $230.44; and for the discharge beginning July 21,1982, $4,972.80. The total standby pay not paid to the Claimant was $5,598.28.

Based upon the evidence heard at the hearing and the subsequent stipulation by the parties, we find that the Claimant is entitled to $6,885.47 in case No. 84-CC-1439 and an award of $5,598.28 in case No. 84-CC-2749.

Wherefore, it is hereby ordered that the Claimant be, and hereby is, awarded $6,885.47 in full and final satisfaction of his claim in case No. 84-CC-1439. It is further ordered that Claimant be, and hereby is, awarded $5,598.28 in full and final satisfaction of his claim in case No. 84-CC-2749. These awards are subject to withholdings and contributions set forth on Appendix A (attached).

APPENDIX A

Identification of State Contributions and Deductions from Back Salary Award.

To the State Employees’ Retirement System:

Employee’s contribution to State Employees’ Retirement System 1672.70

Employee’s contribution to FICA _.00

State’s contribution to State

Employees’ Retirement System 1156.60

State’s contribution to FICA .00

To Illinois State Treasurer to be remitted to Internal Revenue Service:

Claimant’s Federal Income Tax 2496.75

To Illinois Department:

Claimant’s Illinois Income Tax 312.09

To the Claimant:

Net salary 8002.21

Total Award $13,640.35


author: Holderman, J.

text:
    (No. 84-CC-1501
    Michael Kennard, Claimant, v. The State of Illinois, Respondent.

      Order filed January 8, 1986.

    Michael Kennard, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (G. Michael Taylor, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant was an inmate at the Joliet Correctional Center on November 21, 1983. On that date, Claimant, along with a large group of other inmates, was being escorted to the library at the correctional center when the inmates began to run towards the library. Correction Officer Hallman, who was in charge of the group, was the only guard present at the time and he ran past Claimant in order to try to get ahead of the inmates and stop them from running. As he passed Claimant, he stepped upon a patch of ice and fell into Claimant, knocking Claimant to the ground. Claimant fell on his knee and hand. He received medical attention for both injuries.

Respondent has taken the position that the State is not liable for Claimant’s injuries because the injuries were the result of the actions of a third party and not the State. Respondent contends that Officer Hallman’s actions were made necessary by the actions of inmates who broke away from the group. Consequently, the injuries in question arose from the wrongful actions of a third party and not Respondent.

Claimant asserts this incident would not have occurred if another guard had been present. There is nothing in the record to indicate how the presence of a second guard could have prevented the inmates from breaking away from the group.

It is Respondent’s further contention that Claimant has not suffered any compensable damages and submits the opinion of a radiologist to strengthen that position. The medical progress notes of November 21,1983, 4:30 p.m. state that Claimant was “laughing — talking, sitting on edge of bed — knees hanging down does not appear to be in any distress.” Claimant was furnished all necessary medical care for his alleged injuries.

It appears from the record that Claimant has failed to submit any medical evidence showing he sustained injuries of any consequence. See Headlee v. State (1974), 30 Ill. Ct. Cl. 119; Frega v. State (1956), 22 Ill. Ct. Cl. 399.

It is the Court’s opinion that this incident was caused by the action of the inmates of the institution and was not in any manner, shape or form caused by Respondent.

Award denied. Case dismissed.


text:
    (No. 84-CC-1962
    River Oaks Mobile Home Park, Claimant, v. The State of Illinois, Respondent.

      Opinion filed August 7, 1985.

    Lowell Snore, for Claimant.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

Respondent’s State police car, driven by Trooper A. Martinez, collided with Claimant’s vehicle on November 20, 1982. The police car struck the left rear of Claimant’s vehicle as Claimant’s vehicle was completing a left turn into a gas station on Route 30 near Torrence Avenue in Sauk Village, Cook County, Illinois. Both vehicles had been eastbound on Route 30 at approximately 10:00 p.m. on a “misty” night.

Claimant suffered property damage in the amount of $1,039.33. The disposition of this case is controlled by the Court’s finding on the issue of whether the police car had its siren on and Mars lights on at the time of the accident.

The officer testified he had both his siren and Mars lights on immediately prior to the accident, but turned the siren off about two car lengths away from Claimant’s vehicle. Two employees of Claimant, who were in Claimant’s vehicle at the time of the accident, testified that neither the siren nor Mars lights were on prior to the accident.

An independent witness, John J. Grindl, an employee of the gas station, who had a clear, unobstructed view of the accident, testified that neither the siren nor Mars lights were on at the time of the accident.

Trooper Martinez was going into the gas station for the purpose of investigating a prior accident. At the time the instant claim arose, other police officers were in the gas station. None of them were called as witnesses in this cause.

Based upon the evidence addressed in this cause, the Court finds that the police car did not have either its siren or Mars lights operating at the time of the accident.

The amount of damages claimed is not disputed by Respondent.

Wherefore, the Claimant is awarded $1,039.33 in full satisfaction of this claim.


text:
    (No. 85-CC-0476
    Gilbert Rivera, Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 20, 1985.

    Gilbert Rivera, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (James Tyson, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This is a claim brought by Gilbert Rivera, a resident of Stateville Correctional Center, for the theft of a chain and medallion from his locked room in the honor dormitory on June 25,1983.

Respondent filed a detailed departmental report from which it can be concluded that an officer on duty in the dormitory control center, where keys to the inmates’ rooms were kept, wrongfully permitted three inmates to enter the control center, one of whom took the key to Claimant’s room, entered it and stole the chain and medallion.

One Lt. E. Lyles, who entered the control center and found the inmates there in violation of the prison rules, reported the alleged violation. A disciplinary hearing was held, but the hearing officer dismissed the charges because at the hearing the officer being charged denied that he had let any inmates into the control center. The hearing officer concluded that, with one officer stating that there were inmates in the control center and the other officer denying it, he had no choice but to dismiss the charges.

On the basis of the documents in the departmental report it would be a reasonable finding of fact that staff negligence was the proximate cause of Claimant’s loss.

However, it is impossible to place any dollar value on the items stolen. Claimant testified that the chain and medallion were gold, but he did not know how many karats. He testified that his mother bought them for him as a gift in 1970, but he did not know where she bought them. There is no proof of any kind that their purchase price in 1970 or their market value in 1985 was $1,350.00 for the medal and $150.00 for the chain as alleged in the complaint. There is no basis for coming up with a compromise figure. It cannot be said that they were worth $100 any more than it can be said they were worth $1500.00 as alleged in the complaint. For failure of proof of damages, it is therefore ordered that this claim be denied.


author: Patchett, J.

text:
    (No. 85-CC-0551
    Billy Jones, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 7, 1986.

    Billy Jones, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This is a claim for personal injuries brought by Billy Jones, Claimant, a resident of Stateville Correctional Center.

On August 28, 1984, Claimant was a resident of Joliet Correctional Center. At approximately 9:30 a.m., he was being escorted by an officer down the gallery of his cellhouse to breakfast. When they came to the sergeant’s office at the end of the gallery, they discovered an argument going on in the sergeant’s office between the sergeant and an inmate. The inmate ran out of the office, and the sergeant threw his plastic walkietalkie radio at the inmate. Fortunately, because another officer had already thrown the inmate to the floor, the radio missed the inmate and shattered against the wall. Small particles of the radio flew into the Claimant’s eyes.

From Respondent’s exhibit No. 1, a memorandum prepared by the warden of Joliet Correctional Center, it appears that the Claimant was seen in the emergency room of the health care unit around noon. He was complaining of foreign body sensation in his left eye. A small foreign body was discovered and removed, but there was no evidence of corneal abrasion or any damage to the eye which would lead to decreased visual function.

Claimant continued to complain of foreign body sensation in his left eye. On August 30,1984, at 2:15 a.m., he was again seen in the health care unit by a nurse, and three pieces of black material were removed. Thereafter, the Claimant complained of foreign body sensation in his right eye, but no foreign body was ever discovered in his right eye.

The officer was evidently at fault in hurling his radio at the other inmate. Also, it would seem that it should not have taken until August 30, 1984, two days after the incident, before medical personnel located and removed all of the particles from the Claimant’s eye. However, neither the Claimant’s testimony nor Respondent’s exhibit No. 1 indicate any permanent injuries to Claimant’s eyes.

For the reasons stated above, we deny this claim.


text:
    (No. 85-CC-0595
    Rose Turner, Claimant, v. The State of Illinois, Respondent.

      Opinion filed November 25, 1985.

    Roxy M. Schumann, for Claimant.
    Neil F. Hartigan, Attorney General (William E. Webber, Assistant Attorney General, of counsel), for Respondent.
   Patchett, J.

This cause came on for hearing April 23, 1985, before Richard Parsons, one of the commissioners of this Court. Claimant, Rose Turner, appeared personally and was represented by counsel, Roxy M. Schumann. Respondent, the State of Illinois, Galesburg Mental Health Center, was represented by William Webber, assistant Attorney General. Certain stipulations and evidence were presented, and testimony adduced. Arguments were heard, and the commissioner was fully advised in the premises.

The Court having considered all the evidence and pleadings in this case, and having considered the commissioner’s report, makes the following findings:

I. That the parties entered into the following stipulations:

1. That the findings, decision and order of the Illinois Human Rights Commission entered on June 29, 1984, is undisputed except with regard to damages as hereinafter provided.

2. That the Claimant was terminated by the Respondent on October 10, 1980, and Respondent was ordered to reinstate Claimant immediately. Claimant was reinstated on August 16,1984.

3. That the relevant period for calculating damages is from October 10,1980, up to and including August 15, 1984, and said period is divided into two periods defined as follows: First period — October 10, 1980, up to and including June 30,1983. Second period — July 1,1983, up to and including August 15,1984.

4. With respect to damages, the calculations for back salary and back payment regarding personal days and vacation are as follows:

5. That in September 1984, the Claimant received payment for the second period covering July 1,1983, up to and including August 15, 1984, in the amount of $20,063.09 plus contribution to the State Retirement System.

6. That the amount originally claimed is for the first period which is from October 10, 1980, up to and including June 30,1983, which is $41,682.98.

7. That the only issues before this Court are entitlement and mitigation of damages, and more particularly are as follows:

a) Whether or not Claimant is entitled to payment for personal days and vacation during the relevant period.

b) Whether or not the Claimant mitigated her damages.

II. During the course of the hearing, judicial notice was taken with regard to the population of Galesburg, Illinois, as well as the unemployment problem in Galesburg, Illinois, Knox County, as well as Peoria County.

III. During the course of the hearing, testimony was adduced from two witnesses, Rose M. Turner, Claimant, and David Michael Taylor, from the Department of Public Aid, State of Illinois. A synopsis of their respective testimony is as follows:

Testimony of Rose M. Turner:

Claimant testified that she resides in Galesburg, Illinois (T-10), along with her husband and family where they are purchasing a home (T-23).

Claimant was employed at the Galesburg Mental Health Center in Galesburg, Illinois, until October 10, 1980, when she was terminated (T-10). On August 16, 1984, Claimant returned to work pursuant to an order of reinstatement from the Illinois Human Rights Commission (T-10), complaint exhibit A.

Claimant has been a licensed practical nurse (LPN) in the State of Illinois since 1973 (T-ll). Her license remained active from October 1980, up to and including August 15,1984 (T-ll).

Between the period of October 10,1980, up to and including August 15, 1984, Claimant actively sought employment (T-ll through 24). She sought employment in the medical field as an LPN by placing an ad in the local newspaper (T-ll). She also contacted, applied and made several inquiries for employment at Cottage Hospital and St. Mary’s Hospital, both of which are the only remaining hospitals in Galesburg, Illinois (T-ll through 15). She even contacted, applied and made several inquiries with Homemakers Upjohn Agency, Methodist Hospital and St. Francis Hospital located in Peoria, Illinois (T-15). Although she contacted these medical facilities, sometimes up to two to three times per week, she was never hired.

Claimant sought employment in nonmedical related fields, including receptionist positions (T-18), bank teller positions (T-19), and telephone operator positions (T-19). After a year of job hunting to no avail, Claimant reorganized the NAACP in Galesburg (T-20 through 21 and T-28). She would go around to various businesses in Galesburg, Illinois, and talk to them about employing herself as well as others (T-22). She went to local banks, grocery stores, insurance companies, City Hall and the courthouse, but was never able to obtain employment (T-22 through 23). It is Claimant’s belief that she was not hired because she was fired by the Respondent and she had filed a charge of discrimination against the Respondent (T-24). In addition, Claimant believes that her attempts to find work through the NAACP resulted in her being labeled as a troublemaker (T-24).

During the relevant period, Claimant did not receive any unemployment compensation (T-33). However, Claimant did receive public aid payments on behalf of her son, Corey Edgerson, for the benefit of Jason Edgerson, Corey’s son (T-34 and T-38) when Jason was left at Claimant’s doorstep (T-34). The public aid payments consisted of a grant payment which was given to Corey to purchase diapers, formula and clothing for Jason (T-39), and food stamps which were used to purchase food (T-39). Claimant was advised by someone at the public aid office that she should be the grantee since Corey was still a minor (T-39). Corey Edgerson was 17 years of age at the time (T-38).

Testimony of David Michael Taylor:

Mr. Taylor testified that he is a data processing analyst for the Department of Public Aid for the State of Illinois, and as such is responsible for the recipient legislative system (T-43).

During the period October 10, 1980, up to and including June 30, 1983, Claimant received grant assistance payments in the amount of $3,407.91 (T-45), energy payments in the amount of $200.00 (T-45), food stamps in the amount of $3,238.00 (T-46), and medical payments in the amount of $52.94 (T-46). During the period of July 1, 1983, through August 15, 1984, Claimant received food stamps in the amount of $1,642.00 (T-48).

Pursuant to the Illinois Public Aid Code, parents are responsible for their children, but grandparents are not responsible for their grandchildren. Therefore, the grandparents’ income is not considered. If grandparents choose not to support the grandchild with their own finances, the grandparent could legitimately receive the full public aid assistance grant, food stamps and medical payments (T-52 through 53).

It has generally been the policy of the Illinois Department of Public Aid not to necessarily allow minor grantees, but to have an adult that would be the actual payee (T-54).

IV. Amended Claim

That during the course of the proceedings, the Claimant voluntarily remitted the following amounts:

As and for medical payments $ 52.94
As and for vacation time 2,075.64
As and for personal days 610.98
Total $2,739.56

Claimant made an oral motion to amend her claim in the above entitled cause, reducing the original claim of $41,682.92 by $2,739.56, resulting in her amended claim being in the amount of $38,943.42. Claimant’s oral motion, without objection, was allowed by the commissioner.

V. Findings

After reviewing the complaint filed herein, including exhibit A attached thereto, and considering the stipulations entered into in this case, and considering the evidence and testimony as adduced at the hearing, and the ruling upon the Claimant’s oral motion to amend her claim, we make the following findings:

1. That Claimant was employed by the Respondent as an LPN and was terminated by Respondent on October 10,1980.

2. That Claimant filed a charge of employment discrimination based upon race against the Respondent on October 27, 1980, with the Illinois Department of Human Rights.

3. That the Illinois Department of Human Rights completed its investigation and issued a notice of substantial evidence on October 11, 1981.

4. That a complaint for civil rights violations was filed on behalf of the Claimant by the Illinois Department of Human Rights before the Illinois Human Rights Commission on May 11,1982.

5. That a hearing on the merits was held on October 19 and October 20, 1982, before an administrative law judge who subsequent thereto entered a proposed order on March 19, 1984, ruling in favor of the Claimant and against the Respondent.

6. A final order was entered by the Illinois Human Rights Commission sustaining Claimant’s charge of employment discrimination based upon race, resulting in the Respondent being ordered to return Claimant to work and to pay her back pay and any other benefits lost during the interim.

7. That Claimant returned to work on August 16, 1984.

8. That the relevant period for purposes of calculating damages is between October 10, 1980, up to and including August 15, 1984, which, for purposes of work benefits, has been divided into two periods which are as follows: 10/10/80 through 6/30/83, and 7/1/83 through 8/15/84.

9. In regard to the first period, the damage award in the amount of $41,682.98 lapsed back to the State treasury causing Claimant to file her complaint before the Court of Claims.

10. In regard to the second period, the damage award in the amount of $20,063.09 was paid to Claimant in September 1984.

11. Claimant is a licensed practical nurse (LPN) and has been so licensed since 1973 in the State of Illinois. Claimant’s LPN license was active in 1980 and continually active through August 15,1984.

12. That during the period of October 10, 1980, up to and including August 15, 1984, Claimant sought employment by making several contacts, including filing applications, personal interviews and follow-up inquiries and placed ads in the local newspaper for private nurse duty work in the medical field to the following: Cottage Hospital, Galesburg, Illinois; St. Mary’s Hospital, Galesburg, Illinois; Homemakers Upjohn Agency, Peoria, Illinois; St. Francis Hospital, Peoria, Illinois; and Methodist Hospital, Peoria, Illinois.

13. That Galesburg, Illinois, has only three hospitals as follows: Cottage Hospital, St. Mary’s Hospital, and Galesburg Mental Health Center (Respondent).

14. That Claimant also sought employment in nonmedical fields by answering newspaper ads, filling out applications, personal interviews and follow-up inquiries for the following types of positions: receptionist, bank teller and telephone operator.

15. That Claimant tried to find employment for one year unsuccessfully. That Claimant continued to seek employment in different fields, even other than those she was qualified in or trained in, and that out of frustration she reorganized the NAACP in Galesburg, Illinois, and continued not only to seek a job for herself, but for others. Claimant made several inquiries regarding job openings and actively sought to be employed in the local banks, grocery stores, insurance companies, City Hall and the courthouse.

16. Claimant is married and has resided in Gales-burg, Illinois, for 29 years where she and her husband are purchasing a house.

17. Claimant did not receive any unemployment compensation during the relevant period.

18. That during the relevant period, Claimant’s minor son, Corey Edgerson, age 17, was residing with the Claimant. During said period, Corey’s minor son, Jason Edgerson, was left at Claimant’s residence. Corey Edgerson applied for public aid, but because Corey was a minor himself, the Department of Public Aid advised Corey that the payments would have to go through Claimant. When the public aid payments were received, the money was given to Corey to provide for Jason’s needs.

19. Corey Edgerson through Claimant received food stamps which were used to purchase food for Jason Edgerson.

20. During the first relevant period, Claimant received $3,407.91 as and for grant assistance; $200.00 as and for energy type assistance; $3,238.00 as and for food stamps on behalf of Corey Edgerson for Jason Edgerson, the Claimant’s grandchild.

21. During the first relevant period, Claimant received $52.94 as and for medical payments.

22. During the second relevant period, Claimant received food stamps in the amount of $1,642.00 on behalf of Corey Edgerson for Jason Edgerson, Claimant’s grandchild.

23. Pursuant to the Illinois Public Aid Code for the State of Illinois, parents and grandparents are treated differently. Parents are responsible for their children, grandparents are not responsible for their grandchildren. Therefore, parents may receive public aid assistance depending on the amount of money earned, the number of hours worked and the amount of money actually paid. However, with grandparents, if they choose not to support the grandchild with their own finances, they may legitimately receive the full public aid assistance grant, food stamps and medical payments, without considering the grandparents’ income.

24. That the Claimant has diligently sought employment and has done all in her power to mitigate her damages pursuant to the standard set out in Sullivan v. State (1967), 26 Ill. Ct. Cl. 117.

25. That as a result of the voluntary remittitur and oral motion to amend claim which was granted, the issue of entitlement of payment for personal days and vacation is moot.

Therefore, we make the following ruling:

A. That the findings and final determination of the Illinois Human Rights Commission, case #1981CF0585 be and is hereby adopted pursuant to Liddell v. State (1978), 32 Ill. Ct. Cl. 209.

B. We award the Claimant the amount of $38,943.42 plus contribution to the State Retirement System, and the Claimant be and is hereby awarded that sum.

APPENDIX A

Identification of the State Contributions and Deductions from Back Salary Award

To the State Employees’ Retirement System

Employee’s contribution to State Employees’ Retirement System 1595.36

Employee’s contribution to FICA 2771.93

State’s contribution to State

Employees’ Retirement System 2345.85

State’s contribution to FICA 2771.93

To Illinois State Treasurer to be remitted to Internal Revenue Service:

Claimant’s Federal income tax 7788.69

To Illinois Department:

Claimant’s Illinois income tax 973.59

To the Claimant:

Net salary 25813.85

Total award $44,061.20


text:
    (No. 85-CC-2270
    Eugene Walker, Claimant, v. The State of Illinois, Respondent.

      Order filed March 31, 1986.

    Eugene Walker, pro se, for Claimant.
    Neil F. Hartigan, Attorney General (John Buckley, Assistant Attorney General, of counsel), for Respondent.
   Holderman, J.

Claimant, Eugene Walker, a resident of Stateville Correctional Center, filed a claim for loss of property stolen from his cell in the amount of $58.06. It is the opinion of the commissioner, which the Court thinks is correct, that this case should be distinguished from those cases in which the Court has held that recovery for property can be had only when the State had taken actual physical possession of the property of an inmate.

Claimant was a resident of cell 525, unit B west, State ville Correctional Center on November 15,1984. At that time, Claimant did not have a cellmate, so no one other than an officer was authorized to enter his cell in his absence.

In Claimant’s cell house, each cell has two locks which can be opened only by guards with keys. One lock is a deadlock which is both locked and unlocked by key and the other lock is unlocked by key but locks automatically when the door is closed.

On the day in question, at approximately 5:30 a.m., Claimant was let out of his cell to go to work in the tailor shop. On leaving the cell, he closed it and heard it lock. Claimant returned from work in the afternoon and found that his cell had been searched. Certain State-issued items had been taken by the officers. He also found a mirror was gone and his electric razor and a new bar of soap had been taken from a medicine cabinet in the rear of his cell. The medicine cabinet was not within the reach of passersby reaching their arms between the bars.

The cells on the gallery had been shaken down by Lieutenant Jimmerson and Captain Tibbie, who were looking for sheets.

Claimant immediately notified Lieutenant Jimmerson that his cell had been robbed. Claimant stated that Lieutenant Jimmerson told him, “He didn’t want to hear nothing about no razor coming up missing or some other stuff” and that “He said he didn’t want to hear nothing about it.”

Claimant then went to Captain Tibbie’s office. He testified Captain Tibbie told him that he was in the cells searching them for extra sheets and he may or may not have locked the door after he stepped out of the cell.

The institution did not search for the items nor have they ever been found or returned.

When Claimant left his cell, it was locked and his property was in its accustomed place. Captain Tibbie unlocked the cell to make a shakedown inspection. When Claimant returned in the afternoon, his property was missing.

The items missing were Claimant’s razor, soap and mirror.

Claimant testified that Captain Tibbie told him that he may or may not have locked the door after he stepped out of the cell. During the day, there is a lot of traffic in the gallery. Respondent could clearly anticipate that property could be stolen from an inmate’s cell in the absence of the inmate if an officer would unlock the cell and then let it remain unlocked. The razor could not have been stolen by someone reaching his hand through the bars. It was in a medicine cabinet at the far end of the cell. Only guards have keys to the cells, and Claimant testified the cell was locked when he left in the morning.

The doctrine of res ipsa loquitur would seem to be applicable in this case. The cell doors are under the control of the guards and the loss could not have occurred if a guard had not unlocked the door and let it remain unlocked.

The only defense offered by the State was the denial that Captain Tibbie made the statement testified to by Claimant.

It is the Court’s opinion that Claimant has made a clear, unrebutted prima facie case of negligence on the part of Respondent.

An award in the amount of $58.06, which was the amount Claimant alleged was the cost of the articles stolen, is hereby made to Claimant.


text:
    (No. 85-CC-2331
    Air Illinois, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed January 13, 1986.

    Jerry Burke, for Claimant.
    Neil F. Hartigan, Attorney General (Suzanne Schmitz, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This claim in the amount of $337.00 has been made because of a lapsed appropriation. The Respondent filed an answer and raised an affirmative defense of setoff based upon the fact that the Illinois Commerce Commission, an agency of the State of Illinois, has a claim against the Claimant for $10,773.00.

The claim was set for hearing before our commissioner on October 21,1985. The parties appeared before the commissioner. The Claimant had no evidence to present. No testimony was taken. The matter was presented to the commissioner on the materials and documents in the file. The file contains a departmental report from the Illinois Commerce Commission, which has been submitted as evidence pursuant to Rule 21 of the Court of Claims. In accordance with that rule, this report is prima facie evidence of the matters contained in the report.

The departmental report from the Illinois Commerce Commission shows that the Illinois Commerce Commission purchased $10,773.00 in prepaid tickets from the Claimant. Subsequently, the Claimant airline was shut down, and thereafter the Claimant airline filed proceedings in bankruptcy. The prepaid tickets were, therefore, not honored.

Based upon the report and the record in this matter, and based upon the fact that the Claimant is unable to present any evidence to contradict the departmental report, the claim should be denied.

It is therefore ordered, adjudged and decreed that the claim is denied, with prejudice.


text:
    (No. 85-CC-2436
    Dipaolo Company and Rossetti Contracting Co., Inc., a Joint Venture — No. 7, Claimant, v. The State of Illinois, Respondent.

      Order filed March 28, 1986.

    Francis M. Donovan, for Claimant.
    Niel F. Hartigan, Attorney General (Robert J. Sklamberg, Assistant Attorney General, of counsel), for Respondent.
   Montana, C.J.

This cause coining on to be heard on the motion of Respondent to dismiss the claim herein; due notice having been given the parties hereto, and the Court being fully advised in the premises;

The Court finds that the instant claim sounds in contract and is brought pursuant to section 8(b) of the Court of Claims Act (Ill. Rev. Stat, 1983, ch. 37, par. 439.8(b)). On March 12,1980, Claimant and Respondent executed the subject contract, No. 34050, for the installation of storm sewers and paving work along Waukegan Road in Deerfield, Illinois. Claimant is alleging that Respondent breached this construction contract.

The contract between Claimant and Respondent included, by reference, the standard specifications for road and bridge construction, adopted October 1, 1979 (“standard specifications”). Article 109.09 of the standard specifications states:

“109.09 Acceptance and Final Payment.
When the State of Illinois is the awarding authority, unless the Contractor files a claim for adjudication by the Court of Claims within 60 days after acceptance of final payment, the final payment shall constitute a release and waiver of any and all rights and privileges under the terms of the contract, and shall relieve the Department from any and all claims or liabilities for anything done or furnished relative to the work or for any act or neglect on the part of the Department relating to or connected with the contract.” (Emphasis added.)

We note that final payment for contract No. 34050 was issued to Claimant on January 5, 1982, accepted by Claimant’s bank on January 11, 1982, and paid by the State treasurer on January 12, 1982. The instant claim was filed on March 29, 1985, which is more than three years after Claimant accepted final payment for the contract it had entered into with Respondent.

Clearly, then, Claimant failed to file its claim within the time specified in its contract with Respondent. Under these circumstances, we are constrained to hold that Claimant is barred from maintaining the instant cause of action in this Court.

It is therefore ordered that Respondent’s motion be, and the same is, hereby granted, and the claim herein is dismissed, with prejudice.


text:
    (No. 85-CC-2600
    Alice Textor, Deborah Brue and Roberta Farrick, Claimants, v. The State of Illinois, Respondent.

      Order filed August 8, 1985.

    Edward F. Diedrich, for Claimant.
    Neil F. Hartigan, Attorney General (Kathleen O’Brien, Assistant Attorney General, of counsel), for Respondent.
   Raucci, J.

This claim is before the Court of Claims following the filing of a joint stipulation whereby the parties agreed as follows:

1. Respondent Board of Regents is a body corporate and politic and an agency of the State of Illinois. Ill. Rev. Stat. 1983, ch. 144, par. 301 et seq.

2. The claim in this cause is made against Respondent in its capacity as an agency of the State of Illinois and is brought under sections 8(a) and (b) of the Court of Claims Act (Ill. Rev. Stat. 1983, ch. 37, par. 439.8).

3. The claim in this cause is not made under “An Act to provide representation and indemnification” (Ill. Rev. Stat. 1983, ch. 127, par. 1301 et seq.).

4. Claimants were employed by the Board of Regents as physical education instructors and coaches of various sports teams at Northern Illinois University.

5. Northern Illinois University is an institution of higher education established by the State of Illinois; operated, managed, controlled and maintained by the Board of Regents, the Respondent.

6. During their employment as instructors and coaches at Northern Illinois University, Claimants were allegedly discriminated against by reason of their sex in violation of Federal statutory and constitutional rights and prohibitions.

7. As a result of the alleged discrimination, the Claimants filed, individually and on behalf of all other persons similarly situated, complaints for equitable, declaratory, monetary and other relief as civil actions in the United States District Court for the Northern District of Illinois, Eastern Division, in cause No. 80 C 378 and cause No. 80 C 379, naming the Respondent Board of Regents et al. as Defendants.

8. On April 12, 1985, after a trial of the cause, the District Court entered judgment for the Claimants consisting of an award of damages.

9. Claimants then attempted to collect their judgment in the United States District Court, but were ultimately required to file in the Illinois Court of Claims.

10. Among other things, the United States District Court judgment provided for payment of $42,500.00 to the Claimants.

11. The payment provided for in said judgment and set forth in paragraph 10 above should be made and an award of said sum should be made by this Court.

We have reviewed the record. The joint stipulation is corroborated by the record. There is nothing more for us to consider. In matters such as the one at bar this Court is but a vehicle for payment. Actually, whether or not this Court concurs with the parties’ joint stipulation and enters an award is immaterial because if the Federal court has jurisdiction to enter an order which is the subject of this claim (and it unquestionably does) the Federal court can enforce its order and require the State to pay regardless of any action by this Court and/or any action by the legislature.

It is hereby ordered that the Claimants, Alice Textor, Deborah Brue, and Roberta Farrick be and are hereby awarded the sum of $42,500.00.